


FARETTA V. CALIFORNIA, 422 U.S. 806 


       FARETTA V. CALIFORNIA

        CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT

        NO. 73 - 5772.  ARGUED NOVEMBER 19, 1974--DECIDED JUNE 30,

        1975; VACATED AND REMANDED. 


    THE SIXTH AMENDMENT AS MADE APPLICABLE TO THE STATES BY THE

  FOURTEENTH GUARANTEES THAT A DEFENDANT IN A STATE CRIMINAL TRIAL

  HAS AN INDEPENDENT CONSTITUTIONAL RIGHT OF SELF-REPRESENTATION

  AND THAT HE MAY PROCEED TO DEFEND HIMSELF WITHOUT COUNSEL WHEN HE

  VOLUNTARILY AND INTELLIGENTLY ELECTS TO DO SO; AND IN THIS CASE

  ACCEPT A STATE-APPOINTED PUBLIC DEFENDER AND IN DENYING HIS

  REQUEST TO CONDUCT HIS OWN DEFENSE.  PP. 812 - 836. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, WHITE, MARSHALL, AND POWELL, JJ., JOINED. 

  BURGER, C.J., FILED A DISSENTING OPINION, IN WHICH BLACKMUN AND

REHNQUIST, JJ., JOINED, POST, P. 836.  BLACKMUN, J., FILED A

  DISSENTING OPINION, IN WHICH BURGER, C.J., AND REHNQUIST, J.,

  JOINED, POST, P. 846. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE SIXTH AND FOURTEENTH AMENDMENTS OF OUR CONSTITUTION GUARANTEE
THAT A PERSON BROUGHT TO TRIAL IN ANY STATE OR FEDERAL COURT MUST BE
AFFORDED THE RIGHT TO THE ASSISTANCE OF COUNSEL BEFORE HE CAN BE
VALIDLY CONVICTED AND PUNISHED BY IMPRISONMENT.  THIS CLEAR
CONSTITUTIONAL RULE HAS EMERGED FROM A SERIES OF CASES DECIDED HERE
OVER THE LAST 50 YEARS.  /1/ THE QUESTION BEFORE US NOW IS WHETHER A
DEFENDANT IN A STATE CRIMINAL TRIAL HAS A CONSTITUTIONAL RIGHT TO
PROCEED WITHOUT COUNSEL WHEN HE VOLUNTARILY AND INTELLIGENTLY ELECTS TO
DO SO.  STATED ANOTHER WAY, THE QUESTION IS WHETHER A STATE MAY
CONSTITUTIONALLY HALE A PERSON INTO ITS CRIMINAL COURTS AND THERE FORCE
A LAWYER UPON HIM, EVEN WHEN HE INSISTS THAT HE WANTS TO CONDUCT HIS
OWN DEFENSE.  IT IS NOT AN EASY QUESTION, BUT WE HAVE CONCLUDED THAT A
STATE MAY NOT CONSTITUTIONALLY DO SO.

        I 

ANTHONY FARETTA WAS CHARGED WITH GRAND THEFT IN AN INFORMATION FILED
IN THE SUPERIOR COURT OF LOS ANGELES COUNTY, CAL.  AT THE ARRAIGNMENT,
THE SUPERIOR COURT JUDGE ASSIGNED TO PRESIDE AT THE TRIAL APPOINTED THE
PUBLIC DEFENDER TO REPRESENT FARETTA.  WELL BEFORE THE DATE OF TRIAL,
HOWEVER, FARETTA REQUESTED THAT HE BE PERMITTED TO REPRESENT HIMSELF. 
QUESTIONING BY THE JUDGE REVEALED THAT FARETTA HAD ONCE REPRESENTED
HIMSELF IN A CRIMINAL PROSECUTION, THAT HE HAD A HIGH SCHOOL EDUCATION,
AND THAT HE DID NOT WANT TO BE REPRESENTED BY THE PUBLIC DEFENDER
BECAUSE HE BELIEVED THAT THAT OFFICE WAS "VERY LOADED DOWN WITH . . . A
HEAVY CASE LOAD."  THE JUDGE RESPONDED THAT HE BELIEVED FARETTA WAS
"MAKING A MISTAKE" AND EMPHASIZED THAT IN FURTHER PROCEEDINGS FARETTA
WOULD RECEIVE NO SPECIAL FAVORS.  /2/  NEVERTHELESS, AFTER ESTABLISHING
THAT FARETTA WANTED TO REPRESENT HIMSELF AND DID NOT WANT A LAWYER, THE
JUDGE, IN A "PRELIMINARY RULING," ACCEPTED FARETTA'S WAIVER OF THE
ASSISTANCE OF COUNSEL.  THE JUDGE INDICATED, HOWEVER, THAT HE MIGHT
REVERSE THIS RULING IF IT LATER APPEARED THAT FARETTA WAS UNABLE
ADEQUATELY TO REPRESENT HIMSELF. 

SEVERAL WEEKS THEREAFTER, BUT STILL PRIOR TO TRIAL, THE JUDGE SUA
SPONTE HELD A HEARING TO INQUIRE INTO FARETTA'S ABILITY TO CONDUCT HIS
OWN DEFENSE, AND QUESTIONED HIM SPECIFICALLY ABOUT BOTH THE HEARSAY
RULE AND THE STATE LAW GOVERNING THE CHALLENGE OF POTENTIAL JURORS. 
/3/ AFTER CONSIDERATION OF FARETTA'S ANSWER.  AND OBSERVATION OF HIS
DEMEANOR, THE JUDGE RULED THAT FARETTA HAD NOT MADE AN INTELLIGENT AND
KNOWING WAIVER OF HIS RIGHT TO THE ASSISTANCE OF COUNSEL, AND ALSO
RULED THAT FARETTA HAD NO CONSTITUTIONAL RIGHT TO CONDUCT HIS OWN
DEFENSE.  /4/ THE JUDGE, ACCORDINGLY, REVERSED HIS EARLIER RULING
PERMITTING SELF-REPRESENTATION AND AGAIN APPOINTED THE PUBLIC DEFENDER
TO REPRESENT FARETTA.  FARETTA'S SUBSEQUENT REQUEST FOR LEAVE TO ACT AS
COCOUNSEL WAS REJECTED, AS WERE HIS EFFORTS TO MAKE CERTAIN MOTIONS ON
HIS OWN BEHALF.  /5/ THROUGHOUT THE SUBSEQUENT TRIAL, THE JUDGE
REQUIRED THAT FARETTA'S DEFENSE BE CONDUCTED ONLY THROUGH THE APPOINTED
LAWYER FROM THE PUBLIC DEFENDER'S OFFICE.  AT THE CONCLUSION OF THE
TRIAL, THE JURY FOUND FARETTA GUILTY AS CHARGED, AND THE JUDGE
SENTENCED HIM TO PRISON. 

THE CALIFORNIA COURT OF APPEAL, RELYING UPON A THEN-RECENT
CALIFORNIA SUPREME COURT DECISION THAT HAD EXPRESSLY DECIDED THE ISSUE,
/6/ AFFIRMED THE TRIAL JUDGE'S RULING THAT FARETTA HAD NO FEDERAL OR
STATE CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF.  /7/  ACCORDINGLY, THE
APPELLATE COURT AFFIRMED FARETTA'S CONVICTION.  A PETITION FOR
REHEARING WAS DENIED WITHOUT OPINION, AND THE CALIFORNIA SUPREME COURT
DENIED REVIEW.  /8/ WE GRANTED CERTIORARI.  415 U.S. 975. 

        II 

IN THE FEDERAL COURTS, THE RIGHT OF SELF-REPRESENTATION HAS BEEN
PROTECTED BY STATUTE SINCE THE BEGINNINGS OF OUR NATION.  SECTION 35 OF
THE JUDICIARY ACT OF 1789, 1 STAT. 73, 92, ENACTED BY THE FIRST
CONGRESS AND SIGNED BY PRESIDENT WASHINGTON ONE DAY BEFORE THE SIXTH
AMENDMENT WAS PROPOSED, PROVIDED THAT "IN ALL THE COURTS OF THE UNITED
STATES, THE PARTIES MAY PLEAD AND MANAGE THEIR OWN CAUSES PERSONALLY OR
BY THE ASSISTANCE OF.............COUNSEL...........".  THE RIGHT IS
CURRENTLY CODIFIED IN 28 U.S.C. 1654. 

WITH FEW EXCEPTIONS, EACH OF THE SEVERAL STATES ALSO ACCORDS A
DEFENDANT THE RIGHT TO REPRESENT HIMSELF IN ANY CRIMINAL CASE.  /9/ THE
CONSTITUTIONS OF 36 STATES EXPLICITLY CONFER THAT RIGHT.  /10/
MOREOVER, MANY STATE COURTS HAVE EXPRESSED THE VIEW THAT THE RIGHT IS
ALSO SUPPORTED BY THE CONSTITUTION OF THE UNITED STATES.  /11/ 

THIS COURT HAS MORE THAN ONCE INDICATED THE SAME VIEW.  IN ADAMS V.
UNITED STATES EX REL. MCCANN, 317 U.S. 269, 279, THE COURT RECOGNIZED
THAT THE SIXTH AMENDMENT RIGHT TO THE ASSISTANCE OF COUNSEL IMPLICITLY
EMBODIES A "CORRELATIVE RIGHT TO DISPENSE WITH A LAWYER'S HELP."  THE
DEFENDANT IN THAT CASE, INDICTED FOR FEDERAL MAIL FRAUD VIOLATIONS,
INSISTED ON CONDUCTING HIS OWN DEFENSE WITHOUT BENEFIT OF COUNSEL.  HE
ALSO REQUESTED A BENCH TRIAL AND SIGNED A WAIVER OF HIS RIGHT TO TRIAL
BY JURY.  THE PROSECUTION CONSENTED TO THE WAIVER OF A JURY, AND THE
WAIVER WAS ACCEPTED BY THE COURT.  THE DEFENDANT WAS CONVICTED, BUT THE
COURT OF APPEALS REVERSED THE CONVICTION ON THE GROUND THAT A PERSON
ACCUSED OF A FELONY COULD NOT COMPETENTLY WAIVE HIS RIGHT TO TRIAL BY
JURY EXCEPT UPON THE ADVICE OF A LAWYER.  THIS COURT REVERSED AND
REINSTATED THE CONVICTION, HOLDING THAT "AN ACCUSED, IN THE EXERCISE OF
A FREE AND INTELLIGENT CHOICE, AND WITH THE CONSIDERED APPROVAL OF THE
COURT, MAY WAIVE TRIAL BY JURY, AND SO LIKEWISE MAY HE COMPETENTLY AND
INTELLIGENTLY WAIVE HIS CONSTITUTIONAL RIGHT TO ASSISTANCE OF
COUNSEL."  ID., AT 275. 

THE ADAMS CASE DOES NOT, OF COURSE, NECESSARILY RESOLVE THE ISSUE
BEFORE US.  IT HELD ONLY THAT "THE CONSTITUTION DOES NOT FORCE A LAWYER
UPON A DEFENDANT."  ID., AT 279.  /12/ WHETHER THE CONSTITUTION FORBIDS
A STATE FROM FORCING A LAWYER UPON A DEFENDANT IS A DIFFERENT
QUESTION.  BUT THE COURT IN ADAMS DID RECOGNIZE, ALBEIT IN DICTUM, AN
AFFIRMATIVE RIGHT OF SELF-REPRESENTATION: 

     "THE RIGHT TO ASSISTANCE OF COUNSEL AND THE CORRELATIVE RIGHT

  TO DISPENSE WITH A LAWYER'S HELP ARE NOT LEGAL FORMALISMS.  THEY

  REST ON CONSIDERATIONS THAT GO TO THE SUBSTANCE OF AN ACCUSED'S

POSITION BEFORE THE LAW.  . . . 

     ". . . WHAT WERE CONTRIVED AS PROTECTIONS FOR THE ACCUSED

  SHOULD NOT BE TURNED INTO FETTERS.  . . . TO DENY AN ACCUSED A

  CHOICE OF PROCEDURE IN CIRCUMSTANCES IN WHICH HE, THOUGH A

  LAYMAN, IS AS CAPABLE AS ANY LAWYER OF MAKING AN INTELLIGENT

CHOICE, IS TO IMPAIR THE WORTH OF GREAT CONSTITUTIONAL SAFEGUARDS

  BY TREATING THEM AS EMPTY VERBALISMS. 

     ". . . WHEN THE ADMINISTRATION OF THE CRIMINAL LAW.  . . IS

HEDGED ABOUT AS IT IS BY THE CONSTITUTIONAL SAFEGUARDS FOR THE

  PROTECTION OF AN ACCUSED, TO DENY HIM IN THE EXERCISE OF HIS FREE

  CHOICE THE RIGHT TO DISPENSE WITH SOME OF THESE SAFEGUARDS . . .

  IS TO IMPRISON A MAN IN HIS PRIVILEGES AND CALL IT THE

  CONSTITUTION."  ID., AT 279 - 280 (EMPHASIS ADDED). 

IN OTHER SETTINGS AS WELL, THE COURT HAS INDICATED THAT A DEFENDANT
HAS A CONSTITUTIONALLY PROTECTED RIGHT TO REPRESENT HIMSELF IN A
CRIMINAL TRAIL.  FOR EXAMPLE, IN SNYDER V. MASSACHUSETTS, 291 U.S. 97,
THE COURT HELD THAT THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT
GIVES THE ACCUSED A RIGHT TO BE PRESENT AT ALL STAGES OF THE
PROCEEDINGS WHERE FUNDAMENTAL FAIRNESS MIGHT BE THWARTED BY HIS
ABSENCE.  THIS RIGHT TO "PRESENCE" WAS BASED UPON THE PREMISE THAT THE
"DEFENSE MAY BE MADE EASIER IF THE ACCUSED IS PERMITTED TO BE PRESENT
AT THE EXAMINATION OF JURORS OR THE SUMMING UP OF COUNSEL, FOR IT WILL
BE IN HIS POWER, IF PRESENT, TO GIVE ADVICE OR SUGGESTION OR EVEN TO
SUPERSEDE HIS LAWYERS ALTOGETHER AND CONDUCT THE TRIAL HIMSELF."  ID.,
AT 106 (EMPHASIS ADDED).  AND IN PRICE V. JOHNSTON, 334 U.S. 266, THE
COURT, IN HOLDING THAT A CONVICTED PERSON HAD NO ABSOLUTE RIGHT TO
ARGUE HIS OWN APPEAL, SAID THIS HOLDING WAS IN "SHARP CONTRAST" TO HIS
"RECOGNIZED PRIVILEGE OF CONDUCTING HIS OWN DEFENSE AT THE TRIAL." 
ID., AT 285. 

THE UNITED STATES COURTS OF APPEALS HAVE REPEATEDLY HELD THAT THE
RIGHT OF SELF-REPRESENTATION IS PROTECTED BY THE BILL OF RIGHTS.  IN
UNITED STATES V. PLATTNER, 330 F.2D 271, THE COURT OF APPEALS FOR THE
SECOND CIRCUIT EMPHASIZED THAT THE SIXTH AMENDMENT GRANTS THE ACCUSED
THE RIGHTS OF CONFRONTATION, OF COMPULSORY PROCESS FOR WITNESSES IN HIS
FAVOR, AND OF ASSISTANCE OF COUNSEL AS MINIMUM PROCEDURAL REQUIREMENTS
IN FEDERAL CRIMINAL PROSECUTIONS.  THE RIGHT TO THE ASSISTANCE OF
COUNSEL, THE COURT CONCLUDED, WAS INTENDED TO SUPPLEMENT THE OTHER
RIGHTS OF THE DEFENDANT, AND NOT TO IMPAIR "THE ABSOLUTE AND PRIMARY
RIGHT TO CONDUCT ONE'S OWN DEFENSE IN PROPRIA PERSONA."  ID., AT 274. 
THE COURT FOUND SUPPORT FOR ITS DECISION IN THE LANGUAGE OF THE 1789
FEDERAL STATUTE; IN THE STATUTES AND RULES GOVERNING CRIMINAL
PROCEDURE, SEE 28 U.S.C. 1654, AND FED. RULE CRIM. PROC. 44; IN THE
MANY STATE CONSTITUTIONS THAT EXPRESSLY GUARANTEE SELF-REPRESENTATION;
AND IN THIS COURT'S RECOGNITION OF THE RIGHT IN ADAMS AND PRICE.  ON
THESE GROUNDS, THE COURT OF APPEALS HELD THAT IMPLICIT IN THE FIFTH
AMENDMENT'S GUARANTEE OF DUE PROCESS OF LAW, AND IMPLICIT ALSO IN THE
SIXTH AMENDMENT'S GUARANTEE OF A RIGHT TO THE ASSISTANCE OF COUNSEL, IS
"THE RIGHT OF THE ACCUSED PERSONALLY TO MANAGE AND CONDUCT HIS OWN
DEFENSE IN A CRIMINAL CASE."  330 F.2D, AT 274.  SEE ALSO UNITED STATES
EX REL. MALDONADO V. DENNO, 348 F.2D 12, 15 (CA2); MACKENNA V. ELLIS,
263 F.2D 35, 41 (CA5); UNITED STATES V. STERNMAN, 415 F.2D 1165, 1169 -
1170 (CA6); LOWE V. UNITED STATES, 418 F.2D 100, 103 (CA7); UNITED
STATES V. WARNER, 428 F.2D 730, 733 (CA8); HASLAM V. UNITED STATES, 431
F.2D 362, 365 (CA9); COMPARE UNITED STATES V. DOUGHERTY, 154
U.S.APP.D.C. 76, 86, 473 F.2D 1113, 1123 (INTIMATING RIGHT IS
CONSTITUTIONAL BUT FINDING IT UNNECESSARY TO REACH ISSUE) WITH BROWN V.
UNITED STATES, 105 U.S.APP.D.C. 77, 79 - 80, 264 F.2D 363, 365 - 366
(PLURALITY OPINION STATING RIGHT IS NO MORE THAN STATUTORY IN NATURE). 

THIS COURT'S PAST RECOGNITION OF THE RIGHT OF SELF-REPRESENTATION,
THE FEDERAL COURT AUTHORITY HOLDING THE RIGHT TO BE OF CONSTITUTIONAL
DIMENSION, AND THE STATE CONSTITUTIONS POINTING TO THE RIGHT'S
FUNDAMENTAL NATURE FORM A CONSENSUS NOT EASILY IGNORED.  "(THE MERE
FACT THAT A PATH IS A BEATEN ONE," MR. JUSTICE JACKSON ONCE OBSERVED,
"IS A PERSUASIVE REASON FOR FOLLOWING IT."  /13/ WE CONFRONT HERE A
NEARLY UNIVERSAL CONVICTION, IN THE PART OF OUR PEOPLE AS WELL AS OUR
COURTS, THAT FORCING A LAWYER UPON AN UNWILLING DEFENDANT IS CONTRARY
TO HIS BASIC RIGHT TO DEFEND HIMSELF IF HE TRULY WANTS TO DO SO.

        III 

THIS CONSENSUS IS SOUNDLY PREMISED.  THE RIGHT OF SELF
REPRESENTATION FINDS SUPPORT IN THE STRUCTURE OF THE SIXTH AMENDMENT,
AS WELL AS IN THE ENGLISH AND COLONIAL JURISPRUDENCE FROM WHICH THE
AMENDMENT EMERGED. 

        A 

THE SIXTH AMENDMENT INCLUDES A COMPACT STATEMENT OF THE RIGHTS
NECESSARY TO A FULL DEFENSE: 

     "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE

RIGHT.  . .TO BE INFORMED OF THE NATURE AND CAUSE OF THE

ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM; TO

  HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR, AND

  TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

BECAUSE THESE RIGHTS ARE BASIC TO OUR ADVERSARY SYSTEM OF CRIMINAL
JUSTICE, THEY ARE PART OF THE "DUE PROCESS OF LAW" THAT IS GUARANTEED
BY THE FOURTEENTH AMENDMENT TO DEFENDANTS IN THE CRIMINAL COURTS OF THE
STATES.  /14/ THE RIGHTS TO NOTICE, CONFRONTATION, AND COMPULSORY
PROCESS, WHEN TAKEN TOGETHER, GUARANTEE THAT A CRIMINAL CHARGE MAY BE
ANSWERED IN A MANNER NOW CONSIDERED FUNDAMENTAL TO THE FAIR
ADMINISTRATION OF AMERICAN JUSTICE--THROUGH THE CALLING AND
INTERROGATION OF FAVORABLE WITNESSES, THE CROSS-EXAMINATION OF ADVERSE
WITNESSES, AND THE ORDERLY INTRODUCTION OF EVIDENCE.  IN SHORT, THE
AMENDMENT CONSTITUTIONALIZES THE RIGHT IN AN ADVERSARY CRIMINAL TRIAL
TO MAKE A DEFENSE AS WE KNOW IT.  SEE CALIFORNIA V. GREEN, 399 U.S.
149, 176 (HARLAN, J., CONCURRING). 

THE SIXTH AMENDMENT DOES NOT PROVIDE MERELY THAT A DEFENSE SHALL BE
MADE FOR THE ACCUSED; IT GRANTS TO THE ACCUSED PERSONALLY THE RIGHT TO
MAKE HIS DEFENSE.  IT IS THE ACCUSED, NOT COUNSEL, WHO MUST BE
"INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION," WHO MUST BE
"CONFRONTED WITH THE WITNESSES AGAINST HIM," AND WHO MUST BE ACCORDED
"COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR."  ALTHOUGH
NOT STATED IN THE AMENDMENT IN SO MANY WORDS, THE RIGHT TO SELF
REPRESENTATION--TO MAKE ONE'S OWN DEFENSE PERSONALLY--IS THUS
NECESSARILY IMPLIED BY THE STRUCTURE OF THE AMENDMENT.  /15/ THE RIGHT
TO DEFEND IS GIVEN DIRECTLY TO THE ACCUSED; FOR IT IS HE WHO SUFFERS
THE CONSEQUENCES IF THE DEFENSE FAILS 

THE COUNSEL PROVISION SUPPLEMENTS THIS DESIGN.  IT SPEAKS OF THE
"ASSISTANCE" OF COUNSEL, AND AN ASSISTANT, HOWEVER EXPERT, IS STILL AN
ASSISTANT.  THE LANGUAGE AND SPIRIT OF THE SIXTH AMENDMENT CONTEMPLATE
THAT COUNSEL, LIKE THE OTHER DEFENSE TOOLS GUARANTEED BY THE AMENDMENT,
SHALL BE AN AID TO A WILLING DEFENDANT--NOT AN ORGAN OF THE STATE
INTERPOSED BETWEEN AN UNWILLING DEFENDANT AND HIS RIGHT TO DEFEND
HIMSELF PERSONALLY.  TO THRUST COUNSEL UPON THE ACCUSED, AGAINST HIS
CONSIDERED WISH, THUS VIOLATES THE LOGIC OF THE AMENDMENT.  IN SUCH A
CASE, COUNSEL IS NOT AN ASSISTANT, BUT A MASTER; /16/ AND THE RIGHT TO
MAKE A DEFENSE IS STRIPPED OF THE PERSONAL CHARACTER UPON WHICH THE
AMENDMENT INSISTS.  IT IS TRUE THAT WHEN A DEFENDANT CHOOSES TO HAVE A
LAWYER MANAGE AND PRESENT HIS CASE, LAW AND TRADITION MAY ALLOCATE TO
THE COUNSEL THE POWER TO MAKE BINDING DECISIONS OF TRIAL STRATEGY IN
MANY AREAS.  CF. HENRY V. MISSISSIPPI, 379 U.S. 443, 451; BROOKHART V.
JANIS, 384 U.S. 1, 7 - 8; FAY V. NOIA, 372 U.S. 391, 439.  THIS
ALLOCATION CAN ONLY BE JUSTIFIED, HOWEVER, BY THE DEFENDANT'S CONSENT,
AT THE OUTSET, TO ACCEPT COUNSEL AS HIS REPRESETATIVE.  AN UNWANTED
COUNSEL "REPRESENTS" THE DEFENDANT ONLY THROUGH A TENUOUS AND
UNACCEPTABLE LEGAL FICTION.  UNLESS THE ACCUSED HAS ACQUIESCED IN SUCH
REPRESENTATION, THE DEFENSE PRESENTED IS NOT THE DEFENSE GUARANTEED HIM
BY THE CONSTITUTION, FOR, IN A VERY REAL SENSE, IT IS NOT HIS DEFENSE. 

        B 

THE SIXTH AMENDMENT, WHEN NATURALLY READ, THUS IMPLIES A RIGHT OF
SELF-REPRESENTATION.  THIS READING IS REINFORCED BY THE AMENDMENT'S
ROOTS IN ENGLISH LEGAL HISTORY. 

IN THE LONG HISTORY OF BRITISH CRIMINAL JURISPRUDENCE, THERE WAS
ONLY ONE TRIBUNAL THAT EVER ADOPTED A PRACTICE OF FORCING COUNSEL UPON
AN UNWILLING DEFENDANT IN A CRIMINAL PROCEEDING.  THE TRIBUNAL WAS THE
STAR CHAMBER.  THAT CURIOUS INSTITUTION, WHICH FLOURISHED IN THE LATE
16TH AND EARLY 17TH CENTURIES, WAS OF MIXED EXECUTIVE AND JUDICIAL
CHARACTER, AND CHARACTERISTICALLY DEPARTED FROM COMMON-LAW TRADITIONS. 
FOR THOSE REASONS, AND BECAUSE IT SPECIALIZED IN TRYING "POLITICAL"
OFFENSES, THE STAR CHAMBER HAS FOR CENTURIES SYMBOLIZED DISREGARD OF
BASIC INDIVIDUAL RIGHTS.  /17/ THE STAR CHAMBER COURT NOT MERELY
ALLOWED BUT REQUIRED DEFENDANTS TO HAVE COUNSEL.  THE DEFENDANT'S
ANSWER TO AN INDICTMENT WAS NOT ACCEPTED UNLESS IT WAS SIGNED BY
COUNSEL.  WHEN COUNSEL REFUSED TO SIGN THE ANSWER, FOR WHATEVER REASON,
THE DEFENDANT WAS CONSIDERED TO HAVE CONFESSED.  /18/  STEPHEN
COMMENTED ON THIS PROCEDURE:  "THERE IS SOMETHING SPECIALLY REPUGNANT
TO JUSTICE IN USING RULES OF PRACTICE IN SUCH A MANNER AS TO DEBAR A
PRISONER FROM DEFENDING HIMSELF, ESPECIALLY WHEN THE PROFESSED OBJECT
OF THE RULES SO USED IS TO PROVIDE FOR HIS DEFENCE."  1 J. STEPHEN, A
HISTORY OF THE CRIMINAL LAW OF ENGLAND 341 - 342 (1883).  THE STAR
CHAMBER WAS SWEPT AWAY IN 1641 BY THE REVOLUTIONARY FERVOR OF THE LONG
PARLIAMENT.  THE NOTION OF OBLIGATORY COUNSEL DISAPPEARED WITH IT. 

BY THE COMMON LAW OF THAT TIME, IT WAS NOT REPRESENTATION BY COUNSEL
BUT SELF-REPRESENTATION THAT WAS THE PRACTICE IN PROSECUTIONS FOR
SERIOUS CRIME.  AT ONE TIME, EVERY LITIGANT WAS REQUIRED TO "APPEAR
BEFORE THE COURT IN HIS OWN PERSON AND CONDUCT HIS OWN CAUSE IN HIS OWN
WORDS."  /19/ WHILE A RIGHT TO COUNSEL DEVELOPED EARLY IN CIVIL CASES
AND IN CASES OF MISDEMEANOR, A PROHIBITION AGAINST THE ASSISTANCE OF
COUNSEL CONTINUED FOR CENTURIES IN PROSECUTIONS FOR FELONY OR TREASON. 
/20/ THUS, IN THE 16TH AND 17TH CENTURIES THE ACCUSED FELON OR TRAITOR
STOOD ALONE, WITH NEITHER COUNSEL NOR THE BENEFIT OF OTHER RIGHTS--TO
NOTICE, CONFRONTATION, AND COMPULSORY PROCESS--THAT WE NOW ASSOCIATE
WITH A GENUINELY FAIR ADVERSARY PROCEEDING.  THE TRIAL WAS MERELY A
"LONG ARGUMENT BETWEEN THE PRISONER AND THE COUNSEL FOR THE CROWN." 
/21/  AS HARSH AS THIS NOW SEEMS, AT LEAST "THE PRISONER WAS ALLOWED TO
MAKE WHAT STATEMENTS HE LIKED.  . . . OBVIOUSLY THIS PUBLIC ORAL TRIAL
PRESENTED MANY MORE OPPORTUNITIES TO A PRISONER THAN THE SECRET ENQUIRY
BASED ON WRITTEN DEPOSITIONS, WHICH, ON THE CONTINENT, HAD TAKEN THE
PLACE OF A TRIAL.  . . ."  /22/ 

WITH THE TREASON ACT OF 1695, THERE BEGAN A LONG AND IMPORTANT ERA
OF REFORM IN ENGLISH CRIMINAL PROCEDURE.  THE 1695 STATUTE GRANTED TO
THE ACCUSED TRAITOR THE RIGHTS TO A COPY OF THE INDICTMENT, TO HAVE HIS
WITNESSES TESTIFY UNDER OATH, AND "TO MAKE.  . .FULL DEFENCE, BY
COUNSEL LEARNED IN THE LAW."  /23/ IT ALSO PROVIDED FOR COURT
APPOINTMENT OF COUNSEL, BUT ONLY IF THE ACCUSED SO DESIRED.  /24/ THUS,
AS NEW RIGHTS DEVELOPED, THE ACCUSED RETAINED HIS ESTABLISHED RIGHT "TO
MAKE WHAR STATEMENTS HE LIKED."  /25/  THE RIGHT TO COUNSEL WAS VIEWED
AS GUARANTEEING A CHOICE BETWEEN REPRESENTATION BY COUNSEL AND THE
TRADITIONAL PRACTICE OF SELF-REPRESENTATION.  THE BAN ON COUNSEL IN
FELONY CASES, WHICH HAD BEEN SUBSTANTIALLY ERODED IN THE COURTS, /26/
WAS FINALLY ELIMINATED BY STATUTE IN 1836.  /27/ IN MORE RECENT YEARS,
PARLIAMENT HAS PROVIDED FOR COURT APPOINTMENT OF COUNSEL IN SERIOUS
CRIMINAL CASES, BUT ONLY AT THE ACCUSED'S REQUEST.  /28/ AT NO POINT IN
THIS PROCESS OF REFORM IN ENGLAND WAS COUNSEL EVER FORCED UPON THE
DEFENDANT.  THE COMMON-LAW RULE, SUCCINCITY SATED IN R. V. WOODWARD,
(1944) K. B. 118, 119, (1944) 1 ALL E. R. 159, 160, HAS EVIDENTLY
ALWAYS BEEN THAT "NO PERSON CHARGED WITH A CRIMINAL OFFENCE CAN HAVE
COUNSEL FORCED UPON HIM AGAINST HIS WILL."  /29/ SEE 3 HALSBURY'S LAWS
OF ENGLAND 1141, PP. 624 - 625 (4TH ED. 1973); R. V. MAYBURY, 11 L. T.
R. (N.S.)  566 (Q.B. 1865). 

        C 

IN THE AMERICAN COLONIES THE INSISTENCE UPON A RIGHT OF SELF
REPRESENTATION WAS, IF ANYTHING, MORE FERVENT THAN IN ENGLAND. 

THE COLONISTS BROUGHT WITH THEM AN APPRECIATION OF THE VIRTUES OF
SELF-RELIANCE AND A TRADITIONAL DISTRUST OF LAWYERS.  WHEN THE COLONIES
WERE FIRST SETTLED, "THE LAWYER WAS SYNONYMOUS WITH THE CRINGING
ATTORNEYS-GENERAL AND SOLICITORS-GENERAL OF THE CROWN AND THE ARBITRARY
JUSTICES OF THE KING'S COURT, ALL BENT ON THE CONVICTION OF THOSE WHO
OPPOSED THE KING'S PREROGATIVES, AND TWISTING THE LAW TO SECURE
CONVICTIONS."  /30/ THIS PREJUDICE GAINED STRENGTH IN THE COLONIES
WHERE "DISTRICT OF LAWYERS BECAME AN INSTITUTION."  /31/  SEVERAL
COLONIES PROHIBITED PLEADING FOR HIRE IN THE 17TH CENTURY.  /32/ THE
PREJUDICE PERSISTED INTO THE 18TH CENTURY AS "THE LOWER CLASSES CAME TO
IDENTIFY LAWYERS WITH THE UPPER CLASS."  /33/ THE YEARS OF REVOLUTION
AND CONFEDERATION SAW AN UPSURGE OF ANTILAWYER SENTIMENT, A "SUDDEN
REVIVAL, AFTER THE WAR OF THE REVOLUTION, OF THE OLD DISLIKE AND
DISTRUST OF LAWYERS AS A CLASS."  /34/ IN THE HEAT OF THESE SENTIMENTS
THE CONSTITUTION WAS FORGED. 

THIS IS NOT TO SAY THAT THE COLONIES WERE SLOW TO RECOGNIZE THE
VALUE OF COUNSEL IN CRIMINAL CASES.  COLONIAL JUDGES SOON DEPARTED FROM
ANCIENT ENGLISH PRACTICE AND ALLOWED ACCUSED FELONS THE AID OF COUNSEL
FOR THEIR DEFENSE.  /35/ AT THE SAME TIME, HOWEVER, THE BASIC RIGHT OF
SELF-REPRESENTATION WAS NEVER QUESTIONED.  WE HAVE FOUND NO INSTANCE
WHERE A COLONIAL COURT REQUIRED A DEFENDANT IN A CRIMINAL CASE TO
ACCEPT AS HIS REPRESENTATIVE AN UNWANTED LAWYER.  INDEED, EVEN WHERE
COUNSEL WAS PERMITTED, THE GENERAL PRACTICE CONTINUED TO BE SELF
REPRESENTATION.  /36/ 

THE RIGHT OF SELF-REPRESENTATION WAS GUARANTEED IN MANY COLONIAL
CHARTERS AND DECLARATIONS OF RIGHTS.  THESE EARLY DOCUMENTS ESTABLISH
THAT THE "RIGHT TO COUNSEL" MEANT TO THE COLONISTS A RIGHT TO CHOOSE
BETWEEN PLEADING THROUGH A LAWYER AND REPRESENTING ONESELF.  /37/ AFTER
THE DECLARATION OF INDEPENDENCE, THE RIGHT OF SELF-REPRESENTATION,
ALONG WITH OTHER RIGHTS BASIC TO THE MAKING OF A DEFENSE, ENTERED THE
NEW STATE CONSTITUTIONS IN WHOLESALE FASHION.  /38/  THE RIGHT TO
COUNSEL WAS CLEARLY THOUGHT TO SUPPLEMENT THE PRIMARY RIGHT OF THE
ACCUSED TO DEFEND HIMSELF, /39/ UTILIZING HIS PERSONAL RIGHTS TO
NOTICE, CONFRONTATION AND COMPULSORY PROCESS.  AND WHEN THE COLONIES OR
NEWLY INDEPENDENT STATES PROVIDED BY STATUTE RATHER THAN BY
CONSTITUTION FOR COURT APPOINTMENT OF COUNSEL IN CRIMINAL CASES, THEY
ALSO METICULOUSLY PRESERVED THE RIGHT OF THE ACCUSED TO DEFEND HIMSELF
PERSONALLY.  /40/ 

THE RECOGNITION OF THE RIGHT OF SELF-REPRESENTATION WAS NOT LIMITED
TO THE STATE LAWMAKERS.  AS WE HAVE NOTED, 35 OF THE JUDICIARY ACT OF
1789, SIGNED ONE DAY BEFORE THE SIXTH AMENDMENT WAS PROPOSED,
GUARANTEED IN THE FEDERAL COURTS THE RIGHT OF ALL PARTIES TO "PLEAD AND
MANAGE THEIR OWN CAUSES PERSONALLY OR BY THE ASSISTANCE OF . . .
COUNSEL."  1 STAT. 92.  SEE 28 U.S.C. 1654.  AT THE TIME JAMES MADISON
DRAFIED THE SIXTH AMENDMENT, SOME STATE CONSTITUTIONS GUARANTEED AN
ACCUSED THE RIGHT TO BE HEARD "BY HIMSELF" AND BY COUNSEL; OTHERS
PROVIDED THAT AN ACCUSED WAS TO BE "ALLOWED" COUNSEL.  /41/ THE VARIOUS
STATE PROPOSALS FOR THE BILL OF RIGHTS HAD SIMILAR VARIATIONS IN
TERMINOLOGY.  /42/  IN EACH CASE, HOWEVER, THE COUNSEL PROVISION WAS
EMBEDDED IN A PACKAGE OF DEFENSE RIGHTS GRANTED PERSONALLY TO THE
ACCUSED.  THERE IS NO INDICATION THAT THE DIFFERENCES IN PHRASING ABOUT
"COUNSEL" REFLECTED ANY DIFFERENCES OF PRINCIPLE ABOUT SELF
REPRESENTATION.  NO STATE OR COLONY HAD EVER FORCED COUNSEL UPON AN
ACCUSED; NO SPOKESMAN HAD EVER SUGGESTED THAT SUCH A PRACTICE WOULD BE
TOLERABLE, MUCH LESS ADVISABLE.  IF ANYONE HAD THOUGHT THAT THE SIXTH
AMENDMENT, AS DRAFTED, FAILED TO PROTECT THE LONG-RESPECTED RIGHT OF
SELF-REPRESENTATION, THERE WOULD UNDOUBTEDLY HAVE BEEN SOME DEBATE OR
COMMENT ON THE ISSUE.  BUT THERE WAS NONE. 

IN SUM, THERE IS NO EVIDENCE THAT THE COLONISTS AND THE FRAMERS EVER
DOUBTED THE RIGHT OF SELF-REPRESENTATION, OR IMAGINED THAT THIS RIGHT
MIGHT BE CONSIDERED INFERIOR TO THE RIGHT OF ASSISTANCE OF COUNSEL.  TO
THE CONTRARY, THE COLONISTS AND THE FRAMERS, AS WELL AS THEIR ENGLISH
ANCESTORS, ALWAYS CONCEIVED OF THE RIGHT TO COUNSEL AS AN "ASSISTANCE"
FOR THE ACCUSED, TO BE USED AT HIS OPTION, IN DEFENDING HIMSELF.  THE
FRAMERS SELECTED IN THE SIXTH AMENDMENT A FORM OF WORDS THAT
NECESSARILY IMPLIES THE RIGHT OF SELF-REPRESENTATION.  THAT CONCLUSION
IS SUPPORTED BY CENTURIES OF CONSISTENT HISTORY. 

        IV 

THERE CAN BE NO BLINKING THE FACT THAT THE RIGHT OF AN ACCUSED TO
CONDUCT HIS OWN DEFENSE SEEMS TO CUT AGAINST THE GRAIN OF THIS COURT'S
DECISIONS HOLDING THAT THE CONSTITUTION REQUIRES THAT NO ACCUSED CAN BE
CONVICTED AND IMPRISONED UNLESS HE HAS BEEN ACCORDED THE RIGHT TO THE
ASSISTANCE OF COUNSEL.  SEE POWELL V. ALABAMA, 287 U. S. 45; JOHNSON V.
ZERBST, 304 U. S. 458; GIDEON V. WAINWRIGHT, 372 U. S. 335; ARGERSINGER
V. HAMLIN, 407 U. S. 25.  FOR IT IS SURELY TRUE THAT THE BASIC THESIS
OF THOSE DECISIONS IS THAT THE HELP OF A LAWYER IS ESSENTIAL TO ASSURE
THE DEFENDANT A FAIR TRAIL.  /43/  AND A STRONG ARGUMENT CAN SURELY BE
MADE THAT THE WHOLE THRUST OF THOSE DECISIONS MUST INEVITABLY LEAD TO
THE CONCLUSION THAT A STATE MAY CONSTITUTIONALLY IMPOSE A LAWYER UPON
EVEN AN UNWILLING DEFENDANT. 

BUT IT IS ONE THING TO HOLD THAT EVERY DEFENDANT, RICH OR POOR, HAS
THE RIGHT TO THE ASSISTANCE OF COUNSEL, AND QUITE ANOTHER TO SAY THAT A
STATE MAY COMPEL A DEFENDANT TO ACCEPT A LAWYER HE DOES NOT WANT.  THE
VALUE OF STATE-APPOINTED COUNSEL WAS NOT UNAPPRECIATED BY THE FOUNDERS,
/44/ YET THE NOTION OF COMPULSORY COUNSEL WAS UTTERLY FOREIGN TO THEM. 
AND WHATEVER ELSE MAY BE SAID OF THOSE WHO WROTE THE BILL OF RIGHTS,
SURELY THERE CAN BE NO DOUBT THAT THEY UNDERSTOOD THE INESTIMABLE WORTH
OF FREE CHOICE.  /45/ 

IT IS UNDENIABLE THAT IN MOST CRIMINAL PROSECUTIONS DEFENDANTS COULD
BETTER DEFEND WITH COUNSEL'S GUIDANCE THAN BY THEIR OWN UNSKILLED
EFFORTS.  BUT WHERE THE DEFENDANT WILL NOT VOLUNTARILY ACCEPT
REPRESENTATION BY COUNSEL, THE POTENTIAL ADVANTAGE OF A LAWYER'S
TRAINING AND EXPERIENCE CAN BE REALIZED, IF AT ALL, ONLY IMPERFECTLY. 
TO FORCE A LAWYER ON A DEFENDANT CAN ONLY LEAD HIM TO BELIEVE THAT THE
LAW CONTRIVES AGAINST HIM.  MOREOVER, IT IS NOT INCONCEIVABLE THAT IN
SOME RARE INSTANCES, THE DEFENDANT MIGHT IN FACT PRESENT HIS CASE MORE
EFFECTIVELY BY CONDUCTING HIS OWN DEFENSE.  PERSONAL LIBERTIES ARE NOT
ROOTED IN THE LAW OF AVERAGES.  THE RIGHT TO DEFEND IS PERSONAL.  THE
DEFENDANT, AND NOT HIS LAWYER OR THE STATE, WILL BEAR THE PERSONAL
CONSEQUENCES OF A CONVICTION.  IT IS THE DEFENDANT, THEREFORE, WHO MUST
BE FREE PERSONALLY TO DECIDE WHETHER IN HIS PARTICULAR CASE COUNSEL IS
TO HIS ADVANTAGE.  AND ALTHOUGH HE MAY CONDUCT HIS OWN DEFENSE
ULTIMATELY TO HIS OWN DETRIMENT, HIS CHOICE MUST BE HONORED OUT OF
"THAT RESPECT FOR THE INDIVIDUAL WHICH IS THE LIFEBLOOD OF THE LAW." 
ILLINOIS V. ALLEN, 397 U. S. 337, 350 - 351 (BRENNAN, J., CONCURRING). 
/46/

        V 

WHEN AN ACCUSED MANAGES HIS OWN DEFENSE, HE RELINQUISHES, AS A
PURELY FACTUAL MATTER, MANY OF THE TRADITIONAL BENEFITS ASSOCIATED WITH
THE RIGHT TO COUNSEL.  FOR THIS REASON, IN ORDER TO REPRESENT HIMSELF,
THE ACCUSED MUST "KNOWINGLY AND INTELLIGENTLY" FORGO THOSE RELINQUISHED
BENEFITS.  JOHNSON V. ZERBST, 304 U. S., AT 464 - 465.  CF. VON MOLTKE
V. GILLIES, 332 U. S. 708, 723 - 724 (PLURALITY OPINION OF BLACK, J.). 
ALTHOUGH A DEFENDANT NEED NOT HIMSELF HAVE THE SKILL AND EXPERIENCE OF
A LAWYER IN ORDER COMPETENTLY AND INTELLIGENTLY TO CHOOSE SELF
REPRESENTATION, HE SHOULD BE MADE AWARE OF THE DANGERS AND
DISADVANTAGES OF SELF-REPRESENTATION, SO THAT THE RECORD WILL ESTABLISH
THAT "HE KNOWS WHAT HE IS DOING AND HIS CHOICE IS MADE WITH EYES
OPEN."  ADAMS V. UNITED STATES EX REL. MCCANN, 317 U.S., AT 279. 

HERE, WEEKS BEFORE TRIAL, FARETTA CLEARLY AND UNEQUIVOCALLY DECLARED
TO THE TRIAL JUDGE THAT HE WANTED TO REPRESENT HIMSELF AND DID NOT WANT
COUNSEL.  THE RECORD AFFIRMATIVELY SHOWS THAT FARETTA WAS LITERATE,
COMPETENT, AND UNDERSTANDING, AND THAT HE WAS VOLUNTARILY EXERCISING
HIS INFORMED FREE WILL.  THE TRIAL JUDGE HAD WARNED FARETTA THAT HE
THOUGHT IT WAS A MISTAKE NOT TO ACCEPT THE ASSISTANCE OF COUNSEL, AND
THAT FARETTA WOULD BE REQUIRED TO FOLLOW ALL THE "GROUND RULES" OF
TRAIL PROCEDURE.  /47/  WE NEED MAKE NO ASSESSMENT OF HOW WELL OR
POORLY FARETTA HAD MASTERED THE INTRICACIES OF THE HEARSAY RULE AND THE
CALIFORNIA CODE PROVISIONS THAT GOVERN CHALLENGES OF POTENTIAL JURORS
ON VOIR DIRE.  /48/ FOR HIS TECHNICAL LEGAL KNOWLEDGE, AS SUCH, WAS NOT
RELEVANT TO AN ASSESSMENT OF HIS KNOWING EXERCISE OF THE RIGHT TO
DEFEND HIMSELF.     IN FORCING FARETTA, UNDER THESE CIRCUMSTANCES, TO
ACCEPT AGAINST HIS WILL A STATE-APPOINTED PUBLIC DEFENDER, THE
CALIFORNIA COURTS DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO CONDUCT
HIS OWN DEFENSE.  ACCORDINGLY, THE JUDGMENT BEFORE US IS VACATED, AND
THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

                                  IT IS SO ORDERED. 

/1/ SEE POWELL V. ALABAMA, 287 U.S. 45; JOHNSON V. ZERBST, 304 U.S.
458; BETTS V. BRADY, 316 U.S. 455; GIDEON V. WAINWRIGHT, 372 U.S. 335;
ARGERSINGER V. HAMLIN, 407 U.S. 25.     /2/ THE JUDGE INFORMED
FARETTA: 

     "YOU ARE GOING TO FOLLOW THE PROCEDURE.  YOU ARE GOING TO HAVE

  TO ASK THE QUESTIONS RIGHT.  IF THERE IS AN OBJECTION TO THE FORM

  OF THE QUESTION AND IT IS PROPERLY TAKEN, IT IS GOING TO BE

  SUSTAINED.  WE ARE GOING TO TREAT YOU LIKE A GENTLEMAN.  WE ARE

  GOING TO RESPECT YOU.  WE ARE GOING TO GIVE YOU EVERY CHANCE, BUT

  YOU ARE GOING TO PLAY WITH THE SAME GROUND RULES THAT ANYBODY

  PLAYS.  AND YOU DON'T KNOW THOSE GROUND RULES.  YOU WOULDN'T KNOW

  THOSE GROUND RULES ANY MORE THAN ANY OTHER LAWYER WILL KNOW THOSE

  GROUND RULES UNTIL HE GETS OUT AND TRIES A LOT OF CASES.  AND YOU

 HAVEN'T DONE IT." 

/3/ THE COLLOQUY WAS AS FOLLOWS: 

     "THE COURT:  IN THE FARETTA MATTER, I BROUGHT YOU BACK DOWN

  HERE TO DO SOME RECONSIDERATION AS TO WHETHER OR NOT YOU SHOULD

  CONTINUE TO REPRESENT YOURSELF. 

"HOW HAVE YOU BEEN GETTING ALONG ON YOUR RESEARCH? 

     "THE DEFENDANT:  NOT BAD, YOUR HONOR. 

     "LAST NIGHT I PUT IN THE MAIL A 995 MOTION AND IT SHOULD BE

  WITH THE CLERK WITHIN THE NEXT DAY OR TWO. 

     "THE COURT:  HAVE YOU BEEN PREPARING YOURSELF FOR THE

  INTRICACIES OF THE TRIAL OF THE MATTER? 

     "THE DEFENDANT:  WELL, YOUR HONOR, I WAS HOPING THAT THE CASE

  COULD POSSIBLY BE DISPOSED OF ON THE 995. 

     "MRS. AYERS INFORMED ME YESTERDAY THAT IT WAS THE COURT'S

  POLICY TO HEAR THE PRETRIAL MOTIONS AT THE TIME OF TRIAL.  IF

  POSSIBLE, YOUR HONOR, I WOULD LIKE A DATE SET AS SOON AS THE

  COURT DEEMS ADEQUATE AFTER THEY RECEIVE THE MOTION, SOMETIME

  BEFORE TRIAL. 

  "THE COURT:  LET'S SEE HOW YOU HAVE BEEN DOING ON YOUR RESEARCH. 

     "HOW MANY EXCEPTIONS ARE THERE TO THE HERESAY RULE? 

     "THE DEFENDANT:  WELL, THE HEARSAY RULE WOULD, I GUESS, BE

  CALLED THE BEST EVIDENCE RULE, YOUR HONOR.  AND THERE ARE SEVERAL

  EXCEPTIONS IN CASE LAW, BUT IN ACTUAL STATUTORY LAW, I DON'T FEEL

  THERE IS NONE. 

 "THE COURT:  WHAT ARE THE CHALLENGES TO THE JURY FOR CAUSE? 

     "THE DEFENDANT:  WELL, THERE IS TWELVE PEREMPTORY 

     CHALLENGES. 

     "THE COURT:  AND HOW MANY FOR CAUSE? 

     "THE DEFENDANT:  WELL, AS MANY AS THE COURT DEEMS VALID. 

     "THE COURT:  AND WHAT ARE THEY?  WHAT ARE THE GROUNDS FOR
CHALLENGING A JUROR FOR CAUSE? 

     "THE DEFENDANT:  WELL, NUMEROUS GROUNDS TO CHALLENGE A

  WITNESS--I MEAN, A JUROR, YOUR HONOR, ONE BEING THE JUROR IS

PERHAPS SUFFERED, WAS A VICTIM OF THE SAME TYPE OF OFFENSE, MIGHT

  BE PREJUDICED TOWARD THE DEFENDANT.  ANY SUBSTANTIAL GROUND THAT

  MIGHT MAKE THE JUROR PREJUDICED) TOWARD THE DEFENDANT. 

     "THE COURT:  ANYTHING ELSE? 

     "THE DEFENDANT:  WELL, A RELATIVE PERHAPS OF THE VICTIM. 

 "THE COURT:  HAVE YOU TAKEN A LOOK AT THAT CODE SECTION TO SEE
WHAT IT IS? 

     "THE DEFENDANT:  CHALLENGE A JUROR? 

     "THE COURT:  YES. 

     "THE DEFENDANT:  YES, YOUR HONOR.  I HAVE DONE-- 

     "THE COURT:  WHAT IS THE CODE SECTION? 

     "THE DEFENDANT:  ON VOIR DIRING A JURY, YOUR HONOR? 

     "THE COURT:  YES. 

     "THE DEFENDANT:  I AM NOT AWARE OF THE SECTION RIGHT 

     OFFHAND. 

     "THE COURT:  WHAT CODE IS IT IN? 

     "THE DEFENDANT:  WELL, THE RESEARCH I HAVE DONE ON CHALLENGING

  WOULD BE IN WITKINS JURISPRUDENCE. 

     "THE COURT:  HAVE YOU LOOKED AT ANY OF THE CODES TO SEE WHERE

  THESE VARIOUS THINGS ARE TAKEN UP? 

     "THE DEFENDANT:  NO, YOUR HONOR, I HAVEN'T. 

     "THE COURT:  HAVE YOU LOOKED IN ANY OF THE CALIFORNIA CODES

  WITH REFERENCE TO TRIAL PROCEDURE? 

     "THE DEFENDANT:  YES, YOUR HONOR. 

     "THE COURT:  WHAT CODES? 

     "THE DEFENDANT:  I HAVE DONE EXTENSIVE RESEARCH IN THE PENAL

  CODE, YOUR HONOR, AND THE CIVIL CODE. 

     "THE COURT:  IF YOU HAVE DONE EXTENSIVE RESEARCH INTO IT, THEN
TELL ME ABOUT IT. 

     "THE DEFENDANT:  ON EMPANELING A JURY, YOUR HONOR? 

     "THE COURT: YES. 

     "THE DEFENDANT:  WELL, THE DISTRICT ATTORNEY AND THE
DEFENDANT,

  DEFENSE COUNSEL, HAS BOTH THE RIGHT TO 12 PEREMPTORY CHALLENGES

  OF A JURY.  THESE 12 CHALLENGES ARE UNDISPUTABLE.  ANY REASON

  THAT THE DEFENSE OR PROSECUTION SHOULD FEEL THAT A JUROR WOULD BE

  INADEQUATE TO TRY THE CASE OR TO RULE ON A CASE, THEY MAY THEN

  DISCHARGE THAT JUROR. 

     "BUT IF THERE IS A VALID CHALLENGE DUE TO GROUNDS OF PREJUDICE

  OR SOME OTHER GROUNDS, THAT THESE AREN'T CONSIDERED IN THE 12

  PEREMPTORY CHALLENGES.  THERE ARE NUMEROUS AND THE DEFENDANT, THE

  DEFENSE AND THE PROSECUTION BOTH HAVE THE RIGHT TO MAKE ANY

  INQUIRY TO THE JURY AS TO THEIR FEELINGS TOWARD THE CASE." 

/4/ THE JUDGE CONCLUDED:  "(TAKING INTO CONSIDERATION THE RECENT
CASE OF PEOPLE VERUS SHARP, WHERE THE DEFENDANT APPARENTLY DOES NOT
HAVE A CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF, THE COURT FINDS THAT
THE ENDS OF JUSTICE AND REQUIREMENTS OF DUE PROCESS REQUIRE THAT THE
PRIOR ORDER PERMITTING THE DEFENDANT TO REPRESENT HIMSELF IN PROPER
SHOULD BE AND IS HEREBY REVOKED.  THAT PRIVILEGE IS TERMINATED." 

/5/ FARETTA ALSO URGED WITHOUT SUCCESS THAT HE WAS ENTITLED TO
COUNSEL OF HIS CHOICE, AND THREE TIMES MOVED FOR THE APPOINTMENT OF A
LAWYER OTHER THAN THE PUBLIC DEFENDER.  THESE MOTIONS, TOO, WERE
DENIED. 

/6/ PEOPLE V. SHARP, 7 CAL.3D 448, 499 P.2D 489. 

WHEN SHARP WAS TRIED THE CALIFORNIA CONSTITUTION EXPRESSLY PROVIDED
THAT THE ACCUSED IN A CRIMINAL PROSECUTION HAD THE RIGHT "TO APPEAR AND
DEFEND, IN PERSON AND WITH COUNSEL."  CAL.CONST., ART. 1, 13.  IN AN
EARLIER DECISION THE CALIFORNIA SUPREME COURT HAD HELD THAT THIS
LANGUAGE MEANT THAT THE ACCUSED HAD THE RIGHT TO APPEAR BY HIMSELF OR
WITH COUNSEL.  PEOPLE V. MATTSON, 51 CAL.2D 777, 336 P. 2D 937.  THIS
VIEW WAS REJECTED IN SHARP, THE CALIFORNIA SUPREME COURT THERE HOLDING
THAT THE DEFENDANT IN A CRIMINAL PROSECUTION HAS NO RIGHT UNDER THE
STATE OR THE FEDERAL CONSTITUTION TO REPRESENT HIMSELF AT TRIAL.  SEE
GENERALLY Y. KAMISAR, W. LAFAVE & J. ISRAEL, MODERN CRIMINAL PROCEDURE
57 - 60 (4TH ED. 1974); NOTE, 10 CALIF. WESTERN L. REV. 196 (1973);
NOTE, 24 HASTINGS L. J. 431 (1973); COMMENT, 64 J. CRIM. L. 240
(1973). 

ALTHOUGH IMMATERIAL TO THE COURT'S DECISION, SHORTLY BEFORE SHARP
WAS DECIDED ON APPEAL THE CALIFORNIA CONSTITUTION HAD BEEN AMENDED TO
DELETE THE RIGHT OF SELF-REPRESENTATION FROM ART. 1, 13, AND TO EMPOWER
THE LEGISLATURE EXPRESSLY "TO REQUIRE THE DEFENDANT IN A FELONY CASE TO
HAVE THE ASSISTANCE OF COUNSEL."  THE NEW STATUTES ON THEIR FACE
REQUIRE COUNSEL ONLY IN CAPITAL CASES.  SEE CAL. PENAL CODE 686 (2),
686.1, 859, 987 (1970 AND SUPP. 1975).  IN OTHER THAN CAPITAL CASES THE
ACCUSED RETAINS BY STATUTORY TERMS A RIGHT "TO APPEAR AND DEFEND IN
PERSON AND WITH COUNSEL."  686 (2).  HOWEVER, THIS LANGUAGE TRACKS THE
OLD LANGUAGE OF ART. 1, 13, OF THE CALIFORNIA CONSTITUTION; AND IN
CONSTRUING THE CONSTITUTIONAL LANGUAGE IN SHARP TO EXCLUDE ANY RIGHT OF
SELF-REPRESENTATION UNDER FORMER ART. 1, 13, OF THE STATE CONSTITUTION,
THE CALIFORNIA SUPREME COURT ALSO STATED THAT 686 (2) DOES NOT PROVIDE
ANY RIGHT OF SELF-REPRESENTATION. 

/7/ THE COURT OF APPEAL ALSO HELD THAT THE TRIAL COURT HAD NOT
"ABUSED ITS DISCRETION IN CONCLUDING THAT FARETTA HAD NOT MADE A
KNOWING AND INTELLIGENT WAIVER OF HIS RIGHT TO BE REPRESENTED BY
COUNSEL," SINCE "FARETTA DID NOT APPEAR AWARE OF THE POSSIBLE
CONSEQUENCES OF WAIVING THE OPPORTUNITY FOR SKILLED AND EXPERIENCED
REPRESENTATION AT TRIAL." 

/8/ THE CALIFORNIA COURTS' CONCLUSION THAT FARETTA HAD NO
CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF WAS MADE IN THE CONTEXT OF
THE FOLLOWING NOT UNUSUAL RULES OF CALIFORNIA CRIMINAL PROCEDURE:  AN
INDIGENT CRIMINAL DEFENDANT HAS NO RIGHT TO APPOINTED COUNSEL OF HIS
CHOICE.  SEE DRUMGO V. SUPERIOR COURT, 8 CAL. 3D 930, 506 P. 2D 1007;
PEOPLE V. MILLER, 7 CAL. 3D 562, 574, 498 P. 2D 1089, 1097; PEOPLE V.
MASSIE, 66 CAL. 2D 899, 910, 428 P. 2D 869, 876 - 877; PEOPLE V.
TAYLOR, 259 CAL. APP. 2D 448, 450 - 451, 66 CAL. RPTR.  514, 515 -
517.  THE APPOINTED COUNSEL MANAGES THE LAWSUIT AND HAS THE FINAL SAY
IN ALL BUT A FEW MATTERS OF TRIAL STRATEGY.  SEE, E.G., PEOPLE V.
WILLIAMS, 2 CAL. 3D 894, 905, 471 P. 2D 1008, 1015; PEOPLE V. FOSTER,
67 CAL. 2D 604, 606 - 607, 432 P. 2D 976, 977 - 978; PEOPLE V. MONK, 56
CAL. 2D 288, 299, 363 P.2D 865, 870 - 871; SEE GENERALLY RHAY V.
BROWDER, 342 F. 2D 345, 349 (CA9).  A CALIFORNIA CONVICTION WILL NOT BE
REVERSED ON GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL EXCEPT IN THE
EXTREME CASE WHERE THE QUALITY OF REPRESENTATION WAS SO POOR AS TO
RENDER THE TRIAL A "FARCE OR A SHAM."  PEOPLE V. IBARRA, 60 CAL. 2D
460, 386 P. 2D 487; SEE PEOPLE V. MILLER, 7 CAL. 3D, AT 573, 498 P. 2D,
AT 1096 - 1097; PEOPLE V. FLOYD, 1 CAL. 3D 694, 709, 464 P. 2D 64, 73;
PEOPLE V. HILL, 70 CAL. 2D 678, 689, 452 P. 2D 329, 334; PEOPLE V.
REEVES, 64 CAL. 2D 766, 774, 415 P. 2D 35, 39. 

/9/ SEE, E. G., MACKRETH V. WILSON, 31 ALA. APP. 191, 15 SO. 2D 112;
CAPPETTA V. STATE, 204 SO. 2D 913 (FLA. DIST. CT. APP.); LOCKARD V.
STATE, 92 IDAHO 813, 451 P. 2D 1014; PEOPLE V. NELSON, 47 ILL. 2D 570,
268 N. E. 2D 2; BLANTON V. STATE, 229 IND. 701, 98 N. E. 2D 186;
WESTBERRY V. STATE, 254 A.2D 44 (ME.); ALLEN V. COMMONWEALTH, 324 MASS.
558, 87 N. E. 2D 192; PEOPLE V. HADDAD, 306 MICH. 556, 11 N. W. 2D 240;
STATE V. MCGHEE, 184 NEB. 352, 167 N. W. 2D 765; ZASADA V. STATE, 19 N.
J. SUPER.  589, 89 A. 2D 45; PEOPLE V. MCLAUGHLIN, 291 N. Y. 480, 53 N.
E. 2D 356; STATE V. PRITCHARD, 227 N. C. 168, 41 S. E. 2D 287; STATE V.
HOLLMAN, 232 S. C. 489, 102 S. E. 2D 873; STATE V. THOMLINSON, 78 S. D.
235, 100 N. W. 2D 121; STATE V. PENDERVILLE, 2 UTAH 2D 281, 272 P. 2D
195; STATE V. WOODALL, 5 WASH. APP. 901, 491 P. 2D 680.  SEE GENERALLY
ANNOT., 77 A. L. R. 2D 1233 (1961); 5 R. ANDERSON, WHARTON'S CRIMINAL
LAW AND PROCEDURE 2016 (1957). 

/10/ SOME STATES GRANT THE ACCUSED THE RIGHT TO BE HEARD, OR TO
DEFEND, IN PERSON AND BY COUNSEL:  ARIZ. CONST., ART. 2, 24; ARK.
CONST., ART. 2, 10; COLO. CONST., ART. 2, 16; CONN. CONST., ART. 1, 8;
DEL. CONST., ART. 1, 7; IDAHO CONST., ART. 1, 13; ILL. CONST., ART. 1,
8; IND. CONST., ART. 1, 13; KY. CONST. BILL OF RIGHTS, 11; MO. CONST.,
ART. 1, 18 (A); MONT. CONST., ART. 3, 16; NEV. CONST., ART. 1, 8; N. H.
CONST., PT. 1, ART. 15; N. M. CONST., ART. 2, 14; N. Y. CONST., ART. 1,
6; N. D. CONST., ART. 1, 13; OHIO CONST., ART. 1, 10; OKLA. CONST.,
ART. 2, 20; ORE.  CONST., ART. 1, 11; PA. CONST., ART. 1, 9; S. D.
CONST., ART. 6, 7; TENN. CONST., ART. 1, 9; UTAH CONST., ART. 1, 12;
VT. CONST., C. 1, ART. 10; WIS. CONST., ART. 1, 7; SEE LA. CONST., ART.
1, 9. 

OTHERS GRANT THE RIGHT TO DEFEND IN PERSON OR BY COUNSEL:  KAN.
CONST. BILL OF RIGHTS, 10; MASS. CONST., PT. 1, ART. 12; NEB. CONST.,
ART. 1, 11; WASH. CONST., ART. 1, 22. 

STILL OTHERS PROVIDE THE ACCUSED THE RIGHT TO DEFEND EITHER BY
HIMSELF, BY COUNSEL, OR BOTH:  ALA. CONST., ART. 1, 6; FLA. CONST.,
ART. 1, 16; ME. CONST., ART. 1, 6; MISS.  CONST., ART. 3, 26; S. C.
CONST., ART. 1, 14; TEX. CONST., ART. 1, 10. 

/11/ SEE, E. G., LOCKARD V. STATE, SUPRA; PEOPLE V. NELSON, SUPRA;
BLANTON V. STATE, SUPRA; ZASADA V. STATE, SUPRA; PEOPLE V. MCLAUGHLIN,
SUPRA; STATE V. MEMS, 281 N. C. 658, 190 S. E. 2D 164; STATE V. VERNA,
9 ORE.  APP.  620, 498 P. 2D 793. 

/12/ THE HOLDING OF ADAMS WAS REAFFIRMED IN A DIFFERENT CONTEXT IN
CARTER V. ILLINOIS, 329 U. S. 173, 174 - 175, WHERE THE COURT AGAIN
ADVERTED TO THE RIGHT OF SELF-REPRESENTATION:  "NEITHER THE HISTORIC
CONCEPTION OF DUE PROCESS NOR THE VITALITY IT DERIVES FROM PROGRESSIVE
STANDARDS OF JUSTICE DENIES A PERSON THE RIGHT TO DEFEND HIMSELF OR TO
CONFESS GUILT.  UNDER APPROPRIATE CIRCUMSTANCES THE CONSTITUTION
REQUIRES THAT COUNSEL BE TENDERED; IT DOES NOT REQUIRE THAT UNDER ALL
CIRCUMSTANCES COUNSEL BE FORCED UPON A DEFENDANT."  (EMPHASIS ADDED.) 
SEE ALSO MOORE V. MICHIGAN, 355 U. S. 155, 161. 

/13/ JACKSON, FULL FAITH AND CREDIT--THE LAWYER'S CLAUSE OF THE
CONSTITUTION, 45 COL. L. REV. 1, 26 (1945). 

/14/ GIDEON V. WAINWRIGHT, 372 U. S. 335, AND ARGERSINGER V. HAMLIN,
407 U. S. 25 (RIGHT TO COUNSEL); POINTER V. TEXAS, 380 U. S. 400 (RIGHT
OF CONFRONTATION); WASHINGTON V. TEXAS, 388 U. S. 14 (RIGHT TO
COMPULSORY PROCESS).  SEE ALSO IN RE OLIVER, 333 U. S. 257, 273. 

/15/ THIS COURT HAS OFTEN RECOGNIZED THE CONSTITUTIONAL STATURE OF
RIGHTS THAT, THOUGH NOT LITERALLY EXPRESSED IN THE DOCUMENT, ARE
ESSENTIAL TO DUE PROCESS OF LAW IN A FAIR ADVERSARY PROCESS.  IT IS NOW
ACCEPTED, FOR EXAMPLE, THAT AN ACCUSED HAS A RIGHT TO BE PRESENT AT ALL
STAGES OF THE TRIAL WHERE HIS ABSENCE MIGHT FRUSTRATE THE FAIRNESS OF
THE PROCEEDINGS, SNYDER V. MASSACHUSETTS, 291 U. S. 97; TO TESTIFY ON
HIS OWN BEHALF, SEE HARRIS V. NEW YORK, 401 U. S. 222, 225; BROOKS V.
TENNESSEE, 406 U. S. 605, 612; EF. FERGUSON V. GEORGIA, 365 U. S. 570;
AND TO BE CONVICTED ONLY IF HIS GUILT IS PROVED BEYOND A REASONABLE
DOUBT, IN RE WINSHIP, 397 U. S. 358; MULLANEY V. WILBUR, 421 U. S.
684. 

THE INFERENCE OF RIGHTS IS NOT, OF COURSE, A MECHANICAL EXERCISE. 
IN SINGER V. UNITED STATES, 380 U. S. 24, THE COURT HELD THAT AN
ACCUSED HAS NO RIGHT TO A BENCH TRIAL, DESPITE HIS CAPACITY TO WAIVE
HIS RIGHT TO A JURY TRIAL.  IN SO HOLDING, THE COURT STATED THAT "(THE
ABILITY TO WAIVE A CONSTITUTIONAL RIGHT DOES NOT ORDINARILY CARRY WITH
IT THE RIGHT TO INSIST UPON THE OPPOSITE OF THAT RIGHT."  ID., AT 34 -
35.  BUT THAT STATEMENT WAS MADE ONLY AFTER THE COURT HAD CONCLUDED
THAT THE CONSTITUTION DOES NOT AFFIRMATIVELY PROTECT ANY RIGHT TO BE
TRIED BY A JUDGE.  RECOGNIZING THAT AN IMPLIED RIGHT MUST ARISE
INDEPENDENTLY FROM THE DESIGN AND HISTORY OF THE CONSTITUTIONAL TEXT,
THE COURT SEARCHED FOR, BUT COULD NOT FIND, ANY "INDICATION THAT THE
COLONISTS CONSIDERED THE ABILITY TO WAIVE A JURY TRIAL TO BE OF EQUAL
IMPORTANCE TO THE RIGHT TO DEMAND ONE."  ID., AT 26.  INSTEAD, THE
COURT COULD LOCATE ONLY "ISOLATED INSTANCES" OF A RIGHT TO TRIAL BY
JUDGE, AND CONCLUDED THAT THESE WERE "CLEAR DEPARTURES FROM THE COMMON
LAW."  IBID.     WE FOLLOW THE APPROACH OF SINGER HERE.  OUR CONCERN IS
WITH AN INDEPENDENT RIGHT OF SELF-REPRESENTATION.  WE DO NOT SUGGEST
THAT THIS RIGHT ARISES MECHANICALLY FROM A DEFENDANT'S POWER TO WAIVE
THE RIGHT TO THE ASSISTANCE OF COUNSEL.  SEE SUPRA, AT 814 - 815.  ON
THE CONTRARY, THE RIGHT MUST BE INDEPENDENTLY FOUND IN THE STRUCTURE
AND HISTORY OF THE CONSTITUTIONAL TEXT. 

/16/ SUCH A RESULT WOULD SEVER THE CONCEPT OF COUNSEL FROM ITS
HISTORIC ROOTS.  THE FIRST LAWYERS WERE PERSONAL FRIENDS OF THE
LITIGANT, BROUGHT INTO COURT BY HIM SO THAT HE MIGHT "TAKE 'COUNSEL'
WITH THEM" BEFORE PLEADING.  1 F. POLLOCK & F. MAITLAND, THE HISTORY OF
ENGLISH LAW 211 (2D ED. 1909).  SIMILARLY, THE FIRST "ATTORNEYS" WERE
PERSONAL AGENTS, OFTEN LACKING ANY PROFESSIONAL TRAINING, WHO WERE
APPOINTED BY THOSE LITIGANTS WHO HAD SECURED ROYAL PERMISSION
PERSONALLY.  ID., AT 212 - 213. 

/17/ "THE COURT OF STAR CHAMBER WAS AN EFFICIENT, SOMEWHAT ARBITRARY
ARM OF ROYAL POWER.  IT WAS AT THE HEIGHT OF ITS CAREER IN THE DAYS OF
THE TUDOR AND STUART KINGS.  STAR CHAMBER STOOD FOR SWIFTNESS AND
POWER; IT WAS NOT A COMPETITOR OF THE COMMON LAW SO MUCH TO CARRY ON
THEIR AFFAIRS THROUGH A REPRESENTATIVE, RATHER THAN AS A LIMITATION ON
IT--A REMINDER THAT HIGH STATE POLICY COULD NOT SAFELY BE ENTRUSTED TO
A SYSTEM SO CHANCY AS ENGLISH LAW.  . . ."  L. FRIEDMAN, A HISTORY OF
AMERICAN LAW 23 (1973).  SEE GENERALLY 5 W. HOLDSWORTH, A HISTORY OF
ENGLISH LAW 155 - 214 (1927). 

/18/ "THE PROCEEDINGS BEFORE THE STAR CHAMBER BEGAN BY A BILL
ENGROSSED IN PARCHMENT AND FILED WITH THE CLERK OF THE COURT.'  IT
MUST, LIKE THE OTHER PLEADINGS, BE SIGNED BY COUNSEL . . . . HOWEVER,
COUNSEL WERE OBLIGED TO BE CAREFUL WHAT THEY SIGNED.  IF THEY PUT THEIR
HANDS TO MERELY FRIVOLUUS PLEAS, OR OTHERWISE MISBEHAVED THEMSELVES IN
THE CONDUCT OF THEIR CASES, THEY WERE LIABLE TO REBUKE, SUSPENSION, A
FINE, OR IMPRISONMENT."  HOLDSWORTH, SUPRA, N. 17, AT 178 - 179. 
COUNSEL, THEREFORE, HAD TO BE CAUTIOUS THAT ANY PLEADINGS THEY SIGNED
WOULD NOT UNDULY OFFEND THE CROWN.  SEE 1 J. STEPHEN, A HISTORY OF THE
CRIMINAL LAW OF ENGLAND 340 - 341 (1883). 

THIS PRESENTED NOT MERELY A HYPOTHETICAL RISK FOR THE ACCUSED. 
STEPHEN GIVES THE FOLLOWING ACCOUNT OF A CRIMINAL LIBEL TRIAL IN THE
STAR CHAMBER: 

"IN 1632 WILLIAM PRYNNE WAS INFORMED AGAINST FOR HIS BOOK CALLED
HISTRIO MASTIX.  PRYNNE'S ANSWER WAS, AMONGST OTHER THINGS, THAT HIS
BOOK HAD BEEN LICENSED, AND ONE OF THE COUNSEL, MR. HOLBOURN,
APOLOGISED, NOT WITHOUT GOOD CAUSE, FOR HIS STYLE.  . . . HIS TRIAL
WAS, LIKE THE OTHER STAR CHAMBER PROCEEDINGS, PERFECTLY DECENT AND
QUIET, BUT THE SENTENCE CAN BE DESCRIBED ONLY AS MONSTROUS.  HE WAS
SENTENCED TO BE DISBARRED AND DEPRIVED OF HIS UNIVERSITY DEGREES; TO
STAND TWICE IN THE PILLORY, AND TO HAVE ONE EAR CUT OFF EACH TIME; TO
BE FINED 5,000; AND TO BE PERPETUALLY IMPRISONED, WITHOUT BOOKS, PEN,
INK, OR PAPER.  . . . 

"FIVE YEARS AFTER THIS, IN 1637, PRYNNE, BASTWICK, AND BURTON, WERE
TRIED FOR LIBEL, AND WERE ALL SENTENCED TO THE SAME PUNISHMENT AS
PRYNNE HAD RECEIVED IN 1632, PRYNNE BEING BRANDED ON THE CHEEKS INSTEAD
OF LOSING HIS EARS. 

"THE PROCEDURE IN THIS CASE APPEARS TO ME TO HAVE BEEN AS HARSH AS
THE SENTENCE WAS SEVERE, THOUGH I DO NOT THINK IT HAS BEEN SO MUCH
NOTICED.  . . . STAR CHAMBER DEFENDANTS WERE NOT ONLY ALLOWED COUNSEL,
BUT WERE REQUIRED TO GET THEIR ANSWERS SIGNED BY COUNSEL.  THE EFFECT
OF THIS RULE, AND PROBABLY ITS OBJECT WAS, THAT NO DEFENCE COULD BE PUT
BEFORE THE COURT WHICH COUNSEL WOULD NOT TAKE THE RESPONSIBILITY OF
SIGNING--A RESPONSIBILITY WHICH, AT THAT TIME, WAS EXTREMELY SERIOUS. 
IF COUNSEL WOULD NOT SIGN THE DEFENDANT'S ANSWER HE WAS TAKEN TO HAVE
CONFESSED THE INFORMATION.  PRYNNE'S ANSWER WAS OF SUCH A CHARACTER
THAT ONE OF THE COUNSEL ASSIGNED TO HIM REFUSED TO SIGN IT AT ALL, AND
THE OTHER DID NOT SIGN IT TILL AFTER THE PROPER TIME.  BASTWICK COULD
GET NO ONE TO SIGN HIS ANSWER BURTON'S ANSWER WAS SIGNED BY COUNSEL,
BUT WAS SET ASIDE AS IMPERTINENT.  UPON THE WHOLE, THE CASE WAS TAKEN
TO BE ADMITTED BY ALL THE THREE, AND JUDGMENT WAS PASSED ON THEM
ACCORDINGLY.  . . ."  STEPHEN, SUPRA, AT 340 - 341. 

THAT PRYNNE'S DEFENSE WAS FORECLOSED BY THE REFUSAL OF ASSIGNED
COUNSEL TO ENDORSE HIS ANSWER IS ALL THE MORE SHOCKING WHEN IT IS
REALIZED THAT PRYNNE WAS HIMSELF A LAWYER.  I. BRANT, THE BILL OF
RIGHTS 106 (1965).  ON THE OPERATION OF THE STAR CHAMBER GENERALLY, SEE
BARNES, STAR CHAMBER MYTHOLOGY, 5 AM. J. LEGAL HIST. 1 - 11 (1961), AND
BARNES, DUE PROCESS AND SLOW PROCESS IN THE LATE ELIZABETHAN-EARLY
STUART STAR CHAMBER, 6 AM. J. LEGAL HIST. 221 - 249, 315 - 346 (1962). 

/19/ POLLOCK & MAITLAND, SUPRA, N. 16, AT 211. 

/20/ IBID.  SEE ALSO STEPHEN, SUPRA, N. 18, AT 341. 

/21/ STEPHEN, SUPRA, N. 18, AT 326. 

THE TRIAL WOULD BEGIN WITH ACCUSATIONS BY COUNSEL FOR THE CROWN. 
THE PRISONER USUALLY ASKED, AND WAS GRANTED, THE PRIVILEGE OF ANSWERING
SEPARATELY EACH MATTER ALLEGED AGAINST HIM:  "(THE TRIAL BECAME A
SERIES OF EXCITED ALTERCATIONS BETWEEN THE PRISONER AND THE DIFFERENT
COUNSEL OPPOSED TO HIM.  EVERY STATEMENT OF COUNSEL OPERATED AS A
QUESTION TO THE PRISONER, . . . THE PRISONER EITHER ADMITTING OR
DENYING OR EXPLAINING WHAT WAS ALLEGED AGAINST HIM.  THE RESULT WAS
THAT . . . THE EXAMINATION OF THE PRISONER . . . WAS THE VERY ESSENCE
OF THE TRIAL, AND HIS ANSWERS REGULATED THE PRODUCTION OF THE EVIDENCE
. . . . AS THE ARGUMENT PROCEEDED THE COUNSEL (FOR THE CROWN) WOULD
FREQUENTLY ALLEGE MATTERS WHICH THE PRISONER DENIED AND CALLED UPON
THEM TO PROVE.  THE PROOF WAS USUALLY GIVEN BY READING DEPOSITIONS,
CONFESSIONS OF ACCOMPLICES, LETTERS, AND THE LIKE . . . . WHEN THE
MATTER HAD BEEN FULLY INQUIRED INTO . . . THE PRESIDING JUDGE
'REPEATED' OR SUMMED UP TO THE JURY THE MATTERS ALLEGED AGAINST THE
PRISONER, AND THE ANSWERS GIVEN BY HIM; AND THE JURY GAVE THEIR
VERDICT."  ID., AT 325 - 326. 

/22/ HOLDSWORTH, SUPRA, N. 17, AT 195 - 196. 

/23/ 7 WILL.  3, C. 3, 1.  THE RIGHT TO CALL WITNESSES UNDER OATH
WAS EXTENDED TO FELONY CASES BY STATUTE IN 1701.  1 ANNE, STAT. 2, C.
9, 3. 

/24/ THE STATUTE PROVIDED, IN PERTINENT PART, THAT THE ACCUSED
"SHALL BE RECEIVED AND ADMITTED TO MAKE HIS AND THEIR FULL DEFENCE, BY
COUNSEL LEARNED IN THE LAW, AND TO MAKE ANY PROOF THAT HE OR THEY CAN
PRODUCE BY LAWFUL WITNESS OR WITNESSES, WHO SHALL THEN BE UPON OATH,
FOR HIS AND THEIR JUST DEFENCE IN THAT BEHALF; AND IN CASE ANY PERSON
OR PERSONS SO ACCUSED OR INDICTED SHALL DESIRE COUNSEL, THE COURT
BEFORE WHOM SUCH PERSON OR PERSONS SHALL BE TRIED, OR SOME JUDGE OF
THAT COURT, SHALL AND IS HEREBY AUTHORIZED AND REQUIRED IMMEDIATELY,
UPON HIS OR THEIR REQUEST, TO ASSIGN TO SUCH PERSON AND PERSONS SUCH
AND SO MANY COUNSEL, NOT EXCEEDING TWO, AS THE PERSON OR PERSONS SHALL
DESIRE, TO WHOM SUCH COUNSEL SHALL HAVE FREE ACCESS AT ALL SEASONABLE
HOURS; ANY LAW OR USAGE TO THE CONTRARY NOTWITHSTANDING." 

/25/ HOLDSWORTH, SUPRA, N. 17, AT 195. 

/26/ IN MARY BLANDY'S 1752 MURDER TRIAL, FOR EXAMPLE, THE COURT
DECLARED THAT COUNSEL FOR THE DEFENDANT COULD NOT ONLY SPEAK ON POINTS
OF LAW RAISED BY THE DEFENSE, BUT COULD ALSO EXAMINE DEFENSE WITNESSES
AND CROSS-EXAMINE THOSE OF THE CROWN.  18 HOW.  ST. TR. 1117.  LATER IN
THAT CENTURY JUDGES OFTEN ALLOWED COUNSEL FOR THE ACCUSED "TO INSTRUCT
HIM WHAT QUESTIONS TO ASK, OR EVEN TO ASK QUESTIONS FOR HIM, WITH
RESPECT TO MATTERS OF FACT . . . (OR) LAW."  4 W. BLACKSTONE,
COMMENTARIES *355 - 356. 

/27/ 6 & 7 WILL.  4, C. 114, 1.  THE STATUTE PROVIDED IN PERTINENT
PART THAT THE ACCUSED "SHALL BE ADMITTED, AFTER THE CLOSE OF THE CASE
FOR THE PROSECUTION, TO MAKE FULL ANSWER AND DEFENCE THERETO BY COUNSEL
LEARNED IN THE LAW, OR BY ATTORNEY IN COURTS WHERE ATTORNIES PRACTISE
AS COUNSEL." 

/28/ SEE, E. G., POOR PRISONERS' DEFENCE ACT, 1903, 3 EDW.  7, C.
38, 1; POOR PRISONERS' DEFENSE ACT, 1930, 20 & 21 GEO. 5, C. 32; LEGAL
AID AND ADVICE ACT, 1949, 12 & 13 GEO. 6, C. 51. 

/29/ COUNSEL HAD BEEN APPOINTED FOR THE DEFENDANT WOODWARD BUT
WITHDREW SHORTLY BEFORE TRIAL.  WHEN THE TRIAL COURT APPOINTED A
SUBSTITUTE COUNSEL, THE DEFENDANT OBJECTED:  "I WOULD RATHER NOT HAVE
LEGAL AID.  I WOULD RATHER CONDUCT THE CASE MYSELF."  THE TRIAL COURT
INSISTED, HOWEVER, THAT THE DEFENDANT PROCEED TO TRIAL WITH COUNSEL,
AND A CONVICTION RESULTED.  ON APPEAL, THE CROWN DID NOT EVEN ATTEMPT
TO DENY A BASIC RIGHT OF SELF-REPRESENTATION, BUT ARGUED ONLY THAT THE
RIGHT HAD BEEN WAIVED WHEN THE ACCUSED ACCEPTED THE FIRST COUNSEL.  THE
COURT OF APPEAL REJECTED THIS ARGUMENT:  "THE PRISONER RIGHT AT THE
BEGINNING (OF THE TRIAL) SAID THAT HE WISHED TO DEFEND HIMSELF . . .
AND HE WAS REFUSED WHAT WE THINK WAS HIS RIGHT TO MAKE HIS OWN CASE TO
THE JURY INSTEAD OF HAVING IT MADE FOR HIM BY COUNSEL."  THIS, THE
COURT HELD, WAS AN "INJUSTICE TO THE PRISONER," AND "ALTHOUGH THERE WAS
A GOOD DEAL OF EVIDENCE AGAINST THE PRISONER," THE COURT QUASHED THE
CONVICTION. 

/30/ C. WARREN, A HISTORY OF THE AMERICAN BAR 7 (1911). 

/31/ D. BOORSTIN, THE AMERICANS; THE COLONIAL EXPERIENCE 197 

(1958). 

/32/ FOR EXAMPLE, THE MASSACHUSETTS BODY OF LIBERTIES (1641) IN ART.
26 PROVIDED: 

"EVERY MAN THAT FINDETH HIMSELF UNFIT TO PLEAD HIS OWNE CAUSE IN ANY
COURT SHALL HAVE LIBERTIE TO IMPLOY ANY MAN AGAINST WHOM THE COURT DOTH
NOT EXCEPT, TO HELPE HIM, PROVIDED HE GIVE HIM NOE FEE OR REWARD FOR
HIS PAINES.  . . ." 

PLEADING FOR HIRE WAS ALSO PROHIBITED IN 17TH CENTURY VIRGINIA,
CONNECTICUT, AND THE CAROLINAS.  FRIEDMAN, SUPRA, N. 17, AT 81. 

/33/ ID., AT 82. 

/34/ WARREN, SUPRA, N. 30, AT 212. 

/35/ FOR EXAMPLE, ZEPHANIAH SWIFT, IN ONE OF THE FIRST AMERICAN
COLONIAL TREATISES ON LAW, MADE CLEAR THAT A RIGHT TO COUNSEL WAS
RECOGNIZED IN CONNECTICUT.  HE WROTE:  "WE HAVE NEVER ADMITTED THAT
CRUEL AND ILLIBERAL PRINCIPLE OF THE COMMON LAW OF ENGLAND, THAT WHEN A
MAN IS ON TRIAL FOR HIS LIFE, HE SHALL BE REFUSED COUNSEL, AND DENIED
THOSE MEANS OF DEFENCE, WHICH ARE ALLOWED, WHEN THE MOST TRIFLING
PITTANCE OF PROPERTY IS IN QUESTION.  THE FLIMSY PRETENCE, THAT THE
COURT ARE TO BE COUNSEL FOR THE PRISONER WILL ONLY HEIGHTEN OUR
INDIGNATION AT THE PRACTICE:  FOR IT IS APPARENT TO THE LEAST
CONSIDERATION, THAT A COURT CAN NEVER FURNISH A PERSON ACCUSED OF A
CRIME WITH THE ADVICE, AND ASSISTANCE NECESSARY TO MAKE HIS DEFENCE.  .
. . 

"OUR ANCESTORS, WHEN THEY FIRST ENACTED THEIR LAWS RESPECTING
CRIMES, INFLUENCED BY THE ILLIBERAL PRINCIPLES WHICH THEY HAD IMBIBED
IN THEIR NATIVE COUNTRY, DENIED COUNSEL TO PRISONERS TO PLEAD FOR THEM
TO ANY THING BUT POINTS OF LAW.  IT IS MANIFEST THAT THERE IS AS MUCH
NECCESSITY FOR COUNSEL TO INVESTIGATE MATTERS OF FACT, AS POINTS OF
LAW, IF TRUTH IS TO BE DISCOVERED."  2 Z. SWIFT, A SYSTEM OF THE LAWS
OF THE STATE OF CONNECTICUT 398 - 399 (1796). 

SIMILARLY, COLONIAL VIRGINIA AT FIRST BASED ITS COURT PROCEEDINGS ON
ENGLISH JUDICIAL CUSTOMS, BUT "(BY THE MIDDLE OF THE EIGHTEENTH CENTURY
THE DEFENDANT WAS PERMITTED ADVICE OF COUNSEL IF HE COULD AFFORD SUCH
SERVICES."  H. RANKIN, CRIMINAL TRIAL PROCEEDINGS IN THE GENERAL COURT
OF COLONIAL VIRGINIA 67, 89 (1965). 

/36/ SEE, E. G., RANKIN, SUPRA, N. 35, AT 89 - 90. 

/37/ SEE, E. G., THE MASSACHUSETTS BODY OF LIBERTIES, ART. 26
(1641), SUPRA, N. 32. 

SIMILARLY, THE CONCESSIONS AND AGREEMENTS OF WEST NEW JERSEY, IN
1677, PROVIDED, FOR ALL CASES, CIVIL AND CRIMINAL, "THAT NO PERSON OR
PERSONS SHALL BE COMPELLED TO FEE ANY ATTORNEY OR COUNCILLOR TO TO
PLEAD HIS CAUSE, BUT THAT ALL PERSONS HAVE FREE LIBERTY TO PLEAD HIS
OWN CAUSE, IF HE PLEASE." 

THE PENNSYLVANIA FRAME OF GOVERNMENT OF 1682, PERHAPS "THE MOST
INFLUENTIAL OF THE COLONIAL DOCUMENTS PROTECTING INDIVIDUAL RIGHTS," 1
B. SCHWARTZ, THE BILL OF RIGHTS:  A DOCUMENTARY HISTORY 130 (1971)
(HEREINAFTER SCHWARTZ), PROVIDED: 

"THAT, IN ALL COURTS ALL PERSONS OF ALL PERSUASIONS MAY FREELY
APPEAR IN THEIR OWN WAY, AND ACCORDING TO THEIR OWN MANNER, AND THERE
PERSONALLY PLEAD THEIR OWN CAUSE THEMSELVES; OR, IF UNABLE, BY THEIR
FRIENDS . . . ."  THAT PROVISION WAS NO DOUBT INSPIRED BY WILLIAM
PENN'S BELIEF THAT AN ACCUSED SHOULD GO FREE IF HE COULD PERSONALLY
PERSUADE A JURY THAT IT WOULD BE UNJUST TO CONVICT HIM.  IN ENGLAND, 12
YEARS EARLIER, PENN, AFTER PREACHING A SERMON IN THE STREET, HAD BEEN
INDICTED AND TRIED FOR DISTURBING THE PEACE.  PENN CONCEDED THAT HE WAS
"UNACQUAINTED WITH THE FORMALITY OF THE LAW," BUT REQUESTED THAT HE BE
GIVEN A FAIR HEARING AND THE "LIBERTY OF MAKING MY DEFENCE."  THE
REQUEST WAS GRANTED, PENN REPRESENTED HIMSELF, AND ALTHOUGH THE JUDGES
JAILED HIM FOR CONTEMPT, THE JURY ACQUITTED HIM OF THE CHARGE.  "THE
PEOPLE'S ANCIENT AND JUST LIBERTIES ASSERTED, IN THE TRIAL OF WILLIAM
PENN AND WILLIAM MEAD, 1670," REPRODUCED IN 1 SCHWARTZ 144, 147.  SEE
THE TRIAL OF WILLIAM PENN, 6 HOW.  ST. TR. 951 (1670), CITED IN
ILLINOIS V. ALLEN, 397 U. S. 337, 353 (DOUGLAS, J., CONCURRING). 

/38/ ARTICLE IX OF THE PENNSYLVANIA DECLARATION OF RIGHTS IN 1776
GUARANTEED "(THAT IN ALL PROSECUTIONS FOR CRIMINAL OFFENCES, A MAN HATH
A RIGHT TO BE HEARD BY HIMSELF AND HIS COUNCIL . . . ."  THE VERMONT
DECLARATION OF RIGHTS (ART. X) IN 1777 PROTECTED THE RIGHT OF SELF
REPRESENTATION WITH VIRTUALLY IDENTICAL LANGUAGE.  THE GEORGIA
CONSTITUTION (ART. LVIII) IN 1777 DECLARED THAT ITS PROVISIONS BARRING
THE UNAUTHORIZED PRACTICE OF LAW WERE "NOT INTENDED TO EXCLUDE ANY
PERSON FROM THAT INHERENT PRIVILEGE OF EVERY FREEMAN, THE LIBERTY TO
PLEAD HIS OWN CAUSE."  IN 1780 THE MASSACHUSETTS DECLARATION OF RIGHTS,
ART. XII, PROVIDED THAT THE ACCUSED HAD A RIGHT TO BE HEARD "BY
HIMSELF, OR HIS COUNSEL AT HIS ELECTION."  THE NEW HAMPSHIRE BILL OF
RIGHTS (ART. XV) IN 1783 AFFIRMED THE RIGHT OF THE ACCUSED "TO BE FULLY
HEARD IN HIS DEFENCE BY HIMSELF, AND COUNSEL."  IN 1792 THE DELAWARE
CONSTITUTION (ART. I, 7) PRESERVED THE RIGHT IN LANGUAGE MODELED AFTER
ART. IX OF THE PENNSYLVANIA DECLARATION OF RIGHTS.  SIMILARLY, IN 1798
GEORGIA INCLUDED IN ITS CONSTITUTION (ART. III, 8) A PROVISION THAT
PROTECTED THE RIGHT OF THE ACCUSED TO DEFEND "BY HIMSELF OR COUNSEL, OR
BOTH."  OTHER STATE CONSTITUTIONS DID NOT EXPRESS IN LITERAL TERMS A
RIGHT OF SELF-REPRESENTATION, BUT THOSE DOCUMENTS GRANTED ALL DEFENSE
RIGHTS TO THE ACCUSED PERSONALLY AND PHRASED THE RIGHT OF COUNSEL IN
SUCH FASHION AS TO IMPLY THE EXISTENCE OF THE ANTECEDENT LIBERTY.  SEE
DEL. DECLARATION OF RIGHTS, 14 (1776) (RIGHT "TO BE ALLOWED COUNSEL");
MD. DECLARATION OF RIGHTS, ART. XIX (1776) (RIGHT "TO BE ALLOWED
COUNSEL"); N. J. CONST., ART. XVI (1776) (CRIMINALS TO HAVE "SAME
PRIVILEGES OF . . . COUNSEL, AS THEIR PROSECUTORS"); N. Y. CONST., ART.
XXXIV (1777) ("SHALL BE ALLOWED COUNSEL"). 

/39/ THE FOUNDERS BELIEVED THAT SELF-REPRESENTATION WAS A BASIC
RIGHT OF A FREE PEOPLE.  UNDERLYING THIS BELIEF WAS NOT ONLY THE ANTI
LAWYER SENTIMENT OF THE POPULACE, BUT ALSO THE "NATURAL LAW"  THINKING
THAT CHARACTERIZED THE REVOLUTION'S SPOKESMEN.  SEE P. KAUPER, THE
HIGHER LAW AND THE RIGHTS OF MAN IN A REVOLUTIONARY SOCIETY, A LECTURE
IN THE AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH SERIES
ON THE AMERICAN REVOLUTION, NOV. 7, 1973, EXTRACTED IN 18 U. OF MICH.
LAW SCHOOL LAW QUADRANGLE NOTES, NO. 2, P. 9 (1974).  FOR EXAMPLE,
THOMAS PAINE, ARGUING IN SUPPORT OF THE 1776 PENNSYLVANIA DECLARATION
OF RIGHTS, SAID:  "EITHER PARTY . . . HAS A NATURAL RIGHT TO PLEAD HIS
OWN CAUSE; THIS RIGHT IS CONSISTENT WITH SAFETY, THEREFORE IT IS
RETAINED; BUT THE PARTIES MAY NOT BE ABLE, . . . THEREFORE THE CIVIL
RIGHT OF PLEADING BY PROXY, THAT IS, BY A COUNCIL, IS AN APPENDAGE TO
THE NATURAL RIGHT (OF SELF-REPRESENTATION) . . . ."  THOMAS PAINE ON A
BILL OF RIGHTS, 1777, REPRINTED IN 1 SCHWARTZ 316. 

/40/ STATUTES PROVIDING FOR APPOINTMENT OF COUNSEL ON REQUEST OF THE
ACCUSED WERE ENACTED BY DELAWARE IN 1719, 1 LAWS OF THE STATE OF
DELAWARE, 1700 - 1797, P. 66 (ADAMS 1797); BY PENNSYLVANIA IN 1718, 3
STATS. AT LARGE OF PENNSYLVANIA 199 (BUSCH 1896); AND BY SOUTH CAROLINA
IN 1731, LAWS OF THE PROVINCE OF SOUTH CAROLINA 518 - 519 (TROTT
1736).  APPOINTMENT WAS ALSO THE PRACTICE IN CONNECTICUT IN THE LATTER
PART OF THE 18TH CENTURY; APPOINTMENT APPARENTLY WAS SOMETIMES MADE
EVEN WHEN THE ACCUSED FAILED TO REQUEST COUNSEL, IF HE APPEARED IN NEED
OF A LAWYER, BUT THERE IS NO INDICATION APPOINTMENT WAS EVER MADE OVER
THE OBJECTION OF THE ACCUSED.  SEE SWIFT, SUPRA, N. 35, AT 392.  FREE
CHOICE APPOINTMENT REMAINED THE RULE AS THE NEW REPUBLIC EMERGED.  SEE
THE 1791 STATUTE OF NEW HAMPSHIRE, LAWS OF NEW HAMPSHIRE 247 (MELCHER
1792), AND THE 1795 STATUTE OF NEW JERSEY, 2, ACTS OF THE NINETEENTH
GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY 1012. 

/41/ SEE COUNSEL PROVISIONS IN N. 38, SUPRA. 

/42/ IN RATIFYING THE CONSTITUTION, THREE STATES URGED THAT A RIGHT
TO-COUNSEL PROVISION BE ADDED BY WAY OF AMENDMENT.  VIRGINIA AND NORTH
CAROLINA PROPOSED VIRTUALLY IDENTICAL PACKAGES OF A DEFENDANT'S RIGHTS,
EACH INCLUDING THE PROVISION THAT AN ACCUSED BE "ALLOWED"  COUNSEL.  2
SCHWARTZ 841, 967.  THE PACKAGE PROPOSED BY NEW YORK PROVIDED THAT THE
ACCUSED "OUGHT TO . . . HAVE . . . THE ASSISTANCE OF COUNCIL FOR HIS
DEFENSE."  ID., AT 913.  THE IDEA OF PROPOSING AMENDMENTS UPON
RATIFICATION HAD BEGUN WITH THE PENNSYLVANIA DISSENTERS FROM
RATIFICATION, WHOSE PROPOSED PACKAGE OF A DEFENDANT'S RIGHTS PROVIDED
FOR THE ACCUSED'S "RIGHT . . . TO BE HEARD BY HIMSELF AND HIS
COUNSEL."  ID., AT 664 - 665.  IT CAN BE SEEN THAT MADISON'S PRECISE
FORMULATION--"THE RIGHT . . . TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENCE"--VARIED IN PHRASING FROM EACH OF THE PROPOSALS.  "THE
AVAILABLE DEBATES ON THE VARIOUS PROPOSALS THROW NO LIGHT ON THE
SIGNIFICANCE OR THE INTERPRETATION WHICH CONGRESS ATTRIBUTED TO THE
RIGHT TO COUNSEL."  W. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS
23 (1955). 

/43/ AS STATED BY MR. JUSTICE SUTHERLAND IN POWELL V. ALABAMA, 287
U. S. 45:  "EVEN THE INTELLIGENT AND EDUCATED LAYMAN HAS SMALL AND
SOMETIMES NO SKILL IN THE SCIENCE OF LAW.  IF CHARGED WITH CRIME, HE IS
INCAPABLE, GENERALLY, OF DETERMINING FOR HIMSELF WHETHER THE INDICTMENT
IS GOOD OR BAD.  HE IS UNFAMILIAR WITH THE RULES OF EVIDENCE.  LEFT
WITHOUT THE AID OF COUNSEL HE MAY BE PUT ON TRIAL WITHOUT A PROPER
CHARGE, AND CONVICTED UPON INCOMPETENT EVIDENCE, OR EVIDENCE IRRELEVANT
TO THE ISSUE OR OTHERWISE INADMISSIBLE.  HE LACKS BOTH THE SKILL AND
KNOWLEDGE ADEQUATELY TO PREPARE HIS DEFENSE, EVEN THOUGH HE HAVE A
PERFECT ONE.  HE REQUIRES THE GUIDING HAND OF COUNSEL AT EVERY STEP IN
THE PROCEEDINGS AGAINST HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE
FACES THE DANGER OF CONVICTION BECAUSE HE DOES NOT KNOW HOW TO
ESTABLISH HIS INNOCENCE.  IF THAT BE TRUE OF MEN OF INTELLIGENCE, HOW
MUCH MORE TRUE IS IT OF THE IGNORANT AND ILLITERATE, OR THOSE OF FEEBLE
INTELLECT.  IF IN ANY CASE, CIVIL OR CRIMINAL, A STATE OR FEDERAL COURT
WERE ARBITRARILY TO REFUSE TO HEAR A PARTY BY COUNSEL, EMPLOYED BY AND
APPEARING FOR HIM, IT REASONABLY MAY NOT BE DOUBTED THAT SUCH A REFUSAL
WOULD BE A DENIAL OF A HEARING, AND, THEREFORE, OF DUE PROCESS IN THE
CONSTITUTIONAL SENSE."  ID., AT 69. 

/44/ SEE N. 38, SUPRA, FOR COLONIAL APPOINTMENT STATUTES THAT
PREDATE THE SIXTH AMENDMENT.  FEDERAL LAW PROVIDED FOR APPOINTMENT OF
COUNSEL IN CAPITAL CASES AT THE REQUEST OF THE ACCUSED AS EARLY AS
1790, 1 STAT. 118. 

/45/ SEE, E. G., U. S. CONST., AMDT. 1.  FREEDOM OF CHOICE IS NOT A
STRANGER TO THE CONSTITUTIONAL DESIGN OF PROCEDURAL PROTECTIONS FOR A
DEFENDANT IN A CRIMINAL PROCEEDING.  FOR EXAMPLE, "(EVERY CRIMINAL
DEFENDANT IS PRIVILEGED TO TESTIFY IN HIS OWN DEFENSE, OR TO REFUSE TO
DO SO."  HARRIS V. NEW YORK, 401 U. S. 222, 225.  SEE BROOKS V.
TENNESSEE, 406 U. S. 605, 612; FERGUSON V. GEORGIA, 365 U. S. 570.  CF.
BROWN V. UNITED STATES, 356 U. S. 148. 

/46/ WE ARE TOLD THAT MANY CRIMINAL DEFENDANTS REPRESENTING
THEMSELVES MAY USE THE COURTROOM FOR DELIBERATE DISRUPTION OF THEIR
TRIALS.  BUT THE RIGHT OF SELF-REPRESENTATION HAS BEEN RECOGNIZED FROM
OUR BEGINNINGS BY FEDERAL LAW AND BY MOST OF THE STATES, AND NO SUCH
RESULT HAS THEREBY OCCURRED.  MOREOVER, THE TRIAL JUDGE MAY TERMINATE
SELF-REPRESENTATION BY A DEFENDANT WHO DELIBERATELY ENGAGES IN SERIOUS
AND OBSTRUCTIONIST MISCONDUCT.  SEE ILLINOIS V. ALLEN, 397 U. S. 337. 
OF COURSE, A STATE MAY--EVEN OVER OBJECTION BY THE ACCUSED--APPOINT A
"STANDBY COUNSEL" TO AID THE ACCUSED IF AND WHEN THE ACCUSED REQUESTS
HELP, AND TO BE AVAILABLE TO REPRESENT THE ACCUSED IN THE EVENT THAT
TERMINATION OF THE DEFENDANT'S SELF-REPRESENTATION IS NECESSARY.  SEE
UNITED STATES V. DOUGHERTY, 154 U. S. APP. D. C. 76, 87 - 89, 473 F. 2D
1113, 1124 - 1126. 

THE RIGHT OF SELF-REPRESENTATION IS NOT A LICENSE TO ABUSE THE
DIGNITY OF THE COURTROOM.  NEITHER IS IT A LICENSE NOT TO COMPLY WITH
RELEVANT RULES OF PROCEDURAL AND SUBSTANTIVE LAW.  THUS, WHATEVER ELSE
MAY OR MAY NOT BE OPEN TO HIM ON APPEAL, A DEFENDANT WHO ELECTS TO
REPRESENT HIMSELF CANNOT THEREAFTER COMPLAIN THAT THE QUALITY OF HIS
OWN DEFENSE AMOUNTED TO A DENIAL OF "EFFECTIVE ASSISTANCE OF COUNSEL." 

/47/ SEE N. 2, SUPRA. 

/48/ SEE N. 3, SUPRA. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN AND MR.
JUSTICE REHNQUIST JOIN, DISSENTING. 

THIS CASE, LIKE HERRING V. NEW YORK, POST, P. 853, ANNOUNCED TODAY,
IS ANOTHER EXAMPLE OF THE JUDICIAL TENDENCY TO CONSTITUTIONALIZE WHAT
IS THOUGHT "GOOD."  THAT EFFORT FAILS ON ITS OWN TERMS HERE, BECAUSE
THERE IS NOTHING DESIRABLE OR USEFUL IN PERMITTING EVERY ACCUSED
PERSON, EVEN THE MOST UNEDUCATED AND INEXPERIENCED, TO INSIST UPON
CONDUCTING HIS OWN DEFENSE TO CRIMINAL CHARGES.  /1/ MOREOVER, THERE IS
NO CONSTITUTIONAL BASIS FOR THE COURT'S HOLDING, AND IT CAN ONLY ADD TO
THE PROBLEMS OF AN ALREADY MALFUNCTIONING CRIMINAL JUSTICE SYSTEM.  I
THEREFORE DISSENT. 

   I 

THE MOST STRIKING FEATURE OF THE COURT'S OPINION IS THAT IT DEVOTES
SO LITTLE DISCUSSION TO THE MATTER WHICH IT CONCEDES IS THE CORE OF THE
DECISION, THAT IS, DISCERNING AN INDEPENDENT BASIS IN THE CONSTITUTION
FOR THE SUPPOSED RIGHT TO REPRESENT ONESELF IN A CRIMINAL TRIAL.  /2/
SEE ANTE, AT 818 - 821, AND N. 15.  ITS ULTIMATE ASSERTION THAT SUCH A
RIGHT IS TUCKED BETWEEN THE LINES OF THE SIXTH AMENDMENT IS
CONTRADICTED BY THE AMENDMENT'S LANGUAGE AND ITS CONSISTENT JUDICIAL
INTERPRETATION. 

AS THE COURT SEEMS TO RECOGNIZE, ANTE, AT 820, THE CONCLUSION THAT
THE RIGHTS GUARANTEED BY THE SIXTH AMENDMENT ARE "PERSONAL" TO AN
ACCUSED REFLECTS NOTHING MORE THAN THE OBVIOUS FACT THAT IT IS HE WHO
IS ON TRIAL AND THEREFORE HAS NEED OF A DEFENSE.  /3/ BUT NEITHER THAT
NEARLY TRIVIAL PROPOSITION NOR THE LANGUAGE OF THE AMENDMENT, WHICH
SPEAKS IN UNIFORMLY MANDATORY TERMS, LEADS TO THE FURTHER CONCLUSION
THAT THE RIGHT TO COUNSEL IS MERELY SUPPLEMENTARY AND MAY BE DISPENSED
WITH A THE WHIM OF THE ACCUSED.  RATHER, THIS COURT'S DECISIONS HAVE
CONSISTENTLY INCLUDED THE RIGHT TO COUNSEL AS AN INTEGRAL PART OF THE
BUNDLE MAKING UP THE LARGER "RIGHT TO A DEFENSE AS WE KNOW IT."  FOR
EXAMPLE, IN IN RE OLIVER, 333 U.S. 257 (1948), THE COURT REVERSED A
SUMMARY CONTEMPT CONVICTION AT THE HANDS OF A "ONE-MAN GRAND JURY," AND
HAD THIS TO SAY: 

"WE . . . HOLD THAT FAILURE TO AFFORD THE PETITIONER A REASONABLE
OPPORTUNITY TO DEFEND HIMSELF AGAINST THE CHARGE OF FALSE AND EVASIVE
SWEARING WAS A DENIAL OF DUE PROCESS OF LAW.  A PERSON'S RIGHT TO
REASONABLE NOTICE OF A CHARGE AGAINST HIM, AND AN OPPORTUNITY TO BE
HEARD IN HIS DEFENSE--A RIGHT TO HIS DAY IN COURT--ARE BASIC IN OUR
SYSTEM OF JURISPRUDENCE; AND THESE RIGHTS INCLUDE, AS A MINIMUM, A
RIGHT TO EXAMINE THE WITNESSES AGAINST HIM, TO OFFER TESTIMONY, AND TO
BE REPRESENTED BY COUNSEL."  ID., AT 273.  SEE ALSO ARGERSINGER V.
HAMLIN, 407 U.S. 25, 27 - 33 (1972); GIDEON V. WAINWRIGHT, 372 U.S.
335, 344 (1963). 

THE REASON FOR THIS HARDLY REQUIRES EXPLANATION.  THE FACT OF THE
MATTER IS THAT IN ALL BUT AN EXTRAORDINARILY SMALL NUMBER OF CASES AN
ACCUSED WILL LOSE WHATEVER DEFENSE HE MAY HAVE IF HE UNDERTAKES TO
CONDUCT THE TRIAL HIMSELF.  THE COURT'S OPINION IN POWELL V. ALABAMA,
287 U.S. 45 (1932), PUTS THE POINT ELOQUENTLY: 

"EVEN THE INTELLIGENT AND EDUCATED LAYMAN HAS SMALL AND SOMETIMES NO
SKILL IN THE SCIENCE OF LAW.  IF CHARGED WITH CRIME, HE IS INCAPABLE,
GENERALLY, OF DETERMINING FOR HIMSELF WHETHER THE INDICTMENT IS GOOD OR
BAD.  HE IS UNFAMILIAR WITH THE RULES OF EVIDENCE.  LEFT WITHOUT THE
AID OF COUNSEL HE MAY BE PUT ON TRIAL WITHOUT A PROPER CHARGE, AND
CONVICTED UPON INCOMPETENT EVIDENCE, OR EVIDENCE IRRELEVANT TO THE
ISSUE OR OTHERWISE INADMISSIBLE.  HE LACKS BOTH THE SKILL AND KNOWLEDGE
ADEQUATELY TO PREPARE HIS DEFENSE, EVEN THOUGH HE HAVE A PERFECT ONE. 
HE REQUIRES THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE
PROCEEDINGS AGAINST HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE FACES
THE DANGER OF CONVICTION BECAUSE HE DOES NOT KNOW HOW TO ESTABLISH HIS
INNOCENCE.  IF THAT BE TRUE OF MEN OF INTELLIGENCE, HOW MUCH MORE TRUE
IS IT OF THE IGNORANT AND ILLITERATE, OR THOSE OF FEEBLE INTELLECT." 
ID., AT 69. 

OBVIOUSLY, THESE CONSIDERATIONS DO NOT VARY DEPENDING UPON WHETHER
THE ACCUSED ACTIVELY DESIRES TO BE REPRESENTED BY COUNSEL OR WISHES TO
PROCEED PRO SE.  NOR IS IT ACCURATE TO SUGGEST, AS THE COURT SEEMS TO
LATER IN ITS OPINION, THAT THE QUALITY OF HIS REPRESENTATION AT TRIAL
IS A MATTER WITH WHICH ONLY THE ACCUSED IS LEGITIMATELY CONCERNED.  SEE
ANTE, AT 834.  ALTHOUGH WE HAVE ADOPTED AN ADVERSARY SYSTEM OF CRIMINAL
JUSTICE, SEE GIDEON V. WAINWRIGHT, SUPRA, THE PROSECUTION IS MORE THAN
AN ORDINARY LITIGANT, AND THE TRIAL JUDGE IS NOT SIMPLY AN AUTOMATON
WHO INSURES THAT TECHNICAL RULES ARE ADHERED TO.  BOTH ARE CHARGED WITH
THE DUTY OF INSURING THAT JUSTICE, IN THE BROADEST SENSE OF THAT TERM,
IS ACHIEVED IN EVERY CRIMINAL TRIAL.  SEE BRADY V. MARYLAND, 373 U.S.
83, 87, AND N. 2 (1963); BERGER V. UNITED STATES, 295 U.S. 78, 88
(1935).  THAT GOAL IS ILL-SERVED, AND THE INTEGRITY OF AND PUBLIC
CONFIDENCE IN THE SYSTEM ARE UNDERMINED, WHEN AN EASY CONVICTION IS
OBTAINED DUE TO THE DEFENDANT'S ILL-ADVISED DECISION TO WAIVE COUNSEL. 
THE DAMAGE THUS INFLICTED IS NOT MITIGATED BY THE LAME EXPLANATION THAT
THE DEFENDANT SIMPLY AVAILED HIMSELF OF THE "FREEDOM" "TO GO TO JAIL
UNDER HIS OWN BANNER . . . ."  UNITED STATES EX REL. MALDONADO V.
DENNO, 348 F.2D 12, 15 (CA2 1965).  THE SYSTEM OF CRIMINAL JUSTICE
SHOULD NOT BE AVAILABLE AS AN INSTRUMENT OF SELF-DESTRUCTION. 

IN SHORT, BOTH THE "SPIRIT AND THE LOGIC" OF THE SIXTH AMENDMENT ARE
THAT EVERY PERSON ACCUSED OF CRIME SHALL RECEIVE THE FULLEST POSSIBLE
DEFENSE; IN THE VAST MAJORITY OF CASES THIS COMMAND CAN BE HONORED ONLY
BY MEANS OF THE EXPRESSLY GUARANTEED RIGHT TO COUNSEL, AND THE TRIAL
JUDGE IS IN THE BEST POSITION TO DETERMINE WHETHER THE ACCUSED IS
CAPABLE OF CONDUCTING HIS DEFENSE.  TRUE FREEDOM OF CHOICE AND
SOCIETY'S INTEREST IN SEEING THAT JUSTICE IS ACHIEVED CAN BE VINDICATED
ONLY IF THE TRIAL COURT RETAINS DISCRETION TO REJECT ANY ATTEMPTED
WAIVER OF COUNSEL AND INSIST THAT THE ACCUSED BY TRIED ACCORDING TO THE
CONSTITUTION.  THIS DISCRETION IS AS CRITICAL AN ELEMENT OF BASIC
FAIRNESS AS A TRIAL JUDGE'S DISCRETION TO DECLINE TO ACCEPT A PLEA OF
GUILTY.  SEE SANTOBELLO V. NEW YORK, 404 U.S. 257, 262 (1971). 
II 

THE COURT'S ATTEMPT TO SUPPORT ITS RESULT BY COLLECTING DICTA FROM
PRIOR DECISIONS IS NO MORE PERSUASIVE THAN ITS ANALYSIS OF THE SIXTH
AMENDMENT.  CONSIDERED IN CONTEXT, THE CASES UPON WHICH THE COURT
RELIES TO "BEAT ITS PATH" EITHER LEAD IT NOWHERE OR POINT IN PRECISELY
THE OPPOSITE DIRECTION. 

IN ADAMS V. UNITED STATES EX REL. MCCANN, 317 U.S. 269 (1942), AND
CARTER V. ILLINOIS, 329 U.S. 173 (1946), THE DEFENDANTS HAD COMPETENTLY
WAIVED COUNSEL BUT LATER SOUGHT TO RENOUNCE ACTIONS TAKEN BY THEM WHILE
PROCEEDING PRO SE.  IN BOTH CASES THIS COURT UPHELD THE CONVICTION,
HOLDING THAT NEITHER AN UNCOUNSELED WAIVER OF JURY TRIAL NOR AN
UNCOUNSELED GUILTY PLEA IS INHERENTLY DEFECTIVE UNDER THE
CONSTITUTION.  THE LANGUAGE WHICH THE COURT SO CAREFULLY EXCISES FROM
THOSE OPINIONS RELATES, NOT TO AN AFFIRMATIVE RIGHT OF SELF
REPRESENTATION, BUT TO THE CONSEQUENCES OF WAIVER.  /4/  IN ADAMS, FOR
EXAMPLE, MR. JUSTICE FRANKFURTER WAS CAREFUL TO POINT OUT THAT HIS
REFERENCE TO A DEFENDANT'S "CORRELATIVE RIGHT TO DISPENSE WITH A
LAWYER'S HELP" MEANT ONLY THAT "(HE MAY WAIVE HIS CONSTITUTIONAL RIGHT
TO ASSISTANCE OF COUNSEL . . . ."  317 U.S., AT 279.  SEE UNITED STATES
V. WARNER, 428 F.2D 730, 733 (CA8 1970).  BUT, AS THE COURT RECOGNIZES,
THE POWER TO WAIVE A CONSTITUTIONAL RIGHT DOES NOT CARRY WITH IT THE
RIGHT TO INSIST UPON ITS OPPOSITE.  SINGER V. UNITED STATES, 380 U.S.
24, 34 - 35 (1965). 

SIMILARLY, IN CARTER THE COURT'S OPINION OBSERVED THAT THE
CONSTITUTION "DOES NOT REQUIRE THAT UNDER ALL CIRCUMSTANCES COUNSEL BE
FORCED UPON A DEFENDANT," CITING ADAMS.  329 U.S., AT 174 - 175
(EMPHASIS ADDED).  I, FOR ONE, FIND THIS STATEMENT IMPOSSIBLE TO SQUARE
WITH THE COURT'S PRESENT HOLDING THAT AN ACCUSED IS ABSOLUTELY ENTITLED
TO DISPENSE WITH A LAWYER'S HELP UNDER ALL CONDITIONS.  THUS, ALTHOUGH
ADAMS AND CARTER SUPPORT THE COURT'S CONCLUSION THAT A DEFENDANT WHO
REPRESENTS HIMSELF MAY NOT THEREAFTER DISAFFIRM HIS DELIBERATE TRIAL
DECISIONS, SEE ANTE, AT 834 - 835, N. 46, THEY PROVIDE IT NO COMFORT
REGARDING THE PRIMARY ISSUE IN THIS CASE.  /5/ 

FAR MORE NEARLY IN POINT IS PRICE V. JOHNSTON, 334 U.S. 266 (1948),
WHERE THIS COURT HELD THAT, ALTHOUGH THE COURTS OF APPEALS POSSESS THE
POWER TO COMMAND THAT A PRISONER BE PRODUCED TO ARGUE HIS OWN APPEAL,
THE EXERCISE OF THAT POWER IS A MATTER OF SOUND JUDICIAL DISCRETION. 
AN EXAMINATION OF THE WHOLE OF THE COURT'S REASONING ON THIS POINT IS
INSTRUCTIVE: 

     "THE DISCRETIONARY NATURE OF THE POWER IN QUESTION GROWS OUT
OF

  THE FACT THAT A PRISONER HAS NO ABSOLUTE RIGHT TO ARGUE HIS OWN

  APPEAL OR EVEN TO BE PRESENT AT THE PROCEEDINGS IN AN APPELLATE

  COURT.  THE ABSENCE OF THAT RIGHT IS IN SHARP CONTRAST TO HIS

  CONSTITUTIONAL PREROGATIVE OF BEING PRESENT IN PERSON AT EACH

  SIGNIFICANT STAGE OF A FELONY PROSECUTION, AND TO HIS RECOGNIZED

PRIVILEGE OF CONDUCTING HIS OWN DEFENSE AT THE TRIAL.  LAWFUL

  INCARCERATION BRINGS ABOUT THE NECESSARY WITHDRAWAL OR LIMITATION

  OF MANY PRIVILEGES AND RIGHTS, A RETRACTION JUSTIFIED BY THE

  CONSIDERATIONS UNDERLYING OUR PENAL SYSTEM.  AMONG THOSE SO

  LIMITED IS THE OTHERWISE UNQUALIFIED RIGHT GIVEN BY 272 OF THE

  JUDICIAL CODE, 28 U.S.C. 394 (NOW 1654), TO PARTIES IN ALL THE

  COURTS OF THE UNITED STATES TO 'PLEAD AND MANAGE THEIR OWN CAUSES

  PERSONALLY.'"  ID., AT 285 - 286 (CITATIONS OMITTED). 

IT BARELY REQUIRES EMPHASIS THAT THIS PASSAGE CONTRASTS THE
"CONSTITUTIONAL PREROGATIVE" TO BE PRESENT AT TRIAL WITH THE
"RECOGNIZED PRIVILEGE" OF SELF-REPRESENTATION, AND STRONGLY IMPLIES
THAT THE LATTER ARISES ONLY FROM THE FEDERAL STATUTE.  IT IS DIFFICULT
TO IMAGINE A POSITION LESS CONSISTENT WITH PRICE V. JOHNSTON THAN THAT
TAKEN BY THE COURT TODAY. 

THE COURT OF APPEALS CASES RELIED UPON BY THE COURT ARE LIKEWISE
DUBIOUS AUTHORITY FOR ITS VIEWS.  ONLY ONE OF THOSE CASES, UNITED
STATES V. PLATTNER, 330 F.2D 271 (CA2 1964), EVEN ATTEMPTED A REASONED
ANALYSIS OF THE ISSUE, AND THE DECISION IN THAT CASE WAS LARGELY BASED
UPON THE MISREADING OF ADAMS AND PRICE WHICH THE COURT PERPERUATES IN
ITS OPINION TODAY.  SEE ID., AT 275.  IN EVERY OTHER CASE CITED ANTE,
AT 817, THE COURTS OF APPEALS ASSUMED THAT THE RIGHT OF SELF
REPRESENTATION WAS CONSTITUTIONALLY BASED BUT FOUND THAT THE RIGHT HAD
NOT BEEN VIOLATED AND AFFIRMED THE CONVICTION UNDER REVIEW.  IT IS
HIGHLY QUESTIONABLE WHETHER SUCH HOLDINGS WOULD EVEN ESTABLISH THE LAW
OF THE CIRCUITS FROM WHICH THEY CAME. 

IN SHORT, WHAT THE COURT REPRESENTS AS A WELL-TRAVELED ROAD IS IN
REALITY A CONSTITUTIONAL TRAIL WHICH IT IS BLAZING FOR THE FIRST TIME
TODAY, ONE THAT HAS NOT EVEN BEEN HINTED AT IN OUR PREVIOUS DECISIONS. 
FAR FROM AN INTERPRETATION OF THE SIXTH AMENDMENT, IT IS A PERVERSION
OF THE PROVISION TO WHICH WE GAVE FULL MEANING IN GIDEON V. WAINWRIGHT
AND ARGERSINGER V. HAMLIN. 

      III 

LIKE MR. JUSTICE BLACKMUN, I HESITATE TO PARTICIPATE IN THE COURT'S
ATTEMPT TO USE HISTORY TO TAKE IT WHERE LEGAL ANALYSIS CANNOT.  PIECING
TOGETHER SHREDS OF ENGLISH LEGAL HISTORY AND EARLY STATE CONSTITUTIONAL
AND STATUTORY PROVISIONS, WITHOUT A FULL ELABORATION OF THE CONTEXT IN
WHICH THEY OCCURRED OR ANY EVIDENCE THAT THEY WERE RELIED UPON BY THE
DRAFTERS OF OUR FEDERAL CONSTITUTION, CREATES MORE QUESTIONS THAN IT
ANSWERS AND HARDLY PROVIDES THE FIRM FOUNDATION UPON WHICH THE CREATION
OF NEW CONSTITUTIONAL RIGHTS SHOULD REST.  WE ARE WELL REMINDED THAT
THIS COURT ONCE EMPLOYED AN EXHAUSTIVE ANALYSIS OF ENGLISH AND COLONIAL
PRACTICES REGARDING THE RIGHT TO COUNSEL TO JUSTIFY THE CONCLUSION THAT
IT WAS FUNDAMENTAL TO A FAIR TRIAL AND, LESS THAN 10 YEARS LATER, USED
ESSENTIALLY THE SAME MATERIAL TO CONCLUDE THAT IT WAS NOT.  COMPARE
POWELL V. ALABAMA, 287 U.S., AT 60 - 65, WITH BETTS V. BRADY, 316 U.S.
455, 465 - 471 (1942). 

AS IF TO ILLUSTRATE THIS POINT, THE SINGLE HISTORICAL FACT CITED BY
THE COURT WHICH WOULD APPEAR TRULY RELEVANT TO ASCERTAINING THE MEANING
OF THE SIXTH AMENDMENT PROVES TOO MUCH.  AS THE COURT POINTS OUT, ANTE,
AT 831, 35 OF THE JUDICIARY ACT OF 1789 PROVIDED A STATUTORY RIGHT TO
SELF-REPRESENTATION IN FEDERAL CRIMINAL TRIALS.  THE TEXT OF THE SIXTH
AMENDMENT, WHICH EXPRESSLY PROVIDES ONLY FOR A RIGHT TO COUNSEL, WAS
PROPOSED THE DAY AFTER THE JUDICIARY ACT WAS SIGNED.  IT CAN HARDLY BE
SUGGESTED THAT THE MEMBERS OF THE CONGRESS OF 1789, THEN FEW IN NUMBER,
WERE UNFAMILIAR WITH THE AMENDMENT'S CAREFULLY STRUCTURED LANGUAGE,
WHICH HAD BEEN UNDER DISCUSSION SINCE THE 1787 CONSTITUTIONAL
CONVENTION.  AND IT WOULD BE MOST REMARKABLE TO SUGGEST, HAD THE RIGHT
TO CONDUCT ONE'S OWN DEFENSE BEEN CONSIDERED SO CRITICAL AS TO REQUIRE
CONSTITUTIONAL PROTECTION, THAT IT WOULD HAVE BEEN LEFT TO
IMPLICATION.  RATHER, UNDER TRADITIONAL CANONS OF CONSTRUCTION,
INCLUSION OF THE RIGHT IN THE JUDICIARY ACT AND ITS OMISSION FROM THE
CONSTITUTIONAL AMENDMENT DRAFTED AT THE SAME TIME BY MANY OF THE SAME
MEN, SUPPORTS THE CONCLUSION THAT THE OMISSION WAS INTENTIONAL. 

THERE IS NO WAY TO RECONCILE THE IDEA THAT THE SIXTH AMENDMENT
IMPLIEDLY GUARANTEED THE RIGHT OF AN ACCUSED TO CONDUCT HIS OWN DEFENSE
WITH THE CONTEMPORANEOUS ACTION OF THE CONGRESS IN PASSING A STATUTE
EXPLICITLY GIVING THAT RIGHT.  IF THE SIXTH AMENDMENT CREATED A RIGHT
TO SELF-REPRESENTATION IT WAS UNNECESSARY FOR CONGRESS TO ENACT ANY
STATUTE ON THE SUBJECT AT ALL.  IN THIS CASE, THEREFORE, HISTORY OUGHT
TO LEAD JUDGES TO CONCLUDE THAT THE CONSTITUTION LEAVES TO THE JUDGMENT
OF LEGISLATURES, AND THE FLEXIBLE PROCESS OF STATUTORY AMENDMENT, THE
QUESTION WHETHER CRIMINAL DEFENDANTS SHOULD BE PERMITTED TO CONDUCT
THEIR TRIALS PRO SE.  SEE BETTS V. BRADY, SUPRA.  AND THE FACT THAT WE
HAVE NOT HINTED AT A CONTRARY VIEW FOR 185 YEARS IS SURELY ENTITLED TO
SOME WEIGHT IN THE SCALES.  /6/ CF. JACKMAN V. ROSENBAUM CO., 260 U.S.
22, 31 (1922). 

        IV 

SOCIETY HAS THE RIGHT TO EXPECT THAT, WHEN COURTS FIND NEW RIGHTS
IMPLIED IN THE CONSTITUTION, THEIR POTENTIAL EFFECT UPON THE RESOURCES
OF OUR CRIMINAL JUSTICE SYSTEM WILL BE CONSIDERED.  HOWEVER, SUCH
CONSIDERATIONS ARE CONSPICUOUSLY ABSENT FROM THE COURT'S OPINION IN
THIS CASE. 

IT HARDLY NEEDS REPEATING THAT COURTS AT ALL LEVELS ARE ALREADY
HANDICAPPED BY THE UNSUPPLIED DEMAND FOR COMPETENT ADVOCATES, WITH THE
RESULT THAT IT OFTEN TAKES FAR LONGER TO COMPLETE A GIVEN CASE THAN
EXPERIENCED COUNSEL WOULD REQUIRE.  IF WE WERE TO ASSUME THAT THERE
WILL BE WIDESPREAD EXERCISE OF THE NEWLY DISCOVERED CONSTITUTIONAL
RIGHT TO SELF-REPRESENTATION, IT WOULD ALMOST CERTAINLY FOLLOW THAT
THERE WILL BE ADDED CONGESTION IN THE COURTS AND THAT THE QUALITY OF
JUSTICE WILL SUFFER.  MOREOVER, THE COURT BLANDLY ASSUMES THAT ONCE AN
ACCUSED HAS ELECTED TO DEFEND HIMSELF HE WILL BE BOUND BY HIS CHOICE
AND NOT BE HEARD TO COMPLAIN OF IT LATER.  ANTE, AT 834 - 835, N. 46. 
THIS ASSUMPTION IGNORES THE ROLE OF APPELLATE REVIEW, FOR THE REPORTED
CASES ARE REPLETE WITH INSTANCES OF A CONVICTED DEFENDANT BEING
RELIEVED OF A DELIBERATE DECISION EVEN WHEN MADE WITH THE ADVICE OF
COUNSEL.  SEE SILBER V. UNITED STATES, 370 U.S. 717 (1962).  IT IS
TOTALLY UNREALISTIC, THEREFORE, TO SUGGEST THAT AN ACCUSED WILL ALWAYS
BE HELD TO THE CONSEQUENCES OF A DECISION TO CONDUCT HIS OWN DEFENSE. 
UNLESS, AS MAY BE THE CASE, MOST PERSONS ACCUSED OF CRIME HAVE MORE WIT
THAN TO INSIST UPON THE DUBIOUS BENEFIT THAT THE COURT CONFERS TODAY,
WE CAN EXPECT THAT MANY EXPENSIVE AND GOOD-FAITH PROSECUTIONS WILL BE
NULLIFIED ON APPEAL FOR REASONS THAT TRIAL COURTS ARE NOW DEPRIVED OF
THE POWER TO PREVENT.  /7/ 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

TODAY THE COURT HOLDS THAT THE SIXTH AMENDMENT GUARANTEES TO EVERY
DEFENDANT IN A STATE CRIMINAL TRIAL THE RIGHT TO PROCEED WITHOUT
COUNSEL WHENEVER HE ELECTS TO DO SO.  I FIND NO TEXTUAL SUPPORT FOR
THIS CONCLUSION IN THE LANGUAGE OF THE SIXTH AMENDMENT.  I FIND THE
HISTORICAL EVIDENCE RELIED UPON BY THE COURT TO BE UNPERSUASIVE,
ESPECIALLY IN LIGHT OF THE RECENT HISTORY OF CRIMINAL PROCEDURE. 
FINALLY, I FEAR THAT THE RIGHT TO SELF-REPRESENTATION
CONSTITUTIONALIZED TODAY FREQUENTLY WILL CAUSE PROCEDURAL CONFUSION
WITHOUT ADVANCING ANY SIGNIFICANT STRATEGIC INTEREST OF THE DEFENDANT. 
I THEREFORE DISSENT. 

        I 

THE STARTING POINT, OF COURSE, IS THE LANGUAGE OF THE SIXTH
AMENDMENT: 

     "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE

  RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE

  STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED,

  WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, AND

  TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION;

TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM TO HAVE

COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE
THE ASSISTANCE OF COUNSEL

  FOR HIS DEFENCE." 

IT IS SELF-EVIDENT THAT THE AMENDMENT MAKES NO DIRECT REFERENCE TO
SELF-REPRESENTATION.  INDEED, THE COURT CONCEDES THAT THE RIGHT TO SELF
REPRESENTATION IS "NOT STATED IN THE AMENDMENT IN SO MANY WORDS." 
ANTE, AT 819. 

IT COULD BE ARGUED THAT THE RIGHT TO ASSISTANCE OF COUNSEL
NECESSARILY CARRIES WITH IT THE RIGHT TO WAIVE ASSISTANCE OF COUNSEL. 
THE COURT RECOGNIZES, HOWEVER, ANTE, AT 819 - 820, N. 15, THAT IT HAS
SQUARELY REJECTED ANY MECHANICAL INTERPRETATION OF THE BILL OF RIGHTS. 
MR. CHIEF JUSTICE WARREN, SPEAKING FOR A UNANIMOUS COURT IN SINGER V.
UNITED STATES, 380 U.S. 24, 34 - 35 (1965), STATED:  "THE ABILITY TO
WAIVE A CONSTITUTIONAL RIGHT DOES NOT ORDINARILY CARRY WITH IT THE
RIGHT TO INSIST UPON THE OPPOSITE OF THAT RIGHT." 

WHERE THEN IN THE SIXTH AMENDMENT DOES ONE FIND THIS RIGHT TO SELF
REPRESENTATION?  ACCORDING TO THE COURT, IT IS "NECESSARILY IMPLIED BY
THE STRUCTURE OF THE AMENDMENT."  ANTE, AT 819.  THE COURT'S CHAIN OF
INFERENCES IS DELICATE AND DESERVES SCRUTINY.  THE COURT STARTS WITH
THE PROPOSITION THAT THE SIXTH AMENDMENT IS "A COMPACT STATEMENT OF THE
RIGHTS NECESSARY TO A FULL DEFENSE."  ANTE, AT 818.  FROM THIS
PROPOSITION THE COURT CONCLUDES THAT THE SIXTH AMENDMENT
"CONSTITUTIONALIZES THE RIGHT IN AN ADVERSARY CRIMINAL TRIAL TO MAKE A
DEFENSE AS WE KNOW IT."  IBID.  UP TO THIS POINT, AT LEAST AS A GENERAL
PROPOSITION, THE COURT'S REASONING IS UNEXCEPTIONABLE.  THE COURT,
HOWEVER, THEN CONCLUDES THAT BECAUSE THE SPECIFIC RIGHTS IN THE SIXTH
AMENDMENT ARE PERSONAL TO THE ACCUSED, THE ACCUSED MUST HAVE A RIGHT TO
EXERCISE THOSE RIGHTS PERSONALLY.  STATED SOMEWHAT MORE SUCCINCTLY, THE
COURT REASONS THAT BECAUSE THE ACCUSED HAS A PERSONAL RIGHT TO "A
DEFENSE AS WE KNOW IT," HE NECESSARILY HAS A RIGHT TO MAKE THAT DEFENSE
PERSONALLY.  I DISAGREE.  ALTHOUGH I BELIEVE THE SPECIFIC GUARANTEES OF
THE SIXTH AMENDMENT ARE PERSONAL TO THE ACCUSED, I DO NOT AGREE THAT
THE SIXTH AMENDMENT GUARANTEES ANY PARTICULAR PROCEDURAL METHOD OF
ASSERTING THOSE RIGHTS.  IF AN ACCUSED WAS ENJOYED A SPEEDY TRIAL BY AN
IMPARTIAL JURY IN WHICH HE WAS INFORMED OF THE NATURE OF THE
ACCUSATION, CONFRONTED WITH THE WITNESSES AGAINST HIM, AFFORDED THE
POWER OF COMPULSORY PROCESS, AND REPRESENTED EFFECTIVELY BY COMPETENT
COUNSEL, I DO NOT SEE THAT THE SIXTH AMENDMENT REQUIRES MORE. 

THE COURT SUGGESTS THAT THRUSTING COUNSEL UPON THE ACCUSED AGAINST
HIS CONSIDERED WISH VIOLATES THE LOGIC OF THE SIXTH AMENDMENT BECAUSE
COUNSEL IS TO BE AN ASSISTANT, NOT A MASTER.  THE COURT SEEKS TO
SUPPORT ITS CONCLUSION BY HISTORICAL ANALOGY TO THE NOTORIOUS
PROCEDURES OF THE STAR CHAMBER.  THE POTENTIAL FOR EXAGGERATED ANALOGY,
HOWEVER, IS MARKEDLY DIMINISHED WHEN ONE RECALLS THAT PETITIONER IS
SEEKING AN ABSOLUTE RIGHT TO SELF-REPRESENTATION.  THIS IS NOT A CASE
WHERE DEFENSE COUNSEL, AGAINST THE WISHES OF THE DEFENDANT OR WITH
INADEQUATE CONSULTATION, HAS ADOPTED A TRIAL STRATEGY THAT
SIGNIFICANTLY AFFECTS ONE OF THE ACCUSED'S CONSTITUTIONAL RIGHTS.  FOR
SUCH OVERBEARING CONDUCT BY COUNSEL, THERE IS A REMEDY.  BROOKHART V.
JANIS, 384 U.S. 1 (1966); FAY V. NOIA, 372 U.S. 391, 439 (1963).  NOR
IS THIS A CASE WHERE DISTRUST, ANIMOSITY, OR OTHER PERSONAL DIFFERENCES
BETWEEN THE ACCUSED AND HIS WOULD-BE COUNSEL HAVE RENDERED EFFECTIVE
REPRESENTATION UNLIKELY OR IMPOSSIBLE.  SEE BROWN V. CRAVEN, 424 F.2D
1166, 1169 - 1170 (CA9 1970).  SEE ALSO ANDERS V. CALIFORNIA, 386 U.S.
738 (1967).  NOR IS THIS EVEN A CASE WHERE A DEFENDANT HAS BEEN FORCED,
AGAINST HIS WISHES TO EXPEND HIS PERSONAL RESOURCES TO PAY FOR COUNSEL
FOR HIS DEFENSE.  SEE GENERALLY FULLER V. OREGON, 417 U.S. 40 (1974);
JAMES V. STRANGE, 407 U.S. 128 (1972).  INSTEAD, THE COURT HOLDS THAT
ANY DEFENDANT IN ANY CRIMINAL PROCEEDING MAY INSIST ON REPRESENTING
HIMSELF REGARDLESS OF HOW COMPLEX THE TRIAL IS LIKELY TO BE AND
REGARDLESS OF HOW FRIVOLOUS THE DEFENDANT'S MOTIVATIONS MAY BE.  I
CANNOT AGREE THAT THERE IS ANYTHING IN THE DUE PROCESS CLAUSE OR THE
SIXTH AMENDMENT THAT REQUIRES THE STATES TO SUBORDINATE THE SOLEMN
BUSINESS OF CONDUCTING A CRIMINAL PROSECUTION TO THE WHIMSICAL--ALBEIT
VOLUNTARY--CAPRICE OF EVERY ACCUSED WHO WISHES TO USE HIS TRIAL AS A
VEHICLE FOR PERSONAL OR POLITICAL SELF-GRATIFICATION. 

THE COURT SEEMS TO SUGGEST THAT SO LONG AS THE ACCUSED IS WILLING TO
PAY THE CONSEQUENCES OF HIS FOLLY, THERE IS NO REASON FOR NOT ALLOWING
A DEFENDANT THE RIGHT TO SELF-REPRESENTATION.  ANTE, AT 834.  SEE ALSO
UNITED STATES EX REL. MALDONADO V. DENNO, 348 F.2D 12, 15 (CA2 1965)
("(EVEN IN CASES WHERE THE ACCUSED IS HARMING HIMSELF BY INSISTING ON
CONDUCTING HIS OWN DEFENSE, RESPECT FOR INDIVIDUAL AUTONOMY REQUIRES
THAT HE BE ALLOWED TO GO TO JAIL UNDER HIS OWN BANNER IF HE SO DESIRES
. . .").  THAT VIEW IGNORES THE ESTABLISHED PRINCIPLE THAT THE INTEREST
OF THE STATE IN A CRIMINAL PROSECUTION "IS NOT THAT IT SHALL WIN A
CASE, BUT THAT JUSTICE SHALL BE DONE."  BERGER V. UNITED STATES, 295
U.S. 78, 88 (1935).  SEE ALSO SINGER V. UNITED STATES, 380 U.S., AT
37.  FOR MY PART, I DO NOT BELIEVE THAT ANY AMOUNT OF PRO SE PLEADING
CAN CURE THE INJURY TO SOCIETY OF AN UNJUST RESULT, BUT I DO BELIEVE
THAT A JUST RESULT SHOULD PROVE TO BE AN EFFECTIVE BALM FOR ALMOST ANY
FRUSTRATED PRO SE DEFENDANT. 

        II 

THE COURT ARGUES THAT ITS CONCLUSION IS SUPPORTED BY THE HISTORICAL
EVIDENCE ON SELF-REPRESENTATION.  IT IS TRUE THAT SELF-REPRESENTATION
WAS COMMON, IF NOT REQUIRED, IN 18TH CENTURY ENGLISH AND AMERICAN
PROSECUTIONS.  THE COURT POINTS WITH SPECIAL EMPHASIS TO THE GUARANTEES
OF SELF-REPRESENTATION IN COLONIAL CHARTERS, EARLY STATE CONSTITUTIONS,
AND 35 OF THE FIRST JUDICIARY ACT AS EVIDENCE CONTEMPORANEOUS WITH THE
BILL OF RIGHTS OF WIDESPREAD RECOGNITION OF A RIGHT TO SELF
REPRESENTATION. 

I DO NOT PARTICIPATE IN THE COURT'S RELIANCE ON THE HISTORICAL
EVIDENCE.  TO BEGIN WITH, THE HISTORICAL EVIDENCE SEEMS TO ME TO BE
INCONCLUSIVE IN REVEALING THE ORIGINAL UNDERSTANDING OF THE LANGUAGE OF
THE SIXTH AMENDMENT.  AT THE TIME THE AMENDMENT WAS FIRST PROPOSED,
BOTH THE RIGHT TO SELF-REPRESENTATION AND THE RIGHT TO ASSISTANCE OF
COUNSEL IN FEDERAL PROSECUTION WERE GUARANTEED BY STATUTE.  THE SIXTH
AMENDMENT EXPRESSLY CONSTITUTIONALIZED THE RIGHT TO ASSISTANCE OF
COUNSEL BUT REMAINED CONSPICUOUSLY SILENT ON ANY RIGHT OF SELF
REPRESENTATION.  THE COURT BELIEVES THAT THIS SILENCE OF THE SIXTH
AMENDMENT AS TO THE LATTER RIGHT IS EVIDENCE OF THE FRAMERS' BELIEF
THAT THE RIGHT WAS SO OBVIOUS AND FUNDAMENTAL THAT IT DID NOT NEED TO
BE INCLUDED "IN SO MANY WORDS" IN ORDER TO BE PROTECTED BY THE
AMENDMENT.  I BELIEVE IT IS AT LEAST EQUALLY PLAUSIBLE TO CONCLUDE THAT
THE AMENDMENT'S SILENCE AS TO THE RIGHT OF SELF-REPRESENTATION
INDICATES THAT THE FRAMERS SIMPLY DID NOT HAVE THE SUBJECT IN MIND WHEN
THEY DRAFTED THE LANGUAGE. 

THE PAUCITY OF HISTORICAL SUPPORT FOR THE COURT'S POSITION BECOMES
FAR MORE PROFOUND WHEN ONE EXAMINES IT AGAINST THE BACKGROUND OF TWO
DEVELOPMENTS IN THE MORE RECENT HISTORY OF CRIMINAL PROCEDURE.  FIRST,
UNTIL THE MIDDLE OF THE 19TH CENTURY, THE DEFENDANT IN A CRIMINAL
PROCEEDING IN THIS COUNTRY WAS ALMOST ALWAYS DISQUALIFIED FROM
TESTIFYING AS A WITNESS BECAUSE OF HIS "INTEREST" IN THE OUTCOME.  SEE
GENERALLY FERGUSON V. GEORGIA, 365 U.S. 570 (1961).  THUS, THE ABILITY
TO DEFEND "IN PERSON" WAS FREQUENTLY THE DEFENDANT'S ONLY CHANCE TO
PRESENT HIS SIDE OF THE CASE TO THE JUDGE OR JURY.  SEE, E. G., WILSON
V. STATE, 50 TENN. 232 (1871).  SUCH DRACONIAN RULES OF EVIDENCE, OF
COURSE, ARE NOW A RELIC OF THE PAST BECAUSE VIRTUALLY EVERY STATE HAS
PASSED A STATUTE ABROGATING THE COMMON-LAW RULE OF DISQUALIFICATION. 
SEE FERGUSON V. GEORGIA, 365 U.S., AT 575 - 577, 596.  WITH THE
ABOLITION OF THE COMMON-LAW DISQUALIFICATION, THE RIGHT TO APPEAR "IN
PERSON" AS WELL AS BY COUNSEL LOST MOST, IF NOT ALL, OF ITS ORIGINAL
IMPORTANCE.  SEE GRANO, THE RIGHT TO COUNSEL:  COLLATERAL ISSUES
AFFECTING DUE PROCESS, 54 MINN. L. REV. 1175, 1192 - 1194 (1970). 

THE SECOND HISTORICAL DEVELOPMENT IS THIS COURT'S ELABORATION OF THE
RIGHT TO COUNSEL.  THE ROAD THE COURT HAS TRAVELED FROM POWELL V.
ALABAMA, 287 U.S. 45 (1932), TO ARGERSINGER V. HAMLIN, 407 U.S. 25
(1972), NEED NOT BE RECOUNTED HERE.  FOR OUR PURPOSES, IT IS SUFFICIENT
TO RECALL THAT FROM START TO FINISH THE DEVELOPMENT OF THE RIGHT TO
COUNSEL HAS BEEN BASED ON THE PREMISE THAT REPRESENTATION BY COUNSEL IS
ESSENTIAL TO ENSURE A FAIR TRIAL.  THE COURT CONCEDES THIS AND
ACKNOWLEDGES THAT "A STRONG ARGUMENT CAN SURELY BE MADE THAT THE WHOLE
THRUST OF THOSE DECISIONS MUST INEVITABLY LEAD TO THE CONCLUSION THAT A
STATE MAY CONSTITUTIONALLY IMPOSE A LAWYER UPON EVEN AN UNWILLING
DEFENDANT."  ANTE, AT 833.  NEVERTHELESS, THE COURT CONCLUDES THAT SELF
REPRESENTATION MUST BE ALLOWED DESPITE THE OBVIOUS DANGERS OF UNJUST
CONVICTIONS IN ORDER TO PROTECT THE INDIVIDUAL DEFENDANT'S RIGHT OF
FREE CHOICE.  AS I HAVE ALREADY INDICATED, I CANNOT AGREE TO SUCH A
DRASTIC CURTAILMENT OF THE INTEREST OF THE STATE IN SEEING THAT JUSTICE
IS DONE IN A REAL AND OBJECTIVE SENSE. 

        III 

IN CONCLUSION, I NOTE BRIEFLY THE PROCEDURAL PROBLEMS THAT, I
SUSPECT, TODAY'S DECISION WILL VISIT UPON TRIAL COURTS IN THE FUTURE. 
ALTHOUGH THE COURT INDICATES THAT A PRO SE DEFENDANT NECESSARILY WAIVES
ANY CLAIM HE MIGHT OTHERWISE MAKE OF INEFFECTIVE ASSISTANCE OF COUNSEL,
ANTE, AT 835 N. 46, THE OPINION LEAVES OPEN A HOST OF OTHER PROCEDURAL
QUESTIONS.  MUST EVERY DEFENDANT BE ADVISED OF HIS RIGHT TO PROCEED PRO
SE?  IF SO, WHEN MUST THAT NOTICE BE GIVEN?  SINCE THE RIGHT TO
ASSISTANCE OF COUNSEL AND THE RIGHT TO SELF-REPRESENTATION ARE MUTUALLY
EXCLUSIVE, HOW IS THE WAIVER OF EACH RIGHT TO BE MEASURED?  IF A
DEFENDANT HAS ELECTED TO EXERCISE HIS RIGHT TO PROCEED PRO SE, DOES HE
STILL HAVE A CONSTITUTIONAL RIGHT TO ASSISTANCE OF STANDBY COUNSEL? 
HOW SOON IN THE CRIMINAL PROCEEDING MUST A DEFENDANT DECIDE BETWEEN
PROCEEDING BY COUNSEL OR PRO SE?  MUST HE BE ALLOWED TO SWITCH IN
MIDTRIAL?  MAY A VIOLATION OF THE RIGHT TO SELF-REPRESENTATION EVER BE
HARMLESS ERROR?  MUST THE TRIAL COURT TREAT THE PRO SE DEFENDANT
DIFFERENTLY THAN IT WOULD PROFESSIONAL COUNSEL?  I ASSUME THAT MANY OF
THESE QUESTIONS WILL BE ANSWERED WITH FINALITY IN DUE COURSE.  MANY OF
THEM, HOWEVER, SUCH AS THE STANDARDS OF WAIVER AND THE TREATMENT OF THE
PRO SE DEFENDANT, WILL HAUNT THE TRIAL OF EVERY DEFENDANT WHO ELECTS TO
EXERCISE HIS RIGHT TO SELF-REPRESENTATION.  THE PROCEDURAL PROBLEMS
SPAWNED BY AN ABSOLUTE RIGHT TO SELF-REPRESENTATION WILL FAR OUTWEIGH
WHATEVER TACTICAL ADVANTAGE THE DEFENDANT MAY FEEL HE HAS GAINED BY
ELECTING TO REPRESENT HIMSELF. 

IF THERE IS ANY TRUTH TO THE OLD PROVERB THAT "(ONE WHO IS HIS OWN
LAWYER HAS A FOOL FOR A CLIENT," THE COURT BY ITS OPINION TODAY NOW
BESTOWS A CONSTITUTIONAL RIGHT ON ONE TO MAKE A FOOL OF HIMSELF. 
##DFN 

/1/ ABSENT A STATUTE GIVING A RIGHT TO SELF-REPRESENTATION, I
BELIEVE THAT TRIAL COURTS SHOULD HAVE DISCRETION UNDER THE CONSTITUTION
TO INSIST UPON REPRESENTATION BY COUNSEL IF THE INTERESTS OF JUSTICE SO
REQUIRE.  HOWEVER, I WOULD NOTE THAT THE RECORD DOES NOT SUPPORT THE
COURT'S CHARACTERIZATION OF THIS CASE AS ONE IN WHICH THAT OCCURRED. 
ALTHOUGH HE REQUESTED, AND INITIALLY WAS GRANTED, PERMISSION TO PROCEED
PRO SE, PETITIONER HAS EXPRESSED NO DISSATISFACTION WITH THE LAWYER WHO
REPRESENTED HIM AND HAS NOT ALLEGED THAT HIS DEFENSE WAS IMPAIRED OR
THAT HIS LAWYER REFUSED TO HONOR HIS SUGGESTIONS REGARDING HOW THE
TRIAL SHOULD BE CONDUCTED.  IN OTHER WORDS, TO USE THE COURT'S PHRASE,
PETITIONER HAS NEVER CONTENDED THAT "HIS DEFENSE" WAS NOT FULLY
PRESENTED.  INSTANCES OF OVERBEARING OR INEFFECTIVE COUNSEL CAN BE DELT
WITH WITHOUT CONTRIVING BROAD CONSTITUTIONAL RULES OF DUBIOUS
VALIDITY. 

/2/ THE COURT DELIBERATELY, AND IN MY VIEW PROPERLY, DECLINES TO
CHARACTERIZE THIS CASE AS ONE IN WHICH THE DEFENDANT WAS DENIED A FAIR
TRIAL.  SEE HERRING V. NEW YORK, POST, AT 871 (REHNQUIST, J.,
DISSENTING). 

/3/ THE COURT'S ATTEMPT TO DERIVE SUPPORT FOR ITS POSITION FROM THE
FACT THAT THE SIXTH AMENDMENT SPEAKS IN TERMS OF THE "ASSISTANCE OF
COUNSEL" REQUIRES LITTLE COMMENT.  IT IS MOST CURIOUS TO SUGGEST THAT
AN ACCUSED WHO EXERCISES HIS RIGHT TO "ASSISTANCE" HAS THEREBY
IMPLIEDLY CONSENTED TO SUBJECT HIMSELF TO A "MASTER."  ANTE, AT 820. 
AND COUNSEL'S RESPONSIBILITY TO HIS CLIENT AND ROLE IN THE LITIGATION
DO NOT VARY DEPENDING UPON WHETHER THE ACCUSED WOULD HAVE PREFERRED TO
REPRESENT HIMSELF. 

/4/ INDEED, THE PORTION OF THE COURT'S QUOTATION WHICH WARNS AGAINST
TURNING CONSTITUTIONAL PROTECTIONS INTO "FETTERS" REFERS TO THE RIGHT
TO TRIAL BY JURY, NOT THE RIGHT TO COUNSEL.  SEE ADAMS V. UNITED STATES
EX REL. MCCANN, 317 U. S. 269, 279 (1942).  THIS COURT HAS, OF COURSE,
SQUARELY HELD THAT THERE IS NO CONSTITUTIONAL RIGHT TO DISPENSE WITH A
JURY.  SINGER V. UNITED STATES, 380 U. S. 24 (1965). 

/5/ NO MORE RELEVANT IS SNYDER V. MASSACHUSETTS, 291 U. S. 97
(1934).  THE REFERENCE IN THAT CASE TO AN ACCUSED'S "POWER . . . TO
SUPERSEDE HIS LAWYERS" SIMPLY HELPED EXPLAIN WHY HIS DEFENSE MIGHT "BE
MADE EASIER" IF HE WERE "PERMITTED TO BE PRESENT AT THE EXAMINATION OF
JURORS OR THE SUMMING UP OF COUNSEL . . . ."  ID., AT 106.  MR. JUSTICE
CARDOZO'S OPINION FOR THE COURT MADE PLAIN THAT THIS RIGHT WAS ROOTED
IN CONSIDERATIONS OF FUNDAMENTAL FAIRNESS, AND WAS TO BE DISTINGUISHED
FROM THOSE CONFERRED BY THE CONFRONTATION CLAUSE.  SEE ID., AT 107. 
THE COURT'S PRESENT RELIANCE ON THE SNYDER DICTA IS THEREFORE
MISPLACED.  SEE N. 2, SUPRA. 

/6/ THE FACT THAT CONGRESS HAS RETAINED A STATUTORY RIGHT TO SELF
REPRESENTATION SUGGESTS THAT IT HAS ALSO ASSUMED THAT THE SIXTH
AMENDMENT DOES NOT GUARANTEE SUCH A RIGHT.  SEE 28 U.S.C. 1654. 

/7/ SOME OF THE DAMAGE WE CAN ANTICIPATE FROM A DEFENDANT'S ILL
ADVISED INSISTENCE ON CONDUCTING HIS OWN DEFENSE MAY BE MITIGATED BY
APPOINTING A QUALIFIED LAWYER TO SIT IN THE CASE AS THE TRADITIONAL
"FRIEND OF THE COURT."  THE COURT DOES NOT FORECLOSE THIS OPTION.  SEE
ANTE, AT 834 - 835, N. 46. 

JEROME B. FALK, JR., BY APPOINTMENT OF THE COURT, 417 U.S. 906,
ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WAS ROGER S.
HANSON. 

HOWARD J. SCHWAB, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE EVELLE J. YOUNGER,
ATTORNEY GENERAL, JACK R. WINKLER, CHIEF ASSISTANT ATTORNEY GENERAL, S.
CLARK MOORE, ASSISTANT ATTORNEY GENERAL, AND RUSSELL IUNGERICH AND
DONALD J. OESER, DEPUTY ATTORNEYS GENERAL. 

JOHN E. THORNE, PRO SE, FILED A BRIEF AS AMICUS CURIAE. 
..END :


















HERRING V. NEW YORK, 422 US 853 


       HERRING V. NEW YORK

        APPEAL FROM THE APPELLATE DIVISION, SUPREME COURT OF NEW

           YORK, SECOND JUDICIAL DEPARTMENT

        NO. 73 - 6587.  ARGUED FEBRUARY 26, 1975--DECIDED JUNE 30,

           1975; 43 APP. DIV. 2D 816, 351 N.Y.S. 2D 368, VACATED

           AND REMANDED. 


    A TOTAL DENIAL OF THE OPPORTUNITY FOR FINAL SUMMATION IN A

  NONJURY CRIMINAL TRIAL AS WELL AS IN A JURY TRIAL DEPRIVES THE

  ACCUSED OF THE BASIC RIGHT TO MAKE HIS DEFENSE, AND A NEW YORK

  STATUTE GRANTING EVERY JUDGE IN A NONJURY CRIMINAL TRIAL THE

  POWER TO DENY SUCH SUMMATION BEFORE RENDITION OF JUDGMENT

  VIOLATES THE SIXTH AMENDMENT OF THE CONSTITUTION AS APPLIED

  AGAINST THE STATES BY THE FOURTEENTH.  PP. 856 - 865. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, WHITE, MARSHALL, AND POWELL, JJ., JOINED. 

  REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH BURGER, C.

  J., AND BLACKMUN, JJ., JOINED, POST, P. 865. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

A NEW YORK LAW CONFERS UPON EVERY JUDGE IN A NONJURY CRIMINAL TRIAL
THE POWER TO DENY COUNSEL ANY OPPORTUNITY TO MAKE A SUMMATION OF THE
EVIDENCE BEFORE THE RENDITION OF JUDGMENT.  N. Y. CRIM. PROC. LAW
320.20 (3) (C) (1971).  /1/  IN THE CASE BEFORE US WE ARE CALLED UPON
TO ASSESS THE CONSTITUTIONAL VALIDITY OF THAT LAW. 

        I 

THE APPELLANT WAS BROUGHT TO TRIAL IN THE SUPREME COURT OF RICHMOND
COUNTY, N. Y., UPON CHARGES OF ATTEMPTED ROBBERY IN THE FIRST AND THIRD
DEGREES AND POSSESSION OF A DANGEROUS INSTRUMENT.  /2/ HE WAIVED A
JURY. 

THE TRIAL BEGAN ON A THURSDAY, AND, AFTER CERTAIN PRELIMINARIES, THE
BALANCE OF THAT DAY AND MOST OF FRIDAY WERE SPENT ON THE CASE FOR THE
PROSECUTION.  THE COMPLAINING WITNESS, ALLEN BRAXTON, TESTIFIED THAT
THE APPELLANT HAD APPROACHED HIM OUTSIDE HIS HOME IN A STATEN ISLAND
HOUSING PROJECT AT ABOUT SIX O'CLOCK ON THE EVENING OF SEPTEMBER 15,
1971, AND ASKED FOR MONEY.  HE SAID THAT WHEN HE REFUSED THIS DEMAND,
THE APPELLANT HAD SWUNG A KNIFE AT HIM.  ON CROSS-EXAMINATION, THE
APPELLANT'S LAWYER ATTEMPTED TO IMPEACH THE CREDIBILITY OF THIS
EVIDENCE BY DEMONSTRATING INCONSISTENCIES BETWEEN BRAXTON'S TESTIMONY
AND OTHER SWORN STATEMENTS THAT BRAXTON HAD PREVIOUSLY MADE.  /3/ THE
ONLY OTHER WITNESS FOR THE PROSECUTION WAS THE POLICE OFFICER WHO HAD
ARRESTED THE APPELLANT UPON THE COMPLAINT OF BRAXTON.  THE OFFICER
TESTIFIED THAT BRAXTON HAD REPORTED THE ALLEGED INCIDENT TO HIM, AND
THAT THE APPELLANT, WHEN CONFRONTED BY THE OFFICER LATER IN THE
EVENING, HAD DENIED BRAXTON'S STORY AND SAID THAT HE HAD BEEN WORKING
FOR A MR. TAYLOR AT THE TIME OF THE ALLEGED OFFENSE.  THE OFFICER
TESTIFIED THAT HE HAD THEN ARRESTED THE APPELLANT AND FOUND A SMALL
KNIFE IN HIS POCKET.  /4/ 

AT THE CLOSE OF THE CASE FOR THE PROSECUTION, THE COURT GRANTED A
DEFENSE MOTION TO DISMISS THE CHARGE OF POSSESSION OF A DANGEROUS
INSTRUMENT ON THE GROUND THAT THE KNIFE IN EVIDENCE WAS TOO SMALL TO
QUALIFY AS A DANGEROUS INSTRUMENT UNDER STATE LAW.  THE TRIAL WAS THEN
ADJOURNED FOR THE TWO-DAY WEEKEND. 

PROCEEDINGS DID NOT ACTUALLY RESUME UNTIL THE FOLLOWING MONDAY
AFTERNOON.  THE FIRST WITNESS FOR THE DEFENSE WAS DONALD TAYLOR, WHO
WAS THE APPELLANT'S EMPLOYER.  HE TESTIFIED THAT HE RECALLED SEEING THE
APPELLANT ON THE JOB PREMISES AT ABOUT 5:30 P.M. ON THE DAY OF THE
ALLEGED OFFENSE.  THE APPELLANT THEN TOOK THE STAND AND DENIED
BRAXTON'S STORY.  HE SAID THAT HE HAD BEEN WORKING ON A REFRIGERATOR AT
HIS PLACE OF EMPLOYMENT DURING THE TIME OF THE ALLEGED OFFENSE, AND
FURTHER TESTIFIED THAT BRAXTON, A FORMER NEIGHBOR, HAD THREATENED ON
SEVERAL OCCASIONS TO "FIX" HIM FOR REFUSING TO GIVE BRAXTON MONEY FOR
WINE AND DRUGS. 

AT THE CONCLUSION OF THE CASE FOR THE DEFENSE, COUNSEL MADE A MOTION
TO DISMISS THE ROBBERY CHARGES.  THIS MOTION WAS DENIED.  THE
APPELLANT'S LAWYER THEN REQUESTED TO "BE HEARD SOMEWHAT ON THE FACTS." 
THE TRIAL JUDGE REPLIED:  UNDER THE NEW STATUTE, SUMMATION IS
DISCRETIONARY, AND I CHOOSE NOT TO HEAR SUMMATIONS."  THE JUDGE
THEREUPON FOUND THE APPELLANT GUILTY OF ATTEMPTED ROBBERY IN THE THIRD
DEGREE, AND SUBSEQUENTLY SENTENCED HIM TO SERVE AN INDETERMINATE TERM
OF IMPRISONMENT WITH A MAXIMUM OF FOUR YEARS.  THE CONVICTION WAS
AFFIRMED WITHOUT OPINION BY AN INTERMEDIATE APPELLATE COURT.  /5/ LEAVE
TO APPEAL TO THE NEW YORK COURT OF APPEALS WAS DENIED.  AN APPEAL WAS
THEN BROUGHT HERE, AND WE NOTED PROBABLE JURISDICTION.  419 U.S. 893. 

        II 

THE SIXTH AMENDMENT GUARANTEES TO THE ACCUSED IN ALL CRIMINAL
PROSECUTIONS THE RIGHTS TO A "SPEEDY AND PUBLIC TRIAL," TO AN
"IMPARTIAL JURY," TO NOTICE OF THE "NATURE AND CAUSE OF THE
ACCUSATION," TO BE "CONFRONTED" WITH OPPOSING WITNESSES, TO "COMPULSORY
PROCESS" FOR DEFENSE WITNESSES, AND TO THE "ASSISTANCE OF COUNSEL." 
/6/  THESE FUNDAMENTAL RIGHTS ARE EXTENDED TO A DEFENDANT IN A STATE
CRIMINAL PROSECUTION THROUGH THE FOURTEENTH AMENDMENT.  /7/ 

THE DECISIONS OF THIS COURT HAVE NOT GIVEN TO THESE CONSTITUTIONAL
PROVISIONS A NARROWLY LITERALISTIC CONSTRUCTION.  MORE SPECIFICALLY,
THE RIGHT TO THE ASSISTANCE OF COUNSEL HAS BEEN UNDERSTOOD TO MEAN THAT
THERE CAN BE NO RESTRICTIONS UPON THE FUNCTION OF COUNSEL IN DEFENDING
A CRIMINAL PROSECUTION IN ACCORD WITH THE TRADITIONS OF THE ADVERSARY
FACTFINDING PROCESS THAT HAS BEEN CONSTITUTIONALIZED IN THE SIXTH AND
FOURTEENTH AMENDMENTS.  FOR EXAMPLE, IN FERGUSON V. GEORGIA, 365 U.S.
570, THE COURT HELD CONSTITUTIONALLY INVALID A STATE STATUTE THAT,
WHILE PERMITTING THE DEFENDANT TO MAKE AN UNSWORN STATEMENT TO THE
COURT AND JURY, PREVENTED DEFENSE COUNSEL FROM ELICITING THE
DEFENDANT'S TESTIMONY THROUGH DIRECT EXAMINATION.  SIMILARLY, IN BROOKS
V. TENNESSEE, 406 U.S. 605, THE COURT FOUND UNCONSTITUTIONAL A STATE
LAW THAT RESTRICTED THE RIGHT OF COUNSEL TO DECIDE "WHETHER, AND WHEN
IN THE COURSE OF PRESENTING HIS DEFENSE, THE ACCUSED SHOULD TAKE THE
STAND."  ID., AT 613.  THE RIGHT TO THE ASSISTANCE OF COUNSEL HAS THUS
BEEN GIVEN A MEANING THAT ENSURES TO THE DEFENSE IN A CRIMINAL TRIAL
THE OPPORTUNITY TO PARTICIPATE FULLY AND FAIRLY IN THE ADVERSARY
FACTFINDING PROCESS. 

THERE CAN BE NO DOUBT THAT CLOSING ARGUMENT FOR THE DEFENSE IS A
BASIC ELEMENT OF THE ADVERSARY FACTFINDING PROCESS IN A CRIMINAL
TRIAL.  ACCORDINGLY, IT HAS UNIVERSALLY BEEN HELD THAT COUNSEL FOR THE
DEFENSE HAS A RIGHT TO MAKE A CLOSING SUMMATION TO THE JURY, NO MATTER
HOW STRONG THE CASE FOR THE PROSECUTION MAY APPEAR TO THE PRESIDING
JUDGE.  /8/ THE ISSUE HAS BEEN CONSIDERED LESS OFTEN IN THE CONTEXT OF
A SO-CALLED BENCH TRAIL.  BUT THE OVERWHELMING WEIGHT OF AUTHORITY, IN
BOTH FEDERAL AND STATE COURTS, HOLDS THAT A TOTAL DENIAL OF THE
OPPORTUNITY FOR FINAL ARGUMENT IN A NONJURY CRIMINAL TRIAL IS A DENIAL
OF THE BASIC RIGHT OF THE ACCUSED TO MAKE HIS DEFENSE.  /9/ 

ONE OF MANY CASES SO HOLDING WAS YOPPS V. STATE, 228 MD. 204, 178 A.
2D 879 (1962).  THE DEFENDANT IN THAT CASE, INDICTED FOR BURGLARY, WAS
TRIED BY THE COURT WITHOUT A JURY.  THE DEFENDANT IN HIS TESTIMONY
ADMITTED BEING IN THE VICINITY OF THE OFFENSE, BUT DENIED ANY
INVOLVEMENT IN THE CRIME.  AT THE CONCLUSION OF THE TESTIMONY, THE
TRIAL JUDGE ANNOUNCED A JUDGMENT OF GUILTY.  DEFENSE COUNSEL OBJECTED,
STATING THAT HE WISHED TO PRESENT ARGUMENT ON THE FACTS.  BUT THE TRIAL
JUDGE REFUSED TO HEAR ANY ARGUMENT ON THE GROUND THAT ONLY A QUESTION
OF CREDIBILITY WAS INVOLVED, AND THAT THEREFORE COUNSEL'S ARGUMENT
WOULD NOT CHANGE HIS MIND.  THE MARYLAND COURT OF APPEALS HELD THAT THE
TRIAL COURT'S REFUSAL TO PERMIT DEFENSE COUNSEL TO MAKE A FINAL
SUMMATION VIOLATED THE DEFENDANT'S RIGHT TO THE ASSISTANCE OF COUNSEL
UNDER THE STATE AND FEDERAL CONSTITUTIONS: 

   "THE CONSTITUTIONAL RIGHT OF A DEFENDANT TO BE HEARD THROUGH

  COUNSEL NECESSARILY INCLUDES HIS RIGHT TO HAVE HIS COUNSEL MAKE A

  PROPER ARGUMENT ON THE EVIDENCE AND THE APPLICABLE LAW IN HIS

  FAVOR, HOWEVER SIMPLE, CLEAR, UNIMPEACHED, AND CONCLUSIVE THE

  EVIDENCE MAY SEEM, UNLESS HE HAS WAIVED HIS RIGHT TO SUCH

  ARGUMENT, OR UNLESS THE ARGUMENT IS NOT WITHIN THE ISSUES IN THE

  CASE, AND THE TRIAL COURT HAS NO DISCRETION TO DENY THE ACCUSED

  SUCH RIGHT."  ID., AT 207, 178 A. 2D, AT 881. 

THE WIDESPREAD RECOGNITION OF THE RIGHT OF THE DEFENSE TO MAKE A
CLOSING SUMMARY OF THE EVIDENCE TO THE TRIER OF THE FACTS, WHETHER
JUDGE OR JURY, FINDS SOLID SUPPORT IN HISTORY.  IN THE 16TH AND 17TH
CENTURIES, WHEN NOTIONS OF COMPULSORY PROCESS, CONFRONTATION, AND
COUNSEL WERE IN THEIR INFANCY, THE ESSENCE OF THE ENGLISH CRIMINAL
TRIAL WAS ARGUMENT BETWEEN THE DEFENDANT AND COUNSEL FOR THE CROWN. 
WHATEVER OTHER PROCEDURAL PROTECTIONS MAY HAVE BEEN LACKING, THERE WAS
NO ABSENCE OF DEBATE ON THE FACTUAL AND LEGAL ISSUES RAISED IN A
CRIMINAL CASE.  /10/ AS THE RIGHTS TO COMPULSORY PROCESS, TO
CONFRONTATION, AND TO COUNSEL DEVELOPED, /11/ THE ADVERSARY SYSTEM'S
COMMITMENT TO ARGUMENT WAS NEITHER DISCARDED NOR DILUTED.  RATHER, THE
REFORM IN PROCEDURE HAD THE EFFECT OF SHIFTING THE PRIMARY FUNCTION OF
ARGUMENT TO SUMMATION OF THE EVIDENCE AT THE CLOSE OF TRIAL, IN
CONTRAST TO THE "FRAGMENTED" FACTUAL ARGUMENT THAT HAD BEEN TYPICAL OF
THE EARLIER COMMON LAW.  /12/

IT CAN HARDLY BE QUESTIONED THAT CLOSING ARGUMENT SERVES TO SHARPEN
AND CLARIFY THE ISSUES FOR RESOLUTION BY THE TRIER OF FACT IN A
CRIMINAL CASE.  FOR IT IS ONLY AFTER ALL THE EVIDENCE IS IN THAT
COUNSEL FOR THE PARTIES ARE IN A POSITION TO PRESENT THEIR RESPECTIVE
VERSIONS OF THE CASE AS A WHOLE.  ONLY THEN CAN THEY ARGUE THE
INFERENCES TO BE DRAWN FROM ALL THE TESTIMONY, AND POINT OUT THE
WEAKNESSES OF THEIR ADVERSARIES' POSITIONS.  AND FOR THE DEFENSE,
CLOSING ARGUMENT IS THE LAST CLEAR CHANCE TO PERSUADE THE TRIER OF FACT
THAT THERE MAY BE REASONABLE DOUBT OF THE DEFENDANT'S GUILT.  SEE IN RE
WINSHIP, 397 U.S. 358. 

THE VERY PREMISE OF OUR ADVERSARY SYSTEM OF CRIMINAL JUSTICE IS THAT
PARTISAN ADVOCACY ON BOTH SIDES OF A CASE WILL BEST PROMOTE THE
ULTIMATE OBJECTIVE THAT THE GUILTY BE CONVICTED AND THE INNOCENT GO
FREE.  IN A CRIMINAL TRIAL, WHICH IS IN THE END BASICALLY A FACTFINDING
PROCESS, NO ASPECT OF SUCH ADVOCACY COULD BE MORE IMPORTANT THAN THE
OPPORTUNITY FINALLY TO MARSHAL THE EVIDENCE FOR EACH SIDE BEFORE
SUBMISSION OF THE CASE TO JUDGMENT. 

THIS IS NOT TO SAY THAT CLOSING ARGUMENTS IN A CRIMINAL CASE MUST BE
UNCONTROLLED OR EVEN UNRESTRAINED.  THE PRESIDING JUDGE MUST BE AND IS
GIVEN GREAT LATITUDE IN CONTROLLING THE DURATION AND LIMITING THE SCOPE
OF CLOSING SUMMATIONS.  HE MAY LIMIT COUNSEL TO A REASONABLE TIME AND
MAY TERMINATE ARGUMENT WHEN CONTINUATION WOULD BE REPETITIVE OR
REDUNDANT.  HE MAY ENSURE THAT ARGUMENT DOES NOT STRAY UNDULY FROM THE
MARK, OR OTHERWISE IMPEDE THE FAIR AND ORDERLY CONDUCT OF THE TRIAL. 
IN ALL THESE RESPECTS HE MUST HAVE BROAD DISCRETION.  SEE GENERALLY 5
R. ANDERSON, WHARTON'S CRIMINAL LAW AND PROCEDURE 2077 (1957).  CF.
AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, THE
PROSECUTION FUNCTION 5.8, PP. 126 - 129, AND THE DEFENSE FUNCTION 7.6,
PP. 277 - 282 (APP. DRAFT 1971).  7.8, PP. 277 - 282 (APP. DRAFT
1971). 

BUT THERE CAN BE NO JUSTIFICATION FOR A STATUTE THAT EMPOWERS A
TRIAL JUDGE TO DENY ABSOLUTELY THE OPPORTUNITY FOR ANY CLOSING
SUMMATION AT ALL.  THE ONLY CONCEIVABLE INTEREST SERVED BY SUCH A
STATUTE IS EXPEDIENCY.  YET THE DIFFERENCE IN ANY CASE BETWEEN TOTAL
DENIAL OF FINAL ARGUMENT AND A CONCISE BUT PERSUASIVE SUMMATION COULD
SPELL THE DIFFERENCE, FOR THE DEFENDANT, BETWEEN LIBERTY AND UNJUST
IMPRISONMENT.  /13/ 

SOME CASES MAY APPEAR TO THE TRIAL JUDGE TO BE SIMPLE--OPEN AND SHUT
-AT THE CLOSE OF THE EVIDENCE.  AND SURELY IN MANY SUCH CASES A CLOSING
ARGUMENT WILL, IN THE WORDS OF MR. JUSTICE JACKSON, BE "LIKELY TO LEAVE
(A) JUDGE JUST WHERE IT FOUND HIM."  /14/ BUT JUST AS SURELY, THERE
WILL BE CASES WHERE CLOSING ARGUMENT MAY CORRECT A PREMATURE
MISJUDGMENT AND AVOID AN OTHERWISE ERRONEOUS VERDICT.  AND THERE IS NO
CERTAIN WAY FOR A TRIAL JUDGE TO IDENTIFY ACCURATELY WHICH CASES THESE
WILL BE, UNTIL THE JUDGE HAS HEARD THE CLOSING SUMMATION OF COUNSEL. 
/15/ 

THE PRESENT CASE IS ILLUSTRATIVE.  THIS THREE-DAY TRIAL WAS
INTERRUPTED BY AN INTERVAL OF MORE THAN TWO DAYS--A PERIOD DURING WHICH
THE JUDGE'S MEMORY MAY WELL HAVE DIMMED, HOWEVER CONSCIENTIOUS A NOTE
TAKER HE MAY HAVE BEEN.  AT THE CONCLUSION OF THE EVIDENCE ON THE
TRIAL'S FINAL DAY, THE APPELLANT'S LAWYER MIGHT USEFULLY HAVE POINTED
TO THE DIRECT CONFLICT IN THE TRIAL TESTIMONY OF THE ONLY TWO
PROSECUTION WITNESSES CONCERNING HOW AND WHEN THE APPELLANT WAS FOUND
ON THE EVENING OF THE ALLEGED OFFENSE.  /16/ HE MIGHT ALSO HAVE
STRESSED THE MANY INCONSISTENCIES, ELICITED ON CROSS-EXAMINATION,
BETWEEN THE TRIAL TESTIMONY OF THE COMPLAINING WITNESS AND HIS EARLIER
SWORN STATEMENTS.  /17/ HE MIGHT REASONABLY HAVE ARGUED THAT THE
TESTIMONY OF THE APPELLANT'S EMPLOYER WAS ENTITLED TO GREATER
CREDIBILITY THAN THAT OF THE COMPLAINING WITNESS, WHO, ACCORDING TO THE
APPELLANT, HAD THREATENED TO "FIX" HIM BECAUSE OF PERSONAL DIFFERENCES
IN THE PAST.  THERE IS NO WAY TO KNOW WHETHER THESE OR ANY OTHER
APPROPRIATE ARGUMENTS IN SUMMATION MIGHT HAVE AFFECTED THE ULTIMATE
JUDGMENT IN THIS CASE.  THE CREDIBILITY ASSESSMENT WAS SOLELY FOR THE
TRIER OF FACT.  BUT BEFORE THAT DETERMINATION WAS MADE, THE APPELLANT,
THROUGH COUNSEL, HAD A RIGHT TO BE HEARD IN SUMMATION OF THE EVIDENCE
FROM THE POINT OF VIEW MOST FAVORABLE TO HIM.  /18/ 

IN DENYING THE APPELLANT THIS RIGHT UNDER THE AUTHORITY OF ITS
STATUTE, NEW YORK DENIED HIM THE ASSISTANCE OF COUNSEL THAT THE
CONSTITUTION GUARANTEES.  ACCORDINGLY, THE JUDGMENT BEFORE US IS
VACATED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

                                  IT IS SO ORDERED. 

/1/ SECTION 320.20 (3) (C) PROVIDES: 

"THE COURT MAY IN ITS DISCRETION PERMIT THE PARTIES TO DELIVER

  SUMMATIONS.  IF THE COURT GRANTS PERMISSION TO ONE PARTY, IT MUST

  GRANT IT TO THE OTHER ALSO.  IF BOTH PARTIES DELIVER SUMMATIONS,

  THE DEFENDANT'S SUMMATION MUST BE DELIVERED FIRST."  BY CONTRAST,

  NEW YORK LAW EXPLICITLY GRANTS A RIGHT TO MAKE A "CLOSING

  STATEMENT" IN EVERY CIVIL CASE.  N. Y. CIV. PRAC.  RULE 4016

  (1963). 

/2/ N. Y. PENAL LAW 110.00/160.15, 110.00/160.05, 265.05 (1975). 

/3/ ON CROSS-EXAMINATION OF BRAXTON, THE APPELLANT'S LAWYER
DEMONSTRATED THE FOLLOWING INCONSISTENCIES:  FIRST, BRAXTON TESTIFIED
AT TRIAL THAT, AFTER RUNNING INTO HIS HOUSE TO EVADE THE APPELLANT, HE
DID NOT LOOK BACK OUTSIDE TO SEE WHERE THE APPELLANT HAD GONE; BUT
BEFORE THE GRAND JURY, BRAXTON HAD SAID THAT, AFTER ENTERING HIS HOUSE,
HE HAD LOOKED OUTSIDE AND THE APPELLANT WAS GONE.  SECOND, BRAXTON
TESTIFIED AT TRIAL THAT THE KNIFEBLADE WAS SHINY; BUT IN HIS GRAND JURY
TESTIMONY HE HAD SAID THAT HE COULD NOT REMEMBER IF IT WAS SHINY OR
NOT.  THIRD, BRAXTON TESTIFIED AT TRIAL THAT THE APPELLANT HAD ASKED
HIM FOR MONEY IN A "SOFT" VOICE; BUT BEFORE THE GRAND JURY HE HAD
STATED THAT THE REQUEST FOR MONEY WAS "KIND OF LOUD."  FOURTH, BRAXTON
TESTIFIED AT TRIAL THAT THE APPELLANT HAD SWUNG A BLADE AT HIM ONCE;
BUT IN THE FELONY COMPLAINT FILED THE DAY AFTER THE ALLEGED CRIME, HE
HAD STATED THAT THE APPELLANT HAD SWUNG A KNIFE AT HIM "A COUPLE OF
TIMES." 

/4/ THERE WAS A MAJOR INCONSISTENCY BETWEEN THE POLICE OFFICER'S
TESTIMONY AND THAT OF BRAXTON.  BRAXTON TESTIFIED THAT HE WAS WALKING
DOWN THE STREET WITH THE OFFICER AT ABOUT 6:45 P. M. WHEN THEY CAME
ACROSS THE APPELLANT.  BUT THE OFFICER TESTIFIED THAT HE HAD SEARCHED
FOR THE APPELLANT WITH BRAXTON UNTIL ONLY ABOUT 6:30 P.M., WHEN THEY
HAD SEPARATED, AND THAT ABOUT AN HOUR LATER HE HAD SEEN THE APPELLANT
AND BRAXTON ON OPPOSITE SIDES OF BROADWAY.  THUS BRAXTON TESTIFIED THAT
HE AND THE OFFICER WERE TOGETHER WHEN THEY FOUND THE APPELLANT ABOUT
6:45 P.M., WHILE THE OFFICER'S TESTIMONY WAS THAT HE HAD SEPARATED FROM
BRAXTON ABOUT 6:30 P. M., AND THAT HE NEXT SAW BRAXTON AND THE
APPELLANT ON OPPOSITE SIDES OF A STREET AT ABOUT 7:30 P.M. 

/5/ THE COURT SUBSEQUENTLY CERTIFIED THAT IN AFFIRMING THE JUDGMENT,
IT HAD REJECTED THE APPELLANT'S CONSTITUTIONAL CLAIMS: 

     "UPON THE APPEAL HEREIN, THERE WAS PRESENTED AND PASSED UPON

  THE FOLLOWING CONSTITUTIONAL QUESTION, NAMELY, WHETHER RELATOR'S

  RIGHTS UNDER THE FOURTH, SIXTH AND FOURTEENTH AMENDMENTS WERE

  DENIED BY THE TRIAL COURT'S APPLICATION OF PARAGRAPH (C) OF

  SUBDIVISION 3 OF CPL 320.20 TO REFUSE APPELLANT PERMISSION TO

  DELIVER A SUMMATION.  THIS COURT CONSIDERED APPELLANT'S SAID

  CONVICTION AND DETERMINED THAT NONE OF HIS CONSTITUTIONAL RIGHTS

WERE VIOLATED." 

/6/ THE SIXTH AMENDMENT PROVIDES: 

 "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE

  RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY . . .

  (,) TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION; TO

  BE CONFRONTED WITH THE WITNESSES AGAINST HIM; TO HAVE COMPULSORY

  PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE THE

  ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

/7/ SEE KLOPFER V. NORTH CAROLINA, 386 U.S. 213 (SPEEDY TRIAL); IN
RE OLIVER, 333 U.S. 257 (PUBLIC TRIAL); DUNCAN V. LOUISIANA, 391 U.S.
145 (JURY TRIAL); COLE V. ARKANSAS, 333 U.S. 196 (NOTICE OF NATURE AND
CAUSE OF ACCUSATION); POINTER V. TEXAS, 380 U.S. 400 (CONFRONTATION);
WASHINGTON V. TEXAS, 388 U.S. 14 (COMPULSORY PROCESS); GIDEON V.
WAINWRIGHT, 372 U.S. 335, AND ARGERSINGER V. HAMLIN, 407 U.S. 25
(ASSISTANCE OF COUNSEL). 

/8/ SEE, E. G., JACKSON V. STATE, 239 ALA. 38, 193 SO. 417 (1940);
YELDELL V. STATE, 100 ALA. 26, 14 SO. 570 (1894); PEOPLE V. GREEN, 99
CAL. 564, 34 P. 231 (1893); STATE V. HOYT, 47 CONN. 518 (1880); HALL V.
STATE, 119 FLA. 38, 160 SO. 511 (1935); WILLIAMS V. STATE, 60 GA. 367
(1878); PORTER V. STATE, 6 GA. APP. 770, 65 S. E. 814 (1909); STATE V.
GILBERT, 65 IDAHO 210, 142 P. 2D 584 (1943); PEOPLE V. MCMULLEN, 300
ILL. 383, 133 N. E. 328 (1921); LYNCH V. STATE, 9 IND. 541 (1857);
STATE V. VERRY, 36 KAN. 416, 13 P. 838 (1887); SIZEMORE V.
COMMONWEALTH, 240 KY. 279, 42 S. W. 2D 328 (1931); STATE V. CANCIENNE,
50 LA. ANN. 1324, 24 SO. 321 (1898); WINGO V. STATE, 62 MISS.  311
(1884); STATE V. PAGE, 21 MO. 257 (1855); STATE V. TIGHE, 27 MONT. 327,
71 P. 3 (1903); STATE V. SHEDOUDY, 45 N. M. 516, 118 P. 2D 280 (1941);
PEOPLE V. MARCELIN, 23 APP. DIV. 2D 368, 260 N. Y. S. 2D 560 (1965);
STATE V. HARDY, 189 N. C. 799, 128 S. E. 152 (1925); WEAVER V. STATE,
24 OHIO ST. 584 (1874); STATE V. ROGOWAY, 45 ORE.  601, 78 P. 987
(1904), REHEARING, 45 ORE.  611, 81 P. 234 (1905); STEWART V.
COMMONWEALTH, 117 PA. 378, 11 A. 370 (1887); STATE V. BALLENGER, 202 S.
C. 155, 24 S. E. 2D 175 (1943); WORD V. COMMONWEALTH, 30 VA. 743
(1831); STATE V. MAYO, 42 WASH. 540, 85 P. 251 (1906); SEATTLE V.
ERICKSON, 55 WASH. 675, 104 P. 1128 (1909). 

ONE TREATISE STATES THE GENERAL RULE AS FOLLOWS:  "THE PRESENTATION
OF HIS DEFENSE BY ARGUMENT TO THE JURY, BY HIMSELF OR HIS COUNSEL, IS A
CONSTITUTIONAL RIGHT OF THE DEFENDANT WHICH MAY NOT BE DENIED HIM,
HOWEVER CLEAR THE EVIDENCE MAY SEEM TO THE TRIAL COURT."  5 R.
ANDERSON, WHARTON'S CRIMINAL LAW AND PROCEDURE 2077 (1957). 

/9/ SEE UNITED STATES V. WALLS, 443 F. 2D 1220 (CA6 1971); THOMAS V.
DISTRICT OF COLUMBIA, 67 APP. D.C. 179, 90 F. 2D 424 (1937); UNITED
STATES EX REL. SPEARS V. JOHNSON, 327 F. SUPP. 1021 (ED PA. 1971),
REV'D ON OTHER GROUNDS, 463 F.2D 1024 (CA3 1972); UNITED STATES EX REL.
WILCOX V. PENNSYLVANIA, 273 F. SUPP. 923 (ED PA. 1967); FLOYD V. STATE,
90 SO. 2D 105 (FLA. 1956); OLDS V. COMMONWEALTH, 10 KY. 465 (1821);
YOPPS V. STATE, 228 MD. 204, 178 A. 2D 879 (1962); PEOPLE V. THOMAS,
390 MICH. 93, 210 N. W. 2D 776 (1973); DECKER V. STATE, 113 OHIO ST.
512, 150 N.E. 74 (1925); COMMONWEALTH V. MCNAIR, 208 PA. SUPER.  369,
222 A.2D 599 (1966); COMMONWEALTH V. GAMBRELL, 450 PA. 290, 301 A.2D
596 (1973); ANSELIN V. STATE, 72 TEX. CR. 17, 160 S.W. 713 (1913);
WALKER V. STATE, 133 TEX. CR. 300, 110 S.W. 2D 578 (1937); FERGUSON V.
STATE, 133 TEX. CR. 250, 110 S.W. 2D 61 (1937).  CF. COLLINGSWORTH V.
MAYO, 173 F.2D 695, 697 (CA5 1949); STATE V. HOLLINGSWORTH, 160 LA. 26,
106 SO. 662 (1925).  BUT SEE PEOPLE V. MANSKE, 399 ILL. 176, 77 N.E. 2D
164 (1948).  CF. PEOPLE V. BERGER, 288 ILL. 47, 119 N.E. 975 (1918);
CASTERLOW V. STATE, 256 IND. 214, 267 N.E. 2D 552 (1971); REED V.
STATE, 232 IND. 68, 111 N.E. 2D 661 (1953); LEWIS V. STATE, 11 GA. APP.
14, 74 S. E. 442 (1912). 

/10/ STEPHEN HAS DESCRIBED THE TRIAL PROCEDURE IN THIS PERIOD AS A
"LONG ARGUMENT BETWEEN THE PRISONER AND THE COUNSEL FOR THE CROWN."  1
J. STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 326 (1883).  FOR A
FULLER DESCRIPTION OF THE TRIAL PROCESS IN THAT PERIOD, SEE ID., AT 325
- 326, 350. 

/11/ SEE 7 WILL.  3, C. 3, 1 (1695); 1 ANNE, STAT. 2, C. 9, 3 (1701);
6 & 7 WILL.  4.  C. 114, 1 (1836). 

/12/ CF. STEPHEN, SUPRA, N. 10, AT 349. 

IN THE COLONIES, WHERE A SIMILAR REFORM IN CRIMINAL DEFENDANTS'
RIGHTS OCCURRED, COMMON PRACTICE, IF NOT RIGHT, APPARENTLY GAVE TO THE
ACCUSED THE OPPORTUNITY TO SUM UP HIS CASE IN CLOSING ARGUMENT.  FOR
EXAMPLE, ZEPHANIAH SWIFT, IN AN EARLY COLONIAL TREATISE ON THE LAW IN
CONNECTICUT, WROTE: 

"WHEN THE EXHIBITION OF EVIDENCE IS CLOSED, THE ATTORNEY FOR THE
STATE OPENS THE ARGUMENT, THE COUNSEL FOR THE PRISONER FOLLOWS), THE
ATTORNEY FOR THE STATE THEN CLOSES THE ARGUMENT, AND THE CHIEF JUSTICE
THEN SUMS UP THE EVIDENCE IN HIS CHARGE DELIVERED TO THE JURY, IN WHICH
HE STATES IN THE MOST CANDID AND IMPARTIAL MANNER, THE EVIDENCE AND THE
LAW, AND THE ARGUMENTS OF THE COUNSEL FOR THE STATE, AS WELL AS THE
PRISONER.  . . ."  2 Z. SWIFT, A SYSTEM OF THE LAWS OF THE STATE OF
CONNECTICUT 401 (1796). 

WITH A LESSER DEGREE OF CERTAINTY, A MODERN SCHOLAR CONCLUDES THAT
IN THE TRIAL OF CAPITAL OFFENSES IN COLONIAL VIRGINIA, IT WAS LIKELY,
BUT NOT CERTAIN, THAT THE ACCUSED WOULD BE GIVEN AN OPPORTUNITY TO MAKE
A CLOSING ARGUMENT IN SUMMATION AT THE END OF THE TRIAL.  SEE H.
RANKIN, CRIMINAL TRIAL PROCEEDINGS IN THE GENERAL COURT OF COLONIAL
VIRGINIA 101 (1965). 

IN ENGLAND, IN 1865, THE RIGHT OF THE DEFENDANT IN A CRIMINAL TRIAL
TO MAKE A CLOSING ARGUMENT, EITHER BY HIMSELF OR BY COUNSEL IF HE WAS
REPRESENTED, WAS GIVEN EXPRESS STATUTORY RECOGNITION:  "(UPON EVERY
TRIAL . . . WHETHER THE PRISONERS . . . OR ANY OF THEM, SHALL BE
DEFENDED BY COUNSEL OR NOT . . . SUCH PRISONER . . . SHALL BE ENTITLED
. . . WHEN ALL THE EVIDENCE IS CONCLUDED TO SUM UP THE EVIDENCE
RESPECTIVELY."  CRIMINAL PROCEDURE ACT OF 1865, 28 VICT., C. 18, 2.
THIS REMAINS THE RULE IN ENGLAND.  10 HALSBURY'S LAWS OF ENGLAND 777,
PP. 422 - 423 (3D ED. 1955).  SEE ALSO T. BUTLER & M. GARSIA,
ARCHIBOLD'S PLEADING, EVIDENCE AND PRACTICE IN CRIMINAL CASES, 558
(37TH ED. 1969).  CF. R. V. WAINWRIGHT, 13 COX CR. CASES 171 (1875); R.
V. WICKHAM, 55 CR. APP. R. 199 (1971) (NOTED AT 1971 CRIM. L. REV.
233). 

/13/ WE DEAL IN THIS CASE ONLY WITH FINAL ARGUMENT OR SUMMATION AT
THE CONCLUSION OF THE EVIDENCE IN A CRIMINAL TRIAL.  NOTHING SAID IN
THIS OPINION IS TO BE UNDERSTOOD AS IMPLYING THE EXISTENCE OF A
CONSTITUTIONAL RIGHT TO ORAL ARGUMENT AT ANY OTHER STAGE OF THE TRIAL
OR APPELLATE PROCESS. 

/14/ R. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY 301 (1941). 

/15/ THE CONTENTION HAS BEEN MADE THAT, WHILE A RIGHT TO MAKE
CLOSING ARGUMENT SHOULD BE RECOGNIZED IN A JURY TRIAL, THERE IS
INSUFFICIENT JUSTIFICATION FOR SUCH A RIGHT IN THE CONTEXT OF A BENCH
TRIAL.  THIS VIEW RESTS ON THE PREMISE THAT A JUDGE, WITH LEGAL
TRAINING AND EXPERIENCE, WILL BE LIKELY TO SEE THE CASE CLEARLY,
RENDERING ARGUMENT SUPERFLUOUS, OR TO RECOGNIZE THAT FURTHER
ILLUMINATION OF THE ISSUES WOULD BE HELPFUL, IN WHICH CASE HE WOULD
PERMIT CLOSING ARGUMENT. 

WE FIND THIS CONTENTION UNPERSUASIVE.  JUDICIAL TRAINING AND
EXPERTISE, HOWEVER IT MAY ENHANCE JUDGMENT, DOES NOT RENDER MEMORY OR
REASONING INFALLIBLE.  MOREOVER, IN ONE IMPORTANT RESPECT, CLOSING
ARGUMENT MAY BE EVEN MORE IMPORTANT IN A BENCH TRIAL THAN IN A TRIAL BY
JURY.  AS MR. JUSTICE POWELL HAS OBSERVED, THE "COLLECTIVE JUDGMENT" OF
THE JURY "TENDS TO COMPENSATE FOR INDIVIDUAL SHORTCOMINGS AND FURNISHES
SOME ASSURANCE OF A RELIABLE DECISION."  POWELL, JURY TRIAL OF CRIMES,
23 WASH. & LEE L. REV. 1, 4 (1966).  IN CONTRAST, THE JUDGE WHO TRIES A
CASE PRESUMABLY WILL REACH HIS VERDICT WITH DELIBERATION AND
CONTEMPLATION, BUT MUST REACH IT WITHOUT THE STIMULATION OF OPPOSING
VIEWPOINTS INHERENT IN THE COLLEGIAL DECISIONMAKING PROCESS OF A JURY. 

/16/ SEE N. 4, SUPRA. 

/17/ SEE N. 3, SUPRA. 

/18/ A DEFENDANT WHO HAS EXERCISED THE RIGHT TO CONDUCT HIS OWN
DEFENSE HAS, OF COURSE, THE SAME RIGHT TO MAKE A CLOSING ARGUMENT.  SEE
FARETTA V. CALIFORNIA, ANTE, P. 806. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

        I 

THE COURT HAS MADE OF THIS A VERY CURIOUS CASE.  WHAT BEGAN AS A
CONSTITUTIONAL CHALLENGE TO A STATUTE WHICH GIVES TRIAL COURTS
DISCRETION AS TO WHETHER "PARTIES" MAY DELIVER SUMMATIONS, HAS BEEN
TRANSFORMED INTO AN EXPLORATION OF THE RIGHT TO COUNSEL--ALTHOUGH NO
ONE DOUBTS THAT APPELLANT WAS COMPETENTLY REPRESENTED THROUGHOUT THE
PROCEEDINGS WHICH RESULTED IN HIS CONVICTION.  TODAY'S OPINION, IN
DERIVING FROM THE RIGHT TO COUNSEL FURTHER RIGHTS RELATING TO THE
CONDUCT OF A TRIAL, EXPANDS THE EARLIER HOLDINGS IN FERGUSON V.
GEORGIA, 365 U.S. 570 (1961), AND BROOKS V. TENNESSEE, 406 U.S. 605
(1972).  IN EACH OF THESE THREE INSTANCES ONE MUST PRESUME, IN VIEW OF
THE COURT'S ANALYTICAL APPROACH, THAT REGARDLESS OF THE INTRINSIC
IMPORTANCE OF THE RIGHTS INVOLVED, THEY ARE ENFORCED ONLY BECAUSE THE
ACCUSED HAS A PRIOR RIGHT TO THE ASSISTANCE OF A THIRD PARTY IN THE
PREPARATION AND PRESENTATION OF HIS DEFENSE. 

I THINK THAT IN EACH INSTANCE A STATEMENT FROM MR. JUSTICE
FRANKFURTER'S SEPARATE OPINION IN FERGUSON IS APROPOS:  "THIS IS NOT A
RIGHT-TO-COUNSEL CASE."  365 U.S., AT 599.  IN THE PRESENT CASE, THE
CRUCIAL FACT IS NOT THAT COUNSEL WISHES TO PRESENT A SUMMATION OF THE
EVIDENCE, BUT THAT THE DEFENDANT--WHETHER THROUGH COUNSEL OR OTHERWISE
-WISHES TO MAKE SUCH A SUMMATION.  OF COURSE I DO NOT SUGGEST THAT THE
RIGHTS ENFORCED IN THESE CASES ARE WITHOUT BASIS, AT LEAST IN
PARTICULAR CASES, IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  CF. ID., AT 598 - 601 (OPINION OF FRANKFURTER, J.); BROOKS
V. TENNESSEE, SUPRA, AT 618 (REHNQUIST, J., DISSENTING).  BUT I DO
SUGGEST THAT THE COURT'S ANALYTICAL FRAMEWORK, AND ITS RESULTING
PROPHYLACTIC RULE, ARE WRONGLY EMPLOYED TO DECIDE THIS CASE. 

I WOULD HAVE THOUGHT THAT IN FARETTA V. CALIFORNIA, ANTE, P. 806,
THE COURT HAD RECANTED ITS APPROACH IN FERGUSON AND BROOKS V.
TENNESSEE.  IN FARETTA THE COURT CONCLUDED THAT IT IS THE SIXTH
AMENDMENT, AND NOT THE RIGHT-TO-COUNSEL CLAUSE OF THAT AMENDMENT, WHICH
"CONSTITUTIONALIZES THE RIGHT IN AN ADVERSARY CRIMINAL TRIAL TO MAKE A
DEFENSE AS WE KNOW IT."  ANTE, AT 818.  YET IN THE PRESENT CASE WE ARE
INFORMED THAT IT IS THE RIGHT-TO-COUNSEL CLAUSE WHICH
CONSTITUTIONALIZES THE RIGHT TO PRESENT A DEFENSE "IN ACCORD WITH THE
TRADITIONS OF THE ADVERSARY FACTFINDING PROCESS."  ANTE, AT 857.  NOT
BEING CONTENT MERELY TO CONTRADICT FARETTA BY HOLDING THAT ENTITLEMENT
TO THE TRADITIONS OF OUR JUDICIAL SYSTEM DEPENDS UPON THE RIGHT TO
RETAIN COUNSEL, THE COURT ALSO STATES THAT, "OF COURSE, THE SAME RIGHT
TO MAKE A CLOSING ARGUMENT" IS AVAILABLE TO THOSE WHO CHOOSE NOT TO
EXERCISE THEIR RIGHT TO COUNSEL.  ANTE, AT 864 N. 18.  TO COMPLETE THE
CONFUSION, THE COURT DOES NOT EXPLAIN THE LATTER IPSE DIXIT, BUT DOES
CITE ONE CASE--FARETTA. 

        II 

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT HAS LONG BEEN
RECOGNIZED AS ASSURING "FUNDAMENTAL FAIRNESS" IN STATE CRIMINAL
PROCEEDINGS.  SEE, E.G., LISENBA V. CALIFORNIA, 314 U.S. 219, 236
(1941); MOORE V. DEMPSEY, 261 U.S. 86, 90 - 91 (1923).  THROUGHOUT THE
HISTORY OF THE CLAUSE WE HAVE GENERALLY CONSIDERED THE QUESTION OF
FAIRNESS ON A CASE-BY-CASE BASIS, REFLECTING THE FACT THAT THE ELEMENTS
OF FAIRNESS VARY WITH THE CIRCUMSTANCES OF PARTICULAR PROCEEDINGS.  AS
THE COURT OBSERVED IN SNYDER V. MASSACHUSETTS, 291 U.S. 97, 116 - 117
(1934): 

"DUE PROCESS OF LAW REQUIRES THAT THE PROCEEDINGS SHALL BE FAIR, BUT
FAIRNESS IS A RELATIVE, NOT AN ABSOLUTE CONCEPT.  . . . WHAT IS FAIR IN
ONE SET OF CIRCUMSTANCES MAY BE AN ACT OF TYRANNY IN OTHERS."  SEE,
E.G., SHEPPARD V. MAXWELL, 384 U.S. 333 (1966); SPENCER V. TEXAS, 385
U.S. 554 (1967); CHAMBERS V. MISSISSIPPI, 410 U.S. 284 (1973); CUPP V.
NAUGHTEN, 414 U.S. 141 (1973).     HOWEVER IN SOME INSTANCES THE COURT
HAS ENGAGED IN A PROCESS OF "SPECIFIC INCORPORATION," WHEREBY CERTAIN
PROVISIONS OF THE BILL OF RIGHTS HAVE BEEN APPLIED AGAINST THE STATES. 
SEE THE CASES CITED ANTE, AT 857 N. 7.  IN MAKING THE DECISION WHETHER
OR NOT A PARTICULAR PROVISION RELATING TO THE CONDUCT OF A TRIAL SHOULD
BE INCORPORATED, WE HAVE BEEN GUIDED BY WHETHER THE RIGHT IN QUESTION
MAY BE DEEMED ESSENTIAL TO FUNDAMENTAL FAIRNESS--AN ANALYTICAL APPROACH
WHICH IS COMPELLED IF WE ARE TO REMAIN TRUE TO THE BASIC ORIENTATION OF
THE DUE PROCESS CLAUSE.  SEE, E.G., IN RE OLIVER, 333 U.S. 257, 270 -
271 (1948) (PUBLIC TRIAL); DUNCAN V. LOUISIANA, 391 U.S. 145, 155 - 158
(1968) (JURY TRIAL); POINTER V. TEXAS, 380 U.S. 400, 403 - 404 (1965)
(CONFRONTATION); WASHINGTON V. TEXAS, 388 U.S. 14, 17 - 19 (1967)
(COMPULSORY PROCESS); GIDEON V. WAINWRIGHT, 372 U.S. 335, 342 (1963)
(APPOINTED COUNSEL).  BUT ONCE WE HAVE DETERMINED THAT A PARTICULAR
RIGHT SHOULD BE INCORPORATED AGAINST THE STATES, WE HAVE ABANDONED CASE
BY-CASE CONSIDERATIONS OF FAIRNESS.  INCORPORATION, IN EFFECT, RESULTS
IN THE ESTABLISHMENT OF A STRICT PROPHYLACTIC RULE, ONE WHICH IS TO BE
GENERALLY OBSERVED IN EVERY CASE REGARDLESS OF ITS PARTICULAR
CIRCUMSTANCES.  IT IS A JUDGMENT ON THE PART OF THIS COURT THAT THE
PROBABILITY OF UNFAIRNESS IN THE ABSENCE OF A PARTICULAR RIGHT IS SO
GREAT THAT DENIGRATION OF THE RIGHT WILL NOT BE COUNTENANCED UNDER ANY
CIRCUMSTANCES.  THESE JUDGEMENTS BY THIS COURT REFLECTS SIMILAR
JUDGMENTS MADE BY THE CONSTITUTION'S FRAMERS WITH REGARD TO THE FEDERAL
GOVERNMENT. 

BEYOND CERTAIN OF THE SPECIFIED RIGHTS IN THE BILL OF RIGHTS,
HOWEVER, I DO NOT UNDERSTAND THE BASIS FOR ABANDONING THE CASE-BY-CASE
APPROACH TO FUNDAMENTAL FAIRNESS.  THERE ARE A MYRIAD OF RULES AND
PRACTICES GOVERNING THE CONDUCT OF CRIMINAL PROCEEDINGS WHICH MAY OR
MAY NOT IN PARTICULAR CIRCUMSTANCES BE NECESSARY TO ASSURE FUNDAMENTAL
FAIRNESS.  OBVIOUS EXAMPLES ARE THE RULES GOVERNING THE INTRODUCTION
AND TESTING OF EVIDENCE, AS WELL AS, I THINK, THE NEW YORK RULE
GOVERNING SUMMATIONS IN NONJURY TRIALS.  SUCH MATTERS ARE NOT
SPECIFICALLY DEALT WITH IN THE TEXT OF THE CONSTITUTION, NOR ARE THEY
SUBJECT TO THE JUDGMENT THAT UNIFORM APPLICATION OF A PARTICULAR RULE
IS NECESSARY BECAUSE THE LIKELIHOOD OF UNFAIRNESS IS TOO GREAT WHEN
THAT RULE IS NOT OBSERVED.  AS TO SUCH MATTERS IT IS APPROPRIATE, AND
FREQUENTLY NECESSARY, THAT TRIAL JUDGES BE ACCORDED CONSIDERABLE
DISCRETION, SUBJECT OF COURSE TO BOTH APPELLATE REVIEW ON AN ABUSE-OF
DISCRETION STANDARD AND, ULTIMATELY, TO THE FUNDAMENTAL FAIRNESS
INQUIRY UNDER THE FOURTEENTH AMENDMENT. 

THE PRESENT CASE IS A PRIME EXAMPLE OF WHY A PROPHYLACTIC RULE WITH
REGARD TO SUMMATIONS IN NONJURY TRIALS IS THOROUGHLY INAPPROPRIATE. 
THE CASE WAS TRIED BEFORE A JUDGE WHO, UNLIKE A JURY, MAY TAKE NOTES ON
TESTIMONY, AND WHO IS EXPERIENCED IN BOTH JUDGING THE CREDIBILITY OF
WITNESSES AND TESTING THE RELEVANCE OF THEIR TESTIMONY TO THE ELEMENTS
WHICH MUST BE PROVED TO OBTAIN A CONVICTION.  THE CASE WAS CONCEPTUALLY
AND FACTUALLY A SIMPLE ONE, INVOLVING NO MORE THAN WHETHER ONE WAS TO
BELIEVE THE VICTIM, DESPITE THE INCONSISTENCIES IN HIS TESTIMONY, OR
THE DEFENDANT.  /1/  THE JUDGE HAD PREVIOUSLY PERMITTED APPELLANT'S
COUNSEL TO SUMMARIZE THE EVIDENCE, ON THE OCCASION OF THE MOTION TO
DISMISS AT THE CLOSE OF THE STATE'S CASE.  THAT APPELLANT'S COUNSEL HAD
CONSIDERABLE FAITH IN THE JUDGE'S FAMILIARITY WITH, AND ABILITY TO
ORGANIZE, THE EVIDENCE IS SHOWN BY THE TRANSCRIPT OF THAT EARLIER
SUMMATION: 

     "(MR. ADAMS:) DO YOU WANT TO HEAR ME EXTENSIVELY ON THAT,

  JUDGE?  OR I HAVE A WITNESS HERE, I CAN GO ON, OR WOULD YOU

  RATHER HEAR ME ON SOME LENGTHY ARGUMENT SUBSEQUENTLY, JUDGE? 

     "THE COURT:  I WILL HEAR ANYTHING YOU HAVE TO SAY. 

     "MR. ADAMS:  ALL RIGHT.  JUDGE, I BELIEVE HERE THAT AS A
MATTER

OF LAW WE HAVE A DOUBT HERE.  FIRSTLY, ON THIS FIRST WITNESS OF

  THE PROSECUTION HERE, JUDGE.  THERE WERE NUMEROUS

  INCONSISTENCIES, AND I WILL NOT BORE THE COURT READING THAT.  OF

  COURSE THE COURT HAS COPIOUS NOTES ON IT, AND I AM SURE IT IS

  VERY FRESH IN THE COURT'S MIND.  BUT ON TOP OF THAT, JUDGE, WE

  HAVE A QUESTIONABLE COMPLAINANT, WITH A QUESTIONABLE WAY OF HOW

  IT HAPPENED, NO WITNESS OTHER THAN THIS COMPLAINANT. 

     "AN OFFICER WHO CHECKED OUT THIS PARTICULAR MATTER TESTIFIED

  HERE AND SAID THAT THE MAN WAS WORKING AT THAT TIME.  A DEFINITE

  DENIAL BY THE DEFENDANT.  AND I BELIEVE THAT AS A MATTER OF LAW,

  JUDGE, THERE IS A REASONABLE DOUBT HERE."  APP.  66 (EMPHASIS

ADDED). 

SIMILARLY, WHEN THE OPPORTUNITY TO SUMMARIZE WAS DENIED, APPELLANT'S
COUNSEL DID NOT SO MUCH AS SUGGEST THAT HE THOUGHT IT NECESSARY TO
REFRESH THE JUDGE'S MEMORY AS TO CERTAIN MATTERS.  /2/  IT SHOULD ALSO
BE NOTED THAT IN HIS EARLIER ARGUMENT COUNSEL HAD REFERRED TO MOST OF
THE MATTERS WHICH THE COURT TODAY SUGGESTS MIGHT HAVE USEFULLY BEEN
BROUGHT TO THE JUDGE'S ATTENTION IN A FINAL SUMMATION.  SEE ANTE, AT
864.  FINALLY, THE FACT THAT THE JUDGE CONDUCTED THIS TRIAL IN A FAIR
MINDED FASHION, AND WOULD NOT ARBITRARILY PREVENT A SUMMATION WHICH
COULD BE EXPECTED TO CLARIFY HIS UNDERSTANDING OF THE CASE, IS
EVIDENCED BY HIS DISMISSAL OF ONE COUNT OVER THE VIGOROUS PROTESTS OF
THE PROSECUTION. 

WHATEVER THEORETICAL EFFECT THE DENIAL OF ARGUMENT MAY HAVE HAD ON
THE JUDGMENT OF CONVICTION, ITS PRACTICAL EFFECT ON THE OUTCOME MUST
HAVE BEEN CLOSE TO NOTHING.  THE TRIAL JUDGE WAS NOT CONDUCTING A MOOT
COURT; HE WAS SITTING AS THE FINDER OF FACT IN A TRIAL IN WHICH HE HAD
BEEN PRESENT DURING THE TESTIMONY OF EVERY SINGLE WITNESS.  NO
EXPERIENCED ADVOCATE WOULD INSIST ON PRESENTING ARGUMENT TO SUCH A
JUDGE AFTER HE HAD INDICATED HIS BELIEF THAT ARGUMENT WOULD NOT BE OF
ASSISTANCE.  TRIAL COUNSEL HERE DID NOT INSIST, AND THE CLAIM WHICH IS
TODAY SUSTAINED BY THIS COURT IS URGED BY OTHER COUNSEL 

THE TRUTH OF THE MATTER IS THAT APPELLANT RECEIVED A FAIR TRIAL, AND
I DO NOT READ THE COURT'S OPINION TO CLAIM OTHERWISE.  THE OPINION
INSTEAD ESTABLISHES A RIGHT TO SUMMATION IN CRIMINAL TRIALS REGARDLESS
OF CIRCUMSTANCES, BY TAGGING THAT RIGHT ONTO ONE OF THE SPECIFICALLY
INCORPORATED RIGHTS.  IT THEREBY CONVENIENTLY AVOIDS THE DIFFICULTIES
OF BEING UNABLE TO CHARACTERIZE APPELLANT'S TRIAL AS FUNDAMENTALLY
UNFAIR, BUT ONLY AT THE EXPENSE OF IGNORING THE LOGICAL DIFFICULTY OF
ADORNING THE SPECIFICALLY INCORPORATED RIGHTS WITH CHARACTERISTICS
WHICH ARE NOT THEMSELVES NECESSARY FOR FUNDAMENTAL FAIRNESS.  /3/ 

THE NATURE OF THE RIGHT WHICH THE COURT TODAY CREATES IS AS CURIOUS
AS ITS GENESIS.  APPARENTLY IT REQUIRES NOTHING MORE THAN PRO FORMA
OBSERVANCE, SINCE THE TRIAL JUDGE "MUST BE AND IS GIVEN GREAT LATITUDE"
IN CONTROLLING THE DURATION AND LIMITING THE SCOPE OF CLOSING
SUMMATIONS.  HE MAY DETERMINE WHAT IS A "REASONABLE" TIME FOR ARGUMENT,
AND AT WHAT POINT THE ARGUMENT BECOMES REPETITIVE OR REDUNDANT, OR
STRAYS "UNDULY" FROM THE MARK.  "IN ALL THESE RESPECTS HE MUST HAVE
BROAD DISCRETION."  ANTE, AT 862.  THAT IS, AFTER 30 SECONDS, OR SOME
OTHER MINIMAL PERIOD OF ARGUMENT, THE JUDGE IS FREE TO EXERCISE HIS
DISCRETION.  IT IS NOT CLEAR WHY THIS SHOULD BE SO.  IF IT IS TRUE THAT
"THERE IS NO CERTAIN WAY FOR A TRIAL JUDGE TO IDENTIFY ACCURATELY
(THOSE CASES IN WHICH CLOSING ARGUMENT MAY BE BENEFICIAL), UNTIL THE
JUDGE HAS HEARD THE CLOSING SUMMATION OF COUNSEL," ANTE, AT 863, IT IS
EQUALLY TRUE THAT HE CANNOT DETERMINE WHETHER CONTINUED ARGUMENT WILL
BE REPETITIVE, REDUNDANT, OR OTHERWISE USELESS UNTIL HE HAS HEARD THE
CONTINUED ARGUMENT.  BUT IN ANY EVENT, THE CONSTITUTIONAL ISSUE DOES
RATHER QUICKLY BECOME FRAMED ONCE AGAIN ACCORDING TO THE STANDARDS
WHICH SHOULD HAVE GOVERNED ALL ALONG--WHETHER OR NOT THE JUDGE'S
ACTIONS IN THE PARTICULAR CASE DEPRIVED THE DEFENDANT OF A TRIAL WHICH
WAS FUNDAMENTALLY FAIR.  /4/ 

BY PROPAGATING A RIGHT TO SUMMATION--DESPITE SUCH A RIGHT'S LACK OF
TEXTUAL BASIS, AND DESPITE THE INABILITY REASONABLY TO CONCLUDE THAT
THE RIGHT IS SO BASIC THAT WE CANNOT CHANCE TRIAL COURT DISCRETION IN
THE MATTER--THE COURT HAS FURTHERED THE PRACTICE OF REVIEWING STATE
CRIMINAL TRIALS IN A PIECEMEAL FASHION.  THE INCIDENT UPON WHICH THIS
REVERSAL IS BASED WAS BUT ONE STAGE IN A CAREFULLY CONDUCTED TRIAL, AND
CANNOT BE CLAIMED TO HAVE PERMEATED THE ENTIRE PROCEEDING AS WOULD
TRIAL WITHOUT A JURY, OR WITHOUT COUNSEL.  THE COURT IS THUS
DISREGARDING THE BASIC QUESTION OF WHETHER THE PROCEEDING BY WHICH A
DEFENDANT IS DEPRIVED OF HIS LIBERTY IS FUNDAMENTALLY FAIR. 

THE COURT'S DECISION DERIVES NO SUPPORT EITHER FROM LOGIC OR FROM THE
AMENDMENT IT PROFESSES TO APPLY.  SINCE IT REVERSES A CRIMINAL
CONVICTION WHICH WAS FAIRLY OBTAINED, I DISSENT. 

/1/ THE EMPLOYER'S CREDIBILITY WAS NOT AT ISSUE.  NOT ONLY WAS HE
VAGUE AS TO THE TIMES AT WHICH HE HAD SEEN APPELLANT AT HIS GARAGE, BUT
THAT GARAGE WAS LOCATED ONLY 31/2 BLOCKS FROM THE SCENE OF THE CRIME. 
APP. 76, 86. 

/2/ THE COLLOQUY AT THE END OF THE TRIAL WAS AS FOLLOWS: 

"MR. ADAMS:  JUDGE, AT THIS TIME I RESPECTFULLY MOVE TO--MAKE TWO
MOTIONS, JUDGE.  FIRSTLY, THAT THE COURT DISMISS THE TWO COUNTS, FIRST
COUNT AND THE SECOND COUNT OF THE INDICTMENT ON THE GROUNDS THE PEOPLE
HAVE FAILED TO MAKE OUT A PRIMA FACIE CASE; AND ON THE FURTHER GROUNDS
THE PEOPLE HAVE FAILED TO PROVE THE DEFENDANT GUILTY OF EACH AND EVERY
PART AND PARCEL OF THE CRIMES CHARGED IN COUNT ONE AND COUNT TWO BEYOND
A REASONABLE DOUBT AS A MATTER OF LAW, AND AS A MATTER OF FACT. 

"THE COURT:  MOTION DENIED.  I WILL TAKE A SHORT RECESS TO
DELIBERATE, AND I WILL GIVE YOU A VERDICT. 

"MR. ADAMS:  WELL, CAN I BE HEARD SOMEWHAT ON THE FACTS? 

"THE COURT:  UNDER THE NEW STATUTE, SUMMATION IS DISCRETIONARY, AND
I CHOOSE NOT TO HEAR SUMMATIONS. 

"THE CLERK:  REMAND."  APP.  92. 

/3/ WHILE THE COURT, ANTE, AT 862, PRESENTS A VARIETY OF ARGUMENTS
SUPPORTING THE WISDOM AND DESIRABILITY OF GENERALLY PERMITTING CLOSING
ARGUMENTS IN NONJURY TRIALS, NONE OF THEM IMPRESS ME AS RISING TO THE
LEVEL OF FUNDAMENTAL FAIRNESS.  THEY WOULD BE OF SUBSTANTIAL MERIT IF
PRESENTED TO THE NEW YORK LEGISLATURE, BUT ARE HARDLY RELEVANT TO THE
CONSTITUTIONAL INQUIRY WHICH IT IS OUR DUTY TO PERFORM.  AS FOR THE
COURT'S FINAL FLOURISH ("NO ASPECT OF SUCH ADVOCACY COULD BE MORE
IMPORTANT"), IT IS OBVIOUS HYPERBOLE WHICH CAN ONLY BE UTTERED IN
COMPLETE DISREGARD OF SUCH MATTERS AS CROSS-EXAMINATION, THE SELECTION
OF TRIAL STRATEGY AND WITNESSES, AND ATTEMPTS TO EXCLUDE
UNCONSTITUTIONALLY OBTAINED EVIDENCE. 

/4/ I WOULD ALSO THINK IT NOT UNLIKELY UNDER THE COURT'S HOLDING
THAT POSTTRIAL BRIEFING WOULD BE AN ADEQUATE SUBSTITUTE FOR ORAL
SUMMATION, SINCE IT MEETS THE CONCERNS WHICH THE COURT EXPRESSES AS THE
BASIS FOR ITS NEWLY FOUND CONSTITUTIONAL RIGHT.  SEE ANTE, AT 862. 

DIANA A. STEELE ARGUED THE CAUSE FOR APPELLANT.  WITH HER ON THE
BRIEFS WAS WILLIAM E. HELLERSTEIN. 

GABRIEL I. LEVY, ASSISTANT ATTORNEY GENERAL OF NEW YORK, AND NORMAN
C. MORSE ARGUED THE CAUSE FOR APPELLEE.  MR. MORSE WAS ON THE BRIEF. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, PRO SE, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND JOEL LEWITTES AND MR.
LEVY, ASSISTANT ATTORNEYS GENERAL, FILED A BRIEF FOR THE ATTORNEY
GENERAL OF NEW YORK. 
..END :















UNITED STATES V. BRIGNONI-PONCE, 422 U.S. 873 


       UNITED STATES V. BRIGNONI-PONCE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 NINTH CIRCUIT

        NO. 74 - 114.  ARGUED FEBRUARY 18, 1975--DECIDED JUNE 30,

        1975;

        499 F.2D 1109, AFFIRMED. 


    THE FOURTH AMENDMENT HELD NOT TO ALLOW A ROVING PATROL OF THE

  BORDER PATROL TO STOP A VEHICLE NEAR THE MEXICAN BORDER AND

  QUESTION ITS OCCUPANTS ABOUT THEIR CITIZENSHIP AND IMMIGRATION

  STATUS, WHEN THE ONLY GROUND FOR SUSPICION IS THAT THE OCCUPANTS

  APPEAR TO BE OF MEXICAN ANCESTRY.  EXCEPT AT THE BORDER AND ITS

  FUNCTIONAL EQUIVALENTS, PATROLLING OFFICERS MAY STOP VEHICLES

  ONLY IF THEY ARE AWARE OF SPECIFIC ARTICULABLE FACTS, TOGETHER

  WITH RATIONAL INFERENCES THEREFROM, REASONABLY WARRANTING

  SUSPICION THAT THE VEHICLES CONTAIN ALIENS WHO MAY BE ILLEGALLY

IN THE COUNTRY.  PP. 878 - 887. 

     (A) BECAUSE OF THE IMPORTANT GOVERNMENTAL INTEREST IN
COMBATING

  THE ILLEGAL ENTRY OF ALIENS AT THE BORDER, THE MINIMAL INTRUSION

OF A BRIEF STOP, AND THE ABSENCE OF PRACTICAL ALTERNATIVES FOR

  POLICING THE BORDER, AN OFFICER, WHOSE OBSERVATIONS LEAD HIM

  REASONABLY TO SUSPECT THAT A PARTICULAR VEHICLE MAY CONTAIN

  ALIENS WHO ARE ILLEGALLY IN THE COUNTRY, MAY STOP THE CAR

  BRIEFLY, QUESTION THE DRIVER AND PASSENGERS ABOUT THEIR

  CITIZENSHIP AND IMMIGRATION STATUS, AND ASK THEM TO EXPLAIN

  SUSPICIOUS CIRCUMSTANCES; BUT ANY FURTHER DETENTION OR SEARCH

  MUST BE BASED ON CONSENT OR PROBABLE CAUSE.  PP. 878 - 882. 

     (B) TO ALLOW ROVING PATROLS THE BROAD AND UNLIMITED DISCRETION

  URGED BY THE GOVERNMENT TO STOP ALL VEHICLES IN THE BORDER AREA

  WITHOUT ANY REASON TO SUSPECT THAT THEY HAVE VIOLATED ANY LAW,

  WOULD NOT BE "REASONABLE" UNDER THE FOURTH AMENDMENT.  PP. 882 -

 883. 

     (C) ASSUMING THAT CONGRESS HAS THE POWER TO ADMIT ALIENS ON

  CONDITION THAT THEY SUBMIT TO REASONABLE QUESTIONING ABOUT THEIR

  RIGHT TO BE IN THE COUNTRY, SUCH POWER CANNOT DIMINISH THE FOURTH

  AMENDMENT RIGHTS OF CITIZENS WHO MAY BE MISTAKEN FOR ALIENS.  THE

  FOURTH AMENDMENT THEREFORE FORBIDS STOPPING PERSONS FOR

  QUESTIONING ABOUT THEIR CITIZENSHIP ON LESS THAN A REASONABLE

  SUSPICION THAT THEY MAY BE ALIENS.  PP. 883 - 884 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BRENNAN, STEWART, MARSHALL, AND REHNQUIST, JJ., JOINED. 

  REHNQUIST, J., FILED A CONCURRING OPINION, POST, P. 887.  BURGER,

  C. J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH

  BLACKMUN, J., JOINED, POST, P. 899.  DOUGLAS, J., FILED AN

  OPINION CONCURRING IN THE JUDGMENT, POST.  P. 888.  WHITE, J.,

  FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH BLACKMUN,

  J., JOINED, POST, P. 914. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS AS TO THE UNITED STATES BORDER PATROL'S
AUTHORITY TO STOP AUTOMOBILES IN AREAS NEAR THE MEXICAN BORDER.  IT
DIFFERS FROM OUR DECISION IN ALMEIDA-SANCHEZ V. UNITED STATES, 413 U.S.
266 (1973), IN THAT THE BORDER PATROL DOES NOT CLAIM AUTHORITY TO
SEARCH CARS, BUT ONLY TO QUESTION THE OCCUPANTS ABOUT THEIR CITIZENSHIP
AND IMMIGRATION STATUS. 

  I 

AS PART OF ITS REGULAR TRAFFIC-CHECKING OPERATIONS IN SOUTHERN
CALIFORNIA, THE BORDER PATROL OPERATES A FIXED CHECKPOINT ON INTERSTATE
HIGHWAY 5 SOUTH OF SAN CLEMENTE.  ON THE EVENING OF MARCH 11, 1973, THE
CHECKPOINT WAS CLOSED BECAUSE OF INCLEMENT WEATHER, BUT TWO OFFICERS
WERE OBSERVING NORTHBOUND TRAFFIC FROM A PATROL CAR PARKED AT THE SIDE
OF THE HIGHWAY.  THE ROAD WAS DARK, AND THEY WERE USING THE PATROL
CAR'S HEADLIGHTS TO ILLUMINATE PASSING CARS.  THEY PURSUED RESPONDENT'S
CAR AND STOPPED IT, SAYING LATER THAT THEIR ONLY REASON FOR DOING SO
WAS THAT ITS THREE OCCUPANTS APPEARED TO BE OF MEXICAN DESCENT.  THE
OFFICERS QUESTIONED RESPONDENT AND HIS TWO PASSENGERS ABOUT THEIR
CITIZENSHIP AND LEARNED THAT THE PASSENGERS WERE ALIENS WHO HAD ENTERED
THE COUNTRY ILLEGALLY.  ALL THREE WERE THEN ARRESTED, AND RESPONDENT
WAS CHARGED WITH TWO COUNTS OF KNOWINGLY TRANSPORTING ILLEGAL
IMMIGRANTS, A VIOLATION OF 274 (A) (2) OF THE IMMIGRATION AND
NATIONALITY ACT, 66 STAT. 228, 8 U.S.C. 1324 (A)(2).  AT TRIAL RESOPN
RESPONDENT MOVED TO SUPPRESS THE TESTIMONY OF AND ABOUT THE TWO
PASSENGERS, CLAIMING THAT THIS EVIDENCE WAS THE FRUIT OF AN ILLEGAL
SEIZURE.  THE TRIAL COURT DENIED THE MOTION, THE ALIENS TESTIFIED AT
TRIAL, AND RESPONDENT WAS CONVICTED ON BOTH COUNTS. 

RESPONDENT'S APPEAL WAS PENDING IN THE COURT OF APPEALS FOR THE
NINTH CIRCUIT WHEN WE ANNOUNCED OUR DECISION IN ALMEIDA-SANCHEZ V.
UNITED STATES, SUPRA, HOLDING THAT THE FOURTH AMENDMENT PROHIBITS THE
USE OF ROVING PATROLS TO SEARCH VEHICLES, WITHOUT A WARRANT OR PROBABLE
CAUSE, AT POINTS REMOVED FROM THE BORDER AND ITS FUNCTIONAL
EQUIVALENTS.  THE COURT OF APPEALS, SITTING EN BANC, HELD THAT THE STOP
IN THIS CASE MORE CLOSELY RESEMBLED A ROVING-PATROL STOP THAN A STOP AT
A TRAFFIC CHECKPOINT, AND APPLIED THE PRINCIPLES OF ALMEIDA-SANCHEZ. 
/1/  THE COURT HELD THAT THE FOURTH AMENDMENT, AS INTERPRETED IN
ALMEIDA-SANCHEZ, FORBIDS STOPPING A VEHICLE, EVEN FOR THE LIMITED
PURPOSE OF QUESTIONING ITS OCCUPANTS, UNLESS THE OFFICERS HAVE A
"FOUNDED SUSPICION" THAT THE OCCUPANTS ARE ALIENS ILLEGALLY IN THE
COUNTRY.  THE COURT REFUSED TO FIND THAT MEXICAN ANCESTRY ALONE
SUPPORTED SUCH A "FOUNDED SUSPICION" AND HELD THAT RESPONDENT'S MOTION
TO SUPPRESS SHOULD HAVE BEEN GRANTED.  /2/ 499 F.2D 1109 (1974).  WE
GRANTED CERTIORARI AND SET THE CASE FOR ORAL ARGUMENT WITH NO. 73 -
2050, UNITED STATES V. ORTIZ, POST, P. 891, AND NO. 73 - 6848, BOWEN V.
UNITED STATES, POST, P. 916.  419 U. S. 824 (1974). 

THE GOVERNMENT DOES NOT CHALLENGE THE COURT OF APPEALS' FACTUAL
CONCLUSION THAT THE STOP OF RESPONDENT'S CAR WAS A ROVING-PATROL STOP
RATHER THAN A CHECKPOINT STOP.  BRIEF FOR UNITED STATES 8.  NOR DOES IT
CHALLENGE THE RETROACTIVE APPLICATION OF ALMEIDA-SANCHEZ, SUPRA, BRIEF
FOR UNITED STATES 9, OR CONTEND THAT THE SAN CLEMENTE CHECKPOINT IS THE
FUNCTIONAL EQUIVALENT OF THE BORDER.  THE ONLY ISSUE PRESENTED FOR
DECISION IS WHETHER A ROVING PATROL MAY STOP A VEHICLE IN AN AREA NEAR
THE BORDER AND QUESTION ITS OCCUPANTS WHEN THE ONLY GROUND FOR
SUSPICION IS THAT THE OCCUPANTS APPEAR TO BE OF MEXICAN ANCESTRY.  FOR
THE REASONS THAT FOLLOW, WE AFFIRM THE DECISION OF THE COURT OF
APPEALS. 

II 

THE GOVERNMENT CLAIMS TWO SOURCES OF STATUTORY AUTHORITY FOR
STOPPING CARS WITHOUT WARRANTS IN THE BORDER AREAS.  SECTION 287 (A)(1)
OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. 1357 (A)(1),
AUTHORIZES ANY OFFICER OR EMPLOYEE OF THE IMMIGRATION AND
NATURALIZATION SERVICE (INS) WITHOUT A WARRANT, "TO INTERROGATE ANY
ALIEN OR PERSON BELIEVED TO BE AN ALIEN AS TO HIS RIGHT TO BE OR TO
REMAIN IN THE UNITED STATES."  THERE IS NO GEOGRAPHICAL LIMITATION ON
THIS AUTHORITY.  THE GOVERNMENT CONTENDS THAT, AT LEAST IN THE AREAS
APPARENT MEXICAN ANCESTRY ALONE JUSTIFIES BELIEF THAT HE OR SHE IS AN
ALIEN AND SATISFIES THE REQUIREMENT OF THIS STATUTE.  SECTION 287 (A)
(3) OF THE ACT, 8 U.S.C. 1357 (A)(3), AUTHORIZES AGENTS, WITHOUT A
WARRANT, 

"WITHIN A REASONABLE DISTANCE FROM ANY EXTERNAL BOUNDARY OF THE
UNITED STATES, TO BOARD AND SEARCH FOR ALIENS ANY VESSEL WITHIN THE
TERRITORIAL WATERS OF THE UNITED STATES AND ANY RAILWAY CAR, AIRCRAFT,
CONVEYANCE, OR VEHICLE.  . . ."  UNDER CURRENT REGULATIONS, THIS
AUTHORITY MAY BE EXERCISED ANYWHERE WITHIN 100 MILES OF THE BORDER.  8
CFR 287.1 (A) (1975).  THE BORDER PATROL INTERPRETS THE STATUTE AS
GRANTING AUTHORITY TO STOP MOVING VEHICLES AND QUESTION THE OCCUPANTS
ABOUT THEIR CITIZENSHIP, EVEN WHEN ITS OFFICERS HAVE NO REASON TO
BELIEVE THAT THE OCCUPANTS ARE ALIENS OR THAT OTHER ALIENS MAY BE
CONCEALED IN THE VEHICLE.  /3/ BUT "NO ACT OF CONGRESS CAN AUTHORIZE A
VIOLATION OF THE CONSTITUTION,"  ALMEIDA-SANCHEZ, SUPRA, AT 272, AND WE
MUST DECIDE WHETHER THE FOURTH AMENDMENT ALLOWS SUCH RANDOM VEHICLE
STOPS IN THE BORDER AREAS. 

        III 

THE FOURTH AMENDMENT APPLIES TO ALL SEIZURES OF THE PERSON,
INCLUDING SEIZURES THAT INVOLVE ONLY A BRIEF DETENTION SHORT OF
TRADITIONAL ARREST.  DAVIS V. MISSISSIPPI, 394 U. S. 721 (1969); TERRY
V. OHIO, 392 U. S. 1, 16 - 19 (1968).  "(WHENEVER A POLICE OFFICER
ACCOSTS AN INDIVIDUAL AND RESTRAINS HIS FREEDOM TO WALK AWAY, HE HAS
'SEIZED' THAT PERSON," TERRY V. OHIO, SUPRA, AT 16, AND THE FOURTH
AMENDMENT REQUIRES THAT THE SEIZURE BE "REASONABLE."  AS WITH OTHER
CATEGORIES OF POLICE ACTION SUBJECT TO FOURTH AMENDMENT CONSTRAINTS,
THE REASONABLENESS OF SUCH SEIZURES DEPENDS ON A BALANCE BETWEEN THE
PUBLIC INTEREST AND THE INDIVIDUAL'S RIGHT TO PERSONAL SECURITY FREE
FROM ARBITRARY INTERFERENCE BY LAW OFFICERS.  TERRY V. OHIO, SUPRA, AT
20 - 21; CAMARA V. MUNICIPAL COURT, 387 U.S. 523, 536 - 537 (1967). 

THE GOVERNMENT MAKES A CONVINCING DEMONSTRATION THAT THE PUBLIC
INTEREST DEMANDS EFFECTIVE MEASURES TO PREVENT THE ILLEGAL ENTRY OF
ALIENS AT THE MEXICAN BORDER.  ESTIMATES OF THE NUMBER OF ILLEGAL
IMMIGRANTS IN THE UNITED STATES VARY WIDELY.  A CONSERVATIVE ESTIMATE
IN 1972 PRODUCED A FIGURE OF ABOUT ONE MILLION, BUT THE IMMIGRATION AND
NATURALIZATION SERVICE NOW SUGGESTS THERE MAY BE AS MANY AS 10 OR 12
MILLION ALIENS ILLEGALLY IN THE COUNTRY.  /4/ WHATEVER THE NUMBER,
THESE ALIENS CREATE SIGNIFICANT ECONOMIC AND SOCIAL PROBLEMS, COMPETING
WITH CITIZENS AND LEGAL RESIDENT ALIENS FOR JOBS AND GENERATING EXTRA
DEMAND FOR SOCIAL SERVICES.  THE ALIENS THEMSELVES ARE VULNERABLE TO
EXPLOITATION BECAUSE THEY CANNOT COMPLAIN OF SUBSTANDARD WORKING
CONDITIONS WITHOUT RISKING DEPORTATION.  SEE GENERALLY HEARINGS ON II
LEGAL ALIENS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 92D CONG., 1ST AND 2D SESS., SER.  13, PTS.  1 - 5 (1971 -
1972). 

THE GOVERNMENT HAS ESTIMATED THAT 85% OF THE ALIENS ILLEGALLY IN THE
COUNTRY ARE FROM MEXICO.  UNITED STATES V. BACA, 368 F. SUPP. 398, 402
(SD CAL. 1973).  /5/ THE MEXICAN BORDER IS ALMOST 2,000 MILES LONG, AND
EVEN A VASTLY REINFORCED BORDER PATROL WOULD FIND IT IMPOSSIBLE TO
PREVENT ILLEGAL BORDER CROSSINGS.  MANY ALIENS CROSS THE MEXICAN BORDER
ON FOOT, MILES AWAY FROM PATROLLED AREAS, AND THEN PURCHASE
TRANSPORTATION FROM THE BORDER AREA TO INLAND CITIES, WHERE THEY FIND
JOBS AND ELUDE THE IMMIGRATION AUTHORITIES.  OTHERS GAIN ENTRY ON VALID
TEMPORARY BORDER-CROSSING PERMITS, BUT THEN VIOLATE THE CONDITIONS OF
THEIR ENTRY.  MOST OF THESE ALIENS LEAVE THE BORDER AREA IN PRIVATE
VEHICLES, OFTEN ASSISTED BY PROFESSIONAL "ALIEN SMUGGLERS."  THE BORDER
PATROL'S TRAFFIC CHECKING OPERATIONS ARE DESIGNED TO PREVENT THIS
INLAND MOVEMENT.  THEY SUCCEED IN APPREHENDING SOME ILLEGAL ENTRANTS
AND SMUGGLERS, AND THEY DETER THE MOVEMENT OF OTHERS BY THREATENING
APPREHENSION AND INCREASING THE COST OF ILLEGAL TRANSPORTATION. 

AGAINST THIS VALID PUBLIC INTEREST WE MUST WEIGH THE INTERFERENCE
WITH INDIVIDUAL LIBERTY THAT RESULTS WHEN AN OFFICER STOPS AN
AUTOMOBILE AND QUESTIONS ITS OCCUPANTS.  THE INTRUSION IS MODEST.  THE
GOVERNMENT TELLS US THAT A STOP BY A ROVING PATROL "USUALLY CONSUMES NO
MORE THAN A MINUTE."  BRIEF FOR UNITED STATES 25.  THERE IS NO SEARCH
OF THE VEHICLE OR ITS OCCUPANTS, AND THE VISUAL INSPECTION IS LIMITED
TO THOSE PARTS OF THE VEHICLE THAT CAN BE SEEN BY ANYONE STANDING
ALONGSIDE.  /6/ ACCORDING TO THE GOVERNMENT, "(ALL THAT IS REQUIRED OF
THE VEHICLE'S OCCUPANTS IS A RESPONSE TO A BRIEF QUESTION OR TWO AND
POSSIBLY THE PRODUCTION OF A DOCUMENT EVIDENCING A RIGHT TO BE IN THE
UNITED STATES."  IBID. 

BECAUSE OF THE LIMITED NATURE OF THE INTRUSION, STOPS OF THIS SORT
MAY BE JUSTIFIED ON FACTS THAT DO NOT AMOUNT TO THE PROBABLE CAUSE
REQUIRED FOR AN ARREST.  IN TERRY V. OHIO, SUPRA, THE COURT DECLINED
EXPRESSLY TO DECIDE WHETHER FACTS NOT AMOUNTING TO PROBABLE CAUSE COULD
JUSTIFY AN "INVESTIGATIVE 'SEIZURE'" SHORT OF AN ARREST, 392 U. S., AT
19 N. 16, BUT IT APPROVED A LIMITED SEARCH--A PAT-DOWN FOR WEAPONS--FOR
THE PROTECTION OF AN OFFICER INVESTIGATING SUSPICIOUS BEHAVIOR OF
PERSONS HE REASONABLY BELIEVED TO BE ARMED AND DANGEROUS.  THE COURT
APPROVED SUCH A SEARCH ON FACTS THAT DID NOT CONSTITUTE PROBABLE CAUSE
TO BELIEVE THE SUSPECTS GUILTY OF A CRIME, REQUIRING ONLY THAT "THE
POLICE OFFICER.  . . BE ABLE TO POINT TO SPECIFIC AND ARTICULABLE FACTS
WHICH, TAKEN TOGETHER WITH RATIONAL INFERENCES FROM THOSE FACTS,
REASONABLY WARRANT" A BELIEF THAT HIS SAFETY OR THAT OF OTHERS IS IN
DANGER.  ID., AT 21; SEE ID., AT 27. 

WE ELABORATED ON TERRY IN ADAMS V. WILLIAMS, 407 U. S. 143 (1972),
HOLDING THAT A POLICEMAN WAS JUSTIFIED IN APPROACHING THE RESPONDENT TO
INVESTIGATE A TIP THAT HE WAS CARRING NARCOTICS AND A GUN. 

"THE FOURTH AMENDMENT DOES NOT REQUIRE A POLICEMAN WHO LACKS THE
PRECISE LEVEL OF INFORMATION NECESSARY FOR PROBABLE CAUSE TO ARREST TO
SIMPLY SHRUG HIS SHOULDERS AND ALLOW A CRIME TO OCCUR OR A CRIMINAL TO
ESCAPE.  ON THE CONTRARY, TERRY RECOGNIZES THAT IT MAY BE THE ESSENCE
OF GOOD POLICE WORK TO ADOPT AN INTERMEDIATE RESPONSE.... A BRIEF STOP
OF A SUSPICIOUS INDIVIDUAL, IN ORDER TO DETERMINE HIS IDENTITY OR TO
MAINTAIN THE STATUS QUO MEMENTARILY WHILE OBTAINING MORE INFORMATION,
MAY BE MOST REASONABLE IN LIGHT OF THE FACTS KNOWN TO THE OFFICER AT
THE TIME."  ID., AT 145 - 146. 

THESE CASES TOGETHER ESTABLISH THAT IN APPROPRIATE CIRCUMSTANCES THE
FOURTH AMENDMENT ALLOWS A PROPERLY LIMITED "SEARCH" OR "SEIZURE" ON
FACTS THAT DO NOT CONSTITUTE PROBABLE CAUSE TO ARREST OR TO SEARCH FOR
CONTRABAND OR EVIDENCE OF CRIME.  IN BOTH TERRY AND ADAMS V. WILLIAMS
THE INVESTIGATING OFFICERS HAD REASONABLE GROUNDS TO BELIEVE THAT THE
SUSPECTS WERE ARMED AND THAT THEY MIGHT BE DANGEROUS.  THE LIMITED
SEARCHES AND SEIZURES IN THOSE CASES WERE A VALID METHOD OF PROTECTING
THE PUBLIC AND PREVENTING CRIME.  IN THIS CASE AS WELL, BECAUSE OF THE
IMPORTANCE OF THE GOVERNMENTAL INTEREST AT STAKE, THE MINIMAL INTRUSION
OF A BRIEF STOP, AND THE ABSENCE OF PRACTICAL ALTERNATIVES FOR POLICING
THE BORDER, WE HOLD THAT WHEN AN OFFICER'S OBSERVATIONS LEAD HIM
REASONABLY TO SUSPECT THAT A PARTICULAR VEHICLE MAY CONTAIN ALIENS WHO
ARE ILLEGALLY IN THE COUNTRY, HE MAY STOP THE CAR BRIEFLY AND
INVESTIGATE THE CIRCUMSTANCES THAT PROVOKE SUSPICION.  AS IN TERRY, THE
STOP AND INQUIRY MUST BE "REASONABLY RELATED IN SCOPE TO THE
JUSTIFICATION FOR THEIR INITIATION."  392 U. S., AT 29.  THE OFFICER
MAY QUESTION THE DRIVER AND PASSENGERS ABOUT THER CITIZENSHIP AND
IMMIGRATION STATUS, AND HE MAY ASK THEM TO EXPLAIN SUSPICIOUS
CIRCUMSTANCES, BUT ANY FURTHER DETENTION OR SEARCH MUST BE BASED ON
CONSENT OR PROBABLE CAUSE. 

WE ARE UNWILLING TO LET THE BORDER PATROL DISPENSE ENTIRELY WITH THE
REQUIREMENT THAT OFFICERS MUST HAVE A REASONABLE SUSPICION TO JUSTIFY
ROVING PATROL STOPS.  /7/ IN THE CONTEXT OF BORDER AREA STOPS, THE
REASONABLENESS REQUIREMENT OF THE FOURTH AMENDMENT DEMANDS SOMETHING
MORE THAN THE BROAD AND UNLIMITED DISCRETION SOUGHT BY THE GOVERNMENT. 
ROADS NEAR THE BORDER CARRY NOT ONLY ALIENS SEEKING TO ENTER THE
COUNTRY ILLEGALLY, BUT A LARGE VOLUME OF LEGITIMATE TRAFFIC AS WELL. 
SAN DIEGO, WITH A METROPOLITAN POPULATION OF 1.4 MILLION, IS LOCATED ON
THE BORDER.  TEXAS HAS TWO FAIRLY LARGE METROPOLITAN AREAS DIRECTLY ON
THE BORDER:  EL PASO, WITH A POPULATION OF 360,000, AND THE BROWNSVILLE
-MCALLEN AREA, WITH A COMBINED POPULATION OF 320,000.  WE ARE CONFIDENT
THAT SUBSTANTIALLY ALL OF THE TRAFFIC IN THESE CITIES IS LAWFUL AND THA
RELATIVELY FEW OF THEIR RESIDENTS HAVE ANY CONNECTION WITH THE ILLEGAL
ENTRY AND TRANSPORTATION OF ALIENS.  TO APPROVE ROVING-PATROL STOPS OF
ALL VEHICLES IN THE BORDER AREA, WITHOUT ANY SUSPICION THAT A
PARTICULAR VEHICLE IS CARRYING ILLEGAL IMMIGRANTS, WOULD SUBJECT THE
RESIDENTS OF THESE AND OTHER AREAS TO POTENTIALLY UNLIMITED
INTERFERENCE WITH THEIR USE OF THE HIGHWAYS, SOLELY AT THE DISCRETION
OF BORDER PATROL OFFICERS.  THE ONLY FORMAL LIMITATION ON THAT
DISCRETION APPEARS TO BE THE ADMINISTRATIVE REGULATION DEFINING THE
TERM "REASONABLE DISTANCE" IN 287 (A)(3) TO MEAN WITHIN 100 AIR MILES
FROM THE BORDER.  8 CFR 287.1 (A) (1975).  THUS, IF WE APPROVED THE
GOVERNMENT'S POSITION IN THIS CASE, BORDER PATROL OFFICERS COULD STOP
MOTORISTS AT RANDOM FOR QUESTIONING, DAY OR NIGHT, ANYWHERE WITHIN 100
AIR MILES OF THE 2,000-MILE BORDER, ON A CITY STREET, A BUSY HIGHWAY,
OR A DESERT ROAD, WITHOUT ANY REASON TO SUSPECT THAT THEY HAVE VIOLATED
ANY LAW.     WE ARE NOT CONVINCED THAT THE LEGITIMATE NEEDS OF LAW
ENFORCEMENT REQUIRE THIS DEGREE OF INTERFERENCE WITH LAWFUL TRAFFIC. 
AS WE DISCUSS IN PART IV, INFRA, THE NATURE OF ILLEGAL ALIEN TRAFFIC
AND THE CHARACTERISTICS OF SMUGGLING OPERATIONS TEND TO GENERATE
ARTICULABLE GROUNDS FOR IDENTIFYING VIOLATORS.  CONSEQUENTLY, A
REQUIREMENT OF REASONABLE SUSPICION FOR STOPS ALLOWS THE GOVERNMENT
ADEQUATE MEANS OF GUARDING THE PUBLIC INTEREST AND ALSO PROTECTS
RESIDENTS OF THE BORDER AREAS FROM INDISCRIMINATE OFFICIAL
INTERFERENCE.  UNDER THE CIRCUMSTANCES, AND EVEN THOUGH THE INTRUSION
INCIDENT TO A STOP IS MODEST, WE CONCLUDE THAT IT IS NOT "REASONABLE"
UNDER THE FOURTH AMENDMENT TO MAKE SUCH STOPS ON A RANDOM BASIS.  /8/ 

THE GOVERNMENT ALSO CONTENDS THAT THE PUBLIC INTEREST IN ENFORCING
CONDITIONS ON LEGAL ALIEN ENTRY JUSTIFIES STOPPING PERSONS WHO MAY BE
ALIENS FOR QUESTIONING ABOUT THEIR CITIZENSHIP AND IMMIGRATION STATUS. 
ALTHOUGH WE MAY ASSUME FOR PURPOSES OF THIS CASE THAT THE BROAD
CONGRESSIONAL POWER OVER IMMIGRATION, SEE KLEINDIENST V. MANDEL, 408 U.
S. 753, 765 - 767 (1972), AUTHORIZES CONGRESS TO ADMIT ALIENS ON
CONDITION THAT THEY WILL SUBMIT TO REASONABLE QUESTIONING ABOUT THEIR
RIGHT TO BE AND REMAIN IN THE COUNTRY, THIS POWER CANNOT DIMINISH THE
FOURTH AMENDMENT RIGHTS OF CITIZENS WHO MAY BE MISTAKEN FOR ALIENS. 
FOR THE SAME REASON THAT THE FOURTH AMENDMENT FORBIDS STOPPING VEHICLES
AT RANDOM TO INQUIRE IF THEY ARE CARRYING ALIENS WHO ARE ILLEGALLY IN
THE COUNTRY, IT ALSO FORBIDS STOPPING OR DETAINING PERSONS FOR
QUESTIONING ABOUT THEIR CITIZENSHIP ON LESS THAN A REASONABLE SUSPICION
THAT THEY MAY BE ALIENS. 

        IV 

THE EFFECT OF OUR DECISION IS TO LIMIT EXERCISE OF THE AUTHORITY
GRANTED BY BOTH 287 (A)(1) AND 287 (A)(3).  EXCEPT AT THE BORDER AND
ITS FUNCTIONAL EQUIVALENTS, OFFICERS ON ROVING PATROL MAY STOP VEHICLES
ONLY IF THEY ARE AWARE OF SPECIFIC ARTICULABLE FACTS, TOGETHER WITH
RATIONAL INFERENCES FROM THOSE FACTS, THAT REASONABLY WARRANT SUSPICION
THAT THE VEHICLES CONTAIN ALIENS WHO MAY BE ILLEGALLY IN THE COUNTRY. 
/9/ 

ANY NUMBER OF FACTORS MAY BE TAKEN INTO ACCOUNT IN DECIDING WHETHER
THERE IS REASONABLE SUSPICION TO STOP A CAR IN THE BORDER AREA. 
OFFICERS MAY CONSIDER THE CHARACTERISTICS OF THE AREA IN WHICH THEY
ENCOUNTER A VEHICLE.  ITS PROXIMITY TO THE BORDER, THE USUAL PATTERNS
OF TRAFFIC ON THE PARTICULAR ROAD, AND PREVIOUS EXPERIENCE WITH ALIEN
TRAFFIC ARE ALL RELEVANT.  SEE CARROLL V. UNITED STATES, 267 U. S. 132,
159 - 161 (1925); UNITED STATES V. JAIME-BARRIOS, 494 F.2D 455 (CA9),
CERT. DENIED, 417 U. S. 972 (1974).  /10/ THEY ALSO MAY CONSIDER
INFORMATION ABOUT RECENT ILLEGAL BORDER CROSSINGS IN THE AREA.  THE
DRIVER'S BEHAVIOR MAY BE RELEVANT, AS ERRATIC DRIVING OR OBVIOUS
ATTEMPTS TO EVADE OFFICERS CAN SUPPORT A REASONABLE SUSPICION.  SEE
UNITED STATES V. LARIOS-MONTES, 500 F.2D 941 (CA9 1974); DUPREZ V.
UNITED STATES, 435 F.2D 1276 (CA9 1970).  ASPECTS OF THE VEHICLE ITSELF
MAY JUSTIFY SUSPICION.  FOR INSTANCE, OFFICERS SAY THAT CERTAIN STATION
WAGONS, WITH LARGE COMPARTMENTS FOR FOLD-DOWN SEATS OR SPARE TIRES, ARE
FREQUENTLY USED FOR TRANSPORTING CONCEALED ALIENS.  SEE UNITED STATES
V. BUGARIN-CASAS, 484 F.2D 853 (CA9 1973), CERT. DENIED, 414 U.S. 1136
(1974); UNITED STATES V. WRIGHT, 476 F.2D 1027 (CA5 1973).  THE VEHICLE
MAY APPEAR TO BE HEAVILY LOADED, IT MAY HAVE AN EXTRAORDINARY NUMBER OF
PASSENGERS, OR THE OFFICERS MAY OBSERVE PERSONS TRYING TO HIDE.  SEE
UNITED STATES V. LARIOS-MONTES, SUPRA.  THE GOVERNMENT ALSO POINTS OUT
THAT TRAINED OFFICERS CAN RECOGNIZE THE CHARACTERISTIC APPEARANCE OF
PERSONS WHO LIVE IN MEXICO, RELYING ON SUCH FACTORS AS THE MODE OF
DRESS AND HAIRCUT.  REPLY BRIEF FOR UNITED STATES 12 - 13, IN UNITED
STATES V. ORTIZ, POST, P. 891.  IN ALL SITUATIONS THE OFFICER IS
ENTITLED TO ASSESS THE FACTS IN LIGHT OF HIS EXPERIENCE IN DETECTING
ILLEGAL ENTRY AND SMUGGLING.  TERRY V. OHIO, 392 U.S., AT 27. 

IN THIS CASE THE OFFICERS RELIED ON A SINGLE FACTOR TO JUSTIFY
STOPPING RESPONDENT'S CAR:  THE APPARENT MEXICAN ANCESTRY OF THE
OCCUPANTS.  /11/  WE CANNOT CONCLUDE THAT THIS FURNISHED REASONABLE
GROUNDS TO BELIEVE THAT THE THREE OCCUPANTS WERE ALIENS.  AT BEST THE
OFFICERS HAD ONLY A FLEETING GLIMPSE OF THE PERSONS IN THE MOVING CAR,
ILLUMINATED BY HEADLIGHTS.  EVEN IF THEY SAW ENOUGH TO THINK THAT THE
OCCUPANTS WERE OF MEXICAN DESCENT, THIS FACTOR ALONE WOULD JUSTIFY
NEITHER A REASONABLE BELIEF THAT THEY WERE ALIENS, NOR A REASONABLE
BELIEF THAT THE CAR CONCEALED OTHER ALIENS WHO WERE ILLEGALLY IN THE
COUNTRY.  LARGE NUMBERS OF NATIVE-BORN AND NATURALIZED CITIZENS HAVE
THE PHYSICAL CHARACTERISTICS IDENTIFIED WITH MEXICAN ANCESTRY, AND EVEN
IN THE BORDER AREA A RELATIVELY SMALL PROPORTION OF THEM ARE ALIENS. 
/12/ THE LIKELIHOOD THAT ANY GIVEN PERSON OF MEXICAN ANCESTRY IS AN
ALIEN IS HIGH ENOUGH TO MAKE MEXICAN APPEARANCE A RELEVANT FACTOR, BUT
STANDING ALONE IT DOES NOT JUSTIFY STOPPING ALL MEXICAN-AMERICANS TO
ASK IF THEY ARE ALIENS. 

THE JUDGMENT OF THE COURT OF APPEALS IS

                                  AFFIRMED. 

(FOR OPINION OF THE CHIEF JUSTICE CONCURRING IN THE JUDGMENT, SEE
POST, P. 899.) 

(FOR OPINION OF MR. JUSTICE WHITE CONCURRING IN THE JUDGMENT, SEE
POST, P. 914.) 

/1/ FOR THE COURT OF APPEALS' PURPOSES, THE DISTINCTION BETWEEN A
ROVING PATROL AND A FIXED CHECKPOINT WAS CONTROLLING.  THE COURT
PREVIOUSLY HAD HELD THAT THE PRINCIPLES OF ALMEIDA-SANCHEZ V. UNITED
STATES, 413 U.S. 266 (1973), APPLIED RETROSPECTIVELY TO THE ACTIVITIES
OF ROVING PATROLS BUT NOT TO THOSE OF FIXED CHECKPOINTS.  SEE UNITED
STATES V. PELTIER, 500 F.2D 985 (CA9 1974), REV'D, ANTE, P. 531; UNITED
STATES V. BOWEN, 500 F.2D 960 (CA9 1974), AFF'D, POST, P. 916. 

/2/ THERE MAY BE ROOM TO QUESTION WHETHER VOLUNTARY TESTIMONY OF A
WITNESS AT TRIAL, AS OPPOSED TO A GOVERNMENT AGENT'S TESTIMONY ABOUT
OBJECTS SEIZED OR STATEMENTS OVERHEARD, IS SUBJECT TO SUPPRESSION AS
THE FRUIT OF AN ILLEGAL SEARCH OR SEIZURE.  SEE UNITED STATES V. GUANA-
SANCHEZ, 484 F.2D 590 (CA7 1973), CERTIORARI DISMISSED AS IMPROVIDENTLY
GRANTED, 420 U.S. 513 (1975).  BUT SINCE THE QUESTION WAS NOT RAISED IN
THE PETITION FOR CERTIORARI, WE DO NOT ADDRESS IT. 

/3/ WE CANNOT ACCEPT RESPONDENT'S CONTENTION THAT, EVEN THOUGH 287
(A)(3) DOES NOT MENTION PROBABLE CAUSE, ITS LEGISLATIVE HISTORY
ESTABLISHES THAT CONGRESS MEANT TO CONDITION IMMIGRATION OFFICERS'
AUTHORITY TO BOARD AND SEARCH VEHICLES ON PROBABLE CAUSE TO BELIEVE
THAT THEY CONTAINED ALIENS.  THE LEGISLATIVE HISTORY SIMPLY DOES NOT
SUPPORT THIS CONTENTION. 

/4/ THE ESTIMATE OF ONE MILLION WAS PRODUCED BY THE COMMISSIONER OF
THE INS FOR THE IMMIGRATION AND NATIONALITY SUBCOMMITTEE OF THE HOUSE
JUDICIARY COMMITTEE.  HEARINGS ON ILLEGAL ALIENS BEFORE SUBCOMMITTEE
NO. 1 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 92D CONG., 2D SESS.,
SER.  13, PT. 5, PP. 1323 - 1325 (1972).  THE HIGHER ESTIMATE APPEARS
IN THE INS ANN. REP. III (1974). 

/5/ THIS ESTIMATE TENDS TO BE CONFIRMED BY THE CONSISTENTLY HIGH
PROPORTION OF MEXICAN NATIONALS IN THE NUMBER OF DEPORTABLE ALIENS
ARRESTED EACH YEAR.  IN 1970, FOR EXAMPLE, 80% OF THE DEPORTABLE ALIENS
ARRESTED WERE FROM MEXICO.  SEE INS ANN. REP. 95 (1970).  IN 1974, THE
FIGURE WAS 92%.  INS ANN. REP. 94 (1974). 

/6/ IN THIS CASE THE OFFICERS DID SEARCH RESPONDENT'S CAR, BUT
BECAUSE THEY FOUND NO OTHER INCRIMINATING EVIDENCE THE VALIDITY OF THE
SEARCH IS NOT IN ISSUE.  ALMEIDA-SANCHEZ CHANGED THE BORDER PATROL'S
PRACTICE OF SEARCHING CARS ON ROUTINE STOPS, AND THE GOVERNMENT INFORMS
US THAT ROVING PATROLS NOW SEARCH VEHICLES ONLY WHEN THEY HAVE PROBABLE
CAUSE TO BELIEVE THEY WILL FIND ILLEGALLY PRESENT ALIENS OR
CONTRABAND.  BRIEF FOR UNITED STATES 25. 

/7/ BECAUSE THE STOP IN THIS CASE WAS MADE WITHOUT A WARRANT AND THE
OFFICERS MADE NO EFFORT TO OBTAIN ONE, WE HAVE NO OCCASION TO DECIDE
WHETHER A WARRANT COULD BE ISSUED TO STOP CARS IN A DESIGNATED AREA ON
THE BASIS OF CONDITIONS IN THE AREA AS A WHOLE AND IN THE ABSENCE OF
REASON TO SUSPECT THAT ANY PARTICULAR CAR IS CARRYING ALIENS.  SEE
ALMEIDA-SANCHEZ.  413 U. S., AT 275 (POWELL, J., CONCURRING); CAMARA V.
MUNICIPAL COURT, 387 U. S. 523 (1967). 

/8/ OUR DECISION IN THIS CASE TAKES INTO ACCOUNT THE SPECIAL
FUNCTION OF THE BORDER PATROL, THE IMPORTANCE OF THE GOVERNMENTAL
INTERESTS IN POLICING THE BORDER AREA, THE CHARACTER OF ROVING-PATROL
STOPS, AND THE AVAILABILITY OF ALTERNATIVES TO RANDOM STOPS UNSUPPORTED
BY REASONABLE SUSPICION.  BORDER PATROL AGENTS HAVE NO PART IN
ENFORCING LAWS THAT REGULATE HIGHWAY USE, AND THEIR ACTIVITIES HAVE
NOTHING TO DO WITH AN INQUIRY WHETHER MOTORISTS AND THEIR VEHICLES ARE
ENTITLED, BY VIRTUE OF COMPLIANCE WITH LAWS GOVERNING HIGHWAY USAGE, TO
BE UPON THE PUBLIC HIGHWAYS.  OUR DECISION THUS DOES NOT IMPLY THAT
STATE AND LOCAL ENFORCEMENT AGENCIES ARE WITHOUT POWER TO CONDUCT SUCH
LIMITED STOPS AS ARE NECESSARY TO ENFORCE LAWS REGARDING DRIVERS'
LICENSES, VEHICLE REGISTRATION, TRUCK WEIGHTS, AND SIMILAR MATTERS. 

/9/ AS NOTED ABOVE, WE RESERVE THE QUESTION WHETHER BORDER PATROL
OFFICERS ALSO MAY STOP PERSONS REASONABLY BELIEVED TO BE ALIENS WHEN
THERE IS NO REASON TO BELIEVE THEY ARE ILLEGALLY IN THE COUNTRY.  SEE
CHEUNG TIN WONG V. INS, 152 U.S. APP. D.C. 66, 468 F.2D 1123 (1972); AU
YI LAU V. INS, 144 U.S. APP. D. C. 147, 445 F.2D 217, CERT. DENIED, 404
U. S. 864 (1971).  THEFACTS OF THIS CASE DO NOT REQUIRE DECISION ON THE
POINT. 

/10/ THE COURTS OF APPEALS DECISIONS CITED THROUGHOUT THIS PART ARE
MERELY ILLUSTRATIVE.  OUR CITATION OF THEM DOES NOT IMPLY A VIEW OF THE
MERITS OF PARTICULAR DECISIONS.  EACH CASE MUST TURN ON THE TOTALITY OF
THE PARTICULAR CIRCUMSTANCES. 

/11/ THE GOVERNMENT ALSO ARGUES THAT THE LOCATION OF THIS STOP
SHOULD BE CONSIDERED IN DECIDING WHETHER THE OFFICERS HAD ADEQUATE
REASON TO STOP RESPONDENT'S CAR.  THIS APPEARS, HOWEVER, TO BE AN AFTER
THE-FACT JUSTIFICATION.  AT TRIAL THE OFFICERS GAVE NO REASON FOR THE
STOP EXCEPT THE APPARENT MEXICAN ANCESTRY OF THE CAR'S OCCUPANTS.  IT
IS NOT EVEN CLEAR THAT THE GOVERNMENT PRESENTED THE BROADER
JUSTIFICATION TO THE COURT OF APPEALS.  WE THEREFORE DECLINE AT THIS
STAGE OF THE CASE TO GIVE ANY WEIGHT TO THE LOCATION OF THE STOP. 

/12/ THE 1970 CENSUS AND THE INS FIGURES FOR ALIEN REGISTRATION IN
1970 PROVIDE THE FOLLOWING INFORMATION ABOUT THE MEXICAN-AMERICAN
POPULATION IN THE BORDER STATES.  THERE WERE 1,619,064 PERSONS OF
MEXICAN ORIGIN IN TEXAS, AND 200,004 (OR 12.4%) OF THEM REGISTERED AS
ALIENS FROM MEXICO.  IN NEW MEXICO THERE WERE 119,049 PERSONS OF
MEXICAN ORIGIN, AND 10,171 (OR 8.5%) REGISTERED AS ALIENS.  IN ARIZONA
THERE WERE 239,811 PERSONS OF MEXICAN ORIGIN, AND 34,075 (OR 14.2%)
REGISTERED AS ALIENS.  IN CALIFORNIA THERE WERE 1,857,267 PERSONS OF
MEXICAN ORIGIN, AND 379,951 (OR 20.4%) REGISTERED AS ALIENS.  BUREAU OF
THE CENSUS, SUBJECT REPORT PC (2) - 1C:  PERSONS OF SPANISH ORIGIN 2
(1970); INS ANN. REP. 105 (1970).  THESE FIGURES, OF COURSE, DO NOT
PRESENT THE ENTIRE PICTURE.  THE NUMBER OF REGISTERED ALIENS FROM
MEXICO HAS INCREASED SINCE 1970, INS ANN. REP. 105 (1974), AND WE
ASSUME THAT VERY FEW ILLEGAL IMMIGRANTS APPEAR IN THE REGISTRATION
FIGURES.  ON THE OTHER HAND, MANY OF THE 950,000 OTHER PERSONS OF
SPANISH ORIGIN LIVING IN THESE BORDER STATES, SEE BUREAU OF THE CENSUS,
SUPRA, AT 1, MAY HAVE A PHYSICAL APPEARANCE SIMILAR TO PERSONS OF
MEXICAN ORIGIN. 

MR. JUSTICE REHNQUIST, CONCURRING. 

I JOIN IN THE OPINION OF THE COURT.  I THINK IT QUITE IMPORTANT TO
POINT OUT, HOWEVER, THAT THAT OPINION, WHICH IS JOINED BY A SOMEWHAT
DIFFERENT MAJORITY THAN THAT WHICH COMPRISED THE ALMEIDA-SANCHEZ COURT,
IS BOTH BY ITS TERMS AND BY ITS REASONING CONCERNED ONLY WITH THE TYPE
OF STOP INVOLVED IN THIS CASE.  I THINK THAT JUST AS TRAVELERS ENTERING
THE COUNTRY MAY BE STOPPED AND SEARCHED WITHOUT PROBABLE CAUSE AND
WITHOUT FOUNDED SUSPICION, BECAUSE OF "NATIONAL SELF PROTECTION
REASONABLY REQUIRING ONE ENTERING THE COUNTRY TO IDENTIFY HIMSELF AS
ENTITLED TO COME IN, AND HIS BELONGINGS AS EFFECTS WHICH MAY BE
LAWFULLY BROUGHT IN," CARROLL V. UNITED STATES, 267 U.S. 132, 154
(1925), A STRONG CASE MAY BE MADE FOR THOSE CHARGED WITH THE
ENFORCEMENT OF LAWS CONDITIONING THE RIGHT OF VEHICULAR USE OF A
HIGHWAY TO LIKEWISE STOP MOTORISTS USING HIGHWAYS IN ORDER TO DETERMINE
WHETHER THEY HAVE MET THE QUALIFICATIONS PRESCRIBED BY APPLICABLE LAW
FOR SUCH USE.  SEE CADY V. DOMBROWSKI, 413 U.S. 433, 440 - 441 (1973);
UNITED STATES V. BISWELL, 406 U.S. 311 (1972).  I REGARD THESE AND
SIMILAR SITUATIONS, SUCH AS AGRICULTURAL INSPECTIONS AND HIGHWAY
ROADBLOCKS TO APPREHEND KNOWN FUGITIVES, AS NOT IN ANY WAY
CONSTITUTIONALLY SUPECT BY REASON OF TODAY'S DECISION. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE JUDGMENT. 

I JOIN IN THE AFFIRMANCE OF THE JUDGMENT.  THE STOPPING OF
RESPONDENT'S AUTOMOBILE SOLELY BECAUSE ITS OCCUPANTS APPEARED TO BE OF
MEXICAN ANCESTRY WAS A PATENT VIOLATION OF THE FOURTH AMENDMENT.  I
CANNOT AGREE, HOWEVER, WITH THE STANDARD THE COURT ADOPTS TO MEASURE
THE LAWFULNESS OF THE OFFICERS' ACTION.  THE COURT EXTENDS THE
"SUSPICION" TEST OF TERRY V. OHIO, 392 U.S. 1 (1968), TO THE STOP OF A
MOVING AUTOMOBILE.  I DISSENTED FROM THE ADOPTION OF THE SUSPICION TEST
IN TERRY, BELIEVING IT AN UNJUSTIFIED WEAKENING OF THE FOURTH
AMENDMENT'S PROTECTION OF CITIZENS FROM ARBITRARY INTERFERENCE BY THE
POLICE.  I REMARKED THEN: 

     "THE INFRINGEMENT ON PERSONAL LIBERTY OF ANY 'SEIZURE' OF A

  PERSON CAN ONLY BE 'REASONABLE' UNDER THE FOURTH AMENDMENT IF WE

  REQUIRE THE POLICE TO POSSESS 'PROBABLE CAUSE' BEFORE THEY SEIZE

  HIM.  ONLY THAT LINE DRAWS A MEANINGFUL DISTINCTION BETWEEN AN

  OFFICER'S MERE INKLING AND THE PRESENCE OF FACTS WITHIN THE

OFFICER'S PERSONAL KNOWLEDGE WHICH WOULD CONVINCE A REASONABLE

  MAN THAT THE PERSON SEIZED HAS COMMITTED, IS COMMITTING, OR IS

  ABOUT TO COMMIT A PARTICULAR CRIME."  TERRY V. OHIO, SUPRA, AT

  38. 

THE FEARS I VOICED IN TERRY ABOUT THE WEAKENING OF THE FOURTH
AMENDMENT HAVE REGRETTABLY BEEN BORNE OUT BY SUBSEQUENT EVENTS.  HOPES
THAT THE SUSPICION TEST MIGHT BE EMPLOYED ONLY IN THE PURSUIT OF
VIOLENT CRIME--A LIMITATION ENDORSED BY SOME OF ITS PROPONENTS /1/  -
HAVE NOW BEEN DASHED, AS IT HAS BEEN APPLIED IN NARCOTICS
INVESTIGATIONS, IN APPREHENSION OF "ILLEGAL" ALIENS, AND INDEED HAS
COME TO BE VIEWED AS A LEGAL CONSTRUCT FOR THE REGULATION OF A GENERAL
INVESTIGATORY POLICE POWER.  THE SUSPICION TESR HAS BEEN WARMLY
EMBRACED BY LAW ENFORCEMENT FORCES AND VIGOROUSLY EMPLOYED IN THE CAUSE
OF CRIME DETECTION.  IN CRIMINAL CASES WE SEE THOSE FOR WHOM THE
INITIAL INTRUSION LED TO THE DISCOVERY OF SOME WRONGDOING.  BUT THE
NATURE OF THE TEST PERMITS THE POLICE TO INTERFERE AS WELL WITH A
MULTITUDE OF LAW-ABIDING CITIZENS, WHOSE ONLY TRANSGRESSION MAY BE A
NONCONFORMIST APPEARANCE OR ATTITUDE.  AS ONE COMMENTATOR HAS
REMARKED: 

"'POLICE POWER EXERCISED WITHOUT PROBABLE CAUSE IS ARBITRARY.  TO
SAY THAT THE POLICE MAY ACCOST CITIZENS AT THEIR WHIM AND MAY DETAIN
THEM UPON REASONABLE SUSPICION IS TO SAY, IN REALITY, THAT THE POLICE
MAY BOTH ACCOST AND DETAIN CITIZENS AT THEIR WHIM.'"  AMSTERDAM,
PERSPECTIVES ON THE FOURTH AMENDMENT, 58 MINN. L. REV. 349, 395
(1974). 

THE USES TO WHICH THE SUSPICION TEST HAS BEEN PUT ARE ILLUSTRATED IN
SOME OF THE CASES CITED IN THE COURT'S OPINION.  IN UNITED STATES V.
WRIGHT, 476 F.2D 1027 (CA5 1973), FOR EXAMPLE, IMMIGRATION OFFICERS
STOPPED A STATION WAGON NEAR THE BORDER BECAUSE THERE WAS A SPARE TIRE
IN THE BACK SEAT.  THE COURT HELD THAT THE OFFICERS REASONABLY
SUSPECTED THAT THE SPARE WHEEL WELL HAD BEEN FREED IN ORDER TO
FACILITATE THE CONCEALMENT OF ALIENS.  IN UNITED STATES V. BUGARIN
CASAS, 484 F.2D 853 (CA9 1973), THE BORDER PATROL OFFICERS ENCOUNTERED
A MAN DRIVING ALONE IN A STATION WAGON WHICH WAS "RIDING LOW"; STOPPING
THE CAR WAS HELD REASONABLE BECAUSE THE OFFICERS SUSPECTED THAT ALIENS
MIGHT HAVE BEEN HIDDEN BENEATH THE FLOORBOARDS.  THE VACATIONER WHOSE
CAR IS WEIGHTED DOWN WITH LUGGAGE WILL FIND NO COMFORT IN THESE
DECISIONS; NOR WILL THE MANY LAW-ABIDING CITIZENS WHO DRIVE OLDER
VEHICLES THAT RIDE LOW BECAUSE THEIR SUSPENSION SYSTEMS ARE OLD OR IN
DISREPAIR.  THE SUPSPICION TEST HAD INDEED BROUGHT A STATE OF AFFAIRS
WHERE THE POLICE MAY STOP CITIZENS ON THE HIGHWAY ON THE FLIMSIEST OF
JUSTIFICATIONS. 

THE COURT DOES, TO BE SURE, DISCLAIM APPROVAL OF THE PARTICULAR
DECISIONS IT CITES APPLYING THE SUSPICION TEST.  BUT BY SPECIFYING
FACTORS TO BE CONSIDERED WITHOUT ATTEMPTING TO EXPLAIN WHAT COMBINATION
IS NECESSARY TO SATISFY THE TEST, THE COURT MAY ACTUALLY INDUCE THE
POLICE TO PUSH ITS LANGUAGE BEYOND INTENDED LIMITS AND TO ADVANCE AS A
JUSTIFICATION ANY OF THE ENUMERATED FACTORS EVEN WHERE ITS PROBATIVE
SIGNIFICANCE IS NEGLIGIBLE. 

ULTIMATELY THE DEGREE TO WHICH THE SUSPICION TEST ACTUALLY RESTRAINS
THE POLICE WILL DEPEND MORE UPON WHAT THE COURT DOES HENCEFORTH THAN
UPON WHAT IT SAYS TODAY.  IF MY BRETHREN MEAN TO GIVE THE SUSPICION
TEST A NEW BITE, I APPLAUD THE INTENTION.  BUT IN VIEW OF THE
DEVELOPMENTS SINCE THE TEST WAS LAUNCHED IN TERRY, I AM NOT
OPTIMISTIC.  THIS IS THE FIRST DECISION TO INVALIDATE A STOP ON THE
BASIS OF THE BASIS OF THE SUSPICION STANDARD.  IN FACT, SINCE TERRY WE
HAVE GRANTED REVIEW OF A CASE APPLYING THE TEST ONLY ONCE, IN ADAMS V.
WILLIAMS, 407 U. S. 143 (1972), WHERE THE COURT FOUND THE STANDARD
SATISFIED BY THE TIP FROM AN INFORMANT WHOSE CREDIBILITY WAS NOT
ESTABLISHED AND WHOSE INFORMATION WAS NOT SHOWN TO BE BASED UPON
PERSONAL KNOWLEDGE.  IF IN THE FUTURE THE SUSPICION TEST IS TO PROVIDE
ANY MEANINGFUL RESTRAINT OF THE POLICE, ITS FORCE MUST COME FROM
VIGOROUS REVIEW OF ITS APPLICATIONS, AND NOT ALONE FROM THE QUALIFYING
LANGUAGE OF TODAY'S OPINION.  FOR NOW, I REMAIN UNCONVINCED THAT THE
SUSPICION TEST OFFERS SIGNIFICANT PROTECTION OF THE "COMPREHENSIVE
RIGHT OF PERSONAL LIBERTY IN THE FACE OF GOVERNMENTAL INTRUSION," LOPEZ
V. UNITED STATES, 373 U.S. 427, 455 (1963) (DISSENTING OPINION), THAT
IS EMBODIED IN THE FOURTH AMENDMENT. 

/1/ SEE LAFAVE, "STREET ENCOUNTERS" AND THE CONSTITUTION, 67 MICH.
L.REV.  39, 65 - 66 (1968). 

DEPUTY SOLICITOR GENERAL FREY ARGUED THE CAUSE FOR THE UNITED
STATES.  ON THE BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY
GENERAL PETERSEN, ACTING ASSISTANT ATTORNEY GENERAL KEENEY, MARK L.
EVANS, PETER M. SHANNON, JR., AND JEROME M. FEIT. 

JOHN J. CLEARY, BY APPOINTMENT OF THE COURT, 419 U.S. 1017, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS CHARLES M.
SEVILLA. 

SANFORD JAY ROSEN FILED A BRIEF FOR THE MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :












UNITED STATES V. ORTIZ, 422 U.S. 891 


       UNITED STATES V. ORTIZ

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 73 - 2050.  ARGUED FEBRUARY 18, 1975 - DECIDED JUNE 30,

        1975; AFFIRMED. 


    THE FOURTH AMENDMENT HELD TO FORBID BORDER PATROL OFFICERS, IN

  THE ABSENCE OF CONSENT OR PROBABLE CAUSE, TO SEARCH PRIVATE

  VEHICLES AT TRAFFIC CHECKPOINTS REMOVED FROM THE BORDER AND ITS

  ITS FUNCTIONAL EQUIVALENTS, AND FOR THIS PURPOSE THERE IS NO

  DIFFERENCE BETWEEN A CHECKPOINT AND A ROVING PATROL.  ALMEIDA

  -SANCHEZ V. UNITED STATES, 413 U.S. 266, FOLLOWED.  PP. 892 -

  898. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, STEWART, MARSHALL, AND REHNQUIST, JJ., JOINED. 

  REHNQUIST, J., FILED A CONCURRING OPINION, POST, P. 898.  BURGER,

  C. J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH

  BLACKMUN, J., JOINED, POST, P. 899.  WHITE, J., FILED AN OPINION

  CONCURRING IN THE JUDGMENT, IN WHICH BLACKMUN, J., JOINED, POST,

  P. 914. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

BORDER PATROL OFFICERS STOPPED RESPONDENT'S CAR FOR A ROUTINE
IMMIGRATION SEARCH AT THE TRAFFIC CHECKPOINT ON INTERSTATE HIGHWAY 5 AT
SAN CLEMENTE, CAL., ON NOVEMBER 12, 1973.  THEY FOUND THREE ALIENS
CONCEALED IN THE TRUNK, AND RESPONDENT WAS CONVICTED ON THREE COUNTS OF
KNOWINGLY TRANSPORTING ALIENS WHO WERE IN THE COUNTRY ILLEGALLY.  THE
COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED THE CONVICTION IN AN
UNREPORTED OPINION, RELYING ON DICTUM IN ITS OPINION IN UNITED STATES
V. BOWEN, 500 F.2D 960 (CA9 1974), AFF'D, POST, P. 916, TO THE EFFECT
THAT OUR DECISION IN ALMEIDA-SANCHEZ V. UNITED STATES, 413 U.S. 266
(1973), REQUIRED PROBABLE CAUSE FOR ALL VEHICLE SEARCHES IN THE BORDER
AREA, WHETHER CONDUCTED BY ROVING PATROLS OR AT TRAFFIC CHECKPOINTS. 
WE GRANTED CERTIORARI.  419 U.S. 824 (1974). 

NOTHING IN THIS RECORD SUGGESTS THAT THE BORDER PATROL OFFICERS HAD
ANY SPECIAL REASON TO SUSPECT THAT RESPONDENT'S CAR WAS CARRYING
CONCEALED ALIENS.  NOR DOES THE GOVERNMENT CONTEND THAT THE SAN
CLEMENTE CHECKPOINT IS A FUNCTIONAL EQUIVALENT OF THE BORDER.  BRIEF
FOR UNITED STATES 16.  THE ONLY QUESTION FOR DECISION IS WHETHER
VEHICLE SEARCHES AT TRAFFIC CHECKPOINTS, LIKE THE ROVING-PATROL SEARCH
IN ALMEIDA-SANCHEZ, MUST BE BASED ON PROBABLE CAUSE. 

        3 

IN ALMEIDA-SANCHEZ WE REJECTED THE GOVERNMENT'S CONTENTION THAT THE
NATION'S STRONG INTEREST IN CONTROLLING IMMIGRATION AND THE PRACTICAL
DIFFICULTIES OF POLICING THE MEXICAN BORDER COMBINED TO JUSTIFY
DISPENSING WITH BOTH WARRANT AND PROBABLE CAUSE FOR VEHICLE SEARCHES BY
ROVING PATROLS NEAR THE BORDER.  THE FACTS DID NOT REQUIRE US TO DECIDE
WHETHER THE SAME RULE WOULD APPLY TO TRAFFIC CHECKPOINTS, WHICH DIFFER
FROM ROVING PATROLS IN SEVERAL IMPORTANT RESPECTS.  413 U.S., AT 273;
ID., AT 276 (POWELL, J., CONCURRING). 

A CONSOLIDATED PROCEEDING ON MOTIONS TO SUPPRESS IN THIS AND SIMILAR
CASES PRODUCED AN EXTENSIVE FACTUAL RECORD ON THE OPERATION OF TRAFFIC
CHECKPOINTS IN SOUTHERN CALIFORNIA.  UNITED STATES V. BACA, 368 F.
SUPP. 398 (SD CAL. 1973).  THE SAN CLEMENTE CHECKPOINT IS 62 AIR MILES
AND 66 ROAD MILES NORTH OF THE MEXICAN BORDER.  IT IS ON THE PRINCIPAL
HIGHWAY BETWEEN SAN DIEGO AND LOS ANGELES, AND OVER 10 MILLION VEHICLES
PASS THE CHECKPOINT IN A YEAR.  UNITED STATES V. MARTINEZ-FUERTE, 514
F. 2D 308, 312 (CA9 1975).  THE DISTRICT COURT IN BACA DESCRIBED THE
CHECKPOINT AS FOLLOWS: 

     "APPROXIMATELY ONE MILE SOUTH OF THE CHECKPOINT IS A LARGE

  BLACK ON YELLOW SIGN WITH FLASHING YELLOW LIGHTS OVER THE HIGHWAY

  STATING 'ALL VEHICLES, STOP AHEAD, 1 MILE.'  THREE-QUATERS OF A

  MILE FURTHER NORTH ARE TWO BLACK ON YELLOW SIGNS SUSPENDED OVER

  THE HIGHWAY WITH FLASHING LIGHTS STATING 'WATCH FOR BRAKE

  LIGHTS.'  AT THE CHECKPOINT, WHICH IS ALSO THE LOCATION OF A
STATE

  OF CALIFORNIA WEIGHING STATION, ARE TWO LARGE SIGNS WITH FLASHING

  RED LIGHTS SUSPENDED OVER THE HIGHWAY.  THESE SIGNS EACH STATE

  'STOP HERE--U.S. OFFICERS.'  PLACED ON THE HIGHWAY ARE A NUMBER
OF

  ORANGE TRAFFIC CONES FUNNELING TRAFFIC INTO TWO LANES WHERE A

  BORDER PATROL AGENT IN FULL DRESS UNIFORM, STANDING BEHIND A

  WHITE ON RED 'STOP' SIGN CHECKS TRAFFIC.  BLOCKING TRAFFIC IN THE

  UNUSED LANES ARE OFFICIAL U.S. BORDER PATROL VEHICLES WITH

  FLASHING RED LIGHTS.  IN ADDITION, THERE IS A PERMAMENT BUILDING

  WHICH HOUSES THE BORDER PATROL OFFICE AND TEMPORARY DETENTION

FACILITIES.  THERE ARE ALSO FLOODLIGHTS FOR NIGHTTIME

  OPERATION."  368 F. SUPP., AT 410 - 411. 

THE BORDER PATROL WOULD PREFER TO KEEP THIS CHECKPOINT IN OPERATION
CONTINUOUSLY, BUT BAD WEATHER, HEAVY TRAFFIC, AND PERSONNEL SHORTAGES
KEEP IT CLOSED ABOUT ONE-THIRD OF THE TIME.  WHEN IT IS OPEN, OFFICERS
SCREEN ALL NORTHBOUND TRAFFIC.  IF ANYTHING ABOUT A VEHICLE OR ITS
OCCUPANTS LEADS AN OFFICER TO SUSPECT THAT IT MAY BE CARRYING ALIENS,
HE WILL STOP THE CAR AND ASK THE OCCUPANTS ABOUT THEIR CITIZENSHIP.  IF
THE OFFICER'S SUSPICION PERSISTS, OR IF THE QUESTIONING ENHANCES IT, HE
WILL "INSPECT" PORTIONS OF THE CAR IN WHICH AN ALIEN MIGHT HIDE.  /1/
OPERATIONS AT OTHER CHECKPOINTS ARE SIMILAR, ALTHOUGH THE TRAFFIC AT
SOME IS LIGHT ENOUGH THAT OFFICERS CAN STOP ALL VEHICLES FOR
QUESTIONING AND ROUTINELY INSPECT MORE OF THEM. 

THE GOVERNMENT MAINTAINS THAT THESE CHARACTERISTICS JUSTIFY
DISPENSING WITH PROBABLE CAUSE AT TRAFFIC CHECKPOINTS DESPITE THE
COURT'S HOLDING IN ALMEIDA-SANCHEZ.  IT GIVES ESSENTIALLY TWO REASONS
FOR DISTINGUISHING THAT CASE.  FIRST, A CHECKPOINT OFFICER'S DISCRETION
IN DECIDING WHICH CARS TO SEARCH IS LIMITED BY THE LOCATION OF THE
CHECKPOINT.  THAT LOCATION IS DETERMINED BY HIGH-LEVEL BORDER PATROL
OFFICIALS, USING CRITERIA THAT INCLUDE THE DEGREE OF INCONVENIENCE TO
THE PUBLIC AND THE POTENTIAL FOR SAFE OPERATION, AS WELL AS THE
POTENTIAL FOR DETECTING AND DETERRING THE ILLEGAL MOVEMENT OF ALIENS. 
BY CONTRAST, OFFICERS ON ROVING PATROL WERE THEORETICALLY FREE BEFORE
ALMEIDA-SANCHEZ TO STOP AND SEARCH ANY CAR WITHIN 100 MILES OF THE
BORDER.  SECOND, THE CIRCUMSTANCES SURROUNDING A CHECKPOINT STOP AND
SEARCH ARE FAR LESS INTRUSIVE THAN THOSE ATTENDING A ROVING-PATROL
STOP.  ROVING PATROLS OFTEN OPERATE AT NIGHT ON SELDOM-TRAVELED ROADS,
AND THEIR APPROACH MAY FRIGHTEN MOTORISTS.  AT TRAFFIC CHECKPOINTS THE
MOTORIST CAN SEE THAT OTHER VEHICLES ARE BEING STOPPED, HE CAN SEE
VISIBLE SIGNS OF THE OFFICERS' AUTHORITY, AND HE IS MUCH LESS LIKELY TO
BE FRIGHTENED OR ANNOYED BY THE INTRUSION. 

THESE DIFFERENCES ARE RELEVANT TO THE CONSTITUTIONAL ISSUE, SINCE
THE CENTRAL CONCERN OF THE FOURTH AMENDMENT IS TO PROTECT LIBERTY AND
PRIVACY FROM ARBITRARY AND OPPRESSIVE INTERFERENCE BY GOVERNMENT
OFFICIALS.  CAMARA V. MUNICIPAL COURT, 387 U.S. 523, 528 (1967);
SCHMERBER V. CALIFORNIA, 384 U.S. 757, 767 (1966).  THE FOURTH
AMENDMENT'S REQUIREMENT THAT SEARCHES AND SEIZURES BE REASONABLE ALSO
MAY LIMIT POLICE USE OF UNNECESSARILY FRIGHTENING OR OFFENSIVE METHODS
OF SURVEILLANCE AND INVESTIGATION.  SEE, E. G., TERRY V. OHIO, 392 U.
S. 1, 16 - 17 (1968); CAMARA, SUPRA, AT 531; SCHMERBER, SUPRA, AT 771 -
772.  WHILE THE DIFFERENCES BETWEEN A ROVING PATROL AND A CHECKPOINT
WOULD BE SIGNIFICANT IN DETERMINING THE PROPRIETY OF THE STOP, WHICH IS
CONSIDERABLY LESS INTRUSIVE THAN A SEARCH, TERRY V. OHIO, SUPRA, THEY
DO NOT APPEAR TO MAKE ANY DIFFERENCE IN THE SEARCH ITSELF.  THE GREATER
REGULARITY ATTENDING THE STOP DOES NOT MITIGATE THE INVASION OF PRIVACY
THAT A SEARCH ENTAILS.  NOR DO CHECKPOINT PROCEDURES SIGNIFICANTLY
REDUCE THE LIKELIHOOD OF EMBARRASSMENT.  MOTORISTS WHOSE CARS ARE
SEARCHED, UNLIKE THOSE WHO ARE ONLY QUESTIONED, MAY NOT BE REASSURED BY
SEEING THAT THE BORDER PATROL SEARCHES OTHER CARS AS WELL.  WHERE ONLY
A FEW ARE SINGLED OUT FOR A SEARCH, AS AT SAN CLEMENTE, MOTORISTS MAY
FIND THE SEARCHES ESPECIALLY OFFENSIVE.  SEE NOTE, BORDER SEARCHES AND
THE FOURTH AMENDMENT, 77 YALE L. J. 1007, 1012 - 1013 (1968). 

MOREOVER, WE ARE NOT PERSUADED THAT THE CHECKPOINT LIMITS TO ANY
MEANINGFUL EXTENT THE OFFICER'S DISCRETION TO SELECT CARS FOR SEARCH. 
THE RECORD IN THE CONSOLIDATED PROCEEDING INDICATES THAT ONLY ABOUT 3%
OF THE CARS THAT PASS THE SAN CLEMENTE CHECKPOINT ARE STOPPED FOR
EITHER QUESTIONING OR A SEARCH, 368 F. SUPP., AT 411.  THROUGHOUT THE
SYSTEM, FEWER THAN 3, OF THE VEHICLES THAT PASSED THROUGH CHECKPOINTS
IN 1974 WERE SEARCHED, BRIEF FOR UNITED STATES 29, AND NO CHECKPOINT
INVOLVED IN BACA REPORTED A SEARCH RATE OF MORE THAN 10, OR 15%.  368
F. SUPP., AT 412 - 415.  IT IS APPARENT FROM THESE FIGURES THAT
CHECKPOINT OFFICERS EXERCISE A SUBSTANTIAL DEGREE OF DISCRETION IN
DECIDING WHICH CARS TO SEARCH.  THE GOVERNMENT MAINTAINS THAT THEY
VOLUNTARILY EXERCISE THAT DISCRETION WITH RESTRAINT AND SEARCH ONLY
VEHICLES THAT AROUSE THEIR SUSPICION, AND IT INSISTS THE OFFICERS
SHOULD BE FREE OF JUDICIAL OVERSIGHT OF ANY KIND.  VIEWED
REALISTICALLY, THIS POSITION WOULD AUTHORIZE THE BORDER PATROL TO
SEARCH VEHICLES AT RANDOM, FOR NO OFFICER EVER WOULD HAVE TO JUSTIFY
HIS DECISION TO SEARCH A PARTICULAR CAR. 

THIS DEGREE OF DISCRETION TO SEARCH PRIVATE AUTOMOBILES IS NOT
CONSISTENT WITH THE FOURTH AMENDMENT.  A SEARCH, EVEN OF AN AUTOMOBILE,
IS A SUBSTANTIAL INVASION OF PRIVACY.  /2/ TO PROTECT THAT PRIVACY FROM
OFFICIAL ARBITRARINESS, THE COURT ALWAYS HAS REGARDED PROBABLE CAUSE AS
THE MINIMUM REQUIREMENT FOR A LAWFUL SEARCH.  ALMEIDA-SANCHEZ, 413
U.S., AT 269 - 270; CHAMBERS V. MARONEY, 399 U.S. 42, 51 (1970).  WE
ARE NOT PERSUADED THAT THE DIFFERENCES BETWEEN ROVING PATROLS AND
TRAFFIC CHECKPOINTS JUSTIFY DISPENSING IN THIS CASE WITH THE SAFEGUARDS
WE REQUIRED IN ALMEIDA-SANCHEZ.  WE THEREFORE FOLLOW THAT DECISION AND
HOLD THAT AT TRAFFIC CHECKPOINTS REMOVED FROM THE BORDER AND ITS
FUNCTIONAL EQUIVALENTS, OFFICERS MAY NOT SEARCH PRIVATE VEHICLES
WITHOUT CONSENT OR PROBABLE CAUSE.  /3/ 

THE GOVERNMENT LISTS IN ITS REPLY BRIEF SOME OF THE FACTORS ON WHICH
OFFICERS HAVE RELIED IN DECIDING WHICH CARS TO SEARCH.  THEY INCLUDE
THE NUMBER OF PERSONS IN A VEHICLE, THE APPEARANCE AND BEHAVIOR OF THE
DRIVER AND PASSENGERS, THEIR INABILITY TO SPEAK ENGLISH, THE RESPONSES
THEY GIVE TO OFFICERS' QUESTIONS, THE NATURE OF THE VEHICLE, AND
INDICATIONS THAT IT MAY BE HEAVILY LOADED.  ALL OF THESE FACTORS
PROPERLY MAY BE TAKEN INTO ACCOUNT IN DECIDING WHETHER THERE IS
PROBABLE CAUSE TO SEARCH A PARTICULAR VEHICLE.  IN ADDITION, AS WE NOTE
TODAY IN UNITED STATES V. BRIGNONI-PONCE, ANTE, AT 884 - 885, THE
OFFICERS ARE ENTITLED TO DRAW REASONABLE INFERENCES FROM THESE FACTS IN
LIGHT OF THEIR KNOWLEDGE OF THE AREA AND THEIR PRIOR EXPERIENCE WITH
ALIENS AND SMUGGLERS.  IN THIS CASE, HOWEVER, THE OFFICERS ADVANCED NO
SPECIAL REASONS FOR BELIEVING RESPONDENT'S VEHICLE CONTAINED ALIENS. 
THE ABSENCE OF PROBABLE CAUSE MAKES THE SEARCH INVALID. 

        II 

THE GOVERNMENT ALSO CONTENDS THAT EVEN IF ALMEIDA-SANCHEZ APPLIES TO
CHECKPOINT SEARCHES, THE COURT OF APPEALS ERRED IN VOIDING THIS SEARCH
BECAUSE IT OCCURRED AFTER THE DATE OF DECISION IN ALMEIDA-SANCHEZ BUT
BEFORE THE COURT OF APPEALS STATED IN UNITED STATES V. BOWEN, SUPRA,
THAT IT WOULD REQUIRE PROBABLE CAUSE FOR CHECKPOINT SEARCHES. 
EXAMINATION OF THE GOVERNMENT'S BRIEF IN THE NINTH CIRCUIT INDICATES
THAT IT DID NOT RAISE THIS QUESTION BELOW.  ON THE CONTRARY, IT
REPRESENTED TO THE COURT THAT THE DECISION IN BOWEN WOULD BE
"DETERMINATIVE OF THE ISSUES IN THIS CASE."  WE THEREFORE DECLINE TO
CONSIDER THIS ISSUE, WHICH WAS RAISED FOR THE FIRST TIME IN THE
PETITION FOR CERTIORARI. 

                  AFFIRMED. 

/1/ SUCH PLACES TYPICALLY INCLUDE THE TRUNK, UNDER THE HOOD, AND
BENEATH THE CHASSIS.  IF THE VEHICLE IS A TRUCK, A CAMPER, OR THE LIKE,
THE OFFICER INSPECTS THE ENCLOSED PORTION AS WELL.  BUT AN IMMIGRATION
INSPECTION IS NOT ALWAYS SO CONFINED.  IN ALMEIDA-SANCHEZ V. UNITED
STATES, 413 U.S. 266 (1973), THE OFFICER REMOVED THE BACK SEAT CUSHION
BECAUSE THERE WERE REPORTS THAT ALIENS HAD BEEN FOUND SEATED UPRIGHT
BEHIND SEATS FROM WHICH THE SPRINGS HAD BEEN REMOVED.  ID., AT 286
(WHITE, J., DISSENTING). 

/2/ THE DEGREE OF THE INVASION OF PRIVACY IN AN AUTOMOBILE SEARCH
MAY VARY WITH THE CIRCUMSTANCES, AS THERE ARE SIGNIFICANT DIFFERENCES
BETWEEN "AN AUTOMOBILE AND A HOME OR OFFICE."  CHAMBERS V. MARONEY, 399
U.S. 42, 48 (1970); ALMEIDA-SANCHEZ V. UNITED STATES, 413 U.S., AT 279
(POWELL, J., CONCURRING). 

/3/ NOT EVERY ASPECT OF A ROUTINE AUTOMOBILE "INSPECTION," AS
DESCRIBED IN N. 1, SUPRA, NECESSARILY CONSTITUTES A "SEARCH" FOR
PURPOSES OF THE FOURTH AMENDMENT.  THERE IS NO OCCASION IN THIS CASE TO
DEFINE THE EXACT PARAMETERS OF AN AUTOMOBILE "SEARCH." 

NOR DO WE HAVE OCCASION TO DECIDE WHETHER A WARRANT COULD ISSUE
APPROVING CHECKPOINT SEARCHES BASED ON INFORMATION ABOUT THE AREA AS A
WHOLE, IN THE ABSENCE OF CAUSE TO BELIEVE THAT A PARTICULAR CAR IS
CARRYING CONCEALED ALIENS, BECAUSE THE OFFICERS HAD NO SUCH WARRANT IN
THIS CASE AND HAD NOT TRIED TO OBTAIN ONE.  SEE ALMEIDA-SANCHEZ V.
UNITED STATES, SUPRA, AT 275 (POWELL, J., CONCURRING); CAMARA V.
MUNICIPAL COURT, 387 U.S. 523 (1967).  WE ALSO NEED NOT DECIDE WHETHER
CHECKPOINTS AND ROVING PATROLS MUST BE TREATED THE SAME FOR ALL
PURPOSES, OR WHETHER BORDER PATROL OFFICERS MAY LAWFULLY STOP MOTORISTS
FOR QUESTIONING AT AN ESTABLISHED CHECKPOINT WITHOUT REASON TO BELIEVE
THAT A PARTICULAR VEHICLE IS CARRYING ALIENS.  CF. UNITED STATES V.
BRIGNONI-PONCE, ANTE, P. 873.  NOR DO WE SUGGEST THAT PROBABLE CAUSE
WOULD BE REQUIRED FOR ALL INSPECTIONS OF PRIVATE MOTOR VEHICLES.  IT IS
QUITE POSSIBLE, FOR EXAMPLE, THAT DIFFERENT CONSIDERATIONS WOULD APPLY
TO ROUTINE SAFETY INSPECTIONS REQUIRED AS A CONDITION OF ROAD USE. 

MR. JUSTICE REHNQUIST, CONCURRING. 

I JOINED THE DISSENT OF MY BROTHER WHITE IN ALMEIDA-SANCHEZ V.UNITED
STATES, 413 U.S. 266 (1973), AND RECOGNIZE THAT THE PRESENT DECISION IS
AN EXTENSION OF THE UNSOUND RULE ANNOUNCED IN THAT CASE.  I NONETHELESS
JOIN THE OPINION OF THE COURT, BECAUSE A MAJORITY OF THE COURT STILL
ADHERES TO ALMEIDA-SANCHEZ AND BECAUSE I AGREE WITH THE COURT'S
ANALYSIS OF THE SIGNIFICANCE OF THE GOVERNMENT'S PROFFERED DISTINCTIONS
BETWEEN ROVING AND FIXED-CHECKPOINT SEARCHES.     I WISH TO STRESS,
HOWEVER, THAT THE COURT'S OPINION IS CONFINED TO FULL SEARCHES, AND
DOES NOT EXTEND TO FIXED-CHECKPOINT STOPS FOR THE PURPOSE OF INQUIRING
ABOUT CITIZENSHIP.  SUCH STOPS INVOLVE ONLY A MODEST INTRUSION, ARE NOT
LIKELY TO BE FRIGHTENING OR SIGNIFICANTLY ANNOYING, ARE REGULARIZED BY
THE FIXED SITUS, AND EFFECTIVELY SERVE THE IMPORTANT NATIONAL INTEREST
IN CONTROLLING ILLEGAL ENTRY.  899 I DO NOT REGARD SUCH STOPS AS
UNREASONABLE UNDER THE FOURTH AMENDMENT, WHETHER OR NOT ACCOMPANIED BY
"REASONABLE SUSPICION" THAT A PARTICULAR VEHICLE IS INVOLVED IN
IMMIGRATION VIOLATIONS, CF. UNITED STATES V. BRIGNONI-PONCE, ANTE, P.
873, AND I DO NOT UNDERSTAND TODAY'S OPINION TO CAST DOUBT UPON THEIR
CONSTITUTIONALITY. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN JOINS,
CONCURRING IN THE JUDGMENT.  /3/ 

LIKE MR. JUSTICE WHITE I CAN, AT MOST, DO NO MORE THAN CONCUR IN THE
JUDGMENT.  AS THE FOURTH AMENDMENT NOW HAS BEEN INTERPRETED BY THE
COURT IT SEEMS THAT THE IMMIGRATION AND NATURALIZATION SERVICE IS
POWERLESS TO STOP THE TIDE OF ILLEGAL ALIENS--AND DANGEROUSS DRUGS--
THAT DAILY AND FREELY CROSSES OUR 2,000-MILE SOUTHERN BOUNDARY.  /1/
PERHAPS THESE DECISIONS WILL BE SEEN IN PERSPECTIVE AS BUT ANOTHER
EXAMPLE OF A SOCIETY SEEMINGLY IMPOTENT TO DEAL WITH MASSIVE
LAWLESSNESS.  IN THAT SENSE HISTORY MAY VIEW US AS PRISONERS OF OUR OWN
TRADITIONAL AND APPROPRIATE CONCERN FOR INDIVIDUAL RIGHTS, UNABLE--OR
UNWILLING--TO APPLY THE CONCEPT OF REASONABLENESS EXPLICIT IN THE
FOURTH AMENDMENT IN ORDER TO DEVELOP A RATIONAL ACCOMMODATION BETWEEN
THOSE RIGHTS AND THE LITERAL SAFETY OF THE COUNTRY. 

GIVEN TODAY'S DECISIONS IT WOULD APPEAR THAT, ABSENT LEGISLATIVE
ACTION, NOTHING LESS THAN A MASSIVE FOCE OF GUARDS COULD ADEQUATELY
PROTECT OUR SOUTHERN BORDER.  /2/ TO ESTABLISH HUNDREDS OF CHECKPOINTS
WITH ENLARGED BORDER FORCES SO AS TO STOP LITERALLY EVERY CAR AND
PEDESTRIAN AT EVERY BORDER CHECKPOINT, HOWEVER, WOULD DOUBTLESS IMPEDE
THE FLOW OF COMMERCE AND TRAVEL BETWEEN THIS COUNTRY AND MEXICO. 
MOREOVER, IT IS UNCERTAIN WHETHER STRINGENT PENALITIES FOR EMPLOYMENT
OF ILLEGAL ALIENS, AND RIGID REQUIREMENTS FOR PROOF OF LEGAL ENTRY
BEFORE EMPLOYMENT, WOULD HELP SOLVE THE PROBLEMS, BUT THOSE REMEDIES
HAVE NOT BEEN TRIED. 

I WOULD HOPE THAT WHEN WE NEXT DEAL WITH THIS PROBLEM WE GIVE
GREATER WEIGHT TO THE REALITY THAT THE FOURTH AMENDMENT PROHIBITS ONLY
"UNREASONABLE SEARCHES AND SEIZURES" AND TO THE FREQUENT ADMONITION
THAT REASONABLENESS MUST TAKE INTO ACCOUNT ALL THE CIRCUMSTANCES AND
BALANCE THE RIGHTS OF THE INDIVIDUAL WITH THE NEEDS OF SOCIETY.  SEE,
E.G., TERRY V. OHIO, 392 U.S. 1 (1968); ELKINS V. UNITED STATES, 364
U.S. 206 (1960); UNITED STATES V. BISWELL, 406 U.S. 311 (1972). 

/3/ (THIS OPINION APPLIES ALSO TO NO. 74 - 114, UNITED STATES V.
BRIGNONI-PONCE, ANTE, P. 873.) 

/1/ THE COURT TODAY RECOGNIZES THAT AS MANY AS 12 MILLION ILLEGAL
ALIENS ARE NOW PRESENT IN THIS COUNTRY.  UNITED STATES V. BRIGNONI
PONCE, ANTE, AT 878 AND N. 4.  SEE ALSO U.S. NEWS & WORLD REPORT, DEC.
9, 1974, P. 77.  BY ALL INDICATIONS THE PROBLEM WILL INCREASE IN THE
FUTURE, NOT ABATE.  UNITED STATES V. BACA, 368 F. SUPP. 398, 402 - 403
(SD CAL. 1973).  IN THE BACA CASE JUDGE TURRENTINE CONDUCTED A THOROUGH
REVIEW OF THE ENTIRE PROBLEM AND THE PRESENT GOVERNMENT RESPONSE. 
APPENDED TO THIS OPINION IS AN EXCERPT FROM JUDGE TURRENTINE'S BACA
OPINION DESCRIBING THE ILLEGAL ALIEN PROBLEM AND THE LAW ENFORCEMENT
RESPONSE. 

/2/ FOR EXAMPLE, TESTIMONY IN THE BACA HEARINGS REVEALED THAT A
COMPLEMENT OF 21,000 OFFICERS WOULD BE NEEDED TO CONTROL ADEQUATELY THE
75 MILES OF BORDER IN THE EL CENTRO SECTOR ALONE. 

        APPENDIX TO OPINION OF BURGER, C.J., CONCURRING IN THE

           JUDGMENT

       EXCERPT FROM JUDGE TURRENTINE'S OPINION IN UNITED STATES V.

           BACA, 368 F. SUPP. 398, 402 - 408 (SD CAL. 1973)

        THE ILLEGAL ALIEN PROBLEM 

THE UNITED STATES THROUGH LEGISLATIVE ACTION HAS DETERMINED THAT IT
IS IN THE BEST INTEREST OF THE NATION TO LIMIT THE NUMBER OF PERSONS
WHO CAN LEGALLY IMMIGRATE INTO THE COUNTRY IN ANY GIVEN YEAR.  THESE
CONTROLS REFLECT IN PART A CONGRESSIONAL INTENT TO PROTECT THE AMERICAN
LABOR MARKET FROM AN INFLUX OF FOREIGN LABOR.  KARNUTH V. UNITED
STATES, 279 U.S. 231... (1929); 201 (A) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 163, AS AMENDED BY THE ACT OF OCTOBER
3, 1965, 79 STAT. 911, 8 U.S.C. 1151 (A). 

UNDER THIS POLICY OF LIMITED ADMISSION, 385,685 NEW IMMIGRANTS
ENTERED THE UNITED STATES LEGALLY DURING FISCAL YEAR 1972.  SINCE JULY
1, 1968, THE LAW HAS ESTABLISHED AN ANNUAL QUOTA OF 120,000 PERSONS FOR
THE INDEPENDENT COUNTRIES OF THE WESTERN HEMISPHERE.  INCLUDED WITHIN
THIS QUOTA ARE IMMIGRANTS FROM THE REPUBLIC OF MEXICO WHO IN FISCAL
YEAR 1972 TOTALLED 64,040.  1972 ANNUAL REPORT, IMMIGRATION AND
NATURALIZATION SERVICE, P. 2, 28. 

CURRENTLY ILLEGAL ALIENS ARE IN RESIDENCE WITHIN THE UNITED STATES
IN NUMBERS WHICH, WHILE NOT SUSEPTIBLE OF EXACT MEASUREMENT, ARE
ESTIMATED TO BE IN THE VICINITY OF 800,000 TO OVER ONE MILLION. 
DEPARTMENT OF JUSTICE, SPECIAL STUDY GROUP ON ILLEGAL IMMIGRANTS FROM
MEXICO, A PROGRAM FOR EFFECTIVE AND HUMANE ACTION ON ILLEGAL MEXICAN
IMMIGRANTS, 6 (1973), (HEREINAFTER CITED AS CRAMTON RPT.). 

OF THESE ILLEGAL ALIENS, APPROXIMATELY 85 PERCENT ARE CITIZENS OF
MEXICO.  CRAMTON RPT.  AT 6.  THEY ARE INDUSTRIOUS, PROUD AND HARD
WORKING PEOPLE WHO ENTER THIS COUNTRY FOR THE PURPOSE OF EARNING WAGES,
ACCUMULATING SAVINGS, AND RETURNING OR SENDING THEIR SAVINGS HOME TO
MEXICO. 

SINCE 1970, THE NUMBER OF ILLEGAL MEXICAN ALIENS IN THE UNITED
STATES WHO HAVE BEEN APPREHENDED HAS BEEN GROWING AT A RATE IN EXCESS
OF 20 PERCENT PER YEAR.  CRAMTON RPT.  AT 6. 

THE INCREASINGLY LARGE NUMBERS OF MEXICAN NATIONALS SEEKING TO
ILLEGALLY ENTER THIS COUNTRY REFLECTS THE SUBSTANTIAL UNEMPLOYMENT AND
UNDEREMPLOYMENT IN MEXICO--FUELED BY ONE OF THE HIGHEST BIRTH RATES IN
THE WORLD.  MOREOVER, MEXICAN EMPLOYMENT STATISTICS ARE NOT LIKELY TO
IMPROVE DRAMATICALLY SINCE FULLY 45 PERCENT OF MEXICO'S POPULATION IS
UNDER 15 YEARS OF AGE AND, THEREFORE, WILL SOON BE ATTEMPTING TO ENTER
THE LABOR MARKET. 

FURTHER PROMPTING MEXICAN NATIONALS TO SEEK EMPLOYMENT IN THE UNITED
STATES IS THE FACT THAT THERE IS A SIGNIFICANT DISPARITY IN WAGE RATES
BETWEEN THIS COUNTRY AND MEXICO.  IN MEXICALI AND TIJUANA, BOTH MEXICAN
CITIES BORDERING THE SOUTHERN DISTRICT AND EACH WITH A POPULATION IN
EXCESS OF 400,000, THE AVERAGE DAILY WAGE IS ABOUT $3.40 PER DAY.  THE
MINIMUM WAGE IS EVEN LOWER FOR WORKERS IN THE INTERIOR OF MEXICO.  THE
AVERAGE WORKER IN MEXICO, ASSUMING HE CAN FIND WORK, EARNS IN A DAY AS
MUCH AS HE CAN MAKE IN ONLY A FEW HOURS IN THE UNITED STATES. 

IN ADDITION, IT IS ESTIMATED THAT THE PER CAPITA INCOME OF THE
POOREST 40 PERCENT OF THE MEXICAN POPULATION, THE STRATA MOST LIKELY TO
LEAVE THEIR HOMELAND IN SEARCH OF EMPLOYMENT IN THE UNITED STATES, IS
LESS THAN $150 PER YEAR. 

THE MANPOWER NEEDS OF THE UNITED STATES GENERATED BY WORLD WAR II
RESULTED IN MANY MEXICANS BEING IMPORTED INTO THIS COUNTRY AND BECOMING
FAMILIAR WITH EMPLOYMENT OPPORTUNITIES AND PRACTICES IN THE UNITED
STATES.  SEE DIAZ V. KAY-DIX RANCH, 9 CAL. APP. 3D 588...(1970). 

THE OPPORTUNITIES AVAILABLE TO MEXICAN ALIENS HAVE TRADITIONALLY
BEEN IN AGRICULTURE.  WHILE STILL TRUE IN MANY PARTS OF THE UNITED
STATES SOUTHWEST, IN RECENT YEARS THE PATTERN HAS CHANGED AND MORE AND
MORE ILLEGAL ALIENS ARE OBTAINING EMPLOYMENT IN THE SERVICE AND
MANUFACTURING SECTORS OF OUR ECONOMY.  THESE ALIENS ARE INCREASINGLY
FOUND IN VIRTUALLY ALL REGIONS OF THE COUNTRY AND IN ALL SEGMENTS OF
THE ECONOMY.  STATE SOCIAL WELFARE BOARD, ISSUE:  ALIENS IN CALIFORNIA,
12 (1973) (HEREINAFTER CITED AS ALIENS IN CALIFORNIA). 

THE NATURE OF THE CHANGE IN EMPLOYMENT OPPORTUNITIES AVAILABLE IS
DEMONSTRATED BY ONE ESTIMATE THAT 250,000 ILLEGAL ALIENS ARE EMPLOYED
IN LOS ANGELES COUNTY WHERE AGRICULTURAL OPPORTUNITIES ARE KNOWN TO BE
LIMITED.  HEARINGS ON ILLEGAL ALIENS BEFORE SUBCOM.  NO. 1 OF THE HOUSE
COMM. ON THE JUDICIARY, 92D CONG., 1ST SESS., PT. 1, AT 208 (1971)
(HEREINAFTER CITED AS HEARINGS ON ILLEGAL ALIENS). 

OTHER ESTIMATES OF THE IMPACT OF ILLEGAL ALIENS IN CALIFORNIA
SUGGEST THAT IN 1971, WHEN 595,000 CALIFORNIANS WERE UNEMPLOYED (7.4
PERCENT OF THE STATE'S LABOR FORCE), THERE WERE BETWEEN 200,000 AND
300,000 ILLEGAL ALIENS EMPLOYED IN CALIFORNIA EARNING APPROXIMATELY
$100 MILLION IN WAGES.  HEARINGS ON ILLEGAL ALIENS AT 150. 

SINCE THE MAJORITY OF MEXICANS ARE UNSKILLED OR LOW SKILLED WORKERS
THEY TEND TO COMPETE WITH MEXICAN-AMERICANS, BLACKS, INDIANS, AND OTHER
MINORITY GROUPS WHO, DUE TO THE DECLINING PERCENTAGE OF JOBS REQUIRING
LOW OR NO SKILLS, ARE FINDING IT INCREASINGLY DIFFICULT TO OBTAIN
GAINFUL EMPLOYMENT.  CRAMTON RPT.  AT 12. 

ILLEGAL ALIENS COMPETE FOR JOBS WITH PERSONS LEGALLY RESIDING IN THE
UNITED STATES WHO ARE UNSKILLED AND UNEDUCATED AND WHO FORM THAT VERY
GROUP WHICH OUR SOCIETY IS TRYING TO PROVIDE WITH A FAIR SHARE OF
AMERICA'S PROSPERITY. 

IN ADDITION, ILLEGAL ALIENS TEND TO PERPETUATE POOR ECONOMIC
CONDITIONS BY FRUSTRATING UNIONIZATION, ESPECIALLY IN SUCH OCCUPATIONS
AS FARM WORK. 

ILLEGAL ALIENS POSE A POTENTIAL HEALTH HAZARD TO THE COMMUNITY SINCE
MANY SEEK WORK AS NURSEMAIDS, FOOD HANDLERS, COOKS, HOUSEKEEPERS,
WAITERS, DISHWASHERS, AND GROCERY WORKERS.  IMMIGRATION AND MEDICAL
OFFICIALS IN LOS ANGELES, FOR EXAMPLE, HAVE DISCOVERED THAT THE ILLEGAL
ALIEN POPULATION IN LOS ANGELES' BARRIO IS INFECTED WITH A HIGH
INCIDENCE OF TYPHOID, DYSENTERY, TUBERCULOSIS, TAPEWORMS, VENEREAL
DISEASE AND HEPATITIS.  L. A. TIMES, SEPT. 16, 1973, PT. II, AT 1. 

IN SOME STATES ILLEGAL ALIENS ABUSE PUBLIC ASSISTANCE PROGRAMS.  IN
SOME INSTANCES ENTIRE FAMILIES WHO ENTERED THE COUNTRY ILLEGALLY HAVE
BEEN ADMITTED TO THE WELFARE ROLLS.  ALIENS IN CALIFORNIA AT 35, 43. 

ANOTHER ASPECT OF THE PROBLEM CREATED BY ILLEGAL ALIENS IS THAT
EMPLOYED ALIENS TEND TO SEND A SUBSTANTIAL PORTION OF THEIR EARNINGS TO
RELATIVES OR FRIENDS IN MEXICO.  THIS OUTFLOW OF UNITED STATES DOLLARS
EXACERBATES OUR BALANCE OF PAYMENTS PROBLEM TO THE EXTENT OF $1 BILLION
A YEAR.  HEARINGS ON ILLEGAL ALIENS, PT. 3 AT 683. 

THE NET EFFECT OF THIS SILENT INVASION OF ILLEGAL ALIENS FROM MEXICO
IS SUFFERING BY THE ALIENS WHO ARE FREQUENTLY VICTIMS OF EXTORTION,
VIOLENCE AND SHARP PRACTICES, DISPLACEMENT OF AMERICAN CITIZENS AND
LEGALLY RESIDING ALIENS FROM THE LABOR MARKET, AND IRRITATION BETWEEN
TWO NEIGHBORING COUNTRIES. 

        THE LAW ENFORCEMENT PROBLEM 

GIVEN THAT ILLEGAL ALIENS ARE A SIGNIFICANT PROBLEM IN AMERICAN
LIFE, ESPECIALLY FOR THOSE MINORITY GROUPS WHO ARE DESCRIBED AS
ECONOMICALLY DEPRIVED, AND THAT CONGRESS HAS DECREED THAT ALL BUT A
RELATIVELY FEW ALIENS ARE TO BE PERMANENTLY EXCLUDED, THEN WE MUST
ANALYZE WHAT LAW ENFORCEMENT PROBLEMS EXIST.  IN THIS REGARD, THE
FOLLOWING FINDINGS OF FACT ARE MADE: 

THE ILLEGAL ALIEN PROBLEM IS ONE FOUND PRIMARILY IN THE SOUTHWESTERN
REGION OF THE UNITED STATES. 

THIS PROBLEM ALONG THE MEXICAN-AMERICAN BORDER HAS EXISTED FOR SOME
TIME WITH THE ORIGINAL RESPONSIBILITY FOR SECURING THE INTEGRITY OF THE
BORDER BEING ASSIGNED TO THE U.S.ARMY, ALONG WITH THE DEPARTMENTS OF
TREASURY AND LABOR, WHO HAD ABOUT 20,000 MEN ASSIGNED TO THE BORDER
BETWEEN BROWNSVILLE, TEXAS, AND SAN DIEGO, CALIFORNIA, 1920.  NATIONAL
GEOGRAPHIC MAGAZINE, "ALONG OUR SIDE OF THE MEXICAN BORDER."  (JULY
1920). 

CURRENTLY THE BURDEN OF CONTROLLING THE ENTRY OF ALIENS AND STEMMING
THE FLOW OF ILLEGAL ALIENS ALONG THE MEXICAN-AMERICAN BORDER IS
ASSIGNED TO THE INS.  /1/ 

THE BORDER EXTENDS FOR ALMOST 2,000 MILES FROM THE GULF OF MEXICO TO
THE PACIFIC COAST. 

ALONG THIS BORDER THERE WERE OVER 152 MILLION LEGAL ENTRIES AT
AUTHORIZED PORTS OF ENTRY DURING FISCAL 1972, OF WHICH OVER 91 MILLION
WERE MADE BY ALIENS.  OVER 39 MILLION OF THE LEGAL ENTRIES WERE MADE AT
THE THREE PORTS OF ENTRY IN SOUTHERN CALIFORNIA (CALEXICO, SAN YSIDRO
AND TECATE) OF WHICH OVER 24 MILLION WERE MADE BY ALIENS.  IMMIGRATION
AND NATURALIZATION SERVICE, 1972 ANNUAL REPORT, 25. 

OF THESE ENTRIES MADE BY ALIENS, THE LARGE PORTION WERE MADE BY
VISITORS WITH OFFICIAL PERMISSION TO ENTER THE COUNTRY WHO HAD BEEN
ISSUED TEMPORARY "BORDER PASSES" SUCH AS I--186 CARDS (ISSUED TO
RESIDENTS OF MEXICO), WHICH AUTHORIZE THE HOLDER TO TRAVEL WITHIN AN
AREA NO FURTHER THAN 25 MILES FROM THE BORDER AND FOR A PERIOD OF TIME
NOT TO EXCEED 72 HOURS.  SEE 8 C.F.R. 212.6. 

THESE TEMPORARY BORDER PASSES (I-186) ARE ISSUED TO SIMPLIFY
PROCEDURES NEEDED FOR ENTRY, AND THE ISSUING PROCESS RECOGNIZES THE
INTER-RELATIONSHIP OF CONTIGUOUS COMMUNITIES ALONG BOTH SIDES OF THE
BORDER.  HEARINGS ON ILLEGAL ALIENS, PT. 1, 192. 

IN FISCAL 1973 APPROXIMATELY 208,000 I-186 CARDS WERE ISSUED AND IT
IS ESTIMATED THAT OVER TWO MILLION SUCH CARDS ARE CURRENTLY IN
CIRCULATION.  HEARINGS ON ILLEGAL ALIENS, PT. 1, 173. 

WITHIN THE INS, THE U.S. BORDER PATROL, WHICH WAS FIRST ESTABLISHED
IN 1924, HAS THE PRIMARY FUNCTION OF PREVENTING THE ILLEGAL ENTRY OF
ALIENS AND THE APPREHENSION OF THOSE WHO HAVE ENTERED ILLEGALLY AND
THOSE WHO SMUGGLE THESE ILLEGAL ENTRANTS. 

THE BORDER PATROL HAS APPROXIMATELY 1,700 AGENTS, WHO ARE WELL
TRAINED LAW ENFORCEMENT OFFICERS, AND OF THESE ABOUT 80 PERCENT ARE
ASSIGNED ALONG OUR SOUTHERN BORDER WITH MEXICO. 

A "DEPORTABLE ALIEN" IS A PERSON WHO HAS BEEN FOUND TO BE DEPORTABLE
BY AN IMMIGRATION JUDGE, OR WHO ADMITS HIS DEPORTABILITY UPON
QUESTIONING BY OFFICIAL AGENTS. 

THE NUMBER OF DEPORTABLE ALIENS APPREHENDED BY THE BORDER PATROL
(WHICH MAKES THE GREAT MAJORITY OF APPREHENSIONS) NATIONALLY HAS GROWN
FROM 38,861 DURING FISCAL 1963 TO 498,123 IN FISCAL 1973; OF THIS
NUMBER 128,889 WERE FOUND BY BORDER PATROL AGENTS WORKING IN THE CHULA
VISTA SECTOR WHICH INCLUDES 70 MILES OF THE BORDER IN SAN DIEGO COUNTY,
AND 23,125 WERE LOCATED BY AGENTS IN THE EL CENTRO SECTOR WHICH
INCLUDES THE IMPERIAL COUNTY OF CALIFORNIA AND 75 MILES OF THE MEXICAN
AMERICAN BORDER.     THE BORDER PATROL AGENTS HAVE THE POWER TO
APPREHEND ILLEGAL ALIENS SINCE BY REGULATION THE ATTORNEY GENERAL HAS
DESIGNATED BORDER PATROL AGENTS TO BE IMMIGRATION OFFICERS AND
AUTHORIZED THEM TO EXERCISE POWERS AND DUTIES AS SUCH OFFICERS (8
C.F.R. 103.1 (I)); IMMIGRATION OFFICERS BY STATUTE 101 (A)(17) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163; AS AMENDED BY
THE ACT OF OCTOBER 3, 1973, 79 STAT. 911, 8 U.S.C. 1101 (A)(17), ARE
EMPOWERED, WITHOUT A WARRANT, TO STOP AND INTERROGATE ANY ALIEN OR
PERSON BELIEVED TO BE AN ALIEN AS TO HIS RIGHT TO REMAIN OR TO BE IN
THE UNITED STATES.  SEE AU YI LAU V. I.N.S., 144 U.S. APP. D.C. 147,
445 F.2D 217 (1971), CERT.  DENIED, 404 U.S. 864.... 

SEC. 287 (A)(3) OF THE 1952 IMMIGRATION ACT PROVIDES AUTHORITY FOR
AN IMMIGRATION OFFICER WITHIN A REASONABLE DISTANCE FROM THE BORDER OF
THE UNITED STATES TO BOARD AND SEARCH ANY CONVEYANCE OR VEHICLE;
"REASONABLE DISTANCE" AS USED IN THAT SECTION OF THE ACT MEANS WITHIN
100 AIR MILES FROM ANY EXTERNAL BOUNDARY OF THE UNITED STATES, 8 C.F.R.
287.1 (B). 

IMMIGRATION OFFICERS ALSO ARE AUTHORIZED TO CONDUCT INSPECTION OF
ALIENS SEEKING ADMISSION OR READMISSION TO, OR THE PRIVILEGE OF PASSING
THROUGH, THE UNITED STATES, AND ALSO ARE AUTHORIZED AND EMPOWERED TO
BOARD AND SEARCH ANY VEHICLE OR LIKE CONVEYANCE IN WHICH THEY BELIEVE
ALIENS ARE BEING BROUGHT INTO THE UNITED STATES.  SEC. 235(A) OF THE
1952 IMMIGRATION ACT, 8 U.S.C. 1225(A). 

THE DEPLOYMENT OF BORDER PATROL AGENTS ALONG THE BORDER IS INTENDED
TO MAXIMIZE THE EFFECTIVENESS OF THE LIMITED NUMBER OF PERSONNEL, WITH
THE FIRST LINE OF DEFENSE BEING CALLED THE "LINE WATCH."  THE LINE
WATCH CONSISTS OF AGENTS BEING PLACED IMMEDIATELY UPON THE PHYSICAL
BOUNDARY WHERE EXPERIENCE HAS SHOWN THAT LARGE NUMBERS OF ILLEGAL
ALIENS CAN BE DETECTED ATTEMPTING ENTRY.  A LARGE NUMBER OF AGENTS SO
ASSIGNED ARE PRIMARILY CONCERNED WITH RESPONDING TO SENSOR ALARMS
(ELECTRONIC DETECTION EQUIPMENT) WHICH ARE LOCATED AT STRATEGIC
POSITIONS.  THESE AGENTS ALSO RESPOND TO CITIZEN COMPLAINTS CONCERNING
THE SUSPECTED PRESENCE OF DEPORTABLE ALIENS. 

IN FISCAL 1973, THERE WERE 175,511 DEPORTABLE ALIENS APPREHENDED
THROUGHOUT THE NATION BY AGENTS ASSIGNED TO THE LINE WATCH, WITH 69,147
BEING APPREHENDED IN THE CHULA VISTA SECTOR AND 5,908 IN THE EL CENTRO
ALIENS RIGHT ON THE BORDER BY AGENTS ON THE LINE WATCH, INSPECTIONS AT
REGULAR POINTS OF ENTRY ARE NOT INFALLIBLE AND ILLEGAL CROSSINGS AT
OTHER THAN LEGAL PORTS OF ENTRY ARE NUMEROUS AND RECURRING.  THE
MAINTENANCE OF CONTINUOUS PATROL OVER THE VAST STRETCHES OF THE BORDER
IN SOUTHERN CALIFORNIA IS PHYSICALLY IMPOSSIBLE, SINCE THE
APPROXIMATELY 145 MILES OF BOUNDARY CREATES GEOGRAPHIC BARRIERS TO
EFFECTIVE PATROL AND MAN-MADE DEVICES SUCH AS FENCES AND ELECTRONIC
DEVICES ARE IN LARGE PART INEFFECTIVE. 

INCREASED MANPOWER ON LINE WATCH WOULD NOT MAKE THAT ACTIVITY
APPRECIABLY MORE EFFECTIVE AS WAS DEMONSTRATED IN 1969 DURING
"OPERATION INTERCEPT" WHEN MANY MORE AGENTS WERE STATIONED IMMEDIATELY
ON THE BORDER, AND YET, THE NUMBER OF ILLEGAL ALIENS APPREHENDED BY
AGENTS OPERATING INLAND WAS NOT SIGNIFICANTLY DIFFERENT FROM LIKE
PERIODS WHEN SUCH ADDITIONAL MAN-POWER WAS NOT LOCATED AT THE
BOUNDARY. 

ONCE THE ALIENS NEGOTIATE THEIR WAY THROUGH THE PORT OF ENTRY OR, AS
IS MOST COMMON, WALK ACROSS THE BORDER AT A PLACE OTHER THAN AN
OFFICIAL PORT OF ENTRY, THEY FIND TRANSPORTATION INLAND EITHER IN
PUBLIC CONVEYANCES, OR PRIVATE VEHICLES WITH INCREASING NUMBERS BEING
TRANSPORTED BY PROFESSIONAL SMUGGLERS.  A FEW HAVE BEEN KNOWN TO WALK
SOME DISTANCE INLAND AND HAVE BEEN APPREHENDED AFTER HAVING WALKED AS
FAR NORTH AS JULIAN, CALIFORNIA, WHICH IS OVER 60 MILES FROM THE
BORDER. 

AFTER CROSSING THE LINE WATCH SOME ILLEGAL ALIENS SEEK EMPLOYMENT IN
THE SOUTHERN DISTRICT, BUT THE VAST MAJORITY ATTEMPT TO PROCEED TO LOS
ANGELES COUNTY AND POINTS NORTH. 

ONCE THE ILLEGAL ALIEN GETS SETTLED IN A BIG CITY FAR AWAY FROM THE
BORDER IT BECOMES VERY DIFFICULT TO APPREHEND HIM, AND THEREFORE, THE
BORDER PATROL ATTEMPTS TO CONTAIN THE ILLEGAL ENTRANT WITHIN THIS
DISTRICT.  ALIENS IN CALIFORNIA AT 7.  WITH THIS OBJECTIVE IN MIND,
THEY HAVE (PURSUANT TO THEIR STATUTORY AUTHORITY DISCUSSED ABOVE)
ESTABLISHED, SINCE AT LEAST 1927, STRATEGICALLY LOCATED TRAFFIC
INSPECTION FACILITIES, COMMONLY REFERRED TO AS CHECKPOINTS, ON HIGHWAYS
AND ROADS, FOR THE PURPOSE OF QUESTIONING VEHICLE OCCUPANTS BELIEVED TO
BE ALIENS, AS TO THEIR RIGHT TO BE, OR TO REMAIN, IN THE UNITED STATES,
AND ALSO TO SEARCH SUCH VEHICLES FOR ILLEGAL ALIENS.  IMMIGRATION AND
NATURALIZATION SERVICE BORDER PATROL HANDBOOK 9 - 1 (1972) (HEREINAFTER
CITED AS HANDBOOK). 

THE PRIMARY OBJECTIVE OF THE CHECKPOINTS IS TO INTERCEPT VEHICLES OR
CONVEYANCES TRANSPORTING ILLEGAL ALIENS, OR NONRESIDENT ALIENS ADMITTED
WITH TEMPORARY BORDER PASSING CARDS (I-186), WITH PARTICULAR ATTENTION
BEING PAID TO VEHICLES OPERATED BY SMUGGLERS OR TRANSPORTERS DESTINED
FOR INLAND CITIES IN VIOLATION OF 8 U.S.C. 1324. 

THE SELECTION OF THE LOCATION OF A CHECKPOINT IS DETERMINED BY
FACTORS RELEVANT TO THE INTERDICTION OR INTERCEPTION OF DEPORTABLE
ALIENS WHO HAVE SUCCEEDED IN GAINING ENTRY IN AN UNLAWFUL MANNER OR ARE
PROCEEDING BEYOND THE IMMEDIATE BORDER AREA IN VIOLATION OF CONDITIONS
OF THEIR ADMISSION AS BORDER CROSSERS, 8 C.F.R. 212.60.  THE PRIMARY
FACTORS IN SELECTING A CHECKPOINT SITE ARE: 

1.  A LOCATION ON A HIGHWAY JUST BEYOND THE CONFLUENCE OF TWO OR
MORE ROADS FROM THE BORDER, IN ORDER TO PERMIT THE CHECKING OF A LARGE
VOLUME OF TRAFFIC WITH A MINIMUM NUMBER OF OFFICERS.  THIS ALSO AVOIDS
THE INCONVENIENCE OF REPEATED CHECKING OF COMMUTER OR URBAN TRAFFIC
WHICH WOULD OCCUR IF THE SITES WERE OPERATED ON THE NETWORK OF ROADS
LEADING FROM AND THROUGH THE MORE POPULATED AREAS NEAR THE BORDER. 

2.  TERRAIN AND TOPOGRAPHY THAT RESTRICT PASSAGE OF VEHICLES AROUND
THE CHECKPOINT, SUCH AS MOUNTAINS, DESERT, AND, AS IN THE CASE OF THE
SAN CLEMENTE CHECKPOINT, THE CAMP PENDLETON MARINE BASE. 

3.  SAFETY FACTORS:  AN UNOBSTRUCTED VIEW OF ONCOMING TRAFFIC, TO
PROVIDE A SAFE DISTANCE FOR SLOWING AND STOPPING; PARKING SPACE OFF THE
HIGHWAY; POWER SOURCE TO ILLUMINATE CONTROL SIGNS AND INSPECTION AREA,
AND BYPASS CAPABILITY FOR VEHICLES NOT REQUIRING EXAMINATION. 

4.  DUE TO THE TRAVEL RESTRICTIONS OF THE I-186 NON-RESIDENT BORDER
CROSSER TO AN AREA 25 MILES FROM THE BORDER (UNLESS ISSUED ADDITIONAL
DOCUMENTATION) THE CHECKPOINTS, AS A GENERAL RULE, ARE LOCATED AT A
POINT BEYOND THE 25 MILE ZONE IN ORDER TO CONTROL THE UNLAWFUL MOVEMENT
INLAND OF SUCH VISITORS. 

STRATEGIC SITES THAT MEET THE FOREGOING ENUMERATED CRITERIA ARE
SELECTED FOR "PERMANENT CHECKPOINTS."  THESE ARE SITES EQUIPPED TO
HANDLE A LARGE VOLUME OF TRAFFIC ON WHAT WOULD BE A 24-HOUR BASIS
EXCEPT IN CASE OF MANPOWER SHORTAGE, POOR WEATHER, OR WHERE TRAFFIC
BECOMES EXCESSIVE CAUSING A POTENTIAL SAFETY HAZARD.  HANDBOOK AT 9 -
3. 

OTHER TRAFFIC CHECKPOINTS, KNOWN AS "TEMPORARY CHECKPOINTS" ARE
MAINTAINED ON ROADS WHERE TRAFFIC IS LESS FREQUENT.  THE PLACEMENT OF
THESE SITES WILL BE GOVERNED BY THE SAME SAFETY FACTORS AS INVOLVED IN
PERMANENT SITE PLACEMENT AND ARE USUALLY LOCATED WHERE THE TERRAIN
ALLOWS AN ELEMENT OF SURPRISE.  OPERATIONS AT THESE TEMPORARY
CHECKPOINTS ARE SET UP AT IRREGULAR INTERVALS AND INTERMITTENTLY SO AS
TO CONFUSE THE POTENTIAL VIOLATOR.  HANDBOOK AT 9 - 3. 

WHEN THE CHECKPOINTS, WHETHER PERMANENT OR TEMPORARY, ARE IN
OPERATION, AN OFFICER STANDING AT THE "POINT" IN FULL DRESS UNIFORM ON
THE HIGHWAY WILL VIEW THE DECELERATING ONCOMING VEHICLES AND THEIR
PASSENGERS, AND WILL VISUALLY DETERMINE WHETHER HE HAS REASON TO
BELIEVE THE OCCUPANTS OF THE VEHICLE ARE ALIENS (I.E., "BREAKS THE
PATTERN" OF USUAL TRAFFIC).  IF SO, THE VEHICLE WILL BE STOPPED (IF THE
TRAFFIC AT THE CHECKPOINT IS HEAVY, AS AT THE SAN CLEMENTE CHECKPOINT,
THE VEHICLE WILL BE ACTUALLY DIRECTED OFF THE HIGHWAY) FOR INQUIRIES TO
BE MADE BY THE AGENT.  IF THE AGENT DOES NOT HAVE REASON TO BELIEVE
THAT THE VEHICLE APPROACHING THE CHECKPOINT IS CARRYING ALIENS, HE MAY
EXCHANGE SALUTATIONS, OR MERELY WAVE THE VEHICLE THROUGH THE
CHECKPOINT. 

IF, AFTER QUESTIONING THE OCCUPANTS, THE AGENT THEN BELIEVES THAT
ILLEGAL ALIENS MAY BE SECRETED IN THE VEHICLE (BECAUSE OF A BREAK IN
THE "PATTERN" INDICATING THE POSSIBILITY OF SMUGGLING) HE WILL INSPECT
THE VEHICLE BY GIVING A CURSORY VISUAL INSPECTION OF THOSE AREAS OF THE
VEHICLE NOT VISIBLE FROM THE OUTSIDE (I.E. TRUNK, INTERIOR PORTION OF
CAMPER, ETC.). 

AT THE POINT OF LOCATION OF THE SITES NOW IN REGULAR USE FEW ALIENS
HAVE REACHED THE LOCALE ON FOOT, WITH 99 PERCENT HAVING ENTERED A
VEHICLE OF ONE TYPE OR ANOTHER.  APPROXIMATELY 12 PERCENT OF ALL
APPREHENSIONS OF DEPORTABLE ALIENS THROUGHOUT THE NATION ARE MADE AT
CHECKPOINTS. 

IN THE UNITED STATES, DURING FISCAL 1973, APPROXIMATELY 55,300
DEPORTABLE ALIENS WERE APPREHENDED BY BORDER PATROL AGENTS WORKING
TRAFFIC CHECKING OPERATIONS.  IN THE CHULA VISTA SECTOR THE NUMBER FOR
THAT PERIOD WAS 21,232, WHILE IN THE EL CENTRO SECTOR THE TOTAL WAS
3,825.  /2/ DURING FISCAL 1973, A TOTAL OF 4,975 OF THE ABOVE WERE
VISITORS APPREHENDED AT THE CHECKPOINTS AND A MAJORITY OF THESE WERE
THOSE WHO WERE IN VIOLATION OF THE TERMS OF TEMPORARY BORDER PASSES
(FORM I-186). 

THE PLACEMENT OF THE CHECKPOINTS AND THEIR OPERATIONS ARE
COORDINATED BETWEEN THE TWO SECTORS LOCATED IN THIS DISTRICT AND WITH
BORDER PATROL ACTIVITIES TO THE EAST IN ARIZONA.  IN ACTUAL OPERATION
THE CHECKPOINTS, BE THEY "PERMANENT" OR "TEMPORARY," HAVE THE SAME
BASIC ACCOUTERMENTS.  TYPICALLY, ABOUT ONE-HALF MILE TO ONE MILE SOUTH
OF THE CHECKPOINT IS THE FIRST NOTIFICATION THAT THE CHECKPOINT IS
AHEAD.  THE NOTICE IS IN THE FORM OF A BLACK ON YELLOW SIGN INDICATED
"STOP AHEAD" WHICH HAS FLOODLIGHTS FOR NIGHTTIME ILLUMINATION, HANDBOOK
AT 9 - 9.  NEXT, ABOUT 200 YARDS FROM THE CHECKPOINT IS ANOTHER SIGN
CAUTIONING THE TRAFFIC TO SLOW DOWN OR TO BE CAREFUL; THIS SIGN USUALLY
HAS FLASHING YELLOW LIGHTS ATTACHED.  FOR THE FIFTY YARDS DIRECTLY
SOUTH OF THE CHECKPOINT THERE ARE PLACED TRAFFIC CONES EVENLY SPACED
ALONG EACH SIDE OF THE HIGHWAY.  THE ACTUAL CHECKPOINT HAS A SIGN
INDICATING TO THE TRAFFIC TO STOP, WITH OFFICIAL BORDER PATROL VEHICLES
PARKED ON EACH SIDE OF THE STOP ZONE SHOWING THE OFFICIAL BORDER PATROL
EMBLEM AND/OR THE DESIGNATION U.S.OFFICERS.  AT THIS POINT THE AGENTS
ASSIGNED AT THE "POINT," IN THEIR OFFICIAL UNIFORM, CONDUCT CHECKING
AND INSPECTION OPERATIONS.  BEYOND THE CHECKPOINT IS USUALLY A SIGN
INDICATING "THANK YOU." 

WHILE A LARGE NUMBER OF APPREHENSIONS ARE MADE AT THE CHECKPOINTS
EACH YEAR, AS RELATED ABOVE, THE PRIMARY REASON FOR THEIR OPERATION IS
THAT THEY EFFECTIVELY DETER LARGE NUMBERS OF ALIENS FROM ILLEGALLY
ENTERING THE COUNTRY OR VIOLATING THE TERMS OF ANY TEMPORARY CROSSING
CARD THEY MAY HAVE, BECAUSE THEY FORM AN EFFECTIVE OBSTACLE AND ARE
LOCATED ON ALL MAJOR ROUTES NORTH OUT OF THE BORDER REGION. 

THE DETERRENCE ASPECT OF THESE TRAFFIC CHECKPOINT OPERATIONS IS
AMPLY DEMONSTRATED BY THE FACT THAT THE ILLEGAL ALIEN HAS TO RESORT TO
THE EMPLOYMENT OF PROFESSIONAL SMUGGLERS TO PROVIDE TRANSPORTATION
AROUND OR THROUGH THESE CHECKPOINTS. 

SOME OF THESE SMUGGLING OPERATIONS HAVE DEVELOPED INTO SOPHISTICATED
AND INVOLVED OPERATIONS WITH THE FOLLOWING GENERAL MODUS OPERANDI: 

1.  CONTACT IS MADE BETWEEN THE SMUGGLER AND THE ALIEN PRIOR TO THE
LATTER'S LEAVING MEXICO. 

2.  THE ALIENS THEN MAKE ENTRY ON FOOT, WITH POSSIBLY THE AID OF A
"GUIDE," OR BY USE OF TEMPORARY BORDER PASSES.  THEN THEY ENTER
VEHICLES APPROXIMATELY 2 OR 20 MILES INLAND AFTER HAVING PASSED THROUGH
THE BORDER PATROL'S LINE WATCH ACTIVITIES. 

3.  TO GET THROUGH THE TRAFFIC CHECKPOINT THEY MIGHT USE A "DROP
HOUSE," WHICH ACTS AS A STAGING AREA TO KEEP THE ALIENS AWAITING
INCLEMENT WEATHER, OR ANY EVENT THAT MIGHT CAUSE THE CHECKPOINT TO
CLOSE DOWN TEMPORARILY.  OR, THEY MAY USE A "DECOY" VEHICLE, WHICH IS A
VEHICLE LOADED WITH ILLEGAL ALIENS WHICH IT IS ANTICIPATED WILL BE
STOPPED AT THE CHECKPOINT AND WOULD THEREFORE OCCUPY THE AGENTS SO THAT
OTHER VEHICLES COULD PASS THROUGH WITHOUT INSPECTION.  THEY EVEN USE
"SCOUT CARS" TO PROBE THOSE ROADS WHERE TEMPORARY CHECKPOINTS ARE
MAINTAINED, SO AS TO ADVISE OTHER VEHICLES WHETHER IT IS SAFE TO
PROCEED. 

4.  THE "LOAD" VEHICLES THEMSELVES CAN BE OF ANY TYPE OF CONVEYANCE
AND THE METHODS USED TO SECRETE ALIENS INSIDE THEM ARE VARIED AND OFTEN
SHOW SOME ORIGINALITY.  UNFORTUNATELY, SOMETIMES THESE ARE VERY
DANGEROUS TO THE ALIENS THEMSELVES.  IT HAS BEEN REPORTED, FOR EXAMPLE,
THAT IT IS NOT AT ALL UNUSUAL FOR AN ALIEN TO DIE FROM ASPHYXIATION
WHILE CONCEALED IN AN AUTOMOBILE TRUNK OR A TANK CAR. 

5.  THE COST OF THE TRANSPORTATION PROVIDED TO THE ALIENS IS
APPROXIMATELY $225 TO $250 FOR EACH ALIEN FOR THE TRIP THROUGH THE
CHECKPOINT ON TO THE LOS ANGELES AREA.  SINCE SMUGGLING OPERATIONS ARE
ALMOST EXCLUSIVELY "CASH AND CARRY" BUSINESSES AND THE AVERAGE INCOME
AMONG MEXICAN NATIONALS WHO MAY WISH TO SEEK RESIDENCE HERE ILLEGALLY
IS QUITE SMALL, THIS COST TENDS TO ACT AS A VERY SIGNIFICANT DETERRENT
IN AND OF ITSELF.  THE CHECKPOINTS ARE THE MAJOR REASON FOR SUCH A HIGH
PRICE AND IF THEY WERE DISCONTINUED FOR ANY LENGTH OF TIME IT WOULD BE
ONE MORE ENCOURAGEMENT TO ILLEGAL IMMIGRATION.     THE DETERRENT IMPACT
OF THESE CHECKPOINTS HAS BEEN NOTED ON SEVERAL OCCASIONS WHEN THEY
RESUMED OPERATION UNEXPECTEDLY AND A GREAT NUMBER OF ALIENS WERE
APPREHENDED. 

THE EVIDENCE PRESENTED BEFORE THIS COURT CLEARLY ESTABLISHED THAT
THERE IS NO REASONABLE OR EFFECTIVE ALTERNATIVE METHOD OF DETECTION AND
APPREHENSION AVAILABLE TO THE BORDER PATROL IN THE ABSENCE OF THE
CHECKPOINTS, FOR EVEN A GEOMETRIC INCREASE IN ITS PERSONNEL OR LINE
WATCH WOULD NOT LEAVE ANY CONTROL OVER THOSE ADMITTED AS TEMPORARY
VISITORS FROM MEXICO. 

OF THE APPROXIMATELY HALF MILLION ILLEGAL ALIENS APPREHENDED IN
FISCAL 1973, VIRTUALLY NONE WERE PROSECUTED, UNLESS THEY PRESENTED
COUNTERFEIT OR ALTERED DOCUMENTS OR AIDED IN SMUGGLING ENDEAVORS. 
THIS DISTRICT HAS ONLY 3 PERCENT OF THE TOTAL LENGTH OF LAND BORDERS,
AND YET, FULLY 30 PERCENT OF ALL APPREHENSIONS OF DEPORTABLE ALIENS
MADE IN THE UNITED STATES ARE MADE WITHIN THIS DISTRICT. 

/1/ THE NOTATION "INS" WHEN USED HEREIN HAS REFERENCE TO THE
IMMIGRATION AND NATURALIZATION SERVICE. 

/2/ APPARENTLY APPREHENSIONS OTHER THAN THOSE ACTUALLY MADE AT THE
CHECKPOINT ARE INCLUDED IN THESE FIGURES, BUT THEY ARE A REPRESENTATION
OF THE TOTAL ACTIVITY AT THESE CHECKPOINTS AND THE MAJORITY OF
APPREHENSIONS INCLUDED THEREIN ARE MADE AT THE CHECKPOINTS (R.T. 274,
396). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACKMUN JOINS, CONCURRING
IN THE JUDGMENT.  /1/ 

GIVEN ALMEIDA-SANCHEZ V. UNITED STATES, 413 U.S. 266 (1973), WITH
WHICH I DISAGREED BUT WHICH IS NOW AUTHORITATIVE, THE RESULTS REACHED
IN THESE CASES WERE LARGELY FOREORDAINED.  THE COURT PURPORTS TO LEAVE
THE QUESTION OPEN, BUT IT SEEMS TO ME, MY BROTHER REHNQUIST
NOTWITHSTANDING, THAT UNDER THE COURT'S OPINIONS CHECKPOINT
INVESTIGATIVE STOPS, WITHOUT SEARCH, WILL BE DIFFICULT TO JUSTIFY UNDER
THE FOURTH AMENDMENT ABSENT PROBABLE CAUSE OR REASONABLE SUSPICION.  IN
ANY EVENT, THE COURT HAS THUS DISMANTLED MAJOR PARTS OF THE APPARATUS
BY WHICH THE NATION HAS ATTEMPTED TO INTERCEPT MILLIONS OF ALIENS WHO
ENTER AND REMAIN ILLEGALLY IN THIS COUNTRY. 

THE ENTIRE SYSTEM, HOWEVER, HAS BEEN NOTABLY UNSUCCESSFUL IN
DETERRING OR STEMMING THIS HEAVY FLOW; AND ITS COSTS, INCLUDING ADDED
BURDENS ON THE COURTS, HAVE BEEN SUBSTANTIAL.  PERHAPS THE JUDICIARY
SHOULD NOT STRAIN TO ACCOMMODATE THE REQUIREMENTS OF THE FOURTH
AMENDMENT TO THE NEEDS OF A SYSTEM WHICH AT BEST CAN DEMONSTRATE ONLY
MINIMAL EFFECTIVENESS AS LONG AS IT IS LAWFUL FOR BUSINESS FIRMS AND
OTHERS TO EMPLOY ALIENS WHO ARE ILLEGALLY IN THE COUNTRY.  THIS
PROBLEM, WHICH ORDINARY LAW ENFORCEMENT HAS NOT BEEN ABLE TO SOLVE,
ESSENTIALLY POSES QUESTIONS OF NATIONAL POLICY AND IS CHIEFLY THE
BUSINESS OF CONGRESS AND THE EXECUTIVE BRANCH RATHER THAN THE COURTS. 

I CONCUR IN THE JUDGMENT IN THESE TWO CASES. 

/1/ THIS OPINION APPLIES ALSO TO NO. 74-114, UNITED STATES V.
BRIGNONI-PONCE, ANTE, P. 873. 

MARK L. EVANS ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
PETERSEN, ACTING ASSISTANT ATTORNEY GENERAL KEENEY, SIDNEY M. GLAZER,
AND JEROME M. FEIT. 

CHARLES M. SEVILLA, BY APPOINTMENT OF THE COURT, 420 U.S. 905,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS JOHN J.
CLEARY. 

SANFORD JAY ROSEN FILED A BRIEF FOR THE MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :











O'CONNOR V. DONALDSON, 422 U.S. 563 


       O'CONNOR V. DONALDSON

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 74 - 8.  ARGUED JANUARY 15, 1975--DECIDED JUNE 26,
1975;

           493 F.2D 507, VACATED AND REMANDED. 


    RESPONDENT, WHO WAS CONFINED ALMOST 15 YEARS "FOR CARE,

  MAINTENANCE, AND TREATMENT" AS A MENTAL PATIENT IN A FLORIDA

  STATE HOSPITAL, BROUGHT THIS ACTION FOR DAMAGES UNDER 42 U.S.C.

  1983 AGAINST PETITIONER, THE HOSPITAL'S SUPERINTENDENT, AND OTHER

  STAFF MEMBERS, ALLEGING THAT THEY HAD INTENTIONALLY AND

  MALICIOUSLY DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO LIBERTY. 

  THE EVIDENCE SHOWED THAT RESPONDENT, WHOSE FREQUENT REQUESTS FOR

  RELEASE HAD BEEN REJECTED BY PETITIONER NOTWITHSTANDING

  UNDERTAKINGS BY RESPONSIBLE PERSONS TO CARE FOR HIM IF NECESSARY,

  WAS DANGEROUS NEITHER TO HIMSELF NOR OTHERS, AND, IF MENTALLY

 ILL, HAD NOT RECEIVED TREATMENT.  PETITIONER'S PRINCIPAL DEFENSE

  WAS THAT HE HAD ACTED IN GOOD FAITH, SINCE STATE LAW, WHICH HE

  BELIEVED VALID, HAD AUTHORIZED INDEFINITE CUSTODIAL CONFINEMENT

  OF THE "SICK," EVEN IF THEY WERE NOT TREATED AND THEIR RELEASE

  WOULD NOT BE HARMFUL, AND THAT PETITIONER WAS THEREFORE IMMUNE

  FROM ANY LIABILITY FOR MONETARY DAMAGES.  THE JURY FOUND FOR

  RESPONDENT AND AWARDED COMPENSATORY AND PUNITIVE DAMAGES AGAINST

  PETITIONER AND A CODEFENDANT.  THE COURT OF APPEALS, ON BROAD

  FOURTEENTH AMENDMENT GROUNDS, AFFIRMED THE DISTRICT COURT'S

ENSUING JUDGMENT ENTERED ON THE VERDICT.  HELD: 

     1.  A STATE CANNOT CONSTITUTIONALLY CONFINE, WITHOUT MORE, A

 NONDANGEROUS INDIVIDUAL WHO IS CAPABLE OF SURVIVING SAFELY IN

  FREEDOM BY HIMSELF OR WITH THE HELP OF WILLING AND RESPONSIBLE

  FAMILY MEMBERS OR FRIENDS, AND SINCE THE JURY FOUND, UPON AMPLE

  EVIDENCE, THAT PETITIONER DID SO CONFINE RESPONDENT, IT PROPERLY

  CONCLUDED THAT PETITIONER HAD VIOLATED RESPONDENT'S RIGHT TO

  LIBERTY.  PP. 573 - 576. 

     2.  SINCE THE COURT OF APPEALS DID NOT CONSIDER WHETHER THE

  TRIAL JUDGE ERRED IN REFUSING TO GIVE AN INSTRUCTION REQUESTED BY

  PETITIONER CONCERNING HIS CLAIMED RELIANCE ON STATE LAW AS

  AUTHORIZATION FOR RESPONDENT'S CONTINUED CONFINEMENT, AND SINCE

  NEITHER COURT BELOW HAD THE BENEFIT OF THIS COURT'S DECISION IN

  WOOD V. STRICKLAND, 420 U. S. 308, ON THE SCOPE OF A STATE

  OFFICIAL'S QUALIFIED IMMUNITY UNDER 42 U.S.C. 1983, THE CASE IS

  VACATED AND REMANDED FOR CONSIDERATION OF PETITIONER'S LIABILITY

VEL NON FOR MONETARY DAMAGES FOR VIOLATING RESPONDENT'S

CONSTITUTIONAL RIGHT.  564 PP. 576 - 577. 

     STEWART, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

  BURGER, C. J., FILED A CONCURRING OPINION, POST, P. 578. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, KENNETH DONALDSON, WAS CIVILLY COMMITTED TO
CONFINEMENT AS A MENTAL PATIENT IN THE FLORIDA STATE HOSPITAL AT
CHATTAHOOCHEE IN JANUARY 1957.  HE WAS KEPT IN CUSTODY THERE AGAINST
HIS WILL FOR NEARLY 15 YEARS.  THE PETITIONER, DR. J. B. O'CONNOR, WAS
THE HOSPITAL'S SUPERINTENDENT DURING MOST OF THIS PERIOD.  THROUGHOUT
HIS CONFINEMENT DONALDSON REPEATEDLY, BUT UNSUCCESSFULLY, DEMANDED HIS
RELEASE, CLAIMING THAT HE WAS DANGEROUS TO NO ONE, THAT HE WAS NOT
MENTALLY ILL, AND THAT, AT ANY RATE, THE HOSPITAL WAS NOT PROVIDING
TREATMENT FOR HIS SUPPOSED ILLNESS.  FINALLY, IN FEBRUARY 1971,
DONALDSON BROUGHT THIS LAWSUIT UNDER 42 U.S.C. 1983, IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, ALLEGING
THAT O'CONNOR, AND OTHER MEMBERS OF THE HOSPITAL STAFF, NAMED AS
DEFENDANTS, HAD INTENTIONALLY AND MALICIOUSLY DEPRIVED HIM OF HIS
CONSTITUTIONAL RIGHT TO LIBERTY.  /1/ AFTER A FOUR-DAY TRIAL, THE JURY
RETURNED A VERDICT ASSESSING BOTH COMPENSATORY AND PUNITIVE DAMAGES
AGAINST O'CONNOR AND A CODEFENDANT.  THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT AFFIRMED THE JUDGMENT, 493 F. 2D 507.  WE GRANTED O'CONNOR'S
PETITION FOR CERTIORARI, 419 U. S. 894, BECAUSE OF THE IMPORTANT
CONSTITUTIONAL QUESTIONS SEEMINGLY PRESENTED. 

        I 

DONALDSON'S COMMITMENT WAS INITIATED BY HIS FATHER, WHO THOUGHT THAT
HIS SON WAS SUFFERING FROM "DELUSIONS."  AFTER HEARINGS BEFORE A COUNTY
JUDGE OF PINELLAS COUNTY, FLA., DONALDSON WAS FOUND TO BE SUFFERING
FROM "PARANOID SCHIZOPHRENIA" AND WAS COMMITTED FOR "CARE, MAINTENANCE,
AND TREATMENT" PURSUANT TO FLORIDA STATUTORY PROVISIONS THAT HAVE SINCE
BEEN REPEALED.  /2/  THE STATE LAW WAS LESS THAN CLEAR IN SPECIFYING
THE GROUNDS NECESSARY FOR COMMITMENT, AND THE RECORD IS SCANTY AS TO
DONALDSON'S CONDITION AT THE TIME OF THE JUDICIAL HEARING.  THESE
MATTERS ARE, HOWEVER, IRRELEVANT, FOR THIS CASE INVOLVES NO CHALLENGE
TO THE INITIAL COMMITMENT, BUT IS FOCUSED, INSTEAD, UPON THE NEARLY 15
YEARS OF CONFINEMENT THAT FOLLOWED. 

THE EVIDENCE AT THE TRIAL SHOWED THAT THE HOSPITAL STAFF HAD THE
POWER TO RELEASE A PATIENT, NOT DANGEROUS TO HIMSELF OR OTHERS, EVEN IF
HE REMAINED MENTALLY ILL AND HAD BEEN LAWFULLY COMMITTED.  /3/ DESPITE
MANY REQUESTS, O'CONNOR REFUSED TO ALLOW THAT POWER TO BE EXERCISED IN
DONALDSON'S CASE.  AT THE TRIAL, O'CONNOR INDICATED THAT HE HAD
BELIEVED THAT DONALDSON WOULD HAVE BEEN UNABLE TO MAKE A "SUCCESSFUL
ADJUSTMENT OUTSIDE THE INSTITUTION," BUT COULD NOT RECALL THE BASIS FOR
THAT CONCLUSION.  O'CONNOR RETIRED AS SUPERINTENDENT SHORTLY BEFORE
THIS SUIT WAS FILED.  A FEW MONTHS THEREAFTER, AND BEFORE THE TRIAL,
DONALDSON SECURED HIS RELEASE AND JUDICIAL RESTORATION OF COMPETENCY,
WITH THE SUPPORT OF THE HOSPITAL STAFF. 

THE TESTIMONY AT THE TRIAL DEMONSTRATED, WITHOUT CONTRADICTION, THAT
DONALDSON HAD POSED NO DANGER TO OTHERS DURING HIS LONG CONFINEMENT, OR
INDEED AT ANY POINT IN HIS LIFE.  O'CONNOR HIMSELF CONCEDED THAT HE HAD
NO PERSONAL OR SECONDHAND KNOWLEDGE THAT DONALDSON HAD EVER COMMITTED A
DANGEROUS ACT.  THERE WAS NO EVIDENCE THAT DONALDSON HAD EVER BEEN
SUICIDAL OR BEEN THOUGHT LIKELY TO INFLICT INJURY UPON HIMSELF.  ONE OF
O'CONNOR'S CODEFENDANTS ACKNOWLEDGED THAT DONALDSON COULD HAVE EARNED
HIS OWN LIVING OUTSIDE THE HOSPITAL.  HE HAD DONE SO FOR SOME 14 YEARS
BEFORE HIS COMMITMENT, AND IMMEDIATELY UPON HIS RELEASE HE SECURED A
RESPONSIBLE JOB IN HOTEL ADMINISTRATION. 

FURTHERMORE, DONALDSON'S FREQUENT REQUESTS FOR RELEASE HAD BEEN
SUPPORTED BY RESPONSIBLE PERSONS WILLING TO PROVIDE HIM ANY CARE HE
MIGHT NEED ON RELEASE.  IN 1963, FOR EXAMPLE, A REPRESENTATIVE OF
HELPING HANDS, INC., A HALFWAY HOUSE FOR MENTAL PATIENTS, WROTE
O'CONNOR ASKING HIM TO RELEASE DONALDSON TO ITS CARE.  THE REQUEST WAS
ACCOMPANIED BY A SUPPORTING LETTER FROM THE MINNEAPOLIS CLINIC OF
PSYCHIATRY AND NEUROLOGY, WHICH A CODEFENDANT CONCEDED WAS A "GOOD
CLINIC."  O'CONNOR REJECTED THE OFFER, REPLYING THAT DONALDSON COULD BE
RELEASED ONLY TO HIS PARENTS.  THAT RULE WAS APPARENTLY OF O'CONNOR'S
OWN MAKING.  AT THE TIME, DONALDSON WAS 55 YEARS OLD, AND, AS O'CONNOR
KNEW, DONALDSON'S PARENTS WERE TOO ELDERLY AND INFIRM TO TAKE
RESPONSIBILITY FOR HIM.  MOREOVER, IN HIS CONTINUING CORRESPONDENCE
WITH DONALDSON'S PARENTS, O'CONNOR NEVER INFORMED THEM OF THE HELPING
HANDS OFFER.  IN ADDITION, ON FOUR SEPARATE OCCASIONS BETWEEN 1964 AND
1968, JOHN LEMBCKE, A COLLEGE CLASSMATE OF DONALDSON'S AND A LONGTIME
FAMILY FRIEND, ASKED O'CONNOR TO RELEASE DONALDSON TO HIS CARE.  ON
EACH OCCASION O'CONNOR REFUSED.  THE RECORD SHOWS THAT LEMBCKE WAS A
SERIOUS AND RESPONSIBLE PERSON, WHO WAS WILLING AND ABLE TO ASSUME
RESPONSIBILITY FOR DONALDSON'S WELFARE. 

THE EVIDENCE SHOWED THAT DONALDSON'S CONFINEMENT WAS A SIMPLE REGIME
OF ENFORCED CUSTODIAL CARE, NOT A PROGRAM DESIGNED TO ALLEVIATE OR CURE
HIS SUPPOSED ILLNESS.  NUMEROUS WITNESSES, INCLUDING ONE OF O'CONNOR'S
CODEFENDANTS, TESTIFIED THAT DONALDSON HAD RECEIVED NOTHING BUT
CUSTODIAL CARE WHILE AT THE HOSPITAL.  O'CONNOR DESCRIBED DONALDSON'S
TREATMENT AS "MILIEU THERAPY."  BUT WITNESSES FROM THE HOSPITAL STAFF
CONCEDED THAT, IN THE CONTEXT OF THIS CASE, "MILIEU THERAPY" WAS A
EUPHEMISM FOR CONFINEMENT IN THE "MILIEU" OF A MENTAL HOSPITAL.  /4/ F
FOR SUBSTANTIAL PERIODS, DONALDSON WAS SIMPLY KEPT IN A LARGE ROOM THAT
HOUSED 60 PATIENTS, MANY OF WHOM WERE UNDER CRIMINAL COMMITMENT. 
DONALDSON'S REQUESTS FOR GROUND PRIVILEGES, OCCUPATIONAL TRAINING, AND
AN OPPORTUNITY TO DISCUSS HIS CASE WITH O'CONNOR OR OTHER STAFF MEMBERS
WERE REPEATEDLY DENIED. 

AT THE TRIAL, O'CONNOR'S PRINCIPAL DEFENSE WAS THAT HE HAD ACTED IN
GOOD FAITH AND WAS THEREFORE IMMUNE FROM ANY LIABILITY FOR MONETARY
DAMAGES.  HIS POSITION, IN SHORT, WAS THAT STATE LAW, WHICH HE HAD
BELIEVED VALID, HAD AUTHORIZED INDEFINITE CUSTODIAL CONFINEMENT OF THE
"SICK," EVEN IF THEY WERE NOT GIVEN TREATMENT AND THEIR RELEASE COULD
HARM NO ONE.  /5/ 

THE TRIAL JUDGE INSTRUCTED THE MEMBERS OF THE JURY THAT THEY SHOULD
FIND THAT O'CONNOR HAD VIOLATED DONALDSON'S CONSTITUTIONAL RIGHT TO
LIBERTY IF THEY FOUND THAT HE HAD 

"CONFINED (DONALDSON) AGAINST HIS WILL, KNOWING THAT HE WAS NOT
MENTALLY ILL OR DANGEROUS OR KNOWING THAT IF MENTALLY ILL HE WAS NOT
RECEIVING TREATMENT FOR HIS ALLEGED MENTAL ILLNESS. 

     "NOW, THE PURPOSE OF INVOLUNTARY HOSPITALIZATION IS TREATMENT

  AND NOT MERE CUSTODIAL CARE OR PUNISHMENT IF A PATIENT IS NOT A

  DANGER TO HIMSELF OR OTHERS.  WITHOUT SUCH TREATMENT THERE IS NO

  JUSTIFICATION FROM A CONSTITUTIONAL STAND-POINT FOR CONTINUED

  CONFINEMENT UNLESS YOU SHOULD ALSO FIND THAT (DONALDSON) WAS

  DANGEROUS TO EITHER HIMSELF OR OTHERS."  /6/

THE TRIAL JUDGE FURTHER INSTRUCTED THE JURY THAT O'CONNOR WAS IMMUNE
FROM DAMAGES IF HE 

"REASONABLY BELIEVED IN GOOD FAITH THAT DETENTION OF (DONALDSON) WAS
PROPER FOR THE LENGTH OF TIME HE WAS SO CONFINED . . . . 

   "HOWEVER, MERE GOOD INTENTIONS WHICH DO NOT GIVE RISE TO A

  REASONABLE BELIEF THAT DETENTION IS LAWFULLY REQUIRED CANNOT

  JUSTIFY (DONALDSON'S) CONFINEMENT IN THE FLORIDA STATE

  HOSPITAL." 

THE JURY RETURNED A VERDICT FOR DONALDSON AGAINST O'CONNOR AND A
CODEFENDANT, AND AWARDED DAMAGES OF $38,500, INCLUDING $10,000 IN
PUNITIVE DAMAGES.  /7/ 

THE COURT OF APPEALS AFFIRMED THE JUDGMENT OF THE DISTRICT COURT IN
A BROAD OPINION DEALING WITH "THE FAR-REACHING QUESTION WHETHER THE
FOURTEENTH AMENDMENT GUARANTEES A RIGHT TO TREATMENT TO PERSONS
INVOLUNTARILY CIVILLY COMMITTED TO STATE MENTAL HOSPITALS."  493 F. 2D,
AT 509.  THE APPELLATE COURT HELD THAT WHEN, AS IN DONALDSON'S CASE,
THE RATIONALE FOR CONFINEMENT IS THAT THE PATIENT IS IN NEED OF
TREATMENT, THE CONSTITUTION REQUIRES THAT MINIMALLY ADEQUATE TREATMENT
IN FACT BE PROVIDED.  ID., AT 521.  THE COURT FURTHER EXPRESSED THE
VIEW THAT, REGARDLESS OF THE GROUNDS FOR INVOLUNTARY CIVIL COMMITMENT,
A PERSON CONFINED AGAINST HIS WILL AT A STATE MENTAL INSTITUTION HAS "A
CONSTITUTIONAL RIGHT TO RECEIVE SUCH INDIVIDUAL TREATMENT AS WILL GIVE
HIM A REASONABLE OPPORTUNITY TO BE CURED OR TO IMPROVE HIS MENTAL
CONDITION."  ID., AT 520.  CONVERSELY, THE COURT'S OPINION IMPLIED THAT
IT IS CONSTITUTIONALLY PERMISSIBLE FOR A STATE TO CONFINE A MENTALLY
ILL PERSON AGAINST HIS WILL IN ORDER TO TREAT HIS ILLNESS, REGARDLESS
OF WHETHER HIS ILLNESS RENDERS HIM DANGEROUS TO HIMSELF OR OTHERS.  SEE
ID., AT 522 - 527. 

II 

WE HAVE CONCLUDED THAT THE DIFFICULT ISSUES OF CONSTIUTIONAL LAW
DEALT WITH BY THE COURT OF APPEALS ARE NOT PRESENTED BY THIS CASE IN
ITS PRESENT POSTURE.  SPECIFICALLY, THERE IS NO REASON NOW TO DECIDE
WHETHER MENTALLY ILL PERSONS DANGEROUS TO THEMSELVES OR TO OTHERS HAVE
A RIGHT TO TREATMENT UPON COMPULSORY CONFINEMENT BY THE STATE, OR
WHETHER THE STATE MAY COMPULSORILY CONFINE A NONDANGEROUS, MENTALLY ILL
INDIVIDUAL FOR THE PURPOSE OF TREATMENT.  AS WE VIEW IT, THIS CASE
RAISES A SINGLE, RELATIVELY SIMPLE, BUT NONETHELESS IMPORTANT QUESTION
CONCERNING EVERY MAN'S CONSTITUTIONAL RIGHT TO LIBERTY. 

THE JURY FOUND THAT DONALDSON WAS NEITHER DANGEROUS TO HIMSELF NOR
DANGEROUS TO OTHERS, AND ALSO FOUND THAT, IF MENTALLY ILL, DONALDSON
HAD NOT RECEIVED TREATMENT.  /8/ THAT VERDICT, BASED ON ABUNDANT
EVIDENCE, MAKES THE ISSUE BEFORE THE COURT A NARROW ONE.  WE NEED NOT
DECIDE WHETHER, WHEN, OR BY WHAT PROCEDURES, A MENTALLY ILL PERSON MAY
BE CONFINED BY THE STATE ON ANY OF THE GROUNDS WHICH, UNDER
CONTEMPORARY STATUTES, ARE GENERALLY ADVANCED TO JUSTIFY INVOLUNTARY
CONFINEMENT OF SUCH A PERSON--TO PREVENT INJURY TO THE PUBLIC, TO
ENSURE HIS OWN SURVIVAL OR SAFETY, /9/ OR TO ALLEVIATE OR CURE HIS
ILLNESS.  SEE JACKSON V. INDIANA, 406, U.S. 715, 736 - 737; HUMPHREY V.
CADY, 405 U.S. 504, 509.  FOR THE JURY FOUND THAT NONE OF THE ABOVE
GROUNDS FOR CONTINUED CONFINEMENT WAS PRESENT IN DONALDSON'S CASE. 
/10/ 

GIVEN THE JURY'S FINDINGS, WHAT WAS LEFT AS JUSTIFICATION FOR
KEEPING DONALDSON IN CONTINUED CONFINEMENT?  THE FACT THAT STATE LAW
MAY HAVE AUTHORIZED CONFINEMENT OF THE HARMLESS MENTALLY ILL DOES NOT
ITSELF ESTABLISH A CONSTITUTIONALLY ADEQUATE PURPOSE FOR THE
CONFINEMENT.  SEE JACKSON V. INDIANA, SUPRA, AT 720 - 723; MCNEIL V.
DIRECTOR, PATUXENT INSTITUTION, 407 U.S. 245, 248 - 250.  NOR IS IT
ENOUGH THAT DONALDSON'S ORIGINAL CONFINEMENT WAS FOUNDED UPON A
CONSTITUTIONALLY ADEQUATE BASIS, IF IN FACT IT WAS, BECAUSE EVEN IF HIS
INVOLUNTARY CONFINEMENT WAS INITIALLY PERMISSIBLE, IT COULD NOT
CONSTITUTIONALLY CONTINUE AFTER THAT BASIS NO LONGER EXISTED.  575
JACKSON V. INDIANA, SUPRA, AT 738; MCNEIL V. DIRECTOR, PATUXENT
INSTITUTION, SUPRA. 

A FINDING OF "MENTAL ILLNESS" ALONE CANNOT JUSTIFY A STATE'S LOCKING
A PERSON UP AGAINST HIS WILL AND KEEPING HIM INDEFINITELY IN SIMPLE
CUSTODIAL CONFINEMENT.  ASSUMING THAT THAT TERM CAN BE GIVEN A
REASONABLY PRECISE CONTENT AND THAT THE "MENTALLY ILL" CAN BE
IDENTIFIED WITH REASONABLE ACCURACY, THERE IS STILL NO CONSTITUTIONAL
BASIS FOR CONFINING SUCH PERSONS INVOLUNTARILY IF THEY ARE DANGEROUS TO
NO ONE AND CAN LIVE SAFELY IN FREEDOM. 

MAY THE STATE CONFINE THE MENTALLY ILL MERELY TO ENSURE THEM A LIVING
STANDARD SUPERIOR TO THAT THEY ENJOY IN THE PRIVATE COMMUNITY?  THAT
THE STATE HAS A PROPER INTEREST IN PROVIDING CARE AND ASSISTANCE TO THE
UNFORTUNATE GOES WITHOUT SAYING.  BUT THE MERE PRESENCE OF MENTAL
ILLNESS DOES NOT DISQUALIFY A PERSON FROM PREFERRING HIS HOME TO THE
COMFORTS OF AN INSTITUTION.  MOREOVER, WHILE THE STATE MAY ARGUABLY
CONFINE A PERSON TO SAVE HIM FROM HARM, INCARCERATION IS RARELY IF EVER
A NECESSARY CONDITION FOR RAISING THE LIVING STANDARDS OF THOSE CAPABLE
OF SURVIVING SAFELY IN FREEDOM, ON THEIR OWN OR WITH THE HELP OF FAMILY
OR FRIENDS.  SEE SHELTON V. TUCKER, 364 U.S. 479, 488 - 490. 

MAY THE STATE FENCE IN THE HARMLESS MENTALLY ILL SOLELY TO SAVE ITS
CITIZENS FROM EXPOSURE TO THOSE WHOSE WAYS ARE DIFFERENT?  ONE MIGHT AS
WELL ASK IF THE STATE, TO AVOID PUBLIC UNEASE, COULD INCARCERATE ALL
WHO ARE PHYSICALLY UNATTRACTIVE OR SOCIALLY ECCENTRIC.  MERE PUBLIC
INTOLERANCE OR ANIMOSITY CONNOT CONSTITUTIONALLY JUSTIFY THE
DEPRIVATION OF A PERSON'S PHYSICAL LIBERTY.  SEE, E.G., COHEN V.
CALIFORNIA, 403 U.S. 15, 24 - 26; COATES V. CITY OF CINCINNATI, 402
U.S. 611, 615; STREET V. NEW YORK, 394 U.S. 576, 592; CF. U.S. DEPT. OF
AGRICULTURE V. MORENO, 413 U.S. 528, 534.  576 

IN SHORT, A STATE CANNOT CONSTITUTIONALLY CONFINE WITHOUT MORE A
NONDANGEROUS INDIVIDUAL WHO IS CAPABLE OF SURVIVING SAFELY IN FREEDOM
BY HIMSELF OR WITH THE HELP OF WILLING AND RESPONSIBLE FAMILY MEMBERS
OR FRIENDS.  SINCE THE JURY FOUND, UPON AMPLE EVIDENCE, THAT O'CONNOR,
AS AN AGENT OF THE STATE, KNOWINGLY DID SO CONFINE DONALDSON, IT
PROPERLY CONCLUDED THAT O'CONNOR VIOLATED DONALDSON'S CONSTITUTIONAL
RIGHT TO FREEDOM. 

        III 

O'CONNOR CONTENDS THAT IN ANY EVENT HE SHOULD NOT BE HELD PERSONALLY
LIABLE FOR MONETARY DAMAGES BECAUSE HIS DECISIONS WERE MADE IN "GOOD
FAITH."  SPECIFICALLY, O'CONNOR ARGUES THAT HE WAS ACTING PURSUANT TO
STATE LAW WHICH, HE BELIEVED, AUTHORIZED CONFINEMENT OF THE MENTALLY
ILL EVEN WHEN THEIR RELEASE WOULD NOT COMPROMISE THEIR SAFETY OR
CONSTITUTE A DANGER TO OTHERS, AND THAT HE COULD NOT REASONABLY HAVE
BEEN EXPECTED TO KNOW THAT THE STATE LAW AS HE UNDERSTOOD IT WAS
CONSTITUTIONALLY INVALID.  A PROPOSED INSTRUCTION TO THIS EFFECT WAS
REJECTED BY THE DISTRICT COURT.  /11/     THE DISTRICT COURT DID
INSTRUCT THE JURY, WITHOUT OBJECTION, THAT MONETARY DAMAGES COULD NOT
BE ASSESSED AGAINST O'CONNOR IF HE HAD BELIEVED REASONABLY AND IN GOOD
FAITH THAT DONALDSON'S CONTINUED CONFINEMENT WAS "PROPER," AND THAT
PUNITIVE DAMAGES COULD BE AWARDED ONLY IF O'CONNOR HAD ACTED
"MALICIOUSLY OR WANTONLY OR OPPRESSIVELY."  577 THE COURT OF APPEALS
APPROVED THOSE INSTRUCTIONS.  BUT THAT COURT DID NOT CONSIDER WHETHER
IT WAS ERROR FOR THE TRIAL JUDGE TO REFUSE THE ADDITIONAL INSTRUCTION
CONCERNING O'CONNOR'S CLAIMED RELIANCE ON STATE LAW AS AUTHORIZATION
FOR DONALDSON'S CONTINUED CONFINEMENT.  FURTHER, NEITHER THE DISTRICT
COURT NOR THE COURT OF APPEALS ACTED WITH THE BENEFIT OF THIS COURT'S
MOST RECENT DECISION ON THE SCOPE OF THE QUALIFIED IMMUNITY POSSESSED
BY STATE OFFICIALS UNDER 42 U.S.C. 1983.  WOOD V. STRICKLAND, 420 U.S.
308. 

UNDER THAT DECISION, THE RELEVANT QUESTION FOR THE JURY IS WHETHER
O'CONNOR "KNEW OR REASONABLY SHOULD HAVE KNOWN THAT THE ACTION HE TOOK
WITHIN HIS SPHERE OF OFFICIAL RESPONSIBILITY WOULD VIOLATE THE
CONSTITUTIONAL RIGHTS OF (DONALDSON), OR IF HE TOOK THE ACTION WITH THE
MALICIOUS INTENTION TO CAUSE A DEPRIVATION OF CONSTITUTIONAL RIGHTS OR
OTHER INJURY TO (DONALDSON)."  ID., AT 322.  SEE ALSO SCHEUER V.
RHODES, 416 U.S. 232, 247 - 248; WOOD V. STRICKLAND, SUPRA, AT 330
(OPINION OF POWELL, J.).  FOR PURPOSES OF THIS QUESTION, AN OFFICIAL
HAS, OF COURSE, NO DUTY TO ANTICIPATE UNFORESEEABLE CONSTITUTIONAL
DEVELOPMENTS.  WOOD V. STRICKLAND, SUPRA, AT 322. 

ACCORDINGLY, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND THE CASE TO ENABLE THAT COURT TO CONSIDER, IN LIGHT OF WOOD V.
STRICKLAND, WHETHER THE DISTRICT JUDGE'S FAILURE TO INSTRUCT WITH
REGARD TO THE EFFECT OF O'CONNOR'S CLAIMED RELIANCE ON STATE LAW
RENDERED INADEQUATE THE INSTRUCTIONS AS TO O'CONNOR'S LIABILITY FOR
COMPENSATORY AND PUNITIVE DAMAGES.  /12/

                                  IT IS SO ORDERED. 

/1/ DONALDSON'S ORIGINAL COMPLAINT WAS FILED AS A CLASS ACTION ON
BEHALF OF HIMSELF AND ALL OF HIS FELLOW PATIENTS IN AN ENTIRE
DEPARTMENT OF THE FLORIDA STATE HOSPITAL AT CHATTAHOOCHEE.  IN ADDITION
TO A DAMAGES CLAIM, DONALDSON'S COMPLAINT ALSO ASKED FOR HABEAS CORPUS
RELIEF ORDERING HIS RELEASE, AS WELL AS THE RELEASE OF ALL MEMBERS OF
THE CLASS.  DONALDSON FURTHER SOUGHT DECLARATORY AND INJUNCTIVE RELIEF
REQUIRING THE HOSPITAL TO PROVIDE ADEQUATE PSYCHIATRIC TREATMENT. 

AFTER DONALDSON'S RELEASE AND AFTER THE DISTRICT COURT DISMISSED THE
ACTION AS A CLASS SUIT, DONALDSON FILED AN AMENDED COMPLAINT, REPEATING
HIS CLAIM FOR COMPENSATORY AND PUNITIVE DAMAGES.  ALTHOUGH THE AMENDED
COMPLAINT RETAINED THE PRAYER FOR DECLARATORY AND INJUNCTIVE RELIEF,
THAT REQUEST WAS ELIMINATED FROM THE CASE PRIOR TO TRIAL.  SEE 493 F.
2D 507, 512 - 513. 

/2/ THE JUDICIAL COMMITMENT PROCEEDINGS WERE PURSUANT TO 394.22 (11)
OF THE STATE PUBLIC HEALTH CODE, WHICH PROVIDED: 

"WHENEVER ANY PERSON WHO HAS BEEN ADJUDGED MENTALLY INCOMPETENT
REQUIRES CONFINEMENT OR RESTRAINT TO PREVENT SELF-INJURY OR VIOLENCE TO
OTHERS, THE SAID JUDGE SHALL DIRECT THAT SUCH PERSON BE FORTHWITH
DELIVERED TO A SUPERINTENDENT OF A FLORIDA STATE HOSPITAL, FOR THE
MENTALLY ILL, AFTER ADMISSION HAS BEEN AUTHORIZED UNDER REGULATIONS
APPROVED BY THE BOARD OF COMMISSIONERS OF STATE INSTITUTIONS, FOR CARE,
MAINTENANCE, AND TREATMENT, AS PROVIDED IN SECTIONS 394.09, 394.24,
394.25, 394.26 AND 394.27, OR MAKE SUCH OTHER DISPOSITION OF HIM AS HE
MAY BE PERMITTED BY LAW...."  FLA.  LAWS 1955 - 1956 EXTRA.  SESS., C.
31403, 1, P. 62. 

DONALDSON HAD BEEN ADJUDGED "INCOMPETENT" SEVERAL DAYS EARLIER UNDER
394.22 (1), WHICH PROVIDED FOR SUCH A FINDING AS TO ANY PERSON WHO WAS
"INCOMPETENT BY REASON OF MENTAL ILLNESS, SICKNESS, DRUNKENNESS,
EXCESSIVE USE OF DRUGS, INSANITY, OR OTHER MENTAL OR PHYSICAL
CONDITION, SO THAT HE IS INCAPABLE OF CARING FOR HIMSELF OR MANAGING
HIS PROPERTY, OR IS LIKELY TO DISSIPATE OR LOSE HIS PROPERTY OR BECOME
THE VICTIM OF DESIGNING PERSONS, OR INFLICT HARM ON HIMSELF OR
OTHERS...."  FLA.  GEN. LAWS 1955, C. 29909, 3, P. 831. 

IT WOULD APPEAR THAT 394.22(11)(A) CONTEMPLATED THAT INVOLUNTARY
COMMITMENT WOULD BE IMPOSED ONLY ON THOSE "INCOMPETENT" PERSONS WHO
"REQUIRED) CONFINEMENT OR RESTRAINT TO PREVENT SELF-INJURY OR VIOLENCE
TO OTHERS."  BUT THIS IS NOT CERTAIN, FOR 394.22(11)(C) PROVIDED THAT
THE JUDGE COULD ADJUDICATE THE PERSON A "HARMLESS INCOMPETENT" AND
RELEASE HIM TO A GUARDIAN UPON A FINDING THAT HE DID "NOT REQUIRE
CONFINEMENT OR RESTRAINT TO PREVENT SELF-INJURY OR VIOLENCE TO OTHERS
AND THAT TREATMENT IN THE FLORIDA STATE HOSPITAL IS UNNECESSARY OR
WOULD BE WITHOUT BENEFIT TO SUCH PERSON...."  FLA.  GEN. LAWS 1955, C.
29909, 3, P. 835 (EMPHASIS ADDED).  IN THIS REGARD, IT IS NOTEWORTHY
THAT DONALDSON'S "ORDER FOR DELIVERY OF MENTALLY INCOMPETENT" TO THE
FLORIDA STATE HOSPITAL PROVIDED THAT HE REQUIRED "CONFINEMENT OR
RESTRAINT TO PREVENT SELF-INJURY OR VIOLENCE TO OTHERS, OR TO INSURE
PROPER TREATMENT."  (EMPHASIS ADDED.)  AT ANY RATE, THE FLORIDA
COMMITMENT STATUTE PROVIDED NO JUDICIAL PROCEDURE WHEREBY ONE STILL
INCOMPETENT COULD SECURE HIS RELEASE ON THE GROUND THAT HE WAS NO
LONGER DANGEROUS TO HIMSELF OR OTHERS. 

WHETHER THE FLORIDA STATUTE PROVIDED A "RIGHT TO TREATMENT" FOR
INVOLUNTARILY COMMITTED PATIENTS IS ALSO OPEN TO DISPUTE.  UNDER 394.22
(11)(A), COMMITMENT "TO PREVENT SELF-INJURY OR VIOLENCE TO OTHERS" WAS
"FOR CARE, MAINTENANCE, AND TREATMENT."  RECENTLY FLORIDA HAS TOTALLY
REVAMPED ITS CIVIL COMMITMENT LAW AND NOW PROVIDES A STATUTORY RIGHT TO
RECEIVE INDIVIDUAL MEDICAL TREATMENT.  FLA. STAT. ANN. 394.459 (1973). 

/3/ THE SOLE STATUTORY PROCEDURE FOR RELEASE REQUIRED A JUDICIAL
REINSTATEMENT OF A PATIENT'S "MENTAL COMPETENCY."  PUBLIC HEALTH CODE
394.22 (15) AND (16), FLA. GEN. LAWS 1955, C. 29909, 3, PP. 838 - 841. 
BUT THIS PROCEDURE COULD BE INITIATED BY THE HOSPITAL STAFF.  INDEED,
IT WAS AT THE STAFF'S INITIATIVE THAT DONALDSON WAS FINALLY RESTORED TO
COMPETENCY, AND LIBERTY, ALMOST IMMEDIATELY AFTER O'CONNOR RETIRED FROM
THE SUPERINTENDENCY. 

IN ADDITION, WITNESSES TESTIFIED THAT THE HOSPITAL HAD ALWAYS HAD
ITS OWN PROCEDURE FOR RELEASING PATIENTS--FOR "TRIAL VISITS," "HOME
VISITS," "FURLOUGHS," OR "OUT OF STATE DISCHARGES"--EVEN THOUGH THE
PATIENTS HAD NOT BEEN JUDICIALLY RESTORED TO COMPETENCY.  THOSE CHOSE
CONDITIONAL RELEASES OFTEN BECAME PERMANENT, AND THE HOSPITAL MERELY
CLOSED ITS BOOKS ON THE PATIENT.  O'CONNOR DID NOT DENY AT TRIAL THAT
HE HAD THE POWER TO RELEASE PATIENTS; HE CONCEDED THAT IT WAS HIS
"DUTY" AS SUPERINTENDENT OF THE HOSPITAL "TO DETERMINE WHETHER THAT
PATIENT HAVING ONCE REACHED THE HOSPITAL WAS IN SUCH CONDITION AS TO
REQUEST THAT HE BE CONSIDERED FOR RELEASE FROM THE HOSPITAL." 

/4/ THERE WAS SOME EVIDENCE THAT DONALDSON, WHO IS A CHRISTIAN
SCIENTIST, ON OCCASION REFUSED TO TAKE MEDICATION.  THE TRIAL JUDGE
INSTRUCTED THE JURY NOT TO AWARD DAMAGES FOR ANY PERIOD OF CONFINEMENT
DURING WHICH DONALDSON HAD DECLINED TREATMENT. 

/5/ AT THE CLOSE OF DONALDSON'S CASE IN CHIEF, O'CONNOR MOVED FOR A
DIRECTED VERDICT ON THE GROUND THAT STATE LAW AT THE TIME OF
DONALDSON'S CONFINEMENT AAUTHORIZED INSTITUTIONALIZATION OF THE
MENTALLY ILL EVEN IF THEY POSED NO DANGER TO THEMSELVES OR OTHERS. 
THIS MOTION WAS DENIED.  AT THE CLOSE OF ALL THE EVIDENCE, O'CONNOR
ASKED THAT THE JURY BE INSTRUCTED THAT "IF DEFENDANTS ACTED PURSUANT TO
A STATUTE WHICH WAS NOT DECLARED UNCONSTITUTIONAL AT THE TIME, THEY
CANNOT BE HELD ACCOUNTABLE FOR SUCH ACTION."  THE DISTRICT COURT
DECLINED TO GIVE THIS REQUESTED INSTRUCTION. 

/6/ THE DISTRICT COURT DEFINED TREATMENT AS FOLLOWS: 

"YOU ARE INSTRUCTED THAT A PERSON WHO IS INVOLUNTARILY CIVILLY
COMMITTED TO A MENTAL HOSPITAL DOES HAVE A CONSTITUTIONAL RIGHT TO
RECEIVE SUCH TREATMENT AS WILL GIVE HIM A REALISTIC OPPORTUNITY TO BE
CURED OR TO IMPROVE HIS MENTAL CONDITION."  (EMPHASIS ADDED.)  O'CONNOR
ARGUES THAT THIS STATEMENT SUGGESTS THAT A MENTAL PATIENT HAS A RIGHT
TO TREATMENT EVEN IF CONFINED BY REASON OF DANGEROUSNESS TO HIMSELF OR
OTHERS.  BUT THIS IS TO TAKE THE ABOVE PARAGRAPH OUT OF CONTEXT, FOR IT
IS BRACKETED BY PARAGRAPHS MAKING CLEAR THE TRIAL JUDGE'S THEORY THAT
TREATMENT IS CONSTITUTIONALLY REQUIRED ONLY IF MENTAL ILLNESS ALONE,
RATHER THAN DANGER TO SELF OR OTHERS, IS THE REASON FOR CONFINEMENT. 
IF O'CONNOR HAD THOUGHT THE INSTRUCTIONS AMBIGUOUS ON THIS POINT, HE
COULD HAVE OBJECTED TO THEM AND REQUESTED A CLARIFICATION.  HE DID NOT
DO SO.  WE ACCORDINGLY HAVE NO OCCASION HERE TO DECIDE WHETHER PERSONS
COMMITTED ON GROUNDS OF DANGEROUSNESS ENJOY A "RIGHT TO TREATMENT." 

IN PERTINENT PART, THE INSTRUCTIONS READ AS FOLLOWS: 

"THE PLAINTIFF CLAIMS IN BRIEF THAT THROUGHOUT THE PERIOD OF HIS
HOSPITALIZATION HE WAS NOT MENTALLY ILL OR DANGEROUS TO HIMSELF OR
OTHERS, AND CLAIMS FURTHER THAT IF HE WAS MENTALLY ILL, OR IF
DEFENDANTS BELIEVED HE WAS MENTALLY ILL, DEFENDANTS WITHHELD FROM HIM
THE TREATMENT NECESSARY TO IMPROVE HIS MENTAL CONDITION. 

"THE DEFENDANTS CLAIM, IN BRIEF, THAT PLAINTIFF'S DETENTION WAS
LEGAL AND PROPER, OR IF HIS DETENTION WAS NOT LEGAL AND PROPER, IT WAS
THE RESULT OF MISTAKE, WITHOUT MALICIOUS INTENT. 

"IN ORDER TO PROVE HIS CLAIM UNDER THE CIVIL RIGHTS ACT, THE BURDEN
IS UPON THE PLAINTIFF IN THIS CASE TO ESTABLISH BY A PREPONDERANCE OF
THE EVIDENCE IN THIS CASE THE FOLLOWING FACTS: 

"THAT THE DEFENDANTS CONFINED PLAINTIFF AGAINST HIS WILL, KNOWING
THAT HE WAS NOT MENTALLY ILL OR DANGEROUS OR KNOWING THAT IF MENTALLY
ILL HE WAS NOT RECEIVING TREATMENT FOR HIS ALLEGED MENTAL ILLNESS. 

"(THAT THE DEFENDANTS' ACTS AND CONDUCT DEPRIVED THE PLAINTIFF OF
HIS FEDERAL CONSTITUTIONAL RIGHT NOT TO BE DENIED OR DEPRIVED OF HIS
LIBERTY WITHOUT DUE PROCESS OF LAW AS THAT PHRASE IS DEFINED AND
EXPLAINED IN THESE INSTRUCTIONS . . . . 

"YOU ARE INSTRUCTED THAT A PERSON WHO IS INVOLUNTARILY CIVILLY
COMMITTED TO A MENTAL HOSPITAL DOES HAVE A CONSTITUTIONAL RIGHT TO
RECEIVE SUCH TREATMENT AS WILL GIVE HIM A REALISTIC OPPORTUNITY TO BE
CURED OR TO IMPROVE HIS MENTAL CONDITION. 

"NOW, THE PURPOSE OF INVOLUNTARY HOSPITALIZATION IS TREATMENT AND
NOT MERE CUSTODIAL CARE OR PUNISHMENT IF A PATIENT IS NOT A DANGER TO
HIMSELF OR OTHERS.  WITHOUT SUCH TREATMENT THERE IS NO JUSTIFICATION
FROM A CONSTITUTIONAL STAND-POINT FOR CONTINUED CONFINEMENT UNLESS YOU
SHOULD ALSO FIND THAT THE PLAINTIFF WAS DANGEROUS EITHER TO HIMSELF OR
OTHERS." 

/7/ THE TRIAL JUDGE HAD INSTRUCTED THAT PUNITIVE DAMAGES SHOULD BE
AWARDED ONLY IF "THE ACT OR OMISSION OF THE DEFENDANT OR DEFENDANTS
WHICH PROXIMATELY CAUSED INJURY TO THE PLAINTIFF WAS MALICIOUSLY OR
WANTONLY OR OPPRESSIVELY DONE." 

/8/ GIVEN THE JURY INSTRUCTIONS, SEE N. 6 SUPRA, IT IS POSSIBLE THAT
THE JURY WENT SO FAR AS TO FIND THAT O'CONNOR KNEW NOT ONLY THAT
DONALDSON WAS HARMLESS TO HIMSELF AND OTHERS BUT ALSO THAT HE WAS NOT
MENTALLY ILL AT ALL.  IF IT SO FOUND, THE JURY WAS PERMITTED BY THE
INSTRUCTIONS TO RULE AGAINST O'CONNOR REGARDLESS OF THE NATURE OF THE
"TREATMENT" PROVIDED.  IF WE WERE TO CONSTRUE THE JURY'S VERDICT IN
THAT FASHION, THERE WOULD REMAIN NO SUBSTANTILAL ISSUE IN THIS CASE:
THAT A WHOLLY SANE AND INNOCENT PERSON HAS A CONSTITUTIONAL RIGHT NOT
TO BE PHYSICALLY CONFINED BY THE STATE WHEN HIS FREEDOM WILL POSE A
DANGER NEITHER TO HIMSELF NOR TO OTHERS CANNOT BE SERIOUSLY DOUBTED. 

/9/ THE JUDGE'S INSTRUCTIONS USED THE PHRASE "DANGEROUS TO
HIMSELF."  OF COURSE, EVEN IF THERE IS NO FORESEEABLE RISK OF SELF
INJURY OR SUICIDE, A PERSON IS LITERALLY "DANGEROUS TO HIMSELF" IF FOR
PHYSICAL OR OTHER REASONS HE IS HELPLESS TO AVOID THE HAZARDS OF
FREEDOM EITHER THROUGH HIS OWN EFFORTS OR WITH THE AID OF WILLING
FAMILY MEMBERS OR FRIENDS.  WHILE IT MIGHT BE ARGUED THAT THE JUDGE'S
INSTRUCTIONS COULD HAVE BEEN MORE DETAILED ON THIS POINT, O'CONNOR
RAISED NO OBJECTION TO THEM, PRESUMABLY BECAUSE THE EVIDENCE CLEARLY
SHOWED THAT DONALDSON WAS NOT "DANGEROUS TO HIMSELF" HOWEVER BROADLY
THAT PHRASE MIGHT BE DEFINED. 

/10/ O'CONNOR ARGUES THAT, DESPITE THE JURY'S VERDICT, THE COURT
MUST ASSUME THAT DONALDSON WAS RECEIVING TREATMENT SUFFICIENT TO
JUSTIFY HIS CONFINEMENT, BECAUSE THE ADEQUACY OF TREATMENT IS A
"NONJUSTICIABLE" QUESTION THAT MUST BE LEFT TO THE DISCRETION OF THE
PSYCHIATRIC PROFESSION.  THAT ARGUMENT IS UNPERSUASIVE.  WHERE
"TREATMENT" IS THE SOLE ASSERTED GROUND FOR DEPRIVING A PERSON OF
LIBERTY, IT IS PLAINLY UNACCEPTABLE TO SUGGEST THAT THE COURTS ARE
POWERLESS TO DETERMINE WHETHER THE ASSERTED GROUND IS PRESENT.  SEE
JACKSON V. INDIANA, 406 U.S. 715.  NEITHER PARTY OBJECTED TO THE JURY
INSTRUCTION DEFINING TREATMENT.  THERE IS, ACCORDINGLY, NO OCCASION IN
THIS CASE TO DECIDE WHETHER THE PROVISION OF TREATMENT, STANDING ALONE,
CAN EVER CONSTITUTIONALLY JUSTIFY INVOLUNTARY CONFINEMENT OR, IF IT
CAN, HOW MUCH OR WHAT KIND OF TREATMENT WOULD SUFFICE FOR THAT
PURPOSE.  IN ITS PRESENT POSTURE THIS CASE INVOLVES NOT INVOLUNTARY
TREATMENT BUT SIMPLY INVOLUNTARY CUSTODIAL CONFINEMENT. 

/11/ SEE N. 5, SUPRA.  DURING HIS YEARS OF CONFINEMENT, DONALDSON
UNSUCCESSFULLY PETITIONED THE STATE AND FEDERAL COURTS FOR RELEASE FROM
THE FLORIDA STATE HOSPITAL ON A NUMBER OF OCCASIONS.  NONE OF THESE
CLAIMS WAS EVER RESOLVED ON ITS MERITS, AND NO EVIDENTIARY HEARINGS
WERE EVER HELD.  O'CONNOR HAS NOT CONTENDED THAT HE RELIED ON THESE
UNSUCCESSFUL COURT ACTIONS AS AN INDEPENDENT INTERVENING REASON FOR
CONTINUING DONALDSON'S CONFINEMENT, AND NO INSTRUCTIONS ON THIS SCORE
WERE REQUESTED. 

/12/ UPON REMAND, THE COURT OF APPEALS IS TO CONSIDER ONLY THE
QUESTION WHETHER O'CONNOR IS TO BE HELD LIABLE FOR MONETARY DAMAGES FOR
VIOLATING DONALDSON'S CONSTITUTIONAL RIGHT TO LIBERTY.  THE JURY FOUND,
ON SUBSTANTIAL EVIDENCE AND UNDER ADEQUATE INSTRUCTIONS, THAT O'CONNOR
DEPRIVED DONALDSON WHO WAS DANGEROUS NEITHER TO HIMSELF NOR TO OTHERS
AND WAS PROVIDED NO TREATMENT, OF THE CONSTITUTIONAL RIGHT TO LIBERTY. 
CF. N. 8, SUPRA.  THAT FINDING NEEDS NO FURTHER CONSIDERATION.  IF THE
COURT OF APPEALS HOLDS THAT A REMAND TO THE DISTRICT COURT IS
NECESSARY, THE ONLY ISSUE TO BE DETERMINED THAT COURT WILL BE WHETHER
O'CONNOR IS IMMUNE FROM LIABILITY FOR MONETARY DAMAGES.     OF
NECESSITY OUR DECISION VACATING THE JUDGMENT OF THE COURT OF APPEALS
DEPRIVES THAT COURT'S OPINION OF PRECEDENTIAL EFFECT, LEAVING THIS
COURT'S OPINION AND JUDGMENT AS THE SOLE LAW OF THE CASE.  SEE UNITED
STATES V. MUNSINGWEAR, 340 U.S. 36.  MR. CHIEF JUSTICE BURGER,
CONCURRING. 

ALTHOUGH I JOIN THE COURT'S OPINION AND JUDGMENT IN THIS CASE, IT
SEEMS TO ME THAT SEVERAL FACTORS MERIT MORE EMPHASIS THAN IT GIVES
THEM.  I THEREFORE ADD THE FOLLOWING REMARKS. 

        I 

WITH RESPECT TO THE REMAND TO THE COURT OF APPEALS ON THE ISSUE OF
OFFICIAL IMMUNITY FROM LIABILITY FOR MONETARY DAMAGES, /1/ IT SEEMS TO
ME NOT ENTIRELY IRRELEVANT THAT THERE WAS SUBSTANTIAL EVIDENCE THAT
DONALDSON CONSISTENTLY REFUSED TREATMENT THAT WAS OFFERED TO HIM,
CLAIMING THAT HE WAS NOT MENTALLY ILL AND NEEDED NO TREATMENT.  /2/
THE COURT APPROPRIATELY TAKES NOTICE OF THE UNCERTAINTIES OF
PSYCHIATRIC DIAGNOSIS AND THERAPY, AND THE REPORTED CASES ARE REPLETE
WITH EVIDENCE OF THE DIVERGENCE OF MEDICAL OPINION IN THIS VEXING
AREA.  E.G., GREENWOOD V. UNITED STATES, 350 U.S. 366, 375 (1956).  SEE
ALSO DROPE V. MISSOURI, 420 U.S. 162 (1975).  NONETHELESS, ONE OF THE
FEW AREAS OF AGREEMENT AMONG BEHAVIORAL SPECIALISTS IS THAT AN
UNCOOPERATIVE PATIENT CANNOT BENEFIT FROM THERAPY AND THAT THE FIRST
STEP IN EFFECTIVE TREATMENT IS ACKNOWLEDGMENT BY THE PATIENT THAT HE IS
SUFFERING FROM AN ABNORMAL CONDITION.  SEE E.G. KATZ, THE RIGHT TO
TREATMENT--AN ENCHANTING LEGAL FICTION?  36 U. CHI.  L. REV. 755, 768 -
769 (1969).  DONALDSON'S ADAMANT REFUSAL TO DO SO SHOULD BE TAKEN INTO
ACCOUNT IN CONSIDERING PETITIONER'S GOOD-FAITH DEFENSE. 

PERHAPS MORE IMPORTANT TO THE ISSUE OF IMMUNITY IS A FACTOR REFERRED
TO ONLY OBLIQUELY IN THE COURT'S OPINION.  ON NUMEROUS OCCASIONS DURING
THE PERIOD OF HIS CONFINEMENT DONALDSON UNSUCCESSFULLY SOUGHT RELEASE
IN THE FLORIDA COURTS; INDEED, THE LAST OF THESE PROCEEDINGS WAS
TERMINATED ONLY A FEW MONTHS PRIOR TO THE BRINGING OF THIS ACTION.  SEE
234 SO. 2D 114 (1969), CERT. DENIED, 400 U.S. 869 (1970).  WHATEVER THE
REASONS FOR THE STATE COURTS' REPEATED DENIALS OF RELIEF, AND
REGARDLESS OF WHETHER THEY CORRECTLY RESOLVED THE ISSUE TENDERED TO
THEM, PETITIONER AND THE OTHER MEMBERS OF THE MEDICAL STAFF AT FLORIDA
STATE HOSPITAL WOULD SURELY HAVE BEEN JUSTIFIED IN CONSIDERING EACH
SUCH JUDICIAL DECISION AS AN APPROVAL OF CONTINUED CONFINEMENT AND AN
INDEPENDENT INTERVENING REASON FOR CONTINUING DONALDSON'S CUSTODY. 
THUS, THIS FACT IS INESCAPABLY RELATED TO THE ISSUE OF IMMUNITY AND
MUST BE CONSIDERED BY THE COURT OF APPEALS ON REMAND AND, IF A NEW
TRIAL ON THIS ISSUE IS ORDERED, BY THE DISTRICT COURT.  /3/

        II 

AS THE COURT POINTS OUT, ANTE, AT 570 N. 6, THE DISTRICT COURT
INSTRUCTED THE JURY IN PART THAT "'A PERSON WHO IS INVOLUNTARILY
CIVILLY COMMITTED TO A MENTAL HOSPITAL DOES HAVE A CONSTITUTIONAL RIGHT
TO RECEIVE SUCH TREATMENT AS WILL GIVE HIM A REALISTIC OPPORTUNITY TO
BE CURED" (EMPHASIS ADDED), AND THE COURT OF APPEALS UNEQUIVOCALLY
APPROVED THIS PHRASE, STANDING ALONE, AS A CORRECT STATEMENT OF THE
LAW.  493 F. 2D 507, 520 (CA5 1974).  THE COURT'S OPINION PLAINLY GIVES
NO APPROVAL TO THAT HOLDING AND MAKES CLEAR THAT IT BINDS NEITHER THE
PARTIES TO THIS CASE NOR THE COURTS OF THE FIFTH CIRCUIT.  SEE ANTE, AT
577 - 578, N. 12.  MOREOVER, IN LIGHT OF ITS IMPORTANCE FOR FUTURE
LITIGATION IN THIS AREA, IT SHOULD BE EMPHASIZED THAT THE COURT OF
APPEALS' ANALYSIS HAS NO BASIS IN THE DECISIONS OF THIS COURT. 

        A 

THERE CAN BE NO DOUBT THAT INVOLUNTARY COMMITMENT TO A MENTAL
HOSPITAL, LIKE INVOLUNTARY CONFINEMENT OF AN INDIVIDUAL FOR ANY REASON,
IS A DEPRIVATION OF LIBERTY WHICH THE STATE CANNOT ACCOMPLISH WITHOUT
DUE PROCESS OF LAW.  SPECHT V. PATTERSON, 386 U.S. 605, 608 (1967). 
CF. IN RE GAULT, 387 U.S. 1, 12 - 13 (1967).  COMMITMENT MUST BE
JUSTIFIED ON THE BASIS OF A LEGITIMATE STATE INTEREST, AND THE REASONS
FOR COMMITTING A PARTICULAR INDIVIDUAL MUST BE ESTABLISHED IN AN
APPROPRIATE PROCEEDING.  EQUALLY IMPORTANT, CONFINEMENT MUST CEASE WHEN
THOSE REASONS NO LONGER EXIST.  SEE MCNEIL V. DIRECTOR, PATUXENT
INSTITUTION, 407 U.S. 245, 249 - 250 (1972); JACKSON V. INDIANA, 406
U.S. 715, 738 (1972). 

THE COURT OF APPEALS PURPORTED TO BE APPLYING THESE PRINCIPLES IN
DEVELOPING THE FIRST OF ITS THEORIES SUPPORTING A CONSTITUTIONAL RIGHT
TO TREATMENT.  581 IT FIRST IDENTIFIED WHAT IT PERCEIVED TO BE THE
TRADITIONAL BASES FOR CIVIL COMMITMENT--PHYSICAL DANGEROUSNESS TO
ONESELF OR OTHERS, OR A NEED FOR TREATMENT--AND STATED: 

"(WHERE, AS IN DONALDSON'S CASE, THE RATIONALE FOR CONFINEMENT IS
THE 'PARENS PATRIAE' RATIONALE THAT THE PATIENT IS IN NEED OF
TREATMENT, THE DUE PROCESS CLAUSE REQUIRES THAT MINIMALLY ADEQUATE
TREATMENT BE IN FACT PROVIDED.  . . . 'TO DEPRIVE ANY CITIZEN OF HIS OR
HER LIBERTY UPON THE ALTRUISTIC THEORY THAT THE CONFINEMENT IS FOR
HUMANE THERAPEUTIC REASONS AND THEN FAIL TO PROVIDE ADEQUATE TREATMENT
VIOLATES THE VERY FUNDAMENTALS OF DUE PROCESS.'"  493 F.2D, AT 521. 

THE COURT OF APPEALS DID NOT EXPLAIN ITS CONCLUSION THAT THE
RATIONALE FOR RESPONDENT'S COMMITMENT WAS THAT HE NEEDED TREATMENT. 
THE FLORIDA STATUTES IN EFFECT DURING THE PERIOD OF HIS CONFINEMENT DID
NOT REQUIRE THAT A PERSON WHO HAD BEEN ADJUDICATED INCOMPETENT AND
ORDERED COMMITTED EITHER BE PROVIDED WITH PSYCHIATRIC TREATMENT OR
RELEASED, AND THERE WAS NO SUCH CONDITION IN RESPONDENT'S ORDER OF
COMMITMENT.  CF. ROUSE V. CAMERON, 125 U.S. APP. D.C. 366, 373 F.2D 451
(1967).  MORE IMPORTANT, THE INSTRUCTIONS WHICH THE COURT OF APPEALS
READ AS ESTABLISHING AN ABSOLUTE CONSTITUTIONAL RIGHT TO TREATMENT DID
NOT REQUIRE THE JURY TO MAKE ANY FINDINGS REGARDING THE SPECIFIC
REASONS FOR RESPONDENT'S CONFINEMENT OR TO FOCUS UPON ANY RIGHTS HE MAY
HAVE HAD UNDER STATE LAW.  THUS, THE PREMISE OF THE COURT OF APPEALS'
FIRST THEORY MUST HAVE BEEN THAT, AT LEAST WITH RESPECT TO PERSONS WHO
ARE NOT PHYSICALLY DANGEROUS, A STATE HAS NO POWER TO CONFINE THE
MENTALLY ILL EXCEPT FOR THE PURPOSE OF PROVIDING THEM WITH TREATMENT. 

THAT PROPOSITION IS SURELY NOT DESCRIPTIVE OF THE POWER
TRADITIONALLY EXERCISED BY THE STATES IN THIS AREA.  HISTORICALLY, AND
FOR A CONSIDERABLE PERIOD OF TIME, SUBSIDIZED CUSTODIAL CARE IN PRIVATE
FOSTER HOMES OR BOARDING HOUSES WAS THE MOST BENIGN FORM OF CARE
PROVIDED INCOMPETENT OR MENTALLY ILL PERSONS FOR WHOM THE STATES
ASSUMED RESPONSIBILITY.  UNTIL WELL INTO THE 19TH CENTURY THE VAST
MAJORITY OF SUCH PERSON WERE SIMPLY RESTRAINED IN POORHOUSES,
ALMSHOUSES, OR JAILS.  SEE A. DEUTSCH, THE MENTALLY ILL IN AMERICA 38 -
54, 114 - 131 (2D ED. 1949).  THE FEW STATES THAT ESTABLISHED
INSTITUTIONS FOR THE MENTALLY ILL DURING THIS EARLY PERIOD WERE
CONCERNED PRIMARILY WITH PROVIDING A MORE HUMANE PLACE OF CONFINEMENT
AND ONLY SECONDARILY WITH "CURING" THE PERSONS SENT THERE.  SEE ID., AT
98 - 113. 

AS THE TREND TOWARD STATE CARE OF THE MENTALLY ILL EXPANDED,
EVENTUALLY LEADING TO THE PRESENT STATUTORY SCHEMES FOR PROTECTING SUCH
PERSONS, THE DUAL FUNCTIONS OF INSTITUTIONALIZATION CONTINUED TO BE
RECOGNIZED.  WHILE ONE OF THE GOALS OF THIS MOVEMENT WAS TO PROVIDE
MEDICAL TREATMENT TO THOSE WHO COULD BENEFIT FROM IT, IT WAS
ACKNOWLEDGED THAT THIS COULD NOT BE DONE IN ALL CASES AND THAT THERE
WAS A LARGE RANGE OF MENTAL ILLNESS FOR WHICH NO KNOWN "CURE" EXISTED. 
IN TIME, PROVIDING PLACES FOR THE CUSTODIAL CONFINEMENT OF THE SO
CALLED "DEPENDENT INSANE" AGAIN EMERGED AS THE MAJOR GOAL OF THE
STATE'S PROGRAMS IN THIS AREA AND REMAINED SO WELL INTO THIS CENTURY. 
SEE ID., AT 228 - 271; D. ROTHMAN, THE DISCOVERY OF THE ASYLUM 264 -
295 (1971). 

IN SHORT, THE IDEA THAT STATES MAY NOT CONFINE THE MENTALLY ILL
EXCEPT FOR THE PURPOSE OF PROVIDING THEM WITH TREATMENT IS OF VERY
RECENT ORIGIN, /4/ AND THERE IS NO HISTORICAL BASIS FOR IMPOSING SUCH A
LIMITATION ON STATE POWER.  ANALYSIS OF THE SOURCES OF THE CIVIL
COMMITMENT POWER LIKEWISE LENDS NO SUPPORT TO THAT NOTION.  THERE CAN
BE LITTLE DOUBT THAT IN THE EXERCISE OF ITS POLICE POWER A STATE MAY
CONFINE INDIVIDUALS SOLELY TO PROTECT SOCIETY FROM THE DANGERS OF
SIGNIFICANT ANTISOCIAL ACTS OR COMMUNICABLE DISEASE.  583 CF. MINNESOTA
EX REL. PEARSON V. PROBATE COURT, 309 U.S. 270 (1940); JACOBSON V.
MASSACHUSETTS, 197 U.S. 11, 25 - 29 (1905).  ADDITIONALLY, THE STATES
ARE VESTED WITH THE HISTORIC PARENS PATRIAE POWER, INCLUDING THE DUTY
TO PROTECT "PERSONS UNDER LEGAL DISABILITIES TO ACT FOR THEMSELVES." 
HAWAII V. STANDARD OIL CO., 405 U.S. 251, 257 (1972).  SEE ALSO MORMON
CHURCH V. UNITED STATES, 136 U.S. 1, 56 - 58 (1890).  THE CLASSIC
EXAMPLE OF THIS ROLE IS WHEN A STATE UNDERTAKES TO ACT AS "'THE GENERAL
GUARDIAN OF ALL INFANTS, IDIOTS, AND LUNATICS.'"  HAWAII V. STANDARD
OIL CO., SUPRA, AT 257, QUOTING 3 W. BLACKSTONE, COMMENTARIES *47. 

OF COURSE, AN INEVITABLE CONSEQUENCE OF EXERCISING THE PARENS
PATRIAE POWER IS THAT THE WARD'S PERSONAL FREEDOM WILL BE SUBSTANTIALLY
RESTRAINED, WHETHER A GUARDIAN IS APPOINTED TO CONTROL HIS PROPERTY, HE
IS PLACED IN THE CUSTODY OF A PRIVATE THIRD PARTY, OR COMMITTED TO AN
INSTITUTION.  THUS, HOWEVER THE POWER IS IMPLEMENTED, DUE PROCESS
REQUIRES THAT IT NOT BE INVOKED INDISCRIMINATELY.  AT A MINIMUM, A
PARTICULAR SCHEME FOR PROTECTION OF THE MENTALLY ILL MUST REST UPON A
LEGISLATIVE DETERMINATION THAT IT IS COMPATIBLE WITH THE BEST INTERESTS
OF THE AFFECTED CLASS AND THAT ITS MEMBERS ARE UNABLE TO ACT FOR
THEMSELVES.  CF. MORMON CHURCH V. UNITED STATES, SUPRA.  MOREOVER, THE
USE OF ALTERNATIVE FORMS OF PROTECTION MAY BE MOTIVATED BY DIFFERENT
CONSIDERATIONS, AND THE JUSTIFICATIONS FOR ONE MAY NOT BE INVOKED TO
RATIONALIZE ANOTHER.  CF. JACKSON V. INDIANA, 406 U.S., AT 737 - 738. 
SEE ALSO AMERICAN VAR FOUNDATION, THE MENTALLY DISABLED AND THE LAW 254
- 255 (S. BRAKEL & R. ROCK ED. 1971). 

HOWEVER, THE EXISTENCE OF SOME DUE PROCESS LIMITATIONS ON THE PARENS
PATRIAE POWER DOES NOT JUSTIFY THE FURTHER CONCLUSION THAT IT MAY BE
EXERCISED TO CONFINE A MENTALLY ILL PERSON ONLY IF THE PURPOSE OF THE
CONFINEMENT IS TREATMENT.  584 DESPITE MANY RECENT ADVANCES IN MEDICAL
KNOWLEDGE, IT REMAINS A STUBBORN FACT THAT THERE ARE MANY FORMS OF
MENTAL ILLNESS WHICH ARE NOT UNDERSTOOD, SOME WHICH ARE UNTREATABLE IN
THE SENSE THAT NO EFFECTIVE THERAPY HAS YET BEEN DISCOVERED FOR THEM,
AND THAT RATES OF "CURE" ARE GENERALLY LOW.  SEE SCHWITZGEBEL, THE
RIGHT TO EFFECTIVE MENTAL TREATMENT, 62 CALIF. L. REV. 936, 941 - 948
(1974).  THERE CAN BE LITTLE RESPONSIBLE DEBATE REGARDING "THE
UNCERTAINTY OF DIAGNOSIS IN THIS FIELD AND THE TENTATIVENESS OF
PROFESSIONAL JUDGMENT."  GREENWOOD V. UNITED STATES, 350 U.S., AT 375. 
SEE ALSO ENNIS & LITWACK, PSYCHIATRY AND THE PRESUMPTION OF EXPERTISE:
FLIPPING COINS IN THE COURTROOM, 62 CALIF. L. REV. 693, 697 - 719
(1974).  /5/ SIMILARLY, AS PREVIOUSLY OBSERVED, IT IS UNIVERSALLY
RECOGNIZED AS FUNDAMENTAL TO EFFECTIVE THERAPY THAT THE PATIENT
ACKNOWLEDGE HIS ILLNESS AND COOPERATE WITH THOSE ATTEMPTING TO GIVE
TREATMENT; YET THE FAILURE OF A LARGE PROPORTION OF MENTALLY ILL
PERSONS TO DO SO IS A COMMON PHENOMENON.  SEE KATZ, SUPRA, 36 U. CHI. 
L. REV., AT 768 - 769.  IT MAY BE THAT SOME PERSONS IN EITHER OF THESE
CATEGORIES, /6/ AND THERE MAY BE OTHERS, ARE UNABLE TO FUNCTION IN
SOCIETY AND WILL SUFFER REAL HARM TO THEMSELVES UNLESS PROVIDED WITH
CARE IN A SHELTERED ENVIRONMENT.  SEE, E.G., LAKE V. CAMERON, 124 U.S.
APP. D.C. 264, 270 - 271, 364 F. 2D 657, 663 - 664 (1966) (DISSENTING
OPINION).  585 AT THE VERY LEAST, I AM NOT ABLE TO SAY THAT A STATE
LEGISLATURE IS POWERLESS TO MAKE THAT KIND OF JUDGMENT.  SEE GREENWOOD
V. UNITED STATES, SUPRA.

B 

ALTERNATIVELY, IT HAS BEEN ARGUED THAT A FOURTEENTH AMENDMENT RIGHT
TO TREATMENT FOR INVOLUNTARILY CONFINED MENTAL PATIENTS DERIVES FROM
THE FACT THAT MANY OF THE SAFEGUARDS OF THE CRIMINAL PROCESS ARE NOT
PRESENT IN CIVIL COMMITMENT.  THE COURT OF APPEALS DESCRIBED THIS
THEORY AS FOLLOWS: 

"(A) DUE PROCESS RIGHT TO TREATMENT IS BASED ON THE PRINCIPLE THAT
WHEN THE THREE CENTRAL LIMITATIONS ON THE GOVERNMENT'S POWER TO DETAIN-
THAT DETENTION BE IN RETRIBUTION FOR A SPECIFIC OFFENSE; THAT IT BE
LIMITED TO A FIXED TERM; AND THAT IT BE PERMITTED AFTER A PROCEEDING
WHERE THE FUNDAMENTAL PROCEDURAL SAFEGUARDS ARE OBSERVED--ARE ABSENT,
THERE MUST BE A QUID PRO QUO EXTENDED BY THE GOVERNMENT TO JUSTIFY
CONFINEMENT.  AND THE QUID PRO QUO MOST COMMONLY RECOGNIZED IS THE
PROVISION OF REHABILITATIVE TREATMENT."  493 F. 2D, AT 522.  TO THE
EXTENT THAT THIS THEORY MAY BE READ TO PERMIT A STATE TO CONFINE AN
INDIVIDUAL SIMPLY BECAUSE IT IS WILLING TO PROVIDE TREATMENT,
REGARDLESS OF THE SUBJECT'S ABILITY TO FUNCTION IN SOCIETY, IT RAISES
THE GRAVEST OF CONSTITUTIONAL PROBLEMS, AND I HAVE NO DOUBT THE COURT
OF APPEALS WOULD AGREE ON THIS SCORE.  AS A JUSTIFICATION FOR A
CONSTITUTIONAL RIGHT TO SUCH TREATMENT, THE QUID PRO QUO THEORY SUFFERS
FROM EQUALLY SERIOUS DEFECTS. 

IT IS TOO WELL ESTABLISHED TO REQUIRE EXTENDED DISCUSSION THAT DUE
PROCESS IS NOT AN INFLEXIBLE CONCEPT.  RATHER, ITS REQUIREMENTS ARE
DETERMINED IN PARTICULAR INSTANCES BY IDENTIFYING AND ACCOMMODATING THE
INTERESTS OF THE INDIVIDUAL AND SOCIETY.  586 SEE, E.G., MORRISSEY V.
BREWER, 408 U.S. 471, 480 - 484 (1972); MCNEIL V. DIRECTOR, PATUXENT
INSTITUTION, 407 U.S., AT 249 - 250; MCKEIVER V. PENNSYLVANIA, 403 U.S.
528, 545 - 555 (1971) (PLURALITY OPINION).  WHERE CLAIMS THAT THE STATE
IS ACTING IN THE BEST INTERESTS OF AN INDIVIDUAL ARE SAID TO JUSTIFY
REDUCED PROCEDURAL AND SUBSTANTIVE SAFEGUARDS, THIS COURT'S DECISIONS
REQUIRE THAT THEY BE "CANDIDLY APPRAISED."  IN RE GAULT, 387 U.S., AT
21, 27 - 29.  HOWEVER, IN SO DOING JUDGES ARE NOT FREE TO READ THEIR
PRIVATE NOTIONS OF PUBLIC POLICY OR PUBLIC HEALTH INTO THE
CONSTITUTION.  OLSEN V. NEBRASKA, 313 U.S. 236, 246 - 247 (1941). 
THE QUID PRO QUO THEORY IS A SHARP DEPARTURE FROM, AND CANNOT COEXIST
WITH, DUE PROCESS PRINCIPLES.  AS AN INITIAL MATTER THE THEORY
PRESUPPOSES THAT ESSENTIALLY THE SAME INTERESTS ARE INVOLVED IN EVERY
SITUATION WHERE A STATE SEEKS TO CONFINE AN INDIVIDUAL; THAT
ASSUMPTION, HOWEVER, IS INCORRECT.  IT IS ELEMENTARY THAT THE
JUSTIFICATION FOR THE CRIMINAL PROCESS AND THE UNIQUE DEPRIVATION OF
LIBERTY WHICH IT CAN IMPOSE REQUIRES THAT IT BE INVOKED ONLY FOR
COMMISSION OF A SPECIFIC OFFENSE PROHIBITED BY LEGISLATIVE ENACTMENT. 
SEE POWELL V. TEXAS, 392 U.S. 514, 541 - 544 (1968) (OPINION OF BLACK,
J.).  /7/ BUT IT WOULD BE INCONGRUOUS, FOR EXAMPLE, TO APPLY THE SAME
LIMITATION WHEN QUARANTINE IS IMPOSED BY THE STATE TO PROTECT THE
PUBLIC FROM A HIGHLY COMMUNICABLE DISEASE.  SEE JACOBSON V.
MASSACHUSETTS, 197 U.S., AT 29 - 30. 

A MORE TROUBLESOME FEATURE OF THE QUID PRO QUO THEORY IS THAT IT
WOULD ELEVATE A CONCERN FOR ESSENTIALLY PROCEDUARL SAFEGUARDS INTO A
NEW SUBSTANTIVE CONSTITUTIONAL RIGHT.  /8/ RATHER THAN INQUIRING
WHETHER STRICT STANDARDS OF PROOF OR PERIODIC REDETERMINATION OF A
PATIENT'S CONDITION ARE REQUIRED IN CIVIL CONFINEMENT, THE THEORY
ACCEPTS THE ABSENCE OF SUCH SAFEGUARDS BUT INSISTS THAT THE STATE
PROVIDE BENEFITS WHICH, IN THE VIEW OF A COURT, ARE ADEQUATE
"COMPENSATION" FOR CONFINEMENT.  IN LIGHT OF THE WIDE DIVERGENCE OF
MEDICAL OPINION REGARDING THE DIAGNOSIS OF AND PROPER THERAPY FOR
MENTAL ABNORMALITIES, THAT PROSPECT IS ESPECIALLY TROUBLING IN THIS
AREA AND CANNOT BE SQUARED WITH THE PRINCIPLE THAT "COURTS MAY NOT
SUBSTITUTE FOR THE JUDGMENTS OF LEGISLATORS THEIR OWN UNDERSTANDING OF
THE PUBLIC WELFARE, BUT MUST INSTEAD CONCERN THEMSELVES WITH THE
VALIDITY UNDER THE CONSTITUTION OF THE METHODS WHICH THE LEGISLATURE
HAS SELECTED."  IN RE GAULT, 387 U.S., AT 71 (HARLAN, J., CONCURRING
AND DISSENTING).  OF COURSE, QUESTIONS REGARDING THE ADEQUACY OF
PROCEDURE AND THE POWER OF A STATE TO CONTINUE PARTICULAR CONFINEMENTS
ARE ULTIMATELY FOR THE COURTS, AIDED BY EXPERT OPINION TO THE EXTENT
THAT IS FOUND HELPFUL.  BUT I AM NOT PERSUADED THAT WE SHOULD ABANDON
THE TRADITIONAL LIMITATIONS ON THE SCOPE OF JUDICIAL REVIEW. 

        C 

IN SUM, I CANNOT ACCEPT THE REASONING OF THE COURT OF APPEALS AND
CAN DISCERN NO BASIS FOR EQUATING AN INVOLUNTARILY COMMITTED MENTAL
PATIENT'S UNQUESTIONED CONSTITUTIONAL RIGHT NOT TO BE CONFINED WITHOUT
DUE PROCESS OF LAW WITH A CONSTITUTIONAL RIGHT TO TREATMENT.  /9/ 588
GIVEN THE PRESENT STATE OF MEDICAL KNOWLEDGE REGARDING ABNORMAL HUMAN
BEHAVIOR AND ITS TREATMENT, FEW THINGS WOULD BE MORE FRAUGHT WITH PERIL
THAN TO IRREVOCABLY CONDITION A STATE'S POWER TO PROTECT THE MENTALLY
ILL UPON THE PROVIDING OF "SUCH TREATMENT AS WILL GIVE (THEM) A
REALISTIC OPPORTUNITY TO BE CURED."  589 NOR CAN I ACCEPT THE THEORY
THAT A STATE MAY LAWFULLY CONFINE AN INDIVIDUAL THOUGHT TO NEED
TREATMENT AND JUSTIFY THAT DEPRIVATION OF LIBERTY SOLELY BY PROVIDING
SOME TREATMENT.  OUR CONCEPTS OF DUE PROCESS WOULD NOT TOLERATE SUCH A
"TRADEOFF."  BECAUSE THE COURT OF APPEALS' ANALYSIS COULD BE READ AS
AUTHORIZING THOSE RESULTS, IT SHOULD NOT BE FOLLOWED. 

/1/ I HAVE DIFFICULTY UNDERSTANDING HOW THE ISSUE OF IMMUNITY CAN BE
RESOLVED ON THIS RECORD AND HENCE IT IS VERY LIKELY A NEW TRIAL ON THIS
ISSUE MAY BE REQUIRED; IF THAT IS THE CASE I WOULD HOPE THESE SENSITIVE
AND IMPORTANT ISSUES WOULD HAVE THE BENEFIT OF MORE EFFECTIVE
PRESENTATION AND ARTICULATION ON BEHALF OF PETITIONER. 

/2/ THE COURT'S REFERENCE TO "MILIEU THERAPY," ANTE, AT 569, MAY BE
CONSTRUED AS DISPARAGING THAT CONCEPT.  TRUE, IT IS CAPABLE OF BEING
USED SIMPLY TO CLOAK OFFICIAL INDIFFERENCE, BUT THE REALITY IS THAT
SOME MENTAL ABNORMALITIES RESPOND TO NO KNOWN TREATMENT.  ALSO SOME
MENTAL PATIENTS RESPOND, AS DO PERSONS SUFFERING FROM A VARIETY OF
PHYSIOLOGICAL AILMENTS, TO WHAT IS LOOSELY CALLED "MILIEU TREATMENT,"
I.E., KEEPING THEM COMFORTABLE, WELL NOURISHED, AND IN A PROTECTED
ENVIRONMENT.  IT IS NOT FOR US TO SAY IN THE BAFFLING FIELD OF
PSYCHIATRY THAT "MILIEU THERAPY" IS ALWAYS A PRETENSE. 

/3/ THAT PETITIONER'S COUNSEL FAILED TO RAISE THIS ISSUE IS NOT A
REASON WHY IT SHOULD NOT BE CONSIDERED WITH RESPECT TO IMMUNITY IN
LIGHT OF THE COURT'S HOLDING THAT THE DEFENSE WAS PRESERVED FOR
APPELLATE REVIEW. 

/4/ SEE EDITORIAL, A NEW RIGHT, 46 A.B.A.J. 516 (1960). 

/5/ INDEED, THERE IS CONSIDERABLE DEBATE CONCERNING THE THRESHOLD
QUESTIONS OF WHAT CONSTITUTES "MENTAL DISEASE" AND "TREATMENT."  SEE
SZASZ, THE RIGHT TO HEALTH, 57 GEO. L.J. 734 (1969). 

/6/ INDEED, RESPONDENT MAY HAVE SHARED BOTH OF THESE
CHARACTERISTICS.  HIS ILLNESS, PARANOID SCHIZOPHRENIA, IS NOTORIOUSLY
UNSUSCEPTIBLE TO TREATMENT, SEE LIVERMORE, MALMQUIST, & MEEHL, ON THE
JUSTIFICATIONS FOR CIVIL COMMITMENT, 117 U. PA. L. REV. 75, 93 AND N.
52 (1968), AND THE REPORTS OF THE FLORIDA STATE HOSPITAL STAFF WHICH
WERE INTRODUCED INTO EVIDENCE EXPRESSED THE VIEW THAT HE WAS UNWILLING
TO ACKNOWLEDGE HIS ILLNESS AND WAS GENERALLY UNCOOPERATIVE. 

/7/ THIS IS NOT TO IMPLY THAT I ACCEPT ALL OF THE COURT OF APPEALS'
CONCLUSIONS REGARDING THE LIMITATIONS UPON THE STATES' POWER TO DETAIN
PERSONS WHO COMMIT CRIMES.  FOR EXAMPLE, THE NOTION THAT CONFINEMENT
MUST BE "FOR A FIXED TERM" IS DIFFICULT TO SQUARE WITH THE WIDESPREAD
PRACTICE OF INDETERMINATE SENTENCING, AT LEAST WHERE THE UPPER LIMIT IS
A LIFE SENTENCE. 

/8/ EVEN ADVOCATES OF A RIGHT TO TREATMENT HAVE CRITICIZED THE QUID
PRO QUO THEORY ON THIS GROUND.  E.G., DEVELOPMENTS IN THE LAW--CIVIL
COMMITMENT OF THE MENTALLY ILL, 87 HARV. L. REV. 1190, 1325 N. 39
(1974). 

/9/ IT SHOULD BE POINTED OUT THAT SEVERAL ISSUES WHICH THE COURT HAS
TOUCHED UPON IN OTHER CONTEXTS ARE NOT INVOLVED HERE.  AS THE COURT'S
OPINION MAKES PLAIN, THIS IS NOT A CASE OF A PERSON SEEKING RELEASE
BECAUSE HE HAS BEEN CONFINED "WITHOUT EVER OBTAINING A JUDICIAL
DETERMINATION THAT SUCH CONFINEMENT IS WARRANTED."  MCNEIL V. DIRECTOR,
PATUXENT INSTITUTION, 407 U.S. 245, 249 (1972).  ALTHOUGH RESPONDENT'S
AMENDED COMPLAINT ALLEGED THAT HIS 1956 HEARING BEFORE THE PINELLAS
COUNTY COURT WAS PROCEDURALLY DEFECTIVE AND IGNORED VARIOUS FACTORS
RELATING TO THE NECESSITY FOR COMMITMENT, THE PERSONS TO WHOM THOSE
ALLEGATIONS APPLIED WERE EITHER NOT SERVED WITH PROCESS OR DISMISSED BY
THE DISTRICT COURT PRIOR TO TRIAL.  RESPONDENT HAS NOT SOUGHT REVIEW OF
THE LATTER RULINGS, AND THIS CASE DOES NOT INVOLVE THE RIGHTS OF A
PERSON IN AN INITIAL COMPETENCY OR COMMITMENT PROCEEDING.  CF. JACKSON
V. INDIANA, 406 U.S. 715, 738 (1972); SPECHT V. PATTERSON, 386 U.S. 605
(1967); MINNESOTA EX REL. PEARSON V. PROBATE COURT, 309 U.S. 270
(1940). 

FURTHER, IT WAS NOT ALLEGED THAT RESPONDENT WAS SINGLED OUT FOR
DISCRIMINATORY TREATMENT BY THE STAFF OF FLORIDA STATE HOSPITAL OR THAT
PATIENTS AT THAT INSTITUTION WERE DENIED PRIVILEGES GENERALLY AVAILABLE
TO OTHER PERSONS UNDER COMMITMENT IN FLORIDA.  THUS, THE QUESTION
WHETHER DIFFERENT BASES FOR COMMITMENT JUSTIFY DIFFERENCES IN
CONDITIONS OF CONFINEMENT IS NOT INVOLVED IN THIS LITIGATION.  CF.
JACKSON V. INDIANA, SUPRA, AT 723 - 730; BAXSTROM V. HEROLD, 383 U.S.
107 (1966). 

FINALLY, THERE WAS NO EVIDENCE WHATEVER THAT RESPONDENT WAS ABUSED
OR MISTREATED AT FLORIDA STATE HOSPITAL OR THAT THE FAILURE TO PROVIDE
HIM WITH TREATMENT AGGRAVATED HIS CONDITION.  THERE WAS TESTIMONY
REGARDING THE GENERAL QUALITY OF LIFE AT THE HOSPITAL, BUT THE JURY WAS
NOT ASKED TO CONSIDER WHETHER RESPONDENT'S CONFINEMENT WAS IN EFFECT
"PUNISHMENT" FOR BEING MENTALLY ILL.  THE RECORD PROVIDES NO BASIS FOR
CONCLUDING, THEREFORE, THAT RESPONDENT WAS DENIED RIGHTS SECURED BY THE
EIGHTH AND FOURTEENTH AMENDMENTS.  CF. ROBINSON V. CALIFORNIA, 370 U.S.
660 (1962). 

RAYMOND W. GEAREY, ASSIST ATTORNEY GENERAL OF FLORIDA, ARGUED THE
CAUSE FOR PETITIONER PRO HAC VICE.  WITH HIM ON THE BRIEFS WERE ROBERT
L. SHEVIN, ATTORNEY GENERAL, AND DANIEL S. DEARING, SPECIAL ASSISTANT
ATTORNEY GENERAL. 

BRUCE J. ENNIS, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS MORTON BIRNBAUM. 

WILLIAM F. HYLAND, ATTORNEY GENERAL, STEPHEN SKILLMAN, ASSISTANT
ATTORNEY GENERAL, AND JOSEPH T. MALONEY, DEPUTY ATTORNEY GENERAL, FILED
A BRIEF FOR THE STATE OF NEW JERSEY AS AMICUS CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY E. BARRETT
PRETTYMAN, JR., FOR THE AMERICAN PSYCHIATRIC ASSN.; BY FRANCIS M. SHEA,
RALPH J. MOORE, JR., JOHN TOWNSEND RICH, JAMES F. FITZPATRICK, KURT W.
MELCHIOR, HARRY J. RUBIN, SHERIDAN L. NEIMARK, AND A. L. ZWERDING FOR
THE AMERICAN ASSOCIATION ON MENTAL DEFICIENCY; AND BY JUNE RESNICK
GERMAN AND ALFRED BERMAN FOR THE COMMITTEE ON MENTAL HYGIENE OF THE NEW
YORK STATE BAR ASSN. 

WILLIAM J. BROWN, ATTORNEY GENERAL, AND ANDREW J. RUZICHO AND
BARBARA J. ROUSE, ASSISTANT ATTORNEYS GENERAL, FILED A BRIEF FOR THE
STATE OF OHIO AS AMICUS CURIAE. 
..END :





BROWN V. ILLINOIS, 422 U.S. 590 


       BROWN V. ILLINOIS

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS

        NO. 73 - 6650.  ARGUED MARCH 18, 1975--DECIDED JUNE 26,

        1975; 56 ILL. 2D 312, 307 N.E. 2D 356, REVERSED AND

        REMANDED. 


    PETITIONER, WHO HAD BEEN ARRESTED WITHOUT PROBABLE CAUSE AND

  WITHOUT A WARRANT, AND UNDER CIRCUMSTANCES INDICATING THAT THE

  ARREST WAS INVESTIGATORY, MADE TWO IN-CUSTODY INCULPATORY

  STATEMENTS AFTER HE HAD BEEN GIVEN THE WARNINGS PRESCRIBED BY

  MIRANDA V. ARIZONA, 384 U.S. 436.  THEREAFTER INDICTED FOR

  MURDER, PETITIONER FILED A PRETRIAL MOTION TO SUPPRESS THE

  STATEMENTS.  THE MOTION WAS OVERRULED AND THE STATEMENTS WERE

  USED IN THE TRIAL, WHICH RESULTED IN PETITIONER'S CONVICTION. 

  THE STATE SUPREME COURT, THOUGH RECOGNIZING THE UNLAWFULNESS OF

  PETITIONER'S ARREST, HELD THAT THE STATEMENTS WERE ADMISSIBLE ON

THE GROUND THAT THE GIVING OF THE MIRANDA WARNINGS SERVED TO

  BREAK THE CAUSAL CONNECTION BETWEEN THE ILLEGAL ARREST AND THE

  GIVING OF THE STATEMENTS, AND PETITIONER'S ACT IN MAKING THE

  STATEMENTS WAS "SUFFICIENTLY AN ACT OF FREE WILL TO PURGE THE

  PRIMARY TAINT OF THE UNLAWFUL INVASION."  WONG SUN V. UNITED

  STATES, 371 U.S. 471, 486.  HELD: 

     1.  THE ILLINOIS COURTS ERRED IN ADOPTING A PER SE RULE THAT

  MIRANDA WARNINGS IN AND OF THEMSELVES BROKE THE CAUSAL CHAIN SO

  THAT ANY SUBSEQUENT STATEMENT, EVEN ONE INDUCED BY THE CONTINUING

  EFFECTS OF UNCONSTITUTIONAL CUSTODY, WAS ADMISSIBLE SO LONG AS,

  IN THE TRADITIONAL SENSE, IT WAS VOLUNTARY AND NOT COERCED IN

  VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS.  WHEN THE

  EXCLUSIONARY RULE IS USED TO EFFECTUATE THE FOURTH AMENDMENT, IT

  SERVES INTERESTS AND POLICIES THAT ARE DISTINCT FROM THOSE IT

  SERVES UNDER THE FIFTH, BEING DIRECTED AT ALL UNLAWFUL SEARCHES

  AND SEIZURES, AND NOT MERELY THOSE THAT HAPPEN TO PRODUCE

  INCRIMINATING MATERIAL OR TESTIMONY AS FRUITS.  THUS, EVEN IF THE

  STATEMENTS IN THIS CASE WERE FOUND TO BE VOLUNTARY UNDER THE

  FIFTH AMENDMENT, THE FOURTH AMENDMENT ISSUE REMAINS.  WONG SUN

  REQUIRES NOT MERELY THAT A STATEMENT MEET THE FIFTH AMENDMENT

  VOLUNTARINESS STANDARD BUT THAT IT BE "SUFFICIENTLY AN ACT OF

  FREE WILL TO PURGE THE PRIMARY TAINT" IN LIGHT OF THE DISTINCT

  POLICIES AND INTERESTS OF THE FOURTH AMENDMENT.  PP. 600 - 603. 

  2.  THE QUESTION WHETHER A CONFESSION IS VOLUNTARY UNDER WONG

  SUN MUST BE ANSWERED ON THE FACTS OF EACH CASE.  THOUGH THE

  MIRANDA WARNINGS ARE AN IMPORTANT FACTOR IN RESOLVING THE ISSUE,

  OTHER FACTORS MUST BE CONSIDERED; AND THE BURDEN OF SHOWING

  ADMISSIBILITY OF IN-CUSTODY STATEMENTS OF PERSONS WHO HAVE BEEN

  ILLEGALLY ARRESTED RESTS ON THE PROSECUTOR.  591 PP. 603 - 604. 

  3.  THE STATE FAILED TO SUSTAIN ITS BURDEN IN THIS CASE OF

  SHOWING THAT PETITIONER'S STATEMENTS WERE ADMISSIBLE UNDER WONG

  SUN.  PP. 604 - 605. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND DOUGLAS, BRENNAN, STEWART, AND MARSHALL, JJ.,

  JOINED.  WHITE, J., FILED AN OPINION CONCURRING IN THE JUDGMENT,

  POST, P. 606.  POWELL, J., FILED AN OPINION CONCURRING IN PART,

  IN WHICH REHNQUIST, J., JOINED, POST, P. 606. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE LIES AT THE CROSSROADS OF THE FOURTH AND THE FIFTH
AMENDMENTS.  PETITIONER WAS ARRESTED WITHOUT PROBABLE CAUSE AND WITHOUT
A WARRANT.  HE WAS GIVEN, IN FULL, THE WARNINGS PRESCRIBED BY MIRANDA
V. ARIZONA, 384 U. S. 436 (1966).  THEREAFTER, WHILE IN CUSTODY, HE
MADE TWO INCULPATORY STATEMENTS.  THE ISSUE IS WHETHER EVIDENCE OF
THOSE STATEMENTS WAS PROPERLY ADMITTED, OR SHOULD HAVE BEEN EXCLUDED,
IN PETITIONER'S SUBSEQUENT TRIAL FOR MURDER IN STATE COURT.  EXPRESSED
ANOTHER WAY, THE ISSUE IS WHETHER THE STATEMENTS WERE TO BE EXCLUDED AS
THE FRUIT OF THE ILLEGAL ARREST, OR WERE ADMISSIBLE BECAUSE THE GIVING
OF THE MIRANDA WARNINGS SUFFICIENTLY ATTENUATED THE TAINT OF THE
ARREST.  592 SEE WONG SUN V. UNITED STATES, 371 U. S. 471 (1963).  THE
FOURTH AMENDMENT, OF COURSE, HAS BEEN HELD TO BE APPLICABLE TO THE
STATES THROUGH THE FOURTEENTH AMENDMENT.  MAPP V. OHIO, 367 U. S. 643
(1961). 

        I 

AS PETITIONER RICHARD BROWN WAS CLIMBING THE LAST OF THE STAIRS
LEADING TO THE REAR ENTRANCE OF HIS CHICAGO APARTMENT IN THE EARLY
EVENING OF MAY 13, 1968, HE HAPPENED TO GLANCE AT THE WINDOW NEAR THE
DOOR.  HE SAW, POINTED AT HIM THROUGH THE WINDOW, A REVOLVER HELD BY A
STRANGER WHO WAS INSIDE THE APARTMENT.  THE MAN SAID:  "DON'T MOVE, YOU
ARE UNDER ARREST."  APP.  42.  ANOTHER MAN, ALSO WITH A GUN, CAME UP
BEHIND BROWN AND REPEATED THE STATEMENT THAT HE WAS UNDER ARREST.  IT
WAS ABOUT 7:45 P. M. THE TWO MEN TURNED OUT TO BE DETECTIVES WILLIAM
NOLAN AND WILLIAM LENZ OF THE CHICAGO POLICE FORCE.  IT IS NOT CLEAR
FROM THE RECORD EXACTLY WHEN THEY ADVISED BROWN OF THEIR IDENTITY, BUT
IT IS NOT DISPUTED THAT THEY BROKE INTO HIS APARTMENT, SEARCHED IT, AND
THEN ARRESTED BROWN, ALL WITHOUT PROBABLE CAUSE AND WITHOUT ANY
WARRANT, WHEN HE ARRIVED.  THEY LATER TESTIFIED THAT THEY MADE THE
ARREST FOR THE PURPOSE OF QUESTIONING BROWN AS PART OF THEIR
INVESTIGATION OF THE MURDER OF A MAN NAMED ROGER CORPUS. 

CORPUS WAS MURDERED ONE WEEK EARLIER, ON MAY 6, WITH A .38-CALIBER
REVOLVER IN HIS CHICAGO WEST SIDE SECOND-FLOOR APARTMENT.  SHORTLY
THEREAFTER, DETECTIVE LENZ OBTAINED PETITIONER'S NAME, AMONG OTHERS,
FROM CORPUS' BROTHER.  PETITIONER AND THE OTHERS WERE IDENTIFIED AS
ACQUAINTANCES OF THE VICTIM, NOT AS SUSPECTS.  /1/ 

ON THE DAY OF PETITIONER'S ARREST, DETECTIVES LENZ AND NOLAN, ARMED
WITH A PHOTOGRAPH OF BROWN, AND ANOTHER OFFICER ARRIVED AT PETITIONER'S
APARTMENT ABOUT 5 P. M. APP. 77, 78.  WHILE THE THIRD OFFICER COVERED
THE FRONT ENTRANCE DOWNSTAIRS, THE TWO DETECTIVES BROKE INTO BROWN'S
APARTMENT AND SEARCHED IT.  ID., AT 86.  LENZ THEN POSITIONED HIMSELF
NEAR THE REAR DOOR AND WATCHED THROUGH THE ADJACENT WINDOW WHICH OPENED
ONTO THE BACK PORCH.  NOLAN SAT NEAR THE FRONT DOOR.  HE DESCRIBED THE
SITUATION AT THE LATER SUPPRESSION HEARING: 

"AFTER WE WERE THERE FOR A WHILE, DETECTIVE LENZ TOLD ME THAT
SOMEBODY WAS COMING UP THE BACK STAIRS.  I WALKED OUT THE FRONT DOOR
THROUGH THE HALL AND AROUND THE CORNER, AND I STAYED THERE BEHIND A
DOOR LEADING ON TO THE BACK PORCH.  AT THIS TIME I HEARD DETECTIVE LENZ
SAY, 'DON'T MOVE, YOU ARE UNDER ARREST.'  I LOOKED OUT.  I SAW MR.
BROWN BACKING AWAY FROM THE WINDOW.  I WALKED UP BEHIND HIM, I TOLD HIM
HE IS UNDER ARREST, COME BACK INSIDE THE APARTMENT WITH US."  ID., AT
42.  AS BOTH OFFICERS HELD HIM AT GUNPOINT, THE THREE ENTERED THE
APARTMENT.  BROWN WAS ORDERED TO STAND AGAINST THE WALL AND WAS
SEARCHED.  NO WEAPON WAS FOUND.  ID., AT 93.  HE WAS ASKED HIS NAME. 
WHEN HE DENIED BEING RICHARD BROWN, DETECTIVE LENZ SHOWED HIM THE
PHOTOGRAPH, INFORMED HIM THAT HE WAS UNDER ARREST FOR THE MURDER OF
ROGER CORPUS.  ID., AT 16, HANDCUFFED HIM, ID., AT 93, AND ESCORTED HIM
TO THE SQUAD CAR. 

THE TWO DETECTIVES TOOK PETITIONER TO THE MAXWELL STREET POLICE
STATION.  DURING THE 20-MINUTE DRIVE NOLAN AGAIN ASKED BROWN, WHO THEN
WAS SITTING WITH HIM IN THE BACK SEAT OF THE CAR, WHETHER HIS NAME WAS
RICHARD BROWN AND WHETHER HE OWNED A 1966 OLDSMOBILE.  BROWN
ALTERNATELY EVADED THESE QUESTIONS OR ANSWERED THEM FALSELY.  594 TR.
74.  UPON ARRIVAL AT THE STATIONHOUSE BROWN WAS PLACED IN THE SECOND
FLOOR CENTRAL INTERROGATION ROOM.  THE ROOM WAS BARE, EXCEPT FOR A
TABLE AND FOUR CHAIRS.  HE WAS LEFT ALONE, APPARENTLY WITHOUT
HANDCUFFS, FOR SOME MINUTES WHILE THE OFFICERS OBTAINED THE FILE ON THE
CORPUS HOMICIDE.  THEY RETURNED WITH THE FILE, SAT DOWN AT THE TABLE,
ONE ACROSS FROM BROWN AND THE OTHER TO HIS LEFT, AND SPREAD THE FILE ON
THE TABLE IN FRONT OF HIM.  APP. 19. 

THE OFFICERS WARNED BROWN OF HIS RIGHTS UNDER MIRANDA.  /2/ IBID.
THEY THEN INFORMED HIM THAT THEY KNEW OF AN INCIDENT THAT HAD OCCURRED
IN A POOLROOM ON MAY 5, WHEN BROWN, ANGRY AT HAVING BEEN CHEATED AT
DICE, FIRED A SHOT FROM A REVOLVER INTO THE CEILING.  BROWN ANSWERED:
"OH, YOU KNOW ABOUT THAT."  ID., AT 20.  LENZ INFORMED HIM THAT A
BULLET HAD BEEN OBTAINED FROM THE CEILING OF THE POOLROOM AND HAD BEEN
TAKEN TO THE CRIME LABORATORY TO BE COMPARED WITH BULLETS TAKEN FROM
CORPUS'  BODY.  /3/ IBID.  BROWN RESPONDED: "OH, YOU KNOW THAT, TOO." 
ID., AT 20 - 21.  AT THIS POINT--IT WAS ABOUT 8:45 P. M.--LENZ ASKED
BROWN WHETHER HE WANTED TO TALK ABOUT THE CORPUS HOMICIDE.  PETITIONER
ANSWERED THAT HE DID.  FOR THE NEXT 20 TO 25 MINUTES BROWN ANSWERED
QUESTIONS PUT TO HIM BY NOLAN, AS LENZ TYPED.  ID., AT 21 - 23. 

THIS QUESTIONING PRODUCED A TWO-PAGE STATEMENT IN WHICH BROWN
ACKNOWLEDGED THAT HE AND A MAN NAMED JIMMY CLAGGETT VISITED CORPUS ON
THE EVENING OF MAY 5; 595 THAT THE THREE FOR SOME TIME SAT DRINKING AND
SMOKING MARIHUANA; THAT CLAGGETT ORDERED HIM AT GUNPOINT TO BIND
CORPUS' HANDS AND FEET WITH CORD FROM THE HEADPHONE OF A STEREO SET;
AND THAT CLAGGETT USING A .38-CALIBER REVOLVER SOLD TO HIM BY BROWN,
SHOT CORPUS THREE TIMES THROUGH A PILLOW.  THE STATEMENT WAS SIGNED BY
BROWN.  ID., AT 9, 38. 

ABOUT 9:30 P. M. THE TWO DETECTIVES AND BROWN LEFT THE STATIONHOUSE
TO LOOK FOR CLAGGETT IN AN AREA OF CHICAGO BROWN KNEW HIM TO FREQUENT. 
THEY MADE A TOUR OF THAT AREA BUT DID NOT LOCATE THEIR QUARRY.  THEY
THEN WENT TO POLICE HEADQUARTERS WHERE THEY ENDEAVORED, WITHOUT
SUCCESS, TO OBTAIN A PHOTOGRAPH OF CLAGGETT.  THEY RESUMED THEIR SEARCH
-IT WAS NOW ABOUT 11 P. M.--AND THEY FINALLY OBSERVED CLAGGETT CROSSING
AT AN INTERSECTION.  LENZ AND NOLAN ARRESTED HIM.  ALL FOUR, THE TWO
DETECTIVES AND THE TWO ARRESTED MEN, RETURNED TO THE MAXWELL STREET
STATION ABOUT 12:15 A. M. ID., AT 39. 

BROWN WAS AGAIN PLACED IN THE INTERROGATION ROOM.  HE WAS GIVEN
COFFEE AND WAS LEFT ALONE, FOR THE MOST PART, UNTIL 2 A. M. WHEN
ASSISTANT STATE'S ATTORNEY CRILLY ARRIVED. 

CRILLY, TOO, INFORMED BROWN OF HIS MIRANDA RIGHTS.  AFTER A HALF
HOUR'S CONVERSATION, A COURT REPORTER APPEARED.  ONCE AGAIN THE MIRANDA
WARNINGS WERE GIVEN:  "I READ HIM THE CARD."  ID., AT 30.  CRILLY TOLD
HIM THAT HE "WAS SURE HE WOULD BE CHARGED WITH MURDER."  ID., AT 32. 
BROWN GAVE A SECOND STATEMENT, PROVIDING A FACTUAL ACCOUNT OF THE
MURDER SUBSTANTIALLY IN ACCORD WITH HIS FIRST STATEMENT, BUT CONTAINING
FACTUAL INACCURACIES WITH RESPECT TO HIS PERSONAL BACKGROUND.  /4/ WHEN
THE STATEMENT WAS COMPLETED, AT ABOUT 3 A. M., BROWN REFUSED TO SIGN
IT.  ID., AT 57, AN HOUR LATER HE MADE A PHONE CALL TO HIS MOTHER.  AT
9:30 THAT MORNING, ABOUT 14 HOURS AFTER HIS ARREST, HE WAS TAKEN BEFORE
A MAGISTRATE. 

ON JUNE 20 BROWN AND CLAGGETT WERE JOINTLY INDICTED BY A COOK COUNTY
GRAND JURY FOR CORPUS' MURDER.  PRIOR TO TRIAL, PETITIONER MOVED TO
SUPPRESS THE TWO STATEMENTS HE HAD MADE.  HE ALLEGED THAT HIS ARREST
AND DETENTION HAD BEEN ILLEGAL AND THAT THE STATEMENTS WERE TAKEN FROM
HIM IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.  AFTER A HEARING, THE
MOTION WAS DENIED.  R. 46. 

THE CASE PROCEEDED TO TRIAL.  THE STATE INTRODUCED EVIDENCE OF BOTH
STATEMENTS.  DETECTIVE NOLAN TESTIFIED AS TO THE CONTENTS OF THE FIRST,
APP. 89 - 92, BUT THE WRITING ITSELF WAS NOT PLACED IN EVIDENCE.  THE
SECOND STATEMENT WAS INTRODUCED AND WAS READ TO THE JURY IN FULL.  TR.
509 - 528.  BROWN WAS 23 AT THE TIME OF THE TRIAL.  ID., AT 543. 

THE JURY FOUND PETITIONER GUILTY OF MURDER.  R. 80.  HE WAS
SENTENCED TO IMPRISONMENT FOR NOT LESS THAN 15 YEARS NOR MORE THAN 30
YEARS.  ID., AT 83. 

ON APPEAL, THE SUPREME COURT OF ILLINOIS AFFIRMED THE JUDGMENT OF
CONVICTION.  56 ILL. 2D 312, 307 N. E. 2D 356 (1974).  THE COURT
REFUSED TO ACCEPT THE STATE'S ARGUMENT THAT BROWN'S ARREST WAS LAWFUL. 
"UPON REVIEW OF THE RECORD, WE CONCLUDE THAT THE TESTIMONY FAILS TO
SHOW THAT AT THE TIME OF HIS APPREHENSION THERE WAS PROBABLE CAUSE FOR
DEFENDANT'S ARREST, (AND) THAT HIS ARREST WAS, THEREFORE, UNLAWFUL." 
ID., AT 315, 307 N. E. 2D, AT 357.  BUT IN WENT ON TO HOLD IN TWO
SIGNIFICANT AND UNEMBELLISHED SENTENCES: 

"(WE CONCLUDE THAT THE GIVING OF THE MIRANDA WARNINGS, IN THE FIRST
INSTANCE BY THE POLICE OFFICER AND IN THE SECOND BY THE ASSISTANT
STATE'S ATTORNEY, SERVED TO BREAK THE CAUSAL CONNECTION BETWEEN THE
ILLEGAL ARREST AND THE GIVING OF THE STATEMENTS, AND THAT DEFENDANT'S
ACT IN MAKING THE STATEMENTS WAS 'SUFFICIENTLY AN ACT OF FREE WILL TO
PURGE THE PRIMARY TAINT OF THE UNLAWFUL INVASION.'  (WONG SUN V. UNITED
STATES, 371 U. S. 471, AT 486.)  WE HOLD, THEREFORE, THAT THE CIRCUIT
COURT DID NOT ERR IN ADMITTING THE STATEMENTS INTO EVIDENCE."  ID., AT
317, 307 N. E. 2D, AT 358.  ASIDE FROM ITS RELIANCE UPON THE PRESENCE
OF THEMIRANDA WARNINGS, NO SPECIFIC ASPECT OF THE RECORD OR OF THE
CIRCUMSTANCES WAS CITED BY THE COURT IN SUPPORT OF ITS CONCLUSION.  THE
COURT, IN OTHER WORDS, APPEARS TO HAVE HELD THAT THE MIRANDA WARNINGS
IN AND OF THEMSELVES BROKE THE CAUSAL CHAIN SO THAT ANY SUBSEQUENT
STATEMENT, EVEN ONE INDUCED BY THE CONTINUING EFFECTS OF
UNCONSTITUTIONAL CUSTODY, WAS ADMISSIBLE SO LONG AS, IN THE TRADITIONAL
SENSE, IT WAS VOLUNTARY AND NOT COERCED IN VIOLATION OF THE FIFTH AND
FOURTEENTH AMENDMENTS. 

BECAUSE OF OUR CONCERN ABOUT THE IMPLICATION OF OUR HOLDING IN WONG
SUN V. UNITED STATES, 371 U. S. 471 (1963), TO THE FACTS OF BROWN'S
CASE, WE GRANTED CERTIORARI.  419 U. S. 894 (1974). 

II 

IN WONG SUN, THE COURT PRONOUNCED THE PRINCIPLES TO BE APPLIED WHERE
THE ISSUE IS WHETHER STATEMENTS AND OTHER EVIDENCE OBTAINED AFTER AN
ILLEGAL ARREST OR SEARCH SHOULD BE EXCLUDED.  IN THAT CASE, FEDERAL
AGENTS ELICITED AN ORAL STATEMENT FROM DEFENDANT TOY AFTER FORCING
ENTRY AT 6 A. M. INTO HIS LAUNDRY, AT THE BACK OF WHICH HE HAD HIS
LIVING QUARTERS.  THE AGENTS HAD FOLLOWED TOY DOWN THE HALL TO THE
BEDROOM AND THERE HAD PLACED HIM UNDER ARREST.  THE COURT OF APPEALS
FOUND THAT THERE WAS NO PROBABLE CAUSE FOR THE ARREST.  THIS COURT
CONCLUDED THAT THAT FINDING WAS "AMPLY JUSTIFIED BY THE FACTS CLEARLY
SHOWN ON THIS RECORD."  371 U.S., AT 479.  TOY'S STATEMENT, WHICH BORE
UPON HIS PARTICIPATION IN THE SALE OF NARCOTICS, LED THE AGENTS TO
QUESTION ANOTHER PERSON, JOHNNY YEE, WHO ACTUALLY POSSESSED NARCOTICS. 
YEE STATED THAT HEROIN HAD BEEN BROUGHT TO HIM EARLIER BY TOY AND
ANOTHER CHINESE KNOWN TO HIM ONLY AS "SEA DOG."  UNDER QUESTIONING, TOY
SAID THAT "SEA DOG" WAS WONG SUN.  TOY LED AGENTS TO A MULTIFAMILY
DWELLING WHERE, HE SAID, WONG SUN LIVED.  GAINING ADMITTANCE TO THE
BUILDING THROUGH A BELL AND BUZZER, THE AGENTS CLIMBED THE STAIRS AND
ENTERED THE APARTMENT.  ONE WENT INTO THE BACK ROOM AND BROUGHT WONG
SUN OUT IN HANDCUFFS.  AFTER ARRAIGNMENT, WONG SUN WAS RELEASED ON HIS
OWN RECOGNIZANCE.  SEVERAL DAYS LATER, HE RETURNED VOLUNTARILY TO GIVE
AN UNSIGNED CONFESSION. 

THIS COURT RULED THAT TOY'S DECLARATIONS AND THE CONTRABAND TAKEN
FROM YEE WERE THE FRUITS OF THE AGENTS' ILLEGAL ACTION AND SHOULD NOT
HAVE BEEN ADMITTED AS EVIDENCE AGAINST TOY.  ID., AT 484 - 488.  IT
HELD THAT THE STATEMENT DID NOT RESULT FROM "'AN INTERVENING
INDEPENDENT ACT OF A FREE WILL.'"  AND THAT IT WAS NOT "SUFFICIENTLY AN
ACT OF FREE WILL TO PURGE THE PRIMARY TAINT OF THE UNLAWFUL INVASION." 
ID., AT 486.  WITH RESPECT TO WONG SUN'S CONFESSION, HOWEVER, THE COURT
HELD THAT IN THE LIGHT OF HIS LAWFUL ARRAIGNMENT AND RELEASE ON HIS OWN
RECOGNIZANCE, AND OF HIS RETURN VOLUNTARILY SEVERAL DAYS LATER TO MAKE
THE STATEMENT, THE CONNECTION BETWEEN HIS UNLAWFUL ARREST AND THE
STATEMENT "HAD 'BECOME SO ATTENUATED AS TO DISSIPATE THE TAINT.' 
NARDONE V. UNITED STATES, 308 U. S. 338, 341."  371 U. S., AT 491.  THE
COURT SAID: 

"WE NEED NOT HOLD THAT ALL EVIDENCE IS 'FRUIT OF THE POISONOUS TREE'
SIMPLY BECAUSE IT WOULD NOT HAVE COME TO LIGHT BUT FOR THE ILLEGAL
ACTIONS OF THE POLICE.  RATHER, THE MORE APT QUESTION IN SUCH A CASE IS
'WHETHER, GRANTING ESTABLISHMENT OF THE PRIMARY ILLEGALITY, THE
EVIDENCE TO WHICH INSTANT OBJECTION IS MADE HAS BEEN COME AT BY
EXPLOITATION OF THAT ILLEGALITY OR INSTEAD BY MEANS SUFFICIENTLY
DISTINGUISHABLE TO BE PURGED OF THE PRIMARY TAINT.'  MAGUIRE, EVIDENCE
OF GUILT, 221 (1959)."  371 U. S.., AT 487 - 488. 

THE EXCLUSIONARY RULE THUS WAS APPLIED IN WONG SUN PRIMARILY TO
PROTECT FOURTH AMENDMENT RIGHTS.  PROTECTION OF THE FIFTH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION WAS NOT THE COURT'S PARAMOUNT CONCERN
THERE.  TO THE EXTENT THAT THE QUESTION WHETHER TOY'S STATEMENT WAS
VOLUNTARY WAS CONSIDERED, IT WAS ONLY TO JUDGE WHETHER IT "WAS
SUFFICIENTLY AN ACT OF FREE WILL TO PURGE THE PRIMARY TAINT OF THE
UNLAWFUL INVASION."  ID., AT 486 (EMPHASIS ADDED).     THE COURT IN
WONG SUN, AS IS CUSTOMARY, EMPHASIZED THAT APPLICATION OF THE
EXCLUSIONARY RULE ON TOY'S BEHALF PROTECTED FOURTH AMENDMENT GUARANTEES
IN TWO RESPECTS:  "IN TERMS OF DETERRING LAWLESS CONDUCT BY FEDERAL
OFFICERS," AND BY "CLOSING THE DOORS OF THE FEDERAL COURTS TO ANY USE
OF EVIDENCE UNCONSTITUTIONALLY OBTAINED."  IBID.  THESE CONSIDERATIONS
OF DETERRENCE AND OF JUDICIAL INTEGRITY BY NOW, HAVE BECOME RATHER
COMMONPLACE IN THE COURT'S CASES.  SEE, E. G., UNITED STATES V.
PELTIER, ANTE, AT 535 - 538; UNITED STATES V. CALANDRA, 414 U. S. 338,
347 (1974); TERRY V. OHIO, 392 U. S. 1, 12 - 13, 28 - 29 (1968).  "THE
RULE IS CALCULATED TO PREVENT, NOT TO REPAIR.  ITS PURPOSE IS TO DETER-
TO COMPEL RESPECT FOR THE CONSTITUTIONAL GUARANTY IN THE ONLY
EFFECTIVELY AVAILABLE WAY--BY REMOVING THE INCENTIVE TO DISREGARD IT." 
ELKINS V. UNITED STATES, 364 U. S. 206, 217 (1960).  BUT "(DESPITE ITS
BROAD DETERRENT PURPOSE, THE EXCLUSIONARY RULE HAS NEVER BEEN
INTERPRETED TO PROSCRIBE THE USE OF ILLEGALLY SEIZED EVIDENCE IN ALL
PROCEEDINGS OR AGAINST ALL PERSONS."  UNITED STATES V. CALANDRA, 414 U.
S., AT 348.  SEE ALSO MICHIGAN V. TUCKER, 417 U. S. 433, 446 - 447
(1974).  /5/

     III 

THE ILLINOIS COURTS REFRAINED FROM RESOLVING THE QUESTION, AS APT
HERE AS IT WAS IN WONG SUN, WHETHER BROWN'S STATEMENTS WERE OBTAINED BY
EXPLOITATION OF THE ILLEGALITY OF HIS ARREST.  THEY ASSUMED THAT THE
MIRANDA WARNINGS, BY THEMSELVES, ASSURED THAT THE STATEMENTS (VERBAL
ACTS, AS CONTRASTED WITH PHYSICAL EVIDENCE) WERE OF SUFFICIENT FREE
WILL AS TO PURGE THE PRIMARY TAINT OF THE UNLAWFUL ARREST.  WONG SUN,
OF COURSE, PRECEDED MIRANDA. 

THIS COURT HAS DESCRIBED THE MIRANDA WARNINGS AS A "PROPHYLACTIC
RULE," MICHIGAN V. PAYNE, 412 U. S. 47, 53 (1973), AND AS A "PROCEDURAL
SAFEGUARD," MIRANDA V. ARIZONA, 384 U. S., AT 457, 478, EMPLOYED TO
PROTECT FIFTH AMENDMENT RIGHTS AGAINST "THE COMPULSION INHERENT IN
CUSTODIAL SURROUNDINGS."  ID., AT 458.  THE FUNCTION OF THE WARNINGS
RELATES TO THE FIFTH AMENDMENT'S GUARANTEE AGAINST COERCED SELF
INCRIMINATION, AND THE EXCLUSION OF A STATEMENT MADE IN THE ABSENCE OF
THE WARNINGS, IT IS SAID, SERVES TO DETER THE TAKING OF AN
INCRIMINATING STATEMENT WITHOUT FIRST INFORMING THE INDIVIDUAL OF HIS
FIFTH AMENDMENT RIGHTS. 

ALTHOUGH, ALMOST 90 YEARS AGO, THE COURT OBSERVED THAT THE FIFTH
AMENDMENT IS IN "INTIMATE RELATION" WITH THE FOURTH, BOYD V. UNITED
STATES, 116 U. S. 616, 633 (1886), THE MIRANDA WARNINGS THUS FAR HAVE
NOT BEEN REGARDED AS A MEANS EITHER OF REMEDYING OR DETERRING
VIOLATIONS OF FOURTH AMENDMENT RIGHTS.  FREQUENTLY, AS HERE, RIGHTS
UNDER THE TWO AMENDMENTS MAY APPEAR TO COALESCE SINCE "THE
'UNREASONABLE SEARCHES AND SEIZURES' CONDEMNED IN THE FOURTH AMENDMENT
ARE ALMOST ALWAYS MADE FOR THE PURPOSE OF COMPELLING A MAN TO GIVE
EVIDENCE AGAINST HIMSELF, WHICH IN CRIMINAL CASES IS CONDEMNED IN THE
FIFTH AMENDMENT."  IBID.; SEE MAPP V. OHIO, 367 U. S., AT 646 N. 5. 
THE EXCLUSIONARY RULE, HOWEVER, WHEN UTILIZED TO EFFECTUATE THE FOURTH
AMENDMENT, SERVES INTERESTS AND POLICIES THAT ARE DISTINCT FROM THOSE
IT SERVES UNDER THE FIFTH.  IT IS DIRECTED AT ALL UNLAWFUL SEARCHES AND
SEIZURES, AND NOT MERELY THOSE THAT HAPPEN TO PRODUCE INCRIMINATING
MATERIAL OR TESTIMONY AS FRUITS.  IN SHORT, EXCLUSION OF A CONFESSION
MADE WITHOUT MIRANDA WARNINGS MIGHT BE REGARDED AS NECESSARY TO
EFFECTUATE THE FIFTH AMENDMENT, BUT IT WOULD NOT BE SUFFICIENT FULLY TO
PROTECT THE FOURTH.  MIRANDA WARNINGS, AND THE EXCLUSION OF A
CONFESSION MADE WITHOUT THEM, DO NOT ALONE SUFFICIENTLY DETER A FOURTH
AMENDMENT VIOLATION.  /6/ 

THUS, EVEN IF THE STATEMENTS IN THIS CASE WERE FOUND TO BE VOLUNTARY
UNDER THE FIFTH AMENDMANT, THE FOURTH AMENDMANT ISSUE REMAINS.  IN
ORDER FOR THE CAUSAL CHAIN, BETWEEN THE ILLEGAL ARREST AND THE
STATEMENTS MADE SUBSEQUENT THERETO, TO BE BROKEN, WONG SUN REQUIRES NOT
MERELY THAT THE STATEMENT MEET THE FIFTH AMENDMENT STANDARD OF
VOLUNTARINESS BUT THAT IT BE "SUFFICIENTLY AN ACT OF FREE WILL TO PURGE
THE PRIMARY TAINT."  371 U. S., AT 486.  WONG SUN THUS MANDATES
CONSIDERATION OF A STATEMENT'S ADMISSIBILITY IN LIGHT OF THE DISTINCT
POLICIES AND INTERESTS OF THE FOURTH AMENDMENT. 

IF MIRANDA WARNINGS, BY THEMSELVES, WERE HELD TO ATTENUATE THE TAINT
OF AN UNCONSTITUTIONAL ARREST, REGARDLESS OF HOW WANTON AND PURPOSEFUL
THE FOURTH AMENDMENT VIOLATION, THE EFFECT OF THE EXCLUSIONARY RULE
WOULD BE SUBSTANTIALLY DILUTED.  SEE DAVIS V. MISSISSIPPI, 394 U.S.
721, 726 - 727 (1969).  ARRESTS MADE WITHOUT WARRANT OR WITHOUT
PROBABLE CAUSE, FOR QUESTIONING OR "INVESTIGATION,"  WOULD BE
ENCOURAGED BY THE KNOWLEDGE THAT EVIDENCE DERIVED THEREFROM COULD WELL
BE MADE ADMISSIBLE AT TRIAL BY THE SIMPLE EXPEDIENT OF GIVING MIRANDA
WARNINGS.  /7/ ANY INCENTIVE TO AVOID FOURTH AMENDMENT VIOLATIONS WOULD
BE EVISCERATED BY MAKING THE WARNINGS, IN EFFECT, A "CURE-ALL," AND THE
CONSTITUTIONAL GUARANTEE AGAINST UNLAWFUL SEARCHES AND SEIZURES COULD
BE SAID TO BE REDUCED TO "A FORM OF WORDS."  SEE MAPP V. OHIO, 367
U.S., AT 648. 

IT IS ENTIRELY POSSIBLE, OF COURSE, AS THE STATE HERE ARGUES, THAT
PERSONS ARRESTED ILLEGALLY FREQUENTLY MAY DECIDE TO CONFESS, AS AN ACT
OF FREE WILL UNAFFECTED BY THE INITIAL ILLEGALITY.  BUT THE MIRANDA
WARNINGS, ALONE AND PER SE, CANNOT ALWAYS MAKE THE ACT SUFFICIENTLY A
PRODUCT OF FREE WILL TO BREAK, FOR FOURTH AMENDMENT PURPOSES, THE
CAUSAL CONNECTION BETWEEN THE ILLEGALITY AND THE CONFESSION.  THEY
CANNOT ASSURE IN EVERY CASE THAT THE FOURTH AMENDMENT VIOLATION HAS NOT
BEEN UNDULY EXPLOITED.  SEE WESTOVER V. UNITED STATES, 384 U. S. 436,
496 - 497 (1966). 

WHILE WE THEREFORE REJECT THE PER SE RULE WHICH THE ILLINOIS COURTS
APPEAR TO HAVE ACCEPTED, WE ALSO DECLINE TO ADOPT ANY ALTERNATIVE PER
SE OR "BUT FOR" RULE.  THE PETITIONER HIMSELF PROFESSES NOT TO DEMAND
SO MUCH.  TR. OF ORAL ARG. 12, 45, 47.  THE QUESTION WHETHER A
CONFESSION IS THE PRODUCT OF A FREE WILL UNDER WONG SUN MUST BE
ANSWERED ON THE FACTS OF EACH CASE.  NO SINGLE FACT IS DISPOSITIVE. 
THE WORKINGS OF THE HUMAN MIND ARE TOO COMPLEX, AND THE POSSIBILITIES
OF MISCONDUCT TOO DIVERSE, TO PERMIT PROTECTION OF THE FOURTH AMENDMENT
TO TURN ON SUCH A TALISMANIC TEST.  THE MIRANDA WARNINGS ARE AN
IMPORTANT FACTOR, TO BE SURE, IN DETERMINING WHETHER THE CONFESSION IS
OBTAINED BY EXPLOITATION OF AN ILLEGAL ARREST.  BUT THEY ARE NOT THE
ONLY FACTOR TO BE CONSIDERED.  THE TEMPORAL PROXIMITY OF THE ARREST AND
THE CONFESSION, /8/ THE PRESENCE OF INTERVENING CIRCUMSTANCES, SEE
JOHNSON V. LOUISIANA, 406 U. S. 356, 365 (1972), AND, PARTICULARLY, THE
PURPOSE AND FLAGRANCY OF THE OFFICIAL MISCONDUCT /9/ ARE ALL RELEVANT. 
SEE WONG SUN V. UNITED STATES, 371 U. S., AT 491.  THE VOLUNTARINESS OF
THE STATEMENT IS A THRESHOLD REQUIREMENT.  CF. 18 U.S.C. 3501.  AND THE
BURDEN OF SHOWING ADMISSIBILITY RESTS, OF COURSE, ON THE PROSECUTION. 
/10/

        IV 

ALTHOUGH THE ILLINOIS COURTS FAILED TO UNDERTAKE THE INQUIRY
MANDATED BY WONG SUN TO EVALUATE THE CIRCUMSTANCES OF THIS CASE IN THE
LIGHT OF THE POLICY SERVED BY THE EXCLUSIONARY RULE, THE TRIAL RESULTED
IN A RECORD OF AMPLY SUFFICIENT DETAIL AND DEPTH FROM WHICH THE
DETERMINATION MAY BE MADE.  WE THEREFORE DECLINE THE SUGGESTION OF THE
UNITED STATES, AS AMICUS CURIAE, SEE MORALES V. NEW YORK, 396 U. S. 102
(1969), TO REMAND THE CASE FOR FURTHER FACTUAL FINDINGS.  WE CONCLUDE
THAT THE STATE FAILED TO SUSTAIN THE BURDEN OF SHOWING THAT THE
EVIDENCE IN QUESTION WAS ADMISSIBLE UNDER WONG SUN. 

BROWN'S FIRST STATEMNT WAS SEPARATED FROM HIS ILLEGAL ARREST BY LESS
THAN TWO HOURS, AND THERE WAS NO INTERVENING EVENT OF SIGNIFICANCE
WHATSOEVER.  IN ITS ESSENTIALS, HIS SITUATION IS REMARKABLY LIKE THAT
OF JAMES WAH TOY IN WONG SUN.  /11/ WE COULD HOLD BROWN'S FIRST
STATEMENT ADMISSIBLE ONLY IF WE OVERRULE WONG SUN.  605 WE DECLINE TO
DO SO.  AND THE SECOND STATEMENT WAS CLEARLY THE RESULT AND THE FRUIT
OF THE FIRST.  /12/ 

THE ILLEGALITY HERE, MOREOVER, HAD A QUALITY OF PURPOSEFULNESS.  THE
IMPROPRIETY OF THE ARREST WAS OBVIOUS; AWARENESS OF THAT FACT WAS
VIRTUALLY CONCEDED BY THE TWO DETECTIVES WHEN THEY REPEATEDLY
ACKNOWLEDGED, IN THEIR TESTIMONY, THAT THE PURPOSE OF THEIR ACTION WAS
"FOR INVESTIGATION" OR FOR "QUESTIONING."  /13/ APP. 35, 43, 78, 81,
83, 88, 89, 94.  THE ARREST, BOTH IN DESIGN AND IN EXECUTION, WAS
INVESTIGATORY.  THE DETECTIVES EMBARKED UPON THIS EXPEDITION FOR
EVIDENCE IN THE HOPE THAT SOMETHING MIGHT TURN UP.  THE MANNER IN WHICH
BROWN'S ARREST WAS EFFECTED GIVES THE APPEARANCE OF HAVING BEEN
CALCULATED TO CAUSE SURPRISE, FRIGHT, AND CONFUSION. 

WE EMPHASIZE THAT OUR HOLDING IS A LIMITED ONE.  WE DECIDE ONLY THAT
THE ILLINOIS COURTS WERE IN ERROR IN ASSUMING THAT THE MIRANDA
WARNINGS, BY THEMSELVES, UNDER WONG SUN ALWAYS PURGE THE TAINT OF AN
ILLEGAL ARREST. 

THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

                                  IT IS SO ORDERED. 

/1/ THE BROTHER, HOWEVER, WHEN ASKED AT THE TRIAL WHETHER ANY OF THE
VICTIM'S FAMILY SUGGESTED TO THE POLICE THAT PETITIONER WAS POSSIBLY
RESPONSIBLE FOR THE VICTIM'S DEATH, ANSWERED:  "NOBODY ASKED."  APP.
74. 

/2/ THERE IS NO ASSERTION HERE THAT HE DID NOT UNDERSTAND THOSE
RIGHTS. 

/3/ IT WAS STIPULATED AT THE TRIAL THAT IF EXPERT TESTIMONY WERE
TAKEN, IT WOULD BE TO THE EFFECT THAT THE BULLET EVENTUALLY WAS
ASCERTAINED TO BE A "WIPED BULLET," THAT IS, THAT ITS SIDES WERE "CLEAN
AND THEREFORE IT WAS NOT BALLISTICALLY COMPARABLE TO ANY OTHER BULLETS,
SPECIFICALLY THE BULLETS TAKEN FROM THE BODY OF THE DECEASED, ROGER
CORPUS."  TR. 543. 

/4/ IN RESPONSE TO QUESTIONS FROM MR. CRILLY, BROWN STATED THAT HE
WAS EMPLOYED AT E. I. GUFFMAN COMPANY IN NILES, ILL., AND THAT HE WAS A
PUNCH PRESS OPERATOR, APP. 97, WHEREAS HE LATER CONCEDED THAT HE WORKED
AT ARNOLD SCHWINN BICYCLE COMPANY AND HAD NEVER WORKED AT ANY OTHER
PLACE.  ID., AT 63.  HE ALSO REMARKED IN THE CRILLY STATEMENT THAT HE
HAD COMPLETED THREE YEARS OF HIGH SCHOOL, ID., AT 96, WHEREAS LATER HE
CONCEDED THAT HE "NEVER WENT TO HIGH SCHOOL."  ID., AT 58. 

/5/ MEMBERS OF THE COURT ON OCCASION HAVE INDICATED DISENCHANTMENT
WITH THE RULE.  SEE, E. G., COOLIDGE V. NEW HAMPSHIRE, 403 U. S. 443,
490 (1971) (HARLAN, J., CONCURRING); ID., AT 492 (BURGER, C. J.,
DISSENTING IN PART AND CONCURRING IN PART); ID., AT 493 (BLACK, J.,
CONCURRING AND DISSENTING); ID., AT 510 (WHITE, J., CONCURRING AND
DISSENTING); BIVENS V. SIX UNKNOWN FEDERAL NARCOTICS AGENTS, 403 U. S.
388, 411 (1971) (BURGER, C. J., DISSENTING).  ITS EFFICACY HAS BEEN
SUBJECT TO SOME DISPUTE.  UNITED STATES V. CALANDRA, 414 U.S. 338, 348
N. 5 (1974).  SEE ELKINS V. UNITED STATES, 364 U.S. 206, 218 (1960). 

/6/ THE MIRANDA WARNINGS IN NO WAY INFORM A PERSON OF HIS FOURTH
AMENDMENT RIGHTS, INCLUDING HIS RIGHT TO BE RELEASED FROM UNLAWFUL
CUSTODY FOLLOWING AN ARREST MADE WITHOUT A WARRANT OR WITHOUT PROBABLE
CAUSE. 

/7/ A GREAT MAJORITY OF THE COMMENTATORS HAVE TAKEN THE SAME
POSITION.  SEE, E. G., PITLER, "THE FRUIT OF THE POISONOUS TREE"
REVISITED AND SHEPARDIZED, 56 CALIF. L. REV. 579, 603 - 604 (1968);
RUFFIN, OUT ON A LIMB OF THE POISONOUS TREE:  THE TAINTED WITNESS, 15
U. C. L. A. L. REV. 32, 70 (1967); COMMENT, 1 FLA. ST. L. REV. 533, 539
- 540 (1973); NOTE, ADMISSIBILITY OF CONFESSIONS MADE SUBSEQUENT TO AN
ILLEGAL ARREST:  WONG SUN V. UNITED STATES REVISITED, 61 J. CRIM. L.
207, 212 N. 58 (1970); COMMENT, SCOPE OF TAINT UNDER THE EXCLUSIONARY
RULE OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION, 114
U. PA. L. REV. 570, 574 (1966).  BUT SEE COMMENT, VOLUNTARY
INCRIMINATING STATEMENTS MADE SUBSEQUENT TO AN ILLEGAL ARREST--A
PROPOSED MODIFICATION OF THE EXCLUSIONARY RULE, 71 DICK.  L. REV. 573,
582 - 583 (1967). 

/8/ SEE UNITED STATES V. OWEN, 492 F. 2D 1100, 1107 (CA5), CERT.
DENIED, 419 U. S. 965 (1974); HALE V. HENDERSON, 485 F. 2D 266, 267 -
269 (CA6 1973), CERT. DENIED, 415 U. S. 930 (1974); UNITED STATES V.
FALLON, 457 F. 2D 15, 19 - 20 (CA10 1972); LEONARD V. UNITED STATES,
391 F. 2D 537, 538 (CA9 1968):  PENNSYLVANIA EX REL. CRAIG V. MARONEY,
348 F. 2D 22, 29 (CA3 1965). 

/9/ SEE UNITED STATES V. EDMONS, 432 F. 2D 577 (CA2 1970).  SEE ALSO
UNITED STATES EX REL. GOCKLEY V. MYERS, 450 F. 2D 232, 236 (CA3 1971),
CERT. DENIED, 404 U. S. 1063 (1972); UNITED STATES V. KILGEN, 445 F. 2D
287, 289 (CA5 1971). 

/10/ OUR APPROACH RELIES HEAVILY, BUT NOT EXCESSIVELY, ON THE
"LEARNING, GOOD SENSE, FAIRNESS AND COURAGE OF FEDERAL TRIAL JUDGES." 
NARDONE V. UNITED STATES, 308 U. S. 338, 342 (1939). 

/11/ THE SITUATION HERE IS THUS IN DRAMATIC CONTRAST TO THAT OF WONG
SUN HIMSELF.  WONG SUN'S CONFESSION, WHICH THE COURT HELD ADMISSIBLE,
CAME SEVERAL DAYS AFTER THE ILLEGALITY, AND WAS PRECEDED BY A LAWFUL
ARRAIGNMENT AND A RELEASE FROM CUSTODY ON HIS OWN RECOGNIZANCE.  WONG
SUN V. UNITED STATES, 371 U. S. 471, 491 (1963). 

/12/ THE FACT THAT BROWN HAD MADE ONE STATEMENT, BELIEVED BY HIM TO
BE ADMISSIBLE, AND HIS COOPERATION WITH THE ARRESTING AND INTERROGATING
OFFICERS IN THE SEARCH FOR CLAGGETT, WITH HIS ANTICIPATION OF LENIENCY,
BOLSTERED THE PRESSURES FOR HIM TO GIVE THE SECOND, OR AT LEAST
VITIATED ANY INCENTIVE ON HIS PART TO AVOID SELF-INCRIMINATION.  CF.
FAHY V. CONNECTICUT, 375 U. S. 85 (1963). 

/13/ DETECTIVE LENZ HAD BEEN A MEMBER OF THE CHICAGO POLICE FORCE
FOR 14 YEARS AND A DETECTIVE FOR 12 YEARS.  APP. 6.  DETECTIVE NOLAN
HAD BEEN A DETECTIVE ON THE FORCE FOR 5/12 YEARS.  ID., AT 87.     MR.
JUSTICE WHITE, CONCURRING IN THE JUDGMENT. 

INSOFAR AS THE COURT HOLDS (1) THAT DESPITE MIRANDA WARNINGS THE
FOURTH AND FOURTEENTH AMENDMENTS REQUIRE THE EXCLUSION FROM EVIDENCE OF
STATEMENTS OBTAINED AS THE FRUIT OF AN ARREST WHICH THE ARRESTING
OFFICERS KNEW OR SHOULD HAVE KNOWN WAS WITHOUT PROBABLE CAUSE AND
UNCONSTITUTIONAL, AND (2) THAT THE STATEMENTS OBTAINED IN THIS CASE
WERE IN THIS CATEGORY, I AM IN AGREEMENT AND THEREFORE CONCUR IN THE
JUDGMENT. 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING IN PART. 

I JOIN THE COURT INSOFAR AS IT HOLDS THAT THE PER SE RULE ADOPTED BY
THE ILLINOIS SUPREME COURT FOR DETERMINING THE ADMISSIBILITY OF
PETITIONER'S TWO STATEMENTS INADEQUATELY ACCOMMODATES THE DIVERSE
INTERESTS UNDERLYING THE FOURTH AMENDMENT EXCLUSIONARY RULE.  I WOULD,
HOWEVER, REMAND THE CASE FOR RECONSIDERATION UNDER THE GENERAL
STANDARDS ARTICULATED IN THE COURT'S OPINION AND ELABORATED HEREIN. 

        A 

THE ISSUE PRESENTED IN THIS CASE TURNS ON PROPER APPLICATION OF THE
POLICIES UNDERLYING THE FOURTH AMENDMENT EXCLUSIONARY RULE, NOT ON THE
FIFTH AMENDMENT OR THE PROPHYLAXIS ADDED TO THAT GUARANTEE BY MIRANDA
V. ARIZONA, 384 U. S. 436 (1966).  /1/ THE COURT RECOGNIZED IN WONG SUN
V. UNITED STATES, 371 U. S. 471 (1963), THAT THE FOURTH AMENDMENT
EXCLUSIONARY RULE APPLIES TO STATEMENTS OBTAINED FOLLOWING AN ILLEGAL
ARREST JUST AS IT DOES TO TANGIBLE EVIDENCE SEIZED IN A SIMILAR MANNER
OR OBTAINED PURSUANT TO AN OTHERWISE ILLEGAL SEARCH AND SEIZURE.  607
WONG SUN SQUARELY REJECTED, HOWEVER, THE SUGGESTION THAT THE
ADMISSIBILITY OF STATEMENTS SO OBTAINED SHOULD BE GOVERNED BY A SIMPLE
"BUT FOR" TEST THAT WOULD RENDER INADMISSIBLE ALL STATEMENTS GIVEN
SUBSEQUENT TO AN ILLEGAL ARREST.  ID., AT 487 - 488.  IN A SIMILAR
MANNER, THE COURT TODAY REFRAINS FROM ACCORDING DISPOSITIVE WEIGHT TO
THE SINGLE FACTOR OF MIRANDA WARNINGS.  I AGREE WITH EACH HOLDING. 
NEITHER OF THE REJECTED EXTREMES ADEQUATELY RECOGNIZES THE COMPETING
CONSIDERATIONS INVOLVED IN A DETERMINATION TO EXCLUDE EVIDENCE AFTER
FINDING THAT OFFICIAL POSSESSION OF THAT EVIDENCE WAS TO SOME DEGREE
CAUSED BY A VIOLATION OF THE FOURTH AMENDMENT. 

ON THIS RECORD, I CANNOT CONCLUDE AS READILY AS THE COURT THAT
ADMISSION OF THE STATEMENTS HERE AT ISSUE WOULD CONSTITUTE AN EFFECTIVE
OVERRULING OF WONG SUN.  SEE ANTE, AT 604 - 605.  ALTHOUGH WONG SUN
ESTABLISHES THE BOUNDARIES WITHIN WHICH THIS CASE MUST BE DECIDED, THE
INCOMPLETENESS OF THE RECORD LEAVES ME UNCERTAIN THAT IT COMPELS THE
EXCLUSION OF PETITIONER'S STATEMENTS.  THE STATEMENTS AT ISSUE IN WONG
SUN WERE ON THE TEMPORAL EXTREMES IN RELATION TO THE ILLEGAL ARREST. 
CF. COLLINS V. BETO, 348 F. 2D 823, 832, 834 - 836 (CA5 1965)
(FRIENDLY, J., CONCURRING).  TOY'S STATEMENT WAS OBTAINED IMMEDIATELY
AFTER HIS PURSUIT AND ARREST BY SIX AGENTS.  IT APPEARS TO HAVE BEEN A
SPONTANEOUS RESPONSE TO A QUESTION PUT TO HIM IN THE FRENZY OF THAT
EVENT, AND THERE IS NO INDICATION THAT THE AGENTS MADE ANY ATTEMPT TO
INFORM HIM OF HIS RIGHT TO REMAIN SILENT.  WONG SUN'S STATEMENT, BY
CONTRAST, WAS NOT GIVEN UNTIL AFTER HE WAS ARRAIGNED AND RELEASED ON
HIS OWN RECOGNIZANCE.  WONG SUN VOLUNTARILY RETURNED TO THE STATION A
FEW DAYS AFTER THE ARREST FOR QUESTIONING.  HIS STATEMENT WAS PRECEDED
BY AN OFFICIAL WARNING OF HIS RIGHT TO REMAIN SILENT AND TO HAVE
COUNSEL IF HE DESIRED.  /2/  THE COURT REJECTED THE GOVERNMENT'S
ASSERRTION THAT TOY'S STATEMENT RESULTED FROM AN INDEPENDENT ACT OF
FREE WILL SUFFICIENT TO PURGE THE CONSEQUENCES OF THE ILLEGAL ARREST. 
WONG SUN'S STATEMENT, HOWEVER, WAS DEEMED ADMISSIBLE.  GIVEN THE
CIRCUMSTANCES IN WHICH WONG SUN'S STATEMENT WAS OBTAINED, THE COURT
CONCLUDED THAT "THE CONNECTION BETWEEN THE ARREST AND THE STATEMENT HAD
'BECOME SO ATTENUATED AS TO DISSIPATE THE TAINT.'"  371 U. S., AT 491. 

LIKE MOST CASES IN WHICH THE ADMISSIBILITY OF STATEMENTS OBTAINED
SUBSEQUENT TO AN ILLEGAL ARREST IS CONTESTED, THIS CASE CONCERNS
STATEMENTS MORE REMOVED THAN THAT OF TOY FROM THE TIME AND
CIRCUMSTANCES OF THE ILLEGAL ARREST.  PETITIONER MADE HIS FIRST
STATEMENT SOME TWO HOURS FOLLOWING HIS ARREST, AFTER HE HAD BEEN GIVEN
MIRANDA WARNINGS.  THE COURT IS CORRECT IN NOTING THAT NO OTHER
SIGNIFICANT INTERVENING EVENT ALTERED THE RELATIONSHIP ESTABLISHED
BETWEEN PETITIONER AND THE OFFICERS BY THE ILLEGAL ARREST.  BUT THE
COURT'S CONCLUSION THAT ADMISSION OF THIS STATEMENT COULD BE ALLOWED
ONLY BY OVERRULING WONG SUN RESTS EITHER ON AN OVERLY RESTRICTIVE
INTERPRETATION OF THE ATTENUATION DOCTRINE, TO WHICH I CANNOT
SUBSCRIBE, OR ON ITS VIEW THAT THE ARREST WAS MADE FOR INVESTIGATORY
PURPOSES, A FACTUAL DETERMINATION THAT I THINK MORE APPROPRIATELY
SHOULD HAVE BEEN LEFT FOR DECISION IN THE FIRST INSTANCE BY THE STATE
COURTS. 

        B 

THE COURT'S REJECTION IN WONG SUN OF A "BUT FOR" TEST, REAFFIRMED
TODAY, ANTE, AT 603 - 604, RECOGNIZES THAT IN SOME CIRCUMSTANCES STRICT
ADHERENCE TO THE FOURTH AMENDMENT EXCLUSIONARY RULE IMPOSES GREATER
COST ON THE LEGITIMATE DEMANDS OF LAW ENFORCEMENT THAN CAN BE JUSTIFIED
BY THE RULE'S DETERRENT PURPOSES.  THE NOTION OF THE "DISSIPATION OF
THE TAINT" ATTEMPTS TO MARK THE POINT AT WHICH THE DETRIMENTAL
CONSEQUENCES OF ILLEGAL POLICE ACTION BECOME SO ATTENUATED THAT THE
DETERRENT EFFECT OF THE EXCLUSIONARY RULE NO LONGER JUSTIFIES ITS
COST.  APPLICATION OF THE WONG SUN DOCTRINE WILL GENERATE FACTSPECIFIC
CASES BEARING DISTINCT DIFFERENCES AS WELL AS SIMILARITIES, AND THE
QUESTION OF ATTENUATION INEVITABLY IS LARGELY A MATTER OF DEGREE.  THE
COURT TODAY IDENTIFIES THE GENERAL FACTORS THAT THE TRIAL COURT MUST
CONSIDER IN MAKING THIS DETERMINATION.  I THINK IT APPROPRIATE,
HOWEVER, TO ATTEMPT TO ARTICULATE THE POSSIBLE RELATIONSHIPS OF THOSE
FACTORS IN PARTICULAR, BROAD CATEGORIES OF CASES. 

ALL FOURTH AMENDMENT VIOLATIONS ARE, BY CONSTITUTIONAL DEFINITION,
"UNREASONABLE."  THERE ARE, HOWEVER, SIGNIFICANT PRACTICAL DIFFERENCES
THAT DISTINGUISH AMONG VIOLATIONS, DIFFERENCES THAT MEASURABLY ASSIST
IN IDENTIFYING THE KINDS OF CASES IN WHICH DISQUALIFYING THE EVIDENCE
IS LIKELY TO SERVE THE DETERRENT PURPOSES OF THE EXCLUSIONARY RULE. 
CF. UNITED STATES V. CALANDRA, 414 U. S. 338, 347 - 348 (1974);
SCHNECKLOTH V. BUSTAMONTE, 412 U. S. 218, 250 (1973) (POWELL, J.,
CONCURRING).  IN MY VIEW, THE POINT AT WHICH THE TAINT CAN BE SAID TO
HAVE DISSIPATED SHOULD BE RELATED, IN THE ABSENCE OF OTHER CONTROLLING
CIRCUMSTANCES, TO THE NATURE OF THAT TAINT. 

THAT POLICE HAVE NOT SUCCEEDED IN COERCING THE ACCUSED'S CONFESSION
THROUGH WILLFUL OR NEGLIGENT MISUSE OF THE POWER OF ARREST DOES NOT
REMOVE THE FACT THAT THEY MAY HAVE TRIED.  THE IMPERMISSIBILITY OF THE
ATTEMPT, AND THE EXTENT TO WHICH SUCH ATTEMPTS CAN BE DETERRED BY THE
USE OF THE EXCLUSIONARY RULE, ARE OF PRIMARY RELEVANCE IN DETERMING
WHETHER EXLUSION IS AN APPROPRIATE REMEDY.  THE BASIC PURPOSE OF THE
RULE, BRIEFLY STATED, IS TO REMOVE POSSIBLE MOTIVATIONS FOR ILLEGAL
ARRESTS.  GIVEN THIS PURPOSE THE NOTION OF VOLUNTARINESS HAS PRACTICAL
VALUE IN DECIDING WHETHER THE RULE SHOULD APPLY TO STATEMENTS REMOVED
FROM THE IMMEDIATE CIRCUMSTANCES OF THE ILLEGAL ARREST.  IF AN ILLEGAL
ARREST MERELY PROVIDES THE OCCASION OF INITIAL CONTACT BETWEEN THE
POLICE AND THE ACCUSED, AND BECAUSE OF TIME OR OTHER INTERVENING
FACTORS THE ACCUSED'S EVENTUAL STATEMENT IS THE PRODUCT OF HIS OWN
REFLECTION AND FREE WILL, APPLICATION OF THE EXCLUSIONARY RULE CAN
SERVE LITTLE PURPOSE:  THE POLICE NORMALLY WILL NOT MAKE AN ILLEGAL
ARREST IN THE HOPE OF EVENTUALLY OBTAINING SUCH A TRULY VOLUNTEERED
STATEMENT.  IN A SIMILAR MANNER, THE ROLE OF THE MIRANDA WARNINGS IN
THE WONG SUN INQUIRY IS INDIRECT.  TO THE EXTENT THAT THEY DISSIPATE
THE PSYCHOLOGICAL PRESSURES OF CUSTODIAL INTERROGATION, MIRANDA
WARNINGS SERVE TO ASSURE THAT THE ACCUSED'S DECISION TO MAKE A
STATEMENT HAS BEEN RELATIVELY UNAFFECTED BY THE PRECEEDING ILLEGAL
ARREST.  CORRESPONDINGLY, TO THE EXTENT THAT THE POLICE PERCEIVE
MIRANDA WARNINGS TO HAVE THIS EQUALIZING POTENTIAL, THEIR MOTIVATION TO
ABUSE THE POWER OF ARREST IS DIMINISHED.  BEARING THESE CONSIDERATIONS
IN MIND, AND RECOGNIZING THAT THE DETERRENT VALUE OF THE FOURTH
AMENDMENT EXCLUSIONARY RULE IS LIMITED TO CERTAIN KINDS OF POLICE
CONDUCT, THE FOLLOWING GENERAL CATEGORIES CAN BE IDENTIFIED. 

THOSE MOST READILY IDENTIFIABLE ARE ON THE EXTREMES:  THE FLAGRANTLY
ABUSIVE VIOLATION OF FOURTH AMENDMENT RIGHTS, ON THE ONE HAND, AND
"TECHNICAL" FOURTH AMENDMENT VIOLATIONS, ON THE OTHER.  IN MY VIEW,
THESE EXTREMES CALL FOR SIGNIFICANTLY DIFFERENT JUDICIAL RESPONSES. 

I WOULD REQUIRE THE CLEAREST INDICATION OF ATTENUATION IN CASES IN
WHICH OFFICIAL CONDUCT WAS FLAGRANTLY ABUSIVE OF FOURTH AMENDMENT
RIGHTS.  IF, FOR EXAMPLE, THE FACTORS RELIED ON BY THE POLICE IN
DETERMINING TO MAKE THE ARREST WERE SO LACKING IN INDICIA OF PROBABLE
CAUSE AS TO RENDER OFFICIAL BELIEF IN ITS EXISTENCE ENTIRELY
UNREASONABLE, OR IF THE EVIDENCE CLEARLY SUGGESTED THAT THE ARREST WAS
EFFECTUATED AS A PRETEXT FOR COLLOTERAL OBJECTIVES, CF. UNITED STATES
V. ROBINSON, 414 U. S. 218, 237, 238, N. 2 (1973) (POWELL, J.,
CONCURRING), OR THE PHYSICAL CIRCUMSTANCES OF THE ARREST UNNECESSARILY
INTRUSIVE ON PERSONAL PRIVACY, I WOULD CONSIDER THE EQUALIZING
POTENTIAL OF MIRANDA WARNINGS RARELY SUFFICIENT TO DISSIPATE THE
TAINT.  IN SUCH CASES THE DETERRENT VALUE OF THE EXCLUSIONARY RULE IS
MOST LIKELY TO BE EFFECTIVE, AND THE CORRESPONDING MANDATE TO PRESERVE
JUDICIAL INTEGRITY, SEE UNITED STATES V. PELTIER, ANTE, P. 531;
MICHIGAN V. TUCKER, 417 U. S. 433, 450 N. 25 (1974), MOST CLEARLY
DEMANDS THAT THE FRUITS OF OFFICIAL MISCONDUCT BE DENIED.  I THUS WOULD
REQUIRE SOME DEMONSTRABLY EFFECTIVE BREAK IN THE CHAIN OF EVENTS
LEADING FROM THE ILLEGAL ARREST TO THE STATEMENT, SUCH AS ACTUAL
CONSULTATION WITH COUNSEL OR THE ACCUSED'S PRESENTATION BEFORE A
MAGISTRATE FOR A DETERMINATION OF PROBABLE CAUSE, BEFORE THE TAINT CAN
BE DEEMED REMOVED, SEE GERSTEIN V. PUGH, 420 U. S. 103 (1975); CF.
JOHNSON V. LOUISIANA, 406 U. S. 356, 365 (1972); PARKER V. NORTH
CAROLINA, 397 U. S. 790, 796 (1970). 

AT THE OPPOSITE END OF THE SPECTRUM LIE "TECHNICAL" VIOLATIONS OF
FOURTH AMENDMENT RIGHTS WHERE, FOR EXAMPLE, OFFICERS IN GOOD FAITH
ARREST AN INDIVIDUAL IN RELIANCE ON A WARRANT LATER INVALIDATED /3/ OR
PURSUANT TO A STATUTE THAT SUBSEQUENTLY IS DECLARED UNCONSTITUTIONAL,
SEE UNITED STATES V. KILGEN, 445 F. 2D 287 (CA5 1971).  AS WE NOTED IN
MICHIGAN V. TUCKER, SUPRA. AT 447:  "THE DETERRENT PURPOSE OF THE
EXCLUSIONARY RULE NECESSARILY ASSUMES THAT THE POLICE HAVE ENGAGED IN
WILLFUL, OR AT THE VERY LEAST NEGLIGENT, CONDUCT WHICH HAS DEPRIVED THE
DEFENDANT OF SOME RIGHT."  IN CASES IN WHICH THIS UNDERLYING PREMISE IS
LACKING, THE DETERRENCE RATIONALE OF THE EXCLUSIONARY RULE DOES NOT
OBTAIN, AND I CAN SEE NO LEGITIMATE JUSTIFICATION FOR DEPRIVING THE
PROSECUTION OF RELIABLE AND PROBATIVE EVIDENCE.  THUS, WITH THE
EXCEPTION OF STATEMENTS GIVEN IN THE IMMEDIATE CIRCUMSTANCES OF THE
ILLEGAL ARREST--A CONSTRAINT I THINK IS IMPOSED BY EXISTING
EXCLUSIONARY-RULE LAW--I WOULD NOT REQUIRE MORE THAN PROOF THAT
EFFECTIVE MIRANDA WARNINGS WERE GIVEN AND THAT THE ENSUING STATEMENT
WAS VOLUNTARY IN THE FIFTH AMENDMENT SENSE.  ABSENT AGGRAVATING
CIRCUMSTANCES, I WOULD CONSIDER A STATEMENT GIVEN AT THE STATIONHOUSE
AFTER ONE HAS BEEN ADVISED OF MIRANDA RIGHTS TO BE SUFFICIENTLY REMOVED
FROM THE IMMEDIATE CIRCUMSTANCES OF THE ILLEGAL ARREST TO JUSTIFY ITS
ADMISSION AT TRIAL. 

BETWEEN THESE EXTREMES LIES A WIDE RANGE OF SITUATIONS THAT DEFY
READY CATEGORIZATION, AND I WILL NOT ATTEMPT TO EMBELLISH ON THE
FACTORS SET FORTH IN THE COURT'S OPINION OTHER THAN TO EMPHASIZE THAT
THE WONG SUN INQUIRY ALWAYS SHOULD BE CONDUCTED WITH THE DETERRENT
PURPOSE OF THE FOURTH AMENDMENT EXCLUSIONARY RULE SHARPLY IN FOCUS. 
SEE ALI MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE, ART. 150, P. 54 ET
SEQ. AND COMMENTARY THEREON, P. 375 ET SEQ. (PROP.  OFF.  DRAFT 1975). 
AND, IN VIEW OF THE INEVITABLY FACT-SPECIFIC NATURE OF THE INQUIRY, WE
MUST PLACE PRIMARY RELIANCE ON THE "LEARNING, GOOD SENSE, FAIRNESS AND
COURAGE" OFJUDGES WHO MUST MAKE THE DETERMINATION IN THE FIRST
INSTANCE.  NARDONE V. UNITED STATES, 308 U. S. 338, 342 (1939).  SEE
ANTE, AT 604 N. 10. 

C 

ON THE FACTS OF RECORD AS I VIEW THEM, IT IS POSSIBLE THAT THE
POLICE MAY HAVE BELIEVED REASONABLY THAT THERE WAS PROBABLE CAUSE FOR
PETITIONER'S ARREST.  ALTHOUGH THE TRIAL COURT CONDUCTED HEARINGS ON
PETITIONER'S MOTION TO SUPPRESS AND RECEIVED HIS TESTIMONY AND THAT OF
THE ARRESTING OFFICERS, ITS INQUIRY FOCUSED ON DETERMINING WHETHER
PETITIONER'S STATEMENTS WERE PRECEDED BY ADEQUATE MIRANDA WARNINGS AND
WERE MADE VOLUNTARILY.  THE COURT DID NOT INQUIRE INTO THE POSSIBLE
JUSTIFICATION, ACTUAL OR PERCEIVED, FOR THE ARREST.  INDEED, NUMEROUS
QUESTIONS ADDRESSED TO THE CIRCUMSTANCES OF THE ARREST ELICITED THE
STATE'S OBJECTION, WHICH WAS SUSTAINED.  APP. 14 - 15.  THE ILLINOIS
SUPREME COURT'S CONSIDERATION OF THE FACTUAL BASIS FOR ITS RULING
SIMILARLY FAILED TO FOCUS ON THESE RELEVANT ISSUES OR TO REST IN ANY
MEANINGFUL SENSE ON THE FACTORS SET FORTH IN THE COURT'S OPINION
TODAY.  AFTER DETERMINING THAT THE OFFICERS LACKED PROBABLE CAUSE FOR
PETITIONER'S ARREST, THE ILLINOIS COURT CONCLUDED SIMPLY THAT
EXAMINATION OF THE RECORD PERSUADED IT THAT "THE GIVING OF MIRANDA
WARNINGS . . . SERVED TO BREAK THE CAUSAL CONNECTION BETWEEN THE
ILLEGAL ARREST AND THE GIVING OF THE STATEMENTS."  56 ILL. 2D 312, 317,
307 N. E. 2D 356, 358 (1974). 

I AM NOT ABLE TO CONCLUDE ON THIS RECORD THAT THE OFFICERS ARRESTED
PETITIONER SOLELY FOR THE PURPOSE OF QUESTIONING, ANTE, AT 605, SEE
ALSO ANTE, AT 606 (WHITE, J., CONCURRING IN JUDGMENT).  TO BE SURE,
THERE IS EVIDENCE SUGGESTING, AS THE COURT NOTES, AN INVESTIGATORY
ARREST.  THE STRONGEST EVIDENCE ON THAT POINT IS THE INCONCLUSIIVE
TESTIMONY BY THE ARRESTING OFFICERS THEMSELVES.  BUT THE EVIDENCE IS
CONFLICTING.  RESPONDING TO QUESTIONS AS TO WHAT THEY TOLD PETITIONER
UPON HIS ARREST, THE OFFICERS TESTIFIED HE WAS ADVISED THAT THE ARREST
WAS FOR INVESTIGATION OF MURDER.  RESPONDING TO MORE POINTED QUESTIONS,
HOWEVER, ONE OF THE ARRESTING OFFICERS STATED THAT HE INFORMED
PETITIONER THAT HE WAS BEING ARRESTED FOR MURDER.  SEE APP. 16.  /4/ 
MOREOVER, OTHER EVIDENCE OF RECORD INDICATES THAT THE POLICE MAY WELL
HAVE BELIEVED THAT PROBABLE CAUSE EXISTED TO THINK THAT PETITIONER
COMMITTED THE CRIME OF WHICH HE ULTIMATELY WAS CONVICTED.  AS THE
OPINION OF THE ILLINOIS SUPREME COURT REVEALS, PETITIONER HAD BEEN
IDENTIFIED AS AN ACQUAINTANCE OF THE DECEASED, AND THE POLICE HAD BEEN
TOLD THAT PETITIONER WAS SEEN IN THE BUILDING WHERE THE DECEASED LIVED
ON THE DAY OF THE MURDER.  56 ILL. 2D, AT 315, 307 N. E. 2D, AT 357. 
IT IS ALSO PLAIN THAT THE INVESTIGATION HAD BEGUN TO FOCUS ON
PETITIONER.  FOR EXAMPLE, THE POLICE HAD GONE TO THE TROUBLE OF
OBTAINING A BULLET THAT PETITIONER HAD FIRED IN AN UNRELATED INCIDENT
FOR THE PURPOSE OF COMPARING IT WITH THE BULLETS THAT KILLED THE
VICTIM.  APP. 20.  THE OFFICERS ALSO OBTAINED PETITIONER'S PHOTOGRAPH
PRIOR TO SEEKING HIM OUT, AND THE CIRCUMSTANCES OF PETITIONER'S ARREST
INDICATE THAT THEIR SUSPICIONS OF HIM WERE QUITE PRONOUNCED. 

THE TRIAL COURT MADE NO DETERMINATION AS TO WHETHER PROBABLE CAUSE
EXISTED FOR PETITIONER'S ARREST.  /5/ THE ILLINOIS SUPREME COURT
RESOLVED THAT ISSUE, BUT DID NOT CONSIDER WHETHER THE OFFICERS MIGHT
REASONABLY, ALBEIT ERRONEOUSLY, HAVE THOUGHT THAT PROBABLE CAUSE
EXISTED.  RATHER THAN DECIDE THOSE MATTERS FOR THE FIRST TIME AT THIS
LEVEL, I THINK IT PREFERABLE TO ALLOW THE STATE COURTS TO RECONSIDER
THE CASE UNDER THE GENERAL GUIDELINES EXPRESSED IN TODAY'S OPINIONS. 
/6/ I THEREFORE WOULD REMAND FOR RECONSIDERATION /7/ WITH DIRECTIONS TO
CONDUCT SUCH FURTHER FACTUAL INQUIRIES AS MAY BE NECESSARY TO RESOLVE
THE ADMISSIBILITY ISSUE. 

/1/ EACH OF THESE GUARANTEES PROVIDES AN INDEPENDENT GROUND FOR
SUPPRESSION OF STATEMENTS AND THUS MAY MAKE IT UNNECESSARY IN MANY
CASES TO CONDUCT THE INQUIRY MANDATED BY WONG SUN V. UNITED STATES, 371
U. S. 471 (1963). 

/2/ TOY GAVE A SECOND STATEMENT UNDER CIRCUMSTANCES SIMILAR TO THOSE
IN WONG SUN'S CASE.  THE COURT DID NOT, HOWEVER, RULE AS TO THE
ADMISSIBILITY OF THIS STATEMENT, FINDING INSTEAD THAT IT LACKED
CORROBORATION AND WAS THEREFORE INSUFFICIENT TO SUPPORT TOY'S
CONVICTION.  WONG SUN V. UNITED STATES, 371 U. S., AT 488 - 491. 

/3/ I NOTE THAT THIS RESOLUTION MIGHT HAVE THE ADDED BENEFIT OF
ENCOURAGING THE POLICE TO SEEK A WARRANT WHENEVER POSSIBLE.  CF.
GERSTEIN V. PUGH, 420 U. S. 103, 113 (1975), AND SOURCES CITED
THEREIN. 

/4/ THE MAJORITY OF THE STATEMENTS CITED BY THE COURT ARE THE
OFFICERS' RESPONSES TO QUESTIONS INQUIRING AS TO WHAT THE OFFICERS TOLD
PETITIONER UPON ARRESTING HIM AND THUS ARE ONLY INDIRECTLY RELEVANT TO
THE ISSUE WHETHER THE OFFICERS MIGHT REASONABLY HAVE THOUGHT THEY THEN
HAD SUFFICIENT EVIDENCE TO SUPPORT A PROBABLE-CAUSE DETERMINATION. 
MOREOVER, AS NOTED ABOVE, THAT EVIDENCE IS CONTRADICTORY.  IN ONLY TWO
INSTANCES DURING THE TRIAL DID THE INQUIRY RELATE MORE DIRECTLY TO
WHETHER THE OFFICERS ARRESTED PETITIONER FOR QUESTIONING.  APP. 83,
94.  THE OFFICERS' RESPONSES TO THOSE QUESTIONS TEND TO SUPPORT THE
COURT'S CONCLUSION.  IN VIEW OF THE WEIGHT OF THE CONTRARY EVIDENCE,
HOWEVER, I THINK THAT THE MATTER SHOULD BE CONSIDERED IN THE FIRST
INSTANCE BY THE STATE COURTS. 

/5/ PETITIONER'S MOTION TO SUPPRESS ALLEGED THAT THE POLICE LACKED
REASONABLE GROUNDS FOR BELIEVING THAT HE COMMITTED A CRIME.  BUT THE
TESTIMONY AT THE HEARING FOCUSED PRIMARILY ON THE ISSUE OF THE ADEQUACY
OF THE MIRANDA WARNINGS AND THE VOLUNTARINESS OF PETITIONER'S
STATEMENTS.  AT THE CLOSE OF THE HEARING THE TRIAL COURT RULED, WITHOUT
ELABORATION OR FINDINGS OF FACT, THAT THE STATEMENTS WERE ADMISSIBLE. 
ID., AT 65.  CONCEIVABLY THE TRIAL COURT THOUGHT THAT PROBABLE CAUSE
EXISTED TO SUPPORT THE ARREST.  THE STATE ARGUED THIS POINT
UNSUCCESSFULLY ON APPEAL.  EQUALLY POSSIBLE, THE TRIAL COURT MIGHT HAVE
DETERMINED THAT THE PROBABLE-CAUSE ISSUE WAS A CLOSE ONE AND THAT,
VIEWING THE TOTALITY OF THE CIRCUMSTANCES WITH THAT FACT IN MIND, THE
STATEMENT SHOULD BE ADMITTED. 

/6/ THE SOLICITOR GENERAL HAS FILED A BRIEF AS AMICUS CURIAE IN
WHICH HE URGES THE COURT TO REMAND THE CASE FOR FURTHER FACTUAL
HEARINGS, EF. MORALES V. NEW YORK, 396 U. S. 102 (1969).  I CONCUR IN
THE COURT'S REJECTION OF THIS SUGGESTION, AGREEING THAT THE RECORD IS
ADEQUATE TO ALLOW US TO RULE ON THE MAJOR ISSUE--WHETHER ADVICE OF
MIRANDA RIGHTS CONSTITUTES A PER SE ATTENUATION OF THE TAINT OF AN
ILLEGAL ARREST IN ALL CASES.  I DO NOT AGREE, HOWEVER, THAT THE RECORD
IS ADEQUATE FOR THE COURT TO RULE, IN ADDITION, THAT THERE WAS
INSUFFICIENT ATTENUATION OF TAINT IN THIS CASE. 

/7/ PETITIONER'S SECOND STATEMENT, CORROBORATIVE OF THE FIRST, WAS
GIVEN MORE THAN SIX HOURS AFTER HIS ARREST AND SOME FIVE HOURS AFTER
THE INITIAL STATEMENT.  DURING THIS TIME PETITIONER--COOPERATING WITH
THE POLICE--HAD MADE TWO TRIPS AWAY FROM THE POLICE HEADQUARTERS IN
SEARCH OF CLAGGETT, WHOM HE HAD IDENTIFIED AS HIS CONFEDERATE IN THE
MURDER.  THIS SECOND STATEMENT WAS GIVEN TO AN ASSISTANT STATE'S
ATTORNEY WHO AGAIN HAD INFORMED PETITIONER OF HIS MIRANDA RIGHTS.  THE
COURT DEEMS THIS STATEMENT TO BE THE FRUIT OF THE FIRST ONE AND THUS
EXCLUDABLE ALONG WITH IT. 

I ALSO WOULD LEAVE THE QUESTION OF ADMISSIBILITY OF THIS STATEMENT
TO THE LOWER ILLINOIS COURTS.  OF COURSE, IF THE FIRST STATEMENT WERE
RULED ADMISSIBLE UNDER THE GENERAL GUIDELINES ARTICULATED IN TODAY'S
OPINION, IT WOULD FOLLOW THAT THE SECOND STATEMENT ALSO WOULD BE
ADMISSIBLE.  IN ANY EVENT, THE QUESTION WHETHER THERE WAS SUFFICIENT
ATTENUATION BETWEEN THE FIRST AND SECOND STATEMENTS TO RENDER THE
SECOND ADMISSIBLE IN SPITE OF THE INADMISSIBILITY OF THE FIRST PRESENTS
A FACTUAL ISSUE WHICH, LIKE THE FACTUAL ISSUE UNDERLYING THE POSSIBLE
ADMISSIBILITY OF THE FIRST STATEMENT, HAS NOT BEEN PASSED ON BY THE
STATE COURTS. 

ROBERT P. ISAACSON ARGUED THE CAUSE FOR PETITIONER PRO HAC VICE. 
WITH HIM ON THE BRIEF WERE JAMES J. DOHERTY AND JOHN T. MORAN. 

JAYNE A. CARR, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HER ON THE BRIEF WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, AND JAMES B. ZAGEL, ASSISTANT ATTORNEY GENERAL. 

SOLICITOR GENERAL BORK AND ACTING ASSISTANT ATTORNEY GENERAL KEENEY
FILED A MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE. 
..END :












IVAN ALLEN CO. V. UNITED STATES, 422 US 617 


       IVAN ALLEN CO. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 FIFTH CIRCUIT

        NO. 74 - 22.  ARGUED APRIL 14 - 15, 1975--DECIDED JUNE 26,

           1975; 493 F.2D 426, AFFIRMED. 


    IN DETERMINING THE APPLICABILITY OF 533 (A) OF THE INTERNAL

  REVENUE CODE OF 1954--WHICH PROVIDES A REBUTTABLE PRESUMPTION

  THAT A CORPORATION THAT HAS ACCUMULATED EARNINGS "BEYOND THE

  REASONABLE NEEDS OF THE BUSINESS" DID SO WITH "THE PURPOSE TO

  AVOID THE INCOME TAX WITH RESPECT TO SHAREHOLDERS"--LISTED AND

  READILY MARKETABLE SECURITIES OWNED BY THE CORPORATION AND

  PURCHASED OUT OF ITS EARNINGS AND PROFITS, ARE TO BE TAKEN INTO

  ACCOUNT, NOT AT THEIR COST TO THE CORPORATION, BUT AT THEIR NET

  LIQUIDATION VALUE.  PP. 624 - 635. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND BRENNAN, WHITE, MARSHALL, AND REHNQUIST, JJ.,

  JOINED.  POWELL, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS

  AND STEWART, JJ., JOINED, POST, P. 635. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

AS AMENDED, 26 U.S.C.  531 - 537, CONSTITUTE PART I OF SUBCHAPTER G OF
THE INCOME TAX SUBTITLE.  THESE SECTIONS SUBJECT MOST CORPORATIONS TO
AN "ACCUMULATED EARNINGS TAX."  SECTION 531 /1/ IMPOSES THE TAX UPON
THE "ACCUMULATED TAXABLE INCOME" OF EVERY CORPORATION THAT, AS 532 (A)
STATES, /2/ IS "FORMED OR AVAILED OF FOR THE PURPOSE OF AVOIDING THE
INCOME TAX WITH RESPECT TO ITS SHAREHOLDERS . . . BY PERMITTING
EARNINGS AND PROFITS TO ACCUMULATE INSTEAD OF BEING DIVIDED OR
DISTRIBUTED."  AND 533 (A) /3/ PROVIDES THAT "THE FACT THAT THE
EARNINGS AND PROFITS . . . ARE PERMITTED TO ACCUMULATE BEYOND THE
REASONABLE NEEDS OF THE BUSINESS SHALL BE DETERMINATIVE OF THE PURPOSE
TO AVOID THE INCOME TAX WITH RESPECT TO SHAREHOLDERS, UNLESS THE
CORPORATION BY THE PREPONDERANCE OF THE EVIDENCE SHALL PROVE TO THE
CONTRARY."  /4/ 

THE ISSUE HERE IS WHETHER, IN DETERMINING THE APPLICATION OF 533
(A), LISTED AND READILY MARKETABLE SECURITIES OWNED BY THE CORPORATION
AND PURCHASED OUT OF ITS EARNINGS AND PROFITS, ARE TO BE TAKEN INTO
ACCOUNT AT THEIR COST TO THE CORPORATION OR AT THEIR NET LIQUIDATION
VALUE, THAT IS, FAIR MARKET VALUE LESS THE EXPENSES OF, AND TAXES
RESULTING FROM, THEIR CONVERSION INTO CASH. 

        I 

THE PERTINENT FACTS ARE ADMITTED BY THE PLEADINGS OR ARE 

STIPULATED: 

THE PETITIONER, IVAN ALLEN COMPANY (THE TAXPAYER), IS A GEORGIA
CORPORATION INCORPORATED IN 1902 AND ACTIVELY ENGAGED IN THE BUSINESS
OF SELLING OFFICE FURNITURE, EQUIPMENT, AND SUPPLIES IN THE
METROPOLITAN ATLANTA AREA.  IT FILES ITS FEDERAL INCOME TAX RETURNS ON
THE ACCRUAL BASIS AND FOR THE FISCAL YEAR ENDED JUNE 30. 

FOR ITS FISCAL YEARS 1965 AND 1966, THE TAXPAYER PAID IN DUE COURSE
THE FEDERAL CORPORATION INCOME TAXES SHOWN ON ITS RETURNS AS FILED. 
TAXABLE INCOME SO REPORTED WAS $341,045.82 FOR 1965 AND $629,512.19 FOR
1966.  APP. 59, 84.  DURING FISCAL 1965 THE TAXPAYER PAID DIVIDENDS
CONSISTING OF CASH IN THE AMOUNT OF $48,945.30 AND 870 SHARES OF XEROX
CORPORATION COMMON THAT HAD BEEN CARRIED ON ITS BOOKS AT A COST OF
$6,564,34.  DURING FISCAL 1966 THE TAXPAYER PAID CASH DIVIDENDS OF
$50,267.49; IT ALSO DECLARED A 10% STOCK DIVIDEND.  ID., AT 56.  THE
DIVIDENDS PAID WERE SUBSTANTIALLY LESS THAN TAXABLE INCOME LESS FEDERAL
INCOME TAXES FOR THOSE YEARS. 

THROUGHOUT FISCAL 1965 AND 1966, THE TAXPAYER OWNED VARIOUS LISTED
AND UNLISTED MARKETABLE SECURITIES.  PROMINENT AMONG THESE WERE LISTED
SHARES OF COMMON STOCK AND LISTED CONVERTIBLE DEBENTURES OF XEROX
CORPORATION THAT, IN PRIOR YEARS, HAD BEEN PURCHASED OUT OF EARNINGS
AND PROFITS.  SPECIFICALLY, ON JUNE 30, 1965, THE CORPORATION OWNED
11,140 SHARES OF XEROX COMMON, WITH A COST OF $116,701 AND A THEN FAIR
MARKET VALUE OF $1,573,525, AND $30,600 XEROX CONVERTIBLE DEBENTURES,
WITH A COST TO IT OF $30,625 AND A THEN FAIR MARKET VALUE OF $48,424. 
ON JUNE 30, 1966, THE CORPORATION OWNED 10,090 SHARES OF XEROX COMMON,
WITH A COST OF $102,479 AND A THEN FAIR MARKET VALUE OF $2,479,617, AND
THE SAME $30,600 CONVERTIBLE DEBENTURES, WITH THEIR COST OF $30,625 AND
A THEN FAIR MARKET VALUE OF $69,768.  ID., AT 55. 

ACCORDING TO ITS RETURNS AS FILED, THE TAXPAYER'S UNDISTRIBUTED
EARNINGS AS OF JUNE 30, 1965, AND JUNE 30, 1966, WERE $2,200,184.77 AND
$2,360,146.52, RESPECTIVELY.  ID., AT 70, 91.  THE TAXPAYER POINTS OUT
THAT THE MARKETABLE PORTFOLIO ASSETS REPRESENTED AN INVESTMENT, AS
MEASURED BY COST, OF LESS THAN 7% OF ITS UNDISTRIBUTED EARNINGS AND OF
LESS THAN 5% OF ITS TOTAL ASSETS.  BRIEF FOR PETITIONER 4. 

IT IS ALSO APPARENT, HOWEVER, THAT THE XEROX DEBENTURES AND COMMON
SHARES HAD PROVED TO BE AN EXTRAORDINARILY PROFITABLE INVESTMENT,
ALTHOUGH, OF COURSE, BECAUSE THESE SECURITIES CONTINUED TO BE RETAINED,
THE GAINS THEREON WERE UNREALIZED FOR FEDERAL INCOME TAX PURPOSES.  THE
DEBENTURES HAD INCREASED IN FAIR MARKET VALUE MORE THAN 50% OVER COST
BY THE END OF JUNE 1965, AND MORE THAN 100% OVER COST ONE YEAR LATER;
THE COMMON SHARES HAD INCREASED IN FAIR MARKET VALUE MORE THAN 13 TIMES
THEIR COST BY JUNE 30, 1965, AND MORE THAN 24 TIMES THEIR COST BY JUNE
30, 1966. 

THROUGHOUT FISCAL 1965 AND 1966 THE TAXPAYER'S TWO MAJOR
SHAREHOLDERS, IVAN ALLEN, SR., AND IVAN ALLEN, JR., RESPECTIVELY OWNED
31.20% AND 45.46% OF THE TAXPAYER'S OUTSTANDING VOTING STOCK.  APP. 78,
104. 

FOLLOWING AN EXAMINATION OF THE TAXPAYER'S FEDERAL INCOME TAX
RETURNS FOR FISCAL 1965 AND 1966, THE COMMISSIONER OF INTERNAL REVENUE
DETERMINED THAT THE TAXPAYER HAD PERMITTED ITS EARNINGS AND PROFITS FOR
EACH OF THOSE YEARS TO ACCUMULATE BEYOND THE REASONABLE AND REASONABLY
ANTICIPATED NEEDS OF ITS BUSINESS, AND THAT ONE OF THE PURPOSES OF THE
ACCUMULATION FOR EACH YEAR WAS TO AVOID INCOME TAX WITH RESPECT TO ITS
SHAREHOLDERS.  BASED UPON THIS DETERMINATION, THE COMMISSIONER ASSESSED
AGAINST THE CORPORATION ACCUMULATED EARNINGS TAXES OF $77,383.98 AND
$73,131.87 FOR 1965 AND 1966, RESPECTIVELY. 

THE TAXPAYER PAID THESE TAXES AND THEREAFTER TIMELY FILED CLAIMS FOR
REFUND.  THE CLAIMS WERE NOT ALLOWED, AND THE TAXPAYER THEN INSTITUTED
THIS REFUND SUIT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

IT IS AGREED THAT THE TAXPAYER HAD REASONABLE BUSINESS NEEDS FOR
OPERATING CAPITAL AMOUNTING TO $1,198,309 AND $1,455,222 AT THE CLOSE
OF FISCAL 1965 AND FISCAL 1966, RESPECTIVELY.  ID., AT 56.  IT IS
STIPULATED, IN PARTICULAR, THAT IF THE TAXPAYER'S MARKETABLE SECURITIES
ARE TO BE TAKEN INTO ACCOUNT AT COST, ITS NET LIQUID ASSETS (CURRENT
ASSETS LESS CURRENT LIABILITIES), AT THE END OF EACH OF THOSE TAXABLE
YEARS, AND FULLY AVAILABLE FOR USE IN ITS BUSINESS, WERE THEN EXACTLY
EQUAL TO ITS REASONABLE BUSINESS NEEDS FOR OPERATING CAPITAL, THAT IS,
THE ABOVE-STATED FIGURES OF $1,198,309 AND $1,455,222.  IT WOULD
FOLLOW, ACCORDINGLY, THAT THE EARNINGS AND PROFITS OF THE TWO TAXABLE
YEARS HAD NOT BEEN PERMITTED TO ACCUMULATE BEYOND THE TAXPAYER'S
REASONABLE AND REASONABLY ANTICIPATED BUSINESS NEEDS, WITHIN THE
MEANING OF 533 (A), APP. 57, AND NO ACCUMULATED EARNINGS TAXES WERE
INCURRED.  IT IS STILL FUTHER STIPULATED, HOWEVER, THAT IF THE
TAXPAYER'S MARKETABLE SECURITIES ARE TO BE TAKEN INTO ACCOUNT AT FAIR
MARKET VALUE (LESS THE COST OF CONVERTING THEM INTO CASH), AS OF THE
ENDS OF THOSE FISCAL YEARS, /5/ THE TAXPAYER'S NET LIQUID ASSETS WOULD
THEN BE $2,235,029 AND $3,152,009, RESPECTIVELY.  ID., AT 56.  FROM
THIS IT WOULD FOLLOW THAT THE EARNINGS AND PROFITS OF THE TWO TAXABLE
YEARS HAD BEEN PERMITTED TO ACCUMULATE BEYOND THE TAXPAYER'S REASONABLE
AND REASONABLY ANTICIPATED BUSINESS NEEDS.  THEN, IF THOSE
ACCUMULATIONS HAD BEEN FOR "THE PURPOSE OF AVOIDING THE INCOME TAX WITH
RESPECT TO ITS SHAREHOLDERS," UNDER 532 (A), ACCUMULATED EARNINGS TAXES
WOULD BE INCURRED. 

THE ISSUE, THEREFORE, IS CLEAR AND PRECISE; WHETHER, FOR PURPOSES OF
APPLYING 533 (A), THE TAXPAYER'S READILY MARKETABLE SECURITIES SHOULD
BE TAKEN INTO ACCOUNT AT COST, AS THE TAXPAYER CONTENDS, OR AT NET
LIQUIDATION VALUE, AS THE GOVERNMENT CONTENDS. 

THE DISTRICT COURT HELD THAT THE TAXPAYER'S READILY MARKETABLE
SECURITIES WERE TO BE TAKEN INTO ACCOUNT AT COST.  ACCORDINGLY, IT
ENTERED JUDGMENT FOR THE PETITIONER-TAXPAYER.  349 F.SUPP.  1075
(1972).  THE COURT OBSERVED: 

     "CORPORATE TAXPAYERS SHOULD NOT BE PENALIZED FOR WISE

        INVESTMENTS;

        THEY SHOULD BE ALLOWED TO MAXIMIZE THEIR CAPITAL GAINS TAX

  ADVANTAGES IN ACCORDANCE WITH INTERNAL BUSINESS POLICIES AND

  STOCK MARKET CONDITIONS RATHER THAN BEING FORCED TO SELL

  SECURITIES WHICH MAY HAVE A HIGH VALUE ON AN ARBITRARILY SELECTED

  DATE MERELY BECAUSE THE UNREALIZED FAIR MARKET VALUE OF THE

SECURITIES ON THAT DATE WOULD TRIGGER THE ACCUMULATED EARNINGS

  TAX."  ID., AT 1077.  (FOOTNOTE OMITTED.) 

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED. 
493 F. 2D 426 (1974).  IT OBSERVED: 

"(THE SECURITIES INVOLVED IN THE CASE AT BAR ARE OF SUCH A HIGHLY
LIQUID CHARACTER AS TO BE READILY AVAILABLE FOR BUSINESS NEEDS THAT
MIGHT ARISE.  THUS THE APPRECIATED VALUE OF THESE SECURITIES SHOULD BE
TAKEN INTO ACCOUNT WHEN DETERMINING WHETHER THE CORPORATION HAS
ACCUMULATED PROFITS IN EXCESS OF REASONABLE BUSINESS NEEDS.  "THIS
DECISION DOES NOT FORCE THE CORPORATION TO LIQUIDATE THESE SECURITIES
AT ANY TIME WHEN A SALE WOULD BE FINANCIALLY UNWISE, BUT ONLY COMPELS
THE CORPORATION TO COMPLY WITH THE PROSCRIPTIONS OF THE CODE AND
REFRAIN FROM ACCUMULATING EXCESSIVE EARNINGS AND PROFITS."  ID., AT
428.  THE CASE WAS REMANDED, AS THE PARTIES HAD AGREED, APP. 57 - 58,
"FOR THE ADDITIONAL FACTUAL DETERMINATION (UNDER 532 (A)) OF WHETHER
ONE PURPOSE FOR THE ACCUMULATION WAS TO AVOID INCOME TAX ON BEHALF OF
THE SHAREHOLDERS."  493 F. 2D.  AT 428. 

BECAUSE THIS CONCLUSION WAS CLAIMED BY THE TAXPAYER TO CONFLICT IN
PRINCIPLE WITH AMERICAN TRADING & PRODUCTION CORP. V. UNITED STATES,
362 F. SUPP. 801 (MD. 1972), AFF'D WITHOUT PUBLISHED OPINION, 474 F. 2D
1341 (CA4 1973), /6/ AND BECAUSE OF THE IMPORTANCE OF THE ISSUE IN THE
ADMINISTRATION OF THE ACCUMULATED EARNINGS TAX, WE GRANTED CERTIORARI. 
419 U.S. 1067 (1974). 

        II 

UNDER OUR SYSTEM OF INCOME TAXATION, CORPORATE EARNINGS ARE SUBJECT
TO TAX AT TWO LEVELS.  FIRST, THERE IS THE TAX IMPOSED UPON THE INCOME
OF THE CORPORATION.  SECOND, WHEN THE CORPORATION, BY WAY OF A
DIVIDEND, DISTRIBUTES ITS EARNINGS TO ITS SHAREHOLDERS, THE
DISTRIBUTION IS SUBJECT TO THE TAX IMPOSED UPON THE INCOME OF THE
SHAREHOLDERS.  BECAUSE OF THE DISPARITY BETWEEN THE CORPORATE TAX RATES
AND THE HIGHER GRADATIONS OF THE RATES ON INDIVIDUALS, /7/ A
CORPORATION MAY BE UTILIZED TO REDUCE SIGNIFICANTLY ITS SHAREHOLDERS'
OVERALL TAX LIABILITY BY ACCUMULATING EARNINGS BEYOND THE REASONABLE
NEEDS OF THE BUSINESS.  WITHOUT SOME METHOD TO FORCE THE DISTRIBUTION
OF UNNEEDED CORPORATE EARNINGS, A CONTROLLING SHAREHOLDER WOULD BE ABLE
TO POSTPONE THE FULL IMPACT OF INCOME TAXES ON HIS SHARE OF THE
CORPORATION'S EARNINGS IN EXCESS OF ITS NEEDS.  SEE B. BITTKER & J.
EUSTICE, FEDERAL INCOME TAXATION OF CORPORATIONS AND SHAREHOLDERS 8.01
(3D ED. 1971); B. WOLFMAN, FEDERAL INCOME TAXATION OF BUSINESS
ENTERPRISE 864 (1971). 

IN ORDER TO FORECLOSE THIS POSSIBILITY OF USING THE CORPORATION AS A
MEANS OF AVOIDING THE INCOME TAX ON DIVIDENDS TO THE SHAREHOLDERS,
EVERY REVENUE ACT SINCE THE ADOPTION OF THE SIXTEENTH AMENDMENT IN 1913
HAS IMPOSED A TAX UPON UNNECESSARY ACCUMULATIONS OF CORPORATE EARNINGS
EFFECTED FOR THE PURPOSE OF INSULATING SHAREHOLDERS.  /8/ 

THE COURT HAS ACKNOWLEDGED THE OBVIOUS PURPOSE OF THE ACCUMULATION
PROVISIONS OF THE SUCCESSIVE ACTS: 

"AS THE THEORY OF THE REVENUE ACTS HAS BEEN TO TAX CORPORATE PROFITS
TO THE CORPORATION, AND THEIR RECEIPT ONLY WHEN DISTRIBUTED TO THE
STOCKHOLDERS, THE PURPOSE OF THE LEGISLATION IS TO COMPEL THE COMPANY
TO DISTRIBUTE ANY PROFITS NOT NEEDED FOR THE CONDUCT OF ITS BUSINESS SO
THAT, WHEN SO DISTRIBUTED, INDIVIDUAL STOCKHOLDERS WILL BECOME LIABLE
NOT ONLY FOR NORMAL

        BUT FOR SURTAX ON THE DIVIDENDS RECEIVED." 

      HELVERING

  V. CHICAGO STOCK YARDS CO., 318 U. S. 693, 699 (1943).  THIS WAS
REAFFIRMED IN UNITED STATES V. DONRUSS CO., 393 U. S. 297, 303 (1969). 

IT IS TO BE NOTED THAT THE FOCUS AND IMPOSITIONS OF THE ACCUMULATED
EARNINGS TAX ARE UPON "ACCUMULATED TAXABLE INCOME," 531.  THIS IS
DEFINED IN 535 (A) TO MEAN THE CORPORATION'S "TAXABLE INCOME," AS
ADJUSTED.  THE ADJUSTMENTS CONSIST OF THE VARIOUS ITEMS DESCRIBED IN
535 (B), INCLUDING FEDERAL INCOME TAX, THE DEDUCTION FOR DIVIDENDS
PAID, DEFINED IN 561, AND THE ACCUMULATED EARNINGS CREDIT DEFINED IN
535 (C).  THE ADJUSTMENTS PRESCRIBED BY 535 (A) AND (B) ARE DESIGNED
GENERALLY TO ASSURE THAT A CORPORATION'S "ACCUMULATED TAXABLE INCOME"
REFLECTS MORE ACCURATELY THAN "TAXABLE INCOME" THE AMOUNT ACTUALLY
AVAILABLE TO THE CORPORATION FOR BUSINESS PURPOSES.  THIS EXPLAINS THE
DEDUCTIONS FOR DIVIDENDS PAID AND FOR FEDERAL INCOME TAXES; NEITHER OF
THESE ENTERS INTO THE COMPUTATION OF TAXABLE INCOME.  OBVIOUSLY,
DIVIDENDS PAID AND FEDERAL INCOME TAXES DEPLETE CORPORATE RESOURCES AND
MUST BE RECOGNIZED IF THE CORPORATION'S ECONOMIC CONDITION IS TO BE
PROPERLY PERCEIVED.  CONVERSELY, 535 (B)(3) DISALLOWS, FOR EXAMPLE, THE
DEDUCTION, AVAILABLE TO A CORPORATION FOR INCOME TAX PURPOSES UNDER
243, ON ACCOUNT OF DIVIDENDS RECEIVED; DIVIDENDS RECEIVED ARE FREELY
AVAILABLE FOR USE IN THE CORPORATION'S BUSINESS. 

THE PURPORT OF THE ACCUMULATED EARNINGS TAX STRUCTURE ESTABLISHED BY
531 - 537, THEREFORE, IS TO DETERMINE THE CORPORATION'S TRUE ECONOMIC
CONDITION BEFORE ITS LIABILITY FOR TAX UPON "ACCUMULATED TAXABLE
INCOME" IS DETERMINED.  THE TAX, ALTHOUGH A PENALTY AND THEREFORE TO BE
STRICTLY CONSTRUED, COMMISSIONER V. ACKER, 361 U. S. 87, 91 (1959), IS
DIRECTED AT ECONOMIC REALITY. 

IT IS IMPORTANT TO EMPHASIZE THAT WE ARE CONCERNED HERE WITH A TAX
ON "ACCUMULATED TAXABLE INCOME," 531, AND THAT THE TAX ATTACHES ONLY
WHEN A CORPORATION HAS PERMITTED "EARNINGS AND PROFITS TO ACCUMULATE
INSTEAD OF BEING DIVIDED OR DISTRIBUTED," 532 (A).  WHAT IS ESSENTIAL
IS THAT THERE BE "INCOME" AND "EARNINGS AND PROFITS."  THIS AT ONCE
ELIMINATES, FROM THE MEASURE OF THE TAX ITSELF, ANY UNREALIZED
APPRECIATION IN THE VALUE OF THE TAXPAYER'S PORTFOLIO SECURITIES OVER
COST, FOR ANY SUCH UNREALIZED APPRECIATION DOES NOT ENTER INTO THE
COMPUTATION OF THE CORPORATION'S "INCOME" AND "EARNINGS AND PROFITS." 
THE CORPORATION'S READILY MARKETABLE PORTFOLIO SECURITIES AND THEIR
UNREALIZED APPRECIATION, NONETHELESS, ARE OF PROFOUND IMPORTANCE IN
MAKING THE ENTIRELY DISCRETE DETERMINATION WHETHER THE CORPORATION HAS
PERMITTED WHAT, CONCEDEDLY, ARE EARNINGS AND PROFITS TO ACCUMULATE
BEYOND ITS REASONABLE BUSINESS NEEDS.  IF THE SECURITIES, AS HERE, ARE
READILY AVAILABLE AS LIQUID ASSETS, THEN THE RECOGNIZED EARNINGS AND
PROFITS THAT HAVE BEEN ACCUMULATED MAY WELL HAVE BEEN UNNECESSARILY
ACCUMULATED, SO FAR AS THE REASONABLE NEEDS OF THE BUSINESS ARE
CONCERNED.  ON THE OTHER HAND, IF THOSE PORTFOLIO SECURITIES ARE NOT
LIQUID AND ARE NOT READILY AVAILABLE FOR THE NEEDS OF THE BUSINESS, THE
ACCUMULATION OF EARNINGS AND PROFITS MAY BE VIEWED IN A DIFFERENT
LIGHT.  UPON THIS ANALYSIS, NOT ONLY IS SUCH ACCUMULATION AS HAS TAKEN
PLACE IMPORTANT, BUT THE LIQUIDITY OTHERWISE AVAILABLE TO THE
CORPORATION IS HIGHLY SIGNIFICANT.  IN ANY EVENT--AND WE REPEAT--THE
TAX IS DIRECTED AT THE ACCUMULATED TAXABLE INCOME AND AT EARNINGS AND
PROFITS.  THE TAX ITSELF IS NOT DIRECTED AT THE UNREALIZED APPRECIATION
OF THE LIQUID ASSETS IN THE SECURITIES PORTFOLIO.  THE LATTER BECOMES
IMPORTANT ONLY IN MEASURING REASONABLENESS OF ACCUMULATION OF THE
EARNINGS AND PROFITS THAT OTHERWISE INDEPENDENTLY EXIST.  WHAT WE LOOK
AT, THEN, IN ORDER TO DETERMINE ITS REASONABLENESS OR UNREASONABLENESS,
IN THE LIGHT OF THE NEEDS OF THE BUSINESS, IS ANY FAILURE ON THE PART
OF THE CORPORATION TO DISTRIBUTE THE EARNINGS AND PROFITS IT HAS. 

ACCUMULATION BEYOND THE REASONABLE NEEDS OF THE BUSINESS, BY THE
LANGUAGE OF 533 (A), IS "DETERMINATIVE OF THE PURPOSE" TO AVOID TAX
WITH RESPECT TO SHAREHOLDERS UNLESS THE CORPORATION PROVES THE CONTRARY
BY A PREPONDERANCE OF THE EVIDENCE.  THE BURDEN OF PROOF, THUS, IS ON
THE TAXPAYER.  A REBUTTABLE PRESUMPTION IS STATUTORILY IMPOSED.  TO BE
SURE, WE DEAL HERE, IN A SENSE, WITH A STATE OF MIND.  BUT IT HAS BEEN
SAID THAT THE STATUTE, WITHOUT THE SUPPORT OF THE PRESUMPTION, WOULD
"BE PRACTICALLY UNENFORCEABLE . . . ."  UNITED BUSINESS CORP. V.
COMMISSIONER, 62 F. 2D 754, 755 (CA2), CERT. DENIED, 290 U. S. 635
(1933).  WHAT IS REQUIRED, THEN, IS A COMPARISON OF ACCUMULATED
EARNINGS AND PROFITS WITH "THE REASONABLE NEEDS OF THE BUSINESS." 
BUSINESS NEEDS ARE CRITICAL.  AND NEED, PLAINLY, TO USE MATHEMATICAL
TERMINOLOGY, IS A FUNCTION OF A CORPORATION'S LIQUIDITY, THAT IS, THE
AMOUNT OF IDLE CURRENT ASSETS AT ITS DISPOSAL.  THE QUESTION,
THEREFORE, IS NOT HOW MUCH CAPITAL OF ALL SORTS, BUT HOW MUCH IN THE
WAY OF QUICK OR LIQUID ASSETS, IT IS REASONABLE TO KEEP ON HAND FOR THE
BUSINESS.  UNITED BLOCK CO. V. HELVERING, 123 F. 2D.  704, 705 (CA2
1941), CERT. DENIED, 315 U. S. 812 (1942); SMOOT SAND & GRAVEL CORP. V.
COMMISSIONER, 274 F. 2D 495, 501 (CA4), CERT. DENIED, 362 U. S. 976
(1960) (LIQUID ASSETS PROVIDE "A STRONG INDICATION" OF THE PURPOSE OF
THE ACCUMULATION); ELECTRIC REGULATOR CORP. V. COMMISSIONER, 336 F.2D
339, 344 (CA2 1964), NOVELELART MFG. CL. V. COMMISSIONER, 52 T. C. 794,
806 (1969), AFF'D, 434 F. 2D 1011 (CA6 1970), CERT. DENIED, 403 U. S.
918 (1971); JOHN P. SCRIPPS NEWSPAPERS V. COMMISSIONER, 44 T. C. 453,
467 (1965).  /9/ 

THE TAXPAYER ITSELF RECOGNIZES, AND ACCEPTS, THE LIQUIDITY CONCEPT
AS A BASIC FACTOR, FOR IT "HAS AGREED THAT THE FULL AMOUNT OF ITS
REALIZED EARNINGS INVESTED IN ITS LIQUID ASSETS--THEIR COST--SHOULD BE
TAKEN INTO ACCOUNT IN DETERMINING THE APPLICABILITY OF SECTION 533
(A)."  BRIEF FOR PETITIONER 15.  IT CONCEDES THAT IF THIS WERE NOT SO,
"THE TAX COULD BE AVOIDED BY ANY FORM OF INVESTMENT OF EARNINGS AND
PROFITS."  REPLY BRIEF FOR PETITIONER 5.  BUT THE TAXPAYER WOULD STOP
AT THE POINT OF COST AND, WHEN IT DOES SO, IS COMPELLED TO COMPARE
EARNINGS AND PROFITS--NOT THE AMOUNT OF READILY AVAILABLE LIQUID
ASSETS, NET--WITH REASONABLE BUSINESS NEEDS. 

WE DISAGREE WITH THE TAXPAYER AND CONCLUDE THAT COST IS NOT THE
STOPPING POINT; THAT THE APPLICATION OF THE ACCUMULATED EARNINGS TAX,
IN A GIVEN CASE, MAY WELL DEPEND ON WHETHER THE CORPORATION HAS
AVAILABLE READILY MARKETABLE PORTFOLIO SECURITIES; AND THAT THE PROPER
MEASURE OF THOSE SECURITIES, FOR PURPOSES OF THE TAX, IS THEIR NET
REALIZABLE VALUE.  COST OF THE MARKETABLE SECURITIES ON THE ASSETS SIDE
OF THE CORPORATION'S BALANCE SHEET WOULD APPEAR TO BE LARGELY AN
IRRELEVANT GAUGE OF THE TAXPAYER'S TRUE FINANCIAL CONDITION.  /10/
CERTAINLY, A LENDER WOULD NOT EVALUATE A POTENTIAL BORROWER'S
MARKETABLE SECURITIES AT COST.  REALISTIC FINANCIAL CONDITION IS THE
FOCUS OF THE LENDER'S INQUIRY.  IT ALSO MUST BE THE FOCUS OF THE
COMMISSIONER'S INQUIRY IN DETERMINING THE APPLICABILITY OF THE
ACCUMULATED EARNINGS TAX.  /11/ 

THIS TAXPAYER'S SECURITIES, BEING LIQUID AND READILY MARKETABLE,
CLEARLY WERE AVAILABLE FOR THE BUSINESS NEEDS OF THE CORPORATION, AND
THEIR FAIR MARKET VALUE, NET, WAS SUCH THAT, ACCORDING TO THE
STIPULATION, THE TAXPAYER'S UNDISTRIBUTED EARNINGS AND PROFITS FOR THE
TWO FISCAL YEARS IN QUESTION WERE PERMITTED TO ACCUMULATE BEYOND THE
REASONABLE AND REASONABLY ANTICIPATED NEEDS OF THE BUSINESS. 

III 

BEARING DIRECTLY UPON THE ISSUE BEFORE US IS HELVERING V. NATIONAL
GROCERY CO., 304 U. S. 282 (1938).  THERE THE FACT SITUATION WAS THE
REVERSE OF THE PRESENT CASE INASMUCH AS THAT TAXPAYER CORPORATION HAD
UNREALIZED LOSSES IN THE VALUE OF MARKETABLE SECURITIES IT WAS
CONTINUING TO HOLD.  AFTER THE COURT UPHELD THE ACCUMULATED EARNINGS
TAX AGAINST CONSTITUTIONAL ATTACK, ID., AT 286 - 290, IT OBSERVED:
"DEPRECIATION IN ANY OF THE ASSETS IS EVIDENCE TO BE CONSIDERED BY THE
COMMISSIONER AND THE BOARD (OF TAX APPEALS) IN DETERMINING THE ISSUE OF
FACT WHETHER THE ACCUMULATION OF PROFITS WAS IN EXCESS OF THE
REASONABLE NEEDS OF THE BUSINESS."  ID., AT 291.  IT WENT ON TO HOLD,
HOWEVER, THAT SUCH DEPRECIATION "DOES NOT, AS MATTER OF LAW, PRECLUDE A
FINDING THAT THE ACCUMULATION OF THE YEAR'S PROFITS WAS IN EXCESS OF
THE REASONABLE NEEDS OF THE BUSINESS."  IBID.  INDEED, THE COURT HELD
THAT THE EVIDENCE SUPPORTED THE BOARD'S FINDING THAT THE ACCUMULATION
OF SURPLUS BY THE TAXPAYER WAS TO ENABLE ITS SOLE SHAREHOLDER TO ESCAPE
SURTAXES.  IT FOCUSED ON BONDS AND STOCKS HELD BY THE CORPORATION,
DESCRIBED THEM AS IN NO WAY RELATED TO THE BUSINESS, AND CONCLUDED THAT
"THERE WAS NO NEED OF ACCUMULATING ANY PART OF THE YEAR'S EARNINGS FOR
THE PURPOSE OF FINANCING THE BUSINESS."  ID., AT 291 - 292.  THAT
LANGUAGE FORECLOSES THE PRESENT TAXPAYER'S CASE. 

THE PRECEDENT OF NATIONAL GROCERY HAS BEEN APPLIED IN ACCUMULATED
EARNINGS TAX CASES, WITH COURTS TAKING INTO ACCOUNT THE FAIR MARKET
VALUE OF LIQUID, APPRECIATED SECURITIES.  BATTELSTEIN INVESTMENT CO. V.
UNITED STATES, 442 F. 2D 87, 89 (CA5 1971); CHEYENNE NEWSPAPERS, INC.
V. COMMISSIONER, 494 F. 2D 429, 434 - 435 (CA10 1974); HENRY VAN
HUMMELL, INC. V. COMMISSIONER, 23 T.C.M. 1765, 1779 (1964), AFF'D, 364
F. 2D 746 (CA10 1966), CERT. DENIED, 386 U. S. 956 (1967); GOLCONDA
MINING CORP. V. COMMISSIONER, 58 T. C. 139, SUPPLEMENTAL OPINION 58 T.
C. 736, 737 - 739 (1972), REV'D ON OTHER GROUNDS, 507 F. 2D 594 (CA9
1974); READY PAVING & CONSTR.  CO. V. COMMISSIONER, 61 T. C. 826, 840 -
841 (1974).  BUT SEE HARRY A. KOCH CO. V. VINAL, 228 F. SUPP. 782, 784
(NEB. 1964). 

AMERICAN TRADING & PRODUCTION CORP. V. UNITED STATES, 362 F. SUPP.
801 (MD. 1972), AFF'D WITHOUT PUBLISHED OPINION, 474 F. 2D 1341 (CA4
1973), WHICH THE TAXPAYER CONTINUES TO ASSERT IS IN CONFLICT WITH THE
PRESENT CASE, DESERVES MENTION.  THE TAXPAYER THERE HAD ACCUMULATED
EARNINGS AND PROFITS OF SOMETHING LESS THAN $10 MILLION.  ITS
ANTICIPATED BUSINESS NEEDS WERE ABOUT $12 MILLION.  BUT IT OWNED
STOCKS, PRIMARILY OIL SHARES, HAVING A TOTAL COST OF $5,593,319 AND AN
AGGREGATE CURRENT MARKET VALUE IN EXCESS OF $100 MILLION.  THE DISTRICT
COURT EXCLUDED THESE STOCKS IN MAKING ITS DETERMINATION WHETHER
EARNINGS HAD ACCUMULATED IN EXCESS OF REASONABLE BUSINESS NEEDS.  IT
DID SO ON SEVERAL GROUNDS; THAT THE SHARES CONSTITUTED "ORIGINAL
CAPITAL," A TERM THE COURT USED IN THE SENSE THAT THE STOCKS "WERE
PROPERLY HELD AND RETAINED AS AN INTEGRAL PART OF ITS BUSINESS AND WERE
UTILIZED . . . AS A BASE FOR BORROWINGS FOR THE NEEDS OF OTHER PARTS OF
ITS BUSINESS," 362 F. SUPP., AT 810; THAT THE STATUTE WAS NOT INTENDED
TO REQUIRE THE CONVERSION OF ASSETS OF THAT KIND INTO CASH IN ORDER TO
MEET BUSINESS NEEDS, EVEN THOUGH THAT CAPITAL "HAS EXPLOSIVELY
INCREASED IN VALUE," ID., AT 808; AND THAT "THERE WAS SUBSTANTIAL
EVIDENCE" THAT THE STOCKS "WERE NOT READILY SALEABLE," ID., AT 809. 

WHATEVER MAY BE THE MERIT OR DEMERIT OF THE OTHER GROUNDS ASSERTED
BY THE DISTRICT COURT IN AMERICAN TRADING--AND WE EXPRESS NO VIEW
THEREON--WE ARE SATISFIED THAT THE COURT'S DETERMINATION AS TO THE
ABSENCE OF READY SALABILITY, UNDER ALL THE CIRCUMSTANCES, PROVIDES A
SUFFICIENT POINT OF DISTINCTION OF THAT CASE FROM THIS ONE, SO THAT IT
PROVIDES MEAGER, IF ANY, CONTRARY PRECEDENT OF SUBSTANCE TO OUR
CONCLUSION HERE. 

        IV 

THE ARGUMENTS ADVANCED BY THE TAXPAYER DO NOT PERSUADE US: 

1.  THE TAXPAYER, OF COURSE, QUITE CORRECTLY INSISTS THAT UNREALIZED
APPRECIATION OF PORTFOLIO SECURITIES DOES NOT ENTER INTO THE
DETERMINATION OF "EARNINGS AND PROFITS," WITHIN THE MEANING OF 533 LA.
AS NOTED ABOVE, WE AGREE.  THE GOVERNMENT DOES NOT CONTEND OTHERWISE. 
IT DOES NOT FOLLOW, HOWEVER, THAT UNREALIZED APPRECIATION IS NEVER TO
BE TAKEN INTO ACCOUNT FOR PURPOSES OF THE ACCUMULATED EARNINGS TAX. 

AS HAS BEEN POINTED OUT, THE TAX IS IMPOSED ONLY UPON ACCUMULATED
TAXABLE INCOME, AND THIS IS DEFINED TO MEAN TAXABLE INCOME AS ADJUSTED
BY FACTORS THAT HAVE BEEN DESCRIBED.  THE QUESTION IS NOT WHETHER
UNREALIZED APPRECIATION ENTERS INTO THE DETERMINATION OF EARNINGS AND
PROFITS, WHICH IT DOES NOT, BUT WHETHER THE ACCUMULATED TAXABLE INCOME,
IN THE DETERMINATION OF WHICH EARNINGS AND PROFITS HAVE ENTERED,
JUSTIFIABLY MAY BE RETAINED RATHER THAN DISTRIBUTED AS DIVIDENDS.  THE
TAX FOCUSES, THEREFORE, ON CURRENT INCOME AND ITS RETENTION OR
DISTRIBUTION.  IF THE CORPORATION HAS FREELY AVAILABLE LIQUID ASSETS IN
EXCESS OF ITS REASONABLE BUSINESS NEEDS, THEN ACCUMULATION OF TAXABLE
INCOME MAY BE UNREASONABLE AND THE TAX MAY ATTACH.  UTILIZABLE
AVAILABILITY OF THE PORTFOLIO ASSETS IS MEASURED REALISTICALLY ONLY AT
NET REALIZABLE VALUE.  THE FACT THAT THIS VALUE IS NOT INCLUDED IN
EARNINGS AND PROFITS DOES NOT FORECLOSE ITS BEING CONSIDERED IN
DETERMINING WHETHER THE CORPORATION IS SUBJECT TO THE ACCUMULATED
EARNINGS TAX. 

2.  WE SEE NOTHING IN THE "REALIZATION OF INCOME" CONCEPT OF EISNER
V. MACOMBER, 252 U. S. 189 (1920), THAT HAS SIGNIFICANCE FOR THE ISSUE
PRESENTLY UNDER CONSIDERATION.  THERE THE COURT HELD THAT A DIVIDEND OF
COMMON SHARES ISSUED BY A CORPORATION HAVING ONLY COMMON OUTSTANDING
WAS NOT INCLUDABLE IN THE SHAREHOLDER'S GROSS INCOME FOR INCOME TAX
PURPOSES.  THE DECISION MAY HAVE PROMPTED THE SHIFT, NOTED ABOVE AND
EFFECTED BY THE REVENUE ACT OF 1921, OF THE INCIDENCE OF THE
ACCUMULATED EARNINGS TAX FROM THE SHAREHOLDERS TO THE CORPORATION.  THE
CASE ALSO EMPHASIZES THE REALIZATION OF INCOME WITH RESPECT TO A TAX ON
THE SHAREHOLDER.  WE NOTE AGAIN, HOWEVER, THAT THE ACCUMULATED EARNINGS
TAX IS NOT ON UNREALIZED APPRECIATION OF THE PORTFOLIO SECURITIES.  IT
RESTS UPON, AND ONLY UPON, THE CORPORATION'S CURRENT TAXABLE INCOME
ADJUSTED TO CONSTITUTE "ACCUMULATED TAXABLE INCOME." 

3.  THE TAXPAYER ALSO ARGUES THAT THE EFFECT OF THE COURT OF APPEALS
DECISION IS TO FORCE THE TAXPAYER TO CONVERT ITS APPRECIATED ASSETS IN
ORDER TO MEET ITS BUSINESS NEEDS.  IT SUGGESTS THAT MANAGEMENT SHOULD
BE ENTITLED TO FINANCE BUSINESS NEEDS WITHOUT RESORTING TO UNREALIZED
APPRECIATION.  THE ARGUMENT, PLAINLY, GOES TOO FAR.  ON THE TAXPAYER'S
OWN THEORY THAT MARKETABLE SECURITIES MAY BE TAKEN INTO ACCOUNT AT
THEIR COST, A SITUATION EASILY MAY BE IMAGINED WHERE SOME CONVERSION
INTO CASH BECOMES NECESSARY, IF THE CORPORATION IS TO AVOID THE
ACCUMULATED EARNINGS TAX. 

THAT OUR DECISION DOES NOT INTERFERE WITH CORPORATE MANAGEMENT'S
EXERCISE OF SOUND BUSINESS JUDGMENT, AND THAT IT DOES NOT AMOUNT TO A
DICTATION TO MANAGEMENT AS TO WHEN APPRECIATED ASSETS ARE TO BE
LIQUIDATED, WAS APTLY ANSWERED BY THE COURT OF APPEALS: 

"THIS DECISION DOES NOT FORCE THE CORPORATION TO LIQUIDATE THESE
SECURITIES AT ANY TIME WHEN A SALE WOULD BE FINANCIALLY UNWISE, BUT
ONLY COMPELS THE CORPORATION TO COMPLY WITH THE PROSCRIPTIONS OF THE
CODE AND REFRAIN FROM ACCUMULATING EXCESSIVE EARNINGS AND PROFITS. 
THAT TAXPAYER, AS A CONSEQUENCE OF ITS OWN SOUND JUDGMENT IN MAKING
PROFITABLE INVESTMENTS, MUST SELL, EXCHANGE OR DISTRIBUTE TO THE
SHAREHOLDERS ASSETS IN ORDER TO AVOID AN EXCESSIVE ACCUMULATION OF
EARNINGS AND THUS COMPLY WITH THE CODE'S REQUIREMENTS IS NO
JUSTIFICATION FOR PRECLUDING ITS

        APPLICATION."  493 F.2D, AT 428.  WE MIGHT ADD THAT THE
EXISTENCE OF THE CODE'S PROVISIONS FOR THE ACCUMULATED EARNINGS TAX, OF
COURSE, WILL AFFECT MANAGEMENT'S DECISION.  SO, TOO, DOES THE VERY
EXISTENCE OF THE CORPORATE INCOME TAX ITSELF.  IN THIS RESPECT, THE ONE
IS NO MORE OFFENSIVE THAN THE OTHER.  ASTUTE MANAGEMENT IN THESE TAX
CONSCIOUS DAYS IS NOT THAT HELPLESS, AND SHRINKAGE, UPON LIQUIDATION,
OF ONE-FOURTH OF THE APPRECIATION HARDLY EQUATES WITH LOSS.  SUCH
BUSINESS DECISION AS IS NECESSITATED WAS EXPRESSLY INTENDED BY THE
CONGRESS.  ALL THAT IS REQUIRED IS THE DISGORGING, AT THE MOST, OF THE
TAXABLE YEAR'S "ACCUMULATED TAXABLE INCOME."     4.  IT IS NO ANSWER TO
SUGGEST THAT OUR DECISION HERE MAY CONFLICT WITH STANDARD ACCOUNTING
PRACTICE.  THE COURT HAS NOT HESITATED TO APPLY CONGRESSIONAL POLICY
UNDERLYING A REVENUE STATUTE EVEN WHEN IT DOES CONFLICT WITH AN
ESTABLISHED ACCOUNTING PRACTICE.  SEE, E. G., SCHLUDE V. COMMISSIONER,
372 U. S. 128 (1963); AMERICAN AUTOMOBILE ASSN. V. UNITED STATES, 367
U. S. 687, 692 - 694 (1961).  IT IS OF SOME INTEREST THAT THE TAXPAYER
ITSELF, FOR THE TAX YEARS UNDER CONSIDERATION, REFLECTED THE MARKET
VALUE AS WELL AS THE COST OF ITS MARKETABLE SECURITIES ON ITS BALANCE
SHEETS.  APP. 112, 118.  THIS APPEARS TO BE IN LINE WITH PRESENTLY
ACCEPTED PRACTICE.  SEE R. KESTER, ADVANCED ACCOUNTING 117 - 118, 122 -
124 (4TH ED. 1946). 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

          IT IS SO ORDERED. 

/1/ "531.  IMPOSITION OF ACCUMULATED EARNINGS TAX. 

"IN ADDITION TO OTHER TAXES IMPOSED BY THIS CHAPTER, THERE IS HEREBY
IMPOSED FOR EACH TAXABLE YEAR ON THE ACCUMULATED TAXABLE INCOME (AS
DEFINED IN SECTION 535) OF EVERY CORPORATION DESCRIBED IN SECTION 532,
AN ACCUMULATED EARNINGS TAX EQUAL TO THE SUM OF-- 

     "(1) 27 1/2 PERCENT OF THE ACCUMULATED TAXABLE INCOME NOT IN
EXCESS OF $100,000, PLUS 

     "(2) 38 1/2 PERCENT OF THE ACCUMULATED TAXABLE INCOME IN
EXCESS OF $100,000." 

/2/ "532.  CORPORATIONS SUBJECT TO ACCUMULATED EARNINGS TAX. 

     "(A) GENERAL RULE. 

"THE ACCUMULATED EARNINGS TAX IMPOSED BY SECTION 531 SHALL APPLY TO
EVERY CORPORATION (OTHER THAN THOSE DESCRIBED IN SUBSECTION (B)) FORMED
OR AVAILED OF FOR THE PURPOSE OF AVOIDING THE INCOME TAX WITH RESPECT
TO ITS SHAREHOLDERS OR THE SHAREHOLDERS OF ANY OTHER CORPORATION, BY
PERMITTING EARNINGS AND PROFITS TO ACCUMULATE INSTEAD OF BEING DIVIDED
OR DISTRIBUTED." 

/3/ "533.  EVIDENCE OF PURPOSE TO AVOID INCOME TAX. 

"(A) UNREASONABLE ACCUMULATION DETERMINATIVE OF PURPOSE. 

"FOR PURPOSES OF SECTION 532, THE FACT THAT THE EARNINGS AND PROFITS
OF A CORPORATION ARE PERMITTED TO ACCUMULATE BEYOND THE REASONABLE
NEEDS OF THE BUSINESS SHALL BE DETERMINATIVE OF THE PURPOSE TO AVOID
THE INCOME TAX WITH RESPECT TO SHAREHOLDERS, UNLESS THE CORPORATION BY
THE PREPONDERANCE OF THE EVIDENCE SHALL PROVE TO THE CONTRARY." 

/4/ IN A PROCEEDING BEFORE THE UNITED STATES TAX COURT, 534 ALLOWS
THE TAXPAYER TO SHIFT THE BURDEN OF PROOF TO THE COMMISSIONER OF
INTERNAL REVENUE.  SECTION 535 DEFINES "ACCUMULATED TAXABLE INCOME" TO
MEAN THE CORPORATION'S TAXABLE INCOME ADJUSTED AS SPECIFIED; A CREDIT
IS GIVEN FOR "SUCH PART OF THE EARNINGS AND PROFITS FOR THE TAXABLE
YEAR AS ARE RETAINED FOR THE REASONABLE NEEDS OF THE BUSINESS," WITH A
MINIMUM "LIFETIME" CREDIT OF $100,000 ($150,000 FOR TAXABLE YEARS
BEGINNING AFTER DECEMBER 31, 1974, PUB. L. 94 - 12, 304, 89 STAT. 45,
26 U.S.C.A. 535 (C)(2) (JUNE 1975 SUPP.).  FINALLY, 537 PROVIDES THAT
THE TERM "REASONABLE NEEDS OF THE BUSINESS" INCLUDES "THE REASONABLY
ANTICIPATED NEEDS OF THE BUSINESS." 

/5/ IT IS STIPULATED THAT THE COST OF CONVERTING THE TAXPAYER'S
MARKETABLE SECURITIES INTO CASH WOULD HAVE BEEN THE SUM OF A MAXIMUM OF
6% OF THE FAIR MARKET VALUE OF THE SECURITIES (PAYABLE AS A BROKERAGE
COMMISSION) AND A MAXIMUM OF 25% OF SUCH AMOUNT OF THE FAIR MARKET
VALUE AS EXCEEDS THE SUM OF THE BROKERAGE COMMISSION AND THE COST OF
THE SECURITIES (PAYABLE AS CAPITAL GAINS TAXES).  APP. 55. 

/6/ AMERICAN TRADING AND PRODUCTION CORPORATION, PURSUANT TO OUR
RULE 42, WAS GRANTED PERMISSION TO FILE A BRIEF AMICUS CURIAE IN THE
PRESENT CASE.  IT ASSERTS THAT NO CONFLICT EXISTS BETWEEN THE DECISIONS
IN THIS CASE AND IN ITS OWN CASE. 

/7/ THE INCOME TAX RATES FOR A CORPORATION ARE 22% OF THE FIRST
$25,000 OF TAXABLE INCOME AND 48% OF THE EXCESS OVER $25,000.  11 OF
THE 1954 CODE, 26 U.S.C. 11.  THE GRADUATED RATES FOR AN INDIVIDUAL
TAXPAYER RANGE FROM 14% TO 70%.  1, 26 U.S.C. 1. 

/8/ THE ACCUMULATED EARNINGS TAX ORIGINATED IN II A, SUBDIVISION 2,
OF THE TARIFF ACT OF OCTOBER 3, 1913, 38 STAT. 166.  THIS IMPOSED A TAX
ON THE SHAREHOLDERS OF A CORPORATION "FORMED OR FRAUDULENTLY AVAILED OF
FOR THE PURPOSE OF PREVENTING THE IMPOSITION OF SUCH TAX THROUGH THE
MEDIUM OF PERMITTING SUCH GAINS AND PROFITS TO ACCUMULATE INSTEAD OF
BEING DIVIDED OR DISTRIBUTED."  ACCUMULATIONS "BEYOND THE REASONABLE
NEEDS OF THE BUSINESS SHALL BE PRIMA FACIE EVIDENCE OF A FRAUDULENT
PURPOSE TO ESCAPE SUCH TAX."  ID., AT 167.  THE SAME PROVISION APPEARED
AS 3 OF THE REVENUE ACT OF 1916, 39 STAT. 758, AND AGAIN AS 220 OF THE
REVENUE ACT OF 1918, 40 STAT. 1072 (1919), EXCEPT THAT IN THE 1918 ACT
THE WORD "FRAUDULENTLY" WAS DELETED.  THIS CHANGE WAS EFFECTED INASMUCH
AS THE SENATE FELT THAT THE FORMER PHRASEOLOGY "HAS PROVED TO BE OF
LITTLE VALUE, BECAUSE IT WAS NECESSARY TO ITS APPLICATION THAT INTENDED
FRAUD ON THE REVENUE BE ESTABLISHED IN EACH CASE."  S. REP. NO. 617,
65TH CONG., 3D SESS., 5 (1918). 

THIS PATTERN OF TAX ON THE SHAREHOLDERS WAS CHANGED WITH THE REVENUE
ACT OF 1921, 220, 42 STAT. 247.  THE INCIDENCE OF THE TAX WAS SHIFTED
FROM THE SHAREHOLDERS TO THE CORPORATION ITSELF.  JUDGE LEARNED HAND
OPINED THAT THE CHANGE WAS DUE TO DOUBTS "AS TO THE VALIDITY OF TAXING
INCOME WHICH THE TAXPAYERS HAD NEVER RECEIVED, AND IN 1921 IT WAS
THOUGHT SAFER TO TAX THE COMPANY ITSELF."  UNITED BUSINESS CORP. V.
COMMISSIONER, 62 F. 2D 754, 756 (CA2), CERT. DENIED, 290 U.S. 635
(1933). 

ALTHOUGH THE STATUTORY LANGUAGE HAS VARIED SOMEWHAT FROM TIME TO
TIME, THE INCOME TAX LAW, SINCE THE CHANGE EFFECTED BY THE REVENUE ACT
OF 1921, CONSISTENTLY HAS IMPOSED THE TAX ON THE CORPORATION, RATHER
THAN UPON THE SHAREHOLDERS.  REVENUE ACT OF 1924, 220, 43 STAT. 277;
REVENUE ACT OF 1926, 220, 44 STAT. 34; REVENUE ACT OF 1928, 104, 45
STAT. 814; REVENUE ACT OF 1932, 104, 47 STAT. 195; REVENUE ACT OF 1934,
102, 48 STAT. 472; REVENUE ACT OF 1936, 102, 49 STAT. 1676; REVENUE ACT
OF 1938, 102, 52 STAT. 483; INTERNAL REVENUE CODE OF 1939, 102. 

/9/ IN THIS CASE WE ARE CONCERNED ONLY WITH READILY MARKETABLE
SECURITIES.  WE EXPRESS NO VIEW WITH RESPECT TO ITEMS OF A DIFFERENT
KIND, SUCH AS INVENTORY OR ACCOUNTS RECEIVABLE. 

/10/ "THE TAX SHOULD BE ADMINISTERED WITH ITS PURPOSE IN MIND AT ALL
TIMES, I. E., TO PREVENT ACCUMULATIONS OF INCOME BY THE CORPORATION FOR
THE PURPOSE OF AVOIDING THE INCOME TAX ORDINARILY INCIDENT TO THE
SHAREHOLDERS.  IT IS NOT INTENDED TO SERVE AS AN OBSTACLE TO SOUND
PROFIT-ORIENTED CORPORATE MANAGEMENT.  THE ULTIMATE GOAL MUST BE TO
ADMINISTER THE TAX FAIRLY, IN LIGHT OF THE TOTAL ECONOMIC REALITY OF
THE CORPORATION.  VALUING LIQUID ASSETS AT COST INVARIABLY PRODUCES A
POOR AND INACCURATE PICTURE OF THE CORPORATE FINANCIAL POSITION. 
ADJUSTED FAIR MARKET VALUE MAY HAVE SHORTCOMINGS OF ITS OWN, BUT IT
DOES, UNDENIABLY, COME MUCH CLOSER TO FURTHERING THE INTENT OF THE
ACCUMULATED EARNINGS TAX."  NOTE, ACCUMULATED EARNINGS TAX:  SHOULD
MARKETABLE SECURITIES BE VALUED AT COST OR AT FAIR MARKET VALUE IN
DETERMINING THE REASONABLENESS OF FURTHER ACCUMULATIONS OF INCOME?, 40
BROOKLYN L. REV. 192, 209 - 210 (1973). 

/11/ WE SEE LITTLE FORCE IN ANY OBSERVATION THAT OUR EMPHASIS ON
LIQUID ASSETS MEANS THAT A CORPORATE TAXPAYER MAY AVOID THE ACCUMULATED
EARNINGS TAX BY MERELY INVESTING IN NONLIQUID ASSETS.  IF SUCH A STEP,
IN A GIVEN CASE, AMOUNTED TO WILLFUL EVASION OF THE ACCUMULATED
EARNINGS TAX, IT WOULD BE SUBJECT TO CRIMINAL PENALTIES.  SEE, E. G.,
7201 OF THE 1954 CODE, 26 U.S.C. 7201. 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

THE COURT'S DECISION DEPARTS SIGNIFICANTLY FROM THE RELEVANT
STATUTORY LANGUAGE, CREATES A RULE OF ADDITIONAL TAX LIABILITY THAT
PLACES BUSINESS MANAGEMENT IN A PERILOUS POSITION, AND VESTS IN THE
INTERNAL REVENUE SERVICE AN INAPPROPRIATE DEGREE OF DISCRETION IN
ADMINISTERING A PUNITIVE STATUTE.  I THEREFORE DISSENT. 

        I 

PETITIONER, A CORPORATION WITH 34 STOCKHOLDERS, IS ENGAGED IN
SELLING OFFICE SUPPLIES AND EQUIPMENT.  IN THE LATE 1950'S, BECAUSE
PETITIONER WAS A RETAIL OUTLET FOR EQUIPMENT OF THE XEROX CORP., IT
INVESTED $147,000 OF ITS EARNINGS AND PROFITS IN SECURITIES OF XEROX. 
THE MARKET VALUE OF THAT INVESTMENT INCREASED SUBSTANTIALLY OVER THE
YEARS, AND BY THE END OF PETITIONER'S 1965 AND 1966 TAX YEARS THE
UNREALIZED MARKET APPRECIATION /1/ OF THOSE SECURITIES APPROXIMATED
$1,475,000 AND $2,416,000 RESPECTIVELY.  /2/ FOR THE PURPOSE OF
DETERMINING THE APPLICABILITY OF THE ADDITIONAL PENALTY TAX LIABILITY
UNDER 26 U.S.C. 531, THE COMMISSIONER VALUED THESE SECURITIES AT THEIR
YEAR-END MARKET PRICE.  HE THEREUPON ASSESSED THE TAX HERE AT ISSUE. 

THE QUESTION IS ONE OF STATUTORY CONSTRUCTION:  IN DETERMINING
WHETHER A CORPORATION HAS ACCUMULATED EARNINGS AND PROFITS IN EXCESS OF
REASONABLE BUSINESS NEEDS WITHIN THE MEANING OF 26 U.S.C. 533 (A), ARE
ASSETS PURCHASED WITH EARNINGS AND PROFITS TO BE VALUED AT THE AMOUNT
INVESTED IN THEM--THEIR COST--OR AT THEIR MARKET PRICE, /3/  WHICH
REFLECTS BOTH COST AND UNREALIZED APPRECIATION?  THE QUESTION HAS NOT
HERETOFORE BEEN DECIDED BY THIS COURT AND HAS BEEN CONSIDERED
INFREQUENTLY BY OTHER FEDERAL COURTS. 

        II 

I ADDRESS FIRST THE STATUTORY LANGUAGE, WHICH IN MY VIEW IS
CONTROLLING.  SECTION 531 IMPOSES A TAX "(IN ADDITION TO OTHER TAXES
IMPOSED BY THIS CHAPTER ... ON THE ACCUMULATED TAXABLE INCOME ... OF
EVERY CORPORATION" IDENTIFIED BY 532.  SECTION 532 MAKES THE 531 TAX
APPLICABLE TO EVERY CORPORATION "FORMED OR AVAILED OF FOR THE PURPOSE
OF AVOIDING THE INCOME TAX WITH RESPECT TO ITS SHAREHOLDERS ... BY
PERMITTING EARNINGS AND PROFITS TO ACCUMULATE INSTEAD OF BEING DIVIDED
OR DISTRIBUTED."  IF "THE EARNINGS AND PROFITS OF A CORPORATION ARE
PERMITTED TO ACCUMULATE" BEYOND ITS REASONABLE NEEDS, 533 ESTABLISHES A
REBUTTABLE PRESUMPTION THAT THE CORPORATION IS ONE "FORMED OR AVAILED
OF FOR THE PURPOSE OF AVOIDING THE INCOME TAX" AND THAT IT IS THEREFORE
LIABLE FOR THE 531 TAX. 

THE CENTRAL ELEMENT OF THIS STATUTORY SCHEME IS THE UNREASONABLE
ACCUMULATION OF EARNINGS AND PROFITS BEYOND THE CORPORATION'S
REASONABLE NEEDS.  IT IS STIPULATED IN THIS CASE THAT THERE IS NO
UNREASONABLE ACCUMULATION AND NO ADDITIONAL TAX UNLESS THE UNREALIZED
APPRECIATION OF THE XEROX SECURITIES IS ADDED TO PETITIONER'S ACTUAL
ACCUMULATED EARNINGS AND PROFITS (I. E., TO ITS EARNED SURPLUS
ACCOUNT).  /4/  UNDER NORMAL CONCEPTS OF TAX LAW AND ACCOUNTING THE
GOVERNMENT'S POSITION IS THEREFORE UNTENABLE ON ITS FACE.  UNREALIZED
APPRECIATION OF ASSETS IS NOT CONSIDERED IN COMPUTING ORDINARY
CORPORATE OR INDIVIDUAL TAXABLE INCOME.  INDEED, SOUND ACCOUNTING
PRACTICE REQUIRES THAT ASSETS BE RECORDED AND CARRIED AT COST, /5/ AND
THIS REQUIREMENT IS ENFORCED WITH RESPECT TO FILINGS WITH THE
SECURITIES AND EXCHANGE COMMISSION (SEC).  SIMILARLY, IF ASSETS OF A
CORPORATION ARE DISTRIBUTED TO SHAREHOLDERS "IN KIND," THE COMPANY IS
CREDITED FOR A DIVIDEND PAYMENT ONLY ON THE BASIS OF THE COST OF THOSE
ASSETS, NOT THEIR APPRECIATED VALUE. 

IN VIEW OF THIS UNANIMITY OF LAW AND PRACTICE, WHAT THEORY IS
DEVISED BY THE GOVERNMENT AND THE COURT TODAY AS JUSTIFICATION FOR A
DIFFERENT RULE FOR THIS PENALTY TAX?  I LOOK TO THE COURT'S OPINION FOR
THE ANSWER.  IT IS CONCEDED THAT "UNREALIZED APPRECIATION DOES NOT
ENTER INTO THE COMPUTATION OF THE CORPORATION'S ... (ACCUMULATED)
'EARNINGS AND PROFITS.'"  ANTE, AT 627.  NEVERTHELESS, THE COURT HOLDS
THAT SUCH APPRECIATION "BECOMES IMPORTANT" AND MUST BE TAKEN INTO
ACCOUNT "IN MEASURING (THE) REASONABLENESS" OF SUCH ACCUMULATION. 
ANTE, AT 628.  IN SHORT, THE COURT CONSTRUES THE STATUTE TO MEAN THAT
ALTHOUGH UNREALIZED APPRECIATION IS NOT INCLUDABLE IN COMPUTING
EARNINGS AND PROFITS, IT IS INCLUDABLE IN DETERMINING WHETHER EARNINGS
AND PROFITS HAVE BEEN ACCUMULATED UNREASONABLY. 

THE STATUTE PROVIDES NO BASIS WHATEVER FOR THIS DISTINCTION. 
ACCORDING TO ITS OWN TERMS, SELECTED WITH FULL KNOWLEDGE OF ACCEPTED
TAX AND ACCOUNTING PRINCIPLES, THE PENALTY TAX APPLIES ONLY IF THERE IS
AN UNREASONABLE ACCUMULATION OF EARNINGS AND PROFITS; THE STATUTE
CONTAINS NO REFERENCE TO THE ADDITION OF UNREALIZED APPRECIATION TO THE
ACCUMULATED EARNINGS AND PROFITS WHICH CONSTITUTE THE ONLY BASIS FOR
IMPOSING THE TAX.  NOR DOES THE HISTORY OR PURPOSE OF THE STATUTE
SUPPORT THE "ADD ON" OF AN UNREALIZED INCREMENT OF VALUE CONCEDED BY
THE COURT TO BE NEITHER EARNINGS NOR PROFITS.  BY AUTHORIZING THIS "ADD
ON," THE COURT'S DECISION EFFECTIVELY CONVERTS THE TAX ON EXCESSIVE
ACCUMULATION OF EARNINGS AND PROFITS TO A TAX ON THE RETENTION OF
CERTAIN ASSETS THAT APPRECIATE IN VALUE.  ALTHOUGH CURRENT ACCUMULATED
TAXABLE INCOME REMAINS THE MEASURE OF THE TAX, ITS APPLICATION IN MANY
CASES WILL BE CONTROLLED SIMPLY BY THE EXISTENCE OF UNREALIZED
APPRECIATION IN THE VALUE OF THESE ASSETS. 

THE PURPOSE OF THE STATUTE, AS THE COURT STATES, IS "TO FORCE THE
DISTRIBUTION OF UNNEEDED CORPORATE EARNINGS."  ANTE, AT 624.  SUCH A
DISTRIBUTION IS ACCOMPLISHED BY THE PAYMENT OF DIVIDENDS, WHICH
NORMALLY ARE DECLARED AND PAID ONLY OUT OF CURRENT EARNINGS OR EARNED
SURPLUS, DETERMINED IN ACCORDANCE WITH SOUND ACCOUNTING PRACTICE. 
ABSENT AUTHORIZATION IN A STATUTE OR CORPORATE CHARTER, CORPORATE
DIRECTORS WHO PAY DIVIDENDS FROM UNREALIZED APPRECIATION RISK PERSONAL
LIABILITY AT THE SUIT OF STOCKHOLDERS OR INJURED CREDITORS.  /6/

        III 

THE PLAIN LANGUAGE OF THE CODE RESOLVES THIS CASE FOR ME.  BUT EVEN
IF THE STATUTE COULD BE THOUGHT AMBIGUOUS ON THE POINT, THE TAX IS, AS
THE COURT CONCEDES, A "PENALTY AND THEREFORE (MUST) BE STRICTLY
CONSTRUED...."  ANTE, AT 627.  SEE COMMISSIONER V. ACKER, 361 U. S. 87,
91 (1959).  THIS MEANS, AT A MINIMUM, THAT DOUBTS AND AMBIGUITIES MUST
BE RESOLVED IN FAVOR OF A FAIR AND EQUITABLE CONSTRUCTION THAT IS AS
FREE FROM THE HAZARDS OF UNCERTAINTY AS THE STATUTORY LANGUAGE AND
PURPOSE WILL ALLOW.  IT SEEMS TO ME THAT THE COURT'S OPINION IGNORES
THE MEANING OF THIS CANON OF CONSTRUCTION.  RATHER THAN CONSTRUE THE
STATUTE NARROWLY, TODAY'S DECISION EXTENDS THE PRESUMPTIVE REACH OF
THIS TAX BEYOND THE LANGUAGE OF THE CODE AND CREATES A NUMBER OF
PERPLEXING UNCERTAINTIES.     BUSINESSES NORMALLY ARE CONDUCTED, AND
MANAGEMENT DECISIONS MADE, ON THE BASIS OF FINANCIAL INFORMATION THAT
IS MAINTAINED IN ACCORDANCE WITH SOUND ACCOUNTING PRACTICE.  THE MOST
ELEMENTARY PRINCIPLE OF ACCOUNTING PRACTICE IS THAT ASSETS ARE RECORDED
AT COST.  THIS IS TRUE WITH RESPECT TO THE COMPUTATION OF EARNINGS AND
PROFITS, PAYMENT OF ORDINARY CORPORATE TAXES, DETERMINATION OF DIVIDEND
POLICY, AND REPORTING TO STOCKHOLDERS, THE SEC, AND OTHER REGULATORY
AGENCIES.  CORPORATE BOOKS AND RECORDS ARE AUDITED ONLY ON THAT BASIS. 
WHATEVER MAY BE SAID FOR THE COURT'S VIEW OF THE "UNREALITY" OF
ADHERING TO THE PRINCIPLES OF SOUND ACCOUNTING PRACTICE, ANTE, AT 629 -
630, THOSE PRINCIPLES ARE THE BEST SYSTEM YET DEVISED FOR GUIDING
MANAGEMENT, INFORMING SHAREHOLDERS, AND DETERMINING TAX LIABILITY. 
THEY HAVE THE NOT INCONSIDERABLE VIRTUES OF CONSISTENCY, REGULARITY,
AND CERTAINTY --VIRTUES THAT ALSO ASSURE FAIRNESS AND REASONABLE
PREDICTABILITY IN THE COMMISSIONER'S ADMINISTRATION OF THIS PENALTY
TAX. 

THE COURT TODAY ABANDONS ACCOUNTING PRINCIPLES CONFIRMED BY THE
WISDOM OF BUSINESS EXPERIENCE AND ANNOUNCES A NEW RULE WITH FAR
REACHING CONSEQUENCES.  IN MY VIEW, THIS RULE WILL CREATE UNCERTAINTY
AND OPEN WIDE POSSIBILITIES FOR UNFAIRNESS. 

        A 

BOTH TAXPAYERS AND THE GOVERNMENT KNOW WHAT IS MEANT BY "COST
BASIS," AND A CORPORATION'S EARNED SURPLUS ACCOUNT, WHICH REFLECTS
ACCUMULATED EARNINGS AND PROFITS FROM WHICH DIVIDENDS NORMALLY ARE
PAID, IS AN ESTABLISHED ACCOUNTING FACT.  THERE IS NO COMPARABLE
CERTAINTY OR DEPENDABILITY IN THE RULE DEVISED BY THE COURT: 

"COST OF THE MARKETABLE SECURITIES ON THE ASSETS SIDE OF THE
CORPORATION'S BALANCE SHEET WOULD APPEAR TO BE LARGELY AN IRRELEVANT
GAUGE OF THE TAXPAYER'S TRUE FINANCIAL CONDITION.  ... REALISTIC
FINANCIAL CONDITION IS THE FOCUS ... OF THE COMMISSIONER'S INQUIRY IN
DETERMINING THE APPLICABILITY OF THE ACCUMULATED EARNINGS TAX."  ANTE,
AT 629 - 630 (EMPHASIS ADDED). 

IN THIS CASE, INVOLVING MARKETABLE SECURITIES, THE COMPUTATION OF
THE TRUE VALUE FOR PURPOSES OF THE TAX APPEARS AT FIRST BLUSH TO
PRESENT NO SERIOUS PROBLEM OF UNCERTAINTY.  THE COURT SIMPLY EQUATES
MARKET PRICE AT THE END OF THE TAX YEAR WITH TRUE VALUE, AND ADDS THE
RESULTING EXCESS OVER COST TO THE BOOK VALUE OF THE SECURITIES.  APART
FROM THE QUESTIONABLE ASSUMPTION THAT MARKET QUOTATIONS REPRESENT THE
TRUE VALUE OF A RETAINED COMMON STOCK, THE COURT'S NEW FORMULATION
POSES PERPLEXING DEFINITIONAL QUESTIONS FOR MANAGEMENT. 

AN INITIAL UNCERTAINTY RESULTS FROM THE COURT'S AMBIGUOUS USE OF THE
TERM "SECURITIES."  AS DEFINED IN THE SECURITIES ACT OF 1933 AND THE
SECURITIES EXCHANGE ACT OF 1934, THE TERM IS QUIET COMPREHENSIVE.  /7/
EVEN SO, ITS MEANING IS NOT ALWAYS SELF-EVIDENT, AS CAN BE SEEN BY
EXAMINING SOME OF THE EXTENSIVE LITIGATION ON THIS QUESTION.  ON A
STOCK EXCHANGE.  IT IS INDEED TRUE THAT THE GREAT MAJORITY OF COMMON
STOCKS LISTED ON THE NEW YORK STOCK EXCHANGE ARE READILY MARKETABLE,
UNLESS THE NUMBER OF SHARES TO BE SOLD IS TOO LARGE FOR THE MARKET TO
ABSORB.  THE SAME CANNOT BE SAID, HOWEVER, OF ALL BONDS SEE, E. G.,
1050 TENANTS CORP. V. JAKOBSON, 503 F. 2D 1375 (CA2 1974); SEC V. GLENN
W. TURNER ENTERPRISES, INC., 474 F. 2D 476 (CA9), CERT. DENIED, 414 U.
S. 821 (1973); LEHIGH VALLEY TRUST CO. V. CENTRAL NATIONAL BANK OF
JACKSONVILLE, 409 F. 2D 989 (CA5 1969). 

IN ADDITION, UNCERTAINTIES WILL ARISE IN ASCERTAINING WHETHER THE
ASSET IS SUFFICIENTLY "READILY MARKETABLE" TO SATISFY THE COURT'S
TEST.  THE COURT ATTACHES SIGNIFICANCE TO WHETHER THE SECURITY IS
"LISTED" LISTED ON THAT EXCHANGE.  MOREOVER, THERE ARE OTHER EXCHANGES
ON WHICH SECURITIES ARE LISTED AND TRADED:  THE AMERICAN STOCK
EXCHANGE, OVER THE COUNTER, AND SCORES OF LOCAL EXCHANGES.  WHILE MANY
SECURITIES TRADED ON THESE EXCHANGES MAY BE "READILY MARKETABLE,"
PERHAPS THE MAJORITY COULD NOT FAIRLY BE SO CHARACTERIZED.  IN
COUNTLESS SITUATIONS CORPORATE MANAGEMENT WILL BE UNABLE TO DETERMINE,
SHORT OF ATTEMPTING TO SELL THE SECURITY, WHETHER IT IS "READILY
MARKETABLE" OR NOT. 

 B 

THE UNCERTAINTY ENGENDERED BY TODAY'S OPINION WILL NOT BE LIMITED TO
ITS UNDIFFERENTIATED TREATMENT OF MARKETABLE SECURITIES.  A MORE
FUNDAMENTAL QUESTION ARISING FROM THE RATIONALE OF THE COURT'S DECISION
IS WHETHER THE TEST OF "TRUE" OR "REALISTIC" FINANCIAL CONDITION WILL
BE APPLIED TO OTHER ASSETS.  NOTHING IN THE RELEVANT STATUTORY
PROVISIONS SUGGESTS A DISTINCTION BETWEEN SECURITIES AND OTHER ASSETS,
OR EVEN BETWEEN ASSETS WITH VARYING DEGREES OF MARKETABILITY.  THE
COURT NEVERTHELESS APPEARS TO READ INTO THE STATUTES A DISTINCTION
BASED ON "LIQUIDITY," AT VARIOUS POINTS REFERRING INTERCHANGEABLY TO
"READILY MARKETABLE SECURITIES," "CURRENT ASSETS," AND "QUICK OR LIQUID
ASSETS."  ANTE, AT 622, 628.  ALTHOUGH THE COURT'S HOLDING IS LIMITED
IN THIS CASE TO READILY MARKETABLE SECURITIES, SEE ANTE, AT 629 N. 9,
ITS RATIONALE IS NOT SO EASILY CONTAINED. 

THE COURT STATES CATEGORICALLY THAT THE "FOCUS" OF THE COMMISSIONER'S
INQUIRY, IN DETERMINING THE APPLICATION OF THIS TAX, MUST BE ON WHAT IT
CALLS TRUE OR REALISTIC FINANCIAL CONDITION.  ANTE, AT 629 - 630.  IN
VIEW OF THIS POSTULATION, AND THE ABSENCE OF ANY DISTINCTION IN THE
STATUTE AMONG TYPES OF ASSETS, IS THE COMMISSIONER NOW FREE TO INCLUDE
IN HIS COMPUTATION THE UNREALIZED APPRECIATION OF ALL CORPORATE
ASSETS?  ONCE COST BASIS IS ABANDONED, AND "REALISTIC"  VALUE BECOMES
THE STANDARD, THE UNCERTAINTIES CONFRONTING PRUDENT MANAGEMENT IN MANY
CASES WILL BE PROFOUNDLY DISQUIETING.  TO BE SURE, READ NARROWLY, THE
COURT'S DECISION APPLIES ONLY TO READILY MARKETABLE SECURITIES, WITH
EMPHASIS ON "LIQUIDITY."  BUT THIS IS ANOTHER RELATIVE TERM, DEPENDING
ON THE NATURE OF THE ASSET AND THE UNCERTAINTIES OF MARKET CONDITIONS
AT THE TIME. 

THE POTENTIAL SWEEP OF THE COURT'S DECISION IS FORECAST BY THE
RESPONSE OF GOVERNMENT COUNSEL TO QUESTIONS ABOUT UNREALIZED
APPRECIATION ON REAL ESTATE.  AT ONE POINT COUNSEL STATED THAT REAL
ESTATE WOULD NOT BE SUFFICIENTLY LIQUID TO BE INCLUDABLE AT MARKET
VALUE IN THE TAX CALCULATION.  TR. OF ORAL ARG. 36, BUT HE LATER
QUALIFIED THIS STATEMENT BY SUGGESTING THAT LAND MIGHT BE INCLUDABLE IF
IT COULD BE ESTABLISHED THAT IT WAS READILY MARKETABLE, ID., AT 42. 
/8/ 

THE TYPES OF ASSETS IN WHICH CORPORATIONS LAWFULLY MAY INVEST
EARNINGS AND PROFITS EMBRACE THE TOTAL RANGE OF PROPERTY INTERESTS. 
THEY INCLUDE, TO NAME ONLY A FEW EXAMPLES, UNIMPROVED REAL ESTATE
WITHIN THE ANTICIPATED GROWTH PATTERN OF A MAJOR URBAN AREA, IMPROVED
REAL ESTATE, UNLISTED SECURITIES OF GROWTH CORPORATIONS THAT HAVE NOT
"GONE PUBLIC," UNDIVIDED INTERESTS IN OIL OR MINING VENTURES, AND EVEN
OBJECTS OF ART. AT VARIOUS TIMES AND DEPENDING UPON CONDITIONS, ANY OF
THESE ASSETS MAY BE VIEWED AS--AND IN FACT MAY BE--READILY MARKETABLE
AND THEREFORE "LIQUID."  THE UNREALIZED APPRECIATION OF SUCH ASSETS MAY
WELL BEAR UPON THE REALISTIC FINANCIAL CONDITION OF A CORPORATION,
HOWEVER IT IS DEFINED.  IN LIGHT OF THESE ECONOMIC FACTS, THE SWEEP OF
TODAY'S DECISION PRESENTS PROBLEMS BOTH FOR CORPORATE TAXPAYERS AND THE
GOVERNMENT.  /9/

        C 

I FURTHER THINK THAT THE COURT'S DECISION TO ATTACH SIGNIFICANT TAX
CONSEQUENCES TO THE MARKET PRICE OF A VOLATILE STOCK AT A PARTICULAR
POINT IN TIME WILL LEAD TO UNFAIRNESS IN THE APPLICATION OF THE
ACCUMULATED EARNINGS TAX.  THE COURT'S NET LIQUIDATION FORMULATION
SEEMS TO ASSUME, AND NOTHING IN THE OPINION DISPELS THIS ASSUMPTION,
THAT READILY MARKETABLE ASSETS ARE TO BE VALUED AS OF THE END OF THE
TAX YEAR IN QUESTION.  MOREOVER, THE COURT APPARENTLY WOULD TREAT ALL
MARKETABLE SECURITIES THE SAME FOR THE PURPOSE OF THIS VALUATION.  NO
DISTINCTION IS DRAWN OR EVEN SUGGESTED AMONG THE WIDE VARIETY OF
SECURITIES THAT ARE HELD AS CORPORATE ASSETS. 

THE MARKET PRICE OF A SHORT-TERM TREASURY NOTE, AT MOST ONLY
FRACTIONALLY DIFFERENT FROM ITS COST BASIS, WOULD REPRESENT ITS VALUE
UNDER ANY TEST.  BUT FEW FINANCIAL ANALYSTS OR ECONOMISTS WOULD SAY
THAT THE MARKET QUOTATION OF A COMMON STOCK AT ANY PARTICULAR TIME
NECESSARILY REFLECTS ITS "TRUE" OR "REALISTIC" VALUE UNLESS THE STOCK
IS SOLD AT THAT PRICE.  /10/  OVER A SUFFICIENTLY LONG TERM, THE MARKET
PRICE OF A COMMON STOCK WILL REFLECT, AND VARY WITH, THE FUNDAMENTAL
STRENGTH OF THE ISSUING CORPORATION'S BALANCE SHEET, ITS EARNINGS
RECORD, AND ITS FUTURE EARNINGS PROSPECTS.  BUT A VARIETY OF OTHER
FACTORS ALSO AFFECT MARKET PRICE, PRODUCING WIDE SWINGS THAT DO NOT
NECESSARILY CORRESPOND TO THOSE ECONOMIC FACTS.  THESE FACTORS INCLUDE
CURRENT CONDITIONS OF SUPPLY AND DEMAND IN THE STOCK MARKET, IMMEDIATE
CONFIDENCE IN THE MARKET IN GENERAL AND IN THE OVERALL STATE OF THE
ECONOMY, INTERNATIONAL STABILITY OR INSTABILITY, NOTIONS OF WHAT IS
FASHIONABLE TO BUY AT A PARTICULAR TIME, AND A VARIETY OF OTHER
INTANGIBLES.  THE EXTENT TO WHICH THE MARKET PRICES OF COMMON STOCKS
FLUCTUATE, OFTEN WITHOUT REGARD TO ANY CONCEPT OF "REAL" VALUE, IS
ILLUSTRATED BY THE TABLES IN THE APPENDIX TO THIS OPINION. 

BEARING IN MIND THE ACTUAL VARIATIONS IN THE PRICE OF XEROX STOCK,
CAN IT BE SAID THAT ITS MARKET PRICE AT ANY GIVEN TIME FAIRLY
REPRESENTS ITS TRUE OR REALISTIC VALUE FOR THE PURPOSE OF DETERMINING
WHETHER EARINGS AND PROFITS HAVE BEEN ACCUMULATED UNREASONABLY?  THE
NEGATIVE ANSWER TO THIS QUESTION IS INDICATED, AT LEAST FOR ME, BY THE
FOLLOWING HYPOTHETICAL EXAMPLE.  IN 1965, ONE OF THE TAX YEARS AT ISSUE
IN THIS CASE, THE HIGHEST PRICE AT WHICH XEROX SOLD WAS $71 AND THE
LOWEST WAS $31.  IF TWO COMPETING CORPORATIONS EACH OWNED 10,000 SHARES
OF XEROX STOCK PURCHASED PRIOR TO 1965 AT THE IDENTICAL PRICE OF $31
PER SHARE, AND CORPORATION A'S TAX YEAR ENDED ON THE DAY THAT XEROX HIT
$71, WHILE CORPORATION B'S TAX YEAR ENDED ON THE DAY IT HIT $31,
CORPORATION A WOULD HAVE HAD AN UNREALIZED APPRECIATION OF $400,000,
WHEREAS CORPORATION B WOULD HAVE HAD NONE. 

BY DEPARTING FROM THE COST-BASIS STANDARD OF SOUND ACCOUNTING
PRACTICE, AND COMPELLING RELIANCE ON AN ISOLATED MARKET PRICE OF A
RETAINED COMMON STOCK, THE COURT ITSELF DEPARTS FROM ITS AVOWED GOAL OF
"ECONOMIC REALITY."  ANTE, AT 627.  AN AVERAGE PRICE RANGE AT WHICH THE
STOCK MIGHT HAVE BEEN SOLD OVER A RELATIVELY LONG PERIOD MIGHT PRODUCE
A MORE EQUITABLE RESULT IN SOME CASES.  IT WOULD NOT, HOWEVER,
ALLEVIATE THE BASIC PROBLEM INHERENT IN THE COURT'S FORMULATION.  THE
TAXPAYER STILL COULD BE PENALIZED FOR HAVING FAILED TO CONSIDER, IN
PLANNING FUTURE BUSINESS NEEDS, THE HIGHLY EPHEMERAL "VALUE" OF
UNREALIZED APPRECIATION ON COMMON STOCK.  THE EFFECT OF TODAY'S
DECISION IS TO HOLD BUSINESS MANAGEMENT ACCOUNTABLE FOR UNREALIZED
APPRECIATION AS IF IT WERE CASH IN HAND, PROBABLY FORCING CORPORATE
MANAGEMENT IN MANY CASES TO LIQUIDATE SECURITIES THAT OTHERWISE IT
WOULD HAVE ELECTED TO RETAIN.  /11/ MANAGEMENT DECISIONS DURING THE
COURSE OF A YEAR, INCLUDING DECISIONS WHETHER AND WHEN TO PAY DIVIDENDS
AND IN WHAT AMOUNTS, CANNOT BE MADE INTELLIGENTLY ON THE BASIS OF AN
ASSET SO VOLATILE THAT IT MAY DEPRECIATE IN MARKET VALUE AS MUCH AS 8%
IN A SINGLE DAY AND 61% IN A YEAR.  649 UNCERTAINTY OF THIS MAGNITUDE
UNCERTAINTY OF THIS MAGNITUDE COULD ONLY BE AVOIDED BY LIQUIDATION OF
ASSETS THAT HAVE APPRECIATED IN VALUE.  I FIND NOTHING IN THE LANGUAGE
OR PURPOSE OF THIS TAX THAT JUSTIFIES SUCH DETRIMENTAL INTERFERENCE
WITH SOUND CORPORATE MANAGEMENT. 

     IV 

THE COURT PLACES MAJOR RELIANCE ON HELVERING V. NATIONAL GROCERY
CO., 304 U. S. 282 (1938), FINDING THAT THAT OPINION "FORECLOSES THE
PRESENT TAXPAYER'S CASE."  ANTE, AT 631.  I RESPECTFULLY SUGGEST THAT
THE COURT'S INTERPRETATION OF NATIONAL GROCERY WILL NOT WITHSTAND CLOSE
SCRUTINY OF THE FACTS OR ITS ACTUAL HOLDING.  /12/ 

NATIONAL GROCERY, ITS STOCK OWNED BY A SOLE SHAREHOLDER, WAS
ORGANIZED IN 1908 WITH AN AUTHORIZED CAPITAL OF $5,000; ITS BUSINESS
PROSPERED OVER THE YEARS, SO THAT BY JANUARY 31, 1931 (THE TAXABLE YEAR
THERE AT ISSUE), ITS EARNED SURPLUS WAS $7,939,000.  THESE EARNINGS
NOTWITHSTANDING, NATIONAL GROCERY'S "ONLY DIVIDENDS ... EVER PAID ...
UP TO JANUARY 31, 1931, WERE A DIVIDEND OF $25,000 IN 1917, AND A
DIVIDEND OF A LIKE AMOUNT IN 1918."  NATIONAL GROCERY CO. V.
COMMISSIONER, 35 B. T. A. 163, 164 (1936).  THE CORPORATION'S NET
PROFITS FOR THE FOUR FISCAL YEARS PRECEDING FISCAL YEAR 1931, ALL OF
WHICH WERE RETAINED RATHER THAN DISTRIBUTED, AVERAGED IN EXCESS OF
$800,000 ANNUALLY.  NATIONAL GROCERY EARNED SOME $864,000 DURING THE
TAX YEAR IN QUESTION, NONE OF WHICH WAS DISTRIBUTED AS A DIVIDEND. 
ADDRESSING THE TAXPAYER'S ATTEMPT TO OFFSET THE DEPRECIATION OF SOME OF
ITS ASSETS, THE COURT NOTED: 

"DEPRECIATION IN ANY OF THE ASSETS IS EVIDENCE TO BE CONSIDERED BY THE
COMMISSIONER AND THE BOARD IN DETERMINING THE ISSUE OF FACT WHETHER THE
ACCUMULATION OF PROFITS WAS IN EXCESS OF THE REASONABLE NEEDS OF THE
BUSINESS.  BUT OBVIOUSLY DEPRECIATION IN THE MARKET VALUE OF SECURITIES
WHICH THE CORPORATION CONTINUES TO HOLD DOES NOT, AS MATTER OF LAW,
PRECLUDE A FINDING THAT THE ACCUMULATION OF THE YEAR'S PROFITS WAS IN
EXCESS OF THE REASONABLE NEEDS OF THE BUSINESS."  304 U. S., AT 291. 

WHEN NATIONAL GROCERY IS READ IN LIGHT OF THE FACTS AND ISSUES THERE
PRESENTED--AS IT MUST BE IN ORDER TO UNDERSTAND THE COURT'S PASSING
STATEMENT--IT IS READILY APPARENT THAT THE HOLDING IN THAT CASE DOES
NOT GOVERN THE ISSUE HERE.  THE CENTRAL ISSUE THERE WAS THE DEFINITION
OF "GAINS AND PROFITS":  SPECIFICALLY, WHETHER "GAINS," A TERM REPLACED
IN THE PRESENT STATUTE BY "EARNINGS," QUALIFIED THE MEANING OF
"PROFITS."  THE COURT APPARENTLY FELT JUSTIFIED IN DEVOTING LITTLE EVEN
IF IT WERE ALLOWED TO OFFSET THE ASSERTED DEPRECIATION.  FINALLY, IT IS
SIGNIFICANT THAT NATIONAL GROCERY'S "ACCUMULATION OF EARNINGS" WAS
COMPUTED ON THE BASIS OF BOOK VALUE OR COST.  INDEED, ALL OF THE
RELEVANT FIGURES WERE SO COMPUTED, INCLUDING THE $7,393,000 SURPLUS
ATTENTION TO THE ISSUE, FOR IT WAS PLAIN IN LIGHT OF THE HUGE
ACCUMULATION OF EARNINGS OVER TIME THAT THE TAXPAYER WOULD BE LIABLE
THAT HAD BEEN ACCUMULATED OVER TIME.     I THEREFORE FIND NO
JUSTIFICATION FOR THE VIEW THAT NATIONAL GROCERY FORECLOSES
CONSIDERATION OF THE QUESTION HERE PRESENTED.  MOREOVER, EVEN IF I
COULD AGREE WITH THE COURT'S INTERPRETATION OF THAT CASE, I WOULD
REFUSE TO FOLLOW A RATIONALE SO PLAINLY AT ODDS WITH THE STATUTORY
LANGUAGE AND SO CONDUCIVE TO UNCERTAINTY AND UNFAIRNESS. 

        V 

THE UNCERTAINTIES THE COURT HAS NOW READ INTO THIS PENAL STATUTE
CORRESPONDINGLY VEST IN THE INTERNAL REVENUE SERVICE AN INAPPROPRIATE
LATITUDE IN ITS ADMINISTRATION.  IN LIGHT OF TODAY'S DECISION, THE
COMMISSIONER WILL HAVE WIDE AND VIRTUALLY UNCONTROLLED DISCRETION IN
DECIDING WHICH CORPORATIONS WILL BE SUBJECT TO ADDITIONAL TAXATION, OR
AT LEAST IN DECIDING WHICH WILL BE REQUIRED TO REBUT THE PRESUMPTION
THAT EARNINGS WERE ACCUMULATED TO EVADE SHAREHOLDER TAX LIABILITY. 
UNTIL TODAY'S DECISION, MANAGEMENT, IN TRYING TO ANTICIPATE WHAT A
COMMISSIONER WOULD DEEM AN UNREASONABLE ACCUMULATION, AT LEAST COULD
RELY ON THE CORPORATION'S EARNED SURPLUS ACCOUNT AS ESTABLISHING ITS
ACCUMULATED EARNINGS AND PROFITS.  NOW THIS DEPENDABLE BENCHMARK HAS
BECOME AN "IRRELEVANT GAUGE" OF A CORPORATION'S "TRUE FINANCIAL
CONDITION," AND IN MANY CASES MANAGEMENT CAN ONLY SPECULATE ABOUT THE
COMMISSIONER'S FUTURE DETERMINATION OF VALUES NOWHERE REFLECTED IN THE
CORPORATION'S BOOKS.  AS COMMENTATORS HAVE NOTED, SEE B. BITTKER & J.
EUSTICE, FEDERAL INCOME TAXATION OF CORPORATIONS AND SHAREHOLDERS 8.01,
P. 8 - 4 (3D ED. 1971), THE DECISION TO IMPOSE THE ACCUMULATED EARNINGS
TAX INEVITABLY INVOLVES "A HINDSIGHT VERDICT ON MANAGEMENT'S BUSINESS
JUDGMENT."  THE COURT'S DECISION DOES NOT IMPOSE IDENTIFIABLE STANDARDS
ON THE COMMISSIONER'S EXERCISE OF THIS EXTRAORDINARY "HINDSIGHT"
AUTHORITY, BUT LEAVES IT OPENENDED.  IT IS UNLIKELY, TO SAY THE LEAST,
THAT CONGRESS INTENDED TO LEAVE SMALL AND MEDIUM-SIZED BUSINESSES-
THOSE MOST OFTEN THE TARGET OF THIS TAS--EXPOSED TO THIS DEGREE OF
ADMINISTRATIVE DISCRETION IN THE IMPOSITION OF A POTENTIALLY HEAVY
PENALTY TAX. 

(APPENDIX STARTS ON PAGE 653.) 

        APPENDIX A-1 TO OPINION OF POWELL, J., DISSENTING 

THE VOLATILITY AND TRANSIENT CHARACTER OF MARKET PRICES OF A COMMON
STOCK ARE ILLUSTRATED BY THE FOLLOWING TABLES: 

     TABLE I:  XEROX CORP. COMMON STOCK. 

     TABLE II:  SELECTED STOCK RANGES DURING 1965. 

     TABLE III:  SELECTED STOCK RANGES DURING 1974.  A-1 - A-4. 

     TABLE IV:  WALL STREET JOURNAL OMITTED FROM APPENDICES 

/1/ UNREALIZED APPRECIATION IS THE DIFFERENCE BETWEEN THE COST BASIS
OF A RETAINED ASSET AND ITS MARKET OR APPRAISED VALUE, WHERE THE LATTER
EXCEEDS COST. 

/2/ THE COST BASIS FOR PETITIONER'S XEROX SECURITIES FOR THE 1966
TAX YEAR WAS SOME $14,000 LESS THAN FOR 1965, APPARENTLY REFLECTING THE
PAYMENT AS A DIVIDEND OF 870 SHARES OF XEROX STOCK IN 1965.  THE
"APPRECIATION" FIGURES USED HEREIN COME FROM PETITIONER'S BRIEF AND
VARY SOMEWHAT FROM THE FIGURES USED BY THE GOVERNMENT, BUT THE
DIFFERENCES ARE INSIGNIFICANT IN THE CONTEXT OF THIS CASE.  ROUNDED
FIGURES ARE USED THROUGHOUT THIS OPINION. 

/3/ THE COURT REFERS TO NET LIQUIDATION VALUE, WHICH REFLECTS THE
ASSET'S CURRENT MARKET PRICE LESS THE COSTS AND EXPENSES ATTENDANT TO
ITS LIQUIDATION.  THE COURT THUS SEEKS TO IDENTIFY THE SUM THAT WOULD
BE MADE AVAILABLE BY A HYPOTHETICAL SALE OF THE ASSET IN QUESTION,
ALTHOUGH NOTHING IN THE STATUTE REQUIRES SUCH A LIQUIDATION.  FOR THE
PURPOSE OF DISCUSSION, I WILL REFER SIMPLY TO MARKET VALUE OR MARKET
PRICE. 

/4/ THERE MAY BE SOME AMBIGUITY IN THE CRITICAL LANGUAGE STATING THE
COURT'S THEORY OF THE CASE, ANTE, AT 626, AS TO WHETHER IT INTENDS THE
TERM "ACCUMULATED" TO REFER ONLY TO EARNINGS AND PROFITS ACCUMULATED IN
THE TAX YEAR IN QUESTION OR TO ALL ACCUMULATED AND UNDISTRIBUTED
EARNINGS AS SHOWN BY THE CORPORATION'S EARNED SURPLUS ACCOUNT.  I
ASSUME THE COURT REFERS TO THE LATTER, AS THE STATUTORY LANGUAGE AND
PURPOSE CONTEMPLATE CONSIDERATION OF THE TOTAL ACCUMULATION IN
DETERMINING WHETHER THE RETENTION OF EARNINGS AND PROFITS OF A GIVEN
YEAR HAS BEEN IN EXCESS OF THE AMOUNT JUSTIFIED BY REASONABLE BUSINESS
NEEDS. 

/5/ IT IS NOT UNUSUAL, OF COURSE, FOR A CORPORATION ALSO TO SHOW
PARENTHETICALLY ON ITS BALANCE SHEET, OR IN A FOOTNOTE THERETO, THE
MARKET PRICE OF ASSETS WHEN THAT FIGURE CAN BE ASCERTAINED READILY. 
BUT UNREALIZED APPRECIATED VALUE, WHETHER BASED ON MARKET PRICE OR AN
APPRAISAL OF THE ASSET, IS NORMALLY NOT INCLUDED IN THE SUM OF A
CORPORATION'S ASSETS OR IN ITS SURPLUS ACCOUNT ON THE LIABILITY SIDE OF
ITS BALANCE SHEET. 

/6/ SEE 11 W. FLETCHER, CYCLOPEDIA OF THE LAW OF PRIVATE
CORPORATIONS 5329, 5329.1, 5335, 5335.1 (1971).  SOME STATES HAVE
STATUTES EXPRESSLY PROHIBITING RECOGNITION OF UNREALIZED APPRECIATION
AS A SOURCE UPON WHICH A CORPORATION CAN RELY IN DETERMINING THE AMOUNT
OF A DIVIDEND THAT LEGALLY CAN BE PAID.  E. G., CAL. CORP. CODE 1502,
1505 (1955); IND. ANN. STAT. 23 - 1 - 2 - 15 (A) (1972).  OTHER STATES
HAVE STATUTES ALLOWING LIMITED RECOGNITION OF UNREALIZED APPRECIATION. 
E. G., MINN. STAT. 301.22 (1) (1974) (A CORPORATION MAY TAKE INTO
ACCOUNT APPRECIATION OF "SECURITIES HAVING A READILY ASCERTAINABLE
MARKET VALUE"; OTHERWISE, UNREALIZED APPRECIATION MAY NOT BE COUNTED IN
COMPUTING EARNINGS AVAILABLE FOR DIVIDENDS); OHIO REV. CODE ANN.
1701.33 (A) (SUPP. 1974) (ALLOWS ONLY SHARE DIVIDENDS TO BE PAID FROM
UNREALIZED APPRECIATION).  THE DECISIONAL LAW OF STATES LACKING PRECISE
STATUTORY GUIDANCE GENERALLY PROHIBITS RELIANCE ON UNREALIZED
APPRECIATION.  11 W. FLETCHER, SUPRA, 5335.1; H. HENN, HANDBOOK OF THE
LAW OF CORPORATIONS AND OTHER BUSINESS ENTERPRISES 320, PP. 652 - 653
(1970). 

GEORGIA'S LAW FOLLOWS THE MODEL BUSINESS CORPORATION ACT, ALLOWING
PAYMENT OF CASH OR PROPERTY DIVIDENDS ONLY OUT OF EARNED SURPLUS OR
CURRENT EARNINGS.  GA. CODE ANN. 22 - 511(A)(1) (1970); MODEL BUS. 
CORP.  ACT 45(A).  SHARE DIVIDENDS MAY BE PAID OUT OF CAPITAL SURPLUS
ON CERTAIN CONDITIONS, GA. CODE ANN. 22 - 511(A)(4); MODEL BUS.  CORP. 
ACT 45(D), AND STRICTER CONDITIONS GOVERN THE DECLARATION OF CASH OR
PROPERTY DIVIDENDS OUT OF CAPITAL SURPLUS.  GA. CODE ANN. 22 - 512;
MODEL BUS.  CORP.  ACT 46.  COMMENTATORS HAVE SUGGESTED THAT UNDER THE
MODEL ACT A CORPORATION COULD REVALUE ITS ASSETS, CREATING CAPITAL
SURPLUS OUT OF THE UNREALIZED APPRECIATION, AND THEN PAY DIVIDENDS OUT
OF THE CAPITAL SURPLUS, BUT THAT COURSE OF ACTION IS CONSIDERED QUITE
RISKY FOR THE DIRECTORS.  BUGGE, UNREALIZED APPRECIATION AS A SOURCE OF
SHAREHOLDER DISTRIBUTIONS UNDER THE WISCONSIN BUSINESS CORPORATION LAW,
1964 WIS. L. REV. 292, 300 - 304, 312 - 313; HACKNEY, THE FINANCIAL
PROVISIONS OF THE MODEL BUSINESS CORPORATION ACT, 70 HARV. L. REV.
1357, 1377 - 1381 (1957).  UNDER GEORGIA LAW, GA. CODE ANN. 22 -
715(C), AS UNDER THE MODEL ACT 48, A DIRECTOR IS NOT LIABLE FOR AN
ILLEGAL DIVIDEND DISTRIBUTION IF IN COMPUTING THE AMOUNT AVAILABLE FOR
DIVIDENDS HE CONSIDERS THE CORPORATE ASSETS AT THEIR "BOOK VALUE." 

/7/ AMONG OTHER THINGS, THE TERM "SECURITY" INCLUDES STOCKS, BONDS,
DEBENTURES, CERTIFICATES OF INTEREST OR PARTICIPATION IN PROFIT-SHARING
AGREEMENTS, COLLATERAL TRUST CERTIFICATES, INVESTMENT CONTRACTS, VOTING
TRUST CERTIFICATES, FRACTIONAL UNDIVIDED INTERESTS IN OIL, GAS, OR
OTHER MINERAL RIGHTS, OR "IN GENERAL, ANY INTEREST OR INSTRUMENT
COMMONLY KNOWN AS A 'SECURITY ....'"  48 STAT. 74, AS AMENDED, 15
U.S.C. 77B(1); 48 STAT. 882, AS AMENDED, 15 U.S.C. 78C(10).  SEE UNITED
HOUSING FOUNDATION, INC. V. FORMAN, 421 U.S. 837 (1975). 

/8/ THE FOLLOWING HYPOTHETICAL EXAMPLE SUGGESTS THE DIFFICULTY OF
APPLICATION OF TODAY'S DECISION.  IF PETITIONER HAD INVESTED THE SAME
$147,000 OF EARNINGS IN SOUTHERN PINE TIMBERLANDS, AND IF BY THE END OF
THE TAX YEARS IN QUESTION THE UNREALIZED APPRECIATION IN VALUE OF THESE
LANDS WAS PRECISELY THE SAME $1,475,000 AND $2,416,000, RESPECTIVELY,
AS WAS THE APPRECIATION OF THE XEROX STOCK HERE AT ISSUE, WOULD THE
COMMISSIONER HAVE BEEN ENTITLED TO TAKE THE UNREALIZED APPRECIATION
INTO ACCOUNT?  IN MANY INSTANCES, WELL-SITUATED TIMBERLANDS HAVE
APPRECIATED IN VALUE AS MUCH OR MORE THAN MOST MARKETABLE SECURITIES. 
SUCH LANDS ARE NOT CARRIED ON CORPORATE BALANCE SHEETS AS CURRENT
ASSETS, AND YET EXPERIENCE INDICATES THAT GROWING TIMBER AND
TIMBERLANDS ARE OFTEN HIGHLY MARKETABLE. 

/9/ I HARDLY THINK THAT THE COURT'S BRANDISHMENT OF THE THREAT OF
CRIMINAL LIABILITY FOR WILLFUL TAX EVASION THROUGH INVESTMENT IN A
PARTICULAR TYPE OF ASSET, SEE ANTE, AT 630 N. 11, WILL SUFFICE TO DETER
FUTURE INVESTMENT DECISIONS MADE WITH THE INTENTION OF AVOIDING THE
PITFALLS OF THIS DECISION.  I CANNOT AGREE WITH THE COURT'S SUGGESTION
THAT THIS MOTIVATION WOULD CONVERT AN OTHERWISE LEGITIMATE INVESTMENT
CHOICE INTO A CRIMINAL OFFENSE.  CORPORATE MANAGEMENT CONSIDERS THE
POTENTIAL TAX IMPLICATIONS OF COUNTLESS BUSINESS DECISIONS AND MIGHT
REASONABLY BE EXPECTED TO ASSESS THE POSSIBLE IMPACT OF A CHOICE
BETWEEN INVESTING IN NONLIQUID OR LIQUID ASSETS ON ITS POTENTIAL FUTURE
LIABILITY FOR THE ACCUMULATED EARNINGS TAX.  "THE FACT THAT THE
INCIDENCES OF INCOME TAXATION MAY HAVE BEEN TAKEN INTO ACCOUNT BY
ARRANGING MATTERS ONE WAY RATHER THAN ANOTHER SO LONG AS THE WAY CHOSEN
WAS THE WAY THE LAW ALLOWS, DOES NOT MAKE A TRANSACTION SOMETHING ELSE
THAN IT TRULY IS ...."  COMMISSIONER V. WODEHOUSE, 337 U.S. 369, 410
(1949) (FRANKFURTER, J., DISSENTING).  THIS IS EXPECIALLY TRUE WHERE
QUESTIONS OF CRIMINAL LIABILITY ARE INVOLVED. 

/10/ THE FOLLOWING SWINGS IN THE VALUE OF XEROX STOCK ILLUSTRATE THE
POINT:  ON MAY 16, 1975, THE HIGH WAS 87 AND THE LOW 78 1/2.  IF
PETITIONER CONTINUED TO OWN 10,000 SHARES, ITS POTENTIALLY AVAILABLE
SOURCE OF FUNDS WOULD HAVE SHRUNK BY $85,000 IN A SINGLE DAY.  IN THE
MONTH OF AUGUST 1974, XEROX VARIED IN MARKET PRICE FROM 98 TO A LOW OF
74 1/4, A 24.2% SWING.  AGAIN, ASSUMING A HOLDING OF 10,000 SHARES, THE
OWNER WOULD HAVE SUFFERED PAPER "LOSSES" IN THAT ONE MONTH OF
APPROXIMATELY $237,500, OR ABOUT ONE-FOURTH OF MARKET VALUE. 
CONSIDERING THE ENTIRE CALENDAR YEAR OF 1965, XEROX SOLD AS HIGH AS 71
AND AS LOW AS 31, A VARIATION ON THE DOWN SIDE OF 55.9% AND ON THE UP
SIDE OF 120%.  IN DOLLARS, A PERSON WHO BOUGHT 10,000 SHARES OF XEROX
IN 1965 AT ITS LOWEST AND SOLD AT THE HIGHEST PRICE WOULD HAVE ENJOYED
A PRETAX PROFIT OF $400,000.  BUT IN 1974, IN WHICH THE HIGH WAS 127
AND THE LOW 49, A TAXPAYER WHOSE XEROX STOCK WAS ASSESSED ON THE DAY OF
THE MARKET'S PEAK, AND WHO CONTINUED TO OWN IT, WOULD FIND ITSELF AT
THE LATER DATE HAVING "LOST" 61% OF WHAT THIS COURT DEEMS THE
"REALISTIC" OR "TRUE" VALUE OF THE INVESTMENT.  SEE APPENDIX A-1,
INFRA. 

/11/ THE WIDE GYRATIONS IN VALUE OF SOME OF THE EQUITY SECURITIES
LISTED IN THE APPENDICES TO THIS OPINION ILLUSTRATE THE POINT.  FOR
EXAMPLE, ON MAY 16, 1975, THE COMMON STOCK OF THE FALSTAFF CORP. FELL
20.6% IN A SINGLE DAY.  THE COURT'S OPINION ASSUMES THAT CORPORATE
MANAGEMENT SHOULD PLAN TO SATISFY FUTURE BUSINESS NEEDS FROM THE
UNREALIZED APPRECIATION IN VALUE OF SUCH SECURITIES AT A GIVEN POINT IN
TIME.  THE INSTABILITY OF MARKET PRICES OF COMMON STOCKS SUGGESTS THAT
THIS ASSUMPTION IS UNSOUND. 

/12/ THE BASIC FACTS OF NATIONAL GROCERY ARE NOT FULLY REVEALED IN
THIS COURT'S OPINION, BUT MUST BE OBTAINED FROM THE OPINIONS OF THE
BOARD OF TAX APPEALS, 35 B.T.A. 163 (1936), THE COURT OF APPEALS FOR
THE THIRD CIRCUIT, 92 F. 2D 931 (1937), AND THE BRIEFS FILED IN THIS
COURT BY THE PARTIES.  IN ADDITION TO THOSE SET FORTH ABOVE, THE
FOLLOWING ARE RELEVANT:  THE DECLINE IN MARKET VALUE OF THE TAXPAYER'S
LISTED SECURITIES IN THE FISCAL YEAR AGGREGATED $943,500; THE
$2,000,000 SHRINKAGE FIGURE MENTIONED BY THIS COURT INCLUDED, IN
ADDITION, THE TAXPAYER'S ATTEMPTED ELIMINATION OF $1,068,000 COST VALUE
OF BANK STOCKS CLAIMED TO BE WHOLLY UNMARKETABLE.  BRIEF FOR RESPONDENT
IN NO. 723, O.T. 1937, PP. 34 - 35.  IN ADDITION, AS APPEARS FROM THE
OPINION OF THE COURT OF APPEALS, NATIONAL GROCERY ALSO CLAIMED "THAT
(ITS) MERCHANDISE SHRANK IN VALUE WELL ON TO A QUARTER MILLION DOLLARS,
AND THE REAL ESTATE DECLINED IN VALUE $125,000."  92 F. 2D, AT 933. 
ALL OF THIS ALLEGED DEPRECIATION AND SHRINKAGE WAS CLAIMED TO HAVE
OCCURRED IN THE TAXABLE YEAR, AND WAS SOUGHT TO BE OFFSET AGAINST NET
EARNINGS FOR THAT YEAR. 

KIRK MCALPIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE HERSCHEL M. BLOOM AND MICHAEL C. RUSS. 

ASSISTANT ATTORNEY GENERAL CRAMPTON ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, STUART A.
SMITH, AND ELMER J. KELSEY. 

CAROLYN E. AGGER, WALTER J. ROCKLER, AND JOHN S. MCDANIEL, JR.,
FILED A BRIEF FOR AMERICAN TRADING AND PRODUCTION CORP., AS AMICUS
CURIAE. 
..END :













GORDON V. NEW YORK STOCK EXCHANGE, 422 U.S. 659 


       GORDON V. NEW YORK STOCK EXCHANGE, INC., ET AL.

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 74 - 304.  ARGUED MARCH 25 - 26, 1975-- DECIDED JUNE

        26, 1975; 498 F.2D 1303, AFFIRMED. 


    PETITIONER, INDIVIDUALLY AND ON BEHALF OF AN ASSERTED CLASS OF

  SMALL INVESTORS, FILED SUIT AGAINST RESPONDENTS--THE NEW YORK

  STOCK EXCHANGE, THE AMERICAN STOCK EXCHANGE, AND TWO MEMBER FIRMS

  OF THE EXCHANGES--CLAIMING THAT THE SYSTEM OF FIXED COMMISSION

  RATES UTILIZED BY THE EXCHANGES AT THAT TIME FOR TRANSACTIONS OF

  LESS THAN $500,000 VIOLATED 1 AND 2 OF THE SHERMAN ACT.  THE

  DISTRICT COURT AND THE COURT OF APPEALS BOTH CONCLUDED THAT THE

  FIXED COMMISSION RATES WERE IMMUNIZED FROM ANTITRUST ATTACK

BECAUSE OF THE AUTHORITY OF THE SECURITIES AND EXCHANGE OF 1934

  TO APPROVE OR DISAPPROVE EXCHANGE COMMISSION RATES AND ITS

  EXERCISE OF THAT POWER.  HELD:  THE SYSTEM OF FIXED COMMISSION

  RATES, WHICH IS UNDER THE ACTIVE SUPERVISION OF THE SEC, IS

  BEYOND THE REACH OF THE ANTITRUST LAWS.  PP. 663 - 691. 

     (A) THE STATUTORY PROVISION AUTHORIZING REGULATION OF RATES,
19

  (B)(9), THE SEC'S LONG REGULATORY PRACTICE IN REVIEWING PROPOSED

  RATE CHANGES AND IN MAKING DETAILED STUDIES OF RATES, CULMINATING

  IN THE ADOPTION OF A RULE REQUIRING A TRANSITION TO COMPETITIVE

RATES, AND CONTINUED CONGRESSIONAL APPROVAL OF THE SEC'S

AUTHORITY OVER RATES, ALL SHOW THAT CONGRESS INTENDED THE

SECURITIES EXCHANGE ACT TO LEAVE THE SUPERVISION OF THE FIXING OF

  REASONABLE RATES TO THE SEC.  PP. 663 - 682. 

   (B) TO INTERPOSE ANTITRUST LAWS, WHICH WOULD BAR FIXED

  COMMISSION RATES AS PER SE VIOLATIONS OF THE SHERMAN ACT, IN THE

  FACE OF POSITIVE SEC ACTION, WOULD UNDULY INTERFERE WITH THE

  INTENDED OPERATION OF THE SECURITIES EXCHANGE ACT.  HENCE,

  IMPLIED REPEAL OF THE ANTITRUST LAWS IS NECESSARY TO MAKE THAT

  ACT WORK AS INTENDED, SINCE FAILURE TO IMPLY REPEAL WOULD RENDER

  19 (B)(9) NUGATORY.  SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S.

  341; RICCI V. CHICAGO MERCANTILE EXCHANGE, 409 U.S. 289,

  DISTINGUISHED.  PP. 682 - 691. 

     BLACKMUN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

  DOUGLAS, J., FILED A CONCURRING OPINION, POST, P. 691.  STEWART,

  J., FILED A CONCURRING OPINION, IN WHICH BRENNAN, J., JOINED,

  POST, P. 692 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE PROBLEM OF RECONCILIATION OF THE ANTITRUST
LAWS WITH A FEDERAL REGULATORY SCHEME IN THE PARTICULAR CONTEXT OF THE
PRACTICE OF THE SECURITIES EXCHANGES AND THEIR MEMBERS OF USING FIXED
RATES OF COMMISSION.  THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT CONCLUDED THAT FIXED COMMISSION RATES WERE IMMUNIZED
FROM ANTITRUST ATTACK BECAUSE OF THE SECURITIES AND EXCHANGE
COMMISSION'S AUTHORITY TO APPROVE OR DISAPPROVE EXCHANGE COMMISSION
RATES AND ITS EXERCISE OF THAT POWER. 

        I 

IN EARLY 1971 PETITIONER RICHARD A. GORDON, INDIVIDUALLY AND ON
BEHALF OF AN ASSERTED CLASS OF SMALL INVESTORS, FILED THIS SUIT AGAINST
THE NEW YORK STOCK EXCHANGE, INC. (NYSE), THE AMERICAN STOCK EXCHANGE,
INC. (AMEX), AND TWO MEMBER FIRMS OF THE EXCHANGES.  /1/  THE COMPLAINT
CHALLENGED A VARIETY OF EXCHANGE RULES AND PRACTICES AND, IN
PARTICULAR, CLAIMED THAT THE SYSTEM OF FIXED COMMISSION RATES, UTILIZED
BY THE EXCHANGES AT THAT TIME FOR TRANSACTIONS LESS THAN $500,000,
VIOLATED 1 AND 2 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15
U.S.C. 1 AND 2.  OTHER CHALLENGES IN THE COMPLAINT FOCUSED ON (1) THE
VOLUME DISCOUNT ON TRADES OF OVER 1,000 SHARES, AND THE PRESENCE OF
NEGOTIATED RATHER THAN FIXED RATES FOR TRANSACTIONS IN EXCESS OF
$500,000; /2/ (2) THE RULES LIMITING THE NUMBER OF EXCHANGE
MEMBERSHIPS; AND (3) THE RULES DENYING DISCOUNTED COMMISSION RATES TO
NONMEMBERS USING EXCHANGE FACILITIES.  /3/ 

RESPONDENTS MOVED FOR SUMMARY JUDGMENT ON THE GROUND THAT THE
CHALLENGED ACTIONS WERE SUBJECT TO THE OVERRIDING SUPERVISION OF THE
SECURITIES AND EXCHANGE COMMISSION (SEC) UNDER 19(B) OF THE SECURITIES
EXCHANGE ACT OF 1934, 48 STAT. 898, AS AMENDED, 15 U.S.C. 78SB), AND,
THEREFORE, WERE NOT SUBJECT TO THE STRICTURES OF THE ANTITRUST LAWS. 
THE DISTRICT COURT GRANTED RESPONDENTS' MOTION AS TO ALL CLAIMS.  366
F. SUPP. 1261 (1973).  DISMISSING THE EXCHANGE MEMBERSHIP LIMITATION
AND THE ROBINSON-PATMAN ACT CONTENTIONS AS WITHOUT MERIT, /4/ THE COURT
FOCUSED ON THE RELATIONSHIP BETWEEN THE FIXED COMMISSION RATES AND THE
SHERMAN ACT MANDATES.  IT UTILIZED THE FRAMEWORK FOR ANALYSIS OF
ANTITRUST IMMUNITY IN THE REGULATED SECURITIES AREA THAT WAS
ESTABLISHED A DECADE AGO IN SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S.
341 (1963).  SINCE 19(B)(9) OF THE EXCHANGE ACT AUTHORIZED THE SEC TO
SUPERVISE THE EXCHANGES "IN RESPECT OF SUCH MATTERS AS...THE FIXING OF
REASONABLE RATES OF COMMISSION," THE COURT HELD APPLICABLE THE
ANTITRUST IMMUNITY RESERVED IN SILVER FOR THOSE CASES WHERE "REVIEW OF
EXCHANGE SELF-REGULATION (IS) PROVIDED THROUGH A VEHICLE OTHER THAN THE
ANTITRUST LAWS."  373 U.S., AT 360.  IT FURTHER NOTED THAT THE PRACTICE
OF FIXED COMMISSION RATES HAD CONTINUED WITHOUT SUBSTANTIAL CHALLENGE
AFTER THE ENACTMENT OF THE 1934 ACT, AND THAT THE SEC HAD BEEN ENGAGED
IN DETAILED STUDY OF THE RATE STRUCTURE FOR A DECADE, CULMINATING IN
THE REQUIREMENT FOR ABOLITION OF FIXED RATES AS OF MAY 1, 1975. 

ON APPEAL, THE SECOND CIRCUIT AFFIRMED.  498 F.2D 1303 (1974). 
CHARACTERIZING PETITIONER'S OTHER CHALLENGES AS FRIVOLOUS, THE APPELATE
COURT DEVOTED ITS OPINION TO THE PROBLEM OF ANTITRUST IMMUNITY.  IT,
TOO, USED SILVER AS A BASIS FOR ITS ANALYSIS.  BECAUSE THE SEC, BY
19(B)(9), WAS GIVEN SPECIFIC REVIEW POWER OVER THE FIXING OF COMMISSION
RATES, BECAUSE OF THE LANGUAGE, LEGISLATIVE HISTORY, AND POLICY OF THE
EXCHANGE ACT, AND BECAUSE OF THE SEC'S ACTUAL EXERCISE OF ITS
SUPERVISORY POWER, THE COURT OF APPEALS DETERMINED THAT THIS CASE
DIFFERED FROM SILVER, AND THAT ANITRUST IMMUNITY WAS PROPER. 

BY HIS PETITION FOR CERTIORARI, PETITIONER SOUGHT REVIEW ONLY OF THE
DETERMINATION THAT FIXED COMMISSION RATES ARE BEYOND THE REACH OF THE
ANTITRUST LAWS.  BECAUSE OF THE VITAL IMPORTANCE OF THE QUESTION, AND
AT THE URGING OF ALL THE PARTIES, WE GRANTED CERTIORARI.  419 U.S. 1018
(1974). 

        II 

RESOLUTION OF THE ISSUE OF ANTITRUST IMMUNITY FOR FIXED COMMISSION
RATES MAY BE MADE ADEQUATELY ONLY UPON A THOROUGH INVESTIGATION OF THE
PRACTICE IN THE LIGHT OF STATUTORY RESTRICTIONS AND DECIDED CASES.  WE
BEGIN WITH A BRIEF REVIEW OF THE HISTORY OF COMMISSION RATES IN THE
SECURITIES INDUSTRY. 

COMMISSION RATES FOR TRANSACTIONS ON THE STOCK EXCHANGES HAVE BEEN
SET BY AGREEMENT SINCE THE ESTABLISHMENT OF THE FIRST EXCHANGE IN THIS
COUNTRY.  THE NEW YORK STOCK EXCHANGE WAS FORMED WITH THE BUTTONWOOD
TREE AGREEMENT OF 1792, AND FROM THE BEGINNING MINIMUM FEES WERE SET
AND OBSERVED BY THE MEMBERS.  THAT AGREEMENT ITSELF STATED: 

     "WE THE SUBSCRIBERS, BROKERS FOR THE PURCHASE AND SALE OF

  PUBLIC STOCK, DO HEREBY SOLEMNLY PROMISE AND PLEDGE OURSELVES TO

  EACH OTHER, THAT WE WILL NOT BUY OR SELL FROM THIS DAY FOR ANY

  PERSON WHATSOEVER, ANY KIND OF PUBLIC STOCK AT A LESS RATE THAN

  ONE QUARTER PER CENT.  COMMISSION ON THE SPECIE VALUE, AND THAT

  WE WILL GIVE A PREFERENCE TO EACH OTHER IN OUR NEGOTIATIONS.'" 

F. EAMES, THE NEW YORK STOCK EXCHANGE 14 (1968 ED). 

SEE GENERALLY, R. DOEDE, THE MONOPOLY POWER OF THE NEW YORK STOCK
EXCHANGE, REPRINTED IN HEARINGS ON S.3169 BEFORE THE SUBCOMMITTEE ON
SECURITIES OF THE SENATE COMMITTEE ON BANKING, HOUSING AND URBAN
AFFAIRS, 92D CONG., 2D SESS., 405, 412 - 427 (1972).  SUCCESSIVE
CONSTITUTIONS OF THE NYSE HAVE CARRIED FORWARD THIS BASIC PROVISION. 
SIMILARLY, WHEN AMEX EMERGED IN 1908 - 1910, A PATTERN OF FIXED
COMMISSION RATES WAS ADOPTED THERE. 

THESE FIXED RATE POLICIES WERE NOT UNNOTICED BY RESPONSIBLE
CONGRESSIONAL BODIES.  FOR EXAMPLE, THE HOUSE COMMITTEE ON BANKING AND
CURRENCY, IN A GENERAL REVIEW OF THE STOCK EXCHANGES UNDERTAKEN IN
1913, REPORTED THAT THE FIXED COMMISSION RATE RULES WERE "RIGIDLY
ENFORCED" IN ORDER "TO PREVENT COMPETITION AMONGST THE MEMBERS."  H.R.
REP. NO. 1593, 62D CONG., 3D SESS., 39 (1913).  /5/ THE REPORT, KNOWN
AS THE PUJO REPORT, DID NOT RECOMMEND ANY CHANGE IN THIS POLICY, FOR
THE COMMITTEE BELIEVED 

"THE PRESENT RATES TO BE REASONABLE, EXCEPT AS TO STOCKS, SAY, OF
$25 OR LESS IN VALUE, AND THAT THE EXCHANGE SHOULD BE PROTECTED IN THIS
RESPECT BY THE LAW UNDER WHICH IT SHALL BE INCORPORATED AGAINST A KIND
OF COMPETITION BETWEEN MEMBERS THAT WOULD LOWER

    THE SERVICE AND THREATEN THE RESPONIBILITY OF MEMBERS.  A

  VERY LOW OR COMPETITIVE COMMISSION RATE WOULD ALSO PROMOTE
SPECULATION AND DESTROY THE VALUE

  OF MEMBERSHIP."  ID., AT 115 - 116. 

DESPITE THE MONOPOLY POWER OF THE FEW EXCHANGES, EXHIBITED NOT ONLY
IN THE AREA OF COMMISSION RATES BUT IN A WIDE VARIETY OF OTHER ASPECTS,
THE EXCHANGES REMAINED ESSENTIALLY SELF-REGULATING AND WITHOUT
SIGNIFICANT SUPERVISION UNTIL THE ADOPTION OF THE SECURITIES EXCHANGE
ACT OF 1934, 48 STAT. 881, AS AMENDED, 15 U.S.C. 78A ET SEQ. AT THE
LENGTHY HEARINGS BEFORE ADOPTION OF THAT ACT, SOME ATTENTION WAS GIVEN
TO THE FIXED COMMISSION RATE PRACTICE AND TO ITS ANTICOMPETITIVE
FEATURES.  SEE HEARINGS ON S. RES. 84 (72D CONG.) AND S. RES. 56 AND 97
(73D CONG.) BEFORE THE SENATE COMMITTEE ON BANKING AND CURRENCY, 73D
CONG., 1ST AND 2D SESS., PTS.  13, 15, AND 16, PP. 6075, 6080, 6868,
AND 7705 (1934) (HEREAFTER SENATE HEARINGS).  SEE ALSO HEARINGS ON S.
RES. 84 BEFORE THE SENATE COMMITTEE ON BANKING AND CURRENCY, 72D CONG.,
1ST SESS., PT. 1, P. 85 (1932); HEARINGS ON H. R. 7852 AND H. R. BEFORE
THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 73D CONG., 2D
SESS., 320 - 321, 423 (1934). 

PERHAPS THE MOST PERTINENT TESTIMONY IN THE HEARINGS PREPARATORY TO
ENACTMENT OF THE EXCHANGE ACT WAS PROFFERED BY SAMUEL UNTERMYER,
FORMERLY CHIEF COUNSEL TO THE COMMITTEE THAT DRAFTED THE PUJO REPORT. 
IN COMMENTING ON PROPOSED S. 2693, MR. UNTERMYER NOTED THAT ALTHOUGH
THE BILL WOULD PROVIDE THE FEDERAL SUPERVISORY COMMISSION WITH 

"THE RIGHT TO PRESCRIBE UNIFORM RATES OF COMMISSION, IT DOES NOT
OTHERWISE AUTHORIZE THE COMMISSION TO FIX RATES, WHICH IT SEEMS TO ME
IT SHOULD DO AND WOULD DO BY STRIKING OUT THE WORD 

     'UNIFORM.' 

     THAT WOULD PERMIT THE COMMISSION TO FIX RATES. 

     "THE VOLUME OF THE BUSINESS TRANSACTED ON THE EXCHANGE HAS

  INCREASED MANYFOLD.  GREAT FORTUNES HAVE BEEN MADE BY BROKERS

  THROUGH THIS MONOPOLY.  THE PUBLIC HAS NO ACCESS TO THE EXCHANGE

  BY WAY OF MEMBERSHIP EXCEPT BY BUYING A SEAT AND PAYING A VERY

  LARGE SUM FOR IT.  THEREFORE IT IS A MONOPOLY.  PROBABLY IT HAS

  TO BE SOMETHING OF A MONOPOLY.  BUT AFTER ALL IT IS ESSENTIALLY A

  PUBLIC INSTITUTION.  IT IS THE GREATEST FINANCIAL AGENCY IN THE

  WORLD, AND SHOULD BE NOT ONLY CONTROLLED BY THE PUBLIC BUT IT

 SEEMS TO ME ITS MEMBERSHIP AND THE COMMISSIONS CHARGED SHOULD

  EITHER BE FIXED BY SOME GOVERNMENTAL AUTHORITY OR BE SUPERVISED

  BY SUCH AUTHORITY.  AS MATTERS NOW STAND, THE EXCHANGE CAN CHARGE

  ALL THAT THE TRAFFIC WILL BEAR, AND THAT IS A BURDEN UPON

  COMMERCE."  SENATE HEARINGS 7705. 

AS FINALLY ENACTED, THE EXCHANGE ACT APPARENTLY REFLECTED THE
UNTERMYER SUGGESTION, FOR IT GAVE THE SEC THE POWER TO FIX AND INSURE
"REASONABLE" RATES.  SECTION 19(B) PROVIDED: 

  "(B) THE COMMISSION IS FURTHER AUTHORIZED, IF AFTER MAKING

  APPROPRIATE REQUEST IN WRITING TO A NATIONAL SECURITIES EXCHANGE

  THAT SUCH EXCHANGE EFFECT ON ITS OWN BEHALF SPECIFIED CHANGES IN

  ITS RULES AND PRACTICES, AND AFTER APPROPRIATE NOTICE AND

  OPPORTUNITY FOR HEARING, THE COMMISSION DETERMINES THAT SUCH

  EXCHANGE HAS NOT MADE THE CHANGES SO REQUESTED, AND THAT SUCH

  CHANGES ARE NECESSARY OR APPROPRIATE FOR THE PROTECTION OF

  INVESTORS OR TO INSURE FAIR DEALING IN SECURITIES TRADED IN UPON

  SUCH EXCHANGE OR TO INSURE FAIR ADMINISTRATION OF SUCH EXCHANGE,

  BY RULES OR REGULATIONS OR BY ORDER TO ALTER OR SUPPLEMENT THE

 RULES OF SUCH EXCHANGE (INSOFAR AS NECESSARY OR APPROPRIATE TO

  EFFECT SUCH CHANGES) IN RESPECT OF SUCH MATTERS AS...(9) THE

  FIXING OF REASONABLE RATES OF COMMISSION, INTEREST, LISTING, AND

  OTHER CHARGES."  667 (EMPHASIS ADDED.) 

     OTHER CHARGES".  (EMPHASIS ADDED.)  SELF-REGULATION BY THE
EXCHANGES COUPLED WITH OVERSIGHT BY THE SEC.  IT IS TO BE NOTED THAT
THE NINTH CATEGORY IS ONE OF 12 SPECIFICALLY ENUMERATED.  IN MERRILL
LYNCH, PIERCE, FENNER & SMITH V. WARE, 414 U.S. 117, 127 - 128 (1973),
WE OBSERVED: 

"TWO TYPES OF REGULATION ARE REFLECTED IN THE ACT.  SOME PROVISIONS
IMPOSE DIRECT REQUIREMENTS AND PROHIBITIONS.  AMONG THESE ARE MANDATORY
EXCHANGE REGISTRATION, RESTRICTIONS ON BROKER AND DEALER BORROWING, AND
THE PROHIBITION OF MANIPULATIVE OR DECEPTIVE PRACTICES.  OTHER
PROVISIONS ARE FLEXIBLE AND RELY ON THE TECHNIQUE OF SELF-REGULATION TO
ACHIEVE THEIR OBJECTIVES... SUPERVISED SELF-REGULATION, ALTHOUGH
CONSONANT WITH THE TRADITIONAL PRIVATE GOVERNANCE OF EXCHANGES, ALLOWS
THE GOVERNMENT TO MONITOR EXCHANGE BUSINESS IN THE PUBLIC INTEREST." 
THE CONGRESSIONAL REPORTS CONFIRM THAT WHILE THE DEVELOPMENT OF RULES
FOR THE GOVERNING OF EXCHANGES, AS ENUMERATED IN 19(B), WAS LEFT TO THE
EXCHANGES THEMSELVES IN THE FIRST INSTANCE, THE SEC COULD COMPEL
ADOPTION OF THOSE CHANGES IT FELT WERE NECESSARY TO INSURE FAIR DEALING
AND PROTECTION OF THE PUBLIC.  SEE H.R. REP. NO. 1383, 73D CONG., 2D
SESS., 15 (1934); S. REP. NO. 792, 73D CONG., 2D SESS., 13 (1934).  THE
LATTER REPORT, ID., AT 15, NOTED THAT REGISTERED EXCHANGES WERE
REQUIRED TO PROVIDE THE SEC WITH "COMPLETE INFORMATION" REGARDING ITS
RULES. 

        III 

WITH THIS LEGISLATIVE HISTORY IN MIND, WE TURN TO THE ACTUAL POST
1934 EXPERIENCE OF COMMISSION RATES ON THE NYSE AND AMEX.  AFTER THESE
TWO EXCHANGES HAD REGISTERED IN 1934 UNDER 6 OF THE EXCHANGE ACT, 15
U.S.C. 78F, BOTH PROCEEDED TO PRESCRIBE MINIMUM COMMISSION RATES JUST
AS THEY HAD PRIOR TO THE ACT.  APP. A42, A216.  THESE RATES WERE
CHANGED PERIODICALLY BY THE EXCHANGES, /6/ AFTER THEIR SUBMISSION TO
THE SEC PURSUANT TO 6(A)(4), 15 U.S.C. 78FA)(4), AND SEC RULE 17A-8, 17
CFR 240.17A-8.  ALTHOUGH SEVERAL RATE CHAGES APPEAR TO HAVE BEEN
EFFECTUATED WITHOUT COMMENT BY THE SEC, IN OTHER INSTANCES THE SEC
THOROUGHLY EXERCISED ITS SUPERVISORY POWERS.  THUS, FOR EXAMPLE, AS
EARLY AS 1958 A STUDY OF THE NYSE COMMISSION RATES TO DETERMINE WHETHER
THE RATES WERE "REASONABLE AND IN ACCORDANCE WITH THE STANDARDS
CONTEMPLATED BY APPLICABLE PROVISIONS OF THE SECURITIES EXCHANGE ACT OF
1934," WAS ANNOUNCED BY THE SEC.  SEC EXCHANGE ACT RELEASE NO. 5678,
APR. 14, 1958, APP. A240.  THIS STUDY RESULTED IN AN AGREEMENT BY THE
NYSE TO REDUCE COMMISSION RATES IN CERTAIN TRANSACTIONS, TO ENGAGE IN
FURTHER STUDY OF THE RATE STRUCTURE BY THE NYSE IN COLLABORATION WITH
THE SEC, AND TO PROVIDE THE SEC WITH GREATER ADVANCE NOTICE OF PROPOSED
RATE CHANGES.  SEC EXCHANGE ACT RELEASE NO. 5889, FEB. 20, 1959, APP.
A247.  THE SEC SPECIFICALLY STATED THAT IT HAD UNDERTAKEN THE STUDY "IN
VIEW OF THE RESPONSIBILITIES AND DUTIES IMPOSED UPON THE COMMISSION BY
EXCHANGES, INCLUDING RULES RELATING TO THE FIXING OF COMMISSION
RATES."  IBID. 

UNDER SUBSECTION (D) OF 19 OF THE ACT (WHICH SUBSECTION WAS ADDED IN
1961, 75 STAT. 465), THE SEC WAS DIRECTED TO INVESTIGATE THE ADEQUACY
OF EXCHANGE RULES FOR THE PROTECTION OF INVESTORS.  ACCORDINGLY, THE
SEC BEGAN A DETAILED STUDY OF EXCHANGE RULES IN THAT YEAR.  IN 1963 IT
RELEASED ITS CONCLUSIONS IN A SIX-VOLUME STUDY.  SEC REPORT OF SPECIAL
STUDY OF SECURITIES MARKETS, H.R.DOC.  NO. 95, 88TH CONG., 1ST SESS.
THE STUDY, AMONG OTHER THINGS, FOCUSED ON PROBLEMS OF THE STRUCTURE OF
COMMISSION RATES AND PROCEDURES, AND STANDARDS FOR SETTING AND
REVIEWING RATE LEVELS.  ID., PT. 5, P. 102.  THE SEC FOUND THAT THE
RIGID COMMISSION RATE STRUCTURE BASED ON VALUE OF THE ROUND LOT WAS
CAUSING A VARIETY OF "QUESTIONABLE CONSEQUENCES," SUCH AS "GIVE-UPS"
AND THE PROVIDING OF SPECIAL SERVICES FOR CERTAIN LARGE, USUALLY
INSTITUTIONAL, CUSTOMERS.  THESE ATTEMPTS INDIRECTLY TO ACHIEVE RATE
ALTERATIONS MADE MORE DIFFICULT THE ADMINISTRATION OF THE RATE
STRUCTURE AND CLOUDED THE COST DATA USED AS THE BASIS FOR DETERMINATION
OF RATES.  THESE EFFECTS WERE BELIEVED BY THE SEC TO NECESSITATE A
COMPLETE STUDY OF THE STRUCTURE.  MOREOVER, THE SEC CONCLUDED THAT
METHODS FOR DETERMINING THE REASONABLENESS OF RATES WERE IN NEED OF
OVERHAUL.  NOT ONLY WAS THERE A NEED FOR MORE COMPLETE INFORMATION
ABOUT THE ECONOMICS OF THE SECURITIES BUSINESS AND COMMISSION RATES IN
PARTICULAR, BUT ALSO FOR A DETERMINATION AND ARTICULATION OF THE
CRITERIA IMPORTANT IN ARRIVING AT A REASONABLE RATE STRUCTURE.  HENCE,
WHILE THE STUDY DID NOT PRODUCE ANY MAJOR IMMEDIATE CHANGES IN
COMMISSION RATE STRUCTURE OR LEVELS, IT DID CONSTITUTE A CAREFUL
ARTICULATION OF THE PROBLEMS IN THE STRUCTURE AND OF THE NEED FOR
FURTHER STUDIES THAT WOULD BE ESSENTIAL AS A BASIS FOR FUTURE CHANGES. 

MEANWHILE, THE NYSE BEGAN AN INVESTIGATION OF ITS OWN INTO THE
PARTICULAR ASPECT OF VOLUME DISCOUNTS FROM THE FIXED COMMISSION RATES. 
APP. A219 - A220.  THIS STUDY DETERMINED THAT A VOLUME DISCOUNT AND
VARIOUS OTHER CHANGES WERE NEEDED, AND SO RECOMMENDED TO THE SEC.  THE
COMMISSION RESPONDED IN BASIC AGREEMENT.  LETTER DATED DEC. 22, 1965,
FROM SEC CHAIRMAN COHEN TO NYSE PRESIDENT FUNSTON, APP. A249.  THE NYSE
STUDY CONTINUED OVER THE NEXT FEW YEARS AND FINAL CONCLUSIONS WERE
PRESENTED TO THE SEC IN EARLY 1968.  ID., AT A253.  /7/ 

IN 1968, THE SEC, WHILE CONTINUING THE STUDY STARTED EARLIER IN THE
DECADE, BEGAN TO SUBMIT A SERIES OF SPECIFIC PROPOSALS FOR CHANGE AND
TO REQUIRE THEIR IMPLEMENTATION BY THE EXCHANGES.  THROUGH ITS EXCHANGE
ACT RELEASE NO. 8324, MAY 28, 1968, APP. A286, THE SEC REQUESTED THE
NYSE TO REVISE ITS COMMISSION RATE SCHEDULE, INCUDING A REDUCTION OF
RATES FOR ORDERS FOR ROUND LOTS IN EXCESS OF 400 SHARES OR,
ALTERNATIVELY, THE ELIMINATION OF MINIMUM RATE REQUIREMENTS FOR ORDERS
IN EXCESS OF $50,000.  THESE CHANGES WERE VIEWED BY THE SEC AS INTERIM
MEASURES, PENDING FURTHER CONSIDERATION "IN THE CONTEXT OF THE
COMMISSION'S RESPONSIBILITIES TO CONSIDER THE NATIONAL POLICIES
EMBODIED BOTH IN THE SECURITIES LAWS AND IN THE ANTITRUST LAWS." 
LETTER OF MAY 28, 1968, FROM SEC CHAIRMAN COHEN TO NYSE PRESIDENT
HAACK, APP. A285.  IN RESPONSE TO THESE COMMUNICATIONS, THE NYSE (AND
AMEX) EVENTUALLY ADOPTED A VOLUME DISCOUNT FOR ORDERS EXCEEDING 1,000
SHARES, AS WELL AS OTHER ALTERATIONS IN RATES, ALL APPROVED BY THE SEC.
SEE, E.G., LETTER OF AUG. 30, 1968, FROM CHAIRMAN COHEN TO PRESIDENT
HAACK, APP. A310; MEMORANDUM DATED SEPT. 20, 1968, AMEX SUBCOMMITTEE ON
COMMISSION STRUCTURE, APP. A104. 

MEMBERS OF THE SECURITIES EXCHANGES FACED SUBSTANTIAL DECLINES IN
PROFITS IN THE LATE 1960'S AND EARLY 1970.  THESE WERE ATTRIBUTED BY
THE NYSE TO BE DUE, AT LEAST IN PART, TO THE FACT THAT GENERAL
COMMISSION RATES HAD NOT BEEN INCREASED SINCE 1958.  STATEMENT OF FEB.
13, 1970, BY PRESIDENT HAACK TO SEC, APP. A313.  THE NYSE DETERMINED
THAT A SERVICE CHARGE OF AT LEAST THE LESSER OF $15 OR 50% OF THE
REQUIRED MINIMUM COMMISSION ON ORDERS OF FEWER THAN 1,000 SHARES SHOULD
BE IMPOSED AS AN INTERIM MEASURE TO RESTORE FINANCIAL HEALTH BY
BRINGING RATES IN LINE WITH COSTS.  NYSE PROPOSED RULE 383, APP. A331. 
SEE ALSO LETTER DATED MAR. 19, 1970, FROM PRESIDENT HAACK TO MEMBERS OF
THE NYSE, APP. A327.  THIS PROPOSAL, SUBMITTED TO THE SEC PURSUANT TO
ITS RULE 17A-8, WAS PERMITTED BY THE SEC TO BE PLACED INTO OPERATION ON
A 90-DAY INTERIM BASIS.  LETTER DATED APR. 2, 1970, FROM SEC CHAIRMAN
BUDGE TO PRESIDENT HAACK, APP. A333.  CONTUNUATION OF THE INTERIM
MEASURE WAS THEREAFTER PERMITTED PENDING FURTHER RATE STRUCTURE
HEARINGS UNDERTAKEN BY THE SEC.  SEC EXCHANGE ACT RELEASE NO. 8923,
JULY 2, 1970, APP. A336.  THE INTERIM RATES REMAINED IN EFFECT UNTIL
THE RATE STRUCTURE CHANGE IN MARCH 1972. 

IN 1971 THE SEC CONCLUDED ITS HEARINGS BEGUN IN 1968.  FINDING THAT
"MINIMUM COMMISSIONS ON INSTITUTIONAL SIZE ORDERS ARE NEITHER NECESSARY
NOR APPROPRIATE," THE SEC ANNOUNCED THAT IT WOULD NOT OBJECT TO
COMPETITIVE RATES ON PORTIONS OF ORDERS ABOVE A STATED LEVEL.  LETTER
OF FEB. 3, 1971, FROM SEC COMMISSIONER SMITH TO PRESIDENT HAACK, APP.
A353.  SEE ALSO SEC EXCHANGE ACT RELEASE NO. 9007, OCT. 22, 1970, APP.
A348.  ALTHOUGH AT FIRST SUPPORTING A $100,000 ORDER AS THE CUTOFF
BELOW WHICH FIXED RATES WOULD BE ALLOWED, IBID., THE SEC LATER DECIDED
TO PERMIT USE OF $500,000 AS THE BREAKPOINT.  AFTER A YEAR'S USE OF
THIS FIGURE, THE SEC REQUIRED THE EXCHANGES TO REDUCE THE CUTOFF POINT
TO $300,000 IN APRIL 1972.  STATEMENT OF THE SEC ON THE FUTURE
STRUCTURE OF THE SECURITIES MARKETS, FEB. 2, 1972, APP. A369, A387,
A388 (POLICY STUDY). 

THE 1972 POLICY STUDY EMPHASIZED THE PROBLEMS OF THE SECURITIES
MARKETS, AND ATTRIBUTED AS A MAJOR CAUSE OF THOSE PROBLEMS THE
PREVAILING COMMISSION RATE STRUCTURE.  THE POLICY STUDY NOTED: 

"OUR CONCERN WITH THE FIXED MINIMUM COMMISSION...IS NOT ONLY WITH
THE LEVEL OF THE RATE STRUCTURE BUT WITH ITS SIDE EFFECTS AS WELL.  OF
THESE, PERHAPS THE MOST IMPORTANT ARE THE FOLLOWING: 

     "(A) DISPERSION OF TRADING IN LISTED SECURITIES. 

     "(B) RECIPROCAL PRACTICES OF VARIOUS KINDS. 

     "(C) INCREASING PRESSURE FOR EXCHANGE MEMBERSHIP BY
INSTITUTIONS."  ID., AT A385.  SINCE COMMISSION RATES HAD BEEN FIXED
FOR A LONG PERIOD OF TIME, HOWEVER, AND SINCE IT WAS POSSIBLE THAT
REVENUE WOULD DECLINE IF HASTY CHANGES WERE MADE, THE SEC BELIEVED THAT
THERE SHOULD BE NO RUSH TO COMPETITION SHOULD BE GAUGED ON A STEP-BY
STEP BASIS, AND CHANGES IMPOSE COMPETITIVE RATES.  RATHER, THE EFFECT
OF SWITCHING TO SHOULD BE MADE "AT A MEASURED, DELIBERATE PACE."  ID.,
AT A387.  THE RESULT OF THE INTRODUCTION OF COMPETITIVE RATES FOR
ORDERS EXCEEDING $500,000 WAS FOUND TO BE A SUBSTANTIAL REDUCTION IN
COMMISSION, WITH THE RATE DEPENDING ON THE SIZE OF THE ORDER.  IN VIEW
OF THIS RESULT, THE SEC DETERMINED TO INSTITUTE COMPETITION IN THE
$300,000 - $500,000 RANGE AS WELL. 

FURTHER REDUCTION FOLLOWED RELATIVELY QUICKLY.  BY MARCH 29, 1973,
THE SEC WAS CONSIDERING REQUIRING THE REDUCTION OF THE BREAKPOINT ON
COMPETITIVE RATES TO ORDERS IN EXCESS OF $100,000.  SEC POLICY
STATEMENT ON THE STRUCTURE OF A CENTRAL MARKET SYSTEM 3.  IN JUNE, THE
SEC BEGAN HEARINGS ON THE RATE SCHEDULES, STIMULATED IN PART BY A
REQUEST BY THE NYSE TO PERMIT AN INCREASE OF 15% OF THE CURRENT RATE ON
ALL ORDERS FROM $5,000 TO $300,000, AND TO PERMIT A MINIMUM COMMISSION
ON SMALL ORDERS (BELOW $5,000) AS WELL.  SEC EXCHANGE ACT RELEASE NO.
10206, JUNE 6, 1973, DOCUMENTARY APPENDIX TO BRIEF FOR SEC 24 (DOC.
APP.).  THREE MONTHS LATER, AFTER COMPLETION OF THE HEARINGS, THE SEC
DETERMINED THAT IT WOULD ALLOW THE INCREASES.  SEC EXCHANGE ACT RELEASE
NO. 10383, SEPT. 11, 1973, /8/ DOC. APP. 27.  THE SEC ALSO ANNOUNCED,
HOWEVER, THAT "(IT WILL ACT PROMPTLY TO TERMINATE THE FIXING OF
COMMISSION RATES BY STOCK EXCHANGES AFTER APRIL 30, 1975, IF THE STOCK
EXCHANGES DO NOT ADOPT RULE CHANGES ACHIEVING THAT RESULT."  ID., AT
28. 

ELABORATION OF THE SEC'S RATIONALE FOR THIS PHASING OUT OF FIXED
COMMISSION RATES WAS SOON FORTHCOMING.  IN DECEMBER 1973, SEC CHAIRMAN
GARRETT NOTED THAT THE TEMPORARY INCREASE IN FIXED RATES (THROUGH APRIL
1975) WAS PERMITTED BECAUSE OF THE INFLATION IN THE COST OF OPERATING
THE EXCHANGES, THE DECLINE IN THE VOLUME OF TRANSACTIONS ON THE
EXCHANGES, AND THE CONSEQUENTLY SEVERE FINANCIAL LOSSES FOR THE
MEMBERS.  SEC EXCHANGE ACT RELEASE NO. 10560, DEC 14, 1973, DOC. APP.
29.  INDEED, WITHOUT THE RATE INCREASE, "THE CONTINUED DETERIORATION IN
THE CAPITAL POSITIONS OF MANY MEMBER FIRMS WAS FORESEEABLE, WITH
SIGNIFICANT CAPITAL IMPAIRMENT AND INDIRECT, BUT CONSEQUENTIAL, HARM TO
INVESTORS THE LIKELY RESULT."  ID., AT 36 THE RATE INCREASE ALSO WOULD
FORESTALL THE POSSIBILITY THAT THE INDUSTRY WOULD BE IMPAIRED DURING
TRANSITION TO COMPETITIVE RATES AND OTHER REQUIREMENTS.  THIS VIEW
CONFORMED TO THE SUGGESTION OF SENATOR WILLIAMS, CHAIRMAN OF THE
SUBCOMMITTEE ON SECURITIES OF THE SENATE COMMITTEE ON BANKING, HOUSING
AND URBAN AFFAIRS.  SEE STATEMENT DATED JULY 27, 1973, OF SENATOR
WILLIAMS SUBMITTED TO THE SEC, CITED IN EXCHANGE ACT RELEASE NO. 10560
N. 12, DOC. APP. 37.  ALTHOUGH NOT PURPORTING TO ELUCIDATE FULLY ITS
REASONS FOR ABOLISHING FIXED RATES, THE SEC DID SUGGEST SEVERAL
CONSIDERATIONS BASIC TO ITS DECISION:  THE HETEROGENEOUS NATURE OF THE
BROKERAGE INDUSTRY; THE DESIRABILITY OF INSURING TRADING ON, RATHER
THAN OFF, THE EXCHANGES; DOUBT THAT SMALL INVESTORS ARE SUBSIDIZED BY
LARGE INSTITUTIONAL INVESTORS UNDER THE FIXED RATE SYSTEM; AND DOUBT
THAT SMALL FIRMS WOULD BE FORCED OUT OF BUSINESS IF COMPETITIVE RATES
WERE REQUIRED. 

IN RESPONSE TO A REQUEST BY THE NYSE, THE SEC PERMITTED AMENDMENT TO
ALLOW COMPETITIVE RATES ON NONMEMBER ORDERS BELOW $2,000.  SEC EXCHANGE
ACT RELEASE NO. 10670, MAR. 7, 1974, DOC. APP. 42.  HEARINGS ON
INTRAMEMBER COMMISSION RATES WERE ANNOUNCED IN APRIL 1974.  SEC
EXCHANGE ACT RELEASE NO. 10751, APR. 23, 1974, DOC. APP. 45.  THE SEC
CONCLUDED THAT INTRAMEMBER RATES SHOULD NOT BE FIXED BEYOUND APRIL 30,
1975.  SEC EXCHANGE ACT RELEASE NO. 11019, SEPT. 19, 1974, DOC. APP.
60.  AT THIS TIME THE SEC STATED: 

"(IT PRESENTLY APPEARS TO THE COMMISSION THAT IT IS NECESSARY AND
APPROPRIATE (1) FOR THE PROTECTION OF INVESTORS, (2) TO INSURE FAIR
DEALING IN SECURITIES TRADED IN UPON NATIONAL SECURITIES EXCHANGES, AND
(3) TO INSURE THE FAIR ADMINISTRATION OF SUCH EXCHANGES, THAT THE RULES
AND PRACTICES OF SUCH EXCHANGES THAT REQUIRE, OR HAVE THE EFFECT OF
REQUIRING, EXCHANGE MEMBERS TO CHARGE ANY PERSON FIXED MINIMUM RATES
OF 

COMMISSION, SHOULD BE ELIMINATED." 

     ID., AT 63.  THE SEC FORMALLY REQUESTED THE EXCHANGES TO MAKE
THE APPROPRIATE CHANGES IN THEIR RULES.  WHEN NEGATIVE RESPONSES WERE
RECEIVED FROM THE NYSE AND OTHERS, THE SEC RELEASED FOR PUBLIC COMMENT
PROPOSED SECURITIES EXCHANGE ACT RULES 19B-3 AND 10B-22.  PROPOSED RULE
19B-3, APPLICABLE TO INTRAMEMBER AND NONMEMBER RATES EFFECTIVE MAY 1,
1975, WOULD PROHIBIT THE EXCHANGES FROM USING OR COMPELLING THEIR
MEMBERS TO USE FIXED RATES OF COMMISSION.  IT ALSO WOULD REQUIRE THE
EXCHANGES TO PROVIDE EXPLICITLY IN THEIR RULES THAT NOTHING THEREIN
REQUIRES OR PERMITS ARRANGEMENTS OR AGREEMENTS TO FIX RATES.  PROPOSED
RULE 10B-22 WOULD PROHIBIT AGREEMENTS WITH RESPECT TO THE FIXING OF
COMMISSION RATES BY BROKERS, DEALERS, OR MEMBERS OF THE EXCHANGES.  SEE
SEC EXCHANGE ACT RELEASE NO. 11073, OCT. 24, 1974, DOC. APP. 65. 

UPON THE CONCLUSION OF HEARINGS ON THE PROPOSED RULES, THE SEC
DETERMINED TO ADOPT RULE 19B-3, BUT NOT RULE 10B-22.  SEC EXCHANGE ACT
RELEASE NO. 11203, JAN. 23, 1975, DOC. APP. 109.  EFFECTIVE MAY 1,
1975, COMPETITIVE RATES WERE TO BE UTILIZED BY EXCHANGE MEMBERS IN
TRANSACTIONS OF ALL SIZES FOR PERSONS OTHER THAN MEMBERS OF THE
EXCHANGES.  EFFECTIVE MAY 1, 1976, COMPETITIVE RATES WERE TO BE
MANDATORY IN TRANSACTIONS FOR MEMBERS AS WELL, I.E., FLOOR BROKERAGE
RATES.  COMPETITION IN FLOOR BROKERAGE RATES WAS SO DEFERRED UNTIL 1976
IN ORDER TO PERMIT AN ORDERLY TRANSITION.  /9/ THE REQUIRED TRANSITION
TO COMPETITIVE RATES WAS BASED ON THE SEC'S CONCLUSION THAT
COMPETITION, RATHER THAN FIXED RATES, WOULD BE IN THE BEST INTERESTS OF
THE SECURITIES INDUSTRY AND MARKETS, AS WELL AS IN THE BEST INTERESTS
OF THE INVESTING PUBLIC AND THE NATIONAL ECONOMY.  IBID.  THIS
DETERMINATION WAS NOT BASED ON A SIMPLISTIC NOTION IN FAVOR OF
COMPETITION, BUT RATHER ON DEMONSTRATED DEFICIENCIES OF THE FIXED
COMMISSION RATE STRUCTURE.  SPECIFICALLY MENTIONED BY THE SEC WERE
FACTORS SUCH AS THE RIGIDITY AND DELAY INHERENT IN THE FIXED RATE
SYSTEM, THE POTENTIAL FOR DISTORTION, EVASION, AND CONFLICTS OF
INTEREST, AND FRAGMENTATION OF MARKETS CAUSED BY THE FIXED RATE
SYSTEM.  ACKNOWLEDGING THAT THE FIXED RATE SYSTEM PERHAPS WAS NOT ALL
BAD IN ALL PERIODS OF ITS USE, THE SEC EXPLICITLY DECLINED TO COMMIT
ITSELF TO PERMANENT ABOLITION OF FIXED RATES IN ALL CASES:  IN THE
FUTURE CIRCUMSTANCES MIGHT ARISE THAT WOULD INDICATE THAT REINSTITUTION
OF FIXED RATES IN CERTAIN AREAS WOULD BE APPROPRIATE. 

THE SEC DISMISSED THE ARGUMENTS AGAINST COMPETITIVE RATES THAT HAD
BEEN RAISED BY VARIOUS PROPONENTS OF THE STATUS QUO.  FIRST, THE SEC
DEEMED THE POSSIBILITY OF DESTRUCTIVE COMPETITION TO BE SLIM, BECAUSE
OF THE NATURE OF THE COST CURVE IN THE INDUSTRY.  /10/ SECOND, THERE
WAS SUBSTANTIAL DOUBT WHETHER MAINTENANCE OF FIXED RATES, IN FACT,
PROVIDED VARIOUS SUBSIDIES THAT WOULD BE BENEFICIAL TO THE OPERATION OF
THE SECURITIES MARKETS.  FOR EXAMPLE, IT WAS UNLIKELY THAT SMALL
INVESTORS REAPED A SUBSIDY FROM HIGHER RATES CHARGED LARGER INVESTORS,
BECAUSE OF SEPARATION OF THE BUSINESS BETWEEN LARGE AND SMALL
INVESTORS.  NOR DID THE SEC BELIEVE THAT REGIONAL BROKERS WERE
SUBSTANTIALLY BENEFITED BY MAINTENANCE OF FIXED RATES.  THIRD, THE
POSSIBILITY OF AN EXODUS FROM MEMBERSHIP ON THE EXCHANGES WAS UNLIKELY,
AND SHOULD BE DEALT WITH ONLY AS IT OCCURRED.  IN ANY EVENT, INASMUCH
AS THE SEC ANTICIPATED THAT THERE WOULD BE DETAILED STUDIES OF THE
OPERATION OF THE COMPETITIVE RATES EFFECTUATED BY ITS ORDERS, ANY
PROBLEMS THAT AROSE COULD BE EFFECTIVELY RESOLVED UPON FURTHER
CONSIDERATION.     DURING THIS PERIOD OF CONCENTRATED STUDY AND ACTION
BY THE SEC, LASTING MORE THAN A DECADE, VARIOUS CONGRESSIONAL
COMMITTEES UNDERTOOK THEIR OWN CONSIDERATION OF THE MATTER OF
COMMISSION RATES.  EARLY IN 1972, THE SENATE SUBCOMMITTEE ON SECURITIES
CONCLUDED THAT FIXED COMMISSION RATES MUST BE ELIMINATED ON
INSTITUTIONALSIZE TRANSACTIONS, AND THAT LOWER FEES SHOULD BE PERMITTED
FOR SMALL TRANSACTIONS WITH "UNBUNDLED" SERVICES THAN FOR THOSE HAVING
THE FULL RANGE OF BROKERAGE SERVICES.  SENATE COMMITTEE ON BANKING,
HOUSING AND URBAN AFFAIRS, 92D CONG., 2D SESS., SECURITIES INDUSTRY
STUDY (FOR THE PERIOD ENDED FEB. 4, 1972), 4 (1972) (CONTAINING A
REPORT OF THE SUBCOMMITTEE ON SECURITIES).  THE SUBCOMMITTEE OBJECTED
PARTICULARLY TO THE FAILURE OF THE FIXED RATE SYSTEM TO PRODUCE "FAIR
AND ECONOMIC" RATES, ID., AT 59, AND TO DISTORTION IN THE RATE
STRUCTURE IN FAVOR OF THE INSTITUTIONALLY ORIENTED FIRMS. 

THE SUBCOMMITTEE WAS PERTURBED AT THE SEC'S ACTIONS REGARDING FIXED
COMMISSION RATES FOR SEVERAL REASONS.  FIRST, THE SUBCOMMITTEE NOTED
THAT IN LITIGATION THE SEC HAD TAKEN THE POSITION THAT IT HAD NOT
APPROVED NYSE RATE CHANGES IN 1971, BUT HAD MERELY FAILED TO OBJECT TO
THE INTRODUCTION OF THE NEW RATES, ID., AT 58, REFERRING TO THE SEC
POSITION IN INDEPENDENT INVESTOR PROTECTIVE LEAGUE V. SEC (SDNY NO. 71
1924), DISMISSED WITHOUT OPINION (CA2 1971).  THIS POSTURE PRECLUDED
REVIEW OF THE SEC ACTION IN THE COURT OF APPEALS.  /11/ SECOND, THE
SUBCOMMITTEE WAS DISPLEASED WITH THE LENGTH OF TIME THE SEC TOOK IN
ARRIVING AT ITS DECISIONS REGARDING COMMISSION RATE STRUCTURE AND
LEVEL.  THIRD, THE SUBCOMMITTEE FEARED THAT STATEMENTS OF THE SEC
LACKED CLARITY AND PERPETUATED UNCERTAINTY AS TO THE STATUS OF FIXED
RATES ON TRANSACTIONS EXCEEDING $100,000.  THEREFORE, THE SUBCOMMITTEE
REPORT STRESSED: 

"(IT IS ESSENTIAL THAT FIXED COMMISSION RATES BE PHASED OUT IN AN
ORDERLY AND SYSTEMATIC MANNER, AND THAT A DATE CERTAIN BE SET PROMPTLY
FOR ELIMINATION OF FIXED COMMISSIONS ON INSTITUTIONAL-SIZE
TRANSACTIONS, WHICH HAVE RESULTED IN THE MOST SERIOUS DISTORTIONS. 
BASED ON THE SEC'S CONCLUSIONS AND ON TESTIMONY SUBMITTED TO THE SEC
AND TO THIS SUBCOMMITTEE, THIS COULD BEST BE ACHIEVED BY ELIMINATING
FIXED RATES ON ORDERS IN EXCESS OF $100,000."  ID., AT 60. 

THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, IN A REPORT
ISSUED ONLY SIX MONTHS AFTER THE SENATE REPORT, SUPRA, CONCLUDED THAT
FIXED RATES OF COMMISSION WERE NOT IN THE PUBLIC INTEREST AND SHOULD BE
REPLACED BY COMPETITIVELY DETERMINED RATES FOR TRANSACTIONS OF ALL
SIZES.  SUCH ACTION SHOULD OCCUR "WITHOUT EXCESSIVE DELAY."  H.R. REP.
NO. 92 - 1519, PP. XIV, 141, 144 - 145, 146 (1972).  ALTHOUGH PRODDING
THE SEC TO TAKE QUICK MEASURES TO INTRODUCE COMPETITIVE RATES FOR
TRANSACTIONS OF ALL SIZES, THE HOUSE COMMITTEE DETERMINED TO DEFER
ENACTING LEGISLATION SO LONG AS REASONABLE PROGRESS WAS BEING MADE. 
THESE CONCLUSIONS RESULTED FROM A DETAILED STUDY, BY THE SUBCOMMITTEE,
OF ASSERTED COSTS AND BENEFITS OF COMPETITIVE VERSUS FIXED RATES, AND
REFLECTED INFORMATION GAINED THROUGH LENGTHY HEARINGS.  ID., AT 131 -
146, AND RELATED STUDY OF THE SECURITIES INDUSTRY, HEARINGS BEFORE THE
SUBCOMMITTEE ON COMMERCE AND FINANCE OF THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, 92D CONG., 1ST AND 2D SESS., SERIALS
92 - 37 TO 92 - 37H (1971 - 1972).  SIMILARLY, AFTER LENGTHY ANALYSIS,
THE SENATE SUBCOMMITTEE ON SECURITIES CONCLUDED BOTH THAT COMPETITIVE
RATES MUST BE INTRODUCED AT ALL TRANSACTION LEVELS, AND THAT
LEGISLATION WAS NOT REQUIRED AT THAT TIME IN VIEW OF THE PROGRESS MADE
BY THE SEC.  SECURITIES INDUSTRY STUDY REPORT OF THE SUBCOMMITTEE ON
SECURITIES OF THE SENATE COMMITTEE ON BANKING, HOUSING AND URBAN
AFFAIRS, S. DOC. NO. 93 - 13, PP. 5 - 7, 43 - 63 (1973), AND HEARINGS
ON S. 3169 BEFORE THE SUBCOMMITTEE ON SECURITIES OF THE SENATE
COMMITTEE ON BANKING, HOUSING AND URBAN AFFAIRS, 92D CONG., 2D SESS.
(1972). 

IN 1975 BOTH HOUSES OF CONGRESS DID IN FACT ENACT LEGISLATION
DEALING DIRECTLY WITH COMMISSION RATES.  ALTHOUGH THE BILLS INITIALLY
PASSED BY EACH CHAMBER DIFFERED SOMEWHAT, THE CONFERENCE COMMITTEE
COMPROMISED THE DIFFERENCES.  COMPARE H.R. 4111, 6(P), AS DISCUSSED IN
H.R.REP.  NO. 94 - 123, PP. 51 - 53, 67 - 68 (1975), WITH S. 249, 6(E),
DISCUSSED IN S. REP. NO. 94 - 75, PP. 71 - 72, 98 (1975).  THE MEASURE,
AS SO COMPROMISED, WAS SIGNED BY THE PRESIDENT ON JUNE 4, 1975, 89
STAT. 97. 

THE NEW LEGISLATION AMENDS 19(B) OF THE SECURITIES EXCHANGE ACT TO
SUBSTITUTE FOR THE HERETOFORE EXISTING PROVISION A SCHEME FOR SEC
REVIEW OF PROPOSED RULES AND RULE CHANGES OF THE VARIOUS SELF
REGULATORY ORGANIZATIONS.  REFERENCE TO COMMISSION RATES IS NOW FOUND
IN THE NEWLY AMENDED 6(E), GENERALLY PROVIDING THAT AFTER THE DATE OF
ENACTMENT "NO NATIONAL SECURITIES EXCHANGE MAY IMPOSE ANY SCHEDULE OR
FIX RATES OF COMMISSIONS, ALLOWANCES, DISCOUNTS, OR OTHER FEES TO BE
CHARGED BY ITS MEMBERS."  89 STAT. 107.  AN EXCEPTION IS MADE FOR FLOOR
BROKERAGE RATES WHICH MAY BE FIXED BY THE EXCHANGES UNTIL MAY 1, 1976. 
FURTHER EXCEPTIONS FROM THE BAN AGAINST FIXED COMMISSIONS ARE PROVIDED
IF APPROVED BY THE SEC AFTER CERTAIN FINDINGS:  PRIOR TO NOVEMBER 1,
1976, THE COMMISSION MAY ALLOW THE EXCHANGES TO FIX COMMISSIONS IF IT
FINDS THIS TO BE "IN THE PUBLIC INTEREST," 6(E)(1)(A); AFTER NOVEMBER
1,1976, THE EXCHANGES MAY BE PERMITTED BY THE SEC TO FIX RATES OF
COMMISSION IF THE SEC FINDS (1) THE RATES ARE REASONABLE IN RELATION TO
COSTS OF SERVICE (TO BE DETERMINED PURSUANT TO STANDARDS OF
REASONABLENESS PUBLISHED BY THE SEC), AND (2) IF THE RATES "DO NOT
IMPOSE ANY BURDEN ON COMPETITION NOT NECESSARY OR APPROPRIATE IN
FURTHERANCE OF THE PURPOSES OF THIS TITLE, TAKING INTO CONSIDERATION
THE COMPETITIVE EFFECTS OF PERMITTING SUCH SCHEDULE OR FIXED RATES
WEIGHED AGAINST THE COMPETITIVE EFFECTS OF OTHER LAWFUL ACTIONS WHICH
THE COMMISSION IS AUTHORIZED TO TAKE UNDER THIS TITLE." 
6(E)(1)(B)(II).  THE STATUTE SPECIFICALLY PROVIDES THAT EVEN IF THE SEC
DOES PERMIT THE FIXING OF RATES PURSUANT TO ONE OF THESE EXCEPTIONS,
THE SEC BY RULE MAY ABROGATE SUCH PRACTICE IF IT FINDS THAT THE FIXED
RATES "ARE NO LONGER REASONABLE, IN THE PUBLIC INTEREST, OR NECESSARY
TO ACCOMPLISH THE PURPOSES OF THIS TITLE."  6(E)(2). 

THE NEW SECTION ALSO PROVIDES A DETAILED PROCEDURE WHICH THE SEC
MUST FOLLOW IN ARRIVING AT ITS DECISION TO PERMIT FIXED COMMISSION
RATES.  6(E)(4).  THIS PROCEDURE WAS DESCRIBED IN THE CONFERENCE REPORT
AS "COMPARABLE TO THAT PROVIDED FOR IN SECTION 18 OF THE FEDERAL TRADE
COMMISSION ACT, 15 U.S.C. 58, WHICH IS MORE FORMAL THAN NORMAL NOTICE
AND COMMENT RULEMAKING UNDER SECTION 553 OF TITLE 5 U.S.C. BUT LESS
FORMAL THAN 'ON THE RECORD' PROCEDURE UNDER SECTIONS) 556 AND 557 OF
TITLE 5 U.S.C."  H.R. CONF. REP. NO. 94 - 229, P. 108 (1975).  FINALLY,
THE AMENDMENTS REQUIRE THE SEC TO FILE REGULARLY UNTIL DECEMBER 31,
1976, WITH BOTH BRANCHES OF CONGRESS, REPORTS CONCERNING THE EFFECT OF
COMPETITIVE RATES ON THE PUBLIC INTEREST, INVESTORS, AND THE SECURITIES
MARKETS.  6(E)(3).  /12/ 

AS OF MAY 1, 1975, PURSUANT TO ORDER OF THE SEC, FIXED COMMISSION
RATES WERE ELIMINATED AND COMPETITIVE RATES EFFECTUATED.  ALTOUGH IT IS
IS STILL TOO SOON TO DETERMINE THE TOTAL EFFECT OF THIS ALTERATION,
THERE HAVE BEEN NO REPORTS OF DISASTROUS EFFECTS FOR THE PUBLIC,
INVESTORS, THE INDUSTRY, OR THE MARKETS. 

THIS LENGTHY HISTORY CAN BE SUMMARIZED BRIEFLY:  IN ENACTING THE
SECURITIES EXCHANGE ACT OF 1934, THE CONGRESS GAVE CLEAR AUTHORITY TO
THE SEC TO SUPERVISE EXCHANGE SELF-REGULATION WITH RESPECT TO THE
"FIXING OF REASONABLE RATES OF COMMISSION."  UPON SEC DETERMINATION
THAT EXCHANGE RULES OR PRACTICES REGARDING COMMISSION RATES REQUIRED
CHANGE IN ORDER TO PROTECT INVESTORS OR TO INSURE FAIR DEALING, THE SEC
WAS AUTHORIZED TO REQUIRE ADOPTION OF SUCH CHANGES AS WERE DEEMED
NECESSARY OR APPORIATE.  THIS LEGISLATIVE PERMISSION FOR THE FIXING OF
COMMISSION RATES UNDER THE SUPERVISION OF THE SEC OCCURRED SEVEN YEARS
AFTER THIS COURT'S DECISION IN UNITED STATES V. TRENTON POTTERIES CO.,
273 U.S. 392 (1927), TO THE EFFECT THAT PRICE FIXING WAS A PER SE
VIOLATION OF THE SHERMAN ACT.  SINCE THE EXCHANGE ACT'S ADOPTION, AND
PRIMARILY IN THE LAST 15 YEARS, THE SEC HAS BEEN ENGAGED IN THOROUGH
REVIEW OF EXCHANGE COMMISSION RATE PRACTICES.  THE COMMITTEES OF THE
CONGRESS, WHILE RECENTLY EXPRESSING SOME DISSATISFACTION WITH THE
PROGRESS OF THE SEC IN IMPLEMENTING COMPETITIVE RATES, HAVE GENERALLY
BEEN CONTENT TO ALLOW THE SEC TO PROCEED WITHOUT NEW LEGISLATION.  AS
OF MAY 1, 1975, THE SEC, BY ORDER, HAS ABOLISHED FIXED RATES.  AND NEW
LEGISLATION, ENACTED INTO LAW JUNE 5, 1975, CODIFIES THIS RESULT,
ALTHOUGH STILL PERMITTING THE SEC SOME DISCRETION TO REIMPOSE FIXED
RATES IF WARRANTED. 

        IV 

THIS COURT HAS CONSIDERED THE ISSUE OF IMPLIED REPEAL OF THE
ANTITRUST LAWS IN THE CONTEXT OF A VARIETY OF REGULATORY SCHEMES AND
PROCEDURES.  CERTAIN AXIOMS OF CONSTRUCTION ARE NOW CLEARLY
ESTABLISHED.  REPEAL OF THE ANTITRUST LAWS BY IMPLICATION IS NOT
FAVORED AND NOT CASUALLY TO BE ALLOWED.  ONLY WHERE THERE IS A "PLAIN
REPUGNANCY BETWEEN THE ANTITRUST AND REGULATORY PROVISIONS" WILL REPEAL
BE IMPLIED.  UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321,
350 - 351 (1963).  SEE ALSO MERRILL LYNCH, PIERCE, FENNER & SMITH V.
WARE, 414 U.S., AT 126; HUGHES TOOL CO. V. TRANS WORLD AIRLINES, INC.,
409 U.S. 363, 385 - 389 (1973); CARNATION CO. V. PACIFIC CONFERENCE,
383 U.S. 213, 217 - 218 (1966); SILVER V. NEW YORK STOCK EXCHANGE, 373
U.S. AT 357 - 358; UNITED STATES V. BORDEN CO., 308 U.S. 188, 198 - 199
(1939).  SEE UNITED STATES V. NATIONAL ASSN.  OF SECURITIES DEALERS,
POST, AT 719 - 720, 729 - 730. 

THE STARTING POINT FOR OUR CONSIDERATION OF THE PARTICULAR ISSUE
PRESENTED BY THIS CASE, VIZ., WHETHER THE ANTITRUST LAWS ARE IMPLIEDLY
REPEALED OR REPLACED AS A RESULT OF THE STATUTORY PROVISIONS AND
ADMINISTRATIVE AND CONGRESSIONAL EXPERIENCE CONCERNING FIXED COMMISSION
RATES, OF COURSE, IS OUR DECISION IN SILVER.  THERE THE COURT
CONSIDERED THE RELATIONSHIP BETWEEN THE ANTITRUST LAWS AND THE
SECURITIES EXCHANGE ACT, AND DID SO SPECIFICALLY WITH RESPECT TO THE
ACTION OF AN EXCHANGE IN ORDERING ITS MEMBERS TO REMOVE PRIVATE DIRECT
TELEPHONE CONNECTIONS WITH THE OFFICES OF NONMEMBERS.  SUCH ACTION,
ABSENT ANY IMMUNITY DERIVED FROM THE REGULATORY LAWS, WOULD BE A PER SE
VIOLATION OF 1 OF THE SHERMAN ACT.  373 U.S., AT 347.  CONCLUDING THAT
THE PROPER APPROACH TO THE PROBLEM WAS TO RECONCILE THE OPERATION OF
THE ANTITRUST LAWS WITH A REGULATORY SCHEME, THE COURT ESTABLISHED A
"GUIDING PRINCIPLE" FOR THE ACHIEVEMENT OF THIS RECONCILIATION.  UNDER
THIS PRINCIPLE, "(REPEAL IS TO BE REGARDED AS IMPLIED ONLY IF NECESSARY
TO MAKE THE SECURITIES EXCHANGE ACT WORK, AND EVEN THEN ONLY TO THE
MINIMUM EXTENT NECESSARY."  ID., AT 357. 

IN SILVER, THE COURT CONCLUDED THAT THERE WAS NO IMPLIED REPEAL OF
THE ANTITRUST LAWS IN THAT FACTUAL CONTEXT BECAUSE THE EXCHANGE ACT NOT
PROVIDE FOR SEC JURISDICTION OR REVIEW OF PARTICULAR APPLICATIONS O
RULES ENACTED BY THE EXCHANGES.  IT NOTED: 

     "ALTHOUGH THE ACT GIVES TO THE SECURITIES AND EXCHANGE

  COMMISSION THE POWER TO REQUEST EXCHANGES TO MAKE CHANGES IN

  THEIR RULES, 19(B), 15 U.S.C. 78SB), AND IMPLIEDLY, THEREFORE, TO

  DISAPPROVE ANY RULES ADOPTED BY AN EXCHANGE, SEE ALSO 6(A)(4), 15

  U.S.C. 78FA)(4), IT DOES NOT GIVE THE COMMISSION JURISDICTION TO

  REVIEW PARTICULAR INSTANCES OF ENFORCEMENT OF EXCHANGE RULES." 

IBID.  AT THE TIME SILVER WAS DECIDED, BOTH THE RULES AND CONSTITUTION
OF THE NYSE PROVIDED THAT THE EXCHANGE COULD REQUIRE DISCONTINUANCE OF
WIRE SERVICE BETWEEN THE OFFICE OF A MEMBER AND A NONMEMBER AT ANY
TIME.  THERE WAS NO PROVISION FOR NOTICE OR STATEMENT OF REASONS. 
WHILE THESE RULES WERE PERMISSIBLE UNDER THE GENERAL POWER OF THE
EXCHANGES TO ADOPT RULES REGULATING RELATIONSHIPS BETWEEN MEMBERS AND
NONMEMBERS, AND THE SEC COULD DISAPPROVE THE RULES, THE SEC COULD NOT
FORBID OR REGULATE ANY PARTICULAR APPLICATION OF THE RULES.  HENCE, THE
REGULATORY AGENCY COULD NOT PREVENT APPLICATION OF THE RULES THAT WOULD
HAVE UNDESIRABLE ANTICOMPETITIVE EFFECTS; THERE WAS NO GOVERNMENTAL
OVERSIGHT OF THE EXCHANGE'S SELF-REGULATORY ACTION, AND NO METHOD OF
INSURING THAT SOME ATTENTION AT LEAST WAS GIVEN TO THE PUBLIC INTEREST
IN COMPETITION. 

THE COURT, THEREFORE, CONCLUDED THAT THE ABSENCE IN SILVER OF
REGULATORY SUPERVISION OVER THE APPLICATION OF THE EXCHANGE RULES
PREVENTED ANY CONFLICT ARISING BETWEEN THE REGULATORY SCHEME AND THE
ANTITRUST LAWS.  SEE ALSO GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439,
455 - 457 (1945), WHERE THE COURT FOUND NO CONFLICT BECAUSE THE
REGULATORY AGENCY (THE INTERSTATE COMMERCE COMMISSION) HAD NO
JURISDICTION OVER THE RATE-FIXING COMBINATION INVOLVED.  THE COURT IN
SILVER CAUTIONED, HOWEVER, THAT "(SHOULD REVIEW OF EXCHANGE SELF
REGULATION BE PROVIDED THROUGH A VEHICLE OTHER THAN THE ANTITRUST LAWS,
A DIFFERENT CASE AS TO ANTITRUST EXEMPTION WOULD BE PRESENTED."  373
U.S., AT 360.  IT AMPLIFIED THIS STATEMENT IN A FOOTNOTE: 

"WERE THERE COMMISSION JURISDICTION AND ENSUING JUDICIAL REVIEW FOR
SCRUTINY OF A PARTICULAR EXCHANGE RULING...A DIFFERENT CASE WOULD ARISE
CONCERNING EXEMPTION FROM THE OPERATION OF LAWS DESIGNED TO PREVENT
ANTICOMPETITIVE ACTIVITY, AN ISSUE WE DO NOT 

     DECIDE TODAY." 

     ID., AT 358 N. 12. 

IT IS PATENT THAT THE CASE PRESENTLY AT BAR IS, INDEED, THAT
"DIFFERENT CASE" TO WHICH THE COURT IN SILVER REFERRED.  IN CONTRAST TO
THE CIRCUMSTANCES OF SILVER, 19(B) GAVE THE SEC DIRECT REGULATORY OVER
EXCHANGE RULES AND PRACTICES WITH RESPECT TO "THE FIXING OF REASONABLE
RATES OF COMMISSION."  NOT ONLY WAS THE SEC AUTHORIZED TO DISAPPROVE
RULES AND PRACTICES CONCERNING COMMISSION RATES, BUT THE AGENCY ALSO
WAS PERMITTED TO REQUIRE ALTERATION OR SUPPLEMENTATION OF THE RULES AND
PRACTICES WHEN "NECESSARY OR APPROPRIATE FOR THE PROTECTION OF
INVESTORS OR TO INSURE FAIR DEALINGS IN SECURITIES TRADED IN UPON SUCH
EXCHANGE."  SINCE 1934 ALL RATE CHANGES HAVE BEEN BROUGHT TO THE
ATTENTION OF THE SEC, AND IT HAS TAKEN AN ACTIVE ROLE IN REVIEW OF
PROPOSED RATE CHANGES DURING THE LAST 15 YEARS.  THUS, RATHER THAN
PRESENTING A CASE OF SEC IMPOTENCE TO AFFECT APPLICATION OF EXCHANGE
RULES IN PARTICULAR CIRCUMSTANCES, THIS CASE INVOLVES EXPLICIT
STATUTORY AUTHORIZATION FOR SEC REVIEW OF ALL EXCHANGE RULES AND
PRACTICES DEALING WITH RATES OF COMMISSION AND RESULTANT SEC CONTINUING
ACTIVITY. 

HAVING DETERMINED THAT THIS CASE IS, IN FACT, THE "DIFFERENT CASE,"
WE MUST THEN MAKE INQUIRY AS TO THE PROPER RECONCILIATION OF THE
REGULATORY AND ANTITRUST STATUTES INVOLVED HERE, KEEPING IN MIND THE
PRINCIPLE THAT REPEAL OF THE ANTITRUST LAWS WILL BE "IMPLIED ONLY IF
NECESSARY TO MAKE THE SECURITIES EXCHANGE ACT WORK, AND EVEN THEN ONLY
TO THE MINIMUM EXTENT NECESSARY."  373 U.S., AT 357.  WE HOLD THAT
THESE REQUIREMENTS FOR IMPLIED REPEAL ARE CLEARLY SATISFIED HERE.  TO
PERMIT OPERATION OF THE ANTITRUST LAWS WITH RESPECT TO COMMISSION
RATES, AS URGED BYPETITIONER GORDON AND THE UNITED STATES AS AMICUS
CURIAE, WOULD UNDULY INTERFERE, IN OUR VIEW, WITH THE OPERATION OF THE
SECURITIES EXCHANGE ACT. 

AS A THRESHOLD MATTER, WE BELIEVE THAT THE DETERMINATION OF WHETHER
IMPLIED REPEAL OF THE ANTITRUST LAWS IS NECESSARY TO MAKE THE EXCHANGE
ACT PROVISIONS WORK IS A MATTER FOR THE COURTS, AND IN PARTICULAR, FOR
THE COURTS IN WHICH THE ANTITRUST CLAIMS ARE RAISED.  SILVER
EXEMPLIFIES THIS RESPONSIBILITY.  IN SOME CASES, HOWEVER, THE COURTS
MAY DEFER TO THE REGULATORY AGENCY INVOLVED, IN ORDER TO TAKE ADVANTAGE
OF ITS SPECIAL EXPERTISE.  THE DECISION IN THE END, HOWEVER, IS FOR THE
COURTS.  RICCI V. CHICAGO MERCANTILE EXCHANGE, 409 U.S. 289, 306 - 308
(1973). 

THE UNITED STATES, AS AMICUS CURIAE, SUGGESTS NOT ONLY THAT THE
IMMUNITY ISSUE IS ULTIMATELY FOR THE COURT TO DECIDE, BUT ALSO THAT THE
COURTS MAY REACH THE DECISION ONLY ON A FULL RECORD.  A SUMMARY RECORD,
AS COMPILED IN THIS CASE ON MOTIONS FOR SUMMARY JUDGMENT, THOUGH
VOLUMINOUS, IS SAID TO BE AN INADEQUATE BASIS FOR RESOLUTION OF THE
QUESTION.  WE DISAGREE.  IN THIS CASE NOTHING IS TO BE GAINED FROM ANY
FURTHER FACTUAL DEVELOPMENT THAT MIGHT BE POSSIBLE WITH A TRIAL ON
MERITS.  WE HAVE BEFORE US THE DETAILED EXPERIENCE OF THE SEC
REGULATORY ACTIVITIES, AND WE HAVE THE DEBATES IN THE CONGRESS
CULMINATING IN THE 1975 LEGISLATION.  THIS INFORMATION IS SUFFICIENT TO
PERMIT AN INFORMED DECISION AS TO THE EXISTENCE OF AN IMPLIED REPEAL. 

OUR DISPOSITION OF THIS CASE DIFFERS FROM THAT OF THE SEVENTH
CIRCUIT IN THILL SECURITIES CORP. V. NEW YORK STOCK EXCHANGE, 433 F. 2D
264(1970), CERT. DENIED, 401 U.S. 994 (1971), WHERE ANTITRUST IMMUNITY
FOR THE NYSE'S ANTIREBATE RULE WAS CLAIMED AND DENIED.  THE COURT OF
APPEALS REVERSED A GRANT OF SUMMARY JUDGMENT IN FAVOR OF THE NYSE AND
REMANDED FOR FURTHER EVIDENCE REGARDING THE EFFECTS OF THE ANTIREBATE
RULE ON COMPETITION, THE DEGREE OF ACTUAL REVIEW BY THE SEC, AND THE
EXTENT TO WHICH THE RULE WAS NECESSARY TO MAKE THE EXCHANGE ACT WORK. 
443 F.2D, AT 270.  THIS RELING IS PERSUASIVELY DISTINGUISHABLE ON ON AT
LEAST TWO GROUNDS FROM THE CASE AT BAR:  FIRST, THERE WAS NO EVIDENCE
PRESENTED REGARDING THE EXTENT OF SEC REVIEW OF THE CHALLENGED RULE. 
SECOND, THE ANTIREBATE PRACTICE DIFFERS FROM FIXED COMMISSION RATES IN
THAT (1) IT WAS NOT AMONG THE ITEMS SPECIFICALLY LISTED IN 19(B),
ALTHOUGH THE PRACTICE MIGHT REASONABLY BE THOUGHT TO BE RELATED TO THE
FIXING OF COMMISSION RATES, AND (2) IT DOES NOT NECESSARILY APPLY
UNIFORMLY, AND MAY BE APPLIED IN A DISCRIMINATORY MANNER.  WE DO NOT
BELIEVE IT NECESSARY, IN THE CIRCUMSTANCES OF THIS CASE, TO TAKE
FURTHER EVIDENCE CONCERNING THE COMPETITIVE EFFECTS OF FIXED RATES, OR
THE NECESSITY OF FIXED RATES AS A KEYSTONE OF THE OPERATION OF
EXCHANGES UNDER THE EXCHANGE ACT.  TO THE EXTENT THAT THE COURT OF
APPEALS IN THILL VIEWED THE QUESTION OF IMPLIED REPEAL AS A QUESTION OF
FACT, CONCERNING WHETHER THE PARTICULAR RULE ITSELF IS NECESSARY TO
MAKE THE ACT WORK, WE DECLINE TO FOLLOW THAT LEAD. 

WE ALSO REGARD OUR SPECIFIC DISPOSITION IN RICCI V. CHICAGO
MERCANTILE EXCHANGE, SUPRA, AS INAPPOSITE FOR THIS CASE.  IN RICCI, AN
ANTITRUST COMPLAINT CHARGED THAT THE CHICAGO MERCANTILE EXCHANGE
ARBITRARILY TRANSFERRED A MEMBERSHIP, IN VIOLATION OF BOTH THE
COMMODITY EXCHANGE ACT, 42 STAT. 998, AS AMENDED, 7 U.S.C. 1 ET. SEQ.,
AND THE EXCHANGE RULES.  WE HELD THAT CONSIDERATION OF THE ANTITRUST
CLAIMS SHOULD BE STAYED PENDING DETERMINATION BY THE COMMODITY EXCHANGE
COMMISSION AS TO WHETHER THE ACTIONS TAKEN WERE IN VIOLATION OF THE ACT
OR THE RULES.  ALTHOUGH WE NOTED THAT THE ACT DID NOT CONFER A GENERAL
ANTITRUST IMMUNITY, WE STATED THAT IF THE ACTIONS COMPLAINED OF WERE IN
CONFORMITY WITH THE ACT AND EXCHANGE RULES, A SUBSTANTIAL QUESTION
WOULD BE PRESENTED CONCERNING WHETHER THE ACTIONS WERE INSULATED FROM
ANTITRUST ATTACK.  IT IS MANIFEST, THEM, THAT RICCI INVOLVED A
DEFERENCE TO THE EXPERTISE OF A REGULATORY AGENCY IN DETERMINING IF THE
ACTIVITIES VIOLATED THE ACT OR RULES, AND DID NOT REPRESENT A DECISION
ON ANTITRUST IMMUNITY WHERE THE CONDUCT CHARGED WAS CLEARLY ENCOMPASSED
BY THE LEGISLATION OR RULES AND WHERE THERE WAS NO FACTUAL DISPUTE. 

WE BELIEVE THAT THE UNITED STATES, AS AMICUS, HAS CONFUSED TWO
QUESTIONS.  ON THE ONE HAND, THERE IS A FACTUAL QUESTION AS TO WHETHER
FIXED COMMISSION RATES ARE ACTUALLY NECESSARY TO THE EXCHANGES AS
CONTEMPLATED UNDER THE SECURITIES EXCHANGE ACT.  ON THE OTHER HAND,
THERE IS A LEGAL QUESTION AS TO WHETHER ALLOWANCE OF AN ANTITRUST SUIT
WOULD CONFLICT WITH THE OPERATION OF THE REGULATORY SCHEME WHICH
SPECIFICALLY AUTHORIZES THE SEC TO OVERSEE THE FIXING OF RATHER, WE ARE
CONCERNED WITH WHETHER ANTITRUST IMMUNITY, AS A MATTER OF LAW, MUST BE
IMPLIED IN ORDER TO PERMIT THE EXCHANGE ACT TO FUNCTION AS ENVISIONED
BY THE CONGRESS.  THE ISSUE OF THE WISDOM OF FIXED RATES BECOMES
RELEVANT ONLY WHEN IT IS DETERMINED THAT THERE IS NO ANTITRUST
IMMUNITY. 

THE UNITED STATES APPEARS TO SUGGEST THAT ONLY IF THERE IS A
PERVASIVE REGULATORY SCHEME, AS IN THE PUBLIC UTILITY AREA, CAN IT BE
CONCLUDED THAT THE REGULATORY SCHEME OUSTS THE ANTITRUST LAWS.  BRIEF
FOR UNITED STATES AS AMICUS CURIAE 16, 35.  IT IS TRUE THAT IN SOME
PRIOR CASES WE HAVE BEEN CONCERNED WITH THE QUESTION OF THE
PERVASIVENESS OF THE REGULATORY SCHEME AS A FACTOR IN DETERMINING
WHETHER THERE IS AN IMPLIED REPEAL OF THE ANTITRUST LAWS.  SEE, E.G.,
OTTER TAIL POWER CO. V. UNITED STATES, 410 U.S. 366, 373 - 375 (1973). 
IN THE PRESENT CASE, HOWEVER, RESPONDENTS DO NOT CLAIM THAT REPEAL
SHOULD BE IMPLIED BECAUSE OF A PERVASIVE REGULATORY SCHEME, BUT BECAUSE
OF THE SPECIFIC PROVISION OF 19(B)(9) AND THE REGULATORY ACTION
THEREUNDER.  BREIF FOR RESPONDENTS 35.  HENCE, WHETHER THE EXCHANGE ACT
AMOUNTS TO PERVASIVE LEGISLATION OUSTING THE ANTITRUST ACTS IS NOT A
QUESTION BEFORE US. 

WE AGREE WITH THE DISTRICT COURT AND THE COURT OF APPEALS, AND WITH
RESPONDENTS, THAT TO DENY ANTITRUST IMMUNITY WITH RESPECT TO COMMISSION
RATES WOULD BE TO SUBJECT THE EXCHANGES AND THEIR MEMBERS TO
CONFLICTING STANDARDS.  IT IS CLEAR FROM OUR DISCUSSION IN PART III,
SUPRA, THAT THE COMMISSION RATE PRACTICES OF THE EXCHANGES HAVE BEEN
SUBJECTED TO THE SCRUTINY AND APPROVAL OF THE SEC.  /13/ IF ANTITRUST
COURTS WERE TO IMPOSE DIFFERENT STANDARDS OR REQUIREMENTS, THE
EXCHANGES MIGHT FIND THEMSELVES UNABLE TO PROCEED WITHOUT VIOLATION OF
THE MANDATE OF THE COURTS OR OF THE SEC.  SUCH DIFFERENT STANDARDS ARE
LIKELY TO RESULT BECAUSE THE SOLE AIM OF ANTITRUST LEGISLATION IS TO
PROTECT COMPETITION, WHEREAS THE SEC MUST CONSIDER, IN ADDITION, THE
ECONOMIC HEALTH OF THE INVESTORS, THE EXCHANGES, AND THE SECURITIES
INDUSTRY.  /14/ GIVEN THE EXPERTISE OF THE SEC, THE CONFIDENCE THE
CONGRESS HAS PLACED IN THE AGENCY, AND THE ACTIVE ROLES THE SEC AND THE
CONGRESS HAVE TAKEN, PERMITTING COURTS THROUGHOUT THE COUNTRY TO
CONDUCT THEIR OWN ANTITRUST PROCEEDINGS WOULD CONFLICT WITH THE
REGULATORY SCHEME AUTHORIZED BY CONGRESS RATHER THAN SUPPLEMENT THAT
SCHEME.  /15/

IN PART III, SUPRA, WE OUTLINED THE LEGISLATIVE AND REGULATORY
AGENCY CONCERN WITH THE FIXING OF COMMISSION RATES.  BEGINNING WITH THE
ENACTMENT OF THE SECURITIES EXCHANGE ACT IN 1934, THE CONGRESS
PERSISTENTLY HAS PROVIDED FOR SEC AUTHORITY TO REGULATE COMMISSION
RATES.  ALTHOUGH SEC ACTION IN THE EARLY YEARS APPEARS TO HAVE BEEN
MINIMAL, IT IS CLEAR THAT SINCE 1959 THE SEC HAS BEEN ENGAGED IN DEEP
AND SERIOUS STUDY OF THE COMMISSION RATE PRACTICES OF THE EXCHANGES AND
OF THEIR MEMBERS, AND HAS REQUIRED MAJOR CHANGES IN THOSE PRACTICES. 
THE ULTIMATE RESULT OF THIS LONG-TERM STUDY HAS BEEN A REGULATORY
DECREE REQUIRING ABOLITION OF THE PRACTICE OF FIXED RATES OF COMMISSION
AS OF MAY 1, 1975, AND THE INSTITUTION OF FULL AND COMPLETE
COMPETITION.  SIGNIFICANTLY, IN THE NEW LEGISLATION ENACTED SUBSEQUENT
TO THE SEC'S ABOLITION OF COMMISSION RATE FIXING, THE CONGRESS HAS
INDICATED ITS CONTINUED APPROVAL OF SEC REVIEW OF THE COMMISSION RATE
STRUCTURE.  ALTHOUGH LEGISLATIVELY ENACTING THE SEC REGULATORY
PROVISION BANNING FIXED RATES, THE CONGRESS HAS EXPLICITLY PROVIDED
THAT THE SEC, UNDER CERTAIN CIRCUMSTANCES AND UPON THE MAKING OF
SPECIFIED FINDINGS, MAY ALLOW REINTRODUCTION OF FIXED RATES. 

IN SUM, THE STATUTORY PROVISION AUTHORIZING REGULATION, 19 (B)(9),
THE LONG REGULATORY PRACTICE, AND THE CONTINUED CONGRESSIONAL APPROVAL
ILLUSTRATED BY THE NEW LEGISLATION, POINT TO ONE, AND ONLY ONE,
CONCLUSION.  THE SECURITIES EXCHANGE ACT WAS INTENDED BY THE CONGRESS
TO LEAVE THE SUPERVISION OF THE FIXING OF REASONABLE RATES OF
COMMISSION TO THE SEC.  INTERPOSITION OF THE ANTITRUST LAWS, WHICH
WOULD BAR FIXED COMMISSION RATES AS PER SE VIOLATIONS OF THE SHERMAN
ACT, IN THE FACE OF POSITIVE SEC ACTION, WOULD PRECLUDE AND PREVENT THE
OPERATION OF THE EXCHANGE ACT AS INTENDED BY CONGRESS AND AS
EFFECTUATED THROUGH SEC REGULATORY ACTIVITY.  IMPLIED REPEAL OF THE
ANTITRUST LAWS IS, IN FACT, NECESSARY TO MAKE THE EXCHANGE ACT WORK AS
IT WAS INTENDED; FAILURE TO IMPLY REPEAL WOULD RENDER NUGATORY THE
LEGISLATIVE PROVISION FOR REGULATORY AGENCY SUPERVISION OF EXCHANGE
COMMISSION RATES. 

                                  AFFIRMED. 

/1/ THE MEMBER FIRMS ARE MERRILL LYNCH, PIERCE, FENNER & SMITH,
INC., AND BACHE & COMPANY, INC. 

/2/ PETITIONER URGED THAT THESE PRACTICES WERE IN VIOLATION OF THE
ROBINSON-PATMAN PRICE DISCRIMINATION ACT, 49 STAT. 1528, 15 U.S.C.
13A. 

/3/ THE RELIEF REQUESTED INCLUDED AN INJUNCTION PROHIBITING THE
IMPLEMENTATION OF CERTAIN NEGOTIATED COMMISSION RATES THAT WERE TO BE
PLACED IN EFFECT ON APRIL 5, 1971, OR, ALTERNATIVELY, REQUIRING THAT
NEGOTIATED RATES BE AVAILABLE FOR TRANSACTIONS OF ANY SIZE.  PETITIONER
ALSO REQUESTED TREBLE DAMAGES AMOUNTING TO $1.5 BILLION AND AN AWARD OF
ATTORNEYS' FEES OF $10 MILLION PLUS INTEREST AND COSTS. 

/4/ IN SHORT, THE DISTRICT COURT CONCLUDED THAT (1) SINCE PETITIONER
HAD NEVER APPLIED FOR EXCHANGE MEMBERSHIP, HE WAS NOT IN A POSITION TO
COMPLAIN THAT HE WAS ARBITRARILY PRECLUDED FROM MEMBERSHIP; (2) THE
EXCHANGE ACT'S 3(A)(3), 15 U.S.C. 78C (A)(3), BY ITS DEFINITION OF
"MEMBER," SPECIFICALLY LIMITED ACCESS OF NONMEMBERS TO THE EXCHANGES;
AND (3) THE ROBINSON-PATMAN ACT DID NOT APPLY TO SERVICES OR
INTANGIBLES, BUT ONLY TO COMMODITIES OR GOODS, AND THE LATTER WERE NOT
INVOLVED IN THIS LITIGATION. 

/5/ SEE, FOR EXAMPLE, THE COMMENTS OF THE REPORT IN REVIEWING
EVIDENCE ON FIXED COMMISSIONS: 

     "AS STATED BY MR. STURGIS, A FORMER PRESIDENT OF THE EXCHANGE,

  SINCE 1876 A GOVERNOR, AND NOW THE CHAIRMAN OF THE LAW

  COMMITTEE...: 

      "'THE VIOLATION OF THE COMMISSION LAW WE REGARD AS ONE OF THE

  MOST INFAMOUS CRIMES THAT A MAN CAN COMMIT AGAINST HIS FELLOW

  MEMBERS IN THE EXCHANGE, AND AS A GROSS BREACH OF GOOD FAITH AND

  WRONGDOING OF THE MOST SERIOUS NATURE, AND WE CONSIDER IT A CRIME

  THAT WE SHOULD PUNISH AS SEVERELY AS, IN THE JUDGMENT OF THE

  GOVERNING COMMITTEE, THE CONSTITUTION PERMITS. 

     "'Q....BUT THE BREACH OF THAT RULE (REFERRING TO THE RULE FOR

  UNIFORM COMMISSIONS) BY A BROKER YOU CONSIDER THE MOST HEINOUS

  CRIME HE CAN COMMIT? 

     "'A. IT IS ABSOLUTE BAD FAITH TO HIS FELLOW MEN.' 

     "THE RULE IS RIGIDLY ENFORCED BY SUSPENSION FROM ONE TO FIVE

  YEARS FOR A FIRST VIOLATION AND EXPULSION FOR A SECOND.... THE

  ACKNOWLEDGED OBJECT IS TO PREVENT COMPETITION AMONGST THE

  MEMBERS."  H.R.REP.  NO. 1593, 62D CONG., 3D SESS., 39 (1913). 

/6/ SINCE 1947, RATES GENERALLY HAVE BEEN BASED ON THE VALUE OF
STOCK IN A ROUND LOT, SEC REPORT OF SPECIAL STUDY OF SECURITIES
MARKETS, H.R.DOC.  NO. 95, 88TH CONG., 1ST SESS., PT. 5, P. 103
(1963).  THERE WAS NO VOLUME DISCOUNT AT THE TIME OF THIS SEC REPORT. 

/7/ THE BASIC NYSE PROPOSAL INCLUDED SOME VOLUME DISCOUNTS,
CONTINUATION OF LIMITED GIVE-UPS IF DIRECTED BY THE CUSTOMERS,
TERMINATION OF "REBATIVE" RECIPROCAL PRACTICES, DISCOUNTS FOR CERTAIN
NONMEMBERS, AND LIMITATION OF MEMBERSHIP AND DISCOUNTS TO "BONA FIDE
BROKER-DEALERS."  APP.  A255. 

/8/ THE INCREASES WERE PERMITTED THROUGH MARCH 31, 1974, WITHOUT
RESTRICTION.  SUCH INCREASES COULD CONTINUE FROM APRIL 1, 1974, THROUGH
APRIL 30, 1975, IF THE NYSE PERMITTED ITS MEMBERS TO CHARGE IN EXCESS
OF THE OLD RATE AND ALSO PERMITTED REDUCTIONS IN BROKERAGE SERVICES IN
RETURN FOR DISCOUNTS FROM THE RATE. 

/9/ IT WAS ALSO BELIEVED THAT MEMBERS OF THE EXCHANGES HAD NOT
EXPECTED THAT FLOOR BROKERAGE RATES WOULD BE INCLUDED AMONG THOSE
REQUIRED TO BE MADE COMPETITIVE, AND THAT EXTRA TIME FOR PLANNING AND
ADJUSTMENT WOULD BE NEEDED.  THE SEC NOTED, ADDITIONALLY, THAT THE
IMPACT OF FLOOR BROKERAGE RATES ON PUBLIC INVESTORS WAS SIGNIFICANTLY
LESS THAN THE IMPACT OF PUBLIC RATES, I.E., THE RATES ON TRANSACTIONS
FOR NONMEMBERS.  SEC EXCHANGE ACT RELEASE NO. 11203, JAN. 23, 1975,
DOC. APP. 109, 110. 

/10/ IN ORDER FOR DESTRUCTIVE COMPETITION TO OCCUR ON A LARGE SCALE,
FIXED COSTS MUST BE A HIGH PERCENTAGE OF TOTAL COSTS, AND THERE MUST BE
ECONOMIES OF SCALE IN A WIDE RANGE OF PRODUCTION.  NEITHER OF THESE
FACTORS WAS FOUND TO BE PRESENT IN THE BROKERAGE INDUSTRY.  SEC
EXCHANGE ACT RELEASE NO. 11203, JAN. 23, 1975, DOC. APP. 109, 138 -
139. 

/11/ THIS VIEW HAS BEEN REJECTED BY THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  INDEPENDENT BROKER
DEALERS' TRADE ASSN. V. SEC, 142 U.S. APP. D.C. 384, 442 F. 2D 132,
CERT. DENIED, 404 U.S. 828 (1971).  THE SEC APPEARS NO LONGER TO TAKE
THIS POSITION.  SEE BRIEF FOR THE SEC AS AMICUS CURIAE 38 - 39, N. 45. 

/12/ ONE FURTHER CHANGE IN THE 1975 AMENDMENTS SHOULD BE NOTED.  THE
1934 ACT DEFINED THE TERM "MEMBER" OF AN EXCHANGE AS ANY PERSON WHO,
AMONG OTHER THINGS, IS PERMITTED "TO MAKE USE OF THE FACILITIES OF AN
EXCHANGE FOR TRANSACTIONS THEREON . . . WITH THE PAYMENT OF A
COMMISSION OR FEE WHICH IS LESS THAN THAT CHARGED THE GENERAL PUBLIC." 
3(A)(3), 48 STAT. 883.  THIS IMPLIED A LIKELIHOOD OF FIXED RATES FOR
THE GENERAL PUBLIC, FOR OTHERWISE IT WOULD HAVE BEEN DIFFICULT TO
DETERMINE THAT A MEMBER, IN FACT, WAS GIVEN LOWER RATES.  THIS
DEFINITION WAS DELETED IN THE 1975 AMENDMENTS AND HAS BEEN REPLACED
WITH A GENERAL DEFINITION OF A MEMBER OF AN EXCHANGE.  3(A)(3) (A), 89
STAT. 97. 

/13/ WE BELIEVE THAT THIS DEGREE OF SERUTINY AND APPROVAL BY THE SEC
IS NOT SIGNIFICANTLY DIFFERENT FOR OUR PURPOSES HERE THAN AN
AFFIRMATIVE ORDER TO THE EXCHANGES TO FOLLOW FIXED RATES.  THE UNITED
STATES, AS AMICUS CURIAE, AGREES THAT IF THE SEC "WERE TO ORDER THE
EXCHANGES TO ADHERE TO A FIXED COMMISSION RATE SYSTEM OF SOME KIND, NO
ANTITRUST LIABILITY COULD ARISE."  BRIEF FOR UNITED STATES AS AMICUS
CURIAE 48.  WE CONCLUDE THAT IMMUNITY SHOULD NOT REST ON THE EXISTENCE
OF A FORMAL ORDER BY THE SEC, BUT THAT THE ACTIONS TAKEN BY THE SEC
PURSUANT TO 19(B)(9), AS OUTLINED IN PART III, SUPRA, ARE TO BE VIEWED
AS HAVING AN EFFECT EQUIVALENT TO THAT OF A FORMAL ORDER. 

/14/ COMPARE PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U.S.
296, 305 - 310 (1963), WITH UNITED STATES V. PHILADELPHIA NATIONAL
BANK, 374 U.S. 321, 350 - 352 (1963).  IN THE LATTER CASE TWO FACTORS
POINTED AGAINST ANTITRUST IMMUNITY:  (1) CONGRESSIONAL INTENT IN THE
BANK MERGER ACT NOT TO IMMUNIZE ACTIVITIES FROM ANTITRUST LEGISLATION,
AND (2) THE LACK OF CONFLICT BETWEEN THE BANK MERGER ACT AND CLAYTON
ACT STANDARDS.  ALSO, THERE WAS AN ABSENCE OF CONTINUING OVERSIGHT BY
THE COMPTROLLER GENERAL OF THE CURRENCY.  THESE FACTORS ARE NOT PRESENT
IN, AND ARE INAPPLICABLE TO, THE CASE AT BAR. 

/15/ WE NOTE, OF COURSE, THAT JUDICIAL REVIEW OF SEC ACTION IS
AVAILABLE UNDER THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 702 AND 704,
OR UNDER 25 OF THE SECURITIES EXCHANGE ACT, 15 U.S.C. 78Y.  SEE ALSO
INDEPENDENT BROKER-DEALERS' TRADE ASSN. V. SEC, 142 U.S.APP.D.C. 384,
442 F. 2D 132, CERT. DENIED, 404 U.S. 828 (1971). 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE COURT RELIES UPON THREE FACTORS--STATUTORY AUTHORIZATION FOR
REGULATION BY THE SECURITIES AND EXCHANGE COMMISSION (SEC), A LONG
HISTORY OF ACTUAL SEC OVERSIGHT AND APPROVAL, AND CONTINUED
CONGRESSIONAL AFFIRMATION OF THE SEC'S ROLE--IN HOLDING THAT THE SYSTEM
OF FIXED COMMISSION RATES EMPLOYED ON THE SECURITIES EXCHANGES IS
IMMUNE FROM ANTITRUST ATTACK.  WHILE I JOIN THAT OPINION, I WRITE
SEPARATELY TO EMPHASIZE THE SINGLE FACTOR WHICH, FOR ME, IS OF PRIME
IMPORTANCE. 

THE MERE EXISTENCE OF A STATUTORY POWER OF REVIEW BY THE SEC OVER
FIXED COMMISSION RATES CANNOT JUSTIFY IMMUNIZING THOSE RATES FROM
ANTITRUST CHALLENGES.  THE ANTITRUST LAWS ARE DESIGNED TO SAFEGUARD A
STRONG PUBLIC INTEREST IN FREE AND OPEN COMPETITION, AND IMMUNITY FROM
THOSE LAWS SHOULD PROPERLY BE IMPLIED ONLY WHEN SOME EQUIVALENT
MECHANISM IS FUNCTIONING TO PROTECT THAT PUBLIC INTEREST.  ONLY IF THE
SEC IS ACTIVELY AND AGGRESSIVELY EXERCISING ITS POWERS OF REVIEW AND
APPROVAL CAN WE BE SURE THAT FIXED COMMISSION RATES ARE BEING MONITORED
IN THE MANNER WHICH CONGRESS INTENDED.  CF. HUGHES TOOL CO. V. TRANS
WORLD AIRLINES, INC., 409 U.S. 363, 387 - 389 (1973). 

THE COURT REVIEWS AT LENGTH THE HISTORY OF THE SEC'S INVOLVEMENT
WITH FIXED COMMISSION RATES.  IN LIGHT OF THAT HISTORY, I AM SATISFIED
TO JOIN THE OPINION OF THE COURT AND AFFIRM THE JUDGMENT BELOW. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING. 

WHILE JOINING THE OPINION OF THE COURT, I ADD A BRIEF WORD.  THE
COURT HAS NEVER HELD, AND DOES NOT HOLD TODAY, THAT THE ANTITRUST LAWS
ARE INAPPLICABLE TO ANTICOMPETITIVE CONDUCT SIMPLY BECAUSE A FEDERAL
AGENCY HAS JURISDICTION OVER THE ACTIVITIES OF ONE OR MORE OF THE
DEFENDANTS.  AN IMPLIED REPEAL OF THE ANTITRUST LAWS MAY BE FOUND ONLY
IF THERE EXISTS A "PLAIN REPUGNANCY BETWEEN THE ANTITRUST AND
REGULATORY PROVISIONS."  UNITED STATES V. PHILADELPHIA NAT. BANK, 374
U.S. 321, 351. 

THE MERE EXISTENCE OF THE COMMISSION'S RESERVE POWER OF OVERSIGHT
WITH RESPECT TO RULES INITIALLY ADOPTED BY THE EXCHANGES, THEREFORE,
DOES NOT NECESSARILY IMMUNIZE THOSE RULES FROM ANTITRUST ATTACK. 
RATHER, "EXCHANGE SELF-REGULATION IS TO BE REGARDED AS JUSTIFIED IN
RESPONSE TO ANTITRUST CHARGES ONLY TO THE EXTENT NECESSARY TO PROTECT
THE ACHIEVEMENT OF THE AIMS OF THE SECURITIES EXCHANGE ACT."  SILVER V.
NEW YORK STOCK EXCHANGE, 373 U.S. 341, 316.  THE QUESTION PRESENT CASE,
THEREFORE, IS WHETHER EXCHANGE RULES FIXING CHANGE RULES FIXING MINIMUM
COMMISSION RATES ARE "NECESSARY TO MAKE THE SECURITIES EXCHANGE ACT
WORK."  ID., AT 357. 

AS THE COURT'S OPINION EXPLAINS, SEE ANTE, AT 663 - 667, WHEN
CONGRESS ENACTED THE SECURITIES EXCHANGE ACT OF 1934, IT WAS FULLY
AWARE OF THE WELL-ESTABLISHED EXCHANGE PRACTICE OF FIXING COMMISSION
RATES, WHICH HAD EXISTED CONTINUOUSLY SINCE 1792.  NEVERTHELESS,
CONGRESS CHOSE NOT TO PROHIBIT THAT PRACTICE.  INSTEAD, IN 19(B)(9) OF
THE 1934 ACT CONGRESS SPECIFICALLY EMPOWERED THE COMMISSION TO EXERCISE
DIRECT SUPERVISORY AUTHORITY OVER EXCHANGE RULES RESPECTING "THE FIXING
OF REASONABLE RATES OF COMMISSION."  CONGRESS THEREBY UNMISTAKABLY
DETERMINED THAT, UNTIL SUCH TIME AS THE COMMISSION RULED TO THE
CONTRARY, EXCHANGE RULES FIXING MINIMUM COMMISSION RATES WOULD FURTHER
THE POLICIES OF THE 1934 ACT.  ACCORDINGLY, ALTHOUGH THE ACT CONTAINS
NO EXPRESS EXEMPTION FROM THE ANTITRUST LAWS FOR EXCHANGE RULES
ESTABLISHING FIXED COMMISSION RATES, UNDER SILVER THAT PARTICULAR
INSTANCE OF EXCHANGE SELF-REGULATION IS IMMUNE FROM ANTITRUST ATTACK. 

I. WALTON BADER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS MAXIMILLIAN BADER. 

WILLIAM ELDRED JACKSON ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM
ON THE BRIEF WERE ISAAC SHAPIRO, MARK L. DAVIDSON, JOHN J. LOFLIN, JR.,
AND JAMES BRENDAN MAY. 

HOWARD E. SHAPIRO ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
BORK AND ASSISTANT ATTORNEY GENERAL KAUPER. 

LAWRENCE E. NERHEIM ARGUED THE CAUSE FOR THE SECURITIES AND EXCHANGE
COMMISSION AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF
WERE WALTER P. NORTH AND FREDERIC T. SPINDEL. 
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UNITED STATES V. NATIONAL ASSN. SECURITIES DEALERS, 422 U.S. 694 


       UNITED STATES V. NATIONAL ASSOCIATION OF SECURITIES DEALERS,

           INC., ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA

        NO. 73 - 1701.  ARGUED MARCH 17, 1975--DECIDED JUNE

        26, 1975; 374 F. SUPP. 95, AFFIRMED. 


    SECTION 22 (D) OF THE INVESTMENT COMPANY ACT OF 1940 PROVIDES

  THAT "NO DEALER SHALL SELL (MUTUAL-FUND SHARES) TO ANY PERSON

  EXCEPT A DEALER, A PRINCIPAL UNDERWRITER, OR THE ISSUER, EXCEPT

  AT A CURRENT PUBLIC OFFERING PRICE DESCRIBED IN THE PROSPECTUS." 

  SECTION 22 (F) AUTHORIZES MUTUAL FUNDS TO IMPOSE RESTRICTIONS ON

  THE NEGOTIABILITY AND TRANSFERABILITY OF SHARES, PROVIDED THEY

  CONFORM WITH THE FUND'S REGISTRATION STATEMENT AND DO NOT

  CONTRAVENE ANY RULES AND REGULATIONS THAT THE SECURITIES AND

  EXCHANGE COMMISSION (SEC) MAY PRESCRIBE IN THE INTERESTS OF THE

  HOLDERS OF ALL OF THE OUTSTANDING SECURITIES.  SECTION 2 (A)(6)

  DEFINES A "BROKER" AS A PERSON ENGAGED IN THE BUSINESS OF

  EFFECTING TRANSACTIONS IN SECURITIES FOR THE ACCOUNT OF OTHERS,

  AND 2(A)(11) DEFINES A "DEALER" AS A PERSON REGULARLY ENGAGED IN

  THE BUSINESS OF BUYING AND SELLING SECURITIES FOR HIS OWN

  ACCOUNT.  THE MALONEY ACT OF 1938 ( 15A OF THE SECURITIES

  EXCHANGE ACT OF 1934) SUPPLEMENTS THE SEC'S REGULATION OF

  OVER-THE-COUNTER MARKETS BY PROVIDING A SYSTEM OF COOPERATIVE

  SELF-REGULATION THROUGH VOLUNTARY ASSOCIATIONS OF BROKERS AND

  DEALERS.  THE GOVERNMENT BROUGHT THIS ACTION AGAINST APPELLEE

  NATIONAL ASSOCIATION OF SECURITIES DEALERS (NASD), CERTAIN MUTUAL

  FUNDS, MUTUAL-FUND UNDERWRITERS, AND BROKER-DEALERS, ALLEGING

  THAT APPELLEES, IN VIOLATION OF 1 OF THE SHERMAN ACT, COMBINED

  AND AGREED TO RESTRICT THE SALE AND FIX THE RESALE PRICES OF

  MUTUAL-FUND SHARES IN SECONDARY MARKET TRANSACTIONS BETWEEN

  DEALERS, FROM AN INVESTOR TO A DEALER, AND BETWEEN INVESTORS

  THROUGH BROKERED TRANSACTIONS, AND SOUGH TO ENJOIN SUCH

  AGREEMENTS.  COUNT I OF THE COMPLAINT CHARGED A HORIZONTAL

  COMBINATION AND CONSPIRACY AMONG NASD'S MEMBERS TO PREVENT THE

  GROWTH OF A SECONDARY DEALER MARKET IN THE PURCHASE AND SALE OF

  MUTUAL-FUND SHARES, THE GOVERNMENT CONTENDING THAT SUCH COUNT WAS

  NOT TO BE READ AS A DIRECT ATTACK ON NASD RULES, BUT ON NASD'S

 INTERPRETATIONS AND APPELLEES' EXTENSION OF THE RULES SO AS TO

  INCLUDE A SECONDARY MARKET.  COUNTS II - VIII ALLEGED VARIOUS

  VERTICAL RESTRICTIONS ON SECONDARY MARKET

ACTIVITIES.  THE DISTRICT COURT DISMISSED THE COMPLAINT ON

THE GROUNDS THAT 22 (D) AND (F), WHEN READ IN CONJUNCTION WITH THE
MALONEY ACT, AFFORDED

  ANTITRUCT IMMUNITY FROM ALL OF THE CHALLENGED PRATICES.  IT
FURTHER DETERMINED THAT, APART

  FROM THIS STATUTORY IMMUNITY, THE PERVASIVE REGULATORY SCHEME
ESTABLISHED BY THESE STATUTES

  CONFERRED AN IMPLIED IMMUNITY FROM ANTITRUCT SANCTION.  THE COURT
CONCLUDED THAT THE 22 (D)

  PRICE MAINTENANCE MANDATE FOR SALES BY "DEALERS" APPLIED TO
TRANSACTIONS IN WHICH A

  BROKER-DEALER ACTS AS STATUTORY "BROKER" RATHER THAN A STATUTORY
"DEALER," AND THUS THAT 22

  (D) GOVERNS TRANSACTIONS IN WHICH THE BROKER-DEALER ACTS AS AN
AGENT FOR AN INVESTOR AS WELL

  AS THOSE IN WHICH HE ACTS AS A PRINCIPAL SELLING SHARES FOR HIS
OWN ACCOUNT.  HELD: 

     1.  NEITHER THE LANGUAGE NOR LEGISLATIVE HISTORY OF 22 (D)

  JUSTIFIES EXTENDING THE SECTION'S PRICE MAINTENANCE MANDATE

  BEYOND ITS LITERAL TERMS TO ENCOMPASS TRANSACTIONS BY

  BROKER-DEALERS ACTING AS STATUTORY "BROKERS."  PP. 711 - 720. 

     (A) TO CONSTRUE 22 (D) TO COVER ALL BROKER-DEALER TRANSACTIONS

  WOULD DISPLACE THE ANTITRUST LAWS BY IMPLICATION AND ALSO WOULD

  IMPINGE ON THE SEC'S MORE FLEXIBLE AUTHORITY UNDER 22 (F). 

  IMPLIED ANTITRUST IMMUNITY CAN BE JUSTIFIED ONLY BY A CONVINCING

SHOWING OF CLEAR REPUGNANCY BETWEEN THE ANTITRUST LAWS AND THE

  REGULATORY SYSTEM, AND HERE NO SUCH SHOWING HAS BEEN MADE.  PP.

  719 - 720. 

     (B) SUCH AN EXPANSION OF 22 (D)'S COVERAGE WOULD SERVE NEITHER

  THIS COURT'S RESPONSIBILITY TO RECONCILE THE ANTITRUST AND

  REGULATORY STATUTES WHERE FEASIBLE NOR THE COURT'S OBLIGATION TO

  INTERPRET THE INVESTMENT COMPANY ACT IN A MANNER MOST CONDUCIVE

TO THE EFFECTUATION OF ITS GOALS.  P. 720. 

     2.  THE VERTICAL RESTRICTIONS SOUGHT TO BE ENJOINED IN COUNTS

  II-VIII ARE AMONG THE KINDS OF AGREEMENTS AUTHORIZED BY 22 (F),

  AND HENCE SUCH RESTRICTIONS ARE IMMUNE FROM LIABILITY UNDER THE

  SHERMAN ACT.  PP. 720 - 730. 

     (A) THE RESTRICTIONS ON TRANSFERABILITY AND NEGOTIABILITY

  CONTEMPLATED BY 22 (F) INCLUDE RESTRICTIONS ON THE DISTRIBUTION

SYSTEM FOR MUTUAL-FUND SHARES AS WELL AS LIMITATIONS ON THE FACE

  OF THE SHARES THEMSELVES.  TO INTERPRET THE SECTION AS COVERING

  ONLY THE LATTER WOULD DISSERVE THE BROAD REMEDIAL FUNCTION OF THE

  SECTION, WHICH, AS A COMPLEMENT TO 22 (D)'S PROTECTION AGAINST

  DISRUPTIVE PRICE COMPETITION CAUSED BY DEALERS'"BOOTLEG MARKET"

  TRADING OF MUTUAL-FUND SHARES, AUTHORIZES THE FUNDS AND THE SEC

  TO DEAL MORE FLEXIBLY WITH OTHER DETRIMENTAL TRADING PRACTICES BY

IMPOSING SEC-APPROVED

RESTRICTIONS ON TRANSFERABILITY AND NEGOTIABILITY. 

  PP.  722 - 725. 

     (B) TO CONTEND, AS THE GOVERNMENT DOES, THHAT THE SEC'S

  EXERCISE OF REGULATORY AUTHORITY HAS BEEN INSUFFICIENT TO GIVE

  RISE TO AN IMPLIED IMMUNITY FOR AGREEMENTS CONFORMING WITH 22 (F)

MISCONCEIVES THE STATUTE'S INTENDED OPERATION.  BY ITS TERMS 22

  (F) AUTHORIZES PROPERLY DISCLOSED RESTRICTIONS UNLESS THEY ARE

  INCONSISTENT WITH SEC RULES OR REGULATIONS AND THUS AUTHORIZES

  FUNDS TO IMPOSE TRANSFERABILITY OR NEGOTIABILITY RESTRICTIONS

  SUBJECT TO SEC DISAPPROVAL.  PP. 726 - 728. 

     (C) THE SEC'S AUTHORITY WOULD BE COMPROMISED IF THE AGREEMENTS

  CHALLENGED IN COUNTS II - VIII WERE DEEMED ACTIONABLE UNDER THE

  SHERMAN ACT.  THERE CAN BE NO RECONCILIATION OF THE SEC'S

  AUTHORITY UNDER 22 (F) TO PERMIT THESE AND SIMILAR RESTRICTIVE

  AGREEMENTS WITH THE SHERMAN ACT'S DECLARATION THAT THEY ARE

  ILLEGAL PER SE.  IN THIS INSTANCE THE ANTITRUST LAWS MUST GIVE

  WAY IF THE REGULATORY SCHEME ESTABLISHED BY THE INVESTMENT

  COMPANY ACT IS TO WORK.  PP.  729 - 730. 

     3.  THE ACTIVITIES CHARGED IN COUNT I ARE NEITHER REQUIRED BY

  22 (D) NOR AUTHORIZED UNDER 22 (F), AND THEREFORE CANNOT FIND

  ANTITRUST SHELTER THEREIN.  THE SEC'S EXERCISE OF R REGULATORY

AUTHORITY UNDER THE MALONEY AND INVESTMENT COMPANY ACTS IS

  SUFFICIENTLY PERVASIVE, HOWEVER, TO CONFER IMPLIED IMMUNITY FROM

  ANTITRUST LIABILITY FOR SUCH ACTIVITIES.  PP.  730 - 735. 

     POWELL, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER,
C.

  J., AND STEWART, BLACKMUN, AND REHNQUIST, JJ., JOINED.  WHITE,

  J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND

  MARSHALL, JJ., JOINED, POST, P. 735. 

OPINION OF THE COURT BY MR. JUSTICE POWELL, ANNOUNCED BY MR. JUSTICE
BLACKMUN. 

THIS APPEAL REQUIRES THE COURT TO DETERMINE THE EXTENT TO WHICH THE
REGULATORY AUTHORITY CONFERRED UPON THE SECURITIES AND EXCHANGE
COMMISSION BY THE MALONEY ACT, 52 STAT. 1070, AS AMENDED, 15 U.S.C. 780
- 3, AND THE INVESTMENT COMPANY ACT OF 1940, 54 STAT. 789, AS AMENDED,
15 U.S.C. 80A - 1 ET SEQ., DISPLACES THE STRONG ANTITRUST POLICY
EMBODIED IN 1 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C.
1.  AT ISSUE IS WHETHER CERTAIN SALES AND DISTRIBUTION PRACTICES
EMPLOYED IN MARKETING SECURITIES OF OPEN-END MANAGEMENT COMPANIES,
POPULARLY REFERRED TO AS "MUTUAL FUNDS," ARE IMMUNE FROM ANTITRUST
LIABILITY.  WE CONCLUDE THAT THEY ARE, AND ACCORDINGLY AFFIRM THE
JUDGMENT OF THE DISTRICT COURT. 

        I 

AN "INVESTMENT COMPANY" INVESTS IN THE SECURITIES OF OTHER
CORPORATIONS AND ISSUES SECURITIES OF ITS OWN /1/  SHARES IN AN
INVESTMENT COMPANY THUS REPRESENT PROPORTIONATE INTERESTS IN ITS
INVESTMENT PORTFOLIO, AND THEIR VALUE FLUCTUATES IN RELATION TO THE
CHANGES IN THE VALUE OF THE SECURITIES IT OWNS.  THE MOST COMMON FORM
OF INVESTMENT COMPANY, THE "OPEN END" COMPANY OR MUTUAL FUND, IS
REQUIRED BY LAW TO REDEEM ITS SECURITIES ON DEMAND AT A PRICE
APPROXIMATING THEIR PROPORTIONATE SHARE OF THE FUND'S NET ASSET VALUE
AT THE TIME OF REDEMPTION.  /2/ IN ORDER TO AVOID LIQUIDATION THROUGH
REDEMPTION, MUTUAL FUNDS CONTINUOUSLY ISSUE AND SELL NEW SHARES.  THESE
FEATURES--CONTINUOUS AND UNLIMITED DISTRIBUTION AND COMPULSORY
REDEMPTION--ARE, AS THE COURT RECENTLY RECOGNIZED, "UNIQUE
CHARACTERISTICS)" OF THIS FORM OF INVESTMENT.  UNITED STATES V.
CARTWRIGHT, 411 U.S. 546, 547 (1973). 

THE INITIAL DISTRIBUTION OF MUTUAL-FUND SHARES IS CONDUCTED BY A
PRINCIPAL UNDERWRITER, OFTEN AN AFFILIATE OF THE FUND, AND BY BROKER
DEALERS /3/ WHO CONTRACT WITH THAT UNDERWRITER TO SELL THE SECURITIES
TO THE PUBLIC.  THE SALES PRICE COMMONLY CONSISTS OF TWO COMPONENTS, A
SUM CALCULATED FROM THE NET ASSET VALUE OF THE FUND AT THE TIME OF
PURCHASE, AND A "LOAD," A SALES CHARGE REPRESENTING A FIXED PERCENTAGE
OF THE NET ASSET VALUE.  THE LOAD IS DIVIDED BETWEEN THE PRINCIPAL
UNDERWRITER AND THE BROKER-DEALERS, COMPENSATING THEM FOR THEIR SALES
EFFORTS.  /4/ 

THE DISTRIBUTION-REDEMPTION SYSTEM CONSTITUTES THE PRIMARY MARKET IN
MUTUAL-FUND SHARES, THE OPERATION OF WHICH IS NOT QUESTIONED IN THIS
LITIGATION.  THE PARTIES AGREE THAT 22 (D) OF THE INVESTMENT COMPANY
ACT REQUIRES BROKER-DEALERS TO MAINTAIN A UNIFORM PRICE IN SALES IN
THIS PRIMARY MARKET TO ALL PURCHASERS EXCEPT THE FUND, ITS
UNDERWRITERS, AND OTHER DEALERS.  AND IN VIEW OF THIS EXPRESS
REQUIREMENT NO QUESTION EXISTS THAT ANTITRUST IMMUNITY MUST BE AFFORDED
THESE SALES.  THIS CASE FOCUSES, RATHER, ON THE POTENTIAL ENACTMENT OF
THE INVESTMENT COMPANY ACT, LITTLE PRESENTLY REMAINS.  THE UNITED
STATES AGREES THAT THE ACT WAS DESIGNED TO RESTRICT MOST OF SECONDARY
MARKET TRADING, BUT NONETHELESS CONTENDS THAT CERTAIN INDUSTRY
PRACTICES HAVE EXTENDED THE STATUTORY LIMITATION BEYOND ITS PROPER
BOUNDARIES.  THE COMPLAINT IN THIS ACTION ALLEGES THAT THE DEFENDANTS,
APPELLEES HEREIN, COMBINED AND AGREED TO RESTRICT THE SALE AND FIX THE
RESALE PRICES OF MUTUAL-FUND SHARES IN SECONDARY MARKET TRANSACTIONS
BETWEEN DEALERS, FROM AN INVESTOR TO A DEALER, AND BETWEEN INVESTORS
THROUGH BROKERED TRANSACTIONS.  /5/ NAMED AS DEFENDANTS ARE THE
NATIONAL ASSOCIATION OF SECURITIES DEALERS (NASD), /6/ AND CERTAIN
MUTUAL FUNDS, /7/ MUTUAL-FUND UNDERWRITERS, /8/ AND SECURITIES BROKER
DEALERS.  /9/ 

THE UNITED STATES CHARGES THAT THESE AGREEMENTS VIOLATE 1 OF THE
SHERMAN ACT, 15 U.S.C. 1, /10/ AND PRAYS THAT THEY BE ENJOINED UNDER 4
OF THAT ACT. 

COUNT I CHARGES A HORIZONTAL COMBINATION AND CONSPIRACY AMONG THE
MEMBERS OF APPELLEE NASD TO PREVENT THE GROWTH OF A SECONDARY DEALER
MARKET IN THE PURCHASE AND SALE OF MUTUAL-FUND SHARES.  SEE N. 42,
INFRA.  COUNTS II-VIII, BY CONTRAST, ALLEGE VARIOUS VERTICAL
RESTRICTIONS ON SECONDARY MARKET ACTIVITIES.  IN COUNTS II, IV, AND VI
THE UNITED STATES CHARGES THAT THE PRINCIPAL UNDERWRITERS AND BROKER
DEALERS ENTERED INTO AGREEMENTS THAT COMPEL THE MAINTENANCE OF THE
PUBLIC OFFERING PRICE IN BROKERAGE TRANSACTIONS OF SPECIFIED MUTUAL
FUND SHARES, AND THAT PROHIBIT INTERDEALER TRANSACTIONS BY ALLOWING
EACH BROKER-DEALER TO SELL AND PURCHASE SHARES ONLY TO OR FROM
INVESTORS.  /11/ COUNT VIII ALLEGES THAT THE BROKER-DEALERS ENTERED
INTO OTHER, SIMILAR CONTRACTS AND COMBINATIONS WITH NUMEROUS PRINCIPAL
UNDERWRITERS.  COUNTS III, V, AND VII ALLEGE VIOLATIONS ON THE PART OF
THE PRINCIPAL UNDERWRITERS AND THE FUNDS THEMSELVES.  IN COUNTS III AND
VII THE VARIOUS DEFENDANTS ARE CHARGED WITH ENTERING INTO CONTRACTS
REQUIRING THE RESTRICTIVE UNDERWRITER-DEALER AGREEMENTS CHALLENGED IN
COUNTS II AND VI.  COUNT V CHARGES THAT THE AGREEMENT BETWEEN ONE FUND
AND ITS UNDERWRITER RESTRICTED THE LATTER TO SERVING AS A PRINCIPAL FOR
ITS OWN ACCOUNT IN ALL TRANSACTIONS WITH THE PUBLIC, THEREBY
PROHIBITING BROKERAGE TRANSACTIONS IN THE FUND'S SHARES.  APP.14. 

AFTER CAREFULLY EXAMINING THE STRUCTURE, PURPOSE, AND HISTORY OF THE
INVESTMENT COMPANY ACT, 15 U.S.C. 80A - 1 ET SEQ., AND THE MALONEY ACT,
15 U.S.C. 780 - 3, THE DISTRICT COURT HELD THAT THIS STATUTORY SCHEME
WAS "'INCOMPATIBLE WITH THE MAINTENANCE OF (AN) ANTITRUST ACTION.'" 
374 F.SUPP.  95, 109 (DC 1973), QUOTING SILVER V. NEW YORK STOCK
EXCHANGE, 373 U.S. 341, 358 (1963).  THE COURT CONCLUDED THAT 22 (D)
AND (F) OF THE INVESTMENT COMPANY ACT, WHEN READ IN CONJUNCTION WITH
THE MALONEY ACT, AFFORD ANTITRUST IMMUNITY FOR ALL OF THE PRACTICES
HERE CHALLENGED.  THE COURT FURTHER HELD THAT APART FROM THIS EXPLICIT
STATUTORY IMMUNITY, THE PERVASIVE REGULATORY SCHEME ESTABLISHED BY
THESE STATUTES CONFERS AN IMPLIED IMMUNITY FROM ANTITRUST SANCTION IN
THE "NARROW AREA OF DISTRIBUTION AND SALE OF MUTUAL FUND SHARES."  374
F. SUPP., AT 114.  THE COURT ACCORDINGLY DISMISSED THE COMPLAINT, AND
THE UNITED STATES APPEALED TO THIS COURT.  /12/ 

THE POSITION OF THE UNITED STATES IN THIS APPEAL CAN BE SUMMARIZED
BRIEFLY.  NOTING THAT IMPLIED REPEALS OF THE ANTITRUST LAWS ARE NOT
FAVORED, SEE, E.G., UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.
S. 321, 348 (1963), THE UNITED STATES URGES THAT THE ANTITRUST IMMUNITY
CONFERRED BY 22 OF THE INVESTMENT COMPANY ACT SHOULD NOT EXTEND BEYOND
ITS PRECISE TERMS, NONE OF WHICH, IT MAINTAINS, REQUIRES OR AUTHORIZES
THE PRACTICES HERE CHALLENGED.  THE UNITED STATES MAINTAINS, MOREOVER,
THAT THE DISTRICT COURT EXPANDED THE LIMITS OF THE IMPLIED-IMMUNITY
DOCTRINE BEYOND THOSE RECOGNIZED BY DECISIONS OF THIS COURT.  IN
RESPONSE, APPELLEES ADVANCE ALL OF THE POSITIONS RELIED ON BY THE
DISTRICT COURT.  THEY ARE JOINED BY THE SECURITIES AND EXCHANGE
COMMISSION (HEREINAFTER SEC OR COMMISSION), WHICH ASSERTS AS AMICUS
CURIAE THAT THE REGULATORY AUTHORITY CONFERRED UPON IT BY 22 (F) OF THE
INVESTMENT COMPANY ACT DISPLACES 1 OF THE SHERMAN ACT.  THE SEC
CONTENDS, THEREFORE, THAT THE DISTRICT COURT PROPERLY DISMISSED COUNTS
II-VIII BUT TAKES NO POSITION WITH RESPECT TO COUNT I.

        II

        A 

THE INVESTMENT COMPANY ACT OF 1940 ORIGINATED IN CONGRESSIONAL
CONCERN THAT THE SECURITIES ACT OF 1933, 48 STAT. 74, 15 U.S.C. 77A ET
SEQ., AND THE SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 881, 15 U.S.C.
78A ET SEQ., WERE INADEQUATE TO PROTECT THE PURCHASERS OF INVESTMENT
COMPANY SECURITIES.  THUS, IN 30 OF THE PUBLIC UTILITY HOLDING COMPANY
ACT, J9 STAT. 837, 15 U.S.C. 79Z - 4, CONGRESS DIRECTED THE SEC TO
STUDY THE STRUCTURES, PRACTICES, AND PROBLEMS OF INVESTMENT COMPANIES
WITH A VIEW TOWARD PROPOSING FURTHER LEGISLATION.  FOUR YEARS OF
INTENSIVE SCRUTINY OF THE INDUSTRY CULMINATED IN THE PUBLICATION OF THE
INVESTMENT TRUST STUDY AND THE RECOMMENDATION OF LEGISLATION TO RECTIFY
THE PROBLEMS AND ABUSES IT IDENTIFIED.  AFTER EXTENSIVE CONGRESSIONAL
CONSIDERATION, THE INVESTMENT COMPANY ACT OF 1940 WAS ADOPTED. 

THE ACT VESTS IN THE SEC BROAD REGULATORY AUTHORITY OVER THE
BUSINESS PRACTICES OF INVESTMENT COMPANIES.  /13/  WE ARE CONCERNED ON
THIS APPEAL WITH 22 OF THE ACT, 15 U.S.C. 80A - 22, WHICH CONTROLS THE
SALES AND DISTRIBUTION OF MUTUAL-FUND SHARES.  THE QUESTIONS PRESENTED
REQUIRE US TO DETERMINE WHETHER 22 (D) OBLIGATES APPELLEES TO ENGAGE IN
THE PRACTICES CHALLENGED IN COUNTS II - VIII AND THUS NECESSARILY
CONFERS ANTITRUST IMMUNITY ON THEM.  IF NOT, WE MUST DETERMINE WHETHER
SUCH PRACTICES ARE AUTHORIZED BY 22 (F) AND, IF SO, WHETHER THEY ARE
IMMUNE FROM ANTITRUST SANCTION.  RESOLUTION OF THESE ISSUES WILL BE
FACILITATED BY EXAMINING THE NATURE OF THE PROBLEMS AND ABUSES TO WHICH
22 IS ADDRESSED, A MATTER TO WHICH WE NOW TURN. 

B 

THE MOST THOROUGH DESCRIPTION OF THE SALES AND DISTRIBUTION
PRACTICES OF MUTUAL FUNDS PRIOR TO PASSAGE OF THE INVESTMENT COMPANY
ACT MAY BE FOUND IN PART III OF THE INVESTMENT TRUST STUDY.  /14/  THAT
STUDY, AS CONGRESS HAS RECOGNIZED, SEE 15 U.S.C. 80A - 1, FORMS THE
INITIAL BASIS FOR ANY EVALUATION OF THE ACT. 

PRIOR TO 1940 THE BASIC FRAMEWORK FOR THE PRIMARY DISTRIBUTION OF
MUTUAL-FUND SHARES WAS SIMILAR TO THAT EXISTING TODAY.  THE FUND
NORMALLY RETAINED A PRINCIPAL UNDERWRITER TO SERVE AS A WHOLESALER OF
ITS SHARES.  THE PRINCIPAL UNDERWRITER IN TURN CONTRACTED WITH A NUMBER
OF BROKER-DEALERS TO SELL THE FUND'S SHARES TO THE INVESTING PUBLIC. 
/15/ THE PRICE OF THE SHARES WAS BASED ON THE FUND'S NET ASSET VALUE AT
THE APPROXIMATE TIME OF SALE, AND A SALES COMMISSION OR LOAD WAS ADDED
TO THAT PRICE. 

ALTHOUGH PRIOR TO 1940 THE PRIMARY DISTRIBUTION SYSTEM FOR MUTUAL
FUND SHARES WAS SIMILAR TO THE PRESENT ONE, A NUMBER OF CONDITIONS THEN
EXISTED THAT LARGELY DISAPPEARED FOLLOWING PASSAGE OF THE ACT.  THE
MOST PROMINENTLY DISCUSSED CHARACTERISTIC WAS THE "TWO-PRICE SYSTEM,"
WHICH ENCOURAGED AN ACTIVE SECONDARY MARKET UNDER CONDITIONS THAT
TOLERATED DISRUPTIVE AND DISCRIMINATORY TRADING PRACTICES.  THE TWO
PRICE SYSTEM REFLECTED THE RELATIONSHIP BETWEEN THE COMMONLY USED
METHOD OF COMPUTING THE DAILY NET ASSET VALUE OF MUTUAL-FUND SHARES AND
THE MANNER IN WHICH THE PRICE FOR THE FOLLOWING DAY WAS ESTABLISHED. 
THE NET ASSET VALUE OF MUTUAL FUNDS, WHICH DEPENDS ON THE MARKET
QUOTATIONS OF THE STOCKS IN THEIR INVESTMENT PORTFOLIOS, FLUCTUATES
CONSTANTLY.  MOST FUNDS COMPUTED THEIR NET ASSET VALUES DAILY ON THE
BASIS OF THE FUND'S PORTFOLIO VALUE AT THE CLOSE OF EXCHANGE TRADING,
AND THAT FIGURE ESTABLISHED THE SALES PRICE THAT WOULD GO INTO EFFECT
AT A SPECIFIED HOUR ON THE FOLLOWING DAY.  DURING THIS INTERIM PERIOD
TWO PRICES WERE KNOWN:  THE PRESENT DAY'S TRADING PRICE BASED ON THE
PORTFOLIO VALUE ESTABLISHED THE PREVIOUS DAY; AND THE FOLLOWING DAY'S
PRICE, WHICH WAS BASED ON THE NET ASSET VALUE COMPUTED AT THE CLOSE OF
EXCHANGE TRADING ON THE PRESENT DAY.  ONE AWARE OF BOTH PRICES COULD
ENGAGE IN "RISKLESS TRADING" DURING THIS INTERIM PERIOD.  SEE
INVESTMENT TRUST STUDY PT. III, PP. 851 - 852. 

THE TWO-PRICE SYSTEM DID NOT BENEFIT THE INVESTING PUBLIC
GENERALLY.  SOME OF THE MUTUAL FUNDS DID NOT EXPLAIN THE SYSTEM
THOROUGHLY, AND UNSOPHISTICATED INVESTORS PROBABLY WERE UNAWARE OF ITS
EXISTENCE.  SEE ID., AT 867.  EVEN INVESTORS WHO KNEW OF THE TWO-PRICE
SYSTEM AND UNDERSTOOD ITS OPERATION WERE RARELY IN A POSITION TO
EXPLOIT IT FULLY.  IT WAS POSSIBLE, HOWEVER, FOR A KNOWLEDGEABLE
INVESTOR TO PURCHASE SHARES IN A RISING MARKET AT THE CURRENT PRICE
WITH THE ADVANCE INFORMATION THAT THE NEXT DAY'S PRICE WOULD BE
HIGHER.  HE THUS COULD BE GUARANTEED AN AN IMMEDIATE APPRECIATION IN
THE MARKET VALUE OF HIS INVESTMENT, 

/16/ ALTHOUGH THIS ADVANTAGE WAS OBTAINED AT THE EXPENSE OF THE
EXISTING SHAREHOLDERS, WHOSE EQUITY INTERESTS WERE DILUTED BY A
CORRESPONDING AMOUNT.  /17/  THE LOAD FEE THAT WAS CHARGED IN THE SALE
OF MUTUAL FUNDS TO THE INVESTING PUBLIC MADE IT DIFFICULT FOR THESE
INVESTORS TO REALIZE THE "PAPER GAIN" OBTAINED IN SUCH TRADING. 
BECAUSE THE DAILY FLUCTUATION IN NET ASSET VALUE RARELY EXCEEDED THE
LOAD, PUBLIC INVESTORS GENERALLY WERE UNABLE TO REALIZE IMMEDIATE
PROFITS FROM THE TWO-PRICE SYSTEM BY ENGAGING IN RAPID IN-AND-OUT
TRADING.  BUT INSIDERS, WHO OFTEN WERE ABLE TO PURCHASE SHARES WITHOUT
PAYING THE LOAD, DID NOT OPERATE UNDER THIS CONSTRAINT.  THUS INSIDERS
COULD, AND SOMETIMES DID, PURCHASE SHARES FOR IMMEDIATE REDEMPTION AT
THE APPRECIATED VALUE.  SEEN.  24, INFRA, AND SOURCES CITED THEREIN. 

THE TWO-PRICE SYSTEM OFTEN AFFORDED OTHER ADVANTAGES TO UNDERWRITERS
AND BROKER-DEALERS.  IN A FALLING MARKET THEY COULD ENHANCE PROFITS BY
WAITING TO FILL ORDERS WITH SHARES PURCHASED FROM THE FUND AT THE NEXT
DAY'S ANTICIPATED OWER PRICE.  IN A SIMILAR FASHION, IN A RISING MARKET
THEY COULD TAKE A "LONG POSITION" IN MUTUAL-FUND SHARES BY ESTABLISHING
AN INVENTORY IN ORDER TO SATISFY ANTICIPATED PURCHASES WITH SECURITIES
PREVIOUSLY OBTAINED AT A LOWER PRICE.  INVESTMENT TRUST STUDY PT. III,
PP.  854 - 855.  IN EACH CASE THE INVESTMENT COMPANY WOULD RECEIVE THE
LOWER OF THE TWO PREVAILING PRICES FOR ITS SHARES, ID., AT 854, AND THE
EQUITY INTERESTS OF SHAREHOLDERS WOULD SUFFER A CORRESPONDING
DILUTION.     AS A RESULT, AN ACTIVE SECONDARY MARKET IN MUTUAL-FUND
SHARES EXISTED.  ID., AT 865 - 867.  PRINCIPAL UNDERWRITERS AND
CONTRACT BROKER-DEALERS OFTEN MAINTAINED INVENTORY POSITIONS
ESTABLISHED BY PURCHASING SHARES THROUGH THE PRIMARY DISTRIBUTION
SYSTEM AND BY BUYING FROM OTHER DEALERS AND RETIRING SHAREHOLDERS. 
/18/ ADDITIONALLY, A "BOOTLEG MARKET" SPRANG UP, CONSISTING OF BROKER
DEALERS HAVING NO CONTRACTUAL RELATIONSHIP WITH THE FUND OR ITS
PRINCIPAL UNDERWRITER.  THESE BOOTLEG DEALERS PURCHASED SHARES AT A
DISCOUNT FROM CONTRACT DEALERS OR BOUGHT THEM FORM RETIRING
SHAREHOLDERS AT A PRICE SLIGHTLY HIGHER THAN THE REDEMPTION PRICE. 
BOOTLEG DEALERS WOULD THEN OFFER THE SHARES AT A PRICE SLIGHTLY LOWER
THAN THAT REQUIRED IN THE PRIMARY DISTRIBUTION SYSTEM, THUS "INITIATING
A SMALL SCALE PRICE WAR BETWEEN RETAILERS AND TENDING) GENERALLY TO
DISRUPT THE ESTABLISHED OFFERING PRICE."  ID., AT 865. 

THESE ABUSES IN MIND.  SECTIONS 22 (A) AND (C) WERE DESIGNED TO
"ELIMINATE) OR REDUCE) SO FAR AS REASONABLY PRACTICABLE ANY DILUTION OF
THE VALUE OF OTHER OUTSTANDING SECURITIES... OR ANY OTHER RESULT OF
(THE) PURCHASE, REDEMPTION OR SALE (OF MUTUAL FUND SECURITIES) WHICH IS
UNFAIR TO HOLDERS OF SUCH OTHER OUTSTANDING SECURITIES," 15 U.S.C. 80A
22 (A).  THEY AUTHORIZE THE NASD AND THE SEC TO REGULATE CERTAIN
PRICING AND TRADING PRACTICES IN ORDER TO EFFECTUATE THAT GOAL.  /19/
SEC TO PRESCRIBE THE MAXIMUM SALES COMMISSIONS OR LOADS THAT CAN BE
CHARGED IN CONNECTION WITH A PRIMARY DISTRIBUTION; AND 22 (E) PROTECTS
THE RIGHT OF REDEMPTION BY RESTRICTING MUTUAL FUNDS' POWER TO SUSPEND
REDEMPTION OR POSTPONE THE DATE OF PAYMENT. 

THE ISSUES PRESENTED IN THIS LITIGATION REVOLVE AROUND SUBSECTIONS
(D) AND (F) OF 22.  BEARING IN MIND THE HISTORY AND PURPOSES OF THE
INVESTMENT COMPANY ACT, WE NOW CONSIDER THE EFFECT OF THESE SUBSECTIONS
ON THE QUESTION OF POTENTIAL ANTITRUST LIABILITY FOR THE PRACTICES HERE
CHALLENGED. 

        III 

THAN THE CURRENT PUBLIC OFFERING PRICE TO ANY PERSON EXCEPT EITHER TO
OR THROUGH A PRINCIPAL UNDERWRITER FOR DISTRIBUTION.  IT FURTHER
COMMANDS THAT "NO DEALER SHALL SELL (MUTUAL-FUND SHARES) TO ANY PERSON
EXCEPT A DEALER, A PRINCIPAL UNDERWRITER, OR THE ISSUER, EXCEPT AT A
CURRENT PUBLIC OFFERING PRICE DESCRIBED IN THE PROSPECTUS."  15 U.S.C.
80A - 22 (D).  /20/ BY ITS TERMS, 22 (D) EXCEPTS INTERDEALER SALES FROM
ITS PRICE MAINTENANCE REQUIREMENT.  ACCORDINGLY, THIS SECTION CANNOT BE
RELIED UPON BY APPELLEES AS JUSTIFICATION FOR THE RESTRICTIONS IMPOSED
UPON INTERDEALER TRANSACTIONS.  AT ISSUE, RATHER, IS THE NARROWER
QUESTION WHETHER THE 22 (D) PRICE MAINTENANCE MANDATE FOR SALES BY
"DEALERS" APPLIES TO TRANSACTIONS IN WHICH A BROKER-DEALER ACTS AS A
STATUTORY "BROKER" RATHER THAN A STATUTORY "DEALER."  THE DISTRICT
COURT CONCLUDED THAT IT DOES, AND THUS THAT 22 (D) GOVERNS TRANSACTIONS
IN WHICH THE BROKER-DEALER ACTS AS AN AGENT FOR AN INVESTOR AS WELL AS
THOSE IN WHICH HE ACTS AS A PRINCIPAL SELLING SHARES FOR HIS OWN
ACCOUNT. 

        A 

THE DISTRICT COURT'S DECISION REFLECTS AN EXPANSIVE VIEW OF 22 (D). 
THE INVESTMENT COMPANY ACT SPECIFICALLY DEFINES "BROKER" AND "DEALER"
/21/ AND USES THE TERMS DISTINCTIVELY THROUGHOUT.  /22/ APPELLEES
MAINTAIN, HOWEVER, THAT THE DEFINITION OF "DEALER" IS SUFFICIENTLY
BROAD TO REQUIRE PRICE MAINTENANCE IN BROKERAGE TRANSACTIONS.  IN
SUPPORT OF THIS POSITION APPELLEES ASSERT THAT THE CRITICAL ELEMENTS OF
THE DEALER DEFINITION ARE THAT THE TERM RELATES TO A "PERSON" RATHER
THAN TO A TRANSACTION AND THAT THE PERSON MUST ENGAGE "REGULARLY" IN
THE SALE AND PURCHASE OF SECURITIES TO QUALIFY AS A DEALER.  IT IS
ARGUED, THEREFORE, THAT ANY PERSON WHO PURCHASES AND SELLS SECURITIES
WITH SUFFICENT REGULARITY TO QUALIFY AS A STATUTORY DEALER IS
THEREAFTER BOUND BY ALL DEALER RESTRICTIONS, REGARDLESS OF THE NATURE
OF THE PARTICULAR TRANSACTION IN QUESTION.  WE DO NOT FIND THIS
ARGUMENT PERSUASIVE. 

APPELLEES' RELIANCE ON THE STATUTORY REFERENCE TO "PERSON" IN
DEFINING DEALER ADDS LITTLE TO THE ANALYSIS, FOR THE ACT DEFINES
"BROKER," "INVESTMENT BANKER," "ISSUER," "UNDERWRITER," AND OTHERS TO
BE "PERSONS" AS WELL.  SEE 15 U.S.C. 80A - 2 (A)(6), (21), (22), AND
(40).  IN EACH INSTANCE, THE CRITICAL DISTINCTION RELATES TO THEIR
TRANSACTIONAL CAPACITY.  MOREOVER, WE THINK THAT APPELLEES' RELIANCE ON
THE REGULARITY REQUIREMENT IN THE DEALER DEFINITION PLACES UNDUE
EMPHASIS ON THAT ELEMENT AT THE EXPENSE OF THE REMAINDER OF THE
PROVISION.  ON THE FACE OF THE STATUTE THE MOST APPARENT DISTINCTION
BETWEEN A BROKER AND A DEALER IS THAT THE FORMER EFFECTS TRANSACTIONS
FOR THE ACCOUNT OF OTHERS AND THE LATTER BUYS AND SELLS SECURITIES FOR
HIS OWN ACCOUNT.  WE THEREFORE CANNOT AGREE THAT THE TERMS OF THE ACT
COMPEL THE CONCLUSION THAT A BROKERDEALER ACTING IN A BROKERAGE
CAPACITY WOULD BE BOUND BY THE 22 (D) DEALER MANDATE.  INDEED, THE
LANGUAGE OF THE ACT SUGGESTS THE OPPOSITE RESULT. 

EVEN IF WE ASSUME, ARGUENDO, THAT THE STATUTORY DEFINITION IS
AMBIGUOUS, WE FIND NOTHING IN THE CONTEMPORANEOUS LEGISLATIVE HISTORY
OF THE INVESTMENT COMPANY ACT TO JUSTIFY INTERPRETING 22 (D) TO
ENCOMPASS BROKERED TRANSACTIONS.  THAT HISTORY IS SPARSE, /23/ AND
SUGGESTS ONLY THAT 22 (D) WAS CONSIDERED NECESSARY TO CURB ABUSES THAT
HAD ARISEN IN THE SALES OF SECURITIES TO INSIDERS.  /24/ 

THE PROHIBITION AGAINST INSIDER TRADING WOULD SEEM ADEQUATELY SERVED
BY THE FIRST CLAUSE OF 22 (D), WHICH PREVENTS MUTUAL FUNDS FROM SELLING
SHARES AT OTHER THAN THE PUBLIC OFFERING PRICE TO ANY PERSON EXCEPT A
PRINCIPAL UNDERWRITER OR DEALER.  SEE N. 20, SUPRA.  /25/ THE FURTHER
RESTRICTION ON DEALER SALES BEARS LITTLE RELATION TO INSIDER TRADING,
HOWEVER, AND LOGICALLY WOULD BE THOUGHT TO SERVE SOME OTHER PURPOSE. 
TO OBVIOUS EFFECT OF THE DEALER PROHIBITION IS TO SHIELD THE PRIMARY
DISTRIBUTION SYSTEM FROM THE COMPETITIVE IMPACT OF UNRESTRICTED DEALER
TRADING IN THE SECONDARY MARKETS, A CONCERN THAT WAS REFLECTED IN THE
STUDY, SEE INVESTMENT TRUST STUDY PT. III, P. 865.  THE SEC PERCEIVES
THIS TO BE ONE OF THE PURPOSES OF THIS PROVISION.  /26/ 

BUT CONCLUDING THAT PROTECTION OF THE PRIMARY DISTRIBUTION SYSTEM IS
A PURPOSE OF 22 (D) DOES LITTLE TO RESOLVE THE QUESTION WHETHER
CONGRESS INTENDED TO REQUIRE STRICT PRICE MAINTENANCE IN ALL BROKER
DEALER TRANSACTIONS WITH THE INVESTING PUBLIC.  BY ITS TERMS, 22 (D)
PROTECTS ONLY AGAINST THE POSSIBLY DISRUPTIVE EFFECTS OF SECONDARY
DEALER SALES WHICH, AS STATUTORILY DEFINED, CONSTITUTED THE MOST ACTIVE
SECONDARY MARKET EXISTING PRIOR TO THE ACT'S PASSAGE.  NOTHING IN THE
CONTEMPORARY HISTORY SUGGESTS THAT CONGRESS WAS EQUALLY CONCERNED WITH
POSSIBLE DISRUPTION FROM INVESTOR TRANSACTIONS IN OUTSTANDING SHARES
CONDUCTED THROUGH STATUTORY BROKERS. 

NOR DO WE THINK THAT THE HISTORY ATTENDING SUBSEQUENT CONGRESSIONAL
CONSIDERATION OF THE ACT PROVIDES ADEQUATE SUPPORT FOR APPELLEES'
CONTENTION THAT 22 (D) REQUIRES STRICT PRICE MAINTENANCE IN ALL BROKER
DEALER TRANSACTIONS IN MUTUAL-FUND SHARES.  TO BE SURE, PORTIONS OF THE
TESTIMONY OF SEC CHAIRMAN COHEN BEFORE THE HOUSE SUBCOMMITTEE ON
COMMERCE AND FINANCE IN 1967 SUGGESTED THAT THE MAINTENANCE REQUIREMENT
OF 22 (D) ENCOMPASSED ALL BROKER-DEALERS, IRRESPECTIVE OF HOW THEY
OBTAINED THE TRADED SHARES, /27/ AND ON OTHER OCCASIONS THE CHAIRMAN
REFERRED TO SALES BY BROKERS WHEN DISCUSSING MUTUAL-FUND TRANSACTIONS. 
/28/ APPELLEES ALSO CAN POINT TO CONGRESSIONAL CHARACTERIZATIONS OF 22
(D) THAT SUGGEST THAT SOME MEMBERS OF CONGRESS UNDERSTOOD THE REACH OF
THAT PROVISION TO BE AS BROAD AS THE DISTRICT COURT THOUGHT.  /29/ 

APPELLEES MAINTAIN THAT THIS HISTORY INDICATES THAT CONGRESS ALWAYS
INTENDED 22(D) TO CONTROL BROKER AS WELL AS DEALER TRANSACTIONS, AND
THAT IT RE-ENACTED THE AMENDED 22 WITH THAT PURPOSE IN MIND.  THE
DISTRICT COURT ACCEPTED THIS POSITION, AND IT IS NOT WITHOUT SOME
SUPPORT IN THIS HISTORICAL RECORD.  /30/ BUT IMPRSSIVE EVIDENCE TO THE
CONTRARY IS FOUND IN THE POSITION CONSISTENTLY MAINTAINED BY THE SEC.
RESPONDING TO AN INQUIRY IN 1941, THE SEC GENERAL COUNSEL STATED THAT
22 (D) DID NOT BAR BROKERAGE TRANSACTIONS IN MUTUAL-FUND SHARES: 

     "IN MY OPINION THE TERM 'DEALER,' AS USED IN SECTION 22 (D),

  REFERS TO THE CAPACITY IN WHICH A BROKER-DEALER IS ACTING IN A

  PARTICULAR TRANSACTION.  IT FOLLOWS, THEREFORE, THAT IF A

BROKER-DEALER IN A PARTICULAR TRANSACTION IS ACTING SOLELY IN THE

  CAPACITY OF AGENT FOR A SELLING INVESTOR, OR FOR BOTH A SELLING

  INVESTOR AND A PURCHASING INVESTOR, THE SALE MAY BE MADE AT A

  PRICE OTHER THAN THE CURRENT OFFERING PRICE DESCRIBED IN THE

  PROSPECTUS.  . . . 

     "ON THE OTHER HAND, IF A BROKER-DEALER IS ACTING FOR HIS OWN

ACCOUNT IN A TRANSACTION AND AS PRINCIPAL SELLS A REDEEMABLE

  SECURITY TO AN INVESTOR, THE PUBLIC OFFERING PRICE MUST BE

  MAINTAINED, EVEN THOUGH THE SALE IS MADE THROUGH ANOTHER BROKER 

     WHO ACTS AS AGENT FOR THE SELLER.  THE INVESTOR, OR BOTH. 

     "AS SECTION 22(D) ITSELF STATES, THE OFFERING PRICE IS NOT

  REQUIRED TO BE MAINTAINED IN THE CASE OF SALES IN WHICH BOTH THE

  BUYER AND THE SELLER ARE DEALERS ACTING AS PRINCIPALS IN THE

  TRANSACTION.  " INVESTMENT COMPANY ACT.  REL.  NO. 78, MAR. 4,
1941,

  11 FED.REG.  10992 (1941). 

THIS SUBSTANTIALLY CONTEMPORANEOUS INTERPRETATION OF THE ACT HAS HAS
CONSISTENTLY BEEN MAINTAINED IN SUBSEQUENT SEC OPINIONS, SEE OXFORD
CO., INC., 21 S. E. C. 681, 690 (1946); MUTUAL FUNDS ADVISORY, INC.,
INVESTMENT COMPANY ACT REL. NO. 6932, P. 3 (1972).  THE SAME POSITION
WAS ASSERTED IN A RECENT STAFF REPORT, SEE 1974 STAFF REPORT 105 N. 2,
107 N. 2, AND 109, WAS RELIED ON BY THE SEC IN ITS SUBSEQUENT DECISION
TO ENCOURAGE LIMITED PRICE COMPETITION IN BROKERED TRANSACTIONS, /31/
AND IS ADVANCED BY IT AS AMICUS CURIAE IN THIS COURT.  THIS CONSISTENT
AND LONGSTANDING INTERPRETATION BY THE AGENCY CHARGED WITH
ADMINISTRATION OF THE ACT, WHILE NOT CONTROLLING, IS ENTITLED TO
CONSIDERABLE WEIGHT.  SEE, E. G., SAXBE V. BUSTOS, 419 U. S. 65 (1974);
INVESTMENT CO. INSTITUTE V. CAMP, 401 U. S. 617, 626 -627 (1971); UDALL
V. TALLMAN, 380 U. S. 1, 16 (1965). 

THE SUBSTANCE OF APPELLEES' POSITION IS THAT THE DEALER PROHIBITION
OF 22 (D) SHOULD BE INTERPRETED IN GENERIC RATHER THAN STATUTORY
TERMS.  THE PRICE MAINTENANCE REQUIREMENT OF THAT SECTION ACCORDINGLY
WOULD ENCOMPASS ALL BROKER-DEALER TRANSACTIONS WITH THE INVESTING
PUBLIC AND WOULD SHELTER THEM FROM ANTITRUST SANCTION.  BUT SUCH AN
EXPANSION OF 22(D) BEYOND ITS TERMS WOULD NOT ONLY DISPLACE THE
ANTITRUST LAWS BY IMPLICATION, IT ALSO WOULD IMPINGE SERIOUSLY ON THE
SEC'S MORE FLEXIBLE REGULATORY AUTHORITY UNDER 22 (F).  /32/ 

IMPLIED ANTITRUST IMMUNITY IS NOT FAVORED, AND CAN BE JUSTIFIED ONLY
BY A CONVINCING SHOWING OF CLEAR REPUGNANCY BETWEEN THE ANTITRUST LAWS
AND THE REGULATORY SYSTEM.  SEE, E. G., UNITED STATES V. PHILADELPHIA
NATIONAL BANK, 374 U. S., AT 348; UNITED STATES V. BORDEN CO., 308 U.S.
188, 197 - 206 (1939).  WE THINK NO SUCH SHOWING HAS BEEN MADE. 
MOREOVER, IN ADDITION TO SATISFYING OUR RESPONSIBILITY TO RECONCILE THE
ANTITRUST AND REGULATORY STATUTES WHERE FEASIBLE, SILVER V. NEW YORK
STOCK EXCHANGE, 373 U.S., AT 356 - 357, WE MUST INTERPRET THE
INVESTMENT COMPANY ACT IN A MANNER MOST CONDUCIVE TO THE EFFECTUATION
OF ITS GOALS.  WE CONCLUDE THAT APPELLEE'S INTERPRETATION OF 22 (D)
SERVES NEITHER PURPOSE, AND CANNOT BE JUSTIFIED BY THE LANGUAGE OR
HISTORY OF THAT SECTION. 

WE THEREFORE HOLD THAT THE PRICE MAINTENANCE MANDATE OF 22 (D)
CANNOT BE STRETCHED BEYOND ITS LITERAL TERMS TO ENCOMPASS TRANSACTIONS
BY BROKER-DEALERS ACTING AS STATUTORY "BROKERS."  CONGRESS DEFINED THE
LIMITATIONS FOR THE MANDATORY PRICE MAINTENANCE REQUIREMENT OF THE
INVESTMENT COMPANY ACT.  "WE ARE NOT ONLY BOUND BY THOSE LIMITATIONS
BUT WE ARE BOUND TO CONSTRUE THEM STRICTLY, SINCE RESALE PRICE
MAINTENANCE IS A PRIVILEGE RESTRICTIVE OF A FREE ECONOMY."  UNITED
STATES V. MCKESSON & ROBBINS, 351 U. S. 305, 316 (1956).  ACCORDINGLY,
WE HOLD THAT THE DISTRICT COURT ERRED IN RELYING ON 22(D) IN
DETERMINING THAT THE ACTIVITIES HERE QUESTIONED ARE IMMUNE FROM
ANTITRUST LIABILITY. 

        IV 

OUR DETERMINATION THAT THE RESTRICTIONS ON THE SECONDARY MARKET ARE
NOT IMMUNIZED BY 22(D) DOES NOT END THE INQUIRY, FOR THE DISTRICT COURT
ALSO FOUND THEM SHELTERED FROM ANTITRUST LIABILITY BY 22 (F). 
APPELLEES, JOINED BY THE SEC, DEFEND THIS RULING AND URGE THAT IT
REQUIRES DISMISSAL OF THE CHALLENGE TO THE VERTICAL RESTRICTIONS SOUGHT
TO BE ENJOINED IN COUNTS 11 - V111. 

NEGOTIABILITY AND TRANSFERABILITY OF THEIR SHARES, PROVIDED THEY THEY
CONFORM WITH THE FUND'S REGISTRATION STATEMENT AND DO NOT CONTRAVENE
ANY RULES AND REGULATIONS THE COMMISSION MAY PRESCRIBE IN THE INTERESTS
OF THE HOLDERS OF ALL OF THE OUTSTANDING SECURITIES.  /33/  THE
GOVERNMENT DOES NOT CONTEND THAT THE VERTICAL RESTRICTIONS ARE NOT
DISCLOSED IN THE REGISTRATION STATEMENTS OF THE FUNDS IN QUESTION.  NOR
DOES IT ASSERT THAT THE AGREEMENTS IMPOSING SUCH RESTRICTIONS VIOLATE
COMMISSION RULES AND REGULATIONS.  INDEED, IT COULD NOT DO SO, BECAUSE
TO DATE THE SEC HAS PRESCRIBED NO SUCH STANDARDS.  INSTEAD THE
GOVERNMENT MAINTAINS THAT THE CONTRACTUAL RESTRICTIONS DO NOT COME
WITHIN THE MEANING OF THE ACT, ASSERTING THAT 22(F) DOES NOT AUTHORIZE
THE IMPOSITION OF RESTRAINTS ON THE DISTRIBUTION SYSTEM RATHER THAN ON
THE SHARES THEMSELVES.  THE GOVERNMENT THUS APPARENTLY URGES THAT THE
ONLY LIMITATIONS CONTEMPLATED BY THIS SECTION ARE THOSE THAT APPEAR ON
THE FACE OF THE CERTIFICATE ITSELF.  THE GOVERNMENT ALSO URGES THAT THE
SEC'S UNEXERCISED POWER TO PRESCRIBE RULES AND REGULATIONS IS
INSUFFICIENT TO CREATE REPUGNANCY BETWEEN ITS REGULATORY AUTHORITY AND
THE ANTITRUST LAWS.     OUR EXAMINATION OF THE LANGUAGE AND HISTORY OF
22(F) PERSUADES US, HOWEVER, THAT THE AGREEMENTS CHALLENGED IN COUNTS
11 - V111 ARE AMONG THE KINDS OF RESTRICTIONS CONGRESS CONTEMPLATED
WHEN IT ENACTED THAT SECTION.  AND THIS CONCLUSION NECESSARILY LEADS TO
A DETERMINATION THAT THEY ARE IMMUNE FROM LIABILITY UNDER THE SHERMAN
ACT, FOR WE SEE NO WAY TO RECONCILE THE COMMISSION'S POWER TO AUTHORIZE
THESE RESTRICTIONS WITH THE COMPETING MANDATE OF THE ANTITRUST LAWS. 

        A     UNLIKE 22(D), 22(F) ORIGINATED IN THE COMMISSION
SPONSORED BILL CONSIDERED IN THE SENATE SUBCOMMITTEE HEARINGS THAT
PRECEDED INTRODUCTION OF THE COMPROMISE PROPOSAL LATER ENACTED INTO
LAW.  THE COMMISSIONSPONSORED PROVISION AUTHORIZED THE SEC TO
PROMULGATE RULES, REGULATIONS, OR ORDERS PROHIBITING RESTRICTIONS ON
THE TRANSFERABILITY OR NEGOTIABILITY OF MUTUAL-FUND SHARES, S. 3580,
22(D)(2), 76TH CONG., 3D SESS. (1940).  /34/ COMMISSION TESTIMONY
INDICATES THAT IT CONSIDERED THIS AUTHORITY NECESSARY TO ALLOW
REGULATORY CONTROL OF INDUSTRY MEASURES DESIGNED TO DEAL WITH THE
DISRUPTIVE EFFECTS OF "BOOTLEG MARKET" TRADING AND WITH OTHER
DETRIMENTAL TRADING PRACTICES IDENTIFIED IN THE INVESTMENT TRUST
STUDY.  /35/ 

THE STUDY INDICATES, MOREOVER, THAT A NUMBER OF FUNDS HAD BEGUN TO
DEAL WITH THESE PROBLEMS PRIOR TO PASSAGE OF THE ACT.  AND WHILE THEIR
METHODS MAY HAVE INCLUDED THE IMPOSITION OF RESTRICTIVE LEGENDS ON THE
FACE OF THE CERTIFICATE, SEE N. 35, SUPRA, THEY WERE BY NO MEANS
CONFINED TO SUCH NARROW LIMITS.  A NUMBER OF FUNDS IMPOSED CONTROLS ON
THE ACTIVITIES OF THEIR PRINCIPAL UNDERWRITERS, SEE INVESTMENT TRUST
STUDY PT. III, PP. 868 - 869; AND IN SOME INSTANCES THE FUNDS REQUIRED
THE UNDERWRITERS TO IMPOSE SIMILAR RESTRICTIONS ON THE DEALERS, SEE
ID., AT 869, OR ENTERED INTO THESE RESTRICTIVE AGREEMENTS WITH THE
DEALERS THEMSELVES, ID., AT 870 - 871. 

IN VIEW OF THE HISTORY OF THE INVESTMENT COMPANY ACT, WE FIND NO
JUSTIFICATION FOR LIMITING THE RANGE OF POSSIBLE TRANSFER RESTRICTIONS
TO THOSE THAT APPEAR ON THE FACE OF THE CERTIFICATE.  THE BOOTLEG
MARKET WAS PRIMARILY A PROBLEM OF THE DISTRIBUTION SYSTEM, AND BOOTLEG
DEALERS FOUND A SOURCE OF SUPPLY IN THE CONTRACT DEALERS AS WELL AS IN
RETIRING SHAREHOLDERS.  SEE ID., AT 865.  MOREOVER, THE STUDY INDICATES
THAT PART OF THE BOOTLEG DISTRIBUTION SYSTEM CONSISTED OF "TRADING
FIRMS" THAT SERVED AS WHOLESALERS OF MUTUAL-FUND SECURITIES IN MUCH THE
SAME FASHION AS THE PRINCIPAL UNDERWRITERS.  THESE TRADING FIRMS
PRIMARILY PURCHASED AND SOLD SHARES TO AND FROM OTHER DEALERS,
INVESTMENT TRUST STUDY PT. II, P. 327, FREQUENTLY OFFERING THEM AT A
PRICE SLIGHTLY LOWER THAN THE DISCOUNTED RATE CHARGE TO DEALERS IN THE
PRIMARY DISTRIBUTION SYSTEM.  ID., AT 327 - 328.  THUS TRADING FIRMS
NOT ONLY HELPED SUPPLY THE BOOTLEG DEALERS WHOSE SALES UNDERCUT THOSE
OF THE CONTRACT DEALERS, THEY COMPETED WITH THE PRINCIPAL UNDERWRITERS
BY OFFERING A SOURCE FOR LOWER COST SHARES THAT INEVITABLY DISCOURAGED
PARTICIPATION IN THE PRIMARY DISTRIBUTION SYSTEM.  SEE ID., AT 328 N.
85. 

THE BOOTLEG MARKET WAS A COMPLEX PHENOMENON WHOSE PRINCIPAL ORIGINS
LAY IN THE DISTRIBUTION SYSTEM ITSELF.  IN VIEW OF THIS HISTORY,
LIMITATION OF THE INDUSTRY'S ABILITY, SUBJECT OF COURSE TO SEC
REGULATION, TO REACH THESE PROBLEMS AT THEIR SOURCE WOULD CONSTITUTE AN
INAPPROPRIATE CONTRACTION OF THE REMEDIAL FUNCTION OF THE STATUTE. 
/36/ INDEED, IN VIEW OF THE ROLE OF TRADING FIRMS AND INTERDEALER
TRANSACTIONS IN THE MAINTENANCE OF THE BOOTLEG MARKET, THE NARROW
INTERPRETATION OF 22(F) URGED BY THE GOVERNMENT WOULD SEEM TO AFFORD
INADEQUATE AUTHORITY TO DEAL WITH THE PROBLEM. 

TOGETHER, 22(D) AND 22(F) PROTECT THE PRIMARY DISTRIBUTION SYSTEM
FOR MUTUAL-FUND SECURITIES.  SECTION 22(D), BY ELIMINATING PRICE
COMPETITION IN DEALER SALES, INHIBITS THE MOST DISRUPTIVE FACTOR IN THE
PRE-1940'S MUTUAL MARKET AND THUS ASSURES THE MAINTENANCE OF A VIABLE
SALES SYSTEM.  SECTION 22(F) COMPLEMENTS THIS PROTECTION BY AUTHORIZING
THE FUNDS AND THE SEC TO DEAL MORE FLEXIBLY WITH OTHER DETRIMENTAL
TRADING PRACTICES BY IMPOSING SEC-APPROVED RESTRICTIONS ON
TRANSFERABILITY AND NEGOTIABILITY.  THE GOVERNMENT'S LIMITING
INTERPRETATION OF 22(F) COMPROMISES THIS FLEXIBLE MANDATE, AND CANNOT
BE ACCEPTED. 

WE FIND SUPPORT FOR OUR INTERPRETATION OF 22(F) IN THE VIEWS
EXPRESSED BY THE SEC SHORTLY AFTER THE PASSAGE OF THE ACT.  RULE 26(J)
(2), PROPOSED BY THE NASD TO CURB ABUSES IDENTIFIED IN THE STUDY AND
THE CONGRESSIONAL HEARINGS, PROVIDED LIMITATIONS ON UNDERWRITER SALES
AND REDEMPTIONS TO OR FROM DEALERS WHO ARE NOT PARTIES TO SALES
AGREEMENTS.  IN COMMENTING ON THIS PROPOSED RULE, THE SEC CHARACTERIZED
IT AS A "RESTRICTION ON THE TRANSFERABILITY OF SECURITIES," AND
SPECIFICALLY ADVERTED TO ITS POWER TO REGULATE SUCH RESTRICTIONS UNDER
22(F).  NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., 9 S. E. C.
38, 44 - 45 AND N. 10 (1941).  AS INDICATED ABOVE, SEE SUPRA, AT 719,
AND SOURCES THERE CITED, THIS CONTEMPORANEOUS INTERPRETATION BY THE
RESPONSIBLE AGENCY IS ENTITLED TO CONSIDERABLE WEIGHT.  WE THEREFORE
CONCLUDE THAT THE RESTRICTIONS ON TRANSFERABILITY AND NEGOTIABILITY
CONTEMPLATED BY 22(F) INCLUDE RESTRICTIONS ON THE DISTRIBUTION SYSTEM
FOR MUTUAL-FUND SHARES AS WELL AS LIMITATIONS ON THE FACE OF THE SHARES
THEMSELVES.  THE NARROWER INTERPRETATION OF THIS PROVISION ADVANCED BY
THE GOVERNMENT WOULD DISSERVE THE BROAD REMEDIAL FUNCTION OF THE
STATUTE.  /37/ 

THE GOVERNMENT'S ADDITIONAL CONTENTION THAT THE SEC'S EXERCISE OF
REGULATORY AUTHORITY HAS BEEN INSUFFICIENT TO GIVE RISE TO AN IMPLIED
IMMUNITY FOR AGREEMENTS CONFORMING WITH 22(F) MISCONCEIVES THE INTENDED
OPERATION OF THE STATUTE.  BY ITS TERMS, 22(F) AUTHORIZES PROPERLY
DISCLOSED RESTRICTIONS UNLESS THEY ARE INCONSISTENT WITH SEC RULES OR
REGULATIONS.  THE PROVISION THUS AUTHORIZES FUNDS TO IMPOSE
TRANSFERABILITY OR NEGOTIABILITY RESTRICTIONS, SUBJECT TO COMMISSION
DISAPPROVAL.  IN VIEW OF THE EVOLUTION OF THIS PROVISION, THERE CAN BE
NO DOUBT THAT THIS IS PRECISELY WHAT CONGRESS INTENDED. 

TO PROMULGATE RULES, REGULATIONS, OR ORDERS PROHIBITING RESTRICTIONS ON
THE REDEEMABILITY OR TRANSFERABILITY OF MUTUAL-FUND SHARES. 
CONGRESSIONAL CONSIDERATION OF THAT PROVISION RAISED SOME QUESTION
WHETHER EXISTING RESTRICTIONS ON TRANSFERABILITY AND NEGOTIABILITY
WOULD REMAIN VALID UNLESS SPECIFICALLY DISAPPROVED BY THE SEC.  /38/
THE COMPROMISE PROVISION, WHICH SUBSEQUENTLY WAS ENACTED INTO LAW,
ELIMINATED THIS UNCERTAINTY, HOWEVER, AND MANIFESTED A MORE POSITIVE
ATTITUDE TOWARD SELF-REGULATION. 

THUS 22(F) SPECIFICALLY RECOGNIZES THAT MUTUAL FUNDS CAN IMPOSE SUCH
RESTRICTIONS ON THE DISTRIBUTION SYSTEM PROVIDED THEY ARE DISCLOSED IN
THE REGISTRATION STATEMENT AND CONFORM TO ANY RULES AND REGULATIONS
THAT THE SEC MIGHT ADOPT.  IN ADDITION, 22(F) ALTERS THE FOCUS OF
COMMISSION SCRUTINY.  WHEREAS THE ORIGINAL PROVISION ALLOWED THE SEC TO
MAKE RULES THAT SERVE "THE PUBLIC INTEREST OR . . . THE PROTECTION OF
INVESTORS," S. 3580, 22(D)(2), SUPRA, 22(F) AS ENACTED LIMITS THE
COMMISSION'S RULEMAKING AUTHORITY TO THE PROTECTION OF THE "INTERESTS
OF THE HOLDERS OF ALL OF THE OUTSTANDING SECURITITS OF SUCH INVESTMENT
COMPANY."  15 U.S.C. 80A - 22(F).  VIEWED IN THIS HISTORICAL CONTEXT,
THE STATUTE REFLECTS A CLEAR CONGRESSIONAL DETERMINATION THAT, SUBJECT
TO COMMISSION OVERSIGHT, MUTUAL FUNDS SHOULD BE ALLOWED TO RETAIN THE
INITIATIVE IN DEALING WITH THE POTENTIALLY ADVERSE EFFECTS OF
DISRUPTIVE TRADING PRACTICES. 

THE COMMISSION REPEATEDLY HAS RECOGNIZED THE ROLE OF PRIVATE
AGREEMENTS IN THE CONTROL OF TRADING PRACTICES IN THE MUTUAL-FUND
INDUSTRY.  FOR EXAMPLE, IN FIRST MULTIFUND OF AMERICA, INC., INVESTMENT
COMPANY ACT REL. NO. 6700 (1971), (1970 - 1971 TRANSFER BINDER) CCH
FED. SEC. L. REP. (78,209, P. 80,602, IT LOOKED TO RESTRICTIVE
AGREEMENTS SIMILAR TO THOSE CHALLENGED IN THIS LITIGATION TO ASCERTAIN
AN INVESTMENT ADVISOR'S CAPACITY IN A PARTICULAR TRANSACTION.  AT NO
POINT DID IT INTIMATE THAT THOSE AGREEMENTS WERE NOT LEGITIMATE.  /39/
LIKEWISE, COMMISSION REPORTS REPEATEDLY HAVE ACKNOWLEDGED THE
SIGNIFICANT ROLE THAT PRIVATE AGREEMENTS HAVE PLAYED IN RESTRICTING THE
GROWTH OF A SECONDARY MARKET IN MUTUAL-FUND SHARES.  /40/  UNTIL
RECENTLY THE COMMISSION HAS ALLOWED THE INDUSTRY TO CONTROL THE
SECONDARY MARKET THROUGH CONTRACTUAL RESTRICTIONS DULY FILED AND
PUBLICLY DISCLOSED.  EVEN THE SEC'S RECENTLY EXPRESSED INTENTION TO
INTRODUCE AN ELEMENT OF COMPETITION IN BROKERED TRANSACTIONS REFLECTS
MEASURED CAUTION AS TO THE POSSIBLY ADVERSE IMPACT OF A TOTALLY
UNREGULATED AND RESTRAINED BROKERAGE MARKET ON THE PRIMARY DISTRIBUTION
SYSTEM.  SEE N. 31, SUPRA.  THE COMMISSION'S ACCEPTANCE OF FUND
INITIATED RESTRICTIONS FOR MORE THAN THREE DECADES HARDLY REPRESENTS
ABDICATION OF ITS REGULATORY RESPONSIBILITIES.  RATHER, WE THINK IT
MANIFESTS AN INFORMED ADMINISTRATIVE JUDGMENT THAT THE CONTRACTUAL
RESTRICTIONS EMPLOYED BY THE FUNDS TO PROTECT THEIR SHAREHOLDERS WERE
APPROPRIATE MEANS FOR COMBATING THE PROBLEMS OF THE INDUSTRY.  THE
SEC'S ELECTION NOT TO INITIATE RESTRICTIVE RULES OR REGULATIONS IS
PRECISELY THE KIND OF ADMINISTRATIVE OVERSIGHT OF PRIVATE PRACTICES
THAT CONGRESS CONTEMPLATED WHEN IT ENACTED 22(F). 

WE CONCLUDE, THEREFORE, THAT THE VERTICAL RESTRICTIONS SOUGHT TO BE
ENJOINED IN COUNTS II - VIII ARE AMONG THE KINDS OF AGREEMENTS
AUTHORIZED BY 22(F) OF THE INVESTMENT COMPANY ACT. 

        B 

THE AGREEMENTS QUESTIONED BY THE UNITED STATES RESTRICT THE TERMS
UNDER WHICH THE APPELLEE UNDERWRITERS AND BROKER-DEALERS MAY TRADE IN
SHARES OF MUTUAL FUNDS.  SUCH RESTRICTIONS, EFFECTING RESALE PRICE
MAINTENANCE AND CONCERTED REFUSALS TO DEAL, NORMALLY WOULD CONSTITUTE
PER SE VIOLATIONS OF 1 OF THE SHERMAN ACT.  SEE, E. G., KLOR'S, INC. V.
BROADWAY-HALE STORES, INC., 359 U. S. 207, 211 - 213 (1959); FASHION
ORIGINATORS' GUILD OF AMERICA, INC. V. FTC, 312 U. S. 457, 465 - 468
(1941).  HERE, HOWEVER, CONGRESS HAS MADE A JUDGMENT THAT THESE
RESTRICTIONS ON COMPETITION MIGHT BE NECESSITATED BY THE UNIQUE
PROBLEMS OF THE MUTUAL-FUND INDUSTRY, AND HAS VESTED IN THE SEC FINAL
AUTHORITY TO DETERMINE WHETHER AND TO WHAT EXTENT THEY SHOULD BE
TOLERATED "IN THE INTERESTS OF THE HOLDERS OF ALL THE OUTSTANDING
SECURITIES" OF MUTUAL FUNDS.  15 U.S.C. 80A - 22(F). 

THE SEC, THE FEDERAL AGENCY RESPONSIBLE FOR REGULATING THE CONDUCT
OF THE MUTUAL-FUND INDUSTRY, URGES THAT ITS AUTHORITY WILL BE
COMPROMISED SERIOUSLY IF THESE AGREEMENTS ARE DEEMED ACTIONABLE UNDER
THE SHERMAN ACT.  /41/ WE AGREE.  THERE CAN BE NO RECONCILIATION OF ITS
AUTHORITY UNDER 22(F) TO PERMIT THESE AND SIMILAR RESTRICTIVE
AGREEMENTS WITH THE SHERMAN ACT'S DECLARATION THAT THEY ARE ILLEGAL PER
SE.  IN THIS INSTANCE THE ANTITRUST LAWS MUST GIVE WAY IF THE
REGULATORY SCHEME ESTABLISHED BY THE INVESTMENT COMPANY ACT IS TO
WORK.  SILVER V. NEW YORK STOCK EXCHANGE, 373 U. S. 341 (1963).  WE
CONCLUDE, THEREFORE, THAT SUCH AGREEMENTS ARE NOT ACTIONABLE UNDER THE
SHERMAN ACT, AND THAT THE DISTRICT COURT PROPERLY DISMISSED COUNTS II -
VIII. 

        V 

IT REMAINS TO BE DETERMINED WHETHER THE DISTRICT COURT PROPERLY
DISMISSED COUNT I OF THE GOVERNMENT'S COMPLAINT, WHICH CHARGED
ACTIVITIES ALLEGEDLY CONSTITUTING A HORIZONTAL CONSPIRACY BETWEEN THE
NASD AND ITS MEMBERS TO "PREVENT THE GROWTH OF A SECONDARY DEALER
MARKET AND A BROKERAGE MARKET IN THE PURCHASE AND SALE OF MUTUAL FUND
SHARES."  APP.  9. 

THE PRECISE NATURE OF THE ALLEGATIONS OF THE COMPLAINT ARE OBSCURED
BY SUBSEQUENT CONCESSIONS MADE BY THE GOVERNMENT TO THE DISTRICT COURT
AND REITERATED HERE.  IT IS CLEAR, HOWEVER, THAT COUNT I ALLEGES
ACTIVITIES THAT ARE NEITHER REQUIRED BY 22 (D) NOR AUTHORIZED UNDER 22
(F).  AND SINCE THEY CANNOT FIND ANTITRUST SHELTER IN THESE PROVISIONS
OF THE INVESTMENT COMPANY ACT, THE QUESTION PRESENTED IS WHETHER THE
SEC'S EXERCISE OF REGULATORY AUTHORITY UNDER THIS STATUTE AND THE
MALONEY ACT IS SUFFICIENTLY PERVASIVE TO CONFER AN IMPLIED IMMUNITY. 
WE HOLD THAT IT IS, AND ACCORDINGLY AFFIRM THE DISTRICT COURT'S
DISMISSAL OF THIS PORTION OF THE COMPLAINT. 

COUNT I ORIGINALLY APPEARED TO BE A GENERAL ATTACK ON THE NASD'S
ROLE IN ENCOURAGING THE RESTRICTIONS ON SECONDARY MARKET ACTIVITIES
CHALLENGED IN THE REMAINDER OF THE GOVERNMENT'S COMPLAINT.  THE ACTS
CHARGED IN COUNT I FOCUSED IN LARGE PART ON NASD RULES, AND ON
INFORMATION DISTRIBUTED BY THAT ASSOCIATION TO ITS MEMBERS.  /42/
SUBSEQUENTLY THE GOVERNMENT ADVISED THE DISTRICT COURT THAT ITS
COMPLAINT WAS NOT TO BE READ AS A DIRECT ATTACK ON NASD RULES, HOWEVER,
AND IT REPEATED THAT POSITION BEFORE THIS COURT.  /43/ THE GOVERNMENT
NOW CONTENDS THAT ITS COMPLAINT SHOULD BE INTERPRETED AS A CHALLENGE TO
VARIOUS UNOFFICIAL NASD INTERPRETATIONS AND TO APPELLEES' EXTENSION OF
THE RULES IN A MANNER THAT INHIBITS A SECONDARY MARKET. 

IN VIEW OF THE SCOPE OF THE SEC'S REGULATORY AUTHORITY OVER THE
ACTIVITIES OF THE NASD, THE GOVERNMENT'S DECISION TO WITHDRAW FROM
DIRECT ATTACK ON THE ASSOCIATION'S RULES WAS PRUDENT.  THE SEC'S
SUPERVISORY AUTHORITY OVER THE NASD IS EXTENSIVE.  NOT ONLY DOES THE
MALONEY ACT REQUIRE THE SEC TO DETERMINE WHETHER AN ASSOCIATION
SATISFIES THE STRICT STATUTORY REQUIREMENTS OF THAT ACT AND THUS
QUALIFIES TO ENGAGE IN SUPERVISED REGULATION OF THE TRADING ACTIVITIES
OF ITS MEMBERSHIP, 15 U.S.C. 78O - 3 (B), IT REQUIRES REGISTERED
ASSOCIATIONS THEREAFTER TO SUBMIT FOR COMMISSION APPROVAL ANY PROPOSED
RULE CHANGES, 78O - 3(J).  THE MALONEY ACT ADDITIONALLY AUTHORIZES THE
SEC TO REQUEST CHANGES IN OR SUPPLEMENTATION OF ASSOCIATION RULES, A
POWER THAT RECENTLY HAS BEEN EXERCISED WITH RESPECT TO SOME OF THE
PRECISE CONDUCT QUESTIONED IN THIS LITIGATION, SEE N. 31, SUPRA.  IF
SUCH A REQUEST IS NOT COMPLIED WITH, THE SEC MAY ORDER SUCH CHANGES
ITSELF.  78O - 3(K) (2).     THE SEC, IN ITS EXERCISE OF AUTHORITY OVER
ASSOCIATION RULES AND PRACTICES, IS CHARGED WITH PROTECTION OF THE
PUBLIC INTEREST AS WELL AS THE INTERESTS OF SHAREHOLDERS, SEE, E. G.,
15 U.S.C. 78O - 3 (A)(1), (B)(3), AND (C), AND IT REPEATEDLY HAS
INDICATED THAT IT WEIGHS COMPETITIVE CONCERNS IN THE EXERCISE OF ITS
CONTINUED SUPERVISORY RESPONSIBILITY.  SEE, E. G., NATIONAL ASSOCIATION
OF SECURITIES DEALERS, INC., 19 S.E.C. 424, 436 - 437 (1945); NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC., 9 S. E. C., AT 43 - 46; SEE
ALSO 1974 STAFF REPORT 105, 109.  AS THE COURT PREVIOUSLY HAS
RECOGNIZED, UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U. S. 150, 227
N. 60 (1940), THE INVESTITURE OF SUCH PERVASIVE SUPERVISORY SUPERVISORY
AUTHORITY IN THE SEC SUGGESTS THAT CONGRESS INTENDED TO LIFT THE BAN OF
THE SHERMAN ACT FROM ASSOCIATION ACTIVITIES APPROVED BY BY THE SEC. 

WE FURTHER CONCLUDE THAT THE GOVERNMENT'S ATTACK ON NASD
INTERPRETATIONS OF THOSE RULES CANNOT BE MAINTAINED UNDER THE SHERMAN
ACT, FOR WE SEE NO MEANINGFUL DISTINCTION BETWEEN THE ASSOCIATION'S
RULES AND THE MANNER IN WHICH IT CONSTRUES AND IMPLEMENTS THEM.  EACH
IS EQUALLY A SUBJECT OF SEC OVERSIGHT. 

FINALLY, WE HOLD THAT THE GOVERNMENT'S ADDITIONAL CHALLENGES TO THE
ALLEGED ACTIVITIES OF THE MEMBERSHIP OF THE NASD DESIGNED TO ENCOURAGE
THE KINDS OF RESTRAINTS AVERRED IN COUNTS II - VIII LIKEWISE ARE
PRECLUDED BY THE REGULATORY AUTHORITY VESTED IN THE SEC BY THE MALONEY
AND INVESTMENT COMPANY ACTS.  IT SHOULD BE NOTED THAT THE GOVERNMENT
DOES NOT CONTEND THAT APPELLEES' ACTIVITIES HAVE HAD THE PURPOSE OR
EFFECT OF RESTRAINING COMPETITION AMONG THE VARIOUS FUNDS.  /44/
INSTEAD, THE GOVERNMENT URGES IN COUNT I THAT APPELLEES' ALLEGED
CONSPIRACY WAS DESIGNED TO ENCOURAGE THE SUPPRESSION OF INTRAFUND
SECONDARY MARKET ACTIVITIES, PRECISELY THE RESTRICTION THAT THE SEC
CONSISTENTLY HAS APPROVED PURSUANT TO 22(F) FOR NEARLY 35 YEARS.  THIS
CLOSE RELATIONSHIP IS FATAL TO THE GOVERNMENT'S COMPLAINT, AS THE
COMMISSION'S REGULATORY APPROVAL OF THE RESTRICTIVE AGREEMENTS
CHALLENGED IN COUNTS II - VIII CANNOT BE RECONCILED WITH THE
GOVERNMENT'S ATTACK ON THE ANCILLARY ACTIVITIES AVERRED IN COUNT I. AND
THIS CONCLUSION APPLIES WITH EQUAL FORCE NOW THAT THE SEC HAS
DETERMINED TO INTRODUCE A CONTROLLED MEASURE OF COMPETITION INTO THE
SECONDARY MARKET. 

THERE CAN BE LITTLE QUESTION THAT THE BROAD REGULATORY AUTHORITY
CONFERRED UPON THE SEC BY THE MALONEY AND INVESTMENT COMPANY ACTS
ENABLES IT TO MONITOR THE ACTIVITIES QUESTIONED IN COUNT I, AND THE
HISTORY OF COMMISSION REGULATIONS SUGGESTS NO LAXITY IN THE EXERCISE OF
THIS AUTHORITY.  /45/ TO THE EXTENT THAT ANY OF APPELLEES' ANCILLARY
ACTIVITIES FRUSTRATE THE SEC'S REGULATORY OBJECTIVES IT HAS AMPLE
AUTHORITY TO ELIMINATE THEM.  /46/ 

HERE IMPLIED REPEAL OF THE ANTITRUST LAWS IS "NECESSARY TO MAKE THE
(REGULATORY SCHEME) WORK."  SILVER V. NEW YORK STOCK EXCHANGE, 373 U.
S., AT 357.  IN GENERALLY SIMILAR SITUATIONS, WE HAVE IMPLIED IMMUNITY
IN PARTICULAR AND DISCRETE INSTANCES TO ASSURE THAT THE FEDERAL AGENCY
ENTRUSTED WITH REGULATION IN THE PUBLIC INTEREST COULD CARRY OUT THAT
RESPONSIBILITY FREE FROM THE DISRUPTION OF CONFLICTING JUDGMENTS THAT
MIGHT BE VOICED BY COURTS EXERCISING JURISDICTION UNDER THE ANTITRUST
LAWS.  SEE HUGHES TOOL CO. V. TRANS WORLD AIRLINES, 409 U. S. 363
(1973); PAN AMERICAN WORLD AIRWAYS, INC. V. UNITED STATES, 371 U.S. 296
(1963).  IN THIS INSTANCE, MAINTENANCE OF AN ANTITRUST ACTION FOR
ACTIVITIES SO DIRECTLY RELATED TO THE SEC'S RESPONSIBILITIES POSES A
SUBSTANTIAL DANGER THAT APPELLEES WOULD BE SUBJECTED TO DUPLICATIVE AND
INCONSISTENT STANDARDS.  THIS IS HARDLY A RESULT THAT CONGRESS WOULD
HAVE MANDATED.  WE THEREFORE HOLD THAT WITH RESPECT TO THE ACTIVITIES
CHALLENGED IN COUNT I OF THE COMPLAINT, THE SHERMAN ACT HAS BEEN
DISPLACED BY THE PERVASIVE REGULATORY SCHEME ESTABLISHED BY THE MALONEY
AND INVESTMENT COMPANY ACTS. 

      AFFIRMED. 

/1/ THE INVESTMENT COMPANY ACT OF 1940 DEFINES "INVESTMENT COMPANY"
TO INCLUDE ANY ISSUER OF SECURITIES WHICH 

"(1) IS OR HOLDS ITSELF OUT AS BEING ENGAGED PRIMARILY, OR PROPOSES
TO ENGAGE PRIMARILY, IN THE BUSINESS OF INVESTING, REINVESTING, OR
TRADING IN SECURITIES; 

"(2) IS ENGAGED OR PROPOSES TO ENGAGE IN THE BUSINESS OF ISSUING
FACE-AMOUNT CERTIFICATES OF THE INSTALLMENT TYPE, OR HAS BEEN ENGAGED
IN SUCH BUSINESS AND HAS ANY SUCH CERTIFICATE OUTSTANDING; OR 

"(3) IS ENGAGED OR PROPOSES TO ENGAGE IN THE BUSINESS OF INVESTING,
REINVESTING, OWNING, HOLDING, OR TRADING IN SECURITIES, AND OWNS OR
PROPOSES TO ACQUIRE INVESTMENT SECURITIES HAVING A VALUE EXCEEDING 40
PER CENTUM OF THE VALUE OF SUCH ISSUER'S TOTAL ASSETS (EXCLUSIVE OF
GOVERNMENT SECURITIES AND CASH ITEMS) ON AN UNCONSOLIDATED BASIS."  15
U.S.C. 80A - 3 (A).  THIS BROAD DEFINITION IS QUALIFIED, HOWEVER, BY A
SERIES OF SPECIFIC EXEMPTIONS.  SEE 83A - 3 (B) AND (C). 

/2/ SEE 15 U.S.C. 80A - 2 (A)(32), 80A - 22 (E). 

MANAGEMENT INVESTMENT COMPANIES WHOSE SECUIITIES LACK THIS
REDEEMABILITY FEATURE ARE DEFINED AS "CLOSED-END" COMPANIES, 80A - 5,
AND THEIR SALES AND DISTRIBUTION PRACTICES ARE REGULATED UNDER 23 OF
THE ACT.  15 U.S.C. 80A - 23.  SECTION 22 OF THE ACT, THE PROVISION
UNDER CONSIDERATION IN THIS APPEAL, GOVERNS THE SALES AND DISTRIBUTION
PRACTICES OF "OPEN-END" COMPANIES ONLY. 

/3/ IN THIS OPINION WE WILL USE THE TERM "BROKER-DEALER" TO REFER
GENERALLY TO PERSONS REGISTERED UNDER THE SECURITIES EXCHANGE ACT OF
1934, 48 STAT.  895, 15 U.S.C. 780 ET SEQ., AND AUTHORIZED TO EFFECT
TRANSACTIONS OR INDUCE THE PURCHASE OR SALE OF SECURITIES PURSUANT TO
THE AUTHORIZATION OF THAT ACT.  WE ALSO WILL REFER SEPARATELY TO
"BROKERS" AND "DEALERS" AS DEFINED BY THE INVESTMENT COMPANY ACT, SEE
15 U.S.C. 80A - 2 (A)(6) AND (11), TO DESCRIBE THE CAPACITY IN WHICH A
BROKER-DEALER ACTS IN A PARTICULAR TRANSACTION. 

/4/ THE ACT DEFINES "SALES LOAD" TO BE THE DIFFERENCE BETWEEN THE
PUBLIC OFFERING PRICE AND THE PORTION OF THE SALES PROCEEDS THAT IS
INVESTED OR HELD FOR INVESTMENT PURPOSES BY THE ISSUER.  80A - 2
(A)(35).  MOST MUTUAL FUNDS CHARGE THIS SALES LOAD IN ORDER TO
ENCOURAGE VIGOROUS SALES EFFORTS ON THE PART OF UNDERWRITERS AND BROKER
DEALERS.  THERE ARE SOME FUNDS THAT DO NOT CHARGE THIS ADDITIONAL SALES
FEE.  THESE "NO LOAD" FUNDS GENERALLY SELL DIRECTLY TO THE INVESTOR
WITHOUT RELYING ON THE PROMOTIONAL AND SALES EFFORTS OF UNDERWRITERS
AND BROKER-DEALERS.  SEE SEC REPORT OF THE DIVISION OF INVESTMENT
MANAGEMENT REGULATION, MUTUAL FUND DISTRIBUTION AND SECTION 22 (D) OF
THE INVESTMENT COMPANY ACT OF 1940, P. 112 (AUG. 1974) (HEREINAFTER
1974 STAFF REPORT). 

/5/ TWO ADDITIONAL PRIVATE ANTITRUST ACTIONS PREMISED ON SIMILAR
THEORIES WERE FILED IN THE DISTRICT COURT AND SUBSEQUENTLY DISMISSED,
HADDAD V. CROSBY CORP. AND GROSS V. NATIONAL ASSN. OF SECURITIES
DEALERS, INC., 374 F.SUPP.  95 (DC 1973).  THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT STAYED THOSE APPEALS TO AWAIT THE
RESOLUTION OF THIS CASE, AND THE PETITION OF ONE OF THE PARTIES FOR
CERTIORARI BEFORE JUDGMENT WAS DENIED, GROSS V. NATIONAL ASSN. OF
SECURITIES DEALERS, INC., 419 U.S. 843 (1974). 

SUBSEQUENT TO THE FILING OF THE UNITED STATES' COMPLAINT SOME 50
PRIVATE SUITS PURPORTING TO BE CLASS ACTIONS UNDER FED. RULE CIV. PROC.
23 WERE FILED IN VARIOUS DISTRICT COURTS AROUND THE COUNTRY.  THESE
CASES WERE TRANSFERRED TO THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION,
IN RE MUTUAL FUND SALES ANTITRUST LITIGATION, CIVIL ACTION NO. MISC.
103 - 73.  SEE 374 F.SUPP., AT 97 N. 4.  THE DISTRICT COURT DEFERRED
DETERMINATION OF WHETHER THE ACTIONS COULD BE MAINTAINED AS CLASS
ACTIONS UNDER RULE 23 AND ADDITIONALLY POSTPONED DISCOVERY AND OTHER
ACTIVITY PENDING DISPOSITION OF THE MOTION TO DISMISS IN THIS CASE. 
374 F. SUPP., AT 114. 

/6/ THE NASD IS REGISTERED UNDER 15A OF THE SECURITIES EXCHANGE ACT
OF 1934, 15 U.S.C. 780 - 3, THE SO-CALLED MALONEY ACT OF 1938.  THE
MALONEY ACT SUPPLEMENTS THE SECURITIES AND EXCHANGE COMMISSION'S
REGULATION OF THE OVER-THE-COUNTER MARKETS BY PROVIDING A SYSTEM OF
COOPERATIVE SELF-REGULATION THROUGH VOLUNTARY ASSOCIATIONS OF BROKERS
AND DEALERS.  THE ACT PROVIDES THAT ASSOCIATIONS MAY REGISTER WITH THE
COMMISSION PURSUANT TO SPECIFIED TERMS AND CONDITIONS, AND AUTHORIZES
THEM TO PROMULGATE RULES DESIGNED TO PREVENT FRAUDULENT AND
MANIPULATIVE PRACTICES; TO PROMOTE EQUITABLE PRINCIPLES OF TRADE; TO
SAFEGUARD AGAINST UNREASONABLE PROFITS AND CHARGES; AND GENERALLY TO
PROTECT INVESTORS AND THE PUBLIC INTEREST.  780 - 3 (B)(8).  THE ACT
ALSO AUTHORIZES THE SEC TO EXERCISE A SIGNIFICANT OVERSIGHT FUNCTION
OVER THE RULES AND ACTIVITIES OF THE REGISTERED ASSOCIATIONS.  SEE,
E.G., 780 - 3 (B), (E), (H), (J), AND (K).  THE NASD IS PRESENTLY THE
ONLY ASSOCIATION REGISTERED UNDER THIS ACT. 

/7/ THE MUTUAL FUNDS NAMED AS DEFENDANTS IN THIS ACTION ARE
MASSACHUSETTS INVESTORS GROWTH STOCK FUND, INC., FIDELITY FUND, INC.,
AND WELLINGTON FUND, INC. 

/8/ THE DEFENDANT UNDERWRITERS INCLUDE THE CROSBY CORP., VANCE,
SANDERS & CO., AND THE WELLINGTON MANAGEMENT CO. 

/9/ NAMED AS DEFENDANT BROKER-DEALERS ARE THE FOLLOWING:  MERRILL
LYNCH, PIERCE, FENNER & SMITH, INC., BACHE & CO., INC., REYNOLDS
SECURITIES CORP., F. I. DUPONT, GLORE FORGAN, INC., E.F.  HUTTON, INC.,
WALSTON & CO., INC., DEAN WITTER & CO., INC., PAINE, WEBBER, JACKSON &
CURTIS, INC., AND HORNBLOWER & WEEKS-HEMPHILL, NOYES, INC. 

/10/ SECTION 1 OF THE SHERMAN ACT PROVIDES IN PERTINENT PART: 

"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.  . . . "EVERY
PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN ANY COMBINATION OR
CONSPIRACY DECLARED BY SECTIONS 1 TO 7 OF THIS TITLE TO BE ILLEGAL
SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND, ON CONVICTION THEREOF,
SHALL BE PUNISHED BY FINE NOT EXCEEDING FIFTY THOUSAND DOLLARS, OR BY
IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY BOTH SAID PUNISHMENTS, IN
THE DISCRETION OF THE COURT." 

/11/ THE VIOLATIONS ALLEGED IN COUNT II ARE TYPICAL OF THOSE CHARGED
IN COUNTS IV AND VI.  IN COUNT II, APPELLEE CROSBY, A PRINCIPAL
UNDERWRITER OF APPELLEE FIDELITY FUND, INC., IS CHARGED WITH ENTERING
INTO CONTRACTS AND COMBINATIONS WITH APPELLEE BROKER-DEALERS, THE
SUBSTANTIAL TERMS OF WHICH ARE THAT 

"(A) EACH BROKER/DEALER MUST MAINTAIN THE PUBLIC OFFERING PRICE IN
ANY BROKERAGE TRANSACTION IN WHICH IT PARTICIPATES INVOLVING THE
PURCHASE OR SALE OF SHARES OF THE FIDELITY FUNDS; AND 

"(B) EACH BROKER/DEALER MUST SELL SHARES OF THE FIDELITY FUNDS ONLY
TO INVESTORS OR THE FUND AND PURCHASE SUCH SHARES ONLY FROM INVESTORS
OR THE FUND."  APP.  10 - 11.  COUNT VI, IN ADDITION TO CHARGING
RESTRICTIVE AGREEMENTS SIMILAR TO THE ABOVE, ALLEGED THAT APPELLEE
WELLINGTON, A PRINCIPAL UNDERWRITER, AGREED TO ACT ONLY AS AN AGENT OF
THE APPROPRIATE MUTUAL FUND IN ALL TRANSACTIONS WITH THE BROKER
DEALERS.  ID., AT 15. 

THE ALLEGED EFFECT OF THE RESTRICTIVE AGREEMENT CHARGED IN (A) WAS
TO INHIBIT THE GROWTH AND DEVELOPMENT OF A BROKERAGE MARKET IN MUTUAL
FUND SHARES.  THE ALLEGED EFFECT OF THE RESTRICTION IDENTIFIED IN (B),
BY CONTRAST, WAS TO INHIBIT INTERDEALER TRANSACTIONS AND THUS TO
RESTRICT THE GROWTH AND DEVELOPMENT OF A SECONDARY DEALER MARKET.  APP.
11. 

/12/ THE COURT NOTED PROBABLE JURISDICTION ON OCTOBER 15, 1974.  419
U.S. 822.  ACCORDINGLY, THE RECENT AMENDMENTS TO THE EXPEDITING ACT, 15
U.S.C. 29, AS AMENDED BY 88 STAT. 1709, 15 U.S.C.A. 29 (FEB. 1975
SUPP.), DO NOT AFFECT OUR JURISDICTION. 

/13/ FOR EXAMPLE, THE ACT REQUIRES COMPANIES TO REGISTER WITH THE
SEC, 15 U.S.C. 80A - 8, SEE ALSO 80A - 7.  COMPANIES ALSO MUST REGISTER
ALL SECURITIES THEY ISSUE, SEE SECURITIES ACT OF 1933, 15 U.S.C. 77F;
INVESTMENT COMPANY ACT, 15 U.S.C. 80A - 24 (A), AND MUST SUBMIT FOR SEC
INSPECTION COPIES OF THE SALES LITERATURE THEY SEND TO PROSPECTIVE
INVESTORS.  80A - 24 (B).  THE INVESTMENT COMPANY ACT REQUIRES THE
SUBMISSION AND PERIODIC UPDATING OF DETAILED FINANCIAL REPORTS AND
DOCUMENTATION AND THE SEMIANNUAL TRANSMISSION OF REPORTS CONTAINING
SIMILAR INFORMATION TO THE SHAREHOLDERS.  80A - 29.  IT ALSO IMPOSES
CONTROLS AND RESTRICTIONS ON THE INTERNAL MANAGEMENT OF INVESTMENT
COMPANIES:  ESTABLISHING MINIMUM CAPITAL REQUIREMENTS, 80A - 14;
LIMITING PERMISSIBLE METHODS FOR SELECTING DIRECTORS, 80A - 16; AND
ESTABLISHING CERTAIN QUALIFICATIONS FOR PERSONS SEEKING TO AFFILIATE
WITH THE COMPANIES, 80A - 9.  FINALLY, THE ACT IMPOSES A NUMBER OF
CONTROLS ON THE INTERNAL PRACTICES OF INVESTMENT COMPANIES.  FOR
EXAMPLE, IT REQUIRES A MAJORITY SHAREHOLDER VOTE FOR CERTAIN
FUNDAMENTAL BUSINESS DECISIONS, 80A - 13, AND LIMITS CERTAIN DIVIDEND
DISTRIBUTIONS, 80A - 19.  SEE GENERALLY THE MUTUAL FUND INDUSTRY:  A
LEGAL SURVEY, 44 NOTRE DAME LAW.  732 (1969). 

/14/ H. R. DOC. NO. 279, 76TH CONG., 1ST SESS. (1940) (HEREINAFTER
INVESTMENT TRUST STUDY PT. III).  PART I OF THE INVESTMENT TRUST STUDY
IS PRINTED AS H. R. DOC. NO. 707, 75TH CONG., 3D SESS. (1938).  PART II
OF THE STUDY IS PRINTED AS H. R. DOC. NO. 70, 76TH CONG., 1ST SESS.
(1939) (HEREINAFTER INVESTMENT TRUST STUDY PT. II).  FOR ADDITIONAL
DISCUSSION OF THE OPERATIONS OF OPEN-END MANAGEMENT INVESTMENT
COMPANIES, SEE 1974 STAFF REPORT; SEC REPORT OF THE STAFF ON THE
POTENTIAL ECONOMIC IMPACT OF A REPEAL OF SECTION 22(D) OF THE
INVESTMENT COMPANY ACT OF 1940 (NOV. 1972); H.R. REP. NO. 2337, 89TH
CONG., 2D SESS. (1966); SEC REPORT OF THE SPECIAL STUDY OF SECURITIES
MARKETS, C. XI--OPEN-END INVESTMENT COMPANIES (MUTUAL FUNDS), H. R.
DOC. NO. 95, PT. 4, 88TH CONG., 1ST SESS. (1963) (HEREINAFTER 1963
SPECIAL STUDY).     /15/ THE BROKER-DEALERS OPERATING WITHIN THE
PRIMARY DISTRIBUTION SYSTEM ARE DEMONINATED "CONTACT DEALERS" IN THE
STUDY AND WILL BE SO IDENTIFIED IN THIS OPINION. 

/16/ THE STUDY INDICATES THAT MUTUAL FUNDS INCREASINGLY BEGAN TO
DISCLOSE MORE INFORMATION ABOUT THE EXISTENCE AND OPERATION OF THE TWO
PRICE SYSTEM.  SEE INVESTMENT TRUST STUDY PT. III, PP. 867 - 868.  AND
IN SOME INSTANCES THE FUNDS ENCOURAGED BROKER-DEALERS TO EXPLAIN TO
POTENTIAL INCOMING INVESTORS THE IMMEDIATE APPRECIATION IN INVESTMENT
VALUE THAT COULD BE OBTAINED FORM THE PRICING SYSTEM IN THE HOPE OF
ENCOURAGING THE PURCHASE OF SHARES.  ID., AT 854.  SEE HEARINGS ON S.
3580 BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON BANKING AND
CURRENCY, 76TH CONG., 3D SESS., PT. 1, P. 138 (1940) (HEREINAFTER 1940
SENATE HEARINGS). 

/17/ THE EXISTING SHAREHOLDERS' EQUITY INTERESTS WERE DILUTED
BECAUSE THE INCOMING INVESTORS BOUGHT INTO THE FUND AT LESS THAN THE
ACTUAL VALUE OF THE SHARES AT THE TIME OF PURCHASE.  MOREOVER, SEC
TESTIMONY INDICATED THAT THIS DILUTION COULD BE SUBSTANTIAL.  IN ONE
INSTANCE THE COMMISSION CALCULATED THAT THE TWO-PRICE SYSTEM RESULTED
IN A LOSS TO EXISTING SHAREHOLDERS OF ONE TRUST OF SOME $133,000 IN A
SINGLE DAY ID., AT 139 - 140. 

/18/ CONTRACT DEALERS TRADING FROM AN INVENTORY POSITION OFTEN COULD
OBTAIN AN ADDITIONAL PROFIT FROM THE SALES LOAD.  WHEN THE DEALER ACTED
AS AN AGENT FOR THE FUND AND TRADED FROM THE PRIMARY DISTRIBUTION
SYSTEM, THE DEALER AND THE UNDERWRITER DIVIDED THE LOAD CHARGE IN
ACCORDANCE WITH THE SALES AGREEMENT.  BUT THE DEALER COULD RETAIN THE
FULL LOAD WHEN HE FILLED THE PURCHASE ORDER FROM AN INVENTORY POSITION
IN SHARES PURCHASED FROM RETIRING SHAREHOLDERS OR OTHER DEALERS. 
INVESTMENT TRUST STUDY PT. III, PP. 858 - 859. 

/19/ SECTIONS 22 (A) AND (C) REFLECT THE SAME BASIC RELATIONSHIP
BETWEEN THE SEC AND THE NASD THAT IS ESTABLISHED BY THE MALONEY ACT. 
SEE N. 6, SUPRA.  SECTION 22 (A) AUTHORIZES REGISTERED SECURITIES
ASSOCIATIONS, IN THIS CASE THE NASD, TO PRESCRIBE RULES FOR THE
REGULATION OF THESE MATTERS.  15 U.S.C. 80A - 22 (A).  THE INDUSTRY
THUS IS AFFORDED THE INITIAL OPPORTUNITY TO POLICE ITS OWN PRACTICES. 
IF, HOWEVER, INDUSTRY SELF-REGULATION PROVES INSUFFICIENT, 22 (C)
AUTHORIZES THE COMMISSION TO MAKE RULES AND REGULATIONS "COVERING THE
SAME SUBJECT MATTER, AND FOR THE ACCOMPLISHMENT OF THE SAME ENDS AS ARE
PRESCRIBED IN SUBSECTION (A)," AND PROCLAIMS THAT THE SEC RULES AND
REGULATIONS SUPERSEDE ANY INCONSISTENT RULES OF THE REGISTERED
SECURITIES ASSOCIATION.  15 U.S.C. 80A - 22 (C). 

SHORTLY AFTER ENACTMENT OF THE INVESTMENT COMPANY ACT THE NASD
PROPOSED, AND THE SEC APPROVED, A RULE ESTABLISHING TWICE-DAILY
PRICING.  SEE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., 9
S.E.C. 38 (1941).  TWICE-DAILY PRICING REDUCED THE TIME PERIOD IN WHICH
PERSONS COULD ENGAGE IN RISKLESS TRADING AND CORRESPONDINGLY DECREASED
THE POTENTIAL FOR DILUTION.  THE COMMISSION SUBSEQUENTLY PROVIDED FULL
PROTECTION AGAINST THE DILUTIVE EFFECTS OF RISKLESS TRADING.  IN LATE
1968 IT EXERCISED ITS AUTHORITY UNDER 22 (C) TO ADOPT RULE 22C - 1,
WHICH REQUIRES ALL FUNDS TO ESTABLISH "FORWARD PRICING."  FORWARD
PRICING ELIMINATES THE POTENTIAL FOR RISKLESS TRADING ALTOGETHER.  SEE
ADOPTION OF RULE 22C - 1, INVESTMENT COMPANY ACT REL. NO. 5519 (1968),
(1967 - 1969 TRANSFER BINDER) CCH FED. SEC. L. REP. 77,616; 17 CFR
27022C - 1 (1974). 

/20/ THIS SECTION PROVIDES IN PERTINENT PART: 

"NO REGISTERED INVESTMENT COMPANY SHALL SELL ANY REDEEMABLE SECURITY
ISSUED BY IT TO ANY PERSON EXCEPT EITHER TO OR THROUGH A PRINCIPAL
UNDERWRITER FOR DISTRIBUTION OR AT A CURRENT PUBLIC OFFERING PRICE
DESCRIBED IN THE PROSPECTUS, AND, IF SUCH CLASS OF SECURITY IS BEING
CURRENTLY OFFERED TO THE PUBLIC BY OR THROUGH AN UNDERWRITER, NO
PRINCIPAL UNDERWRITER OF SUCH SECURITY AND NO DEALER SHALL SELL ANY
SUCH SECURITY TO ANY PERSON EXCEPT A DEALER, A PRINCIPAL UNDERWRITER,
OR THE ISSUER, EXCEPT AT A CURRENT PUBLIC OFFERING PRICE DESCRIBED IN
THE PROSPECTUS."  15 U.S.C. 80A - 22 (D). 

/21/ THE INVESTMENT COMPANY ACT DEFINES A "DEALER" TO BE: 

"(ANY PERSON REGULARLY ENGAGED IN THE BUSINESS OF BUYING AND SELLING
SECURITIES FOR HIS OWN ACCOUNT, THROUGH A BROKER OR OTHERWISE, BUT DOES
NOT INCLUDE A BANK, INSURANCE COMPANY, OR INVESTMENT COMPANY, OR ANY
PERSON INSOFAR AS HE IS ENGAGED IN INVESTING, REINVESTING, OR TRADING
IN SECURITIES, OR IN OWNING OR HOLDING SECURITIES, FOR HIS OWN ACCOUNT,
EITHER INDIVIDUALLY OR IN SOME FIDUCIARY CAPACITY, BUT NOT AS A PART OF
A REGULAR BUSINESS."  15 U.S.C. 80A - 2 (A) (11).  A "BROKER,"  BY
CONTRAST, IS DEFINED TO BE: 

"(ANY PERSON ENGAGED IN THE BUSINESS OF EFFECTING TRANSACTIONS IN
SECURITIES FOR THE ACCOUNT OF OTHERS, BUT DOES NOT INCLUDE A BANK OR
ANY PERSON SOLELY BY REASON OF THE FACT THAT SUCH PERSON IS AN
UNDERWRITER FOR ONE OR MORE INVESTMENT COMPANIES."  80A - 2 (A)(6). 

/22/ CONGRESS EMPLOYED THE TERM "BROKER" WITHOUT REFERENCE TO
"DEALER" IN VARIOUS SECTIONS OF THE ACT.  SEE 80A - 3 (C) (2), 80A - 10
(B) (1), 80A - 17 (E) (1) AND (2).  IN OTHER INSTANCES, THE ACT REFERS
TO "DEALER" WITHOUT REFERENCE TO "BROKER," SEE 80A - 2 (A) (40), 80A -
22 (C) AND (D).  AND IN SOME CASES, INCLUDING THE VERY DEFINITION OF
THE TERM "DEALER" ITSELF, SEE N. 21, SUPRA, THE ACT REFERS TO BOTH
"BROKER" AND "DEALER" IN THE SAME PROVISION, SEE 80A - 1 (B) (2), 80A -
9 (A) (1) AND (2), AND 80A - 30 (A).  FINALLY, THE ACT IN SOME CASES
REFERS TO THE MORE GENERAL TERM "BROKER-DEALER," SEE 80A - 22 (B) (1)
AND (2). 

/23/ THE ORGINAL COMMISSION-SPONSORED BILL CONSIDERED IN THE INITIAL
HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE BANKING AND COMMERCE
COMMITTEE, S. 3580, 76TH CONG., 3D SESS. (1940), CONTAINED NO PROVISION
RESEMBLING THIS SUBSECTION.  SECTION 22 (D) FIRST EMERGED IN A
COMPROMISE PROPOSAL ADVANCED AFTER A PERIOD OF INTENSIVE CONSULTATION
BETWEEN THE SEC AND INDUSTRY REPRESENTATIVES THAT FOLLOWED INITIAL
SENATE HEARINGS, SEE 1940 SENATE HEARINGS, PT. 4, PP. 1105 - 1107, AND
THE COMMISSION SUBSEQUENTLY HAS INDICATED THAT THIS PROVISION WAS
SUGGESTED BY THE INDUSTRY.  SEE MIDAMERICA MUTUAL FUND, INC., 41 S. E.
C. 328, 331 (1963); H. R. REP. NO. 2337, 89TH CONG., 2D SESS., 219
(1966).  REVISED LEGISLATION REFLECTING THIS COMPROMISE WAS SUBMITTED,
AND FURTHER HEARINGS WERE CONDUCTED IN THE SENATE AND THE HOUSE.  BOTH
BILLS WERE REPORTED FAVORABLY BY THEIR RESPECTIVE COMMITTEES, S. REP.
NO. 1775, 76TH CONG., 3D SESS. (1940); H. R. REP. NO. 2639, 76TH CONG.,
3D SESS. (1940), AND THE HOUSE BILL, WITH MINOR AMENDMENTS NOT RELEVANT
TO THIS APPEAL, WAS ACCEPTED BY THE SENATE.  86 CONG. REC. 10069 -
10071 (1940). 

THIS HISTORY PERHAPS EXPLAINS THE DEARTH OF DISCUSSION RELATING TO
22 (D).  THE MAJORITY OF THE SENATE HEARINGS WERE COMPLETED BEFORE THIS
PROVISION WAS ADVANCED, AND BOTH THE SENATE AND HOUSE HEARINGS THAT
FOLLOWED PROVIDE RELATIVELY LITTLE ILLUMINATION AS TO THE INTENDED
PURPOSE OR SCOPE OF THIS SUBSECTION. 

/24/ INSIDER TRADING ABUSES WERE IDENTIFIED AS A PROBLEM DURING THE
SENATE HEARINGS THAT PRECEDED SUBMISSION OF THE COMPROMISE BILL
CONTAINING 22 (D), SEE 1940 SENATE HEARINGS, PT. 2, PP. 526 - 527 AND
660 - 661.  AT THE CLOSE OF THE INITIAL SENATE HEARINGS AS INDUSTRY
REPRESENTATIVE SUGGESTED THAT THE ACT SHOULD CONTAIN A PROVISION
PROHIBITING SALES AT PREFERENTIAL TERMS TO INSIDERS AND OTHERS.  ID.,
AT 1057.  THE COMMISSION AND INDUSTRY REPRESENTATIVES THEREAFTER MET TO
SEEK A COMPROMISE ON THE VARIOUS DIFFERENCES THAT HAD BEEN IDENTIFIED
IN THE SENATE HEARINGS, AND THE INDUSTRY MEMORANDUM OUTLINING THE
NATURE OF THE RESULTANT AGREEMENT AGAIN INDICATED THAT A PROVISION
SHOULD BE ADDED TO THE ACT TO PROHIBIT INSIDER TRADING.  SEE FRAMEWORK
OF PROPOSED INVESTMENT COMPANY BILL (TITLE I), MEMORANDUM EMBODYING
SUGGESTIONS RESULTING FROM CONFERENCES BETWEEN SECURITIES AND EXCHANGE
COMMISSION AND REPRESENTATIVES OF INVESTMENT COMPANIES (MAY 13, 1940),
PRINTED IN HEARINGS ON H. R. 10065 BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 76TH CONG., 3D SESS., 99
(1940). 

/25/ THE INSIDER-TRADING PROHIBITION IS COMPLEMENTED BY 22 (G),
WHICH PRECLUDES ISSUANCE OF MUTUAL FUND SHARES FOR SERVICES OR PROPERTY
OTHER THAN CASH OR SECURITIES.  15 U.S.C. 80A - 22 (G). 

/26/ SEE ADOPTION OF RULE N-22D - 1, INVESTMENT COMPANY ACT R REL.
NO. 2798, P. 1 (1958), (1957 - 1961 TRANSFER BINDER) CCH FED. SEC. L.
REP. 76, 625, P. 80,393; INVESTORS DIVERSIFIED SERVICES, INC.,
INVESTMENT COMPANY ACT REL. NO. 3015 (1960), (1957 - 1961 TRANSFER
BINDER) CCH FED. SEC. L. REP. 76,699, P. 80,620; IN RE SIDERIS,
SECURITIES EXCHANGE ACT REL. NO. 8816, P. 2 (1970); MUTUAL FUNDS
ADVISORY, INC., INVESTMENT COMPANY ACT REL. NO. 6932, P. 4 (1972). 

THE SEC ALSO HAS SUGGESTED THAT PREVENTING DISCRIMINATION AMONY
INVESTORS WAS ONE OF THE PURPOSES OF THIS PROVISION.  SEE, E.G., IN RE
SIDERIS, SUPRA; MIDAMERICA MUTUAL FUND, INC., 41 S.E.C., AT 331;
ADOPTION OF RULE N-22D - 1, SUPRA.  BUT WE DO NOT THINK THAT BROKERAGE
TRANSACTIONS INEVITABLY WOULD FOSTER THE KIND OF INVESTOR
DISCRIMINATION SOUGHT TO BE REMEDIED BY THIS STATUTE.  ALL INVESTORS
WOULD BE EQUALLY FREE TO SEEK TO ENGAGE IN BROKERED TRANSACTIONS, AND
THE POSSIBILITY THAT THE MORE SOPHISTICATED OR FORTUITOUS INVESTOR
WOULD PROFIT FROM THIS MARKET DOES NOT, BY ITSELF, BRING THIS CATEGORY
THIS STATUTE.  ALLL INVESTORS WOULD BE EQUALLY FREE TO SEEK TO ENGAGE
OF TRANSACTIONS WITHIN THE PURVIEW OF 22 (D). 

/27/ RESPONDING TO INQUIRIES CONCERNING THE RELATIONSHIP OF 22(D) AND
THE OPERATION OF STATE LAW, CHAIRMAN COHEN STATED: 

"THE STATUTE IS UNEQUIVOCAL.  NO PERSON, NO MATTER WHERE HE GETS IT,
FROM THE ISSUER, FROM ANOTHER DEALER, OR EVEN FROM A PRIVATE PERSON, NO
BROKER-DEALER MAY SELL A SHARE OF A PARTICULAR FUND AT A PRICE LESS
THAN THAT FIXED BY THE ISSUER."  HEARINGS ON THE INVESTMENT COMPANY ACT
AMENDMENTS OF 1967 BEFORE THE SUBCOMMITTEE ON COMMERCE AND FINANCE OF
THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 90TH CONG., 1ST
SESS., PT. 2, P. 711(1967). 

/28/ ID., PT. 1, AT 53. 

/29/ SENATOR SPARKMAN, CHAIRMAN OF THE SENATE BANKING AND CURRENCY
COMMITTEE WHICH REPORTED THE 1970 AMENDMENTS TO THE FULL SENATE, STATED
ON THE FLOOR OF THE SENATE THAT 22(D) "NOW MAKES IT A FEDERAL CRIME FOR
ANYONE TO SELL MUTUAL FUND SHARES AT A PRICE LOWER THAN THAT FIXED BY
THE FUND'S DISTRIBUTOR."  115 CONG. REC. 838(1969) (EMPHASIS ADDED). 
SENATOR MAGNUSON REFLECTED PERHAPS A SIMILAR VIEW, STATING THAT, AS A
RESULT OF 22(D), "MUTUAL FUND SALES CHARGES ARE TOTALLY INSULATED FROM
PRICE COMPETITION."  114 CONG.  REC. 23057 (1968) (EMPHASIS ADDED). 

THE TESTIMONY OF SOME WITNESSES SUGGESTS THAT THEY SHARED THIS
EXPANSIVE VIEW.  SEE, E. G., HEARINGS ON S. 1659 BEFORE THE SENATE
COMMITTEE ON BANKING AND CURRENCY, 90TH CONG., 1ST SESS., PT. 2, P. 741
(1967) (HEREINAFTER 1967 SENATE HEARINGS) (TESTIMONY OF MR. FUNSTON,
PRESIDENT OF THE NEW YORK STOCK EXCHANGE); ID., AT PT. 1,PP. 348, 356
(TESTIMONY OF PROFESSOR SAMUELSON); ID., AT PT. 2, P. 1064 (TESTIMONY
OF PROFESSOR WALLICH). 

/30/ WE CONCLUDE, HOWEVER, THAT THE CONTEXT OF THE POST-ENACTMENT
HISTORY OF 22(D) LIMITS THE FORCE OF THE STATEMENTS RELIED UPON BY
APPELLEES.  A BROKER-DEALER CAN SERVE IN EITHER A BROKER'S OR A
DEALER'S CAPACITY, AND THE DISTINCTION BETWEEN THE TWO FUNCTIONS IS
RATHER TECHNICAL AND PRECISE.  THE PARTIES ARE IN GENERAL AGREEMENT
THAT NO SIGNIFICANT NUMBER OF BROKERED TRANSACTIONS, AS STATUTORILY
DEFINED, EXISTED PRIOR OR SUBSEQUENT TO PASSAGE OF THE ACT.  IN VIEW OF
THE CARE WITH WHICH THE STATUTE DEFINES THESE FUNCTIONS AND THE ABSENCE
OF FOCUS ON THESE DISTINCTIONS IN THE STATEMENTS IN THE SUBSEQUENT
CONSIDERATION OF 22(D), WE THINK THAT THE BROADER CHARACTERIZATIONS OF
THAT SECTION MUST BE VIEWED WITH SOME SKEPTICISM. 

/31/ ACTING IN ACCORDANCE WITH THE RECOMMENDATIONS OF THE STAFF
REPORT, THE SEC CHAIRMAN RECENTLY REQUESTED THAT THE NASD AMEND ITS
RULES OF FAIR PRACTICE TO PROHIBIT AGREEMENTS BETWEEN UNDERWRITERS AND
BROKER-DEALERS THAT PRECLUDE BROKER-DEALERS, ACTING AS AGENTS, "FROM
MATCHING ORDERS TO BUY AND SELL FUND SHARES IN A SECONDARY MARKET AT
COMPETITIVELY DETERMINED PRICES AND COMMISSION RATES.  " LETTER FROM
MR. RAY GARRETT, JR., CHAIRMAN OF THE SEC TO MR. GORDON S. MACKLIN,
PRESIDENT OF THE NASD, NOV. 22, 1974, PRINTED IN BRIEF FOR APPELLEES
BACHE & CO. ET AL., ADD.  18.  THE CHAIRMAN FURTHER REVEALED THE SEC'S
INTENTION TO EXERCISE ITS REGULATORY AUTHORITY UNDER 22(F) TO
NEUTRALIZE ANY ADVERSE EFFECTS THIS MARKET MIGHT HAVE ON THE FUND'S
PRIMARY DISTRIBUTION SYSTEM.  ID., AT ADD.  19.  AS THE STAFF REPORT
INDICATES, THE COMMISSION'S EXERCISE OF REGULATORY AUTHORITY IS
PREMISED ON ITS VIEW THAT 22(D) DOES NOT REQUIRE STRICT PRICE
MAINTENANCE IN BROKERED TRANSACTIONS.  SEE 1974 STAFF REPORT 104.  IF
22(D) DID CONTROL THESE TRANSACTIONS AS WELL AS "DEALER " SALES, THE
COMMISSION'S ABILITY TO ENCOURAGE CONTROLLED COMPETITION IN THIS MARKET
WOULD BE SUBJECT TO QUESTION. 

/32/ THE DEPARTMENT OF JUSTICE PREVIOUSLY SUGGESTED A MANNER IN
WHICH ITS INTERPRETATION OF 22(D) COULD BE RECONCILED WITH THE
COMMISSION'S EXERCISE OF REGULATORY AUTHORITY OVER BROKERED
TRANSACTIONS.  ADDRESSING THE QUESTION OF POSSIBLE REPEAL OF 22(D), THE
JUSTICE DEPARTMENT SUGGESTED THAT RATHER THAN CONTINUE TO WAIT FOR
CONGRESSIONAL REPEAL, THE COMMISSION SHOULD ELIMINATE THE ADVERSE
EFFECTS OF PRICE MAINTENANCE BY FREEING ALL TRANSACTIONS FROM THE 22(D)
MANDATE THROUGH THE EXERCISE OF ITS 6(C) POWER OF EXEMPTION, 15 U.S.C.
80A - 6(C).  1974 STAFF REPORT 70.  THIS PRESUMABLY WOULD LEAVE THE SEC
FREE TO REGULATE TRANSACTIONS THROUGH THE EXERCISE OF THE POWERS
CONFERRED TO IT BY OTHER PROVISIONS OF THE ACT.  WE NEED NOT CONSIDER
THE VALIDITY OF THE JUSTICE DEPARTMENT'S BROAD INTERPRETATION OF THE
SEC'S POWER OF EXEMPTION, FOR EVEN ASSUMING IT TO BE CORRECT OUR
ANALYSIS WOULD NOT BE AFFECTED.     /33/ SECTION 22(F) OF THE ACT, 15
U.S.C. 80A - 22(F), PROVIDES: 

"NO REGISTERED OPEN-END COMPANY SHALL RESTRICT THE TRANSFERABILITY
OR NEGOTIABILITY OF ANY SECURITY OF WHICH IT IS THE ISSUER EXCEPT IN
CONFORMITY WITH THE STATEMENTS WITH RESPECT THERETO CONTAINED IN ITS
REGISTRATION STATEMENT NOR IN CONTRAVENTION OF SUCH RULES AND
REGULATIONS AS THE COMMISSION MAY PRESCRIBE IN THE INTERESTS OF THE
HOLDERS OF ALL OF THE OUTSTANDING SECURITIES OF SUCH INVESTMENT
COMPANY.  " 

/34/ SECTION 22(D) OF THE ORIGINAL BILL, S. 3580, 76TH CONG., 3D
SESS. (1940), PROVIDED , IN PERTINENT PART: 

"THE COMMISSION IS AUTHORIZED, BY RULES AND REGULATIONS OR ORDER IN
THE PUBLIC INTEREST OR FOR THE PROTECTION OF INVESTORS, TO PROHIBIT-- 

"(2) RESTRICTIONS UPON THE TRANSFERABILITY OR NEGOTIABILITY OF ANY
REDEEMABLE SECURITY OF WHICH ANY REGISTERED INVESTMENT COMPANY IS THE
ISSUER." 

/35/ TESTIFYING BEFORE THE SENATE SUBCOMMITTEE, AN SEC SPOKESMAN
STATED: 

"NOW COMING TO SUBPARAGRAPH (2) OF (D), IT JUST SAYS THAT THE
COMMISSION SHALL HAVE THE RIGHT TO MAKE RULES AND REGULATIONS WITH
RESPECT TO ANY RESTRICTIONS UPON THE TRANSFERABILITY OR NEGOTIABILITY
OF ANY REDEEMABLE SECURITY OF WHICH ANY REGISTERED INVESTMENT COMPANY
IS THE ISSUER. 

"THERE ARE SOME COMPANIES THAT HAVE A PROVISION IN THEIR
CERTIFICATES TO THE EFFECT THAT YOU CANNOT SELL THAT CERTIFICATE TO
ANYBODY ELSE, AND THE ONLY WAY YOU CAN SELL IT IS TO SELL IT BACK TO
THE COMPANY.  THAT IS A TECHNICAL PROBLEM.  IT PRESENTS A WHOLE PROBLEM
WHICH THEY CALL THE BOOTLEG MARKET.  WHAT HAPPENS IS THAT DEALERS KEEP
SWITCHING PEOPLE FROM ONE COMPANY TO ANOTHER.  IN ORDER TO PREVENT
THESE SWITCHES, SOME PROVISIONS REQUIRE THAT YOU CANNOT MAKE THESE
SWITCHES BUT MUST SELL THE CERTIFICATE BACK TO THE COMPANY.  . . . 

"IF THE COMMITTEE WANTS THE PROVISION, WE SHALL RECOMMEND WHAT, ON
THE BASIS OF OUR EXPERIENCE UP TO THE PRESENT TIME, IT OUGHT TO BE; BUT
WE THINK SUBJECTS LIKE THAT OUGHT TO BE A MATTER OF RULES AND
REGULATIONS."  1940 SENATE HEARINGS, PT. 1, PP. 292 - 293. 

/36/ NEITHER ARE WE CONVINCED OF THE NECESSITY TO LIMIT
NEGOTIABILITY OR TRANSFERABILITY RESTRICTIONS TO THOSE APPEARING ON THE
FACE OF THE CERTIFICATE IN ORDER TO ASSURE THEIR ADEQUATE DISCLOSURE TO
INVESTORS.  SECTION 24 OF THE ACT REQUIRES THAT MUTUAL FUNDS SUBMIT FOR
SEC INSPECTION COPIES OF ALL SALES LITERATURE THAT THEY SEND TO
PROSPECTIVE INVESTORS.  15 U.S.C. 80A - 24(B).  THE COMMISSION IS
THEREFORE FULLY APPRISED AS TO THE NATURE AND SUFFICIENCY OF THE
DISCLOSURE OF THESE RESTRICTIONS AND CAN, IF NECESSARY, REQUIRE
SUPPLEMENTATION OF THE INFORMATION PROVIDED INVESTORS. 

/37/ NEITHER DO WE AGREE WITH THE GOVERNMENT'S SUGGESTION THAT 22
(F) DOES NOT AUTHORIZE RESTRICTIONS IN CONTRACTS BETWEEN UNDERWRITERS
AND DEALERS IN WHICH THE FUND IS NOT A PARTY.  WE NOTE, PRELIMINARILY,
THAT THIS POSITION WOULD NOT SAVE COUNTS III, V, AND VII FROM DISMISSAL
, SINCE THEY RELATE TO RESTRICTIONS ON UNDERWRITER CONDUCT THAT ARE
IMPOSED BY THE FUND.  EVEN UNDER THE MOST TECHNICAL READING OF THE
STATUTE THESE RESTRICTIONS ARE "FUND-IMPOSED.  " MOREOVER, IT FURTHER
APPEARS FROM THE COMPLAINT THAT THE AGREEMENT CHALLENGED IN COUNT II IS
REQUIRED BY THE FUND-UNDERWRITER AGREEMENT CHALLENGED IN COUNT III AND
THUS ALSO IS "FUND-IMPOSED" IN ANY BUT THE MOST LITERAL SENSE.  MORE
IMPORTANTLY, HOWEVER, WE THINK THAT THE GOVERNMENT'S POSITION FAILS TO
RECOGNIZE THE RELATIONSHIP BETWEEN THE VARIOUS PARTICIPANTS IN THE
DISTRIBUTION CHAIN.  AS THE HISTORY OF THE INVESTMENT COMPANY ACT
RECOGNIZES, THE RELATIONSHIP BETWEEN THE FUND AND ITS PRINCIPAL
UNDERWRITER TRADIIONALLY HAS BEEN A CLOSE ONE.  SECTIONS 15(B) AND (C)
REFLECT THIS FACT, REQUIRING, IN EFFECT, THAT FUNDS ESTABLISH WRITTEN
CONTRACTS WITH THE UNDERWRITER THAT MUST BE APPROVED BY A MAJORITY OF
THE FUND'S DISINTERESTED DIRECTORS AND CANNOT REMAIN IN FORCE FOR MORE
THAN TWO YEARS.  15 U.S.C. 80A - 15(B) AND (C).  AND NASD RULE 26(C) ,
IN EFFECT SINCE 1941, REQUIRES THAT PRINCIPAL UNDERWRITERS ENTER INTO
AGREEMENTS WITH THE DEALERS WHO DISTRIBUTE THE FUND'S SECURITIES.  SEE
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., 9 S. E. C., AT 44,
48.  IN VIEW OF THESE REQUIREMENTS, AND THE BROAD REMEDIAL PURPOSE OF
22(F), WE THINK THAT THE UNDERWRITER-DEALER AGREEMENTS CHALLENGED IN
THIS COMPLAINT ALSO MUST BE REGARDED AS FUND IMPOSED WITHIN THE
CONTEMPLATION OF THE STATUTE. 

/38/ SEE 1940 SENATE HEARINGS, PT. 1, P. 293. 

/39/ COMMISSIONER LOOMIS, DISSENTING FROM AN SEC DETERMINATION THAT
AN APPLICANT LACKED STANDING TO SEEK AN EXEMPTION FROM 17(A) (1) AND
22(D) OF THE ACT, STATED: 

"I WOULD CONCLUDE THAT APPLICANT IS A DEALER IN ITS RELATIONSHIP
WITH THE FUND UNDERWRITER BECAUSE TO DO OTHERWISE WOULD REQUIRE US TO
IGNORE OR NULLIFY THE PERFECTLY LAWFUL REQUIREMENT IN THE DEALER
AGREEMENTS THAT APPLICANT ACT AS A DEALER.  . . . I DO NOT KNOW OF
ANYTHING UNLAWFUL ABOUT THE GENERALLY ACCEPTED FORM OF DEALER AGREEMENT
USED IN THE INVESTMENT COMPANY INDUSTRY."  MUTUAL FUNDS ADVISORY. 
INC., INVESTMENT COMPANY ACT REL. NO. 6932, P. 7 (1972) (DISSENTING
OPINION).  WHILE THE MAJORITY DISAGREED WITH COMMISSIONER LOOMIS'
ASSESSMENT OF THE FACTS OF THE CASE, IT DID NOT QUESTION HIS APPROVAL
OF THE MENTIONED DEALER AGREEMENT. 

/40/ SEE 1963 SPECIAL STUDY 98; 1974 STAFF REPORT 104 - 106. 

/41/ THE SEC MAINTAINS: 

"IT WOULD NULLIFY THE EFFECT OF THIS GRANT OF REGULATORY AUTHORITY
TO THE COMMISSION (UNDER 22(F)) FOR THIS COURT TO HOLD THAT A DISTRICT
COURT MAY APPLY ANTITRUST PRINCIPLES TO CONDUCT LIKE THAT ALLEGED IN
COUNTS II THROUGH VIII, WHEN THE EXPERT BODY DESIGNATED AND EMPOWERED
BY CONGRESS TO REGULATE AND SUPERVISE THAT CONDUCT HAS NOT HERETOFORE
DEEMED IT APPROPRIATE TO PROHIBIT THE CONDUCT.  " BRIEF FOR THE
SECURITIES AND EXCHANGE COMMISSION AS AMICUS CURIAE 54. 

/42/ THE COMPLAINT AVERRED THAT, IN EFFECTUATING THE CONSPIRACY TO
RESTRAIN THE GROWTH OF A SECONDARY MARKET IN MUTUAL-FUND SHARES, THE
NASD, ITS MEMBERS, AND MORE PARTICULARLY THE OTHER NAMED DEFENDANTS, 

"(A) ESTABLISHED AND MAINTAINED RULES WHICH INHIBITED THE
DEVELOPMENT OF A SECONDARY DEALER MARKET AND A BROKERAGE MARKET IN
MUTUAL FUND SHARES; 

"(B) ESTABLISHED AND MAINTAINED RULES WHICH INDUCED BROKER/ DEALERS
TO ENTER INTO SALES AGREEMENTS WITH PRINCIPAL UNDERWRITERS, WITH
KNOWLEDGE THAT SALES AGREEMENTS CONTAINED RESTRICTIVE PROVISIONS WHICH
INHIBITED THE DEVELOPMENT OF A SECONDARY DEALER MARKET AND BROKERAGE
MARKET IN MUTUAL FUND SHARES; 

"(C) INDUCED MEMBER PRINCIPAL UNDERWRITERS TO INCLUDE RESTRICTIVE
PROVISIONS IN THEIR SALES AGREEMENTS; 

"(D) DISCOURAGED PERSONS WHO MADE INQUIRY ABOUT THE LEGALITY OF A
BROKERAGE MARKET FROM PARTICIPATING IN A BROKERAGE MARKET AND
DISTRIBUTED MISLEADING INFORMATION TO ITS MEMBERS CONCERNING THE
LEGALITY OF A BROKERAGE MARKET IN MUTUAL FUND SHARES; AND 

"(E) SUPPRESSED MARKET QUOTATIONS FOR THE SECONDARY DEALER MARKET." 
APP. 9. 

/43/ THE GOVERNMENT FIRST INDICATED ABANDONMENT OF ITS ATTACK ON THE
NASD RULES DURING ORAL ARGUMENT OF APPELLEES' MOTION TO DISMISS.  SEE
APP. 328 - 332.  NOTWITHSTANDING CLAUSES (A) AND (B) OF 17 OF THE
COMPLAINT, SEE N. 42, SUPRA, THE GOVERNMENT'S COUNSEL STATED THAT IT
DID NOT INTEND TO CHALLENGE ANY NASD RULE, APP. 330.  COUNSEL
AMBIGUOUSLY SUGGESTED, HOWEVER, THAT THE MEMBERS' COMPLIANCE WITH THOSE
RULES HAD AIDED AND ABETTED THE ALLEGED CONSPIRACY, ID., AT 332, AND
STATED THAT INFORMAL AND SECRET ACTIVITIES OF THE ASSOCIATION LIKEWISE
HAD TENDED TO INHIBIT GROWTH OF THE SECONDARY MARKET, ID., AT 330. 
THEREAFTER, IN RESPONSE TO THE DISTRICT COURT'S INVITATION TO JOIN IN
THE LITIGATION AS AMICUS CURIAE, THE SEC EXPRESSED ITS CONCERN THAT THE
ACTION MIGHT INVOLVE AN ATTACK ON NASD RULES, A MATTER "OVER WHICH THE
COMMISSION IS GRANTED EXCLUSIVE ORIGINAL JURISDICTION BY SECTION 15A OF
THE SECURITIES EXCHANGE ACT OF 1934, 15 U.S.C. 78O - 3, ET SEQ. (THE
MALONEY ACT).  " LETTER FROM MR. LAWRENCE E. NERHEIM, GENERAL COUNSEL
OF THE SEC, TO THE DISTRICT COURT, APP. 323.  THE GOVERNMENT THEREAFTER
INFORMED THE COURT THAT THE ISSUES IT SOUGHT TO RAISE DID NOT REPRESENT
"AN ATTACK NASD RULES AS SUCH" BUT RATHER "AIMED AT AN OVER-ALL COURSE
OF CONDUCT ENGAGED IN BY THE NASD AND ITS MEMBERS GOING BEYOND THE
NASD'S RULE-MAKING AUTHORITY."  LETTER FROM MR. BRUCE B. WILSON, ACTING
ASSISTANT ATTORNEY GENERAL FOR THE ANTITRUST DIVISION, TO THE DISTRICT
COURT, APP. 327.  IT MAINTAINS THE SAME POSITION IN THIS COURT.  SEE
BRIEF FOR UNITED STATES 51 N. 47. 

/44/ INDEED, IT APPEARS THAT VIGOROUS INTERBRAND COMPETITION EXISTS
IN THE MUTUAL-FUND INDUSTRY--BETWEEN THE LOAD FUNDS THEMSELVES, BETWEEN
LOAD AND NO-LOAD FUNDS, BETWEEN OPEN-AND CLOSED-END COMPANIES, AND
BETWEEN ALL OF THESE INVESTMENT FORMS AND OTHER INVESTMENTS.  SEE 1974
STAFF REPORT 20 ET SEQ. 

/45/ AS SEC CHAIRMAN GARRETT OBSERVED IN HIS LETTER SUBMITTING THE
1974 STAFF REPORT FOR CONGRESSIONAL CONSIDERATION:  "NO ISSUER OF
SECURITIES IS SUBJECT TO MORE DETAILED REGULATION THAN A MUTUAL FUND." 
LETTER FROM RAY GARRETT, JR., SEC CHAIRMAN, TO THE HONORABLE JOHN
SPARKMAN, CHAIRMAN OF THE COMMITTEE ON BANKING, HOUSING, AND URBAN
AFFAIRS, UNITED STATES SENATE (NOV. 4, 1974), CONTAINED IN 1974 STAFF
REPORT, AT V. 

/46/ THE COMMISSION CAN, FOR EXAMPLE, REQUIRE AMENDMENT OF THE NASD
RULES REGULATING THE CONDUCT OF ITS MEMBERSHIP, SEE 15 U.S.C. 78O -
3(K) (2), OR EXERCISE THE MORE GENERAL RULEMAKING POWER CONFERRED BY
37(A) OF THE INVESTMENT COMPANY ACT, 15 U.S.C. 80A - 37(A), TO CONTAIN
ANY OF THE CHALLENGED ACTIVITIES THAT MIGHT IN ANY WAY FRUSTRATE ITS
REGULATION OF THE RESTRICTIONS IT AUTHORIZES UNDER 22(F). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

THE MAJORITY REPEATS THE PRINCIPLE SO OFTEN APPLIED BY THIS COURT
THAT "(IMPLIED ANTITRUST IMMUNITY IS NOT FAVORED, AND CAN BE JUSTIFIED
ONLY BY A CONVINCING SHOWING OF CLEAR REPUGNANCY BETWEEN THE ANTITRUST
LAWS AND THE REGULATORY SYSTEM."  ANTE, AT 719 - 720.  THAT FUNDAMENTAL
RULE, THOUGH INVOKED AGAIN AND AGAIN IN OUR DECISIONS.  RETAINED ITS
VITALITY BECAUSE IN THE MANY INSTANCES OF ITS EVOCATION IT IT WAS GIVEN
LIFE AND MEANING BY A CLOSE ANALYSIS OF THE LEGISLATION AND FACTS
INVOLVED IN THE PARTICULAR CASE, AN ANALYSIS INSPIRED BY THE "FELT
INDISPENSABLE ROLE OF ANTITRUST POLICY IN THE MAINTENANCE OF A FREE
ECONOMY . . . ."  UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.
S. 321, 348 (1963).  ABSENT THAT INSPIRATION THE PRINCIPLE BECOMES AN
ARCHAISM AT BEST, AND NO LONGER REFLECTS THE TENSE INTERPLAY OF
DIFFERING AND AT TIMES CONFLICTING PUBLIC POLICIES. 

ALTHOUGH I DO NOT DISAGREE WITH MUCH OF THE COURT'S OPINION IN ITS
CONSTRUCTION OF 22(D) AND 22(F) OF THE INVESTMENT COMPANY ACT, 54 STAT.
824, AS AMENDED, 15 U.S.C. 80A - 22(D) AND 80A - 22(F), ITS ULTIMATE
HOLDING, WHICH IN CONTRAST TO THE EARLIER PORTIONS OF ITS OPINION IS
DEVOID OF DETAILED DISCUSSION OF THE APPLICABLE LAW, I FIND
UNACCEPTABLE, UNDER THAT HOLDING, IS LIGHT OF THE CONTEXT OF THIS CASE,
IMPLIED ANTITRUST IMMUNITY BECOMES THE RULE WHERE A REGULATORY AGENCY
HAS AUTHORITY TO APPROVE BUSINESS CONDUCT WHETHER OR NOT THE AGENCY IS
DIRECTED TO CONSIDER ANTITRUST FACTORS IN MAKING ITS REGULATORY
DECISIONS AND WHETHER OR NOT THERE IS OTHER EVIDENCE THAT CONGRESS
INTENDED TO DISPLACE JUDICIAL WITH ADMINISTRATIVE ANTITRUST
ENFORCEMENT. 

        I 

IF CONGRESS ITSELF EXPRESSLY PERMITS OR DIRECTS PARTICULAR PRIVATE
CONDUCT THAT WOULD OTHERWISE VIOLATE THE ANTITRUST LAWS, IT CAN BE
SAFELY ASSUMED THAT CONGRESS HAS MADE THE NECESSARY POLICY CHOICES AND
PREFERRED TO PERMIT RATHER THAN TO PREVENT THE ACTS IN QUESTION.  THERE
IS NO DISPUTE IN THIS CASE, FOR EXAMPLE, THAT COMPLIANCE WITH 22(D)'S
REQUIREMENT THAT OPEN-END FUNDS AND DEALERS SELL AT THE PUBLIC OFFERING
PRICE IS NOT SUBJECT TO ATTACK UNDER THE ANTITRUST LAWS. 

IT ALSO HAPPENS THAT IN SUBJECTING AREAS OF COMMERCIAL ACTIVITY TO
REGULATION, CONGRESS FREQUENTLY AUTHORIZES A REGULATORY AGENCY TO
APPROVE CERTAIN KINDS OF TRANSACTIONS IF THEY CONFORM TO THE
APPROPRIATE REGULATORY STANDARD SUCH AS THE "PUBLIC INTEREST" OR THE
"PUBLIC CONVENIENCE AND NECESSITY" AND CORRESPONDINGLY PROVIDES THAT,
WHEN APPROVED, THOSE TRANSACTIONS WILL BE IMMUNE FROM ATTACK UNDER THE
ANTITRUST LAWS.  SECTION 414 OF THE FEDERAL AVIATION ACT OF 1958, 72
STAT. 770, 49 U.S.C. 1384, FOR EXAMPLE, PROVIDES THAT ANY PERSON
AFFECTED BY AN ORDER ISSUED UNDER 408, 409, OR 412 OF THAT ACT, 49
U.S.C. 1378, 1379, 1382, IS "RELIEVED FROM THE OPERATIONS OF THE
'ANTITRUST LAWS,'" INCLUDING THE SHERMAN ACT, "INSOFAR AS MAY BE
NECESSARY TO ENABLE SUCH PERSON TO DO ANYTHING AUTHORIZED, APPROVED, OR
REQUIRED BY SUCH ORDER."  HUGHES TOOL CO. V. TRANS WORLD AIRLINES, 409
U. S. 363 (1973), THUS INVOLVED ACTS AND TRANSACTIONS EXPRESSLY
IMMUNIZED FROM ANTITRUST SCRUTINY.  SECTION 5 (11) OF THE INTERSTATE
COMMERCE ACT, 24 STAT. 380, AS AMENDED, 49 U.S.C. 5(11), SIMILARLY
PROVIDES THAT CARRIERS AND THEIR EMPLOYEES PARTICIPATING IN A
TRANSACTION APPROVED OR AUTHORIZED UNDER 5 "SHALL BE AND THEY ARE
RELIEVED FROM THE OPERATION OF THE ANTITRUST LAWS.  . . ."  ALSO, THE
CLAYTON ACT ITSELF PROVIDES THAT 7'S PROHIBITIONS WILL NOT APPLY TO
TRANSACTIONS DULY CONSUMMATED PURSUANT TO AUTHORITY GIVEN BY CERTAIN
NAMED AGENCIES UNDER ANY STATUTORY PROVISIONS VESTING POWER IN THOSE
AGENCIES.  38 STAT. 731, AS AMENDED, 15 U.S.C. 18.     THE COURTS HAVE,
OF COURSE, RECOGNIZED EXPRESS EXEMPTIONS SUCH AS THESE; BUT THE
INVARIABLE RULE HAS BEEN "THAT EXEMPTIONS FROM ANTITRUST LAWS ARE
STRICTLY CONSTRUED," FMC V. SEATRAIN LINES, INC., 411 U. S. 726, 733
(1973), AND THAT EXEMPTION WILL NOT BE IMPLIED BEYOND THAT GIVEN BY THE
LETTER OF THE LAW.  IN SEATRAIN THE MARITIME COMMISSION WAS AUTHORIZED
BY STATUTE TO APPROVE AND IMMUNIZE FROM ANTITRUST CHALLENGE SEVEN
CATEGORIES OF AGREEMENTS BETWEEN SHIPPING COMPANIES, INCLUDING
AGREEMENTS "CONTROLLING, REGULATING, PREVENTING, OR DESTROYING
COMPETITION."  THE COURT, CONSTRUING NARROWLY THE CATEGORY ARGUABLY
EMBRACING THE MERGER AGREEMENT UNDER CONSIDERATION, HELD THAT MERGER
AGREEMENTS BETWEEN SHIPPING COMPANIES WERE NOT SUBJECT TO APPROVAL BY
THE COMMISSION AND CONSEQUENTLY WERE NOT ENTITLED TO EXEMPTION UNDER
THE ANTITRUST LAWS. 

ABSENT EXPRESS IMMUNIZATION OR ITS EQUIVALENT, PRIVATE BUSINESS
ARRANGEMENTS ARE NOT EXEMPT FROM THE ANTITRUST LAWS MERELY BECAUSE
CONGRESS HAS EMPOWERED AN AGENCY TO AUTHORIZE THE VERY CONDUCT WHICH IS
LATER CHALLENGED IN COURT UNDER THE ANTITRUST LAWS.  WHERE THE
REGULATORY STANDARD IS THE "PUBLIC INTEREST," OR SOMETHING SIMILAR,
THERE IS NO REASON WHATSOEVER TO CONCLUDE THAT CONGRESS INTENDED THE
STRONG POLICY OF THE ANTITRUST LAWS TO BE DISPLACED OR TO BE IGNORED IN
DETERMINING THE PUBLIC INTEREST AND IN APPROVING OR DISAPPROVING THE
QUESTIONED CONDUCT.  THIS HAS BEEN THE CONSISTENT POSITION OF THIS
COURT.  IN UNITED STATES V. RADIO CORP. OF AMERICA, 358 U. S. 334
(1959), THE APPROVAL OF THE FEDERAL COMMUNICATIONS COMMISSION OF AN
EXCHANGE OF TELEVISION STATIONS WAS SOUGHT AS REQUIRED BY STATUTE, THE
COMMISSION APPROVED THE EXCHANGE, FINDING, IN ACCORDANCE WITH THE
STATUTORY STANDARD, THAT THE PUBLIC INTEREST, CONVENIENCE, AND
NECESSITY WOULD BE SERVED.  THE UNITED STATES BROUGHT AN ANTITRUST
ACTION TO REQUIRE DIVESTITURE.  IT WAS URGED IN DEFENSE THAT THE
COMMISSION HAD BEEN EMPOWERED TO CONSIDER AND ADJUDICATE ANTITRUST
ISSUES AND THAT ITS APPROVAL IMMUNIZED THE TRANSACTION.  THE COURT
REJECTED THE DEFENSE, MR. JUSTICE HARLAN CONCURRING IN THE JUDGMENT AND
SUMMARIZING THE COURT'S HOLDING AS FOLLOWS: 

"(A) COMMISSION DETERMINATION OF 'PUBLIC INTEREST, CONVENIENCE, AND
NECESSITY' CANNOT EITHER CONSTITUTE A BINDING ADJUDICATION UPON ANY
ANTITRUST ISSUES THAT MAY BE INVOLVED IN THE COMMISSION'S PROCEEDING OR
SERVE TO EXEMPT A LICENSEE PRO TANTO FROM THE ANTITRUST LAWS, AND . . .
THESE CONSIDERATIONS ALONE ARE DISPOSITIVE OF THIS APPEAL."  ID., AT
353. 

IN CALIFORNIA V. FPC, 369 U. S. 482 (1962), THE QUESTION WAS WHETHER
THE AUTHORITY IN THE FEDERAL POWER COMMISSION TO APPROVE MERGERS IN THE
PUBLIC INTEREST FORECLOSED ANTITRUST CHALLENGE TO AN APPROVED MERGER. 
THE COURT HELD THAT AGENCY APPROVAL DID NOT CONFER IMMUNITY FROM 7 OF
THE CLAYTON ACT, EVEN THOUGH THE AGENCY HAD TAKEN THE COMPETITIVE
FACTORS INTO ACCOUNT IN PASSING UPON THE APPLICATION.  A YEAR LATER, IN
UNITED STATES V. PHILADELPHIA NAT. BANK, SUPRA, THE COURT REJECTED THE
CONTENTION THAT "THE BANK MERGER ACT, BY DIRECTING THE BANKING AGENCIES
TO CONSIDER COMPETITIVE FACTORS BEFORE APPROVING MERGES.  . .
IMMUNIZES APPROVED MERGERS FROM CHALLENGE UNDER THE FEDERAL ANTITRUST
LAWS."  374 U. S., AT 350 (FOOTNOTE OMITTED).  MORE RECENTLY, WE
APPLIED THIS PRINCIPLE IN OTTER TAIL POWER CO. V. UNITED STATES, 410 U.
S. 366 (1973).  THERE THE COURT HELD THAT THE AUTHORITY OF THE FEDERAL
POWER COMMISSION TO ORDER INTERCONNECTIONS BETWEEN POWER SYSTEMS OF TWO
COMPANIES DID NOT EXEMPT COMPANY REFUSAL TO INTERCONNECT FROM ANTITRUST
ATTACK. 

UNDER THESE AND OTHER CASES IT COULD NOT BE CLEARER THAT "(A)
CTIVITIES WHICH COME UNDER THE JURISDICTION OF A REGULATORY AGENCY
NEVERTHELESS MAY BE SUBJECT TO SCRUTINY UNDER THE ANTITRUST LAWS." 
ID., AT 372, AND THAT AGENCY APPROVAL OF PARTICULAR TRANSACTIONS DOES
NOT ITSELF CONFER ANTITRUST IMMUNITY. 

THE FOREGOING WERE THE GOVERNING PRINCIPLES BOTH BEFORE AND AFTER
SILVER V. NEW YORK STOCK EXCHANGE, 373 U. S. 341(1963).  THERE, STOCK
EXCHANGE MEMBERS WERE DIRECTED TO DISCONTINUE PRIVATE WIRE SERVICE TO
TWO NONMEMBER BROKER-DEALERS, WHO WERE GIVEN NO NOTICE OR OPPORTUNITY
TO BE HEARD ON THE DISCONTINUANCE.  THE LATTER BROUGHT SUIT UNDER 1 AND
2 OF THE SHERMAN ACT, BUT THE COURT OF APPEALS HELD THAT THE STOCK
EXCHANGES HAD BEEN EXEMPTED FROM THE ANTITRUST LAWS BY THE SECURITIES
EXCHANGE ACT OF 1934.  THIS COURT REVERSED.  THE ACT CONTAINED NO
EXPRESS IMMUNITY, AND IMMUNITY WOULD BE IMPLIED "ONLY IF NECESSARY TO
MAKE THE SECURITIES EXCHANGE ACT WORK, AND EVEN THEN ONLY TO THE
MIMIMUM EXTENT NECESSARY."  373 U.S., AT 357.  CONCEDING THAT THERE
WOULD BE INSTANCES OF PERMISSIBLE SELF-REGULATION WHICH OTHERWISE WOULD
VIOLATE THE ANTITRUST LAWS, THE COURT CONCLUDED THAT NOTHING IN THE ACT
REQUIRED THAT THE DEPRIVATIONS THERE IMPOSED BE IMMUNE FROM THE
ANTITRUST LAWS.  IN ARRIVING AT THIS CONCLUSION, IT WAS NOTED THAT THE
SECURITIES AND EXCHANGE COMMISSION HAD NO AUTHORITY TO REVIEW SPECIFIC
INSTANCES OF ENFORCEMENT OF THE EXCHANGE RULES INVOLVED AND THAT IT WAS
THEREFORE UNNECESSARY TO CONSIDER ANY PROBLEM OF CONFLICT OR
COEXTENSIVENESS WITH THE AGENCY'S REGULATORY POWER.  THE COURT OBSERVED
, HOWEVER, THAT IF THERE HAD BEEN JURISDICTION IN THE COMMISSION, WITH
JUDICIAL REVIEW FOLLOWING, "A DIFFERENT CASE WOULD ARISE CONCERNING
EXEMPTION FROM THE OPERATION OF LAWS DESIGNED TO PREVENT
ANTICOMPETITIVE ACTIVITY.  . . ."  ID., AT 358 N. 12. 

SUCH A DIFFERENT CASE, WE SAID, WAS BEFORE US IN RICCI V. CHICAGO
MERCANTILE EXCHANGE, 409 U. S. 289, 302(1973).  THAT CASE AROSE IN THE
CONTEXT OF THE COMMODITY EXCHANGE ACT.  WE HELD THAT A DISTRICT COURT
ENTERTAINING A PRIVATE ANTITRUST ACTION SHOULD STAY ITS HAND WHILE THE
COMMODITY EXCHANGE COMMISSION EXERCISED WHATEVER JURISDICTION IT MIGHT
HAVE TO ADJUDICATE SPECIFIC CLAIMS OF VIOLATION OF EXCHANGE RULES; BUT
THAT ADJUDICATION, WE SAID, WAS NOT A SUBSTITUTE FOR ANTITRUST
ENFORCEMENT, AND THE FACT THAT THE COMMISSION HAD JURISDICTION TO
APPROVE OR DISAPPROVE THE CHALLENGED CONDUCT AND MIGHT HOLD THE CONDUCT
TO BE CONSISTENT WITH EXCHANGE RULES WOULD NOT, IN ITSELF, ANSWER THE
IMMUNITY QUESTION.  ID., AT 302 - 303, N. 13. 

ON OCCASION, HOWEVER, CONGRESS HAS AUTHORIZED AN AGENCY TO
ADJUDICATE THE LEGALITY OF SPECIFICALLY DEFINED TRANSACTIONS OR
COMMERCIAL BEHAVIOR IN ACCORDANCE WITH A COMPETITIVE STANDARD
INCONSISTENT WITH THE CONTROLLING CRITERIA UNDER THE ANTITRUST LAWS. 
IN THESE CIRCUMSTANCES, THE COURT HAS CONCLUDED THAT CONGRESS INTENDED
TO REPLACE NORMAL ANTITRUST ENFORCEMENT WITH THE ADMINISTRATIVE REGIME
PROVIDED BY THE STATUTE.  SUBJECT TO JUDICAL REVIEW.  PAN AMERICAN
WORLD AIRWAYS, INC. V. UNITED STATES, 371 U. S. 296(1963), INVOLVED
CERTAIN BUSINESS CONDUCT WITHIN THE JURISDICTION OF THE CIVIL
AERONAUTICS BOARD.  UNDER THE FEDERAL AVIATION ACT, VARIOUS
TRANSACTIONS BY AIR CARRIERS, IF APPROVED BY THE BOARD, WERE EXPRESSLY
IMMUNIZED FROM ANTITRUST ATTACK.  ALSO, THE BOARD WAS GIVEN EXPLICIT
AUTHORITY UNDER 411 OF THAT ACT, 49 U.S.C. 1381, TO INVESTIGATE AND
BRING TO A HALT ALL "UNFAIR.  . . PRACTICES" AND "UNFAIR METHODS OF
COMPETITION, " THE POWER UNDER THIS SECTION TO BE ADMINISTERED IN THE
LIGHT OF THE "COMPETITIVE REGIME" CLEARLY DELINEATED ELSEWHERE IN THE
ACT.  SEE 371 U. S., AT 308 - 309.  THE COURT CONCLUDED THAT CONGRESS,
HAVING DIRECTED ITSELF TO THE MATTER OF COMPETITION IN THE AIRLINES
INDUSTRY AND HAVING PROVIDED A COMPETITIVE STANDARD TO BE ADMINISTERED
BY AN AGENCY, HAD INTENDED TO DISPLACE THE USUAL ENFORCEMENT OF THE
ANTITRUST LAWS THROUGH THE COURTS, AT LEAST INSOFAR AS GOVERNMENT
INJUNCTION SUITS WERE CONCERNED.  UNITED STATES V. PHILADELPHIA
NATIONAL BANK, SUPRA, MADE IT PLAIN THAT PAN AMERICAN HAD NOT DISTURBED
THE USUAL RULE THAT, WITHOUT MORE, AGENCY POWER TO APPROVE, AND AGENCY
APPROVAL ITSELF, DO NOT CONFER ANTITRUST IMMUNITY.  374 U. S., AT 351 -
352. 

GORDON V. N. Y. STOCK EXCHANGE, INC., ANTE, P. 659, DECIDED TODAY,
IS ANOTHER INSTANCE WHERE CONGRESS HAS PROVIDED AN ADMINISTRATIVE
SUBSTITUTE FOR ANTITRUST ENFORCEMENT.  SECTION 19(B) OF THE SECURITIES
EXCHANGE ACT OF 1934, 48 STAT. 898, AS AMENDED, 15 U.S.C. 78SB),
CONTEMPLATED THE FIXING BY THE EXCHANGE, AND APPROVAL OR PRESCRIPTION
BY THE SECURITIES AND EXCHANGE COMMISSION, OF "REASONABLE RATES OF
COMMISSION" TO BE CHARGED BY EXCHANGE MEMBERS.  PRICE FIXING BY
COMPETITORS, HOWEVER, IS WHOLLY AT ODDS WITH THE SHERMAN ACT; UNDER
THAT STATUTE PRICES FIXED BY AGREEMENT ARE INHERENTLY UNREASONABLE,
WHATEVER THE LEVEL AT WHICH THEY ARE SET.  THIS WAS THE LAW LONG PRIOR
TO THE SECURITIES EXCHANGE ACT: 

     "THE AIM AND RESULT OF EVERY PRICE-FIXING AGREEMENT, IF

  EFFECTIVE, IS THE ELIMINATION OF ONE FORM OF COMPETITION.  THE

  POWER TO FIX PRICES, WHETHER REASONABLY EXERCISED OR NOT,

  INVOLVES POWER TO CONTROL THE MARKET AND TO FIX ARBITRARY AND

  UNREASONABLE PRICES.  THE REASONABLE PRICE FIXED TODAY MAY

  THROUGH ECONOMIC AND BUSINESS CHANGES BECOME THE UNREASONABLE

  PRICE OF TOMORROW.  ONCE ESTABLISHED, IT MAY BE MAINTAINED

  UNCHANGED BECAUSE OF THE ABSENCE OF COMPETITION SECURED BY THE

  AGREEMENT FOR A PRICE REASONABLE WHEN FIXED.  AGREEMENTS WHICH

  CREATE SUCH POTENTIAL POWER MAY WELL BE HELD TO BE IN THEMSELVES

UNREASONABLE OR UNLAWFUL RESTRAINTS, WITHOUT THE NECESSITY OF

  MINUTE INQUIRY WHETHER A PARTICULAR PRICE IS REASONABLE OR

  UNREASONABLE AS FIXED AND WITHOUT PLACING ON THE GOVERNMENT IN

  ENFORCING THE SHERMAN LAW THE BURDEN OF ASCERTAINING FROM DAY TO

  WHETHER IT HAS BECOME UNREASONABLE THROUGH THE MERE VARIATION OF

  ECONOMIC CONDITIONS."  UNITED STATES V. TRENTON POTTERIES CO.,

273 U. S. 392, 397 - 398 (1927).  THUS CONGRESS COULD NOT HAVE
ANTICIPATED THAT THE ANTITRUST LAWS WOULD APPLY TO STOCK EXCHANGE PRICE
FIXING APPROVED BY THE COMMISSION.  IN IN THIS RESPECT, THERE IS A
"PLAIN REPUGNANCY BETWEEN THE ANTITRUST AND REGULATORY PROVISIONS,"
UNITED STATES V. PHILADELPHIA NATIONAL BANK, SUPRA, AT 351 (FOOTNOTE
OMITTED). 

THE RULE OF LAW THAT SHOULD BE APPLIED IN THIS CASE, THEREFORE, AS
IT COMES TO US FROM THESE PRECEDENTS, IS THAT, ABSENT AN EXPRESS
ANTITRUST IMMUNIZATION CONFERREDBY CONGRESS IN A STATUTE, SUCH AN
IMMUNITY CAN BE IMPLIED ONLY IF CONGRESS HAS CLEARLY SUPPLANTED THE
ANTITRUST LAWS AND THEIR MODEL OF COMPETITION WITH A DIFFERING
COMPETITIVE REGIME, DEFINED BY PARTICULARIZED COMPETITIVE STANDARDS AND
ENFORCED BY AN ADMINISTRATIVE AGENCY, AND HAS THEREBY PURGED AN
OTHERWISE OBVIOUS ANTITRUST VIOLATION OF ITS ILLEGALITY.  WHEN VIEWED
IN THE LIGHT OF THIS RULE OF LAW, THE ARGUMENT FOR IMPLIED IMMUNITY IN
THIS CASE BECOMES DEMONSTRABLY UNTENABLE. 

        II 

REGISTERED OPEN-END COMPANY SHALL RESTRICT THE TRANSFERABILITY OR
NEGOTIABILITY OF ANY SECURITY OF WHICH IT IS THE ISSUER EXCEPT IN
CONFORMITY WITH THE STATEMENTS WITH RESPECT THERETO CONTAINED IN ITS
REGISTRATION STATEMENT NOR IN CONTRAVENTION OF SUCH RULES AND
REGULATIONS AS THE COMMISSION MAY PRESCRIBE IN THE INTERESTS OF THE
HOLDERS OF ALL OF THE OUTSTANDING SECURITIES OF SUCH INVESTMENT
COMPANY."  THE MAJORITY CONCLUDES FROM THESE WORDS AND THEIR SPARSE
LEGISLATIVE HISTORY THAT THE "FUNDS AND THE SEC" HAVE THE AUTHORITY TO
IMPOSE "SEC-APPROVED RESTRICTIONS ON TRANSFERABILITY AND NEGOTIABILITY,
" ANTE, AT 724, 725, INCLUDING THE RESTRICTIONS INVOLVED HERE EFFECTING
RESALE PRICE MAINTENANCE AND CONCERTED REFUSALS TO DEAL, ALL AIMED AT
STIFLING COMPETITION THAT MIGHT COME FROM THE SECONDARY MARKET.  THE
MAJORITY CONCLUDES THAT "(THERE CAN BE NO RECONCILIATION OF (SEC)
AUTHORITY . . . TO PERMIT THESE AND SIMILAR RESTRICTIVE AGREEMENTS"
WITH THEIR ILLEGALITY UNDER THE SHERMAN ACT AND THAT THEREFORE "THE
ANTITRUST LAWS MUST GIVE WAY IF THE REGULATORY SCHEME ESTABLISHED BY
THE INVESTMENT COMPANY ACT IS TO WORK."  ID., AT 729, 730. 

FOR SEVERAL REASONS, THE MAJORITY'S CONCLUSIONS ARE INFIRM UNDER THE
CONTROLLING AUTHORITIES.  IT IS PLAIN THAT THE ACT ITSELF CONTAINS NO
EXPRESS EXEMPTIONS FROM THE ANTITRUST LAWS.  IT IS EQUALLY PLAIN THAT
THE ACT DOES NOT EXPESSLY PERMIT THE SPECIFIC RESTRICTIONS AT ISSUE
HERE IN THE WAY THAT IT DEALS WITH THE PUBLIC OFFERING PRICE UNDER
22(D).  IT WOULD BE INCREDIBLE EVEN TO SUGGEST THAT CONGRESS INTENDED
TO GIVE PARTICIPANTS IN THE MUTUAL-FUND INDUSTRY, INDIVIDUALLY OR
COLLECTIVELY, CARTE BLANCHE AUTHORITY TO IMPOSE WHATEVER RESTRICTIONS
WERE THOUGHT DESIRABLE AND WITHOUT REGARD TO THE POLICIES OF THE
ANTITRUST LAWS.  THE MAJORITY DOES NOT CONTEND OTHERWISE AND RESTS ITS
CASE ON THE POWER WHICH IT FINDS IN THE COMMISSION TO APPROVE, OR TO
FAIL TO DISAPPROVE, THE PRACTICES CHALLENGED HERE AND TO IMMUNIZE THEM
FROM ANTITRUST SCRUTINY. 

IT IS IMMEDIATELY OBVIOUS THAT THE MAJORITY HAS FAILED TO HEED THE
TEACHING OF OUR CASES IN SEVERAL RESPECTS.  IT IGNORES THE RULE THAT "
"EXEMPTIONS FROM ANTITRUST LAWS ARE STRICTLY CONSTRUED" AND THAT
IMPLIED EXEMPTIONS ARE "'STRONGLY DISFAVORED.'"  FMC V. SEATRAIN LINES,
INC., 411 U. S., AT 733.  LURKING IN THE PROHIBITION OF 22(F) AGAINST
ANY RESTRICTIONS ON "TRANSFERABILITY OR NEGOTIABILITY" EXCEPT THOSE
STATED IN THE REGISTRATION STATEMENT, THE COURT DISCOVERS THE
AFFIRMATIVE POWER TO IMPOSE RESALE PRICE MAINTENANCE RESTRICTIONS, AS
WELL AS THE AUTHORITY TO ENGAGE IN CONCERTED REFUSALS TO DEAL AND
SIMILAR PRACTICES WHOLLY AT ODDS WITH THE ANTITRUST LAWS.  NEVER BEFORE
HAS THE COURT LABORED TO FIND HIDDEN IMMUNITIES FROM THE ANTITRUST
LAWS; AND THE NECESSITY FOR THE EFFORT IS ITSELF AT ODDS WITH OUR
PRECEDENTS. 

THE COURT'S HOLDING THAT COMMISSION APPROVAL AUTOMATICALLY BRINGS WITH
IT ANTITRUST IMMUNITY IS ALSO CONTRARY TO THOSE CASES WHICH HAVE
CONSISTENTLY REFUSED TO EQUATE AGENCY POWER TO APPROVE CONDUCT WITH AN
EXEMPTION UNDER THE ANTITRUST LAWS.  THOSE CASES, AS DEMONSTRATED ABOVE
, UNIFORMLY HELD THAT ACTUAL AGENCY APPROVAL OF THE VERY TRANSACTION
WHICH THE STATUTE EMPOWERS THE AGENCY TO APPROVE IS NOT IN ITSELF
SUFFICIENT TO EXEMPT THE TRANSACTION FROM LIABILITY UNDER THE SHERMAN
ACT, ABSENT EXPRESS EXEMPTION, OR ITS EQUIVALENT, UNDER THE REGULATORY
STATUTE ITSELF.  THIS IS TRUE EVEN WHERE THE AGENCY IS REQUIRED TO TAKE
ANTITRUST CONSIDERATIONS INTO ACCOUNT IN APPROVING THE TRANSACTION OR
AGREEMENT AND, A FORTIORI, WHERE THERE IS NO EVIDENCE THAT SUCH FACTORS
PLAYED ANY PART IN AGENCY APPROVAL.     HERE, THE COURT FINDS AUTHORITY
IN OPEN-END FUNDS, SUBJECT TO COMMISSION APPROVAL, TO IMPOSE
RESTRICTIONS ON "NEGOTIABILITY AND TRANSFERABILITY"; CONSTRUES THOSE
WORDS GENEROUSLY TO INCLUDE PRICE FIXING AND CONCERTED BOYCOTTS; AND
THEN CONCLUDES THAT COMMISSION APPROVAL--RATHER, ITS FAILURE TO
DISAPPROVE--AUTOMATICALLY AND WITHOUT MORE CONFERS ANTITRUST IMMUNITY
ON THE SELLING PRACTICES FOLLOWED BY THE PARTICULAR OPEN-ENDFUNDS IN
THIS CASE.  THIS RESULT DISREGARDS THE FACT THAT THERE IS NO EXPRESS
PROVISION FOR IMMUNITY IN THE STATUTE, NO DIRECTION TO THE COMMISSION
TO CONSIDER COMPETITIVE FACTORS, NO STATUTORY STANDARD PROVIDED FOR THE
COMMISSION TO FOLLOW WITH RESPECT TO COMPETITION IN THE INVESTMENT
COMPANY BUSINESS, NO INDICATION THAT THE COMMISSION HAS CONSIDERED THE
COMPETITIVE IMPACT OF THE RESTRICTIONS AT ISSUE HERE, AND NO OTHER
BASIS FOR CONCLUDING THAT CONGRESS INTENDED THE UNILATERAL BUSINESS
JUDGMENT OF AN INVESTMENT COMPANY, FOLLOWED BY COMMISSION APPROVAL, TO
SUBSTITUTE FOR AND SUPPLANT THE ANTITRUST LAWS. 

THE POSITION OF THE SECURITIES AND EXCHANGE COMMISSION, AS DESCRIBED
AND EMBRACED BY THE COURT, IS THAT "ITS AUTHORITY WILL BE COMPROMISED"
IF INDUSTRY PRACTICES WHICH THE COMMISSION HAS THE POWER TO APPROVE ARE
SUBJECT TO SCRUTINY UNDER THE ANTITRUST LAWS.  SEE ANTE, AT 729.  BUT
THE COMMISSION HAS MADE NO EFFORT TO ANALYZE AND EXPLAIN THE NEED FOR
THESE SERIOUSLY ANTICOMPETITIVE RESTRICTIONS IN THE MUTUAL-FUND
INDUSTRY.  IT HAS NEVER AFFIRMATIVELY AND FORMALLY APPROVED THE
SPECIFIC PRACTICES INVOLVED IN THIS CASE, BY RULE OR ADJUDICATION. 
UNTIL RECENTLY, IT HAS SEEMINGLY LEFT INVESTORS AND THE PUBLIC TO THE
TENDER MERCIES OF THE INDUSTRY ITSELF.  IN FASHIONING ANTITRUST
IMMUNITY FOR THESE PRACTICES, THE MAJORITY ACTS IN COMPLETE DISREGARD
OF THE BASIC APPROACH MANDATED BY OUR CASES, INCLUDING THE PRINCIPLES
APPROVED BY THE UNANIMOUS COURT IN FMC V. SEATRAIN LINES, INC., SUPRA: 

"THE COMMISSION VIGOROUSLY ARGUES THAT SUCH AGREEMENTS CAN BE
INTERPRETED AS FALLING WITHIN THE THIRD CATEGORY-WHICH CONCERNS
AGREEMENTS 'CONTROLLING, REGULATING, PREVENTING, OR DESTROYING
COMPETITION.'  WITHOUT MORE, WE MIGHT BE INCLINED TO AGREE THAT MANY
MERGER AGREEMENTS PROBABLY FIT WITHIN THIS CATEGORY.  BUT A BROAD
READING OF THE THIRD CATEGORY WOULD CONFLICT WITH OUR FREQUENTLY
EXPRESSED VIEW THAT EXEMPTIONS FROM ANTITRUST LAWS ARE OUR FREQUENTLY
EXPRESSED VIEW THAT EXEMPTIONS FROM ANTITRUST LAWS ARE STRICTLY
CONSTRUED, SEE, E. G., UNITED STATES V. MCKESSON & ROBBINS, INC., 351
U. S. 305, 316 (1956), AND THAT '(REPEALS OF THE ANTITRUST LAWS BY
IMPLICATION FROM A REGULATORY STATUTE ARE STRONGLY DISFAVORED, AND HAVE
ONLY BEEN FOUND IN CASES OF PLAIN REPUGNANCY BETWEEN THE ANTITRUST AND
REGULATORY PROVISIONS.'  UNITED STATES V. PHILADELPHIA NATIONAL BANK,
374 U. S. 321, 350 - 351 (1963) (FOOTNOTES OMITTED).  AS WE OBSERVED
ONLY RECENTLY:  'WHEN.  . . RELATIONSHIPS ARE GOVERNED IN THE FIRST
INSTANCE BY BUSINESS JUDGMENT AND NOT REGULATORY COERCION, COURTS MUST
BE HESITANT TOCONCLUDE THAT CONGRESS INTENDED TO OVERRIDE THE
FUNDAMENTAL NATIONAL POLICIES EMBODIED IN THE ANTITRUST LAWS.'  OTTER
TAIL POWER CO. V. UNITED STATES, 410 U. S. 366, 374 (1973).  SEE ALSO
SILVER V. NEW YORK STOCK EXCHANGE, 373 U. S. 

   341 (1963); 

     PAN AMERICAN WORLD AIRWAYS, INC. V. UNITED STATES, 371 U. S.

  296 (1963); CALIFORNIA V. FPC, 369 U. S. 482 (1962); UNITED

  STATES V. BORDEN CO., 308 U.S. 188 (1939).  THIS PRINCIPLE HAS

  LED US TO CONSTRUE THE SHIPPING ACT AS CONFERRING ONLY A 'LIMITED

  ANTITRUST EXEMPTION' IN LIGHT OF THE FACT THAT 'ANTITRUST LAWS

  REPRESENT A FUNDAMENTAL NATIONAL ECONOMIC POLICY.'  CARNATION CO.

  V. PACIFIC WESTBOUND CONFERENCE, 383 U. S., AT 219, 218."  411 U.

  S., AT 732 - 733 (FOOTNOTES OMITTED). 

     III 

EXEMPTING THE NASD FROM ANTITRUST SCRUTINY BASED ON THE EXISTENCE OF
COMMISSION POWER TO APPROVE OR DISAPPROVE NASD RULES IS LIKEWISE
UNACCEPTABLE UNDER OUR CASES FOR VERY SIMILAR REASONS.  THE MAJORITY
RELIES ON HUGHES TOOL CO. V. TRANS WORLD AIRLINES, 409 U. S. 363(1973),
AND PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U. S. 296(1963). 
BUT IN HUGHES EXEMPTION FOR THE TRANSACTIONS THERE INVOLVED WAS BASED
ON THE EXPRESS IMMUNITIES CONFERRED BY 414 OF THE FEDERAL AVIATION
ACT;AND IN PAN AMERICAN IMMUNITY FOLLOWED FROM THE BOARD'S AUTHORITY TO
ADJUDICATE UNFAIR COMPETITIVE PRACTICES IN ACCORDANCE WITH THE
DISTINCTIVE COMPETITIVE STANDARD CONGRESS ITSELF SUPPLIED IN THE
REGULATORY STATUTE.  NOTHING COMPARABLE IS TO BE FOUND IN THE RELEVANT
PROVISIONS OF THE STATUTES INVOLVED HERE. 

IT IS ESPECIALLY INTERESTING TO FIND THE COURT ON THE ONE HAND
CONCLUDING THAT THE SELLING PRACTICES UNDER SCRUTINY HERE ARE ESSENTIAL
TO THE WORKING OF THE STATUTORY SCHEME BUT ON THE OTHER HAND
RECOGNIZING THAT THE COMMISSION ITSELF HAS REQUESTED THAT THE NASD
RULES BE AMENDED TO PROHIBIT AGREEMENTS BETWEEN UNDERWRITERS AND BROKER
DEALERS THAT PRECLUDE BROKER-DEALERS, ACTING AS AGENTS, FROM MATCHING
ORDERS TO BUY AND SELL FUND SHARES IN A SECONDARY MARKET AT
COMPETITIVELY DETERMINED PRICES AND COMMISSION RATE ANTE, AT 718 - 719,
N. 31. 

THE MAJORITY'S OPINION, AS A WHOLE, SEEMS TO ME TO REJECT THE BASIC
POSITION FOUND IN OUR CASES THAT "ANTITRUST LAWS REPRESENT A
FUNDAMENTAL NATIONAL ECONOMIC POLICY . . . ."  CARNATION CO. V. PACIFIC
WESTBOUND CONFERENCE, 383 U.S. 213, 218(1966).  I CANNOT FOLLOW THAT
COURSE AND ACCORDINGLY DISSENT. 

GERALD P. NORTON ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
KAUPER, HOWARD E. SHAPIRO, AND DANIEL R. HUNTER. 

LEE LOEVINGER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
FOR APPELLEES BACHE & CO., INC., ET AL., WERE OWEN M. JOHNSON JR., AND
DANIEL J. SAYLOR.  BRIEFS WERE FILED BY JOSEPH B. LEVIN, LLOYD J.
DERRICKSON, AND DENNIS C. HENSLEY FOR APPELLEE NATIONAL ASSOCIATION OF
SECURITIES DEALERS, INC., BY ROBERT E. JENSEN AND RICHARD M. PHILLIPS
FOR APPELLEES WELLINGTON MANAGEMENT CO. ET AL.; BY WILLIAM R. MEAGHER
FOR APPELLEES FIDELITY FUND, INC., ET AL.; BY HERBERT J. MILLER, JR.,
FOR APPELLEE VANCE, SANDERS & CO., INC.; AND BY MARVIN SCHWARTZ AND
MARK I. FISHMAN FOR APPELLEE MASSACHUSETTS INVESTORS GROWTH STOCK FUND,
INC. 

WALTER P. NORTH ARGUED THE CAUSE FOR THE SECURITIES AND EXCHANGE
COMMISSION AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF
WAS LAWRENCE E. NERHEIM. 
..END :








WEINBERGER V. SALFI, 422 U.S. 749 


       WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE ET

           AL. V. SALFI ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

        NO. 74 - 214.  ARGUED MARCH 19, 1975--DECIDED JUNE

        26, 1975; 373 F. SUPP. 961, REVERSED.  26, 1957; 373 F.

           SUPP. 961, REVERSED. 


 WIDOW FILED APPLICATIONS FOR MOTHER'S SOCIAL SECURITY INSURANCE
BENEFITS FOR HERSELF AND

  CHILD'S INSURANCE BENEFITS FOR HER DAUGHTER BY A PREVIOUS
MARRIAGE, BUT THE SOCIAL SECURITY

  ADMINISTRATION (SSA), BOTH INITIALLY AND ON RECONSIDERATION AT
THE REGIONAL LEVEL, DENIED THE

  APPLICATIONS ON THE BASIS OF THE DURATION-OF-RELATIONSHIP
REQUIREMENTS OF THE SOCIAL SECURITY

  ACT (ACT), 42 U.S.C. 416 (C)(5) AND (E)(2) (1970 ED. AND SUPP.
III), WHICH DEFINE

  "WIDOW" AND "CHILD" SO AS TO EXCLUDE SURVIVING WIVES AND
STEPCHILDREN WHO HAD THEIR RESPECTIVE

  RELATIONSHIPS TO A DECEASED WAGE EARNER FOR LESS THAN NINE MONTHS
PRIOR TO HIS

  DEATH.  APPELLEES WIDOW AND CHILD, SEEKING DECLARATORY AND
INJUNCTIVE RELIEF, THEN BROUGHT A

  CLASS ACTION IN FEDERAL DISTRICT COURT ON BEHALF OF ALL WIDOWS
AND STEPCHILDREN DENIED

  BENEFITS BECAUSE OF THE NINE-MONTH REQUIREMENTS.  A THREE-JUDGE
COURT, AFTER CONCLUDING THAT

  IT HAD FEDERAL-QUESTION JURISDICTION UNDER 28 U.S.C. 1331, HELD
THAT THE NINE-MONTH

  REQUIREMENTS CONSTITUTED CONSTITUTIONALLY INVALID "IRREBUTTABLE
PRESUMPTIONS," AND ACCORDINGLY

  ENJOINED APPELLANTS DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
(HEW), ITS SECRETARY, AND THE

  SSA AND VARIOUS OF ITS OFFICIALS FROM DENYING BENEFITS ON THE
BASIS OF THOSE

  REQUIREMENTS.  HELD: 

     1.  THE DISTRICT COURT DID NOT HAVE FEDERAL-QUESTION

  JURISDICTION UNDER 28 U.S.C. 1331, BECAUSE SUCH JURISDICTION IS

 BARRED BY THE THIRD SENTENCE OF 42 U.S.C. 405(H), WHICH PROVIDES

  THAT NO ACTION AGAINST THE UNITED STATES, THE HEW SECRETARY, OR

  ANY OFFICER OR EMPLOYEE THEREOF SHALL BE BROUGHT UNDER, INTER

  ALIA, 28 U.S.C. 1331 TO RECOVER ON ANY CLAIM ARISING UNDER TITLE

  II OF THE ACT, WHICH COVERS OLD-AGE, SURVIVORS', AND DISABILITY

  INSURANCE BENEFITS PP. 756 - 762. 

     (A) THAT 405 (H)'S THIRD SENTENCE, CONTRARY TO THE DISTRICT

  COURT'S VIEW, DOES NOT MERELY CODIFY THE DOCTRINE OF EXHAUSTION

  OF REMEDIES, IS PLAIN FROM ITS SWEEPING LANGUAGE; AND, MOREOVER,

  TO CONSTRUE IT SO NARROWLY WOULD RENDER IT SUPERFLUOUS IN VIEW OF

  405 (H)'S FIRST TWO SENTENCES, WHICH PROVIDE THAT THE SECRETARY'S

 FINDINGS AND DECISION AFTER A HEARING SHALL BE BINDING UPON ALL

  PARTIES TO THE HEARING AND SHALL NOT BE REVIEWED EXCEPT AS

  PROVIDED IN 405 (G), WHICH, INTER ALIA, REQUIRES ADMINISTRATIVE

  EXHAUSTION.  PP. 756 - 759. 

     (B) THERE IS NO MERIT TO APPELLEES' ARGUMENT THAT BECAUSE
THEIR

  ACTION ARISES UNDER THE CONSTITUTION AND NOT UNDER THE ACT, IT IS

  NOT BARRED BY 405 (H), SINCE, ALTHOUGH THEIR CLAIM DOES ARISE

  UNDER THE CONSTITUTION, IT ALSO ARISES UNDER THE ACT, WHICH

  FURNISHES BOTH THE STANDING AND SUBSTANTIVE BASIS FOR THE

  CONSTITUTIONAL CLAIM.  PP. 760 - 761. 

     (C) SECTION 405 (H)'S THIRD SENTENCE EXTENDS TO ANY "ACTION"

  SEEKING "TO RECOVER ON ANY (SOCIAL SECURITY) CLAIM"--IRRESPECTIVE

  OF WHETHER RESORT TO JUDICIAL PROCESSES IS NECESSITATED BY

  DISCRETIONARY DECISIONS OF THE SECRETARY OR BY HIS

  NONDISCRETIONARY APPLICATION OF ALLEGEDLY UNCONSTITUTIONAL

  STATUTORY RETRICTIONS--AND, ALTHOUGH NOT PRECLUDING

  CONSTITUTIONAL CHALLENGES, SIMPLY REQUIRES THAT THEY BE BROUGHT

  UNDER JURISDICTIONAL GRANTS CONTAINED IN THE ACT, AND THUS IN

  CONFORMITY WITH THE SAME STANDARDS THAT APPLY TO

  NONCONSTITUTIONAL CLAIMS ARISING UNDER THE ACT.  JOHNSON V.

  ROBISON, 415 U. S. 361, DISTINGUISHED.  PP. 761 - 762. 

     2.  THE DISTRICT COURT HAD NO JURISDICTION OVER THE UNNAMED

  MEMBERS OF THE CLASS UNDER 42 U.S.C. 405 (G), WHICH PROVIDES THAT

  "(ANY INDIVIDUAL, AFTER ANY FINAL DECISION OF THE SECRETARY MADE

AFTER A HEARING TO WHICH HE WAS A PARTY, IRRESPECTIVE OF THE

  AMOUNT IN CONTROVERSY, MAY OBTAIN A REVIEW OF SUCH DECISION BY A

  CIVIL ACTION," SINCE THE COMPLAINT AS TO SUCH CLASS MEMBERS IS

  DEFICIENT IN THAT IT CONTAINS NO ALLEGATIONS THAT THEY HAVE EVEN

  FILED AN APPLICATION FOR BENEFITS WITH THE SECRETARY, MUCH LESS

  THAT HE HAS RENDERED ANY DECISION, FINAL OR OTHERWISE, REVIEW OF

  WHICH IS SOUGHT.  PP. 763 - 764. 

     3.  THE DISTRICT COURT HAD JURISDICTION OVER THE NAMED

  APPELLEES UNDER 405 (G).  WHILE THE ALLEGATIONS OF THE COMPLAINT

  WITH REGARD TO EXHAUSTION OF REMEDIES FALL SHORT OF MEETING 405

  (G)'S LITERAL REQUIREMENT THAT THERE SHALL HAVE BEEN A "FINAL

  DECISION OF THE SECRETARY MADE AFTER A HEARING" AND OF SATISFYING

  THE SECRETARY'S REGULATIONS SPECIFYING THAT THE FINALITY REQUIRED

  FOR JUDICIAL REVIEW BE ACHIEVED ONLY AFTER THE FURTHER STEPS OF A

  HEARING BEFORE AN ADMINISTRATIVE JUDGE AND POSSIBLY CONSIDERATION

  BY THE APPEALS COUNCIL, NEVERTHELESS THE SECRETARY BY NOT

  CHALLENGING THE SUFFICIENCY OF SUCH ALLEGATIONS HAS APPARENTLY

  DETERMINED THAT FOR PURPOSES OF THIS ACTION THE RECONSIDERATION

  DETERMINATION IS "FINAL."  UNDER THE ACT'S ADMINISTRATIVE SCHEME,

  THE SECRETARY MAY MAKE SUCH A DETERMINATION, BECAUSE THE TERM

  "FINAL DECISION" IS LEFT UNDEFINED BY THE ACT AND ITS MEANING IS

  TO BE FLESHED OUT BY THE SECRETARY'S REGULATIONS, 42 U.S.C. 405

  (A), AND BECAUSE NO JUDICIAL OR ADMINISTRATIVE INTEREST WOULD BE

  SERVED BY FURTHER ADMINISTRATIVE PROCEEDINGS ONCE THE SECRETARY

  CONCLUDED THAT A MATTER IS BEYOND HIS JURISDICTION TO DETERMINE,

  AND THAT THE CLAIM IS NEITHER OTHERWISE INVALID NOR COGNIZABLE

  UNDER A DIFFERENT SECTION OF THE ACT.  SIMILAR CONSIDERATIONS

  CONTROL WITH REGARD TO THE REQUIREMENT THAT THE SECRETARY'S

  DECISION BE MADE "AFTER A HEARING," SINCE UNDER SUCH

  CIRCUMSTANCES A HEARING WOULD BE FUTILE AND WASTEFUL AND SINCE,

MOREOVER, THE SECRETARY MAY AWARD BENEFITS WITHOUT REQUIRING A

  HEARING.  PP. 764 - 767. 

     4.  THE NINE-MONTH DURATION-OF-RELATIONSHIP REQUIREMENTS OF
416

  (C)(5) AND (E)(2) ARE NOT UNCONSTITUTIONAL.  PP.  PP. 767 - 785. 

(A) A STATUTORY CLASSIFICATION IN THE AREA OF SOCIAL WELFARE

  SUCH AS THE SOCIAL SECURITY PROGRAM IS CONSTITUTIONAL IF IT IS

  RATIONALLY BASED AND FREE FROM INVIDIOUS DISCRIMINATION.  PP. 768

  - 770. 

     (B) A NONCONTRACTUAL CLAIM TO RECEIVE FUNDS FROM THE PUBLIC

  TREASURY ENJOYS NO CONSTITUTIONALLY PROTECTED STATUS, ALTHOUGH OF

  COURSE THERE MAY NOT BE INVIDIOUS DISCRIMINATION AMONG SUCH

  CLAIMANTS.  STANLEY V. ILLINOIS, 405 U. S. 645; CLEVELAND BOARD

  OF EDUCATION V. LAFLEUR, 414 U. S. 632, DISTINGUISHED.  THE

  BENEFITS HERE ARE AVAILABLE UPON COMPLIANCE WITH AN OBJECTIVE

  CRITERION, ONE THAT THE LEGISLATURE CONSIDERED TO BEAR A

  SUFFICIENTLY CLOSE NEXUS WITH UNDERLYING POLICY OBJECTIVES AS TO

  BE USED AS THE TEST FOR ELIGIBILITY.  APPELLEES ARE FREE TO

  PRESENT EVIDENCE THAT THEY MEET THE SPECIFIED REQUIREMENTS,

  FAILING WHICH, THEIR ONLY CONSTITUTIONAL CLAIM IS THAT THE TEST

  THEY CANNOT MEET IS NOT SO RATIONALLY RELATED TO A LEGITIMATE

  LEGISLATIVE OBJECTIVE THAT IT CAN BE USED TO DEPRIVE THEM OF

  BENEFITS AVAILABLE TO THOSE WHO DO SATISFY THAT TEST, VLANDIS V.

  KLINE, 412 U. S. 441, DISTINGUISHED.  PP. 770 - 773. 

     (C) THE DURATION-OF-RELATIONSHIP TEST MEETS THE CONSTITUTIONAL

  STANDARD THAT CONGRESS, ITS CONCERN HAVING BEEN REASONABLY

  AROUSED BY THE POSSIBILITY OF AN ABUSE--THE USE OF SHAM MARRIAGES

  TO SECURE SOCIAL SECURITY BENEFITS--WHICH IT LEGITIMATELY DESIRED

  TO AVOID, COULD RATIONALLY HAVE CONCLUDED THAT A PARTICULAR

  LIMITATION OR QUALIFICATION WOULD PROTECT AGAINST ITS OCCURRENCE

  AND THAT THE EXPENSE AND OTHER DIFFICULTIES OF INDIVIDUAL

  DETERMINATIONS JUSTIFIED THE INHERENT IMPRECISION OF AN

  OBJECTIVE, EASILY ADMINISTERED PROPHYLACTIC RULE.  PP. 773 -

  780. 

(D) NEITHER THE FACT THAT 416 (C)(5) EXCLUDES SOME WIVES WHO

  MARRIED WITH NO ANTICIPATION OF SHORTLY BECOMING WIDOWS NOR THE

  FACT THAT THE REQUIREMENT DOES NOT FILTER OUT EVERY SUCH

  CLAIMANT, IF A WAGE EARNER LIVES LONGER THAN ANTICIPATED OR HAS

  AN ILLNESS THAT CAN BE RECOGNIZED AS TERMINAL MORE THAN NINE

  MONTHS PRIOR TO DEATH, NECESSARILY RENDERS THE STATUTORY SCHEME

  UNCONSTITUTIONAL.  WHILE IT IS POSSIBLE TO DEBATE THE WISDOM OF

  EXCLUDING LEGITIMATE CLAIMANTS IN ORDER TO DISCOURAGE SHAM

  RELATIONSHIPS, AND OF RELYING ON A RULE THAT MAY NOT EXCLUDE SOME

  OBVIOUSLY SHAM ARRANGEMENTS, CONGRESS COULD RATIONALLY CHOOSE TO

 ADOPT SUCH A COURSE.  PP. 781 - 783. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ.,

  JOINED, POST, P. 786. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, ITS
SECRETARY, THE SOCIAL SECURITY ADMINISTRATION AND VARIOUS OF ITS
OFFICIALS, APPEAL FROM A DECISION OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA INVALIDATING DURATION-OF
RELATIONSHIP SOCIAL SECURITY ELIGIBILITY REQUIREMENTS FOR SURVIVING
WIVES AND STEPCHILDREN OF DECESED WAGE EARNERS.  373 F. SUPP. 961
(1974). 

THAT COURT CONCLUDED THAT IT HAD JURISDICTION OF THE ACTION BY
VIRTUE OF 28 U.S.C. 1331, AND EVENTUALLY CERTIFIED THE CASE AS A CLASS
ACTION.  ON THE MERITS, IT CONCLUDED THAT THE NINE-MONTH REQUIREMENTS
OF 216 (C)(5) AND (E)(2) OF THE SOCIAL SECURITY ACT, 49 STAT. 620, AS
ADDED, 64 STAT. 510, AND AS AMENDED, 42 U.S.C. 416 (C)(5) AND (E)(2)
(1970 ED. AND SUPP.III), CONSTITUTED "IRREBUTTABLE PRESUMPTIONS" WHICH
WERE CONSTITUTIONALLY INVALID UNDER THE AUTHORITY OF CLEVELAND BOARD OF
EDUCATION V. LAFLEUR, 414 U. S. 632 (1974); VLANDIS V. KLINE, 412 U. S.
441 (1973); AND STANLEY V. ILLINOIS, 405 U. S. 645 (1972).  WE HOLD
THAT THE DISTRICT COURT DID NOT HAVE JURISDICTION OF THIS ACTION UNDER
28 U.S.C. 1331, AND THAT WHILE IT HAD JURISDICTION OF THE CLAIMS OF THE
NAMED APPELLEES UNDER THE PROVISIONS OF 42 U.S.C. 405 (G), IT HAD NO
JURISDICTION OVER THE CLAIMS ASSERTED ON BEHALF OF UNNAMED CLASS
MEMBERS.  WE FURTHER DECIDE THAT THE DISTRICT COURT WAS WRONG ON THE
MERITS OF THE CONSTITUTIONAL QUESTION TENDERED BY THE NAMED APPELLEES. 

        I 

APPELLEE SALFI MARRIED THE DECEASED WAGE EARNER, LONDO L. SALFI, ON
MAY 27, 1972.  DESPITE HIS ALLEGED APPARENT GOOD HEALTH AT THE TIME OF
THE MARRIAGE, HE SUFFERED A HEART ATTACK LESS THAN A MONTH LATER, AND
DIED ON NOVEMBER 21, 1972, LESS THAN SIX MONTHS AFTER THE MARRIAGE. 
APPELLEE SALFI FILED APPLICATIONS FOR MOTHER'S INSURANCE BENEFITS FOR
HERSELF AND CHILD'S INSURANCE BENEFITS FOR HER DAUGHTER BY A PREVIOUS
MARRIAGE, APPELLEE DOREEN KALNINS.  /1/ THESE APPLICATIONS WERE DENIED
BY THE SOCIAL SECURITY ADMINISTRATION, BOTH INITIALLY AND ON
RECONSIDERATION AT THE REGIONAL LEVEL, SOLELY ON THE BASIS OF THE
DURATION-OF-RELATIONSHIP REQUIREMENTS OF 416 (C) (5) AND (E) (2). 
WHICH DEFINE "WIDOW" AND "CHILD."  THE DEFINITIONS EXCLUDE SURVIVING
WIVES AND STEPCHILDREN WHO HAD THEIR RESPECTIVE RELATIONSHIPS TO A
DECEASED WAGE EARNER FOR LESS THAN NINE MONTHS PRIOR TO HIS DEATH. 
/2/ 

THE NAMED APPELLEES THEN FILED THIS ACTION, PRINCIPALLY RELYING ON
28 U.S.C. 1331 FOR JURISDICTION.  THEY SOUGHT TO REPRESENT THE CLASS OF
"ALL WIDOWS AND STEPCHILDREN OF DECEASED WAGE EARNERS WHO ARE DENIED
WIDOW'S (SIC) OR CHILDREN'S INSURANCE BENEFITS BECAUSE THE WAGE EARNER
DIED WITHIN NINE MONTHS OF HIS MARRIAGE TO THE APPLICANT OR (IN CASE OF
A STEPCHILD) THE APPLICANT'S MOTHER."  APP.  8.  THEY ALLEGED AT LEAST
PARTIAL EXHAUSTION OF REMEDIES WITH REGARD TO THEIR PERSONAL CLAIMS,
BUT MADE NO SIMILAR ALLEGATIONS WITH REGARD TO OTHER CLASS MEMBERS. 
THEY SOUGHT DECLARATORY RELIEF AGAINST THE CHALLENGED STATUTE, AND
INJUNCTIVE RELIEF RESTRAINING APPELLANTS FROM DENYING MOTHER'S AND
CHILD'S BENEFITS ON THE BASIS OF THE STATUTE.  IN ADDITION TO
ATTORNEYS' FEES AND COSTS, THEY ALSO SOUGHT "DAMAGES OR SUMS DUE AND
OWING EQUIVALENT TO THE AMOUNT OF BENEFITS TO WHICH PLAINTIFFS BECAME
ENTITLED AS OF THE DATE OF SAID ENTITLEMENT."  ID., AT 13. 

A THREE-JUDGE DISTRICT COURT HEARD THE CASE ON CROSSMOTIONS FOR
SUMMARY JUDGMENT, AND GRANTED SUBSTANTIALLY ALL OF THE RELIEF PRAYED
FOR BY APPELLEES.  THE DISTRICT COURT RENDERED A DECLARATORY JUDGMENT
HOLDING THE CHALLENGED STATUTE TO BE UNCONSTITUTINAL, CERTIFIED A CLASS
CONSISTING OF "ALL OTHERWISE ELIGIBLE SURVIVING SPOUSES AND
STEPCHILDREN . . . HERETOFORE DISQUALIFIED FROM RECEIPT OF . . .
BENEFITS BY OPERATION" OF THE DURATION-OF-RELATIONSHIP REQUIREMENTS,
ENJOINED APPELLANTS FROM DENYING BENEFITS ON THE BASIS OF THOSE
REQUIREMENTS, AND ORDERED THEM TO PROVIDE SUCH BENEFITS "FROM THE TIME
OF ORIGINAL ENTITLEMENT."  373 F. SUPP., AT 966.  WE NOTED PROBABLE
JURISDICTION OF THE APPEAL FROM THAT JUDGMENT.  419 U. S. 992 (1974). 

IN ADDITION TO THEIR BASIC CONTENTION THAT THE DURATION-OF
RELATIONSHIP REQUIREMENTS PASS CONSTITUTIONAL MUSTER, APPELLANTS
PRESENT SEVERAL CONTENTIONS BEARING ON THE SCOPE OF THE MONETARY RELIEF
AWARDED BY THE DISTRICT COURT.  THEY CONTEND THAT THE AWARD IS BARRED
BY SOVEREIGN IMMUNITY INSOFAR AS IT CONSISTS OF RETROACTIVE BENEFITS,
THAT REGARDLESS OF SOVEREIGN IMMUNITY INVALIDATION OF THE DURATION-OF
RELATIONSHIP REQUIREMENTS SHOULD BE GIVEN PROSPECTIVE EFFECT ONLY, AND
THAT THE DISTRICT COURT DID NOT PROPERLY HANDLE CERTAIN CLASS-ACTION
ISSUES.  BECAUSE WE CONCLUDE THAT THE DURATION-OF-RELATIONSHIP
REQUIREMENTS ARE CONSTITUTIONAL, WE HAVE NO OCCASION TO REACH THE
RETROACTIVITY AND CLASS-ACTION ISSUES.  WE ARE CONFRONTED, HOWEVER, BY
A SERIOUS QUESTION AS TO WHETHER THE DISTRICT COURT HAD JURISDICTION
OVER THIS SUIT. 

        II 

THE THIRD SENTENCE OF 42 U.S.C. 405 (H) PROVIDES IN PART: 

"NO ACTION AGAINST THE UNITED STATES, THE SECRETARY, OR ANY OFFICER
OR EMPLOYEE THEREOF SHALL BE BROUGHT UNDER ( 1331 ET SEQ.) OF TITLE 28
TO RECOVER ON ANY CLAIM ARISING UNDER (TITLE II OF THE SOCIAL SECURITY
ACT)."  /3/ ON ITS FACE, THIS PROVISION BARS DISTRICT COURT FEDERAL
QUESTION JURISDICTION OVER SUITS, SUCH AS THIS ONE, WHICH SEEK TO
RECOVER SOCIAL SECURITY BENIFITS.  YET IT WAS 1331 JURISDICTION WHICH
APPELLEES SUCCESSFULLY INVOKED IN THE DISTRICT COURT.  THAT COURT
CONSIDERED THIS PROVISION, BUT CONCLUDED THAT IT WAS INAPPLICABLE
BECAUSE IT AMOUNTED TO NO MORE THAN A CODIFICATION OF THE DOCTRINE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES.  THE DISTRICT COURT'S READING OF
405 (H) WAS, WE THINK, ENTIRELY TOO NARROW. 

THAT THE THIRD SENTENCE OF 405 (H) IS MORE THAN A CODIFIED
REQUIREMENT OF ADMINISTRATIVE EXHAUSTION IS PLAIN FROM ITS OWN
LANGUAGE, WHICH IS SWEEPING AND DIRECT AND WHICH STATES THAT NO ACTION
SHALL BE BROUGHT UNDER 1331, NOT MERELY THAT ONLY THOSE ACTIONS SHALL
BE BROUGHT IN WHICH ADMINISTRATIVE REMEDIES HAVE BEEN EXHAUSTED. 
MOREOVER, IF THE THIRD SENTENCE IS CONSTRUED TO BE NOTHING MORE THAN A
REQUIREMENT OF ADMINISTRATIVE EXHAUSTION, IT WOULD BE SUPERFLUOUS. 
THIS IS BECAUSE THE FIRST TWO SENTENCES OF 405 (H), WHICH APPEAR IN THE
MARGIN, /4/ ASSURE THAT ADMINISTRATIVE EXHAUSTION WILL BE REQUIRED. 
SPECIFICALLY, THEY PREVENT REVIEW OF DECISIONS OF THE SECRETARY SAVE AS
PROVIDED IN THE ACT, WHICH PROVISION IS MADE IN 405 (G).  /5/ THE
LATTER SECTION PRESCRIBES TYPICAL REQUIREMENTS FOR REVIEW OF MATTERS
BEFORE AN ADMINISTRATIVE AGENCY, INCLUDING ADMINISTRATIVE EXHAUSTION. 
/6/  THUS THE DISTRICT COURT'S TREATMENT OF THE THIRD SENTENCE OF 405
(H) NOT ONLY IGNORED THAT SENTENCE'S PLAIN LANGUAGE, BUT ALSO RELEGETED
IT TO A FUNCTION WHICH IS ALREADY PERFORMED BY OTHER STATUTORY
PROVISIONS. 

A SOMEWHAT MORE SUBSTANTIAL ARGUMENT THAT THE THIRD SENTENCE OF 405
(H) DOES NOT DEPRIVE THE DISTRICT COURT OF FEDERAL-QUESTION
JURISDICTION RELIES ON THE FACT THAT IT ONLY AFFECTS ACTIONS TO RECOVER
ON "ANY CLAIM ARISING UNDER (TITLE II)" OF THE SOCIAL SECURITY ACT. 
/7/ THE ARGUMENT IS THAT THE PRESENT ACTION ARISES UNDER THE
CONSTITUTION AND NOT UNDER TITLE II.  IT WOULD, OF COURSE, BE FRUITLESS
TO CONTEND THAT APPELLEES' CLAIM IS ONE WHICH DOES NOT ARISE UNDER THE
CONSTITUTION, SINCE THEIR CONSTITUTIONAL ARGUMENTS ARE CRITICAL TO
THEIR COMPLAINT.  BUT IT IS JUST AS FRUITLESS TO ARGUE THAT THIS ACTION
DOES NOT ALSO ARISE UNDER THE SOCIAL SECURITY ACT.  FOR NOT ONLY IS IT
SOCIAL SECURITY BENEFITS WHICH APPELLEES SEEK TO RECOVER, BUT IT IS THE
SOCIAL SECURITY ACT WHICH PROVIDES BOTH THE STANDING AND THE
SUBSTANTIVE BASIS FOR THE PRESENTATION OF THEIR CONSTITUTIONAL
CONTENTIONS.  APPELLEES SOUGHT, A AND THE DISTRICT COURT GRANTED, A
JUDGMENT DIRECTING THE SECRETARY TO PAY SOCIAL SECURITY BENEFITS.  TO
CONTEND THAT SUCH AN ACTION DOES NOT ARISE UNDER THE ACT WHOSE BENEFITS
ARE SOUGHT IS TO IGNORE BOTH THE LANGUAGE AND THE SUBSTANCE OF THE
COMPLAINT AND JUDGMENT.  THIS BEING SO, THE THIRD SENTENCE OF 405 (H)
PRECLUDES RESORT TO FEDERAL-QUESTION JURISDICTION FOR THE ADJUDICATION
OF APPELLEES' CONSTITUTIONAL CONTENTIONS. 

IT HAS ALSO BEEN ARGUED THAT JOHNSON V. ROBISON, 415 U. S. 361
(1974), SUPPORTS THE PROPOSITION THAT APPELLEES ARE NOT SEEKING TO
RECOVER ON A CLAIM ARISING UNDER TITLE II.  IN THAT CASE WE CONSIDERED
38 U.S.C. 211 (A), WHICH PROVIDES: 

"(THE DECISIONS OF THE (VETERANS') ADMINISTRATOR ON ANY QUESTION OF
LAW OR FACT UNDER ANY LAW ADMINISTERED BY THE VETERANS' ADMINISTRATION
PROVIDING BENEFITS FOR VETERANS . . . SHALL BE FINAL AND CONCLUSIVE AND
NO OTHER OFFICIAL OR ANY COURT OF THE UNITED STATES SHALL HAVE POWER OR
JURISDICTION TO REVIEW ANY SUCH DECISION BY AN ACTION IN THE NATURE OF
MANDAMUS OR OTHERWISE."  WE WERE REQUIRED TO RESOLVE WHETHER THIS
LANGUAGE PRECLUDED AN ATTACK ON THE CONSTITUTIONALITY OF A STATUTORY
LIMITATION.  WE CONCLUDED THAT IT DID NOT, BASICALLY BECAUSE SUCH A
LIMITATION WAS NOT A "DECISION" OF THE ADMINISTRATOR "ON ANY QUESTION
OF LAW OR FACT"; INDEED, THE DECISION" HAD BEEN MADE BY CONGRESS, NOT
THE ADMINISTRATOR, AND THE ISSUE WAS ONE WHICH THE ADMINISTRATOR
CONSIDERED TO BE BEYOND HIS JURISDICTION.  415 U. S., AT 367 - 368. 
THUS THE QUESTION SOUGHT TO BE LITIGATED WAS SIMPLY NOT WITHIN 211
(A)'S EXPRESS LANGUAGE, AND THERE WAS ACCORDINGLY NO BASIS FOR
CONCLUDING THAT CONGRESS SOUGHT TO PRECLUDE REVIEW OF THE
CONSTITUTIONALITY OF VETERANS' LEGISLATION. 

THE LANGUAGE OF 405 (H) IS QUITE DIFFERENT.  ITS REACH IS NOT
LIMITED TO DECISIONS OF THE SECRETARY ON ISSUES OF LAW OR FACT. 
RATHER, IT EXTENDS TO ANY "ACTION" SEEKING "TO RECOVER ON ANY (SOCIAL
SECURITY) CLAIM"--IRRESPECTIVE OF WHETHER RESORT TO JUDICIAL PROCESSES
IS NECESSITATED BY DISCRETIONARY DECISIONS OF THE SECRETARY OR BY HIS
NONDISCRETIONARY APPLICATION OF ALLEGEDLY UNCONSTITUTIONAL STATUTORY
RESTRICTIONS. 

THERE IS ANOTHER REASON WHY JOHNSON V. ROBISON IS INAPPOSITE.  IT
WAS EXPRESSLY BASED, AT LEAST IN PART, ON THE FACT THAT IF 211 (A)
REACHED CONSTITUTIONAL CHALLENGES TO STATUTORY LIMITATIONS, THEN
ABSOLUTELY NO JUDICIAL CONSIDERATION OF THE ISSUE WOULD BE AVAILABLE. 
NOT ONLY WOULD SUCH A RESTRICTION HAVE BEEN EXTRAORDINARY, SUCH THAT
"CLEAR AND CONVINCING" EVIDENCE WOULD BE REQUIRED BEFORE WE WOULD
ASCRIBE SUCH INTENT TO CONGRESS, 415 U. S., AT 373, BUT IT WOULD HAVE
RAISED A SERIOUS CONSTITUTIONAL QUESTION OF THE VALIDITY OF THE STATUTE
AS SO CONSTRUED.  ID., AT 366 - 367.  IN THE PRESENT CASE, AS WILL BE
DISCUSSED BELOW, THE SOCIAL SECURITY ACT ITSELF PROVIDES JURISDICTION
FOR CONSTITUTIONAL CHALLENGES TO ITS PROVISIONS.  THUS THE PLAIN WORDS
OF THE THIRD SENTENCE OF 405 (H) DO NOT PRECLUDE CONSTITUTIONAL
CHALLENGES.  THEY SIMPLY REQUIRE THAT THEY BE BROUGHT UNDER
JURISDICTIONAL GRANTS CONTAINED IN THE ACT, AND THUS IN CONFORMITY WITH
THE SAME STANDARDS WHICH ARE APPLICABLE TO NONCONSTITUTIONAL CLAIMS
ARISING UNDER THE ACT.  THE RESULT IS NOT ONLY OF UNQUESTIONABLE
CONSTITUTIONALITY, BUT IT IS ALSO MANIFESTLY REASONABLE, SINCE IT
ASSURES THE SECRETARY THE OPPORTUNITY PRIOR TO CONSTITUTIONAL
LITIGATION TO ASCERTAIN, FOR EXAMPLE, THAT THE PARTICULAR CLAIMS
INVOLVED ARE NEITHER INVALID FOR OTHER REASONS NOR ALLOWABLE UNDER
OTHER PROVISIONS OF THE SOCIAL SECURITY ACT. 

AS HAS BEEN STATED, THE SOCIAL SECURITY ACT ITSELF PROVIDES FOR
DISTRICT COURT REVIEW OF THE SECRETARY'S DETERMINATIONS.  TITLE 42
U.S.C. 405 (G) PROVIDES THAT "(ANY INDIVIDUAL, AFTER ANY FINAL DECISION
OF THE SECRETARY MADE AFTER A HEARING TO WHICH HE WAS A PARTY,
IRRESPECTIVE OF THE AMOUNT IN CONTROVERSY, MAY OBTAIN A REVIEW OF SUCH
DECISION BY A CIVIL ACTION COMMENCED WITHIN SIXTY DAYS AFTER THE
MAILING TO HIM OF NOTICE OF SUCH DECISION.  . . ."  SEE N. 5, SUPRA.
THE QUESTION WITH WHICH WE MUST NOW DEAL IS WHETHER THIS PROVISION
COULD SERVE AS A JURISDICTIONAL BASIS FOR THE DISTRICT COURT'S
CONSIDERATION OF THE PRESENT CASE.  WE CONCLUDE THAT IT PROVIDED
JURISDICTION ONLY AS TO THE NAMED APPELLEES AND NOT AS TO THE UNNAMED
MEMBERS OF THE CLASS.  /8/ 

REVIEW:  (1) A FINAL DECISION OF THE SECRETARY MADE AFTER A HEARING;
(2) COMMENCEMENT OF A CIVIL ACTION WITHIN 60 DAYS AFTER THE MAILING OF
NOTICE OF SUCH DECISION (OR WITHIN SUCH FURTHER TIME AS THE SECRETARY
MAY ALLOW); AND (3) FILING OF THE ACTION IN AN APPROPRIATE DISTRICT
COURT, IN GENERAL THAT OF THE PLAINTIFF'S RESIDENCE OR PRINCIPLE PLACE
OF BUSINESS.  THE SECOND AND THIRD OF THESE REQUIREMENTS SPECIFY,
RESPECTIVELY, A STATUTE OF LIMITATIONS AND APPROPRIATE VENUE.  AS SUCH,
THEY ARE WAIVABLE BY THE PARTIES, AND NOT HAVING BEEN TIMELY RAISED
BELOW, SEE FED. RULES CIV. PROC. 8 (C), 12 (H)(1), NEED NOT BE
CONSIDERED HERE.  WE INTERPRET THE FIRST REQUIREMENT, HOWEVER, TO BE
CENTRAL TO THE REQUISITE GRANT OF SUBJECT-MATTER JURISDICTION--THE
STATUTE EMPOWERS DISTRICT COURTS TO REVIEW A PARTICULAR TYPE OF
DECISION BY THE SECRETARY, THAT TYPE BEING THOSE WHICH ARE "FINAL" AND
"MADE AFTER A HEARING."     IN THE PRESENT CASE, THE COMPLAINT SEEKS
REVIEW OF THE DENIAL OF BENEFITS BASED ON THE PLAIN WORDING OF A
STATUTE WHICH IS ALLEGED TO BE UNCONSTITUTIONAL.  THAT A DENIAL ON SUCH
GROUNDS, WHICH ARE BEYOND THE POWER OF THE SECRETARY TO AFFECT, IS
NONETHELESS A DECISION OF THE SECRETARY FOR THESE PURPOSES HAS BEEN
HERETOFORE ESTABLISHED.  FLEMMING V. NESTOR, 363 U. S. 603 (1960).  AS
TO CLASS MEMBERS, HOWEVER, THE COMPLAINT IS DEFICIENT IN THAT IT
CONTAINS NO ALLEGATIONS THAT THEY HAVE EVEN FILED AN APPLICATION WITH
THE SECRETARY, MUCH LESS THAT HE HAS RENDERED ANY DECISION, FINAL OR
OTHERWISE, REVIEW OF WHICH IS SOUGHT.  THE CLASS THUS CANNOT SATISFY
THE REQUIREMENTS FOR JURISDICTION UNDER 42 U.S.C. 405 (G).  OTHER
SOURCES OF JURISDICTION BEING FORECLOSED BY 405 (H), THE DISTRICT COURT
WAS WITHOUT JURISDICTION OVER SO MUCH OF THE COMPLAINT AS CONCERNS THE
CLASS, AND IT SHOULD HAVE ENTERED AN APPROPRIATE ORDER OF DISMISSAL. 

THE JURISDICTIONAL ISSUE WITH RESPECT TO THE NAMED APPELLEES IS
SOMEWHAT MORE DIFFICULT.  IN A PARAGRAPH ENTITLED "EXHAUSTION OF
REMEDIES," THE COMPLAINT ALLEGES THAT THEY FULLY PRESENTED AND, UPON
DENIAL, TO THE REGIONAL OFFICE FOR RECONSIDERATION."  AND, UPON DENIAL,
TO THE REGIONAL OFFICE FOR RECONSIDERATION."  765 IT FURTHER ALLEGES
THAT THEY HAVE NO DISPUTE WITH THE REGIONAL OFFICE'S FINDINGS OF FACT
OR APPLICATIONS OF STATUTORY LAW, AND THAT THE ONLY ISSUE IS A MATTER
OF CONSTITUTIONAL LAW WHICH IS BEYOND THE SECRETARY'S COMPETENCE.  ON
THEIR FACE THESE ALLEGATIONS WITH REGARD TO EXHAUSTION FALL SHORT OF
MEETING THE LITERAL REQUIREMENT OF 405 (G) THAT THERE SHALL HAVE BEEN A
"FINAL DECISION OF THE SECRETARY MADE AFTER A HEARING."  THEY ALSO FALL
SHORT OF SATISFYING THE SECRETARY'S REGULATIONS, WHICH SPECIFY THAT THE
FINALITY REQUIRED FOR JUDICIAL REVIEW IS ACHIEVED ONLY AFTER THE
FURTHER STEPS OF A HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE AND,
POSSIBLY, CONSIDERATION BY THE APPEALS COUNCIL.  SEE 20 CFR 404.916,
404.940, 404.951 (1974). 

WE HAVE PREVIOUSLY RECOGNIZED THAT THE DOCTRINE OF ADMINISTRATIVE
EXHAUSTION SHOULD BE APPLIED WITH A REGARD FOR THE PARTICULAR
ADMINISTRATIVE SCHEME AT ISSUE.  PARISI V. DAVIDSON, 405 U. S. 34
(1972); MCKART V. UNITED STATES, 395 U. S. 185 (1969).  EXHAUSTION IS
GENERALLY REQUIRED AS A MATTER OF PREVENTING PREMATURE INTERFERENCE
WITH AGENCY PROCESSES, SO THAT THE AGENCY MAY FUNCTION EFFICIENTLY AND
SO THAT IT MAY HAVE AN OPPORTUNITY TO CORRECT ITS OWN ERRORS, TO AFFORD
THE PARTIES AND THE COURTS THE BENEFIT OF ITS EXPERIENCE AND EXPERTISE,
AND TO COMPILE A RECORD WHICH IS ADEQUATE FOR JUDICIAL REVIEW.  SEE, E.
G., ID., AT 193 - 194.  PLAINLY THESE PURPOSES HAVE BEEN SERVED ONCE
THE SECRETARY HAS SATISFIED HIMSELF THAT THE ONLY ISSUE IS THE
CONSTITUTIONALITY OF A STATUTORY REQUIREMENT, A MATTER WHICH IS BEYOND
HIS JURISDICTION TO DETERMINE, AND THAT THE CLAIM IS NEITHER OTHERWISE
INVALID NOR COGNIZABLE UNDER A DIFFERENT SECTION OF THE ACT.  ONCE A
BENEFIT APPLICANT HAS PRESENTED HIS OR HER CLAIM AT A SUFFICIENTLY HIGH
LEVEL OF REVIEW TO SATISFY THE SECRETARY'S ADMINISTRATIVE NEEDS,
FURTHER EXHAUSTION WOULD NOT MERELY BE FUTILE FOR THE APPLICANT, BUT
WOULD ALSO BE A COMMITMENT OF ADMINISTRATIVE RESOURCES UNSUPPORTED BY
ANY AMINISTRATIVE OR JUDICAL INTEREST. 

THE PRESENT CASE, OF COURSE, IS SIGNIFICANTLY DIFFERENT FROM MCKART
IN THAT A "FINAL DECISION" IS A STATUTORILY SPECIFIED JURISDICTIONAL
PREREQUISITE.  THE REQUIREMENT IS, THEREFORE, AS WE HAVE PREVIOUSLY
NOTED, SOMETHING MORE THAN SIMPLY A CODIFICATION OF THE JUDICIALLY
DEVELOPED DOCTRINE OF EXHAUSTION, AND MAY NOT BE DISPENSED WITH MERELY
BY A JUDICIAL CONCLUSION OF FUTILITY SUCH AS THAT MADE BY THE DISTRICT
COURT HERE.  BUT IT IS EQUALLY TRUE THAT THE REQUIREMENT OF A "FINAL
DECISION" CONTAINED IN 405 (G) IS NOT PRECISELY ANALOGOUS TO THE MORE
CLASSICAL JURISDICTIONAL REQUIREMENTS CONTAINED IN SUCH SECTIONS OF
TITLE 28 AS 1331 AND 1332.  THE TERM "FINAL DECISION" IS NOT ONLY LEFT
UNDEFINED BY THE ACT, BUT ITS MEANING IS LEFT TO THE SECRETARY TO FLESH
OUT BY REGULATION.  /9/ SECTION 405 (L) ACCORDS THE SECRETARY COMPLETE
AUTHORITY TO DELEGATE HIS STATUTORY DUTIES TO OFFICERS AND EMPLOYEES OF
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.  THE STATUTORY SCHEME
IS THUS ONE IN WHICH THE SECRETARY MAY SPECIFY SUCH REQUIREMENTS FOR
EXHAUSTION AS HE DEEMS SERVE HIS OWN INTERESTS IN EFFECTIVE AND
EFFICIENT ADMINISTRATION.  WHILE A COURT MAY NOT SUBSTITUTE ITS
CONCLUSION AS TO FUTILITY FOR THE CONTRARY CONCLUSION OF THE SECRETARY,
WE BELIEVE IT WOULD BE INCONSISTENT WITH THE CONGRESSIONAL SCHEME TO
BAR THE SECRETARY FROM DETERMINING IN PARTICULAR CASES THAT FULL
EXHAUSTION OF INTERNAL REVIEW PROCEDURES IS NOT NECESSARY FOR A
DECISION TO BE "FINAL" WITHIN THE LANGUAGE OF 406 (G). 

MUCH THE SAME MAY BE SAID ABOUT THE STATUTORY REQUIREMENT THAT THE
SECRETARY'S DECISION BE MADE "AFTER A HEARING."  NOT ONLY WOULD A
HEARING BE FUTILE AND WASTEFUL, ONCE THE SECRETARY HAS DETERMINED THAT
THE ONLY ISSUE TO BE RESOLVED IS A MATTER OF CONSTITUTIONAL LAW
CONCEDEDLY BEYOND HIS COMPETENCE TO DECIDE, BUT THE SECRETARY MAY, OF
COURSE, AWARD BENEFITS WITHOUT REQUIRING A HEARING.  WE DO NOT
UNDERSTAND THE STATUTE TO PREVENT HIM FROM SIILARLY DETERMINING IN
FAVOR OF THE APPLICANT, WITHOUT A HEARING, ALL ISSUES WITH REGARD TO
ELIGIBILITY SAVE FOR ONE AS TO WHICH HE CONSIDERS A HEARING TO BE
USELESS. 

IN THE PRESENT CASE THE SECRETARY DOES NOT RAISE ANY CHALLENGE TO
THE SUFFICIENCY OF THE ALLEGATIONS OF EXHAUSTION IN APPELLEES'
COMPLAINT.  WE INTERPRET THIS TO BE A DETERMINATION BY HIM THAT FOR THE
PURPOSES OF THIS LITIGATION THE RECONSIDERATION DETERMINATION IS
"FINAL."  THE NAMED APPELLEES THUS SATISFY THE REQUIREMENTS FOR 405 (G)
JUDICIAL REVIEW, AND WE PROCEED TO THE MERITS OF THEIR CLAIM.  /10/

        III 

THE DISTRICT COURT RELIED ON CONGRESSIONAL HISTORY FOR THE
PROPOSITION THAT THE DURATION-OF-RELATIONSHIP REQUIREMENT WAS INTENDED
TO PREVENT THE USE OF SHAM MARRIAGES TO SECURE SOCIAL SECURITY
PAYMENTS.  AS SUCH, CONCLUDED THE COURT, "THE REQUIREMENT CONSTITUTES A
PRESUMPTION THAT MARRIAGES LIKE MRS. SALFI'S WHICH DID NOT PRECEDE THE
WAGE EARNER'S DEATH BY AT LEAST NINE MONTHS, WERE ENTERED INTO FOR THE
PURPOSE OF SECURING SOCIAL SECURITY BENEFITS."  373 F. SUPP., AT 965. 
THE PRESUMPTION WAS, MOREOVER, CONCLUSIVE, BECAUSE APPLICANTS WERE NOT
AFFORDED AN OPPORTUNITY TO DISPROVE THE PRESENCE OF THE ILLICIT
PURPOSE.  THE COURT HELD THAT UNDER OUR DECISIONS IN CLEVELAND BOARD OF
EDUCATION V. LAFLEUR, 414 U. S. 632 (1974); VLANDIS V. KLINE, 412 U. S.
441 (1973); AND STANLEY V. ILLINOIS, 405 U. S. 645 (1972), THE
REQUIREMENT WAS UNCONSTITUTIONAL, BECAUSE IT PRESUMED A FACT WHICH WAS
NOT NECESSARILY OR UNIVERSALLY TRUE. 

OUR ULTIMATE CONCLUSION IS THAT THE DISTRICT COURT WAS WRONG IN
HOLDING THE DURATION-OF-RELATIONSHIP REQUIREMENT UNCONSTITUTIONAL. 
BECAUSE WE ARE AWARE THAT OUR VARIOUS HOLDINGS IN RELATED CASES DO NOT
ALL SOUND PRECISELY THE SAME NOTE, WE WILL EXPLAIN OURSELVES AT SOME
LENGTH. 

THE STANDARD FOR TESTING THE VALIDITY OF CONGRESS' SOCIAL SECURITY
CLASSIFICATION WAS CLEARLY STATED IN FLEMMING V. NESTOR, 363 U. S., AT
611: 

"PARTICULARLY WHEN WE DEAL WITH A WITHHOLDING OF A NONCONTRACTUAL
BENEFIT UNDER A SOCIAL WELFARE PROGRAM SUCH AS (SOCIAL SECURITY), WE
MUST RECOGNIZE THAT THE DUE PROCESS CLAUSE CAN BE THOUGHT TO INTERPOSE
A BAR ONLY IF THE STATUTE MANIFESTS A PATENTLY ARBITRARY
CLASSIFICATION, UTTERLY LACKING IN RATIONAL JUSTIFICATION." 

IN RICHARDSON V. BELCHER, 404 U. S. 78 (1971), A PORTION OF THE
SOCIAL SECURITY ACT WHICH REQUIRED AN OTHERWISE ENTITLED DISABILITY
CLAIMANT TO BE SUBJECTED TO AN "OFFSET" BY REASON OF HIS SIMULTANEOUS
RECEIPT OF STATE WORKMEN'S COMPENSATION BENEFITS WAS ATTACKED AS BEING
VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  THE
CLAIMANT IN THAT CASE ASSERTED THAT THE PROVISION WAS ARBITRARY IN THAT
IT REQUIRED OFFSETTING OF A STATE WORKMEN'S COMPENSATION PAYMENT, BUT
NOT OF A SIMILAR PAYMENT MADE BY A PRIVATE DISABILITY INSURER.  THE
COURT SAID: 

"IF THE GOALS SOUGHT ARE LEGITIMATE, AND THE CLASSIFICATION ADOPTED
IS RATIONALLY RELATED TO THE ACHIEVEMENT OF THOSE GOALS, THEN THE
ACTION OF CONGRESS IS NOT SO ARBITRARY AS TO VIOLATE THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT."  404 U. S., AT 84. 

TWO TERMS EARLIER THE COURT HAD DECIDED THE CASE OF DANDRIDGE V.
WILLIAMS, 397 U. S. 471 (1970), IN WHICH IT REJECTED A CLAIM THAT
MARYLAND WELFARE LEGISLATION VIOLATED THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  THE COURT HAD SAID: 

     "IN THE AREA OF ECONOMICS AND SOCIAL WELFARE, A STATE DOES NOT

  VIOLATE THE EQUAL PROTECTION CLAUSE MERELY BECAUSE THE

  CLASSIFICATIONS MADE BY ITS LAWS ARE IMPERFECT.  IF THE

  CLASSIFICATION HAS SOME 'REASONABLE BASIS,' IT DOES NOT OFFEND

THE CONSTITUTION SIMPLY BECAUSE THE CLASSIFICATION 'IS NOT MADE

  WITH MATHEMATICAL NICETY OR BECAUSE IN PRACTICE IT RESULTS IN

  SOME INEQUALITY.'  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.
S.

  61, 78.  'THE PROBLEMS OF GOVERNMENT ARE PRACTICAL ONES AND MAY

  JUSTIFY, IF THEY DO NOT REQUIRE, ROUGH ACCOMMODATIONS-ILLOGICAL,

  IT MAY BE, AND UNSCIENTIFIC.'  METROPOLIS THEATRE CO. V. CITY OF

  CHICAGO, 228 U. S. 61, 69 - 70.  . . . 

     "TO BE SURE, THE CASES CITED, AND MANY OTHERS ENUNCIATING THIS

  FUNDAMENTAL STANDARD UNDER THE EQUAL PROTECTION CLAUSE, HAVE IN

  THE MAIN INVOLVED STATE REGULATION OF BUSINESS OR INDUSTRY.  THE

  ADMINISTRATION OF PUBLIC WELFARE ASSISTANCE, BY CONTRAST,

INVOLVES THE MOST BASIC ECONOMIC NEEDS OF IMPOVERISHED HUMAN

  BEINGS.  WE RECOGNIZE THE DRAMATICALLY REAL FACTUAL DIFFERENCE

  BETWEEN THE CITED CASES AND THIS ONE, BUT WE CAN FIND NO BASIS

  FOR APPLYING A DIFFERENT CONSTITUTIONAL

       STANDARD................................... IT IS A STANDARD
THAT HAS CONSISTENTLY

  BEEN APPLIED TO STATE LEGISLATION RESTRICTING THE AVAILABILITY OF
EMPLOYMENT

  OPPORTUNITIES.  GOESAERT V. CLEARY, 335 U. S. 464; KOTCH V. BOARD
OF RIVER PORT PILOT

  COMM'RS, 330 U. S. 552.  SEE ALSO FLEMMING V. NESTOR, 363 U. S.
603.  AND IT IS A STANDARD

  THAT IS TRUE TO THE PRINCIPLE THAT THE FOURTEENTH AMENDMENT GIVES
THE FEDERAL COURTS NO POWER

  TO IMPOSE UPON THE STATES THEIR VIEWS OF WHAT CONSTITUTES WISE
ECONOMIC OR SOCIAL POLICY."  397

  U. S., AT 485 - 486. 

THE RELATION BETWEEN THE EQUAL PROTECTION ANALYSIS OF DANDRIDGE AND
THE FIFTH AMENDMENT DUE PROCESS ANALYSIS OF FLEMMING V. NESTOR AND
RICHARDSON V. BELCHER WAS DESCRIBED IN THE LATTER CASE IN THIS
LANGUAGE: 

  "A STATUTORY CLASSIFICATION IN THE AREA OF SOCIAL WELFARE IS

  CONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

  AMENDMENT IF IT IS 'RATIONALLY BASED AND FREE FROM INVIDIOUS

  DISCRIMINATION.'  DANDRIDGE V. WILLIAMS, 397 U. S. 471, 487. 

  WHILE THE PRESENT CASE, INVOLVING AS IT DOES A FEDERAL STATUTE,

  DOES NOT DIRECTLY IMPLICATE THE FOURTEENTH AMENDMENT'S EQUAL

  PROTECTION CLAUSE, A CLASSIFICATION THAT MEETS THE TEST

  ARTICULATED IN DANDRIDGE IS PERFORCE CONSISTENT WITH THE DUE

  PROCESS REQUIREMENT OF THE FIFTH AMENDMENT.  CF. BOLLING V.

  SHARPE, 347 U. S. 497, 499."  404 U. S., AT 81. 

THESE CASES QUITE PLAINLY LAY DOWN THE GOVERNING PRINCIPLE FOR
DISPOSING OF CONSTITUTIONAL CHALLENGES TO CLASSIFICATIONS IN THIS TYPE
OF SOCIAL WELFARE LEGISLATION.  THE DISTRICT COURT, HOWEVER, CHOSE TO
RELY ON CLEVELAND BOARD OF EDUCATION V. LAFLEUR, SUPRA; VLANDIS V.
KLINE, SUPRA; AND STANLEY V. ILLINOIS, SUPRA.  IT CHARACTERIZED THIS
RECENT GROUP OF CASES AS DEALING WITH "THE APPROPRIATENESS OF
CONCLUSIVE EVIDENTIARY PRESUMPTIONS."  373 F. SUPP., AT 965. 

STANLEY V. ILLINOIS HELD THAT IT WAS A DENIAL OF THE EQUAL
PROTECTION GUARANTEED BY THE FOURTEENTH AMENDMENT FOR A STATE TO DENY A
HEARING ON PARENTAL FITNESS TO AN UNWED FATHER WHEN SUCH A HEARING WAS
GRANTED TO ALL OTHER PARENTS WHOSE CUSTODY OF THEIR CHILDREN WAS
CHALLENGED.  THIS COURT REFERRED TO THE FACT THAT THE "RIGHTS TO
CONCEIVE AND TO RAISE ONE'S CHILDREN HAVE BEEN DEEMED 'ESSENTIAL,'
MEYER V. NEBRASKA, 262 U. S. 390, 399 (1923), 'BASIC CIVIL RIGHTS OF
MAN,' SKINNER V. OKLAHOMA, 316 U. S. 535, 541 (1942), AND '(RIGHTS FAR
MORE PRECIOUS . . . THAN PROPERTY RIGHTS,' MAY V. ANDERSON, 345 U. S.
528, 533 (1953)."  405 U. S., AT 651. 

IN VLANDIS V. KLINE, A STATUTORY DEFINITION OF "RESIDENTS" FOR
PURPOSES OF FIXING TUITION TO BE PAID BY STUDENTS IN A STATE UNIVERSITY
SYSTEM WAS HELD INVALID.  THE COURT HELD THAT WHERE CONNECTICUT
PURPORTED TO BE CONCERNED WITH RESIDENCY, IT MIGHT NOT AT THE SAME TIME
DENY TO ONE SEEKING TO MEET ITS TEST OF RESIDENCY THE OPPORTUNITY TO
SHOW FACTORS CLEARLY BEARING ON THAT ISSUE.  412 U. S., AT 452. 

IN LAFLEUR THE COURT HELD INVALID, ON THE AUTHORITY OF STANLEY AND
VLANDIS, SCHOOL BOARD REGULATIONS REQUIRING PREGNANT SCHOOL TEACHERS TO
TAKE UNPAID MATERNITY LEAVE COMMENCING FOUR TO FIVE MONTHS BEFORE THE
EXPECTED BIRTH.  THE COURT STATED ITS LONGSTANDING RECOGNITION "THAT
FREEDOM OF PERSONAL CHOICE IN MATTERS OF MARRIAGE AND FAMILY LIFE IS
ONE OF THE LIBERTIES PROTECTED BY THE DUE PROCESS CLAUSE OF FOURTEENTH
AMENDMENT," 414 U. S., AT 639 - 640, AND THAT "OVERLY RESTRICTIVE
MATERNITY LEAVE REGULATIONS CAN CONSTITUTE A HEAVY BURDEN ON THE
EXERCISE OF THESE PROTECTED FREEDOMS."  ID., AT 640. 

WE HOLD THAT THESE CASES ARE NOT CONTROLLING ON THE ISSUE BEFORE US
NOW.  UNLIKE THE CLAIMS INVOLVED IN STANLEY AND LAFLEUR, A
NONCONTRACTUAL CLAIM TO RECEIVE FUNDS FROM THE PUBLIC TREASURY ENJOYS
NO CONSTITUTIONALLY PROTECTED STATUS, DANDRIDGE V. WILLIAMS, SUPRA,
THOUGH OF COURSE CONGRESS MAY NOT INVIDIOUSLY DISCRIMINATE AMONG SUCH
CLAIMANTS ON THE BASIS OF A "BARE CONGRESSIONAL DESIRE TO HARM A
POLITICALLY UNPOPULAR GROUP," U. S. DEPT. OF AGRICULTURE V. MORENO, 413
U. S. 528, 534 (1973), OR ON THE BASIS OF CRITERIA WHICH BEAR NO
RATIONAL RELATION TO A LEGITIMATE LEGISLATIVE GOAL.  JIMENEZ V.
WEINBERGER, 417 U. S. 628, 636 (1974); U. S. DEPT. OF AGRICULTURE V.
MURRY, 413 U. S. 508, 513 - 514 (1973).  UNLIKE THE STATUTORY SCHEME IN
VLANDIS, 412 U. S., AT 449, THE SOCIAL SECURITY ACT DOES NOT PURPORT TO
SPEAK IN TERMS OF THE BONA FIDES OF THE PARTIES TO A MARRIAGE, BUT THEN
MAKE PLAINLY RELEVANT EVIDENCE OF SUCH BONA FIDES INADMISSIBLE.  AS IN
STARNS V. MALKERSON, 326 F. SUPP. 234 (MINN. 1970), AFF'D, 401 U.S. 985
(1971), THE BENEFITS HERE ARE AVAILABLE UPON COMPLIANCE WITH AN
OBJECTIVE CRITERION, ONE WHICH THE LEGISLATURE CONSIDERED TO BEAR A
SUFFICIENTLY CLOSE NEXUS WITH UNDERLYING POLICY OBJECTIVES TO BE USED
AS THE TEST FOR ELIGIBILITY.  LIKE THE PLAINTIFFS IN STARNS, APPELLEES
ARE COMPLETELY FREE TO PRESENT EVIDENCE THAT THEY MEET THE SPECIFIED
REQUIREMENTS; FAILING IN THIS EFFORT, THEIR ONLY CONSTITUTIONAL CLAIM
IS THAT THE TEST THEY CANNOT MEET IS NOT SO RATIONALLY RELATED TO A
LEGITIMATE LEGISLATIVE OBJECTIVE THAT IT CAN BE USED TO DEPRIVE THEM OF
BENEFITS AVAILABLE TO THOSE WHO DO SATISFY THAT TEST. 

WE THINK THAT THE DISTRICT COURT'S EXTENSION OF THE HOLDINGS OF
STANLEY, VLANDIS, AND LAFLEUR TO THE ELIGIBILITY REQUIREMENT IN ISSUE
HERE WOULD TURN THE DOCTRINE OF THOSE CASES INTO A VIRTUAL ENGINE OF
DESTRUCTION FOR COUNTLESS LEGISLATIVE JUDGMENTS WHICH HAVE HERETOFORE
BEEN THOUGHT WHOLLY CONSISTENT WITH THE FIFTH AND FOURTEENTH AMENDMENTS
TO THE CONSTITUTION.  FOR EXAMPLE, THE VERY SECTION OF TITLE 42 WHICH
AUTHORIZES AN ACTION SUCH AS THIS, 405 (G), REQUIRES THAT A CLAIM BE
FILED WITHIN 60 DAYS AFTER ADMINISTRATIVE REMEDIES ARE EXHAUSTED.  IT
IS INDISPUTABLE THAT THIS REQUIREMENT PLACES PEOPLE WHO FILE THEIR
CLAIMS MORE THAN 60 DAYS AFTER EXHAUSTION IN A DIFFERENT "CLASS" FROM
PEOPLE WHO FILE THEIR CLAIMS WITHIN THE TIME LIMIT.  IF WE WERE TO
FOLLOW THE DISTRICT COURT'S ANALYSIS, WE WOULD FIRST TRY TO ASCERTAIN
THE CONGRESSIONAL "PURPOSE" BEHIND THE PROVISION, AND PROBABLY WOULD
CONCLUDE THAT IT WAS TO PREVENT STALE CLAIMS FROM BEING ASSERTED IN
COURT.  WE WOULD THEN TURN TO THE QUESTIONS OF WHETHER SUCH A FLAT
CUTOFF PROVISION WAS NECESSARY TO PROTECT THE SECRETARY FROM STALE
CLAIMS, WHETHER IT WOULD BE POSSIBLE TO MAKE INDIVIDUALIZED
DETERMINATIONS AS TO ANY PREJUDICE SUFFERED BY THE SECRETARY AS THE
RESULT OF AN UNTIMELY FILING, AND WHETHER OR NOT AN INDIVIDUALIZED
HEARING ON THAT ISSUE SHOULD BE REQUIRED IN EACH CASE.  THIS WOULD
REPRESENT A DEGREE OF JUDICIAL INVOLVEMENT IN THE LEGISLATIVE FUNCTION
WHICH WE HAVE ESCHEWED EXCEPT IN THE MOST UNUSUAL CIRCUMSTANCES, AND
WHICH IS QUITE UNLIKE THE JUDICIAL ROLE MANDATED BY DANDRIDGE, BELCHER,
AND NESTOR, AS WELL AS BY A HOST OF CASES ARISING FROM LEGISLATIVE
EFFORTS TO REGULATE PRIVATE BUSINESS ENTERPRISES. 

IN WILLIAMSON V. LEE OPTICAL CO., 348 U. S. 483 (1955), THE COURT
DEALT WITH A CLAIM THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT WAS VIOLATED BY AN OKLAHOMA STATUTE WHICH SUBJECTED OPTICIANS
TO A SYSTEM OF DETAILED REGULATION, BUT WHICH EXEMPTED SELLERS OF READY
TO-WEAR GLASSES.  IN SUSTAINING THE STATUTE THE COURT SAID: 

"THE PROBLEM OF LEGISLATIVE CLASSIFICATION IS A PERENNIAL ONE,
ADMITTING OF NO DOCTRINAIRE DEFINITION.  EVILS IN THE SAME FIELD MAY BE
OF DIFFERENT DIMENSIONS AND PROPORTIONS, REQUIRING DIFFERENT REMEDIES. 
OR SO THE LEGISLATURE MAY THINK."  ID., AT 489. 

MORE RECENTLY, IN MOURNING V. FAMILY PUBLICATIONS SERVICE, INC., 411
U. S. 356 (1973), THE COURT SUSTAINED THE CONSTITUTIONALITY OF A
REGULATION PROMULATED UNDER THE TRUTH IN LENDING ACT WHICH MADE THE
ACT'S DISCLOSURE PROVISIONS APPLICABLE WHENEVER CREDIT IS OFFERED TO A
CONSUMER "'FOR WHICH EITHER A FINANCE CHARGE IS OR MAY BE IMPOSED OR
WHICH PURSUANT TO AN AGREEMENT, IS OR MAY BE PAYABLE IN MORE THAN FOUR
INSTALLMENTS.'"  ID., AT 362.  THE REGULATION WAS CHALLENGED BECAUSE IT
WAS SAID TO CONCLUSIVELY PRESUME THAT PAYMENTS MADE UNDER AN AGREEMENT
PROVIDING FOR MORE THAN FOUR INSTALMENTS NECESSARILY INCLUDED A FINANCE
CHARGE, WHEN IN FACT THAT MIGHT NOT BE THE CASE.  THE COURT REJECTED
THE CONSTITUTIONAL CHALLENGE IN THIS LANGUAGE: 

"THE RULE WAS INTENDED AS A PROPHYLACTIC MEASURE; IT DOES NOT
PRESUME THAT ALL CREDITORS WHO ARE WITHIN ITS AMBIT ASSESS FINANCE
CHARGES, BUT, RATHER, IMPOSES A DISCLOSURE REQUIREMENT ON ALL MEMBERS
OF A DEFINED CLASS IN ORDER TO DISCOURAGE EVASION BY A SUBSTANTIAL
PORTION OF THAT CLASS."  ID., AT 377. 

IF THE FIFTH AND FOURTEENTH AMENDMENTS PERMIT THIS LATITUDE TO
LEGISLATIVE DECISIONS REGULATING THE PRIVATE SECTOR OF THE ECONOMY,
THEY SURELY ALLOW NO LESS LATITUDE IN PRESCRIBING THE CONDITIONS UPON
WHICH FUNDS SHALL BE DISPENSED FROM THE PUBLIC TREASURY.  DANDRIDGE V.
WILLIAMS, SUPRA.  WITH THESE PRINCIPLES IN MIND, WE TURN TO CONSIDER
THE STATUTORY PROVISIONS WHICH THE DISTRICT COURT HELD INVALID. 

TITLE 42 U.S.C. 402 (1970 ED. AND SUPP. III) IS THE BASIC
CONGRESSIONAL ENACTMENT DEFINING ELIGIBILITY FOR OLDAGE AND SURVIVORS
INSURANCE BENEFIT PAYMENTS, AND IS DIVIDED INTO 23 LETTERED
SUBSECTIONS.  SUBSECTION (G) IS ENTITLED "MOTHER'S INSURANCE BENEFITS,"
AND PRIMARILY GOVERNS THE CLAIM OF APPELLEE SALFI.  SUBSECTION (D)
GOVERNS ELIGIBILITY FOR CHILD'S INSURANCE BENEFITS, AND IS THE
PROVISION UNDER WHICH APPELLEE KALNINS MAKES HER CLAIM.  OTHERS IN 402,
SPECIFY THE TYPES OF SOCIAL RISKS FOR WHICH PROTECTION IS PROVIDED BY
WHAT IS BASICALLY A STATUTORY INSURANCE POLICY. 

A DIFFERENT INSURANCE SYSTEM, BUT SIMILARLY DEFINED BY STATUTE AND
OPERATED BY A GOVERNMENTAL ENTITY, WAS THE SUBJECT OF OUR CONSIDERATION
IN GEDULDIG V. AIELLO, 417 U. S. 484 (1974), AND OUR DISPOSITION OF
THAT CASE IS INSTRUCTIVE.  WE REVERSED THE JUDGMENT OF A DISTRICT COURT
WHICH HAD HELD THAT A CALIFORNIA STATE DISABILITY INSURANCE PROGRAM WAS
INVALID INSOFAR AS IT FAILED TO PROVIDE BENEFITS FOR DISABILITIES
ASSOCIATED WITH NORMAL PREGNANCY.  IN OUR OPINION WE SAID: 

     "THE DISTRICT COURT SUGGESTED THAT MODERATE ALTERATIONS IN
WHAT

  IT REGARDED AS 'VARIABLES' OF THE DISABILITY INSURANCE PROGRAM

  COULD BE MADE TO ACCOMMODATE THE SUBSTANTIAL EXPENSE REQUIRED TO

  INCLUDE NORMAL PREGNANCY WITHIN THE PROGRAM'S PROTECTION.  THE

SAME CAN BE SAID, HOWEVER, WITH RESPECT TO THE OTHER EXPENSIVE

  CLASS OF DISABILTIES THAT ARE EXCLUDED FROM COVERAGE--SHORT-TERM

  DISABILITIES.  IF THE EQUAL PROTECTION CLAUSE WERE THOUGHT TO

  COMPEL DISABILITY PAYMENTS FOR NORMAL PREGNANCY, IT IS HARD TO

  PERCEIVE WHY IT WOULD NOT ALSO COMPEL PAYMENTS FOR SHORT-TERM

  DISABILITIES SUFFERED BY PARTICIPATING EMPLOYEES. 

     "IT IS EVIDENT THAT A TOTALLY COMPREHENSIVE PROGRAM WOULD BE

  SUBSTANTIALLY MORE COSTLY THAN THE PRESENT PROGRAM AND WOULD

  INEVITABLY REQUIRE STATE SUBSIDY, A HIGHER RATE OF EMPLOYEE

  CONTRIBUTION, A LOWER SCALE OF BENEFITS FOR THOSE SUFFERING

  INSURED DISABILITIES, OR SOME COMBINATION OF THESE MEASURES. 

  THERE IS NOTHING IN THE CONSTITUTION, HOWEVER, THAT REQUIRES THE

STATE TO SUBORDINATE OR COMPROMISE ITS LEGITIMATE INTERESTS

  SOLELY TO CREATE A MORE COMPREHENSIVE SOCIAL 

INSURANCE PROGRAM THAN IT ALREADY HAS."  ID., AT

  495 - 496. 

THE PRESENT CASE IS SOMEWHAT DIFFERENT, SINCE THE SECRETARY
PRINCIPALLY DEFENDS THE DURATION-OF-RELATIONSHIP REQUIREMENT, NOT AS A
REASONABLE LEGISLATIVE DECISION TO EXCLUDE A PARTICULAR TYPE OF RISK
FROM COVERAGE, BUT INSTEAD AS A METHOD OF ASSURING THAT PAYMENTS ARE
MADE ONLY UPON THE OCCURRENCE OF EVENTS THE RISK OF WHICH IS COVERED BY
THE INSURANCE PROGRAM.  /11/ COMMERCIAL INSURANCE POLICIES HAVE
TRADITIONALLY RELIED UPON FIXED, PROPHYLACTIC RULES TO PROTECT AGAINST
ABUSES WHICH COULD EXPAND LIABILITY BEYOND THE RISKS WHICH ARE WITHIN
THE GENERAL CONCEPT OF ITS COVERAGE.  FOR EXAMPLE, LIFE INSURANCE
POLICIES OFTEN COVER DEATHS BY SUICIDE, BUT NOT THOSE SUICIDES WHICH
WERE CONTEMPLATED WHEN THE POLICY WAS PURCHASED.  FREQUENTLY THE METHOD
CHOSEN TO CONTAIN LIABILITY WITHIN THESE CONCEPTUAL BOUNDS IS A STRICT
RULE THAT DEATHS BY SUICIDE ARE COVERED IF, AND ONLY IF, THEY OCCUR
SOME FIXED PERIOD OF TIME AFTER THE POLICY IS ISSUED.  SEE, E. G., 9G. 
COUCH, CYCLOPEDIA OF INSURANCE LAW 40.50 (2D ED. 1962).  WHILE SUCH A
LIMITATION DOUBTLESS PROVES IN PARTICULAR CASES TO BE "UNDER-INCLUSIVE"
OR "OVER-INCLUSIVE," IN LIGHT OF ITS PRESUMED PURPOSE, IT IS
NONETHELESS A WIDELY ACCEPTED RESPONSE TO LEGITIMATE INTERESTS IN
ADMINISTRATIVE ECONOMY AND CERTAINTY OF COVERAGE FOR THOSE WHO MEET ITS
TERMS.  WHEN THE GOVERNMENT CHOOSES TO FOLLOW THIS TRADITION IN ITS OWN
SOCIAL INSURANCE PROGRAMS, IT DOES NOT COME UP AGAINST A CONSTITUTIONAL
STONE WALL.  RATHER, IT MAY RELY ON SUCH RULES SO LONG AS THEY COMPORT
WITH THE STANDARDS OF LEGISLATIVE REASONABLENESS ENUNCIATED IN CASES
LIKE DANDRIDGE V. WILLIAMS AND RICHARDSON V. BELCHER.  777 IN CASES
LIKE DANDRIDGE V. WILLIAMS AND RICHARDSON V. BELCHER. 

UNDER THOSE STANDARDS THE QUESTION RAISED IS NOT WHETHER A STATUTORY
PROVISION PRECISELY FILTERS OUT THOSE, AND ONLY THOSE, WHO ARE IN THE
FACTUAL POSITION WHICH GENERATED THE CONGRESSIONAL CONCERN REFLECTED IN
THE STATUTE.  SUCH A RULE WOULD BAN ALL PROPHYLACTIC PROVISIONS, AND
WOULD BE DIRECTLY CONTRARY TO OUR HOLDING IN MOURNING, SUPRA.  NOR IS
THE QUESTION WHETHER THE PROVISION FILTERS OUT A SUBSTANTIAL PART OF
THE CLASS WHICH CAUSED CONGRESSIONAL CONCERN, OR WHETHER IT FILTERS OUT
MORE MEMBERS OF THE CLASS THAN NONMEMBERS.  THE QUESTION IS WHETHER
CONGRESS, ITS CONCERN HAVING BEEN REASONABLY AROUSED BY THE POSSIBILITY
OF AN ABUSE WHICH IT LEGITIMATELY DESIRED TO AVOID, COULD RATIONALLY
HAVE CONCLUDED BOTH THAT A PARTICULAR LIMITATION OR QUALIFICATION WOULD
PROTECT AGAINST ITS OCCURRENCE, AND THAT THE EXPENSE AND OTHER
DIFFICULTIES OF INDIVIDUAL DETERMINATIONS JUSTIFIED THE INHERENT
IMPRECISION OF A PROPHYLACTIC RULE.  WE CONCLUDE THAT THE DURATION-OF
RELATIONSHIP TEST MEETS THIS CONSTITUTIONAL STANDARD. 

THE DANGER OF PERSONS ENTERING A MARRIAGE RELATIONSHIP NOT TO ENJOY
ITS TRADITIONAL BENEFITS, BUT INSTEAD TO ENABLE ONE SPOUSE TO CLAIM
BENEFITS UPON THE ANTICIPATED EARLY DEATH OF THE WAGE EARNER, HAS BEEN
RECOGNIZED FROM THE VERY BEGINNING OF THE SOCIAL SECURITY PROGRAM. 
WHILE NO EARLY LEGISLATIVE HISTORY ADDRESSES ITSELF SPECIFICALLY TO THE
DURATION-OF-RELATIONSHIP REQUIREMENT FOR MOTHER'S AND CHILD'S BENEFITS,
THERE WERE DISCUSSIONS OF THE ANALOGOUS REQUIREMENT FOR RECEIPT OF
WIFE'S BENEFITS UNDER 402 (B).  SEE 42 U.S.C. A. 416 (B) (FEB. 1975
SUPP.), DEFINING "WIFE."  DR. A. J. ALTMEYER, CHAIRMAN OF THE SOCIAL
SECURITY BOARD, NOTED THAT A FIVE-YEAR REQUIREMENT "SHOULD BE STRICT
ENOUGH TO PREVENT MARRIAGE IN ANTICIPATION OF THE LARGER BENEFIT
PAYMENTS."  HEARINGS ON SOCIAL SECURITY BEFOR THE HOUSE COMMITTEE ON
WAYS AND MEANS, 76TH CONG., 1ST SESS., VOL. 3, P. 2297 (1939). 
SIMILARLY, THE ADVISORY COUNCIL ON SOCIAL SECURITY STATED: 

     "THE REQUIREMENT THAT THE WIVES' ALLOWANCE BE PAYABLE ONLY

WHERE MARITAL STATUS EXISTED PRIOR TO THE HUSBAND'S ATTAINMENT OF

  AGE 60 IS INTENDED TO SERVE AS PROTECTION AGAINST ABUSE OF THE

  PLAN THROUGH THE CONTRACTING OF MARRIAGES SOLELY FOR THE PURPOSE

  OF ACQUIRING ENHANCED BENEFITS.  IF THE MARRIAGE TAKES PLACE AT

  LEAST 5 YEARS BEFORE ANY OLD-AGE BENEFITS CAN BE PAID, A

  REASONABLE ASSUMPTION EXISTS THAT IT WAS CONTRACTED IN GOOD

  FAITH."  ID., VOL. 1, P. 31. 

THE ADVISORY COUNCIL ALSO STATED, WITH REGARD TO 402 (E) WIDOW'S
BENEFITS WHICH, LIKE MOTHER'S BENEFITS, DEPEND ON THE 416 (C)
DEFINITION OF "WIDOW": 

     "AS IN THE CASE OF WIVES' ALLOWANCES, IT IS BELIEVED DESIRABLE

  TO PROTECT THE PROVISIONS FOR WIDOWS' BENEFITS AGAINST ABUSE BY

  THE REQUIREMENT OF A MINIMUM PERIOD OF MARITAL STATUS."  ID., AT

  32. 

SIMILAR CONCERNS WERE REFLECTED IN THE HOUSE AND SENATE REPORTS ON
THE 1946 AMENDMENT WHICH REDUCED TO THREE YEARS THE REQUIRED DURATION
OF A MARRIAGE FOR THE PURPOSES OF AN ELIGIBLE "WIFE."  IT WAS STATED: 

"THE ORIGINAL PROVISION WAS INTENDED TO PREVENT EXPLOITATION OF THE
FUND BY CLAIMS FOR BENEFITS FROM PERSONS WHO MARRIED BENEFICIARIES
SOLELY TO GET WIFE'S BENEFITS.  EXPERIENCE HAS SHOWN THAT THE
REQUIREMENT IS UNNECESSARILY RESTRICTIVE FOR THIS PURPOSE AND THAT, IN
A NUMBER OF CASES, A WIFE IS PERMANENTLY BARRED FROM BENEFITS EVEN
THOUGH THE MARRIAGE WAS ENTERED INTO MANY YEARS BEFORE THE WAGE EARNER
BECAME A BENEFICIARY.  THE AMENDMENT, TAKEN WITH THE PROVISION IN
ELIGIBLE FOR BENEFITS, SHOULD BE SUFFICIENT PROTECTION FOR THE TRUST
FUND AND WILL REMEDY SITUATIONS WHICH NOW SEEM INEQUITABLE.  FEW
PERSONS ARE LIKELY TO MARRY BECAUSE OF THE PROSPECT OF RECEIVING A
MODEST INSURANCE BENEFIT WHICH WILL NOT BE PAYABLE UNTIL AFTER 3
YEARS."  H. R. REP. NO. 2526, 79TH CONG., 2D SESS., 25; S. REP. NO.
1862, 79TH CONG., 2D SESS., 33. 

LATER AMENDMENTS TO THE ACT HAVE BEEN ACCOMPANIED BY DISCUSSIONS OF
THE DURATION-OF-RELATIONSHIP REQUIREMENTS CONTAINED IN THE DEFINITIONS
OF "WIDOW" AND "CHILD."  LIKE THE EARLY HISTORY OF ANALOGOUS
REQUIREMENTS, THEY REFLECT CONGRESSIONAL CONCERN WITH THE POSSIBILITY
OF RELATIONSHIPS ENTERED FOR THE PURPOSE OF OBTAINING BENEFITS.  IN
1967, WHEN THE DURATIONAL PERIOD WAS REDUCED FROM ONE YEAR TO NINE
MONTHS, THE HOUSE REPORT STATED: 

"YOUR COMMITTEE'S BILL WOULD REDUCE THE DURATION-OF-RELATIONSHIP
REQUIREMENTS FOR WIDOWS, WIDOWERS, AND STEPCHILDREN OF DECEASED WORKERS
FROM 1 YEAR TO 9 MONTHS.  THE PRESENT LAW CONTAINS A 1-YEAR DURATION-OF
RELATIONSHIP REQUIREMENT WHICH WAS ADOPTED AS A SAFEGUARD AGAINST THE
PAYMENT OF BENEFITS WHERE A RELATIONSHIP WAS ENTERED INTO IN ORDER TO
SECURE BENEFIT RIGHTS.  WHILE THE PRESENT REQUIREMENTS HAVE GENERALLY
WORKED OUT SATISFACTORILY, SITUATIONS HAVE BEEN CALLED TO THE
COMMITTEE'S ATTENTION IN WHICH BENEFITS WERE NOT PAYABLE BECAUSE THE
REQUIRED RELATIONSHIP HAD EXISTED FOR SOMEWHAT LESS THAN 1 YEAR. 
ALTHOUGH SOME DURATION-OF-RELATIONSHIP REQUIREMENT IS APPROPRIATE, A
LESS STRINGENT REQUIREMENT WOULD BE ADEQUATE."  H. R. REP. NO. 544,
90TH CONG., 1ST SESS., 56.     WHEN IN 1972 CONGRESS ADDED THE
PROVISIONS OF 42 U.S.C. 416 (K)(2) (1970 ED., SUPP. III) (ELIMINATING
THE NINE-MONTH REQUIREMENT WITH RESPECT TO REMARRIAGES OF PERSONS WHO
HAD PREVIOUSLY BEEN MARRIED FOR MORE THAN NINE MONTHS, THE HOUSE REPORT
OBSERVED:  "THIS DURATION-OF-RELATIONSHIP REQUIREMENT IS INCLUDED IN
THE LAW AS A GENERAL PRECAUTION AGAINST THE PAYMENT OF BENEFITS WHERE
THE MARRIAGE WAS UNDERTAKEN TO SECURE BENEFIT RIGHTS."  H. R. REP. NO.
92 - 231, P. 55 (1971). 

UNDOUBTEDLY THE CONCERNS REFLECTED IN THIS CONGRESSIONAL MATERIAL
ARE LEGITIMATE, INVOLVING AS THEY DO THE INTEGRITY OF BOTH THE SOCIAL
SECRITY TRUST FUND AND THE MARRIAGE RELATIONSHIP.  IT IS ALSO
UNDOUBTEDLY TRUE THAT THE DURATION-OF-RELATIONSHIP REQUIREMENT OPERATES
TO LESSEN THE LIKELIHOOD OF ABUSE THROUGH SHAM RELATIONSHIPS ENTERED IN
CONTEMPLATION OF IMMINENT DEATH.  WE ALSO THINK THAT CONGRESS COULD
RATIONALLY HAVE CONCLUDED THAT ANY IMPRECISION FROM WHICH IT MIGHT
SUFFER WAS JUSTIFIED BY ITS EASE AND CERTAINTY OF OPERATION. 

WE NOTE INITIALLY THAT THE REQUIREMENT IS EFFECTIVE ONLY WITHIN A
SOMEWHAT NARROW RANGE OF SITUATIONS LACKING CERTAIN CHARACTERISTICS
WHICH MIGHT REASONABLY BE THOUGHT TO ESTABLISH THE GENUINENESS OF A
MARITAL RELATIONSHIP WHICH INVOLVES CHILDREN (AND THUS THE POTENTIAL
FOR MOTHER'S AND CHILD'S BENEFITS).  EVEN THOUGH A SURVIVING WIFE HAS
NOT BEEN MARRIED FOR A PERIOD OF NINE MONTHS IMMEDIATELY PRIOR TO HER
HUSBAND'S DEATH, SHE IS NONETHELESS WITHIN THE DEFINITION OF "WIDOW" IF
SHE MEETS ONE OF THE OTHER DISJUNCTIVE REQUIREMENTS OF 416 (C).  IF SHE
IS THE MOTHER OF HER LATE HUSBAND'S SON OR DAUGHTER; IF SHE LEGALLY
ADOPTED HIS SON OR DAUGHTER WHILE SHE WAS MARRIED TO HIM AND WHILE SUCH
SON OR DAUGHTER WAS UNDER THE AGE OF 18; IF HE LEGALLY ADOPTED HER SON
OR DAUGHTER UNDER THE SAME CIRCUMSTANCES; OR IF DURING THEIR MARRIAGE,
HOWEVER SHORT, THEY LEGALLY ADOPTED A CHILD UNDER THE AGE OF 18--IN ANY
OF THESE CIRCUMSTANCES SURVIVING WIFE MAY CLAIM WIDOW'S OR MOTHER'S
BENEFITS EVEN THOUGH SHE HAS NOT BEEN MARRIED TO HER HUSBAND FOR A FULL
NINE MONTHS.  /12/  THE COMMON DENOMINATOR OF THESE DISJUNCTIVE
REQUIREMENTS APPEARS TO US TO BE THE ASSUMPTION OF RESPONSIBILITIES
NORMALLY ASSOCIATED WITH MARRIAGE, AND WE THINK THAT CONGRESS HAS
TREATED THEM AS ALTERNATIVE INDICIA OF THE FACT THAT THE MARRIAGE WAS
ENTERED INTO FOR A REASON OTHER THAN THE DESIRE TO SHORTLY ACQUIRE
BENEFITS.  THE MARRIAGES IN WHICH THE WIDOW MUST DEPEND ON QUALIFYING
UNDER THE NINE-MONTH REQUIREMENT ARE THOSE IN WHICH NONE OF THESE OTHER
OBJECTIVE EVIDENCES OF THE ASSUMPTION OF MARITAL RESPONSIBILITIES ARE
PRESENT. 

EVEN SO, 416 (C) (5) UNDOUBTEDLY EXCUDES SOME SURVIVING WIVES WHO
MARRIED WITH NO ANTICIPATION OF SHORTLY BECOMING WIDOWS, AND IT MAY BE
THAT APPELLEE SALFI IS AMONG THEM.  IT LIKEWISE MAY BE TRUE THAT THE
REQUIREMENT DOES NOT FILTER OUT EVERY SUCH CLAIMANT, IF A WAGE EARNER
LINGERS LONGER THAN ANTICIPATED, OR IN THE CASE OF ILLNESSES WHICH CAN
BE RECOGNIZED AS TERMINAL MORE THAN NINE MONTHS PRIOR TO DEATH.  BUT
NEITHER OF THESE FACTS NECESSARILY RENDERS THE STATUTORY SCHEME
UNCONSTITUTIONAL. 

WHILE IT IS POSSIBLE TO DEBATE THE WISDOM OF EXCLUDING LEGITIMATE
CLAIMANTS IN ORDER TO DISCOURAGE SHAM RELATIONSHIPS, AND OF RELYING ON
A RULE WHICH MAY NOT EXCLUDE SOME OBVIOUSLY SHAM ARRANGEMENTS, WE THINK
IT CLEAR THAT CONGRESS COULD RATIONALLY CHOOSE TO ADOPT SUCH A COURSE. 
LARGE NUMBERS OF PEOPLE ARE ELIGIBLE FOR THESE PROGRAMS AND ARE
POTENTIALLY SUBJECT TO INQUIRY AS TO THE VALIDITY OF THEIR
RELATIONSHIPS TO WAGE EARNERS.  THESE PEOPLE INCLUDE NOT ONLY THE
CLASSES WHICH APPELLEES REPRESENT, /13/ BUT ALSO CLAIMANTS IN OTHER
PROGRAMS FOR WHICH THE SOCIAL SECURITY ACT IMPOSES DURATION-OF
RELATIONSHIP REQUIREMENTS.  /14/  NOT ONLY DOES THE PROPHYLACTIC
APPROACH THUS OBVIATE THE NECESSITY FOR LARGE NUMBERS OF INDIVIDUALIZED
DETERMINATIONS, BUT IT ALSO PROTECTS LARGE NUMBERS OF CLAIMANTS WHO
SATISFY THE RULE FROM THE UNCERTAINTIES AND DELAYS OF ADMINISTRATIVE
INQUIRY INTO THE CIRCUMSTANCES OF THEIR MARRIAGES.  NOR IS IT AT ALL
CLEAR THAT INDIVIDUAL DETERMINATIONS COULD EFFECTIVELY FILTER OUT SHAM
ARRANGEMENTS, SINCE NEITHER MARITAL INTENT, LIFE EXPECTANCY, NOR
KNOWLEDGE OF TERMINAL ILLNESS HAS BEEN SHOWN BY APPELLEES TO BE
RELIABLY DETERMINABLE /15/  FINALLY, THE VERY POSSIBILITY OF PREVAILING
AT A HEARING COULD REASONABLY BE EXPECTED TO ENCOURAGE SHAM
RELATIONSHIPS. 

THE ADMINISTRATIVE DIFFICULTIES OF INDIVIDUAL ELIGIBILITY
DETERMINATIONS ARE WITHOUT DOUBT MATTERS WHICH CONGRESS MAY CONSIDER
WHEN DETERMINING WHETHER TO RELY ON RULES WHICH SWEEP MORE BROADLY THAN
THE EVILS WITH WHICH THEY SEEK TO DEAL.  IN THIS SENSE, THE DURATION-OF
RELATIONSHIP REQUIREMENT REPRESENTS NOT MERELY A SUBSTANTIVE POLICY
DETERMINATION THAT BENEFITS SHOULD BE AWARDED ONLY ON THE BASIS OF
GENUINE MARITAL RELATIONSHIPS, BUT ALSO A SUBSTANTIVE POLICY
DETERMINATION THAT LIMITED RESOURCES WOULD NOT BE WELL SPENT IN MAKING
INDIVIDUAL DETERMINATIONS.  IT IS AN EXPRESSION OF CONGRESS'  POLICY
CHOICE THAT THE SOCIAL SECURITY SYSTEM, AND ITS MILLIONS OF
BENEFICIARIES, WOULD BE BEST SERVED BY A PROPHYLACTIC RULE WHICH BARS
CLAIMS ARISING FROM THE BULK OF SHAM MARRIAGES WHICH ARE ACTUALLY
ENTERED, WHICH DISCOURAGES SUCH MARRAGES FROM EVER TAKING PLACE, AND
WHICH IS ALSO OBJECTIVE AND EASILY ADMINISTERED 

THE CONSTITUTION DOES NOT PRECLUDE SUCH POLICY CHOICES AS A PRICE
FOR CONDUCTING PROGRAMS FOR THE DISTRIBUTION OF SOCIAL INSURANCE
BENEFITS.  CF. GEDULDIG V. AIELLO, 417 U. S., AT 496.  UNLIKE CRIMINAL
PROSECUTIONS, OR THE CUSTODY PROCEEDINGS AT ISSUE IN STANLEY V.
ILLINOIS, SUCH PROGRAMS DO NOT INVOLVE AFFIRMATIVE GOVERNMENT ACTION
WHICH SERIOUSLY CURTAILS IMPORTANT LIBERTIES COGNIZABLE UNDER THE
CONSTITUTION.  THERE IS THUS NO BASIS FOR OUR REQUIRING INDIVIDUALIZED
DETERMINATIONS WHEN CONGRESS CAN RATIONALLY CONCLUDE NOT ONLY THAT
GENERALIZED RULES ARE APPROPRIATE TO ITS PURPOSES AND CONCERNS, BUT
ALSO THAT THE DIFFICULTIES OF INDIVIDUAL DETERMINATIONS OUTWEIGH THE
MARGINAL INCREMENTS IN THE PRECISE EFFECTUATION OF CONGRESSIONAL
CONCERN WHICH THEY MIGHT BE EXPECTED TO PRODUCE. 

THE JUDGMENT OF THE DITRICT COURT IS

                                  REVERSED. 

/1/ TITLE 42 U.S.C. 402 (G)(1) (1970 ED. AND SUPP. III) PROVIDES FOR
BENEFITS FOR THE "WIDOW" OF AN INSURED WAGE EARNER, REGARDLESS OF HER
AGE, IF SHE HAS IN HER CARE A "CHILD" OF SUCH WAGE EARNER WHO IS
ENTITLED TO CHILD'S INSURANCE BENEFITS.  TITLE 42 U.S.C. 402 (D) (1970
ED. AND SUPP. III) PROVIDES FOR BENEFITS FOR THE "CHILD" OF A DECEASED
INSURED WAGE EARNER WHO WAS DEPENDENT UPON HIM AT HIS DEATH. 

/2/ TITLE 42 U.S.C. A. 416 (C) (FEB. 1975 SUPP.) PROVIDES IN FULL: 

"(C) THE TERM 'WIDOW' (EXCEPT WHEN USED IN SECTION 402 (I) OF THIS
TITLE) MEANS THE SURVIVING WIFE OF AN INDIVIDUAL, BUT ONLY IF (1) SHE
IS THE MOTHER OF HIS SON OR DAUGHTER, (2) SHE LEGALLY ADOPTED HIS SON
OR DAUGHTER WHILE SHE WAS MARRIED TO HIM AND WHILE SUCH SON OR DAUGHTER
WAS UNDER THE AGE OF EIGHTEEN, (3) HE LEGALLY ADOPTED HER SON OR
DAUGHTER WHILE SHE WAS MARRIED TO HIM AND WHILE SUCH SON OR DAUGHTER
WAS UNDER THE AGE OF EIGHTEEN, (4) SHE WAS MARRIED TO HIM AT THE TIME
BOTH OF THEM LEGALLY ADOPTED A CHILD UNDER THE AGE OF EIGHTEEN, (5) SHE
WAS MARRIED TO HIM FOR A PERIOD OF NOT LESS THAN NINE MONTHS
IMMEDIATELY PRIOR TO THE DAY ON WHICH HE DIED, OR (6) IN THE MONTH
PRIOR TO THE MONTH OF HER MARRIAGE TO HIM (A) SHE WAS ENTITLED TO, OR
ON APPLICATION THEREFOR AND ATTAINMENT OF AGE 62 IN SUCH PRIOR MONTH
WOULD HAVE BEEN ENTITLED TO, BENEFITS UNDER SUBSECTION (B), (E), OR (H)
OF SECTION 402 OF THIS TITLE, (B) SHE HAD ATTAINED AGE EIGHTEEN AND WAS
ENTITLED TO, OR ON APPLICATION THEREFOR WOULD HAVE BEEN ENTITLED TO,
BENEFITS UNDER SUBSECTION (D) OF SUCH SECTION (SUBJECT, HOWEVER, TO
APPLICATION THEREFOR AND ATTAINMENT OF THE REQUIRED AGE (IF ANY) WOULD
HAVE BEEN ENTITLED TO, A WIDOW'S, CHILD'S (AFTER ATTAINMENT OF AGE 18),
OR PARENT'S INSURANCE ANNUITY UNDER SECTION 231A OF TITLE 45." 

IT IS UNDISPUTED THAT APPELLEE SALFI CANNOT QUALIFY AS A "WIDOW" BY
SATISFYING CONDITION (1), (2), (3), (4), OR (6). 

TITLE 42 U.S.C. 416 (E) (1970 ED., SUPP. III) PROVIDES IN PART:
"(E) CHILD. 

"THE TERM 'CHILD' MEANS (1) THE CHILD OR LEGALLY ADOPTED CHILD OF AN
INDIVIDUAL, (2) A STEPCHILD WHO HAS BEEN SUCH STEPCHILD FOR NOT LESS
THAN ONE YEAR IMEDIATELY PRECEDING THE DAY ON WHICH APPLICATION FOR
CHILD'S INSURANCE BENEFITS IS FILED OR (IF THE INSURED INDIVIDUAL IS
DECEASED) NOT LESS THAN NINE MONTHS IMMEDIATELY PRECEDING THE DAY ON
WHICH SUCH INDIVIDUAL DIED . . . ." 

PRIOR TO 1967, THE REQUIRED DURATION OF RELATIONSHIP WAS A FULL
YEAR.  THE REDUCTION TO NINE MONTHS WAS ACCOMPLISHED IN PUB. L. 90 -
248, 156 (A) AND (B), 81 STAT. 866. 

/3/ THE LITERAL WORDING OF THIS SECTION BARS ACTIONS UNDER 28 U.S.C.
41.  AT THE TIME 405 (H) WAS ENACTED, AND PRIOR TO THE 1948
RECODIFICATION OF TITLE 28, 41 CONTAINED ALL OF THAT TITLE'S GRANTS OF
JURISDICTION TO UNITED STATES DISTRICT COURTS, SAVE FOR SEVERAL SPECIAL
PURPOSE JURISDICTIONAL GRANTS OF NO RELEVANCE TO THE CONSTITUTIONALITY
OF SOCIAL SECURITY STATUTES. 

/4/ TITLE 42 U.S.C. 405 (H) PROVIDES IN FULL:  "FINALITY OF
SECRETARY'S DECISION. 

"THE FINDINGS AND DECISIONS OF THE SECRETARY AFTER A HEARING SHALL
BE BINDING UPON ALL INDIVIDUALS WHO WERE PARTIES TO SUCH HEARING.  NO
FINDINGS OF FACT OR DECISION OF THE SECRETARY SHALL BE REVIEWED BY ANY
PERSON, TRIBUNAL, OR GOVERNMENTAL AGENCY EXCEPT AS HEREIN PROVIDED.  NO
ACTION AGAINST THE UNITED STATES, THE SECRETARY, OR ANY OFFICER OR
EMPLOYEE THEREOF SHALL BE BROUGHT UNDER SECTION 41 OF TITLE 28 TO
RECOVER ON ANY CLAIM ARISING UNDER THIS SUBCHAPTER." 

/5/ TITLE 42 U.S.C. 405 (G) PROVIDES:  "JUDICIAL REVIEW. 

"ANY INDIVIDUAL, AFTER ANY FINAL DECISION OF THE SECRETARY MADE
AFTER A HEARING TO WHICH HE WAS A PARTY, IRRESPECTIVE OF THE AMOUNT IN
CONTROVERSY, MAY OBTAIN A REVIEW OF SUCH DECISION BY A CIVIL ACTION
COMMENCED WITHIN SIXTY DAYS AFTER THE MAILING TO HIM OF NOTICE OF SUCH
DECISION OR WITHIN SUCH FURTHER TIME AS THE SECRETARY MAY ALLOW.  SUCH
ACTION SHALL BE BROUGHT IN THE DISTRICT COURT OF THE UNITED STATES FOR
THE JUDICIAL DISTRICT IN WHICH THE PLAINTIFF RESIDES, OR HAS HIS
PRINCIPAL PLACE OF BUSINESS, OR, IF HE DOES NOT RESIDE OR HAVE HIS
PRINCIPAL PLACE OF BUSINESS WITHIN ANY SUCH JUDICIAL DISTRICT, IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  AS PART OF
HIS ANSWER THE SECRETARY SHALL FILE A CERTIFIED COPY OF THE TRANSCRIPT
OF THE RECORD INCLUDING THE EVIDENCE UPON WHICH THE FINDINGS AND
DECISION COMPLAINED OF ARE BASED.  THE COURT SHALL HAVE POWER TO ENTER,
UPON THE PLEADINGS AND TRANSCRIPT OF THE RECORD, A JUDGMENT AFFIRMING,
MODIFYING, OR REVERSING THE DECISION OF THE SECRETARY, WITH OR WITHOUT
REMANDING THE CAUSE FOR A REHEARING.  THE FINDINGS OF THE SECRETARY AS
TO ANY FACT, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE,
AND WHERE A CLAIM HAS BEEN DENIED BY THE SECRETARY OR A DECISION IS
RENDERED UNDER SUBSECTION (B) OF THIS SECTION WHICH IS ADVERSE TO AN
INDIVIDUAL WHO WAS A PARTY TO THE HEARING BEFORE THE SECRETARY, BECAUSE
OF FAILURE OF THE CLAIMANT OR SUCH INDIVIDUAL TO SUBMIT PROOF IN
CONFORMITY WITH ANY REGULATION PRESCRIBED UNDER SUBSECTION (A) OF THIS
SUCH REGULATIONS AND THE VALIDITY OF SUCH REGULATIONS.  THE COURT
SHALL, ON MOTION OF THE SECRETARY MADE BEFORE HE FILES HIS ANSWER,
REMAND THE CASE TO THE SECRETARY FOR FURTHER ACTION BY THE SECRETARY,
AND MAY, AT ANY TIME, ON GOOD CAUSE SHOWN, ORDER ADDITIONAL EVIDENCE TO
BE TAKEN BEFORE THE SECRETARY, AND THE SECRETARY SHALL, AFTER THE CASE
IS REMANDED, AND AFTER HEARING SUCH ADDITIONAL EVIDENCE IF SO ORDERED,
MODIFY OR AFFIRM HIS FINDINGS OF FACT OR ITS DECISION, OR BOTH, AND
SHALL FILE WITH THE COURT ANY SUCH ADDITIONAL AND MODIFIED FINDINGS OF
FACT AND DECISION, AND A TRANSCRIPT OF THE ADDITIONAL RECORD AND
TESTIMONY UPON WHICH HIS ACTION IN MODIFYING OR AFFIRMING WAS BASED. 
SUCH ADDITIONAL OR MODIFIED FINDINGS OF FACT AND DECISION SHALL BE
REVIEWABLE ONLY TO THE EXTENT PROVIDED FOR REVIEW OF THE ORGINAL
FINDINGS OF FACT AND DECISION.  THE JUDGMENT OF THE COURT SHALL BE
FINAL EXCEPT THAT IT SHALL BE SUBJECT TO REVIEW IN THE SAME MANNER AS A
JUDGMENT IN OTHER CIVIL ACTIONS.  ANY ACTION INSTITUTED IN ACCORDANCE
WITH THIS SUBSECTION SHALL SURVIVE NOTWITHSTANDING ANY CHANGE IN THE
PERSON OCCUPYING THE OFFICE OF SECRETARY OR ANY VACANCY IN SUCH
OFFICE." 

/6/ NOR CAN IT BE ARGUED THAT THE THIRD SENTENCE OF 405 (H) SIMPLY
SERVES TO PREVENT A BYPASS OF THE 405 (G) REQUIREMENTS BY FILING A
DISTRICT COURT COMPLAINT ALLEGING ENTITLEMENT PRIOR TO APPLYING FOR
BENEFITS THROUGH ADMINISTRATIVE CHANNELS.  THE ENTITLEMENT SECTIONS OF
THE ACT SPECIFY THE FILING OF AN APPLICATION AS A PREREQUISITE TO
ENTITLEMENT, SO A COURT COULD NOT IN ANY EVENT AWARD BENEFITS ABSENT AN
APPLICATION.  SEE 42 U.S.C. 402 (A)-(H) (1970 ED. AND SUPP. III).  SEE
ALSO 402 (J)(1).  ONCE THE APPLICATION IS FILED, IT IS EITHER APPROVED,
IN WHICH EVENT ANY SUIT FOR BENEFITS WOULD BE MOOTED, OR IT IS DENIED. 
EVEN IF THE DENIAL IS NONFINAL, IT IS STILL A "DECISION OF THE
SECRETARY" WHICH, BY VIRTUE OF THE SECOND SENTENCE OF 405 (H), MAY NOT
BE REVIEWED SAVE PURSUANT TO 405 (G). 

OUR BROTHER BRENNAN RELIES HEAVILY, POST, AT 790 - 792, ON A PASSAGE
FROM A SENATE DOCUMENT ENTITLED "MONOGRAPH OF THE ATTORNEY GENERAL'S
COMMITTEE ON ADMINISTRATIVE PROCEDURE."  S. DOC. NO. 10, 77TH CONG.,
1ST SESS., PT. 3, P. 39 (1941).  THE BASIC MONOGRAPH ITSELF IS
DESCRIBED AS "EMBODYING THE RESULTS OF THE INVESTIGATIONS MADE BY THE
STAFF OF SAID COMMITTEE RELATIVE TO THE (ADMINISTRATIVE) PRACTICES AND
PROCEDURES OF" SEVERAL AGENCIES OF THE GOVERNMENT.  ID., AT II.
FOLLOWING THE TEXT OF THE MONOGRAPH IS THE "APPENDIX," WHICH IN TURN IS
DESCRIBED IN A "FORWARD" AS FOLLOWS:  "THIS STATEMENT, DEVELOPED FROM A
REPORT BY THE BUREAU OF OLD-AGE AND SURVIVORS INSURANCE MAKING CERTAIN
RECOMMENDATIONS FOR THE BOARD'S CONSIDERATION, DESCRIBES THE ESSENTIAL
FEATURES OF A HEARING AND REVIEW SYSTEM WHICH HAS BEEN AUTHORIZED BY
THE BOARD AND WHICH IS DESIGNED TO MEET BOTH THE STATUTORY REQUIREMENTS
AND THE SOCIAL PURPOSES OF THE OLD-AGE AND SURVIVORS INSURANCE
PROGRAM.  IT HAS BEEN DEVELOPED DURING SEVERAL MONTHS UNDER THE
LEADERSHIP OF RALPH F. FUCHS, PROFESSOR OF LAW, WASHINGTON UNIVERSITY,
ST. LOUIS, MO., A CONSULTANT OF THIS BUREAU, BY WHOM THE BUREAU'S
REPORT, IN THE MAIN, WAS WRITTEN."  ID., AT 34.  AFTER THE "FOREWORD"
FOLLOWS A THREE-PART REPORT IN SOMEWHAT SMALLER TYPE, THE SECOND OF
WHICH PARTS IS ENTITLED "CONSIDERATIONS AFFECTING THE HEARING AND
REVIEW SYSTEM."  WITHIN THIS SECOND PART, APPEARS THE LANGUAGE WHICH
MR. JUSTICE BRENNAN'S DISSENT CHARACTERIZES AS "THE READING WHICH THE
SOCIAL SECURITY BOARD ITSELF GAVE TO THE PROVISION SOON AFTER IT WENT
INTO EFFECT."  POST, AT 790. 

WE HAVE SOME DOUBTS THAT THE REPORT OF A CONSULTANT CAN BE PROPERLY
CHARACTERIZED AS INCORPORATING THE "READING WHICH THE SOCIAL SECURITY
BOARD ITSELF GAVE" TO THIS PROVISION.  EVEN IF THE REPORT AS A WHOLE IS
STATED TO HAVE BEEN "APPROVED" BY THE BOARD, THERE IS NO INDICATION
THAT SUCH APPROVAL EXTENDS BEYOND THE REPORT'S BROAD-BRUSH
CONCEPTUALIZATION OF "THE ESSENTIAL FEATURES OF A HEARING AND REVIEW
SYSTEM."  IN ANY EVENT, WE DO NOT AGREE THAT AN ADMINISTRATIVE AGENCY'S
GENERAL DISCUSSION OF A STATUTE, OCCURRING AFTER ITS PASSAGE, AND IN A
CONTEXT WHICH DOES NOT REQUIRE IT TO FOCUS CLOSELY ON THE OPERATIVE
IMPACT OF A PARTICULAR PROVISION, IS EITHER AN IMPORTANT INDICATOR OF
CONGRESSIONAL INTENT, AS THE DISSENT SUGGESTS, POST, AT 792, OR AN
AUTHORITATIVE SOURCE FOR THE PROPOSITION THAT A PROVISION SERVES A
PARTICULAR FUNCTION.  FINALLY, EVEN IF THE REPORT IS AN ACCURATE
READING OF THE ACT, ITS SIGNIFICANCE GOES ONLY TO WHETHER THE THIRD
SENTENCE OF 405 (H) SERVES A FUNCTION IN ADDITION TO THAT WHICH WE
BELIEVE IT SERVES; THE POSSIBILITY THAT THE DISTRICT COURT'S
INTERPRETATION RENDERS THE THIRD SENTENCE ONLY LARGELY SUPERFLUOUS
RATHER THAN TOTALLY SO IS NOT SUFFICIENT TO DISTURB OUR ANALYSIS OF THE
ROLE OF THAT SENTENCE IN THIS CASE. 

/7/ TITLE II CONTAINS THE OLD-AGE, SURVIVORS, AND DISABILITY
INSURANCE PROGRAMS CODIFIED AT 42 U.S.C. 401 ET SEQ. 

/8/ SINCE 405 (G) IS THE BASIS FOR DISTRICT COURT JURISDICTION,
THERE IS SOME QUESTION AS TO WHETHER IT HAD AUTHORITY TO ENJOIN THE
OPERATION OF THE DURATION-OF-RELATIONSHIP REQUIREMENTS.  SECTION 405
(G) ACCORDS AUTHORITY TO AFFIRM, MODIFY, OR REVERSE A DECISION OF THE
SECRETARY.  IT CONTAINS NO SUGGESTION THAT A REVIEWING COURT IS
EMPOWERED TO ENTER AN INJUNCTIVE DECREE WHOSE OPERATION REACHES BEYOND
THE PARTICULAR APPLICANTS BEFORE THE COURT.  IN VIEW OF OUR
DISPOSITIONS OF THE CLASS-ACTION AND CONSTITUTIONAL ISSUES IN THIS
CASE, THE ONLY SIGNIFICANCE OF THIS PROBLEM GOES TO OUR OWN
JURISDICTION.  IF A 405 (G) COURT IS NOT EMPOWERED TO ENJOIN THE
OPERATION OF A FEDERAL STATUTE, THEN A THREE-JUDGE DISTRICT COURT WAS
NOT REQUIRED TO HEAR THIS CASE, 28 U.S.C. 2282, AND WE ARE WITHOUT
JURISDICTION UNDER 28 U.S.C. 1253.  HOWEVER, WHETHER OR NOT THE THREE
JUDGE COURT WAS PROPERLY CONVENED, THAT COURT DID HOLD A FEDERAL
STATUTE UNCONSTITUTIONAL IN A CIVIL ACTION TO WHICH A FEDERAL AGENCY
AND OFFICERS ARE PARTIES.  WE THUS HAVE DIRECT APPELLATE JURISDICTION
UNDER 28 U.S.C. 1252.  MCLUCAS V. DECHAMPLAIN, 421 U. S. 21, 31 - 32
(1975). 

/9/ TITLE 42 U.S.C. 405 (A): 

"THE SECRETARY SHALL HAVE FULL POWER AND AUTHORITY TO MAKE RULES AND
REGULATIONS AND TO ESTABLISH PROCEDURES, NOT INCONSISTENT WITH THE
PROVISIONS OF THIS SUBCHAPTER, WHICH ARE NECESSARY OR APPROPRIATE TO
CARRY OUT SUCH PROVISIONS, AND SHALL ADOPT REASONABLE AND PROPER RULES
AND REGULATIONS TO REGULATE AND PROVIDE FOR THE NATURE AND EXTENT OF
THE PROOFS AND EVIDENCE AND THE METHOD OF TAKING AND FURNISHING THE
SAME IN ORDER TO ESTABLISH THE RIGHT TO BENEFITS HEREUNDER." 

/10/ SECTION 405 (G) JURISDICTION IN WEINBERGER V. WIESENFELD, 420
U. S. 636 (1975), WAS SIMILARLY PRESENT.  IN THAT CASE THE SECRETARY
STIPULATED THAT EXHAUSTION WOULD HAVE BEEN FUTILE, AND HE DID NOT MAKE
ANY CONTENTIONS THAT WIESENFELD HAD NOT COMPLIED WITH THE REQUIREMENTS
OF 405 (G).  ID., AT 641 N. 8. 

/11/ THE SECRETARY ALSO BRIEFLY ARGUES THAT THE DURATION-OF
RELATIONSHIP REQUIREMENT RATIONALLY SERVES THE INTEREST IN PROVIDING
BENEFITS ONLY FOR PERSONS WHO ARE LIKELY TO HAVE BECOME DEPENDENT UPON
THE WAGE EARNER.  BRIEF FOR APPELLANTS 11 - 12.  IN VIEW OF OUR
CONCLUSION WITH REGARD TO HIS PRINCIPAL ARGUMENT, WE NEED NOT CONSIDER
THIS JUSTIFICATION. 

/12/ SIMILARLY, THE NATURAL OR ADOPTED CHILD OF A DECEASED WAGE
EARNER NEED NOT MEET THE NINE-MONTH REQUIREMENT.  SEE 42 U.S.C. 416 

/13/ ACCORDING TO THE SOCIAL SECURITY ADMINISTRATION, IN CALENDAR
(E)(1) (1970 ED., SUPP. III).  1973 THERE WERE 125,000 APPLICANTS FOR
MOTHER'S BENEFITS, 1,313,000 FOR CHILD'S BENEFITS, AND 403,000 FOR
WIDOW'S/WIDOWER'S BENEFITS.  WHILE THESE FIGURES INCLUDE LARGE NUMBERS
OF PERSONS WHO QUALIFY ON BASES OTHER THAN THE DURATION OF THEIR
RELATIONSHIP WITH A WAGE EARNER, THEY ALSO DOUBTLESSLY EXCLUDE PERSONS
WHO DID NOT EVEN APPLY BECAUSE OF THE DURATIONAL RESTRICTION, OR WHO
WERE THEREBY DISSUADED FROM ENTERING THE RELATIONSHIP.  A FEEL FOR THE
MAGNITUDE OF THE POTENTIAL FOR CASE-BY-CASE DETERMINATIONS CAN ALSO BE
DEVELOPED BY REFERENCE TO THE SOCIAL SECURITY ADMINISTRATION'S ESTIMATE
THAT JUDGMENT FOR THE CLASS WHICH THE NAMED APPELLEES SOUGHT TO
REPRESENT WOULD INVOLVE PAYMENTS OF $30 MILLION, ASSUMING RETROACTIVITY
TO 1967.  THIS FIGURE DOES NOT REFLECT PAYMENTS IN BEHALF OF PERSONS
WHO MET THE OBJECTIVE NINE-MONTH REQUIREMENT, OR WHO COULD NOT MEET IT
AND THEREFORE EITHER NEVER APPLIED OR NEVER ENTERED THE RELATIONSHIP. 

/14/ SEE 42 U.S.C. 416 (B), (F), AND (G), DEFINING "WIFE,"
"HUSBAND," AND "WIDOWER."  THESE VARIOUS DEFINITIONS IMPOSE DURATION-OF
RELATIONSHIP REQUIREMENTS WITH REGARD TO "WIFE'S" BENEFITS, 42 U.S.C.
402 (B) (1970 ED. AND SUPP. III), "HUSBAND'S" BENEFITS, 42 U.S.C. 402
(C), AND "WIDOWER'S" BENEFITS, 42 U.S.C. 402 (F) (1970 ED. AND SUPP.
III).  IN ADDITION, "WIDOW'S BENEFITS, 42 U.S.C. 402 (E) (1970 ED.AND
SUPP. III), ARE AVAILABLE ONLY TO THOSE WOMEN WHO SATISFY 416 (C)'S
DEFINITION OF "WIDOW."  "PARENT'S" BENEFITS, 42 U.S.C. 402 (H), ARE
ALSO SUBJECT TO AN OBJECTIVE ELIGIBILITY REQUIREMENT WHICH IS SIMILAR
TO A DURATION-OF-RELATIONSHIP REQUIREMENT.  UNDER 42 U.S.C. 402 (H)(3),
STEPPARENTS AND ADOPTIVE PARENTS MAY RECEIVE BENEFITS WITH RESPECT TO A
DECEASED CHILD WHO WAS PROVIDING AT LEAST HALF OF THEIR SUPPORT, BUT
ONLY IF THE MARRIAGE OR ADOPTION CREATING THEIR RELATIONSHIP OCCURRED
PRIOR TO THE CHILD'S 16TH BIRTHDAY. 

/15/ APPELLEES DO NOT CONTEND THAT MARITAL INTENT OR LIFE EXPECTANCY
CAN BE RELIABLY DETERMINED.  THEY ARGUE, HOWEVER, THAT BECAUSE A
MARRIAGE COULD NOT BE ENTERED IN CONTEMPLATION OF IMMINENT DEATH UNLESS
THE WAGE EARNER'S "TERMINAL ILLNESS" WAS KNOWN, THE INQUIRY NEED GO NO
FARTHER THAN THE ISSUE OF WHETHER THE PARTIES TO THE MARRIAGE KNEW OF
SUCH AN ILLNESS.  THEY CLAIM THAT APPLICANTS COULD DEMONSTRATE THE
STATE OF THEIR KNOWLEDGE BY PHYSICIANS' AFFIDAVITS OR DOCUMENTARY
MEDICAL EVIDENCE.  THESE CONTENTIONS ARE NOT, HOWEVER, SUPPORTED BY ANY
FACTUAL REBUTTALS OF THE VARIETY OF DIFFICULTIES WHICH CONGRESS WAS
ENTITLED TO EXPECT TO BE ENCOUNTERED.  SEE MCGOWAN V. MARYLAND, 366 U.
S. 420, 426 (1961). 

FOR EXAMPLE, ALL EVIDENCE OF "KNOWLEDGE OF TERMINAL ILLNESS" WOULD
ORDINARILY BE UNDER THE CONTROL OF APPLICANTS, WHICH SUGGESTS THAT THEY
SHOULD BEAR THE BURDEN OF PROOF.  BUT THIS BURDEN COULD BE CONVINCINGLY
CARRIED ONLY WITH RESPECT TO WAGE EARNERS WHO HAPPENED TO HAVE HAD
PHYSICAL EXAMINATIONS SHORTLY BEFORE THEIR WEDDINGS; ON THE OTHER HAND,
AWARDING BENEFITS WHERE THE WAGE EARNER HAD NOT HAD AN EXAMINATION, AND
NO MEDICAL EVIDENCE WAS AVAILABLE, WOULD ENCOURAGE PARTICIPANTS IN SHAM
ARRANGEMENTS TO CONCEAL THEIR OWN ADVERSE MEDICAL EVIDENCE.  EVEN WHEN
ADEQUATE MEDICAL EVIDENCE WAS AVAILABLE THERE COULD EASILY BE
DIFFICULTIES IN DETERMINING WHETHER A WAGE EARNER'S PHYSICAL CONDITION
AMOUNTED TO A "TERMINAL ILLNESS"; IF THAT CONCEPT WERE RESTRICTED TO
CONDITIONS WHICH WERE VIRTUALLY CERTAIN TO RESULT IN AN EARLY DEATH,
BENEFITS WOULD PROBABLY BE TOO BROADLY AVAILABLE, SINCE CERTAINTY OF
IMMINENT DEATH RATHER THAN A MERE HIGH PROBABILITY OF IT IS NOT A
PREREQUISITE TO A SHAM RELATIONSHIP; YET INQUIRIES INTO THE DEGREE OF
LIKELIHOOD OF DEATH COULD BECOME VERY COMPLEX INDEED. 

ADDITIONAL PROBLEMS WITH APPELLEES' PROPOSED TEST ARISE BECAUSE IT,
LIKE THE DURATION-OF-RELATIONSHIP REQUIREMENT, IS NOT PRECISELY RELATED
TO THE OBJECTIVE OF DENYING BENEFITS WHICH ARE SOUGHT ON THE BASIS OF
SHAM RELATIONSHIPS.  IN THE FIRST PLACE, IT PRESUMABLY WOULD BE
NECESSARY TO LIMIT THE REQUIREMENT OF TERMINAL ILLNESS INQUIRIES TO
INSTANCES IN WHICH DEATH OCCURRED WITHIN A SPECIFIED PERIOD AFTER
MARRIAGE.  IT WOULD ALSO APPEAR TO BE NECESSARY TO SET AN OUTSIDE LIMIT
ON THE LENGTH OF THE PERIOD WITHIN WHICH DEATH WAS EXPECTED THAT WOULD
DISQUALIFY APPLICANTS (AFTER ALL, AND PARAPHRASING LORD KEYNES, IN THE
LONG RUN WE ARE ALL EXPECTED TO DIE).  YET THERE WILL ALWAYS BE PERSONS
ON ONE SIDE OF SUCH LINES WHO ARE SERIOUSLY DISADVANTAGED VIS-A-VIS
PERSONS ON THE OTHER SIDE.  MORE BASICALLY, APPELLEES' TEST WOULD
CLEARLY EXCLUDE PERSONS WHO KNEW OF A WAGE EARNER'S IMMINENT DEATH, BUT
WHO ENTERED THEIR MARRIAGES FOR REASONS ENTIRELY UNRELATED TO SOCIAL
SECURITY BENEFITS, SUCH AS TO FULFILL THE PROMISES OF A LONSTANDING
ENGAGEMENT.  THUS APPELLEES' PROPOSED TEST WOULD BE SUBJECT TO EXACTLY
THE SAME CONSTITUTIONAL ATTACKS WHICH THEY DIRECT TOWARD THE TEST ON
WHICH CONGRESS CHOSE TO RELY. 

APPELLEES POINT OUT THAT 42 U.S.C. 416 (K) (1970 ED.,SUPP.III)
PROVIDES FOR LIMITED EXCEPTIONS TO THE DURATION-OF-RELATIONSHIP
REQUIREMENT, UNLESS THE SECRETARY DETERMINES THAT AT THE TIME OF THE
MARRIAGE THE WAGE EARNER "COULD NOT HAVE REASONABLY BEEN EXPECTED TO
LIVE FOR NINE MONTHS."  THEY ARGUE THAT THIS REPRESENTS CONGRESS'
RECOGNITION THAT CASE-BY-CASE CONSIDERATION WOULD NOT IMPOSE AN
INORDINATE ADMINISTRATIVE BURDEN.  THE ARGUMENT IS WITHOUT MERIT. 
INQUIRIES WITH REGARD TO LIMITED CLASSES WHICH BEAR PARTICULAR INDICES
OF GENUINENESS (THE SECTION IS APPLICABLE IN CASES OF ACCIDENTAL DEATH,
DEATH IN THE LINE OF MILITARY DUTY, AND REMARRIAGES OF PERSONS
PREVIOUSLY MARRIED FOR MORE THAN NINE MONTHS).  THIS SAYS NOTHING ABOUT
THE FEASIBILITY OF MAKING SUCH INQUIRIES IN OTHER CIRCUMSTANCES, MUCH
LESS THE RATIONALITY OF CHOOSING NOT TO DO SO. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH MR. JUSTICE BRENNAN THAT BECAUSE THERE IS CLEARLY
JURISDICTION THE COURT'S EXTENDED DISCUSSION OF THE SUBJECT IS
UNWARRANTED. 

ON THE MERITS, I BELIEVE THAT THE MAIN PROBLEM WITH THESE
LEGISLATIVELY CREATED PRESUMPTIONS IS THAT THEY FREQUENTLY INVADE THE
RIGHT TO A JURY TRIAL.  SEE TOT V. UNITED STATES, 319 U. S. 463, 473
(1943) (BLACK, J., CONCURRING).  THE PRESENT LAW WAS DESIGNED TO BAR
PAYMENT OF CERTAIN SOCIAL SECURITY BENEFITS WHEN THE PURPOSE OF THE
MARRIAGE WAS TO OBTAIN SUCH BENEFITS.  WHETHER THIS WAS THE AIM OF A
PARTICULAR MARRIAGE IS A QUESTION OF FACT, TO BE DECIDED BY THE JURY IN
AN APPROPRIATE CASE.  I THEREFORE WOULD VACATE AND REMAND THE CASE TO
GIVE MRS. SALFI THE RIGHT TO SHOW THAT HER MARRIAGE DID NOT OFFEND THE
STATUTORY SCHEME, THAT IT WAS NOT A SHAM. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING.  CE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS, 

THE DISTRICT COURT DID NOT ERR, IN MY VIEW, EITHER IN HOLDING THAT
IT HAD JURISDICTION BY VIRTUE OF 28 U.S.C. 1331, OR IN HOLDING THAT THE
NINE-MONTH REQUIREMENTS OF 42 U.S.C. 416 (C)(5) AND (E)(2) (1970 ED.
AND SUPP. III) ARE CONSTITUTIONALLY INVALID. 

 I

        JURISDICTION 

THE JURISDICTIONAL ISSUE TO WHICH THE COURT DEVOTES 10 PAGES, ONLY
TO CONCLUDE THAT THERE IS INDEED JURISDICTION OVER THE MERITS OF THIS
CASE BOTH HERE AND IN THE DISTRICT COURT, WAS NOT RAISED IN THIS COURT
BY THE PARTIES BEFORE US NOR ARGUED, EXCEPT MOST PERIPHERRALLY, /1/ IN
THE BREIFS OR AT ORAL ARGUMENT.  THE QUESTION INVOLVES COMPLICATED
QUESTIONS OF LEGISLATIVE INTENT AND A STATUTORY PROVISION, 42 U.S.C.
405 (H), WHICH HAS BAFFLED DISTRICT COURTS AND COURTS OF APPEALS FOR
YEARS IN THIS AND OTHER CONTEXTS.  /2/  OF COURSE, THIS COURT IS ALWAYS
OBLIGED TO INQUIRE INTO ITS OWN JURISDICTION, WHEN THERE IS A
SUBSTANTIAL QUESTION ABOUT WHETHER JURISDICTION IS PROPER EITHER IN THE
LOWER COURTS OR IN THIS COURT.  BUT SINCE HERE THERE IS, ACCORDING TO
THE COURT, JURISDICTION OVER THE CAUSE OF ACTION IN ANY EVENT, /3/ I
WOULD HAVE THOUGHT IT THE WISER COURSE MERELY TO NOTE THAT THERE WAS
JURISDICTION IN THE DISTRICT COURT EITHER UNDER 28 U.S.C. 1331 OR UNDER
42 U.S.C. 405 (G), LEAVING THE RESOLUTION OF THE QUESTION OF WHICH IS
APPLICABLE TO A CASE IN WHICH THE DECISION IS OF SOME CONSEQUENCE, AND
IN WHICH THE PARTIES HAVE, EITHER OF THEIR OWN VOLITION OR UPON REQUEST
OF THE COURT, BRIEFED AND ARGUED THE ISSUE.  /4/  SURELY, THE COURT
DOES NOT INTEND TO ADOPT A NEW POLICY OF ALWAYS ON ITS OWN CANVASSING,
WITH A FULL DISCUSSION, ALL JURISDICTIONAL ISSUES LURKING BEHIND EVERY
CASE, WHETHER OR NOT THE ISSUE HAS ANY IMPACT AT ALL ON THE RESOLUTION
OF THE CASE.     BECAUSE THE COURT NONETHELESS TREATS THE QUESTION
FULLY, I AM OBLIGED TO DO SO AS WELL.  FOR, AT LEAST INSOFAR AS MY OWN
RESEARCH AND CONSIDERATION, UNAIDED BY THE HELP ORDINARILY OFFERED BY
ADVERSARY CONSIDERATION, IS ADEQUATE, I AM CONVINCED THAT THE COURT IS
QUITE WRONG ABOUT THE INTENDED REACH OF 405 (H), AND THAT ITS
CONSTRUCTION ATTRIBUTES TO CONGRESS A PURPOSE BOTH CONTRARY TO ALL
ESTABLISHED NOTIONS OF ADMINISTRATIVE EXHAUSTION AND ABSOLUTELY WITHOUT
SUPPORT IN THE CLEAR LANGUAGE OR LEGISLATIVE HISTORY OF THE STATUE. 
FUTHER, TODAY'S DECISION IS IN SQUARE CONFLICT WITH JOHNSON V. ROBISON,
415 U. S. 361 (1974).  AND FINALLY, EVEN IF 405 (G) IS THE EXCLUSIVE
ROUTE FOR ADJUDICATING ACTIONS SEEKING PAYMENT OF A CLAIM, I DO NOT SEE
HOW IT CAN APPLY TO THE DECLARATORY AND INJUNCTIVE ASPECTS OF THIS
SUIT. 

        A 

THE COURT REJECTS THE DISTRICT COURT'S CONCLUSION THAT 405 (H) IS NO
MORE THAN A CODIFIED REQUIREMENT OF ADMINISTRATIVE EXHAUSTION ON THE
BASIS OF THE THIRD SENTENCE OF THE SECTION, WHICH IT CHARACTERIZES AS
"SWEEPING AND DIRECT AND (STATING) THAT NO ACTION SHALL BE BROUGHT
UNDER 1331, NOT MERELY THAT ONLY THOSE ACTIONS SHALL BE BROUGHT IN
WHICH ADMINISTRATIVE REMEDIES HAVE BEEN EXHAUSTED."  ANTE, AT 757.  BUT
THE SENTENCE DOES NOT SAY THAT NO ACTION OF ANY KIND SHALL BE BROUGHT
UNDER 1331, OR OTHER GENERAL GRANTS OF JURISDICTION, WHICH MAY RESULT
IN ENTITLING SOMEONE TO BENEFITS UNDER TITLE II OF THE ACT; IT SAYS
MERELY THAT NO ACTION SHALL BE BROUGHT UNDER 1331 ET SEQ. "TO RECOVER
ON ANY CLAIM ARISING UNDER (TITLE II)."  (EMPHASIS ADDED.)  THIS
ACTION, I BELIEVE, DOES NOT "ARISE UNDER" TITLE II IN THE MANNER
INTENDED BY 405 (H), AND IT IS, AT LEAST IN PART, NOT AN ACTION TO
"RECOVER" ON A CLAIM.  SEE PARTS B AND C, INFRA. 

WHICH ARISE UNDER TITLE II IN THE SENSE THAT THEY REQUIRE THE
APPLICATION OF THE STATUTE TO A SET OF FACTS, AND WHICH SEEK NOTHING
MORE THAN A DETERMINATION OF ELIGIBILITY CLAIMED TO ARISE UNDER THE
ACT.  THUS, I BASICALLY AGREE WITH THE DISTRICT COURT THAT 405 (H),
INCLUDING ITS LAST SENTENCE, MERELY CODIFIES THE USUAL REQUIREMENTS OF
ADMINISTRATIVE EXHAUSTION.  THE LAST SENTENCE, IN PARTICULAR, PROVIDES
THAT A PLAINTIFF CANNOT AVOID 405 (G) AND THE FIRST TWO SENTENCES OF
405 (H) BY BRINGING AN ACTION UNDER A GENERAL GRANT OF JURISDICTION
CLAIMING THAT THE SOCIAL SECURITY ACT ITSELF PROVIDES HIM CERTAIN
RIGHTS.  RATHER, ON SUCH A CLAIM A PLAINTIFF MUST EXHAUST
ADMINISTRATIVE REMEDIES, AND THE DISTRICT COURT IS LIMITED TO REVIEW OF
THE SECRETARY'S DECISION, IN THE MANNER PRESCRIBED BY 405 (G). 

THE COURT SUGGESTS THAT THIS READING OF 405 (H) MAKES THE LAST
SENTENCE REDUNDANT.  BUT THIS IS THE READING WHICH THE SOCIAL SECURITY
BOARD ITSELF GAVE TO THE PROVISION SOON AFTER IT WENT INTO EFFECT.  IN
A DOCUMENT PREPARED FOR AND APPROVED BY THE BOARD IN JANUARY 1940 AS AN
OUTLINE OF THE PROCEDURES TO BE FOLLOWED UNDER THE NEWLY ENACTED SOCIAL
SECURITY ACT AMENDMENTS OF 1939, /5/ THE INTERACTION BETWEEN 405 (G)
AND (H) IS DESCRIBED AS FOLLOWS: 

     "THE JUDICIAL REVIEW SECTION OF THE ACT, SECTION (405 (G)),

  PROVIDES FOR CIVIL SUITS AGAINST THE SOCIAL SECURITY BOARD IN THE

  UNITED STATES DISTRICT COURTS.  THESE MAY BE FILED BY PARTIES TO

  HEARINGS BEFORE THE BOARD WHO ARE DISSATISFIED WITH FINAL

  DECISIONS OF THE BOARD.  THE REVIEW OF THE BOARD'S ACTIONS IN

  THESE SUITS WILL CONSIST OF A REVIEW OF THE BOARD'S RECORDS IN

  THESE CASES.  THUS, ON THE ONE HAND, THE BOARD IS PROTECTED

  AGAINST THE POSSIBILITY OF REVERSALS OF ITS DECISIONS IN SEPARATE

  ACTIONS FILED FOR THE PURPOSE . . . . ACTIONS OF THIS KIND ARE

  SPECIFICALLY EXCLUDED BY SECTION (405 (H)).  ON THE OTHER HAND,

  JUDICIAL REVIEW ON THE BASIS OF THE BOARD'S RECORDS IN THE CASES

  MAKES IT NECESSARY THAT THE RECORD IN EACH CASE BE IN THE BEST

  POSSIBLE STATE SO AS TO AVOID DIFFICULTIES IF A CHALLENGE IN

  COURT OCCURS."  FEDERAL SECURITY AGENCY, SOCIAL SECURITY BOARD,

  BASIC PROVISIONS ADOPTED BY THE SOCIAL SECURITY BOARD FOR THE

  HEARING AND REVIEW OF OLD-AGE AND SUVIVORS INSURANCE CLAIMS WITH

  A DISCUSSION OF CERTAIN ADMINISTRATIVE PROBLEMS AND LEGAL

  CONSIDERATION (1940), IN ATTORNEY GENERAL'S COMMITTEE ON

  ADMINISTRATIVE PROCEDURE, ADMINISTRATIVE PROCEDURES IN GOVERNMENT

  AGENCIES, S. DOC. NO. 10, 77TH CONG., 1ST SESS., PT. 3, P. 39

  (1941). 

SINCE THE LAST SENTENCE OF 405 (H) IS THE ONLY PART OF THE SECTION
WHICH "SPECIFICALLY EXCLUDES)" ANY "ACTION," THE ITALICIZED PORTION
OBVIOUSLY REFERS TO THAT SENTENCE. 

THUS, THE AGENCY RESPONSIBLE FOR THE ENFORCEMENT OF TITLE II ADOPTED
A CONSTRUCTION OF THE STATUTE WHICH GAVE THE LAST SENTENCE THE VERY
MEANING WHICH THE COURT NOW REJECTS AS "SUPERFLUOUS" AND "ALREADY
PERFORMED BY OTHER STATUTORY PROVISIONS."  ANTE, AT 757, 759, AND N.
6.  AS EXPLAINED IN THE MARGIN, /6/ THE SENTENCE IS NOT SUPERFLUOUS,
AND THE BOARD OBVIOUSLY DID NOT REGARD IT AS SUCH.  ADMINISTRATIVE
INTERPRETATIONS BY AGENCIES OF STATUTES WHICH THEY ADMINISTER ARE
ORDINARILY ENTITLED TO GREAT WEIGHT, SEE, E. G., JOHNSON V. ROBISON,
415 U. S., AT 367 - 368; UDALL V. TALLMAN, 380 U. S. 1, 16 (1965).  AND
IN THIS INSTANCE, THE CONTEMPORARY SOCIAL SECURITY BOARD WAS INTIMATELY
INVOLVED IN THE FORMULATION OF THE 1939 AMENDMENTS, /7/  AND THUS MUST
BE PRESUMED TO HAVE HAD INSIGHT INTO THE LEGISLATIVE INTENT.  /8/ 

INDEED, TO ADOPT THE COURT'S VIEW OF THE LAST SENTENCE OF 405 (H)
IS, AS FAR AS I CAN DETERMINE, TO ASSUME THAT IT WAS INSERTED PRECISELY
TO COVER THE SITUATION HERE--A SUIT ATTACKING THE CONSTITUTIONALITY OF
A SECTION OF TITLE II AND SEEKING TO ESTABLISH ELIGIBILITY DESPITE THE
PROVISIONS OF THE STATUTE.  YET, THE COURT IS ABLE TO POINT TO NO
EVIDENCE AT ALL THAT CONGRESS WAS CONCERNED WITH THIS KIND OF LAWSUIT
WHEN IT FORMULATED THESE SECTIONS, AND I HAVE NOT BEEN ABLE TO FIND ANY
EITHER. 

WITHOUT ANY CLEAR EVIDENCE, INDEED WITHOUT ANY EVIDENCE, THE COURT
SHOULD NOT ATTRIBUTE TO CONGRESS AN INTENTION TO FILTER THROUGH 405 (G)
THIS SORT OF CONSTITUTIONAL ATTACK.  "ADJUDICATION OF THE
CONSTITUTIONALITY OF CONGRESSIONAL ENACTMENTS HAS GENERALLY BEEN
THOUGHT BEYOND THE JURISDICTION OF ADMINISTRATIVE AGENCIES." 
OESTEREICH V. SELECTIVE SERVICE BD., 393 U. S. 233, 242 (1968) (HARLAN,
J., CONCURRING IN RESULT); JOHNSON V. ROBINSON, 415 U. S., AT 368.  /9/
SEE 3 K. DAVIS, ADMINISTRATIVE LAW TREATISE 20.04 (1958).  THUS, IN A
CASE SUCH AS THIS ONE, IN WHICH NO FACTS ARE IN DISPUTE AND NO OTHER
EXHAUSTION WAS WHETHER TO REQUIRE EXHAUSTION OF NONEXISTENT
ADMINISTRATIVE REMEDIES."  ID., AT 78.  SEE AIRCRAFT & DIESEL EQUIPMENT
CORP. V. HIRSCH, 331 U. S. 752, 773 (1947).  TO ASSUME, WITH NO BASIS
IN THE LEGISLATIVE HISTORY OR IN THE CLEAR WORDS OF THE STATUTE, THAT
CONGRESS INTENDED TO REQUIRE EXHAUSTION IN THIS KIND OF CASE, IS TO
IMPUTE TO CONGRESS A REQUIREMENT OF FUTILE EXHAUSTION, IN WHICH THE
ONLY ISSUES IN THE CASE ARE NOT DISCUSSED, IN WHICH THE ACTUAL ISSUES
ARE IN NO WAY CLARIFIED, IN WHICH NO FACTUAL FINDINGS ARE MADE, AND IN
WHICH THERE IS NO AGENCY EXPERTISE TO APPLY.  I SEE NO BASIS FOR
IMPUTING SUCH AN ODD INTENT, ESPECIALLY SINCE, AS DISCUSSED BELOW, I
BELIEVE THE CLEAR IMPORT OF THE WORDING OF THE STATUTE IS TO THE
CONTRARY. 

        B 

I THINK IT QUITE CLEAR THAT A CLAIM "ARISING UNDER" TITLE II IS ONE
WHICH ALLEGES THAT THE TITLE GRANTS SOMEONE CERTAIN RIGHTS.  THIS CLAIM
DOES NOT "ARISE UNDER" THE TITLE BECAUSE, IF THE STATUTE ITSELF WERE
APPLIED, MRS. SALFI WOULD CERTAINLY LOSE.  INSTEAD, THIS CASE "ARISES
UNDER" THE CONSTITUTION AND SEEKS TO HOLD INVALID THE RESULT WHICH
WOULD BE REACHED UNDER THE STATUTE ITSELF.  JOHNSON V. ROBISON, SUPRA,
AS WELL AS CASES CONSTRUING THE MEANING OF "ARISING UNDER" IN OTHER
JURISDICTIONAL STATUTES, /10/ DICTATE THIS RESULT. 

IN JOHNSON, CONSTRUING THE LANGUAGE WHICH APPEARS ANTE, AT 761, WE
SAID, 415 U. S., AT 367: 

"THE PROHIBITIONS WOULD APPEAR TO BE AIMED AT REVIEW ONLY OF THOSE
DECISIONS OF LAW OR FACT THAT ARISE IN THE ADMINISTRATION BY THE
VETERANS' ADMINISTRATION OF A STATUTE PROVIDING BENEFITS FOR VETERANS. 
A DECISION OF LAW OR FACT 'UNDER' A STATUTE IS MADE BY THE
ADMINISTRATOR IN THE INTERPRETATION OR APPLICATION OF A PARTICULAR
PROVISION OF THE STATUTE TO A PARTICULAR SET OF FACTS.  . . . THUS.  .
. .'(THE QUESTIONS OF LAW PRESENTED IN THESE PROCEEDINGS ARISE UNDER
THE CONSTITUTION, NOT UNDER THE STATUTE WHOSE VALIDITY CHALLENGED.'" 
(CITATION OMITTED.) 

THE COURT, ANTE, AT 761 - 762, SUGGESTS THAT THIS INTERPRETATION
TURNED ON THE PRECISE WORDING OF THE STATUTE CONSTRUED IN JOHNSON,
SPECIFICALLY ON THE WORDS "DECISIONS . . . ON ANY QUESTION OF LAW AND
FACT."  FIRST, AS THE QUOTATION ABOVE SHOWS, JOHNSON IN FACT
CONCENTRATED NOT UPON WHAT CONSTITUTES A "DECISION" OF THE
ADMINISTRATOR BUT UPON WHAT IS A DECISION "UNDER" A STATE.  BUT MORE
SIGNIFICANTLY, THE STATUTE CONSTRUED IN JOHNSON HAD, BETWEEN 1957 AND
1970, READ IN PART: 

"(DECISIONS OF THE ADMINISTRATOR ON ANY QUESTION OF LAW OR FACT
CONCERNING A CLAIM FOR BENEFITS OR PAYMENTS UNDER ANY LAW ADMINISTERED
BY THE VETERANS' ADMINISTRATION SHALL BE FINAL AND CONCLUSIVE . . . ." 
38 U.S.C. 211 (A) (1964 ED.,SUPP.  V) (EMPHASIS ADDED).  SEE JOHNSON,
415 U. S., AT 368 - 369, N. 9.  THE ITALICIZED LANGUAGE IS OBVIOUSLY
QUITE SIMILAR TO THAT USED IN 405 (H).  THE COURT'S OPINION IN JOHNSON
MADE CLEAR THAT THE HOLDING THAT THE SECTION DOES NOT APPLY TO
CONSTITUTIONAL ATTACKS ON VETERANS' BENEFITS LEGISLATION ENCOMPASSES
ALL PRIOR VERSIONS OF THE SECTION, AND THAT THE "CLAIM FOR BENEFITS"
LANGUAGE IN NO WAY AFFECTED THIS CONSTRUCTION OF THE STATUTE.  /11/ 

ASIDE FROM JOHNSON, OUR CASES CONCERNING THE MEANING OF "ARISING
UNDER" IN THE JURISDICTIONAL STATUTES AFFIRM THAT THIS CLAIM ARISES
UNDER THE CONSTITUTION AND NOT UNDER THE SOCIAL SECURITY ACT.  WE HAVE
CONSISTENTLY HELD THAT A CONTROVERSY REGARDING TITLE TO LAND DOES NOT
"ARISE UNDER" FEDERAL LAW "MERELY BECAUSE ONE OF THE PARTIES TO IT HAS
DERIVED HIS TITLE UNDER AN ACT OF CONGRESS."  SHULTHIS V. MCDOUGAL, 225
U. S. 561, 570 (1912).  SEE ONEIDA INDIAN NATION V. COUNTY OF ONEIDA,
414 U. S. 661, 676 AND N. 11 (1974).  RATHER, SUIT TO ENFORCE A RIGHT
WHICH TAKES ITS ORIGIN IN THE LAWS OF THE UNITED STATES IS NOT
NECESSARILY ONE ARISING UNDER THE . . . LAWS OF THE UNITED STATES." 
SHOSHONE MINING CO. V. RUTTER, 177 U. S. 505, 507 (1900); ONEIDA
NATION, SUPRA, AT 683 (REHNQUIST, J., CONCURRING).  UNLESS THE DISPUTE
REQUIRES, FOR ITS RESOLUTION, A DECISION CONCERNING FEDERAL LAW, THE
CASE DOES NOT ARISE UNDER FEDERAL LAW EVEN IF, BUT FOR A FEDERAL
STATUTE, THERE WOULD BE NO RIGHT AT ALL.  SHULTHIS V. MCDOUGAL, SUPRA,
AT 569; ONEIDA NATION, SUPRA, AT 677. 

THUS, "ARISING UNDER" IS A TERM OF ART IN JURISDICTIONAL STATUTES
REFERRING, AT LEAST IN PART, TO THE BODY OF LAW NECESSARY TO CONSIDER
IN ORDER TO DETERMINE THE RIGHTS IN QUESTION.  HERE, THERE IS NO
DISPUTE ABOUT THE APPLICATION OF THE SOCIAL SECURITY ACT; THE ONLY
CONTROVERSY CONCERNS WHETHER THE CONSTITUTION PERMITS THE RESULT WHICH
THE SOCIAL SECURITY ACT WOULD REQUIRE.  THEREFORE, THIS CASE DOES NOT
CONCERN A "CLAIM ARISING UNDER" TITLE II, AND IS NOT PRECLUDED BY THE
LAST SENTENCE OF 405 (H) FROM CONSIDERATION UNDER 28 U.S.C. 1331. 

        C 

NOT ONLY DOES THIS CASE NOT CONCERN A "CLAIM ARISING UNDER" TITLE
II, BUT IT IS, AT LEAST IN PART, NOT AN "ACTION . . . TO RECOVER ON ANY
CLAIM."  (EMPHASIS ADDED.)  A THREE-JUDGE DISTRICT COURT DEALT WITH THE
"RECOVER ON (A) CLAIM" ASPECT OF 405 (H) IN GAINVILLE V. RICHARDSON,
319 F. SUPP. 16, 18 (MASS. 1970).  /12/ JUDGE WYZANSKI WROTE CONCERNING
THE EFFECT OF THE LAST SENTENCE OF 405 (H): 

"IN THE PRESENT ACTION, WHILE PLAINTIFF DOES, PERHAPS

  IMPROPERLY, SEEK DAMAGES, HIS COMPLAINT ALSO HAS PRAYERS FOR A

  DECLARATORY JUDGMENT THAT 203 (F)(3) OF THE SOCIAL SECURITY ACT,

  42 U.S.C. 403 (F)(3) IS UNCONSTITUTIONAL, AND FOR AN INJUNCTION

  RESTRAINING DEFENDANT FROM APPLYING THAT SECTION. 

IF HE WRRE TO BE SUCCESSFUL WITH RESPECT TO THOSE PRAYERS,

  PLAINTIFF WOULD NOT, IN THE LANGUAGE OF THE STATUTE, 'RECOVER ON
ANY CLAIM' FOR BENEFITS.  FOR

  RECOVERY OF BENEFITS HE WOULD STILL NEED TO RESORT TO THE
ADMINISTRATIVE PROCESS.  THE ONLY

  EFFECT OF A DECLARATORY JUDGMENT OR INJUNCTION BY THIS COURT
WOULD BE TO PRECLUDE THE

  SECRETARY FROM MAKING THE CHALLENGED DEDUCTION."  319 F. SUPP.,
AT 18. 

THIS HOLDING SEEMS EMINENTLY SENSIBLE TO ME.  THE LEGISLATIVE
HISTORY AND ADMINISTRATIVE INTERPRETATION OF 405 (H), SUPRA, AT 790 -
792 AND N. 8, REVEAL NO BASIS FOR SUPPOSING THAT THE SECTION WAS TO
APPLY TO SUITS WHICH DID NOT REQUEST IMMEDIATE PAYMENT OF A CLAIM AS
PART OF THE RELIEF.  TO CONSTRUE THE STATUTE TO COVER ALL ACTIONS WHICH
MAY LATER, AFTER ADMINISTRATIVE CONSIDERATION, RESULT IN ELIGIBILITY
UNDER TITLE II IS TO MUTILATE THE STATUTORY LANGUAGE. 

THE HOLDING IN GAINVILLE, SUPRA, APPLIES SQUARELY TO THIS CASE.  THE
COMPLAINT SOUGHT DECLARATORY AND INJUNCTIVE RELIEF WITH RESPECT TO BOTH
THE NAMED PLAINTIFFS AND THE CLASS, AS WELL AS RETROACTIVE BENEFITS. 
APP. 12 - 13.  THE INJUNCTION SOUGHT WAS EITHER AN ORDER TO PROVIDE
BENEFITS OR "AN OPPORTUNITY FOR A HEARING ON THE GENUINENESS OF THEIR
STATUS, (FOR) PLAINTIFFS AND ALL THOSE SIMILARLY SITUATED."  ID., AT
13.  THUS, EVEN IF 405 (H) PRECLUDES GRANTING RETROACTIVE BENEFITS
EXCEPT UNDER 405 (G), IT WOULD NOT, UNDER THE RATIONALE OF GAINVILLE,
SUPRA, PRECLUDE GRANTING ANY DECLARATORY AND INJUNCTIVE RELIEF TO THE
CLASS, SINCE THE RELIEF REQUESTED WOULD NOT NECESSARILY BE TANTAMOUNT
TO RECOVERY ON A CLAIM.  INDEED, THE APPELLANTS SEEM TO HAVE CONCEDED
AS MUCH IN THIS CASE, SINCE IT ARGUED HERE THAT 405 (G) AND (H) WERE
PRECLUSIVE ONLY WITH REGARD TO RETROACTIVE BENEFITS, SEE N. 1, SUPRA. 
THE COURT CONCLUDES THAT THERE WAS JURISDICTION OVER THE CLAIM FOR
RETROACTIVE BENEFITS FOR THE NAMED PLAINTIFFS UNDER 405 (G).  (BUT SEE
PART D, INFRA.)  UNDER THE GAINVILLE RATIONALE, THERE WOULD BE
JURISDICTION UNDER 1331 OVER THE CLAIMS FOR CLASS DECLARATORY AND
INJUNCTIVE RELIEF.  AND IF THERE WAS JURISDICTION UNDER ONE
JURISDICTIONAL STATUTE OR ANOTHER FOR EACH PART OF THE ACTION, SURELY
THERE WAS JURISDICTION OVER THE WHOLE.  /13/

        D 

FINALLY, EVEN IF I COULD AGREE, AND I DO NOT, THAT 405 (G) IS THE
EXCLUSIVE ROUTE FOR CONSIDERATION OF THIS KIND OF CASE, I WOULD DISSENT
FROM THE COURT'S TREATMENT OF THE EXHAUSTION REQUIREMENT OF 405 (G),
ANTE, AT 764 - 767.  THE COURT ADMITS, ANTE, AT 765, THAT THE PURPOSES
OF ADMINISTRATIVE EXHAUSTION "HAVE BEEN SERVED ONCE THE SECRETARY HAS
SATISFIED HIMSELF THAT THE ONLY ISSUE IS THE CONSTITUTIONALITY OF A
STATUTORY REQUIREMENT, A MATTER WHICH IS BEYOND HIS JURISDICTION TO
DETERMINE, AND THAT THE CLAIM IS NEITHER OTHERWISE INVALID NOR
COGNIZABLE UNDER A DIFFERENT SECTION OF THE ACT."  NONETHELESS, THE
COURT CONSTRUES THE STATUTE SO AS TO PERMIT "THE SECRETARY (TO) SPECIFY
SUCH REQUIREMENTS FOR EXHAUSTION AS HE DEEMS SERVE HIS OWN INTERESTS IN
EFFECTIVE AND EFFICIENT ADMINISTRATION.  . . . (A) COURT MAY NOT
SUBSTITUTE ITS CONCLUSION AS TO FUTILITY FOR THE CONTRARY CONCLUSION OF
THE SECRETARY."  ANTE, AT 766.  (EMPHASIS SUPPLIED). 

IF, AS THE COURT HOLDS, THE FINALITY AND HEARING REQUIREMENTS OF 405
(G) ARE NOT JURISDICTIONAL, /14/ IBID., THEN I FAIL TO SEE WHY IT IS
LEFT TO THE SECRETARY TO DETERMINE WHEN THE POINT OF FUTILITY IS IS
REACHED, A POWER TO BE EXERCISED, APPARENTLY, WITH REGARD ONLY TO THE
SECRETARY'S NEEDS AND WITHOUT TAKING ACCOUNT OF THE CLAIMANTS' INTEREST
IN NOT EXHAUSTING FUTILE REMEDIES, /15/ AND IN OBTAINING PROMPTLY
BENEFITS WHICH HAVE BEEN UNCONSITITUTIONALLY DENIED.  FURTHER, THE
COURT LEAVES THE WAY OPEN FOR A LAWLESS APPLICATION OF THIS POWER,
SINCE THE SECRETARY CAN EVIDENTLY, ONCE THE CASE IS IN COURT, ASSERT OR
NOT ASSERT THE FULL EXHAUSTION REQUIREMENTS OF 405 (G), AS HE PLEASES. 

MOREOVER, AND SIGNIFICANTLY, IT FLAGRANTLY DISTORTS THE RECORD IN
THIS CASE TO SAY THAT THE SECRETARY WAIVED THE EXHAUSTION REQUIREMENTS
OF 405 (G), RECOGNIZING THEIR FUTILITY.  TRUE, THE SECRETARY DOES NOT
HERE CLAIM A LACK OF JURISDICTION FOR FAILURE TO EXHAUST ON THE
INDIVIDUAL CLAIM, SEE N. 1, SUPRA.  BUT HE DID, IN THE DISTRICT COURT,
MOVE TO DISMISS THE ENTIRE ACTION FOR LACK OF SUBJECT-MATTER
JURISDICTION.  SEE NOTICE AND MOTION TO DISMISS OR FOR SUMMARY
JUDGMENT, AT R. 114 - 117.  THE SECRETARY SAID, REFERRING TO 405 (G)
AND (H): 

     "FROM THE ABOVE PROVISIONS, IT IS CLEAR THAT THE ONLY CIVIL

  ACTION PERMITTED TO AN INDIVIDUAL ON ANY CLAIM ARISING UNDER

  TITLE II OF THE ACT IS AN ACTION TO REVIEW THE 'FINAL DECISION OF

  THE SECRETARY MADE AFTER A HEARING . . .'  THE COMPLAINT,
HOWEVER,

  DOES NOT ALLEGE JURISDICTION UNDER SECTION (405 (G)) . . . .

  MOREOVER, THERE HAS BEEN NO 'FINAL DECISION' BY THE SECRETARY ON

  THE MATTERS HEREIN COMPLAINED OF . . . AND PLAINTIFFS HAVE NOT

  EXHAUSTED THEIR ADMINISTRATIVE REMEDIES, THE EXHAUSTION OF ANY

  AVAILABLE ADMINISTRATIVE REMEDIES IS A CONDITION PRECEDENT TO THE

  PLAINTIFFS (SIC) BRINGING THIS ACTION AGAINST THE DEFENDANTS, AND

  THE ISSUE IS ONE OF SUBJECT MATTER JURISDICTION."  DEFENDANTS'

  MEMORANDUM IN OPPOSITION TO THE PLAINTIFFS' MOTION FOR

  PRELIMINARY INJUNCTION, AT R. 65.  (FIRST EMPHASIS ADDED.) 

IN THE FACE OF THIS STATEMENT, THE COURT'S CONCLUSION THAT THE
SECRETARY DETERMINED "THAT FOR THE PURPOSES OF THIS LITIGATION THE
RECONSIDERATION DETERMINATION IS 'FINAL,'" ANTE, AT 767, IS PATENTLY
INDEFENSIBLE. 

        II 

THE MERITS OF THIS CASE CAN BE DEALT WITH VERY BRIEFLY.  FOR IT IS,
I BELIEVE, APPARENT ON THE FACE OF THE COURT'S OPINION THAT TODAY'S
HOLDING IS FLATLY CONTRARY TO SEVERAL RECENT DECISIONS, SPECIFICALLY
VLANDIS V. KLINE, 412 U. S. 441 (1973); U. S. DEPT. OF AGRICULTURE V.
MURRY, 413 U. S. 508 (1973); AND JIMENEZ V. WEINBERGER, 417 U. S. 628
(1974). 

IN VLANDIS, WE SAID, 412 U. S., AT 446:  "(PERMANENT IRREBUTTABLE
PRESUMPTIONS HAVE LONG BEEN DISFAVORED UNDER THE DUE PROCESS CLAUSE OF
THE . . . FOURTEENTH AMENDMENT."  THE COURT TODAY DISTINGUISHES STANLEY
V. ILLINOIS, 405 U. S. 645 (1972), AND CLEVELAND BOARD OF EDUCATION V.
LAFLEUR, 414 U. S. 632 (1974), TWO CASES WHICH STRUCK DOWN CONCLUSIVE
PRESUMPTIONS, BECAUSE BOTH DEALT WITH PROTECTED RIGHTS, WHILE THIS CASE
DEALS WITH "A NONCONTRACTUAL CLAIM TO RECEIVE FUNDS FROM THE PUBLIC
TREASURY (WHICH) ENJOYS NO CONSTITUTIONALLY PROTECTED STATUS."  ANTE,
AT 772.  BUT VLANDIS ALSO DEALT WITH A GOVERNMENT BENEFIT PROGRAM--THE
PROVISION OF AN EDUCATION AT PUBLIC EXPENSE.  SINCE THE COURT CANNOT
DISPOSE OF VLANDIS AS IT DOES STANLEY AND LAFLEUR, IT ATTEMPTS TO WISH
AWAY VLANDIS BY NOTING THAT "WHERE CONNECTICUT PURPORTED TO BE
CONCERNED WITH RESIDENCY, IT MIGHT NOT AT THE SAME TIME DENY TO ONE
SEEKING TO MEET ITS TEST OF RESIDENCY THE OPPORTUNITY TO SHOW FACTORS
CLEARLY BEARING ON THAT ISSUE." 

YET, THE CONNECTICUT STATUTE IN VLANDIS DID NOT SET "RESIDENCY,"
UNDEFINED, AS THE CRITERIA OF ELIGIBILITY; IT DEFINED RESIDENCY IN
CERTAIN WAYS.  THE DEFINITIONS OF "RESIDENT" WERE PRECISELY PARALLEL TO
THE STATUTE HERE, WHICH DEFINES "WIDOW" AND "CHILD" IN PART BY THE
NUMBER OF MONTHS OF MARRIAGE, 42 U.S.C. 416 (C) AND (E) (1970 ED. AND
SUPP. III). 

SIMILARLY, MURRY, SUPRA, AND JIMENEZ, SUPRA, BOTH DEALT WITH
CONCLUSIVE PRESUMPTIONS CONTAINED IN STATUTES SETTING OUT CRITERIA FOR
ELIGIBILITY FOR GOVERNMENT BENEFITS.  THE COURT DISTINGUISHES THEM AS
CASES IN WHICH THE "CRITERIA . . . BEAR NO RATIONAL RELATION TO A
LEGITIMATE LEGISLATIVE GOAL."  BUT IF THE PRESUMPTIONS IN MURRY AND
JIMENEZ WERE IRRATIONAL, THE PRESUMPTION IN THIS CASE IS EVEN MORE
IRRATIONAL.  WE HAVE BEEN PRESENTED WITH NO EVIDENCE AT ALL THAT THE
PROBLEM OF COLLUSIVE MARRIAGES IS ONE WHICH EXISTS AT ALL.  INDEED, THE
VERY FACT THAT CONGRESS HAS CONTINUALLY MOVED BACK THE AMOUNT OF TIME
REQUIRED TO AVOID THE IRREBUTTABLE PRESUMPTION, ANTE, AT 778 - 780,
SUGGESTS THAT IT FOUND, FOR EACH TIME PERIOD SET, THAT IT WAS DEPRIVING
DESERVING PEOPLE OF BENEFITS WITHOUT ALLEVIATING ANY REAL PROBLEM OF
COLLUSION.  THERE IS NO REASON TO BELIEVE THAT THE NINE-MONTH PERIOD IS
ANY MORE LIKELY TO DISCARD A HIGH PROPORTION OF COLLUSIVE MARRIAGES
THAN THE FIVE-YEAR, THREE-YEAR, OR ONE-YEAR PERIODS EMPLOYED EARLIER. 

THE COURT SAYS:  "THE ADMINISTRATIVE DIFFICULTIES OF INDIVIDUAL
ELIGIBILITY DETERMINATIONS ARE WITHOUT DOUBT MATTERS WHICH CONGRESS MAY
CONSIDER WHEN DETERMINING WHETHER TO RELY ON RULES WHICH SWEEP MORE
BROADLY THAN THE EVILS WITH WHICH THEY SEEK TO DEAL."  ANTE, AT 784. 
BUT, AS WE SAID IN STANLEY V. ILLINOIS, SUPRA: 

"(THE CONSTITUTION RECOGNIZES HIGHER VALUES THAN SPEED AND
EFFICIENCY.  INDEED, ONE MIGHT FAIRLY SAY OF THE BILL OF RIGHTS IN
GENERAL, AND THE DUE PROCESS CLAUSE IN PARTICULAR, THAT THEY WERE
DESIGNED TO PROTECT THE FRAGILE VALUES OF A VULNERABLE CITIZENRY FROM
THE OVERBEARING CONCERN FOR EFFICIENCY AND EFFICACY THAT MAY
CHARACTERIZE PRAISEWORTHY GOVERNMENT OFFICIALS NO LESS, AND PERHAPS
MORE, THAN MEDIOCRE ONES."  405 U. S., AT 656. 

THIS IS NOT TO SAY, NOR HAS THE COURT EVER HELD, THAT ALL STATUTORY
PROVISIONS BASED ON ASSUMPTIONS ABOUT UNDERLYING FACTS ARE PER SE
UNCONSTITUTIONAL UNLESS INDIVIDUAL HEARINGS ARE PROVIDED.  BUT IN THIS
CASE, AS IN THE OTHERS IN WHICH WE HAVE STRICKEN DOWN CONCLUSIVE
PRESUMPTIONS, IT IS POSSIBLE TO SPECIFY THOSE FACTORS WHICH, IF PROVED
IN A HEARING, WOULD DISPROVE A REBUTTABLE PRESUMPTION.  SEE, E. G.,
VLANDIS, 412 U. S., AT 452.  FOR EXAMPLE, PERSUASIVE EVIDENCE OF GOOD
HEALTH AT THE TIME OF MARRIAGE WOULD BE SUFFICIENT, I SHOULD THINK, TO
DISPROVE THAT THE MARRIAGE WAS COLLUSIVE.  ALSO, IN THIS CASE, AS IN
STANLEY, 405 U. S., AT 655, AND LAFLEUR, 414 U. S., AT 643, THE
PRESUMPTION, INSOFAR AS IT PRECLUDES PEOPLE AS TO WHOM THE PRESUMED
FACT IS UNTRUE FROM SO PROVING, RUNS COUNTER TO THE GENERAL LEGISLATIVE
POLICY--HERE, PROVIDING TRUE WIDOWS AND CHILDREN WITH SURVIVORS'
BENEFITS.  AND FINALLY, THE PRESUMPTION HERE, LIKE THAT IN VLANDIS,
MURRY, AND JIMENEZ, INVOLVES A MEASURE OF SOCIAL OPPROBRIUM; THE
ASSUMPTION IS THAT THE INDIVIDUAL HAS PURPOSELY UNDERTAKEN TO EVADE
LEGITIMATE REQUIREMENTS.  WHEN THESE FACTORS ARE PRESENT, I BELIEVE
THAT THE GOVERNMENT'S INTERESTS IN EFFICIENCY MUST BE SURRENDERED TO
THE INDIVIDUAL'S INTEREST IN PROVING THAT THE FACTS PRESUMED ARE NOT
TRUE AS TO HIM. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

/1/ THE APPELLANTS IN THEIR JURISDICTIONAL STATEMENT RAISED AS ONE
OF THE QUESTIONS PRESENTED "(WHETHER SOVEREIGN IMMUNITY BARS THIS
(SUIT) INSOFAR AS IT SEEKS RETROACTIVE SOCIAL SECURITY BENEFITS." 
JURISDICTIONAL STATEMENT 2 (EMPHASIS ADDED).  THEIR ARGUMENT WAS THAT
NO RETROACTIVE BENEFITS WERE AVAILABLE TO THE CLASS, BECAUSE 28 U.S.C.
1331 DOES NOT WAIVE SOVEREIGN IMMUNITY, BECAUSE 42 U.S.C. 405 (H) BARS
A SUIT SEEKING RETROACTIVE BENEFITS EXCEPT UNDER 405 (G), AND BECAUSE
THE EXHAUSTION REQUIREMENTS OF 405 (G) WERE NOT MET.  BRIEF FOR
APPELLANTS 16 - 18.  SEE ALSO TR. OF ORAL ARG. 7 - 8: 

"QUESTION:  . . . (IS THE UNITED STATES SATISFIED THERE WAS
JURISDICTION IN THE DISTRICT COURT HERE? 

"MRS. SHAPIRO:  WE ARE NOT SATISFIED THAT THERE WAS JURISDICTION TO
THE EXTENT THAT IT . . . IDENTIFIED A CLASS AND REQUIRED RETROACTIVE
PAYMENTS TO ALL MEMBERS OF THE CLASS."  (EMPHASIS ADDED.) 

THUS, THE APPELLANTS NEVER CLAIMED HERE THAT THE DISTRICT COURT WAS
WITHOUT JURISDICTION OVER THE MERITS OF THIS CASE, FOR THEY CONCEDED,
APPARENTLY, JURISDICTION TO GRANT DECLARATORY AND INJUNCTIVE RELIEF. 

/2/ SEE, E. G., ON THE EFFECT OF 405 (G) AND (H) ON CASES SEEKING TO
INVALIDATE AS UNCONSTITUTIONAL A PROVISION OF TITLE II OF THE SOCIAL
SECURITY ACT, BARTLEY V. FINCH, 311 F. SUPP. 876 (ED KY. 1970), AFF'D
ON THE MERITS SUB NOM. BARTLEY V. RICHARDSON, 404 U. S. 980 (1971);
GAINVILLE V. RICHARDSON, 319 F. SUPP. 16 (MASS. 1970); GRIFFIN V.
RICHARDSON, 346 F. SUPP. 1226 (MD.), AFF'D, 409 U. S. 1069 (1972); DIAZ
V. WEINBERGER, 361 F. SUPP. 1 (SD FLA. 1973); WIESENFELD V. WEINBERGER,
367 F. SUPP. 981 (NJ 1973), AFF'D, 420 U. S. 636 (1975); KOHR V.
WEINBERGER, 378 F. SUPP. 1299 (ED PA. 1974) (APPEAL DOCKETED, NO. 74 -
5538). 

BARTLEY V. FINCH, SUPRA, WAS THE ONLY ONE OF THESE CASES HOLDING
THAT 405 (G) IS THE EXCLUSIVE MEANS OF DETERMINING THE
CONSTITUTIONALITY OF A PROVISION OF THE SOCIAL SECURITY ACT, AND THAT
THERE WAS, BECAUSE OF NONCOMPLIANCE WITH 405 (G), NO JURISDICTION.  THE
DISTRICT COURT THEN WENT ON TO DECIDE THE MERITS.  THIS COURT'S
AFFIRMANCE WAS EXPLICITLY ON THE MERITS, AND THUS MUST BE TAKEN TO HAVE
HELD THAT THERE WAS JURISDICTION EVEN THOUGH 405 (G) WAS NOT COMPLIED
WITH. 

OTHER COURTS HAVE GRAPPLED WITH 405 (G) AND (H) IN OTHER CONTEXTS. 
SEE, E. G., FILICE V. CELEBREZZE, 319 F. 2D 443 (CA9 1963); COMPARE
CAPPADORA V. CELEBREZZE, 356 F. 2D 1 (CA2 1966), WITH STUCKEY V.
WEINBERGER, 488 F. 2D 904 (CA9 1973) (EN BANC).  IN CAPPADORA, SUPRA,
JUDGE FRIENDLY, IN CONSIDERING THE APPLICATION OF 405 (G) AND (H) TO
REVIEW OF A DECISION NOT TO REOPEN A CLAIM OF STATUTORY QUALIFICATION,
CAUTIONED AGAINST OVERLY LITERAL INTERPRETATION OF THE SECTIONS.  356
F. 2D, AT 4 - 5. 

/3/ IF THE COURT HAD DETERMINED TO AFFIRM ON THE MERITS, THEN THE
QUESTION ACTUALLY RAISED BY THE APPELLANTS--WHETHER THERE IS
JURISDICTION TO AWARD RETROACTIVE BENEFITS DESPITE NONCOMPLIANCE WITH
405 (G)--MAY HAVE BEEN FAIRLY BEFORE US, AND MAY HAVE ENTAILED
CANVASSING THE JURISDICTIONAL QUESTIONS THE COURT TODAY DISCUSSES.  BUT
SINCE THE COURT REVERSES ON THE MERITS, THE SOURCE OF THE DISTRICT
COURT'S JURISDICTION IS IMMATERIAL AND, PARTICULARLY, IT IS IRRELEVANT
WHETHER OR NOT THERE WAS JURISDICTION OVER THE CLASS COMPLAINT.  THE
COURT'S DECISION ON THE LATTER QUESTION, ANTE, AT 764, CAN ONLY BE
CHARACTERIZED AS DICTUM. 

/4/ IN NORTON V. WEINBERGER, APPEAL DOCKETED, NO. 74 - 6212, THE
DISTRICT COURT DID NOT DECLARE THE CONTESTED PORTION OF TITLE II OF THE
SOCIAL SECURITY ACT UNCONSTITUTIONAL, AND WE THEREFORE LACK
JURISDICTION UNDER 28 U.S.C. 1252.  THUS, IF 405 (G) IS THE EXCLUSIVE
ROUTE FOR DETERMINATION OF CONSTITUTIONAL ATTACKS ON TITLE II, AND IF,
AS THE COURT SUGGESTS, ANTE, AT 763 N. 8, THERE IS A QUESTION REGARDING
THE POWER OF A COURT TO GRANT AN INJUNCTION UNDER 405 (G), WE COULD BE
WITHOUT JURISDICTION UNDER 28 U.S.C. 1253 IN NORTON BECAUSE THE THREE
JUDGE COURT, WITHOUT POWER TO ENJOIN THE STATUTE, WAS IMPROPERLY
CONVENED UNDER 28 U.S.C. 2282.  THUS, NORTON, UNLIKE THIS CASE, WOULD
BE THE APPROPRIATE VEHICLE FOR DETERMINATION OF THE JURISDICTIONAL
QUESTION DECIDED TODAY. 

/5/ SECTIONS 405 (G) AND (H) WERE PART OF THESE AMENDMENTS.  SEE
SOCIAL SECURITY ACT AMENDMENTS OF 1939.  TIT. II, 201, 53 STAT. 1362. 
BEFORE THAT, THE SOCIAL SECURITY ACT CONTAINED NO EXPLICIT PROVISIONS
CONCERNING JUDICIAL REVIEW.  SEE H. R. REP. NO. 728, 76TH CONG., 1ST
SESS., 43 (1939). 

/6/ THE COURT ARGUES, ANTE, AT 759 N. 6, THAT IF THE THIRD SENTENCE OF
405 (H) MERELY FORBIDS A BYPASS OF 405 (G) VIA A SEPARATE ACTION NOT
FRAMED AS A REVIEW OF THE SECRETARY'S DECISION, IT IS SUPERFLUOUS
BECAUSE AN APPLICATION IS A PREREQUISITE TO ENTITLEMENT AND "(ONCE THE
APPLICATION IS FILED, IT IS EITHER APPROVED . . . OR IT IS DENIED,"
RESULTING IN A DECISION OF THE SECRETARY WHICH, UNDER THE SECOND
SENTENCE OF 405 (H), CANNOT BE REVIEWED "SAVE PURSUANT TO 405 (G)." 
THIS ANALYSIS IS FAULTY IN SEVERAL RESPECTS.  FIRST, WITHOUT THE LAST
SENTENCE OF 405 (H), AN APPLICANT MIGHT FIRST FILE AN APPLICATION AND
THEN, BEFORE IT IS ACTED UPON AT ALL, FILE A SUIT FOR BENEFITS UNDER
TITLE II.  SECOND, IT IS NOT TRUE THAT ALL ENTITLEMENT TO BENEFITS
HINGE UPON FILING AN APPLICATION.  IN SOME INSTANCES, A PERSON ALREADY
RECEIVING ONE TYPE OF BENEFITS NEED NOT FILE A NEW APPLICATION IN ORDER
TO RECEIVE ANOTHER CATEGORY OF BENEFITS.  SEE, E. G., 42 U.S.C. 402
(E)(1)(C)(II) (1970 ED., SUPP. III); 402 (F)(1) (C) (1970 ED., SUPP.
III); 402 (G)(1)(D).  FINALLY, EVEN IF AN APPLICATION HAS BEEN FILED
AND A DECISION MADE UPON IT, THE APPLICANT MIGHT TRY TO FILE A SUIT
SEEKING NOT REVIEW OF THE ADMINISTRATIVE RECORD BUT A DE NOVO
DETERMINATION OF ELIGIBILITY.  THIS WOULD RAISE THE QUESTION WHETHER
THE SECOND SENTENCE OF 405 (G) SHOULD BE READ ONLY TO PRESCRIBE THE WAY
IN WHICH THE ADMINISTRATIVE RECORD "SHALL BE REVIEWED"; THE THIRD
SENTENCE MAKES CLEAR, HOWEVER, THAT NO ACTION EXCEPT REVIEW OF THE
ADMINISTRATIVE RECORD IS AVAILABLE FOR SUITS CLAIMING ELIGIBILITY UNDER
THE STATUTE. 

/7/ SEE REPORT OF THE SOCIAL SECURITY BOARD, PROPOSED CHANGES IN THE
SOCIAL SECURITY ACT, H. R. DOC. NO. 110, 76TH CONG., 1ST SESS. (1939);
HEARINGS ON SOCIAL SECURITY BEFORE THE HOUSE COMMITTEE ON WAYS AND
MEANS, 76TH CONG., 1ST SESS., VOLS.  1, 3, PP. 45 - 69, 2163 - 2433
(1939) (TESTIMONY OF DR. ALTMEYER, CHAIRMAN OF THE SOCIAL SECURITY
BOARD). 

/8/ OTHER INDICES OF LEGISLATIVE INTENT AND ADMINISTRATIVE
INTERPRETATION, ALTHOUGH SPARSE, ALSO SUGGEST THAT 405 (G) AND (H) WERE
INTENDED AND INTERPRETED AS NOTHING MORE THAN A CODIFICATION OF
ORDINARY ADMINISTRATIVE EXHAUSTION REQUIREMENTS, APPLICABLE TO CASES
PRESENTING QUESTIONS OF FACT AND OF INTERPRETATION OF THE STATUTE.  THE
1939 REPORT OF THE SOCIAL SECURITY BOARD, SEE N. 7, SUPRA, SUGGESTED
THAT THE AMENDMENTS INCLUDE A "(PROVISION THAT FINDINGS OF FACT AND
DECISIONS OF THE BOARD IN THE ALLOWANCE OF CLAIMS SHALL BE FINAL AND
CONCLUSIVE.  SUCH A PROVISION WOULD FOLLOW THE PRECEDENT OF THE WORLD
WAR VETERANS' ACT AND OF OTHER LEGISLATION WITH RESPECT TO AGENCIES
SIMILAR TO THE BOARD WHICH HANDLE A LARGE NUMBER OF SMALL CLAIMS." 
ID., AT 13.  AT THE HEARINGS ON THE AMENDMENTS, DR. ALTMEYER EXPLAINED
THIS RECOMMENDATION AS "FOLLOWING) THE PRECEDENT LAID DOWN IN . . .
OTHER ACTS, WHERE THERE IS A VOLUME OF SMALL CLAIMS, AND WHERE A REVIEW
OF THE FINDINGS OF FACT WOULD LEAD TO . . . DUPLICATE ADMINISTRATION OF
THE LAW."  HEARINGS, N. 7, SUPRA, VOL. 3, P. 2288.  (EMPHASIS ADDED.) 
THUS, AT THEIR INCEPTION THE EXHAUSTION PROVISIONS WHICH BECAME 405 (G)
AND (H) WERE CLEARLY INTENDED TO APPLY ONLY TO RUN-OF-THE-MILL CLAIMS
UNDER THE STATUTORY PROVISIONS, IN WHICH FACTUAL DETERMINATIONS WOULD
BE PARAMOUNT. 

THE HOUSE OF REPRESENTATIVES REPORT SAYS, OF 405 (G):  "THE
PROVISIONS OF THIS SUBSECTION ARE SIMILAR TO THOSE MADE FOR THE REVIEW
OF DECISIONS OF MANY ADMINISTRATIVE BODIES."  H. R. REP. NO. 728, 76TH
CONG., 1ST SESS., 43 (1939).  THE REPORT DESCRIBES 405 (H) BASICALLY IN
ITS OWN WORDS.  ID., AT 43 - 44.  THERE IS NO INDICATION THAT THE
LATTER SECTION WAS INTENDED IN ANY WAY TO ALTER THE INTENT INDICATED BY
THE QUOTED SENTENCE--TO LEGISLATE ONLY ORDINARY ADMINISTRATIVE
EXHAUSTION REQUIREMENTS. 

FINALLY, A STATEMENT INSERTED BY MR. MITCHELL, COMMISSIONER OF
SOCIAL SECURITY, INTO THE RECORD OF THE 1959 HEARINGS ON THE
ADMINISTRATION OF THE SOCIAL SECURITY DISABILITY INSURANCE PROGRAM
BEFORE THE SUBCOMMITTEE ON THE ADMINISTRATION OF THE SOCIAL SECURITY
LAWS OF THE HOUSE COMMITTEE ON WAYS AND MEANS, 86TH CONG., 1ST SESS.,
977 (1960), AGAIN REFLECTS THE VIEW THAT 405 (G) AND (H) TOGETHER
MERELY REITERATE, EVEN IF A BIT REDUNDANTLY, THAT "THE JURISDICTION OF
A COURT TO REVIEW A DETERMINATION OF THE SECRETARY IS LIMITED TO A
REVIEW OF THE RECORD MADE BEFORE THE SECRETARY.  THIS IS MADE AMPLY
CLEAR BY THE SECOND AND THIRD SENTENCES OF (405 (G)) AND BY THE
PROVISIONS OF ( 405 (H)).  . . . THE COURT HAS NO POWER TO HOLD A
HEARING AND DETERMINE THE MERITS OF THE CLAIM BECAUSE THE STATUTE MAKES
IT CLEAR THAT THE DETERMINATION OF CLAIMS IS SOLELY A FUNCTION OF THE
SECRETARY." 

/9/ AT LEAST TWICE, CLAIMANTS WHO ATTEMPTED TO EXHAUST PURSUANT TO
405 (G) ON A CONSTITUTIONAL ATTACK ON TITLE II HAVE BEEN MET WITH AN
ADMINISTRATIVE HOLDING THAT CONSTITUTIONAL CLAIMS ARE BEYOND THE
COMPETENCE OF THE ADMINISTRATIVE AGENCY.  SEE IN THE CASE OF EPHRAM
NESTOR, REFEREE'S DECISION, JAN. 31, 1958, AT TR. 9, FLEMMING V.
NESTOR, O. T. 1959, NO. 54; IN THE CASE OF LILLIAN DANIELS,
ADMINISTRATIVE LAW JUDGE'S DECISION, NOV. 14, 1973, CITED IN APPELLEES'
MOTION TO AFFIRM AND/OR DISMISS 21 N. 34.  THIS ADMINISTRATIVE
DETERMINATION OF THE AGENCY'S JURISDICTION IS DUE GREAT DEFERENCE. 
JOHNSON V. ROBISON, 415 U. S. 361, 367 - 368 (1974). 

/10/ THE LAST SENTENCE OF 405 (H), UPON WHICH THE COURT RELIES SO
HEAVILY, REFERS EXPRESSLY TO OLD 41 OF TITLE 28, NOW 28 U.S.C. 1331 ET
SEQ. THUS, IT IS APPROPRIATE TO ASSUME THAT "ARISING UNDER" IS USED IN
405 (H) IN THE SAME SENSE AS IT IS USED IN THE GENERAL JURISDICTIONAL
STATUTES. 

/11/ JOHNSON DISCUSSES AT LENGTH THE REASONS WHY THE "CONCERNING A
CLAIM FOR BENEFITS OR PAYMENTS" LANGUAGE WAS ELIMINATED.  415 U. S., AT
371 - 373.  THESE REASONS HAD NOTHING TO DO WITH THE PROBLEM OF
CONSTITUTIONAL ATTACKS PRESENTED IN JOHNSON AND PRESENTED HERE.  THE
COURT CONCLUDED:  "NOTHING WHATEVER IN THE LEGISLATIVE HISTORY OF THE
1970 AMENDMENT, OR PREDECESSOR NO-REVIEW CLAUSES, SUGGESTS ANY
CONGRESSIONAL INTENT TO PRECLUDE JUDICIAL COGNIZANCE OF CONSTITUTIONAL
CHALLENGES TO VETERANS' BENEFITS LEGISLATION."  ID., AT 373.  (EMPHASIS
ADDED.) 

/12/ THIS COURT, 409 U. S. 1069 (1972), AFFIRMED GRIFFIN V.
RICHARDSON, 346 F. SUPP. 1226, 1230 (MD.), WHICH EXPRESSED BASICALLY
THE SAME VIEW, ALBEIT SOMEWHAT LESS CLEARLY. 

/13/ ALTHOUGH THIS CASE WAS ARGUED HERE AS IF THE DISTRICT COURT
GRANTED RETROACTIVE BENEFITS TO THE CLASS, I AM NOT SURE THIS IS SO.
THE INJUNCTION ISSUED ORDERED THE SECRETARY "TO PROVIDE BENEFITS, FROM
THE TIME OF ORIGINAL ENTITLEMENT, TO PLAINTIFFS AND THE CLASS THEY
REPRESENT, PROVIDED SAID PLAINTIFFS AND CLASS ARE OTHERWISE FULLY
ELIGIBLE TO RECEIVE SAID BENEFITS."  373 F. SUPP. 961, 966 (ND CAL.
1974).  (EMPHASIS ADDED.)  AS THE COURT POINTS OUT, ANTE, AT 759 N. 6,
IN MOST INSTANCES, SEE N. 6, SUPRA, A PERSON IS NOT "ELIGIBLE"  FOR
BENEFITS UNTIL HE FILES AN APPLICATION.  FURTHER, THE ORDER OBVIOUSLY
CONTEMPLATES ADMINISTRATIVE PROCEEDINGS IN ORDER TO DETERMINE WHETHER
"SUCH PERSONS ARE OTHERWISE FULLY ELIGIBLE."  FINALLY, IF EXHAUSTION OF
405 (G) IS INDEED, AS THE COURT HOLDS, ALWAYS A PREREQUISITE TO
ELIGIBILITY, THEN A PERSON WOULD NOT BE "OTHERWISE FULLY ELIGIBLE"
UNLESS AND UNTIL HE EXHAUSTS 405 (G).  THUS, I BELIEVE THAT THE ORDER
CAN BE READ NOT TO MANDATE RETROACTIVE BENEFITS BUT ONLY TO REQUIRE
THAT CLAIMS OF THE CLASS MEMBERS BE TREATED AS IF THE NINE-MONTH
MARRIAGE REQUIREMENT DID NOT EXIST.  SUCH AN ORDER DOES NOT CONSTITUTE
RECOVERY ON A CLAIM AND, IN MY VIEW, WAS PROPER UNDER 28 U.S.C. 1331. 

/14/ THE COURT HAS TO IGNORE PLAIN LANGUAGE OF THE STATUTE IN ORDER
TO AVOID THE ABSURD RESULT OF REQUIRING FULL EXHAUSTION ON ALL CLAIMS
SUCH AS THIS ONE, EVEN AFTER THE POINT OF FUTILITY IS REACHED.  THE
STATUTE SAYS THAT JUDICIAL REVIEW CAN BE HAD ONLY "AFTER A HEARING,"
405 (G), AND IT IS APPARENT THAT THE HEARING CONTEMPLATED IS A FULL,
EVIDENTIARY HEARING, SEE 405 (B).  RATHER THAN AVOIDING THE STATUTORY
LANGUAGE BY HOLDING THAT THE SECRETARY CAN NONETHELESS DISPENSE WITH A
HEARING, THE COURT WOULD DO BETTER TO RECOGNIZE THAT THE PATENT
INAPPLICABILITY OF THE STATUTORY LANGUAGE TO THIS KIND OF CASE SUGGESTS
THAT THE STATUTE WAS NEVER INTENDED TO APPLY AT ALL TO CONSTITUTIONAL
ATTACKS BEYOND THE SECRETARY'S COMPETENCE. 

/15/ INDEED, IN SOME CASES SIMILAR TO THIS ONE, ADMINISTRATIVE
EXHAUSTION IS FUNCTIONALLY IMPOSSIBLE.  FOR EXAMPLE, IN WEINBERGER V.
WIESENFELD, 420 U. S. 636 (1975), THE APPLICANT WAS INELIGIBLE FOR
BENEFITS BECAUSE HE WAS A MAN, A FACT OBVIOUSLY APPARENT AS SOON AS HE
APPEARED AT THE SOCIAL SECURITY OFFICE.  NOT SURPRISINGLY, HE WAS
REFUSED AN OPPORTUNITY EVEN TO FILE AN APPLICATION FOR BENEFITS.  ID.,
AT 640 N. 6.  THIS CASE IS SLIGHTLY DIFFERENT, SINCE MRS. SALFI WAS
PRECLUDED NOT BY THE OBVIOUS FACT OF HER SEX, BUT BY A FACT WHICH
PRESUMABLY DID NOT APPEAR UNTIL SHE FILLED OUT THE APPLICATION--THAT
SHE HAD NOT BEEN MARRIED LONG ENOUGH.  YET, THE COURT SUGGESTS THAT WE
HAD JURISDICTION IN WIESENFELD ONLY BECAUSE OF A STIPULATION THAT
EXHAUSTION WOULD HAVE BEEN FUTILE.  ANTE, AT 767 N. 10.  DOES THIS
INTIMATE THAT THE SECRETARY COULD HAVE REFUSED TO WAIVE EXHAUSTION AND
THEREBY HAVE ELIMINATED 405 (G) JURISDICTION, EVEN THOUGH WIESENFELD
COULD NOT POSSIBLY HAVE COMPLIED WITH THE STATUTE WITHOUT WRESTLING AN
APPLICATION FROM THE CLERK AND SOMEHOW FORCING HIM TO FILE IT? 

HARRIET S. SHAPIRO ARGUED THE CAUSE FOR APPELLANTS.  ON THE BRIEF
WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL HILLS, WILLIAM
L. PATTON, AND WILLIAM KANTER. 

DON B. KATES, JR., ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE BRUCE N. BERWALD AND JOHN GANT. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY RALPH
SANTIAGO ABASCAL, PHILIP GOAR, AND SANFORD JAY ROSEN FOR THE SAN
FRANCISCO NEIGHBORHOOD LEGAL ASSISTANCE FOUNDATION, INC., ET. AL., AND
BY CHRISTOPHER H. CLANNCY AND JONATHAN A. WEISS FOR LEGAL SERVICES OR
THE ELDERLY POOR. 
..END :




















PREISER V. NEWKIRK, 422 US 395 


       PREISER, COMMISSIONER OF CORRECTIONAL SERVICES OF NEW YORK,

           ET AL. V. NEWKIRK

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

        NO. 74 - 107.  ARGUED JANUARY 20, 1975--DECIDED JUNE 25,

           1975;

        499 F.2D 1214, VACATED AND REMANDED. 


AFTER BEING TRANSFERRED, WITHOUT EXPLANATION OR HEARING, FROM A
MEDIUM SECURITY TO A MAXIMUM SECURITY PRISON IN NEW YORK BECAUSE OF HIS
INVOLVEMENT IN A CONFLICT AMONG INMATES CONCERNING A PETITION FOR A
PRISONERS'"UNION" AT THE FORMER PRISON, RESPONDENT BROUGHT SUIT UNDER
28 U.S.C. SEC. 1343 (3) AND (4) AND 42 U.S.C. SEC. 1983 AGAINST
PETITIONER PRISON OFFICIALS, SEEKING DECLARATORY AND INJUNCTIVE
RELIEF.  THE DISTRICT COURT, GRANTING RELIEF IN PART, RULED THAT THE
TRANSFER VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
BECAUSE IT WAS MADE WITHOUT ANY EXPLANATION TO RESPONDENT OR
OPPORTUNITY TO BE HEARD.  THE COURT OF APPEALS AFFIRMED WITH SOME
MODIFICATION, HOLDING, INTER ALIA, THAT THE SUIT WAS NOT MOOTED BY THE
FACT THAT RESPONDENT WAS RETURNED TO THE MEDUIM SECRITY PRISON PRIOR TO
THE DISTRICT COURT'S RULING.  RESPONDENT WAS LATER TRANSFERRED TO A
MININUM SECURITY PRISON AND WILL SOON BE ELIGIBLE FOR PAROLE.  HELD:
IN LIGHT OF RESPONDENT'S RETURN TO THE MEDIUM SECURITY PRISON AND LATER
TRANSFER TO A MINIMUM SECURITY PRISON, THE SUIT DOES NOT PRESENT A CASE
OR CONTROVERSY AS REQUIRED BY ART. III OF THE CONSTITUTION BUT IS NOW
MOOT AND MUST BE DISMISSED, SINCE AS TO THE ORIGINAL COMPLAINT THERE IS
NOW NO REASONABLE EXPECTATION THAT THE WRONG WILL BE REPEATED AND THE
QUESTION PRESENTED DOES NOT FALL WITHIN THE CATEGORY OF HARM CAPABLE OF
REPETITION, YET EVADING REVIEW.  PP. 401 - 403. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, WHITE, MARSHALL, BLACKMUM, POWELL, AND REHNQUIST, JJ.,
JOINED.  MARSHALL, J., FILED A CONCURRING STATEMENT, POST, P. 404. 
DOUGLAS, J., FILED A DISSENTING STATEMENT, POST, P. 404. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

RESPONDENT NEWKIRK HAS BEEN AN INMATE OF THE NEW YORK PRISON SYSTEM
SINCE HIS CONVICTION FOR MURDER IN THE SECOND DEGREE IN 1962.  HE HAD
INITIALLY BEEN CONFINED AT THE OSSINING CORRECTIONAL FACILITY AND,
SUBSEQUENTLY, AT THE ATTICA CORRECTIONAL FACILITY, THE GREEN HAVEN
CORRECTIONAL FACILITY, AND THE AUBURN CORRECTIONAL FACILITY.  THESE
FACILITIES WERE MAXIMUM SECURITY INSTITUTIONS /1/ AT THE TIME
RESPONDENT WAS CONFINED IN THEM AND ARE LOCATED IN DIFFERENT PARTS OF
NEW YORK.  IN APRIL 1971, NINE YEARS AFTER HIS INITIAL CONFINEMENT, HE
WAS TRANSFERRED TO THE WALLKILL CORRECTIONAL FACILITY, A MEDIUM
SECURITY INSTITUTION.  THE DISTRICT COURT AND THE COURT OF APPEALS
FOUND, AND IT IS NOT SERIOUSLY DISPUTED HERE, THAT THE WALLKILL
FACILITY IS "UNIQUE," AND HAS ADVANTAGES OVER OTHER CORRECTIONAL
INSTITUTIONS IN THE NEW YORK SYSTEM IN THAT THERE ARE FEWER
RESTRICTIONS AND PHYSICAL RESTRAINTS AS WELL AS A MORE COMPREHENSIVE
REHABILITATION PROGRAM. 

EARLY IN 1972, A PETITION AIMED AT THE FORMATION OF A PRISONERS'
"UNION" WAS CIRCULATED AT WALLKILL.  THIS EVENT PRODUCED SOME
VOCIFEROUS CONTROVERSY AMONG THE PRISONERS.  TENSION AMONG THE INMATES,
ACCORDING TO THE DISTRICT COURT, STEMMED IN PART FROM THE HOSTILITY OF
AN EXISTING PRISONER REPRESENTATIVE COMMITTEE TOWARD THE "UNION"
MOVEMENT.  THE PRISON ADMINISTRATION, HOWEVER, DID NOT FORBID OR
ACTIVELY DISCOURAGE THE CIRCULATION OF THE PETITION.  THE
ADMINISTRATORS DID HOWEVER, MONITOR THE LEVEL OF UNREST WITHIN THE
PRIOSN BROUGHT ON BY THE CLASH OF OPINIONS ON THE PETITION.  ON JUNE 2,
1972, THERE WAS A GENERAL MEETING OF THE INMATES AT WHICH THE PETITION
WAS DISCUSSED LOUDLY BY THE CONTENDING FACTIONS; THE MEETING DISPERSED
PEACEFULLY, HOWEVER, WITHOUT INCIDENTS OF VIOLENCE.  RESPONDENT DID NOT
ATTEND THIS MEETING, BUT HE HAD PREVIOUSLY SIGNED A PROPOSED "UNION"
CONSTITUTION AND, IMMEDIATELY PRIOR TO THE MEETING, HAD RECEIVED A
PETITION FROM A FELLOW INMATE, SIGNED IT, AND PASSED IT ALONG. 

A REPORT PREPARED BY THE ASSISTANT DEPUTY SUPERINTENDENT IDENTIFIED
NEWKIRK AS ONE OF THE INMATES WHO HAD BEEN CANVASSING FOR THE "UNION"
BUT DID NOT CHARGE HIM WITH ANY VIOLATION OF REGULATIONS OR
MISCONDUCT.  THIS REPORT--INCLUDING ITS NAMING OF NEWKIRK--WAS
APPARENTLY BASED ON INFORMATION OTHER OFFICERS HAD GIVEN THE ASSISTANT
DEPUTY SUPERINTENDENT.  NEWKIRK WAS NOT AFFORDED AN OPPORTUNITY TO GIVE
HIS ACCOUNT.  THE FOLLOWING DAY, ON JUNE 6, 1972, THE SUPERINTENDENT
CALLED THE CENTRAL OFFICE OF THE DEPARTMENT OF CORRECTIONS AND ARRANGED
FOR TRANSFER OF SEVERAL INMATES, INCLUDING NEWKIRK, TO OTHER FACILITIES
WITHIN THE STATE CORRECTIONS SYSTEM.  THE TRANSFER OF NEWKIRK WAS
EFFECTED ON JUNE 8.  HE WAS SUMMONED TO THE INFIRMARY AND INFORMED THAT
HE WAS BEING TRANSFERRED. 

NEWKIRK WAS TRANSFERRED TO THE CLINTON CORRECTIONAL FACILITY, A
MAXIMUM SECURITY INSTITUTION.  THE CONDITIONS FOR THE GENERAL PRISON
POPULATION AT CLINTON WERE SUBSTANTIALLY DIFFERENT FROM THOSE AT
WALLKILL.  AT CLINTON, THE CELLS ARE LOCKED, ACCESS TO THE LIBRARY AND
RECREATIONAL FACILITIES IS MORE LIMITED, AND THE REHABILITATION
PROGRAMS ARE LESS EXTENSIVE.  NEWKIRK REQUESTED A TRUCKDRIVING
ASSIGNMENT WHEN HE ARRIVED AT CLINTON AND UNDERSTOOD HE WAS ON A
WAITING LIST.  HE WAS THEN ASSIGNED TO THE RESIDENCE OF THE
SUPERINTENDENT OF CLINTON AT THE SAME WAGE HE EARNED AT WALLKILL. 
SINCE NEWKIRK'S FAMILY LIVED IN NEW YORK CITY, 80 MILES FROM WALLKILL
BUT 300 MILES FROM CLINTON, HIS TRANSFER TO CLINTON MADE VISITS BY HIS
FAMILY MORE DIFFICULT. 

NEWKIRK AND THREE OF THE OTHER FOUR PRISONERS TRANSFERRED FROM
WALLKILL BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, PURSUANT TO 28 U.S.C. SEC. 1343 (3) AND
(4), AND 42 U.S.C. SEC. 1983, AGAINST THE SUPERINTENDENT OF WALLKILL
AND THE STATE COMMISSIONER OF CORRECTIONAL SERVICES.  THEY REQUESTED A
DECLARATORY JUDGMENT THAT THE TRANSFERS WERE IN VIOLATION OF THE
CONSTITUTION AND LAWS OF THE UNITED STATES AND AN INJUNCTION ORDERING
THEIR RETURN TO WALLKILL, EXPUNGING ALL RECORD OF THEIR TRANSFER, AND
PROHIBITING FUTURE TRANSFERS WITHOUT A HEARING.  THE DISTRICT COURT
DENIED A PRELIMINARY INJUNCTION BUT SET THE CASE FOR TRIAL ON AN
ACCELERATED BASIS.  PRIOR TO THE COMMENCEMENT OF THE TRIAL, TWO OF THE
PLAINTIFFS WERE RELEASED AND THE COMPLAINT WAS DISMISSED INSOFAR AS IT
RELATED TO THEM.  DURING THE TRIAL ANOTHER PLAINTIFF WAS RELEASED, AND
THE ACTION WAS DISMISSED AS TO HIM AS WELL; SUBSEQUENTLY NEWKIRK WAS
RETURNED TO WALLKILL.  THE SUPERINTENDENT OF THAT INSTITUTION ALSO HAD
A MEMORANDUM PLACED IN RESPONDENT'S FILE WHICH EXPLAINED THE NATURE OF
THE TRANSFER, NOTED THAT THE TRANSFER WAS NOT FOR DISCIPLINARY REASONS,
AND WAS NOT TO HAVE ANY BEARING ON ELIGIBILITY FOR PAROLE OR THE
DECISIONS OF THE TIME ALLOWANCE COMMITTEE. 

THE DISTRICT COURT HELD THAT THE TRANSFER VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT SINCE IT HAD BEEN MADE WITHOUT ANY
EXPLANATION TO NEWKIRK OR OPPORTUNITY TO BE HEARD.  THE COURT ENTERED A
DECLARATORY JUDGMENT WHICH REQUIRED THAT NEWKIRK BE GIVEN SUCH AN
EXPLANATION AND AN OPPORTUNITY TO BE HEARD IN CONNECTION WITH ANY
FUTURE TRANSFER, AND FURTHER DECLARED THAT NO ADVERSE PAROLE ACTION
COULD BE TAKEN AGAINST NEWKIRK OR PUNISHMENT ADMINISTERED BECAUSE OF
THE TRANSFER.  IT HELD THAT NEWKIRK SHOULD BE INFORMED OF THE SCOPE OF
PERMISSIBLE BEHAVIOR AT WALLKILL AND THE CIRCUMSTANCES WHICH WOULD
WARRANT HIS TRANSFER TO ANOTHER PRISON IN THE FUTURE.  AT THE SAME
TIME, HOWEVER, THE COURT REFUSED THE PRAYER FOR AN INJUNCTION AGAINST
FUTURE SUMMARY TRANSFERS BECAUSE IT WAS "NOT PERSUADED THAT THE THREAT
OF TRANSFER IS SUFFICIENTLY GREAT AT THIS TIME . . . ."  NEWKIRK V.
BUTLER, 364 F.SUPP.  497, 504 (1973), AND THAT "IN THE PRESENT POSTURE
OF THE CASE THERE IS NOT A SUFFICIENTLY DELINEATED CONTROVERSY TO MERIT
ITS ADJUDICATION," ID., AT 500.  NOTING THAT "AN EXPLANATORY NOTE HAS
BEEN INCLUDED WITH THE RECORD OF TRANSFER, AND THAT NO ACTION ADVERSE
TO PLAINTIFF, WHETHER WITH REFERENCE TO PAROLE OR DISCIPLINE, WILL BE
BASED ON THIS INFORMATION . . .," ID., AT 504, THE COURT ALSO DENIED A
REQUEST THAT ALL RECORD OF THE TRANSFER BE EXPUNGED FROM HIS FILE. 

THE COURT OF APPEALS AFFIRMED THE JUDGMENT WITH SOME MODIFICATION. 
499 F.2D 1214 (CA2 1974).  IT HELD THAT, WHEN A PRISONER SUFFERS A
"SUBSTANTIAL LOSS" AS A RESULT OF THE TRANSFER, "HE IS ENTITLED TO THE
BASIC ELEMENTS OF RUDIMENTARY DUE PROCESS, I.E., NOTICE AND AN
OPPORTUNITY TO BE HEARD," ID., AT 1217, WHETHER OR NOT HIS TRANSFER IS
PART OF A FORMAL DISCIPLINARY PROCEEDING AND WHETHER OR NOT IT HAS ANY
ADVERSE PAROLE CONSEQUENCES.  NOTING THAT THERE WERE NO FORMAL
DISCIPLINARY PROCEEDINGS IN THIS CASE, THE COURT OF APPEALS RELIED ON
THE FACT THAT THE TRANSFER CHANGED NEWKIRK'S LIVING CONDITIONS, HIS JOB
ASSIGNMENT, AND TRAINING OPPORTUNITIES.  HOWEVER, ALTHOUGH AGREEING
THAT ADVANCE PUBLICATION OF "RULES," VIOLATION OF WHICH MIGHT RESULT IN
TRANSFER, "WOULD SERVE THE SALUTARY FUNCTION OF AVOIDING
MISUNDERSTANDING AND RESENTMENT . . .,"  ID., AT 1219, THE COURT OF
APPEALS CONCLUDED THAT REQUIRING PRISON OFFICIALS TO DRAW UP SUCH RULES
WOULD PLACE OFFICIALS IN "AN UNNECESSARY STRAIGHT JACKET."  IBID.  IT,
THEREFORE, MODIFIED THE JUDGMENT OF THE DISTRICT COURT TO REMOVE THIS
REQUIREMENT FROM ITS ORDER.  ALTHOUGH SPECIFICALLY NOTING THAT NEWKIRK
HAD BEEN RETURNED TO WALLKILL FROM CLINTON, THE COURT OF APPEALS HELD
THAT THE SUIT WAS NOT MOOT SINCE "(EVEN AFTER HIS RETURN HE REMAINED
SUBJECT TO A NEW TRANSFER AT ANY TIME . . . ."  IBID.  FURTHERMORE,
DESPITE THE DISTRICT COURT'S RELIANCE ON THE GOODFAITH ASSURANCES OF
PRISON OFFICIALS THAT THE TRANSFER WOULD NOT HAVE AN ADVERSE EFFECT ON
NEWKIRK'S PAROLE POSSIBILITY, THE COURT OF APPEALS CONCLUDED HE WAS
"ENTITLED TO A JUDICIAL DECREE TO THAT EFFECT."  IBID. 

WE GRANTED PETITIONERS' PETITION FOR WRIT OF CERTIORARI WHICH
PRESENTED THE FOLLOWING QUESTION:  " WHETHER A PRISON INMATE WHO IS
TRANSFERRED WITHIN A STATE FROM A MEDIUM SECURITY INSTITUTION TO A
MAXIMUM SECURITY INSTITUTION, WITHOUT THE IMPOSITION OF DISCIPLINARY
PUNISHMENT, IS ENTITLED UNDER THE DUE PROCESS CAUSE OF THE FOURTEENTH
AMENDMENT TO NOTICE OF THE REASONS FOR THE TRANSFER AND AN OPPORTUNITY
TO BE HEARD"?  /2/  IN GRANTING THE PETITION, HOWEVER, THE COURT
DIRECTED THAT THE PARTIES BRIEF AND ARGUE THE QUESTION OF MOOTNESS. 
419 U.S. 894 (1974). 

ALL OF THE DEVELOPMENTS SINCE THE ORIGINAL CHALLENGED TRANSFER MUST
BE READ IN LIGHT OF NOT ONLY NEWKIRK'S TRANSFER TO WALLKILL BUT ALSO
HIS LATER TRANSFER, AFTER THE DECISION OF THE COURT OF APPEALS, TO THE
EDGECOMBE CORRECTIONAL FACILITY, A MINIMUM SECURITY INSTITUTION IN NEW
YORK CITY.  NEWKIRK WILL BE ELIGIBLE FOR PAROLE IN JULY 1975.  /3/ 

THE EXERCISE OF JUDICIAL POWER UNDER ART. III OF THE CONSTITUTION
DEPENDS ON THE EXISTENCE OF A CASE OR CONTROVERSY.  AS THE COURT NOTED
IN NORTH CAROLINA V. RICE, 404 U.S. 244, 246 (1971), A FEDERAL COURT
HAS NEITHER THE POWER TO RENDER ADVISORY OPINIONS NOR "TO DECIDE
QUESTIONS THAT CANNOT AFFECT THE RIGHTS OF LITIGANTS IN THE CASE BEFORE
THEM."  ITS JUDGMENTS MUST RESOLVE "'A REAL AND SUBSTANTIAL CONTROVERSY
ADMITTING OF SPECIFIC RELIEF THROUGH A DECREE OF A CONCLUSIVE
CHARACTER, AS DISTINGUISHED FROM AN OPINION ADVISING WHAT THE LAW WOULD
BE UPON A HYPOTHETICAL STATE OF FACTS.'"  IBID., QUOTING AETNA LIFE
INS. CO. V. HAWORTH, 300 U.S. 227, 241 (1937).  AS THE COURT NOTED LAST
TERM, IN AN OPINION BY MR. JUSTICE BRENNAN, STEFFEL V. THOMPSON, 415
U.S. 452, 459 N. 10 (1974):  " THE RULE IN FEDERAL CASES IS THAT AN
ACTUAL CONTROVERSY MUST BE EXTANT AT ALL STAGES OF REVIEW, NOT MERELY
AT THE TIME THE COMPLAINT IS FILED.  SEE, E.G., ROE V. WADE, 410 U.S.
(113,) 125 ((1973)); SEC V. MEDICAL COMM. FOR HUMAN RIGHTS, 404 U.S.
403 (1972); UNITED STATES V. MUNSINGWEAR, INC., 340 U.S. 36 (1950)." 

IN MARYLAND CASUALTY CO. V. PACIFIC CO., 312 U.S. 270 (1941), THIS
COURT, NOTING THE DIFFICULTY IN FASHIONING A PRECISE TEST OF UNIVERSAL
APPLICATION FOR DETERMINING WHETHER A REQUEST FOR DECLARATORY RELIEF
HAD BECOME MOOT, HELD THAT, BASICALLY, "THE QUESTION IN EACH CASE IS
WHETHER THE FACTS ALLEGED, UNDER ALL THE CIRCUMSTANCES, SHOW THAT THERE
IS A SUBSTANTIAL CONTROVERSY, BETWEEN PARTIES HAVING ADVERSE LEGAL
INTERESTS, OF SUFFICIENT IMMEDIACY AND REALITY TO WARRANT THE ISSUANCE
OF A DECLARATORY JUDGMENT."  ID., AT 273 (EMPHASIS SUPPLIED).  THIS IS
NOT A CLASS ACTION AND NEWKIRK HAS NOT SOUGHT DAMAGES.  AS NOTED,
SUPRA, BEFORE THE RULING OF THE DISTRICT COURT, NEWKIRK HAD BEEN
TRANSFERRED BACK TO WALLKILL AND HAD BEEN THERE FOR 10 MONTHS.  NO
ADVERSE ACTION WAS TAKEN AGAINST HIM DURING THAT PERIOD.  A NOTATION
HAD BEEN MADE IN HIS FILE EXPRESSLY STATING THAT THE TRANSFER "SHOULD
HAVE NO BEARING IN ANY FUTURE DETERMINATIONS MADE BY THE BOARD OF
PAROLE OR THE TIME ALLOWANCE COMMITTEE."  NEWKIRK HAS NOW BEEN
TRANSFERRED, AS NOTED ABOVE, TO A MINIMUM SECURITY FACILITY IN NEW YORK
CITY.  IT IS THEREFORE CLEAR THAT CORRECTION AUTHORITIES HARBOR NO
ANIMOSITY TOWARD NEWKIRK.  WE HAVE BEFORE US MORE THAN A "(MERE
VOLUNTARY CESSATION OF ALLEGEDLY ILLEGAL CONDUCT," UNITED STATES V.
CONCENTRATED PHOSPHATE EXPORT ASSN., INC., 393 U.S. 199, 203 (1968),
WHERE WE WOULD LEAVE "(THE DEFENDANT . . . FREE TO RETURN TO HIS OLD
WAYS."  UNITED STATES V. W.T. GRANT CO., 345 U.S. 629, 632 (1953).  AS
TO NEWKIRK'S ORIGINAL COMPLAINT, THERE IS NOW "'NO REASONABLE
EXPECTATION THAT THE WRONG WILL BE REPEATED,'" ID., AT 633, QUOTING
UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 44, (CA2
1945). 

ANY SUBJECTIVE FEAR NEWKIRK MIGHT HAVE ENTERTAINED TO BEING AGAIN
TRANSFERRED, UNDER CIRCUMSTANCES SIMILAR TO THOSE ALLEGED IN THE
COMPLAINT, OR OF SUFFERING ADVERSE CONSEQUENCES AS A RESULT OF THE 1972
TRANSFER, IS INDEED REMOTE AND SPECULATIVE AND HARDLY CAST THAT
"CONTINUING AND BROODING PRESENCE" OVER HIM THAT CONCERNED THE COURT IN
SUPER TIRE ENGINEERING CO. V. MC CORKLE, 416 U.S. 115, 122 (1974).  AS
THE COURT NOTED IN UNITED STATES V. SCRAP, 412 U.S. 669, 688 - 689
(1973), "PLEADINGS MUST BE SOMETHING MORE THAN AN INGENIOUS ACADEMIC
EXERCISE IN THE CONCEIVABLE.  A PLAINTIFF MUST ALLEGE THAT HE HAD BEEN
OR WILL IN FACT BE PERCEPTIBLY HARMED BY THE CHALLENGED AGENCY ACTION,
NOT THAT HE CAN IMAGINE CIRCUMSTANCES IN WHICH HE COULD BE AFFECTED BY
THE AGENCY'S ACTION."  SIMILARLY, WHILE THERE IS ALWAYS THE POSSIBILITY
THAT NEW YORK AUTHORITIES MIGHT DISREGARD THE SPECIFIC RECORD NOTATION
THAT THE TRANSFER SHOULD HAVE NO EFFECT ON GOOD TIME OR PAROLE
DECISIONS IN REGARD TO NEWKIRK, "SUCH SPECULATIVE CONTINGENCIES AFFORD
NO BASIS FOR OUR PASSING ON THE SUBSTANTIVE ISSUES (NEWKIRK) WOULD HAVE
US DECIDE . . .," HALL V. BEALS, 396 U.S. 45, 49 (1969).  THE RECORD OF
EVENTS SINCE THE CHALLENGED TRANSFER HARDLY BEARS OUT A GENUINE CLAIM
OF AN INJURY OR POSSIBLE INJURY "OF SUFFICIENT IMMEDIACY AND REALITY TO
WARANT THE ISSUANCE OF A DECLARATORY JUDGMENT."  MARYLAND CASUALTY CO.,
312 U.S., AT 273.  NEWKIRK, AS NOTED ABOVE, WILL BE ELIGIBLE FOR PAROLE
WITHIN A MATTER OF DAYS.  SEE SUPRA, AT 401.     WE CONCLUDE THAT THE
QUESTION PRESENTED DOES NOT FALL WITHIN THAT CATEGORY OF HARM "CAPABLE
OF REPETITION, YET EVADING REVIEW," SOUTHERN PACIFIC TERMINAL CO. V.
ICC, 219 U.S. 498, 515 (1911); ROE V. WASE, 410 U.S. 113, 125 (1973). 
ACCORDINGLY, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE TO THAT COURT WITH DIRECTIONS THAT THE COMPLAINT BE DISMISSED
BY THE DISTRICT COURT.  UNITED STATES V. MUNSINGWEAR, INC., 340 U.S.
36, 39 (1950). 

                                  IT IS SO ORDERED. 

/1/ NEW YORK STATE HAS SIX CORRECTIONAL FACILITIES THAT ARE
DESIGNATED AS MAXIMUM SECURITY INSTITUTIONS: ATTICA, AUBURN, CLINTON,
GREEN HAVEN, OSSINING, AND GREAT MEADOW.  EIGHT FACILITIES, OR PORTIONS
THEREOF, ARE DESIGNATED AS MEDIUM SECURITY INSTITUTIONS:  ADIRONDACK,
BEDFORD HILLS, COXSACKIE, ELMIRA, EASTERN, FISHKILL, TAPPON, AND
WALLKILL.  SIX OTHERS ARE DESIGNATED MINIMUM SECURITY INSTITUTIONS:
ALBION, BAYVIEW, EDGECOMBE, PARKSIDE, ROCHESTER, AND TACONIC.  THERE
ARE ALSO FOUR MINIMUM SECURITY CORRECTIONAL CAMPS.  SEE 7 NYCRR, PT.
100 SEC. 100.1 - 100.94. 

/2/ PET. FOR CERT. 2.  SEE THIS COURT'S RULE 23 (1) (C). 

/3/ TR. OF ORAL ARG. 7, 22; BRIEF FOR RESPONDENT 10. 

MR. JUSTICE DOUGLAS DISSENTS FROM THE HOLDING OF MOOTNESS AND WOULD
AFFIRM THE JUDGMENT BELOW. 

MR. JUSTICE MARSHALL, CONCURRING. 

I JOIN THIS OPINION ONLY BECAUSE FOR SOME REASON RESPONDENT DID NOT
FILE THIS CASE AS A CLASS ACTION.  AS A RESULT, THE STATE OF NEW YORK
BY RELEASING THE OTHER THREE NAMED PLAINTIFFS, TRANSFERRING RESPONDENT
BACK TO WALLKILL AFTER THE DISTRICT COURT ACTION, AND FINALLY TO A
LESSER CORRECTIONAL FACILITY AFTER THE COURT OF APPEALS ACTED, THEREBY
MADE THE CASE MOOT. 

HILLEL HOFFMAN, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR PETITIONERS.  WITH HIM ON THE BRIEF WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL, AND JOEL LEWITTES, ASSISTANT ATTORNEY GENERAL. 

DANIEL POCHODA ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE WILLIAM E. HELLERSTEIN AND MARJORIE MAZEN SMITH. 

(SOLICITOR GENERAL BORK, ACTING ASSISTANT ATTORNEY GENERAL KEENEY,
DEPUTY SOLICITOR GENERAL FREY, AND JOSEPH S. DAVIES FILED A BRIEF FOR
THE UNITED STATES AS AMICUS CURIAE URGING REVERSAL 

BARBARA M. MILSTEIN, ALVIN J. BRONSTEIN, ARPIAR G. SAUNDERS, JR.,
JACK GREENBERG, STANLEY A. BASS, AND CARY COEN FILED A BRIEF FOR THE
NATIONAL PRISON PROJECT ET AL. AS AMICI CURIAE URGING AFFIRMANCE.) 
..END :












ALBEMARLE PAPER CO. V. MOODY, 422 U.S. 405 


       ALBEMARLE PAPER CO. ET. AL. V. MOODY ET AL.

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 74 - 389.  ARGUED APRIL 14, 1975 --, DECIDED JUNE 25,

           1975; 474 F.2D 134, VACATED AND REMANDED. 

(TOGETHER WITH NO. 74 - 428, HALIFAX LOCAL NO. 425, UNITED
PAPERMAKERS & PAPERWORKERS, AFL - CIO V. MOODY ET AL., ALSO AN
CERTIORARI TO THE SAME COURT.) 


RESPONDENTS, A CERTIFIED CLASS OF PRESENT AND FORMER NEGRO EMPLOYEES,
BROUGHT THIS ACTION AGAINST PETITIONERS, THEIR EMPLOYER, ALBEMARLE
PAPER CO., AND THE EMPLOYEES' UNION, SEEKING INJUNCTIVE RELIEF AGAINST
"ANY POLICY, PRACTICE, CUSTOM OR USAGE" AT THE PLANT VIOLATIVE OF TITLE
VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED BY THE EQUAL EMPLOYMENT
OPPORTUNITY ACT OF 1972, AND AFTER SEVERAL YEARS OF DISCOVERY MOVED TO
ADD A CLASS BACKPAY DEMAND.  AT THE TRIAL, THE MAJOR ISSUES WERE THE
PLANT'S SENIORITY SYSTEM, ITS PROGRAM OF EMPLOYMENT TESTING, AND
BACKPAY.  THE DISTRICT COURT FOUND THAT, FOLLOWING A REORGANIZATION
UNDER A NEW COLLECTIVE- BARGAINING AGREEMENT, THE NEGRO EMPLOYEES HAD
BEEN "'LOCKED' IN THE LOWER PAYING JOB CLASSIFICATIONS," AND ORDERED
PETITIONERS TO IMPLEMENT A SYSTEM OF PLANTWIDE SENIORITY.  THE COURT
REFUSED, HOWEVER, TO ORDER BACKPAY FOR LOSSES SUSTAINED BY THE
PLAINTIFF CLASS UNDER THE DISCRIMINATORY SYSTEM, ON THE GROUNDS THAT
(1) ALBERMARLE'S BREACH OF TITLE VII WAS FOUND NOT TO HAVE BEEN IN "BAD
FAITH," AND (2) RESPONDEENTS, WHO HAD INITIALLY DISCLAIMED INTEREST IN
BACKPAY, HAD DELAYED MAKING THEIR BACKPAY CLAIM UNTIL FIVE YEARS AFTER
THE COMPLAINT WAS FILED, THEREBY PREJUDICING PETITIONERS.  THE COURT
ALSO REFUSED TO ENJOIN OR LIMIT ALBEMARLE'S TESTING PROGRAM, WHICH
RESPONDENTS HAD CONTENDED HAD A DISPROPORTIONATE ADVERSE IMPACT ON
BLACKS AND WAS NOT SHOWN TO BE RELATED TO JOB PERFORMANCE, THE COURT
CONCLUDING THAT "PERSONNEL TESTS ADMINISTERED AT THE PLANT HAVE
UNDERGONE VALIDATION STUDIES AND HAVE BEEN PROVEN TO BE JOB RELATED." 
RESPONDENTS APPEALED ON THE BACKPAY AND PRE-EMPLOYMENT TESTS ISSUES. 
THE COURT OF APPEALS REVERSED THE DISTRICT COURT'S JUDGMENT.  HELD: 

1.  GIVEN A FINDING OF UNLAWFUL DISCRIMINATION, BACKPAY SHOULD BE
DENIED ONLY FOR REASONS THAT, IF APPLIED GENERALLY, WOULD NOT FRUSTRATE
THE CENTRAL STATUTORY PURPOSES MANIFESTED BY CONGRESS IN ENACTING TITLE
VII OF ERADICATING DISCRIMINATION THROUGHOUT THE ECONOMY AND MAKING
PERSONS WHOLE FOR INJURIES SUFFERED THROUGH PAST DISCRIMINATION. 

PP. 413 - 422. 

2.  THE ABSENCE OF BAD FAITH IS NOT A SUFFICIENT REASON FOR DENYING
BACKPAY, TITLE VII NOT BEING CONCERNED WITH THE EMPLOYER'S "GOOD INTENT
OR ABSENCE OF DISCRIMINATORY INTENT," FOR " CONGRESS DIRECTED THE
THRUST OF THE ACT TO THE CONSEQUENCES OF EMPLOYMENT PRACTICES, NOT
SIMPLY THE MOTIVATION," GRIGGS V. DUKE POWER CO., 401 U.S. 424, 432. 
PP. 422 - 423. 

3.  WHETHER RESPONDENTS' TARDINESS AND INCONSISTENCY IN MAKING THEIR
BACKPAY DEMAND WERE EXCUSABLE AND WHETHER THEY ACTUALLY PREJUDICED
PETITIONERS ARE MATTERS THAT WILL BE OPEN TO REVIEW BY THE COURT OF
APPEALS IF THE DISTRICT COURT, ON REMAND, DECIDES AGAIN TO DECLINE A
BACKPAY AWARD.  PP. 423 - 425. 

4.  AS IS CLEAR FROM GRIGGS, SUPRA, AND THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION'S GUIDELINES FOR EMPLOYERS SEEKING TO DETERMINE
THROUGH PROFESSIONAL VALIDATION STUDIES WHETHER EMPLOYMENT TESTS ARE
JOB RELATED, SUCH TESTS ARE IMPERMISSIBLE UNLESS SHOWN, BY
PROFESSIONALLY ACCEPTABLE METHODS, TO BE "PREDICTIVE OF OR
SIGNIFICANTLY CORRELATED WITH IMPORTANT ELEMENTS OF WORK BEHAVIOR WHICH
COMPRISE OR ARE RELEVANT TO THE JOB OR JOBS FOR WHICH CANDIDATES ARE
BEING EVALUATED."  MEASURED AGAINST THAT STANDARD, ALBERMARLE'S
VALIDATION STUDY IS MATERIALLY DEFECTIVE IN THAT (1) IT WOULD NOT,
BECAUSE OF THE ODD PATCHWORK OF RESULTS FROM ITS APPLICATION, HAVE
"VALIDATED" THE TWO GENERAL ABILITY TESTS USED BY ALBEMARLE FOR ALL THE
SKILLED LINES OF PROGRESSION FOR WHICH THE TWO TESTS ARE, APPARENTLY,
NOW REQUIRED; (2) IT COMPARED TEST SCORES WITH SUBJECTIVE SUPERVISORIAL
RANKINGS, AFFORDING NO MEANS OF KNOWING WHAT JOB-PERFORMANCE CRITERIA
THE SUPERVISORS WERE CONSIDERING; (3) IT FOCUSED MOSTLY ON JOB GROUPS
NEAR THE TOP OF VARIOUS LINES OF PROGRESSION, BUT THE FACT THAT THE
BEST OF THOSE EMPLOYEES WORKING NEAR THE TOP OF A LINE OF PROGRESSION
SCORE WELL ON A TEST DOES NOT NECESSARILY MEAN THAT THE TEST
PERMISSIBLY MEASURES THE QUALIFICATIONS OF NEW WORKERS, ENTERING LOWER
LEVEL JOBS; AND (4) IT DEALT ONLY WITH JOB-EXPERIENCED, WHITE WORKERS,
BUT THE TESTS THEMSELVES ARE GIVEN TO NEW JOB APPLICANTS, WHO ARE
YOUNGER, LARGELY INEXPERIENCED, AND IN MANY INSTANCES NONWHITE.  PP.
425 - 435. 

5.  IN VIEW OF THE FACTS THAT DURING THE APPELLATE STAGES OF THIS
LITIGATION ALBEMARLE HAS APPARENTLY BEEN AMENDING ITS DEPARTMENTAL
ORGANIZATION AND THE USE MADE OF ITS TESTS; THAT ISSUES OF STANDARDS OF
PROOF FOR JOB RELATEDNESS AND OF EVIDENTIARY PROCEDURES INVOLVING
VALIDATION TESTS HAVE NOT UNTIL NOW BEEN CLARIFIED; AND THAT
PROVISIONAL USE OF TESTS PENDING NEW VALIDATION EFFORTS MAY BE
AUTHORIZED, THE DISTRICT COURT ON REMAND SHOULD INITIALLY FASHION THE
NECESSARY RELIEF. 

P.436 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, WHITE, MARSHALL, AND REHNQUIST, JJ., JOINED.  MARSHALL, J.,
POST, P. 440, AND REHNQUIST, J., POST, P. 441, FILED CONCURRING
OPINIONS.  BLACKMUN, J., FILED AN OPINION CONCURRING IN THE JUDGMENT,
POST, P. 447.  BURGER, C.J., FILED AN OPINION CONCURRING IN PART AND
DISSENTING IN PART, POST, P. 449.  POWELL, J., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASES. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THESE CONSOLIDATED CASES RAISE TWO IMPORTANT QUESTIONS UNDER TITLE
VII OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 253 AS AMENDED BY THE
EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972, 85 STAT. 103, 42 U.S.C. SEC.
2000E ET SEQ. (1970 ED. AND SUPP. III):  FIRST:  WHEN EMPLOYEES OR
APPLICANTS FOR EMPLOYMENT HAVE LOST THE OPPORTUNITY TO EARN WAGES
BECAUSE AN EMPLOYER HAS ENGAGED IN AN UNLAWFUL DISCRIMINATORY
EMPLOYMENT PRACTICE, WHAT STANDARDS SHOULD A FEDERAL DISTRICT COURT
FOLLOW IN DECIDING WHETHER TO AWARD OR DENY BACKPAY?  SECOND:  WHAT
MUST AN EMPLOYER SHOW TO ESTABLISH THAT PRE-EMPLOYMENT TESTS RACIALLY
DISCRIMINATORY IN EFFECT, THOUGH NOT IN INTENT, ARE SUFFICIENTLY "JOB
RELATED" TO SURVIVE CHALLENGE UNDER TITLE VII? 

        I 

THE RESPONDENTS--PLAINTIFFS IN THE DISTRICT COURT--, ARE A CERTIFIED
CLASS OF PRESENT AND FORMER NEGRO EMPLOYEES AT A PAPER MILL IN ROANOKE
RAPIDS, N.C.; THE PETITIONER--DEFENDANTS IN THE DISTRICT COURT--, ARE
THE PLANT'S OWNER, THE ALBEMARLE PAPER CO., AND THE PLANT EMPLOYEES'
LABOR UNION, HALIFAX LOCAL NO. 425 /1/ IN AUGUST 1966, AFTER FILING A
COMPLAINT WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC), AND
RECEIVING NOTICE OF THEIR RIGHT TO SUE, /2/ THE RESPONDENTS BROUGHT A
CLASS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF NORTH CAROLINA, ASKING PERMANENT INJUNCTIVE RELIEF AGAINST
"ANY POLICY, PRACTICE, CUSTOM OR USAGE" AT THE PLANT THAT VIOLATED
TITLE VII.  THE RESPONDENTS ASSURED THE COURT THAT THE SUIT INVOLVED NO
CLAIM FOR ANY MONETARY AWARDS ON A CLASS BASIS, BUT IN JUNE 1970, AFTER
SEVERAL YEARS OF DISCOVERY, THE RESPONDENTS MOVED TO ADD A CLASS DEMAND
FOR BACKPAY.  THE COURT RULED THAT THIS ISSUE WOULD BE CONSIDERED AT
TRIAL. 

AT THE TRIAL, IN JULY AND AUGUST 1971, THE MAJOR ISSUES WERE THE
PLANT'S SENIORITY SYSTEM, ITS PROGRAM OF EMPLOYMENT TESTING, AND THE
QUESTION OF BACKPAY.  IN ITS OPINION OF NOVEMBER 9, 1971, THE COURT
FOUND THAT THE PETITIONERS HAD "STRICTLY SEGREGATED" THE PLANT'S
DEPARTMENTAL "LINES OF PROGRESSION" PRIOR TO JANUARY 1, 1964, RESERVING
THE HIGHER PAYING AND MORE SKILLED LINES FOR WHITES.  THE "RACIAL
IDENTIFIABILITY" OF WHOLE LINES OF PROGRESSION PERSISTED UNTIL 1968,
WHEN THE LINES WERE REORGANIZED UNDER A NEW COLLECTIVE-BARGAINING
AGREEMENT.  THE COURT FOUND, HOWEVER, THAT THIS REORGANIZATION LEFT
NEGRO EMPLOYEES "'LOCKED' IN THE LOWER PAYING JOB CLASSIFICATIONS." 
THE FORMERLY " NEGRO" LINES OF PROGRESSION HAD BEEN MERELY TACKED ON TO
THE BOTTOM OF THE FORMERLY "WHITE" LINES, AND PROMOTIONS, DEMOTIONS AND
LAYOFFS CONTINUED TO BE GOVERNED--BY WHERE SKILLS WERE "RELATIVELY
EQUAL"--BY A SYSTEM OF "JOB SENIORITY."  BECAUSE OF THE PLANT'S
PREVIOUS HISTORY OF OVERT SEGREGATION, ONLY WHITES HAD SENIORITY IN THE
HIGHER JOB CATEGORIES.  ACCORDINGLY, THE COURT ORDERED THE PETITIONERS
TO IMPLEMENT A SYSTEM OF "PLANTWIDE" SENIORITY. 

THE COURT REFUSED, HOWEVER, TO AWARD BACKPAY TO THE PLAINTIFF CLASS
FOR LOSSES SUFFERED UNDER THE "JOB SENIORITY" PROGRAM.  /3/ THE COURT
EXPLAINED: 

     " IN THE INSTANT CASE THERE WAS NO EVIDENCE OF BAD FAITH

  NON-COMPLIANCE WITH THE ACT.  IT APPEARS THAT THE COMPANY AS

  EARLY AS 1964 BEGAN ACTIVE RECRUITMENT OF BLACKS FOR ITS

  MAINTENANCE APPRENTICE PROGRAM.  CERTAIN LINES OF PROGRESSION

  WERE MERGED ON ITS OWN INITIATIVE, AND AS JUDICIAL DECISIONS

  EXPANDED THE THEN EXISTING INTERPRETATIONS OF THE ACT, THE

  DEFENDANTS TOOK STEPS TO CORRECT THE ABUSES WITHOUT DELAY.... 

     " IN ADDITION, AN AWARD OF BACK PAY IS AN EQUITABLE REMEDY....

  THE PLAINTIFFS' CLAIM FOR BACK PAY WAS FILED NEARLY FIVE YEARS

AFTER THE INSTITUTION OF THIS ACTION.  IT WAS NOT PRAYED FOR IN

  THE PLEADINGS.  ALTHOUGH NEITHER PARTY CAN BE CHARGED WITH

  DELIBERATE DILATORY TACTICS IN BRINGING THIS CAUSE TO TRIAL, IT

  IS APPARENT THAT THE DEFENDANTS WOULD BE SUBSTANTIALLY PREJUDICED

  BY THE GRANTING OF SUCH AFFIRMATIVE RELIEF.  THE DEFENDANTS MIGHT

  HAVE CHOSEN TO EXERCISE UNUSUAL ZEAL IN HAVING THIS COURT

  DETERMINE THEIR RIGHTS AT AN EARLIER DATE HAD THEY KNOWN THAT

  BACK PAY WOULD BE AT ISSUE." 

THE COURT ALSO REFUSED TO ENJOIN OR LIMIT ALBEMARLE'S TESTING
PROGRAM.  ALBEMARLE HAD REQUIRED APPLICANTS FOR EMPLOYMENT IN THE
SKILLED LINES OF PROGRESSION TO HAVE A HIGH SCHOOL DIPLOMA AND TO PASS
TWO TESTS, THE REVISED BETA EXAMINATION, ALLEGEDLY A MEASURE OF
NONVERBAL INTELLIGENCE, AND THE WONDERLIC PERSONNEL TEST (AVAILABLE IN
ALTERNATIVE FORMS A AND B), ALLEGEDLY A MEASURE OF VERBAL FACILITY. 
AFTER THIS COURT'S DECISION IN GRIGGS V. DUKE POWER CO, 401 U.S. 424
(1971), AND ON THE EVE OF TRIAL, ALBEMARLE ENGAGED AN INDUSTRIAL
PSYCHOLOGIST TO STUDY THE "JOB RELATEDNESS" OF ITS TESTING PROGRAM. 
HIS STUDY COMPARED THE TEST SCORES OF CURRENT EMPLOYEES WITH
SUPERVISORIAL JUDGMENTS OF THEIR COMPETENCE IN TEN JOB GROUPINGS
SELECTED FROM THE MIDDLE OR TOP OF THE PLANT'S SKILLED LINES OF
PROGRESSION.  THE STUDY SHOWED A STATISTICALLY SIGNIFICANT CORRELATION
WITH SUPERVISORIAL RATINGS IN THREE JOB GROUPINGS FOR THE BETA TEST, IN
SEVEN JOB GROUPINGS FOR EITHER FORM A OR FORM B OF THE WONDERLIC TEST,
AND IN TWO JOB GROUPINGS FOR THE REQUIRED BATTERY OF BOTH THE BETA AND
THE WONDERLIC TEST.  /4/ THE RESPONDENTS' EXPERTS CHALLENGED THE
RELIABILITY OF THESE STUDIES, BUT THE COURT CONCLUDED: 

" THE PERSONNEL TESTS ADMINISTERED AT THE PLANT HAVE UNDERGONE
VALIDATION STUDIES AND HAVE BEEN PROVEN TO BE JOB RELATED.  THE
DEFENDANTS HAVE CARRIED THE BURDEN OF PROOF IN PROVIING THAT THESE
TESTS ARE 'NECESSARY FOR THE SAFE AND EFFICIENT OPERATION OF THE
BUSINESS' AND ARE, THEREFORE, PERMITTED BY THE ACT.  HOWEVER, THE HIGH
SCHOOL EDUCATION REQUIREMENT USED IN CONJUNCTION WITH THE TESTING
REQUIREMENTS IS UNLAWFUL IN THAT THE PERSONNEL TESTS ALONE ARE ADEQUATE
TO MEASURE THE MENTAL ABILITY AND READING SKILLS REQUIRED FOR THE JOB
CLASSIFICATIONS." 

THE PETITIONERS DID NOT SEEK REVIEW OF THE COURT'S JUDGMENT, BUT THE
RESPONDENTS APPEALED THE DENIAL OF A BACKPAY AWARD AND THE REFUSAL TO
ENJOIN OR LIMIT ALBEMARLE'S USE OF PRE-EMPLOYMENT TESTS.  A DIVIDED
COURT OF APPEALS FOR THE FOURTH CIRCUIT REVERSED THE JUDGMENT OF THE
DISTRICT COURT, RULING THAT BACKPAY SHOULD HAVE BEEN AWARDED AND THAT
USE OF THE TESTS SHOULD HAVE BEEN ENJOINED, 474 F.2D 134 (1973).  AS
FOR BACKPAY, THE COURT OF APPEALS HELD THAT AN AWARD COULD PROPERLY BE
REQUESTED AFTER THE COMPLAINT WAS FILED AND THAT AN AWARD COULD NOT BE
DENIED MERELY BECAUSE THE EMPLOYER HAD NOT ACTED IN "BAD FAITH,"  ID.,
AT 142: 

     " BECAUSE OF THE COMPENSATORY NATURE OF A BACK PAY AWARD AND

  THE STRONG CONGRESSIONAL POLICY EMBODIED IN TITLE VII, A DISTRICT

  COURT MUST EXERCISE ITS DISCRETION AS TO BACK PAY IN THE SAME

  MANNER IT MUST EXERCISE DISCRETION AS TO ATTORNEY FEES UNDER

TITLE II OF THE CIVIL RIGHTS ACT.... THUS, A PLAINTIFF OR A

  COMPLAINING CLASS WHO IS SUCCESSFUL IN OBTAINING AN INJUNCTION

  UNDER TITLE VII OF THE ACT SHOULD ORDINARILY BE AWARDED BACK PAY

  UNLESS SPECIAL CIRCUMSTANCES WOULD RENDER SUCH AN AWARD UNJUST. 

  NEWMAN V. PIGGIE PARK ENTERPRISES, 390 U.S. 400... (1968)." 

  (FOOTNOTE OMITTED.) 

AS FOR THE PRE-EMPLOYMENT TEST, THE COURT OF APPEALS HELD, 474 F.2D, AT
138, THAT IT WAS ERROR 

"TO APPOVE A VALIDATION STUDY DONE WITHOUT JOB ANALYSIS, TO ALLOW
ALBEMARLE TO REQUIRE TESTS FOR 6 LINES OF PROGRESSION WHERE THERE HAS
BEEN NO VALIDATION STUDY AT ALL, AND TO ALLOW ALBEMARLE TO REQUIRE A
PERSON TO PASS TWO TESTS FOR ENTRANCE INTO 7 LINES OF PROGRESSION WHEN
ONLY ONE OF THOSE TESTS WAS VALIDATED FOR THAT LINE OF PROGRESSION." 
IN SO HOLDING THE COURT OF APPEALS "GAVE GREAT DEFERENCE" TO THE "
GUIDELINES ON EMPLOYEE SELECTION PROCEDURES," 29 CFR PART 1607, WHICH
THE EEOC HAS ISSUED "AS A WORKABLE SET OF STANDARDS FOR EMPLOYERS,
UNIONS AND EMPLOYMENT AGENCIES IN DETERMINING WHETHER THEIR SELECTION
PROCEDURES CONFORM WITH THE OBLIGATION CONTAINED IN TITLE VII...."  29
CFR SEC. 1607.1 (C). 

WE GRANTED CERTIORARI /5/ BECAUSE OF AN EVIDENT CIRCUIT CONFLICT AS
TO THE STANDARDS GOVERNING AWARDS OF BACKPAY 

/6/ AND AS TO THE SHOWING REQUIRED TO ESTABLISH THE "JOB
RELATEDNESS" OF PRE-EMPLOYMENT TESTS.  /7/

        II 

WHETHER A PARTICULAR MEMBER OF THE PLAINTIFF CLASS SHOULD HAVE BEEN
AWARDED ANY BACKPAY AND, IF SO, HOW MUCH, ARE QUESTIONS NOT INVOLVED IN
THIS REVIEW.  THE EQUITIES OF INDIVIDUAL CASES WERE NEVER REACHED. 
THOUGH AT LEAST SOME OF THE MEMBERS OF THE PLAINTIFF CLASS OBVIOUSLY
SUFFERED A LOSS OF WAGE OPPORTUNITIES ON ACCOUNT OF ALBEMARLE'S
UNLAWFULLY DISCRIMINATORY SYSTEM OF JOB SENIORITY, THE DISTRICT COURT
DECIDED THAT NO BACKPAY SHOULD BE AWARDED TO ANYONE IN THE CLASS.  THE
COURT DECLINED TO MAKE SUCH AN AWARD ON TWO STATED GROUNDS:  THE LACK
OF "EVIDENCE OF BAD FAITH NON-COMPLIANCE WITH THE ACT," AND THE FACT
THAT "THE DEFENDANTS WOULD BE SUBSTANTIALLY PREJUDICED" BY AN AWARD OF
BACKPAY THAT WAS DEMANDED CONTRARY TO AN EARLIER REPRESENTATION AND
LATE IN THE PROGRESS OF THE LITIGATION.  RELYING DIRECTLY ON NEWMAN V.
PIGGIE PARK ENTERPRISES, 390 U.S. 400 (1968), THE COURT OF APPEALS
REVERSED, HOLDING THAT BACKPAY COULD BE DENIED ONLY IN "SPECIAL
CIRCUMSTANCES."  THE PETITIONERS ARGUE THAT THE COURT OF APPEALS WAS IN
ERROR--THAT A DISTRICT COURT WAS VIRTUALLY UNFETTERED DISCRETION TO
AWARD OR DENY BACKPAY, AND THAT THERE WAS NO ABUSE OF THAT DISCRETION
HERE.  /8/ 

PIGGIE PARK ENTERPRISES, SUPRA, IS NOT DIRECTLY IN POINT.  THE COURT
HELD THERE THAT ATTORNEYS' FEES SHOULD "ORDINARILY" BE AWARDED--  I.E.,
IN ALL BUT "SPECIAL CIRCUMSTNACES"--TO PLAINTIFFS SUCCESSFUL IN
OBTAINING INJUNCTIONS AGAINST DISCRIMINATION IN PUBLIC ACCOMMODATIONS,
UNDER TITLE II OF THE CIVIL RIGHTS ACT OF 1964.  WHILE THE ACT APPEARS
TO LEAVE TITLE II FEE AWARDS TO THE DISTRICT COURT'S DISCRETION, 42
U.S.C. SEC 2000A - 3(B), THE COURT DETERMINED THAT THE GREAT PUBLIC
INTEREST IN HAVING INJUNCTIVE ACTIONS BROUGHT COULD BE VINDICATED ONLY
IF SUCCESSFUL PLAINTIFFS, ACTING AS "PRIVATE ATTORNEYS GENERAL," WERE
AWARDED ATTORNEYS' FEES IN ALL BUT VERY UNUSUAL CIRCUMSTANCES.  THERE
IS, OF COURSE, AN EQUALLY STRONG PUBLIC INTEREST IN HAVING INJUNCTIVE
ACTIONS BROUGHT UNDER TITLE VII, TO ERADICATE DISCRIMINATORY EMPLOYMENT
PRACTICES.  BUT THIS INTEREST CAN BE VINDICATED BY APPLYING THE PIGGIE
PARK STANDARD TO THE ATTORNEYS' FEES PROVISION OF TITLE VII, 42 U.S.C.
SEC. 2000E - 5 (K), SEE NORTHCROSS V. MEMPHIS BOARD OF EDUCATION, 412
U.S. 427, 428 (1973).  FOR GUIDANCE AS TO THE GRANTING AND DENIAL OF
BACKPAY, ONE MUST, THEREFORE, LOOK ELSEWHERE. 

THE PETITIONERS CONTEND THAT THE STATUTORY SCHEME PROVIDES NO
GUIDANCE, BEYOND INDICATING THAT BACKPAY AWARDS ARE WITHIN THE DISTRICT
COURT'S DISCRETION.  WE DISAGREE.  IT IS TRUE THAT BACKPAY IS NOT AN
AUTOMATIC OR MANDATORY REMEDY; LIKE ALL OTHER REMEDIES UNDER THE ACT,
IT IS ONE WHICH THE COURTS "MAY" INVOKE.  /9/ THE SCHEME IMPLICITLY
RECOGNIZES THAT THERE MAY BE CASES CALLING FOR ONE REMEDY BUT NOT
ANOTHER, AND--OWING TO THE STRUCTURE OF THE FEDERAL JUDICIARY--THESE
CHOICES ARE, OF COURSE, LEFT IN THE FIRST INSTANCE TO THE DISTRICT
COURTS.  HOWEVER, SUCH DISCRETIONARY CHOICES ARE NOT LEFT TO A COURT'S
"INCLINATION, BUT TO ITS JUDGMENT; AND ITS JUDGMENT IS TO BE GUIDED BY
SOUND LEGAL PRINCIPLES."  UNITED STATES V. BURR, 2K F. CAS. 30, 35 (CC
VA. 1807) (MARSHALL, C.J.).  THE POWER TO AWARD BACKPAY BY CONGRESS, AS
PART OF A COMPLEX LEGISLATIVE DESIGN DIRECTED AT A HISTORIC EVIL OF
NATIONAL PROPORTIONS.  A COURT MUST EXERCISE THIS POWER "IN LIGHT OF
THE LARGE OBJECTIVES OF THE ACT," HECHT CO. V. BOWLES, 321 U.S. 321,
331 (1944).  THAT THE COURT'S DISCRETION IS EQUITABLE IN NATURE, SEE
CURTIS V. LOETHER, 415 U.S. 189, 197 (1974), HARDLY MEANS THAT IT IS
UNFETTERED BY MEANINGFUL STANDARDS OR SHIELDED FROM THOROUGH APPELLATE
REVIEW.  IN MITCHELL V. DE MARIO JEWELRY, 361 U.S. 288, 292 (1960),
THIS COURT HELD, IN THE FACE OF A SILENT STATUTE, THAT DISTRICT COURTS
ENJOYED THE "HISTORIC POWER OF EQUITY" TO AWARD LOST WAGES TO WORKMEN
UNLAWFULLY DISCRIMINATED AGAINST UNDER SEC. 17 OF THE FAIR LABOR
STANDARDS ACT OF 1938, 52 STAT. 1069, AS AMENDED, 29 U.S.C. SEC. 217
(1959 ED.).  THE COURT SIMULTANEOUSLY NOTED THAT "THE STATUTORY
PURPOSES (LEAVE) LITTLE ROOM FOR THE EXERCISE OF DISCRETION NOT TO
ORDER REIMBURSEMENT."  361 U.S., AT 296. 

IT IS TRUE THAT "(EQUITY ESCHEWS MECHANICAL RULES... (AND) DEPENDS
ON FLEXIBILITY."  HOLMBERG V. ARMBRECHT, 327 U.S. 392, 396 (1946).  BUT
WHEN CONGRESS INVOKES THE CHANCELLOR'S CONSCIENCE TO FURTHER
TRANSCENDENT LEGISLATIVE PURPOSES, WHAT IS REQUIRED IS THE PRINCIPLED
APPLICATION OF STANDARDS CONSISTENT WITH THOSE PURPOSES AND NOT "EQUITY
(WHICH) VARIES LIKE THE CHANCELLOR'S FOOT."  /10/ IMPORTANT NATIONAL
GOALS WOULD BE FRUSTRATED BY A REGIME OF DISCRETION THAT "PRODUCED)
DIFFERENT RESULTS FOR BREACHES OF DUTY IN SITUATIONS THAT CANNOT BE
DIFFERENTIATED IN POLICY."  MORAGNE V. STATES MARINE LINES, 398 U.S.
375, 405 (1970). 

THE DISTRICT COURT'S DECISION MUST THEREFORE BE MEASURED AGAINST THE
PURPOSES WHICH INFORM TITLE VII.  AS THE COURT OBSERVED IN GRIGGS V.
DUKE POWER CO., 401 U.S. AT 429 - 430, THE PRIMACY OBJECTIVE WAS A
PROPHYLACTIC ONE:     " IT WAS TO ACHIEVE EQUALITY OF EMPLOYMENT
OPPORTUNITIES AND REMOVE BARRIERS THAT HAVE OPERATED IN THE PAST TO
FAVOR AN IDENTIFIABLE GROUP OF WHITE EMPLOYEES OVER OTHER EMPLOYEES." 
BACKPAY HAS AN OBVIOUS CONNECTION WITH THIS PURPOSE.  IF EMPLOYERS
FACED ONLY THE PROSPECT OF AN INJUNCTIVE ORDER, THEY WOULD HAVE LITTLE
INCENTIVE TO SHUN PRACTICES OF DUBIOUS LEGALITY.  IT IS THE REASONABLY
CERTAIN PROSPECT OF A BACKPAY AWARD THAT "PROVIDES) THE SPUR OR
CATALYST WHICH CAUSES EMPLOYERS AND UNIONS TO SELF-EXAMINE AND TO SELF
EVALUATE THEIR EMPLOYMENT PRACTICES AND TO ENDEAVOR TO ELIMIATE, SO FAR
AS POSSIBLE, THE LAST VESTIGES OF AN UNFORTUNATE AND IGNOMINIOUS PAGE
IN THIS COUNTRY'S HISTORY."  UNITED STATES V. N.L. INDUSTRIES, INC.,
479 F.2D 354, 379 (CA8 1973). 

IT IS ALSO THE PURPOSE OF TITLE VII TO MAKE PERSONS WHOLE FOR
INJURIES SUFFERED ON ACCOUNT OF UNLAWFUL EMPLOYMENT DISCRIMINATION. 
THIS IS SHOWN BY THE VERY FACT THAT CONGRESS TOOK CARE TO ARM THE
COURTS WITH FULL EQUITABLE POWERS.  FOR IT IS THE HISTORIC PURPOSE OF
EQUITY TO "SECURE) COMPLETE JUSTICE," BROWN V. SWANN, 10 PET. 497 503
(1839); SEE ALSO PORTER V. WARNER HOLDING CO., 328 U.S. 395, 397 - 398
(1946).  "(WHERE FEDERALLY PROTECTED RIGHTS HAVE BEEN INVADED, IT HAS
BEEN THE RULE FROM THE BEGINNING THAT COURTS WILL BE ALERT TO ADJUST
THEIR REMEDIES SO AS TO GRANT THE NECESSARY RELIEF."  BELL V. HOOD, 327
U.S. 678, 684 (1946).  TITLE VII DEALS WITH LEGAL INJURIES OF AN
ECONOMIC CHARACTER OCCASIONED BY RACIAL OR OTHER ANTIMINORITY
DISCRIMINATION.  THE TERMS "COMPLETE JUSTICE" AND "NECESSARY RELIEF"
HAVE ACQUIRED A CLEAR MEANING IN SUCH CIRCUMSTANCES.  WHERE RACIAL
DISCRIMINATION IS CONCERNED, "THE (DISTRICT) COURT HAS NOT MERELY THE
POWER BUT THE DUTY TO RENDER A DECREE WHICH WILL SO FAR AS POSSIBLE
ELIMINATE THE DISCRIMINATORY EFFECTS OF THE PAST AS WELL AS BAR LIKE
DISCRIMINATION IN THE FUTURE."  LOUISIANA V. UNITED STATES, 380 U.S.
145, 154 (1965).  AND WHERE A LEGAL INJURY IS OF AN ECONOMIC
CHARACTER, 

"(THE GENERAL RULE IS, THAT WHEN A WRONG HAS BEEN DONE, AND THE LAW
GIVES A REMEDY, THE COMPENSATION SHALL BE EQUAL TO THE INJURY.  THE
LATTER IS THE STANDARD BY WHICH THE FORMER IS TO BE MEASURED.  THE
INJURED PARTY IS TO BE PLACED, AS NEAR AS MAY BE, IN THE SITUATION HE
WOULD HAVE OCCUPIED IF THE WRONG HAD NOT BEEN COMMITTED."  WICKER V.
HOPPOCK, 6 WALL.  94, 99 (1867). 

THE "MAKE WHOLE" PURPOSE OF TITLE VII IS MADE EVIDENT BY THE
LEGISLATIVE HISTORY.  THE BACKPAY PROVISION WAS EXPRESSLY MODELED ON
THE BACKPAY PROVISION OF THE NATIONAL LABOR RELATIONS ACT.  /11/ UNDER
THAT ACT, "(MAKING THE WORKERS WHOLE FOR LOSSES SUFFERED ON ACCOUNT OF
AN UNFAIR LABOR PRACTICE IS PART OF THE VINDICATION OF THE PUBLIC
POLICY WHICH THE BOARD ENFORCES."  PHELPS DODGE CORP. V. NLRB, 313 U.S.
177, 197 (1941).  SEE ALSO NATHANSON V. NLRB, 344 U.S. 25, 27 (1952);
NLRB V. RUTTER-REX MFG. CO., 396 U.S. 258, 263 (1969).  WE MAY ASSUME
THAT CONGRESS WAS AWARE THAT THE BOARD, SINCE ITS INCEPTION, HAS
AWARDED BACKPAY AS A MATTER OF COURSE--NOT RANDOMLY OR IN THE EXERCISE
OF A STANDARDLESS DISCRETION, AND NOT MERELY WHERE EMPLOYER VIOLATIONS
ARE PECULIARLY DELIBERATE, EGREGIOUS, OR INEXCUSABLE.  /12/
FURTHERMORE, IN PASSING THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972,
CONGRESS CONSIDERED SEVERAL BILLS TO LIMIT THE JUDICIAL POWER TO AWARD
BACKPAY.  THESE LIMITING EFFORTS WERE REJECTED, AND THE BACKPAY
PROVISION WAS RE-ENACTED SUBSTANTIALLY IN ITS ORIGINAL FORM.  /13/ A
THE CONFERNCE COMMITTEE REPORT ON THE 1972 ACT STRONGLY REAFFIRMED THE
"MAKE WHOLE" PURPOSE OF TITLE VII: 

     " THE PROVISIONS OF THIS SUBSECTION ARE INTENDED TO GIVE THE

  COURTS WIDE DISCRETION EXERCISING THEIR EQUITABLE POWERS TO

  FASHION THE MOST COMPLETE RELIEF POSSIBLE.  IN DEALING WITH THE

  PRESENT SECTION 706 (G) THE COURTS HAVE STRESSED THAT THE SCOPE

  OF RELIEF UNDER THAT SECTION OF THE ACT IS INTENDED TO MAKE THE

  VICTIMS OF UNLAWFUL DISCRIMINATION WHOLE, AND THAT THE ATTAINMENT

  OF THIS OBJECTIVE RESTS NOT ONLY UPON THE ELIMINATION OF THE

PARTICULAR UNLAWFUL EMPLOYMENT PRACTICE COMPLAINED OF, BUT ALSO

  REQUIRES THAT PERSONS AGGRIEVED BY THE CONSEQUENCES AND EFFECTS

  OF THE UNLAWFUL EMPLOYMENT PRACTICE BE, SO FAR AS POSSIBLE,

  RESTORED TO A POSITION WHERE THEY WOULD HAVE BEEN WERE IT NOT FOR

  THE UNLAWFUL DISCRIMINATION."  118 CONG. REC. 7168 (1972). 

AS THIS MAKES CLEAR, CONGRESS' PURPOSE IN VESTING A VARIETY OF
"DISCRETIONARY" POWERS IN THE COURTS WAS NOT TO LIMIT APPELLATE REVIEW
OF TRIAL COURTS, OR TO INVITE INCONSISTENCY AND CAPRICE, BUT RATHER TO
MAKE POSSIBLE THE "FASHIONING) (OF) THE MOST COMPLETE RELIEF
POSSIBLE." 

IT FOLLOWS THAT, GIVEN A FINDING OF UNLAWFUL DISCRIMINATION, BACKPAY
SHOULD BE DENIED ONLY FOR REASONS WHICH, IF APPLIED GENERALLY, WOULD
NOT FRUSTRATE THE CENTRAL STATUTORY PURPOSES OF ERADICATING
DISCRIMINATION THROUGHOUT THE ECONOMY AND MAKING PERSONS WHOLE FOR
INJURIES SUFFERED THROUGH PAST DISCRIMINATION.  /14/ THE COURTS OF
APPEALS MUST MAINTAIN A CONSISTENT AND PRINCIPLED APPLICATION OF THE
BACKPAY PROVISION, CONSONANT WITH THE TWIN STATUTORY OBJECTIVES, WHILE
AT THE SAME TIME RECOGNIZING THAT THE TRIAL COURT WILL OFTEN HAVE THE
KEENER APPRECIATION OF THOSE FACTS AND CIRCUMSTANCES PECULIAR TO
PARTICULAR CASES. 

THE DISTRICT COURT'S STATED GROUNDS FOR DENYING BACKPAY IN THIS CASE
MSUT BE TESTED AGAINST THESE STANDARDS.  THE FIRST GROUND WAS THAT
ALBEMARLE'S BREACH OF TITLE VII HAD NOT BEEN IN "BAD FAITH."  /15/ THIS
IS NOT A SUFFICIENT REASON FOR DENYING BACKPAY.  WHERE AN EMPLOYER HAS
SHOWN BAD FAITH--BY MAINTAINING A PRACTICE WHICH HE KNEW TO BE ILLEGAL
OR OF HIGHLY QUESTIONALBE LEGALITY--HE CAN MAKE NO CLAIMS WHATSOEVER ON
THE CHANCELLOR'S CONSCIENCE.  BUT, UNDER TITLE VII, THE MERE ABSENCE OF
BAD FAITH SIMPLY OPENS THE DOOR TO EQUITY; IT DOES NOT DEPRESS THE
SCALES IN THE EMPLOYER'S FAVOR.  IF BACKPAY WERE AWARDABLE ONLY UPON A
SHOWING OF BAD FAITH, THE REMEDY WOULD BECOME A PUNISHMENT FOR MORAL
TURPITUDE, RATHER THAN A COMPENSATION FOR WORKERS' INJURIES.  THIS
WOULD READ THE "MAKE WHOLE" PURPOSE RIGHT OUT OF TITLE VII, FOR A
WORKER'S INJURY IS NO LESS REAL SIMPLY BECAUSE HIS EMPLOYER DID NOT
INFLICT IT IN "BAD FAITH."  /16/ TITLE VII IS NOT CONCERNED WITH THE
EMPLOYER'S "GOOD INTENT OR ABSENCE OF DISCRIMINATORY INTENT" FOR "
CONGRESS DIRECTED THE THRUST OF THE ACT TO THE CONSEQUENCES OF
EMPLOYMENT PRACTICES, NOT SIMPLY THE MOTIVATION."  GRIGGS V. DUKE POWER
CO., 401 U.S., AT 432.  SEE ALSO WATSON V. CITY OF MEMPHIS, 373 U.S.
526, 535 (1963); WRIGHT V. COUNCIL OF CITY OF EMPORIA, 407 U.S. 451,
461 - 462 (1972).  /17/ TO CONDITION THE AWARDING OF BACKPAY ON A
SHOWING OF "BAD FAITH" WOULD BE TO OPEN AN ENORMOUS CHASM BETWEEN
INJUNCTIVE AND BACKPAY RELIEF UNDER TITLE VII.  THERE IS NOTHING ON THE
FACE OF THE STATUTE OR IN ITS LEGISLATIVE HISTORY THAT JUSTIFIES THE
CREATION OF DRASTIC AND CATEGORICAL DISTINCTIONS BETWEEN THOSE TWO
REMEDIES.  /18/ 

THE DISTRICT COURT ALSO GROUNDED ITS DENIAL OF BACKPAY ON THE FACT
THAT THE RESPONDENTS INITIALLY DISCLAIMED ANY INTEREST IN BACKPAY,
FIRST ASSERTING THEIR CLAIM FIVE YEARS AFTER THE COMPLAINT WAS FILED. 
THE COURT CONCLUDED THAT THE PETITIONERS HAD BEEN "PREJUDICED" BY THIS
CONDUCT.  THE COURT OF APPEALS REVERSED ON THE GROUND "THAT THE BROAD
AIMS OF TITLE VII REQUIRE THAT THE ISSUE OF BACK PAY BE FULLY DEVELOPED
AND DETERMINED EVEN THOUGH IT WAS NOT RAISED UNTIL THE POST-TRIAL STAGE
OF LITIGATION," 474 F.2D, AT 141. 

IT IS TRUE THAT TITLE VII CONTAINS NO LEGAL BAR TO RAISING BACKPAY
CLAIMS AFTER THE COMPLAINT FOR INJUNCTIVE RELIEF HAS BEEN FILED, OR
INDEED AFTER A TRIAL ON THAT COMPLAINT HAS BEEN HAD.  /19/ FURTHERMORE,
FED. RULE CIV. PROC. 54 (C) DIRECTS THAT 

"EVERY FINAL JUDGMENT SHALL GRANT THE RELIEF TO WHICH THE PARTY IN
WHOSE FAVOR IT IS RENDERED IS ENTITLED, EVEN IF THE PARTY HAS NOT
DEMANDED SUCH RELIEF IN HIS PLEADINGS."  BUT A PARTY MAY NOT BE
"ENTITLED" TO RELIEF IF ITS CONDUCT OF THE CAUSE HAS IMPROPERLY AND
SUBSTANTIALLY PREJUDICED THE OTHER PARTY.  THE RESPONDENTS HERE WERE
NOT MERELY TARDY, BUT ALSO INCONSISTENT, IN DEMANDING BACKPAY.  TO DENY
BACKPAY BECAUSE A PARTICULAR CAUSE HAS BEEN PROSECUTED IN AN ECCENTRIC
FASHION, PREJUDICIAL TO THE OTHER PARTY, DOES NOT OFFEND THE BROAD
PURPOSES OF TITLE VII.  THIS IS NOT TO SAY, HOWEVER, THAT THE DISTRICT
COURT'S RULING WAS NECESSARILY CORRECT.  WHETHER THE PETITIONERS WERE
IN FACT PREJUDICED, AND WHETHER THE RESPONDENTS' TRIAL CONDUCT WAS
EXCUSABLE, ARE QUESTIONS THAT WILL BE OPEN TO REVIEW BY THE COURT OF
APPEALS, IF THE DISTRICT COURT, ON REMAND, DECIDES AGAIN TO DECLINE TO
MAKE ANY AWARD OF BACKPAY.  /20/  BUT THE STANDARD OF REVIEW WILL BE
THE FAMILIAR ONE OF WHETHER THE DISTRICT COURT WAS "CLEARLY ERRONEOUS"
IN ITS FACTUAL FINDINGS AND WHETHER IT "ABUSED" ITS TRADITIONAL
DISCRETION TO LOCATE "A JUST RESULT" IN LIGHT OF THE CIRCUMSTANCES
PECULIAR TO THE CASE, LANGNES V. GREEN, 282 U.S. 531, 541 (1931).  ON
THESE ISSUES OF PROCEDURAL REGULARITY AND PREJUDICE, THE "BROAD AIMS OF
TITLE VII" PROVIDE NO READY SOLUTION. 

        III 

IN GRIGGS V. DUKE POWER CO., 401 U.S. 424 (1971), THIS COURT
UNANIMOUSLY HELD THAT TITLE VII FORBIDS THE USE OF EMPLOYMENT TESTS
THAT ARE DISCRIMINATORY IN EFFECT UNLESS THE EMPLOYER MEETS "THE BURDEN
OF SHOWING THAT ANY GIVEN REQUIREMENT (HAS)...A MANIFEST RELATIONSHIP
TO THE EMPLOYMENT IN QUESTION."  ID., AT 432.  /21/ THIS BURDEN ARISES,
OF COURSE, ONLY AFTER THE COMPLAINING PARTY OR CLASS HAS MADE OUT A
PRIMA FACIE CASE OF DISCRIMINATION, I.E., HAS SHOWN THAT THE TESTS IN
QUESTION SELECT APPLICANTS FOR HIRE OR PROMOTION IN A RACIAL PATTERN
SIGNIFICANTLY DIFFERENT FROM THAT OF THE POOL OF APPLICANTS.  SEE MC
DONNELL DOUGLAS CORP. V. GREEN, 411 U.S. 792, 802 (1973).  IF AN
EMPLOYER DOES THEN MEET THE BURDEN OF PROVING THAT ITS TESTS ARE "JOB
RELATED," IT REMAINS OPEN TO THE COMPLAINING PARTY TO SHOW THAT OTHER
TESTS OR SELECTION DEVICES, WITHOUT A SIMILARY UNDESIRABLE RACIAL
EFFECT, WOULD ALSO SERVE THE EMPLOYER'S LEGITIMATE INTEREST IN
"EFFICIENT AND TRUSTWORTHY WORKMANSHIP."  ID., AT 801.  SUCH A SHOWING
WOULD BE EVIDENCE THAT THE EMPLOYER WAS USING ITS TESTS MERELY AS A
"PRETEXT" FOR DISCRIMINATION.  ID., AT 804 - 805.  IN THE PRESENT CASE,
HOWEVER, WE ARE CONCERNED ONLY WITH THE QUESTION WHETHER ALBEMARLE HAS
SHOWN ITS TESTS TO BE JOB RELATED. 

THE CONCEPT OF JOB RELATEDNESS TAKES ON MEANING FROM THE FACTS OF
THE GRIGGS CASE.  A POWER COMPANY IN NORTH CAROLINA HAD RESERVED ITS
SKILLED JOBS FOR WHITES PRIOR TO 1965.  THEREAFTER, THE COMPANY ALLOWED
NEGRO WORKERS TO TRANSFER TO SKILLED JOBS, BUT ALL TRANSFEREES--WHITE
AND NEGRO--WERE REQUIRED TO ATTAIN NATIONAL MEDIAN SCORES ON TWO TESTS:

  THE WONDERLIC PERSONNEL TEST, WHICH PURPORTS TO MEASURE GENERAL
INTELLIGENCE, AND THE BENNETT

  MECHANICAL COMPREHENSION TEST.  NEITHER WAS DIRECTED OR INTENDED
TO MEASURE THE ABILITY TO

  LEARN TO PERFORM A PARTICULAR JOB OR CATEGORY OF JOBS....

        * * * * * 

     "... BOTH WERE ADOPTED, AS THE COURT OF APPEALS NOTED, WITHOUT

  MEANINGFUL STUDY OF THEIR RELATIONSHIP TO JOB-PERFORMANCE

  ABILITY.  RATHER, A VICE PRESIDENT OF THE COMPANY TESTIFIED, THE

  REQUIREMENTS WERE INSTITUTED ON THE COMPANY'S JUDGMENT THAT THEY

  GENERALLY WOULD IMPROVE THE OVERALL QUALITY OF THE WORK FORCE." 

  GRIGGS V. DUKE POWER CO., SUPRA, AT 428 - 431. 

THE COURT TOOK NOTE OF "THE INADEQUACY OF BROAD AND GENERAL TESTING
DEVICES AS WELL AS THE INFIRMITY OF USING DIPLOMAS OR DEGREES AS FIXED
MEASURES OF CAPABILITY," ID., AT 433, AND CONCLUDED: 

     " NOTHING IN THE ACT PRECLUDES THE USE OF TESTING OR MEASURING

  PROCEDURES; OBVIOUSLY THEY ARE USEFUL.  WHAT CONGRESS HAS

  FORBIDDEN IS GIVING THESE DEVICES AND MECHANISMS CONTROLLING

  FORCE UNLESS THEY ARE DEMONSTRABLY A REASONABLE MEASURE OF JOB

PERFORMANCE.  . . . WHAT CONGRESS HAS COMMANDED IS THAT ANY TESTS

  USED MUST MEASURE THE PERSON FOR THE JOB AND NOT THE PERSON IN

  THE ABSTRACT."  ID., AT 436. 

LIKE THE EMPLOYER IN GRIGGS, ALBEMARLE USES TWO GENERAL ABILITY
TESTS, THE BETA EXAMINATION, TO TEST NONVERBAL INTELLIGENCE, AND THE
WONDERLIC TEST (FORMS A AND B), THE PURPORTED MEASURE OF GENERAL VERBAL
FACILITY WHICH WAS ALSO INVOLVED IN THE GRIGGS CASE.  APPLICANTS FOR
HIRE INTO VARIOUS SKILLED LINES OF PROGRESSION AT THE PLANT ARE
REQUIRED TO SCORE 100 ON THE BETA EXAM AND 18 ON ONE OF THE WONDERLIC
TEST'S TWO ALTERNATIVE FORMS.  /22/ 

THE QUESTION OF JOB RELATEDNESS MUST BE VIEWED IN THE CONTEXT OF THE
PLANT'S OPERATION AND THE HISTORY OF THE TESTING PROGRAM.  THE PLANT,
WHICH NOW EMPLOYS ABOUT 650 PERSONS, CONVERTS RAW WOOD INTO PAPER
PRODUCTS.  IT IS ORGANIZED INTO A NUMBER OF FUNCTIONAL DEPARTMENTS,
EACH WITH ONE OR MORE DISTINCT LINES OF PROGRESSION, THE THEORY BEING
THAT WORKERS CAN MOVE UP THE LINE AS THEY ACQUIRE THE NECESSARY
SKILLS.  THE NUMBER AND STRUCTURE OF THE LINES HAVE VARIED GREATLY OVER
TIME.  FOR MANY YEARS, CERTAIN LINES WERE THEMSELVES MORE SKILLED AND
PAID HIGHER WAGES THAN OTHERS, AND UNTIL 1964 THESE SKILLED LINES WERE
EXPRESSLY RESERVED FOR WHITE WORKERS.  IN 1968, MANY OF THE UNSKILLED "
NEGRO" LINES WERE "END-TAILED" ONTO SKILLED "WHITE" LINES, BUT IT
APPARENTLY REMAINS TRUE THAT AT LEAST THE TOP JOBS IN CERTAIN LINES
REQUIRE GREATER SKILLS THAN THE TOP JOBS IN OTHER LINES.  IN THIS
SENSE, AT LEAST, IT IS STILL POSSIBLE TO SPEAK OF RELATIVELY SKILLED
AND RELATIVELY UNSKILLED LINES. 

IN THE 1950'S WHILE THE PLANT WAS BEING MODERNIZED WITH NEW AND MORE
SOPHISTICATED EQUIPMENT, THE COMPANY INTRODUCED A HIGH SCHOOL DIPLOMA
REQUIREMETN FOR ENTRY INTO THE SKILLED LINES.  THOUGH THE COMPANY SOON
CONCLUDED THAT THIS REQUIREMENT DID NOT IMPROVE THE QUALITY OF THE
LABOR FORCE, THE REQUIREMENT WAS CONTINUED UNTIL THE DISTRICT COURT
ENJOINED ITS USE.  IN THE LATE 1950'S THE COMPANY BEGAN USING THE BETA
EXAMINATION AND THE BENNETT MECHANICAL COMPREHENSION TEST (ALSO
INVOLVED IN THE GRIGGS CASE) TO SCREEN APPLICANTS FOR ENTRY INTO THE
SKILLED LINES.  THE BENNETT TEST WAS DROPPED SEVERAL YEARS LATER, BUT
USE OF THE BETA TEST CONTINUED.  /23/     THE COMPANY ADDED THE
WONDERLIC TESTS IN 1963, FOR THE SKILLED LINES, ON THE THEORY THAT A
CERTAIN VERBAL INTELLIGENCE WAS CALLED FOR BY THE INCREASING
SOPHISTICATION OF THE PLANT'S OPERATIONS.  THE COMPANY MADE NO ATTEMPT
TO VALIDATE THE TEST FOR JOB RELATEDNESS, /24/  AND SIMPLY ADOPTED THE
NATIONAL "NORM" SCORE OF 18 AS A CUT-OFF POINT FOR NEW JOB APPLICANTS. 
AFTER 1964, WHEN IT DISCONTINUED OVERT SEGREGATION OF THE LINES OF
PROGRESSION, THE COMPANY ALLOWED NEGRO WORKERS TO TRANSFER TO THE
SKILLED LINES IF THEY COULD PASS THE BETA AND WONDERLIC TESTS, BUT FEW
SUCCEEDED IN DOING SO.  INCUMBENTS IN THE SKILLED LINES, SOME OF WHOM
HAD BEEN HIRED BEFORE ADOPTION OF THE TESTS, WERE NOT REQUIRED TO PASS
THEM TO RETAIN THEIR JOBS OR THEIR PROMOTION RIGHTS.  THE RECORD SHOWS
THAT A NUMBER OF WHITE INCUMBENTS IN HIGH RANKING JOB GROUPS COULD NOT
PASS THE TESTS.  /25/ 

BECAUSE DEPARTMENTAL REORGANIZATION CONTINUED UP TO THE POINT OF
TRIAL, AND HAS INDEED CONTINUED SINCE THAT POINT, THE DETAILS OF THE
TESTING PROGRAM ARE LESS THAN CLEAR FROM THE RECORD.  THE DISTRICT
COURT FOUND THAT, SINCE 1963, THE BETA AND WONDERLIC TESTS HAVE BEEN
USED IN 13 LINES OF PROGRESSION, WITHIN EIGHT DEPARTMENTS.  ALBEMARLE
CONTENDS THAT AT PRESENT THE TESTS ARE USED IN ONLY EIGHT LINES OF
PROGRESSION, WITHIN FOUR DEPARTMENTS. 

FOUR MONTHS BEFORE THIS CASE WENT TO TRIAL, ALBEMARLE ENGAGED AN
EXPERT IN INDUSTRIAL PSYCHOLOGY TO "VALIDATE" THE JOB RELATEDNESS OF
ITS TESTING PROGRAM.  HE SPENT A HALF DAY AT THE PLANT AND DEVISED A
"CONCURRENT VALIDATION" STUDY, WHICH WAS CONDUCTED BY PLANT OFFICIALS,
WITHOUT HIS SUPERVISION.  THE EXPERT THEN SUBJECTED THE RESULTS TO
STATISTICAL ANALYSIS.  THE STUDY DEALT WITH 10 JOB GROUPINGS, SELECTED
FROM NEAR THE TOP OF NINE OF THE LINES OF PROGRESSION.  /26/  JOBS WERE
GROUPED TOGETHER SOLELY BY THEIR PROXIMITY IN THE LINE OF PROGRESSION;
NO ATTEMPT WAS MADE TO ANALYZE JOBS IN TERMS OF THE PARTICULAR SKILLS
THEY MIGHT REQUIRE.  ALL, OR NEARLY ALL, EMPLOYEES IN THE SELECTED
GROUPS PARTICIPATED IN THE STUDY--105 EMPLOYEES IN ALL, BUT ONLY FOUR
NEGROES.  WITHIN EACH JOB GROUPING, THE STUDY COMPARED THE TEST SCORES
OF EACH EMPLOYEE WITH AN INDEPENDENT "RANKING" OF THE EMPLOYEE,
RELATIVE TO EACH OF HIS COWORKERS, MADE BY TWO OF THE EMPLOYEE'S
SUPERVISORS.  THE SUPERVISORS, WHO DID NOT KNOW THE TEST SCORES, WERE
ASKED TO 

"DETERMINE WHICH ONES THEY FELT IRRESPECTIVE OF THE JOB THAT THEY
WERE ACTUALLY DOING, BUT IN THEIR RESPECTIVE JOBS, DID A BETTER JOB
THAN THE PERSON THEY WERE RATING AGAINST...."  /27/ 

FOR EACH JOB GROUPING, THE EXPERT COMPUTED THE " PHI COEFFICEINT"
OF STATISTICAL CORRELATION BETWEEN THE TEST SCORES AND AN AVERAGE OF
THE TWO SUPERVISORIAL RANKINGS.  CONSONANT WITH PROFESSIONAL
CONVENTIONS, THE EXPERT REGARDED AS "STATISTICALLY SIGNIFICANT" ANY
CORRELATION THAT COULD HAVE OCCURRED BY CHANCE ONLY FIVE TIMES, OR
FEWER, IN 100 TRIALS.  /28/ ON THE BASIS OF THESE RESULTS, THE DISTRICT
COURT FOUND THAT "(THE PERSONNEL TESTS ADMINISTERED AT THE PLANT HAVE
UNDERGONE VALIDATION STUDIES AND HAVE BEEN PROVEN TO BE JOB RELATED." 
LIKE THE COURT OF APPEALS, WE ARE CONSTRAINED TO DISAGREE. 

THE EEOC HAS ISSUED " GUIDELINES" FOR EMPLOYERS SEEKING TO
DETERMINE, THROUGH PROFESSIONAL VALIDATION STUDIES, WHETHER THEIR
EMPLOYMENT TESTS ARE JOB RELATED.  29 CFR PART 1607.  THESE GUIDELINES
DRAW UPON AND MAKE REFERENCE TO PROFESSIONAL STANDARDS OF TEST
VALIDATION ESTABLISHED BY THE AMERICAN PSYCHOLOGICAL ASSOCIATION.  /29/
THE EEOC GUIDELINES ARE NOT ADMINISTRATIVE "REGULATIONS" PROMULGATED
PURSUANT TO FORMAL PROCEDURES ESTABLISHED BY THE CONGRESS.  BUT, AS
THIS COURT HAS HERETOFORE NOTED, THEY DO CONSTITUTE "(THE
ADMINISTRATIVE INTERPRETATION OF THE ACT BY THE ENFORCING AGENCY," AND
CONSEQUENTLY THEY ARE "ENTITLED TO GREAT DEFERENCE."  GRIGGS V. DUKE
POWER CO., 401 U.S., AT 433 - 434.  SEE ALSO ESPINOZA V. FARAH MFG.
CO., 414 U.S. 86, 94 (1973). 

THE MESSAGE OF THESE GUIDELINES IS THE SAME AS THAT OF THE GRIGGS
CASE--THAT DISCRIMINATORY TESTS ARE IMPERMISSIBLE UNLESS SHOWN, BY
PROFESSIONALLY ACCEPTABLE METHODS, TO BE "PREDICTIVE OF OR
SIGNIFICANTLY CORRELATED WITH IMPORTANT ELEMENTS OF WORK BEHAVIOR WHICH
COMPRISE OR ARE RELEVANT TO THE JOB OR JOBS FOR WHICH CANDIDATES ARE
BEING EVALUATED."  29 CFR SEC. 1607.4(C). 

MEASURED AGAINST THE GUIDELINES, ALBEMARLE'S VALIDATION STUDY IS
MATERIALLY DEFECTIVE IN SEVERAL RESPECTS: 

(1) EVEN IF IT HAD BEEN OTHERWISE ADEQUATE, THE STUDY WOULD NOT HAVE
"VALIDATED" THE BETA AND WONDERLIC TEST BATTERY FOR ALL OF THE SKILLED
LINES OF PROGRESSION FOR WHICH THE TWO TESTS ARE, APPARENTLY, NOW
REQUIRED.  THE STUDY SHOWED SIGNIFICANT CORRELATIONS FOR THE BETA EXAM
IN ONLY THREE OF THE EIGHT LINES.  THOUGH THE WONDERLIC TEST'S FORM A
AND FORM B ARE IN THEORY IDENTICAL AND INTERCHANGEABLE MEASURES OF
VERBAL FACILITY, SIGNIFICANT CORRELATIONS FOR ONE FORM BUT NOT FOR THE
OTHER WERE OBTAINED IN FOUR JOB GROUPINGS.  IN TWO JOB GROUPINGS
NEITHER FORM SHOWED A SIGNIFICANT CORRELATION.  WITHIN SOME OF THE
LINES OF PROGRESSION, ONE FORM WAS FOUND ACCEPTABLE FOR SOME JOB
GROUPINGS BUT NOT FOR OTHERS.  EVEN IF THE STUDY WERE OTHERWISE
RELIABLE, THIS ODD PATCHWORK OF RESULTS WOULD NOT ENTITLE ALBEMARLE TO
IMPOSE ITS TESTING PROGRAM UNDER THE GUIDELINES.  A TEST MAY BE USED IN
JOBS OTHER THAN THOSE FOR WHICH IT HAS BEEN PROFESSIONALLY VALIDATED
ONLY IF THERE ARE "NO SIGNIFICANT DIFFERENCES"  BETWEEN THE STUDIED AND
UNSTUDIED JOBS.  29 CFR SEC. 1607.4 (C)(2).  THE STUDY IN THIS CASE
INVOLVED NO ANALYSIS OF THE ATTRIBUTES OF, OR THE PARTICULAR SKILLS
NEEDED IN, THE STUDIED JOB GROUPS.  THERE IS ACCORDINGLY NO BASIS FOR
CONCLUDING THAT "NO SIGNIFICANT DIFFERENCES"  EXIST AMONG THE LINES OF
PROGRESSION, OR AMONG DISTINCT JOB GROUPINGS WITHIN THE STUDIED LINES
OF PROGRESSION.  INDEED, THE STUDY'S CHECKERED RESULTS APPEAR TO COMPEL
THE OPPOSITE CONCLUSION. 

(2) THE STUDY COMPARED TEST SCORES WITH SUBJECTIVE SUPERVISORIAL
RANKINGS.  WHILE THEY ALLOW THE USE OF SUPERVISORIAL RANKINGS IN TEST
VALIDATION, THE GUIDELINES QUITE PLAINLY CONTEMPLATE THAT THE RANKINGS
WILL BE ELICITED WITH FAR MORE CARE THAN WAS DEMONSTRATED HERE.  /30/
ALBEMARLE'S SUPERVISORS WERE ASKED TO RANK EMPLOYEES BY A "STANDARD"
THAT WAS EXTREMELY VAGUE AND FATALLY OPEN TO DIVERGENT
INTERPRETATIONS.  AS PREVIOUSLY NOTED, EACH "JOB GROUPING" CONTAINED A
NUMBER OF DIFFERENT JOBS, AND THE SUPERVISORS WERE ASKED, IN EACH
GROUPING, TO 

"DETERMINE WHICH ONES (EMPLOYEES) THEY FELT IRRESPECTIVE OF THE JOB
THAT THEY WERE ACTUALLY DOING, BUT IN THEIR RESPECTIVE JOBS, DID A
BETTER JOB THAN THE PERSON THEY WERE RATING AGAINST...."  /31/ THERE IS
NO WAY OF KNOWING PRECISELY WHAT CRITERIA OF JOB PERFORMANCE THE
SUPERVISORS WERE CONSIDERING, WHETHER EACH OF THE SUPERVISORS WAS
CONSIDERING THE SAME CRITERIA OR WHETHER, INDEED, ANY OF THE
SUPERVISORS ACTUALLY APPLIED A FOCUSED AND STABLE BODY OF CRITERIA OF
ANY KIND.  /32/ THERE IS, IN SHORT, SIMPLY NO WAY TO DETERMINE WHETHER
THE CRITERIA ACTUALLY CONSIDERED WERE SUFFICIENTLY RELATED TO THE
COMPANY'S LEGITIMATE INTEREST IN JOB-SPECIFIC ABILITY TO JUSTIFY A
TESTING SYSTEM WITH A RACIALLY DISCRIMINATORY IMPACT. 

(3) THE COMPANY'S STUDY FOCUSED, IN MOST CASES, ON JOB GROUPS NEAR
THE TOP OF THE VARIOUS LINES OF PROGRESSION.  IN GRIGGS V. DUKE POWER
CO., SUPRA, THE COURT LEFT OPEN "THE QUESTION WHETHER TESTING
REQUIREMENTS THAT TAKE INTO ACCOUNT CAPABILITY FOR THE NEXT SUCCEEDING
POSITION OR RELATED FUTURE PROMOTION MIGHT BE UTILIZED UPON A SHOWING
THAT SUCH LONG-RANGE REQUIREMENTS FULFILL A GENUINE BUSINESS NEED." 
401 U.S., AT 432.  THE GUIDELINES TAKE A SENSIBLE APPROACH TO THIS
ISSUE, AND WE NOW ENDORSE IT: 

     " IF JOB PROGRESSION STRUCTURES AND SENIORITY PROVISIONS ARE
SO

  ESTABLISHED THAT NEW EMPLOYEES WILL PROBABLY, WITHIN A REASONABLE

  PERIOD OF TIME AND IN A GREAT MAJORITY OF CASES, PROGRESS TO A

HIGHER LEVEL, IT MAY BE CONSIDERED THAT CANDIDATES ARE BEING

  EVALUATED FOR JOBS AT THAT HIGHER LEVEL.  HOWEVER, WHERE JOB

  PROGRESSION IS NOT SO NEARLY AUTOMATIC, OR THE TIME SPAN IS SUCH

  THAT HIGHER LEVEL JOBS OR EMPLOYEES' POTENTIAL MAY BE EXPECTED TO

  CHANGE IN SIGNIFICANT WAYS, IT SHALL BE CONSIDERED THAT

  CANDIDATES ARE BEING EVALUATED FOR A JOB AT OR NEAR THE ENTRY

  LEVEL."  29 CFR SEC. 1607.4 (C)(1). 

THE FACT THAT THE BEST OF THOSE EMPLOYEES WORKING NEAR THE TOP OF A
LINE OF PROGRESSION SCORE WELL ON A TEST DOES NOT NECESSARILY MEAN THAT
THAT TEST, OR SOME PARTICULAR CUTOFF SCORE ON THE TEST, IS A
PERMISSIBLE MEASURE OF THE MINIMAL QUALIFICATIONS OF NEW WORKERS
ENTERING LOWER LEVEL JOBS.  IN DRAWING ANY SUCH CONCLUSION, DETAILED
CONSIDERATION MUST BE GIVEN TO THE NORMAL SPEED OF PROMOTION, TO THE
EFFICACY OF ON-THE-JOB TRAINING IN THE SCHEME OF PROMOTION, AND TO THE
POSSIBLE USE OF TESTING AS A PROMOTION DEVICE, RATHER THAN AS A SCREEN
FOR ENTRY INTO LOW-LEVEL JOBS.  THE DISTRICT COURT MADE NO FINDINGS ON
THESE ISSUES.  THE ISSUES TAKE ON SPECIAL IMPORTANCE IN A CASE, SUCH AS
THIS ONE, WHERE INCUMBENT EMPLOYEES ARE PERMITTED TO WORK AT EVEN HIGH
LEVEL JOBS WITHOUT PASSING THE COMPANY'S TEST BATTERY.  SEE 29 CFR SEC.
1607.11. 

(4) ALBEMARLE'S VALIDATION STUDY DEALT ONLY WITH JOB-EXPERIENCED
WHITE WORKERS; BUT THE TESTS THEMSELVES ARE GIVEN TO NEW JOB
APPLICANTS, WHO ARE YOUNGER, LARGELY INEXPERIENCED, AND IN MANY
INSTANCES NONWHITE.  THE STANDARDS OF THE AMERICAN PSYCHOLOGICAL
ASSOCIATION STATE THAT IT IS "ESSENTIAL" THAT 

"(THE VALIDITY OF A TEST SHOULD BE DETERMINED ON SUBJECTS WHO ARE AT
THE AGE OR IN THE SAME EDUCATIONAL OR VOCATIONAL SITUATION AS THE
PERSONS FOR WHOM THE TEST IS RECOMMENDED IN PRACTICE."  /33/ THE EEOC
GUIDELINES LIKEWISE PROVIDE THAT "(DATA MUST BE GENERATED AND RESULTS
SEPARATELY REPORTED FOR MINORITY AND NONMINORITY GROUPS WHEREVER
TECHNICALLY FEASIBLE."  29 CRF SEC. 1607.5 (B)(5).  IN THE PRESENT
CASE, SUCH "DIFFERENTIAL VALIDATION" AS TO RACIAL GROUPS WAS VERY
LIKELY NOT "FEASIBLE," BECAUSE YEARS OF DISCRIMINATION AT THE PLANT
HAVE INSURED THAT NEARLY ALL OF THE UPPER LEVEL EMPLOYEES ARE WHITE. 
BUT THERE HAS BEEN NO CLEAR SHOWING THAT DIFFERENTIAL VALIDATION WAS
NOT FEASIBLE FOR LOWER LEVEL JOBS.  MORE IMPORTANTLY, THE GUIDELINES
PROVIDE: 

" IF IT IS NOT TECHNICALLY FEASIBLE TO INCLUDE MINORITY EMPLOYEES IN
VALIDATION STUDIES CONDUCTED ON THE PRESENT WORK FORCE, THE CONDUCT OF
A VALIDATION STUDY WITHOUT MINORITY CANDIDATES DOEN NOT RELIEVE ANY
PERSON OF HIS SUBSEQUENT OBLIGATION FOR VALIDATION WHEN INCLUSION OF
MINORITY CANDIDATES BECOMES TECHNICALLY FEASIBLE."  29 CFR SEC. 1607.5
(B)(1). 

     "... (EVIDENCE OF SATISFACTORY VALIDITY BASED ON OTHER GROUPS

  WILL BE REGARDED AS ONLY PROVISIONAL COMPLIANCE WITH THESE

  GUIDELINES PENDING SEPARATE VALIDATION OF THE TEST FOR THE

  MINORITY GROUP IN QUESTION."  29 CFR SEC. 1607.5 (B)(5). 

FOR ALL THESE REASONS, WE AGREE WITH THE COURT OF APPEALS THAT THE
DISTRICT COURT ERRED IN CONCLUDING THAT ALBEMARLE HAD PROVED THE JOB
RELATEDNESS OF ITS TESTING PROGRAM AND THAT THE RESPONDENTS WERE
CONSEQUENTLY NOT ENTITLED TO EQUITABLE RELIEF.  THE OUTRIGHT REVERSAL
BY THE COURT OF APPEALS IMPLIED THAT AN INJUNCTION SHOULD IMMEDIATELY
ISSUE AGAINST ALL USE OF TESTING AT THE PLANT.  BECAUSE OF THE
PARTICULAR CIRCUMSTANCES HERE, HOWEVER, IT APPEARS THAT THE MORE
PRUDENT COURSE IS TO LEAVE TO THE DISTRICT COURT THE PRECISE FASHIONING
OF THE NECESSARY RELIEF IN THE FIRST INSTANCE.  DURING THE APPELLATE
STAGES OF THIS LITIGATION, THE PLANT HAS APPARENTLY BEEN AMENDING ITS
DEPARTMENTAL ORGANIZATION AND THE USE MADE OF ITS TESTS.  THE
APPROPRIATE STANDARD OF PROOF FOR JOB RELATEDNESS HAS NOT BEEN
CLARIFIED UNTIL TODAY.  SIMILARLY, THE RESPONDENTS HAVE NOT UNTIL TODAY
BEEN SPECIFICALLY APPRISED OF THEIR OPPORTUNITY TO PRESENT EVIDENCE
THAT EVEN VALIDATED TESTS MIGHT BE A "PRETEXT" FOR DISCRIMINATION IN
LIGHT OF ALTERNATIVE SELECTION PROCEDURES AVAILABLE TO THE COMPANY.  WE
ALSO NOTE THAT THE GUIDELINES AUTHORIZE PROVISIONAL USE OF TESTS,
PENDING NEW VALIDATION EFFORTS, IN CERTAIN VERY LIMITED CIRCUMSTANCES. 
29 CFR SEC. 1607.9.  WHETHER SUCH CIRCUMSTANCES NOW OBTAIN IS A MATTER
BEST DECIDED, IN THE FIRST INSTANCE, BY THE DISTRICT COURT.  THAT COURT
WILL BE FREE TO TAKE SUCH NEW EVIDENCE, AND TO EXERCISE SUCH CONTROL OF
THE COMPANY'S USE AND VALIDATION OF EMPLOYEE SELECTION PROCEDURES, AS
ARE WARRANTED BY THE CIRCUMSTANCES AND BY THE CONTROLLING LAW. 

ACCORDINGLY, THE JUDGMENT IS VACATED, AND THESE CASES ARE REMANDED
TO THE DISTRICT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

                    IT IS SO ORDERED. 

/1/ THE PAPER MILL HAS CHANGED HANDS DURING THIS LITIGATION, BUT
THESE CHANGES ARE IRRELEVANT TO THE ISSUES CONSIDERED IN THIS OPINION,
AND THE EMPLOYER INTEREST WILL BE REFERRED TO THROUGHOUT AS ALBEMARLE
OR THE COMPANY.  THE LABOR UNION IS INVOLVED IN ONLY THE BACKPAY ASPECT
OF THIS LITIGATION. 

/2/ THE RELEVANT PROCEDURES MAY BE FOUND AT 42 U.S.C.  SEC. 2000E -
5 (F)(1) (1970 ED., SUPP. III).  SEE MC DONNELL DOUGLAS CORP. V. GREEN,
411 U.S. 792, 798 (1973); ALEXANDER V. GARDNER-DENVER CO., 415 U.S. 36,
44 - 45 (1974).  SEE N. 8, INFRA. 

/3/ UNDER TITLE VII BACKPAY LIABILITY EXISTS ONLY FOR PRACTICES
OCCURRING AFTER THE EFFECTIVE DATE OF THE ACT, JULY 2, 1965, AND
ACCRUES ONLY FROM A DATE TWO YEARS PRIOR TO THE FILING OF A CHARGE WITH
THE EEOC.  SEE 42 U.S.C. SEC. 2000E - 5(G) (1970 ED., SUPP. III).  THUS
NO AWARD WAS POSSIBLE WITH REGARD TO THE PLANT'S PRE-1964 POLICY OF
"STRICT SEGREGATION."     /4/ SEE INFRA, AT 429 - 430. 

/5/ 419 U.S. 1068 (1974).  THE FOURTH CIRCUIT INITIALLY GRANTED A
PETITION TO REHEAR THIS CASE EN BANC.  BUT THAT PETITION WAS ULTIMATELY
DENIED, AFTER THIS COURT RULED, ON A CERTIFIED QUESTION, THAT "SENIOR
CIRCUIT JUDGES WHO ARE MEMBERS OF THE ORIGINALLY ASSIGNED DIVISION
HEARING A CASE ARE NOT AUTHORIZED BY CONGRESS TO PARTICIPATE IN THE
DETERMINATION WHETHER TO REHEAR THAT CASE IN BANC."  417 U.S. 622, 624
(1974). 

/6/ FOR EXAMPLE, COMPARE KOBER V. WESTINGHOUSE ELECTRIC CORP., 480
F.2D 240 (CA3 1973), WITH PETTWAY V. AMERICAN CAST IRON PIPE CO., 494
F.2D 211 (CA5 1974), AND HEAD V. TIMKEN ROLLER BEARING CO., 486 F.2D
870 (CA6 1973). 

/7/ FOR EXAMPLE, COMPARE PETTWAY V. AMERICAN CAST IRON PIPE CO.,
SUPRA, WITH CASTRO V. BEECHER, 459 F.2D 725 (CA1 1972). 

/8/ THE PETITIONERS ALSO CONTEND THAT NO BACKPAY CAN BE AWARDED TO
THOSE UNNAMED PARTIES IN THE PLAINTIFF CLASS WHO HAVE NOT THEMSELVES
FILED CHARGES WITH THE EEOC.  WE REJECT THIS CONTENTION.  THE COURTS OF
APPEALS THAT HAVE CONFRONTED THE ISSUE ARE UNANIMOUS IN RECOGNIZING
THAT BACKPAY MAY BE AWARDED ON A CLASS BASIS UNDER TITLE VII WITHOUT
EXHAUSTION OF ADMINISTRATIVE PROCEDURES BY THE UNNAMED CLASS MEMBERS. 
SEE, E. G., ROSEN V. PUBLIC SERVICE ELECTRIC & GAS CO., 409 F.2D 775,
780 (CA3 1969), AND 477 F.2D 791, 802 (CA4 1971); UNITED STATES V.
GEORGIA POWER CO., 474 F.2D 906, 919 - 921 (CA5 1973); HEAD V. TIMKEN
ROLLER BEARING CO., SUPRA, AT 876; BOWE V. COLGATE-PALMOLIVE CO., 416
F.2D 711, 719 - 721 (CA7 1969); UNITED STATES V. N.L. INDUSTRIES, INC.,
479 F.2D 354, 378 - 379 (CA8 1973).  THE CONGRESS PLAINLY RATIFIED THIS
CONSTRUCTION OF THE ACT IN THE COURSE OF ENACTING THE EQUAL EMPLOYMENT
OPPORTUNITY ACT OF 1972, PUB. L. 92 - 261, 86 STAT. 103.  THE HOUSE OF
REPRESENTATIVES PASSED A BILL, H.R. 1746, 92D CONG., 1ST SESS., THAT
WOULD HAVE BARRED, IN SEC. 3(E), AN AWARD OF BACKPAY TO ANY INDIVIDUAL
WHO "NEITHER FILED A CHARGE (WITH THE EEOC) NOR WAS NAMED IN A CHARGE
OR AMENDMENT THERETO."  BUT THE SENATE COMMITTEE ON LABOR AND PUBLIC
WELFARE RECOMMENDED, INSTEAD, THE RE-ENACTMENT OF THE BACKPAY PROVISION
WITHOUT SUCH A LIMITATION, AND CITED WITH APPROVAL SEVERAL CASES
HOLDING THAT BACKPAY WAS AWARDABLE TO CLASS MEMBERS WHO HAD NOT
PERSONALLY FILED, NOR BEEN NAMED IN, CHARGES TO THE EEOC.  S. REP. NO.
62 - 415, P.27 (1971).  SEE ALSO 118 CONG. REC. 4942 (1972).  THE
SENATE PASSED A BILL WITHOUT THE HOUSE'S LIMITATION, ID., AT 4944, AND
THE CONFERENCE COMMITTEE ADOPTED THE SENATE POSITION.  A SECTION-BY
"(A) PROVISION LIMITING CLASS ACTIONS WAS CONTAINED IN THE HOUSE BILL
AND SPECIFICALLY REJECTED BY THE CONFERENCE COMMITTEE," ID., AT 7168,
7565.  THE CONFERENCE COMMITTEE BILL WAS ACCEPTED BY BOTH CHAMBERS. 
ID., AT 7170, 7573. 

/9/ TITLE 42 U.S.C. SEC. 2000E - 5(G) (1970 ED., SUPP. III) 

PROVIDES:  " IF THE COURT FINDS THAT THE RESPONDENT HAS
INTENTIONALLY ENGAGED IN OR IS INTENTIONALLY ENGAGING IN AN UNLAWFUL
EMPLOYMENT PRACTICE CHARGED IN THE COMPLAINT, THE COURT MAY ENJOIN THE
RESPONDENT FROM ENGAGING IN SUCH UNLAWFUL EMPLOYMENT PRACTICE, AND
ORDER SUCH AFFIRMATIVE ACTION AS MAY BE APPROPRIATE, WHICH MAY INCLUDE,
BUT IS NOT LIMITED TO, REINSTATEMENT OR HIRING OF EMPLOYEES, WITH OR
WITHOUT BACK PAY (PAYABLE BY THE EMPLOYER, EMPLOYMENT AGENCY, OR LABOR
ORGANIZATION, AS THE CASE MAY BE, RESPONSIBLE FOR THE UNLAWFUL
EMPLOYMENT PRACTICE), OR ANY OTHER EQUITABLE RELIEF AS THE COURT DEEMS
APPROPRIATE.  BACK PAY LIABILITY SHALL NOT ACCRUE FROM A DATE MORE THAN
TWO YEARS PRIOR TO THE FILING OF A CHARGE WITH THE COMMISSION.  INTERIM
EARNINGS OR AMOUNTS EARNABLE WITH REASONABLE DILIGENCE BY THE PERSON OR
PERSONS DISCRIMINATED AGAINST SHALL OPERATE TO REDUCE THE BACK PAY
OTHERWISE ALLOWABLE.  NO ORDER OF THE COURT SHALL REQUIRE THE ADMISSION
OR REINSTATEMENT OF AN INDIVIDUAL AS A MEMBER OF A UNION, OR THE
HIRING, REINSTATEMENT, OR PROMOTION OF AN INDIVIDUAL AS AN EMPLOYEE, OR
THE PAYMENT TO HIM OF ANY BACK PAY, IF SUCH INDIVIDUAL WAS REFUSED
ADMISSION, SUSPENDED, OR EXPELLED, OR WAS REFUSED EMPLOYMENT OR
ADVANCEMENT OR WAS SUSPENDED OR DISCHARGED FOR ANY REASON OTHER THAN
DISCRIMINATION ON ACCOUNT OF RACE, COLOR, RELIGION, SEX, OR NATIONAL
ORIGIN OR IN VIOLATION OF SECTION 2000E - 3 (A) OF THIS TITLE." 

/10/ ELDON, L.C., IN GEE V. PRITCHARD, 2 SWANSTON 03, 14, 36 ENG.
REP. 670, 674 (1818). 

/11/ SECTION 10(C) OF THE NLRA, 49 STAT. 454, AS AMENDED, 29 U.S.C.
SEC. 160(C), PROVIDES THAT WHEN THE LABOR BOARD HAS FOUND THAT A PERSON
HAS COMMITTED 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 SUBCHAPTER."  THE BACKPAY PROVISION OF TITLE VII PROVIDES THAT
WHEN THE COURT HAS FOUND "AN UNLAWFUL EMPLOYMENT PRACTICE," IT "MAY
ENJOIN" THE PRACTICE "AND ORDER SUCH AFFIRMATIVE ACTION AS MAY BE
APPROPRIATE, WHICH MAY INCLUDE, BUT IS NOT LIMITED TO, REINSTATEMENT OR
HIRING OF EMPLOYEES, WITH OR WITHOUT BACK PAY ...."  42 U.S.C. SEC.
2000E - 5 (G) (1970 ED., SUPP. III).  THE FRAMERS OF TITLE VII STATED
THAT THEY WERE USING THE NLRA PROVISION AS A MODEL.  110 CONG. REC.
6549 (1964)(REMARKS OF SEN. HUMPHREY); ID., AT 7214 (INTERPRETATIVE
MEMORANDUM BY SENS.  CLARK AND CASE).  IN EARLY VERSIONS OF THE TITLE
VII PROVISION ON REMEDIES, IT WAS STATED THAT A COURT "MAY" ISSUE
INJUNCTIONS, BUT "SHALL" ORDER APPROPRIATE AFFIRMATIVE ACTION.  THIS
ANOMALY WAS REMOVED BY SUBSTITUTE AMENDEMENT NO. 656, 110 CONG. REC.
12814, 12819.  THE FRAMERS REGARDED THIS AS MERELY A "MINOR LANGUAGE
CHANGE," ID., AT 12723 - 12724 (REMARKS OF SEN. HUMPHREY).  WE CAN FIND
HERE NO INTENT TO BACK AWAY FROM THE NLRA MODEL OR TO DENIGRATE IN ANY
WAY THE STATUS OF BACKPAY RELIEF. 

/12/ " THE FINDING OF AN UNFAIR LABOR PRACTICE AND DISCRIMINATORY
DISCHARGE IS PRESUMPTIVE PROOF THAT SOME BACK PAY IS OWED BY THE
EMPLOYER," NLRB V. MASTRO PLASTICS CORP., 354 F.2D 170, 178 (CA2
1965).  WHILE THE BACKPAY DECISION RESTS IN THE NLRB'S DISCRETION, AND
NOT WITH THE COURTS, NLRB V. RUTTER-REX MFG. COL, 396 U.S. 258, 263
(1969), THE BOARD HAS FROM ITS INCEPTION PURSUED "A PRACTICALLY UNIFORM
POLICY WITH RESPECT TO THESE ORDERS REQUIRING AFFIRMATIVE ACTION." 
NLRB, FIRST ANNUAL REPORT 124, (1936).  "(IN ALL BUT A FEW CASES
INVOLVING DISCRIMINATORY DISCHARGES, DISCRIMINATORY REFUSALS TO EMPLOY
OR REINSTATE, OR DISCRIMINATORY DEMOTIONS IN VIOLATION OF SECTION 8(3),
THE BOARD HAS ORDERED THE EMPLOYER TO OFFER REINSTATEMENT TO THE
EMPLOYEE DISCRIMINATED AGAINST AND TO MAKE WHOLE SUCH EMPLOYEE FOR ANY
LOSS OF PAY THAT HE HAS SUFFERED BY REASON OF THE DISCRIMINATION." 
NLRB, SECOND ANNUAL REPORT 148 (1937). 

/13/ AS TO THE UNSUCCESSFUL EFFORT TO RESTRICT CLASS ACTIONS FOR
BACKPAY, SEE N. 8, SUPRA.  IN ADDITION, THE SENATE REJECTED AN
AMENDMENT WHICH WOULD HAVE REQUIRED A JURY TRIAL IN TITLE VII CASES
INVOLVING BACKPAY, 118 CONG. REC. 4917, 4919 - 4920 (1972) (REMARKS OF
SENS.  ERVIN AND JAVITS), AND REJECTED A PROVISION THAT WOULD HAVE
LIMITED BACKPAY LIABILITY TO A DATE TWO YEARS PRIOR TO FILING A
COMPLAINT IN COURT.  COMPARE H.R. 1746, WHICH PASSED THE HOUSE, WITH
THE SUCCESSFUL CONFERENCE COMMITTEE BILL, ANALYZED AT 118 CONG. REC.
7168 (1972), WHICH ADOPTED A SUBSTANTIALLY MORE LIBERAL LIMITATION,
I.E., A DATE TWO YEARS PRIOR TO FILING A CHARGE WITH THE EEOC.  SEE 42
U.S.C. SEC. 2000E - 5(G) (1970 ED., SUPP. III). 

/14/ IT IS NECESSARY, THEREFORE, THAT IF A DISTRICT COURT DOES
DECLINE TO AWARD BACKPAY, IT CAREFULLY ARTICULATE ITS REASONS. 

/15/ THE DISTRICT COURT THOUGHT THAT THE BREACH OF TITLE VII HAD NOT
BEEN IN "BAD FAITH" BECAUSE JUDICIAL DECISIONS HAD ONLY RECENTLY
FOCUSED DIRECTLY ON THE DISCRIMINATORY IMPACT OF SENIORITY SYSTEMS. 
THE COURT ALSO NOTED THAT ALBEMARLE HAD TAKEN SOME STEPS TO RECRUIT
BLACK WORKERS INTO ONE OF ITS DEPARTMENTS AND TO ELIMINATE STRICT
SEGREGATION THROUGH THE 1968 DEPARTMENTAL MERGER. 

/16/ THE BACKPAY REMEDY OF THE NLRA ON WHICH THE TITLE VII REMEDY
WAS MODELED, SEE N. 11, SUPRA, IS FULLY AVAILABLE EVEN WHERE THE
"UNFAIR LABOR PRACTICE" WAS COMMITTED IN GOOD FAITH.  SEE, E.G., NLRB
V. RUTTER-REX MFG. CO., 396 U.S., AT 265; AMERICAN MACHINERY CORP. V.
NLRB, 424 F.2D 1321, 1328 - 1330 (CA5 1970); LAIDLAW CORP. V. NLRB, 414
F.2D 99, 107 (CA 1969). 

/17/ TITLE VII ITSELF RECOGNIZES A COMPLETE, BUT VERY NARROW,
IMMUNITY FOR EMPLOYER CONDUCT SHOWN TO HAVE BEEN UNDERTAKEN "IN GOOD
FAITH, IN CONFORMITY WITH, AND IN RELIANCE ON ANY WRITTEN
INTERPRETATION OR OPINION OF THE (EQUAL EMPLOYMENT OPPORTUNITY)
COMMISSION."  72 U.S.C. SEC. 2000E - 12 (B).  IT IS NOT FOR THE COURTS
TO UPSET THIS LEGISLATIVE CHOICE TO RECOGNIZE ONLY A NARROWLY DEFINED
"GOOD FAITH" DEFENSE. 

/18/ WE NOTE THAT SOME COURTS HAVE DENIED BACKPAY, AND LIMITED THEIR
JUDGMENTS TO DECLARATORY RELIEF, IN CASES WHERE THE EMPLOYER
DISCRIMINATED ON SEXUAL GROUNDS IN RELIANCE ON STATE "FEMALE
PROTECTIVE" STATUTES THAT WERE INCONSISTENT WITH TITLE VII.  SEE E.G.,
KOBER V. WESTINGHOUSE ELECTRIC CORP., 480 F.2D (CA3 1973); LE BLANC V.
SOUTHERN BELL TELEPHONE & TELEGRAPH CO., 460 F.2D 1228 (CA5 1972);
MANNING V. GENERAL MOTORS CORP., 466 F.2D 812 (CA6 1972); ROSENFELD V.
SOUTHERN PACIFIC CO., 444 F.2D 1219 (CA9 1971).  THERE IS NO OCCASION
IN THIS CASE TO DECIDE WHETHER THESE DECISIONS WERE CORRECT.  AS TO THE
EFFECT OF TITLE VII ON STATE STATUTES INCONSISTENT WITH IT, SEE 42
U.S.C. SEC. 2000E - 7. 

/19/ SEE ROSEN V. PUBLIC SERVICE ELECTRIC & GAS CO., 409 F.2D, AT
780 N. 20; ROBINSON V. LORILLARD CORP., 444 F.2D, AT 802 - 803; UNITED
STATES V. HAYES INTERNATIONAL CORP., 456 F.2D 112, 116, 121 (CA5
1972). 

/20/ THE DISTRICT COURT'S STATED GROUNDS FOR DENYING BACKPAY WERE,
APPARENTLY, CUMULATIVE RATHER THAN INDEPENDENT.  THE DISTRICT COURT
MAY, OF COURSE, RECONSIDER ITS BACKPAY DETERMINATION IN LIGHT OF OUR
RULING ON THE "GOOD FAITH" QUESTION. 

/21/ IN GRIGGS, THE COURT WAS CONSTRUING 42 U.S.C. SEC. 2000E -
2(H), WHICH PROVIDES IN PERTINENT PART THAT IT SHALL NOT "BE UNLAWFUL
EMPLOYMENT PRACTICE FOR AN EMPLOYER TO GIVE AND TO ACT UPON THE RESULTS
OF ANY PROFESSIONALLY DEVELOPED ABILITY TEST PROVIDED THAT SUCH TEST,
ITS ADMINISTRATION OR ACTION UPON THE RESULTS IS NOT DESIGNED, INTENDED
OR USED TO DISCRIMINATE BECAUSE OF RACE, COLOR, RELIGION, SEX OR
NATIONAL ORIGIN." 

/22/ ALBEMARLE HAS INFORMED US THAT IT HAS NOW REDUCED THE CUT-OFF
SCORE TO 17 ON THE WONDERLIC TEST. 

/23/ WHILE THE COMPANY CONTENDS THAT THE BENNETT AND BETA TESTS WERE
"LOCALLY VALIDATED" WHEN THEY WERE INTRODUCED, NO RECORD OF THIS
VALIDATION WAS MADE.  PLANT OFFICIALS COULD RECALL ONLY THE BAREST
OUTLINES OF THE ALLEGED VALIDATION.  JOB RELATEDNESS CANNOT BE PROVED
THROUGH VAGUE AND UNSUBSTANTIATED HEARSAY. 

/24/ AS EXPLAINED BY THE RESPONSIBLE PLANT OFFICIAL, THE WONDERLIC
TEST WAS CHOSEN IN RATHER CASUAL FASHION:  " I HAD HAD EXPERIENCE WITH
USING THE WONDERLIC BEFORE, WHICH IS A SHORT FORM VERBAL INTELLIGENCE
TEST, AND KNEW THAT IT HAD, UH, PROBABLY MORE VALIDATION STUDIES BEHIND
IT THAN ANY OTHER SHORT FORM VERBAL INTELLIGENCE TEST.  SO, AFTER
CONSULTATION WE DECIDED TO INSTITUTE THE WONDERLIC, IN ADDITION TO THE
BETA, IN VIEW OF THE FACT THAT THE MILL HAD CHANGED QUITE A BIT AND IT
HAD BECOME EXCEEDINGLY MORE COMPLEX IN OPERATION.... (WE DID NOT, UH,
VALIDATE IT, UH, LOCALLY, PRIMARILY, BECAUSE OF THE, THE EXPENSE OF
CONDUCTING SUCH A VALIDATION, AND THERE WERE SOME OTHER CONSIDERATIONS,
SUCH AS, UH, WE DIDN'T KNOW WHETHER WE WOULD GET THE CO-OPERATION OF
THE EMPLOYEES THAT WE'D NEED TO VALIDATE IT AGAINST IN TAKING THE TEST,
AND WE CERTAINLY HAVE TO HAVE THAT, SO, WE USED NATIONAL NORMS AND ON
MY SUGGESTION AFTER STUDY OF THE WONDERLIC AND NORMS HAD BEEN
ESTABLISHED NATIONALLY FOR SKILLED JOBS, WE DEVELOPED A, UH, CUT-OFF
SCORE OF EIGHTEEN (18)." 

/25/ IN THE COURSE OF A 1971 VALIDATION EFFORT, SEE SUPRA, AT 411
AND INFRA, THIS PAGE AND 430, TEST SCORES WERE ACCUMULATED FOR 105
INCUMBENT EMPLOYEES (101 OF WHOM WERE WHITE) WORKING IN RELATIVELY HIGH
RANKING JOBS.  SOME OF THESE EMPLOYEES APPARENTLY TOOK THE TESTS FOR
THE FIRST TIME AS PART OF THIS STUDY.  THE COMPANY'S EXPERT TESTIFIED
THAT THE TEST CUTOFF SCORES ORIGINALLY USED TO SCREEN THESE INCUMBENTS
FOR EMPLOYMENT OR PROMOTION "COULDN'T HAVE BEEN .... VERY HIGH SCORES
BECAUSE SOME OF THESE GUYS TESTED VERY LOW, AS LOW AS 8 IN THE
WONDERLIC TEST, AND AS LOW AS 95 IN THE BETA.  THEY COULDN'T HAVE BEEN
USING VERY HIGH CUT-OFF SCORES OR THEY WOULDN'T HAVE THESE LOW TESTING
EMPLOYEES." 

/26/ SEE THE CHARTS APPENDED TO THIS OPINION.  IT SHOULD BE NOTED
THAT TESTING IS NO LONGER REQUIRED FOR SOME OF THE JOB GROUPS LISTED. 

/27/ THIS "STANDARD" FOR THE RANKING WAS DESCRIBED BY THE PLANT
OFFICIAL WHO OVERSAW THE CONDUCT OF THE STUDY. 

/28/ THE RESULTS OF THE STUDY ARE DISPLAYED ON CHART A IN THE
APPENDIX TO THIS OPINION. 

/29/ AMERICAN PSYCHOLOGICAL ASSOCIATION, STANDARDS FOR EDUCATIONAL
AND PSYCHOLOGICAL TESTS AND MANUALS (1966) (HEREAFTER APA STANDARDS). 
A VOLUME OF THE SAME TITLE, CONTAINING MODIFICATIONS, WAS ISSUED IN
1974.  THE EEOC GUIDELINES REFER TO THE APA STANDARDS AT 29 CFR SEC.
1607.5 (A).  VERY SIMILAR GUIDELINES HAVE BEEN ISSUED BY THE SECRETARY
OF LABOR FOR THE USE OF FEDERAL CONTRACTORS.  41 CFR SEC. 60 - 3.1 ET
SEQ. 

/30/ THE GUIDELINES PROVIDE, AT 29 CFR SECS. 1607.5 (B)(3) AND 

(4):  "(3) THE WORK BEHAVIORS OR OTHER CRITERIA OF EMPLOYEE ADEQUACY
WHICH THE TEST IS INTENDED TO PREDICT OR IDENTIFY MUST BE FULLY
DESCRIBED; AND, ADDITIONALLY, IN THE CASE OF RATING TECHNIQUES, THE
APPRAISAL FORMS) AND INSTRUCTIONS TO THE RATERS) MUST BE INCLUDED AS A
PART OF THE VALIDATION EVIDENCE.  SUCH CRITERIA MAY INCLUDE MEASURES
OTHER THAN ACTUAL WORK PROFICIENCY, SUCH AS TRAINING TIME, SUPERVISORY
RATINGS, REGULARITY OF ATTENDANCE AND TENURE.  WHATEVER CRITERIA ARE
USED THEY MUST REPRESENT MAJOR OR CRITICAL WORK BEHAVIORS AS REVEALED
BY CAREFUL JOB ANALYSES.     "(4) IN VIEW OF THE POSSIBILITY OF BIAS
INHERENT IN SUBJECTIVE EVALUATIONS, SUPERVISORY RATING TECHNIQUES
SHOULD BE CAREFULLY DEVELOPED, AND THE RATINGS SHOULD BE CLOSELY
EXAMINED FOR EVIDENCE OF BIAS.  IN ADDITION, MINORITIES MIGHT OBTAIN
UNFAIRLY LOW PERFORMANCE CRITERION SCORES FOR REASONS OTHER THAN
SUPERVISOR'S PREJUDICE, AS WHEN, AS NEW EMPLOYEES, THEY HAVE HAD LESS
OPPORTUNITY TO LEARN JOB SKILLS.  THE GENERAL POINT IS THAT ALL
CRITERIA NEED TO BE EXAMINED TO INSURE FREEDOM FROM FACTORS WHICH WOULD
UNFAIRLY DEPRESS THE SCORES OF MINORITY GROUPS." 

/31/ SEE N.27, SUPRA. 

/32/ IT CANNOT ESCAPE NOTICE THAT ALBEMARLE'S STUDY WAS CONDUCTED BY
PLANT OFFICIALS, WITHOUT NEWTRAL, ON-THE-SCENE OVERSIGHT, AT A TIME
WHEN THIS LITIGATION WAS ABOUT TO COME TO TRIAL.  STUDIES SO CLOSELY
CONTROLLED BY AN INTERESTED PARTY IN LITIGATION MUST BE EXAMINED WITH
GREAT CARE. 

/33/ APA STANDARDS, SUPRA, N.29, AT C 5.4. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

        APPENDIX TO OPINION OF THE COURT

   CHART A

        (TABLE:  RESULTS OF VALIDATION STUDY, OMITTED PAGE 437)

        NOTE 

THE JOB GROUPS ARE IDENTIFIED IN CHART B. N INDICATES THE NUMBER OF
EMPLOYEES TESTED.  A SINGLE (DOUBLE) ASTERISK INDICATES THE " PHI"
COEFFICIENT OF CORRELATION, SHOWN ON THE CHART, IS STATISTICALLY
SIGNIFICANT AT A 95% (99%) LEVEL OF CONFIDENCE.  THE OTHER COEFFICIENTS
ARE NOT STATISTICALLY SIGNIFICANT. 

        CHART B

     (CHARTS:  ALBEMARLE'S SKILLED LINES OF PROGRESSION, OMITTED

           PAGES 438 - 439) 

NOTE:  THE NUMBERED JOB GROUPS ARE THOSE EXAMINED IN THE VALIDATION
STUDY SUMMARIZED IN CHART A.  TESTING IS NO LONGER REQUIRED FOR ENTRY
INTO THE WOODYARD DEPARTMENT. 

MR. JUSTICE MARSHALL, CONCURRING. 

I AGREE WITH THE OPINION OF THE COURT.  I WRITE TODAY ONLY TO MAKE
THE FOLLOWING OBSERVATIONS ABOUT THE PROCEEDINGS IN THE DISTRICT COURT
ON REMAND RELATIVE TO THE BACKPAY ISSUE. 

AS THE COURT AFFIRMS, THERE IS NO LEGAL BAR TO RAISING A CLAIM FOR
BACKPAY UNDER TITLE VII AT ANY TIME IN THE PROCEEDINGS, EVEN "INDEED
AFTER A TRIAL ON (THE) COMPLAINT (FOR INJUNCTIVE RELIEF) HAS BEEN
HAD."  ANTE, AT 424.  FURTHERMORE, ONLY THE MOST UNUSUAL CIRCUMSTANCES
WOULD CONSTITUTE AN EQUITABLE BARRIER TO THE AWARD OF MAKEWHOLE RELIEF
WHERE LIABILITY IS OTHERWISE ESTABLISHED.  THE BAR OF LACHES,
PREDICATED ON THE PREJUDICE TO A DEFENDANT'S CASE FROM THE TARDY ENTRY
OF A PRAYER FOR COMPENSATION, SHOULD BE PARTICULARLY DIFFICULT TO
ESTABLISH. 

BACKPAY IN TITLE VII CASES IS GENERALLY COMPUTED, WITH RESPECT TO
EACH AFFECTED EMPLOYEE OR GROUP OF EMPLOYEES, BY DETERMINING THE AMOUNT
OF COMPENSATION LOST AS A DIRECT RESULT OF THE EMPLOYER'S
DISCRIMINATORY DECISION NOT TO HIRE OR PROMOTE.  IN LITIGATION SUCH AS
THIS, WHERE THE PLAINTIFF CLASS IS LIMITED TO PRESENT AND FORMER
EMPLOYEES OF PETITIONER COMPANY WHO WERE DENIED PROMOTIONS INTO THE
MORE LUCRATIVE POSITIONS BECAUSE OF THEIR RACE, THERE IS NO NEED TO
MAKE ADDITIONAL FINDINGS AND OFFSETTING COMPUTATIONS FOR WAGES EARNED
IN ALTERNATIVE EMPLOYMENT DURING THE RELEVANT PERIOD. 

THE INFORMATION NEEDED IN ORDER TO COMPUTE BACKPAY FOR NONPROMOTION
IS CONTAINED IN THE PERSONNEL RECORDS AND PAY SCHEDULES NORMALLY
MAINTAINED BY AN EMPLOYER, SOME UNDER COMPULSION OF LAW.  THESE DATA
INCLUDE THE TIME AT WHICH AN EMPLOYEE IN THE FAVORED GROUP WAS PROMOTED
OVER AN OTHERWISE MORE SENIOR MEMBER OF THE DISFAVORED CLASS, AND THE
WAGE DIFFERENTIAL THAT THE PROMOTION ENTAILED.  RARELY, IF EVER, COULD
AN EMPLOYER PLAUSIBLY INVOKE THE DOCTRINE OF LACHES ON THE USUAL GROUND
THAT THE PASSAGE OF TIME HAS PUT BEYOND REACH EVIDENCE OR TESTIMONY
NECESSARY TO HIS CASE. 

THE PREJUDICE ON WHICH THE DISTRICT COURT RELIED HERE WAS, INDEED,
OF A DIFFERENT AND MORE SPECULATIVE VARIETY.  THE COURT MADE NO
FINDINGS OF FACTS RELEVANT TO THE SUBJECT, BUT FOUND IT "APPARENT" THAT
PREJUDICE WOULD ACCRUE BECAUSE "(THE DEFENDANTS MIGHT HAVE CHOSEN TO
EXERCISE UNUSUAL ZEAL IN HAVING THIS COURT DETERMINE THEIR RIGHTS AT AN
EARLIER DATE HAD THEY KNOWN THAT BACK PAY WOULD BE AT ISSUE."  2 APP.
498.  THIS INDULGENT SPECULATION IS CLEARLY NOT AN ADEQUATE BASIS ON
WHICH TO DENY THE SUCCESSFUL TITLE VII COMPLAINANT COMPENSATORY BACKPAY
AND SURELY EVEN LESS OF A REASON FOR PENALIZING THE MEMBERS OF THE
CLASS THAT HE REPRESENTS.  /1/ IN POSING AS AN ISSUE ON REMAND "(W)
HETHER THE PETITIONERS WERE IN FACT PREJUDICED," ANTE, AT 424 (EMPHASIS
ADDED), THE COURT RECOGNIZES AS MUCH. 

ALTHOUGH ON THE RECORD NOW BEFORE US I HAVE NO DOUBT THAT
RESPONDENTS' TARDINESS IN ASSERTING THEIR CLAIM TO BACKPAY WAS
EXCUSABLE IN LIGHT OF THE UNCERTAIN STATE OF THE LAW DURING THE FIRST
YEARS OF THIS LITIGATION, I AGREE THAT THE DISTRICT COURT SHOULD BE THE
FIRST TO PASS UPON THE ISSUES AS THE COURT HAS POSED THEM.  DOUBTFUL
THOUGH I REMAIN ABOUT THEIR ABILITY TO DO SO, PETITIONERS ARE ENTITLED
AT LEAST TO AN OPPORTUNITY TO PROVE THAT RESPONDENTS' DELAY PREJUDICED
THEIR DEFENSE SO SUBSTANTIALLY AS TO MAKE AN AWARD OF COMPENSATORY
RELIEF OPPRESSIVE. 

/1/ EVEN THE DISTRICT COURT'S FORMULATION, IF FOUNDED UPON PROOF
THAT THE DEFENDANTS WOULD HAVE "CHOSEN TO EXERCISE UNUSUAL ZEAL," WOULD
ONLY JUSTIFY A LIMITATION ON THE AWARD OF BACKPAY TO REFLECT THE
EARLIER DATE AT WHICH THE COURT WOULD HAVE AWARDED IT; IN NO EVENT
WOULD IT SUPPORT THE DENAIL OF ALL BACKPAY RELIEF. 

MR. JUSTICE REHNQUIST, CONCURRING. 

I JOIN THE OPINION OF THE COURT.  THE MANNER IN WHICH 42 U.S.C. SEC.
2000E - 5 (G) (1970 ED., SUPP. III) IS CONSTRUED HAS IMPORTANT
CONSEQUENCES NOT ONLY AS TO THE CRICUMSTANCES UNDER WHICH BACKPAY MAY
BE AWARDED, BUT ALSO AS TO THE METHOD BY WHICH ANY SUCH AWARD IS TO BE
DETERMINED. 

TO THE EXTENT THAT AN AWARD OF BACKPAY WERE TO BE ANALOGIZED TO AN
AWARD OF DAMAGES, SUCH AN AWARD UPON PROPER PROOF WOULD FOLLOW
VIRTUALLY AS A MATTER OF COURSE FROM A FINDING THAT AN EMPLOYER HAD
UNLAWFULLY DISCRIMINATED CONTRARY TO THE PROVISIONS OF TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, 78 STAT. 253, AS AMENDED BY THE EQUAL
EMPLOYMENT OPPORTUNITY ACT OF 1972, 86 STAT. 103, 42 U.S.C. SEC. 2000E
ET SEQ. (1970 ED. AND SUPP. III).  PLAINTIFFS WOULD BE ENTITLED TO THE
BENEFIT OF THE RULE ENUNCIATED IN BIGELOW V. RKO RADIO PICTURES, 327
U.S. 251, 265 (1946): 

     "' THE CONSTANT TENDENCY OF THE COURTS IS TO FIND SOME WAY IN

WHICH DAMAGES CAN BE AWARDED WHERE A WRONG HAS BEEN DONE. 

DIFFICULTY OF ASCERTAINMENT IS NO LONGER CONFUSED WITH RIGHT OF

  RECOVERY' FOR A PROVEN INVASION OF THE PLAINTIFF'S RIGHTS.  STORY

  PARCHMENT CO. V. PATTERSON CO., (282 U.S. 555,) 565." 

BUT PRECISELY TO THE EXTENT THAT AN AWARD OF BACKPAY IS THOUGHT TO
FLOW AS A MATTER OF COURSE FROM A FINDING OF WRONGDOING, AND THEREBY
BECOMES VIRTUALLY INDISTINGUISHABLE FROM AN AWARD FOR DAMAGES, THE
QUESTION (NOT RAISED BY ANY OF THE PARTIES, AND THEREFORE QUITE
PROPERLY NOT DISCUSSED IN THE COURT'S OPINION), OF WHETHER EITHER SIDE
MAY DEMAND A JURY TRIAL UNDER THE SEVENTH AMENDMENT BECOMES CRITICAL. 
WE SAID IN CURTIS V. LOETHER, 415 U.S. 189, 197 (1974) IN EXPLAINING
THE DIFFERENCE BETWEEN THE PROVISION FOR DAMAGES UNDER SEC. 812 OF THE
CIVIL RIGHTS ACT OF 1968, 82 STAT. 88, 42 U.S.C. SEC. 3612, AND THE
AUTHORIZATION FOR THE AWARD OF BACKPAY WHICH WE TREAT HERE: 

" IN TITLE VII CASES, ALSO, THE COURTS HAVE RELIED ON THE FACT THAT
THE DECISION WHETHER TO AWARD BACKPAY IS COMMITTED TO THE DISCRETION OF
THE TRIAL JUDGE.  THERE IS NO COMPARABLE DISCRETION HERE:  IF A
PLAINTIFF PROVES UNLAWFUL DISCRIMINATION AND ACTUAL DAMAGES, HE IS
ENTITLED TO JUDGMENT FOR THAT AMOUNT.... WHATEVER MAY BE THE MERIT OF
THE 'EQUITABLE' CHARACTERIZATION IN TITLE VII CASES, THERE IS SURELY NO
BASIS FOR CHARACTERIZING THE AWARD OF COMPENSATORY AND PUNITIVE DAMAGES
HERE AS EQUITABLE RELIEF."  (FOOTNOTE OMITTED.  

IN CURTIS, SUPRA, THE COURT FURTHER QUOTED THE DESCRIPTION OF THE
SEVENTH AMENDMENT IN MR. JUSTICE STORY'S OPINION FOR THIS COURT IN
PARSONS V. BEDFORD, 3 PET. 433, 447 (1830), TO THE EFFECT THAT: 

" IN A JUST SENSE, THE AMENDMENT THEN MAY WELLL BE CONSTRUED TO
EMBRACE ALL SUITS WHICH ARE NOT OF EQUITY AND ADMIRALTY JURISDICTION,
WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL
RIGHTS." 

TO THE EXTENT, THEN, THAT THE DISTRICT COURT RETAINS SUBSTANTIAL
DISCRETION AS TO WHETHER OR NOT TO AWARD BACKPAY NOTWITHSTANDING A
FINDING OF UNLAWFUL DISCRIMINATION, THE NATURE OF THE JURISDICTION
WHICH THE COURT EXERCISES IS EQUITABLE, AND UNDER OUR CASES NEITHER
PARTY MAY DEMAND A JURY TRIAL.  TO THE EXTENT THAT DISCRETION IS
REPLACED BY AWARDS WHICH FOLLOW AS A MATTER OF COURSE FROM A FINDING OF
WRONGDOING, THE ACTION OF THE COURT IN MAKING SUCH AWARDS COULD NOT BE
FAIRLY CHARACTERIZED AS EQUITABLE IN CHARACTER, AND WOULD QUITE
ARGUABLY BE SUBJECT TO THE PROVISONS OF THE SEVENTH AMENDMENT. 

THUS I BELIEVE THAT THE BROAD LATITUDE WHICH THE COURT'S OPINION
REPOSES IN THE DISTRICT COURTS IN THE DECISION AS TO WHETHER BACKPAY
SHALL BE AWARDED IS NOT ONLY CONSISTENT WITH THE STATUTE, BUT IS
SUPPORTED BY POLICY CONSIDERATIONS WHICH WOULD FAVOR THE MORE
EXPEDITIOUS DISPOSITION WHICH MAY BE MADE OF NUMEROUS CLAIMS ON BEHALF
OF FREQUENTLY LARGE CLASSES BY A COURT SITTING WITHOUT A JURY.  AS THE
COURT STATES, ANTE, AT 419, THE BACKPAY REMEDY PROVIDED BY TITLE VII IS
MODELED ON THE REMEDIAL PROVISIONS OF THE NLRA.  THIS COURT SPOKE TO
THE BREADTH OF THE LATTER PROVISION IN PHELPS DODGE CORP. V. NLRB, 313
U.S. 177, 198 (1941), WHEN IT SAID: 

"(WE MUST AVOID THE RIGIDITIES OF AN EITHER-OR RULE.  THE REMEDY OF
BACK PAY, IT MUST BE REMEMBERED, IS ENTRUSTED TO THE BOARD'S
DISCRETION; IT IS NOT MECHANICALLY COMPELLED BY THE ACT.  AND IN
APPLYING ITS AUTHORITY OVER BACK PAY ORDERS, THE BOARD HAS NOT USED
STEREOTYPED FORMULAS BUT HAS AVAILED ITSELF OF THE FREEDOM GIVEN IT BY
CONGRESS TO ATTAIN JUST RESULTS IN DIVERSE, COMPLICATED SITUATIONS." 

I AGREE, NONETHELESS, WITH THE COURT THAT THE DISTRICT COURT SHOULD
NOT HAVE DENIED BACKPAY IN THIS LITIGATION SIMPLY ON THE GROUND THAT
ALBEMARLE'S BREACH OF TITLE VII HAD NOT BEEN IN "BAD FAITH."  GOOD
FAITH IS A NECESSARY CONDITION FOR OBTAINING EQUITABLE CONSIDERATION,
BUT IN VIEW OF THE NARROWER "GOOD FAITH" DEFENSE CREATED BY STATUTE, 42
U.S.C. SEC. 2000E - 12(B), IT IS NOT FOR THIS COURT TO EXPAND SUCH A
DEFENSE BEYOND THOSE SITUATIONS TO WHICH CONGRESS HAD MADE IT
APPLICABLE.  I DO NOT READ THE COURT'S OPINION TO SAY, HOWEVER, THAT
THE FACTS UPON WHICH THE DISTRICT COURT BASED ITS CONCLUSION, ANTE, AT
422 N. 15, WOULD NOT HAVE SUPPORTED A FINDING THAT THE CONDUCT OF
ALBEMARLE WAS REASONABLE UNDER THE CIRCUMSTANCES AS WELL AS BEING
SIMPLY IN GOOD FAITH.  NOR DO I READ THE COURT'S OPINION TO SAY THAT
SUCH A COMBINATION OF FACTORS MIGHT NOT, IN APPROPRIATE CIRCUMSTANCES,
BE AN ADEQUATE BASIS FOR DENIAL OF BACKPAY.  SEE SCHAEFFER V. SAN DIEGO
YELLOW CABS, INC., 462 F.2D 1002, 1006 (CA9 1972); UNITED STATES V.
GEORGIA POWER CO., 474 F.2D 906, 922 (CA5 1973). 

A CURSORY CANVASS OF THE DECISIONS OF THE DISTRICT COURTS AND COURTS
OF APPEALS WHICH CONFRONT THESE PROBLEMS MUCH MORE OFTEN THAN WE DO
SUGGESTS THAT THE MOST FREQUENTLY RECURRING PROBLEM IN THIS AREA IS THE
DIFFICULTY OF ASCERTAINING A SUFFICIENT CAUSAL CONNECTION BETWEEN THE
EMPLOYER'S CONDUCT PROPERLY FOUND TO HAVE BEEN IN VIOLATION OF THE
STATUTE AND AN ASCERTAINABLE AMOUNT OF BACKPAY LOST BY A PARTICULAR
CLAIMANT AS A RESULT OF THAT CONDUCT.  UNITED STATES V. ST. LOUIS
S.F.R. CO., 464 F.2D 301, 311 (CA8 1972), CERT. DENIED, 409 U.S. 1116
(1973).  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT APTLY DESCRIBED
THE DIFFICULTY OF FASHIONING AN AWARD OF BACKPAY IN THE CIRCUMSTANCES
BEFORE IT, AND UPHELD THE DISTRICT COURT'S REFUSAL TO AWARD BACKPAY, IN
NORMAN V. MISSOURI P.R. CO., 497 F.2D 594, 597 (1974), CERT. DENIED,
420 U.S. 908 (1975): 

" NO STANDARD COULD DETERMINE THE RIGHT TO BACK PAY ITSELF NOR THE
DATE FROM WHICH TO COMPUTE ANY RIGHT TO BACK PAY.  COURTS THAT HAVE
FOUND BACK PAY AWARDS TO BE APPROPRIATE REMEDIES IN TITLE VII ACTIONS
HAVE GENERALLY RECOGNIZED THAT SUCH AWARDS SHOULD BE LIMITED TO ACTUAL
DAMAGES...." 

AS THE COURT RECOGNIZES, ANTE, AT 424 - 425, ANOTHER FACTOR
PRESENTED HERE WHICH IS RELEVANT TO THE DISTRICT COURT'S EXERCISE OF
DISCRETION IS THE POSSIBLE DETRIMENTAL RELIANCE OF PETITIONERS ON PRIOR
REPRESENTATIONS OF RESPONDENTS THAT THEY WERE NOT SEEKING CLASSWIDE
BACKPAY.  IN 1966 RESPONDENTS IN REPLYING TO A MOTION FOR SUMMARY
JUDGMENT EXPRESSLY REPRESENTED TO THE DISTRICT COURT THAT THEY HAD NO
INTEREST IN CLASSWIDE BACKPAY: 

     " IT IS IMPORTANT TO UNDERSTAND THE EXACT NATURE OF THE CLASS

  RELIEF BEING SOUGHT BY PLAINTIFFS.  NO MONEY DAMAGES ARE SOUGHT

  FOR ANY MEMBER OF THE CLASS NOT BEFORE THE COURT....

        * * * * * 

     "... (THE MATTER OF SPECIFIC INDIVIDUAL RELIEF FOR OTHER CLASS

  MEMBERS IS NOT BEFORE THIS COURT."  1 APP. 13 - 14. 

FIVE YEARS LATER, RESPONDENTS REVERSED THEIR POSITION AND ASSERTED A
CLAIM FOR CLASSWIDE BACKPAY.  PETITIONERS HAVE ARGUED HERE AND BELOW
THAT THEY REASONABLY RELIED TO THEIR DETRIMENT ON RESPONDENTS'
STATEMENT IN NUMEROUS WAYS INCLUDING AN INTERIM SALE OF THE MILL AT A
PRICE WHICH DID NOT TAKE INTO ACCOUNT THE RUINOUS LIABILITY WITH WHICH
THE NEW OWNERS ARE NOW FACED, FAILURE TO INVESTIGATE AND PREPARE
DEFENSES TO INDIVIDUAL BACKPAY CLAIMS WHICH ARE NOW NINE YEARS OLD, AND
FAILURE TO SPEED RESOLUTION OF THIS LAWSUIT.  474 F.2D 134, 146 N. 16
(CA4 1973).  THIS CONDUCT BY THE RESPONDENTS PRESENTS FACTUAL AND LEGAL
QUESTIONS TO BE RESOLVED IN THE FIRST INSTANCE BY THE DISTRICT COURT,
REVIEWABLE ONLY ON WHETHER IT FACTUAL FINDINGS ARE "CLEARLY ERRONEOUS"
AND WHETHER ITS ULTIMATE CONCLUSION IS AN "ABUSE OF DISCRETION" UNDER
ALL THE CIRCUMSTANCES OF THIS CASE.  ANTE, AT 424 - 425.  IN THE SAME
MANNER THAT THE GOOD FAITH OF AN EMPLOYER MAY NOT BE VIEWED IN
ISOLATION AS PRECLUDING BACKPAY UNDER ANY AND ALL CIRCUMSTANCES, THE
EXCUSABLE NATURE OF RESPONDENTS' CONDUCT, IF FOUND EXCUSABLE, WILL NOT
NECESSARILY PRECLUDE DENIAL OF A BACKPAY AWARD IF PETITIONERS ARE FOUND
TO HAVE SUBSTANTIALLY AND JUSTIFIABLY RELIED ON RESPONDENTS' PRIOR
REPRESENTATIONS.     IF THE AWARD OF BACKPAY IS INDEED GOVERNED BY
EQUITABLE CONSIDERATIONS, AND NOT SIMPLY A THINLY DISGUISED FORM OF
DAMAGES, FACTORS SUCH AS THESE AND OTHERS, WHICH MAY ARGUE IN FAVOR OF
OR AGAINST THE EQUITIES OF EITHER PALINTIFF OR DEFENDANTS, MUST BE OPEN
FOR CONSIDERATION BY THE DISTRICT COURT.  IT, LIKE THE NLRB, MUST AVAIL
ITSELF "OF THE FREEDOM GIVEN IT BY CONGRESS TO ATTAIN JUST RESULTS IN
DIVERSE, COMPLICATED SITUATIONS."  PHELPS DODGE CORP. V. NLRB, 313
U.S., AT 198. 

MR. JUSTICE BLACKMUN, CONCURRING IN THE JUDGMENT. 

I CONCUR IN THE JUDGMENT OF THE COURT, BUT I DO NOT AGREE WITH ALL
THAT IS SAID IN THE COURT'S OPINION. 

THE STATUTORY AUTHORITY FOR MAKING AWARDS OF BACKPAY IN TITLE VII
CASES IS CAST IN LANGUAGE THAT EMPHASIZES FLEXIBILITY AND DISCRETION IN
FASHIONING AN APPROPRIATE REMEDY: 

     " IF THE COURT FINDS THAT THE RESPONDENT HAS INTENTIONALLY

  ENGAGED IN OR IS INTENTIONALLY ENGAGING IN AN UNLAWFUL EMPLOYMENT

  PRACTICE CHARGED IN THE COMPLAINT, THE COURT MAY ENJOIN THE

  RESPONDENT FROM ENGAGING IN SUCH UNLAWFUL EMPLOYMENT PRACTICE,

  AND ORDER SUCH AFFIRMATIVE ACTION AS MAY BE APPROPRIATE, WHICH

  MAY INCLUDE, BUT IS NOT LIMITED TO, REINSTATEMENT OR HIRING OF

  EMPLOYEES, WITH OR WITHOUT BACK PAY .... OR ANY OTHER EQUITABLE

  RELIEF AS THE COURT DEEMS APPROPRIATE."  78 STAT. 261, AS
AMENDED,

  86 STAT. 107, 42 U.S.C. SEC. 2000E - 5(G) (1970 ED., SUPP. III)

  (EMPHASIS ADDED). 

DESPITE THIS STATUTORY EMPHASIS ON DISCRETION, THE COURT OF APPEALS IN
THIS CASE REASONED BY ANALOGY TO NEWMAN V. PIGGIE PARK ENTERPRISES, 390
U.S. 400 (1968), THAT ONCE A VIOLATION OF TITLE VII HAD BEEN
ESTABLISHED, "(BACKPAY) SHOULD ORDINARILY BE AWARDED ... UNLESS SPECIAL
CIRCUMSTANCES WOULD RENDER SUCH AN AWARD UNJUST."  474 F. 2D 134, 142
(CA4 1973).  TODAY THE COURT REJECTS THE "SPECIAL CIRCUMSTANCES" TEST
ADOPTED BY THE COURT OF APPEALS AND HOLDS THAT THE POWER TO AWARD
BACKPAY IS A DISCRETIONARY POWER, THE EXERCISE OF WHICH MUST BE
MEASURED AGAINST "THE PURPOSES WHICH INFORM TITLE VII."  ANTE, AT 415 -
417.  WITH THIS MUCH OF THE COURT'S OPINION I AGREE.  THE COURT GOES ON
TO SUGGEST, HOWEVER, THAT AN EMPLOYER'S GOOD FAITH IS NEVER A
SUFFICIENT REASON FOR REFUSING TO AWARD BACKPAY.  ANTE, AT 422 - 423. 
WITH THIS SUGGESTION I DO NOT AGREE.  INSTEAD, I BELIEVE THAT THE
EMPLOYER'S GOOD FAITH MAY BE A VERY RELEVANT FACTOR FOR A COURT TO
CONSIDER IN EXERCISING ITS DISCRETIONARY POWER TO FASHION AN
APPROPRIATE AFFIRMATIVE ACTION ORDER.  THUS, TO TAKE A NOT UNCOMMON
EXAMPLE, AN EMPLOYER CHARGED WITH SEX DISCRIMINATION MAY DEFEND ON THE
GROUND THAT THE CHALLENGED CONDUCT WAS REQUIRED BY A STATE'S "FEMALE
PROTECTIVE" LABOR STATUTE.  SEE, E. G., KOBER V. WESTINGHOUSE ELECTRIC
CORP., 480 F.2D 240 (CA3 1973); MANNING V. GENERAL MOTORS CORP., 466
F.2D 812 (CA6 1972), CERT. DENIED, 410 U.S. 946 (1973); SCHAEFFER V.
SAN DIEGO YELLOW CABS, INC., 462 F.2D 1002 (CA9 1972); LE BLANC V.
SOUTHERN BELL TELEPHONE & TELEGRAPH CO., 460 F.2D 1228 (CA5), CERT.
DENIED, 409 U.S. 990 (1972).  IN SUCH A CASE, THE EMPLOYER MAY BE
THRUST ONTO THE HORNS OF A DILEMMA:  EITHER HE MUST VIOLATE TITLE VII
OR HE MUST VIOLATE A PRESUMPTIVELY VALID STATE LAW.  EVEN THOUGH GOOD
FAITH RELIANCE ON THE STATE STATUTE MAY NOT EXONERATE AN EMPLOYER FROM
A FINDING THAT HE HAS INTENTIONALLY VIOLATED TITLE VII, SEE, E. G.,
KOBER V. WESTINGHOUSE ELECTRIC CORP., SUPRA, COMPARE, ANTE, AT 423 NN.
17 - 18, SURELY THE EMPLOYER'S GOOD-FAITH EFFORT TO COMPLY WITH TITLE
VII TO THE EXTENT POSSIBLE UNDER STATE LAW IS A RELEVANT CONSIDERATION
IN CONSIDERING WHETHER TO AWARD BACKPAY.  ALTHOUGH BACKPAY IN SUCH A
CASE WOULD SERVE THE STATUTORY PURPOSE OF MAKING THE DISCRIMINATEE
WHOLE, IT WOULD DO SO AT THE EXPENSE OF AN EMPLOYER WHO HAD NO
ALTERNATIVE UNDER STATE LAW AND WHO DERIVED NO ECONOMIC BENEFIT FROM
THE CHALLENGED CONDUCT. 

I ALSO AGREE WITH THE DECISION OF THE COURT TO VACATE THE JUDGMENT
OF THE COURT OF APPEALS INSOFAR AS IT APPEARED TO REQUIRE AN INJUNCTION
AGAINST ALL TESTING BY ALBEMARLE.  I CANNOT JOIN, HOWEVER, IN THE
COURT'S APPARENT VIEW THAT ABSOLUTE COMPLIANCE WITH THE EEOC GUIDELINES
IS A SINE QUA NON OF PRE-EMPLOYMENT TEST VALIDATION.  THE GUIDELINES,
OF COURSE, DESERVE THAT DEFERENCE NORMALLY DUE AGENCY STATEMENTS BASED
ON AGENCY EXPERIENCE AND EXPERTISE.  NEVERTHELESS, THE GUIDELINES IN
QUESTION HAVE NEVER BEEN SUBJECTED TO THE TEST OF ADVERSARY COMMENT. 
NOR ARE THE THEORIES ON WHICH THE GUIDELINES ARE BASED BEYOND DISPUTE. 
THE SIMPLE TRUTH IS THAT PRE-EMPLOYMENT TESTS, LIKE MOST ATTEMPTS TO
PREDICT THE FUTURE, WILL NEVER BE COMPLETELY ACCURATE.  WE SSOULD BEAR
IN MIND THAT PRE-EMPLOYMENT TESTING, SO LONG AS IT IS FAIRLY RELATED TO
THE JOB SKILLS OR WORK CHARACTERISTICS DESIRED, POSSESSES THE POTENTIAL
OF BEING AN EFFECTIVE WEAPON IN PROTECTING EQUAL EMPLOYMENT OPPORTUNITY
BECAUSE IT HAS A UNIQUE CAPACITY TO MEASURE ALL APPLICANTS OBJECTIVELY
ON A STANDARDIZED BASIS.  I FEAR THAT A TOO-RIGID APPLICATION OF THE
EEOC GUIDELINES WILL LEAVE THE EMPLOYER LITTLE CHOICE, SAVE AN
IMPOSSIBLY EXPENSIVE AND COMPLEX VALIDATION STUDY, BUT TO ENGAGE IN A
SUBJECTIVE QUOTA SYSTEM OF EMPLOYMENT SELECTION.  THIS, OF COURSE, IS
FAR FROM THE INTENT OF TITLE VII. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN PART AND DISSENTING IN
PART. 

I AGREE WITH THE COURT'S OPINION INSOFAR AS IT HOLDS THAT THE
AVAILABILITY OF BACKPAY IS A MATTER WHICH TITLE VII COMMITS TO THE
SOUND EQUITABLE DISCRETION OF THE TRIAL COURT.  I CANNOT AGREE WITH THE
COURT'S APPLICATION OF THAT PRINCIPLE IN THIS CASE, OR WITH ITS METHOD
OF REVIEWING THE DISTRICT COURT'S FINDINGS REGARDING ALBEMARLE'S
TESTING POLICY. 

WITH RESPECT TO THE BACKPAY ISSUE, IT MUST BE EMPHASIZED THAT
ALBEMARLE WAS NOT HELD LIABLE FOR PRACTICING OVERT RACIAL
DISCRIMINATION.  IT IS UNDISPUTED THAT IT VOLUNTARILY DISCONTINUED SUCH
PRACTICES PRIOR TO THE EFFECTIVE DATE OF TITLE VII AND THAT THE STATUTE
DOES NOT --, AND COULD NOT--APLLY TO ACTS OCCURRING BEFORE ITS
PASSAGE.  THE BASIS OF ALBEMARLEHS LIABILITY WAS THAT ITS SENIORITY
SYSTEM PERPETUATED THE EFFECTS OF PAST DISCRIMINATION AND, AS THE
DISTRICT COURT POINTED OUT, THE LAW REGARDING AN EMPLOYER'S OBLIGATION
TO CURE SUCH EFFECTS WAS UNCLEAR FOR A CONSIDERABLE PERIOD OF TIME. 
MOREOVER, THE DISTRICT COURT'S FINDING THAT ALBEMARLE DID NOT ACT IN
BAD FAITH WAS NOT SIMPLY A DETERMINATION THAT IT THOUGHT ITS SENIORITY
SYSTEM WAS LEGAL BUT, RATHER, A FINDING THAT BOTH PRIOR TO AND AFTER
THE FILING OF THIS LAWSUIT IT TOOK STEPS TO INTEGRATE MINORITIES INTO
ITS LABOR FORCE AND TO PROMPTLY FULFILL ITS OBLIGATIONS UNDER THE LAW
AS IT DEVELOPED.  /1/ 

IN LIGHT OF THIS BACKGROUND, THE COURT'S SUGGESTION THAT THE
DISTRICT COURT "CONDITIONED" AWARDS OF BACKPAY UPON A SHOWING OF BAD
FAITH, ANTE, AT 423, IS INCORRECT.  MOREOVER, THE DISTRICT COURT'S
FINDINGS ON THIS POINT CANNOT BE DISREGARDED AS IRRELEVANT.  AS THE
COURT'S OPINION NOTES, ONE OF CONGRESS' MAJOR PURPOSES IN GIVING
DISTRICT COURTS DISCRETION TO AWARD BACKPAY IN TITLE VII ACTIONS WAS TO
ENCOURAGE EMPLOYERS AND UNIONS "'TO SELF-EXAMINE AND TO SELF-EVALUATE
THEIR EMPLOYMENT PRACTICES AND TO ENDEAVOR ELIMINATE, SO FAR AS
POSSIBLE, THE LAST VESTIGES OF AN UNFORTUNATE AND IGNOMINIOUS PAGE IN
THIS COUNTRY'S HISTORY.'"  ANTE, AT 418.  BY THE SAME TOKEN, IF
EMPLOYERS ARE TO BE ASSESSED BACKPAY EVEN WHERE THEY HAVE ATTEMPTED IN
GOOD FAITH TO CONFORM TO THE LAW,THEY WILL HAVE LITTLE INCENTIVE TO
ELIMINATE MARGINAL PRACTICES UNTIL BOUND BY A COURT JUDGMENT.  PLAINLY,
THEN, THE DISTRICT COURT'S FINDINGS RELATE TO "REASONS WHICH, IF
APPLIED GENERALLY, WOULD NOT FRUSTRATE THE CENTRAL STATUTORY
PURPOSES...."  ANTE, AT 421.  BECAUSE RESPONDENTS WAITED FIVE YEARS
BEFORE CHANGING THEIR ORIGINAL POSITION DISCLAIMING BACKPAY AND
BELATEDLY SEEKING IT, THUS SUGGESTING THAT A DESIRE TO BE "MADE WHOLE"
WAS NOT A MAJOR REASON FOR THEIR PURSUIT OF THIS LITIGATION, I CANNOT
SAY THAT THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING THAT
REMEDY.  /2/ 

THE COURT'S TREATMENT OF THE TESTING ISSUE IS EQUALLY TROUBLING. 
ITS ENTIRE ANALYSIS IS BASED UPON A WOODEN APPLICATION OF EEOC
GUIDELINES WHICH, IT SAYS, ARE ENTITLED TO "GREAT DEFERENCE" AS AN
ADMINISTRATIVE INTERPRETATION OF TITLE VII UNDER GRIGGS V. DUKE POWER
CO., 401 U.S. 424 (1971).  THE COURT'S RELIANCE UPON GRIGGS IS
MISPLACED.  THERE WE WERE DEALING WITH GUIDELINES WHICH STATE THAT A
TEST MUST BE DEMONSTRATED TO BE JOB RELATED BEFORE IT CAN QUALIFY FOR
THE EXEMPTION CONTAINED IN SEC. 706(H) OF TITLE VII, 78 STAT. 257, 42
U.S.C. SEC. 2000E - 2(H), AS A DEVICE NOT "DESIGNED, INTENDED OR USED
TO DISCRIMINATE ...."  BECAUSE THIS INTERPRETATION OF SPECIFIC
STATUTORY LANGUAGE WAS SUPPORTED BY BOTH THE ACT AND ITS LEGISLATIVE
HISTORY, WE OBSERVED THAT THERE WAS "GOOD REASON TO TREAT THE
GUIDELINES AS EXPRESSING THE WILL OF CONGRESS."  401 U.S., AT 434.  SEE
ALSO ESPINOZA V. FARAH MFG. CO., 414 U.S. 86, 93 - 95 (1973). 

IN CONTRAST, THE GUIDELINES UPON WHICH THE COURT NOW RELIES RELATE
TO METHODS FOR PROVING JOB RELATEDNESS; THEY INTERPRET NO SECTION OF
TITLE VII AND ARE NOWHERE REFERRED TO IN ITS LEGISLATIVE HISTORY. 
MOREOVER, THEY ARE NOT FEDERAL REGULATIONS WHICH HAVE BEEN SUBMITTED TO
PUBLIC COMMENT AND SCRUTINY AS REQUIRED BY THE ADMINISTRATIVE PROCEDURE
ACT.  /3/ THUS, SLAVISH ADHERENCE TO THE EEOC GUIDELINES REGARDING TEST
VALIDATION SHOULD NOT BE REQUIRED; THOSE PROVISIONS ARE, AS THEIR TITLE
SUGGESTS, GUIDES ENTITLED TO THE SAME WEIGHT AS OTHER WELL-FOUNDED
TESTIMONY BY EXPERTS IN THE FIELD OF EMPLOYMENT TESTING. 

THE DISTRICT COURT SO CONSIDERED THE GUIDELINES IN THIS CASE AND
RESOLVED ANY CONFLICTS IN FAVOR OF ALBEMARLE'S EXPERTS.  FOR EXAMPLE,
WITH RESPECT TO THE QUESTION WHETHER VALIDATING TESTS FOR PERSONS AT OR
NEAR THE TOP OF A LINE OF PROGRESSION "IS A PERMISSIBLE MEASURE OF THE
MINIMAL QUALIFICATIONS OF NEW WORKERS," ANTE, AT 434, THE DISTRICT
COURT FOUND: 

" THE GROUP TESTED WAS TYPICAL OF EMPLOYEES IN THE SKILLED LINES OF
PROGRESSION.  THEY WERE SELECTED FROM THE TOP AND MIDDLE OF VARIOUS
LINES.  PROFESSIONAL STUDIES HAVE SHOWN THAT WHEN TESTS ARE VALIDATED
IN SUCH A NARROW RANGE OF COMPETENCE, THERE IS A GREATER CHANCE THAT
THE TEST WILL VALIDATE EVEN A BROADER RANGE, THAT IS, IF JOB CANDIDATES
AS WELL AS PRESENT EMPLOYEES ARE TESTED."  2 APP. 490 - 491.  UNLESS
THIS COURT IS PREPARED TO HOLD THAT THIS AND SIMILAR FACTUAL FINDINGS
ARE CLEARLY ERRONEOUS, THE DISTRICT COURT'S CONCLUSION THAT ALBEMARLE
HAD SUSTAINED ITS BURDEN OF SHOWING THAT ITS TESTS WERE JOB RELATED IS
ENTITLED TO AFFIRMANCE, IF WE FOLLOW TRADITIONAL STANDARDS OF REVIEW. 
AT THE VERY LEAST, THE CASE SHOULD BE REMANDED TO THE COURT OF APPEALS
WITH INSTRUCTIONS THAT IT RECONSIDER THE TESTING ISSUE, GIVING THE
DISTRICT COURT'S FINDINGS OF FACT THE DEFERENCE TO WHICH THEY ARE
ENTITLED. 

/1/ THE DISTRICT COURT CONCLUDED THAT ALBEMARLE WAS ENTIRELY
JUSTIFIED IN MAINTAINING SOME TYPE OF SENIORITY SYSTEM WHICH INSURED
THAT ITS EMPLOYEES WOULD HAVE "A CERTAIN DEGREE OF TRAINING AND
EXPERIENCE."  ITS FINDINGS REGARDING THE ABSENCE OF BAD FAITH WERE AS
FOLLOWS: 

" IT APPEARS THAT THE COMPANY AS EARLY AS 1964 BEGAN ACTIVE
RECRUITMENT OF BLACKS FOR ITS MAINTENANCE APPRENTICE PROGRAM.  CERTAIN
LINES OF PROGRESSION WERE MERGED ON ITS OWN INITIATIVE, AND AS JUDICIAL
DECISIONS EXPANDED THE THEN EXISTING INTERPRETATIONS OF THE ACT, THE
DEFENDANT TOOK STEPS TO CORRECT THE ABUSES WITHOUT DELAY."  2 APP.
498. 

/2/ AS THE COURT POINTS OUT, ANTE, AT 424 N. 20, THE DISTRICT
COURT'S REASONS FOR DENYING BACKPAY WERE CUMULATIVE.  IT DID NOT FAVOR
ONE POLICY OF TITLE VII TO THE EXCLUSION OF ALL OTHERS, AS I FEAR THIS
COURT IS NOW DOING. 

/3/ SUCH COMMENT WOULD NOT BE A MERE FORMALITY IN LIGHT OF THE FACT
THAT MANY OF THE EEOC GUIDELINES ARE NOT UNIVERSALLY ACCEPTED.  FOR
EXAMPLE, THE GUIDELINE RELATING TO "DIFFERENTIAL VALIDATION," UPON
WHICH THE COURT RELIES IN THIS CASE, ANTE, AT 435, HAS BEEN QUESTIONED
BY THE AMERICAN PSYCHOLOGICAL ASSOCIATION.  SEE UNITED STATES V.
GEORGIA POWER CO., 474 F.2D 906, 914 N. 8 (CA5 1973). 

FRANCIS V. LOWDEN, JR., ARGUED THE CAUSE FOR PETITIONERS IN NO. 74 -
389.  WITH HIM ON THE BRIEFS WERE GORDON G. BUSDICKER, CHARLES
O'CONNELL, CHARLES F. BLANCHARD, AND JULIAN R. ALLSBROOK, JR.  WARREN
WOODS ARGUED THE CAUSE FOR PETITIONER IN NO. 74 - 428.  WITH HIM ON THE
BRIEF WAS LEONARD APPEL. 

J. LE VONNE CHAMBERS ARGUED THE CAUSE FOR RESPONDENTS IN BOTH
CASES.  WITH HIM ON THE BRIEF WERE JACK GREENBERG, JAMES M. NABRIT III,
CHARLES STEPHEN RALSTON, ERIC SCHNAPPER, MORRIS J. BALLER, BARRY L.
GOLDSTEIN, ROBERT BELTON, CONRAD O. PEARSON, T.T. CALYTON, ALBERT J.
ROSENTHAL, AND LOUIS H. POLLAK. 

JAMES P. TURNER ARGUED THE CAUSE FOR THE UNITED STATES ET AL. AS
AMICI CURIAE URGING AFFIRMANCE IN BOTH CASES.  ON THE BRIEF WERE
SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL POTTINGER, MARK L.
EVANS, BRIAN K. LANDSBERG, DAVID L. ROSE, JOHN C. HOYLE, JULIA C.
COOPER, JOSEPH T. EDDINS, AND BEATRICE ROSENBERG. 

BRIEFS OF AMICI CURIAE IN BOTH CASES WERE FILED BY GERARD C.
SMETANA, JERRY KRONENBERG, MILTON A. SMITH, AND RICHARD B. BERMAN FOR
THE CHAMBER OF COMMERCE OF THE UNITED STATES; BY J. HAROLD FLANNERY,
PAUL R. DIMOND, WILLIAM E. CALDWELL, ROBERT B. WALLACE, WILLIAM H.
BROWN III, LLOYD N. CUTLER, AND ERWIN N. GRISWOLD FOR THE LAWYERS'
COMMITTEE FOR CIVIL RIGHTS UNDER LAW; AND BY THE AMERICAN SOCIETY FOR
PERSONNEL ADMINISTRATION.  JOHN VANDERSTAR FILED A BRIEF FOR SCOTT
PAPER CO. AS AMICUS CURIAE IN NO. 74 - 389. 
..END :











MUNIZ V. HOFFMAN, 422 U.S. 454 


       MUNIZ ET AL. V. HOFFMAN, REGIONAL DIRECTOR, NATIONAL LABOR

           RELATIONS BOARD

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

        NO. 73 - 1924.  ARGUED MARCH 24, 1975 - DECIDED JUNE 25,

           1975; 492 F.2D, AFFIRMED. 


AFTER THEIR REQUEST FOR A JURY TRIAL WAS DENIED, PETITIONERS, A LABOR
UNION OFFICER AND THE UNION, WERE ADJUDGED GUILTY OF CRIMINAL CONTEMPT
FOR VIOLATING TEMPORARY INJUCTIONS ISSUED BY THE DISTRICT COURT
PURSUANT TO SEC. 10(L) OF THE NATIONAL LABOR RELATIONS ACT (NLRA)
AGAINST PICLETING OF AN EMPLOYER PENDING THE NATIONAL LABOR RELATIONS
BOARD'S FINAL DISPOSITION OF THE EMPLOYER'S UNFAIR LABOR PRACTICE
CHARGE AGAINST SUCH PICKETING.  THE DISTRICT COURT SUSPENDED SENTENCING
OF THE OFFICER AND PLACED HIM ON PROBATION, BUT IMPOSED A $10,000 FINE
ON THE UNION.  ON APPEAL THE COURT OF APPEALS REJECTED PETITIONERS'
CLAIMS THAT THEY HAD A STATUTORY RIGHT TO A JURY TRIAL UNDER 18 U.S.C.
SEC. 3692, WHICH PROVIDES FOR JURY TRIAL IN CONTEMPT CASES ARISING
UNDER ANY FEDERAL LAW GOVERNING THE ISSUANCE OF INJUNCTIONS "IN ANY
CASE" GROWING OUT OF A LABOR DISPUTE, AND THAT THEY ALSO HAD A RIGHT TO
A JURY TRIAL UNDER THE CONSTITUTION (THE LATTER QUESTION BEING LIMITED
IN THIS COURT TO WHETHER THE UNION HAD SUCH A CONSTITUTIONAL RIGHT). 
HELD: 

1.  PETITIONERS ARE NOT ENTITLED TO A JURY TRIAL UNDER 18 U.S.C.
SEC. 3692.  PP. 458 - 474. 

(A) IT IS CLEAR FROM SEC. 10(L) OF THE NLRA, AS ADDED BY THE LABOR
MANAGEMENT RELATIONS ACT (LMRA), AND RELATED SECTIONS, PARTICULARLY
SEC. 10(H) (WHICH PROVIDES THAT THE COURTS' JURISDICTION TO GRANT
TEMPORARY INJUNCTIVE RELIEF OR TO ENFORCE OR SET ASIDE AN NLRB UNFAIR
PRACTICE ORDER SHALL NOT BE LIMITED BY THE NORRIS-LA GUARDIA ACT), AND
FROM THE LEGISLATIVE HISTORY OF SUCH SECTIONS, THAT CONGRESS NOT ONLY
INTENDED TO EXEMPT INJUNCTIONS AUTHORIZED BY THE NLRA AND LMRA FROM THE
NORRIS-LA GUARDIA ACT'S LIMITATIONS, INCLUDING ORIGINAL SEC. 11 OF THE
ACT (NOW REPEALED) REQUIRING JURY TRIALS IN CONTEMPT ACTIONS ARISING
OUT OF THAT ACT, BUT ALSO INTENDED THAT CIVIL AND CRIMINAL CONTEMPT
PROCEEDINGS ENFORCING THOSE INJUNCTIONS WERE NOT TO AFFORD CONTEMNORS
THE RIGHT TO A JURY TRIAL.  BY PROVIDING FOR LABOR ACT INJUNCTIONS
OUTSIDE THE NORRIS-LA GUARDIA ACT'S FRAMEWORK, CONGRESS NECESSARILY
CONTEMPLATED THAT THERE WOULD BE NO RIGHT TO A JURY TRIAL IN SUCH
CONTEMPT PROCCEDINGS.  PP. 458 - 467. 

(B) ABSENT AN EXPRESS PROVISION OR ANY INDICATION IN THE REVISER'S
NOTE TO 18 U.S.C. SEC. 3692 THAT A SUBSTANTIVE CHANGE IN THE LAW WAS
CONTEMPLATED, NO INTENTION ON CONGRESS' PART TO CHANGE ITS ORIGINAL
INTENTION THAT THERE BE NO JURY TRIALS IN CONTEMPT PROCEEDINGS ARISING
OUT OF NLRA INJUNCTIONS, IS SHOWN BY THE FACT THAT SEC. 11 OF THE
NORRIS-LA GUARDIA ACT WAS REPEALED AND REPLACED BY SEC. 3692 AS PART OF
THE 1948 REVISION OF THE CRIMINAL CODE.  JUST AS SEC. 3692 MAY NOT BE
READ APART FROM OTHER RELEVANT PROVISIONS OF THE LABOR LAW, THAT
AND THE REVISION PROCESS FROM WHICH IT EMERGED, ALL OF WHICH PLACE
DEFINITE LIMITATIONS ON THIS COURT'S LATITUDE IN CONSTRUING IT.  PP.
467 - 474. 

2.  NOR DOES PETITIONER UNION HAVE A RIGHT TO A JURY TRIAL UNDER
ART. III, SEC. 2, OF THE CONSTITUTION, AND THE SIXTH AMENDMENT. 
DESPITE 18 U.S.C. SEC. 1(3), WHICH DEFINES PETTY OFFENSES AS THOSE
CRIMES "THE PENEALTY FOR WHICH DOES NOT EXCEED IMPRISONMENT FOR A
PERIOD OF SIX MONTHS OR A FINE OF NOT MORE THAN $500, OR BOTH," A
CONTEMPT NEED NOT BE CONSIDERED A SERIOUS CRIME UNDER ALL CIRCUNSTANCES
WHERE THE PUNISHMENT IS A FINE OF MORE THAN $500, UNACCOMPANIED BY
IMPRISONMNET.  HERE, WHERE IT APPEARS THAT PETITIONER UNION COLLECTS
DUES FROM SOME 13,000 PERSON, THE $10,000 FINE IMPOSED WAS NOT OF SUCH
MAGNITUDE THAT THE UNION WAS DEPRIVED OF WHATEVER RIGHT TO A JURY TRIAL
IT MIGHT HAVE UNDER THE SIXTH AMENDMENT.  PP. 475 - 477. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, BLACKMUN, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, POST, P. 478.  STEWART, FILED A DISSENTING
OPINION, IN WHICH MARSHALL AND POWELL, JJ., JOINED, POST, P. 481. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE ISSUES IN THIS CASE ARE WHETHER A LABOR UNION OR AN INDIVIDUAL,
WHEN CHARGED WITH CRIMINAL CONTEMPT FOR VIOLATING AN INJUNCTION ISSUED
PURSUANT TO SEC. 10(L) OF THE LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C.
SEC. 160 (L), HAS A RIGHT TO A JURY TRIAL UNDER 18 U.S.C. SEC. 3692,
AND WHETHER THE UNION HAS A RIGHT TO A JURY TRIAL UNDER THE
CONSTITUTION WHEN CHARGED WITH SUCH A VIOLATION AND A FINE OF AS MUCH
AS $10,000 IS TO BE IMPOSED. 

        I 

EARLY IN 1970, LOCAL 21 OF THE SAN FRANCISCO TYPOGRAPHICAL UNION
COMMENCED PICKETING A PUBLISHING PLANT OF A DAILY NEWSPAPER IN SAN
RAFAEL, CAL.  SHORTLY THEREAFTER, THE NEWSPAPER FILED AN UNFAIR LABOR
PRACTICE CHARGE AGAINST THIS UNION ACTIVITY, AND THE REGIONAL DIRECTOR
OF THE NATIONAL LABOR RELATIONS BOARD, IN RESPONSE TO THAT FILING,
PETITIONED THE DISTRICT COURT PURSUANT TO SEC. 10 (L) FOR A TEMPORARY
INJUNCTION AGAINST THOSE ACTIVITIES PENDING FINAL DISPOSITION OF THE
CHARGE BY THE BOARD.  THE DISTRICT COURT, AFTER A HEARING, GRANTED THE
REQUESTED RELIEF AND, MORE THAN TWO MONTHS LATER, GRANTED A SECOND
PETITION FOR A TEMPORARY INJUNCTION FILED BY THE REGIONAL DIRECTOR IN
RESPONSE TO OTHER UNION ACTIVITIES RELATED TO THE ORIGINAL DISPUTE.  ON
JUNE 24, 1970, LOCAL 21 AND CERTAIN OF ITS OFFICIALS WERE FOUND TO BE
IN CIVIL CONTEMPT ORDER, THE TEMPO OF ILLEGAL ACTIVITIES IN VIOLATION
OF BOTH INJUNCTIONS INCREASED, WITH OTHER LOCALS, INCLUDING LOCAL 70,
PARTICIPATING.  VARIOUS UNIONS AND THEIR OFFICERS, INCLUDING
PETITIONERS, WERE SUBSEQUENTLY ORDERED TO SHOW CAUSE WHY THEY SHOULD
NOT BE HELD IN CIVIL AND CRIMINAL CONTEMPT OF THE INJUNCTIONS.  AFTER
PROCEEDINGS IN THE CRIMINAL CONTEMPT CASE HAD BEEN SEVERED FROM THE
CIVIL IN THE CRIMINAL CASE; THIS REQUEST WAS DENIED AND PETITIONERS
WERE ADJUDGED GUILTY OF CRIMINAL CONTEMPT AFTER APPROPRIATE
PROCEEDINGS.  THE DISTRICT COURT SUSPENDED THE SENTENCING OF PETITIONER
MUNIZ AND PLACED HIM ON PROBATION FOR ONE YEAR; THE COURT IMPOSED A
FINE ON PETITIONER LOCAL 70 WHICH, FOR PURPOSES OF THIS CASE, WAS
$10,000.  /1/ ON APPEAL OF THAT JUDGMENT TO THE COURT OF APPEALS,
PETITIONERS ARGUED, INTER ALIA, THAT THEY HAD A STATUTORY RIGHT TO A
JURY TRIAL OF ANY DISPUTED ISSUES OF FACT, RELYING ON 18 U.S.C. SEC.
3692; /2/ PETITIONERS ALSO ARGUED THAT THEY HAD A RIGHT TO A JURY TRIAL
UNDER ART. III, SEC. 2, OF THE CONSTITUTION, AND THE SIXTH AMENDMENT. 
THE COURT OF APPEALS REJECTED THESE AND OTHER CLAIMS MADE BY
PETITIONERS, 492 F.2D 929 (C 1974), WHO THEN PETITIONED THIS COURT FOR
A WRIT OF CERTIORARI.  THE WRIT WAS GRANTED, 419 U.S. 992 (1974),
LIMITED TO THE QUESTIONS WHETHER PETITIONERS HAD A STATUTORY RIGHT TO A
JURY TRIAL AND WHETHER PETITIONER LOCAL 70 HAD A CONSTITUTIONAL RIGHT
TO A JURY TRIAL IN THIS CASE. 

        II 

THE PETITIONERS' CLAIM TO JURY TRIAL UNDER SEC. 3692 IS SIMPLY
STATED:  THAT SECTION PROVIDES FOR JURY TRIAL IN CONTEMPT CASES ARISING
UNDER ANY FEDERAL LAW GOVERNING THE ISSUANCE OF INJUNCTIONS IN ANY CASE
GROWING OUT OF A LABOR DISPUTE; HERE, THE INJUNCTION ISSUED UNDER SEC.
10 (L) AROSE OUT OF A LABOR DISPUTE IN THE MOST CLASSIC SENSE AND HENCE
CONTEMPT PROCEEDINGS WERE SUBJECT TO SEC. 3692'S REQUIREMENT FOR JURY
TRIAL.  WERE WE TO CONSIDER ONLY THE LANGUAGE OF SEC. 3692, WE MIGHT BE
HARD PRESSED TO DISAGREE.  BUT IT IS NOT UNUSUAL THAT EXCEPTIONS TO THE
APPLICABILITY OF A STATUTE'S OTHERWISE ALL-INCLUSIVE LANGUAGE ARE NOT
CONTAINED IN THE ENACTMENT ITSELF BUT ARE FOUND IN ANOTHER STATUTE
DEALING WITH PARTICULAR SITUATIONS TO WHICH THE FIRST STATUTE MIGHT
OTHERWISE APPLY.  /3/ TIDEWATER OIL CO. V. UNITED STATES, 409 U.S. 151
(1972); MAC EVOY CO. V. UNITED STATES EX REL. EOMKINS CO., 322 U.S. 102
(1944).  THE NORRIS-LA GUARDIA ACT, 47 STAT. 70, AS AMENDED, 29 U.S.C.
SEC. 101 ET SEQ., FOR EXAMPLE, CATEGORICALLY WITHDRAWS JURISDICTION
FROM THE UNITED STATES COURTS TO ISSUE ANY INJUNCTIONS AGAINST CERTAIN
CONDUCT ARISING OUT OF LABOR DISPUTES AND PERMITS OTHER INJUNCTIONS IN
LABOR DISPUTES ONLY IF CERTAIN PROCEDURAL FORMALITIES ARE SATISIFIED. 
IT CONTAINS NO EXMEPTIONS WITH RESPECT TO INJUNCTIONS IN THOSE LABOR
DISPUTES DEALT WITH BY THE WAGNER ACT, PASSED IN 1935, OR BY THE TAFT
HARTLEY ACT PASSED IN 1947.  YET THOSE ACTS EXPRESSLY OR IMPLIEDLY,
BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398 U. S. 235 (1970),
AUTNORIZED VARIOUS KINDS OF INJUNCTIONS IN LABOR DISPUTE CASES AND
EXPRESSLY OR IMPLIEDLY EXEMPTED THOSE INJUNCTIONS FROM THE
JURISDICTIONAL AND PROCEDURAL LIMITATIONS OF NORRIS-LA GUARDIA TO THE
EXTENT NECESSARY TO EFFECTUATE THE PROVISIONS OF THOSE ACTS. 

THE CRUCIAL ISSUE IS WHETHER IN ENACTING THE WAGNER AND TAFT-HARTLEY
ACTS, CONGRESS NOT ONLY INTENDED TO EXEMPT THE INJUNCTIONS THEY
AUTHORIZED FROM NORRIS-LA GUARIDIA'S LIMITATIONS, BUT ALSO INTENDED
THAT CIVIL AND CRIMINAL CONTEMPT PROCEEDINGS ENFORCING THOSE
INJUNCTIONS WERE NOT TO AFFORD CONTEMNORS THE RIGHT TO A JURY TRIAL. 
SURELY, IF SEC. 10 (L) OF TAFT-HARTLEY HAD EXPRESSLY PROVIDED THAT
CONTEMPT PROCEEDINGS ARISING FROM THE INJUNCTIONS WHICH THE SECTION
AUTHORIZED WOULD NOT BE SUBJECT TO JURY TRIAL REQUIREMENTS, IT WOULD BE
AS DIFFICULT TO ARGUE THAT SEC. 3692 NEVERTHELESS REQUIRES A JURY TRIAL
AS IT WOULD BE TO INSIST THAT NORRIS-LA GUARDIA BARS THE ISSUANCE OF
ANY INJUNCTIONS IN THE FIRST PLACE.  SECTION 10(L), OF COURSE, DOES NOT
SO PROVIDE; WE THINK IT REASONABLY CLEAR FROM THAT AND RELATED SECTIONS
AND FROM THEIR LEGISLATIVE HISTORY THAT THIS RESULT IS PRECISELY WHAT
CONGRESS INTENDED. 

THE WAGNER ACT MADE EMPLOYERS SUBJECT TO COURT ORDERS ENFORCING
BOARD CEASE-AND-DESIST ORDERS.  THOSE ORDERS, OR MANY OF THEM, WERE OF
THE KIND NORRIS-LA GUARDIA, ON ITS FACE, PROHIBITED; BUT SEC. 10(H) OF
THE WAGNER ACT PROVIDED THAT IN "GRANTING APPROPRIATE TEMPORARY RELIEF
OR A RESTRAINING ORDER, OR ... ENFORCING ... OR SETTING ASIDE ... AN
ORDER OF THE BOARD,... THE JURISDICTION OF COURTS SITTING EQUITY SHALL
NOT BE LIMITED BY" 29 U.S.C. SEC. 101 - 115.  IN 1947, IN PASSING THE
TAFT-HARTLEY ACT AS PART OF THE LABOR MANAGEMENT RELATIONS ACT,
CONGRESS PROVIDED FOR UNFAIR LABOR PRACTICE PROCEEDINGS AGAINST UNIONS;
AND SEC. 10 (J) GAVE JURISDICTION TO THE COURTS TO ISSUE INJUNCTIONS IN
UNFAIR LABOR PRACTICE PROCEEDINGS, WHETHER AGAINST UNIONS OR
MANAGEMENT, PENDING FINAL DISPOSITION BY THE BOARD.  SECTION 10 (L)
MADE SPECIAL PROVISION FOR INTERIM INJUNCTIONS "NOTWITHSTANDING ANY
OTHER PROVISION OF LAW" IN PARTICULAR KINDS OF UNFAIR LABOR PRACTICE
PROCEEDINGS AGAINST UNIONS.  SECTION 10 (H) WAS RETAINED IN ITS
ORIGINAL FORM. 

NO PARTY IN THIS CASE SUGGESTS THAT THE INJUNCTIONS AUTHORIZED BY
CONGRESS IN 1935 AND 1947 WERE SUBJECT TO THE JURISDICTIONAL AND
PROCEDURAL LIMITATIONS OF NORRIS-LA GUARDIA.  NEITHER CAN IT BE
SERIOUSLY ARGUED THAT, AT THE TIME OF ENACTMENT OF THE WAGNER AND TAFT
HARTLEY ACTS, CIVIL OR CRIMINAL CONTEMPT CHARGES ARISING FROM
VIOLATIONS OF INJUNCTIONS AUTHORIZED BY THOSE STATUTES WERE TO BE TRIED
TO A JURY.  THE HISTORIC RULE AT THE TIME WAS THAT, ABSENT CONTRARY
PROVISION BY RULE OR STATUTE, JURY TRIAL WAS NOT REQUIRED IN THE CASE
OF EITHER CIVIL OR CRIMINAL CONTEMPT.  SEE GREEN V. UNITED STATES, 356
U.S. 165, 183, 189 (1958).  SECTION 11 OF NORRIS-LA GUARDIA, 29 U.S.C.
SEC. 111 (1946 ED.), /4/ REQUIRED JURY TRIALS IN CONTEMPT ACTIONS
ARISING OUT OF LABOR DISPUTES.  BUT SEC. 11 WAS AMONG THOSE SECTIONS
WHICH SEC. 10 (H) EXPRESSLY PROVIDED WOULD NOT LIMIT THE POWER OF
FEDERAL COURTS TO ENFORCE BOARD ORDERS.  MOREOVER, SEC. 11 WAS LIMITED
BY ITS OWN TERMS AND BY JUDICIAL DECISION TO CASES "ARISING UNDER" THE
NORRIS-LA GUARDIA ACT.  UNITED STATES V. MINE WORKERS, 330 U.S. 258,
298 (1947).  INJUNCTIONS ISSUED PURSUANT TO EITHER THE WAGNER ACT OR
TAFT-HARTLEY ACT WERE NOT ISSUED "UNDER,"  BUT IN SPITE OF NORRIS-LA
GUARDIA; /5/ AND CONTEMPT ACTIONS CHARGING VIOLATIONS OF THOSE
INJUNCTIONS WERE NOT "CASES ARISING UNDER"  NORRIS-LA GUARDIA.  SECTION
11 OF NORRIS-LA GUARDIA WAS THUS ON ITS FACE INAPPLICABLE TO
INJUNCTIONS AUTHORIZED BY THE WAGNER AND TAFT-HARTLEY ACTS; PETITIONERS
DO NOT CONTEND OTHERWISE.  THEY SAY:  "  FROM THE EFFECTIVE DATE OF
TAFT-HARTLEY IN LATE SUMMER, 1947, UNTIL JUNE 28, 1948, THE EFFECTIVE
DATE OF THE NEW SEC. 3692, AN ALLEGED CONTEMNOR OF A TAFT-HARTLEY
INJUNCTION WOULD PROBABLY HAVE BEEN DENIED THE JURY TRIAL GUARANTEED BY
SEC. 11 OF NORRIS-LA GUARDIA, BECAUSE THE INJUNCTION WOULD NOT HAVE
BEEN ONE ARISING UNDER NORRIS-LA GUARDIA ITSELF."  BRIEF FOR
PETITIONERS 41. 

IT WOULD BE DIFFICULT TO CONTEND OTHERWISE.  IT SEEMS BEYOND DOUBT
THAT SINCE 1935 IT HAD BEEN UNDERSTOOD THAT THE INJUNCTIONS AND
ENFORCEMENT ORDERS REFERRED TO IN SEC. 10 (H) WERE NOT SUBJECT TO THE
JURY REQUIREMENTS OF SEC. 11 OF NORRIS-LA GUARDIA.  WHEN CONGRESS
SUBJECTED LABOR UNIONS TO UNFAIR LABOR PRACTICE PROCEEDINGS IN 1947,
AND IN SEC. 10(J) AND 10(L) PROVIDED FOR INTERIM INJUNCTIVE RELIEF FROM
THE COURTS PENDING BOARD DECISION IN UNFAIR LABOR PRACTICE CASES, IT
WAS EQUALLY PLAIN THAT SEC. 11 BY ITS OWN TERMS WOULD NOT APPLY TO
CONTEMPT CASES ARISING OUT OF THESE INJUNCTIONS.  BY PROVIDING FOR
LABOR ACT INJUNCTIONS OUTSIDE THE FRAMEWORK OF NORRIS-LA GUARDIA,
CONGRESS NECESSARILY CONTEMPLATED THAT THERE WOULD BE NO RIGHT TO JURY
TRIAL IN CONTEMPT CASES. 

THAT THIS WAS THE CONGRESSIONAL UNDESTANDING IS REVEALED BY THE
LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT.  /6/ THE
HOUSE CONFERENCE REPORT ON TAFT-HARTLEY STATED: 

     " SECTIONS 10 (G), (H), AND (I) OF THE PRESENT ACT, CONCERNING

  THE EFFECT UPON THE BOARD'S ORDERS OF ENFORCEMENT AND REVIEW

  PROCEEDINGS, MAKING INAPPLICABLE THE PROVISIONS OF THE NORRIS-LA

  GUARDIA ACT IN PROCEEDINGS BEFORE THE COURTS, WERE UNCHANGED

  EITHER BY THE HOUSE BILL OR BY THE SENATE AMENDMENT, AND ARE

 CARRIED INTO THE CONFERENCE AGREEMENT."  H.R. CONF. REP. NO. 510,

  80TH CONG., 1ST SESS., 57 (1947) (EMPHASIS ADDED).  /7/

SUCH ALSO WAS THE UNDERSTANDING OF SENATOR BALL, UNCHALLENGED ON THIS
POINT BY HIS COLLEAGUES ON THE FLOOR OF THE SENATE DURING THE DEBATE ON
TAFT-HARTLEY.  SENATOR BALL STATED: 

"(THE . . . NORRIS-LA GUARDIA ACT IS COMPLETELY SUSPENDED . . . IN
THE CURRENT NATIONAL LABOR RELATIONS ACT WHENEVER THE BOARD GOES INTO
COURT TO OBTAIN AN ENFORCEMENT ORDER FOR ONE OF ITS DECISIONS. 
ORGANIZED LABOR DID NOT OBJECT TO THE SUSPENSION OF THE NORRIS-LA
GUARDIA ACT IN THAT CASE, I SUPPOSE PRESUMABLY BECAUSE UNDER THE
PRESENT ACT THE ONLY ONES TO WHOM IT COULD APPLY ARE EMPLOYERS. 
ORGANIZED LABOR WAS PERFECTLY WILLING TO HAVE THE NORRIS-LA GUARDIA ACT
COMPLETELY WIPED OFF THE BOOKS WHEN IT CAME TO ENFORCING BOARD ORDERS
IN LABOR DISPUTES AGAINST EMPLOYERS."  93 CONG. REC. 4835 (1947).  THIS
STATEMENT WAS MADE IN THE CONTEXT OF SENATOR BALL'S EXPLANATION OF HIS
PROPOSED AMENDMENT TO SEC. 10(L) AS REPORTED OUT OF COMMITTEE.  THAT
CERTAIN CIRCUMSTANCES, TO SEEK INJUNCTIVE RELIEF IN THE FEDERAL COURTS
AGAINST SECONDARY BOYCOTTS AND JURISDICTIONAL STRIKES "NOTWITHSTANDING
ANY OTHER PROVISION OF LAW ...."  SENATOR BALL'S PROPOSED AMENDMENT
WOULD HAVE HAD TWO EFFECTS; FIRST, IT WOULD HAVE PERMITTED PRIVATE
PARTIES, IN ADDITION TO THE BOARD, TO SEEK INJUNCTIVE RELIEF AGAINST
THE IDENTICAL PRACTICES DIRECTLY IN THE DISTRICT COURT; AND, SECOND,
THE AMENDMENT WOULD HAVE LEFT IN EFFECT FOR SUCH PROCEEDINGS THE
PROVISIONS OF SEC. 11 AND 12 OF THE NORRIS-LA GUARDIA ACT, GIVING
DEFENDANTS IN SUCH PROCEEDINGS THE RIGHT TO A JURY TRIAL.  AS SENATOR
BALL STATED: 

"(WHEN THE REGIONAL ATTORNEY OF THE NLRB SEEKS AN INJUNCTION
(PURSUANT TO SEC. 10(L) AS REPORTED) THE NORRIS-LA GUARDIA ACT IS
COMPLETELY SUSPENDED ...., WE DO NOT GO QUITE THAT FAR IN OUR
AMENDMENT.  WE SIMPLY PROVIDE THAT THE NORRIS-LA GUARDIA ACT SHALL NOT
APPLY, WITH CERTAIN EXCEPTIONS.  WE LEAVE IN EFFECT THE PROVISIONS OF
CHARGED WITH CONTEMPT OF COURT THE RIGHT TO A JURY TRIAL."  63 CONG.
REC. 4834 (1947).  THE BALL AMENDMENT WAS DEFEATED, AND PRIVATE
INJUNCTIVE ACTIONS WERE NOT AUTHORIZED.  BUT THE PROVISIONS FOR BOARD
INJUNCTIONS WERE NOT AUTHORIZED.  BUT THE PROVISIONS FOR BOARD
INJUNCTIONS WERE RETAINED AND THE NECESSITY FOR THEM EXPLAINED IN THE
SENATE REPORT: 

     " TIME IS USUALLY OF THE ESSENCE IN THESE MATTERS, AND

  CONSEQUENTLY THE RELATIVELY SLOW PROCEDURE OF BOARD HEARING AND

  ORDER, FOLLOWED MANY MONTHS LATER BY AN ENFORCING DECREE OF THE

  CIRCUIT COURT OF APPEALS, FALLS SHORT OF ACHIEVING THE DESIRED

  OBJECTIVES--THE PROMPT ELIMINATION OF THE OBSTRUCTIONS TO THE

  FREE FLOW OF COMMERCE AND ENCOURAGEMENT OF THE PRACTICE AND

  PROCEDURE OF FREE AND PRIVATE COLLECTIVE BARGAINING.  HENCE WE

  HAVE PROVIDED THAT THE BOARD, ACTING IN THE PUBLIC INTEREST AND

  NOT IN VINDICATION OF PURELY PRIVATE RIGHTS, MAY SEEK INJUNCTIVE

RELIEF IN THE CASE OF ALL TYPES OF UNFAIR LABOR PRACTICES AND

  THAT IT SHALL ALSO SEEK SUCH RELIEF IN THE CASE OF STRIKES AND

  BOYCOTTS DEFINED AS UNFAIR LABOR PRACTICES."  S. REP. NO. 105,

  80TH CONG., 1ST SESS., 8 (1947) (EMPHASIS ADDED). 

        III     IT IS ARGUED, HOWEVER, THAT WHATEVER THE INTENTION
OF CONGRESS MIGHT HAVE BEEN WITH RESPECT TO JURY TRIAL IN CONTEMPT
ACTIONS ARISING OUT OF TAFT-HARTLEY INJUNCTIONS, ALL THIS WAS CHANGED
WHEN SEC. 11 WAS REPEALED AND REPLACED BY 18 U.S.C. SEC. 3692 AS PART
OF THE 1948 REVISION OF THE CRIMINAL CODE, IN THE COURSE OF WHICH SOME
IN OTHER TITLES WERE RECODIFIED IN TITLE 18.  THE NEW SEC. 3692, IT IS
INSISTED, REQUIRED JURY TRIALS FOR CONTEMPT CHARGES ARISING OUT OF ANY
INJUNCTIVE ORDER ISSUED UNDER THE LABOR MANAGEMENT RELATIONS ACT IF A
LABOR DISPUTE OF ANY KIND WAS INVOLVED.  THENCEFORWARD, IT IS CLAIMED,
CONTEMPT PROCEEDINGS FOR VIOLATIONS BY UNIONS OR EMPLOYERS OF
ENFORCEMENT ORDERS ISSUED BY COURTS OF APPEALS OR OF INJUNCTIONS ISSUED
UNDER SEC. 10 (J) OR SEC. 10 (L) MUST PROVIDE THE ALLEGED CONTEMNOR A
JURY TRIAL. 

THIS ARGUMENT IS UNPERSUASIVE.  NOT A WORD WAS SAID IN CONNECTION
WITH RECODIFYING SEC. 11 AS SEC. 3692 OF THE CRIMINAL CODE THAT WOULD
SUGGEST ANY SUCH IMPORTANT CHANGE IN THE SETTLED INTENTION OF CONGRESS,
WHEN IT ENACTED THE WAGNER AND TAFT-HARTLEY ACTS, THAT THERE WOULD BE
NO JURY TRIALS IN CONTEMPT PROCEEDINGS ARISING OUT OF LABOR ACT
INJUNCTIONS.  INJUNCTIONS AUTHORIZED BY THE LABOR MANAGEMENT RELATIONS
ACT WERE LIMITED TO THOSE SOUGHT BY THE BOARD, "ACTING IN THE PUBLIC
INTEREST AND NOT IN VINDICATION OF PURELY PRIVATE RIGHTS."  S. REP. NO.
105, 80TH CONG., 1ST SESS., 8 (1947).  WE CANNOT ACCEPT THE PROPOSITION
THAT CONGRESS, WITHOUT EXPRESSLY SO PROVIDING, INTENDED IN SEC. 3692 TO
CHANGE THE RULES FOR ENFORCING INJUNCTIONS WHICH THE LABOR MANAGEMENT
RELATIONS ACT AUTHORIZED THE LABOR BOARD, AN AGENCY OF THE UNITED
STATES, TO SEEK IN A UNITED STATES COURT.  CF. UNITED STATES V. MINE
WORKERS, 330 U.S., AT 269 - 276.  /8/ 

JUST AS SEC. 3692 MAY NOT BE READ APART FROM OTHER RELEVANT
PROVISIONS OF THE LABOR LAW, THAT SECTION LIKEWISE MAY NOT BE READ
ISOLATED FROM ITS LEGISLATIVE HISTORY AND THE REVISION PROCESS FROM
WHICH IT EMERGED, ALL OF WHICH PLACE DEFINITE LIMITATIONS ON THE
LATITUDE WE HAVE IN CONSTRUING IT.  THE REVISION OF THE CRIMINAL CODE
WAS, AS PETITIONERS SUGGEST, A MASSIVE UNDERTAKING, BUT, AS THE SENATE
REPORT ON THAT LEGISLATION MADE CLEAR, "(THE ORIGINAL INTENT OF
CONGRESS IS PRESERVED."  S.REP.  NO. 1620, 80TH CONG., 2D SESS., 1
(1948).  NOR IS IT ARGUABLE THAT THERE WAS ANY INTENT IN THE HOUSE TO
WORK A CHANGE IN THE UNDERSTOOD APPLICABILITY OF SEC. 11 IN ENACTING
SEC. 3692.  THE HOUSE REPORT STATED THAT "(REVISION, AS DISTINGUISHED
FROM CODIFICATION, MEANT THE SUBSTITUTION OF PLAIN LANGUAGE FOR AWKWARD
TERMS, RECONCILIATION OF CONFLICTING LAWS, OMISSION OF SUPERSEDED
80TH CONG., 1ST SESS., 2 (1947).  REVISIONS IN THE LAW WERE CAREFULLY
EXPLAINED /9/ IN A SERIES OF REVISER'S NOTES PRINTED IN THE HOUSE
REPORT.  ID., AT A1 ET SEQ. BUT THE REVISER'S NOTE TO SEC. 3692
INDICATES NO CHANGE OF SUBSTANCE IN THE LAW: 

     " BASED ON SECTION 111 OF TITLE 29, U.S.C., 1940 ED., LABOR

  (MAR. 23, 1932, CH. 90, SEC. 11, 47 STAT. 72). 

     " THE PHRASE 'OR THE DISTRICT OF COLUMBIA ARISING UNDER THE

  LAWS OF THE UNITED STATES GOVERNING THE ISSUANCE OF INJUNCTIONS

  OR RESTRAINING ORDERS IN ANY CASE INVOLVING OR GROWING OUT OF A

  LABOR DISPUTE' WAS INSERTED AND THE REFERENCE TO SPECIFIC

  SECTIONS OF THE NORRIS-LA GUARDIA ACT (SECTIONS 101 - 115 OF

  TITLE 29, U.S.C., 1940 ED.)  WERE ELIMINATED."  H.R. REP. NO.
304,

  SUPRA, AT A176. 

IT HAS LONG BEEN A "FAMILIAR RULE, THAT A THING MAY BE WITHIN THE
LETTER OF THE STATUTE AND YET NOT WITHIN THE STATUTE, BECAUSE NOT
WITHIN ITS SPIRIT, NOR WITHIN THE INTENTION OF ITS MAKERS."  HOLY
TRINITY CHURCH V. UNITED STATES, 143 U.S. 457, 459 (1892).  WHATEVER
MAY BE SAID WITH REGARD TO THE APPLICATION OF THIS RULE IN OTHER
CONTEXTS, THIS COURT HAS STATED UNEQUIVOCALLY THAT THE PRINCIPLE
EMBEDDED IN THE RULE "HAS PARTICULAR APPLICATION IN THE CONSTRUCTION OF
LABOR LEGISLATION ...."  NATIONAL WOOD WORK MFRS.  ASSN.  V. NLRB, 386
U.S. 612, 619 (1967).  MOREOVER, WE ARE CONSTRUING A STATUTE OF
CONGRESS WHICH, LIKE ITS PREDECESSOR, CREATED AN EXCEPTION TO THE
HISTORIC RULE THAT THERE WAS NO RIGHT TO A JURY TRIAL IN CONTEMPT
PROCEEDINGS.  TO READ A SUBSTANTIAL CHANGE IN ACCEPTED PRACTICE INTO A
REVISION OF THE CRIMINAL CODE WITHOUT ANY SUPPORT IN THE LEGISLATIVE
HISTORY OF THAT REVISION IS INSUPPORTABLE.  AS THIS COURT SAID IN
UNITED STATES V. RYDER, 110 U.S. 729, 740 (1884):  " IT WILL NOT BE
INFERRED THAT THE LEGISLATURE, IN REVISING AND CONSOLIDATING THE LAWS,
INTENDED TO CHANGE THEIR POLICY, UNLESS SUCH AN INTENTION BE CLEARLY
EXPRESSED." 

THE GENERAL RULE ANNOUNCED IN RYDER WAS APPLIED BY THIS COURT IN
FOURCO GLASS CO. V. TRANSMIRRA CORP., 353 U.S. 222 (1957).  IN THAT
CASE, THE QUESTION WAS WHETHER VENUE IN PATENT INFRINGEMENT ACTIONS WAS
TO BE GOVERNED BY 28 U.S.C. SEC. 1400 (B), A DISCRETE PROVISION DEALING
WITH VENUE IN PATENT INFRINGEMENT ACTIONS, OR 28 U.S.C.  SEC. 1391 (C),
A GENERAL PROVISION DEALING WITH VENUE IN ACTIONS BROUGHT AGAINST
CORPORATIONS.  BOTH OF THESE PROVISIONS UNDERWENT SOME CHANGE IN
WORDING IN THE 1948 REVISION OF THE JUDICIAL CODE.  /10/ THE RESPONDENT
IN THAT CASE, ARGUING IN FAVOR OF THE APPLICABILITY OF THE GENERAL
VENUE PROVISION, SEC. 1391 (C), TOOK THE POSITION THAT THE PLAIN
LANGUAGE OF SEC. 1391 (C) WAS "CLEAR AND UNAMBIGUOUS AND THAT ITS TERMS
INCLUDE ALL ACTIONS ...."  353 U.S., AT 228.  THIS COURT, STATING THAT
THE RESPONDENTS' ARGUMENT "MERELY POINTS UP THE QUESTION AND DOES
NOTHING TO ANSWER IT," IBID., DETERMINED THAT THE GENERAL PROVISION,
SEC. 1391 (C), HAD TO BE READ IN A FASHION CONSISTENT WITH THE MORE
PARTICULAR PROVISION, SEC. 1400 (B).  THE RESPONDENTS CONTENDED,
HOWEVER, THAT THE PREDECESSOR OF SEC. 1400 (B), WHICH THIS COURT HAD
HELD TO GOVERN VENUE IRRESPECTIVE OF A GENERAL REVENUE PROVISION,
STONITE PRODUCTS CO. V. MELVIN LLOYD CO., 315 U.S. 561 (1942), HAD
UNDERGONE A SUBSTANTIVE CHANGE DURING THE REVISION OF THE JUDICIAL CODE
IN 1948 WHICH EFFECTIVELY REVERSED THE RESULT DICTATED BY STONITE. 

THE COURT REJECTED THIS ARGUMENT IN TERMS ACUTELY RELEVANT TO THIS
CASE.  "(NO CHANGES OF LAW OR POLICY," THE COURT SAID, "ARE TO BE
PRESUMED FROM CHANGES OF LANGUAGE IN THE REVISION UNLESS AN INTENT TO
MAKE SUCH CHANGES IS CLEARLY EXPRESSED."  353 U.S., AT 227. 
FURTHERMORE, A CHANGE IN THE LANGUAGE OF A STATUTE ITSELF WAS NOT
ENOUGH TO ESTABLISH AN INTENT TO EFFECT A SUBSTANTIVE CHANGE, FOR
"EVERY CHANGE MADE IN THE TEST IS EXPLAINED IN DETAIL IN THE REVISERS'
NOTES," ID., AT 226, AND THE NOTES FAILED TO EXPRESS ANY SUBSTANTIVE
CHANGE.  THE COURT RELIED ON THE SENATE AND HOUSE REPORTS ON THE 1948
REVISION TO SUPPORT THIS POSITION, ID., AT 226 NN. 6 AND 7; THE
LANGUAGE QUOTED BY THE COURT FROM THE HOUSE REPORT IS VIRTUALLY
IDENTICAL TO THAT WHICH APPEARS IN THE HOUSE REPORT OF THE 1948
REVISION OF THE CRIMINAL CODE, SEE N. 9, SUPRA.  IN VIEW OF THE EXPRESS
DISAVOWALS IN THE HOUSE AND SENATE REPORTS ON THE REVISIONS OF BOTH THE
CRIMINAL CODE, SEE SUPRA, AT 468 - 469, AND THE JUDICIAL CODE, SEE N.
10, SUPRA, IT WOULD SEEM DIFFICULT AT BEST TO ARGUE THAT A CHANGE IN
THE SUBSTANTIVE LAW COULD NEVERTHELESS BE EFFECTED BY A CHANGE IN THE
LANGUAGE OF A STATUTE WITHOUT ANY INDICATION IN THE REVISER'S NOTE OF
THAT CHANGE.  IT IS NOT TENABLE TO ARGUE THAT THE REVISER'S NOTE TO
SEC. 3692, ALTHOUGH IT EXPLAINED IN DETAIL WHAT WORDS WERE DELETED FROM
AND ADDED TO WHAT HAD BEEN SEC. 11 OF THE NORRIS-LA GUARDIA ACT, SIMPLY
DID NOT BOTHER TO EXPLAIN AT ALL, MUCH LESS IN DETAIL, THAT AN
ADMITTEDLY SUBSTANTIAL RIGHT WAS BEING CONFERRED ON POTENTIAL
CONTEMNORS THAT HAD BEEN REJECTED IN THE DEFEAT OF THE BALL AMENDMENT
THE PREVIOUS YEAR AND THAT, HISTORICALLY, CONTEMNORS HAD NEVER
ENJOYED.  /11/ 

IN TIDEWATER OIL CO. V. UNITED STATES, 409 U.S. 151 (1972), THE
COURT APPLIED THE RULE THAT REVISIONS CONTAINED IN THE 1948 JUDICIAL
CODE SHOULD BE CONSTRUED BY REFERENCE TO THE REVISER'S NOTES.  THE
QUESTION WAS WHETHER A CHANGE IN THE LANGUAGE OF 28 U.S.C. SEC. 1292
(A)(1), MADE IN THE 1948 REVISION OF THE JUDICIAL CODE, HAD MODIFIED A
LONGSTANDING POLICY UNDER SEC. 2 OF THE EXPEDITING ACT OF 1903, 32
STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29, PROVIDING GENERALLY THAT THIS
COURT SHOULD HAVE EXCLUSIVE APPELLATE JURISDICTION OVER CIVIL ANTITRUST
ACTIONS BROUGHT BY THE GOVERNMENT.  SECTION 1292 (A) (1), AS REVISED,
WAS SUSCEPTIBLE OF TWO CONSTRUCTIONS, ONE OF WHICH WOULD HAVE RESULTED
IN A CHANGE IN THAT POLICY.  AFTER EMPHASIZING THAT "THE FUNCTION OF
THE REVISERS OF THE 1948 CODE WAS GENERALLY LIMITED TO THAT OF
CONSOLIDATION AND CODIFICATION," WE INVOKED THE "WELL-ESTABLISHED
PRINCIPLE GOVERNING THE INTERPRETATION OF PROVISIONS ALTERED IN THE
1948 REVISION ... THAT 'NO CHANGE IS TO BE PRESUMED UNLESS CLEARLY
EXPRESSED.'"  409 U.S., AT 162, QUOTING FOURCO GLASS CO. V. TRANSMIRRA
CORP., 353 U.S., AT 228.  AFTER GOING TO THE COMMITTEE REPORTS, THE
COURT WENT TO THE REVISER'S NOTES AND, IN THE NOTE TO SEC. 1292 (A)(1),
FOUND NO AFFIRMATIVE INDICATION OF A SUBSTANTIVE CHANGE.  ON THIS
BASIS, THE COURT REFUSED TO GIVE SEC. 1292 (A)(1) AS REVISED THE
"PLAUSIBLE" CONSTRUCTION URGED BY RESPONDENTS THERE. 

IN THIS CASE, INVOLVING THE 1948 REVISION OF THE CRIMINAL CODE, THE
HOUSE AND SENATE REPORTS CAUTION REPEATEDLY AGAINST READING SUBSTANTIVE
CHANGES INTO THE REVISION, AND THE REVISER'S NOTE TO SEC. 3692 GIVES
ABSOLUTELY NO INDICATION THAT A SUBSTANTIVE CHANGE IN THE LAW WAS
CONTEMPLATED.  IN THESE CIRCUMSTANCES, OUR CASES AND THE CANON OF
STATUTORY CONSTRUCTION WHICH CONGRESS EXPECTED WOULD BE APPLIED TO THE
REVISIONS OF BOTH THE CRIMINAL AND JUDICIAL CODES, REQUIRE US TO
CONCLUDE, ALONG WITH ALL THE LOWER FEDERAL COURTS HAVING CONSIDERED
THIS QUESTION SINCE 1948, SAVE ONE, THAT SEC. 3692 DOES NOT PROVIDE FOR
TRIAL BY JURY IN CONTEMPT PROCEEDINGS BROUGHT TO ENFORCE AN INJUNCTION
ISSUED AT THE BEHEST OF THE BOARD IN A LABOR DISPUTE ARISING UNDER THE
LABOR MANAGEMENT RELATIONS ACT.  /12/

        IV 

WE ALSO AGREE WITH THE COURT OF APPEALS THAT THE UNION PETITIONER
HAD NO RIGHT TO A JURY TRIAL UNDER ART. III, SEC. 2, AND THE SIXTH
AMENDMENT.  GREEN V. UNITED STATES, 356 U.S. 165 (1958), REAFFIRMED THE
HISTORIC RULE THAT STATE AND FEDERAL COURTS HAVE THE CONSTITUTIONAL
POWER TO PUNISH ANY CRIMINAL CONTEMPT WITHOUT A JURY TRIAL.  UNITED
STATES V. BARNETT, 376 U.S. 681 (1964), AND * CHEFF V. SCHNACKENBERG,
384 U.S. 373 (1966), PRESAGED A CHANGE IN THIS RULE.  THE
CONSTITUTIONAL DOCTRINE WHICH EMERGED FROM LATER DECISIONS SUCH AS
BLOOM V. ILLINOIS, 391 U.S. 194 (1968); FRANK V. UNITED STATES, 395
U.S. 147 (1969); BALDWIN V. NEW YORK, 399 U.S. 66 (1970); TAYLOR V.
HAYES, 418 U.S. 488 (1974); AND CODISPOTI V. PENNSYLVANIA, 418 U.S. 506
(1974), MAY BE CAPSULED AS FOLLOWS:  (1) LIKE OTHER MINOR CRIMES,
"PETTY" CONTEMPTS MAY BE TRIED WITHOUT A JURY, BUT CONTEMNORS IN
SERIOUS CONTEMPT CASES IN THE FEDERAL SYSTEM HAVE A SIXTH AMENDMENT
RIGHT TO A JURY TRIAL; (2) CRIMINAL CONTEMPT, IN AND OF ITSELF AND
WITHOUT REGARD TO THE PUNISHMENT IMPOSED, IS NOT A SERIOUS OFFENSE
ABSENT LEGISLATIVE DECLARATION TO THE CONTRARY; (3) LACKING LEGISLATIVE
AUTHORIZATION OF MORE SERIOUS PUNISHMENT, A SENTENCE OF AS MUCH AS SIX
MONTHS IN PRISON, PLUS NORMAL PERIODS OF PROBATION, MAY BE IMPOSED
WITHOUT A JURY TRIAL; (4) BUT IMPRISONMENT FOR LONGER THAN SIX MONTHS
IS CONSTITUTIONALLY IMPERMISSIBLE UNLESS THE CONTEMNOR HAS BEEN GIVEN
THE OPPORTUNITY FOR A JURY TRIAL. 

THIS COURT HAS AS YET NOT ADDRESSED THE QUESTION WHETHER AND IN WHAT
CIRCUMSTANCES, IF AT ALL, THE IMPOSITION OF A FINE FOR CRIMINAL
CONTEMPT, UNACCOMPANIED BY IMPRISONMENT, MAY REQUIRE A JURY TRIAL IF
DEMANDED BY THE DEFENDANT.  THIS CASE PRESENTS THE QUESTION WHETHER A
FINE OF $10,000 AGAINST AN UNINCORPORATED LABOR UNION FOUND GUILTY OF
CRIMINAL CONTEMPT MAY BE IMPOSED AFTER DENYING THE UNION'S CLAIM THAT
IT WAS ENTITLED TO A JURY TRIAL UNDER THE SIXTH AMENDMENT.  LOCAL 70
INSISTS THAT WHERE A FINE OF THIS MAGNITUDE IS IMPOSED, A CONTEMPT
CANNOT BE CONSIDERED A PETTY OFFENSE WITHIN THE MEANING OF 18 U.S.C.
SEC. 1 (3), AND THAT ITS DEMAND FOR A JURY TRIAL WAS THEREFORE
ERRONEOUSLY DENIED. 

WE CANNOT AGREE.  IN DETERMINING THE BOUNDARY BETWEEN PETTY AND
SERIOUS CONTEMPTS FOR PURPOSES OF APPLYING THE SIXTH AMENDMENT'S JURY
TRIAL GUARANTEE, AND IN HOLDING THAT A PUNISHMENT OF MORE THAN SIX
MONTHS IN PRISON COULD NOT BE ORDERED WITHOUT MAKING A JURY TRIAL
AVAILABLE TO THE DEFENDANT, THE COURT HAS REFERRED TO THE RELEVANT
RULES AND PRACTICES FOLLOWED BY THE FEDERAL AND STATE REGIMES,
INCLUDING THE DEFINITION OF PETTY OFFENSES UNDER 18 U.S.C. SEC. 1 (3). 
UNDER THAT SECTION, PETTY OFFENSES ARE DEFINED AS THOSE CRIMES "THE
PENALTY FOR WHICH DOES NOT EXCEED IMPRISONMENT FOR A PERIOD OF SIX
MONTHS OR A FINE OF NOT MORE THAN $500, OR BOTH."  BUT IN REFERRING TO
THAT DEFINITION, THE COURT ACCORDED IT NO TALISMANIC SIGNIFICANCE; AND
WE CANNOT ACCEPT THE PROPOSITION THAT A CONTEMPT MUST BE CONSIDERED A
SERIOUS CRIME UNDER ALL CIRCUMSTANCES WHERE THE PUNISHMENT IS A FINE OF
MORE THAN $500, UNACCOMPANIED BY IMPRISONMENT.  IT IS ONE THING TO HOLD
THAT DEPRIVATION OF AN INDIVIDUAL'S LIBERTY BEYOND A SIX-MONTH TERM
SHOULD NOT BE IMPOSED WITHOUT THE PROTECTIONS OF A JURY TRIAL, BUT IT
IS QUITE ANOTHER TO SUGGEST THAT, REGARDLESS OF THE CIRCUMSTANCES, A
JURY IS REQUIRED WHERE ANY FINE GREATER THAN $500 IS CONTEMPLATED. 
FROM THE STANDPOINT OF DETERMINING THE SERIOUSNESS OF THE RISK AND THE
EXTENT OF THE POSSIBLE DEPRIVATION FACED BY A CONTEMNOR IMPRISONMENT
AND FINES ARE INTRINSICALLY DIFFERENT.  IT IS NOT DIFFICULT TO GRASP
THE PROPOSITION THAT SIX MONTHS IN JAIL IS A SERIOUS MATTER FOR ANY
INDIVIDUAL, BUT IT IS NOT TENABLE TO ARGUE THAT THE POSSIBILITY OF A
$501 FINE WOULD BE CONSIDERED A SERIOUS RISK TO A LARGE CORPORATION OF
LABOR UNION.  INDEED, ALTHOUGH WE DO NOT REACH OR DECIDE THE ISSUE
TENDERED BY THE GOVERNMENT--THAT THERE IS NO CONSTITUTIONAL RIGHT TO A
JURY TRIAL IN ANY CRIMINAL CONTEMPT CASE WHERE ONLY A FINE IS IMPOSED
ON A CORPORATION OR LABOR UNION, BRIEF FOR RESPONDENT 36--WE CANNOT SAY
THAT THE FINE OF $10,000 IMPOSED ON LOCAL 70 IN THIS CASE WAS A
DEPRIVATION OF SUCH MAGNITUDE THAT A JURY SHOULD HAVE BEEN INTERPOSED
TO GUARD AGAINST BIAS OR MISTAKE.  THIS UNION, THE GOVERNMENT SUGGESTS,
COLLECTS DUES FROM SOME 13,000 PERSONS; AND ALTHOUGH THE FINE IS NOT
INSUBSTANTIAL, IT IS NOT OF SUCH MAGNITUDE THAT THE UNION WAS DEPRIVED
OF WHATEVER RIGHT TO JURY TRIAL IT MIGHT HAVE UNDER THE SIXTH
AMENDMENT.  WE THUS AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

                                  AFFIRMED. 

/1/ A FINE OF $25,000 WAS IMPOSED INITIALLY, BUT $15,000 OF THAT
FINE WAS SUBSEQUENTLY REMITTED BY THE DISTRICT COURT BASED ON LOCAL
70'S OBEDIENCE OF THE INJUNCTIONS SUBSEQUENT TO THE ADJUDICATION OF
CONTEMPT. 

/2/ TITLE 18 U.S.C. SEC. 3692 READS IN PERTINENT PART AS FOLLOWS: 

" IN ALL CASES OF CONTEMPT ARISING UNDER THE LAWS OF THE UNITED
STATES GOVERNING THE ISSUANCE OF INJUNCTIONS OR RESTRAINING ORDERS IN
ANY CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE, THE ACCUSED SHALL
ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL BY AN IMPARTIAL JURY OF
THE STATE AND DISTRICT WHEREIN THE CONTEMPT SHALL HAVE BEEN
COMMITTED." 

/3/ ALTHOUGH STATING BROADLY AT THE OUTSET THAT "(BY ITS OWN TERMS
(SEC. 3692) ENCOMPASSES ALL CASES OF CONTEMPT ARISING UNDER ANY OF THE
SEVERAL LAWS OF THE UNITED STATES GOVERNING THE ISSUANCE OF INJUNCTIONS
IN CASES OF A 'LABOR DISPUTE,'" DISSENTING OPINION OF MR. JUSTICE
STEWART, POST, AT 482, THAT DISSENT SEEMS TO IMPLY THAT SEC. 3692,
AFTER ALL, DOES NOT REACH ALL CASES OF CONTEMPT IN LABOR DISPUTE
INJUNCTIONS.  THAT DISSENT APPEARS TO SAY THAT SEC. 3692 PROVIDES THE
RIGHT TO JURY TRIALS ONLY IN CASES INVOLVING CRIMINAL, AS OPPOSED TO
CIVIL, CONTEMPT.  THIS IS SO, IT IS SUGGESTED, BECAUSE THAT SECTION
GUARANTEES THE RIGHT TO "THE ACCUSED," THE INFERENCE BEING THAT ONE
CHARGED WITH CIVIL CONTEMPT IS NOT ONE PROPERLY DENOMINATED AS AN
"ACCUSED."  POST, AT 487 - 488, N. 7.  BUT THE PHRASE "THE ACCUSED" WAS
TAKEN VERBATIM FROM SEC. 11 OF THE NORRIS-LA GUARDIA ACT, 47 STAT. 72,
29 U.S.C. SEC. 111 (1946 ED.), AND THE LEGISLATIVE HISTORY OF SEC. 11
LEAVES LITTLE ROOM TO DOUBT THAT WHEN CONGRESS ENACTED SEC. 11, IT
INTENDED THAT SECTION TO BE APPLICABLE TO BOTH CRIMINAL AND CIVIL
CONTEMPT PROCEEDINGS.  THAT HISTORY ESTABLISHES THAT SEC. 11 WAS A
COMPROMISE BETWEEN THE SENATE VERSION OF THE BILL, WHICH PROVIDED FOR A
JURY TRIAL IN ALL CONTEMPT CASES, AND THE HOUSE VERSION OF THE BILL,
WHICH PROVIDED FOR JURY TRIALS IN ALL CRIMINAL CONTEMPT CASES ARISING
UNDER THE NORRIS-LA GUARDIA ACT.  THE COMPROMISE, AS EXPLAINED TO THE
HOUSE, GAVE THE RIGHT TO A JURY TRIAL IN ALL CONTEMPTS, CIVIL OR
CRIMINAL, IN CASES ARISING UNDER THE ACT.  75 CONG. REC. 6336 - 6337
(1932).  IN THE SENATE, SENATOR NORRIS HIMSELF EXPLAINED THE COMPROMISE
AS FOLLOWS: 

" AS THE HOUSE PASSED THE BILL IT DID NOT APPLY TO ALL CONTEMPT
CASES UNDER THE ACT.  AS THE SENATE PASSED IT, IT APPLIED TO ALL CASES,
EITHER UNDER THE ACT OR OTHERWISE.  AS THE HOUSE PASSED IT, IT APPLIED
ONLY TO CRIMINAL CONTEMPT.  AS THE SENATE PASSED IT, IT APPLIED TO ALL
CONTEMPTS.  THE COMPROMISE WAS TO CONFINE IT TO ALL CASES UNDER THE ACT
AND TO ELIMINATE THE WORD 'CRIMINAL,' BUT THE CASES MUST ARISE UNDER
THIS ACT."  ID., AT 6450.  AND, SENATOR NORRIS CONTINUED:  " UNDER THE
COMPROMISE MADE, THE LANGUAGE OF THE SENATE WAS AGREED TO, SO THAT NOW
ANYONE CHARGED WITH ANY KIND OF A CONTEMPT ARISING UNDER ANY OF THE
PROVISIONS OF THIS ACT WILL BE ENTITLED TO A JURY TRIAL IN THE CONTEMPT
PROCEEDINGS."  ID., AT 6453.  CERTAINLY WHEN CONGRESS USED THE PHRASE
"THE ACCUSED" IN SEC. 11, IT DID NOT MEAN TO LIMIT THAT PHRASE TO
DESCRIBING ONLY THOSE ACCUSED OF CRIMINAL CONTEMPT. 

THE DISSENT OF MR. JUSTICE STEWART ALSO SUGGESTS THAT THIS LIMITED
READING OF SEC. 3692 IS "CONSISTENT" WITH THE PLACING OF THAT
PROVISION, BASED ON SEC. 11 OF NORRIS-LA GUARDIA, INTO TITLE* 18 IN
1948.  IF THERE IS ANY CONSISTENCY IN THIS SUGGESTION, IT IS IN THAT
DISSENT'S CONSISTENT POSITION THAT CONGRESS IN 1948, WITHOUT ANY
INTENTION WHATSOEVER TO DO SO, MADE SUBSTANTIAL CHANGES IN THE RIGHT TO
JURY TRIAL--INCLUDING OUTRIGHT REPEAL OF WHATEVER STATUTORY RIGHT THERE
WAS TO JURY TRIAL IN CIVIL CONTEMPT CASES ARISING OUT OF LABOR
DISPUTES, THEREBY REVERSING ITSELF ON AN ISSUE THAT HAD BEEN THOROUGHLY
CONSIDERED AND DECIDED SOME 16 YEARS BEFORE IN NORRIS-LA GUARDIA. 

IN ARGUING THAT SEC. 3692 MAY NOT REACH CIVIL CONTEMPT CASES, MR.
JUSTICE STEWART ALSO RELEIS ON IMPLICATIONS WHICH HE FINDS IN SEC.
10(L) OF THE LMRA THAT SEC. 3692, DESPITE ITS LANGUAGE, HAS NO
APPLICATION IN THOSE CASES.  AS IS CLEAR FROM THIS OPINION, INFRA, AT
463 - 467, WE TOO RELY ON SEC. 10 (L), AS WELL AS OTHER PROVISIONS, IN
SUGGESTING THAT CERTAIN CONTEMPT CASES ARE NOT REACHED BY SEC. 3692. 

THERE IS ALSO A SUGGESTION IN THE DISSENT OF MR. JUSTICE STEWART
THAT ONE CHARGED WITH CONTEMPT OF AN INJUNCTION ISSUED DURING A
NATIONAL EMERGENCY, 29 U.S.C. SEC. 176 - 180, WOULD NOT HAVE THE RIGHT
TO A JURY TRIAL NOTWITHSTANDING SEC. 3692.  APPARENTLY THIS IS SO
BECAUSE 29 U.S.C. SEC. 178 (B), SEC. 208 OF THE TAFT-HARTLEY ACT,
"PROVIDED SIMPLY AND BROADLY THAT ALL THE PROVISIONS OF THAT (NORRIS-LA
GUARDIA) ACT ARE INAPPLICABLE."  POST, AT 486.  BUT THE LANGUAGE
CONGRESS USED IN SEC. 178 (B), "THE PROVISIONS OF SECTIONS 101 TO 115
OF THIS TITLE, SHALL NOT BE APPLICABLE," IS REMARKABLY SIMILAR TO THE
LANGUAGE USED IN CONFERENCE REPORT OF THE TAFT-HARTLEY ACT TO CONVEY
THE CONGRESSIONAL UNDERSTANDING OF SEC. 10(H) OF THE WAGNER ACT WHICH
IT WAS RE-ENACTING IN TAFT-HARTLEY:  "MAKING INAPPLICABLE THE
PROVISIONS OF THE NORRIS-LA GUARDIA ACT IN PROCEEDINGS BEFORE THE
COURTS ...."  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., 57
(1947).  SEE N.6, INFRA. 

MR. JUSTICE STEWART'S POSITION WITH RESPECT TO THE APPLICABILITY OF
SEC. 3692 IN PROCEEDINGS BROUGHT IN THE COURT OF APPEALS TO ENFORCE
BOARD ORDERS DIRECTED AGAINST EMPLOYERS IS EVEN LESS CLEAR, BUT IT
WOULD SEEM TO BE THE INESCAPABLE CONSLUSION UNDER THE DISSENT'S
ANALYSIS THAT, AT LEAST IN CRIMINAL CONTEMPTS OF SUCH ORDERS, THE
COURTS OF APPEALS WOULD BE REQUIRED TO EMPANEL JURIES, A RESULT THAT
WOULD CERTAINLY REPRESENT A NOVEL PROCEDURE, SEE UNITED STATES V.
BARNETT, 394 U.S. 681, 690 - 691, AND N.7 (1964). 

ON THE OTHER HAND, IF MR. JUSTICE STEWART WOULD LIMIT SEC. 3692 TO
APPLY ONLY TO DISOBEDIENCE OF THOSE INJUNCTIONS NEWLY AUTHORIZED BY THE
TAFT-HARTLEY ACT IN 1947, THAT SECTION, DESPITE ITS LANGUAGE, WOULD NOT
APPLY TO INJUNCTIONS ISSUED BY THE COURTS OF APPEALS IN ENFORCEMENT
ACTIONS AGAINST EMPLOYERS (IT WOULD BE OTHERWISE WHERE UNIONS OR
EMPLOYEES ARE INVOLVED) FOR THE REASON THAT THE PROVISIONS OF THE
WAGNER ACT INCLUDED IN THE LMRA HAVE THE EFFECT OF EXEMPTING THOSE
SITUATIONS FROM THE REACH OF SEC. 3692.  VERY SIMILAR REASONS FURNISH
SOUND GROUND FOR THE INAPPLICABILITY OF SEC. 3692 TO CONTEMPT CASES
ARISING OUT OF ANY OF THE INJUNCTIONS AUTHROIZED BY THE TAFT-HARTLEY
ACT. 

/4/ SECTION 11 OF THE NORRIS-LA GUARDIA ACT, 29 U.S.C. SEC. 111
(1946 ED.), READ, IN PERTINENT PART, AS FOLLOWS: 

" IN ALL CASES ARISING UNDER SECTIONS 101 - 115 OF THIS TITLE IN
WHICH A PERSON SHALL BE CHARGED WITH CONTEMPT IN A COURT OF THE UNITED
STATES (AS HEREIN DEFINED), THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CONTEMPT SHALL HAVE BEEN COMMITTED." 

/5/ THE POSITION OF MR. JUSTICE DOUGLAS, DISSENTING, POST, AT 478 -
479, THAT INJUNCTIONS ISSUED PURSUANT TO THE WAGNER AND TAFT-HARTLEY
ACTS ARE OR WOULD HAVE BEEN "ARISING UNDER" THE NORRIS-LA GUARDIA ACT,
AND THEREFORE SUBJECT TO SEC. 11 PRIOR TO 1948, IS CONTRARY TO THE
UNDERSTANDING OF THE CONGRESSES THAT PASSED THE WAGNER ACT, N.6, INFRA,
AND THE TAFT-HARTLEY ACT, INFRA, AT 464 - 467, AND OF EVERY COURT TO
HAVE CONSIDERED THIS QUESTION, SEE CASES CITED N.12, INFRA. 

/6/ THE ONLY LEGISLATIVE HISTORY OF THE WAGNER ACT ADDRESSING THIS
QUESTION WAS THE STATEMENT OF A WITNESS, APPARENTLY MADE IN REFERENCE
TO THE ORIGINAL VERSION OF SEC. 10 (H), SEC. 304 (A) OF S.2926, WHICH
WAS UNCONTRADICTED BY ANY PRIOR OR SUBSEQUENT HISTORY: 

" THE WHOLE THEORY OF ENFORCEMENT OF THESE ORDERS IS THROUGH
CONTEMPT PROCEEDINGS . . . . (THE ORDERS OF THE LABOR BOARD IS MADE AN
ORDER OF THE FEDERAL COURT, SUBJECT TO BEING PUNISHED BY CONTEMPT. 
NOW, IN THE NORRIS-LA GUARDIA ACT, THERE HAS BEEN CONSIDERABLE CHANGE
OF THE ORDINARY PROCEDURE ON CONTEMPT.  I WON'T GO INTO DETAIL, BUT
SIMPLY STATE THAT IN A GREAT MAJORITY OF INSTANCES PUNISHMENT, WHERE
THE EMPLOYEES ARE THE DEFENDANTS, MUST BE BY TRIAL BY JURY.  THIS IS,
OF COURSE, NOT PERMISSIBLE IN ANY CASE UNDER THE WAGNER BILL." 
HEARINGS ON S.2926 BEFORE THE SENATE COMMITTEE ON EDUCATION AND LABOR,
73D CONG., 2D SESS., 505 (1934). 

/7/ THE DISSENTS SUGGEST THAT THE WORD "JURISDICTION" AS USED IN
BOTH SEC. 10 (H) AND SEC. 10 (L) IS TO BE READ IN THE TECHNICAL SENSE
AND THAT THE REFERENCE TO ALL THE PROVISIONS OF NORRIS-LA GUARDIA IN
SEC. 10 (H) WAS MERELY "AN ADDITIONAL MEANS OF IDENTIFYING" THE NORRIS
LA GUARDIA ACT.  POST, 486.  YET THE LANGUAGE QUOTED IN THE TEXT FROM
THE HOUSE CONFERENCE REPORT SUPPORTS ONLY THE POSITION THAT CONGRESS,
IN RE-ENACTING SEC. 10 (H) IN 1947, UNDERSTOOD THAT SECTION AS "MAKING
INAPPLICABLE THE PROVISIONS OF THE NORRIS-LA GUARDIA ACT,"  NOT "MAKING
INAPPLICABLE THE JURISDICTIONAL PROVISIONS OF THE NORRIS-LA GUARDIA
ACT" AS THE DISSENTS WOULD HAVE IT.  SUPPORT FOR THE POSITION THAT SEC.
10 (H) WAS UNDERSTOOD BY CONGRESS IN 1947 TO MAKE INAPPLICABLE ALL THE
PROVISIONS OF NORRIS-LA GUARDIA COMES NOT ONLY FROM THE HOUSE
CONFERENCE REPORT BUT ALSO FROM A MEMORANDUM INTRODUCED INTO THE
CONGRESSIONAL RECORD A DECADE LATER BY REPRESENTATIVE CELLER, WHO
CONCLUDED THAT "THE CLEAR AND UNEQUIVOCAL WORDING OF SECTION 10 (H) . .
. CLEARLY INDICATES A WAIVER OF ALL THE PROVISIONS OF THE NORRIS-LA
GUARDIA ACT, INCLUDING THE PROVISIONS FOR A JURY TRIAL, IN CASES WHERE
THE GOVERNMENT WAS A PARTY TO THE ORIGINAL ACTION."  103 CONG. REC.
8685 (1957).  REPRESENTATIVE CELLER WAS THE CHAIRMAN OF A HOUSE
SUBCOMMITTEE WHICH HAD PREVIOUSLY HELD HEARINGS ON THE 1948 REVISION OF
THE CRIMINAL CODE INCLUDING SEC. 3692.  THE DISSENTS OFFER NOTHING FROM
THE LEGISLATIVE HISTORY THAT SHOULD LEAD US TO REJECT THE CLEAR MEANING
OF THE HOUSE CONFERENCE REPORT WITH RESPECT TO THE CONGRESSIONAL
UNDERSTANDING OF SEC. 10 (H). 

/8/ PETITIONERS' CONTENTION THAT SEC. 3692 WAS CONGRESS' RESPONSE TO
THE COURT'S DECISION IN UNITED STATES V. MINE WORKERS, SUPRA, IS
PARTICULARLY INSUPPORTABLE IN LIGHT OF THE FACT THAT THE REVISER'S
NOTE, AS SET FORTH INFRA, AT 469, WAS TAKEN VERBATIM FROM THE PRIOR
REVISER'S NOTE TO SEC. 3692 THAT WAS REPORTED TO THE HOUSE ON FEBRUARY
15, 1945, MORE THAN TWO YEARS PRIOR TO THIS COURT'S DECISION IN MINE
WORKERS AND MORE THAN THREE YEARS PRIOR TO THE 1948 REVISION OF THE
CRIMINAL CODE.  THE BILL REPORTED TO THE HOUSE IN 1945, H.R. 2200, WAS
ADOPTED BY THE HOUSE ON JULY 16, 1946 AGAIN PRIOR TO THE DECISION IN
UNITED MINE WORKERS AND PRIOR TO FEBRUARY 5, 1947, WHEN THE HOUSE
COMMITTEE ON EDUCATION AND LABOR BEGAN HEARINGS ON LABOR LEGISLATION
WHICH EVENTUALLY LED TO THE INTRODUCTION OF THE TAFT-HARTLEY BILL IN
THE HOUSE ON APRIL 10, 1947.  THE IDENTICAL VERSION OF THE CRIMINAL
CODE PASSED THE HOUSE FOR THE FINAL TIME ON MAY 12, 1947, ALMOST TWO
MONTHS PRIOR TO THE HOUSE'S ACCEPTANCE OF THE CONFERENCE VERSION OF
TAFT-HARTLEY. 

THERE COULD BE NO ARGUMENT THAT THE CHANGE IN WORDING IN SEC. 3692
WAS INTENDED TO REACH CRIMINAL CONTEMPT PROCEEDINGS FOR VIOLATION OF
THOSE BOARD INJUNCTIONS NEWLY AUTHORIZED IN 1947, FOR THE HOUSE OF
REPRESENTATIVES PASSED SEC. 3692 FOR THE FIRST TIME MORE THAN SIX
MONTHS BEFORE HEARINGS EVEN COMMENCED IN THE HOUSE TO CONSIDER THE TAFT
HARTLEY LEGISLATION, AND PASSED IT FOR THE SECOND AND FINAL TIME,
UNCHANGED, MORE THAN TWO MONTHS BEFORE THE HOUSE ACCEPTED THE
CONFERENCE VERSION OF TAFT-HARTLEY. 

/9/ THE HOUSE REPORT STATES THAT "(THE REVISER'S NOTES ..., EXPLAIN
IN DETAIL EVERY CHANGE MADE IN TEXT."  H.R. REP. NO. 304, 80TH CONG.,
1ST SESS., 9 (1947). 

/10/ THE COURT'S ANALYSIS IN FOURCO GLASS CO. V. TRANSMIRRA CORP.,
353 U.S. 222 (1957), IS PARTICULARLY RELEVANT TO OUR INQUIRY IN THIS
CASE BECAUSE OF THE PARALLEL COURSES FOLLOWED BY THE REVISIONS OF THE
CRIMINAL AND JUDICIAL CODES.  THE REVISION TO THE CRIMINAL CODE WAS
PREPARED BY A STAFF OF EXPERTS DRAWN FROM VARIOUS SOURCES AND, AFTER
THIS STAFF COMPLETED ITS WORK ON THAT REVISION, THE SAME STAFF TURNED
ITS ATTENTION TO THE REVISION OF THE JUDICIAL CODE.  THE ONLY HEARINGS
HELD IN THE HOUSE ON EITHER OF THE REVISIONS WERE HELD JOINTLY BY A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY.  HEARINGS ON
REVISION OF TITLES 18 AND 28 OF THE UNITED STATES CODE, BEFORE
SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 80TH CONG.,
1ST SESS. (1947).  THE HOUSE REPORTS ISSUED SUBSEQUENT TO THOSE
HEARINGS PARALLEL ONE ANOTHER IN MANY RESPECTS, INCLUDING ALMOST
IDENTICAL STATEMENTS RESPECTING THE PURPOSE AND SCOPE OF THE TWO
REVISIONS.  COMPARE H.R. REP. NO. 304, 80TH CONG., 1ST SESS., 2 (1947),
QUOTED IN THE TEXT, SUPRA, AT 469, WITH H.R. REP. NO. 308, 80TH CONG.,
1ST SESS., 2 (1947:  " REVISION, AS DISTINGUISHED FROM CODIFICATION,
REQUIRED THE SUBSTITUTION OF PLAIN LANGUAGE FOR AWKWARD TERMS,
RECONCILIATION OF CONFLICTING LAWS, REPEAL OF SUPERSEDED SECTIONS, AND
CONSOLIDATION OF RELATED PROVISIONS."     THE SENATE REPORTS ON THE TWO
REVISIONS LIKEWISE EXPRESSED THE INTENTION OF PRESERVING THE ORIGINAL
MEANING OF THE STATUTES UNDERGOING REVISION.  COMPARE S. REP. NO. 1620,
80TH CONG., 2D SESS., 1 (1948), QUOTED IN THE TEXT, SUPRA, AT 469, WITH
S.REP.  NO. 1559, 80TH CONG., 2D SESS., 2 (1948) ("GREAT CARE HAS BEEN
EXERCISED TO MAKE NO CHANGES IN THE EXISTING LAW WHICH WOULD NOT MEET
WITH SUBSTANTIALLY UNANIMOUS APPROVAL").  TESTIMONY IN THE HOUSE JOINT
HEARINGS CONFIRMS THAT THE METHODS AND INTENT OF THE REVISERS
THEMSELVES WERE THE SAME WITH RESPECT TO BOTH REVISIONS.  HEARINGS,
SUPRA, AT 6. 

/11/ THIS POINT WAS CLEARLY MADE BY THE LAW REVISION COUNSEL TO THE
HOUSE SUBCOMMITTEE WHICH HELD JOINT HEARINGS ON THE REVISIONS TO THE
JUDICIAL AND CRIMINAL CODES: 

" THERE IS ONE THING THAT I WOULD LIKE TO POINT OUT ... AND THAT IS
THE RULE OF STATUTORY CONSTRUCTION. 

" IN THE WORK OF REVISION, PRINCIPALLY CODIFICATION, AS WE HAVE DONE
HERE, KEEPING REVISION TO A MINIMUM, I BELIEVE THE RULE OF STATUTORY
CONSTRUCTION IS THAT A MERE CHANGE OF WORDING WILL NOT EFFECT A CHANGE
IN MEANING UNLESS A CLEAR INTENT TO CHANGE THE MEANING IS EVIDENCED. 

" TO FIND OUT THE INTENT, I THINK THE COURTS WOULD GO TO THE REPORT
OF THE COMMITTEE ON THE BILLS AND THESE REPORTS ARE MOST
COMPREHENSIVE.  WE HAVE INCORPORATED IN THEM ... NOTES TO EACH SECTION
OF THE BILLS, BOTH THE CRIMINAL CODE AND THE JUDICIAL CODE. 

" IT IS CLEARLY INDICATED IN EACH OF THOSE REVISERS' NOTES WHETHER
ANY CHANGE WAS INTENDED SO THAT MERELY BECAUSE WE HAVE CHANGED THE
LANGUAGE--WE HAVE CHANGED THE LANGUAGE TO GET A UNIFORM STYLY, TO AVOID
AWKWARD EXPRESSION, TO STATE A THING MORE CONCISELY AND SUCCINCTLY--BUT
A MERE CHANGE IN LANGUAGE WILL NOT BE INTERPRETED AS AN INTENT TO
CHANGE THE LAW UNLESS THERE IS SOME OTHER CLEAR EVIDENCE OF AN INTENT
TO CHANGE THE LAW."  HEARINGS ON REVISION OF TITLES 18 AND 28 OF THE
U.S.C. BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 80TH CONG., 1ST SESS., 40 (1947) (EMPHASIS ADDED). 

THIS STATEMENT IS PARTICULARLY PERSUASIVE IN VIEW OF THE FACT THAT
ITS MAKER, MR. ZINN, HAD SERVED AS COUNSEL TO THE COMMITTEE ON REVISION
OF THE LAWS FOR THE PREVIOUS EIGHT YEARS; THE HOUSE REPORT ON THE
REVISION OF THE CRIMINAL CODE POINTED OUT THAT MR. ZINN HAD, FOR THAT
COMMITTEE, "EXERCISED CLOSE AND CONSTANT SUPERVISION" OVER THE WORK OF
THE REVISERS WHO PREPARED THE REVISION.  H.R.REP.  NO 304, 80TH CONG.,
1ST SESS., 3 (1947).  THE NATURE OF THE REVISION PROCESS ITSELF
REQUIRES THE COURTS, INCLUDING THIS COURT, TO GIVE PARTICULAR FORCE TO
THE MANY EXPRESS DISAVOWALS IN THE HOUSE AND SENATE REPORTS OF ANY
INTENT TO EFFECT SUBSTANTIVE CHANGES IN THE LAW. 

/12/ MADDEN V. GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, 334 F.2D
1014 (CA7 1964), CERT. DENIED, 379 U.S. 967 (1965) (SEC. 10 (L)
PROCEEDING); SCHAUFFLER V. LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S
ASSN., 189 F. SUPP. 737 (ED PA. 1960), REV'D ON OTHER GROUNDS, 292 F.2D
182 (CA3 1961) (SEC. 10(L) PROCEEDING).  SEE UNITED STATES V. ROBINSON,
449 F.2D 925 (CA9 1971) (SUIT FOR INJUNCTIVE RELIEF BROUGHT BY THE
UNITED STATES AGAINST EMPLOYEES OF A FEDERAL AGENCY); BROTHERHOOD OF
LOCOMOTIVE FIREMEN & ENGINEMEN V. BANGOR & AROOSTOOK R. CO., 127
U.S.APP.  D.C. 23, 380 F.2D 570, CERT. DENIED, 389 U.S. 327 (1967)
(PROCEEDING UNDER RAILWAY LABOR ACT, 45 U.S.C. SEC. 151 ET SEQ.); NLRB
V. RED ARROW FREIGHT LINES, 193 F.2D 979 (CA5 1952) (PROCEEDING BROUGHT
FOR VIOLATION OF SEC. 7 OF THE WAGNER ACT, AS AMENDED BY THE TAFT
HARTLEY ACT, NOW 29 U.S.C. SEC. 157); IN RE WINN-DIXIE STORES, INC.,
386 F. 2D 309 (CA5 1967) (PROCEEDINGS FOR VIOLATION OF SEC. 7 OF THE
WAGNER ACT, AS AMENDED BY THE TAFT-HARTLEY ACT, NOW 29 U.S.C. SEC.
157); MITCHELL V. BARBEE LUMBER CO., 35 F.R.D. 544 (SD MISS.  1964)
(PROCEEDINGS BROUGHT FOR VIOLATION OF ORDER ISSUED FOR VIOLATION OF
FAIR LABOR STANDARDS ACT, 29 U.S.C. SEC. 201 ET SEQ.); IN RE PICCINNI,
35 F.R.D. 548 (WDPA.  1964) (PROCEEDINGS BROUGHT FOR VIOLATIONS OF
CONSENT DECREE INVOLVING FAIR LABOR STANDARDS ACT, 29 U.S.C. SEC. 201
ET SEQ.).  THE ONLY DECISION TO THE CONTRARY, IN RE UNION NACIONAL DE
TRABAJADORES, 502 F.2D 113 (CA1 1974), WAS DECIDED WITHOUT EXPRESS
REFERENCE TO ANY OF THE PERINENT LEGISLATIVE HISTORY OF THE WAGNER AND
TAFT-HARTLEY ACT; THE PANEL OF THE COURT OF APPEALS WAS ITSELF DIVIDED
OVER THE CORRECT RESULT, SEE ID., AT 121 - 122 (CAMPBELL, J.,
DISSENTING). 

MR. JUSTICE DOUGLAS, DISSENTING. 

        I 

I BELIEVE THAT PETITIONERS ARE ENTITLED TO TRIAL BY JURY UNDER 18
U.S.C. SEC. 3692, WHICH PROVIDES THAT, WITH CERTAIN EXCEPTIONS NOT HERE
MATERIAL: 

     IN ALL CASES OF CONTEMPTING ARISING UNDER THE LAWS OF THE

  UNITED STATES GOVERNING THE ISSUANCE OF INJUNCTIONS OR

  RESTRAINING ORDERS IN ANY CASE INVOLVING OR GROWING OUT OF A

  LABOR DISPUTE, THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND

  PUBLIC TRIAL BY AN IMPARTIAL JURY...." 

IN ENACTING THIS LANGUAGE IN 1948, CONGRESS REAFFIRMED THE PURPOSE
ORIGINALLY EXPRESSED IN SEC. 11 OF THE NORRIS LA GUARDIA ACT, 47 STAT.
72, 29 U.S.C. SEC. 111 (1946 ED.).  THAT ACT WAS INTENDED TO SHIELD THE
ORGANIZED LABOR MOVEMENT FROM THE INTERVENTION OF A FEDERAL JUDICIARY
PERCEIVED BY SOME AS HOSTILE TO LABOR.  THE ACT SEVERLY CONSTRAINED THE
POWER OF A FEDERAL COURT TO ISSUE AN INJUNCTION AGAINST ANY PERSON
"PARTICIPATING OR INTERESTED IN A LABOR DISPUTE."  SECTION 11 PROVIDED
FOR TRIAL BY JURY IN "ALL CASES ARISING UNDER THIS ACT IN WHICH A
PERSON SHALL BE CHARGED WITH CONTEMPT."  IN THE CONTEXT OF THE CASE NOW
BEFORE US, I VIEW THIS SECTION AS AFFORDING, AT THE VERY LEAST, A JURY
TRIAL IN ANY CRIMINAL CONTEMPT PROCEEDING INVOLVING AN ALLEGED
VIOLATION OF AN INJUNCTION ISSUED AGAINST A PARTICIPANT IN A "LABOR
DISPUTE".  ANY SUCH INJUNCTION ISSUED BY A FEDERAL COURT WAS ONE
"ARISING UNDER" THE ACT, FOR IT COULD HAVE BEEN ISSUED ONLY IN
ACCORDANCE WITH THE ACT'S PRESCRIPTIONS.  /1/ THE EVIDENT CONGRESSIONAL
INTENT WAS TO PROVIDE FOR THE INTERPOSITION OF A JURY WHEN DISOBEDIENCE
OF SUCH AN INJUCTION WAS ALLEGED.  /2/ 

FOR THE REASONS STATED BY MR. JUSTICE STEWART, POST, AT 485 - 486, I
AM PERSUADED THAT SEC. 10 (H) AND 10 (L) OF THE NATIONAL LABOR
RELATIONS ACT MADE INAPPLICABLE ONLY THE ANTI-INJUNCTION PROVISIONS OF
THE NORRIS-LA GUARDIA ACT AND DID NOT DISTRURB SEC. 11.  THE BROAD
MANDATE OF SEC. 11, TO AFFORD TRIAL BY JURY IN A CONTEMPT PROCEEDING
INVOLVING AN INJUNCTION ISSUED IN A LABOR DISPUTE, WAS THUS CONTINUED
IN SEC. 3692.  /3/ SEE GREEN V. UNITED STATES, 356 U.S. 165, 217 (1958)
(BLACK, J., DISSENTING). 

        II 

I WOULD REVERSE THE JUDGMENT AGAINST LOCAL 70 ON CONSTITUTIONAL
GROUNDS.  /4/ ARTICLE III, SEC. 2, OF THE CONSTITUTIONA PROVIDES THAT
"(THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY
JURY ...." 

AND THE SIXTH AMENDMENT PROVIDES IN PERTINENT PART: 

     " IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE

  RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE

  STATE AND IDISTRICT WHEREIN THE CRIME SHALL HAVE BEEN

  COMMITTED...."  (EMPHASIS ADDED.) 

THE COURT FAILS TO GIVE EFFECT TO THIS LANGUAGE WHEN IT DECLARES THAT A
$10,000 FINE IS "NOT OF SUCH MAGNITUDE THAT A JURY SHOULD HAVE BEEN
INTERPOSED TO GUARD AGAINST BIAS OR MISTAKE.  ANTE, AT 477.  I HAVE
PREVIOUSLY PROTESTED THIS COURT'S REFUSAL TO RECOGNIZE A RIGHT TO JURY
TRIAL IN CASES WHERE IT DEEMS AN OFFENSE TO BE "PETTY".  /5/ BUT EVEN
THE "PETTY OFFENSE" EXCEPTION CANNOT JUSTIFY TODAY'S RESULT, FOR IT IS
IMPOSSIBLE FAIRLY TO CHARACTERIZE EITHER THE OFFENSE OR ITS PENALTY AS
"PEETTY."  /6/ DISOBEDIENCE OF AN INJUNCTION OBRAINED BY THE BOARD IS
HARDLY A TRANGRESSION TRIVIAL BY ITS NATURE; AND THE IMPOSITION OF A
$10,000 FINE IS NOT A MATTER MOST LOCALS WOULD TAKE LIGHTLY.  IN ANY
EVENT, THE CONSTITUTION DEPRIVES US OF THE POWER TO GRANT OR WITHOLD
TRIAL BY JURY DEPENDING UPON OUR ASSESSMENT OF THE SUBSTANTIALITY OF
THE PENALTY.  TO THE ARGUMENT THAT THE FRAMERS COULD NOT HAVE INTENDED
TO PROVIDE TRIAL BY JURY IN CASES INVOLVING ONLY "SMALL" FINES AND
IMPRISONMENT, THE RESPONSE OF JUSTICES MC REYNOLDS AND BUTLER IN
DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617, 633 - 634 (1937)
(SEPARATE OPINION), IS APT: 

" IN A SUIT AT COMMON LAW TO RECOVER ABOVE $20.00, A JURY TRIAL IS
ASSURED.  AND TO US, IT SEEMS IMPROBABLE THAT WHILE PROVIDING FOR THIS
PROTECTION IN SUCH A TRIFLING MATTER THE FRAMERS OF THE CONSTITUTION
INTENDED THAT IT MIGHT BE DENIED WHERE IMPRISONMENT FOR A CONSIDERABLE
TIME OR LIABILITY FOR FIFTEEN TIMES $20.00 CONFRONTS THE ACCUSED." 

I WOULD FOLLOW THE CLEAR COMMAND OF ART. III AND THE SIXTH AMENDMENT
AND REVERSE THE JUDGMENT AS TO LOCAL 70. 

/1/ AS INITIALLY ENACTED BY THE SENATE, SEC. 11 CONTAINED NO
"ARISING UNDER" LANGUAGE AND WOULD HAVE APPLIED IN ALL CRIMINAL
CONTEMPT PROCEEDINGS, WHETHER OR NOT INVOLVING AN INJUNCTION ISSUED IN
A LABOR DISPUTE.  SEE S. REP. NO. 163, 72D CONG., 1ST SESS., 23 (1932);
75 CONG. REC. 4510 - 4511, 4757 - 4761 (1932).  THE "ARISING UNDER"
LANGUAGE WAS ADDED BY THE HOUSE-SENATE CONFEREES TO RESTRICT THE SCOPE
OF SEC. 11 TO LABOR DISPUTES.  SEE ID., AT 6336 - 6337, 6450 

/2/ THIS CONSTRUCTION IS CONSISTENT WITH THE REMARK IN UNITED STATES
V. MINE WORDERS, 330 U.S. 258, 298 (1947), THAT "SEC.  11 IS NOT
OPERATIVE HERE, FOR IT APPLIES ONLY TO CASES 'ARISING UNDER THIS ACT,'
AND WE HAVE ALREADY HELD THAT THE RESTRICTION UPON INJUNCTIONS IMPOSED
BY THE ACT DO (SIC) NOT GOVERN THIS CASE."  AS THE ENTIRE SENTENCE
MAKES CLEAR, SEC. 11 WAS "NOT OPERATIVE" BECAUSE THE COURT HAD FOUND
THAT THE UNDERLYING DISPUTE BETWEEN THE GOVERNMENT AND THE MINE WORDERS
WAS NOT THE KIND OF "LABOR DISPUTE" TO WHICH THE NORRIS LA GUARDIA ACT
HAD BEEN ADDRESSED.  SEE 330 U.S., AT 274 - 280.  SEE ALSO ID., AT 328
330 (BLACK AND DOUGLAS, JJ., CONCURRING AND DISSENTING). 

/3/ WE DEAL HERE WITH CRIMINAL CONTEMPT PROCEEDINGS.  WHETHER SEC.
3692 AFFORDS TRIAL BY JURY IN CIVIL CONTEMPT PROCEEDINGS IS A QUESTION
NOT PRESENTED HERE AND ON WHICH, ACCORDINGLY, I EXPRESS NO IPINION. 

/4/ PETITIONER MUNIZ APPARENTLY DECIDED NOT TO RAISE THE
CONSTITUTIONAL ISSUE IN THIS COURT; OURGRANT OF CERTIORARI ON THE ISSUE
THUS EXTENDED ONLY TO LOCAL 70.  419 U.S. 992 (1974). 

/5/ E.G., BALDWIN V. NEW YORK, 399 U.S. 66, 74 - 76 (1970) (BLACK,
J., CONCURRING IN JUDGMENT); FRANK V. UNITED STATES, 395 U.S. 147, 159
160 (1969) (BLACK, J., DISSENTING).  SEE ALSO JOHNSON V. NEBRASKA, 419
U.S. 949 (1974) (DOUGLAS, J., DISSENTING FROM DENIAL OF CERTIORARI). 

/6/ AS NOTED IN MY DISSENTING OPINION IN CHEFF V. SCHNUCKENBERQ, 384
U.S. 373, 386 - 391 (1966), THE "PETTY OFFENSE" DOCTRINE BEGAN AS AN
EFFORT TO IDENTIFY OFFENSES THAT WERE BY THEIR NATURE "PETTY," AND THE
PUNISHMENT PRESCRIBED OR IMPOSED WAS ONE FACTOR TO BE CONSIDERED IN
CHARACTERIZING THE OFFENSE.  UNDER THE COURT'S CURRENT FORMULATION, THE
PENALTY IS OF CONTROLLING SIGNIFICANCE.  SEE CODISPOTI V. PENNSYLVANIA,
418 U.S. 506, 512 (1974). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE MARSHALL AND MR. JUSTICE
POWELL JOIN, DISSENTING. 

IN 1948 CONGRESS REPEALED SEC. 11 OF THE NORRIS-LA GUARDIA ACT, 47
STAT. 72, 29 U.S.C. SEC. 111 (1946 ED.), WHICH PROVIDED A RIGHT TO A
JURY TRIAL IN CASES OF CONTEMPT ARISING UNDER THAT ACT, AND ADDED SEC.
3692 TO TITLE 18 OF THE U.S.C.  BROADLY GUARANTEEING A JURY TRAIL "(IN
ALL CASES OF CONTEMPT ARISING UNDER THE LAWS OF THE UNITED STATES
GOVERNING THE ISSUANCE OF INJUNCTIONS OR RESTRAINING ORDERS IN ANY CASE
INVOLVING OR GROWING OUT OF A LABOR DISPUTE."  I CANNOT AGREE WITH THE
COURT'S CONCLUSION THAT THIS CONGRESSIONAL ACTION WAS WITHOUT ANY
SIGNIFICANCE AND THAT SEC. 3692 DOES NOT APPLY TO ANY CONTEMPT
PROCEEDINGS INVOLVING INJUNCTIONS THAT MAY BE ISSUED PURSUANT TO THE
NATIONAL LABOR RELATIONSHIP ACT, 49 STAT. 449, AS AMENDED, 29 U.S.C.
SEC. 151 ET SEQ.  ACCORDINGLY, I WOULD REVERSE THE JUDGMENT BEFORE US. 

THE CONTEMPT PROCEEDINGS IN THE PRESENT CASE AROSE OUT OF A DISPUTE
BETWEEN LOCAL 21 OF THE INTERNATIONAL TYPOGRAPHICAL UNION AND THE SAN
RAFAEL INDEPENDENT JOURNAL.  LOCAL 21 REPRESENTS THE INDEPENDENT
JOURNAL'S COMPOSING ROOM EMPLOYEES.  FOLLOWING EXPIRATION OF THE OLD
COLLECTIVE-BARGAINING AGREEMENT BETWEEN LOCAL 21 AND THE INDEPENDENT
JOURNAL, NEGOTIATIONS FOR A NEW AGREEMENT REACHED AN IMPASSE.  AS A
RESULT, LOCAL 21 INSTITUTED STRIKE ACTION AGAINST THE INDEPENDENT
JOURNAL.  SEE SAN FRANSICO TYPOGRAPHICAL UNION NO. 21, 188 N.L.R.B.
673, ENFORCED, 465 F.2D 53 (CA9).  THE PRIMARY STRIKE ESCALATED INTO
ILLEGAL SECONDARY BOYCOTT ACTIVITY, IN WHICH FOUR OTHER UNIONS,
INCLUDING THE PETITIONER LOCAL 70, PARTICIPATED.  THE NATIONAL LABOR
RELATIONS BOARD, THROUGH ITS REGIONAL DIRECTOR, OBTAINED AN INJUNCTION
PURSUANT TO SEC. 10(L) OF THE NATIONAL LABOR RELATIONS ACT, AS ADDED,
61 STAT. 149, 29 U.S.C. SEC. 160 (L), TO BRING A HALT TO THAT SECONDARY
ACTIVITY.  WHEN THE PROSCRIBED SECONDARY CONDUCT CONTINUED, APPARENTLY
IN WILLFUL DISOBEDIENCE OF THE SEC. 10 (L) INJUNCTION, CRIMINAL
CONTEMPT PROCEEDINGS WERE INSTITUED.  SEE ANTE, AT 456 - 457. 

SUCH CRIMINAL CONTEMPT PROCEEDINGS.  THE SECTION PROVIDES IN PERTINENT
PART: 

     " IN ALL CASES OF CONTEMPT ARISING UNDER THE LAWS OF THE
UNITED

  STATES GOVERNING THE ISSUANCES OF INJUCTIONS OR RESTRAINING

ORDERS IN ANY CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE,

  THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL BY

  AN IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CONTEMPT

  SHALL HAVE BEEN COMMITTED." 

CONTEMPT ARISING UNDER THE NORRIS-LA GUARDIA ACT.  BY ITS OWN TERMS THE
SEVERAL LAWS OF THE UNITED STATES GOVERNING THE ISSUANCE OF INJUNCTIONS
IN CASES OF A "LABOR DISPUTE."  SECTION 10(L) OF THE NATIONAL LABOR
RELATIONS ACT, WHICH AUTHORIZED THE INJUNCTION ISSUED BY THE DISTRICT
COURT, IS, IN THE CONTEXT OF THIS CASE, MOST ASSUREDLY ONE OF THOSE
LAW. 

APPROPRIATE DISTRICT COURT FOR INJUNCTIVE RELIEF PENDING FINAL BOARD
ADJUDICATION WHEN HE HAS "REASONALBE CAUSE" TO BELIEVE THAT A LABOR
ORGANIZATION OR ITS AGENTS HAVE ENGAGED IN CERTAIN SPECIFIED UNFAIR
LABOR PRACTICES.  /1/ ALTHOUGH NOT ALL UNFAIR LABOR PRACTICES
POTENTIALLY SUBJECT TO SEC. 10 (L) INJUNCTIONS NEED ARISE OUT OF A
"LABOR DISPUTE," BOTH THE PRIMARY STRIKE AND THE SECONDARY ACTIVITY IN
THIS CASE CONCERNED THE "TERMS OR CONDITIONS OF EMPLOYMENT" OF LOCAL 21
MEMBERS.  THUS, THE INJUNCTION AND SUBSEQUENT CONTEMPT PROCEEDINGS
CLEARLY INVOLVED A "LABOR DISPUTE" AS THAT TERM IS DEFINED IN THE
NORRIS-LA-GUARDIA ACT AND THE NATIONAL LABOR RELATIONS ACT.  /2/
ACCORDINGL, SEC. 10 (L), IS HERE A LAW GOVERNING THE ISSUANCE OF AN
INJUNCTION IN A CASE GROWING OUT OF A LABOR DISPUTE, AND THE CRIMINAL
CONTEMPT PROCEEDINGS AGAINST THE PETITIONERS CLEARLY COME WITHIN THE
EXPLICIT REACH OF SEC. 3692.  /3/ 

THERE IS NOTHING IN THE RATHER MEAGER LEGISLATIVE HISTORY OF SEC.
3692 TO INDICATE THAT, DESPITE THE COMPREHENSIVE LANGUAGE OF THE
COVERED BY THE NORRIS-LA GUARDIA ACT.  THE REVISERS DID NOT SAY THAT
SEC. 3692 WAS INTENDED TO BE MERELY A RECODIFICATION OF SEC. 11 OF THE
NORRIS-LA GUARDIA ACT.  /4/ RATHER, THE REVISERS SAID THAT THE SECTION
WAS "BASED ON" SEC. 11 AND THEN NOTED WITHOUT ADDITIONAL COMMENT THE
CHANGE IN LANGUAGE FROM REFERNCE TO SPECIFIC SECTIONS OF NORRIS-LA
GUARDIA TO THE MORE INCLUSIVE "LAWS OF THE UNITED STATES ...."  H.R.
REP. NO. 304, 80TH CONG., 1ST.  SESS., A.176.  IN CONTRAST, ALTHOUGH
THE RECODIFICATION OF 18 U.S.C. SEC. 402, DEALING WITH CONTEMPTS
CONSITUTING CRIMES, WAS ALSO "BASED ON" PRIOR LAW, THE REVISERS
SPECIFICALLY NOTED THAT "(IN TRANSFERRING THESE SECTIONS TO THIS TITLE
AND IN CONSOLIDATING THEM NUMEROUS CHANGES OF PHRASEOLOGY WERE NECESSAY
WHICH DO NOT, HOWEVER, CHANGE THERI MEANING OR SUBSTANCE." 

H.R. REP NO. 304, SUPRA, AT A30.  THE BRIEF LEGISLATIVE HISTORY OF
SEC. 3692 IS, ACCORDINGLY, COMPLETELY CONSISTENT WITH THE PLAIN MEANING
OF THE WORDS OF THAT SECTION. 

NOTHING IN SEC. 10 (L), OR INANY OTHER PROVISION OF THE NATIONAL
LABOR RELATIONS ACT, REQUIRES THAT SEC. 3692 BE GIBEN ANY DIFFERENT
MEANING IN CASES INVOLVING INJUNCTIONS ISSUED PURSUANT TO THE ACT.  TO
BE SURE, SEC. 10 (L) PROVIDES THAT, UPON THE FILING OF A BOARD PETITION
FOR A TEMPORARY INJUNCTION, "THE DISTRICT COURT SHALL HAVE JURISDICTION
TO GRANT SUCH INJUNCTIVE RELIEF OR REMPORARY RESTRAINING ORDER AS IT
DEEMS JUST AND PROPER, NOTWITHSTANDING ANY OTHER PROVISION OF LAW...." 
BUT REQUIRING A JURY TRIAL PRIOR TO FINDING A UNION OR UNION MEMBER IN
CRIMINAL CONTEMPT FOR VIOLATION OF A SEC. 10 (L) INJUNCTION IS ENTIRELY
COMPATIBLE WITH THAT PROVISION.  ALTHOUGH SUCH A READING OF SEC. 3692
PROVIDES PROCEDURAL PROTECTION TO THE ALLEGED CONTEMNOR, IT IN NO WAY
LIMITS THE JURISDICTION OF THE DISTRICT COURT TO GRANT AN INJUNCTION AT
THE REQUEST OF THE BOARD. 

SIMILARLY, SEC. 10 (H) DOES NOT INDICATE A CONGRESSIONAL INTENT TO
ELIMINATE THE JURY TRIAL REQUIREMENT FOR CRIMINAL CONTEMPT ARISING FROM
DISOBEDIENCE OF INJUNCTIONS ISSUED PURSUANT TO THE NATIONAL LABOR
RELATIONS ACT.  /5/ THAT SECTION PROVIDES IN PART THAT "(WHEN GRANTING
APPROPRIATE J RITD CTION 2 COURTS S TTI G IN EQUITY SHALLNOT C LIMITED
JURISDICTION OF COURTS SITTING IN EQUITY SHALLNOT BE LIMITED BY THE ACT
ENTITLED ' AN ACT TO AMEND THE JUDICIAL CODE AND TO DEFINE AND LIMIT
THE JURISDICTION OF COURTS SITTING IN EQUITY, AND FOR OTHER PURPOSES,'
APPROVED MARCH 23, 1932 (U.S.C., SUPP. VII, TITLE 29, SECS. 101 -
115)." 

ALTHOUGH SEC. 10 (H) THUS CITES PARENTHETICALLY ALL THE SECTIONS OF
THE NORRIS-LA GUARDIA ACT, INCLUDING SEC. 11'S JURY TRIAL PROVISION,
WHICH WAS CODIFIED AT 29 U.S.C. SEC. 111, IT DOES SO SOLELY AS AN
ADDITIONAL MEANS OF IDENTIFYING THE ACT.  SUBSTANTIVELY SEC. 10 (H),
LIKE SEC. 10 (L), PROVIDES ONLY THAT THE JURISDICTION OF EQUITY COURTS
SHALL NOTBE LIMITED BY THE NORRIS-LA GUARDIA ACT.  BUT NORRIS-LA
GUARDIA, AS ITS TITLE INDICATES, WAS ENACTED TO LIMIT JURISDICTION "AND
FOR OTHER PURPOSES."  SECTION 11, UPON WHICH SEC. 3692 WAS BASED, WAS
NOT CONCERNED WITH JURISDICTION; IT PROVIDED PROCEDURAL PROTECTIONS TO
ALLEGED CONTEMNORS, ONE OF THE ACT'S "OTHER PURPOSES." 

IN CONTRAST, WHEN CONGRESS PROVIDED FOR THE ISSUANCE OF INJUNTIONS
DURING NATIONAL EMERGENCIES AS PART OF THE TAFT-HARTLEY ACT, 29 U.S.C.
SEC. 176 - 180, IT DID NOT MERELY STATE THAT THE JURISDICTION OF
DISTRICT COURTS UNDER THOSE CIRCUMSTANCES IS NOT LIMITED BY NORRIS-LA
GUARDIA.  RATHER, IT PROVIDED SIMPLY AND BROADLY THAT ALL OF THE
PROVISIONS OF THAT ACT ARE INAPPLICABLE.  2.  U.S.C. SEC. 178 (B). 
/6/ 

IF, CONTRARY TO THE ABOVE DISCUSSION, THERE IS ANY AMBIGUITY ABOUT
SEC. 3692, IT SHOULD NONETHELESS BE REAS AS EXTENDING A RIGHT TO AJURY
TRIAL IN THE CRIMINAL CONTEMPT PROCEEDINGS NOW BEFORE US UNDER THE
FIRMLY ESTABLISHED CANON OF STATUTORY CONSTRUCTION MANDATING THAT ANY
AMBIGUITY CONCERNING CRIMINAL STATUTES IS TO BE RESOLVED IN FAVOR OF
THE ACCUSED.  SEE, E.G., UNITED STATES V. BASS, 404 U.S. 336, 347;
REWIS V. UNITED STATES, 401 U.S. 808, 812; SMITH V. UNITED STATES, 360
U.S. 1, 9.  ON THE OTHER HAND, THERE IS NO SOUND POLICY ARGUMENT FOR
LIMITING THE SCOPE OF SEC. 3692.  A GUARANTEE OF THE RIGHT TO A JURY
TRIAL IN CASES OF CRIMINAL CONTEMPT FOR VIOLATION OF INJUNCTIONS ISSUED
PURSUANT TO SEC. 10 (L) DOES NOT RESTRICT POWER OF THE DISTRICT COURT
TO GRANT, TEMPORARY INJUNCTIVE RELIEF TO BRING AN IMMEDIATE HALT TO
SECONDARY BOYCOTTS AND RECOGNITIONAL PICKETING PENDING ADJUNDICATION OF
UNFAIR LABOR PRACTICE CHARGES BEFORE THE BOARD.  NOR DOES IT INTERFERE
WITH THE AUTHORITY OF THE DISTRICT COURT TO INUSRE PROMPT COMPLIANCE
WITH ITS INJUNCTION THROUGH THE USE OF COERCIVE CIVIL CONTEMPT
SANCTIONS.  /7/ INDEED, CONTRUING SEC. 3692 AS IT IS WRITTEN, SO AS TO
INCLUDE THIS KIND OF AN INJUNCTION ISSUED PURSUANT TO THE NATIONAL
LABOR RELATIONS ACT, WOULD NOT EVEN AFFECT THE POWER OF THE COURT TO
IMPOSE CRIMINAL CONTEMPT SANCTIONS. 

IT WOULD ONLY REQUIRE THAT PRIOR TO IMPOSITION OF CRIMINAL
PUNISHMENT FOR VIOLATION OF A COURT ORDER THE NECESSARY FACTS MUST BE
FOUND BY AN IMPARTIAL JURY, RATHER THAN BY THE JUDGE WHOSE ORDER HAS
BEEN VIOLATED.  /8/ 

IN SUM, THE PLAIN LANGUAGE OF SEC. 3692 AND THE ABSENCE OF ANY
MEANINGFUL CONTRADICTORY LEGISLATIVE HISTORY, TOGETHER WITH THE
ESTABLISHED METHOD OF CONSTRUING CRIMINAL STATUTES, REQUIRE THAT SEC.
3692 BE INTERPRETED TO INCLUDE A RIGHT TO A JURY TRIAL IN CRIMINAL
CONTEMPT PROCEEDINGS FOR VIOLATION OF SEC. 10 (L) INJUNCTIONS. 
ACCORDINGLY, I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

/1/ SECTION 10 (L), AS ENACTED IN 1947, 61 STAT. 149, PROVIDED THAT
WHENEVER THE BOARD'S REGIONAL OFFICIAL HAS "REASONABLE CAUSE" TO
BELIEVE THE TRUTH OF A CHARGE OF ILLEGAL SECONDARY BOYCOTTING OR
MINORITY PICKETING, THE OFFICIAL "SHALL, ON BEHALF OF THE BOARD,
PETITION A DISTRICT COURT FOR APPROPRIATE INJUNCTIVE RELIEF PENDING
FINAL BOARD ADJUDICATION.  ONCE REASONABLE CAUSE IS FOUND, A BOARD
PETITION FOR TEMPORARY RELIEF UNDER SEC. 10 (L) IS MANDATORY.  SEE S.
REP. NO. 105, 80TH CONG., 1ST SESS., 8, 27.  CONGRESS IN 1959 ADDED
CHARGES OF ILLEGAL HOT CARGO AGREEMENTS AND RECOGNITIONAL PICKETING TO
THE MANDATORY INJUNCTION PROVISION OF SEC. 10 (L).  73 STAT. 544. 

/2/ " LABOR DISPUTE" AS DEFINED FOR THE PURPOSE OF SEC. 11 OF THE
NORRIS-LA GUARDIA ACT, UPON WHICH SEC. 3692 WAS BASED, INCLUDED "ANY
CONTROVERSY CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING
THE ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING,
MAINTAINING, HANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OR
EMPLOYMENT, REGARDLESS OF WHETHER OR NOT THE DISPUTANTS STAND IN THE
PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE."  47 STAT. 73.  SECTION 2
(9) OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. SEC. 152 (9),
DEFINES "LABOR DISPUTE" IN VIRTUALLY IDENTICAL LANGUAGE. 

/3/ WHILE THE RESPONDENT CONCEDES THAT UNFAIR LABOR PRACTICES OFTEN
ARISE OUT OF A "LABOR DISPUTE," HE ARGUES THAT THE NATIONAL LABOR
RELATIONS ACT IS NOT ESSENTIALLY A LAW "GOVERNING THE ISSUANCE OF
INJUNCTIONS OR RESTRAINING ORDERS" IN CASES "INVOLVING OR GROWING OUT
OF A LABOR DISPUTE."  ALTHOUGH IT MAY BE TRUE THAT NOT ALL PROVISIONS
OF THE ACT AUTHORIZING RESTRAINING ORDERS ARE PROPERLY CLASSIFIED AS
SUCH LAWS, IT IS CLEAR THAT CONGRESS CONCLUDED THAT AT LEAST SOME
PROVISIONS WERE.  OTHERWISE, THERE WOULD HAVE BEEN NO REASON FOR
CONGRESS TO HAVE SPECIFICALLY EXEMPTED THE JURISDICTION OF COURTS
"SITTING IN EQUITY"  UNDER SEC. 10 OF THE ACT FROM THE LIMITATIONS OF
NORRIS-LA GUARDIA, WHICH APPLY ONLY IN CASES INVOLVING REQUESTS FOR
INJUNCTIVE RELIEF GROWING OUT OF A LABOR DISPUTE.  SEE IN RE UNION
NACIONAL DE TRABAJADORES, 502 F.2D 113, 118 (CA1). 

/4/ ANY SUCH INTENTION WOULD BE INCONSISTENT WITH THE DECISION TO
REPEAL SEC. 11 AND TO REPLACE IT WITH A BROADLY WORDED PROVISION IN THE
TITLE OF THE U.S.C. DEALING GENERALLY WITH " CRIMES AND CRIMINAL
PROCEDURE." 

/5/ IT MAY BE QUESTIONED WHETHER SEC. 10 (H) HAS ANY RELEVANCE AT
ALL TO THE ISSUE BEFORE US.  AS ENACTED IN 1935, SEC. 10 (H) WAS
CONCERNED SOLELY WITH THE JURISDICTION OF THE COURTS OF APPEALS (AND
DISTRICT COURTS "IF ALL THE ... COURTS OF APPEALS TO WHICH APPLICATION
MAY BE MADE ARE IN VACATION," SEC. 10 (E)) TO MODIFY AND ENFORCE BOARD
ORDERS FOLLOWING AN ADMINISTRATIVE HEARING AND ENTRY OF FINDINGS BY THE
BOARD.  SECTION 10 (H) WAS RETAINED WITHOUT SIGNIFICANT CHANGE AT THE
TIME OF THE 1947 TAFT-HARTLEY AMENDMENTS TO THE NATIONAL LABOR
RELATIONS ACT:  " SECTIONS 10 (G), (H), AND (I) OF THE PRESENT ACT,
CONCERNING THE EFFECT THE BOARD'S ORDERS OF ENFORCEMENT AND REVIEW
PROCEEDINGS, MAKING INAPPLICABLE THE PROVISIONS OF THE NORRIS-LA
GUARDIA ACT IN PROCEEDINGS BEFORE THE COURTS, WERE UNCHANGED EITHER BY
THE HOUSE BILL OR BY THE SENATE AMENDMENT, AND ARE CARRIED INTO THE
CONFERENCE AGREEMENT."  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS.,
57.  THE SECTION WOULD THUS SEEM AT THE MOST TO BE OF LIMITED RELEVANCE
IN DETERMINING CONGRESSIONAL INTENT CONCERNING THE PROCEDURES TO BE
USED IN DISTRICT COURTS ISSUING AND ENFORCING SEC. 10 (L) INJUNCTIONS
PRIOR TO FINAL ADJUDICATION OF UNFAIR LABOR PRACTICE CHARGES BY THE
BOARD. 

/6/ THE PRINCIPAL PIECE OF LEGISLATIVE HISTORY OFFERED AS EVIDENCE
OF AN AFFIRMATIVE CONGRESSIONAL INTENT TO FREE FROM THE REQUIREMENTS OF
NORRIS-LA GUARDIA CRIMINAL CONTEMPT PROCEEDINGS FOR VIOLATIONS OF A
SEC. 10 (L) INJUNCTION IS A STATEMENT BY SENATOR BALL MADE DURING
DEBATE OVER THE SENATOR'S PROPOSED AMENDMENT TO THAT SECTION.  SEE 93
CONG. REC. 4834.  PARTICULARLY IN VIEW OF THE COMPLETE ABSENCE OF ANY
SUPPORT FOR SENATOR BALL'S EXPANSIVE INTERPRETATION OF SEC. 10 (L) IN
THE COMMITTEE AND CONFERENCE REPORTS, SEE, E. G., S. REP. NO. 105, 80TH
CONG., 1ST SESS., 57, THAT INDIVIDUAL EXPRESSION OF OPINION IS WITHOUT
SIGNIFICANCE WEIGHT IN THE INTERPRETATION OF THE STATUTE.  MC CAUGHN V.
HERSHEY CHOCOLATE CO., 283 U.S. 488, 493 - 494; LAPINA V. WILLIAMS 232
U.S. 78, 90. 

/7/ ON ITS FACE SEC. 3692, WHICH GUARANTEES TO "THE ACCUSED" THE
RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY, IN LANGUAGE
IDENTICAL TO THE SIXTH AMENDMENT'S GUARANTEE OF A JURY TRIAL IN
CRIMINAL CASES, APPEARS TO BE LIMITED TO TRIALS FOR CRIMINAL CONTEMPT. 
THAT CONSTRUCTION IS ALSO CONSISTENT WITH THE DECISION OF CONGRESS TO
PLACE THE PROVISION IN TITLE 18, DEALING WITH CRIMES AND CRIMINAL
PROCEDURE.  MOREOVER, WHILE IT IS CLEAR THAT A TRIAL FOR CRIMINAL
CONTEMPT IS AN INDEPENDENT PROCEEDING, "NO PART OF THE ORIGINAL CAUSE,"
MICHAELSON V. UNITED STATES EX REL CHICAGO, ST. P., M. & O.R. CO., 266
U.S. 42, 64, CIVIL CONTEMPT PROCEEDINGS TO INSURE COMPLIANCE WITH AN
INJUNCTION ARE EXTENSIONS OF THE ORIGINAL EQUITABLE CAUSE OF ACTION. 
SEE ID., AT 64 - 65.  IT IS THEREFORE ARGUABLE THAT SEC. 10 (L)'S
EXLICIT STATEMENT THAT THE "JURISDICTION" OF THE DISTRICT COURTS SHALL
NOT BE AFFECTED BY "ANY OTHER PROVISIONS OF LAW" RENDERS INAPPLICABLE
ANY OTHERWISE RELEVANT STATUTORY REQUIREMENT OF A JURY TRIAL FOR CIVIL
CONTEMPTS.  SEE IN RE UNION NACTIONAL DE TRABAJADORES, 502 F.2D, AT 119
- 121.     /8/ ALTHOUGH INJUNCTIVE RELIEF UNDER SEC. 10 (J) AND (L) IS
SOUGHT BY THE BOARD ACTING ON BEHALF ON THE PUBLIC RATHER THAN TO
VINDICATE PRIVATE ECONOMIC INTERESTS, THIS FACT HAS LITTLE SIGNIFICANCE
IN CONSIDERING THE POLICY JUSTIFICATIONS FOR REQUIRING A JURY TRIAL IN
CRIMINAL CONTEMPT PROCEEDINGS.  REGARDLESS OF WHETHER THE BOARD OR AN
EMPLOYER HAS SOUGHT THE INJUNCTION, IN THE ABSENCE OF A JURY TRIAL THE
JUDGE WHO GRANTED THE ORDER WILL BE GIVEN COMPLETE AUTHORITY TO IMPOSE
CRIMINAL PUNISHMENT IF HE FINDS THAT HIS INJUNCTION HAS BEEN
DELIBERATELY DISBOEYED.  THE EXISTENCE OF THIS UNBRIDLED POWER IN
DISTRICT COURT JUDGES PRIOR TO 1932 WAS ONE OF THE PRINCIPAL FACTORS
LEADING TO ENACTMENT OF THE NORRIS-LA GUARDIA ACT, AND IN PARTICULAR
PASSAGE OF THE SEC. 11 JURY TRIAL REQUIREMENT.  SEE GENERALLY A. COX &
D. BOK, CASES AND MATERIALS ON LABOR LAW 75 - 76 (7TH ED.). 
ACCORDINGLY, THE ACCOMMODATION OF SEC. 10 (L) AND SEC. 3692 "WHICH WILL
GIVE THE FULLEST POSSIBLE EFFECT TO THE CENTRAL PURPOSES OF BOTH
(STATUTES)," SINCLAIR REFINING CO. V. ATKINSON, 370 U.S. 195, 216
(BRENNAN, J., DISSENTING), IS TO RECOGNIZE THE BOARD'S POWER TO SEEK
TEMPORARY INJUNCTIVE RELIEF UNDER SEC. 10 (L) WITHOUT REGARD TO THE
LIMITATIONS OF NORRIS-LA GUARDIA, AND TO PERMIT THE ISSUING COURT TO
COERCE OBEDIENCE THROUGH CIVIL CONTEMPT PROCEEDINGS.  BUT WHEN THE
COURT DEEMS IT NECESSARY TO IMPOSE AFTER-THE-FACT PUNISHMENT THROUGH
CRIMINAL CONTEMPT PROCEEDINGS, SEC. 3692 MUST BE READ TO MEAN WHAT IT
SAYS -- THE ACCUSED CONTEMNOR HAS THE RIGHT TO A JURY TRIAL.  SEE IN RE
UNION NACIONAL DE TRABAJADORES, SUPRA, AT 121. 

VICTOR J. VAN BOURG ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WAS SHELDON OTIS. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE ALLAN ABBOT TURTTLE, PETER G. NASH, JOHN S. IRVING,
PATRICK HARDIN, AND NORTON J. COME. 

(BRIEFS OF AMICI CURIAE URGING REVERAL WERE FILED BY FRANK J.
DONNER, WEINN NEWMAN, RUTH WEYAND, HAROLD I. CAMMER, NORMAN LEONARD,
AND I. PHILIP SIPSER FOR THE UNITED ELECTRICAL, RADIO, AND MACHINE
WORKERS OF AMERICA ET AL.; BY JOESPH A. YABLONKSI AND DANIEL B. EDELMAN
FOR THE UNITED MINE WORKERS OF AMERICA; BY NANCY STERNS FOR THE UNION
NACIONAL DE TRABAJADORES; AND BY JONATHAN SHAPIRO FOR THE LABOR
COMMITTEE OF THE NACIONAL LAWYERS GUILD. 

NATHAN R. BERKE FILED A BRIEF FOR CALIFORNIA NEWSPAPERS, INC., DBA
SAN RAFAEL INDEPENDENT JOURNAL, AS AMICUS CURIAE URGING AFFIRMANCE.) 
..END :


















WARTH V. SELDIN, 422 US 490 


       WARTH ET. AL. V. SELDIN ET. AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 SECOND CIRCUIT

        NO. 73 - 2024.  ARGUED MARCH 17, 1975 -- DECIDED JUNE 25,

           1975; 495 F.2D 1187, AFFIRMED. 


THIS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES WAS
BROUGHT BY CERTAIN OF THE PETITIONER AGAINST RESPONDENT TOWN OF
PENFIELD (A SUBBURB OF ROCHESTER, N.Y.), AND RESPONDENT MEMBERS OF
PENFIELD'S ZONING, PLANNING, AND TOWN BORADS, CLAIMING THAT THE TOWN'S
ZONING ORDINANCE, BY ITS TERMS AND AS ENFORCED, EFFECTIVELY EXCLUDED
PERSONS OF LOW AND MODERATE INCOME FROM LIVING IN THE TOWN, IN
VIOLATION OF PETITIONERS' CONSTITUTIONAL RIGHTS AND OF 42 U.S.C. SEC.
1981, 1982, AND 1983.  PETITIONERS CONSIST OF BOTH THE ORIGINAL
PLAINTIFFS -- (1) METRO-ACT OF ROCHESTER, A NOT-FOR-PROFIT CORPORATION
AMONG WHOSE PURPOSES IS FOSTERING ACTION TO ALLEVIATE THE HOUSING
SHORTAGE FOR LOW- AND MODERATE-INCOME PERSONS IN THE ROCHESTER AREA;
(2) SEVERAL INDIVIDUAL ROCHESTER TAXPAYERS; AND (3) SEVERAL ROCHESTER
AREA RESIDENTS WITH LOW OR MODERATE INCOMES WHO ARE ALSO MEMBERS OF
MINORITY RACIAL OR ETHNIC GROUPS -- AND ROCHESTER HOME BUILDERS
ASSOCIATION (HOME BUILDERS), EMBRACING A NUMBER OF RESIDENTIAL
CONSTRUCTION FIRMS IN THE ROCHESTER AREA, WHICH UNSUCCESSFULLY SOUGHT
TO INTERVENE AS A PARTY-PLAINTIFF, AND THE HOUSING COUNCIL IN THE
MONROE COUNTY AREA (HOUSING COUNCIL), A NOT-FOR-PROFIT CORPORATION
CONSISTING OF A NUMBER OF ORGANIZATIONS INTERESTED IN HOUSING PROBLEMS,
WHICH WAS UNSUCCESSFULLY SOUGHT TO BE ADDED AS A PARTY-PLAINTIFF.  THE
DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND, INTER ALIA, THAT
PETITIONERS LACKED STANDING TO PROSECUTE THE ACTION, AND THE COURT OF
APPEALS AFFIRMED.  HELD:  WHETHER THE RULES OF STANDING ARE CONSIDERED
AS ASPECTS OF THE CONSTITUTIONAL REQUIREMENT THAT A PLAINTIFF MUST MAKE
OUT A "CASE OR CONTROVERSY" WITHIN THE MEANING OF ART. III, OR, APART
FROM SUCH REQUIREMENT, AS PRUDENTIAL LIMITATIONS ON THE COURTS' ROLE IN
RESOLVING DISPUTES INVOLVING "GENERALIZED GRIEVANCES" OR THIRD PARTIES'
LEGAL RIGHTS OR INTERESTS, NONE OF THE PETITIONERS HAS MET THE
THRESHOLD REQUIREMENT OF SUCH RULES THAT TO HAVE STANDING A COMPLAINANT
MUST CLEARLY ALLEGE FACTS DEMONSTRATING THAT HE IS A PROPER PARTY TO
INVOKE JUDICIAL RESOLUTION OF THE DISPUTE AND THE EXERCISE OF THE
COURT'S REMEDIAL POWERS.  PP. 498 - 518. 

(A) AS TO PETITIONER ROCHESTER RESIDENTS WHO ASSERT STANDING AS
PERSONS OF LOW OR MODERATE INCOME AND, COINCIDENTALLY, AS MEMBERS OF
MINORITY RACIAL OR ETHNIC GROUPS, THE FACTS ALLEGED FAIL TO SUPPORT AN
ACTIONABLE CAUSAL RELATIONSHIP BETWEEN PENFIELD'S ZONING PRACTICES AND
THESE PETITIONERS' ALLEGED INJURY.  A PLAINTIFF WHO SEEKS TO CHALLENGE
EXCLUSIONARY ZONING PRACTICES MUST ALLEGE SPECIFIC, CONCRETE FACTS
DEMONSTRATING THAT SUCH PRACTICES HARM HIM, AND THAT HE PERSONALLY
WOULD BENEFIT IN A TANGIBLE WAY FROM THE COURT'S INTERVENTION.  HERE,
THESE PETITIONERS RELY ON LITTLE MORE THAN THE REMOTE POSSIBILITY,
UNSUBSTANTIATED BY ALLEGATIONS OF FACT, THAT THEIR SITUATION MIGHT HAVE
BEEN BETTER HAD RESPONDENTS ACED OTHERWISE, AND MIGHT IMPROVE WERE THE
COURT TO AFFORD RELIEF.  PP.  502 - 508. 

(B) WITH RESPECT TO PETITIONERS WHO ASSERT STANDING ON THE BASIS OF
THEIR STATUS AS ROCHESTER TAXPAYERS, CLAIMING THAT THEY ARE SUFFERING
ECONOMIC INJURY THROUGH INCREASED TAXES RESULTING FROM PENFIELD'S
ZONING PRACTICES HAVING FORCED ROCHESTER TO PROVIDE MORE TAX-ABATED LOW
OR MODERATE-COST HOUSING THAN IT OTHERWISE WOULD HAVE DONE, THE LINE
OF CAUSATION BETWEEN PENFIELD'S ACTIONS AND SUCH INJURY IS NOT
APPARENT.  BUT EVEN ASSUMING THAT THESE PETITIONERS COULD ESTABLISH
THAT THE ZONING PRACTICES HARM THEM, THE BASIS OF THEIR CLAIM IS THAT
THE PRACTICES VIOLATE THE CONSTITUTIONAL AND STATUTORY RIGHTS OF THIRD
PARTIES -- PERSONS OF LOW AND MODERATE INCOME WHO ALLEGEDLY ARE
EXCLUDED FROM PENFIELD.  HENCE, THEIR CLAIM FALLS SQUARELY WITHIN THE
PRUDENTIAL STANDING RULE THAT NORMALLY BARS LITIGANTS FROM ASSERTING
THE RIGHTS OR LEGAL INTERESTS OF OTHERS IN ORDER TO OBTAIN RELIEF FROM
INJURY TO THEMSELVES.  PP. 508 - 510. 

(C) PETITIONER METRO-ACT'S CLAIMS TO STANDING AS A ROCHESTER
TAXPAYER AND ON BEHALF OF ITS MEMBERS WHO ARE ROCHESTER TAXPAYERS OR
PERSONS OF LOW OR MODERATE INCOME, ARE PRECLUDED FOR THE REASONS
APPLYING TO THE DENIAL OF STANDING TO THE INDIVIDUAL PETITIONER
ROCHESTER TAXPAYERS AND PERSONS OF LOW AND MODERATE INCOME.  IN
ADDITION, WITH RESPECT TO METRO-ACT'S CLAIM TO STANDING BECAUSE 9% OF
ITS MEMBERSHIP IS COMPOSED OF PENFIELD RESIDENTS, PRUDENTIAL
CONSIDERATIONS STRONGLY COUNSEL AGAINST ACCORDING SUCH RESIDENTS OR
METRO-ACT STANDING, WHERE THE COMPLAINT IS THAT THEY HAVE BEEN HARMED
INDIRECTLY BY THE EXCLUSION OF OTHERS, THUS ATTEMPTING, IN THE ABSENCE
OF A SHOWING OF ANY EXCEPTION ALLOWING SUCH A CLAIM, TO RAISE THE
PUTATIVE RIGHTS OF THIRD PARTIES.  TRAFFICANTE V. METROPOLITAN LIFE
INS., 409 U.S. 205, DISTINGUISHED.  PP. 512 - 514. 

(D) PETITIONER HOME BUILDERS, WHICH ALLEGES NO MONETARY INJURY TO
ITSELF, HAS NO STANDING TO CLAIM DAMAGES ON BEHALF OF ITS MEMBERS,
SINCE WHATEVER INJURY MAY HAVE BEEN SUFFERED IS PECULIAR TO THE
INDIVIDUAL MEMBER CONCERNED, THUS REQUIRING INDIVIDUALIZED PROOF OF
BOTH THE FACT AND EXTENT OF INJURY AND INDIVIDUAL AWARDS.  NOR DOES
HOME BUILDERS HAVE STANDING TO CLAIM PROSPECTIVE RELIEF, ABSENT ANY
ALLEGATION OF FACTS SUFFICIENT TO SHOW THE EXISTENCE OF ANY INJURY TO
MEMBERS OF SUFFICIENT IMMEDIACY AND RIPENESS TO WARRANT JUDICIAL
INTERVENTION.  PP. 514 - 516. 

(E) PETITIONER HOUSING COUNCIL HAS NO STANDING, WHERE THE COMPLAINT
AND RECORD DO NOT INDICATE THAT ANY OF ITS MEMBERS, WITH ONE EXCEPTION,
HAS MADE ANY EFFORT INVOLVING PENFIELD, HAS TAKEN ANY STEPS TOWARD
BUILDING THERE, OR HAD ANY DEALINGS WITH RESPONDENTS.  WITH RESPECT TO
THE ONE EXCEPTION, THIS PETITIONER AVERRED NO BASIS FOR INFERRING THAT
AN EARLIER CONTROVERSY BETWEEN IT AND RESPONDENTS REMAINED A LIVE,
CONCRETE DISPUTE.  PP. 516 - 517. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, BLACKMUN, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, POST, P. 518.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH WHITE AND MARSHALL, JJ., JOINED, POST, P.
519. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, VARIOUS ORGANIZATIONS AND INDIVIDUALS RESIDENT IN THE
ROCHESTER, N.Y., METROPOLITAN AREA, BROUGHT THIS ACTION IN THE DISTRICT
COURT FOR THE WESTERN DISTRICT OF NEW YORK AGAINST THE TOWN OF
PENFIELD, AN INCORPORATED MUNICIPALITY ADJACENT TO ROCHESTER, AND
AGAINST MEMBERS OF PENFIELD'S ZONING, PLANNING, AND TOWN BOARDS. 
PETITIONERS CLAIMED THAT THE TOWN'S ZONING ORDINANCE, BY ITS TERMS AND
AS ENFORCED BY THE DEFENDANT BOARD MEMBERS, RESPONDENTS HERE,
EFFECTIVELY EXCLUDED PERSONS OF LOW AND MODERATE INCOME FROM LIVING IN
THE TOWN, IN CONTRAVENTION OF PETITIONERS' FIRST, NINTH, AND FOURTEENTH
AMENDMENT RIGHTS AND IN VIOLATION OF 42 U.S.C. SEC. 1981, 1982, AND
1983.  THE DISTRICT COURT DISMISSED THE COMPLAINT AND DENIED A MOTION
BY PETITIONER ROCHESTER HOME BUILDERS ASSOCIATION, INC., FOR LEAVE TO
INTERVENE AS PARTY-PLAINTIFF.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT AFFIRMED, HOLDING THAT NONE OF THE PLAINTIFFS, NOR HOME
BUILDERS ASSOCIATION, HAD STANDING TO PROSECUTE THE ACTION.  495 F.2D
1187 (1974).  WE GRANTED THE PETITION FOR CERTIORARI.  419 U.S. 823
(1974).  FOR REASONS THAT DIFFER IN CERTAIN RESPECTS FROM THOSE UPON
WHICH THE COURT OF APPEALS RELIED, WE AFFIRM. 

        I 

PETITIONERS METRO-ACT OF ROCHESTER, INC., AND EIGHT INDIVIDUAL
PLAINTIFFS, ON BEHALF OF THEMSELVES AND ALL PERSONS SIMILARLY SITUATED,
/1/ FILED THIS ACTION ON JANUARY 24, 1972, AVERRING JURISDICTION IN THE
DISTRICT COURT UNDER 28 U.S.C. SEC 1331 AND 1343.  THE COMPLAINT
IDENTIFIED METRO-ACT AS A NOT-FOR-PROFIT NEW YORK CORPORATION, THE
PURPOSES OF WHICH ARE "TO ALERT ORDINARY CITIZENS TO PROBLEMS OF SOCIAL
CONCERN;. . . TO INQUIRE INTO THE REASONS FOR THE CRITICAL HOUSING
SHORTAGE FOR LOW AND MODERATE INCOME PERSONS IN THE ROCHESTER AREA AND
TO URGE ACTION ON THE PART OF CITIZENS TO ALLEVIATE THE GENERAL HOUSING
SHORTAGE FOR LOW AND MODERATE INCOME PERSONS."  /2/  PLAINTIFFS VINKEY,
REICHERT, WARTH, AND HARRIS WERE DESCRIBED AS RESIDENTS OF THE CITY OF
ROCHESTER, ALL OF WHOM OWNED REAL PROPERTY IN AND PAID PROPERTY TAXES
TO THAT CITY.  /3/ PLAINTIFF ORTIZ, "A CITIZEN OF SPANISH/ PUERTO RICAN
EXTRACTION," APP. 7, ALSO OWNED REAL PROPERTY IN AND PAID TAXES TO
ROCHESTER.  ORTIZ, HOWEVER, RESIDED IN WAYLAND, N.Y., SOME 42 MILES
FROM PENFIELD WHERE HE WAS EMPLOYED.  /4/ THE COMPLAINT DESCRIBED
PLAINTIFFS BROADNAX, REYES, AND SINKLER AS RESIDENTS OF ROCHESTER AND
"PERSONS FITTING WITHIN THE CLASSIFICATION OF LOW AND MODERATE INCOME
AS HERINAFTER DEFINED...."  /5/ IBID.  ALTHOUGH THE COMPLAINT DOES NOT
EXPRESSLY SO STATE, THE RECORD SHOWS THAT BROADNAX, REYES, AND SINKLER
ARE MEMBERS OF ETHNIC OR RACIAL MINORITY GROUPS:  REYES IS OF PUERTO
RICAN ANCESTRY; BROADNAX AND SINKLER ARE NEGROES. 

PETITIONERS' COMPLAINT ALLEGED THAT PENFIELD'S ZONING ORDINANCE,
ADOPTED IN 1962, HAS THE PURPOSE AND EFFECT OF EXCLUDING PERSONS OF LOW
AND MODERATE INCOME FROM RESIDING IN THE TOWN.  IN PARTICULAR, THE
ORDINANCE ALLOCATES 98% OF THE TOWN'S VACANT LAND TO SINGLE-FAMILY
DETACHED HOUSING, AND ALLEGEDLY BY IMPOSING UNREASONABLE REQUIREMENTS
RELATING TO LOT SIZE, SETBACK, FLOOR AREA, AND HABITABLE SPACE, THE
ORDINANCE INCREASES THE COST OF SINGLE-FAMILY DETACHED HOUSING BEYOND
THE MEANS OF PERSONS OF LOW AND MODERATE INCOME.  MOREOVER, ACCORDING
TO PETITIONERS, ONLY 0.3% OF THE LAND AVAILABLE FOR RESIDENTIAL
CONSTRUCTION IS ALLOCATED TO MULTIFAMILY STRUCTURES (APARTMENTS,
TOWNHOUSES, AND THE LIKE), AND EVEN ON THIS LIMITED SPACE, HOUSING FOR
LOW- AND MODERATE- INCOME PERSONS IS NOT ECONOMICALLY FEASIBLE BECAUSE
OF LOW DENSITY AND OTHER REQUIREMENTS.  PETITIONERS ALSO ALLEGED THAT
"IN FURTHERANCE OF A POLICY OF EXCLUSIONARY ZONING," ID., AT 22, THE
DEFENDANT MEMBERS OF PENFIELD'S TOWN, ZONING, AND PLANNING BOARDS HAD
ACTED IN AN ARBITRARY AND DISCRIMINATORY MANNER:  THEY HAD DELAYED
ACTION ON PROPOSALS FOR LOW- AND MODERATE-COST HOUSING FOR INORDINATE
PERIODS OF TIME; DENIED SUCH PROPOSALS FOR ARBITRARY AND INSUBSTANTIAL
REASONS; REFUSED TO GRANT NECESSARY VARIANCES AND PERMITS, OR TO ALLOW
TAX ABATEMENTS; FAILED TO PROVIDE NECESSARY SUPPORT SERVICES FOR LOW-
AND MODERATE-COST HOUSING PROJECTS; AND HAD AMENDED THE ORDINANCE TO
MAKE APPROVAL OF SUCH PROJECTS VIRTUALLY IMPOSSIBLE. 

IN SUM, PETITIONERS ALLEGED THAT, IN VIOLATION OF THEIR "RIGHTS,
PRIVILEGES AND IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS OF THE
UNITED STATES," ID., AT 17, THE TOWN AND ITS OFFICIALS HAD MADE
"PRACTICALLY AND ECONOMICALLY IMPOSSIBLE THE CONSTRUCTION OF SUFFICIENT
NUMBERS OF LOW AND MODERATE INCOME ... HOUSING IN THE TOWN OF PENFIELD
TO SATISFY THE MINIMUM HOUSING REQUIREMENTS OF BOTH THE TOWN OF
PENFIELD AND THE METROPOLITAN ROCHESTER AREA ....  /6/ PETITIONERS
ALLEGED, MOREOVER, THAT BY PRECLUDING LOW- AND MODERATE-COST HOUSING,
THE TOWN'S ZONING PRACTICES ALSO HAD THE EFFECT OF EXCLUDING PERSONS OF
MINORITY RACIAL AND ETHNIC GROUPS, SINCE MOST SUCH PERSONS HAVE ONLY
LOW OR MODERATE INCOMES. 

PETITIONERS FURTHER ALLEGED CERTAIN HARM TO THEMSELVES.  THE
ROCHESTER PROPERTY OWNERS AND TAXPAYERS -- VINKEY, REICHERT, WARTH,
HARRIS, AND ORTIZ--CLAIMED THAT BECAUSE OF PENFIELD'S EXCLUSIONARY
PRACTICES, THE CITY OF ROCHESTER HAD BEEN FORCED TO IMPOSE HIGHER TAX
RATES ON THEM AND OTHERS SIMILARLY SITUATED THAN WOULD OTHERWISE HAVE
BEEN NECESSARY.  THE LOW- AND MODERATE-INCOME, MINORITY PLAINTIFFS--
ORITZ, BROADNAX, REYES, AND SINKLER--CLAIMED THAT PENFIELD'S ZONING
PRACTICES HAD PREVENTED THEM FROM ACQUIRING, BY LEASE OR PURCHASE,
RESIDENTIAL PROPERTY IN THE TOWN, AND THUS HAD FORCED THEM AND THEIR
FAMILIES TO RESIDE IN LESS ATTRACTIVE ENVIRONMENTS.  TO RELIEVE THESE
VARIOUS HARMS, PETITIONERS ASKED THE DISTRICT COURT TO DECLARE THE
PENFIELD ORDINANCE UNCONSTITUTIONAL, TO ENJOIN THE DEFENDANTS FROM
ENFORCING THE ORDINANCE, TO ORDER THE DEFENDANTS TO ENACT AND
ADMINISTER A NEW ORDINANCE DESIGNED TO ALLEVIATE THE EFFECTS OF THEIR
PAST ACTIONS, AND TO AWARD $750,000 IN ACTUAL AND EXEMPLARY DAMAGES. 

ON MAY 2, 1972, PETITIONER ROCHESTER HOME BUILDERS ASSOCIATION, AN
ASSOCIATION OF FIRMS ENGAGED IN RESIDENTIAL CONSTRUCTION IN THE
ROCHESTER METROPOLITAN AREA, MOVED THE DISTRICT COURT FOR LEAVE TO
INTERVENE AS A PARTY-PLAINTIFF.  IN ESSENCE, HOME BUILDERS' INTERVENOR
COMPLAINT REPEATED THE ALLEGATIONS OF EXCLUSIONARY ZONING PRACTICES
MADE BY THE ORIGINAL PLAINTIFFS.  IT CLAIMED THAT THESE PRACTICES
ARBITRARILY AND CAPRICIOUSLY HAD PREVENTED ITS MEMBER FIRMS FROM
BUILDING LOW- AND MODERATE-COST HOUSING IN PENFIELD, AND THEREBY HAD
DEPRIVED THEM OF POTENTIAL PROFITS.  HOME BUILDERS PRAYED FOR EQUITABLE
RELIEF IDENTICAL IN SUBSTANCE TO THAT REQUESTED BY THE ORIGINAL
PLAINTIFFS, AND ALSO FOR $750,000 IN DAMAGES.  /7/ ON JUNE 7, 1972,
METRO-ACT AND THE OTHER ORIGINAL PLAINTIFFS MOVED TO JOIN PETITIONER
HOUSING COUNCIL IN THE MONROE COUNTY AREA, INC., AS A PARTY PLAINTIFF. 
HOUSING COUNCIL IS A NOT-FOR-PROFIT NEW YORK CORPORATION, ITS
MEMBERSHIP COMPRISING SOME 71 PUBLIC AND PRIVATE ORGANIZATIONS
INTERESTED IN HOUSING PROBLEMS.  AN AFFIDAVIT ACCOMPANYING THE MOTION
STATED THAT 17 OF HOUSING COUNCIL'S MEMBER GROUPS WERE OR HOPED TO BE
INVOLVED IN THE DEVELOPMENT OF LOW- AND MODERATE-COST HOUSING, AND THAT
ONE OF ITS MEMBERS--THE PENFIELD BETTER HOMES CORP. -- "IS AND HAS BEEN
ACTIVELY ATTEMPTING TO DEVELOP MODERATE INCOME HOUSING" IN PENFIELD,
"BUT HAS BEEN STYMIED BY ITS INABILITY TO SECURE THE NECESSARY
APPROVALS ...."  /8/ 

UPON CONSIDERATION OF THE COMPLAINTS AND OF EXTENSIVE SUPPORTIVE
MATERIALS SUBMITTED BY PETITIONERS, THE DISTRICT COURT HELD THAT THE
ORIGINAL PLAINTIFFS, HOME BUILDERS, AND HOUSING COUNCIL LACKED STANDING
TO PROSECUTE THE ACTION, THAT THE ORIGINAL COMPLAINT FAILED TO STATE A
CLAIM UPON WHICH RELIEF COULD BE GRANTED, THAT THE SUIT SHOULD NOT
PROCEED AS A CLASS ACTION, AND THAT, IN THE EXERCISE OF DISCRETION,
HOME BUILDERS SHOULD NOT BE PERMITTED TO INTERVENE.  THE COURT
ACCORDINGLY DENIED THE MOTION TO ADD HOUSING COUNCIL AS A PARTY
PLAINTIFF, DENIED HOME BUILDERS' MOTION TO INTERVENE, AND DISMISSED THE
COMPLAINT.  THE COURT OF APPEALS AFFIRMED, REACHING ONLY THE STANDING
QUESTIONS. 

II 

WE ADDRESS FIRST THE PRINCIPLES OF STANDING RELEVANT TO THE CLAIMS
ASSERTED BY THE SEVERAL CATEGORIES OF PETITIONERS IN THIS CASE.  IN
ESSENCE THE QUESTION OF STANDING IS WHETHER THE LITIGANT IS ENTITLED TO
HAVE THE COURT DECIDE THE MERITS OF THE DISPUTE OR OF PARTICULAR
ISSUES.  THIS INQUIRY INVOLVES BOTH CONSTITUTIONAL LIMITATIONS ON
FEDERAL-COURT JURISDICTION AND PRUDENTIAL LIMITATIONS ON ITS EXERCISE. 
E.G., BARROWS V. JACKSON, 346 U.S. 249, 255 - 256 (1953).  IN BOTH
DIMENSIONS IT IS FOUNDED IN CONCERN ABOUT THE PROPER--AND PROPERLY
LIMITED--ROLE OF THE COURTS IN A DEMOCRATIC SOCIETY.  SEE SCHLESINGER
V. RESERVISTS TO STOP THE WAR, 418 U.S. 208, 221 - 227 (1974); UNITED
STATES V. RICHARDSON, 418 U.S. 166, 188 - 197 (1974) (POWELL, J.,
CONCURRING). 

IN ITS CONSTITUTIONAL DIMENSION, STANDING IMPORTS JUSTICIABILITY:
WHETHER THE PLAINTIFF HAS MADE OUT A "CASE OR CONTROVERSY" BETWEEN
HIMSELF AND THE DEFENDANT WITHIN THE MEANING OF ART. III.  THIS IS THE
THRESHOLD QUESTION IN EVERY FEDERAL CASE, DETERMINING THE POWER OF THE
COURT TO ENTERTAIN THE SUIT.  AS AN ASPECT OF JUSTICIABILITY, THE
STANDING QUESTION IS WHETHER THE PLAINTIFF HAS "ALLEGED SUCH A PERSONAL
STAKE IN THE OUTCOME OF THE CONTROVERSY" AS TO WARRANT HIS INVOCATION
OF FEDERAL-COURT JURISDICTION AND TO JUSTIFY EXERCISE OF THE COURT'S
REMEDIAL POWERS ON HIS BEHALF.  BAKER V. CARR, 369 U.S. 186, 204
(1962).  /9/ THE ART. III JUDICIAL POWER EXISTS ONLY TO REDRESS OR
OTHERWISE TO PROTECT AGAINST INJURY TO THE COMPLAINING PARTY, EVEN
THOUGH THE COURT'S JUDGMENT MAY BENEFIT OTHERS COLLATERALLY.  A FEDERAL
COURT'S JURISDICTION THEREFORE CAN BE INVOKED ONLY WHEN THE PLAINTIFF
HIMSELF HAS SUFFERED "SOME THREATENED OR ACTUAL INJURY RESULTING FROM
THE PUTATIVELY ILLEGAL ACTION ...."  LINDA R.S. V. RICHARD D., 410 U.S.
614, 617 (1973).  SEE DATA PROCESSING SERVICE V. CAMP, 397 U.S. 150,
151 - 154 (1970).  /10/ 

APART FROM THIS MINIMUM CONSTITUTIONAL MANDATE, THIS COURT HAS
RECOGNIZED OTHER LIMITS ON THE CLASS OF PERSONS WHO MAY INVOKE THE
COURTS' DECISIONAL AND REMEDIAL POWERS.  FIRST, THE COURT HAS HELD THAT
WHEN THE ASSERTED HARM IS A "GENERALIZED GRIEVANCE" SHARED IN
SUBSTANTIALLY EQUAL MEASURE BY ALL OR A LARGE CLASS OF CITIZENS, THAT
HARM ALONE NORMALLY DOES NOT WARRANT EXERCISE OF JURISDICTION.  E. G.,
SCHLESINGER V. RESERVISTS TO STOP THE WAR, SUPRA; UNITED STATES V.
RICHARDSON, SUPRA; EX PARTE LEVITT, 302 U.S. 633, 634 (1937).  SECOND,
EVEN WHEN THE PLAINTIFF HAS ALLEGED INJURY SUFFICIENT TO MEET THE "CASE
OR CONTROVERSY" REQUIREMENT, THIS COURT HAS HELD THAT THE PLAINTIFF
GENERALLY MUST ASSERT HIS OWN LEGAL RIGHTS AND INTERESTS, AND CANNOT
REST HIS CLAIM TO RELIEF ON THE LEGAL RIGHTS OR INTERESTS OF THIRD
PARTIES.  E. G., TILESTON V. ULLMAN, 318 U.S. 44 (1943).  SEE UNITED
STATES V. RAINES, 362 U.S. 17 (1960); BARROWS V. JACKSON, SUPRA.
WITHOUT SUCH LIMITATIONS--CLOSELY RELATED TO ART. III CONCERNS BUT
ESSENTIALLY MATTERS OF JUDICIAL SELF-GOVERNANCE--THE COURTS WOULD BE
CALLED UPON TO DECIDE ABSTRACT QUESTIONS OF WIDE PUBLIC SIGNIFICANCE
EVEN THOUGH OTHER GOVERNMENTAL INSTITUTIONS MAY BE MORE COMPETENT TO
ADDRESS THE QUESTIONS AND EVEN THOUGH JUDICIAL INTERVENTION MAY BE
UNNECESSARY TO PROTECT INDIVIDUAL RIGHTS.  SEE, E. G., SCHLESINGER V.
RESERVISTS TO STOP THE WAR, 418 U.S., AT 222.  /11/ 

ALTHOUGH STANDING IN NO WAY DEPENDS ON THE MERITS OF THE PLAINTIFF'S
CONTENTION THAT PARTICULAR CONDUCT IS ILLEGAL, E. G., FLAST V. COHEN,
392 U.S. 83, 99 (1968), IT OFTEN TURNS ON THE NATURE AND SOURCE OF THE
CLAIM ASSERTED.  THE ACTUAL OR THREATENED INJURY REQUIRED BY ART. III
MAY EXIST SOLELY BY VIRTUE OF "STATUTES CREATING LEGAL RIGHTS, THE
INVASION OF WHICH CREATES STANDING ...."  SEE LINDA R.S. V. RICHARD D.,
410 U.S., AT 617 N. 3; SIERRA CLUB V. MORTON, 405 U.S. 727, 732
(1972).  MOREOVER, THE SOURCE OF THE PLAINTIFF'S CLAIM TO RELIEF
ASSUMES CRITICAL IMPORTANCE WITH RESPECT TO THE PRUDENTIAL RULES OF
STANDING THAT, APART FROM ART. III'S MINIMUM REQUIREMENTS, SERVE TO
LIMIT THE ROLE OF THE COURTS IN RESOLVING PUBLIC DISPUTES. 
ESSENTIALLY, THE STANDING QUESTION IN SUCH CASES IS WHETHER THE
CONSTITUTIONAL OR STATUTORY PROVISION ON WHICH THE CLAIM RESTS PROPERLY
CAN BE UNDERSTOOD AS GRANTING PERSONS IN THE PLAINTIFF'S POSITION A
RIGHT TO JUDICIAL RELIEF.  /12/ IN SOME CIRCUMSTANCES, COUNTERVAILING
CONSIDERATIONS MAY OUTWEIGH THE CONCERNS UNDERLYING THE USUAL
RELUCTANCE TO EXERT JUDICIAL POWER WHEN THE PLAINTIFF'S CLAIM TO RELIEF
RESTS ON THE LEGAL RIGHTS OF THIRD PARTIES. 

SEE UNITED STATES V. RAINES, 362 U.S., AT 22 - 23.  IN SUCH INSTANCES,
THE COURT HAS FOUND, IN EFFECT, THAT THE CONSTITUTIONAL OR STATUTORY
PROVISION IN QUESTION IMPLIES A RIGHT OF ACTION IN THE PLAINTIFF.  SEE
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510 (1925); SULLIVAN V. LITTLE
HUNTING PARK, INC., 396 U.S. 229, 237 (1969).  SEE GENERALLY PART IV,
INFRA.  MOREOVER, CONGRESS MAY GRANT AN EXPRESS RIGHT OF ACTION TO
PERSONS WHO OTHERWISE WOULD BE BARRED BY PRUDENTIAL STANDING RULES.  OF
COURSE, ART. III'S REQUIREMENT REMAINS:  THE PLAINTIFF STILL MUST
ALLEGE A DISTINCT AND PALPABLE INJURY TO HIMSELF, EVEN IF IT IS AN
INJURY SHARED BY A LARGE CLASS OF OTHER POSSIBLE LITIGANTS.  E. G.,
UNITED STATES V. SCRAP, 412 U.S. 669 (1973).  BUT SO LONG AS THIS
REQUIREMENT IS SATISFIED, PERSONS TO WHOM CONGRESS HAS GRANTED A RIGHT
OF ACTION, EITHER EXPRESSLY OR BY CLEAR IMPLICATION, MAY HAVE STANDING
TO SEEK RELIEF ON THE BASIS OF THE LEGAL RIGHTS AND INTERESTS OF
OTHERS, AND, INDEED, MAY INVOKE THE GENERAL PUBLIC INTEREST IN SUPPORT
OF THEIR CLAIM.  E. G., SIERRA CLUB V. MORTON, SUPRA, AT 737; FCC V.
SANDERS RADIO STATION, 309 U.S. 470, 477 (1940).     ONE FURTHER
PRELIMINARY MATTER REQUIRES DISCUSSION.  FOR PURPOSES OF RULING ON A
MOTION TO DISMISS FOR WANT OF STANDING, BOTH THE TRIAL AND REVIEWING
COURTS MUST ACCEPT AS TRUE ALL MATERIAL ALLEGATIONS OF THE COMPLAINT,
AND MUST CONSTRUE THE COMPLAINT IN FAVOR OF THE COMPLAINING PARTY.  E.
G., JENKINS V. MC KEITHEN, 395 U.S. 411, 421 - 422 (1969).  AT THE SAME
TIME, IT IS WITHIN THE TRIAL COURT'S POWER TO ALLOW OR TO REQUIRE THE
PLAINTIFF TO SUPPLY, BY AMENDMENT TO THE COMPLAINT OR BY AFFIDAVITS,
FURTHER PARTICULARIZED ALLEGATIONS OF FACT DEEMED SUPPORTIVE OF
PLAINTIFF'S STANDING.  IF, AFTER THIS OPPORTUNITY, THE PLAINTIFF'S
STANDING DOES NOT ADEQUATELY APPEAR FROM ALL MATERIALS OF RECORD, THE
COMPLAINT MUST BE DISMISSED. 

III 

WITH THESE GENERAL CONSIDERATIONS IN MIND, WE TURN FIRST TO THE
CLAIMS OF PETITIONERS ORTIZ, REYES, SINKLER, AND BROADNAX, EACH OF WHOM
ASSERTS STANDING AS A PERSON OF LOW OR MODERATE INCOME AND,
COINCIDENTALLY, AS A MEMBER OF A MINORITY RACIAL OR ETHNIC GROUP.  WE
MUST ASSUME, TAKING THE ALLEGATIONS OF THE COMPLAINT AS TRUE, THAT
PENFIELD'S ZONING ORDINANCE AND THE PATTERN OF ENFORCEMENT BY
RESPONDENT OFFICIALS HAVE HAD THE PURPOSE AND EFFECT OF EXCLUDING
PERSONS OF LOW AND MODERATE INCOME, MANY OF WHOM ARE MEMBERS OF RACIAL
OR ETHNIC MINORITY GROUPS.  WE ALSO ASSUME, FOR PURPOSES HERE, THAT
SUCH INTENTIONAL EXCLUSIONARY PRACTICES, IF PROVED IN A PROPER CASE,
WOULD BE ADJUDGED VIOLATIVE OF THE CONSTITUTIONAL AND STATUTORY RIGHTS
OF THE PERSONS EXCLUDED. 

BUT THE FACT THAT THESE PETITIONERS SHARE ATTRIBUTES COMMON TO
PERSONS WHO MAY HAVE BEEN EXCLUDED FROM RESIDENCE IN THE TOWN IS AN
INSUFFICIENT PREDICATE FOR THE CONCLUSION THAT PETITIONERS THEMSELVES
HAVE BEEN EXCLUDED, OR THAT THE RESPONDENTS' ASSERTEDLY ILLEGAL ACTIONS
HAVE VIOLATED THEIR RIGHTS.  PETITIONERS MUST ALLEGE AND SHOW THAT THEY
PERSONALLY HAVE BEEN INJURED, NOT THAT INJURY HAS BEEN SUFFERED BY
OTHER, UNIDENTIFIED MEMBERS OF THE CLASS TO WHICH THEY BELONG AND WHICH
THEY PURPORT TO REPRESENT.  UNLESS THESE PETITIONERS CAN THUS
DEMONSTRATE THE REQUISITE CASE OR CONTROVERSY BETWEEN THEMSELVES
PERSONALLY AND RESPONDENTS, "NONE MAY SEEK RELIEF ON BEHALF OF HIMSELF
OR ANY OTHER MEMBER OF THE CLASS."  O' SHEA V. LITTLETON, 414 U.S. 488,
494 (1974).  SEE, E. G., BAILEY V. PATTERSON, 369 U.S. 31, 32 - 33
(1962). 

IN THEIR COMPLAINT, PETITIONERS ORTIZ, REYES, SINKLER, AND BROADNAX
ALLEGED IN CONCLUSORY TERMS THAT THEY ARE AMONG THE PERSONS EXCLUDED BY
RESPONDENTS' ACTIONS.  /13/ NONE OF THEM HAS EVER RESIDED IN PENFIELD;
EACH CLAIMS AT LEAST IMPLICITLY THAT HE DESIRES, OR HAS DESIRED, TO DO
SO.  EACH ASSERTS, MOREOVER, THAT HE MADE SOME EFFORT, AT SOME TIME, TO
LOCATE HOUSING IN PENFIELD THAT WAS AT ONCE WITHIN HIS MEANS AND
ADEQUATE FOR HIS FAMILY'S NEEDS.  EACH CLAIMS THAT HIS EFFORTS PROVED
FRUITLESS.  /14/  WE MAY ASSUME, AS PETITIONERS ALLEGE, THAT
RESPONDENTS' ACTIONS HAVE CONTRIBUTED, PERHAPS SUBSTANTIALLY, TO THE
COST OF HOUSING IN PENFIELD.  BUT THERE REMAINS THE QUESTION WHETHER
PETITIONERS'  INABILITY TO LOCATE SUITABLE HOUSING IN PENFIELD
REASONABLY CAN BE SAID TO HAVE RESULTED, IN ANY CONCRETELY DEMONSTRABLE
WAY, FROM RESPONDENTS'  ALLEGED CONSTITUTIONAL AND STATUTORY
INFRACTIONS.  PETITIONERS MUST ALLEGE FACTS FROM WHICH IT REASONABLY
COULD BE INFERRED THAT, ABSENT THE RESPONDENTS' RESTRICTIVE ZONING
PRACTICES, THERE IS A SUBSTANTIAL PROBABILITY THAT THEY WOULD HAVE BEEN
ABLE TO PURCHASE OR LEASE IN PENFIELD AND THAT, IF THE COURT AFFORDS
THE RELIEF REQUESTED, THE ASSERTED INABILITY OF PETITIONERS WILL BE
REMOVED.  LINDA R. S. V. RICHARD D., 410 U.S. 614 (1973). 

WE FIND THE RECORD DEVOID OF THE NECESSARY ALLEGATIONS.  AS THE
COURT OF APPEALS NOTED, NONE OF THESE PETITIONERS HAS A PRESENT
INTEREST IN ANY PENFIELD PROPERTY; NONE IS HIMSELF SUBJECT TO THE
ORDINANCE'S STRICTURES; AND NONE HAS EVER BEEN DENIED A VARIANCE OR
PERMIT BY RESPONDENT OFFICIALS.  495 F.2D, AT 1191.  INSTEAD,
PETITIONERS CLAIM THAT RESPONDENTS' ENFORCEMENT OF THE ORDINANCE
AGAINST THIRD PARTIES--DEVELOPERS, BUILDERS, AND THE LIKE--HAS HAD THE
CONSEQUENCE OF PRECLUDING THE CONSTRUCTION OF HOUSING SUITABLE TO THEIR
NEEDS AT PRICE THEY MIGHT BE ABLE TO AFFORD.  THE FACT THAT THE HARM TO
PETITIONERS MAY HAVE RESULTED INDIRECTLY DOES NOT IN ITSELF PRECLUDE
STANDING.  WHEN A GOVERNMENTAL PROHIBITION OR RESTRICTION IMPOSED ON
ONE PARTY CAUSES SPECIFIC HARM TO A THIRD PARTY, HARM THAT A
CONSTITUTIONAL PROVISION OR STATUTE WAS INTENDED TO PREVENT, THE
INDIRECTNESS OF THE INJURY DOES NOT NECESSARILY DEPRIVE THE PERSON
HARMED OF STANDING TO VINDICATE HIS RIGHTS.  E. G., ROE V. WADE, 410
U.S. 113, 124 (1973).  BUT IT MAY MAKE IT SUBSTANTIALLY MORE DIFFICULT
TO MEET THE MINIMUM REQUIREMENT OF ART. III:  TO ESTABLISH THAT, IN
FACT, THE ASSERTED INJURY WAS THE CONSEQUENCE OF THE DEFENDANTS'
ACTIONS, OR THAT PROSPECTIVE RELIEF WILL REMOVE THE HARM. 

HERE, BY THEIR OWN ADMISSION, REALIZATION OF PETITIONERS' DESIRE TO
LIVE IN PENFIELD ALWAYS HAS DEPENDED ON THE EFFORTS AND WILLINGNESS OF
THIRD PARTIES TO BUILD LOW- AND MODERATE-COST HOUSING.  THE RECORD
SPECIFICALLY REFERS TO ONLY TWO SUCH EFFORTS:  THAT OF PENFIELD BETTER
HOMES CORP., IN LATE 1969, TO OBTAIN THE REZONING OF CERTAIN LAND IN
PENFIELD TO ALLOW THE CONSTRUCTION OF SUBSIDIZED COOPERATIVE TOWNHOUSES
THAT COULD BE PURCHASED BY PERSONS OF MODERATE INCOME; AND A SIMILAR
EFFORT BY O' BRIEN HOMES, INC., IN LATE 1971.  /15/ BUT THE RECORD IS
DEVOID OF ANY INDICATION THAT THESE PROJECTS, OR OTHER LIKE PROJECTS,
WOULD HAVE SATISFIED PETITIONERS' NEEDS AT PRICES THEY COULD AFFORD, OR
THAT, WERE THE COURT TO REMOVE THE OBSTRUCTIONS ATTRIBUTABLE TO
RESPONDENTS, SUCH RELIEF WOULD BENEFIT PETITIONERS. 

INDEED, PETITIONERS' DESCRIPTIONS OF THEIR INDIVIDUAL FINANCIAL
SITUATIONS AND HOUSING NEEDS SUGGEST PRECISELY THE CONTRARY--, THAT
THEIR INABILITY TO RESIDE IN PENFIELD IS THE CONSEQUENCE OF THE
ECONOMICS OF THE AREA HOUSING MARKET, RATHER THAN OF RESPONDENTS'
ASSERTEDLY ILLEGAL ACTS.  /16/ IN SHORT, THE FACTS ALLEGED FAIL TO
SUPPORT AN ACTIONABLE CAUSAL RELATIONSHIP BETWEEN PENFIELD'S ZONING
PRACTICES AND PETITIONERS' ASSERTED INJURY. 

IN SUPPORT OF THEIR POSITION, PETITIONERS REFER TO SEVERAL DECISIONS
IN THE DISTRICT COURTS AND COURTS OF APPEALS, ACKNOWLEDGING STANDING IN
LOW-INCOME, MINORITY-GROUP PLAINTIFFS TO CHALLENGE EXCLUSIONARY ZONING
PRACTICES.  /17/ IN THOSE CASES, HOWEVER, THE PLAINTIFFS CHALLENGED
ZONING RESTRICTIONS AS APPLIED TO PARTICULAR PROJECTS THAT WOULD SUPPLY
HOUSING WITHIN THEIR MEANS, AND OF WHICH THEY WERE INTENDED RESIDENTS. 
THE PLAINTIFFS THUS WERE ABLE TO DEMONSTRATE THAT UNLESS RELIEF FROM
ASSERTEDLY ILLEGAL ACTIONS WAS FORTHCOMING, THEIR IMMEDIATE AND
PERSONAL INTERESTS WOULD BE HARMED.  PETITIONERS HERE ASSERT NO LIKE
CIRCUMSTANCES.  INSTEAD, THEY RELY ON LITTLE MORE THAN THE REMOTE
POSSIBILITY, UNSUBSTANTIATED BY ALLEGATIONS OF FACT, THAT THEIR
SITUATION MIGHT HAVE BEEN BETTER HAD RESPONDENTS ACTED OTHERWISE, AND
MIGHT IMPROVE WERE THE COURT TO AFFORD RELIEF. 

WE HOLD ONLY THAT A PLAINTIFF WHO SEEKS TO CHALLENGE EXCLUSIONARY
ZONING PRACTICES MUST ALLEGE SPECIFIC, CONCRETE FACTS DEMONSTRATING
THAT THE CHALLENGED PRACTICES HARM HIM, AND THAT HE PERSONALLY WOULD
BENEFIT IN A TANGIBLE WAY FROM THE COURTS' INTERVENTION.  /18/ ABSENT
THE NECESSARY ALLEGATIONS OF DEMONSTRABLE, PARTICULARIZED INJURY, THERE
CAN BE NO CONFIDENCE OF "A REAL NEED TO EXERCISE THE POWER OF JUDICIAL
REVIEW" OR THAT RELIEF CAN BE FRAMED "NO BROADER THAN REQUIRED BY THE
PRECISE FACTS TO WHICH THE COURT'S RULING WOULD BE APPLIED." 
SCHLESINGER V. RESERVISTS TO STOP THE WAR, 418 U.S., AT 221 - 222. 

        IV 

THE PETITIONERS WHO ASSERT STANDING ON THE BASIS OF THEIR STATUS AS
TAXPAYERS OF THE CITY OF ROCHESTER PRESENT A DIFFERENT SET OF
PROBLEMS.  THESE "TAXPAYER-PETITIONERS" CLAIM THAT THEY ARE SUFFERING
ECONOMIC INJURY CONSEQUENT TO PENFIELD'S ALLEGEDLY DISCRIMINATORY AND
EXCLUSIONARY ZONING PRACTICES.  THEIR ARGUMENT, IN BRIEF, IS THAT
PENFIELD'S PERSISTENT REFUSAL TO ALLOW OR TO FACILITATE CONSTRUCTION OF
LOW- AND MODERATE-COST HOUSING FORCES THE CITY OF ROCHESTER TO PROVIDE
MORE SUCH HOUSING THAN IT OTHERWISE WOULD DO; THAT TO PROVIDE SUCH
HOUSING, ROCHESTER MUST ALLOW CERTAIN TAX ABATEMENTS; AND THAT AS THE
AMOUNT OF TAX-ABATED PROPERTY INCREASES, ROCHESTER TAXPAYERS ARE FORCED
TO ASSUME AN INCREASED TAX BURDEN IN ORDER TO FINANCE ESSENTIAL PUBLIC
SERVICES. 

" OF COURSE, PLEADINGS MUST BE SOMETHING MORE THAN AN INGENIOUS
ACADEMIC EXERCISE IN THE CONCEIVABLE."  UNITED STATES V. SCRAP, 412
U.S., AT 688.  WE THINK THE COMPLAINT OF THE TAXPAYER-PETITIONERS IS
LITTLE MORE THAN SUCH AN EXERCISE.  APART FROM THE CONJECTURAL NATURE
OF THE ASSERTED INJURY, THE LINE OF CAUSATION BETWEEN PENFIELD'S
ACTIONS AND SUCH INJURY IS NOT APPARENT FROM THE COMPLAINT.  WHATEVER
MAY OCCUR IN PENFIELD, THE INJURY COMPLAINED OF--INCREASES IN TAXATION-
RESULTS ONLY FROM DECISIONS MADE BY THE APPROPRIATE ROCHESTER
AUTHORITIES, WHO ARE NOT PARTIES TO THIS CASE. 

BUT EVEN IF WE ASSUME THAT THE TAXPAYER-PETITIONERS COULD ESTABLISH
THAT PENFIELD'S ZONING PRACTICES HARM THEM, /19/ THEIR COMPLAINT
NONETHELESS WAS PROPERLY DISMISSED.  PETITIONERS DO NOT, EVEN IF THEY
COULD, ASSERT ANY PERSONAL RIGHT UNDER THE CONSTITUTION OR ANY STATUTE
TO BE FREE OF ACTION BY A NEIGHBORING MUNICIPALITY THAT MAY HAVE SOME
INCIDENTAL ADVERSE EFFECT ON ROCHESTER.  ON THE CONTRARY, THE ONLY
BASIS OF THE TAXPAYER-PETITIONERS' CLAIM IS THAT PENFIELD'S ZONING
ORDINANCE AND PRACTICES VIOLATE THE CONSTITUTIONAL AND STATUTORY RIGHTS
OF THIRD PARTIES, NAMELY, PERSONS OF LOW AND MODERATE INCOME WHO ARE
SAID TO BE EXCLUDED FROM PENFIELD.  IN SHORT THE CLAIM OF THESE
PETITIONERS FALLS SQUARELY WITHIN THE PRUDENTIAL STANDING RULE THAT
NORMALLY BARS LITIGANTS FROM ASSERTING THE RIGHTS OR LEGAL INTERESTS OF
OTHERS IN ORDER TO OBTAIN RELIEF FROM INJURY TO THEMSELVES.  AS WE HAVE
OBSERVED ABOVE, THIS RULE OF JUDICIAL SELF-GOVERNANCE IS SUBJECT TO
EXCEPTIONS, THE MOST PROMINENT OF WHICH IS THAT CONGRESS MAY REMOVE IT
BY STATUTE.  HERE, HOWEVER, NO STATUTE EXPRESSLY OR BY CLEAR
IMPLICATION GRANTS A RIGHT OF ACTION, AND THUS STANDING TO SEEK RELIEF,
TO PERSONS IN PETITIONERS' POSITION.  IN SEVERAL CASES, THIS COURT HAS
ALLOWED STANDING TO LITIGATE THE RIGHTS OF THIRD PARTIES WHEN
ENFORCEMENT OF THE CHALLENGED RESTRICTION AGAINST THE LITIGANT WOULD
RESULT INDIRECTLY IN THE VIOLATION OF THIRD PARTIES' RIGHTS.  SEE,
E.G., DOE V. BOLTON, 410 U.S. 179, 188 (1973); GRISWOLD V. CONNECTICUT,
381 U.S. 479, 481 (1965); BARROWS V. JACKSON, 346 U.S. 249 (1953).  BUT
THE TAXPAYER-PETITIONERS ARE NOT THEMSELVES SUBJECT TO PENFIELD'S
ZONING PRACTICES.  NOR DO THEY ALLEGE THAT THE CHALLENGED ZONING
ORDINANCE AND PRACTICES PRECLUDE OR OTHERWISE ADVERSELY AFFECT A
RELATIONSHIP EXISTING BETWEEN THEM AND THE PERSONS WHOSE RIGHTS
ASSERTEDLY ARE VIOLATED.  E.G., SULLIVAN V. LITTLE HUNTING PARK, INC.,
396 U.S., AT 237; NAACP V. ALABAMA, 357 U.S. 449, 458 - 460 (1958);
PIERCE V. SOCIETY OF SISTERS, 268 U.S., AT 534 - 536.  NO RELATIONSHIP,
OTHER THAN AN INCIDENTAL CONGRUITY OF INTEREST, IS ALLEGED TO EXIST
BETWEEN THE ROCHESTER TAXPAYERS AND PERSONS WHO HAVE BEEN PRECLUDED
FROM LIVING IN PENFIELD.  NOR DO THE TAXPAYER-PETITIONERS SHOW THAT
THEIR PROSECUTION OF THE SUIT IS NECESSARY TO INSURE PROTECTION OF THE
RIGHTS ASSERTED, AS THERE IS NO INDICATION THAT PERSONS WHO IN FACT
HAVE BEEN EXCLUDED FROM PENFIELD ARE DISABLED FROM ASSERTING THEIR OWN
RIGHT IN A PROPER CASE.  /20/ IN SUM, WE DISCERN NO JUSTIFICATION FOR
RECOGNIZING IN THE ROCHESTER TAXPAYERS A RIGHT OF ACTION ON THE
ASSERTED CLAIM. 

        V 

WE TURN NEXT TO THE STANDING PROBLEMS PRESENTED BY THE PETITIONER
ASSOCIATIONS--METRO-ACT OF ROCHESTER, INC., ONE OF THE ORIGINAL
PLAINTIFFS; HOUSING COUNCIL IN THE MONROE COUNTY AREA, INC., WHICH THE
ORIGINAL PLAINTIFFS SOUGHT TO JOIN AS A PARTY-PLAINTIFF; AND ROCHESTER
HOME BUILDERS ASSOCIATION, INC., WHICH MOVED IN THE DISTRICT COURT FOR
LEAVE TO INTERVENE AS PLAINTIFF.  THERE IS NO QUESTION THAT AN
ASSOCIATION MAY HAVE STANDING IN ITS OWN RIGHT TO SEEK JUDICIAL RELIEF
FROM INJURY TO ITSELF AND TO VINDICATE WHATEVER RIGHTS AND IMMUNITIES
THE ASSOCIATION ITSELF MAY ENJOY.  MOREOVER, IN ATTEMPTING TO SECURE
RELIEF FROM INJURY TO ITSELF THE ASSOCIATION MAY ASSERT THE RIGHTS OF
ITS MEMBERS, AT LEAST SO LONG AS THE CHALLENGED INFRACTIONS ADVERSELY
AFFECT ITS MEMBERS' ASSOCIATIONAL TIES.  E. G., NAACP V. ALABAMA,
SUPRA, AT 458 - 460; ANTI-FASCIST COMMITTEE V. MC GRATH, 341 U.S. 123,
183 - 187 (1951)(JACKSON, J., CONCURRING).  WITH THE LIMITED EXCEPTION
OF METRO-ACT, HOWEVER, NONE OF THE ASSOCIATIONAL PETITIONERS HERE HAS
ASSERTED INJURY TO ITSELF. 

EVEN IN THE ABSENCE OF INJURY TO ITSELF, AN ASSOCIATION MAY HAVE
STANDING SOLELY AS THE REPRESENTATIVE OF ITS MEMBERS.  E. G., NATIONAL
MOTOR FREIGHT ASSN. V. UNITED STATES, 372 U.S. 246 (1963).  THE
POSSIBILITY OF SUCH REPRESENTATIONAL STANDING, HOWEVER, DOES NOT
ELIMINATE OR ATTENUATE THE CONSTITUTIONAL REQUIREMENT OF A CASE OR
CONTROVERSY.  SEE SIERRA CLUB V. MORTON, 405 U.S. 727 (1972).  THE
ASSOCIATION MUST ALLEGE THAT ITS MEMBERS, OR ANY ONE OF THEM, ARE
SUFFERING IMMEDIATE OR THREATENED INJURY AS A RESULT OF THE CHALLENGED
ACTION OF THE SORT THAT WOULD MAKE OUT A JUSTICIABLE CASE HAD THE
MEMBERS THEMSELVES BROUGHT SUIT.  ID., AT 734 - 741.  SO LONG AS THIS
CAN BE ESTABLISHED, AND SO LONG AS THE NATURE OF THE CLAIM AND OF THE
RELIEF SOUGHT DOES NOT MAKE THE INDIVIDUAL PARTICIPATION OF EACH
INJURED PARTY INDISPENSABLE TO PROPER RESOLUTION OF THE CAUSE, THE
ASSOCIATION MAY BE AN APPROPRIATE REPRESENTATIVE OF ITS MEMBERS,
ENTITLED TO INVOKE THE COURT'S JURISDICTION.              A 
PETITIONER METRO-ACT'S CLAIMS TO STANDING ON ITS OWN BEHALF AS A
ROCHESTER TAXPAYER, AND ON BEHALF OF ITS MEMBERS WHO ARE ROCHESTER
TAXPAYERS OR PERSONS OF LOW OR MODERATE INCOME, ARE PRECLUDED BY OUR
HOLDINGS IN PARTS III AND IV, SUPRA, AS TO THE INDIVIDUAL PETITIONERS,
AND REQUIRE NO FURTHER DISCUSSION.  METRO-ACT ALSO ALLEGES, HOWEVER,
THAT 9% OF ITS MEMBERSHIP IS COMPOSED OF PRESENT RESIDENTS OF
PENFIELD.  IT CLAIMS THAT, AS A RESULT OF THE PERSISTENT PATTERN OF
EXCLUSIONARY ZONING PRACTICED BY RESPONDENTS AND THE CONSEQUENT
EXCLUSION OF PERSONS OF LOW AND MODERATE INCOME, THOSE OF ITS MEMBERS
WHO ARE PENFIELD RESIDENTS ARE DEPRIVED OF THE BENEFITS OF LIVING IN A
RACIALLY AND ETHNICALLY INTEGRATED COMMUNITY.  REFERRING TO OUR
DECISION IN TRAFFICANTE V. METROPOLITAN LIFE INS. CO., 409 U.S. 205
(1972), METRO-ACT ARGUES THAT SUCH DEPRIVATION IS A SUFFICIENTLY
PALPABLE INJURY TO SATISFY THE ART. III CASE-OR-CONTROVERSY
REQUIREMENT, AND THAT IT HAS STANDING AS THE REPRESENTATIVE OF ITS
MEMBERS TO SEEK REDRESS. 

WE AGREE WITH THE COURT OF APPEALS THAT TRAFFICANTE IS NOT
CONTROLLING HERE.  IN THAT CASE, TWO RESIDENTS OF AN APARTMENT COMPLEX
ALLEGED THAT THE OWNER HAD DISCRIMINATED AGAINST RENTAL APPLICANTS ON
THE BASIS OF RACE, IN VIOLATION OF SEC. 804 OF THE CIVIL RIGHTS ACT OF
1968, 82 STAT. 83, 42 U.S.C. SEC. 3604.  THEY CLAIMED THAT, AS A RESULT
OF SUCH DISCRIMINATION, "THEY HAD BEEN INJURED IN THAT (1) THEY HAD
LOST THE SOCIAL BENEFITS OF LIVING IN AN INTEGRATED COMMUNITY; (2) THEY
HAD MISSED BUSINESS AND PROFESSIONAL ADVANTAGES WHICH WOULD HAVE
ACCRUED IF THEY HAD LIVED WITH MEMBERS OF MINORITY GROUPS; (3) THEY HAD
SUFFERED EMBARRASSMENT AND ECONOMIC DAMAGE IN SOCIAL, BUSINESS, AND
PROFESSIONAL ACTIVITIES FROM BEING 'STIGMATIZED' AS RESIDENTS OF A
'WHITE GHETTO.'"  409 U.S., AT 208.  IN LIGHT OF THE CLEAR
CONGRESSIONAL PURPOSE IN ENACTING THE 1968 ACT, AND THE BROAD
DEFINITION OF "PERSON AGGRIEVED" IN SEC. 810 (A), 42 U.S.C. SEC. 3610
(A), WE HELD THAT PETITIONERS, AS "PERSONS) WHO CLAIMED) TO HAVE BEEN
INJURED BY A DISCRIMINATORY HOUSING PRACTICE," HAD STANDING TO LITIGATE
VIOLATIONS OF THE ACT.  WE CONCLUDED THAT CONGRESS HAD GIVEN RESIDENTS
OF HOUSING FACILITIES COVERED BY THE STATUTE AN ACTIONABLE RIGHT TO BE
FREE FROM THE ADVERSE CONSEQUENCES TO THEM OF RACIALLY DISCRIMINATORY
PRACTICES DIRECTED AT AND IMMEDIATELY HARMFUL TO OTHERS.  409 U.S., AT
212. 

METRO-ACT DOES NOT ASSERT ON BEHALF OF ITS MEMBERS ANY RIGHT OF
ACTION UNDER THE 1968 CIVIL RIGHTS ACT, NOR CAN THE COMPLAINT FAIRLY BE
READ TO MAKE OUT ANY SUCH CLAIM.  /21/ IN THIS, WE THINK, LIES THE
CRITICAL DISTINCTION BETWEEN TRAFFICANTE AND THE SITUATION HERE.  AS WE
HAVE OBSERVED ABOVE, CONGRESS MAY CREATE A STATUTORY RIGHT OR
ENTITLEMENT THE ALLEGED DEPRIVATION OF WHICH CAN CONFER STANDING TO SUE
EVEN WHERE THE PLAINTIFF WOULD HAVE SUFFERED NO JUDICIALLY COGNIZABLE
INJURY IN THE ABSENCE OF STATUTE.  LINDA R.S. V. RICHARD D., 410 U.S.,
AT 617 N. 3, CITING TRAFFICANTE V. METROPOLITAN LIFE INS., CO., SUPRA,
AT 212 (WHITE, J., CONCURRING).  NO SUCH STATUTE IS APPLICABLE HERE. 

EVEN IF WE ASSUME, ARGUENDO, THAT APART FROM ANY STATUTORILY CREATED
RIGHT THE ASSERTED HARM TO METRO-ACT'S PENFIELD MEMBERS IS SUFFICIENTLY
DIRECT AND PERSONAL TO SATISFY THE CASE-OR-CONTROVERSY REQUIREMENT OF
ART. III, PRUDENTIAL CONSIDERATIONS STRONGLY COUNSEL AGAINST ACCORDING
THEM OR METRO-ACT STANDING TO PROSECUTE THIS ACTION.  WE DO NOT
UNDERSTAND METRO-ACT TO ARGUE THAT PENFIELD RESIDENTS THEMSELVES HAVE
BEEN DENIED ANY CONSTITUTIONAL RIGHTS, AFFORDING THEM A CAUSE OF ACTION
UNDER 42 U.S.C. SEC. 1983.  INSTEAD, THEIR COMPLAINT IS THAT THEY HAVE
BEEN HARMED INDIRECTLY BY THE EXCLUSION OF OTHERS.  THIS IS AN ATTEMPT
TO RAISE PUTATIVE RIGHTS OF THIRD PARTIES, AND NONE OF THE EXCEPTIONS
THAT ALLOW SUCH CLAIMS IS PRESENT HERE.  /22/ IN THESE CIRCUMSTANCES,
WE CONCLUDE THAT IT IS INAPPROPRIATE TO ALLOW METRO-ACT TO INVOKE THE
JUDICIAL PROCESS. 

        B 

PETITIONER HOME BUILDERS, IN ITS INTERVENOR-COMPLAINT, ASSERTED
STANDING TO REPRESENT ITS MEMBER FIRMS ENGAGED IN THE DEVELOPMENT AND
CONSTRUCTION OF RESIDENTIAL HOUSING IN THE ROCHESTER AREA, INCLUDING
PENFIELD.  HOME BUILDERS ALLEGED THAT THE PENFIELD ZONING RESTRICTIONS,
TOGETHER WITH REFUSALS BY THE TOWN OFFICIALS TO GRANT VARIANCES AND
PERMITS FOR THE CONSTRUCTION OF LOW- AND MODERATE-COST HOUSING, HAD
DEPRIVED SOME OF ITS MEMBERS OF "SUBSTANTIAL BUSINESS OPPORTUNITIES AND
PROFITS." 

APP. 156.  HOME BUILDERS CLAIMED DAMAGES OF $750,000 AND ALSO JOINED
IN THE ORIGINAL PLAINTIFFS' PRAYER FOR DECLARATORY AND INJUNCTIVE
RELIEF. 

AS NOTED ABOVE, TO JUSTIFY ANY RELIEF THE ASSOCIATION MUST SHOW THAT
IT HAS SUFFERED HARM, OR THAT ONE OR MORE OF ITS MEMBERS ARE INJURED. 
E. G., SIERRA CLUB V. MORTON, 405 U.S. 727 (1972).  BUT, APART FROM
THIS, WHETHER AN ASSOCIATION HAS STANDING TO INVOKE THE COURT'S
REMEDIAL POWERS ON BEHALF OF ITS MEMBERS DEPENDS IN SUBSTANTIAL MEASURE
ON THE NATURE OF THE RELIEF SOUGHT.  IF IN A PROPER CASE THE
ASSOCIATION SEEKS A DECLARATION, INJUNCTION, OR SOME OTHER FORM OF
PROSPECTIVE RELIEF, IT CAN REASONABLY BE SUPPOSED THAT THE REMEDY, IF
GRANTED, WILL INURE TO THE BENEFIT OF THOSE MEMBERS OF THE ASSOCIATION
ACTUALLY INJURED.  INDEED, IN ALL CASES IN WHICH WE HAVE EXPRESSLY
RECOGNIZED STANDING IN ASSOCIATIONS TO REPRESENT THEIR MEMBERS, THE
RELIEF SOUGHT HAS BEEN OF THIS KIND.  E. G., NATIONAL MOTOR FREIGHT
ASSN., 372 U.S. 246 (1963).  SEE DATA PROCESSING SERVICE V. CAMP, 397
U.S. 150 (1970).  CF. FED. RULE CIV. PROC. 23 (B) (2). 

THE PRESENT CASE, HOWEVER, DIFFERS SIGNIFICANTLY AS HERE AN
ASSOCIATION SEEKS RELIEF IN DAMAGES FOR ALLEGED INJURIES TO ITS
MEMBERS.  HOME BUILDERS ALLEGES NO MONETARY INJURY TO ITSELF, NOR ANY
ASSIGNMENT OF THE DAMAGES CLAIMS OF ITS MEMBERS.  NO AWARD THEREFORE
CAN BE MADE TO THE ASSOCIATION AS SUCH.  MOREOVER, IN THE CIRCUMSTANCES
OF THIS CASE, THE DAMAGES CLAIMS ARE NOT COMMON TO THE ENTIRE
MEMBERSHIP, NOR SHARED BY ALL IN EQUAL DEGREE.  TO THE CONTRARY,
WHATEVER INJURY MAY HAVE BEEN SUFFERED IS PECULIAR TO THE INDIVIDUAL
MEMBER CONCERNED, AND BOTH THE FACT AND EXTENT OF INJURY WOULD REQUIRE
INDIVIDUALIZED PROOF. 

THUS, TO OBTAIN RELIEF IN DAMAGES, EACH MEMBER OF HOME BUILDERS WHO
CLAIMS INJURY AS A RESULT OF RESPONDENTS' PRACTICES MUST BE A PARTY TO
THE SUIT, AND HOME BUILDERS HAS NO STANDING TO CLAIM DAMAGES ON HIS
BEHALF. 

HOME BUILDERS' PRAYER FOR PROSPECTIVE RELIEF FAILS FOR A DIFFERENT
REASON.  IT CAN HAVE STANDING AS THE REPRESENTATIVE OF ITS MEMBERS ONLY
IF IT HAS ALLEGED FACTS SUFFICIENT TO MAKE OUT A CASE OR CONTROVERSY
HAD THE MEMBERS THEMSELVES BROUGHT SUIT.  NO SUCH ALLEGATIONS WERE
MADE.  THE COMPLAINT REFERS TO NO SPECIFIC PROJECT OF ANY OF ITS
MEMBERS THAT IS CURRENTLY PRECLUDED EITHER BY THE ORDINANCE OR BY
RESPONDENTS' ACTION IN ENFORCING IT.  THERE IS NO AVERMENT THAT ANY
MEMBER HAS APPLIED TO RESPONDENTS FOR A BUILDING PERMIT OR A VARIANCE
WITH RESPECT TO ANY CURRENT PROJECT.  INDEED, THERE IS NO INDICATION
THAT RESPONDENTS HAVE DELAYED OR THWARTED ANY PROJECT CURRENTLY
PROPOSED BY HOME BUILDERS' MEMBERS, OR THAT ANY OF ITS MEMBERS HAS
TAKEN ADVANTAGE OF THE REMEDIAL PROCESSES AVAILABLE UNDER THE
ORDINANCE.  IN SHORT, INSOFAR AS THE COMPLAINT SEEKS PROSPECTIVE
RELIEF, HOME BUILDERS HAS FAILED TO SHOW THE EXISTENCE OF ANY INJURY TO
ITS MEMBERS OF SUFFICIENT IMMEDIACY AND RIPENESS TO WARRANT JUDICIAL
INTERVENTION.  SEE, E.G., UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S.
75, 86 - 91 (1947); MARYLAND CAS. CO. V. PACIFIC COAL & OIL CO., 312
U.S. 270, 273 (1941). 

A LIKE PROBLEM IS PRESENTED WITH RESPECT TO PETITIONER HOUSING
COUNCIL.  THE AFFIDAVIT ACCOMPANYING THE MOTION TO JOIN IT AS PLAINTIFF
STATES THAT THE COUNCIL INCLUDES IN ITS MEMBERSHIP "AT LEAST SEVENTEEN"
GROUPS THAT HAVE BEEN, ARE, OR WILL BE INVOLVED IN THE DEVELOPMENT OF
LOW- AND MODERATE-COST HOUSING.  BUT, WITH ONE EXCEPTION, THE COMPLAINT
DOES NOT SUGGEST THAT ANY OF THESE GROUPS HAS FOCUSED ITS EFFORTS ON
PENFIELD OR HAS ANY SPECIFIC PLAN TO DO SO.  AGAIN WITH THE SAME
EXCEPTION, NEITHER THE COMPLAINT NOR ANY MATERIALS OF RECORD INDICATE
THAT ANY MEMBER OF HOUSING COUNCIL HAS TAKEN ANY STEP TOWARD BUILDING
HOUSING IN PENFIELD, OR HAS HAD DEALINGS OF ANY NATURE WITH
RESPONDENTS.  THE EXCEPTION IS THE PENFIELD BETTER HOMES CORP. AS WE
HAVE OBSERVED ABOVE, IT APPLIED TO RESPONDENTS IN LATE 1969 FOR A
ZONING VARIANCE TO ALLOW CONSTRUCTION OF A HOUSING PROJECT DESIGNED FOR
PERSONS OF MODERATE INCOME.  THE AFFIDAVIT IN SUPPORT OF THE MOTION TO
JOIN HOUSING COUNCIL REFERS SPECIFICALLY TO THIS EFFORT, AND THE
SUPPORTING MATERIALS DETAIL AT SOME LENGTH THE CIRCUMSTANCES
SURROUNDING THE REJECTION OF BETTER HOMES' APPLICATION.  IT IS
THEREFORE POSSIBLE THAT IN 1969, OR WITHIN A REASONABLE TIME
THEREAFTER, BETTER HOMES ITSELF AND POSSIBLY HOUSING COUNCIL AS ITS
REPRESENTATIVE WOULD HAVE HAD STANDING TO SEEK REVIEW OF RESPONDENTS'
ACTION.  THE COMPLAINT, HOWEVER, DOES NOT ALLEGE THAT THE PENFIELD
BETTER HOMES PROJECT REMAINED VIABLE IN 1972 WHEN THIS COMPLAINT WAS
FILED, OR THAT RESPONDENTS' ACTIONS CONTINUED TO BLOCK A THEN-CURRENT
CONSTRUCTION PROJECT.  /23/ IN SHORT, NEITHER THE COMPLAINT NOR THE
RECORD SUPPLIES ANY BASIS FROM WHICH TO INFER THAT THE CONTROVERSY
BETWEEN RESPONDENTS AND BETTER HOMES, HOWEVER VIGOROUS IT MAY ONCE HAVE
BEEN, REMAINED A LIVE, CONCRETE DISPUTE WHEN THIS COMPLAINT WAS FILED. 

        VI 

THE RULES OF STANDING, WHETHER AS ASPECTS OF THE ART. III CASE-OR
CONTROVERSY REQUIREMENT OR AS REFLECTIONS OF PRUDENTIAL CONSIDERATIONS
DEFINING AND LIMITING THE ROLE OF THE COURTS, ARE THRESHOLD
DETERMINANTS OF THE PROPRIETY OF JUDICIAL INTERVENTION.  IT IS THE
RESPONSIBILITY OF THE COMPLAINANT CLEARLY TO ALLEGE FACTS DEMONSTRATING
THAT HE IS A PROPER PARTY TO INVOKE JUDICIAL RESOLUTION OF THE DISPUTE
AND THE EXERCISE OF THE COURT'S REMEDIAL POWERS.  WE AGREE WITH THE
DISTRICT COURT AND THE COURT OF APPEALS THAT NONE OF THE PETITIONERS
HERE HAS MET THIS THRESHOLD REQUIREMENT.  ACCORDINGLY, THE JUDGMENT OF
THE COURT OF APPEALS IS

           AFFIRMED. 

/1/ PLAINTIFFS CLAIMED TO REPRESENT, PURSUANT TO FED. RULE CIV.
PROC. 23 (B)(2), CLASSES CONSTITUTING "ALL TAXPAYERS OF THE CITY OF
ROCHESTER, ALL LOW AND MODERATE INCOME PERSONS RESIDING IN THE CITY OF
ROCHESTER, ALL BLACK AND/OR PUERTO RICAN/ SPANISH CITIZENS RESIDING IN
THE CITY OF ROCHESTER AND ALL PERSONS EMPLOYED BUT EXCLUDED FROM LIVING
IN THE TOWN OF PENFIELD WHO ARE AFFECTED OR MAY IN THE FUTURE BE
AFFECTED BY THE DEFENDANTS' POLICIES AND PRACTICES...."  APP.  9. 

/2/ ID., AT 8 - 9. 

/3/ PLAINTIFF HARRIS WAS FURTHER DESCRIBED IN THE COMPLAINT AS "A
NEGRO PERSON WHO IS DENIED CERTAIN RIGHTS BY VIRTUE OF HER RACE...." 
APP. 5.  WE FIND NO INDICATION IN THE RECORD THAT HARRIS HAD EITHER THE
DESIRE OR INTENT TO LIVE IN PENFIELD WERE SUITABLE HOUSING TO BECOME
AVAILABLE.  INDEED, PETITIONERS NOW APPEAR TO CLAIM STANDING FOR HARRIS
ONLY ON THE GROUND THAT SHE IS A TAXPAYER OF ROCHESTER.  SEE BRIEF FOR
PETITIONERS 9, 12. 

/4/ ACCORDING TO ORTIZ' AFFIDAVIT, SUBMITTED IN ANSWER TO
RESPONDENTS' MOTION TO DISMISS, HE WAS EMPLOYED IN PENFIELD FROM 1966
TO MAY 1972.  APP. 366 - 367. 

/5/ IN FACT, HOWEVER, THE COMPLAINT NOWHERE DEFINES THE TERM "LOW
AND MODERATE INCOME" BEYOND THE PARENTHETICAL PHRASE "WITHOUT THE
CAPITAL REQUIREMENTS TO PURCHASE REAL ESTATE."  E.G., ID., AT 18.  IN
ADDITION TO THE INADEQUACY OF THIS DEFINITION, THE RECORD DISCLOSES
WIDE VARIATIONS IN THE INCOME, HOUSING NEEDS, AND MONEY AVAILABLE FOR
HOUSING AMONG THE VARIOUS "LOW AND MODERATE INCOME" PLAINTIFFS.  SEE
PART III, INFRA. 

/6/ APP. 25 - 26. 

/7/ HOME BUILDERS ALSO ASKED THE DISTRICT COURT TO ENJOIN THE
DEFENDANTS FROM CARRYING OUT THREATENED RETALIATION AGAINST ITS MEMBERS
IF HOME BUILDERS JOINED THIS LITIGATION. 

/8/ ID., AT 174. 

/9/ SEE H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 156 (2D ED. 1973). 

/10/ THE STANDING QUESTION THUS BEARS CLOSE AFFINITY TO QUESTIONS OF
RIPENESS--WHETHER THE HARM ASSERTED HAS MATURED SUFFICIENTLY TO WARRANT
JUDICIAL INTERVANTION--AND OF MOOTNESS--WHETHER THE OCCASION FOR
JUDICIAL INTERVENTION PERSISTS.  E. G., LAKE CARRIERS' ASSN. V. MAC
MULLAN, 406 U.S. 498 (1972); HALL V. BEALS, 396 U.S. 45 (1969).  SEE
ANTI-FASCIST COMMITTEE V. MC GRATH, 341 U.S. 123, 154 - 156 (1951)
(FRANKFURTER, J., CONCURRING). 

/11/ CF. SCOTT, STANDING IN THE SUPREME COURT--A FUNCTIONAL
ANALYSIS, 86 HARY.  L. REV. 645 (1973). 

/12/ A SIMILAR STANDING ISSUE ARISES WHEN THE LITIGANT ASSERTS THE
RIGHTS OF THIRD PARTIES DEFENSIVELY, AS A BAR TO JUDGMENT AGAINST HIM. 
E.G., BARROWS V. JACKSON, 346 U.S. 249 (1953); MC GOWAN V. MARYLAND,
366 U.S. 420, 429 - 430 (1961).  IN SUCH CIRCUMSTANCES, THERE IS NO
ART. III STANDING PROBLEM; BUT THE PRUDENTIAL QUESTION IS GOVERNED BY
CONSIDERATIONS CLOSELY RELATED TO THE QUESTION WHETHER A PERSON IN THE
LITIGANT'S POSITION WOULD HAVE A RIGHT OF ACTION ON THE CLAIM.  SEE
PART IV, INFRA.     /13/ PETITIONER ORTIZ ALSO ALLEGED THAT AS A RESULT
OF SUCH EXCLUSION HE HAD TO INCUR SUBSTANTIAL COMMUTING EXPENSES
BETWEEN HIS RESIDENCE AND HIS FORMER PLACE OF EMPLOYMENT IN PENFIELD;
AND, IN SUPPORTING AFFIDAVITS, EACH PETITIONER RECITES AT SOME LENGTH
THE DISADVANTAGES OF HIS OR HER PRESENT HOUSING SITUATION AND HOW THAT
SITUATION MIGHT BE IMPROVED WERE RESIDENCE IN PENFIELD POSSIBLE.  FOR
PURPOSES OF STANDING, HOWEVER, IT IS THE EXCLUSION ITSELF THAT IS OF
CRITICAL IMPORTANCE, SINCE EXCLUSION ALONE WOULD VIOLATE THE ASSERTED
RIGHTS QUITE APART FROM ANY OBJECTIVE OR SUBJECTIVE DISADVANTAGE THAT
MAY FLOW FROM IT. 

/14/ IN HIS AFFIDAVIT SUBMITTED IN OPPOSITION TO RESPONDENTS'
MOTION TO DISMISS, PETITIONER ORTIZ STATED:  " SINCE MY JOB AT THAT
TIME AND CONTINUING UNTIL MAY OF 1972 WAS IN THE TOWN OF PENFIELD, I
INITIATED INQUIRIES ABOUT RENTING AND/OR BUYING A HOME IN THE TOWN OF
PENFIELD.  HOWEVER, BECAUSE OF MY INCOME BEING LOW OR MODERATE, I FOUND
THAT THERE WERE NO APARTMENT UNITS LARGE ENOUGH TO HOUSE MY FAMILY OF
WIFE AND SEVEN CHILDREN, NOR WERE THERE APARTMENT UNITS THAT WERE
AVAILABLE REASONABLY PRICED SO THAT I COULD EVEN AFFORD TO RENT THE
LARGEST APARTMENT UNIT.  I HAVE BEEN READING ADS IN THE ROCHESTER
METROPOLITAN NEWSPAPERS SINCE COMING TO ROCHESTER IN 1966 AND DURING
THAT TIME AND TO THE PRESENT TIME, I HAVE NOT LOCATED EITHER RENTAL
HOUSING OR HOUSING TO BUY IN PENFIELD."  APP.  37. 

PETITIONER REYES AVERRED THAT, FOR SOME TIME BEFORE LOCATING AND
PURCHASING THEIR PRESENT RESIDENCE IN ROCHESTER, SHE AND HER HUSBAND
HAD SEARCHED FOR A SUITABLE RESIDENCE IN SUBURBAN COMMUNITIES:  "(OUR
INVESTIGATION FOR HOUSING INCLUDED THE ROCHESTER BEDROOM COMMUNITIES OF
WEBSTER, IRONDEQUOIT, PENFIELD AND PERINTON.  OUR SEARCH OVER A PERIOD
OF TWO YEARS LED US TO NO POSSIBLE PURCHASE IN ANY OF THESE TOWNS." 
ID., AT 428.  PETITIONER SINKLER STATED THAT SHE HAD "SEARCHED FOR
ALTERNATE HOUSING IN THE ROCHESTER METROPOLITAN AREA," INCLUDING THE
TOWN OF PENFIELD, AND HAD FOUND THAT "A BLACK PERSON HAS NO CHOICE OF
HOUSING ...."  IN PARTICULAR, "THERE ARE NO APARTMENTS AVAILABLE IN THE
TOWN OF PENFIELD WHICH A PERSON OF MY INCOME LEVEL CAN AFFORD."  ID.,
AT 452 - 453.  PETITIONER BROADNAX SAID ONLY THAT SHE HAD "BOUGHT
NEWSPAPERS AND READ ADS AND WALKED TO LOOK FOR APARTMENTS UNTIL I FOUND
THE PLACE WHERE I NOW RESIDE.  I FOUND THAT THERE WAS VIRTUALLY NO
CHOICE OF HOUSING IN THE ROCHESTER AREA."  ID., AT 407. 

/15/ PENFIELD BETTER HOMES CONTEMPLATED A SERIES OF ONE- TO THREE
BEDROOM UNITS AND HOPED TO SELL THEM--AT THAT TIME--TO PERSONS WHO
EARNED FROM $5,000 TO $8,000 PER YEAR.  THE PENFIELD PLANNING BOARD
DENIED THE NECESSARY VARIANCE ON SEPTEMBER 9, 1969, BECAUSE OF
INCOMPATIBILITY WITH THE SURROUNDING NEIGHBORHOOD, PROJECTED TRAFFIC
CONGESTION, AND PROBLEMS OF SEVERE SOIL EROSION DURING CONSTRUCTION. 
ID., AT 629 - 633, 849 - 859, 883 - 884.  O' BRIEN HOMES, INC.,
PROJECTED 51 BUILDINGS, EACH CONTAINING FOUR FAMILY UNITS, DESIGNED FOR
SINGLE PEOPLE AND SMALL FAMILIES, AND CAPABLE OF BEING PURCHASED BY
PERSONS "OF LOW INCOME AND ACCUMULATED FUNDS" AND "OF MODERATE INCOME
WITH LIMITED FUNDS FOR DOWN PAYMENT ...."  ID., AT 634.  THE VARIANCE
FOR THIS PROJECT WAS DENIED BY THE PLANNING BOARD ON OCTOBER 12, 1971;
A REVISION OF THE PROPOSAL WAS RECONSIDERED BY THE PLANNING BOARD IN
APRIL 1972, AND, FROM ALL INDICATIONS OF RECORD, APPARENTLY REMAINS
UNDER CONSIDERATION.  THE RECORD ALSO INDICATES THE EXISTENCE OF
SEVERAL PROPOSALS FOR "PLANNED UNIT DEVELOPMENT"; BUT WE ARE NOT TOLD
WHETHER THESE PROJECTS WOULD ALLOW SALE AT PRICES THAT PERSONS OF LOW
OR MODERATE INCOME ARE LIKELY TO BE ABLE TO AFFORD.  THEREIS, MORE
IMPORTANTLY, NOT THE SLIGHTEST SUGGESTION THAT THEY WOULD BE ADEQUATE,
AND OF SUFFICIENTLY LOW COST, TO MEET THESE PETITIONERS' NEEDS. 

/16/ ORTIZ STATES IN HIS AFFIDAVIT THAT HE IS NOW PURCHASING AND
RESIDES IN A SIX-BEDROOM DWELLING IN WAYLAND, N.Y.; AND THAT HE OWNS
AND RECEIVES RENTAL INCOME FROM A HOUSE IN ROCHESTER.  HE IS CONCERNED
WITH FINDING A HOUSE OR APARTMENT LARGE ENOUGH FOR HIMSELF, HIS WIFE,
AND SEVEN CHILDREN, BUT STATES THAT HE CAN AFFORD TO SPEND A MAXIMUM OF
$120 PER MONTH FOR HOUSING.  ID., AT 370.  BROADNAX SEEKS A FOUR
BEDROOM HOUSE OR APARTMENT FOR HERSELF AND SIX CHILDREN, AND CAN SPEND
A MAXIMUM OF ABOUT $120 PER MONTH FOR HOUSING.  ID., AT 417 - 418. 
SINKLER ALSO STATES THAT SHE CAN SPEND $120 PER MONTH FOR HOUSING FOR
HERSELF AND TWO CHILDREN.  ID., AT 452 - 453.  THUS, AT LEAST IN THE
CASES OF ORTIZ AND BROADNAX, IT IS DOUBTFUL THAT THEIR STATED NEEDS
COULD HAVE BEEN SATISFIED BY THE SMALL HOUSING UNITS CONTEMPLATED IN
THE ONLY MODERATE-COST PROJECTS SPECIFICALLY DESCRIBED IN THE RECORD. 
MOREOVER, THERE IS NO INDICATION THAT ANY OF THE PETITIONERS HAD THE
RESOURCES NECESSARY TO ACQUIRE THE HOUSING AVAILABLE IN THE PROJECTS. 
THE MATTER IS LEFT ENTIRELY OBSCURE.  THE INCOME AND HOUSING BUDGET
FIGURES SUPPLIED IN PETITIONERS' AFFIDAVITS ARE PRESUMABLY FOR THE YEAR
1972.  THE VAGUE DESCRIPTION OF THE PROPOSED O' BRIEN DEVELOPMENT
STRONGLY SUGGESTS THAT THE UNITS, EVEN IF ADEQUATE FOR THEIR NEEDS,
WOULD HAVE BEEN BEYOND THE MEANS AT LEAST OF SINKLER AND BROADNAX.  SEE
N. 15, SUPRA.  THE PENFIELD BETTER HOMES PROJECTED PRICE FIGURES WERE
FOR 1969, AND MUST BE ASSUMED--EVEN IF SUBSIDIES MIGHT STILL BE
AVAILABLE--TO HAVE INCREASED SUBSTANTIALLY BY 1972, WHEN THE COMPLAINT
WAS FILED.  PETITIONER REYES PRESENTS A SPECIAL CASE:  SHE STATES THAT
HER FAMILY HAS AN INCOME OF OVER $14,000 PER YEAR, THAT SHE CAN AFFORD
$231 PER MONTH FOR HOUSING, AND THAT, IN THE PAST AND APPARENTLY NOW,
SHE WANTS TO PURCHASE A RESIDENCE.  AS NOTED ABOVE, SEE N. 5, SUPRA,
THE TERM "LOW AND MODERATE INCOME" IS NOWHERE DEFINED IN THE COMPLAINT;
BUT PENFIELD BETTER HOMES DEFINED THE TERM AS BETWEEN $5,000 AND $8,000
PER YEAR.  SEE N. 15, SUPRA.  SINCE THAT PROJECT WAS TO BE SUBSIDIZED,
PRESUMABLY PETITIONER REYES WOULD HAVE BEEN INELIGIBLE.  THERE IS NO
INDICATION THAT IN NONSUBSIDIZED PROJECTS, REMOVAL OF THE CHALLENGED
ZONING RESTRICTIONS--IN 1972--, WOULD HAVE REDUCED THE PRICE ON NEW
SINGLE-FAMILY RESIDENCES TO A LEVEL THAT PETITIONER REYES THOUGHT SHE
COULD AFFORD. 

/17/ SEE, E. G., PARK VIEW HEIGHTS CORP. V. CITY OF BLACK JACK, 467
F.2D 1208 (CA8 1972); CROW V. BROWN, 457 F.2D 788 (CA5 1972), AFF'G 332
F. SUPP. 382 (ND GA. 1971); KENNEDY PARK HOMES ASSN. V. CITY OF
LACKAWANNA, 436 F.2D 108 (CA2 1970), CERT. DENIED, 401 U.S. 1010
(1971); DAILEY V. CITY OF LAWTON, 425 F. 2D 1037 (CA10 1970).  CF.
UNITED FARMWORKERS OF FLORIDA HOUSING PROJECT, INC. V. CITY OF DELRAY
BEACH, 493 F.2D 799 (CA5 1974). 

/18/ THIS IS NOT TO SAY THAT THE PLAINTIFF WHO CHALLENGES A ZONING
ORDINANCE OR ZONING PRACTICES MUST HAVE A PRESENT CONTRACTUAL INTEREST
IN A PARTICULAR PROJECT.  A PARTICULARIZED PERSONAL INTEREST MAY BE
SHOWN IN VARIOUS WAYS, WHICH WE NEED NOT UNDERTAKE TO IDENTIFY IN THE
ABSTRACT.  BUT USUALLY THE INITIAL FOCUS SHOULD BE ON A PARTICULAR
PROJECT.  SEE, E.G., CASES CITED IN N. 17, SUPRA.  WE ALSO NOTE THAT
ZONING LAWS AND THEIR PROVISIONS, LONG CONSIDERED ESSENTIAL TO
EFFECTIVE URBAN PLANNING, ARE PECULIARLY WITHIN THE PROVINCE OF STATE
AND LOCAL LEGISLATIVE AUTHORITIES.  THEY ARE, OF COURSE, SUBJECT TO
JUDICIAL REVIEW IN A PROPER CASE.  BUT CITIZENS DISSATISFIED WITH
PROVISIONS OF SUCH LAWS NEED NOT OVERLOOK THE AVAILABILITY OF THE
NORMAL DEMOCRATIC PROCESS. 

/19/ CF. UNITED STATES V. SCRAP, 412 U.S. 669, 688 - 690 (1973).  BUT
SEE ROE V. WADE, 410 U.S. 113, 127 - 129 (1973). 

/20/ SEE GENERALLY SEDLER, STANDING TO ASSERT CONSTITUTIONAL JUS
TERTII IN THE SUPREME COURT, 71 YALE L.J. 599 (1962).  CF.  BIGELOW V.
VIRGINIA, 421 U.S. 809, 815 - 817 (1975). 

/21/ THE AMICUS BRIEF OF THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS
UNDER LAW ARGUES, TO THE CONTRARY, THAT PETITIONERS' ALLEGATIONS DO
STATE COLORABLE CLAIMS UNDER THE 1968 ACT, AND THAT METRO-ACT'S
PENFIELD MEMBERS ARE "PERSONS) AGGRIEVED" WITHIN THE MEANING OF SEC.
810(A).  IT IS SIGNIFICANT, WE THINK, THAT PETITIONERS NOWHERE ADOPT
THIS ARGUMENT.  AS WE READ THE COMPLAINT, PETITIONERS HAVE NOT ALLEGED
THAT RESPONDENTS "REFUSE TO NEGOTIATE FOR THE SALE OR RENTAL OF, OR
OTHERWISE MAKE UNAVAILABLE OR DENY, A DWELLING TO ANY PERSON BECAUSE OF
RACE, COLOR,... OR NATIONAL ORIGIN," OR THAT THEY "DISCRIMINATE AGAINST
ANY PERSON IN THE TERMS, CONDITIONS, OR PRIVILEGES OF SALE OR RENTAL OF
A DWELLING, OR IN THE PROVISION OF SERVICES OR FACILITIES IN CONNECTION
THEREWITH, BECAUSE OF RACE, COLOR, .... OR NATIONAL ORIGIN."  42 U.S.C.
SEC. 3604 (A) AND (B) (EMPHASIS ADDDED).  INSTEAD THE GRAVAMEN OF THE
COMPLAINT IS THAT THE CHALLENGED ZONING PRACTICES HAVE THE PURPOSE AND
EFFECT OF EXCLUDING PERSONS OF LOW AND MODERATE INCOME FROM RESIDING IN
THE TOWN, AND THAT THIS IN TURN HAS THE CONSEQUENCE OF EXCLUDING
MEMBERS OF RACIAL OR ETHNIC MINORITY GROUPS.  THIS READING OF THE
COMPLAINT IS CONFIRMED BY PETITIONERS' BRIEF IN THIS COURT.  BRIEF FOR
PETITIONERS 41.  WE INTIMATE NO VIEW AS TO WHETHER, HAD THE COMPLAINT
ALLEGED PURPOSEFUL RACIAL OR ETHNIC DISCRIMINATION, METRO-ACT WOULD
HAVE STATED A CLAIM UNDER SEC. 804.  SEE PARK VIEW HEIGHTS CORP. V.
CITY OF BLACK JACK, 467 F.2D 1208 (CA8 1972). 

/22/ METRO-ACT DOES NOT ALLEGE THAT A CONTRACTUAL OR OTHER
RELATIONSHIP PROTECTED UNDER SEC. 1981 AND 1982 EXISTED BETWEEN ITS
PENFIELD MEMBERS AND ANY PARTICULAR PERSON EXCLUDED FROM RESIDING IN
THE TOWN, NOR THAT ANY SUCH RELATIONSHIP WAS EITHER PUNISHED OR
DISRUPTED BY RESPONDENTS.  SEE SULLIVAN V. LITTLE HUNTING PARK, 396
U.S. 229, 237 (1969). 

/23/ IF IT HAD BEEN AVERRED THAT THE ZONING ORDINANCE OR RESPONDENTS
WERE UNLAWFULLY BLOCKING A PENDING CONSTRUCTION PROJECT, THERE WOULD BE
A FURTHER QUESTION AS TO WHETHER PENFIELD BETTER HOMES HAD EMPLOYED
AVAILABLE ADMINISTRATIVE REMEDIES, AND WHETHER IT SHOULD BE REQUIRED TO
DO SO BEFORE A FEDERAL COURT CAN INTERVENE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WITH ALL RESPECT, I THINK THAT THE COURT READS THE COMPLAINT AND THE
RECORD WITH ANTAGONISTIC EYES.  THERE ARE IN THE BACKGROUND OF THIS
CASE CONTINUING STRONG TIDES OF OPINION TOUCHING ON VERY SENSITIVE
MATTERS, SOME OF WHICH INVOLVE RACE, SOME CLASS DISTINCTIONS BASED ON
WEALTH. 

A CLEAN, SAFE, AND WELL-HEATED HOME IS NOT ENOUGH FOR SOME PEOPLE. 
SOME WANT TO LIVE WHERE THE NEIGHBORS ARE CONGENIAL AND HAVE SOCIAL AND
POLITICAL OUTLOOKS SIMILAR TO THEIR OWN.  THIS PROBLEM OF SHARING AREAS
OF THE COMMUNITY IS AKIN TO THAT WHEN ONE WANTS TO CONTROL THE KIND OF
PERSON WHO SHARES HIS OWN ABODE.  METRO-ACT OF ROCHESTER, INC., AND THE
HOUSING COUNCIL IN THE MONROE COUNTY AREA, INC.--TWO OF THE
ASSOCIATIONS WHICH BRING THIS SUIT--DO IN MY OPINION REPRESENT THE
COMMUNAL FEELING OF THE ACTUAL RESIDENTS AND HAVE STANDING. 

THE ASSOCIATIONS HERE ARE IN A POSITION NOT UNLIKE THAT CONFRONTED
BY THE COURT IN NAACP V. ALABAMA, 357 U.S. 449 (1958).  THEIR PROTEST
AGAINST THE CREATION OF THIS SEGREGATED COMMUNITY EXPRESSES THE DESIRE
OF THEIR MEMBERS TO LIVE IN A DESEGREGATED COMMUNITY--A DESIRE WHICH
GIVES STANDING TO SUE UNDER THE CIVIL RIGHTS ACT OF 1968 AS WE HELD IN
TRAFFICANTE V. METROPOLITAN LIFE INS. CO., 409 U.S. 205 (1972). 

THOSE WHO VOICE THESE VIEWS HERE SEEK TO RELY ON OTHER CIVIL RIGHTS
ACTS AND ON THE CONSTITUTION, BUT THEY TOO SHOULD HAVE STANDING, BY
VIRTUE OF THE DIGNITY OF THEIR CLAIM, TO HAVE THE CASE DECIDED ON THE
MERITS. 

STANDING HAS BECOME A BARRIER TO ACCESS TO THE FEDERAL COURTS, JUST
AS "THE POLITICAL QUESTION" WAS IN EARLIER DECADES.  THE MOUNTING
CASELOAD OF FEDERAL COURTS IS WELL KNOWN.  BUT CASES SUCH AS THIS ONE
REFLECT FESTERING SORES IN OUR SOCIETY; AND THE AMERICAN DREAM TEACHES
THAT IF ONE REACHES HIGH ENOUGH AND PERSISTS THERE IS A FORUM WHERE
JUSTICE IS DISPENSED.  I WOULD LOWER THE TECHNICAL BARRIERS AND LET THE
COURTS SERVE THAT ANCIENT NEED.  THEY CAN IN TIME BE CURBED BY
LEGISLATIVE OR CONSTITUTIONAL RESTRAINTS IF AN EMERGENCY ARISES. 

WE ARE TODAY FAR FROM FACING AN EMERGENCY.  FOR IN ALL FRANKNESS, NO
JUSTICE OF THIS COURT NEED WORK MORE THAN FOUR DAYS A WEEK TO CARRY HIS
BURDEN.  I HAVE FOUND IT A COMFORTABLE BURDEN CARRIED EVEN IN MY MONTHS
OF HOSPITALIZATION. 

AS MR. JUSTICE BRENNAN MAKES CLEAR IN HIS DISSENT, THE ALLEGED
PURPOSE OF THE ORDINANCE UNDER ATTACK WAS TO PRECLUDE LOW- AND MODERATE
INCOME PEOPLE AND NON-WHITES FROM LIVING IN PENFIELD.  THE ZONING POWER
IS CLAIMED TO HAVE BEEN USED HERE TO FOIST AN UN-AMERICAN COMMUNITY
MODEL ON THE PEOPLE OF THIS AREA.  I WOULD LET THE CASE GO TO TRIAL AND
HAVE ALL THE FACTS BROUGHT OUT.  INDEED, IT WOULD BE BETTER PRACTICE TO
DECIDE THE QUESTION OF STANDING ONLY WHEN THE MERITS HAVE BEEN
DEVELOPED. 

I WOULD REVERSE THE COURT OF APPEALS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE WHITE AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

IN THIS CASE, A WIDE RANGE OF PLAINTIFFS, ALLEGING VARIOUS KINDS OF
INJURIES, CLAIMED TO HAVE BEEN AFFECTED BY THE PENFIELD ZONING
ORDINANCE, ON ITS FACE AND AS APPLIED, AND BY OTHER PRACTICES OF THE
DEFENDANT OFFICIALS OF PENFIELD. 

ALLEGING THAT AS A RESULT OF THESE LAWS AND PRACTICES LOW- AND
MODERATE-INCOME AND MINORITY PEOPLE HAVE BEEN EXCLUDED FROM PENFIELD,
AND THAT THIS EXCLUSION IS UNCONSTITUTIONAL, PLAINTIFFS SOUGHT
INJUNCTIVE, DECLARATORY, AND MONETARY RELIEF.  THE COURT TODAY, IN AN
OPINION THAT PURPORTS TO BE A "STANDING" OPINION BUT THAT ACTUALLY, I
BELIEVE, HAS OVERTONES OF OUTMODED NOTIONS OF PLEADING AND OF
JUSTICIABILITY, REFUSES TO FIND THAT ANY OF THE VARIOUSLY SITUATED
PLAINTIFFS CAN CLEAR NUMEROUS HURDLES, SOME CONSTRUCTED HERE FOR THE
FIRST TIME, NECESSARY TO ESTABLISH "STANDING."  WHILE THE COURT GIVES
LIP SERVICE TO THE PRINCIPLE, OFT REPEATED IN RECENT YEARS, /1/ THAT
"STANDING IN NO WAY DEPENDS ON THE MERITS OF THE PLAINTIFF'S CONTENTION
THAT PARTICULAR CONDUCT IS ILLEGAL," ANTE, AT 500, IN FACT THE OPINION,
WHICH TOSSES OUT OF COURT ALMOST EVERY CONCEIVABLE KIND OF PLAINTIFF
WHO COULD BE INJURED BY THE ACTIVITY CLAIMED TO BE UNCONSTITUTIONAL,
CAN BE EXPLAINED ONLY BY AN INDEFENSIBLE HOSTILITY TO THE CLAIM ON THE
MERITS.  I CAN APPRECIATE THE COURT'S RELUCTANCE TO ADJUDICATE THE
COMPLEX AND DIFFICULT LEGAL QUESTIONS INVOLVED IN DETERMINING THE
CONSTITUTIONALITY OF PRACTICES WHICH ASSERTEDLY LIMIT RESIDENCE IN A
PARTICULAR MUNICIPALITY TO THOSE WHO ARE WHITE AND RELATIVELY WELL OFF,
AND I ALSO UNDERSTAND THAT THE MERITS OF THIS CASE COULD INVOLVE GRAVE
SOCIOLOGICAL AND POLITICAL RAMIFICATIONS.  BUT COURTS CANNOT REFISE TO
HEAR A CASE ON THE MERITS MERELY BECAUSE THEY WOULD PREFER NOT TO, AND
IT IS QUITE CLEAR, WHEN THE RECORD IS VIEWED WITH DISPASSION, THAT AT
LEAST THREE OF THE GROUPS OF PLAINTIFFS HAVE MADE ALLEGATIONS, AND
SUPPORTED THEM WITH AFFIDAVITS AND DOCUMENTARY EVIDENCE, SUFFICIENT TO
SURVIVE A MOTION TO DISMISS FOR LACK OF STANDING.  /2/

        I 

BEFORE CONSIDERING THE THREE GROUPS I BELIEVE CLEARLY TO HAVE
STANDING--THE LOW-INCOME, MINORITY PLAINTIFFS, ROCHESTER HOME BUILDERS
ASSOCIATION, INC., AND THE HOUSING COUNCIL IN THE MONROE COUNTY AREA,
INC.--IT WILL BE HELPFUL TO REVIEW THE PICTURE PAINTED BY THE
ALLEGATIONS AS A WHOLE, IN ORDER BETTER TO COMPREHEND THE INTERWOVEN
INTERESTS OF THE VARIOUS PLAINTIFFS.  INDEED, ONE GLARING DEFECT OF THE
COURT'S OPINION IS THAT IT VIEWS EACH SET OF PLAINTIFFS AS IF IT WERE
PROSECUTING A SEPARATE LAWSUIT, REFUSING TO RECOGNIZE THAT THE
INTERESTS ARE INTERTWINED, AND THAT THE STANDING OF ANY ONE GROUP MUST
TAKE INTO ACCOUNT ITS POSITION VIS-A-VIS THE OTHERS.  FOR EXAMPLE, THE
COURT SAYS THAT THE LOW-INCOME MINORITY PLAINTIFFS HAVE NOT ALLEGED
FACTS SUFFICIENT TO SHOW THAT BUT FOR THE EXCLUSIONARY PRACTICES
CLAIMED, THEY WOULD BE ABLE TO RESIDE IN PENFIELD.  THE COURT THEN
INTIMATES THAT SUCH A CAUSAL RELATIONSHIP COULD BE SHOWN ONLY IF "THE
INITIAL FOCUS (IS) ON A PARTICULAR PROJECT."  ANTE, AT 508 N. 18. 
LATER, THE COURT OBJECTS TO THE ABILITY OF THE HOUSING COUNCIL TO
PROSECUTE THE SUIT ON BEHALF OF ITS MEMBER, PENFIELD BETTER HOMES
CORP., DESPITE THE FACT THAT BETTER HOMES HAD DISPLAYED AN INTEREST IN
A PARTICULAR PROJECT, BECAUSE THAT PROJECT WAS NO LONGER LIVE.  THUS,
WE MUST SUPPOSE THAT EVEN IF THE LOW-INCOME PLAINTIFFS HAD ALLEGED A
DESIRE TO LIVE IN THE BETTER HOMES PROJECT, THAT ALLEGATION WOULD BE
INSUFFICIENT BECAUSE IT APPEARS THAT PARTICULAR PROJECT MIGHT NEVER BE
BUILT. 

THE RIGHTS OF LOW-INCOME MINORITY PLAINTIFFS WHO DESIRE TO LIVE IN A
LOCALITY, THEN, SEEM TO TURN ON THE WILLINGNESS OF A THIRD PARTY TO
LITIGATE THE LEGALITY OF PRECLUSION OF A PARTICULAR PROJECT, DESPITE
THE FACT THAT THE THIRD PARTY MAY HAVE NO ECONOMIC INCENTIVE TO INCUR
THE COSTS OF LITIGATION WITH REGARD TO ONE PROJECT, AND DESPITE THE
FACT THAT THE LOW-INCOME-MINORITY PLAINTIFFS' INTEREST IS NOT TO LIVE
IN A PARTICULAR PROJECT BUT TO LIVE SOMEWHERE IN THE TOWN IN A DWELLING
THEY CAN AFFORD. 

ACCEPTING, AS WE MUST, THE VARIOUS ALLEGATIONS AND AFFIDAVITS AS
TRUE, THE FOLLOWING PICTURE EMERGES:  THE PENFIELD ZONING ORDINANCE, BY
VIRTUE OF REGULATIONS CONCERNING "LOT AREA, SET BACKS, ... POPULATION
DENSITY, DENSITY OF USE, UNITS PER ACRE, FLOOR AREA, SEWER
REQUIREMENTS, TRAFFIC FLOW, INGRESS AND EGRESS(, AND) STREET LOCATION,"
MAKES "PRACTICALLY AND ECONOMICALLY IMPOSSIBLE THE CONSTRUCTION OF
SUFFICIENT NUMBERS OF LOW AND MODERATE INCOME" HOUSING.  APP. 25.  THE
PURPOSE OF THIS ORDINANCE WAS TO PRECLUDE LOW- AND MODERATE-INCOME
PEOPLE AND NONWHITES FROM LIVING IN PENFIELD, ID., AT 15, AND,
PARTICULARLY BECAUSE OF REFUSALS TO GRANT ZONING VARIANCES AND BUILDING
PERMITS AND BY USING SPECIAL PERMIT PROCEDURES AND OTHER DEVICES, ID.,
AT 17, THE DEFENDANTS SUCCEEDED IN KEEPING "LOW AND MODERATE INCOME
PERSONS ... AND NON-WHITE PERSONS ... FROM RESIDING WITHIN ...
PENFIELD."  ID., AT 18. 

AS A RESULT OF THESE PRACTICES, VARIOUS OF THE PLAINTIFFS WERE
AFFECTED IN DIFFERENT WAYS.  FOR EXAMPLE, PLAINTIFFS ORTIZ, REYES,
SINKLER, AND BROADNAX, PERSONS OF LOW OR MODERATE INCOME AND MEMBERS OF
MINORITY GROUPS, ALLEGED THAT "AS A RESULT" OF RESPONDENTS'
EXCLUSIONARY SCHEME, ID., AT 18, 21, 23 - 24,26, 29 (EMPHASIS
SUPPLIED), THEY COULD NOT LIVE IN PENFIELD, ALTHOUGH THEY DESIRED AND
ATTEMPTED TO DO SO, AND CONSEQUENTLY INCURRED GREATER COMMUTING COSTS,
LIVED IN SUBSTANDARD HOUSING, AND HAD FEWER SERVICES FOR THEIR FAMILIES
AND POORER SCHOOLS FOR THEIR CHILDREN THAN IF THEY HAD LIVED IN
PENFIELD.  MEMBERS OF THE ROCHESTER HOME BUILDERS ASSOCIATION WERE
PREVENTED FROM CONSTRUCTING HOMES FOR LOW- AND MODERATE-INCOME PEOPLE
IN PENFIELD, ID., AT 153, HARMING THEM ECONOMICALLY.  AND PENFIELD
BETTER HOMES, A MEMBER OF THE HOUSING COUNCIL, WAS FRUSTRATED IN ITS
ATTEMPT TO BUILD MODERATE-INCOME HOUSING, ID., AT 174. 

THUS, THE PROTRAIT WHICH EMERGES FROM THE ALLEGATIONS AND AFFIDAVITS
IS ONE OF TOTAL, PURPOSEFUL, INTRANSIGENT EXCLUSION OF CERTAIN CLASSES
OF PEOPLE FROM THE TOWN, PURSUANT TO A CONSCIOUS SCHEME NEVER DEVIATED
FROM.  BECAUSE OF THIS SCHEME, THOSE INTERESTED IN BUILDING HOMES FOR
THE EXCLUDED GROUPS WERE FACED WITH INSURMOUNTABLE DIFFICULTIES, AND
THOSE OF THE EXCLUDED GROUPS SEEKING HOMES IN THE LOCALITY QUICKLY
LEARNED THAT THEIR ATTEMPTS WERE FUTILE.  YET, THE COURT TURNS THE VERY
SUCCESS OF THE ALLEGEDLY UNCONSTITUTIONAL SCHEME INTO A BARRIER TO A
LAWSUIT SEEKING ITS INVALIDATION.  IN EFFECT, THE COURT TELLS THE LOW
INCOME MINORITY AND BUILDING COMPANY PLAINTIFFS THEY WILL NOT BE
PERMITTED TO PROVE WHAT THEY HAVE ALLEGED--THAT THEY COULD AND WOULD
BUILD AND LIVE IN THE TOWN IF CHANGES WERE MADE IN THE ZONING ORDINANCE
AND ITS APPLICATION--BECAUSE THEY HAVE NOT SUCCEEDED IN BREACHING,
BEFORE THE SUIT WAS FILED, THE VERY BARRIERS WHICH ARE THE SUBJECT OF
THE SUIT. 

        II

        LOW-INCOME AND MINORITY PLAINTIFFS 

AS RECOUNTED ABOVE, PLAINTIFFS ORTIZ, BROADNAX, REYES, AND SINKLER
ALLEGED THAT "AS A RESULT" OF RESPONDENTS' EXCLUSIONARY PRACTICES, THEY
WERE UNABLE, DESPITE ATTEMPTS, TO FIND THE HOUSING THEY DESIRED IN
PENFIELD, AND CONSEQUENTLY HAVE INCURRED HIGH COMMUTING EXPENSES,
RECEIVED POORER MUNICIPAL SERVICES, /3/ AND, IN SOME INSTANCES, HAVE
BEEN RELEGATED TO LIVE IN SUBSTANDARD HOUSING.  /4/  THE COURT DOES
NOT, AS IT COULD NOT, SUGGEST THAT THE INJURIES, IF PROVED, WOULD BE
INSUFFICIENT TO GIVE PETITIONERS THE REQUISITE "PERSONAL STAKE IN THE
OUTCOME OF THE CONTROVERSY AS TO ASSURE THE CONCRETE ADVERSENESS WHICH
SHARPENS THE PRESENTATION OF ISSUES," BAKER V. CARR, 369 U.S. 186, 204
(1962); FLAST V. COHEN, 392 U.S. 83, 99 (1968). 

RATHER, IT IS ABUNDANTLY CLEAR THAT THE HARM ALLEGED SATISFIES THE
"INJURY IN FACT, ECONOMIC OR OTHERWISE," DATA PROCESSING SERVICE V.
CAMP, 397 U.S. 150, 152 (1970), REQUIREMENT WHICH IS PREREQUISITE TO
STANDING IN FEDERAL COURT.  THE HARMS CLAIMED--CONSISTING OF OUT-OF
POCKET LOSSES AS WELL AS DENIAL OF SPECIFICALLY ENUMERATED SERVICES
AVAILABLE IN PENFIELD BUT NOT IN THESE PETITIONERS' PRESENT
COMMUNITIES, SEE NN. 3 AND 4, SUPRA--ARE OBVIOUSLY MORE PALPABLE AND
CONCRETE THAN THOSE HELD SUFFICIENT TO SUSTAIN STANDING IN OTHER
CASES.  SEE UNITED STATES V. SCRAP, 412 U.S. 669, 686 (1973); SIERRA
CLUB V. MORTON, 405 U.S. 727, 735 N. 8, 738, AND N. 13 (1972).  CF.
DATA PROCESSING, SUPRA, AT 154. 

INSTEAD, THE COURT INSISTS THAT THESE PETITIONERS' ALLEGATIONS ARE
INSUFFICIENT TO SHOW THAT THE HARMS SUFFERED WERE CAUSED BY
PETITIONERS' ALLEGEDLY UNCONSTITUTIONAL PRACTICES, BECAUSE "THEIR
INABILITY TO RESIDE IN PENFIELD (MAY BE) THE CONSEQUENCE OF THE
ECONOMICS OF THE AREA HOUSING MARKET, RATHER THAN OF RESPONDENTS'
ASSERTEDLY ILLEGAL ACTS."  ANTE, AT 506. 

TRUE, THIS COURT HAS HELD THAT TO MAINTAIN STANDING, A PLAINTIFF MUST
NOT ONLY ALLEGE AN INJURY BUT MUST ALSO ASSERT A "'DIRECT'
RELATIONSHIP BETWEEN THE ALLEGED INJURY AND THE CLAIM SOUGHT TO BE
ADJUDICATED," LINDA R.S. V. RICHARD D., 410 U.S. 614, 618 (1973)--THAT
IS, "(THE PARTY WHO INVOKES (JUDICIAL) POWER MUST BE ABLE TO SHOW ...
THAT HE HAS SUSTAINED OR IS IMMEDIATELY IN DANGER OF SUSTAINING SOME
DIRECT INJURY AS THE RESULT OF (A STATUE'S) ENFORCEMENT." 

MASSACHUSETTS V. MELLON, 262 U.S. 447, 488 (1923) (EMPHASIS
SUPPLIED); LINDA R.S., SUPRA, AT 618.  BUT AS THE ALLEGATIONS RECITED
ABOVE SHOW, THESE PETITIONERS HAVE ALLEGED PRECISELY WHAT OUR CASES
REQUIRE--THAT BECAUSE OF THE EXCLUSIONARY PRACTICES OF PETITIONERS,
THEY CANNOT LIVE IN PENFIELD AND HAVE SUFFERED HARM.  /5/ 

THUS, THE COURT'S REAL HOLDING IS NOT THAT THESE PETITIONERS HAVE
NOT ALLEGED AN INJURY RESULTING FROM RESPONDENTS' ACTION, BUT THAT THEY
ARE NOT TO BE ALLOWED TO PROVE ONE, BECAUSE "REALIZATION OF
PETITIONERS' DESIRE TO LIVE IN PENFIELD ALWAYS HAS DEPENDED ON THE
EFFORTS AND WILLINGNESS OF THIRD PARTIES TO BUILD LOW- AND MODERATE
COST HOUSING," ANTE, AT 505, AND "THE RECORD IS DEVOID OF ANY
INDICATION THAT ... (ANY) PROJECTS, WOULD HAVE SATISFIED PETITIONERS'
NEEDS AT PRICES THEY COULD AFFORD."  ANTE, AT 506. 

CERTAINLY, THIS IS NOT THE SORT OF DEMONSTRATION THAT CAN OR SHOULD
BE REQUIRED OF PETITIONERS AT THIS PRELIMINARY STAGE.  IN SCRAP, SUPRA,
A SIMILAR CHALLENGE WAS MADE:  IT WAS CLAIMED THAT THE ALLEGATIONS WERE
VAGUE, 412 U.S., AT 689 N. 15, AND THAT THE CAUSATION THEORY ASSERTED
WAS UNTRUE, ID., AT 689. 

WE SAID:  " IF ... THESE ALLEGATIONS WERE IN FACT UNTRUE, THEN THE
APPELLANTS SHOULD HAVE MOVED FOR SUMMARY JUDGMENT ON THE STANDING ISSUE
AND DEMONSTRATED TO THE DISTRICT COURT THAT THE ALLEGATIONS WERE SHAM
AND RAISED NO GENUINE ISSUE OF FACT.  WE CANNOT SAY ... THAT THE
APPELLEES COULD NOT PROVE THEIR ALLEGATIONS WHICH, IF PROVED, WOULD
PLACE THEM SQUARELY AMONG THOSE PERSONS INJURED IN FACT."  ID., AT 689
690.  /6/ SEE ALSO JENKINS V. MC KEITHEN, 395 U.S. 411, 421 - 422
(1969). 

HERE, THE VERY FACT THAT, AS THE COURT STRESSES, THESE PETITIONERS'
CLAIM RESTS IN PART UPON PROVING THE INTENTIONS AND CAPABILITIES OF
THIRD PARTIES TO BUILD IN PENFIELD SUITABLE HOUSING WHICH THEY CAN
AFFORD, COUPLED WITH THE EXCLUSIONARY CHARACTER OF THE CLAIM ON THE
MERITS, MAKES IT PARTICULARLY INAPPROPRIATE TO ASSUME THAT THESE
PETITIONERS' LACK OF SPECIFICITY REFLECTS A FATAL WEAKNESS IN THEIR
THEORY OF CAUSATION.  /7/ OBVIOUSLY THEY CANNOT BE EXPECTED, PRIOR TO
DISCOVERY AND TRIAL, TO KNOW THE FUTURE PLANS OF BUILDING COMPANIES,
THE PRECISE DETAILS OF THE HOUSING MARKET IN PENFIELD, OR EVERYTHING
WHICH HAS TRANSPIRED IN 15 YEARS OF APPLICATION OF THE PENFIELD ZONING
ORDINANCE, INCLUDING EVERY HOUSING PLAN SUGGESTED AND REFUSED.  TO
REQUIRE THEM TO ALLEGE SUCH FACTS IS TO REQUIRE THEM TO PROVE THEIR
CASE ON PAPER IN ORDER TO GET INTO COURT AT ALL, REVERTING TO THE FORM
OF FACT PLEADING LONG ABJURED IN THE FEDERAL COURTS.  THIS COURT HAS
NOT REQUIRED SUCH UNACHIEVABLE SPECIFICITY IN STANDING CASES IN THE
PAST, SEE SCRAP, SUPRA, AND JENKINS, SUPRA, AND THE FACT THAT IT DOES
SO NOW CAN ONLY BE EXPLAINED BY AN INDEFENSIBLE DETERMINATION BY THE
COURT TO CLOSE THE DOORS OF THE FEDERAL COURTS TO CLAIMS OF THIS KIND. 
UNDERSTANDABLY, TODAY'S DECISION WILL BE READ AS REVEALING HOSTILITY TO
BREAKING DOWN EVEN UNCONSTITUTIONAL ZONING BARRIERS THAT FRUSTRATE THE
DEEP HUMAN YEARING OF LOW-INCOME AND MINORITY GROUPS FOR DECENT HOUSING
THEY CAN AFFORD IN DECENT SURROUNDINGS, SEE NN. 3 AND 4, SUPRA.

 III

        ASSOCIATIONS INCLUDING BUILDING CONCERNS 

TWO OF THE PETITIONERS ARE ORGANIZATIONS AMONG WHOSE MEMBERS ARE
BUILDING CONCERNS.  BOTH OF THESE ORGANIZATIONS, HOME BUILDERS AND
HOUSING COUNCIL, ALLEGED THAT THESE CONCERNS HAVE ATTEMPTED TO BUILD IN
PENFIELD LOW- AND MODERATE-INCOME HOUSING, BUT HAVE BEEN STYMIED BY THE
ZONING ORDINANCE AND REFUSAL TO GRANT INDIVIDUAL RELIEF THEREFROM. 

SPECIFICALLY, HOME BUILDERS, A TRADE ASSOCIATION OF CONCERNS ENGAGED
IN CONSTRUCTING AND MAINTAINING RESIDENTIAL HOUSING IN THE ROCHESTER
AREA, ALLEGED THAT "(DURING THE PAST 15 YEARS, OVER 80% OF THE PRIVATE
HOUSING UNITS CONSTRUCTED IN THE TOWN OF PENFIELD HAVE BEEN CONSTRUCTED
BY (ITS) MEMBERS."  APP.  147.  BECAUSE OF RESPONDENTS'  REFUSAL TO
GRANT RELIEF FROM PENFIELD'S RESTRICTIVE HOUSING STATUTES, MEMBERS OF
HOME BUILDERS COULD NOT PROCEED WITH PLANNED LOW- AND MODERATE-INCOME
HOUSING PROJECTS, ID., AT 157, AND THEREBY LOST PROFITS.  ID., AT 156. 

HOUSING COUNCIL NUMBERS AMONG ITS MEMBERS AT LEAST 17 GROUPS
INVOLVED IN THE DEVELOPMENT AND CONSTRUCTION OF LOW- AND MIDDLE-INCOME
HOUSING.  IN PARTICULAR, ONE MEMBER, PENFIELD BETTER HOMES, "IS AND HAS
BEEN ACTIVELY ATTEMPTING TO DEVELOP MODERATE INCOME HOUSING IN...
PENFIELD" (EMPHASIS SUPPLIED), ID., AT 174, BUT HAS BEEN UNABLE TO
SECURE THE NECESSARY APPROVALS.  IBID. 

THE COURT FINDS THAT THESE TWO ORGANIZATIONS LACK STANDING TO SEEK
PROSPECTIVE RELIEF FOR BASICALLY THE SAME REASONS:  NONE OF THEIR
MEMBERS IS, AS FAR AS THE ALLEGATIONS SHOW, CURRENTLY INVOLVED IN
DEVELOPING A PARTICULAR PROJECT.  THUS, HOME BUILDERS HAS "FAILED TO
SHOW THE EXISTENCE OF ANY INJURY TO ITS MEMBERS OF SUFFICIENT IMMEDIACY
AND RIPENESS TO WARRANT JUDICIAL INTERVENTION," ANTE, AT 516 (EMPHASIS
SUPPLIED), WHILE "THE CONTROVERSY BETWEEN RESPONDENTS AND BETTER HOMES,
HOWEVER VIGOROUS IT MAY ONCE HAVE BEEN, (HAS NOT) REMAINED A LIVE,
CONCRETE DISPUTE."  ANTE, AT 517. 

AGAIN, THE COURT IGNORES THE THRUST OF THE COMPLAINTS AND ASKS
PETITIONERS TO ALLEGE THE IMPOSSIBLE.  ACCORDING TO THE ALLEGATIONS,
THE BUILDING CONCERNS' EXPERIENCE IN THE PAST WITH PENFIELD OFFICIALS
HAS SHOWN ANY PLANS FOR LOW- AND MODERATE-INCOME HOUSING TO BE FUTILE
FOR, AGAIN ACCORDING TO THE ALLEGATIONS, THE RESPONDENTS ARE ENGAGED IN
A PURPOSEFUL, CONSCIOUS SCHEME TO EXCLUDE SUCH HOUSING.  PARTICULARLY
WITH REGARD TO A LOW- OR MODERATE-INCOME PROJECT, THE COST OF
LITIGATING, WITH RESPECT TO ANY PARTICULAR PROJECT, THE LEGALITY OF A
REFUSAL TO APPROVE IT MAY WELL BE PROHIBITIVE.  AND THE MERITS OF THE
EXCLUSION OF THIS OR THAT PROJECT IS NOT AT THE HEART OF THE COMPLAINT;
THE CLAIM IS THAT RESPONDENTS WILL NOT APPROVE ANY PROJECT WHICH WILL
PROVIDE RESIDENCES FOR LOW- AND MODERATE-INCOME PEOPLE.     WHEN THIS
SORT OF PATTERN-AND-PRACTICE CLAIM IS AT THE HEART OF THE CONTROVERSY,
ALLEGATIONS OF PAST INJURY, WHICH MEMBERS OF BOTH OF THESE
ORGANIZATIONS HAVE CLEARLY MADE, AND OF A FUTURE INTENT, IF THE
BARRIERS ARE CLEARED, AGAIN TO DEVELOP SUITABLE HOUSING FOR PENFIELD,
SHOULD BE MORE THAN SUFFICIENT.  THE PAST EXPERIENCES, IF PROVED AT
TRIAL, WILL GIVE CREDIBILITY AND SUBSTANCE TO THE CLAIM OF INTEREST IN
FUTURE BUILDING ACTIVITY IN PENFIELD.  THESE PARTIES, IF THEIR
ALLEGATIONS ARE PROVED, CERTAINLY HAVE THE REQUISITE PERSONAL STAKE IN
THE OUTCOME OF THIS CONTROVERSY, AND THE COURT'S CONCLUSION OTHERWISE
IS ONLY A CONCLUSION THAT THIS CONTROVERSY MAY NOT BE LITIGATED IN A
FEDERAL COURT. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

/1/ FLAST V. COHEN, 392 U.S. 83, 99 (1968); DATA PROCESSING SERVICE
V. CAMP, 397 U.S. 150, 153, 158 (1970); SCHLESINGER V. RESERVISTS TO
STOP THE WAR, 418 U.S. 208, 225 N. 15 (1974).  SEE BARLOW V. COLLINS,
397 U.S. 159, 176 (1970) (OPINION OF BRENNAN, J.). 

/2/ BECAUSE AT LEAST THREE GROUPS OF PLAINTIFFS HAVE, IN MY VIEW,
ALLEGED STANDING SUFFICIENT TO REQUIRE THIS LAWSUIT TO PROCEED TO
DISCOVERY AND TRIAL, I DO NOT DEAL IN THIS DISSENT WITH THE STANDING OF
THE REMAINING PETITIONERS. 

/3/ SPECIFICALLY, PETITIONER ORTIZ CLAIMS, AMONG OTHER THINGS, THAT
THE PENFIELD SCHOOLS OFFER A MUCH BROADER CURRICULUM, INCLUDING
VOCATIONAL EDUCATION, THAN THE SCHOOL HIS CHILDREN ATTEND, AS WELL AS
SPECIAL TUTORING AND COUNSELING PROGRAMS NOT AVAILABLE TO HIS
CHILDREN.  PENFIELD ALSO PROVIDES A COMPREHENSIVE RECREATIONAL PROGRAM,
WHILE HIS COMMUNITY OFFERS VERY LITTLE, AND A FULL-TIME, COMPREHENSIVE
PUBLIC LIBRARY, WHILE HIS COMMUNITY HAS ONLY LIMITED LIBRARY SERVICES. 
APP.  377 - 400. 

PETITIONER BROADNAX CLAIMED THAT IF SHE LIVED IN PENFIELD, THERE
WOULD BE PLAYGROUNDS FOR HER CHILDREN, EFFECTIVE POLICE PROTECTION, AND
ADEQUATE GARBAGE DISPOSAL, ALL OF WHICH ARE LACKING IN HER PRESENT
COMMUNITY.  ID., AT 419.  AS A RESULT, HER CHILDREN ARE NOT SAFE AND
THERE ARE MICE, RATS, AND ROACHES IN HER HOUSE.  ID., AT 416 - 417,
419. 

PETITIONER REYES STATED, SIMILARLY, THAT SHE IS CURRENTLY LIVING
WITH INADEQUATE POLICE PROTECTION, ID., AT 426, AND SENDING HER
CHILDREN TO INFERIOR SCHOOLS, ID., AT 433. 

FINALLY, PETITIONER SINKLER ALSO SAID THAT IN HER CURRENT HOME,
POLICE PROTECTION IS INADEQUATE, ID., AT 443, THERE ARE NO PLAY AREAS
FOR CHILDREN, ID., AT 44., AND THE SCHOOLS ARE TOTALLY INADEQUATE. 
ID., AT 454. 

THESE ARE ONLY SUMMARIES OF THE AFFIDAVITS, WHICH ARE QUITE SPECIFIC
IN DETAILING THE INADEQUACIES OF PETITIONERS' CURRENT COMMUNITIES AND
THE INJURIES SUFFERED THEREBY AS WELL AS, IN ORTIZ'  AFFIDAVIT, THE
SERVICES PROVIDED BY PENFIELD WHICH WOULD ALLEVIATE MANY OF THESE
PROBLEMS. 

/4/ PETITIONER BROADNAX SAID THAT BECAUSE OF THE POOR CHOICE OF
HOUSING AVAILABLE AT HER INCOME, SHE WAS FORCED TO RENT AN APARTMENT
WHICH HAS "MANY LEAKS IN THE ROOF, BAD WIRING, ROACH INFESTATION, RAT
AND MICE INFESTATION, CRUMBLING HOUSE FOUNDATION, BROKEN FRONT DOOR,
BROKEN HOT WATER HEATER, ETC." ID., AT 410.  AS A RESULT, ASIDE FROM
THE ORDINARY DANGERS SUCH CONDITIONS OBVIOUSLY PRESENT, ONE SON'S
ASTHMA CONDITION HAS BEEN EXACERBATED.  ID., AT 413. 

PETITIONER SINKLER STATED THAT, AGAIN BECAUSE ONLY HOUSING IN
ROCHESTER CENTRAL CITY IS AVAILABLE TO MODERATE-INCOME, MINORITY
PEOPLE, SHE IS LIVING IN A SEVENTH-FLOOR APARTMENT WITH EXPOSED
RADIATOR PIPES, NO ELEVATOR, AND NO SCREENS, AND VIOLENCE, THEFT, AND
SEXUAL ATTACKS ARE FREQUENT.  ID., AT 441 - 446. 

ONCE AGAIN, THE ABOVE ARE SHORT SUMMARIES OF LONG, DETAILED ACCOUNTS
OF THE HARMS SUFFERED. 

/5/ THIS CASE IS QUITE DIFFENENT FROM LINDA R.S. V. RICHARD D., 410
U.S. 614 (1973).  IN LINDA R.S., THE PROBLEM WAS THAT EVEN IF
EVERYTHING ALLEGED WERE PROVED, IT WAS STILL QUITE POSSIBLE THAT
PETITIONER'S HUSBAND WOULD NOT BE PROSECUTED FOR NONSUPPORT, OR THAT,
IF PROSECUTED, HE WILL STILL NOT CONTRIBUTE TO HIS CHILDREN'S SUPPORT. 
NOTHING WHICH COULD BE PROVED AT TRIAL COULD POSSIBLY SHOW OTHERWISE. 
HERE, IF THESE PETITIONERS PROVE WHAT THEY HAVE ALLEGED, THEY WILL HAVE
SHOWN THAT RESPONDENTS' ACTIONS DID CAUSE THEIR INJURY. 

/6/ THERE IS SOME SUGGESTION MADE IN THE BRIEFS THAT, BY VIRTUE OF
THE INCLUSION IN THE RECORD OF AFFIDAVITS AND DOCUMENTS, THE MOTION TO
DISMISS WAS, UNDER FED. RULE CIV. PROC. 12 (B), CONVERTED INTO A RULE
56 MOTION FOR SUMMARY JUDGMENT.  IN TERMS, THE PORTION OF RULE 12 (B)
CONCERNING CONVERSION TO A RULE 56 MOTION APPLIES ONLY TO A MOTION TO
DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION, AND NOT TO A MOTION TO
DISMISS FOR OTHER REASONS.  AT ANY RATE, RESPONDENTS FILED NO COUNTER
AFFIDAVITS PROPER UNDER RULE 56(E), SO THAT EVEN IF RULE 56 WERE
APPLIED, RESPONDENTS HAVE NOT AT THIS STAGE DISPROVED THE ALLEGATIONS. 

/7/ THE COURT, GLANCING AT THE PROJECTS MENTIONED IN THE RECORD WHICH
MIGHT HAVE BEEN BUILT BUT FOR THE EXCLUSIONARY PRACTICES ALLEGED,
CONCLUDES THAT PETITIONERS ORTIZ AND BROADNAX EARNED TOO LITTLE TO
AFFORD SUITABLE HOUSING IN THEM, AND THAT PETITIONER REYES EARNED TOO
MUCH.  ANTE, AT 506 - 507, N. 16.  AS THE COURT IMPLICITLY
ACKNOWLEDGES, PETITIONER SINKLER AT LEAST MAY WELL HAVE BEEN ABLE TO
LIVE IN THE BETTER HOMES PROJECT.  FURTHER, THERE APPEARS IN THE RECORD
AS IT STANDS A REPORT OF THE PENFIELD HOUSING TASK FORCE ON MODERATE
INCOME HOUSING, APP. 487 - 581, PREPARED FOR THE PENFIELD TOWN BOARD
ITSELF, WHICH DEFINES "MODERATE INCOME FAMILIES AS FAMILIES HAVING
INCOMES BETWEEN $5,500 AND $11,000 PER YEAR, DEPENDING ON THE SIZE OF
THE FAMILY," ID., AT 492, AND MODERATE-INCOME HOUSING AS HOUSING
"PRICED BELOW $20,000 OR (CARRYING) A RENTAL PRICE OF LESS THAN $150 A
MONTH," ID., AT 493.  SEE ALSO, WITH RESPECT TO "LOW INCOME," ID., AT
527.  THUS, WHILE THE COURT MIGHT NOT KNOW WHAT WAS MEANT BY "LOW" AND
"MODERATE" INCOME HOUSING, ANTE, AT 494 - 495, N. 5, AND 506 - 507, N.
16, RESPONDENTS CLEARLY DID.  THE PETITIONERS HERE UNDER DISCUSSION
FELL WITHIN THE BOARD'S OWN DEFINITION OF MODERATE-INCOME FAMILIES,
EXCEPT FOR PETITIONER REYES, WHO ALLEGES THAT SHE COULD AFFORD A HOUSE
FOR $20,000 BUT NOT MORE.  APP. 428.  AND THE TASK FORCE REPORT DOES
SET OUT, ID., AT 503 - 516, CHANGES IN THE ZONING ORDINANCE AND ITS
APPLICATION WHICH COULD RESULT IN HOUSING WHICH MODERATE-INCOME PEOPLE
COULD AFFORD, EVEN TO THE EXTENT OF SETTING OUT A BUDGET PROVIDED BY A
BUILDER FOR A HOUSE COSTING $18,900, ID., AT 507.  THE CAUSATION THEORY
WHICH THE COURT FINDS IMPROBABLE, THEN, WAS ADOPTED BY A TASK FORCE OF
THE TOWN BOARD ITSELF.  OF COURSE, WE DO NOT KNOW AT THIS STAGE WHETHER
THE PARTICULAR NAMED PLAINTIFFS WOULD CERTAINLY HAVE BENEFITED FROM THE
CHANGES RECOMMENDED BY THE TASK FORCE, BUT AT LEAST THERE IS A GOOD
CHANCE THAT, AFTER DISCOVERY AND TRIAL, THEY COULD SHOW THEY WOULD. 

EMMELYN LOGAN-BALDWIN ARGUED THE CAUSE FOR PETITIONERS.  WITH HER ON
THE BRIEFS WERE SANFORD LIEBSCHUTZ AND MICHAEL NELSON. 

JAMES M. HARTMAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE DOUGLAS S. GATES, J. WILLIAM ERNSTROM, AND LUTHER C.
NADLER. 

(BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JACK
GREENBERG, JAMES M. NABRIT III, CHARLES STEPHEN RALSTON, AND NORMAN J.
CHACHKIN FOR THE N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL FUND, INC.;
BY MARTIN E. SLOANE AND ARTHUR D. WOLF FOR THE NATIONAL COMMITTEE
AGAINST DISCRIMINATION IN HOUSING; AND BY J. HAROLD FLANNERY, PAUL R.
DIMOND, AND WILLIAM E. CALDWELL FOR THE LAWYERS' COMMITTEE FOR CIVIL
RIGHTS UNDER LAW. 

DAVID H. MOSKOWITZ FILED A BRIEF FOR REGIONAL HOUSING LEGAL
SERVICES, INC., AS AMICUS CURIAE.) 
..END :












UNITED STATES V. PELTIER, 422 U.S. 531 


       UNITED STATES V. PELTIER

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 73 - 2000.  ARGUED FEBRUARY 18, 1975 -- DECIDED JUNE
25,

           1975; 500 F.2D 985, REVERSED. 


THIS COURT'S DECISION IN ALMEIDA-SANCHEZ V. UNITED STATES, 413 U.S.
266, WHICH HELD THAT A WARRANTLESS AUTOMOBILE SEARCH, CONDUCTED ABOUT
25 AIR MILES FROM THE MEXICAN BORDER BY BORDER PATROL AGENTS ACTING
WITHOUT PROBABLE CAUSE, CONTRAVENED THE FOURTH AMENDMENT, DOES NOT
APPLY TO BORDER PATROL SEARCHES LIKE THE ONE IN THIS CASE, WHICH,
THOUGH CONCEDEDLY UNCONSTITUTIONAL UNDER ALMEIDA-SANCHEZ STANDARDS, WAS
CONDUCTED PRIOR TO JUNE 21, 1973, THE DATE OF THAT DECISION.  THE
POLICIES UNDERLYING THE EXCLUSIONARY RULE DO NOT REQUIRE RETROACTIVE
APPLICATION OF ALMEIDA-SANCHEZ WHERE, AS HERE, THE AGENTS WERE ACTING
IN RELIANCE UPON A FEDERAL STATUTE SUPOORTED BY LONGSTANDING
ADMINISTRATIVE REGULATIONS AND CONTINUOUS JUDICIAL APPROVAL.  PP. 535 -
542. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, POST, P. 543.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED, AND IN PART I OF
WHICH STEWART, J., JOINED, POST, P. 544.  STEWART, J., FILED A
DISSENTING STATEMENT, POST, P. 543. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

FOUR MONTHS BEFORE THIS COURT'S DECISION IN ALMEIDA-SANCHEZ V.
UNITED STATES, 413 U.S. 266 (1973), RESPONDENT WAS STOPPED IN HIS
AUTOMOBILE BY A ROVING BORDER PATROL, AND THREE PLASTIC GARBAGE BAGS
CONTAINING 270 POUNDS OF MARIHUANA WERE FOUND IN THE TRUNK OF HIS CAR
BY BORDER PATROL AGENTS.  ON THE BASIS OF THIS EVIDENCE AN INDICTMENT
WAS RETURNED CHARGING HIM WITH A VIOLATION OF 84 STAT. 1260, 21 U.S.C.
SEC. 841 (A) (1).  WHEN RESPONDENT'S MOTION TO SUPPRESS THE EVIDENCE
WAS DENIED AFTER A HEARING, HE STIPULATED IN WRITING THAT HE "DID
KNOWINGLY AND INTENTIONALLY POSSESS, WITH INTENT TO DISTRIBUTE, THE
MARIJUANA CONCEALED IN THE 1962 CHEVROLET WHICH HE WAS DRIVING ON
FEBRUARY 28, 1973."  /1/ THE DISTRICT COURT FOUND RESPONDENT GUILTY AND
IMPOSED SENTENCE.  ON APPEAL FROM THAT JUDGMENT, THE COURT OF APPEALS
FOR THE NINTH CIRCUIT, SITTING EN BANC, REVERSED THE JUDGMENT ON THE
GROUND THAT THE "RULE ANNOUNCED BY THE SUPREME COURT IN ALMEIDA-SANCHEZ
V. UNITED STATES ... SHOULD BE APPLIED TO SIMILAR CASES PENDING ON
APPEAL ON THE DATE THE SUPREME COURT'S DECISION WAS ANNOUNCED."  500
F.2D 985, 986 (1974) (FOOTNOTE OMITTED).  /2/ WE GRANTED THE
GOVERNMENT'S PETITION FOR CERTIORARI.  419 U.S. 993 (1974). 

IN ALMEIDA-SANCHEZ, SUPRA, THIS COURT HELD THAT A WARRANTLESS
AUTOMOBILE SEARCH, CONDUCTED APPROXIMATELY 25 AIR MILES FROM THE
MEXICAN BORDER BY BORDER PATROL AGENTS, ACTING WITHOUT PROBABLE CAUSE,
WAS UNCONSTITUTIONAL UNDER THE FOURTH AMENDMENT.  /3/ 

IN THIS CASE THE GOVERNMENT CONCEDED IN THE COURT OF APPEALS THAT
THE SEARCH OF RESPONDENT'S AUTOMOBILE APPROXIMATELY 70 AIR MILES FROM
THE MEXICAN BORDER AND THE SEIZURE OF THE MARIHUANA WERE
UNCONSTITUTIONAL UNDER THE STANDARD ANNOUNCED IN ALMEIDA-SANCHEZ, BUT
IT CONTENDED THAT THAT STANDARD SHOULD NOT BE APPLIED TO SEARCHES
CONDUCTED PRIOR TO JUNE 21, 1973, THE DATE OF THE DECISION IN ALMEIDA
SANCHEZ.  IN AN INQUIRY PRELIMINARY TO BALANCING THE INTERESTS FOR AND
AGAINST RETROACTIVE APPLICATION, SEE STOVALL V. DENNO, 388 U.S. 293,
297 (1967), THE MAJORITY OF THE COURT OF APPEALS FIRST CONSIDERED
WHETHER THIS COURT HAD "ARTICULATED A NEW DOCTRINE" IN ALMEIDA-SANCHEZ,
500 F.2D, AT 987.  SEE, E. G., CHEVRON OIL CO. V. HUSON, 404 U.S. 97,
106 (1971); MILTON V. WAINWRIGHT, 407 U.S. 371, 381 - 382, N. 2 (1972)
(STEWART, J., DISSENTING).  CONCLUDING THAT ALMEIDA-SANCHEZ OVERRULED
NO PRIOR DECISION OF THIS COURT AND INSTEAD "REAFFIRMED WELL
ESTABLISHED FOURTH AMENDMENT STANDARDS" THAT DID NOT "DISTURB A LONG
ACCEPTED AND RELIED-UPON PRACTICE," 500 F.2D, AT 988, THE COURT OF
APPEALS HELD: 

"(RESPONDENT) IS ENTITLED TO THE BENEFIT OF THE RULE ANNOUNCED IN
ALMEIDA-SANCHEZ, NOT BECAUSE OF RETROACTIVITY BUT BECAUSE OF FOURTH
AMENDMENT PRINCIPLES NEVER DEVIATED FROM BY THE SUPREME COURT."  ID.,
AT 989.  THE JUDGMENT OF CONVICTION WAS REVERSED, AND THE CASE WAS
REMANDED TO THE DISTRICT COURT TO SUPPRESS THE EVIDENCE SEIZED FROM
RESPONDENT'S AUTOMOBILE. 

ALTHOUGH EXPRESSING SOME DOUBT ABOUT THE APPLICABILITY OF THE OLD
LAW-NEW LAW TEST AS A PRECONDITION TO RETROACTIVITY ANALYSIS, ID., AT
990, THE SIX DISSENTERS JOINED ISSUE WITH THE MAJORITY OVER THE PROPER
INTERPRETATION OF ALMEIDA-SANCHEZ.  THE DISSENTERS CONCLUDED THAT
ALMEIDA-SANCHEZ HAD ANNOUNCED A NEW CONSTITUTIONAL RULE BECAUSE THE
DECISION OVERRULED A CONSISTENT LINE OF COURTS OF APPEALS PRECEDENT AND
DISRUPTED A LONG ACCEPTED AND WIDELY RELIED UPON ADMINISTRATIVE
PRACTICE.  BORDER PATROL AGENTS HAD CONDUCTED ROVING SEARCHES PURSUANT
TO CONGRESSIONAL AUTHORIZATION, 66 STAT. 233, 8 U.S.C. SEC. 1357
(A)(3), AND ADMINISTRATIVE REGULATION, 8 CFR SEC. 287.1 (A)(2) (1973),
WHICH HAD BEEN CONTINUOUSLY UPHELD UNTIL THIS COURT'S DECISION IN
ALMEIDA-SANCHEZ.  SINCE ALMEIDA-SANCHEZ STATED A NEW RULE, THE
DISSENTERS CONCLUDED THAT THE APPLICABILITY OF THAT DECISION TO PRE
JUNE 21, 1973, ROVING PATROL VEHICLE SEARCHES SHOULD BE DETERMINED BY
REFERENCE TO THE STANDARDS SUMMARIZED IN STOVALL V. DENNO, SUPRA.  /4/
FOR THE REASONS EXPRESSED IN PART II OF JUDGE WALLACE'S OPINION IN
UNITED STATES V. BOWEN, 500 F.2D 960, 975 - 981 (CA9), CERT. GRANTED,
419 U.S. 824 (1974), THE DISSENTERS CONCLUDED THAT ALMEIDA-SANCHEZ
SHOULD BE ACCORDED PROSPECTIVE APPLICATION. 

DESPITE THE CONCEDED ILLEGALITY OF THE SEARCH UNDER THE ALMEIDA
SANCHEZ STANDARD, THE GOVERNMENT CONTENDS THAT THE EXCLUSIONARY RULE
SHOULD NOT BE MECHANICALLY APPLIED IN THE CASE NOW BEFORE US BECAUSE
THE POLICIES UNDERLYING THE RULE DO NOT JUSTIFY ITS RETROACTIVE
APPLICATION TO PRE-ALMEIDA-SANCHEZ SEARCHES.  WE AGREE. 

        I 

SINCE 1965 THIS COURT HAS REPEATEDLY STRUGGLED WITH THE QUESTION OF
WHETHER RULINGS IN CRIMINAL CASES SHOULD BE GIVEN RETROACTIVE EFFECT. 
IN THOSE CASES "(WHERE THE MAJOR PURPOSE OF NEW CONSTITUTIONAL DOCTRINE
IS TO OVERCOME AN ASPECT OF THE CRIMINAL TRIAL THAT SUBSTANTIALLY
IMPAIRS ITS TRUTH-FINDING FUNCTION AND SO RAISES SERIOUS QUESTIONS
ABOUT THE ACCURACY OF GUILTY VERDICTS IN PAST TRIALS,"  WILLIAMS V.
UNITED STATES, 401 U.S. 646, 653 (1971), THE DOCTRINE HAS QUITE OFTEN
BEEN APPLIED RETROACTIVELY.  IT IS INDISPUTABLE, HOWEVER, THAT IN EVERY
CASE IN WHICH THE COURT HAS ADDRESSED THE RETROACTIVITY PROBLEM IN THE
CONTEXT OF THE EXCLUSIONARY RULE, WHEREBY CONCEDEDLY RELEVANT EVIDENCE
IS EXCLUDED IN ORDER TO ENFORCE A CONSTITUTIONAL GUARANTEE THAT DOES
NOT RELATE TO THE INTEGRITY OF THE FACTFINDING PROCESS, THE COURT HAS
CONCLUDED THAT ANY SUCH NEW CONSTITUTIONAL PRINCIPLE WOULD BE ACCORDED
ONLY PROSPECTIVE APPLICATION.  /5/  LINKLETTER V. WALKER, 381 U.S. 618
(1965); JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966); STOVALL V. DENNO,
SUPRA; FULLER V. ALASKA, 393 U.S. 80 (1968); DESIST V. UNITED STATES,
394 U.S. 244 (1969); JENKINS V. DELAWARE, 395 U.S. 213 (1969); WILLIAMS
V. UNITED STATES, SUPRA; HILL V. CALIFORNIA, 401 U.S. 797 (1971). 

WE THINK THAT THESE CASES TELL US A GREAT DEAL ABOUT THE NATURE OF
THE EXCLUSIONARY RULE, AS WELL AS SOMETHING ABOUT THE NATURE OF
RETROACTIVITY ANALYSIS.  DECISIONS OF THIS COURT APPLYING THE
EXCLUSIONARY RULE TO UNCONSTITUTIONALLY SEIZED EVIDENCE HAVE REFERRED
TO "THE IMPERATIVE OF JUDICIAL INTEGRITY," ELKINS V. UNITED STATES, 364
U.S. 206, 222 (1960), ALTHOUGH THE COURT HAS RELIED PRINCIPALLY UPON
THE DETERRENT PURPOSE SERVED BY THE EXCLUSIONARY RULE.  SEE MAPP V.
OHIO, 367 U.S. 643 (1961); LEE V. FLORIDA, 392 U.S. 378 (1968); SEE
ALSO UNITED STATES V. CALANDRA, 414 U.S. 338 (1974); MICHIGAN V.
TUCKER, 417 U.S. 433 (1974).  AND SEE ALSO OAKS, STUDYING THE
EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37 U. CHI.  L. REV. 665, 668 -
672 (1970). 

WHEN IT CAME TIME TO CONSIDER WHETHER THOSE DECISIONS WOULD BE
APPLIED RETROACTIVELY, HOWEVER, THE COURT RECOGNIZED THAT THE
INTRODUCTION OF EVIDENCE WHICH HAD BEEN SEIZED BY LAW ENFORCEMENT
OFFICIALS IN GOOD-FAITH COMPLIANCE WITH THEN-PREVAILING CONSTITUTIONAL
NORMS DID NOT MAKE THE COURTS "ACCOMPLICES IN THE WILLFUL DISOBEDIENCE
OF A CONSTITUTION THEY ARE SWORN TO UPHOLD."  ELKINS V. UNITED STATES,
SUPRA, AT 223.  THUS, WHILE THE "IMPERATIVE OF JUDICIAL INTEGRITY"
PLAYED A ROLE IN THIS COURT'S DECISION TO OVERRULE WOLF V. COLORADO,
338 U.S. 25 (1949), SEE MAPP V. OHIO, SUPRA, AT 659, THE MAPP DECISION
WAS NOT APPLIED RETROACTIVELY:  " RATHER THAN BEING ABHORRENT AT THE
TIME OF SEIZURE IN THIS CASE, THE USE IN STATE TRIALS OF ILLEGALLY
SEIZED EVIDENCE HAD BEEN SPECIFICALLY AUTHORIZED BY THIS COURT IN
WOLF."  LINKLETTER V. WALKER, SUPRA, AT 638 (FOOTNOTE OMITTED). 
SIMILARLY, IN LEE V. FLORIDA, SUPRA, THIS COURT OVERRULED SCHWARTZ V.
TEXAS, 344 U.S. 199 (1952), AND HELD THAT EVIDENCE SEIZED IN VIOLATION
OF SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT OF 1934, 48 STAT. 1103,
47 U.S.C. SEC. 605, BY STATE OFFICERS COULD NOT BE INTRODUCED INTO
EVIDENCE AT STATE CRIMINAL TRIALS: 

"(THE DECISION WE REACH TODAY IS NOT BASED UPON LANGUAGE AND
DOCTRINAL SYMMETRY ALONE.  IT IS BUTTRESSED AS WELL BY THE 'IMPERATIVE
OF JUDICIAL INTEGRITY.'  ELKINS V. UNITED STATES, 364 U.S. 206, 222. 
UNDER OUR CONSTITUTION NO COURT, STATE OR FEDERAL, MAY SERVE AS AN
ACCOMPLICE IN THE WILLFUL TRANSGRESSION OF 'THE LAWS OF THE UNITED
STATES,' LAWS BY WHICH 'THE JUDGES IN EVERY STATE (ARE) BOUND....'" 
392 U.S., AT 385 - 386 (FOOTNOTES OMITTED).  BUT WHEN IT CAME TIME TO
CONSIDER THE RETROACTIVITY OF LEE, THE COURT HELD THAT IT WOULD NOT BE
APPLIED RETROACTIVELY, SAYING: 

     " RETROACTIVE APPLICATION OF LEE WOULD OVERTURN EVERY STATE

CONVICTION OBTAINED IN GOOD-FAITH RELIANCE ON SCHWARTZ.  SINCE

  THIS RESULT IS NOT REQUIRED BY THE PRINCIPLE UPON WHICH LEE WAS

  DECIDED, OR NECESSARY TO ACCOMPLISH ITS PURPOSE, WE HOLD THAT THE

  EXCLUSIONARY RULE IS TO BE APPLIED ONLY TO TRIALS IN WHICH THE

  EVIDENCE IS SOUGHT TO BE INTRODUCED AFTER THE DATE OF OUR

  DECISION IN LEE."  FULLER V. ALASKA, SUPRA, AT 81. 

THE TEACHING OF THESE RETROACTIVITY CASES IS THAT IF THE LAW
ENFORCEMENT OFFICERS REASONABLY BELIEVED IN GOOD FAITH THAT EVIDENCE
THEY HAD SEIZED WAS ADMISSIBLE AT TRIAL, THE "IMPERATIVE OF JUDICIAL
INTEGRITY" IS NOT OFFENDED BY THE INTRODUCTION INTO EVIDENCE OF THAT
MATERIAL EVEN IF DECISIONS SUBSEQUENT TO THE SEARCH OR SEIZURE HAVE
BROADENED THE EXCLUSIONARY RULE TO ENCOMPASS EVIDENCE SEIZED IN THAT
MANNER.  IT WOULD SEEM TO FOLLOW A FORTIORI FROM THE LINKLETTER AND
FULLER HOLDINGS THAT THE "IMPERATIVE OF JUDICIAL INTEGRITY" IS ALSO NOT
OFFENDED IF LAW ENFORCEMENT OFFICIALS REASONABLY BELIEVED IN GOOD FAITH
THAT THEIR CONDUCT WAS IN ACCORDANCE WITH THE LAW EVEN IF DECISIONS
SUBSEQUENT TO THE SEARCH OR SEIZURE HAVE HELD THAT CONDUCT OF THE TYPE
ENGAGED IN BY THE LAW ENFORCEMENT OFFICIALS IS NOT PERMITTED BY THE
CONSTITUTION.  ALTHOUGH THE POLICE IN LINKLETTER AND FULLER COULD NOT
HAVE BEEN EXPECTED TO FORESEE THE APPLICATION OF THE EXCLUSIONARY RULE
TO STATE CRIMINAL TRIALS, THEY COULD REASONABLY HAVE ENTERTAINED NO
SIMILAR DOUBTS AS TO THE ILLEGALITY OF THEIR CONDUCT.  SEE WOLF V.
COLORADO, 338 U.S., AT 27; SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT
OF 1934, 48 STAT. 1103; CF. NARDONE V. UNITED STATES, 302 U.S. 379
(1937). 

THIS APPROACH TO THE "IMPERATIVE OF JUDICIAL INTEGRITY" DOES NOT
DIFFER MARKEDLY FROM THE ANALYSIS THE COURT HAS UTILIZED IN DETERMINING
WHETHER THE DETERRENCE RATIONALE UNDERGIRDING THE EXCLUSIONARY RULE
WOULD BE FURTHERED BY RETROACTIVE APPLICATION OF NEW CONSTITUTIONAL
DOCTRINES.  SEE LINKLETTER V. WALKER, 381 U.S., AT 636 - 637; FULLER V.
ALASKA, 393 U.S., AT 81; DESIST V. UNITED STATES, 394 U.S., AT 249 -
251.  IN DESIST, THE COURT EXPLICITLY RECOGNIZED THE INTERRELATION
BETWEEN RETROACTIVITY RULINGS AND THE EXCLUSIONARY RULE:  "(WE SIMPLY
DECLINE TO EXTEND THE COURT-MADE EXCLUSIONARY RULE TO CASES IN WHICH
ITS DETERRENT PURPOSE WOULD NOT BE SERVED."  ID., AT 254 N. 24. 

THIS FOCUS IN THE RETROACTIVITY CASES ON THE PURPOSES SERVED BY THE
EXCLUSIONARY RULE IS ALSO QUITE IN HARMONY WITH THE APPROACH TAKEN
GENERALLY TO THE EXCLUSIONARY RULE.  IN UNITED STATES V. CALANDRA, 414
U.S., AT 348, WE SAID THAT THE EXCLUSIONARY RULE "IS A JUDICIALLY
CREATED REMEDY DESIGNED TO SAFEGUARD FOURTH AMENDMENT RIGHTS GENERALLY
THROUGH ITS DETERRENT EFFECT, RATHER THAN A PERSONAL CONSTITUTIONAL
RIGHT OF THE PARTY AGGRIEVED."  IT FOLLOWS THAT "THE APPLICATION OF THE
RULE HAS BEEN RESTRICTED TO THOSE AREAS WHERE ITS REMEDIAL OBJECTIVES
ARE THOUGHT MOST EFFICACIOUSLY SERVED." 

IBID.  WE LIKEWISE OBSERVED IN MICHIGAN V. TUCKER, 417 U.S., AT
447: 

     " THE DETERRENT PURPOSE OF THE EXCLUSIONARY RULE NECESSARILY

ASSUMES THAT THE POLICE HAVE ENGAGED IN WILLFUL, OR AT THE VERY

  LEAST NEGLIGENT, CONDUCT WHICH HAS DEPRIVED THE DEFENDANT OF SOME

  RIGHT.  BY REFUSING TO ADMIT EVIDENCE GAINED AS A RESULT OF SUCH

  CONDUCT, THE COURTS HOPE TO INSTILL IN THOSE PARTICULAR

  INVESTIGATING OFFICERS, OR IN THEIR FUTURE COUNTERPARTS, A

  GREATER DEGREE OF CARE TOWARD THE RIGHTS OF AN ACCUSED.  WHERE

  THE OFFICAL ACTION WAS PURSUED IN COMPLETE GOOD FAITH, HOWEVER,

  THE DETERRENCE RATIONALE LOSES MUCH OF ITS FORCE." 

THE "RELIABILITY AND RELEVANCY," LINKLETTER, SUPRA, AT 639, OF THE
EVIDENCE FOUND IN THE TRUNK OF RESPONDENT'S CAR IS UNQUESTIONED.  IT
WAS SUFFICIENTLY DAMNING ON THE ISSUE OF RESPONDENT'S GUILT OR
INNOCENCE THAT HE STIPULATED IN WRITING THAT IN EFFECT HE HAD COMMITTED
THE OFFENSE CHARGED.  WHETHER OR NOT THE EXCLUSIONARY RULE SHOULD BE
APPLIED TO THE ROVING BORDER PATROL SEARCH CONDUCTED IN THIS CASE,
THEN, DEPENDS ON WHETHER CONSIDERATIONS OF EITHER JUDICIAL INTEGRITY OR
DETERRENCE OF FOURTH AMENDMENT VIOLATIONS ARE SUFFICIENTLY WEIGHTY TO
REQUIRE THAT THE EVIDENCE OBTAINED BY THE BORDER PATROL IN THIS CASE BE
EXCLUDED. 

        II 

THE BORDER PATROL AGENTS WHO STOPPED AND SEARCHED RESPONDENT'S
AUTOMOBILE WERE ACTING PURSUANT TO SEC. 287 (A)(3) OF THE IMMIGRATION
AND NATIONALITY ACT OF 1952, 66 STAT. 233, 8 U.S.C. SEC. 1357 (A) (3). 
/6/ THAT PROVISION, WHICH CARRIED FORWARD STATUTORY AUTHORIZATION
DATING BACK TO 1946, 60 STAT. 865, 8 U.S.C. SEC. 110 (1946 ED.), /7/
AUTHORIZES APPROPRIATELY DESIGNATED IMMIGRATION AND NATURALIZATION
OFFICERS TO SEARCH VEHICLES "WITHIN A REASONABLE DISTANCE FROM ANY
EXTERNAL BOUNDARY OF THE UNITED STATES" WITHOUT A WARRANT.     PURSUANT
TO THIS STATUTORY AUTHORIZATION, REGULATIONS WERE PROMULGATED FIXING
THE "REASONABLE DISTANCE," AS SPECIFIED IN SEC. 287 (A) (3), AT "100
AIR MILES FROM ANY EXTERNAL BOUNDARY OF THE UNITED STATES," 22 FED.
REG. 9808 (1957), AS AMENDED, 29 FED. REG. 13244 (1964), 8 CFR SEC.
287.1 (A) (2) (1973). 

BETWEEN 1952 AND ALMEIDA-SANCHEZ, ROVING BORDER PATROL SEARCHES
UNDER SEC. 287 (A) (3) WERE UPHELD REPEATEDLY AGAINST CONSTITUTIONAL
ATTACK.  /8/ DICTA IN MANY OTHER FIFTH, /9/ NINTH, /10/ AND TENTH
CIRCUIT /11/ DECISIONS STRONGLY SUGGESTED THAT THE STATUTE AND THE
BORDER PATROL POLICY WERE ACCEPTABLE MEANS FOR POLICING THE IMMIGRATION
LAWS. 

AS MR. JUSTICE POWELL OBSERVED IN HIS CONCURRING OPINION IN ALMEIDA
SANCHEZ: 

     " ROVING AUTOMOBILE SEARCHES IN BORDER REGIONS FOR ALIENS . .
.

HAVE BEEN CONSISTENTLY APPROVED BY THE JUDICIARY.  WHILE THE

  QUESTION IS ONE OF FIRST IMPRESSION IN THIS COURT, SUCH SEARCHES

  UNIFORMLY HAVE BEEN SUSTAINED BY THE COURTS OF APPEALS WHOSE

  JURISDICTIONS INCLUDE THOSE AREAS OF THE BORDER BETWEEN MEXICO

  AND THE UNITED STATES WHERE THE PROBLEM HAS BEEN MOST

  SEVERE."  413 U.S., AT 278. 

IT WAS IN RELIANCE UPON A VALIDLY ENACTED STATUTE, SUPPORTED BY
LONGSTANDING ADMINISTRATIVE REGULATIONS AND CONTINUOUS JUDICIAL
APPROVAL, THAT BORDER PATROL AGENTS STOPPED AND SEARCHED RESPONDENT'S
AUTOMOBILE.  SINCE THE PARTIES ACKNOWLEDGE THAT ALMEIDA-SANCHEZ WAS THE
FIRST ROVING BORDER PATROL CASE TO BE DECIDED BY THIS COURT, UNLESS WE
ARE TO HOLD THAT PARTIES MAY NOT REASONABLY RELY UPON ANY LEGAL
PRONOUNCEMENT EMANATING FROM SOURCES OTHER THAN THIS COURT, WE CANNOT
REGARD AS BLAMEWORTHY THOSE PARTIES WHO CONFORM THEIR CONDUCT TO THE
PREVAILING STATUTORY OR CONSTITUTIONAL NORM.  /12/ CF. CHEVRON OIL CO.
V. HUSON, 404 U.S. 97 (1971); LEMON V. KURTZMAN, 411 U.S. 192 (1973). 
IF THE PURPOSE OF THE EXCLUSIONARY RULE IS TO DETER UNLAWFUL POLICE
CONDUCT THEN EVIDENCE OBTAINED FROM A SEARCH SHOULD BE SUPPRESSED ONLY
IF IT CAN BE SAID THAT THE LAW ENFORCEMENT OFFICER HAD KNOWLEDGE, OR
MAY PROPERLY BE CHARGED WITH KNOWLEDGE, THAT THE SEARCH WAS
UNCONSTITUTIONAL UNDER THE FOURTH AMENDMENT.  ADMITTEDLY THIS UNIFORM
TREATMENT OF ROVING BORDER PATROL SEARCHES BY THE FEDERAL JUDICIARY WAS
OVERTURNED BY THIS COURT'S DECISION IN ALMEIDA-SANCHEZ.  BUT IN LIGHT
OF THIS HISTORY AND OF WHAT WE PERCEIVE TO BE THE PURPOSE OF THE
EXCLUSIONARY RULE, WE CONCLUDE THAT NOTHING IN THE FOURTH AMENDMENT, OR
IN THE EXCLUSIONARY RULE FASHIONED TO IMPLEMENT IT, REQUIRES THAT THE
EVIDENCE HERE BE SUPPRESSED, EVEN IF WE ASSUME THAT RESPONDENT'S FOURTH
AMENDMENT RIGHTS WERE VIOLATED BY THE SEARCH OF HIS CAR.  /13/ 

THE JUDGMENT OF THE COURT OF APPEALS IS THEREFORE

                 REVERSED. 

/1/ APP. 28.  THE STIPULATION PROVIDED THAT IT "WOULD NOT (HAVE
BEEN) ENTERED INTO HAD THE (RESPONDENT'S) MOTION TO SUPPRESS IN THE
CASE BEEN GRANTED."  IBID. 

/2/ THE FIFTH CIRCUIT HAD REACHED A CONTRARY CONCLUSION IN UNITED
STATES V. MILLER, 492 F.2D 37 (1974). 

/3/ THE COURT ACKNOWLEDGED THE "POWER OF THE FEDERAL GOVERNMENT TO
EXCLUDE ALIENS FROM THE COUNTRY" AND THE CONSTITUTIONALITY OF "ROUTINE
INSPECTIONS AND SEARCHES OF INDIVIDUALS OR CONVEYANCES SEEKING TO CROSS
OUR BORDERS."  413 U.S., AT 272.  WHILE SEARCHES OF THIS SORT COULD BE
CONDUCTED "NOT ONLY AT THE BORDER ITSELF, BUT AT ITS FUNCTIONAL
EQUIVALENTS AS WELL," IBID., THE COURT CONCLUDED THAT THE SEARCH AT
ISSUE IN THE CASE "WAS OF A WHOLLY DIFFERENT SORT."  ID., AT 273. 

/4/ 388 U.S., AT 297:  " THE CRITERIA GUIDING RESOLUTION OF THE
QUESTION (OF RETROACTIVITY) IMPLICATE (A) THE PURPOSE TO BE SERVED BY
THE NEW STANDARDS, (B) THE EXTENT OF THE RELIANCE BY LAW ENFORCEMENT
AUTHORITIES ON THE OLD STANDARDS, AND (C) THE EFFECT ON THE
ADMINISTRATION OF JUSTICE OF A RETROACTIVE APPLICATION OF THE NEW
STANDARDS." 

/5/ BY THE TIME LINKLETTER V. WALKER, 381 U.S. 618 (1965), WAS
DECIDED, MAPP V. OHIO, 367 U.S. 643 (1961), HAD ALREADY BEEN APPLIED TO
THREE CASES PENDING ON DIRECT REVIEW AT THE TIME MAPP WAS DECIDED.  KER
V. CALIFORNIA, 374 U.S. 23 (1963); FAHY V. CONNECTICUT, 375 U.S. 85
(1963); STONER V. CALIFORNIA, 376 U.S. 483 (1964).  THOSE CASES WERE
DECIDED WITHOUT DISCUSSION OF RETROACTIVITY PRINCIPLES, AND THEY HAVE
NOT BEEN INTERPRETED AS ESTABLISHING ANY RETROACTIVITY LIMITATION OF
GENERAL APPLICABILITY.  SEE LINKLETTER, SUPRA, AT 622; JOHNSON V. NEW
JERSEY, 384 U.S. 719, 732 (1966); DESIST V. UNITED STATES, 394 U.S.
244, 252 - 253 (1969). 

/6/ TITLE 8 U.S.C. SEC. 1357 (A)(3): 

" ANY OFFICER OR EMPLOYEE OF THE SERVICE AUTHORIZED UNDER
REGULATIONS PRESCRIBED BY THE ATTORNEY GENERAL SHALL HAVE POWER WITHOUT
WARRANT--,

        * * * * * 

"WITHIN A REASONABLE DISTANCE FROM ANY EXTERNAL BOUNDARY OF THE
UNITED STATES, TO BOARD AND SEARCH FOR ALIENS ANY VESSEL WITHIN THE
TERRITORIAL WATERS OF THE UNITED STATES AND ANY RAILWAY CAR, AIRCRAFT
CONVEYANCE, OR VEHICLE, AND WITHIN A DISTANCE OF TWENTY-FIVE MILES FROM
ANY SUCH EXTERNAL BOUNDARY TO HAVE ACCESS TO PRIVATE LANDS, BUT NOT
DWELLINGS, FOR THE PURPOSE OF PATROLLING THE BORDER TO PREVENT THE
ILLEGAL ENTRY OF ALIENS INTO THE UNITED STATES." 

/7/ ANY EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE
AUTHORIZED SO TO DO UNDER REGULATIONS PRESCRIBED BY THE COMMISSIONER OF
IMMIGRATION AND NATURALIZATION WITH THE APPROVAL OF THE ATTORNEY
GENERAL, SHALL HAVE POWER WITHOUT WARRANT ... TO BOARD AND SEARCH FOR
ALIENS ANY VESSEL WITHIN THE TERRITORIAL WATERS OF THE UNITED STATES,
RAILWAY CAR, AIRCRAFT, CONVEYANCE, OR VEHICLE, WITHIN A REASONABLE
DISTANCE FROM ANY EXTERNAL BOUNDARY OF THE UNITED STATES." 

/8/ UNITED STATES V. THOMPSON, 475 F.2D 1359 (CA5 1973); KELLY V.
UNITED STATES, 197 F.2D 162 (CA5 1952); ROA-RODRIQUEZ V. UNITED STATES,
410 F.2D 1206 (CA10 1969); UNITED STATES V. MIRANDA, 426 F.2D 283 (CA9
1970); UNITED STATES V. ALMEIDA-SANCHEZ, 452 F.2D 459 (CA9 1971),
REV'D,413 U.S. 266 (1973).  IN SUPPORT OF THESE HOLDINGS, THE COURTS OF
APPEALS HAVE RELIED UPON CASES SUSTAINING SEARCHES AND SEIZURES AT
FIXED CHECKPOINTS MAINTAINED WITHIN 100 AIR MILES OF THE BORDER.  SEE
NN. 9, 10, AND 11, INFRA.  WHETHER FIXED-CHECKPOINT SEARCHES AND
SEIZURES ARE CONSTITUTIONAL NOTWITHSTANDING OUR DECISION IN ALMEIDA
SANCHEZ IS BEFORE US IN UNITED STATES V. ORTIZ, NO. 73 - 2050, CERT,
GRANTED, 419 U.S. 824 (1974); UNITED STATES V. BOWEN, 500 F.2D 960
(CA9), CERT. GRANTED, 419 U.S. 824 (1974). 

/9/ HAERR V. UNITED STATES, 240 F.2D 533 (1957); RAMIREZ V. UNITED
STATES, 263 F.2D 385 (1959); UNITED STATES V. DE LEON, 462 F.2D 170
(1972), CERT. DENIED, 414 U.S. 853 (1973). 

/10/ FERNANDEZ V. UNITED STATES, 321 F.2D 283 (1963); BARBA - REYES
V. UNITED STATES, 387 F.2D 91 (1967); UNITED STATES V. AVEY, 428 F.2D
1159, CERT. DENIED, 400 U.S. 903 (1970); FUMAGALLI V. UNITED STATES,
429 F.2D 1011 (1970); MIENKE V. UNITED STATES, 452 F.2D 1076 (1971);
UNITED STATES V. FOERSTER, 455 F.2D 981 (1972), VACATED AND REMANDED,
413 U.S. 915 (1973). 

/11/ UNITED STATES V. MC CORMICK, 468 F.2D 68 (1972), CERT. DENIED,
410 U.S. 927 (1973); UNITED STATES V. ANDERSON, 468 F.2D 1280 (1972). 

/12/ MR. JUSTICE BRENNAN'S DISSENT ALSO SUGGESTS THAT WE WERE WRONG
TO REVERSE THE JUDGMENT AFFIRMING ALMEIDA-SANCHEZ' CONVICTION IF WE
UPHOLD THE JUDGMENT OF CONVICTION AGAINST PELTIER.  BUT WHERE IT HAS
BEEN DETERMINED, AS IN A CASE SUCH AS LINKLETTER, THAT AN EARLIER
HOLDING SUCH AS MAPP IS NOT TO BE APPLIED RETROACTIVELY, IT HAS NOT
BEEN QUESTIONED THAT MAPP WAS ENTITLED TO THE BENEFIT OF THE RULE
ENUNCIATED IN HER CASE.  SEE STOVALL V. DENNO, 388 U.S., AT 300 - 301. 
NOR DID THE GOVERNMENT IN ALMEIDA-SANCHEZ URGE UPON US ANY
CONSIDERATIONS OF EXCLUSIONARY RULE POLICY INDEPENDENT OF THE MERTIS OF
THE FOURTH AMENDMENT QUESTION WHICH WE DECIDED ADVERSELY TO THE
GOVERNMENT. 

/13/ IN ITS HASTE TO EXTRAPOLATE TODAY'S DECISION, THAT DISSENT
ARGUES THAT THIS DECISION WILL BOTH "STOP DEAD IN ITS TRACKS JUDICIAL
DEVELOPMENT OF FOURTH AMENDMENT RIGHTS" SINCE "THE FIRST DUTY OF A
COURT WILL BE TO DENY THE ACCUSED'S MOTION TO SUPPRESS IF HE CANNOT
CITE A CASE INVALIDATING A SEARCH OR SEIZURE ON IDENTICAL FACTS" AND
ADD "A NEW LAYER OF FACTFINDING IN DECIDING MOTIONS TO SUPPRESS IN THE
ALREADY HEAVILY BURDENED FEDERAL COURTS."  POST, AT 554, 560.  WHETHER
TODAY'S DECISION WILL REDUCE THE RESPONSIBILITIES OF DISTRICT COURTS,
AS THE DISSENT FIRST SUGGESTS, OR WHETHER THAT BURDEN WILL BE
INCREASED, AS THE DISSENT ALSO SUGGESTS, IT SURELY WILL NOT FULFILL
BOTH OF THESE CONTRADICTORY PROPHECIES.  A FACT NOT OPEN TO DOUBT IS
THAT THE DISTRICT COURTS ARE PRESENTLY REQUIRED, IN HEARING MOTIONS TO
SUPPRESS EVIDENCE, TO SPEND SUBSTANTIAL TIME ADDRESSING ISSUES THAT DO
NOT GO TO A CRIMINAL DEFENDANT'S GUILT OR INNOCENCE.  IN THIS CASE, FOR
EXAMPLE, THE TRANSCRIPT OF THE SUPPRESSION HEARING TAKES ALMOST THREE
TIMES AS MANY PAGES IN THE APPENDIX AS IS TAKEN BY THE TRANSCRIPT OF
RESPONDENT'S TRIAL.  APP. 5 - 36. 

MR. JUSTICE STEWART DISSENTS FROM THE OPINION AND JUDGMENT OF THE
COURT FOR THE REASONS SET OUT IN PART I OF THE DISSENTING OPINION OF
MR. JUSTICE BRENNAN, POST, AT 544 - 549. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH MY BROTHER BRENNAN THAT ALMEIDA-SANCHEZ V. UNITED
STATES, 413 U.S. 266 (1973), REAFFIRMED TRADITIONAL FOURTH AMENDMENT
PRINCIPLES AND THAT THE PURPOSES OF THE EXCLUSIONARY RULE COMPEL
EXCLUSION OF THE UNCONSTITUTIONALLY SEIZED EVIDENCE IN THIS CASE.  I
ADHERE TO MY VIEW THAT A CONSTITUTIONAL RULE MADE RETROACTIVE IN ONE
CASE MUST BE APPLIED RETROACTIVELY IN ALL.  SEE MY DISSENT IN DANIEL V.
LOUISIANA, 420 U.S. 31, 33 (1975), AND CASES CITED.  IT IS LARGELY A
MATTER OF CHANCE THAT WE HELD THE BORDER PATROL TO THE COMMAND OF THE
FOURTH AMENDMENT IN ALMEIDA-SANCHEZ RATHER THAN IN THE CASE OF THIS
DEFENDANT.  EQUAL JUSTICE DOES NOT PERMIT A DEFENDANT'S FATE TO DEPEND
UPON SUCH A FORTUITY.  THE JUDGMENT BELOW SHOULD BE AFFIRMED. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

      I 

UNTIL TODAY THE QUESTION OF THE PROSPECTIVE APPLICATION OF A
DECISION OF THIS COURT WAS NOT DEEMED TO BE PRESENTED UNLESS THE
DECISION "CONSTITUTED) A SHARP BREAK IN THE LINE OF EARLIER AUTHORITY
OR AN AVULSIVE CHANGE WHICH CAUSED THE CURRENT OF THE LAW THEREAFTER TO
FLOW BETWEEN NEW BANKS."  HANOVER SHOE, INC. V. UNITED SHOE MACHINERY
CORP., 392 U.S. 481, 499 (1968).  /1/ 

FOR ALTHOUGH THE POLICE IN LINKLETTER AND FULLER COULD NOT MEASURED
BY THAT TEST, OUR DECISION IN ALMEIDA-SANCHEZ V. UNITED STATES, 413
U.S. 266 (1973), PRESENTS NO QUESTION OF PROSPECTIVITY, AND THE COURT
ERRS IN EVEN ADDRESSING THE QUESTION.  FOR BOTH THE COURT'S OPINION AND
THE CONCURRING OPINION OF MR. JUSTICE POWELL IN ALMEIDA-SANCHEZ PLAINLY
APPLIED FAMILIAR PRINCIPLES OF CONSTITUTIONAL ADJUDICATION ANNOUNCED 50
YEARS AGO IN CARROL V. UNITED STATES, 267 U.S. 132, 153 - 154 (1925),
AND MERELY CONSTRUED 66 STAT. 233, 8 U.S.C. SEC. 1357 (A)(3), SO AS TO
RENDER IT CONSTITUTIONALLY CONSISTENT WITH THAT DECISION.  413 U.S., AT
272; ID., AT 275 AND N. 1 (POWELL, J., CONCURRING). 

THE COURT STATES, HOWEVER, THAT THE BORDER PATROL AGENTS SEARCHED
PELTIER "IN RELIANCE UPON A VALIDLY ENACTED STATUTE, SUPPORTED BY
LONGSTANDING ADMINISTRATIVE REGULATIONS AND CONTINUOUS JUDICIAL
APPROVAL ...."  ANTE, AT 541.  WITH ALL RESPECT, ANY SUCH RELIANCE
WOULD BE MISPLACED.  FIRST, THE COURT REPEATS THE ERROR OF MY BROTHER
WHITE IN HIS DISSENT IN ALMEIDA-SANCHEZ IN FINDING EXPRESS
CONGRESSIONAL AND ADMINISTRATIVE APPROVAL FOR RANDOM ROVING PATROL
SEARCHES.  413 U.S., AT 291, 292 - 293, 296.  THE STATUTE, 8 U.S.C.
SEC. 1357 (A), ONLY AUTHORIZES SEARCHES OF VEHICLES "WITHOUT WARRANT
...., WITHIN A REASONABLE DISTANCE FROM ANY EXTERNAL BOUNDARY"; NOTHING
IN THE STATUTE EXPRESSLY DISPENSES WITH THE NECESSITY FOR SHOWING
PROBABLE CAUSE.  THE REGULATION, 8 CFR SEC. 287.1 (A) (2)(1973), MERELY
DEFINED "A REASONABLE DISTANCE" AS "WITHIN 100 AIR MILES"; IT, TOO,
DOES NOT PURPORT TO EXEMPT THE BORDER PATROL FROM OBSERVING THE
PROBABLE-CAUSE REQUIREMENT.  /2/ 

SECOND, THE COURT STATES THAT "(BETWEEN 1952 AND ALMEIDA-SANCHEZ,
ROVING BORDER PATROL SEARCHES UNDER SEC. 287 (A)(3) WERE UPHELD
REPEATEDLY AGAINST CONSTITUTIONAL ATTACK."  ANTE, AT 540.  BUT THE
FIRST DECISION OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT SQUARELY
IN POINT, UNITED STATES V. MIRANDA, 426 F.2D 283, WAS DECIDED IN 1970,
AND THE SECOND, UNITED STATES V. ALMEIDA-SANCHEZ, 452 F.2D 459, WAS
DECIDED OVER STRONG DISSENT IN 1971 AND WAS PENDING ON CERTIORARI IN
THIS COURT WHEN PELTIER WAS SEARCHED.  406 U.S. 944 (1972).  THE FIRST
DECISION OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT APPROVING ALIEN
SEARCHES BY ROVING PATROLS WITHOUT EITHER PROBABLE CAUSE OR ANY
SUSPICIOUS CONDUCT WAS IN 1969.  ROA-RODRIQUEZ V. UNITED STATES, 410
F.2D 1206.  AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, UNLIKE THE
NINTH AND TENTH CIRCUITS, ALWAYS REQUIRED AT LEAST A "REASONABLE
SUSPICION" THAT A CAR MIGHT CONTAIN ALIENS AS THE BASIS OF A VALID
SEARCH UNDER 8 U.S.C. SEC. 1357 (A) (3).  UNITED STATES V. WRIGHT, 476
F.2D 1027, 1030 AND N. 2 (CA5 1973), AND CASES CITED. 

IN ADDITION, THE RULE OF MIRANDA, SUPRA, WAS A PATENT ANOMALY IN THE
COURTS OF APPEALS WHICH SANCTIONED ROVING PATROL SEARCHES WITHOUT A
SHOWING EVEN OF SUSPICIOUS CIRCUMSTANCES.  THE COURT OF APPEALS FOR THE
NINTH CIRCUIT, FOR EXAMPLE, HELD CONSISTENTLY THAT PROBABLE CAUSE MUST
BE SHOWN TO VALIDATE A SEARCH FOR CONTRABAND EXCEPT IN A BORDER SEARCH
OR ITS FUNCTIONAL EQUIVALENT, SEE, E. G., CERVANTES V. UNITED STATES,
263 F.2D 800, 803 (1959); FUMAGALLI V. UNITED STATES, 429 F.2D 1011
(1970), /3/ AND THIS DESPITE A STATUTORY AUTHORIZATION TO SEARCH FOR
CONTRABAND AT LEAST AS BROAD AS SEC. 1357 (A) (3).     SEE 14 STAT.
178, 19 U.S.C. SEC. 482.  /4/ MOREOVER, THE COURTS OF APPEALS REQUIRE
SOME MEASURE OF CAUSE TO SUSPECT VIOLATION OF LAW IN INTERROGATIONS AND
ARRESTS AUTHORIZED BY OTHER SUBSECTIONS OF 8 U.S.C. SEC. 1357 (A).  SEE
AU YI LAU V. INS, 144 U.S. APP. D. C. 147, 445 F.2D 217 (1971); YAM
SANG KWAI V. INS, 133 U.S. APP. D.C. 369, 411 F.2D 683 (1969). 

GIVEN THIS HISTORY, IT BECOMES QUITE CLEAR WHY THE COURT HAS FOUND
IT NECESSARY TO DISCARD THE "SHARP BREAK" TEST TO REACH THE
PROSPECTIVITY QUESTION IN THIS CASE.  FOR THE APPROVAL BY COURTS OF
APPEALS OF THIS LAW ENFORCEMENT PRACTICE WAS SHORT-LIVED, LESS THAN
UNANIMOUS, IRRECONCILABLE WITH OTHER RULINGS OF THE SAME COURTS, AND
CONTRARY TO THE EXPLICIT DOCTRINE OF THIS COURT IN CARROLL, SUPRA, AS
REAFFIRMED IN BRINEGAR V. UNITED STATES, 338 U.S. 160, 164 (1949), AND
OTHER CASES.  IF A CASE IN THIS COURT MERELY REAFFIRMING LONGSTANDING
PRECEDENT CAN EVER CONSTITUTE THE "AVULSIVE CHANGE (IN) THE CURRENT OF
THE LAW" REQUIRED BEFORE WE EVEN ADDRESS THE ISSUE OF PROSPECTIVITY,
HANOVER SHOE, 392 U.S., AT 499, SURELY ALMEIDA-SANCHEZ WAS NOT SUCH A
CASE.  /5/ 

THIS CASE IS A GOOD ILLUSTRATION OF THE DANGERS OF ADDRESSING
PROSPECTIVITY WHERE THE "SHARP BREAK" STANDARD IS NOT MET.  AS THIS
COURT HAS RECOGNIZED, APPLYING A DECISION ONLY PROSPECTIVELY, /6/ CAN
ENTAIL INEQUITY TO OTHERS WHOSE CASES ARE HERE ON DIRECT REVIEW BUT ARE
HELD PENDING DECISION OF THE CASE SELECTED FOR DECISION.  STOVALL V.
DENNO, 388 U.S. 293, 301 (1967).  ALTHOUGH I CONTINUE TO BELIEVE THAT
DENIAL OF THE BENEFITS OF THE DECISION IN SUCH CASES IS A TOLERABLE
ANOMALY IN CASES IN WHICH DEFENDANTS WERE ACCORDED ALL CONSTITUTIONAL
RIGHTS THEN ANNOUNCED BY THIS COURT, IT BECOMES INTOLERABLE, AND A
TRAVESTY OF JUSTICE, WHEN THE COURT DOES NO MORE THAN REAFFIRM AND
APPLY LONG-ESTABLISHED CONSTITUTIONAL PRINCIPLES TO CORRECT AN
ABERRATION CREATED BY THE COURTS OF APPEALS. 

MORE FUNDAMENTALLY, APPLYING A DECISION OF THIS COURT PROSPECTIVELY
WHEN THE DECISION IS NOT A "SHARP BREAK IN THE WEB OF THE LAW," MILTON
V. WAINWRIGHT, 407 U.S. 371, 381 N. 2 (1972) (STEWART, J., DISSENTING),
ENCOURAGES IN THOSE RESPONSIBLE FOR LAW ENFORCEMENT A PARSIMONIOUS
APPROACH TO ENFORCEMENT OF CONSTITUTIONAL RIGHTS.  " ONE NEED NOT BE A
RIGID PARTISAN OF BLACKSTONE TO RECOGNIZE THAT MANY, THOUGH NOT ALL, OF
THIS COURT'S CONSTITUTIONAL DECISIONS ARE GROUNDED UPON FUNDAMENTAL
PRINCIPLES WHOSE CONTENT DOES NOT CHANGE DRAMATICALLY FROM YEAR TO
YEAR...."  DESIST V. UNITED STATES, 394 U.S. 244, 263 (1969) (HARLAN,
J., DISSENTING).  TO APPLY OUR OPINIONS PROSPECTIVELY EXCEPT IN "SHARP
BREAK" CASES "ADDS) THIS COURT'S APPROVAL TO THOSE WHO HONOR THE
CONSTITUTION'S MANDATE ONLY WHERE ACCEPTABLE TO THEM OR COMPELLED BY
THE PRECISE AND INESCAPABLE SPECIFICS OF A DECISION OF THIS COURT....
HISTORY DOES NOT EMBRACE THE YEARS NEEDED FOR US TO HOLD, MILLIMETER BY
MILLIMETER, THAT SUCH AND SUCH A PENETRATION OF INDIVIDUAL RIGHTS IS AN
INFRINGEMENT OF THE CONSTITUTION'S GUARANTEES.  THE VITALITY OF OUR
CONSTITUTION DEPENDS UPON CONCEPTUAL FAITHFULNESS AND NOT MERELY
DECISIONAL OBEDIENCE.  CERTAINLY, THIS COURT SHOULD NOT ENCOURAGE
POLICE OR OTHER COURTS TO DISREGARD THE PLAIN PURPORT OF OUR DECISIONS
AND TO ADOPT A LET'S-WAIT-UNTIL-IT'S-DECIDED APPROACH."  ID., AT 277
(FORTAS, J., DISSENTING).  /7/

        II 

NEVERTHELESS, THE COURT SUBSTITUTES, AT LEAST AS RESPECTS THE
AVAILABILITY OF THE EXCLUSIONARY RULE IN CASES INVOLVING SEARCHES
INVALID UNDER THE FOURTH AMENDMENT, A PRESUMPTION AGAINST THE
AVAILABILITY OF DECISIONS OF THIS COURT EXCEPT PROSPECTIVELY.  THE
SUBSTITUTION DISCARDS NOT ONLY THE "SHARP BREAK" DETERMINANT BUT ALSO
THE EQUALLY ESTABLISHED PRINCIPLE THAT PROSPECTIVITY "IS NOT
AUTOMATICALLY DETERMINED BY THE PROVISION OF THE CONSTITUTION ON WHICH
THE DICTATE IS BASED.... (W)E MUST DETERMINE RETROACTIVITY 'IN EACH
CASE' BY LOOKING TO THE PECULIAR TRAITS OF THE SPECIFIC 'RULE IN
QUESTION.'"  JOHNSON V. NEW JERSEY, 384 U.S. 719, 728 (1966).  /8/
LINKLETTER V. WALKER, 381 U.S. 618 (1965), THE SEMINAL PROSPECTIVITY
DECISION, HELD ONLY THAT "THE COURT MAY IN THE INTEREST OF JUSTICE MAKE
(A) RULE PROSPECTIVE ... WHERE THE EXIGENCIES OF THE SITUATION REQUIRE
SUCH AN APPLICATION."  ID., AT 628 (EMPHASIS ADDED).  TODAY THE COURT
STANDS THE LINKLETTER HOLDING ON ITS HEAD BY CREATING A CLASS OF CASES
IN WHICH NONRETROACTIVITY IS THE RULE AND NOT, AS HERETOFORE, THE
EXCEPTION. 

THE COURT'S STATED REASON FOR THIS REMARKABLE DEPARTURE FROM SETTLED
PRINCIPLES IS "THE POLICIES UNDERLYING THE (EXCLUSIONARY) RULE."  ANTE,
AT 534 - 535.  BUT THE POLICIES IDENTIFIED BY THE COURT AS UNDERLYING
THAT RULE IN FOURTH AMENDMENT CASES ARE DISTORTED OUT OF ALL
RESEMBLANCE TO THE UNDERSTANDING OF PURPOSES THAT HAS HERETOFORE
PREVAILED.  I SAID IN MY DISSENT IN UNITED STATES V. CALANDRA, 414 U.S.
338 (1974), THAT THAT DECISION LEFT ME "WITH THE UNEASY FEELING THAT
... A MAJORITY OF MY COLLEAGUES HAVE POSITIONED THEMSELVES TO ...
ABANDON ALTOGETHER THE EXCLUSIONARY RULE IN SEARCH-AND-SEIZURE CASES." 
ID., AT 365.  MY UNEASINESS APPROACHES CONVICTION AFTER TODAY'S
TREATMENT OF THE RULE. 

        III 

THE COURT'S OPINION DEPENDS UPON AN ENTIRELY NEW UNDERSTANDING OF
THE EXCLUSIONARY RULE IN FOURTH AMENDMENT CASES, ONE WHICH, IF THE
VAGUE CONTOURS OUTLINED TODAY ARE FILLED IN AS I FEAR THEY WILL BE,
FORECASTS THE COMPLETE DEMISE OF THE EXCLUSIONARY RULE AS FASHIONED BY
THIS COURT IN OVER 6 YEARS OF FOURTH AMENDMENT JURISPRUDENCE.  SEE
WEEKS V. UNITED STATES, 232 U.S. 383 (1914).  /9/ AN ANALYSIS OF THE
COURT'S UNSUCCESSFULLY VEILED REFORMULATION DEMONSTRATES THAT ITS
APPARENT RUSH TO DISCARD 61 YEARS OF CONSTITUTIONAL DEVELOPMENT HAS
PRODUCED A FORMULA DIFFICULT TO COMPREHEND AND, ON ANY UNDERSTANDING OF
ITS MEANING, IMPOSSIBLE TO JUSTIFY. 

THE COURT SIGNALS ITS NEW APPROACH IN THESE WORDS:  " IF THE PURPOSE
OF THE EXCLUSIONARY RULE IS TO DETER UNLAWFUL POLICE CONDUCT, THEN
EVIDENCE OBTAINED FROM A SEARCH SHOULD BE SUPPRESSED ONLY IF IT CAN BE
SAID THAT THE LAW ENFORCEMENT OFFICER HAD KNOWLEDGE, OR MAY PROPERLY BE
CHARGED WITH KNOWLEDGE, THAT THE SEARCH WAS UNCONSTITUTIONAL UNDER THE
FOURTH AMENDMENT."  ANTE, AT 542.  TRUE, THE COURT DOES NOT STATE IN SO
MANY WORDS THAT THIS FORMULATION OF THE EXCLUSIONARY RULE IS TO BE
APPLIED BEYOND THE PRESENT RETROACTIVITY CONTEXT.  BUT THE PROPOSITION
IS STATED GENERALLY AND, PARTICULARLY IN VIEW OF THE CONCOMITANT
EXPANSION OF PROSPECTIVITY ANNOUNCED TODAY, PART I, SUPRA, I HAVE NO
CONFIDENCE THAT THE NEW FORMULATION IS TO BE CONFINED TO PUTATIVE
RETROACTIVITY CASES. 

RATHER, I SUSPECT THAT WHEN A SUITABLE OPPORTUNITY ARISES, TODAY'S
REVISION OF THE EXCLUSIONARY RULE WILL BE PRONOUNCED APPLICABLE TO ALL
SEARCH-AND-SEIZURE CASES.  I THEREFORE REGISTER MY STRONG DISAGREEMENT
NOW. 

THE NEW FORMULATION OBVIOUSLY REMOVES THE VERY FOUNDATION OF THE
EXCLUSIONARY RULE AS IT HAS BEEN EXPRESSED IN COUNTLESS DECISIONS. 
UNTIL NOW THE RULE IN FEDERAL CRIMINAL CASES DECIDED ON DIRECT REVIEW
/10/ HAS BEEN THAT SUPPRESSION IS NECESSARILY THE SANCTION TO BE
APPLIED WHEN IT IS DETERMINED THAT THE EVIDENCE WAS IN FACT ILLEGALLY
ACQUIRED.  /11/ THE REVISION UNVEILED TODAY SUGGESTS THAT INSTEAD OF
THAT SINGLE INQUIRY, DISTRICT JUDGES MAY ALSO HAVE TO PROBE THE
SUBJECTIVE KNOWLEDGE OF THE OFFICIAL WHO ORDERS THE SEARCH, AND THE
INFERENCES FROM EXISTING LAW THAT OFFICIAL SHOULD HAVE DRAWN.  /12/
THE DECISION WHETHER OR NOT TO ORDER SUPPRESSION WOULD THEN TURN UPON
WHETHER, BASED ON THAT EXPANDED INQUIRY, SUPPRESSION WOULD COMPORT WITH
EITHER THE DETERRENCE RATIONALE OF THE EXCLUSIONARY RULE OR "THE
IMPERATIVE OF JUDICIAL INTEGRITY.  /13/ 

ON THIS REASONING, ALMEIDA-SANCHEZ ITSELF WAS WRONGLY DECIDED.  FOR
IF THE BORDER PATROLMEN WHO SEARCHED PELTIER COULD NOT HAVE KNOWN THAT
THEY WERE ACTING UNCONSTITUTIONALLY, AND THUS COULD NOT HAVE BEEN
DETERRED FROM THE SEARCH BY THE POSSIBILITY OF THE EXCLUSION OF THE
EVIDENCE FROM THE TRIAL, OBVIOUSLY THE BORDER PATROLMEN WHO SEARCHED
ALMEIDA-SANCHEZ SEVERAL YEARS EARLIER HAD NO REASON TO BE ANY MORE
PERCIPIENT.  IF APPLICATION OF THE EXCLUSIONARY RULE DEPENDS UPON A
SHOWING THAT THE PARTICULAR OFFICIALS WHO CONDUCTED OR AUTHORIZED A
PARTICULAR SEARCH KNEW OR SHOULD HAVE KNOWN THAT THEY WERE VIOLATING A
SPECIFIC, ESTABLISHED CONSTITUTIONAL RIGHT, THE REVERSAL OF ALMEIDA
SANCHEZ' CONVICTION WAS PLAINLY ERROR. 

OTHER DEFECTS OF TODAY'S NEW FORMULATION ARE ALSO PATENT.  FIRST,
THIS NEW DOCTRINE COULD STOP DEAD IN ITS TRACKS JUDICIAL DEVELOPMENT OF
FOURTH AMENDMENT RIGHTS.  FOR IF EVIDENCE IS TO BE ADMITTED IN CRIMINAL
TRIALS IN THE ABSENCE OF CLEAR PRECEDENT DECLARING THE SEARCH IN
QUESTION UNCONSTITUTIONAL, THE FIRST DUTY OF A COURT WILL BE TO DENY
THE ACCUSED'S MOTION TO SUPPRESS IF HE CANNOT CITE A CASE INVALIDATING
A SEARCH OR SEIZURE ON IDENTICAL FACTS.  /14/ YET, EVEN ITS OPPONENTS
CONCEDE THAT THE GREAT SERVICE OF THE EXCLUSIONARY RULE HAS BEEN ITS
USEFULNESS IN FORCING JUDGES TO ENLIGHTEN OUR UNDERSTANDING OF FOURTH
AMENDMENT GUARANTEES. 

" IT IS ..., IMPERATIVE TO HAVE A PRACTICAL PROCEDURE BY WHICH
COURTS CAN REVIEW ALLEGED VIOLATIONS OF CONSTITUTIONAL RIGHTS AND
ARTICULATE THE MEANING OF THOSE RIGHTS.  THE ADVANTAGE OF THE
EXCLUSIONARY RULE--ENTIRELY APART FROM ANY DIRECT DETERRENT EFFECT--IS
THAT IT PROVIDES AN OCCASION FOR JUDICIAL REVIEW, AND IT GIVES
CREDIBILITY TO THE CONSTITUTIONAL GUARANTEES.  BY DEMONSTRATING THAT
SOCIETY WILL ATTACH SERIOUS CONSEQUENCES TO THE VIOLATION OF
CONSTITUTIONAL RIGHTS, THE EXCLUSIONARY RULE INVOKES AND MAGNIFIES THE
MORAL AND EDUCATIVE FORCE OF THE LAW.  OVER THE LONG TERM THIS MAY
INTEGRATE SOME FOURTH AMENDMENT IDEALS INTO THE VALUE SYSTEM OR NORMS
OF BEHAVIOR OF LAW ENFORCEMENT AGENCIES."  OAKS, STUDYING THE
EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37 U. CHI.  L. REV. 665, 756
(1970) (HEREAFTER OAKS).  SEE ALSO AMSTERDAM, PERSPECTIVES ON THE
FOURTH AMENDMENT, 58 MINN. L. REV. 349, 429 - 430 (1974) (HEREAFTER
AMSTERDAM).  WHILE DISTINGUISHED AUTHORITY HAS SUGGESTED THAT AN
EFFECTIVE AFFIRMATIVE REMEDY COULD EQUALLY SERVE THAT FUNCTION, SEE
OAKS, SUPRA, AND BIVENS V. SIX UNKNOWN FEDERAL NARCOTICS AGENTS, 403
U.S. 388, 420 - 423 (1971) (BURGER, C.J., DISSENTING), NO EQUALLY
EFFECTIVE ALTERNATIVE HAS YET BEEN DEVISED. 

SECOND, CONTRARY TO THE COURT'S ASSUMPTION, THE EXCLUSIONARY RULE
DOES NOT DEPEND IN ITS DETERRENCE RATIONALE ON THE PUNISHMENT OF
INDIVIDUAL LAW ENFORCEMENT OFFICIALS.  /5/ 

INDEED, ONE GENERAL FALLACY IN THE REASONING OF ON THE PUNISHMENT OF
INDIVIDUAL LAW ENFORCEMENT OFFICIALS.  /15/ IS MEANT TO DETER OFFICIAL
WRONGDOERS BY PUNISHMENT OR THREAT OF PUNISHMENT.  IT IS ALSO THE
FALLACY OF THE COURT'S ATTEMPT TODAY TO OUTLINE A REVISION IN THE
EXCLUSIONARY RULE. 

DETERRENCE CAN OPERATE IN SEVERAL WAYS.  THE SIMPLEST IS SPECIAL OR
SPECIFIC DETERRENCE--PUNISHING AN INDIVIDUAL SO THAT HE WILL NOT REPEAT
THE SAME BEHAVIOR.  BUT "(THE EXCLUSIONARY RULE IS NOT AIMED AT SPECIAL
DETERRENCE SINCE IT DOES NOT IMPOSE ANY DIRECT PUNISHMENT ON A LAW
ENFORCEMENT OFFICIAL WHO HAS BROKEN THE RULE ...., THE EXCLUSIONARY
RULE IS AIMED AT AFFECTING THE WIDER AUDIENCE OF ALL LAW ENFORCEMENT
OFFICIALS AND SOCIETY AT LARGE.  IT IS MEANT TO DISCOURAGE VIOLATIONS
BY INDIVIDUALS WHO HAVE NEVER EXPERIENCED ANY SANCTION FOR THEM."  OAKS
709 - 710.  /16/ 

THUS, THE EXCLUSIONARY RULE, FOCUSED UPON GENERAL, NOT SPECIFIC,
DETERRENCE, DEPENDS NOT UPON THREATENING A SANCTION FOR LACK OF
COMPLIANCE BUT UPON REMOVING AN INDUCEMENT TO VIOLATE FOURTH AMENDMENT
RIGHTS.  ELKINS V. UNITED STATES, 364 U.S. 206, 217 (1960), CLEARLY
EXPLAINED THAT THE EXCLUSIONARY RULE'S "PURPOSE IS TO DETER--, TO
COMPEL RESPECT FOR THE CONSTITUTIONAL GUARANTY IN THE ONLY EFFECTIVELY
AVAILABLE WAY--BY REMOVING THE INCENTIVE TO DISREGARD IT."  (EMPHASIS
ADDED.)  " A CRIMINAL COURT SYSTEM FUNCTIONING WITHOUT AN EXCLUSIONARY
RULE ..., IS THE EQUIVALENT OF A GOVERNMENT PURCHASING AGENT PAYING
PREMIUM PRICES FOR EVIDENCE BRANDED WITHTHE STAMP OF
UNCONSTITUTIONALITY.  . . . IF (THE GOVERNMENT) RECEIVES THE PRODUCTS
OF (ILLEGAL) SEARCHES AND SEIZURES..., AND USES THEM AS THE MEANS OF
CONVICTING PEOPLE WHOM THE OFFICER CONCEIVES IT TO BE HIS JOB TO GET
CONVICTED, IT IS NOT MERELY TOLERATING BUT INDUCING UNCONSTITUTIONAL
SEARCHES AND SEIZURES." 

AMSTERDAM 431 - 432.  /17/ (EMPHASIS SUPPLIED.) 

WE THEREFORE MIGHT CONSIDER, IN THIS LIGHT, WHAT MAY HAVE INFLUENCED
THE OFFICIALS WHO AUTHORIZED ROVING SEARCHES WITHOUT PROBABLE CAUSE
UNDER THE SUPPOSED AUTHORITY OF 8 U.S.C. SEC. 1357 (A) (3) AND 8 CFR
SEC. 287.1 (A) (2) (1973).  /18/ THE STATUTE IS AT BEST AMBIGUOUS AS TO
WHETHER PROBABLE CAUSE IS REQUIRED, THOUGH QUITE EXPLICIT THAT A
WARRANT IS NOT.  /19/  THE OFFICIALS COULD THEREFORE READ THE STATUTE
IN ONE OF TWO WAYS.  THEY COULD READ IT NOT TO REQUIRE PROBABLE CAUSE,
REGARD AS IRRELEVANT CARROLL V. UNITED STATES, 267 U.S. 132 (1925),
REQUIRING PROBABLE CAUSE, THOUGH NO WARRANT, BEFORE STOPPING AND
SEARCHING A MOVING AUTOMOBILE UNLESS THE SEARCH IS AT THE BORDER, AND
COMMAND THEIR SUBORDINATES TO STOP AT RANDOM ANY CAR WITHIN 100 MILES
OF THE BORDER AND SEARCH FOR ILLEGAL ALIENS.  OR THEY COULD CONCLUDE
THAT BECAUSE THE STATUTE IS SILENT ABOUT PROBABLE CAUSE, AND BECAUSE
CARROLL SEEMS TO REQUIRE IT, THEY SHOULD INSTRUCT THEIR SUBORDINATES TO
STOP MOVING VEHICLES AWAY FROM THE BORDER ONLY IF THERE IS SOME GOOD
REASON TO BELIEVE THAT THEY CONTAIN ILLEGAL ALIENS.  OBVIOUSLY, TODAY'S
DECISION IS A WIDE-OPEN INVITATION TO PURSUE THE FORMER COURSE, BECAUSE
IF THIS COURT LATER DECIDES THAT THE OFFICERS GUESSED WRONG IN A
PARTICULAR CASE, ONE CONVICTION WILL PERHAPS BE LOST, BUT MANY WILL
HAVE BEEN GAINED, SEE SUPRA, AT 549, 554.  THE CONCEPT OF THE
EXCLUSIONARY RULE UNTIL TODAY, HOWEVER, WAS DESIGNED TO DISCOURAGE
OFFICIALS FROM INVARIABLY OPTING FOR THE CHOICE THAT COMPROMISES FOURTH
AMENDMENT RIGHTS, EVEN THOUGH THAT RULE HAS NOT WORKED PERFECTLY AS IT
DID NOT IN THIS CASE.  " THE EFFORTS OF THE COURTS AND THEIR OFFICIALS
TO BRING THE GUILTY TO PUNISHMENT, PRAISEWORTHY AS THEY ARE, ARE NOT TO
BE AIDED BY THE SACRIFICE OF THOSE GREAT PRINCIPLES ESTABLISHED BY
YEARS OF ENDEAVOR AND SUFFERING WHICH HAVE RESULTED IN THEIR EMBODIMENT
IN THE FUNDAMENTAL LAW OF THE LAND."     WEEKS, 232 U.S., AT 393
(EMPHASIS SUPPLIED). 

ASIDE FROM THIS MOST FUNDAMENTAL ERROR, SOLID PRACTICAL REASONS
MILITATE FORCEFULLY IN FAVOR OF REJECTION OF TODAY'S SUGGESTED ROAD TO
REVISION OF THE EXCLUSIONARY RULE.  THIS COURT HAS ALREADY REJECTED A
CASE-BY-CASE APPROACH TO THE EXCLUSIONARY RULE.  AFTER WOLF V.
COLORADO, 338 U.S. 25 (1949), HAD HELD THE FOURTH AMENDMENT APPLICABLE
TO THE STATES WITHOUT ALSO REQUIRING THE STATES TO FOLLOW THE
EXCLUSIONARY RULE OF WEEKS, IRVINE V. CALIFORNIA, 347 U.S. 128 (1954),
PRESENTED THE OPPORTUNITY OF COMPELLING THE STATES TO APPLY WEEKS IN
ESPECIALLY EGREGIOUS SITUATIONS SUCH AS IRVINE'S.  THE COURT REJECTED
THE OPPORTUNITY BECAUSE "A DISTINCTION OF THE KIND URGED WOULD LEAVE
THE RULE SO INDEFINITE THAT NO STATE COURT COULD KNOW WHAT IT SHOULD
RULE IN ORDER TO KEEP ITS PROCESSES ON SOLID CONSTITUTIONAL GROUND." 
ID., AT 134 (OPINION OF JACKSON, J.).  SEE ALSO ID., AT 138 (CLARK, J.,
CONCURRING). 

TODAY'S FORMULATION EXTENDED TO ALL SEARCH-AND-SEIZURE CASES WOULD
INEVITABLY INTRODUCE THE SAME UNCERTAINTY, BY ADDING A NEW LAYER OF
FACTFINDING IN DECIDING MOTIONS TO SUPPRESS IN THE ALREADY HEAVILY
BURDENED FEDERAL COURTS.  THE DISTRICT COURTS WOULD HAVE TO DETERMINE,
AND THE APPELLATE COURTS TO REVIEW, SUBJECTIVE STATES OF MIND OF
NUMEROUS PEOPLE, SEE N. 18, SUPRA, AND REASONABLE OBJECTIVE
EXTRAPOLATIONS OF EXISTING LAW, ON EACH OF THE THOUSANDS OF SUPPRESSION
MOTIONS PRESENTED EACH YEAR.  /20/ NICE QUESTIONS WILL HAVE TO BE
FACED, SUCH AS WHETHER TO EXCLUDE EVIDENCE OBTAINED IN A SEARCH WHICH
OFFICERS BELIEVED TO BE UNCONSTITUTIONAL BUT WHICH IN FACT WAS NOT, AND
WHETHER TO EXCLUDE EVIDENCE OBTAINED IN A SEARCH IN FACT
UNCONSTITUTIONAL AND BELIEVED TO BE UNCONSTITUTIONAL, BUT WHICH THE
ORDINARY, REASONABLE POLICE OFFICER MIGHT WELL HAVE BELIEVED WAS
CONSTITUTIONAL.  ONE CRITICISM OF THE PRESENT FORMULATION OF THE
EXCLUSIONARY RULE IS THAT IT MAY DEFLECT THE INQUIRY IN A CRIMINAL
TRIAL FROM THE GUILT OF THE DEFENDANT TO THE CULPABILITY OF THE
POLICE.  THE FORMULATION SUGGESTED TODAY WOULD VASTLY EXACERBATE THIS
POSSIBILITY, HEAVILY BURDEN THE LOWER COURTS, AND WORST OF ALL, ERODE
IRRETRIEVABLY THE EFFICACY OF THE EXCLUSION PRINCIPLE.  /21/ INDEED,
"NO (FEDERAL) COURT COULD KNOW WHAT IT SHOULD RULE IN ORDER TO KEEP ITS
PROCESSES ON SOLID CONSTITUTIONAL GROUND."  CF. 347 U.S., AT 134. 
BECAUSE OF THE SUPERFICIAL AND SUMMARY WAY THAT THE COURT TREATS THE
QUESTION THE FORMULATION WILL, I AM CERTAIN, BE UNSATISFACTORY EVEN TO
THOSE CONVINCED, AS I AM NOT, THAT THE EXCLUSIONARY RULE MUST BE
DRASTICALLY OVERHAULED.  /22/ 

IF A MAJORITY OF MY COLLEAGUES ARE DETERMINED TO DISCARD THE
EXCLUSIONARY RULE IN FOURTH AMENDMENT CASES, THEY SHOULD FORTHRIGHTLY
DO SO, AND BE DONE WITH IT.  THIS BUSINESS OF SLOW STRANGULATION OF THE
RULE, WITH NO OPPORTUNITY AFFORDED PARTIES MOST CONCERNED TO BE HEARD,
WOULD BE INDEFENSIBLE IN ANY CIRCUMSTANCES. 

BUT TO ATTEMPT COVERTLY THE EROSION OF AN IMPORTANT PRINCIPLE OVER
61 YEARS IN THE MAKING AS APPLIED IN FEDERAL COURTS CLEARLY DEMEANS THE
ADJUDICATORY FUNCTION, AND THE INSTITUTIONAL INTEGRITY OF THIS COURT. 

/1/ THIS REQUIREMENT HAS BEEN VARIOUSLY STATED.  SEE, E. G., DESIST
V. UNITED STATES, 394 U.S. 244, 248 (1969) ("A CLEAR BREAK WITH THE
PAST"); MILTON V. WAINWRIGHT, 407 U.S. 371, 381 N. 2 (1972) (STEWART,
J., DISSENTING) ("A SHARP BREAK IN THE WEB OF THE LAW"); CHEVRON OIL
CO. V. HUSON, 404 U.S. 97, 106 (1971) ("THE DECISION TO BE APPLIED
NONRETROACTIVELY MUST ESTABLISH A NEW PRINCIPLE OF LAW, EITHER BY
OVERRULING CLEAR PAST PRECEDENT ON WHICH LITIGANTS MAY HAVE RELIED ...
OR BY DECIDING AN ISSUE OF FIRST IMPRESSION WHOSE RESOLUTION WAS NOT
CLEARLY FORESHADOWED..."). 

/2/ NOR IS THERE ANYTHING IN THE LEGISLATIVE HISTORY OF SEC. 1357
(A) WHICH SUGGESTS THAT CONGRESS INTENDED TO AUTHORIZE THE BORDER
PATROL TO STOP ANY CAR IN MOTION WITHIN 100 MILES OF A BORDER.  SEE
H.R. REP. NO. 186, 79TH CONG., 1ST SESS., 2 (1945); S. REP. NO. 632,
79TH CONG., 1ST SESS., 2 (1945).  SEE ALSO UNITED STATES V. ALMEIDA
SANCHEZ, 452 F.2D 459, 465 (CA9 1971) (BROWNING, J., DISSENTING):  "
THE MORE REASONABLE INTERPRETATION OF A STATUTE OF THIS SORT IS NOT
THAT IT DEFINES A CONSTITUTIONAL STANDARD OF REASONABLENESS FOR
SEARCHES BY THE GOVERNMENT AGENTS TO WHOM IT APPLIES, BUT RATHER THAT
IT DELEGATES AUTHORITY TO BE EXERCISED BY THOSE AGENTS IN ACCORDANCE
WITH CONSTITUTIONAL LIMITATIONS.... THE STATUTE AUTHORIZES THE OFFICERS
TO CONDUCT SUCH SEARCHES--AND A SEARCH WITHIN THE STATUTE'S TERMS IS
NOT ILLEGAL AS BEYOND THE OFFICER'S STATUTORY AUTHORITY.  BUT A SEARCH
WITHIN THE LITERAL LANGUAGE OF THE (STATUTE) IS NONETHELESS BARRED IF
IT VIOLATES THE FOURTH AMENDMENT.  SEE, E. G., BOYD V. UNITED STATES,
116 U.S. 616 ... (1886)." 

/3/ IN CERVANTES, THE COURT SAID:  " THE GOVERNMENT ... APPEARS TO
ACCEPT APPELLANT'S PROPOSITION THAT THE REASONABLENESS OF A SEARCH MADE
OF AN AUTOMOBILE ON THE HIGHWAY AND ITS DRIVER DEPENDS UPON A SHOWING
OF PROBABLE CAUSE.... THAT THIS IS THE PROPER TEST OF THE
REASONABLENESS OF SUCH A SEARCH, SEE CARROLL V. UNITED STATES, SUPRA,
267 U.S., AT PAGES 155 - 156...."  263 F. 2D, AT 803, AND N. 4. 
DESPITE THIS GENERAL LANGUAGE, CERVANTES WAS LATER SUMMARILY
DISTINGUISHED AS APPLYING ONLY TO SEARCHES FOR CONTRABAND, AND NOT TO
SEARCHES FOR ALIENS.  FUMAGALLI V. UNITED STATES, 429 F.2D, AT 1013. 
NO ATTEMPT WAS EVER MADE TO EXPLAIN HOW A SEARCH FOR ALIENS COULD BE
DISTINGUISHED UNDER CARROLL FROM A SEARCH FOR CONTRABAND.  SEE UNITED
STATES V. ALMEIDA-SANCHEZ, 452 F.2D, AT 464 (BROWNING, J.,
DISSENTING). 

/4/ TITLE 19 U.S.C. SEC. 482 PROVIDES IN PERTINENT PART:  " ANY OF
THE OFFICERS OR PERSONS AUTHORIZED TO BOARD OR SEARCH VESSELS MAY STOP,
SEARCH, AND EXAMINE, AS WELL WITHOUT AS WITHIN THEIR RESPECTIVE
DISTRICTS, ANY VEHICLE, ... OR PERSON, ON WHICH OR WHOM HE OR THEY
SHALL SUSPECT THERE IS MERCHANDISE WHICH IS SUBJECT TO DUTY, OR SHALL
HAVE BEEN INTRODUCED INTO THE UNITED STATES IN ANY MANNER CONTRARY TO
LAW ...." 

" IN ORDER TO AVOID CONFLICT BETWEEN THIS STATUTE AND THE FOURTH
AMENDMENT, THE STATUTORY LANGUAGE HAS BEEN RESTRICTED BY THE COURTS TO
'BORDER SEARCHES.'"  UNITED STATES V. WEIL, 432 F.2D 1320, 1323 (CA9
1970). 

/5/ MOST CASES WHERE THE COURT HAS ORDAINED PROSPECTIVE APPLICATION
OF A NEW RULE OF CRIMINAL PROCEDURE HAVE INVOLVED DECISIONS WHICH
EXPLICITLY OVERRULED A PREVIOUS DECISION OF THIS COURT.  SEE LINKLETTER
V. WALKER, 381 U.S. 618 (1965), INVOLVING THE RETROACTIVITY OF MAPP V.
OHIO, 367 U.S. 643 (1961), WHICH HAD OVERRULED WOLF V. COLORADO, 338
U.S. 25 (1949); WILLIAMS V. UNITED STATES, 401 U.S. 646 (1971),
INVOLVING THE RETROACTIVITY OF CHIMEL V. CALIFORNIA, 395 U.S. 752
(1969), WHICH OVERRULED UNITED STATES V. RABINOWITZ, 339 U.S. 56
(1950), AND HARRIS V. UNITED STATES, 331 U.S. 145 (1947); FULLER V.
ALASKA, 393 U.S. 80 (1968) (PER CURIAM), INVOLVING THE RETROACTIVITY OF
LEE V. FLORIDA, 392 U.S. 378 (1968), WHICH OVERRULED SCHWARTZ V. TEXAS,
344 U.S. 199 (1952); DESIST V. UNITED STATES, 394 U.S. 244 (1969),
INVOLVING THE RETROACTIVITY OF KATZ V. UNITED STATES, 389 U.S. 347
(1967), WHICH SPECIFICALLY REJECTED GOLDMAN V. UNITED STATES, 316 U.S.
129 (1942), AND OLMSTEAD V. UNITED STATES, 277 U.S. 438 (1928); TEHAN
V. UNITED STATES EX REL. SHOTT, 382 U.S. 406 (1966), INVOLVING THE
RETROACTIVITY OF GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965), WHICH
OVERRULED TWINING V. NEW JERSEY, 211 U.S. 78 (1908); DANIEL V.
LOUISIANA, 420 U.S. 31 (1975), INVOLVING THE RETROACTIVITY OF TAYLOR V.
LOUISIANA, 419 U.S. 522 (1975), WHICH SPECIFICALLY DISAPPROVED HOYT V.
FLORIDA, 368 U.S. 57 (1961). 

IN OTHER INSTANCES, THE PRACTICE RECENTLY DISAPPROVED HAD, AT LEAST
ARGUABLY, BEEN SANCTIONED PREVIOUSLY BY THIS COURT.  SEE JOHNSON V. NEW
JERSEY, 384 U.S. 719, 731 (1966); GOSA V. MAYDEN, 413 U.S. 665, 673
(1973) (OPINION OF BLACKMUN, J.); ADAMS V. ILLINOIS, 405 U.S. 278
(1972). 

FINALLY, IN ANOTHER GROUP OF CASES, THE RULE APPLIED PROSPECTIVELY
WAS MERELY A PROPHYLACTIC ONE, DESIGNED BY THIS COURT TO PROTECT
UNDERLYING RIGHTS ALREADY ANNOUNCED AND APPLICABLE RETROACTIVELY.  SEE
HALLIDAY V. UNITED STATES, 394 U.S. 831 (1969) (PER CURIAM); STOVALL V.
DENNO, 388 U.S. 293 (1967); MICHIGAN V. PAYNE, 412 U.S. 47 (1973). 

/6/ OF COURSE, WE HAVE ALWAYS GIVEN THE BENEFIT OF A CRIMINAL
PROCEDURE DECISION TO THE DEFENDANT IN WHOSE CASE THE PRINCIPLE WAS
ANNOUNCED.  SEE STOVALL V. DENNO, SUPRA, AT 301. 

/7/ I CONTINUE TO BELIEVE THAT MR. JUSTICE HARLAN AND MR. JUSTICE
FORTAS WERE IN ERROR IN DESIST ITSELF, BECAUSE KATZ V. UNITED STATES,
SUPRA, DID OVERRULE CLEAR PAST PRECEDENT OF THIS COURT.  BUT I THINK
THAT THE PROPHECY OF HORRORS BY THE DISSENTERS IN DESIST HAS, WITH THE
COURT'S OPINION TODAY, COME TRUE. 

/8/ SEE ALSO MICHIGAN V. TUCKER, 417 U.S. 433, 453 N. 26 (1974):  "
UNDER THE FRAMEWORK OF THE ANALYSIS ESTABLISHED IN LINKLETTER, SUPRA,
AND IN SUBSEQUENT CASES, IT WOULD SEEM INDISPENSABLE TO UNDERSTAND THE
BASIS FOR A CONSTITUTIONAL HOLDING OF THE COURT IN ORDER TO LATER
DETERMINE WHETHER THAT HOLDING SHOULD BE RETROACTIVE." 

/9/ THE EXCLUSIONARY RULE IN FEDERAL CASES HAS ROOTS THAT ANTEDATE
EVEN WEEKS.  TWENTY-EIGHT YEARS BEFORE THAT DECISION, IN BOYD V. UNITED
STATES, 116 U.S. 616 (1886), THE COURT HELD THAT THE ADMISSION INTO
EVIDENCE OF PAPERS ACQUIRED BY THE GOVERNMENT IN VIOLATION OF THE
FOURTH AMENDMENT WAS UNCONSTITUTIONAL.  ID., AT 638. 

/10/ I EMPHASIZE THAT THIS IS A FEDERAL CRIMINAL CASE, AND THAT THE
EXCLUSIONARY RULE ISSUE COMES TO US ON DIRECT REVIEW.  THUS, NEITHER
MAPP V. OHIO, 367 U.S. 643 (1961), APPLYING THE FOURTH AMENDMENT
EXCLUSIONARY RULE TO THE STATES, NOR KAUFMAN V. UNITED STATES, 394 U.S.
217 (1969), PERMITTING FOURTH AMENDMENT EXCLUSIONARY RULE ISSUES TO BE
RAISED FOR THE FIRST TIME IN COLLATERAL PROCEEDINGS, IS HERE INVOLVED. 
WHILE ABANDONMENT OF BOTH MAPP AND KAUFMAN HAS AT TIMES BEEN ADVOCATED,
NO JUSTICE HAS INTIMATED THAT WEEKS SHOULD ALSO BE OVERRULED, AT LEAST
IN THE ABSENCE OF SUITABLE AND EFFICACIOUS SUBSTITUTE REMEDIES.  SEE,
ON MAPP, COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 490 (1971) (HARLAN,
J., CONCURRING); ID., AT 492 (BURGER, C.J., DISSENTING IN PART AND
CONCURRING IN PART); ID., AT 493 (BLACK, J., CONCURRING AND
DISSENTING); ID., AT 510 (STATEMENT OF BLACKMUN, J.); ON KAUFMAN, SEE
SCHNECKLOTH V. BUSTAMONTE, 412 U.S. 218, 250 (1973) (POWELL, J., JOINED
BY BURGER, C.J., AND REHNQUIST, J., CONCURRING), SEE ALSO, ID., AT 249
(BLACKMUN, J., CONCURRING).  BUT SEE, ON WEEKS, BIVENS V. SIX UNKNOWN
FEDERAL NARCOTICS AGENTS, 403 U.S. 388, 420 - 421 (1971) (BURGER, C.J.,
DISSENTING); SCHNECKLOTH, SUPRA, AT 267 - 268, N. 25 (POWELL, J.,
CONCURRING). 

/11/ WOLF V. COLORADO, 338 U.S. 25, 28 (1949), SUMMARIZED WEEKS AS
FOLLOWS:  " IN WEEKS V. UNITED STATES, SUPRA, THIS COURT HELD THAT IN A
FEDERAL PROSECUTION THE FOUTH AMENDMENT BARRED THE USE OF EVIDENCE
SECURED THROUGH AN ILLEGAL SEARCH AND SEIZURE."  (EMPHASIS ADDED.) 
ELKINS V. UNITED STATES, 364 U.S. 206, 212 - 213 (1960), AGAIN
CONFIRMED THE WEEKS RULE, "(EVIDENCE WHICH HAD BEEN SEIZED BY FEDERAL
OFFICERS IN VIOLATION OF THE FOURTH AMENDMENT (CAN) NOT BE USED IN A
FEDERAL CRIMINAL PROSECUTION" (EMPHASIS ADDED), AND EXPANDED IT TO
COVER "EVIDENCE OBTAINED BY STATE OFFICERS DURING A SEARCH WHICH, IF
CONDUCTED BY FEDERAL OFFICERS, WOULD HAVE VIOLATED THE DEFENDANT'S
IMMUNITY FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE FOURTH
AMENDMENT," ID., AT 223 (EMPHASIS ADDED); SEE ALSO ID., AT 222. 
SIMILARLY, KER V. CALIFORNIA, 374 U.S. 23, 30 (1963), STATED THAT THE
EXCLUSIONARY RULE "FORBIDS THE FEDERAL GOVERNMENT TO CONVICT A MAN OF
CRIME BY USING TESTIMONY OR PAPERS OBTAINED FROM HIM BY UNREASONABLE
SEARCHES AND SEIZURES AS DEFINED IN THE FOURTH AMENDMENT" (EMPHASIS
SUPPLIED); SEE ALSO ID., AT 34.  THUS, THE TEST WHETHER EVIDENCE SHOULD
BE SUPPRESSED IN FEDERAL COURT HAS ALWAYS BEEN SOLELY WHETHER THE
FOURTH AMENDMENT PROHIBITION AGAINST "UNREASONABLE" SEARCHES AND
SEIZURES WAS VIOLATED, NOTHING MORE AND NOTHING LESS.  SEE ALSO, E. G.,
ALDERMAN V. UNITED STATES, 394 U.S. 165, 176 (1969); UNITED STATES V.
CALANDRA, 414 U.S. 338, 347 (1974). 

/12/ TO BE SURE, THE VERY VAGUENESS OF THE INTIMATED REFORMULATION
AS ARTICULATED TODAY LEAVES UNCLEAR EXACTLY WHAT SHOWING DEMONSTRATES
THAT A LAW ENFORCEMENT OFFICER "MAY PROPERLY BE CHARGED WITH KNOWLEDGE,
THAT THE SEARCH WAS UNCONSTITUTIONAL."  IN THIS CASE, FOR EXAMPLE,
COULD THE BORDER PATROL, A NATIONAL ORGANIZATION, HAVE BEEN CHARGED
WITH KNOWLEDGE OF THE UNCONSTITUTIONALITY OF AN ALMEIDA-SANCHEZ TYPE
SEARCH IF THE COURTS OF APPEALS WERE IN CLEAR CONFLICT ON WHETHER
PROBABLE CAUSE WAS REQUIRED? 

/13/ IT IS GRATIFYING THAT THE COURT AT LEAST VERBALLY RESTORES TO
EXCLUSIONARY-RULE ANALYSIS THIS CONSIDERATION, WHICH FOR ME IS THE CORE
VALUE SERVED BY THE EXCLUSIONARY RULE.  SEE HARRIS V. NEW YORK, 401
U.S., AT 231 - 232 (BRENNAN, J., DISSENTING); UNITED STATES V.
CALANDRA, SUPRA, AT 355 (BRENNAN, J., DISSENTING).  BUT THE COURT'S
TREATMENT OF THIS FACTOR IS WHOLLY UNSATISFACTORY.  SEE ID., AT 359 -
360 (BRENNAN, J., DISSENTING).  I NEED DISCUSS THE QUESTION NO FURTHER,
HOWEVER, SINCE THE COURT MERGES THE "IMPERATIVE OF JUDICIAL INTEGRITY"
INTO ITS DETERRENCE RATIONALE, ANTE AT 538, AND THEN IGNORES THE
IMPERATIVE WHEN IT APPLIES ITS NEW THEORY TO THE FACTS OF THIS CASE,
SEE PART II OF THE COURT'S OPINION.  RATHER, I SHOW IN THE TEXT THAT,
ON THE COURT'S OWN DETERRENCE RATIONALE ALONE, TODAY'S SUGGESTED
REFORMULATION WOULD BE A DISASTER.     /14/ ANGELET V. FAY, 381 U.S.
654 (1965), DECLINED TO DECIDE WHETHER MAPP V. OHIO, 367 U.S. 643
(1961), WOULD BAR FEDERAL AGENTS FROM TESTIFYING IN A STATE COURT
CONCERNING ILLEGALLY OBTAINED EVIDENCE, BECAUSE MAPP WAS HELD IN
LINKLETTER V. WALKER, 381 U.S. 618 (1965), TO BE NONRETROACTIVE. 
SOMEWHAT SIMILARLY, MICHIGAN V. TUCKER, 417 U.S. 433 (1974), REFUSED TO
DECIDE WHETHER MIRANDA V. ARIZONA, 384 U.S. 436 (1966), APPLIES TO
EXCLUDE THE TESTIMONY OF A WITNESS DISCOVERED AS A RESULT OF A
STATEMENT GIVEN AFTER INCOMPLETE MIRANDA WARNINGS, BECAUSE THE
INTERROGATION IN TUCKER OCCURRED BEFORE MIRANDA.  SEE ALSO MICHIGAN V.
PAYNE, 412 U.S., AT 49 - 50, N. 3.  THUS, THERE IS CLEAR PRECEDENT FOR
AVOIDING DECISION OF A CONSTITUTIONAL ISSUE RAISED BY POLICE BEHAVIOR
WHEN IN ANY EVENT THE EVIDENCE WAS ADMISSIBLE IN THE PARTICULAR CASE AT
BAR. 

/15/ CRITICS OF THE EXCLUSIONARY RULE EMPHASIZE THAT IN ACTUAL
OPERATION LAW ENFORCEMENT OFFICIALS ARE RARELY REPRIMANDED, DISCHARGED,
OR OTHERWISE DISCIPLINED WHEN EVIDENCE IS EXCLUDED AT TRIAL FOR SEARCH
AND SEIZURE VIOLATIONS.  WHILE THIS FACT, TO THE EXTENT IT IS TRUE, MAY
LIMIT THE EFFICACY OF THE EXCLUSIONARY RULE, IT DOES NOT, FOR THE
REASONS STATED IN THE TEXT, PROVE IT USELESS.  SUGGESTIONS ARE EMERGING
FOR TAILORING THE EXCLUSIONARY RULE TO THE ADOPTION AND ENFORCEMENT OF
REGULATIONS AND TRAINING PROCEDURES CONCERNING SEARCHES AND SEIZURES BY
LAW ENFORCEMENT AGENCIES.  AMSTERDAM 409 ET SEQ.; KAPLAN, THE LIMITS OF
THE EXCLUSIONARY RULE, 26 STAN.  L. REV. 1027, 1050 ET SEQ. (1974). 
TODAY'S APPROACH, RATHER THAN ADVANCING THIS GOAL, WOULD DIMINISH THE
INCENTIVE FOR LAW ENFORCEMENT AGENCIES TO TRAIN AND SUPERVISE
SUBORDINATE OFFICERS.  SEE ID., AT 1044.  AT ANY RATE, TO THE EXTENT
LAW ENFORCEMENT AGENCIES DO VISIT UPON INDIVIDUAL EMPLOYEES
CONSEQUENCES FOR CONDUCTING SEARCHES AND SEIZURES WHICH ARE LATER HELD
ILLEGAL, THE AGENCIES CAN BE EXPECTED TO TAKE ACCOUNT OF THE DEGREE OF
DEPARTURE FROM EXISTING NORMS AS ELUCIDATED IN COURT DECISIONS.  THUS,
THERE IS NO NEED FOR THE COURTS TO ADJUST THE EXCLUSIONARY RULE IN
ORDER TO ASSURE FAIRNESS TO INDIVIDUAL OFFICIALS OR TO PROMOTE
DECISIVENESS. 

/16/ SEE ALSO AMSTERDAM 431: 

" THE COMMON FOCUS ON THE CONCEPT OF 'DETERRENCE' IN THE DEBATE OVER
THE EXCLUSIONARY RULE CAN BE QUITE MISLEADING.  IT SUGGESTS THAT THE
POLICE HAVE A GOD-GIVEN INCLINATION TO COMMIT UNCONSTITUTIONAL SEARCHES
AND SEIZURES UNLESS THEY ARE 'DETERRED' FROM THAT BEHAVIOR.  ONCE THIS
ASSUMPTION IS INDULGED, IT IS EASY ENOUGH TO CRITICIZE THE RULE
EXCLUDING UNCONSTITUTIONALLY OBTAINED EVIDENCE ON THE GROUND THAT IT
'DOES NOT APPLY ANY DIRECT SANCTION TO THE INDIVIDUAL OFFICER WHOSE
ILLEGAL CONDUCT RESULTS IN THE EXCLUSION,' AND SO CANNOT 'DETER' HIM. 
BUT NO ONE, TO MY KNOWLEDGE, HAS EVER URGED THAT THE EXCLUSIONARY RULE
IS SUPPORTABLE ON THIS PRINCIPLE OF 'DETERRENCE.'  IT IS NOT SUPPOSED
TO 'DETER' IN THE FASHION OF THE LAW OF LARCENY, FOR EXAMPLE, BY
THREATENING PUNISHMENT TO HIM WHO STEALS A TELEVISION SET--A THEORY OF
DETERRENCE, BY THE WAY, WHOSE LACK OF EMPIRICAL JUSTIFICATION MAKES THE
EXCLUSIONARY RULE LOOK AS SOLID BY COMPARISON AS THE LAW OF GRAVITY." 

/17/ SEE ALSO OAKS 711: 

"' THE ACT IS BRANDED AS REPREHENSIBLE BY AUTHORIZED ORGANS OF
SOCIETY,' ANDENAES STATES, 'AND THIS OFFICIAL BRANDING OF THE CONDUCT
MAY INFLUENCE ATTITUDES QUITE APART FROM THE FEAR OF SANCTIONS.'  THE
EXISTENCE AND IMPOSITION OF A SANCTION REINFORCES THE RULE AND
UNDERLINES THE IMPORTANCE OF OBSERVING IT. THE PRINCIPLE IS DIRECTLY
APPLICABLE TO THE EXCLUSIONARY RULE.  THE SALIENT DEFECT IN THE RULE OF
WOLF V. COLORADO WAS THE DIFFICULTY OF PERSUADING ANYONE THAT THE
GUARANTEES OF THE FOURTH AMENDMENT WERE SERIOUSLY INTENDED AND
IMPORTANT WHEN THERE WAS NO SANCTION WHATEVER FOR THEIR VIOLATION.  AS
A VISIBLE EXPRESSION OF SOCIAL DISAPPROVAL FOR THE VIOLATION OF THESE
GUARANTEES, THE EXCLUSIONARY RULE MAKES THE GUARANTEES OF THE FOURTH
AMENDMENT CREDIBLE.  ITS EXAMPLE TEACHES THE IMPORTANCE ATTACHED TO
OBSERVING THEM." 

/18/ I ASSUME THAT THE COURT'S STATEMENT THAT "THE PURPOSE OF THE
EXCLUSIONARY RULE IS TO DETER UNLAWFUL POLICE CONDUCT," ANTE, AT 542,
DOES NOT IMPLY THAT DETERRENCE CAN WORK ONLY AT THE LEVEL OF THE
INDIVIDUAL OFFICERS ON THE SCENE, NOR SUGGEST THAT UNDER ITS APPROACH
ONLY THE KNOWLEDGE, REAL OR CONSTRUCTIVE, OF THE OFFICIAL CONDUCTING
THE SEARCH IS RELEVANT.  FOURTH AMENDMENT VIOLATIONS BECOME MORE, NOT
LESS, REPREHENSIBLE WHEN THEY ARE THE PRODUCT OF GOVERNMENT POLICY
RATHER THAN AN INDIVIDUAL POLICEMAN'S ERRORS OF JUDGMENT.  SEE ALDERMAN
V. UNITED STATES, 394 U.S., AT 203 (FORTAS, J., CONCURRING IN PART AND
DISSENTING IN PART). 

"(THE FOURTH AMENDMENT WAS INTENDED TO SECURE THE CITIZEN IN PERSON
AND PROPERTY AGAINST UNLAWFUL INVASION OF THE SANCTITY OF HIS HOME BY
OFFICERS OF THE LAW ACTING UNDER LEGISLATIVE OR JUDICIAL SANCTION. 
THIS PROTECTION IS EQUALLY EXTENDED TO THE ACTION OF THE GOVERNMENT AND
OFFICERS OF THE LAW ACTING UNDER IT...."  WEEKS V. UNITED STATES, 232
U.S. 383, 394 (1914).  (EMPHASIS SUPPLIED.)  OBVIOUSLY, ANY RULE
INTENDED TO PREVENT FOURTH AMENDMENT VIOLATIONS MUST OPERATE NOT ONLY
UPON INDIVIDUAL LAW ENFORCEMENT OFFICERS BUT ALSO UPON THOSE WHO SET
POLICY FOR THEM AND APPROVE THEIR ACTIONS.  OTHERWISE, FOR EXAMPLE,
EVIDENCE DERIVED FROM ANY SEARCH UNDER A WARRANT COULD BE ADMISSIBLE,
BECAUSE THE SEARCHING POLICEMAN, HAVING HAD A WARRANT APPROVED BY THE
DESIGNATED JUDICIAL OFFICER, HAD EVERY REASON TO BELIEVE THE WARRANT
VALID.  CERTAINLY, THE COURT CAN INTEND NO SUCH RESULT, AND WOULD HAVE
LOWER COURTS INQUIRE INTO THE FRAME OF MIND, ACTUAL AND CONSTRUCTIVE,
OF ALL OFFICIALS WHOSE ACTIONS WERE RELEVANT TO THE SEARCH. 

/19/ SEE SUPRA, AT 545, AND N. 2. 

/20/ IN ADDITION, ADDING "ONE MORE FACTFINDING OPERATION, AND AN
ESPECIALLY DIFFICULT ONE TO ADMINISTER, TO THOSE ALREADY REQUIRED OF
(THE) LOWER JUDICIARY" COULD ADD A FACTOR OF DISCRETION TO THE
OPERATION OF THE EXCLUSIONARY RULE IMPOSSIBLE FOR THE APPELLATE COURTS
EFFECTIVELY TO CONTROL.  KAPLAN, SUPRA, N.15, AT 1045. 

/21/ INDEED, CONGRESS IN RECENT YEARS HAS DECLINED TO TAKE STEPS
SOMEWHAT SIMILAR TO THOSE NOW PROPOSED.  SEE CANON, IS THE EXCLUSIONARY
RULE IN FAILING HEALTH?  SOME NEW DATA AND A PLEA AGAINST A PRECIPITOUS
CONCLUSION, 62 KY. L.J. 681, 694 - 696 (1974). 

/22/ FOR EXAMPLE, THE MODIFICATION OF THE EXCLUSIONARY RULE MOST
DISCUSSED RECENTLY HAS BEEN THAT IN THE ALI MODEL CODE OF PRE
ARRAIGNMENT PROCEDURE SEC. 290.2 (2) (PROP.  OFF.  DRAFT NO. 1, 1972). 
SEE BIVENS, 403 U.S., AT 424 (APPENDIX TO OPINION OF BURGER, C.J.,
DISSENTING); CANON, SUPRA, N. 21, AT 694 - 696.  WHILE THE ALI PROPOSAL
RAISES MANY OF THE SAME QUESTIONS I HAVE OUTLINED ABOVE, IT DIFFERS
SUBSTANTIALLY FROM THE COURT'S PROPOSED APPROACH, SINCE IT TAKES INTO
ACCOUNT MANY FACTORS BESIDES "(C) THE EXTENT TO WHICH THE VIOLATION WAS
WILLFUL." 

WILLIAM L. PATTON ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ACTING ASSISTANT ATTORNEY GENERAL
KEENEY, MARK L. EVANS, AND PETER M. SHANNON, JR. 

SANDOR W. SHAPERY, BY APPOINTMENT OF THE COURT, 419 U.S. 1044,
ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

(SANFORD JAY ROSEN FILED A BRIEF FOR THE MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND AS AMICUS CURIAE URGING AFFIRMANCE.) 
..END :









FAA ADMINSTRATOR V. ROBERTSON, 422 US 255 


       ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, ET AL. V.

           ROBERTSON, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

        NO. 74 - 450.  ARGUED APRIL 15, 1975--DECIDED JUNE 24,
1975,

        162 U.S.APP.  D.C. 298, 498 F.2D 1031, REVERSED. 


RESPONDENTS REQUESTED THE FEDERAL AVIATION ADMINISTRATION (FAA) TO
MAKE AVAILABLE SYSTEMS WORTHINESS ANALYSIS PROGRAM (SWAP) REPORTS WHICH
CONSIST OF THE FAA'S ANALYSES OF THE OPERATION AND MAINTENANCE
PERFORMANCE OF COMMERCIAL AIRLINES.  SECTION 1104 OF THE FEDERAL
AVIATION ACT OF 1958 PERMITS THE FAA ADMINISTRATOR, UPON RECEIVING AN
OBJECTION TO PUBLIC DISCLOSURE OF INFORMATION IN A REPORT, TO WITHHOLD
DISCLOSURE WHEN, IN HIS JUDGMENT, IT WOULD ADVERSELY AFFECT THE
OBJECTING PARTY'S INTEREST AND IS NOT REQUIRED IN THE PUBLIC'S
INTEREST.  THE ADMINISTRATOR DECLINED TO MAKE THE REPORTS AVAILABLE
UPON RECEIVING AN OBJECTION FROM THE AIR TRANSPORT ASSOCIATION, WHICH
CLAIMED THAT CONFIDENTIALITY WAS NECESSARY TO THE EFFECTIVENESS OF THE
PROGRAM.  RESPONDENTS SUED IN THE DISTRICT COURT SEEKING, INTER ALIA,
THE REQUESTED DOCUMENTS.  THE DISTRICT COURT HELD THAT THE DOCUMENTS
WERE "AS A MATTER OF LAW, PUBLIC AND NON-EXEMPT" WITHIN THE MEANING OF
THE FREEDOM OF INFORMATION ACT (FOIA).  THE COURT OF APPEALS AFFIRMED
THE JUDGMENT OF THE DISTRICT COURT "INSOFAR AS APPELLANTS RELY UPON
EXEMPTION (3)" OF THE FOIA.  HELD:  THE SWAP REPORTS ARE EXEMPT FROM
PUBLIC DISCLOSURE UNDER EXEMPTION 3 OF THE FOIA AS BEING "SPECIFICALLY
EXEMPTED FROM DISCLOSURE BY STATUTE."  PP. 261 - 267. 

(A) EXEMPTION 3 CONTAINS NO "BUILT-IN" STANDARD AS DO SOME OF THE
EXEMPTIONS UNDER THE FOIA AND THE LANGUAGE IS SUFFICIENTLY AMBIGUOUS TO
REQUIRE RESORT TO THE LEGISLATIVE HISTORY.  THAT HISTORY REVEALS THAT
CONGRESS WAS "AWARE OF THE NECESSITY TO DEAL EXPRESSLY WITH
INCONSISTENT LAWS," AND, AS INDICATED IN ITS COMMITTEE REPORT, DID NOT
INTEND, IN ENACTING THE FOIA, TO MODIFY THE NUMEROUS STATUTES "WHICH
RESTRICT PUBLIC ACCESS TO SPECIFIC GOVERNMENT RECORDS."  RESPONDENTS
CAN PREVAIL ONLY IF THE FOIA IS READ TO REPEAL BY IMPLICATION ALL SUCH
STATUTES.  TO INTERPRET "SPECIFIC" AS USED IN SUCH COMMITTEE REFERENCE
AS MEANING THAT EXEMPTION 3 APPLIES ONLY TO PRECISELY NAMED OR
DESCRIBED DOCUMENTS, WOULD BE ASKING CONGRESS TO PERFORM AN IMPOSSIBLE
TASK AND WOULD IMPLY THAT CONGRESS HAD UNDERTAKEN TO REASSESS EVERY
DELEGATION OF AUTHORITY TO WITHHOLD INFORMATION THAT IT HAD MADE BEFORE
THE PASSAGE OF THE FOIA IN 1966, A TASK THAT THE LEGISLATIVE HISTORY
CLEARLY SHOWS IT DID NOT UNDERTAKE.  PP. 261 - 266. 

(B) THE BROAD DISCRETION VESTED BY CONGRESS IN THE FAA UNDER SEC.
1104 TO WITHHOLD INFORMATION FROM THE PUBLIC IS NOT NECESSARILY
INCONSISTENT WITH CONGRESS' INTENT IN ENACTING THE FOIA TO REPLACE THE
BROAD STANDARD OF THE PUBLIC DISCLOSURE SECTION OF THE ADMINISTRATIVE
PROCEDURE ACT.  CONGRESS COULD APPROPRIATELY CONCLUDE THAT THE PUBLIC
INTEREST IN AIR TRANSPORT SAFETY WAS BETTER SERVED BY GUARANTEEING
CONFIDENTIALITY OF INFORMATION NECESSARY TO SECURE FROM THE AIRLINES
THE MAXIMUM AMOUNT OF INFORMATION RELEVANT TO SAFETY, AND CONGRESS'
WISDOM IN STRIKING SUCH A BALANCE IS NOT OPEN TO JUDICIAL SCRUTINY. 
PP. 266 - 267. 

BERGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED, STEWART, J., FILED AN
OPINION CONCURRING IN THE JUDGMENT, IN WHICH MARSHALL, J., JOINED,
POST, P. 268.  DOUGLAS AND BRENNAN, JJ., FILED A DISSENTING STATEMENT,
POST, P. 268. 

MR. CHIEF JUSTICE BERGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI /1/ IN THIS CASE IN ORDER TO DETERMINE WHETHER
EXEMPTION 3 OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. SEC. 552(B)(3),
/2/ PERMITS NONDISCLOSURE TO RESPONDENTS OF CERTAIN REPORTS IN THE
FILES OF THE FEDERAL AVIATION ADMINISTRATION.  THIS EXEMPTION PROVIDES
THAT MATERIAL NEED NOT BE DISCLOSED IF "SPECIFICALLY EXEMPTED FROM
DISCLOSURE BY STATUTE."  THE REPORTS ARE KNOWN AS SYSTEMS WORTHINESS
ANALYSIS PROGRAM (SWAP) REPORTS.  /3/ THEY CONSIST OF ANALYSES MADE BY
REPRESENTATIVES OF THE FAA CONCERNING THE OPERATION AND MAINTENANCE
PERFORMANCE OF COMMERCIAL AIRLINES.  OVERSIGHT AND REGULATION OF AIR
TRAVEL SAFETY IS THE RESPONSIBILITY OF THE FAA, SEC. 601 OF THE FEDERAL
AVIATION ACT OF 1958, 72 STAT. 775, AS AMENDED, 49 U.S.C. SEC. 1421. 
THE FAA CLAIMS THE DOCUMENTS ARE PROTECTED FROM DISCLOSURE BY VIRTUE OF
SEC. 1104 OF THE FEDERAL AVIATION ACT OF 1958, 49 U.S.C. SEC. 1504. 
/4/ 

THE FACTS OF THE CASE, IN ITS PRESENT POSTURE, /5/ ARE QUITE
SIMPLE.  DURING THE SUMMER OF 1970, IN CONNECTION WITH A STUDY OF
AIRLINE SAFETY BEING CONDUCTED BY THEM, THE RESPONDENTS, ASSOCIATED
WITH THE CENTER FOR THE STUDY OF RESPONSIVE LAW, REQUESTED THAT THE FAA
MAKE AVAILABLE CERTAIN SWAP REPORTS.  THE FAA DECLINED TO PRODUCE THE
DOCUMENTS.  IN ACCORDANCE WITH ESTABLISHED PROCEDURES ADOPTED BY THE
FAA, THE RESPONDENTS THEN FILED TIMELY NOTICE OF ADMINISTRATIVE APPEAL
IN AUGUST 1970.  SEVERAL MONTHS LATER, WHILE THIS ADMINISTRATIVE APPEAL
WAS PENDING, THE AIR TRANSPORT ASSOCIATION, ON BEHALF OF ITS AIRLINE
MEMBERS, REQUESTED THAT THE FAA MAKE NO PUBLIC DISCLOSURE OF THE SWAP
REPORTS.  THE ASSOCIATION NOTED THAT, IN A PRIOR MEMORANDUM OF ITS OWN
STAFF, THE FAA HAD POINTED OUT THAT "'(THE SWAP PROGRAM REQUIRES A
COOPERATIVE EFFORT ON BOTH THE PART OF THE COMPANY AND FAA IF IT IS TO
WORK EFFECTIVELY,'" AND ARGUED THAT "(THE PRESENT PRACTICE OF NON
PUBLIC SUBMISSIONS, WHICH INCLUDES EVEN TENTATIVE FINDINGS AND OPINIONS
AS WELL AS CERTAIN FACTUAL MATERIAL, ENCOURAGES A SPIRIT OF OPENNESS ON
THE PART OF AIRLINE MANAGEMENT WHICH IS VITAL TO THE PROMOTION OF
AVIATION SAFETY--THE PARAMOUNT CONSIDERATION OF AIRLINES AND GOVERNMENT
ALIKE IN THIS AREA."  IN FEBRUARY 1971, THE FAA FORMALLY DENIED
RESPONDENTS' REQUEST FOR THE SWAP REPORTS.  IT TOOK THE POSITION THAT
THE REPORTS ARE EXEMPT FROM PUBLIC DISCLOSURE UNDER 5 U.S.C. SEC. 552
(B)(3), THE SECTION AT ISSUE HERE.  THAT SECTION PROVIDES SUCH MATERIAL
NEED NOT BE DISCLOSED UNDER THE FREEDOM OF INFORMATION ACT WHEN THE
MATERIAL IS SPECIFICALLY EXEMPTED FROM DISCLOSURE BY STATUTE.  THE FAA
NOTED THAT SEC. 1104 OF THE FEDERAL AVIATION ACT OF 1958, 49 U.S.C.
SEC. 1504, PERMITS THE ADMINISTRATOR TO WITHHOLD INFORMATION PUBLIC
DISCLOSURE OF WHICH, IN HIS JUDGMENT, WOULD ADVERSELY AFFECT THE
INTERESTS OF THE OBJECTING PARTY AND IS NOT REQUIRED TO BE DISCLOSED IN
THE INTEREST OF THE PUBLIC.  THE FAA ALSO BASED ITS DENIAL OF THESE
DATA ON THE EXEMPTION FOR INTRA-AGENCY MEMORANDA (5 U.S.C. SEC. 552 (B)
(5)), THE EXEMPTION FOR INVESTIGATORY FILES COMPILED FOR LAW
ENFORCEMENT PURPOSES (SEC. 552 (B)(7)), AND, FINALLY, THE EXEMPTION FOR
DOCUMENTATION CONTAINING TRADE SECRETS AND COMMERCIAL OR FINANCIAL
INFORMATION OF A PRIVILEGED OR CONFIDENTIAL NATURE (SEC. 552 (B)(4)). 
THE FAA'S ANSWER ALSO EXPLAINED ITS VIEW OF THE NEED FOR
CONFIDENTIALITY IN SWAP REPORTS: 

" THE EFFECTIVENESS OF THE IN-DEPTH ANALYSIS THAT IS THE ESSENCE OF
SWAP TEAM INVESTIGATION DEPENDS, TO A GREAT EXTENT, UPON THE FULL,
FRANK AND OPEN COOPERATION OF THE OPERATOR HIMSELF DURING THE
INSPECTION PERIOD.  ##HC260 HIS ASSURANCE BY THE FAA THAT THE RESULTING
RECOMMENDATIONS ARE IN THE INTEREST OF SAFETY AND OPERATIONAL
EFFICIENCY AND WILL NOT BE DISCLOSED TO THE PUBLIC ARE THE MAJOR
INCENTIVES IMPELLING THE OPERATOR TO HIDE NOTHING AND TO GRANT FREE
ACCESS TO PROCEDURES, SYSTEM OF OPERATION, FACILITIES, PERSONNEL, AS
WELL AS MANAGEMENT AND OPERATIONAL RECORDS IN ORDER TO EXHIBIT HIS
NORMAL COURSE OF OPERATIONS TO THE SWAP INSPECTORS." 

RESPONDENTS THEN SUED IN THE DISTRICT COURT, SEEKING, INTER ALIA,
THE REQUESTED DOCUMENTS.  THE DISTRICT COURT HELD THAT "THE DOCUMENTS
SOUGHT BY PLAINTIFFS . . . ARE, AS A MATTER OF LAW, PUBLIC AND NON
EXEMPT WITHIN THE MEANING OF 5 U.S.C. (SEC.) 552, AND PLAINTIFFS ARE
ENTITLED TO JUDGMENT . . . AS A MATTER OF LAW." 

A DIVIDED COURT OF APPEALS AFFIRMED THE JUDGMENT OF THE DISTRICT
COURT "INSOFAR AS APPELLANTS RELY UPON EXEMPTION (3)," BUT REMANDED THE
CASE FOR CONSIDERATION OF OTHER EXEMPTIONS WHICH THE FEDERAL AVIATION
ADMINISTRATION MIGHT WISH TO ASSERT.  162 U.S.APP.  D.C. 298, 498 F.2D
1031 (1974).  EXAMINING FIRST WHAT IT FELT WAS THE ORDINARY MEANING OF
THE LANGUAGE OF EXEMPTION 3, THE COURT OF APPEALS HELD THAT ITS
LANGUAGE REQUIRED THE EXEMPTING STATUTE RELIED ON TO SPECIFY OR
CATEGORIZE THE PARTICULAR DOCUMENTS IT AUTHORIZES TO BE WITHHELD. 
BECAUSE SEC. 1104 DELEGATED "BROAD DISCRETIONARY AUTHORITY" UNDER A
"PUBLIC INTEREST" STANDARD, IT WAS HELD NOT WITHIN THE SCOPE OF
EXEMPTION 3.  THE COURT OF APPEALS DISTINGUISHED THIS COURT'S DECISION
IN ENVIRONMENTAL PROTECTION AGENCY V. MINK, 410 U.S. 73 (1973), ON THE
GROUND THAT THE EXEMPTION INVOLVED IN THAT CASE WAS CONSTRUED TO BE A
SPECIFIC REFERENCE BY CONGRESS TO A DEFINITE CLASS OF DOCUMENTS, NAMELY
THOSE THAT MUST BE KEPT SECRET "'IN THE INTEREST OF THE NATIONAL
DEFENSE OR FOREIGN POLICY,'" 162 U.S.APP.  D.C., AT 300, 498 F.2D, AT
1033.  THE COURT OF APPEALS READ THE ACT AS PROVIDING A COMPREHENSIVE
GUIDE TO CONGRESSIONAL INTENT.  ONE OF THE ACT'S MAJOR PURPOSES WAS
SEEN AS INTENDING TO ELIMINATE WHAT IT CHARACTERIZED AS VAGUE PHRASES
SUCH AS "IN THE PUBLIC INTEREST" OR "FOR GOOD CAUSE" AS A BASIS FOR
WITHHOLDING INFORMATION.  UNDER THESE CIRCUMATANCES, THE COURT
CONCLUDED THAT SEC. 1104 CANNOT BE CONSIDERED A SPECIFIC EXEMPTION BY
STATUTE WITHIN THE MEANING OF EXEMPTION 3 OF THE FREEDOM OF INFORMATION
ACT. 

THIS CASE INVOLVES NO CONSTITUTIONALCLAIMS, NO ISSUES REGARDING THE
NATURE OR SCOPE OF "EXECUTIVE PRIVILEGE," BUT SIMPLY THE SCOPE AND
MEANING OF ONE OF THE EXEMPTIONS OF THE FREEDOM OF INFORMATION ACT, 5
U.S.C. SEC. 552.  ENVIRONMENTAL PROTECTION AGENCY V. MINK, SUPRA, AT 94
(STEWART, J., CONCURRING).  THE ACT HAS TWO ASPECTS.  IN ONE, IT SEEKS
TO OPEN PUBLIC RECORDS TO GREATER PUBLIC ACCESS; IN THE OTHER, IT SEEKS
TO PRESERVE THE CONFIDENTIALITY UNDENIABLY ESSENTIAL IN CERTAIN AREAS
OF GOVERNMENT OPERATIONS.  IT IS AXIOMATIC THAT ALL PARTS OF AND ACT
"IF AT ALL POSIBLE, ARE TO BE GIVEN EFFECT."  WEINBERGER V. HYNSON,
WESTCOTT & DUNNING, 412 U.S. 609, 633 (1973).  ACCORD, KOKOSZKA V.
BELFORD, 417 U.S. 642, 650 (1974). 

WE HAVE CONSTRUED THE FREEDOM OF INFORMATION ACT RECENTLY IN NLRB V.
SEARS, ROEBUCK & CO., 421 U.S. 132 (1975); RENEGOTIATION BOARD V.
GRUMMAN AIRCRAFT ENGINEERING CORP., 421 U.S. 168 (1975); RENEGOTIATION
BOARD V. BANNERCRAFT CLOTHING CO., 415 U.S. 1 (1974); ENVIRONMENTAL
PROTECTION AGENCY V. MINK, SUPRA.  IN MINK, THE COURT SET OUT THE
GENERAL NATURE AND PURPOSE OF THE ACT, RECOGNIZING, AS DID THE SENATE
COMMITTEE REPORT, THAT IT IS NOT "'AN EASY TASK TO BALANCE THE OPPOSING
INTERESTS . . .'"  AND "'PROVIDE) A WORKABLE FORMULA WHICH ENCOMPASSES,
BALANCES, AND PROTECTS ALL INTERESTS . . . .'"  410 U.S., AT 80,
QUOTING FROM S.REP.  NO. 813, 89TH CONG., 1ST SESS., 3 (1965).  NOTHING
IN THE ACT OR ITS LEGISLATIVE HISTORY GIVES ANY INTIMATION THAT ALL
INFORMATION IN ALL AGENCIES AND IN ALL CIRCUMSTANCES IS TO BE OPEN TO
PUBLIC INSPECTION.  BECAUSE IT CONSIDERED THE PUBLIC DISCLOSURE SECTION
OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 238, 5 U.S.C. SEC. 1002
(1964 ED.), INADEQUATE, CONGRESS SOUGHT TO PERMIT ACCESS TO CERTAIN
KINDS OF OFFICIAL INFORMATION WHICH IT THOUGHT HAD UNNECESSARILY BEEN
WITHHELD AND, BY THE CREATION OF NINE EXPLICITLY EXCLUSIVE EXEMPTIONS,
TO PROVIDE A MORE WORKABLE AND BALANCED FORMULA THAT WOULD AVAILABLE
INFORMATION THAT OUGHT TO BE PUBLIC AND, AT THE SAME TIME, PROTECT
CERTAIN INFORMATION WHERE CONFIDENTIALITY WAS NECESSARY TO PROTECT
LEGITIMATE GOVERNMENTAL FUNCTIONS THAT WOULD BE IMPAIRED BY
DISCLOSURE.  THE EXEMPTIONS PROVIDED BY THE ACT, ONE OF WHICH WE DEAL
WITH HERE, REPRESENT THE CONGRESSIONAL JUDGMENT AS TO CERTAIN KINDS OF
"INFORMATION THAT THE EXECUTIVE BRANCH MUST HAVE THE OPTION TO KEEP
CONFIDENTIAL, IF IT SO CHOOSES," 410 U.S., AT 80.  THE LANGUAGE OF
EXEMPTION 3 CONTAINS NO "BUILT-IN" STANDARD AS IN THE CASE OF SOME OF
THE OTHER EXEMPTIONS.  THE VARIETY OF CONSTRUCTIONS GIVEN ITS LANGUAGE
BY THE COURTS OF APPEALS, /6/ IS AMPLE EVIDENCE THAT THE RELEVANT
PORTIONS OF THE EXEMPTION ARE UNCLEAR AND AMBIGUOUS, COMPELLING RESORT
TO THE LEGISLATIVE HISTORY.  SEE UNITED STATES V. DONRUSS CO., 393 U.S.
297, 303 (1969).  CF. UNITED STATES V. OREGON, 366 U.S. 643, 648
(1961). 

THAT HISTORY MUST BE READ IN LIGHT OF THE LEGISLATION IN EXISTENCE
WHEN THE ACT WAS PASSED; THAT HISTORY REVEALS "CLEAR EVIDENCE THAT
CONGRESS WAS AWARE OF THE NECESSITY TO DEAL EXPRESSLY WITH INCONSISTENT
LAWS."  REGIONAL RAIL REORGANIZATION ACT CASES, 419 U.S. 102, 129
(1974).  CONGRESS WAS GWARE, AS IT UNDERTOOK A PAINSTAKING REVIEW,
DURING SEVERAL SESSIONS, OF THE RIGHT OF THE PUBLIC TO INFORMATION
CONCERNING THE PUBLIC BUSINESS; IT WAS AWARE THAT IT WAS ACTING NOT
ONLY AGAINST THE BACKDROP OF THE 1946 ADMINISTRATIVE PROCEDURE ACT,
SUPRA, BUT ALSO ON THE BASIS OF A SIGNIFICANT NUMBER OF EARLIER
CONGRESSIONAL DECISIONS THAT CONFIDENTIALITY WAS ESSENTIAL IN CERTAIN
DEPARTMENTS AND AGENCIES IN ORDER TO PROTECT THE PUBLIC INTEREST.  NO
DISTINCTION SEEMS TO HAVE BEEN MADE ON THE BASIS OF THE STANDARDS
ARTICULATED IN THE EXEMPTING STATUTE OR ON THE DEGREE OF DISCRETION
WHICH IT VESTED IN A PARTICULAR GOVERNMENT OFFICER.  WHEN THE CONTINUED
VITALITY OF THESE SPECIALIZED EXEMPTING STATUTES WAS RAISED BY THE
VIEWS OF VARIOUS AGENCIES, /7/ THE MEMBERS OF THE COMMITTEE
CONSISTENTLY EXPRESSED THE CLEAR INTENTION THAT THESE STATUTES WOULD
REMAIN UNAFFECTED BY THE NEW ACT.  DURING THE 1963 HEARINGS, FOR
EXAMPLE, SENATOR LONG, CHAIRMAN OF THE SENATE SUBCOMMITTEE STATED:  "
IT SHOULD BE MADE CLEAR THAT THIS BILL IN NO WAY LIMITS STATUTES
SPECIFICALLY WRITTEN WITH THE CONGRESSIONAL INTENT OF CURTAILING THE
FLOW OF INFORMATION AS A SUPPLEMENT NECESSARY TO THE PROPER FUNCTIONING
OF CERTAIN AGENCIES."  /8/ INDEED, SOME PROVISIONS /9/ OF BILLS WHICH
WERE NOT ENACTED COULD WELL HAVE BEEN CONSTRUED AS REPEALING ALL
EARLIER LEGISLATION, /10/ BUT SUCH PROVISIONS WERE NOT INCLUDED IN THE
BILL THAT WAS FINALLY ENACTED.  MORE SPECIFICALLY, WHEN THE CIVIL
AERONAUTICS BOARD BROUGHT SEC. 1104 TO THE ATTENTION OF BOTH THE HOUSE
AND SENATE HEARINGS OF 1965, AND EXPRESSED THE AGENCY INTERPRETATION
THAT THE PROVISION WAS ENCOMPASSED WITHIN EXEMPTION 3, /11/ NO QUESTION
WAS RAISED OR CHALLENGE MADE TO THE AGENCY VIEW OF THE IMPACT OF THAT
EXEMPTION.  WHEN THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS FOCUSED
ON EXEMPTION 3, IT TOOK NOTE THAT THERE ARE "NEARLY 100 STATUTES OR
PARTS OF STATUTES WHICH RESTRICT PUBLIC ACCESS TO SPECIFIC GOVERNMENT
RECORDS.  THESE WOULD NOT BE MODIFIED BY THE PUBLIC RECORDS PROVISIONS
OF S. 1160."  H.R.REP.  NO. 1497, 89TH CONG., 2D SESS., 10 (1966). 
(EMPHASIS ADDED.) 

THE RESPONDENTS CAN PREVAIL ONLY IF THE ACT IS TO BE READ AS
REPEALING BY IMPLICATION ALL EXISTING STATUTES "WHICH RESTRICT PUBLIC
ACCESS TO SPECIFIC GOVERNMENT RECORDS."  IBID.  THE TERM "SPECIFIC" AS
THERE USED CANNOT BE READ AS MEANING THAT THE EXEMPTION APPLIES ONLY TO
DOCUMENTS SPECIFIED, I. E., BY NAMING THEM PRECISELY OR BY DESCRIBING
THE CATEGORY IN WHICH THEY FALL.  TO REQUIRE THIS INTERPRETATION WOULD
BE TO ASK OF CONGRESS A VIRTUALLY IMPOSSIBLE TASK.  SUCH A CONSTRUCTION
WOULD ALSO IMPLY THAT CONGRESS HAD UNDERTAKEN TO REASSESS EVERY
DELEGATION OF AUTHORITY TO WITHHOLD INFORMATION WHICH IT HAD MADE
BEFORE THE PASSAGE OF THIS LEGISLATION--A TASK WHICH THE LEGISLATIVE
HISTORY SHOWS IT CLEARLY DID NOT UNDERTAKE. 

EARLIER THIS TERM, MR. JUSTICE BRENNAN, SPEAKING FOR THE COURT IN
THE REGIONAL RAIL REORGANIZATION ACT CASES, SUPRA, NOTED THAT "REPEALS
BY IMPLICATION ARE DISFAVORED," 419 U.S., AT 133, AND THAT, WHEN COURTS
ARE CONFRONTED WITH STATUTES "'CAPABLE OF CO-EXISTENCE, IT IS THE DUTY
OF THE CORUTS, ABSENT A CLEARLY EXPRESSED CONGRESSIONAL INTENTION TO
THE CONTRARY, TO REGARD EACH AS EFFECTIVE.'"  ID., AT 133 - 134,
QUOTING MORTON V. MANCARI, 417 U.S. 535, 551 (1974).  AS WE HAVE NOTED,
HERE, AS IN THE REGIONAL RAIL REORGANIZATION ACT CASES, SUPRA, THERE IS
"CLEAR EVIDENCE THAT CONGRESS WAS AWARE OF THE NECESSITY TO DEAL
EXPRESSLY WITH INCONSISTENT LAWS," 419 U.S., AT 129.  TO SPELL OUT
REPEAL BY IMPLICATION OF A MULTITUDE OF STATUTES ENACTED OVER A LONG
PERIOD OF TIME, EACH OF WHICH WAS SEPARATELY WEIGHED AND CONSIDERED BY
CONGRESS TO MEET AN IDENTIFIED NEED, WOULD BE A MORE UNREASONABLE STEP
BY A COURT THAN TO DO SO WITH RESPECT TO A SINGLE STATUTE SUCH AS WAS
INVOLVED IN THE REGIONAL RAIL REORGANIZATION ACT CASES, SUPRA.
CONGRESS' RESPONSE WAS TO PERMIT THE NUMEROUS LAWS THEN EXTANT ALLOWING
CONFIDENTIALITY TO STAND; IT IS NOT FOR US TO OVERRIDE THAT LEGISLATIVE
CHOICE.     THE DISCRETION VESTED BY CONGRESS IN THE FAA, IN BOTH ITS
NATURE AND SCOPE, IS BROAD.  THERE IS NOT, HOWEVER, ANY INEVITABLE
INCONSISTENCY BETWEEN THE GENERAL CONGRESSIONAL INTENT TO REPLACE THE
BROAD STANDARD OF THE FORMER ADMINISTRATIVE PROCEDURE ACT AND ITS
INTENT TO PRESERVE, FOR AIR TRANSPORT REGULATION, A BROAD DEGREE OF
DISCRETION ON WHAT INFORMATION IS TO BE PROTECTED IN THE PUBLIC
INTEREST IN ORDER TO INSURE CONTINUING ACCESS TO THE SOURCES OF
SENSITIVE INFORMATION NECESSARY TO THE REGULATION OF AIR TRANSPORT. 
CONGRESS COULD NOT REASONABLY ANTICIPATE EVERY SITUATION IN WHICH THE
BALANCE MUST TIP IN FAVOR OF NONDISCLOSURE AS A MEANS OF INSURING THAT
THE PRIMARY, OR INDEED SOLE, SOURCE OF ESSENTIAL INFORMATION WOULD
CONTINUE TO VOLUNTEER INFORMATION NEEDED TO DEVELOP AND MAINTAIN SAFETY
STANDARDS.  THE PUBLIC INTEREST IS SERVED BY ASSURING A FREE FLOW OF
RELEVANT INFORMATION TO THE REGULATORY AUTHORITIES FROM THE AIRLINES. 
CONGRESS COULD APPROPRIATELY CONCLUDE THAT THE PUBLIC INTEREST WAS
BETTER SEVED BY GUARANTEEING CONFIDENTIALITY IN ORDER TO SECURE THE
MAXIMUM AMOUNT OF INFORMATION RELEVANT TO SAFETY.  THE WISDOM OF THE
BALANCE STRUCK BY CONGRESS IS NOT OPEN TO JUDICIAL SCRUTINY. 

IT WAS INESCAPABLE THAT SOME REGULATORY AUTHORITIES BE VESTED WITH
BROAD, FLEXIBLE DISCRETION, THE EXERCISE OF WHICH WAS MADE SUBJECT TO
CONTINUING SCRUTING BY CONGRESS.  FOLLOWING PASSAGE OF THE ACT, "(G)
ENERAL OVERSIGHT INTO THE ADMINISTRATION OF THE FREEDOM OF INFORMATIONS
ACT (WAS) EXERCISED BY THE (HOUSE) FOREIGN OPERATIONS AND GOVERNMENT
INFORMATION SUBCOMMITTEE AND THE SENATE SUBCOMMITTEE ON ADMINISTRATIVE
PRACTICE AND PROCEDURE."  H.R.REP.  NO. 92 - 1419, PP. 3 - 4 (1972). 
IT IS NOT INSIGNIFICANT THAT THIS OVERALL SCRUTINY OF THE ACT IN 1972
BROUGHT NO CHANGE IN EXEMPTION 3.  INDEED, WHEN CONGRESS AMENDED THE
FREEDOM OF INFORMATION ACT IN 1974, IT REAFFIRMED THE CONTINUED
VITALITY OF THIS PARTICULAR EXEMPTION, COVERING STATUTES VESTING IN THE
AGENCIES WIDE AUTHORITY.  S.CONF.  REP. NO. 93 - 1200, P. 12 (1974);
H.R.CONF.  REP.  NO. 93 - 1380, P. 12 (1974). 

MOREOVER, CONGRESS AMENDED THE ACT IN 1974 TO REQUIRE THAT ALL
AGENCIES SUBMIT TO EACH HOUSE, ON AN ANNUAL BASIS, "THE NUMBER OF
DETERMINATIONS MADE BY SUCH AGENCY NOT TO COMPLY WITH REQUESTS FOR
RECORDS.  . .  AND THE REASONS FOR EACH SUCH DETERMINATION."  PUB.  L.
93 - 502, 88 STAT. 1564, 5 U.S.C.A. SEC. 552 (D) (1) (FEB. 1975
SUPP.).  IN LIGHT OF THIS CONTINUING CLOSE SCRUTING, WE ARE BOUND TO
ASSUME THAT CONGRESS EXERCISED AN INFORMED JUDGMENT AS TO THE NEEDS OF
THE FAA AND THAT IT WAS PERSUADED AS TO THE NECESSITY, AT LEAST OF THE
PRACTICAL COMPATIBILITY, OF BOTH STATUTES. 

                REVERSED. 

/1/ 419 U.S. 1067 (1974). 

/2/ THE ACT WAS AMENDED IN 1974, PUB. L. 93 - 502, 88 STAT. 1561, TO
READ IN PERTINENT PART: 

"(A) EACH AGENCY SHALL MAKE AVAILABLE TO THE PUBLIC INFORMATION AS
FOLLOWS:

* * * * * 

"(3) EXCEPT WITH RESPECT TO THE RECORDS MADE AVAILABLE UNDER
PARAGRAPHS (1) AND (2) OF THIS SUBSECTION, EACH AGENCY, UPON ANY
REQUEST FOR RECORDS WHICH (A) REASONABLY DESCRIBES SUCH RECORDS AND (B)
IS MADE IN ACCORDANCE WITH PUBLISHED RULES STATING THE TIME, PLACE,
FEES (IF ANY), AND PROCEDURES TO BE FOLLOWED, SHALL MAKE THE RECORDS
PROMPTLY AVAILABLE TO ANY PERSON."  5 U.S.C.A. SEC. 552 (A) (3) (FEB.
1975 SUPP.). 

EXEMPTION 3, WHICH WAS NOT AMENDED IN 1974, IS PROVIDED BY 5 U.S.C.
SEC. 552 (B) (3), WHICH READS AS FOLLOWS: 

"(B) THIS SECTION DOES NOT APPLY TO MATTERS THAT ARE

        * * * * * 

"(3) SPECIFICALLY EXEMPTED FROM DISCLOSURE BY STATUTE." 

PRIOR TO THE 1974 AMENDMENTS, SEC. 552 (A) (3) READ, IN PERTINENT
PART:  " EXCEPT WITH RESPECT TO THE RECORDS MADE AVAILABLE UNDER
PARAGRAPHS (1) AND (2) OF THIS SUBSECTION, EACH AGENCY, ON REQUEST FOR
IDENTIFIABLE RECORDS MADE IN ACCORDANCE WITH PUBLISHED RULES STATING
THE TIME, PLACE, FEES TO THE EXTENT AUTHORIZED BY STATUTE, AND
PROCEDURE TO BE FOLLOWED, SHALL MAKE THE RECORDS PROMPTLY AVAILABLE TO
ANY PERSON.  . . ."  5 U.S.C. SEC. 552 (A) (3). 

/3/ THE SWAP PROGRAM IS SET FORTH IN THE FEDERAL AVIATION
ADMINISTRATION'S SYSTEMWORTHINESS ANALYSIS PROGRAM HANDBOOK, 8000.3B
(REPRINTED NOV. 1970) (APP. 44 - 111).  A REVISED VERSION OF THE SWAP
HANDBOOK IS CONTAINED IN FAA ORDER 8000.3 C, APR. 14, 1972.  (WITH
SUBSEQUENT CHANGES.)  SEE ALSO AFFIDAVIT OF FAA ADMINISTRATOR SHAFFER,
APP. 40. 

/4/ SECTION 1104 PROVIDES: 

" ANY PERSON MAY MAKE WRITTEN OBJECTION TO THE PUBLIC DISCLOSURE OF
INFORMATION CONTAINED IN ANY APPLICATION, REPORT, OR DOCUMENT FILED
PURSUANT TO THE PROVISIONS OF THIS CHAPTER OR OF INFORMATION OBTAINED
BY THE BOARD OR THE ADMINISTRATOR, PURSUANT TO THE PROVISIONS OF THIS
CHAPTER, STATING THE GROUNDS FOR SUCH OBJECTION.  WHENEVER SUCH
OBJECTION IS MADE, THE BOARD OR ADMINISTRATOR SHALL ORDER SUCH
INFORMATION WITHHELD FROM PUBLIC DISCLOSURE WHEN, IN THEIR JUDGMENT, A
DISCLOSURE OF SUCH INFORMATION WOULD ADVERSELY AFFECT THE INTERESTS OF
SUCH PERSON AND IS NOT REQUIRED IN THE INTEREST OF THE PUBLIC.  THE
BOARD OF ADMINISTRATOR SHALL BE RESPONSIBLE FOR CLASSIFIED INFORMATION
IN ACCORDANCE WITH APPROPRIATE LAW:  PROVIDED, THAT NOTHING IN THIS
ADMINISTRATOR FROM THE DULY AUTHORIZED COMMITTEES OF THE CONGRESS." 

/5/ THE RESPONDENTS HAD ALSO SOUGHT DISCLOSURE OF MECHANICAL
RELIABILITY REPORTS, WHICH ARE DAILY REPORTS OF MECHANICAL MALFUNCTIONS
SUBMITTED TO THE FAA BY THE AIRCRAFT COMPANIES.  ON JANUARY 11, 1972,
THE ADMINISTRATOR DETERMINED THAT HE WOULD PERMIT THE DISCLOSURE OF
SUCH DOCUMENTS RECEIVED AFTER APRIL 18, 1972.  THE DISTRICT COURT'S
SUBSEQUENT ORDER IN THIS CASE, ON NOVEMBER 8, 1972, ORDERED DISCLOSURE
OF THESE DOCUMENTS RECEIVED PRIOR TO THAT DATE.  THE ADMINISTRATOR HAS
NOT CONTESTED THIS ASPECT OF THE DISTRICT COURT'S ORDER EITHER ON
APPEAL TO THE COURT OF APPEALS OR IN HIS PETITION FOR WRIT OF
CERTIORARI TO THIS COURT. 

/6/ IN EVANS V. DEPARTMENT OF TRANSPORTATION, 446 F.2D 821 (CA5
1971), THE COURT HELD THAT 49 U.S.C. SEC. 1504, THE FAA STATUTE IN
QUESTION HERE, WAS WITHIN THE SCOPE OF EXEMPTION 3.  446 F.2D, AT 824. 
THE SAME COURT OF APPEALS, HOWEVER, IN AN UNPUBLISHED OPINION, SERCHUK
V. WEINBERGER, AFFIRMANCE REPORTED AT 493 F.2D 663 (1974), FOLLOWED THE
THIRD CIRCUIT IN STETCH V. WEINBERGER, 495 F.2D 639 (1974), IN HOLDING
THAT 53 STAT. 1398, AS AMENDED, 42 U.S.C. SEC. 1306 (A)--REQUIRING THE
CONFIDENTIALITY OF ALL MATERIAL OBTAINED BY THE SECERTARY OF HEALTH,
EDUCATION, AND WELFARE "EXCEPT AS THE SECRETARY . . . MAY BY
REGULATIONS PRESCRIBE"--WAS NOT WITHIN THE SCOPE OF EXEMTION 3 BECAUSE
IT NEITHER "IDENTIFIES SOME CLASS OR CATEGORY OF ITEMS THAT CONGRESS
CONSIDERS APPROPRIATE FOR EXEMPTION," 495 F.2D, AT 640, NOR AT LEAST
"SETS OUT LEGISLATIVELY PRESCRIBED STANDARDS OF GUIDELINES THAT THE
SECRETARY MUST FOLLOW IN DETERMINING WHAT MATTER SHALL BE EXEMPTED FROM
DISCLOSURE."  IBID.  ACCORD, SCHECHTER V. WINBERGER,--U.S.APP.  D.C.--,
506 F.2D 1275, 1277 (1974) (MAC KINNON, J., DISSENTING) (CITING HIS
PRIOR DISSENTING OPINION IN THE SAME CASE, 162 U.S.APP.  D.C. 282, 498
F.2D 1015 (1974).  IN CALIFORNIA V. WEINBERGER, 505 F.2D 767 (1974)$,
THE NINTH CIRCUIT REACHED A CONTRARY RESULT IN REGARD TO 42 U.S.C. SEC.
1306 (A) ON THE GROUND THAT THE GENERAL NONDISCLOSURE MANDATE
CONSTITUTED "WORDS OF CONGRESSIONAL EXEMPTION," 505 F.2D, AT 768, AND
THUS THE MATERIAL WAS "SPECIFICIALLY EXEMPTED . . . BY STATUTE."  THE
SECRETARY MERELY HAD THE AUTHORITY "TO RELAX THE ABSOLUTE PROHIBITION
ESTABLISHED BY CONGRESS."  IBID.  CF. SEARS V. GOTTSCHALK, 502 F.2D 122
(CA4 1974), FINDING SUFFICIENT SPECIFICITY IN THE TERM "(APPLICATIONS
FOR PATENTS" OF 35 U.S.C. SEC. 122 AND IN RULES 14 (A) AND (B) OF THE
PATENT OFFICE TO SATISFY EVEN THE OBJECTIONS OF THE STRETCH COURT AND
TO BRING 35 U.S.C. SEC. 122 WITHIN THE SCOPE OF EXEMPTION 3. 

/7/ NOTE, COMMENTS ON PROPOSED AMENDMENTS TO SECTION 3 OF THE
ADMINISTRATIVE PROCEDURE ACT:  THE FREEDOM OF INFORMATION BILL, 40
NOTRE DAME LAW.  417, 453 N. 254 (1965). 

/8/ HEARINGS ON S. 1666 BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE
PRACTICE AND PROCEDURE OF THE SENATE COMMITTEE ON THE JUDICIARY, 88TH
CONG., 1ST SESS., 6 (1963), STATEMENT OF SENATOR LONG, CHAIRMAN OF THE
SUBCOMMITTEE AND SPONSOR OF SEC. 1666, WHICH WAS NOT CHANGED, IN
PERTINENT PART, IN THE FINAL ENACTMENT.  SEE ALSO HEARINGS ON H.R. 5012
ET AL. BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON GOVERNMENT
OPERATIONS, 89TH CONG., 1ST SESS., 14 (1965) (STATEMENT OF REP. MOSS,
SUBCOMMITTEE CHAIRMAN). 

/9/ ID., AT 3:  " ALL LAWS OR PART OF LAWS INCONSISTENT WITH THE
AMENDMENT MADE BY THE FIRST SECTION OF THIS ACT ARE HEREBY REPEALED. 

/10/ ID., AT 14, 20, 53. 

/11/ ID., AT 237.  SEE ALSO HEARINGS ON S. 1160 ET AL. BEFORE THE
SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., 366 (1965).  THE
STATUTE'S PREDECESSOR (49 U.S.C. SEC. 674) ALSO WAS SPECIFICALLY LISTED
ON AN EXHIBIT OF "EXEMPT STATUTES" SUBMITTED DURING THE 1958 HEARING ON
S. 921 BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE
COMMITTEE ON THE JUDICIARY, 85TH CONG., 2D SESS., PT 2, PP.  985 - 987,
997.  SUBSEQUENT LISTS--SPECIFICALLY NOT CLAIMING TO BE EXHAUSTIVE--
INCLUDE SIMILAR STATUTES.  SEE HOUSE COMMITTEE ON GOVERNMENT
OPERATIONS, FEDERAL STATUTES ON THE AVAILABILITY OF INFORMATION, 86TH
CONG., 2D SESS., 213, 209 (COMM. PRINT MAR. 1960), LISTING 26 U.S.C.
SEC. 6104 (A) AND 15 U.S.C. SEC. 78X (B).  SEE GENERALLY K. DAVIS,
ADMINISTRATIVE LAW TREATISE SEC. 3 A.18 (1970 SUPP.). 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN DISSENT FOR THE REASONS
GIVEN IN JUDGE FAHY'S OPINION FOR THE COURT OF APPEALS, 162 U.S.APP. 
D.C. 298, 498 F.2D 1031 (1974). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING IN THE JUDGMENT. 

EXEMPTION 3 OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. SEC. 552 (B)
(3), PROVIDES FOR NONDISCLOSURE OF "MATTERS THAT ARE . . . SPECIFICALLY
EXEMPTED FROM DISCLOSURE BY STATUTE."  SECTION 1104 OF THE FEDERAL
AVIATION ACT OF 1958, 72 STAT. 797, 49 U.S.C. SEC. 1504, SPECIFICALLY
PROVIDES THAT WHEN "(ANY PERSON" OBJECTS TO THE PUBLIC DISCLOSURE OF
CERTAIN INFORMATION, "THE BOARD OR ADMINISTRATOR SHALL ORDER SUCH
INFORMATION WITHHELD FROM PUBLIC DISCLOSURE WHEN, IN THEIR JUDGMENT, A
DISCLOSURE OF SUCH INFORMATION WOULD ADVERSELY AFFECT THE INTERESTS OF
SUCH PERSON AND IS NOT REQUIRED IN THE INTEREST OF THE PUBLIC."  THE
COURT TODAY RULES THAT INFORMATION MAY BE WITHHELD UNDER SEC. 1104 BY
REASON OF EXEMPTION 3. 

LEGISLATION OF UNUSUALLY BROAD SCOPE OFTEN REFLECTS RECONCILIATION
OF CONFLICTING VALUES AND POLICIES.  ON OCCASION, THEREFORE, PARTICULAR
PROVISIONS OF SUCH LEGISLATION MAY SEEM AT ODDS WITH ITS BASIC
PURPOSE.  BUT WHEN THE STATUTORY LANGUAGE IS RELATIVELY CLEAR AND THE
LEGISLATIVE HISTORY CASTS NO SERIOUS DOUBT, THE ONLY APPROPRIATE
JUDICIAL COURSE IS TO GIVE EFFECT TO THE EVIDENT LEGISLATIVE INTENT. 

SO IT IS HERE.  THE FREEDOM OF INFORMATION ACT WAS ENACTED IN ORDER
TO IMPOSE OBJECTIVE AND EASILY APPLICABLE STATUTORY DISCLOSURE
STANDARDS IN PLACE OF RELATIVELY AMORPHOUS STANDARDS SUCH AS THE
"PUBLIC INTEREST," BEHIND WHICH THE MOST SELF-SERVING MOTIVES FOR
NONDISCLOSURE OF INFORMATION COULD BE CONCEALED.  EPA V. MINK, 410 U.S.
73, 79 (1973); AND SEE, E. G., S. REP. NO. 813, 89TH CONG., 1ST SESS.,
3 (1965).  BUT IT SEEMS EQUALLY CLEAR THAT CONGRESS INTENDED TO LEAVE
LARGELY UNDISTURBED EXISTING STATUTES DEALING WITH THE DISCLOSURE OF
INFORMATION BY SPECIFIC AGENCIES.  SEE, E. G., H.R.REP.  NO. 1497, 89TH
CONG., 2D SESS., 10 (1966). 

SIMPLY STATED, THE RESPONDENTS' POSITION IS THAT TO ALLOW
ADMINISTRATIVE DISCRETION UNDER A GENERAL "PUBLIC INTEREST" STANDARD TO
DETERMINE WHETHER INFORMATION SHALL BE DISCLOSED TO THE PUBLIC IS
INCONSISTENT WITH THE GENERAL THRUST OF THE FREEDOM OF INFORMATION
ACT.  FOR THIS COURT TO ACCEPT THAT POSITION, IT MUST ACCEPT ITS
INEVITABLE COROLLARY:  THAT BY ENACTING THE FREEDOM OF INFORMATION ACT,
CONGRESS INTENDED TO REPEAL, BY IMPLICATION ALONE, THOSE STATUTES THAT
MAKE DISCLOSURE A MATTER OF AGENCY DISRETION.  /1/ IT SIMPLY IS
IMPOSSIBLE FAIRLY TO DISCERN ANY SUCH INTENTION ON THE PART OF
CONGRESS.  THERE IS NO EVIDENCE OF SUCH AN INTENTION IN EITHER THE
STATUTORY LANGUAGE OR THE LEGISLATIVE HISTORY, AND THERE ARE STRONG
INTIMATIONS TO THE CONTRARY.  SEE ANTE, AT 263 - 265. 

OUR ROLE IS TO INTERPRET STATUTORY LANGUAGE, NOT TO REVISE IT.  AS
MATTERS NOW STAND, WHEN AN AGENCY ASSERTS A RIGHT TO WITHHOLD
INFORMATION BASED ON A SPECIFIC STATUTE OF THE KIND DESCRIBED IN
EXEMPTION 3, THE ONLY QUESTION "TO BE DETERMINED IN A DISTRICT COURT'S
DE NOVO INQUIRY IS THE FACTUAL EXISTENCE OF SUCH A STATUTE, REGARDLESS
OF HOW UNWISE, SELF-PROTECTIVE, OR INADVERTENT THE ENACTMENT MIGHT
BE."  /2/  EPA V. MINK, SUPRA, AT 95 N. (STEWART, J., CONCURRING). 

ON THIS BASIS, I CONCUR IN THE JUDGMENT OF THE COURT. 

/1/ A SUBSTANTIAL NUMBER OF STATUTES LEAVE DISCLOSURE OF VARIOUS
DOCUMENTS TO THE DISCRETION OF AN ADMINISTRATIVE OFFICER.  EXAMPLES ARE
52 STAT. 1398, AS AMENDED, 42 U.S.C. SEC. 1306 (A), WHICH PROHIBITS
DISCLOSURE OF "ANY . . . REPORT . . . OBTANINED AT ANY TIME BY THE
SECRETARY OF HEALTH, EDUCATION, AND WELFARE . . . EXCEPT AS THE
SECRETARY . . . MAY BY REGULATIONS PRESCRIBE"; 35 U.S.C. SEC. 122,
WHICH PROVIDES THAT INFORMATION IN PATENT APPLICATIONS CANNOT BE MADE
PUBLIC BY THE PATENT OFFICE "UNLESS NECESSARY TO CARRY OUT THE
PROVISIONS OF ANY ACT OF CONGRESS OR IN SUCH SPECIAL CIRCUMSTANCES AN
MAY BE DETERMINED BY THE COMMISSIONER"; AND 38 U.S.C. SEC. 3301, WHICH
STATES THAT ALL FILES, RECORDS, AND OTHER PAPERS PERTAINING TO ANY
CLAIM UNDER ANY LAW ADMINISTERED BY THE VETERANS' ADMINISTRATION ARE
NOT TO BE DISCLOSED, EXCEPT THAT "(THE ADMINISTRATOR MAY RELEASE
INFORMATION . . . WHEN IN HIS JUDGMENT SUCH RELEASE WOULD SERVE A
USEFUL PURPOSE."     /2/ IT SHOULD BE NOTED, HOWEVER, AS THE SOLICITOR
GENERAL HAS POINTED OUT, THAT UNDER 49 U.S.C. SEC. 1486, JUDICIAL
REVIEW OF AN ORDER OF NONDISCLOSURE UNDER 49 U.S.C. SEC. 1104 IS
AVAILABLE IN THE COURT OF APPEALS. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR PETITIONERS. 
ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
HILLS, ALLAN ABBOT TUTTLE, LEONARD SCHAITMAN, AND THOMAS G. WILSON. 
ALAN B. MORRISON ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 
..END :























ABERDEEN & ROCKFISH R.R.CO. V. SCRAP 422 US 289 


       ABERDEEN & ROCKFISH RAILROAD CO. ET AL. V. STUDENTS

           CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP) ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA

NO. 73 - 1966.  ARGUED MARCH 26, 1975--DECIDED JUNE 24,

      1975; 371 F.SUPP.  1291, REVERSED. 

        (TOGETHER WITH NO. 73 - 1971, UNITED STATES ET AL. V.

STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES

  (SCRAP) ET AL., ALSO ON APPEAL FROM THE SAME COURT.) 


IN DECEMBER 1971, THE NATION'S RAILROADS, CITING SHARPLY INCREASING
COSTS AND DECREASING OR NEGATIVE PROFITS, COLLECTIVELY PROPOSED TO FILE
TARIFFS INCREASING THEIR FREIGHT RATES BY A TEMPORARY SURCHARGE ACROSS
THE BOARD.  THE INTERSTATE COMMERCE COMMISSION (ICC), IN THE ENSUING
GENERAL REVENUE PROCEEDING, FINDING THAT THE RAILROADS HAD A CRITICAL
AND IMMEDIATE NEED FOR REVENUE, DECLINED TO EXERCISE ITS POWER TO
SUSPEND PROPOSED RATE INCREASES, AND THE SURCHARGE BECAME EFFECTIVE IN
FEBRUARY 1972.  THE RAILROADS SHORTLY FILED FOR LARGER, SELECTIVE RATE
INCREASES, BUT IN APRIL 1972 THE ICC SUSPENDED THE EFFECTIVENESS OF
THESE INCREASES PENDING ITS INVESTIGATION OF THEIR LAWFULNESS, THE ICC
THE PREVIOUS MONTH HAVING SERVED A BRIEF DRAFT ENVIRONMENTAL IMPACT
STATEMENT ON ALL PARTIES TO THE INVESTIGATION, DISCUSSING THE
ENVIRONMENTAL CONSEQUENCES OF RATE INCREASES WITH RESPECT TO
RECYCLABLES IN GENERAL TERMS AND CONCLUDING THAT THERE WAS NO BASIS YET
TO BELIEVE THAT THE ENVIRONMENT WOULD BE SUBSTANTIALLY AFFECTED
THEREBY.  THEREAFTER, APPELLEE SCRAP AND OTHER ENVIRONMENTAL GROUPS
FILED SUIT ALLEGING THAT THE ICC HAD DECIDED NOT TO SUSPEND THE
SURCHARGE PENDING ITS INVESTIGATION--WHICH DECISION WOULD HAVE A
SUBSTANTIAL EFFECT ON THE ENVIRONMENT--WITHOUT PREPARING AN
ENVIRONMENTAL IMPACT STATEMENT OR CONSIDERING ENVIRONMENTAL ISSUES AS
REQUIRED BY THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA); THAT THE PRE
EXISTING RATE STRUCTURE DISCRIMINATED AGAINST RECYCLABLES AND IN FAVOR
OF VIRGIN MATERIALS; AND THAT THE SURCHARGE EXACERBATED THIS SITUATION
WITH THE UNFORTUNATE CONSEQUENCE TO THE ENVIRONMENT THAT USE OF
RECYCLABLE MATERIALS WOULD BE INHIBITED AND USE OF VIRGIN MATERIALS
ENCOURAGED.  A THREE-JUDGE DISTRICT COURT WAS CONVENED UNDER 28 U.S.C.
SEC. 2325 (NOW REPEALED), WHICH REQUIRED THAT AN INJUNCTION RESTRAINING
THE ENFORCEMENT, OPERATION, OR EXECUTION OF AN ICC ORDER WOULD NOT BE
GRANTED UNLESS THE APPLICATION THEREFOR WAS HEARD AND DETERMINED BY A
THREE-JUDGE COURT, AND RELIEF WAS GRANTED.  ON DIRECT APPEAL, THIS
COURT REVERSED IN UNITED STATES V. SCRAP, 412 U.S. 669 (SCRAP I),
HOLDING THAT SEC. 15 (7) OF THE INTERSTATE COMMERCE ACT LODGES IN THE
ICC EXCLUSIVE POWER TO SUSPEND RATE INCREASES PENDING FINAL
DETERMINATION OF THEIR LAWFULNESS.  MEANWHILE, IN OCTOBER 1972, AFTER
AN ORAL HEARING, THE ICC ISSUED A FINAL REPORT DECLINING TO DECLARE THE
SELECTIVE RATE INCREASES UNLAWFUL, TERMINATING THE PREVIOUSLY ENTERED
SUSPENSION ORDER, CANCELING THE SURCHARGE THAT HAD BEEN SUBSUMED IN THE
SELECTIVE INCREASES, AND ORDERING A CEILING ON RATE INCREASES WITH
RESPECT TO SOME BUT NOT ALL RECYCLABLES.  THE REPORT STATED THAT HAVING
GIVEN EXTENSIVE CONSIDERATION TO ENVIRONMENTAL FACTORS, THE ICC WOULD
NOT FILE A SEPARATE, FORMAL IMPACT STATEMENT UNDER THE NEPA, AND
POINTED OUT THAT THE ICC HAD BEGUN A SEPARATE INVESTIGATION INTO THE
ENTIRE RATE STRUCTURE FOCUSING ON WHETHER IT INTERFERED WITH THE
GOVERNMENT'S ENVIRONMENTAL PROGRAM.  HOWEVER, IN NOVEMBER 1972, THE ICC
REOPENED ITS INVESTIGATION INTO THE LAWFULNESS OF SELECTIVE RATE
INCREASES TO RECONSIDER THE ENVIRONMENTAL EFFECTS OF THE NEW RATES ON
RECYCLABLES, SUCH RATES BEING SUSPENDED FOR AN ADDITIONAL PERIOD WITH
THE RAILROADS'  CONSENT.  IN MARCH 1973 THE ICC SERVED AN EXPANDED
DRAFT IMPACT STATEMENT, AND IN MAY 1973 ISSUED A FINAL IMPACT
STATEMENT, CONCLUDING THAT ITS ORDER OF OCTOBER 1972 HAD BEEN CORRECT,
AND FINALLY TERMINATING ITS INVESTIGATION WITHOUT DECLARING ANY OF THE
PROPOSED RATES UNLAWFUL EXCEPT AS PREVIOUSLY PROVIDED IN THE OCTOBER
1972 ORDER.  IN MAY 1973, SHORTLY BEFORE THE INCREASED RATES ON
RECYCLABLES WERE TO BECOME EFFECTIVE, APPELLEES SCRAP AND ENVIRONMENTAL
DEFENSE FUND (EDF) FILED A MOTION FOR A PRELIMINARY INJUNCTION TO
RESTRAIN THE IMPLEMENTATION OF INCREASED RATES ON RECYCLABLES, AND THE
THREE-JUDGE COURT GRANTED THE MOTION.  THE RAILROADS AND THE ICC
APPEALED, AND IN JUNE 1973, THE CHIEF JUSTICE STAYED THE ORDER ON THE
RAILROADS' MOTION, AND THE FULL COURT DECLINED TO VACATE THE STAY, 413
U.S. 917, WITH THE RESULT THAT THE INCREASED RATES ON RECYCLABLES WENT
INTO, AND REMAIN IN, EFFECT.  IN NOVEMBER 1973 THIS COURT VACATED THE
PRELIMINARY INJUNCTION AND REMANDED THE CASES FOR RECONSIDERACTION, 414
U.S. 1035.  MEANWHILE, APPELLEES HAD FILED MOTIONS FOR SUMMARY JUDGMENT
IN THE THREE-JUDGE COURT.  FINDING THAT THE ICC HAD FAILED TO COMPLY
WITH THE NEPA, IN THAT, INTER ALIA, IT FAILED TO HOLD AN ORAL HEARING
BEFORE ADOPTING THE FINAL IMPACT STATEMENT, HAVING PREVIOUSLY HELD SUCH
A HEARING (PRESUMPTIVELY AN "EXISTING AGENCY REVIEW PROCESS") BEFORE
ISSUING ITS OCTOBER 1972 ORDER, AND SHOULD HAVE STARTED OVER AGAIN
AFTER IT DECIDED TO ISSUE A FINAL IMPACT STATEMENT, THAT COURT SET
ASIDE THE ICC ORDER TERMINATING THE GENERAL REVENUE PROCEEDING WITHOUT
DECLARING THE RATE INCREASES UNLAWFUL AND ORDERED THE ICC TO REOPEN THE
PROCEEDING, PREPARE A NEW IMPACT STATEMENT UNDER THE NEPA, HOLD
HEARINGS, AND RECONSIDER, IN LIGHT OF THE NEW STATEMENT, ITS
DETERMINATION TO DECLARE THE RATE INCREASES ON RECYCLABLES LAWFUL.  THE
RAILROADS APPEALED, CLAIMING THAT THE DISTRICT COURT HAD NO
JURISDICTION OVER THE CASE, AND THAT THE ICC HAD, IN ANY EVENT, FULLY
COMPLIED WITH THE NEPA, AND THE ICC AND THE UNITED STATES APPEALED,
CLAIMING ONLY THAT THE ICC HAD SO COMPLIED WITH THE NEPA.  HELD: 

1. THIS COURT HAS JURISDICTION OVER THE APPEALS UNDER 28 U.S.C. SEC.
1253, WHICH GIVES THIS COURT JURISDICTION TO DETERMINE APPEALS FROM "AN
ORDER GRANTING OR DENYING.  . .AN . . . INJUNCTION IN ANY CIVIL ACTION
. . . REQUIRED . . . TO BE HEARD AND DETERMINED" BY A THREE-JUDGE
DISTRICT COURT, SINCE THE DISTRICT COURT'S ORDER, WHICH NOT ONLY
DECLARED THAT THE ICC HAD FAILED TO COMPLY WITH THE NEPA BUT ALSO
DIRECTED THE ICC TO PERFORM CERTAIN ACTS, WAS AN "INJUNCTION" WITHIN
THE MEANING OF SEC. 1253, AND SINCE, MOREOVER, SUCH ORDER RESTRAINED
"THE ENFORCEMENT, OPERATION OR EXECUTION" OF THE ICC ORDER WITHIN THE
MEANING OF 28 U.S.C. SEC. 2325, AND HENCE COULD HAVE BEEN ISSUED ONLY
BY A THREE-JUDGE COURT.  PP. 306 - 309. 

2.  THE DISTRICT COURT HAD JURISDICTION TO REVIEW THE ICC'S DECISION
NOT TO DECLARE THE INCREASED RATES UNLAWFUL, NOTWITHSTANDING SUCH
DECISION WAS MADE IN A GENERAL REVENUE PROCEEDING.  PP. 310 - 319. 

(A) THERE IS NO MERIT TO THE RAILROADS' ARGUMENT THAT THE ICC'S
DECISION IS JUST AS MUCH AN INTERIM DECISION AS A DECISION NOT TO
SUSPEND A PARTICULAR RATE PENDING INVESTIGATION, AND HENCE IS
UNREVIEWABLE UNDER SCRAP I, SUPRA.  SICE THE DISTRICT COURT DID NOT
ENJOIN COLLECTION OF THE RATES SO AS TO COME WITHIN THE RULE BARRING
COURTS FROM ENTERING DISRUPTIVE INJUNCTIONS AGAINST COLLECTION OF RATES
NOT FINALLY DECLARED UNLAWFUL BY THE ICC, THE RULE OF SCRAP I IS NOT
APPLICABLE EVEN IF WHAT THE RAILROADS SAY IS TRUE.  P. 317. 

(B) NOR IS THERE ANY MERIT TO THE RAILROADS' ARGUMENT (1) THAT,
TREATING THE DISTRICT COURT'S DECISION AS A REVIEW OF WHETHER THE
RECORD SUPPORTED THE ICC'S DECISION NOT TO SUSPEND THE RATES AS TO
RECYCLABLES, THE DISTRICT COURT REVIEWED AN ISSUEDNOT YET DECIDED
FINALLY BY THE ICC IN VIOLATION OF THE PRINCIPLES OF FINALITY AND
EXHAUSTION OF REMEDIES, AND (2) THAT THE DISTRICT COURT'S CONCLUSION
THAT THE RULE AGAINST REVIEW OF GENERAL REVENUE PROCEEDINGS DOES NOT
APPLY TO NEPA CASES IS CONTRARY TO THE DECISION IN SCRAP I THAT THE
NEPA DOES NOT CHANGE PRE-EXISTING JURISDICTIONAL RULES.  HERE THE ISSUE
AS TO WHETHER THE ICC HAD ADEQUATELY CONSIDERED UNDER THE NEPA
ENVIRONMENTAL FACTORS IN THE GENERAL REVENUE PROCEEDING, HAD ALREADY
BEEN FINALLY DECIDED BY THE ICC AND THE RELIEF SOUGHT FROM AND GRANTED
BY THE DISTRICT COURT COULD NOT HAVE BEEN OBTAINED FROM THE ICC IN A
SUBSEQUENT PROCEEDING UNDER SEC. 13 OF THE INTERSTATE COMMERCE ACT. 
WHILE THE INTERIM NATURE OF A GENERAL REVENUE PROCEEDING MAY BE
RELEVANT TO THE EXTENT OF THE CONSIDERATION OF ENVIRONMENTAL FACTORS
REQUIRED, ITS NATURE DOES NOT PREVENT REVIEW OF THE QUESTION, FINALLY
DECIDED BY THE ICC, WHETHER THE ENVIRONMENTAL IMPACT STATEMENT PREPARED
FOR THAT PROCEEDING IS ADEQUATE.  WHEN AGENCY CONSIDERATION OF
ENVIRONMENTAL FACTORS IN CONNECTION WITH MAJOR "FEDERAL ACTION" IS
COMPLETE, NOTIONS OF FINALITY AND EXHAUSTION DO NOT BAR JUDICIAL REVIEW
OF THE ADEQUACY OF SUCH CONSIDERATION, EVEN THOUGH OTHER ASPECTS OF THE
RATE INCREASE ARE NOT RIPE FOR REVIEW.  PP. 317 - 319. 

3. THE DISTRICT COURT ERRED IN DECIDING THAT THE ORAL HEARING THAT
THE ICC HELD PRIOR TO ITS OCTOBER 1972 ORDER WAS AN "EXISTING AGENCY
REVIEW PROCESS" DURING WHICH A FINAL ENVIRONMENTAL IMPACT STATEMENT
SHOULD HAVE BEEN AVAILABLE.  THE NEPA PROVIDES THAT A FORMAL IMPACT
STATEMENT "SHALL ACCOMPANY THE PROPOSAL THROUGH THE EXISTING AGENCY
REVIEW PROCESSES," AND HENCE DOES NOT AFFECT THE TIME WHEN THE
"STATEMENT" MUST BE PREPARED, BUT SIMPLY PROVIDES WHAT MUST BE DONE
WITH THE "STATEMENT" ONCE IT IS PREPARED.  UNDER THIS PROVISION THE
TIME AT WHICH THE AGENCY MUST PREPARE THE FINAL "STATEMENT" IS THE TIME
AT WHICH IT MAKES A RECOMMENDATION OR REPORT ON A PROPOSAL FOR FEDERAL
ACTION.  HERE, UNTIL THE OCTOBER 1972 REPORT, THE ICC HAD MADE NO
PROPOSAL, AND HENCE THE EARLIEST TIME AT WHICH THE STATUTE REQUIRED A
STATEMENT WAS THE TIME OF THE OCTOBER 1972 REPORT--SOMETIME AFTER THE
ORAL HEARING.  PP. 319 - 321. 

4. THE DISTRICT COURT ALSO ERRED IN DECIDING THAT THE ICC SHOULD
HAVE "STARTED OVER AGAIN" AFTER IT DECIDED TO PROPOSE A FORMAL IMPACT
STATEMENT, EVEN ASSUMING THAT THE ICC ERRED IN FAILING TO PREPARE A
SEPARATE IMPACT STATEMENT TO ACCOPANY ITS OCTOBER 1972 REPORT OR THAT
THE CONSIDERATION GIVEN TO ENVIRONMENTAL FACTORS IN THAT REPORT WAS
INADEQUATE.  TO THE EXTENT THAT SUCH DECISION IS BASED ON THE COURT'S
BELIEF THAT THE MARCH 1973 DRAFT IMPACT STATEMENT HAD TO BE CONSIDERED
AT A HEARING, IT IS INCORRECT, SINCE IT APPEARS THAT THE CONSULTATION
WITH ENVIRONMENTALLY EXPERT AGENCIES REQUIRED BY THE NEPA OCCURRED FROM
THE OUTSET, THAT ENVIRONMENTAL ISSUES PERVADED THE HEARINGS HELD, AND
THAT ALL DRAFT IMPACT STATEMENTS WERE CIRCULATED BEFORE THE HEARINGS,
THUS INDICATING THAT PROCEDURALLY THE NEPA WAS THOROUGHLY COMPLIED WITH
TO THE TIME OF THE OCTOBER 1972 REPORT.  AND TO THE EXTENT THAT SUCH
DECISION IS BASED ON THE COURT'S BELIEF THAT THE ICC DID NOT IN GOOD
FAITH RECONSIDER ITS OCTOBER 1972 ORDER IN LIGHT OF THE IMPACT
STATEMENT, IT IS WITHOUT SUPPORT IN THE RECORD, SINCE THE ICC (AS IT IN
FACT PROCEEDED TO DO) WAS IN AS GOOD A POSITION TO CORRECT A STATUTORY
ERROR BY INTEGRATING ENVIRONMENTAL FACTORS INTO ITS REOPENED
INVESTIGATION AND INTO ITS MAY 1973 DECISION, AS IT WOULD HAVE BEEN IF
THE OCTOBER 1972 REPORT HAD NEVER BEEN WRITTEN.  PP. 321 - 322. 

5. THE DISTRICT COURT FURTHER ERRED IN CONCLUDING THAT THE FINAL
ENVIRONMENTAL IMPACT STATEMENT WAS DEFICIENT.  PP. 322 - 328. 

(A) AS IN MOST GENERAL REVENUE PROCEEDINGS, THE "ACTION" TAKEN BY
THE ICC WAS IN RESPONSE TO THE RAILROADS' CLAIM OF A FINANCIAL CRISIS,
AND THE INQUIRY WAS PRIMARILY INTO WHETHER SUCH A CRISIS--USUALLY
ENTITLING THE RAILROADS TO A GENERAL INCREASE--EXISTED, LEAVING
PRIMARILY TO MORE APPROPRIATE FUTURE PROCEEDINGS THE TASK OF ANSWERING
CHALLENGES TO RATES ON INDIVIDUAL COMMODITIES OR CATEGORIES THEREOF,
THE LATTER QUESTION--USUALLY INVOLVED IN A GENERAL REVENUE PROCEEDING
ONLY TO A LIMITED EXTENT--RAISING THE MOST SERIOUS ENVIRONMENTAL
ISSUES, AND THE FORMER QUESTION RAISING FEW SUCH ISSUES, NONE OF WHICH
IS CLAIMED HERE TO HAVE BEEN INADEQUATELY ADDRESSED IN THE IMPACT
STATEMENT.  PP. 322 - 324. 

(B) THERE IS NO MERIT TO THE APPELLEES' ARGUMENT THAT THE
ENVIRONMENTAL CONSEQUENCES FLOWING FROM A FACIALLY NEUTRAL RATE
INCREASE, WHICH, WHEN SUPERIMPOSED ON AN UNDERLYING RATE STRUCTURE,
ALLEGEDLY DISCRIMINATES AGAINST RECYCLABLES, MUST BE EXPLORED IN AN
IMPACT STATEMENT AND CAN BE EXPLORED ONLY BY ANALYZING THE UNDERLYING
RATE STRUCTURE; AND THAT, MOREOVER, THE ICC HAS BEEN TARDY IN COMPLYING
WITH THE NEPA, WAS REQUIRED TO ANALYZE THE UNDERLYING RATE STRUCTURE
ONLY ONCE WITH A VIEW TOWARD ENVIRONMENTAL CONSEQUENCES, HAD PLENTY OF
TIME AND CAUSE TO DO SO BEFORE ITS GENERAL REVENUE PROCEEDING, AND
THEREFORE SHOULD NOT HAVE BEEN PERMITTED TO TERMINATE THAT PROCEEDING
WITHOUT HAVING DONE SO.  SUCH ARGUMENT IS NOT ONLY CONTRARY TO THE
HOLDING IN UNITED STATES V. LOUISIANA, 290 U.S. 70, GIVING THE ICC WIDE
DISCRETION TO DECIDE WHAT ISSUES TO ADDRESS IN A GENERAL REVENUE
PROCEEDING AND TO POSTPONE COMPREHENSIVE CONSIDERATION OF
DISCRIMINATION CLAIMS, BUT IT ALSO LOSES FORCE IN VIEW OF THE FACT THAT
THE ICC HAD ALREADY BEGUN AN INVESTIGATION OF THE UNDERLYING RATE
STRUCTURE BEFORE COMMENCING ITS INVESTIGATION IN THE GENERAL REVENUE
PROCEEDING AND HAD STARTED TO CONSIDER ENVIRONMENTAL ISSUES IN THE
FORMER INVESTIGATION BEFORE THE DISTRICT COURT'S DECISION.  THUS, EVEN
IF THE NEPA WERE READ TO REQUIRE THE ICC TO ADDRESS COMPREHENSIVELY THE
UNDERLYING RATE STRUCTURE AT LEAST ONCE BEFORE APPROVING A FACIALLY
NEUTRAL GENERAL RATE INCREASE, NO PURPOSE COULD HAVE BEEN SERVED BY
ORDERING IT TO EXPLORE THE DISCRIMINATION QUESTION IN THE GENERAL
REVENUE PROCEEDING WHEN IT WAS ALREADY DOING SO IN A MORE APPROPRIATE
PROCEEDING.  PP. 324 - 325.     (C) THE DISTRICT COURT'S DECISION TO
DEEM THE "FEDERAL ACTION"  INVOLVED IN THE GENERAL REVENUE PROCEEDING
TO INCLUDE AN IMPLICIT APPROVAL OF THE UNDERLYING RATE STRUCTURE WAS
INACCURATE AND LED IT TO AN ENTIRELY UNWARRANTED INTRUSION INTO AN
APPARENTLY SENSIBLE DECISION BY THE ICC TO TAKE MUCH MORE LIMITED
"ACTION" IN THAT PROCEEDING AND TO UNDERTAKE THE LARGER ACTION IN A
SEPARATE PROCEEDING BETTER SUITED TO THE TASK.  P. 326. 

(D) IN VIEW OF THE SCOPE OF THE "FEDERAL ACTION" BEING TAKEN BY THE
ICC IN THE GENERAL REVENUE PROCEEDING, THE DISTRICT COURT WAS INCORRECT
IN HOLDING THAT THE FINAL IMPACT STATEMENT INADEQUATELY EXPLORED THE
UNDERLYING RATE STRUCTURE AND THE EXTENT TO WHICH THE USE OF
RECYCLABLES WILL BE AFFECTED BY THE RATE STRUCTURE.  PP. 326 - 328. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, MARSHALL, BLACKMUN, AND REHNQUIST, JJ.,
JOINED, AND IN PARTS I, II, AND III OF WHICH DOUGLAS, J., JOINED. 
DOUGLAS, J., FILED AN OPINION DISSENTING IN PART, POST, P. 328. 
POWELL, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASES. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE NATION'S RAILROADS, THE UNITED STATES, AND THE INTERSTATE
COMMERCE COMMISSION (ICC) APPEAL FROM THE JUDGMENT OF A THREE-JUDGE
FEDERAL COURT WHICH SET ASIDE AN ICC ORDER TERMINATING A GENERAL
REVENUE PROCEEDING WITHOUT DECLARING UNLAWFUL CERTAIN RATE INCREASES
FILED BY THE NATION'S RAILROADS WITH THE ICC.  THE ORDER DIRECTED THE
ICC TO REOPEN THE PROCEEDING, PREPARE A BETTER ENVIRONMENTAL IMPACT
STATEMENT UNDER SEC. 102 (2) (C) OF THE NATIONAL ENVIRONMENTAL POLICY
ACT (NEPA), 83 STAT.  853, 42 U.S.C. SEC. 4332 (2) (C), HOLD HEARINGS,
AND RECONSIDER, IN LIGHT OF THE NEW IMPACT STATEMENT, ITS DETERMINATION
NOT TO DECLARE THE RATE INCREASES APPLICABLE TO RECYCLABLES /1/
UNLAWFUL. 

THE IMPACT STATEMENT INVOLVED IS THAT REQUIRED BY SEC. 102 (2) OF
NEPA, 42 U.S.C. SEC. 4332 (2), SET OUT IN THE MARGIN.  /2/ THE JUDGMENT
WAS BASED ON THE THREE-JUDGE COURT'S VIEW THAT THE 150-PRINTED-PAGE
IMPACT STATEMENT PREPARED BY THE ICC IN CONNECTION WITH THE GENERAL
REVENUE PROCEEDING INSUFFICIENTLY CONSIDERED CERTAIN ENVIRONMENTAL
ISSUES AND THUS FAILED TO COMPLY WITH THE MANDATE OF SUBSECTION (2) (C)
OF SEC. 102 OF NEPA; AND THAT FAILURE OF THE ICC TO HOLD HEARINGS AFTER
PREPARING A DRAFT OF THE STATEMENT VIOLATED THE COMMAND OF THE STATUTE
THAT THE STATEMENT "ACCOMPANY THE PROPOSAL THROUGH THE EXISTING AGENCY
REVIEW PROCESSES."  BECAUSE WE BELIEVE THAT THE DISTRICT COURT ERRED IN
SEVERAL RESPECTS, WE REVERSE. 

        I 

THIS LAWSUIT HAS A LENGTHY HISTORY, A BRIEF SUMMARY OF WHICH IS
NECESSARY TO AN UNDERSTANDING OF THE ISSUES PRESENTED BY THIS APPEAL. 
IN DECEMBER 1971, CITING SHARPLY INCREASING COSTS AND DECREASING OR
NEGATIVE PROFITS, SUBSTANTIALLY ALL OF THE NATION'S RAILROADS
COLLECTIVELY PROPOSED TO FILE TARIFFS INCREASING THEIR FREIGHT RATES BY
2.5% ACROSS THE BOARD.  THE "SURCHARGE" WAS STATED TO BE TEMPORARY AND
WAS TO BE FOLLOWED BY A FILING FOR LARGER, SOMEWHAT SELECTIVE RATE
INCREASES.  FINDING THAT THE RAILROADS HAD A CRITICAL AND IMMEDIATE
NEED FOR REVENUE, THE ICC DECLINED TO EXERCISE ITS POWER TO SUSPEND
PROPOSED RATE INCREASES UNDER 24 STAT.  384, AS AMENDED, 49 U.S.C. SEC.
15 (7), AND THE SURCHARGE BECAME EFFECTIVE ON FEBRUARY 5, 1972.  ON
MARCH 17, 1972, THE RAILROADS FILED THEIR SELECTIVE-INCREASE PROPOSAL,
WHICH WOULD RESULT IN AN AVERAGE INCREASE ACROSS THE BOARD OF 4.1% OVER
THE RATES ANTENDATING THE SURCHARGE--THESE NEW SELECTIVE INCREASES TO
BECOME EFFECTIVE ON MAY 1, 1972.  MEANWHILE, THE ICC HAD DIRECTED THE
RAILROADS TO FILE AN ENVIRONMENTAL IMPACT STATEMENT WITH RESPECT TO THE
RATE INCREASES AND TO SERVE IT ON INTERESTED PARTIES.  THIS WAS DONE ON
JANUARY 3, 1972, AND THOSE SERVED INCLUDED APPELLEE SCRAP.  NUMEROUS
COMMENTS WERE RECEIVED IN RESPONSE TO THIS STATEMENT.  ON APRIL 24,
1972, THE ICC SUSPENDED THE EFFECTIVENESS OF THE SELECTIVE INCREASES
FOR THE MAXIMUM ALLOWABLE SEVEN-MONTH PERIOD UNDER 49 U.S.C. SEC. 15
(7), UNTIL NOVEMBER 30, 1972, PENDING ITS INVESTIGATION, STYLED EX
PARTE 281, INTO THEIR LAWFULNESS.  ON MARCH 6, 1972, THE ICC SERVED A
BRIEF DRAFT ENVIRONMENTAL IMPACT STATEMENT OF ITS OWN ON ALL PARTIES TO
EX PARTE 281, INCLUDING APPELLEES AND THE COUNCIL ON ENVIRONMENTAL
QUALITY (CEQ), ENVIRONMENTAL PROTECTION AGENCY (EPA), AND THE
DEPARTMENT OF TRANSPORTATION.  THE STATEMENT DISCUSSED ENVIRONMENTAL
CONSEQUENCES OF RATE INCREASES WITH RESPECT TO RECYCLABLES IN GENERAL
TERMS AND CONCLUDED THAT THE ICC HAD NO BASIS YET TO BELIEVE THAT THE
ENVIRONMENT WOULD BE SUBSTANTIALLY AFFECTED THEREBY. 

THEREAFTER, WHILE THE SELECTIVE RATES WERE SUSPENDED BUT THE
SURCHARGE WAS BEING COLLECTED, A GROUP LAW STUDENTS--STUDENTS
CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP)--AND OTHER
ENVIRONMENTAL GROUPS FILED THE INSTANT LAWSUIT ALLEGING THAT THE ICC
HAD MADE A DECISION NOT TO SUSPEND THE 2.5% SURCHARGE PENDING ITS
INVESTIGATION--WHICH DECISION WOULD HAVE A SUBSTANTIAL EFFECT ON THE
ENVIRONMENT--WITHOUT PREPARING AN ENVIRONMENTAL IMPACT STATEMENT OR
CONSIDERING ENVIRONMENTAL ISSUES, AS REQUIRED BY NEPA.  APPELLEES
CLAIMED THAT THE PRE-EXISTING RATE STRUCTURE DISCRIMINATED AGAINST
RECYCLABLES AND IN FAVOR OF VIRGIN MATERIALS, AND THAT THE ACROSS-THE
BOARD RATE SURCHARGE EXACERBATED THIS SITUATION WITH THE UNFORTUNATE
CONSEQUENCE TO THE ENVIRONMENT THAT USE OF RECYCLABLE MATERIALS WOULD
BE INHIBITED AND USE OF VIRGIN MATERIALS INCOURAGED.  THE COMPLAINT
SOUGHT TO COMPEL THE ICC TO SUSPEND THE RATE SURCHARGE AND TO ENJOIN
THE RAILROADS FROM COLLECTING IT. 

A THREE-JUDGE COURT WAS THEREFORE CONVENED UNDER 28 U.S.C. SEC.
2325, WHICH HAS SINCE BEEN REPEALED.  RELIEF WAS GRANTED.  ON DIRECT
APPEAL UNDER 28 U.S.C. SEC. 1253, THIS COURT REVERSED, HOLDING THAT
UNDER THE DOCTRINE OF ARROW TRANSPORTATION CO. V. SOUTHERN R. CO., 372
U.S. 658 (1963), 49 U.S.C. SEC. 15 (7) LODGES IN THE ICC EXCLUSIVE
POWER TO SUSPEND RATE INCREASES PENDING FINAL DETERMINATION OF THEIR
LAWFULNESS.  UNITED STATES V. SCRAP, 412 U.S. 669 (1973) (SCRAP I). 

MEANWHILE, ON OCTOBER 4, 1972, THE ICC ISSUED A FINAL REPORT DATED
SEPTEMBER 27, 1972, DECLINING, IN THE MAIN, TO DECLARE UNLAWFUL THE
SELECTIVE RATE INCREASES, AND TERMINATING THE SUSPENSION ORDER
PREVIOUSLY ENTERED.  THE SURCHARGE WAS CANCELED, THOSE INCREASES HAVING
BEEN SUBSUMED IN THE SELECTIVE INCREASES.  THE REPORT, WHICH WAS
PREPARED AFTER EXTENSIVE WRITTEN RESPONSES TO THE DRAFT ENVIRONMENTAL
IMPACT STATEMENT HAD BEEN SUBMITTED BY VARIOUS GOVERNMENT AND
NONGOVERNMENT AGENCIES AND AFTER ORAL HEARINGS HADD BEEN HELD, COVERS
92 PRINTED PAGES, 17 OF WHICH DEAL WITH THE QUESTION WHETHER THE
RAILROADS WERE IN NEED OF ADDITIONAL REVENUE; 15 OF WHICH DEAL WITH
GENERAL ENVIRONMENTAL CONSEQUENCES WHICH MIGHT FLOW FROM THE INCREASES;
AND 36 OF WHICH DEAL WITH THE ENVIRONMENTAL CONSEQUENCES TO FLOW FROM
SPECIFIC INCREASES IN RATES ON SPECIFIC RECYCLABLE MATERIALS. 

THE REPORT NOTED THAT THE "PRINCIPAL ISSUE" IN A GENERAL REVENUE
PROCEEDING IS WHETHER THE RAILROADS ARE IN NEED OF ADDITIONAL REVENUE;
AND CONCLUDED THAT THE RAILROADS HAD DEMONSTRATED OVERWHELMINGLY THAT
THEY WERE.  IT THEN STATED THAT THERE WERE TWO POSSIBLE ADVERSE AFFECTS
ON THE INVIRONMENT WHICH MIGHT FLOW FROM FAILURE TO DECLARE THE
INCREASES UNLAWFUL.  FIRST, THE INCREASE IN RAIL RATES MIGHT DIVERT
TRAFFIC TO TRUCKS, WHICH ARE ALLEGEDLY HEAVIER POLLUTERS THAN TRAINS. 
SECOND, THE INCREASE IN RATES FOR RECYCLABLES MIGHT DISCOURAGE THEIR
USE RESULTING IN INCREASED SOLID WASTE--DISPOSAL OF WHICH CREATES
ENVIRONMENTAL PROBLEMS--AND AN ACCELERATED DEPLETION OF THE COUNTRY'S
NATURAL RESOURCES.  THE DANGER OF DIVERSION TO TRUCK TRAFFIC WAS
CONSIDERED INSUBSTANTIAL FOR SEVERAL REASONS, AMONG WHICH WERE THE FACT
THAT TRUCK RATES HAD INCREASED DUE TO SIMILAR INCREASES IN COSTS AND
THE FACT THAT THE RATE INCREASES SOUGHT BY THE RAILROADS WERE
PERMISSIVE AND WOULD NOT BE USED WITH RESPECT TO COMMODITIES WHICH
WOULD BE DIVERTED TO TRUCKS.  MOREOVER, ANY DANGER OF DIVERSION WAS
PLAINLY OUTWEIGHED BY THE FACT THAT THE RAILROADS NEEDED MONEY AND
WOULD EVENTUALLY GO OUT OF BUSINESS WITHOUT THE INCREASES.  /3/ 

WITH RESPECT TO RECYCLABLES, THE REPORT EMPHASIZED THAT TIME IS OF
THE ESSENCE IN GENERAL REVENUE PROCEEDINGS IN LIGHT OF THE CLAIM OF
NEED BY THE RAILROADS FOR IMMEDIATE REVENUE AND THAT THEIR ENTITLEMENT
TO THE OVERALL INCREASE USUALLY FOLLOWS FROM A SHOWING OF SUCH NEED. 
THE CONSIDERATION OF OTHER FACTORS IS THEREFORE NECESSARILY ABBREVIATED
AND THEIR FURTHER ANALYSIS IS POSTPONED TO SPECIALIZED PROCEEDINGS MORE
APPROPRIATE FOR THEIR INDEPTH CONSIDERATION, SUCH AS PROCEEDINGS
INCIDENT TO INDIVIDUAL COMPLAINTS FILED UNDER 49 U.S.C. SEC. 13 (1)
ASSERTING THAT A PARTICULAR RATE OR GROUP OF RATES, SUCH AS RATES ON
RECYCLABLES, ARE UNJUST AND UNREASONABLE, TOO HIGH IN RELATION TO OTHER
RATES OR OTHERWISE ILLEGAL UNDER THE APPLICABLE LAW.  INDEED, THE
REPORT POINTED OUT THAT THE ICC HAD ITSELF BEGUN EX PARTE 270, A
SEPARATE COMPREHENSIVE INVESTIGATION INTO THE ENTIRE RATE STRUCTURE AND
WAS THERE FOCUSING ON THE QUESTION WHETHER THE RATE PATTERN INTERFERED
WITH GOVERNMENT'S ENVIRONMENTAL PROGRAM.  THE REPORT NOTED THAT THERE
WERE LIMITS ON THE EXTENT TO WHICH THE APPLICABLE PROVISIONS OF THE
INTERSTATE COMMERCE ACT WOULD PERMIT SPECIAL RATES FOR RECYCLABLES OR
ALLOW THE ICC TO REQUIRE THE RAILROADS TO SUBSIDIZE THEIR
TRANSPORTATION.  APPLYING STANDARD RATEMAKING CRITERIA, THE REPORT
REJECTED, ON THE BASIS OF THE INFORMATION THEN BEFORE IT, THE CLAIM
THAT THE UNDERLYING RATE STRUCTURE DISCRIMINATED AGAINST RECYCLABLES. 
IT ALSO CONCLUDED THAT THE USE OF RECYCLABLES, PARTICULARLY FERROUS
SCRAP, WAS NOT RESPONSIVE TO RATE INCREASES--PARTICULARLY WHEN
ACCOMPANIED BY SIMILIAR RATE INCREASES APPLICABLE TO COMPETING VIRGIN
MATERIALS.  THE ICC ORDERED A 3% CEILING ON INCREASES WITH RESPECT TO
SOME, BUT NOT ALL, /4/ RECYCLABLES, AND CONCLUDED THAT THERE WAS NO
REASON FOR FINALLY DETERMINING IN THE CONTEXT OF A GENERAL REVENUE
PROCEEDING WHETHER THE RATE STRUCTURE, WITH OR WITHOUT THE SCHEDULED
INCREASES, WAS UNJUST AND UNREASONABLE OR ILLEGALLY DISCRIMINATORY. 
THE REPORT ALSO STATED THAT HAVING GIVEN EXTENSIVE CONSIDERATION TO
ENVIRONMENTAL FACTORS, SCRAP I, 412 U.S., AT 683 N. 11, THE ICC WOULD
NOT FILE A SEPARATE, FORMAL ENVIRONMENTAL IMPACT STATEMENT UNDER
SUBSECTION 102 (2) (C) OF NEPA. 

THE REPORT INDICATED THAT THE INCREASES ON NONRECYCLABLES WOULD
BECOME EFFECTIVE ON 15 DAYS' NOTICE FROM THE RAILROADS AND THAT THE
INCREASES ON RECYCLABLES WOULD BECOME EFFECTIVE ON 35 DAYS' NOTICE. 
THE INCREASED PERIOD FOR RECYCLABLES WAS SET SO THAT INTERESTED PARTIES
WOULD HAVE THE OPPORTUNITY TO COMMENT ON THE REPORT.  THE ICC ISSUED AN
ORDER TO THAT EFFECT ON OCTOBER 4, 1972. 

IN RESPONSE TO COMMENTS WHICH WERE FILED BY SEVERAL PARTIES, THE ICC
REOPENED EX PARTE 281 ON NOVEMBER 7, 1972, TO RECONSIDER THE
ENVIRONMENTAL EFFECTS OF THE NEW RATES ON RECYCLABLES IN LIGHT OF A
FULLER WRITTEN CONSIDERATION OF THESE ISSUES.  THE NEW RATES ON
RECYCLABLES WERE SUSPENDED WITH THE CONSENT OF THE RAILROADS FOR AN
ADDITIONAL SEVEN MONTHS UNTIL JUNE 10, 1973. 

ON MARCH 13, 1973, THE ICC SERVED AN EXPANDED DRAFT ENVIRONMENTAL
IMPACT STATEMENT.  COMMENTS WERE THEREAFTER RECEIVED FROM EPA, CEQ, THE
DEPARTMENT OF TRANSPORTATION, ALL OF THE APPELLEES HEREIN, AND OTHERS. 
ON MAY 1, 1973, THE ICC ISSUED A FINAL IMPACT STATEMENT COVERING 150
PRINTED PAGES, WITH AN ADDITIONAL 21-PAGE BIBLIOGRAPHY.  THE MAIN
DIFFERENCE BETWEEN THE OCTOBER 4, 1972, REPORT AND THE IMPACT STATEMENT
WAS THAT THE LATTER SUBSTANTIALLY EXPANDED ON THE DISCUSSION OF THE
UNDERLYING RATE STRUCTURE AND THE EFFECT OF RATE INCREASES ON EACH OF
THE RECYCLING INDUSTRIES.  WITH RESPECT TO THE UNDERLYING RATE
STRUCTURE, THE CONCLUSION, IN THE LIGHT OF THE THEN-AVAILABLE
INFORMATION AND UNDER THE CONTROLLING RATEMAKING PRINCIPLES, WAS THAT
IT DID NOT DISCRIMINATE.  THE STATEMENT EXAMINED FACTORS AFFECTING THE
PRICE OF EACH RECYCLABLE COMMODITY AND FACTORS OTHER THAN PRICE
AFFECTING THE DEMAND FOR SUCH COMMODITIES.  IT WAS AGAIN CONCLUDED THAT
FREIGHT RATE INCREASES AFFECT SUCH DEMAND ONLY NEGLIGIBLY.  THE ICC RE
EMPHASIZED THAT IN GENERAL REVENUE PROCEEDINGS ANALYSIS MIGHT FALL
SHORT OF WHAT MIGHT TRANSPIRE IN OTHER KINDS OF PROCEEDINGS, UNDER 49
U.S.C. SEC. 13 OR IN COMMISSION'S OWN EX PARTE 270, TO WHICH ATTENTION
WAS AGAIN CALLED.  /5/ THE CONCLUSION OF THE ICC WAS THAT ITS ORDER OF
OCTOBER 4 HAD BEEN CORRECT; EX PARTE 281 WAS THEREFORE FINALLY
TERMINATED WITHOUT DECLARING ANY OF THE PROPOSED RATES UNLAWFUL EXCEPT
AS PREVIOUSLY PROVIDED IN THE OCTOBER 4 ORDER.  /6/ 

ON MAY 30, 973, 11 DAYS BEFORE THE INCREASED RATES ON RECYCLABLES
WERE TO BECOME EFFECTIVE, APPELLEES SCRAP AND EDF FILED A MOTION--
APPARENTLY IN THE CONTEXT OF THEIR EARLIER FILED COMPLAINT AGAINST THE
SURCHARGE--FOR A PRELIMINARY INJUNCTION RESTRAINING THE IMPLEMENTATION
OF THE FREIGHT RATE INCREASES WITH RESPECT TO RECYCLABLES.  ON JUNE 7,
1973, THE THREE-JUDGE COURT ENTERED AN ORDER TEMPORARILY ENJOINING THE
RAILROADS FROM COLLECTING THE RATES DECLARING, WITHOUT ANY EXPLANATION
WHATEVER, THAT SUCH ORDER WOULD "NOT SUBSTANTIALLY HARM THE
RAILROADS."  /7/  THE RAILROADS AND THE ICC FILED APPEALS.  ON JUNE 8,
1973, THE CHIEF JUSTICE STAYED THE ORDER UPON THE RAILROADS' MOTION. 
ON JUNE 25, 1973, THE FULL COURT DECLINED TO VACATE THE STAY ON MOTION
BY APPELLEES SCRAP AND EDF, 413 U.S. 917.  THE INCREASES IN RECYCLABLES
WERE THEN PLACED INTO EFFECT AND CONTINUE IN EFFECT TODAY.  ON NOVEMBER
19, 1973, THIS COURT VACATED THE PRELIMINARY INJUNCTION AND REMANDED
THE CASES FOR RECONSIDERATION IN LIGHT OF ATCHISON, T.& S.F.R. CO. V.
WICHITA BD. OF TRADE, 412 U.S. 800 (1973).  414 U.S. 1035.  /8/ 

MEANWHILE, APPELLEES HAD FILED MOTIONS FOR SUMMARY JUDGMENT BEFORE
THE THREE-JUDGE COURT SEEKING (A) A DECLARATION THAT THE ICC'S ORDERS
DECLINING TO DECLARE THE RATE INCREASES UNLAWFUL WERE THEMSELVES
UNLAWFUL BECAUSE THE ENVIRONMENTAL IMPACT STATEMENT WAS INADEQUATE, AND
AN ORDER DIRECTING THE ICC TO RECONSIDER ITS DECISION IN LIGHT OF A
BETTER IMPACT STATEMENT; AND (B) A PERMANENT INJUNCTION RESTRAINING
COLLECTION OF THE RATE INCREASES ON RECYCLABLES BY THE RAILROADS.  OVER
A DISSENT, THE DISTRICT COURT VACATED THE ORDER OF THE ICC TERMINATING
EX PARTE 281 WITHOUT DECLARING THE INCREASES UNLAWFUL AND ORDERED IT TO
PREPARE A NEW IMPACT STATEMENT, HOLD HEARINGS ON THE STATEMENT, AND
RECONDIDER ITS DECISION NOT TO FIND THE RATES UNLAWFUL.  IT DECLINED TO
ENJOIN COLLECTION OF THE RATES IN THE INTERIM.     THE COURT FIRST
REJECTED THE APPLICABILITY OF THE LINE OF LOWER COURT CASES, BEGINNING
WITH ALGOMA COAL & COKE CO. V. UNITED STATES, 11 F.SUPP.  487 (ED VA.
1935), HOLDING DECISIONS OF THE ICC NOT TO DECLARE PROPOSED INCREASED
RATES UNLAWFUL IN GENERAL REVENUE PROCEEDINGS TO BE UNREVIEWABLE.  THE
COURT NOTED THAT THIS COURT HAD DIVIDED EVENLY IN 400 U.S. 73 (1970) IN
AFFIRMING ALTLANTIC CITY ELECTRIC CO. V. UNITED STATES, 306 F.SUPP. 
338 (SDNY 1969), AND ALABAMA POWER CO. V. UNITED STATES, 316 F.SUPP. 
337 (DC 1970), AND THAT THE RULE AGAINST REVIEWABILITY OF GENERAL
REVENUE PROCEEDINGS WAS THEREFORE OF QUESTIONABLE VITALITY--ESPECIALLY
WHERE THE ISSUE PRESENTED FOR REVIEW IS NOT THE REASONABLENESS OF A
PARTICULAR RATE BUT THE GENERAL QUESTION WHETHER THE RAILROADS' REVENUE
NEEDS JUSTIFY ENVIRONMENTAL COSTS.  HOWEVER, THE COURT RESTED ITS
HOLDING ON THE GROUND THAT THIS IS A NEPA CASE.  IT SAID THAT UNLIKE
SHIPPERS, WHO MAY PROPERLY BE MADE TO EXHAUST THEIR REMEDIES UNDER 49
U.S.C. SEC. 13 AND 15 BY SEEKING REFUNDS, ENVIRONMENTAL GROUPS MAY NOT
HAVE SUCH REMEDIES.  MOREOVER, ENVIRONMENTAL ISSUES ARE BETTER
CONSIDERED AT A SINGLE GENERAL REVENUE PROCEEDING THAN AT COUNTLESS
INDIVIDUAL SEC. 13 PROCEEDINGS AND THEIR RESOLUTION MUST BE REVIEWED
PROMPTLY IN ORDER TO AVOID IRREPARABLE DAMAGE TO THE ENVIRONMENT. 
ENVIRONMENTAL DEGRADATION OCCURRING WHILE A SEC. 13 PROCEEDING IS
PENDING IS IRREPARABLE, UNLIKE INJURY TO SHIPPERS WHICH CAN BE CURED BY
REPARATIONS. 

THE COURT THEN FOUND THAT THE ICC HAD FAILED TO COMPLY WITH NEPA IN
TWO RESPECTS.  FIRST, NO ORAL HEARING HAD BEEN HELD AFTER CIRCULATION
OF THE SECOND DRAFT IMPACT STATEMENT ON MARCH 13, 1973, AND BEFORE THE
PREPARATION OF THE FINAL IMPACT STATEMENT.  THE COURT CONCEDED THAT
NEPA DOES NOT REQUIRE THE HOLDING OF HEARINGS WHICH THE AGENCY DOES NOT
OTHERWISE HOLD; AND THAT THE ICC IS NOT REQUIRED TO HOLD HEARINGS IN A
GENERAL REVENUE PROCEEDING, UNITED STATES V. FLORIDE EAST COAST R. CO.,
410 U.A. 224 (1973).  HOWEVER, IT RULED THAT SINCE THE ICC HELD AN ORAL
HEARING BEFORE ADOPTING ITS OCTOBER 4, 1972, REPORT, SUCH A HEARING WAS
THEREFORE PRESUMPTIVELY AN "EXISTING AGENCY REVIEW PROCESS" AND ONE
SHOULD HAVE BEEN HELD BEFORE ADOPTING THE FINAL ENVIRONMENTAL IMPACT
STATEMENT ON MAY 1, 1973.  MOREOVER, THE ICC HAD SIMPLY RECONSIDERED
ITS OCTOBER 4, 1972, DECISION IN LIGHT OF THE IMPACT STATEMENT, INSTEAD
OF STARTING ALL OVER AGAIN FROM THE BEGINNING.  IN ORDER TO START OVER
AGAIN, IT HAD TO CONSIDER ITS IMPACT STATEMENT AT AN ORAL HEARING. 
SECOND, THE COURT CONCLUDED THAT THE REPORT DID NOT GIVE "GOOD FAITH"
CONSIDERATION TO ENVIRONMENTAL FACTORS.  THE COURT VIEWED THE TONE OF
THE IMPACT STATEMENT AS "COMBATIVE, DEFENSIVE AND ADVOCATORY"; IT
CRITICIZED THE ICC FOR REFUSING TO FIND IN NEPA A CONGRESSIONAL
EXPRESSION THAT IT SHOULD INVALIDATE RATES OTHERWISE JUST AND
REASONABLE ON THE GROUND THAT THE RATES WOULD NEGATIVELY AFFECT THE
ENVIRONMENT; AND IT CRITICIZED THE ICC FOR REFUSING TO CHANGE ITS
ANALYSIS EVEN AFTER OTHER GOVERNMENT AGENCIES COMMENTED UNFAVORABLY ON
THE STATEMENT.  IT HELD THE STATEMENT DEFICIENT IN TWO RESPECTS. 
FIRST, IT HELD THAT THE STATEMENT DID NOT SUFFICIENTLY ANALYZE THE
UNDERLYING RATE STRUCTURE AND THAT THE ICC HAD INSTEAD CONSIDERED ONLY
THE IMPACT OF THE INCREASE INVOLVED IN EX PARTE 281.  SECOND, THE ICC
SHOULD HAVE MORE EXTENSIVELY EXPLORED THE QUANTITATIVE RESPONSE OF
RECYCLING BUSINESSES TO FREIGH RATES BY CONDUCTING A "RIGOROUS PRICE
SENSITIVITY STUDY" AND BY ANALYZING WHETHER INDUSTRY WOULD DEVELOP NEW
TECHNOLOGY TO UTILIZE SECONDARY MATERIALS IF ENCOURAGED TO DO SO BY
LOWER TRANSPORTATION COSTS. 

THE COURT THEN VACATED THE ORDERS OF THE ICC, WHICH HAD TERMINATED
EX PARTE 281 WITHOUT DECLARING THE RATE INCREASES UNLAWFUL, AND ORDERED
THE ICC TO PREPARE A NEW IMPACT STATEMENT ANALYZING THE UNDERLYING RATE
STRUCTURE, THE ELASTICITY OF DEMAND FOR RECYCLABLES, AND THE
PROBABILITY OF ENCOURAGING NEW TECHNOLOGY IN THE USE OF SCRAP.  IT
ORDERED THE ICC TO HOLD HEARINGS AFTER CIRCULATING THE NEW IMPACT
STATEMENT AND TO FULLY CONSIDER ANEW IN LIGHT OF THE NEW STATEMENT AND
THE HEARING WHETHER THE INCREASED RATES SHOULD BE DECLARED UNLAWFUL. 
THE COURT DECLINED TO ENJOIN THE COLLECTION OF THE RATES, WHILE
CLAIMING THAT IT COULD HAVE, AND PROBABLY SHOULD HAVE DONE SO,
NOTWITHSTANDING ATCHISON, T.& S.F.R. CO. V. WICHITA BD. OF TRADE,
SUPRA.  /9/ 

THE RAILROADS APPEAL, CLAIMING THAT THE DISTRICT COURT HAD NO
JURISDICTION OVER THIS CASE, AND THAT THE ICC HAD, IN ANY EVENT, FULLY
COMPLIED WITH NEPA.  THE ICC AND THE UNITED STATES APPEAL CLAIMING ONLY
THAT THE ICC HAS FULLY COMPLIED WITH NEPA.  WE NOTED PROBABLE
JURISDICTION IN BOTH CASES.  419 U.S. 822 (1974). 

        II 

AT THE OUTSET WE FACE A CHALLENGE TO OUR APPELLATE JURISDICTION. 
UNDER 28 U.S.C. SEC. 2325, NOW, REPEALED, /10/ A THREE-JUDGE COURT WAS
REQUIRED TO GRANT "(AN INTERLOCUTORY OR PERMANENT INJUNCTION
RESTRAINING THE ENFORCEMENT, OPERATION OR EXECUTION, IN WHOLE OR IN
PART, OF ANY ORDER OF THE INTERSTATE COMMERCE COMMISSION."  TITLE 28
U.S.C. SEC. 1253 GIVES US JURISDICTION TO DETERMINE APPEALS FROM "AN
ORDER GRANTING OR DENYING . . . AN . . . INJUNCTION IN ANY CIVIL ACTION
. . . REQUIRED . . . TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF
THREE JUDGES."  ALL PARTIES AGREE THAT THE ACTION BELOW WAS A CIVIL
ACTION REQUIRED TO BE HEARD AND DETERMINED BY A THREE-JUDGE COURT, FOR
APPELLEES SOUGHT AN INJUNCTION RESTRAINING COLLECTION OF THE INCREASED
RATES WHICH THE ICC HAD REFUSED TO DECLARE UNLAWFUL. 

THE QUESTION UNDER THE STATUTORY LANGUAGE IS WHETHER THE ORDER BEING
APPEALED FROM IS AN "INJUNCTION" WITHIN THE MEANING OF THAT WORD AS
USED IN SEC. 1253.  APPELLEES CLAIM THAT SINCE THE COURT BELOW DECLINED
TO RESTRAIN COLLECTION OF THE INCREASED RATES, ITS ORDER WAS NOT AN
INJUNCTION BUT A DECLARATORY JUDGMENT NOT APPEALABLE UNDER SEC. 1253,
E. G., MITCHELL V. DONOVAN, 398 U.S. 427 (1970); GUNN V. UNIVERSITY
COMMITTEE, 399 U.S. 383 (1970).  BUT THE DISTRICT COURT'S ORDER NOT
ONLY DECLARED THAT THE ICC HAD FAILED TO COMPLY WITH NEPA, IT ALSO
DIRECTED THE ICC TO PERFORM CERTAIN ACTS.  THE ORDER WAS PLAINLY CAST
IN INJUNCTIVE TERMS.  THE ORDER "DIRECTS" THE ICC TO REOPEN EX PARTE
281 AND TO CONDUCT FURTHER PROCEEDINGS WHICH "MUST" INCLUDE PREPARATION
OF AN IMPACT STATEMENT DEALING WITH ENUMERATED ISSUES.  IN DECLINING TO
RESTRAIN COLLECTION OF THE RATES, THE COURT SAID IT WAS DECLINING TO
GRANT "TO PLAINTIFFS ADDITIONAL INJUNCTIVE RELIEF"  (EMPHASIS ADDED). 
WERE THE ORDER OF THE DISTRICT COURT LEFT UNDISTURBED, THE ICC WOULD
HARDLY BE FREE TO DECLINE TO PREPARE A NEW IMPACT STATEMENT OR TO
CONDUCT FURTHER PROCEEDINGS.  THE ORDER WOULD HAVE AS COERCIVE AN
EFFECT ON THE ICC, ITS MEMBERS, AND ITS STAFF, AS COULD ANY ORDER OF A
DISTRICT COURT IN A PROCEEDING TO REVIEW AN ORDER OF THE ICC.  THIS IS
ENOUGH TO BRING THE ORDER OF THE COURT BELOW WITHIN THE MEANING OF THE
WORD "INJUNCTION," AS USED IN SEC. 1253.  /11/ 

IT IS ALSO APPARENT THAT THE DISTRICT COURT'S INJUNCTION RESTRAINED
"THE ENFORCEMENT, OPERATION OR EXECUTION" OF THE ORDER OF THE ICC
WITHIN THE MEANING OF SEC. 2325 AND COULD THEREFORE HAVE BEEN ISSUED
ONLY BY A THREE-JUDGE COURT.  THE ICC ORDER OF OCTOBER 4, 1972,
REAFFIRMED ON MAY 1, 1973, DECLINED TO DECLARE THE GENERAL RATE
INCREASE UNLAWFUL, OR WITH MINOR EXCEPTIONS TO INTERFERE WITH ITS
COLLECTION.  THAT ORDER TERMINATED EX PARTE 281.  THE DISTRICT COURT,
ALTHOUGH IT DID NOT ENJOIN COLLECTION OF THE INCREASED RATES,
EMASCULATED THE ICC ORDER IN MAJOR RESPECTS.  CONTRARY TO THE ORDER OF
THE ICC, EX PARTE 281 WAS TO BE REOPENED AND FURTHER PROCEEDINGS HAD
WITH RESPECT TO THE LEGALITY OF THE INCREASED RATES.  CONTRARY TO THE
ICC ORDER, THE INVIRONMENTAL IMPACT STATEMENT OF THE ICC WAS DECLARED
INSUFFICIENT AND A NEW STATEMENT ORDERED PREPARED.  THE DISTRICT
COURT'S ORDER, AS WE HAVE SAID, WAS IN INJURNCTIVE TERMS; AND IT IS NOT
TENABLE TO ASSERT THAT IT DID NOT INTERFERE WITH THE OPERATIVE EFFECT
OF THE ICC ORDER OF MAY 1, 1973.  /12/

        III 

THE RAILROADS, BUT NOT THE UNITED STATES OR THE ICC, ARGUE THAT THE
DISTRICT COURT HAD NO JURISDICTION TO REVIEW THE DECISION OF THE ICC,
MADE IN A GENERAL REVENUE PROCEEDING, NOT TO DECLARE THE INCREASED
RATES UNLAWFUL.  THE ARGUMENT IS SUPPORTED BY A LONG LINE OF DISTRICT
COURT DECISIONS; SEE, E. G., ALGOMA COAL & COKE CO. V. UNITED STATED,
11 F.SUPP.  487 (ED VA. 1935); KOPPERS CO. V. UNITED STATES, 132
F.SUPP.  159 (WD PA. 1955); FLORIDA CITRUS COMM'N V. UNITED STATES, 144
F.SUPP.  517 (ND FLA. 1956), AFF'D PER CURIAM, 352 U.S. 1021 (1957);
ATLANTIC CITY ELECTRIC CO. V. UNITED STATES, 306 F.SUPP.  338 (SDNY
1969), AND ALABAMA POWER CO. V. UNITED STATES, 316 F.SUPP.  337 (DC
1969), BOTH AFF'D BY AN EQUALLY DIVIDED COURT, 400 U.S. 73 (1970);
ELECTRONIC INDUSTRIES ASSN. V. UNITED STATES, 310 F.SUPP.  1286 (DC
1970), AFF'D, 401 U.S. 967 (1971); AND ITS CORRECTNESS IN ITS
APPLICATION TO THIS CASE TURNS IN PART ON AN UNDERSTANDING OF JUST WHAT
A GENERAL REVENUE PROCEEDING IS.

        A 

UNDER THE INTERSTATE COMMERCE ACT, THE INITIATIVE IN SETTING RATES
REMAINS WITH THE RAILROADS.  SEE SCRAP I, 412 U.S., AT 672.  THE ICC
HAS THE POWER, AFTER EXERCISE OF THIS INITIATIVE BY THE RAILROADS, AND
AFTER AN INVESTIGATION, EITHER UPON ITS OWN INITIATIVE OR UPON
COMPLAINT BY AN INTERESTED PARTY, TO DECLARE A RATE UNLAWFUL IF IT
FINDS THAT THE RATE IS UNJUST, UNREASONABLE, PREFERENTIAL,
DISCRIMINATORY, OR OTHERWISE IN VIOLATION OF THE ACT.  49 U.S.C. SEC.
13 AND 15.  THE ICC, AND ONLY THE ICC, SCRAP I. SUPRA, ALSO HAS THE
POWER TO SUSPEND A NEW RATE FOR UP TO SEVEN MONTHS PENDING ITS
DETERMINATION OF LAWFULNESS.  49 U.S.C. SEC. 15 (7).  /13/ WHERE THE
INCREASE INITIATED BY A RAILRIAD RELATES ONLY TO A SINGLE COMMODITY,
AND WHERE THE ICC CONDUCTS AN INVESTIGATION, THE INVESTIGATION WILL BE
A THOROUGH INQUIRY INTO THE JUSTNESS AND REASONABLENESS OF THAT
PARTICULAR RATE.  HOWEVER, THE REASON FOR INCREASING A PARTICULAR RATE
MAY BE A REASON, SUCH AS ACROSS-THE-BOARD COST INCREASES, WHICH
DICTATES AN INCREASE IN VIRTUALLY ALL RATES BY A LARGE NUMBER OF
RAILROADS.  IN THOSE CASES, THE RAILROADS HAVE, IN THE EXERCISE OF
THEIR INITIATIVE, PROPOSED ACROSS-THE-BOARD INCREASES APPLICABLE TO ALL
OR NEARLY ALL OF THEIR RATES.  THIS COURT IN NEW ENGLAND DIVISIONS
CASE, 261 U.S. 184, 196 - 198 (1923), RECOGNIZING THE PRACTICAL
PROBLEMS WHICH THE ICC FACED IN SUCH A SITUATION, PERMITTED IT TO FIND
THE NEW RATES LAWFUL AFTER TAKING PROOF RELATING NOT TO ANY PARTICULAR
RATE BUT TO THE REASONABLENESS OF THE INCREASES IN GENERAL IN UNITED
STATES V. LOUISIANA, 290 U.S. 70, 76 - 78 (1933), THIS COURT APPROVED
OF AN ICC PROCEDURE WHEREBY IT PERMITTED AN ACROSS-THE-BOARD RATE
INCREASE TO BECOME EFFECTIVE AFTER INVESTIGATION-BY DECLINING TO
DECLARE IT UNLAWFUL, AND INCREASING PREVIOUSLY SET MAXIMA WHERE
NECESSARY--WITHOUT A FINDING THAT EACH NEW RATE WAS LAWFUL AND WITHOUT
ITSELF PRESCRIBING ANY OF THE NEW RATES.  /14/ THIS COURT, AFTER
POINTING OUT THE PRACTICAL IMPOSSIBILITY OF INQUIRING INTO THE
REASONABLENESS OF EACH RATE, STATED: 

"(IN PERFORMING THE DUTY BROADLY TO INCREASE CARRIER REVENUE, IT IS
ENOUGH IF THE COMMISSION, IN THE FIRST INSTANCE, MAKES SUCH INQUIRY AND
INVESTIGATION AS WOULD ENABLE IT TO SAY THAT THE PRESCRIBED INCREASES
WHEN APPLIED TO MEMBERS OF THE GROUP WILL GENERALLY NOT EXCEED A
REASONABLE MAXIMUM."  ID., AT 76 - 77.  (EMPHASIS ADDED.)  THE COURT
WENT ON TO SAY: 

" THE EXTENT OF THIS INQUIRY AND THE DETAIL OF INVESTIGATION CAN NOT
BE MARKED BY THIS COURT WITH CERTAINTY.  THE SIZE OF THE GROUP DEALT
WITH, THE NATURE OF THE TRAFFIC, THE URGENCY OF THE RELIEF DEMANDED,
THESE AND OTHER FACTORS SHOULD CONDITION THE COMMISSION'S PROCEDURE IN
EACH CASE.  BUT WITH PROPER PROCEDURE, THE ULTIMATE FINDING THAT THE
RATES AS GENERALLY APPLIED ARE REASONABLE, SUPPORTED BY EVIDENCE AND
ACCOMPANIED BY SUITABLE RESERVATION OF THE RIGHTS OF ALL INTERESTED
PARTIES TO SECURE MODIFICATION OF ANY PARTICULAR RATE WHICH, WHEN
CHALLENGED, IS FOUND TO BE UNJUST OR UNREASONABLE, COMPLIES WITH THE
STATUTE.  THE REQUIREMENT THAT INCREASE OF RATES BY COMMISSION ACTION
IS TO BE IN THE EXERCISE OF ITS POWER TO PRESCRIBE REASONABLE RATES IS
THUS OBSERVED BUT IN CONFORMITY TO THE ADMINISTRATIVE NECESSITIES WHICH
THE PROVISO CONTEMPLATES."  ##HC313 ID., AT 77.  PROCEEDINGS, SUCH AS
THAT DESCRIBED IN UNITED STATES V. LOUISIANA, IN WHICH THE ICC HAS BEEN
CALLED UPON TO DECIDE WHETHER TO PREVENT A SUBSTANTIALLY ACROSS-THE
BOARD RATE INCREASE, HAVE BECOME KNOWN AS GENERAL REVENUE PROCEEDINGS. 
THE ICC'S INQUIRY HAS TENDED TO FOCUS ON WHETHER THE RAILROADS ARE
REALLY IN NEED OF INCREASE REVENUES AND HAS TENDED TO LEAVE FOR
INDIVIDUAL RATE OR REFUND PROCEEDINGS UNDER 49 U.S.C. SEC. 13 AND 15
THE PROBLEM OF DETERMINING JUST WHICH COMMODITIES ON WHICH RUNS SHOULD
BEAR THE INCREASED BURDEN, AND TO WHAT EXTENT.  THE ICC IS CAREFUL TO
LEAVE SUCH REFUND CLAIMS OPEN BY INCLUDING IN THE GENERAL REVENUE ORDER
A STATEMENT SUCH AS THE ONE INCLUDED HERE: 

" THUS, WE DO NOT ATTEMPT TO DETERMINE WHETHER THE PARTICULAR RATES
WHICH RESULT FROM THE INCREASES ARE MAXIMUM REASONABLE RATES, NOR DOES
THE ORDER CONSTITUTE A PRESCRIPTION OF RATES WITHIN THE MEANING OF THE
DECISION IN ARIZONA GROCERY CO. V. ATCHISON, T. & S.F.RY. CO., 284 U.S.
370.  IF INDIVIDUAL RATES OR GROUPS OF RATES ARE BELIEVED TO BE UNJUST
AND UNREASONABLE, A SHIPPER OR OTHER INTERESTED PERSONS HAS (SIC) AN
ADMINISTRATIVE REMEDY AVAILABLE IN SECTIONS 13 AND 15 OF THE INTERSTATE
COMMERCE ACT, 49 U.S.C. SEC. 13 AND 15."  EX PARTE NO. 281, INCREASED
FREIGHT RATES AND CHARGES, 1972 (ENVIRONMENTAL MATTERS), 346 I.C.C. 88,
103 (1973) (A. 25).     OF COURSE, THE ICC HAS THE POWER IN A GENERAL
REVENUE PROCEEDING TO DECLARE THE NEW RATES UNLAWFUL AND DISAPPROVE THE
INCREASE.  IT COULD ALSO, IF IT CHOSE, DECLARE SOME OF THE RATES
DISCRIMINATORY, UNREASONABLE OR OTHERWISE UNLAWFUL; AND IT COULD ITSELF
AFFIRMATIVELY APPROVE ALL OR SOME OF THE RATES AS JUST AND REASONABLE. 
BUT UNDER THE LOUISIANA CASE, THE GENERAL RULE HAS BEEN THAT THE ICC
MAY CONFINE ITS ATTENTION IN GENERAL REVENUE PROCEEDINGS ALMOST
ENTIRELY TO THE NEED FOR REVENUE AND TO ANY OTHER FACTORS THAT RELATE
TO THE LEGALITY OF THE GENERAL INCREASE AS A WHOLE; AND IT FOLLOWS A
FORTIORI THAT IF ATTENTION IS GIVEN TO OTHER ISSUES, THAT ATTENTION MAY
BE OF A LIMITED NATURE. 

THE INSTANT PROCEEDING, IN WHICH SUBSTANTIALLY ALL OF THIS COUNTRY'S
RAILROADS SOUGHT INCREASES IN SUBSTANTIALLY ALL OF THEIR RATES BASED
UPON ALLEGED COST INCREASES WHICH PLACED THEM IN A FINANCIAL CRISIS,
PLANINLY QUALIFIES AS A GENERAL REVENUE PROCEEDING.  ENVIRONMENTAL
ISSUES ASIDE, THE ICC, TRUE TO FORM, DEVOTED MOST OF ITS INVESTIGATION
TO THE ISSUE OF THE RAILROADS' REVENUE NEEDS, BUT DID INQUIRE TO SOME
EXTENT INTO THE REASONABLENESS OF THE INCREASES AS APPLIED TO CERTAIN
BROAD CATEGORIES OF CHARGES. 

IN ALGOMA COAL & COKE CO. V. UNITED STATES, 11 F.SUPP.  487 (ED VA.
1935), SHIPPERS OF COAL SOUGHT REVIEW IN A THREE-JUDGE COURT OF THE
DECISION OF THE ICC IN A GENERAL REVENUE PROCEEDING NOT TO DECLARE THE
PROPOSED INCREASES UNLAWFUL INSOFAR AS THEY APPLIED TO COAL.  THE CLAIM
WAS THAT THE INCREASED RATES ON COAL WERE UNJUST AND UNREASONABLE.  THE
COURT DECLINED TO SET ASIDE THE RATE INCREASES.  IT POINTED OUT THAT
THE ICC'S ORDER WAS PERMISSIVE ONLY--IT SIMPLY DECLINED TO PREVENT THE
RATE INCREASES.  /15/ IT THEN STATED THAT THE ICC HAD NOT YET DECIDED
WHETHER THE INCREASED RATES ON COAL SPECIFICALLY WERE JUST AND
REASONABLE BUT HAD DECIDED ONLY THAT TAHE RAILROAD'S REVENUE NEEDS
RENDERED THE GENERAL INCREASE REASONABLE; AND THAT THE PLAINTIFFS HAD A
PROCEDURE AVAILABLE TO THEM--A COMPLAINT UNDER SEC. 13 SEEKING A REFUND
AND A DECLARATION OF UNJUSTNESS OR UNREASONABLENESS FROM THE ICC--IN
WHICH IT COULD CAUSE THE ICC TO DECIDE WHETHER THE NEW COAL RATES WERE
JUST AND REASONABLE.  AS THE ICC HAD NOT YET ADDRESSED THE QUESTION
PRESENTED BY THE PLAINTIFFS TO THE COURT, THE COURT DECLINED TO DECIDE
IT.  /16/ THE COURT ALSO HELD THAT THE DECISION OF THE ICC WAS
INESSENCE ONE NOT TO SUSPEND THE RATE INCREASES AND THAT THE COURTS HAD
NO POWER TO SUSPEND IF THE ICC DID NOT DO SO.  BOARD OF RAILROAD
COMM'RS V. GREAT NORTHERN R. CO., 281 U.S. 412 (1930).  SEE ALSO SCRAP
I, SUPRA. 

SINCE THE ALGOMA DECISION, SHIPPERS SEEKING TO UNDO, WITH RESPECT TO
PARTICULAR COMMODITIES, A DECISION BY THE ICC IN A GENERAL REVENUE
PROCEEDING NOT TO DECLARE RATE INCREASES UNLAWFUL, HAVE BEEN UNIFORMLY
UNSUCCESSFUL.  IN THOSE CASES IN WHICH THE SHIPPER CLAIMED ONLY THAT
THE INCREASE ON A PARTICULAR COMMODITY WAS UNJUST OR UNREASONABLE--
WITHOUT ASSRESSING THE QUESTION WHETHER A GENERAL INCREASE OF SOME SORT
WAS JUSTIFIED--THE COURTS HAVE DECLINED TO RULE ON THE ISSUE POSED FOR
THE REASON THAT THE ICC HAD NOT YET ADDRESSED IT.  KOPPERS CO. V.
UNITED STATES, 132 F.SUPP.  159 (WD PA. 1955); FLORIDA CITRUS COMM'N V.
UNITED STATES, 144 F.SUPP.  517 (ND FLA. 19536); ELECTRONIC INDUSTRIES
ASSN. V. UNITED STATES, 310 F.SUPP.  1286 (DC 1970).  IN THOSE CASES IN
WHICH SHIPPERS HAVE ATTACKED THE ICC'S DECISION THAT RATE INCREASES IN
GENERAL WERE JUSTIFIED, THE COURTS, GOING BEYOND THE ALGOMA DECISION,
HAVE DECLINED REVIEW ON THE GROUND THAT THE SHIPPER HAD NOT EXHAUSTED
HIS ADMINISTRATIVE REMEDIES UNDER SEC. 13 AND 15.  ATLANTIC CITY
ELECTRIC CO. V. UNITED STATES, 306 F.SUPP.  338 (SDNY 1969), AND
ALABAMA POWER CO. V. UNITED STATES, 316 F.SUPP.  33M (DC 1969), BOTH
AFF'D BY AN EQUALLY DIVIDED COURT, 400 U.S. 73 (1970). 

        B 

THE RAILROADS CLAIM THAT THE DECISION OF THE COURT BELOW VIOLATES
THE RULE OF THE CASES DISCUSSED ABOVE THAT DECISIONS BY THE ICC IN
GENERAL REVENUE PROCEEDINGS ARE UNREVIEWABLE.  FIRST, THE RAILROADS
ARGUE THAT THE DECISION IN A GENERAL REVENUE PROCEEDING NOT TO DECLARE
RATES UNLAWFUL IS JUST AS MUCH AN INTERIM DECISION--SINCE IT DOES NOT
FINALLY DECIDE THE LAWFULNESS OF ANY PARTICULAR RATE--AS IS A DECISION
NOT TO SUSPEND A PARTICULAR RATE PENDING INVESTIGATION.  SEE ALGOMA
COAL & COKE CO. V. UNITED STATES, SUPRA.  THEREFORE, REVIEW OF THAT
DECISION IS SQUARELY BANNED BY THE COURT'S HOLDING IN SCRAP I, 412 U.S.
669 (1973), THAT THE COURTS HAVE NO POWER TO SUSPEND, OR TO OVERTURN
THE ICC'S DECISION NOT TO SUSPEND, RATES PENDING THE ICC'S FINAL
DETERMINATION OF THEIR LAWFULNESS.  SECOND, TREATING THE DECISION OF
THE COURT BELOW AS THOUGH IT WERE A SUBSTANTIVE REVIEW OF THE ICC'S
ORDER--ADDRESSED TO THE QUESTION WHETHER THE RECORD SUPPORTED THE ICC'S
DECISION NOT TO SUSPEND THE RATES AS TO RECYCLABLES--THE RAILROADS
CONTEND THAT THE COURT BELOW REVIEWED AN ISSUE NOT YET DECIDED FINALLY
BY THE ICC IN VIOLATION OF SETTLED PRINCIPLES OF FINALITY AND
EXHAUSTION OF ADMINISTRATIVE REMEDIES.  /17/ MORE GENERALLY, THE
RAILROADS ATTACK THE CONCLUSION OF THE DISTRICT COURT THAT THE RULE
AGAINST REVIEW OF GENERAL REVENUE PROCEEDINGS DOES NOT APPLY IN " NEPA
CASES" AS BEING SQUARELY CONTRARY TO THIS COURT'S DECISION IN SCRAP I
THAT NEPA DOES NOT EFFECT A CHANGE IN PRE-EXISTING JURISDICTIONAL
RULES.  WE DISAGREE WITH EACH OF THESE ARGUMENTS. 

THE RAILROADS' FIRST ARGUMENT FAILS BECAUSE THE COURT BELOW DID NOT
ENJOIN COLLECTION OF THE RATES.  THE RULE OF ARROW TRANSPORTATION CO.
V. SOUTHERN R. CO., 372 U.S. 658 (1963), AND SCRAP I IS ONE BARRING
COURTS FROM ENTERING DISRUPTIVE INJUNCTIONS AGAINST COLLECTION OF RATES
NOT FINALLY DECLARED LAWFUL OR UNLAWFUL BY THE ICC.  NO SUCH INJUNCTION
IS INVOLVED HERE.  THUS EVEN IF A DECISION NOT TO DECLARE RATES
UNLAWFUL IN A GENERAL REVENUE PROCEEDING IS NO MORE FINAL FOR PURPOSES
OF THE RULE OF SCRAP I THAN A DECISION NOT TO SUSPEND AN INDIVIDUAL
RATE PENDING INVESTIGATION, THE RULE OF SCRAP I IS NOT APPLICABLE
HERE. 

THE RAILROADS' SECOND ARGUMENT FAILS BECAUSE, UNLIKE THE ISSUE OF
THE REASONABLENESS OF A PARTICULAR RATE, AND ARGUABLY UNLIKE THE ISSUE
OF THE REASONABLENESS OF A GENERAL INCREASE, /18/ THE ISSUE ADDRESSED
BY THE COURT BELOW HAD ALREADY BEEN FINALLY DECIDED BY THE ICC AND THE
RELIEF SOUGHT FROM AND GRANTED BY THE COURT BELOW COULD NOT HAVE BEEN
OBTAINED FROM THE ICC IN A SUBSEQUENT SEC. 13 PROCEEDING.  THE ISSUE
DECIDED BY THE DISTRICT COURT WAS WHETHER UNDER NEPA THE ICC HAD GIVEN
ADEQUATE CONSIDERATION TO ENVIRONMENTAL FACTORS IN THE GENERAL REVENUE
PROCEEDING.  WHEN THE ICC TERMINATED THE GENERAL REVENUE PROCEEDING,
THE ONE THING WHICH IT MUST CERTAINLY HAVE FINALLY DECIDED WAS THAT IT
NEED GIVE NO FURTHER CONSIDERATION TO ENVIRONMENTAL FACTORS IN THAT
PROCEEDING; AND NO RELIEF OF THE TYPE SOUGHT FROM THE DISTRICT COURT-
I. E., FURTHER CONSIDERATION OF ENVIRONMENTAL MATTERS BY THE AGENCY IN
THAT PROCEEDING--COULD THEREAFTER BE OBTAINED FROM THE AGENCY. 
WHATEVER ISSUES WOULD REMAIN OPEN AT A SEC. 13 PROCEEDING, ONE WHICH
WOULD NOT REMAIN OPEN--NO MATTER WHO FILED THE COMPLAINT--IS WHETHER OR
NOT SUFFICIENT CONSIDERATION HAD BEEN GIVEN TO ENVIRONMENTAL FACTORS AT
THE GENERAL REVENUE PROCEEDING.  OF COURSE, THE ICC WOULD GIVE
ATTENTION IN THE SEC. 13 PROCEEDING TO WHATEVER ENVIRONMENTAL FACTORS
IT FELT NEPA REQUIRES AT THAT PROCEEDING. 

ALTHOUGH THE RAILROADS CLAIM THAT A GENERAL REVENUE PROCEEDING IS AN
INTERIM PROCEEDING--THE FINAL ONE BEING A SEC. 13 PROCEEDING AT WHICH
PARTICULAR RATES ARE ADJUDICATED JUST AND REASONABLE--FOR RATEMAKING
PURPOSES, THEY DO NOT CLAIM THAT IT HAS A SIMILAR STATUS FOR NEPA
PURPOSES.  ALL PARTIES NOW AGREE THAT A GENERAL REVENUE PROCEEDING IS
ITSELF A "MAJOR FEDERAL ACTION," INDEPENDENT OF ANY LATER ADJUDICATION
OF THE REASONABLENESS OF PARTICULAR RATES, REQUIRING ITS OWN FINAL
ENVIRONMENTAL IMPACT STATEMENT SO LONG AS THE PROCEEDING HAS A
SUBSTANTIAL EFFECT ON THE ENVIRONMENT.  THIS CONCLUSION IS CLEARLY
CORRECT.  THUS, WHATEVER CONSIDERATION OF ENVIRONMENTAL MATTERS IS
NECESSARY OR PROPER AT THE GENERAL REVENUE PROCEEDING IS OVER AND DONE
WITH WHEN THAT PROCEEDING TERMINATES.  THE INTERIM NATURE OF A GENERAL
REVENUE PROCEEDING MAY BE RELEVANT TO THE QUESTION OF THE EXTENT OF THE
CONSIDERATION OF ENVIRONMENTAL FACTORS REQUIRED, BUT ITS NATURE DOES
NOT PREVENT REVIEW OF THE QUESTION, FINALLY DECIDED BY THE ICC, WHETHER
THE ENVIRONMENTAL IMPACT STATEMENT PREPARED FOR THAT PROCEEDING IS
ADEQUATE. 

OUR HOLDING HERE IS IN NO WAY INCONSISTENT WITH OUR CONCLUSION IN
SCRAP I THAT NEPA DOES NOT REPEAL BY IMPLICATION ANY OTHER STATUTE.  WE
DO NOT HOLD THAT NEPA SUPPLIES THE COURTS WITH OTHERWISE NONEXISTENT
POWER TO PREVENT COLLECTION OF RATES; AND WE DO NOT HOLD THAT NEPA
PERMITS REVIEW OF THE QUESTION OF THE JUSTNESS OR REASONABLENESS OF
RATE INCREASES, EITHER GENERAL OR SPECIFIC, AT ANY EARLIER TIME THAN
WOULD OTHERWISE HAVE BEEN PERMISSIBLE.  NEPA DOES CREATE A DISCRETE
PROCEDURAL OBLIGATION ON GOVERNMENT AGENCIES TO GIVE WRITTEN
CONSIDERATION OF ENVIRONMENTAL ISSUES IN CONNECTION WITH CERTAIN MAJOR
FEDERAL ACTIONS AND A RIGHT OF ACTION IN ADVERSELY AFFECTED PARTIES TO
ENFORCE THAT OBLIGATION.  WHEN AGENCY OR DEPARTMENTAL CONSIDERATION OF
ENVIRONMENTAL FACTORS IN CONNECTION WITH THAT "FEDERAL ACTION" IS
COMPLETE, NOTIONS OF FINALITY AND EXHAUSTION DO NOT STAND IN THE WAY OF
JUDICIAL REVIEW OF THE ADEQUACY OF SUCH CONSIDERATION, EVEN THOUGH
OTHER ASPECTS OF THE RATE INCREASE ARE NOT RIPE FOR REVIEW. 

IV 

WE AGREE WITH APPELLANTS THAT THE DISTRICT COURT ERRED IN DECIDING
THAT THE ORAL HEARING WHICH THE ICC CHOSE TO HOLD PRIOR TO ITS OCTOBER
4, 1972, ORDER WAS AN "EXISTING AGENCY REVIEW PROCESS" DURING WHICH A
FINAL DRAFT ENVIRONMENTAL IMPACT STATEMENT (I. E., THE ONE CIRCULATED
IN MARCH 1973) SHOULD HAVE BEEN AVAILABLE AND THAT IT ALSO ERRED IN
DECIDING THAT THE ICC SHOULD HAVE "STARTED OVER AGAIN" AFTER IT DECIDED
TO PREPARE A FORMAL IMPACT STATEMENT. 

NEPA PROVIDES THAT "SUCH STATEMENT . . . SHALL ACCOMPANY THE
PROPOSAL THROUGH THE EXISTING AGENCY REVIEW PROCESSES" (EMPHASIS
ADDED).  THIS SENTENCE DOES NOT, CONTRARY TO THE DISTRICT COURT
OPINION, AFFECT THE TIME WHEN THE "STATEMENT" MUST BE PREPARED.  IT
SIMPLY SAYS WHAT MUST BE DOEN WITH THE "STATEMENT" ONCE IT IS PREPARED-
IT MUST ACCOMPANY THE "PROPOSAL."  THE "STATEMENT" REFERRED TO IS THE
ONE REQUIRED TO BE INCLUDED "IN EVERY RECOMMENDATION OR REPORT ON
PROPOSALS FOR.  . . MAJOR FEDERAL ACTIONS SIGNIFICANTLY AFFECTING THE
QUALITY OF THE HUMAN ENVIRONMENT" AND IS APPARENTLY THE FINAL IMPACT
STATEMENT, FOR NO OTHER KIND OF STATEMENT IS MENTIONED IN THE STATUTE. 
UNDER THIS SENTENCE OF THE STATUTE, THE TIME AT WHICH THE AGENCY MUST
PREPARE THE FINAL "STATEMENT" IS THE TIME AT WHICH IT MAKES A
RECOMMENDATION OR REPORT ON A PROPOSAL FOR FEDERAL ACTION.  WHERE AN
AGENCY INITIATES FEDERAL ACTION BY PUBLISHING A PROPOSAL AND THEN
HOLDING HEARINGS ON THE PROPOSAL, THE STATUTE WOULD APPEAR TO REQUIRE
AN IMPACT STATEMENT TO BE INCLUDED IN THE PROPOSAL AND TO BE CONSIDERED
AT THE HEARING.  HERE, HOWEVER, UNTIL THE OCTOBER 4, 1972, REPORT, THE
ICC HAD MADE NO PROPOSAL, RECOMMENDATION OR REPORT.  THE ONLY PROPOSAL
WAS THE PROPOSED NEW RATES FILED BY THE RAILROADS.  /19/ THUS, THE
EARLIEST TIME AT WHICH THE STATUTE REQUIRED A STATEMENT WAS THE TIME OF
THE ICC'S REPORT OF OCTOBER 4, 1972--SOMETIME AFTER THE ORAL HEARING. 
/20/ 

THE STATUTE ALSO REQUIRES THAT AGENCIES CONSULT WITH OTHER
ENVIRONMENTALLY EXPERT AGENCIES "PRIOR TO MAKING ANY DETAILED
STATEMENT"; AND CEQ GUIDELINES PROVIDE THAT: 

     " TO THE FULLEST EXTENT POSSIBLE, ALL . . . HEARINGS (ON

  PROPOSED AGENCY ACTION) SHALL INCLUDE CONSIDERATION OF THE

  ENVIRONMENTAL ASPECTS OF THE PROPOSED ACTION . . . . AGENCIES

  SHOULD MAKE ANY DRAFT ENVIRONMENTAL (IMPACT) STATEMENTS TO BE

  ISSUED AVAILABLE TO THE PUBLIC AT LEAST FIFTEEN (15) DAYS PRIOR

  TO THE TIME OF SUCH HEARINGS."  40 CFR SEC. 1500.7 (D). 
(EMPHASIS

  ADDED.) 

SUCH CONSULTATION OCCURRED HERE FROM THE OUTSET; ENVIRONMENTAL ISSUES
PERVADED THE HEARINGS HELD--BOTH ORAL AND WRITTEN; AND ALL DRAFT IMPACT
STATEMENTS IN EXISTENCE WERE CIRCULATED BEFOR THE HEARINGS. 
PROCEDURALLY, NEPA WAS THUS THOROUGHLY COMPLIED WITH THROUGH OCTOBER 4,
1972. 

ASSUMING THAT THE ICC ERRED IN FAILING TO PREPARE A SEPARATE FORMAL
ENVIRONMENTAL IMPACT STATEMENT TO ACCOMPANY ITS OCTOBER 4, 1972, REPORT
OR THAT THE CONSIDERATION GIVEN TO ENVIRONMENTAL FACTORS IN THAT REPORT
WAS INADEQUATE, THE ICC NEED NOT HAVE "STARTED OVER AGAIN."  TO THE
EXTENT THAT THE DISTRICT COURT'S CONCLUSION TO THE CONTRARY IS BASED ON
ITS BELIEF THAT THE DRAFT STATEMENT OF MARCH 1973 HAD TO BE CONSIDERED
AT A HEARING, IT IS INCORRECT FOR THE REASONS STATED ABOVE.  TO THE
EXTENT THAT IT IS BASED ON THE DISTRICT COURT'S BELIEF THAT THE ICC DID
NOT IN GOOD FAITH RECONSIDER ITS OCTOBER 48 1972, ORDER IN LIGHT OF THE
IMPACT STATEMENT, THE DISTRICT COURT'S DECISION IS WITHOUT SUPPORT IN
THE RECORD.  THE ICC WAS IN AS GOOD A POSITION TO CORRECT A STATUTORY
ERROR BY INTEGRATING ENVIRONMENTAL FACTORS INTO ITS REOPENED EX PARTE
281 AND INTO ITS DECISION IN MAY 1973, AS IT WOULD HAVE BEEN IF THE
OCTOBER 4, 1972, REPORT HAD NEVER BEEN WRITTEN; THIS IT PROCEEDED TO DO
AND WE PERCEIVE NO BASIS FOR AFFIRMING THE DISTRICT COURT'S DECISION IN
THIS RESPECT.              V 

EMPHASIZING AGAIN THE NONFINAL AND LIMITED NATURE OF THE DECISION
MADE BY THE ICC AT A GENERAL REVENUE PROCEEDING, THE RAILROADS AND THE
ICC ARGUE THAT THE DISTRUCT COURT ERRED IN CONCLUDING THAT THE
ENVIRONMENTAL IMPACT STATEMENT ITSELF WAS DEFICIENT.  THEY CLAIM THAT
THROUGHOUT THE GENERAL REVENUE PROCEEDING THE COMMISSION GAVE
ENVIRONMENTAL ISSUES THE "HARD LOOK" WHICH IS REQUIRED BY NEPA, NATURAL
RESOURCES DEFENSE COUNCIL, INC. V. MORTON, 148 U.S.APP.  D.C. 5, 16,
458 F.2D 827, 838 (1972), AND THAT APPELLEES AND THE COURT BELOW SIMPLY
DISAGREED WITH THEIR DECISION NOT TO PREVENT THE INCREASE ON
RECYCLABLES.  THEY ALSO EMPHASIZE THE FACT THAT THEY WERE GIVING
CONTINUING AND MORE EXTENSIVE ATTENTION TO ENVIRONMENTAL CONSEQUENCES
FLOWING FROM THE RATE STRUCTURE IN ANOTHER PROCEEDING, EX PARTE 270,
WHICH WAS MORE APPROPRIATE TO THE TASK.  WE SUBSTANTIALLY AGREE WITH
THIS POSITION.  IN ORDER TO DECIDE WHAT KIND OF AN ENVIRONMENTAL IMPACT
STATEMENT NEED BE PREPARED, IT IS NECESSARY FIRST TO DESCRIBE
ACCURATELY THE "FEDERAL ACTION" BEING TAKEN.  THE ACTION TAKEN HERE WAS
A DECISION--ENTIRELY NONFINAL WITH RESPECT TO PARTICULAR RATES--NOT TO
DECLARE UNLAWFUL /21/ A PERCENTAGE INCREASE WHICH ON ITS FACE APPLIED
EQUALLY TO VIRGIN AND SOME RECYCLABLE MATERIALS AND WHICH ON ITS FACE
LIMITED THE INCREASE PERMITTED ON OTHER RECUCLABLES.  AS IN MOST
GENERAL REVENUE PROCEEDINGS, THE "ACTION" WAS TAKEN IN RESPONSE TO THE
RAILROADS' CLAIM OF A FINANCIAL CRISIS; AND THE INQUIRY, TRUE TO OUR
DECISION IN UNITED STATES V. LOUISIANA, SUPRA, WAS PRIMARILY INTO THE
QUESTION WHETHER SUCH A CRISIS--USUALLY THOUGHT TO ENTITLE THE
RAILROADS TO THE GENERAL INCREASE--EXISTED, LEAVING PRIMARILY TO MORE
APPROPRIATE FUTURE PROCEEDINGS THE TASK OF ANSWERING CHALLENGES TO
RATES ON INDIVIDUAL COMMODITIES OR CATEGORIES THEREOF.  /22/ THE POINT
IS THAT IT IS THE LATTER QUESTION--USUALLY INVOLVED IN A GENERAL
REVENUE PROCEEDING ONLY TO A LIMITED EXTENT--WHICH MAY RAISE THE MOST
SERIOUS ENVIRONMENTAL ISSUES.  THE FORMER QUESTION--THE ENTITLEMENT OF
THE RAILROADS TO SOME KIND OF A GENERAL RATE INCREASE--RAISES FEW
ENVIRONMENTAL ISSUES AND NONE WHICH IS CLAIMED IN THIS CASE TO HAVE
BEEN INADEQUATELY ADDRESSED IN THE IMPACT STATEMENT. 

THE APPELLEES INSIST THAT THE DECISION NOT TO PREVENT THE FACIALLY
NEUTRAL INCREASES ITSELF INVOLVES AN IMPACT ON THE ENVIRONMENT WHEN
SUPERIMPOSED ON AN UNDERLYING RATE STRUCTURE WHICH DISCRIMINATES
AGAINST RECYCLABLES.  /23/ THEY CLAIM THAT THE UNDERLYING RATE
STRUCTURE INVOLVED HERE DOES DISCRIMINATE AGAINST RECYCLABLES WITH
SERIOUS ENVIRONMENTAL CONSEQUENCES AND THAT UPON MORE EXTENSIVE
CONSIDERATION OF THE ISSUE, THE ICC HAS IN SOME PART AT LEAST AGREED
WITH THEM AND ACTED ACCORDINGLY IN SUBSEQUENT GENERAL REVENUE
PROCEEDINGS.  /24/ ACCORDINGLY, IT IS SAID, THE ENVIRONMENTAL
CONSEQUENCES FLOWING FROM A FACIALLY NEUTRAL INCREASE MUST BE EXPLORED
IN AN IMPACT STATEMENT AND CAN ONLY BE EXPLORED BY ANALYZING THE
UNDERLYING RATE STRUCTURE.  THEY FURTHER ARGUE WITH FORCE AND SOME
SUPPORT IN THE RECORD THAT THE ICC HAS BEEN TARDY IN COMPLYING WITH
NEPA, THAT THE ICC WAS REQUIRED TO ANLAYZE THE UNDERLYING RATE
STRUCTURE ONLY ONCE WITH A VIEW TOWARD ENVIRONMENTAL CONSEQUENCES; /25/
THAT IT HAD PLENTY OF TIME AND CAUSE TO DO SO BEFORE EX PARTE 281; AND
THAT IT SHOULD, THEREFORE, NOT HAVE BEEN PERMITTED TO TERMINATE EX
PARTE 281 WITHOUT HAVING DONE SO.  THIS ARGUMENT, HOWEVER, STUMBLES
OVER THE HOLDING IN UNITED STATES V. LOUISIANA, SUPRA, WHICH GIVES THE
ICC WIDE DISCRETION IN DECIDING WHAT ISSUES TO ADDRESS IN A GENERAL
REVENUE PROCEEDING AND PERMITS IT TO POSTPONE COMPREHENSIVE
CONSIDERATION OF CLAIMS OF DISCRIMINATION.  IT LOSES VIRTUALLY ALL OF
ITS FORCE IN LIGHT OF THE FACT THAT THE ICC HAD BEGUN AN INVESTIGATION
OF THE UNDERLYING RATE STRUCTURE IN EX PARTE 270 BEFORE COMMENCING EX
PARTE 281 AND HAD STARTED DEVOTING SPECIFIC ATTENTION TO ENVIRONMENTAL
ISSUES IN THAT PROCEEDING BEFORE THE DECISION OF THE COURT BELOW.  THUS
EVEN IF NEPA--IN THE FACE OF UNITED STATES V. LOUISIANA AND THE FAILURE
OF THE APPELLEES TO INITIATE A PROCEEDING UNDER SEC. 13 CHALLENGING
RATES ON RECYCLABLES--WERE READ TO REQUIRE THE ICC TO ADDRESS
COMPREHENSIVELY THE UNDERLYING RATE STRUCTURE AT LEAST ONCE BEFORE
APPROVAL OF A FACIALLY NEUTRAL GENERAL RATE INCREASE, NO PURPOSE COULD
HAVE BEEN SERVED BY ORDERING IT TO THOROUGHLY EXPLORE THE QUESTION IN
THE CONFINED AND INAPPROPRIATE CONTEXT OF A RAILROAD PROPOSAL FOR A
GENERAL RATE INCREASE WHEN IT WAS ALREADY DOING SO IN A MORE
APPROPRIATE PROCEEDING.  THE RATE INCREASES WILL REMAIN EFFECTIVE IN
ANY EVENT UNTIL SUCH TIME AS THE ICC OBTAINS SUFFICIENTINFORMATION TO
DECLARE THE INCREASE ON SOME COMMODITIES LAWFUL OR UNLAWFUL.  /26/ 

THE DECISION OF THE LOWER COURT, THEREFORE, TO DEEM THE "FEDERAL
ACTION" INVOLVED IN EX PARTE 281 TO INCLUDE AN IMPLICIT APPROVAL OF THE
UNDERLYING RATE STRUCTURE WAS INACCURATE AND LED IT TO AN ENTIRELY
UNWARRANTED INTRUSION INTO AN APPARENTLY SENSIBLE DECISION BY THE ICC
TO TAKE MUCH MORE LIMITED "ACTION" IN THAT PROCEEDING AND TO UNDERTAKE
THE LARGER ACTION IN A SEPARATE PROCEEDING BETTER SUITED TO THE TASK. 
/27/ 

HAVING DEFINED THE SCOPE OF THE "FEDERAL ACTION" BEING TAKEN IN EX
PARTE 281, OUR DECISION OF THIS CASE BECOMES EASY.  THE LOWER COURT
HELD THAT THE ENVIRONMENTAL IMPACT STATEMENT INADEQUATELY EXPLORED THE
UNDERLYING RATE STRUCTURE AND INADEQUATELY EXPLORED THE EXTENT TO WHICH
THE USE OF RECYCLABLES WILL BE AFFECTED BY THE RATE STRUCTURE. 
WHATEVER THE RESULT WOULD HAVE BEEN IF THE ICC HAD BEEN APPROVING THE
ENTIRE RATE STRUCTURE IN EX PARTE 281, /28/ GIVEN THE NATURE OF THE
ACTION TAKEN BY THE ICC, THE LOWER COURT WAS PLAINLY INCORRECT. 

A REVIEW OF THE RECORD DISCLOSES THAT ENVIRONMENTAL ISSUES PERVADED
THE PROCEEDING.  IN TERMS OF TIME, PAPER, AND EFFORT ON THE PART OF THE
COMMISSION, THE RAILROADS, OTHER GOVERNMENT AGENCIES, AND THE
APPELLEES, THE ENVIRONMENTAL ISSUES FAR OUTWEIGHED THE FINANCIAL ISSUE
USUALLY THOUGHT CONTROLLING AT A GENERAL REVENUE PROCEEDING.  THE
VARIOUS STATEMENTS, FORMAL AND INFORMAL, EXPRESSLY RECOGNIZED WHAT ALL
AGREE ARE THE IMPORTANT POSSIBLE ENVIRONMENTAL CONSEQUENCES INVOLVED--
INCREASED SOLID WASTE DISPOSAL AND ACCELERATED DEPLETION OF NATURAL
RESOURCES.  THE STATEMENTS IMPLICITLY RECOGNIZED THE COMMON-SENSE
PROPOSITION THAT DECISIONS TO INCREASE RATES ON RECYCLABLES COULD DETER
THEIR USE.  THE REPORTS EXPLORED AT SOME LENGTH THE DEGREE TO WHICH
RATE CHANGES WOULD AFFECT THE USE OF SEVERAL SEPARATE CATEGORIES OF
RECYCLABLES, LOOKING, INTER ALIA, AT PAST RESPONSES TO RATE CHANGES AND
AT VARIOUS OTHER FACTORS AFFECTING USE OF RECYCLABLES INCLUDING
TECHNOLOGICAL ASPECTS OF THE DIFFERENT RECYCLING INDUSTRIES.  FINALLY,
THE STATEMENTS INQUIRED, PRELIMINARILY, INTO THE FAIRNESS OF THE
UNDERLYING RATE STRUCTURE, CONCLUDING THAT ON THE BASIS OF THE
INFORMATION THEN AVAILABLE NO DISCRIMINATION COULD BE FOUND.  ASSUMING
THAT SOME RUDIMENTARY EXAMINATION INTO THE UNDERLYING RATE STRUCTURE
AND INTO THE REASONABLENESS OF THE NEW RATES ON PARTICULAR RECYCLABLES
WAS REQUIRED, THE CONSIDERATION OF ENVIRONMENTAL FACTORS IN CONNECTION
THEREWITH WAS MORE THAN ADEQUATE.  APPELLEES' BEST ARGUMENT IS THAT THE
ICC HAS ACQUIRED MORE KNOWLEDGE SINCE EX PARTE 281, AND HAS CHANGED ITS
MIND ON A NUMBER OF MATTERS AND ACTED ACCORDINGLY.  THIS, HOWEVER,
SIMPLY POINTS UP THE LIMITED NATURE OF THE DECISION MADE IN EX PARTE
281 AND THE ABSENCE OF A NEED TO REOPEN IT.

                                  REVERSED. 

/1/ THE TERM RECYCLABLES WILL REFER THROUGHOUT THIS OPINION TO
MATERIALS OBTAINED FROM PRODUCTS WHICH HAVE ALREADY BEEN PUT TO ONE
COMMERCIAL USE--FOR EXAMPLE, IRON OR STEEL OBTAINED FROM A JUNKED
AUTOMOBILE. 

/2/ "(ALL AGENCIES OF THE FEDERAL GOVERNMENT SHALL 

"( UTILIZE A SYSTEMATIC, INTERDISCIPLINARY APPROACH WHICH WILL
INSURE THE INTEGRATED USE OF THE NATURAL AND SOCIAL SCIENCES AND THE
ENVIRONMENTAL DESIGN ARTS IN PLANNING AND IN DECISIONMAKING WHICH MAY
HAVE AN IMPACT ON MAN'S ENVIRONMENT; 

"(B) IDENTIFY AND DEVELOP METHODS AND PROCEDURES, IN CONSULTATION
WITH THE COUNCIL ON ENVIRONMENTAL QUALITY . . ., WHICH WILL INSURE THAT
PRESENTLY UNQUANTIFIED ENVIRONMENTAL AMENITIES AND VALUES MAY BE GIVEN
APPROPRIATE CONSIDERATION IN DECISIONMAKING ALONG WITH ECONOMIC AND
TECHNICAL CONSIDERATIONS; 

"(C) INCLUDE IN EVERY RECOMMENDATION OR REPORT ON PROPOSALS FOR
LEGISLATION AND OTHER MAJOR FEDERAL ACTIONS SIGNIFICANTLY AFFECTING THE
QUALITY OF THE HUMAN ENVIRONMENT, A DETAILED STATEMENT BY THE
RESPONSIBLE OFFICIAL ON-- 

"(I) THE ENVIRONMENTAL IMPACT OF THE PROPOSED ACTION, 

"(II) ANY ADVERSE ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED
SHOULD THE PROPOSAL BE IMPLEMENTED, 

"(III) ALTERNATIVES TO THE PROPOSED ACTION, 

"(IV) THE RELATIONSHIP BETWEEN LOCAL SHORT-TERM USES OF MAN'S
ENVIRONMENT AND THE MAINTENANCE AND ENHANCEMENT OF LONG-TERM
PRODUCTIVITY, AND 

"(V) ANY IRREVERSIBLE AND IRRETRIEVABLE COMMITMENTS OF RESOURCES
WHICH WOULD BE INVOLVED IN THE PROPOSED ACTION SHOULD IT BE
IMPLEMENTED. 

" PRIOR TO MAKING ANY DETAILED STATEMENT, THE RESPONSIBLE FEDERAL
OFFICIAL SHALL CONSULT WITH AND OBTAIN THE COMMENTS OF ANY FEDERAL
AGENCY WHICH HAS JURISDICTION BY LAW OR SPECIAL EXPERTISE WITH RESPECT
TO ANY ENVIRONMENTAL IMPACT INVOLVED.  COPIES OF SUCH STATEMENT AND THE
COMMENTS AND VIEWS OF THE APPROPRIATE FEDERAL, STATE, AND LOCAL
AGENCIES, WHICH ARE AUTHORIZED TO DEVELOP AND ENFORCE ENVIRONMENTAL
STANDARDS, SHALL BE MADE AVAILABLE TO THE PRESIDENT, THE COUNCIL ON
ENVIRONMENTAL QUALITY AND TO THE PUBLIC AS PROVIDED BY SECTION 552 OF
SHALL ACCOMPANY THE PROPOSAL THROUGH THE EXISTING AGENCY REVIEW
PROCESSES . . . ." 

/3/ NONE OF THE APPELLEES NOR THE COURT BELOW FAULT THE ICC'S
ANALYSIS OF THIS PROBLEM.  IT HAS, THEREFORE, DROPPED OUT OF THE CASE. 

/4/ THE INCREASES WITH RESPECT TO FERROUS SCRAP WERE NOT HELD DOWN. 

/5/ FOLLOWING THE FORM IMPLIED BY THE STATUTE, THE STATEMENT
INCLUDED SEPARATE SECTIONS FOR EACH OF THE QUESTIONS SET FORTH IN 42
U.S.C. SEC. 4332 (2) (C) (I)-(V).  THE STATEMENT CONCLUDED THAT THE
ICC'S ACTION WOULD HAVE NO LONG-TERM OR IRREVERSIBLE EFFECTS.  IT ALSO
CONCLUDED THAT, AS AN ALTERNATIVE, CONGRESS MIGHT CHOOSE TO SUBSIDIZE
RECYCLABLES IN WAYS WHICH DID NOT PLACE THE BURDEN OF SUCH SUBSIDY ON
THE RAILROADS OR SHIPPERS OF VIRGIN MATERIALS. 

/6/ COMMISSIONER BROWN FELT THAT THE STATEMENT GAVE AMPLE
CONSIDERATION TO ENVIRONMENTAL MATTERS BUT THAT THE COMMISSION SHOULD
HAVE DECIDED, ON THE BASIS OF THE STATEMENT, TO DECLARE ALL INCREASES
ON RECYCLABLES UNLAWFUL.  COMMISSIONER DEASON ALSO DISSENTED. 

/7/ UNDER THE INTERSTATE COMMERCE ACT, INCREASED RATES WHICH ARE
SUSPENDED WILL NEVER BE COLLECTED FOR THE PERIOD OF THE SUSPENSION. 
INCREASED RATES WHICH ARE COLLECTED ARE SUBJECT TO REFUND IF LATER
DETERMINED TO BE UNLAWFUL.  49 U.S.C. SEC. 15 (7), 13. 

/8/ IN WICHITA, THE ICC HAD APPROVED CERTAIN INCREASED CHARGES
PROPOSED BY THE RAILROAD.  FINDING THE REASONS GIVEN BY THE COMMISSION
FOR ITS APPROVAL TO BE INADEQUATE TO EXPLAIN A DEPARTURE FROM A
LONGSTANDING RULE WHICH WOULD HAVE INVALIDATED THE CHARGES, THE
DISTRICT COURT VACTED THE COMMISSION'S ORDER, REMANDED FOR FURTHER
PROCEEDINGS, AND ENJOINED THE COLLECTION OF THE INCREASED CHARGES
PENDING SUCH PROCEEDINGS.  SEVEN JUSTICES OF THIS COURT VOTED TO
REVERSE THE GRANTING OF THE INJUNCTIVE RELIEF, FOUR ON THE BASIS OF
EQUITABLE CONSIDERATIONS RELATED TO THE DOCTRINE OF PRIMARY
JURISDICTION AND THREE ON THE GROUND THAT SUCH RELIEF IS BARRED BY THE
DOCTRINE OF ARROW TRANSPORTATION CO. V. SOUTHERN R. CO., 372 U.S. 658
(1963), SEE DISCUSSION, SUPRA, AT 298 ABSENT A DECLARATION OF
UNLAWFULNESS BY THE COMMISSION. 

/9/ IN LIGHT OF THE FACT THAT THE COURT REMANDED TO THE ICC FOR
FURTHER PROCEEDINGS AS TO THE LAEFULNESS OF THE INCREASE, INJUNCTIVE
RELIEF WAS PRECLUDED BY SCRAP I, WHICH HELD THAT THE DISTRICT COURTS
ARE WITHOUT POWER TO SUSPEND RATES PENDING A DETERMINATION OF
LAWFULNESS BY THE ICC. 

/10/ AFTER FEBRUARY 28, 1975, REVIEW OF ICC ORDERS OTHER THAN ORDERS
FOR THE PAYMENT OF MONEY OR IN CONNECTION WITH SUITS TO ENFORCE ICC
ORDERS WILL BE BY COURTS OF APPEALS.  PUB. L. 93 - 584, SEC. 5, 88
STAT. 1917. 

/11/ APPELLEES ARGUE THAT THE ORDER OF THE COURT BELOW IS NOT AN
INJUNCTION BECAUSE IT IS NOT ENFORCEABLE BY CONTEMPT.  THEY CITE
NOTHING TO SUPPORT THIS CLAIM AND REJECT IT.  THE COURT ORDERED THE
ICC, INTER ALIA, TO PREPARE ANOTHER IMPACT STATEMENT.  WERE THE ICC TO
REFUSE TO DO SO, THE COURT WOULD HAVE NO WAY OF ENFORCING ITS ORDER
OTHE THAN CONTEMPT, AND IT COULD NOT PERMIT ITS ORDER TO BE IGNORED. 
MOREOVER, WE HAVE REPEATEDLY EXERCISED JURISDICTION UNDER SEC. 1253
OVER APPEALS FROM ORDERS, UNLIKE THE ONE ENTERED IN THIS CASE, NOT CADT
IN INJUNCTIVE LANGUAGE BUT WHICH BY THEIR TERMS SIMPLY "SET ASIDE" OR
DECLINED TO "SET ASIDE" ORDERS OF THE ICC.  CHICAGO, M., ST. P. & P.R.
CO. V. UNITED STATES, 366 U.S. 745, 746 (1961); AYRSHIRE COLLIERIES
CORP. V. UNITED STATES, 331 U.S. 132, 141 (1947); ELECTRONIC INDUSTRIES
ASSN. V. UNITED STATES, 310 F.SUPP.  1286 (DC 1970), AFF'D, 401 U.S.
967 (1971).  INDEED, IN ELECTRONIC INDUSTRIES, WE REQUESTED SEPARATE
BRIEFS ON THE QUESTION WHETHER THERE WAS A JURISDICTIONAL DIFFERENCE IN
ICC CASES BETWEEN "INJUNCTIONS" AND ORDERS "SETTING ASIDE" ICC
DETERMINATIONS AND CONCLUDED THAT WE HAD JURISDICTION OVER THE APPEAL. 
/12/ THE SOUNDNESS OF THIS CONCLUSION APPEARS EVEN MORE CLEARLY FROM
THE LEGISLATIVE HISTORY OF 28 U.S.C. SEC. 2325.  BEFORE 1948, REVIEW OF
ICC ORDERS WAS GOVERNED BY THE URGENT DEFICIENCIES APPROPRIATIONS ACT
OF 1913.  38 STAT. 220.  IT PROVIDED IN PART:  " NO INTERLOCUTORY
INJUNCTION SUSPENDING OR RESTRAINING THE ENFORCEMENT, OPERATION, OR
EXECUTION OF, OR SETTING ASIDE, IN WHOLE OR IN PART, ANY ORDER MADE OR
ENTERED BY THE INTERSTATE COMMERCE COMMISSION SHALL BE ISSUED OR
GRANTED BY ANY DISTRICT COURT OF THE UNITED STATES, OR BY ANY JUDGE
THEREOF, OR BY ANY CIRCUIT JUDGE ACTING AS DISTRICT JUDGE, UNLESS THE
APPLICATION FOR THE SAME SHALL BE PRESENTED TO A CIRCUIT OR DISTRICT
JUDGE, AND SHALL BE HEARD AND DETERMINED BY THREE JUDGES, OF WHOM AT
LEAST ONE SHALL BE A CIRCUIT JUDGE, AND UNLESS A MAJORITY OF SAID THREE
JUDGES SHALL CONCUR IN GRANTING SUCH APPLICATION . . . AND UPON THE
FINAL HEARING OF ANY SUIT BROUGHT TO SUSPEND OR SET ASIDE, IN WHOLE OR
IN PART, ORDER OF SAID COMMISSION THE SAME REQUIREMENT AS TO JUDGES AND
THE SAME PROCEDURE AS TO EXPEDITION AND APPEAL SHALL APPLY."  (EMPHASIS
ADDED.) 

AS CAN BE SEEN, THE THREE-JUDGE REQUIREMENT APPLIED TO ORDERS
"SETTING ASIDE" AN ORDER OF THE ICC WITHOUT IN TERMS REQUIRING AS A
PREREQUISITE THAT THE ENFORCEMENT, OPERATION, OR EXECUTION OF THE ORDER
BE RESTRAINED.  IN 1948, AS PART OF THE REVISION AND CODIFICATION OF
TITLE 28 AND ITS ENACTMENT INTO POSITIVE LAW, THE URGENT DEFICIENCIES
APPROPRIATIONS ACT WAS REPLACED BY 28 U.S.C. SEC. 2321 - 2325.  THE
REVISER'S NOTES, WHICH ARE AUTHORITATIVE IN THE CONSTRUCTION OF THE
1948 REVISION, UNITED STATES V. NATIONAL CITY LINES, 337 U.S. 78, 81 -
82 (1949); STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368, 376 N. 12
(1949), STATE, WITH RESPECT TO 28 U.S.C. SEC. 2325, SIMPLY THAT IT
DERIVES FROM "TITLE 28, U.S.C., 1940 ED., SEC. 47 (OCT. 22, 1913, CH.
32, 38 STAT. 220)," WHICH IS THE URGENT DEFICIENCIES APPROPRIATIONS
ACT.  UNDER THE LONGSTANDING PRINCIPLE OF UNITED STATES V. RYDER, 110
U.S. 729, 740 (1884), IT "WILL NOT BE INFERRED THAT THE LEGISLATURE, IN
REVISING AND CONSOLIDATING THE LAWS, INTENDED TO CHANGE THEIR POLICY,
UNLESS SUCH INTENTION BE CLEARLY EXPRESSED."  NO SUCH INTENT IS
EXPRESSED HERE, AND IN OUR VIEW 28 U.S.C. SEC. 2325 REQUIRED THREE
JUDGES FOR ENTERING ALL ORDERS FOR WHICH THEY WERE REQUIRED UNDER THE
URGENT DEFICIENCIES APPROPRIATIONS ACT, WHICH INCLUDES ORDERS SETTING
ASIDE ICC ORDERS.  IN OTHER WORDS, AN ORDER "SETTING ASIDE" AN ICC
ORDER INEVITABLY RESTRAINS ITS "ENFORCEMENT, OPERATION OR EXECUTION,"
WITHIN THE MEANING OF SEC. 2325, NOW REPEALED. 

AT ORAL ARGUMENT, SCRAP CONTENDED THAT UNDER UNITED STATES V.
GRIFFIN, 303 U.S. 226, 233 (1938), THE URGENT DEFICIENCIES
APPROPRIATIONS ACT DID NOT PERMIT REVIEW "TO SET ASIDE EVERY KIND OF
ORDER ISSUED BY THE COMMISSION" AND IN PARTICULAR DID NOT PERMIT REVIEW
OF AN ORDER SUCH AS THE ONE SET ASIDE IN THIS CASE WHICH SIMPLY
INVOLVED A REFUSAL BY THE COMMISSION TO CHANGE THE EXISTING STATUS. 
ID., AT 234.  INSOFAR AS IT RESTED ON THE NEGATIVE-ORDER DOCTRINE OF
PROCTER & GAMBLE CO. V. UNITED STATES, 225 U.S. 282 (1912), GRIFFIN IS
NO LONGER THE LAW.  UNITED STATES V. JONES, 336 U.S. 641, 647 (1949);
ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, 145 (1939). 
INSOFAR AS GRIFFIN WAS BASED ON THE NOTION THAT THE URGENT DEFICIENCIES
APPROPRIATIONS ACT DOES NOT APPLY TO CHALLENGES TO ICC ORDERS ENTERED
UNDER THE RAILWAY MAIL PAY ACT, WHICH ARE IN ESSENCE SUITS FOR MONEY,
SEE UNITED STATES V. ICC, 337 U.S. 426, 442 (1949), AGAINST THE UNITED
STATES, IT HAS NO APPLICATION TO THIS CASE. 

/13/ FAILURE TO SUSPEND DOES NOT ALWAYS DO IRREPARABLE HARM TO
SHIPPERS WHO PAY THE INCREASED RATES.  UNLESS THE ICC HAS PREVIOUSLY
EXECISED ITS ANCILLARY POWER TO SET RATES, OR PRESCRIBE THEIR MAXIMA OR
MINIMA, ARIZONA GROCERY CO. V. ATCHISON, T. & S.F.R. CO., 284 U.S. 370
(1932), A SHIPPER MAY ALWAYS OBTAIN A REFUND IF HE ESTABLISHES THAT
RATES COLLECTED AFTER REFUSAL TO SUSPEND WERE UNLAWFUL.  49 U.S.C. SEC.
13 (1). 

/14/ TO PRESCRIBLE THE NEW RATES WOULD BE TO CUT OFF REFUND CLAIMS
BY INJURED SHIPPERS.  ARIZONA GROCERY CO. V. ATCHISON, T. & S.F.R. CO.,
SUPRA. 

/15/ INSOFAR AS THE COURT'S DECISION RESTED ON THE FACT THAT THE
ICC'S DECISION WAS A NEGATIVE ONE, IT IS INCONSISTENT WITH ROCHESTER
TEL.  CORP. V. UNITED STATES, 307 U.S. 125 (1939). 

/16/ THE COURT DECLINED TO TERM ITS HOLDING, IN THIS REGARD,
JURISDICTIONAL.  IT ALSO SAID THAT IT WOULD REVIEW A CLAIM THAT THE
ICC'S ORDER IN A GENERAL REVENUE PROCEEDING DEPRIVED A PLAINTIFF OF AN
"INDEPENDENT LEGAL RIGHT."  11 F.SUPP., AT 496.  MOREOVER, THE COURT
DID ADDRESS ON THE MERITS THE ISSUE WHICH THE ICC DID DECIDE--NAMELY
WHETHER THE EVIDENCE SUPPORTED THE NEED FOR A GENERAL RATE INCREASE. 
THE ICC CLAIMS THAT COURTS DO HAVE JURISDICTION TO REVIEW ITS DECISION
IN THIS RESPECT NOTWITHSTANDING THE PLAINTIFF'S FAILURE PREVIOUSLY TO
SEEK RELIEF UNDER SEC. 13.  WE DO NOT DECIDE WHETHER THE ICC IS
CORRECT.  SEE N. 18, INFRA. 

/17/ THE RAILROANDS CONTEND THAT ENVIRONMENTAL GROUPS MAY FILE
COMPLAINTS UNDER SEC. 13 CHALLENGING THE JUSTNESS AND REASONABLENESS OF
RATES OR GROUPS OF RATES.  THE COURT BELOW TENTATIVELY RULED
OTHERWISE.  IN LIGHT OF OUR DISPOSITION OF THE ISSUE DEALT WITH IN THIS
PART, WE NEED NOT DECIDE WHICH IS CORRECT. 

/18/ THE POSITION OF THE ICC SEEMS TO BE THAT ITS DECISION THAT A
GENERAL RATE INCREASE IS JUSTIFIED BY REASON OF REVENUE NEED IS A FINAL
DECISION RIPE FOR IMMEDIATE REVIEW AND ALGOMA COAL & COKE CO. V. UNITED
STATES, SUPRA, WOULD SEEM TO SUPPORT IT. THE RAILROADS CLAIM THAT SUCH
A DECISION IS UNREVIEWABLE ABSENT EXHAUSTION OF SEC. 13 REMEDIES AND
THEY ARE SUPPORTED IN THIS CONTENTION BY THE LOWER COURT DECISIONS IN
ATLANTIC CITY ELECTRIC CO. V. UNITED STATES, 306 F.SUPP.  338 (SDNY
1969), AND ALABAMA POWER CO. V. UNITED STATES, 316 F.SUPP.  337 (DC
1969), BOTH AFF'D BY EQUALLY DIVIDED COURT, 400 U.S. 73 (1970).  WE
NEED NOT RESOLVE THIS ISSUE. 

PART OF NEPA PROVIDES THAT "THE POLICIES, REGULATIONS, AND PUBLIC
LAWS OF THE UNITED STATES SHALL BE INTERPRETED AND ADMINISTERED IN
ACCORDANCE WITH THE POLICIES SET FORTH IN THIS CHAPTER," 42 U.S.C. SEC.
4332 (1); AND ONE OF THE POLICIES OF THE CHAPTER IS TO "APPROACH THE
MAXIMUM ATTAINABLE RECYCLING OF DEPLETABLE RESOURCES."  THE DISTRICT
COURT EXPRESSLY DECLINED TO REVIEW THE QUESTION WHETHER THE ICC
ULTIMATELY "GAVE INSUFFICIENT WEIGHT TO THIS ENVIRONMENTAL VALUE" IN
REACHING ITS CONCLUSION THAT THE GENERAL INCREASE WAS JUSTIFIED. 
THEREFORE, THIS APPEAL DOES NOT INVOLVE REVIEWABILITY OF THOSE
SUBSTANTIVE ISSUES, INCLUDING ENVIRONMENTAL ISSUES, DECIDED BY THE ICC
AT THE GENERAL REVENUE PROCEEDING. 

/19/ THE ICC DID REQUIRE THE RAILROADS TO CIRCULATE A DRAFT IMPACT
STATEMENT SHORTLY AFTER ITS PROPOSAL WAS MADE. 

/20/ TO THE EXTENT TO WHICH CALVERT CLIFFS' COORDINATING COMMITTEE
V. AEC, 146 U.S.APP.  D.C. 33, 449 F.2D 1109 (1971); GREENE COUNTRY
PLANNING BD. V. FPC, 445 F.2D 412 (CA2), CERT. DENIED, 409 U.S. 849
(1972); AND HARLEM VALLEY TRANSPORTATION ASSN. V. STAFFORD, 500 F.2D
328 (CA2 1974), READ THE REQUIREMENT THAT THE STATEMENT ACCOMPANY THE
PROPOSAL THROUGH THE EXISTING AGENCY REVIEW PROCESSES DIFFERENTLY, THEY
WOULD APPEAR TO CONFLICT WITH THE STATUTE. 

/21/ THE DECISION WHICH THE ICC MAKES IN A GENERAL REVENUE
PROCEEDING IS BY LAW FAR MORE CONFINED THAN, FOR EXAMPLE, THAT OF AN
AGENCY DECIDING WHETHER AND WHERE TO BUILD A NEW PRISON.  E. G., HANLY
V. MITCHELL, 460 F.2D 640 (CA2), CERT. DENIED SUB NOM.  HANLY V.
KLEINDIENTST, 409 U.S. 990 (1972).  THE ICC IS PERMITTED TO ACT AGAINST
PROPOSED RATE INCREASES, FOR MORE THAN A SEVEN-MONTH PERIOD, ONLY IF
UPON THE BASIS OF ITS INVESTIGATION IT CAN FIND THAT THE RATES ARE
UNLAWFUL, I. E., UNJUST OR UNREASONABLE, OR OTHERWISE IN VIOLATION OF
THE INTERSTATE COMMERCE ACT.  THE ICC HAS CONCLUDED, AND WE AGREE, THAT
THE STANDARDS OF THE ACT ARE BROAD ENOUGH TO PERMIT CONSIDERATION OF
ENVIRONMENTAL FACTORS, EVEN AT GENERAL REVENUE PROCEEDINGS, DAYTON
GOOSE CREEK R. CO. V. UNITED STATES, 263 U.S. 456, 480 (1924); EX PARTE
265 AND EX PARTE 267, INCREASED FREIGHT RATES, 1970 AND 1971, 339
I.C.C. 125, 209 (1971).  AT THE SAME TIME, STANDARD RATEMAKING CRITERIA
LIMIT THE POWER OF THE ICC TO FORCE RAILROADS TO TRANSPORT RECYCLABLE
MATERIALS AT DEFICIT RATES NO MATTER HOW MUCH THE ENVIRONMENT WOULD BE
BENEFITED THEREBY AND NO MATTER HOW MUCH ENVIRONMENTAL INJURY WOULD BE
CAUSED BY NOT DOING SO.  UNDER PRESENT STATUTES, FOR EXAMPLE, THE
RAILROADS COULD NOT BE REQUIRED TO REDUCE RATES ON RECYCLABLES TO
ZERO. 

/22/ APPELLANTS HAVE NOT ARGUED THAT CONSIDERATION OF THE LAWFULNESS
OF PARTICULAR RATES ON PARTICULAR RECYCLABLES WAS IN NO WAY BEFORE THE
ICC IN EX PARTE 281.  WE ASSUME FOR THE PURPOSES OF THIS CASE,
THEREFORE, THAT THE "ACTION" TAKEN IN EX PARTE 281 INCLUDED A DECISION
NOT TO DECLARE RATES ON PARTICULAR RECYCLABLES UNLAWFUL ON THE BASIS OF
THE VERY LIMITED INQUIRY APPROPRIATE TO A GENERAL REVENUE PROCEEDING. 

/23/ A PERCENTAGE INCREASE INCREASES A HIGH RATE A LARGER ABSOLUTE
AMOUNT THAN IT DOES A LOW RATE. 

/24/ THE COMMISSION HAS CONCLUDED A THOROUGH INVESTIGATION, IN EX
PARTE 270, OF THE UNDERLYING RATE STRUCTURE AS IT APPLIES TO FERROUS
SCRAP AND THE VIRGIN ORES WITH WHICH IT COMPETES.  IN EX PARTE 295, A
SUBSEQUENT GENERAL REVENUE PROCEEDING, THE COMMISSION CONCLUDED ON
FURTHER INVESTIGATION THAT THE RATES ON WASTE PAPER AND NONFERROUS
METAL SCRAP ARE HIGH IN COMPARISON TO THE VIRGIN MATERIALS WITH WHICH
THEY COMPETE, AND IT REFUSED TO PERMIT INCREASES AS TO THEM.  IT ALSO
CONCLUDED THAT THE ENVIRONMENTAL CONSEQUENCES OF THIS SITUATION ARE
SMALL.  IN EX PARTE 310, THE MOST RECENT GENERAL REVENUE PROCEEDING,
THE ICC DECLINED TO PERMIT INCREASES ON EITHER FERROUS OR NONFERROUS
SCRAP, CITING GENERAL ECONOMIC FACTORS WHICH HAD HURT THOSE INDUSTRIES
IN PARTICULAR. 

/25/ SEE CEQ GUIDELINES, 40 CFR SEC. 1500.6 (D) (1). 

/26/ CEQ, ON WHOSE OPPOSITION TO THE IMPACT STATEMENT APPELLEES
HEAVILY RELY, APPARENTLY RECOGNIZING THE WISDOM OF EXPLORING THE
UNDERLYING RATE STRUCTURE IN A PROCEEDING COMMENCED EXPRESSLY FOR THAT
PURPOSE, ACQUIESCED IN CONSIDERATION OF THESE ISSUES IN THE CONTEXT OF
EX PARTE 270, PROVIDED ONLY THAT THE ICC SUSPEND THE INCREASES ON
RECYCLABLES IN THE INTERIM.  CEQ OVERLOOKED, HOWEVER, THE FACT THAT THE
ICC WAS WHOLLY WITHOUT POWER TO DO THIS. 

/27/ APPARENTLY RECOGNIZING THAT THE ICC'S TERMINATING OF EX PARTE
281 DID NOT TERMINATE ITS CONSIDERATION OF ENVIRONMENTAL ISSUES
RELATING TO ITS RATE STRUCTURE AND THE CONSEQUENT POINTLESSNESS OF
FORCING THE ICC TO DUPLICATE ITS EFFORTS IN THE CONTEXT OF EX PARTE
281, ALL OF THE APPELLEES, EXCEPT NARI HAVE FILED SUGGESTIONS OF
MOOTNESS.  THE CASE IS NOT MOOT.  THE SITUATION IS NOT SUBSTANTIALLY
DIFFERENT THAN IT WAS AT THE TIME OF THE LOWER COURT'S DECISION; AND
THE ICC IS UNDER AN ORDER TO PREPARE A NEW IMPACT STATEMENT IN EX PARTE
281 AND TO HOLD HEARINGS IN EX PARTE 281 AND TO WRITE A FINAL REPORT IN
EX PARTE 281 AFTER THE HEARINGS.  THE ICC HAS NOT YET DONE SO AND
CLAIMS THAT IT SHOULD NOT BE REQUIRED TO DO SO.  NARI CLAIMS THAT IT
SHOULD BE REQUIRED TO DO SO.  WE MUST DECIDE WHO IS RIGHT.  HOWEVER, WE
AGREE WITH THE THRUST OF THE SUGGESTIONS OF MOOTNESS THAT THE RELIEF
GRANTED BELOW WAS NOT IN THE BEST INTERESTS OF ANYONE. 

/28/ A LARGE PORTION OF EACH OF THE BRIEFS IN THESE CASES IS
DDEVOTED TO THE QUESTION OF THE PROPER SCOPE OF REVIEW BY A COURT OF
THE ADEQUACY OF THE TREATMENT OF ENVIRONMENTAL ISSUES IN AN IMPACT
STATEMENT.  COMPARE, E. G., LATHAN V. BRINEGAR, 506 F.2D 677 (CA9
1974), WITH CITY OF NEW YORK V. UNITED STATES, 344 F.SUPP.  929 (EDNY
1972).  HOWEVER, WE NEED NOT RESOLVE THIS QUESTION SINCE, IN LIGHT OF
THE "ACTION" TAKEN, UNDER ANY STANDARD OF REVIEW THE ICC GAVE AN
ADEQUATELY "HARD LOOK" AT ENVIRONMENTAL MATTERS. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I AGREE WITH PARTS I, II, AND III OF THE COURT'S OPINION THAT THE
CASES ARE PROPERLY HERE AND THAT THE DISTRICT COURT HAD JURISDICTION
OVER APPELLEES' COMPLAINT.  ON THE MERITS, I WOULD, HOWEVER, AFFIRM. 

THIS LITIGATION PRESENTS A HISTORY OF FOOT DRAGGING BY THE ICC, AS
OTHER PARTIES TO PROCEEDINGS BEFORE IT, INCLUDING OTHER FEDERAL
AGENCIES, HAVE ATTEMPTED TO PROD IT INTO COMPLIANCE WITH THE NATIONAL
ENVIRONMENTAL POLICY ACT (NEPA).  THE "FINAL IMPACT STATEMENT" THAT THE
COURT HOLDS ADEQUATE PRESENTS A MELANGE OF STATISTICS THAT PURPORT TO
SHOW THAT AN INCREASE ON THE TRANSPORTATION RATES OF RECYCLABLE
MATERIALS WILL NOT HAVE A SIGNIFICANT ADVERSE IMPACT ON THE
ENVIRONMENT.  THE COMMISSION'S "ANALYSIS" HAS BEEN THOROUGHLY
DISCREDITED BY THE COMMENTS OF OTHER FEDERAL AGENCIES, INCLUDING NOT
ONLY THE ENVIRONMENTAL PROTECTION AGENCY AND THE COUNCIL ON
ENVIRONMENTAL QUALITY, WHOSE PRINCIPAL CONCERNS ARE ENVIRONMENTAL, BUT
ALSO THE DEPARTMENT OF COMMERCE AND THE GENERAL SERVICES
ADMINISTRATION.  THE COMMISSION HAS RESPONDED TO THE ADVERSE COMMENTS
BY PAPERING OVER THE DEFECTS THEY IDENTIFY, RATHER THAN DEALING WITH
THE SUBSTANCE OF THE DEFICIENCIES. 

THE ENVIRONMENTAL EFFECTS AT STAKE ARE DESCRIBED IN MY OPINION WHEN
THE CASE WAS HERE BEFORE.  UNITED STATES V. SCRAP, 412 U.S. 669, 699 -
714 (1973).  APPELLEES OPPOSE INCREASES ON THE RATES FOR RECYCLABLES
BECAUSE INCREASES IN TRANSPORTATION COSTS WILL RETARD THE USE OF
RECYCLED PRODUCTS AND THEREBY CONTRIBUTE TO FURTHER DEPLETION OF OUR
NATURAL RESOURCES.  THE COMMISSION RESPONDED INITIALLY BY ASSERTING
THAT AN INCREASE IN TRANSPORTATION CHARGES WOULD HAVE NO EFFECT UPON
THE DEMAND FOR SCRAP MATERIALS, AND CITED IN SUPPORT OF THIS
PROPOSITION STATISTICS SHOWING THAT DURING A MULTIYEAR PERIOD WHEN
FREIGHT RATES WERE RISING, PRICES OF RECYCLABLES FLUCTUATED WIDELY AND
CONSUMPTION GENERALLY INCREASED.  SEE INCREASED FREIGHT RATES AND
CHARGES, 1972, 341 I.C.C. 288, 397 - 402 (1972).  THE FALLACY OF THE
COMMISSION'S ARGUMENT WAS EXPOSED BY THE COUNCIL ON ENVIRONMENTAL
QUALITY, COMMENTING ON THE PRICE OF AND DEMAND FOR FERROUS METAL
SCRAP:     "(SCRAP PRICES ARE DETERMINED BY A NUMBER OF FACTORS
OPERATING SIMULTANEOUSLY, AMONG THEM ARE THE AGGREGATE DEMAND FOR
STEEL, THE PRICE AND TRANSPORTATION COSTS OF IRON ORE, THE SUPPLY OF
SCRAP, AS WELL AS THE TRANSPORTATION COST OF SCRAP AND OTHER FACTORS. 
IT WOULD BE SURPRISING INDEED, IF, IN LIGHT OF THE NUMBER OF FACTORS
CONSTANTLY AT WORK IN THE SCRAP MARKET, A CLOSE AND SIMPLE RELATIONSHIP
EXISTED BETWEEN SCRAP PRICE MOVEMENTS AND FREIGHT RATE CHANGES. 

     " NOR DOES DATA WHICH SHOWS A CONSTANTLY GROWING CONSUMPTION
OF

  SCRAP DESPITE RATE INCREASES PROVE THAT FREIGHT RATE DECISIONS

  ARE INCONSEQUENTIAL.  GROWTH MIGHT HAVE BEEN MATERIALLY HIGHER OR

  LOWER HAD . . . RATE DECISIONS BEEN DIFFERENT.  WHAT IS NEEDED IN

  EACH INSTANCE IS A MULTIVARIATE ANALYSIS TO ISOLATE THE EFFECT OF

  TRANSPORTATION COSTS ON SCRAP PRICES AND THE QUANTITY CONSUMED." 

  /1/

YET THE COMMISSION PERSISTED IN THESE ASSERTION, AND IT FAILED TO MAKE
THE PRICE SENSITIVITY STUDIES THE COUNCIL RECOMMENDED.  SEE EX PARTE
NO. 281, INCREASED FREIGHT RATES AND CHARGES, 1972, 346 I.C.C. 88, 145
149 (1973). 

APPELLEES ALSO ARGUED TO THE COMMISSION THAT THE RATE INCREASES FOR
RECYCLABLES EXACERBATED AN EXISTING DISCRIMINATION AGAINST THESE
MATERIALS IN THE RATE STRUCTURE.  THE COMMISSION EXPRESSED DOUBT THAT
ANY UNJUSTIFIED DISCRIMINATION EXISTED, ARGUING THAT ANY DISPARITY WAS
PROBABLY ATTRIBUTABLE TO DIFFERING COSTS.  BUT A DEPARTMENT OF
TRANSPORTATION STUDY CITED IN THE PRESENTATION MADE BY THE
ENVIRONMENTAL PROTECTION AGENCY HAD CONCLUDED THAT RATIOS OF REVENUE TO
COST WERE HIGHER FOR CERTAIN RECYCLABLE COMMODITIES THAN FOR THEIR
VIRGIN SUBSTITUTES, CAUSING THE FORMER TO BEAR MORE THAN THEIR "SHARE"
OF THE COST OF SERVICE.  THE COMMISSION'S OWN STATISTICS SUPPORTED THIS
CONCLUSION TO SOME EXTENT.  COMPARING THE REVENUE-COST RATIOS FOR
FERROUS SCRAP AND FOR IRON ORE, THE COMMISSION FOUND THAT THE SCRAP
BORE THE LESSER SHARE OF VARIABLE COSTS, BUT A GREATER SHARE OF ALL
COSTS--FIXED AND VARIABLE--THAN DID ORE.  ID., AT 124.  THE COMMISSION
DID NOT INQUIRE FURTHER INTO THIS DISPARITY. 

THE COURT IMPLICITLY CONCEDES THE SHORTCOMINGS OF THE COMMISSION'S
ANALYSIS, RELYING, AS THE COMMISSION DID, ON THE PROSPECT THAT THE
ENVIRONMENTAL ISSUES WOULD RECEIVE FURTHER STUDY IN EX PARTE 270, A
PROCEEDING INITIATED TO INVESTIGATE THE ENTIRE FREIGHT RATE STRUCTURE. 
BUT NEPA COMMANDS AN AGENCY TO CONSIDER ENVIRONMENTAL EFFECTS BEFORE IT
TAKES A "MAJOR FEDERAL ACTION," NOT TO RELEGATE CONSIDERATION TO
FURTHER PROCEEDINGS AFTER ACTION IS TAKEN, PARTICULARLY WHERE THERE IS
NO ASSURANCE THAT A PROMPT CONCLUSION WILL BE FORTHCOMING.  WHEN THE
COMMISSION TERMINATED ITS PROCEEDINGS IN EX PARTE 281, EX PARTE 270 HAD
BEEN IN PROGRESS FOR MORE THAN TWO YEARS.  THE SCOPE OF THE
INVESTIGATION HAD NOT BEEN FULLY DEFINDED AT THAT TIME, AND THE
PROSPECT OF ANY PROMPT ILLUMINATION OF THE ENVIRONMENTAL ISSUES WAS
CERTAINLY REMOTE.  THE COMMISSION TOOK NO PARTICULAR STEPS TO EXPEDITE
COMPLETION OF THAT PHASE OF THE INVESTIGATION THAT WOULD EMBRACE THE
ENVIRONMENTAL ISSUES CONTROVERTED IN EX PARTE 281.  INSTEAD, THE
COMMISSION WAS CONTENT TO PUT ASIDE THESE ISSUES, OFFERING A VAGUE
ASSURANCE THAT THEY WOULD BE TAKEN UP AGAIN IN THE COURSE OF WHAT
PROMISED TO BE A PROTRACTED PROCEEDING.  TODAY, NEARLY TWO TEARS LATER,
WE ARE NOT APPRISED OF ANY CONCLUSIONS AS TO ENVIRONMENTAL ISSUES
REACHED AS A RESULT OF EX PARTE 270; WE DO NOT EVEN KNOW WHETHER A
COMPLETION DATE IS IN SIGHT.  MEANWHILE, ENVIRONMENTAL DAMAGE-
IRREVERSIBLE DAMAGE--WHICH APPELLEES ALLEGED WITH CONSIDERABLE
SUPPORTING EVIDENCE MAY BE CONTINUING, WITH ITS MAGNITUDE UNKNOWN. 

NEPA IS MORE THAN A TECHNICAL STATUTE OF ADMINISTRATIVE PROCEDURE. 
IT IS A COMMITMENT TO THE PRESERVATION OF OUR NATURAL ENVIRONMENT.  THE
STATUTE'S LANGUAGE CONVEYS THE URGENCY OF THAT TASK.  THE DISTRICT
COURT ACTED RESPONSIBLY WHEN IT REFUSED TO ACCEPT THE COMMISSION'S
REPRESENTATIONS THAT A COMPLETE TREATMENT OF THE ENVIRONMENTAL ISSUES
WAS BEYOND ITS CAPABILITY AND THEREFORE SHOULD NOT BE REQUIRED.  ONE
PURPOSE OF NEPA WAS TO FORCE AGENCIES TO ACQUIRE EXPERTISE IN
ENVIRONMENTAL MATTERS, EVEN IF ATTENTION TO PAROCHIAL MATTERS IN THE
PAST HAD NOT DEMANDED THIS CAPABILITY.  /2/ THE COURT TODAY EXCUSES THE
COMMISSION'S PERFORMANCE.  THE DISTRICT COURT, FOLLOWING THE SPIRIT OF
NEPA, TOLD THE COMMISSION TO DO BETTER.  I WOULD AFFIRM ITS JUDGMENT. 

/1/ ATTACHMENT TO LETTER FROM RUSSELL E. TRAIN, CHAIRMAN OF COUNCIL
ON ENVIRONMENTAL QUALITY, TO ICC, OCT. 30, 1972.  (APP. 572.) 

/2/ SECTION 102(2)(A) OF NEPA REQUIRES ALL AGENCIES TO "UTILIZE A
SYSTEMATIC, INTERDISCIPLINARY APPROACH WHICH WILL INSURE THE
INTERGRATED USE OF THE NATURAL AND SOCIAL SCIENCES AND THE
ENVIRONMENTAL DESIGN ARTS IN PLANNING AND IN DECISIONMAKING WHICH MAY
HAVE AN IMPACT ON MAN'S ENVIRONMENT."  42 U.S.C. SEC. 4332(2)(A). 
(EMPHASIS ADDED.) 

CHARLES A. HORSKY ARGUED THE CAUSE FOR APPELLANTS IN NO. 73 - 1966. 
WITH HIM ON THE BRIEFS WERE MICHAEL BOUDIN, EDWARD A. KAIER, AND ALBERT
B. RUSS, JR. A. RAYMOND RANDOLPH, JR., ARGUED THE CAUSE FOR THE UNITED
STATES ET AL. IN NO. 73 - 1971.  ON THE BRIEFS WERE SOLICITOR GENERAL
BORK, ASSISTANT ATTORNEY GENERAL JOHNSON, FRITZ R. KAHN, BETTY JO
CHRISTIAN, AND CHARLES H. WHITE, JR. 

JOHN F. HELLEGERS ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES
STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES ET AL. IN BOTH
CASES.  EDWARD L. MERRIGAN ARGUED THE CAUSE AND FILED BRIEFS FOR
APPELLEES NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., ET AL. IN
BOTH CASES.  E. BRUCE BUTLER ARGUED THE CASE FOR APPELLEE INSTITUTE OF
SCRAP IRON AND STEEL, INC., IN BOTH CASES.  WITH HIM ON THE BRIEF WERE
THOMAS H. BOGGS, JR., GEORGE BLOW, HOWARD GOULD, AND DAVID REICHERT. 
..END :















HICKS V. MIRANDA, 422 US 332 


       HICKS, DISTRICT ATTORNEY OF ORANGE COUNTY, ET AL. V.

           MIRANDA, DBA WALNUT PROPERTIES, ET AL.

    APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL

           DISTRICT OF CALIFORNIA

        NO. 74 - 156.  ARGUED MARCH 24, 1975; DECIDED JUNE 24,
1975;

     388 F. SUPP. 350, REVERSED. 


AFTER THE POLICE, PURSUANT TO FOUR SEPARATE WARRANTS, HAD SEIZED FOUR
COPIES OF AN ALLEGEDLY OBSCENE FILM FROM APPELLEES' THEATER,
MISDEMEANOR CHARGES WERE FILED IN MUNICIPAL COURT AGAINST TWO THEATER
EMPLOYEES, AND THE CALIFORNIA SUPERIOR COURT ORDERED APPELLEES TO SHOW
CAUSE WHY THE FILM SHOULD NOT BE DECLARED OBSCENE.  SUBSEQUENTLY, THE
SUPERIOR COURT DECLARED THE FILM OBSCENE AND ORDERED SEIZED ALL COPIES
THAT MIGHT BE FOUND AT THE THEATER.  RATHER THAN APPEALING FROM THIS
ORDER, APPELLEES FILED SUIT IN FEDERAL DISTRICT COURT AGAINST APPELLANT
POLICE OFFICERS AND PROSECUTING ATTORNEYS, SEEKING AN INJUNCTION
AGAINST ENFORCEMENT OF THE CALIFORNIA OBSCENITY STATUTE AND FOR RETURN
OF THE SEIZED COPIES OF THE FILM, AND A JUDGMENT DECLARING THE STATUTE
UNCONSTITUTIONAL.  A THREE-JUDGE COURT WAS THEN CONVENED TO CONSIDER
THE CONSTITUTIONALITY OF THE STATUTE.  MEANWHILE, APPELLEES WERE ADDED
AS PARTIES DEFENDANT IN THE MUNICIPAL COURT CRIMINAL PROCEEDING. 
THEREAFTER, THE THREE-JUDGE COURT DECLARED THE OBSCENITY STATUTE
UNCONSTITUTIONAL, ORDERED RETURN TO APPELLEES OF ALL SEIZED COPIES OF
THE FILM, AND REJECTED APPELLANTS' CLAIM THAT YOUNGER V. HARRIS, 401
U.S. 37, AND SAMUELS V. MACKELL, 401 U.S. 66, REQUIRED DISMISSAL OF THE
CASE, HOLDING THAT NO CRIMINAL CHARGES WERE PENDING AGAINST APPELLEES
IN STATE COURT AND THAT IN ANY EVENT THE PATTERN OF SEARCH WARRANTS AND
SEIZURES OF THE FILM SHOWED BAD FAITH AND HARASSMENT ON THE
AUTHORITIES' PART.  THE COURT THEN DENIED APPELLANTS' MOTIONS FOR
REHEARING AND RELIEF FROM THE JUDGMENT, BASED, INTER ALIA, ON THIS
COURT'S INTERVENING DISMISSAL "FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION" OF THE APPEAL IN MILLER V. CALIFORNIA, 418 U.S. 915 (MILLER
II), FROM THE CALIFORNIA SUPERIOR COURT'S JUDGMENT SUSTAINING THE
CONSTITUTIONALITY OF THE CALIFORNIA OBSCENITY STATUTE; REAFFIRMED ITS
YOUNGER V. HARRIS RULING; AND, AFTER CONCLUDING THAT IT WAS NOT BOUND
BY THE DISMISSAL OF MILLER II, SUPRA, ADHERED TO ITS JUDGMENT THAT THE
OBSCENITY STATUTE WAS UNCONSTITUTIONAL, ALTHOUGH IT AMENDED ITS
INJUNCTION SO AS TO REQUIRE APPELLANTS TO SEEK RETURN OF THREE OF THE
FOUR COPIES OF THE FILM IN THE MUNICIPAL COURT'S POSSESSION.  HELD: 

1.  THIS COURT HAS JURISDICTION OVER THE APPEAL UNDER 28 U.S.C. SEC.
1253, AND THE INJUNCTION, AS WELL AS THE DECLARATORY JUDGMENT, IS
PROPERLY BEFORE THE COURT.  PP. 342 - 348. 

(A) ALTHOUGH THE CONSTITUTIONAL ISSUES PRESENTED IN MILLER II AND
DECLARED INSUBSTANTIAL BY THIS COURT, COULD NOT BE CONSIDERED
SUBSTANTIAL AND DECIDED OTHERWISE BY THE DISTRICT COURT, MILLER II DID
NOT REQUIRE THAT THE THREE-JUDGE COURT BE DISSOLVED IN THE
CIRCUMSTANCES.  SINCE APPELLEES NOT ONLY CHALLENGED THE ENFORCEMENT OF
THE OBSCENITY STATUTE BUT ALSO SOUGHT TO ENJOIN ENFORCEMENT OF THE
SEARCH WARRANT STATUTES (NECESSARILY ON CONSTITUTIONAL GROUNDS) INSOFAR
AS THEY MIGHT BE APPLIED TO PERMIT THE MULTIPLE SEIZURES OF THE FILM,
AND SINCE MILLER II HAD NOTHING TO DO WITH THE ISSUE OF THE VALIDITY OF
THE MULTIPLE SEIZURES, THAT ISSUE REMAINED IN THE CASE AND THE THREE
JUDGE COURT SHOULD HAVE REMAINED IN SESSION TO CONSIDER IT.  PP. 343 -
346. 

(B) THE DISTRICT COURT'S INJUNCTION, REQUIRING APPELLANTS TO SEEK
RETURN OF THREE COPIES OF THE FILM IN THE MUNICIPAL COURT'S POSSESSION,
PLAINLY INTERFERED WITH THE PENDING CRIMINAL PROSECUTION AND WITH
ENFORCEMENT OF THE OBSCENITY STATUTE, AND HENCE WAS AN INJUNCTION
RESERVED TO A THREE-JUDGE COURT UNDER 28 U.S.C. SEC. 2281.  PP. 347 -
348. 

2.  THE DISTRICT COURT ERRED IN REACHING THE MERITS OF THE CASE
DESPITE APPELLANTS' INSISTENCE THAT IT BE DISMISSED UNDER YOUNGER V.
HARRIS AND SAMUELS V. MACKELL.  PP. 348 - 352. 

(A) WHERE STATE CRIMINAL PROCEEDINGS ARE BEGUN AGAINST THE FEDERAL
PLAINTIFFS AFTER THE FEDERAL COMPLAINT IS FILED BUT BEFORE ANY
PROCEEDINGS OF SUBSTANCE ON THE MERITS HAVE TAKEN PLACE IN THE FEDERAL
COURT, THE PRINCIPLES OF YOUNGER V. HARRIS SHOULD APPLY IN FULL FORCE. 
HERE, APPELLEES WERE CHARGED IN THE STATE CRIMINAL PROCEEDINGS PRIOR TO
APPELLANTS' ANSWERING THE FEDERAL CASE AND PRIOR TO ANY PROCEEDINGS
BEFORE THE THREE-JUDGE COURT, AND HENCE THE FEDERAL COMPLAINT SHOULD
HAVE BEEN DISMISSED ON APPELLANTS' MOTION ABSENT SATISFACTORY PROOF OF
THOSE EXTRAORDINARY CIRCUMSTANCES WARRANTING ONE OF THE EXCEPTIONS TO
THE RULE OF YOUNGER V. HARRIS AND RELATED CASES.  PP. 348 - 350. 

(B) ABSENT AT LEAST SOME EFFORT BY THE DISTRICT COURT TO IMPEACH THE
PROSECUTING OFFICIALS' ENTITLEMENT TO RELY ON REPEATED JUDICIAL
AUTHORIZATION FOR SEIZURES OF THE FILM, OFFICIAL BAD FAITH AND
HARASSMENT WERE NOT MADE OUT, AND THE DISTRIC COURT ERRED IN HOLDING
OTHERWISE.  PP. 350 - 352. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BURGER, C.J.,
FILED A CONCURRING OPINION, POST, P. 352.  STEWART, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND MARSHALL, JJ.,
JOINED, POST, P. 353. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASER POSES ISSUES UNDER YOUNGER V. HARRIS , 401 U.S. 37
(1973), SAMUELS V. MACKELL, 401 U.S. 66 (1971), AND RELATED CASES, AS
WELL AS THE PRELIMINARY QUESTION AS TO OUR JURISDICTION OF THIS DIRECT
APPEAL FROM A JUDGMENT OF A THREE-JUDGE DISTRICT COURT. 

        I 

ON NOVEMBER 23 AND 24, 1973, PURSUANT TO FOUR SEPARATE WARRANTS
ISSUED SERIATIM, THE POLICE SEIZED FOUR COPIES OF THE FILM " DEEP
THROAT," EACH OF WHICH HAD BEEN SHOWN AT THE PUSSYCAT THEATRE IN BUENA
PARK, ORANGE COUNTY, CAL.  /1/  ON NOVEMBER 26 AN EIGHT-COUNT CRIMINAL
MISDEMEANOR CHARGE WAS FILED IN THE ORANGE COUNTY MUNICIPAL COURT
AGAINST TWO EMPLOYEES OF THE THEATER, EACH FILM SEIZED BEING THE
SUBJECT MATTER OF TWO COUNTS IN THE COMPLAINT.  ALSO ON NOVEMBER 26,
THE SUPERIOR COURT OF ORANGE COUNTY ORDERED APPELLEES /2/ TO SHOW CAUSE
WHY " DEEP THROAT" SHOULD NOT BE DECLARED OBSECENE, AN IMMEDIATE
HEARING BEING AVAILABLE TO APPELLEES, WHO APPEARED THAT DAY, OBJECTED
ON STATE-LAW GROUNDS TO THE COURT'S JURISDICTION TO CONDUCT SUCH A
PROCEEDING, PURPORTED TO "RESERVE" ALL FEDERAL QUESTIONS, AND REFUSED
FURTHER TO PARTICIPATE.  THEREUPON, ON NOVEMBER 27 THE SUPERIOR COURT
HELD A HEARING, VIEWED THE FILM, TOOK EVIDENCE, AND THEN DECLARED THE
MOVIE TO BE OBSCENE AND ORDERED SEIZED ALL COPIES OF IT THAT MIGHT BE
FOUND AT THE THEATER.  THIS JUDGMENT AND ORDER WERE NOT APPEALED BY
APPELLEES.  /3/ 

INSTEAD, ON NOVEMBER 29, THEY FILED THIS SUIT IN THE DISTRICT COURT
AGAINST APPELLANTS--FOUR POLICE OFFICERS OF BUENA PARK AND THE DISTRICT
ATTORNEY AND ASSISTANT DISTRICT ATTORNEY OF ORANGE COUNTY.  THE
COMPLAINT RECITED THE SEIZURES AND THE PROCEEDINGS IN THE SUPERIOR
COURT, STATED THAT THE ACTION WAS FOR AN INJUNCTION AGAINST THE
ENFORCEMENT OF THE CALIFORNIA OBSCENITY STATUTE, AND PRAYED FOR
JUDGMENT DECLARING THE OBSCENITY STATUTE UNCONSTITUTIONAL, AND FOR AN
INJUNCTION ORDERING THE RETURN OF ALL COPIES OF THE FILM, BUT
PERMITTING ONE OF THE FILMS TO BE DUPLICATED BEFORE ITS RETURN. 

A TEMPORARY RESTRAINING ORDER WAS REQUESTED AND DENIED, THE DISTRICT
JUDGE FINDING THE PROOF OF IRREPARABLE INJURY TO BE LACKING AND AN
INSUFFICIENT LIKELIHOOD OF PREVAILING ON THE MERITS TO WARRANT AN
INJUNCTION.  /4/ HE REQUESTED THE CONVENING OF A THREE-JUDGE COURT,
HOWEVER, TO CONSIDER THE CONSTITUTIONALITY OF THE STATUTE.  SUCH A
COURT WAS THEN DESIGNATED ON JANUARY 8, 1974.  /5/ 

SERVICE OF THE COMPLAINT WAS COMPLETE ON JANUARY 14, 1974, AND
ANSWERS AND MOTIONS TO DISMISS, AS WELL AS A MOTION FOR SUMMARY
JUDGMENT, WERE FILED BY APPELLANTS.  APPELLEES MOVED FOR A PRELIMINARY
INJUNCTION.  /6/ NONE OF THE MOTIONS WAS GRANTED AND NO HEARINGS HELD,
ALL OF THE ISSUES BEING ORDERED SUBMITTED ON BRIEFS AND AFFIDAVITS. 
THE ATTORNEY GENERAL OF CALIFORNIA ALSO APPEARED AND URGED THE DISTRICT
COURT TO FOLLOW PEOPLE V. ENSKAT, 33 CAL. APP. 3D 900, 109 CAL. RPTR. 
433 (1973) (HEARING DENIED OCT. 24, 1973), WHICH, AFTER MILLER V.
CALIFORNIA, 413 U.S. 15 (1973) (MILLER I), HAD UPHELD THE CALIFORNIA
OBSCENITY STATUTE. 

MEANWHILE , ON JANUARY 15, THE CRIMINAL COMPLAINT PENDING IN THE
MUNICIPAL COURT HAD BEEN AMENDED BY NAMING APPELLEES /7/ AS ADDITIONAL
PARTIES DEFENDANT AND BY ADDING FOUR CONSPIRACY COUNTS, ONE RELATING TO
EACH OF THE SEIZED FILMS.  ALSO, ON MOTIONS OF THE DEFENDANTS IN THAT
CASE, TWO OF THE FILMS WERE ORDERED SUPPRESSED ON THE GROUND THAT THE
TWO SEARCH WARRANTS FOR SEIZING " DEEP THROAT" LAST ISSUED, ONE ON
NOVEMBER 23 AND THE OTHER ON NOVEMBER 24, DID NOT SUFFICIENTLY ALLEGE
THAT THE FILMS TO BE SEIZED UNDER THOSE WARAANTS DIFFERED FROM EACH
OTHER AND FROM THE FILMS PREVIOUSLY SEIZED, THE FINAL TWO SEIZURES
BEING SAID TO BE INVALID MULTIPLE SEIZURE.  /8/ IMMEDIATELY AFTER THIS
ORDER, WHICH WAS LATER APPEALED AND REVERSED, THE DEFENSE AND THE
PROSECUTION STIPULATED THAT FOR PURPOSES OF THE TRIAL, WHICH WAS
EXPECTED TO BE FORTHCOMING, THE FOUR PRINTS OF THE FILM WOULD BE
CONSIDERED IDENTICAL AND ONLY ONE COPY WOULD HAVE TO BE PROVED AT
TRIAL.  /9/ 

ON JUNE 4, 1974, THE THREE-JUDGE COURT ISSUED ITS JUDGMENT AND
OPINION DECLARING THE CALIFORNIA OBSCENITY STATUTE TO BE
UNCONSTITUTIONAL FOR FAILURE TO SATISFY THE REQUIREMENTS OF MILLER I
AND ORDERING APPELLANTS TO RETURN TO APPELLEES ALL COPISE OF " DEEP
THROAT" WHICH HAD BEEN SEIZED AS WELL AS TO REFRAIN FROM MAKING ANY
ADDITIONAL SEIZURES.  APPELLANTS' CLAIM THAT YOUNGER V. HARRIS, 401
U.S. 37 (1972), AND SAMUELS V. MACKELL, 401 U.S. 66 (1971), REQUIRED
DISMISSAL OF THE CASE WAS REJECTED, THE COURT HOLDING THAT NO CRIMINAL
CHARGES WERE PENDING IN THE STATE COURT AGAINST APPELLEES AND THAT IN
ANY EVENT THE PATTERN OF SEARCH WARRANTS AND SEIZURES DEMONSTRATED BAD
FAITH AND HARASSMENT ON THE PART OF THE AUTHORITIES, ALL OF WHICH
RELIEVED THE COURT FROM THE STRICTURES OF YOUNGER V. HARRIS, SUPRA, AND
ITS RELATED CASES. 

APPELLANTS FILED VARIOUS MOTIONS FOR REHEARING, TO AMEND THE
JUDGMENT, AND FOR RELIEF FROM JUDGMENT, ALSO LATER CALLING THE COURT'S
ATTENTION TO TWO DEVELOPMENTS THEY CONSIDERED IMPORTANT:  FIRST, THE
DISMISSAL ON JULY 25, 1974, "FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION" OF THE APPEAL IN MILLER V. CALIFORNIA, 418 U.S. 915 (MILLER
II), FROM A JUDGMENT OF THE SUPERIOR COURT, APPELLATE DEPARTMENT,
ORANGE COUNTY, CALIFORNIA, SUSTAINING THE CONSTITUTIONALITY OF THE VERY
CALIFORNIA OBSCENITY STATUTE WHICH THE DISTRICT COURT HAD DECLARED
UNCONSTITUTIONAL; SECOND, THE REVERSAL BY THE SUPERIOR COURT, APPELLATE
DEPARTMENT, OF THE SUPPRESSION ORDER WHICH HAD BEEN ISSUED IN THE
CRIMINAL CASE PENDING IN THE MUNICIPAL COURT, THE PER CURIAM REVERSAL
CITING ADAY V. SUPERIOR COURT, 55 CAL. 2D 789, 362 P. 2D 47 (1961), AND
SAYING THE "REQUISITE PROMPT ADVERSARY DETERMINATION OF OBSCENITY UNDER
HELLER V. NEW YORK . . . HAS BEEN HELD."  /10/ 

ON SEPTEMBER 30, THE THREE-JUDGE COURT DENIED APPELLANTS' MOTIONS,
REAFFIRMED ITS JUNE 4 YOUNGER V. HARIS RULING AND, AFTER CONCLUDING IT
WAS NOT BOUND BY THE DISMISSAL OF MILLER II, ADHERED TO ITS JUDGMENT
THAT THE CALIFORNIA STATUTE WAS INVALID UNDER THE FEDERAL
CONSTITUTION.  IN RESPONSE TO APPELLANTS' CLAIM THAT THEY WERE WITHOUT
POWER TO COMPLY WITH THE JUNE 4 INJUNCTION, THE FILMS BEING IN THE
POSSESSION OF THE MUNICIPAL COURT, THE COURT AMENDED THE INJUNCTIVE
PORTION OF ITS ORDER SO AS TO READ AS FOLLOWS: 

" THE DEFENDANTS SHALL IN GOOD FAITH PETITION THE MUNICIPAL COURT OF
THE NORTH ORANGE COUNTY JUDICIAL DISTRICT TO RETURN TO THE PLAINTIFFS
THREE OF THE FOUR FILM PRINTS SEIZED FROM THE PLAINTIFFS ON NOVEMBER 23
AND 24, 1973, IN THE CITY OF BUENA PARK."  APPEALS WERE TAKEN TO THIS
COURT FROM BOTH THE JUDGMENT OF JUNE 4 AND THE AMENDED JUDGMENT OF
SEPTEMBER 30.  WE POSTPONED FURTHER CONSIDERATION OF OUR JURISDICTION
TO THE CONSIDERATION OF THE MERITS OF THE CASE.  419 U.S. 1018 (1974). 
/11/

II 

WE DEAL FIRST WITH QUESTIONS ABOUT OUR JURISDICTION OVER THIS DIRECT
APPEAL UNDER 28 U.S.C. SEC. 1253.  /12/ AT THE OUTSET, THIS CASE WAS
CONCEDEDLY A MATTER FOR A THREE-JUDGE COURT.  APPELLEES' COMPLAINT
ASSERTED AS MUCH, AND THEY DO NOT NOW CONTEND OTHERWISE.  /13/
FURTHERMORE, ON JUNE 4 THE DISTRICT COURT DECLARED THE CALIFORNIA
OBSCENITY STATUTE UNCONSTITUTIONAL AND ORDERED THE RETURN OF ALL COPIES
OF THE FILM THAT HAD BEEN SEIZED.  APPELLEES DO NOT CLAIM THAT THIS
ORDER, WHICH WOULD HAVE ABORTED THE PENDING CRIMINAL PROSECUTION, WAS
NOT AN INJUNCTION WITHIN THE MEANING OF SEC. 1253 AND WAS NOT
APPEALABLE HERE.  THE JURISDICTIONAL ISSUES ARISE FROM EVENTS THAT
OCCURRED SUBSEQUENT TO JUNE 4. 

        A 

THE FIRST QUESTION EMERGES FROM OUR SUMMARY DISMISSAL IN MILLER II.
APPELLANTS CLAIMED IN THE DISTRICT COURT, AND CLAIM HERE, THAT MILLER
II WAS BINDING ON THE DISTRICT COURT AND REQUIRED THAT COURT TO SUSTAIN
THE CALIFORNIA OBSCENITY STATUTE AND TO DISMISS THE CASE.  IF
APPELLANTS ARE CORRECT IN THIS POSITION, THE QUESTION ARISES WHETHER
MILLER II REMOVED THE NECESSITY FOR A THREE-JUDGE COURT UNDER THE RULE
OF BAILEY V. PATTERSON, 369 U.S. 31 (1962), IN WHICH EVENT OUR
APPELLATE JURISDICTION UNDER 28 U.S.C. SEC. 1253 WOULD ALSO EVAPORATE. 

WE AGREE WITH APPELLANTS THAT THE DISTRICT COURT WAS IN ERROR IN
HOLDING THAT IT COULD DISREGARD THE DECISION IN MILLER II.  THAT CASE
WAS AN APPEAL FROM A DECISION BY A STATE COURT UPHOLDING A STATE
STATUTE AGAINST FEDERAL CONSTITUTIONAL ATTACK.  A FEDERAL
CONSTITUTIONAL ISSUE WAS PROPERLY PRESENTED, IT WAS WITHIN OUT
APPELLATE JURISDICTION UNDER SEC. 1257 (2), AND WE HAD NO DISCRETION TO
REFUSE ADJUDICATION OF THE CASE ON ITS MERITS AS WOULD HAVE BEEN TRUE
HAD THE CASE BEEN BROUGHT HERE UNDER OUR CERTIORARI JURISDICTION.  WE
WERE NOT OBLIGATED TO GRANT THE CASE PLENARY CONSIDERATION, AND WE DID
NOT; BUT WE WERE REQUIRED TO DEAL WITH ITS MERITS.  WE DID SO BY
CONCLUDING THAT THE APPEAL SHOULD BE DISMISSED BECAUSE THE
CONSTITUTIONAL CHALLENGE TO THE CALIFORNIA STATUTE WAS NOT A
SUBSTANTIAL ONE.  THE THREE-JUDGE COURT WAS NOT FREE TO DISREGARD THIS
PRONOUNCEMENT.  AS MR. JUSTICE BRENNAN ONCE OBSERVED, "(VOTES TO AFFIRM
SUMMARILY, AND TO DISMISS FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION,
IT HARDLY NEEDS COMMENT, ARE VOTES ON THE MERITS OF A CASE.  . . ." 
OHIO EX REL. EATON V. PRICE, 360 U.S. 246, 247 (1959); COMPARE R. STERN
& E. GRESSMAN, SUPREME COURT PARCTICE 197 (4TH ED. 1969) (" THE COURT
IS, HOWEVER, DECIDING A CASE ON THE MERITS, WHEN IT DISMISSES FOR WANT
OF A SUBSTANTIAL QUESTION . . ."); C. WRIGHT, LAW OF FEDERAL COURTS 495
(2D ED. 1970) (" SUMMARY DISPOSITION OF AN APPEAL, HOWEVER, EITHER BY
AFFIRMANCE OR BY DISMISSAL FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION,
IS A DISPOSITION ON THE MERITS").  THE DISTRICT COURT SHOULD HAVE
FOLLOWED THE SECOND CIRCUIT'S ADVICE, FIRST, IN PORT AUTHORITY
BONDHOLDERS PROTECTIVE COMMITTEE V. PORT OF NEW YORK AUTHORITY, 387
F.2D 259, 263 N. 3 (1967), THAT "UNLESS AND UNTIL THE SUPREME COURT
SHOULD INSTRUCT OTHERWISE, INFERIOR FEDERAL COURTS HAD BEST ADHERE TO
THE VIEW THAT IF THE COURT HAS BRANDED A QUESTION AS UNSUBSTANTIAL, IT
REMAINS SO EXCEPT WHEN DOCTRINAL DEVELOPMENTS INDICATE OTHERWISE"; AND,
LATER, IN DOE V. HODGSON, 478 F.2D 537, 539 (CA2), CERT. DENIED SUB
NOM. DOE V. BRENNAN, 414 U.S. 1096 (1973), THE LOWER COURTS ARE BOUND
BY SUMMARY DECISIONS BY THIS COURT "'UNTIL SUCH TIME AS THE COURT
INFORMS (THEM) THAT (THEY) ARE NOT.'" 

ALTHOUGH THE CONSTITUTIONAL ISSUES WHICH WERE PRESENTED IN MILLER II
AND WHICH WERE DECLARED TO BE INSUBSTANTIAL BY THIS COURT, COULD NOT BE
CONSIDERED SUBSTANTIAL AND DECIDED OTHERWISE BY THE DISTRICT COURT, WE
CANNOT CONCLUDE THAT MILLER II REQUIRED THAT THE THREE-JUDGE COURT BE
DISSOLVED IN THE CIRCUMSTANCES OF THIS CASE.  /14/ APPELLEES, AS
PLAINTIFFS IN THE DISTRICT COURT, NOT ONLY CHALLENGED THE ENFORCEMENT
OF THE OBSCENITY STATUTE BUT ALSO SOUGHT TO ENJOIN THE ENFORCEMENT OF
THE CALIFORNIA SEARCH WARRANT STATUTES, PENAL CODE SEC. 1523 - 1542
(1970 ED. AND SUPP. 1975), INSOFAR AS THEY MIGHT BE APPLIED, CONTRARY
TO HELLER V. NEW YORK, 413 U.S. 483 (1973), TO PERMIT THE MULTIPLE
SEIZURES THAT OCCURRED IN THIS CASE.  THE APPLICATION FOR A PRELIMINARY
INJUNCTION MADE THIS AIM OF THE SUIT QUITE EXPRESS.  THE THREE-JUDGE
COURT IN ITS JUNE 4 DECISION DECLARED THE OBSCENITY STATUTE
UNCONSTITUTIONAL AND ORDERED FOUR COPIES OF THE FILM RETURNED.  ITS
CONSTITUTIONAL CONCLUSION WAS REAFFIRMED ON SEPTEMBER 30, DESPITE
MILLER II, AND ITS INJUNCTION WAS TO SOME EXTENT MODIFIED.  MILLER II,
HOWEVER, HAD NOTHING TO DO WITH THE VALIDITY OF MULTIPLE SEIZURES AS AN
ISSUE WHOLLY INDEPENDENT OF THE VALIDITY OF THE OBSCENITY STATUTES. 
THAT ISSUE--THE VALIDITY, IN LIGHT OF HELLER, OF THE CHALLENGED
APPLICATION OF THE SEARCH WARRANT STATUTES--REMAINED IN THE CASE AFTER
THE MILLER II DISMISSAL.  INDEED, ALTHOUGH THE DISTRICT COURT BASED ITS
INJUNCTIVE ORDER ON THE UNCONSTITUTIONALITY OF THE OBSCENITY STATUTES,
THE INJUNCTION ALSO INTERFERED WITH THE ENFORCEMENT OF THE CALIFORNIA
SEARCH WARRANT STATUTES, NECESSARILY ON CONSTITUTIONAL GROUNDS.  /15/
WITH THIS QUESTION IN THE CASE, THE THREE-JUDGE COURT SHOULD HAVE
REMAINED IN SESSION, AS IT DID, AND, AS IT ALSO DID, SHOULD HAVE DEALT
WITH THE YOUNGER ISSUE BEFORE REACHING THE MERITS OF THE CONSTITUTIONAL
ISSUES PRESENTED.  THAT ISSUE, HOWEVER, AS WE SHOW IN PART III, WAS NOT
CORRECTLY DECIDED. 

B 

APPELLEES CONTEND (1) THAT UNDER GONZALEZ V. AUTOMATIC EMPLOYEES
CREDIT UNION, 419 U.S. 90 (1974), AND MTM, INC. V. BAXLEY, 420 U.S. 799
(1975), THE ONLY INJUNCTIONS ISSUED BY PROPERLY CONVENED THREE-JUDGE
COURTS THAT ARE DIRECTLY APPEALABLE HERE ARE THOSE THAT THREE-JUDGE
COURTS ALONE MAY ISSUE AND (2) THAT THE INJUNCTION FINALLY ISSUED ON
SEPTEMBER 30 WAS NOT ONE THAT IS RESERVED TO A THREE-JUDGE COURT UNDER
28 U.S.C. SEC. 2281.  EVEN IF APPELLEES' PREMISE IS CORRECT, BUT SEE
PHILBROOK V. GLODGETT, 421 U.S. 707, 712 - 713, N. 8 (1975), WE CANNOT
AGREE WITH THE CONCLUSION THAT THE INJUCTION ENTERED HERE WAS NOT
APPEALABLE.  NOT ONLY WAS A STATE STATUTE DECLARED UNCONSTITUTIONAL BUT
ALSO THE INJUNCTIVE ORDER, AS AMENDED SEPTEMBER 30, 1974, REQUIRED
APPELLANTS TO SEEK THE RETURN OF THE THREE PRINTS OF " DEEP THROAT"
WHICH WERE THE SUBJECT OF NINE OF THE 12 COUNTS OF THE AMENDED CRIMINAL
COMPLAINT STILL PENDING IN THE MUNICIPAL COURT.  RETURN OF THE COPIES
WOULD PROHIBIT THEIR USE AS EVIDENCE AND WOULD, FURTHERMORE, PREVENT
THEIR RETENTION AND PROBABLE DESTRUCTION AS CONTRABAND SHOULD THE STATE
PREVAIL IN THE CRIMINAL CASE.  PLAINLY, THE ORDER INTERFERED WITH THE
PENDING CRIMINAL PROSECUTION AND WITH THE ENFORCEMENT OF A STATE
OBSCENITY STATUTE.  IN THE CIRCUMSTANCES HERE, THE INJUNCTIVE ORDER,
ISSUED AS IT WAS BY A FEDERAL COURT AGAINST STATE AUTHORITIES,
NECESSARILY RESTED ON FEDERAL CONSTITUTIONAL GROUNDS.  ASIDE FROM ITS
OPINION THAT THE CALIFORNIA STATUTE WAS UNCONSTITUTIONAL, THE DISTRICT
COURT ARTICULATED NO BASIS FOR ASSUMING AUTHORITY TO ORDER THE RETURN
OF THE FILMS AND IN EFFECT TO NEGATE NOT ONLY THREE OF THE FOUR
SEIZURES UNDER STATE SEARCH WARRANTS, WHICH THE APPELLATE DEPARTMENT OF
THE SUPERIOR COURT HAD UPHELD, BUT ALSO THE PROCEEDINGS IN THE SUPERIOR
COURT THAT HAD DECLARED THE FILM TO BE OBSCENE AND SEIZABLE.  /16/  THE
DISTRICT COURT'S JUNE 4 OPINION, WE THINK, MADE ITS CONSTITUTIONAL
THESIS EXPRESS: 

   " THE GRAVAMEN OF THE DEFENDANTS' JUSTIFICATION IS, OF COURSE,

  THAT THE PROPERTY IS CONTRABAND, BOTH THE EVIDENCE AND THE FRUIT

  OF AN ILLEGAL ACTIVITY.  SUCH A JUSTIFICATION, HOWEVER,

  DISSIPATES IN THE FACE OF A DECLARATION BY THIS COURT THAT THE

  STATUTE IS INVALID." 

WE ACCORDINGLY CONCLUDE THAT THE SEPTEMBER 30 INJUNCTION, AS WELL AS
THE DECLARATORY JUDGMENT UNDERLYING IT, IS PROPERLY BEFORE THE COURT. 

        III 

THE DISTRICT COURT COMMITTED ERROR IN REACHING THE MERITS OF THIS
CASE DESPITE THE STATE'S INSISTENCE THAT IT BE DISMISSED UNDER YOUNGER
V. HARRIS, 401 U.S. 37 (1971), AND SAMUELS V. MACKELL, 401 U.S. 66
(1971).  WHEN THEY FILED THEIR FEDERAL COMPLAINT, NO STATE CRIMINAL
PROCEEDINGS WERE PENDING AGAINST APPELLEES BY NAME; BUT TWO EMPLOYEES
OF THE THEATER HAD BEEN CHARGED AND FOUR COPIES OF " DEEP THROAT"
BELONGING TO APPELLEES HAD BEEN SEIZED, WERE BEING HELD, AND HAD BEEN
DECLARED TO BE OBSCENE AND SEIZABLE BY THE SUPERIOR COURT.  APPELLEES
HAD A SUBSTANTIAL STAKE IN THE STATE PROCEEDINGS, SO MUCH SO THAT THEY
SOUGHT FEDERAL RELIEF, DEMANDING THAT THE STATE STATUTE BE DECLARED
VOID AND THEIR FILMS BE RETURNED TO THEM.  OBVIOUSLY, THEIR INTEREST
AND THOSE OF THEIR EMPLOYEES WERE INTERTWINED; AND, AS WE HAVE POINTED
OUT, THE FEDERAL ACTION SOUGHT TO INTERFERE WITH THE PENDING STATE
PROSECUTION.  ABSENT A CLEAR SHOWING THAT APPELLEES, WHOSE LAWYERS ALSO
REPRESENTED THEIR EMPLOYEES, COULD NOT SEEK THE RETURN OF THEIR
PROPERTY IN THE STATE PROCEEDINGS AND SEE TO IT THAT THEIR FEDERAL
CLAIMS WERE PRESENTED THERE, THE REQUIREMENTS OF YOUNGER V. HARRIS
COULD NOT BE AVOIDED ON THE GROUND THAT NO CRIMINAL PROSECUTION WAS
PENDING AGAINST APPELLEES ON THE DATE THE FEDERAL COMPLAINT WAS FILED. 
THE RULE IN YOUNGER V. HARRIS IS DESIGNED TO "PERMIT STATE COURTS TO
TRY STATE CASES FREE FROM INTERFERENCE BY FEDERAL COURTS," 401 U.S., AT
43, PARTICULARLY WHERE THE PARTY TO THE FEDERAL CASE MAY FULLY LITIGATE
HIS CLAIM BEFORE THE STATE COURT.  PLAINLY, "(THE SAME COMITY
CONSIDERATIONS APPLY," ALLEE V. MEDRANO, 416 U.S. 802, 831 (1974)
(BURGER, C. J., CONCURRING), WHERE THE INTERFERENCE IS SOUGHT BY SOME,
SUCH AS APPELLEES, NOT PARTIES TO THE STATE CASE. 

WHAT IS MORE, ON THE DAY FOLLOWING THE COMPLETION OF SERVICE OF THE
COMPLAINT, APPELLEES WERE CHARGED ALONG WITH THEIR EMPLOYEES IN
MUNICIPAL COURT.  NEITHER STEFFEL V. THOMPSON, 415 U.S. 452 (1974), NOR
ANY OTHER CASE IN THIS COURT HAS HELD THAT FOR YOUNGER V. HARRIS TO
APPLY, THE STATFE CRIMINAL PROCEEDINGS MUST BE PENDING ON THE DAY THE
FEDERAL CASE IS FILED.  INDEED, THE ISSUE HAD BEEN LEFT OPEN; /17/ AND
WE NOW HOLD THAT WHERE STATE CRIMINAL PROCEEDINGS ARE BEGUN AGAINST THE
FEDERAL PLAINTIFFS AFTER THE FEDERAL COMPAINT IS FILED BUT BEFORE ANY
PROCEEDINGS OF SUBSTANCE ON THE MERITS HAVE TAKEN PLACE IN THE FEDEAL
COURT, THE PRINCIPLES OF YOUNGER V. HARRIS SHOULD APPLY IN FULL FORCE. 
HERE, APPELLEES WERE CHARGED ON JANUARY 15, PRIOR TO ANSWERING THE
FEDERAL CASE AND PRIOR TO ANY PROCEEDINGS WHATSOEVER BEFORE THE THREE
JUDGE COURT.  UNLESS WE ARE TO TRIVIALIZE THE PRINCIPLES OF YOUNGER V.
HARRIS, THE FEDERAL COMPLAINT SHOULD HAVE BEEN DISMISSED ON THE STATE'S
MOTION ABSENT SATISFACTORY PROFF OF THOSE EXTRAORDINARY CIRCUMSTANCES
CALLING INTO PLAY ONE OF THE LIMITED EXCEPTIONS TO THE RULE OF YOUNGER
V. HARRIS AND RELATED CASES.  /18/ 

THE DISTRICT COURT CONCLUDED THAT EXTRAORDINARY CIRCUMSTANCES HAD
BEEN SHOWN IN THE FORM OF OFFICIAL HARASSMENT AND BAD FAITH, BUT THIS
WAS ALSO ERROR.  THE RELEVANT FINDINGS OF THE DISTRICT COURT WERE VAGUE
AND CONCLUSORY.  /19/ THERE WERE REFERENCES TO THE "PATTERN OF SEIZURE"
AND TO "THE EVIDENCE BROUGHT TO LIGHT BY THE PETITION FOR REHEARING";
AND THE UNEXPLICATED CONCLUSION WAS THEN DRAWN THAT "REGARDLESS OF THE
NATURE OF ANY JUDICIAL PROCEEDING," THE POLICE WERE BENT ON BANISHING "
DEEP THROAT" FROM BUENA PARK.  YET EACH STEP IN THE PATTERN OF
SEIZURES CONDEMNED BY THE DISTRICT COURT WAS AUTHORIZED BY JUDICIAL
WARRANT OR ORDER; AND THE DISTRICT COURT DID NOT PURPORT TO INVALIDATE
ANY OF THE FOUR WARRANTS IN ANY WAY TO QUESTION THE PROPRIETY OF THE
PROCEEDINGS IN THE SUPERIOR COURT, /20/ OR EVEN TO MENTION THE REVERSAL
OF THE SUPPRESSION ORDER IN THE APPELLATE DEPARTMENT OF THAT COURT. 
ABSENT AT LEAST SOME EFFORT BY THE DISTRICT COURT TO IMPEACH THE
ENTITLEMENT OF THE PROSECUTING OFFICIALS TO RELY ON REPEATED JUDICIAL
AUTHORIZATION FOR THEIR CONDUCT, WE CANNOT AGREE THAT BAD FAITH AND
HARASSMENT WERE MADE OUT.  INDEED, SUCH CONCLUSION WOULD NOT
NECESSARILY FOLLOW EVEN IF IT WERE SHOWN THAT THE STATE COURTS WERE IN
ERROR ON SOME ONE OR MORE ISSUES OF STATE OR FEDERAL LAW.  /21/ 

IN THE LAST ANALYSIS, IT SEEMS TO US THAT THE DISTRICT COURT'S
JUDGMENT RESTS ALMOST ENTIRELY ON ITS CONCLUSION THAT THE CALIFORNIA
OBSCENITY STATUTE WAS UNCONSTITUTIONAL AND UNENFORCEABLE.  BUT EVEN
ASSUMING THAT THE DISTRICT COURT WAS CORRECT IN ITS CONCLUSION, THE
STATUTE HAD NOT BEEN SO CONDEMNED IN NOVEMBER 1973, AND THE DISTRICT
COURT WAS NOT ENTITLED TO INFER OFFICIAL BAD FAITH MERELY BECAUSE IT--
THE DISTRICT COURT--DISAGREED WITH PEOPLE V. ENSKAT.  OTHERWISE, BAD
FAITH AND HARASSMENT WOULD BE PRESENT IN EVERY CASE IN WHICH A STATE
STATUTE IS RULED UNCONSTITUTIONAL, AND THE RULE OF YOUNGER V. HARRIS
WOULD BE SWALLOWED UP BY ITS EXCEPTION.  THE DISTRICT COURT SHOULD HAVE
DISMISSED THE COMPLAINT BEFORE IT AND WE ACCORDINGLY REVERSE ITS
JUDGMENT. 

                          SO ORDERED. 

/1/ THE FIRST WARRANT WAS ISSUED FOLLOWING A VIEWING OF THE FILM BY
AN ORANGE COUNTY MUNICIPAL COURT JUDGE.  THE SAME JUDGE ALSO ISSUED THE
OTHER THREE WARRANTS, THE THIRD ONE AFTER A VIEWING OF THE VERSION OF
THE FILM THE SHOWING.  THE OTHER TWO WARRANTS WERE ISSUED ON AFFIDAVITS
OF POLICE OFFICERS WHO HAD WITNESSED EXHIBITION OF THE FILM.  EACH OF
THE WARAANT AFFIDAVITS OTHER THAN THE FIRST ONE INDICATED THAT THE FILM
TO BE SEIZED WAS IN SOME RESPECTS DIFFERENT FROM THE FIRST PRINT
SEIZED. 

IN RESPONSE TO CLAIMS OF BAD FAITH WHICH WERE LATER MADE AGAINST
THEM, THE FOUR POLICE OFFICER APPELLANTS ASSERTED THAT IN OCTOBER 1973,
SUCCESSIVE SEIZURES OF " DEEP THROAT" HAD BEEN MADE UNDER WARRANT IN
RIVERSIDE COUNTY, CAL.  THE THEATER INVOLVED IN THOSE SEIZURES SOUGHT
FEDERAL RELIEF, WHICH WAS DENIED, THE SEIZURES BEING UPHELD DESPITE
CHALLENGE UNDER HELLER V. NEW YORK, 413 U.S. 483 (1973).  IT WAS AFTER
THIS DECISION, IT WAS ASSERTED, THAT BUENA PARK AUTHORITIES SOUGHT
WARANTS FOR THE SEIZURE OF " DEEP THROAT" SHOWING IN THAT CITY. 

/2/ THE ORDER RAN AGAINST VINCENT MIRANDA, DBA PUSSYCAT THEATRE,
WALNUT PROPERTIES, INC., AND THEATER EMPLOYEES.  ACTUALLY, MIRANDA, WHO
OWNED THE LAND ON WHICH THE THEATER WAS LOCATED, DID BUSINESS AS WALNUT
PROPERTIES, AND PUSSYCAT THEATRE HOLLYWOOD WAS A CALIFORNIA CORPORATION
OF WHICH MIRANDA WAS PRESIDENT AND A STOCKHOLDER.  NOTHING HAS BEEN
MADE BY THE PARTIES OF THIS CONFUSION IN IDENTIFICATION. 

/3/ THE APPARENT BASIS FOR NOT PURSUING APPELLATE REMEDIES IS
ILLUMINATED IN THE COURSE OF THE FOLLOWING COLLOQUY IN THIS CASE
BETWEEN JUDGE FERGUSON AND APPELLESS' COUNSEL WHICH OCCURRED WHEN
APPELLEES SOUGHT RELIEF AGAINST THE SUBSEQUENT ACTIONS OF THE SUPERIOR
COURT, APPELLATE DEPARTMENT, DESCRIBED INFRA, AT 340: 

" THE COURT:  HAVE YOU TAKEN THAT ORDER UP TO THE CALIFORNIA COURT
OF APPEALS? 

" MR. BROWN:  NO, WE HAVE NOT. 

" THE COURT:  WHY NOT? 

" MR. BROWN:  BECAUSE, YOUR HONOR, INITIALLY BACK IN NOVEMBER WHEN
THIS FIRST OCCURRED, THE DAY AFTER THE HEARING WE FILED THE COMPLAINT
IN THIS ACTION AND ONE OF THE BASES FOR RELIEF ALLEGED IN THE COMPLAINT
WAS THE DEPRIVATION OF THE PLAINTIFF'S CONSTITUTIONAL RIGHTS BY VIRTUE
OF THESE PROCEEDINGS AND WE ALLEGED FROM THE VERY BEGINNING THAT THOSE
PROCEEDINGS WERE VIOLATIVE OF CALIFORNIA LAW, CLEARLY, AND VIOLATIVE OF
OUR CONSTITUTIONAL RIGHT AND WE ASKED THIS COURT TO GIVE US RELIEF FROM
THAT SPECIFIC PROCEEDING.  THAT WAS THE INCEPTION OF THIS ACTION, AS A
MATTER OF FACT.  ONCE WE HAD INVOKED THE JURISDICTION OF THIS COURT
PROPERLY WE SOUGHT RELIEF IN THIS COURT AND WE DID NOT PRESS THE MATTER
FURTHER IN THE CALIFORNIA STATE COURTS. 

" THE COURT:  WELL, HOW CAN YOU GO HALFWAY AND NOT GO ALL THE WAY? 

" MR. BROWN:  YOUR HONOR, AT THE VERY FIRST HEARING IN NOVEMBER WE
FILED THE DOCUMENTS WITH THE SUPERIOR COURT STATING THAT WE WERE
RESERVING ALL QUESTIONS OF FEDERAL CONSTITUTIONAL LAW PURSUANT TO THE
ENGLAND CASE.  WE KNEW THAT WE MAY--WE HAD IN MIND THE TRAP THAT CAN BE
SET A LITIGANT IN THESE CIRCUMSTANCES.  IT WAS OUR INTENT FROM THE
BEGINNING TO ALLEGE FEDERAL JURISDICTION AND TO SEEK RELIEF UNDER THE
CIVIL RIGHTS ACT FOR THESE EVENTS AND THAT IS WHY AT THE VERY FIRST
TIME WE APPEARED IN THE ORANGE COUNTY SUPERIOR COURT WE SO INDICATED TO
THE COURT THAT THAT WAS THE CASE. 

" THE COURT:  YES, BUT YOU TOLD ME THAT AUGUST THE 2ND YOU APPEARED
BEFORE THE SUPERIOR COURT IN ORANGE COUNTY AND MADE SOME KIND OF A
MOTION--, 

" MR. BROWN:  BUT AGAIN, YOUR HONOR--, 

" THE COURT:  LET ME FINISH. 

"--TO SET ASIDE JUDGE MC MILLAN'S ORDER WITH REFERENCE TO SEIZURES
OF THESE TWO FILMS.  HE DENIED YOUR REQUEST AND MY QUESTION TO YOU IS A
SIMPLE ONE.  WHEN YOU GO HALFWAY WHY SHOULDN'T YOU BE REQUIRED TO GO
ALL THE WAY? 

        * * * * * 

" MR. BROWN:  IT WAS OUR PURPOSE IN THE BEGINNING NOT TO LITIGATE
THESE CLAIMS IN THE STATE COURT. 

        * * * * * 

" THE COURT:  WELL, DON'T YOU THINK THAT IT IS ONLY FIT AND PROPER
THAT THE CALIFORNIA COURTS SHOULD BE PERMITTED TO ERADICATE ANY
DEFICIENCIES THAT MAY OCCUR IN THE LOWER COURTS? 

        * * * * * 

" THE COURT:  ALL RIGHT.  WHY DON'T YOU TAKE IT UP BEFORE THE
CALIFORNIA SUPREME COURT?  THAT IS MY QUESTION TO YOU. 

" MR. BROWN:  BECAUSE, YOUR HONOR, WE COULD HAVE DONE SO BUT WE ALSO
HAD THE RIGHT TO INVOKE FEDERAL JURISDICTION. 

" THE COURT:  I UNDERSTAND YOU HAVE THE RIGHT.  THAT IS NOT MY
QUESTION, AS TO THE JURISDICTION OF THIS COURT.  MY QUESTION TO YOU IS
WHY HAVEN'T YOU GIVEN THE CALIFORNIA APPELLATE COURTS THE RIGHT AND THE
FORUM TO CORRECT ANY DEFICIENCIES OF THE CALIFORNIA LOWER COURTS THAT
YOU SAY EXIST? 

" MR. BROWN:  YOUR HONOR, THIS IS A SITUATION IN WHICH A LITIGANT
HAS A CHOICE.  IF THERE IS AN UNSETTLED QUESTION--, 

" THE COURT:  ALL RIGHT.  SO YOUR ANSWER IS YOU DO NOT WANT TO.  IS
THAT YOUR ANSWER? 

" MR. BROWN:  THAT'S CORRECT. 

" THE COURT:  ALL RIGHT. 

" MR. BROWN: WE DID NOT WANT TO DO SO BECAUSE WE DID NOT CONSIDER
THE QUESTION OF STATE LAW TO BE AN UNSETTLED QUESTION. 

" THE COURT:  ALL RIGHT." 

/4/ JUDGE LYDICK, UNITED STATES DISTRICT JUDGE, TO WHOM THE CASE HAD
BEEN ASSIGNED FOLLOWING THE INITIAL DISQUALIFICATION OF JUDGE FERGUSON,
MADE THIS RULING.  HIS CONCLUSION WAS THAT APPELLEES HAD "FAILED
TOTALLY TO MAKE THAT SHOWING OF IRREPARABLE DAMAGE, LACK OF AN ADEQUATE
LEGAL REMEDY AND LIKELIHOOD OF PREVAILING ON THE MERITS NEEDED TO
JUSTIFY THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER WHICH WOULD
REQUIRE (THE DEFENDANTS) TO DISOBEY THE ORDERS OF (THE STATE) COURTS
AND WOULD RESTRAIN THE LAWFUL ENFORCEMENT OF A STATE STATUTE." 

/5/ JUDGE FERGUSON, BUT NOT JUDGE LYDICK, WAS DESIGNATED TO SERVE ON
THE THREE-JUDGE PANEL.  THE STATE OF CALIFORNIA INSISTS THAT UNDER 28
U.S.C. SEC. 2284, PROVIDING THAT "(THE DISTRICT JUDGE TO WHOM THE
APPLICATION FOR INJUNCTION OR OTHER RELIEF IS PRESENTED SHALL
CONSTITUTE ONE MEMBER" OF THE THREE-JUDGE COURT, JUDGE LYDICK SHOULD
HAVE BEEN ONE OF THE THREE MEMBERS.  WE DO NOT DEEM THE REQUIREMENT
JURISDICTIONAL, HOWEVER; AND EVEN THOUGH THE ORDER APPOINTING THE THREE
JUDGE COURT CALLED FOR EARLY FILING OF ANY OBJECTIONS TO THE
COMPOSITION OF THE COURT, THE ISSUE WAS NEVER PRESENTED TO THE DISTRICT
COURT BUT IS RAISED HERE FOR THE FIRST TIME, AND IN OUR VIEW TOO LATE. 

/6/ THE MOTION SOUGHT AN INJUNCTION AGAINST THE ENFORCEMENT OF
CALIFORNIA PENAL CODE SEC. 311 ET SEQ. (1970 ED. AND SUPP. 1975), AS
WELL AS SEC. 1523 - 1542 (1970 ED. AND SUPP. 1975).  SECTIONS 1523 -
1542 CONSTITUTE CHAPTER 3 OF THE PENAL CODE ENTITLED " OF SEARCH
WARRANTS."  THE SECTIONS PROVIDE FOR THE ISSUANCE, SERVICE, AND RETURN
OF SEARCH WARRANTS. 

/7/ ACTUALLY, THE AMENDED COMPLAINT NAMED AS DEFENDANTS VINCENT
MIRANDA AND WALNUT PROPERTIES, INC.  SEE N. 2, SUPRA.  IN REFERRING TO
THE AMENDED CRIMINAL COMPLAINT, APPELLEES SPEAK OF THE AMENDMENT OF THE
COMPLAINT TO "INCLUDE" THE NAMES OF THE "APPELLEES."  BRIEF FOR
APPELLEES 43. 

/8/ THE PROSECUTION CLAIMED THAT EACH FILM WAS DIFFERENT, FILED
AFFIDAVITS TO THIS EFFECT, AND ASSERTED THAT THE OFFICIAL POLICY WAS TO
SEIZE ONLY ONE COPY OF A FILM UNLESS DIFFERENT VERSIONS WERE
EXHIBITED.  THE COURT LIMITED ITS ATTENTION TO THE SEARCH WARRANT
AFFIDAVITS WHICH IT SAID DID NOT EXPRESSLY ALLEGE THAT THE LAST TWO
COPIES SEIZED WERE DIFFERENT.     /9/ THE PROSECUTION LATER ASSERTED
THAT THE STIPULATION DID NOT PROVIDE FOR THE RETURN OF THE SUPPRESSED
FILMS OR OF ANY OTHERS.  THE FILMS WERE NOT RETURNED, THE SUPPRESSION
ORDER WAS APPEALED, AND IT WAS REVERSED.  SEE INFRA, THIS PAGE. 

/10/ THE SHOWING OF " DEEP THROAT" HAD MEANWHILE BEEN RESUMED BY
APPELLEES.  SOON AFTER MILLER II AND THE REVERSAL OF THE SUPPRESSION
ORDER, THE SUPERIOR COURT OF ORANGE COUNTY REAFFIRMED ITS ORDER OF
NOVEMBER 27, 1973, AND DIRECTED ADDITIONAL SEIZURES OF " DEEP THROAT." 
SEIZURES UNDER WARRANT WERE ALSO MADE OF THE FILM " THE DEVIL IN MISS
JONES."  AT A SHOW-CAUSE PROCEEDING BEFORE JUDGE FERGUSON SITTING AS A
SINGLE JUDGE, THE JUDGE DECLINED TO HOLD APPELLANTS IN CONTEMPT FOR
FAILING TO RETURN THE COPIES OF " DEEP THROAT" COVERED BY THE JUNE 4
JUDGMENT.  HIS ORAL RULING WAS: 

" THE COURT:  YOU DO NOT HAVE TO ARGUE ABOUT THAT AT ALL ANY MORE. 
MR. BORWN COMES BEFORE THE COURT ARGUING THAT THE CONTEMPT OCCURRED
BECAUSE OF THE FAILURE TO TURN OVER THREE OF THE FILMS AS A RESULT OF
THE NOVEMBER 1973 SEIZURES.  THE DEFENDANTS FILED A MOTION TO
RECONSIDER.  AN OPINION IS CIRCULATING NOW AMONG THE THREE JUDGE COURT
WITH REFERENCE TO THAT MOTION SO IT WOULD BE ABSURD FOR ME TO SAY THAT
THERE WAS A CONTEMPT OF COURT FOR FAILURE TO TURN OVER THREE FILMS. 

 * * * * * 

" THE COURT:  . . ., 

" NOW, WITH REFERENCE TO THE RETURNING OF THREE OF THE FILMS, THE
COURT CANNOT FIND THAT THERE WAS ANY CONTEMPT IN THAT, EITHER,
PRIMARILY BECAUSE THAT ISSUE OF RETURNING THE FILMS HAD BEEN TAKEN
UNDER SUBMISSION BY THE THREE JUDGE COURT AND THERE WAS NO SPECIFIC
ORDER OUTSTANDING WHICH REQUIRED IMMEDIATE COMPLIANCE.  SO THE ORDER TO
SHOW CAUSE WITH REFERENCE TO CONTEMPT WILL BE VACATED." 

JUDGE FERGUSON DID, HOWEVER, ISSUE A PRELIMINARY INJUNCTION AGAINST
FURTHER SEIZURES OF THE TWO FILMS.  TITLE 28 U.S.C. SEC. 2284 (3) AND
(5) FORBID A SINGLE JUDGE TO ISSUE AN INTERLOCUTORY INJUNCTION IN A
THREE-JUDGE-COURT CASE.  THE STATUS OF JUDGE FERGUSON'S PRELIMINARY
INJUNCTION IS NOT AT ISSUE HERE. 

/11/ BECAUSE THE AMENDED JUDGMENT WAS ENTERED IN RESPONSE TO TIMELY
MOTIONS FOR REHEARING AND TO AMEND THE JUNE 4 JUDGMENT, APPELLEES
INSIST THAT IT IS THE AMENDED JUDGMENT THAT IS BEFORE THE COURT. 
APPELLANTS FILED NOTICES OF APPEAL FROM THE JUNE 4 JUDGMENT, DESPITE
THEIR PENDING MOTIONS, AND SOME CONTEND THAT THE DISTRICT COURT HAD NO
JURISDICTION TO ENTER THE SEPTEMBER 30 ORDER.  SOME APPELLANTS ALSO
APPEALED FROM THE SEPTEMBER JUDGMENT, HOWEVER, AND WE THINK THE
APPELLEES HAVE THE BETTER VIEW OF THIS ISSUE.  THE AMENDED JUDGMENT IS
BEFORE US. 

/12/ SECTION 1253 PROVIDES: 

" EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO THE
SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION,
SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

CIRCUMSTANCES: 

" AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE
ENFORCEMENT, OPERATION OR EXECUTION OF ANY STATE STATUTE BY RESTRAINING
THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION
OF SUCH STATUTE OR OF AN ORDER MADE BY AN ADMINISTRATIVE BOARD OR
COMMISSION ACTING UNDER STATE STATUTES, SHALL NOT BE GRANTED BY ANY
DISTRICT COURT OR JUDGE THEREOF UPON THE GROUND OF THE
UNCONSTITUTIONALITY OF SUCH STATUTE UNLESS THE APPLICATION THEREFOR IS
HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES UNDER SECTION
2284 OF THIS TITLE." 

/13/ ALTHOUGH ONLY LOCAL OFFICERS WERE DEFENDANTS, THEY WERE
ENFORCING A STATEWIDE STATUTE AND ARE STATE OFFICERS FOR THE PURPOSES
OF SEC. 1253.  SPIELMAN MOTOR CO. V. DODGE, 295 U.S. 89, 91 - 95
(1935). 

/14/ OF COURSE, MILLER II WOULD HAVE BEEN DECISIVE HERE ONLY IF THE
ISSUES IN MILLER II AND THE PRESENT CASE WERE SUFFICIENTLY THE SAME
THAT MILLER II WAS A CONTROLLING PRECEDENT.  THUS, HAD THE DISTRICT
COURT CONSIDERED ITSELF BOUND BY SUMMARY DISMISSALS OF APPEALS BY THIS
COURT, ITS INITIAL TASK WOULD HAVE BEEN TO ASCERTAIN WHAT ISSUES HAD
BEEN PROPERLY PRESENTED IN MILLER II AND DECLARED BY THIS COURT TO BE
WITHOUT SUBSTANCE.  ASCERTAINING THE REACH AND CONTENT OF SUMMARY
ACTIONS MAY ITSELF PRESENT ISSUES OF REAL SUBSTANCE, AND IN
CIRCUMSTANCES WHERE THE CONSTITUTIONALITY OF A STATE STATUTE IS AT
STAKE, THAT UNDERTAKING ITSELF MAY BE ONE FOR A THREE-JUDGE COURT. 
WHETHER THAT IS THE CASE HERE WE NEED NOT DECIDE. 

/15/ IN ADAY V. SUPERIOR COURT, 55 CAL. 2D 789, 362 P.2D 47 (1961),
THE CALIFORNIA SUPREME COURT SUSTAINED USE OF A SEARCH WARRANT TO
EFFECT A MASSIVE SEIZURE OF OBSCENE BOOKS PENDING OUTCOME OF A CRIMINAL
TRIAL.  THE COURT REJECTED A FIRST AMENDMENT PRIOR-RESTRAINT CLAIM,
REFERRING TO THE OBSCENE BOOKS AS "CONTRABAND" AND NOTING THAT THIS
COURT HAD ALLOWED INTERIM RELIEF TO THE STATES IN OBSCENITY CASES IN
ORDER TO "PREVENT FRUSTRATION OF JUDICIAL CONDEMNATION OF OBSCENE
MATTER."  LATER DECISIONS OF THIS COURT, E. G., A QUANTITY OF BOOKS V.
KANSAS, 378 U.S. 205 (1964), HAVE UNDERMINED ADAY INSOFAR AS IT PERMITS
THE STATE, ABSENT A PRIOR ADVERSARY HEARING, TO BLOCK THE "DISTRIBUTION
OR EXHIBITION," HELLER V. NEW YORK, 413 U.S. 483, 492 (1973), OF FILMS
OR BOOKS BY SEIZING THEM IN GREATER QUANTITIES THAN IS NECESSARY FOR
USE AS EVIDENCE IN A CRIMINAL CASE OR OTHER JUDICIAL PROCEEDINGS. 
HOWEVER, IN REVERSING THE MUNICIPAL COURT'S SUPPRESSION ORDER, SEE
SUPRA, AT 340, WE TAKE THE SUPERIOR COURT'S REFERENCE TO ADAY TO MEAN
THAT THE NOVEMBER SEIZURES EFFECTED BY SEARCH WARRANT WERE VALID UNDER
THAT CASE AND UNDER THE STATE STATUTE ONCE A PROMPT ADVERSARY HEARING
TO DETERMINE OBSCENITY IS HELD, WHICH HEARING IN ITS VIEW WOULD REMOVE
ANY CONSTITUTIONAL OBJECTION UNDER HELLER V. NEW YORK, SUPRA, TO
RETENTION OF MORE THAN ONE COPY OF " DEEP THROAT."  THE DISTRICT
COURT'S INJUNCTION NEVERTHELESS REQUIRED THE RETURN OF THREE OF THE
SEIZED FILMS.  WE DO NOT, OF COURSE, PASS UPON THE MERITS OF THE
REVERSAL OF THE SUPPRESSION ORDER OR THE VIEWS EXPRESSED THEREIN. 

/16/ THE DISTRICT COURT NOTED THAT PROSECUTION AND DEFENSE COUNSEL,
FOLLOWING THE SUPPRESSION ORDER IN THE MUNICIPAL COURT, STIPULATED THAT
THE FOUR COPIES WOULD BE DEEMED IDENTICAL AND ONLY ONE COPY NEED BE
PROVED.  HOWEVER, THE PROSECUTION DENIED ANY AGREEMENT TO RETURN THE
SUPPRESSED FILMS, SUCCESSFULY APPEALED THE SUPPRESSION ORDER, AND
ASSERTED THAT THE DISTRICT COURT'S ORDER INTERFERED WITH THE
PROSECUTION OF ITS CASE.  AS WE HAVE SAID, THE JUDGMENT OF THE DISTRICT
COURT ALSO INTERFERED WITH THE ENFORCEMENT OF THE CALIFORNIA SEARCH
WARRANT STATUTES. 

/17/ AT LEAST SOME JUSTICES HAVE THOUGHT SO.  PEREZ V. LEDESMA, 401
U.S. 82, 117 N. 9 (1971) (BRENNAN, J., JOINED BY WHITE AND MARSHALL,
JJ., CONCURRING AND DISSENTING).  ALSO, STEFFEL V. THOMPSON, SUPRA, DID
NOT DECIDE WHETHER AN INJUNCTION, AS WELL AS A DECLARATORY JUDGMENT,
CAN BE ISSUED WHEN NO STATE PROSECUTION IS PENDING. 

/18/ APPELLEES ALSO ARGUE THAT DISMISSAL UNDER YOUNGER V. HARRIS WAS
NOT REQUIRED BECAUSE PEOPLE V. ENSKAT, 33 CAL. APP. 3D 900, 109 CAL.
RPTR.  433 (1973), HAD SETTLED THE CONSTITUTIONAL ISSUE IN THE STATE
COURTS WITH RESPECT TO THE OBSCENITY STATUTE.  BUT YOUNGER V. HARRIS IS
NOT SO EASILY AVOIDED.  STATE COURTS, LIKE OTHER COURTS, SOMETIMES
CHANGE THEIR MINDS.  MOREOVER, PEOPLE V. ENSKAT WAS THE DECISION OF AN
INTERMEDIATE APPELLATE COURT OF THE STATE, AND THE SUPREME COURT OF
CALIFORNIA COULD HAVE AGAIN BEEN ASKED TO PASS UPON THE
CONSTITUTIONALITY OF THE CALIFORNIA STATUTE.  IN ANY EVENT, THE WAY WAS
OPEN FOR APPELLEES TO PRESENT THEIR FEDERAL ISSUES TO THIS COURT IN THE
EVENT OF ADVERSE DECISION IN THE CALIFORNIA COURTS. 

/19/ THE JUNE 4 OPINION STATED: 

" FINALLY, THE OBJECTIVE FACTS SET FORTH IN THE FIRST PART OF THIS
OPINION CLEARLY DEMONSTRATE BAD FAITH AND HARASSMENT WHICH WOULD
JUSTIFY FEDERAL INTERVENTION.  ANY EDITORIALIZING OF THOSE FACTS WOULD
SERVE NO PURPOSE.  IT IS SUFFICIENT TO NOTE THAT THE PATTERN OF
SEIZURES OF THE PLAINTIFFS' CASH RECEIPTS AND FILMS DEMONSTRATES) THAT
THE POLICE WERE BENT UPON A COURSE OF ACTION THAT, REGARDLESS OF THE
NATURE OF ANY JUDICIAL PROCEEDING, WOULD EFFECTIVELY EXORCISE THE MOVIE
' DEEP THROAT' OUT OF BUENA PARK." 

ALSO, IN THE SUPPLIEMENTAL OPINION OF SEPTEMBER 30, 1974, THE
DISTRICT COURT STATED:  "THE EVIDENCE BROUGHT TO LIGHT BY THE PETITION
FOR REHEARING ONLY SERVES TO STRENGTHEN THE PREVIOUS FINDING OF BAD
FAITH AND HARASSMENT," OBSERVING ONLY THAT NO EXPLANATION HAD BEEN
OFFERED FOR NOT INSTITUTING CRIMINAL PROCEEDINGS AGAINST APPELLEES
UNTIL AFTER THE FEDERAL COMPLAINT WAS FILED AGAINST THEM AND THAT "(W)
ITHOUT SUCH AN EXPLANATION IT IS REASONABLE FOR THE COURT TO CONCLUDE
THAT THE INSTITUTION OF THE CRIMINAL PROCEEDINGS WAS IN RETALIATION FOR
THE ATTEMPT BY PLAINTIFFS TO HAVE THEIR CONSTITUTIONAL RIGHTS
JUDICIALLY DETERMINED IN THIS COURT." 

/20/ IT HAS BEEN NOTED THAT APPELLEES DID NOT APPEAL THE SUPERIOR
COURT'S ORDER OF NOVEMBER 29, 1973, DECLARING " DEEP THROAT" OBSCENE
AND ORDERING ALL COPIES OF IT SEIZED.  IT MAY BE THAT UNDER HUFFMAN V.
PURSUE, LTD., 420 U.S. 592 (1975), THE FAILURE OF APPELLEES TO APPEAL
THE SUPERIOR COURT ORDER OF NOVEMBER 27, 1973, WOULD ITSELF FORECLOSE
RESORT TO FEDERAL COURT, ABSENT EXTRAORDINARY CIRCUMSTANCES BRINGING
THE CASE WITHIN SOME EXCEPTION TO YOUNGER V. HARRIS.  APPELLEES NOW
ASSERT, SEEMINGLY CONTRARY TO THEIR PRIOR STATEMENT BEFORE JUDGE
FERGUSON, SEE SUPRA, AT 337 N. 3, THAT THE NOVEMBER 27 ORDER WAS NOT
APPEALABLE.  IN VIEW OF OUR DISPOSITION OF THE CASE, WE NEED NOT PURSUE
THE MATTER FURTHER. 

/21/ WE NEED NOT, AND DO NOT, OURSELVES DECIDE OR INTIMATE ANY
OPINION AS TO WHETHER THE SUPERIOR COURT PROCEEDINGS WERE, AS CLAIMED
BY APPELLEES, UNAUTHORIZED UNDER CALIFORNIA LAW. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN THE OPINION OF THE COURT BUT I ADD A WORD ABOUT THE
COMPOSITION OF THE THREE-JUDGE DISTRICT COURT AND THE CIRCUMSTANCES
UNDER WHICH IT WAS CONVENED.  UNDER 28 U.S.C. SEC. 2284 (1) THE
DISTRICT JUDGE TO WHOM THE APPLICATION FOR RELIEF IS PRESENTED, AND WHO
NOTIFIES THE CHIEF JUDGE OF THE NEED TO CONVENE THE THREE-JUDGE COURT,
"SHALL CONSTITUTE ONE MEMBER OF SUCH COURT."  IT IS WELL SETTLED THAT
"SHALL" MEANS "MUST," CF. MERCED ROSA V. HERRERO, 423 F.2D 591, 593
N.2D (CA1 1970), YET THE JUDGE WHO CALLED FOR THE THREE-JUDGE COURT
HERE WAS NOT NAMED TO THE PANEL.  HOWEVER, APPELLANTS MADE NO TIMELY
OBJECTION TO THE COMPOSITION OF THER COURT.  ANTE, AT 338 N.5. 
OBVIOUSLY OCCASIONS CAN ARISE RENDERING IT IMPOSSIBLE FOR THE DISTRICT
JUDGE WHO INITIATES THE CONVENING OF SUCH A COURT UNDER SEC. 2284 (1)
TO SERVE ON THE COURT, BUT, IN LIGHT OF THE UNQUALIFIED MANDATORY
LANGUAGE OF THE STATUTE, WHEN THAT OCCURS THERE IS AN OBLIGATION TO SEE
TO IT THAT THE RECORD REVEAL, AT THE VERY LEAST, A STATEMENT OF THE
CIRCUMSTANCES ACCOUNTING FOR THE SUBSTITUTION. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

THERE ARE MANY ASPECTS OF THE COURT'S OPINION THAT SEEM TO ME OPEN
TO SERIOUS CHALLENGE.  THIS DISSENT, HOWEVER, IS DIRECTED ONLY TO PART
III OF THE OPINION, WHICH HOLDS THAT "(THE DISTRICT COURT COMMITTED
ERROR IN REACHING THE MERITS OF THIS CASE DESPITE THE STATE'S
INSISTENCE THAT IT BE DISMISSED UNDER YOUNGER V. HARRIS.  . ., AND
SAMUELS V. MACKELL." 

IN STEFFEL V. THOMPSON, 415 U.S. 452, THE COURT UNANIMOUSLY HELD
THAT THE PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM EMBODIED IN
YOUNGER V. HARRIS, 401 U.S. 37, AND SAMUELS V. MACKELL, 401 U.S. 66, DO
NOT PRECLUDE A FEDERAL DISTRICT COURT FROM ENTERTAINING AN ACTION TO
DECLARE UNCONSTITUTIONAL A STATE CRIMINAL STATUTE WHEN A STATE CRIMINAL
PROSECUTION IS THREATENED BUT NOT PENDING AT THE TIME THE FEDERAL
COMPLAINT IS FILED.  TODAY THE COURT HOLDS THAT THE STEFFEL DECISION IS
INOPERATIVE IF A STATE CRIMINAL CHARGE IS FILED AT ANY POINT AFTER THE
COMMENCEMENT OF THE FEDERAL ACTION "BEFORE ANY PROCEEDINGS OF SUBSTANCE
ON THE MERITS HAVE TAKEN PLACE IN THE FEDERAL COURT."  ANTE, AT 349. 
ANY OTHER RULE, SAYS THE COURT, WOULD "TRIVIALIZE" THE PRINCIPLES OF
YOUNGER V. HARRIS.  I THINK THIS RULING "TRIVIALIZES" STEFFEL, DECIDED
JUST LAST TERM, AND IS INCONSISTENT WITH THOSE SAME PRINCIPLES OF
EQUITY, COMITY, AND FEDERALISM.  /1/ 

THERE IS, TO BE SURE, SOMETHING UNSEEMLY ABOUT HAVING THE
APPLICABILITY OF THE YOUNGER DOCTRINE TURN SOLELY ON THE OUTCOME OF A
RACE TO THE COURTHOUSE.  THE RULE THE COURT ADOPTS TODAY, HOWEVER, DOES
NOT ELIMINATE THAT RACE; IT MERELY PERMITS THE STATE TO LEAVE THE MARK
LATER, RUN A SHORTER COURSE, AND ARRIVE FIRST AT THE FINISH LINE.  THIS
RULE SEEMS TO ME TO RESULT FROM A FAILURE TO EVALUATE THE SATE AND
FEDERAL INTERESTS AS OF THE TIME THE STATE PROSECUTION WAS COMMENCED. 

AS OF THE TIME WHEN ITS JURISDICTION IS INVOKED IN A STEFFEL
SITUATION, A FEDERAL COURT IS CALLED UPON TO VINDICATE FEDERAL
CONSTITUTIONAL RIGHTS WHEN NO ITHER REMEDY IS AVAILABLE TO THE FEDERAL
PLAINTIFF.  THE COURT HAS RECOGNIZED THAT AT THIS POINT IN THE
PROCEEDINGS NO SUBSTANTIAL STATE INTERESTS COUNSEL THE FEDERAL COURT TO
STAY ITS HAND.  THUS, IN LAKE CARRIERS' ASSN. V. MAC MULLAN, 406 U.S.
498, WE NOTED THAT "CONSIDERATIONS OF EQUITY PRACTICE AND COMITY IN OUR
FEDERAL SYSTEM . . . HAVE LITTLE FORCE IN THE ABSENCE OF A PENDING
STATE PROCEEDING."  ID., AT 509.  AND IN STEFFEL, A UNANIMOUS COURT
EXPLAINED THE BALANCE OF INTERESTS THIS WAY: 

     " WHEN NO STATE CRIMINAL PROCEEDING IS PENDING AT THE TIME THE

  FEDERAL COMPLAINT IS FILED, FEDERAL INTERVENTION DOES NOT RESULT

IN DUPLICATIVE LEGAL PROCEEDINGS OR DISRUPTION OF THE STATE

  CRIMINAL JUSTICE SYSTEM; NOR CAN FEDERAL INTERVENTION, IN THAT

  CIRCUMSTANCE, BE INTERPRETED AS REFLECTING NEGATIVELY UPON THE

  STATE COURT'S ABILITY TO ENFORCE CONSTITUTIONAL PRINCIPLES.  IN

  ADDITION, WHILE A PENDING STATE PROSECUTION PROVIDES THE FEDERAL

  PLAINTIFF WITH A CONCRETE OPPORTUNITY TO VINDICATE HIS

  CONSTITUTIONAL RIGHTS, A REFUSAL ON THE PART OF THE FEDERAL

  COURTS TO INTERVENE WHEN NO STATE PROCEEDING IS PENDING MAY PLACE

  THE HAPLESS PLAINTIFF BETWEEN THE SCYLLA OF INTENTIONALLY

  FLOUTING STATE LAW AND THE CHARYBDIS OF FORGOING WHAT HE BELIEVES

  TO BE CONSTITUTIONALLY PROTECTED ACTIVITY IN ORDER TO AVOID

BECOMING ENMESHED IN A CRIMINAL PROCEEDING."  415 U.S., AT 462. 

CONSEQUENTLY, WE CONCLUDED THAT "(REQUIRING THE FEDERAL COURTS
TOTALLY TO STEP ASIDE WHEN NO STATE CRIMINAL PROSECUTION IS PENDING
AGAINST THE FEDERAL PLAINTIFF WOULD TURN FEDERALISM ON ITS HEAD."  ID.,
AT 472.  IN SUCH CIRCUMSTANCES, "THE OPPORTUNITY FOR ADJUDICATION OF
CONSTITUTIONAL RIGHTS IN A FEDERAL FORUM, AS AUTHORIZED BY THE
DECLARATORY JUDGMENT ACT, BECOMES PARAMOUNT."  ELLIS V. DYSON, 421 U.S.
426, 432.  SEE ALSO HUFFMAN V. PURSUE, LTD., 420 U.S. 592, 602 - 603. 
THE DUTY OF THE FEDERAL COURTS TO ADJUDICATE AND VINDICATE FEDERAL
CONSTITUTIONAL RIGHTS IS, OF COURSE, SHARED WITH STATE COURTS, BUT
THERE CAN BE NO DOUBT THAT THE FEDERAL COURTS ARE "THE PRIMARY AND
POWERFUL RELIANCES FOR VINDICATING EVERY RIGHT GIVEN BY THE
CONSTITUTION, THE LAWS, AND TREATIES OF THE UNITED STATES." 
F.FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT:  A STUDY
IN THE FEDERAL JUDICIAL SYSTEM 65 (1927).  THE STATUTE UNDER WHICH THIS
ACTION WAS BROUGHT, 42 U.S.C. SEC. 1983, ESTABLISHED IN OUR LAW "THE
ROLE OF THE FEDERAL GOVERNMENT AS A GUARANTOR OF BASIC FEDERAL RIGHTS
AGAINST STATE POWER."  MITCHUM V. FOSTER, 407 U.S. 225, 239.  INDEED,
"(THE VERY PURPOSE OF SEC. 1983 WAS TO INTERPOSE THE FEDERAL COURTS
BETWEEN THE STATES AND THE PEOPLE."  ID., AT 242.  SEE ALSO ZWICKLER V.
KOOTA, 389 U.S. 241, 245, 248; MC NEESE V. BOARD OF EDUCATION, 373 U.S.
668; MONROE V. PAPE, 365 U.S. 167.  AND THIS CENTRAL INTEREST OF A
FEDERAL COURT AS GUARANTOR OF CONSTITUTIONAL RIGHTS IS FULLY IMPLICATED
FROM THE MOMENT ITS JURISDICTION IS INVOKED.  HOW, THEN, DOES THE
SUBSEQUENT FILING OF A STATE CRIMINAL CHARGE CHANGE THE SITUATION FROM
ONE IN WHICH THE FEDERAL COURT'S DISMISSAL OF THE ACTION UNDER YOUNGER
PRINCIPLES "WOULD TURN FEDERALISM ON ITS HEAD" TO ONE IN WHICH FAILURE
TO DISMISS WOULD "TRIVIALIZE" THOSE SAME PRINCIPLES? 

A STATE HAS A VITAL INTEREST IN THE ENFORCEMENT OF ITS CRIMINAL LAW,
AND THIS COURT HAS SAID TIME AND AGAIN THAT IT WILL SANCTION LITTLE
FEDERAL INTERFERENCE WITH THAT IMPORTANT STATE FUNCTION.  E.G., KUGLER
V. HELFANT, 421 U.S. 117.  BUT THERE IS NOTHING IN OUR DECISION IN
STEFFEL THAT REQUIRES A STATE TO STAY ITS HAND DURING THE PENDENCY OF
THE FEDERAL LITIGATION.  IF, IN THE INTEREST OF EFFICIENCY, THE STATE
WISHES TO REGRAIN FROM ACTIVELY PROSECUTING THE CRIMINAL CHARGE PENDING
THE OUTCOME OF THE FEDERAL DECLARATORY JUDGMENT SUIT, IT MAY, OF
COURSE, DO SO.  BUT NO DECISION OF THIS COURT REQUIRES IT TO MAKE THAT
CHOICE. 

THE COURT TODAY, HOWEVER, GOES MUCH FURTHER THAN SIMPLY RECOGNIZING
THE RIGHT OF THE STATE TO PROCEED WITH THE ORDERLY ADMINISTRATION OF
ITS CRIMINAL LAW; IT OUSTS THE FEDERAL COURTS FROM THEIR HISTORIC ROLE
AS THE "PRIMARY RELIANCES" FOR VINDICATING CONSTITUTIONAL FREEDOMS. 
THIS IS NO LESS OFFENSIVE TO " OUR FEDERALISM" THAN THE FEDERAL
INJUNCTION RESTRAINING PENDING STATE CRIMINAL PROCEEDINGS CONDEMNED IN
YOUNGER V. HARRIS.  THE CONCEPT OF FEDERALISM REQUIRES "SENSITIVITY TO
THE LEGITIMATE INTERESTS OF BOTH STATE AND NATIONAL GOVERNMENTS."  401
U.S., AT 44 (EMPHASIS ADDED).  YOUNGER V. HARRIS AND ITS COMPANION
CASES REFLECT THE PRINCIPLES THAT THE FEDERAL JUDICIARY MUST REFRAIN
FROM INTERFERING WITH THE LEGITIMATE FUNCTIONING OF STATE COURTS.  BUT
SURELY THE CONVERSE IS A PRINCIPLE NO LESS VALID. 

THE COURT'S NEW RULE CREATES A REALITY WHICH FEW STATE PROSECUTORS
CAN BE EXPECTED TO IGNORE.  IT IS AN OPEN INVITATION TO STATE OFFICIALS
TO INSTITUTE STATE PROCEEDINGS IN ORDER TO DEFEAT FEDERAL
JURISDICTION.  /2/ ONE NEED NOT IMPUGN THE MOTIVES OF STATE OFFICIALS
TO SUPPOSE THAT THEY WOULD RATHER PROSECUTE A CRIMINAL SUIT IN STATE
COURT THAN DEFEND A CIVIL CASE IN A FEDERAL FORUM.  TODAY'S OPINION
VIRTUALLY INSTRUCTS STATE OFFICIALS TO ANSWER FEDERAL COMPLAINTS WITH
STATE INDICTMENTS.  TODAY, THE STATE MUST FILE A CRIMINAL CHARGE TO
SECURE DISMISSAL OF THE FEDERAL LITIGATION; PERHAPS TOMORROW AN ACTION
"AKIN TO A CRIMINAL PROCEEDING" WILL SERVE THE PURPOSE, SEE HUFFMAN V.
PURSUE, LTD., SUPRA; AND THE DAY MAY NOT BE FAR OFF WHEN ANY STATE
CIVIL ACTION WILL DO. 

THE DOCTRINE OF YOUNGER V. HARRIS REFLECTS AN ACCOMMODATION OF
COMPETING INTERESTS.  THE RULE ANNOUNCED TODAY DISTORTS THAT BALANCE
BEYOND RECOGNITION. 

/1/ THERE IS THE ADDITIONAL DIFFICULTY THAT THE PRECISE MEANING OF
THE RULE THE COURT TODAY ADOPTS IS A GOOD DEAL LESS THAN APPARENT. 
WHAT ARE "PROCEEDINGS OF SUBSTANCE ON THE MERITS"?  PRESUMABLY, THE
PROCEEDINGS MUST BE BOTH "ON THE MERITS" AND "OF SUBSTANCE."  DOES THIS
MEAN, THEN, THAT MONTHS OF DISCOVERY ACTIVITY WOULD BE INSUFFICIENT, IF
NO QUESTION ON THE MERITS IS PRESENTED TO THE COURT DURING THAT TIME? 
WHAT PROCEEDINGS "ON THE MERITS" ARE SUFFICIENT IS ALSO UNCLEAR.  AN
APPLICATION FOR A TEMPORARY RESTRAINING ORDER OR A PRELIMINARY
INJUNCTION REQUIRES THE COURT TO MAKE AN ASSESSMENT ABOUT THE
LIKELIHOOD OF SUCCESS ON THE MERITS.  INDEED, IN THIS CASE, APPELLEES
FILED AN APPLICATION FOR A TEMPORARY RESTRAINING ORDER ALONG WITH SIX
SUPPORTING AFFIDAVITS ON NOVEMBER 29, 1973.  APPELLANTS RESPONDED ON
DECEMBER 3, 1973, WITH SIX AFFIDAVITS OF THEIR OWN AS WELL AS
ADDITIONAL DOCUMENTS.  ON DECEMBER 28, 1973, JUDGE LYDICK DENIED THE
REQUEST FOR A TEMPORARY RESTRAINING ORDER, IN PART BECAUSE APPELLEES
"HAVE FAILED TOTALLY TO MAKE THAT SHOWING OF . . . LIKELIHOOD OF
PREVAILING ON THE MERITS NEEDED TO JUSTIFY THE ISSUANCE OF A TEMPORARY
RESTRAINING ORDER."  THESE PROCEEDINGS, THE COURT SAYS IMPLICITLY, WERE
NOT SUFFICIENT TO SATISFY THE TEST IT ANNOUNCES.  WHY THAT SHOULD BE,
EVEN IN TERMS OF THE COURT'S HOLDING, IS A MYSTERY. 

/2/ THE DISTRICT COURT FOUND THAT THE FILING OF THE STATE CRIMINAL
COMPLAINT, SIX WEEKS AFTER THE STATE HAD APPEARED TO OPPOSE THE
APPELLEES' APPLICATION FOR A TEMPORARY RESTRAINING ORDER BUT ONLY A DAY
AFTER SERVICE OF THE COMPLAINT WAS EFFECTED, "WOULD SEEM TO SUPPLY
ADDED JUSTIFICATION" FOR ITS FINDING OF HARASSMENT.  THE COURT
CONCLUDED "THAT THE INSTITUTION OF THE CRIMINAL PROCEEDINGS WAS IN
RETALIATION FOR THE ATTEMPT BY PLAINTIFFS TO HAVE THEIR CONSTITUTIONAL
RIGHTS JUDICIALLY DETERMINED IN THIS COURT." 

ORETTA D. SEARS, PRO SE, AND ARLO E. SMITH, ASSISTANT ATTORNEY
GENERAL OF CALIFORNIA, ARGUED THE CAUSE FOR APPELLANTS.  WITH THEM ON
THE BRIEFS WERE EVELLE J. YOUNGER, ATTORNEY GENERAL, JACK R. WINKLER,
CHIEF ASSISTANT ATTORNEY GENERAL, EDWARD P. O' BRIEN, ASSISTANT
ATTORNEY GENERAL, ALVIN J. KNUDSON, DEPUTY ATTORNEY GENERAL, CECIL
HICKS, PRO SE, MICHAEL R. CAPIZZI, AND RONALD H. BEVINS. 

STANLEY FLEISHMAN AND SAM ROSENWEIN ARGUED THE CAUSE FOR APPELLEES. 
WITH THEM ON THE BRIEF WAS DAVID M. BROWN. 
..END :











CITY OF RICHMOND V. UNITED STATES, 422 US 358 


       CITY OF RICHMOND, VIRGINIA V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA

        NO. 74 - 201.  ARGUED APRIL 23, 1975--DECIDED JUNE 24,
1975;

 376 F. SUPP. 1344, VACATED AND REMANDED. 


IN 1969 A VIRGINIA COURT APPROVED ANNEXATION BY THE CITY OF RICHMOND,
EFFECTIVE JANUARY 1, 1970, OF AN ADJACENT AREA IN CHESTERFIELD COUNTY,
WHICH REDUCED THE PROPORTION OF NEGROES IN RICHMOND FROM 52% TO 42%.
THE PREANNEXATION NINE-MAN CITY COUNCIL, WHICH WAS ELECTED AT LARGE,
HAD THREE MEMBERS WHO WERE ENDORSED BY A NEGRO CIVIC ORGANIZATION.  IN
A POSTANNEXATION AT-LARGE ELECTION IN 1970, THREE OF THE NINE MEMBERS
ELECTED WERE ALSO ENDORSED BY THAT ORGANIZATION.  FOLLOWING THIS
COURT'S HOLDING IN PERKINS V. MATTHEWS, 400 U.S. 379, THAT SEC. 5 OF
THE VOTING RIGHTS ACT OF 1965 (ACT) REACHES THE EXTENSION OF A CITY'S
BOUNDARIES THROUGH ANNEXATION, THE CITY OF RICHMOND UNSUCCESSFULLY
SOUGHT THE ATTORNEY GENERAL'S APPROVAL OF THE CHESTERFIELD COUNTY
ANNEXATION.  MEANWHILE RESPONDENT HOLT BROUGHT AN ACTION IN FEDERAL
COURT IN VIRGINIA CHALLENGING THE ANNEXATION ON CONSTITUTIONAL GROUNDS,
AND THE DISTRICT COURT ISSUED A DECISION (HOLT I) HOLDING THAT THE
ANNEXATION HAD AN ILLEGAL RAICIAL PURPOSE, AND ORDERED A NEW ELECTION. 
THE COURT OF APPEALS REVERSED.  IN THE INTERIM, HOLT HAD BROUGHT
ANOTHER SUIT (HOLT II) IN THE DISTRICT COURT SEEKING TO HAVE THE
ANNEXATION INVALIDATED UNDER SEC. 5 OF THE ACT FOR LACK OF THE APPROVAL
REQUIRED BY THE ACT.  AS THE RESULT OF THE HOLT II SUIT, WHICH WAS
STAYED PENDING THE OUTCOME OF THE INSTANT LITIGATION, FURTHER CITY
COUNCIL ELECTIONS HAVE BEEN ENJOINED AND THE 1970 COUNCIL HAS REMAINED
IN OFFICE.  HAVING RECEIVED NO RESPONSE FROM THE ATTORNEY GENERAL TO A
RENEWED APPROVAL REQUEST, THE CITY BROUGHT THIS SUIT IN THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA, SEEKING APPROVAL OF THE ANNEXATION
AND RELYING ON THE COURT OF APPEALS'  DECISION IN HOLT I. SHORTLY
THEREAFTER, THE DISTRICT COURT DECIDED CITY OF PETERSBURG V. UNITED
STATES, 354 F.SUPP.  1021, AFF'D, 410 U.S. 962, INVALIDATING ANOTHER
VIRGINIA ANNEXATION PLAN WHERE AT-LARGE COUNCIL ELECTIONS WERE THE RULE
BEFORE AND AFTER ANNEXATION BUT INDICATING THAT APPROVAL COULD BE
OBTAINED IF "MODIFICATIONS CALCULATED TO NEUTRALIZE.  . . ANY ADVERSE
EFFECT UPON THE POLITICAL PARTICIPATION OF BLACK VOTERS ARE ADOPTED,
I.E., THAT THE PLAINTIFF SHIFT FROM AN AT-LARGE TO A WARD SYSTEM OF
ELECTING ITS CITY COUNCILMEN."  RICHMOND THEREAFTER DEVELOPED AND THE
ATTORNEY GENERAL APPROVED A PLAN FOR NINE WARDS, FOUR WITH SUBSTANTIAL
BLACK MAJORITIES, FOUR WITH SUBSTANTIAL WHITE MAJORITIES, AND THE NINTH
WITH A 59% WHITE, 41% BLACK DIVISION.  FOLLOWING OPPOSITION BY
INTERVENORS, THE PLAN WAS REFERRED TO A SPECIAL MASTER, WHO CONCLUDED
THAT THE CITY HAD NOT MET ITS BURDEN OF PROVING THAT THE ANNEXATION'S
PURPOSE WAS NOT TO DILUTE THE BLACK VOTE, AND THAT THE WARD PLAN DID
NOT CURE THE RACIALLY DISCRIMINATORY PURPOSE.  ADDITIONALLY, HE
CONCLUDED THAT THE ANNEXATION'S DILUTING EFFECT HAD NOT BEEN DISSIPATED
TO THE GREATEST EXTENT POSSIBLE, THAT NO ACCEPTABLE OFFSETTING ECONOMIC
OR ADMINISTRATIVE BENEFITS HAD BEEN SHOWN, AND THAT DEANNEXATION WAS
THE ONLY ACCEPTABLE REMEDY FOR THE SEC. 5 VIOLATIONS.  EXCEPT FOR THE
DEANNEXATION RECOMMENDATION, THE DISTRICT COURT ACCEPTED THE SPECIAL
MASTER'S FINDINGS AND CONCLUSIONS.  THE DISTRICT COURT CONCLUDED THAT
"(IF THE PROPORTION OF BLACKS IN THE NEW CITIZENRY FROM THE ANNEXED
AREA IS APPRECIABLY LESS THAN THE PROPORTION OF BLACKS LIVING WITHIN
THE CITY'S OLD BOUNDARIES, AND PARTICULARLY IF THERE IS A HISTORY OF
RACIAL BLOC VOTING IN THE CITY, THE VOTING POWER OF BLACK CITIZENS AS A
CLASS IS DILUTED AND THUS ABRIDGED."  THE MATTER OF THE REMEDY TO BE
FASHIONED WAS LEFT FOR RESOLUTION IN THE STILL-PENDING HOLT II.  HELD: 

1.  AN ANNEXATION REDUCING THE RELATIVE POLITICAL STRENGTH OF THE
MINORITY RACE IN THE ENLARGED CITY AS COMPARED WITH WHAT IT WAS BEFORE
THE ANNEXATION DOES NOT VIOLATE SEC. 5 OF THE ACT AS LONG AS THE
POSTANNEXATION SYSTEM FAIRLY RECOGNIZES, AS IT DOES IN THIS CASE, THE
MINORITY'S POLITICAL POTENTIAL.  PP. 367 - 372. 

(A) ALTHOUGH PERKINS V. MATTHEWS, SUPRA, HELD THAT BOUNDARY CHANGES
BY ANNEXATION HAVE A SUFFICIENT POTENTIAL FOR RACIAL VOTING
DISCRIMINATION TO REQUIRE SEC. 5 APPROVAL PROCEDURES, THIS DOES NOT
MEAN THAT EVERY ANNEXATION EFFECTING A PERCENTAGE REDUCTION IN THE
NEGRO POPULATION IS PROHIBITED BY SEC. 5.  THOUGH ANNEXATION OF AN AREA
WITH A WHITE MAJORITY, COMBINED WITH AT-LARGE COUNCILMANIC ELECTIONS
AND RACIAL VOTING CREATE OR ENHANCE THE POWER OF THE WHITE MAJORITY TO
EXCLUDE NEGROES TOTALLY FROM THE CITY COUNCIL, THAT CONSEQUENCE CAN BE
SATISFACTORILY OBVIATED IF AT-LARGE ELECTIONS ARE REPLACED BY A WARD
SYSTEM OF CHOOSING COUNCILMEN, AFFORDING NEGROES REPRESENTATION
REASONABLY EQUIVALENT TO THEIR POLITICAL STRENGTH IN THE ENLARGED
COMMUNITY.  THOUGH THE BLACK COMMUNITY, IF THERE IS RACIAL BLOC VOTING,
WILL HAVE FEWER COUNCILMEN, A DIFFERENT CITY COUNCIL AND AN ENLARGED
CITY ARE INVOLVED IN THE ANNEXATION.  NEGROES, MOREOVER, WILL NOT BE
UNDERREPRESENTED.  PP. 368 - 371. 

(B) THE PLAN HERE UNDER REVIEW DOES NOT UNDERVALUE THE
POSTANNEXATION BLACK VOTING STRENGTH OR HAVE THE EFFECT OF DENYING OR
ABRIDGING THE RIGHT TO VOTE WITHIN THE MEANING SEC. 5.  PP. 371 - 372. 

2.  SINCE SEC. 5 FORBIDS VOTING CHANGES MADE FOR THE PURPOSE OF
DENYING THE VOTE FOR RACIAL REASONS, FURTHER PROCEEDINGS ARE NECESSARY
TO UPDATE AND REASSESS THE EVIDENCE BEARING UPON THE ISSUE WHETHER THE
CITY HAS SOUND, NONDISCRIMINATORY ECONOMIC AND ADMINISTRATIVE REASONS
FOR RETAINING THE ANNEXED AREA, IT NOT BEING CLEAR THAT THE SPECIAL
MASTER AND THE DISTRICT COURT ADEQUATELY CONSIDERED THE EVIDENCE IN
DECIDING WHETHER THERE ARE NOW JUSTIFIABLE REASONS FOR THE ANNEXATION
THAT TOOK PLACE ON JANUARY 1, 1970.  PP. 372 - 379. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, BLACKMUN, AND REHNQUIST, JJ., JOINED.  BRENNAN, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED,
POST, P. 379.  POWELL, J., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

UNDER SEC. 5 OF THE VOTING RIGHTS ACT OF 1965, 79 STAT. 439, AS
AMENDED, 42 U.S.C. SEC. 1973C, /1/ A STATE OR SUBDIVISION THEREOF
SUBJECT TO THE ACT MAY NOT ENFORCE ANY CHANGE IN "ANY VOTING
QUALIFICATION OR PREREQUISITE TO VOTING" UNLESS SUCH CHANGE HAS EITHER
BEEN APPROVED BY THE ATTORNEY GENERAL OR THAT OFFICER HAS FAILED TO ACT
WITHIN 60 DAYS AFTER SUBMISSION TO HIM, OR UNLESS IN A SUIT BROUGHT BY
SUCH STATE OR SUBDIVISION THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA HAS ISSUED ITS DECLARATORY JUDGMENT THAT SUCH
CHANGE "DOES NOT HAVE THE PURPOSE AND WILL NOT HAVE THE EFFECT OF
DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR . .
. ."  PERKINS V. MATTHEWS, 400 U.S. 379 (1971), HELD THAT SEC. 5
REACHES THE EXTENSION OF A CITY'S BOUNDARIES THROUGH THE PROCESS OF
ANNEXATION.  HERE, THE CITY OF RICHMOND ANNEXED LAND FORMERLY IN
CHESTERFIELD COUNTY, AND THE ISSUE IS WHETHER THE CITY IN ITS
DECLARATORY JUDGMENT ACTION BROUGHT IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA HAS CARRIED ITS BURDEN OF PROOF OF DEMONSTRATING
THAT THE ANNEXATION HAD NEITHER THE PURPOSE NOR THE EFFECT OF DENYING
OR ABRIDGING THE RIGHT TO VOTE OF THE RICHMOND NEGRO COMMUNITY ON
ACCOUNT OF ITS RACE OR COLOR. 

        I 

THE CONTROLLING VIRGINIA STATUTES /2/ PERMIT CITIES TO ANNEX ONLY
AFTER OBTAINING A FAVORABLE JUDGMENT FROM A SPECIALLY CONSTITUTED THREE
JUDGE ANNEXATION COURT.  IN 1962, THE CITY SOUGHT JUDICIAL APPROVAL OF
TWO ANNEXATION ORDINANCES, ONE SEEKING TO ANNEX APPROXIMATELY 150
SQUARE MILES OF HENRICO COUNTY AND THE OTHER APPROXIMATELY 51 SQUARE
MILES OF CHESTERFIELD COUNTY.  THE HENRICO CASE, WHICH WAS PROTRACTED,
PROCEEDED FIRST.  IN 1965, THE ANNEXATION COURT AUTHORIZED THE
ANNEXATION OF 16 SQUARE MILES OF HENRICO COUNTY; BUT BECAUSE OF A $55
MILLION FINANCIAL OBLIGATION WHICH, AS IT TURNED OUT, ANNEXATION WOULD
ENTAIL, THE CITY COUNCIL DETERMINED THAT THE ANNEXATION WAS NOT IN THE
CITY'S BEST INTEREST.  THE HENRICO CASE WAS ACCORDINGLY DISMISSED. 

THE CITY THEN PROCEEDED WITH THE CHESTERFIELD CASE.  IN MAY 1969, A
COMPROMISE LINE WAS APPROVED BY THE CITY AND CHESTERFIELD COUNTY AND
INCORPORATED IN A DECREE OF JULY 12, 1969, /3/ WHICH AWARDED THE CITY
APPROXIMATELY 23 SQUARE MILES OF LAND ADJACENT TO THE CITY IN
CHESTERFIELD COUNTY.  THE PREANNEXATION POPULATION OF THE CITY AS OF
1970 WAS 202,359, OF WHICH 104,207 OR 52% WERE BLACK CITIZENS.  THE
ANNEXATION ADDED TO THE CITY 47,262 PEOPLE, OF WHOM 1,557 WERE BLACK
AND 45,705 WERE NONBLACK.  THE POSTANNEXATION POPULATION OF THE CITY
WAS THEREFORE 249,621, OF WHICH 105,764 OR 42% WERE NEGROES.  THE
ANNEXATION BECAME EFFECTIVE ON JANUARY 1, 1970, AND THE CITY HAS
EXERCISED JURISDICTION OVER THE AREA SINCE THAT TIME. 

BEFORE AND IMMEDIATELY AFTER ANNEXATION, THE CITY HAD A NINE-MAN
COUNCIL, WHICH WAS ELECTED AT LARGE.  IN 1968, THREE CANDIDATES
ENDORSED BY THE CRUSADE FOR VOTERS OF RICHMOND, A BLACK CIVIC
ORGANIZATION, WERE ELECTED TO THE COUNCIL.  IN THE POSTANNEXATION, AT
LARGE ELECTION IN 1970, THREE OF THE NINE MEMBERS ELECTED HAD ALSO
RECEIVED THE ENDORSEMENT OF THE CRUSADE.  /4/ 

ON JANUARY 14, 1971, A DIVIDED COURT IN PERKINS V. MATTHEWS, SUPRA,
HELD THAT SEC. 5 OF THE VOTING RIGHTS ACT APPLIED TO CITY ANNEXATIONS. 
ON JANUARY 28, 1971, THE CITY OF RICHMOND SOUGHT THE ATTORNEY GENERAL'S
APPROVAL OF THE CHESTERFIELD ANNEXATION.  ON MAY 7, 1971, AFTER
REQUESTING AND RECEIVING ADDITIONAL MATERIALS FROM THE CITY, THE
ATTORNEY GENERAL DECLINED TO APPROVE THE VOTING CHANGE, WHICH HE DEEMED
THE ANNEXATION TO REPRESENT, SAYING THAT THE ANNEXATION SUBSTANTIALLY
INCREASED THE PROPORTION OF WHITES AND DECREASED THE PROPORTION OF
BLACKS IN THE CITY AND THAT THE ANNEXATION "INEVITABLY TENDS TO DILUTE
THE VOTING STRENGTH OF BLACK VOTERS."  1 APP. 24.  THE ATTORNEY GENERAL
SUGGESTED, HOWEVER, THAT "(YOU MAY, OF COURSE, WISH TO CONSIDER MEANS
OF ACCOMPLISHING ANNEXATION WHICH WOULD AVOID PRODUCING AN
IMPERMISSIBLE ADVERSE RACIAL IMPACT ON VOTING, INCLUDING SUCH
TECHNIQUES AS SINGLE-MEMBER DISTRICTS."  IBID.  FOLLOWING REVERSAL BY
THIS COURT OF THE DISTRICT COURT'S JUDGMENT IN CHAVIS V. WHITCOMB, 305
F.SUPP.  1364 (SD IND. 1969), REV'D, 403 U.S. 124 (1971), A DECISION ON
WHICH THE ATTORNEY GENERAL HAD RELIED IN DISAPPROVING THE CHESTERFIEDL
ANNEXATION, THE CITY'S REQUEST FOR RECONSIDERATION WAS DENIED BY THE
ATTORNEY GENERAL ON SEPTEMBER 30, 19718 AGAIN WITH THE SUGGESTION THAT
"SINGLE-MEMBER, NON-RACIALLY DRAWN COUNCILMANIC DISTRICTS" WOULD BE
"ONE MEANS OF MINIMIZING THE RACIAL EFFECT OF THE ANNEXATION . . . ." 
1 APP. 32. 

MEANWHILE ON FEBRUARY 4, 1971, RESPONDENT CURTIS HOLT BROUGHT AN
ACTION (HOLT I) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA, ASSERTING THAT THE ANNEXATION DENIED RICHMOND
NEGROES THEIR RIGHTS UNDER THE FIFTEENTH AMENDMENT.  IN NOVEMBER 1971,
THE DISTRICT COURT RULED IN THAT SUIT THAT THE ANNEXATION HAD HAD AN
ILLEGAL RACIAL PURPOSE AND ORDERED A NEW ELECTION OF THE CITY COUNCIL,
SEVEN COUNCILMEN TO BE ELECTED AT LARGE FROM THE OLD CITY AND TWO
PRIMARILY FROM THE ANNEXED AREA.  HOLT V. CITY OF RICHMOND, 334
F.SUPP.  228.  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, SITTING EN
BANC, REVERSED, ON MAY 3, 1972, 459 F.2D 1093, CERT. DENIED, 408 U.S.
931 (1972), HOLDING THAT NO FIFTEENTH AMENDMENT RIGHTS WERE VIOLATED,
THAT THE CITY HAD VALID REASONS FOR SEEKEING TO ANNEX IN 1962, AND THAT
THE RECORD WOULD SUPPORT NO FINDING THAT THE 1969 ANNEXATION WAS NOT
MOTIVATED BY THE SAME CONSIDERATIONS. 

ON DECEMBER 9, 1971, HOLT BEGAN ANOTHER SUIT (HOLT II) IN THE
EASTERN DISTRICT OF VIRGINIA, THIS TIME SEEKING TO HAVE THE ANNEXATION
DECLARED INVALID UNDER SEC. 5 OF THE VOTING RIGHTS ACT FOR FAILURE TO
HAVE SECURED EITHER THE APPROVAL OF THE ATTORNEY GENERAL OR OF THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  AS THE
RESULT OF THIS LITIGATION, WHICH WAS STAYED PENDING THE OUTCOME OF THE
PRESENT SUIT, FURTHER CITY COUNCIL ELECTIONS HAVE BEEN ENJOINED AND THE
COUNCIL ELECTED IN 1970 HAS REMAINED IN OFFICE. 

UPON DENIAL OF CERTIORARI IN HOLT I, SUPRA, THE ATTORNEY GENERAL WAS
AGAIN ASKED TO MODIFY HIS DISAPPROVAL OF THE ANNEXATION BECAUSE OF THE
FOURTH CIRCUIT'S DECISION THAT NO IMPERMISSIBLE PURPOSE HAD ACCOMPANIED
THE ANNEXATION AND THAT FIFTEENTH AMENDMENT RIGHTS HAD NOT BEEN
VIOLATED.  RECEIVING NO RESPONSE FROM THE ATTORNEY GENERAL, THE CITY
FILED THE PRESENT SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA ON AUGUST 25, 1972, SEEKING APPROVAL OF THE
ANNEXATION AND RELYING ON THE FOURTH CIRCUIT'S DECISION IN HOLT I.
RESPONDENT HOLT AND THE CRUSADE FOR VOTERS INTERVENED. 

SHORTLY THEREAFTER, CITY OF PETERSBURG V. UNITED STATES, 354
F.SUPP.  1021 (1972), WAS DECIDED BY THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA.  THERE, THE DISTRICT COURT HELD INVALID
AN ANNEXATION BY A VIRGINIA CITY, WHERE AT-LARGE COUNCIL ELECTIONS WERE
THE RULE BOTH BEFORE AND AFTER THE ANNEXATION BUT INDICATED THAT
APPROVAL COULD BE HAD "ON THE CONDITION THAT MODIFICATIONS CALCULATED
TO NEUTRALIZE TO THE EXTENT POSSIBLE ANY ADVERSE EFFECT UPON THE
POLITICAL PARTICIPATION OF BLACK VOTERS ARE ADOPTED, I.E., THAT THE
PLAINTIFF SHIFT FROM AN AT-LARGE TO A WARD SYSTEM OF ELECTING ITS CITY
COUNCILMEN."  ID., AT 1031.  WE AFFIRMED THAT JUDGMENT.  410 U.S. 962
(1973). 

THEREAFTER, RICHMOND DEVELOPED AND SUBMITTED TO THE ATTORNEY GENERAL
VARIOUS PLANS FOR ESTABLISHING COUNCILMANIC DISTRICTS IN THE CITY. 
WITH SOME MODIFICATION, TO WHICH THE CITY COUNCIL AGREED, THE ATTORNEY
GENERAL INDICATED APPROVAL OF ONE OF THESE PLANS.  THIS WAS A NINE-WARD
PROPOSAL UNDER WHICH FOUR OF THE WARDS WOULD HAVE SUBSTANTIAL BLACK
MAJORITIES, FOUR WARDS SUBSTANTIAL WHITE MAJORITIES, AND THE NINTH A
RACIAL DIVISION OF APPROXIMATELY 59% WHITE AND 41% BLACK.  THE CITY AND
THE ATTORNEY GENERAL SUBMITTED THIS PLAN TO THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA IN THE FORM OF A CONSENT JUDGMENT.  THE
INTERVENORS OPPOSED IT, AND THE DISTRICT COURT REFERRED THE CASE TO A
SPECIAL MASTER FOR HEARINGS AND RECOMMENDATIONS.  /5/ THE SPECIAL
MASTER SUBMITTED RECOMMENDED FINDINGS OF FACT AND CONSLUSIONS OF LAW. 
BASED ON THE STATEMENTS OF VARIOUS OFFICIALS OF THE CITY AND OTHER
EVENTS WHICH HE FOUND TO HAVE TAKEN PLACE, THE MASTER CONCLUDED THAT
THE CITY HAD NOT MET ITS BURDEN OF PROVING THAT THE ANNEXATION DID NOT
HAVE THE PURPOSE OF DILUTING THE RIGHT OF BLACK PERSONS TO VOTE, AND
THAT THE WARD PLAN DID NOT CURE THE DISCRIMINATORY RACIAL PURPOSE
ACCOMPANYING THE ANNEXATION.  IN ADDITION, HE CONCLUDED THAT IN ANY
EVENT THE DILUTING EFFECT OF THE ANNEXATION HAD NOT BEEN DISSIPATED TO
THE GREATEST EXTENT REASONABLY POSSIBLE, THAT THE CITY HAD NOT
DEMONSTRATED ANY ACCEPTABLE COUNTERBALANCING ECONOMIC AND
ADMINISTRATIVE BENEFITS, AND THAT DEANNEXATION WAS THE ONLY ACCEPTABLE
REMEBY FOR THE VIOLATIONS OF SEC. 5 WHICH HAD BEEN FOUND. 

THE DISTRICT COURT, 376 F.SUPP.  1344 (1974), ESSENTIALLY ACCEPTED
THE FINDINGS AND CONCLUSIONS OF THE SPECIAL MASTER EXCEPT FOR HIS
RECOMMENDATION WITH RESPECT TO DEANNEXATION.  BASED ON THE SPECIAL
MASTER'S FINDINGS, THE DISTRICT COURT CONCLUDED THAT THE CITY'S "1970
CHANGES IN ITS ELECTION PRACTICES FOLLOWING UPON THE ANNEXATION WERE
DISCRIMINATORY IN PURPOSE AND EFFECT AND THUS VIOLATIVE OF SECTION 5'S
SUBSTANTIVE STANDARDS AS WELL AS THE SECTION'S PROCEDURAL COMMAND THAT
PRIOR APPROVAL BE OBTAINED FROM THE ATTORNEY GENERAL OR THIS COURT." 
ID., AT 1352.  THE DISTRICT COURT WENT ON TO HOLD THAT THE INVIDIOUS
RACIAL PURPOSE UNDERLYING THE ANNEXATION HAD NOT BEEN ELIMINATED SINCE
NO "OBJECTIVELY VERIFIABLE, LEGITIMATE PURPOSE FOR ANNEXATION" HAD BEEN
SHOWN AND SINCE THE WARD PLAN DOES NOT EFFECTIVELY ELIMINATE NOR
SUFFICIENTLY COMPENSATE FOR THE DILUTION OF THE BLACK VOTING POWER
RESULTING FROM THE ANNEXATION.  ID., AT 1353 - 1354.  FURTHERMORE, IN
FASHIONING THE WARD SYSTEM THE CITY HAD NOT, THE COURT HELD, MINIMIZED
THE DILUTION OF BLACK VOTING POWER TO THE GREATEST POSSIBLE EXTENT,
RELYING FOR THIS CONCLUSION ON ANOTHER WARD PLAN PRESENTED BY
INTERVENORS WHICH WOULD HAVE IMPROVED THE CHANCE THAT NEGROES WOULD
CONTROL FIVE OUT OF THE NINE WARDS.  THE ANNEXATION COULD NOT BE
APPROVED, THEREFORE, BECAUSE IT ALSO HAD THE FORBIDDEN EFFECT OF
DENYING THE RIGHT TO VOTE OF THE NEGRO COMMUNITY IN RICHMOND. 

THE DISTRICT COURT, HOWEVER, DECLINED TO ORDER DEANNEXATION, AND
LEFT THE MATTER OF THE REMEDY TO BE FASHIONED IN HOLT II, STILL PENDING
IN THE EASTERN DISTRICT OF VIRGINIA.  WE NOTED PROBABLE JURISDICTION,
419 U.S. 1067 (1974). 

        II 

WE DEAL FIRST WITH WHETHER THE ANNEXATION INVOLVED HERE HAD THE
EFFECT OF DENYING OR ABRIDGING THE RIGHT TO VOTE WITHIN THE
CONTEMPLATION OF SEC. 5 OF THE VOTING RIGHTS ACT. 

PERKINS V. MATTHEWS, SUPRA, HELD THAT CHANGES IN CITY BOUNDARIES BY
ANNEXATION HAVE SUFFICIENT POTENTIAL FOR DENYING OR ABRIDGING THE RIGHT
TO VOTE ON ACCOUNT OF RACE OR COLOR THAT PRIOR TO BECOMING EFFECTIVE
THEY MUST HAVE THE ADMINISTRATIVE OR JUDICIAL APPROVAL REQUIRED BY SEC.
5.  BUT IT WOULD BE DIFFICULT TO CONCEIVE OF ANY ANNEXATION THAT WOULD
NOT CHANGE A CITY'S RACIAL COMPOSITION AT LEAST TO SOME EXTENT; AND WE
DID NOT HOLD IN PERKINS THAT EVERY ANNEXATION EFFECTING A REDUCTION IN
THE PERCENTAGE OF NEGROES IN THE CITY'S POPULATION IS PROHIBITED BY
SEC. 5.  WE DID NOT HOLD, AS THE DISTRICT COURT ASSERTED, THAT "(IF THE
PROPORTION OF BLACKS IN THE NEW CITIZENRY FROM THE ANNEXED AREA IS
APPRECIABLY LESS THAN THE PROPORTION OF BLACKS LIVING WITHIN THE CITY'S
OLD BOUNDARIES, AND PARTICULARLY IF THERE IS A HISTORY OF RACIAL BLOC
VOTING IN THE CITY, THE VOTING POWER OF BLACK CITIZENS AS A CLASS IS
DILUTED AND THUS ABRIDGED," 376 F.SUPP., AT 1348 (FOOTNOTE OMITTED),
AND THAT THE ANNEXATION THUS VIOLATES SEC. 5 AND CANNOT BE APPROVED. 

IN CITY OF PETERSBURG V. UNITED STATES, SUPRA, THE CITY SOUGHT A
DECLARATORY JUDGMENT THAT A PROPOSED ANNEXATION SATISFIED THE STANDARDS
OF SEC. 5.  COUNCILMEN WERE ELECTED AT LARGE; NEGROES MADE UP MORE THAN
HALF THE POPULATION, BUT LESS THAN HALF THE VOTERS; AND THE AREA TO BE
ANNEXED CONTAINED A HEAVY WHITE MAJORITY.  A THREE-JUDGE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA, ALTHOUGH FINDING NO EVIDENCE OF A
RACIALLY DISCRIMINATORY PURPOSE, HELD THAT IN THE CONTEXT OF AT-LARGE
ELECTIONS, THE ANNEXATION WOULD HAVE THE EFFECT OF DENYING THE RIGHT TO
VOTE BECAUSE IT WOULD CREATE OR PERPETUATE A WHITE MAJORITY IN THE CITY
AND, POSITING RACIAL VOTING WHICH WAS FOUND TO BE PREVALENT, IT WOULD
ENHANCE THE POWER OF THE WHITE MAJORITY TOTALLY TO EXCLUDE NEGROES FROM
THE CITY COUNCIL.  THE COURT HELD, HOWEVER, THAT A REDUCTION OF A
RACIAL GROUP'S RELATIVE POLITICAL STRENGTH IN THE COMMUNITY DOES NOT
ALWAYS DENY OR ABRIDGE THE RIGHT TO VOTE WITHIN THE MEANING OF SEC. 5: 

     " IF THE VIEW OF THE DIAMOND INTERVENORS CONCERNING WHAT

  CONSTITUTES A DENIAL OR ABRIDGMENT IN ANNEXATION CASES WERE TO

  PREVAIL, NO COURT COULD EVER APPROVE ANY ANNEXATION IN AREAS

  COVERED BY THE VOTING RIGHTS ACT IF THERE WERE A HISTORY OF

  RACIAL BLOC-VOTING IN LOCAL ELECTIONS FOR ANY OFFICE AND IF THE

  RACIAL BALANCE WERE TO SHIFT IN EVEN THE SMALLEST DEGREE AS A

  RESULT OF THE ANNEXATION.  IT WOULD NOT MATTER THAT THE

  ANNEXATION WAS ESSENTIAL FOR THE CONTINUED ECONOMIC HEALTH OF A

  MUNICIPALITY OR THAT IT WAS FAVORED BY CITIZENS OF ALL RACES;

  BECAUSE IF THE DEMOGRAPHIC MAKEUP OF THE SURROUNDING AREAS WERE

  SUCH THAT ANY ANNEXATION WOULD PRODUCE A SHIFT OF MAJORITY

  STRENGTH FROM ONE RACE TO ANOTHER, A COURT WOULD BE REQUIRED TO

  DISAPPROVE IT WITHOUT EVEN CONSIDERING ANY OTHER EVIDENCE, AND

  THE MUNICIPALITY WOULD BE EFFECTIVELY LOCKED INTO ITS ORIGINAL

  BOUNDARIES.  THIS COURT CANNOT AGREE THAT THIS WAS THE INTENT OF

  CONGRESS WHEN IT ENACTED THE VOTING RIGHTS ACT."  354 F.SUPP., AT

  1030 (FOOTNOTE OMITTED). 

THE COURT WENT ON TO HOLD THAT THE EFFECT ON THE RIGHT TO VOTE
FORBIDDEN BY SEC. 5, WHICH HAD BEEN FOUND TO EXIST IN THE CASE, COULD
BE CURED BY A WARD PLAN FOR ELECTING COUNCILMEN IN THE ENLARGED CITY: 

     " THE COURT CONCLUDES THEN, THAT THIS ANNEXATION, INSOFAR AS
IT

  IS A MERE BOUNDARY CHANGE AND NOT AN EXPANSION OF AN AT-LARGE

  SYSTEM, IS NOT THE KIND OF DISCRIMINATORY CHANGE WHICH CONGRESS

  SOUGHT TO PREVENT; BUT IT ALSO CONCLUDES, IN ACCORDANCE WITH THE

  ATTORNEY GENERAL'S FINDINGS, THAT THIS ANNEXATION CAN BE APPROVED

  ONLY ON THE CONDITION THAT MODIFICATIONS CALCULATED TO NEUTRALIZE

  TO THE EXTENT POSSIBLE ANY ADVERSE EFFECT UPON THE POLITICAL

PARTICIPATION OF BLACK VOTERS ARE ADOPTED, I.E., THAT THE

  PLAINTIFF SHIFT FROM AN AT-LARGE TO A WARD SYSTEM OF ELECTING ITS

  CITY COUNCILMEN."  ID., AT 1031. 

THE JUDGMENT ENTERED BY THE DISTRICT COURT IN THE PETERSBURG CASE,
ALTHOUGH REFUSING THE DECLARATORY JUDGMENT IN THE CONTEXT OF AT-LARGE
ELECTIONS, RETAINED JURISDICTION AND DIRECTED THAT "PLAINTIFF PREPARE A
PLAN FOR CONDUCTING ITS CITY COUNCIL ELECTIONS IN ACCORDANCE WITH THE
REQUIREMENTS OF THE VFOTING RIGHTS ACT AS INTERPRETED BY THIS COURT . .
. ."  JURISDICTIONAL STATEMENT IN CITY OF PETERSBURG V. UNITED STATES,
NO. 72 - 865, O.T. 1972, P. 25A.  IN ITS APPEAL, THE CITY PRESENTED THE
QUESTION, AMONG OTHERS, WHETHER THE DISTRICT COURT WAS CORRECT IN
CONDITIONING APPROVAL OF THE ANNEXATION UPON THE ADOPTION OF THE PLAN
TO ELECT COUNCILMEN BY WARDS.  WE AFFIRMED THE JUDGMENT WITHOUT
OPINION.  410 U.S. 962 (1973). 

PETERSBURG WAS CORRECTLY DECIDED.  ON THE FACTS THERE PRESENTED, THE
ANNEXATION OF AN AREA WITH A WHITE MAJORITY, COMBINED WITH AT-LARGE
COUNCILMANIC ELECTIONS AND RACIAL VOTING, CREATED OR ENHANCED THE POWER
OF THE WHITE MAJORITY TO EXCLUDE NEGROES TOTALLY FROM PARTICIPATION IN
THE GOVERNING OF THE CITY THROUGH MEMBERSHIP ON THE CITY COUNCIL.  WE
AGREED, HOWEVER, THAT THAT CONSEQUENCE WOULD BE SATISFACTORILY OBVIATED
IF AT-LARGE ELECTIONS WERE REPLACED BY A WARD SYSTEM OF CHOOSING
COUNCILMEN.  IT IS OUR VIEW THAT A FAIRLY DESIGNED WARD PLAN IN SUCH
CIRCUMSTANCES WOULD NOT ONLY PREVENT THE TOTAL EXCLUSION OF NEGROES
FROM MEMBERSHIP ON THE COUNCIL BUT WOULD AFFORD THEM REPRESENTATION
REASONABLY EQUIVALENT TO THEIR POLITICAL STRENGTH IN THE ENLARGED
COMMUNITY. 

WE CANNOT ACCEPT THE POSITION THAT SUCH A SINGLEMEMBER WARD SYSTEM
WOULD NEVERTHELESS HAVE THE EFFECT OF DENYING OR ABRIDGING THE RIGHT TO
VOTE BECAUSE NEGROES WOULD CONSTITUTE A LESSER PROPORTION OF THE
POPULATION AFTER THE ANNEXATION THAN BEFORE AND, GIVEN RACIAL BLOC
VOTING, WOULD HAVE FEWER SEATS ON THE CITY COUNCIL.  IF A CITY HAVING A
WARD SYSTEM FOR THE ELECTION OF A NINE-MAN COUNCIL ANNEXES A LARGELY
WHITE AREA, THE WARDS ARE FAIRLY REDRAWN, AND AS A RESULT NEGROES HAVE
ONLY TWO RATHER THAN THE FOUR SEATS THEY HAD BEFORE, THESE FACTS ALONE
DO NOT DEMONSTRATE THAT THE ANNEXATION HAS THE EFFECT OF DENYING OR
ABRIDGING THE RIGHT TO VOTE.  AS LONG AS THE WARD SYSTEM FAIRLY
REFLECTS THE STRENGTH OF THE NEGRO COMMUNITY AS IT EXISTS AFTER THE
ANNEXATION, WE CANNOT HOLD, WITHOUT MORE SPECIFIC LEGISLATIVE
DIRECTIONS, THAT SUCH AN ANNEXATION IS NEVERTHELESS BARRED BY SEC. 5. 
IT IS TRUE THAT THE BLACK COMMUNITY, IF THERE IS RACIAL BLOC VOTING,
WILL COMMAND FEWER SEATS ON THE CITY COUNCIL; AND THE ANNEXATION WILL
HAVE EFFECTED A DECLINE IN THE NEGROES' RELATIVE INFLUENCE IN THE
CITY.  BUT A DIFFERENT CITY COUNCIL AND AN ENLARGED CITY ARE INVOLVED
AFTER THE ANNEXATION.  FURTHERMORE, NEGRO POWER IN THE NEW CITY IS NOT
UNDERVALUED, AND NEGROES WILL NOT BE UNDERREPRESENTED ON THE COUNCIL. 

AS LONG AS THIS IS TRUE, WE CANNOT HOLD THAT THE EFFECT OF THE
ANNEXATION IS TO DENY OR ABRIDGE THE RIGHT TO VOTE.  TO HOLD OTHERWISE
WOULD BE EITHER TO FORBID ALL SUCH ANNEXATIONS OR TO REQUIRE, AS THE
PRICE FOR APPROVAL OF THE ANNEXATION, THAT THE BLACK COMMUNITY BE
ASSIGNED THE SAME PROPORTION OF COUNCIL SEATS AS BEFORE, HENCE PERHAPS
PERMANENTLY OVERREPRESENTING THEM AND UNDERREPRESENTING OTHER ELEMENTS
IN THE COMMUNITY, INCLUDING THE NONBLACK CITIZENS IN THE ANNEXED AREA. 
WE ARE UNWILLING TO HOLD THAT CONGRESS INTENDED EITHER CONSEQUENCE IN
ENACTING SEC. 5. 

WE ARE ALSO CONVINCED THAT THE ANNEXATION NOW BEFORE US, IN THE
CONTEXT OF THE WARD SYSTEM OF ELECTION FINALLY PROPOSED BY THE CITY AND
THEN AGREED TO BY THE UNITED STATES, DOES NOT HAVE THE EFFECT
PROHIBITED BY SEC. 5.  THE FINDINGS ON WHICH THIS CASE WAS DECIDED AND
IS PRESENTED TO US WERE THAT THE POSTANNEXATION POPULATION OF THE CITY
WAS 42% NEGRO AS COMPARED WITH 52% PRIOR TO ANNEXATION.  THE NINE-WARD
SYSTEM FINALLY SUBMITTED BY THE CITY INCLUDED FOUR WARDS EACH OF WHICH
HAD A GREATER THAN A 64% BLACK MAJORITY.  FOUR WARDS WERE HEAVILY
WHITE.  THE NINTH HAD A BLACK POPULATION OF 40.9%.  IN OUR VIEW, SUCH A
PLAN DOES NOT UNDERVALUE THE BLACK STRENGTH IN THE COMMUNITY AFTER
ANNEXATION; AND WE HOLD THAT THE ANNEXATION IN THIS CONTEXT DOES NOT
HAVE THE EFFECT OF DENYING OR ABRIDGING THE RIGHT TO VOTE WITHIN THE
MEANING OF SEC. 5.  TO THE EXTENT THAT THE DISTRICT COURT RESTED ON A
DIFFERENT VIEW, ITS JUDGMENT CANNOT STAND. 

        III 

THE FOREGOING PRINCIPLES SHOULD GOVERN THE APPLICATION OF SEC. 5
INSOFAR AS IT FORBIDS CHANGES IN VOTING PROCEDURES HAVING THE EFFECT OF
DENYING OR ABRIDGING THE RIGHT TO VOTE ON THE GROUNDS OF RACE OR
COLOR.  BUT THE SECTION ALSO PROSCRIBES CHANGES THAT ARE MADE WITH THE
PURPOSE OF DENYING THE RIGHT TO VOTE ON SUCH GROUNDS.  THE DISTRICT
COURT CONCLUDED THAT WHEN THE ANNEXATION EVENTUALLY APPROVED IN 1969
TOOK PLACE, IT WAS ADOPTED BY THE CITY WITH A DISCRIMINATORY RACIAL
PURPOSE, THE PRECISE PURPOSE PROHIBITED BY SEC. 5, AND THAT TO PURGE
ITSELF OF THAT PURPOSE THE CITY WAS REQUIRED TO PROVE TWO FACTORS,
NEITHER OF WHICH HAD BEEN SUCCESSFULLY OR SATISFACTORILY SHOWN:  (1)
THAT THE CITY HAD SOME OBJECTIVELY VERIFIABLE, LEGITIMATE PURPOSE FOR
THE ANNEXATION AT THE TIME OF ADOPTING THE WARD SYSTEM OF ELECTING
COUNCILMEN IN 1973; AND (2) THAT "THE WARD PLAN NOT ONLY REDUCED, BUT
ALSO EFFECTIVELY ELIMINATED, THE DILUTION OF BLACK VOTING POWER CAUSED
BY THE ANNEXATION . . . ."  376 F.SUPP., AT 1353 (FOOTNOTE OMITTED). 
THE MASTER'S FINDINGS WERE ACCEPTED TO THE EFFECT THAT THERE WERE NO
CURRENT, LEGITIMATE ECONOMIC OR ADMINISTRATIVE REASONS WARRANTING THE
ANNEXATION.  AS FOR THE SECOND REQUIREMENT, THE WARD PLAN FAILED TO
AFFORD NEGROES THE POLITICAL POTENTIAL COMPARABLE TO THAT WHICH THEY
WOULD HAVE ENJOYED WITHOUT THE ANNEXATION, BECAUSE THEY WOULD SOON HAVE
HAD A MAJORITY OF THE VOTING POPULATION IN THE OLD CITY AND WOULD HAVE
CONTROLLED THE COUNCIL, AND BECAUSE, IN ANY EVENT, IT WAS DOUBTFUL THAT
THEIR POLITICAL POWER UNDER THE PROPOSED WARD SYSTEM IN THE ENLARGED
COMMUNITY WAS EQUIVALENT TO THEIR INLUENCE IN THE OLD CITY UNDER AN AT
LARGE ELECTION SYSTEM. 

THE REQUIREMENT THAT THE CITY ALLOCATE TO THE NEGRO COMMUNITY IN THE
LARGER CITY THE VOTING POWER OR THE SEATS ON THE CITY COUNCIL IN EXCESS
OF ITS PROPORTION IN THE NEW COMMUNITY AND THUS PERMANENTLY TO
UNDERREPRESENT OTHER ELEMENTS IN THE COMMUNITY IS FUNDAMENTALLY AT ODDS
WITH THE POSITION WE HAVE EXPRESSED EARLIER IN THIS OPINION, AND WE
CANNOT APPROVE TREATING THE FAILURE TO SATISFY IT AS EVIDENCE OF ANY
PURPOSE PROSCRIBED BY SEC. 5. 

ACCEPTING THE FINDINGS OF THE MASTER IN THE DISTRICT COURT THAT THE
ANNEXATION, AS IT WENT FORWARD IN 1969, WAS INFECTED BY THE
IMPERMISSIBLE PURPOSE OF DENYING THE RIGHT TO VOTE BASED ON RACE
THROUGH PERPETUATING WHITE MAJORITY POWER TO EXCLUDE NEGROES FROM
OFFICE THROUGH AT-LARGE ELECTIONS, /6/ WE ARE NEVERTHELESS PERSUADED
THAT IF VERIFIABLE REASONS ARE NOW DEMONSTRABLE IN SUPPORT OF THE
ANNEXATION, AND THE WARD PLAN PROPOSED IS FAIRLY DESIGNED, THE CITY
NEED DO NO MORE TO SATISFY THE REQUIREMENTS OF SEC. 5.  WE ARE ALSO
CONVINCED THAT IF THE ANNEXATION CANNOT BE SUSTAINED ON SOUND,
NONDISCRIMINATORY GROUNDS, IT WOULD BE ONLY IN THE MOST EXTRAORDINARY
CIRCUMSTANCES THAT THE ANNEXATION SHOULD BE PERMITTED ON CONDITION THAT
THE NEGRO COMMUNITY BE PERMANENTLY OVERREPRESENTED IN THE GOVERNING
COUNCILS OF THE ENLARGED CITY.  WE ARE VERY DOUBTFUL THAT THOSE
CIRCUMSTANCES EXIST IN THIS CASE; FOR, AS FAR AS THIS RECORD IS
CONCERNED, CHESTERFIELD COUNTY WAS AND STILL IS QUITE READY TO RECEIVE
BACK THE ANNEXED AREA, TO COMPENSATE THE CITY FOR ITS CAPITAL
IMPROVEMENTS, AND TO RESUME GOVERNANCE OF THE AREA.  IT WOULD ALSO SEEM
OBVIOUS THAT IF THERE ARE NO VERIFIABLE ECONOMIC OR ADMINISTRATIVE
BENEFITS FROM THE ANNEXATION THAT WOULD ACCRUE TO THE CITY, ITS
FINANCIAL OR OTHER PROSPECTS WOULD NOT BE WORSENED BY DEANNEXATION. 

WE NEED NOT DETERMINE THIS MATTER NOW, HOWEVER; FOR IT, AS WE HAVE
MADE CLEAR, THE CONTROLLING FACTOR IN THIS CASE IS WHETHER THERE ARE
NOW OBJECTIVELY VERIFIABLE, LEGITIMATE REASONS FOR THE ANNEXATION, WE
AGREE WITH THE UNITED STATES THAT FURTHER PROCEEDINGS ARE NECESSARY TO
BRING UP TO DATE AND REASSESS THE EVIDENCE BEARING ON THE ISSUE.  WE
ARE NOT SATISFIED THAT THE SPECIAL MASTER AND THE DISTRICT COURT GAVE
ADEQUATE CONSIDERATION TO THE EVIDENCE IN THIS CASE IN DECIDING WHETHER
THERE ARE NOW JUSTIFIABLE REASONS FOR THE ANNEXATION WHICH TOOK PLACE
ON JANUARY 1, 1970.  THE SPECIAL, THREE-JUDGE COURT OF THE STATE OF
VIRGINIA MADE THE ANNEXATION AWARD, GIVING GREAT WEIGHT TO THE
COMPROMISE AGREEMENT, BUT NEVERTHELESS FINDING THAT " RICHMOND IS
ENTITLED TO SOME ANNEXATION IN THIS CASE.  . . . OBVIOUSLY CITIES MUST
IN SOME MANNER BE PERMITTED TO GROW IN TERRITORY AND POPULATION OR THEY
WILL FACE DISASTROUS ECONOMIC AND SOCIAL PROBLEMS."  1 APP. 42.  THE
COURT WENT ON TO FIND THAT THE ANNEXATION MET ALL OF THE "REQUIREMENTS
OF NECESSITY AND, MOST IMPORTANT OF ALL, EXPEDIENCY," ID., AT 47,
EXPEDIENCY IN THE SENSE THAT IT IS "ADVANTAGEOUS' AND IN FURTHERANCE OF
THE POLICY OF THE STATE THAT 'URBAN AREAS SHOULD BE UNDER URBAN
GOVERNMENT AND RURAL AREAS UNDER COUNTY GOVERNMENT.'"  ID., AT 44. 

IN HOLT I, WHERE THE ANNEXATION WAS ATTACKED UNDER THE FIFTEENTH
AMENDMENT AS BEING A PURPOSEFUL PLAN TO DEPRIVE BLACK CITIZENS OF THEIR
CONSTITUTIONAL RIGHT TO VOTE WITHOUT DISCRIMINATION ON GROUNDS OF RACE,
THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, EN BANC, CONCLUDED THAT
THE PLAINTIFFS HAD NOT PROVED A PURPOSEFUL DESIGN TO ANNEX IN ORDER TO
DEPRIVE NEGRO CITIZENS OF THEIR POLITICAL RIGHTS.  THE MAJORITY
EXPRESSLY HELD THAT THERE WERE LEGITIMATE GROUNDS FOR ANNEXING PART OF
CHESTERFIELD COUNTY IN 1962 AND THAT THE PROOF WAS INADEQUATE TO SHOW
THAT THESE GROUNDS HAD BEEN REPLACED BY IMPERMISSIBLE RACIAL PURPOSES
IN 1969.  THE DISTRICT COURT HAD COME TO A CONTRARY CONCLUSION WITH
RESPECT TO THE 1969 ANNEXATION BUT, ACCORDING TO THE COURT OF APPEALS,
HAD ITSELF "FOUND THAT ANNEXATION RESTED UPON SUCH FIRM NON-RACIAL
GROUNDS THAT IT WAS NECESSARY, EXPEDIENT AND INEVITABLE."  /7/ THE TWO
DISSENTING JUDGES BOTH WERE OF THE VIEW THAT, ABSENT AN IMPERMISSIBLE
RACIAL PURPOSE, THE ANNEXATION WOULD HAVE BEEN LEGALLY ACCEPTABLE EVEN
THOUGH THE NEGRO PROPORTION IN THE COMMUNITY WAS THEREBY DIMINISHED. 
ONE OF THE DISSENTERS SAID:  " SINCE THERE IS NO REASON TO QUESTION
THAT SOME ANNEXATION, AT LEAST AS GREAT IN GEOGRAPHICAL SCOPE, WHOULD
HAVE BEEN DECREED HAD THE PROCEEDINGS RUN THEIR COURSE AND SINCE, FROM
MY READING OF THE RECORD, THERE COULD NOT HAVE BEEN AN ANNEXATION OF
TERRITORY WITHOUT AN ANNEXATION OF PEOPLE AND CONSEQUENT DILUTION OF
THE BLACK VOTE, I APPROVE OF THE DISTRICT JUDGE'S FASHIONING RELIEF
SOLELY BY ORDERING A NEW ELECTION OF COUNCIL MEMBERS UNDER CONDITIONS
WHERE THE BLACK VOTE COULD NOT BE DILUTED."  459 F.2D, AT 1111 (WINTER,
J., DISSENTING). 

IN THE PRESENT CASE THE DISTRICT COURT STATED THAT IT HAD NO DOUBT
THAT " RICHMOND'S LEADERSHIP WAS MOTIVATED IN 1962 BY NONDISCRIMINATORY
GOALS IN FILING ITS 1962 ANNEXATION SUIT," 376 F.SUPP., AT 1354 N. 52,
BUT WENT ON TO ACCEPT THE MASTER'S FINDINGS THAT THE ANNEXED AREA WAS A
FINANCIAL BURDEN TO THE CITY AND THAT THERE WERE NO ADMINISTRATIVE OR
OTHER ADVANTAGES JUSTIFYING THE ANNEXATION.  AS FOR THE CONTRARY
EVIDENCE IN THE RECORD, THE DISTRICT COURT ASSERTED THAT "(THESE
EVIDENTIARY REFERENCES TO HOLT WERE, OF COURSE, CONSIDERED BY THE
MASTER IN MAKING HIS FINDINGS," AND SUMMARILY CONCLUDED, WITHOUT
DISCUSSION, THAT THE CONTRARY EVIDENCE DID NOT "PERSUADE US THAT THE
MASTER'S FINDINGS ARE WRONG, NOR DO THEY DISSIPATE THE EVIDENCE OF
ILLEGAL PURPOSE WHICH PERMEATES THIS RECORD."  ID., AT 1354 (FOOTNOTE
OMITTED).  /8/ 

IN MAKING HIS FINDINGS, HOWEVER, IT APPEARS TO US THAT THE SPECIAL
MASTER MAY HAVE RELIED SOLELY ON THE TESTIMONY OF THE COUNTY
ADMINISTRATOR OF CHESTERFIELD COUNTY WHO HAD OPPOSED ANY ANNEXATION AND
WAS AN OBVIOUSLY INTERESTED WITNESS.  AT LEAST THERE IS NO INDICATION
FROM THE SPECIAL MASTER'S FINDINGS OR CONCLUSIONS THAT HE GAVE ANY
ATTENTION TO THE CONTRARY EVIDENCE IN THE RECORD.  THE CITY NOW CLAIMS
THAT THE ISSUES BEFORE THE SPECIAL MASTER DID NOT ENCOMPASS THE
POSSIBLE ECONOMIC AND ADMINISTRATIVE ADVANTAGES OF THE ANNEXATION
AGREED UPON IN 1969.  GIVEN OUR RESPONSIBILITIES UNDER SEC. 5, WE
SHOULD BE CONFIDENT OF THE EVIDENTIARY RECORD AND THE ADEQUACY OF THE
LOWER COURT'S CONSIDERATION OF IT.  IN THIS CASE, FOR THE VARIOUS
REASONS STATED ABOVE, WE HAVE SUFFICIENT DOUBT THAT THE RECORD IS
COMPLETE AND UP TO DATE WITH RESPECT TO WHETHER THERE ARE NOW
JUSTIFIABLE REASONS FOR THE CITY TO RETAIN THE ANNEXED AREA THAT WE
BELIEVE FURTHER PROCEEDINGS WITH RESPECT TO THIS QUESTION ARE
DESIRABLE.              IV 

WE HAVE HELD THAT AN ANNEXATION REDUCING THE RELATIVE POLITICAL
STRENGTH OF THE MINORITY RACE IN THE ENLARGED CITY AS COMPARED WITH
WHAT IT WAS BEFORE THE ANNEXATION IS NOT A STATUTORY VIOLATION AS LONG
AS THE POST-ANNEXATION ELECTORAL SYSTEM FAIRLY RECOGNIZES THE
MINORITY'S POLITICAL POTENTIAL.  IF THIS IS SO, IT MAY BE ASKED HOW IT
COULD BE FORBIDDEN BY SEC. 5 TO HAVE THE PURPOSE AND INTENT OF
ACHIEVING ONLY WHAT IS A PERFECTLY LEGAL RESULT UNDER THAT SECTION AND
WHY WE NEED REMAND FOR FURTHER PROCEEDINGS WITH RESPECT TO PURPOSE
ALONE.  THE ANSWER IS PLAIN, AND WE NEED NOT LABOR IT.  AN OFFICIAL
ACTION, WHETHER AN ANNEXATION OR OTHERWISE, TAKEN FOR THE PURPOSE OF
DISCRIMINATING AGAINST NEGROES ON ACCOUNT OF THEIR RACE HAS NO
LEGITIMACY AT ALL UNDER OUR CONSTITUTION OR UNDER THE STATUTE.  SECTION
5 FORBIDS VOTING CHANGES TAKEN WITH THE PURPOSE OF DENYING THE VOTE ON
THE GROUNDS OF RACE OR COLOR.  CONGRESS SURELY HAD THE POWER TO PREVENT
SUCH GROSS RACIAL SLURS, THE ONLY POINT OF WHICH IS "TO DESPOIL COLORED
CITIZENS, AND ONLY COLORED CITIZENS, OF THEIR THERETOFORE ENJOYED
VOTING RIGHTS."  GOMILLION V. LIGHTFOOT, 364 U.S. 339, 347 (1960). 
ANNEXATIONS ANIMATED BY SUCH A PURPOSE HAVE NO CREDENTIALS WHATSOEVER;
FOR "(ACTS GENERALLY LAWFUL MAY BECOME UNLAWFUL WHEN DONE TO ACCOMPLISH
AN UNLAWFUL END . . . ."  WESTERN UNION TELEGRAPH CO. V. FOSTER, 247
U.S. 105, 114 (1918); GOMILLION V. LIGHTFOOT, SUPRA, AT 347.  AN
ANNEXATION PROVED TO BE OF THIS KIND AND NOT PROVED TO HAVE A
JUSTIFIABLE BASIS IS FORBIDDEN BY SEC. 5, WHATEVER ITS ACTUAL EFFECT
MAY HAVE BEEN OR MAY BE. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

                            SO ORDERED. 

/1/ SECTION 5, 42 U.S.C. SEC. 1973C, PROVIDES: 

" WHENEVER A STATE OR POLITICAL SUBDIVISION WITH RESPECT TO WHICH
THE PROHIBITIONS SET FORTH IN SECTION 1973B (A) BASED UPON
DETERMINATIONS MADE UNDER THE FIRST SENTENCE OF SECTION 1973B (B) OF
THIS TITLE ARE IN EFFECT SHALL ENACT OR SEEK TO ADMINISTER ANY VOTING
QUALIFICATION OR PREREQUISITE TO VOTING, OR STANDARD, PRACTICE, OR
PROCEDURE WITH RESPECT TO VOTING DIFFERENT FROM THAT IN FORCE OR EFFECT
ON NOVEMBER 1, 1964, OR WHENEVER A STATE OR POLITICAL SUBDIVISION WITH
RESPECT TO WHICH THE PROHIBITIONS SET FORTH IN SECTION 1973B (A) OF
THIS TITLE BASED UPON DETERMINATIONS MADE UNDER THE SECOND SENTENCE OF
ADMINISTER ANY VOTING QUALIFICATION OR PREREQUISITE TO VOTING, OR
STANDARD, PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING DIFFERENT FROM
THAT IN FORCE OR EFFECT ON NOVEMBER 1, 1968, SUCH STATE OR SUBDIVISION
MAY INSTITUTE AN ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA FOR A DECLARATORY JUDGMENT THAT SUCH
QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE DOES NOT
HAVE THE PURPOSE AND WILL NOT HAVE THE EFFECT OF DENYING OR ABRIDGING
THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR, AND UNLESS AND UNTIL THE
COURT ENTERS SUCH JUDGMENT NO PERSON SHALL BE DENIED THE RIGHT TO VOTE
FOR FAILURE TO COMPLY WITH SUCH QUALIFICATION, PREREQUISITE, STANDARD,
PRACTICE, OR PROCEDURE:  PROVIDED, THAT SUCH QUALIFICATION,
PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE MAY BE ENFORCED WITHOUT
SUCH PROCEEDING IF THE QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE,
OR PROCEDURE HAS BEEN SUBMITTED BY THE CHIEF LEGAL OFFICER OR OTHER
APPROPRIATE OFFICIAL OF SUCH STATE OR SUBDIVISION TO THE ATTORNEY
GENERAL AND THE ATTORNEY GENERAL HAS NOT INTERPOSED AN OBJECTION WITHIN
SIXTY DAYS AFTER SUCH SUBMISSION, EXCEPT THAT NEITHER THE ATTORNEY
GENERAL'S FAILURE TO OBJECT NOR A DECLARATORY JUDGMENT ENTERED UNDER
THIS SECTION SHALL BAR A SUBSEQUENT ACTION TO ENJOIN ENFORCEMENT OF
SUCH QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE. 
ANY ACTION UNDER THIS SECTION SHALL BE HEARD AND DETERMINED BY A COURT
OF THREE JUDGES IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2284 OF
TITLE 28 AND ANY APPEAL SHALL LIE TO THE SUPREME COURT." 

/2/ VA. CODE ANN. SEC. 15.1 - 1032 ET SEQ. (1973 AND SUPP. 1975). 

/3/ A WRIT OF ERROR WAS REFUSED BY THE SUPREME COURT OF APPEALS OF
VIRGINIA.  DEERBOURNE CIVIC & RECREATION ASSN. V. CITY OF RICHMOND, 210
VA. LI-LII (1969), CERT. DENIED, 397 U.S. 1038 (1970). 

/4/ A MOTION TO STAY THE EFFECTIVE DATE OF THE ANNEXATION WAS DENIED
SEPARATELY BY INDIVIDUAL JUSTICES OF THIS COURT. 

/5/ THE PARTIES STIPULATED TO THE RECORD IN HOLT I, AND THE SPECIAL
MASTER REFERRED IN HIS DECISION TO THAT RECORD AND TO THE THREE DAYS OF
TESTIMONY WHICH HE HEARD.  SEE 376 F.SUPP.  1344, 1349 (DC 1974). 

/6/ THE CITY CONTENDS THAT THE DECISION OF THE COURT OF APPEALS IN
HOLT I SHOULD BE GIVEN ESTOPPEL EFFECT IN THIS CASE ON THE QUESTION OF
THE PURPOSE BEHIND THE ANNEXATION.  IN ITS VIEW, THE EARLIER DECISION
AS TO PURPOSE IS BINDING ON ALL THE PARTIES PARTICIPATING IN THE HOLT I
LITIGATION, AND ALTHOUGH THE UNITED STATES AND THE ATTORNEY GENERAL DID
NOT PARTICIPATE IN THAT LITIGATION, THE CITY ASSERTS THAT THEY ARE IN
AGREEMENT WITH THE CITY'S POSITION IN THIS CASE.  THE DISTRICT COURT
REJECTED THE CITY'S ARGUMENT BY POINTING TO THE FACT THAT THE BURDEN OF
PROOF WAS NOT ON THE CITY IN THE HOLT I PROCEEDINGS ALTHOUGH THAT
BURDEN IS ON RICHMOND IN THIS CASE, AND TO THE DIFFERENT LEGAL BASES OF
THE TWO CASES, WITH DIFFERENT AUTHORITIES APPLICABLE IN EACH.  376
F.SUPP., AT 1352 N. 43.  WHATEVER THE MERITS OF THE DISTRICT COURT'S
POSITION ON THIS COLLATERAL-ESTOPPEL ISSUE, WE FIND CONTROLLING THE
NONPARTICIPATION OF THE UNITED STATES AND THE ATTORNEY GENERAL IN THE
HOLT I CASE.  THE FEDERAL PARTIES EXPLICITLY REJECT THE ESTOPPEL
ARGUMENT OF THE CITY, BRIEF FOR THE FEDERAL PARTIES 16 - 17, N. 4, AND,
WHATEVER SUPPORT THE UNITED STATES PRESENTLY GIVES TO THE CITY'S
ANNEXATION, IT NOW RECOMMENDS THAT THE CASE BE REMANDED TO THE DISTRICT
COURT FOR THE TAKING OF FURTHER EVIDENCE AND THE MAKING OF FURTHER
FINDINGS ON THE QUESTION OF THE CITY'S PURPOSE: 

"WE BELIEVE THAT THE EVIDENCE IN THE RECORD WOULD SUPPORT A FINDING
THAT THE CITY HAS OBJECTIVELY VERIFIABLE, LEGITIMATE REASONS FOR
RETAINING THE ANNEXED AREA.  HOWEVER, THE PARTIES AT TRIAL DID NOT
DIRECTLY LITIGATE THAT QUESTION.  THE PARTIES, INCLUDING THE FEDERAL
PARTIES, CONCENTRATED ON THE EXTENT TO WHICH THE CITY'S WARD PLAN
MINIMIZED THE DILUTIVE EFFECTS OF THE ANNEXATION, I.E., ON THE
PERMISSIBILITY OF THE EFFECT OF THE VOTING CHANGE UNDER CITY OF
PETERSBURG, AND NOT ON THE NONDISCRIMINATORY PURPOSES THAT MIGHT
JUSTIFY RETENTION OF THE ANNEXED AREA.  THUS THE CITY DID NOT DEVELOP
AND PRESENT ALL ITS EVIDENCE RELATING TO SUCH PURPOSES, AND THE
INTERVENING DEFENDANTS HAVE NOT HAD A FULL OPPORTUNITY TO REBUT SUCH
EVIDENCE."  ID., AT 34 - 35. 

GIVEN THIS POSITION OF THE UNITED STATES, WE CONCLUDE THAT HOLT I
SHOULD NOT BE GIVEN ESTOPPEL EFFECT IN THIS CASE. 

/7/ THE COURT OF APPEALS SAID IN THIS RESPECT, 459 F.2D 1093, 1097
(1972): 

" IN 1961 THERE WERE COMPELLING REASONS FOR ANNEXATION OF PORTIONS OF
CHESTERFIELD COUNTY.  NEGROES WERE THEN A MINORITY IN RICHMOND AND NO
ONE WAS THEN THINKING IN TERMS OF A POSSIBLE CLEAVAGE BETWEEN BLACK AND
WHITE VOTERS.  RACE WAS NOT A FACTOR IN THE DECISION TO SEEK
ANNEXATION.  INDEED, THE FINDING WAS THAT, WITHOUT THE SETTLEMENT
AGREEMENT, THE ANNEXATION COURT WOULD HAVE AWARDED MORE TERRITORY, AND
A LARGER PREPONDERANCE OF WHITE VOTERS, TO RICHMOND. 

" THE DISTRICT COURT RECOGNIZED, HOWEVER, THAT THERE WAS NO RACIAL
MOTIVATION IN THE INSTITUTION OF THE ANNEXATION PROCEEDING OR IN ITS
PROSECUTION.  IF SOME MEMBERS OF RICHMOND'S GOVERNING BODY HAD
DEVELOPED A SENSE OF URGENCY BECAUSE OF THE GROWING NUMBER OF BLACK
VOTERS AND THEIR SUPPOSED OPPOSITION TO ANY ANNEXATION AND THE ELECTION
OF ' RICHMOND FORWARD' CANDIDATES, NO SUCH THOUGHTS WERE BELIEVED TO
HAVE INFECTED THE MINDS OF THE JUDGES OF THE ANNEXATION COURT.  IN
FACT, THE DISTRICT COURT FOUND THAT ANNEXATION RESTED UPON SUCH FIRM
NON-RACIAL GROUNDS THAT IT WAS NECESSARY, EXPEDIENT AND INEVITABLE." 

/8/ A STUDY BY THE URBAN INSTITUTE SHOWING A 1971 FISCAL YEAR
SURPLUS FROM THE ANNEXED AREA WAS NOT PART OF THE RECORD, THE DISTRICT
COURT SAID, AND "COULD NOT IN ANY CASE REMOVE THE DOUBTS CREATED BY
TESTIMONY AT THE HEARING."  376 F.SUPP., AT 1354 N. 51. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE DISTRICT COURT, APPLYING PROPER LEGAL STANDARDS, FOUND THAT THE
CITY OF RICHMOND HAD FAILED TO PROVE THAT ITS ANNEXATION OF PORTIONS OF
CHESTERFIELD COUNTY, VA., ON JANUARY 1, 1970, HAD NEITHER THE PURPOSE
NOR THE EFFECT OF ABRIDGING OR DILUTING THE VOTING RIGHTS OF RICHMOND'S
BLACK CITIZENS.  I BELIEVE THAT THAT FINDING, FAR FROM BEING CLEARLY
ERRONEOUS, WAS AMPLY SUPPORTED BY THE RECORD BELOW, AND THAT THE
DISTRICT COURT PROPERLY DENIED THE DECLARATORY JUDGMENT SOUGHT BY
RICHMOND.  I THEREFORE DISSENT. 

        I 

THE VOTING RIGHTS ACT OF 1965 /1/ GREW OUT OF A LONG AND SORRY
HISTORY OF RESISTANCE TO THE FIFTEENTH AMENDMENT'S RINGING PROSCRIPTION
OF RACIAL DISCRIMINATION IN VOTING.  THAT HISTORY, WHICH WE REVIEWED IN
THE COURSE OF UPHOLDING THE ACT'S CONSTITUTIONALITY IN SOUTH CAROLINA
V. KATZENBACH, 383 U.S. 301, 308 - 315 (1966), SHOWED A PERSISTENT AND
OFTEN INGENIOUS USE OF TESTS AND DEVICES TO DISENFRANCHISE BLACK
CITIZENS.  /2/ CONGRESS, IN RESPONSE, BANNED OR RESTRICTED THE USE OF
MANY OF THE MORE FAMILIAR DISCRIMINATORY DEVICES; /3/ BUT IN ADDITION,
RECOGNIZING "THAT SOME OF THE STATES COVERED BY SEC. 4(B) OF THE ACT
HAD RESORTED TO THE EXTRAORDINARY STRATAGEM OF CONTRIVING NEW RULES OF
VARIOUS KINDS FOR THE SOLE PURPOSE OF PERPETUATING VOTING
DISCRIMINATION . . . (AND) THAT THESE STATES MIGHT TRY SIMILAR
MANEUVERS IN THE FUTURE IN ORDER TO EVADE THE REMEDIES FOR VOTING
DISCRIMINATION CONTAINED IN THE ACT ITSELF," /4/ CONGRESS ENACTED THE
BROAD PROPHYLACTIC RULE OF SEC. 5 OF THE ACT, PROHIBITING COVERED
STATES FROM IMPLEMENTING ANY NEW "VOTING QUALIFICATION OR PREREQUISITE
TO VOTING, OR STANDARD, PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING"
WITHOUT FIRST SECURING THE APPROVAL OF EITHER THE ATTORNEY GENERAL OR
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  IN AN
EFFORT TO AVOID THE DELAYS AND UNCERTAINTIES FOSTERED BY PRIOR
STATUTES, UNDER WHICH AFFECTED PARTIES OR THE ATTORNEY GENERAL HAD BEEN
FORCED TO ASSUME THE INITIATIVE IN CHALLENGING DISCRIMINATORY VOTING
PRACTICES, CONGRESS PLACED THE BURDEN OF PROOF IN A SEC. 5 PROCEEDING
SQUARELY UPON THE ACTING STATE OR MUNICIPALITY TO SHOW THAT ITS
PROPOSED CHANGE IS FREE OF A RACIALLY DISCRIMINATORY PURPOSE OR
EFFECT.  /5/ THIS BURDEN IS INTENDED TO BE A SUBSTANTIAL ONE FOR A
STATE OR LOCATLITY WITH A HISTORY OF PAST RACIAL DISCRIMINATION.  /6/ 

IN SHORT, CONGRESS, THROUGH THE VOTING RIGHTS ACT OF 1965, IMPOSED A
STRINGENT AND COMPREHENSIVE SET OF CONTROLS UPON STATES FALLING WITHIN
THE ACT'S COVERAGE.  WE HAVE HERETOFORE HELD THAT THE LANGUAGE OF SEC.
5 WAS DESIGNED "TO GIVE THE ACT THE BROADEST POSSIBLE SCOPE,"  AND TO
REQUIRE "THAT ALL CHANGES, NO MATTER HOW SMALL, BE SUBJECTED TO SEC. 5
SCRUTINY," ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544, 567 - 568
(1969); WE HAVE THUS APPLIED SEC. 5 TO LEGISLATIVE REAPPORTIONMENTS,
ANNEXATIONS, AND ANY OTHER STATE ACTIONS WHICH MAY POTENTIALLY ABRIDGE
OR DILUTE VOTING RIGHTS.  ID., AT 569 - 571; GEORGIA V. UNITED STATES,
411 U.S. 526 (1973); PERKINS V. MATTHEWS, 400 U.S. 379 (1971). 

THE FRONTLINE JUDICIAL RESPONSIBILITY FOR INTERPRETING AND APPLYING
THE SUBSTANTIVE STANDARDS SEC. 5 RESTS EXCLUSIVELY WITH THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, /7/ AND THE
CONSIDERABLE EXPERIENCE WHICH THAT COURT HAS ACQUIRED IN DEALING WITH
SEC. 5 CASES ENHANCES THE RESPECT TO WHICH ITS JUDGMENTS ARE ENTITLED
ON APPELLATE REVIEW BY VIRTUE OF THAT UNIQUE POSITION.  THE DISTRICT
COURT HERE RECOGNIZED THAT IT BEARS A "HEAVY RESPONSIBILITY" UNDER SEC.
5, AND THAT THAT "RESPONSIBILITY IS NO LESS THAN TO ENSURE REALIZATION
OF THE FIFTEENTH AMENDMENT'S PROMISE OF EQUAL PARTICIPATION IN OUR
ELECTORAL PROCESS."  376 F.SUPP.  1344, 1346 - 1347 (1974).  IN
EXERCISING OUR POWER OF APPELLATE REVIEW OVER THAT COURT'S SUBSTANTIVE
SEC. 5 DETERMINATIONS, WE MUST BE EQUALLY DEVOTED TO THAT SAME MAJESTIC
PROMISE. 

        II 

IN MY VIEW, THE FLAGRANTLY DISCRIMINATORY PURPOSE WITH WHICH
RICHMOND HASTILY SETTLED ITS CHESTERFIELD COUNTY ANNEXATION SUIT IN
1969 COMPELLED THE DISTRICT COURT TO DENY RICHMOND THE DECLARATORY
JUDGMENT.  THE RECORD IS REPLETE WITH STATEMENTS BY RICHMOND OFFICIALS
WHICH PROVE BEYOND QUESTION THAT THE PREDOMINANT (IF NOT THE SOLE)
MOTIVE AND DESIRE OF THE NEGOTIATORS OF THE 1969 SETTLEMENT WAS TO
ACQUIRE 44,000 ADDITIONAL WHITE CITIZENS FOR RICHMOND, IN ORDER TO
AVERT A TRANSFER OF POLITICAL CONTROL TO WHAT WAS FAST BECOMING A BLACK
POPULATION MAJORITY.  /8/ THE DISTRICT COURT'S FINDINGS ON THIS POINT
WERE QUITE EXPLICIT: 

     " RICHMOND'S FOCUS IN THE NEGOTIATIONS WAS UPON THE NUMBER OF

  NEW WHITE VOTERS IT COULD OBTAIN BY ANNEXATION; IT EXPRESSED NO

  INTEREST IN ECONOMIC OR GEOGRAPHIC CONSIDERATIONS SUCH AS TAX

  REVENUES, VACANT LAND, UTILITIES, OR SCHOOLS.  THE MAYOR REQUIRED

  ASSURANCES FROM CHESTERFIELD COUNTY OFFICIALS THAT AT LEAST

  44,000 ADDITIONAL WHITE CITIZENS WOULD BE OBTAINED BY THE CITY

  BEFORE HE WOULD AGREE UPON SETTLEMENT OF THE ANNEXATION SUIT. 

  AND THE MAYOR AND ONE OF THE CITY COUNCILMEN CONDITIONED FINAL

  ACCEPTANCE OF THE SETTLEMENT AGREEMENT ON THE ANNEXATION GOING

  INTO EFFECT IN SUFFICIENT TIME TO MAKE CITIZENS IN THE ANNEXED

  AREA ELIGIBLE TO VOTE IN THE CITY COUNCIL ELECTIONS OF 1970." 
/9/

AGAINST THIS BACKGROUND, THE SETTLEMENT REPRESENTED A CLEAR VICTORY FOR
RICHMOND'S ENTRENCHED WHITE POLITICAL ESTABLISHMENT:  THE CITY REALIZED
A NET GAIN OF 44,000 WHITE CITIZENS, ITS BLACK POPULATION WAS REDUCED
FROM 52% TO 42% OF THE TOTAL POPULATION, AND THE PREDOMINANTLY WHITE
RICHMOND FORWARD ORGANIZATION RETAINED ITS 6 - 3 MAJORITY ON THE CITY
COUNCIL.     HAVING SUCCEEDED IN THIS PATENTLY DISCRIMINATORY
ENTERPRISE, RICHMOND NOW ARGUES THAT IT CAN PURGE THE TAINT OF ITS
IMPERMISSIBLE PURPOSE BY DREDGING UP SUPPOSED OBJECTIVE JUSTIFICATIONS
FOR THE ANNEXATION AND BY REPLACING ITS PRACTICE OF AT-LARGE
COUNCILMANIC ELECTIONS WITH A WARD-VOTING SYSTEM.  THE IMPLICATIONS OF
THE PROPOSED WARD-VOTING SYSTEM ARE DISCUSSED IN PART III, INFRA;
MEANWHILE, I HAVE GRAVE DIFFICULTY WITH THE IDEA THAT THE TAINT OF AN
ILLEGAL PURPOSE CAN, UNDER SEC. 5, BE DISPELLED BY THE SORT OF POST HOC
RATIONALIZATION WHICH THE CITY NOW OFFERS.     THE COURT BELOW NOTED
THAT RICHMOND, IN INITIATING ANNEXATION PROCEEDINGS IN 1962, WAS
MOTIVATED "BY LEGITIMATE GOALS OF URBAN EXPANSION."  376 F.SUPP., AT
1351.  BY 1969, HOWEVER, THOSE LEGITIMATE GOALS HAD BEEN PUSHED INTO
THE BACKGROUND BY THE UNSEEMLY HASTE OF THE WHITE POLITICAL
ESTABLISHMENT TO PROTECT AND SOLIDIFY ITS POSITION OF POWER.  THE
DISTRICT COURT'S FINDINGS QUOTED ABOVE FULLY ESTABLISH THAT THE 1969
SETTLEMENT OF RICHMOND'S ANNEXATION SUIT WAS NEGOTIATED IN AN
ATMOSPHERE TOTALLY DEVOID OF ANY CONCERN FOR ECONOMIC OR ADMINISTRATIVE
ISSUES; THE CITY'S OWN BOUNDARY EXPANSION COORDINATOR WAS NOT EVEN
CONSULTED ABOUT THE FINANCIAL OR GEOGRAPHICAL IMPLICATIONS OF THE SO
CALLED HORNER-BAGLEY LINE UNTIL SEVERAL WEEKS AFTER THE LINE HAD BEEN
DRAWN.  /10/ THE CONTOURS OF THIS PARTICULAR ANNEXATION WERE SHAPED
SOLELY BY RACIAL AND POLITICAL CONSIDERATIONS, AND THE INFERENCE IS NOT
MERELY REASONABLE BUT INDEED COMPELLED THAT THE ANNEXATION LINE WOULD
HAVE BEEN SIGNIFICANTLY DIFFERENT HAD THE RACIAL MOTIVATION NOT BEEN
PRESENT.  /11/ 

TO HOLD THAT AN ANNEXATION AGREEMENT RACHED UNDER SUCH CIRCUMSTANCES
CAN BE VALIDATED BY OBJECTIVE ECONOMIC JUSTIFICATIONS OFFERED MANY
YEARS AFTER THE FACT, IN MY VIEW, WHOLLY NEGATES THE PROPHYLACTIC
PURPOSE OF SEC. 5.  /12/ THE COURT NEVERTHELESS, AT THE SUGGESTION OF
THE UNITED STATES, REMANDS FOR THE TAKING OF FURTHER EVIDENCE ON THE
PRESENCE OF ANY "OBJECTIVELY VERIFIABLE, LEGITIMATE REASONS FOR THE
ANNEXATION."  EVEN ASSUMING, AS THE DISTRICT COURT DID, THAT SUCH
REASONS COULD NOW VALIDATE AN ORIGINALLY ILLEGAL ANNEXATION, I CANNOT
AGREE THAT A REMAND IS NECESSARY. 

THE DISTRICT COURT, ADOPTING THE FINDINGS OF THE MASTER WHOM IT HAD
APPOINTED UNDER FED. RULE CIV. PROC. 53, SQUARELY HELD THAT RICHMOND
"HAS FAILED TO ESTABLISH ANY COUNTERBALANCING ECONOMIC OR
ADMINISTRATIVE BENEFITS OF THE ANNEXATION.'"  376 F.SUPP., AT 1353. 
THE RECORD BEFORE THE MASTER, INCLUDING THE ENTIRE RECORD IN HOLT V.
CITY OF RICHMOND, 334 F.SUPP.  228 (ED VA. 1971), REV'D, 459 F.2D 1093
(CA4), CERT. DENIED, 408 U.S. 931 (1972), TO WHICH THE PARTIES
STIPULATED, /13/ CONTAINED AMPLE EVIDENCE ON THE ECONOMIC AND
ADMINISTRATIVE CONSEQUENCES OF THE ANNEXATION.  THE MASTER AND THE
DISTRICT COURT WEIGHED THIS OFTEN CONFLICTING EVIDENCE AND FOUND THAT
RICHMOND HAD FAILED TO CARRY ITS BURDEN OF PROOF BY SHOWING ANY
LEGITIMATE PURPOSE FOR THE ANNEXATION AS CONSUMMATED IN 1969.  /14/ 

FEDERAL RULE CIV. PROC. 52 (A) COMPELS US TO ACCEPT THAT FINDING
UNLESS IT CAN BE CALLED CLEARLY ERRONEOUS.  I FIND IT IMPOSSIBLE, ON
THIS RECORD, TO ATTACH THAT LABEL TO THE FINDINGS BELOW, AND INDEED,
THE COURT NEVER GOES SO FAR AS TO DO SO.  NEVERTHELESS, IN APPARENT
DISAGREEMENT WITH THE MANNER IN WHICH CONFLICTING EVIDENCE WAS WEIGHED
AND RESOLVED BY THE LOWER COURT, THE COURT REMANDS FOR FURTHER
EVIDENTIARY PROCEEDINGS, PERHAPS IN HOPES THAT A RE-EVALUATION OF THE
EVIDENCE WILL PRODUCE A MORE ACCEPTABLE RESULT.  THIS COURSE OF ACTION
IS TO ME WHOLLY INCONSISTENT WITH THE PROPER ROLE OF AN APPELLATE COURT
OPERATING UNDER THE STRICTURES OF RULE 52 (A). 

        III 

THE SECOND PRONG OF ANY SEC. 5 INQUIRY IS WHETHER THE VOTING CHANGE
UNDER CONSIDERATION WILL HAVE THE EFFECT OF DENYING OR ABRIDGING THE
RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR.  IN PERKINS V. MATTHEWS,
SUPRA, HOLDING THAT SEC. 5 APPLIES TO ANNEXATIONS, WE SAID: 

" CLEARLY, REVISION OF BOUNDARY LINES HAS AN EFFECT ON VOTING IN TWO
WAYS:  (1) BY INCLUDING CERTAIN VOTERS WITHIN THE CITY AND LEAVING
OTHERS OUTSIDE, IT DETERMINES WHO MAY VOTE IN THE MUNICIPAL ELECTION
AND WHO MAY NOT; (2) IT DILUTES THE WEIGHT OF THE VOTES OF THE VOTERS
TO WHOM THE FRANCHISE WAS LIMITED BEFORE THE ANNEXATION, AND 'THE RIGHT
OF SUFFRAGE CAN BE DENIED BY A DEBASEMENT OR DILUTION OF THE WEIGHT OF
A CITIZEN'S VOTE JUST AS EFFECTIVELY AS BY WHOLLY PROHIBITING THE FREE
EXERCISE OF THE FRANCHISE.'  REYNOLDS V. SIMS, 377 U.S. 533, 555
(1964).  MOREOVER, SEC. 5 WAS DESIGNED TO COVER CHANGES HAVING A
POTENTIAL FOR RACIAL DISCRIMINATION IN VOTING, AND SUCH POTENTIAL
INHERES IN A CHANGE IN THE COMPOSITION OF THE ELECTORATE AFFECTED BY AN
ANNEXATION."  400 U.S., AT 388 - 389.  THE GUIDELINES OF THIS
DISCUSSION IN PERKINS WERE CORRECTLY APPLIED BY THE DISTRICT COURT,
WHICH CONTINUED AS FOLLOWS: 

" PERKINS LEFT IMPLICIT THE OBVIOUS:  IF THE PROPORTION OF BLACKS IN
THE NEW CITIZENRY FROM THE ANNEXED AREA IS APPRECIABLY LESS THAN THE
PROPORTION OF BLACKS LIVING WITHIN THE CITY'S OLD BOUNDARIES, AND
PARTICULARLY IF THERE IS A HISTORY OF RACIAL BLOC VOTING IN THE CITY,
THE VOTING POWER OF BLACK CITIZENS AS A CLASS IS DILUTED AND THUS
ABRIDGED."  376 F.SUPP., AT 1348 (FOOTNOTE OMITTED). 

MEASURED AGAINST THESE STANDARDS, THE DILUTIVE EFFECT OF RICHMOND'S
ANNEXATION IS CLEAR, BOTH AS A MATTER OF SEMANTICS AND AS A MATTER OF
POLITICAL REALITIES.  BLACKS CONSTITUTED 52% OF THE PREANNEXATION
POPULATION AND 44.8% OF THE PREANNEXATION VOTING-AGE POPULATION IN
RICHMOND, BUT NOW CONSTITUTE ONLY 42% OF THE POSTANNEXATION POPULATION
AND ONLY 37.3% OF THE POSTANNEXATION VOTING-AGE POPULATION.  I CANNOT
AGREE THAT SUCH A SIGNIFICANT DILUTION OF BLACK VOTING STRENGTH CAN BE
REMEDIED, FOR SEC. 5 PURPOSES, SIMPLY BY ALLOCATING TO BLACKS A
REASONABLY PROPORTIONATE SHARE OF VOTING POWER WITHIN THE
POSTANNEXATION COMMUNITY. 

THE HISTORY OF THE VOTING RIGHTS ACT, AS SET FORTH IN PART I, SUPRA,
DISCLOSES THE INTENT OF CONGRESS TO IMPOSE A STRINGENT SYSTEM OF
CONTROLS UPON CHANGES IN STATE VOTING PRACTICES IN ORDER TO THWART EVEN
THE MOST SUBTLE ATTEMPTS TO DILUTE BLACK VOTING RIGHTS.  WE HAVE
ELSEWHERE DESCRIBED THE ACT AS "AN UNUSUAL, AND IN SOME ASPECTS A
SEVERE, PROCEDURE FOR INSURING THAT STATES WOULD NOT DISCRIMINATE ON
THE BASIS OF RACE IN THE ENFORCEMENT OF THEIR VOTING LAWS."  /15/
CONGRESS WAS CERTAINLY AWARE OF THE HARDSHIPS AND INCONVENIENCE WHICH
SEC. 5 AND OTHER PORTIONS OF THE ACT COULD IMPOSE UPON COVERED STATES
AND LOCALITIES; BUT IN PASSING THE ACT IN ITS FINAL FORM, CONGRESS
UNMISTAKABLY DECLARED THAT THOSE HARDSHIPS ARE OUTWEIGHED BY THE NEED
TO ENSURE EFFECTIVE PROTECTION FOR BLACK VOTING RIGHTS. 

TODAY'S DECISION SERIOUSLY WEAKENS THE PROTECTION SO EMPHATICALLY
ACCORDED BY THE ACT.  MUNICIPAL POLITICIANS WHO ARE FEARFUL OF LOSING
THEIR POLITICAL CONTROL TO EMERGING BLACK VOTING MAJORITIES ARE TODAY
PLACED ON NOTICE THAT THEIR CONTROL CAN BE MADE SECURE AS LONG AS THEY
CAN FIND CONCENTRATIONS OF WHITE CITIZENS INTO WHICH TO EXPAND THEIR
MUNICIPAL BOUNDARIES.  RICHMOND'S BLACK POPULATION, HAVING FINALLY
BEGUN TO APPROACH AN OPPORTUNITY TO ELECT RESPONSIVE OFFICIALS AND TO
HAVE A SIGNIFICANT VOICE IN THE CONDUCT OF ITS MUNICIPAL AFFAIRS, NOW
FINDS ITS VOTING STRENGTH REDUCED BY A PLAN WHICH "GUARANTEES" FOUR
SEATS ON THE CITY COUNCIL BUT WHICH MAKES THE ELUSIVE FIFTH SEAT MORE
REMOTE THAN IT WAS BEFORE.  THE COURT WOULD OFFER, AS CONSOLATION, THE
FACT THAT BLACKS WILL ENJOY A FAIR SHARE OF THE VOTING POWER AVAILABLE
UNDER A WARD SYSTEM OPERATING WITHIN THE BOUNDARIES OF THE
POSTANNEXATION COMMUNITY; BUT THAT SAME RATIONALE WOULD SUPPORT A PLAN
WHICH ADDED FAR GREATER CONCENTRATIONS OF WHITES TO THE CITY AND
REDUCED BLACK VOTING STRENGTH TO THE EQUIVALENT OF THREE SEATS, TWO
SEATS, OR EVEN FRACTIONS OF A SEAT.  THE RELIANCE UPON POSTANNEXATION
FAIRNESS OF REPRESENTATION IS INCONSISTENT WITH WHAT I TAKE TO BE THE
FUNDAMENTAL OBJECTIVE OF SEC. 5, NAMELY, THE PROTECTION OF PRESENT
LEVELS OF VOTING EFFECTIVENESS FOR THE BLACK POPULATION. 

IT MAY BE TRUE, AS THE COURT SUGGESTS, THAT THIS INTERPRETATION
WOULD EFFECTIVELY PRECLUDE SOME CITIES FROM UNDERTAKING DESPERATELY
NEEDED PROGRAMS OF EXPANSION AND ANNEXATION.  CERTAINLY THERE IS
NOTHING IN SEC. 5 WHICH SUGGESTS THAT BLACK VOTERS COULD OR SHOULD BE
GIVEN A DISPROPORTIONATELY HIGH SHARE OF THE VOTING POWER IN A
POSTANNEXATION COMMUNITY; WHERE THE RACIAL COMPOSITION OF AN ANNEXED
AREA IS SUBSTANTIALLY DIFFERENT FROM THAT OF THE ANNEXING AREA, IT MAY
WELL BE IMPOSSIBLE TO PROTECT PREANNEXATION BLACK VOTING STRENGTH
WITHOUT INVIDIOUSLY DILUTING THE VOTING STRENGTH OF OTHER RACIAL GROUPS
IN THE COMMUNITY.  I SEE NO REASON TO ASSUME THAT THE "DEMOGRAPHICS" OF
THE SITUATION ARE SUCH THAT THIS WOULD BE AN INSUPERABLE PROBLEM FOR
ALL OR EVEN MOST CITIES COVERED BY THE ACT; BUT IN ANY EVENT, IF THERE
IS TO BE A "MUNICIPAL HARDSHIP" EXCEPTION FOR ANNEXATIONS VIS-A-VIS
SEC. 5, THAT EXCEPTION SHOULD ORIGINATE WITH CONGRESS AND NOT WITH THE
COURTS. 

AT THE VERY LEAST, THEREFORE, I WOULD ADOPT THE PETERSBURG STANDARD
RELIED UPON BY THE DISTRICT COURT, NAMELY, THAT THE DILUTIVE EFFECT OF
AN ANNEXATION OF THIS SORT CAN BE CURED ONLY BY A WARD PLAN
"'CALCULATED TO NEUTRALIZE TO THE EXTENT POSSIBLE ANY ADVERSE EFFECT
UPON THE POLITICAL PARTICIPATION OF BLACK VOTERS.'"  376 F.SUPP., AT
1352.  /16/ THE CRUSADE FOR VOTERS OF RICHMOND, INTERVENOR IN THE COURT
BELOW, SUBMITTED SEVERAL PLANS PROVIDING FOR A GREATER BLACK
REPRESENTATION IN THE SO-CALLED "SWING DISTRICT" THAN THAT AFFORDED BY
RICHMOND'S OWN PLAN; THE DISTRICT COURT, IN LIGHT OF THESE ALTERNATIVE
SUBMISSIONS AND IN LIGHT OF THE FACT THAT RICHMOND'S WARD PLAN HAD BEEN
DRAWN UP WITHOUT ANY REFERENCE TO RACIAL LIVING PATTERNS, CONCLUDED
THAT RICHMOND'S PLAN DID NOT, "TO THE EXTENT POSSIBLE," MINIMIZE
DILUTION OF BLACK VOTING POWER.  ID., AT 1356 - 1357.  ON THAT BASIS, I
WOULD AFFIRM THE FINDING THAT RICHMOND FAILED TO ESTABLISH THE ABSENCE
OF A DISCRIMINATORY EFFECT PROHIBITED BY SEC. 5. 

        IV 

MORE THAN FIVE YEARS HAVE ELAPSED SINCE THE LAST MUNICIPAL ELECTIONS
WERE HELD IN RICHMOND.  /17/ HOPES WHICH WERE LIFTED BY THE DISTRICT
COURT DECISION OVER A YEAR AGO ARE TODAY AGAIN DASHED, AS THE CASE IS
REMANDED FOR WHAT MAY PROVE TO BE SEVERAL ADDITIONAL YEARS OF
LITIGATION; RICHMOND WILL CONTINUE TO BE GOVERNED, AS IT HAS BEEN FOR
THE LAST FIVE YEARS, BY A SLATE OF COUNCILMEN ELECTED IN CLEAR
VIOLATION OF SEC. 5.  /18/ THE BLACK POPULATION OF RICHMOND MAY BE
JUSTIFIABLY SUSPICIOUS OF THE "PROTECTION" ITS VOTING RIGHTS ARE
RECEIVING WHEN THESE RIGHTS CAN BE SUSPENDED IN LIMBO, AND THE PEOPLE
DEPRIVED OF THE RIGHT TO SELECT THEIR LOCAL OFFICIALS IN AN ELECTION
MEETING CONSTITUTIONAL AND STATUTORY STANDARDS, FOR SO MANY YEARS.  I
WOULD AFFIRM THE JUDGMENT BELOW, AND LET THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF VIRGINIA SET ABOUT THE BUSINESS OF
FASHIONING AN APPROPRIATE REMEDY AS EXPEDITIOUSLY AS POSSIBLE. 

/1/ 79 STAT. 437, AS AMENDED, 84 STAT. 314, 42 U.S.C. SEC. 1973 ET
SEQ. 

/2/ SEE ALSO BEER V. UNITED STATES, 374 F.SUPP.  363, 377 - 378 (DC
1974); H.R.REP.  NO. 439, 89TH CONG., 1ST SESS., 8 - 13 (1965); S.REP. 
NO. 162, PT. 3, 89TH CONG., 1ST SESS., 3 - 12 (1965). 

/3/ THESE DEVICES INCLUDED LITERACY TESTS, REQUIREMENTS OF "GOOD
MORAL CHARACTER," AND VOUCHER REQUIREMENTS, SEC. 4 (A)-(D), 42 U.S.C.
SEC. 1973B (A)-(D), AS WELL AS POLL TAXES, SEC. 10, 42 U.S.C. SEC.
1973H. 

/4/ SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301, 335 (1966). 

/5/ GEORGIA V. UNITED STATES, 411 U.S. 526, 538 (1973). 

/6/ CITY OF PETERSBURG V. UNITED STATES, 354 F.SUPP.  1021, 1027 (DC
1972), AFF'D, 410 U.S. 962 (1973). 

/7/ WE HAVE CONSISTENTLY HELD THAT THE SUBSTANTIVE ISSUE OF
DISCRIMINATORY PURPOSE OR EFFECT UNDER SEC. 5 CAN BE LITIGATED ONLY IN
THE DISTRICT COURT FOR THE DISTRICT OF COLUNBIA; THE SOLE QUESTION OPEN
FOR CONSIDERATION IN ANY OTHER DISTRICT COURT IS WHETHER A STATE VOTING
PRACTICE OR REQUIREMENT IS OF THE SORT REQUIRED BY SEC. 5 TO BE
SUBMITTED FOR PRIOR APPROVAL.  PERKINS V. MATTHEWS, 400 U.S. 379, 383 -
386 (1971); ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544, 555 - 559
(1969); CONNOR V. WALLER, 421 U.S. 656 (1975). 

/8/ 376 F.SUPP.  1344, 1349 - 1350 (DC 1974).  THE STATEMENTS
QUOTED, ID., AT 1349 N. 29, PARTICULARLY THOSE OF THEN-MAYOR BAGLEY,
CAN HARDLY BE DESCRIBED AS SUBTLE OR INDIRECT. 

/9/ ID., AT 1350 (FOOTNOTES OMITTED). 

/10/ 2 APP. 352 - 3524. 

/11/ SEVERAL JUDGES INVOLVED IN A PRIOR PHASE OF THIS DISPUTE HAVE
EXPRESSED A BELIEF, FOUNDED UPON THE RECORD, THAT RICHMOND WOULD HAVE
SECURED FAR MORE FAVORABLE ANNEXATION TERMS HAD IT NOT BEEN PRODDED
INTO A HASTY SETTLEMENT BY THE PENDENCY OF THE 1970 ELECTIONS.  SEE
HOLT V. CITY OF RICHMOND, 459 F.2D 1093, 1108 (CA4) (WINTER, J.,
DISSENTING), CERT. DENIED, 408 U.S. 931 (1972); HOLT V. CITY OF
RICHMOND, 334 F.SUPP.  228, 236 (ED VA. 1971), REV'D ON OTHER GROUNDS,
459 F.2D 1093, SUPRA. 

/12/ HAD THIS AGREEMENT BEEN PROPERLY SUBMITTED FOR SEC. 5 CLEARANCE
IN 1969, I CANNOT BELIEVE THAT THE ANNEXATION WOULD EVER HAVE BEEN
PERMITTED TO TAKE PLACE.  BUT OUR HOLDING IN PERKINS V. MATTHEWS,
SUPRA, THAT ANNEXATIONS FALL WITHIN THE SCOPE OF SEC. 5, CAME MORE THAN
A YEAR AFTER THE RICHMOND ANNEXATION TOOK EFFECT; BY THIS QUIRK OF
TIMING, THE ANNEXATION ESCAPED PREIMPLEMENTATION SCRUTINY ENTIRELY. 
THE 1969 LINE THUS REMAINS IN PLACE, A GRIM REMINDER IN ITS CONTOURS
AND IN ITS VERY EXISTENCE OF THE DISCRIMINATORY PURPOSE WHICH GAVE IT
BIRTH. 

/13/ 376 F.SUPP., AT 1349.     /14/ MUCH OF THE EVIDENCE IN THE
RECORD BELOW APPEARS TO HAVE DEALT WITH RICHMOND'S NEED FOR EXPANSION
AND ANNEXATION IN THE ABSTRACT.  ANNEXATION IN THE ABSTRACT, HOWEVER,
IS NOT AT ISSUE HERE; THE CRITICAL QUESTION IS WHETHER THE PARTICULAR
LINE DRAWN IN 1969 HAD ANY CONTEMPORARY JUSTIFICATION IN TERMS OF
OBJECTIVE FACTORS SUCH AS RICHMOND'S NEED FOR VANCANT LAND, AN EXPANDED
TAX BASE, AND THE LIKE. 

/15/ ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S., AT 556 (FOOTNOTE
OMITTED). 

/16/ THE ORIGINAL VERSION OF THIS STANDARD APPEARS IN CITY OF
PETERSBURG V. UNITED STATES, 354 F.SUPP., AT 1031.     /17/ THE LAST
COUNCILMANIC ELECTION WAS HELD ON JUNE 10, 1970.  1 APP. 71; 376
F.SUPP., AT 1351. 

/18/ THE 1970 ELECTIONS WERE CONDUCTED ON AN AT-LARGE BASIS IN THE
POSTANNEXATION COMMUNITY, A PROCEDURE INCONSISTENT WITH EVEN THE
NARROWED PETERSBURG "EFFECT" TEST ADOPTED BY THE COURT TODAY. 
MOREOVER, SINCE THE ELECTIONS OCCURRED PRIOR TO OUR DECISION IN
PERKINS, SUPRA, THERE WAS NO ATTEMPT TO SUBMIT THE ANNEXATION FOR PRIOR
APPROVAL.  SECTION 5 IS VIOLATED IN BOTH RESPECTS. 

CHARLES S. RHYNE ARGUED THE CAUSE FOR APPELANT.  WITH HIM ON THE
BRIEFS WERE DAVID M. DIXON, DANIEL T. BALFOUR, CONRAD B. MATTOX, JR.,
HORACE H. EDWARDS, AND JOHN S. DAVENPORT III. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES ET AL. IN SUPPORT OF THE APPELLANT.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL POTTINGER, KEITH A.
JONES, AND BRIAN K. LANDSBERG. 

ARMAND DERFNER ARGUED THE CAUSE FOR APPELLEES CRUSADE FOR VOTERS OF
RICHMOND ET AL. WITH HIM ON THE BRIEF WERE JAMES P. PARKER AND J.
HAROLD FLANNERY.  W.H.C. VENABLE ARGUED THE CAUSE FOR APPELLEES HOLT ET
AL. WITH HIM ON THE BRIEF WAS JOHN M. MC CARTHY. 
..END :



















ROE V. NORTON, 422 US 391 


       ROE ET AL. V. NORTON, COMMISSIONER OF WELFARE

     APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT

        NO. 73 - 6033.  ARGUED FEBRUARY 25, 1975--DECIDED JUNE 24,

1975; 365 F. SUPP. 65, VACATED AND REMANDED. 


A THREE-JUDGE DISTRICT COURT'S JUDGMENT UPHOLDING THE
CONSTITUTIONALITY OF A CONNECTICUT STATUTE THAT REQUIRES THE MOTHER OF
AN ILLEGITIMATE CHILD RECEIVING AID TO FAMILIES WITH DEPENDANT CHILDREN
(AFDC) ASSISTANCE TO DISCLOSE THE PUTATIVE FATHER'S NAME AND IMPOSING A
CRIMINAL SANCTION FOR NONCOMPLIANCE, AND CONCLUDING THAT THE STATUTE
DOES NOT CONFLICT WITH THE SOCIAL SECURITY ACT, IS VACATED AND THE CASE
IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF AN INTERVENING SOCIAL
SECURITY ACT AMENDMENT REQUIRING PARENTS, AS A CONDITION OF ELIGIBILITY
FOR AFDC ASSISTANCE, TO COOPERATE WITH STATE EFFORTS TO LOCATE AND
OBTAIN SUPPORT FROM ABSENT PARENTS BUT PROVIDING NO PUNITIVE SANCTIONS,
AND, ALSO, IF A RELEVANT STATE CRIMINAL PROCEEDING IS PENDING, IN LIGHT
OF YOUNGER V. HARRIS, 401 U.S. 37, AND HUFFMAN V. PURSUE, LTD., 420
U.S. 592. 

PER CURIAM. 

APPELLANTS, MOTHERS OF ILLEGITIMATE CHILDREN RECEIVING AID TO
FAMILIES WITH DEPENDENT CHILDREN AFDC) ASSISTANCE, AND THE CHILDREN,
COMMENCED THIS ACTION CHALLENGING SEC. 52 - 440B, CONN. GEN. STAT. REV.
(1973), /1/ WHICH REQUIRES THE MOTHER OF AN ILLEGITIMATE CHILD TO
DIVULGE TO DESIGNATED OFFICIALS THE NAME OF THE PUTATIVE FATHER OF THE
CHILD.  NONCOMPLIANCE WITH THE STATUTE IS A CONTEMPT PUNISHABLE BY
IMPRISONMENT UP TO ONE YEAR AND A FINE OF UP TO $200.  A THREE-JUDGE
DISTRICT COURT UPHELD THE CONSTITUTIONALITY OF SEC. 52 - 440B AGAINST
APPELLANTS' CLAIMS OF DENIAL OF DUE PROCESS AND EQUAL PROTECTION AND
INVASION OF APPELLANTS' RIGHT TO PRIVACY, AND ALSO CONCLUDED THAT THE
STATUTE DID NOT CONFLICT WITH THE PURPOSE AND OBJECTIVES OF THE SOCIAL
SECURITY ACT.  WE NOTED PROBABLE JURISDICTION, 415 U.S. 912 (1974). 
HOWEVER, SINCE THAT TIME PUB. L. 93 - 647, 88 STAT. 2337, WAS ENACTED. 
PUBLIC L. 93 - 647 AMENDS SEC. 402 (A) OF THE SOCIAL SECURTIY ACT TO
REQUIRE PARENTS, AS A CONDITION OF ELIGIBILITY FOR AFDC ASSISTANCE, TO
COOPERATE WITH STATE EFFORTS TO LOCATE AND OBTAIN SUPPORT FROM ABSENT
PARENTS BUT PROVIDES NO PUNITIVE SANCTIONS COMPARABLE TO THOSE PROVIDED
BY CONN. GEN. STAT. REV. SEC. 52 - 440B (1973).  SECTION 402 (A), AS
AMENDED, 88 STAT. 2359, 42 U.S.C.A. SEC. 602 (A) (FEB. 1975 SUPP.),
PROVIDES IN PERTINENT PART: 

     " A STATE PLAN FOR AID AND SERVICES TO NEEDY FAMILIES WITH
CHILDREN MUST

        * * * * * 

     "(26) PROVIDE THAT, AS A CONDITION OF ELIGIBILITY FOR AID,
EACH

  APPLICANT OR RECIPIENT WILL BE REQUIRED--,

        * * * * * 

     "(B) TO COOPERATE WITH THE STATE (I) IN ESTABLISHING THE

  PATERNITY OF A CHILD BORN OUT OF WEDLOCK WITH RESPECT TO WHOM AID

IS CLAIMED, AND (II) IN OBTAINING SUPPORT PAYMENTS FOR SUCH

  APPLICANT AND FOR A CHILD WITH RESPECT TO WHOM SUCH AID IS

  CLAIMED, OR IN OBTAINING ANY OTHER PAYMENTS OR PROPERTY DUE SUCH

  APPLICANT OR SUCH CHILD AND THAT, IF THE RELATIVE WITH WHOM THE

  CHILD IS LIVING IS FOUND TO BE INELIGIBLE BECAUSE OF FAILURE TO

  COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPHS (A) AND (B) OF THIS

  PARAGRAPH, ANY AID FOR WHICH SUCH CHILD IS ELIGIBLE WILL BE

  PROVIDED IN THE FORM OF PROTECTIVE PAYMENTS AS DESCRIBED IN

  SECTION (606 (B) (2) OF THIS TITLE) (WITHOUT REGARD TO

  SUBPARAGRAPHS (A) THROUGH (E) OF SUCH SECTION) . . . ." 

WE VACATE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE CASE FOR
FURTHER CONSIDERATION IN LIGHT OF PUB. L. 93 - 647, AND, IF A RELEVANT
STATE CRIMINAL PROCEEDING IS PENDING, ALSO FOR FURTHER CONSIDERATION IN
LIGHT OF YOUNGER V. HARRIS, 401 U.S. 37 (1971), AND HUFFMAN V. PURSUE,
LTD., 420 U.S. 592 (1975). 

                   IT IS SO ORDERED. 

/1/ SECTION 52 - 440B, CONN. GEN. STAT. REV., PROVIDES: 

"(A) IF THE MOTHER OF ANY CHILD BORN OUT OF WEDLOCK, OR THE MOTHER
OF ANY CHILD BORN TO ANY MARRIED WOMAN DURING MARRIAGE WHICH CHILD
SHALL BE FOUND NOT TO BE ISSUE OF THE MARRIAGE TERMINATED BY A DIVORCE
DECREE OR BY DECREE OF ANY COURT OF COMPETENT JURISDICTION, FAILS OR
REFUSES TO DISCLOSE THE NAME OF THE PUTATIVE FATHER OF SUCH CHILD UNDER
OATH TO THE WELFARE COMMISSIONER, IF SUCH CHILD IS A RECIPIENT OF
PUBLIC ASSISTANCE, OR TO A SELECTMAN OF A TOWN IN WHICH SUCH CHILD
RESIDES, IF SUCH CHILD IS A RECIPIENT OF GENERAL ASSISTANCE, OR OTHER
WISE TO A GUARDIAN OR A GUARDIAN AD LITEM OF SUCH CHILD, SUCH MOTHER
MAY BE CITED TO APPEAR BEFORE ANY JUDGE OF THE CIRCUIT COURT AND
COMPELLED TO DISCLOSE THE NAME OF THE PUTATIVE FATHER UNDER OATH AND TO
INSTITUTE AN ACTION TO ESTABLISH THE PATERNITY OF SAID CHILD. 

"(B) ANY WOMAN WHO, HAVING BEEN CITED TO APPEAR BEFORE A JUDGE OF
THE CIRCUIT COURT PURSUANT TO SUBSECTION (A), FAILS TO APPEAR OR FAILS
TO DISCLOSE OR FAILS TO PROSECUTE A PATERNITY ACTION MAY BE FOUND TO BE
IN CONTEMPT OF SAID COURT AND MAY BE FINED NOT MORE THAN TWO HUNDRED
DOLLARS OR IMPRISONED NOT MORE THAN ONE YEAR OR BOTH." 

MR. JUSTICE DOUGLAS CONCURS EXCEPT WITH RESPECT TO YOUNGER V.
HARRIS, 401 U.S. 37 (1971), AND HUFFMAN V. PURSUE, LTD., 420 U.S. 592
(1975). 

FRANK COCHRAN ARGUED THE CAUSE AND FILED BRIEFS FOR PARENT
APPELLANTS.  DAVID N. ROSEN ARGUED THE CAUSE FOR CHILDREN APPELLANTS. 
WITH HIM ON THE BRIEF WAS EDWARD J. DOLAN. 

MICHAEL ANTHONY ARCARI, ASSISTANT ATTORNEY GENERAL OF CONNECTICUT,
ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WERE ROBERT K.
KILLIAN, ATTORNEY GENERAL, AND PAIGE J. EVERIN, LORNA M. DWYER, AND
FRANCIS J. MAC GREGOR, ASSISTANT ATTORNEYS GENERAL. 

MARIAN WRIGHT EDELMAN, NORMAN DORSEN, AND LEO PFEFFER FILED A BRIEF
FOR THE AMERICAN ACADEMY OF CHILD PSYCHIATRY ET AL. AS AMICI CURIAE.) 
..END :










UNITED STATES V. HALE, 422 US 171 


       UNITED STATES V. HALE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 74 - 364.  ARGUED APRIL 14, 1975--DECIDED JUNE 23,
1975;

        162 U.S.APP.  D.C. 305, 498 F.2D 1035, AFFIRMED. 


FOLLOWING RESPONDENT'S ARREST FOR ROBBERY HE WAS TAKEN TO THE POLICE
STATION, WHERE, ADVISED OF HIS RIGHT TO REMAIN SILENT, HE MADE NO
RESPONSE TO AN OFFICER'S INQUIRY AS TO THE SOURCE OF MONEY FOUND ON HIS
PERSON.  RESPONDENT TESTIFIED AT HIS TRIAL AND, IN AN EFFORT TO IMPEACH
HIS ALIBI, THE PROSECUTOR CAUSED RESPONDENT TO ADMIT ON CROSS
EXAMINATION THAT HE HAD NOT OFFERED THE EXCULPATORY INFORMATION TO THE
POLICE AT THE TIME OF HIS ARREST.  THE TRIAL COURT INSTRUCTED THE JURY
TO DISREGARD THE COLLOQUY BUT REFUSED TO DECLARE A MISTRIAL. 
RESPONDENT WAS CONVICTED.  THE COURT OF APPEALS REVERSED, HOLDING THAT
INQUIRY INTO RESPONDENT'S PRIOR SILENCE IMPERMISSIBLY PREJUDICED HIS
DEFENSE AS WELL AS INFRINGED UPON HIS CONSTITUTIONAL RIGHT TO REMAIN
SILENT UNDER MIRANDA V. ARIZONA, 384 U.S. 436.  THE GOVERNMENT, RELYING
ON RAFFEL V. UNITED STATES, 271 U.S. 494, CONTENDS THAT SINCE
RESPONDENT CHOSE TO TESTIFY IN HIS OWN BEHALF, IT WAS PERMISSIBLE TO
IMPEACH HIS CREDIBILITY BY PROVING THAT HE HAD CHOSEN TO REMAIN SILENT
AT THE TIME OF HIS ARREST.  HELD:  RESPONDINT'S SILENCE DURING POLICE
INTERROGATION LACKED SIGNIFICANT PROBATIVE VALUE AND UNDER THESE
CIRCUMSTANCES ANY REFERENCE TO HIS SILENCE CARRIED WITH IT AN
INTOLERABLY PREJUDICIAL IMPACT.  THIS COURT, EXERCISING ITS SUPERVISORY
AUTHORITY OVER THE LOWER FEDERAL COURTS,THEREFORE CONCLUDES THAT
RESPONDENT IS ENTITLED TO A NEW TRIAL.  PP. 176 - 181. 

(A) UNDER THE CIRCUMSTANCES OF THIS CASE THE FAILURE OF RESPONDENT,
WHO HAD JUST BEEN GIVEN THE MIRANDA WARNINGS, TO RESPOND DURING
CUSTODIAL INTERROGATION TO INQUIRY ABOUT THE MONEY CAN AS EASILY
CONNOTE RELIANCE ON THE RIGHT TO REMAIN SILENT AS TO SUPPORT AN
INFERENCE THAT HIS TRIAL TESTIMONY WAS A LATER FABRICATION.  RAFFEL V.
UNITED STATES, SUPRA, DISTINGUISHED.  PP. 176 - 177. 

(B) RESPONDENT'S PRIOR SILENCE WAS NOT SO CLEARLY INCONSISTENT WITH
HIS TRIAL TESTIMONY AS TO WARRANT ADMISSION INTO EVIDENCE OF THAT
SILENCE AS EVIDENCE OF A PRIOR INCONSISTENT "STATEMENT," AS IS
MANIFESTED BY THE FACTS THAT (1) RESPONDENT HAD REPEATEDLY ASSERTED
INNOCENCE DURING THE PROCEEDINGS; (2) HE WAS BEING QUESTIONED IN
SECRETIVE SURROUNDINGS WITH NO ONE BUT THE POLICE ALSO PRESENT; AND (3)
AS THE TARGET OF EYEWITNESS IDENTIFICATION, HE WAS CLEARLY A "POTENTIAL
DEFENDANT."  GRUNEWALD V. UNITED STATES, 353 U.S. 391, FOLLOWED.  PP.
177 - 180. 

(C) ADMISSION OF EVIDENCE OF SILENCE AT THE TIME OF ARREST HAS A
SIGNIFICANT POTENTIAL FOR PREJUDICE IN THAT THE JURY MAY ASSIGN MUSH
MORE WEIGHT TO THE DEFENDANT'S PREVIOUS SILENCE THAN IS WARRANTED.  P.
180. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, POWELL, AND REHNQUIST, JJ., JOINED.  BURGER, C.J., POST, P.
181, DOUGLAS, J., POST, P. 182, AND WHITE, J., POST P. 182, FILED
OPINIONS CONCURRING IN THE JUDGMENT.  BLACKMUN, J., CONCURRED IN THE
RESULT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

RESPONDENT WAS TRIED AND CONVICTED OF ROBBERY IN THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA.  /1/ DURING CROSS-EXAMINATION AT TRIAL
THE PROSECUTOR ASKED RESPONDENT WHY HE HAD NOT GIVEN THE POLICE HIS
ALIBI WHEN HE WAS QUESTIONED SHORTLY AFTER HIS ARREST.  THE TRIAL COURT
INSTRUCTED THE JURY TO DISREGARD THE COLLOQUY BUT REFUSED TO DECLARE A
MISTRIAL.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
REVERSED, HOLDING THAT INQUIRY INTO RESPONDENT'S PRIOR SILENCE
IMPERMISSIBLY PREJUDICED HIS DEFENSE AND INFRINGED UPON HIS RIGHT TO
REMAIN SILENT UNDER MIRANDA V. ARIZONA, 384 U.S. 436, 468 N. 37
(1966).  WE GRANTED CERTIORARI, 419 U.S. 1045, BECAUSE OF A CONFLICT
AMONG THE COURTS OF APPEALS OVER WHETHER A DEFENDANT CAN BE CROSS
EXAMINED ABOUT HIS SILENCE DURING POLICE INTERROGATION, /2/ AND BECAUDE
OF THE IMPORTANCE OF THIS QUESTION TO THE ADMINISTRATION OF JUSTICE. 

WE FIND THAT THE PROBATIVE VALUE OF RESPONDENT'S PRETRIAL SILENCE IN
THIS CASE WAS OUTWEIGHED BY THE PREJUDICIAL IMPACT OF ADMITTING IT INTO
EVIDENCE.  AFFIRMING THE JUDGMENT ON THIS GROUND, WE HAVE NO OCCASION
TO REACH THE BROADER CONSTITUTIONAL QUESTION THAT SUPPLIED AN
ALTERNATIVE BASIS FOR THE DECISION BELOW. 

        I 

ON JUNE 1, 1971, LONNIE ARRINGTON REPORTED TO POLICE THAT HE HAD
BEEN ATTACKED AND ROBBED BY A GROUP OF FIVE MEN.  INITIALLY, HE CLAIMED
THAT $65 HAD BEEN STOLEN, BUT HE LATER CHANGED THE AMOUNT TO $96 AFTER
CONSULTING WITH HIS WIFE.  AS THE POLICE WERE PREPARING TO ACCOMPANY
ARRINGTON THROUGH THE NEIGHBORHOOD IN SEARCH OF THE ATTACKERS, HE
OBSERVED TWO MEN AND IDENTIFIED ONE OF THEM AS ONE OF HIS ASSAILANTS. 
WHEN THE POLICE GAVE CHASE, THE TWO MEN FLED BUT ONE WAS IMMEDIATELY
CAPTURED.  THE VICTIM IDENTIFIED RESPONDENT HALE AS ONE OF THE
ROBBERS.  RESPONDENT WAS THEN ARRESTED, TAKEN TO THE POLICE STATION,
AND ADVISED OF HIS RIGHT TO REMAIN SILENT.  HE WAS SEARCHED AND FOUND
TO BE IN POSSESSION OF $158 IN CASH.  AN OFFICER THEN ASKED:  " WHERE
DID YOU GET THE MONEY?"  HALE MADE NO RESPONSE. 

AT TRIAL RESPONDENT TOOK THE WITNESS STAND IN HIS OWN DEFENSE.  HE
ACKNOWLEDGED HAVING MET ARRINGTON IN A SHOE STORE ON THE DAY IN
QUESTION.  HALE STATED THAT, AFTER THE MEETING, HE WAS APPROACHED BY
THREE MEN WHO INQUIRED WHETHER ARRINGTON HAD ANY MONEY, TO WHICH HALE
REPLIED HE "DIDN'T KNOW."  FROM THERE RESPONDENT CLAIMED HE WENT TO A
NARCOTICS TREATMENT CENTER, WHERE HE REMAINED UNTIL AFTER THE TIME OF
THE ROBBERY.  ACCORDING TO HIS TESTIMONY HE LEFT THE CENTER WITH A
FRIEND WHO SUBSEQUENTLY PURCHASED NARCOTICS.  SHORTLY AFTER THE
TRANSACTION THEY APPROACHED BY THE POLICE.  HALE TESTIFIED THAT HE FLED
BECAUSE HE FEARED BEING FOUND IN THE PRESENCE OF A PERSON CARRYING
NARCOTICS.  HE ALSO INSISTED THAT HIS ESTRANGED WIFE HAD RECEIVED HER
WELFARE CHECK ON THAT DAY AND HAD GIVEN HIM APPROXIMATELY $150 TO
PURCHASE SOME MONEY ORDERS FOR HER AS HE HAD DONE ON SEVERAL PRIOR
OCCASIONS. 

IN AN EFFORT TO IMPEACH HALE'S EXPLANATION OF HIS POSSESSION OF THE
MONEY, THE PROSECUTOR CAUSED HALE TO ADMIT ON CROSS-EXAMINATION THAT HE
HAD NOT OFFERED THE EXCULPATORY INFORMATION TO THE POLICE AT THE TIME
OF HIS ARREST: 

     " Q. DID YOU IN ANY WAY INDICATE (TO THE POLICE) WHERE THAT
MONEY CAME FROM? 

     " A. NO, I DIDN'T. 

     " Q. WHY NOT? 

     " A. I DIDN'T FEEL THAT IT WAS NECESSARY AT THE TIME." 

THE GOVERNMENT TAKES THE POSITION THAT SINCE THE RESPONDENT CHOSE TO
TESTIFY IN HIS OWN BEHALF, IT WAS PERMISSIBLE TO IMPEACH HIS
CREDIBILITY BY PROVING THAT HE HAD CHOSEN TO REMAIN SILENT AT THE TIME
OF HIS ARREST.  /3/ FOR THIS PROPOSITION THE GOVERNMENT RELIES HEAVILY
ON THIS COURT'S DECISION IN RAFFEL V. UNITED STATES, 271 U.S. 494
(1926).  /4/ THERE, A SECOND TRIAL WAS REQUIRED WHEN THE FIRST JURY
FAILED TO REACH A VERDICT.  IN RELIANCE ON HIS PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION, THE ACCUSED DECLINED TO TESTIFY AT HIS
FIRST TRIAL.  AT THE SECOND TRIAL, HOWEVER, HE TOOK THE STAND IN AN
EFFORT TO REFUTE THE TESTIMONY OF A GOVERNMENT WITNESS.  OVER
OBJECTION, RAFFEL ADMITTED THAT HE HAD REMAINED SILENT IN THE FACE OF
THE SAME TESTIMONY AT THE EARLIER PROCEEDING.  UNDER THESE
CIRCUMSTANCES THE COURT CONCLUDED THAT RAFFEL'S SILENCE AT THE FIRST
TRIAL WAS INCONSISTENT WITH HIS TESTIMONY AT THE SECOND, AND THAT HIS
SILENCE COULD BE USED TO IMPEACH THE CREDIBILITY OF HIS LATER
REPRESENTATIONS.  THE GOVERNMENT ARGUES THAT SILENCE DURING POLICE
INTERROGATION IS SIMILARLY PROBATIVE AND SHOULD THEREFORE BE ADMISSIBLE
FOR IMPEACHMENT PURPOSES. 

WE CANNOT AGREE.  THE ASSUMPTION OF INCONSISTENCY UNDERLYING RAFFEL
IS ABSENT HERE.  RATHER, WE FIND THE CIRCUMSTANCES OF THIS CASE CLOSELY
PARALLEL TO THOSE IN GRUNEWALD V. UNITED STATES, 353 U.S. 391 (1957),
AND WE CONCLUDE THAT THE PRINCIPLES OF THAT DECISION COMPEL AFFIRMANCE
HERE. 

        II 

A BASIC RULE OF EVIDENCE PROVIDES THAT PRIOR INCONSISTENT STATEMENTS
MAY BE USED TO IMPEACH THE CREDIBILITY OF A WITNESS.  AS A PRELIMINARY
MATTER, HOWEVER, THE COURT MUST BE PERSUADED THAT THE STATEMENTS ARE
INDEED INCONSISTENT.  3 A J. WIGMORE, EVIDENCE SEC. 1040 (J. CHADBOURN
REV. 1970) (HEREAFTER WIGMORE).  IF THE GOVERNMENT FAILS TO ESTABLISH A
THRESHOLD INCONSISTENCY BETWEEN SILENCE AT THE POLICE STATION AND LATER
EXCULPATORY TESTIMONY AT TRIAL, PROOF OF SILENCE LACKS ANY SIGNIFICANT
PROBATIVE VALUE AND MUST THEREFORE BE EXCLUDED. 

IN MOST CIRCUMSTANCES SILENCE IS SO AMBIGUOUS THAT IT IS OF LITTLE
PROBATIVE FORCE.  FOR EXAMPLE, SILENCE IS COMMONLY THOUGHT TO LACK
PROBATIVE VALUE ON THE QUESTION OF WHETHER A PERSON HAS EXPRESSED TACIT
AGREEMENT OR DISAGREEMENT WITH CONTEMPORANEOUS STATEMENTS OF OTHERS. 
SEE 4 WIGMORE SEC. 1071.  SILENCE GAINS MORE PROBATIVE WEIGHT WHERE IT
PERSISTS IN THE FACE OF ACCUSATION, SINCE IT IS ASSUMED IN SUCH
CIRCUMSTANCES THAT THE ACCUSED WOULD BE MORE LIKELY THAN NOT TO DISPUTE
AN UNTRUE ACCUSATION.  FAILURE TO CONTEST AN ASSERTION, HOWEVER, IS
CONSIDERED EVIDENCE OF ACQUIESCENCE ONLY IF IT WOULD HAVE BEEN NATURAL
UNDER THE CIRCUMSTANCES TO OBJECT TO THE ASSERTION IN QUESTION.  3 A
WIGMORE SEC. 1042.  THE RAFFEL COURT FOUND THAT THE CIRCUMSTANCES OF
THE EARLIER CONFRONTATION NATURALLY CALLED FOR A REPLY.  ACCORDINGLY,
THE COURT HELD THAT EVIDENCE OF THE PRIOR SILENCE OF THE ACCUSED WAS
ADMISSIBLE.  BUT THE SITUATION OF AN ARRESTEE IS VERY DIFFERENT, FOR HE
IS UNDER NO DUTY TO SPEAK AND, AS IN THIS CASE, HAS ORDINARILY BEEN
ADVISED BY GOVERNMENT AUTHORITIES ONLY MOMENTS EARLIER THAT HE HAS A
RIGHT TO REMAIN SILENT, AND THAT ANYTHING HE DOES SAY CAN AND WILL BE
USED AGAINST HIM IN COURT. 

AT THE TIME OF ARREST AND DURING CUSTODIAL INTERROGATION, INNOCENT
AND GUILTY ALIKE--PERHAPS PARTICULARLY THE INNOCENT--MAY FIND THE
SITUATION SO INTIMIDATING THAT THEY MAY CHOOSE TO STAND MUTE.  A
VARIETY OF REASONS MAY INFLUENCE THAT DECISION.  IN THESE OFTEN
EMOTIONAL AND CONFUSING CIRCUMSTANCES, A SUSPECT MAY NOT HAVE HEARD OR
FULLY UNDERSTOOD THE QUESTION, OR MAY HAVE FELT THERE WAS NO NEED TO
REPLY.  SEE TRAYNOR, THE DEVILS OF DUE PROCESS IN CRIMINAL DETECTION,
DETENTION, AND TRIAL, 33 U.CHI.  L.REV.  657, 676 (1966).  HE MAY HAVE
MAINTAINED SILENCE OUT OF FEAR OR UNWILLINGNESS TO INCRIMINATE
ANOTHER.  OR THE ARRESTEE MAY SIMPLY REACT WITH SILENCE IN RESPONSE TO
THE HOSTILE AND PERHAPS UNFAMILIAR ATMOSPHERE SURROUNDING HIS
DETENTION.  IN SUM, THE INHERENT PRESSURES OF IN-CUSTODY INTERROGATION
EXCEED THOSE OF QUESTIONING BEFORE A GRAND JURY AND COMPOUND THE
DIFFICULTY OF IDENTIFYING THE REASON FOR SILENCE.  /5/ 

RESPONDENT, FOR EXAMPLE, HAD JUST BEEN GIVEN THE MIRANDA WARNINGS
AND WAS PARTICULARLY AWARE OF HIS RIGHT TO REMAIN SILENT AND THE FACT
THAT ANYTHING HE SAID COULD BE USED AGAINST HIM.  UNDER THESE
CIRCUMSTANCES, HIS FAILURE TO OFFER AN EXPLANATION DURING THE CUSTODIAL
INTERROGATION CAN AS EASILY BE TAKEN TO INDICATE RELIANCE ON THE RIGHT
TO REMAIN SILENT AS TO SUPPORT AN INFERENCE THAT THE EXPLANATORY
TESTIMONY WAS A LATER FABRICATION.  THERE IS SIMPLY NOTHING TO INDICATE
WHICH INTERPRETATION IS MORE PROBABLY CORRECT. 

        III 

OUR ANALYSIS OF THE PROBATIVE VALUE OF SILENCE BEFORE POLICE
INTERROGATORS IS SIMILAR TO THAT EMPLOYED IN GRUNEWALD V. UNITED
STATES, SUPRA.  IN THAT CASE A WITNESS BEFORE A GRAND JURY
INVESTIGATING CORRUPTION IN THE INTERNAL REVENUE SERVICE DECLINED TO
ANSWER A SERIES OF QUESTIONS ON THE GROUND THAT THE ANSWERS MIGHT TEND
TO INCRIMINATE HIM.  THE WITNESS, MAX HALPERIN, WAS LATER INDICTED FOR
CONSPIRACY TO DEFRAUD THE UNITED STATES.  AT TRIAL HE TOOK THE STAND TO
TESTIFY IN HIS OWN DEFENSE, AND THERE RESPONDED TO THE SAME QUESTIONS
IN A MANNER CONSISTENT WITH INNOCENCE.  ON CROSS-EXAMINATION THE
PROSECUTOR ELICITED, FOR PURPOSES OF IMPEACHMENT, TESTIMONY CONCERNING
THE DEFENDANT'S EARLIER INVOCATION OF THE FIFTH AMENDMENT ON THE SAME
SUBJECT MATTER.  THE COURT FRAMED THE ISSUE OF HALPERIN'S PRIOR SILENCE
AS AN EVIDENTIARY PROBLEM AND CONCLUDED THAT THE CIRCUMSTANCES
SURROUNDING HALPERIN'S APPEARANCE BEFORE THE GRAND JURY JUSTIFIED HIS
RELIANCE ON THE FIFTH AMENDMENT, IMPOSED NO MANDATE TO SPEAK, AND
PRESENTED VALID REASONS, OTHER THAN CULPABILITY, FOR DEFERRING
COMMENT.  THE COURT RULED THAT HALPERIN'S PRIOR SILENCE WAS NOT SO
CLEARLY INCONSISTENT WITH HIS LATER TESTIMONY AS TO JUSTIFY ADMISSION
OF EVIDENCE OF SUCH SILENCE AS EVIDENCE OF A PRIOR INCONSISTENT
"STATEMENT." 

IN GRUNEWALD THE COURT IDENTIFIED THREE FACTORS RELEVANT TO
DETERMINING WHETHER SILENCE WAS INCONSISTENT WITH LATER EXCULPATORY
TESTIMONY:  (1) REPEATED ASSERTIONS OF INNOCENCE BEFORE THE GRAND JURY;
(2) THE SECRETIVE NATURE OF THE TRIBUNAL IN WHICH THE INITIAL
QUESTIONING OCCURRED; /6/ AND (3) THE FOCUS ON PETITIONER AS POTENTIAL
DEFENDANT AT THE TIME OF THE ARREST, MAKING IT "NATURAL FOR HIM TO FEAR
THAT HE WAS BEING ASKED QUESTIONS FOR THE VERY PURPOSE OF PROVIDING
EVIDENCE AGAINST HIMSELF."  353 U.S., AT 423. 

APPLYING THESE FACTORS HERE, IT APPEARS THAT THIS CASE IS AN EVEN
STRONGER ONE FOR EXCLUSION OF THE EVIDENCE THAN GRUNEWALD.  FIRST, THE
RECORD REVEALS RESPONDENT'S REPEATED ASSERTIONS OF INNOCENCE DURING THE
PROCEEDINGS; THERE IS NOTHING IN THE RECORD OF RESPONDENT'S TESTIMONY
INCONSISTENT WITH HIS CLAIM OF INNOCENCE.  SECOND, THE FORUM IN WHICH
THE QUESTIONING OF HALE TOOK PLACE WAS SECRETIVE AND IN ADDITION LACKED
SUCH MINIMAL SAFEGUARDS AS THE PRESENCE OF PUBLIC ARBITERS AND A
REPORTER, WHICH WERE PRESENT IN GRUNEWALD.  EVEN MORE THAN HALPERIN,
RESPONDENT MAY WELL HAVE BEEN INTIMIDATED BY THE SETTING, OR AT THE
VERY LEAST, HE MAY HAVE PREFERRED TO MAKE ANY STATEMENTS IN MORE
HOSPITABLE SURROUNDINGS, IN THE PRESENCE OF AN ATTORNEY, OR IN OPEN
COURT.  THIRD, HALE'S STATUS AS A "POTENTIAL DEFENDANT" WAS EVEN
CLEARER THAN HALPERIN'S SINCE HALE HAD BEEN THE SUBJECT OF EYEWITNESS
IDENTIFICATION AND HAD BEEN ARRESTED ON SUSPICION OF HAVING COMMITTED
THE OFFENSE. 

THE GOVERNMENT NONETHELESS CONTENDS THAT RESPONDENT'S SILENCE AT THE
TIME OF HIS ARREST IS PROBATIVE OF THE FALSITY OF HIS EXPLANATION LATER
PROFFERED AT TRIAL BECAUSE THE INCENTIVE OF IMMEDIATE RELEASE AND THE
OPPORTUNITY FOR INDEPENDENT CORROBORATION WOULD HAVE PROMPTED AN
INNOCENT SUSPECT TO EXPLAIN AWAY THE INCRIMINATING CIRCUMSTANCES.  ON
THE FACTS OF THIS CASE, WE CANNOT AGREE.  PETITIONER HERE HAD NO REASON
TO THINK THAT ANY EXPLANATION HE MIGHT MAKE WOULD HASTEN HIS RELEASE. 
ON THE CONTRARY, HE HAD SUBSTANTIAL INDICATION THAT NOTHING HE SAID
WOULD INFLUENCE THE POLICE DECISION TO RETAIN HIM IN CUSTODY.  AT THE
TIME OF HIS ARREST PETITIONER KNEW THAT THE CASE AGAINST HIM WAS BUILT
ON SEEMINGLY STRONG EVIDENCE--ON AN IDENTIFICATION BY THE COMPLAINANT,
HIS FLIGHT AT THAT TIME, AND HIS POSSESSION OF $158.  IN THESE
CIRCUMSTANCES HE COULD NOT HAVE EXPECTED THE POLICE TO RELEASE HIM
MERELY ON THE STRENGTH OF HIS EXPLANATION.  HALE'S PRIOR CONTACTS WITH
THE POLICE AND HIS PARTICIPATION IN A NARCOTICS REHABILITATION PROGRAM
FURTHER DIMINISHED THE LIKELIHOOD OF HIS RELEASE, IRRESPECTIVE OF WHAT
HE MIGHT SAY.  IN LIGHT OF THE MANY ALTERNATIVE EXPLANATIONS FOR HIS
PRETRIAL SILENCE, WE DO NOT THINK IT SUFFICIENTLY PROBATIVE OF AN
INCONSISTENCY WITH HIS IN-COURT TESTIMONY TO WARRANT ADMISSION OF
EVIDENCE THEREOF. 

        IV 

NOT ONLY IS EVIDENCE OF SILENCE AT THE TIME OF ARREST GENERALLY NOT
VERY PROBATIVE OF A DEFENDANT'S CREDIBILITY, BUT IT ALSO HAS A
SIGNIFICANT POTENTIAL FOR PREJUDICE.  THE DANGER IS THAT THE JURY IS
LIKELY TO ASSIGN MUCH MORE WEIGHT TO THE DEFENDANT'S PREVOIUS SILENCE
THAN IS WARRANTED.  AND PERMITTING THE DEFENDANT TO EXPLAIN THE REASONS
FOR HIS SILENCE IS UNLIKEY TO OVERCOME THE STRONG NEGATIVE INFERENCE
THAT THE JURY IS LIKELY TO DRAW FROM THE FACT THAT THE DEFENDANT
REMAINED SILENT AT THE TIME OF HIS ARREST.  /7/ 

AS WE HAVE STATED BEFORE:  " WHEN THE RISK OF CONFUSION IS SO GREAT
AS TO UPSET THE BALANCE OF ADVANTAGE, THE EVIDNCE GOES OUT."  SHEPARD
V. UNITED STATES, 290 U.S. 96, 104 (1933).  WE NOW CONCLUDE THAT THE
RESPONDENT'S SILENCE DURING POLICE INTERROGATION LACKED SIGNIFICANT
PROBATIVE VALUE AND THAT ANY REFERENCE TO HIS SILENCE UNDER SUCH
CIRCUMSTANCES CARRIED WITH IT AN INTOLERABLY PREJUDICIAL IMPACT. 
ACCORDINGLY, WE HOLD THAT UNDER THE CIRCUMSTANCES OF THIS CASE IT WAS
PREJUDICIAL ERROR FOR THE TRIAL COURT TO PERMIT CROSS-EXAMINATION OF
RESPONDENT CONCERNING HIS SILENCE DURING POLICE INTERROGATION, AND WE
CONCLUDE, IN THE EXERCISE OF OUR SUPERVISORY AUTHORITY OVER THE LOWER
FEDERAL COURTS, THAT HALE IS ENTITLED TO A NEW TRIAL. 

THE JUDGMENT BELOW IS

                     AFFIRMED.     /1/ RESPONDENT WAS TRIED IN
FEDERAL DISTRICT COURT PRIOR TO THE EFFECTIVE DATE FOR THE TRANSFER OF
JURISDICTION OVER D.C.CODE OFFENSES UNDER THE DISTRICT OF COLUMBIA
COURT REFORM AND CRIMINAL PROCEDURE ACT OF 1970, PUB. L. 91 - 358, 84
STAT. 473. 

/2/ COMPARE UNITED STATES V. SEMENSOHN, 421 F.2D 1206, 1209, (CA2
1970); UNITED STATES V. BRINSON, 411 F.2D 1057, 1060 (CA6 1969); FOWLE
V. UNITED STATES, 410 F.2D 48 (CA9 1969); AND JOHNSON V. PATTERSON, 475
F.2D 1066 (CA10), CERT. DENIED, 414 U.S. 878 (1973), WITH UNITED STATES
EX REL. BURT V. NEW JERSEY, 475 F.2D 234 (CA3), CERT. DENIED, 414 U.S.
938 (1973); AND UNITED STATES V. RAMIREZ, 441 F.2D 950, 954 (CA5),
CERT. DENIED, 404 U.S. 869 (1971). 

/3/ IMMEDIATELY FOLLOWING THE EXCHANGE, THE COURT CAUTIONED THE JURY
THAT THE QUESTIONING WAS IMPROPER AND THAT THEY WERE TO DISREGARD IT.
THE COURT OF APPEALS HELD THAT THE ERROR WAS NOT CURED BY THIS
INSTRUCTION, AND THE GOVERNMENT DOES NOT CONTEND IN THIS COURT THAT THE
ERROR WAS HARMLESS. 

/4/ SIMCE WE DO NOT REACH THE CONSTITUTIONAL CLAIM RAISED TODAY, WE
NEED NOT DECIDE WHETHER THE RAFFEL DECISION HAS SURVIVED JOHNSON V.
UNITED STATES, 318 U.S. 189 (1943), AND GRIFFIN V. CALIFORNIA, 380 U.S.
609 (1965).  SEE GRUNEWALD V. UNITED STATES, 353 U.S. 391, 425 - 426
(1957) ]  BLACK, J., CONCURRING). 

/5/ SEE KAMISAR, KAUPER'S " JUDICIAL EXAMINATION OF THE ACCUSED"
FORTY YEARS LATER--SOME COMMENTS ON A REMARKABLE ARTICLE, 73 MICH.
L.REV.  15, 34 N. 70 (1974). 

/6/ INNOCENT MEN ARE MORE LIKELY TO (REMAIN SILENT) IN SECRECT
PROCEEDINGS, WHERE THEY TESTIFY WITHOUT ADVICE OF COUNSEL AND WITHOUT
OPPORTUNITY FOR CROSS-EXAMINATION, THAN IN OPEN COURT PROCEEDING, WHERE
CROSS-EXAMINATION AND JUDICIALLY SUPERVISED PROCEDURE PROVIDE
SAFEGUARDS FOR THE ESTABLISHING OF THE WHOLE, AS AGAINST THE
POSSIBILITY OF MERELY PARTIAL, TURTH."  GRUNEWALD V. UNITED STATES, 353
U.S., AT 422 - 423. 

/7/ WE RECOGNIZE THAT THE QUESTION WHETHER EVIDENCE IS SUFFICIENTLY
INCONSISTENT TO BE SENT TO THE JURY ON THE ISSUE OF CREDIBILITY IS
ORDINARILY IN THE DISCRETION OF THE TRIAL COURT.  " BUT WHERE SUCH
EVIDENTIARY MATTER HAS GRAVE CONSTITUTIONAL OVERTONES . . . WE FEEL
JUSTIFIED IN EXECISING THIS COURT'S SUPERVISORY CONTROL."  GRUNEWALD V.
UNITED STATES, 353 U.S., AT 423 - 424. 

MR. JUSTICE BLACKMUN CONCURS IN THE RESULT. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE JUDGMENT. 

I CANNOT ESCAPE THE CONCLUSION THAT THIS CASE IS SOMETHING OF A
TEMPEST IN A SAUCER AND THE COURT RIGHTLY AVOIDS PLACING THE RESULT ON
CONSTITUTIONAL GROUNDS.  A DUBIOUS ASPECT OF THE COURT'S OPINION IS TO
RENEW THE DICTUM OF GRUNEWALD V. UNITED STATES, 353 U.S. 391 (1957),
SEE ANTE, AT 178, AND N. 6.  THERE THE COURT CASUALLY ELEVATED A
FALLACY INTO A GENERAL PROPOSITION IN TERMS THAT THE INNOCENT "ARE MORE
LIKELY TO (REMAIN SILENT) IN SECRET PROCEEDINGS . . . THAN IN OPEN
COURT PROCEEDINGS . . . ."  TO BEGIN WITH, THERE IS NOT A SCINTILLA OF
EMPIRICAL DATA TO SUPPORT THE FIRST GENERALIZATION NOR IS IT SOMETHING
GENERALLY ACCEPTED AS VALIDATED BY ORDINARY HUMAN EXPERIENCE.  IT IS NO
MORE ACCURATE THAN TO SAY, FOR EXAMPLE, THAT THE INNOCENT RATHER THAN
THE GUILTY, ARE THE FIRST TO PROTEST THEIR INNOCENCE.  THERE IS SIMPLY
NO BASIS FOR DECLARING A GENERALIZED PROBILITY ONE WAY OR THE OTHER. 
SECOND, THE GRUNEWALD SUGGESTION THAT PEOPLE ARE MORE LIKELY TO SPEAK
OUT "IN OPEN COURT PROCEEDINGS . . ."  HAS NO BASIS IN HUMAN
EXPERIENCE.  A CONFIDENT, ASSURED PERSON WILL LIKELY SPEAK OUT IN
EITHER PLACE; A TIMID, INSECURE PERSON MAY BE MORE OVERWHELMED BY THE
FORMALITY OF "OPEN COURT PROCEEDINGS" THAN BY A POLICE STATION. 
MOREOVER, IF AN ACCUSED IS IN "OPEN COURT," THERE IS A CONSTITUTIONAL
OPTION TO REMAIN TOTALLY SILENT, BUT IF AN ACCUSED TAKES THE STAND ALL
ADMISSIBLE QUESTIONS MUST BE ANSWERED.  A NONPARTY WITNESS HAS LESS
OPTION THAN THE ACCUSED AND MUST TAKE THE STAND IF CALLED.  WE OUGHT TO
BE WARY OF CASUAL GENERALIZATIONS THAT READ WELL BUT "DO NOT WASH." 

MR. JUSTICE DOUGLAS, CONCURRING IN THE JUDGMENT. 

I AGREE WITH THE COURT THAT THE JUDGMENT BELOW SHOULD BE AFFIRMED, BUT
" I DO NOT, LIKE THE COURT, REST MY CONCLUSION ON THE SPECIAL
CIRCUMSTANCES OF THIS CASE.  I CAN THINK OF NO SPECIAL CIRCUMSTANCES
THAT WOULD JUSTIFY USE OF A CONSTITUTIONAL PRIVILEGE TO DISCREDIT OR
CONVICT A PERSON WHO ASSERTS IT."  GRUNEWALD V. UNITED STATES, 353 U.S.
391, 425 (1957) (CONCURRING OPINION).  MY VIEW OF THIS CASE IS
THEREFORE CONTROLLED BY MIRANDA V. ARIZONA, 384 U.S. 436 (1966).  I DO
NOT ACCEPT THE IDEA THAT MIRANDA LOSES ITS FORCE IN THE CONTEXT OF
IMPEACHING THE TESTIMONY OF A WITNESS.  SEE HARRIS V. NEW YORK, 401
U.S. 222 (1971).  IN MY OPINION MIRANDA SHOULD BE GIVEN FULL EFFECT. 

I ALSO BELIEVE, AS DOES MY BROTHER WHITE, THAT GIVEN THE EXISTENCE
OF MIRANDA DUE PROCESS IS VIOLATED WHEN THE PROSECUTION CALLS ATTENTION
TO THE SILENCE OF THE ACCUSED AT THE TIME OF ARREST. 

MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT. 

I AM NO MORE ENTHUSIASTIC ABOUT MIRANDA V. ARIZONA, 384 U.S. 436
(1966), NOW THAN I WAS WHEN THAT DECISION WAS ANNOUNCED.  BUT WHEN A
PERSON UNDER ARREST IS INFORMED, AS MIRANDA REQUIRES, THAT HE MAY
REMAIN SILENT, THAT ANYTHING HE SAYS BE USED AGAINST HIM, AND THAT HE
MAY HAVE AN ATTORNEY IF HE WISHES, IT SEEMS TO ME THAT IT DOES NOT
COMPORT WITH DUE PROCESS TO PERMIT THE PROSECUTION DURING THE TRIAL TO
CALL ATTENTION TO HIS SILENCE AT THE TIME OF ARREST AND TO INSIST THAT
BECAUSE HE DID NOT SPEAK ABOUT THE FACTS OF THE CASE AT THAT TIME, AS
HE WAS TOLD HE NEED NOT DO, AN UNFAVORABLE INFERENCE MIGHT BE DRAWN AS
TO THE TRUTH OF HIS TRIAL TESTIMONY.  CF. JOHNSON V. UNITED STATES, 318
U.S. 189, 196 - 199 (1943).  SURELY HALE WAS NOT INFORMED HERE THAT HIS
SILENCE, AS WELL AS HIS WORDS, COULD BE USED AGAINST HIM AT TRIAL. 
INDEED, ANYONE WOULD REASONABLY CONCLUDE FROM MIRANDA WARNINGS THAT
THIS WOULD NOT BE THE CASE.  I WOULD AFFIRM ON THIS GROUND. 

DEPUTY SOLICITOR GENERAL FREY ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ACTING
ASSISTANT ATTORNEY GENERAL KEENEY, AND JEROME M. FEIT. 

LARRY J. RITCHIE, BY APPOINTMENT OF THE COURT, 421 U.S. 928, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

(FRANK G. CARRINGTON, FRED E. INBAU, AND WAYNE W. SCHMIDT FILED A
BRIEF FOR AMERICANS FOR EFFECTIVE LAW ENFORCEMENT, INC., AS AMICUS
CURIAE URGING REVERSAL.) 
..END :






UNITED STATES V. ALASKA, 422 US 184 


       UNITED STATES V. ALASKA

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 73 - 1888.  ARGUED APRIL 16, 1975--DECIDED JUNE

        23, 1975; 497 F.2D 1155, REVERSED AND REMANDED. 


PROOF HELD INSUFFICIENT TO ESTABLISH COOK INLET AS A HISTORIC BAY,
AND HENCE THE UNITED STATES, AS AGAINST ALASKA, HAS PARAMOUNT RIGHTS TO
THE LAND BENEATH THE WATERS OF THE LOWER, OR SEAWARD, PORTION OF THE
INLET.  PP. 189 - 204. 

(A) THE SPARSE EVIDENCE AS TO RUSSIA'S EXERCISE OF AUTHORITY OVER
THE LOWER INLET DURING THE PERIOD OF RUSSIAN SOVEREIGNTY IS
INSUFFICIENT TO DEMONSTRATE THE EXERCISE OF AUTHORITY ESSENTIAL TO THE
ESTABLISHMENT OF A HISTORIC BAY.  PP. 190 - 192. 

(B) NOR WAS THE ENFORCEMENT OF FISHING AND WILDLIFE REGULATIONS
UNDER VARIOUS FEDERAL STATUTES AND AN EXECUTIVE ORDER DURING THE PERIOD
OF UNITED STATES SOVEREIGNTY OVER THE TERRITORY OF ALASKA SUFFICIENT IN
SCOPE TO ESTABLISH HISTORIC TITLE TO COOK INLET AS INLAND WATERS,
ESPECIALLY WHERE IT APPEARS THAT THE GEOGRAPHIC SCOPE OF SUCH
ENFORCEMENT EFFORTS WAS DETERMINED PRIMARILY, IF NOT EXCLUSIVELY, BY
THE NEEDS OF EFFECTIVE MANAGEMENT OF THE FISH AND GAME POPULATION
INVOLVED, RATHER THAN AS AN INTENDED ASSERTION OF TERRITORIAL
SOVEREIGNTY TO EXCLUDE ALL FOREIGN VESSELS AND NAVIGATION.  PP. 192 -
199. 

(C) THE MERE FAILURE OF ANY FOREIGN NATION TO PROTEST THE AUTHORITY
ASSERTED BY THE UNITED STATES DURING THE TERRITORIAL PERIOD IS
INADEQUATE PROOF OF THE ACQUIESCENCE ESSENTIAL TO HISTORIC TITLE.  IT
MUST ALSO BE SHOWN THAT THE FOREIGN GOVERNMENTS KNEW OR SHOULD HAVE
KNOWN OF THE AUTHORITY BEING ASSERTED, AND HERE THE ROUTINE ENFORCEMENT
OF DOMESTIC FISH AND GAME REGULATIONS WAS INSUFFICIENT TO INFORM THOSE
GOVERNMENTS OF ANY CLAIM OF DOMINION.  PP. 199 - 200. 

(D) THE FACT THAT ALASKA DURING ITS STATEHOOD HAS ENFORCED FISHING
REGULATIONS IN THE SAME WAY AS THE UNITED STATES DID DURING THE
TERRITORIAL PERIOD IS LIKEWISE INSUFFICIENT TO GIVE RISE TO HISTORIC
TITLE TO COOK INLET AS INLAND WATERS.  PP. 200 - 201. 

(E) NOR IS ALASKA'S ARREST OF TWO JAPANESE FISHING VESSELS IN THE
SHELIKOF STRAIT IN 1962 ADEQUATE TO ESTABLISH HISTORIC TITLE.  THAT
INCIDENT WAS AN EXERCISE OF SOVEREIGNTY, IF AT ALL, ONLY OVER THE
WATERS OF SHELIKOF STRAIT, AND, EVEN IF CONSIDERED AS AN ASSERTION OF
AUTHORITY OVER THE WATERS OF COOK INLET, THE INCIDENT WAS NOT
SUFFICIENTLY UNAMBIGUOUS TO SERVE AS THE BASIS OF HISTORIC TITLE:
ALASKA, AS AGAINST THE JAPANESE GOVERNMENT, CLAIMED THE WATERS AS
INLAND WATERS BUT THE UNITED STATES NEITHER SUPPORTED NOR DISAVOWED THE
STATE'S POSITION.  AND REGARDLESS OF HOW THE INCIDENT IS VIEWED, IT IS
IMPOSSIBLE TO CONCLUDE THAT ALASKA'S EXERCISE OF SOVEREIGNTY WAS
ACQUIESCED IN BY THE JAPANESE GOVERNMENT, WHICH IMMEDIATELY PROTESTED
THE INCIDENT AND HAS NEVER ACCEDED TO ALASKA'S POSITION.  PP. 201 -
203. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, WHITE, MARSHALL, AND POWELL, JJ., JOINED.  STEWART
AND REHNQUIST, JJ., FILED A DISSENTING STATEMENT, POST, P. 204. 
DOUGLAS, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS WHETHER THE BODY OF WATER KNOWN AS COOK INLET IS A
HISTORIC BAY.  /1/ THE INLET EXTENDS NORTHEASTWARD WELL OVER 150 MILES
INTO THE ALASKAN LAND MASS, WITH KENAI PENINSULA TO THE SOUTHEAST AND
THE CHIGMIT MOUNTAINS TO THE NORTHWEST.  THE CITY OF ANCHORAGE IS NEAR
THE HEAD OF THE INLET.  THE UPPER, OR INNER PORTION, OF THE INLET IS
NOT IN DISPUTE, FOR THAT PART IS CONCEDED TO BE INLAND WATERS SUBJECT
TO ALASKA'S SOVEREIGNTY. 

IF THE INLET IS A HISTORIC BAY, THE STATE OF ALASKA POSSESSES
SOVEREIGNTY OVER THE LAND BENEATH THE WATERS OF THE LOWER, OR SEAWARD,
PORTION OF THE INLET.  IF THE INLET IS NOT A HISTORIC BAY, THE UNITED
STATES, AS AGAINST THE STATE, HAS PARAMOUNT RIGHTS TO THE SUBSURFACE
LANDS IN QUESTION. 

I 

IN EARLY 1967 THE STATE OF ALASKA OFFERED 2,500 ACRES OF SUBMERGED
LANDS IN LOWER COOK INLET FOR A COMPETITIVE OIL AND GAS LEASE SALE. 
THE TRACT IN QUESTION IS MORE THAN THREE GEOGRAPHICAL MILES FROM THE
SHORE OF THE INLET AND IS SEAWARD MORE THAN THREE MILES FROM A LINE
ACROSS THE INLET AT KALGIN ISLAND, WHERE THE HEADLANDS ARE ABOUT 24
MILES APART, AS CONTRASTED WITH 47 MILES AT THE NATURAL ENTRANCE AT
CAPE DOUGLAS.  IN THE VIEW OF THE UNITED STATES, THE KALGIN ISLAND LINE
MARKS THE LIMIT OF THE PORTION OF THE INLET THAT QUALIFIES AS INLAND
WATERS.  THE UNITED STATES, CONTENDING THAT THE LOWER INLET CONSTITUTES
HIGH SEAS, BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ALASKA TO QUIET TITLE AND FOR INJUNCTIVE RELIEF AGAINST THE
STATE.  /2/ ALASKA DEFENDED ON THE GROUND THAT THE INLET, IN ITS
ENTIRETY, WAS WITHIN THE ACCEPTED DEFINITION OF A "HISTORIC BAY" AND
THUS CONSTITUTED INLAND WATERS PROPERLY SUBJECT TO STATE SOVEREIGNTY. 
ALASKA PREVAILED IN THE DISTRICT COURT.  352 F.SUPP.  815 (1972).  THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED WITH A
PER CURIAM OPINION.  497 F.2D 1155 (1974).  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE LITIGATION AND BECAUSE THE CASE
PRESENTED A SUBSTANTIAL QUESTION CONCERNING THE PROOF NECESSARY TO
ESTABLISH A BODY OF WATER AS A HISTORIC BAY.  419 U.S. 1045 (1974). 

      II 

STATE SOVEREIGNTY OVER SUBMERGED LANDS RESTS ON THE SUBMERGED LANDS
ACT, 67 STAT. 29 (1953), 43 U.S.C. SEC. 1301 - 1315.  /3/ BY THIS ACT,
CONGRESS EFFECTIVELY CONFIRMED TO THE STATES THE OWNERSHIP OF SUBMERGED
LANDS WITHIN THREE MILES OF THEIR COASTLINES.  /4/ SEE UNITED STATES V.
MAINE, 420 U.S. 515 (1975).  " COAST LINE" WAS DEFINED IN TERMS NOT
ONLY OF LAND BUT, AS WELL, OF "THE SEAWARD LIMIT OF INLAND WATERS." 
/5/  THE TERM "INLAND WATERS" WAS LEFT UNDEFINED. 

IN UNITED STATES V. CALIFORNIA, 381 U.S. 139, 161 - 167 (1965), THE
COURT CONCLUDED THAT THE DEFINITIONS PROVIDED IN THE CONVENTION ON THE
TERRITORIAL SEA AND THE CONTIGUOUS ZONE, (1964) 2 U.S.T. 1606, T.I.A.S.
NO. 5639, SHOULD BE ADOPTED FOR PURPOSES OF THE SUBMERGED LANDS ACT. 
SEE ALSO UNITED STATES V. LOUISIANA (LOUISIANA BOUNDARY CASE), 394 U.S.
11, 35 (1969).  UNDER ART. 7 OF THE CONVENTION, /6/ AND PARTICULARLY 5
AND 6 THEREOF, A BAY WITH NATURAL ENTRANCE POINTS SEPARATED BY MORE
THAN 24 MILES IS CONSIDERED AS INLAND WATER ONLY IF IT IS A "HISTORIC"
BAY.  SINCE THE DISTANCE BETWEEN THE NATURAL ENTRANCE POINTS TO COOK
INLET IS GREATLY IN EXCESS OF 24 MILES, THE PARTIES AGREE THAT ALASKA
MUST DEMONSTRATE THAT THE INLET IS A HISTORIC BAY IN ORDER SUCCESSFULLY
TO CLAIM SOVEREIGNTY OVER ITS LOWER WATERS AND THE LAND BENEATH THOSE
WATERS.  /7/ 

THE TERM "HISTORIC BAY" IS NOT DEFINED IN THE CONVENTION.  THE
COURT, HOWEVER, HAS STATED THAT IN ORDER TO ESTABLISH THAT A BODY OF
WATER IS A HISTORIC BAY, A COASTAL NATION MUST HAVE "TRADITIONALLY
ASSERTED AND MAINTAINED DOMINION WITH THE ACQUIESCENCE OF FOREIGN
NATIONS."  UNITED STATES V. CALIFORNIA, 381 U.S., AT 172.  FURTHERMORE,
THE COURT APPEARS TO HAVE ACCEPTED THE GENERAL VIEW THAT AT LEAST THREE
FACTORS ARE SIGNIFICANT IN THE DETERMINATION OF HISTORIC BAY STATUS:
(1) THE CLAIMING NATION MUST HAVE EXERCISED AUTHORITY OVER THE AREA;
(2) THAT EXERCISE MUST HAVE BEEN CONTINUOUS; AND (3) FOREIGN STATES
MUST HAVE ACQUIESCED IN THE EXERCISE OF AUTHORITY.  LOUISIANA BOUNDARY
CASE, 394 U.S., AT 75 AND 23 - 24, N. 27.  /8/ THESE WERE THE GENERAL
GUIDELINES FOR THE DISTRICT COURT AND FOR THE COURT OF APPEALS IN THE
PRESENT CASE. 

 III 

THE DISTRICT COURT DIVIDED ITS FINDINGS ON THE EXERCISE OF AUTHORITY
OVER LOWER COOK INLET INTO THREE TIME PERIODS, NAMELY, THAT OF RUSSIAN
SOVEREIGNTY, THAT OF UNITED STATES SOVEREIGNTY, AND THAT OF ALASKAN
STATEHOOD.  WE DISCUSS THESE IN TURN. 

        A 

THE EVIDENCE THAT RUSSIA EXERCISED AUTHORITY OVER LOWER COOK INLET
AS INLAND WATERS IS UNDERSTANDABLY SPARSE.  THE DISTRICT COURT,
NONETHELESS, CONCLUDED THAT " RUSSIA EXERCISED SOVEREIGNTY OVER THE
DISPUTED AREA OF COOK INLET."  /9/ THE COURT BASED THIS CONCLUSION ON
THREE FINDINGS.  FIRST, BY EARLY 1800'S THERE WERE FOUR RUSSIAN
SETTLEMENTS ON THE SHORES OF COOK INLET.  SECOND, ABOUT 1786, AN
ATTEMPT BY AN ENGLISH VESSEL TO ENTER THE INLET DREW A VOLLEY OF CANNON
FIRE FROM A RUSSIAN FUR TRADER IN THE VICINITY OF PORT GRAHAM.  THIRD,
IN 1821, TSAR ALEXANDER I ISSUED A UNKASE THAT PURPORTED TO EXCLUDE ALL
FOREIGN VESSELS FROM THE WATERS WITHIN 100 MILES OF THE ALASKA COAST. 
S.EXEC.  DOC. NO. 106, 50TH CONG., 2D SESS., 204 - 205 (1889). 

WE FEEL THAT NONE OF THESE FACTS, AS FOUND BY THE DISTRICT COURT
DEMONSTARTE THE EXERCISE OF AUTHORITY ESSENTIAL TO THE ESTABLISHMENT OF
A HISTORIC BAY.  THE PRESENCE OF EARLY RUSSIAN SETTLEMENTS ON THE
SHORES OF COOK INLET CERTAINLY DEMONSTRATES THE EXISTENCE OF A CLAIM TO
THE LAND, BUT IT GIVES LITTLE INDICATION OF THE AUTHORITY RUSSIA MAY
HAVE EXERTED OVER THE VAST EXPANSE OF WATERS THAT CONSTITUTES THE
INLET.  THE INCIDENT OF THE FUR TRADER'S FIRING ON AN ENGLISH VESSEL
NEAR PORT GRAHAM MIGHT BE SOME EVIDENCE OF A CLAIM OF SOVEREIGNTY OVER
THE WATERS INVOLVED, BUT THE ACT APPEARS TO BE THAT OF A PRIVATE
CITIZEN RATHER THAN OF A GOVERNMENT OFFICIAL.  /10/ IN THE ABSENCE OF
SOME EVIDENCE THAT THE TRADER WAS ACTING WITH GOVERNMENTAL AUTHORITY,
THE INCIDENT IS ENTITLED TO LITTLE LEGAL SIGNIFICANCE.  MOREOVER, UNDER
THE THEN-COMMON CANNON SHOT RULE, THE FIRING OF CANNON FROM SHORE WAS
WHOLLY CONSISTENT WITH THE PRESENT POSITION OF THE UNITED STATES THAT
THE INLAND WATERS OF ALASKA NEAR PORT GRAHAM ARE TO BE MEASURED BY THE
THREE-MILE LIMIT.  /11/ FINALLY, THE IMPERIAL UKASE OF 1821 IS CLEARLY
INADEQUATE AS A DEMONSTRATION OF RUSSIAN AUTHORITY OVER THE WATERS OF
COOK INLET BECAUSE SHORTLY AFTER IT HAD BEEN ISSUED THE UKASE WAS
UNEQUIVOCALLY WITHDRAWN IN THE FACE OF VIGOROUS PROTESTS FROM THE
UNITED STATES AND ENGLAND.  /12/

        B 

IN REVIEWING THE PERIOD OF UNITED STATES SOVEREIGNTY OVER THE
TERRITORY OF ALASKA, /13/ THE DISTRICT COURT FOUND THAT THERE HAD BEEN
FIVE SEPARATE INSTANCES IN WHICH THE FEDERAL GOVERNMENT HAD EXERCISED
AUTHORITY OVER ALL THE WATERS OF COOK INLET.  PET. FOR CERT. 26A-37A. 

1. REVISED STATUTES SEC. 1956 (1878).  SOON AFTER ALASKA WAS CEDED
TO THE UNITED STATES, CONGRESS PROHIBITED THE KILLING OF SEA OTTER AND
OTHER FUR-BEARING ANIMALS "WITHIN THE LINITS OF SAID TERRITORY, OR IN
THE WATERS THEREOF."  ACT OF JULY 27, 1868, 15 STAT. 241, CODIFIED AS
REV. STAT. SEC. 1956 (1878).  BY ITSEF, THE STATUTORY LANGUAGE DOES NOT
INDICATE WHETHER THE WATERS OF LOWER COOK INLET WERE ENCOMPASSED WITHIN
THE LIMITS OF ALASKA "TERRITORY, OR IN THE WATERS THEREOF."  THE
DISTRICT COURT, HOWEVER, FOUND THAT IN 1892 AND 1893 FIVE AMERICAN
VESSELS WERE BOARDED MORE THAN THREE MILES FROM SHORE IN THE LOWER
INLET BY UNITED STATES REVENUE OFFICIALS INVESTIGATING POSSIBLE
VIOLATIONS OF SEC. 1956.  /14/ FROM THESE BOARDINGS THE DISTRICT COURT
CONCLUDED THAT THE STATUTORY PROHIBITION WAS ENFORCED THROUGHOUT COOK
INLET. 

2. THE ALIEN FISHING ACT OF 1906.  THIS ACT, 34 STAT. 263,
PROHIBITED NONCITIZENS OF THE UNITED STATES FROM FISHING BY COMMERCIAL
METHODS "IN ANY OF THE WATERS OF ALASKA UNDER THE JURISDICTION OF THE
UNITED STATES."  ONCE AGAIN, THE BARE LANUGUAGE OF THE STATUTE FAILS TO
REVEAL THE EXTENT TO WHICH THE PROHIBITION APPLIED TO THE WATERS OF
LOWER COOK INLET.  THERE IS NO EVIDENCE IN THE RECORD AND NO FINDINGS
BY THE DISTRICT COURT OF ANY INSTANCE IN WHICH THE ALIEN FISHING ACT
WAS ENFORCED IN THE WATERS OF COOK INLET.  /15/ 

3. EXECUTIVE ORDER NO. 3752.  IN 1922 PRESIDENT HARDING ISSUED AN
EXECUTIVE ORDER CREATING THE SOUTHWESTERN ALASKA FISHERIES
RESERVATION.  EXEC. ORDER NO. 3752 (NOV. 3, 1922); 2 APP.676.  THE
ORDER SUBJECTED ALL COMMERCIAL FISHING WITHIN THE RESERVATION TO
SUBSTANTIAL REGULATION.  SEE REGULATIONS FOR THE ADMINISTRATION OF THE
SOUTHWESTERN ALASKA FISHERIES RESERVATION, DEPARTMENT OF COMMERCE
CIRCULAR NO. 251, PP. 8 - 9 (9TH D., JAN. 9, 1923); 2 APP. 678 - 679. 
THE RESERVATION WAS DESCRIBED IN THE ORDER BY A SERIES OF STRAIGHT
BASELINES TO ENCOMPASS A SUBSTANTIAL EXPANSE OF WATERS, AND THE
REGULATIONS PROMULGATED PURSUANT TO THE ORDER BY SECRETARY OF COMMERCE
HOOVER REFERRED TO AND EMBRACED "ALL THE SHORES AND WATERS OF COOK
INLET." 

4. THE WHITE ACT.  IN 1924 CONGRESS PASSED " AN ACT FOR THE
PROTECTION OF THE FISHERIES OF ALASKA, AND FOR OTHER PURPOSES,"
OTHERWISE KNOWN AS THE WHITE ACT.  C.272, 43 STAT. 464.  THIS
AUTHORIZED THE SECRETARY OF COMMERCE TO "SET APART AND RESERVE FISHING
AREAS IN ANY OF THE WATERS OF ALASKA OVER WHICH THE UNITED STATES HAS
JURISDICTION."  IBID.  THE ACT SUBJECTED COMMERCIAL FISHING WITHIN THE
RESERVED WATERS TO SUCH REGULATIONS AS THE SECRETARY MIGHT ISSUE.  FROM
THAT TIME UNTIL ALASKA STATEHOOD, THE REGULATIONS OF THE SECRETARY
DEFINED THE WATERS SET ASIDE PURSUANT TO THE ACT TO INCLUDE ALL THE
WATERS OF COOK INLET.  THE DISTRICT COURT FOUND THAT THERE HAD BEEN
SEVERAL INSTANCES OF ENFORCEMENT OF FISHING REGULATIONS AGAINST
AMERICAN VESSELS MORE THAN THREE MILES FROM SHORE IN LOWER COOK INLET. 

5. THE GHARRETT-SCDDER LINE.  IN 1957 REPRESENTATIVES OF CANADA AND
OF THE UNITED STATES MET TO DISCUSS THE POSSIBILITY OF PROHIBITING
CITIZENS OF THE TWO COUNTRIES FROM FISHING WITH NETS FOR SALMON IN
INTERNATIONAL WATERS IN THE NORTH PACIFIC.  THE DELEGATES GENERALLY
AGREED THAT THE LINE USED BY THE UNITED STATES FOR ENFORCING FISHING
REGULATIONS UNDER THE WHITE ACT AND RELATED STATUTES WOULD BE USED TO
DELIMIT "OFFSHORE WATERS" FOR PURPOSES OF THE JOINT SALMON FISHING
LIMITATIONS.  SINCE THE CANADIAN DELEGATES FELT THAT THE DESCRIPTION OF
THE CLOSING LINES CONNECTING HEADLANDS IN THE ALASKA FISHERY
REGULATIONS WERE NOT DEFINITIVE, THEY REQUESTED A MAP SHOWING THE
AMERICAN LINE WITH GREATER PRECISION.  TWO UNITED STATES BUREAU OF
FISHERIES EMPLOYEES, JOHN T. GHARRETT AND HENRY CLAY SCUDDER, PREPARED
A CHART OF THE ALASKA COAST WITH A LINE REFLECTING THE BOUNDARIES IN
THE THEN-CURRENT UNITED STATES FISHERY REGULATIONS.  THIS SO-CALLED
GHARRETT-SCUDDER LINE ENCLOSED ALL THE WATERS OF COOK INLET.  CHARTS
REFLECTING THE LINE WERE TRANSMITTED TO THE CANADIAN DELEGATES.  IT IS
UNDISPUTED THAT THE EXACT LOCATION OF THE GHARRETT-SCUDDER LINE WAS
DETERMINED PRIMARILY WITH REFERENCE TO THE NEEDS OF FISHERY
MANAGEMENT.  /16/ THE MAPS WERE FORWARDED BY THE BUREAU OF FISHERIES TO
THE STATE DEPARTMENT FOR TRANSMITTAL TO THE CANADIAN DELEGATES WITH
EXPRESS DISCLAMERS THAT THE LINE WAS INTENDED TO BEAR ANY RELATIONSHIP
TO THE TERRITORIAL WATERS OF THE UNITED STATES IN A LEGAL SENSE. 

BASED ON THE FACTS SUMMARIZED ABOVE, THE DISTRICT COURT CONCLUDED
THAT THE UNITED STATES HAD EXERCISED AUTHORITY OVER THE WATERS OF LOWER
COOK INLET CONTINUOUSLY FROM THE TREATY OF CESSION IN 1869 UNTIL ALASKA
STATEHOOD.  THE DISTRICT COURT, OF COURSE, WAS CLEARLY CORRECT INSOFAR
AS IT FOUND THAT THE UNITED STATES HAD EXERCISED JURISDICTION OVER
LOWER COOK INLET DURING THE TERRITORIAL PERIOD FOR THE PURPOSE OF FISH
AND WILDLIFE MANAGEMENT.  IT IS FAR FROM CLEAR, HOWEVER, THAT THE
DISTRICT COURT WAS CORRECT IN CONCLUDING THAT THE FACT OF ENFORCEMENT
OF FISH AND WILDLIFE REGULATIONS WAS LEGALLY SUFFICIENT TO DEMONSTRATE
THE TYPE OF AUTHORITY THAT MUST BE EXERCISED TO ESTABLISH TITLE TO A
HISTORIC BAY. 

IN DETERMINING WHETHER THE ENFORCEMENT OF FISHERY AND WILDLIFE
MANAGEMENT REGULATIONS IN COOK INLET WAS AN EXERCISE OF AUTHORITY
SUFFICIENT TO ESTABLISH TITLE TO THAT BODY OF WATER AS A HISTORIC BAY,
IT IS NECESSARY TO RECALL THE THREEFOLD DIVISON OF THE SEA RECOGNIZED
IN INTERNATIONAL LAW.  AS THE COURT STATED IN THE LOUISIANA BOUNDARY
CASE: 

     " UNDER GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW,
THE

  NAVIGABLE SEA IS DIVIDED INTO THREE ZONES, DISTINGUISHED BY THE

NATURE OF THE CONTROL WHICH THE CONTIGUOUS NATION CAN EXERCISE

  OVER THEM.  NEAREST TO THE NATION'S SHORES ARE ITS INLAND, OR

  INTERNAL WATERS.  THESE ARE SUBJECT TO THE COMPLETE SOVEREIGNTY

  OF THE NATION, AS MUCH AS IF THEY WERE A PART OF ITS LAND

  TERRITORY, AND THE COASTAL NATION HAS THE PRIVILEGE EVEN TO

  EXCLUDE FOREIGN VESSELS ALTOGETHER.  ##HC197 BEYOND THE INLAND

  WATERS, AND MEASURED FROM THEIR SEAWARD EDGE, IS A BELT KNOWN AS

  THE MARGINAL, OR TERRITORIAL, SEA.  WITHIN IT THE COASTAL NATION

  MAY EXERCISE EXTENSIVE CONTROL BUT CANNOT DENY THE RIGHT OF

  INNOCENT PASSAGE TO FOREIGN NATIONS.  OUTSIDE THE TERRITORIAL SEA

ARE THE HIGH SEAS, WHICH ARE INTERNATIONAL WATERS NOT SUVJECT TO

  THE DOMINION OF ANY SINGLE NATION."  394 U.S., AT 22 - 23

  (FOOTNOTES OMITTED). 

WE ALSO RECOGNIZED IN THE LOUISIANA BOUNDARY CASE THAT THE EXERCISE
OF AUTHORITY NECESSARY TO ESTABLISH HISTORIC TITLE MUST BE COMMENSURATE
IN SCOPE WITH THE NATURE OF THE TITLE CLAIMED.  THERE THE STATE OF
LOUISIANA ARGUED THAT THE EXERCISE OF JURISDICTION OVER CERTAIN COASTAL
WATERS FOR PURPOSES OF REGULATING NAVIGATION HAD GIVEN RISE TO HISTORIC
TITLE OVER THE WATERS IN QUESTION AS INLAND WATERS.  SINCE THE
NAVIGATION RULES IN QUESTION HAD ALLOWED THE INNOCENT PASSAGE OF
FOREIGN VESSELS, A CHARACTERISTIC OF TERRITORIAL SEAS RATHER THAN OF
INLAND WATERS, THE COURT CONCLUDED THAT THE EXERCISE OF AUTHORITY WAS
NOT SUFFICIENT IN SCOPE TO ESTABLISH HISTORIC TITLE OVER THE AREA AS
INLAND WATERS.  394 U.S., AT 24 - 26.     AS HAS BEEN NOTED, AND AS THE
PARTIES AGREE, ALASKA, IN ORDER TO PREVAIL IN THIS CASE, MUST ESTABLISH
HISTORIC TITLE TO COOK INLET AS INLAND WATERS.  FOR THIS SHOWING, THE
EXERCISE OF SOVEREIGNTY MUST HAVE BEEN, HISTORICALLY, AN ASSERTION OF
POWER TO EXCLUDE ALL FOREIGN VESSELS AND NAVIGATION.  THE ENFORCEMENT
OF FISHING AND WILDLIFE REGULATIONS, AS FOUND AND RELIED UPON BY THE
DISTRICT COURT, WAS PATENTLY INSUFFICIENT IN SCOPE TO ESTABLISH
HISTORIC TITLE TO COOK INLET AS INLAND WATERS. 

ONLY ONE OF THE FISHING REGULATIONS RELIED UPON BY THE COURT, THE
ALIEN FISHING ACT, TREATED FOREIGN VESSELS ANY DIFFERENTLY THAN IT DID
AMERICAN VESSELS.  THAT ACT, HOWEVER, DID NOT PURPORT TO APPLY BEYOND
THE THREE-MILE LIMIT IN COOK INLET.  IT SIMPLY APPLIED TO "THE WATERS
OF ALASKA UNDER THE JURISDICTION OF THE UNITED STATES."  34 STAT. 263. 
THE MEANING OF THAT GENERAL STATUTORY PHRASE, AS APPLIED TO COOK INLET,
CAN ONLY BE SURMISED, SINCE THERE WAS NOT A SINGLE INSTANCE OF
ENFORCEMENT TO SUGGEST THAT THE ACT WAS APPLICABLE TO FOREIGN VESSELS
IN THE WATERS BEYOND THE THREE-MILE LIMIT IN LOWER COOK INLET.  THE
REMAINDER OF THE FISH AND WILDLIFE REGULATIONS RELIED UPON BY THE
DISTRICT COURT CLEARLY WERE ENFORCED THROUGHOUT LOWER COOK INLET FOR AT
LEAST MUCH OF THE TERRITORIAL PERIOD, BUT THESR REGULATIONS WERE NOT
COMMENSURATE IN SCOPE WITH THE CLAIM OF EXCLUSIVE DOMINION ESSENTIAL TO
HISTORIC TITLE OVER INLAND WATERS.  EACH AFFORDED FOREIGN VESSELS THE
SAME RIGHTS AS WERE ENJOYED BY AMERICAN SHIPS.  TO BE SURE, THERE WERE
INSTANCES OF ENFORCEMENT IN THE LOWER INLET, BUT IN EACH CASE THE
VESSELS INVOLVED WERE AMERICAN.  THESE INCIDENTS PROVE VERY LITTLE, FOR
THE UNITED STATES CAN AND DOES ENFORCE FISHING AND WILDLIFE REGULATIONS
AGAINST ITS OWN NATIONALS, EVEN ON THE HIGH SEAS.  SEE, E. G., 38 STAT.
692, 16 U.S.C. SEC. 781 (TAKING COMMERCIAL SPONGES IN THE GULF OF
MEXICO OR THE STRAITS OF FLORIDA); 80 STAT. 1091, 16 U.S.C. SEC. 1151
(TAKING FUR SEALS IN THE NOTH PACIFIC OCEAN); 86 STAT. 1032, AS
AMENDED, 16 U.S.C. SEC. 1372 (1970 ED., SUPP. III) (TAKING MARINE
MAMMALS ON THE HIGH SEAS).  SEE ALSO SKIRIOTES V. FLORIDA, 313 U.S. 69
(1941). 

OUR CONCLUSION THAT THE FACT OF ENFORCEMENT OF GAME AND FISH
REGULATIONS IN COOK INLET IS INADEQUATE, AS A MATTER OF LAW, TO
ESTABLISH HISTORIC TITLE TO THE INLET AS INLAND WATERS IS NOT BASED ON
MERE TECHNICALITY.  THE ASSERTION OF NATIONAL JURISDICTION OVER COASTAL
WATERS FOR PURPOSES OF FISHERIES MANAGEMENT FREQUENTLY DIFFERS IN
GEOGRAPHIC EXTENT FROM THE BOUNDARIES CLAIMED AS INLAND OR EVEN
TERRITORIAL WATERS.  SEE, E.G., PRESIDENTIAL PROCLAMATION NO. 2668, 59
STAT. 885 (1945).  THIS LIMITED CIRCUMSCRIPTION OF THE TRADITIONAL
FREEDOM OF FISHING ON THE HIGH SEAS IS BASED, IN PART, ON A RECOGNITION
OF THE SPECIAL INTEREST THAT A COASTAL STATE HAS IN THE PRESERVATION OF
THE LIVING RESOURCES IN THE HIGH SEAS ADJACENT TO ITS TERRITORIAL SEA. 
CONVENTION ON FISHING AND CONSERVATION OF THE LIVING RESOURCES OF THE
HIGH SEAS, ART. 6, 1, (1966) 1 U.S.T. 138, 141, T.I.A.S. 5969. 

EVEN A CASUAL EXAMINATION OF THE FACTS RELIED UPON BY THE DISTRICT
COURT IN THIS CASE REVEALS THAT THE GEOGRAPHIC SCOPE OF THE FISH AND
WILDLIFE ENFORCEMENT EFFORTS WAS DETERMIND PRIMARILY, IF NOT
EXCLUSIVELY, BY THE NEEDS OF EFFECTIVE MANAGEMENT OF THE FISH AND GAME
POPULATION INVOLVED.  THUS, FOR EXAMPLE, THE GHARRETT SCUDDER LINE,
WHICH THE DISTRICT COURT CONSIDERED "A CLASSIC DEMONSTRATION OF THE
ASSERTION BY THE UNITED STATES GOVERNMENT OF ITS CLAIM TO SOVEREIGNTY
OVER THE WHOLE OF COOK INLET," PET. FOR CERT. 37A, WAS DRAWN ALMOST
SOLELY WITH REFERENCE TO THE NEEDS OF THE COASTAL SALMON NET FISHERIES
AND WAS NEVER INTENDED TO DEPICT THE BOUNDARIES OF THE TERRITORIAL
WATERSOF THE UNITED STATES.  INDEED, THE VERY METHOD OF DRAWING THE
FISHERY BOUNDARIES BY USE OF STRAIGHT BASELINES CONFLICTED WITH THIS
COUNTRY'S TRADITIONAL POLICY OF MEASURING ITS TERRITORIAL WATERS BY THE
SINUOSITY OF THE COAST.  SEE UNITED STATES V. CALIFORNIA, 381 U.S., AT
167 - 169. 

EVEN IF WE COULD AGREE THAT THE BOUNDARIES SELECTED FOR PURPOSES OF
ENFORCING FISH AND WILDLIFE REGULATIONS COINCIDED WITH AN INTENDED
ASSERTION OF TERRITORIAL SOVEREIGNTY OVER COOK INLET AS INLAND WATERS,
WE STILL WOULD DISAGREE WITH THE DISTRICT COURT'S CONCLUSION THAT
HISTORIC TITLE WAS ESTABLISHED IN THE TERRITORIAL PERIOD.  THE COURT
FOUND THAT THE THIRD ESSENTIAL ELEMENT OF HISTORIC TITLE, ACQUIESCENCE
BY FOREIGN NATIONS, WAS SATISFIED BY THE FAILURE OF ANY FOREIGN NATION
TO PROTEST.  SCHOLARLY COMMENT IS DIVIDED OVER WHETHER THE MERE ABSENCE
OF OPPOSITION SUFFICES TO ESTABLISH TITLE.  SEE JURIDICAL REGIME OF
HISTORIC WATERS, INCLUDING HISTORIC BAYS, 2 YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION, 1962, PP. 1, 16 - 19 (U.N.DOC.  A/ CN.4/
143).  THE COURT PREVIOUSLY HAS NOTED THIS DIVISION BUT HAS TAKEN NO
POSITION IN THE DEBATE.  SEE LOUISIANA BOUNDARY CASE, 394 U.S., AT 23 -
24, N. 27.  IN THIS CASE, WE FEEL THAT SOMETHING MORE THAN THE MERE
FAILURE TO OBJECT MUST BE SHOWN.  THE FAILURE OF OTHER COUNTRIES TO
PROTEST IS MEANINGLESS UNLESS IT IS SHOWN THAT THE GOVERNMENTS OF THOSE
COUNTRIES KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE AUTHORITY BEING
ASSERTED.  MANY ASSERTIONS OF AUTHORITY ARE SUCH CLEAR EXPRESSIONS OF
EXCLUSIVE SOVEREIGNTY THAT THEY CANNOT BE MISTAKEN BY OTHER
GOVERNMENTS.  OTHER ASSERTIONS OF AUTHORITY, HOWEVER, MAY NOT BE SO
CLEAR.  ONE SCHOLAR NOTES:  " THUS, THE PLACING OF LIGHTS OR BECONS MAY
SOMETIMES APPEAR TO BE AN ACT OF SOVEREIGNTY, WHILE IN OTHER
CIRCUMSTANCES IT MAY HAVE NO SUCH SIGNIFICANCE."  JURIDICAL REGIME OF
HISTORIC WATERS, SUPRA, AT 14.  WE BELIEVE THAT THE ROUTINE ENFORCEMENT
OF DOMESTIC GAME AND FISH REGULATIONS IN COOK INLET IN THE TERRITORIAL
PERIOD FAILED TO INFORM FOREIGN GOVERNMENTS OF ANY CLAIM OF DOMINION. 
IN THE ABSENCE OF ANY AWARENESS ON THE PART OF FOREIGN GOVERNMENTS OF A
CLAIMED TERRITORIAL SOVEREIGNTY OVER LOWER COOK INLET, THE FAILURE OF
THOSE GOVERNMENTS TO PROTEST IS INADEQUATE PROOF OF THE ACQUIESCENCE
ESSENTIAL TO HISTORIC TITLE. 

        C 

THE DISTRICT COURT STRESSED TWO FACTS AS EVIDENCE THAT ALASKA HAD
EXERCISED SOVEREIGNTY OVER ALL THE WATERS OF COOK INLET IN THE RECENT
PERIOD OF ALASKA STATEHOOD.  FIRST, THE COURT FOUND THAT SINCE
STATEHOOD ALASKA HAD ENFORCED FISHING REGULATIONS IN BASICALLY THE SAME
FASHION AS HAD THE UNITED STATES DURING THE TERRITORIAL PERIOD. 
SECOND, THE COURT FOUND THAT IN 1962 ALASKA HAD ARRESTED TWO VESSELS OF
A JAPANESE FISHING FLEET IN THE SHELIKOF STRAIT.  SINCE WE HAVE
CONCLUDED THAT THE GENERAL ENFORCEMENT OF FISHING REGULATIONS BY THE
UNITED STATES IN THE TERRITORIAL PERIOD WAS INSUFFICIENT TO DEMONSTRATE
SOVEREIGNTY OVER COOK INLET AS INLAND WATERS, WE ALSO MUST CONCLUDE
THAT ALASKA'S FOLLOWING THE SAME BASIC PATTERN OF ENFORCEMENT IS
INSUFFICIENT TO GIVE RISE TO THE HISTORIC TITLE NOW CLAIMED.  THE
SHELIKOF STRAIT INCIDENT, HOWEVER, DESERVES SCRUTINY BECAUSE THE
SEIZURE OF A FOREIGN VESSEL MORE THAN THREE MILES FROM SHORE MANIFESTS
AN ASSERTION OF SOVEREIGNTY TO EXCLUDE FOREIGN VESSELS ALTOGETHER. 

THE FACTS OF THE INCIDENT, FOR THE MOST PART, ARE UNDISPUTED.  IN
EARLY 1962 A PRIVATE COMMERCIAL FISHING ENTERPRISE IN JAPAN, EASTERN
PACIFIC FISHERIES COMPANY, PUBLICLY ANNOUNCED ITS INTENTION TO SEND A
FISHING FLEET INTO THE WATERS OF COOK INLET AND THE SHELIKOF STRAIT. 
ALASKA OFFICIALS LEARNED OF THE PLAN THROUGH NEWSPAPER ACCOUNTS AND
REQUESTED ACTION BY THE FEDERAL GOVERNMENT TO PREVENT ENTRY OF THE
FLEET INTO THE INLET AND THE STRAIT.  THE FEDERAL GOVERNMENT, ALTHOUGH
THUS FOREWARNED OF THE INTRUSION, SIGNIFICANTLY TOOK NO ACTION.  IN
MARCH 1962, THE MOTHERSHIP BANSHU MARU 31 AND FIVE OTHER VESSELS
ARRIVED AT THE KODIAK FISHING GROUNDS.  ON APRIL 5, THE SIX VESSELS
SAILED NORTH OF THE BARREN ISLANDS INTO THE LOWER PORTION OF COOK
INLET.  THE VESSELS LEFT THE INLET THE NEXT DAY WITHOUT INCIDENT AND
SAILED SOUTHWEST INTO THE SHELIKOF STRAIT.  THE VESSELS FISHED IN THE
STRAIT FOR APPROXIMATELY 10 DAYS UNDISTURBED.  THEN, ON APRIL 15,
ALASKA LAW ENFORCEMENT OFFICIALS BOARDED TWO OF THE VESSELS IN THE
SHELIKOF STRAIT.  AT THE TIME, AT LEAST ONE OF THE SHIPS WAS MORE THAN
THREE MILES FROM SHORE.  THE OFFICIALS ARRESTED THREE OF THE FLEET'S
CAPTAINS AND CHARGED THEM WITH VIOLATING THE STATE FISHING REGULATIONS
APPLICABLE TO THE STRAIT.  ON APRIL 19, EASTERN PACIFIC FISHERIES
COMPANY AND THE STATE OF ALASKA ENTERED INTO AN AGREEMENT WHEREBY THE
STATE RELEASED THE COMPANY'S EMPLOYEES AND SHIPS IN RETURN FOR A
PROMISE FROM THE COMPANY THAT IT WOULD NOT FISH IN THE INLET OR IN THE
STRAIT PENDING JUDICIAL RESOLUTION OF THE STATE'S JURISDICTION TO
ENFORCE FISHING REGULATIONS THEREIN.  2 APP. 1186 - 1188.  THE JAPANESE
GOVERNMENT DID NOT PARTICIPATE IN, OR APPROVE OF, THE AGREEMENT BETWEEN
THE COMPANY AND ALASKA.  INSTEAD, SHORTLY AFTER THE AGREEMENT WAS
EXECUTED, JAPAN FORMALLY PROTESTED TO THE UNITED STATES GOVERNMENT. 
OUR GOVERNMENT DECLINED TO TAKE AN OFFICIAL POSITION ON THE MATTER
PENDING COMPLETION OF THE JUDICIAL PROCEEDINGS.  ULTIMATELY, THE
JUDICIAL PROCEEDINGS WERE DISMISSED WITHOUT REACHING ANY CONCLUSION ON
THE EXTENT OF ALASKAN JURISDICTION OVER THE STRAIT.  THE FEDERAL
GOVERNMENT TOOK NO FORMAL POSITION ON THE ISSUE AFTER THE DISMISSAL OF
THE PROCEEDINGS. 

TO THE EXTENT THAT THE SHELIKOF STRAIT INCIDENT REVEALS A
DETERMINATION ON THE PART OF ALASKA TO EXCLUDE ALL FOREIGN VESSELS, IT
MUST BE VIEWED, TO BE SURE, AS AN EXERCISE OF AUTHORITY OVER THE WATERS
IN QUESTION AS INLAND WATERS.  NEVERTHELESS, FOR SEVERAL REASONS, WE
FIND THE INCIDENT INADEQUATE TO ESTABLISH HISTORIC TITLE TO COOK INLET
AS INLAND WATERS.  FIRST, THE INCIDENT WAS AN EXERCISE OF SOVEREIGNTY,
IF AT ALL, ONLY OVER THE WATERS OF SHELIKOF STRAIT.  THE VESSELS WERE
BOARDED IN THE STRAIT, SOME 75 MILES SOUTHWEST FROM THE NEAREST PORTION
OF THE INLET.  ALTHOUGH ALASKA OFFICIALS KNEW OF THE FLEET'S EARLIER
ENTRY INTO COOK INLET, NO ACTION WAS TAKEN TO FORCE THE VESSELS TO
LEAVE THE INLET, AND NO CHARGES WERE FILED FOR THE INTRUSION INTO THOSE
WATERS.  SECOND, EVEN IF THE EVENTS IN SHELIKOF STRAIT COULD CONSTITUTE
AN ASSERTION OF AUTHORITY OVER THE WATERS OF COOK INLET AS WELL AS
THOSE OF THE STRAIT, WE ARE NOT SATISFIED THAT THE EXERCISE OF
AUTHORITY WAS SUFFICIENTLY UNAMBIGUOUS TO SERVE AS THE BASIS OF
HISTORIC TITLE TO INLAND WATERS.  THE ADEQUACY OF A CLAIM TO HISTORIC
TITLE, EVEN IN A DISPUTE BETWEEN A STATE AND THE UNITED STATES, IS
MEASURED PRIMARILY AS AN INTERNATIONAL, RATHER THAN A PURELY DOMESTIC,
CLAIM.  SEE UNITED STATES V. CALIFORNIA, 381 U.S., AT 168; LOUISIANA
BOUNDARY CASE, 394 U.S., AT 77.  VIEWED FROM THE STANDPOINT OF THE
JAPANESE GOVERNMENT, THE IMPORT OF THE INCIDENT IN THE STRAIT IS FAR
FROM CLEAR.  ALASKA CLEARLY CLAIMED THE WATERS IN QUESTION AS INLAND
WATERS, BUT THE UNITED STATES NEITHER SUPPORTED NOR DISCLAIMED THE
STATE'S POSITION.  GIVEN THE AMBIGUITY OF THE FEDERAL GOVERNMENT'S
POSITION, WE CANNOT AGREE THAT THE ASSERTION OF SOVEREIGNTY POSSESSED
THE CLARITY ESSENTIAL TO A CLAIM OF HISTORIC TITLE OVER INLAND WATERS. 
FINALLY, REGARDLESS OF HOW ONE VIEWS THE SHELIKOF STRAIT INCIDENT, IT
IS IMPOSSINLE TO CONCLUDE THAT THE EXERCISE OF SOVEREIGNTY WAS
ACQUIESCED IN BY THE JAPANESE GOVERNMENT.  JAPAN IMMEDIATELY PROTESTED
THE INCIDENT AND HAS NEVER ACCEDED TO THE POSITION TAKEN BY ALASKA. 
ADMITTEDLY, THE EASTERN PACIFIC FISHERIES COMPANY FORMALLY AND
TENTATIVELY AGREED TO RESPECT THE JURISDICTION CLAIMED BY ALASKA BUT,
AS WE HAVE ALREADY NOTED, THE ACTS OF A PRIVATE CITIZEN CANNOT BE
CONSIDERED REPRESENTATIVE OF A GOVERNMENT'S POSITION IN THE ABSENCE OF
SOME OFFICIAL LICENSE OR OTHER GOVERNMENTAL AUTHORITY. 

IN SUM, WE HOLD THAT THE SISTRICT COURT'S CONCLUSION THAT COOK INLET
IS A HISTORIC BAY WAS BASED ON AN ERRONEOUS ASSESSMENT OF THE LEGAL
SIGNIFICANCE OF THE FACTS IT HAD FOUND.  /17/ THE JUDGMENT OF THE COURT
OF APPEALS, ACCORDINGLY, IS REVERSED AND THE CASE IS REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

                                  IT IS SO ORDERED. 

/1/ COOK INLET IS LARGER THAN GREAT SALT LAKE AND LAKE ONTARIO.  IT
IS ABOUT THE SAME SIZE AS LAKE ERIE.  IT DWARFS CHESAPEAKE BAY,
DELAWARE BAY, AND LONG ISLAND SOUND, ALL OF WHICH THE UNITED STATES HAS
CLAIMED AS HISTORIC BAYS. 

/2/ IT WOULD APPEAR THAT THE CASE QUALIFIES, UNDER ART. III, SEC. 2,
CL. 2, OF THE CONSTITUTION, FOR OUR ORIGINAL JURISDICTION.  UNITED
STATES V. WEST VIRGINIA, 295 U.S. 463, 470 (1935).  WE ARE NOT
ENLIGHTENED AS TO WHY THE UNITED STATES CHOSE NOT TO BRING AN ORIGINAL
ACTION IN THIS COURT. 

/3/ SECTION 6 (M) OF THE ALASKA STATEHOOD ACT OF JULY 7, 1958,
PROVIDES THAT THE SUBMERGED LANDS ACT "SHALL BE APPLICABLE TO THE STATE
OF ALASKA AND THE SAID STATE SHALL HAVE THE SAME RIGHTS AS DO EXISTING
STATES THEREUNDER."  72 STAT. 343,NOTE FOLLOWING 48 U.S.C. C. 2. 
ALL THE TERRITORY, TOGETHER WITH THE TERRITORIAL WATERS APPURTENANT
THERETO, NOW INCLUDED IN THE TERRITORY OF ALASKA."  72 STAT.  339, NOTE
FOLLOWING 48 U.S.C. C. 2. 

/4/ SECTION 3 (A) OF THE SUBMERGED LANDS ACT, 43 U.S.C. SEC. 1311
(A), PROVIDES: 

" IT IS DETERMINED AND DECLARED TO BE IN THE PUBLIC INTEREST THAT
(1) TITLE TO AND OWNERSHIP OF THE LANDS BENEATH NAVIGABLE WATERS WITHIN
THE BOUNDARIES OF THE RESPECTIVE STATES, AND THE NATURAL RESOURCES
WITHIN SUCH LANDS AND WATERS, AND (2) THE RIGHT AND POWER TO MANAGE,
ADMINISTER, LEASE, DEVELOP, AND USE THE SAID LANDS AND NATURAL
RESOURCES ALL IN ACCORDANCE WITH APPLICABLE STATE LAW BE, AND THEY ARE,
SUBJECT TO THE PROVISIONS HEREOF, RECOGNIZED, CONFIRMED, ESTABLISHED,
AND VESTED IN AND ASSIGNED TO THE RESPECTIVE STATES.  . . ." 
" THE TERM 'BOUNDARIES' INCLUDES THE SEAWARD BOUNDARIES OF A STATE . .
. AS THEY EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE UNION .
. . BUT IN NO EVENT SHALL THE TERM 'BOUNDARIES' OR THE TERM 'LANDS
BENEATH NAVIGABLE WATERS' BE INTERPRETED AS EXTENDING FROM THE COAST
LINE MORE THAN THREE GEOGRAPHICAL MILE INTO THE ATLANTIC OCEAN OR THE
PACIFIC OCEAN . . . ." 

/5/ SECTION 2 (C) OF THE ACT, 43 U.S.C. SEC. 1301 (C), READS:  "
THE TERM 'COAST LINE' MEANS THE LINE OF ORDINARY LOW WATER ALONG THAT
PORTION OF THE COAST WHICH IS IN DIRECT CONTACT WITH THE OPEN SEA AND
THE LINE MARKING THE SEAWARD LIMIT OF INLAND WATERS." 

/6/ THE FULL TEXT OF ART. 7 IS AS FOLLOWS:  "1.  THIS ARTICLE
RELATES ONLY TO BAYS THE COASTS OF WHICH BELONG TO A SINGLE STATE. 

"2. FOR THE PURPOSES OF THESE ARTICLES, A BAY IS A WELL-MARKED
INDENTATION WHOSE PENETRATION IS IN SUCH PROPORTION TO THE WIDTH OF ITS
MOUTH AS TO CONTAIN LANDLOCKED WATERS AND CONSTITUTE MORE THAN A MERE
CURVATURE OF THE COAST.  AN INDENTATION SHALL NOT, HOWEVER, BE REGARDED
AS A BAY UNLESS ITS AREA IS AS LARGE AS, OR LARGER THAN, THAT OF THE
SEMI-CIRCLE WHOSE DIAMETER IS A LINE DRAWN ACROSS THE MOUTH OF THAT
INDENTATION. 

"3. FOR THE PURPOSE OF MEASUREMENT, THE AREA OF AN INDENTATION IS
THAT LYING BETWEEN THE LOW-WATER MARKS OF ITS NATURAL ENTRANCE POINTS. 
WHERE, BECAUSE OF THE PRESENCE OF ISLANDS, AN INDENTATION HAS MORE THAN
ONE MOUTH, THE SEMI-CIRCLE SHALL BE DRAWN ON A LINE AS LONG AS THE SUM
TOTAL OF THE LENGTHS OF THE LINES ACROSS THE DIFFERENT MOUTHS.  ISLANDS
WITHIN AN INDENTATION SHALL BE INCLUDED AS IF THEY WERE PART OF THE
WATER AREAS OF THE INDENTATION. 

"4. IF THE DISTANCE BETWEEN THE LOW-WATER MARKS OF THE NATURAL
ENTRANCE POINTS OF A BAY DOES NOT EXCEED TWETY-FOUR MILES, A CLOSING
LINE MAY BE DRAWN BETWEEN THESE TWO LOW-WATER MARKS, AND THE WATERS
ENCLOSED THEREBY SHALL BE CONSIDERED AS INTERNAL WATER. 

"5. WHERE THE DISTANCE BETWEEN THE LOW-WATER MARKS OF THE NATURAL
ENTRANCE POINTS OF A BAY EXCEEDS TWETY-FOUR MILES, A STRAIGHT BASELINE
OF TWENTY-FOUR MILES SHALL BE DRAWN WITHIN THE BAY IN SUCH A MANNER AS
TO ENCLOSE THE MAXIMUM AREA OF WATER THAT IS POSSIBLE WITH A LINE OF
THAT LENGTH. 

"6. THE FOREGOING PROVISIONS SHALL NOT APPLY TO SO-CALLED 'HISTORIC'
BAYS, OR IN ANY CASE WHERE THE STRAIGHT BASELINE SYSTEM PROVIDED FOR IN
ARTICLE 4 IS APPLIED." 

/7/ BRIEF FOR RESPONDENT 1; BRIEF FOR UNITED STATES 2, 32. 

/8/ SOME DISAGREEMENT EXISTS AS TO WHETHER THERE MUST BE FORMAL
ACQUIESCENCE ON THE PART OF FOREIGN STATES, OR WHETHER THE MERE ABSENCE
OF OPPOSITION IS SUFFICIENT.  UNITED STATES V. LOUISIANA (LOUISIANA
BOUNDARY CASE) 394 U.S. 11, 23 - 24, N. 27 (1969). 

/9/ PET. FOR CERT. 25A.  IN ADDITION TO ITS REPORTED OPINION, 352
F.SUPP.  815 (ALASKA 1972), THE DISTRICT COURT MADE DETAILED WRITTEN
FINDINGS AND CONCLUSIONS THAT ARE NOT PUBLISHED.  THESE ARE REPRODUCED
IN THE PETITION FOR CERTIORARI 21A-55A.  THE REPORTED OPINION OF THE
DISTRICT COURT DID NOT DISCUSS THE EXERCISE OF SOVEREIGNTY PRIOR TO
1906, BUT THE UNREPORTED FINDINGS INDICATE THAT THE COURT RELIED ON
ASSERTIONS OF AUTHORITY DATING FROM RUSSIAN TERRITORIAL TIMES AS WELL
AS THE EARLY AMERICAN PERIOD. 

/10/ AS WITH MANY COLONIAL ENTERPRISES OF THE DAY, THE GOVERNANCE OF
ALASKA IN THE RUSSIAN PERIOD, FOR THE MOST PART, WAS EXECISED THROUGH
SEMIPRIVATE CORPORATIONS.  SEE GENERALLY H. CHEVIGNY, RUSSIAN AMERICA:
THE GREAT ALASKA VENTURE, 1741 - 1867 (1965).  THE MOST IMPORTANT OF
THESE CORPORATIONS, THE RUSSIAN-AMERICAN COMPANY, WAS CHARTERED IN
1799, SEVERAL YEARS AFTER THE INCIDENT NEAR PORT GRAHAM.  ID., AT 75
THE RECORD AND FINDINGS ARE SILENT ON THE RELATIONSHIP BETWEEN THE FUR
TRADER AND THE INTERESTS ASSERTED.  THUS, WE HAVE NO OCCASION TO
CONSIDER WHETHER THE ACTS OF A SEMIPRIVATE COLONIAL CORPORATION ARE TO
BE GIVEN THE SAME WEIGHT AS THE DIRECT ACTS OF A NATIONAL GOVERNMENT
FOR PURPOSES OF ESTABLISHING A CLAIM TO HISTORIC WATERS. 

/11/ THE CANNON SHOT RULE WAS TO THE EFFECT THAT A COASTAL STATE
POSSESSED SOVEREIGNTY OVER THE WATERS WITHIN RANGE OF CANNON SHOT FROM
ITS SHORE.  MANY MODERN SCHOLARS BELIEVE THAT THE PRESENT 3-MILE LIMIT
IS DERIVED FROM THE TRADITIONAL RANGE OF 18TH CENTURY CANNON.  KENT,
THE HISTORICAL ORIGINS OF THE THREE-MILE LIMIT, 48 AM. J. INT'L L. 537
(1954); WALKER, TERRITORIAL WATERS:  THE CANNON SHOT RULE, 22 BRIT. 
Y.B. INT'L L. 210 (1945).  THE ACTUAL RANGE OF THE CANNON FIRED BY THE
FUR TRADER IS, OF COURSE, NOW IRRELEVANT.  THE SIGNIFICANT FACT IS THAT
THE INCIDENT CAN BE VIEWED AS AN ASSERTION OF JURISDICTION ONLY OVER
THOSE WATERS IN COOK INLET THAT WERE WITHIN RANGE OF CANNON SHOT FROM
SHORE. 

/12/ FOR A DISCUSSION OF THE EVENTS SURROUNDING THE ISSUANCE AND
WITHDRAWAL OF THE UKASE, SEE CHEVIGNY, SUPRA, N. 10, AT 174 - 188. 

/13/ BY THE TREATY OF CESSION IN 1867 RUSSIA CEDED TO THE UNITED
STATES "ALL THE TERRITORY AND DOMINION NOW POSSESSED (BY RUSSIA) ON THE
CONTINENT OF AMERICA AND IN THE ADJACENT ISLANDS."  15 STAT.  539.  THE
CESSION WAS EFFECTIVELY A QUITCLAIM.  IT IS UNDISPUTED THAT THE UNITED
STATES THEREBY ACQUIRED WHATEVER DOMINION RUSSIA HAD POSSESSED
IMMEDIATELY PRIOR TO CESSION. 

/14/ IN JUNE 1892 A UNITED STATES REVENUE CUTTER, THE MOHICAN,
ENTERED COOK INLET TO ENFORCE REV. STAT. SEC. 1956.  THE MOHICAN
ARRESTED THREE AMERICAN VESSELS IN THE LOWER INLET ON CHARGES OF
VIOLATING THE STATUTE.  THE PROSECUTIONS ULTIMATELY WERE DISMISSED ON
THE GOUND THAT THE VESSELS MERELY HAD BEEN PURCHASING PELTS FROM
NATIVES WHO WERE AUTHORIZED BY SEC. 1956 TO HUNT SEA OTTER FOR
COMMERCIAL SALE.  SEE THE KODIAK, 53 F. 126 (ALASKA 1892).  IN 1893 TWO
OTHER AMERICAN VESSELS WERE STOPPED IN THE LOWER INLET BY A REVENUE
CUTTER.  SINCE THESE VESSELS, LIKE THE KODIAK, WERE CARRYING ONLY
NATIVE HUNTING PARTIES, THEY WERE ALLOWED TO PROCEED WITHOUT FURTHER
INCIDENT.  THE DISTRICT COURT MADE NO FINDINGS ABOUT THE ENFORCEMENT OF
SEC. 1956 AFTER JUNE 1893. 

/15/ THE DISTRICT COURT ACKNOWLEDGED THAT NO FOREIGN VESSELS HAD
EVER BEEN ARRESTED IN COOK INLET ON CHARGES OF VIOLATING THE ALIEN
FISHING ACT.  THE COURT SOUGHT TO EXPLAIN THIS FACT ON THE GROUND THAT
FOREIGN VESSELS ENTERED THE INLET INFREQUENTLY.  THE COURT RELIED ON
STATEMENTS OF CERTAIN FORMER WILDLIFE OFFICIALS THAT "THEY WOULD HAVE
TAKEN AFFIRMATIVE ACTION" AGAINST FOREIGN VESSELS IF THEY HAD SEEN ANY
IN THE INLET.  352 F.SUPP., AT 819 - 820.  IN THE ABSENCE OF ANY ACTUAL
ENFORCEMENT OR OFFICIAL ANNOUNCEMENT OF INTENTIONS TO ENFORCE THE ALIEN
FISHING ACT IN LOWER COOK INLET, THE PRIVATE INTENTIONS OF WITNESSES
ARE LARGELY IRRELEVANT. 

/16/ THE TESTIMONY OF JOHN T. GHARRETT, WHO WAS CALLED AS A WITNESS
BY THE STATE OF ALASKA, IS INDICATIVE OF THE PREDOMINANCE OF FISH AND
WILDLIFE CONCERNS IN THE PREPARATION OF THE GHARRETT-SCUDDER LINE: 

     ON DIRECT EXAMINATION: 

     " Q WHAT WAS YOUR ROLE IN THE PREPARATION OF THAT LINE? 

     " A MY ROLE WAS TO DECIDE WHERE THE LINE GOES. 

     " Q DID YOU HAVE ASSISTANCE FROM ANYONE? 

     " A MR. CLAY SCUTTER (SIC). 

     " Q HAS THE LINE SINCE BEEN GIVEN ANY KIND OF NAME? 

     " A OH, I DON'T KNOW SINCE.  AT THE TIME WE DREW IT, RATHER

  THAN TO SAY 'A LINE BEYOND WHICH WE PROPOSED,' ET CETERA, ET

CETERA, ET CETERA, WE CALLED IT THE GHARRETT-SCUTTER (SIC) LINE

  FOR SHORT. 

     " Q IN YOUR PREPARATION OF THE LINE WHAT CRITERIA DID YOU USE

  FOR PLACING THE LINE ON THE CHART? 

     " A WE USED TWO BASIC CRITERIA:  1) WE WANTED TO ENCOMPASS

  WITHIN THE LINE EXISTING SALMON NET FISHERIES ALONG THE COAST OF

  ALASKA, AND 2) WE WANTED IN SOME AREAS TO ALLOW FOR A MODEST,

  PERHAPS, EXPANSION OF EXISTING FISHERIES, SALMON NET FISHERIES." 

  1 APP. 292 - 293. 

     ON CROSS-EXAMINATION BY COUNSEL FOR THE UNITED STATES: 

     " Q DID THE LINES YOU DREW ENCLOSE AREAS IN WHICH YOU KNEW

  FOREIGNERS HAD PREVIOUSLY FISHED? 

" A YES. 

     " Q BY DRAWING THESE LINES DID YOU INTEND TO STOP THOSE
FISHERIES? 

     " A NO. 

     " Q WAS THE LINE YOU DREW WITH MR. SCUTTER (SIC) INTENDED TO

  REPRESENT THE OUTER LIMIT OF THE TERRITORIAL SEA? 

     " A NO. 

     " Q WAS THE LINE YOU DREW WITH MR. SCUTTER (SIC) INTENDED TO

  REPRESENT THE BASE LINE FROM WHICH THE TERRITORIAL SEA WAS TO BE

  MEASURED? 

     " A NO. 

    " Q WERE THE LINES YOU DREW WITH MR. SCUTTER (SIC) USED FOR LAW

  ENFORCEMENT PURPOSES WHILE YOU WERE IN ALASKA? 

     " A NO."  1 APP. 294. 

/17/ THE UNITED STATES HAS ARGUED THAT HISTORIC TITLE TO COOK INLET
IS DEFEATED BY SEVERAL UNITED STATES DISCLAIMERS OF SOVEREIGNTY OVER
THE WATERS OF LOWER COOK INLET.  THE COURT PREVIOUSLY HAS DISCUESSED
THE IMPORTANCE OF GOVERNMENTAL DISCLAIMERS IN WEIGHING CLAIMS TO
HISTORIC TITLE IN ACTIONS OF THIS KIND.  LOUISIANA BOUNDARY CASE, 394
U.S., AT 76 - 78; UNITED STATES V. CALIFORNIA, 381 U.S. 139, 175
(1965).  THE DISTRICT COURT REJECTED THE DISCLAIMERS ON THE GROUNDS
THAT THEY WERE ILL-ADVISED AND, PERHAPS, SELF-SERVING.  352 F.SUPP., AT
818 - 819.  INASMUCH AS WE HAVE CONCLUDED THAT NONE OF THE FACTS RELIED
UPON BY THE DISTRICT COURT SUFFICE TO ESTABLISH HISTORIC TITLE, WE HAVE
NO OCCASION TO CONSIDER WHETHER THE DISCLAIMERS OF THE UNITED STATES
COULD HAVE DEFEATED OTHERWISE SUFFICIENT FACTS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART AND MR. JUSTICE REHNQUIST WOULD AFFIRM THE
JUDGMENT, BELIEVING THAT THE FINDINGS OF FACT MADE BY THE DISTRICT
COURT AND ADOPTED BY THE COURT OF APPEALS WERE NOT CLEARLY ERRONEOUS,
AND THAT BOTH OF THOSE COURTS APPLIED THE CORRECT LEGAL CRITERIA IN
RULING THAT COOK INLET IS A HISTORIC BAY. 

DEPUTY SOLICITOR GENERAL RANDOLPH ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL JOHNSON, GERALD P. NORTON, BRUCE C. RASHKOW, AND
EDWARD F. BRADLEY. 

CHARLES K. CRANSTON AND THOMAS M. PHILLIPS ARGUED THE CAUSE AND
FILED A BRIEF FOR RESPONDENT. 
..END :









ERZNOZNIK V. CITY OF JACKSONVILLE, 422 US 205 


       ERZNOZNIK V. CITY OF JACKSONVILLE

        APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST

     DISTRICT

        NO. 73 - 1942.  ARGUED FEBRUARY 26, 1975--DECIDED JUNE 23,

           1975;

        288 SO. 2D 260, REVERSED. 


A JACKSONVILLE, FLA., ORDINANCE MAKING IT A PUBLIC NUISANCE AND A
PUNISHABLE OFFENSE FOR A DRIVE-IN MOVIE THEATER TO EXHIBIT FILMS
CONTAINING NUDITY, WHEN THE SCREEN IS VISIBLE FROM A PUBLIC STREET OR
PLACE, HELD FACIALLY INVALID AS AN INFRINGEMENT OF FIRST AMENDMENT
RIGHTS.  PP. 208 - 217. 

(A) THE ORDINANCE BY DISCRIMINATING AMONG MOVIES SOLELY ON THE BASIS
OF CONTENT HAS THE EFFECT OF DETERRING DRIVE-IN THEATERS FROM SHOWING
MOVIES CONTAINING ANY NUDITY, HOWEVER INNOCENT OR EVEN EDUCATIONAL, AND
SUCH CENSORSHIP OF THE CONTENT OF OTHERWISE PROTECTED SPEECH CANNOT BE
JUSTIFIED ON THE BASIS OF THE LIMITED PRIVACY INTEREST OF PERSONS ON
THE PUBLIC STREETS, WHO IF OFFENDED BY VIEWING THE MOVIES CAN READILY
AVERT THEIR EYES.  PP. 208 - 212. 

(B) NOR CAN THE ORDINANCE BE JUSTIFIED AS AN EXERCISE OF THE CITY'S
POLICE POWER FOR THE PROTECTION OF CHILDREN AGAINST VIEWING THE FILMS. 
EVEN ASSUMING THAT SUCH IS ITS PURPOSE, THE RESTRICTION IS BROADER THAN
PERMISSIBLE SINCE IT IS NOT DIRECTED AGAINST SEXUALLY EXPLICIT NUDITY
OR OTHERWISE LIMITED.  PP. 212 - 214. 

(C) NOR CAN THE ORDINANCE BE JUSTIFIED AS A TRAFFIC REGULATION.  IF
THIS WERE ITS PURPOSE, IT WOULD BE INVALID AS A STRIKINGLY
UNDERINCLUSIVE LEGISLATIVE CLASSIFICATION SINCE IT SINGLES OUT MOVIES
CONTAINING NUDITY FROM ALL OTHER MOVIES THAT MIGHT DISTRACT A PASSING
MOTORIST.  PP. 214 - 215. 

(D) THE POSSIBILITY OF A NARROWING CONSTRUCTION OF THE ORDINANCE
APPEARS REMOTE, PARTICULARLY WHERE APPELLEE CITY OFFERED SEVERAL
DISTINCT JUST IN ITS BROADEST TERMS.  MOREOVER, ITS DETERRENT EFFECT ON
LEGITIMATE EXPRESSION IN THE FORM OF MOVIES IS BOTH REAL AND
SUBSTANTIAL.  PP. 215 - 217. 

POWELL J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J.,
FILED A CONCURRING OPINION, POST, P. 218.  BURGER, C.J., FILED A
DISSENTING OPINION, IN WHICH REHNQUIST, J., JOINED, POST, P. 218. 
WHITE, J., FILED A DISSENTING OPINION, POST, P. 244. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A CHALLENGE TO THE FACIAL VALIDITY OF A
JACKSONVILLE, FLA., ORDINANCE THAT PROHIBITS SHOWING FILMS CONTAINING
NUDITY BY A DRIVE-IN MOVIE THEATER WHEN ITS SCREEN IS VISIBLE FROM A
PUBLIC STREET OR PLACE. 

        I 

APPELLANT, RICHARD ERZNOZNIK, IS THE MANAGER OF THE UNIVERSITY DRIVE
IN THEATRE IN JACKSONVILLE.  ON MARCH 13, 1972, HE WAS CHARGED WITH
VIOLATING SEC. 330.313 OF THE MUNICIPAL CODE FOR EXHIBITING A MOTION
PICTURE, VISIBLE FROM PUBLIC STREETS, IN WHICH "FEMALE BUTTOCKS AND
BARE BREASTS WERE SHOWN."  /1/ THE ORDINANCE, ADOPTED JANUARY 14, 1972,
PROVIDES: 

     "330.313 DRIVE-IN THEATERS, FILMS VISIBLE FROM PUBLIC STREETS

  OR PUBLIC PLACES.  IT SHALL BE UNLAWFUL AND IT IS HEREBY DECLARED

  A PUBLIC NUISANCE FOR ANY TICKET SELLER, TICKET TAKER, USHER,

MOTION PICTURE PROJECTION MACHINE OPERATOR, MANAGER, OWNER, OR

  ANY OTHER PERSON CONNECTED WITH OR EMPLOYED BY ANY DRIVE-IN

  THEATER IN THE CITY TO EXHIBIT, OR AID OR ASSIST IN EXHIBITING,

  ANY MOTION PICTURE, SLIDE, OR OTHER EXHIBIT IN WHICH THE HUMAN

  MALE OR FEMALE BARE BUTTOCKS, HUMAN FEMALE BARE BREASTS, OR HUMAN

  BARE PUBLIC AREAS ARE SHOWN, IF SUCH MOTION PICTURE, SLIDE, OR

  OTHER EXHIBIT IS VISIBLE FROM ANY PUBLIC STREET OR PUBLIC PLACE. 

     ##HC207 VIOLATION OF THIS SECTION SHALL BE PUNISHABLE AS A
CLASS COFFENSE." 

APPELLANT, WITH THE CONSENT OF THE CITY PROSECUTOR, SUCCESSFULLY
MOVED TO STAY HIS PROSECUTION SO THAT THE VALIDITY OF THE ORDINANCE
COULD BE TESTED IN A SEPARATE DECLARATORY ACTION.  IN THAT ACTION
APPELLEE, THE CITY OF JACKSONVILLE, INTRODUCED EVIDENCE SHOWING THAT
THE SCREEN OF APPELLANT'S THEATER IS VISIBLE FROM TWO ADJACENT PUBLIC
STREETS AND NEARBY CHURCH PARKING LOT.  THERE WAS ALSO TESTIMONY
INDICATING THAT PEOPLE HAD BEEN OBSERVED WATCHING FILMS WHILE SITTING
OUTSIDE THE THEATER IN PARKED CARS AND IN THE GRASS. 

THE TRIAL COURT UPHELD THE ORDINANCE AS A LEGITIMATE EXERCISE OF THE
MUNICIPALITY'S POLICE POWER, AND RULED THAT IT DID NOT INFRINGE UPON
APPELLANT'S FIRST AMENDMENT RIGHTS.  THE DISTRICT COURT OF APPEAL,
FIRST DISTRICT OF FLORIDA, AFFIRMED, 288 SO. 2D 260 (1974), RELYING
EXCLUSIVELY ON CHEMLINE, INC. V. CITY OF GRAND PRAIRIE, 364 F.2D 721
(CA5 1966), WHICH HAD SUSTAINED A SIMILAR ORDINANCE.  /2/ THE FLORIDA
SUPREME COURT DENIED CERTIORARI, THREE JUDGES DISSENTING.  294 SO. 2D
93 (1974).  WE NOTED PROBABLE JURISDICTION, /3/ 419 U.S. 822 (1974),
AND NOW REVERSE. 

APPELLEE CONCEDES THAT ITS ORDINANCE SWEEPS FAR BEYOND THE
PERMISSIBLE RESTRAINTS ON OBSCENITY, SEE MILLER V. CALIFORNIA, 413 U.S.
15 (1973), AND THUS APPLIES TO FILMS THAT ARE PROTECTED BY THE FIRST
AMENDMENT.  SEE JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495 (1952);
JENKINS V. GEORGIA, 418 U.S. 153 (1974).  NEVERTHELESS, IT MAINTAINS
THAT ANY MOVIE CONTAINING NUDITY WHICH IS VISIBLE FROM A PUBLIC PLACE
MAY BE SUPPRESSED AS A NUISANCE.  SEVERAL THEORIES ARE ADVANCED TO
JUSTIFY THIS CONTENTION. 

        A 

APPELLEE'S PRIMARY ARGUMENT IS THAT IT MAY PROTECT ITS CITIZENS
AGAINST UNWILLING EXPOSURE TO MATERIALS THAT MAY BE OFFENSIVE. 
JACKSONVILLE'S ORDINANCE, HOWEVER, DOES NOT PROTECT CITIZENS FROM ALL
MOVIES THAT MIGHT OFFEND; RATHER IT SINGLES OUT FILMS CONTAINING
NUDITY, PRESUMABLY BECAUSE THE LAWMAKERS CONSIDERED THEM ESPECIALLY
OFFENSIVE TO PASSERSBY. 

THIS COURT HAS CONSIDERED ANALOGOUS ISSUES--PITTING THE FIRST
AMENDMENT RIGHTS OF SPEAKERS AGAINST THE PRIVACY RIGHTS OF THOSE WHO
MAY BE UNWILLIGN VIEWERS OR AUDITORS--IN A VARIETY OF CONTEXTS.  SEE,
E. G., KOVACS V. COOPER, 336 U.S. 77 (1949); BREARD V. ALEXANDRIA, 341
U.S. 622, 641 - 645 (1951); COHEN V. CALIFORNIA, 403 U.S. 15 (1971);
LEHMAN V. CITY OF SHAKER HEIGHTS, 418 U.S. 298 (1974_.  SEE GENERALLY
HAIMAN, SPEECH V. PRIVACY:  IS THERE A RIGHT NOT TO BE SPOKEN TO?, 67
NW. U.L.REV.  153 (1972).  SUCH CASES DEMAND DELICATE BALANCING
BECAUSE: 

     " IN THE) SPHERE OF COLLISION BETWEEN CLAIMS OF PRIVACY AND

  THOSE OF (FREE SPEECH OR) FREE PRESS, THE INTERESTS ON BOTH SIDES

  ARE PLAINLY ROOTED IN THE TRADITIONS AND SIGNIFICANT CONCERNS OF

OUR SOCIETY."  ##HC209 COX BROADCASTING CORP. V. COHN, 420 U.S.

  469, 491 (1975). 

ALTHOUGH EACH CASE ULTIMATELY MUST DEPEND ON ITS OWN SPECIFIC FACTS,
SOME GENERAL PRINCIPLES HAVE EMERGED.  A STATE OR MUNICIPALITY MAY
PROTECT INDIVIDUAL PRIVACY BY ENACTING REASONABLE TIME, PLACE, AND
MANNER REGULATIONS APPLICABLE TO ALL SPEECH IRRESPECTIVE OF CONTENT. 
SEE KOVACS V. COOPER, SUPRA; COX V. LOUISIANA, 379 U.S. 536, 554
(1965); ADDERLEY V. FLORIDA, 385 U.S. 39 (1966).  BUT WHEN THE
GOVERNMENT, ACTING AS CENSOR, UNDERTAKES SELECTIVELY TO SHIELD THE
PUBLIC FROM SOME KINDS OF SPEECH ON THE GROUND THAT THEY ARE MORE
OFFENSIVE THAN OTHERS, THE FIRST AMENDMENT STRICTLY LIMITS ITS POWER. 
SEE, E. G., POLICE DEPT. OF CHICAGO V. MOSLEY, 408 U.S. 92 (1972);
FOWLER V. RHODE ISLAND, 345 U.S. 67 (1953); KOVACS V. COOPER, SUPRA, AT
97 (JACKSON, J., CONCURRING).  SUCH SELECTIVE RESTRICTIONS HAVE BEEN
UPHELD ONLY WHEN THE SPEAKER INTRUDES ON THE PRIVACY OF THE HOME, SEE
ROWAN V. POST OFFICE DEPT., 397 U.S. 728 (1970), /4/ OR THE DEGREE OF
CAPTIVITY MAKES IT IMRACTICAL FOR THE UNWILLING VIEWER OR AUDITOR TO
AVOID EXPOSURE.  SEE LEHMAN V. CITY OF SHAKER HEIGHTS, SUPRA.  /5/ AS
MR. JUSTICE HARLAN CAUTIONED: 

     " THE ABILITY OF GOVERNMENT, CONSONANT WITH THE CONSTITUTION,

  TO SHUT OFF DISCOURSE SOLELY TO PROTECT OTHERS FROM HEARING IT IS

  . . . DEPENDENT UPON A SHOWING THAT SUBSTANTIAL PRIVACY INTERESTS

  ARE BEING INVADED IN AN ESSENTIALLY INTOLERABLE MANNER.  ##HC210

 ANY BROADER VIEW OF THIS AUTHORITY WOULD EFFECTIVELY EMPOWER A

  MAJORITY TO SILENCE DISSIDENTS SIMPLY AS A MATTER OF PERSONAL

  PREDILECTIONS."  COHEN V. CALIFORNIA, 403 U.S., AT 21. 

THE PLAIN, IF AT TIMES DISQUIETING, TRUTH IS THAT IN OUR PLURALISTIC
SOCIETY, CONSTANTLY PROLIFERATING NEW AND INGENIOUS FORMS OF
EXPRESSION, "WE ARE INESCAPABLY CAPTIVE AUDIENCES FOR MANY PURPOSES." 
ROWAN V. POST OFFICE DEPT., SUPRA, AT 736.  MUCH THAT WE ENCOUNTER
OFFENDS OUR ESTHETIC, IF NOT OUR POLITICAL AND MORAL, SENSIBILITIES. 
NEVERTHELESS, THE CONSTITUTION DOES NOT PERMIT GOVERNMENT TO DECIDE
WHICH TYPES OF OTHERWISE PROTECTED SPEECH ARE SUFFICIENTLY OFFENSIVE TO
REQUIRE PROTECTION FOR THE UNWILLING LISTENER OR VIEWER.  RATHER,
ABSENT THE NARROW CIRCUMSTANCES DESCRIBED ABOVE, /6/ THE BURDEN
NORMALLY FALLS UPON THE VIEWER TO "AVOID FURTHER BOMBARDMENT OF (HIS)
SENSIBILITIES SIMPLY BY AVERTING (HIS) EYES."  COHEN V. CALIFORNIA,
SUPRA, AT 21.  SEE ALSO SPENCE V. WASHINGTON, 418 U.S. 405, 412
(1974). 

THE JACKSONVILLE ORDINANCE DISCRIMINATES AMONG MOVIES SOLELY ON THE
BASIS OF CONTENT.  /7/ ITS EFFECT IS TO DETER DRIVE-IN THEATERS FROM
SHOWING MOVIES CONTAINING ANY NUDITY, HOWEVER INNOCENT OR EVEN
EDUCATIONAL.  /8/ THIS DISCRIMINATION CANNOT BE JUSTIFIED AS A MEANS OF
PREVENTING SIGNIFICANT INTRUSIONS ON PRIVACY.  THE ORDINANCE SEEKS ONLY
TO KEEP THESE FILMS FROM BEING SEEN FROM PUBLIC STREETS AND PLACES
WHERE THE OFFENDED VIEWER READILY CAN AVERT HIS EYES.  IN SHORT, THE
SCREEN OF A DRIVE-IN THEATER IS NOT "SO OBTRUSIVE AS TO MAKE IT
IMPOSSIBLE FOR AN UNWILLING INDIVIDUAL TO AVOID EXPOSURE TO IT." 
REDRUP V. NEW YORK, 386 U.S. 767, 769 (1967).  THUS, WE CONCLUDE THAT
THE LIMITED PRIVACY INTEREST OF PERSONS ON THE PUBLIC STREETS CANNOT
JUSTIFY THIS CENSORSHIP OF OTHERWISE PROTECTED SPEECH ON THE BASIS OF
ITS CONTENT.  /9/

        B 

APPELLEE ALSO ATTEMPTS TO SUPPORT THE ORDINANCE AS AN EXERCISE OF
THE CITY'S UNDOUBTED POLICE POWER TO PROTECT CHILDREN.  APPELLEE
MAINTAINS THAT EVEN THOUGH IT CANNOT PROHIBIT THE DISPLAY OF FILMS
CONTAINING NUDITY TO ADULTS, THE PRESENT ORDINANCE IS A REASONABLE
MEANS OF PROTECTING MINORS FROM THIS TYPE OF VISUAL INFLUENCE. 

IT IS WELL SETTLED THAT A STATE OR MUNICIPALITY CAN ADOPT MORE
STRINGENT CONTROLS ON COMMUNICATIVE MATERIALS AVAILABLE TO YOUTHS THAN
ON THOSE AVAILABLE TO ADULTS.  SEE, E. G., GINSBERG V. NEW YORK, 390
U.S. 629 (1968).  NEVERTHELESS, MINORS ARE ENTITLED TO A SIGNIFICANT
MEASURE OF FIRST AMENDMENT PROTECTION, SEE TINKER V. DES MOINES SCHOOL
DIST., 393 U.S. 503 (1969), AND ONLY IN RELATIVELY NARROW AND WELL
DEFINED CIRCUMSTANCES MAY GOVERNMENT BAR PUBLIC DISSEMINATION OF
PROTECTED MATERIALS TO THEM.  SEE, E. G., INTERSTATE CIRCUIT, INC. V.
CITY OF DALLAS, 390 U.S. 676, 1968); RABECK V. NEW YORK, 391 U.S. 462
(1968). 

IN THIS CASE, ASSUMING THE ORDINANCE IS AIMED AT PROHIBITING YOUTHS
FROM VIEWING THE FILMS, THE RESTRICTION IS BROADER THAN PERMISSIBLE. 
THE ORDINANCE IS NOT DIRECTED AGAINST RATHER, IT SWEEPINGLY FORBIDS
DISPLAY OF ALL FILMS CONTAINING ANY UNCOVERED BUTTOCKS OR BREASTS,
IRRESPECTIVE OF CONTEXT OR PERVASIVENESS.  THUS IT WOULD BAR A FILM
CONTAINING A PICTURE OF A BABY'S BUTTOCKS, THE NUDE BODY OF A WAR
VICTIM, OR SCENES FROM A CULTURE IN WHICH NUDITY IS INDIGENOUS.  THE
ORDINANCE ALSO MIGHT PROHIBIT NEWSREEL SCENES OF THE OPINING OF AN ART
EXHIBIT AS WELL AS SHOTS OF BATHERS ON A BEACH.  CLEARLY ALL NUDITY
CANNOT BE DEEMED OBSCENE EVEN AS TO MINORS.  SEE GINSBERG V. NEW YORK,
SUPRA.  /10/ NOR CAN SUCH A BROD RESTRICTION BE JUSTIFIED BY ANY OTHER
GOVERNMENTAL INTEREST PERTAINING TO MINORS.  SPEECH THAT IS NEITHER
OBSCENE AS TO YOUTHS NOR SUBJECT TO SOME OTHER LEGITIMATE PROSCRIPTION
CANNOT BE SUPPRESSED SOLELY TO PROTECT THE YOUNG FROM IDEAS OR IMAGES
THAT A LEGISLATIVE BODY THINKS UNSUITABLE FOR THEM.  IN MOST
CIRCUMSTANCES, /11/ THE VALUES PROTECTED BY THE FIRST AMENDMENT ARE NO
LESS APPLICABLE WHEN GOVERNMENT SEEKS TO CONTROL THE FLOW OF
INFORMATION TO MINORS.  SEE TINKER V. DES MOINES SCHOOL DIST., SUPRA.
CF. WEST VIRGINIA BD. OF ED. V. BARNETTE, 319 U.S. 624 (1943).  THUS,
IF JACKSONVILLE'S ORDINANCE IS INTENDED TO REGULATE EXPRESSION
ACCESSIBLE TO MINORS IT IS OVERBROAD IN ITS PROSCRIPTION.  /12/

C 

AT ORAL ARGUMENT APPELLEE, FOR THE FIRST TIME, SOUGHT TO JUSTIFY ITS
ORDINANCE AS A TRAFFIC REGULATION.  IT CLAIMED THAT NUDITY ON A DRIVE
IN MOVIE SCREEN DISTRACTS PASSING MOTORISTS, THUS SLOWING THE FLOW OF
TRAFFIC AND INCREASING THE LIKELIHOOD OF ACCIDENTS. 

NOTHING IN THE RECORD OR IN THE TEXT OF THE ORDINANCE SUGGESTS THAT
IT IS AIMED AT TRAFFIC REGULATION.  INDEED, THE ORDINANCE APPLIES TO
MOVIE SCREENS VISIBLE FROM PUBLIC PLACES AS WELL AS PUBLIC STREETS,
THUS INDICATING THAT IT IS NOT A TRAFFIC REGULATION.  BUT EVEN IF THIS
WERE THE PURPOSE OF THE ORDINANCE, IT NONETHELESS WOULD BE INVALID.  BY
SINGLING OUT MOVIES CONTAINING EVEN THE MOST FLEETING AND INNOCENT
GLIMPSES OF NUDITY THE LEGISLATIVE CLASSIFICATION IS STRIKINGLY
UNDERINCLUSIVE.  THERE IS NO REASON TO THINK THAT A WIDE VARIETY OF
OTHER SCENES IN THE CUSTOMARY SCREEN DIET, RANGING FROM SOAP OPERA TO
VIOLENCE, WOULD BE ANY LESS DISTRACTING TO THE PASSING MOTORIST. 

THIS COURT FREQUENTLY HAS UPHELD UNDERINCLUSIVE CLASSIFICATIONS ON
THE SOUND THEORY THAT A LEGISLATURE MAY DEAL WITH ONE PART OF A PROBLEM
WITHOUT ADDRESSING ALL OF IT.  SEE, E. G., WILLIAMSON V. LEE OPTICAL
CO., 348 U.S. 483, 488 - 489 (1955).  THIS PRESUMPTION OF STATUTORY
VALIDITY, HOWEVER, HAS LESS FORCE WHEN A CLASSIFICATION TURNS ON THE
SUBJECT MATTER OF EXPRESSION.  "(ABOVE ALL ELSE, THE FIRST AMENDMENT
MEANS THAT GOVERNMENT HAS NO POWER TO RESTRICT EXPRESSION BECAUSE OF
ITS MESSAGE, ITS IDEAS, ITS SUBJECT MATTER, OR ITS CONTENT."  POLICE
DEPT. OF CHICAGO V. MOSLEY, 408 U.S., AT 95.  THUS, "UNDER THE EQUAL
PROTECTION CLAUSE, NOT TO MENTION THE FIRST AMENDMENT ITSELF," ID., AT
96, EVEN A TRAFFIC REGULATION CANNOT DISCRIMINATE ON THE BASIS OF
CONTENT UNLESS THERE ARE CLEAR REASONS FOR THE DISTINCTIONS.  SEE ALSO
COX V. LOUISIANA, 379 U.S. 559, 581 (1965) (OPINION OF BLACK, J.).  CF.
WILLIAMS V. RHODES, 393 U.S. 23 (1968); SHAPIRO V. THOMPSON, 394 U.S.
618 (1969). 

APPELLEE OFFERS NO JUSTIFICATION, NOR ARE WE AWARE OF ANY, FOR
DISTINGUISHING MOVIES CONTAINING NUDITY FROM ALL OTHER MOVIES IN A
REGULATION DESIGNED TO PROTECT TRAFFIC.  ABSENT SUCH A JUSTIFICATION,
THE ORDINANCE CANNOT BE SALVAGED BY THIS RATIONALE.  /13/

        III 

EVEN THOUGH NONE OF THE REASONS ADVANCED BY APPELLEE WILL SUSTAIN
THE JACKSONVILLE ORDINANCE, IT REMAINS FOR US TO DECIDE WHETHER THE
ORDINANCE SHOULD BE INVALIDATED ON ITS FACE.  THIS COURT HAS LONG
RECOGNIZED THAT A DEMONSTRABLY OVERBROAD STATUTE OR ORDINANCE MAY DETER
THE LEGITIMATE EXECISE OF FIRST AMENDMENT RIGHTS.  NONETHELESS, WHEN
CONSIDERING A FACIAL CHALLENGE IT IS NECESSARY TO PROCEED WITH CAUTION
AND RESTRAINT, AN INVALIDATION MAY RESULT IN UNNECESSARY INTERFERENCE
WITH A STATE REGULATORY PROGRAM.  IN ACCOMMODATING THESE COMPETING
INTERESTS THE COURT HAS HELD THAT A STATE STATUTE SHOULD NOT BE DEEMED
FACIALLY INVALID UNLESS IT IS NOT READILY SUBJECT TO A NARROWING
CONSTRUCTION BY THE STATE COURTS, SEE DOMBROWSKI V. PFISTER, 380 U.S.
479, 497 (1965), AND ITS DETERRENT EFFECT ON LEGITIMATE EXPRESSION IS
BOTH REAL AND SUBSTANTIAL.  SEE BROADRICK V. OKLAHOMA, 413 U.S. 601,
612 - 615 (1973).  SEE GENERALLY NOTE, THE FIRST AMENDMENT OVERBREADTH
DOCTRINE, 83 HARV. L. REV. 844 (1970). 

IN THE PRESENT CASE THE POSSIBILITY OF A LIMITING CONSTRUCTION
APPEARS REMOTE.  APPELLEE EXPLICITLY JOINED IN THIS TEST OF THE FACIAL
VALIDITY OF ITS ORDINANCE BY AGREEING TO STAY APPELLANT'S PROSECUTION. 
/14/ MOREOVER, THE ORDINANCE BY ITS PLAIN TERMS IS NOT EASILY
SUSCEPTIBLE OF A NARROWING CONSTRUCTION.  /15/ INDEED, WHEN THE STATE
COURTS WERE PRESENTED WITH THIS OVERBREADTH CHALLENGE THEY MADE NO
EFFORT TO RESTRICT ITS APPLICATION.  COMPARE COATES V. OF CINCINNATI,
402 U.S. 611, 612 - 613 (1971), AND BRANDENBURG V. OHIO, 395 U.S. 444,
448 - 449 (1969), WITH COX V. NEW HAMPSHIRE, 312 U.S. 569, 575 - 576
(1941), AND CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572 - 573
(1942).  IN THESE CIRCUMSTANCES, PARTICULARLY WHERE AS HERE APPELLEE
OFFERS SEVERAL DISTINCT JUSTIFICATIONS FOR THE ORDINANCE IN ITS
BROADEST TERMS, THERE IS NO REASON TO ASSUME THAT THE ORDINANCE CAN OR
WILL BE DECISIVELY NARROWED.  SEE GOODING V. WILSON, 405 U.S. 518, 520
527 (1972).  CF. GRAYNED V. CITY OF ROCKFORD, 408 U.S. 104, 111 - 112
(1972); TIME, INC. V. HILL, 385 U.S. 374, 397 (1967). 

MOREOVER, THE DETERRENT EFFECT OF THIS ORDINANCE IS BOTH REAL AND
SUBSTANTIAL.  SINCE IT APPLIES SPECIFICALLY TO ALL PERSONS EMPLOYED BY
OR CONNECTED WITH DRIVE-IN THEATERS, THE OWNERS AND OPERATORS OF THESE
THEATERS ARE FACED WITH AN UNWELCOME CHOICE: TO AVOID PROSECUTION OF
THEMSELVES AND THEIR EMPLOYEES THEY MUST EITHER RESTRICT THEIR MOVIE
OFFERINGS OR CONSTRUCT ADEQUATE PROTECTIVE FENCING WHICH MAY BE
EXTREMELY EXPENSIVE OR EVEN PHYSICALLY IMPRACTICABLE.  /16/ CF. LAKE
CARRIERS' ASSN. V. MAC MULLAN, 406 U.S.498, 513 (1972) (POWELL, J.,
DISSENTING). 

   IV 

IN CONCLUDING THAT THIS ORDINANCE IS INVALID WE DO NOT DEPRECATE THE
LEGITIMATE INTERESTS BY THE CITY OF JACKSONVILLE.  WE HOLD ONLY THAT
THE PRESENT ORDINANCE DOES NOT SATISFY THE RIGOROUS CONSTITUTIONAL
STANDARDS THAT APPLY WHEN GOVERNMENT ATTEMPTS TO REGULATE EXPRESSION. 
WHERE FIRST AMENDMENT FREEDOMS ARE AT STAKE WE HAVE REPEATEDLY
EMPHASIZED THAT PRECISION OF DRAFTING AND CLARITY OF PURPOSE ARE
ESSENTIAL.  THESE PREREQUISITES ARE ABSENT HERE.  ACCORDINGLY THE
JUDGMENT BELOW IS REVERSED. 

/1/ THE MOVIE, " CLASS OF '74," HAD BEEN RATED " R" BY THE MOTION
PICTURE ASSOCIATION OF AMERICA.  AN " R" RATING INDICATES THAT YOUTHS
MAY BE ADMITTED ONLY WHEN ACCOMPANIED BY A PARENT OR GUARDIAN.  SEE
GENERALLY FRIEDMAN, THE MOTION PICTURE RATING SYSTEM OF 1968:  A
CONSTITUTIONAL ANALYSIS OF SELF-REGULATION BY THE FILM INDUSTRY, 73
COL. L. REV. 185 (1973).  ALTHOUGH THERE IS NOTHING IN THE RECORD
REGARDING THE CONTENT OF THE MOVIE, THE PARTIES AGREE THAT IT INCLUDES
PICTURES OF UNCOVERED FEMALE BREASTS AND BUTTOCKS. 

/2/ THE ONLY OTHER UNITED STATES COURT OF APPEALS TO CONSIDER THIS
QUESTION REACHED A CONTRARY RESULT.  SEE CINECOM THEATERS MIDWEST
STATES, INC. V. CITY OF FORT WAYNE, 473 F.2D 1297 (CA7 1973). 

/3/ A LOCAL ORDINANCE IS DEEMED A STATE STATUTE FOR PURPOSES OF
INVOKING THIS COURT'S JURISDICTION UNDER 28 U.S.C. SEC. 1257 (2).  SEE
KING MFG. CO. V. CITY COUNCIL OF AUGUSTA, 277 U.S. 100 (1928). 

/4/ ROWAN INVOLVED A FEDERAL STATUTE THAT PERMITS A PERSON RECEIVING
A "PANDERING ADVERTISEMENT" WHICH HE BELIEVES TO BE "EROTICALLY
AROUSING OR SEXUALLY PROVOCATIVE" TO INSTRUCT THE POSTMASTER GENERAL TO
INFORM THE SENDER THAT SUCH MAIL IS NOT TO BE SENT IN THE FUTURE.  THE
COURT UPHELD THE STATUTE, EMPHASIZING THAT INDIVIDUAL PRIVACY IS
ENTITLED TO GREATER PROTECTION IN THE HOME THAN ON THE STREETS AND
NOTING THAT "THE RIGHT OF EVERY PERSON 'TO BE LET ALINE' MUST BE PLACED
IN THE SCALES WITH THE RIGHT OF OTHER TO COMMUNICATE."  SEE 397 U.S.,
AT 736 - 738. 

/5/ IN LEHMAN THE COURT SUSTAINED A MUNICIPALITY'S POLICY OF BARRING
POLITICAL ADVERTISEMENTS WHILE PERMITTING NONPOLITICAL ADVERTISEMENTS
ON CITY BUSES.  THE ISSUE WAS WHETHER THE CITY HAD CREATED A "PUBLIC
FORUM" AND THEREBY OBLIGATED ITSELF TO ACCEPT ALL ADVERTISING.  WHILE
CONCLUDING THAT NO PUBLIC FORUM HAD ESTABLISHED, BOTH THE PLURALITY AND
COUCURRING OPINIONS RECOGNIZED THAT THE DEGREE OF CAPTIVITY AND THE
RESULTANT INTRUSION ON PRIVACY IS SINGIFICANTLY GREATER FOR A PASSENGER
ON A BUS THAN FOR A PERSON ON THE STREET.  SEE 418 U.S. 298, 302 - 304
(OPINION OF BLACKMUN, J.), AND ID., AT 306 - 308 (DOUGLAS, J.,
CONCURRING).  SEE ALSO PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451,
467 (1952) (DOUGLAS, J., DISSENTING). 

/6/ IT HAS ALSO BEEN SUGGESTED THAT GOVERNMENT MAY PROSCRIBE, BY A
PROPERLY FRAMED LAW, "THE WILLFUL USE OF SCURRILOUS LANGUAGE CALCULATED
TO OFFEND THE SENSIBILITIES OF AN UNWILLING AUDIENCE."  ROSENFELD V.
NEW JERSEY, 408 U.S. 901, 905 (1972) (POWELL, J., DISSENTING).  CF.
GINZBURG V. UNITED STATES, 383 U.S. 463 (1966).  IN SUCH CASES THE
SPEAKER MAY SEEK TO "FORCE PUBLIC CONFRONTATION WITH THE POTENTIALLY
OFFENSIVE ASPECTS OF THE WORK."  ID., AT 470.  IT MAY NOT BE THE
CONTENT OF THE SPEECH, AS MUCH AS THE DELIBERATE "VERBAL (OR VISUAL)
ASSAULT,"  ROSENFELD, SUPRA, AT 906, THAT JUSTIFIES PROSCIPTION.  SEE
REDRUP V. NEW YORK, 386 U.S. 767, 769 (1967).  IN THE PRESENT CASE,
HOWEVER, APPELLANT IS NOT TRYING TO REACH, MUCH LESS SHOCK, UNWILLING
VIEWERS.  APPELLANT MANAGES A COMMERCIAL ENTERPRISE WHICH DEPENDS FOR
ITS SUCCESS ON PAYING CUSTOMERS, NOT ON FREELOADING PASSERSBY. 
PRESUMABLY, WHERE ECONOMICALLY FEASIBLE, THE SCREEN OF A DRIVE-IN
THEATER WILL BE SHIELDED FROM THOSE WHO DO NOT PAY. 

/7/ SCENES OF NUDITY IN A MOVIE, LIKE PICTURES OF NUDE PERSONS IN A
BOOK, MUST BE CONSIDERED AS A PART OF THE WHOLE WORK.  SEE MILLER V.
CALIFORNIA, 413 U.S. 15, 24 (1973); KOIS V. WISCONSIN, 408 U.S. 229
(1972).  IN THIS RESPECT SUCH NUDITY IS DISTINGUISHABLE FROM THE KIND
OF PUBLIC NUDITY TRADITIONALLY SUBJECT TO INDECENT-EXPOSURE LAWS.  SEE
ROTH V. UNITED STATES, 354 U.S. 476, 512 (1957) (DOUGLAS, J.,
DISSENTING) (" NO ONE WOULD SUGGEST THAT THE FIRST AMENDMENT PERMITS
NUDITY IN PUBLIC PLACES").  CF. UNITED STATES V. O' BRIEN, 391 U.S. 367
(1968). 

THE CHIEF JUSTICE'S DISSENT, IN RESPONSE TO THIS POINT, STATES THAT
"(UNLIKE PERSONS READING BOOKS, PASSERSBY CANNOT CONSIDER FRAGMENTS OF
DRIVE-IN MOVIES AS A PART OF THE 'WHOLE WORK' FOR THE SIMPLE REASON
THAT THEY SEE BUT DO NOT HEAR THE PERFORMANCE . . . ."  POST, AT 222
(EMPHASIS IN ORIGINAL).  AT ISSUE HERE, HOWEVER, IS NOT THE VIEWING
RIGHTS OF UNWILLING VIEWERS BUT RATHER THE RIGHTS OF THOSE WHO OPERATE
DRIVE-IN THEATERS AND THE PUBLIC THAT ATTENDS THESE ESTABLISHMENTS. 
THE EFFECT OF THE JACKSONVILLE ORDINANCE IS TO INCREASE THE COST OF
SHOWING FILMS CONTAINING NUDITY.  SEE N. 8, INFRA.  IN CERTAIN
CIRCUMSTANCES THEATERS WILL AVOID SHOWING THESE MOVIES RATHER THAN
INCUR THE ADDITIONAL COSTS.  AS A RESULT PERSONS WHO WANT TO SEE SUCH
FILMS AT DRIVE-INS WILL BE UNABLE TO DO SO.  IT IS IN THIS REGARD THAT
A MOTION PICTURE MUST BE CONSIDERED AS A WHOLE, AND NOT AS ISOLATED
FRAGMENTS OR SCENES OF NUDITY. 

/8/ SUCH A DETERRENT, ALTHOUGH IT MIGHT NOT RESULT IN TOTAL
SUPPRESSION OF THESE MOVIES, IS A RESTRAINT ON FREE EXPRESSION.  SEE
SPEISER V. RANDALL, 357 U.S. 513, 518 - 519 (1958).  THE RECORD DOES
NOT INDICATE HOW MUCH IT WOULD COST TO BLOCK PUBLIC VIEW OF APPELLANT'S
THEATER.  SUCH COSTS GENERALLY WILL VARY WITH CIRCUMSTANCES.  IN ONE
CASE THE EXPENSE WAS ESTIMATED AT APPROXIMATELY A QUARTER MILLION
DOLLARS.  SEE OLYMPIC DRIVE-IN THEATRE, INC. V. CITY OF PAGEDALE, 441
S.W. 2D 5, 8 (MO. 1969). 

/9/ WE ARE NOT CONCERNED IN THIS CASE WITH A PROPERLY DRAWN ZONING
ORDINANCE RESTRICTING THE LOCATION OF DRIVE-IN THEATERS OR WITH A
NONDISCRIMINATORY NUISANCE ORDINANCE DESIGNED TO PROTECT THE PRIVACY OF
PERSONS IN THEIR HOMES FROM THE VISUAL AND AUDIBLE INTRUSIONS OF SUCH
THEATERS. 

/10/ IN GINSBERG THE COURT ADOPTED A VARIATION OF THE ADULT
OBSCENITY STANDARDS ENUNCIATED IN ROTH V. UNITED STATES, 354 U.S. 476
(1957), AND MEMOIRS V. MASSACHUSETTS, 383 U.S. 413 (1966) (PLURALITY
OPINION).  IN MILLER V. CALIFORNIA , SUPRA, WE ABANDONED THE ROTH
MEMOIRS TEST FOR JUDGING OBSCENITY WITH RESPECT TO ADULTS.  WE HAVE NOT
HAD OCCASION TO DECIDE WHAT EFFECT MILLER WILL HAVE ON THE GINSBERG
FORMULATION.  IT IS CLEAR, HOWEVER, THAT UNDER ANY TEST OF OBSCENITY AS
TO MINORS NOT ALL NUDITY WOULD BE PROSCRIBED.  RATHER, TO BE OBSCENE
"SUCH EXPRESSION MUST BE, IN SOME SIGNIFICANT WAY, EROTIC."  COHEN V.
CALIFORNIA, 403 U.S. 15, 20 (1971).  SEE PARIS ADULT THEATRE I V.
SLATON, 413 U.S. 49, 106 - 107 (1973) (BRENNAN, J., DISSENTING). 

/11/ THE FIRST AMENDMENT RIGHTS OF MINORS ARE NOT "CO-EXTENSIVE WITH
THOSE OF ADULTS."  TINKER V. DES MOINES SCHOOL DIST., 393 U.S. 503, 515
(1969) (STEWART, J., CONCURRING).  "( STATE MAY PERMISSIBLY DETERMINE
THAT, AT LEAST IN SOME PRECISELY DELINEATED AREASK A CHILD--  LIKE
SOMEONE IN A CAPTIVE AUDIENCE--IS NOT POSSESSED OF THAT JULL CAPACITY
FOR INDIVIDUAL CHOICE WHICH IS THE PRESUPPOSITION OF FIRST AMENDMENT
GUARANTEES."  GINSBERG V. NEW YORK, 390 U.S. 629, 649 - 650 (1968)
(STEWART, J., CONCURRING).  IN ASSESSING WHETHER A MINOR HAS THE
REQUISITE CAPACITY FOR INDIVIDUAL CHOICE THE AGE OF THE MINOR IS A
SIGNIFICANT FACTOR.  SEE ROWAN V. POST OFFICE DEPT., 397 U.S., AT 741
(BRENNAN, J., CONCURRING). 

/12/ SEE PART III, INFRA. 

/13/ THIS IS NOT TO SAY THAT A NARROWLY DRAWN NONDISCRIMINATORY
TRAFFIC REGULATION REQUIRING SCREENING OF DRIVE-IN MOVIE THEATERS FROM
THE VIEW OF MOTORISTS WOULD NOT BE A REASONABLE EXERCISE OF POLICE
POWER.  SEE POLICE DEPT. OF CHICAGO V. MOSLEY, 408 U.S. 92, 98 (1972),
AND CASES CITED. 

/14/ IN THIS RESPECT THE PRESENT CASE ARISES IN A POSTURE THAT
DIFFERS FROM MOST CHALLENGES TO A STATUTE OR ORDINANCE CONSIDERED BY
THIS COURT.  TYPICALLY IN SUCH CASES THE ISSUE ARISES IN A CONTEXT
WHERE THE STATUTE OR ORDINANCE HAS BEEN APPLIED TO ALLEGEDLY
UNPROTECTED ACTIVITY.  THUS, WE ARE ABLE TO CONSIDER THE
CONSTITUTIONALITY OF THE STATUTE "AS APPLIED" AS WELL AS "ON ITS
FACE." 

/15/ THE ONLY NARROWING CONSTRUCTION WHICH OCCURS TO US WOULD BE TO
LIMIT THE ORDINANCE TO MOVIES THAT ARE OBSCENE AS TO MINORS.  NEITHER
APPELLEE NOR THE FLORIDA COURTS HAVE SUGGESTED SUCH A LIMITATION,
PERHAPS BECAUSE A REWRITING OF THE ORDINANCE WOULD BE NECESSARY TO
REACH THAT RESULT. 

/16/ IN THIS CASE APPELLANT HIMSELF IS A THEATER MANAGER.  HENCE THE
STATUTE'S DETERRENT EFFECT ACTS UPON HIM PERSONALLY; HE IS NOT SEEKING
TO RAISE THE HYPOTHETICAL RIGHTS OF OTHER.  SEE BREARD V. ALEXANDRIA,
341 U.S. 622, 641 (1951). 

MR. JUSTICE DOUGLAS, CONCURRING. 

I JOIN WHOLEHEARTEDLY IN THE COURT'S VIEW THAT THE ORDINANCE IN
ISSUE HERE IS FATALLY OVERINCLUSIVE IN SOME RESPECTS AND FATALLY
UNDERINCLUSIVE IN OTHERS.  I DO NOT DOUBT THAT UNDER PROPER
CIRCUMSTANCES, A NARROWLY DRAWN ORDINANCE COULD BE UTILIZED WITHIN
CONSTITUTIONAL BOUNDARIES TO PROTECT THE INTERESTS OF CAPTIVE AUDIENCES
/1/ OR TO PROMOTE HIGHWAY SAFETY.  IN THESE DAYS OF HEAVY TRAFFIC, IT
IS REASONABLE TO ATTEMPT TO REMOVE ALL DISTRACTIONS THAT MIGHT INCREASE
ACCIDENTS.  THESE LEGITIMATE INTERESTS CANNOT, HOWEVER, JUSTIFY
ATTEMPTS TO DISCRIMINATE AMONG MOVIES ON THE BASIS OF THEIR CONTENT--A
"PURE" MOVIE IS APT TO BE JUST AS DISTRACTING TO DRIVES AS AN "IMPURE"
ONE, AND TO BE JUST AS INTRUSIVE UPON THE PRIVACY OF AN UNWILLING BUT
CAPTIVE AUDIENCE.  ANY ORDINANCE WHICH REGULATES MOVIES ON THE BASIS OF
CONTENT, WHETHER BY AN OBSCENITY STANDARD /2/ OR BY SOME OTHER
CRITERION, IMPERMISSIBLY INTRUDES UPON THE FREE SPEECH RIGHTS
GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS. 

/1/ SEE LEHMAN V. CITY OF SHAKER HEIGHTS, 418 U.S. 298, 305 (1974)
(DOUGLAS, J., CONCURRING IN JUDGMENT); PUBLIC UTILITIES COMM'N V.
POLLAK, 343 U.S. 451, 467 (1952) (DOUGLAS, J., DISSENTING). 

/2/ I ASHERE TO MY VIEW THAT ANY STATE OR FEDERAL REGULATION OF
OBSCENITY IS PROHIBITED BY THE CONSTITUTION.  ROTH V. UNITED STATES,
354 U.S. 476, 508 - 514 (1957) (DISSENTING); MILLER V. CALIFORNIA, 413
U.S. 15, 42 - 47 (1973) (DISSENTING); PARIS ADULT THEATRE I V. SLATON,
413 U.S. 49, 70 - 73 (1973) (DISSENTING). 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

ALTHOUGH THE COURT PAYS LIP SERVICE TO THE PROPOSITION THAT "EACH
CASE ULTIMATELY MUST DEPEND ON ITS OWN SPECIFIC FACTS," ANTE, AT 209,
IT STRIKES DOWN JACKSONVILLE CITY CODE SEC. 330.313 BY A MECHANICAL
APPLICATION OF "GENERAL PRINCIPLES" DISTILLED FROM CASES HAVING LITTLE
TO DO WITH EITHER THIS CASE OR EACH OTHER.  BECAUSE I CAN ACCEPT
NEITHER THAT APPROACH NOR ITS RESULT, I DISSENT. 

THE COURT'S ANALYSIS SEEMS TO BEGIN AND END WITH THE SWEEPING
PROPOSITION THAT, REGARDLESS OF THE CIRCUMSTANCES, GOVERNMENT MAY NOT
REGULATE ANY FORM OF "COMMUNICATIVE" ACTIVITY ON THE BASIS OF ITS
CONTENT.  ABSENT CERTAIN "SPECIAL CIRCUMSTANCES," WE ARE TOLD, THE
BURDEN FALLS UPON THE PUBLIC TO IGNORE OFFENSIVE MATERIALS RATHER THAN
UPON THEIR PURVERYOR TO TAKE STEPS TO SHIELD THEM FROM PUBLIC VIEW.  IN
FOUR SHORT SENTENCES WITHOUT REASONED SUPPORT, ANTE, AT 211 - 212, THE
COURT CONCLUDES THAT JACKSONVILLE'S ORDINANCE DOES NOT PASS MUSTER
UNDER ITS TESTS, AND THEREFORE STRIKES IT DOWN. 

NONE OF THE CASES UPON WHICH THE COURT RELIES REMOTELY IMPLIES THAT
THE COURT EVER INTENDED TO ESTABLISH INEXORABLE LIMITATIONS UPON STATE
POWER IN THIS AREA.  MANY CASES UPHELD THE REGULATION OF COMMUNICATIVE
ACTIVITY AND DID NOT PURPORT TO DEFINE THE LIMITS OF THE POWER TO DO
SO.  E. G., LWHMAN V. CITY OF SHAKER HEIGHTS, 418 U.S. 298 (1974);
ROWAN V. POST OFFICE DEPT., 397 U.S. 728 (1970); BREARD V. ALEXANDRIA,
341 U.S. 622 (1951); KOVACS V. COOPER, 336 U.S. 77 (1949).  OTHER CASES
RELIED UPON BY THE COURT WERE EITHER EXPRESSLY OR IMPLIEDLY DECIDED
UPON EQUL PROTECTION GROUNDS AND, ALTHOUGH RECOGNIZING THAT FIRST
AMENDMENT INTERESTS WERE INVOLVED, TURNED UPON "THE CRUCIAL QUESTION .
. . WHETHER THERE IS AN APPROPRIATE GOVERNMENTAL INTEREST SUITABLY
FURTHERED BY THE DIFFERENTIAL TREATMENT."  POLICE DEPT. OF CHICAGO V.
MOSLEY, 408 U.S. 92, 95 (1972).  SEE ALSO FOWLER V. RHODE ISLAND, 345
U.S. 67 (1953).  SUCH A STANDARD NECESSARILY REQUIRES PARTICULARIZED
REVIEW.  FINALLY, YET OTHER OF THE CASES CITED BY THE COURT WERE
DECIDED ON VAGUENESS AND OVERBREADTH.  E.G., COX V. LOUISIANA, 379 U.S.
536 (1965).  AGAIN, APPLICATION OF THESE DOCTRINES REQUIRES SCRUTINY OF
THE SPECIFIC STATUTE AND ACTIVITY INVOLVED RATHER THAN RELIANCE UPON
GENERALIZATIONS.  SEE, E.G., ID., AT 544 - 558.     IN SHORT, NOTHING
IN THE COURT'S PRIOR DECISIONS JUSTIFIES DISREGARD OF THE ADMONITION
THAT "THE NATURE OF THE FORUM AND THE CONFLICTING INTERESTS INVOLVED
HAVE REMAINED IMPORTANT IN DETERMINING THE DEGREE OF PROTECTION
AFFORDED BY THE (FIRST) AMENDMENT TO THE SPEECH IN QUESTION."  LEHMAN
V. CITY OF SHAKER HEIGHTS, SUPRA, AT 302 - 303 (PLURALITY OPINION OF
BLACKMUN, J.).  RATHER, IN APPLYING THIS PRINCIPLE IN CONTEXTS SIMILAR
TO THE INSTANT CASE, MEMBERS OF THIS COURT HAVE CAUTIONED THAT EVERY
MEDIUM OF COMMUNICATION "IS A LAW ITSELF," KOVACS V. COOPER, SUPRA, AT
97 (JACKSON, J., CONCURRING), AND THAT THE "TYRANNY OF ABSOLUTES"
SHOULD NOT BE RELIED UPON "TO MEET THE PROBLEMS GENERATED BY THE NEED
TO ACCOMMODATE THE DIVERSE INTERESTS AFFECTED BY THE MOTION PICTURES IN
COMPACT MODERN COMMUNITIES."  JOSEPH BURSTYN, INC. V. WILSON, 343 U.S.
495, 518 (1952) (FRANKFURTER, J., CONCURRING). 

A CAREFUL CONSIDERATION OF THE DIVERSE INTERESTS INVOLVED IN THIS
CASE ILLUSTRATES, FOR ME, THE INADEQUACY OF THE COURT'S RIGIDLY
SIMPLISTIC APPROACH.  IN THE FIRST PLACE, THE CONCLUSION THAT ONLY A
LIMITED INTEREST OF PERSONS ON THE PUBLIC STREETS IS AT STAKE HERE CAN
BE SUPPORTED ONLY IF ONE COMPLETELY IGNORES THE UNIQUE VISUAL MEDIUM TO
WHICH THE JACKSONVILLE ORDINANCE IS DIRECTED.  WHATEVER VALIDITY THE
NOTION THAT PASSERSBY MAY PROTECT THEIR SENSIBILITIES BY AVERTING THEIR
EYES MAY HAVE WHEN APPLIED TO WORDS PRINTED ON AN INDIVIDUAL'S JACKET,
SEE COHEN V. CALIFORNIA, 403 U.S. 15 (1971), OR A FLAG HUNG FROM A
SECOND-FLOOR APARTMENT WINDOW, SEE SPENCE V. WASHINGTON, 418 U.S. 405
(1974), IT DISTORTS REALITY TO APPLY THAT NOTION TO THE OUTSIZE SCREEN
OF A DRIVE-IN MOVIE THEATER.  SUCH SCREENS ARE INVARIABLY HUGE; /1/
INDEED, PHOTOGRAPHS INCLUDED IN THE RECORD OF THIS CASE SHOW THAT THE
SCREEN OF PETITIONER'S THEATER DOMINATED THE VIEW FROM PUBLIC PLACES
INCLUDING NEARBY RESIDENCES AND ADJACENT HIGHWAYS.  MOREOVER, WHEN
FILMS ARE PROJECTED ON SUCH SCREENS THE COMBINATION OF COLOR AND
ANIMATION AGAINST A NECESSARILY DARK BACKGROUND IS DESIGNED TO, AND
RESULTS IN, ATTRACTING AND HOLDING THE ATTENTION OF ALL OBSERVERS.  SEE
NOTE, MOTION PICTURES AND THE FIRST AMENDMENT, 60 YALE L.J. 696, 707 -
708 (1951).  SIMILAR CONSIDERATIONS LED MR. JUSTICE BRANDEIS, WRITING
FOR THE COURT IN PACKER CORP. V. UTAH, 285 U.S. 105 (1932), TO CONCLUDE
THAT THERE IS A PUBLIC INTEREST IN REGULATING BILLBOARD DISPLAYS WHICH
MAY NOT APPLY TO OTHER FORMS OF ADVERTISING: 

"' ADVERTISEMENTS OF THIS SORT ARE CONSTANTLY BEFORE THE EYES OF
OBSERVERS ON THE STREETS AND IN STREET CARS TO BE SEEN WITHOUT THE
EXERCISE OF CHOICE OR VOLITION ON THEIR PART.  OTHER FORMS OF
ADVERTISING ARE ORDINARILY SEEN AS A MATTER OF CHOICE ON THE PART OF
THE OBSERVER.  THE YOUNG PEOPLE AS WELL AS THE ADULTS HAVE THE MESSAGE
OF THE BILLBOARD THRUST UPON THEM BY ALL THE ARTS AND DEVICES THAT
SKILL CAN PRODUCE.  IN THE CASE OF NEWSPAPERS AND MAGAZINES, THERE MUST
BE SOME SEEKING BY THE ONE WHO IS TO SEE AND READ THE ADVERTISEMENT. 
THE RADIO CAN BE TURNED OFF, BUT NOT SO THE BILLBOARD OR STREET CAR
PLACARD.  THESE DISTINCTIONS CLEARLY PLACE THIS KIND OF ADVERTISMENT IN
A POSITION TO BE CLASSIFIED SO THAT REGULATIONS OR PROHIBITIONS MAY BE
IMPOSED UPON ALL WITHIN THE CLASS.'"  ID., AT 110.  ##HC222 

SO HERE, THE SCREEN OF A DRIVE-IN MOVIE THEATER IS A UNIQUE TYPE OF
EYE-CATCHING DISPLAY THAT CAN BE HIGHLY INTRUSIVE AND DISTRACTING. 
PUBLIC AUTHORITIES HAVE A LEGITIMATE INTEREST IN REGULATING SUCH
DISPLAYS UNDER THE POLICE POWER; FOR EXAMPLE, EVEN THOUGH TRAFFIC
SAFETY MAY NOT HAVE BEEN ONLY TARGET OF THE ORDINANCE IN ISSUE HERE, I
THINK IT NOT UNREASONABLE FOR LAWMAKERS TO BELIEVE THAT PUBLIC NUDITY
ON A GIANT SCREEN, VISIBLE VISIBLE AT NIGHT TO HUNDREDS OF DRIVERS OF
AUTOMOBILES, MAY HAVE A TENDENCY TO DIVERT ATTENTION FROM THEIR TASK
AND CAUSE ACCIDENTS. 

NO MORE DEFENSIBLE IS THE COURT'S CONCLUSION THAT JACKSONVILLE'S
ORDINANCE IS DEFECTIVE BECAUSE IT REGULATES ONLY NUDITY.  THE
SIGNIFICANCE OF THIS FACT IS EXPLAINED ONLY IN A FOOTNOTE: 

     " SCENES OF NUDITY IN A MOVIE, LIKE PICTURES OF NUDE PERSONS
IN

  A BOOK, MUST BE CONSIDERED AS A PART OF THE WHOLE WORK.  . . . IN

  THIS RESPECT SUCH NUDITY IS DISTINGUISHABLE FROM THE KIND OF

  PUBLIC NUDITY TRADITIONALLY SUBJECT TO INDECENT-EXPOSURE LAWS." 

  ANTE, AT 211 N. 7. 

BOTH THE ANALOGY AND THE DISTINCTION ARE FLAWAED.  UNLIKE PERSONS
READING BOOKS, PASSERSBY CANNOT CONSIDER FRAGMENTS OF DRIVE-IN MOVIES
AS A PART OF THE "WHOLE WORK" FOR THE SIMPLE REASON THAT THEY SEE BUT
DO NOT HEAR THE PERFORMANCE, CF. NOTE, SUPRA, 60 YALE L.J., AT 707 AND
N. 27; NOR DO DRIVERS AND PASSENGERS ON NEARBY HIGHWAYS SEE THE WHOLE
OF THE VISUAL DISPLAY.  THE COMMUNICATIVE VALUE OF SUCH FLEETING
EXPOSURE FALLS SOMEWHERE IN THE RANGE OF SLIGHT TO NONEXISTENT. 
MOREOVER, THOSE PERSONS WHO LEGITIMATELY DESIRE TO CONSIDER THE "WORK
AS A WHOLE" ARE NOT FORECLOSED FROM DOING SO.  THE RECORD SHOWS THAT
THE FILM FROM WHICH APPELLANT'S PROSECUTION AROSE WAS EXHIBITED IN
SEVERAL INDOOR THEATERS IN THE JACKSONVILLE AREA.  AND THE OWNER OF A
DRIVE-IN MOVIE THEATER IS NOT PREVENTED FROM EXHIBITING NONOBSCENE
FILMS INVOLVING NUDITY SO LONG AS HE EFFECTIVELY SHIELDS THE SCREEN
FROM PUBLIC VIEW.  THUS, REGARDLESS OF WHETHER THE ORDINANCE INVOLVED
HERE CAN BE LOOSELY DESCRIBED AS REGULATING THE CONTENT OF A CERTAIN
TYPE OF DISPLAY, IT IS NOT A RESTRICTION OF ANY "MESSAGE."  CF. POLICE
DEPT. OF CHICAGO V. MOSLEY, SUPRA, AT 95 - 96; GRAYNED V. CITY OF
ROCKFORD, 408 U.S. 104, 115 (1972).  THE FIRST AMENDMENT INTERESTS
INVOLVED IN THIS CASE ARE TRIVIAL AT BEST. 

ON THE OTHER HAND, ASSUMING ARGUENDO THAT THERE COULD BE A PLAY
PERFORMED IN A THEATER BY NUDE ACTORS INVOLVING GENUINE COMMUNICATION
OF IDEAS, THE SAME CONDUCT IN A PUBLIC PARK OR STREET COULD BE
PROSECUTED UNDER AN ORDINANCE PROHIBITING INDECENT EXPOSURE.  THIS IS
SO BECAUSE THE POLICE POWER HAS LONG BEEN INTERPRETED TO AUTHORIZE THE
REGULATION OF NUDITY IN AREAS TO WHICH ALL MEMBERS OF THE PUBLIC HAVE
ACCESS, REGARDLESS OF ANY INCIDENTA EFFECT UPON COMMUNICATION.  A
NUDIST COLONY, FOR EXAMPLE, CANNOT LAWFULLY SET UP SHOP IN CENTRAL PARK
OR LAFAYETTE PARK, PLACES ESTABLISHED FOR THE PUBLIC GENERALLY.  CF.
PARIS ADULT THEATRE I V. SLATON, 413 U.S. 49, 67 (1973); ROTH V. UNITED
STATES, 354 U.S. 476, 512 (1957) (DOUGLAS, J., DISSENTING).  WHETHER
SUCH REGULATION IS JUSTIFIED AS NECESSARY TO PROTECT PUBLIC MORES OR
SIMPLY TO INSURE THE UNDISTRACTED ENJOYMENT OF OPEN AREAS BY THE
GREATEST NUMBER OF PEOPLE--OR FOR TRAFFIC SAFETY--ITS RATIONALE APPLIES
A FORTIORI TO GIANT DISPLYS WHICH THROUGH TECHNOLOGY ARE CAPABLE OF
REVEALING AND EMPHASIZING THE MOST INTIMATE DETAILS OF HUMAN ANATOMY. 

IN SUM, THE JACKSONVILLE ORDINANCE INVOLVED IN THIS CASE, ALTHOUGH
NO MODEL OF DRAFTSMANSHIP, IS NARROWLY DRAWN TO REGULATE ONLY CERTAIN
UNIQUE PUBLIC EXHIBITIONS OF NUDITY; IT WOULD BE ABSURD TO SUGGEST THAT
IT OPERATES TO SUPPRESS EXPRESSION OF IDEAS.  BY CONVENIENTLY IGNORING
THESE FACTS AND DECIDING THE CASE ON THEBASIS OF ABSOLUTES THE COURT
ADDS NOTHING TO FIRST AMENDMENT ANALYSIS AND SACRIFICES LEGITIMATE
STATE INTERESTS.  I WOULD AFFIRM THE JUDGMENT OF THE FLORIDA COURT OF
APPEAL.  /2/ 

/1/ FOR EXAMPLE, IN A CASE SIMILAR TO THIS ONE THE SCREEN MEASURED
35 FEET BY 70 FEE AND STOOD 54 FEET ABOVE THE GROUND.  BLOSS V. PARIS
TOWNSHIP, 380 MCIH.  466, 157 N.W.2D 260 (1968). 

/2/ ON MY VIEW OF THIS CASE IT IS NOT NECESSARY TO DEAL WITH THE
ISSUES DISCUSSED IN PARTS II-B, II-C, AND III OF THE COURT'S OPINION. 

MR. JUSTICE WHITE, DISSENTING. 

THE COURT ASSERTS THAT THE STATE MAY SHIELD THE PUBLIC FROM SELECTED
TYPES OF SPEECH AND ALLEGEDLY EXPRESSIVE CONDUCT, SUCH AS NUDITY, ONLY
WHEN THE SPEAKER OR ACTOR INVADES THE PRIVACY OF THE HOME OR WHERE THE
DEGREE OF CAPTIVITY OF AN UNWILLING LISTENER IS SUCH THAT IT IS
IMPRACTICAL FOR HIM TO AVOID THE EXPOSURE BY AVERTING HIS EYES.  THE
COURT CONCLUDES:  "THAT THE LIMITED PRIVACY INTEREST OF PERSONS ON THE
PUBLIC STREETS CANNOT JUSTIFY THIS CENSORSHIP OF OTHERWISE PROTECTED
SPEECH ON THE BASIS OF ITS CONTENT."  ANTE, AT 212.  IF THIS BROADSIDE
IS TO BE TAKEN LITERALLY, THE STATE MAY NOT FORBID "EXPRESSIVE" NUDITY
ON THE PUBLIC STREETS, IN THE PUBLIC PARKS, OR ANY OTHER PUBLIC PLACE
SINCE OTHER PERSONS IN THOSE PLACES AT THAT TIME HAVE A "LIMITED
PRIVACY INTEREST" AND MAY MERELY LOOK THE OTHER WAY. 

I AM NOT READY TO TAKE THIS STEP WITH THE COURT.  MOREOVER, BY THE
COURT'S OWN ANALYSIS, THE STEP IS AN UNNECESSARY ONE.  IF, AS THE COURT
HOLDS IN PART II-B OF ITS OPINION, THE ORDINANCE IS UNCONSTITUTIONALLY
OVERBROAD EVEN AS AN EXERCISE OF THE POLICE POWER TO PROTECT CHILDREN,
IT IS FATALLY OVERBROAD AS TO THE POPULATION GENERALLY.  PART II-A IS
SURPLUSAGE.  I THEREFORE DISSENT. 

WILLIAM H. MANESS ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

WILLIAM LEE ALLEN ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS HARRY LOUIS SHORSTEIN. 

(BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JAMES BOURAS
FOR THE MOTION PICTURE ASSOCIATION OF AMERICA, INC., AND BY IRWIN KARP
FOR AUTHORS LEAGUE OF AMERICA, INC.)
..END :

















UNITED STATES V. NOBLES, 422 US 225 


       UNITED STATES V. NOBLES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 74 - 634.  ARGUED APRIL 23, 1975--DECIDED JUNE 23,
1975;

           501 F.2D 146, REVERSED. 


DURING RESPONDENT'S FEDERAL CRIMINAL TRIAL, WHICH RESULTED IN A
CONVICTION, DEFENSE COUNSEL SOUGHT TO IMPEACH THE CREDIBILITY OF KEY
PROSECUTION WITNESSES BY TESTIMONY OF A DEFENSE INVESTIGATOR REGARDING
STATEMENTS PREVIOUSLY OBTAINED FROM THE WITNESSES BY THE DISTRICT COURT
STATED THAT A COPY OF THE INVESTIGATOR'S REPORT, INSPECTED AND EDITED
BY THE COURT IN CAMERA SO AS TO EXCISE REFERENCES TO MATTERS NOT
RELEVANT TO SUCH STATEMENTS, WOULD HAVE TO BE SUBMITTED TO THE
PROSECUTION FOR INSPECTION AT THE COMPLETION OF THE INVESTIGATOR'S
TESTIMONY.  WHEN DEFENSE COUNSEL SAID HE DID NOT INTEND TO PRODUCE THE
REPORT, THE COURT RULED THAT THE INVESTIGATOR COULD NOT TESTIFY ABOUT
HIS INTERVIEWS WITH THE WITNESSES.  THE COURT OF APPEALS, CONSIDERING
SUCH RULING TO BE REVERSIBLE ERROR, HELD THAT BOTH THE FIFTH AMENDMENT
AND FED. RULE CRIM. PROC. 16 PROHIBITED THE DISCLOSURE CONDITION
IMPOSED.  HELD: 

1.  IN A PROPER CASE, THE PROSECUTION, AS WELL AS THE DEFENSE, CAN
INVOKE THE FEDERAL JUDICIARY'S INHERENT POWER TO REQUIRE PRODUCTION OF
PREVIOUSLY RECORDED WITNESS STATEMENTS THAT FACILITATE FULL DISCLOSURE
OF ALL THE RELEVANT FACTS.  HERE THE INVESTIGATOR'S REPORT MIGHT
PROVIDE CRITICAL INSIGHT INTO THE ISSUES OF CREDIBILITY THAT THE
INVESTIGATOR'S TESTIMONY WOULD RAISE AND HENCE WAS HIGHLY RELEVANT TO
SUCH ISSUES.  PP. 230 - 232. 

2.  THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY
SELFINCRIMINATION, BEING PERSONAL TO THE DEFENDANT, DOES NOT EXTEND TO
THE TESTIMONY OR STATEMENTS OF THIRD PARTIES CALLED AS WITNESSES AT
TRIAL.  IN THIS INSTANCE THE FACT THAT THE STATEMENTS OF THIRD PARTIES
WERE ELICITED BY A DEFENSE INVESTIGATOR ON RESPONDENT'S BEHALF DOES NOT
CONVERT THEM INTO RESPONDENT'S PERSONAL COMMUNICATIONS, AND REQUIRING
THEIR PRODUCTION WOULD IN NO SENSE COMPEL RESPONDENT TO BE A WITNESS
AGAINST HIMSELF OR EXTORT COMMUNICATIONS FROM HIM.  PP. 233 - 234. 

3.  RULE 16, WHOSE LANGUAGE AND HISTORY BOTH INDICATE THAT IT
ADDRESSES ONLY PRETRIAL DISCOVERY, IMPOSES NO CONSTRAINT ON THE
DISTRICT COURT'S POWER TO CONDITION THE IMPEACHMENT TESTIMONY OF
RESPONDENT'S WITNESS ON THE PRODUCTION OF THE RELEVANT PORTIONS OF HIS
REPORT.  THE FACT THAT THE RULE INCORPORATES THE JENCKS ACT LIMITATION
SHOWS NO CONTRARY INTENT AND DOES NOT CONVERT THE RULE INTO A GENERAL
LIMITATION ON THE TRIAL COURT'S BROAD DISCRETION AS TO EVIDENTIARY
QUESTIONS AT TRIAL.  PP. 234 - 236. 

4.  THE QUALIFIED PRIVILEGE DERIVED FROM THE ATTORNEY WORK PRODUCT
DOCTRINE IS NOT AVAILABLE TO PREVENT DISCLOSURE OF THE INVESTIGATIVE
REPORT, SINCE RESPONDENT, BY ELECTING TO PRESENT EH INVESTIGATORY AS A
WITNESS, WAIVED THE PRIVILEGE WITH RESPECT TO MATTERS COVERED IN HIS
TESTIMONY.  PP. 236 - 240. 

5.  IT WAS WITHIN THE DISTRICT COURT'S DISCRETION TO ASSURE THAT THE
JURY WOULD HEAR THE INVESTIGATOR'S FULL TESTIMONY RATHER THAN A
TRUNCATED PORTION FAVORABLE TO RESPONDENT, AND THE COURT'S RULING,
CONTRARY TO RESPONDENT'S CONTENTION, DID NOT DEPRIVE HIM OF THE SIXTH
AMENDMENT RIGHTS TO COMPULSORY PROCESS AND CROSS-EXAMINATION.  THAT
AMENDMENT DOES NOT CONFER THE RIGHT TO PRESENT TESTIMONY FREE FROM THE
LEGITIMATE DEMANDS OF THE ADVERSARIAL SYSTEM AND CANNOT BE INVOKED AS A
JUSTIFICATION FOR PRESENTING WHAT MIGHT HAVE BEEN A HALF-TRUTH.  PP.
240 - 241. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BERGER,
C.J., AND BRENNAN, STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED, AND IN
PARTS II, III, AND V OF WHICH WHITE AND REHNQUIST, JJ., JOINED.  WHITE,
J., FILED A CONCURRING OPINION, IN WHICH REHNQUIST, J., JOINED, POST,
P. 242.  DOUGLAS, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

IN A CRIMINAL TRIAL, DEFENSE COUNSEL SOUGH TO IMPEACH THE CREDIBILITY
OF KEY PROSECUTION WITNESSES BY TESTIMONY OF A DEFENSE INVESTIGATOR
REGARDING STATEMENTS PREVIOUSLY OBTAINED FROM THE WITNESSES BY THE
INVESTIGATOR.  THE QUESTION PRESENTED HERE IS WHETHER IN THESE
CIRCUMSTANCES A FEDERAL TRIAL COURT MAY COMPEL THE DEFENSE TO REVEAL
THE RELEVANT PORTIONS OF THE INVESTIGATOR'S REPORT FOR THE
PROSECUTION'S USE IN CROSS-EXAMINING HIM.  THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT CONCLUDED THAT IT CANNOT.  501 F.2D 146. 
WE GRANTED CERTIORARI, 419 U.S. 1120 (1975), AND NOW REVERSE. 

        I 

RESPONDENT WAS TRIED AND CONVICTED ON CHARGES ARISING FROM AN ARMED
ROBBERY OF A FEDERALLY INSURED BANK.  THE ONLY SIGNIFICANT EVIDENCE
LINKING HIM TO THE CRIME WAS THE IDENTIFICATION TESTIMONY OF TWO
WITNESSES, A BANK TELLER AND A SALESMAN WHO WAS IN THE BANK DURING THE
ROBBERY.  /1/ RESPONDENT OFFERED AN ALIBI BUT, AS THE COURT OF APPEALS
RECONGNIZED, 501 F.2D, AT 150, HIS STRONGEST DEFENSE CENTERED AROUND
ATTEMPTS TO DISCREDIT THESE EYEWITNESSES.  DEFENSE EFFORTS TO IMPEACH
THEM GAVE RISE TO THE EVENTS THAT LED TO THIS DECISION. 

IN THE COURSE OF PREPARING RESPONDENT'S DEFENSE, AN INVESTIGATOR FOR
THE DEFENSE INTERVIEWED BOTH WITNESSES AND PRESERVED THE ESSENCE OF
THOSE CONVERSATIONS IN A WRITTEN REPORT.  WHEN THE WITNESSES TESTIFIED
FOR THE PROSECUTION, RESPONDENT'S COUNSEL RELIED ON THE REPORT IN
CONDUCTING THEIR CROSS-EXAMINATION.  COUNSEL ASKED THE BANK TELLER
WHETHER HE RECALLED HAVING TOLD THE INVESTIGATOR THAT HE HAD SEEN ONLY
THE BACK OF THE MAN HE IDENTIFIED AS RESPONDENT.  THE WITNESS REPLIED
THAT HE DID NOT REMEMBER MAKING SUCH A STATEMENT.  HE WAS ALLOWED,
DESPITE DEFENSE COUNSEL'S INITIAL OBJECTION, TO REFRESH HIS
RECOLLECTION BY REFERRING TO A PORTION OF THE INVESTIGATOR'S REPORT. 
THE PROSECUTOR ALSO WAS ALLOWED TO SEE BRIEFLY THE RELEVANT PORTION OF
THE REPORT.  /2/ THE WITNESS THEREAFTER TESTIFIED THAT ALTHOUGH THE
REPORT INDICATED THAT HE TOLD THE INVESTIGATOR HE HAD SEEN ONLY
RESPONDENT'S BACK, HE IN FACT HAD SEEN MORE THAN THAT AND CONTINUED TO
INSIST THAT RESPONDENT WAS THE BANK ROBBER. 

THE OTHER WITNESS ACKNOWLEDGED ON CROSS-EXAMINATION THAT HE TOO HAD
SPOKEN TO THE DEFENSE INVESTIGATOR.  RESPONDENT'S COUNSEL TWICE
INQUIRED WHETHER HE TOLD THE INVESTIGATOR THAT "ALL BLACKS LOOKED
ALIKE" TO HIM, AND IN EACH INSTANCE THE WITNESS DENIED HAVING MADE SUCH
A STATEMENT.  THE PROSECUTION AGAIN SOUGHT INSPECTION OF THE RELEVANT
PORTION OF THE INVESTIGATOR'S REPORT, AND RESPONDENT'S COUNSEL AGAIN
OBJECTED.  THE COURT DECLINED TO ORDER DISCLOSURE AT THAT TIME, BUT
RULED THAT IT WOULD BE REQUIRED IF THE INVESTIGATOR TESTIFIED AS TO THE
WITNESSES' ALLEGED STATEMENTS FROM THE WITNESS STAND.  /3/ THE COURT
FURTHER ADVISED THAT IT WOULD EXAMINE THE INVESTIGATOR'S REPORT IN
CAMERA AND WOULD EXCISE ALL REFERENCE TO MATTERS NOT RELEVANT TO THE
PRECISE STATEMENTS AT ISSUE. 

AFTER THE PROSECUTION COMPLETED ITS CASE, RESPONDENT CALLED THE
INVESTIGATOR AS A DEFENSE WITNESS.  THE COURT REITERATED THAT A COPY OF
THE REPORT, INSPECTED AND EDITED IN CAMERA, WOULD HAVE TO BE SUBMITTED
TO GOVERNMENT COUNSEL AT THE COMPLETION OF THE INVESTIGATOR'S
IMPEACHMENT TESTIMONY.  WHEN RESPONDENT'S COUNSEL STATED THAT HE DID
NOT INTEND TO PRODUCE THE REPORT, THE COURT RULED THAT THE INVESTIGATOR
WOULD NOT BE ALLOWED TO TESTIFY ABOUT HIS INTERVIEWS WITH THE
WITNESSES.  /4/ 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT, WHILE ACKNOWLEDGING THAT
THE TRIAL COURT'S RULING CONSTITUTED A "VERY LIMITED AND SEEMINGLY
JUDICIOUS RESTRICTION," 501 F.2D, AT 151, NEVERTHELESS CONSIDERED IT
REVERSIBLE ERROR.  CITING UNITED STATES V. WRIGHT, 160 U.S.APP.  D.C.
57, 68, 489 F.2D 1181, 1192 (1973), THE COURT FOUND THAT THE FIFTH
AMENDMENT PROHIBITED THE DISCLOSURE CONDITION IMPOSED IN THIS CASE. 
THE COURT FURTHER HELD THAT FED. RULE CRIM. PROC. 16, WHILE FRAMED
EXCLUSIVELY IN TERMS OF PRETRIAL DISCOVERY, PRECLUDED PROSECUTORIAL
DISCOVERY AT TRIAL AS WELL.  501 F.2D, AT 157; ACCORD, UNITED STATES V.
WRIGHT, SUPRA, AT 66 - 67, 489 F.2D, AT 1190 - 1191.  IN EACH RESPECT,
WE THINK THE COURT ERRED. 

        II 

THE DUAL AIM OF OUR CRIMINAL JUSTICE SYSTEM IN "THAT GUILT SHALL NOT
ESCAPE OR INNOCENCE SUFFER," BERGER V. UNITED STATES, 295 U.S. 78, 88
(1935).  TO THIS END, WE HAVE PLACED OUR CONFIDENCE IN THE ADVERSARY
SYSTEM, ENTRUSTING TO IT THE PRIMARY RESPONSIBILITY FOR DEVELOPING
RELEVANT FACTS ON WHICH A DETERMINATION OF GUILT OR INNOCENCE CAN BE
MADE.  SEE UNITED STATES V. NIXON, 418 U.S. 683, 709 (1974); WILLIAMS
V. FLORIDA, 399 U.S. 78, 82 (1970); ELKINS V. UNITED STATES, 364 U.S.
206, 234 (1960) (FRANKFURTER, J., DISSENTING). 

WHILE THE ADVERSARY SYSTEM DEPENDS PRIMARILY ON THE PARTIES FOR THE
PRESENTATION AND EXPLORATION OF RELEVANT FACTS, THE JUDICIARY IS NOT
LIMITED TO THE ROLE OF A REFEREE OR SUPERVISOR.  ITS COMPULSORY
PROCESSES STAND AVAILABLE TO REQUIRE THE PRESENTATION OF EVIDENCE IN
COURT OR BEFORE A GRAND JURY.  UNITED STATES V. NIXON, SUPRA; KASTIGAR
V. UNITED STATES, 406 U.S. 441, 443 - 444 (1972); MURPHY V. WATERFRONT
COMM'N, 378 U.S. 52, 93 - 94 (1964) (WHITE, J., CONCURRING).  AS WE
RECENTLY OBSERVED IN UNITED STATES V. NIXON, SUPRA, AT 709: 

" WE HAVE ELECTED TO EMPLOY AN ADVERSARY SYSTEM OF CRIMINAL JUSTICE
IN WHICH THE PARTIES CONTEST ALL ISSUES BEFORE A COURT OF LAW.  THE
NEED TO DEVELOP ALL RELEVANT FACTS IN THE ADVERSARY SYSTEM IS BOTH
FUNDAMENTAL AND COMPREHENSIVE.  ##HC231 THE ENDS OF CRIMINAL JUSTICE
WOULD BE DEFEATED IF JUDGMENTS WERE TO BE FOUNDED ON A PARTIAL OR
SPECULATIVE PRESENTATION OF THE FACTS.  THE VERY INTEGRITY OF THE
JUDICIAL SYSTEM AND PUBLIC CONFIDENCE IN THE SYSTEM DEPEND ON FULL
DISCLOSURE OF ALL THE FACTS, WITHIN THE FRANMEWORK OF THE RULES OF
EVIDENCE.  TO ENSURE THAT JUSTICE IS DONE, IT IS IMPERATIVE TO THE
FUNCTION OF COURTS THAT COMPULSORY BE AVAILABLE FOR THE PRODUCTION OF
EVIDENCE NEEDED EITHER BY THE PROSECUTION OR BY THE DEFENSE." 
DECISIONS OF THIS COURT REPEATEDLY HAVE RECOGNIZED THE FEDERAL
JUDICIARY'S INHERENT POWER TO REQUIRE THE PROSECUTION TO PRODUCE THE
PREVIOUSLY RECORDED STATEMENTS OF ITS WITNESSES SO THAT THE DEFENSE MAY
GET THE FULL BENEFIT OF CROSS-EXAMINATION AND THE TRUTH-FINDING PROCESS
MAY BE ENHANCED.  SEE E. G., JENCKS V. UNITED STATES, 353 U.S. 657
(1957); /5/ GORDON V. UNITED STATES, 344 U.S. 414 (1953); GOLDMAN V.
UNITED STATES, 316 U.S. 129 (1942); PALERMO V. UNITED STATES, 360 U.S.
343, 361 (1959) (BRENNAN, J., CONCURRING IN RESULT).  AT ISSUE HERE IS
WHETHER, IN A PROPER CASE, THE PROSECUTION CAN CALL UPON THAT SAME
POWER FOR PRODUCTION OF WITNESS STATEMENTS THAT FACILITATE "FULL
DISCLOSURE OF ALL THE (RELEVANT) FACTS."  UNITED STATES V. NIXON,
SUPRA, AT 709. 

IN THIS CASE, THE DEFENSE PROPOSED TO CALL ITS INVESTIGATOR TO
IMPEACH THE IDENTIFICATION TESTIMONY OF THE PROSECUTION'S
EYEWITNESSES.  IT WAS EVIDENT FROM CROSS-EXAMINATION THAT THE
INVESTIGATOR WOULD TESTIFY THAT EACH WITNESS' RECOLLECTION OF THE
APPEARANCE OF THE INDIVIDUAL IDENTIFIED AS RESPONDENT WAS CONSIDERABLY
LESS CLEAR AT AN EARLIER TIME THAN IT WAS AT TRIAL.  IT ALSO APPEARED
THAT THE INVESTIGATOR AND ONE WITNESS DIFFERED EVEN AS TO WHAT THE
WITNESS TOLD HIM DURING THE INTERVIEW.  THE INVESTIGATOR'S
CONTEMPORANEOUS REPORT MIGHT PROVIDE CRITICAL INSIGHT INTO THE ISSUES
OF CREDIBILITY THAT THE INVESTIGATOR'S TESTIMONY WOULD RAISE.  IT COULD
ASSIST THE JURY IN DETERMINING THE EXTENT TO WHICH THE INVESTIGATOR'S
TESTIMONY ACTUALLY DISCREDITED THE PROSECUTION'S WITNESSES.  IF, FOR
EXAMPLE, THE REPORT FAILED TO MENTION THE PURPORTED STATEMENT OF ONE
WITNESS THAT "ALL BLACKS LOOKED ALIKE," THE JURY MIGHT DISREGARD THE
INVESTIGATOR'S VERSION ALTOGETHER.  ON THE OTHER HAND, IF THIS
STATEMENT APPEARED IN THE CONTEMPORANEOUSLY RECORDED REPORT, IT WOULD
TEND STRONGLY TO CORROBORATE THE INVESTIGATOR'S VERSION OF THE
INTERVIEW AND TO DIMINISH SUBSTANTIALLY THE RELIABILITY OF THAT
WITNESS' IDENTIFICATION.  /6/ 

IT WAS THEREFORE APPARENT TO THE TRIAL JUDGE THAT THE INVESTIGATOR'S
REPORT WAS HIGHLY RELEVANT TO THE CRITICAL ISSUE OF CREDIBILITY.  IN
THIS CONTEXT, PRODUCTION OF THE REPORT MIGHT SUBSTANTIALLY ENHANCE "THE
SEARCH FOR TRUTH," WILLIAMS V. FLORIDA, 399 U.S., AT 82.  WE MUST
DETERMINE WHETHER COMPELLING ITS PRODUCTION WAS PRECLUDED BY SOME
PRIVILEGE AVAILABLE TO THE DEFENSE IN THE CIRCUMSTANCES OF THIS CASE. 

        III

   A 

THE COURT OF APPEALS CONCLUDED THAT THE FIFTH AMENDMENT RENDERS
CRIMINAL DISCOVERY "BASICALLY A ONEWAY STREET."  501 F.2D, AT 154. 
LIKE MANY GENERALIZATIONS IN CONSTITUTIONAL LAW, THIS ONE IS TOO
BROAD.  THE RELATIONSHIP BETWEEN THE ACUSED'S FIFTH AMENDMENT RIGHTS
AND THE PROSECUTION'S ABILITY TO DISCOVER MATERIALS AT TRIAL MUST BE
IDENTIFIED IN A MORE DISCRIMINATING MANNER. 

THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION
IS AN "INTIMATE AND PERSONAL ONE," WHICH PROTECTS "A PRIVATE INNER
SANCTUM OF INDIVIDUAL FEELING AND THOUGHT AND PROSCRIBES STATE
INTRUSION TO EXTRACT SELF-CONDEMNATION."  COUCH V. UNITED STATES, 409
U.S. 322, 327 (1973); SEE ALSO BELLIS V. UNITED STATES, 417 U.S. 85, 90
- 91 (1974); UNITED STATES V. WHITE, 322 U.S. 694, 698 (1944).  AS WE
NOTED IN COUCH, SUPRA, AT 328, THE "PRIVILEGE IS A PERSONAL PRIVILEGE:
IT ADHERES BASICALLY TO THE PERSON, NOT TO INFORMATION THAT MAY
INCRIMINATE HIM."  /7/ 

IN THIS INSTANCE DISCLOSURE OF THE RELEVANT PORTIONS OF THE DEFENSE
INVESTIGATOR'S REPORT WOULD NOT IMPINGE ON THE FUNDAMENTAL VALUES
PROTECTED BY THE FIFTH AMENDMENT.  THE COURT'S ORDER WAS LIMITED TO
STATEMENTS ALLEGEDLY MADE BY THIRD PARTIES WHO WERE AVAILABLE AS
WITNESSES TO BOTH THE PROSECUTION AND THE DEFENSE.  RESPONDENT DID NOT
PREPARE THE REPORT, AND THERE IS NO SUGGESTION THAT THE PORTIONS
SUBJECT TO THE DISCLOSURE ORDER REFLECTED ANY INFORMATION THAT HE
CONVEYED TO THE INVESTIGATOR.  THE FACT THAT THESE STATEMENTS OF THIRD
PARTIES WERE ELICITED BY A DEFENSE INVESTIGATOR ON RESPONDENT'S BEHALF
DOES NOT CONVERT THEM INTO RESPONDENT'S PERSONAL COMMUNICATIONS. 
REQUIRING THEIR PRODUCTION FROM THE INVESTIGATOR THEREFORE WOULD NOT IN
ANY SENSE COMPEL RESPONDENT TO BE A WITNESS AGAINST HIMSELF OR EXTORT
COMMUNICATIONS FROM HIM. 

WE THUS CONCLUDE THAT THE FIFTH AMENDMENT PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION, BEING PERSONAL TO THE DEFENDANT, DOES
NOT EXTEND TO THE TESTIMONY OR STATEMENTS OF THIRD PARTIES CALLED AS
WITNESSES AT TRIAL.  THE COURT OF APPEALS' RELIANCE ON THIS
CONSTITUTIONAL GUARANTEE AS A BAR TO THE DISCLOSURE HERE ORDERED WAS
MISPLACED. 

        B 

THE COURT OF APPEALS ALSO HELD THAT FED. RULE CRIM. PROC. 16
DEPRIVED THE TRIAL COURT OF THE POWER TO ORDER DISCLOSURE OF THE
RELEVANT PORTIONS OF THE INVESTIGATOR'S REPORT.  /8/ ACKNOWLEDGING THAT
THE RULE APPEARS TO CONTROL PRETRIAL DISCOVERY ONLY, THE COURT
NONETHELESS DETERMINED THAT ITS REFERENCE TO THE JENCKS ACT, 18 U.S.C.
SEC. 3500, SIGNALED AN INTENTION THAT RULE 16 SHOULD CONTROL TRIAL
PRACTICE AS WELL.  WE DO NOT AGREE. 

BOTH THE LANGUAGE AND HISTORY OF RULE 16 (F) REQUIRES THAT A MOTION
FOR DISCOVERY BE FILED "WITHIN 10 DAYS AFTER ARRAIGNMENT OR . . . SUCH
REASONABLE LATER TIME AS THE COURT MAY PERMIT," AND FURTHER COMMANDS
THAT IT INCLUDE ALL RELIEF SOUGHT BY THE MOVANT.  WHEN THIS PROVISION
IS VIEWED IN LIGHT OF THE ADVISORY COMMITTEE'S ADMONITION THAT IT IS
DESIGNED TO ENCOURAGE PROMPTNESS IN FILING AND TO ENABLE THE DISTRICT
COURT TO AVOID UNNECESSARY DELAY OR MULTIPLICATION OF MOTIONS, SEE
ADVISORY COMMITTEE'S NOTES ON RULE 16, 18 U.S.C.APP., AT 4494, THE
PRETRIAL FOCUS OF THE RULE BECOMES APPARENT.  THE GOVERNMENT'S RIGHT OF
DISCOVERY ARISES ONLY AFTER THE DEFENDANT HAS SUCCESSFULLY SOUGHT
DISCOVERY UNDER SUBSECTIONS (A) (2) OR (B) AND IS CONFINED TO MATTERS
"WHICH THE DEFENDANT INTENDS TO PRODUCE AT THE TRIAL."  FED.  RULE
CRIM. PROC. 16 (C).  THIS HARDLY SUGGESTS ANY INTENTION THAT THE RULE
WOULD LIMIT THE COURT'S POWER TO ORDER PRODUCTION ONCE TRIAL HAS
BEGUN.  /9/ FINALLY, THE ADVISORY COMMITTEE'S NOTES EMPHASIZE ITS
PRETRIAL CHARACTER.  THOSE NOTES REPEATEDLY CHARACTERIZE THE RULE AS A
PROVISION GOVERNING PRETRIAL DISCLOSURE, NEVER ONCE SUGGESTING THAT IT
WAS INTENDED TO CONSTRICT A DISTRICT COURT'S CONTROL OVER EVIDENTIARY
QUESTIONS ARISING AT TRIAL.  18 U.S.C.APP., AT 4493 - 4495. 

THE INCORPORATION OF THE JENCKS ACT LIMITATION ON THE PRETRIAL RIGHT
OF DISCOVERY PROVIDED BY RULE 16 DOES NOT EXPRESS A CONTRARY INTENT. 
IT ONLY RESTRICTS THE DEFENDANT'S RIGHT OF PRETRIAL DISCOVERY IN A
MANNER THAT RECONCILES THAT PROVISION WITH THE JENCKS ACT LIMITATION ON
THE TRIAL COURT'S DISCRETION OVER EVIDENTIARY MATTERS.  IT CERTAINLY
DOES NOT CONVERT RULE 16 INTO A GENERAL LIMITATION ON THE TRIAL COURT'S
BROAD DISCRETION AS TO EVIDENTIARY QUESTIONS AT TRIAL.  CF. GILES V.
MARYLAND, 386 U.S. 66, 101 (1967) (FORTAS, J., CONCURRING IN
JUDGMENT).  /10/ WE CONCLUDE, THEREFORE, THAT RULE 16 IMPOSES NO
CONSTRAINT ON THE DISTRICT COURT'S POWER TO CONDITION THE IMPEACHMENT
TESTIMONY OF RESPONDENT'S WITNESS ON THE PRODUCTION OF THE RELEVANT
PORTIONS OF HIS INVESTIGATIVE REPORT.  IN EXTENDING THE RULE INTO THE
TRIAL CONTEXT, THE COURT OF APPEALS ERRED.             IV 

RESPONDENT CONTENDS FURTHER THAT THE WORK PRODUCT DOCTRINE EXEMPTS
THE INVESTIGATOR'S REPORT FROM DISCLOSURE AT TRIAL.  WHILE WE AGREE
THAT THIS DOCTRINE APPLIES TO CRIMINAL LITIGATION AS WELL AS CIVIL, WE
FIND ITS PROTECTION UNAVAILABLE IN THIS CASE. 

THE WORK PRODUCT DOCTRINE, RECOGNIZED BY THIS COURT IN HICKMAN V.
TAYLOR, 329 U.S. 495 (1947), REFLECTS THE STRONG "PUBLIC POLICY
UNDERLYING THE ORDERLY PROSECUTION AND DEFENSE OF LEGAL CLAIMS."  ID.,
AT 510; SEE ALSO ID., AT 514 - 515 (JACKSON, J., CONCURRING).  AS THE
COURT THERE OBSERVED: 

     " HISTORICALLY, A LAWYER IS AN OFFICER OF THE COURT AND IS

  BOUND TO WORK FOR THE ADVANCEMENT OF JUSTICE WHILE FAITHFULLY

  PROTECTING THE RIGHTFUL INTERESTS OF HIS CLIENTS.  IN PERFORMING

  HIS VARIOUS DUTIES, HOWEVER, IT IS ESSENTIAL THAT A LAWYER WORK

  WITH A CERTAIN DEGREE OF PRIVACY, FREE FROM UNNECESSARY INTRUSION

  BY OPPOSING PARTIES AND THEIR COUNSEL.  PROPER PRESENTATION OF A

  CLIENT'S CASE DEMANDS THAT HE ASSEMBLE INFORMATION, SIFT WHAT HE

  CONSIDERS TO BE THE RELEVANT FROM THE IRRELEVANT FACTS, PREPARE

  HIS LEGAL THEORIES AND PLAN HIS STRATEGY WITHOUT UNDUE AND

  NEEDLESS INTERFERENCE.  THAT IS THE HISTORICAL AND THE NECESSARY

  WAY IN WHICH LAWYERS ACT WITNIN THE FRAMEWORK OF OUR SYSTEM OF

  JURISPRUDENCE TO PROMOTE JUSTICE AND TO PROTECT THEIR CLIENTS'

  INTERESTS.  THIS WORK IS REFLECTED, OF COURSE, IN INTERVIEWS,

  STATEMENTS, MEMORANDA, CORRESPONDENCE, BRIEFS, MENTAL

  IMPRESSIONS, PERSONSL BELIEFS, AND COUNTLESS OTHER TANGIBLE AND

  INTANGIBLE WAYS--APTLY THOUGH ROUGHTLY TERMED BY THE CORCUIT

  COURT OF APPEALS IN THIS CASE AS THE 'WORK PRODUCT OF THE

  LAWYER.'  WERE SUCH MATERIALS OPEN TO OPPOSING COUNSEL ON MERE

DEMAND, MUCH OF WHAT IS NOW PUT DOWN IN WRITING WOULD REMAIN

  UNWRITTEN.  AN ATTORNEY'S THOUGHTS, HERETOFORE INVIOLATE, WOULD

  NOT BE HIS OWN.  INEFFICIENCY, UNFAIRNESS AND SHARP PRACTICES

  WOULD INEVITABLY DEVELOP IN THE GIVING OF LEGAL ADVICE AND IN THE

  PREPARATION OF CASES FOR TRIAL.  THE EFFECT ON THE LEGAL

  PROFESSION WOULD BE DEMORALIZING.  AND THE INTERESTS OF THE

  CLIENTS AND THE CAUSE OF JUSTICE WOULD BE POORLY SERVED."  ID.,
AT

  510 - 511. 

THE COURT THEREFORE RECOGNIZED A QUALIFIED PRIVILEGE FOR CERTAIN
MATERIALS PREPARED BY AN ATTORNEY "ACTING FOR HIS CLIENT IN
ANTICIPATION OF LITIGATION."  ID., AT 508.  /11/ SEE GENERALLY 4 J.
MOORE, FEDERAL PRACTICE 26.63 (2D ED. 1974); E. CLEARY, MC CORMICK ON
EVIDENCE 204 - 209 (2D ED. 1972); NOTE, DEVELOPMENTS IN THE LAW-
DISCOVERY, 74 HARV. L.REV.  940, 1027 - 1046 (1961). 

ALTHOUGH THE WORK PRODUCT DOCTRINE MOST FREQUENTLY IS ASSERTED AS A
BAR TO DISCOVERY IN CIVIL LITIGATION, ITS ROLE IN ASSURING THE PROPER
FUNCTIONING OF THE CRIMINAL JUSTICE SYSTEM IS EVEN MORE VITAL.  THE
INTERESTS OF SOCIETY AND THE ACCUSED IN OBTAINING A FAIR AND ACCURATE
RESOLUTION OF THE QUESTION OF GUILT OR INNOCENCE DEMAND THAT ADEQUATE
SAFEGUARDS ASSURE THE THOROUGH PREPARATION AND PRESENTATION OF EACH
SIDE OF THE CASE.  /12/ 

AT ITS CORE, THE WORK PRODUCT DOCTRINE SHELTERS THE MENTAL PROCESSES
OF THE ATTORNEY, PROVIDING A PRIVILEGED AREA WITHIN WHICH HE CAN
ANALYZE AND PREPARE HIS CLIENT'S CASE.  BUT THE DOCTRINE IS AN
INTENSELY PRACTICAL ONE, GROUNDED IN THE REALITIES OF LITIGATION IN OUR
ADVERSARY SYSTEM.  ONE OF THOSE REALITIES IS THAT ATTORNEYS OFTEN MUST
RELY ON THE ASSISTANCE OF INVESTIGATORS AND OTHER AGENTS IN THE
COMPILATION OF MATERIALS IN PREPARATION FOR TRIAL.  IT IS THEREFORE
NECESSARY THAT THE DOCTRINE PROTECT MATERIAL PREPARED BY AGENTS FOR THE
ATTORNEY AS WELL AS THOSE PREPARED BY THE ATTORNEY HIMSELF.  /13/
MOREOVER, THE CONCERNS REFLECTED IN THE WORK PRODUCT DOCTRINE DO NOT
DISAPPEAR ONCE TRIAL HAS BEGUN.  DISCLOSURE OF AN ATTORNEY'S EFFORTS AT
TRIAL, AS SURELY AS DISCLOSURE DURING PRETRIAL DISCOVERY, COULD DISRUPT
THE ORDERLY DEVELOPMENT AND PRESENTATION OF HIS CASE.  WE NEED NOT,
HOWEVER, UNDERTAKE HERE TO DELINEATE THE SCOPE OF THE DOCTRINE AT
TRIAL, FOR IN THIS INSTANCE IT IS CLEAR THAT THE DEFENSE WAIVED SUCH
RIGHT AS MAY HAVE EXISTED TO ENVOKE ITS PROTECTIONS. 

THE PRIVILEGE DERIVED FROM THE WORK PRODUCT DOCTRINE IS NOT
ABSOLUTE.  LIKE OTHER QUALIFIED PRIVILEGES, IT MAY BE WAIVED.  HERE
RESPONDENT SOUGHT TO ADDUCE THE TESTIMONY OF THE INVESTIGATOR AND
CONTRAST HIS RECOLLECTION OF THE CONTESTED STATEMENTS WITH THAT OF THE
PROSECUTION'S WITNESSES.  RESPONDENT, BY ELECTING TO PRESENT THE
INVESTIGATOR AS A WITNESS, WAIVED THE PRIVILEGE WITH RESPECT TO MATTERS
COVERED IN HIS TESTIMONY.  /14/ RESPONDENT CAN NO MORE ADVANCE THE WORK
PRODUCT DOCTRINE TO SUSTAIN A UNILATERAL TESTIMONIAL USE OF WORK
PRODUCT MATERIALS THAN HE COULD ELECT TO TESTIFY IN HIS OWN BEHALF AND
THEREAFTER ASSERT HIS FIFTH AMENDMENT PRIVILEGE TO RESIST CROSS
EXAMINATION ON MATTERS REASONABLY RELATED TO THOSE BROUGHT OUT IN
DIRECT EXAMINATION.  SEE, E. G., MC GAUTHA V. CALIFORNIA, 402 U.S. 183,
215 (1971).  /15/

        V 

FINALLY, OUR EXAMINATION OF THE RECORD PERSUADES US THAT THE
DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION IN THIS INSTANCE.  THE
COURT AUTHORIZED NO GENERAL "FISHING EXPEDITION" INTO THE DEFENSE FILES
OR INDEED EVEN INTO THE DEFENSE INVESTIGATOR'S REPORT.  CF. UNITED
STATES V. WRIGHT, 160 U.S.APP.  D.C. 57, 489 F.2D 1181 (1973).  RATHER,
ITS CONSIDERED RULING WAS QUITE LIMITED IN SCOPE, OPENING TO
PROSECUTION SCRUTINY ONLY THE PORTION OF THE REPORT THAT RELATED TO THE
TESTIMONY THE INVESTIGATOR WOULD OFFER TO DISCREDIT THE WITNESSES'
IDENTIFICATION TESTIMONY.  THE COURT FURTHER AFFORDED RESPONDENT THE
MAXIMUM OPPORTUNITY TO ASSIST IN AVOIDING UNWARRANTED DISCLOSURE OR TO
EXERCISE AN INFORMED CHOICE TO CALL FOR THE INVESTIGATOR'S TESTIMONY
AND THEREBY OPEN HIS REPORT TO EXAMINATION. 

THE COURT'S PRECLUSION SANCTION WAS AN ENTIRELY PROPER METHOD OF
ASSURING COMPLIANCE WITH ITS ORDER.  RESPONDENT'S ARGUMENT THAT THIS
RULING DEPRIVED HIM OF THE SIXTH AMENDMENT RIGHTS TO COMPULSORY PROCESS
AND CROSS-EXAMINATION MISCONCEIVES THE ISSUE.  THE DISTRICT COURT DID
NOT BAR THE INVESTIGATOR'S TESTIMONY.  CF. WASHINGTON V. TEXAS, 388
U.S. 14, 19 (1967).  IT MERELY PREVENTED RESPONDENT FROM PRESENTING TO
THE JURY A PARTIAL VIEW OF THE CREDIBILITY ISSUE BY ADDUCING THE
INVESTIGATOR'S TESTIMONY AND THEREAFTER REFUSING TO DISCLOSE THE
CONTEMPORANEOUS REPORT THAT MIGHT OFFER FURTHER CRITICAL INSIGHTS.  THE
SIXTH AMENDMENT DOES NOT CONFER THE RIGHT TO PRESENT TESTIMONY FREE
FROM THE LEGITIMATE DEMANDS OF THE ADVERSARIAL SYSTEM; ONE CANNOT
INVOKE THE SIXTH AMENDMENT AS A JUSTIFICATION FOR PRESENTING WHAT MIGHT
HAVE BEEN A HALF-TRUTH.  DECIDING, AS WE DO, THAT IT WAS WITHIN THE
COURT'S DISCRETION TO ASSURE THAT THE JURY WOULD HEAR THE FULL
TESTIMONY OF THE INVESTIGATOR RATHER THAN A TRUNCATED PORTION FAVORABLE
TO RESPONDENT, WE THINK IT WOULD BE ARTIFICIAL INDEED TO DEPRIVE THE
COURT OF THE POWER TO EFFECTUATE THAT JUDGMENT.  NOR DO WE FIND
CONSTITUTIONAL SIGNIFICANCE IN THE FACT THAT THE COURT IN THIS INSTANCE
WAS ABLE TO EXCLUDE THE TESTIMONY IN ADVANCE RATHER THAN RECEIVE IT IN
EVIDENCE AND THEREAFTER CHARGE THE JURY TO DISREGARD IT WHEN
RESPONDENT'S COUNSEL REFUSED, AS HE SAID HE WOULD, TO PRODUCE THE
REPORT.  /16/ 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IS
THEREFORE REVERSED. 

/1/ THE ONLY OTHER EVIDENCE INTRODUCED AGAINST RESPONDENT WAS A
STATEMENT MADE AT THE TIME OF ARREST IN WHICH HE DENIED THAT HE WAS
ROBERT NOBLES AND SUBSEQUENTLY STATED THAT HE KNEW THAT THE FBI HAD
BEEN LOOKING FOR HIM. 

/2/ COUNSEL FOR THE GOVERNMENT COMPLAINED THAT THE PORTION OF THE
REPORT PRODUCED AT THIS TIME WAS ILLEGIBLE.  THE WITNESS' TESTIMONY
INDICATES, HOWEVER, THAT HE HAD NO DIFFICULTY REASING IT. 

/3/ THE ESSENCE OF THE DISTRICT COURT'S ORDER WAS AS FOLLOWS:  "(IF
THE INVESTIGATOR) IS ALLOWED TO TESTIFY IT WOULD BE NECESSARY THAT
THOSE PORTIONS OF (THE) INVESTIGATIVE REPORT WHICH CONTAIN THE
STATEMENTS OF THE IMPEACHED WITNESS WILL HAVE TO BE TURNED OVER TO THE
PROSECUTION; NOTHING ELSE IN THAT REPORT. 

        * * * * * 

" IF HE TESTIFIES IN ANY WAY ABOUT IMPEACHING STATEMENTS MADE BY
EITHER OF THE TWO WITNESSES, THEN IT IS THE COURT'S VIEW THAT THE
GOVERNMENT IS ENTITLED TO LOOK AT HIS REPORT AND ONLY THOSE PORTIONS OF
THAT REPORT WHICH CONTAIN THE ALLEGED IMPEACHING STATEMENTS . . . OF
THE WITNESSES."  APP.  31. 

/4/ ALTHOUGH THE PORTION OF THE REPORT CONTAINING THE BANK TELLER'S
ALLEGED STATEMENT PREVIOUSLY WAS REVEALED AND MARKED FOR
IDENTIFICATION, IT WAS NOT INTRODUCED INTO EVIDENCE.  WHEN THE
DISCUSSION OF THE INVESTIGATOR'S TESTIMONY SUBSEQUENTLY AROSE, COUNSEL
FOR THE GOVERNMENT NOTED THAT HE HAD ONLY A LIMITED OPPORTUNITY TO
GLANCE AT THE STATEMENT, AND HE THEN REQUESTED DISCLOSURE OF THAT
PORTION OF THE REPORT AS WELL AS THE STATEMENT PURPORTEDLY MADE BY THE
SALESMAN. 

AS INDICATED ABOVE, THE BANK TELLER DID NOT DENY HAVING MADE THE
STATEMENT RECORDED IN THE INVESTIGATOR'S REPORT.  IT IS THUS POSSIBLE
THAT THE INVESTIGATOR'S TESTIMONY ON THAT POINT WOULD NOT HAVE
CONSTITUTED AN IMPEACHMENT OF THE STATEMENTS OF THAT WITNESS WITHIN THE
CONTEMPLATION OF THE COURT'S ORDER AND WOULD NOT HAVE GIVEN RISE TO A
DUTY OF DISCLOSURE.  COUNSEL DID NOT PURSUE THIS POINT, HOWEVER, AND
DID NOT SEEK FURTHER CLARIFICATION OF THE ISSUE.  RESPONDENT DOES NOT,
AND IN VIEW OF THE FAILURE TO DEVELOP THE ISSUE AT TRIAL COULD NOT,
URGE THIS AS A GROUND FOR REVERSAL.  NOR DOES RESPONDENT MAINTAIN THAT
THE INITIAL DISCLOSURE OF THE BANK TELLER'S STATEMENT SUFFICED TO
SATISFY THE COURT'S ORDER.  WE THEREFORE CONSIDER EACH OF THE TWO
ALLEGED STATEMENTS IN THE REPORT TO BE IMPEACHING STATEMENTS THAT WOULD
HAVE SUBJECT TO DISCLOSURE IF THE INVESTIGATOR HAD TESTIFIED ABOUT
THEM. 

/5/ THE DISCRETION RECOGNIZED BY THE COURT IN JENCKS SUBSEQUENTLY
WAS CIRCUMSCRIBED BY CONGRESS IN THE SO-CALLED JENCKS ACT, 18 U.S.C.
SEC. 3500.  SEE GENERALLY PALERMO V. UNITED STATES, 360 U.S. 343
(1959). 

/6/ RULE 612 OF THE NEW FEDERAL RULES OF EVIDENCE ENTITLES AN
ADVERSE PARTY TO INSPECT A WRITING RELIED ON TO REFRESH THE
RECOLLECTION OF A WITNESS WHILE TESTIFYING.  THE RULE ALSO AUTHORIZES
DISCLOSURE OF WRITINGS RELIED ON TO REFRESH RECOLLECTION BEFORE
TESTIFYING IF THE COURT DEEMS IT NECESSARY IN THE INTERESTS OF
JUSTICE.  THE PARTY OBTAINING THE WRITING THEREAFTER CAN USE IT IN
CROSS-EXAMINING THE WITNESS AND CAN INTRODUCE INTO EVIDENCE THOSE
PORTIONS THAT RELATE TO THE WITNESS' TESTIMONY.  AS THE FEDERAL RULES
OF EVIDENCE WERE NOT IN EFFECT AT THE TIME OF RESPONDENT'S TRIAL, WE
HAVE NO OCCASION TO CONSIDER THEM OR THEIR APPLICABILITY TO THE
SITUATION HERE PRESENTED. 

/7/ " THE PURPOSE OF THE RELEVANT PART OF THE FIFTH AMENDMENT IS TO
PREVENT COMPELLED SELF-INCRIMINATION, NOT TO PROTECT PRIVATE TESTIMONY
DEMANDED OF A WITNESS MAY BE VERY PRIVATE INDEED, BUT UNLESS IT IS
INCRIMINATING AND PROTECTED BY THE AMENDMENT OR UNLESS PROTECTED BY ONE
OF THE EVIDENTIARY PRIVILEGES, IT MUST BE DISCLOSED."  MANESS V.
MEYERS, 419 U.S. 449, 473 - 474 (1975) (WHITE, J., CONCURRING IN
RESULT).  MOREOVER, THE CONSTITUTIONAL GUARANTEE PROTECTS ONLY AGAINST
FORCED INDIVIDUAL DISCLOSURE OF A "TESTIMONIAL OR COMMUNICATIVE
NATURE,"  SCHMERBER V. CALIFORNIA, 384 U.S. 757, 761 (1966); SEE ALSO
UNITED STATES V. WADE, 388 U.S. 218, 222 (1967); GILBERT V. CALIFORNIA,
388 U.S. 263 (1967). 

/8/ RULE 16 (C), WHICH ESTABLISHES THE GOVERNMENT'S RECIPROCAL RIGHT
OF PRETRIAL DISCOVERY, EXCEPTS "REPORTS, MEMORANDA, OR OTHER INTERNAL
DEFENSE DOCUMENTS MADE BY THE DEFENDANT, OR HIS ATTORNEYS OR AGENTS IN
CONNECTION WITH THE INVESTIGATION OR DEFENSE OF THE CASE, OR OF
STATEMENTS MADE BY THE DEFENDANT, OR BY GOVERNMENT OR DEFENSE
WITNESSES, OR BY PROSPECTIVE GOVERNMENT OR DEFENSE WITNESSES, TO THE
DEFENDANT, HIS AGENTS OR ATTORNEYS."  THAT RULE THEREFORE WOULD NOT
AUTHORIZE PRETRIAL DISCOVERY OF THE INVESTIGATOR'S REPORT.  THE
PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CRIMINAL PROCEDURE LEAVE
THIS SUBSECTION SUBSTANTIALLY UNCHANGED.  SEE PROPOSED RULE 16 OF
CRIMINAL PROCEDURE, 62 F.R.D. 271, 305 - 306 (1974). 

/9/ RULE 16 (G) IMPOSES A DUTY TO NOTIFY OPPOSING COUNSEL OR THE
COURT OF THE ADDITIONAL MATERIALS PREVIOUSLY REQUESTED OR INSPECTED
THAT ARE SUBJECT TO DISCOVERY OR INSPECTION UNDER THE RULE, AND IT
CONTEMPLATES THAT THIS OBLIGATION WILL CONTINUE DURING TRIAL.  THE
OBLIGATION UNDER RULE 16 (G) DEPENDS, HOWEVER, ON A PREVIOUS REQUEST
FOR OR ORDER OF DISCOVERY.  THE FACT THAT THIS PROVISION MAY HAVE SOME
EFFECT ON THE PARTIES' CONDUCT DURING TRIAL DOES NOT CONVERT THE RULE
INTO A GENERAL LIMITATION ON THE COURT'S INHERENT POWER TO CONTROL
EVIDENTIARY MATTERS. 

/10/ WE NOTE ALSO THAT THE COMMENTATORS WHO HAVE CONSIDERED RULE 16
HAVE NOT SUGGESTED THAT IT IS DIRECTED TO THE COURT'S CONTROL OF
EVIDENTIARY QUESTIONS ARISING AT TRIAL.  SEE, E. G., NAKELL, CRIMINAL
DISCOVERY FOR THE DEFENSE AND THE PROSECUTION--THE DEVELOPING
CONSTITUTIONAL CONSIDERATIONS, 50 N.C.L.REV.  437, 494 - 514 (1972);
REZNECK, THE NEW FEDERAL RULES OF CRIMINAL PROCEDURE, 54 GEO. L.J.
1276, 1279, 1282 N. 19 (1966); NOTE, PROSECUTORIAL DISCOVERY UNDER
PROPOSED RULE 16, 85 HARV. L.REV.  994 (1972). 

/11/ AS THE COURT RECOGNIZED IN HICKMAN V. TAYLOR, 329 U.S., AT 508,
THE WORK PRODUCT DOCTRINE IS DISTINCT FROM AND BROADER THAN THE
ATTORNEY-CLIENT PRIVILEGE. 

/12/ A NUMBER OF STATE AND FEDEARL DECISIONS HAVE RECOGNIZED THE
ROLE OF THE WORK PRODUCT DOCTRINE IN THE CRIMINAL LAW, AND HAVE APPLIED
ITS PROTECTIONS TO THE FILES OF THE PROSECUTION AND THE ACCUSED ALIKE. 
SEE, E. G., STATE V. BOWEN, 104 ARIZ. 138, 449 P. 2D 603, CERT. DENIED,
396 U.S. 912 (1969); STATE EX REL. POLLEY V. SUPERIOR CF. OF SANTA CRUZ
COUNTY, 81 ARIZ. 127, 302 P. 2D 263 (1956); PEEL V. STATE, 154 SO.2D
910 (FLA. DIST. CT. APP. 1963); IN RE GRAND JURY PROCEEDINGS (DUFFY V.
UNITED STATES), 473 F.2D 840 (CA8 1973); IN RE TERKELTOUB, 256 F.SUPP. 
683 (SDNY 1966).     /13/ THE SOLE ISSUE IN HICKMAN RELATED TO
MATERIALS PREPARED BY AN ATTORNEY, AND COURTS THEREAFTER DISAGREED OVER
WHETHER THE DOCTRINE APPLIED AS WELL TO MATERIALS PREPARED ON HIS
BEHALF.  SEE PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL
PROCEDURE RELATING TO DISCOVERY, 48 F.R.D. 487, 501 (1970); 4 J. MOORE,
FEDERAL PRACTICE 26.63 (8) (2D ED. 1974).  NECESSARILY, IT MUST.  THIS
VIEW IS REFLECTED IN THE FEDERAL RULES OF CIVIL PROCEDURE, SEE FED.
RULE CIV. PROC. 26 (B) (3), AND IN RULE 16 OF THE CRIMINAL RULES AS
WELL, SEE FED. RULES CRIM. PROC. 16 (B) AND (C); CF. E.CLEARY, MC
CORMICK ON EVIDENCE 208 (2D ED. 1972). 

/14/ WHAT CONSTITUTES A WAIVER WITH RESPECT TO WORK PRODUCT
MATERIALS DEPENDS, OF COURSE, UPON THE CIRCUMSTANCES.  COUNSEL
NECESSARILY MAKES USE THROUGHOUT TRIAL OF THE NOTES, DOCUMENTS, AND
OTHER INTERNAL MATERIALS PREPARED TO PRESENT ADEQUATELY HIS CLIENT'S
CASE, AND OFTEN RELIES ON THEM IN EXAMINING WITNESSES.  WHEN SO USED,
THERE NORMALLY IS NO WAIVER.  BUT WHERE, AS HERE, COUNSEL ATTEMPTS TO
MAKE A TESTIMONIAL USE OF THESE MATERIALS THE NORMAL RULES OF EVIDENCE
COME INTO PLAY WITH RESPECT TO CROSS-EXAMINATION AND PRODUCTION OF
DOCUMENTS. 

/15/ WE CANNOT ACCEPT RESPONDENT'S THAT THE DISCLOSURE ORDER
VIOLATED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. 
THIS CLAIM IS PREDICATED ON THE ASSUMPTION THAT DISCLOSURE OF A DEFENSE
INVESTIGATOR'S NOTES IN THIS AND SIMILAR CASES WILL COMPROMISE
COUNSEL'S ABILITY TO INVESTIGATE AND PREPARE THE DEFENSE CASE
THOROUGHLY.  RESPONDENT MAINTAINS THAT EVEN THE LIMITED DISCLOSURE
REQUIRED IN THIS CASE WILL IMPAIR THE RELATIONSHIP OF TRUST AND
CONFIDENCE BETWEEN CLIENT AND ATTORNEY AND WILL INHIBIT OTHER MEMBERS
OF THE "DEFENSE TEAM" FROM GATHERING INFORMATION ESSENTIAL TO THE
EFFECTIVE PREPARATION OF THE CASE.  SEE AMERICAN BAR ASSOCIATION
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, THE DEFENSE FUNCTION SEC.
3.1 (A) (APP. DRAFT 1971).  THE SHORT ANSWER IS THAT THE DISCLOSURE
ORDER RESULTED FROM RESPONDENT'S VOLUNTARY ELECTION TO MAKE
TESTIMONMIAL USE OF HIS INVESTIGATOR'S REPORT.  MOREOVER, APART FROM
THIS WAIVER, WE THINK THAT THE CONCERN VOICED BY RESPONDENT FAILS TO
RECOGNIZE THE LIMITED AND CONDITIONAL NATURE OF THE COURT'S ORDER. 

/16/ RESPONDENT ADDITIONALLY ARGUES THAT CERTAIN STATEMENTS BY THE
PROSECUTION AND THE DISTRICT COURT'S EXCLUSION OF PURPORTED EXPERT
TESTIMONY JUSTIFY REVERSAL OF THE VERDICT, AND THAT THE COURT OF
APPEALS' DECISION SHOULD BE AFFIRMED ON THOSE GROUNDS.  THE COURT OF
APPEALS REJECTED RESPONDENT'S CHALLENGE TO THE EXCLUSION OF THE
TESTIMONY OF THE PROFFERED EXPERT, 501 F.2D, AT 150 - 151.  RESPONDENT
DID NOT PRESENT THIS ISSUE OR THE QUESTION INVOLVING THE CHALLENGED
PROSECUTORIAL STATEMENTS TO THIS COURT IN A CROSS-PETITION FOR
CERTIORARI.  WITHOUT QUESTIONING OUR JURISDICTION TO CONSIDER THESE
ALTERNATIVE GROUNDS FOR AFFIRMANCE OF THE DECISION BELOW, CF. LANGNES
V. GREEN, 282 U.S. 531, 538 (1931); DANDRIDGE V. WILLIAMS, 397 U.S.
471, 475 - 476, N. 6 (1970); SEE GENERALLY STERN, WHEN TO CROSS-APPEAL
OR CROSS-PETITION--CERTAINTY OR CONFUSION?, 87 HARV. L.REV.  763
(1974), WE DO NOT CONSIDER THESE CONTENTIONS WORTHY OF CONSIDERATION. 
EACH INVOLVES AN ISSUE THAT IS COMMITTED TO THE TRIAL COURT'S
DISCRETION.  IN THE ABSENCE OF A STRONG SUGGESTION OF AN ABUSE OF THAT
DISCRETION OR AN INDICATION THAT THE ISSUES ARE OF SUFFICIENT GENERAL
IMPORTANCE TO JUSTIFY THE GRANT OF CERTIORARI WE DECLINE TO ENTERTAIN
THEM. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING. 

I CONCUR IN THE JUDGMENT AND IN PARTS II, III, AND V OF THE OPINION
OF THE COURT.  I WRITE ONLY BECAUSE OF MISGIVINGS ABOUT THE MEANING OF
PART IV OF THE OPINION.  THE COURT APPEARS TO HAVE HELD IN PART IV OF
ITS OPINION ONLY THAT WHATEVER PROTECTION THE DEFENSE INVESTIGATOR'S
NOTES OF HIS INTERVIEWS WITH WITNESSES MIGHT OTHERWISE HAVE HAD, THAT
PROTECTION WOULD HAVE BEEN LOST WHEN THE INVESTIGATOR TESTIFIED ABOUT
THOSE INTERVIEWS.  WITH THIS I AGREE ALSO.  IT SEEMS TO ME MORE
SENSIBLE, HOWEVER, TO DECIDE WHAT PROTECTION THESE NOTES HAD IN THE
FIRST PLACE BEFORE REACHING THE "WAIVER" ISSUE.  ACCORDINGLY, AND
BECAUSE I DO NOT BELIEVE THAT THE WORK-PRODUCT DOCTRINE OF HICKMAN V.
TAYLOR, 329 U.S. 495 (1947), CAN BE EXTENDED WHOLESALE FROM ITS
HISTORIC ROLE AS A LIMITATION ON THE NONEVIDENTIARY MATERIAL WHICH MAY
BE THE SUBJECT OF PRETRIAL DISCOVERY TO AN UNPRECEDENTED ROLE AS A
LIMITATION ON THE TRIAL JUDGE'S POWER TO COMPEL PRODUCTION OF
EVIDENTIARY MATTER AT TRIAL, I ADD THE FOLLOWING. 

I 

UP UNTIL NOW THE WORK-PRODUCT DOCTRINE OF HICKMAN V. TAYLOR, SUPRA,
HAS BEEN VIEWED ALMOST EXCLUSIVELY AS A LIMITATION ON THE ABILITY OF A
PARTY TO OBTAIN PRETRIAL DISCOVERY.  IT HAS NOT BEEN VIEWED AS A
"LIMITATION ON THE TRIAL COURT'S BROAD DISCRETION AS TO EVIDENTIARY
QUESTIONS AT TRIAL."  ANTE, AT 236.  THE PROBLEM DISCUSSED IN HICKMAN
V. TAYLOR AROSE PRECISELY BECAUSE, IN ADDITION TO ACCELERATING THE TIME
WHEN A PARTY COULD OBTAIN EVIDENTIARY MATTER FROM HIS ADVERSARY, /1/
THE NEW FEDERAL RULES OF CIVIL PROCEDURE GREATLY EXPANDED THE NATURE OF
THE MATERIAL SUBJECT TO PRETRIAL DISCLOSURE.  /2/  UNDER THE RULES, A
PARTY WAS, FOR THE FIRST TIME, ENTITLED TO KNOW IN ADVANCE HIS
OPPONENT'S EVIDENCE AND WAS ENTITLED TO OBTAIN FROM HIS OPPONENT
NONPRIVILEGED "INFORMATION AS TO THE EXISTENCE OR WHEREABOUTS OF FACTS"
RELEVANT TO A CASE EVEN THOUGH THE "INFORMATION" WAS NOT ITSELF
EVIDENTIARY.  HICKMAN V. TAYLOR, SUPRA, AT 501.  UTILIZING THESE RULES,
THE PLAINTIFF IN HICKMAN V. TAYLOR SOUGHT DISCOVERY OF STATEMENTS
OBTAINED BY DEFENSE COUNSEL FROM WITNESSES TO THE EVENTS RELEVANT TO
THE LAWSUIT, NOT FOR EVIDENTIARY USE BUT ONLY "TO HELP PREPARE HIMSELF
TO EXAMINE WITNESSES AND TO MAKE SURE THAT HE HAD) OVERLOOKED
NOTHING."  329 U.S., AT 513 (EMPHASIS ADDED).  IN CONCLUDING THAT THESE
STATEMENTS SHOULD NOT BE PRODUCED, THE COURT TREATED THE MATTER
ENTIRELY AS ONE INVOLVING THE PLAINTIFF'S ENTITLEMENT TO PRETRIAL
DISCOVERY UNDER THE NEW FEDERAL RULES, /3/ AND CAREFULLY LIMITED ITS
OPINION ACCORDINGLY.  THE RELEVANT RULE IN THE COURT'S VIEW, RULE 26,
ON ITS FACE REQUIRED PRODUCTION OF THE WITNESS STATEMENTS UNLESS THEY
WERE PRIVILEGED.  NONETHELESS, THE COURT EXPRESSLY STATED THAT THE
REQUEST FOR WITNESS STATEMENTS WAS TO BE DENIED "NOT BECAUSE THE
SUBJECT MATTER IS PRIVILEGED" (ALTHOUGH NOTING THAT A WORK-PRODUCT
"PRIVILEGE" APPLIES IN ENGLAND, 329 U.S., AT 510 N. 9) AS THAT CONCEPT
WAS USED IN THE RULES, BUT BECAUSE THE REQUEST "FALLS OUTSIDE THE ARENA
OF DISCOVERY."  ID., AT 510 (EMPHASIS ADDED).  THE COURT STATED THAT IT
IS ESSENTIAL THAT A LAWYER WORK WITH A CERTAIN DEGREE OF PRIVACY, AND
CONCLUDED THAT THE EFFECT OF GIVING ONE LAWYER'S WORK (PARTICULARLY HIS
STRATEGY, LEGAL THEORIES, AND MENTAL IMPRESSIONS) TO ANOTHER WOULD HAVE
A "DEMORALIZING" EFFECT ON THE LEGAL PROFESSION.  THE COURT THEN NOTED
THAT WITNESS STATEMENTS MIGHT BE ADMISSIBLE IN EVIDENCE UNDER SOME
CIRCUMSTANCES AND MIGHT BE USABLE TO IMPEACH OR CORROBORATE A WITNESS. 
HOWEVER, IT CONCLUDED THAT IN THE CASE BEFORE IT THE PLAINTIFF WANTED
THE STATEMENTS FOR PREPARATION ONLY AND HAD SHOWN NO REASON WHY HE
COULD NOT OBTAIN EVERYTHING HE SOUGHT BY DOING HIS OWN WORK RATHER THAN
UTILIZING THAT OF HIS ADVERSARY. 

THE CONCLUSION THAT THE WORK PRODUCT OF A LAWYER IS NOT "PRIVILEGED
MADE IT MUCH MORE DIFFICULT FOR THE COURT TO SUPPORT ITS RESULT. 
NOTHING EXPRESSED IN THE RULE SUPPORTED ITS RESULT, AND THE COURT WAS
FORCED TO EXPLAIN ITS DECISION BY STATING: 

" WHEN RULE 26 AND THE OTHER DISCOVERY RULES WERE ADOPTED, THIS
COURT AND THE MEMBERS OF THE BAR IN GENERAL CERTAINLY DID NOT BELIEVE
OR CONTEMPLATE THAT ALL THE FILED AND MENTAL PROCESSES OF LAWYERS WERE
THEREBY OPENED TO THE FREE SCRUTINY OF THEIR ADVERSARIES."  ID., AT
514.  (EMPHASIS ADDED.)  I AM LEFT WITH THE FIRM CONVICTION THAT THE
COURT AVOIDED THE EASIER ROUTE TO ITS DECISION FOR A REASON.  TO HAVE
HELD AN ATTORNEY'S WORK PRODUCT TO BE "PRIVILEGED" WOULD HAVE BEEN TO
LIMIT ITS USE AT TRIAL AS EVIDENCE IN THOSE CASES IN WHICH THE WORK
PRODUCT QUALIFIED AS EVIDENCE, SEE REPORT OF PROPOSED AMENDMENTS TO
RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED STATES,
5 F.R.D. 433, 460 (1946), AND, AS MR. JUSTICE JACKSON STATED IN HIS
CONCURRING OPINION, A PARTY IS ENTITLED TO ANYTHING WHICH IS "EVIDENCE
IN HIS CASE."  329 U.S., AT 515.  /4/ 

SINCE HICKMAN V. TAYLOR, SUPRA, CONGRESS, THE CASES, AND THE
COMMENTATORS HAVE UNIFORMLY CONTINUED TO VIEW THE "WORK PRODUCT"
DOCTRINE SOLELY AS A LIMITATION ON PRETRIAL DISCOVERY AND NOT AS A
QUALIFIED EVIDENTIARY PRIVILEGE.  IN 1970, CONGRESS BECAME INVOLVED
WITH THE PROBLEM FOR THE FIRST TIME IN THE CIVIL AREA.  IT DID SO
SOLELY BY ACCEPTING A PROPOSED AMENMENT TO FED. RULE CIV. PROC. 26,
WHICH INCORPORATED MUCH OF WHAT THE COURT HELD IN HICKMAN V. TAYLOR,
SUPRA, WITH RESPECT TO PRETRIAL DISCOVERY.  SEE ADVISORY COMMITTEE'S
EXPLANATORY STATEMENT, PROPOSED AMENDMENTS TO THE FEDERAL RULES OF
CIVIL PROCEDURE RELATING TO DISCOVERY, 48 F.R.D. 487 (1970).  IN THE
CRIMINAL AREA, CONGRESS HAS ENACTED 18 U.S.C. SEC. 3500 AND ACCEPTED
FED. RULE CRIM. PROC. 16 (C).  THE FORMER PREVENTS PRETRIAL DISCOVERY
OF WITNESS STATEMENTS FROM THE GOVERNMENT; THE LATTER PREVENTS PRETRIAL
DISCOVERY OF WITNESS STATEMENTS FROM THE DEFENSE.  NEITHER LIMITS THE
POWER OF THE TRIAL COURT TO ORDER PRODUCTION AS EVIDENCE OF PRIOR
STATEMENTS OF WITNESSES WHO HAVE TESTIFIED AT TRIAL.  /5/ 

WITH THE EXCEPTION OF MATERIALS OF THE TYPE DISCUSSED IN PART II,
INFRA, RESEARCH HAS UNCOVERED NO APPLICATION OF THE WORK-PRODUCT RULE
IN THE LOWER COURTS SINCE HICKMAN TO PREVENT PRODUCTION OF EVIDENCE--
IMPEACHING OR OTHERWISE--AT TRIAL; /6/  AND THERE ARE SEVERAL EXAMPLES
OF CASES REJECTING SUCH AN APPROACH.  /7/ 

SIMILARLY, THE COMMENTATORS HAVE ALL TREATED THE ATTORNEY WORK
PRODUCT RULE SOLELY AS A LIMITATION ON PRETRIAL DISCOVERY, E. G., 4 J.
MOORE, FEDERAL PRACTICE 26.  - 63 - 26.64 (2D ED. 1974); 8 C. WRIGHT &
A. MILLER, FEDERAL PRACTICE AND PROCEDURE SEC. 2026 (1970); 2 A W.
BARRON & A. HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE SEC. 652 (WRIGHT
ED. 1961), AND SOME HAVE EXPRESSLY STATED THAT IT DOES NOT APPLY TO
EVIDENTIARY MATTER.  F. JAMES, CIVIL PROCEDURE 211 N. 13 (1965); 4 J.
MOORE, FEDERAL PRACTICE 16.23 (8.  - 4) (1963). 

THE REASONS FOR LARGELY CONFINING THE WORK-PRODUCT RULE TO ITS ROLE
AS A LIMITATION ON PRETRIAL DISCOVERY ARE COMPELLING.  FIRST OF ALL,
THE INJURY TO THE FACTFINDING PROCESS IS FAR GREATER WHERE A RULE KEEPS
EVIDENCE FROM THE FACTFINDER THAN WHEN IT SIMPLY KEEPS ADVANCE
DISCLOSURE OF EVIDENCE FROM A PARTY OR KEEPS FROM HIM LEADS TO EVIDENCE
DEVELOPED BY HIS ADVERSARY AND WHICH HE IS JUST AS WELL ABLE TO FIND BY
HIMSELF.  IN THE MAIN, WHERE A PARTY SEEKS TO DISCOVER A STATEMENT MADE
TO AN OPPOSING PARTY IN ORDER TO PREPARE FOR TRIAL, HE CAN OBTAIN THE
"SUBSTANTIAL EQUIVALENT . . . BY OTHER MEANS," FED. RULE CIV. PROC. 26
(B) (3), I. E., BY INTERVIEWING THE WITNESS HIMSELF.  A PRIOR
INCONSISTENT STATEMENT IN THE POSSESSION OF HIS ADVERSARY, HOWEVER,
WHEN SOUGHT FOR EVIDENTIARY PURPOSES--I. E., TO IMPEACH THE WITNESS
AFTER HE TESTIFIES--IS FOR THAT PURPOSE UNIQUE.  BY THE SAME TOKEN, THE
DANGER PERCEIVED IN HICKMAN THAT EACH PARTY TO A CASE WILL DECLINE TO
PREPARE IN THE HOPES OF EVENTUALLY USING HIS ADVERSARY'S PREPARATION IS
ABSENT WHEN DISCLOSURE WILL TAKE PLACE ONLY AT TRIAL.  INDEED, IT IS
VERY DIFFICULT TO ARTICULATE A REASON WHY STATEMENTS ON THE SAME
SUBJECT MATTER AS A WITNESS' TESTIMONY SHOULD NOT BE TURNED OVER TO AN
ADVERSARY AFTER THE WITNESS HAS TESTIFIED.  THE STATEMENT WILL EITHER
BE CONSISTENT WITH THE WITNESS' TESTIMONY, IN WHICH CASE IT WILL BE
USELESS AND DISCLOSURE WILL BE HARMLESS; OR IT WILL BE INCONSISTENT AND
OF UNQUESTIONED VALUE TO THE JURY.  ANY CLAIM THAT DISCLOSURE OF SUCH A
STATEMENT WOULD LEAD THE TRIAL INTO COLLATERAL AND CONFUSING ISSUES WAS
REJECTED BY THIS COURT IN JENCKS V. UNITED STATES, 353 U.S. 657 (1957),
AND BY CONGRESS IN THE LEGISLATION WHICH FOLLOWED. 

THE STRONG NEGATIVE IMPLICATION IN HICKMAN V. TAYLOR, SUPRA, THAT
THE WORK-PRODUCT RULE DOES NOT APPLY TO EVIDENTIARY REQUESTS AT TRIAL
BECAME A HOLDING IN JENCKS V. UNITED STATES, SUPRA.  THERE A DEFENDANT
IN A CRIMINAL CASE SOUGHT PRODUCTION BY THE GOVERNMENT AT TRIAL OF
PRIOR STATEMENTS MADE BY ITS WITNESSES ON THE SAME SUBJECT MATTER AS
THEIR TESTIMONY.  THE GOVERNMENT ARGUED, INTER ALIA, THAT PRODUCTION
WOULD VIOLATE THE "'LEGITIMATE INTEREST THAT EACH PARTY--INCLUDING THE
GOVERNMENT--HAS IN SAFEGUARDING THE PRIVACY OF ITS FILES.'"  353 U.S.,
AT 670.  THE COURT HELD AGAINST THE GOVERNMENT.  THE COURT SAID THAT TO
DENY DISCLOSURE OF PRIOR STATEMENTS WHICH MIGHT BE USED TO IMPEACH THE
WITNESSES WAS TO "DENY THE ACCUSED EVIDENCE RELEVANT AND MATERIAL TO
HIS DEFENSE," ID., AT 667 (EMPHASIS ADDED).  ALSO REJECTED AS
UNREALISTIC WAS ANY RULE WHICH WOULD REQUIRE THE DEFENDANT TO
DEMONSTRATE THE IMPEACHMENT VALUE OF THE PRIOR STATEMENTS BEFORE
DISCLOSURE, /8/ AND THE COURT HELD THAT ENTITLEMENT TO DISCLOSURE FOR
USE IN CROSS-EXAMINATION IS "ESTABLISHED WHEN THE REPORTS ARE SHOWN TO
RELATE TO THE TESTIMONY OF THE WITNESS."  ID., AT 669.  THUS, NOT ONLY
DID THE COURT REJECT THE NOTION THAT THERE WAS A "WORK PRODUCT"
LIMITATION ON THE TRIAL JUDGE'S DISCRETION TO ORDER PRODUCTION OF
EVIDENTIARY MATTER AT TRIAL, BUT IT WAS AFFIRMATIVELY HELD THAT PRIOR
STATEMENTS OF A WITNESS ON THE SUBJECT OF HIS TESTIMONY ARE THE KIND OF
EVIDENTIARY MATTER TO WHICH AN ADVERSARY IS ENTITLED.     INDEED, EVEN
IN THE PRETRIAL DISCOVERY AREA IN WHICH THE WORK-PRODUCT RULE DOES
APPLY, WORK-PRODUCT NOTIONS HAVE BEEN THOUGHT INSUFFICIENT TO PREVENT
DISCOVERY OF EVIDENTIARY AND IMPEACHMENT MATERIAL.  IN HICKMAN V.
TAYLOR, 329 U.S., AT 511, THE COURT STATED: 

     " WE DO NOT MEAN TO SAY THAT ALL WRITTEN MATERIALS OBTAINED OR

  PREPARED BY AN ADVERSARY'S COUNSEL WITH AN EYE TOWARD LITIGATION

  ARE NECESSARILY FREE FROM DISCOVERY IN ALL CASES.  WHERE RELEVANT

  AND NONPRIVILEGED FACTS REMAIN HIDDEN IN AN ATTORNEY'S FILE AND

  WHERE PRODUCTION OF THOSE FACTS IS ESSENTIAL TO THE PREPARATION

OF ONE'S CASE, DISCOVERY MAY PROPERLY BE HAD.  ##HC250 SUCH

  WRITTEN STATEMENTS AND DOCUMENTS MIGHT, UNDER CERTAIN

CIRCUMSTANCES, BE ADMISSIBLE IN EVIDENCE OR GIVE CLUES AS TO THE

  EXISTENCE OR LOCATION OF RELEVANT FACTS.  OR THEY MIGHT BE USEFUL

  FOR PURPOSES OF IMPEACHMENT OR CORROBORATION."  (EMPHASIS
ASSED.) 

MR. JUSTICE JACKSON, IN CONCURRING, WAS EVEN MORE EXPLICIT ON THIS
POINT.  SEE SUPRA, AT 245.  PURSUANT TO THIS LANGUAGE, THE LOWER COURTS
HAVE ORDERED EVIDENCE TO BE TURNED OVER PRETRIAL EVEN WHEN IT CAME INTO
BEING AS A RESULT OF THE ADVERSARY'S EFFORTS IN PREPARATION FOR TRIAL. 
/9/ A MEMBER OF A DEFENSE TEAM WHO WITNESSES AN OUT-OF-COURT STATEMENT
OF SOMEONE WHO LATER TESTIFIES AT TRIAL IN A CONTRADICTORY FASHION
BECOMES AT THAT MOMENT A WITNESS TO A RELEVANT AND ADMISSIBLE EVENT,
AND THE CASES CITED ABOVE WOULD DICTATE DISCLOSURE OF ANY REPORTS HE
MAY HAVE WRITTEN ABOUT THE EVENT.  /10/  SINCE PRIOR STATEMENTS ARE
INADMISSIBLE HEARSAY UNTIL THE WITNESS TESTIFIES, THERE IS NO OCASION
FOR ORDERING REPORTS OF SUCH STATEMENTS PRODUCED AS EVIDENCE PRETRIAL. 
HOWEVER, SOME COURTS HAVE ORDERED WITNESS STATEMENTS PRODUCED PRETRIAL
IN THE LIKEHOOD THAT THEY WILL BECOME IMPEACHMENT EVIDENCE.  /11/
MOREOVER, WHERE ACCESS TO WITNESSES OR TO THEIR INFORMATION IS UNEQUAL,
DISCOVERY OF THEIR STATEMENTS IS OFTEN GRANTED SOLELY TO HELP A PARTY
PREPARE FOR TRIAL REGARDLESS OF ANY EVENTUAL EVIDENTIARY VALUE OF THE
OUT-OF-COURT STATEMENTS.  SEE PROPOSED AMENDMENTS TO THE FEDERAL RULES
OF CIVIL PROCEDURE RELATING TO DISCOVERY, 48 F.R.D., AT 501. 

ACCORDINGLY, IT WOULD APPEAR THAT WITH ONE EXCEPTION TO BE DISCUSSED
BELOW, THE WORK-PRODUCT NOTIONS OF HICKMAN V. TAYLOR, SUPRA, IMPOSE NO
RESTRICTIONS ON THE TRIAL JUDGE'S ORDERING PRODUCTION OF EVIDENTIARY
MATTER AT TRIAL; THAT THESE NOTIONS APPLY IN ONLY A VERY LIMITED WAY,
IF AT ALL, TO A PARTY'S EFFORTS TO OBTAIN EVIDENCE PRETRIAL PURSUANT TO
AVAILABLE DISCOVERY DEVICES; AND THAT THESE NOTIONS SUPPLY ONLY A
QUALIFIED DISCOVERY IMMUNITY WITH RESPECT TO WINESS STATEMENTS IN ANY
EVENT.  /12/

        II 

IN ONE OF ITS ASPECTS, THE RULE OF HICKMAN V. TAYLOR, SUPRA, HAS
APPLICATION TO EVIDENTIARY REQUESTS AT TRIAL.  BOTH THE MAJORITY AND
THE CONCURRING OPINIONS IN HICKMAN V. TAYLOR WERE AT PAINS TO
DISTINGUISH BETWEEN PRODUCTION OF STATEMENTS WRITTEN BY THE WITNESS AND
IN THE POSSESSION OF THE LAWYER, AND THOSE STATEMENTS WHICH WERE MADE
ORALLY BY THE WITNESS AND WRITTEN DOWN BY THE LAWYER.  PRODUCTION AND
USE OF ORAL STATEMENTS WRITTEN DOWN BY THE LAWYER WOULD CREATE A
SUBSTANTIAL RISK THAT THE LAWYER WOULD HAVE TO TESTIFY.  /13/ THE
MAJORITY SAID THAT THIS WOULD "MAKE THE ATTORNEY MUCH LESS AN OFFICER
OF THE COURT AND MUCH MORE AN ORDINARY WITNESS."  329 U.S., AT 513. 
MR. JUSTICE JACKSON, IN CONCURRING, STATED: 

     " EVERY LAWYER DISLIKES TO TAKE THE WITNESS STAND AND WILL DO

  SO ONLY FOR GRAVE REASONS.  THIS IS PARTLY BECAUSE IT IS NOT HIS

  ROLE; HE IS ALMOST INVARIABLY A POOR WITNESS.  BUT HE STEPS OUT

  OF PROFESSIONAL CHARACTER TO DO IT.  HE REGRETS IT; THE

  PROFESSION DISCOURAGES IT.  BUT THE PRACTICE ADVOCATED HER IS ONE

  WHICH WOULD FORCE HIM TO BE A WITNESS, NOT AS TO WHAT HE HAS SEEN

  OR DONE BUT AS TO OTHER WITNESSES' STORIES, AND NOT BECAUSE HE

WANTS TO DO SO BUT IN SELF-DEFENSE."  ID., AT 517. 

THE LOWER COURTS, TOO, HAVE FROWNED ON ANY PRACTICE UNDER WHICH AN
ATTORNEY WHO TRIES A CASE ALSO TESTIFIES AS A WITNESS, AND TRIAL
ATTORNEYS HAVE BEEN PERMITTED TO TESTIFY ONLY IN CERTAIN
CIRCUMSTANCES.  /14/ 

THE REMARKS OF THE COURT IN HICKMAN V. TAYLOR, SUPRA, WHILE MADE IN
THE CONTEXT OF A REQUEST FOR PRETRIAL DISCOVERY HAVE APPLICATION TO THE
EVIDENTIARY USE OF LAWYERS' MEMORANDA OF WITNESS INTERVIEWS AT TRIAL. 
IT IS UNNECESSARY, HOWEVER, TO DECIDE IN THIS CASE WHETHER THE POLICIES
AGAINST PUTTING IN ISSUE THE CREDIBILITY OF THE LAWYER WHO WILL SUM UP
TO THE JURY OUTWEIGH THE JURY'S INTEREST IN OBTAINING ALL RELEVANT
INFORMATION; AND WHETHER JENCKS V. UNITED STATES, SUPRA, AND 18 U.S.C.
SEC. 3500 ARE TO BE VIEWED AS EXPRESSING A PREFERENCE FOR DISCLOSURE OF
ALL FACTS.  /15/  IN THIS CASE, THE CREATOR OF THE MEMORANDUM WAS NOT
THE TRIAL LAWYER BUT AN INVESTIGATOR /16/ AND HE WAS, IN ANY EVENT, TO
BE CALLED AS A WITNESS BY THE DEFENSE.  ACCORDINGLY, I WOULD REVERSE
THE JUDGMENT BELOW BECAUSE, QUITE APART FROM WAIVER, THE WORK-PRODUCT
RULE OF HICKMAN V. TAYLOR, SUPRA, HAS NO APPLICATION TO THE REQUEST AT
TRIAL FOR EVIDENTIARY AND IMPEACHMENT MATERIAL MADE IN THIS CASE. 

/1/ UNDER CRIMINAL DISCOVERY RULES THE TIME FACTOR IS NOT AS GREAT
AS MIGHT OTHERWISE APPEAR.  FEDERAL RULE CRIM. PROC. 16 PERMITS
DISCOVERY THROUGH THE TIME OF TRIAL; AND UNDER FED. RULE CRIM. PROC. 17
(C), EVIDENTIARY MATTER MAY BE OBTAINED PURSUANT TO SUBPOENA IN ADVANCE
OF TRIAL IN THE DISCRETION OF THE TRIAL JUDGE. 

/2/ PRIOR TO THE FEDERAL RULES, REQUESTS FOR WITNESS STATEMENTS WERE
GRANTED OR DENIED ON THE BASIS OF WHETHER THEY WERE EVIDENCE AND
NONPRIVILEGED.  IN THE MAIN, PRODUCTION WAS DENIED, EITHER BECAUSE
WITNESS STATEMENTS WERE NOT EVIDENCE (THEY ARE INADMISSIBLE HEARSAY
UNTIL AND UNLESS THE WITNESS TESTIFIES); BECAUSE A PARTY IS NOT
ENTITLED TO ADVANCE KNOWLEDGE OF HIS ADVERSARY'S CASE; OR BECAUSE THE
STATEMENTS WERE MADE BY THE CLIENT OR HIS AGENT TO HIS ATTORNEY AND
THUS COVERED BY THE ATTORNEY-CLIENT PRIVILEGE.  4 J. MOORE, FEDERAL
PRACTICE 26.63 (3) (2D ED. 1974), AND CASES CITED THEREIN.  THE CASES
DID NOT HOLD THAT WITNESS STATEMENTS WERE GENERALLY PRIVILEGED, IF THEY
WERE EVIDENTIARY, AND HAD NO CAUSE TO DECIDE WHETHER A WORK-PRODUCT
NOTION SHOULD PROTECT THEM FROM DISCOVERY, SINCE THEY WERE
NONDISCOVERABLE ANYWAY UNDER APPLICABLE DISCOVERY RULES.  BUT SEE
WALKER V. STRUTHERS, 273 ILL. 387, 112 N.E. 961 (1961). 

/3/ MR. JUSTICE JACKSON'S CONCURRENCE IS EVEN MORE EXPRESS ON THIS
POINT.  IT STATES:  "(THE QUESTION IS SIMPLY WHETHER SUCH A DEMAND IS
AUTHORIZED BY THE RULES RELATING TO VARIOUS ASPECTS OF 'DISCOVERY.'" 
329 U.S., AT 514. 

/4/ MR. JUSTICE JACKSON ALSO EMPHASIZED THAT THE WITNESS STATEMENTS
INVOLVED IN HICKMAN V. TAYLOR WERE NEITHER EVIDENCE NOR PRIVILEGED. 
ID., AT 516.  INDEED, MOST OF THE MATERIAL DESCRIBED BY THE COURT AS
FALLING UNDER THE WORK-PRODUCT UMBRELLA DOES NOT QUALIFY AS EVIDENCE. 
A LAWYER'S MENTAL IMPRESSIONS ARE ALMOST NEVER EVIDENCE AND OUT-OF
COURT STATEMENTS OF WITNESS ARE GENERALLY INADMISSIBLE HEARSAY.  SUCH
STATEMENTS BECOME EVIDENCE ONLY WHEN THE WITNESS TESTIFIES AT TRIAL,
AND ARE THEN USUALLY IMPEACHMENT EVIDENCE ONLY.  THIS CASE, OF COURSE,
INVOLVES A SITUATION IN WHICH THE RELEVANT WITNESS WAS TO TESTIFY AND
THUS PRESENTS THE QUESTION--NOT INVOLVED IN HICKMAN V. TAYLOR--WHETHER
PRIOR STATEMENTS SHOULD BE DISCLOSED UNDER THE TRIAL JUDGE'S POWER OVER
EVIDENTIARY MATTERS AT TRIAL. 

/5/ IN N. 13 OF ITS OPINION, THE COURT CITES FED. RULE CRIM. PROC.
16 (C), AS CONTAINING THE WORK-PRODUCT RULE.  IN N. 10, THE COURT
CORRECTLY NOTES THAT RULE 16 (C) IS NOT "DIRECTED TO THE COURT'S
CONTROL OF EVIDENTIARY QUESTIONS ARISING AT TRIAL."  IT SEEMS TO ME
THAT THIS SUPPLIES A BETTER GROUND FOR THE COURT'S DECISION THAN
"WAIVER." 

/6/ THE MAJORITY DOES CITE ONE CASE, IN RE TERKELTOUB, 256 F.SUPP. 
683 (SDNY 1966), IN WHICH THE COURT REFERRED TO THE WORK-PRODUCT
DOCTRINE IN PREVENTING THE GOVERNMENT FROM INQUIRING OF A LAWYER BEFORE
THE GRAND JURY WHETHER HE HAD PARTICIPATED IN SUBORNING PERJURY OF A
PROSPECTIVE WITNESS WHILE PREPARING A CRIMINAL CASE FOR TRIAL.  IN ANY
EVENT, A GRAND JURY INVESTIGATION IS IN SOME RESPECTS SIMILAR TO
PRETRIAL DISCOVERY.  COMPARE IN RE GRAND JURY PROCEEDINGS (DUFFY V.
UNITED STATES), 473 F.2D 840 (CA8), CERT. DENIED, 352 U.S. 833 (1956). 
THE PROPER SCOPE OF INQUIRY IS AS BROAD, AND IT CAN BE USED AS A WAY OF
PREPARING FOR THE LATER CRIMINAL TRIAL.  THERE IS FOR EXAMPLE A SPLIT
OF AUTHORITY ON WHETHER THE WORK-PRODUCT RULE APPLIES TO IRS TAX
INVESTIGATIONS.  COMPARE UNITED STATES V. MC KAY, 372 F.2D 174 (CA5
1967), WITH UNITED STATES V. BROWN, 478 F.2D 1038 (CA7 1973). 

/7/ SHAW V. WUTTKE, 28 WIS. 2D 448, 454 - 456, 137 N.W. 2D 649, 652 -
653 (1965); STATE EX REL. STATE HIGHWAY COMM'N V. STEINKRAUS, 76 N.M.
2D 617, 620 - 621, 417 P. 2D 431, 432 - 433 (1966); E.I. DU PONT DE
NEMOURS & CO. V. PHILLIPS PETROLEUM CO., 24 F.R.D. 416 (DEL. 1959);
UNITED STATES V. MATLES, 154 F.SUPP.  574 (EDNY 1957); UNITED STATES V.
SUN OIL CO., 16 F.R.D. 533 (ED PA. 1954); UNITED STATES V. GATES, 35
F.R.D. 524 (COLO. 1964). 

/8/ THE COURT IN JENCKS QUOTED THE LANGUAGE OF MR. CHIEF JUSTICE
MARSHALL IN UNITED STATES V. BURR, 25 F.CAS.  187, 191 (VA. 1807): 

"' NOW, IF A PAPER BE IN POSSESSION OF THE OPOSITE PARTY, WHAT
STATEMENT OF ITS CONTENTS OR APPLICABILITY CAN BE EXPECTED FROM THE
PERSON WHO CLAIMS ITS PRODUCTION, HE NOT PRECISELY KNOWING ITS
CONTENTS?'"  353 U.S. 657, 668 N. 12 (1957). 

/9/ CUMMINGS V. BELL TELEPHONE CO. OF PENNSYLVANIA, 47 F.R.D. 373
(ED PA. 1968); MARKS V. GAS SERVICE CO., 168 F.SUPP.  487 (WD MO.
1958); MAGINNIS V. WESTINGHOUSE ELECTRIC CORP., 207 F.SUPP.  739 (ED
LA. 1962); JULIUS HYMAN & CO. V. AMERICAN MOTORISTS INS. CO., 17 F.R.D.
386 (COLO. 1955); PARRETT V. FORD MOTOR CO., 47 F.R.D. 22 (WD MO.
1968); SCUDERI V. BOSTON INS. CO., 34 F.R.D. 463, 468 (DEL. 1964) (EACH
INVOLVING A SITUATION IN WHICH A MEMBER OF A LITIGATION TEAM WITNESSED
AN EVENT OR SCENE IN THE COURSE OF PREPARING A CASE FOR TRIAL AND THE
COURT ORDERED DISCLOSURE OF HIS REPORT OF THE EVENT); BOURGET V.
GOVERNMENT EMPLOYEES INS. CO., 48 F.R.D. 29 (CONN. 1969); MC CULLOUGH
TOOL CO. V. PAN GEO ATLAS CORP., 40 F.R.D. 490 (SD TEX. 1966); O' BOYLE
V. LIFE INS. CO. OF NORTH AMERICA, 299 F.SUPP.  704 (WD MO. 1969).  CF.
LAROCCA V. STATE FARM MUTUAL AUTOMOBILE INS. CO., 47 F.R.D. 278 (WD PA.
1969), AND KENNEDY V. SENYO, 52 F.R.D. 34 (WD PA. 1971) (IN EACH OF
WHICH THE PREPARATION FOR TRIAL WAS THE SUBJECT OF THE SUIT); SEE ALSO
NATTA V. HOGAN, 392 F.2D 686, 693 (CA10 1968); F.JAMES, CIVIL PROCEDURE
211 (1965). 

/10/ THE HOLDING IN JENCKS V. UNITED STATES, 353 U.S. 657 (1957),
WOULD PUT TO REST ANY CLAIM THAT SUCH PRIOR STATEMENT WOULD BE
DISCLOSABLE ONLY IF THE ADVERSARY ESTABLISHED ITS EVIDENTIARY VALUE
AHEAD OF TIME BY SPECIFIC PROOF THAT IT WAS INCONSISTENT. 

/11/ VETTER V. LOUETT, 44 F.R.D. 465 (WD TEX. 1968); MC DONALD V.
PROWDLEY, 38 F.R.D. 1 (WD MICH. 1965); TANNENBAUM V. WALKER, 16 F.R.D.
570 (ED PA. 1954); FULTON V. SWIFT, 43 F.R.D. 166 (MONT. 1967); REPUBIC
GEAR CO. V. BORG-WARNER CORP., 381 F.2D 551, 557 - 558 (CA2 1967) (IN
CAMERA INSPECTION).  CF. GOOSMAN V. A. DUIE PYLE, INC., 320 F.2D 45
(CA4 1963).  FOR CASES CONTRA SEE 4 J. MOORE, FEDERAL PRACTICE 26.64
(3) N. 14 (2D ED. 1974). 

/12/ THE MAJORITY STATES: 

" MOREOVER, THE CONCERNS REFLECTED IN THE WORK PRODUCT DOCTRINE DO
NOT DISAPPEAR ONCE TRIAL HAS BEGUN.  DISCLOSURE OF AN ATTORNEY'S
EFFORTS AT TRIAL, AS SURELY AS DISCLOSURE DURING PRETRIAL DISCOVERY,
COULD DISRUPT THE ORDERLY DEVELOPMENT AND PRESENTATION OF HIS CASE.  WE
NEED NOT, HOWEVER, UNDERTAKE HERE TO DELINEATE THE SCOPE OF THE
DOCTRINE AT TRIAL, FOR IN THIS INSTANCE IT IS CLEAR THAT THE DEFENSE
WAIVED SUCH RIGHT AS MAY HAVE EXISTED TO INVOKE ITS PROTECTIONS." 
ANTE, AT 239. 

AS NOTED ABOVE, THE IMPORTANT QUESTION IS NOT WHEN THE DOCUMENT IN
ISSUE IS CREATED OR EVEN WHEN IT IS TO BE PRODUCED.  THE IMPORTANT
QUESTION IS WHETHER THE DOCUMENT IS SOUGHT FOR EVIDENTIARY OR
IMPEACHMENT PURPOSES OR WHETHER IT IS SOUTGHT FOR PREPARATION PURPOSES
ONLY.  OF COURSE, A PARTY SHOULD NOT BE ABLE TO DISCOVER HIS OPPONENT'S
LEGAL MEMORANDA OR STATEMENTS OF WITNESSES NOT CALLED WHETHER HIS
REQUEST IS AT TRIAL OR BEFORE TRIAL.  IN SOFOR AS SUCH A REQUEST IS
MADE UNDER THE APPLICABLE DISCOVERY RULES, IT IS WITHIN THE RULE OF
HICKMAN V. TAYLOR EVEN THOUGH MADE AT TRIAL.  INSOFAR AS THE REQUEST
SEEKS TO INVOKE THE TRIAL JUDGE'S DISCRETION OVER EVIDENTIARY MATTERS
AT TRIAL, THE RULE OF HICKMAN V. TAYLOR IS UNNECESSARY, SINCE NO ONE
COULD EVER SUGGEST THAT LEGAL MEMORANDA OR HEARSAY STATEMENTS ARE
EVIDENCE.  IF THIS IS ALL THE MAJORITY MEANS BY THE ABOVE-QUOTED
LANGUAGE, I AGREE. 

/13/ IF THE WITNESS DOES NOT ACKNOWLEDGE MAKING AN INCONSISTENT
STATEMENT TO THE LAWYER--EVEN THOUGH THE LAWYER RECORDED IT--THE CROSS
EXAMINER MAY NOT OFFER THE DOCUMENT IN EVIDENCE WITHOUT AT LEAST
CALLING THE LAWYER AS A WITNESS TO AUTHENTICATE THE DOCUMENT AND
OTHERWISE TESTIFY TO THE PRIOR STATEMENT. 

/14/ UNITED STATES V. PORTER, 139 U.S.APP.  D.C. 19, 429 F.2D 203
(1970); UNITED STATES V. FIORILLO, 376 F.2D 180 (CA2 1967); GAJEWSKI V.
UNITED STATES, 321 F.2D 261 (CA8 1963), CERT. DEN., 375 U.S. 968
(1964); UNITED STATES V. NEWMAN, 476 F.2D 733 (CA3 1973); TRAVELERS
INS. CO. V. DYKES, 395 F.2D 747 (CA5 1968); UNITED STATES V. ALU, 246
F.2D 29 (CA2 1957); UNITED STATES V. CHIARELLA, 184 F.2D 903, MODIFIED
ON REHEARING, 187 F.2D 12 (CA2 1950), VACATED IN PART, 341 U.S. 946,
CERT. DENIED SUB NOM. STANCIN V. UNITED STATES, 341 U.S. 956 (1951)
UNITED STATES V. CLANCY, 276 F.2D 617 (CA7 1960), REVERSED ON OTHER
GROUNDS, 365 U.S. 312 (1961).     /15/ THE CASES HAVE HELD RECORDS OF
WITNESS STATEMENTS MADE BY PROSECUTORS TO BE DISCLOSABLE UNDER 18
U.S.C. SEC. 3500, UNITED STATES V. HILBRICH, 341 F.2D 555 (CA7), CERT.
DEN., 381 U.S. 941, REH. DEN., 382 U.S. 874 (1965), REH. DEN., 384 U.S.
1028 (1966); UNITED STATER V. AVILES, 315 F.2D 186 (CA2 1963), SAUNDERS
V. UNITED STATES, 114 U.S.APP.  D.C. 345, 316 F.2D 346 (1963); UNITED
STATES V. SMALDONE, 484 F.2D 311 (CA10 1973), CERT. DEN., 415 U.S. 915
(1974).  CF. CANADAY V. UNITED STATES, 354 F.2D 849 (CA8 1966).  IN
STATE V. BOWEN, 104 ARIZ. 138, 449 P.2D 603 (1969), THE COURT REACHED A
CONTRARY RESUAL UNDER STATE LAW. 

/16/ A CONFLICT AROSE AMONG LOWER FEDERAL COURTS OVER THE QUESTION
WHETHER THE WORK PRODUCT OF MEMBERS OF A LITIGATION TEAM OTHER THAN THE
LAWYER WAS PROTECTED FROM DISCOVERY BY THE RULE OF HICKMAN V. TAYLOR,
SUPRA.  GHENT, DEVELOPMENT, SINCE HICKMAN V. TAYLOR, OF ATTORNEY'S "
WORK PRODUCT" DOCTRINE, 35 A.L.R. 3D 438 - 440 (SEC. 7 (A) AND (B) AND
453 - 455 (SEC. 15 (A) AND (B) (1971); PROPOSED AMENDMENTS TO THE
FEDERAL RULES OF CIVIL PROCEDURE RELATING TO DISCOVERY, 48 F.R.D. 487,
501 - 502 (1970).  WITH RESPECT TO DISCOVERY IN CIVIL CASES UNDER FED.
RULE CIV. PROC. 26, THE CONFLICT WAS RESOLVED IN THE 1970 AMENDMENTS BY
AFFORDING PROTECTION TO DOCUMENTS BY A PARTY'S "REPRESENTATIVE,"
WHETHER A LAWYER OR NOT.  WHERE THE PURPOSE OF THE RULE PROTECTING THE
WORK PRODUCT IS TO REMOVE THE INCENTIVE A PARTY MIGHT OTHERWISE HAVE TO
RELY SOLELY ON HIS OPPONENT'S PREPARATION, IT IS SENSIBLE TO TREAT
PREPARATION BY AN ATTORNEY AND AN INVESTIGATOR ALIKE.  HOWEVER, THE
POLICY AGAINST LAWYERS TESTIFYING APPLIES ONLY TO THE LAWYER WHO TRIES
THE CASE. 

PAUL L. FRIEDMAN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEFS WERE SOLICITOR GENERAL BORK, ACTING ASSISTANT ATTORNEY
GENERAL KEENEY, DEPUTY SOLICITOR GENERAL FREY, AND SIDNEY M. GLAZER. 

NICHOLAS R. ALLIS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS JOHN K. VAN DE KAMP. 

(BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JOHN J.
CLEARY FOR THE CALIFORNIA PUBLIC DEFENDERS ASSN. ET AL., AND BY THE
FEDERAL PUBLIC DEFENDER OR NEW JERSEY. 
..END :


















ROGERS V. UNITED STATES, 422 US 35 


       ROGERS V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 73 - 6336.  ARGUED APRIL 14, 1975--DECIDED JUNE 17,

           1975; 488 F.2D 512, REVERSED AND REMANDED. 


TWO HOURS AFTER RETIRING FOR DELIBERATION IN PETITIONER'S TRIAL FOR
HAVING ALLEGEDLY VIOLATED 18 U.S.C. SEC. 871(A) BY THREATENING THE LIFE
OF THE PRESIDENT, THE JURY BY NOTE ASKED THE TRIAL JUDGE WHETHER HE
WOULD ACCEPT A VERDICT OF " GUILTY AS CHARGED WITH EXTREME MERCY OF THE
COURT."  THE JUDGE THROUGH THE MARSHAL ANSWERED AFFIRMATIVELY WITHOUT
NOTIFYING PETITIONER OR HIS COUNSEL.  FIVE MINUTES LATER THE JURY
RETURNED A VERDICT OF GUILTY WITH THE INDICATED RECOMMENDATION, WHICH
WAS UPHELD ON APPEAL.  HELD:  "(THE ORDERLY CONDUCT OF A TRIAL BY JURY,
ESSENTIAL TO THE PROPER PROTECTION OF THE RIGHT TO BE HEARD, ENTITLES
THE PARTIES.  . . TO BE PRESENT IN PERSON OR BY COUNSEL AT ALL
PROCEEDINGS FROM THE TIME THE JURY IS IMPANELED UNTIL IT IS DISCHARGED
AFTER RENDERING THE VERDICT," FILLIPPON V. ALBION VEIN SLATE CO., 250
U.S. 76, 81, AND, AS SHIELDS V. UNITED STATES, 273 U.S. 583, AND FED.
RULE CRIM. PROC. 43 MAKE CLEAR, A CRIMINAL DEFENDANT HAS THE RIGHT TO
BE PRESENT "AT EVERY STAGE OF THE TRIAL INCLUDING THE IMPANELING OF THE
JURY AND THE RETURN OF THE VERDICT."  ALTHOUGH A VIOLATION OF RULE 43
MAY IN SOME CIRCUMSTANCES BE HARMLESS ERROR, THAT CONCLUSION CANNOT BE
REACHED IN THIS CASE.  AT THE VERY LEAST, THE TRIAL COURT SHOULD HAVE
REMINDED THE JURY THAT ITS RECOMMENDATION WOULD NOT IN ANY WAY BE
BINDING AND SHOULD HAVE ADMONISHED THE JURY TO REACH ITS VERDICT
WITHOUT REGARD TO WHAT SENTENCE MIGHT BE IMPOSED.  IN THE CIRCUMSTANCES
OF THIS CASE, THE TRIAL COURT'S ERRORS WERE SUCH AS TO WARRANT THIS
COURT'S TAKING COGNIZANCE OF THEM REGARDLESS OF PETITIONER'S FAILURE TO
RAISE THE ISSUE IN THE COURT OF APPEALS OR IN THIS COURT.  PP. 38 -
41. 

BURGER, C.J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 
MARSHALL, J., FILED A CONCURRING OPINION, IN WHICH DOUGLAS, J., JOINED,
POST, P. 41. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED BY A JURY ON FIVE COUNTS OF AN INDICTMENT
CHARGING HIM WITH KNOWINGLY AND WILLFULLY MAKING ORAL THREATS "TO TAKE
THE LIFE OF OR TO INFLICT BODILY HARM UPON THE PRESIDENT OF THE UNITED
STATES," IN VIOLATION OF 18 U.S.C. SEC. 871(A).  THE COURT OF APPEALS
AFFIRMED, 488 F.2D 512 (CA5 1974), AND WE GRANTED CERTIORARI TO RESOLVE
AN APPARENT CONFLICT AMONG THE COURTS OF APPEALS CONCERNING THE
ELEMENTS OF THE OFFENSE PROSCRIBED BY SEC. 871(A).  419 U.S. 824
(1974).  AFTER FULL BRIEFING AND ARGUMENT, HOWEVER, WE FIND IT
UNNECESSARY TO REACH THAT QUESTION, SINCE CERTAIN CIRCUMSTANCES OF
PETITIONER'S TRIAL SATISFY US THAT THE CONVICTION MUST BE REVERSED. 

THE RECORD REVEALS THAT THE JURY RETIRED FOR DELIBERATION AT 3 P.M.
ON THE SECOND DAY OF PETITIONER'S TRIAL.  APPROXIMATELY TWO HOURS
LATER, AT 4:55 P.M., THE JURY SENT A NOTE, SIGNED BY THE FOREMAN, TO
THE TRIAL JUDGE, INQUIRING WHETHER THE COURT WOULD "ACCEPT THE VERDICT-
' GUILTY AS CHARGED WITH EXTREME MERCY OF THE COURT.'"  WITHOUT
NOTIFYING PETITIONER OR HIS COUNSEL, THE COURT INSTRUCTED THE MARSHAL
WHO DELIVERED THE NOTE "TO ADVISE THE JURY THAT THE COURT'S ANSWER WAS
IN THE AFFIRMATIVE."  FIVE MINUTES LATER, AT 5 P.M., THE JURY RETURNED,
AND THE RECORD CONTAINS THE FOLLOWING ACCOUNT OF THE ACCEPTANCE OF ITS
VERDICT: 

    " THE COURT:  WE UNDERSTAND FROM A NOTE YOU SENT TO THE COURT

  THE VERDICT FINDS HIM GUILTY ON ALL FIVE COUNTS BUT THAT YOU WISH

  TO RECOMMEND EXTREME MERCY; IS THAT CORRECT? 

     " THE FOREMAN:  YES, YOU HONOR. 

     " THE COURT:  WILL YOU PLEASE POLL THE JURY.  (WHEREUPON THE

JURY WAS POLLED AND ALL JURORS ANSWERED IN THE AFFIRMATIVE.) 

     " THE COURT:  LET THE VERDICT BE ENTERED AS THE JUDGMENT OF
THE

  COURT.  CERTAINLY THE COURT WILL TAKE INTO CONSIDERATION YOUR

  RECOMMENDATION OF MERCY, BUT BEFORE WE CAN ACT UPON THE CASE, WE

  WILL HAVE THE PROBATION OFFICER MAKE A PRE-SENTENCE INVESTIGATION

  REPORT.  WE DO NOT KNOW WHETHER THE MAN HAS A PRIOR CRIMINAL

  RECORD OR NOT AND WE WILL CERTAINLY TAKE INTO ACCOUNT WHAT YOU

  HAVE RECOMMENDED."  2 TR. 192 - 193.  /1/ 

GENERALLY, A RECOMMENDATION OF LENIENCY MADE BY A JURY WITHOUT
STATUTORY AUTHORIZATION DOES NOT AFFECT THE VALIDITY OF THE VERDICT AND
MAY BE DISREGARDED BY THE SENTENCING JUDGE.  SEE COOK V. UNITED STATES,
379 F.2D 966, 970 (CA5 1967), AND CASES CITED.  HOWEVER, IN COOK, THE
COURT OF APPEALS HELD THAT AN EXCEPTION TO THIS GENERAL RULE, REQUIRING
FURTHER INQUIRY BY THE TRIAL COURT, ARISES WHERE THE CIRCUMSTANCES OF
THE RECOMMENDATION CAST DOUBT UPON THE UNQUALIFIED NATURE OF THE
VERDICT.  ASSUMING THE VALIDITY OF THE EXCEPTION, WE NEED NOT DECIDE
WHETHER EITHER THE FACTUAL DIFFERENCES BETWEEN THE RECOMMENDATION IN
COOK AND THAT IN THE INSTANT CASE, OR PETITIONER'S FAILURE TO REQUEST
FURTHER INQUIRY PRIOR TO THE RECORDING OF THE VERDICT, SEE FED. RULE
CRIM. PROC. 31(D), WOULD SUFFICE TO DISTINGUISH THE CASES FOR PURPOSES
OF APPROPRIATE APPELLATE RELIEF.  SEE 8 J. MOORE, FEDERAL PRACTICE
31.07 (2D ED. 1975).  WE DEAL HERE NOT MERELY WITH A POTENTIAL DEFECT
IN THE VERDICT. 

IN FILLIPPON V. ALBION VEIN SLATE CO., 250 U.S. 76 (1919), THE COURT
OBSERVED "THAT THE ORDERLY CONDUCT OF A TRIAL BY JURY, ESSENTIAL TO THE
PROPER PROTECTION OF THE RIGHT TO BE HEARD, ENTITLES THE PARTIES WHO
ATTEND FOR THE PURPOSE TO BE PRESENT IN PERSON OR BY COUNSEL AT ALL
PROCEEDINGS FROM THE TIME THE JURY IS IMPANELED UNTIL IT IS DISCHARGED
AFTER RENDERING THE VERDICT."  ID., AT 81.  IN APPLYING THAT PRINCIPLE,
THE COURT HELD THAT THE TRIAL JUDGE IN A CIVIL CASE HAD "ERRED IN
GIVING A SUPPLEMENTARY INSTRUCTION TO THE JURY IN THE ABSENCE OF THE
PARTIES AND WITHOUT AFFORDING THEM AN OPPORTUNITY EITHER TO BE PRESENT
OR TO MAKE TIMELY OBJECTION TO THE INSTRUCTION."  IBID. 

IN SHIELDS V. UNITED STATES, 273 U.S. 583 (1927), THE COURT HAD
OCCASION TO CONSIDER THE IMPLICATIONS OF THE "ORDERLY CONDUCT OF A
TRIAL BY JURY" IN A CRIMINAL CASE.  THE TRIAL JUDGE HAD REPLIED TO A
WRITTEN COMMUNICATION FROM THE JURY, INDICATING ITS INABILITY TO AGREE
AS TO THE GUILT OR INNOCENCE OF THE DEFENDANT, BY SENDING A WRITTEN
DIRECTION THAT IT MUST FIND THE DEFENDANT "GUILTY OR NOT GUILTY."  THE
COMMUNICATIONS WERE NOT MADE IN OPEN COURT WHILE THE DEFENDANT AND HIS
COUNSEL WERE PRESENT NOR WERE THEY ADVISED OF THEM.  THE JURY THEREUPON
FOUND SHIELDS GUILTY OF ONE COUNT WITH A RECOMMENDATION OF MERCY.  THIS
COURT HELD THAT A PREVIOUS REQUEST BY COUNSEL FOR SHIELDS AND THE
GOVERNMENT THAT THE TRIAL JUDGE HOLD THE JURY IN DELIBERATION UNTIL
THEY HAD AGREED UPON A VERDICT "DID NOT JUSTIFY EXCEPTION TO THE RULE
OF ORDERLY CONDUCT OF JURY TRIAL ENTITLING THE DEFENDANT, ESPECIALLY IN
A CRIMINAL CASE, TO BE PRESENT FROM THE TIME THE JURY IS IMPANELED
UNTIL ITS DISCHARGE AFTER RENDERING THE VERDICT."  ID., AT 588 - 589. 

AS IN SHIELDS, THE COMMUNICATION FROM THE JURY IN THIS CASE WAS
TANTAMOUNT TO A REQUEST FOR FURTHER INSTRUCTIONS.  HOWEVER, WE NEED NOT
LOOK SOLELY TO OUR PRIOR DECISIONS FOR GUIDANCE AS TO THE APPROPRIATE
PROCEDURE IN SUCH A SITUATION.  FEDERAL RULE CRIM. PROC. 43 GUARANTEES
TO A DEFENDANT IN A CRIMINAL TRIAL THE RIGHT TO BE PRESENT "AT EVERY
STAGE OF THE TRIAL INCLUDING THE IMPANELING OF THE JURY AND THE RETURN
OF THE VERDICT."  CASES INTERPRETING THE RULE MAKE IT CLEAR, IF OUR
DECISIONS PRIOR TO THE PROMULGATION OF THE RULE LEFT ANY DOUBT, THAT
THE JURY'S MESSAGE SHOULD HAVE BEEN ANSWERED IN OPEN COURT AND THAT
PETITIONER'S COUNSEL SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO BE HEARD
BEFORE THE TRIAL JUDGE RESPONDED.  SEE, E.G., UNITED STATES V. SCHOR,
418 F.2D 26, 29 - 30 (CA2 1969); UNITED STATES V. GLICK, 463 F.2D 491,
493 (CA2 1972). 

ALTHOUGH A VIOLATION OF RULE 43 MAY IN SOME CIRCUMSTANCES BE
HARMLESS ERROR, SEE FED. RULE CRIM. PROC. 52(A); UNITED STATES V.
SCHOR, SUPRA, THE NATURE OF THE INFORMATION CONVEYED TO THE JURY, IN
ADDITION TO THE MANNER IN WHICH IT WAS CONVEYED, DOES NOT PERMIT THAT
CONCLUSION IN THIS CASE.  THE TRIAL JUDGE SHOULD NOT HAVE CONFINED HIS
RESPONSE TO THE JURY'S INQUIRY TO AN INDICATION OF WILLINGNESS TO
ACCEPT A VERDICT WITH A RECOMMENDATION OF "EXTREME MERCY."  AT THE VERY
LEAST, THE COURT SHOULD HAVE REMINDED THE JURY THAT THE RECOMMENDATION
WOULD NOT BE BINDIN IN ANY WAY.  BUT SEE UNITED STATES V. DAVIDSON, 367
F.2D 60 (CA6 1966).  /2/ IN ADDITION, THE RESPONSE SHOULD HAVE INCLUDED
THE ADMONITION THAT THE JURY HAD NO SENTENCING FUNCTION AND SHOULD
REACH ITS VERDICT WITHOUT REGARD TO WHAT SENTENCE MIGHT BE IMPOSED. 
SEE UNITED STATES V. LOUIE GIM HALL, 245 F.2D 338 (CA2 1957); UNITED
STATES V. GLICK, SUPRA, AT 494.  CF. UNITED STATES V. PATRICK, 161 U.S.
APP. D.C. 231, 494 F.2D 1150 (1974). 

THE FACT THAT THE JURY, WHICH HAD BEEN DELIVERATING FOR ALMOST TWO
HOURS WITHOUT REACHING A VERDICT, RETURNED A VERDICT OF "GUILTY WITH
EXTREME MERCY" WITHIN FIVE MINUTES "AFTER BEING TOLD UNCONDITIONALLY
AND UNEQUIVOCALLY THAT IT COULD RECOMMEND LENIENCY," UNITED STATES V.
GLICK, SUPRA, AT 495, STRONGLY SUGGESTS THAT THE TRIAL JUDGE'S RESPONSE
MAY HAVE INDUCED UNANIMITY BY GIVING MEMBERS OF THE JURY WHO HAD
PREVIOUSLY HESITATED ABOUT REACHING A GUILTY VERDICT THE IMPRESSION
THAT THE RECOMMENDATION MIGHT BE AN ACCEPTABLE COMPROMISE.  WE
ACKNOWLEDGE THAT THE COMMENTS OF THE TRIAL JUDGE UPON RECEIVING THE
VERDICT MAY BE SAID TO HAVE PUT PETITIONER'S COUNSEL ON NOTICE THAT THE
JURY HAD COMMUNICATED WITH THE COURT, BUT THE ONLY INDICATION THAT THE
COURT HAD UNILATERALLY COMMUNICATED WITH THE JURY COMES FROM THE NOTE
ITSELF, WHICH THE COURT CORRECTLY ORDERED TO BE FILED IN THE RECORD,
WITH A NOTATION AS TO THE TIME OF RECEIPT AND THE COURT'S RESPONSE.  IT
APPEARS, HOWEVER, THAT PETITIONER'S COUNSEL WAS NOT AWARE OF THE
COURT'S COMMUNICATION UNTIL AFTER WE GRANTED THE PETITION FOR
CERTIORARI.  IN SUCH CIRCUMSTANCES, AND PARTICULARLY IN LIGHT OF THE
DIFFICULT TASK OF THE FACTFINDER IN A PROSECUTION UNDER SEC. 871(A),
SEE WATTS V. UNITED STATES, 394 U.S. 705 (1969), WE CONCLUDE THAT THE
COMBINED EFFECT OF THE DISTRICT COURT'S ERRORS WAS SO FRAUGHT WITH
POTENTIAL PREJUDICE AS TO REQUIRE US TO NOTICE THEM NOTWITHSTANDING
PETITIONER'S FAILURE TO RAISE THE ISSUE IN THE COURT OF APPEALS OR IN
THIS COURT.  SILBER V. UNITED STATES, 370 U.S. 717 (1962); BROTHERHOOD
OF CARPENTERS V. UNITED STATES, 330 U.S. 395, 411 - 412 (1947).  CF.
UNITED STATES V. DAVIDSON, 367 F.2D, AT 63. 

THE JUDGMENT OF THE COURT OF APPEALS IS ACCORDINGLY REVERSED, AND
THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

        REVERSED AND REMANDED. 

/1/ PETITIONER WAS ORIGINALLY SENTENCED TO FIVE YEARS' IMPRISONMENT
ON EACH COUNT, SUBJECT TO THE EARLY PAROLE ELIGIBILITY PROVISIONS OF 18
U.S.C. SEC. 4208 (A)(2), TO BE FOLLOWED BY FIVE YEARS' SUPERVISED
PROBATION ON THE CONDITION THAT HE JOIN ALCOHOLICS ANONYMOUS.  THE
SENTENCE ON THE LAST FOUR COUNTS WAS TO RUN CONCURRENTLY AND TO BE
SUSPENDED DURING GOOD BEHAVIOR.  CF. UNITED STATES V. DAVIDSON, 367
F.2D 60, 63 (CA6 1966).  IT APPEARS FROM THE RECORD THAT THE DISTRICT
JUDGE SOUGHT TO USE THE CONFINEMENT TO AFFORD PETITIONER AN OPPORTUNITY
TO BE CURED OF HIS ALCOHOLISM. 

AT THE SUGGESTION OF THE COURT OF APPEALS, PETITIONER MOVED FOR, AND
THE GOVERNMENT DID NOT OPPOSE, "A REDUCTION OF THE STRINGENT
SENTENCESIMPOSED IN THE DISTRICT COURT" UNDER FED. RULE CRIM. PROC.
35.  THE MOTION WAS GRANTED, AND PETITIONERS SENTENCE WAS REDUCED TO
THREE YEARS' IMPRISONMENT ON EACH COUNT.  PETITIONER WAS RELEASED FROM
CONFINEMENT ON DECEMBER 24, 1974.  HE REMAINS SUBJEC TO FIVE YEARS'
SUPERVISED PROBATION.  AFTER ARGUMENT WE WERE ADVISED BY THE SOLICITOR
GENERAL THAT ON APRIL 7, 1975, PETITIONER WAS ARRESTED ON A MANDATORY
RELEASE VIOLATION WARRANT (18 U. S.C. SEC. 4164) AND WAS INCARCERATED
PENDING A REVOCATION HEARING. 

/2/ AS IN DAVIDSON, 367 F.2D, AT 63, THE TRIAL COURT'S RESPONSE WAS
INCONSISTENT WITH THE INSTRUCTION IN THE GENERAL CHARGE THAT
"PUNISHMENT...IS A MATTER EXCLUSIVELY WITHIN THE PROVINCE OF THE COURT
AND IS NOT TO BE CONSIDERED BY THE JURY IN ARRIVING AT AN IMPARTIAL
VERDICT..."  2 TR.190. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
CONCURRING. 

GEORGE ROGERS, A 34-YEAR-OLD UNEMPLOYED CARPENTER WITH A 10-YEAR
HISTORY OF ALCOHOLISM, WANDERED INTO THE COFFEE SHOP OF A HOLIDAY INN
IN SHREVEPORT, LA., EARLY ONE MORNING, BEHAVING IN A LOUD AND
OBSTREPEROUS MANNER.  HE ACCOSTED SEVERAL CUSTOMERS AND WAITRESSES,
TELLING THEM, AMONG OTHER THINGS, THAT HE WAS JESUS CHRIST AND THAT HE
WAS OPPOSED TO PRESIDENT NIXON'S VISITING CHINA BECAUSE THE CHINESE HAD
A BOMB THAT ONLY HE KNEW ABOUT, WHICH MIGHT BE USED AGAINST THE PEOPLE
OF THIS COUNTRY.  IN THE COURSE OF HIS VARIOUS OUTBURSTS, ROGERS
ANNOUNCED THAT HE WAS GOING TO GO TO WASHINGTON TO "WHIP NIXON'S ASS,"
OR TO "KILL HIM IN ORDER TO SAVE THE UNITED STATES." 

THE LOCAL POLICE WERE SOON CALLED TO REMOVE ROGERS FROM THE HOLIDAY
INN.  WHEN THE ARRESTING OFFICER ARRIVED, HE ASKED ROGERS WHETHER HE
HAD THREATENED THE PRESIDENT.  ROGERS REPLIED THAT HE DIDN'T LIKE THE
IDEA OF THE PRESIDENT'S GOING TO CHINA AND MAKING FRIENDS WITH THE
CHINESE, OUR ENEMIES.  HE TOLD THE OFFICER, " I'M GOING TO WASHINGTON
AND I'M GOING TO BEAT HIS ASS OFF.  BETTER YET, I WILL GO KILL HIM." 
ROGERS ADDED THAT HE INTENDED TO "WALK" TO WASHINGTON BECAUSE HE DIDN'T
LIKE CARS.  ROGERS WAS NOT CHARGED WITHANY STATE LAW CRIMES, BUT THE
POLICE REPORTED THE INCIDENT TO A LOCAL SECRET SERVICE AGENT, WHO
SUBSEQUENTLY HAD PETITIONER ARRESTED ON A FEDERAL WARRANT. 

THIS SAD SET OF CIRCUMSTANCES RESULTED IN A FIVE-COUNT INDICTMENT
UNDER THE "THREATS AGAINST THE PRESIDENT" STATUTE, 18 U.S.C. SEC. 871
(A).  AFTER A JURY TRIAL, PETITIONER WAS CONVICTED UNDER THAT STATUTE
AND SENTENCED TO FIVE YEARS' IMPRISONMENT, TO BE FOLLOWED BY FIVE YEARS
OF SUPERVISED PROBATION.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
AFFIRMED PETITIONER'S CONVICTION IN A BRIEF PER CURIAM OPINION, HOLDING
THAT THE DISTRICT COURT HAD PROPERLY INSTRUCTED THE JURY UNDER SEC.
871, AND THAT THE EVIDENCE AGAINST PETITIONER WAS SUFFICIENT TO SUSTAIN
A CONVICTION UNDER THAT STATUTE AS PROPERLY CONSTRUED. 

AFTER WE GRANTED CERTIORARI, AND AFTER THE PETITIONER'S BRIEF WAS
FILED HERE, THE SOLICITOR GENERAL CONFESSED ERROR, BUT ON A POINT THAT
HAD NOT BEEN RAISED EITHER HERE, IN THE COURT OF APPEALS, OR AT TRIAL. 
THE COURT TODAY SEZES ON THAT POINT TO REVERSE THE CONVICTION, LEAVING
UNRESOLVED THE ISSUE THAT WE GRANTED CERTIORARI TO CONSIDER.  ALTHOUGH
I DO NOT DISAGREE WITH THE COURT'S TREATMENT OF THE QUESTION ON WHICH
IT BASES IT REVERSAL TODAY, I WOULD REACH THE MERITS AND REVERSE
PETITIONER'S CONVICTION ON THE GROUNDS PRESSED IN THE COURT OF APPEALS
AND IN THE PETITION FOR CERTIORARI. 

        I 

THE DISTRICT COURT AND THE COURT OF APPEALS ADOPTED WHAT HAS BEEN
TERMED THE "OBJECTIVE" CONSTRUCTION OF THE STATUTE.  THIS
INTERPRETATION OF SEC. 871 ORIGINATED WITH THE EARLY CASE OF RAGANSKY
V. UNITED STATES, 253 F. 643 (CA7 1918), AND IT HAS BEEN ADOPTED BY A
MAJORITY OF THE COURTS OF APPEALS, /1/ EVEN THOUGH THIS COURT HAS
EXPRESSED "GRAVE DOUBTS" AS TO ITS CORRECTNESS.  WATTS V. UNITED
STATES, 394 U.S. 705, 707 (1969).  AS APPLIED IN RAGANSKY AND LATER
CASES, THIS CONSTRUCTION WOULD SUPPORT THE CONVICTION OF ANYONE MAKING
A STATEMENT THAT WOULD REASONABLY BE UNDERSTOOD AS A THREAT, SEE ROY V.
UNITED STATES, 416 F.2D 874, 877 (CA9 1969), AS LONG AS THE DEFENDANT
INTENDED TO MAKE THE STATEMENT AND KNEW THE MEANING OF THE WORDS USED,
SEE RAGANSKY V. UNITED STATES, SUPRA, AT 645.     THE DISTRICT COURT
CHARGED THE JURY IN ACCORDANCE WITH THE "OBJECTIVE CONSTRUCTION."  THE
JURY WAS INSTRUCTED IN EFFECT THAT IT WAS NOT REQUIRED TO FIND THAT THE
PETITIONER ACTUALLY INTENDED TO KILL OR INJURE THE PRESIDENT, OR EVEN
THAT HE MADE A STATEMENT THAT HE THOUGHT MIGHT BE TAKEN AS A SERIOUS
THREAT.  INSTEAD, THE JURY WAS PERMITTED TO CONVICT ON A SHOWING MERELY
THAT A REASONABLE MAN IN PETITIONER'S PLACE WOULD HAVE FORESEEN THAT
THE STATEMENTS HE MADE WOULD BE UNDERSTOOD AS INDICATING A SERIOUS
INTENTION TO COMMIT THE ACT.  /2/ IN ADDITION, THE COURT CHARGED THAT
THE JURY COULD FIND PETITIONER GUILTY IF HIS STATEMENTS EVINCED "AN
APPARENT DETERMINATION TO CARRY OUT THE THREAT."  2 TR. 177.  IN MY
VIEW, THIS CONSTRUCTION OF SEC. 871 IS TO BROAD. 

IN WATTS, WE OBSERVED THAT GIVING SEC. 871 AN EXPANSIVE CONSTRUCTION
WOULD CREATE A SUBSTANTIAL RISK THAT CRUDE, BUT CONSTITUTIONALLY
PROTECTED, SPEECH MIGHT BE CRIMINALIZED.  THE PETITIONER THERE HAD BEEN
CONVICTED FOR TELLING A SMALL GROUP AT A POLITICAL RALLY:  " IF THEY
EVER MAKE ME CARRY A RIFLE THE FIRST MAN I WANT TO GET IN MY SIGHTS IS
LB.J."  WE HELD THAT THE STATEMENT, EVEN IF "WILLFULLY AND KNOWINGLY"
MADE, WAS NOT A TRUE "THREAT" BUT MERELY A FORM OF POLITICAL
HYPERBOLE.  APPLYING THE STATUTE WITH AN EYE TO THE DANGER OF
ENCROACHING ON CONSTITUTIONALLY PROTECTED SPEECH, WE HELD THAT THE
COMMENT IN WATTS FEL OUTSIDE THE REACH OF THE STATUTE AS A MATTER OF
LAW.  ALTHOUGH THE PETITIONER IN THE PRESENT CASE WAS NOT AT A
POLITICAL RALLY OR ENGAGED IN FORMAL POLITICAL DISCUSSION, THE SAME
CONCERN COUNSELS AGAINST PERMITTING THE STATUTE SUCH A BROAD
CONSTRUCTION THAT THERE IS A SUBSTANTIAL RISK OF CONVICTION FOR A
MERELY CRUDE OR CARELESS EXPRESSION OF POLITICAL ENMITY. 

        II 

BOTH THE LEGISLATIVE HISTORY AND THE PURPOSES OF THE STATUTE ARE
INCONSISTENT WITH THE "OBJECTIVE" CONSTRUCTION OF SEC. 871 AND SUGGEST
THAT A NARROWER VIEW OF THE STATUTE IS PROPER. 

THE STATUTE WAS ENACTED IN 1917 WITHOUT EXTENSIVE DISCUSSION.  ONLY
IN THE HOUSE DEBATES IS THERE ANY HINT OF THE SCOPE THAT THE SPONSORS
INTENDED FOR THE ACT.  WHEN IT WAS SUGGESTED THAT THE WORD "WILLFULLY"
BE REMOVED FROM THE BILL, REPRESENTATIVE VOLSTEAD OBJECTED, STATING
THAT IN HIS VIEW, "(THE WORD 'WILLFULLY' ADDS AN INTENTION TO THREATEN,
AND DISTINGUISHES A CASE (IN WHICH THE DEFENDANT DOES NOT INTEND TO
CONVEY ANY THREAT)."  WITHOUT THE REQUIREMENT OF WILLFULNESS, HE SAID,
"A PERSON MIGHT SEND INNOCENTLY, WITHOUT ANY INTENTION TO CONVEY A
THREAT AT ALL, AN INSTRUMENT TO A FRIEN THAT CONTAINED A THREAT, AND HE
WOULD BE GUILTY...."  53 CONG. REC. 9378 (1916).  ARGUING-
SUCCESSFULLY, AS IT TURNED OUT--THAT THE WORD "WILLFULLY"  SHOULD BE
LEFT IN THE STATUTE, THE CONGRESSMAN EMPHASIZED THE IMPORTANCE OF THE
SUBJECTIVE INTENTION TO THREATEN: 

"(IF THIS STATUTE IS TO BE SAVED AT ALL, IT SEEMS TO ME IT MUST BE
UPON THE THEORY THAT THE ACT IS WILLFUL.  THERE IS NOT ANYTHING IN THE
LANGUAGE OUTSIDE OF THAT WORD TO CONVEY THE IDEA THAT A THREAT MUST BE
AN INTENTIONAL THREAT AGAINST THE PRESIDENT.  THE WORD 'WILLFUL'
CONVEYS, AS ORDINARILY USED, THE IDEA OF WRONGFUL AS WELL AS
INTENTIONAL.  THAT IDEA OUGHT TO BE PRESERVED SO AS NOT TO MAKE
INNOCENT ACTS PUNISHABLE."  ID., AT 9379. 

REPRESENTATIVE WEBB, THE ONLY OTHER CONGRESSMAN TO COMMENT ABOUT
THIS ISSUE ON THE HOUSE FLOOR, ALSO UNDERSTOOD IT TO REQUIRE SPECIFIC
INTENT.  HE READ IT AT LEAST AS RESTRICTIVELY AS DID REPRESENTATIVE
VOLSTEAD: 

" IF YOU MAKE IT A MERE TECHNICAL OFFENSE, YOU DO NOT GIVE HIM MUCH
OF A CHANCE WHEN HE COMES TO ANSWER BEFORE A COURT AND JURY.  I DO NOT
THINK WE OUGHT TO BE TOO ANXIOUS TO CONVICT A MAN WHO DOES A THING
THOUGHTLESSLY. 

     ##HC46 I THINK IT OUGHT TO BE A WILLFUL EXPRESSION OF AN
INTENT

  TO CARRY OUT A THREAT AGAINST THE EXECUTIVE...."  ID., AT 9378. 

  /3/

THE SPONSORS THUS RATHER PLAINLY INTENDED THE BILL TO REQUIRE A SHOWING
THAT THE DEFENDANT APPRECIATED THE THREATENING NATURE OF HIS STATEMENT
AND INTENDED AT LEAST TO CONVEY THE IMPRESSION THAT THE THREAT WAS A
SERIOUS ONE.  THE DANGER OF MAKING SEC. 871 A MERE "TECHNICAL OFFENSE"
OR MAKING "INNOCENT ACTS PUNISHABLE" WAS CLEAR TO THE SPONSORS OF THE
ACT; THEIR CONCERNS SHOULD CONTINUE TO INFORM THE APPLICATION OF THE
STATUTE TODAY. 

        B 

THE GOVERNMENT ARGUES THAT ONLY THE OBJECTIVE CONSTRUCTION OF SEC.
871 IS CONSISTENT WITH THE PURPOSES THE STATUTE WAS INTENDED TO SERVE. 
IN ATTS, THE GOVERNMENT NOTES, WE IDENTIFIED THE INTERESTS ADVANCED BY
THE STATUTE AS BEING BOTH "PROTECTING THE SAFETY OF (THE) CHIEF
EXECUTIVE AND...ALLOWING HIM TO EPRFORM HIS DUTIES WITHOUT INTERFERENCE
FROM THREATS OF PHYSICAL VIOLENCE."  394 U.S., AT 707.  I ADHERE TO
THAT STATEMENT OF THE PURPOSE OF THE STATUTE; I SIMPLY DO NOT AGREE
THAT THE OBJECTIVE CONSTRUCTION IS THE NECESSARY OR EVEN THE NATURAL
MEANS OF ACHIEVING THAT PURPOSE. 

PLAINLY, THREATS MAY BE COSTLY AND DANGEROUS TO SOCIETY IN A VARIETY
OF WAYS, EVEN WHEN THEIR AUTHORS HAVE NO INTENTION WHATEVER OF CARRYING
THEM OUT.  LIKE A THREAT TO BLOW UP A BUILDING, A SERIOUS THREAT ON THE
PRESIDENT'S LIFE IS ENORMOUSLY DISRUPTIVE AND INVOLVES SUBSTANTIAL
COSTS TO THE GOVERNMENT.  A THREAT MADE WITH NO PRESENT INTENTION OF
CARRYING IT OUT MAY STILL RESTRICT THE PRESIDENT'S MOVEMENTS AND
REQUIRE A REACTION FROM THOSE CHARGED WITH PRETECTING THE PRESIDENT. 
BECAUSE SEC. 871 WAS INTENDED TO PREVENT NOT SIMPLY ATTEMPTS ON THE
PRESIDENT'S LIFE, BUT ALSO THE HARM ASSOCIATED WITH THE THREAT ITSELF,
I BELIEVE THAT THE STATUTE SHOULD BE CONSTRUED TO PROSCRIBE ALL THREATS
THAT THE SPEAKER INTENDS TO BE INTERPRETED AS EXPRESSIONS OF AN INTENT
TO KILL OR INJURE THE PRESIDENT.  THIS CONSTRUCTION REQUIRES PROOD THAT
THE DEFENDANT INTENDED TO MAKE A THREATENING STATEMENT, AND THAT THE
STATEMENT HE MADE WAS IN FACT THREATENING IN NATURE.  UNDER THE
OBJECTIVE CONSTRUCTION BY CONTRAST, THE DEFENDANT IS SUBJECT TO
PROSECUTION FOR ANY STATEMENT THAT MIGHT REASONABLY BE INTERPRETED AS A
THREAT, REGARDLESS OF THE SPEAKER'S INTENTION.  IN ESSENCE, THE
OBJECTIVE INTERPRETATION EMBODIES A NEGLIGENCE STANDARD, CHARGING THE
DEGENDANT WITH RESPONSIBILITY FOR THE EFFECT OF HIS STATEMENTS ON HIS
LISTENERS.  WE HAVE LONG BEEN RELUCTANT TO INFER THAT A NEGLIGENCE
STANDARD WAS INTENDED IN CRIMINAL STATUES, SEE MORISSETTE V. UNITED
STATES, 342 U.S. 246 (1952); WE SHOULD BE PARTICULARLY WARY OF ADOPTING
SUCH A STANDARD FOR A STATUTE THAT REGULATES PURE SPEECH.  SEE ABRAMS
V. UNITED STATES, 250 U.S. 616, 626 - 627 (1919) (HOLMES, J.,
DISSENTING). 

IF SEC. 871 HAS ANY DETERRENT EFFECT, THAT EFFECT IS LIKELY TO WORK
ONLY AS TO STATEMENTS INTENDED TO CONVEY A THREAT.  STATEMENTS DEEMED
THREATENING IN NATURE ONLY UPON "OBJECTIVE" CONSIDERATION WILL BE
DETERRED ONLY IF PERSONS CRITICIZING THE PRESIDENT ARE CAREFUL TO GIVE
A WIDE BERTH TO ANY COMMENT THAT MIGHT BE CONSTRUED AS THREATENING IN
NATURE.  AND THAT DEGREE OF DETERRENCE WOULD HAVE SUBSTANTIAL COSTS IN
DISCOURAGING THE "UNINHIBITED, ROBUST, AND WIDE-OPEN" DEBATE THAT THE
FIRST AMENDMENT IS INTENDED TO PROTECT.  NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254, 270 (1964). 

I WOULD SPEAKER INTENDED HIS STATEMENT TO BE TAKEN AS A THREAT, EVEN
IF HE HAD NO INTENTION OF ACTUALLY CARRYING IT OUT.  THE PROOF OF
INTENTION WOULD, OF COURSE, ALMOST CERTAINLY TURN ON THE CIRCUMSTANCES
UNDER WHICH THE STATEMENT WAS MADE:  IF A CALL WERE MADE TO THE WHITE
HOUSE THREATENING AN ATTEMPT ON THE PRESIDENT'S LIFE WITHIN AN HOUR,
FOR EXAMPLE, THE CALLER MIGHT WELL BE SUBJECT TO PUNISHMENT UNDER THE
STATUTE, EVEN THOUGH HE WAS CALLING FROM LOS ANGELES AT THE TIME AND
HAD NEITHER THE PURPOSE NOR THE MEANS TO CARRY OUT THE THREAT.  BUT TO
PERMIT THE JURY TO CONVICT ON NO MORE THAN A SHOWING THAT A REASONABLY
PRUDENT MAN WOULD EXPECT HIS HEARERS TO TAKE HIS THREAT SERIOUSLY IS TO
IMPOSE AN UNDULY STRINGENT STANDARD IN THIS SENSITIVE AREA. 

UNDER THE NARROWER CONSTRUCTION OF SEC. 871, THE JURY IN THIS CASE
MIGHT WELL HAVE ACQUITTED, CONCLUDING THAT IT WAS UNLIKELY THAT ROGERSS
ACTUALLY INTENDED OR EXPECTED THAT HIS LISTENERS WOULD TAKE HIS THREAT
AS A SERIOUS ONE.  BECAUSE I THINK THAT THE DISTRICT COURT'S
MISCONSTRUCTION OF THE STATUTE PREJUDICED PETITIONER IN THIS CASE AND
MAY CONTINUE TO DO MISCHIEF IN FUTURE PROSECUTIONS BROUGHT UNDER SEC.
871, I WOULD REVERSE ON THIS GROUND RATHER THAN ON THE SOLICITOR
GENERAL'S CONFESSION OF ERROR. 

/1/ SEE UNITED STATES V. LINCOLN, 462 F.2D 1368 (CA6), CERT. DENIED,
409 U.S. 952 (1972); UNITED STATES V. HART, 457 F.2D 1087 (CA10), CERT.
DENIED, 409 U.S. 861 (1972); UNITED STATES V. COMPTON, 428 F.2D 18 (CA2
1970), CERT. DENIED, 401 U.S. 1014 (1971); ROY V. UNITED STATES, 416
F.2D 874 (CA9 1969); WATTS V. UNITED STATES, 131 U.S.APP.  C.C. 125,
402 F.2D 676 (1968), REV'D, 394 U.S. 705 (1969).  CONTRA:  UNITED
STATES V. PATILLO, 438 F.2D 13 (CA4 1971) (EN BANC). 

/2/ THE DISTRICT COURT DREW ITS DEFINITION OF "KNOWINGLY," AND
"WILLFULLY" FROM RAGANSKY V. UNITED STATES, 253 F. 643 (CA7 1918), AND
SUPPLEMENTED THAT DEFINITION WITH LANGUAGE TAKEN DIRECTLY FROM ROY V.
UNITED STATES, SUPRA. 

/3/ REPRESENTATIVE WEBB MAY HAVE INTENDED AN EVEN NARROWER
CONSTRUCTION OF THE STATUTE, AS HE BEGAN HIS REMARKS BY COMMENTING, " I
THINK IT MUST BE A WILLFUL INTENT TO DO SERIOUS INJURY TO THE
PRESIDENT."  53 CONG. REC., AT 9378.  HIS SUBSEQUENT COMMENTS MADE IT
SOMEWHAT UNCLEAR WHETHER HE MEANT THAT THE THREAT MUST BE ACCOMPANIED
BY A PRESENT INTENTION TO INJURE THE PRESIDENT, OR SIMPLY THAT THE
THREAT MUST BE INTENDED TO CONVEY AN APPARENT INTENTION TO DO SO.  IN
ANY EVENT, HE CLEARLY AGREED WITH REPRESENTATIVE VOLSTEAD THAT THE
STATUTE WAS NOT TO REACH STATEMENTS NOT INTENDED TO BE THREATENING IN
CHARACTER. 

RALPH W. PARNELL, JR., BY APPOINTMENT OF THE COURT, 420 U.S. 943,
ARGUED THE CAUSE AND FILED BRIEFS FOR 

ALLAN A. TUTTLE ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ACTING ASSISTANT ATTORNEY GENERAL
KEENEY, DEPUTY SOLICITOR GENERAL RANDOLPH, WILLIAM L. PATTON, AND
MARSHALL TAMOR GOLDING. 

(OSMOND K. FRAENKEL AND MELVIN L. WULF FILED A BRIEF FOR THE
AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING REVERSAL.) 
..END :























RONDEAU V. MOSINEE PAPER CORP., 422 US 49 


       RONDEAU V. MOSINEE PAPER CORP.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

        NO. 74 - 418.  ARGUED APRIL 15, 1975--DECIDED JUNE 17,
1975;

           500 F.2D 1011, REVERSED AND REMANDED. 


RESPONDENT CORPORATION BROUGHT THIS ACTION AGAINST PETITIONER TO
ENJOIN HIM FROM VOTING OR PLEDGING HIS STOCK IN RESPONDENT AND FROM
ACQUIRING ADDITIONAL SHARES, AND TO REQUIRE HIM TO DIVEST HIMSELF OF
THE STOCK THAT HE ALREADY OWNED.  RESPONDENT CLAIMED THAT THE FAILURE
OF PETITIONER, WHO HAD ACQUIRED MORE THAN 5% OF RESPONDENT'S STOCK, TO
MAKE TIMELY DISCLOSURE AS REQUIRED BY SEC. 13(D) OF THE SECURITIES
EXCHANGE ACT OF 1937, AS ADDED BY THE WILLIAMS ACT, WAS A SCHEME TO
DEFRAUD RESPONDENT AND ITS STOCKHOLDERS.  PETITIONER, WHO HAD FILED THE
DISCLOSURE SCHEDULE ABOUT THREE MONTHS AFTER THE STATUTORY FILING TIME,
CONTENDED THAT THE WILLIAMS ACT VIOLATION, WHICH HE READILY CONCEDED,
RESULTED FROM HIS LACK OF FAMILIARITY WITH THE SECURITES LAWS, AND THAT
NEITHER RESPONDENT NOR ITS SHAREHOLDERS HAD BEEN HARMED.  THE DISTRICT
COURT GRANTED PETITIONER'S MOTION FOR SUMMARY JUDGMENT, HAVING FOUND NO
MATERIAL ISSUES OF FACT REGARDING PETITIONER'S LACK OF WILLFULNESS IN
FAILING TO MAKE A TIMELY FILING AND NO BASIS IN THE RECORD FOR
DISPUTING PETITIONER'S CLAIM THAT HE FIRST CONSIDERED THE POSSIBILITY
OF OBTAINING CONTROL OF REPONDENT SOMETIME AFTER HE DISCOVERED HIS
FILING OBLIGATION.  IT CONCLUDED THAT REPONDENT HAD SUFFERED NO
COGNIZABLE HARM FROM THE LATE FILING AND THAT THIS WAS NOT AN
APPROPRIATE CASE IN WHICH TO GRANT INJUNCTIVE RELIEF.  THE COURT OF
APPEALS REVERSED, CONCLUDING THAT RESPONDENT WAS HARMED BY HAVING BEEN
DELAYED IN ITS EFFORTS TO RESPOND TO PETITIONER'S POTENTIAL TO OBTAIN
CONTROL OF THE COMPANY BUT THAT, IN ANY EVENT, RESPONDENT WAS NOT
REQUIRED TO SHOW IRREPARABLE HARM AS A PREREQUISITE TO OBTAINING
PERMANENT INJUNCTIVE RELIEF SINCE, AS THE SECURITIES' ISSUER,
RESPONDENT WAS IN THE BEST POSITION TO ASSURE THAT SEC. 13 (D)'S FILING
REQUIREMENTS WERE BEING TIMELY AND FULLY COMPLIED WITH.  HELD:  A
SHOWING OF IRREPARABLE HAR, IN ACCORDANCE WITH TRADITIONAL PRINCIPLES
OF EQUITY, IS NECESSARY BEFORE A PRIVATE LITIGRANT CAN OBTAIN
INJUNCTIVE RELIEF BASED UPON SEC. 13(D) OF THE SECURITIES EXCHANGE
ACT.  PP. 57 - 659 

(A) THE COURT OF APPEALS ERRED IN CONCLUDING THAT RESPONDENT
SUFFERED "HARM" BECAUSE OF PETITIONER'S TECHNICAL DEFAULT, SINCE
PETITIONER HAS NOT ATTEMPTED TO OBTAIN CONTROL OF RESPONDENT, HAS NOW
MADE PROPER DISCLOSURE, AND HAS GIVEN NO INDICATION THAT HE WILL NOT
REPORT ANY MATERIAL CHANGES IN HIS DISCLOSURE SCHEDULE.  PP. 58 - 59. 

(B) PERSONS WHO ALLEGEDLY SOLD THEIR STOCK TO PETITIONER AT UNFAIRLY
DEPRESSED PREDISCLOSURE PRICES HAVE ADEQUATE REMEDIES BY AN ACTION FOR
DAMAGES, AND THOSE WHO WOULD NOT HAVE INVESTED, HAD THEY THOUGHT A
TAKEOVER BID WAS IMMINENT, ARE NOT THREATENED WITH INJURY.  PP. 59 -
60. 

(C) THE DISTRICT COURT WAS ENTIRELY CORRECT IN INSISTING THAT
RESPONDENT SATISFY THE TRADITIONAL PREREQUISITES OF EXTRAORDINARY
EQUITABLE RELIEF BY ESTABLISHING IRREPARABLE HARM, AND ITS CONCLUSIONS
THAT PETITIONER ACTED IN GOOD FAITH AND PROMPTLY FILED A DISCLOSURE
SCHEDULE WHEN HE BECAME AWARE OF HIS OBLIGATION TO DO SO SUPPORT THE
EXERCISE OF THAT COURT'S SOUND JUDICIAL DESCRETION TO DENY THE
APPLICATION FOR AN INJUNCTION, RELIEF THAT IS HISTORICALLY "DESIGNED TO
DETER, NOT TO PUNISH."  HECHT CO. V. BOWLES, 321 U.S. 321, 329.  PP. 60
- 62. 

(D) RESPONDENT IS NOT RELIEVED OF THE BURDEN OF ESTABLISHING THOSE
PREREQUISITES SIMPLY BECAUSE IT IS ASSERTING A SO-CALLED IMPLIED
PRIVATE RIGHT OF ACTION UNDER SEC. 13 (D).  PP. 62 - 65. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BRENNAN, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P. 65. 
MARSHALL, J., DISSENTED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO DETERMINE WHETHER A SHOWING OF
IRREPARABLE HARM IS NECESSARY FOR A PRIVATE LITIGANT TO OBTAIN
INJUNCTIVE RELIEF IN A SUIT UNDER SEC. 13 (D) OF THE SECURITIES
EXCHANGE ACT OF 1934, 48 STAT. 894, AS ADDED BY SEC. 2 OF THE WILLIAMS
ACT, 82 STAT. 454, AS AMENDED, 84 STAT. 1497, 15 U.S.C. SEC. 78M (D). 
419 U.S. 1067 (1974).  THE COURT OF APPEALS HELD THAT IT WAS NOT.  500
F.2D 1011 (CA7 1974).  WE REVERSE. 

        I 

RESPONDENT MOSINEE PAPER CORP. IS A WISCONSIN COMPANY ENGAGED IN THE
MANUFACTURE AND SALE OF PAPER, PAPER PRODUCTS, AND PLASTICS.  ITS
PRINCIPAL PLACE OF BUSINESS IS LOCATED IN MOSINEE, WIS., AND ITS ONLY
CLASS OF EQUITY SECURITY IS COMMON STOCK WHICH IS REGISTERED UNDER SEC.
12 OF THE SECURITIES EXCHANGE ACT OF 1934, 15 U.S.C. SEC. 781.  AT ALL
TIMES RELEVANT TO THIS LITIGATION THERE WERE SIGHTLY MORE THAN 800,000
SHARES OF SUCH STOCK OUTSTANDING. 

IN APRIL 1971 PETITIONER FRANCIS A. RONDEAU, A MOSINEE BUSINESSMAN,
BEGAN MAKING LARGE PURCHASES OF RESPONDENT'S COMMON STOCK IN THE OVER
THE-COUNTER MARKET.  SOME OF THE PURCHASES WERE IN HIS OWN NAME; OTHERS
WERE IN THE NAME OF BUSINESSES AND A FOUNDATION KNOWN TO BE CONTROLLED
BY HIM.  BY MAY 17, 1971, PETITIONER HAD ACQUIRED 40,413 SHARES OF
RESPONDENT'S STOCK, WHICH CONSTITUTED MORE THAN 5% OF THOSE
OUTSTANDING.  HE WAS THEREFORE REQUIRED TO COMPLY WITH THE DISCLOSURE
PROVISIONS OF THE WILLIAMS ACT, /1/ BY FILING A SCHEDULE 13 D WITH
RESPONDENT AND THE SECURITIES AND EXCHANGE COMMISSION WITHIN 10 DAYS. 
THAT FORM WOULD HAVE DISCLOSED, AMONG OTHER THINGS, THE NUMBER OF
SHARES BENEFICIALLY TO PURCHASE THEM, AND PETITIONER'S PURPOSE IN
MAKEING THE PURCHASES. 

PETITIONER DID NOT FILE A SCHEDULE 13 D BUT CONTINUED TO PURCHASE
SUBSTANTIAL BLOCKS OF RESPONDENT'S STOCK.  BY JULY 30, 1971, HE HAD
ACQUIRED MORE THAN 60,000 SHARES.  ON THAT DATE THE CHAIRMAN OF
RESPONDENT'S BOARD OF DIRECTORS INFORMED HIM BY LETTER THAT HIS
ACTIVITY HAD "GIVEN RISE TO NUMEROUS RUMORS" AND "SEEMS TO HAVE CREATED
SOME PROBLEMS UNDER THE FEDERAL SECURITIES LAWS....."  UPON RECEIVING
THE LETTER PETITIONER IMMEDIATELY STOPPED PLACING ORDERS FOR
RESPONDENT'S STOCK AND CONSULTED HIS ATTORNEY.  /2/ ON AUGUST 25, 1971,
HE FILED A SCHEDULE 13 D WHICH, IN ADDITION TO THE OTHER REQUIRED
DISCLOSURES, DESCRIBED THE " PURPOSE OF TRANSACTION" AS FOLLOWS: 

     " FRANCIS A. RONDEAU DETERMINED DURING EARLY PART OF 1971 THAT

  THE COMMON STOCK OF THE ISSUER (RESPONDENT) WAS UNDERVALUED IN

 THE OVER-THE-COUNTER MARKET AND REPRESENTED A GOOD INVESTMENT

  VEHICLE FOR FUTURE INCOME AND APPRECIATION.  FRANCIS A. RONDEAU

  AND HIS ASSOCIATES PRESENTLY PURPOSE TO SEEK TO ACQUIRE

  ADDITIONAL COMMON STOCK OF THE ISSUER IN ORDER TO OBTAIN

  EFFECTIVE CONTROL OF THE ISSUER, BUT SUCH INVESTMENTS AS

  ORIGINALLY DETERMINED WERE AND ARE NOT NECESSARILY MADE WITH THIS

  OBJECTIVE IN MIND.  CONSIDERATION IS CURRENTLY BEING GIVEN TO

  MAKING A PUBLIC CASH TENDER OFFER TO THE SHAREHOLDERS OF THE

  ISSUER AT A PRICE WHICH WILL REFLECT CURRENT QUOTED PRICES FOR

  SUCH STOCK WITH SOME PREMIUM ADDED." 

PETITIONER ALSO STATED THAT, IN THE EVENT THAT HE DID OBTAIN CONTROL OF
RESPONDENT, HE WOUL CONSIDER MAKING CHANGES IN MANAGEMENT "IN AN EFFORT
TO PROVIDE A BOARD OF DIRECTORS WHICH IS MORE REPRESENTATIVE OF ALL OF
THE SHAREHOLDERS, PARTICULARLY THOSE OUTSIDE OF PRESENT
MANAGEMENT...."  ONE MONTH LATER PETITIONER AMENDED THE FORM TO REFLECT
MORE ACCURATELY THE ALLOCATION OF SHARES BETWEEN HIMSELF AND HIS
COMPANIES. 

ON AUGUST 27 RESPONDENT SENT A LETTER TO ITS SHAREHOLDERS INFORMING
THEM OF THE DISCLOSURES IN PETITIONER'S SCHEDULE 13 D.  /3/ THE LETTER
STATED THAT BY HIS "TARDY FILING" PETITIONER HAD "WITHHELD THE
INFORMATION TO WHICH YOU (THE SHAREHOLDERS) WERE ENTITLED FOR MORE THAN
TWO MONTHS, IN VIOLATION OF FEDERAL LAW."  IN ADDITION, WHILE AGREEING
THAT "RECENT MARKET PRICES HAVE NOT REFLECTED THE REAL VALUE OF YOUR
MONSINEE STOCK," RESPONDENT'S MANAGEMENT COULD "SEE LITTLE IN MR.
RONDEAU'S BACKGROUND THAT WOULD QUALIFY HIM TO OFFER ANY MEANINGFUL
GUIDANCE TO A COMPANY IN THE HIGHLY TECHNICAL AND COMPETITIVE PAPER
INDUSTRY." 

SIX DAYS LATER RESPONDENT INITIATED THIS SUIT IN THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN.  ITS COMPLAINT
NAMED PETITIONER, HIS COMPANIES, AND TWO BANKS WHICH HAD FINANCED SOME
OF PETITIONER'S PURCHASES AS DEFENDANTS AND ALLEGED THAT THEY WERE
ENGAGED IN A SCHEME TO DEFRAUD RESPONDENT AND ITS SHAREHOLDERS IN
VIOLATION OF THE SECURITIES LAWS.  IT ALLEGED FURTHER THAT SHAREHOLDERS
WHO HAD "SOLD SHARES WITHOUT THE INFORMATION WHICH DEFENDANTS WERE
REQUIRED TO DISCLOSE LACKED INFORMATION MATERIAL TO THEIR DECISION
WHETHER TO SELL OR HOLD," AND THAT RESPONDENT "WAS UNABLE TO
COMMUNICATE SUCH INFORMATION TO ITS STOCKHOLDERS, AND TO TAKE SUCH
ACTIONS AS THEIR INTEREST REQUIRED."  RESPONDENT PRAYED FOR AN
INJUNCTION PROHIBITING PETITIONER AND HIS CODEFENDANTS FROM VOTING OR
PLEDGING THEIR STOCK AND FROM ACQUIRING ADDITIONAL SHARES, REQUIRING
THEM TO DIVEST THEMSELVES OF STOCK WHICH THEY ALREADY OWNED, AND FOR
DAMAGES.  A MOTION FOR A PRELIMINARY INJUNCTION WAS FILED WITH THE
COMPLAINT BUT LATER WITHDRAWN. 

AFTER THREE MONTHS OF PRETRIAL PROCEEDINGS PETITIONER MOVED FOR
SUMMARY JUDGMENT.  HE READILY CONCEDED THAT HE HAD VIOLATED THE
WILLIAMS ACT, BUT CONTENDED THAT THE VIOLATION WAS DUE TO A LACK OF
FAMILIAITY WITH THE SECURITIES LAWS AND THAT NEITHER RESPONDENT NOR ITS
SHAREHOLDERS HAD BEEN HARMED.  THE DISTRICT COURT AGREED.  IT FOUND NO
MATERIAL ISSUES OF FACT TO EXIS T REGARDING PETITIONER'S LACK OF
WILLFULNESS IN FAILING TO TIMELY FILE A SCHEDULE 13 D, CONCLUDING THAT
HE DISCOVERED HIS OBLIGATION TO DO SO ON JULY 30, 1971, /4/ AND THAT
THERE WAS NO BASIS IN THE RECORD FOR DISPUTING HIS CLAIM THAT HE FIRST
CONSIDERED THE POSSIBILITY OF OBTAINING CONTROL OF RESPONDENT SOME TIME
AFTER THAT DATE.  THE DISTRICT COURT THEREFORE HELD THAT PETITIONER AND
HIS CODEFENDANTS "DID NOT ENGAGE IN INTENTIONAL COVERT, AND
CONSPIRATORIAL CONDUCT IN FAILING TO TIMELY FILE THE 13 D SCHEDULE." 
/5/ 

SIMILARLY, ALTHOUGH ACCEPTING RESPONDENT'S CONTENTION THAT ITS
MANAGEMENT AND SHAREHOLDERS SUFFERED ANXIETY AS A RESULT OF
PETITIONER'S ACTIVITIES AND THAT THIS ANXIETY WAS EXACERBATED BY HIS
FAILURE TO DISCLOSE HIS INTENTIONS UNTIL AUGUST 1971, THE DISTRICT
COURT CONCLUDED THAT SIMILAR ANXIETY "COULD BE EXPECTED TO ACCOMPANY
ANY CHANGE IN MANAGEMENT," AND WAS "A PREDICTABLE CONSEQUENCE OF
SHAREHOLDER DEMOCRACY."  IT FELL FAR SHORT OF THE IRREPARABLE HARM
NECESSARY TO SUPPORT AN INJUNCTION AND NO OTHER HARM WAS REVEALED BY
THE RECORD; AS AMENDED, PETITIONER'S SCHEDULE 13 D DISCLOSED ALL OF THE
INFORMATION TO WHICH RESPONDENT WAS ENTITLED, AND HE HAD NOT PROCEEDED
WITH A TENDER OFFER.  MOREOVER, IN THE VIEW OF THE DISTRICT COURT EVENB
IF A SHOWING OF IRREPARABLE HARM WERE NOT REQUIRED IN ALL CASES UNDER
THE SECURITIES LAWS.  PETITIONER'S LACK OF BAD FAITH AND THE ABSENCE OF
DAMAGE TO RESPONDENT MADE THIS "A PARTICULARLY INAPPROPRIATE OCCASION
TO FASHION EQUITABLE RELIEF...."  THUS, ALTHOUGH PETITIONER HAD
COMMITTED A TECHNICAL VIOLATION OF THE WILLIAMS ACT, THE DISTRICT COURT
HELD THAT RESPONDENT WAS ENTITLED TO NO RELIEF AND ENTERED SUMMARY
JUDGMENT AGAINST IT.  /6/ 

THE COURT OF APPEALS REVERSED, WITH ON JUDGE DISSENTING.  THE
MAJORITY STATED THAT IT WAS "GIVING EFFECT" TO THE DISTRICT COURT'S
FINDINGS REGARDING THE CIRCUMSTANCES OF PETITIONER'S VIOLATION OF THE
WILLIAMS ACT, /7/ BUT CONCLUDED THAT THOSE FINDINGS SHOWED HARM TO
RESPONDENT BECAUSE IT "WAS DELAYED IN ITS EFFORTS TO MAKE ANY NECESSARY
RESPONSE TO" PETITIONER'S POTENTIAL TO TAKE CONTROL OF THE COMPANY.  IN
ANY EVENT, THE MAJORITY WAS OF THE VIEW THAT RESPONDENT "NEED NOT SHOW
IRREPARABLE HARM AS A PREREQUISITE TO OBTAINING PERMANENT INJUNCTIVE
RELIEF IN VIEW OF THE FACT THAT AS ISSUER OF THE SECURITIES IT IS IN
THE BEST POSITION TO ASSURE THAT THE FILING REQUIREMENTS OF THE
WILLIAMS ACT ARE BEING TIMELY AND FULLY COMPLIED WITH AND TO OBTAIN
SPEEDY AND FORCEFUL REMEDIAL ACTION WHEN NECESSARY."  500 F.2D, AT 1016
- 1017.  THE COURT OF APPEALS REMANDED THE CASE TO THE DISTRICT COURT
WITH INSTRUCTIONS THAT IT ENJOIN PETITIONER AND HIS CODEFENDANTS FROM
FURTHER VIOLATIONS OF THE WILLIAMS ACT AND FROM VOTING THE SHARES
PURCHASED BETWEEN THE DUE DATE OF THE SCHEDULE 13 D AND THE DATE OF ITS
FILING FOR A PERIOD OF FIVE YEARS.  IT CONSIDERED "SUCH AN INJUNCTIVE
DECREE APPROPRIATE TO NEUTRALIZE (PETITIONER'S) VIOLATION OF THE ACT
AND TO DENY HIM THE BENEFIT OF HIS WRONG-DOING."  ID., AT 1017. 

WE GRANTED CERTIORARI TO RESOLVE AN APPARENT CONFLICT AMONG THE
COURTS OF APPEALS AND BECAUSE OF THE IMPORTANCE OF THE QUESTION
PRESENTED TO PRIVATE ACTIONS UNDER THE FEDERAL SECURITIES LAWS.  WE
DISAGREE WITH THE COURT OF APPEALS' CONCLUSION THAT THE TRADITIONAL
STANDARDS FOR EXTRAORDINARY EQUITABLE RELIEF DO NOT APPLY IN THESE
CIRCUMSTANCES, AND REVERSE. 

        II 

AS IN THE DISTRICT COURT AND THE COURT OF APPEALS, IT IS CONCEDED
HERE THAT PETITIONER'S DELAY IN FILIN THE SCHEDULE 13 D CONSTITUTED A
VIOLATION OF THE WILLIAMS ACT.  THE NARROW ISSUE BEFORE US IS WHETHER
THIS RECORD SUPPORTS THE GRANT OF INJUNCTIVE RELIEF, A REMEDY WHOSE
BASIS "IN THE FEDERAL COURTS HAS ALWAYS BEEN IRREPARABLE HARM AND
INADEQUACY OF LEGAL REMEDIES."  BEACON THEATRES, INC. V. WESTOVER, 359
U.S. 500, 506 - 507 (1959). 

THE COURT OF APPEALS' CONCLUSION THAT RESPONDENT SUFFERED "HARM"
SUFFICIENT TO REQUIRE STERILIZATION OF PETIONER'S STOCK NEED NOT LON
DETAIN US.  THE PURPOSE OF THE WILLIAMS ACT IS TO INSURE THAT PUBLIC
SHAREHOLDERS WHO ARE CONFRONTED BY A CAH TENDEROFFER FOR THEIR STOCK
WILL OT BE REQUIRED TO RESPOND WITHOUT ADEQUATE INFORMATION REGARDING
THE QUALIFICATIONS AND INTENTIONS OF THE OFFERING PARTY.  /8/ BY
REQUIRING DISCLOSURE OF INFORMATION TO THE TARGET CORPORATION AS WELL
AS THE SECURITIES AND EXCHANGE COMMISSION, CONGRESS INTENDED TO DO NO
MORE THAN GIVE INCUMBENT MANAGEMENT AN OPPORTUNITY TO EXPRESS AND
EXPLAIN ITS POSITION.  THE CONGRESS EXPRESSLY DISCLAIMED AN INTENTION
TO PROVIDE A WEAPON FOR MANAGEMENT TO DISCOURAGE TAKEOVER BIDS OR
PREVENT LARGE ACCUMULATIONS OF STOCK WHICH WOULD CREATE THE POTENTIAL
FOR SUCH ATTEMPTS.  INDEED, THE ACTS'S DRAFTSMENT COMMENTED UPON THE
"EXTREME CARE" WHICH WAS TAKEN "TO AVOID TIPPING THE BALANCE OF
REGULATION EITHER IN FAVOR OF MANAGEMENT OR IN FAVOR OF THE PERSON
MAKING THE TAKEOVER BID."  S. REP. NO. 550, 90TH CONG., 1ST SESS., 3
(1967); H.R. REP. NO. 1711, 90TH CONG., 2D SESS., 4 (1968).  SEE ALSO
ELECTRONIC SPECIALTY CO. V. INTERNATIONAL CONTROLS CORP., 409 F.2D 937,
947 (CA2 1969). 

THE SHORT OF THE MATTER IS THAT NONE OF THE EVILS TO WHICH THE
WILLIAMS ACT WAS DIRECTED HAS OCCURRED OR IS THREATENED IN THIS CASE. 
PETITIONER HAS NOT ATTEMPTED TO OBTAIN CONTROL OF RESPONDENT, EITHER BY
A CASH TENDER OFFER OR ANY OTHER DEVICE.  MOREOVER, HE HAS NOW FILED A
PROPER SCHEDULE 13 D, AND THERE HAS BEEN NO SUGGESTION THAT HE WILL
FAIL TO COMPLY WITH THE ACT'S REQUIREMENT OF REPORTING ANY MATERIAL
CHANGES IN THE INFORMATION CONTAINED THEREIN.  /9/ 15 U.S.C. SEC. 78M
(D)(2); 17 CFR SEC. 240.13D - 2 (1974).  ON THIS RECORD THERE IS NO
LIKELIHOOD THAT RESPONDENT'S SHAREHOLDERS WILL BE DISADVANTAGED SHOULD
PETITIONER MAKE A TENDER OFFER, OR THAT RESPONDENT WILL BE UNABLE TO
ADEQUATELY PLACE ITS CASE BEFORE THEM SHOULD A CONTEST FOR CONTROL
DEVELOP.  THUS, THE USUAL BASIS FOR INJUNCTIVE RELIEF, "THAT THERE
EXISTS SOME CONGNIZABLE DANGER OF RECURRENT VIOLATION," IS NOT PRESENT
HERE.  UNITED STATES V. W.T. GRANT CO., 345 U.S. 629, 633 (1953).  SEE
ALSO VICKSBURG WATERWORKS CO. V. VICKSBURG, 185 U.S. 65, 82 (1902). 

NOR ARE WE IMPRESSED BY RESPONDENT'S ARGUMENT THAT AN INJUNCTION IS
NECESSARY TO PROTEC THE INTERESTS OF ITS SHAREHOLDERS WHO EITHER SOLD
THEIR STOCK TO PETITIONER AT PREDISCLOSURE PRICES OR WOULD NOT HAVE
INVESTED HAD THEY KNOWN THAT A TAKEOVER BID WAS IMMINENT.  BRIEF FOR
RESPONDENT 13, 20 - 21.  AS OBSERVED, THE PRINCIPAL OBJECT OF THE
WILLIAMS ACT IS TO SOLVE THE DILEMMA OF SHAREHOLDERS DESIRING TO
RESPOND TO A CASH TENDER OFFER, AND IT IS NOT AT ALL CLEAR THAT THE
TYPE OF "HARM" IDENTIFIED BY RESPONDENT IS REDRESSABLE UNDER ITS
PROVISIONS.  IN ANY EVENT, THOSE PERSONS WHO ALLEGEDLY SOLD AT AN
UNFAIRLY DEPRESSED PRICE HAVE AN ADEQUATE REMEDY BY WAY OF AN ACTION
FOR DAMAGES, THUS NEGATING THE BASIS FOR EQUITABLE RELIEF.  /10/ SEE
YOUNGSTOWN SHEET & TUBE CO.  V. SAWYER, 343 U.S. 579, 595 (1952)
(FRANKFURTER, J., CONCURRING).  SIMILARLY, THE FACT THAT THE SECOND
GROUP OF SHAREHOLDERS FOR WHOM RESPONDENT EXPRESSES CONCERN HAVE
RETAINED THE BENEFITS FO THEIR STOCK AND THE LACK OF AN IMMINENT
CONTEST FOR CONTROL MAKE THE POSSIBILITY OF DAMAGE TO THEM REMOTE AT
BEST.  SEE TRULY V. WANZER, 5 HOW.  141, 142 - 143 (1847). 

WE TURN, THEREFORE, TO THE COURT OF APPEALS' CONCLUSION THAT
RESPONDENT'S CLAIM WAS NOT TO BE JUDGED ACCORDING TO TRADITIONAL
EQUITABLE PRINCIPLES, AND THAT THE BARE FACT THAT PETITIONER VIOLATED
THE WILLIAMS ACT JUSTIFIED ENTRY OF AN INJUNCTION AGAINST HIM.  THIS
POSITION WOULD SEEM TO BE FORECLOSED BY HECHT CO. V. BOWLES, 321 U.S.
321 (1944).  THERE, THE ADMINISTRATOR OF THE MERGENCY PRICE CONTROL ACT
OF 1942 BROUGHT SUIT TO REDRESS VIOLATIONS OF THAT STATUTE.  THE FACT
OF THE VIOLATIONS WAS ADMITTED, BUT THE DISTRICT COURT DECLINED TO
ENTER AN INJUNCTION BECAUSE THEY WERE INADVERTENT AND THE DEFENDANT HAD
TAKEN IMMEDIATE STEPS TO RECTIFY THEM.  THIS COURT HELD THAT SUCH AN
EXERCISE OF EQUITABLE DISCRETION WAS PROPER DESPITE SEC. 205 (A) OF THE
ACT, 56 STAT. 23, 50 U.S.C. APP. SEC. 925 (A) (1940 ED., UPP.  II),
WHICH PROVIDED THAT AN INJUNCTION OR OTHER ORDER "SHALL BE GRANTED"
UPON A SHOWING OF VIOLATION, OBSERVING: 

     " WE ARE DEALING HERE WITH THE REQUIREMENTS OF EQUITY PRACTICE

  WITH A BACKGROUND OF SEVERAL HUNDRED YEARS OF HISTORY.... THE

 HISTORIC INJUNCTIVE PROCESS WAS DESIGNED TO DETER, NOT TO

  PUNISH.  THE ESSENCE OF EQUITY JURISDICTION HAS BEEN THE POWER OF

  THE CHANCELLOR TO DO EQUITY AND TO MOULD EACH DECREE TO THE

  NECESSITIES OF THE PARTICULAR CASE.  FLEXIBILITY RATHER THAN

  RIGIDITY HAD DISTINGUISHED IT.  THE QUALITIES OF MERCY AND

  PRACTICALITY HAVE MADE EQUITY THE INSTRUMENT FOR NICE ADJUSTMENT

  AND RECONCILIATION BETWEEN THE PUBLIC INTEREST AND PRIVATE NEEDS

  AS WELL AS BETWEEN COMPETING PRIVATE CLAIMS.  WE DO NOT BELIEVE

  THAT SUCH A MAJOR DEPARTURE FROM THAT LON TRADITION AS IS HERE

  PROPOSED SHOULD BE LIGHTLY IMPLIED."  321 U.S., AT 329 - 330. 

  (EMPHASIS ADDED). 

THIS REASONING APPLIES A FORTIORI TO ACTIONS INVOLVING ONLY
"COMPETING PRIVATE CLAIMS," AND SUGGESTS THAT THE DISTRICT COURT HERE
WAS ENTIRELY CORRECT IN INSISTING THAT RESPONDENT SATISFY THE
TRADITIONAL PREREQUISITES OF EXTRAORDINARY EQUITABLE RELIEF BY
ESTABLISHING IRREPARABLE HARM.  MOREOVER, THE DISTRICT JUDGE'S
CONCLUSIONS THAT PETITIONER ACTED IN GOOD FAITH AND THAT HE PROMPTLY
FILED A SCHEDULE 13 D WHEN HIS ATTENTION WAS CALLED TO THIS OBLIGATION
/11/ SUPPORT THE EXERCISE OF THE COURT'S SOUND JUDICIAL DISCRETION TO
DENY AN APPLICATION FOR AN INJUNCTION, RELIEF WHICH IS HISTORICALLY
"DESIGNED TO DETER, NOT TO PUNISH" AND TO PERMIT THE COURT "TO MOULD
EACH DECREE TO THE NECESSITIES OF THE PARTICULAR CASE."  ID., AT 329. 
AS MR. JUSTICE DOUGLAS APTLY POINTED OUT IN HECHT CO., THE "GRANT OF
JURISDICTION TO ISSUE COMPLIANCE ORDERS HARDLY SUGGESTS AN ABSOLUTE
DUTY TO DO SO UNDER ANY AND ALL CIRCUMSTANCES."  IBID. (EMPHASIS IN
ORIGINAL). 

RESPONDENT URGES, HOWEVER, THAT THE "PUBLIC INTEREST" MUST BE TAKEN
INTO ACCOUNT IN CONSIDERING ITS CLAIM FOR RELIEF AND RELIES UPON THE
COURT OF APPEALS' CONCLUSION THAT IT IS ENTITLED TO AN INJUNCTION
BECAUSE IT "IS IN THE BEST POSITION" TO INSURE THAT THE WILLIAMS ACT IS
COMPLIED WITH BY PURCHASERS OF ITS STOCK.  THIS ARGUMENT MISCONCEIVES,
WE THINK, THE NATURE OF THE LITIGATION.  ALTHOUGH NEITHER THE
AVAILABILITY OF A PRIVATE SUIT UNDER THE WILLIAMS ACT NOR RESPONDENT'S
STANDING TO BRING IT HAS BEEN QUESTIONED HERE, THIS CAUSE OF ACTION IS
NOT EXPRESSLY AUTHORIZED BY THE STATUTE OR ITS LEGISLATIVE HISTORY. 
RATHER, RESPONDENT IS ASSERTING A SO-CALLED IMPLIED PRIVATE RIGHT OF
ACTION ESTABLISHED BY CASES SUCH AS J.I. CASE CO. V. BORAK, 377 U.S.
426 (1964).  OF COURSE, WE HAVE NOT HESITATED TO RECOGNIZE THE POWER OF
FEDERAL COURTS TO FASHION PRIVATE REMEDIES FOR SECURITIES LAWS
VILATIONS WHEN TO DO SO IS CONSISTENT WITH THE LEGISLATIVE SCHEME AND
NECESSARY FOR THE PROTECTION OF INVESTORS AS A SUPPLEMENT TO
ENFORCEMENT BY THE SECURITIES AND EXCHANGE COMMISSION.  COMPARE J.I.
CASE CO. V. BORAK, SUPRA, WITH SECURITIES INVESTOR PROTECTION CORP. V.
BARBOUR, 421 U.S. 412 (1975).  HOWEVER, IT BY NO MEANS FOLLOWS THAT THE
PLAINTIFF IN SUCH AN ACTION IS RELIEVED OF THE BURDEN OF ESTABLISHING
THE TRADITIONAL PREREQUISITES OF RELIEF.  INDEED, OUR CASES HOLD THAT
QUITE THE CONTRARY IS TRUE. 

IN DECKERT V. INDEPENDENCE SHARES CORP., 311 U.S. 282 (1940), THIS
COURT WAS CALLED UPON TO DECIDE WHETHER THE SECURITIES ACT OF 1933
AUTHORIZED PURCHASERS OF SECURITIES TO BRING AN ACTION TO RESCIND AN
ALLEGEDLY FRAUDULENT SALE.  THE QUESTION WAS ANSWERED AFFIRMATIVELY ON
THE BASIS OF THE STATUTE'S GRANT OF FEDERAL JURISDICTION TO "ENFORCE
ANY LIABILITY OR DUTY" CREATED BY IT.  THE COURT'S REASONING IS
INSTRUCTIVE: 

     " THE POWER TO ENFORCE IMPLIES THE POWER TO MAKE EFFECTIVE THE

  RIGHT OF RECOVERY AFFORDED BY THE ACT.  AND THE POWER TO MAKE THE

  RIGHT OF RECOVERY EFFECTIVE IMPLIES THE POWER TO UTILIZE ANY OF

  THE PROCEDURES OR ACTIONS NORMALLY AVAILABLE TO THE LITIGANT

  ACCORDING TO THE EXIGENCIES OF THE PARTICULAR CASE.  IF

  PETITIONERS' BILL STATES A CAUSE OF ACTION WHEN TESTED BY THE

  CUSTOMARY RULES GOVERNING SUITS OF SUCH CHARACTER, THE SECURITIES

  ACT AUTHORIZES MAINTENANCE OF THE SUIT...."  ID., AT 288. 

IN OTHER WORDS, THE CONCLUSION THAT A PRIVATE LITIGANT COULD MAINTAIN
AN ACTION FOR VIOLATION OF THE 1933 ACT MEANT NO MORE THAN THAT
TRADITIONAL REMEDIES WERE AVAILABLE TO REDRESS ANY HARM WHICH HE MAY
HAVE SUFFERED; IT PROVIDED NO BASIS FOR DISPENSING WITH THE SHOWING
REQUIRED TO OBTAIN RELIEF.  SIGNIFICANTLY, THIS PASSAGE WAS RELIED UPON
IN BORAK WITH RESPECT TO ACTION UNDER THE SECURITIES EXCHANGE ACT OF
1934.  SEE 377 U.S., AT 433 - 434. 

ANY REMAINING UNCERTAINTY REGARDING THE NATURE OF RELIEF AVAILABLE
TO A PERSON ASSERTING AN IMPLIED PRIVATE RIGHT OF ACTION UNDER THE
SECURITIES LAWS WAS RESOLVED IN MILLS V. ELECTRIC AUTO-LITE CO., 396
U.S. 375 (1970).  THERE WE HELD THAT COMPLAINING SHAREHOLDERS PROVED
THEIR CASE UNDER SEC. 14 (A) OF THE ACT SHOWING THAT MISLEADING
STATEMENTS IN A PROXY SOLICITATION WERE MATERIAL AND THAT THE
SOLICITATION ITSELF "WAS AN ESSENTIAL LINK IN THE ACCOMPLISHMENT OF" A
MERGER.  WE CONCLUDED THAT ANY STRICTER STANDARD WOULD FRUSTRATE
PRIVATE ENFORCEMENT OF THE PROXY RULES, BUT MR. JUSTICE HARLAN TOOK
PAINS TO POINT OUT: 

     " OUR CONCLUSION THAT PETITIONERS HAVE ESTABLISHED THEIR CASE

  BY SHOWING THAT PROXIES NECESSARY TO APPROVAL OF THE MERGER WERE

  OBTAINED BY MEANS OF A MATERIALLY MISLEADING SOLICITATION IMPLIES

  NOTHING ABOUT THE FORM OF RELIEF TO WHICH THEY MAY BE

  ENTITLED.... IN DEVISING RETROSPECTIVE RELIEF FOR VIOLATION OF

  THE PROXY RULES, THE FEDERAL COURTS SHOULD CONSIDER THE SAME

  FACTORS THAT WOULD GOVERN THE RELIEF GRANTED FOR ANY SIMILAR

  ILLEGALITY OR FRAUD.... IN SELECTING A REMEDY THE LOWER COURTS

  SHOULD EXERCISE "'THE SOULD DISCRETION WHICH GUIDES THE

  DETERMINATIONS OF COURTS OF EQUITY,'" KEEPING IN MIND THE ROLE OF

  EQUITY AS 'THE INSTRUMENT FOR NICE ADJUSTMENT AND RECONCILIATION

  BETWEEN THE PUBLIC INTEREST AND PRIVATE NEEDS AS WELL AS BETWEEN

  COMPETING PRIVATE CLAIMS.'"  396 U.S., AT 386, QUOTING HECHT CO.

 V. BOWLES, 321 U.S., AT 329. 

CONSIDERING FURTHER THE REMEDIES WHICH MIGHT BE ORDERED, WE OBSERVED
THAT "THE MERGER SHOULD BE SET ASIDE ONLY IF A COURT OF EQUITY
CONCLUDES, FROM ALL THE CIRCUMSTANCES, THAT IT WOULD BE EQUITABLE TO DO
SO," AND THAT "DAMAGES SHOULD BE RECOVERABLE ONLY TO THE EXTENT THAT
THEY CAN BE SHOWN."  396 U.S., AT 388, 389. 

MILLS COULD NOT BE PLAINER IN HOLDING THAT THE QUESTIONS OF
LIABILITY AND RELIEF ARE SEPARATE IN PRIVATE ACTIONS UNDER THE
SECURIITES LAWS, AND THAT THE LATTER IS TO BE DETERMINED ACCORDING TO
TRADITIONAL PRINCIPLES.  THUS, THE FACT THAT RESPONDENT IS PURSUING A
CAUSE OF ACTION WHICH HAS BEEN GENERALLY RECOGNIZED TO SERVE THE PUBLIC
INTEREST PROVIDES NO BASIS FOR CONCLUDING THAT IT IS RELIEVED OF
SHOWING IRREPARABLE HARM AND OTHER USUAL PREREQUISITES FOR INJUNCTIVE
RELIEF.  ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED
AND THE CASE IS REMANDED TO IT WITH DIRECTIONS TO REINSTATE THE
JUDGMENT OF THE DISTRICT COURT. 

                       SO ORDERED. 

/1/ THE WILLIAMS ACT AMENDED THE SECURITIES EXCHANGE ACT OF 1934,
WHICH HAS BEEN FURTHER AMENDED TO PROVIDE IN RELEVANT PART: 

"(D)(1) ANY PERSON WHO, AFTER ACQUIRING DIRECTLY OR INDIRECTLY THE
BENEFICIAL OWNERSHIP OF ANY EQUITY SECURITY OF A CLASS WHICH IS
REGISTERED PURSUANT TO SECTION 781 OF THIS TITLE, OR ANY EQUITY
SECURITY OF AN INSURANCE COMPANY WHICH WOULD HAVE BEEN REQUIRED TO BE
SO REGISTERED EXCEPT FOR THE EXEMPTION CONTAINED IN SECTION 781
(G)(2)(G) OF THIS TITLE, OR ANY EQUITY SECURITY ISSUED BY A CLOSED-END
INVESTMENT COMPANY REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940,
IS DIRECTLY OR INDIRECTLY THE BENEFICIAL OWNER OF MORE THAN 5 PER
CENTUM OF SUCH CLASS SHALL, WITHIN TEN DAYS AFTER SUCH ACQUISITION,
SEND TO THE ISSUER OF THE SECURITY AT ITS PRINCIPAL EXECUTIVE OFFICE,
BY REGISTERED OR CERTIFIED MAIL, SEND TO EACH EXCHANGE WHERE THE
SECURITY IS TRADED, AND FILE WITH THE COMMISSION, A STATEMENT
CONTAINING SUCH OF THE FOLLOWING INFORMATION, AND SUCH ADDITIONAL
INFORMATION, AS THE COMMISSION MAY BY RULES AND REGULATIONS PRESCRIBE
AS NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE
PROTECTION OF INVESTORS--, 

"(A) THE BACKGROUND AND IDENTITY OF ALL PERSONS BY WHOM OR ON WHOSE
BEHALF THE PURCHASES HAVE BEEN OR ARE TO BE EFFECTED; 

"(B) THE SOURCE AND AMOUNT OF THE FUNDS OR OTHER CONSIDERATION USED
OR TO BE USED IN MAKING THE PURCHASES, AND IF ANY PART OF THE PURCHASE
PRICE OR PROPOSED PURCHASE PRICE IS REPRESENTED OR IS TO BE REPRESENTED
BY FUNDS OR OTHER CONSIDERATION BORROWED OR OTHERWISE OBTAINED FOR THE
PURPOSE OF ACQUIRING, HOLDING, OR TRADING SUCH SECURITY, A DESCRIPTION
OF THE TRANSACTION AND THE NAMES OF THE PARTIES THERETO, EXCEPT THAT
WHERE A SOURCE OF FUNDS IS A LOAN MADE IN THE ORDINARY COURSE OF
BUSINESS BY A BANK, AS DEFINED IN SECTION 78C (A)(6) OF THIS TITLE, IF
THE PERSON FILING SUCH STATEMENT SO REQUESTS, THE NAME OF THE BANK
SHALL NOT BE MADE AVAILABLE TO THE PUBLIC; 

"(C) IF THE PURPOSE OF THE PURCHASES OR PROSPECTIVE PURCHASES IS TO
ACQUIRE CONTROL OF THE BUSINESS OF THE ISSUER OF THE SECURITIES, ANY
PLANS OR PROPOSALS WHICH SUCH PERSONS MAY HAVE TO LIQUIDATE SUCH
ISSUER, TO SELL ITS ASSETS TO OR MERGE IT WITH ANY OTHER PERSONS, OR TO
MAKE ANY OTHER MAJOR CHANGE IN ITS BUSINESS OR CORPORATE STRUCTURE; 

"(D) THE NUMBER OF SHARES OF SUCH SECURITY WHICH ARE BENEFICIALLY
OWNED, AND THE NUMBER OF SHARES CONCERNING WHICH THERE IS A RIGHT TO
ACQUIRE, DIRECTLY OR INDIRECTLY, BY (I) SUCH PERSON, AND (II) BY EACH
ASSOCIATE OF SUCH PERSON, GIVING THE NAME AND ADDRESS OF EACH SUCH
ASSOCIATE; AND 

"(E) INFORMATION AS TO ANY CONTRACTS, ARRANGEMENTS, OR UNDERSTANDINGS
WITH ANY PERSON WITH RESPECT TO ANY SECURITIES OF THE ISSUER, INCLUDING
BUT NOT LIMITED TO TRANSFER OF ANY OF THE SECURITIES, JOINT VENTURES,
LOAN OR OPTION ARRANGEMENTS, PUTS OR CALLS, GUARANTIES OF LOANS,
GUARANTIES AGAINST LOSS OR GUARANTIES OF PROFITS, DIVISION OF LOSSES OR
PROFITS, OR THE GIVING OR WITHHOLDING OF PROXIES, NAMING THE PERSONS
WITH WHOM SUCH CONTRACTS, ARRANGEMENTS, OR UNDERSTANDINGS HAVE BEEN
ENTERED INTO, AND GIVING THE DETAILS THEREOF."  82 STAT. 454, AS
AMENDED, 15 U.S.C. SEC. 78M (D).  THE COMMISSION REQUIRES THE PURPOSE
OF THE TRANSACTION TO BE DISCLOSED IN EVERY SCHEDULE 13 D, REGARDLESS
OF AN INTENTION TO ACQUIRE CONTROL AND MAKE MAJOR CHANGES IN ITS
STRUCTURE.  SEE 17 CFR SEC. 240.13D - 1, 240.13D - 101 (1974). 

/2/ ALTHOUGH SOME OUTSTANDING ORDERS WERE FILLED AFTER JULY 30,
1971, PETITIONER PLACED NO NEW ORDERS FOR RESPONDENT'S STOCK AFTER THAT
DATE. 

/3/ RESPONDENT SIMULTANEOUSLY ISSUED A PRESS RELEASE CONTAINING THE
SAME INFORMATION.  ALMOST IMMEDIATELY THE PRICE OF ITS STOCK JUMPED TO
$19 - $21 PER SHARE.  A FEW DAYS LATER IT DROPPED BACK TO THE
PREVAILING PRICE OF $12.50 - $14 PER SHARE, WHERE IT REMAINED. 

/4/ THE DISTRICT COURT POINTED OUT THAT PRIOR TO DECEMBER 10, 1970,
A SCHEDULE 13 D WAS NOT REQUIRED UNTIL A PERSON'S HOLDINGS EXCEEDED 10%
OF A CORPORATION'S OUTSTANDING EQUITY SECURITIES, SEE PUB. L. NO. 91 -
567, 84 STAT. 1497, AND CREDITED PETITIONER'S TESTIMONY THAT HE
BELIEVED THE 10% REQUIREMENT WAS STILL IN EFFECT AT THE TIME HE MADE
HIS PURCHASES.  INDEED, THE CHAIRMAN OF RESPONDENT'S BOARD OF DIRECTORS
WAS NOT FAMILIAR WITH THE WILLIAMS ACT'S FILING REQUIREMENT UNTIL
SHORTLY BEFORE HE SENT THE JULY 30, 1971, LETTER. 

/5/ THE DISTRICT COURT ALSO CONCLUDED THAT RESPONDENT'S MANAGEMENT
WAS NOT UNAWARE OF PETITIONER'S ACTIVITIES WITH RESPECT TO ITS STOCK. 
IT FOUND THAT JULY 1971, THERE WAS CONSIDERABLE "STREET TALK" AMONG
BROKERS, BANKERS, AND BUSINESSMEN REGARDING HIS PURCHASES AND THAT THE
CHAIRMAN OF RESPONDENT'S BOARD HAD BEEN MONITORING THEM. 

/6/ THE DISTRICT COURT ALSO DISMISSED RESPONDENT'S CLAIMS THAT
PETITIONER HAD VIOLATED OTHER PROVISIONS OF THE SECURITIES LAWS. 
REVIEW OF THESE RULINGS WAS NOT SOUGHT IN THE COURT OF APPEALS, AND
THEY ARE NOT NOW BEFORE US. 

/7/ THE COURT OF APPEALS ALSO AGREED WITH THE DISTRICT COURT THAT
THE DISCLOSURES IN PETITIONER'S AMENDED SCHEDULE 13 D WERE ADEQUATE. 

/8/ THE SENATE REPORT DESCRIBES THE DILEMMA FACING SUCH A
SHAREHOLDER AS FOLLOWS: 

     " HE HAS MANY ALTERNATIVES.  HE CAN TENDER ALL OF HIS SHARES

IMMEDIATELY AND HOPE THEY ARE ALL PURCHASED.  HOWEVER, IF THE

  OFFER IS FOR LESS THAN ALL THE OUTSTANDING SHARES, PERHAPS ONLY A

  PART OF THEM WILL BE TAKEN.  IN THESE INSTANCES, HE WILL REMAIN A

  SHAREHOLDER IN THE COMPANY, UNDER A NEW MANAGEMENT WHICH HE HAS

  HELPED TO INSTALL WITHOUT KNOWING WHETHER IT WILL BE GOOD OR BAD

  FOR THE COMPANY. 

     " THE SHAREHOLDER, AS ANOTHER ALTERNATIVE, MAY WAIT TO SEE IF
A

  BETTER OFFER DEVELOPS, BUT IF HE TENDERS LATE, HE RUNS THE RISK

  THAT NONE OF HIS SHARES WILL BE TAKEN.  HE MAY ALSO SELL HIS

  SHARES IN THE MARKET OR HOLD THEM AND HOPE FOR THE BEST.  WITHOUT

  KNOWLEDGE OF WHO THE BIDDER IS AND WHAT HE PLANS TO DO, THE

  SHAREHOLDER CANNOT REACH AN INFORMED DECISION."  S.REP.  NO. 550,

  90TH CONG., 1ST SESS., 2 (1967). 

     HOWEVER, THE REPORT ALSO RECOGNIZED "THAT TAKEOVER BIDS SHOULD

  NOT BE DISCOURAGED BECAUSE THEY SERVE A USEFUL PURPOSE IN

  PROVIDING A CHECK ON ENTRENCHED BUT INEFFICIENT MANAGEMENT." 
ID.,

  AT 3. 

/9/ BECAUSE THIS CASE INVOLVES ONLY THE AVAILABILITY OF INJUNCTIVE
RELIEF TO REMEDY A SEC. 13 (D) VIOLATION FOLLOWING COMPLIANCE WITH THE
REPORTING REQUIREMENTS, IT DOES NOT REQUIRE US TO DECIDE WHETHER OR
UNDER WHAT CIRCUMSTANCES A CORPORATION COULD OBTAIN A DECREE ENJOINING
A SHAREHOLDER WHO IS CURRENTLY IN VIOLATION OF SEC. 13 (D) FROM
ACQUIRING FURTHER SHARES, EXERCISING VOTING RIGHTS, OR LAUNCHING A
TAKEOVER BID, PENDING COMPLIANCE WITH THE REPORTING REQUIREMENTS. 

/10/ THE COURT WAS ADVISED BY RESPONDENT THAT SUCH A SUIT IS NOW
PENDING IN THE DISTRICT COURT AND CLASS ACTION CERTIFICATION HAS BEEN
SOUGHT.  ALTHOUGH WE INTIMATE NO VIEWS REGARDING THE MERITS OF THAT
CASE, IT PROVIDES A POTENTIAL SANCTION FOR PETITIONER'S VIOLATION OF
THE WILLIAMS ACT. 

/11/ IN ITS BRIEF ON THE MERITS RESPONDENT ARGUES THAT "GENUINE
ISSUES OF MATERIAL FACT EXIST AS TO THE KNOWLEDGE, MOTIVES, PURPOSES
AND PLANS IN (PETITIONER'S) RAPID ACQUISITION OF" ITS STOCK AND THAT,
AT THE VERY LEAST, THE CASE SHOULD BE REMANDED FOR TRIAL ON THES
ISSUES.  THIS POINT WAS NOT RAISED IN THE PETITION FOR CERTIORARI OR
RESPONDENT'S OPPOSITION THERETO, NOR WAS IT MADE THE SUBJECT OF A CROSS
PETITION.  BECAUSE IT WOULD ALTER THE JUDGMENT OF THE COURT OF APPEALS,
WHICH LIKE THAT OF THE DISTRICT COURT HAD EFFECTIVELY PURT AN END TO
THE LITIGATION, RATHER THAN PROVIDING AN ALTERNATIVE GROUND FOR
AFFIRMING IT, WE WILL NOT CONSIDER THE ARGUMENT WHEN RAISED IN THIS
MANNER.  SEE MILLS V. ELECTRIC AUTO-LITE CO., 396 U.S. 375, 381 N. 4
(1970); MORLEY CONSTR. CO. V. MARYLAND CAS. CO., 300 U.S. 185, 191 -
192 (1937).  CF. WIENER V. UNITED STATES, 357 U.S. 349, 351 N. (1958). 

MR. JUSTICE MARSHALL DISSENTS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

I DISSENT.  JUDGE PELL, DISSENTING BELOW, CORRECTLY IN MY VIEW, READ
THE DECISION OF THE COURT OF APPEALS TO CONSTRUE THE WILLIAMS ACT, AS I
ALSO CONSTRUE IT, TO AUTHORIZE INJUNCTIVE RELIEF UPON THE APPLICATION
OF THE MANAGEMENT INTERESTS "IRRESPECTIVE OF MOTIVATION, IRRESPECTIVE
OF IRREPARABLE HARM TO THE CORPORATION, AND IRRESPECTIVE OF WHETHER THE
PURCHASES WERE DETRIMENTAL TO INVESTORS IN THE COMPANY'S STOCK.  THE
VIOLATION TIMEWISE IS ...ALL THAT IS NEEDED TO TRIGGER THIS RESULT." 
500 F.2D 1011, 1018 (CA7 1974).  IN OTHER WORDS, THE WILLIAMS ACT IS A
PROPHYLACTIC MEASURE CONCEIVED BY CONGRESS AS NECESSARY TO EFFECT THE
CONGRESSIONAL OBJECTIVE "THAT INVESTORS AND MANAGEMENT BE NOTIFIED AT
THE EARLIEST POSSIBLE MOMENT OF THE POTENTIAL FOR A SHIFT IN CORPORATE
CONTROL."  ID., AT 1016.  THE VIOLATION ITSELF ESTABLISHES THE
ACTIONABLE HARM AND NO SHOWING OF OTHER HARM IS NECESSARY TO SECURE
INJUNCTIVE RELIEF.  TODAY'S HOLDING COMPLETELY UNDERMINES THE
CONGRESSIONAL PURPOSE TO PRECLUDE INQUIRY INTO THE RESULTS OF THE
VIOLATION. 

DAVID E. BECKWITH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE MAURICE J. MC SWEENEY AND RICHARD H. PORTER. 

LAURENCE C. HAMMOND, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM
ON THE BRIEF WAS JAMES A. URDAN. 
..END :






CORT V. ASH, 422 US 66 


       CORT ET AL. V. ASH

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 73 - 1908.  ARGUED MARCH 18, 1975--DECIDED JUNE 17,

           1975; 496 F.2D 416, REVERSED. 


RESPONDENT STOCKHOLDER BROUGHT THIS ACTION SEEKING DAMAGES IN FAVOR
OF PETITIONER BETHLEHEM STEEL CORP., A DELAWARE CORPORATION, AND
INJUNCTIVE RELIEF BECAUSE OF ADVERTISEMENTS IN CONNECTION WITH THE 1972
PRESIDENTIAL ELECTION THAT PETITIONER CORPORATE DIRECTORS HAS
AUTHORIZED FROM GENERAL CORPORATE FUNDS IN ALLEGED VILATION OF 18
U.S.C. SEC. 610, WHICH PROHIBITS CORPORATIONS FROM MAKING CONTRIBUTIONS
OR EXPENDITURES IN CONNECTION WITH SPECIFIED FEDERAL ELECTIONS. 
RESPONDENT ALLEGED JURISDICTION UNDER 28 U.S.C. SEC. 1331 AND SOUGHT TO
STATE A PRIVATE CLAIM FOR RELIEF UNDER 18 U.S.C. SEC. 610, AND ALSO
INVOKED PENDENT JURISDICTION FOR AN ULTRA VIRES CLAIM UNDER DELAWARE
LAW.  THE DISTRICT COURT'S DENIAL OF A PRELIMINARY INJUNCTION WAS
UPHELD ON APPEAL, FOLLOWING WHICH RESPONDENT DROPPED THE PENDENT CLAIM
RATHER THAN POST SECURITY FOR EXPENSES UNDER STATE LAW BEFORE
PROCEEDING WITH THAT CLAIM.  THE DISTRICT COURT THEN GRANTED
PETITIONERS' MOTION FOR SUMMARY JUDGMENT.  THE COURT OF APPEALS
REVERSED, HOLDING THAT THE PASSAGE OF THE ELECTION HAD NOT MOOTED THE
CASE SINCE DAMAGES WERE SOUGHT AND THAT "A PRIVATE CAUSE OF ACTION,
WHETHER BROUGHT BY A CITIZEN TO SECURE INJUNCTIVE RELIEF OR BY A
STOCKHOLDER TO SECURE INJUNCTIVE OR DERIVATIVE DAMAGE RELIEF (IS)
PROPER TO REMEDY VIOLATION OF SEC. 610."  AFTER THE COURT OF APPEALS
DECISION CONGRESS ENACTED THE FEDERAL ELECTION CAMPAIGN ACT AMENDMENTS
OF 1974 (HEREINAFTER THE AMENDMENTS), UNDER WHICH, INTER ALIA, THE
FEDERAL ELECTION COMMISSION CAN RECEIVE CITIZEN COMPLAINTS OF STATUTORY
VIOLATIONS AND WHERE WARRANTED REQUEST THE ATTORNEY GENERAL TO SEEK
INJUNCTIVE ACTION.  HELD: 

1.  THE AMENDMENTS CONSTITUTE AN INTERVENING LAW THAT RELEGATES TO
THE COMMISSION'S COGNIZANCE RESPONDENT'S COMPLAINT AS CITIZEN OR
STOCKHOLDER FOR INJUNCTIVE RELIEF AGAINST ANY ALLEGED VIOLATIONS OF
SEC. 610 IN FUTURE ELECTIONS, SINCE THIS COURT MUST EXAMINE THIS CASE
ACCORDING TO THE LAW EXISTING AT THE TIME OF ITS DECISION.  UNITED
STATES V. SCHOONER PEGGY, 1 CRANCH 1038 110; BRADLEY V. RICHMOND SCHOOL
BOARD, 416 U.S. 696, 711.  PP. 74 - 77. 

2.  RESPONDENT STOCKHOLDER'S DERIVATIVE SUIT WITH REGARD TO THE
ALLEGED 1972 VIOLATION CANNOT BE IMPLIED UNDER 18 U.S.C. SEC. 610, AND
RESPONDENT'S REMEDY, IF ANY, MUST BE UNDER DELAWARE'S CORPORATION LAW. 
PP. 77 - 85. 

(A) SECTION 610 WAS PRIMARILY CONCERNED, NOT WITH THE INTERNAL
RELATIONS BETWEEN CORPORATIONS AND STOCKHOLDERS, BUT WITH CORPORATIONS
AS A SOURCE OF AGGREGATED WEALTH AND THEREFORE OF POTENTIAL CORRUPTING
INFLUENCE; THUS THIS STATUTE DIFFERS FROM OTHER CRIMINAL STATUTES IN
WHICH PRIVATE CAUSES OF ACTION HAVE BEEN INFERRED BECAUSE OF A CLEARLY
ARTICULATED FEDERAL RIGHT IN THE PLAINTIFF, E.G., BIVENS V. SIX UNKNOWN
FEDERAL NARCOTICS AGENTS, 403 U.S. 388, OR A PERVASIVE LEGISLATIVE
SCHEME GOVERNING THE RELATIONSHIP BETWEEN THE PLAINTIFF CLASS AND THE
DEFENDANT CLASS IN A PARTICULAR REGARD, E.G., J.I. CASE CO. V. BORAK,
377 U.S. 426.  PP. 78 - 82. 

(B) THE LEGISLATIVE HISTORY OF SEC. 610 SUGGESTS NO CONGRESSIONAL
INTENTION TO VEST IN CORPORATE SHAREHOLDERS A FEDERAL RIGHT TO DAMAGES
FOR A VIOLATION OF THE STATUTE.  PP. 82 - 84. 

(C) A PRIVATE REMEDY WOULD NOT FURTHER THE STATUTORY PURPOSE OF
DULLING CORPORATE INFLUENCE ON FEDERAL ELECTIONS SINCE ANY COMPELLED
REPAYMENT TO THE CORPORATION MIGHT WELL NOT DETER THE INITIAL
VIOLATION.  P. 84. 

(D) THE CAUSE OF ACTION IS ONE TRADITIONALLY RELEGATED TO STATE LAW
IN AN AREA OF PRIMARILY STATE CONCERN.  IN ADDITION TO THE ULTRA VIRES
CLAIM URGED BY RESPONDENT THE ALLEGED MISUSE OF CORPORATE FUNDS MIGHT,
UNDER THE LAW OF SOME STATES, GIVE RISE TO A CAUSE OF ACTION FOR BREACH
OF A FIDUCIARY DUTY.  PP. 84 - 85. 

BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THERE ARE OTHER QUESTIONS, BUT THE PRINCIPAL ISSUE PRESENTED FOR
DECISION IS WHETHER A PRIVATE CAUSE OF ACTION FOR DAMAGES AGAINST
CORPORATE DIRECTORS IS TO BE IMPLIED IN FAVOR OF A CORPORATE
STOCKHOLDER UNDER 18 U.S.C. SEC. 610, A CRIMINAL STATUTE PROHIBITING
CORPORATIONS FROM MAKING "A CONTRIBUTION OR EXPENDITURE IN CONNECTION
WITH ANY ELECTION AT WHICH PRESIDENTIAL AND VICE PRESIDENTIAL ELECTORS
. . . ARE TO BE VOTED FOR."  /1/ WE CONCLUDE THAT IMPLICATION OF SUCH A
FEDERAL CAUSE OF ACTION IS NOT SUGGESTED BY THE LEGISLATIVE CONTEXT OF
SEC. 610 OR REQUIRED TO ACCOMPLISH CONGRESS' PURPOSES IN ENACTING THE
STATUTE.  WE THEREFORE HAVE NO OCCASION TO ADDRESS THE QUESTIONS
WHETHER SEC. 610, PROPERLY CONSTRUED, PROSCRIBES THE EXPENDITURES
ALLEGED IN THIS CASE, OR WHETHER THE STATUTE IS UNCONSTITUTIONAL AS
VIOLATIVE OF THE FIRST AMENDMENT OR OF THE EQUAL PROTECTION COMPONENT
OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

 I 

IN AUGUST AND SEPTEMBER 1972, AN ADVERTISEMENT WITH THE CAPTION " I
SAY LET'S KEEP THE CAMPAIGN HONEST.  MOBILIZE 'TRUTH SQUADS'" APPEARED
IN VARIOUS NATIONAL PUBLICATIONS, INCLUDING TIME, NEWSWEEK, AND U.S.
NEWS AND WORLD REPORT, AND IN 19 LOCAL NEWSPAPERS IN COMMUNITIES WHERE
BETHLEHEM STEEL CORP. (BETHLEHEM), A DELAWARE CORPORATION, HAS PLANTS. 
REPRINTS OF THE ADVERTISEMENT, WHICH CONSISTED MAINLY OF QUOTATIONS
FROM A SPEECH BY PETITIONER STEQART S. CORT, CHAIRMAN OF THE BOARD OF
DIRECTORS OF BETHLEHEM, WERE INCLUDED WITH THE SEPTEMBER 11, 1972,
QUARTERLY DIVIDEND CHECKS MAILED TO THE STOCKHOLDERS OF THE
CORPORATION.  THE MAIN TEXT OF THE ADVERTISEMENT APPEALED TO THE
ELECTORATE TO "ENCOURAGE RESPONSIBLE, HONEST, AND TRUTHFUL
CAMPAIGNING."  IT ALLEGED THAT VIGILANCE WAS NEEDED BECAUSE "CARELESS
RHETORIC AND ACCUSATIONS ... ARE BEING THROWN AROUND THESE DAYS--THEIR
MAIN TARGET BEING THE BUSINESS COMMUNITY."  IN ITALICS, UNDER A PICTURE
OF MR. CORT, THE ADVERTISEMENT QUOTED "THE FOLLOWING STATEMENT MADE BY
A POLITICAL CANDIDATE:  ' THE TIME HAS COME FOR A TAX SYSTEM THAT SAYS
TO BIG BUSINESS--YOU MUST PAY YOUR FAIR SHARE.'"  IT THEN PRINTED MR.
CORT'S REJOINDER TO THIS IN HIS SPEECH, INCLUDING HIS OPINION THAT TO
SAY "LARGE CORPORATIONS (ARE) NOT CARRYING THEIR FAIR SHARE OF THE TAX
BURDEN" IS "BALONEY."  THE ADVERTISEMENT CONCLUDED WITH AN OFFER TO
SEND, ON REQUEST, COPIES OF MR. CORT'S ENTIRE SPEECH /2/ AND A FOLDER
"TELLING HOW TO GO ABOURT ACTIVATING TRUTH SQUADS."  /3/  THESE
PUBLICATIONS COULD BE OBTAINED FREE FROM THE PUBLIC AFFAIRS DEPARTMENT
OF BETHLEHEM.  IT IS STIPULATED THAT THE ENTIRE COSTS OF THE
ADVERTISEMENTS AND VARIOUS MAILINGS WERE PAID FROM BETHLEHEM'S GENERAL
CORPORATE FUNDS.  APP. A229 - A30; 350 F.SUPP.  227, 229 (ED PA.
1972). 

RESPONDENT OWNS 50 SHARES OF BETHLEHEM STOCK AND WAS QUALIFIED TO
VOTE IN THE PRESIDENTIAL ELECTION.  HE FILED THIS SUIT IN THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ON
SEPTEMBER 28, 1972, ON BEHALF OF HIMSELF AND, DERIVATIVELY, ON BEHALF
OF BETHLEHEM.  THE COMPLAINT SPECIFIED TWO SEPARATE AND DISTINCT BASES
FOR JURISDICTION AND RELIEF.  COUNT 1 ALLEGED JURISDICTION UNDER 28
U.S.C. SEC. 1331 AND SOUGHT TO STATE A PRIVATE CLAIM FOR RELIEF UNDER
18 U.S.C. SEC. 610, WHICH, AS MENTIONED, IN TERMS PROVIDES ONLY FOR A
CRIMINAL PENALTY.  COUNT II INVOKED PENDENT JURISDICTION FOR A CLAIM
UNDER DELAWARE LAW, ALLEGING THAT THE CORPORATE CAMPAIGN EXPENDITURES
WERE "ULTRA VIRES, UNLAWFUL AND (A) WILLFUL, WANTON AND GROSS BREACH OF
(DEFENDANTS') DUTY OWED TO (BETHLEHEM)."  IMMEDIATE INJUNCTIVE RELIEF
AGAINST FURTHER CORPORATE EXPENDITURES IN CONNECTION WITH THE 1972
PRESIDENTIAL ELECTION OR ANY FUTURE CAMPAIGN WAS SOUGHT, AS WELL AS
COMPENSATORY AND PUNITIVE DAMAGES IN FAVOR OF THE CORPORATION. 

THE DISTRICT COURT DENIED A PRELIMINARY INJUNCTION ON OCTOBER 25,
1972.  350 F.SUPP.  227.  WHILE THE DENIAL WAS SUPPORTED ON THREE
GROUNDS, /4/ IT WAS UPHELD ON APPEAL TO THE COURT OF APPEALS FOR THE
THIRD CIRCUIT ONLY ON THE NARROW GROUND THAT IRREPARABLE HARM WAS NOT
SHOWN.  471 F.2D 811 (1973).  /5/ 

AFTER THE AFFIRMANCE ON APPEAL, PETIONERS SOUGHT AN ORDER REQUIRING
RESPONDENT TO POST SECURITY FOR EXPENSES AS REQUIRED BY PENNSYLVANIA
LAW.  THE COURT DECLINED TO ORDER SUCH SECURITY WITH REGARD TO THE
FEDERAL CAUSE OF ACTION ALLEGED IN COUNT I, BUT DID ORDER RESPONDENT TO
POST $35,000 BEFORE PROCEEDING WITH THE PENDENT CLAIM UNDER COUNT II.
RATHER THAN POST SECURITY, RESPONDENT FILED AN AMENDED COMPLAINT, WHICH
DROPPED COUNT II, THE SEPARATE STATE CAUSE OF ACTION, FROM THE CASE. 
/6/ 

THE DISTRICT COURT THEN GRANTED PETITIONERS' MOTION FOR SUMMARY
JUDGMENT WITHOUT OPINION.  THE COURT OF APPEALS REVERSED, 496 F.2D 416
(1974).  THE COURT OF APPEALS HELD THAT, SINCE THE AMENDED COMPLAINT
SOUGHT DAMAGES FOR THE CORPORATION FOR VIOLATION OF SEC. 610, THE
CONTROVERSY WAS NOT MOOT, ALTHOUGH THE ELECTION WHICH OCCASIONED IT WAS
PAST.  THE COURT OF APPEALS HELD FURTHER THAT "A PRIVATE CAUSE OF
ACTION, WHETHER BROUGHT BY A CITIZEN TO SECURE INJUNCTIVE RELIEF OR BY
A STOCKHOLDER TO SECURE INJUNCTIVE OR DERIVATIVE DAMAGE RELIEF (IS)
PROPER TO REMEDY VIOLATION OF SEC. 610."  ID., AT 424.  WE GRANTED
CERTIORARI, 419 U.S. 992 (1974).  WE REVERSE. 

        II 

WE CONSIDER FIRST THE HOLDING OF THE COURT OF APPEALS THAT
RESPONDENT HAS "A PRIVATE CAUSE OF ACTION ... (AS) A CITIZEN (OR AS A
STOCKHOLDER) TO SECURE INJUNCTIVE RELIEF."  THE 1972 PRESIDENTIAL
ELECTION IS HISTORY, AND RESPONDENT AS CITIZEN OR STOCKHOLDER SEEKS
INJUNCTIVE RELIEF ONLY AS TO FUTURE ELECTIONS.  IN THAT CIRCUMSTANCE, A
STATUTE ENACTED AFTER THE DECISION OF THE COURT OF APPEALS, THE FEDERAL
ELECTION CAMPAIGN ACT AMENDMENTS OF 1974, PUB. L. 93 - 443, 88 STAT.
1263 (AMENDMENTS) (AMENDING THE FEDERAL ELECTION CAMPAIGN ACT OF 1971,
86 STAT. 3), REQUIRES REVERSAL OF THE HOLDING OF THE COURT OF APPEALS. 

IN TERMS, SEC. 610 IS ONLY A CRIMINAL STATUTE, PROVIDING A FINE OR
IMPRISONMENT FOR ITS VIOLATION.  AT THE TIME THIS SUIT WAS FILED, THERE
WAS NO STATUTORY PROVISION FOR CIVIL ENFORCEMENT OF SEC. 610, WHETHER
BY PRIVATE PARTIES OR BY A GOVERNMENT AGENCY.  BUT THE AMENDMENTS
CREATED A FEDERAL ELECTION COMMISSION, 2 U.S.C.A. SEC. 437C (A)(1)
(SUPP. FEB. 1975); /7/ ESTABLISHED AN ADMINISTRATIVE PROCEDURE FOR
PROCESSING COMPLAINTS OF ALLEGED VIOLATIONS OF SEC. 610 AFTER JANUARY
1, 1975, 2 U.S.C.A. SEC. 437G (SUPP. FEB. 1975), AND SEC. 410, NOTE
FOLLOWING 2 U.S.C.A. SEC. 431 (SUPP. FEB. 1975); AND PROVIDED THAT
"(ANY PERSON WHO BELIEVES A VIOLATION...(OF SECTION 610) HAS OCCURRED
MAY FILE A COMPLAINT WITH THE COMMISSION."  2 U.S.C.A. SEC. 437G
(A)(1)(A) (SUPP. FEB. 1975).  THE COMMISSION MUST EITHER INVESTIGATE
THE COMPLAINT OR REFER THE COMPLAINT TO THE ATTORNEY GENERAL, 2
U.S.C.A. SEC. 437GA) (2)(A) AND (B) (SUPP. FEB. 1975).  /8/  IF THE
COMMISSION CHOOSES TO INVESTIGATE THE COMPLAINT, AND AFTER
INVESTIGATION DETERMINES THAT "ANY PERSON HAS ENGAGED OR IS ABOUT TO
ENGAGE IN ANY ACTS OR PRACTICES WHICH CONSTITUTE OR WILL CONSTITUTE A
VIOLATION" OF SEC. 610, THE COMMISSION MAY REQUEST THE ATTORNEY GENERAL
TO "INTSTITUTE A CIVIL ACTION FOR RELIEF, INCLUDING A PERMANENT OR
TEMPORARY INJUNCTION, RESTRAINING ORDER, OR ANY OTHER APPROPRIATE ORDER
...."  2 U.S.C.A. SEC. 437G (A)(7) (SUPP. FEB. 1975).  AND 2 U.S.C.A.
SEC. 437C (B) (SUPP. FEB. 1975), EXPRESSLY VESTS THE COMMISSION WITH
"PRIMARY JURISDICTION" OVER ANY CLAIMED VIOLATION OF SEC. 610 WITHIN
ITS PURVIEW.  /9/  CONSEQUENTLY, A COMPLAINANT SEEKING AS CITIZEN OR
STOCKHOLDER TO ENJOIN ALLEGED VIOLATIONS OF SEC. 610 IN FUTURE
ELECTIONS MUST HENCEFORTH PURSUE THE STATUTORY REMEDY OF A COMPLAINT TO
THE COMMISSION, AND INVOKE ITS AUTHORITY TO REQUEST THE ATTORNEY
GENERAL TO SEEK THE INJUNCTIVE RELIEF.  H.R. CONG. REP. NO. 93 - 1438,
P. 94 (1974).  THUS, THE AMENDMENTS CONSTITUTE AN INTERVENING LAW THAT
RELEGATES TO THE COMMISSION'S COGNIZANCE RESPONDENT'S COMPLAINT AS
CITIZEN OR STOCKHOLDER FOR INJUNCTIVE RELIEF AGAINST ANY ALLEGED
VIOLATIONS OF SEC. 610 IN FUTURE ELECTIONS.  IN THAT CIRCUMSTANCE, THE
HOLDING OF THE COURT OF APPEALS MUST BE REVERSED, FOR OUR DUTY IS TO
DECIDE THIS CASE ACCORDING TO THE LAW EXISTING AT THE TIME OF OUR
DECISION. 

THE GOVERNING RULE WAS ANNOUNCED BY MR. CHIEF JUSTICE MARSHALL IN
UNITED STATES V. SCHOONER PEGGY, 1 CRANCH 103, 110 (1801): 

     " IT IS IN THE GENERAL TRUE THAT THE PROVINCE OF AN APPELLATE

  COURT IS ONLY TO ENQUIRE WHETHER A JUDGMENT WHEN RENDERED WAS

  ERRONEOUS OR NOT.  BUT IF SUBSEQUENT TO THE JUDGMENT AND BEFORE

  THE DECISION OF THE APPELLATE COURT, A LAW INTERVENES AND

POSITIVELY CHANGES THE RULE WHICH GOVERNS, THE LAW MUST BE

 OBEYED, OR ITS OBLIGATION DENIED.  IF THE LAW BE

  CONSTITUTIONAL... I KNOW OF NO COURT WHICH CAN CONTEST ITS

OBLIGATION.... IN SUCH A CASE THE COURT MUST DECIDE ACCORDING TO

  EXISTING LAWS, AND IF IT BE NECESSARY TO SET ASIDE A JUDGMENT,

  RIGHTFUL WHEN RENDERED, BUT WHICH CANNOT BE AFFIRMED BUT IN

  VIOLATION OF LAW, THE JUDGMENT MUST BE SET ASIDE." 

WE MOST RECENTLY REAFFIRMED THE PRINCIPLE OF THE SCHOONER PEGGY IN
BRADLEY V. RICHMOND SCHOOL BOARD, 416 U.S. 696, 711 (1974), WHERE WE
SAID:  " WE ANCHOR OUR HOLDING IN THIS CASE ON THE PRINCIPLE THAT A
COURT IS TO APPLY THE LAW IN EFFECT AT THE TIME IT RENDERS ITS
DECISION, UNLESS DOING SO WOULD RESULT IN MANIFEST INJUSTICE OR THERE
IS STATUTTORY DIRECTION OR LEGISLATIVE HISTORY TO THE CONTRARY."  THERE
IS NO "STATUTORY DIRECTION OR LEGISLATIVE HISTORY TO THE CONTRARY" IN
OR RESPECTING THE AMENDMENTS, NOR IS THERE ANY POSSIBLE "MANIFEST
INJUSTICE" IN REQUIRING RESPONDENT TO PURSUE WITH RESPECT TO ALLEGED
VIOLATIONS WHICH HAVE YET TO OCCUR THE STATUTORY REMEDY FOR INJUNCTIVE
RELIEF CREATED BY THE AMENDMENTS. 

        III 

OUR CONCLUSION IN PART II PRETERMITS ANY OCCASION FOR ADDRESSING THE
QUESTION OF RESPONDENT'S STANDING AS A CITIZEN AND VOTER TO MAINTAIN
THIS ACTION, FOR RESPONDENT SEEKS DAMAGES ONLY DERIVATIVELY AS
STOCKHOLDER.  THEREFORE, WE TURN NEXT TO THE HOLDING OF THE COURT OF
APPEALS THAT "A PRIVATE CAUSE OF ACTION...BY A STOCKHOLDER TO
SECURE...DERIVATIVE DAMAGE RELIEF (IS) PROPER TO REMEDY VILATION OF
SEC. 610."  WE HOLD THAT SUCH RELIEF IS NOT AVAILABLE WITH REGARD TO A
1972 VIOLATION UNDER SEC. 610 ITSELF, BUT RATHER IS AVAILABLE, IF AT
ALL, UNDER DELAWARE LAW GOVERNING CORPORATIONS.  /10/ 

IN DETERMINING WHETHER A PRIVATE REMEDY IS IMPLICIT IN A STATUTE NOT
EXPRESSLY PROVIDING ONE, SEVERAL FACTORS ARE RELEVANT.  FIRST, IS THE
PLAINTIFF "ONE OF THE CLASS FOR WHOSE ESPECIAL BENEFIT THE STATUTE WAS
ENACTED," TEXAS & PACIFIC R. CO. V. RIGSBY, 241 U.S. 33, 39 (1916)
(EMPHASIS SUPPLIED)--THAT IS, DOES THE STATUTE CREATE A FEDERAL RIGHT
IN FAVOR OF THE PLAINTIFF?  SECOND, IS THERE ANY INDICATION OF
LEGISLATIVE INTENT, EXPLICIT OR IMPLICIT, EITHER TO CREATE SUCH A
REMEDY OR TO DENY ONE?  SEE, E.G., NATIONAL RAILROAD PASSENGER CORP. V.
NATIONAL ASSN. OF RAILROAD PASSENGERS, 414 U.S. 453, 458, 460 (1974)
(AMTRAK).  THIRD, IS IT CONSISTENT WITH THE UNDERLYING PURPOSES OF THE
LEGISLATIVE SCHEME TO IMPLY SUCH A REMEDY FOR THE PLAINTIFF?  SEE,
E.G., AMSTRAK, SUPRA; SECURITIES INVESTOR PROTECTION CORP. V. BARBOUR,
421 U.S. 412, 423 (1975); CALHOON V. HARVEY, 379 U.S. 134 (1964).  AND
FINALLY, IS THE CAUSE OF ACTION ONE TRADITIONALLY RELEGATED TO STATE
LAW, IN AN AREA BASICALLY THE CONCERN OF THE STATES, SO THAT IT WOULD
BE INAPPROPRIATE TO INFER A CAUSE OF ACTION BASED SOLELY ON FEDERAL
LAW?  SEE WHEELDIN V. WHEELER, 373 U.S. 647, 652 (1963); CF. J.I. CASE
CO. V. BORAK, 377 U.S. 426, 434 (1964); BIVENS V. SIX UNKNOWN FEDERAL
NARCOTICS AGENTS, 403 U.S. 388, 394 - 395 (1971); ID., AT 400 (HARLAN,
J., CONCURRING IN JUDGMENT). 

THE DISSENTING JUDGE IN THE COURT OF APPEALS AND PETITIONERS HERE
SUGGEST THAT WHERE A STATUTE PROVIDES A PENAL REMEDY ALONE, IT CANNOT
BE REGARDED AS CREATING A RIGHT IN ANY PARTICULAR CLASS OF PEOPLE.  "
EVERY CRIMINAL STATUTE IS DESIGNED TO PROTECT SOME INDIVIDUAL, PUBLIC,
OR SOCIAL INTEREST.... TO FIND AN IMPLIED CIVIL CAUSE OF ACTION FOR THE
PLAINTIFF IN THIS CASE IS TO FIND AN IMPLIED CIVIL RIGHT OF ACTION FOR
EVERY INDIVIDUAL, SOCIAL, OR PUBLIC INTEREST WHICH MIGHT BE INVADED BY
VIOLATION OF ANY CRIMINAL STATUTE.  TO DO THIS IS TO CONCLUDE THAT
CONGRESS INTENDED TO ENACT A CIVIL CODE COMPANION TO THE CRIMINAL
CODE."  496 F.2D, AT 428 - 429 (ALDISERT, J., DISSENTING).  CF.
NASHVILLE MILK CO. V. CARNATION CO., 355 U.S. 373, 377 (1958). 

CLEARLY, PROVISION OF A CRIMINAL PENALTY DOES NOT NECESSARILY
PRECLUDE IMPLICATION OF A PRIVATE CAUSE OF ACTION FOR DAMAGES. 
WYANDOTTE TRANSPORTATION CO. V. UNITED STATES, 389 U.S. 191, 201 - 202
(1967); SEE ALSO J.I. CASE CO. V. BORAK, SUPRA; TEXAS & PACIFIC R. CO.
V. RIGSBY, SUPRA.  HOWEVER, IN WYANDOTTE, BORAK, AND RIGSBY, THERE WAS
AT LEAST A STATUTORY BASIS FOR INFERRING THAT A CIVIL CAUSE OF ACTION
OF SOME SORT LAY IN FAVOR OF SOMEONE.  /11/ HERE, THERE WAS NOTHING
MORE THAN A BARE CRIMINAL STATUTE, WITH ABSOLUTELY NO INDICATION THAT
CIVIL ENFORCEMENT OF ANY KIND WAS AVAILABLE TO ANYONE.     WE NEED NOT,
HOWEVER, GO SO FAR AS TO SAY THAT IN THIS CIRCUMSTANCE A BARE CRIMINAL
STATUTE CAN NEVER BE DEEMED SUFFICIENTLY PROTECTIVE OF SOME SPECIAL
GROUP SO AS TO GIVE RISE TO A PRIVATE CAUSE OF ACTION BY A MEMBER OF
THAT GROUP.  FOR THE INTENT TO PROTECT CORPORATE SHAREHOLDERS
PARTICULARLY WAS AT BEST A SUBSIDIARY PRUPOSE OF SEC. 610, AND THE
OTHER RELEVANT FACTORS ALL EITHER ARE NOT HELPFUL OR MILITATE AGAINST
IMPLYING A PRIVATE CAUSE OF ACTION. 

FIRST, SEC. 610 IS DERIVED FROM THE ACT OF JANUARY 26, 1907, /12/
WHICH "SEEMS TO HAVE BEEN MOTIVATED BY TWO CONSIDERATIONS.  FIRST, THE
NECESSITY FOR DESTROYING THE INFLUENCE OVER ELECTIONS WHICH
CORPORATIONS EXERCISED THROUGH FINANCIAL CONTRIBUTION.  SECOND, THE
FEELING THAT CORPORATE OFFICIALS HAD NO MORAL RIGHT TO USE CORPORATE
FUNDS FOR CONTRIBUTION TO POLITICAL PARTIES WITHOUT THE CONSENT OF THE
STOCKHOLDERS."  UNITED STATES V. CIO, 335 U.S. 106, 113 (1948).  SEE 40
CONG. REC. 96 (1905) (ANNUAL MESSAGE OF PRESIDENT THEODORE ROOSEVELT). 
RESPONDENT BASES HIS DERIVATIVE ACTION ON THE SECOND PURPOSE, CLAIMING
THAT THE INTENT TO PROTECT STOCKHOLDERS FROM USE OF THEIR INVESTED
FUNDS FOR POLITICAL PURPOSES DEMONSTRATES THAT THE STATUTE SET UP A
FEDERAL RIGHT IN SHAREHOLDERS NOT TO HAVE CORPORATE FUNDS USED FOR THIS
PURPOSE. 

HOWEVER, THE LEGISLATIVE HISTORY OF THE 1907 ACT, RECITED AT LENGTH
IN UNITED STATES V. UAW, 352 U.S. 567 (1957), DEMONSTRATES THAT THE
PROTECTION OF ORDINARY STOCKHOLDERS WAS AT BEST A SECONDARY CONCERN. 
/13/ RATHER, THE PRIMARY PURPOSE F THE 1907 ACT, AND OF THE 1925
FEDERAL CORRUPT PRACATICES ACT, 43 STAT. 1070, WHICH REENACTED THE 1907
PROVISION WITH SOME CHANGES AS SEC. 313 OF THAT ACT, SEE UNITED STATES
V. UAW, SUPRA, AT 577, WAS TO ASSURE THAT FEDERAL ELECTIONS ARE "FREE
FROM THE PWERE OF MONEY,'" 352 U.S., AT 574, TO ELIMINATE "THE APPARENT
HOLD ON POLITICAL PARTIES WHICH BUSINESS INTERESTS...SEEK AND SOMETIMES
OBTAIN BY REASON OF LIBERAL CAMPAIGN CONTRIBUTIONS.'"  ID., AT 576,
QUOTING 65 CONG. REC. 9507 (REMARKS OF SEN. ROBINSON).  SEE ALSO UNITED
STATES V. UAW, SUPRA, AT 571 - 577.  THUS, THE LEGISLATION WAS
PRIMARILY CONCERNED WITH CORPORATIONS AS A SOURCE OF AGGREGATED WEALTH
AND THEREFORE OF POSSIBLE CORRUPTING INFLUENCE, AND NOT DIRECTLY WITH
THE INTERNAL RELATIONS BETWEEN THE CORPORATIONS AND THEIR
STOCKHOLDERS.  IN CONTRAST, IN THOSE SITUATIONS IN WHICH WE HAVE
INFERRED A FEDERAL PRIVATE CAUSE OF ACTION NOT EXPRESSLY PROVIDED,
THERE HAS GENERALLY BEEN A CLEARLY ARTICULATED FEDERAL RIGHT IN THE
PLAINTIFF, E.G., BIVENS V. SIX UNKNOWN FEDERAL NARCOTICS AGENTS, SUPRA,
OR A PERVASIVE LEGISLATIVE SCHEME GOVERNING THE RELATIONSHIP BETWEEN
THE PLAINTIFF CLASS AND THE DEFENDANT CLASS IN A PARTICULAR REGARD,
E.G., J.I. CASE CO. V. BORAK, SUPRA. 

SECOND, THERE IS NO INDICATION WHATEVER IN THE LEGISLATIVE HISTORY
OF SEC. 610 WHICH SUGGESTS A CONGRESSIONAL INTENTION TO VEST IN
CORPORATE SHAREHOLDERS A FEDERAL RIGHT TO DAMAGES FOR VIOLATION OF SEC.
610.  TRUE, IN SITUATIONS IN WHICH IT IS CLEAR THAT FEDERAL LAW HAS G
RANTED A CLASS OF PERSONS CERTAIN RIGHTS, IT IS NOT NECESSARY TO SHOW
AN INTENTION TO CREATE A PRIVATE CAUSE OF ACTION, ALTHOUGH AN EXPLICIT
PURPOSE TO DENY SUCH CAUSE OF ACTION WOULD BE CONTROLLING.  /14/ BUT
WHERE, AS HERE, IT IS AT LEAT DUBIOUS WHETHER CONGRESS INTENDED TO VEST
IN THE PLAINTIFF CLASS RIGHTS BROADER THAN THOSE PROVIDED BY STATE
REGULATION OF CORPORATIONS, THE FACT THAT THERE IS NO SUGGESTION AT ALL
THAT SEC. 610 MAY GIVE RISE TO A SUIT FOR DAMAGES OR, INDEED, TO ANY
CIVIL CAUSE OF ACTION, REINFORCES THE CONCLUSION THAT THE EXPECTATION,
IF ANY, WAS THAT THE RELATIONSHIP BETWEEN CORPORATIONS AND THEIR
STOCKHOLDERS WOULD CONTINUE TO BE ENTRUSTED ENTIRELY TO STAT LAW. 

THIRD, WHILE "IT IS THE DUTY OF THE COURTS TO BE ALERT TO PROVIDE
SUCH REMEDIES AS ARE NECESSARY TO MAKE EFFECTIVE THE CONGRESSIONAL
PURPOSE," J.I. CASE CO. V. BORAK, 377 U.S., AT 433, IN THIS INSTANCE
THE REMEDY SOUGHT WOULD NOT AID THE PRIMARY CONGRESSIONAL GOAL. 
RECOVERY OF DERIVATIVE DAMAGES BY THE CORPORATION FOR VIOLATION OF SEC
610 WOULD NOT CURE THE INFLUENCE WHICH THE USE OF CORPORATE FUNDS IN
THE FIRST INSTANCE MAY HAVE HAD ON A FEDERAL ELECTION.  RATHER, SUCH A
REMEDY WOULD ONLY PERMIT DIRECTORS IN EFFEC TO "BORROW" CORPORATE FUNDS
FOR A TIME; THE LATER COMPELLED REPAYMENT MIGHT WELL NOT DETER THE
INITIAL VIOLATION, AND WOULD CERTAINLY NOT DECREASE THE IMPACT OF THE
USE OF SUCH FUNDS UPON AN ELECTION ALREADY PAST. 

FOURTH, AND FINALLY, FOR REASONS ALREADY INTIMATED, IT IS ENTIRELY
APPROPRAIATE IN THIS INSTANCE TO RELEGATE RESPONDENT AND OTHERS IN HIS
SITUATION TO WHATEVER REMEDY IS CREATED BY STATE LAW.  IN ADDITION TO
THE ULTRA VIRES ACTION PRESSED HERE, SEE N. 6, SUPRA, THE USE OF
CORPORATE FUNDS IN VIOLATION OF FEDERAL LAW MAY, UNDER THE LAW OF SOME
STATES, GIVE RISE TO A CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY. 
SEE, E.G., MILLER V.. AMERICAN TELEPHONE & TELEGRAPH CO., 507 F.2D 759
(CA3 1974).  CORPORATIONS ARE CREATURES OF STATE LAW, AND INVESTORS
COMMIT THEIR FUNDS TO CORPORATE DIRECTORS ON THE UNDERSTANDING THAT,
EXCEPT WHERE FEDERAL LAW EXPRESSLY REQUIRES CERTAIN RESPONSIBILITIES OF
DIRECTORS WITH RESPECT TO STOCKHOLDERS, STATE LAW WILL GOVERN THE
INTERNAL AFFAIRS OF THE CORPORATION.  IF, FOR EXAMPLE, STATE LAW
PERMITS CORPORATIONS TO USE CORPORATE FUNDS AS CONTRIBUTIONS IN STATE
ELECTIONS, SEE MILLER, SUPRA, AT 763 N. 4, SHAREHOLDERS ARE ON NOTICE
THAT THEIR FUNDS MAY BE SO USED AND HAVE NO RECOURSE UNDER ANY FEDERAL
STATUTE.  WE ARE NECESSARILY RELUCTANT TO IMPLY A FEDERAL RIGHT TO
RECOVER FUNDS USED IN VIOLATION OF A FEDERAL STATUTE WHERE THE LAWS
GOVERNING THE CORPORATION MAY PUT A SHAREHOLDER ON NOTICE THAT THERE
MAY BE NO SUCH RECOVERY. 

IN BORAK, SUPRA, WE SAID:  "(IF) THE LAW OF THE STATE HAPPENED TO
ATTACH NO RESPONSIBILITY TO THE USE OF MISLEADING PROXY STATEMENTS, THE
WHOLE PURPOSE OF (SEC. 14 (A) OF THE SECURITIES EXCHANGE ACT OF 1934)
MIGHT BE FRUSTRATED."  377 U.S., AT 434 - 435.  HERE, COMMITTING
RESPONDENT TO STATE-PROVIDED REMEDIES WOULD HAVE NO SUCH EFFECT.  IN
BORAK, THE STATUTE INVOLVED WAS CLEARLY AN INTRUSION OF FEDERAL LAW
INTO THE INTERNAL AFFAIRS OF CORPORATIONS; TO THE EXTENT THAT STATE LAW
DIFFERED OR IMPEDED SUIT, THE CONGRESSIONAL INTENT COULD BE COMPROMISED
IN STATE-CREATED CAUSES OF ACTION.  IN THIS CASE, CONGRESS WAS
CONCERNED, NOT WITH REGULATING CORPORATIONS AS SUCH, BUT WITH DULLING
THEIR IMPACT UPON FEDERAL ELECTIONS.  AS WE HAVE SEEN, THE EXISTENCE OR
NONEXISTENCE OF A DERIVATIVE CAUSE OF ACTION FOR DAMAGES WOULD NOT AID
OR HINDER THIS PRIMARY GOAL. 

BECAUSE INJUNCTIVE RELIEF IS NOT PRESENTLY AVAILABLE IN LIGHT OF THE
FEDERAL ELECTION CAMPAIGN ACT AMENDMENTS OF 1974, AND BECAUSE
IMPLICATION OF A FEDERAL RIGHT OF DAMAGES ON BEHALF OF A CORPORATION
UNDER SEC 610 WOULD INTRUDE INTO AN AREA TRADITIONALLY COMMITTED TO
STATE LAW WITHOUT AIDING THE MAIN PURPOSE OF SEC. 610, WE REVERSE. 

           IT IS SO ORDERED. 

/1/ TITLE 18 U.S.C. SEC. 610 (1970 ED. AND SUPP. III) PROVIDED IN
PART AS FOLLOWS WHEN THIS SUIT WAS FILED: 

" CONTRIBUTIONS OR EXPENDITURES BY NATIONAL BANKS, CORPORATIONS OR
LABOR ORGANIZATIONS. 

" IT IS UNLAWFUL FOR ANY NATIONAL BANK, OR ANY CORPORATION ORGANIZED
BY AUTHORITY OF ANY LAW OF CONGRESS, TO MAKE A CONTRIBUTION OR
EXPENDITURE IN CONNECTION WITH ANY ELECTION TO ANY POLITICAL OFFICE, OR
IN CONNECTION WITH ANY PRIMARY ELECTION OR POLITICAL CONVENTION OR
CAUCUS HELD TO SELECT CANDIDATES FOR ANY POLITICAL OFFICE, OR FOR ANY
CORPORATION WHATEVER, OR ANY LABOR ORGANIZATION TO MAKE A CONTRIBUTION
OR EXPENDITURE IN CONNECTION WITH ANY ELECTION AT WHICH PRESIDENTIAL
AND VICE PRESIDENTIAL ELECTORS OR A SENATOR OR REPRESENTATIVE IN, OR A
DELEGATE OR RESIDENT COMMISSIONER TO CONGRESS ARE TO BE VOTED FOR, OR
IN CONNECTION WITH ANY PRIMARY ELECTION OR POLITICAL CONVENTION OR
CAUCUS HELD TO SELECT CANDIDATES FOR ANY OF THE FOREGOING OFFICES, OR
FOR ANY CANDIDATE, POLITICAL COMMITTEE, OR OTHER PERSON TO ACCEPT OR
RECEIVE ANY CONTRIBUTION PROHIBED BY THIS SECTION. 

" EVERY CORPORATION OR LABOR ORGANIZATION WHICH MAKES ANY
CONTRIBUTION OR EXPENDITURE IN VIOLATION OF THIS SECTION SHALL BE FINED
NOT MORE THAN $5,000; AND EVERY OFFICER OR DIRECTOR OF ANY CORPORATION,
OR OFFICER OF ANY LABOR ORGANIZATION, WHO CONSENTS TO ANY CONTRIBUTION
OR EXPENDITURE BY THE CORPORATION OR LABOR ORGANIZATION, AS THE CASE
MAY BE, AND ANY PERSON WHO ACCEPTS OR RECEIVES ANY CONTRIBUTION, IN
VIOLATION OF THIS SECTION, SHALL BE FINED NOT MORE THAN $1,000 OR
IMPRISONED NOT MORE THAN ON YEAR, OR BOTH; AND IF THE VIOLATION WAS
WILLFUL, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE
THAN TWO YEARS, OR BOTH. 

        * * * * * 

" AS USED IN THIS SECTION, THE PHRASE 'CONTRIBUTION OR EXPENDITURE'
SHALL INCLUDE ANY DIRECT OR INDIREC PAYMENT, DISTRIBUTION, LOAN,
ADVANCE, DEPOSIT, OR GIFT OF MONEY, OR ANY SERVICES, OR ANYTHING OF
VALUE (EXCEPT A LOAN OF MONEY BY A NATIONAL OR STATE BANK MADE IN
ACCORDANCE WITH THE APPLICABLE BANKING LAWS AND REGULATIONS AND IN THE
ORDINARY COURSE OF BUSINESS) TO ANY CANDIDATE, CAMPAIGN COMMITTEE, OR
POLITICAL PARTY OR ORGANIZATION, IN CONNECTION WITH ANY ELECTION TO ANY
OF THE OFFICES REFERRED TO IN THIS SECTION; BUT SHALL NOT INCLUDE
COMMUNICATIONS BY A CORPORATION TO ITS STOCKHOLDERS AND THEIR FAMILIES
OR BY A LABOR ORGANIZATION TO ITS MEMBERS AND THEIR FAMILIES ON ANY
SUBJECT; NONPARTISAN REGISTRATION AND GET-OUT-THE-VOTE CAMPAIGNS BY A
CORPORATION AIMED AT ITS STOCKHOLDERS AND THEIR FAMILIES, OR BY A LABOR
ORGANIZATION AIMED AT ITS MEMBERS AND THEIR FAMILIES; THE
ESTABLISHMENT, ADMINISTRATION, AND SOLICITATION OF CONTRIBUTIONS TO A
SEPARATE SEGREGATED FUND TO BE UTILIZED FOR POLITICAL PURPOSES BY A
CORPORATION OR LABOR ORGANIZATION:  PROVIDED, THAT IT SHALL BE UNLAWFUL
FOR SUCH A FUND TO MAKE A CONTRIBUTION OR EXPENDITURE BY UTILIZING
MONEY OR ANYTHING OF VALUE SECURED BY PHYSICAL FORCE, JOB
DISCRIMINATION, FINANCIAL REPRISALS, OR THE THREAT OF FORCE, JOB
DISCRIMINATION, OR FINANCIAL REPRISAL; OR BY DUES, FEES, OR OTHER
MONIES REQUIRED AS A CONDITION OF MEMBERSHIP IN A LABOR ORGANIZATION OR
AS A CONDITION OF EMPLOYMENT, OR BY MONIES OBTAINED IN ANY COMMERCIAL
TRANSACTION." 

DEFINITIONS OF VARIOUS TERMS IN SEC. 610 ARE INCLUDED IN 18 U.S.C.
SEC. 591 (1970 ED., SUPP. III). 

THE FEDERAL ELECTION CAMPAIGN ACT AMENDMENTS OF 1974, PUB. L. 93 -
443, 88 STAT. 1263, SEC. 101 (E), 102 INCREASED SUBSTANTIALLY THE FINES
FOR VIOLATION OF SEC. 610 AND CHANGED MANY OF THE DEFINITIONS IN SEC.
591 OF THE TERMS USED IN SEC. 610. 

/2/ THE SPEECH WAS A GENERAL DEFENSE OF "BIG BUSINESS" AND THE
CURRENT TAX SYSTEM.  ALTHOUGH IT NAMED NO POLITICAL CANDIDATE OR PARTY,
IT WAS IN LARGE PART DEVOTED TO REFUTING STATEMENTS, WHICH WERE QUOTED,
BY "A PROMINENT PRESIDENTIAL CANDIDATE."  THE COMPLAINT IN THIS CASE
ALLEGED THAT THE "CANDIDATE" REFERRED TO WAS QUITE CLEARLY THE
DEMOCRATIC CANDIDATE FOR PRESIDENT AT THE TIME (GEORGE MC GOVERN), APP.
A13.  THE SPEECH CONCLUDED WITH THE SUGGESTION THAT LISTENERS "(M)
OBILIZE 'TRUTH SQADS'"--ORGANIZE TO REFUTE "FALSE OR DECEPTIVE"
STATEMENTS AND "OUTRAGEOUS ACCUSATIONS." 

/3/ THE FOLDER WAS ENTITLED:  " HOW YOU CAN HELP TO KEEP THE
CAMPAIGN HONEST."  IT INCLUDED SUGGESTIONS FOR INFORMING ONESELF ABOUT
THE ELECTION, USING RESEARCH TOOLS, REFUTING "A STATEMENT YOU KNOW TO
BE WRONG," AND ORGANIZING FRIENDS AND NEIGHBORS TO DO THE SAME.  UNLIKE
THE SPEECH AND ADVERTISEMENT, THE FOLDER CONTAINED NO QUOTATIONS FROM
ANY POLITICAL CANDIDATE, NOR ANY DISCUSSION OF ISSUES. 

/4/ FIRST, THE DISTRICT COURT HELD THAT THE PENAL SANCTIONS IN SEC.
610 ARE EXCLUSIVE, AND NO PRIVATE CAUSE OF ACTION IS TO BE IMPLIED. 
350 F.SUPP., AT 231.  SECOND, THE DISTRICT COURT HELD THAT "THE PURPOSE
OF THE ADVERTISEMENT WAS NOT TO INFLUENCE THE ELECTION OF A SPECIFIC
CANDIDATE," AND THEREFORE THAT "THE PAYMENT FOR THE ADVERTISEMENT DID
NOT CONSTITUTE AN 'EXPENDITURE' WITHIN THE MEANING OF...SEC.  610." 
ID., AT 231 - 232.  THIRD, THE COURT FOUND THAT "(IN FAILING TO PROVE A
LIKELIHOOD OF SUCCESS ON THE MERITS, PLAINTIFF HAS FAILED TO PROVE THAT
IRREPARABLE HARM WOULD RESULT IF AN INJUNCTION IS NOT GRANTED."  ID.,
AT 232. 

/5/ IN AFFIRMING, THE COURT OF APPEALS OBSERVED THAT WHILE THE
DISTRICT COURT'S OPINION SEEMED TO PRECLUDE RESPONDENT FROM ANY
ULTIMATE RELIEF, THE OPINION ADDRESSED ONLY A REQUEST FOR PRELIMINARY
RELIEF AND THEREFORE HAD TO BE CONSIDERED ONLY TENTATIVE, LEAVING
RESPONDENT FREE TO RENEW HIS CONTENTIONS ON FINAL HEARING.  471 F.2D,
AT 812. 

/6/ RESPONDENT SEEMS TO INVITE THE COURT, IN EFFECT, TO REINSTATE
COUNT II.  WE DECLINE TO DO SO.  HE ARGUES, SOMEWHAT CRYPTICALLY, THAT
THE ORDER TO POST SECURITY "WAS A NULITY" SINCE "(A) COURT MAY NOT
DISMISS A THEORY OF RELIEF."  BRIEF FOR RESPONDENT 11 AND N. 2.  BUT
THE DISTRICT COURT DID NOT DISMISS THE PENDENT STATE LAW CLAIM;
RESPONDENT DELIBERATELY DROPPED IT FROM HIS AMENDED COMPLAINT. 
THEREFORE, WHATEVER THE MERITS OF THE ORDER FOR SECURITY AS APPLIED
ONLY TO THE PENDENT CLAIM, SEE SARGENT V. GENESCO, IN., 337 F. SUPP.
1244 (MD FLA. 1972), CF. COHEN V. BENEFICIAL LOAN CORP., 337 337 U.S.
541 (1949), RESPONDENT HAS FORECLOSED HIMSELF FROM CONSIDERATION OF A
STATE CLAIM NOT NOW RAISED BY HIS OPERATIVE PLEADING.  WHEELDIN V.
WHELLER, 373 U.S. 647, 652 (1963).  WE DO NOT THINK THAT THE PENDENT
STATE LAW CLAIM WAS PRESERVED IN THESE CIRCUMSTANCES BY THE VERBATIM
REPETION IN THE AMENDED COMPLAINT OF A GENERAL ALLEGATION FROM THE
ORIGINAL COMPLAINT THAT PETITIONERS' CONDUCT WAS "IN VIOLATION OF STATE
AND FEDERAL LAW." 

THEREFORE, THERE IS NOT PROPERLY BEFORE US RESPONDENT'S ARGUMENT
THAT THE ACTS OF A DELAWARE CORPORATION VIOLATIVE OF UNITED STATES
CRIMINAL STATUTES ARE ULTRA VIRES ACTS UNDER DELAWARE CORPORATION LAW,
DEL. CODE ANN., TIT. 8, SEC. 101; 6 W. FLETCHER, CYCLOPEDIA
CORPORATIONS 335 (1968 ED.), AND THAT HIS ULTRA VIRES CAUSE OF ACTION
THEREFORE "ARISES UNDER" FEDERAL LAW, THAT IS, SEC. 610, WITHIN THE
MEANING OF 28 U.S.C. SEC. 1331.  HE RELIES UPON SMITH V. KANSAS CITY
TITLE CO., 255 U.S. 180 (1921); SEE ALSO WHEELDIN V. WHEELER, SUPRA, AT
659 - 660 (BRENNAN, J., DISSENTING).  NOT ONLY WAS COUNT II DROPPED
FROM THE CASE BY RESPONDENT, AND NO ARGUMENT ADDRESSED TO IT MADE BY
HIM IN THE DISTRICT COURT OR THE COURT OF APPEALS, BUT HE NEITHER CROSS
PETITIONED NOR RAISED THE CONTENTION IN HIS OPPOSITION TO THE PETITION
FOR CERTIORARI.  MOREOVER, THIS COURT MUST NECESSARILY DEPEND UPON THE
DISTRICT COURTS AND COURTS OF APPEALS FOR INITIAL DETERMINATIONS OF
QUESTIONS OF STATE LAW; INDEED, OUR PRACTICE OF DEFERENCE TO SUCH
DETERMINATION SHOULD GENERALLY RENDER UNNECESSARY REVIEW OF THEIR
DECISIONS IN THIS RESPECT.  COMMISSIONER V. ESTATE OF BOSCH, 387 U.S.
456, 462 (1967); RAGAN V. MERCHANTS TRANSFER CO., 337 U.S. 530, 534
(1949).  OBVIOUSLY, THEN, WE SHOULD NOT UNDERTAKE TO DECIDE SUCH
QUESTIONS, INHERENT IN RESPONDENT'S THEORY, IN THE FIRST INSTANCE. 

IN SUM, IN THIS CASE "WE SEE NO CAUSE FOR DEVIATING FROM OUR NORMAL
POLICY OF NOT CONSIDERING ISSUES WHICH HAVE NOT BEEN PRESENTED TO THE
COURT OF APPEALS AND WHICH ARE NOT PROPERLY PRESENTED FOR REVIEW
HERE."  NEELY V. BY CONSTR.  CO., 386 U.S. 317, 330 (1967); CF. WIENER
V. UNITED STATES, 357 U.S. 349, 351 N. (1958). 

/7/ FEDERAL ELECTION COMMISSION WAS INCLUDED IN THE SENATE-PASSED BILL
IN 1971, BUT WAS ELIMINATED IN CONFERENCE.  SEE BERRY & GOLDMAN,
CONGRESS AND PUBLIC POLICY:  A STUDY OF THE FEDERAL ELECTION CAMPAIGN
ACT OF 1971, 10 HARV. J. LEGIS.  331, 343, 354 (1973); S.CONF.  REP. 
NO. 92 - 580, PP. 34 - 35 (1971); H.R.CONF.  REP.  NO. 92 - 752, PP. 34
- 35 (1971).  THE COMMISSION IN THE SENATE VERSION WAS GIVEN NO
EXPLICIT AUTHORITY WITH REGARD TO VIOLATIONS OF SEC. 610.  SEE S. 382,
SEC. 308 (B), AS PASSED AUG. 5, 1971 (3 LEG.  HIST.  OF FEDERAL
ELECTION CAMPAIGN ACT OF 1971). 

/8/ OTHER PROVISIONS OF THE AMENDMENTS WHICH MAY HAVE RELEVANCE TO
PRIVATE PARTIES' COMPLAINTS OF VIOLATIONS OF SEC. 610 INCLUDE 2 U.S.
C.A. SEC. 437G (A)(9) (SUPP. FEB. 1975), PROVIDING FOR JUDICIAL REVIEW
AT THE BEHEST OF "(ANY PARTY AGGRIEVED" BY ANY ORDER GRANTED IN A CIVIL
ACTION FILED BY THE ATTORNEY GENERAL, AND 2 U.S.C.A. SEC. 437H (A)
(SUPP. FEB. 1975), PERMITTING "ANY INDIVIDUAL ELIGIBLE TO VOTE IN ANY
ELECTION FOR THE OFFICE OF PRESIDENT OF THE UNITED STATES" TO FILE
"SUCH ACTIONS...AS MAY BE APPROPRIATE TO CONSTRUE THE CONSTITUTIONALITY
OF...(SEC.  610)." 

/9/ THE PARTIES DISAGREE UPON WHETHER THIS REFERENCE TO "PRIMARY
JURISDICTION" SUGGESTS THAT A COMPLAINANT, AFTER FILING A COMPLAINT
WITH THE COMMISSION, MAY FILE A CIVIL SUIT FOR INJUNCTIVE RELIEF IF THE
COMMISSION FAILS TO CAUSE ONE TO BE FILED.  THEY ALSO DISPUTE WHETHER
THE EXHAUSTION REQUIREMENT APPLIES TO A SUIT FOR DAMAGES.  COMPARE 120
CONG. REC. (DAILY ED. OCT. 10, 1974), H10330 (REMARKS OF MR. HAYS)
(SUGGESTING THAT THE STATUTORY REMEDIES ARE EXCLUSIVE) WITH ID., H10328
(REMARKS OF MR. BRADEMAS) ("INDIVIDUALS OR ORGANIZATIONS WHO MAY HAVE
COMPLAINTS ABOUT POSSIBLE VIOLATIONS (MUST) FIRST EXHAUST THEIR
ADMINISTRATIVE REMEDIES WITH THE COMMISSION..."  (EMPHASIS SUPPLIED));
SEE ALSO H.R.CONF.  REP.  NO. 93 - 1438, P. 94 (1974).  HOWEVER, THESE
ISSUES ARE NOT HERE RELEVANT; IT SUFFICES FOR THE PURPOSES OF THIS CASE
TO HOLD THAT THE STATUTE REQUIRES THAT A PRIVATE COMPLAINANT DESIRING
INJUNCTIVE RELIEF AGAINST ALLEGED FUTURE VIOLATIONS OF SEC. 610 MUST AT
LEAST EXHAUST HIS STATUTORY REMEDY UNDER THE AMENDMENTS WHEN AND IF
SUCH VIOLATIONS OCCUR.  WE NOTE THAT THE QUESTION OF THE AVAILABILITY
OF A PRIVATE CAUSE OF ACTION BY RESPONDENT FOR INJUNCTIVE RELIEF MAY
NOT ARISE AT ALL IF THE ATTORNEY GENERAL SEEKS AND OBTAINS INJUNCTIVE
RELIEF FOR ANY CLAIMED VIOLATIONS BY BETHLEHEM.  CF. RICHARDSON V.
WRIGHT, 405 U.S. 208, 209 (1972). 

/10/ ALTHOUGH THE CONSIDERATIONS UPON WHICH WE BASE OUR PRESENT
DECISION HAVE RELEVANCE TO A SIMILAR DETERMINATION UNDER THE
AMENDMENTS, WE IMPLY NO VIEW WHETHER THE SAME RESULT WOULD OBTAIN UNDER
THE AMENDMENTS.  SEE N. 9, SUPRA, AND N. 14, INFRA. 

/11/ IN WYANDOTTE, IT WAS CONCEDED THAT THE UNITED STATES HAD A
CIVIL IN REM ACTION AGAINST THE SHIP OBSTRUCTING NAVIGATION UNDER SEC.
19 OF THE RIVERS AND HARBORS ACT OF 1899, AND COULD RETAIN THE PROCEEDS
OF THE SALE OF THE VESSEL AND ITS CARGO.  389 U.S., AT 200 N. 12.  THE
ONLY QUESTION WAS WHETHER IT ALSO HAD OTHER JUDICIAL REMEDIES FOR
VIOLATION OF SEC. 15 OF THE ACT, ASIDE FROM THE CRIMINAL PENALTIES
PROVIDED IN SEC. 16. 

IN BORAK, SEC. 27 OF THE SECURITIES EXCHANGE ACT OF 1934
SPECIFICALLY GRANTED JURISDICTION TO THE DISTRICT COURTS OVER CIVIL
ACTIONS TO "ENFORECE ANY LIABILITY OR DUTY CREATED BY THIS TITLE OR THE
RULES AND REGULATIONS THERUNDER," AND THERE SEEMED TO BE NO DISPUTE
OVER THE FACT THAT AT LEAST A PRIVATE SUIT FOR DECLARATORY RELIEF WAS
AUTHORIZED; THE QUESTION WAS WHETHER A DERIVATIVE SUIT FOR RECISSION
AND DAMAGES WAS ALSO AVAILABLE.  377 U.S., AT 340 - 431.  FURTHER IT
WAS CLEAR THAT THE SECURITIES AND EXCHANGE COMMISSION COULD SUE TO
ENJOIN VIOLATIONS OF SEC. 14 (A) OF THE ACT, THE SECTION INVOLVED IN
BORAK.  SEE SEC. 21 OF THE ACT, 15 U.S.C. SEC. 78U. 

FINALLY, IN RIGSBY, THE COURT NOTED THAT THE STATUTES INVOLVED
INCLUDED LANGUAGE PERTINENT ONLY TO A PRIVATE RIGHT OF ACTION FOR
DAMAGES, ALTHOUGH SUCH A RIGHT OF ACTION WAS NOT EXPRESSLY PROVIDED,
THUS RENDERING "(THE INFERENCE OF A PRIVATE RIGHT OF ACTION...
IRRESISTIBLE."  241 U.S. 482, 491 (1960). 

/12/ THE ACT PROVIDED: 

" THAT IT SHALL BE UNLAWFUL FOR ANY NATIONAL BANK, OR ANY
CORPORATION ORGANIZED BY AUTHORITY OF ANY LAWS OF CONGRESS, TO MAKE A
MONEY CONTRIBUTION IN CONNECTION WITH ANY ELECTION TO ANY POLITICAL
OFFICE.  IT SHALL ALSO BE UNLAWFUL FOR ANY CORPORATION WHATEVER TO MAKE
A MONEY CONTRIBUTION IN CONNECTION WITH ANY ELECTION WHICH PRESIDENTIAL
AND VICE-PRESIDENTIAL ELECTORS OR A REPRESENTATIVE IN CONGRESS IS TO BE
VOTED FOR OR ANY ELECTION BY ANY STATE LEGISLATURE OF A UNITED STATES
SENATOR...."  34 STAT. 864. 

/13/ SECTION 610 WAS LATER EXPANDED TO INCLUDE LABOR UNIONS WITHIN
ITS PROGIBITION.  THE HISTORY OF THIS EXPANSION HAS BEEN RECOUNTED
BEFORE.  UNITED STATES V. CIO, 335 U.S. 106, 114 - 116 (1948); UNITED
STATES V. UAW, 352 U.S. 567, 578 - 584 (1957); PIPEFITTERS V. UNITED
STATES, 407 U.S. 385, 402 - 409 (1972).  WE NOTE THAT CONGRESS DID SHOW
CONCERN, IN PERMANENTLY EXPANDING SEC. 610 TO UNIONS, FOR PROTECTING
UNION MEMBERS FROM USE OF THEIR FUNDS FOR POLITICAL PURPOSES.  SEE
UNITED STATES V. CIO, SUPRA, AT 135, 142 (RUTLEDGE, J., CONCURRING). 
THIS DIFFERENCE IN EMPHASIS MAY REFLECT A RECOGNITION THAT, WHILE A
STOCKHOLDER ACQUIRES HIS STOCK VOLUNTARILY AND IS FREE TO DISPOSE OF
IT, UNION MEMBERSHIP AND THE PAYMENT OF UNION DUES IS OFTEN INVOLUNTARY
BECAUSE OF UNION SECURITY AND CHECK-OFF PROVISIONS.  CF. MACHINISTS V.
STREET, 367 U.S. 740 (1961).  IT IS THEREFORE ARGUABLE THAT THE FEDERAL
INTEREST IN THE RELATIONSHIP BETWEEN MEMBERS AND THEIR UNIONS IS MUCH
GREATER THAN THE PARALLEL INTEREST IN THE RELATIONSHIP BETWEEN
STOCKHOLDERS AND STATE-CREATED CORPORATIONS.  IN FACT, THE PERMANENT
EXPANSION OF SEC. 610 TO INCLUDE LABOR UNIONS WAS PART OF COMPREHENSIVE
LABOR LEGISLATION, THE TAFT-HARTLEY ACT OF 1947, WHILE THE 1907 ACT
DEALT WITH CORPORATIONS ONLY WITH REGARD TO THEIR IMPACT ON FEDERAL
ELECTIONS.  WE INTIMATE NO VIEW WHETHER OUR CONCLUSION THAT SEC. 610
DID NOT FIVE RISE DIRECTLY TO A CAUSE OF ACTION FOR DAMAGES INFAVOR OF
STOCKHOLDERS IN STATE-CREATED CORPORATIONS NECESSARILY WOULD IMPLY THAT
UNION MEMBERS, DESPITE THE MUCH STRONGER FEDERAL INTEREST IN UNIONS,
ARE ALSO RELEGATED TO STATE REMEDIES. 

/14/ PETITIONERS POINT OUT THAT THE FEDERAL ELECTION CAMPAIGN ACT OF
1971 DID CREATE A PRIVATE COMPLAINT PROCEDURE WITH REGARD TO THE
DISCLOSURE PROVISIONS THERE ENACTED, SEC. 308 (D), 86 STAT. 18, AND
YET, WHILE THE ACT, SEC. 205, DID AMEND SEC. 610, IT DID NOT PROVIDE A
PARALLEL REMEDY FOR PRIVATE PARTIES FOR VIOLATIONS OF SEC. 610. 
RELYING ON AMTRAK, 414 U.S. 453 (1974), AND T.I.M.E., INC. V. UNITED
STATES, 359 U.S. 464 (1959), THEY ASK US TO INFER FROM THE FACT THAT
SOME PRIVATE REMEDY WAS PROVIDED WITH REGARD TO TITLE III OF THE 1971
ACT AN INTENTION TO DENY ANY SUCH REMEDY WITH REGARD TO THE CRIMINAL
STATUTES AMENDED IN TITLE II. 

WE FIND THIS EXCURSION INTO EXTRAPOLATION OF LEGISLATIVE INTENT
ENTIRELY UNILLUMINATING.  IN AMTRAK, THERE WAS A PRIVATE CAUSE OF
ACTION PROVIDED IN FAVOR OF CERTAIN PLAINTIFFS CONCERNING THE
PARTICULAR PROVISION AT ISSUE.  IT WAS IN THIS CONTEXT THAT WE REFERRED
TO "(A) FREQUENTLY STATED PRINCIPLE OF STATUTORY CONSTRUCTION...THAT
WHEN LEGISLATION EXPRESSLY PROVIDES A PARTICULAR REMEDY OR REMEDIES,
COURTS SHOULD NOT EXPAND THE COVERAGE OF THE STATUTE TO SUBUME OTHER
REMEDIES."  414 U.S., AT 458.  IN ADDITION, THERE WAS SPECIFIC SUPPORT
IN THE LEGISLATIVE HISTORY OF THE AMTRAK ACT FOR THE PROPOSITION THAT
THE STATUTORY REMEDIES WERE TO BE EXCLUSIVE.  ID., AT 458 - 461. 

IN T.I.M.E., SUPRA, THE COURT DID RELY IN PART UPON THE FACT THAT A
PARTICULAR REMEDY WAS PROVIDED WITH REGARD TO CERTAIN PARTS OF THE
INTERSTATE COMMERCE ACT TO INFER THAT NONE WAS INTENDED WITH REGARD TO
OTHERS.  BUT AGAIN, THERE WAS SPECIFIC SUPPORT IN THE LEGISLATIVE
HISTORY FOR THIS INFERENCE.  359 U.S., AT 471 - 472, 477, AND N. 18. 

HERE, THERE WAS, AS FAR AS THE PARTIES HAVE BEEN ABLE TO POINT OUT
AND AS FAR AS WE HAVE BEEN ABLE INDEPENDENTLY TO DETERMINE, NO
DISCUSSION WHATEVER IN CONGRESS CONCERNING PRIVATE ENFORCEMENT OF SEC.
610.  FURTHER, WHILE SEC. 610 WAS AMENDED IN WAYS NOT PERTINENT HERE IN
1971, IT WAS, AS WE HAVE SEEN, OF MUCH EARLIER ORIGIN, AND IT WOULD BE
ODD TO INFER FROM CONGRESS' ACTIONS CONCERNING THE NEWLY CREATED
PROVISIONS OF TITLE III ANY INTENTION REGARDING THE ENFORCEMENT OF A
LONG-EXISTING STAUTE. 

PETITIONERS ALSO SUGGEST THAT THE LEGISLATIVE HISTORY OF THE FEDERAL
ELECTION CAMPAIGN ACT AMENDMENTS OF 1974 THROW A "CROSS-LIGHT,"
PIPEFITTERS V. UNITED STATES, 407 U.S., AT 427, UPON CONGRESS'
UNDERSTANDING CONCERNING PRIVATE ENFORCEMENT OF SEC. 610.  ANY SUCH
LIGHT CAST IS, IN OUR VIEW EXCEEDINGLY DIM AND OF LITTLE HEIP HERE. 

EDWIN P. ROME ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE JEROME R. RICHTER, RICHARD P. MC ELROY, WILLIAM H. ROBERTS,
AND CURTIS H. BARNETTE. 

DAVID BERGER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WERE CLETUS P. LYMAN AND PAUL J. MC MAHON. 

(SOLICITOR GENERAL BORK, ACTING ASSISTANT ATTORNEY GENERAL KEENEY,
AND JEROME M. FEIT FILED A BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE. 

JAMES F. RILL, THOMAS F. SHANNON, JOHN HARDIN YOUNG, MILTON A.
SMITH, AND LAWRENCE B. KRAUS FILED A BRIEF FOR THE CHAMBER OF COMMERCE
OF THE UNITED STATES AS AMICUS CURIAE URGING REVERSAL. 

ALAN B. MORRISON AND REUBEN B. ROBERTSON III FILED A BRIEF FOR
JUDITH BONDERMAN ET AL. AS AMICI CURIAE URGING AFFIRMANCE.) 
..END :























UNITED STATES V. CITIZENS AND SOUTHERN NATIONAL BANK, 422 US 86 


       UNITED STATES V. CITIZENS & SOUTHERN NATIONAL BANK ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA

  NO. 73 - 1933.  ARGUED MARCH 19, 1975--DECIDED JUNE 17,

           1975; 372 F.SUPP.  616, AFFIRMED. 


TO CIRCUMVENT GEORGIA'S LONGSTANDING STRINGENT RESTRICTIONS ON CITY
BANKS' OPENING BRANCHES IN SUBURBAN AREAS, APPELLEE CITIZENS & SOUTHERN
NATIONAL BANK (C& S NATIONAL) FORMED A HOLDING COMPANY, WHICH THEN
EMBARKED ON A PROGRAM OF FORMING DE FACTO BRANCH BANKS IN ATLANTA'S
SUBURBS.  THIS PROGRAM INCLUDED THE HOLDING COMPANY'S OWNERSHIP OF 5
PERCENT OF THE STOCK OF EACH OF THE SUBURBAN BANKS, OWNERSHIP OF MUCH
OF THE REMAINING STOCK BY PARTIES FRIENDLY TO THE C& S SYSTEM OF
BANKING ENTITIES (HEREAFTER C& S), THE SUBURBAN BANKS' USE OF THE C& S
LOGOGRAM AND OF ALL C& S'S BANKING SERVICES, AND CLOSE C& S OVERSIGHT
OF THE SUBURBAN BANKS' OPERATION AND GOVERNANCE.  IN 1970, GEORGIA
AMENDED ITS BANKING STATUTES SO AS TO ALLOW DE JURE BRANCHING UPON A
COUNTYWIDE BASIS.  THIS MEANT THAT C& S COULD NOW ABSORB THE 5-PERCENT
BANKS AS TRUE BRANCHES, BECAUSE ATLANTA IS CONTAINED WITHIN THE TWO
COUNTIES ENCOMPASSING THE SUBURBS IN WHICH THE 5-PERCENT BANKS
OPERATED.  CONSEQUENTLY C& S APPLIED TO THE FEDERAL DEPOSIT INSURANCE
CORPORATION (FDIC) UNDER THE BANK MERGER ACT OF 1966 FOR PERMISSION TO
ACQUIRE ALL THE STOCK OF SIX OF THE 5-PERCENT BANKS HISTORICALLY
OPERATED AS DE FACTO BRANCHES OR "CORRESPONDENT ASSOCIATE" BANKS WITHIN
THE C& S SYSTEM.  THE FDIC AUTHORIZED FIVE OF THE PROPOSED
ACQUISITIONS.  THE GOVERNMENT THEN BROUGHT SUIT IN DISTRICT COURT FOR
INJUNCTIVE RELIEF, ALLEGING THAT THE FIVE ACQUISITIONS WOULD LESSEN
COMPETITION IN RELEVANT BANKING MARKETS IN VIOLATION OF SEC. 7 OF THE
CLAYTON ACT, AND THAT THE HISTORIC, DE FACTO BRANCH RELATIONS BETWEEN
C& S AND THE SIX 5-PERCENT BANKS CONSTITUTED UNREASONABLE RESTRAINTS OF
TRADE IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  THE COURT RENDERED
JUDGMENT FOR C& S. THREE OF THE 5-PERCENT BANKS WERE FORMED PRIOR TO,
AND THREE AFTER, JULY 1, 1966.  THE "GRANDFATHER" PROVISION OF THE BANK
HOLDING COMPANY ACT, 12 U.S.C. SEC. 1849 (D), AS ADDED BY THE 1966
AMENDMENTS, PROVIDES THAT "(ANY ACQUISITION, MERGER, OR CONSOLIDATION
OF THE KIND DESCRIBED IN (12 U.S.C. SEC.) 1842 (A)...WHICH WAS
CONSUMMATED AT ANY TIME PRIOR OR SUBSEQUENT TO MAY 9, 1956, AND AS TO
WHICH NO LITIGATION WAS INITIATED BY THE ATTORNEY GENERAL PRIOR TO JULY
1, 1966, SHALL BE CONCLUSIVELY PRESUMED NOT TO HAVE BEEN IN VIOLATION
OF ANY ANTITRUST LAWS OTHER THAN" SEC. 2 OF THE SHERMAN ACT.  TITLE 12
U.S.C. SEC. 1842 (A) MAKES IT UNLAWFUL, ABSENT THE FEDERAL RESERVE
BOARD'S PRIOR APPROVAL, FOR BANK HOLDING COMPANIES TO ENGAGE IN CERTAIN
TRANSACTIONS, INCLUDING THOSE TENDING TO CREATE OR ENLARGE HOLDING
COMPANY CONTROL OF INDEPENDENT BANKS.  HELD: 

1.  SINCE THE ATTORNEY GENERAL TOOK NO ACTION BY JULY 1966 AGAINST
THE THREE 5-PERCENT BANKS THAT WERE FORMED PRIOR TO THAT DATE, THE
TRANSACTIONS BY WHICH THESE BANKS BECAME 5-PERCENT BANKS FALL WITHIN
THE TERMS OF THE GRANDFATHER PROVISION OF THE BANK HOLDING COMPANY ACT,
AND THEREFORE THE CORRESPONDENT ASSOCIATE PROGRAMS IN FORCE AT THESE
BANKS ARE IMMUNE FROM ATTACK UNDER SEC. 1 OF THE SHERMAN ACT.  WHILE C&
S'S FORMATION OF A DE FACTO BRANCH WAS A UNIQUE TYPE OF TRANSACTION, IT
MAY FAIRLY BE CHARACTERIZED AS AN "ACQUISITION, MERGER, OR
CONSOLIDATION OF THE KIND DESCRIBED IN (12 U.S.C. SEC.) 1842 (A)," AND
CLEARLY FALLS WITHIN THE CLASS OF DEALINGS BY BANK HOLDING COMPANIES
THAT CONGRESS INTENDED, IN THE GRANDFATHER PROVISION, TO SHIELD FROM
RETROACTIVE CHALLENGE UNDER THE ANTITRUST LAWS.  PP.  102 - 111. 

2.  IN THE FACE OF THE STRINGENT STATE RESTRICTIONS ON BRANCHING, C&
S' PROGRAM OF FOUNDING NEW DE FACTO BRANCHES, AND MAINTAINING THEM AS
SUCH, DID NOT INFRINGE SEC. 1 OF THE SHERMAN ACT.  PP. 111 - 120. 

(A) THOUGH THE GOVERNMENT CONTENDS THAT THE CORRESPONDENT ASSOCIATE
PROGRAMS ENCOMPASSED AT LEAST A TACIT AGREEMENT TO FIX INTEREST RATES
AND SERVICE CHARGES SO AS TO MAKE THE INTERRELATIONSHIPS--TO THAT
EXTENT AT LEAST--ILLEGAL PER SE, IT CANNOT BE HELD, IN VIEW OF THE
MIXED EVIDENCE IN THE RECORD, AND OF THE FACT THAT SUCH PROGRAMS, AS
SUCH, WERE PERMISSIBLE UNDER THE SHERMAN ACT, THAT THE DISTRICT COURT
CLEARLY ERRED IN FINDING THAT THE LACK OF SIGNIFICANT PRICE COMPETITION
FLOWED, NOT FROM A TACIT AGREEMENT, BUT AS AN INDIRECT, UNINTENTIONAL,
AND FORMALLY DISCOURAGED RESULT OF THE SHARING OF EXPERTISE AND
INFORMATION THAT WAS AT THE HEART OF THE CORRESPONDENT ASSOCIATE
PROGRAM.  PP. 112 - 114. 

(B) THE GOVERNMENT'S ALTERNATIVE CONTENTION THAT THE CORRESPONDENT
ASSOCIATE PROGRAMS TRANSCENDING CONVENTIONAL "CORRESPONDENT"
RELATIONSHIPS "UNREASONABLY" RESTRAINED COMPETITION AMONG THE 5-PERCENT
BANKS AND BETWEEN THESE BANKS AND C& S NATIONAL, IS NOT PERSUASIVE,
SINCE EVEN IF THE GOVERNMENT HAD PROVED THAT SUCH PROGRAMS RESTRAINED
COMPETITION AMONG THE DEFENDANT BANKS MORE THOROUGHLY OR EFFECTIVELY
THAN WOULD HAVE A CONVENTIONAL CORRESPONDENT PROGRAM (WHICH THE
DISTRICT COURT FOUND NOT TO BE THE CASE), THAT ALONE WOULD NOT MAKE OUT
A SHERMAN ACT VIOLATION.  PP. 114 - 116. 

(C) WHERE C& S HAS OPERATED THE 5-PERCENT BANKS AS DE FACTO BRANCHES
IN DIRECT RESPONSE TO GEORGIA'S HISTORIC RESTRICTIONS ON DE JURE
BRANCHING, RESTRAINTS OF TRADE INTEGRAL TO THIS PARTICULAR, UNUSUAL
FUNCTION ARE NOT UNREASONABLE.  TO CHARACTERIZE THE RELATIONSHIPS AT
ISSUE AS AN UNREASONABLE RESTRAINT OF TRADE IS TO FORGET THAT THEIR
WHOLE PURPOSE AND EFFECT WERE TO DEFEAT A RESTRAINT OF TRADE, AND BY
PROVIDING NEW BANKING OPTIONS TO SUBURBAN ATLANTA CUSTOMERS, WHILE
ELIMINATING NO EXISTING OPTIONS, C& S'S DE FACTO BRANCHING PROGRAM HAS
PLAINLY BEEN PROCOMPETITIVE.  PP. 116 - 120. 

3.  THE PROPOSED ACQUISITIONS WILL NOT VIOLATE SEC. 7 OF THE CLAYTON
ACT.  PP. 120 - 122. 

(A) SINCE C& S' PROGRAM OF FOUNDING AND MAINTAING NEW DE FACTO
BRANCHES IN THE FACE OF GEORGIA'S ANTIBRANCHING LAW DID NOT VIOLATE THE
SHERMAN ACT, AND SINCE THE DE FACTO BRANCHES THAT C& S SPONSORSHIP, IT
FOLLOWS THAT THE PROPOSED ACQUISITIONS WILL EXTINGUISH NO PRESENT
COMPETITIVE CONDUCT OR RELATIONSHIPS.  P. 121. 

(B) AS FOR FUTURE COMPETITION, THERE IS NO EVIDENCE OF ANY REALISTIC
PROSPECT THAT DENIAL OF THE ACQUISITIONS WOULD LEAD THE DEFENDANT BANKS
TO COMPETE AGAINST EACH OTHER, THE CLAYTON ACT BEING CONCERNED WITH
"PROBABLE" EFFECTS ON COMPETITION, NOT WITH "EPHEMERAL POSSIBILITIES." 
PP. 121 - 122. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND MARSHALL, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND WHITE,
JJ., JOINED, POST, P. 130. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

FOR MANY YEARS THE STATE OF GEORGIA RESTRICTED BANKS LOCATED IN
CITIES FROM OPENING BRANCHES IN SUBURBAN AREAS.  TO CIRCUMVENT THESE
RESTRICTIONS IN THE ATLANTA AREA, THE CITIZENS & SOUTHERN NATIONAL BANK
(C& S NATIONAL) FORMED THE CITIZENS & SOUTHERN HOLDING COMPANY (C& S
HOLDING), AND THE LATTER COMPANY EMBARKED ON A PROGRAM OF FORMING DE
FACTO BRANCH BANKS IN THE SUBURBS OF ATLANTA.  THIS PROGRAM INVOLVED,
AMONG OTHER FEATURES, OWNERSHIP BY C& S HOLDING OF 5 PERCENT OF THE
STOCK OF EACH OF THE SUBURBAN BANKS (THE MAXIMUM ALLOWED BY STATE LAW),
OWNERSHIP OF MUCH OF THE REMAINING STOCK BY PARTIES FRIENDLY TO C& S
/1/ USE BY THE SUBURBAN BANKS OF THE C& S LOGOGRAM AND OF ALL OF C& S'S
BANKING SERVICES, AND CLOSE C& S OVERSIGHT OF THE OPERATION AND
GOVERNANCE OF THE SUBURBAN BANKS.  THE EXPECTATION ON ALL SIDES--BY C&
S, BY THE SUBURBAN BANKS, AND BY STATE AND FEDERAL BANK REGULATORS--WAS
THAT C& S WOULD ACQUIRE THESE "5-PERCENT BANKS" OUTRIGHT, AND CONVERT
THEM INTO DE JURE BRANCHES, AS SOON AS STATE LAW, OR THE ATLANTA CITY
LIMITS, WERE ALTERED SO AS TO PERMIT THE ACCOMPLISHMENT OF THIS END. 

IN 1970, GEORGIA AMENDED ITS BANKING STATUTES TO ALLOW DE JURE
BRANCHING ON A COUNTYWIDE BASIS.  BECAUSE THE CITY OF ATLANTA IS
CONTAINED WITHIN TWO COUNTIES, DE KALB AND FULTON, WHICH ENCOMPASS THE
ATLANTA SUBURBS IN WHICH THE 5-PERCENT BANKS OPERATED, THIS CHANGE IN
THE LAW MEANT THAT C& S NATIONAL COULD NOW ABSORB THE 5-PERCENT BANKS
AS TRUE BRANCHES.  C& S CONSEQUENTLY APPLIED TO THE FEDERAL DEPOSIT
INSURANCE CORPORATION (FDIC), UNDER THE BANK MERGER ACT OF 1966, 80
STAT. 7, 12 U.S.C. SEC. 1828, FOR PERMISSION TO ACQUIRE ALL OF THE
STOCK OF SIX OF THE 5-PERCENT BANKS HISTORICALLY OPERATED BY C& S AS DE
FACTO BRANCHES.  THE FDIC AUTHORIZED ALL BUT ONE OF THE PROPOSED
ACQUISITIONS. 

THE JUSTICE DEPARTMENT IMMEDIATELY COMMENCED THIS LITIGATION IN A
FEDERAL DISTRICT COURT FOR INJUNCTIVE RELIEF, ALLEGING THAT THE FIVE
ACQUISITIONS AUTHORIZED BY THE FDIC WOULD LESSEN COMPETITION IN
RELEVANT BANKIN MARKETS, AND THUS VIOLATE SEC. 7 OF THE CLAYTON ACT, 38
STAT. 731, AS AMENDED, 15 U.S.C. SEC. 18, AND THAT THE HISTORIC "DE
FACTO BRANCH" RELATIONS BETWEEN C& S AND THE SIX 5-PERCENT BANKS
CONSTITUTED UNREASONABLE RESTRAINTS OF TRADE IN VIOLATION OF SEC. 1 OF
THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. SEC. 1.  AFTER A
TRIAL, THE COURT RENDERED JUDGMENT FOR C& S ON ALL THE ISSUES.  372
F.SUPP.  616.  THE GOVERNMENT APPEALED UNDER SEC. 2 OF THE EXPEDITING
ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29, AND WE NOTED PROBABLE
JURISDICTION.  /2/

        I. THE BACKGROUND OF THIS LITIGATION 

IN APPLYING THE ANTITRUST LAWS TO BANKING, CAREFUL ACCOUNT MUST BE
TAKEN OF THE PERVASIVE FEDERAL AND STATE REGULATION CHARACTERISTIC OF
THE INDUSTRY, "PARTICULARLY THE LEGAL RESTRAINTS ON ENTRY UNIQUE TO
THIS LINE OF COMMERCE."  UNITED STATES V. MARINE BANCORPORATION, 418
U.S. 602, 606.  THIS ADMONITION HAS SPECIAL FORCE IN THE PRESENT CASE,
FOR THE DE FACTO BRANCH ARRANGEMENTS AND THE PROPOSED ACQUISITIONS
INVOLVED HERE WERE A DIRECT RESPONSE TO GEORGIA'S HISTORIC RESTRICTIONS
ON BRANCH BANKING. 

BEFORE 1927 GEORGIA PERMITTED STATEWIDE BRANCHING, AND C& S NATIONAL
THEN AS NOW HEADQUARTERED IN SAVANNAH, ESTABLISHED THREE BRANCHES IN
THE CITY OF ATLANTA.  IN 1927, STATE LAW WAS CHANGED TO PROHIBIT ALL
BRANCHING.  /3/ C& S THEREFORE DECIDED TO EXPAND THROUGH THE FORMATION
OF A BANK HOLDING COMPANY.  C& S HOLDING WAS FOUNDED IN 192,, AND
BETWEEN 1946 AND 1954 THIS COMPANY PURCHASED TWO BANKS, AND FOUNDED A
THIRD, IN THE ATLANTA AREA.  BUT IN 1956 GEORGIA AGAIN ALTERED ITS
STATUTES TO PROHIBIT A BANK HOLDING COMPANY FROM ACQUIRING MORE THAN 15
PERCENT OF A BANK'S STOCK.  GEORGIA BANK HOLDING COMPANY ACT, 1 GA.
LAWS 1956, PP. 309 - 312.  A 1960 AMENDMENT, STILL IN FORCE, REDUCED
THE MAXIMUM OWNERSHIP LEVEL TO 5 PERCENT.  GA. CODE ANN. 13 - 207
(A)(2) (1967 ED. AND SUPP. 1974). 

BY THE 1950'S, C& S NATIONAL WAS INTERESTED PRIMARILY IN SUBURBAN
EXPANSION.  THE ATLANTA CITY LIMITS HAD BEEN FROZEN SINCE 1952, AND THE
AREA'S ECONOMIC AND POPULATION GROWTH CONSEQUENTLY OCCURRED PRIMARILY
OUTSIDE THE CITY'S BOUNDARIES.  BETWEEN 1959 AND 1969, C& S HOLDING
ACCORDINGLY ESTABLISHED IN THE ATLANTA SUBURBS (IN DE KALB AND FULTON
COUNTIES) THE SIX 5-PERCENT BANKS AT ISSUE IN THIS CASE.  FIVE OF THESE
BANKS WERE FOUNDED UNDER THE SPONSORSHIP OF C& S; THE SIXTH, THE TUCKER
BANK, HAD LONG BEEN AN INDEPENDENT SUBURBAN BANK WHEN, IN 1965, C& S
CONVERTED IT INTO A 5-PERCENT BANK.  /4/ 

EACH OF THESE SIX BANKS WAS MADE A "CORRESPONDENT ASSOCIATE" BANK
WITHIN THE C& S SYSTEM.  THIS STATUS INVOLVED MANY DIFFERENT
RELATIONSHIPS BETWEEN THE 5-PERCENT BANK AND C& S:  IN ADDITION TO THE
5-PERCENT STOCK HELD BY C& S HOLDING, SUBSTANTIAL SHARES WERE ALSO HELD
BY OFFICERS, SHAREHOLDERS, AND FRIENDLY CUSTOMERS OF OTHER C& S BANKS,
AND BY THEIR FAMILY MEMBERS.  IT WAS UNDERSTOOD FROM THE OUTSET THAT
THE 5-PERCENT BANKS WOULD BE ACQUIRED OUTRIGHT BY C& S AS SOON AS THE
LAW PERMITTED.  FROM AT LEAST 1965 ON, THE 5-PERCENT BANKS USED THE C&
S LOGOGRAM ON THEIR BUILDINGS, PAPERS, AND CORRESPONDENCE.  C& S FILED
THE CHARTER APPLICATIONS OF THE 5-PERCENT BANKS AND OPENLY ASSURED THE
BANKS OF FULL FINANCIAL SUPPORT, ASSURANCES WHICH WERE OFTEN
INSTRUMETAL IN SECURING REGULATORY APPROVAL OF THEIR CREATION.  C& S
CHOSE THE PRINCIPAL EXECUTIVE OFFICER FOR EACH 5-PERCENT BANK.  THE
EMPLOYEES OF THESE BANKS WERE ACCORDED THE SAME PENSION AND PROMOTION
RIGHTS IN THE C& S NATIONAL AND ITS DE JURE AFFILIATES.  C& S SELECTED
THE LOCATION OF, AND OVERSAW THE SELECTION OF DIRECTORS FOR, THE
SUBURBAN BANKS.  A C& S EXECUTIVE SERVED AS AN "ADVISORY DIRECTOR"  TO
EACH SUBURBAN BANK.  C& S CONDUCTED SURPRISE AUDITS AND CREDIT CHECKS
AT THE SUBURBAN BANKS.  ACH OF THE SUBURBAN BANKS PROVIDED THE FULL
PANOPLY OF C& S BANKING SERVICES, AND CUSTOMERS OF ANY 5-PERCENT BANK
COULD AVAIL THEMSELVES OF THESE SERVICES AT ANY OF THE OTHER 5-PERCENT
BANKS, OR AT C& S NATIONAL AND ITS DE JURE BRANCHES.  C& S SUPPLIED TO
EACH 5-PERCENT BANK, THROUGH MANUALS AND MEMORANDA, A LARGE QUANTITY OF
INFORMATION CONCERNING EVERY CONCEIVABLE BANKING PROCEDURE AND
PROBLEM.  INCLUDED WERE DATA--STAMPED "FOR INFORMATION ONLY"--
CONCERNING INTEREST RATES AND SERVICE CHARGES EMPLOYED BY C& S NATIONAL
AND ITS DE JURE BRANCHES, BUT EACH 5-PERCENT BANK WAS CAUTIONED TO USE
ITS OWN JUDGMENT IN SETTING INTEREST RATES AND SERVICE CHARGES.  IN
SUM, IT IS FAIR TO SAY--AND THE PARTIES AGREE--THAT IN ALMOST EVERY
RESPECT SAVE CORPORATE FORM, EACH OF THE 5-PERCENT BANKS WAS A DE FACTO
BRANCH OF C& S NATIONAL. 

BETWEEN 1966 AND 1968, THE FEDERAL RESERVE BOARD INVESTIGATED C& S'S
NETWORK OF CORRESPONDENT ASSOCIATE BANKS.  THE PURPOSE OF THE
INVESTIGATION WAS TO DETERMINE WHETHER C& S WAS EXERTING SUCH CONTROL
OVER THE 5-PERCENT BANKS AS TO REQUIRE SPECIAL "APPROVAL" OF THE
FEDERAL RESERVE BOARD PURSUANT TO SEC. 3 OF THE BANK HOLDING COMPANY
ACT OF 1956, AS AMENDED.  12 U.S.C. SEC. 1842.  THE INVESTIGATION ENDED
IN AN "UNDERSTANDING" BETWEEN THE BOARD'S STAFF AND C& S THAT THE
"CORRESPONDENT ASSOCIATE" PROGRAM, AS THE STAFF UNDERSTOOD IT, DID NOT
REQUIRE FORMAL APPROVAL.  /5/ THE JUSTICE DEPARTMENT PARTICIPATED IN
THIS INVESTIGATION, AND TOOK NO ACTION OF ANY KIND INCONSISTENT WITH
THIS "UNDERSTANDING." 

IN 1970 GEORGIA AMENDED ITS BANKING STATUTES TO PERMIT DE JURE
BRANCHING WITHIN ANY COUNTY IN WHICH A BANK ALREADY HAD AN OFFICE.  GA.
CODE ANN. 13 - 203.1 (A) (SUPP. 1974).  THIS ALLOWED C& S NATIONAL TO
BRANCH INTO THOSE ATLANTA SUBURBS WHICH--LIKE THE CITY OF ATLANTA--
ARE WITHIN THE CONFINES OF DEKALB AND FULTON COUNTIES.  C& S DECIDED TO
CONVERT THE SIX 5-PERCENT BANKS AT ISSUE HERE INTO DE JURE BRANCHES. 
C& S APPLIED TO THE FDIC FOR PERMISSION TO ACQUIRE ALL OF THE ASSETS,
AND TO ASSUME OF ALL OF THE LIABILITIES, OF THE 5-PERCENT BANKS.  /6/
ON OCTOBER 4, 1971, AFTER REVIEWING REPORTS ON THE PROPOSED
ACQUISITIONS FROM THE FEDERAL RESERVE BOARD, THE COMPTROLLER OF THE
CURRENCY, AND THE JUSTICE DEPARTMENT, THE FDIC APPROVED C& S'S
ACQUISITION OF THE FIVE SUBURBAN BANKS WHICH C& S HAD HELPED TO FOUND,
BUT DISAPPROVED ACQUISITION OF THE TUCKER BANK.  BECAUSE THE TUCKER
BANK HAD ENJOYED AN INDEPENDENT EXISTENCE BEFORE BEING CONVERTED INTO A
5-PERCENT BANK, THE FDIC CONCLUDED THAT THE CORRESPONDENT ASSOCIATE
AFFILIATION THERE HAD BEEN "ANTICOMPETITIVE IN ITS ORIGINS" AND SHOULD
NOT BE "RATIFIED" BY APPROVAL OF OUTRIGHT ACQUISITION.  /7/ AS FOR THE
FIVE BANKS WHICH C& S HAD HELPED TO FOUND, HOWEVER, THE FDIC STATED: 

"(THE OPENING OF THESE...DE NOVO BANKS SERVED THE CONVENIENCE AND
NEEDS OF THEIR RESPECTIVE COMMUNITIES AND ENHANCED COMPETITION...." 

THE FDIC NOTED THAT THE C& S SYSTEM WAS THE LARGEST COMMERCIAL
BANKING INSTITUTION IN FULTON COUNTY AND IN DE KALB COUNTY.  /8/ FOR
THIS REASON, IT OBSERVED, "NEW ACQUISITIONS OF NONAFFILIATED BANKS IN
THE SAME MARKET (BY C& S) WOULD RAISE THE MOST SERIOUS COMPETITIVE
PROBLEMS UNDER THE BANK MERGER ACT AS AMENDED AND UNDER SECTION 7 OF
THE CLAYTON ACT."  BUT THE FDIC REASONED THAT THE ACQUISITIONS PROPOSED
BY C& S DID NOT RAISE SUCH PROBLEMS BECAUSE THE BANKS INVOLVED IN THE
PROPOSED MERGERS "DO NOT COMPETE TODAY AND NEVER HAVE COMPETED";
FURTHER, THERE EXISTED "NO REASONABLE PROBABILITY" THAT ANY OF THE 5
PERCENT BANKS WOULD BREAK THEIR TIES WITH THE C& S SYSTEM EVEN IF THE
PROPOSED ACQUISITIONS WERE DISAPPROVED.  THUS, "(SUCH MERGERS WOULD NOT
ALTER THE EXISTING COMPETITIVE STRUCTURE...IN ANY WAY OR ADD TO THE
CONCENTRATION OF BANKING RESOURCES NOW HELD BY THE C& S SYSTEM." 

II.  THE SUIT IN THE DISTRICT COURT 

ON NOVEMBER 2, 1971, WITHIN THE 30-DAY PERIOD PRESCRIBED FOR SUCH
SUITS, 12 U.S.C. SEC. 1828 (C)(6) AND (7), THE UNITED STATES FILED A
COMPLAINT INTHE DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA,
ALLEGING THAT THE FIVE ACQUISITIONS APPROVED BY THE FDIC WOULD VIOLATE
SEC. 7 OF THE CLAYTON ACT AND THAT THE ONGOING CORRESPONDENT ASSOCIATE
RELATIONSHIPS BETWEEN C& S AND THE SIX 5-PERCENT BANKS WHICH IT HAD
ORIGINALLY SOUGHT TO ACQUIRE CONSTITUTED UNREASONABLE RESTRANINTS OF
TRADE, IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  THE GOVERNMENT
SOUGHT INJUNCTIVE RELIEF PROHIBITING THE PROPOSED ACQUISITIONS AND
TERMINATING THE ALLEGED VIOLATIONS OF THE SHERMAN ACT.  ON JANUARY 24,
1974, AFTER AN EXTENSIVE TRIAL, THE DISTRICT COURT ENTERED A JUDGMENT
FOR THE DEFENDANTS.  372 F.SUPP.  616, 643. 

AS TO THE SHERMAN ACT ALLEGATIONS, THE DISTRICT COURT BASED ITS
JUDGMENT UPON TWO SEPARATE AND INDEPENDENT GROUNDS.  FIRST, IT HELD
THAT THE 1968 "UNDERSTANDING" BETWEEN THE STAFF OF THE FEDERAL RESERVE
BOARD AND C& S INSULATED THE CORRESPONDENT ASSOCIATE RELATIONSHIP
BETWEEN C& S AND THE 5-PERCENT BANKS FROM ATTACK UNDER THE ANTITRUST
LAWS.  ID., AT 627.  THE COURT BASED THIS CONCLUSION ON THE FOLLOWING
STATEMENT IN WHITNEY BANK V. NEW ORLEANS BANK, 379 U.S. 411, 419: 

     "WE BELIEVE CONGRESS INTENDED THE STATUTORY PROCEEDINGS BEFORE

  THE (FEDERAL RESERVE) BOARD TO BE THE SOLE MEANS BY WHICH

  QUESTIONS AS TO THE ORGANIZATION OR OPERATION OF A NEW BANK BY A

  BANK HOLDING COMPANY MAY BE TESTED." 

ALTERNATIVELY, ASSUMING THE SHERMAN ACT APPLIED, THE DISTRICT COURT
FOUND THAT THE UNITED STATES HAD FAILED TO PROVE THAT THE CORRESPONDENT
ASSOCIATE RELATIONSHIPS INVOLVED "COLLUSIVE PRICE FIXING" OR "ANY
AGREEMENTS NOT TO COMPETE OR FOR MARKET DIVISION.  /9/ THE COURT HELD
"THAT THE MATTERS COMPLAINED OF ARE SUBJECT TO THE 'RULE OF REASON,'
(AND).  . . THE GOVERNMENT HAS NOT SUSTAINED ITS BURDEN OF PROOF AS TO
THE UNREASONABLENESS OF THE PRACTICES INVOLVED OR WITH RESPECT TO ANY
ADVERSE IMPACT UPON COMPETITION."  372 F.SUPP., AT 627 - 628. 

THE GOVERNMENT HAD CONCEDED THAT IT WAS NO VIOLATION OF THE SHERMAN
ACT FOR A LARGE CITY BANK TO ARRANGE A TRADITIONAL "CORRESPONDENT"
RELATIONSHIP WITH A SMALLER, OUTLYING BANK--A "MUTUALLY BENEFICIAL
ARRANGEMENT WHEREBY THE SMALLER BANK RECEIVES NEEDED SERVICES AND THE
LARGER BANK OBTAINS BOTH THE BENEFIT OF THE CORRESPONDENT BANK BALANCE
KEPT WITH IT AND THE INCOME FROM THE SALE OF ITS SERVICES TO THE
SMALLER BANK'S CUSTOMERS.'"  ID., AT 628.  NOTING THIS CONCESSION, THE
DISTRICT COURT OBSERVED: 

"(SUCH ASSISTANCE TO, OR SPONSORSHIP OF, A SMALLER BANK, IS
DESIRABLE AND NECESSARY AND NOT ANTICOMPETITIVE.  THE DIFFERENCE
BETWEEN A PURE CORRESPONDENT RELATIONSHIP AND A CORRESPONDENT ASSOCIATE
RELATIONSHIP AS SET FORTH IN THE EVIDENCE IS MERELY ONE OF DEGREE, A
FINE LINE OF DEMARCATION ALMOST IMPOSSIBLE FOR THE COURT TO
PERCEIVE.... 

     "...(THE COURT FINDS AS A FACT THAT THE RELATIONSHIP BETWEEN
C&

  S NATIONAL, C& S HOLDING, AND THE FIVE PERCENT DEFENDANT BANKS,

  AND THE INTERCHANGE OF INFORMATION BETWEEN THEM, HAVE BEEN

  REASONABLE UNDER THE CIRCUMSTANCES AND NOT IN VIOLATION OF

  SECTION 1 OF THE SHERMAN ACT."  IBID. 

TURNING TO THE CLAIM UNDER SEC. 7 OF THE CLAYTON ACT, THE COURT
FOUND THAT THE VARIOUS DEFENDANT BANKS WERE EACH "ENGAGED IN COMMERCE"
AND THAT THE RELEVANT "LINE OF COMMERCE" WAS "COMMERCIAL BANKING."  THE
COURT DECLINED, HOWEVER, TO DEFINE THE APPROPRIATE GEOGRAPHIC MARKETS,
STATING THAT ITS "DISPOSITION OF THE CASE IS BASED UPON FACTORS WHICH
MAKE A PRECISE DELINEATION OF THE MARKET AREA UNNECESSARY."  372
F.SUPP., AT 629.  SIMPLY ASSUMING THE CORRECTNESS OF THE GOVERNMENT'S
POSITION THAT THE APPROPRIATE MARKETS WERE DE KALB COUNTY, FULTON
COUNTY, NORTH FULTON COUNTY, OR THE ATLANTA AREA GENERALLY, THE COURT
MADE DETAILED FINDINGS AS TO THE EFFECT OF THE PROPOSED ACQUISITIONS ON
C& S'S NOMINAL MARKET SHARES.  ID., AT 629 - 633.  /10/ BUT, JUST AS
HAD THE FDIC BEFORE IT, THE COURT SAW THESE INCREASES IN NOMINAL SHARES
AS OF NO COMPETITIVE SIGNIFICANCE BECAUSE THE 5-PERCENT BANKS HAD
ALWAYS BEEN DE FACTO BRANCHES WITHIN THE C& S SYSTEM.  ID., AT 633 -
638.  /11/             III.  THE ISSUES UNDER THE SHERMAN AND CLAYTON
ACTS 

IT IS COMMON GROUND IN THIS CASE THAT THE 5-PERCENT BANKS HAVE BEEN
OPERATED FROM THE OUTSET SUBSTANTIALLY AS DE FACTO BRANCHES OF C& S,
EVEN THOUGH THEY ARE AND HAVE ALWAYS BEEN SEPARATE CORPORATE ENTITIES. 
FROM THESE AGREED-UPON FACTS, THE PARTIES DRAW SHARPLY DIVERGENT
CONCLUSIONS UNDER THE SHERMAN AND CLAYTON ACTS. 

SEC. 1, PROVIDES: 

   " EVERY CONTRACT, COMBINATION IN THE FORM OF TRUST OR

 OTHERWISE, OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE AMONG

  THE SEVERAL STATES...IS DECLARED TO BE ILLEGAL.  . . ." 

THE GOVERNMENT CONTENDS THAT THE RELATIONSHIPS BETWEEN C& S AND THE SIX
5-PERCENT BANKS CONSTITUTED UNREASONABLE RESTRAINTS OF TRADE ON TWO
ALTERNATIVE THEORIES:  (1) THE RELATIONSHIPS ENCOMPASSED AN AGREEMENT
TO FIX INTEREST RATES AND SERVICE CHARGES AMONG THE 5-PERCENT BANKS,
AND BETWEEN THESE BANKS AND C& S/OWNED BANKS, RESULTING IN A "PER SE"
VIOLATION OF THE SHERMAN ACT (2) THE PROGRAMS UNREASONABLY RESTRAINED
INTERBANK COMPETITION, AS TO PRICES AND SERVICES, BY EXTENDING
INTERBANK COOPERATION FAR BEYOND THE CONVENTIONAL "CORRESPONDENT"
ARRANGEMENTS WHICH LARGE CITY BANKS TRADITIONALLY MAKE WITH SMALL BANKS
IN OUTLYING MARKETS.  C& S DENIES THAT ITS RELATIONSHIPS WITH THE 5
PERCENT BANKS ENCOMPASSED ANY AGREEMENTS TO FIX PRICES AND CONTENDS
THAT THE PROCESS OF DE FACTO BRANCHING WAS A PROCOMPETITIVE RESPONSE TO
GEORGIA'S ANTICOMPETITIVE BAN ON DE JURE BRANCHING, AND THUS LEGAL
UNDER THE SHERMAN ACT'S "RULE OF REASON."  IN THE ALTERNATIVE, C& S
CONTENDS THAT ITS RELATIONSHIPS WITH THE 5-PERCENT BANKS WERE SUBJECT
TO THE "EXCLUSIVE PRIMARY JURISDICTION" OF THE FEDERAL RESERVE BOARD
AND THUS IMMUNE FROM ATTACK UNDER SEC. 1 OF THE SHERMAN ACT. 

1125, 15 U.S.C. SEC. 18, PROVIDES: 

     " NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY
OR

  INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE

  CAPITAL AND NO CORPORATION SUBJEC TO THE JURISDICTION OF THE

  FEDERAL TRADE COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF

  THE ASSETS OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE

IN ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT

  OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION,

  OR TO TEND TO CREATE A MONOPOLY."  /12/ 

THE GOVERNMENT ARGUES THAT THE ACQUISITIONS OF THE FIVE SUBURBAN
BANKS APPROVED BY THE FDIC WOULD "LESSEN" COMPETITION WHEN COMPARED TO
WHAT THE SITUATION WOULD BE IF THE DEFENDANT BANKS CEASED THEIR ALLEGED
VIOLATIONS OF THE SHERMAN ACT.  THE GOVERNMENT FURTHER CONTENDS THAT,
EVEN IF THE PRESENT RELATIONSHIPS BETWEEN C& S AND THE 5-PERCENT BANKS
DO NOT OFFEND THE SHERMAN ACT, SINCE THE RELATIONSHIPS MIGHT
NEVERTHELESS CHANGE AND THE WHOLE SITUATION BECOME MORE COMPETITIVE FOR
BUSINESS OR STATE-LAW REASONS, THE PROPOSED ACQUISITIONS VIOLATE SEC. 7
BY FORECLOSING THIS POSSIBILITY.  C& S ARGUES THAT THE ACQUISITIONS
WOULD MERELY CONVERT DE FACTO INTO DE JURE BRANCHES, WITH NO
PERCEPTIBLE EFFECT ON COMPETITION COMPARED WITH THE PRESENT SITUATION,
WHICH IS ASSERTED BY C& S TO BE LAWFUL UNDER THE SHERMAN ACT.  C& S
URGES THAT THERE IS NO REALISTIC POSSIBILITY OF FUTURE COMPETITION
AMONG THE DEFENDANT BANKS.  IN THE ALTERNATIVE, C& S CONTENDS THAT EACH
OF THE 5-PERCENT BANKS OPERATES IN A DISTINCT AND SEGREGABLE MARKET, SO
THAT THE PROPOSED ACQUISITIONS WOULD NOT LESSEN COMPETITION IN ANY
RELEVANT "SECTION OF THE COUNTRY"; AND THAT ANY ANTI-COMPETITIVE
EFFECTS OF THE ACQUISITIONS ARE "OUTWEIGHED IN THE PUBLIC INTEREST"
BECAUSE THE ACQUISITIONS MEET "THE CONVENIENCE AND NEEDS" OF BANKING
CUSTOMERS IN THE ATLANTA AREA.  /13/  THE DISTRICT COURT DID NOT REACH
THESE ALTERNATIVE CONTENTIONS. 

        A. THE SHERMAN ACT ISSUES

        1.  THE QUESTION OF IMMUNITY 

THE DISTRICT COURT THOUGHT THE CORRESPONDENT ASSOCIATE PROGRAMS
IMMUNE FROM SHERMAN ACT SCRUTINY BECAUSE THEY WERE SUBJECT TO THE
"EXCLUSIVE PRIMARY JURISDICTION" OF THE FEDERAL RESERVE BOARD UNDER THE
BANK HOLDING COMPANY ACT OF 1956, AS AMENDED.  WE DO NOT SO UNDERSTAND
THE LAW.  THE COURT RELIED ON WHITNEY BANK V. NEW ORLEANS BANK, 379
U.S. 411, BUT THE QUESTION IN THAT CASE WAS THE WHOLLY DIFFERENT ONE OF
WHETHER IT IS THE COMPTROLLER OF THE CURRENCY OR THE FEDERAL RESERVE
BOARD THAT HAS JURISDICTION TO DETERMINE WHETHER TRANSACTIONS BY A BANK
HOLDING COMPANY CONFORM WITH APPLICABLE STATE BANKING LAW.  FOR
GUIDANCE AS TO ANTITRUST IMMUNITIES, RECOURSE MUST BE HAD DIRECTLY TO
THE PROVISIONS OF THE BANK HOLDING COMPANY ACT, 12 U.S.C. SEC. 1841 ET
SEQ. 

THE STATUTORY SCHEME REQUIRES THE "PRIOR APPROVAL" OF THE FEDERAL
RESERVE BOARD FOR CERTAIN TRANSACTIONS BY BANK HOLDING COMPANIES--
INCLUDING TRANSACTIONS TENDING TO CREATE OR ENLARGE HOLDING COMPANY
CONTROL OF INDEPENDENT BANKS.  12 U.S.C. SEC. 1842 (A).  /14/ THE TYPES
OF TRANSACTIONS REQUIRING BOARD APPROVAL WERE EXPANDED BY AMENDMENTS TO
THE ACT IN 1966 AND 1970.  /15/ PRIOR TO 1966, IT APPEARED THAT BOARD
APPROVAL OF A TRANSACTION PROVIDED NO IMMUNITY FROM ANTITRUST ACTION,
FOR A NOTE THEN SET OUT UNDER 12 U.S.C. SEC. 1841 STATED THAT NOTHING
IN THE ACT WAS TO BE CONSTRUED AS A "DEFENSE" TO AN ANTITRUST SUIT. 
THE 1966 AMENDMENTS TO THE ACT FORMALIZED THIS PROVISION, BUT ALSO
BLUNTED ITS FORCE BY ESTABLISHING AN INTRICATE PROCEDURE FOR
ACCOMMODATING THE JURISDICTIONS OF THE BOARD AND THE JUSTICE
DEPARTMENT.  /16/ UNDER THE ACT AS AMENDED, THE BOARD "SHALL NOT
APPROVE" AN OTHERWISE FORBIDDEN TRANSACTION UNLESS IT MEETS CERTAIN
ANTITRUST STANDARDS DERIVED FROM, BUT NOT EVERYWHERE IDENTICAL TO, THE
STANDARDS OF THE SHERMAN ACT AND OF SEC. 7 OF THE CLAYTON ACT.  12
U.S.C. SEC. 1842 (C).  THE BOARD'S ORDER GRANTING OR DENYING AN
APPLICATION FOR PRIOR APPROVAL IS SUBJECT TO REVIEW IN THE COURTS OF
APPEALS.  FURTHERMORE, AN APPROVED TRANSACTION IS STAYED AUTOMATICALLY
FOR 30 DAYS, DURING WHICH TIME AN ANTITRUST SUIT CHALLENGING THE
TRANSACTION MAY BE BROUGHT IN THE DISTRICT COURT.  12 U.S.C. SEC. 1849
(B).  SUCH A SUIT IS GOVERNED BY THE MODIFIED ANTITRUST STANDARDS SET
OUT IN SEC. 1842 (C).  IF THE ANTITRUST SUIT IS NOT BROUGHT WITHIN 30
DAYS, AND THE TRANSACTION IS CONSUMMATED, 

"THE TRANSACTION MAY NOT THEREAFTER BE ATTACKED IN ANY JUDICIAL
PROCEEDING ON THE GROUND THAT IT ALONE AND OF ITSELF CONSTITUTED A
VIOLATION OF ANY ANTITRUST LAWS OTHER THAN SECTION 2 OF TITLE 15 (SEC.
2 OF THE SHERMAN ACT), BUT NOTHING IN THIS CHAPTER SHALL EXEMPT ANY
BANK HOLDING COMPANY INVOLVED IN SUCH A TRANSACTION FROM COMPLYING WITH
THE ANTITRUST LAWS AFTER THE CONSUMMATION OF SUCH TRANSACTION."  12
U.S.C. SEC. 1849 (B). 

C& S CAN DRAW NO CONSOLATION FROM THESE PROVISIONS.  IT IS TRUE THAT
THE STAFF OF THE FEDERAL RESERVE BOARD, IN 1968, CAME TO AN
"UNDERSTANDING" WITH C& S THAT THE CORRESPONDENT ASSOCIATE PROGRAMS
THEN IN EFFECT DID NOT OFFEND SEC. 1842 (A) OF THE BANK HOLDING COMPANY
ACT, 12 U.S.C. SEC. 1842 (A), AND THUS DID NOT REQUIRE FORMAL BOARD
"APPROVAL."  /17/ BUT THIS DID NOT GIVE RISE TO ANY ANTITRUST
IMMUNITY.  A CONSUMMATED TRANSACTION ACQUIRES IMMUNITY UNDER SEC. 1849
(B) ONLY WHERN NO ANTITRUST ACTION HAS BEEN COMMENCED WITHIN 30 DAYS
AFTER THE TRANSACTION HAS RECEIVED THE "APPROVAL" OF THE BOARD, IN AN
ORDER WHICH IS SUBJECT TO JUDICIAL REVIEW AND WHICH REFLECTS
APPLICATION BY THE BOARD OF THE SPECIAL ANTITRUST STANDARDS OF SEC.
1842 (C).  THE IMMUNITY APPLIES ONLY TO "AN ACQUISITION, MERGER, OR
CONSOLIDATION TRANSACTION APPROVED UNDER SECTION 1842 OF THIS TITLE IN
COMPLIANCE WITH THIS CHAPTER."  SEC.  1849 (B).  THE OBVIOUS PURPOSE OF
THE COMPLEX MACHINERY IN SEC. 1849 (B) IS TO ACCORD FINALITY TO FORMAL
ACTIONS OF THE BOARD NOT SUBJECTED TO TIMELY CHALLENGE UNDER THE
ANTITRUST LAWS.  THERE IS NO INDICATION THAT CONGRESS WISHED TO ACCORD
A SIMILAR FINALITY TO THE INFORMAL VIEWS OF THE BOARD'S STAFF. 

WE NOTE, HOWEVER, THAT THE 1966 AMENDMENTS ALSO ADDED A
"GRANDFATHEER" PROVISION TO THE BANK HOLDING COMPANY ACT, 12 U.S.C.
SEC. 1849 (D): 

     " ANY ACQUISITION, MERGER, OR CONSOLIDATION OF THE KIND

  DESCRIBED IN SECTION 1842 (A) OF THIS TITLE WHICH WAS CONSUMMATED

  AT ANY TIME PRIOR OR SUBSEQUENT TO MAY 9, 1956, AND AS TO WHICH

  NO LITIGATION WAS INITIATED BY THE ATTORNEY GENERAL PRIOR TO JULY

  1, 1966, SHALL BE CONCLUSIVELY PRESUMED NOT TO HAVE BEEN IN

  VIOLATION OF ANY ANTITRUST LAWS OTHER THAN SECTION 2 OF TITLE 15

  (SEC. 2 OF THE SHERMAN ACT)." 

UNLIKE SEC. 1849 (B), THIS PROVISION DOES NOT STATE OR IMPLY THAT THE
COVERED TRANSACTIONS MUST HAVE RECEIVED THE FORMAL APPROVAL OF THE
FEDERAL RESERVE BOARD.  THIS GRANDFATHER PROVISION IS NOT, LIKE SEC.
1849 (B), AN ATTEMPT TO ACCOMMODATE THE COMPETING JURISDICTIONS OF THE
FEDERAL RESERVE BOARD UNDER SEC. 1842 AND THE JUSTICE DEPARTMENT UNDER
THE ANTITRUST LAWS.  RATHER, THE GRANDFATHER PROVISION IS A SIMPLE
CONFERRAL OF LEGISLATIVE AMNESTY FOR THERETOFORE UNCHALLENGED
TRANSACTIONS COMPLETED BEFORE CONGRESS HAD CLARIFIED THE NATURE OF THAT
ACCOMMODATION. 

THE TRANSACTIONS BY WHICH C& S CREATED A CORRESPONDENT ASSOCIATE
RELATIONSHIP WITH THREE OF THE 5-PERCENT BANKS--THE SANDY SPRINGS,
CHAMBLEE, AND TUCKER BANKS--WERE CONSUMMATED PRIOR TO JULY 1966, AND
THE ATTORNEY GENERAL HAD TAKEN NO ACTION AGAINST THOSE TRANSACTIONS BY
THAT DATE.  THOSE TRANSACTIONS THUS FALL WITHIN THE TERMS OF THE
GRANDFATHER PROVISION, AND THE CORRESPONDENT ASSOCIATE PROGRAMS IN
FORCE AT THOSE THREE BANKS ARE, THEREFORE, IMMUNE FROM ATTACK UNDER
SEC. 1 OF THE SHERMAN ACT. 

WHILE THE FORMATION BY C& S OF A DE FACTO BRANCH WAS A UNIQUE TYPE
OF TRANSACTION, IT MAY FAIRLY BE CHARACTERIZED AS AN "ACQUISITION,
MERGER, OR CONSOLIDATION OF THE KIND DESCRIBED IN SEC. 1842 (A)." 
FORMING A DE FACTO BRANCH WAS A MULTIFACETED OPERATION--INVOLVING A
MULTIPLICITY OF PURCHASES OF STOCK BY A NUMBER OF PARTIES, THE ADOPTION
OF THE C& S LOGOGRAM BY THE DE FACTO BRANCH, THE CONNECTION OF THE DE
FACTO BRANCH WITH C& S PERSONNEL AND INFORMATION PROGRAMS, THE
STRUCTURING OF THE BANK TO RECEIVE AND ADMINISTER ALL C& S BANKING
SERVICES, AND THE ESTABLISHMENT OF FORMAL C& S INFLUENCE OVER THE BOARD
OF DIRECTORS AT THE DE FACTO BRANCH.  BUT EVEN BEFORE ITS SCOPE WAS
EXPANDED IN 1970, SEC. 1842 (A) WAS CONCERNED WITH MORE THAN THE
LITERAL "ACQUISITION" OF STOCK:  IT TOOK BROAD ACCOUNT OF THE
"INDIRECT" CONTROL OF STOCK, AND THE CONTROL OF BOARDS OF DIRECTORS "IN
ANY MANNER," BY BANK HOLDING COMPANIES.  /18/ THE GRANDFATHER PROVISION
CREATES IMMUNITY UNDER SEC. 1 OF THE SHERMAN ACT, NOT SIMPLY UNDER SEC.
7 OF THE CLAYTON ACT, AN INDICATION THAT ITS PROTECTION EXTENDS NOT
MERELY TO LITERAL ACQUISITIONS, MERGERS, AND CONSOLIDATIONS, BUT ALSO
TO "RESTRAINTS OF TRADE" SIMULTANEOUS WITH AND FUNCTIONALLY INTEGRAL TO
SUCH TRANSACTIONS.  THOUGH MULTIFACETED, THE FORMATION BY C& S OF A DE
FACTO BRANCH WAS A UNITARY AND COHESIVE UNDERTAKING IN THE SENSE THAT
ALL THE FACETS WERE CLOSELY COORDINATED, SIMULTANEOUSLY INSTITUTED, AND
DESIGNED TO SERVE THE SINGLE PURPOSE OF FITTING THE NEW BANK INTO THE "
C& S SYSTEM."  THERE IS VITUALLY NOTHING ABOUT THE PRESENT
CORRESPONDENT ASSOCIATE PROGRAMS THAT WAS NOT FULLY EVIDENT AND IN
PLACE FROM THE MOMENT THE PROGRAMS WERE LAUNCHED.  THERE HAS BEEN NO
INCREASE IN C& S CONTROL, NOR ANY CHANGE IN THE WAY IT HAS BEEN
EXERCISED. 

WHETHER THES PROGRAMS VIOLATED SEC. 1842 (A)--AS IT APPLIES TODAY
ORAS IT APPLIED WHEN THE PROGRAMS BEGAN--IS NOT RELEVANT TO OUR
INQUIRY.  /19/ BY ITS TERMS, THE GRANDFATHER PROVISION APPLIES TO
TRANSACTIONS OF THE KIND DESCRIBED IN SEC. 1842 (A).  WE CANNOT BELIEVE
THAT CONGRESS WISHED TO GRANT THE BENEFITS OF THE PROVISION ONLY TO
TRANSACTIONS THAT PLAINLY TRANSGRESSED SEC. 1842 (A).  SUCH A
CONSTRUCTION WOULD MAKE APPLICATION OF THE GRANDFATHER PROVISION NOT
ONLY CUMBERSOME AND TIME CONSUMING, /20/ BUT ALSO FLAGRANTLY
INEQUITABLE.  THE FORMATION OF A DE FACTO C& S BRANCH INVOLVED THE
DIRECT AND INDIRECT ACQUISITION OF BANK STOCK, AND THE DIRECT AND
INDIRECT ASSERTION OF CONTROL OVER THE GOVERNANCE AND OPERATIONS OF A
BANK, BY A BANK HOLDING COMPANY.  THOUGH UNSUSUAL IN FORM, SUCH A
TRANSACTION QUITE CLEARLY FALLS WITHIN THE CLASS OF DEALINGS BY BANK
HOLDING COMPANIES WHICH CONGRESS INTENDED, IN SEC. 1849 (D), TO SHIELD
FROM RETROACTIVE CHALLENGE UNDER THE ANTITRUST LAWS. 

        2.  DE FACTO BRANCHING UNDER THE SHERMAN ACT 

THREE OF THE 5-PERCENT BANKS--THE PARK NATIONAL, SOUTH DE KALB, AND
NORTH FULTON BANKS--WERE FORMED AFTER JULY 1, 1966, AND THEIR
CORRESPONDENT ASSOCIATE RELATIONSHIPS WITH C& S ARE THEREFORE BEYOND
THE REACH OF THE GRANDFATHER PROVISION OF THE BANK HOLDING COMPANY ACT
AND SUBJECT TO SCRUTINY UNDER THE SHERMAN ACT. 

EACH OF THESE BANKS WAS FOUNDED AB INITIO THROUGHT THE SPONSORSHIP
OF C& S. EXCEPT FOR THAT SPONSORSHIP, THEY WOULD VERY PROBABLY NOT
WXIST.  THE RECORD SHOWS THAT OTHER BANKIN ORGANIZATIONS HAD BEEN
UNSUCCESSFUL IN ATTEMPTING TO LAUNCH NEW BANKS IN THE AREA, AND C& S
AFFILIATION AND FINANCIAL BACKING WERE INSTRUMENTAL IN CONVINCING STATE
AND FEDERAL BANKING AUTHORITIES TO CHARTER THESE NEW BANKS.  IN SHORT,
THES BANKS REPRESENTED A POLICY BY C& S OF DE FACTO BRANCHING THROUGH
THE ACQUISITION, AND CONSEQUENT ELIMINATION, OF PRE-EXISTING,
INDEPENDENT BANKS.  /21/     OF NECESSITY, THE GOVERNMENT'S ATTACK ON
THIS PROCESS IS HIGHLY TECHNICAL.  HAD THE NEW BANKS BEEN DE JURE
BRANCHES OF C& S, THE WHOLE PROCESS WOULD HAVE BEEN BEYOND REPROACH. 
BRANCHING ALLOWS ESTABLISHED BANKS TO EXTEND THEIR SERVICES TO NEW
MARKETS, THEREBY BROADENING THE CHOICES AVAILABLE TO CONSUMERS IN THOSE
MARKETS.  /22/ HAVING ACCESS TO PARENT-BANK FINANCIAL SUPPORT, EXPERT
ADVICE, AND PROVEN BANKING SERVICES, BRANCHES OF SEVERAL CITY BANKS CAN
OFTEN ENTER A MARKET NOT YET LARGE OR DEVELOPED ENOUGH TO SUPPORT A
VARIETY OF INDEPENDENT, UNIT BANKS.  BRANCHING THUS OFFERS COMPETITIVE
CHOICE TO MARKETS WHERE MONOPOLY OR OLIGOPOLY MIGHT OTHERWISE PREVAIL. 
FURTHERMORE, THE BRANCHING PROCESS GIVES TO OUTLYING CUSTOMERS THE
BENEFIT OF SOPHISTICATED SERVICES WHICH LOCAL UNIT BANKS MIGHT HAVE
LITTLE ABILITY OR INCENTIVE TO DELIVER.  THE GOVERNMENT DENIES NONE OF
THIS, NOR THAT C& S'S PROGRAM OF DE FACTO BRANCHING WAS, UNTIL 1970,
THE CLOSEST SUBSTITUTE TO DE JURE BRANCHING ALLOWED UNDER GEORGIA LAW. 
YET THE GOVERNMENT INSISTS THAT THIS DE FACTO BRANCHING VIOLATED THE
SHERMAN ACT BECAUSE THE PARENT BANK AND ITS DE FACTO BRANCHES WERE
LEGALLY DISTINCT CORPORATE ENTITIES AND WERE OBLIGATED, THEREFORE, TO
COMPETE VIGOROUSLY AGAINST EACH OTHER. 

IT IS, OF COURSE, CONCEDED THAT C& S'S DE FACTO BRANCHES HAVE NOT
BEHAVE AS ACTIVE COMPETITORS WITH RESPECT EITHER TO EACH OTHER OR TO C&
S NATIONAL AND ITS MAJORITY-OWNED AFFILIATES.  BUT THE GOVERNMENT GOES
FURTHER AND CONTENDS THAT THE CORRESPONDENT ASSOCIATE PROGRAMS HAVE
ACTURALLY ENCOMPASSED AT LEAST A TACIT AGREEMENT TO FIX INTEREST RATES
AND SERVICE CHARGES, SEE INTERSTATE CIRCUIT, INC. V. UNITED STATES, 306
U.S. 208,227; UNITED STATES V. MASONITE CORP., 316 U.S. 265, 275 - 276;
UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707, 723; UNITED
STATES V. GENERAL MOTORS CORP., 384 U.S. 127, 142 - 143, SO AS TO MAKE
THE INTERRELATIONSHIPS--TO THAT EXTENT AT LEAST--ILLEGAL "PER SE."  SEE
UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 224 - 226, N. 59;
UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29, 47.  C& S VIGOROUSLY
DENIES THE EXISTENCE OF ANY AGREEMENT TO FIX PRICES.  THE EVIDENCE IN
THE RECORD IS MIXED. 

C& S DID REGULARLY NOTIFY THE 5-PERCENT BANKS--AS IT DID ITS DE JURE
BRANCHES--OF THE INTEREST RATES AND SERVICE CHARGES IN FORCE AT C& S
NATIONAL AND ITS AFFILIATES.  BUT THE DISSEMINATION OF PRICE
INFORMATION IS NOT ITSELF A PER SE VIOLATION OF THE HSERMAN ACT.  SEE
MAPLE FLOORING ASSN. V. UNITED STATES, 268 U.S. 563; CEMENT MFFS. 
PROTECTIVE ASSN. V. UNITED STATES, 268 U.S. 588; UNITED STATES V.
CONTAINER CORP., 393 U.S. 333, 338 (CONCURRING OPINION).  A FEW OF THE
MEMORANDA DISTRIBUTED BY C& S COULD BE CONSTRUED AS ADVOCATING PRICE
UNIFORMITY; ONT HE OTHER HAND, THE MEMORANDA WERE ALMOST WITHOUT
EXCEPTION STAMPED "FOR INFORMATION ONLY," AND THE 5-PERCENT BANKS WERE
ADMONISHED BY C& S, SEVERAL TIMES AND VERY CLEARLY, TO USE THEIR OWN
JUDGMENT IN SETTING PRICES; INDEED, THE BANKS WERE WARNED THAT THE
ANTITRUST LAWS REQUIRED NO LESS.  THE DISTRICT COURT OBSERVED THAT IN
FACT PRICES DID NOT OFTEN VARY SIGNIFICANTLY AMONG THE 5-PERCENT BANKS
OR BETWEEN THESE BANKS AND C& S NATIONAL, BUT THE COURT ATTRIBUTED THIS
TO THE "NATURAL DEFERENCE OF THE RECIPIENT TO INFORMATION FROM ONE WITH
GREATER EXPERTISE OR BETTER SERVICES."  372 F.SUPP., AT 628.  AND THE
COURT FOUND AS A FACT THAT THERE WAS NO "COLLUSIVE PRICE FIXING."  ID.,
AT 626. 

WERE WE DEALING WITH INDEPENDENT COMPETITORS HAVING NO PERMISSIBLE
REASON FOR INTIMATE AND CONTINUOUS COOPERATION AND CONSULTATIONAS TO
ALMOST EVERY FACET OF DOING BUSINESS, THE EVIDENCE ADDUCED HERE MIGHT
WELL PRECLUDE A FINDING THAT THE PARTIES WERE NOT ENGAGED IN A
CONSPIRACY TO AFFECT PRICES.  BUT, AS WE INDICATE BELOW, THE
CORRESPONDENT ASSOCIATE PROGRAM, AS SUCH, WAS PERMISSIBLE UNDER THE
SHERMAN ACT.  IN THIS UNUSUAL LIGHT, WE CANNOT HOLD CLEARLY ERRONEOUS
THE DISTRICT COURT'S FINDING THAT THE LACK OF SIGNIFICANT PRICE
COMPETITION DID NOT FLOW FROM A TACIT AGREEMENT BUT INSTEAD WAS AN
INDIRECT, UNINTENTIONAL, AND FORMALLY DISCOURAGED RESULT OF THE SHARING
OF EXPERTISE AND INFORMATION WHICH WAS AT THE HEART OF THE
CORRESPONDENT ASSOCIATE PRRGRAM.  FED. RULE CIV. PROC. 52 (A); UNITED
STATES V. GENERAL DYNAMICS CORP., 415 U.S. 486, 508. 

THE GOVERNMENT ARGUES, ALTERNATIVELY, THAT THE CORRESPONDENT
ASSOCIATE PROGRAMS HAVE GONE FAR BEYOND CONVENTIONAL "CORRESPONDENT"
RELATIONSHIPS, AND THAT CONSEQUENTLY THESE PROGRAMS HAVE "UNREASONABLY"
RESTRAINED COMPETITION AMONG THE 5-PERCENT BANKS AND BETWEEN THESE
BANKS AND C& S NATIONAL.  THE DISTRICT COURT WAS NOT PERSUADED BY THIS
THEORY: 

" THE DIFFERENCE BETWEEN A PURE CORRESPONDENT RELATIONSHIP AND A
CORRESPONDENT ASSOCIATE RELATIONSHIP AS SET FORTH IN THE EVIDENCE IS
MERELY ONE OF DEGREE, A FINE LINE OF DEMARCATION ALMOST IMPOSSIBLE FOR
THE COURT TO PERCEIVE... IN EITHER CASE THERE IS THE FLOW OF
INFORMATION AS TO RATES, PRACTICES, ETC., WHICH THE GOVERNMENT
APPARENTLY APPLAUDS OR AT LEAST CONDONES IN A CORRESPONDENT BANKING
RELATIONSHIP."  372 F.SUPP., AT 628. 

THE COURT'S DILEMMA IS UNDERSTANDABLE, FOR IN NEITHER LAW NOR
BANKING CUSTOM HAS THERE DEVELOPED A CLEAR, FIXED DEFINITION OF THE
CORRESPONDENT RELATIONSHIP.  /23/ 

" CORRESPONDENT BANKING IS AN INTERBANK PRACTICE WHEREBY 'CITY'

  CORRESPONDENT BANKS PROVIDE A CLUSTER OF SERVICES TO SMALLER

  'COUNTRY' BANKS IN EXCHANGE FOR INTERBANK DEPOSITS.  DATING BACK

  TO COLONIAL TIMES, CORRESPONDENT BANKING ORGINALLY PROVIDED AN

  EXTENDED NETWORK OF INDEPENDENT UNIT BANKS WITH A LINK TO

  FINANCIAL CENTERS, AND AT THE SAME TIME FURNISHED SUBSTITUTE

  CENTRAL BANKING FUNCTIONS.  TODAY, AS A VITAL COMPONENT OF THE

  ERA OF ELECTRONIC BANKING, IT ENABLES CITY CORRESPONDENTS TO

  PROVIDE CUSTOMERS WITH A RANGE OF SERVICES THAT IS VARIED,

  EXTENSIVE AND CONSTANTLY EXPANDING; ONE SURVEY LISTS AS MANY AS

  FIFTY DIFFERENT CATEGORIES." 

AMONG THE SERVICES TYPICALLY PROVIDED WITHIN A CONVENTIONAL
CORRESPONDENT ARRANGEMENT ARE CHECK CLEARING, HELP WITH BILL
COLLECTIONS, PARTICIPATION IN LARGE LOANS, LEGAL ADVICE, HELP IN
BUILDING SECURITIES PORTFOLIOS, COUNSELING AS TO PERSONNEL POLICIES,
STAFF TRAINING, HELP IN SITE SELECTION, AUDITING, AND THE PROVISION OF
ELECTRONIC DATA PROCESSING.  FURTHERMORE, LIKE C& S'S PROGRAM, THE
CORRESPONDENT ARRANGEMENT IS OFTEN ESTABLISHED AS A PRELUDE TO A FORMAL
MERGER BETWEEN THE TWO BANKS.  /24/ 

NEVERTHELESS, C& S'S PROGRAM DOES APPEAR TO HAVE GONE SEVERAL STEPS
BEYOND CONVENTIONAL CORRESPONDENT ARRANGEMENTS.  C& S HAS CLOSELY
ADVISED THE BOARDS OF DIRECTORS OF THE 5-PERCENT BANKS, SUPPLIED THEIR
CHIEF EXECUTIVE OFFICERS, ALLOWED FULL "BRANCHLIKE" USE OF THE C& S
LOGOGRAM, PROVIDED ALL THE C& S SERVICES AVAILABLE AT A DE JURE BRANCH,
DEALT WITH THE 5-PERCENT BANKS THROUGH THE C& S BRANCH ADMINISTRATION
DEPARTMENT, AND PROVIDED CONSTANT AND DETAILED INFORMATION ON PRICES
AND ON ALL BANKING PROCEDURES.  /25/ IT IS CONCEIVABLE THAT THESE
RELATIONSHIPS, SEPARATELY OR TAKEN TOGETHER, HAVE RESTRAINED
COMPETITION AMONG THE DEFENDANT BANKS MORE THOROUGHLY OR EFFECTIVELY
THAN WOULD HAVE A CONVENTIONAL CORRESPONDENCE PROGRAM.  BUT EVEN IF THE
GOVERNMENT HAD PROVED THIS, WHICH THE DISTRICT COURT FOUND NOT TO BE
THE CASE, THAT ALONE WOULD NOT MAKE OUT A SHERMAN ACT VIOLATION.  C& S
HAS OPERATED THE 5-PERCENT BANKS AS DE FACTO BRANCHES AS A DIRECT
RESPONSE TO GEORGIA'S HISTORIC RESTRICTIONS ON DE JURE BRANCHING, AND
THE QUESTION THEREFORE REMAINS WHETHER RESTRAINTS OF TRADE INTEGRAL TO
THIS PARTICULAR, UNUSUAL FUNCTION ARE UNREASONABLE.  SEE CHICAGO BOARD
OF TRADE V. UNITED STATES, 246 U.S. 231, 238.  WE TURN DIRECTLY TO THAT
QUESTION. 

THE CENTRAL MESSAGE OF THE SHERMAN ACT IS THAT A BUSINESS ENTITY
MUST FIND NEW CUSTOMERS AND HIGHER PROFITS THROUGH INTERNAL EXPANSION--
THAT IS, BY COMPETING SUCCESSFULLY RATHER THAN BY ARRANGING TREATIES
WITH ITS COMPETITORS.  THIS COURT HAS HELD THAT EVEN COMMONLY OWNED
FIRMS MUST COMPETE AGAINST EACH OTHER, IF THEY HOLD THEMSELVES OUT AS
DISTINCT ENTITIES.  " TH CORPORATE INTERRELATIONSHIPS OF THE
CONSPIRATORS...ARE NOT DETERMINATIVE OF THE APPLICABILITY OF THE
SHERMAN ACT."  UNITED STATES V. YELLOW CAB CO., 332 U.S. 218, 227.  SEE
ALSO KIEFER-STEWART CO. V. JOSEPH E. SEAGRAM & SONS, INC., 340 U.S.
211, 215; TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S. 593,
598; PERMA LIFE MUFFIERS, INC. V. INTERNATIONAL PARTS CORP., 392 U.S.
134, 141 - 142.  A FORTIORI, INDEPENDENTLY OWNED FIRMS CANNOT ESCAPE
COMPETING MERELY BY PRETENDING TO COMMON OWNERSHIP OR CONTROL, FOR THE
PRETENSE WOULD SIMPLY PERFECT THE CARTEL.  WE MAY ALSO ASSUME, THOUGH
THE QUESTION IS A NEW ONE, THAT A BUSINESS ENTITY GENERALLY CANNOT
JUSTIFY RESTRAINING TRADE BETWEEN ITSELF AND AN INDEPENDENTLY OWNED
ENTITY MERELY ON THE GROUND THAT IT HELPED LAUNCH THAT ENTITY, BY
PROVIDING EXPERT ADVICE OR SEED CAPITAL.  OTHERWISE THE TECHNIQUE OF
SPONSORSHIP FOLLOWED BY RESTRAINT MIGHT DISPLACE INTERNAL GROWTH AS THE
NORMAL AND LEGITIMATE TECHNIQUE OF BUSINESS EXPANSION, WITH UNKNOWABLE
CONSEQUENCES. 

BUT THESE GENERAL PRINCIPLES DO NOT DISPOSE OF THE PRESENT CASE.  C&
S WAS ABSOLUTELY RESTRAINED BY STATE LAW FROM REACHING THE SUBURBAN
MARKET THROUGH THE PREFERRED PROCESS OF INTERNAL EXPANSION.  DE FACTO
BRANCHING WAS THE CLOSEST AVAILABLE SUBSTITUTE.  /26/ JUST LAST TERM,
IN A BRIEF PRESENTED TO THIS COURT, THE JUSTICE DEPARTMENT TOLD US THAT
IT WAS DESIRABLE AND PROCOMPETITIVE FOR A BANK TO "(ENTER) DE NOVO INTO
AREAS FORECLOSED TO BRANCHING BY SPONSORING THE ORGANIZATION OF AN
AFFILIATE BANK, AND LATER ACQUIRING THE BANK.  THIS METHOD OF EXPANSION
IS LEGAL AND A WELL-RECOGNIZED PRACTICE USED BY LARGE STATEWIDE BANKING
ORGANIZATIONS, AND RECOGNIZED BY THE FEDERAL BANKING AUTHORITIES." 
/27/  THE GOVERNMENT ACKNOWLEDGED THAT SUCH A SPONSORED BANK COULD "BE
AFFILIATED WITH ITS SPONSOR FOR PURPOSES OF CORRESPONDENT RELATIONSHIPS
AND OTHER INTER-BANK SERVICES, INCLUDING FINANCIAL SUPPORT," AND THAT
IT COULD BE "FORMED" BY THE PARENT BANKHS OFFICERS, DIRECTORS, OR THEIR
ASSOCIATES" AND COULD BE "ASSISTED" BY THE PARENT FIRM "UNTIL ACQUIRED
AND CONVERTED INTO A BRANCH."  /28/  THIS IA AS GOOD A CURBSTONE
DESCRIPTION AS ANY OF PRECISELY THE RELATIONSHIPS AT ISSUE IN THE
PRESENT CASE.  /29/ 

TO CHARACTERIZE THES RELATIONSHIPS AS AN UNREASONABLE RESTRAINT OF
TRADE IS TO FORGET THAT THEIR WHOLE PURPOSE AND EFFECT WERE TO DEFEAT A
RESTRAINT OF TRADE.  GEORGIA'S ANTIBRANCHING LAW AMOUNTED TO A
COMPULSORY MARKET DIVISION.  ACCOMPLISHED THROUGH PRIVATE AGREEMENT,
MARKET DIVISION IS A PER SE OFFENSE UNDER THE SHERMAN ACT: 

" THIS COURT HAS REITERATED TIME AND AGAIN THAT '(HORIZONTAL
TERRITORIAL LIMITATIONS...ARE NAKED RESTRAINTS OF TRADE WITH NO PURPOSE
EXCEPT STIFLING OF COMPETITION.'"  UNITED STATES V. TOPCO ASSOCIATES,
INC., 405 U.S. 596, 608, QUOTING WHITE MOTOR CO. V. UNITED STATES, 372
U.S. 253, 263. 

THE OBVIOUS PURPOSE AND EFFECT OF A RIGID ANTIBRANCHING LAW ARE TO
MAKE THE POTENTIAL BANK CUSTOMERS OF SUBURBAN, SMALL TOWN AND RURAL
AREAS A CAPTIVE MARKET FOR SMALL UNIT BANKS.  /30/ C& S DEVISED A
STRATEGY TO CIRCUMVENT THIS STATUTORY BARRIER.  BY PROVIDING NEW
BANKING OPTIONS TO SUBURBAN ATLANTA CUSTOMERS, WHILE ELIMINATING NO
EXISTING OPTIONS, THE DE FACTO BRANCHING PROGRAM OF C& S HAS PLAINLY
BEEN PROCOMPETITIVE. 

THE GOVERNMENT SUGGESTS THAT A "CONVENTIONAL" CORRESPONDENT
RELATIONSHIP BETWEEN C& S AND THE 5-PERCENT BANKS WOULD HAVE BEEN
EQUALLY PROCOMPETITIVE AND WOULD HAVE HAD THE ADDED VIRTUE OF
FACILITATING COMPETITION AMONG THE 5-PERCENT BANKS AND BETYWEN THEM AND
C& S NATIONAL.  THIS IS MERE SPECULATION ON THE PRESENT RECORD. 
MOREOVER, IT IS FAR FROM CLEAR THAT A CONVCENTIONAL CORRESPONDENT
RELATIONSHIP WOULD HAVE ALLOWED C& S TO PUT ITS FULL RANGE OF SERVICES
IN TO THE SUBURBAN MARKET WHICH, IN LIGHT OF THE ANTIBRANCHING LAW, WAS
THE VERY POINT OF ITS POLICY AND PROGRAM.  PUTTING TO ONE SIDE THE
TOTAL LACK OF REALISM IN SUGGESTING THAT C& S MIGHT HAVE FOUNDED NEW
BANKS THAT WOULD HAVE COMPETED VIGOROUSLY WITH IT AND WITH EACH OTHER,
CF. UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S. 158, 1698 THE
GOVERNMENT'S ARGUMENT WHOLLY DISREGARDS C& S'S ULTIMATE GOAL OF
ACQUIRING THE NEW BANKS OUTRIGHT AS SOON AS LEGALLY POSSIBLE, A GOAL
WHICH THE GOVERNMENT LAST YEAR THOUGHT WHOLY PROPER.  WE HOLD THAT, IN
THE FACE OF THE STRINGENT STATE RESTRICTIONS ON BRANCHING, C& S'S
PROGRAM OF FOUNDING NEW DE FACTO BRANCHES, AND MAINTAINING THEM AS
SUCH, DID NOT INFRINGE SEC. 1 OF THE SHERMAN ACT. 

        B. THE CLAYTON ACT CLAIM 

IN THE LIGHT OF THE PREVIOUS DESCUSSION, DISPOSITION OF THE CLAYTON
ACT CLAIM BECOMES RELATIVELY STRAIGHT-FORWARD.  THE ISSUE UNDER SEC. 7
OF THE CLAYTON ACT IS WHETHER THE EFFECT OF THE PROPOSED ACQUISITIONS,
APPROVED BY THE FDIC, "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION...IN
ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY." 

THE GOVERNMENT ESTABLISHED THAT C& S IS THE PREDOMINANT BANKING
INSTITUTION IN DE KALB COUNTY, FULTON COUNTY, NORTH FULTON COUNTY, AND
THE ATLANTA AREA GENERALLY; THAT IN THESE MARKETS THE COMMERCIAL
BANKING INDUSTRY IS QUITE HIGHLY CONCENTRATED IN TERMS OF MARKET SHARE
STATISTICS; AND, OF COURSE, THAT THE PROPOSED ACQUISITIONS WOULD
INCREASE C& S'S NOMINAL MARKET SHARES.  /31/ THE DISTRICT COURT DID NOT
DECIDE WHETHER THE GEOGRAPHIC MARKETS PROPOSED BY THE GOVERNMENT WERE
THE APPROPRIATE ONES.  BUT ASSUMING, ARGUENDO, THAT THEY WERE, THE
GOVERNMENT PLAINLY MADE OUT A PRIMA FACIE CASE OF A VIOLATION OF SEC. 7
UNDER SEVERAL DECISIONS OF THIS COURT.  SEE UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 362 - 366; UNITED STATES V.
PHILLIPSBURG NATIONAL BANK & TRUST CO., 399 U.S. 350, 365 - 367; UNITED
STATES V. GENERAL DYNAMICS CORP., 415 U.S., AT 497.  IT WAS THUS
INCUMBENT UPON C& S TO SHOW THAT THE MARKET-SHARE STATISTICS GAVE AN
INACCURATE ACCOUNT OF THE ACQUISITIONS' PROBABLE EFFECTS ON
COMPETITION.  UNITED STATES V. GENERAL DYNAMICS CORP., SUPRA, AT 497 -
498; UNITED STATES V. MARINE BANCORPORATION, 418 U.S., AT 631.  THE
DISTRICT COURT, LIKE THE FDIC BEFORE IT, CONCLUDED THAT C& S HAD MADE
THE NECESSARY SHOWING THAT THESE PROPOSED ACQUISITIONS WOULD NOT
"LESSEN" COMPETITION FOR THE SIMPLE REASON THAT UNDER THE CORRESPONDENT
ASSOCIATE PROGRAM THAT HAD BEEN CONTINUOUSLY IN EFFECT, NO REAL
COMPETITION HAD DEVELOPED OR WAS LIKELY TO DEVELOP AMONG THE 5-PERCENT
BANKS, OR BETWEEN THESE AND C& S NATIONAL.     AS TO PRESENT AND PAST
COMPETITION, THE GOVERNMENT AGREES THERE IS AND HAS BEEN NONE.  IF THIS
STATE OF AFFAIRS WERE THE RESULT OF VIOLATIONS OF THE SHERMAN ACT, WE
AGREE WITH THE GOVERNMENT THAT MAKING THE EVIL PERMANENT THROUGH
ACQUISITION OR MERGER WOULD OFFEND THE CLAYTON ACT.  SEE CITIZEN
PUBLISHING CO. V. UNITED STATES, 394 U.S. 131, 135.  BUT WE HAVE
ALREADY CONCLUDED THAT C& S'S PROGRAM OF FOUNDING AND MAINTAINING NEW
DE FACTO BRANCHES IN THE FACE OF GEORGIA'S ANTI-BRANCHING LAW DID NOT
VIOLATE THE HSERMAN ACT, AND THE DE FACTO BRANCHES WHICH C& S PROPOSES
TO ACQUIRE WERE ALL FOUNDED AB INITIO WITH C& S SPONSORSHIP.  IT THUS
INDISPUTABLY FOLLOWS THAT THE PROPOSED ACQUISITIONS WILL EXTINGUISH NO
PRESENT COMPETITIVE CONDUCT OR RELATIONSHIPS.  SEE UNITED STATES V.
TRANS TEXAS BANCORPORATION, 412 U.S. 946, AFF'G PERCURIAM 1972 TRADE
CAS. 74,257 (WD TEX.). 

AS FOR FUTURE COMPETION, NEITHER THE DISTRICT COURT NOR THE FDIC
COULD FIND ANY REALISTIC PROSPECT THAT DENIAL OF THES ACQUISITIONS
WOULD LEAD THE DEFENDANT BANKS TO COMPETE AGAINST EACH OTHER.  THE 5
PERCENT BANKS THEORETICALLAY COULD BREAK THEIR TIES WITH C& S AND ITS
CORRESPONDENT ASSOCIATE PROGRAM, FOR THES BANKS ARE EACH INDEPENDENTLY
OWNED, BUT THE RECORD SHOWS THAT NONE OF THE SHAREHOLDERS, DIRECTORS,
OR OFFICERS OF THE 5-PERCENT BANKS EXPRESSED ANY INCLINATION TO DO SO,
AND THERE WAS NO EVIDENCE THAT THE PROGRAM HAS BEEN OTHER THAN
BENEFICIAL AND PROFITABLE FOR BOTH C& S AND THE 5-PERCENT BANKS.  /32/
THE CLAYTON ACT IS CONCERNED WITH "PROBABLE" EFFECTS ON COMPETITION,
NOT WITH "EPHEMERAL POSSIBILITIES."  BROWN SHOE CO. V. UNITED STATES,
370 U.S. 294, 323. 

FOR THE REASONS SET OUT IN THIS OPINION, THE JUDGMENT OF THE
DISTRICT COURT IS AFFIRMED. 

                                  IT IS SO ORDERED. 

/1/ UNLESS OTHERWISE INDICATED, THE TERM " C& S" REFERS GENERICALLY
TO THE C& S SYSTEM OF BANKING ENTITIES, INCLUDING C& S NATIONAL AND ITS
MAJORITY OWNED AFFILIATES AND C& S HOLDING, BUT EXCLUDING THE 5-PERCENT
BANKS.  THE DEFENDANTS IN THIS SUIT//APPELLEES HERE--ARE C& S NATIONAL,
C& S HOLDING, SIX OF THE 5-PERCENT BANKS, AND TWO BANKS IN THE ATLANTA
AREA, C& S EMORY AND C& S EAST POINT, WHICH ARE SUBSIDIARIES OF C& S
HOLDING.  TAKEN TOGETHER, THESE WILL SOMETIMES BE CALLED THE "DEFENDANT
BANKS." 

/2/ 419 U.S. 893.  NOTICE OF APPEAL WAS FILED PRIOR TO THE EFFECTIVE
DATE OF THE ANTITRUST PROCEDURES AND PENALTIES ACT, PUB. L. NO. 93 -
528, SEC. 7, 88 STAT. 1710.  THE PROPOSED ACQUISITIONS WERE STAYED
AUTOMATICALLY BY THE FILING OF THE SUIT, 12 U.S.C. SEC. 1828
(C)(7)(A).  THE DISTRICT COURT CONTINUED THE STAY, AND IT HAS REMAINED
IN FORCE PENDING THIS DECISION. 

/3/ A 1929 AMENDMENT ALLOWED BRANCHING WITHIN THE HOME-OFFICE CITY
OF A BANK, BUT THIS WAS OF NO AID TO THE AMBITIONS OF C& S NATIONAL
OUTSIDE SAVANNAH. 

/4/ FOUNDED WITH C& S SPONSORSHIP WERE:  (1) THE SANDY SPRINGS BANK,
FULTON COUNTY (TWO OFFICES).  FOUNDED IN 1959 AND OPERATIONAL IN 1960
AS THE CITIZENS NATIONAL BANK OF SANDY SPRINGS, IT WAS CONVERTED IN
1969 FROM A NATIONAL TO A STATE-CHARTERED BANK AND ADOPTED THE NAME
CITIZENS AND SOUTHERN BANK OF SANDY SPRINGS.  (2) THE CHAMBLEE BANK, DE
KALB COUNTY.  FOUNDED IN 1960 AS THE CHAMBLEE NATIONAL BANK, IT WAS
CONVERTED TO A STATE-CHARTERED BANK IN 1969 AND ADOPTED THE NAME
CITIZENS AND SOUTHERN BANK OF CHAMBLEE.  (3) THE NORTH FULTON BANK,
FULTON COUNTY.  IT WAS FOUNDED IN 1967 AS THE CITIZENS AND SOUTHERN
BANK OF NORTH FULTON, A STATE-CHARTERED INSTITUTION.  (4) THE PARK
NATIONAL BANK, DE KALB COUNTY.  IT WAS FOUNDED IN 1967 AS THE CITIZENS
AND SOUTHERN PARK NATIONAL BANK.  (5) THE SOUTH DE KALB BANK, DE KALB
COUNTY (TWO OFFICES).  IT WAS FOUNDED AS THE CITIZENS AND SOUTHERN
SOUTH DE KALB BANK, A STATE-CHARTERED INSTITUTION, IN 1969. 

THE CITIZENS AND SOUTHERN BANK OF TUCKER (TWO OFFICES), IN DE KALB
COUNTY, WAS INDEPENDENTLY FOUNDED IN 1919, AS THE BANK OF TUCKER.  C& S
HOLDING ACQUIRED 5-PERCENT OWNERSHIP IN 1965, AND THE BANK THEN ADOPTED
ITS PRESENT NAME.  THIS BANK IS INVOLVED IN ONLY THE SHERMAN ACT PHASE
OF THE CASE.  ITS PROPOSED ACQUISITION BY C& S WAS FORBIDDEN BY THE
FDIC. 

/5/ SEE N. 17, INFRA.  THE INVESTIGATION WAS CONCERNED WITH SEC. 3
OF THE BANK HOLDING COMPANY ACT OF 1956, 70 STAT. 134, AS AMENDED ON
JULY 1, 1966, BY PUB. L. 89 - 485, SEC. 7, 80 STAT. 237, AND ON DEC.
31, 1970, BY PUB. L. 91 - 607, TIT. I, SEC. 102, 84 STAT. 1763.  12
U.S.C. SEC. 1842. 

/6/ THE ACQUISITIONS WERE TO BE MADE BY BANK SUBSIDIARIES OF C& S
HOLDING:  C& S EAST POINT, WHICH PROPOSED TO ACQUIRE THE SANDY SPRINGS
AND NORTH FULTON BANKS, AND C& S MORY, WHICH PROPOSED TO ACQUIRE THE
CHAMBLEE, PARK NATIONAL, SOUTH DE KALB, AND TUCKER BANKS.  THE FDIC WAS
THE RESPONSIBLE FEDERAL AGENCY BECAUSE EACH OF THE ACQUIRING BANKS IS A
"NONMEMBER (OF THE FEDERAL RESERVE SYSTEM) INSURED BANK."  12 U.S.C.
SEC. 1828(C)(2)(C). 

/7/ THE FDIC NOTED THAT THE INDEPENDENT TUCKER BANK HAD NOT BEEN IN
UNSOUND FINANCIAL CONDITION WHEN C& S ASSUMED DE FACTO CONTROL IN 1965,
AND THAT IT WOULD HAVE BEEN BETTER FOR COMPETITION IF C& S HAD INSTEAD
SPONSORED A NEW BANK IN THE COMMUNITY "JUST AS IT DID IN OTHER GROWING
BRANCHING LAWS." 

/8/ SEE THE APPENDIX TO THIS OPINION FOR THE DISTRICT COURT'S
STATISTICAL SUMMARY OF THE ATLANTA AREA'S BANKING MARKETS, C& S'S PLACE
IN THESE MARKETS, AND THE EFFECT OF THE PROPOSED ACQUISITIONS ON THE
MARKET-SHARE STATISTICS. 

/9/ THE COURT STATED: 

" THE GOVERNMENT CONTENDS THAT THE FOLLOWING ASPECTS OF THE
RELATIONSHIPS BETWEEN THE DEFENDANTS HAVE RESTRAINED INTERSTATE TRADE
AND COMMERCE: 

"1. THE ROUTINE AND SYSTEMATIC PRACTICE OF FURNISHING TO ONE ANOTHER
COMPREHENSIVE INFORMATIONAS TO PAST, PRESENT AND FUTURE COMPETITIVE
PRACTICES AND POLICIES WITH A PURPOSE OF ACHIEVING UNIFORMITY AMONG THE
DEFENDANTS; 

"2. THE PROVISION BY C& S NATIONAL TO THE FIVE PERCENT DEFENDANTS OF
VARIOUS MANUALS AND MEMORANDA; 

"3. THE PROVISION BY C& S NATIONAL TO THE FIV PERCENT DEFENDANTS OF
SUGGESTIONS AND ADVICE ON SUCH MATTERS AS RATES, HOURS OF OPERATION,
TYPES OF LOAN TO DISCOURAGE AND MINIMUM LOAN RATES.... 

" THE GOVERNMENT ALSO ASSERTS, AND THE RECORD SHOWS, THAT THE ADVICE
AND SUGGESTIONS OFFERED BY C& S NATIONAL ARE GENERALLY FOLLOWED. 

" THESE ACTIVITIES, HOWEVER, DO NOT AMOUNT TO COLLUSIVE PRICE
FIXING.  FOR EXAMPLE, THERE IS NO SUGGESTION THAT ANY ADVICE AS TO
RATES AMOUNTS TO MORE THAN AN EXPERT APPRAISAL OF A MARKET SITUATION
FROM THE POINT OF VIEW OF A LENDING INSTITUTION--A TYPE OF OPINION TO
WHICH A LENDIN INSTITUTION WOULD NATURALLY BE EXPECTED TO PAY GREAT
ATTENTION.... 

" THE PRACTICES INVOLVED HERE DO NOT CONFORM TO THE ACCEPTED
DEFINITION OR DESCRIPTION OF PER SE ANTITRUST VIOLATIONS WHERE NO
RESORT TO CONTEXT OR CIRCUMSTANCES IS REQUIRED (OR PERMITTED). 

        * * * * * 

" THERE IS NO EVIDENCE OF RECORD TO CONCLUDE THAT THE UTILIZATION BY
THE FIVE PERCENT DEFENDANT BANKS OF THE SERVICES OR INFORMATION
RECEIVED BY THEM FROM C& S NATIONAL OR C& S HOLDING WAS A RESULT OF ANY
TACIT OR EXPLICIT COMBINATIONS RATHER THAN THE NATURAL DEFERENCE OF THE
RECIPIENT TO INFORMATION FROM ONE WITH GREATER EXPERTISE OR BETTER
SOURCES.  IN EITHER CASE THERE IS THE FLOW OF INFORMATION AS TO RATES,
PRACTICES, ETC., WHICH THE GOVERNMENT APPARENTLY APPLAUDS OR AT LEAST
CONDONES IN A CORRESPONDENT BANKING RELATIONSHIP."  372 F.SUPP., AT
626, 627, AND 628. 

/10/ SEE APPENDIX TO THIS OPINION. 

/11/ THE COURT NOTED "THAT NO WITNESS (FOR EITHER THE GOVERNMENT OR
THE DEFENDANTS) TESTIFIED THAT THE PROPOSED MERGERS WOULD HAVE ANY
ADVERSE ECONOMIC OR COMPETITIVE IMPLICATIONS WHATEVER..."  372 F.SUPP.,
AT 638.  COMPETITORS OF THE SUBURBAN 5-PERCENT BANKS "EXPRESSED THE
VIEW THAT THE PROPOSED MERGERS WOULD HAVE NO EFFECT WHATSOEVER ON
COMPETITION AS IT RELATES TO THIRD PARTIES."  IBID.  THE COURT FOUND
"AS A FACT THAT THERE IS NO PRESENTLY EXISTING SUBSTANTIAL COMPETITION
BETWEEN THE FIVE PERCENT DEFENDANT BANKS AND C& S NATIONAL, OR INTER
SESE, OR WITH THIRD PARTIES, WHICH WOULD BE AFFECTED BY THE PROPOSED
MERGER."  ID., AT 642. 

IN THE INTERVAL BETWEEN THE TRIAL AND THE ANNOUNCEMENT OF THE
DISTRICT COURT'S OPINION, THE SUPREME COURT OF GEORGIA HAD RULED IN A
SEPARATE SUIT BROUGHT BY A GROUP OF INDEPENDENT SUBURBAN BANKS THAT C&
S WAS IN TECHNICAL VIOLATION OF THE STATE BANK HOLDING COMPANY LAW WITH
RESPECT TO THE 5-PERCENT BANKS IN THE ATLANTA SUBURBS.  ITS JUDGMENT
WAS GROUNDED ON THE FACT THAT, IN ADDITION TO THE 5-PERCENT STOCK
INTEREST DIRECTLY OWNED BY C& S HOLDING, SUBSTANTIAL NUMBERS OF SHARES
WERE OWNED BY C& S OFFICERS AND DIRECTORS.  THE STATE COURT ACCORDINGLY
DIRECTED THE GEORGIA BANKING COMMISSIONER TO FILE SUIT TO FORCE
DIVESTITURE OF EXCESS STOCK HOLDINGS BY THESE SHAREHOLDERS. 
INDEPENDENT BANKERS ASN.  V. DUNN, 230 GA. 345, 197 S. D. 2D 129
(1973), MODIFIED SUB NOM. CITIZENS & SOUTHERN NATIONAL BANK V.
INDEPENDENT BANKERS ASSN., 231 GA. 421, 202 S. E. 2D 78 (1973).  THE
DISTRICT COURT'S OPINION TOOK NOTICE OF THIS STATE-COURT JUDGMENT AND
CONCLUDED THAT IT WOULD NOT LEAD TO GENUINE COMPETITION AMONG THE 5
PERCENT BANKS OR BETWEEN THEM AND C& S. 372 F.SUPP., AT 643.  AFTER THE
DISTRICT COURT'S OPINION WAS ANNOUNCED, THE STATE BANKING COMMISSIONER,
ACTING PURSUANT TO THE STATE-COURT JUDGMENT, ORDERED C& S HOLDING TO
LIMIT ITS DIRECT AND INDIRECT INTEREST IN THE STOCK OF CORRESPONDENT
ASSOCIATE BANKS TO 5 PERCENT AND ORDERED C& S TO "TERMINATE ANY DIRECT
OR INDIRECT SUPERVISION OF THE...FIVE PERCENT BANKS BEYOND THAT WHICH
IS AVAILABLE FROM THE CITIZENSS AND SOUTHERN NATIONAL BANK OR THE
CITIZENS AND SOUTHERN HOLDING COMPANY TO ANY BANK THAT WISHES TO ENTER
INTO A CORRESPONDENT RELATIONSHIP WITH SUCH BANK OR HOLDING COMPANY." 
ON JUNE 3, 1974, THE DISTRICT COURT AMENDED ITS OPINION NUNC PRO TUNC
TO FIND THAT THE BANKING COMMISSIONER'S "ORDER DOES NOT CHANGE THE
UNDERLYING BASIS OF THE COURT'S DECISION THAT THE PROPOSED MERGERS WILL
NOT SUBSTANTIALLY LESSEN COMPETITION."  ID., AT 643 N. 8. 

/12/ PURSUANT TO 12 U.S.C. SEC. 1828 (C)(7)(B), REFERRING TO 12
U.S.C. SEC. 1828 (C)(5)(B), BANK MERGERS ARE MADE SUBJECT TO CLAYTON
ACT STANDARDS UNLESS "THE ANTICOMPETITIVE EFFECTS OF THE PROPOSED
TRANSACTION ARE CLEARLY OUTWEIGHTED IN THE PUBLIC INTEREST BY THE
PROBABLE EFFECT OF THE TRANSACTION IN MEETING THE CONVENIENCE AND NEEDS
OF THE COMMUNITY TO BE SERVED."  HENCE, IN BANK MERGER CASES BROUGHT
UNDER THE CLAYTON ACT, THERE IS A "CONVENIENCE AND NEEDS' DEFENSE" THAT
"COMES INTO PLAY ONLY AFTER A DISTRICT COURT HAS MADE A DE NOVO
DETERMINATION OF THE STATUS OF A BANK MERGER UNDER THE CLAYTON ACT." 
UNITED STATES V. MARINE BANCORPORATION, 418 U.S. 602, 626.  SEE ALSO
UNITED STATES V. THIRD NATIONAL BANK IN NASHVILLE, 390 U.S. 171 (1968);
UNITED STATES V. FIRST CITY NATIONAL BANK OF HOUSTON, 386 U.S. 361
(1967).  BECAUSE OF ITS DISPOSITION OF THE CASE, THE DISTRICT COURT DID
NOT REACH THIS ADDITIONAL DEFENSE WHICH HAD BEEN ASSERTED BY C& S. 

/13/ SEE N. 12, SUPRA. 

/14/ IT SHALL BE UNLAWFUL, EXCEPT WITH THE PRIOR APPROVAL OF THE
BOARD, (1) FOR ANY ACTION TO BE TAKEN THAT CAUSES ANY COMPANY TO BECOME
A BANK HOLDING COMPANY; (2) FOR ANY ACTION TO BE TAKEN THAT CAUSES A
BANK TO BECOME A SUBSIDIARY OF A BANK HOLDING COMPANY; (3) FOR ANY BANK
HOLDING COMPANY TO ACQUIRE DIRECT OR INDIRECT OWNERSHIP OR CONTROL OF
ANY VOTING SHARES OF ANY BANK IF, AFTER SUCH ACQUISITION, SUCH COMPANY
WILL DIRECTLY OR INDIRECTLY OWN OR CONTROL MORE THAN 5 PER CENTUM OF
THE VOTING SHARES OF SUCH BANK; (4) FOR ANY BANK HOLDING COMPANY OR
SUBSIDIARY THEREOF, OTHER THAN A BANK, TO ACQUIRE ALL OR SUBSTANTIALLY
ALL OF THE ASSETS OF A BANK; OR (5) FOR ANY BANK HOLDING COMPANY TO
MERGE OR CONSOLIDATE WITH ANY OTHER BANK HOLDING COMPANY..."  12 U.S.C.
SEC. 1842 (A). 

/15/ PRIOR TO THE AMENDMENTS OF JULY 1, 1966, PUB. L. 89 - 485, SEC.
7, 80 STAT. 237, PRIOR APPROVAL OF THE BOARD WAS NOT REQUIRED FOR
CAUSING A BANK TO BECOME S SUBSIDIARY OF A BANK HOLDING COMPANY.  IN
ADDITION TO ADDING THIS REQUIREMENT, THE 1966 AMENDMENTS BROADENED THE
DEFINITION OF A SUBSIDIARY--FROM A COMPANY IN WHICH A BANK HOLDING
COMPANY "OWNS)" 25 PERCENT OF THE VOTING SHARES TO A COMPANY IN WHICH A
BANK HOLDING COMPANY "DIRECTLY OR INDIRECTLY OWNS) OR CONTROLS)"  THIS
PERCENTAGE SHARE.  COMPARE SEC. 4 OF THE 1966 AMENDMENTS, 80 STAT. 236,
WITH SEC. 2 (D) OF THE BANK HOLDING OCMPANY ACT OF 1956, 70 STAT. 133. 
THE PROVISION IS NOW CODIFIED AT 12 U.S.C. SEC. 1841 (D)(1).  THE
DEFINITION OF SUBSIDIARY HAS ALSO INCLUDED, FROM THE OUTSET OF THE ACT,
"ANY COMPANY THE ELECTION OF A MAJORITY OF WHOSE DIRECTORS IS
CONTROLLED IN ANY MANNER" BY A BANK HOLDING COMPANY.  12 U.S.C. SEC.
1841 (D)(2).  THE AMENDMENTS OF DECEMBER 31, 1970, PUB. L. 91 - 607,
SEC. 101 (D), 84 STAT. 1763, FURTHER ENLARGED THE DEFINITION OF
SUBSIDIARY TO INCLUDE "ANY COMPANY WITH RESPECT TO THE MANAGEMENT OR
POLICIES OF WHICH SUCH BANK HOLDING COMPANY HAS THE POWER, FIRECTLY OR
INDIRECTLY, TO EXERCISE A CONTROLLING INFLUENCE, AS DETERMINED BY THE
BOARD, AFTER NOTICE AND OPPORTUNITY FOR HEARING."  12 U.S.C. SEC. 1841
(D)(3).     /16/ SECTION 11 OF THE 1966 AMENDMENTS, PUB. L. 89 - 485,
80 STAT. 240.  AS PRESENTLY IN FORCE, 12 U.S.C. SEC. 1849, THE
PROVISION (WITH SUBSECTION HEADINGS OMITTED) READS: 

"(A) NOTHING HEREIN CONTAINED SHALL BE INTERPRETED OR CONSTRUED AS
APPROVING ANY ACT, ACTION, OR CONDUCT WHICH IS OR HAS BEEN OR MAY BE IN
VIOLATIONOF EXISTING LAW, NOR SHALL ANYTHING HEREIN CONTAINED
CONSTITUTE A DEFENSE TO ANY ACTION, SUIT, OR PROCEEDING PENDING OR
HEREAFTER INSTITUTED ON ACCOUNT OF ANY PROHIBITED ANTITRUST OR
MONOPOLISTIC ACT, ACTION, OR CONDUCT, EXCEPT AS SPECIFICALLY PROVIDED
IN THIS SECTION.     "(B) THE BOARD SHALL IMMEDIATELY NOTIFY THE
ATTORNEY GENERAL OF ANY APPROVAL BY IT PURSUANT TO SECTION 1842 OF THIS
TITLE OF A PROPOSED ACQUISITION, MERGER, OR CONSOLIDATION TRANSACTION,
AND SUCH TRANSACTION MAY NOT BE CONSUMMATED BEFORE THE THIRTIETH
CALENDAR DAY AFTER THE DATE OF APPROVAL BY THE BOARD.  ANY ACTION
BROUGHT UNDER THE ANTITRUST LAWS ARISING OUT OF AN ACQUISITION, MERGER,
OR CONSOLIDATION TRANSACTION APPROVED UNDER SECTION 1842 OF THIS TITLE
SHALL BE COMMENCED WITHIN SUCH THIRTY-DAY PERIOD.  THE COMMENCEMENT OF
SUCH AN ACTION SHALL STAY THE EFFECTIVENESS OF THE BOARD'S APPROVAL
UNLESS THE COURT SHALL OTHERWISE SPECIFICALLY ORDER.  IN ANY SUCH
ACTION, THE COURT SHALL REVIEW DE NOVO THE ISSUES PRESENTED.  IN ANY
JUDICIAL PROCEEDING ATTACKING ANY ACQUISITION, MERGER, OR CONSOLIDATION
TRANSACTION APPROVED PURSUANT TO SECTION 1842 OF THIS TITLE ON THE
GROUND THAT SUCH TRANSACTION ALONE AND OF ITSELF CONSTITUTED A
VIOLATION OF ANY ANTITRUST LAWS OTHER THAN SEC. 2 OF TITLE 15, THE
STANDARDS APPLIED BY THE COURT SHALL BE IDENTICAL WITH THOSE THAT THE
BOARD IS DIRECTED TO APPLY UNDER SECTION 1842 OF THIS TITLE.  UPON THE
CONSUMMATION OF AN ACQUISITION, MERGER, OR CONSOLIDATION TRANSACTION
APPROVED UNDER SECTION 1842 OF THIS TITLE IN COMPLIANCE WITH THIS
CHAPTER AND AFTER THE TERMINATION OF ANY ANTITRUST LITIGATION COMMENCED
WITHIN THE PERIOD PRESCRIBED IN THIS SECTION, OR UPON THE TERMINATION
OF SUCH PERIOD IF NO SUCH LITIGATION IS COMMENCED THEREIN, THE
TRANSACTION MAY NOT THEREAFTER BE ATTACKED IN ANY JUDICIAL PROCEEDING
ON THE GROUND THAT IT ALONE AND OF ITSELF CONSTITUTED A VIOLATION OF
ANY ANTITRUST LAWS OTHER THAN SECTION 2 OF TITLE 15, BUT NOTHING IN
THIS CHAPTER SHALL EXEMPT ANY BANK HOLDING COMPANY INVOLVED IN SUCH A
TRANSACTION FROM COMPLYING WITH THE ANTITRUST LAWS AFTER THE
CONSUMMATION OF SUCH TRANSACTION. 

"(C) IN ANY ACTION BROUGHT UNDER THE ANTITRUST LAWS ARISING OUT OF
ANY ACQUISITION , MERGER, OR CONSOLIDATION TRANSACTION APPROVED BY THE
BOARD UNDER SECTION 1842 OF THIS TITLE, THE BOARD AND ANY STATE BANKING
SUPERVISORY AGENCY HAVING JURISDICTION WITHIN THE STATE INVOLVED, MAY
APPEAR AS A PARTY OF ITS OWN MOTION AND AS OF RIGHT, AND BE REPRESENTED
BY ITS COUNSEL. 

"(D) ANY ACQUISITION, MERGER, OR CONSOLIDATION OF THE KIND DESCRIBED
IN SECTION 1842 (A) OF THIS TITLE WHICH WAS CONSUMMATED AT ANY TIME
PRIOR OR SUBSEQUENT TO MAY 9, 1956, AND AS TO WHICH NO LITIGATION WAS
INITIATED BY THE ATTORNEY GENERAL PRIOR TO JULY 1, 1966, SHALL BE
CONCLUSIVELY PRESUMED NOT TO HAVE BEEN IN VIOLATION OF ANY ANTITRUST
LAWS OTHER THAN SECTION 2 OF TITLE 15. 

"(E) ANY COURT HAVING PENDING BEFORE IT ON OR AFTER JULY 1, 1966,
ANY LITIGATION INITIATED UNDER THE ANTITRUST LAWS BY THE ATTORNEY
GENERAL WITH RESPECT TO ANY ACQUISITION, MERGER, OR CONSOLIDATION OF
THE KIND DESCRIBED IN SECTION 1842 (A) OF THIS TITLE SHALL APPLY THE
SUBSTANTIVE RULE OF LAW SET FORTH IN SECTION 1842 OF THIS TITLE. 

"(F) FOR THE PURPOSES OF THIS SECTION, THE TERM 'ANTITRUST LAWS'
MEANS THE ACT OF JULY 2, 1890 (THE SHERMAN ANTITRUST ACT), THE ACT OF
OCTOBER 15, 1914 (THE CLAYTON ACT), AND ANY OTHER ACTS IN PARI
MATERIA." 

/17/ THE SECRETARY TO THE FEDERAL RESERVE BOARD DESCRIBED THE
INVESTIGATION AND THE 1968 "UNDERSTANDING" IN A 1972 LETTER TO THE
JUSTICE DEPARTMENT: 

" THE FACT FINDING INQUIRY UNDERTAKEN BY BOARD STAFF INTO THE
RELATIONSHIP BETWEEN CITIZENS & SOUTHERN AND THE OTHER BANKING
INSTITUTIONS REFERRED TO WAS BEGUN IN 1966 AND CONTINUED INTO 1968. 
THE PRINCIPAL FOCUS OF THE INQUIRY CONCERNED ESSENTIALLY TWO QUESTIONS:
(1) WHETHER CITIZENS& SOUTHERN HAD UNLAWFULLY ACQUIRED A DIRECT OR
INDIRECT STOCK OWNERSHIP IN THESE BANKING INSTITUTIONS IN EXCESS OF 5
PER CENT WITHOUT FIRST HAVING SECURED THE REQUISITE PRIOR BOARD
APPROVAL; AND (2) WHETHER THE BANKING INSTITUTIONS HAD UNLAWFULLY
BECOME SUBSIDIARIES OF CITIZENS & SOUTHERN BY VIRTUE OF THE ELECTION OF
DIRECTORS WITHOUT FIRST HAVING RECEIVED THE REQUISITE PRIOR BOARD
APPROVAL.  THE INQUIRY AROSE IN 1966 OUT OF INFORMATION CONTAINED IN
CITIZENS & SOUTHERN'S REGISTRATION STATEMENT FILED WITH THE BOARD AND
IN 1968 AS A RESULT OF INFORMATION SUPPLIED BY THE COMPTROLLER OF THE
CURRENCY IN CONNECTION WITH THE MERGER OF THE CITIZENS AND SOUTHERN
NATIONAL BANK AND THE CITIZENS AND SOUTHERN BANK OF AUGUSTA.  THE
INQUIRY REFERRED TO WAS NOT INITIATED AS A RESULT OF ANY APPLICATION
FILED WITH THE BOARD FOR APPROVAL OF AN ACQUISITION, MERGER, OR
CONSOLIDATION TRANAXTION UNDER SECTION 3 OF THE BANK HOLDING COMPANY
ACT. 

* * * * * 

" THE BOARD OF GOVERNORS DID NOT ISSUE ANY ORDER APPROVING THE
RELATIONSHIPS BETWEEN CITIZENS & SOUTHERN AND THE OTHER BANKING
INSTITUTIONS UNDER SECTION 3 OF THE BANK HOLDING COMPANY ACT. 

        * * * * * 

" THERE WAS NO DETERMINATION MADE THAT APPROVAL OF THE BOARD UNDER
SOUTHERN TO RETAIN AN OWNERSHIP INTEREST OF 5 PER CENT OR LESS IN THE
BANKING INSTITUTIONS REFERRED TO OR TO MAINTAIN THE RELATIONSHIPS WITH
THOSE BANKS IN CIRCUMSTANCES WHERE CITIZENS & SOUTHERN DID NOT ELECT A
JAJORITY OF THE DIRECTORS OF ANY SUCH BANK.  THERE WAS AN UNDERSTANDING
REACHED BETWEEN MEMBERS OF THE BOARD'S STAFF AND REPRESENTATIVES OF
CITIZENS & SOUTHERN THAT IN THOSE CASES WHERE CITIZENS & SOUTHERN
PURCHASED 5 PER CENT OR LESS OF THE STOCK OF A BANK, IN SOME INSTANCES
FURNISHING A PRINCIPAL OPERATING OFFICER FOR SUCH BANK, AS WELL AS
OTHER EMPLOYEE BENEFITS, CITIZENS & SOUTHERN WOULD NOT BE DEEMED TO
HAVE CONTROL OF A MAJORITY OF THE DIRECTORS OF SUCH BANK ON THESE FACTS
ALONE.  FURTHER, WHERE THE FOREGOING CIRCUMSTANCES EXISTED AND WHERE
CONTROL OF ADDITIONAL SHARES WAS PURCHASED BY THE BANK'S EXECUTIVE
OFFICER, CONTROL OF SUCH SHARES PURCHASED WOULD NOT BE ATTRIBUTED TO
CITIZENS & SOUTHERN SO LON AS CITIZENS & SOUTHERN DID NOT FINANCE THE
PURCHASE OF SUCH SHARES, DIRECTLY OR INDIRECTLY.  FINALLY, IT WAS
UNDERSTOOD THAT EVEN THOUGH CITIZENS & SOUTHERN WAS RESPONSIBLE,
DIRECTLY OR INDIRECTLY, IN PLACING ONE OR TWO DIRECTORS ON THE BOARDS
OF SUCH BANKS, IF THAT NUMBER DID NOT CONSTITUTE A MAJORITY OF
DIRECTORS OF SUCH BANK, THE BOARD'S STAFF WOULD NOT CONSIDER THAT
CITIZENS & SOUTHERN COULD REASONABLY BE HELD TO HAVE CONTROL OF A
MAJORITY OF THE DIRECTORS OF SUCH BANK." 

/18/ SEE N. 15, SUPRA. 

/19/ THE GRANDFATHER PROVISION CREATES A CONCLUSIVE PRESUMPTION OF
COMPLIANCE WITH THE ANTITRUST LAWS, BUT NOT NECESSARILY OF COMPLIANCE
WITH THE PROVISIONS OF THE BANK HOLDING COMPANY ACT.  SEE 12 U.S.C.
SEC. 1849 (F). 

/20/ IF THE CORRESPONDENT ASSOCIATE PROGRAM HAD RECEIVED FORMAL
BOARD APPROVAL, ANY ANTITRUST IMMUNITY CREATED BY THE MACHINERY IN SEC.
1849 (B) COULD, OF COURSE, HAVE EXTENDED ONLY TO THOSE FEATURES OF THE
PROGRAM CLEARLY AND EXPRESSLY ENCOMPASSED BY THE APPROVAL ORDER.  BUT
SEC. 1849 (D) APPLIES EVEN WHERE, AS HERE, THERE HAS BEEN NO APPROVAL
ORDER.  IF THE PROVISION WERE CONSTRUED TO COVER ONLY TRANSACTIONS
ACTUALLY VIOLATIVE OF SEC. 1842 (A), A COURT APPLYING THE PROVISION
WOULD FACE THE DAUNTING--AND QUITE SENSELESS--TASK OF DISSECTING A
COMPLICATED, INTEGRATED TRANSACTION, SUCH AS THE FORMATION OF A DE
FACTO BRANCH, INTO THOSE COMPONENTS WHICH DID AND THOSE WHICH DID NOT
REQUIRE PRIOR APPROVAL OF THE BOARD. 

/21/ THE TUCKER BANK, WHICH WAS NOT FOUNDED AS A NEW BANK BY C& S,
COMES WITHIN THE COVERAGE OF THE GRANDFATER PROVISION, AS EXPLAINED IN
THE PREVIOUS SECTION.  DE FACTO BRANCHING THROUGH THE DE FACTO
"ACQUISITION" OF PRE-EXISTING BANKS MIGHT RAISE QUESTIONS UNDER THE
SHERMAN ACT CONSIDERABLY DIFFERENT FROM THOSE PRESENTED BY THE C& S
PRACTICE OF DE FACTO BRANCHING THROUGH FOUNDING NEW BANKS. 

/22/ SEE GENERALLY M. MAYER, THE BANKERS 83 - 91 (1974). 

/23/ AUSTIN & SOLOMON, A NEW ANTITRUST PROBLEM:  VERTICAL
INTEGRATION IN CORRESPONDENT BANKING, 122 U.PA. L.REV.  366, 367 - 368
(1973). 

/24/ ID., AT 367 - 371.  ON THE VARIETIES OF "SERVICE PACKAGES" TO
BE FOUND IN CORRESPONDENT BANKING, SEE ALSO KNIGHT, CORRESPONDENT
BANKING, PART I:  BALANCES AND SERVICES, FED. RESERVE BANK OF KANSAS
CITY MONTHLY REVIEW (NOV. 1970), AND KNIGHT, CORRESPONDENT BANKING,
PART II:  LOAN PARTICIPATION AND FUND FLOWS, FED. RESERVE BANK OF
KANSAS CITY MONTHLY REVIEW (DEC. 1970); SUCOMMITTEE ON DOMESTIC FINANCE
OF THE HOUSE COMMITTEE ON BANKING AND CURRENCY, 88TH CONG., 2D SESS., A
REPORT ON THE CORRESPONDENT BANKING SYSTEM (COMM. PRINT DEC. 1964), AND
CORRESPONDENT RELATIONS:  A SURVEY OF BANKER OPINION (COMM. PRINT OCT.
1964); NADLER, THREE SCORE YEARS OF CORRESPONDENT BANKING, BANKING,
JULY 1968, PP. 54 - 55; 1970 CORRESPONDENT BANKING SURVEY IN AM.
BANKER, DEC. 18, 1970, PP. 8 - 71. 

/25/ ALSO, OF COURSE, C& S OWNS 5 PERCENT OF THE STOCK IN THESE BANK
-NOT A COMMON FACET OF CORRESPONDENT BANKING.  BUT THE GOVERNMENT
NEITHER CHALLENGES C& S'S 5-PERCENT OWNERSHIP, AS SUCH, NOR SUGGESTS
THAT IT AGGRAVATES THE ALLEGED ANTITRUST PROBLEMS. 

/26/ THIS CASE DOES NOT REQUIRE US TO EXPLORE THE CONCEIVABLE
ANTITRUST PROBLEMS RAISED BY CORRESPONDENT BANKING IN ALL CIRCUMSTANCES
AND IN ALL ITS MANY FORMS.  WE DEAL HERE SOLELY WITH THE FOUNDING AND
MAINTENANCE OF NEW DE FACTO BRANCH BANKS IN THE CONTEXT OF A STATE BAN
ON DE JURE BRANCHING. 

/27/ BRIEF FOR THE UNITED STATES 15 - 16, FILED IN NO. 73 - 38, O.T.
1973, UNITED STATES V. MARINE BANCORPORATION (CITATIONS TO RECORD
OMITTED). 

/28/ ID., AT 16 AND 17. 

/29/ THE BRIEF NOTED WITH APPROVAL AN EXAMPLE WHERE THE SPONSORED
BANK HAD, ACCORDING TO STATE BANKING AUTHORITIES, BECOME A "'SATELITE'"
OF THE PARENT BANK.  ID., AT 16 N. 16. 

/30/ THE BANKING BUSINESS IS, OF COURSE, RIDDLED WITH STATE AND
FEDERAL REGULATORY BARRIERS TO ENTRY.  SEE UNITED STATES V. MARINE
BANCORPORATION, 418 U.S., AT 628 - 629.  BUT MOST OF THESE BARRIERS--E
.G., CHARTERING REQUIREMENTS--AT LEAST ARGUABLY SERVE THE OVERRIDING
PUBLIC INTEREST IN MAINTAINING CUSTOMER CONFIDENCE IN THE INDUSTRY AS A
WHOLE BY ASSURING ADEQUATE FINANCIAL STABILITY AND RESPONSIBLE
MANAGEMENT FOR ALL BANKS.  ANTIBRANCHING LAWS, ON THE OTHER HAND, ARE
NOW WIDELY RECOGNIZED AS A SIMPLE DEVICE TO PROTECT OUTLYING UNIT BANKS
FROM THE RIGORS OF REGIONAL COMPETITION.  SEE REPORT, PRESIDENT'S
COMMISSION ON FINANCIAL STRUCTURE AND REGULATION 59 - 63, 113 (1971);
NOTE, BANK CHARTER, BRANCHING, HOLDING COMPANY AND MERGER LAWS:
COMPETITION FRUSTRATED, 71 YALE L.J. 502, 515 - 516 (1962); SMITH &
GREENSPUN, STRUCTURAL LIMITATIONS ON BANK COMPETITION, 32 LAW &
CONTEMP.  PROB.  40, 45 - 46 (1967); COMMENT, BANK BRANCHING IN
WASHINGTON:  A NEED FOR REAPPRAISAL, 48 WASH. L.REV.  611 (1973);
BAKER, STATE BRANCH BANK BARRIERS AND FUTURE SHOCK--WILL THE WALLS COME
TUMBLING DOWN?, 91 BANKING L.J. 119 (1974).  SEE ALSO UNITED STATES V.
MARINE BANCORPORATION, SUPRA, AT 612 N. 8. 

/31/ SEE APPENDIX TO THIS OPINION. 

/32/ IN THE ENTIRE HISTORY OF C& S'S 5-PERCENT PROGRAM, ONLY THE
STONE MOUNTAIN BANK TERMINATED ITS RELATIONSHIP WITH C& S. THE RECORD
SHOWS THAT THAT BANK WAS NOT SPONSORED BY C& S, THAT A LARGE AMOUNT OF
THE STOCK REMAINED IN THE HANDS OF A FAMILY HOSTILE TO C& S, THAT THE
BANK'S SHAREHOLDERS NEVER INTENDED TO MERGE WITH C& S, AND THAT THE
BANK'S BOARD OF DIRECTORS RESISTED INTRODUCTION OF C& S BANKING
METHODS.  NONE OF THESE FACTORS EXISTS WITH RESPECT TO THE BANKS AT
ISSUE IN THE PRESENT CASE. 

IT IS TRUE THAT C& S HAS RECENTLY BEEN ORDERED BY THE STATE BANKING
COMMISSIONER TO TRIM BACK ITS PERCENTAGE OWNERSHIP OF THE SUBURBAN
BANKS AND TO MODIFY, IN WAYS NOT YET FULLY CLEAR, ITS "SUPERVISION" OF
THOSE BANKS.  SEE N. 11, SUPRA.  BUT THE DISTRICT COURT CONSIDERED THIS
DEVELOPMENT AND CONCLUDED THAT IT WOULD NOT LEAD TO TRUE COMPETITION
AMONG THE DEFENDANT BANKS.  THE COURT EXPLICITYLY FOUND THAT THE
CHANGES ORDERED WOULD NOT AFFECT THE BONDS OF INTERBANK CONSULTATION
AND COOPERATION WHICH ARE AT THE HEART OF THE CORRESPONDENT ASSOCIATE
PROGRAM.  372 F.SUPP., AT 638, 643, AND N. 8. 

        APPENDIX TO OPINION OF THE COURT 

THE DISTRICT COURT SUMMARIZED THE STRUCTURE OF VARIOUS BANKING
MARKETS IN THE ATLANTA AREA, AND THE STATISTICAL EFFECTS OF THE
PROPOSED ACQUISITIONS, IN THE FOLLOWING WAY.  372 F.SUPP., AT 629 -
632:

        DE KALB COUNTY 

TREATING C& S NATIONAL, C& S EMORY AND C& S DE KALB AS ONE BANKING
ORGANIZATION, THERE ARE 19 COMMERCIAL BANKING ORGANIZATIONS OPERATING
OFFICES IN DE KALB COUNTY.  IN TERMS OF TOTAL DEPOSITS AND TOTAL
INDIVIDUAL, PARTNERSHIP AND CORPORATION (" IPC") DEMAND DEPOSITS HELD
BY ALL BANKING OFFICES LOCATED IN DE KALB COUNTY, THE TOP 4 BANKS,
RESPECTIVELY, ARE C& S (OFFICES OF C& S NATIONAL IN DE KALB COUNTY, C&
S EMORY AND C& S DE KALB), FIRST NATIONAL BANK OF ATLANTA, TRUST
COMPANY OF GEORGIA, AND FULTON NATIONAL BANK.  IN TERMS OF OUTSTANDING
LOANS, THE TOP 4 BANKS ARE C& S (OFFICES OF C& S NATIONAL IN DE KALB
COUNTY, C& S EMORY AND C& S DE KALB), TRUST COMPANY OF GEORGIA, TUCKER
AND FULTON NATIONAL BANK.  THE SHARES OF TOTAL DEPOSITS, TOTAL LOANS
AND TOTAL IPC DEMAND DEPOSITS ACCOUNTED FOR BY THE FOUR LARGEST BANKS
ARE AS FOLLOWS:     (TABLE OMITTED PAGE 123) 

CHAMBLEE, PARK NATIONAL AND SOUTH DE KALB, ALL OF WHOSE BANKING
OFFICES ARE LOCATED IN DE KALB COUNTY, ACCOUNT FOR THE FOLLOWING SHARES
OF TOTAL DEPOSITS, TOTAL LOANS AND TOTAL IPC DEMAND DEPOSITS HELD BY
ALL BANKING OFFICES LOCATED IN DE KALB COUNTY: 

(TABLE OMITTED PAGE 124).  DEPENDING ON THE UNIT OF MEASUREMENT,
CHAMBLEE IS THE THIRD OR FOURTH LARGEST BANK HEADQUARTERED IN DE KALB
COUNTY. 

IF THE PROPOSED MERGERS WERE APPROVED, THE C& S SYSTEM (WHICH WOULD
INCLUDE OFFICES OF C& S NATIONAL AND SOUTH DE KALB) WOULD ACCOUNT FOR
34.5% OF THE TOTAL DEPOSITS OF ALL THE BANKING OFFICES LOCATED IN DE
KALB COUNTY, 38.2% OF THE TOTAL LOANS AND 30.9% OF THE TOTAL IPC DEMAND
DEPOSITS.  C& S WOULD ALSO BE ACQUIRING THE THIRD (OR FOURTH) LARGEST
BANK HEADQUARTERED IN DE KALB COUNTY. 

IF THE PROPOSED MERGERS WERE APPROVED, THE FOUR LARGEST BANKS WOULD
ACCOUNT FOR THE FOLLOWING SHARES OF THE DE KALB COUNTY MARKET: 

(TABLE OMITTED PAGE 124.) 

THUS, IF THE PROPOSED MERGERS WERE APPROVED, THE C& S SYSTEM'S SHARE
OF TOTAL DEPOSITS, FOR EXAMPLE, WOULD INCREASE FROM ABOUT 24% TO 34%,
OR AN INCREASE OF ABOUT 40%.  THE SHARE OF TOTAL DEPOSITS ACCOUNTED FOR
BY THE TOP 4 BANKS WOULD INCREASE FROM ABOUT 63% TO 73%, WHILE THAT OF
THE TOP 2 AND TOP 3 BANKS WOULD INCREASE FROM 38% TO 49% AND FROM 52%
TO 62%, RESPECTIVELY. 

        NORTH FULTON COUNTY 

THERE ARE NINE COMMERCIAL BANKS OPERATING OFFICES IN NORTH FULTON
COUNTY.  IN TERMS OF TOTAL DEPOSITS AND TOTAL IPC DEMAND DEPOSITS HELD
BY ALL BANKING OFFICES LOCATED IN NORTH FULTON COUNTY, THE TOP 4 BANKS,
RESPECTIVELY, ARE SANDY SPRINGS, ROSWELL BANK, FULTON EXCHANGE BANK AND
NORTH FULTON.  ON JUNE 30, 1970, HOWEVER, THERE WERE ONLY FIVE BANKS
OPERATING OFFICES IN NORTH FULTON COUNTY:  THE FOUR BANKS JUST
MENTIONED AND TRUST COMPANY OF GEORGIA BANK OF SANDY SPRINGS, WHICH IS
NOW A BRANCH OF TRUST COMPANY OF GEORGIA.  THE SHARES OF TOTAL DEPOSITS
AND IPC DEMAND DEPOSITS ACCOUNTED FOR BY THE FOUR LARGEST BANKS ARE AS
FOLLOWS: 

(TABLE OMITTED PAGE 125). 

AS OF JUNE 30, 1972, THE NORTH SPRINGS OFFICE OF C& S EAST POINT
ACCOUNTED FOR 1.7% OF TOTAL IPC DEMAND DEPOSITS HELD BY ALL BANKING
OFFICES LOCATED IN NORTH FULTON COUNTY. 

AS OF JUNE 30, 1972, SANDY SPRINGS AND NORTH FULTON ACCOUNTED FOR
36.4% AND 10.2%, RESPECTIVELY, OF TOTAL IPC DEMAND DEPOSITS HELD BY ALL
BANKING OFFICES LOCATED IN NORTH FULTON COUNTY.  AS OF JUNE 30, 1970,
THEY ACCOUNTED FOR 34.4% AND 11.7%, RESPECTIVELY, OF TOTAL DEPOSITS
HELD BY ALL COMMERCIAL BANKING OFFICES LOCATED IN NORTH FULTON COUNTY. 

IF THE PROPOSED MERGERS WERE APPROVED, THE C& S SYSTEM (WHICH WOULD
INCLUDE C& S EAST POINT'S NORTH SPRINGS OFFICE, NORTH FULTON AND SANDY
SPRINGS) WOULD ACCOUNT FOR 48.3% OF THE TOTAL IPC DEMAND DEPOSITS HELD
BY ALL COMMERCIAL BANKING OFFICES LOCATED IN NORTH FULTON COUNTY AND
THE FOUR LARGEST BANKS WOULD ACCOUNT FOR THE FOLLOWING SHARES OF IPC
DEMAND DEPOSITS IN NORTH FULTON COUNTY: 

(TABLE OMITTED PAGE 126). 

THUS, IF THE PROPOSED MERGERS WERE APPROVED, THE C& S SYSTEM'S /1/
SHARE OF TOTAL IPC DEMAND DEPOSITS HELD BY ALL BANKING OFFICES LOCATED
IN NORTH FULTON COUNTY WOULD INCREASE FROM 1.7% TO 48.3%, AND THE C& S
SYSTEM'S SHARE IN THIS AREA WOULD BE TWICE THAT OF THE SEOND LARGEST
BANKING ORGANIZATION, THE ROSWELL BANK.  TWO OF THE FOUR LARGEST BANKS
IN THE AREA WOULD BECOME PART OF THE ATLANTA AREA'S LARGEST BANKING
ORGANIZATION.  IN ADDITION, THE SHARE OF TOTAL IPC DEMAND DEPOSITS
ACCOUNTED FOR TBY THE TOP 4 BANKS WOULD INCREASE FROM 80.3% TO 92.0%,
WHILE THE SHARES OF THE TOP 2 AND TOP 3 BANKS WOULD INCREASE FROM 57.8%
TO 69.7% AND FROM 70.1% TO 82.0%, RESPECTIVELY. 

     FULTON COUNTY 

TREATING C& S NATIONAL AND C& S EAST POINT AS ONE BANKING
ORGANIZATION, THERE ARE 18 COMMERCIAL BANKING ORGANIZATIONS OPERATING
OFFICES IN FULTON COUNTY.  IN TERMS OF TOTAL LOANS, DEPOSITS AND IPC
DEMAND DEPOSITS HELD BY ALL BANKING OFFICES LOCATED IN FULTON COUNTY,
THE TOP 4 BANKS, RESPECTIVELY, ARE C& S (OFFICES OF C& S NATIONAL IN
FULTON COUNTY AND C& S EAST POINT), FIRST NATIONAL BANK OF ATLANTA,
TRUST COMPANY OF GEORGIA AND FULTON NATIONAL BANK.  THE SHARES OF TOTAL
LOANS, DEPOSITS AND IPC DEMAND DEPOSITS ACCOUNTED FOR BY THE FOUR
LARGEST BANKS ARE AS FOLLOWS:  /2/ 

(TABLE OMITTED PAGE 127). 

C& S (OFFICES OF C& S NATIONAL IN FULTON COUNTY AND C& S EAST POINT)
ACCOUNTS FOR THE FOLLOWING SHARES OF TOTAL LOANS, DEPOSITS AND IPC
DEMAND DEPOSITS HELD BY ALL BANKING OFFICES LOCATED IN FULTON COUNTY: 

(TABLE OMITTED PAGE 120). 

SANDY SPRINGS AND NORTH FULTON, BOTH OF WHOSE BANKING OFFICES ARE
LOCATED IN FULTON COUNTY, ACCOUNT FOR THE FOLLOWING SHARES OF TOTAL
LOANS, DEPOSITS AND IPC DEMAND DEPOSITS HELD BY ALL BANKING OFFICES
LOCATED IN FULTON COUNTY: 

(TABLE OMITTED PAGE 127).  DEPENDING ON THE UNIT OF MEASUREMENT,
SANDY SPRINGS IS THE EIGHTH OR NINTH LARGEST BANKING ORGANIZATION IN
FULTON COUNTY. 

IF THE PROPOSED MERGERS WERE APPROVED, THE C& S SYSTEM (WHICH WOULD
INCLUDE OFFICES OF C& S NATIONAL IN FULTON COUNTY, C& S EAST POINT,
SANDY SPRINGS AND NORTH FULTON) WOULD ACCOUNT FOR 38.2% OF THE TOTAL
LOANS HELD BY ALL BANKING OFFICES IN FULTON COUNTY, 31.9% OF THE TOTAL
DEPOSITS AND 33.3* OF THE TOTAL IPC DEMAND DEPOSITS. 

IF THE PROPOSED MERGERS WERE APPROVED, THE FOUR LARGEST BANKS WOULD
ACCOUNT FOR THE FOLLOWING SHARES IN FULTON COUNTY: 

(TABLE OMITTED PAGE 128). 

ATLANTA AREA 

TREATING C& S NATIONAL, C& S EMORY, C& S DE KALB AND C& S EAST POINT
AS ONE BANKING ORGANIZATION, THERE ARE 31 COMMERCIAL BANKING
ORGANIZATIONS OPERATING OFFICES IN THE ATLANTA AREA, SIX OF WHICH
OPERATE OFFICES IN BOTH FULTON AND DE KALB COUNTIES.  IN TERMS OF TOTAL
LOANS, DEPOSITS, AND IPC DEMAND DEPOSITS HELD BY ALL BANKING OFFICES
LOCATED IN THE ATLANTA AREA, THE TOP 4 BANKS, RESPECTIVELY, ARE C& S
(OFFICES OF C& S NATIONAL, C& S EAST POINT, C& S EMORY AND C& S DE
KALB), FIRST NATIONAL BANK OF ATLANTA, TRUST COMPANY OF GEORGIA AND
FULTON NATIONAL BANK.  THE SHARES OF TOTAL LOANS, DEPOSITS AND IPC
DEMAND DEPOSITS ACCOUNTED FOR BY THE FOUR LARGEST BANKS ARE AS
FOLLOWS: 

(TABLE OMITTED PAGE 129). 

C& S (OFFICES OF C& S NATIONAL, C& S EMORY, C& S EAST POINT AND C& S
DE KALB) ACCOUNTS FOR THE FOLLOWING SHARES OF TOTAL LOANS, DEPOSITS AND
IPC DEMAND DEPOSITS HELD BY ALL BANKING OFFICES LOCATED IN THE ATLANTA
AREA: 

CHAMBLEE, PARK NATIONAL, SOUTH DE KALB, SANDY SPRINGS AND NORTH
FULTON ACCOUNT FOR THE FOLLOWING SHARES OF TOTAL LOANS DEPOSITS AND IPC
DEMAND DEPOSITS HELD BY ALL BANKING OFFICES LOCATED IN THE ATLANTA
AREA:  IF THEIR DEPOSITS (AS OF 12/31/71) WERE COMBINED ($71,142,252),
THESE FIVE BANKS WOULD BE THE EQUIVALENT OF THE SIXTH LARGEST BANKING
ORGANIZATION IN THE ATLANTA AREA.  SANDY SPRINGS AND CHAMBLEE ARE,
ALONE, THE TENTH AND ELEVENTH LARGEST BANKIN ORGANIZATIONS IN THE
ATLANTA AREA, RESPECTIVELY. 

IF THE PROPOSED MERGERS WERE APPROVED, THE C& S SYSTEM (WHICH WOULD
INCLUDE THE OFFICES OF C& S NATIONAL IN THE ATLANTA AREA, C& S EMORY,
C& S DE KALB, C& S EAST POINT, CHAMBLEE, PARK NATIONAL, SOUTH DE KALB,
SANDY SPRINGS AND NORTH FULTON) WOULD ACCOUNT FOR 38.2% OF THE TOTAL
LOANS HELD BY ALL BANKING OFFICES LOCATED IN THE ATLANTA AREA, 32.0% OF
THE TOTAL DEPOSITS AND 33.0% OF THE TOTAL IPC DEMAND DEPOSITS.  C& S
WOULD ALSO BE ACQUIRING THE TENTH AND ELEVENTH LARGEST BANKS IN THE
ATLANTA AREA. 

IF THE PROPOSED MERGERS WERE APPROVED, THE FOUR LARGEST BANKS WOULD
ACCOUNT FOR THE FOLLOWING SHARES IN THE ATLANTA AREA: 

(TABLE OMITTED PAGE 130). 

/1/ THESE COMPUTATIONS CONSIDER THE 5-PERCENT DEFENDANT BANKS AS
COMPLETELY SEPARATE ENTITIES (RATHER THAN AS CONSTITUTING A PART OF THE
C& S SYSTEM AS ACTUALLY IS THE CASE), AND OF COURSE, DO NOT RELATE TO
COMPETITION AS SUCH BUT RATHER TO THE ASSIGNMENT OF STATISTICAL
PROPORTIONS TO THE VARIOUS ENTITIES INVOLVED. 

/2/ SEE N. 1, SUPRA. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

I AGREE THAT THE DISTRICT COURT ERRED IN HOLDING THAT THE
CORRESPONDENT ASSOCIATE PROGRAMS ARE IMMUNE FROM SHERMAN ACT SCRUTINY
BECAUSE THEY ARE SUBJECT TO THE "EXCLUSIVE PRIMARY JURISDICTION" OF THE
FEDERAL RESERVE BOARD UNDER THE BANK HOLDING COMPANY ACT OF 1956, 70
STAT. 134, AS AMENDED.  THE DISTRICT COURT ALSO ERRED, HOWEVER, IN
HOLDING THAT THE UNITED STATES DID NOT PROVE THE VIOLATIONS OF SEC. 1
OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, AND SEC. 7 OF THE CLAYTON
ACT, 38 STAT. 731, AS AMENDED, ALLEGED, AND I THEREFORE DISSENT FROM
THE AFFIRMANCE OF ITS JUDGMENT. 

THE ISSUES UNDER THE CLAYTON AND SHERMAN ACTS, WHILE LOGICALLY
INDEPENDENT, ARE RELATED; BOTH PRESENT THE QUESTION WHETHER A LARGE
COMMERCIAL BANK, ALREADY POSSESSING A SUBSTANTIAL SHARE OF THE ATLANTA
MARKET, MAY LAWFULLY ACQUIRE OTHER BANKS, RATHER THAN EXPAND
INTERNALLY.  THREE BANKS NOW CONTROL MORE THAN 75% OF THE COMMERCIAL
BANKING BUSINESS IN ATLANTA.  TODAY'S DECISION ASSURES THAT THEIR
DOMINIONS WILL SOON BE EXTENDED AS ARRANGEMENTS THEY HAVE MADE WITH
INDEPENDENT BANKS TO OPERATE AS "DE FACTO BRANCHES" ARE SOLIDIFIED
THROUGH MERGER.  I CANNOT AGREE WITH TODAY'S DECISION THAT THE
GOVERNMENT IS POWERLESS TO PREVENT THIS RESULT. 

        I. THE SHERMAN ACT 

THE "5-PERCENT" BANKS IN THIS LITIGATION ENTERED INTO A RELATIONSHIP
WITH C& S FAR EXCEEDING THAT OF "CORRESPONDENT BANKING,"  THE PROVISION
OF CHECK CLEARANCE, INVESTMENT ADVICE, PERSONNEL TRAINING, OR OTHER
SPECIALIZED SERVICES IN ARM'S-LENGTH TRANSACTIONS.  /1/ FROM THE VERY
INCEPTION OF THESE RELATIONSHIPS, IT WAS CONTEMPLATED THAT THE 5
PERCENT BANKS WOULD SEEK, AND C& S WOULD PROVIDE, ADVICE AND GUIDANCE
WITH RESPECT TO VIRTUALLY EVERY BUSINESS DECISION OF SIGNIFICANCE.  C&
S PROVIDED ADVISORY DIRECTORS--TREATED BY ALL PARTIES AS ACTUAL
DIRECTORS--MADE AVAILABLE OPERATING MANUALS COVERING BANKING PRACTICES
IN MINUTE DETAIL, /2/ AND MAINTAINED A CONSTANT FLOW OF BULLETINS WHOSE
CONTENTS RANGED FROM ADMONITIONS ABOUT THE ANTITRUST LAWS TO
EXHORTATIONS TO "GET THE RATES (ON LOANS) UP."  C& S, THROUGH ITS
BRANCH SUPERVISION DEPARTMENT, MONITORED THE PERFORMANCE OF THE
MANAGEMENT OF THE 5-PERCENT BANKS AND WAS INSTRUMENTAL IN HAVING
REPLACED THOSE WHO DID NOT MEASURE UP.  THESE ARRANGEMENTS HAD THE
DESIRED EFFECT.  THE ELABORATE FABRIC OF "CONSULTATIONS," OF SEEKING
"ADVICE AND GUIDANCE,"  ELIMINATED THE OPPORTUNITY FOR RIVALRY AMONG
THE DEFENDANT BANKS.  THE DISTRICT COURT FOUND "NO PRESENTLY EXISTING
SUBSTANTIAL COMPETITION BETWEEN THE FIVE-PERCENT BANKS AND C& S
NATIONAL, OR INTER SESE."  372 F.SUPP.  616, 642 (1974). 

        A 

THE COURT CONCLUDES THAT ANTITRUST SCRUTINY OF THE AFFILIATION OF
THREE 5-PERCENT BANKS IS FORECLOSED BY THE GRANDFATHER PROVISION OF
SEC. 11 (D) OF THE BANK HOLDING COMPANY ACT, 12 U.S.C. SEC. 1849 (D). 
THAT HOLDING IS PLAINLY A DISTORTED EXPANSION OF SEC. 11 (D) BEYOND ITS
LANGUAGE AND PURPOSE. 

THE CONCEPT OF AN AMNESTY FOR UNCHALLENGED STRUCTURAL ARRANGEMENTS
IN COMMERCIAL BANKING FIRST APPEARED IN THE 1966 AMENDMENTS TO THE BANK
MERGER ACT, 80 STAT. 7.  IN THOSE AMENDMENTS, CONGRESS, RESPONDING IN
PART TO THIS COURT'S DECISIONS IN UNITED STATES V. PHILADELPHIA
NATIONAL BANK, 374 U.S. 321 (1963), AND UNITED STATES V. FIRST NATIONAL
BANK & TRUST CO. OF LEXINGTON, 376 U.S. 665 (1964), ATTEMPTED TO MESH
ANTITRUST CONSIDERATIONS WITH REVIEW OF PROPOSED BANK MERGERS BY THE
APPROPRIATE REGULATORY AGENCY.  THE RESULTING PROVISIONS, WHICH MANDATE
JUSTICE DEPARTMENT PARTICIPATION IN THE REGULATORY APPROVAL PROCESS AS
WELL AS CONSIDERATION BY THE REGULATORY AGENCIES OF "COMPETITIVE
FACTORS," AND PERMIT ANTITRUST SUIT WITHIN 30 DAYS OF REGULATORY
APPROVAL, APPEAR TODAY IN THE FEDERAL DEPOSIT INSURANCE ACT, 12 U.S.C.
SEC. 1828.  SEE UNITED STATES V. FIRST CITY NATIONAL BANK OF HOUSTON,
386 U.S. 361 (1967); UNITED STATES V. THIRD NATIONAL BANK IN NASHVILLE,
390 U.S. 171 (1968).  THE 1966 AMENDMENTS ALSO INCLUDED A GRANDFATHER
PROVISION, 80 STAT. 10, THAT CONFERRED IMMUNITY FROM ANTITRUST
CHALLENGE (EXCEPT UNDER SEC. 2 OF THE SHERMAN ACT) UPON ANY "MERGER,
CONSOLIDATION, ACQUISITION OF ASSETS, OR ASSUMPTION OF LIABILITIES"
CONSUMMATED BEFORE JUNE 17, 1963, THE DATE OF THE DECISION IN
PHILADELPHIA NATIONAL BANK. 

A FEW MONTHS AFTER ENACTMENT OF THE BANK MERGER ACT AMENDMENTS, THE
"ANTITRUST" PROVISIONS WERE WRITEEN ALMOST VERBATIM INTO THE BANK
HOLDING COMPANY ACT.  UNLIKE THEIR MERGER ACT COUNTERPARTS, THE 1966
AMENDMENTS TO THE BANK HOLDING COMPANY ACT WERE NOT PRINCIPALLY
ADDRESSED TO INTEGRATING ANTITRUST STANDARDS WITH THE REGULATORY
PROCESS, BUT RATHER TO EXPANDING THE FEDERAL RESERVE BOARD'S
JURISDICTION AND REGULATORY POWERS.  THE ANTITRUST PROVISIONS OF THE
HOLDING COMPANY ACT AMENDMENTS RECEIVED LITTLE LEGISLATIVE ATTENTION;
THE BRIEF REFERENCE TO THEM IN THE LEGISLATIVE HISTORY INDICATES THAT
THEIR PURPOSE WAS TO "APPLY TO BANK HOLDING COMPANY CASES THE SAME
PROCEDURES AS ARE NOW PROVIDED IN BANK MERGER CASES...."  /3/  AMONG
THE PROVISIONS SO BORROWED FROM THE EARLIER BANK MERGER ACT AMENDMENTS
WAS THE GRANDFATHER PROVISION, SEC. 11 (D). 

BECAUSE OF CONGRESSIONAL PREOCCUPATION WITH THE REGULATORY FEATURES
OF THE 1966 AMENDMENTS TO THE BANK HOLDING COMPANY ACT, INTERPRETATION
OF THE ANTITRUST PROVISIONS MAY INVOLVE AS MUCH AN ATTRIBUTION OF
CONGRESSIONAL INTENT AS A DISCERNMENT OF IT.  THIS IS PARTICULARLY THE
CASE WITH RESPECT TO SEC. 11 (D), WHICH WAS TRANSPLANTED FROM ONE
REGULATORY STATUTE TO ANOTHER WITH SEEMINGLY SCANT ATTENTION TO THE
DIFFERENCES IN THE REGULATORY ENVIRONMENT.  OBJECTIONS THAT
GRANFATHERING HOLDING COMPANY ACQUISITIONS POSED POSED POLICY QUESTIONS
DIFFERENT FROM THE RETROACTIVE IMMUNIZATION OF MERGERS WERE QUICKLY
BRUSHED ASIDE, /4/ AND SEC. 11 (D) WAS SWEPT INTO LAW ALONG WITH THE
OTHER ANTITRUST PROVISIONS.  THUS, DESPITE WHATEVER DISSIMILARITY OF
UNDERLYING POLICY CONSIDERATIONS MAY HAVE BEEN EXPOSED, CONGRESS
INDICATED THAT IT CONSIDERED THE GRANDFATHER PROVISIONS IN BOTH
STATUTES TO ADVANCE SUBSTANTIALLY SIMILAR PURPOSES.  ACCORDINGLY,
HOWEVER DIFFICULT MAY BE THE DISCERNMENT OF THE CONGRESSIONAL INTENT
EXPRESSED IN SEC. 11 (D), WE MUST LOOK FOR ASSISTANCE TO ITS
COUNTERPART IN THE BANK MERGER ACT, THE ONLY GUIDEPOST CONGRESS HAS
LEFT US.     THE GRANDFATHER PROVISION OF THE BANK MERGER ACT
AMENDMENTS MOST ASSUREDLY DID NOT PROVIDE SANCTUARY FOR THEN
UNCHALLENGED PRICE-FIXING, MARKET-DIVISION, OR OTHER CARTEL ACTIVITY BY
BANKS.  CONGRESSIONAL CONCERN WAS MUCH MORE NARROWLY DIRECTED. 
PHILADELPHIA NATIONAL BANK REJECTED A LITERAL INTERPRETATION OF SEC. 7
OF THE CLAYTON ACT THAT WOULD HAVE LIMITED ITS APPLICATION TO STOCK
ACQUISITIONS BY BANKS, AN INTERPRETATION THAT NEVERTHELESS ENJOYED SOME
ACCEPTANCE PRIOR TO THE DECISION.  CONGRESS WAS CONCERNED ABOUT THE
DIFFICULTY OF UNSCRAMBLING PRE-PHILADELPHIA NATIONAL BANK MERGERS
UNDERTAKEN IN RELIANCE UPON THE LITERAL INTERPRETATION OF SEC. 7, WHICH
THE COURT ULTIMATELY REJECTED, AND ACCORDINGLY IMMUNIZED THEM FROM SUIT
UNDER THAT SECTION.  /5/ BUT A PROVISION BARRING SUIT UNDER SEC. 1 OF
THE SHERMAN ACT WAS ALSO NECESSARY TO SAFEGUARD THE SAME MERGERS
BECAUSE OF OUR DECISION IN LEXINGTON BANK, SUPRA.  THUS, ALTHOUGH THE
RESULTING GRANDFATHER PROVISION COVERED BOTH THE CLAYTON AND SHERMAN
ACTS (EXCEPT SHERMAN ACT SEC. 2), ITS PURPOSE WAS TO SHIELD STRUCTURAL
ARRANGEMENTS OF THE SORT THE GOVERNMENT CHALLENGED IN PHILADELPHIA
NATIONAL BANK AND WAS CONTINUING TO CHALLENGE IN THE DISTRICT COURTS
THEREAFTER.  /6/ 

AGAINST THE FOREGOING BACKGROUND, WE CONFRONT THE LANGUAGE OF THE
COUNTERPART IN THE BANK HOLDING COMPANY ACT.  AS ENACTED IN 1966, SEC.
11 (D) SHIELDED AN "ACQUISITION, MERGER, OR CONSOLIDATION OF THE KIND
DESCRIBED IN SEC. 3 (A) OF THIS ACT."  SECTION 3 (A) PROVIDED THEN, AS
TODAY, THAT: 

     "(A) IT SHALL BE UNLAWFUL, EXCEPT WITH THE PRIOR APPROVAL OF

  THE BOARD, (1) FOR ANY ACTION TO BE TAKEN THAT CAUSES ANY COMPANY

  TO BECOME A BANK HOLDING COMPANY; (2) FOR ANY ACTION TO BE TAKEN

  THAT CAUSES A BANK TO BECOME A SUBSIDIARY OF AN BANK HOLDING

  COMPANY; (3) FOR ANY BANK HOLDING COMPANY TO ACQUIRE DIRECT OR

 INDIRECT OWNERSHIP OR CONTROL OF ANY VOTING SHARES OF ANY BANK

  IF, AFTER SUCH ACQUISITION, SUCH COMPANY WILL DIRECTLY OR

  INDIRECTLY OWN OR CONTROL MORE THAN 5 PER CENTUM OF THE VOTING

  SHARES OF SUCH BANK; (4) FOR ANY BANK HOLDING COMPANY OR

  SUBSIDIARY THEREOF, OTHER THAN A BANK, TO ACQUIRE ALL OR

  SUBSTANTIALLY ALL OF THE ASSETS OF A BANK; OR (5) FOR ANY BANK

  HOLDING COMPANY TO MERGE OR CONSOLIDATE WITH ANY OTHER BANK

  HOLDING COMPANY."  /7/

THE FEDERAL RESERVE BOARD TO REGULATE THE EVENTS THEREIN DESCRIBED. 

BY "GRANDFATHERING" AN "ACQUISITION, MERGER, OR CONSOLIDATION OF THE
KIND DESCRIBED IN SEC. 3 (A)," CONGRESS OBVIOUSLY EXEMPTED FROM
ANTITRUST CHALLENGE ONLY THE EVENTS FOR WHICH BOARD APPROVAL WOULD HAVE
BEEN REQUIRED.  NONE OF THE TRANSACTIONS DEFINED BY SEC. 3 (A),
HOWEVER, INCLUDES THOSE FEATURES OF THE "CORRESPONDENT ASSOCIATE"
RELATIONSHIP THAT THE GOVERNMENT IS CHALLENGING UNDER SHERMAN ACT SEC.
1 IN THIS CASE.  CLAUSES (4) AND (5) OF SEC. 3 (A) REFER, RESPECTIVELY,
TO AN ACQUISITION OF ASSETS AND A MERGER OF TWO HOLDING COMPANIES. 
CLAUSE (3) REFERS TO WNERSHIP OF VOTING STOCK BY A HOLDING COMPANY; THE
STOCK OWNERSHIP BY C& S IS NOT, HOWEVER, THE SALIENT FEATURE OF THE
AFFILIATIVE RELATIONSHIP AND INDEED IS NOT CHALLENGED IN THIS CASE. 
CLAUSES (1) AND (2) ADDRESS THE CREATION OF A HOLDING COMPANY
SUBSIDIARY RELATIONSHIP.  THE DEFINITIONAL PROVISIONS OF SEC. 2 (D)
HAVE UNDERGONE RECENT EXPANSION, BUT IN 1966 THEY DESIGNATED A BANK AS
A "SUBSIDIARY" IF A HOLDING COMPANY EITHER (1) DIRECTLY OR INDIRECTLY
OWNED OR CONTROLLED 25% OR MORE OF ITS VOTING STOCK, OR (2) CONTROLLED
IN ANY MANNER THE ELECTION OF A MAJORITY OF ITS DIRECTORS.  THESE TWO
CONDITIONS WOULD OFTEN BE SATISFIED SIMULTANEOUSLY, AND INDEED SHORTLY
AFTER ENACTMENT OF THE FORERUNNER OF THIS PROVISION IN 1956 IT WAS
SUGGESTED THAT THE SECOND CONDITION WAS REDUNDANT.  SEE NOTE, THE BANK
HOLDING COMPANY ACT OF 1956, 9 STAN.  L.REV.  33, 337, AND N. 59
(1957).  CONGRESS, HOWEVER, WAS APPARENTLY CONCERNED THAT STOCK
INTERESTS COULD BE SO STRUCTURED THAT A HOLDING COMPANY COULD ELECT A
MAJORITY OF DIRECTORS WITHOUT SATISFYING THE 25% OWNERSHIP
REQUIREMENT.  /8/ WHETHER OR NOT THIS FEAR WAS WELL-FOUNDED, IT IS
CLEAR THAT SATISFACTION OF EITHER CONDITION REQUIRED AN ARRANGEMENT
WHEREBY THE HOLDING COMPANY HAD THE POWER TO VOTE STOCK. 

IN ESTABLISHING ITS "CORRESPONDENT ASSOCIATES" C& S DID NOT ENGAGE
IN THE TRANSACTIONS DESCRIBED BY SEC. 3 (A) IN 1966 AND THEREFORE
SHELTERED BY SEC. 11 (D).  INDEED, BECAUSE OF STATE-LAW RESTRICTIONS C&
S COULD NOT RESORT TO THE METHODS DESCRIBED BY SEC. 3 (A) OF THE
HOLDING COMPANY ACT AND TURNED INSTEAD TO MORE INFORMAL ARRANGEMENTS,
INCLUDING "UNDERSTANDINGS."  WHILE THE FUNCTIONAL EQUIVALENT OF A
HOLDING COMPANY-SUBSIDIARY RELATIONSHIP COULD PERHAPS BE CREATED
THROUGH INFORMAL AFFILIATION, SEC. 3 (A), AT LEAST UNTIL QUITE
RECENTLY, HAS BEEN TRIGGERED BY THE FORMALITY OF CONTROL OF VOTING
STOCK.  TO BE SURE, SEC. 2 (D) HAS ALWAYS REFERRED TO A SUBSIDIARY AS
ONE WHOSE STOCK IS "DIRECTLY OR INDIRECTLY" OWNED OR CONTROLLED OR
WHOSE ELECTION OF DIRECTORS IS CONTROLLED "IN ANY MANNER" BY THE
HOLDING COMPANY.  /9/  BUT THERE HAS BEEN NO SUGGESTION BY CONGRESS,
NOR BY THE BOARD, THAT THIS LANGUAGE WOULD EMBRACE THE LESS FORMAL
ARRANGEMENTS BY WHICH THE C& S BANKS OPERATED IN COMPLETE HARMONY WITH
C& S. INDEED, THE STATUTORY CLUES SUGGEST THE CONTRARY, THAT CONGRESS
WAS CONCERNED WITH POWERS ATTACHED TO STOCK, AND THAT "INDIRECT"
OWNERSHIP OR CONTROL MERELY REFERRED TO THEIR EXERCISE DERIVATIVELY,
THROUGH AN INTERMEDIARY.  /10/ 

IN THE 1970 AMENDMENTS TO THE HOLDING COMPANY ACT, 84 STAT. 1760,
CONGRESS EXPANDED THE REACH OF SEC. 3.  THE ACT NOW DEFINED "CONTROL"
TO INCLUDE A RELATIONSHIP WHEREBY A COMPANY "DIRECTLY OR INDIRECTLY
EXERCISES A CONTROLLING INFLUENCE OVER THE MANAGEMENT AND POLICIES OF
THE BANK...."  SEC.  2 (A)(2)(C), 12 U.S.C. SEC. 1841 (A) (2)(C). 
CONGRESSIONAL PREOCCUPATION WITH STOCK IS STILL EVIDENT SINCE THERE IS
A STATUTORY PRESUMPTION THAT "ANY COMPANY WHICH DIRECTLY OR INDIRECTLY
OWNS, CONTROLS, OR HAS POWER TO VOTE LESS THAN 5 PER CENTUM OF ANY
CLASS OF VOTING SECURITIES OF A GIVEN BANK OR COMPANY DOES NOT HAVE
CONTROL OVER THAT BANK OR COMPANY."  SEC.  2(A)(3).  NEVERTHELESS THE
BOARD HAS BY REGULATION ESTABLISHED A REBUTTABLE PRESUMPTION OF CONTROL
WHERE A COMPANY 

"ENTERS INTO ANY AGREEMENT OR UNDERSTANDING WITH A BANK...SUCH AS A
MANAGEMENT CONTRACT, PURSUANT TO WHICH THE COMPANY OR ANY OF ITS
SUBSIDIARIES EXERCISES SIGNIFICANT INFLUENCE WITH RESPECT TO THE
GENERAL MANAGEMENT OVERALL OPERATIONS OF THE BANK...."  12 CFR SEC.
225.2 (B)(3) (1975).  ARGUABLY, THE BOARD'S INTERPRETATION WOULD NOW
BRING WITHIN SEC. 3 THE AFFILIATION OF THE 5-PERCENT BANKS WITH C& S.
BUT THE BOARD'S INTERPRETATION IS BASED UPON RECENT LEGISLATION
EXPANDING THE REACH OF THE BOARD'S REGULATORY AUTHORITY.  /11/ SINCE I
DO NOT SUPPOSE CONGRESS INTENDED IN 1966 TO IMMUNIZE TRANSACTIONS OF
THE KIND IT HAD NOT YET BROUGHT WITHIN SEC. 3, THE 1970 AMENDMENT IS
RELEVANT ONLY BECAUSE IT DEMONSTRATES THE LIMITED CHARACTER OF THE
TRANSACTIONS PREVIOUSLY EMBRACED BY SEC. 3 AND "GRANDFATHERED" UNDER
SEC. 11 (D). 

THE CONCLUSION THAT CONGRESS HAD TRADITIONALLY NOT BROUGHT INFORMAL
ARRANGEMENTS WITHIN SEC. 3 (A) WAS REINFORCED BY THE PROVISIONS OF SEC.
4 (A)(2) OF THE ORIGINAL ACT, 70 STAT. 135, WHICH FORBADE A BANK
HOLDING COMPANY TO 

"ENGAGE IN ANY BUSINESS OTHER THAN THAT OF BANKING OR OF MANAGING OR
CONTROLLING BANKS OR OF FURNISHING SERVICES TO OR PERFORMING SERVICES
FOR ANY BANK OF WHICH IT OWNS OR CONTROLS 25 PER CENTUM OR MORE OF THE
VOTING SHARES."  THIS PROVISION WAS ENACTED IN 1956, AND AS EARLY AS
1960 THE BOARD BY REGULATION INTERPRETED "SERVICES" TO INCLUDE MANY OF
THE FUNCTIONS C& S HAS PERFORMED FOR THE 5-PERCENT BANKS.  INCLUDED IN
THE BOARD'S INTERPRETATION ARE:  "(1) (ESTABLISHMENT AND SUPERVISION OF
LOANING POLICIES; (2) DIRECTION OF THE PURCHASE AND SALE OF INVESTMENT
SECURITIES; (3) SELECTION AND TRAINING OF OFFICER PERSONNEL; (4)
ESTABLISHMENT AND ENFORCEMENT OF OPERATING POLICIES; AND (5) GENERAL
SUPERVISION OVER ALL POLICIES AND PRACTICES."  12 CFR SEC. 225.113
(1975).  THE DIFFERENTIATION OF THESE ACTIVITIES FROM "CONTROL OR
MANAGEMENT" AND THEIR INCLUSION IN SEC. 4 OF THE ACT RATHER THAN IN
SEC. 3 VIVIDLY EXPOSES THE FALLACY OF TODAY'S HOLDING INVOKING SEC. 11
(D) TO FORECLOSE SCRUTINY OF THE "CORRESPONDENT ASSOCIATE" RELATIONSHIP
OF THREE OF THE 5-PERCENT BANKS.  SINCE SEC. 11 (D) SHIELDED ONLY THE
EVENTS THEN DESCRIBED IN SEC. 3 (A), THE CONCLUSION IS COMPELLED THAT
ALL THE 5-PERCENT BANKS ARE PROPERLY BEFORE US ON THE SHERMAN ACT
COUNTS.  /12/ ACCORDINGLY, I TURN TO THE MERITS. 

        B 

THE DISTRICT COURT FOUND THAT THERE WERE NO EXPRESS AGREEMENTS AMONG
THE DEFENDANT BANKS TO FIX PRICES OR DIVIDE MARKETS THAT WOULD CALL FOR
APPLICATION OF THE PER SE RULE, UNITED STATES V. SOCONY-VACUUM OIL CO.,
310 U.S. 150 (1940); UNITED STATES V. SEALY, INC., 388 U.S. 350 (1967),
BUT IT ALSO FOUND THAT THE EFFECT OF THE ASSOCIATION WAS TO ELIMINATE
ALL COMPETITION AMONG THE BANKS INVOLVED. 

THE COURT FINDS THE RESTRAINTS EMBODIED IN THE "CORRESPONDENT
ASSOCIATE" RELATIONSHIP REASONABLE BECAUSE OF STATE-LAW RESTRICTIONS
THAT BLOCKED, FOR A TIME, THE AVENUE OF INTERNAL EXPANSION BY C& S. IF
THE QUESTION BEFORE US WERE THE LAWFULNESS OF THESE ARRANGEMENTS AT
THEIR INCEPTION, THIS SOLUTION MIGHT BE SATISFACTORY.  THE QUESTION
WOULD BE A CLOSE ONE, HOWEVER, CALLING FOR A DELICATE BALANCING OF THE
IMMEDIATE BENEFITS OF EXPANDED BANKING SERVICES AGAINST THE MORE
DISTANT, BUT NEVERTHELESS REAL, DANGER OF PERMITTING THE RESTRAINTS
NECESSARY TO CIRCUMVENT DE JURE BARRIERS TO EXPANSION TO CONTINUE
LONGER THAN THE CONDITIONS THAT JUSTIFIED THEM.  THE INQUIRY WOULD, OF
COURSE, HAVE TO TAKE INTO ACCOUNT THE POSSIBILITY THAT EXPANSION WOULD
OCCUR UNDER LESS RESTRICTIVE CONDITIONS.  NEW ENTRY BY AN UNAFFILIATED
BANK.  /13/ OR ENTRY WITH A MORE LIMITED FORM OF SPONSORSHIP--A PERIOD
OF INITIAL ASSISTANCE, FOLLOWED BY A WITHDRAWAL OF THE SPONSOR'S
INFLUENCE, AT LEAST TO A CONVENTIONAL CORRESPONDENT RELATIONSHIP /14/ -
MIGHT HAVE SUFFICED TO PROVIDE THE EXPANSION CITED HERE AS A
JUSTIFICATION FOR INCIDENTAL RESTRAINTS.  THE JUDICIAL RESOURCES
CONSUMED BY SUCH AN INQUIRY IN ANY PARTICULAR CASE WOULD NOT BE
INSUBSTANTIAL, AND THE VERY DIFFICULTY OF MAKING SUCH JUDGMENTS HAS IN
MANY CASES LED US TO PREFER PER SE RULES.  UNITED STATES V. SOCONY
VACUUM CO., SUPRA, AT 220 - 221; NORTHERN PACIFIC R. CO. V. UNITED
STATES, 356 U.S. 1, 5 (1958); UNITED STATES V. SEALY, INC., SUPRA;
UNITED STATES V. TOPCO ASSOCIATES, INC., 405 U.S. 596 (1972).  SEE ALSO
UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S., AT 362. 

THE ISSUE IN THIS CASE, HOWEVER, IS NOT WHETHER THE AFFILIATION OF
THE 5-PERCENT BANKS WAS LAWFUL AT ITS INCEPTION, BUT WHETHER IT COULD
LAWFULLY CONTINUE, FOR THE GOVERNMENT SOUGHT ONLY AN INJUNCTION.  BY
THE TIME THE GOVERNMENT BROUGHT SUIT, GEORGIA LAW PERMITTED C& S TO
BRANCH FREELY IN THE ATLANTA SUBURBS.  BECAUSE THE RULE OF REASON
REQUIRES US TO ASSESS THE LAWFULNESS OF A RESTRAINT IN LIGHT OF ALL THE
CIRCUMSTANCES, CHICAGO BOARD OF TRADE V. UNITED STATES, 246 U.S. 231,
238 (1918), THE LAWFULNESS OF THE PRACTICES AT THEIR INCEPTION, EVEN IF
ASSUMED, COULD NOT BE C ONTROLLING, FOR CHANGES IN MARKET CONDITIONS
CAN DEPRIVE ONCE-REASONABLE ARRANGEMENTS OF THEIR JUSTIFICATION. 
UNITED STATES V. JERROLD ELECTRONICS, 187 F.SUPP.  545, 560 - 564 (ED
PA. 1960), AFF'D, 365 U.S. 567 (1961).  SEE ALSO UNITED STATES V.
E.I.DU PONT DE NEMOURS & CO., 353 U.S. 586, 596 - 598 (1957).  THE
CLAIMED DESIRABILITY OF THE CHALLENGED ARRANGEMENTS AS A RESPONSE TO
NOW-REPEALED RESTRICTIONS OF GEORGIA LAW IS THEREFORE RELEVANT ONLY
INSOFAR AS IT MAY ALSO BE CLAIMED THAT CONTINUATION OF SUCH
ARRANGEMENTS UNDISTURBED BY THE SHERMAN ACT WOULD BE VITAL TO THEIR
CREATION WERE GEORGIA TO REINSTATE ITS RESTRICTIONS IN THE FUTURE.  PUT
ANOTHER WAY, WE NEED CONCERN OURSELVES WITH THE LAWFULNESS OF "DE FACTO
BRANCHES" AS A RESPONSE TO STATE-LAW RESTRICTIONS ONLY IF APPELLEES
MAKE A CONVINCING SHOWING THAT NO BANK WOULD ENGAGE IN "DE FACTO
BRANCHING" WITHOUT A GUARANTEE OF PERPETUAL NONINTERFERENCE FROM THE
ANTITRUST LAWS. 

CERTAINLY IT IS OPEN TO C& S TO ARGUE THAT NO RATIONAL BANKER WOULD
SPONSOR A DE FACTO BRANCH UNLESS ASSURED THAT THE RESULTING
RELATIONSHIPS COULD CONTINUE IN PERPETUITY.  BUT THIS SORT OF ARGUMENT
HAS SELDOM CARRIED THE DAY IN THIS COURT, SEE UNITED STATES V. SEALY,
SUPRA; UNITED STATES V. TOPCO ASSOCIATES, SUPRA, AND I DO NOT FIND IT
PERSUASIVE IN THIS CASE.  A BANK HEMMED IN BY STATE ANTIBRANCHING
RESTRICTIONS WILL PRESUMABLY FIND IT PROFITABLE TO TAKE A SMALL STOCK
INTEREST IN AN INDEPENDENT BANK, TO OFFER ASSISTANCE AND THEREBY
ATTEMPT TO WIN CONSUMER LOYALTY THROUGH AN EXPANDED USE OF ITS OWN
NAME.  C& S PRESUMABLY FOUND THESE ARRANGEMENTS PROFITABLE AT THEIR
INCEPTION.  THE RECORD DOES NOT SHOW WHETHER C& S ACTUALLY CHARGED THE
5-PERCENT BANKS FOR SUCH ASSISTANCE AS SITE SELECTION, ECONOMIC
SURVEYS, EQUIPMENT PROCUREMENT, AND OTHER PROMOTIONAL SERVICES; THERE
IS NO SUGGESTION, HOWEVER, THAT C& S PROVIDED THESE SERVICES AT AN
ULTIMATE LOSS, AND PRESUMABLY GAINS ULTIMATELY ACRUED TO THE PROVIDER. 
TRUE, C& S HOPED TO CEMENT THE RELATIONSHIPS THROUGH MERGER, BUT IT IS
NOT CLEAR THAT THESE EXPECTATIONS WERE ESSENTIAL TO THE INTITIAL
UNDERTAKING.  INDEED, C& S CONTINUED TO PROVIDE ASSISTANCE TO CERTAIN
BANKS AS TO WHICH THERE WAS LITTLE PROSPECT OF ULTIMATE ACQUISITION BY
C& S. (2 APP. 378 - 3799) OUR CONCERN, IN ANY EVENT, LIES NOT WITH
PROTECTING THE EXPECTATIONS OF C& S BUT WITH AVOIDING DISINCENTIVES TO
THE PROVISION OF DESIRABLE SERVICES.  SPONSORSHIP WILL BE PROFITABLE TO
A SPONSOR BANK ASSUMING THAT THERE IS A DEMAND FOR THE SERVICES OF THE
SPONSORED BANK AND THAT THE SPONSOR CAN RECOUP IN SOME FASHION A RETURN
FOR ITS ASSISTANCE.  THESE CONDITIONS SHOULD BE SUFFICIENT TO INDUCE A
PROFIT-SEEKING BANK, CHAFING UNDER ANTIBRANCHING RESTRICTIONS, TO
SPONSOR A NEW ENTRANT EVEN IF PERMANENT ARRANGEMENTS ARE FORBIDDEN. 

THIS CASE, THEREFORE, DOES NOT PRESENT AN OCCASION FOR CONSIDERATION
WHETHER THE RESTRAINTS INCIDENT TO "DE FACTO BRANCHING"  ARE LAWFUL
WHEN UNDERTAKEN IN RESPONSE TO A PROHIBITION OF DE JURE BRANCHING, A
POSITION THE COURT SAYS THE GOVERNMENT TOOK LAST TERM IN UNITED STATES
V. MARINE BANCORPORATION, 418 U.S. 602 (1974).  THE RESTRAINTS INCIDENT
TO THE AFFILIATION OF THE 5-PERCENT BANKS WITH C& S MUST BE EXAMINED IN
LIGHT OF CONDITIONS PREVAILING AT THE TIME OF SUIT, WHICH INCLUDE THE
ABILITY OF C& S TO BRANCH FREELY IN THE ATLANTA SUBURBS. 

THE ARRANGEMENTS BETWEEN C& S AND THE 5-PERCENT BANKS RESEMBLE A
"COMMON BRAND" MARKETING AGREEMENT OR A FRANCHISING ARRANGEMENT IN
WHICH THE FRANCHISOR ITSELF DEALS DIRECTLY WITH CONSUMERS AS WELL AS
PROVIDING ENTREPRENEURIAL SKILL AND OTHER ASSISTANCE TO FRANCHISEES. 
SUCH COMBINATIONS MAY, UNDER CERTAIN CIRCUMSTANCES, ENHANCE
COMPETITION.  COMMON-BRAND MARKETING MAY PERMIT A GROUP OF SMALL FIRMS
TO EXPLOIT PROMOTIONAL ECONOMIES AND THEREBY COMPETE WITH LARGER
ENTERPRISES WHOSE BUSINESS SPANS EVERAL GEOGRAPHIC SUB-MARKETS. 
FRANCHISING MAY FACILITATE ENTRY BY ALLOWING AN ENTERING FIRM TO SAVE
ON PROMOTIONAL EXPENSES AND TO PURCHASE NEEDED ENTREPRENEUTRIAL
ASSISTANCE.  RESTRAINTS INVARIABLY ACCOMPANY THESE COMBINATIONS FOR THE
PURPOSE OF PROMOTING PRODUCT UNIFORMITY, FOR SOME STANDARDIZATION OF
PRODUCT IS INDISPENSABLE TO THE SUCCESS OF THE SCHEME.  BECAUSE
NOTWITHSTANDING ACCOMPANYING RESTRAINTS SUCH COMBINATIONS MAY ON
BALANCE ENHANCE COMPETITION, IT WOULD BE A MISTAKE TO REGARD THEM AS
PER SE OR EVEN PRESUMPTIVELY UNLAWFUL, AND LOWER COURTS HAVE NOT DONE
SO.  SEE, E.G., UNITED STATES V. TOPCO ASSOCIATES, INC., 319 F.SUPP. 
1031, 1038 (ND ILL. 1970).  REV'D ON OTHER GROUNDS, 405 U.S. 596
(1972); SIEGEL V. CHICKEN DELIGHT, INC., 448 F.2D 43 (CA9 1971);
SUSSSER V. CARVEL CORP., 332 F.2D 505 (CA2 1964).  BUT THE SHERMAN ACT
LIMITS THE SCOPE OF CO-OPERATION INCIDENT TO SUCH ARRANGEMENTS.  THE
PARTICIPANTS MAY NOT FIX PRICES OR DIVIDE MARKETS.  %UNITED STATES V.
TOPCO ASSOCIATES, INC., SUPRA:  UNITED STATES V. SEALY, INC., SUPRA;
UNITED STATES V. ARNOLD, SCHWINN & CO., 388 U.S. 365 (1967).  SUCH
COMBINATIONS, MOREOVER, WARRANT CAREFUL SCRUTINY WHEN THEIR
PARTICIPANTS COLLECTIVELY POSSESS A DOMINANT SHARE OF A COMMON MARKET,
AS TO WHICH THERE ARE SUBSTANTIAL BARRIERS TO ENTRY, FOR THESE
CONDITIONS ENHANCE THE PROFITABILITY OF PRICE COLLUSION AMONG
PARTICIPANTS AND THUS MAY TEMPT THEM TO STANDARIZE PRICE AS WELL AS
OTHER PRODUCT ATTRIBUTES. 

DESPITE THE ACCEPTABILITY GENERALLY OF COMMON-BRAND OR FRANCHISING
ARRANGEMENTS, THEY POSE PARTICULAR DIFFICULTY IN THE COMMERCIAL BANKING
CONTEXT.  MANY FEATURES OF A COMMERCIAL BANK'S SERVICES ARE SET BY
REGULATION, THUS INHIBITING COMPETITION BY RESTRICTING THE NUMBER OF
PRODUCT FEATURES THAT INDIVIDUAL FIRMS ARE FREE TO VARY.  WITH INTEREST
RATES ON LOANS FIXED BY LAE, FOR EXAMPLE, COMPETITION IS CONFINED TO
SUCH "NON-PRICE" FEATURES AS COLLATERAL REQUIREMENTS OR REPAYMENT
POLICIES.  WITH COMPETITION THUS ALREADY DELIMITED, FEW ADDITIONAL
RESTRAINTS INCIDENT TO A COOPERATIVE SCHEME CAN BE TOLERATED BEFORE
COMPETITION IS EXTINGUISHED ENTIRELY.  MOREOVER, THE ENTRY BARRIERS
POSED BY REGULATION ENHANCE THE DANGER THAT INCIDENTAL COOPERATION WILL
BE EXTENDED TO ABOLISH ALL RIVALRY.  THESE CONSIDERATIONS SUGGEST THAT
CO-OPERATIVE ARRANGEMENTS IN COMMERCIAL BANKING SHOULD BE PERMITTED
ONLY WHERE THEIR COMPETITIVE BENEFITS ARE CLEAR, AND WHERE THE COMBINED
MARKET SHARES OF THE PARTICIPANTS DISPEL THE FEAR THAT PRICE COLLUSION
WILL ACCOMPANY THEM. 

THE SITUATION HERE FAILS TO SATISFY THE TEST.  THE COMBINED SHARES
OF C& S AND THE 5-PERCENT BANKS ARE SUBSTANTIAL UNDER ANY OF THE
ALTERNATIVE DEFINITIONS OF THE GEOGRAPHIC MARKET CITED BY THE COURT. 
ANTE, AT 122 - 130.  /15/ FURTHERMORE, THE COOPERATIVE ARRANGEMENTS
INVOLVE NOT A GROUP OF SMALL FIRMS ALLIED TO CHALLENGE A LARGER RIVAL,
UNITED STATES V. TOPCO ASSOCIATES, SUPRA, BUT INSTEAD THE DOMINANT FIRM
WHICH THEREBY EXTENDS ITS HEGEMONY.  IN A MARKET SO CONCENTRATED AS IS
COMMERCIAL BANKING IN ATLANTA, THE MOST MUST BE MADE OF OPPORTUNITY FOR
RIVALRY AMONG EXISTING FIRMS.  CF. UNITED STATES V. PHILADELPHIA
NATIONAL BANK, 374 U.S., AT 372.  THE 5-PERCENT BANKS ARE NOW
SUBSTANTIAL, THRIVING ENTERPRISES, /16/  INHIBITED FROM COMPETING WITH
C& S ONLY BY THE "CORRESPONDENT ASSOCIATE" RELATIONSHIP.  I WOULD HOLD
THAT THE GOVERNMENT IS ENTITLED TO AN INJUNCTION, SPECIFICALLY AGAINST
THE CONTINUED USE BY THE 5-PERCENT BANKS OF THE C& S NAME, THE
CONTINUED USE OF ADVISORY DIRECTORS FURNISHED BY C& S, AND CONTINUED
"CONSULTATIONS" BETWEEN THE MANAGEMENT OF THE 5-PERCENT BANKS AND C& S,
INCLUDING THE FLOW OF MEMORANDA FOR "ADVICE AND GUIDANCE." 

II.  THE CLAYTON ACT 

THE COURT CONCEDES THAT UNDER OUR PRIOR DECISIONS THE GOVERNMENT HAS
ESTABLISHED A PRIMA FACIE CASE UNDER SEC. 7.  ANTE, AT 120.  BUT THE
COURT AFFIRMS THE DISTRICT COURT'S DETERMINATION THAT THE ACQUISITIONS
ADD NOTHING OF ANTICOMPETITIVE SIGNIFICANCE TO THE PRE-EXISTING
"CORRESPONDENT ASSOCIATE" RELATIONSHIP.  SINCE I HAVE CONCLUDED THAT
THE RELATIONSHIP ITSELF VIOLATES THE SHERMAN ACT, I ALSO DISAGREE WITH
THE COURT'S AFFIRMANCE OF THE DISTRICT COURT ON THE CLAYTON ACT ISSUE. 
SINCE, IN MY VIEW, APPELLEES CAN NO LONGER RELY UPON THE AFFILIATION TO
REBUT THE GOVERNMENT'S PRIMA FACIE CASE, I WOULD REMAND TO THE DISTRICT
COURT FOR CONSIDERATION OF THE "CONVENIENCE AND NEEDS" DEFENSE OF 12
U.S.C. SEC. 1828 (C)(5)(B).  BUT I ALSO DISAGREE WITH THE COURT'S
CONCLUSION THAT THE ACQUISITIONS ADD NOTHING OF SIGNIFICANCE TO THE
EXISTING ARRANGEMENTS, AND I WOULD THEREFORE REVERSE EVEN IF I ACCEPTED
THE COURT'S DISPOSITION OF THE SHERMAN ACT COUNTS.  I STATE BRIEFLY MY
REASONS FOR SO CONCLUDING. 

IF NOT ACQUIRED, THE 5-PERCENT BANKS HAVE THE POWER TO BREAK THEIR
TIES WITH C& S, AND THE LIKELIHOOD THAT ANY WOULD DO SO MAY BE EXPECTED
TO INCREASE INCEPTION, THE RECENT PERFORMANCE OF THE 5-PERCENT BANKS
ATTESTS TO THEIR PRESENT VIABILITY.  /17/ BECAUSE OF THE CONTINUING
POPULATION GROWTH OF THE ATLANTA AREA, THE BANKS MAY ANTICIPATE AN
EXPANDING DEMAND FOR THEIR SERVICES.  THESE CIRCUMSTANCES MIGHT WELL
INDUCE THE MANAGEMENT OF A 5-PERCENT BANK TO ASSUME A MORE INDEPENDENT
POSTURE, AT LEAST TO SHOP AROUND AMONG OTHER LARGE ATLANTA BANKS FOR
MORE CONVENTIONAL "CORRESPONDENT" SERVICES.  /18/ 

QUITE APART FROM WHAT THE MANAGEMENTS OF THE 5-PERCENT BANKS MIGHT
DO, IT IS MOST IMPROBABLE THAT C& S WOULD LONG BE HAPPY WITH EXISTING
ARRANGEMENTS IF ACQUISITION WERE ENJOINED.  THE RECORD DEMONSTRATES THE
AGGRESSIVE, EXPANSIONIST PERFORMANCE OF C& S, HAVING INCREASED ITS
ATLANTA OFFICES FROM THREE IN 1946 TO MORE THAN 100 BY THE TIME OF
TRIAL.  IT IS QUITE INCONCEIVABLE THAT SUCH A FIRM WOULD LONG BE
CONTENT TO CONTINUE OPERATIONS THROUGH DE FACTO BRANCHES IN WHICH ITS
INTEREST WAS LIMITED TO 5%.  THE FORMATION OF DE JURE BRANCHES,
ULTIMATELY IN COMPETITION WITH FORMER "CORRESPONDENT ASSOCIATES," WOULD
BE A PLAUSIBLE RESULT. 

THE FOREGOING ARE NOT "EPHEMERAL POSSIBILITIES," BROWN SHOE CO. V.
UNITED STATES, 370 U.S. 2948 323 (1962), THAT ANTITRUST ANALYSIS SHOULD
IGNORE.  SECTION 7 WAS INTENDED, AS WE HAVE REPEATEDLY SAID, TO "ARREST
ANTICOMPETITIVE TENDENCIES IN THEIR 'INCIPIENCY.'"  UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S., AT 362.  IN APPLYING THE SEC. 7
STANDARDS, WE ARE OBLIGED TO HOLD ACQUISITIONS UNLAWFUL IF A REASONABLE
LIKELIHOOD OF A SUBSTANTIAL LESSENING OF COMPETITION UNDER FUTURE
CONDITIONS IS DISCERNIBLE.  E.G., UNITED STATES V. CONTINENTAL CAN CO.,
378 U.S. 441, 458 (1964); FTC V. PROCTER & GAMBLE CO., 386 U.S. 568,
577 (1967); UNITED STATES V. FALSTAFF BREWING CORP., 410 U.S. 526, 539
(1973) (DOUGLAS, J., CONCURRING IN PART).  WHILE INQUIRY AS TO FUTURE
MARKET CONDITIONS AND PERFORMANCE INEVITABLY INVOLVES SPECULATION,
FIDELITY TO THE CONGRESSIONAL PURPOSE REQUIRES US TO RESOLVE REASONABLE
DOUBTS IN FAVOR OF THE PRESERVATION OF INDEPENDENT ENTITIES.  THIS IS
PERFORCE TRUE WHERE, AS HERE, THE MARKET IS HIGHLY CONCENTRATED AND THE
ACQUIRING FIRM IS THE DOMINANT ONE. 

MY BROTHER WHITE REMINDED US IN HIS DISSENT LAST TERM IN UNITED
STATES V. MARINE BANCORPORATION, 418 U.S., AT 653: 

     " IN THE LAST ANALYSIS, ONE'S VIEW OF THIS CASE, AND THE RULES

  ONE DEVISES FOR ASSESSING WHETHER THIS MERGER SHOULD BE BARRED,

  TURNS ON THE POLICY OF SEC. 7 OF THE CLAYTON ACT TO BAR MERGERS

  WHICH MAY CONTRIBUTE TO FURTHER CONCENTRATION IN THE STRUCTURE OF

  AMERICAN BUSINESS... THE DANGERS OF CONCENTRATION ARE

PARTICULARLY ACUTE IN THE BANKING BUSINESS, SINCE 'IF THE COSTS

  OF BANKING SERVICES AND CREDIT ARE ALLOWED TO BECOME EXCESSIVE BY

  THE ABSENCE OF COMPETITIVE PRESSURES, VIRTUALLY ALL COSTS, IN OUR

  CREDIT ECONOMY, WILL BE AFFECTED....'"  (CITATIONS OMITTED.) 

TODAY'S DECISION PERMITS C& S, THE DOMINANT COMMERCIAL BANK IN ATLANTA,
FURTHER TO ENTRENCH ITS POSITION.  TWO OTHER RIVALS, WHICH TOGETHER
WITH C& S CONTROL MORE THAN 75, OF THE BANKING BUSINESS IN ATLANTA, MAY
NOW BE EXPECTED TO FOLLOW SUIT, ACQUIRING THEIR OWN "DE FACTO
BRANCHES."  /19/ I BELIEVE THESE DEVELOPMENTS EXEMPLIFY THE "FURTHER
CONCENTRATION IN THE STRUCTURE OF AMERICAN BUSINESS" THAT SEC. 7 WAS
DESIGNED TO PREVENT.  ACCORDINGLY, I WOULD REVERSE THE JUDGMENT OF THE
DISTRICT COURT. 

/1/ RELATIONSHIPS LABELED "CORRESPONDENT BANKING" MAY CALL FOR
CAREFUL SCRUTINY AS THE SALE OF SPECIALIZED SERVICES BY THE
CORRESPONDING BANK SHADES INTO "CONSULTATION" BY THE CORRESPONDENT ON
EVERY BUSINESS DECISION OF SIGNIFICANCE.  CORRESPONDENT BANKING, LIKE
OTHER INTRA-INDUSTRY INTERACTION AMONG FIRMS OR THEIR TOP MANAGEMENT,
PROVIDES AN OPPORTUNITY BOTH FOR THE KIND OF EDUCATION AND SHARING OF
EXPERTISE THAT ULTIMATELY ENHANCES CONSUMER WELFARE AND FOR
"UNDERSTANDINGS" THAT INHIBIT, IF NOT FORECLOSE, THE RIVALRY THAT
ANTITRUST LAWS SEEK TO PROMOTE.  AS ONE COMMENTATOR ON COMMERCIAL
BANKING PRACTICES HAS OBSERVED: 

"(COMMUNICATION, ESPECIALLY WHEN IT COMES FROM THOSE AT THE TOP OF A
POWER HIERARCHY, TENDS TO FACILITATE CONFLICT RESOLUTION.  PERHAPS A
GREAT DEAL SHOULD NOT BE MADE OF THIS, BUT COMPETITION IS A FORM OF
CONFLICT AND, IN THE PRESENT CONTEXT, CONFLICT RESOLUTION IS A FORM OF
RESTRAINT ON COMPETITION."  PHILLIPS, COMPETITION, CONFUSION, AND
COMMERCIAL BANKING, 19 J. OF FINANCE 32, 42 (1964). 

SINCE THE RELATIONSHIP OF C& S TO THE 5-PERCENT BANKS GOES WELL
BEYOND ORDINARY "CORRESPONDENT BANKING," THIS CASE DOES NOT PRESENT AN
OCCASION FOR FURTHER EXAMINATION OF THE LAWFULNESS OF THES MORE LIMITED
INTERCONNECTIONS AMONG FIRMS. 

/2/ THE CONSUMER CREDIT OPERATING BULLETIN, 7 APP. E - 1024 (DX
311), IS ILLUSTRATIVE.  IT EXPLAINS WHAT BANK RECORDS SHOULD BE
ESTABLISHED, THE METHODS FOR ARRANGING A REPAYMENT PLAN, AND THE
PROCEDURES TO BE FOLLOWED IN PERFECTING A SECURITY INTEREST.  IN
ADDITION, THE MANUAL SETS FORTH C& S PRACTICE WITH RESPECT TO CHARGES
FOR LATE PAYMENTS, EXTENSIONS OF REPAYMENT DEADLINES, AND THE
NOTIFICATION OF A BORROWER'S EMPLOYER ABOUT REPAYMENT DELINQUENCY. 

/3/ AS INITIALLY ENACTED BY THE HOUSE, THE AMENDMENTS CONTAINED NO
ANTITRUST PROVISIONS.  SEE GENERALLY H.R.REP.  NO. 534, 89TH CONG., 1ST
SESS. (1956).  THESE WERE ADDED LATER BY THE SENATE BANKING AND
CURRENCY COMMITTEE AND SUBSEQUENTLY ADOPTED BY BOTH HOUSES.  SEE
S.REP.  NO. 1179, 89TH CONG., 2D SESS, 10 (1966). 

/4/ SEE LETTER FROM DEPUTY ATTORNEY GENERAL CLARK TO SEN. ROBERTSON,
REPRINTED AT 112 CONG. REC. 12385 (1966), AND ACCOMPANYING REMARKS BY
SEN. ROBERTSON, IBID. 

/5/ SEE S. REP. NO. 299, 89TH CONG., 1ST SESS., 1 - 7 (1965);
H.R.REP.  NO. 1221, 89TH CONG., 2D SESS., 4 (1966); 111 CONG. REC.
13304 - 13305 (1965) (REMARKS OF SEN. ROBERTSON); 112 CONG. REC. 2454
(1966) (REMARKS OF REP. CELLER). 

/6/ SEE UNITED STATES V. CROCKER-ANGLO NATIONAL BANK, 223 F.SUPP. 
849 (ND CAL. 1963); UNITED STATES V. MANUFACTURERS HANOVER TRUST CO.,
240 F.SUPP.  867 (SDNY 1965), CITED IN HEARINGS ON S. 1698 BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON BANKING AND CURRENCY, 89TH
CONG., 1ST SESS, 446, 463 (1965). 

/7/ SECTION 3 (A) HAD BEEN IN FORCE SINCE ENACTMENT OF THE BANK
HOLDING COMPANY ACT IN 1956.  THE 1966 AMENDMENT ADDED CLAUSE (2) TO
ITS PROVISIONS. 

/8/ SEE H.R.REP.  NO. 609, 84TH CONG., 1ST SESS., 12 - 13 (1955);
101 CONG. REC. 8028 (1955) (REMARKS OF REP. PATMAN).  IN THE FORM
INITIALLY ADOPTED BY THE HOUSE, THE ACT WOULD HAVE DEFINED AS A
SUBSIDIARY A BANK OVER WHICH ANOTHER COMPANY WAS FOUND BY THE FEDERAL
RESERVE BOARD TO "EXERCISE A CONTROLLING INFLUENCE."  THE SENATE
AMENDMENT SUBSTITUTED THE PROVISION ULTIMATELY ENACTED, THE REQUIREMENT
OF CONTROL OF THE ELECTION OF DIRECTORS.  SEE S.REP.  NO. 1095, 84TH
CONG., 1ST SESS., 5 (1955). 

/9/ THE REFERENCE TO INDIRECT OWNERSHIP, THOUGH CONTAINED IN SEC. 2
(A) OF THE 1956 ACT (DEFINING HOLDING COMPANY) WAS INADVERTENTLY
OMITTED FROM SEC. 2 (D).  SEE 70 STAT. 134.  THE 1966 AMENDMENTS
CORRECTED THE OMISSION.  SEE S.REP.  NO. 1179, 89TH CONG., 2D SESS., 8
(1966).     /10/ SECTION 2 (G) OF THE ACT DEFINED INDIRECT CONTROL OR
OWNERSHIP: 

" FOR THE PURPOSES OF THIS ACT-- 

"(1) SHARES OWNED OR CONTROLLED BY ANY SUBSIDIARY OF A BANK HOLDING
COMPANY SHALL BE DEEMED TO BE INDIRECTLY OWNED OR CONTROLLED BY SUCH
BANK HOLDING COMPANY; 

"(2) SHARES HELD OR CONTROLLED DIRECTLY OR INDIRECTLY BY TRUSTEES
FOR THE BENEFIT OF (A) A COMPANY, (B) THE SHAREHOLDERS OR MEMBERS OF A
COMPANY, OR (C) THE EMPLOYEES (WHETHER EXCLUSIVELY OR NOT) OF A
COMPANY, SHALL BE DEEMED TO BE CONTROLLED BY SUCH COMPANY; AND 

"(3) SHARES TRANSFERRED AFTER JANUARY 1, 1966, BY ANY BANK HOLDING
COMPANY (OR BY ANY COMPANY WHICH, BUT FOR SUCH TRANSFER, WOULD BE A
BANK HOLDING COMPANY) DIRECTLY OR INDIRECTLY TO ANY TRANSFEREE THAT IS
INDEBTED TO THE TRANSFEROR, OR HAS ONE OR MORE OFFICERS, DIRECTORS,
TRUSTEES, OR BENEFICIARIES IN COMMON WITH OR SUBJECT TO CONTROL BY THE
TRANSFEROR, SHALL BE DEEMED TO BE INDIRECTLY OWNED OR CONTROLLED BY THE
TRANSFEROR UNLESS THE BOARD, AFTER OPPORTUNITY FOR HEARING, DETERMINES
THAT THE TRANSFEROR IS NOT IN FACT CAPABLE OF CONTROLLING THE
TRANSFEREE."  THIS PROVISION WAS ADDED BY THE 1966 AMENDMENTS TO ADOPT
INTERPRETATIONS PREVIOUSLY MADE BY THE BOARD.  S.REP.  NO. 1179, SUPRA,
AT 8. 

/11/ CONGRESS SPECIFICALLY NOTED THE EXPANSION.  SEE S.REP.  NO. 91
1084, P. 6 (1970); H.R.REP.  NO. 91 - 1747, P. 12 (1970).  SEE ALSO
NOTE, THE BANK HOLDING COMPANY ACT AMENDMENTS OF 1970, 39 GEO. WASH.
L.REV.  1200, 1213 - 1214 (1971). 

/12/ MY CONCLUSION THAT THE AFFILIATIVE RELATIONSHIPS ARE NOT WITHIN
THE TERMS OF SEC. 3(A), AT LEAST PRIOR TO THE 1970 AMENDMENT, IS
FURTHER SUPPORTED BY THE SCOPE AND OUTCOME OF THE 1968 INVESTIGATION OF
C& S UNDERTAKEN BY THE FEDERAL RESERVE BOARD STAFF.  THE INVESTIGATION
WAS CONVENED SPECIFICALLY TO INQUIRE INTO A POSSIBLE VIOLATION OF SEC.
3.  THE STAFF WAS PRINCIPALLY CONCERNED WITH THE PATTERN OF OWNERSHIP
OF THE STOCK OF THE 5-PERCENT BANKS, ESPECIALLY BY C& S OFFICERS AND
EMPLOYEES.  ULTIMATELY THE STAFF FOUND THIS ACCEPTABLE, SO LONG AS C& S
DID NOT FINANCE THE PURCHASES.  THERE IS NO INDICATION, HOWEVER, THAT
THE STAFF CONCERNED ITSELF WITH COMMUNICATIONS BETWEEN C& S AND THE 5
PERCENT BANKS WITH RESPECT TO SUCH MATTERS AS INTEREST RATES, LOAN
REPAYMENT POLICIES, OR OTHER TERMS OF BUSINESS. 

/13/ THERE IS LITTLE DOUBT THAT PENT-UP CONSUMER DEMAND FOR
ADDITIONAL BANKS WOULD SOONER OR LATER INDUCE EFFORTS TO ORGANIZE NEW
ONES.  MORE QUESTIONABLE, HOWEVER, IS WHETHER REGULATORY AUTHORITIES
WOULD RESPOND PROMPTLY TO PERMIT NEW ENTRY.  IN GENERAL, REGULATORY
POLICY HAS BEEN THOUGHT TO RETARD FORMATION OF NEW BANKING
INSTITUTIONS.  SEE PELTZMAN, ENTRY IN COMMERCIAL BANKING, 8 J. LAW &
ECON.  11 (1965). 

/14/ THE RECORD DEMONSTRATES THAT SUCH A CHAIN OF EVENTS IS
POSSIBLE.  CITIZENS & SOUTHERN BANK OF STONE MOUNTAIN, ORGANIZED IN
1957 WITH C& S ASSISTANCE, FUNCTIONED AS A CORRESPONDENT ASSOCIATE FROM
1959 UNTIL 1970.  AT THAT TIME IT DECLINED AN OFFER OF ACQUISITION BY
C& S AND BECAME INDEPENDENT OF THE C& S SYSTEM.  APPELLEES HAVE ARGUED
THAT STONE MOUNTAIN REPRESENTS A UNIQUE CASE BECAUSE A MAJORITY OF
VOTING STOCK REMAINED IN THE HANDS OF A SINGLE FAMILY NOT INTIMATELY
TIED TO THE C& S SYSTEM.  THIS CONTENTION IS NOT WHOLLY SUPPORTED BY
THE RECORD, SINCE IN HIS TRIAL TESTIMONY MR. MILLS LANE, PRESIDENT OF
C& S FROM 1946 TO 1970, REFERRED TO THREE OTHER BANKS HAVING A SIMILAR
STRUCTURE OF OWNERSHIP.  (2 APP. 378 - 379, REFERRING TO PELHAM,
FAYETTEVILLE, HOGANSVILLE).  THE EXAMPLE OF STONE MOUNTAIN DOES, IN ANY
EVENT, DEMONSTRATE THAT SPONSORSHIP CAN OCCUR UNDER CONDITIONS
ULTIMATELY LEADING TO INDEPENDENCE OF THE SPONSORED INSTITUTION. 

/15/ THE DISTRICT COURT MADE NO FINDING AS TO THE RELEVANT
GEOGRAPHIC MARKET, ACCEPTING THE GOVERNMENT'S CONTENTIONS ARGUENDO IN
DECIDING THE CASE.  THE COURT APPARENTLY DOES THE SAME.  A REPORT
PREPARED BY THE GOVERNMENT'S EXPERT WITNESS CONCLUDED THAT WHILE THE
ATLANTA STANDARD METROPOKITAN STATISTICAL AREA WAS TOO LARGE TO BE
CONSIDERED AN INTEGRAL GEOGRAPHIC MARKET, THE CONSTITUENT COUNTIES OF
DE KALB AND FULTON WERE "REASONABLE GEOGRAPHIC AREAS WITHIN WHICH IT IS
APPROPRIATE TO ANALYZE THE COMPETITIVE EFFECTS OF THE PROPOSED
MERGERS."  (4 APP. E-83).  THIS IS AN APPROXIMATION, OF COURSE, SINCE
THE SAME REPORT REVEALED THAT A NUMBER OF DE KALB RESIDENTS USE FULTON
COUNTY BANKS, THUS SUGGESTING THAT IN CERTAIN RESPECTS DE KALB AND
FULTON COUNTY BANKS COMPETE FOR THE SAME BUSINESS.  ACCORDINGLY, IT
APPEARS THAT DEFINING THE GEOGRAPHIC MARKET TO INCLUDE BOTH DE KALB AND
FULTON COUNTIES WOULD BE JUSTIFIED UNDER OUR CASES.  SEE UNITED STATES
V. PHILLIPSBURG NATIONAL BANK & TRUST CO., 399 U.S. 350 (1970); UNITED
STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321 (1963). 

/16/ THREE OF THE 5-PERCENT BANKS--SANDY SPRINGS, CHAMBLEE, AND
TUCKER--HAD DEPOSITS EXCEEDING $15 MILLION AS OF JANUARY 1, 1970. 
NORTH FULTON, PARK NATIONAL, AND SOUTH DE KALB WERE SMALLER AND MORE
RECENTY ORGANIZED, BUT ALL HAVE EXPERIENCED VIGOROUS GROWTH.  THE
AVERAGE ANNUAL RATE OF DEPOSIT GROWTH FOR THE TWO YEARS PRECEDING
JANUARY 1, 1970, WAS 102% FOR NORTH FULTON AND 50% FOR PARK NATIONAL,
IN CONTRAST TO A NATIONAL AVERAGE RATE FOR ALL COMMERCIAL BANK DEPOSITS
DURING THE SAME PERIOD OF SLIGHTLY MORE THAN 10%.  SOUTH DE KALB,
ORGANIZED IN LATE 1969, HAD MORE THAN DOUBLED ITS DEPOSITS FROM $1.5 TO
$3 MILLION DURING THE FIRST HALF OF 1970.  (5 APPL E-422, E-546.) 

/17/ SEE N. 16, SUPRA. 

/18/ OFFICERS OF BOTH C& S AND THE 5-PERCENT BANKS TESTIFIED THAT
THEY HAD NOT CONTEMPLATED A SEVERANCE OF RELATIONS, BUT THIS TESTIMONY
DOES NOT ESTABLISH WHAT WOULD HAPPEN IF THE ACQUISITIONS WERE
ENJOINED.  HAD THE MANAGEMENTS TESTIFIED THAT THEY WOULD NOT CONSIDER
SEVERANCE UNDER ANY CIRCUMSTANCES, SUCH DECLARATIONS OF AN INTENTION TO
ESCHEW A COURSE DICTATED BY ECONOMIC SELF-INTEREST WOULD HAVE TO BE
VIEWED WITH SKEPTICISM.  SEE UNITED STATES V. FALSTAFF BREWING CORP.,
410 U.S. 526, 568 - 570 (1973) (MARSHALL, J., CONCURRING IN RESULT). 

WHETHER THE 5-PERCENT BANKS WOULD HAVE BEEN FORMED AT ALL HAD THEIR
PRINCIPALS EXPECTED THE CLAYTON ACT TO BAR ULTIMATE ACQUISITION BY C& S
IS A DIFFERENT QUESTION.  I AM NOT TROUBLED BY IT FOR ESSENTIALLY THE
SAME REASONS THAT HAVE LED ME TO CONCLUDE ABOVE THAT ENJOINING
CONTINUATION OF CORRESPONDENT ASSOCIATE RELATIONSHIPS WOULD NOT DETER
SPONSORSHIP OF DE FACTO BRANHES UNDER STATE LAW RESTRICTIONS ON DE JURE
BRANCHING.  SEE SUPRA, AT 143 - 144. 

/19/ THE RECORD INDICATES THAT AT THE TIME C& S APPLIED FOR
REGULATORY APPROVAL OF THE ACQUISITIONS, ITS TWO LARGEST COMPETITORS,
FIRST NATIONAL BANK OF ATLANTA AND TRUST COMPANY OF GEORGIA, HAD SOUGHT
AND IN SOME CASES HAD OBTAINED, APPROVAL FOR SIMILAR ACQUISITIONS OF
AFFILIATED BANKS.  1 APP. E-39. 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEFS WERE SOLICITOR GENERAL BORKS, ASSISTANT ATTORNEY GENERAL KAUPER,
GERALD P. NORTON, HOWARD E. SHAPIRO, AND GEORGE EDELSTEIN. 

DANIEL B. HODGSON ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEFS WERE MICHAEL A. DOYLE, WALTER M. GRANT, RICHARD A. POSNER, AND
PHILIP L. ROACHE, JR. 

(CUBBEDGE SNOW AND CHARLES M. STAPLETON FILED A BRIEF FOR THE
INDEPENDENT BANKERS ASSOCIATION OF GEORGIA, INC., AS AMICUS CURIAE.) 
..END :



















TWENTIETH CENTURY MUSIC CORP. V. AIKEN, 422 U.S. 151 


       TWENTIETH CENTURY MUSIC CORP. ET AL. V. AIKEN

     CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 74 - 452.  ARGUED APRIL 21, 1975--DECIDED JUNE 17,
1975;

           500 F.2D 127, AFFIRMED. 


PETITIONERS' COPYRIGHTED SONGS WERE RECEIVED ON THE RADIO IN
RESPONDENT'S FOOD SHOP FROM A LOCAL BROADCASTING STATION, WHICH WAS
LICENSED BY THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS
TO PERFORM THE SONGS, BUT RESPONDENT HAD NO SUCH LICENSE.  PETITIONERS
THEN SUED RESPONDENT FOR COPYRIGHT INFRINGEMENT.  THE DISTRICT COURT
GRANTED AWARDS, BUT THE COURT OF APPEALS REVERSED.  HELD:  RESPONDENT
DID NOT INFRINGE UPON PETITIONERS' EXCLUSIVE RIGHT, UNDER THE COPYRIGHT
ACT, "(TO PERFORM THE COPYRIGHTED WORK PUBLICLY FOR PROFIT," SINCE THE
RADIO RECEPTION DID NOT CONSTITUTE A "PERFORMANCE" OF THE COPYRIGHTED
SONGS.  FORTNIGHTLY CORP. V. UNITED ARTISTS, 392 U.S. 390; TELE
PROMPTER CORP. V. CBS, 415 U.S. 394.  TO HOLD THAT RESPONDENT
"PERFORMED" THE COPYRIGHTED WORKS WOULD OBVIOUSLY RESULT IN A WHOLLY
UNENFORCEABLE REGIME OF COPYRIGHT LAW, AND WOULD ALSO BE HIGHLY
INEQUITABLE, SINCE (SHORT OF KEEPING HIS RADIO TURNED OFF) ONE IN
RESPONDENT'S POSITION WOULD BE UNABLE TO PROTECT HIMSELF FROM
INFRINGEMENT LIABILITY.  SUCH A RULING, MOREOVER, WOULD AUTHORIZE THE
SALE OF AN UNTOLD NUMBER OF LICENSES FOR WHAT IS BASICALLY A SINGLE
RENDITION OF A COPYRIGHTED WORK, THUS CONFLICTING WITH THE BALANCED
PURPOSE OF THE COPYRIGHT ACT OF ASSURING THE COMPOSER AN ADEQUATE
RETURN FOR THE VALUE OF HIS COMPOSITION WHILE AT THE SAME TIME
PROTECTING THE PUBLIC FROM OPPRESSIVE MONOPOLIES.  PP. 154 - 164. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
WHITE, MARSHALL, POWELL, AND REHNQUIST, JJ., JOINED.  BLACKMUN, J.,
FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 164.  BURGER, C.J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P.
167. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE RECEPTION OF A
RADIO BROADCAST OF A COPYRIGHTED MUSICAL COMPOSITION CAN CONSTITUTE
COPYRIGHT INFRINGEMENT, WHEN THE COPYRIGHT OWNER HAS LICENSED THE
BROADCASTER TO PERFORM THE COMPOSITION PUBLICLY FOR PROFIT. 

        I 

THE RESPONDENT GEORGE AIKEN OWNS AND OPERATES A SMALL FAST-SERVICE
FOOD SHOP IN DOWNTOWN PITTSBURGH, PENNSYLVANIA, KNOWN AS " GEORGE
AIKEN'S CHICKEN."  SOME CUSTOMERS CARRY OUT THE FOOD THEY PURCHASE,
WHILE OTHERS REMAIN AND EAT AT COUNTERS OR BOOTHS.  USUALLY THE "CARRY
OUT" CUSTOMERS ARE IN THE RESTAURANT FOR LESS THAN FIVE MINUTES, AND
THOSE WHO EAT THERE SELDOM REMAIN LONGER THAN 10 OR 15 MINUTES. 

A RADIO WITH OUTLETS TO FOUR SPEAKERS IN THE CEILING RECEIVES
BROADCASTS OF MUSIC AND OTHER NORMAL RADIO PROGRAMING AT THE
RESTAURANT.  AIKEN USUALLY TURNS ON THE RADIO EACH MORNING AT THE START
OF BUSINESS.  MUSIC, NEWS, ENTERTAINMENT, AND COMMERCIAL ADVERTISING
BROADCAST BY RADIO STATIONS ARE THUS HEARD BY AIKEN, HIS EMPLOYEES, AND
HIS CUSTOMERS DURING THE HOURS THAT THE ESTABLISHMENT IS OPEN FOR
BUSINESS. 

ON MARCH 11, 1972, BROADCASTS OF TWO COPYRIGHTED MUSICAL
COMPOSITIONS WERE RECEIVED ON THE RADIO FROM A LOCAL STATION WHILE
SEVERAL CUSTOMERS WERE IN AIKEN'S ESTABLISHMENT.  PETITIONER TWENTIETH
CENTURY MUSIC CORP. OWNS THE COPYRIGHT ON ONE OF THESE SONGS, " THE
MORE I SEE YOU"; PETITIONER MARY BOURNE THE COPYRIGHT ON THE OTHER, "
ME AND MY SHADOW."  PETITIONERS ARE MEMBERS OF THE AMERICAN SOCIETY OF
COMPOSERS, AUTHORS AND PUBLISHERS (ASCAP), AN ASSOCIATION THAT LICENSES
THE PERFORMING RIGHTS OF ITS MEMBERS TO THEIR COPYRIGHTED WORKS.  THE
STATION THAT BROADCAST THE PETITIONERS' SONGS WAS LICENSED BY ASCAP TO
BROADCAST THEM.  /1/ AIKEN, HOWEVER, DID NOT HOLD A LICENSE FROM
ASCAP. 

THE PETITIONERS SUED AIKEN IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF PENNSYLVANIA TO RECOVER FOR COPYRIGHT
INFRINGEMENT.  THEIR COMPLAINT ALLEGED THAT THE RADIO RECEPTION IN
AIKEN'S RESTAURANT OF THE LICENSED BROADCASTS INFRINGEMENT.  THEIR
COMPLAINT ALLEGED THAT THE RADIO RECEPTION IN AIKEN'S RESTAURANT OF THE
LICENSED BROADCASTS INFRINGED THEIR EXCLUSIVE RIGHTS TO "PERFORM" THEIR
COPYRIGHTED WORKS IN PUBLIC FOR PROFIT.  THE DISTRICT JUDGE AGREED, AND
GRANTED STATUTORY MONETARY AWARDS FOR EACH INFRINGEMENT.  356 F.SUPP. 
271.  THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT REVERSED
THAT JUDGMENT, 500 F.2D 127, HOLDING THAT THE PETITIONERS'  CLAIMS
AGAINST THE RESPONDENT WERE FORECLOSED BY THIS COURT'S DECISIONS IN
FORTNIGHTLY CORP. V. UNITED ARTISTS, 392 U.S. 390, AND TELEPROMPTER
CORP. V. CBS, 415 U.S. 394.  WE GRANTED CERTIORARI.  419 U.S. 1067. 

II 

THE COPYRIGHT ACT OF 1909, 35 STAT. 1075, AS AMENDED, 17 U.S.C. SEC.
1 ET SEQ., /2/ GIVES TO A COPYRIGHT HOLDER A MONOPOLY LIMITED TO
SPECIFIED "EXCLUSIVE" RIGHTS IN HIS COPYRIGHTED WORKS.  /3/  AS THE
COURT EXPLAINED IN FORTNIGHTLY CORP. V. UNITED ARTISTS, SUPRA: 

     " THE COPYRIGHT ACT DOES NOT GIVE A COPYRIGHT HOLDER CONTROL

  OVER ALL USES OF HIS COPYRIGHTED WORK.  INSTEAD, SEC. 1 OF THE

  ACT ENUMERATES SEVERAL 'RIGHTS' THAT ARE MADE 'EXCLUSIVE' TO THE

  HOLDER OF THE COPYRIGHT.  IF A PERSON, WITHOUT AUTHORIZATION FROM

THE COPYRIGHT HOLDER, PUTS A COPYRIGHTED WORK TO A USE WITHIN THE

  SCOPE OF ONE OF THES 'EXCLUSIVE RIGHTS,' HE INFRINGES THE

  COPYRIGHT.  IF HE PUTS THE WORK TO A USE NOT ENUMERATED IN SEC.

  1, HE DOES NOT INFRINGE."  392 U.S., AT 393 - 395. 

ACCORDINGLY, IF AN UNLICENSED USE OF A COPYRIGHTED WORK DOES NOT
CONFLICT WITH AN "EXCLUSIVE" RIGHT CONFERRED BY THE STATUTE, IT IS NO
INFRINGEMENT OF THE HOLDER'S RIGHTS.  NO LICENSE IS REQUIRED BY THE
COPYRIGHT ACT FOR EXAMPLE, TO SING A COPYRIGHTED LYRIC IN THE SHOWER. 
/4/ 

THE LIMITED SCOPE OF THE COPYRIGHT HOLDER'S STATUTORY MONOPOLY, LIKE
THE LIMITED COPYRIGHT DURATION REQUIRED BY THE CONSTITUTION, /5/
REFLECTS A BALANCE OF COMPETING CLAIMS UPON THE PUBLIC INTEREST:
CREATIVE WORK IS TO BE ENCOURAGED AND REWARDED, BUT PRIVATE MOTIVATION
MUST ULTIMATELY SERVE THE CAUSE OF PROMOTING BROAD PUBLIC AVAILABILITY
OF LITERATURE, MUSIC, AND THE OTHER ARTS.  /6/ THE IMMEDIATE EFFECT OF
OUR COPYRIGHT LAW IS TO SECURE A FAIR RETURN FOR AN "AUTHOR'S" CREATIVE
LABOR.  BUT THE ULTIMATE AIM IS, BY THIS INCENTIVE, TO STIMULATE
ARTISTIC CREATIVITY FOR THE GENERAL PUBLIC GOOD.  " THE SOLE INTEREST
OF THE UNITED STATES AND THE PRIMARY OBJECT INCONFERRING THE MONOPOLY,"
THIS COURT HAS SAID, "LIE IN THE GENERAL BENEFITS DERIVED BY THE
PUBLIC FROM THE LABORS OF AUTHORS."  FOS FILM CORP. V. DOYAL, 286 U.S.
123, 127.  SEE KENDALL V. WINSOR, 21 HOW.  322, 327 - 328; GRANT V.
RAYMOND, 6 PET. 218, 241 - 242.  WHEN TECHNOLOGICAL CHANGE HAS RENDERED
ITS LITRAL TERMS AMBIGUOUS, THE COPYRIGHT ACT MUST BE CONSTRUED IN
LIGHT OF THIS BASIC PURPOSE.  /7/ 

THE PRECISE STATUTORY ISSUE IN THE PRESENT CASE IS WHETHER AIKEN
INFRINGED UPON THE PETITIONERS' EXCLUSIVE RIGHT, UNDER THE COPYRIGHT
ACT OF 1909, 17 U.S.C. SEC. 1 (E), "(TO PERFORM THE COPYRIGHTED WORK
PUBLICLY FOR PROFIT."  /8/ WE MAY ASSUME THAT THE RADIO RECEPTION OF
THE MUSICAL COMPOSITIONS IN AIKEN'S RESTAURANT OCCURRED "PUBLICLY FOR
PROFIT."  SEE HERBERT V. SHANLEY CO., 242 U.S. 5919 THE DISPOSITIVE
QUESTION, THEREFORE, IS WHETHER THIS RADIO RECEPTION CONSTITUTED A
"PERFORMANCE" OF THE COPYRIGHTED WORKS. 

WHEN THIS STATUTORY PROVISION WAS ENACTED IN 1909, ITS PURPOSE WAS
TO PROHIBIT UNAUTHORIZED PERFORMANCES OF COPYRIGHTED MUSICAL
COMPOSITIONS IN SUCH PUBLIC PLACES AS CONCERT HALLS, THEATERS,
RESTAURANTS, AND CABARETS.  SEE H.R.REP.  NO. 2222, 60TH CONG., 2D
SESS. (1909).  AN ORCHESTRA OR INDIVIDUAL INSTRUMENTALIST OR SINGER WHO
PERFORMS A COPYRIGHTED MUSICAL COMPOSITION IN SUCH A PUBLIC PLACE
WITHOUT A LICENSE IS THUS CLEARLY AN INFRINGER UNDER THE STATUTE.  THE
ENTREPRENEUR WHO SPONSORS SUCH A PUBLIC PERFORMANCE FOR PROFIT IS ALSO
AN INFRINGER--DIRECT OR CONTRIBUTORY.  SEE GENERALLY 1 & 2 M. NIMMER,
COPYRIGHT SEC. 102, 134 (1974).  BUT IT WAS NEVER CONTEMPLATED THAT THE
MEMBERS OF THE AUDIENCE WHO HEARD THE COMPOSITION WOULD THEMSELVES ALSO
BE SIMULTANEOUSLY "PERFORMING," AND THUS ALSO GUILTY OF INFRINGEMENT. 
THIS MUCH IS COMMON GROUND. 

WITH THE ADVENT OF COMMERCIAL RADIO, A BROADCAST MUSICAL COMPOSITION
COULD BE HEARD INSTANTANEOUSLY BY AN ENORMOUS AUDIENCE OF DISTANT AND
SEPARATE PERSONS OPERATING THEIR RADIO RECEIVING SETS TO RECONVERT THE
BROADCAST TO AUDIBLE FORM.  /9/  ALTHOUGH CONGRESS DID NOT REVISE THE
STATUTORY LANGUAGE, COPYRIGHT LAW WAS QUICK TO ADAPT TO PREVENT THE
EXPLOITATION OF PROTECTED WORKS THROUGH THE NEW ELECTRONIC TECHNOLOGY. 
IN SHORT, IT WAS SOON ESTABLISHED IN THE FEDERAL COURTS THAT THE
BROADCAST OF A COPYRIGHTED MUSICAL COMPOSITION BY A COMMERCIAL RADIO
STATION WAS A PUBLIC PERFORMANCE OF THAT COMPOSITION FOR PROFIT--AND
THUS AN INFRINGEMENT OF THE COPYRIGHT IF NOT LICENSED.  IN ONE OF THE
EARLIEST CASES SO HOLDING, THE SICTH CIRCUIT COURT OF APPEALS SAID: 

     " WHILE THE FACT THAT THE RADIO WAS NOT DEVELOPED AT THE TIME

THE COPYRIGHT ACT...WAS ENACTED MAY RAISE SOME QUESTION AS TO

  WHETHER IT PROPERLY COMES WITHIN THE PURVIEW OF THE STATUTE, IT

  IS NOT BY THAT FACT ALONE EXCLUDED FROM THE STATUTE.  IN OTHER

  WORDS, THE STATUTE MAY BE APPLIED TO NEW SITUATIONS NOT

  ANTICIPATED BY CONGRESS, IF, FAIRLY CONSTRUED, SUCH SITUATIONS

  COME WITHIN ITS INTENT AND MEANING.  . . . WHILE STATUTES SHOULD

  NOT BE STRETCHED TO APPLY TO NEW SITUATIONS NOT FAIRLY WITHIN

  THEIR SCOPE, THEY SHOULD NOT BE SO NARROWLY CONSTRUED AS TO

  PERMIT THEIR EVASION BECAUSE OF CHANGING HABITS DUE TO NEW

  INVENTIONS AND DISCOVERIES. 

     " A PERFORMANCE, IN OUR JUDGMENT, IS NO LESS PUBLIC BECAUSE
THE

  LISTENERS ARE UNABLE TO COMMUNICATE WITH ONE ANOTHER, OR ARE NOT

  ASSEMBLED WITHIN AN INCLOSURE, OR GATERED TOGETHER IN SOME OPEN

  STADIUM OR PARK OR OTHER PUBLIC PLACE.  NOR CAN A PERFORMANCE, IN

  OUR JUDGMENT, BE DEEMED PRIVATE BECAUSE EACH LISTENER MAY ENJOY

  IT ALONE IN THE PRIVACY OF HIS HOME. 

     ##HC159 RADIO BROADCASTING IS INTENDED TO, AND IN FACT DOES,

  REACH A VERY MUCH LARGER NUMBER OF THE PUBLIC AT THE MOMENT OF

 THE RENDITION THAN ANY OTHER MEDIUM OF PERFORMANCE.  THE ARTIST

  IS CONSCIOUSLY ADDRESSING A GREAT, THOUGH UNSEEN AND WIDELY

  SCATTERED, AUDIENCE, AND IS THEREFORE PARTICIPATING IN A PUBLIC

  PERFORMANCE."  JEROME H. REMICK & CO. V. AMERICAN AUTOMOBILE

  ACCESSORIES CO., 5 F.2D 411.  411 - 412. 

SEE ALSO M. WITMARK & SONS V. L. BAMBERGER & CO., 291 F. 776 (NJ);
JEROME H. REMICK & CO. V. GENERAL ELECTRIC CO., 4 F.2D 160 (SDNY);
JEROME H. REMICK & CO. V. GENERAL ELECTRIC CO., 16 F.2D 829 (SDNY);
ASSOCIATED MUSIC PUBLISHERS, INC. V. DEBS MEMORIAL RADIO FUND, 141 F.2D
852 (CA2).  CF. CHAPPELL & CO., LTD. V. ASSOCIATED RADIO CO. OF
AUSTRALIA, LTD., (1925) VICT.  L.R. 350; MESSAGER V. BRITISH
BROADCASTING CO., LTD., (1927) 2 K. B. 543, REV'D ON OTHER GROUNDS,
(1928) 1 K. B. 660, AFF'D, (1929) A. C. 151.  SEE GENERALLY CALDWELL,
THE BROADCASTING OF COPYRIGHTED WORKS, 1 J. AIR L. 584 (1930); NOTE, 75
U. PA. L. REV. 549 (1927); NOTE, 39 HARV. L. REV. 269 (1925). 

IF, BY ANALOGY TO A LIVE PERFORMANCE IN A CONCERT HALL OR CABARET, A
RADIO STATION "PERFORMS" A MUSICAL COMPOSITION WHEN IT BROADCASTS IT,
THE SAME ANALOGY WOULD SEEM TO REQUIRE THE CONCLUSION THAT THOSE WHO
LISTEN TO THE BROADCAST THROUGH THE USE OF RADIO RECEIVERS DO NOT
PERFORM THE COMPOSITION.  AND THAT IS EXACTLY WHAT THE EARLY FEDERAL
CASES HELD.  " CERTAINLY THOSE WHO LISTEN DO NOT PERFORM, AND THEREFORE
DO NOT INFRINGE."  JEROME H. REMICK & CO. V. GENERAL ELECTRIC O., 16
F.2D, AT 829.  " ONE WHO MANUALLY OR BY HUMAN AGENCY MERELY ACTUATES
ELECTRICAL INSTRUMENTALITIES, WHEREBY INAUDIBLE ELEMENTS THAT ARE
OMNIPRESENT IN THE AIR ARE MADE AUDIBLE TO PERSONS WHO ARE WITHIN
HEARING, DOES NOT 'PERFORM' WITHIN THE MEANING OF THE COPYRIGHT LAW." 
BUCK V. DEBAUM, 40 F.2D 734, 735 (SD CAL. 1929). 

SUCH WAS THE STATE OF THE LAW WHEN THIS COURT IN 1931 DECIDED BUCK
V. JEWELL-LA SALLE REALTY CO., 283 U.S. 191.  IN THAT CASE THE COURT
WAS CALLED UPON TO ANSWER THE FOLLOWING QUESTION CERTIFIED BY THE
EIGHTH CIRCUIT COURT OF APPEALS:  " DO THE ACTS OF A HOTEL PROPRIETOR,
IN MAKING AVAILABLE TO HIS GUESTS, THROUGH THE INSTRUMENTALITY OF A
RADIO RECEIVING SET AND LOUD SPEAKERS INSTALLED IN HIS HOTEL AND UNDER
HIS CONTROL AND FOR THE ENTERTAINMENT OF HIS GUESTS, THE HEARING OF A
COPYRIGHTED MUSICAL COMPOSITION WHICH HAS BEEN BROADCAST FROM A RADIO
TRANSMITTING STATION, CONSTITUTE A PERFORMANCE OF SUCH COMPOSITION
WITHIN THE MEANING OF 17 U.S.C. SEC. 1 (E)?"  THE COURT ANSWERED THE
CERTIFIED QUESTION IN THE AFFIRMATIVE.  IN STATING THE FACTS OF THE
CASE, HOWEVER, THE COURT'S OPINION MADE CLEAR THAT THE BROADCASTER OF
THE MUSICAL COMPOSITION WAS NOT LICENSED TO PERFORM IT, AND AT LEAST
TWICE IN THE COURSE OF ITS OPINION THE COURT INDICATED THAT THE ANSWER
TO THE CERTIFIED QUESTION MIGHT HAVE BEEN DIFFERENT IF THE BROADCAST
ITSELF HAD BEEN AUTHORIZED BY THE COPYRIGHT HOLDER.  /10/ 

WE MAY ASSUME FOR PRESENT PURPOSES THAT THE JEWEL-LA SALLE DECISION
RETAINS AUTHORITATIVE FORCE IN A FACTUAL SITUATION LIKE THAT IN WHICH
IT AROSE.  /11/ BUT, AS THE COURT OF APPEALS IN THIS CASE PERCEIVED,
THIS COURT HAS IN TWO RECENT DECISIONS EXPLICITLY DISAVOWED THE VIEW
THAT THE RECEPTION OF AN ELECTRONIC BROADCAST CAN CONSTITUTE A
PERFORMANCE, WHEN THE BROADCASTER HIMSELF IS LICENSED TO PERFORM THE
COPYRIGHTED MATERIAL THAT HE BROADCASTS.  FORTNIGHTLY CORP. V. UNITED
ARTISTS, 392 U.S. 390; TELE-PROMPTER CORP. V. CBS, 415 U.S. 394. 

THE LANGUAGE OF THE COURT'S OPINION IN THE FORTNIGHTLY CASE COULD
HARDLY BE MORE EXPLICITLY DISPOSITIVE OF THE QUESTION NOW BEFORE US: 

     " THE TELEVISION BROADCASTER IN ONE SENSE DOES LESS THAN THE

  EXHIBITOR OF A MOTION PICTURE OR STAGE PLAY; HE SUPPLIES HIS

  AUDIENCE NOT WITH VISIBLE IMAGES BUT ONLY WITH ELECTRONIC

  SIGNALS.  THE VIEWER CONVERSELY DOES MORE THAN A MEMBER OF A

  THEATER AUDIENCE; HE PROVIDES THE EQUIPMENT TO CONVERT ELECTRONIC

  SIGNALS INTO AUDIBLE SOUND AND VISIBLE IMAGES.  DESPITE THESE

  DEVIATIONS FROM THE CONVENTIONAL SITUATION CONTEMPLATED BY THE

  FRAMERS OF THE COPYRIGHT ACT, BROADCASTERS HAVE BEEN JUDICIALLY

  TREATED AS EXHIBITORS, AND VIEWERS AS MEMBERS OF A THEATER

  AUDIENCE.  BROADCASTERS PERFORM.  VIEWERS DO NOT PERFORM.  THUS,

  WHILE BOTH BROADCASTER AND VIEWER PLAY CRUCIAL ROLES IN THE TOTAL

  TELEVISION PROCESS, A LINE IS DRAWN BETWEEN THEM.  ONE IS TREATED

  AS ACTIVE PERFORMER; THE OTHER, AS PASSIVE BENEFICIARY."  392

  U.S., AT 398 - 399 (FOOTNOTES OMITTED). 

THE FORTNIGHTLY AND TELEPROMPTER CASES, TO BE SURE, INVOLVED
TELEVISION, NOT RADIO, AND THE COPYRIGHTED MATERIALS THERE IN ISSUE
WERE LITERARY AND DRAMATIC WORKS, NOT MUSICAL COMPOSITIONS.  BUT, AS
THE COURT OF APPEALS CORRECTLY OBSERVED, "(IF FORTNIGHTLY, WITH ITS
ELABORATE CATV PLANT AND TELEPROMPTER WITH ITS EVEN MORE SOPHISTICATED
AND EXTENDED TECHNOLOGICAL AND PROGRAMMING FACILITIES WERE NOT
'PERFORMING,' THEN LOGIC DICTATES THAT NO 'PERFORMANCE' RESULTED WHEN
THE (RESPONDENT) MERELY ACTIVATED HIS RESTAURANT RADIO."  500 F.2D, AT
137.     TO HOLD IN THIS CASE THAT THE RESPONDENT AIKEN "PERFORMED" THE
PETITIONERS' COPYRIGHTED WORKS WOULD THUS REQUIRE US TO OVERRULE TWO
VERY RECENT DECISIONS OF THIS COURT.  BUT SUCH A HOLDING WOULD MORE
THAN OFFEND THE PRINCIPLES OF STARE DECISIS; IT WOULD RESULT IN A
REGIME OF COPYRIGHT LAW THAT WOULD BE BOTH WHOLLY UNENFORCEABLE AND
HIGHLY INEQUITABLE. 

THE PRACTICAL UNENFORCEABILITY OF A RULING THAT ALL OF THOSE IN
AIKEN'S POSITION ARE COPYRIGHT INFRINGERS IS SELF-EVIDENT.  ONE HAS
ONLY TO CONSIDER THE COUNTLESS BUSINESS ESTABLISHMENTS IN THIS COUNTRY
WITH RADIO OR TELEVISION SETS ON THEIR PREMISES--BARS, BEAUTY SHOPS,
CAFETERIAS, CAR WASHES, DENTISTS' OFFICES, AND DRIVE-INS--TO REALIZE
THE TOTAL FUTILITY OF ANY EVENHANDED EFFORT ON THE PART OF COPYRIGHT
HOLDERS TO LICENSE EVEN A SUBSTANTIAL PERCENTAGE OF THEM.  /12/ 

AND A RULING THAT A RADIO LISTENER "PERFORMS" EVERY BROADCAST THAT
HE RECEIVES WOULD BE HIGHLY INEQUITABLE FOR TWO DISTINCT REASONS. 
FIRST, A PERSON IN AIKEN'S POSITION WOULD HAVE NO SURE WAY OF
PROTECTING HIMSELF FROM LIABILITY FOR COPYRIGHT INFRINGEMENT EXCEPT BY
KEEPING HIS RADIO SET TURNED OFF.  FOR EVEN IF HE SECURED A LECENSE
FROM ASCAP, HE WOULD HAVE NO WAY OF EITHER FORESEEING OR CONTROLLING
THE BROADCAST OF COMPOSITIONS WHOSE COPYRIGHT WAS HELD BY SOMEONE
ELSE.  /13/ SECONDLY, TO HOLD THAT ALL IN AIKEN'S POSITION "PERFORMED"
THESE MUSICAL COMPOSITIONS POSITIONS WOULD BE TO AUTHORIZE THE SALE OF
AN UNTOLD NUMBER OF LICENSES FOR WHAT IS BASICALLY A SINGLE PUBLIC
RENDITION OF A COPYRIGHTED WORK.  THE EXACTION OF SUCH MULTIPLE TRIBUTE
WOULD GO FAR BEYOND WHAT IS REQUIRED FOR THE ECONOMIC PROTECTION OF
COPYRIGHT OWNERS, /14/ AND WOULD BE WHOLLY AT ODDS WITH THE BALANCED
CONGRESSIONAL PURPOSE BEHIND 17 U.S.C. SEC. 1 (E): 

     " THE MAIN OBJECT TO BE DESIRED IN EXPANDING COPYRIGHT

  PROTECTION ACCORDED TO MUSIC HAS BEEN TO GIVE TO THE COMPOSER AN

  ADEQUATE RETURN FOR THE VALUE OF HIS COMPOSITION, AND IT HAS BEEN

  A SERIOUS AND A DIFFICULT TASK TO COMBINE THE PROTECTION OF THE

  COMPOSER WITH THE PROTECTION OF THE PUBLIC, AND TO SO FRAME AN

  ACT THAT IT WOULD ACCOMPLISH THE DOUBLE PURPOSE OF SECURING TO

  THE COMPOSER AN ADEQUATE RETURN FOR ALL USE MADE OF HIS

  COMPOSITION AND AT THE SAME TIME PREVENT THE FORMATION OF

  OPPRESSIVE MONOPOLIES, WHICH MIGHT BE FOUNDED UPON THE VERY

  RIGHTS GRANTED TO THE COMPOSER FOR THE PURPOSE OF PROTECTING HIS

  INTERESTS."  H.R.REP.  NO. 2222, 60TH CONG., 2D SESS., 7 (1909). 

FOR THE REASONS STATED IN THIS OPINION, THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED. 

                            IT IS SO ORDERED. 

/1/ FOR A DISCUSSION OF ASCAP, SEE K-91, INC. V. GERSHWIN PUBLISHING
CORP., 372 F.2D 1 (CA9). 

ASCAP'S LICENSE AGREEMENT WITH THE PITTSBURGH BROADCASTING STATION
CONTAINED, AS IS CUSTOMARY, THE FOLLOWING PROVISION:  " NOTHING HEREIN
CONTAINED SHALL BE CONSTRUED AS AUTHORIZING LICENSEE (WKJF- FM) TO
GRANT TO OTHERS ANY RIGHT TO REPRODUCE OR PERFORM PUBLICLY FOR PROFIT
BY ANY MEANS, METHOD OR PROCESS WHATSOEVER, ANY OF THE MUSICAL
COMPOSITIONS LICENSE HEREUNDER OR AS AUTHORIZING ANY RECEIVER OF ANY
RADIO BROADCAST TO PERFORM PUBLICLY OR REPRODUCE THE SAME FOR PROFIT,
BY ANY MEANS,METHOD OR PROCESS WHATSOEVER." 

/2/ THE CONSTITUTION GIVES CONGRESS THE POWER:  " TO PROMOTE THE
PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO
AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS
AND DISCOVERIES."  U.S.CONST., ART. I, SEC. 8, CL. 8.  SEE, E.G.,
BURROW-GILES LITHOGRAPHIC CO. V. SARONY, 111 U.S. 53, 58; TRADE-MARK
CASES, 100 U.S. 82, 94. 

/3/ TITLE 17 U.S.C. SEC. 1 PROVIDES IN PART: 

" ANY PERSON ENTITLED THERETO, UPON COMPLYING WITH THE PROVISIONS OF
THIS TITLE, SHALL HAVE THE EXLUSIVE RIGHT: 

"(A) TO PRINT, REPRINT, PUBLISH, COPY, AND VEND THE COPYRIGHTED
WORK; 

"(B) TO TRANSLATE THE COPYRIGHTED WORK INTO OTHER LANGUAGES OR
DIALECTS, OR MAKE ANY OTHER VERSION THEREOF, IF IT BE A LITERARY WORK;
TO DRAMATIZE IT IF IT BE A NONDRAMATIC WORK; TO CONVERT IT INTO A NOVEL
OR OTHER NONDRAMATIC WORK IF IT BE A DRAMA; TO ARRANGE OR ADAPT IT IF
IT BE A MUSICAL WORK; TO COMPLETE, EXECUTE, AND FINISH IT IF IT BE A
MODEL OR DESIGN FOR A WORK OF ART; 

"(C) TO DELIVER, AUTHORIZE THE DELIVERY OF , READ, OR PRESENT THE
COPYRIGHTED WORK IN PUBLIC FOR PROFIT IF IT BE A LECTURE, SERMON,
ADDRESS OR SIMILAR PRODUCTION, OR OTHER NONDRAMATIC LITERARY WORK; TO
MAKE OR PROCURE THE MAKING OF ANY TRANSCRIPTION OR RECORD THEREOF BY OR
FROM WHICH, IN WHOLE OR IN PART, IT MAY IN ANY MANNER OR BY ANY METHOD
BE EXHIBITED, DELIVERED, PRESENTED, PRODUCED, OR REPRODUCED; AND TO
PLAY OR PERFORM IT IN PUBLIC FOR PROFIT, AND TO EXHIBIT, REPRESENT,
PRODUCE, OR REPRODUCE IT IN ANY MANNER OR BY ANY METHOD WHATSOEVER. 
THE DAMAGES FOR THE INFRINGEMENT BY BROADCAST OF ANY WORK REFERRED TO
IN THIS SUBSECTION SHALL NOT EXCEED THE SUM $100 WHERE THE INFRINGING
BROADCASTER SHOWS THAT HE WAS NOT AWARE THAT HE WAS INFRINGEMENT COULD
NOT HAVE BEEN REASONABLY FORSEEN; AND 

"(D) TO PERFORM OR REPRESENT THE COPYRIGHTED WORK PUBLICLY IF IT BE
A DRAMA OR, IF IT BE A DRAMATIC WORK AND NOT REPRODUCED IN COPIES FOR
SALE, TO VEND ANY MANUSCRIPT OR ANY RECORD WHATSOEVER THEREOF; TO MAKE
OR TO PROCURE THE MAKING OF ANY TRANSCRIPTION OR RECORD THEREOF BY OR
FROM WHICH, INWHOLE OR IN PART, IT MAY IN ANY MANNER OR BY ANY METHOD
BE EXHIBITED, PERFORMED, REPRESENTED, PRODUCED, OR REPRODUCED; AND TO
EXHIBIT, PERFORM, REPRESENT, PRODUCE OR REPRODUCE IT IN ANY MANNER OR
BY ANY METHOD WHATSOEVER; AND 

"(E) TO PERFORM THE COPYRIGHTED WORK PUBLICLY FOR PROFIT IF IT BE A
MUSICAL COMPOSITION; AND FOR THE PURPOSE OF PUBLIC PERFORMANCE FOR
PROFIT, AND FOR THE PURPOSES SET FORTH IN SUBSECTION (A) HEREOF, TO
MAKE ANY ARRANGEMENT OR SETTING OF IT OR OF THE MELODY OF IT IN ANY
SYSTEM OF NOTATION OR ANY FORM OF RECORD IN WHICH THE THOUGHT OF AN
AUTHOR MAY BE RECORDED AND FROM WHICH IT MAY BE READ OR REPRODUCED..." 

/4/ CF. WALL V. TAYLOR, 11 Q.B.D. 102, 106 - 107 (1883) (BRETT,
M.R.):  " SINGING FOR ONE'S OWN GRATIFICATION WITHOUT INTENDING THEREBY
TO REPRESENT ANYTHING, OR TO AMUSE ANY ONE ELSE, WOULD NOT, I THINK, BE
EITHER A REPRESENTATION OR PERFORMANCE, ACCORDING TO THE ORDINARY
MEANING OF THOSE TERMS, NOR WOULD THE FACT OF SOME OTHER PERSON BEING
IN THE ROOM AT THE TIME OF SUCH SINGING MAKE IT SO...." 

/5/ SEE 1 M. NIMMER, COPYRIGHT SEC. 5 (1974). 

/6/ LORD MANSFIELD'S STATEMENT OF THE PROBLEM ALMOST 200 YEARS AGO
IN SAYRE V. MOORE, QUOTED IN A FOOTNOTE TO CARY V. LONGMAN, 1 EAST 358,
362 N. (B), 102 ENG. REP. 138, 140 N.(B) (1801, BEARS REPEATING: 

"(WW MUST TAKE CARE TO GURARD AGAINST TWO EXTREMES EQUALLY
PREJUDICIAL; THE ONE, THAT MEN OF ABILITY, WHO HAVE EMPLOYED THEIR TIME
FOR THE SERVICE OF THE COMMUNITY, MAY NOT BE DEPRIVED OF THEIR JUST
MERITS, AND THE REWARD OF THEIR INGENUITY AND LABOUR; THE OTHER, THAT
THE WORLD MAY NOT BE DEPRIVED OF IMPROVEMENTS, NOR THE PROGRESS OF THE
ARTS BE RETARDED." 

/7/ IN FORTNIGHTLY CORP. V. UNITED ARTISTS, 392 U.S. 390, THE COURT
STATED: 

"(OUR INQUIRY CANNOT BE LIMITED TO ORDINARY MEANING AND LEGISLATIVE
HISTORY, FOR THIS IS A STATUTE THAT WAS DRAFTED LONG BEFORE THE
DEVELOPMENT OF THE ELECTRONIC PHENOMENA WITH WHICH WE DEAL HERE.  IN
1909 RADIO ITSELF WAS IN ITS INFANCY, AND TELEVISION HAD NOT BEEN
INVENTED.  WE MUST READ THE STATUTORY LANGUAGE OF 60 YEARS AGO.  IN THE
LIGHT OF DRASTIC TECHNOLOGICAL CHANGE."  ID., AT 395 - 396 (FOOTNOTES
OMITTED). 

/8/ SEE N. 3, SUPRA. 

/9/ STATION KDKA, ESTABLISHED IN PITTSBURGH IN 1920, IS SAID TO HAVE
BEEN THE FIRST COMMERCIAL RADIO BROADCASTING STATION IN THE WORLD.  SEE
BUCK V. JEWELL-LA SALLE REALTY CO., 283 U.S. 191, 196 N. 2. 

/10/ "(WW HAVE NO OCCASION TO DETERMINE UNDER WHAT CIRCUMSTANCES A
BROADCASTER WILL BE HELD TO BE A PERFORMER, OR THE EFFECT UPON OTHERS
OF HIS PAYING A LICENSE FEE."  283 U.S., AT 198 (EMPHASIS ADDED).  SEE
ALSO ID., AT 199 N. 5. 

/11/ THE DECISION IN JEWELL-LSALLE MIGHT BE SUPPORTED BY A CONCEPT
AKIN TO THAT OF CONTRIBUTORY INFRINGEMENT, EVEN THOUGH THERE WAS NO
RELATIONSHIP BETWEEN THE BROADCASTER AND THE HOTEL COMPANY AND,
THEREFORE, TECHNICALLY NO QUESTION OF ACTUAL CONTRIBUTORY INFRINGEMENT
IN THAT CASE.  ID., AT 197 N. 4. 

/12/ THE COURT OF APPEALS OBSERVED THAT ASCAP NOW HAS LICENSE
AGREEMENTS WITH SOME 5,150 BUSINESS ESTABLISHMENTS IN THE WHOLE
COUNTRY, 500 F.2D 127, 129, NOTING THAT THESE INCLUDE "FIRMS WHICH
EMPLOY ON PREMISES SOURCES FOR MUSIC SUCH AS TAPE RECORDERS AND LIVE
ENTERTAINMENT."  ID., AT 129 N. 4.  AS A MATTER OF SO-CALLED "POLICY"
OR "PRACTICE," WE ARE TOLD, ASCAP HAS NOT EVEN TRIED TO EXACT LICENSING
AGREEMENTS FROM COMMERCIAL ESTABLISHMENTS WHOSE RADIOS HAVE ONLY A
SINGLE SPEAKER. 

/13/ THIS INEQUITY, IN THE CONTEXT OF THE DECISION IN BUCK V. JEWELL
LA SALLE REALTY CO., 283 U.S. 191, WAS POINTED OUT BY PROFESSOR
ZECHARIAH CHAFEE, JR., 30 YEARS AGO: 

" A RULE WHICH IS VERY HARD FOR LAYMEN TO APPLY SO AS TO KEEP CLEAR
OF LITIGATION WAS ESTABLISHED BY THE LA SALLE HOTEL CASE.  THE HOTEL
WAS HEAVILY LIABLE IF IT REBROADCAST UNLICENSED MUSIC, BUT HOW COULD IT
PROTECT ITSELF?  MUST IT MAINTAIN A MONITOR ALWASYS ONT HE JOB TO SIT
WITH A LIST BEFORE HIM PAGES LONG SHOWING WHAT PIECES ARE LICENSED AND
TURN OFF THE MASTER SET THE INSTANT AN UNLICENSED PIECE COMES FROM THE
BROADCASTING STATION?  THE DILEMMNA THUS CREATED BY THE COPYRIGHT ACT
WAS MITIGATED FOR A TIME BY THE MACHINERY OF ASCAP, WHICH WAS A DEVICE
ENTIRELY OUTSIDE THE STATUTE.  THE HOTEL COULD OBTAIN A BLANKET LICENSE
FROM ADCAP AND THUS BY PRETTY SURE OF SAFETY ABOUT ALL THE MUSIC WHICH
CAME THROGH ITS MASTER SET....(BUT IF) ANY COMPER OUTSIDE OF ASCAP HAS
HIS MUSIC BROADCAST, WHAT IS THE HOTEL TO DO?  BESIDES GETTING AN ASCAP
LICENSE, MUST THE HOTEL BARGAIN SEPARATELY WITH EVERY INDEPENDENT
COMPOSER ON THE CHANCE THAT HIS MUSIC MAY COME THROUGH TO THE HOTEL
PATRONS? 

" SUCH DIVERGENCES FROM THE IDEAL...ARE LIKELY TO BE CORRECTED...." 
REFLECTIONS ON THE LAW OF COPYRIGHT:  I, 45 COL. L. REV. 503, 528 -
529. 

/14/ THE PETITIONERS HAVE NOT DEMONSTRATED THAT THEY CANNOT RECEIVE
FROM A BROADCASTER ADEQUATE ROYALTIES BASED UPON THE TOTAL SIZE OF THE
BROADCASTER'S AUDIENCE.  ON THE CONTRARY, THE RESPONDENT POINTS OUT
THAT GENERALLY COPYRIGHT HOLDERS CAN AND DO RECEIVE ROYALTIES IN
PROPORTION TO ADVERTISING REVENUES OF LICENSED BROADCASTERS, AND A
BROADCASTER'S ADVERTISING REVENUES REFLECT THE TOTAL NUMBER OF ITS
LISTENERS, INCLUDING THOSE WHO LISTEN TO THE BROADCASTS IN PUBLIC
BUSINESS ESTABLISHMENTS. 

MR. JUSTICE BLACKMUN, CONCURRING IN THE RESULT. 

MY DISCOMFORT, NOW DECISIONALLY OUTDATED TO BE SURE, WITH THE
COURT'S OPINION AND JUDGMENT IS THREEFOLD: 

1. MY FIRST DISCOMFORT IS FACTUAL.  RESPONDENT AIKEN HARDLY WAS AN
INNOCENT "LISTENER," AS THE COURT SEEMS TO CHARACTERIZE HIM THROUGHOUT
ITS OPINION AND PARTICULARLY ON PAGE U62.  IN ONE SENSE, OF COURSE, HE
WAS A LISTENER, FOR AS HE OPERATED HIS SMALL FOOD SHOP AND SERVED HIS
CUSTOMERS, HE HEARD THE BROADCASTS HIMSELF.  PERHAPS HIS WORK WAS MADE
MORE ENJOYABLE BY THE SOOTHING AND ENTERTAINING EFFECTS OF THE MUSIC. 
WITH THIS ASPECT I WOULD HAVE NO DIFFICULTY. 

BUT RESPONDENT AIKEN INSTALLED FOUR LOUDSPEAKERS IN HIS SMALL SHOP. 
THIS, OBVIOUSLY, WAS NOT DONE FOR HIS PERSONAL USE AND CONTENTMENT SO
THAT HE MIGHT HEAR THE BROADCAST, IN ANY CORNER HE MIGHT BE, AVOVE THE
NOISE OF COMMERCIAL TRANSACTIONS.  IT WAS DONE FOR THE ENTERTAINMENT
AND EDIFICATION OF HIS CUSTOMERS.  IT WAS PART OF WHAT MR. AIKEN OFFERD
HIS TRADE, AND IT ADDED, IN HIS ESTIMATION, TO THE ATMOSPHERE AND
ATTRACTION OF HIS ESTABLISHMENT.  VIEWED IN THIS LIGHT, RESPONDENT IS
SOMETHING MORE THAN A MERE LISTENER AND IS NOT SO SIMPLY TO BE
CATEGORIZED. 

2.  MY SECOND DISCOMFORT IS PRECEDENTIAL.  FORTY-FOUR YEARS AGO, IN
A UNANIMOUS OPINION WRITTEN BY MR. JUSTICE BRANDEIS, THIS COURT HELD
THAT A HOTEL PROPRIETOR'S USE OF A RADIO RECEIVING SET AND LOUDSPEAKERS
FOR THE ENTERTAINMENT OF HOTEL GUESTS CONSTITUTED A PERFORMANCE WITHIN
THE MEANING OF SEC. 1 OF THE COPYRIGHT ACT, 17 U.S.C. SEC. 1.  BUCK V.
JEWELL-LA SALLE REALTY CO., 283 U.S. 191 (1931).  FOR MORE THAN 35
YEARS THE RULE IN JEWELL-LA SALLE WAS A BENCHMARK IN COPYRIGHT LAW AND
WAS THE FOUNDATION OF A SIGNIFICANT PORTIONOF THE RATHER ELABORATE
LICENSING AGREEMENTS THAT EVOLVED WITH THE DEVELOPING MEDIA
TECHNOLOGY.  SEVEN YEARS AGO THE COURT, BY A 5 - 1 VOTE, AND WITH THREE
JUSTICES NOT PARTICIPATING, HELD THAT A COMMUNITY ANTENNA TELEVISION
(CATV) STATION THAT TRANSMITTED COPYRIGHTED WORKS TO HOME SUBSCRIBERS
WAS NOT PERFORMING THE WORKS, WITHIN THE MEANING OF SEC. 1 OF THE
COPYRIGHT ACT.  FORTNIGHTLY CORP. V. UNITED ARTISTS, 392 U.S. 390
(1968).  THE DIVIDED COURT ONLY BRIEFLY NOTED THE RELEVANCE OF JEWELL
LA SALLE AND ANNOUNCED THAT THAT DECISION "MUST BE UNDERSTOOD AS
LIMITED OT ITS OWN FACTS."  ID., AT 396 - 397, N. 18.  I HAVE ALREADY
INDICATED MY DISAGREEMENT WITH THE REASONING OF FORTNIGHTLY AND MY
CONVICTION THAT IT, RATHER THAN JEWELL-LA SALLE, IS THE CASE THAT
SHOULD BE LIMITED TO ITS FACTS.  TELEPROMPTER CORP. V. CBS, 415 U.S.
394, 415 (1974) (DISSENTING OPINION.)  I WAS THERE CONCERNED ABOUT THE
COURT'S SIMPLISTIC VIEW OF TELEVISION'S COMPLICATIONS, A VIEW PERHAPS
ENCOURAGED BY THE OBVIOUS INADEQUACIES OF AN ANCIENT COPYRIGHT ACT FOR
TODAY'S TECHNOLOGY.  A MAJORITY OF THE COURT, HOWEVER, FELT OTHERWISE
AND EZTENDED THE SIMPLISTIC ANALYSIS REJECTED IN JEWELL-LA SALLE, BUT
EMBRACED IN FORTNIGHTLY, TO EVEN MORE COMPLEX ARRANGEMENTS IN THE CATV
INDUSTRY.  TELEPROMPTER CORP. V. CBS, SUPRA. 

I HAD HOPED, SECONDARILY, THAT THE REASONING OF FORTNIGHTLY AND
TELEPROMPTER WOULD BE LIMITED TO CATV.  AT LEAST IN THAT CONTEXT THE
TWO DECISIONS HAD THE ARGUABLY DESIRABLE EFFECT OF PROTECTING AN INFANT
INDUSTRY FROM A PREMATURE DEATH.  TODAY, HOWEVER, THE COURT EXTENDS
FORTNIGHTLY AND TELEPROMPTER INTO RADIO BROADCASTING, EFFECTIVELY
OVERRULES JEWELL-LA SALLE, AND THEREBY ABROGATES MORE THAN 40 YEARS OF
ESTABLISHED BUSINESS PRACTICES.  I WOULD LIMIT THE APPLICATION OF
TELEPROMPTER AND FORTNIGHTLY TO THE PECULIAR INDUSTRY THAT SPAWNED
THEM.  PARENTHETICALLY, IT IS OF INTEREST TO NOTE THAT THIS IS
PRECISELY THE RESULT THAT WOULD BE ACHIEVED BY VIRTUALLY ALL VERSIONS
OF PROPOSED REVISIONS OF THE COPYRIGHT ACT.  SEE, E.G., SEC. 101 OF S.
1361, 93D CONG., 2D SESS., WHICH SOUGHT TO AMEND 17 U.S.C. SEC. 110
(5).  SEE ALSO SEC. 48 (5) AND (6) OF THE BRITISH COPYRIGHT ACT OF
1956, 4 & 5 ELIZ.  2, C. 74, WHICH DISTINGUISHES BETWEEN THE USE OF A
RADIO IN A PUBLIC PLACE AND "THE CAUSING OF A WORK OR OTHER SUBJECT
MATTER TO BE TRANSMITTED TO SUBSCRIBERS TO A DIFFUSION SERVICE." 

RESOLUTION OF THES DIFFICULT PROBLEMS AND THE FASHIONING OF A MORE
MODERN STATUTE ARE TO BE EXPECTED FROM THE CONGRESS.  IN ANY EVENT, FOR
NOW, THE COURT SEEMS CONTENT TO CONTINUE WITH ITS SIMPLISTIC APPROACH
AND TO ACCOMPANY IT WITH A PRAGMATIC RELIANCE ON THE "PRACTICAL
UNENFORCEABILITY," ANTE, AT 162, OF THE COPYRIGHT LAW AGAINST PERSONS
SUCH AS GEORGE AIKEN. 

3.  MY THIRD DISCOMFORT IS TACTICAL.  I CANNOT UNDERSTAND WHY THE
COURT IS SO RELUCTANT TO DO DIRECTLY WHAT IT OBVIOUSLY IS DOING
INDIRECTLY, NAMELY, TO OVERRULE JEWELL-LA SALLE.  OF COURSE, IN MY
VIEW, THAT DECISION WAS CORRECT AT THE TIME IT WAS DECIDED, AND I WOULD
REGARD IT AS GOOD LAW TODAY UNDER THE IDENTICAL STATUTE AND WITH
IDENTICAL BROADCASTING.  BUT, AS I HAVE NOTED, THE COURT IN FORTNIGHTLY
LIMITED JEWELL-LA SALLE "TO ITS OWN FACTS," AND IN TELEPROMPTER IGNORED
ITS EXISTENCE COMPLETELY BY REFUSING EVENTO CITE IT.  THIS MEANS, IT
SEEMS TO ME, THAT THE COURT DID NOT WANT TO OVERRULE IT, BUT
NEVERTHELESS DID NOT AGREE WITH IT AND FELT, HOPEFULLY, THAT PERHAPS IT
WOULD NOT BOTHER US ANYMORE ANYWAY.  TODAY THE COURT DOES MUCH THE SAME
THING AGAIN BY EXTRACTING AND DISCOVERING GREAT SIGNIFICANCE IN THE
FACT THAT THE BROADCASTER IN JEWELL-LSALLE WAS NOT LICENSED TO PERFORM
THE COMPOSITION.  I CANNOT JOIN THE COURT'S INTIMATION, ANTE, AT 16/-
SURELY STRETCHED TO THE BREAKING POINT--THAT MR. JUSTICE BRANDEIS AND
THE UNANIMOUS COURT FOR WHICH HE SPOKE WOULD HAVE REACHED A CONTRARY
CONCLUSION IN JEWELL-LSALLE IN 1931 HAD THAT BROADCASTER BEEN
LICENSED.  THE COURT DANCES AREOUND JEWELL-LA SALLE, AS INDEED IT MUST,
FOR IT IS POTENT OPPOSING PRECEDENT FOR THE PRESENT CASE AND STANDS
STALWART AGAINST RESPONDENT AIKEN'S POSITION.  I THINK WE SHOULD BE
REALISTIC AND FORTHRIGHT AND, IF JEWELL-LA SALLE IS IN THE WAY,
OVERRULE IT. 

ALTHOUGH I DISSENTED IN TELEPROMPTER, THAT CASE AND FORTNIGHTLY,
BEFORE IT, HAVE BEEN DECIDED.  WITH THE COURT INSISTING ON ADHERING TO
THE RATIONALE OF THOSE CASES, THE RESULT THE COURT OF APPEALS AND THE
COURT REACHES HERE IS COMPELLED.  ACCEPTING THE PRECEDENT OF THOSE
CASES, I CONCUR IN THE RESULT.  DISAGREEMENT WITH THE COURT BUT TO
UNDERSCORE WHAT HAS REPEATEDLY BEEN STATED BY OTHERS AS TO THE NEED FOR
LEGISLATIVE ACTION.  RADIO TODAY IS CERTAINLY A MORE COMMONPLACE AND
UNIVERSALLY UNDERSTOOD TECHNOLOGICAL INNOVATION THAN CATV, FOR EXAMPLE,
YET WE ARE, BASICALLY, IN ESSENTIALLY THE SAME AWKWARD SITUATION AS IN
THE PAST WHEN CONFRONTED WITH THESE PROBLEMS.  WE MUST ATTEMPT TO APPLY
A STATUTE DESIGNED FOR ANOTHER ERA TO A SITUATION IN WHICH CONGRESS HAS
NEVER AFFIRMATIVELY MANIFESTED ITS VIEW CONCERNING THE COMPETING POLICY
CONSIDERATIONS INVOLVED. 

YET, THE ISSUE PRESENTED CAN ONLY BE RESOLVED APPROPRIATELY BY THE
CONGRESS; PERHAPS IT WILL FIND THE RESULT WHICH THE COURT REACHES TODAY
A PRACTICAL AND EQUITABLE RESOLUTUION, OR PERHAPS IT WILL FIND THIS
"FUNCTIONAL ANALYSIS" /1/ TOO SIMPLISTIC AN APPROACH, CF. TELEPROMPTER
CORP. V. CBX, 415 U.S. 394, 415 (1974) (BLACKMUN, J., DISSENTING), AND
OPT FOR ANOTHER SOLUTION. 

THE RESULT REACHED BY THE COURT IS NOT COMPELLED BY THE ALNGUAGE OF
THE STATUTE; IT IS CONTRAY TO THE APPLICABLE CASE LAW AND, EVEN
ASSUMING THE CORRECTNESS AND RELEVANCE OF THE CATV CASES, FORTNIGHTLY,
SUPRA, AND TELEPROMPTER, SUPRA, IT IS NOT ANALYTICALLY DICTATED BY
THOSE CASES.  IN SUCH A SITUATION, I SUGGEST, "THE FACT THAT THE
COPYRIGHT ACT WAS WRITTEN IN A DIFFERENT DAY, FOR DIFFERENT FACTUAL
SITUATIONS, SHOULD LEAD US TO TREAD CAUTIOUSLY HERE.  OUR MAJOR
OBJECT...SHOULD BE TO DO AS LITTLE DAMAGE AS POSSIBLE TO TRADITIONAL
COPYRIGHT PRINCIPLES AND TO BUSINESS RELATIONSHIPS, UNTIL THE CONGRESS
LEGISLATES AND RELIEVES THE EMBARRASSMENT WHICH WE AND THE INTERESTED
PARTIES FACE."  FORTNIGHTLY, SUPRA, AT 404 (FORTAS, J., DISSENTING). 

AS THE COURT'S OPINION NOTES, ANTE, AT 160, IN BUCK V. JEWELL-LA
SALLE REALTY CO., 283 U.S. 191 (1931), ANSWERING A PRECISELY PHRASED
CERTIFIED QUESTION, THE COURT CONSTRUED THE COPYRIGHT ACT IN A MANNER
WHICH SQUARELY CONFLICTS WITH WHAT IS HELD TODAY.  CONGRESS, DESPITE
MANY OPPORTUNITIES, HAS NEVER LEGISLATIVELY OVERRULED BUCK, SUPRA.  IT
WAS NOT OVERRULED IN FORTNIGHTLY BUT TREATED "AS LIMITED TO ITS OWN
FACTS."  392 U.S., AT 396 - 397, N. 18.  EVEN ASSUMING THE CORRECTNESS
OF THIS DUBIOUS PROCESS OF LIMITATION, SEE FORTNIGHTLY, SUPRA, AT 405
(FORTAS, J., DISSENTING); TELEPROMTER, SUPRA, AT 415 (BLACKMUN, J.,
DISSENTING); BUCK IS SQUARELY RELEVANT HERE SINCE THE LICENSE AT ISSUE
EXPRESSLY NEGATED ANY RIGHT ON THE PART OF THE BROADCASTER TO FURTHER
LICENSE PERFORMANCES BY THOSE WHO COMMERCIALLY RECEIVE AND DISTRIBUTE
BROADCAST MUSIC.  MOREOVER, EVEN ACCEPTING, ARGUENDO, THE RESTRICTIVE
READING GIVEN TO BUCK BY THE COURT TODAY, AND ASSUMING THE CORRECTNESS
OF FORTNIGHTLY AND TELEPROMPTER IN THE CATV FIELD, IT IS NOT AT ALL
CLEAR THAT THE ANALYSIS OF THES LATTER CASES SUPPORTS THE RESULT HERE. 
/2/ RESPONDENT WAS MORE THAN A "PASSIVE BENEFICIARY."  FORNIGHTLY,
SUPRA, AT 399.  HE TOOK THE TRANSMISSION AND USED THAT TRANSMISSION FOR
COMMERCIAL ENTERTAINMENT IN HIS OWN PROFIT ENTERPRISE, THROUGH A
MULTISPEAKER AUDIO SYSTEM SPECIFICALLY DESIGNED FOR HIS BUSINESS
PURPOSES.  /3/ IN SHORT, THIS CASE DOES NOT CALL FOR WWHAT THE COURT
DESCRIBES AS "A RULING THAT A RADIO LISTENER 'PERFORMS' EVERY BROADCAST
THAT HE RECEIVES..."ANTE, AT 162.  HERE, RESPONDENT RECEIVED THE
TRANSMISSION AND THEN PUT IT TO AN INDEPENDENT COMMERCIAL USE.  HIS
CONDUCT SEEMS TO ME CONTROLLED BY BUCK'S UNEQUIVOCAL HOLDING THAT: 

" ONE WHO HIRES AN ORCHESTRA FOR A PUBLIC PERFORANCE FOR PROFIT IS
NOT RELIEVED FROM A CHARGE OF INFRINGEMENT MERELY BECAUSE HE DOES NOT
SELECT THE PARTICULAR PROGRAM TO BE PLAYED.  SIMILARLY, WHEN HE TUNES
IN ON A BROADCASTING STATION, FOR HIS OWN COMMERCIAL PURPOSES, HE
NECESSARILY ASSUMES THE RISK THAT IN SO DOING HE MAY INFRINGE THE
PERFORMING RIGHTS OF ANOTHER."  283 U.S., AT U98 - 199.  SEE ALSO
HERBERT V. SHANLEY CO., 242 U.S. 591 (1917). 

IN SHORT, AS MR. JUSTICE DOUGLAS OBSERVED IN THE TELEPROMPTER CASE:
" THE COURT CAN READ THE RESULT IT ACHIEVES TODAY ONLY BY 'LEGISLATING'
IMPORTAN FEATURES OF THE COPYRIGHT ACT OUT OF EXISTENCE."  415 U.S., AT
421.  IN MY VIEW, WE SHOUL BEAR IN MIND THAT "(OUR AX, BEING A RULE OF
LAW, MUST CUT STRAIGHT, SHARP, AND DEEP; AND PERHAPS THIS IS A
SITUATION THAT CALLS FOR THE COMPROMISE OF THEORY AND FOR THE
ARCHITECTURAL IMPROVISATION WHICH ONLY LEGISLATION CAN ACCOMPLISH." 
FORTNIGHTLY, SUPRA, AT 408 (FORTAS, J., DISSENTING). 

/1/ BROADCASTERS PERFORM.  VIEWERS DO NOT PERFORM."  FORTNIGHTLY
CORP. V. UNITED ARTISTS, 392 U.S. 390, 398 (1968) (FOOTNOTES OMITTED). 

/2/ RECENT CONGRESSIONAL PROPOSALS HAVE TREATED THE PRESENT PROBLEM
DISTINCTLY FROM CATV QUESTIONS.  SEE, E.G., S. 1361, 93D ONG., 2D SESS.
(1974).  SEE ALSO BRITISH COPYRIGHT ACT 1956, SEC. 48 (5), (6), 4 & 5
ELIZ.  2, C. 74. 

/3/ INDEED, IN ITS CONSIDERATION OF S. 1361, THE SENATE COMMITTEE ON
THE JUDICIARY UNDERTOOK TO DISTINGUISH USE OF "ORDINARY RADIOS" FROM
SITUATIONS "WHERE BROADCASTS ARE TRANSMITTED TO SUBSTANTIAL AUDIENCES
BY MEANS OF LOUDSPEAKER COVERING A WIDE AREA."  S.REP.  NO. 93 - 983,
P. 130 (1974).  THE VALUE OF THE DISTINCTION, WITHOUT DRAWING A LINE ON
THE NUMBER OF OUTLETS THAT WOULD BE EXEMPT IS AT BEST DUBIOUS; THIS
VERSION LEAVES THE OBVIOUS GAP IN THE STATUTE TO BE FILLED IN BY THE
COURTS. 

WITH HIM ON THE BRIEFS WERE HERMAN FINKELSTEIN, JAY H. TOPKIS, AND
BERNARD KORMAN. 

HAROLD DAVID COHEN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE THOMAS N. DOWD AND WILLIAM S. D' AMICO. 

(IRWIN KARP FILED A BRIEF FOR THE AUTHORS LEAGUE OF AMERICA, INC.,
AS AMICUS CURIAE URGING REVERSAL.) 
..END :














GOLDFARB V. VIRGINIA STATE BAR, 421 U.S. 773 


       GOLDFARB ET UX. V. VIRGINIA STATE BAR ET AL.

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 74 - 70.  ARGUED MARCH 25, 1975 -- DECIDED JUNE 16,

           1975; 497 F.2D 1, REVERSED AND REMANDED. 


PETITIONERS, HUSBAND AND WIFE, CONTRACTED TO BUY A HOME IN FAIRFAX
COUNTY, VA., AND THE LEADER WHO FINANCED THE PURCHASE REQUIRED THEM TO
OBTAIN TITLE INSURANCE, WHICH NECESSITATED A TITLE EXAMINATION THAT
COULD BE PERFORMED LEGALLY ONLY BY A MEMBER OF RESPONDENT VIRGINIA
STATE BAR.  PETITIONERS UNSUCESSFULLY TRIED TO FIND A LAWYER WHO WOULD
EXAMINE THE TITLE FOR LESS THAN THE FEE PRESCRIBED IN A MINIMUM-FEE
SCHEDULE PUBLISHED BY RESPONDENT FAIRFAX COUNTY BAR ASSOCIATION AND
ENFORCED BY RESPONDENT VIRGINIA STATE BAR.  PETITIONERS THEN BROUGHT
THIS CLASS ACTION AGAINST RESPONDENTS, SEEKING INJUNCTIVE RELIEF AND
DAMAGES, AND ALLEGING THAT THE MINIMUM-FEE SCHEDULE AND ITS ENFORCEMENT
MECHANISM, AS APPLIED TO FEES FOR LEGAL SERVICES RELATING TO
RESIDENTIAL REAL ESTATE TRANSACTIONS, CONSTITUTE PRICE FIXING IN
VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  ALTHOUGH HOLDING THAT THE
STATE BAR WAS EXEMPT FROM THE SHERMAN ACT, THE DISTRICT COURT GRANTED
JUDGMENT AGAINST THE COUNTY BAR ASSOCIATION AND ENJOINED THE
PUBLICATION OF THE FEE SCHEDULE.  THE COURT OF APPEALS REVERSED,
HOLDING NOT ONLY THAT THE STATE BAR'S ACTIONS WERE IMMUNE FROM
LIABILITY AS "STATE ACTION," PARKER V. BROWN, 317 U.S. 341, BUT ALSO
THAT THE COUNTY BAR ASSOCIATION WAS IMMUNE BECAUSE THE PRACTICE OF LAW,
AS A "LEARNED PROFESSION," IS NOT "TRADE OR COMMERCE" UNDER THE SHERMAN
ACT; AND THAT, IN ANY EVENT, RESPONDENTS' ACTIVITIES DID NOT HAVE
SUFFICIENT EFFECT ON INTERSTATE COMMERCE TO SUPPORT SHERMAN ACT
JURISDICTION.  HELD:  THE MINIMUM-FEE SCHEDULE, AS PUBLISHED BY THE
COUNTY BAR ASSOCIATION AND ENFORCED BY THE STATE BAR, VIOLATES SEC. 1
OF THE SHERMAN ACT.  PP. 780 - 793. 

(A) THE SCHEDULE AND ITS ENFORCEMENT MECHANISM CONSTITUTE PRICE
FIXING SINCE THE RECORD SHOWS THAT THE SCHEDULE, RATHER THAN BEING
PURELY ADVISORY, OPERATED AS A FIXED, RIGID PRICE FLOOR.  THE FEE
SCHEDULE WAS ENFORCED THROUGH THE PROSPECT OF PROFESSIONAL DISCIPLINE
BY THE STATE BAR, BY REASON OF ATTORNEYS' DESIRE TO COMPLY WITH
ANNOUNCED PROFESSIONAL NORMS, AND BY THE ASSURANCE THAT OTHER LAWYERS
WOULD NOT COMPETE BY UNDERBIDDING.  PP. 782 - 783. 

(B) SINCE A SIGNIFICANT AMOUNT OF FUNDS FURNISHED FOR FINANCING THE
PURCHASE OF HOMES IN FAIRFAX COUNTY COMES FROM OUTSIDE THE STATE, AND
SINCE A TITLE EXAMINATION IS AN INTEGRAL PART OF SUCH INTERSTATE
TRANSACTIONS, INTERSTATE COMMERCE IS SUFFICIENTLY AFFECTED FOR SHERMAN
ACT PURPOSES NOTWITHSTANDING THAT THERE IS NO SHOWING THAT PROSPECTIVE
PURCHASERS WERE DISCOURAGED FROM BUYING HOMES IN FAIRFAX COUNTY BY THE
CHALLENGED ACTIVITIES, AND NO SHOWING THAT THE FEE SCHEDULE RESULTED IN
RAISING FEES.  PP. 783 - 785. 

(C) CONGRESS DID NOT INTEND ANY SWEEPING "LEARNED PROFESSION"
EXCLUSION FROM THE SHERMAN ACT; A TITLE EXAMINATION IS A SERVICE, AND
THE EXCHANGE OF SUCH A SERVICE FOR MONEY IS "COMMERCE" IN THE COMMON
USAGE OF THAT TERM.  PP. 785 - 788. 

(D) RESPONDENTS' ACTIVITIES ARE NOT EXEMPT FROM THE SHERMAN ACT AS
"STATE ACTION" WITHIN THE MEANING OF PARKER V. BROWN, SUPRA.  NEITHER
THE VIRGINIA SUPREME COURT NOR ANY VIRGINIA STATUTE REQUIRED SUCH
ACTIVITIES, AND, ALTHOUGH THE STATE BAR HAS THE POWER TO ISSUE ETHICAL
OPINIONS, IT DOES NOT APPEAR THAT THE SUPREME COURT APPROVES THEM.  IT
IS NOT ENOUGH THAT THE ANTI-COMPETITIVE CONDUCT IS "PROMPTED" BY STATE
ACTION; TO BE EXEMPT, SUCH CONDUCT MUST BE COMPELLED BY DIRECTION OF
THE STATE ACTING AS A SOVEREIGN.  HERE THE STATE BAR, BY PROVIDING THE
DEVIATION FROM THE MINIMUM FEES MAY LEAD TO DISCIPLINARY ACTION, HAS
VOLUNTARILY JOINED IN WHAT IS ESSENTIALLY A PRIVATE ANTICOMPETITIVE
ACTIVITY AND HENCE CANNOT CLAIM IT IS BEYOND THE SHERMAN ACT'S REACH. 
PP. 788 - 792. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
OTHER MEMBERS JOINED EXCEPT POWELL, J., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO DECIDE WHETHER A MINIMUM FEE SCHEDULE FOR
LAWYERS PUBLISHED BY THE FAIRFAX COUNTY BAR ASSOCIATION AND ENFORCED BY
THE VIRGINIA STATE BAR VIOLATES SEC. 1 OF THE SHERMAN ACT, 26 STAT.
209, AS AMENDED, 15 U.S.C. SEC. 1.  THE COURT OF APPEALS HELD THAT,
ALTHOUGH THE FEE SCHEDULE AND ENFORCEMENT MECHANISM SUBSTANTIALLY
RESTRAINED COMPETITION AMONG LAWYERS, PUBLICATION OF THE SCHEDULE BY
THE COUNTY BAR WAS OUTSIDE THE SCOPE OF THE ACT BECAUSE THE PRACTICE OF
LAW IS NOT "TRADE OR COMMERCE," AND ENFORCEMENT OF THE SCHEDULE BY THE
STATE BAR WAS EXEMPT FROM THE SHERMAN ACT AS STATE ACTION AS DEFINED IN
PARKER V. BROWN, 317 U.S. 341 (1943). 

        I 

IN 1971 PETITIONERS, HUSBAND AND WIFE, CONTRACTED TO BUY A HOME IN
FAIRFAX COUNTY, VA.  THE FINANCING AGENCY REQUIRED THEM TO SECURE TITLE
INSURANCE; THIS REQUIRED A TITLE EXAMINATION, AND ONLY A MEMBER OF THE
VIRGINIA STATE BAR COULD LEGALLY PERFORM THAT SERVICE.  /1/
PETITIONERS THEREFORE CONTACTED A LAWYER WHO QUOTED THEM THE PRECISE
FEE SUGGESTED IN A MINIMUM-FEE SCHEDULE PUBLISHED BY RESPONDENT FAIRFAX
COUNTY BAR ASSOCIATION; THE LAWYER TOLD THEM THAT IT WAS HIS POLICY TO
KEEP HIS CHARGES IN LINE WITH THE MINIMUM-FEE SCHEDULE WHICH PROVIDED
FOR A FEE OF 1% OF THE VALUE OF THE PROPERTY INVOLVED.  PETITIONERS
THEN TRIED TO FIND A LAWYER WHO WOULD EXAMINE THE TITLE FOR LESS THAN
THE FEE FIXED BY THE SCHEDULE.  THEY SENT LETTERS TO 36 OTHER FAIRFAX
COUNTY LAWYERS REQUESTING THEIR FEES.  NINETEEN REPLIED, AND NONE
INDICATED THAT HE WOULD CHARGE LESS THAN THE RATE FIXED BY THE
SCHEDULE; SEVERAL STATED THAT THEY KNEW OF NO ATTORNEY WHO WOULD DO
SO. 

THE FEE SCHEDULE THE LAWYERS REFERRED TO IS A LIST OF RECOMMENDED
MINIMUM PRICES FOR COMMON LEGAL SERVICES.  RESPONDENT FAIRFAX COUNTY
BAR ASSOCIATION PUBLISHED THE FEE SCHEDULE ALTHOUGH, AS A PURELY
VOLUNTARY ASSOCIATION OF ATTORNEYS, THE COUNTY BAR HAS NO FORMAL POWER
TO ENFORCE IT.  ENFORCEMENT HAS BEEN PROVIDED BY RESPONDENT VIRGINIA
STATE BAR WHICH IS THE ADMINISTRATIVE AGENCY /2/ THROUGH WHICH THE
VIRGINIA SUPREME COURT REGULATES THE PRACTICE OF LAW IN THAT STATE;
MEMBERSHIP IN THE STATE BAR IS REQUIRED IN ORDER TO PRACTICE IN
VIRGINIA.  /3/ ALTHOUGH THE STATE BAR HAS NEVER TAKEN FORMAL
DISCIPLINARY ACTION TO COMPEL ADHERENCE TO ANY FEE SCHEDULE, IT HAS
PUBLISHED REPORTS /4/ CONDONING FEE SCHEDULES, AND HAS ISSUED TWO
ETHNICAL OPINIONS /5/ INDICATING THAT FEE SCHEDULES CANNOT BE IGNORED. 
THE MOST RECENT OPINION STATES THAT "EVIDENCE THAT AN ATTORNEY
HABITUALLY CHARGES LESS THAN THE SUGGESTED MINIMUM FEE SCHEDULE ADOPTED
BY HIS LOCAL BAR ASSOCIATION, RAISES A PRESUMPTION THAT SUCH LAWYER IS
GUILTY OF MISCONDUCT . . . ."  /6/ 

BECAUSE PETITIONERS COULD NOT FIND A LAWYER WILLING TO CHARGE A FEE
LOWER THAT THE SCHEDULE DICTATED, THEY HAD THEIR TITLE EXAMINED BY THE
LAWYER THEY HAD FIRST CONTACTED.  THEY THEN BROUGHT THIS CLASS ACTION
AGAINST THE STATE BAR AND COUNTY BAR /7/ ALLEGING THAT THE OPERATION OF
THE MINIMUM-FEE SCHEDULE, AS APPLIED TO FEES FOR LEGAL SERVICES
RELATING TO RESIDENTIAL REAL ESTATE TRANSACTIONS, CONSTITUTES PRICE
FIXING IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  PETITIONERS SOUGHT
BOTH INJUNCTIVE RELIEF AND DAMAGES. 

AFTER A TRIAL SOLELY ON THE ISSUE OF LIABILITY THE DISTRICT COURT
HELD THAT THE MINIMUM-FEE SCHEDULE VIOLATED THE SHERMAN ACT.  /8/ 355
F. SUPP. 491 (ED VA. 1973).  THE COURT VIEWED THE FEE-SCHEDULE SYSTEM
AS A SIGNIFICANT REASON FOR PETITIONERS' FAILURE TO OBTAIN LEGAL
SERVICES FOR LESS THAN THE MINIMUM FEE, AND IT REFECTED THE COUNTY
BAR'S CONTENTION THAT AS A "LEARNED PROFESSION" THE PRACTICE OF LAW IS
EXEMPT FROM THE SHERMAN ACT. 

BOTH RESPONDENTS ARGUED THAT THEIR ACTIONS WERE ALSO EXEMPT FROM THE
SHERMAN ACT AS STATE ACTION.  PARKER V. BROWN, SUPRA.  THE DISTRICT
COURT AGREED THAT THE VIRGINIA STATE BAR WAS EXEMPT UNDER THAT DOCTRINE
BECAUSE IT IS AN ADMINISTRATIVE AGENCY OF THE VIRGINIA SUPREME COURT,
AND MORE IMPORTANT, BECAUSE ITS "MINOR ROLE IN THIS MATTER . . .
DERIVED FROM THE JUDICIAL AND 'LEGISLATIVE COMMAND OF THE STATE AND WAS
NOT INTENDED TO OPERATE OR BECOME EFFECTIVE WITHOUT THAT COMMAND.'" 
THE COUNTY BAR, ON THE OTHER HAND, IS A PRIVATE ORGANIZATION AND WAS
UNDER NO COMPULSION TO ADOPT THE FEE SCHEDULE RECOMMENDED BY THE STATE
BAR.  SINCE THE COUNTY BAR CHOSE ITS OWN COURSE OF CONDUCT THE DISTRICT
COURT HELD THAT THE ANTITRUST LAWS "REMAIN IN FULL FORCE AND EFFECT AS
TO IT."  THE COURT ENJOINED THE FEE SCHEDULE, 15 U.S.C. SEC. 26, AND
SET THE CASE DOWN FOR TRIAL TO ASCERTAIN DAMAGES.  15 U.S.C. SEC. 15. 

THE COURT OF APPEALS REVERSED AS TO LIABILITY.  497 F.2D 1 (CA4
1974).  DESPITE ITS CONCLUSION THAT IT "IS ABUNDANTLY CLEAR FROM THE
RECORD BEFORE US THAT THE FEE SCHEDULE AND THE ENFORCEMENT MECHANISM
SUPPORTING IT ACT AS A SUBSTANTIAL RESTRAINT UPON COMPETITION AMONG
ATTORNEYS PRACTICING IN FAIRFAX COUNTY," ID., AT 13, THE COURT OF
APPEALS HELD THE STATE BAR IMMUNE UNDER PARKER V. BROWN, SUPRA, AND
HELD THE COUNTY BAR IMMUNE BECAUSE THE PRACTICE OF LAW IS NOT "TRADE OR
COMMERCE" UNDER THE SHERMAN ACT.  THERE HAS LONG BEEN JUDICIAL
RECOGNITION OF A LIMITED EXCLUSION OF "LEARNED PROFESSIONS" FROM THE
SCOPE OF THE ANTITRUST LAWS, THE COURT SAID; THAT EXCLUSION IS BASED
UPON THE SPECIAL FORM OF REGULATION IMPOSED UPON THE PROFESSIONS BY THE
STATES, AND THE INCOMPATIBILITY OF CERTAIN COMPETITIVE PRACTICES WITH
SUCH PROFESSIONAL REGULATION.  IT CONCLUDED THAT THE PROMULGATION OF A
MINIMUM-FEE SCHEDULE IS ONE OF "THOSE MATTERS WITH RESPECT TO WHICH AN
ACCORD MUST BE REACHED BETWEEN THE NECESSITIES OF PROFESSIONAL
REGULATION AND THE DICTATES OF THE ANTITRUST LAWS."  THE ACCORD REACHED
BY THAT COURT WAS TO HOLD THE PRACTICE OF LAW EXEMPT FROM THE ANTITRUST
LAWS. 

ALTERNATIVELY, THE COURT OF APPEALS HELD THAT RESPONDENTS'
ACTIVITIES DID NOT HAVE SUFFICIENT EFFECT ON INTERSTATE COMMERCE TO
SUPPORT SHERMAN ACT JURISDICTION.  PETITIONERS HAD ARGUED THAT THE FEE
SCHEDULE RESTRAINED THE BUSINESS OF FINANCING AND INSURING HOME
MORTGAGES BY INFLATING A COMPONENT PART OF THE TOTAL COST OF HOUSING,
BUT THE COURT CONCLUDED TAHT A TITLE EXAMINATION IS GENERALLY A LOCAL
SERVICE, AND EVEN WHERE IT IS PART OF A TRANSACTION WHICH CROSSES STATE
LINES ITS EFFECT ON COMMERCE IS ONLY "INCIDENTAL," AND DOES NOT JUSTIFY
FEDERAL REGULATION. 

WE GRANTED CERTIORARI, 419 U.S. 963 (1974), AND ARE THUS CONFRONTED
FOR THE FIRST TIME WITH THE QUESTION OF WHETHER THE SHERMAN ACT APPLIES
TO SERVICES PERFORMED BY ATTORNEYS IN EXAMINING TITLES IN CONNECTION
WITH FINANCING THE PURCHASE OF REAL ESTATE. 

        II 

OUR INQUIRY CAN BE DIVIDED INTO FOUR STEPS:  DID RESPONDENTS ENGAGE
IN PRICE FIXING?  IF SO, ARE THEIR ACTIVITIES IN INTERSTATE COMMERCE OR
DO THEY AFFECT INTERSTATE COMMERCE?  IF SO, ARE THE ACTIVITIES EXEMPT
FROM THE SHERMAN ACT BECAUSE THEY INVOLVE A "LEARNED PROFESSION?"  IF
NOT, ARE THE ACTIVITIES "STATE ACTION" WITHIN THE MEANING OF PARKER V.
BROWN, 317 U.S. 341 (1943), AND THEREFORE EXEMPT FROM THE SHERMAN ACT? 

        A 

THE COUNTY BAR ARGUES THAT BECAUSE THE FEE SCHEDULE IS MERELY
ADVISORY, THE SCEDULE AND IT ENFORCEMENT MECHANISM DO NOT CONSTITUTE
PRICE FIXING.  ITS PURPOSE, THE ARGUMENT CONTINUES, IS ONLY TO PROVIDE
LEGITIMATE INFORMATION TO AID MEMBER LAWYERS IN COMPLYING WITH VIRGINIA
PROFESSIONAL REGULATIONS.  MOREOVER, THE COUNTY BAR CONTENDS THAT IN
PRACTICE THE SCHEDULE HAS NOT HAD THE EFFECT OF PRODUCING FIXED FEES. 
THE FACTS FOUND BY THE TRIER BELIE THESE CONTENTIONS, AND NOTHING IN
THE RECORD SUGGESTS THESE FINDINGS LACK SUPPORT. 

A PURELY ADVISORY FEE SCHEDULE ISSUED TO PROVIDE GUIDELINES, OR AN
EXCHANGE OF PRICE INFORMATION WITHOUT A SHOWING OF AN ACTUAL RESTRAINT
ON TRADE, WOULD PRESENT US WITH A DIFFERENT QUESTION, E.G., AMERICAN
COLUMN CO. V. UNITED STATES, 257 U.S. 377 (1921); MAPLE FLOORING ASSN.
V. UNITED STATES, 268 U.S. 563, 580 (1925).  BUT SEE UNITED STATES V.
NATIONAL ASSN. OF REAL ESTATE BOARDS, 339 U.S. 485, 488 - 489, 495
(1950).  THE RECORD HERE, HOWEVER, REVEALS A SITUATION QUITE DIFFERENT
FROM WHAT WOULD OCCUR UNDER A PURELY ADVISORY FEE SCHEDULE.  HERE A
FIXED, RIGID PRICE FLOOR AROSE FROM RESPONDENTS' ACTIVITIES:  EVERY
LAWYER WHO RESPONDED TO PETITIONERS' INQUIRIES ADHERED TO THE FEE
SCHEDULE, AND NO LAWYER ASKED FOR ADDITIONAL INFORMATION IN ORDER TO
SET AN INDIVIDUALIZED FEE.  THE PRICE INFORMATION DISSEMINATED DID NOT
CONCERN PAST STANDARDS, CF. CEMENT MRFS.  PROTECTIVE ASSN. V. UNITED
STATES, 268 U.S. 288 (1925), BUT RATHER MINIMUM FEES TO BE CHARGED IN
FUTURE TRANSACTIONS, AND THOSE MINIMUM RATES WERE INCREASED OVER TIME. 
THE FEE SCHEDULE WAS ENFORCED THROUGH THE PROSPECT OF PROFESSIONAL
DISCIPLINE FROM THE STATE BAR, AND THE DESIRE OF ATTORNEYS TO COMPLY
WITH ANNOUNCED PROFESSIONAL NORMS, SEE GENERALLY AMERICAN COLUMN CO.,
SUPRA, AT 411; THE MOTIVATION TO CONFORM WAS REINFORCED BY THE
ASSURANCE THAT OTHER LAWYERS WOULD NOT COMPETE BY UNDERBIDDING.  THIS
IS NOT MERELY A CASE OF AN AGREEMENT THAT MAY BE INFERRED FROM AN
EXCHANGE OF PRICE INFORMATION, UNITED STATES V. CONTAINER CORP., 393
U.S. 333, 337 (1969), FOR HERE A NAKED AGREEMENT WAS CLEARLY SHOWN, AND
THE EFFECT ON PRICES IS PLAIN.  /9/ ID., AT 339 (FORTAS, J.,
CONCURRING). 

MOREOVER, IN TERMS OF RESTRAINING COMPETITION AND HARMING CONSUMERS
LIKE PETITIONERS THE PRICE-FIXING ACTIVITIES FOUND HERE ARE UNUSUALLY
DAMAGING.  A TITLE EXAMINATION IS INDISPENSABLE IN THE PROCESS OF
FINANCING A REAL ESTATE PURCHASE, AND SINCE ONLY AN ATTORNEY LICENSED
TO PRACTICE IN VIRGINIA MAY LEGALLY EXAMINE A TITLE, SEE N. 1, SUPRA,
CONSUMERS COULD NOT TURN TO ALTERNATIVE SOURCES FOR NECESSARY SERVICE. 
ALL ATORNEYS, OF COURSE, WERE PRACTICING UNDER THE CONSTRAINT OF THE
FEE SCHEDULE.  SEE GENERALLY UNITED STATES V. CONTAINER CORP., SUPRA,
AT 337.  THE COUNTY BAR MAKES MUCH OF THE FACT THAT IT IS A VOLUNTARY
ORGANIZATION; HOWEVER, THE ETHICAL OPINIONS ISSUED BY THE STATE BAR
PROVIDE THAT ANY LAWYER, WHETHER OR NOT A MEMBER OF HIS COUNTY BAR
ASSOCIATION, MAY BE DISCIPLINED FOR "HABITUALLY CHARGING) LESS THAN THE
SUGGESTED MINIMUM FEE SCHEDULE ADOPTED BY HIS LOCAL BAR ASSOCIATION . .
. ."  SEE SUPRA, AT 777 - 778 AND N. 4.  THESE FACTORS COALESCED TO
CREATE A PRICING SYSTEM THAT CONSUMERS COULD NOT REALISTICALLY ESCAPE. 
ON THIS RECORD RESPONDENTS' ACITVITIES CONSTITUTE A CLASSIC
ILLUSTRATION OF PRICE FIXING. 

        B 

THE COUNTY BAR ARGUES, AS THE COURT OF APPEALS HELD, THAT ANY EFFECT
ON INTERSTATE COMMERCE CAUSED BY THE FEE SCHEDULE'S RESTRAINT ON LEGAL
SERVICES WAS INCIDENTAL AND REMOTE.  IN ITS VIEW THE LEGAL SERVICES,
WHICH ARE PERFORMED WHOLLY INTRASTATE, ARE ESSENTIALLY LOCAL IN NATURE
AND THEREFORE A RESTRAINT WITH RESPECT TO THEM CAN NEVER SUBSTANTIALLY
AFFECT INTERSTATE COMMERCE.  FURTHER, THE COUNTY BAR MAINTAINS, THERE
WAS NO SHOWING HERE THAT THE FEE SCHEDULE AND ITS ENFORCEMENT MECHANISM
INCREASED FEES, AND THAT EVEN IF THEY DID THERE WAS NO SHOWING THAT
SUCH AN INCREASE DETERRED ANY PROSPECTIVE HOMEOWNER FROM BUYING IN
FAIRFAX COUNTY. 

THESE ARGUMENTS MISCONCEIVE THE NATURE OF THE TRANSACTIONS AT ISSUE
AND THE PLACE LEGAL SERVICES PLAY IN THOSE TRANSACTIONS.  AS THE
DISTRICT COURT FOUND, /10/ "A SIGNIFICANT PORTION OF FUNDS FURNISHED
FOR THE PURCHASING OF HOMES IN FAIRFAX COUNTY COMES FROM WITHOUT THE
STATE OF VIRGINIA," AND "SIGNIFICANT AMOUNTS OF LOANS ON FAIRFAX COUNTY
REAL ESTATE ARE GUARANTEED BY THE UNITED STATES VETERANS ADMINISTRATION
AND DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, BOTH HEADQUARTERED IN
THE DISTRICT OF COLUMBIA."  THUS IN THIS CLASS ACTION THE TRANSACTIONS
WHICH CREATE THE NEED FOR THE PARTICULAR LEGAL SERVICES IN QUESTION
FREQUENTLY ARE INTERSTATE TRANSACTIONS.  THE NECESSARY CONNECTION
BETWEEN THE INTERSTATE TRANSACTIONS AND THE RESTRAINT OF TRADE PROVIDED
BY THE MINIMUM-FEE SCHEDULE IS PRESENT BECAUSE, IN A PRACTICAL SENSE,
/11/ TITLE EXAMINATIONS ARE NECESSARY IN REAL ESTATE TRANSACTIONS TO
ASSURE A LIEN ON A VALID TITLE OF THE BORROWER.  IN FINANCING REALTY
PURCHASES LENDERS REQUIRE, "AS A CONDITION OF MAKING THE LOAN, THAT THE
TITLE TO THE PROPERTY INVOLVED BE EXAMINED . . . ."  /12/ THUS A TITLE
EXAMINATION IS AN INTEGRAL PART OF AN INTERSTATE TRANSACTION /13/ AND
THIS COURT HAS LONG HELD THAT 

"THERE IS AN OBVIOUS DISTINCTION TO BE DRAWN BETWEEN A COURSE OF
CONDUCT WHOLLY WITHIN A STATE AND CONDUCT WHICH IS AN INSEPARABLE
ELEMENT OF A LARGER PROGRAM DEPENDENT FOR ITS SUCCESS UPON ACTIVITY
WHICH AFFECTS COMMERCE BETWEEN THE STATES."  UNITED STATES V. FRANKFORT
DISTILLERIES, 324 U.S. 293, 297 (1945).  SEE UNITED STATES V. YELLOW
CAB CO., 332 U.S. 218, 228 - 229 (1947).  GIVEN THE SUBSTANTIAL VOLUME
OF COMMERCE INVOLVED, /14/ AND THE INSEPARABILITY OF THIS PARTICULAR
LEGAL SERVICE FROM THE INTERSTATE ASPECTS OF REAL ESTATE TRANSACTIONS,
WE CONCLUDE THAT INTERSTATE COMMERCE HAS BEEN SUFFICIENTLY AFFECTED. 
SEE MONTAGUE & CO. V. LOWRY, 193 U.S. 38, 45 - 46 (1904); UNITED STATES
V. WOMEN'S SPORTSWEAR ASSN., 339 U.S. 460, 464 - 465 (1949).     THE
FACT THAT THERE WAS NO SHOWING THAT HOME BUYERS WERE DISCOURAGED BY THE
CHALLENGED ACTIVITIES DOES NOT MEAN THAT INTERSTATE COMMERCE WAS NOT
AFFECTED.  OTHERWISE, THE MAGNITUDE OF THE EFFECT WOULD CONTROL, AND
OUR CASES HAVE SHOWN THAT, ONCE AN EFFECT IS SHOWN, NO SPECIFIC
MAGNITUDE NEED BE PROVED.  E.G., UNITED STATES V. MC KESSON & ROBBINS,
INC., 351 U.S. 305, 310 (1956).  NOR WAS IT NECESSARY FOR PETITIONERS
TO PROVE THAT THE FEE SCHEDULE RAISED FEES.  PETITIONERS CLEARLY PROVED
THAT THE FEE SCHEDULE FIXED FEES AND THUS "DEPRIVED) PURCHASERS OR
CONSUMERS OF THE ADVANTAGES WHICH THEY DERIVE FROM FREE COMPETITION." 
APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 501 (1940).  SEE UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150 (1940).  WHERE, AS A
MATTER OF LAW OR PRACTICAL NECESSITY, LEGAL SERVICES ARE AN INTEGRAL
PART OF AN INTERSTAET TRANSACTION, A RESTRAINT ON THOSE SERVICES MAY
SUBSTANTIALLY AFFECT COMMERCE FOR SHERMAN ACT PURPOSES.  OF COURSE,
THERE MAY BE LEGAL SERVICES THAT INVOLVE INTERSTATE COMMERCE IN OTHER
FASHIONS, JUST AS THERE MAY BE LEGAL SERVICES THAT HAVE NO NEXUS WITH
INTERSTATE COMMERCE AND THUS ARE BEYOND THE REACH OF THE SHERMAN ACT. 

C 

THE COUNTY BAR ARGUES THAT CONGRESS NEVER INTENDED TO INCLUDE THE
LEARNED PROFESSIONS WITHIN THE TERMS "TRADE OR COMMERCE" IN SEC. 1 OF
THE SHERMAN ACT, /15/ AND THEREFORE THE SALE OF PROFESSIONAL SERVICES
IS EXEMPT FROM THE ACT.  NO EXPLICIT EXEMPTION OR LEGISLATIVE HISTORY
IS PROVIDED TO SUPPORT THIS CONTENTION; RATHER, THE EXISTENCE OF STATE
REGULATION SEEMS TO BE ITS PRIMARY BASIS.  ALSO, THE COUNTY BAR
MAINTAINS THAT COMPETITION IS INCONSISTENT WITH THE PRACTICE OF A
PROFESSION BECAUSE ENHANCING PROFIT IS NOT THE GOAL OF PROFESSIONAL
ACTIVITIES; THE GOAL IS TO PROVIDE SERVICES NECESSARY TO THE
COMMUNITY.  /16/ THAT, INDEED, IS THE CLASSIC BASIS TRADITIONALLY
ADVANCED TO DISTINGUISH PROFESSIONS FROM TRADES, BUSINESSES, AND OTHER
OCCUPATIONS, BUT IT LOSES SOME OF ITS FORCE WHEN USED TO SUPPORT THE
FEE CONTROL ACTIVITIES INVOLVED HERE. 

IN ARGUING THAT LEARNED PROFESSIONS ARE NOT "TRADE OR COMMERCE" THE
COUNTY BAR SEEKS A TOTAL EXCLUSION FROM ANTITRUST REGULATION.  WHETHER
STATE REGULATION IS ACTIVE OR DORMANT, REAL OR THEORETICAL, LAWYERS
WOULD BE ABLE TO ADOPT ANTICOMPETITIVE PRACTICES WITH IMPUNITY.  WE
CANNOT FIND SUPPORT FOR THE PROPOSITION THAT CONGRESS INTENDED ANY SUCH
SWEEPING EXCLUSION.  THE NATURE OF AN OCCUPATION, STANDING ALONE, DOES
NOT PROVIDE SANCTUARY FROM THE SHERMAN ACT, ASSOCIATED PRESS V. UNITED
STATES, 326 U.S. 1, 7 (1945), NOR IS THE PUBLIC-SERVICE ASPECT OF
PROFESSIONAL PRACTICE CONTROLLING IN DETERMINING WHETHER SEC. 1
INCLUDES PROFESSIONS.  UNITED STATES V. NATIONAL ASSN. OF REAL ESTATE
BOARDS, 339 U.S., AT 489.  CONGRESS INTENDED TO STRIKE AS BROADLY AS IT
COULD IN SEC. 1 OF THE SHERMAN ACT, AND TO READ INTO IT SO WIDE AN
EXEMPTION AS THAT URGED ON US WOULD BE AT ODDS WITH THAT PURPOSE. 

THE LANGUAGE OF SEC. 1 OF THE SHERMAN ACT, OF COURSE, CONTAINS NO
EXCEPTION.  " LANGUAGE MORE COMPREHENSIVE IS DIFFICULT TO CONCEIVE." 
UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533, 553
(1944).  AND OUR CASES HAVE REPEATEDLY ESTABLISHED THAT THERE IS A
HEAVY PRESUMPTION AGAINST IMPLICIT EXEMPTIONS, UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 350 - 351 (1963); CALIFORNIA
V. FPC, 369 U.S. 482, 485 (1962).  INDEED, OUR CASES HAVE SPECIFICALLY
INCLUDED THE SALE OF SERVICES WITHIN SEC. 1.  E.G., AMERICAN MEDICAL
ASSN. V. UNITED STATES, 317 U.S. 519 (1943); RADOVICH V. NATIONAL
FOOTBALL LEAGUE, 352 U.S. 445 (1957).  WHATEVER ELSE IT MAY BE, THE
EXAMINATION OF A LAND TITLE IS A SERVICE; THE EXCHANGE OF SUCH A
SERVICE FOR MONEY IS "COMMERCE" IN THE MOST COMMON USAGE OF THAT WORD. 
IT IS NO DISPARAGEMENT OF THE PRACTICE OF LAW AS A PROFESSION TO
ACKNOWLEDGE THAT IT HAS THIS BUSINESS ASPECT, /17/ AND SEC. 1 OF THE
SHERMAN ACT 

"(ON ITS FACE . . . SHOWS A CAREFULLY STUDIED ATTEMPT TO BRING
WITHIN THE ACT EVERY PERSON ENGAGED IN BUSINESS WHOSE ACTIVITIES MIGHT
RESTRAIN OR MONOPOLIZE COMMERCIAL INTERCOURSE AMONG THE STATES." 
UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., SUPRA, AT 553.  IN
THE MODERN WORLD IT CANNOT BE DENIED THAT THE ACTIVITIES OF LAWYERS
PLAY AN IMPORTANT PART IN COMMERCIAL INTERCOURSE, AND THAT
ANTICOMPETITIVE ACITIVITIES BY LAWYERS MAY EXERT A RESTRAINT ON
COMMERCE. 

D 

IN PARKER V. BROWN, 317 U.S. 341 (1943), THE COURT HELD THAT AN
ANTICOMPETITIVE MARKETING PROGRAM WHICH "DERIVED ITS AUTHORITY AND ITS
EFFICACY FROM THE LEGISLATIVE COMMAND OF THE STATE" WAS NOT A VIOLATION
OF THE SHERMAN ACT BECAUSE THE ACT WAS INTENDED TO REGULATE PRIVATE
PRACTICES AND NOT TO PROHIBIT A STATE FROM IMPOSING A RESTRAINT AS AN
ACT OF GOVERNMENT.  ID., AT 350 - 352; OLSEN V. SMITH, 195 U.S. 332,
344 - 345 (1904).  RESPONDENT STATE BAR AND RESPONDENT COUNTY BAR BOTH
SEEK TO AVAIL THEMSELVES OF THIS SO-CALLED STATE-ACTION EXEMPTION. 

THROUGH ITS LEGISLATURE VIRGINIA HAS AUTHORIZED ITS HIGHEST COURT TO
REGULATE THE PRACTICE OF LAW.  /18/ THAT COURT HAS ADOPTED ETHICAL
CODES WHICH DEAL IN PART WITH FEES, AND FAR FROM EXERCISING STATE POWER
TO AUTHORIZE BINDING PRICE FIXING, EXPLICITLY DIRECTED LAWYERS NOT "TO
BE CONTROLLED" BY FEE SCHEDULES.  /19/  THE STATE BAR, A STATE AGENCY
BY LAW, /20/ ARGUES THAT IN ISSUING FEE SCHEDULE REPORTS AND ETHICAL
OPINIONS DEALING WITH FEE SCHEDULES IT WAS MERELY IMPLEMENTING THE FEE
PROVISIONS OF THE ETHICAL CODES.  THE COUNTY BAR, ALTHOUGH IT IS A
VOLUNTARY ASSOCIATION AND NOT A STATE AGENCY, CLAIMS THAT THE ETHICAL
CODES AND THE ACTIVITIES OF THE STATE BAR "PROMPTED" IT TO ISSUE FEE
SCHEDULES AND THUS ITS ACTIONS, TOO, ARE STATE ACTION FOR SHERMAN ACT
PURPOSES. 

THE THRESHOLD INQUIRY IN DETERMINING IF AN ANTICOMPETITIVE ACTIVITY
IS STATE ACTION OF THE TYPE THE SHERMAN ACT WAS NOT MEANT TO PROSCRIBE
IS WHETHER THE ACTIVITY IS REQUIRED BY THE STATE ACTING AS SOVEREIGN. 
PARKER V. BROWN, 317 U.S., AT 350 - 352; CONTINENTAL CO. V. UNION
CARBIDE, 370 U.S. 690, 706 - 707 (1962).  HERE WE NEED NOT INQUIRE
FURTHER INTO THE STATE-ACTION QUESTION BECAUSE IT CANNOT FAIRLY BE SAID
THAT THE STATE OF VIRGINIA THROUGH ITS SUPREME COURT RULES REQUIRED THE
ANTICOMPETITIVE ACTIVITIES OF EITHER RESPONDENT.  RESPONDENTS HAVE
POINTED TO NO VIRGINIA STATUTE REQUIRING THEIR ACTIVITIES; STATE LAW
SIMPLY DOES NOT REFER TO FEES, LEAVING REGULATION OF THE PROFESSION TO
THE VIRGINIA SUPREME COURT; ALTHOUGH THE SUPREME COURT'S ETHICAL CODES
MENTION ADVISORY FEE SCHEDULES THEY DO NOT DIRECT EITHER RESPONDENT TO
SUPPLY THEM, OR REQUIRE THE TYPE OF PRICE FLOOR WHICH AROSE FROM
RESPONDENTS' ACTIVITIES.  ALTHOUGH THE STATE BAR APPARENTLY HAS BEEN
GRANTED THE POWER TO ISSUE ETHICAL OPINIONS, THERE IS NO INDICATION IN
THIS RECORD THAT THE VIRGINIA SUPREME COURT APPROVES THE OPINIONS. 
RESPONDENTS' ARGUMENTS, AT MOST, CONSTITUTE THE CONTENTION THAT THEIR
ACTIVITIES COMPLEMENTED THE OBJECTIVE OF THE ETHICAL CODES.  IN OUR
VIEW THAT IS NOT STATE ACTION FOR SHERMAN ACT PURPOSES.  IT IS NOT
ENOUGH THAT, AS THE COUNTY BAR PUTS IT, ANTICOMPETITIVE CONDUCT IS
"PROMPTED" BY STATE ACTION; RATHER, ANTICOMPETITIVE ACTIVITIES MUST BE
COMPELLED BY DIRECTION OF THE STATE ACTING AS A SOVEREIGN. 

THE FACT THAT THE STATE BAR IS A STATE AGENCY FOR SOME LIMITED
PURPOSES DOES NOT CREATE AN ANTITRUST SHIELD THAT ALLOWS IT TO FOSTER
ANTICOMPETITIVE PRACTICES FOR THE BENEFIT OF ITS MEMBERS.  /21/  CF.
GIBSON V. BERRYHILL, 411 U.S. 564, 578 - 579 (1973).  THE STATE BAR, BY
PROVIDING THAT DEVIATION FROM COUNTY BAR MINIMUM FEES MAY LEAD TO
DISCIPLINARY ACTION, HAS VOLUNTARILY JOINED IN WHAT IS ESSENTIALLLY A
PRIVATE ANTICOMPETITIVE ACTIVITY, AND IN THAT POSTURE CANNOT CLAIM IT
IS BEYOND THE REACH OF THE SHERMAN ACT.  /22/  PARKER V. BROWN, SUPRA,
AT 351 - 352.  ITS ACTIVITIES RESULTED IN A RIGID PRICE FLOOR FROM
WHICH PETITIONERS, AS CONSUMERS, COULD NOT ESCAPE IF THEY WISHED TO
BORROW MONEY TO BUY A HOME. 

III 

WE RECOGNIZE THAT THE STATES HAVE A COMPELLING INTEREST IN THE
PRACTICE OF PROFESSIONS WITHIN THEIR BOUNDARIES, AND THAT AS PART OF
THEIR POWER TO PROTECT THE PUBLIC HEALTH, SAFETY, AND OTHER VALID
INTERESTS THEY HAVE BROAD POWER TO ESTABLISH STANDARDS FOR LICENSING
PRACTITIONERS AND REGULATING IN PRACTICE OF PROFESSIONS.  WE ALSO
RECOGNIZE THAT IN SOME INSTANCES THAT STATE MAY DECIDE THAT "FORMS OF
COMPETITION USUAL IN THE BUSINESS WORLD MAY BE DEMORALIZING TO THE
ETHICAL STANDARDS OF A PROFESSION."  UNITED STATES V. OREGON STATE
DEMICAL SOCIETY, 343 U.S. 326, 336 (1952).  SEE ALSO SEMLER V. OREGON
STATE BOARD OF DENTAL EXAMINERS, 294 U.S. 608, 611 - 613 (1935).  THE
INTEREST OF THE STATES IN REGULATING LAWYERS IS ESPECIALLY GREAT SINCE
LAWYERS ARE ESSENTIAL TO THE PRIMARY GOVERNMENTAL FUNCTION OF
ADMINISTERING JUSTICE, AND HAVE HISTORICALLY BEEN "OFFICERS OF THE
COURTS."  SEE SPERRY V. FLORIDA EX REL. FLORIDA BAR, 373 U.S. 379, 383
(1963); COHEN V. HURLEY, 366 U.S. 117, 123 - 124 (1961); LAW STUDENTS
RESEARCH COUNCIL V. WADMOND, 401 U.S. 154, 157 (1971).  IN HOLDING THAT
CERTAIN ANTICOMPETITIVE CONDUCT BY LAWYERS IS WITHIN THE REACH OF THE
SHERMAN ACT WE INTEND NO DIMINUTION OF THE AUTHORITY OF THE STATE TO
REGULATE ITS PROFESSIONS. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT WITH ORDERS TO REMAND TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

                                  REVERESED AND REMANDED. 

/1/ UNAUTHORIZED PRACTICE OF LAW, OPINION NO. 17, AUG. 5, 1942,
VIRGINIA STATE BAR-OPINIONS 239 (1965). 

/2/ VIRINIA CODE ANN. SEC. 54 - 49 (1972) PROVIDES: 

" THE SUPREME OF APPEALS MAY, FROM TIME TO TIME, PRESCRIBE, ADOPT,
PROMULGATE AND AMEND RULES AND REGULATIONS ORGANIZING AND GOVERNING THE
ASSOCIATION KNOWN AS THE VIRGINIA STATE BAR, COMPOSED OF THE ATTORNEYS
AT LAW OF THIS STATE, TO ACT AS AN ADMINISTRATIVE AGENCY OF THE COURT
FOR THE PURPOSE OF INVESTIGATING AND REPORTING THE VIOLATION OF SUCH
RULES AND REGULATIONS AS ARE ADOPTED BY THE COURT UNDER THIS ARTICLE TO
A COURT OF COMPETENT JURISDICTION FOR SUCH PROCEEDINGS AS MAY BE
NECESSARY, AND REQUIRING ALL PERSONS PRACTICING LAW IN THIS STATE TO BE
MEMBERS THEREOF IN GOOD STANDING." 

/3/ IBID. 

/4/ IN 1962 THE STATE BAR PUBLISHED A MINIMUM-FEE-SCHEDULE REPORT
THAT LISTED A SERIES OF FEES AND STATED THAT THEY "REPRESENT THE
CONSIDERED JUDGMENT OF THE COMMITTEE (ON ECONOMICS OF LAW PRACTICE) AS
TO (A) FAIR MINIMUM FEE IN EACH INSTANCE."  THE REPORT STATED, HOWEVER,
THAT THE FEES WERE NOT MANDATORY, AND IT RECOMMENDED ONLY THAT THE
STATE BAR CONSIDER ADOPTING SUCH A SCHEDULE.  NEVERTHELESS, SHORTLY
THEREAFTER THE COUNTY BAR ADOPTED ITS OWN MINIMUM-FEE SCHEDULE THAT
PURPORTED TO BE "A CONSCIENTIOUS EFFORT TO SHOW LAWYERS IN THEIR TRUE
PERSPECTIVE OF DIGNITY, TRAINING AND INTEGRITY."  THE SUGGESTED FEES
FOR TITLE EXAMINATION WERE VIRTUALLY IDENTICAL TO THOSE IN THE STATE
BAR REPORT.  IN ACCORD WITH OPINION 98 OF THE STATE BAR COMMITTEE ON
LEGAL ETHICS THE SCHEDULE STATED THAT, ALTHOUGH THERE IS AN IDENTICAL
DUTY TO CHARGE A LOWER FEE IN A DESERVING CASE, IF A LAWYER 

"'PURELY FOR HIS OWN ADVANCEMENT, INTENTIONALLY AND REGULARLY BILLS
LESS THAN THE CUSTOMARY CHARGES OF THE BAR FOR SIMILAR SERVICES.  . .
(IN ORDER TO) INCREASE HIS BUSINESS WITH RESULTING PERSONAL GAIN, IT
BECOMES A FORM OF SOLICITATION CONTRARY TO CANON 27 AND ALSO A
VIOLATION OF CANON 7, WHICH FORBIDS THE EFFORTS OF ONE LAWYER TO
ENCROACH UPON THE EMPLOYMENT OF ANOTHER.'"  APP.  30. 

IN 1969 THE STATE BAR PUBLISHED A SECOND FEE-SCHEDULE REPORT THAT,
AS IT CANDIDLY STATED, "REFLECTED) A GENERAL SCALING UP OF FEES FOR
LEGAL SERVICES."  THE REPORT AGAIN STATED THAT NO LOCAL BAR ASSOCIATION
WAS BOUND BY ITS RECOMMENDATIONS; HOWEVER, RESPONDENT COUNTY BAR AGAIN
QUICKLY MOVED TO PUBLISH AN UPDATED MINIMUM-FEE SCHEDULE, AND GENERALLY
TO RAISE FEES.  THE NEW SCHEDULE STATED THAT THE FEES WERE NOT
MANDATORY, BUT TEMPERED THAT BY REFERRING AGAIN TO OPINION 98.  THIS
TIME THE SCHEDULE ALSO STATED THAT LAWYERS SHOULD FEEL FREE TO CHARGE
MORE THAN THE RECOMMENDED FEES; AND TO AVOID CONDEMNATION OF HIGHER
FEES CHARGED BY SOME LAWYERS, IT CAUTIONED COUNTY BAR MEMBERS THAT "TO.
. .PUBLICLY CRITICIZE LAWYERS WHO CHARGE MORE THAN THE SUGGESTED FEES
HEREIN MIGHT IN ITSELF BE EVIDENCE OF SOLICITATION . . . ." 

/5/ VIRGINIA STATE BAR COMMITTEE ON LEGAL ETHICS, OPINION NO. 98,
JUNE 1, 1960; VIRGINIA STATE BAR COMMITTEE ON LEGAL ETHICS, OPINION NO.
170, MAY 28, 1971. 

/6/ IBID.  THE PARTIES STIPULATED THAT THESE OPINIONS ARE A
SUBSTANTIAL INFLUENCING FACTOR IN LAWYERS' ADHERENCE TO THE FEE
SCHEDULES.  ONE REASON FOR THIS MAY BE BECAUSE THE STATE BAR IS
REQUIRED BY STATUTE TO "INVESTIGATE) AND REPORT . . . THE VIOLATION OF
. . . RULES AND REGULATIONS AS ARE ADOPTED BY THE (VIRGINIA SUPREME
COURT) TO A COURT OF COMPETENT JURISDICTION FOR SUCH PROCEEDINGS AS MAY
BE NECESSARY . . . ."  VA. CODE ANN. SEC. 54 - 49 (1972).  THEREFORE
ANY LAWYER WHO CONTEMPLATED IGNORING THE FEE SCHEDULE MUST HAVE BEEN
AWARE THAT PROFESSIONAL SANCTIONS WERE POSSIBLE, AND THAT AN
ENFORCEMENT MECHANISM EXISTED TO ADMINISTER THEM. 

/7/ TWO ADDITIONAL COUNTY BAR ASSOCIATIONS WERE ORIGINALLY NAMED AS
DEFENDANTS BUT THEY AGREED TO A CONSENT JUDGMENT UNDER WHICH THEY WERE
DIRECTED TO CANCEL THEIR EXISTING FEE SCHEDULES, AND WERE ENJOINED FROM
ADOPTING, PUBLISHING, OR DISTRIBUTING ANY FUTURE SCHEDULES OF MINIMUM
OR SUGGESTED FEES.  DAMAGE CLAIMS AGAINST THESE ASSOCIATIONS WERE THEN
DISMISSED WITH PREJUDICE. 

/8/ THE COURT WAS SATISFIED THAT INTERSTATE COMMERCE WAS
SUFFICIENTLY AFFECTED TO SUSTAIN JURISDICTION UNDER THE SHERMAN ACT
BECAUSE A SIGNIFICANT PORTION OF THE FUNDS AND INSURANCE INVOLVED IN
THE PURCHASE OF HOMES IN FAIRFAX COUNTY COMES FROM OUTSIDE THE STATE OF
VIRGINIA.  355 F. SUPP. 491, 497 (ED VA. 1973).     /9/ THE COURT OF
APPEALS ACCURATELY DEPICTED THE SITUATION: 

"(IT IS CLEAR FROM THE RECORD THAT ALL OR NEARLY ALL OF THE (COUNTY
BAR) MEMBERS CHARGED FEES EQUAL TO OR EXCEEDING THE FEES SET FORTH IN
THE SCHEDULE FOR TITLE EXAMINATIONS AND OTHER SERVICES INVOLVING REAL
ESTATE."  497 F.2D 1, 12 (CA4 1974). 

"' A SIGNIFICANT REASON FOR INABILITY OF (PETITIONERS) TO OBTAIN
LEGAL SERVICES . . . FOR LESS THAN THE FEE SET FORTH IN THE MINIMUM FEE
SCHEDULE . . . WAS THE OPERATION OF THE MINIMUM FEE SCHEDULE SYSTEM.'" 
ID., AT 4.     " IT IS ABUNDANTLY CLEAR FROM THE RECORD BEFORE US THAT
THE FEE SCHEDULE AND THE ENFORCEMENT MECHANISM SUPPORTING IT ACT AS A
SUBSTANTIAL RESTRAINT UPON COMPETITION AMONG ATTORNEYS PRACTICING IN
FAIRFAX COUNTY."  ID., AT 13. 

/10/ THE COURT OF APPEALS DID NOT DISTURB THE DISTRICT COURT'S
FINDINGS OF FACT.  IT SIMPLY DISAGREED ON THE CONCLUSIONS OF LAW DRAWN
THEREFROM. 

/11/ IT IS IN A PRACTICAL SENSE THAT WE MUST VIEW AN EFFORT ON
INTERSTATE COMMERCE, SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 398
(1905); MANDEVILLE ISLAND FARMS, INC. V. AMERICAN CRYSTAL SUGAR CO.,
334 U.S. 219, 233 (1948). 

/12/ 355 F. SUPP., AT 494. 

/13/ THE COUNTY BAR RELIES ON UNITED STATES V. YELLOW CAB CO., 332
U.S. 218 (1947), TO SUPPORT ITS ARGUMENT THAT THE "ESSENTIALLY LOCAL"
LEGAL SERVICES AT ISSUE HERE ARE BEYOND THE SHERMAN ACT.  THERE WE
HELD, INTER ALIA, THAT INTRASTATE TAXI TRIPS THAT OCCURED AT THE START
AND FINISH OF INTERSTATE TRAVEL WERE "TOO UNRELATED TO INTERSTATE
COMMERCE TO CONSTITUTE A PART THEREOF WITHIN THE MEANING OF THE SHERMAN
ACT."  ID., AT 230.  THE RIDE TO THE RAILWAY STATION, WE SAID, "(FROM
THE STANDPOINTS OF TIME AND CONTINUITY . . . MAY BE QUITE DISTINCT AND
SEPARATE FROM THE INTERSTATE JOURNEY."  ID., AT 232.  HERE, ON THE
CONTRARY, THE LEGAL SERVICES ARE COINCIDENTAL WITH INTERSTATE REAL
ESTATE TRANSACTIONS IN TERMS OF TIME, AND MORE IMPORTANT, IN TERMS OF
CONTINUITY THEY ARE ESSENTIAL.  INDEED, IT WOULD BE MORE APT TO COMPARE
THE LEGAL SERVICES HERE WITH A TAXI TRIP BETWEEN STATIONS TO CHANGE
TRAINS IN THE MIDST OF AN INTERSTATE JOURNEY.  IN YELLOW CAB WE HELD
THAT SUCH A TRIP WAS A PART OF THE STREAM OF COMMERCE.  ID, AT 228 -
229. 

/14/ 355 F. SUPP., AT 497. 

/15/ THE COUNTY BAR CITES PHRASES IN SEVERAL CASES THAT IMPLIED THE
PRACTICE OF A LEARNED PROFESSION IS NOT "TRADE OR COMMERCE" UNDER THE
ANTITRUST LAWS.  E.G., FEDERAL CLUB V. NATIONAL LEAGUE, 259 U.S. 200,
209 (1922) ("A FIRM OF LAWYERS SENDING OUT A MEMBER TO ARGUE A CASE . .
. DOES NOT ENGAGE IN . . . COMMERCE BECAUSE THE LAWYER . . . GOES TO
ANOTHER STATE"); FTC V. RALADAM CO., 283 U.S. 643, 653 (1931) ("MEDICAL
PRACTITIONERS . . . FOLLOW A PROFESSION AND NOT A TRADE . . .");
ATLANTIC CLEANERS & DYERS V. UNITED STATES, 286 U.S. 427, 436 (1932);
UNITED STATES V. NATIONAL ASSN. OF REAL ESTATE BOARDS, 339 U.S. 485,
490 (1950).  THESE CITATIONS ARE TO PASSING REFERENCES IN CASES
CONCERNED WITH OTHER ISSUES; AND, MORE IMPORTANT, UNTIL THE PRESENT
CASE IT IS CLEAR THAT WE HAVE NOT ATTEMPTED TO DECIDE WHETHER THE
PRACTICE OF A LEARNED PROFESSION FALLS WITHIN SEC. 1 OF THE SHERMAN
ACT.  IN NATIONAL ASSN OF REAL ESTATE BOARDS, SUPRA, WE SPECIFICALLY
STATED THAT THE QUESTION WAS STILL OPEN, ID., AT 492, AS WE HAD DONE
EARLIER IN AMERICAN MEDICAL ASSN. V. UNITED STATES, 317 U.S. 519, 528
(1943). 

/16/ THE REASON FOR ADOPTING THE FEE SCHEDULE DOES NOT APPEAR TO
HAVE BEEN WHOLLY ALTRUISTIC.  THE FIRST SENTENCE IN RESPONDENT STATE
BAR'S 1962 MINIMUM FEE SCHEDULE REPORT STATES: 

"' THE LAWYERS HAVE SLOWLY, BUT SURELY, BEEN COMMITTING ECONOMIC
SUICIDE AS A PROFESSION.'"  VIRGINIA STATE BAR, MINIMUM FEE SCHEDULE
REPORT 1962, P. 3, APP. 20. 

/17/ THE FACT THAT A RESTRAINT OPERATES UPON A PROFESSION AS
DISTINGUISHED FROM A BUSINESS IS, OF COURSE, RELEVANT IN DETERMINING
WHETHER THAT PARTICULAR RESTRAINT VIOLATES THE SHERMAN ACT.  IT WOULD
BE UNREALISTIC TO VIEW THE PRACTICE OF PROFESSIONS AS INTERCHANGEABLE
WITH OTHER BUSINESS ACTIVITIES, AND AUTOMATICALLY TO APPLY TO THE
PROFESSIONS ANTITRUST CONCEPTS WHICH ORIGINATED IN OTHER AREAS.  THE
PUBLIC SERVICE ASPECT, AND OTHER FEATURES OF THE PROFESSIONS, MAY
REQUIRE THAT A PARTICULAR PRACTICE, WHICH COULD PROPERLY BE VIEWED AS A
VIOLATION OF THE SHERMAN ACT IN ANOTHER CONTEXT, BE TREATED
DIFFERENTLY.  WE INTIMATE NO VIEW ON ANY OTHER SITUATION THAN THE ONE
WITH WHICH WE ARE CONFRONTED TODAY. 

/18/ VIRGINIA CODE ANN. SEC. 54 - 48 (1972) PROVIDES: 

" RULES AND REGULATIONS DEFINING PRACTICE OF LAW AND PRESCRIBING
CODES OF ITHICS AND DISCIPLINARY PROCEDURE.  -- THE SUPREME COURT OF
APPEALS MAY, FROM TIME TO TIME, PRESCRIBE, ADOPT, PROMULGATE AND AMEND
RULES AND REGULATIONS: 

"(A) DEFINING THE PRACTICE OF LAW. 

"(B) PRESCRIBING A CODE OF ETHICS GOVERNING THE PROFESSIONAL CONDUCT
OF ATTORNEYS AT LAW AND A CODE OF JUDICIAL ETHICS. 

"(C) PRESCRIBING PROCEDURE FOR DISCIPLINING, SUSPENDING, AND
DISBARRING ATTORNEYS AT LAW."  IN ADDITION, THE SUPREME COURT OF
VIRGINIA, HAS INHERENT POWER TO REGULATE THE PRACTICE OF LAW IN THAT
STATE.  BUTTON V. DAY, 204 VA. 547, 132 S.E. 2D 292 (1963).  SEE
LATHROP V. DONOHUE, 367 U.S. 820 (1961). 

/19/ IN 1938 THE SUPREME COURT OF VIRGINIA ADOPTED RULES FOR THE
INTEGRATION OF THE VIRGINIA STATE BAR, AND RULE II, SEC. 12 DEALT WITH
THE PROCEDURE FOR SETTING FEES.  AMONG SIX FACTORS THAT COURT DIRECTED
TO BE CONSIDERED IN SETTING A FEE WERE "THE CUSTOMARY CHARGES OF THE
BAR FOR SIMILAR SERVICES."  THE COURT ALSO DIRECTED THAT "(IN
DETERMINING THE CUSTOMARY CHARGES OF THE BAR FOR SIMILAR SERVICES, IT
IS PROPER FOR A LAWYER TO CONSIDER A SCHEDULE OF MINIMUM FEES ADOPTED
BY A BAR ASSOCIATION, BUT NO LAWYER SHOULD PERMIT HIMSELF TO BE
CONTROLLED THEREBY OR TO FOLLOW IT AS HIS SOLE GUIDE IN DETERMINING THE
AMOUNT OF HIS FEE."  RULES FOR INTEGRATION OF THE VIRGINIA STATE BAR,
171 VA. XVII, XXIII.  (EMPHASIS SUPPLIED.)  IN 1970 THE VIRGINIA
SUPREME COURT AMENDED THE 1938 RULES IN PART, AND ADOPTED THE CODE OF
PROFESSIONAL RESPONSIBILITY, EFFECTIVE JANUARY 1, 1971.  211 VA. 295
(1970).  CERTAIN OF ITS PROVISIONS ALSO DEALT WITH THE FEE-SETTING
PROCEDURE.  IN EC 2 - 18 LAWYERS WERE TOLD AGAIN THAT FEES VARY
ACCORDING TO MANY FACTORS, BUT THAT "(SUGGESTED FEE SCHEDULES AND
ECONOMIC REPORTS OF STATE AND LOCAL BAR ASSOCIATIONS PROVIDE SOME
GUIDANCE ON THE SUBJECT OF REASONABLE FEES."  ID., AT 302.  IN DR 2 -
106 (B), WHICH DETAILED EIGHT FACTORS THAT SHOULD BE CONSIDERED IN
AVOIDING AN EXCESSIVE FEE, ONE OF THE FACTORS WAS "(THE FEE CUSTOMARILY
CHARGED IN THE LOCALITY FOR SIMILAR LEGAL SERVICES."  DR 2 - 106
(B)(3).  211 VA., AT 313. 

/20/ VIRGINIA CODE ANN. SEC. 54 - 49 (1972) PROVIDES:  "
ORGANIZATION AND GOVERNMENT OF VIRGINIA STATE BAR.  -- THE SUPREME
COURT OF APPEALS MAY, FROM TIME TO TIME, PRESCRIBE, ADOPT, PROMULGATE
AND AMEND RULES AND REGULATIONS ORGANIZING AND GOVERNING THE
ASSOCIATION KNOWN AS THE VIRGINIA STATE BAR, COMPOSED OF THE ATTORNEYS
AT LAW OF THIS STATE, TO ACT AS AN ADMINISTRATIVE AGENCY OF THE COURT
FOR THE PURPOSE OF INVESTIGATING AND REPORTING THE VIOLATION OF SUCH
RULES AND REGULATIONS AS ARE ADOPTED BY THE COURT UNDER THIS ARTICLE TO
A COURT OF COMPETENT JURISDICTION FOR SUCH PROCEEDINGS AS MAY BE
NECESSARY, AND REQUIRING ALL PERSONS PRACTICING LAW IN THIS STATE TO BE
MEMBERS THEREOF IN GOOD STANDING." 

/21/ THE DISTRICT COURT STATED THAT STATE BAR ACTED IN ONLY A "MINOR
ROLE" AS FAR AS THE PRICE FIXING WAS CONCERNED, 355 F. SUPP., AT 496,
AND ONE MEMBER OF THE COURT OF APPEALS PANEL WAS PREPARED TO EXONERATE
THE STATE BAR BECAUSE ITS PARTICIPATION WAS SO MINIMAL AS TO BE
INSUFFICIENT TO IMPOSE SHERMAN ACT LIABILITY.  497 F.2D, AT 21 (CRAVEN,
J., CONCURRING AND DISSENTING).  OF COURSE, AN ALLEGED PARTICIPANT IN A
RESTRAINT OF TRADE MAY HAVE SO INSUBSTANTIAL A CONNECTION WITH THE
RESTRAINT THAT LIABILITY UNDER THE SHERMAN ACT WOULD NOT BE FOUND, SEE
UNITED STATE V. NATIONAL ASSN. OF REAL ESTATE BOARDS, 339 U.S., AT 495;
HOWEVER, THAT IS NOT THE CASE HERE.  THE STATE BARHS FEE SCHEDULE
REPORTS PROVIDED THE IMPETUS FOR THE COUNTY BAR, ON TWO OCCASIONS, TO
ADOPT MINIMUM-FEE SCHEDULES.  MORE IMPORTANT, THE STATE BAR'S ETHICAL
OPINION PROVIDED SUBSTANTIAL REASON FOR LAWYERS TO COMPLY WITH THE
MINIMUM-FEE SCHEDULES.  MORE IMPORTANT, THE STATE BAR'S ETHICAL
OPINIONS PROVIDED SUBSTANTIAL REASON FOR LAWYERS TO COMPLY WITH THE
MINIMUM-FEE SCHEDULES.  THOSE OPINIONS THREATENED PROFESSIONAL
DISCIPLINE FOR HABITUAL DISREGARD OF FEE SCHEDULES, AND THUS ATTORNEYS
KNEW THEIR LIVELIHOOD WAS IN JEOPARDY IF THEY DID SO.  EVEN WITHOUT THE
THREAT THE OPINIONS WOULD HAVE CONSTITUTED SUBSTANTIAL REASON TO ADHERE
TO THE SCHEDULES BECAUSE ATTORNEYS COULD BE EXPECTED TO COMPLY IN ORDER
TO ASSURE THAT THEY DID NOT DISCREDIT THEMSELVES BY DEPARTING FROM
PROFESSIONAL NORMS, AND PERHAPS BETRAYING THEIR PROFESSIONAL OATHS. 

/22/ THE STATE BAR ALSO CONTENDS THAT IT IS PROTECTED BY THE
ELEVENTH AMENDMENT.  SEE EDELMAN V. JORDAN, 415 U.S. 651 (1974). 
PETITIONERS DISPUTE THIS CONNECTION, AND THE DISTRICT COURT HAD NO
OCCASION TO REACH IT IN VIEW OF ITS HOLDING.  GIVEN THE RECORD BEFORE
US WE INTIMATE NO VIEW ON THE ISSUE, LEAVING IT FOR THE DISTRICT COURT
ON REMAND. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

ALAN B. MORRISON ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

ANDREW P. MILLER, ATTORNEY GENERAL OF VIRGINIA, ARGUED THE CAUSE FOR
RESPONDENT VIRGINIA STATE BAR.  WITH HIM ON THE BRIEF WERE ANTHONY F.
TROY, DEPUTY ATTORNEY GENERAL, AND STUART H. DUNN, ASSISTANT ATTORNEY
GENERAL.  LEWIS T. BOOKER ARGUED THE CAUSE FOR RESPONDENT FAIRFAX
COUNTY BAR ASSN. WITH HIM ON THE BRIEF WAS JOHN H. SHENEFIELD. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE ASSISTANT
ATTORNEY GENERAL KAUPER, GERALD P. NORTON, AND HOWARD E. SHAPIRO. 

(ELEANOR M. FOX FILED A BRIEF FOR THE ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK AS AMICUS CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JAMES D.
FELLERS AND H. BLAIR WHITE FOR THE AMERICAN BAR ASSN.; BY RICHARD C. MC
FARLAIN FOR THE NATIONAL ORGANIZATION OF BAR COUNSEL; BY LEROY JEFFERS
FOR THE STATE BAR OF TEXAS; BY WARREN H. RESH FOR THE STATE BAR OF
WISCONSIN; BY E. ROBERT WALLACH AND WALTER J. ROBINSON FOR THE BAR
ASSOCIATION OF SAN FRANCISCO; AND BY OWEN RALL AND PETER M. SFIKAS FOR
THE AMERICAN DENTAL ASSN.)
..END :







MURPHY V. FLORIDA, 421 U.S. 794 


       MURPHY V. FLORIDA

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 74 - 5116.  ARGUED APRIL 15, 1975 -- DECIDED JUNE 16,

           1975; 495 F.2D 553, AFFIRMED. 


PETITIONER, WHO WAS CONVICTED IN STATE COURT OF ROBBERY, CONTENDS IN
THIS HABEAS CORPUS PROCEEDING THAT HE WAS DENIED A FAIR TRIAL BECAUSE
JURORS HAD LEARNED FROM NEWS ACCOUNTS OF PRIOR FELONY CONVICTIONS OR
CERTAIN FACTS ABOUT THE ROBBERY CHARGE.  IN THE COURSE OF JURY
SELECTION 78 MEMBERS OF THE PANEL WERE QUESTIONED, 70 BEING EXCUSED (30
FOR PERSONAL REASONS, 20 PEREMPTORILY, AND 20 BY THE COURT AS HAVING
PREJUDGED PETITIONER), AND EIGHT BEING SELECTED (INCLUDING TWO
ALTERNATES).  THE DISTRICT COURT AND THE COURT OF APPEALS DENIED
RELIEF.  HELD: 

1. JUROR EXPOSURE TO INFORMATION ABOUT A STATE DEFENDANT'S PRIOR
CONVICTIONS OR TO NEWS ACCOUNTS OF THE CRIME WITH WHICH HE IS CHARGED
DO NOT ALONE PRESUMPTIVELY DEPRIVE THE DEFENDANT OF DUE PROCESS.  IRVIN
V. DOWD, 366 U.S. 717; RIDEAU V. LOUISIANA, 373 U.S. 723; ESTES V.
TEXAS, 381 U.S. 532; SHEPPARD V. MAXWELL, 384 U.S. 333, DISTINGUISHED. 
PP. 797 - 799. 

2.  THE VOIR DIRE IN THIS CASE INDICATES NO SUCH JUROR HOSTILITY TO
PETITIONER AS TO SUGGEST A PARTIALITY THAT COULD NOT BE SET ASIDE. 
THOUGH SOME JURORS VAGUELY RECALLED THE ROBBERY AND EACH HAD SOME
KNOWLEDGE OF PETITIONER'S PAST CRIMES, NONE BETRAYED ANY BELIEF IN THE
RELEVANCE TO THE ROBBERY CASE OF PETITIONER'S PAST, AND THERE WAS NO
INDICATION FROM THE CIRCUMSTANCES SURROUNDING PETITIONER'S TRIAL OR
FROM THE NUMBER OF THE PANEL EXCUSED FOR PREJUDGMENT OF PETITIONER, OF
INFLAMED COMMUNITY SENTIMENT TO COUNTER THE INDICIA OF IMPARTIALITY
DISCLOSED BY THE VOIR DIRE TRANSCRIPT.  THUS, IN THE TOTALITY OF THE
CIRCUMSTANCES, PETITIONER FAILED TO SHOW INHERENT PREJUDICE IN THE
TRIAL SETTING OR ACTUAL PREJUDICE FROM THE JURY-SELECTION PROCESS.  PP.
799 - 803. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BURGER,
C.J., FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 803. 
BRENNAN, J., FILED A DISSENTING OPINION, POST, P. 804. 

MR. JUSTICE MARSHALL DELILVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE PETITIONER WAS
DENIED A FAIR TRIAL BECAUSE MEMBERS OF THE JURY HAD LEARNED FROM NEWS
ACCOUNTS ABOUT A PRIOR FELONY CONVICTION OR CERTAIN FACTS ABOUT THE
CRIME WITH WHICH HE WAS CHARGED.  UNDER THE CIRCUMSTANCES OF THIS CASE,
WE FIND THAT PETITIONER HAS NOT BEEN DENIED DUE PROCESS, AND WE
THEREFORE AFFIRM THE JUDGMENT BELOW. 

        I 

PETITIONER WAS CONVICTED IN THE DADE COUNTY, FLA., CRIMINAL COURT IN
1970 OF BREAKING AND ENTERING A HOME, WHILE ARMED, WITH INTENT TO
COMMIT ROBBERY, AND OF ASSAULT WITH INTENT TO COMMIT ROBBERY.  THE
CHARGES STEMMED FROM THE JANUARY 1968 ROBBERY OF A MIAMI BEACH HOME AND
PETITIONER'S APPREHENSION, WITH THREE OTHERS, WHILE FLEEING FROM THE
SCENE. 

THE ROBBERY AND PETITIONER'S ARREST RECEIVED EXTENSIVE PRESS COVERAGE
BECAUSE PETITIONER HAD BEEN MUCH IN THE NEWS BEFORE.  HE HAD FIRST MADE
HIMSELF NOTORIOUS FOR HIS PART IN THE 1964 THEFT OF THE STAR OF INDIA
SAPPHIRE FROM A MUSEUM IN NEW YORK.  HIS FLAMBOYANT LIFESTYLE MADE HIM
A CONTINUING SUBJECT OF PRESS INTEREST; HE WAS GENERALLY REFERRED TO-
AT LEAST IN THE MEDIA--AS " MURPH THE SURF." 

BEFORE THE DATE SET FOR PETITIONER'S TRIAL ON THE INSTANT CHARGES,
HE WAS INDICTED ON TWO COUNTS OF MURDER IN BROWARD COUNTY, FLA.
THEREAFTER THE DADE COUNTY COURT DECLARED PETITIONER MENTALLY
INCOMPETENT TO STAND TRIAL; HE WAS COMMITTED TO A HOSPITAL NAD THE
PROSECUTOR NOLLE PROSSED THE ROBBERY INDICTMENT.  IN AUGUST 1968 HE WAS
INDICTED BY A FEDERAL GRAND JURY FOR CONSPIRING TO TRANSPORT STOLEN
SECURITIES IN INTERSTATE COMMERCE.  AFTER PETITIONER WAS ADJUDGED
COMPETENT FOR TRIAL, HE WAS CONVICTED ON ONE COUNT OF MURDER IN BROWARD
COUNTY (MARCH 1969) AND PLEADED GUILTY TO ONE COUNT OF THE FEDERAL
INDICTMENT INVOLVING STOLEN SECURITIES (DECEMBER 1969).  THE INDICTMENT
FOR ROBBERY WAS REFILED IN AUGUST 1969 AND CAME TO TRIAL ONE YEAR
LATER. 

THE EVENTS OF 1968 AND 1969 DREW EXTENSIVE PRESS COVERAGE.  EACH NEW
CASE AGAINST PETITIONER WAS CONSIDERED NEWSWORTHY, NOT ONLY IN DADE
COUNTY BUT ELSEWHERE AS WELL.  /1/ THE RECORD IN THIS CASE CONTAINS
SCORES OF ARTICLES REPORTING ON PETITIONER'S TRIALS AND TRIBULATIONS
DURING THIS PERIOD; MANY PURPORTEDLY RELATE STATEMENTS THAT PETITIONER
OR HIS ATTORNEY MADE TO REPORTERS. 

JURY SELECTION IN THE PRESENT CASE BEGAN IN AUGUST 1970.  SEVENTY
EIGHT JURORS WERE QUESTIONED.  OF THESE, 30 WERE EXCUSED FOR
MISCELLANEOUS PERSONAL REASONS; 20 WERE EXCUSED PREEMPTORILY BY THE
DEFENSE OR PROSECUTION; 20 WERE EXCUSED BY THE COURT AS HAVING
PREJUDGED PETITIONER; AND THE REMAINING EIGHT SERVED AS THE JURY AND
TWO ALTERNATES.  PETITIONER'S MOTIONS TO DISMISS THE CHOSEN JURORS, ON
THE GROUND THAT THEY WERE AWARE THAT HE HAD PREVIOUSLY BEEN CONVICTED
OF EITHER THE 1964 STAR OF INDIA THEFT OR THE BROWARD COUNTY MURDER,
WERE DENIED, AS WAS HIS RENEWED MOTION FOR A CHANGE OF VENUE BASED ON
ALLEGEDLY PREJUDICIAL PRETRIAL PUBLICITY. 

AT TRIAL, PETITIONER DID NOT TESTIFY OR PUT IN ANY EVIDENCE;
ASSERTEDLY IN PROTEST OF THE SELECTED JURY, HE DID NOT CROSS-EXAMINE
ANY OF THE STATE'S WITNESSES.  HE WAS CONVICTED ON BOTH COUNTS, AND
AFTER AN UNSUCCESSFUL APPEAL HE SOUGHT HABEAS CORPUS RELIEF IN THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA. 

THE DISTRICT COURT DENIED PETITIONER RELIEF, 363 F.SUPP.  1224
(1973), AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  495
F.2D 553 (1974).  WE GRANTED CERTIORARI, 419 U.S. 1088 (1974), IN ORDER
TO RESOLVE THE APPARENT CONFLICT BETWEEN THE DECISION BELOW AND THAT OF
THE THIRD CIRCUIT IN UNITED STATES EX REL. DOGGETT V. YEAGER, 472 F.2D
229 (1973), OVER THE APPLICABILITY OF MARSHALL V. UNITED STATES, 360
U.S. 310 (1959), TO STATE CRIMINAL PROCEEDINGS. 

        II 

THE DEFENDANT IN MARSHALL WAS CONVICTED OF DISPENSING CERTAIN DRUGS
WITHOUT A PRESCRIPTION.  IN THE COURSE OF THE TRIAL SEVEN OF THE JURORS
WERE EXPOSED TO VARIOUS NEWS ACCOUNTS RELATING THAT MARSHALL HAD
PREVIOUSLY BEEN CONVICTED OF FORGERY, THAT HE AND HIS WIFE HAD BEEN
ARRESTED FOR OTHER NARCOTICS OFFENSES, AND THAT HE HAD FOR SOME TIME
PRACTICED MEDICINE WITHOUT A LICENSE.  AFTER INTERVIEWING THE JURORS,
HOWEVER, THE TRIAL JUDGE DENIED A MOTION FOR A MISTRIAL, RELYING ON THE
JURORS' ASSURANCES THAT THEY COULD MAINTAIN IMPARTIALITY IN SPITE OF
THE NEWS ARTICLES. 

NOTING THAT THE JURORS HAD BEEN EXPOSED TO INFORMATION WITH A HIGH
POTENTIAL FOR PREJUDICE, THIS COURT REVERSED THE CONVICTION.  IT DID
SO, HOWEVER, EXPRESSLY "(IN THE EXERCISE OF (ITS) SUPERVISORY POWER TO
FORMULATE AND APPLY PROPER STANDARDS FOR ENFORCEMENT OF THE CRIMINAL
LAW IN THE FEDERAL COURTS," AND NOT AS A MATTER OF CONSTITUTIONAL
COMPULSION.  ID., AT 313. 

IN THE FACE OF SO CLEAR A STATEMENT, IT CANNOT BE MAINTAINED THAT
MARSHALL WAS A CONSTITUTIONAL RULING NOW APPLICABLE, THROUGH THE
FOURTEENTH AMENDMENT, TO THE STATES.  PETITIONER ARGUES, NONETHLESS,
THAT MORE RECENT DECISIONS OF THIS COURT HAVE APPLIED TO STATE CASES
THE PRINICPLE UNDERLYING THE MARSHALL DECISION.  /2/ THAT PERSONS WHO
HAVE LEARNED FROM NEWS SOURCES OF A DEFENDANT'S PRIOR CRIMINAL RECORD
ARE PRESUMED TO BE PREJUDICED.  WE CANNOT AGREE THAT MARSHALL HAS ANY
APPLICATION BEYOND THE FEDERAL COURTS. 

PETITIONER RELIES PRINCIPALLY UPON IRVIN V. DOWD, 366 U.S. 717
(1961), RIDEAU V. LOUISIANA, 373 U.S. 723 (1963), ESTES V. TEXAS, 381
U.S. 532 (1965), AND SHEPPARD V. MAXWELL, 384 U.S. 333 (1966).  IN EACH
OF THESE CASES, THIS COURT OVERTURNED A STATE COURT CONVICTION OBTAINED
IN A TRIAL ATMOSPHERE THAT HAD BEEN UTTERLY CORRUPTED BY PRESS
COVERAGE. 

IN IRVIN V. DOWD THE RURAL COMMUNITY IN WHICH THE TRIAL WAS HELD HAD
BEEN SUBJECTED TO A BARRAGE OF INFLAMMATORY PUBLICITY IMMEDIATELY PRIOR
TO TRIAL, INCLUDING INFORMATION OF THE DEFENDANT'S PRIOR CONVICTIONS,
HIS CONFESSION TO 24 BURGLARIES AND SIX MURDERS INCLUDING THE ONE FOR
WHICH HE WAS TRIED, AND HIS UNACCEPTED OFFER TO PLEAD GUILTY IN ORDER
TO AVOID THE DEATH SENTENCE.  AS A RESULT, EIGHT OF THE 12 JURORS HAD
FORMED AN OPINION THAT THE DEFENDANT WAS GUILTY BEFORE THE TRIAL BEGAN;
SOME WENT "SO FAR AS TO SAY THAT IT WOULD TAKE EVIDENCE TO OVERCOME
THEIR BELIEF" IN HIS GUILT.  366 U.S., AT 728.  IN THESE CIRCUMSTANCES,
THE COURT READILY FOUND ACTUAL PREJUDICE AGAINST THE PETITIONER TO A
DEGREE THAT RENDERED A FAIR TRIAL IMPOSSIBLE. 

PREJUDICE WAS PRESUMED IN THE CIRCUMSTANCES UNDER WHICH THE TRIALS
IN RIDEAU, ESTES, AND SHEPPARD WERE HELD.  IN THOSE CASES THE INFLUENCE
OF THE NEWS MEDIA, EITHER IN THE COMMUNITY AT LARGE OR IN THE COURTROOM
ITSELF, PERVADED THE PROCEEDINGS.  IN RIDEAU THE DEFENDANT HAD
"CONFESSED" UNDER POLICE INTERROGATION TO THE MURDER OF WHICH HE STOOD
CONVICTED.  A 20-MINUTE FILM OF HIS CONFESSION WAS BROADCAST THREE
TIMES BY A TELEVISION STATION IN THE COMMUNITY WHERE THE CRIME AND THE
TRIAL TOOK PLACE.  IN REVERSING, THE COURT DID NOT EXAMINE THE VOIR
DIRE FOR EVIDENCE OF ACTUAL PREJUDICE BECAUSE IT CONSIDERED THE TRIAL
UNDER REVIEW "BUT A HOLLOW FORMALITY"--, THE REAL TRIAL HAD OCCURED
WHEN TENS OF THOUSANDS OF PEOPLE, IN A COMMUNITY OF 150,000, HAD SEEN
AND HEARD THE DEFENDANT ADMIT HIS GUILT BEFORE THE CAMERAS. 

THE TRIAL IN ESTES HAD BEEN CONDUCTED IN A CIRCUS ATMOSPHERE, DUE IN
LARGE PART TO THE INTRUSIONS OF THE PRESS, WHICH WAS ALLOWED TO SIT
WITHIN THE BAR OF THE COURT AND TO OVERRUN IT WITH TELEVISION
EQUIPMENT.  SIMILARLY, SHEPPARD AROSE FROM A TRIAL INFECTED NOT ONLY BY
A BACKGROUND OF EXTREMELY INFLAMMATORY PUBLICITY BUT ALSO BY A
COURTHOUSE GIVEN OVER TO ACCOMODATE THE PUBLIC APPETITE FOR CARNIVAL. 
THE PROCEEDINGS IN THESE CASES WERE ENTIRELY LACKING IN THE SOLEMNITY
AND SOBRIETY TO WHICH A DEFENDANT IS ENTITLED IN A SYSTEM THAT
SUBSCRIBES TO ANY NOTION OF FAIRNESS AND REJECTS THE VERDICT OF A MOB. 
THEY CANNOT BE MADE TO STAND FOR THE PROPOSITION THAT JUROR EXPOSURE TO
INFORMATION ABOUT A STATE DEFENDANTHS PRIOR CONVICTIONS OR TO NEWS
ACCOUNTS OF THE CRIME WITH WHICH HE IS CHARGED ALONE PRESUMPTIVELY
DEPRIVES THE DEFENDANT OF DUE PROCESS.  TO RESOLVE THIS CASE, WE MUST
TURN, THEREFORE, TO ANY INDICATIONS IN THE TOTALITY OF CIRCUMSTANCES
THAT PETITIONER'S TRIAL WAS NOT FUNDAMENTALLY FAIR. 

III 

THE CONSTITUTIONAL STANDARD OF FAIRNESS REQUIRES THAT A DEFENDANT
HAVE "A PANEL OF IMPARTIAL, 'INDIFFERENT' JURORS."  IRVIN V. DOWD, 366
U.S., AT 722.  QUALIFIED JURORS NEED NOT, HOWEVER, BE TOTALLY IGNORANT
OF THE FACTS AND ISSUES INVOLVED. 

     " TO HOLD THAT THE MERE EXISTENCE OF ANY PRECONCEIVED NOTION
AS

  TO THE GUILT OR INNOCENCE OF AN ACCUSED, WITHOUT MORE, IS

  SUFFICIENT TO REBUT THE PRESUMPTION OF A PROSPECTIVE JUROR'S

  IMPARTIALITY WOULD BE TO ESTABLISH AN IMPOSSIBLE STANDARD.  IT IS

  SUFFICIENT IF THE JUROR CAN LAY ASIDE HIS IMPRESSION OR OPINION

  AND RENDER A VERDICT BASED ON THE EVIDENCE PRESENTED IN COURT." 

  ID., AT 723. 

AT THE SAME TIME, THE JUROR'S ASSURANCES THAT HE IS EQUAL TO THIS TASK
CANNOT BE DISPOSITIVE OF THE ACCUSED'S RIGHTS, AND IT REMAINS OPEN TO
THE DEFENDANT TO DEMONSTRATE "THE ACTUAL EXISTENCE OF SUCH AN OPINION
IN THE MIND OF THE JUROR AS WILL RAISE THE PRESUMPTION OF PARTIALITY." 
IBID. 

THE VOIR DIRE IN THIS CASE INDICATES NO SUCH HOSTILITY TO PETITIONER
BY THE JURORS WHO SERVED IN HIS TRIAL AS TO SUGGEST A PARTIALITY THAT
COULD NOT BE LAID ASIDE.  SOME OF THE JURORS HAD A VAGUE RECOLLECTION
OF THE ROBBERY WITH WHICH PETITIONER WAS CHARGED AND EACH HAD SOME
KNOWLEDGE OF PETITIONER'S PAST CRIMES, /3/ BUT NONE BETRAYED ANY BELIEF
IN THE RELEVANCE OF PETITIONER'S PAST TO THE PRESENT CASE.  /4/ INDEED,
FOUR OF THE SIX JURORS VOLUNTEERED THEIR VIEWS OF ITS IRRELEVANCE, AND
ONE SUGGESTED THAT PEOPLE WHO HAVE BEEN IN TROUBLE BEFORE ARE TOO OFTEN
SINGLED OUT FOR SUSPICION OF EACH NEW CRIME--A PREDISPOSITION THAT
COULD ONLY OPERATE IN PETITIONER'S FAVOR. 

IN THE ENTIRE VOIR DIRE TRANSCRIPT FURNISHED TO US, THERE IS ONLY
ONE COLLOQUY ON WHICH PETITIONER CAN BASE EVEN A COLORABLE CLAIM OF
PARTIALITY BY A JUROR.  IN RESPONSE TO A LEADING AND HYPOTHETICAL
QUESTION, PRESUPPOSING A TWO- OR THREE-WEEK PRESENTATION OF EVIDENCE
AGAINST PETITIONER AND HIS FAILURE TO PUT ON ANY DEFENSE, ONE JUROR
CONCEDED THAT HIS PRIOR IMPRESSION OF PETITIONER WOULD DISPOSE HIM TO
CONVICT.  /5/ WE CANNOT ATTACH GREAT SIGNIFICANCE TO THIS STATEMENT,
HOWEVER, IN LIGHT OF THE LEADING NATURE OF COUNSEL'S QUESTIONS AND THE
JUROR'S OTHER TESTIMONY INDICATING THAT HE HAD NO DEEP IMPRESSION OF
PETITIONER AT ALL. 

THE JUROR TESTIFIED THAT HE DID NOT KEEP UP WITH CURRENT EVENTS AND,
IN FACT, HAD NEVER HEARD OF PETITIONER UNTIL HE ARRIVED IN THE ROOM FOR
PROSPECTIVE JURORS WHERE SOME VENIREMEN WERE DISCUSSING HIM.  HE DID
NOT KNOW THAT PETITIONER WAS "A CONVICTED JEWEL THIEF" EVEN THEN; IT
WAS PETITIONER'S COUNSEL WHO INFORMED HIM OF THIS FACT.  AND HE
VOLUNTEERED THAT PETITIONER'S MURDER CONVICTION, OF WHICH HE HAD JUST
HEARD, WOULD NOT BE RELEVANT TO HIS GUILT OR INNOCENCE IN THE PRESENT
CASE, SINCE "(WE ARE NOT TRYING HIM FOR MURDER." 

EVEN THESE INDICIA OF IMPARTIALITY MIGHT BE DISREGARDED IN A CASE
WHERE THE GENERAL ATMOSPHERE IN THE COMMUNITY OR COURTROOM IS
SUFFICIENTLY INFLAMMATORY, BUT THE CIRCUMSTANCES SURROUNDING
PETITIONER'S TRIAL ARE NOT AT ALL OF THAT VARIETY.  PETITIONER ATTEMPTS
TO PORTRAY THEM AS INFLAMMATORY BY REFERENCE TO THE PUBLICITY TO WHICH
THE COMMUNITY WAS EXPOSED.  THE DISTRICT COURT FOUND, HOWEVER, THAT THE
NEWS ARTICLES CONCERNING PETITIONER HAD APPEARED ALMOST ENTIRELY DURING
THE PERIOD BETWEEN DECEMBER 1967 AND JANUARY 1969, THE LATTER DATE
BEING SEVEN MONTHS BEFORE THE JURY IN THIS CASE WAS SELECTED.  363 F.
SUPP., AT 1228.  THEY WERE, MOREOVER, LARGELY FACTUAL IN NATURE. 
COMPARE BECK V. WASHINGTON, 369 U.S. 541 (1962), WITH SHEPPARD V.
MAXWELL, SUPRA. 

THE LENGTH TO WHICH THE TRIAL COURT MUST GO IN ORDER TO SELECT
JURORS WHO APPEAR TO BE IMPARTIAL IS ANOTHER FACTOR RELEVANT IN
EVALUATING THOSE JUROR'S ASSURANCES OF IMPARTIALITY.  IN A COMMUNITY
WHERE MOST VENIREMEN WILL ADMIT TO A DISQUALIFYING PREJUDICE, THE
RELIABILITY OF THE OTHERS' PROTESTATIONS MAY BE DRAWN INTO QUESTION;
FOR IT IS THEN MORE PROBABLE THAT THEY ARE PART OF A COMMUNITY DEEPLY
HOSTILE TO THE ACCUSED, AND MORE LIKELY THAT THEY MAY UNWITTINGLY HAVE
BEEN INFLUENCED BY IT.  IN IRVIN V. DOWD, FOR EXAMPLE, THE COURT NOTED
THAT 90% OF THOSE EXAMINED ON THE POINT WER INCLINED TO BELIEVE IN THE
ACCUSED'S GUILT, AND THE COURT HAD EXCUSED FOR THIS CAUSE 268 OF THE
430 VENIREMEN.  IN THE PRESENT CASE, BY CONTRAST, 20 OF THE 78 PERSONS
QUESTIONED WERE EXCUSED BECAUSE THEY INDICATED AN OPINION AS TO
PETITIONER'S GUILT.  /6/ THIS MAY INDEED BE 20 MORE THAN WOULD OCCUR IN
THE TRIAL OF A TOTALLY OBSCURE PERSON, BUT IT BY NO MEANS SUGGESTS A
COMMUNITY WITH SENTIMENT SO POISONED AGAINST PETITIONER AS TO IMPEACH
THE INDIFFERENCE OF JURORS WHO DISPLAYED NO ANIMUS OF THEIR OWN. 

IN SUM, WE ARE UNABLE TO CONCLUDE, IN THE CIRCUMSTANCES PRESENTED IN
THIS CASE, THAT PETITIONER DID NOT RECEIVE A FAIR TRIAL.  PETITIONER
HAS FAILED TO SHOW THAT THE SETTING OF THE TRIAL WAS INHERENTLY
PREJUDICIAL OR THAT THE JURY SELECTION PROCESS OF WHICH HE COMPLAINS
PERMITS AN INFERENCE OF ACTUAL PREJUDICE.  THE JUDGMENT OF THE COURT OF
APPEALS MUST THEREFORE BE AFFIRMED.     /1/ SEE, E.G., NEW YORK TIMES,
MAY 9, 1968, P. 51 (SURRENDER ON MURDER INDICTMENT); JULY 3, 1968, P.
70 (HELD INCOMPETENT TO STAND TRIAL); AUG. 15, 1968, P. 44 (INDICTED IN
SECURITIES CASE); FEB. 18, 1969, P. 31 (MURDER TRIAL SCHEDULED); MAR.
2, 1968, P. 63 (CONVICTED OF MURDER). 

/2/ THIS WAS THE THEORY ADOPTED BY THE THIRD CIRCUIT IN UNITED
STATES EX REL. DOGGETT V. YEAGER, 472 F.2D 229 (1973). 

/3/ ONE JUROR WHO DID NOT KNOW THAT PETITIONER HAD BEEN PREVIOUSLY
CONVICTED FOR THE THEFT OF THE STAR OF INDIA SAPPHIRE, ONE WHO DID NOT
KNOW OF THE MURDER CONVICTION, AND ONE WHO HAD NEVER HEARD ABOUT THE
SECURITIES CASE WERE INFORMED ABOUT THEM BY PETITIONER'S COUNSEL, WHO
THEN ASKED WHETHER THAT KNOWLEDGE WOULD NOT PREJUDICE THEM AGAINST
PETITIONER.  WE WILL NOT READILY DISCOUNT THE ASSURANCES OF A JUROR
INSOFAR AS HIS EXPOSURE TO A DEFENDANT'S PAST CRIMES COMES FROM THE
DEFENDANT OR COUNSEL.  WE NOTE ALSO, AND DISAPPROVE, COUNSEL'S HABITUAL
REFERENCES TO HIS CLIENT, AT VOIR DIRE, AS " MURPH THE SURF" RATHER
THAN BY HIS NAME. 

/4/ WE MUST DISTINGUISH BETWEEN MERE FAMILIARITY WITH PETITIONER OR
HIS PAST AND AN ACTUAL PREDISPOSITION AGAINST HIM, JUST AS WE HAVE IN
THE PAST DISTINGUISHED LARGELY FACTUAL PUBLICITY FROM THAT WHICH IS
INVIDIOUS OR INFLAMMATORY.  E.G., BECK V. WASHINGTON, 369 U.S. 541, 556
(1962).  TO IGNORE THESE REAL DIFFERENCES IN THE POTENTIAL FOR
PREJUDICE WOULD NOT ADVANCE THE CAUSE OF FUNDAMENTAL FAIRNESS, BUT ONLY
MAKE IMPOSSIBLE THE TIMELY PROSECUTION OF PERSONS WHO ARE WELL KNOWN IN
THE COMMUNITY, WHETHER THEY BE NOTORIOUS OR MERELY PROMINENT. 

/5/ THE ENTIRE EXCHANGE APPEARS AT APP. 139: 

" Q. NOW, WHEN YOU GO INTO THAT JURY ROOM AND YOU DECIDE UPON
MURPHY'S GUILT OR INNOCENCE, YOU ARE GOING TO TAKE INTO ACCOUNT THAT
FACT THAT HE IS A CONVICTED MURDERER; ARENT'T YOU? 

A. NOT IF WE ARE LISTENING TO THE CASE, I WOULDN'T. 

Q. BUT YOU KNOW ABOUT IT? 

" A. HOW CAN YOU NOT KNOW ABOUT IT? 

" Q. FINE, THANK YOU. 

" WHEN YOU GO INTO THE JURY ROOM, THE FACT THAT HE IS A CONVICTED
MURDERER, THAT IS GOING TO INFLUENCE YOUR VERDICT; IS IT NOT? 

" A. WE ARE NOT TRYING HIM FOR MURDER. 

" Q. THE FACT THAT HE IS A CONVICTED MURDERER AND JEWEL THIEF, THAT
WOULD INFLUENCE YOUR VERDICT? 

" A. I DIDN'T KNOW HE WAS A CONVICTED JEWEL THIEF. 

" Q. OH, I SEE. 

" I AM SORRY I PUT WORDS IN YOUR MOUTH. 

" NOW, SIR, AFTER TWO OR THREE WEEKS OF BEING LOCKED UP IN A
DOWNTOWN HOTEL, AS THE COURT DETERMINES, AND AFTER HEARING THE STATE'S
CASE, AND AFTER HEARING NO CASE ON BEHALF OF MURPHY, AND HEARING NO
TESTIMONY FROM MURPHY SAYING, ' I AM INNOCENT, MR. (JUROR'S NAME),'--
WHEN YOU GO INTO THE JURY ROOM, SIR, ALL THESE FACTS ARE GOING TO
INFLUENCE YOUR VERDICT? 

" A. I IMAGINE IT WOULD BE. 

" Q. AND IN FACT, YOU ARE SAYING IF MURPHY DIDN'T TESTIFY, AND IF HE
DOESN'T OFFER EVIDENCE, ' MY EXPERIENCE OF HIM IS SUCH THAT RIGHT NOW I
WOULD FIND HIM GUILTY.' 

" A. I BELIEVE SO." 

/6/ IF PERSONS WHO WERE EXCUSED FOR OTHER REASONS ALSO EXHIBITED A
DISQUALIFYING OPINION AS TO GUILT, PETITIONER HAS NOT SO CLAIMED. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE JUDGMENT. 

I AGREE WITH MR. JUSTICE BRENNAN THAT THE TRIAL JUDGE WAS WOEFULLY
REMISS IN FAILING TO INSULATE PROSPECTIVE JURORS FROM THE BIZARRE MEDIA
COVERAGE OF THIS CASE AND IN NOT TAKING STEPS TO PREVENT PRETRIAL
DISCUSSION OF THE CASE AMONG THEM.  ALTHOUGH I WOULD NOT HESITATE TO
REVERSE PETITIONER'S CONVICTION IN THE EXERCISE OF OUR SUPERVISORY
POWERS, WERE THIS A FEDERAL CASE, I AGREE WITH THE COURT THAT THE
CIRCUMSTANCES OF PETITIONER'S TRIAL DID NOT RISE TO THE LEVEL OF A
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

MR. JUSTICE BRENNAN, DISSENTING. 

I DISSENT.  IRVIN V. DOWD, 366 U.S. 717 (1961), REQUIRES REVERSAL OF
THIS CONVICTION.  AS IN THAT CASE, PETITONER HERE WAS DENIED A FAIR
TRIAL.  THE RISK THAT TAINT OF WIDESPREAD PUBLICITY REGARDING HIS
CRIMINAL BACKGROUND, KNOWN TO ALL MEMBERS OF THE JURY, INFECTED THE
JURY'S DELIBERATIONS IS APPARENT, THE TRIAL COURT MADE NO ATTEMPT TO
PREVENT DISCUSSION OF THE CASE OR PETITIONER'S PREVIOUS CRIMINAL
EXPLOITS AMONG THE PROSPECTIVE JURORS, AND ONE JUROR FREELY ADMITTED
THAT HE WAS PREDISPOSED TO CONVICT PETITIONER. 

DURING VOIR DIRE, PETITIONER'S COUNSEL HAD THE FOLLOWING COLLOQUY
WITH THAT JUROR: 

     " Q. NOW, WHEN YOU GO INTO THAT JURY ROOM AND YOU DECIDE UPON

  MURPHY'S GUILT OR INNOCENCE, YOU ARE GOING TO TAKE INTO ACCOUNT

  THAT FACT THAT HE IS A CONVICTED MURDERER; AREN'T YOU? 

" A. NOT IF WE ARE LISTENING TO THE CASE, I WOULDN'T. 

 " Q. BUT YOU KNOW ABOUT IT? 

     " A. HOW CAN YOU NOT KNOW ABOUT IT? 

     " Q. FINE, THANK YOU. 

     " WHEN YOU GO INTO THE JURY ROOM, THE FACT THAT HE IS A

  CONVICTED MURDERER, THAT IS GOING TO INFLUENCE YOUR VERDICT; IS

  IT NOT? 

     " A. WE ARE NOT TRYING HIM FOR MURDER. 

     " Q. THE FACT THAT HE IS A CONVICTED MURDERER AND JEWEL THIEF,

  THAT WOULD INFLUENCE YOUR VERDICT? 

" A. I DIDN'T KNOW HE WAS A CONVICTED JEWEL THIEF. 

" Q. OH, I SEE. 

     " I AM SORRY I PUT WORDS IN YOUR MOUTH. 

     " NOW, SIR, AFTER TWO OR THREE WEEKS OF BEING LOCKED UP IN A

  DOWNTOWN HOTEL, AS THE COURT DETERMINES, AND AFTER HEARING THE

  STATE'S CASE, AND AFTER HEARING NO CASE ON BEHALF OF MURPHY, AND

  HEARING NO TESTIMONY FROM MURPHY SAYING, ' I AM INNOCENT, MR.

  (JUROR)--WHEN YOU GO INTO THE JURY ROOM, SIR, ALL THESE FACTS ARE

  GOING TO INFLUENCE YOUR VERDICT? 

     " A. I IMAGINE IT WOULD BE. 

    " Q. AND IN FACT, YOU ARE SAYING IF MURPHY DIDN'T TESTIFY, AND

  IF HE DOESN'T OFFER EVIDENCE, ' MY EXPERIENCE OF HIM IS SUCH THAT

  RIGHT NOW I WOULD FIND HIM GUILTY.' 

     " A. I BELIEVE SO." 

I CANNOT AGREE WITH THE COURT THAT THE OBVIOUS BIAS OF THIS JUROR
MAY BE OVERLOOKED SIMPLY BECAUSE THE JUROR'S RESPONSE WAS OCCASIONED BY
A "LEADING AND HYPOTHETICAL QUESTION," ANTE, AT 801.  INDEED, THE
HYPOTHETICAL BECAME REALITY WHEN PETITIONER CHOSE NOT TO TAKE THE STAND
AND OFFERED NO EVIDENCE.  THUS PETITIONER WAS TRIED BY A JUROR
PREDISPOSED, BECAUSE OF HIS KNOWLEDGE OF PETITIONER'S PREVIOUS CRIMES,
TO FIND HIM GUILTY OF THIS ONE. 

OTHERS WHO ULTIMATELY SERVED AS JURORS REVEALED SIMILAR PREJUDICE
TOWARD PETITIONER ON VOIR DIRE.  ONE JUROR CONCEDED THAT IT WOULD BE
DIFFICULT, DURING DELIBERATIONS, TO PUT OUT OF HIS MIND THAT PETITIONER
WAS A CONVICTED CRIMINAL.  HE ALSO ADMITTED THAT HE DID NOT "HOLD A
CONVICTED FELON IN THE SAME REGARD AS ANOTHER PERSON WHO HAS NEVER BEEN
CONVICTED OF A FELONY," AND ADMITTED FURTHER THAT HE HAD TERMED
PETITIONER A "MENACE." 

A THIRD JUROR TESTIFIED THAT SHE KNEW FROM SEVERAL SOURCES THAT
PETITIONER WAS A CONVICTED MURDERER, /1/ AND WAS AWARE THAT THE
COMMUNITY REGARDED PETITIONER AS A CRIMINAL WHO "SHOULD BE PUT AWAY." 
SHE DISCLAIMED HAVING A FIXED OPINION ABOUT THE RESULT SHE WOULD REACH,
BUT ACKNOWLEDGED THAT THE FACT THAT PETITIONER WAS A CONVICTED CRIMINAL
WOULD PROBABLY INFLUENCE HER VERDICT: 

     " Q. NOW, IF YOU GO INTO THAT JURY ROOM AND DELIBERATE WITH

  YOUR FELLOW JURORS, IN YOUR DELIBERATIONS, WILL YOU CONSIDER THE

FACT THAT MURPHY IS A CONVICTED MURDERER AND JEWEL THIEF? 

     " A. WELL, HE HAS BEEN CONVICTED OF MURDER.  SO, I GUESS THAT
IS WHAT I WOULD--, 

     " Q. YOU WOULD CONSIDER THAT IN YOUR VERDICT, RIGHT? 

     " A. RIGHT. 

     " Q. AND THAT WOULD INFLUENCE YOUR VERDICT; WOULD IT NOT? 

 " A. IF THAT IS WHAT YOU SAY, I GUESS IT WOULD. 

" Q. I AM NOT CONCERNED ABOUT WHAT I SAY, BECAUSE IF I SAID IT,

  THEY WOULDN'T PRINT IT.  IT WOULD INFLUENCE YOUR VERDICT? 

     " A. IT PROBABLY WOULD. 

        * * * * * 

     " Q. WHEN YOU GO INTO THAT JURY ROOM, YOU CANNOT FORGET THE

  FACT THAT IT IS MURPH THE SURF; THAT HE IS A CONVICTED MURDERER,

  AND A JEWEL THIEF--YOU CAN'T PUT THAT OUT OF YOUR MIND, NO MATTER

  WHAT THEY TELL YOU; CAN YOU, MA'AM? 

     " A. PROBABLY NOT. 

     " Q. AND IT WOULD INFLUENCE YOUR VERDICT; RIGHT? 

     " A. PROBABLY." 

STILL ANOTHER JUROR TESTIFIED THAT THE COMMENTS OF VENIRE MEMBERS IN
DISCUSSING THE CASE HAD MADE HIM "SICK TO (HIS) STOMACH."  HE TESTIFIED
THAT ONE VENIREMAN HAD SAID THAT PETITIONER WAS "THOROUGHLY ROTTEN,"
AND THAT ANOTHER HAD SAID:  " HANG HIM, HE'S GUILTY."  /2/ 

MOREOVER, THE COURT IGNORES THE CRUCIAL SIGNIFICANCE OF THE FACT
THAT AT NO TIME BEFORE OR DURING THIS DAILY BUILDUP OF PREJUDICE
AGAINST MURPHY DID THE TRIAL JUDGE INSTRUCT THE PROSPECTIVE JURORS NOT
TO DISCUSS THE CASE AMONG THEMSELVES.  INDEED THE TRIAL JUDGE TOOK NO
STEPS TO INSULATE THE JURORS FROM MEDIA COVERAGE OF THE CASE OR FROM
THE MANY NEWS ARTICLES THAT DISCUSSED PETITIONER'S LAST CRIMINAL
EXPLOITS. 

IT IS OF NO MOMENT THAT SEVERAL JURORS ULTIMATELY TESTIFIED THAT
THEY WOULD TRY TO EXCLUDE FROM THEIR DELIBERATIONS THEIR KNOWLEDGE OF
PETITIONER'S PAST MISDEEDS AND OF HIS COMMUNITY REPUTATION.  IRVIN HELD
IN LIKE CIRCUMSTANCES THAT LITTLE WEIGHT COULD BE ATTACHED TO SUCH
SELFSERVING PROTESTATIONS: 

" NO DOUBT EACH JUROR WAS SINCERE WHEN HE SAID THAT HE WOULD BE FAIR
AND IMPARTIAL TO PETITIONER, BUT THE PSYCHOLOGICAL IMPACT REQUIRING
SUCH A DECLARATION BEFORE ONE'S FELLOWS IS OFTEN ITS FATHER.  WHERE SO
MANY, SO MANY TIMES, ADMITTED PREJUDICE, SUCH A STATEMENT OF
IMPARTIALITY CAN BE GIVEN LITTLE WEIGHT.  AS ONE OF THE JURORS PUT IT,
' YOU CAN'T FORGET WHAT YOU HEAR AND SEE.'"  366 U.S., AT 728. 

ON THE RECORD OF THIS VOIR DIRE, THEREFORE, THE CONCLUSION IS TO ME
INESCAPABLE THAT THE ATTITUDE OF THE ENTIRE VENIRE TOWARD MURPHY
REFLECTED THE "THEN CURRENT COMMUNITY PATTERN OF THOUGHT AS INDICATED
BY THE POPULAR NEWS MEDIA," ID., AT 725, AND WAS INFECTED WITH THE
TAINT OF THE VIEW THAT HE WAS A "CRIMINAL" GUILTY OF NOTORIOUS
OFFENSES, INCLUDING THAT FOR WHICH HE WAS ON TRIAL.  IT IS A PLAIN
CASE, FROM A REVIEW OF THE ENTIRE VOIR DIRE, WHERE "THE EXTENT AND
NATURE OF THE PUBLICITY HAS CAUSED SUCH A BUILD UP OF PREJUDICE THAT
EXCLUDING THE PRECONCEPTION OF GUILT FROM THE DELIBERATIONS WOULD BE
TOO DIFFICULT FOR THE JURY TO BE HONESTLY FOUND IMPARTIAL."  UNITED
STATES EX REL. BLOETH V. DENNO, 313 F.2D 364, 372 (CA2 1963).  IN MY
VIEW, THE DENIAL OF A CHANGE OF VENUE WAS THEREFORE PREJUDICIAL ERROR,
AND I WOULD REVERSE THE CONVICTION. 

/1/ THE JUROR STATED THAT SHE ACQUIRED A PORTION OF HER KNOWLEDGE OF
PETITIONER'S CRIMINAL BACKGROUND FROM AN ARTICLE IN THAT WEEK'S MIAMI
HERALD ENTITLED " DEFENSE EXHAUSTS JURY CHALLENGES IN MURPHY TRIAL,"
WHICH INCLUDED THE SENTENCE:  " JURY SELECTION WILL CONTINUE TODAY IN
THE TRIAL OF BEACH BOY HOODLUM SERVING A LIFE SENTENCE FOR MURDER IN
CONNECTION WITH THE WHISKY CREEK SLAYING OF TWO SECRETARIES IN 1968." 

/2/ A JUROR CHOSEN AS AN ALTERNATE TESTIFIED THAT SHE DID NOT KNOW
WHETHER SHE "WOULD GIVE THE SAME FAIR AND IMPARTIAL TREATMENT TO A
CONVICTED KILLER AS (SHE) WOULD TO ANOTHER PERSON."  SHE ADDED THAT SHE
DID NOT KNOW WHETHER SHE COULD BE FIAR AND IMPARTIAL IN HER
DELIBERATIONS IN THE CASE: 

" Q. THE QUESTION IS, WOULD YOU COMPROMISE YOUR VERDICT; COULD YOU
GO THERE--AND SAY THE STATE PROVED HIS GUILT AND THE DEFENSE PROVED
THAT HE WAS INSANE, BUT, ' I'M NOT GOING TO LET THAT GUY WALK THE
STREETS, SO I'M GOING TO FIND HIM GUILTY, PERIOD?' 

" WOULD YOU DO THAT? 

" A. I DON'T KNOW AT THIS POINT. 

" Q. RIGHT. 

" SO IN FACT, MA'AM, AT THIS POINT YOU CANNOT TELL US WHETHER YOU
CAN GIVE A FAIR AND IMPARTIAL DELIBERATION ABOUT MURPHY, NUMBER ONE,
BECAUSE OF THE LACK OF EVIDENCE; AND NUMBER TWO, BECAUSE OF WHAT YOU
KNOW ABOUT MURPHY; ISN'T THAT A FACT? 

" A. YES." 

HARVEY S. SWICKLE ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

WILIAM L. ROGERS, ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED THE
CAUSE FOR RESPONDENT PRO HAC VICE.  WITH HIM ON THE BRIEF WAS ROBERT L.
SHEVIN ATTORNEY GENERAL. 
..END :





















BIGELOW V. VIRGINIA, 421 U.S. 809 


       BIGELOW V. VIRGINIA

        APPEAL FROM THE SUPREME COURT OF VIRGINIA

        NO. 73 - 1309.  ARGUED DECEMBER 18, 1974--DECIDED JUNE 16,

           1975; 214 VA. 341, 200 S.E. 2D 680, REVERSED. 


APPELLANT, THE MANAGING EDITOR OF A WEEKLY NEWSPAPER PUBLISHED IN
VIRGINIA, AS THE RESULT OF PUBLISHING A NEW YORK CITY ORGANIZATION'S
ADVERTISEMENT ANNOUNCING THAT IT WOULD ARRANGE LOW-COST PLACEMENTS FOR
WOMEN WITH UNWANTED PREGNANCIES IN ACCREDITED HOSPITALS AND CLINICS IN
NEW YORK (WHERE ABORTIONS WERE LEGAL AND THERE WERE NO RESIDENCY
REQUIREMENTS), WAS CONVICTED OF VIOLATING A VIRGINIA STATUTE MAKING IT
A MISDEMEANOR, BY THE SALE OR CIRCULATION OF ANY PUBLICATION, TO
ENCOURAGE OR PROMPT THE PROCESSING OF AN ABORTION.  THE TRIAL COURT HAD
REJECTED APPELLANT'S CLAIM THAT THE STATUTE WAS UNCONSTITUTIONAL UNDER
THE FIRST AMENDMENT AS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AS BEING FACIALLY OVERBROAD AND AS APPLIED TO APPELLANT.  THE VIRGINIA
SUPREME COURT AFFIRMED THE CONVICTION, ALSO REJECTING APPELLANT'S FIRST
AMENDMENT CLAIM AND HOLDING THAT THE ADVERTISEMENT WAS A COMMERCIAL ONE
WHICH COULD BE CONSTITUTIONALLY PROHIBITED UNDER THE STATE'S POLICE
POWER, AND THAT BECAUSE APPELLANT HIMSELF LACKED A LEGITIMATE FIRST
AMENDMENT INTEREST INASMUCH AS HIS ACTIVITY "WAS OF A PURELY COMMERCIAL
NATURE," HE HAD NO STANDING TO CHALLENGE THE STATUTE AS BEING FACIALLY
OVERBROAD.  HELD: 

1.  THOUGH AN INTERVENING AMENDMENT OF THE STATUTE AS A PRACTICAL
MATTER MOOTS THE OVERBREADTH ISSUE FOR THE FUTURE, THE VIRGINIA COURTS
ERRED IN DENYING APPELLANT STANDING TO RAISE THAT ISSUE SINCE "PURE
SPEECH" RATHER THAN CONDUCT WAS INVOLVED AND NO CONSIDERATION WAS GIVEN
TO WHETHER OR NOT THE ALLEGED OVERBREADTH WAS SUBSTANTIAL.  PP. 815 -
818. 

2.  THE STATUTE AS APPLIED TO APPELLANT INFRINGED CONSTITUTIONALLY
PROTECTED SPEECH UNDER THE FIRST AMENDMENT.  PP. 818 - 829. 

(A) THE VIRGINIA COURTS ERRED IN ASSUMING THAT ADVERTISING, AS SUCH,
WAS ENTITLED TO NO FIRST AMENDMENT PROTECTION AND THAT APPELLANT HAD NO
LEGITIMATE FIRST AMENDMENT INTEREST, SINCE SPEECH IS NOT STRIPPED OF
FIRST AMENDMENT PROTECTION MERELY BECAUSE IT APPEARS IN THE FORM OF A
PAID COMMERCIAL ADVERTISEMENT, AND THE FACT THAT THE ADVERTISEMENT IN
QUESTION HAD COMMERCIAL ASPECTS OR REFLECTED THE ADVERTISER'S
COMMERCIAL INTERESTS DID NOT NEGATE ALL FIRST AMENDMENT GUARANTEES. 
PP. 818 - 821. 

(B) VIEWED IN ITS ENTIRETY, THE ADVERTISEMENT CONVEYED INFORMATION
OF POTENTIAL INTEREST AND VALUE TO A DIVERSE AUDIENCE CONSISTING OF NOT
ONLY READERS POSSIBLY IN NEED OF THE SERVICES OFFERED, BUT ALSO THOSE
CONCERNED WITH THE SUBJECT MATTER OR THE LAW OF ANOTHER STATE, AND
READERS SEEKING REFORM IN VIRGINIA; AND THUS APPELLANT'S FIRST
AMENDMENT INTERESTS COINCIDED WITH THE CONSTITUTIONAL INTERESTS OF THE
GENERAL PUBLIC.  PP. 821 - 822. 

(C) A STATES DOES NOT ACQUIRE POWER OR SUPERVISION OVER ANOTHER
STATE'S INTERNAL AFFAIRS MERELY BECAUSE ITS OWN CITIZENS' WELFARE AND
HEALTH MAY BE AFFECTED WHEN THEY TRAVEL TO THE OTHER STATE, AND WHILE A
STATE MAY SEEK TO DISSEMINATE INFORMATION SO AS TO ENABLE ITS CITIZENS
TO MAKE BETTER INFORMED DECISIONS WHEN THEY LEAVE, IT MAY NOT, UNDER
THE GUISE OF EXERCISING INTERNAL POLICE POWERS, BAR A CITIZEN OF
ANOTHER STATE FROM DISSEMINATING INFORMATION ABOUT AN ACTIVITY THAT IS
LEGAL IN THAT STATE, AS THE PLACEMENT SERVICES HERE WERE AT THE TIME
THEY WERE ADVERTISED.  PP. 822 - 825. 

(D) VIRGINIA'S ASSERTED INTEREST IN REGULATING WHAT VIRGINIANS MAY
HEAR OR READ ABOUT THE NEW YORK SERVICES OR IN SHIELDING ITS CITZENS
FROM INFORMATION ABOUT ACTIVITIES OUTSIDE VIRGINIA'S BORDERS (WHICH
VIRGINIA'S POLICE POWERS DO NOT REACH) IS ENTITLED TO LITTLE, IF ANY,
WEIGHT UNDER THE CIRCUMSTANCES.  PP. 826 - 828. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, BRENNAN, STEWART, MARSHALL, AND POWELL, JJ.,
JOINED.  REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH WHITE, J.,
JOINED, POST, P. 829. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

AN ADVERTISEMENT CARRIED IN APPELLANT'S NEWSPAPER LED TO HIS
CONVICTION FOR A VIOLATION OF A VIRGINIA STATUTE THAT MADE IT A
MISDEMEANOR, BUT THE SALE OR CIRCULATION OF ANY PUBLICATION, TO
ENCOURAGE OR PROMPT THE PROCURING OF AN ABORTION.  THE ISSUE HERE IS
WHETHER THE EDITOR-APPELLANT'S FIRST AMENDMENT RIGHTS WERE
UNCONSTITUTIONALLY ABRIDGED BY THE STATUTE.  THE FIRST AMENDMENT, OF
COURSE, IS APPLICABLE TO THE STATES THROUGH THE FOURTEENTH AMENDMENT. 
SCHNEIDER V. STATE, 308 U.S. 147, 160 (1939). 

        I 

THE VIRGINIA WEEKLY WAS A NEWSPAPER PUBLISHED BY THE VIRGINIA WEEKLY
ASSOCIATES OF CHARLOTTESVILLE.  IT WAS ISSUED IN THAT CITY AND
CIRCULATED IN ALBEMARLE COUNTY, WITH PARTICULAR FOCUS ON THE CAMPUS OF
THE UNIVERSITY OF VIRGINIA.  APPELLANT, JEFFREY C. BIGELOW, WAS A
DIRECTOR AND THE MANAGING EDITOR AND RESPONSIBLE OFFICER OF THE
NEWSPAPER.  /1/ 

ON FEBRUARY 8, 1971, THE WEEKLY'S VOL. V, NO. 6, WAS PUBLISHED AND
CIRCULATED UNDER THE DIRECT RESPONSIBILITY OF THE APPELLANT.  ON PAGE 2
OF THAT ISSUE WAS THE FOLLOWING ADVERTISEMENT:

     "UNWANTED PREGNANCY

        LET US HELP YOU

    ABORTIONS ARE NOW LEGAL IN NEW YORK. 

        THERE ARE NO RESIDENCY REQUIREMENTS. 

        FOR IMMEDIATE PLACEMENT IN ACCREDITED

        HOSPITALS AND CLINICS AT LOW COST

        CONTACT

        WOMEN'S PAVILION

   515 MADISON AVENUE

        NEW YORK, N.Y. 10022

      OR CALL ANY TIME

        (212) 371 - 6670 OR (212) 371 - 6650

        AVAILABLE 7 DAYS A WEEK

STRICTLY CONFIDENTIAL.  WE WILL MAKE

        ALL ARRANGEMENTS FOR YOU AND HELP YOU

        WITH INFORMATION AND COUNSELING."  IT IS TO BE OBSERVED
THAT THE ADVERTISEMENT ANNOUNCED THAT THE WOMEN'S PAVILION OF NEW YORK
CITY WOULD HELP WOMEN WITH UNWANTED PREGNANCIES TO OBTAIN "IMMEDIATE
PLACEMENT IN ACCREDITED HOSPITALS AND CLINICS AT LOW COST" AND WOULD
"MAKE ALL ARRANGEMENTS" ON A "STRICTLY CONFIDENTIAL"  BASIS; THAT IF
OFFERED "INFORMATION AND COUNSELING"; THAT IT GAVE THE ORGANIZATION'S
ADDRESS AND TELEPHONE NUMBERS; AND THAT IT STATED THAT ABORTIONS "ARE
NOW LEGAL IN NEW YORK" AND THERE "ARE NO RESIDENCY REQUIREMENTS." 
ALTHOUGH THE ADVERTISEMENT DID NOT CONTAIN THE NAME OF ANY LICENSED
PHYSICIAN, THE "PLACEMENT" TO WHICH IT REFERRED WAS TO "ACCREDITED
HOSPITALS AND CLINICS." 

ON MAY 13 BIGELOW WAS CHARGED WITH VIOLATING VA. CODE ANN. SEC. 18.1
- 63 (1960).  THE STATUTE AT THAT TIME READ: 

     " IF ANY PERSON, BY PUBLICATION, LECTURE, ADVERTISEMENT, OR BY

  THE SALE OR CIRCULATION OF ANY PUBLICATION, OR IN ANY OTHER

  MANNER, ENCOURAGE OR PROMPT THE PROCURING OF ABORTION OR

  MISCARRIAGE, HE SHALL BE GUILTY OF A MISDEMEANOR."  /2/

SHORTLY AFTER THE STATUTE WAS UTILIZED IN BIGELOW'S CASE, AND
APPARENTLY BEFORE IT WAS EVER USED AGAIN, THE VIRGINIA LEGISLATURE
AMENDED IT AND CHANGED ITS PRIOR APPLICATION AND SCOPE.  /3/ 

APPELLANT WAS FIRST TRIED AND CONVICTED IN THE COUNTY COURT OF
ALBEMARLE COUNTY.  HE APPEALED TO THE CIRCUIT COURT OF THAT COUNTY
WHERE HE WAS ENTITLED TO A DE NOVO TRIAL.  VA. CODE ANN. SEC. 16.1 -
132 AND 16.1 - 136 (1960).  IN THE CIRCUIT COURT HE WAIVED A JURY AND
IN JULY 1971 WAS TRIED TO THE JUDGE.  THE EVIDENCE CONSISTED OF
STIPULATED FACTS; AN EXCERPT, CONTAINING THE ADVERTISEMENT IN QUESTION,
FROM THE WEEKLY'S ISSUE OF FEBRUARY 8, 1971; AND THE JUNE 1971 ISSUE OF
REDBOOK MAGAZINE, CONTAINING ABORTION INFORMATION AND DISTRIBUTED IN
VIRGINIA AND IN ALBEMARLE COUNTY.  APP. 3, 8.  THE COURT REJECTED
APPELLANT'S CLAIM THAT THE STATUTE WAS UNCONSTITUTIONAL AND ADJUDGED
HIM GUILTY.  HE WAS SENTENCED TO PAY A FINE OF $500, WITH $350 THEREOF
SUSPENDED "CONDITIONED UPON NO FURTHER VIOLATION" OF THE STATUTE.  APP.
5. 

THE SUPREME COURT OF VIRGINIA GRANTED REVIEW AND, BY A 4 - 2 VOTE,
AFFIRMED BIGELOW'S CONVICTION.  213 VA. 191, 191 S.E. 2D 173 (1972). 
THE COURT FIRST REJECTED THE APPELLANT'S CLAIM THAT THE ADVERTISEMENT
WAS PURELY INFORMATIONAL AND THUS WAS NOT WITHIN THE "ENCOURAGE OR
PROMPT" LANGUAGE OF THE STATUTE.  IT HELD, INSTEAD, THAT THE
ADVERTISEMENT "CLEARLY EXCEEDED AN INFORMATIONAL STATUS" AND
"CONSTITUTED AN ACTIVE OFFER TO PERFORM A SERVICE, RATHER THAN A
PASSIVE STATEMENT OF FACT."  ID., AT 193, 191 S.E. 2D, AT 174.  IT THEN
REJECTED BIGELOW'S FIRST AMENDMENT CLAIM.  THIS, THE COURT SAID, "MAY
BE CONSTITUTIONALLY PROHIBITED BY THE STATE," PARTICULARLY "WHERE, AS
HERE, THE ADVERTISING RELATES TO THE MEDICAL-HEALTH FIELD."  ID., AT
193 - 195, 191 S.E. 2D, AT 174 - 176.  THE ISSUE, IN THE COURT'S VIEW,
WAS WHETHER THE STATUTE WAS A VALID EXERCISE OF THE STATE'S POLICE
POWER.  IT ANSWERED THIS QUESTION IN THE AFFIRMATIVE, NOTING THAT THE
STATUTE'S GOAL WAS "TO ENSURE THAT PREGNANT WOMEN IN VIRGINIA WHO
DECIDED TO HAVE ABORTIONS COME TO THEIR DECISIONS WITHOUT THE
COMMERCIAL ADVERTISING PRESSURE USUALLY INCIDENTAL TO THE SALE OF A BOX
OF SOAP POWDER."  ID., AT 196, 191 S.E. 2D, AT 176.  THE COURT THEN
TURNED TO BIGELOW'S CLAIM OF OVERBREADTH.  IT HELD THAT BECAUSE THE
APPELLANT HIMSELF LACKED A LEGITIMATE FIRST AMENDMENT INTEREST,
INASMUCH AS HIS ACTIVITY "WAS OF A PURELY COMMERCIAL NATURE," HE HAD NO
"STANDING TO RELY UPON THE HYPOTHETICAL RIGHTS OF THOSE IN THE NON
COMMERCIAL ZONE."  ID., AT 198, 191 S.E.2D, AT 177 - 178. 

BEGELOW TOOK A TIMELY APPEAL TO THIS COURT.  DURING THE PENDENCY OF
HIS APPEAL, ROE V. WADE, 410 U.S. 113 (1973), AND DOE V. BOLTON, 410
U.S. 179 (1973), WERE DECIDED.  WE SUBSEQUENTLY VACATED BIGELOW'S
JUDGMENT OF CONVICTION AND REMANDED THE CASE FOR FURTHER CONSIDERATION
IN THE LIGHT OF ROE AND DOE.  413 U.S. 909 (1973).  /4/ 

THE SUPREME COURT OF VIRGINIA, ON SUCH RECONSIDERATION, BUT WITHOUT
FURTHER ORAL ARGUMENT, AGAIN AFFIRMED APPELLANT'S CONVICTION, OBSERVING
THAT NEITHER ROE NOR DOE "MENTIONED THE SUBJECT OF ABORTION
ADVERTISING" AND FINDING NOTHING IN THOSE DECISIONS "WHICH IN ANY WAY
AFFECTS OUR EARLIER VIEW."  /5/ 214 VA. 341, 342, 200 S.E.2D 680
(1973).  ONCE AGAIN, BIGELOW APPEALED.  WE NOTED PROBABLE JURISDICTION
IN ORDER TO REVIEW THE IMPORTANT FIRST AMENDMENT ISSUE PRESENTED.  418
U.S. 909 (1974). 

        II 

THIS COURT OFTEN HAS RECOGNIZED THAT A DEFENDANT'S STANDING TO
CHALLENGE A STATUTE ON FIRST AMENDMENT GROUNDS AS FACIALLY OVERBROAD
DOES NOT DEPEND UPON WHETHER HIS OWN ACTIVITY IS SHOWN TO BE
CONSTITUTIONALLY PRIVILEGED.  THE COURT CONSISTENTLY HAS PERMITTED
"ATTACKS ON OVERLY BROAD STATUTES WITH NO REQUIREMENT THAT THE PERSON
MAKING THE ATTACK DEMONSTRATE THAT HIS OWN CONDUCT COULD NOT BE
REGULATED BY A STATUTE DRAWN WITH THE REQUISITE NARROW SPECIFICITY." 
DOMBROWSKI V. PFISTER, 380 U.S. 479, 486 (1965).  SEE ALSO GRAYNED V.
CITY OF ROCKFORD, 408 U.S. 104, 114 (1972); GOODING V. WILSON, 405 U.S.
518, 520 - 521 (1972); COATES V. CITY OF CINCINNATI, 402 U.S. 611, 616
(1971), AND ID., AT 619 - 620 (WHITE, J., DISSENTING); NAACP V. BUTTON
371 U.S. 415, 432 (1963); THORNHILL V. ALABAMA, 310 U.S. 88, 97 - 98
(1940).  THE SUPREME COURT OF VIRGINIA ITSELF RECOGNIZED THIS PRINCIPLE
WHEN IT RECENTLY STATED THAT "PERSONS WHO ENGAGE IN NON-PRIVILEGED
CONDUCT ARE NOT PRECLUDED FROM ATTACKING A STATUTE UNDER WHICH THEY
WERE CONVICTED."  OWENS V. COMMONWEALTH, 211 VA. 633, 638 - 639, 179
S.E.2D 477, 481 (1971).  " FOR IN APPRAISING A STATUTE'S INHIBITORY
EFFECT UPON (FIRST AMENDMENT) RIGHTS, THIS COURT HAS NOT HESITATED TO
TAKE INTO ACCOUNT POSSIBLE APPLICATIONS OF THE STATUTE IN OTHER FACTUAL
CONTEXTS BESIDES THAT AT BAR."  NAACP V. BUTTON, 371 U.S., AT 432.  SEE
GENERALLY NOTE, THE FIRST AMENDMENT OVERBREADTH DOCTRINE, 83 HARV. L.
REV. 844, 847 - 848 (1970). 

THIS "EXCEPTION TO THE USUAL RULES GOVERNING STANDING," DOMBROWSKI
V. PFISTER, 380 U.S., AT 486, REFLECTS THE TRANSCENDENT VALUE TO ALL
SOCIETY OF CONSTITUTIONALLY PROTECTED EXPRESSION.  WE GIVE A DEFENDANT
STANDING TO CHALLENGE A STATUTE ON GROUNDS THAT IT IS FACIALLY
OVERBROAD, REGARDLESS OF WHETHER HIS OWN CONDUCT COULD BE REGULATED BY
A MORE NARROWLY DRAWN STATUTE, BECAUSE OF THE "DANGER OF TOLERATING, IN
THE AREA OF FIRST AMENDMENT FREEDOMS, THE EXISTENCE OF A PENAL STATUTE
SUSCEPTIBLE OF SWEEPING AND IMPROPER APPLICATION."  NAACP V. BUTTON,
371 U.S., AT 433. 

OF COURSE, IN ORDER TO HAVE STANDING, AN INDIVIDUAL MUST PRESENT
MORE THAN "(ALLEGATIONS OF A SUBJECTIVE 'CHILL.'"  THERE MUST BE A
"CLAIM OF SPECIFIC PRESENT OBJECTIVE HARM OR A THREAT OF SPECIFIC
FUTURE HARM"  LAIRD V. TATUM, 408 U.S. 1, 13 - 14 (1972).  THAT
REQUIREMENT, HOWEVER, SURELY IS MET UNDER THE CIRCUMSTANCES OF THIS
CASE, WHERE THE THREAT OF PROSECUTION ALREADY HAS BLOSSOMED INTO THE
REALITY OF A CONVICTION, AND WHERE THERE CAN BE NO DOUBT CONCERNING THE
APPELLANT'S PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY.  SEE
BAKER V. CARR, 369 U.S. 186, 204 (1962).  THE INJURY OF WHICH APPELLANT
COMPLAINS IS ONE TO HIM AS AN EDITOR AND PUBLISHER OF A NEWSPAPER; HE
IS NOT SEEKING TO RAISE THE HYPOTHETICAL RIGHTS OF OTHERS.  SEE MOOSE
LODGE NO. 107 V. IRVIS, 407 U.S. 163, 166 (1972); BREARD V. ALEXANDRIA,
341 U.S. 622, 641 (1951).  INDEED, UNLIKE SOME CASES IN WHICH THE
STANDING ISSUE SIMILARLY HAS BEEN RAISED, THE FACTS OF THIS CASE WELL
ILLUSTRATE "THE STATUTE'S POTENTIAL FOR SWEEPING AND IMPROPER
APPLICATIONS."  GOODING V. WILSON, 405 U.S., AT 532 - 533 (BURGER,
C.J., DISSENTING). 

DECLARING A STATUTE FACIALLY UNCONSTITUTIONAL BECAUSE OF OVERBREADTH
"IS, MANIFESTLY, STRONG MEDICINE," AND "HAS BEEN EMPLOYED BY THE COURT
SPARINGLY AND ONLY AS A LAST RESORT."  BROADRICK V. OKLAHOMA, 413 U.S.
601, 613 (1973).  BUT WE CONCLUDE THAT THE VIRGINIA COURTS ERRED IN
DENYING BIGELOW STANDING TO MAKE THIS CLAIM, WHERE "PURE SPEECH" RATHER
THAN CONDUCT WAS INVOLVED, WITHOUT ANY CONSIDERATION OF WHETHER THE
ALLEGED OVERBREADTH WAS OR WAS NOT SUBSTANTIAL.  ID., AT 615, 616.  THE
SUPREME COURT OF VIRGINIA PLACED NO EFFECTIVE LIMITING CONSTRUCTION ON
THE STATUTE.  INDEED, IT CHARACTERIZED THE RIGHTS OF DOCTORS, HUSBANDS,
AND LECTURERS AS "HYPOTHETICAL," AND THUS SEEMED TO IMPLY THAT,
ALTHOUGH THESE WERE IN THE NONCOMMERCIAL ZONE, THE STATUTE MIGHT APPLY
TO THEM, TOO. 

IN VIEW OF THE STATUTE'S AMENDMENT SINCE BIGELOW'S CONVICTION IN
SUCH A WAY AS "EFFECTIVELY TO REPEAL" ITS PRIOR APPLICATION, THERE IS
NO POSSIBILITY NOW THAT THE STATUTE'S PRE-1972 FORM WILL BE APPLIED
AGAIN TO APPELLANT OR WILL CHILL THE RIGHTS OF OTHERS.  AS A PRACTICAL
MATTER, THE ISSUE OF ITS OVERBREADTH HAS BECOME MOOT FOR THE FUTURE. 
WE THEREFORE DECLINE TO REST OUR DECISION ON OVERBREADTH AND WE PASS ON
TO THE FURTHER INQUIRY, OF GREATER MOMENT NOT ONLY FOR BIGELOW BUT FOR
OTHERS, WHETHER THE STATUTE AS APPLIED TO APPELLANT INFRINGED
CONSTITUTIONALLY PROTECTED SPPECH. 

        III 

A. THE CENTRAL ASSUMPTION MADE BY THE SUPREME COURT OF VIRGINIA WAS
THAT THE FIRST AMENDMENT GUARANTEES OF SPEECH AND PRESS ARE
INAPPLICABLE TO PAID COMMERCIAL ADVERTISEMENTS.  OUR CASES, HOWEVER,
CLEARLY ESTABLISH THAT SPEECH IS NOT STRIPPED OF FIRST AMENDMENT
PROTECTION MERELY BECAUSE IT APPEARS IN THAT FORM.  PITTSBURGH PRESS
CO. V. HUMAN REL. COMM'N, 413 U.S. 376, 384 (1973); NEW YORK TIMES CO.
V. SULLIVAN, 376 U.S. 254, 266 (1964). 

THE FACT THAT THE PARTICULAR ADVERTISEMENT IN APPELLANT'S NEWSPAPER
HAD COMMERCIAL ASPECTS OR REFLECTED THE ADVERTISER'S COMMERCIAL
INTERESTS DID NOT NEGATE ALL FIRST AMENDMENT GUARANTEES.  THE STATE WAS
NOT FREE OF CONSTITUTIONAL RESTRAINT MERELY BECAUSE THE ADVERTISEMENT
INVOLVED SALES OR "SOLICITATIONS," MURDOCK V. PENNNSYLVANIA, 319 U.S.
105, 110 - 111 (1943), OR BECAUSE APPELLANT WAS PAID FOR PRINTING IT,
NEW YORK TIMES CO V. SULLIVAN, 376 U.S., AT 266; SMITH V. CALIFORNIA,
361 U.S. 147, 150 (1959), OR BECAUSE APPELLANT'S MOTIVE OR THE MOTIVE
OF THE ADVERTISER MAY HAVE INVOLVED FINANCIAL GAIN, THOMAS V. COLLINS,
323 U.S. 516, 531 (1945).  THE EXISTENCE OF "COMMERCIAL ACTIVITY, IN
ITSELF, IS NO JUSIFICATION FOR NARROWING THE PROTECTION OF EXPRESSION
SECURED BY THE FIRST AMENDMENT."  GINZNBURG V. UNITED STATES, 383 U.S.
463, 474 (1966). 

ALTHOUGH OTHER CATEGORIES OF SPEECH--SUCH AS FIGHTING WORDS,
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572 (1942), OR OBSCENTIY,
ROTH V. UNITED STATES, 354 U.S. 476, 481 - 485 (1957), MILLER V.
CALIFORNIA, 413 U.S. 15, 23 (1973), OR LIBEL, GERTZ V. ROBERT WELCH,
INC., 418 U.S. 323 (1974), OR INCITEMENT, BRANDENBURG V. PHIO, 395 U.S.
444 (1969)-- HAVE BEEN HELD UNPROTECTED, NO CONTENTION HAS BEEN MADE
THAT THE PARTICULAR SPEECH EMBRACED IN THE ADVERTISEMENT IN QUESTION IS
WITHIN ANY OF THESE CATEGORIES. 

THE APPELLEE, AS DID THE SUPREME COURT OF VIRGINIA, RELIES ON
VALENTINE V. CHRESTENSEN, 316 U.S. 52 (1942), WHERE A UNANIMOUS COURT,
IN A BRIEF OPINION, SUSTANINED AN ORDINANCE WHICH HAD BEEN INTERPRETED
TO BAN THE DISTRIBUTION OF A HANDBILL ADVERTISING THE EXHIBITION OF A
SUBMARINE.  THE HANDBILL SOLICITED CUSTOMERS TO TOUR THE SHIP FOR A
FEE.  THE PROMOTER-ADVERTISER HAD FIRST ATTEMPTED TO DISTRIBUTE A
SINGLE-FACED HANDBILL CONSISTING ONLY OF THE ADBERTISEMENT, AND WAS
DENIED PERMISSION TO DO SO.  HE THEN HAD PRINTED, ON THE REVERSE SIDE
OF THE HANDBILL, A PROTEST AGAINST OFFICIAL CONDUCT REFUSING HIM THE
USE OF WHARFAGE FACILITIES.  THE COURT FOUND THAT THE MESSAGE OF
ASSERTED "PUBLIC INTEREST" WAS APPENDED SOLELY FOR THE PURPOSE OF
EVADING THE ORDINANCE AND THEREFORE DID NOT CONSTITUTE AN "EXERCISE OF
THE FREEDOM OF COMMUNICATING INFORMATION AND DISSEMINATING OPINION." 
ID., AT 54.  IT SAID: 

     " WE ARE EQUALLY CLEAR THAT THE CONSTITUTION IMPOSES NO SUCH

  RESTRAINT ON GOVERNMENT AS RESPECTS PURELY COMMERCIAL

  ADVERTISING."  IBID. 

BUT THE HOLDING IS DISTINCTLY A LIMITED ONE:  THE ORDINANCE WAS UPHELD
AS A REASONABLE REGULATION OF THE MANNER IN WHICH COMMERCIAL
ADVERTISING COULD BE DISTRIBUTED.  THE FACT THAT IT HAD THE EFFECT OF
BANNING A PARTICULAR HANDBILL DOES NOT MEAN THAT CHRESTENSEN IS
AUTHORITY FOR THE PROPOSITION THAT ALL STATUTES REGULATING COMMERCIAL
ADVERTISING ARE IMMUNE FROM CONSTITUTIONAL CHALLENGE.  THE CASE
OBVIOUSLY DOES NOT SUPPORT ANY SWEEPING PROPOSITION THAT ADVERTISING IS
UNPROTECTED PER SE.  /6/ 

THIS COURT'S CASES DECIDED SINCE CHRESTENSEN CLEARLY DEMONSTRATE AS
UNTENABLE ANY READING OF THAT CASE THAT WOULD GIVE IT SO BROAD AN
EFFECT.  IN NEW YORK TIMES CO. V. SULLIVAN, SUPRA, A CITY OFFICIAL
INSTITUTED A CIVIL LIBEL ACTION AGAINST FOUR CLERGYMEN AND THE NEW YORK
TIMES.  THE SUIT WAS BASED ON AN ADVERTISEMENT CARRIED IN THE NEWSPAPER
CRITICIZING POLICE ACTION AGAINST MEMBERS OF THE CIVIL RIGHTS MOVEMENT
AND SOLICITING CONTRIBUTIONS FOR THE MOVEMENT.  THE COURT HELD THAT HIS
ADVERTISEMENT, ALTHOUGH CONTAINING FACTUALLY ERRONEOUS DEFAMATORY
CONTENT, WAS ENTITLED TO THE SAME DEGREE OF CONSTITUTIONAL PROTECTION
AS ORDINARY SPEECH.  IT SAID: 

" THAT THE TIMES WAS PAID FOR PUBLISHING THE ADVERTISEMENT IS AS
IMMATERIAL IN THIS CONNECTION AS IS THE FACT THAT NEWSPAPERS AND BOOKS
ARE SOLD."  376 U.S., AT 266.  CHRESTENSEN WAS DISTINGUSIHED ON THE
GROUND THAT THE HANDBILL ADVERTISEMENT THERE DID NO MORE THAN PROPOSE A
PURELY COMMERCIAL TRANSACTION, WHEREAS THE ONE IN NEW YORK TIMES 

"COMMUNICATED INFORMATION, EXPRESSED OPINION, RECITED GRIEVANCES,
PROTESTED CLAIMED ABUSES, AND SOUGHT FINANCIAL SUPPORT ON BEHALF OF A
MOVEMENT WHOSE EXISTENCE AND OBJECTIVES ARE MATTERS OF THE HIGHEST
PUBLIC INTEREST AND CONCERN."  IBID. 

THE PRINCIPLE THAT COMMERCIAL ADVERTISING ENJOYS A DEGREE OF FIRST
AMENDMENT PROTECTION WAS REAFFIRMED IN PITTSBURGH PRESS CO. V. HUMAN
REL. COMM'N, 413 U.S. 376 (1973).  THERE, THE COURT, ALTHOUGH DIVIDED,
SUSTAINED AN ORDINANCE THAT HAD BEEN CONSTRUED TO FORBID NEWSPAPERS TO
CARRY HELP-WANTED ADVERTISEMENTS IN SEX-DESIGNATED COLUMNS EXCEPT WHERE
BASED UPON A BONA FIDE OCCUPATIONAL EXEMPTION.  THE COURT DID DESCRIBE
THE ADVERTISEMENTS AT ISSUE AS "CLASSIC EXAMPLES OF COMMERCIAL SPEECH,"
FOR EACH WAS "NO MORE THAN A PROPOSAL OF POSSIBLE EMPLOYMENT."  ID.,
AT 385.  BUT THE COURT INDICATED THAT THE ADVERTISEMENTS WOULD HAVE
RECEIVED SOME DEGREE OF FIRST AMENDMENT PROTECTION IF THE COMMERCIAL
PROPOSAL HAD BEEN LEGAL.  THE ILLEGALITY OF THE ADVERTISED ACTIVITY WAS
PARTICULARLY STRESSED: 

" ANY FIRST AMENDMENT INTEREST WHICH MIGHT BE SERVED BY ADVERTISING
AN ORDINARY COMMERCIAL PROPOSAL AND WHICH MIGHT ARGUABLY OUTWEIGHT THE
GOVERNMENTAL INTEREST SUPPORTING THE REGULATION IS ALTOGETHER ABSENT
WHEN THE COMMERCIAL ACTIVITY ITSELF IS ILLEGAL AND THE RESTRICTION ON
ADVERTISING IS INCIDENTAL TO A VALID LIMITATION ON ECONOMIC ACTIVITY." 
ID., AT 389. 

B. THE LEGITIMACY OF APPELLANT'S FIRST AMENDMENT CLAIM IN THE
PRESENT CASE IS DEMONSTRATED BY THE IMPORTANT DIFFERENCES BETWEEN THE
ADVERTISEMENT PRESENTLY AT ISSUE AND THOSE INVOLVED IN CHRESTENSEN AND
IN PITTSBURGH PRESS.  THE ADVERTISEMENT PUBLISHED IN APPELLANT'S
NEWSPAPER DID MORE THAN SIMPLY PROPOSE A COMMERCIAL TRANSACTION.  IT
CONTAINED FACTUAL MATERIAL OF CLEAR "PUBLIC INTEREST."  PORTIONS OF ITS
MESSAGE, MOST PROMINENTLY THE LINES, " ABORTIONS ARE NOW LEGAL IN NEW
YORK.  THERE ARE NO RESIDENCY REQUIREMENTS," INVOLVE THE EXERCISE OF
THE FREEDOM OF COMMUNICATING INFORMATION AND DISSEMINATING OPINION. 

VIEWED IN ITS ENTIRETY, THE ADVERTISEMENT CONVEYED INFORMATION OF
POTENTIAL INTEREST AND VALUE TO A DIVERSE AUDIENCE--NOT ONLY TO READERS
POSSIBLY IN NEED OF THE SERVICES OFFERED, BUT ALSO TO THOSE WITH A
GENERAL CURIOSITY ABOUT, OR GENUINE INTEREST IN, THE SUBJECT MATTER OR
THE LAW OF ANOTHER STATE AND ITS DEVELOPMENT, AND TO READERS SEEKING
REFORM IN VIRGINIA.  THE MERE EXISTENCE OF THE WOMEN'S PAVILION IN NEW
YORK CITY, WITH THE POSSIBILITY OF ITS BEING TYPICAL OF THER
ORGANIZATIONS THERE, AND THE AVAILABILITY OF THE SERVICES OFFERED, WERE
NOT UNNEWSWORTHY.  ALSO, THE ACTIVITY ADVERTISED PERTAINED TO
CONSTITUTIONAL INTERESTS.  SEE ROE V. WADE, 410 U.S. 113 (1973), AND
DOE V. BOLTON, 410 U.S. 179 (1973).  THUS, IN THIS CASE, APPELLANT'S
FIRST AMENDMENT INTERESTS COINCIDED WITH THE CONSTITUTIONAL INTERESTS
OF THE GENERAL PUBLIC.  /7/ 

MOREOVER, THE PLACEMENT SERVICES ADVERTISED IN APPLLANT'S NEWSPAPER
WERE LEGALLY PROVIDED IN NEW YORK AT THAT TIME.  /8/ THE VIRGINIA
LEGISLATURE COULD NOT HAVE REGULATED THE ADVERTISER'S ACTIVITY IN NEW
YORK, AND OBVIOUSLY COULD NOT HAVE PROSCRIBED THE ACTIVITY IN THAT
STATE.  /9/  HUNTINGTON V. ATTRILL, 146 U.S. 657, 669 (1892).  NEITHER
COULD VIRGINIA PREVENT ITS RESIDENTS FROM TRAVELING TO NEW YORK TO
OBTAIN THOSE SERVICES OR, AS THE STATE CONCEDED, TR. OF ORAL ARG. 29,
PROSECUTE THEM FOR GOING THERE.  SEE UNITED STATES V. GUEST, 383 U.S.
745, 757 - 759 (1966); SHAPIRO V. THOMPSON, 394 U.S. 618, 629 - 631
(1969); DOE V. BOLTON, 410 U.S., AT 200.  VIRGINIA POSSESSED NO
AUTHORITY TO REGULATE THE SERVICES PROVIDED IN NEW YORK--THE SKILLS AND
CREDENTIALS OF THE NEW YORK PHYSICIANS AND OF THE NEW YORK
PROFESSIONALS WHO ASSISTED THEM, THE STANDARDS OF THE NEW YORK
HOSPITALS AND CLINICS TO WHICH PATIENTS WERE REFERRED, OR THE PRACTICES
AND CHARGES OF THE NEW YORK REFERRAL SERVICES. 

A STATE DOES NOT ACQUIRE POWER OR SUPERVISION OVER THE INTERNAL
AFFAIRS OF ANOTHER STATE MERELY BECAUSE THE WELFARE AND HEALTH OF ITS
OWN CITIZENS MAY BE AFFECTED WHEN THEY TRAVEL TO THAT STATE.  IT MAY
SEEK TO DISSEMINATE INFORMATION SO AS TO ENABLE ITS CITIZENS TO MAKE
BETTER INFORMED DECISIONS WHEN THEY LEAVE.  BUT IT MAY NOT, UNDER THE
GUISE OF EXERCISING INTERNAL POLICE POWERS, BAR A CITIZEN OF ANOTHER
STATE FROM DISSEMINATING INFORMATION ABOUT AN ACTIVITY THAT IS LEGAL IN
THAT STATE. 

C. WE CONCLUDE, THEREFORE, THAT THE VIRGINIA COURTS ERRED IN THEIR
ASSUMPTIONS THAT ADVERTISING, AS SUCH, WAS ENTITLED TO NO FIRST
AMENDMENT PROTECTION AND THAT APPELLANT BIGELOW HAD NO LEGITIMATE FIRST
AMENDMENT INTEREST.  WE NEED NOT DECIDE IN THIS CASE THE PRECISE EXTENT
TO WHICH THE FIRST AMENDMENT PERMITS REGULATION OF ADVERTISING THAT IS
RELATED TO ACTIVITIES THE STATE MAY LEGITIMATELY REGULATE OR EVEN
PROHIBIT.  /10/ 

ADVERTISING, LIKE ALL PUBLIC EXPRESSION, MAY BE SUBJECT TO
REASONABLE REGULATION THAT SERVES A LEGITIMATE PUBLIC INTEREST.  SEE
PITTSBURGH PRESS CO. V. HUMAN REL. COMM'N, SUPRA; LEHMAN V. CITY OF
SHAKER HEIGHTS, 418 U.S. 298 (1974).  /11/ TO THE EXTENT THAT
COMMERCIAL ACTIVITY IS SUBJECT TO REGULATION, THAT RELATIONSHIP OF
SPEECH TO THAT ACTIVITY MAY BE ONE FACTOR, AMONG OTHERS, TO BE
CONSIDERED IN WEIGHING THE FIRST AMENDMENT INTEREST AGAINST THE
GOVERNMENTAL INTEREST ALLEGED.  ADVERTISING IS NOT THEREBY STRIPPED OF
ALL FIRST AMENDMENT PROTECTION.  THE RELATIONSHIP OF SPEECH TO THE
MARKETPLACE OF PRODUCTS OR OF SERVICES DOES NOT MAKE IT VALUELESS IN
THE MARKETPLACE OF IDEAS. 

THE COURT HAS STATED THAT "A STATE CANNOT FORECLOSE THE EXERCISE OF
CONSTITUTIONAL RIGHTS BY MERE LABELS."  NAACP V. BUTTON, 371 U.S., AT
429.  REGARDLESS OF THE PARTICULAR LABEL ASSERTED BY THE STATE--WHETHER
IT CALLS SPEECH "COMMERCIAL" OR "COMMERCIAL ADVERTISING" OR
"SOLICITATION" --A COURT MAY NOT ESCAPE THE TASK OF ASSESSING THE FIRST
AMENDMENT INTEREST AT STAKE AND WEIGHING IT AGAINST THE PUBLIC INTEREST
ALLEGEDLY SERVED BY THE REGULATION.  THE DIVERSE MOTIVES, MEANS, AND
MESSAGES OF ADVERTISING MAY MAKE SPEECH "COMMERCIAL" IN WIDELY VERYING
DEGREES.  WE NEED NOT DECIDE HERE THE EXTENT TO WHICH CONSTITUTIONAL
PROTECTION IS AFFORDED COMMERCIAL ADVERTISING UNDER ALL CIRCUMSTANCES
AND IN THE FACE OF ALL KINDS OF REGULATION. 

 IV 

THE TASK OF BALANCING THE INTERESTS AT STAKE HERE WAS ONE THAT
SHOULD HAVE BEEN UNDERTAKEN BY THE VIRGINIA COURTS BEFORE THEY REACHED
THEIR DECISION.  WE NEED NOT REMAND FOR THAT PURPOSE, HOWEVER, BECAUSE
THE OUTCOME IS READILY APPARENT FROM WHAT HAS BEEN SAID ABOVE. 

IN SUPPORT OF THE STATUTE, THE APPELLEE CONTENDS THAT THE COMMERCIAL
OPERATIONS OF ABORTION REFERRAL AGENCIES ARE ASSOCIATED WITH PRACTICES,
SUCH AS FEE SPLITTING, THAT TEND TO DIMINISH, OR AT LEAST ADVERSELY
AFFECT, THE QUALITY OF MEDICAL CARE, AND THAT ADVERTISING OF THESE
OPERATIONS WILL LEAD WOMEN TO SEEK SERVICES FROM THOSE WHO ARE
INTERESTED ONLY OR MAINLY IN FINANCIAL GAIN APART FROM PROFESSIONAL
INTEGRITY AND RESPONSIBILITY. 

THE STATE, OF COURSE, HAS A LEGITIMATE INTEREST IN MAINTAINING THE
QUALITY OF MEDICAL CARE PROVIDED WITHIN ITS BORDERS.  ARSKY V. BOARD OF
REGENTS, 347 U.S. 442, 451 (1954).  NO CLAIM HAS BEEN MADE, HOWEVER,
HOWEVER, THAT THIS PARTICULAR ADVERTISEMENT IN ANY WAY AFFECTED THE
QUALITY OF MEDICAL SERVICES WITHIN VIRGINIA.  AS APPLIED TO BIGELOW'S
CASE, THE STATUTE WAS DIRECTED AT THE PUBLISHING OF INFORMATIVE
MATERIAL RELATING TO SERVICES OFFERED IN ANOTHER STATE AND WAS NOT
DIRECTED AT ADVERTISING BY A REFERRAL AGENCY OR A PRACTITIONER WHOSE
ACTIVITY VIRGINIA HAD AUTHORITY OR POWER TO REGULATE. 

TO BE SURE, THE AGENCY-ADVERTISER'S PRACTICES, ALTHOUGH NOT THEM
ILLEGAL, MAY LATER HAVE PROVED TO BE AT LEAST "INIMICAL TO THE PUBLIC
INTEREST" IN NEW YORK.  S.P.S. CONSULTANTS, INC. V. LEFKOWITZ, 333
F.SUPP.  1373, 1378 (SDNY 1971).  /12/ BUT THIS DEVELOPMENT WOULD NOT
JUSTIFY A VIRGINIA STATUTE THAT FORBIDS VIRGINIANS FROM USING IN
AGENCY.  HERE, VIRGINIA IS REALLY ASSERTING AN INTEREST IN REGULATING
WHAT VIRGINIANS MAY HEAR OR READ ABOUT THE NEW YORK SERVICES.  IT IS,
IN EFFECT, ADVANCING AN INTEREST IN SHIELDING ITS CITIZENS FROM
INFORMATION ABOUT ACTIVITIES OUTSIDE VIRGINIA'S BORDERS, ACTIVITIES
THAT VIRGINIA'S POLICE POWERS DO NOT REACH.  THIS ASSERTED INTEREST,
EVEN IF UNDERSTANDABLE, WAS ENTITLED TO LITTLE, IF ANY, WEIGHT UNDER
THE CIRCUMSTANCES. 

NO CLAIM HAS BEEN MADE, NOR COULD ANY BE SUPPORTED ON THIS RECORD,
THAT THE ADVERTISEMENT WAS DECEPTIVE OR FRAUDULENT, /13/ OR THAT IT
RELATED TO A COMMODITY OR SERVICE THAT WAS THEM ILLEGAL IN EITHER
VIRGINIA OR IN NEW YORK, OR THAT IT OTHERWISE FURTHERED A CRIMINAL
SCHEME IN VIRGINIA.  /14/ THERE WAS NO POSSIBILITY THAT APPELLANT'S
ACTIVITY WOULD INVADE THE PRIVACY OF OTHER CITIZENS, BREARD V.
ALEXANDRIA, SUPRA, OR INFRINGE ON OTHER RIGHTS.  OBSERVERS WOULD NOT
HAVE THE ADVERTISER'S MESSAGE THRUST UPON THEM AS A CAPTIVE AUDIENCE. 
LEHMAN V. CITY OF SHAKER HEIGHTS, SUSPRA; PACKER CORP. V. UTAH, 285
U.S. 105, 110 (1932). 

THE STRENGTH OF APPELLANT'S INTEREST WAS AUGMENTED BY THE FACT THAT
THE STATUTE WAS APPLIED AGAINST HIM AS PUBLISHER AND EDITOR OF A
NEWSPAPER, NOT AGAINST THE ADVERTISER OR A REFERRAL AGENCY OR A
PRACTITIONER.  THE PROSECUTION THUS INCURRED MORE SERIOUS FIRST
AMENDMENT OVERTONES. 

IF APPLICATION OF THIS STATUTE WERE UPHELD UNDER THESE CIRCUMSTANCES,
VIRGINIA MIGHT EXERT THE POWER SOUGHT HERE OVER A WIDE VARIETY OF
NATIONAL PUBLICATIONS OR INTERSTATE NEWSPAPERS CARRYING ADVERTISEMENTS
SIMILAR TO THE ONE THAT APPEARED IN BIGELOW'S NEWSPAPER OR CONTAINING
ARTICLES ON THE GENERAL SUBJECT MATTER TO WHICH THE ADVERTISEMENT
REFERRED.  /15/  OTHER STATES MIGHT DO THE SAME.  THE BURDENS THEREBY
IMPOSED ON PUBLICATIONS WOULD IMPAIR, PERHAPS SEVERELY, THEIR PROPER
FUNCTIONING.  SEE MIAMI HERALD PUBLISHING CO. V. TORNILLO, 418 U.S.
241, 257 - 258 (1974).  WE KNOW FROM EXPERIENCE THAT "LIBERTY OF THE
PRESS IS IN PERIL AS SOON AS THE GOVERNMENT TRIES TO COMPEL WHAT IS TO
GO INTO A NEWSPAPER."  2 Z. CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS
633 (1947).  THE POLICY OF THE FIRST AMENDMENT FAVORS DISSEMINATION OF
INFORMATION AND OPINION, AND "(THE GUARANTEES OF FREEDOM OF SPEECH AND
PRESS WERE NOT DESIGNED TO PREVENT 'THE CENSORSHIP OF THE PRESS MERELY,
BUT ANY ACTION OF THE GOVERNMENT BY MEANS OF WHICH IT MIGHT PREVENT
SUCH FREE AND GENERAL DISCUSSION OF PUBLIC MATTERS AS SEEMS ABSOLUTELY
ESSENTIAL . . . .'  2 COOLEY, CONSTITUTIONAL LIMITATIONS 886 (8TH
ED.)."  CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 150 (1967)
(OPINION OF HARLAN, J.). 

WE CONCLUDE THAT VIRGINIA COULD NOT APPLY VA. CODE ANN. SEC. 18.1 -
63 (1960), AS IT READ IN 1971, TO APPELLANT'S PUBLICATION OF THE
ADVERTISEMENT IN QUESTION WITHOUT UNCONSTITUTIONALLY INFRINGING UPON
HIS FIRST AMENDMENT RIGHTS.  THE JUDGMENT OF THE SUPREME COURT OF
VIRGINIA IS THEREFORE REVERSED. 

                                  IT IS SO ORDERED. 

/1/ HIS BRIEF DESCRIBES THE PUBLICATION AS AN "UNDERGROUND
NEWSPAPER."  BRIEF FOR APPELLANT 3.  THE APPELLEE STATES THAT THERE IS
NO EVIDENCE IN THE RECORD TO SUPPORT THAT DESCRIPTION.  BRIEF FOR
APPELLEE 3N.  1. 

/2/ WE WERE ADVISED BY THE STATE AT ORAL ARGUMENT THAT THE STATUTE
DATED BACK TO 1878, AND THAT BIGELOW'S WAS THE FIRST PROSECUTION UNDER
THE STATUTE "IN MODERN TIMES," AND PERHAPS THE ONLY PROSECUTION UNDER
IT "AT ANY TIME."  TR. OF ORAL ARG. 40.  THE STATUTE APPEARS TO HAVE
ITS ORIGIN IN VA. ACTS OF ASSEMBLY 1877 - 1878, P. 281, C. 2 SEC. 8. 
/3/ THE STATUTE, AS AMENDED BY VA. ACTS OF ASSEMBLY 1972, C. 725, NOW
READS: 

"18.1 - 63.  IF ANY PERSON, BY PUBLICATION, LECTURE, ADVERTISEMENT,
OR BY THE SALE OR CIRCULATION OF ANY PUBLICATION, OR THROUGH THE USE OF
A REFERRAL AGENCY FOR PROFIT, OR IN ANY OTHER MANNER, ENCOURAGE OR
PROMOTE THE PROCESSING OF AN ABORTION OR MISCARRIAGE TO BE PERFORMED IN
THIS STATE WHICH IS PROHIBITED UNDER THIS ARTICLE, HE SHALL BE GUILTY
OF A MISDEMEANOR." 

IT IS TO BE OBSERVED THAT THE AMENDMENT RESTRICTS THE STATUTE'S
APPLICATION, WITH RESPECT TO ADVERTISING, TO AN ABORTION ILLEGAL IN
VIRGINIA AND TO BE PERFORMED THERE.  SINCE THE STATE'S STATUTES PURPORT
TO DEFINE THOSE ABORTIONS THAT ARE LEGAL WHEN PERFORMED IN THE STATE,
SEE VA. CODE ANN. SEC. 18.1 - 62.1 AND 18.1 - 62.3 (SUPP. 1975), THE
STATE AT ORAL ARGUMENT DESCRIBED THE PRE-1972 FORM OF SEC. 18.1 - 63 AS
"EFFECTIVELY REPEALED BY AMENDMENT," AND, CITING ROE V. WADE, 410 U.S.
113 (1973), AND DOE V. BOLTON, 410 U.S. 179 (1973), THE STATUTE, AS
AMENDED, AS LIMITED TO AN ABORTION PERFORMED BY A NONPHYSICIAN.  TR. OF
ORAL ARG. 38 - 39.  IN ANY EVENT, THERE IS NO DISPUTE HERE THAT THE
AMENDED STATUTE WOULD NOT REACH APPELLANT'S ADVERTISEMENT. 

/4/ SEE NOTE, THE FIRST AMENDMENT AND COMMERCIAL ADVERTISING:
BIGELOW V. COMMONWEALTH, 60 VA. L. REV. 154 (1974). 

/5/ VIRGINIA ASSERTS, RIGHTFULLY WE FEEL, THAT THIS IS "A FIRST
AMENDMENT CASE" AND "NOT AN ABORTION CASE."  BRIEF FOR APPELLEE 15 N.
6; TR. OF ORAL ARG. 26. 

/6/ MR. JUSTICE DOUGLAS, WHO WAS A MEMBER OF THE COURT WHEN
CHRESTENSEN WAS DECIDED AND WHO JOINED THAT OPINION, HAS OBSERVED: 

" THE RULING WAS CASUAL, ALMOST OFFHAND.  AND IT HAS NOT SURVIVED
REFLECTION."  CAMMARANO V. UNITED STATES, 358 U.S. 498, 514 (1959)
"CONCURRING OPINION).  MR. JUSTICE BRENNAN, JOINED BY JUSTICES STEWART,
MARSHALL, AND POWELL, HAS OBSERVED:  " THERE IS SOME DOUBT CONCERNING
WHETHER THE 'COMMERCIAL SPEECH' DISTINCTION ANNOUNCED IN VALENTINE V.
CHRESTENSEN . . . RETAINS CONTINUING VALIDITY."  LEHMAN V. CITY OF
SHAKER HEIGHTS, 418 U.S. 298, 314 N. 6 (1974) (DISSENTING OPINION). 
SEE ALSO PITTSBORGH PRESS CO. V. HUMAN REL. COMM'N, 413 U.S. 376, 393
(1973) (BURGER, C.J., DISSENTING) ID., AT 398 (DOUGLAS, J.,
DISSENTING); ID., AT 401 (STEWART, J., DISSENTING). 

/7/ IT WAS ARGUED, TOO, THAT UNDER THE CIRCUMSTANCES THE APPEARANCE
OF THE ADVERTISEMENT IN THE APPELLANT'S NEWSPAPER WAS "AN IMPLICIT
EDITORIAL ENDORSEMENT" OF ITS MESSAGE.  BRIEF FOR APPELLANT 29. 

/8/ SUBSEQUENT TO BIGELOW'S PUBLICATION OF THE ADVERTISEMENT IN
FEBRUARY 1971, NEW YORK ADOPTED LAWS 1971, C. 725, EFFECTIVE JULY 1,
1971, AMENDED BY LAWS 1972, C. 17, SEC. 1, NOW CODIFIED AS ART. 45 OF
THE STATE'S PUBLIC HEALTH LAW (SUPP. 1974 - 1975).  SECTION 4500
CONTAINS A LEGISLATIVE FINDING:  " MEDICAL REFERRAL SERVICES, ORGANIZED
AS PROFIT MAKING ENTERPRISES WITHIN THIS STATE, HAVE BEEN . . . IN
VIOLATION OF THE STANDARDS OF ETHICS AND PUBLIC POLICY APPLICABLE TO
THE PRACTICE OF MEDICINE AND WHICH WOULD BE VIOLATIONS OF STANDARDS OF
PROFESSIONAL CONDUCT IF THE ACTS WERE PERFORMED BY PHYSICIANS.  . . .
IT IS HEREBY DECLARED TO BE THE PUBLIC POLICY OF THIS STATE . . . THAT
SUCH PROFIT MAKING MEDICAL REFERRAL SERVICE ORGANIZATIONS BE DECLARED
TO BE INVALID AND UNLAWFUL IN THIS STATE." 

ASSOCIATION OR CORPORATION, OR AGENT OR EMPLOYEE THEREOF, SHALL ENGAGE
IN FOR PROFIT ANY BUSINESS OR SERVICE WHICH IN WHOLE OR IN PART
INCLUDES THE REFERRAL OR RECOMMENDATION OF PERSONS TO A PHYSICIAN,
HOSPITAL, HEALTH RELATED FACILITY, OR DISPENSARY FOR ANY FORM OF
MEDICAL CARE OR TREATMENT OF ANY AILMENT OR PHYSICAL CONDITION.  THE
IMPOSITION OF A FEE OR CHARGE FOR ANY SUCH REFERRAL OR RECOMMENDATION
SHALL CREATE A PRESUMPTION THAT THE BUSINESS OR SERVICE IS ENGAGED IN
FOR PROFIT." 

A VIOLATION OF THE STATUTE IS A MISDEMEANOR PUNISHABLE BY
IMPRISONMENT FOR NOT LONGER THAN ONE YEAR OR A FINE OF NOT MORE THAN
$5,000 OR BOTH.  SEC. 4502(1).  ARTICLE 45 EXPRESSLY IS MADE
INAPPLICABLE TO A NONPROFIT CORPORATION EXEMPT FROM REDERAL INCOME
TAXATION UNDER SEC. 501 (C) OF THE INTERNAL REVENUE CODE OF 1954, 26
U.S.C. SEC. 501 (C).  SEC. 4503. 

THE 1971 STATUTE HAS BEEN UPHELD AGAINST CONSTITUTIONAL CHALLENGE. 
S.P.S. CONSULTANTS, INC. V. LEFKOWITZ, 333 F.SUPP.  1373 (SDNY 1971). 

/9/ IN 1972, AFTER BIGELOW'S PROSECUTION WAS BEGUN, VIRGINIA ADOPTED
ACTS OF ASSEMBLY 1972, C. 642, NOW CODIFIED AS VA. CODE ANN. SEC. 18.1
417.2 (SUPP. 1975).  THIS STATUTE IS SIMILAR TO THE NEW YORK STATUTE
DESCRIBED IN N. 8, SUPRA, AND IS DIRECTED AT FOR-PROFIT MEDICAL
REFERRALS WITHIN VIRGINIA.  THE STATUTE PROHIBITS ENGAGING FOR PROFIT
"IN ANY BUSINESS WHICH IN WHOLE OR IN PART INCLUDES THE REFERRAL OR
RECOMMENDATION OF PERSONS TO A PHYSICIAN, HOSPITAL, HEALTH RELATED
FACILITY, OR DISPENSARY FOR ANY FORM OF MEDICAL CARE OR TREATMENT OF
ANY AILMENT OR PHYSICAL CONDITION."  ACCEPTANCE OF A FEE FOR ANY SUCH
REFERRAL OR RECOMMENDATION "SHALL CREATE A PRESUMPTION THAT THE
BUSINESS IS ENGAGED IN SUCH SERVICE FOR PROFIT."  VIOLATION OF THE
STATUTE IS AN MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT LONGER
THAN ONE YEAR OR A FINE OF NOT MORE THAN $5,000, OR BOTH. 

BY A 1973 AMENDMENT, ACTS OF ASSEMBLY 1973, C. 529, TO ITS STATUTE
DEALING WITH UNPROFESSIONAL CONDUCT BY A MEMBER OF THE MEDICAL OR A
RELATED PROFESSION, VIRGINIA PROHIBITS ADVERTISING BY A PHYSICIAN. 
SPECIFICALLY, VA. CODE ANN. SEC. 54 - 317 (1974) NOW PROVIDES: 

" ANY PRACTITIONER OR MEDICINE . . . SHALL BE CONSIDERED GUILTY OF
UNPROFESSIONAL CONDUCT IF HE:

        * * * * * 

"(13) ADVERTISES TO THE GENERAL PUBLIC DIRECTLY OR INDIRECTLY IN ANY
MANNER HIS PROFESSIONAL SERVICES, THEIR COSTS, PRICES, FEES, CREDIT
TERMS OR QUALITY." 

SEE ALSO VA. CODE ANN. SEC. 54 - 278.1 AND 54 - 317 (4), (5), AND
(6) (1974). 

WE, OF COURSE, HAVE NO OCCASION TO COMMENT HERE ON WHATEVER
CONSTITUTIONAL ISSUE, IF ANY, MAY BE REISED WITH RESPECT TO THESE
STATUTES. 

/10/ WE HAVE NO OCCASION, THEREFORE, TO COMMENT ON DECISIONS OF
LOWER COURTS CONCERNING REGULATION OF ADVERTISING IN READILY
DISTINHGUISHABLE FACT SITUATIONS.  WHOLLY APART FROM THE RESPECTIVE
RATIONALES THAT MAY HAVE BEEN DEVELOPED BY THE COURTS IN THOSE CASES,
THEIR RESULTS ARE NOT INCONSISTENT WITH OUR HOLDING HERE.  IN THOSE
CASES THERE USUALLY EXISTED A CLEAR RELATIONSHIP BETWEEN THE
ADVERTISING IN QUESTION AND AN ACTIVITY THAT THE GOVERNMENT WAS
LEGITIMATELY REGULATING.  SEE, E.G., UNITED STATES V. BOB LAWRENCE
REALTY, INC., 474 F.2D 115, 121 (CA5), CERT. DENIED, 414 U.S. 826
(1973).  ROCKVILLE REMINDER, INC. V. UNITED STATES POSTAL SERVICE, 480
F.2D 4 (CA2 1973); UNITED STATES V. HUNTER, 459 F.2D 205 (CA4), CERT.
DENIED, 409 U.S. 934 (1972). 

NOR NEED WE COMMENT HERE ON THE FIRST AMENDMENT RAMIFICATIONS OF
LEGISLATIVE PROHIBITIONS OF CERTAIN KINDS OF ADVERTISING IN THE
ELECTRONIC MEDIA, WHERE THE "UNIQUE CHARACTERISTICS" OF THIS FORM OF
COMMUNICATION "MAKE IT ESPECIALLY SUBJECT TO REGULATION IN THE PUBLIC
INTEREST."  CAPITAL BROADCASTING CO. V. MITCHELL, 333 F.SUPP.  582, 584
(DC 1971), AFF'D, 405 U.S. 1000 (1972).  SEE ALSO BANZHAF V. FCC, 132
U.S. APP. D.C. 14, 405 F.ID 1082 (1968), CERT. DENIED SUB NOM. TOBACCO
INSTITUTE, INC. V. FCC, 396 U.S. 842 (1969); COLUMBIA BROADCASTING
SYSTEM, INC. V. DEMOCRATIC NATIONAL COMMITTEE, 412 U.S. 94 (1973). 

OUR DECISION ALSO IS IN NO WAY INCONSISTENT WITH OUR HOLDINGS IN THE
FOURTEENTH AMENDMENT CASES THAT CONCERN THE REGULATION OF PROFESSIONAL
ACTIVITY.  SEE NORTH DAKOTA PHARMACY BD. V. SNYDER'S STORES, 414 U.S.
156 (1973); HEAD V. NEW MEXICO BOARD, 374 U.S. 424 (1963); WILLIAMSON
V. LEE OPTICAL CO., 348 U.S. 483 (1955); BARSKY V. BOARD OF REGENTS,
347 U.S. 442 (1954); SEMLER V. DENTAL EXAMINERS, 294 U.S. 608 (1935). 

/11/ SEE ALSO ADDERLEY V. FLORIDA, 385 U.S. 39, 46 - 48 (1966); COX
V. LOUISIANA, 379 U.S. 536, 554 (1965); POULOS V. NEW HAMPSHIRE, 345
U.S. 395, 405 (1953); KUNZ V. NEW YORK, 340 U.S. 290, 293 - 294 (1951);
COX V. NEW HAMPSHIRE, 312 U.S. 569, 575 - 576 (1941). 

/12/ SEE STATE V. ABORTION INFORMATION AGENCY, INC., 69 MISC. 2D
825, 323 NYS 2D 597 (1971); SEE ALSO MITCHELL FAMILY PLANNING INC. V.
CITY OF ROYAL AOK, 335 F.SUPP.  738 (ED MICH. 1972). 

/13/ SEE NOTE, FREEDOM OF EXPRESSION IN A COMMERCIAL CONTEXT, 78
HARV. L. REV. 1191, 1197 - 1198 (1965); DEVELOPMENTS IN THE LAW--
DECEPTIVE ADVERTISING, 80 HARV. L. REV. 1005, 1010 - 1015 (1967). 

/14/ WE ARE NOT REQUIRED TO DECIDE HERE WHAT THE FIRST AMENDMENT
CONSEQUENCES WOULD BE IF THE VIRGINIA ADVERTISEMENT PROMOTED AN
ACTIVITY IN NEW YORK WHICH WAS THEN ILLEGAL IN NEW YORK.  AN EXAMPLE
WOULD BE AN ADVERTISEMENT ANNOUNCING THE AVAILABILITY OF NARCOTICS IN
NEW YORK CITY WHEN THE POSSESSION AND SALE OF MARCOTICS WAS PROSCRIBED
IN THE STATE OF NEW YORK. 

/15/ THE STATE SO INDICATED AT ORAL ARGUMENT.  TR. OF ORAL ARG. 37 -
38.  IT, HOWEVER, WAS NEVER SO APPLIED.  IN THE LIGHT OF ITS "EFFECTIVE
REPEAL," AS THE STATE'S COUNSEL OBSERVED DURING THE ORAL ARGUMENT, "(WE
WILL NEVER KNOW" HOW FAR, UNDER APPELLEE'S THEORY, IT MIGHT HAVE
REACHED.  ID., AT 38. 

MR. JUSTICE REHNQUIST, WITH WHOM MR. JUSTICE WHITE JOINS,
DISSENTING. 

THE COURT'S OPINION DOES NOT CONFRONT HEAD-ON THE QUESTION WHICH
THIS CASE POSES, BUT MAKES CONTACT WITH IT ONLY IN A SERIES OF VERBAL
SIDESWIPES.  THE RESULT IS THE FASHIONING OF A DOCTRINE WHICH APPEARS
DESIGNED TO OBTAIN REVERSAL OF THIS JUDGMENT, BUT AT THE SAME TIME TO
SAVE HARMLESS FROM THE EFFECTS OF THAT DOCTRINE THE MANY PRIOR CASES OF
THIS COURT WHICH ARE INCONSISTENT WITH IT.

I AM IN AGREEMENT WITH THE COURT, ANTE, AT 817 - 818, THAT
VIRGINIA'S STATUTE CANNOT PROPERLY BE INVALIDATED ON GROUNDS OF
OVERBREADTH /1/ GIVEN THAT THE SOLE PROSECUTION WHICH HAS EVER BEEN
BROUGHT UNDER THIS NOW SUBSTANTIALLY ALTERED STATUTE IS THAT NOW IN
ISSUE.  " IT IS THE LAW AS APPLIED THAT WE REVIEW, NOT THE ABSTRACT,
ACADEMIC QUESTIONS WHICH IT MIGHT RAISE IN SOME MORE DOUBTFUL CASE." 
SAIA V. NEW YORK, 334 U.S. 558, 571 (1948) (JACKSON, J., DISSENTING). 

SINCE THE COURT CONCLUDES, APPARENTLY FROM TWO LINES OF THE
ADVERTISEMENT, ANTE, AT 814, THAT IT CONVEYED INFORMATION OF VALUE TO
THOSE INTERESTED IN THE "SUBJECT MATTER OR THE LAW OF ANOTHER STATE AND
ITS DEVELOPMENT" AND TO THOSE "SEEKING REFORM IN VIRGINIA," ANTE, AT
822, AND SINCE THE AD RELATES TO ABORTION, ELEVATED TO CONSTITUTIONAL
STATURE BY THE COURT, IT CONCLUDES THAT THIS ADVERTISEMENT IS ENTITLED
TO SOMETHING MORE THAN THE LIMITED CONSTITUTIONAL PROTECTION
TRADITIONALLY ACCORDED COMMERCIAL ADVERTISING.  SEE ANTE, AT 825 N.
10.  ALTHOUGH RECOGNIZING THAT "(ADVERTISING, LIKE ALL PUBLIC
EXPRESSION, MAY BE SUBJECT TO REASONABLE REGULATION THAT SERVES A
LEGITIMATE PUBLIC INTEREST," ANTE, AT 826, THE COURT FOR REASONS NOT
ENTIRELY CLEAR TO ME CONCLUDES THAT VIRGINIA'S INTEREST IS OF "LITTLE,
IF ANY, WEIGHT."  ANTE, AT 828. 

IF THE COURT'S DECISION DOES, INDEED, TURN UPON ITS CONCLUSION THAT
THE ADVERTISEMENT HERE IN QUESTION WAS PROTECTED BY THE FIRST AND
FOURTEENTH AMENDMENTS, THE SUBJECT OF THE ADVERTISEMENT OUGHT TO MAKE
NO DIFFERENCE.  IT WILL NOT DO TO SAY, AS THE COURT DOES, THAT THIS
ADVERTISEMENT CONVEYED INFORMATION ABOUT THE "SUBJECT MATTER OF THE LAW
OF ANOTHER STATE AND ITS DEVELOPMENT" TO THOSE "SEEKING REFORM IN
VIRGINIA," AND THAT IT RELATED TO ABORTION, AS IF THESE FACTORS SOMEHOW
PUT IT ON A DIFFERENT FOOTING FROM OTHER COMMERCIAL ADVERTISING.  THIS
WAS A PROPOSAL TO FURNISH SERVICES ON A COMMERCIAL BASIS, AND SINCE WE
HAVE ALWAYS REFUSED TO DISTINGUISH FOR FIRST AMENDMENT PURPOSES ON THE
BASIS OF CONTENT, IT IS NO DIFFERENT FROM AN ADVERTISEMENT FOR A BUCKET
SHOP OPERATION OR A PONZI SCHEME WHICH HAS ITS HEADQUARTERS IN NEW
YORK.  IF VIRGINIA MAY NOT REGULATE ADVERTISING OF COMMERCIAL ABORTION
AGENCIES BECAUSE OF THE INTEREST OF THOSE SEEKING TO REFORM VIRGINIA'S
ABORTION LAWS, IT IS DIFFICULT TO SEE WHY IT IS NOT LIKEWISE PRECLUDED
FROM REGULATING ADVERTISING FOR AN OUT-OF-STATE BUCKET SHOP ON THE
GROUND THAT SUCH INFORMATION MIGHT BE OF INTEREST TO THOSE INTERESTED
IN REPEALING VIRGINIA'S "BLUE SKY" LAWS. 

AS A THRESHOLD MATTER THE ADVERTISEMENT APPEARS TO ME, AS IT DID TO
THE COURTS BELOW, TO BE A CLASSIC COMMERCIAL PROPOSITION DIRECTED
TOWARD THE EXCHANGE OF SERVICES RATHER THAN THE EXCHANGE OF IDEAS.  IT
WAS APPARENTLY ALSO SO INTERPRETED BY THE NEWSPAPER WHICH PUBLISHED IT
WHICH STATED IN APPARENT APOLOGY IT IS FOLLOWING ISSUE THAT THE "'
WEEKLY COLLECTIVE HAS SINCE LEARNED THAT THIS ABORTION AGENCY . . . AS
WELL AS A NUMBER OF OTHER COMMERCIAL GROUPS ARE CHARGING WOMEN A FEE
FOR A SERCICE WHICH IS DONE FREE BY WOMEN'S LIBERATION, PLANNED
PARENTHOOD, AND OTHERS.'"  213 VA. 191, 194, 191 S.E. 2D 173, 175
(1972).  WHATEVER SLIGHT FACTUAL CONTENT THE ADVERTISEMENT MAY CONTAIN
AND WHATEVER EXPRESSION OF OPINION MAY BE LABORIOUSLY DRAWN FROM IT
DOES NOT ALTER ITS PREDOMINANTLY COMMERCIAL CONTENT.  " IF THAT EVASION
WERE SUCCESSFUL, EVERY MERCHANT WHO DESIRES TO BROADCAST . . . NEED
ONLY APPEND A CIVIC APPEAL, OR A MORAL PLATITUDE, TO ACHIEVE IMMUNITY
FROM THE LAW'S COMMAND."  VALENTINE V. CHRESTENSEN, 316 U.S. 52, 55
(1942).  SEE, E.G., GINZBURG V. UNITED STATES, 383 U.S. 463, 474 N. 17
(1966).  I AM UNABLE TO PERCEIVE ANY RELATIONSHIP BETWEEN THE INSTANT
ADVERTISEMENT AND THAT FOR EXAMPLE IN ISSUE IN NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254, 292 (1964).  NOR AM I ABLE TO DISTINGUISH THIS
COMMERCIAL PROPOSITION FROM THAT HELD TO BE PURELY COMMERCIAL IN
PITTSBURGH PRESS CO. V. HUMAN REL. COMM'N, 413 U.S. 376 (1973).  AS THE
COURT RECOGNIZES, ANTE, AT 819 - 821, A PURELY COMMERCIAL PROPOSAL IS
ENTITLED TO LITTLE CONSTITUTIONAL PROTECTION.     ASSUMING ARGUENDO
THAT THIS ADVERTISEMENT IS SOMETHING MORE THAN A NORMLA COMMERCIAL
PROPOSAL, I AM UNABLE TO SEE WHY VIRGINIA DOES NOT HAVE A LEGITIMATE
PUBLIC INTEREST IN ITS REGULATION.  THE COURT APPARENTLY CONCEDES,
ANTE, AT 825 N. 10, AND OUR CASES HAVE LONG HELD, THAT THE STATES HAVE
A STRONG INTEREST IN THE PREVENTION OF COMMERCIAL ADVERTISING IN THE
HEALTH FIELD--BOTH IN ORDER TO MAINTAIN HIGH ETHICAL STANDARDS IN THE
MEDICAL PROFESSION AND TO PROTECT THE PUBLIC FROM UNSCRUPULOUS
PRACTICES.  SEE, E.G., SEMLER V. DENTAL EXAMINERS, 294 U.S. 608, 612
(1935); WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 490 - 491 (1955);
NORTH DAKOTA PHARMACY BD. V. SNYDER'S STORES, 414 U.S. 156 (1973).  AND
THE INTEREST ASSERTED BY THE SUPREME COURT OF VIRGINIA IN THE VIRGINIA
STATUTE WAS THE PREVENTION OF COMMERCIAL EXPLOITATION OF THOSE WOMEN
WHO ELECT TO HAVE AN ABORTION: 

    " IT IS CLEARLY WITHIN THE POLICE POWER OF THE STATE TO ENACT

  REASONABLE MEASURES TO ENSURE THAT PREGNANT WOMEN IN VIRGINIA WHO

  DECIDE TO HAVE ABORTIONS COME TO THEIR DECISIONS WITHOUT THE

  COMMERCIAL ADVERTISING PRESSURE USUALLY INCIDENTIAL TO THE SALE

  OF A BOX OF SOAP POWDER.  AND THE STATE IS RIGHTFULLY INTERESTED

  IN SEEING THAT VIRGINIA WOMEN WHO DO DECIDE TO HAVE ABORTIONS

  OBTAIN PROPER MEDICAL CARE AND DO NOT FALL INTO THE HANDS OF

  THOSE INTERESTED ONLY IN FINANCIAL GAIN, AND NOT IN THE WELFARE

OF THE PATIENT."  213 VA., AT 196, 191 S.E. 2D, AT 176. 

THE CONCERN OF THE VIRGINIA SUPREME COURT WAS NOT A PURELY
HYPOTHETICAL ONE.  AS THE MAJORITY NOTES, ANTE, AT 822 - 823, N. 8,
ALTHOUGH NEW YORK AT THE TIME OF THIS ADVERTISEMENT ALLOWED
PROFITMAKING ABORTION REFERRAL AGENCIES, IT SOON THEREAFTER PASSED
LEGISLATION PROHIBITING COMMERCIAL ADVERTISEMENT OF THE TYPE HERE IN
ISSUE.  THE COURT IN S.P.S. CONSULTANTS, INC. V. LEFKOWITZ, 333
F.SUPP.  1373, 1378 (SDNY 1971), QUOTED THE AUTHOR OF THAT LEGISLATION
ON THE REASONS FOR ITS PASSAGE: 

"' BECAUSE NEW YORK STATE HAS THE MOST LIBERAL ABORTION STATUTE
WITHIN THE CONTINENTIAL UNITED STATES, THOUSANDS OF WOMEN FROM ALL OVER
THE COUNTRY ARE COMING INTO NEW YORK STATE . . . . (M) OST OF THESE
WOMEN CAME HERE THROUGH REFERRAL AGENCIES WHO ADVERTISE NATIONALLY. 
THESE AGENCIES, FOR A SIZEABLE FEE, MAKE ALL ABORTION ARRANGEMENTS FOR
A PATIENT.  WE ALSO LEARNED THAT CERTAIN HOSPITALS GIVE DISCOUNTS TO
THESE LUCRATIVE, PROFIT-MAKING ORGANIZATIONS.  THUS, AT THE EXPENSE OF
DESPERATE, FRIGHTENED WOMEN THESE AGENCIES ARE MAKING A HUGE PROFIT-
SOME, SUCH A HUGE PROFIT THAT OUR COMMITTEE MEMBERS WERE ACTUALLY
SHOCKED."  SEE, E.G., STATE V. MITCHELL, 66 MISC. 2D 514, 321 N.Y.S. 2D
756 (1971); STATE V. ABORTION INFORMATION AGENCY, INC., 69 MISC. 2D
825, 323 N.Y.S.2D 597 (1971). 

WITHOUT DENYING THE POWER OF EITHER NEW YORK OR VIRGINIA TO PROHIBIT
ADVERTISING SUCH AS THAT IN ISSUE WHERE BOTH PUBLICATION OF THE
ADVERTISED ACTIVITY AND THE ACTIVITY ITSELF OCCUR IN THE SAME STATE,
THE COURT INSTEAD FOCUSES ON THE MULTISTATE NATURE OF THIS TRANSACTION,
CONCLUDING THAT A STATE "MAY NOT, UNDER THE GUISE OF EXERCISING
INTERNAL POLICE POWERS, BAR A CITIZEN OF ANOTHER STATE FROM
DISSEMINATING INFORMATION ABOUT AN ACTIVITY THAT IS LEGAL IN THAT
STATE."  ANTE, AT 824 - 825.  AND THE COURT GOES SO FAR AS TO SUGGEST
THAT IT IS AN OPEN QUESTION WHETHER A STATE MAY CONSTITUTIONALLY
PROHIBIT AN ADVERTISEMENT CONTAINING AN INVITATION OR OFFER TO ENGAGE
IN ACTIVITY WHICH IS CRIMINAL BOTH IN THE STATE OF PUBLICATION AND IN
THE PROPOSED SITUS OF THE CRIME.  SEE ANTE, AT 828 N. 14. 

THE SOURCE OF THIS RIGID TERRITORIAL LIMITATION ON THE POWER OF THE
STATES IN OUR FEDERAL SYSTEM TO SAFEGUARD THE HEALTH AND WELFARE OF
THEIR CITIZENS IS NOT REVEALED.  IT IS SURELY NOT TO BE FOUND IN CASES
FROM THIS COURT.  /2/  BEGINNING AT LEAST WITH OUR DECISION IN
DELAMATER V. SOUTH DAKOTA, 205 U.S. 93, 100 (1907), WE HAVE
CONSISTENTLY RECOGNIZED THAT IRRESPECTIVE OF A STATE'S POWER TO
REGULATE EXTRATERRITORIAL COMMERCIAL TRANSACTIONS IN WHICH ITS CITIZENS
PARTICIPATE IT RETAINS AN INDEPENDENT POWER TO REGULATE THE BUSINESS OF
COMMERCIAL SOLICITATION AND ADVERTISING WITHIN ITS BORDERS.  THUS FOR
EXAMPLE IN HEAD V. NEW MEXICO BOARD, 374 U.S. 424 (1963), WE UPHELD THE
POWER OF NEW MEXICO TO PROHIBIT COMMERCIAL ADVERTISING BY A NEW MEXICO
RADIO STATION OF OPTOMETRIC SERVICES PROVIDED IN TEXAS.  MR. JUSTICE
BRENNAN, CONCURRING IN THAT OPINION, NOTED THAT A CONTRARY RESULT MIGHT
WELL PRODUCE "A 'NO-MAN'S LAND' . . . IN WHICH THERE WOULD BE AT BEST
SELECTIVE POLICING OF THE VARIOUS ADVERTISING ABUSES AND EXCESSES WHICH
ARE NOW VERY EXTENSIVELY REGULATED BY STATE LAW."  ID., AT 446.  SEE,
E.G., PACKER CORP. V. UTAH, 285 U.S. 105 (1932); BREARD V. ALEXANDRIA,
341 U.S. 622 (1951). 

WERE THE COURT'S STATEMENTS TAKEN LITERALLY, THEY WOULD PRESAGE A
STANDARD OF THE LOWEST COMMON DENOMINATOR FOR COMMERCIAL ETHICS AND
BUSINESS CONDUCT.  SECURITIES ISSUERS COULD CIRCUMVENT THE ESTABLISHED
BLUE-SKY LAWS OF STATES WHICH HAD CAREFULLY DRAWN SUCH LAWS FOR THE
PROTECTION OF THEIR CITIZENS BY ESTABLISHING AS A SITUS FOR
TRANSACTIONS THOSE STATES WITHOUT SUCH REGULATIONS, WHILE SPREADING
OFFERS THROUGHOUT THE COUNTRY.  LOAN SHARKS MIGHT WELL CHOOSE STATES
WITH UNREGULATED SMALL LOAN INDUSTRIES, LURING THE UNWARY WITH IMMUNE
COMMERCIAL ADVERTISEMENTS.  AND IMAGINATION WOULD PLACE THE ONLY LIMIT
ON THE USE OF SUCH A "NO-MAN'S LAND" TOGETHER WITH ARTIFICIALLY CREATED
TERRITORIAL CONTACTS TO BILK THE PUBLIC AND CIRCUMVENT LONG-ESTABLISHED
STATE SCHEMES OF REGULATION. 

SINCE THE COURT SAVES HARMLESS FROM ITS PRESENT OPINION OUR PRIOR
CASES IN THIS AREA, ANTE, AT 825 N. 10, IT MAY BE FAIRLY INFERRED THAT
IT DOES NOT INTEND THE RESULTS WHICH MIGHT OTHERWISE COME FROM A
LITERAL READING OF ITS OPINION.  BUT SOLELY ON THE FACTS BEFORE IT, I
THINK THE COURT TODAY SIMPLY ERRS IN ASSESSING VIRGINIA'S INTEREST IN
ITS STATUTE BECAUSE IT DOES NOT FOCUS ON THE IMPACT OF THE PRACTICES IN
QUESTION ON THE STATE.  CF. YOUNG V. MASCI, 289 U.S. 253 (1933). 
ALTHOUGH THE COMMERCIAL REFERRAL AGENCY, WHOSE ADVERTISEMENT IN
VIRGINIA WAS BARRED, WAS PHYSICALLY LOCATED OUTSIDE THE STATE, THIS
PHYSICAL CONTACT SAYS LITTLE ABOUT VIRGINIA'S CONCERN FOR THE TOUTED
PRACTICES.  VIRGINIA'S INTEREST IN THIS STATUTE LIES IN PREVENTING
COMMERCIAL EXPLOITATION OF THE HEALTH NEEDS OF ITS CITIZENS.  SO LONG
AS THE STATUTE BANS COMMERCIAL ADVERTISING BY PUBLICATIONS WITHIN THE
STATE, THE EXTRATERRITORIAL LOCATION AT WHICH THE SERVICES ARE ACTUALLY
PROVIDED DOES NOT DIMINSH THAT INTEREST. 

SINCE THE STATUTE IN QUESTION IS A "REASONABLE REGULATION THAT
SERVES A LEGITIMATE PUBLIC INTEREST," ANTE, AT 826, I WOULD AFFIRM THE
JUDGMENT OF THE SUPREME COURT OF VIRGINIA. 

/1/ THE COURT, ANTE, AT 817, STATES THAT THE VIRGINIA SUPREME COURT
PLACED NO LIMITING INTERPRETATION ON ITS STATUTE AND THAT IT IMPLIED
THAT THE STATUTE MIGHT APPLY TO DOCTORS, HUSBANDS, AND LECTURERS.  THE
COURT IS IN ERROR:  THE VIRGINIA SUPREME COURT STATED THAT IT WOULD NOT
INTERPRET THE STATUTE TO ENCOMPASS SUCH SITUATIONS.  213 VA. 191, 198,
191 S.E.2D 173, 177 (1972). 

/2/ THE COURT, ANTE, AT 822 - 823, RELIES ON HUNTINGTON V. ATTRILL,
146 U.S. 657, 669 (1892), FOR ITS MAJOR PREMISE THAT VIRGINIA COULD NOT
REGULATE THE RELATIONS OF THE ADVERTISER WITH ITS RESIDENTS SINCE THESE
OCCURRED IN NEW YORK.  TO THE EXTENT THAT THE COURT READS HUNTINGTON TO
IMPOSE A RIGID AND UNTHINKING TERRITORIAL LIMITATION, WHOSE
CONSTITUTIONAL SOURCE IS UNSPECIFIED, ON THE POWER OF THE STATES TO
REGULATE CONDUCT, IT IS PLAINLY WRONG.  THE PASSAGE REFERRED TO BY THE
COURT IN THE HUNTINGTON OPINION IS DICTUM AND APPEARS TO BE A STATEMENT
OF THEN-PREVALENT COMMON-LAW RULES RATHER THAN A CONSTITUTIONAL
HOLDING.  AND THE ATTEMPT TO IMPOSE SUCH A RIGID LIMITATION ON THE
POWER OF THE STATES WAS FIRST REJECTED BY MR. JUSTICE HOLMES, WRITING
FOR THE COURT IN STRASSHEIM V. DAILY, 221 U.S. 280, 285 (1911): 

" ACTS DONE OUTSIDE A JURISDICTION, BUT INTENDED TO PRODUCE AND
PRODUCING DETRIMENTAL EFFECTS WITHIN IT, JUSTIFY A STATE IN PUNISHING
THE CAUSE OF THE HARM AS IF HE HAD BEEN PRESENT AT THE EFFECT . . . ." 
MR. JUSTICE MC KENNA IN HYDE V. UNITED STATES, 225 U.S. 347, 363
(1912), OBSERVED THAT "THIS MUST BE SO IF WE WOULD FIT THE LAWS AND
THEIR ADMINISTRATION TO THE ACTS OF MEN AND NOT BE LED AWAY BY MERE
'BOOKISH THEORICK.'"  SEE, E.G., SKIRIOTES V. FLORIDA, 313 U.S. 69, 74
75 (1941); FORD V. UNITED STATES, 273 U.S. 593, 620 - 621 (1927).  TO
THE EXTENT THAT THE COURT'S CONCLUSION THAT VIRGINIA HAS A NEGLIGIBLE
INTEREST IN ITS STATUTE PROCEEDS FROM THE ASSUMPTION THAT THE STATE WAS
WITHOUT POWER TO REGULATE THE EXTRATERRITORIAL ACTIVITIES OF THE
ADVERTISER INVOLVING VIRGINIA RESIDENTS, IT IS QUITE AT WAR WITH OUR
PRIOR CASES. 

MELVIN L. WULF AND JOHN C. LOWE ARGUED THE CAUSE FOR APPELLANT. 
WITH THEM ON THE BRIEF WERE JOEL M. GORA, JUDITH MEARS, AND F. GUTHRIE
GORDON III. 

D. PATRICK LACY, JR., ASSISTANT ATTORNEY GENERAL OF VIRGINIA, ARGUED
THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WERE ANDREW P. MILLER,
ATTORNEY GENERAL, ANTHONY F. TROY, DEPUTY ATTORNEY GENERAL, AND PAUL L.
GERGOUDIS, ASSISTANT ATTORNEY GENERAL. 

(RAYMOND T. BONNER AND ALAN B. MORRISON FILED A BRIEF FOR PUBLIC
CITIZEN ET AL. AS AMICI CURIAE URGING REVERSAL, 

MICHAEL M. KEARNEY FILD A BRIEF FOR VIRGINIA RIGHT TO LIFE, INC., AS
AMICUS CURIAE URGING AFFIRMANCE.) 
..END :



















UNITED HOUSING FOUNDATION, INC., V. FORMAN, 421 U.S. 837 


       UNITED HOUSING FOUNDATION, INC., ET AL. V. FORMAN ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 74 - 157.  ARGUED APRIL 22, 1975--DECIDED JUNE 16,
1975;

     500 F.2D 1246, REVERSED. 


RESPONDENTS ARE 57 RESIDENTS OF CO-OP CITY, A MASSIVE COOPERATIVE
HOUSING PROJECT IN NEW YORK CITY, ORGANIZED, FINANCED, AND CONSTUCTED
UNDER THE NEW YORK PRIVATE HOUSING FINANCE LAW (MITCHELL-LAMA ACT). 
THEY BROUGHT THIS ACTION ON BEHALF OF ALL THE APARTMENT OWNERS AND
DERIVATIVELY ON BEHALF OF THE HOUSING CORPORATION, ALLEGING, INTER
ALIA, VIOLATIONS OF THE ANTIFRAUD PROVISIONS OF THE SECURITIES ACT OF
1933 AND OF THE SECURITIES EXCHANGE ACT OF 1934 (HEREAFTER COLLECTIVELY
SECURITIES ACTS), IN CONNECTION WITH THE SALE TO RESPONDENTS OF SHARES
OF THE COMMON STOCK OF THE COOPERATIVE HOUSING CORPORATION.  CITING
SUBSTANTIAL INCREASES IN THE TENANTS' MONTHLY RENTAL CHARGES AS A
RESULT OF HIGHER CONSTRUCTION COSTS, RESPONDENTS' CLAIM CENTERED ON A
CO-OP CITY INFORMATION BULLETIN ISSUED IN THE PROJECT'S INITIAL STAGES,
WHICH ALLEGEDLY MISREPRESENTED THAT THE DEVELOPERS WOULD ABSORB FUTURE
COST INCREASES DUE TO SUCH FACTORS AS INFLATION.  UNDER THE MITCHELL
LAMA ACT, WHICH WAS DESIGNED TO ENCOURAGE PRIVATE DEVELOPERS TO BUILD
LOW-COST COOPERATIVE HOUSING, THE STATE PROVIDES LARGE, LONG-TERM LOW
INTEREST MORTGAGE LOANS AND SUBSTANTIAL TAX EXEMPTIONS, CONDITIONED ON
STEP-BY-STEP STATE SUPERVISION OF THE COOPERATIVE'S DEVELOPMENT. 
DEVELOPERS MUST AGREE TO OPERATE THE FACILITIES "ON A NONPROFIT BASIS"
AND MAY LEASE APARTMENTS TO ONLY STATE-APPROVED LESSEES WHOSE INCOMES
ARE BELOW A CERTAIN LEVEL.  THE CORPORATE PETITIONERS IN THIS CASE
BUILT, PROMOTED, AND PRESENTLY CONTROL CO-OP CITY:  UNITED HOUSING
FOUNDATION (UHF), A NONPROFIT MEMBERSHIP CORPORATION, INITIATED AND
SPONSORED THE PROJECT; RIVERBAY, A NONPROFIT COOPERATIVE HOUSING
CORPORATION, WAS ORGANIZED BY UHF TO OWN AND OPERATE THE LAND AND
BUILDINGS AND ISSUE THE STOCK THAT IS THE SUBJECT OF THE INSTANT
ACTION; AND COMMUNITY SECURITIES, INC. (CSI), UHF'S WHOLLY OWNED
SUBSIDIARY, WAS THE PROJECT'S GENERAL CONTRACTOR AND SALES AGENT.  TO
ACQUIRE A CO-OP CITY APRTMENT A PROSPECTIVE PURCHASER MUST BUY 18
SHARES OF RIVERBAY STOCK FOR EACH ROOM DESIRED AT $25 PER SHARE.  THE
SHARES CANNOT BE TRANSFERRED TO A NONTENANT, PLEDGED, ENCUMBERED, OR
BEQUEATHED (EXCEPT TO A SURVIVING SPOUSE), AND DO NOT CONVEY VOTING
RIGHTS BASED ON THE NUMBER OWNED (EACH APARTMENT HAVING ONE VOTE).  ON
TERMINATION OF OCCUPANCY A TENANT MUST OFFER HIS STOCK TO RIVERBAY AT
$25 PER SHARE, AND IN THE UNLIKELY EVENT THAT RIVERBAY DOES NOT
REPURCHASE, THE TENANT CANNOT SELL HIS SHARES FOR MORE THAN THEIR
ORIGINAL PRICE, PLUS A FRACTION OF THE MORTGAGE AMORTIZATION THAT HE
HAS PAID DURING HIS TENANCY, AND THEN ONLY TO A PROSPECTIVE TENANT
SATISFYING THE STATUTORY INCOME ELIGIBILITY REQUIREMENTS.  UNDER THE CO
OP CITY LEASE ARRANGEMENT THE RESIDENT IS COMMITTED TO MAKE MONTHLY
RENTAL PAYMENTS IN ACCORDANCE WITH THE SIZE, NATURE, AND LOCATION OF
THE APARTMENT.  THE SECURITIES ACTS DEFINE A "SECURITY" AS "ANY . . .,
STOCK, . . . INVESTMENT CONTRACT, . . . OR, IN GENERAL, ANY INTEREST OR
INSTRUMENT COMMONLY KNOWN AS A 'SECURITY.'"  PETITIONERS MOVED TO
DISMISS THE COMPLAINT FOR LACK OF FEDERAL JURISDICTION, MAINTAINING
THAT THE RIVERBAY STOCK DID NOT CONSTITUTE SECURITIES AS THUS DEFINED. 
THE DISTRICT COURT GRANTED THE MOTION TO DISMISS.  THE COURT OF APPEALS
REVERSED, HOLDING THAT (1) SINCE THE SHARE PURCHASED WERE CALLED
"STOCK" THE DEFINITIONAL SECTIONS OF THE SECURITIES ACTS WERE LITERALLY
APPLICABLE AND (2) THE TRANSACTION WAS AN INVESTMENT CONTRACT UNDER THE
SECURITIES ACTS, THERE BEING A PROFIT EXPECTATION FROM RENTAL
REDUCTIONS RESULTING FROM (I) THE INCOME PRODUCED BY COMMERCIAL
FACILITIES ESTABLISHED FOR THE USE OF CO-OP CITY TENANTS; (II) TAX
DEDUCTIONS FOR THE PORTION OF MONTHLY RENTAL CHARGES ALLOCABLE TO
INTEREST PAYMENTS ON THE MORTGAGE; AND (III) SAVINGS BASED ON THE FACT
THAT CO-OP CITY APARTMENTS COST SUBSTANTIALLY LESS THAN COMPARABLE
NONSUBSIDIZED HOUSING.  HELD:  THE SHARES OF STOCK INVOLVED IN THIS
LITIGATION OD NOT CONSTITUTE "SECURITIES" WITHIN THE PURVIEW OF THE
SECURITIES ACTS, AND SINCE RESPONDENTS' CLAIMS ARE NOT COGNIZABLE IN
FEDERAL COURT, THE DISTRICT COURT PROPERLY DISMISSED THEIR COMPLAINT. 
PP. 847 - 858. 

(A) WHEN VIEWED AS THEY MUST BE IN TERMS OF THEIR SUBSTANCE (THE
ECONOMIC REALITIES OF THE TRANSACTION) RATHER THAN THEIR FORM, THE
INSTRUMENTS INVOLVED HERE WERE NOT SHARES OF STOCK IN THE ORDINARY
SENSE OF CONFERRING THE RIGHT TO RECEIVE "DIVIDENDS CONTINGENT UPON AN
APPORTIONMENT OF PROFITS," TCHEREPNIN V. KNIGHT, 389 U.S. 332, 339,
WITH THE TRADITIONAL CHARACTERISTICS FO BEING NEGOTIABLE, SUBJECT TO
PLEDGE OR HYPOTHECATION, CONFERRING VOTING RIGHTS PROPORTIONAL TO THE
NUMBER OF SHARES OWNED, AND POSSIBILITY OF APPRECIATING IN VALUE.  ON
THE CONTRARY, THESE INSTRUMENTS WERE PURCHASED, NOT FOR MAKING A
PROFIT, BUT FOR ACQUIRING SUBSIDIZED LOW-COST HOUSING.  PP. 848 - 851. 

(B) A SHARE IN RIVERBAY DOES NOT CONSTITUTE AN "INVESTMENT CONTRACT"
AS DEFINED BY THE SECURITIES ACTS, A TERM WHICH, LIKE THE TERM "ANY . .
. INSTRUMENT COMMONLY KNOWN AS A 'SECURITY,'" INVOLVES INVESTMENT IN A
COMMON VENTURE PREMISED ON A REASONABLE EXPECTATION OF PROFITS TO BE
DERIVED FROM THE ENTREPRENEURIAL OR MANAGERIAL EFFORTS OF OTHERS.  HERE
NEITHER OF THE KINDS OF PROFITS TRADITIONALLY ASSOCIATED WITH
SECURITIES WERE OFFERED TO RESPONDENTS; INSTEAD, AS INDICATED IN THE
INFORMATION BULLETIN, WHICH STRESSED THE "NON-PROFIT" NATURE OF THE
PROJECT, THE FOCUS WAS UPON THE ACQUISITION OF A PLACE TO LIVE.  PP.
851 - 854. 

(C) DEDUCTIBILITY FOR TAX PURPOSES OF THE PORTION OF RENTAL CHARGES
APPLIED TO INTEREST ON THE MORTGAGE (BENEFITS GENERALLY AVAILABLE TO
HOME MORTGAGORS) ARE NOT "PROFITS," AND, IN ANY EVENT, DO NOT DERIVE
FROM THE EFFORTS OF THIRD PARTIES.  PP. 851 - 854. 

(D) LOW RENT ATTRIBUTABLE TO STATE FINANCIAL SUBSIDIES NO MORE
EMBODIES INCOME OR PROFIT ATTRIBUTES THAN OTHER TYPES OF GOVERNMENT
SUBSIDIES.  P. 855. 

(E) SUCH INCOME AS MIGHT DERIVE FROM CO-OP CITY'S LEASING OF
COMMERCIAL FACILITIES WITHIN THE HOUSING PROJECT TO BE USED TO REDUCE
TENANT RENTALS (THE PROSPECT OF WHICH WAS NEVER MENTIONED IN THE
INFORMATION BULLETION) IS TOO SPECULATIVE AND INSUBSTNATIAL TO BRING
THE ENTIRE TRANSACTION WITHIN THE SECURITIES ACTS.  THESE FACILITIES
WERE ESTABLISHED, NOT FOR PROFIT PURPOSES, BUT TO MAKE ESSENTIAL
SERVICES AVAILABLE TO RESIDENTS OF THE HUGE COMPLEX.  PP. 855 - 587. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, MARSHALL, BLACKMUN, AND REHNQUIST, JJ., JOINED. 
BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLASS AND WHITE,
JJ., JOINED, POST, P. 860. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THESE CASES IS WHETHER SHARES OF STOCK ENTITLING A
PURCHASER TO LEASE AN APARTMENT IN CO-OP CITY, A STATE SUBSIDIZED AND
SUPERVISED NONPROFIT HOUSING COOPERATIVE, ARE "SECURITIES" WITHIN THE
PURVIEW OF THE SECURITIES ACT OF 1933 AND THE SECURITIES EXCHANGE ACT
OF 1934. 

        I 

CO-OP CITY IS A MASSIVE HOUSING COOPERATIVE IN NEW YORK CITY.  BUILT
BETWEEN 1965 AND 1971, IT PRESENTLY HOUSES APPROXIMATELY 50,000 PEOPLE
ON A 200-ACRE SITE CONTAINING 35 HIGH-RISE BUILDINGS AND 236 TOWN
HOUSES.  THE PROJECT WAS ORGANIZED, FINANCED, AND CONSTRUCTED UNDER THE
NEW YORK STATE PRIVATE HOUSING FINANCE LAW, COMMONLY KNOWN AS THE
MITCHELL-LAMA ACT, ENACTED TO AMELIORATE A PERCEIVED CRISIS IN THE
AVAILABILITY OF DECENT LOW-INCOME URBAN HOUSING.  IN ORDER TO ENCOURAGE
PRIVATE DEVELOPERS TO BUILD LOW-COST COOPERATIVE HOUSING, NEW YORK
PROVIDES THEM WITH LARGE LONG-TERM, LOW-INTEREST MORTGAGE LOANS AND
SUBSTANTIAL TAX EXEMPTIONS.  RECEIPT OF SUCH BENEFITS IS CONDITIONED ON
A WILLINGNESS TO HAVE THE STATE REVIEW VIRTUALLY EVERY STEP IN THE
DEVELOPMENT OF THE COOPERATIVE.  SEE N.Y. PRIV.  HOUS.  FIN. LAW SEC.
11 - 37, AS AMENDED (1962 AND SUPP. 1974 - 1975).  THE DEVELOPER ALSO
MUST AGREE TO OPERATE THE FACILITY "ON A NONPROFIT BASIS," SEC. 11-A
(2A), AND HE MAY LEASE APARTMENTS ONLY TO PEOPLE WHOSE INCOMES FALL
BELOW A CERTAIN LEVEL AND WHO HAVE BEEN APPROVED BY THE STATE.  /1/ 

THE UNITED HOUSING FOUNDATION (UHF), A NONPROFIT MEMBERSHIP
CORPORATION ESTABLISHED FOR THE PURPOSE OF "AIDING AND ENCOURAGING" THE
CREATION OF "ADEQUATE, SAFE AND SANITARY HOUSING ACCOMMODATIONS FOR
WAGE EARNERS AND OTHER PERSONS OF LOW OR MODERATE INCOME," /2/ APPENDIX
IN COURT OF APPEALS 95A (HEREAFTER APP.), WAS RESPONSIBLE FOR
INITIATING AND SPONSORING THE DEVELOPMENT OF CO-OP CITY.  ACTING UNDER
THE MITCHELL-LAMA ACT, UHF ORGANIZED THE RIVERBAY CORPORATION
(RIVERBAY) TO OWN AND OPERATE THE LAND AND BUILDINGS CONSTITUTING CO-OP
CITY.  RIVERBAY, A NONPROFIT COOPERATIVE HOUSING CORPORATION, ISSUED
THE STOCK THAT IS THE SUBJECT OF THIS LITIGATION.  UHF ALSO CONTRACTED
WITH COMMUNITY SERVICES, CIN.  (CSI), ITS WHOLLY OWNED SUBSIDIARY, TO
SERVE AS THE GENERAL CONTRACTOR AND SALES AGENT FOR THE PROJECT.  /3/
AS REQUIRED BY THE MITCHELL-LAMA ACT, THESE DECISIONS WERE APPROVED BY
THE STATE HOUSING COMMISSIONER. 

TO ACQUIRE AN APARTMENT IN CO-OP CITY AN ELIGIBLE PROSPECTIVE
PURCHASER /4/ MUST BUY 18 SHARES OF STOCK IN RIVERBAY FOR EACH ROOM
DESIRED.  THE COST PER SHARE IS $25, MAKING THE TOTAL COST $450 PER
ROOM, OR $1,800 FOR A FOUR-ROOM APARTMENT.  THE SOLE PURPOSE OF
ACQUIRING THESE SHARES IS TO ENABLE THE PURCHASER TO OCCUPY AN
APARTMENT IN CO-OP CITY; IN EFFECT, THEIR PURCHASE IS A RECOVERABLE
DEPOSIT ON AN APARTMENT.  THE SHARES ARE EXPLICITLY TIED TO THE
APARTMENT:  THEY CANNOT BE TRANSFERRED TO A NONTENANT; NOR CAN THEY BE
PLEDGED OR EBNCUMBERED; AND THEY DESCEND, ALONG WITH THE APARTMENT,
ONLY TO A SURVIVING SPOUSE.  NO VOTING RIGHTS ATTACH TO THE SHARES AS
SUCH:  PARTICIPATION IN THE AFFAIRS OF THE COOPERATIVE APPERTAINS TO
THE APARTMENT, WITH THE RESIDENTS OF EACH APARTMENT BEING ENTITLED TO
ONE VOTE IRRESPECTIVE OF THE NUMBER OF SHARES OWNED. 

ANY TENANT WHO WANTS TO TERMINATE HIS OCCUPANCY, OR WHO IS FORCED TO
MOVE OUT, /5/ MUST OFFER HIS STOCK TO RIVERBAY AT ITS INITIAL SELLING
PRICE OF $25 PER SHARE.  IN THE EXTREMELY UNLIKELY EVENT THAT RIVERBAY
DECLINES TO REPURCHASE THE STOCK, /6/ TENANT CANNOT SELL IT FOR MORE
THAN THE INITIAL PURCHASE PRICE PLUS A FRACTION OF THE PORTION OF THE
MORTGAGE THAT HE HAS PAID OFF, AND THEN ONLY TO A PROSPECTIVE TENANT
SATISFYING THE STATUTORY INCOME ELIGIBILITY REQUIREMENTS.  SEE N.Y.
PRIV.  HOUS.  FIN. LAW SEC. 31-A (SUPP. 1974 - 1975). 

IN MAY 1965, SUBSEQUENT TO THE COMPLETION OF THE INITIAL PLANNING,
RIVERBAY CIRCULATED AN INFORMATION BULLETIN SEEKING TO ATTRACT TENANTS
FOR WHAT WOULD SOMEDAY BE APARTMENTS IN CO-OP CITY.  AFTER DESCRIBING
THE NATURE AND ADVANTAGES OF COOPERATIVE HOUSING GENERALLY AND OF CO-OP
CITY IN PARTICULAR, THE BULLETIN INFORMED PROSPECTIVE TENANTS THAT THE
TOTAL ESTIMATED COST OF THE PROJECT, BASED LARGELY ON AN ANTICIPATED
CONSTRUCTON CONTRACT WITH CSI, WAS $283,695,550.  ONLY A FRACTION OF
THIS SUM, $32,795,550, WAS TO BE RAISED BY THE SALE OF SHARES TO
TENANTS.  THE RMAINING $250,900,000 WAS TO BE FINANCED BY A 40-YEAR LOW
INTEREST MORTGAGE LOAN FROM THE NEW YORK PRIVATE HOUSING FINANCE
AGENCY.  AFTER CONSTRUCTION OF THE PROJECT THE MORTGAGE PAYMENTS AND
CURRENT OPERATING EXPENSES WOULD BE MET BY MONTHLY RENTAL CHARGES PAID
BY THE TENANTS.  WHILE THESE RENTAL CHARGES WERE TO VARY, DEPENDING ON
THE SIZE, NATURE, AND LOCATION OF AN APARTMENT, THE 1965 BULLETIN
ESTIMATED THAT THE "AVERAGE" MONTHLY COST WOULD BE $23.02 PER ROOM, OR
$92.08 FOR A FOUR-ROOM APARTMENT. 

SEVERAL TIMES DURING THE CONSTRUCTION OF CO-OP CITY, RIVERBAY, WITH
THE APPROVAL OF THE STATE HOUSING COMMISSIONER, REVISED ITS CONTRACT
WITH CSI TO ALLOW FOR INCREASED CONSTRUCTION COSTS.  IN ADDITION,
RIVERBAY INCURRED OTHER EXPENSES THAT HAD NOT BEEN REFLECTED IN THE
1965 BULLETIN.  TO MEET THESE INCREASED EXPENDITURES, RIVERBAY, WITH
THE COMMISSIONER'S APPROVAL, REPEATEDLY SECURED INCREASED MORTGAGE
LOANS FROM THE STATE HOUSING AGENCY.  ULTIMATELY THE CONSTRUCTION LOAN
WAS $125 MILLION MORE THAN THE FIGURE ESTIMATED IN THE 1965 BULLETIN. 
AS A RESULT, WHILE THE INITIAL PURCHASING PRICE REMAINED AT $450 PER
ROON, THE AVERAGE MONTHLY RENTAL CHARGES INCREASED PERIODICALLY,
REACHING A FIGURE OF $39.68 PER ROOM AS OF JULY 1974.  /7/ 

THESE INCREASES IN THE RENTAL CHARGES PRECIPITATED THE PRESENT
LAWSUIT.  RESPONDENTS, 57 RESIDENTS OF CO-OP CITY, SUED IN FEDERAL
COURT ON BEHALF OF ALL 15,372 APARTMENT OWNERS, AND DERIVATIVELY ON
BEHALF OF RIVERBAY, SEEKING UPWARDS OF $30 MILLION IN DAMAGES, FORCED
RENTAL REDUCTIONS AND OTHER "APPROPRIATE" RELIEF.  NAMED AS DEFENDANTS
(PETITIONERS HEREIN) WERE UHF, CSI, RIVERBAY, SEVERAL INDIVIDUAL
DIRECTORS OF THESE ORGANIZATIONS, THE STATE OF NEW YORK, AND THE STATE
PRIVATE HOUSING FINANCE AGENCY.  THE HEART OF RESPONDENTS' CLAIM WAS
THAT THE 1965 CO-OP CITY INFORMATION BULLETIN FALSELY REPRESENTED THAT
CSI WOULD BEAR ALL SUBSEQUENT COST INCREASES DUE TO FACTORS SUCH AS
INFLATION.  RESPONDENTS FURTHER ALLEGED THAT THEY WERE MISLED IN THEIR
PURCHASES OF SHARES INCE THE INFORMATION BULLETIN FAILED TO DISCLOSE
SEVERAL CRITICAL FACTS.  /8/ ON THESE BASES, RESPONDENTS ASSERTED TWO
CLAIMS UNDER THE FRAUD PROVISIONS OF THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, SEC. 17(A), 48 STAT. 84, 15 U.S.C. SEC. 77Q (A), AND
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, SEC. 10 (B), 48 STAT.
891, 15 U.S. SEC. 78J (B), AND 17 CFR SEC. 240.10B-5.  THEY ALSO
PRESENTED A CLAIM AGAINST THE STATE FINANCING AGENCY UNDER THE CIVIL
RIGHTS ACT, 42 U.S.C. SEC. 1983, AND 10 PENDENT STATE-LAW CLAIMS. 

PETITIONERS, WHILE DENYING THE SUBSTANCE OF THESE ALLEGATIONS, /9/
MOVED TO DISMISS THE COMPLAINT ON THE GROUND THAT FEDERAL JURISDICTION
WAS LACKING.  THEY MAINTAINED THAT SHARES OF STOCK IN RIVERBAY WERE NOT
"SECURITIES" WITHIN THE DEFINITIONAL SECTIONS OF THE FEDERAL SECURITIES
ACTS.  IN ADDITION, THE STATE PARTIES MOVED TO DISMISS ON SOVEREIGN
IMMUNITY GROUNDS. 

THE DISTRICT COURT GRANTED THE MOTION TO DISMISS.  FORMAN V.
COMMUNITY SERVICES, INC., 366 F.SUPP.  1117 (SDNY 1973).  IT HELD THAT
THE DENOMINATION OF THE SHARES IN RIVERBAY AS "STOCK" DID NOT, BY
ITSELF, MAKE THEM SECURITIES UNDER THE FEDERAL ACTS.  THE COURT FURTHER
RULED, RELYING PRIMARILY ON THIS COURT'S DECISIONS IN SEC V. C.M.
JOINER LEASING CORP., 320 U.S. 344 (1943), AND SEC V. W.J. HOWEY CO.,
328 U.S. 293 (1946), THAT THE PURCHASE IN ISSUE WAS NOT A SECURITY
TRANSACTION SINCE IT WAS NEITHER INDUCED BY AN OFFER OF TANGIBLE
MATERIAL PROFITS, NOR COULD SUCH PROFITS REALISTICALLY BE EXPECTED.  IN
THE DISTRICT COURT'S WORDS, IT WAS "THE FUNDAMENTAL NONPROFIT NATURE OF
THIS TRANSACTION" WHICH PRESENTED "THE INSURMOUNTABLE BARRIER TO
(RESPONDENTS') CLAIMS IN THE) FEDERAL COURT."  366 F.SUPP., AT 1128. 
/10/ 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED.  FORMAN V.
COMMUNITY SERVICES, INC., 500 F.2D 1246 (1974).  IT RESTED ITS DECISION
ON TWO ALTERNATIVE GROUNDS.  FIRST, THE COURT HELD THAT SINCE THE
SHARES PURCHASED WERE CALLED "STOCK" THE SECURITIES ACTS, WHICH
EXPLICITLY INCLUDE "STOCK" IN THEIR DEFINITIONAL SECTIONS, WERE
LITERALLY APPLICABLE.  SECOND, THE COURT OF APPEALS CONCLUDED THAT THE
TRANSACTION WAS AN INVESTMENT CONTRACT WITHIN THE MEANING OF THE ACTS
AND AS DEFINED BY HOWEY, SINCE THERE WAS AN EXPECTATION OF PROFITS FROM
THREE SOURCES:  (I) RENTAL REDUCTIONS RESULTING FROM THE INCOME
PRODUCED BY THE COMMERCIAL FACILITIES ESTABLISHED FOR THE USE OF
TENANTS AT CO-OP CITY; (II) TAX DEDUCTIONS FOR THE PORTION OF THE
MONTHLY RENTAL CHARGES ALLOCABLE TO INTEREST PAYMENTS ON THE MORTGAGE;
AND (III) SAVINGS BASED ON THE FACT THAT APARTMENTS AT CO-OP CITY COST
SUBSTANTIALLY LESS THAN COMPARABLE NONSUBSIDIZED HOUSING.  THE COURT
FURTHER RULED THA THE IMMUNITY CLAIMS BY THE STATE PARTIES WERE
UNAVAILING.  /11/ ACCORDINGLY, THE CASE WAS REMANDED TO THE DISTRICT
COURT FOR CONSIDERATION OF RESPONDENTS' CLAIMS ON THE MERITS. 

IN VIEW OF THE IMPORTANCE OF THE ISSUES PRESENTED WE GRANTED
CERTIROARI.  419 U.S. 1120 (1975).  AS WE CONCLUDE THAT THE DISPUTED
TRANSACTIONS ARE NOT PURCHASES OF SECURITIES WITHIN THE CONTEMPLATION
OF THE FEDERAL STATUTES, WE REVERSE. 

        II 

DEFINES A "SECURITY" AS 

"ANY NOTE, STOCK, TREASURY STOCK, BOND, DEBENTURE, EVIDENCE OF
INDEBTEDNESS, CERTIFICATE OF INTEREST OR PARTICIPATION IN ANY PROFIT
SHARING AGREEMENT, COLLATERAL-TRUST CERTIFICATE, PREORGANIZATION
CERTIFICATE OR SUBSCRIPTION, TRANSFERABLE SHARE, INVESTMENT CONTRACT,
VOTING-TRUST CERTIFICATE, CERTIFICATE OF DEPOSIT FOR A SECURITY,
FRACTIONAL UNDIVIDED INTEREST IN OIL, GAS, OR OTHER MINERAL RIGHTS, OR,
IN GENERAL, ANY INTEREST OR INSTRUMENT COMMONLY KNOWN AS A 'SECURITY,'
OR ANY CERTIFICATE OF INTEREST OR PARTICIPATION IN TEMPORARY OR INTERIM
CERTIFICATE FOR, RECEIPT FOR, GUARANTEE OF, OR WARRANT OR RIGHT TO
SUBSCRIBE TO OR PURCHASE, ANY OF THE FOREGOING."  /12/ IN PROVIDING
THIS DEFINITION CONGRESS DID NOT ATTEMPT TO ARTICULATE THE RELEVANT
ECONOMIC CRITERIA FOR DISTINGUISHING "SECURITIES" FROM "NON
SECURITIES."  RATHER, IT SOUGHT TO DEFINE "THE TERM 'SECURITY' IN
SUFFICIENTLY BROAD AND GENERAL TERMS SO AS TO INCLUDE WITHIN THAT
DEFINITION THE MANY TYPES OF INSTRUMENTS THAT IN OUR COMMERCIAL WORLD
FALL WITHIN THE ORDINARY CONCEPT OF A SECURITY."  H.R. REP. NO. 85, 73D
CONG., 1ST SESS., 11 (1933).  THE TASK HAS FALLEN TO THE SECURITIES AND
EXCHANGE COMMISSION (SEC), THE BODY CHARGED WITH ADMINISTERING THE
SECURITIES ACTS, AND ULTIMATELY TO THE FEDERAL COURTS TO DECIDE WHICH
OF THE MYRIAD FINANCIAL TRANSACTIONS IN OUR SOCIETY COME WITHIN THE
COVERAGE OF THESE STATUTES. 

IN MAKING THIS DETERMINATION IN THE PRESENT CASE WE DO NOT WRITE ON
A CLEAN SLATE.  WELL-SETTLED PRINCIPLES ENUNCIATED BY THIS COURT
ESTABLISH THAT THE SHARES PURCHASED BY RESPONDENTS DO NOT REPRESENT ANY
OF THE "COUNTLESS AND VARIABLE SCHEMES DEVISED BY THOSE WHO SEEK THE
USE OF THE MONEY OF OTHERS ON THE PROMISE OF PROFITS," HOWEY, 328 U.S.
AT 2998 AND THEREFORE DO NOT FALL WITHIN "THE ORDINARY CONCEPT OF A
SECURITY." 

        A 

WE REJECT AT THE OUTSET ANY SUGGESTION THAT THE PRESENT TRANSACTION,
EVIDENCED BY THE SALE OF SHARES CALLED "STOCK," /13/ MUST BE CONSIDERED
A SECURITY TRANSACTION SIMPLY BECAUSE THE STATUTORY DEFINITION OF A
SECURITY INCLUDES THE WORDS "ANY . . . STOCK."  RATHER WE ADHERE TO THE
BASIC PRINCIPLE THAT HAS GUIDED ALL OF THE COURT'S DECISIONS IN THIS
AREA: 

"(IN SEARCHING FOR THE MEANING AND SCOPE OF THE WORD 'SECURITY'  IN
THE ACTS), FORM SHOULD BE DISREGARDED FOR SUBSTANCE AND THE EMPHASIS
SHOULD BE ON ECONOMIC REALITY."  TCHEREPNIN V. KNIGHT, 389 U.S. 332,
336 (1967).  SEE ALSO HOWEY, SUPRA, AT 298. 

THE PRIMARY PURPOSE OF THE ACTS OF 1933 AND 1934 WAS TO ELIMINATE
SERIOUS ABUSES IN A LARGELY UNREGULATED SECURITIES MARKET.  THE FOCUS
OF THE ACTS IS ON THE CAPITAL MARKET OF THE ENTERPRISE SYSTEM:  THE
SALE OF SECURITIES TO RAISE CAPITAL FOR PROFIT-MAKING PURPOSES, THE
EXCHANGES ON WHICH SECURITIES ARE TRADED, AND THE NEED FOR REGULATION
TO PREVENT FRAUD AND TO PROTECT THE INTEREST OF INVESTORS.  BECAUSE
SECURITIES TRANSACTIONS ARE ECONOMIC IN CHARACTER CONGRESS INTENDED THE
APPLICATION OF THESE STATUTES TO TURN ON THE ECONOMIC REALITIES
UNDERLYING A TRANSACTION, AND NOT ON THE NAME APPENDED THERETO.  THUS,
IN CONSTRUING THESE ACTS AGAINST THE BACKGROUND OF THEIR PURPOSE, WE
ARE GUIDED BY A TRADITIONAL CANON OF STATUTORY CONSTRUCTION: 

"(A) THING MAY BE WITHIN THE LETTER OF THE STATUTE AND YET NOT
WITHIN THE STATUTE, BECAUSE NOT WITHIN ITS SPIRIT, NOR WITHIN THE
INTENTION OF ITS MAKERS."  CHURCH OF THE HOLY TRINITY V. UNITED STATES,
143 U.S. 457, 459 (1892).  SEE ALSO UNITED STATES V. AMERICAN TRUCKING
ASSNS., 310 U.S. 534, 543 (1940).  /14/     RESPONDENTS' RELIANCE ON
JOINER AS SUPPORT FOR A "LITERAL APPROACH"  TO DEFINING A SECURITY IS
MISPLACED.  THE ISSUE IN JOINER WAS WHETHER ASSIGNMENTS OF INTERESTS IN
OIL LEASES, COUPLED WITH THE PROMOTERS'  OFFER TO DRILL AN EXPLORATORY
WELL, WERE SECURITIES.  LOOKING TO THE ECONOMIC INDUCEMENT PROVIDED BY
THE PROPOSED EXPLORATORY WELL, THE COURT CONCLUDED THAT THESE LEASES
WERE SECURITIES EVEN THOUGH "LEASES"  AS SUCH WERE NOT INCLUDED IN THE
LIST OF INSTRUMENTS MENTIONED IN THE STATUTORY DEFINITION.  IN DICTUM
THE COURT NOTED THAT "(INSTRUMENTS MAY BE INCLUDED WITHIN (THE
DEFINITON OF A SECURITY), AS (A) MATTER OF LAW, IF ON THEIR FACE THEY
ANSWER TO THE NAME OR DESCRIPTION."  320 U.S., AT 351 (EMPHASIS
SUPPLIED).  AND LATER, AGAIN IN DICTUM, THE COURT STATED THAT A
SECURITY "MIGHT" BE SHOWN "BY PROVING THE DOCUMENT ITSELF, WHICH ON ITS
FACE WOULD BE A NOTE, A BOND, OR A SHARE OF STOCK."  ID., AT 355
(EMPHASIS SUPPLIED).  BY USING THE CONDITIONAL WORDS "MAY" AND "MIGHT"
IN THESE DICTA THE COURT MADE CLEAR THAT IT WAS NOT ESTABLISHING AN
INFLEXIBLE RULE BARRING INQUIRY INTO THE ECONOMIC REALITIES UNDERLYING
A TRANSACTION.  ON THE CONTRARY, THE COURT INTENDED ONLY TO MAKE THE
RATHER OBVIOUS POINT THAT, IN CONTRAST TO THE INSTRUMENT BEFORE IT
WHICH WAS NOT INCLUDED WITHIN THE EXPLICIT STATUTORY TERMS, MOST
INSTRUMENTS BEARING THESE TRADITIONAL TITLES ARE LIKELY TO BECOVERED BY
THE STATUTES.  /15/ 

IN HOLDING THAT THE NAME GIVEN TO AN INSTRUMENT IS NOT DISPOSITIVE,
WE DO NOT SUGGEST THAT THE NAME IS WHOLLY IRRELEVANT TO THE DECISION
WHETHER IT IS A SECURITY.  THERE MAY BE OCCASIONS WHEN TGHE USE OF A
TRADITIONAL NAME SUCH AS "STOCKS" OR "BONDS" WILL LEAD A PURCHASER
JUSTIFIABLY TO ASSUME THAT THE FEDERAL SECURITIES LAWS APPLY.  THIS
WOULD CLEARLY BE THE CASE WHEN THE UNDERLYING TRANSACTION EMBODIES SOME
OF THE SIGNIFICANT CHARACTERISTICS TYPICALLY ASSOCIATED WITH THE NAMED
INSTRUMENT. 

IN THE PRESENT CASE RESPONDENTS DO NOT CONTEND, NOR COULD THEY, THAT
THEY WERE MISLED BY USE OF THE WORD "STOCK" INTO BELIEVING THAT THE
FEDERAL SECURITIES LAWS GOVERNED THEIR PURCHASE.  COMMON SENSE SUGGESTS
THAT PEOPLE WHO INTEND TO ACQUIRE ONLY A RESIDENTIAL APARTMENT IN A
STATE-SUBSIDIZED COOPERATIVE, FOR THEIR PERSONAL USE, ARE NOT LIKELY TO
BELIEVE THAT IN REALITY THEY ARE PURCHASING INVESTMENT SECURITIES
SIMPLY BECAUSE THE TRANSACTION IS EVIDENCED BY SOMETHING CALLED A SHARE
OF STOCK.  THESE SHARES HAVE NONE OF THE CHARACTERISTICS "THAT IN OUR
COMMERCIAL WORLD FALL WITHIN THE ORDINARY CONCEPT OF A SECURITY."  H.R.
REP. NO. 85, SUPRA, AT 11.  DESPITE THEIR NAME, THEY LACK WHAT THE
COURT IN TCHEREPNIN DEENMED THE MOST COMMON FEATURE OF STOCK:  THE
RIGHT TO RECEIVE "DIVIDENDS CONTINGENT UPON AN APPORTIONMENT OF
PROFITS."  389 U.S., AT 339.  NOR DO THEY POSSESS THE OTHER
CHARACTERISTICS TRADITIONALLY ASSOCIATED WITH STOCK:  THEY ARE NOT
NEGOTIABLE; THEY CANNOT BE PLEDGED OR HYPOTHECATED; THEY CONFER NO
VOTING RIGHTS IN PROPORTION TO THE NUMBER OF SHARES OWNED; AND THEY
CANNOT APPRECIATE IN VALUE.  IN SHORT, THE INDUCEMENT TO PURCHASE WAS
SOLELY TO ACQUIRE SUBSIDIZED LOW-COST LIVING SPACE; IT WAS NOT TO
INVEST FOR PROFIT. 

        B 

THE COURT OF APPEALS, AS AN ALTERNATIVE GROUND FOR ITS DECISION,
CONCLUDED THAT A SHARE IN RIVERBAY WAS ALSO AN "INVESTMENT CONTRACT" AS
DEFINED BY THE SECURITIES ACTS.  RESPONDENTS FURTHER ARGUE THAT IN ANY
EVENT WHAT THEY AGREED TO PURCHASE IS "COMMONLY KNOWN AS A 'SECURITY'"
WITHIN THE MEANING OF THESE LAWS.  IN CONSIDERING THESE CLAIMS WE AGAIN
MUST EXAMINE THE SUBSTANCE--THE ECONOMIC REALITIES OF THE TRANSACTION--
RATHER THAN THE NAMES THAT MAY HAVE BEEN EMPLOYED BY THE PARTIES.  WE
PRECEIVE NO DISTINCTION, FOR PRESENT PURPOSES, BETWEEN AN "INVESTMENT
CONTRACT" AND AN "INSTRUMENT COMMONLY KNOWN AS A 'SECURITY.'"  IN
EITHER CASE, THE BASIC TEST FOR DISTINGUISHING THE TRANSACTION FROM
OTHER COMMERCIAL DEALINGS IS 

"WHETHER THE SCHEME INVOLVES AN INVESTMENT OF MONEY IN A COMMON
ENTERPRISE WITH PROFITS TO COME SOLELY FROM THE EFFORTS OF OTHERS." 
HOWEY, 328 U.S., AT 301.  /16/ THIS TEST, IN SHORTHAND FORM, EMBODIES
THE ESSENTIAL ATRIBUTES THAT RUN THROUGH ALL OF THE COURT'S DECISIONS
DEFINING A SECURITY.  THE TOUCHSTONE IS THE PRESENCE OF AN INVESTMENT
IN A COMMON VENTURE PREMISED ON A REASONABLE EXPECTATION OF PROFITS TO
BE DERIVED FROM THE ENTREPRENEURIAL OR MANAGERIAL EFFORTS OF OTHERS. 
BY PROFITS, THE COURT HAS MEANT EITHER CAPITAL APPRECIATION RESULTING
FROM THE DEVELOPMENT OF THE INITIAL INVESTMENT, AS IN JOINER, SUPRA
(SALE OF OIL LEASES CONDITIONED ON PROMOTERS' AGREEMENT TO DRILL
EXPLORATORY WELL), OR A PARTICIPATION IN EARNINGS RESULTING FROM THE
USE OF INVESTORS' FUNDS, AS IN TCHEREPNIN V. KNIGHT, SUPRA (DIVIDENDS
ON THE INVESTMENT BASED ON SAVINGS AND LOAN ASSOCIATION'S PROFITS).  IN
SUCH CASES THE INVESTOR IS "ATTRACTED SOLELY BY THE PROSPECTS OF A
RETURN" ON HIS INVESTMENT.  HOWEY, SUPRA, AT 300.  BY CONTRAST, WHEN A
PURCHASER IS NOTIVATED BY A DESIRE TO USE OR CONSUME THE ITEM PURCHASED
-"TO OCCUPY THE LAND OR TO DEVELOP IT THEMSELVES," AS THE HOWEY COURT
PUT IT, IBID.--THE SECURITIES LAWS DO NOT APPLY.  /17/  SEE ALSO
JOINER, SUPRA.  /18/ 

IN THE PRESENT CASE THERE CAN BE NO DOUBT THAT INVESTORS WERE
ATTRACTED SOLELY BY THE PROSPECT OF ACQUIRING A PLACE TO LIVE, AND NOT
BY FINANCIAL RETURNS ON THEIR INVESTMENTS.  THE INFORMATION BULLETIN
DISTRIBUTED TO PROSPECTIVE RESIDENTS EMPHASIZED THE FUNDAMENTAL NATURE
AND PURPOSE OF THE UNDERTAKING: 

     " A COOPERATIVE IS A NON-PROFIT ENTERPRISE OWNED AND
CONTROLLED

  DEMOCRATICALLY BY ITS MEMBERS--THE PEOPLE WHO ARE USING ITS

  SERVICES.  . . .

        * * * * * 

     " PEOPLE FIND LIVING IN A COOPERATIVE COMMUNITY ENJOYABLE FOR

  MORE THAN ONE REASON.  MOST PEOPLE JOIN, HOWEVER, FOR THE SIMPLE

  REASON THAT IT IS A WAY TO OBTAIN DECENT HOUSING AT A REASONABLE

  PRICE.  HOWEVER, THERE ARE OTHER ADVANTAGES.  THE PURPOSE OF A

COOPERATIVE IS TO PROVIDE HOME OWNERSHIP, NOT JUST APARTMENTS TO

  RENT.  THE COMMUNITY IS DESIGNED TO PROVIDE A FAVORABLE

  ENVIRONMENT FOR FAMILY AND COMMUNITY LIVING.  . . . 

     " THE COMMON BOUND OF COLLECTIVE OWNERSHIP WHICH YOU SHARE

  MAKES LIVING IN A COOPERATIVE DIFFERENT.  IT IS A COMMUNITY OF

  NEIGHBORS.  HOME OWNERSHIP, COMMON INTERESTS AND THE COMMUNITY

  ATMOSPHERE MAKE LIVING IN A COOPERATIVE LIKE LIVING IN A SMALL

  TOWN.  AS A RULE THERE IS VERY LITTLE TURNOVER IN A

  COOPERATIVE."  APP. 162A, 166A. 

NOWHERE DOES THE BULLETIN SEEK TO ATTRACT INVESTORS BY THE PROSPECT OF
PROFITS RESULTING FROM THE EFFORTS OF THE PROMOTERS OR THIRD PARTIES. 
ON THE CONTRARY, THE BULLETIN REPEATEDLY EMPHASIZES THE "NOMPROFIT"
NATURE OF THE ENDEAVOR.  IT EXPLAINS THAT IF RENTAL CHARGES EXCEED
EXPENSES THE DIFFERENCE WILL BE RETURNED AS A REBATE, NOT INVESTED FOR
PROFIT.  IT ALSO INFORMAS PURCHASERS THAT THEY WILL BE UNABLE TO RESELL
THEIR APARTMENTS AT A PROFIT SINCE THE APARTMENT MUST FIRST BE OFFERED
BACK TO RIVERBAY "AT THE PRICE . . . PAID FOR IT."  /19/ ID., AT 163A. 
IN SHORT, NEITHER OF THE KINDS OF PROFITS TRADITIONALLY ASSOCIATED WITH
SECURITIES WAS OFFERED TO RESPONDENTS. 

THE COURT OF APPEALS RECOGNIZED THAT THERE MUST BE AN EXPECTATION OF
PROFITS FOR THESE SHARES TO BE SECURITIES, AND CONCEDED THAT THERE IS
"NO POSSIBLE PROFIT ON A REASALE OF (THIS) STOCK."  500 F.2D, AT 1254. 
THE COURT CORRECTLY NOTED HOWEVER, THAT PROFIT MAY BE DERIVED FROM THE
INCOME YIELDED BY AN INVESTMENT AS WELL AS FROM CAPITAL APPRECIATION,
AND THEN PROCEEDED TO FIND "AN EXPECTATION OF 'INCOME' IN AT LEAST
THREE WAYS."  IBID.  TWO OF THESE SUPPOSED SOURCES OF INCOME OR PROFITS
MAY BE DISPOSED OF SUMMARILY.  WE TURN FIRST TO THE COURT OF APPEALS'
RELIANCE ON THE DEDUCTIBILITY FOR TAX PURPOSES OF THE PROTION OF THE
MONTHLY RENTAL CHARGE APPLIED TO INTEREST ON THE MORTGAGE.  WE KNOW OF
NO BASIS IN LAW FOR THE VIEW THAT THE PAYMENT OF INTEREST, WITH ITS
CONSEQUENT DEDUCTIBILITY FOR TAX PURPOSES, CONSTITUTES INCOME OR
PROFITS.  /20/  THESE TAX BENEFITS ARE NOTHING MORE THAN THAT WHICH IS
AVAILABLE TO ANY HOMEOWNER WHO PAYS INTEREST ON HIS MORTGAGE.  SEE SEC.
216 OF INTERNAL REVENUE CODE.  26 U.S.C. SEC. 216; ECKSTEIN V. UNITED
STATES, 196 CT. CL. 644, 452 F.2D 1036 (1971). 

THE COURT OF APPEALS ALSO FOUND SUPPORT FOR ITS CONCEPT OF PROFITS
IN THE FACT THAT CO-OP CITY OFFERED SPACE AT A COST SUBSTANTIALLY BELOW
THE GOING RENTAL CHARGES FOR COMPARABLE HOUSING.  AGAIN, THIS IS AN
INAPPROPRIATE THEORY OF "PROFITS" THAT WE CANNOT ACCEPT.  THE LOW RENT
DERIVES FROM THE SUBSTANTIAL FINANCIAL SUBSIDIES PROVIDED BY THE STATE
OF NEW YORK.  THIS BENEFIT CANNOT BE LIQUIDATED INTO CASH; NOR DOES IT
RESULT FROM THE MANAGERIAL EFFORTS OF OTHERS.  IN A REAL SENSE, IT NO
MORE EMBODIES THE ATTRIBUTES OF INCOME OR PROFITS THAN DO WELFARE
BENEFITS, FOOD STAMPS, OR OTHER GOVERNMENT SUBSIDIES. 

THE FINAL SOURCE OF PROFIT RELIED ON BY THE COURT OF APPEALS WAS THE
POSSIBILITY OF NET INCOME DERIVED FROM THE LEASING BY CO-OP CITY OF
COMMERCIAL FACILITIES, PROFESSIONAL OFFICES AND PARKING SPACES, AND ITS
OPERATION OF COMMUNITY WASHING MACHINES.  THE INCOME, IF ANY, FROM
THESE CONVENIENCES, ALL LOCATED WITHIN THE COMMON AREAS OF THE HOUSING
PROJECT, IS TO BE USED TO REDUCE TENANT RENTAL COSTS.  CONCEPTUALLY,
ONE MIGHT READILY AGREE THAT NET INCOME FROM THE LEASING OF COMMERCIAL
AND PROFESSIONAL FACILITIES IS THE KIND OF PROFIT TRADITIONALLY
ASSOCIATED WITH A SECURITY INVESTMENT.  /21/  SEE TCHEREPNIN V. KNIGHT,
SUPRA.  BUT IN THE PRESENT CASE THIS INCOME--  IF INDEED THERE IS ANY-
IS FAR TOO SPECULATIVE AND INSUBSTANTIAL TO BRING THE ENTIRE
TRANSACTION WITHIN THE SECURITIES ACTS. 

INITIALLY WE NOTE THAT THE PROSPECT OF SUCH INCOME AS A MEANS OF
OFFSETTING RENTAL COSTS IS NEVER MENTIONED IN THE INFORMATION
BULLETIN.  THUS IT IS CLEAR THAT INVESTORS WERE NOT ATTRACTED TO CO-OP
CITY BY THE OFFER OF THESE POTENTIAL RENTAL REDUCTIONS.  SEE JOINER,
320 U.S., AT 353.  MOREOVER, NOTHING IN THE RECORD SUGGESTS THAT THE
FACILITIES IN FACT RETURN A PROFIT IN THE SENSE THAT THE LEASING FEES
ARE GREATER THAN THE ACTUAL COST TO CO-OP CITY OF THE SPACE RENTED. 
/22/ THE SHORT OF THE MATTER IS THAT THE STORES AND SERVICES IN
QUESTION WERE ESTABLISHED NOT A MEANS OF RETURNING PROFITS TO TENANTS,
BUT FOR THE PURPOSE OF MAKING ESSENTIAL SERVICES AVAILABLE FOR THE
RESIDENTS OF THIS ENORMOUS COMPLEX.  /23/ BY STATUTE THESE FACILITIES
CAN ONLY BE "INCIDENTAL AND APPURTENANT" TO THE HOUSING PROJECT.  N.Y.
PRIV.  HOUS.  FIN. LAW SEC. 12 (5) (SUPP. 1974 - 1975).  UNDOUBTEDLY
THEY MAKE CO-OP CITY A MORE ATTRACTIVE HOUSING OPPORTUNITY, BUT THE
POSSIBILITY OF SOME RENTAL REDUCTION IS NOT AN "EXPECTATION OF PROFIT"
IN THE SENSE FOUND NECESSARY IN HOWEY.  /24/ 

THERE IS NO DOUBT THAT PURCHASERS IN THIS HOUSING COOPERATIVE SOUGHT
TO OBTAIN A DECENT HOME AT AN ATTRACTIVE PRICE.  BUT THAT TYPE OF
ECONOMIC INTEREST CHARACTERIZES EVERY FORM OF COMMERCIAL DEALING.  WHAT
DISTINGUISHES A SECURITY TRANSACTION--AND WHAT IS ABSENT HERE--IS AN
INVESTMENT WHERE ONE PARTS WITH HIS MONEY IN THE HPE OF RECEIVING
PROFITS FROM THE EFFORTS OF OTHERS, AND NOT WHERE HE PURCHASES A
COMODITY FOR PERSONAL CONSUMPTION OR LIVING QUARTERS FOR PERSONAL USE. 
/25/

        III 

IN HOLDING THAT THERE IS NO FEDERAL JURISDICTION, WE DO NOT ADDRESS
THE MERITS OF RESPONDENTS' ALLEGATIONS OF FRAUD.  NOR DO WE INDICATE
ANY VIEW AS TO WHETHER THE TYPE OF CLAIMS HERE INVOLVED SHOULD BE
PROTECTED BY FEDERAL REGULATION.  /26/ WE DECIDE ONLY THAT THE TYPE OF
TRANSACTION BEFORE US, IN WHICH THE PURCHASERS WERE INTERESTED IN
ACQUIRING HOUSING RAHTER THAN MAKING AN INVESTMENT FOR PROFIT, IS NOT
WITHIN THE SCOPE OF THE FEDERAL SECURITIES LAWS. 

SINCE RESPONDENTS' CLAIMS ARE NOT COGNIZABLE IN FEDERAL COURT, THE
DISTRICT COURT PROPERLY DISMISSED THEIR COMPLAINT.  /27/ THE JUDGMENT
BELOW IS THEREFORE REVERSED. 

/1/ ELIGIBILITY IS LIMITED TO FAMILIES WHOSE MONTHLY INCOME DOES NOT
EXCEED SIX TIMES THE MONTHLY RENTAL CHARGE (OR FOR FAMILIES OF FOUR OR
MORE, SEVEN TIMES THE RENTAL CHARGE).  N.Y. PRIV.  HOUS.  FIN. LAW SEC.
31 (2) (A) (SUPP. 1974 - 1975).  PREFERENCE IN ADMISSION MUST BE GIVEN
TO VETERANS, THE HANDICAPPED, AND THE ELDERLY.  SEC. 31 (7) - (9). 

/2/ UHF IS COMPOSED OF LABOR UNIONS, HOUSING COOPERATIVES, AND CIVIC
GROUPS.  IT HAS SPONSORED THE CONSTRUCTION OF SEVERAL MAJOR HOUSING
COOPERATIVES IN NEW YORK CITY. 

/3/ CSI IS A BUSINESS CORPORATION THAT HAS ACTED AS THE CONTRACTOR
ON SEVERAL UHF-SPONSORED HOUSING COOPERATIVES. 

/4/ RESPONDENTS ARE REFERRED TO HEREIN VARIOUSLY AS "PURCHASERS,"
"OWNERS," OR "TENANTS."  RESPONDENTS DO NOT HOLD LEGAL TITLE TO THEIR
RESPECTIVE APARTMENTS, BUT THEY ARE PURCHASERS AND OWNERS OF THE SHARES
OF RIVERBAY WHICH ENTITLE TJEM TO OCCUPY THE APARTMENTS.  BY VIRTUE OF
THEIR RIGHT OF OCCUPANCY, RESPONDENTS ARE USUALLY DESRIBED AS TENANTS. 

/5/ A TENANT CAN BE FORCED TO MOVE OUT IF HE VIOLATES THE PROVISIONS
OF HIS "OCCUPANCY AGREEMENT," WHICH IS ESSNTIALLY A LEASE FOR THE
APARTMENT, OR IF HIS INCOME GROWS TO EXCEED THE ELIGIBILITY STANDARDS. 

/6/ TO DATE EVERY FAMILY THAT HAS WITHDRAWN FROM CO-OP CITY HAS
RECEIVED BACK ITS INITIAL PAYMENT IN FULL.  INDEED, AT THE TIME THIS
SUIT WAS FILED THERE WERE 7,000 FAMILIES ON THE WAITING LIST FOR
APARTMENTS IN THIS COOPERATIVE.  IN ADDITION, A SPECIAL FUND OF NEARLY
$1 MILLION HAD BEEN ESTABLISHED BY SMALL MONTHLY CONTRIBUTIONS FROM ALL
TENANTS TO INSURE THAT THOSE WANTING TO MOVE OUT WOULD RECEIVE FULL
COMPENSATION FOR THEIR SHARES. 

/7/ AS THE RENTAL CHARGES INCREASED, THE INCOME ELIGIBILITY
REQUIREMENTS FOR RESIDENTS OF CO-OP CITY EXPANDED ACCORDINGLY.  SEE N.
1, SUPRA.     /8/ RESPONDENTS MAINTAINED THAT THE FOLLOWING MATERIAL
FACTS WERE OMITTED:  (I) THE ORIGINAL ESTIMATED COST HAD NEVER BEEN
ADHERED TO IN ANY OF THE PREVIOUS MITCHELL-LAMA PROJECTS SPONSORED BY
UHF AND BUILT BY CSI; (II) PETITONERS KNEW THAT THE INITIAL ESTIMATE
WOULD NOT BE FOLLOWED IN THE PRESENT PROJECT; (III) CSI WAS A WHOLLY
OWNED SUBSIDIARY OF UHF; (IV) CSI'S NET WORTH WAS SO SMALL THAT IT
COULD NOT HAVE BEEN LEGALLY HELD TO COMPLETE THE CONTRACT WITHIN THE
ORIGINAL ESTIMATED COSTS; (V) THE STATE HOUSING COMMISSIONER HAD WAIVED
HIS OWN RULE REGARDING LIQUIDITY REQUIREMENTS IN APPROVING CSI AS THE
CONTRACTOR; AND (VI) THERE WAS AN ADDITIONAL UNDISCLOSED CONTRACT
BETWEEN CSI AND RIVERBAY.     /9/ PETITIONERS ASSERTED THAT THE
INFORMATION BULLETIN WARNED PURCHASERS OF THE POSSIBILITY OF RENTAL
INCREASES, AND DENIED THAT IT OMITTED MATERIAL FACTS.  THEY ALSO ARGUED
THAT PRIOR TO OCCUPANCY ALL TENANTS WERE INFORMED THAT RENTAL CHARGES
HAD INCREASED.  IN ANY ENENT, PETITIONERS CLAIMED THAT RESPONDENTS HAVE
SUFFERED NO DAMAGES SINCE THEY MAY MOVE OUT AND RETRIEVE THEIR INITIAL
INVESTMENTS IN FULL. 

/10/ THE DISTRICT COURT ALSO DISMISSED THE SEC. 1983 CLAIM FINDING
THAT THE "FEDERAL SECURITIES ALLEGATIONS REPRESENT THE ONLY WELL
PLEADED UNDERLYING BASIS FOR JURISDICTION UNDER THE CIVIL RIGHTS ACT." 
366 F.SUPP.  1117, 1132 (1973).  IN VIEW OF THESE RULINGS THE COURT DID
NOT REACH THE SOVEREIGN IMMUNITY CLAIMS. 

/11/ THE COURT OF APPEALS HELD THAT THE STATE AGENCY WAS INDEPENDENT
AND DISTINCT FROM THE STATE ITSELF AND THEREFORE WAS A "PERSON" FOR
PURPOSES OF SEC. 1983, THAT BOTH THE AGENCY AND THE STATE HAD WAIVED
IMMUNITY UNDER SEC. 32 (5) OF THE PRIVATE HOUSING FINANCE LAW, AND THAT
THE STATE HAD ALSO IMPLICITLY WAIVED ITS IMMUNITY BY VOLUNTARILY
PARTICIPATING IN THE SALE OF SECURITIES, AN AREA SUBJECT TO PLENARY
FEDERAL REGULATION.  SEE PARDEN V. TERMINAL R. CO., 377 U.S. 184
(1964).  IN VIEW OF OUR DISPOSITION OF THESE CASES WE DO NOT REACH
THESE ISSUES. 

/12/ THE DEFINITION OF A SECURITY IN SEC. 3 (A) (10) OF THE 1934
ACT, 15 U.S.C. SEC. 78C (A) (10), IS VIRTUALLY IDENTICAL AND, FOR
PRESENT PURPOSES, THE COVERAGE OF THE TWO ACTS MAY BE CONSIDERED THE
SAME.  SEE TCHEREPNIN V. KNIGHT, 389 U.S. 332, 336, 342 (1967); S. REP.
NO. 792, 73D CONG., 2D SESS., 14 (1934). 

/13/ WHILE THE RECORD DOES NOT INDICATE PRECISELY WHY THE TERM
"STOCK" WAS USED FOR THE INSTANT TRANSACTION, IT APPEARS THAT THIS FORM
IS GENERALLY USED AS A MATTER OF TRADITION AND CONVENIENCE.  SEE P.
ROHAN & M. RESKIN, COOPERATIVE HOUSING LAW & PRACTICE SEC 2.01 (4)
(1973). 

/14/ WITH THE EXCEPTION OF THE SECOND CIRCUIT, EVERY COURT OF
APPEALS RECENTLY TO CONSIDER THE ISSUE HAS REJECTED THE LITERAL
APPROACH URGED BY RESPONDENTS.  SEE C.N.S. ENTERPRISES, INC. V. G. & G.
ENTERPRISES, INC., 508 F.2D 1354 (CA7 1975); MC CLURE V. FIRST NATIONAL
BANK OF LUBBOCK, 497 F.2D 490 (CA5 1974), CERT. DENIED, 420 U.S. 930
(1975); LINO V. CITY INVESTING CO., 487 F.2D 689 (CA3 1973).  SEE ALSO
1 L. LOSS, SECURITIES REGULATION 493 (2D ED. 1961) ("SUBSTANCE GOVERNS
RATHER THAN FORM:  . . . JUST AS SOME THINGS WHICH LOOK LIKE REAL
ESTATE ARE SECURITIES, SOME THINGS WHICH LOOK LIKE SECURITIES ARE REAL
ESTATE"). 

/15/ NOR CAN RESPONDENTS DERIVE ANY SUPPORT FOR A LITERAL APPROACH
FROM TCHEREPNIN V. KNIGHT, SUPRA, WHICH QUOTED THE JOINER DICTUM. 
INDEED IN TCHEREPNIN THE COURT EXPLICITLY STATED THAT "FORM SHOULD BE
DISREGARDED FOR SUBSTANCE," 389 U.S., AT 336, AND ONLY AFTER ANALYZING
THE ECONOMIC REALITIES OF THE TRANSACTION AT ISSUE DID IT CONCLUDE THAT
AN INSTRUMENT CALLED A "WITHDRAWABLE CAPITAL SHARE" WAS, IN SUBSTANCE,
AN "INVESTMENT CONTRACT," A SHARE OF "STOCK," A "CERTIFICATE OF
INTEREST OR PARTICIPATION IN (A) PROFIT-SHARING AGREEMENT," AND A
"TRANSFERABLE SHARE." 

/16/ THIS TEST SPEAKS IN TERMS OF "PROFITS TO COME SOLELY FROM THE
EFFORTS OF OTHERS."  (EMPHASIS SUPPLIED.)  ALTHOUGH THE ISSUE IS NOT
PRESENTED IN THIS CASE, WE NOTE THAT THE COURT OF APPEALS FOR THE NINTH
CIRCUIT HAS HELD THAT "THE WORD 'SOLELY' SHOULD NOT BE READ AS A STRICT
OR LITERAL LIMITATION ON THE DEFINITION OF AN INVESTMENT CONTRACT, BUT
RATHER MUST BE CONSTRUED REALISTICALLY, SO AS TO INCLUDE WITHIN THE
DEFINITION THOSE SCHEMES WHICH INVOLVE IN SUBSTANCE, IF NOT FORM,
SECURITIES."  SEC V. GLENN W. TURNER ENTERPRISES, 474 F.2D 476, 482,
CERT. DENIED, 414 U.S. 821 (1973).  WE EXPRESS NO VIEW, NOWEVER, AS TO
THE HOLDING OF THIS CASE. 

/17/ IN SOME TRANSACTIONS THE INVESTOR IS OFFERED BOTH A COMMODITY
OR REAL ESTATE FOR USE AND AN EXPECTATION OF PROFITS.  SEE SEC RELEASE
NO. 33 - 5347, 38 FED. REG. 1735 (JAN. 18, 1973).  SEE GENERALLY ROHAN,
THE SECURITIES LAW IMPLICATIONS OF CONDOMINIUM MARKETING PROGRAMS WHICH
REATURE A RENTAL POOL, 2 CONN. L. REV. 1 (1969).  THE APPLICATION OF
THE FEDERAL SECURITIES LAWS TO THESE TRANSACTIONS MAY RAISE DIFFICULT
QUESTIONS THAT ARE NOT PRESENT IN THIS CASE. 

/18/ IN SEC V. C.M JOINER LEASING CORP., 320 U.S. 344, 348 (1943),
THE COURT STATED: 

" UNDISPUTED FACTS SEEM TO US, HOWEVER, TO ESTABLISH THE CONCLUSION
THAT DEFENDANTS WERE NOT, AS A PRACTICAL MATTER, OFFERING NAKED
LEASEHOLD RIGHTS.  HAD THE OFFER MAILED BY DEFENDANTS OMITTED THE
ECONOMIC INDUCEMENTS OF THE PROPOSED AND PROMISED EXPLORATION WELL, IT
WOULD HAVE BEEN A QUITE DIFFERENT PROPOSITION."  THIS DISTINCTION WAS
CRITICAL BECAUSE THE EXPLORATORY DRILLINGS GAVE THE INVESTMENTS "MOST
OF THEIR VALUE AND ALL OF THEIR LURE."  ID., AT 349.  THE LAND ITSELF
WAS PURELY AN INCIDENTAL CONSIDERATION IN THE TRANSACTION. 

/19/ THIS REQUIREMENT EFFECTIVELY INSURES THAT NO APARTMENT WILL BE
SOLD FOR MORE THAN ITS ORGINAL COST.  CONSONANT WITH THE PURPOSES OF
THE MITCHELL-LAMA ACT, WHENEVER THERE ARE PROSPECTIVE BUYERS WILLING TO
PAY AS MUCH AS THE INITIAL PURCHASE PRICE FOR AN APARTMENT IN CO-OP
CITY, RIVERBAY WILL REPURCHASE THE APARTMENT AND RESELL IT AT ITS
ORIGINAL COST.  SEE APP. 138A IF, FOR SOME REASON, RIVERBAY DOES NOT
PURCHASE THE APARTMENT THE TENANT STILL CANNOT MAKE A PROFIT ON HIS
SALE.  SEE SUPRA, AT 842 - 843. 

/20/ EVEN IF THESE TAX DEDUCTIONS WERE CONSIDERED PROFITS, THEY
WOULD NOT BE THE TYPE ASSOCIATED WITH A SECURITY INVESTMENT SINCE THEY
DO NOT RESULT FROM THE MANAGERIAL EFFORTS OF OTHERS.  SEE ROSENBAUM,
THE RESORT CONDOMINIUM AND THE FEDERAL SECURITIES LAWS--A CASE STUDY IN
GOVERNMENTAL INFLEXIBILITY, 60 VA. L. REV. 785, 795 - 796 (1974); NOTE,
62 GEO. L.J. 1515, 1524 - 1526 (1974). 

/21/ THE "INCOME" DERIVED FROM THE RENTAL OF PARKING SPACES AND THE
OPERATION OF WASHING MACHINES CLEARLY WAS NOT PROFIT FOR RESPONDENTS
SINCE THESE FACILITIES WERE PROVIDED EXCLUSIVELY FOR THE USE OF
TENANTS.  THUS WHEN THE INCOME COLLECTED FROM THE USE OF THESE
FACILITIES EXCEEDS THE COST OF THEIR OPERATION THE TENANTS SIMPLY
RECEIVE THE RETURN OF THE INITIAL OVERCHARGE IN THE FORM OF A RENT
REBATE.  INDEED, IT COULD BE ARGUED THAT THE "INCOME" FROM THE
COMMERCIAL AND PROFESSIONAL FACILITIES IS ALSO, IN EFFECT, A REBATE ON
THE COST OF GOODS AND SERVICES PURCHASED AT THESE FACILITIES SINCE IT
APPEARS LIKELY THAT THEY ARE PATRONIZED ALMOST EXCLUSIVELY BY CO-OP
CITY RESIDENTS.  SEE NOTE, 53 TEX. L. REV. 623, 630 - 631, N. 38
(1975). 

/22/ THE COURT OF APPEALS QUOTED THE GROSS RENTAL INCOME RECEIVED
FROM THESE FACILITIES.  BUT SUCH FIGURES BY THEMSELVES ARE IRRELEVANT
SINCE THE RECORD DOES NOT INDICATE THE COST TO CO-OP CITY OF PROVIDING
AND MAINTAINING THE RENTED SPACE. 

/23/ SEE GENERALLY MILLER, COOPERATIVE APARTMENTS:  REAL ESTATE OR
SECURITIES?, 45 B.U.L. REV. 465, 500 (1965). 

/24/ RESPONDENTS URGE US TO ABANDON THE ELEMENT OF PROFITS IN THE
DEFINITION OF SECURITIES AND TO ADOPT THE "RISK CAPITAL"; APPROACH
ARTICULATED BY THE CALIFORNIA SUPREME COURT IN SILVER HILLS COUNTRY
CLUB V. SOBIESKI, 55 CAL. 2D 811, 361 P.2D 906 (1961).  CF. EL KHADEM
V. EQUITY SECURITIES CORP., 494 F.2D 1224 (CA9), CERT. DENIED, 419 U.S.
900 (1974).  SEE GENERALLY COFFEY, THE ECONOMIC REALITIES OF A "
SECURITY":  IS THERE A MORE MEANINGFUL FORMULA?, 18 W. RES. L. REV. 367
(1967); LONG, AN ATTEMPT TO RETURN " INVESTMENT CONTRACTS" TO THE
MAINSTREAM OF SECURITIES REGULATION, 24 OKLA. L. REV. 135 (1971);
HANNAN & THOMAS, THE IMPORTANCE OF ECONOMIC REALITY AND RISK IN
DEFINING FEDERAL SECURITIES, 25 HASTINGS L.J. 219 (1974).  EVEN IF WE
WERE INCLINED TO ADOPT SUCH A "RISK CAPITAL" APPROACH WE WOULD NOT
APPLY IT IN THE PRESENT CASE.  PURCHASERS OF APARTMENTS IN CO-OP CITY
TAKE NO RISK IN ANY SIGNIFICANT SENSE.  IF DISSATISFIED WITH THEIR
APARTMENTS, THEY MAY RECOVER THEIR INITIAL INVESTMENT IN FULL.  SEE N.
5, SUPRA. 

RESPONDENTS ASSERT THAT IF CO-OP CITY BECOMES BANKRUPT THEY STAND TO
LOSE THEIR WHOLE INVESTMENT.  BUT, IN VIEW OF THE FACT THAT THE STATE
HAS FINANCED OVER 92% OF THE COST OF CONSTRUCTION AND CAREFULLY
REGULATES THE DEVELOPMENT AND OPERATION OF THE PROJECT, BANKRUPTCY IN
THE NORMAL SENSE IS AN UNREALISTIC POSSIBILITY.  IN ANY EVENT, THE RISK
OF INSOLVENCY OF AN ONGOING HOUSING COOPERATIVE "DIFFERS) VASTLY" FROM
THE KIND OF RISK OF "FLUCTUATING" VALUE ASSOCIATED WITH SECURITIES
INVESTMENTS.  SEC. V. VARIABLE ANNUITY CO., 359 U.S. 65, 90 - 91 (1959)
(BRENNAN, J., CONCURRING).  SEE HANNAN & THOMAS, SUPRA, AT 242 - 249;
LONG, INTRODUCTION TO SYMPOSIUM:  INTERPRETING THE STATUTORY DEFINITION
OF A SECURITY:  SOME PRAGMATIC CONSIDERATIONS, 6 ST. MAY'S L.J. 96, 126
- 128 (1974). 

/25/ THE SEC HAS FILED AN AMICUS CURIAE BRIEF URGING US TO HOLD THE
FEDERAL SECURITIES LAWS APPLICABLE TO THIS CASE.  TRADITIONALLY THE
VIEWS POF AN AGENCY CHARGED WITH ADMINISTERING THE GOVERNING STATUTE
WOULD BE ENTITLED TO CONSIDERABLE WEIGHT.  SEE, E.G., SAXBE V. BUSTOS,
419 U.S. 65, 74 (1974); INVESTMENT COMPANY INSTITUTE V. CAMP, 401 U.S.
617, 626 - 627 (1971).  BUT IN THIS CASE THE SEC'S POSITION FLATLY
CONTRADICTS WHAT APPEARS TO BE RATHER CAREFUL STATEMENT OF THE
COMMISSION'S VIEWS IN A RECENT RELEASE.  IN RELEASE NO. 33 - 5347, 38
FED. REG. 1735 (JAN. 18, 1973), APPLICABLE TO THE "SALE OF CONDOMINIUM
UNITS, OR OTHER UNITS IN A REAL ESTATE DEVELOPMENT," THE SEC STATED ITS
VIEW THAT ONLY THOSE REAL ESTATE INVESTMENTS THAT ARE "OFFERED AND SOLD
WITH EMPHASIS ON THE ECONOMIC BENEFITS TO THE PURCHASER TO BE DERIVED
FROM THE MANAGERIAL EFFORTS OF THE PROMOTER, OR A THIRD PARTY
DESIGNATED OR ARRANGED FOR BY THE PROMOTER," ARE TO BE CONSIDERED
SECURITIES.  ID., AT 1736.  IN PARTICULAR, THE COMMISSION EXPLAINED
THAT THE SECURITIES ACTS DO NOT APPLY WHEN "COMMERCIAL FACILITIES ARE A
PART OF THE COMMON ELEMENTS OF A RESIDENTIAL PROJECT" IF 

"(A) THE INCOME FROM SUCH FACILITIES IS UED ONLY TO OFFSET COMMON
AREA EXPENSES AND (B) THE OPERATION OF SUCH FACILITIES IS INCIDENTAL TO
THE PROJECT AS A WHOLE AND ARE NOT ESTABLISHED AS A PRIMARY INCOME
SOURCE FOR THE INDIVIDUAL OWNERS OF A CONDOMINIUM OR COOPERATIVE
UNIT."  IBID. 

SEE ALSO SEC REAL ESTATE ADVISORY COMMITTEE REPORT 74 - 91 (1972);
DICKEY & THORPE, FEDERAL SECURITY REGULATION OF CONDOMINIUM OFFERINGS,
19 N.Y.L.F. 473 (1974). 

SEVERAL COMMENTATORS HAVE NOTED THE INCONSISTENCY BETWEEN THE SEC'S
POSITION IN THE ABOVE RELEASE AND THE DECISION BY THE COURT OF APPEALS
IN THIS CASE, WHICH THE SEC NOW SUPPORTS.  SEE BERMAN & STONE, FEDERAL
SECURITIES LAW AND THE SALE OF CONDOMINIUMS, HOMES, AND HOMESITES, 30
BUS.  LAW.  411, 420 - 425 (1975); COMMENT, CONDOMINIUM REGULATION:
BEYOND DISCLOSURE, 123 U. PA. L. REV. 639, 654 - 655 (1975); NOTE,
SUPRA, N. 20, AT 628.  IN VIEW OF THIS UNEXPLAINED CONTRADICTION IN THE
COMMISSION'S POSITION WE ACCORD NO SPECIAL WEIGHT TO ITS VEIWS.  SEE
RELIANCE ELECTRIC CO. V. EMERSON ELECTRIC CO., 404 U.S. 418, 426
(1972); BLUE CHIP STAMPS V. MANOR DRUG STORES, ANTE, AT 746 - 747, N.
10. 

/26/ IT HAS BEEN SUGGESTED THAT THE SALE OF HOUSING DEVELOPMENTS
SUCH AS CONDOMINIUMS AND COOPERATIVES IS IN NEED OF FEDERAL REGULATION
AND THEREFORE THE SECURITIES LAWS SHOULD BE CONSTRUED OR AMENDED TO
REACH THESE TRANSACTIONS.  SEE, E.G., NOTE, FEDERAL SECURITIES
REGULATION OF CONDOMINIUMS: A PURCHASER'S PERSPECTIVE, 62 GEO. L. J.
1403 (1974); NOTE, COOPERATIVE HOUSING CORPORATIONS AND THE FEDERAL
SECURITIES LAWS, 71 COL. L. REV. 118 (1971).  OTHERS HAVE DISAGREED,
CLAIMING THAT THE EXTENSIVE BODY OF REGULATION DEVELOPED OVER MORE THAN
FOUR DECADES UNDER THESE ACTS WOULD BE INAPPROPRIATE AND UNDULY COSTLY
TO THE SELLERS AND BUYERS OF RESIDENTIAL HOUSING.  SEE BERMAN & STONE,
SUPRA, N. 24; NOTE, SUPRA, N. 20.  MOREOVER, EXTENSION OF THE
SECURITIES LAWS TO REAL ESTATE TRANSACTIONS WOULD INVOLVE IMPORTANT
QUESTIONS AS TO THE APPROPRIATE BALANCE BETWEEN STATE AND FEDERAL
RESPONSIBILITY.  THE DETERMINATION OF WHETHER AND IN WHAT MANNER
FEDERAL REGULATION MAY BE REQUIRED FOR HOUSING TRANSACTONS, WHERE THE
CHARACTERISTICS OF AN INVESTMENT IN SECURITIES ARE NOT PRESENT, IS
BETTER LEFT TO THE CONGRESS, WHICH CAN ASSESS BOTH THE COSTS AND
BENEFITS OF ANY SUCH REGULATION.  INDEED ONLY RECENTLY CONGRESS
INSTRUCTED THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT "TO CONDUCT A
FULL AND COMPLETE INVESTIGATION AND STUDY . . . WITH RESPECT TO . . .
THE PROBLEMS, DIFFICULTIES, AND ABUSES OR POTENTIAL ABUSES APPLICABLE
TO CONDOMINIUM AND COOPERATIVE HOUSING."  PUBL L. 93 - 383, SEC. 821,
88 STAT. 740.  SEE ALSO REAL ESTATE SETTLEMENT PROCEDURES ACT OF 1974,
PUB. L. 93 - 533, 88 STAT. 1724; INTERSTATE LAND SALES FULL DISCLOSURE
ACT, 82 STAT. 590, 15 U.S.C. SEC. 1701 - 1720. 

/27/ BESIDES THE SECURITIES ACTS CLAIMS, RESPONDENTS ALSO INCLUDED A
VAGUE AND CONCLUSORY ALLEGATION UNDER 42 U.S.C. SEC. 1983 AGAINST
PETITIONER NEW YORK STATE HOUSING FINANCE AGENCY.  WE AGREE WITH THE
DISTRICT COURT THAT THIS COUNT MUST ALSO BE DISMISSED.  SEE.  N.9,
SUPRA.  THE REMAINING COUNTS IN THE COMPLAINT WERE ALL PREDICATED ON
ALLEGED VIOLATIONS OF STATE LAW, NOT INDEPENDENTLY COGNIZABLE IN
FEDERAL COURT.     MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

I DISSENT.  THE PROPERTY INTERESTS HERE ARE "SECURITIES," IN MY
VIEW, BOTH BECAUSE THEY ARE SHARES OF "STOCK" AND BECAUSE THEY ARE
"INVESTMENT CONTRACTS." 

        I 

BOTH THE SECURITIES ACT OF 1933, 15 U.S.C. SEC. 77B (1), AND THE
SECURITIES EXCHANGE ACT OF 1934, 15 U.S.C. SEC 78C (A) (10), DEFINE THE
TERM "SECURITY" AS INCLUDING, AMONG OTHER THINGS, AN "INVESTMENT
CONTRACT."  THE ESSENTIAL INGREDIENTS OF AN INVESTMENT CONTRACT HAVE
BEEN CLEAR SINCE SEC V. W.J. HOWEY CO., 328 U.S. 293, 301 (1946), HELD
THAT "(THE TEST IS WHETHER THE SCHEME INVOLVES AN INVESTMENT OF MONEY
IN A COMMON ENTERPRISE WITH PROFITS TO COME SOLELY FROM THE EFFORTS OF
OTHERS."  SEE TCHEREPNIN V. KNIGHT, 389 U.S. 332, 338 (1967).  THERE IS
NO DOUBT THAT CO-OP CITY RESIDENTS INVESTED MONEY IN A COMMON
ENTERPRISE; THE ONLY QUESTIONS INVOLVE WHETHER THE INVESTMENT WAS TO BE
PRODUCTIVE OF "PROFITS TO COME SOLELY FROM THE EFFORTS OF OTHERS." 

THE RECORD DISCLOSES LITTLE OF THE ACTIVITIES OF RIVERBAY
CORPORATION, THE OWNER AND OPERATOR OF CO-OP CITY, AS A LESSOR OF
COMMERCIAL AND OFFICE SPACE.  IT DOES APPEAR, HOWEVER, THAT REVENUES
WELL IN EXCESS OF $1 MILLION PER YEAR FLOW INTO THE CORPORATION FROM
SUCH ACTIVITIES, APPENDIX IN COURT OF APPEALS 361A (HEREAFTER APP.), A
FACT NOTED BY THE COURT OF APPEALS.  500 F.2D 1246, 1254 (CA2 1974). 
EVEN AFTER DEDUCTION OF EXPENSES--TAXES ALONE TAKE HALF OF THE GROSS--
THE RESIDUE COULD HARDLY BE DE MINIMIS, EVEN FOR AN OPERATION AS LARGE
AS CO-OP CITY.  THEREIN LIES THE PATENT FALLACY OF THE COURT'S
CONCLUSION THAT THIS ASPECT OF THE CORPORATION'S ACTIVITIES IS
"SPECULATIVE AND INSUBSTANTIAL."  ANTE, AT 856.  THE DISTRICT COURT
RIGHTLY RECOGNIZED THAT MANAGEMENT BY THIRD PARTIES IS ESSENTIAL IN A
PROJECT SO MASSIVE AS CO-OP CITY.  366 F.SUPP.  1117, 1128 (SDNY
1973).  CO-OP CITY RESIDENTS AS STOCKHOLDERS WERE THUS NECESSARILY
BOUND TO RELY ON THE MANAGEMENT OF RIVERBAY CORPORATION TO PRODUCE
INCOME IN THE FORM OF RENTS FROM THE COMMERCIAL AND OFFICE SPACE MADE
AN INTEGRAL PART OF THE PROJECT. 

AS STOCKHOLDERS, CO-OP CITY RESIDENTS ALSO NECESSARILY RELIED ON
CORPORATE MANAGEMENT TO BUILD AND OPERATE THE FACILITY EFFICIENTLY TO
THE END THAT MONTHLY CHARGES WOULD BE MINIMIZED.  THE COURT OF APPEALS
HELD THAT PROFITS WERE INVOLVED PARTLY BECAUSE CO-OP CITY OFFERED
HOUSING AT BARGAIN PRICES.  500 F.2D, AT 1254.  THE COURT SUBSTITUTITES
ITS OWN JUDGMENT IN HOLDING THAT "(THE LOW RENT DERIVES FROM THE
SUBSTANTIAL FINANCIAL SUBSIDIES PROVIDED BY THE STATE OF NEW YORK." 
ANTE, AT 855.  IT IS SIMPLE COMMON SENSE THAT MANAGEMENT EFFICIENCY
NECESSARILY ENTERS INTO THE EQUATION IN THE DETERMINATION OF THE
CHARGES ASSESSED AGAINST RESIDENTS.  BUT EVEN TO THE EXTENT THAT THE
RESIDENT-STOCKHOLDERS DO BENEFIT IN REDUCED CHARGES FROM GOVERNMENT
SUBISDIES, THE BENEFIT IS NOT FOR THIS REASON ANY THE LESS A PROFIT TO
THEM.  THE WELFARE BENEFITS TO WHICH THE COURT REFERS, ANTE, AT 855,
MAY ALSO BE PROFITS, BUT THOSE PROFITS LACK THE ESSENTIAL INGREDIENT OF
PROFITS PRESENT HERE THAT "OME SOLELY FROM THE EFFORTS OF OTHERS." 
HERE THE RESIDENT INVESTORS UTILIZE THE EFFORTS OF OTHERS TO OBTAIN
GOVERNMENT SUBSIDIES.  INVESTORS IN WALL STREET WHO DO THIS EVERY DAY
WILL BE SURPRISED TO LEARN THAT THE BENEFITS SO OBTAINED ARE NOT
CONSIDERED PROFITS. 

THE COURT OF APPEALS ALSO RELIED ON THE TAX DEDUCTIBILITY ACCORDED
TO PORTIONS OF THE MONTHLY CARRYING CHARGES PAID BY CO-OP CITY
RESIDENTS AS A SOURCE OF PROFIT TO THEM 500 F.2D, AT 1254.  THE COURT
REJECTS THIS ARGUMENT WITH THE STATEMENT THAT "(THESE TAX BENEFITS ARE
NOTHING MORE THAN THAT WHICH IS AVAILABLE TO ANY HOMEOWNER.  . . ." 
ANTE, AT 855.  THIS IS TRUE BUT IRRELEVANT TO THE  UESTION WHETHER THEY
CONSTITUTE PROFITS THAT "COME SOLELY FROM THE EFFORTS OF OTHERS."  THE
SPECIAL FEDERAL TAX PROVISION FOR COOPERATIVE OWNERS, 26 U.S.C. SEC.
216 WAS INTENDED "TO PLACE THE TENANT STOCKHOLDERS OF A COOPERATIVE
APARTMENT IN THE SAME POSITION AS THE OWNER OF A DWELLING HOUSE SO FAR
AS DEDUCTIONS FOR INTEREST AND TAXES ARE CONCERNED."  S. REP. NO. 1631,
77TH CONG., 2D SESS., 51 (1942).  THIS TAX BENEFIT CONSTITUTES A PROFIT
BOTH FOR THE INDIVIDUAL HOMEOWNERS AND FOR THE "TENANT STOCKHOLDERS OF
A COOPERATIVE APARTMENT."  THE DIFFERENCE IS THAT THE PROFIT OF THE
INDIVIDUAL HOMEOWNER DOES NOT "COME SOLELY FROM THE EFFORTS OF OTHERS,"
WHEREAS THE PROFIT FROM THIS SOURCE REALIZED BY A RESIDENT OF CO-OP
CITY DOES.  SETTING UP AND OPERATING A CORPORATION SO AS TO TAKE
ADVANTAGE OF SPECIAL TAX PROVISIONS IS A PROJECT REQUIRING SPECIALIZED
SKILLS.  IF THE ARRANGEMENTS GO AWRY THE RESIDENTS CAN FIND THEMSELVES
WITHOUT THE HOPED-FOR TAX ADVANTAGES.  SEE, E.G., ECHSTEIN V. UNITED
STATES, 196 CT. CL. 644, 452 F.2D 1036 (1971).  THUS, THE INVESTORS
MUST DEPEND UPON THE "EFFORTS OF OTHERS,"  HERE CO-OP CITY'S
MANAGEMENT, PROPERLY TO ORGANIZE AND OPERATE THE PROJECT TO REALIZE THE
TAX ADVANTAGE FOR THEM. 

IN SEC VC. C.M. JOINER LEASING CORP., 320 U.S. 344 (1943), THE
INVESTMENT WAS IN OIL LEASES.  IN HOWEY IT INVOLVED CITRUS GROVES. 
THOUGH TAXATION WAS NOT A FACTOR IN THE COURT'S DISPOSITION OF THOSE
CASES, EACH OF THOSE INVESTMENTS WAS OF A TYPE OFFERING TAX ADVANTAGES
AS A PRINCIPAL ATTRACTION TO THE INVESTOR.  CUNNANE, TAX SHELTER
INVESTMENTS AFTER THE 1969 TAX REFORM ACT, 49 TAXES 450 (1971).  IT IS
NO ANSWER THAT THE INDIVIDUAL INVESTOR COULD HAVE OBTAINED THE SAME TAX
ADVANTAGES BY PURCHASING AN ENTIRE CITRUS BUSINESS OR BY BECOMING AN
INDEPENDENT OIL OPERATOR.  HE COULD, BUT IF HE DID HIS PROFITS FROM TAX
ADVANTAGES WOULD NOT THEN "COME SOLELY FROM THE EFFORTS OF OTHERS."  IT
IS ONLY WHEN HE RELIES ON THIRD PARTIES TO PRODUCE THE PROFITS FOR HIM
THAT, AS HERE, THE QUESTION OF INVESTMENT CONTRACT ANALYSIS ARIES. 

BESIDES ITS EXPRESS REJECTION OF EACH OF THE FORMS OF PROFIT FOUND
BY THE COURT OF APPEALS, THE COURT MUST SURPRISE KNOWLEDGEABLE
ECONOMISTS WITH ITS PROPOSITION, ANTE, AT 852, THAT PROFITS CANNOT
ASSUME FORMS OTHER THAN APPRECIATION OF CAPITAL OR PARTICIPATION IN
EARNINGS.  /1/ ALL OF THE VARIETIES OF PROFIT INVOLVED HERE ACCRUE TO
THE RESIDENT-STOCKHOLDERS IN THE FORM OF MONEY SAVED RATHER THAN MONEY
EARNED.  /2/ NOT ONLY WOULD SIMPLE COMMON SENSE TEACH THAT THE TWO ARE
THE SAME, BUT A MORE SOPHISTICATED ECONOMIC ANALYSIS ALSO COMPELS THE
CONCLUSION THAT IN A PRACTICAL WORLD THERE IS NO DIFFERENCE BETWEEN THE
TWO FORMS OF INCOME.  /3/ THE INVESTOR FINDS NO REASON TO DISTINGUISH,
FOR EXAMPLE, BETWEEN TAX SAVINGS AND AFTER-TAX INCOME.  UNDER A STATUTE
HAVING AS ONE OF ITS "CENTRAL PURPOSES" "TO PROTECT INVESTORS,"
TCHEREPNIN, 389 U.S., AT 336, IT IS OBVIOUS THAT THE COURT ERRS IN
DISTINGUSIHING AMONG TYPES OF ECONOMIC INDUCEMENTS WHICH HAVE NO
BEARING ON THE MOTIVES OF INVESTORS.  CONSTRUCTION OF THE STATUTE IN
TERMS OF ECONOMIC REALITY IS MORE FAITHFUL TO ITS "CENTRAL" PURPOSE "TO
PROTECT INVESTORS." 

THERE CAN BE NO DOUBT THAT ONE OF THE INDUCEMENTS TO THE RESIDENT
STOCKHOLDERS TO PURCHASE A CO-OP CITY APARTMENT WAS THE PROSPECT OF
PROFITS IN ONE OR MORE OF THE FORMS I HAVE DISCUSSED.  THE LITERATURE
ENCOURAGING PURCHASE MENTIONED SOME, WHICH IS IMPORTANT, ALTHOUGH NOT
CONCLUSIVE EVIDENCE.  SEE JOINER, 320 U.S., AT 353.  THE INFORMATION
BULLETINS, WHILE NOT MENTIONING INCOME FROM COMMERCIAL AND OFFICE SPACE
AS AN ADVANTAGE OF STOCK OWNERSHIP, DID EMPHASIZE THE "REASONABLE
PRICE" OF THE HOUSING, APP. 166A, 187A, AND THEY ASSERTED THAT "EVERY
EFFORT" WOULD BE MADE TO KEEP MONTHLY CARRYING CHARGES LOW, ID., AT
174A, 194A.  TAX BENEFITS WERE ALSO DISCUSSED AS AN ADVANTAGE OF
OWNERSHIP, THOUGH OF COURSE NO GUARANTEE OF FAVORABLE FEDERAL AND STATE
TAX TREATMENT WAS MADE.  ID., AT 175A, 195. 

I DO NOT DENY THAT THERE ARE SOME LIMITS TO THE BROAD STATUTORY
DEFINITION OF A SECURITY, AND THE COURT'S DISTINCTION BETWEEN
SECURITIES AND CONSUMER GOODS IS NOT FRIVOLOUS.  ANTE, AT 858.  BUT THE
DISTINCTION IS NOT USEFUL IN THE RESOLUTON OF THE QUESTION BEFORE US.
OF COURSE, THE PURCHASE OF THE STOCK TO GET AN APARTMENT INVOLVES AN
ELEMENT OF CONSUMPTION, BUT IT ALSO INVOLVES AN ELEMENT OF INVESTMENT. 
THE VARIABLE ANNUITY CONTRACT CONSIDERED IN SEC V. VARIABLE ANNUITY
CO., 359 U.S. 65 (1959), PRESENTED A NOT IRRELEVANT ANALOGOUS
SITUATION.  WHAT WAS PURCHASED, AFTER ALL, WAS EXPRESSLY LABELED
"STOCK."  IN ANY EVENT, WHAT WAS PURCHASED CONSTITUTED AN "INVESTMENT
CONTRACT" WITHIN HOWEY, FOR RESIDENT-STOCKHOLDERS OF CO-O CITY INVESTED
"IN A COMMON ENTERPRISE WITH PROFITS TO COME SOLELY FROM THE EFFORTS OF
OTHERS."  THEY THEREFORE WERE PURCHASING SECURITIES WITHIN THE PURVIEW
OF THE SECURITIES ACT OF 1933 AND THE SECURITIES EXCHANGE ACT OF 1934. 

        II 

MOREOVER, BOTH, STATUTES DEFINE THE TERM "SECURITY" TO INCLUDE
"STOCK."  THEREFORE, COVERAGE UNDER THE STATUTES IS CLEAR UNDER THE
COURT'S HOLDING IN JOINER THAT "(INSTRUMENTS MAY BE INCLUDED WITHIN ANY
OF THESE DEFINITIONS, AS MATTER OF LAW OF ON THEIR FACE THEY ANSWER THE
NAME OR DESCRIPTION."  320 U.S., AT 351; SEE TCHEREPNIN, 389 U.S., AT
339.  " SECURITY" WAS BROADLY DEFINED WITH THE EXPLICITY OBJECT OF
INCLUDING "THE MANY TYPES OF INSTRUMENTS THAT IN OUR COMMERCIAL WORLD
FALL WITHIN THE ORDINARY CONCEPT OF A SECURITY," H.R. REP. NO. 85, 73D
CONG., 1ST SESS., 11 (1933).  STOCK IS THEREFORE INCLUDED BECAUSE
INSTRUMENTS "SUCH AS NOTES, BONDS, AND STOCKS, ARE PRETTY MUCH
STANDARDIZED AND THE NAME ALONE CARRIES WELL-SETTLED MEANING."  JOINER,
320 U.S., AT 351.  EVEN IF THIS PRINCIPLE NEVERTHELESS ALLOWS ROOM FOR
EXCEPTION OF SOME INSTRUMENTS LABELED "STOCK," THE COURT'S
JUSTIFICATION FOR EXCEPTING THE STOCK INVOLVED IN THIS CASE IS
SINGULARLY UNPERSUASIVE.  THE COURT STATES THAT "(COMMON SENSE SUGGESTS
THAT PEOPLE WHO INTEND TO ACQUIRE ONLY A RESIDENTIAL APARTMENT IN A
STATE-SUBSIDIZED COOPERATIVE, FOR THEIR PERSONAL USE, ARE NOT LIKELY TO
BELIEVE THAT IN REALITY THEY ARE PURCHASING INVESTMENT SECURITIES
SIMPLY BECAUSE THE TRANSACTION IS EVIDENCED BY SOMETHING CALLED A SHARE
OF STOCK."  ANTE, AT 851.  BUT EVEN INFORMED COMMENTATORS HAVE
EXPRESSED MISGIVINGS ABOUT THIS QUESTION.  /4/ THUS THE COURT'S
JUSTIFICATION DEPARTS UNACCEPTABLY FROM THE PRINCIPLE OF JOINER THAT
"(IN THE ENFORCEMENT OF AN ACT SUCH AS THIS IT IS NOT INAPPRPOPRIATE
THAT PROMOTERS' OFFERINGS BE JUDGED AS BEING WHAT THEY WERE REPRESENTED
TO BE."  320 U.S.,AT 353. 

WHILE THE ABSENCE IN THE CASE OF CO-OP CITY STOCK OF SOME FEATURES
NORMALLY ASSOCIATED WITH STOCK IS A RELEVANT CONSIDERATION, THE
PRESENCE OF THE ATTRIBUTES THAT LED ME TO CONCLUDE THAT THIS STOCK
CONSTITUTES AN "INVESTMENT CONTRACT," LEADS ME ALSO TO CONCLUDE THAT IT
IS A "STOCK" FOR PURPOSES OF THE TWO STATUTES.  CF. AFFILIATED UTE
CITIZENS V. UNITED STATES, 406 U.S. 128 (1972). 

IN SUM, I CONCLUDE THAT THE INTERESTS PURCHASED BY THE STOCKHOLDERS
HERE WERE "SECURITIES" BOTH BECAUSE THEY WERE "STOCK" AND BECAUSE THEY
WERE "INVESTMENT CONTRACTS."  /5/ IN MY VIEW THEREFORE THE COURT OF
APPEALS CORRECTLY HELD THAT THE DISTRICT COURT ERRED IN DISMISSING THIS
SUIT.  /6/

        III 

AT ORAL ARGUMENT, PETITIONER UNITED HOUSING FOUNDATION CONTENDED
STRENUOUSLY THAT COMPREHENSIVE STATE PARTICIPATION AND REGULATION OF
THE CONSTRUCTION AND OPERATION OF CO-OP CITY CONSTITUTED RIVERBAY
CORPORATION NOT A CAPITALISTIC ENTERPRISE BUT A BENEFICIAL PUBLIC
HOUSING ENTERPRISE, CREATED BY A PARTNERSHIP OF PUBLIC AND PRIVATE
GROUPS FOR THE BENEFIT OF PEOPLE OF MODES INCOMES.  I NEED NOT DISAGREE
WITH THIS CHARACTERIZATION TO CONCLUDE THAT NEVERTHELESS THERE IS A
ROLE FOR THE FEDERAL STATUTES TO PLAY IN AVOIDING THE DANGER OF FRAUD
AND OTHER EVILS IN THE RAISING OF THE MASSIVE SUMS THE PROJECT
INVOLVED.  SEE SEC V. CAPITAL GAINS RESEARCH BUREAU, 375 U.S. 180, 195
(1963); H.R. REP. NO. 85, 73D CONG., 1ST SESS., 2 - 3 (1933).  NO DOUBT
NEW YORK'S INTENSIVE REGULATION ALSO HELPS AVOID THOSE EVILS.  SEE N.Y.
PRIV.  FIN LAW.  BUT CONGRESS CONTEMPLATED CONCURRENT STATE AND FEDERAL
REGULATION IN ENACTING THE SECURITIES LAWS.  SEC V. VARIABLE ANNUITY
CO., 359 U.S., AT 75 (CONCURRING OPINION), AND THEREFORE THE EXISTENCE
OF STATE REGULATION DOES NOT AND CANNOT BE A REASON FOR EXCLUDING
APPROPRIATE APPLICATION OF THE FEDERAL STATUTES.  INDEED, THE RESIDENT
STOCKHOLDER INVESTORS OF CO-OP CITY ARE PARTICULARLY ENTITLED TO THE
FEDERAL PROTECTION.  THE DISTRICT COURT PROPERLY OBSE VED: 

     "(IF EVER THERE WAS A GROUP OF PEOPLE WHO NEED AND DESERVE
FULL

  AND CAREFUL DISCLOSURE IN CONNECTION WITH PROPOSALS FOR THE USE

  OF THEIR FUNDS, IT IS THIS TYPE OF GROUP.  . . . THE HOUSING

SELECTION DECISION IS A CRITICAL ONE IN THEIR LIVES.  THE COST OF

  HOUSING DEMANDS A GOOD PERCENTAGE OF THEIR INCOMES.  THEIR

  SAVINGS ARE MOST LIKELY TO BE MINIMAL, AND THEY PROBABLY DON'T

  HAVE LAWYERS OR ACCOUNTANTS TO GUIDE THEM.  FURTHER, THEY ARE

  PEOPLE LIKELY TO PUT A GREAT DEAL OF CREDENCE IN STATEMENTS MADE

  WITH RESPECT TO AN OFFERING BY REPUTABLE CIVIC GROUPS AND LABOR

  UNIONS, PARTICULARLY WHEN THE PROPOSAL IS STAMPED WITH THE

  IMPRIMATUR OF THE STATE."  366 F.SUPP., AT 1125. 

I PART FOR THE DISTRICT COURT IN CONCLUDING HOWEVER THAT INVESTORS
NOT ONLY SHOULD BE PROTECTED BUT, UNDER MY READING OF THE STATUTES, ARE
PROTECTED BY THE SECURITIES LAWS.  A DIFFERENT, PERHAPS BETTER, FORM OF
REDRESS CAN AND WILL BE DEVISED FOR THIS KIND OF INVESTMENT, BUT UNTIL
IT IS THESE INVESTORS ARE NOT TO BE DENIED WHAT THE FEDERAL STATUTES
PLAINLY ALLOW THEM.  SEE NOTE, COOPERATIVE HOUSING CORPORATIONS AND THE
FEDERAL SECURITIES LAWS, 71 COL. L. REV. 118 (1971).  THE SEC, THOUGH
PERHAPS TARDILY, HAS COME TO THE VIEW THAT THESE HOUSING CORPORATIONS
FALL WITHIN ITS REGULATORY AUTHORITY BECAUSE THE KIND OF INVESTMENT
INVOLVED IS A "SECURITY" UNDER THE STATUTES.  I WHOLLY AGREE.  I WOULD
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS.     /1/ SEE P. SAMUELSON,
ECONOMICS 618 - 626 (9TH ED. 1973). 

/2/ APPARENTLY THERE IS AT LEAST A POSSIBILITY THAT DIVIDENDS COULD
BE PAID TO SHAREHOLDERS, BUT THESE WOULD REALLY JUST BE PARTIAL REFUNDS
OF MONEY ALREADY PAID IN WHICH WAS NOT NEEDED. 

/3/ SEE, E.G., P. SAMUELSON, SUPRA, N 1, AT 435; COASE, THE PROBLEM
OF SOCIAL COST, 3 J. LAW & ECON.  1 (1960). 

/4/ SEE, E.G., 1 L. LOSS, SECURITIES REGULATION 492 - 493 (2D ED.
1961).     /5/ ACCORDINGLY, I HAVE NO OCCASION TO EXAMINE THE "RISK
CAPITAL"  APPROACH OF SILVER HILLS COUNTRY CLUB V. SOBIESKI, 55 CAL. 2D
811, 361 P.2D 906 (1961), TO DETERMINE WHETHER THAT WOULD LEAD TO THE
SAME RESULT. 

/6/ PETITIONERS IN NO. 74 - 647, THE STATE OF NEW YORK AND THE NEW
YORK STATE HOUSING FINANCE AGENCY, ARGUE THAT RESPONDENTS' SUIT AGAINST
THEM IS BARRED BY THE ELEVENTH AMENDMENT.  THE COURT FINDS IT
UNNECESSARY TO DEAL WITH THIS CONTENTION, BUT BY CONCLUSION REQUIRES
THAT I ANSWER THE ELEVENTH AMENDMENT DEFENSE.  THE COURT OF APPEALS
FOUND NO ELEVENTH AMENDMENT BAR HERE, AND I AM IN AGREEMENT WITH THIS
RESULT. 

THE HOUSING FINANCE AGENCY IS A "PUBLIC BENEFIT CORPORATION" UNDER
NEW YORK LAW, N.Y. PRIV.  HOUS.  FIN. LAW SEC. 43 (1) (1962 AND SUPP.
1974 - 1975), EMPOWERED "(TO SUE AND BE SUED," SEC. 44 (1).  THE AGENCY
IS AUTHORIZED TO ACCEPT FUNDS FROM THE STATE, THE FEDERAL GOVERNEMENT,
OR "ANY OTHER SOURCE," SEC. 44 (16), BUT IT ALSO IS EMPOWERED TO ISSUE
NOTES, BOUNDS, OR OTHER OBLIGATIONS TO OBTAIN FINANCING, SEC. 44(7) AND
46.  SIGNIFICANTLY, THE STATE IS NOT LIABLE ON THE AGENCY'S NOTES OR
BONDS, AND SUCH OBLIGATIONS DO NOT CONSTITUTE DEBTS OF THE STATE.  SEC.
46(8).  THE AGENCY IS THEREFORE NOT AN "ALTER EGO" OF THE STATE; RATHER
IT IS AN INDEPENDENT BODY NOT ENTITLED TO ASSERT THE ELEVENTH
AMENDMENT.  SEE COWLES V. MERCER COUNTY, 7 WALL.  118 (1869); H. HART &
H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 690 (2D ED.
1973).  COMPARE MATHERSON V. LONG ISLAND STATE PARK COMM'N, 442 F.2D
566 (CA2 1971), AND ZEIDNER V. WULFORST, 197 F.SUPP.  23, 25 (EDNY
1961), WITH WHITTEN V. STATE UNIVERSITY CONSTRUCTION FUND, 493 F.2D 177
(CA1 1974), AND CHARLES SIMKIN & SONS, INC. V. STATE UNIVERSITY
CONSTRUCTION FUND, 352 F.SUPP.  177 (SDNY), AFF'D MEM., 486 F.2D 1393
(CA2 1973). 

THE STATE OF NEW YORK, UNLIKE THE AGENCY, MAY ASSERT THE ELEVENTH
AMENDMENT, BUT IT HAS CONSENTED TO SUIT.  " WITH REGARD TO DUTIES AND
LIABILITIES ARISING OUT OF THIS ARTICLE THE STATE, THE COMMISSIONER OR
THE SUPERVISING AGENCY MAY BE SUED IN THE SAME MANNER AS A PRIVATE
PERSON."  N.Y. PRIV.  HOUS.  FIN.  LAW SEC. 32 (5) (EMPHASIS ADDED). 
TO BE SURE, STATE WAIVER STATUTES ARE TO BE STRICTLY CONSTRUED, AND
THEY DO NOT NECESSARILY INDICATE CONSENT TO SUIT IN FEDERAL COURT.  SEE
KENNECOTT COPPER CORP. V. STATE TAX COMM'N, 327 U.S. 573 (1946); FORD
MOTOR CO. V. DEPARTMENT OF TREASURY, 323 U.S. 459 (1945); CREAT
NORTHERN LIFE INS. CO. V. READ, 322 U.S. 47 (1944).  NEVERTHELESS, THE
LANGUAGE USED IN SEC 32 (5) IS IN MY VIEW SUFFICIENTLY BROAD TO PERMIT
SUIT IN BOTH STATE AND FEDERAL CORUTS. 

SIMON H. RIFKIND ARGUED THE CAUSE FOR PETITIONERS IN NO. 74 - 157. 
WITH HIM ON THE BRIEFS WAS MARTIN LONDON.  DANIEL M. COHEN, ASSISTANT
ATTORNEY GENERAL OF NEW YORK, ARGUED THE CAUSE FOR PETITIONER IN NO. 74
- 647.  WITH HIM ON THE BRIEFS WERE LOUIS J. LEFKOWITZ, ATTORNEY
GENERAL, AND SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL. 

LOUIS NIZER ARGUED THE CAUSE FOR RESPONDENTS IN BOTH CASES.  WITH
HIM ON THE BRIEF WERE GEORGE BERGER, JAY F. GORDON, IRA B. ROSE, AND
JANET P. KANE. 

PAUL GONSON ARGUED THE CAUSE FOR THE SECURITIES AND EXCHANGE
COMMISSION AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL BORK, LAWRENCE E. NERHEIM, AND RICHARD E.
NATHAN. 

(WILLIAM J. BROWN, ATTORNEY GENERAL, WILLIAM G. COMPTON, ASSISTANT
ATTORNEY GENERAL, JON M. SEBALY, SPECIAL ASSISTANT ATTORNEY GENERAL,
AND MICHAEL R. MERZ FILED A BRIEF FOR THE STATE OF OHIO AS AMICUS
CURIAE URGING REVERSAL.) 
..END :







INTERCOUNTY CONSTRUCTION CORP V. WALTER, 422 US 1 


       INTERCOUNTY CONSTRUCTION CORP., ET AL. V. WALTER, DEPUTY

           COMMISSIONER, BUREAU OF EMPLOYEES' COMPENSATION, U.S.

           DEPARTMENT OF LABOR, ET AL.

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 74 - 362.  ARGUED APRIL 23, 1975--DECIDED JUNE 16,
1975;

       163 U.S. APP. D.C. 147, 500 F.2D 815, AFFIRMED. 


PROVIDES THAT THE RIGHT TO COMPENSATION FOR DISABILITY UNDER THE ACT
SHALL BE BARRED UNLESS A CLAIM THEREFOR IS FILED WITHIN ONE YEAR AFTER
THE INJURY.  SECTION 22 PROVIDES THAT, UPON HIS OWN INITIATIVE OR UPON
THE APPLICATION OF ANY PARTY IN INTEREST, ON THE GROUND OF A CHANGE IN
CONDITIONS OR BECAUSE OF A MISTAKE IN HIS DETERMINATION OF FACT, THE
DEPUTY COMMISSIONER OF THE BUREAU OF EMPLOYEES' COMPENSATION (THE
AGENCY CHARGED WITH ADMINISTERING THE ACT) MAY, "AT ANY TIME PRIOR TO
ONE YEAR AFTER THE DATE OF THE LAST PAYMENT OF COMPENSATION, WHETHER OR
NOT A COMPENSATION ORDER HAS BEEN ISSUED, OR AT ANY TIME PRIOR TO ONE
YEAR AFTER THE REJECTION OF A CLAIM," REVIEW A COMPENSATION CASE AND
ISSUE A "NEW COMPENSATION ORDER" WHICH MAY TERMINATE, CONTINUE,
REINSTATE, INCREASE, OR DECREASE SUCH COMPENSATION, OR AWARD
COMPENSATION.  A CLAIMANT, WHO WAS INJURED IN 1960 WHILE WORKING FOR
PETITIONER EMPLOYER, FILED A CLAIM FOR TOTAL PERMANENT DISABILITY
WITHIN SEC. 13'S ONE-YEAR STATUTE OF LIMITATIONS.  PETITIONER INSURANCE
CARRIER, IN ADVANCE OF AN AWARD BY THE DEPUTY COMMISSIONER, FIRST PAID
THE WEEKLY AMOUNT FOR TOTAL DISABILITY THOUGH DENYING THE EXTENT OF
DISABILITY, BUT IN 1965 FILED NOTICE THAT IT WAS CONTESTING THE EXTENT
OF DISABILITY AND WAS REDUCING THE WEEKLY COMPENSATION TO THE AMOUNT
FOR 50% TEMPORARY DISABILITY, AND IN 1968 STOPPED PAYMENT OF
COMPENSATION AFTER REACHING THE MAXIMUM OF ITS LIABILITY FOR ANY
CONDITION OTHER THAN PERMANENT DISABILITY OR DEATH.  IN 1970, TWO YEARS
AFTER HIS LAST RECEIPT OF A VOLUNTARY COMPENSATION PAYMENT, THE
CLAIMANT REQUESTED A HEARING ON HIS CLAIM FOR PERMANENT DISABILITY,
THIS BEING THE FIRST REQUESTED ACTION TO ADJUDICATE THE MERITS OF THE
CLAIM BY EITHER HIM OR THE CARRIER IN THE 10 YEARS FOLLOWING THE FILING
OF THE CLAIM, AND NO ORDER OR AWARD HAVING BEEN ENTERED DURING THIS
PERIOD.  RESPONDENT DEPUTY COMMISSIONER THEN ENTERED AN AWARD FOR
PERMANENT TOTAL DISABILITY, AND PETITIONERS BROUGHT SUIT TO ENJOIN ITS
ENFORCEMENT.  THE DISTRICT COURT HELD THAT SEC. 22 BARRED THE CLAIM,
BUT THE COURT OF APPEALS REVERSED.  HELD:  WHILE THE LANGUAGE OF SEC.
22 IS AMBIGUOUS, THE SECTION'S LEGISLATIVE HISTORY, INCLUDING THE
HISTORY OF THE AMENDMENT INSERTING THE PHRASE "WHETHER OR NOT A
COMPENSATION ORDER HAS BEEN ISSUED," SHOWS THAT THE SECTION'S ONE-YEAR
TIME LIMIT WAS MEANT TO APPLY ONLY TO THE DEPUTY COMMISSIONER'S POWER
TO MODIFY PREVIOUSLY ENTERED ORDERS, AND THAT THEREFORE THE SECTION
DOES NOT BAR CONSIDERATION OF A CLAIM TIMELY FILED UNDER SEC. 13, WHICH
HAS NOT BEEN THE SUBJECT OF PRIOR ACTION BY THE DEPUTY COMMISSIONER,
AND WITH RESPECT TO WHICH THE DEPUTY COMMISSIONER TOOK NO ACTION UNTIL
MORE THAN ONE YEAR AFTER THE CLAIMANT'S LAST RECEIPT OF A VOLUNTARY
COMPENSATION PAYMENT.  TAKEN IN ITS HISTORICAL AND STATUTORY CONTEXT,
THE PHRASE "WHETHER OR NOT A COMPENSATION ORDER HAS BEEN ISSUED" IS
PROPERLY INTERPRETED TO MEAN MERELY THAT THE ONE-YEAR TIME LIMIT
IMPOSED ON THE DEPUTY COMMISSIONER'S POWER TO MODIFY EXISTING ORDERS
RUNS FROM THE DATE OF FINAL PAYMENT OF COMPENSATION EVEN IF THE ORDER
SOUGHT TO BE MODIFIED IS ACTUALLY ENTERED ONLY AFTER SUCH DATE.  PP. 6
12. 

REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

ACT, 44 STAT. 1432, 33 U.S.C. SEC. 913, PROVIDED:  " THE RIGHT TO
COMPENSATION FOR DISABILITY UNDER THIS CHAPTER SHALL BE BARRED UNLESS A
CLAIM THEREFOR IS FILED WITHIN ONE YEAR AFTER THE INJURY."  WE MUST
DECIDE IN THIS CASE WHETHER SEC. 22 OF THE SAME ACT, AS AMENDED, 33
U.S.C. SEC. 922, BARS CONSIDERATION OF A CLAIM TIMELY FILED UNDER SEC.
13, WHICH HAS NOT BEEN THE SUBJECT OF AN ORDER BY THE DEPUTY
COMMISSIONER WITHIN ONE YEAR AFTER THE CESSATION OF VOLUNTARY
COMPENSATION PAYMENTS. 

PETITIONERS IN THE INSTANT CASE ARE INTERCOUNTY CONSTRUCTION CORP.,
AN EMPLOYER, AND HARTFORD ACCIDENT AND INDEMNITY CO., ITS INSURANCE
CARRIER.  RESPONDENTS ARE NOAH C. A. WALTER, A DEPUTY COMMISSIONER OF
THE BUREAU OF EMPLOYEES' COMPENSATION WHICH IS CHARGED WITH
ADMINISTRATION OF THE ACT, /1/ AND MARY JONES, AN INTERVENOR BELOW WHO
IS THE PERSONAL REPRESENTATIVE OF CHARLES JONES, AN EMPLOYEE CLAIMANT
UNDER THE ACT.  CLAIMANT WAS INJURED IN 1960 WHILE WORKING FOR THE
EMPLOYER IN THE DISTRICT OF COLUMBIA.  /2/ SHORTLY THEREAFTER, WELL
WITHIN THE ONE-YEAR STATUTE OF LIMITATIONS ESTABLISHED BY SEC. 13 OF
THE ACT, /3/ HE FILED A CLAIM FOR TOTAL PERMANENT DISABILITY WITH THE
BUREAU OF EMPLOYEES' COMPENSATION.  THE INSURANCE CARRIER, ADMITTING
CLAIMANT'S INJURY IN THE COURSE OF EMPLOYMENT WHILE DENYING PERMANENT
DISABILITY TO THE EXTENT STATED IN THE CLAIM, FILED NOTICE THAT IT HAD
BEGUN PAYMENT OF $54 PER WEEK, THE AMOUNT PAYABLE FOR TOTAL DISABILITY,
IN ADVANCE OF AN AWARD BY THE DEPUTY COMMISSIONER.  /4/ 

IN 1965, THE CARRIER FILED NOTICE THAT IT WAS CONTROVERTING THE
PENDING CLAIM ON THE GROUND, INTER ALIA, OF EXTENT OF DISABILITY AND
THAT IT WAS REDUCING CLAIMANT'S WEEKLY COMPENSATION TO $27 PER WEEK,
THE RATE FOR 50% TEMPORARY DISABILITY.  IN 1966 A CLAIMS EXAMINER FROM
THE BUREAU HELD A HEARING ON THE PENDING CLAIM FOR TOTAL PERMANENT
DISABILITY BENEFITS BUT THE HEARING WAS ADJOURNED WITHOUT ACTION ON THE
CLAIM.  ON JANUARY 23, 1968, THE CARRIER STOPPED PAYMENT OF
COMPENSATION TO THE CLAIMANT SINCE ITS PAYMENTS TO CLAIMANT TOTALED
$17,280, ITS MAXIMUM LIABILITY UNDER THE ACT AT THE TIME FOR ANY
CONDITION OTHER THAN PERMANENT TOTAL DISABILITY OR DEATH.  ON FEBRUARY
11, 1970, TWO YEARS AFTER HIS LAST RECEIPT OF A VOLUNTARY PAYMENT OF
COMPENSATION FROM THE CARRIER, CLAIMANT REQUESTED A HEARING ON HIS
PREVIOUSLY FILED CLAIM FOR TOTAL PERMANENT DISABILITY.  ALTHOUGH THE
CLAIM HAD BEEN PENDING SINCE ITS TIMELY FILING IN 1960, NEITHER THE
CARRIER NOR THE CLAIMANT HAD REQUESTED ACTION BY THE BUREAU IN THE
INTERVENING 10 YEARS TO ADJUDICATE ITS MERITS AND NO ORDER OR AWARD HAD
BEEN ENTERED DURING THIS PERIOD RESOLVING IT.  /5/ 

DEPUTY COMMISSIONER WALTER, REVERSING HIS OWN INITIAL DETERMINATION
THAT THE CLAIM WAS TIME BARRED UNDER SEC. 22 OF THE ACT, CONCLUDED THAT
SEC. 22 WAS NOT APPLICABLE TO THIS CLAIM AND ENTERED AN ORDER AWARDING
CLAIMANT COMPENSATION FOR PERMANENT TOTAL DISABILITY.  PETITIONERS THEN
BROUGHT THIS SUIT UNDER 33 U.S.C. SEC. 921 (B) AGAINST RESPONDENT
WALTER TO ENJOIN ENFORCEMENT OF THE AWARD.  THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA GRANTED SUMMARY JUDGMENT FOR THE
PETITIONERS, HOLDING THAT SEC. 22 OF THE ACT BARRED THE CLAIM.  /6/ ON
APPEAL, THE UNITED STATES COURT OF APPEALS FOR THE THE DISTRICT OF
COLUMBIA CIRCUIT REVERSED, HOLDING THAT SEC. 22 OF THE ACT, APPLICABLE
ONLY TO THE POWER OF THE DEPUTY COMMISSIONER TO MODIFY PRIOR ODERS,
ERECTED NO BARRIER TO CONSIDERATION OF CLAIMS WHICH HAD NOT BEEN THE
SUBJECT OF A PRIOR ORDER BY THE DEPUTY COMMISSIONER.  /7/ 

BECAUSE OF THE CONFLICT BETWEEN THE HOLDING OF THE COURT OF APPEALS
IN THIS CASE AND THAT OF THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT IN STRACHAN SHIPPING CO. V. HOLLIS, 460 F.2D 1108, CERT.
DENIED SUBNOM.  LEWIS V. STRACHAN SHIPPING CO., 409 U.S. 887 (1972), WE
GRANTED CERTIORARI.  419 U.S. 1119 (1975). 


     " MODIFICATION OF AWARDS 

     " UPON HIS OWN INITIATIVE, OR UPON THE APPLICATION OF ANY
PARTY

  IN INTEREST, ON THE GROUND OF A CHANGE IN CONDITIONS OR BECAUSE

  OF A MISTAKE IN A DETERMINATION OF FACT BY THE DEPUTY

  COMMISSIONER, THE DEPUTY COMMISSIONER MAY, AT ANY TIME PRIOR TO

  ONE YEAR AFTER THE DATE OF THE LAST PAYMENT OF COMPENSATION,

  WHETHER OR NOT A COMPENSATION ORDER HAS BEEN ISSUED, OR AT ANY

  TIME PRIOR TO ONE YEAR AFTER THE REJECTION OF A CLAIM, REVIEW A

  COMPENSATION CASE IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN

  RESPECT OF CLAIMS IN SECTION 919 OF THIS TITLE, AND IN ACCORDANCE

  WITH SUCH SECTION ISSUE A NEW COMPENSATION ORDER WHICH MAY

  TERMINATE, CONTINUE, REINSTATE, INCREASE, OR DECREASE SUCH

  COMPENSATION, OR AWARD COMPENSATION.  SUCH NEW ORDER SHALL NOT

  AFFECT ANY COMPENSATION PREVIOUSLY PAID, EXCEPT THAT AN AWARD

  INCREASING THE COMPENSATION RATE MAY BE MADE EFFECTIVE FROM THE

  DATE OF THE INJURY, AND IF ANY PART OF THE COMPENSATION DUE OR TO

  BECOME DUE IS UNPAID, AN AWARD DECREASING THE COMPENSATION RATE

  MAY BE MADE EFFECTIVE FROM THE DATE OF THE INJURY, AND ANY

PAYMENT MADE PRIOR THERETO IN EXCESS OF SUCH DECREASED RATE SHALL

  BE DEDUCTED FROM ANY UNPAID COMPENSATION, IN SUCH MANNER AND BY

  SUCH METHOD AS MAY BE DETERMINED BY THE DEPUTY COMMISSIONER WITH

  THE APPROVAL OF THE SECRETARY." 

PETITIONERS URGE, AND THE FIFTH CIRCUIT IN STRACHAN SHIPPING CO.
HELD, THAT THIS PROVISION SUPERIMPOSES ON THE EXPRESS STATUTE OF
LIMITATIONS CONTAINED IN SEC. 13 OF THE ACT, PROVIDING A TIME PERIOD
FOR THE FILING OF CLAIMS, AN ADDITIONAL LIMITATIONS PERIOD REQUIRING
ACTION BY THE DEPUTY COMMISSIONER ON PENDING CLAIMS WITHIN ONE YEAR
AFTER THE DATE OF THE LAST VOLUNTARY PAYMENT OF COMPENSATION WHERE SUCH
PAYMENTS HAVE BEEN MADE.  IN THEIR VIEW, SINCE NO ACTION WAS TAKEN ON
THE PENDING CLAIM IN THE INSTANT CASE UNTIL MORE THAN ONE YEAR AFTER
THE CLAIMANT'S LAST RECEIPT OF A VOLUNTARY COMPENSATION PAYMENT, THE
CLAIM WAS TIME BARRED UNDER SEC. 22. 

IN CONTRAST, RESPONDENTS ARGUE, AND THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT HELD, THAT SEC. 22 IS APPLICABLE ONLY TO
THE POWER OF THE DEPUTY COMMISSIONER TO MODIFY PRIOR ORDERS AND AWARDS
ISSUED BY HIM.  IN THEIR VIEW, IT HAS NO APPLICATION TO TIMELY FILED
CLAIMS ON WHICH NO PRIOR ACTION HAS BEEN TAKEN BY THE DEPUTY
COMMISSIONER.  IN THIS CASE THEY SAY THAT SINCE THE TIMELY FILED AND
STILL-PENDING 1960 CLAIM HAD NEVER BEEN THE SUBJECT OF ACTION BY THE
DEPUTY COMMISSIONER PRIOR TO THE ORDER HERE IN ISSUE, SEC. 22 HAS NO
APPLICATION TO IT. 

WE AGREE WITH THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT THAT SEC. 22 SPEAKS AMBIGUOUSLY TO THE QUESTION BEFORE US.  THE
STATUTORY REFERENCE TO "NEW ORDER," "NEW COMPENSATION ORDER," AND "THE
REJECTION OF A CLAIM," AND THE LIMITATION OF THE GRANTED AUTHORITY TO
"A CHANGE IN CONDITIONS OR BECAUSE OF A MISTAKE IN A DETERMINATION OF
FACT BY THE DEPUTY COMMISSIONER" SUPPORT AN INTERPRETATION OF THE
DEPUTY COMMISSIONER TO MODIFY PREVIOUSLY ENTERED ORDERS.  SUCH AN
INTERPRETATION WOULD MAKE THE SECTION INAPPLICABLE TO THE AUTHORITY OF
THE DEPUTY COMMISSIONER TO ENTER AN INITIAL ORDER WITH RESPECT TO A
CLAIM TIMELY FILED.  ON THE OTHER HAND, THE LANGUAGE "WHETHER OR NOT A
COMPENSATION ORDER HAS BEEN ISSUED" POINTS TO THE APPLICABILITY OF THE
THOUGH NOT THE SUBJECT OF ANY PRIOR ORDER BY THE DEPUTY COMMISSIONER. 
STRACHAN SHIPPING CO. V. HOLLIS, 460 F.2D, AT 1116.  THIS PHRASE MIGHT
ALSO MERELY MEAN, WHEN READ IN CONTEXT, THAT THE TIME LIMIT ESTABLISHED
BY THIS PROVISION, APPLICABLE ONLY TO THE MODIFICATION OF PREVIOUSLY
ENTERED ORDERS, RUNS FROM THE DATE OF THE LAST VOLUNTARY PAYMENT EVEN
THOUGH THE ORDER SOUGHT TO BE MODIFIED IS ENTERED AFTER RECEIPT OF THE
LAST VOLUNTARY PAYMENT.  163 U.S. APP. C. D., AT 150, 500 F.2D, AT 818;
STRACHAN SHIPPING CO. V. HOLLIS, SUPRA, AT 1117 (AINSWORTH, J.,
DISSENTING).  THESE CONFLICTING INDICIA ARE NOT COMPLETELY RECONCILABLE
IF THE LANGUAGE IN THE STATUTE IS CONSIDERED ALONE, AND SO WE MUST
RESORT TO THE LEGISLATIVE HISTORY OF THE PROVISION. 

AND HABOR WORKERS' COMPENSATION ACT PASSED IN 1927.  44 STAT. 1424 -
144L.  AS PETITIONERS CONCEDE, THE PROVISION AS ORIGINALLY DRAFTED
APPLIED ONLY TO THE MODIFICATION OF ORDERS PREVIOUSLY ENTERED BY THE
DEPUTY COMMISSIONER:

        " MODIFICATION OF AWARDS 

     " SEC. 22.  UPON HIS OWN INITIATIVE, OR UPON APPLICATION OF
ANY

  PARTY IN INTEREST, ON THE GROUND OF A CHANGE IN CONDITIONS, THE

  DEPUTY COMMISSIONER MAY AT ANY TIME DURING THE TERM OF AN AWARD

  AND AFTER THE COMPENSATION ORDER IN RESPECT OF SUCH AWARD HAS

  BECOME FINAL, REVIEW SUCH ORDER IN ACCORDANCE WITH THE PROCEDURE

  PRESCRIBED IN RESPECT OF CLAIMS IN SECTION 19, AND IN ACCORDANCE

  WITH SUCH SECTION ISSUE A NEW COMPENSATION ORDER WHICH MAY

  TERMINATE, CONTINUE, INCREASE, OR DECREASE SUCH COMPENSATION. 

SUCH NEW ORDER SHALL NOT AFFECT ANY COMPENSATION PAID UNDER

  AUTHORITY OF THE PRIOR ORDER."  44 STAT. 1437. 

AS ORIGINALLY ADOPTED, SEC. 22 PROVIDED POWER TO THE DEPUTY
COMMISSIONER TO MODIFY A PRIOR ORDER ONLY "DURING THE TERM OF AN AWARD"
AND THE PROVISION WAS CONSTRUED TO CONSTRICT THE POWER TO MODIFY A
PREVIOUS ORDER TO THE PERIOD OF PAYMENTS PURSUANT TO AN AWARD CF. F.
JARKA CO. V. MONAHAN, 29 F.2D 741, 742 (MASS. 1928).  THE UNITED STATES
EMPLOYEES' COMPENSATION COMMISSION (USECC), THEN CHARGED WITH THE
ADMINISTRATION OF THE ACT, REPEATEDLY RECOMMENDED THAT SEC. 22 BE
AMENDED TO ALLOW CONTINUING REVIEW OF PREVIOUSLY ENTERED ORDERS.  14TH
ANN. REP. USECC 75 (1930); 15TH ANN. REP. USECC 77 (1931); 16TH ANN.
REP. USECC 49 (1932); 17TH ANN. REP. USECC 18 (1933).  SEE BANKS V.
CHICAGO GRAIN TRIMMERS, 390 U. S. 459, 463 - 465 (1968).  IN NONE OF
THE ANNUAL REPORTS OF THE USECC IS THERE ANY INDICATION THAT AMENDMENT
OF THIS PROVISION WAS SOUGHT FOR ANY PURPOSE OTHER THAN BROADENING THE
LENGTH OF TIME DURING WHICH THE DEPUTY COMMISSIONER COULD EXERCISE HIS
POWER TO MODIFY PREVIOUSLY ENTERED ORDERS. 

IN 1934 CONGRESS RESPONDED BY AMENDING THIS PROVISION TO READ:

        " MODIFICATION OF COMPENSATION CASES 

     " SEC. 22.  UPON HIS OWN INITIATIVE, OR UPON THE APPLICATION
OF

  ANY PARTY IN INTEREST, ON THE GROUND OF A CHANGE IN CONDITIONS OR

  BECAUSE OF A MISTAKE IN A DETERMINATION OF FACT BY THE DEPUTY

  COMMISSIONER, THE DEPUTY COMMISSIONER MAY, AT ANY TIME PRIOR TO

  ONE YEAR AFTER THE DATE OF THE LAST PAYMENT OF COMPENSATION,

  WHETHER OR NOT A COMPENSATION ORDER HAS BEEN ISSUED, REVIEW A

  COMPENSATION CASE IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN

  RESPECT OF CLAIMS IN SECTION 19, AND IN ACCORDANCE WITH SUCH

  SECTION ISSUE A NEW COMPENSATION ORDER WHICH MAY TERMINATE,

  CONTINUE, REINSTATE, INCREASE, OR DECREASE SUCH COMPENSATION. 

SUCH NEW ORDER SHALL NOT AFFECT ANY COMPENSATION PREVIOUSLY PAID,

  EXCEPT THAT AN AWARD INCREASING THE COMPENSATION RATE MAY BE MADE

  EFFECTIVE FROM THE DATE OF THE INJURY, AND IF ANY PART OF THE

  COMPENSATION DUE OR TO BECOME DUE IS UNPAID, AN AWARD DECREASING

  THE COMPENSATION RATE MAY BE MADE EFFECTIVE FROM THE DATE OF THE

  INJURY, AND ANY PAYMENT MADE PRIOR THERETO IN EXCESS OF SUCH

  DECREASED RATE SHALL BE DEDUCTED FROM ANY UNPAID COMPENSATION, IN

  SUCH MANNER AND BY SUCH METHOD AS MAY BE DETERMINED BY THE DEPUTY

  COMMISSIONER WITH THE APPROVAL OF THE COMMISSION."  48 STAT.
807. 

THIS AMENDMENT INSERTED THE PHRASE "WHETHER OR NOT A COMPENSATION
ORDER HAS BEEN ISSUED," THE PHRASE UPON WHICH THE PETITIONERS'
STATUTORY CLAIM RESTS, AND THEY NATURALLY URGE THAT IT WAS INTENDED TO
APPLY THE ONE-YEAR TIME LIMIT OF SEC. 22, FORMERLY APPLICABLE ONLY TO
THE MODIFICATION OF PREVIOUSLY ENTERED ORDERS, TO ALL PENDING CLAIMS. 
BUT THE LEGISLATIVE HISTORY DOES NOT BEAR OUT PETITIONERS' CONTENTION. 

THE COMMITTEE REPORTS OF BOTH HOUSES OF CONGRESS ACCOMPANYING THIS
CHANGE EXPLAIN IT IN THE FOLLOWING LANGUAGE: 

"(THIS BILL) AMENDS SECTION 22 OF THE EXISTING ACT SO AS TO BROADEN
THE GROUNDS ON WHICH A DEPUTY COMMISSIONER CAN MODIFY AN AWARD AND ALSO
WHILE STRICTLY LIMITING THE PERIOD, EXTENDS THE TIME WITHIN WHICH SUCH
MODIFICATION MAY BE MADE.... 

     " THE AMENDMENT IS IN LINE WITH THE RECOMMENDATION OF THE

  (USECC) EXCEPT THAT IT LIMITS TO 1 YEAR AFTER THE DATE OF THE

  LAST PAYMENT OF COMPENSATION THE TIME DURING WHICH SUCH

  MODIFICATION MAY BE MADE."  S. REP. NO. 588, 73D CONG., 2D SESS.,

3 - 4 (1934); H.R. REP. NO. 1244, 73D CONG., 2D SESS., 4 (1934). 

AS WE SIMILARLY STATED IN BANKS V. CHICAGO GRAIN TRIMMERS, SUPRA, AT
464:  " THE PURPOSE OF THIS AMENDMENT WAS TO 'BROADEN THE GROUNDS ON
WHICH A DEPUTY COMMISSIONER CAN MODIFY AN AWARD.'"  SEE, E.G., KEEFFE
V. AEROJET-GENERAL SHIPYARDS, 404 U. S. 254, 255 - 256 (1971).  THERE
IS NO INDICATION THAT CONGRESS SOUGHT BY THIS AMENDMENT TO SUPERIMPOSE
A NEW STATUTE OF LIMITATIONS, IN ADDITION TO THE REQUIRED PERIOD FOR
FILING PROVIDED BY SEC. 13, ON ALL CLAIMS FILED UNDER THE ACT UPON
WHICH PAYMENTS ARE MADE.  TAKEN IN HISTORICAL AND STATUTORY CONTEXT,
THE PHRASE "WHETHER OR NOT A COMPENSATION ORDER HAS BEEN ISSUED" IS
PROPERLY INTERPRETED TO MEAN MERELY THAT THE ONE-YEAR TIME LIMIT
IMPOSED ON THE POWER OF THE DEPUTY COMMISSIONER TO MODIFY EXISTING
ORDERS RUNS FROM THE DATE OF FINAL PAYMENT OF COMPENSATION EVEN IF THE
ORDER SOUGHT TO BE MOCIFIED IS ACTUALLY ENTERED ONLY AFTER SUCH DATE. 
STAT. 1167.  THE CHIEF CHANGE WAS PERMITTING THE DEPUTY COMMISSIONER TO
REVIEW A CASE "AT ANY TIME PRIOR TO ONE YEAR AFTER THE REJECTION OF A
CLAIM."  SUCH AMENDMENT WOULD HAVE BEEN LARGELY SUPERFLUOUS IF CONGRESS
IN 1934 HAD ALREADY EXTENDED THIS PROVISION TO COVER CLAIMS WHETHER OR
NOT PREVIOUSLY DISPOSED OF BY THE DEPUTY COMMISSIONER.  AND IN FACT THE
LEGISLATIVE HISTORY SURROUNDING THE 1938 AMENDMENT REVEALS A CLEAR
CONGRESSIONAL UNDERSTANDING THAT SEC. 22 APPLIED ONLY TO MODIFICATION
OF PRIOR ORDERS OF THE DEPUTY COMMISSIONER.  THUS, FOR EXAMPLE, THE
HOUSE REPORT ACCOMPANYING THE 1938 AMENDMENT STATED THAT "(THE PURPOSE
OF THIS AMENDMENT IS TO EXTEND TO SUCH CASES THE SAME PROVISIONS WHICH
NOW APPLY IN CONNECTION WITH OTHER CASES FINALLY ACTED UPON BY THE
DEPUTY COMMISSIONER."  H. R. REP. NO. 1945, 75TH CONG., 3D SESS., 9
(1938).  (EMPHASIS ADDED.)  SEE ALSO H. R. REP. NO. 1807, 74TH CONG.,
1ST SESS., 5 (1935); S.REP.  NO. 1199, 74TH CONG., 1ST SESS., 4 (1935);
H. R. REP. NO. 2237, 74TH CONG., 2D SESS., 5 (1935); S. REP. NO. 1988,
75TH CONG., 3D SESS., 8 - 9 (1938).  REGULATIONS ISSUED UNDER THE ACT
BY USECC, CONTEMPORANEOUSLY WITH PASSAGE OF THE 1938 AMENDMENT, REFLECT
AN ADMINISTRATIVE UNDERSTANDING THAT SEC. 22 GOVERNED "APPLICATIONS) TO
THE DEPUTY COMMISSIONER FOR REVIEW OF A COMPENSATION CASE FOR
MODIFICATION OF AN AWARD."  20 CFR SEC. 31.15 (1938); 20 CFR SEC. 31.16
(1949). 

THE FIFTH CIRCUIT IN STRACHAN SHIPPING CO. V. HOLLIS, SUPRA,
INDICATED ITS BELIEF THAT THE ABSENCE OF A PROCEDURE FOR ORDERLY
CONCLUSION OF COMPENSATION CASES WAS INCOMPATIBLE WITH A SCHEME OF
COOPERATION AND VOLUNTARY PAYMENTS BY EMPLOYERS AND INSURERS ENVISAGED
BY THE ACT.  460 F.2D, AT 1116.  THE COURT BELOW DISAGREED, INDICATING
ITS BELIEF THAT THE PRESENT PROCEDURES GIVING A CARRIER THE RIGHT TO
COMPEL THE DEPUTY COMMISSIONER TO ADJUDICATE CLAIMS ELIMINATE ANY
UNFAIRNESS WHICH MIGHT RESULT FROM THE ABSENCE OF A FIXED CONCLUSION TO
SUCH CASES.  163 U.S.APP.  D.C., AT 152, 500 F.2D, AT 820.  CF. 33
U.S.C. SEC. 919 (C); 5 U.S.C. SEC. 706 (1); ATLANTIC & GULF STEVEDORES,
INC. V. DONOVAN, 274 F.2D 794 (CA5 1960).  WHATEVER THE MERITS OF A
FIXED PERIOD FOR RESOLUTION OF PENDING COMPENSATION CLAIMS NOT
PREVIOUSLY THE SUBJECT OF AN ORDER, CONGRESS DID NOT IN SEC. 22
ESTABLISH SUCH A PERIOD.  THE DECISION OF THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS THEREFORE

AFFIRMED. 

/1/ IN 1972, THIS RESPONSIBILITY WAS TRANSFERRED TO THE OFFICE OF
WORKMEN'S COMPENSATION PROGRAMS OF THE DEPARTMENT OF LABOR.  SEE 20 CFR
SEC. 701.101 - 701.103 (1973). 

/2/ THE DISTRICT OF COLUMBIA WORKMEN'S COMPENSATION ACT INCORPORATES
BY REFERENCE THE LONGSHOREMEN'S AND HARBOR WORKERS'  COMPENSATION ACT,
33 U.S.C. SEC. 901 ET SEQ. AS AMENDED.  SEE D.C. CODE ANN. SEC. 36 -
501 (1973). 

/3/ SECTION 13 OF THE ACT, U.S.C. SEC. 913, PROVIDED IN PART:  "
THE RIGHT TO COMPENSATION FOR DISABILITY UNDER THIS CHAPTER SHALL BE
BARRED UNLESS A CLAIM THEREFOR IS FILED WITHIN ONE YEAR AFTER THE
INJURY...EXCEPT THAT IF PAYMENT OF COMPENSATION HAS BEEN MADE WITHOUT
AN AWARD ON ACCOUNT OF SUCH INJURY...A CLAIM MAY BE FILED WITHIN ONE
YEAR AFTER THE DATE OF THE LAST PAYMENT..." 

GOVE NOTICE OF INJURY UNLESS THE EMPLOYER HAS ACTUAL NOTICE OF THE
INJURY. 

/4/ SINCE THE ACT REQUIRES THE EMPLOYER TO BEGIN MAKING THE PAYMENTS
CALLED FOR BY THE ACT WITHIN 14 DAYS AFTER RECEIVING NOTICE OF INJURY
WITHOUT AWAITING RESOLUTION OF THE COMPENSATION CLAIM AND PERMITS
WITHHOLDING OF PAYMENTS ONLY TO THE EXTENT OF ANY DISPUTE, VOLUNTARY
PAYMENT IN ADVANCE OF AN ACTUAL ORDER IS COMMON UNDER THE ACT.  SEE
SEC. 14 OF THE ACT, 33 U.S.C. SEC. 914 (1970 ED. AND SUPP. II).  EITHER
PARTY MAY OBTAIN RESOLUTION OF A PENDING CLAIM BY REQUEST UNDER SEC. 19
(C) OF THE ACT, 33 U.S.C. SEC. 919 (C), BUT IN PRACTICE MANY PENDING
CLAIMS ARE AMICABLY SETTLED THROUGH VOLUNTARY PAYMENTS WITHOUT THE
NECESSITY OF A FORMAL ORDER BY THE DEPUTY COMMISSIONER. 

/5/ SEE N. 4, SUPRA. 

/6/ THE DECISION OF THE DISTRICT COURT IS UNREPORTED. 

/7/ THE DECISION OF THE COURT OF APPEALS IS REPORTED AT 163
U.S.APP.  D.C. 147, 500 F.2D 815 (1974). 

JOHN C. DUNCAN III ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

FRANK H. EASTERBROOK ARGUED THE CAUSE FOR RESPONDENT WALTER PRO HAC
VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK AND MARSHALL
H. HARRIS.  JEFFERSON DE R. CAPPS FILED A BRIEF FOR RESPONDENT JONES. 
..END :







UNITED STATES V. PARK, 421 U.S. 658 


       UNITED STATES V. PARK

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 74 - 215.  ARGUED MARCH 18 - 19, 1975--DECIDED JUNE 9,

           1975; 499 F.2D 839, REVERSED. 


ACME MARKETS, INC., A LARGE NATIONAL FOOD CHAIN, AND RESPONDENT, ITS
PRESIDENT, WERE CHARGED WITH VIOLATING SEC. 301 (K) OF THE FEDERAL
FOOD, DRUG, AND COSMETIC ACT (THE ACT) IN AN INFORMATION ALLEGING THAT
THEY HAD CAUSED INTERSTATE FOOD SHIPMENTS BEING HELD IN ACME'S
BALTIMORE WAREHOUSE TO BE EXPOSED TO RODENT CONTAMINATION.  ACME, BUT
NOT RESPONDENT, PLEADED GUILTY.  AT HIS TRIAL RESPONDENT CONCEDED THAT
PROVIDING SANITYRY CONDITIONS FOR FOOD OFFERED FOR SALE TO THE PUBLIC
WAS SOMETHING THAT HE WAS "RESPONSIBLE FOR IN THE ENTIRE OPERATION OF
THE COMPANY," AND THAT IT WAS ONE OF THE MANY PHASES OF THE COMPANY
THAT HE ASSIGNED TO "DEPENDABLE SUBORDINATES."  EVIDENCE WAS ADMITTED
OVER RESPONDENT'S OBJECTION THAT HE HAD RECEIVED A FOOD AND DRUG
ADMINISTRATION (FDA) LETTER IN 1970 CONCERNING INSANITARY CONDITIONS AT
ACME'S PHILADELPHIA WAREHOUSE.  RESPONDENT CONCEDED THAT THE SAME
INDIVIDUALS WERE LARGELY RESPONSIBLE FOR SANITATION IN BOTH BALTIMORE
AND PHILADELPHIA, AND THAT AS ACME'S PRESIDENT HE WAS RESPONSIBE FOR
ANY RESULT THAT OCCURRED IN THE COMPANY.  THE TRIAL COURT, INTER ALIA,
INSTRUCTED THE JURY THAT ALTHOUGH RESPONDENT NEED NOT HAVE PERSONALLY
PARTICIPATED IN THE SITUATION, HE MUST HAVE HAD "A RESPONSIBLE
RELATIONSHIP TO THE ISSUE."  RESPONDENT WAS CONVICTED, BUT THE COURT OF
APPEALS REVERSED, REASONING THAT ALTHOUGH THIS COURT'S DECISION IN
UNITED STATES V. DOTTERWEICH, 320 U.S. 277, HAD CONSTRUED THE STATUTORY
PROVISIONS UNDER WHICH RESPONDENT HAD BEEN TRIED TO DISPENSE WITH THE
TRADITIONAL ELEMENT OF "'AWARENESS OF SOME WRONGDOING,'" THE COURT HAD
NOT CONSTRUED THEM AS DISPENSING WITH THE ELEMENT OF "WRONGFUL
ACTION."  THE COURT OF APPEALS CONCLUDED THAT THE TRIAL COURT'S
INSTRUCTIONS "MIGHT WELL HAVE LEFT THE JURY WITH THE ERRONEOUS
IMPRESSION THAT (RESPONDENT) COULD BE FOUND GUILTY IN THE ABSENCE OF
'WRONGFUL ACTION'  ON HIS PART," AND THAT PROOF OF THAT ELEMENT WAS
REQUIRED BY DUE PROCESS.  THE COURT ALSO HELD THAT THE ADMISSION IN
EVIDENCE OF THE 1970 FDA WARNING TO RESPONDENT WAS REVERSIBLE ERROR. 
HELD: 

1.  THE ACT IMPOSES UPON PERSONS EXERCISING AUTHORITY AND
SUPERVISORY RESPONSIBILITY REPOSED IN THEM BY A BUSINESS ORGANIZATION
NOT ONLY A POSITIVE DUTY TO SEEK OUT AND REMEDY VIOLATIONS BUT ALSO,
AND PRIMARILY, A DUTY TO IMPLEMENT MEASURES THAT WILL INSURE THAT
VIOLATIONS WILL NOT OCCUR, UNITED STATES V. DOTTERWEICH, SUPRA; IN
ORDER TO MAKE FOOD DISTRIBUTORS "THE STRICTEST CENSORS OF THEIR
MERCHANDISE," SMITH V. CALIFORNIA, 361 U.S. 147, 152, THE ACT PUNISHES
"NEGLECT WHERE THE LAW REQUIRES CARE, OR INACTION WHERE IT IMPOSES A
DUTY."  MORISSETTE V. UNITED STATES, 342 U.S. 246, 255.  PP. 670 -
673. 

2.  VIEWED AS A WHOLE AND IN CONTEXT, THE TRIAL COURT'S INSTRUCTIONS
WERE NOT MISLEADING AND PROVIDED A PROPER GUIDE FOR THE JURY'S
DETERMINATION.  THE CHARGE ADEQUATELY FOCUSED ON THE ISSUE OF
RESPONDENT'S AUTHORITY RESPECTING THE CONDITIONS THAT FORMED THE BASIS
OF THE ALLEGED VIOLATIONS, FAIRLY ADVISING THE JURY THAT TO FIND GUILT
IT MUST FIND THAT RESPONDENT "HAD A RESPONSIBLE RELATION TO THE
SITUATION"; THAT THE "SITUATION" WAS THE CONDITION OF THE WAREHOUSE;
AND THAT BY VIRTUE OF HIS POSITION HE HAD "AUTHORITY AND
RESPONSIBILITY" TO DEAL THEREWITH.  PP. 673 - 676. 

3.  THE ADMISSION OF TESTIMONY CONCERNING THE 1970 FDA WARNING WAS
PROPER REBUTTAL EVIDENCE TO RESPONDENT'S DEFENSE THAT HE HAD
JUSTIFIABLY RELIED UPON SUBORDINATES TO HANDLE SANITATION 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  STEWART, J.,
FILED A DISSENTING OPINION, IN WHICH MARSHALL AND POWELL, JJ., JOINED,
POST, P. 678. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO CONSIDER WHETHER JURY INSTRUCTIONS IN THE
PROSECUTION OF A CORPORATE OFFICER UNDER SEC. 301 (K) OF THE FEDERAL
FOOD, DRUG, AND COSMETIC ACT, 52 STAT. 1042, AS AMENDED, 21 U.S.C. SEC.
331 (K), WERE APPROPRIATE UNDER UNITED STATES V. DOTTERWEICH, 320 U.S.
277 (1943). 

ACME MARKETS, INC., IS A NATIONAL RETAIL FOOD CHAIN WITH
APPROXIMATELY 36,000 EMPLOYEES, 874 RETAIL OUTLETS, 12 GENERAL
WAREHOUSES, AND FOUR SPECIAL WAREHOUSES.  ITS HEADQUARTERS, INCLUDING
THE OFFICE OF THE PRESIDENT, RESPONDENT PARK, WHO IS CHIEF EXECUTIVE
OFFICER OF THE CORPORATION, ARE LOCATED IN PHILADELPHIA, PA. IN A FIVE
COUNT INFORMATION FILED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND, THE GOVERNMENT CHARGED ACME AND RESPONDENT WITH
VIOLATIONS OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT.  EACH COUNT OF
THE INFORMATION ALLEGED THAT THE DEFENDANTS HAD RECEIVED FOOD THAT HAD
BEEN SHIPPED IN INTERSTATE COMMERCE AND THAT, WHILE THE FOOD WAS BEING
HELD FOR SALE IN ACME'S BALTIMORE WAREHOUSE FOLLOWING SHIPMENT IN
INTERSTATE COMMERCE, THEY CAUSED IT TO BE HELD IN A BUILDING ACCESSIBLE
TO RODENTS AND TO BE EXPOSED TO CONTAMINATION BY RODENTS.  THESE ACTS
WERE ALLEGED TO HAVE RESULTED IN THE FOOD BEING ADULTERATED WITHIN THE
MEANING OF 21 U.S.C. SEC. 342 (A) (3) AND (4), /1/ IN VIOLATION OF 21
U.S.C. SEC. 331 (K).  /2/ 

ACME PLEADED GUILTY TO EACH COUNT OF THE INFORMATION.  RESPONDENT
PLEADED NOT GUILTY.  THE EVIDENCE AT TRIAL /3/ DEMONSTRATED THAT IN
APRIL 1970 THE FOOD AND DRUG ADMINISTRATION (FDA) ADVISED RESPONDENT BY
LETTER OF INSANITARY CONDITIONS IN ACME'S PHILADELPHIA WAREHOUSE.  IN
1971 THE FDA FOUND THAT SIMILAR CONDITIONS EXISTED IN THE FIRM'S
BALTIMORE WAREHOUSE.  AN FDA CONSUMER SAFETY OFFICER TESTIFIED
CONCERNING EVIDENCE OF RODENT INFESTATION AND OTHER INSANITARY
CONDITIONS DISCOVERED DURING A 12-DAY INSPECTION OF THE BALTIMORE
WAREHOUSE IN NOVEMBER AND DECEMBER 1971.  /4/ HE ALSO RELATED THAT A
SECOND INSPECTION OF THE WAREHOUSE HAD BEEN CONDUCTED IN MARCH 1972. 
/5/ ON THAT OCCASION THE INSPECTORS FOUND THAT THERE HAD BEEN
IMPROVEMENT IN THE SANITARY CONDITIONS, BUT THAT "THERE WAS STILL
EVIDENCE OF RODENT ACTIVITY IN THE BUILDING AND IN THE WAREHOUSES AND
WE FOUND SOME RODENT-CONTAMINATED LOTS OF FOOD ITEMS."  APP.  23. 

THE GOVERNMENT ALSO PRESENTED TESTIMONY BY THE CHIEF OF COMPLIANCE
OF THE FDA'S BALTIMORE OFFICE, WHO INFORMED RESPONDENT BY LETTER OF THE
CONDITIONS AT THE BALTIMORE WAREHOUSE AFTER THE FIRST INSPECTION.  /6/
THERE WAS TESTIMONY BY ACME'S BALTIMORE DIVISION VICE PRESIDENT, WHO
HAD RESPONDED TO THE LETTER ON BEHALF OF ACME AND RESPONDENT AND WHO
DESCRIBED THE STEPS TAKEN TO REMEDY THE INSANITYARY CONDITIONS
DISCOVERED BY BOTH INSPECTIONS.  THE GOVERNMENT'S FINAL WITNESS, ACME'S
VICE PRESIDENT FOR LEGAL AFFAIRS AND ASSISTANT SECRETARY, IDENTIFIED
RESPONDENT AS THE PRESIDENT AND CHIEF EXECUTIVE OFFICER OF THE COMPANY
AND READ A BYLAW PRESCRIBING THE DUTIES OF THE CHIEF EXECUTIVE
OFFICER.  /7/ HE TESTIFIED THAT RESPONDENT FUNCTIONED BY DELEGATING
"NORMAL OPERATING DUTIES," INCLUDING SANITATION, BUT THAT HE RETAINED
"CERTAIN THINGS, WHICH ARE THE BIG, BROAD, PRINCIPLES OF THE OPERATION
OF THE COMPANY," AND HAD "THE RESPONSIBILITY OF SEEING THAT THEY ALL
WORK TOGETHER."  ID., AT 41. 

AT THE CLOSE OF THE GOVERNMENT'S CASE IN CHIEF, RESPONDENT MOVED FOR
A JUDGMENT OF ACQUITTAL ON THE GROUND THAT "THE EVIDENCE IN CHIEF HAS
SHOWN THAT MR. PARK IS NOT PERSONALLY CONCERNED IN THIS FOOD AND DRUG
VIOLATION."  THE TRIAL JUDGE DENIED THE MOTION, STATING THAT UNITED
STATES V. DOTTERWEICH, 320 U.S. 277, WAS CONTROLLING. 

RESPONDENT WAS THE ONLY DEFENSE WITNESS.  HE TESTIFIED THAT,
ALTHOUGH ALL OF ACME'S EMPLOYEES WERE IN A SENSE UNDER HIS GENERAL
DIRECTION, THE COMPANY HAD AN "ORGANIZATIONAL STRUCTURE FOR
RESPONSIBILITIES FOR CERTAIN FUNCTIONS" ACCORDING TO WHICH DIFFERENT
PHASES OF ITS OPERATION WERE "ASSIGNED TO INDIVIDUALS WHO, IN TURN,
HAVE STAFF AND DEPARTMENTS UNDER THEM."  HE IDENTIFIED THOSE
INDIVIDUALS RESPONSIBLE FOR SANITATION AND RELATED THAT UPON RECEIPT OF
THE JANUARY 1972 FDA LETTER, HE HAD CONFERED WITH THE VICE PRESIDENT
FOR LEGAL AFFAIRS, WHO INFORMED HIM THAT THE BALTIMORE DIVISION VICE
PRESIDENT "WAS INVESTIGATING THE SITUATION IMMEDIATELY AND WOULD BE
TAKING CORRECTIVE ACTION AND WOULD BE PREPARING A SUMMARY OF THE
CORRECTIVE ACTION TO REPLY TO THE LETTER."  RESPONDENT STATED THAT HE
DID NOT "BELIEVE THERE WAS ANYTHING (HE) COULD HAVE DONE MORE
CONSTRUCTIVELY THAN WHAT (HE) FOUND WAS BEING DONE."  APP.  43 - 47. 

ON CROSS-EXAMINATION, RESPONDENT CONCEDED THAT PROVIDING SANITARY
CONDITIONS FOR FOOD OFFERED FOR SALE TO THE PUBLIC WAS SOMETHING THAT
HE WAS "RESPONSIBLE FOR IN THE ENTIRE OPERATION OF THE COMPANY," AND HE
STATED THAT IT WAS ONE OF MANY PHASES OF THE COMPANY THAT HE ASSIGNED
TO "DEPENDABLE SUBORDINATES."  RESPONDENT WAS ASKED ABOUT AND, OVER THE
OBJECTIONS OF HIS COUNSEL, ADMITTED RECEIVING, THE APRIL 1970 LETTER
ADDRESSED TO HIM FROM THE FDA REGARDING INSANITARY CONDITIONS AT ACME'S
PHILADELPHIA WAREHOUSE.  /8/ HE ACKNOWLEDGED THAT, WITH THE EXCEPTION
OF THE DIVISION VICE PRESIDENT, THE SAME INDIVDUALS HAD RESPONSIBILITY
FOR SANITATION IN BOTH BALTIMORE AND PHILADELPHIA.  FINALLY, IN
RESPONSE TO QUESTIONS CONCERNING THE PHILADELPHIA AND BALTIMORE
INCIDENTS, RESPONDENT ADMITTED THAT THE BALTIMORE PROBLEM INDICATED THE
SYSTEM FOR HANDLING SANITATION "WASN'T WORKING PERFECTLY" AND THAT AS
ACME'S CHIEF EXECUTIVE OFFICER HE WAS RESPONSIBLE FOR "ANY RESULT WHICH
OCCURS IN OUR COMPANY."  ID., AT 48 - 55. 

AT THE CLOSE OF THE EVIDENCE, RESPONDENT'S RENEWED MOTION FOR A
JUDGMENT OF ACQUITTAL WAS DENIED.  THE RELEVANT PORTION OF THE TRIAL
JUDGE'S INSTRUCTIONS TO THE JURY CHALLENGED BY RESPONDENT IS SET OUT IN
THE MARGIN.  /9/ RESPONDENT'S COUNSEL OBJECTED TO THE INSTRUCTIONS ON
THE GROUND THAT THEY FAILED FAIRLY TO REFLECT OUR DECISION IN UNITED
STATES V. DOTTERWEICH, 320 U.S. 277, AND TO DEFINE "'RESPONSIBLE
RELATIONSHIP.'"  THE TRIAL JUDGE OVERRULED THE OBJECTION.  THE JURY
FOUND RESPONDENT GUILTY ON ALL COUNTS OF THE INFORMATION, AND HE WAS
SUBSEQUENTLY SENTENCED TO PAY A FINE OF $50 ON EACH COUNT.  /10/ 

THE COURT OF APPEALS REVERSED THE CONVICTION AND REMANDED FOR A NEW
TRIAL.  THAT COURT VIEWED THE GOVERNMENT AS ARGUING "THAT THE
CONVICTION MAY BE PREDICATES SOLELY UPON A SHOWING THAT . . .
(RESPONDENT) WAS THE PRESIENT OF THE OFFENDING CORPORATION," AND IT
STATED THAT AS "A GENERAL PROPOSITION, SOME ACT OF COMMISSION OR
OMISSION IS AN ESSENTIAL ELEMENT OF EVERY CRIME."  499 F.2D 839, 841
(CA4 1974).  IT REASONED THAT, ALTHOUGH OUR DECISION IN UNITED STATES
V. DOTTERWEICH, SUPRA, AT 281, HAD CONSTRUED THE STATUTORY PROVISIONS
UNDER WHICH RESPONDENT WAS TRIED TO DISPENSE WITH THE TRADITIONAL
ELEMENT OF "' AWARENESS OF SOME WRONGDOING,'" THE COURT HAD NOT
CONSTRUED THEM AS DISPENSING WITH THE ELEMENT OF "WRONGFUL ACTION." 
THE COURT OF APPEALS CONCLUDED THAT THE TRIAL JUDGE'S INSTRUCTIONS
"MIGHT WELL HAVE LEFT THE JURY WITH THE ERRONEOUS IMPRESSION THAT PARK
COULD BE FOUND GUILTY IN THE ABSENCE OF 'WRONGFUL ACTION' ON HIS PART,"
499 F.2D, AT 841 - 842, AND THAT PROOF OF THIS ELEMENT WAS REQUIRED BY
DUE PROCESS.  IT HELD, WITH ONE DISSENT, THAT THE INSTRUCTIONS DID NOT
"CORRECTLY STATE THE LAW OF THE CASE," ID., AT 840, AND DIRECTED THAT
ON RETRIAL THE JURY BE INSTRUCTED AS TO "WRONGFUL ACTION," WHICH MIGHT
BE "GROSS NEGLIGENCE AND INATTENTION IN DISCHARGING . . . CORPORATE
DUTIES AND OBLIGATIONS OR ANY OF A HOST OF OTHER ACTS OF COMMISSION OR
OMISSION WHICH WOULD 'CAUSE' THE CONTAMINATION OF FOOD."  ID., AT 842. 
(FOOTNOTES OMITTED.) 

THE COURT OF APPEALS ALSO HELD THAT THE ADMISSION IN EVIDENCE OF THE
APRIL 1970 FDA WARNING TO RESPONDENT WAS ERROR WARRANTING REVERSAL,
BASED ON ITS CONCLUSION THAT, "AS THIS CASE WAS SUBMITTED TO THE JURY
AND IN LIGHT OF THE SOLE ISSUE PRESENTED," THERE WAS NO NEED FOR THE
EVIDENCE AND THUS THAT ITS PREJUDICIAL EFFECT OUTWEIGHED ITS RELEVANCY
UNDER THE TEST OF UNITED STATES V. WORDS, 484 F.2D 127 (CA4 1973),
CERT. DENIED, 415 U.S. 979 (1974).  499 F.2D, AT 843. 

WE GRANTED CERTIORARI BECAUSE OF AN APPARENT CONFLICT AMONG THE
COURTS OF APPEALS WITH RESPECT TO THE STANDARD OF LIABILITY OF
CORPORATE OFFICERS UNDER THE FEDERAL FOOD, DRUG, AND COSMETIC ACT AS
CONSTRUED IN UNITED STATES V. DOTTERWEICH, SUPRA, AND BECAUSE OF THE
IMPORTANCE OF THE QUESTION TO THE GOVERNMENT'S ENFORCEMENT PROGRAM.  WE
REVERSE. 

I 

THE QUESTION PRESENTED BY THE GOVERNMENT'S PETITION FOR CERTIORARI
IN UNITED STATES V. DOTTERWEICH, SUPRA, AND THE FOCUS OF THIS COURT'S
OPINION, WAS WHETHER "THE MANAGER OF A CORPORATION, AS WELL AS THE
CORPORATION ITSELF, MAY BE PROSECUTED UNDER THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT OF 1938 FOR THE INTRODUCTION OF MISBRANDED AND ADULTERATED
ARTICLES INTO INTERESTATE COMMERCE."  PET.  FOR CERT., NO. 5, O.T.
1943, P. 2.  IN DOTTERWEICH, A JURY HAD DISAGREED AS TO THE
CORPORATION, A JOBBER PURCHASING DRUGS FROM MANUFACTURERS AND SHIPPING
THEM IN INTERSTATE COMMERCE UNDER ITS OWN LABEL, BUT HAD CONVICTED
DOTTERWEICH, THE CORPORATION'S PRESIDENT AND GENERAL MANAGER.  THE
COURT OF APPEALS REVERSED THE CONVICTION ON THE GROUND THAT ONLY THE
DRUG DEALER, WHETHER CORPORATION OR INDIVIDUAL, WAS SUBJECT TO THE
CRIMINAL PROVISIONS OF THE ACT, AND THAT WHERE THE DEALER WAS A
CORPORATION, AND INDIVIDUAL CONNECTED THEREWITH MIGHT BE HELD
PERSONALLY ONLY IF HE WAS OPERATING THE CORPORATION "AS HIS 'ALTER
EGO.'"  UNITED STATES V. BUFFALO PHARMACAL CO., 131 F.2D 500, 503 (CA2
1942).  /11/ 

IN REVERSING THE JUDGMENT OF THE COURT OF APPEALS AND REINSTATING
DOTTERWEICH'S CONVICTION, THIS COURT LOOKED TO THE PURPOSES OF THE ACT
AND NOTED THAT THEY "TOUCH PHASES OF THE LIVES AND HEALTH OF PEOPLE
WHICH, IN THE CIRCUMSTANCES OF MODERN INDUSTRIALISM, ARE LARGELY BEYOND
SELF-PROTECTION."  320 U.S., AT 280.  IT OBSERVED THAT THE ACT IS OF "A
NOW FAMILIAR TYPE" WHICH "DISPENSES WITH THE CONVENTIONAL REQUIREMENT
FOR CRIMINAL CONDUCT--AWARENESS OF SOME WRONGDOING.  IN THE INTEREST OF
THE LARGER GOOD IT PUTS THE BURDEN OF ACTING AT HAZARD UPON A PERSON
OTHERWISE INNOCENT BUT STANDING IN RESPONSIBLE RELATION TO A PUBLIC
DANGER."  ID., AT 280 - 281. 

CENTRAL TO THE COURT'S CONCLUSION THAT INDIVIDUALS OTHER THAN
PROPRIETORS ARE SUBJECT TO THE CRIMINAL PROVISIONS OF THE ACT WAS THE
REALITY THAT "THE ONLY WAY IN WHICH A CORPORATION CAN ACT IS THROUGH
THE INDIVIDUALS WHO ACT ON ITS BEHALF."  ID., AT 281.  THE COURT ALSO
NOTED THAT CORPORATE OFFICERS HAD BEEN SUBJECT TO CRIMINAL LIABILITY
UNDER THE FERAL FOOD AND DRUGS ACT OF 1906, /12/ AND IT OBSERVED THAT A
CONTRARY RESULT UNDER THE 1938 LEGISLATION WOULD BE INCOMPATIBLE WITH
THE EXPRESSED INTENT OF CONGRESS TO "ENLARGE AND STIFFEN THE PENAL NET"
AND TO DISCOURAGE A VIEW OF THE ACTHS CRIMINAL PENALTIES AS A
"'LICENSE FEE FOR THE CONDUCT OF AN ILLEGITIMATE BUSINESS.'"  ID., AT
282 - 283.  (FOOTNOTE OMITTED.) 

AT THE SAME TIME, HOWEVER, THE COURT WAS AWARE OF THE CONCERN WHICH
WAS THE MOTIVATING FACTOR IN THE COURT OF APPEALS' DECISION, THAT
LITERAL ENFORCEMENT "MIGHT OPERATE TOO HARSHLY BY SWEEPING WITHIN ITS
CONDEMNATION ANY PERSON HOWEVER REMOTELY ENTANGLED IN THE PROSCRIBED
SHIPMENT."  ID., AT 284.  A LIMITING PRINCIPLE, IN THE FORM OF "SETTLED
DOCTRINES OF CRIMINAL LAW" DEFINING THOSE WHO "ARE RESPONSIBLE FOR THE
COMMISSION OF A MISDEMEANOR", WAS AVAILABLE.  IN THIS CONTEXT, THE
COURT CONCLUDED, THOSE DOCTRINES DICTATED THAT THE OFFENSE WAS
COMMITTED "BY ALL WHO . . . HAVE . . . A RESPONSIBLE SHARE IN THE
FURTHERANCE OF THE TRANSACTION WHICH THE STATUTE OUTLAWS".  IBID. 

THE COURT RECOGNIZED THAT, BECAUSE THE ACT DISPENSES WITH THE NEED
TO PROVE "CONSCIOUSNESS OF WRONGDOING", IT MAY RESULT IN HARDSHIP EVEN
AS APPLIED TO THOSE WHO SHARE "RESPONSIBILITY IN THE BUSINESS PROCESS
RESULTING IN" A VIOLATION.  IT REGARDED AS "TOO TREACHEROUS" AN ATTEMPT
"TO DEFINE OR EVEN TO INDICATE BY WAY OF ILLUSTRATION THE CLASS OF
EMPLOYEES WHICH STANDS IN SUCH A RESPONSIBLE RELATION."  THE QUESTION
OF RESPONSIBILITY, THE COURT SAID, DEPENDS "ON THE EVIDENCE PRODUCED AT
THE TRIAL AND ITS SUBMISSION--ASSUMING THE EVIDENCE WARRANTS IT--TO THE
JURY UNDER APPROPRIATE GUIDANCE."  THE COURT ADDED:  " IN SUCH MATTERS
THE GOOD SENSE OF PROSECUTORS, THE WISE GUIDANCE OF TRIAL JUDGES, AND
THE ULTIMATE JUDGMENT OF JURIES MUST BE TRUSTED."  ID., AT 284 - 285. 
/13/ SEE 21 U.S.C. SEC. 336.  CF. UNITED STATES V. SULLIVAN, 332 U.S.
689, 694 - 695 (1948). 

        II 

THE RULE THAT CORPORATE EMPLOYEES WHO HAVE "A RESPONSIBLE SHARE IN
THE FURTHERANCE OF THE TRANSACTION WHICH THE STATUTE OUTLAWS" ARE
SUBJECT TO THE CRIMINAL PROVISIONS OF THE ACT WAS NOT FORMULATED IN A
VACUUM.  CF. MORISSETTE V. UNITED STATES, 342 U.S. 246, 258 (1952). 
CASES UNDER THE FEDERAL FOOD AND DRUGS ACT OF 1906 REFLECTED THE VIEW
BOTH THAT KNOWLEDGE OR INTENT WERE NOT REQUIRED TO BE PROVED IN
PROSECUTIONS UNDER ITS CRIMINAL PROVISIONS, AND THAT RESPONSIBLE
CORPORATE AGENTS COULD BE SUBJECTED TO THE LIABILITY THEREBY IMPOSED. 
SEE, E.G., UNITED STATES V. MAYFIELD, 177 F.765 (ND ALA. 1910). 
MOREOVER, THE PRINCIPLE HAD BEEN RECOGNIZED THAT A CORPORATE AGENT,
THROUGH WHOSE ACT, DEFAULT, OR OMISSION THE CORPORATION COMMITTED A
CRIME, WAS HIMSELF GUILTY INDIVIDUALLY OF THAT CRIME.  THE PRINCIPLE
HAD BEEN APPLIED WHETHER OR NOT THE CRIME REQUIRED "CONSCIOUSNESS OF
WRONGDOING", AND IT HAD BEEN APPLIED NOT ONLY TO THOSE CORPORATE AGENTS
WHO THEMSELVES COMMITTED THE CRIMINAL ACT, BUT ALSO TO THOSE WHO BY
VIRTUE OF THEIR MANAGERIAL POSITIONS OR OTHER SIMILAR RELATION TO THE
ACTOR COULD BE DEEMED RESPONSIBLE FOR ITS COMMISSION.     IN THE LATTER
CLASS OF CASES, THE LIABILITY OF MANAGERIAL OFFICERS DID NOT DEPEND ON
THEIR KNOWLEDGE OF, OR PERSONAL PARTICIPATION IN, THE ACT MADE CRIMINAL
BY THE STATUTE.  RATHER, WHERE THE STATUTE UNDER WHICH THEY WERE
PROSECUTED DISPENSED WITH "CONSCIOUSNESS OF WRONGDOING", AN OMISSION OR
FAILURE TO ACT WAS DEEMED A SUFFICIENT BASIS FOR A RESPONSIBLE
CORPORATE AGENT'S LIABILITY.  IT WAS ENOUGH IN SUCH CASES THAT, BY
VIRTUE OF THE RELATIONSHIP HE BORE TO THE CORPORATION, THE AGENT HAD
THE POWER TO PREVENT THE ACT COMPLAINED OF.  SEE, E.G., STATE V.
BURNAM, 71 WASH. 199, 128 P. 218 (1912); OVERLANDLAND COTTON MILL CO.
V. PEOPLE, 32 COLO. 263, 75 P. 924 (1904).  CF. GROFF V. STATE, 171
IND. 547, 85 N.E. 769 (1908); TURNER V. STATE, 171 TENN. 36, 100 S.W.2D
236 (1937); PEOPLE V. SCHWARTZ, 28 CAL. APP. 2D 775, 70 P. 2D 1017
(1937); SAYRE, CRIMINAL RESPONSIBILITY FOR THE ACTS OF ANOTHER, 43
HARV. L.REV.  689 (1930). 

THE RATIONALE OF THE INTERPRETATION GIVEN THE ACT IN DOTTERWEICH, AS
HOLDING CRIMINALLY ACCOUNTABLE THE PERSONS WHOSE FAILURE TO EXERCISE
THE AUTHORITY AND SUPERVISORY RESPONSIBILITY REPOSED IN THEM BY THE
BUSINESS ORGANIZATION RESULTED IN THE VIOLATION COMPLAINED OF, HAS BEEN
CONFIRMED IN OUR SUBSEQUENT CASES.  THUS, THE COURT HAS REAFFIRMED THE
PROPOSITION THAT "THE PUBLIC INTEREST IN THE PURITY OF ITS FOOD IS SO
GREAT AS TO WARRANT THE IMPOSITION OF THE HIGHEST STANDARD OF CARE ON
DISTRIBUTORS".  SMITH V. CALIFORNIA, 361 U.S. 147, 152 (1959).  IN
ORDER TO MAKE "DISTRIBUTORS OF FOOD THE STRICTEST CENSORS OF THEIR
MERCHANDISE", IBID., THE ACT PUNISHES "NEGLECT WHERE THE LAW REQUIRES
CARE, OR INACTION WHERE IT IMPOSES A DUTY."  MORISSETTE V. UNITED
STATES, 342 U.S., AT 255.  " THE ACCUSED, IF HE DOES NOT WILL THE
VIOLATION, USUALLY IS IN A POSITION TO PREVENT IT WITH NO MORE CARE
THAN SOCIETY MIGHT REASONABLY EXPECT AND NO MORE EXERTION THAN IT MIGHT
REASONABLY EXACT FROM ONE WHO ASSUMED HIS RESPONSIBILITES."  ID., AT
256.  CF. HUGHES, CRIMINAL OMISSIONS, 67 YALE L.J. 590 (1958). 
SIMILARLY, IN CASES DECIDED AFTER DOTTERWEICH, THE COURTS OF APPEALS
HAVE RECOGNIZED THAT THOSE CORPORATE AGENTS VESTED WITH THE
RESPONSIBILITY, AND POWER COMMENSURATE WITH THAT RESPONSIBILITY, TO
DEVISE WHATEVER MEASURES ARE NECESSARY TO ENSURE COMPLIANCE WITH THE
ACT BEAR A "RESPONSIBLE RELATIONSHIP" TO, OR HAVE A "RESPONSIBLE SHARE"
IN, VIOLATIONS.  /14/ 

THUS DOTTERWEICH AND THE CASES WHICH HAVE FOLLOWED REVEAL THAT IN
PROVIDING SANCTIONS WHICH REACH AND TOUCH THE INDIVIDUALS WHO EXECUTE
THE CORPORATE MISSION--AND THIS IS BY NO MEANS NECESSARILY CONFINED TO
A SINGLE CORPORATE AGENT OR EMPLOYEE--THE ACT IMPOSES NOT ONLY A
POSITIVE DUTY TO SEEK OUT AND REMEDY VIOLATIONS WHEN THEY OCCUR BUT
ALSO, AND PRIMARILY, A DUTY TO IMPLEMENT MEASURES THAT WILL INSURE THAT
VIOLATIONS WILL NOT OCCUR.  THE REQUIREMENTS OF FORESIGHT AND VIGILANCE
IMPOSED ON RESPONSIBLE CORPORATE AGENTS ARE BEYOND QUESTION DEMANDING,
AND PERHAPS ONEROUS, BUT THEY ARE NO MORE STRINGENT THAN THE PUBLIC HAS
A RIGHT TO EXPECT OF THOSE WHO VOLUNTARILY ASSUME POSITIONS OF
AUTHORITY IN BUSINESS ENTERPRISES WHOSE SERVICES AND PRODUCTS AFFECT
THE HEALTH AND WELL-BEING OF THE PUBLIC THAT SUPPORTS THEM.  CF.
WASSERSTROM, STRICT LIABILITY IN THE CRIMINAL LAW, 12 STAN.  L. REV.
731, 741 - 745 (1960).  /15/ 

THE ACT DOES NOT, AS WE OBSERVED IN DOTTERWEICH, MAKE CRIMINAL
LIABILITY TURN ON "AWARENESS OF SOME WRONGDOING" OR "CONSCIOUS FRAUD". 
THE DUTY IMPOSED BY CONGRESS ON RESPONSIBLE CORPORATE AGENTS IS, WE
EMPHASIZE, ONE THAT REQUIRES THAT HIGHEST STANDARD OF FORESIGHT AND
VIGILANCE, BUT THE ACT, IN ITS CRIMINAL ASPECT, DOES NOT REQUIRE THAT
WHICH IS OBJECTIVELY IMPOSSIBLE.  THE THEORY UPON WHICH RESPONSIBLE
CORPORATE AGENTS ARE HELD CRIMINALLY ACCOUNTABLE FOR "CAUSING"
VIOLATIONS OF THE ACT PERMITS A CLAIM THAT A DEFENDANT WAS "POWERLESS"
TO PREVENT OR CORRECT THE VIOLATION TO "BE RAISED DEFENSIVELY AT A
TRIAL ON THE MERITS."  UNITED STATES V. WIESENFELD WAREHOUSE CO., 376
U.S. 86, 91 (1964).  IF SUCH A CLAIM IS MADE, THE DEFENDANT HAS THE
BURDEN OF COMING FORWARD WITH EVIDENCE, BUT THIS DOES NOT ALTER THE
GOVERNMENT'S ULTIMATE BURDEN OF PROVING BEYOND A REASONABLE DOUBT THE
DEFENDANT'S GUILT, INCLUDING HIS POWER, IN LIGHT OF THE DUTY IMPOSED BY
THE ACT, TO PREVENT OR CORRECT THE PROHIBITED CONDITION.  CONGRESS HAS
SEEN FIT TO ENFORCE THE ACCOUNTABILITY OF RESPONSIBLE CORPORATE AGENTS
DEALING WITH PRODUCTS WHICH MAY AFFECT THE HEALTH OF CONSUMERS BY PENAL
SANCTIONS CAST IN RIGOROUS TERMS, AND THE OBLIGATION OF THE COURTS IS
TO GIVE THEM EFFECT SO LONG AS THEY DO NOT VIOLATE THE CONSTITUTION. 

        III 

WE CANNOT AGREE WITH THE COURT OF APPEALS THAT IT WAS INCUMBENT UPON
THE DISTRICT COURT TO INSTRUCT THE JURY THAT THE GOVERNMENT HAD THE
BURDEN OF ESTABLISHING "WRONGFUL ACTION" IN THE SENSE IN WHICH THE
COURT OF APPEALS USED THAT PHRASE.  THE CONCEPT OF A "RESPONSIBLE
RELATIONSHIP" TO, OR A "RESPONSIBLE SHARE" IN, A VIOLATION OF THE ACT
INDEED IMPORTS SOME MEASURE OF BLAMEWORTHINESS; BUT IT IS EQUALLY CLEAR
THAT THE GOVERNMENT ESTABLISHES A PRIMA FACIE CASE WHEN IT INTRODUCES
EVIDENCE SUFFICIENT TO WARRANT A FINDING BY THE TRIER OF THE FACTS THAT
THE DEFENDANT HAD, BY REASON OF HIS POSITION IN THE CORPORATION,
RESPONSIBILITY AND AUTHORITY EITHER TO PREVENT IN THE FIRST INSTANCE,
OR PROMPTLY TO CORRECT, THE VIOLATION COMPLAINED OF, AND THAT HE FAILED
TO DO SO.  THE FAILURE THUS TO FULFILL THE DUTY IMPOSED BY THE
INTERACTION OF THE CORPORATE AGENT'S AUTHORITY AND THE STATUTE
FURNISHES A SUFFICIENT CAUSAL LINK.  THE CONSIDERATIONS WHICH PROMPTED
THE IMPOSITION OF THIS DUTY, AND THE SCOPE OF THE DUTY, PROVIDE THE
MEASURE OF CULPABILITY. 

TURNING TO THE JURY CHARGE IN THIS CASE, IT IS OF COURSE ARGUABLE
THAT ISOLATED PARTS CAN BE READ AS INTIMATING THAT A FINDING OF GUILT
COULD BE PREDICATED SOLELY ON RESPONDENT'S CORPORATE POSITION.  BUT
THIS IS NOT THE WAY WE REVIEW JURY INSTRUCTIONS, BECAUSE "A SINGLE
INSTRUCTION TO A JURY MAY NOT BE JUDGED IN ARTIFICIAL ISOLATION, BUT
MUST BE VIEWED IN THE CONTEXT OF THE OVERALL CHARGE."  CUPP V.
NAUGHTEN, 414 U.S. 141, 146 - 147 (1973).  SEE BOYD V. UNITED STATES,
271 U.S. 104, 107 (1926). 

READING THE ENTIRE CHARGE SATISFIES US THAT THE JURY'S ATTENTION WAS
ADEQUATELY FOCUSED ON THE ISSUE OF RESPONDENT'S AUTHORITY WITH RESPECT
TO THE CONDITIONS THAT FORMED THE BASIS OF THE ALLEGED VIOLATIONS. 
VIEWED AS A WHOLE, THE CHARGE DID NOT PERMIT THE JURY TO FIND GUILT
SOLELY ON THE BASIS OF RESPONDENT'S POSITION IN THE CORPORATION;
RATHER, IT FAIRLY ADVISED THE JURY THAT TO FIND GUILT IT MUST FIND
RESPONDENT "HAD A RESPONSIBLE RELATION TO THE SITUATION."  AND "BY
VIRTUE OF HIS POSITION.  . . HAD . . . AUTHORITY AND RESPONSIBILITY"
TO DEAL WITH THE SITUATION.  THE SITUATION REFERRED TO COULD ONLY "FOOD
. . . HELD IN UNSANITARY CONDITIONS IN A WAREHOUSE WITH THE RESULT THAT
IT CONSISTED, IN PART, OF FILTH OR . . . MAY HAVE BEEN CONTAIMNATED
WITH FILTH." 

MOREOVER, IN REVIEWING JURY INSTRUCTIONS, OUR TASK IS ALSO TO VIEW
THE CHARGE ITSELF AS PART OF THE WHOLE TRIAL.  " OFTEN ISOLATED
STATEMENTS TAKEN FROM THE CHARGE, SEEMINGLY PERJUDICIAL ON THEIR FACE,
ARE NOT SO WHEN CONSIDERED IN THE CONTEXT OF THE ENTIRE RECORD OF THE
TRIAL."  UNITED STATES V. BIRNBAUM, 373 F.2D 250, 257 (CA2), CERT.
DENIED, 389 U.S. 837 (1967).  (EMPHASIS ADDED.)  CF. CUPP V. NAUGHTEN,
SUPRA.  THE RECORD IN THIS CASE REVEALS THAT THE JURY COULD NOT HAVE
FAILED TO BE AWARE THAT THE MAIN ISSUE FOR DETERMINATION WAS NOT
RESPONDENT'S POSITION IN THE CORPORATE HIERARCHY, BUT RATHER HIS
ACCOUNTABILITY, BECAUSE OF THE RESPONSIBILITY AND AUTHORITY OF HIS
POSITION, FOR THE CONDITIONS WHICH GAVE RISE TO THE CHARGES AGAINST
HIM.  /16/ 

WE CONCLUDE THAT, VIEWED AS A WHOLE AND IN THE CONTEXT OF THE TRIAL,
THE CHARGE WAS NOT MISLEADING AND CONTAINED AN ADEQUATE STATEMENT OF
THE LAW TO GUIDE THE JURY'S DETERMINATION.  ALTHOUGH IT WOULD HAVE BEEN
BETTER TO GIVE AN INSTRUCTION MORE PRECISELY RELATING THE LEGAL ISSUE
TO THE FACTS OF THE CASE, WE CANNOT SAY THAT THE FAILURE TO PROVIDE THE
AMPLIFICATION REQUESTED BY RESPONDENT WAS AN ABUSE OF DISCRETION.  SEE
UNITED STATES V. BAYER, 331 U.S. 532, 536 - 537 (1947); HOLLAND V.
UNITED STATES, 348 U.S. 121, 140 (1954).  FINALLY, WE NOTE THAT THERE
WAS NO REQUEST FOR AN INSTRUCTION THAT THE GOVERNMENT WAS REQUIRED TO
PROVE BEYOND A REASONABLE DOUBT THAT RESPONDENT WAS NOT WITHOUT THE
POWER OR CAPACITY TO AFFECT THE CONDITIONS WHICH FOUNDED THE CHARGES IN
THE INFORMATION.  /17/ IN LIGHT OF THE EVIDENCE ADDUCED AT TRIAL, WE
FIND NO BASIS TO CONCLUDE THAT THE FAILURE OF THE TRIAL COURT TO GIVE
SUCH AN INSTRUCTION SUA SPONTE WAS PLAIN ERROR OR A DEFECT AFFECTING
SUBSTANTIAL RIGHTS.  FED. RULE CRIM. PROC. 52 (B).  COMPARE LOPEZ V.
UNITED STATES, 373 U.S. 427, 436 (1963), WITH SCREWS V. UNITED STATES,
325 U.S. 91, 107 (1945) (OPINION OF DOUGLAS, J.). 

        IV 

OUR CONCLUSION THAT THE COURT OF APPEALS ERRED IN ITS READING OF THE
JURY CHARGE SUGGESTS AS WELL OUR DISAGREEMENT WITH THAT COURT
CONCERNING THE ADMISSIBILITY OF EVIDENCE DEMONSTRATING THAT RESPONDENT
WAS ADVISED BY FDA IN 1970 OF INSANITARY CONDITIONS IN ACME'S
PHILADELPHIA WAREHOUSE.  WE ARE SATISFIED THAT THE ACT IMPOSES THE
HIGHEST STANDARD OF CARE AND PERMITS CONVICTION OF RESPONSIBLE
CORPORATE OFFICIALS WHO, IN LIGHT OF THIS STANDARD OF CARE, HAVE THE
POWER TO PREVENT OR CORRECT VIOLATIONS OF ITS PROVISIONS.  IMPLICIT IN
THE COURT'S ADMONITION THAT "THE ULTIMATE JUDGMENT OF JURIES MUST BE
TRUSTED", UNITED STATES V. DOTTERWEICH, 320 U.S., AT 285, HOWEVER, IS
THE REALIZATION THAT THEY MAY DEMAND MORE THAN CORPORATE BYLAWS TO FIND
CULPABILITY. 

RESPONDENT TESTIFIED IN HIS DEFENSE THAT HE HAD EMPLOYED A SYSTEM IN
WHICH HE RELIED UPON HIS SUBORDINATES, AND THAT HE WAS ULTIMATELY
RESPONSIBLE FOR THIS SYSTEM.  HE TESTIFIED FURTHER THAT HE HAD FOUND
THESE SUBORDINATES TO BE "DEPENDABLE" AND HAD "GREAT CONFIDENCE" IN
THEM.  BY THIS AND OTHER TESTIMONY RESPONDENT EVIDENTLY SOUGHT TO
PERSUADE THE JURY THAT, AS THE PRESIDENT OF A LARGE CORPORATION, HE HAD
NO CHOICE BUT TO DELEGATE DUTIES TO THOSE IN WHOM HE REPOSED
CONFIDENCE, THAT HE HAD NO REASON TO SUSPECT HIS SUBORDINATES WERE
FAILING TO INSURE COMPLIANCE WITH THE ACT, AND THAT, ONCE VIOLATIONS
WERE UNEARTHED, ACTING THROUGH THOSE SUBORDINATES HE DID EVERYTHING
POSSIBLE TO CORRECT THEM.  /18/ 

ALTHOUGH WE NEED NOT DECIDE WHETHER THIS TESTIMONY WOULD HAVE
ENTITLED RESPONDENT TO AN INSTRUCTION AS TO HIS LACK OF POWER, SEE
SUPRA, AT 676, HAD HE REQUESTED IT, /19/ THE TESTIMONY CLEARLY CREATED
THE "NEED" FOR REBUTTAL EVIDENCE.  THAT EVIDENCE WAS NOT OFFERED TO
SHOW THAT RESPONDENT HAD A PROPENSITY TO COMMIT CRIMINAL ACTS, CF.
MICHELSON V. UNITED STATES, 335 U.S. 469, 475 - 476 (1948), OR, AS IN
UNITED STATES V. WOODS, 484 F.2D 127, THAT THE CRIME CHARGED HAD BEEN
COMMITTED; ITS PURPOSE WAS TI DEMONSTRATE THAT RESPONDENT WAS ON NOTICE
THAT HE COULD NOT RELY ON HIS SYSTEM OF DELEGATION TO SUBORDINATES TO
PREVENT OR CORRECT INSANITARY CONDITIONS AT ACME'S WAREHOUSES, AND THAT
HE MUST HAVE BEEN AWARE OF THE DEFICIENCIES OF THIS SYSTEM BEFORE THE
BALTIMORE VIOLATIONS WERE DISCOVERED.  THE EVIDENCE WAS THEREFORE
RELEVANT SINCE IT SERVED TO REBUT RESPONDENT'S DEFENSE THAT HE HAD
JUSTIFIABLY RELIED UPON SUBORDINATES TO HANDLE SANITATION MATTERS.  CF.
UNITED STATES V. ROSS, 321 F.2D 61, 67 (CA2), CERT. DENIED, 375 U.S.
894 (1963); E. CLEARY, MC CORMICK ON EVIDENCE SEC. 190, PP. 450 - 452
(2D ED. 1972).  AND, PARTICULARLY IN LIGHT OF THE DIFFICULT TASK OF
JURIES IN PROSECUTIONS UNDER THE ACT, WE CONCLUDE THAT ITS RELEVANCE
AND PERSUASIVENESS OUTWEIGHTED ANY PREJUDICIAL EFFECT.  CF. RESEARCH
LABORATORIES, INC. V. UNITED STATES, 167 F.2D 410, 420 - 421 (CA9),
CERT. DENIED, 335 U.S. 843 (1948). 

                            REVERSED. 

/1/ SECTION 402 OF THE ACT, 21 U.S.C. SEC. 342, PROVIDES IN
PERTINENT PART: 

    " A FOOD SHALL BE DEEMED TO BE ADULTERATED--, 

"(A) . . . (3) IF IT CONSISTS IN WHOLE OR IN PART OF ANY

FILTY., PUTRID, OR DECOMPOSED SUBSTANCE, OR IF IT IS OTHERWISE

  UNFIT FOR FOOD; OR (4) IF IT HAS BEEN PREPARED, PACKED, OR HELD

  UNDER INSANITARY CONDITIONS WHEREBY IT MAY HAVE BECOME

  CONTAMINATED WITH FILTH, OR WHEREBY IT MAY HAVE BEEN RENDERED

  INJURIOUS TO HEALTH . . . ." 

/2/ SECTION 301 OF THE ACT, 21 U.S.C. SEC. 331, PROVIDES: 

     " THE FOLLOWING ACTS AND THE CAUSING THEREOF ARE PROHIBITED:

       * * * * * 

     "(K) THE ALTERATION, MUTILATION, DESTRUCTION, OBLITERATION, OR

  REMOVAL OF THE WHOLE OR ANY PART OF THE LABELING OF, OR THE DOING

  OF ANY OTHER ACT WITH RESPECT TO, A FOOD, DRUG, DEVICE, OR

  COSMETIC, IF, SUCH ACT IS DONE WHILE SUCH ARTICLE IS HELD FOR

  SALE (WHETHER OR NOT THE FIRST SALE) AFTER SHIPMENT IN INTERSTATE

 COMMERCE AND RESULTS IN SUCH ARTICLE BEING ADULTERATED OR

  MISBRANDED." 

/3/ THE PARTIES STIPULATED IN EFFECT THAT THE ITEMS OF FOOD
DESCRIBED IN THE INFORMATION HAD BEEN SHIPPED IN INTERSTATE COMMERCE
AND WERE BEING HELD FOR SALE IN ACME'S BALTIMORE WAREHOUSE. 

/4/ THE WITNESS TESTIFIED WITH RESPECT TO THE INSPECTION OF THE
BASEMENT OF THE "OLD BUILDING" IN THE WAREHOUSE COMPLEX:     " WE FOUND
EXTENSIVE EVIDENCE OF RODENT INFESTATION IN THE FORM OF RAT AND MOUSE
PELLETS THROUGHOUT THE ENTIRE PERIMETER AREA AND ALONG THE WALL. 

" WE ALSO FOUND THAT THE DOORS LEADING TO THE BASEMENT AREA FROM THE
RAIL SIDING HAD OPENINGS AT THE BOTTOM OR OPENINGS BENEATH PART OF THE
DOOR THAT CAME DOWN AT THE BOTTOM LARGE ENOUGH TO ADMIT RODENT ENTRY. 
THERE WERE ALSO RODENT) PELLETS FOUND ON A NUMBER OF DIFFERENT PACKAGES
OF BOXES OF VARIOUS ITEMS STORED IN THE BASEMENT, AND LOOKING AT THIS
DOCUMENT, I SEE THERE WERE ALSO BROKEN WINDOWS ALONG THE RAIL SIDING." 
APP.  20 - 21.  ON THE FIRST FLOOR OF THE "OLD BUILDING," THE
INSPECTORS FOUND: 

" THIRTY MOUSE PELLETS ON THE FLOOR ALONG WALLS AND ON THE LEDGE IN
THE HANGING MEAT ROOM.  THERE WERE AT LEAST TWENTY MOUSE PELLETS BESIDE
BALES OF LIME JELLO AND ONE OF THE BALES HAD A CHEWED RODENT HOLE IN
THE PRODUCT.  . . ."  ID., AT 22. 

/5/ THE FIRST FOUR COUNTS OF THE INFORMATION ALLEGED VIOLATIONS
CORRESPONDING TO THE OBSERVATIONS OF THE INSPECTORS DURING THE NOVEMBER
AND DECEMBER 1971 INSPECTION.  THE FIFTH COUNT ALLEGED VIOLATIONS
CORRESPONDING TO OBSERVATIONS DURING THE MARCH 1972 INSPECTION. 

/6/ THE LETTER, DATED JANUARY 27, 1972, INCLUDED THE FOLLOWING: 

" WE NOTE WITH MUCH CONCERN THAT THE OLD AND NEW WAREHOUSE AREAS
USED FOR FOOD STORAGE WERE ACTIVELY AND EXTENSIVELY INHABITED BY LIVE
RODENTS.  OF EVEN MORE CONCERN WAS THE OBSERVATION THAT SUCH
REPREHENSIBLE CONDITIONS OBVIOUSLY EXISTED FOR A PROLONGED PERIOD OF
TIME WITHOUT ANY DETECTION, OR WERE COMPLETELY IGNORED.  . . . 

WE TRUST THIS LETTER WILL SERVE TO DIRECT YOUR ATTENTION TO THE
SERIOUSNESS OF THE PROBLEM AND FORMALLY ADVISE YOU OF THE URGENT NEED
TO INITIATE WHATEVER MEASURES ARE NECESSARY TO PREVENT RECURRENCE AND
ENSURE COMPLIANCE WITH THE LAW."  ID., AT 64 - 65. 

/7/ THE BYLAW PROVIDED IN PERTINENT PART: 

" THE CHAIRMAN OF THE BOARD OF DIRECTORS OR THE PRESIDENT SHALL BE
THE CHIEF EXECUTIVE OFFICER OF THE COMPANY AS THE BOARD OF DIRECTORS
MAY FROM TIME TO TIME DETERMINE.  HE SHALL, SUBJECT TO THE BOARD OF
DIRECTORS, HAVE GENERAL AND ACTIVE SUPERVISION OF THE AFFAIRS,
BUSINESS, OFFICES AND EMPLOYEES OF THE COMPANY.  . . . 

" HE SHALL, FROM TIME TO TIME, IN HIS DISCRETION OR AT THE ORDER OF
THE BOARD, REPORT THE OPERATIONS AND AFFAIRS OF THE COMPANY.  HE SHALL
ALSO PERFORM SUCH OTHER DUTIES AND HAVE SUCH OTHER POWERS AS MAY BE
ASSIGNED TO HIM FROM TIME TO TIME BY THE BOARD OF DIRECTORS."  ID., AT
40. 

/8/ THE APRIL 1970 LETTER INFORMED RESPONDENT OF THE FOLLOWING
"OBJECTIONABLE CONDITIONS" IN ACME'S PHILADELPHA WAREHOUSE: 

"1.  POTENTIAL RODENT ENTRY WAYS WERE NOTED VIA ILL FITTING DOORS
AND DOOR IN IRREPAIR AT SOUTHWEST CORNER OF WAREHOUSE; AT DOCK AT OLD
SALVAGE ROOM AND AT RECEIVING AND SHIPPING DOORS WHICH WERE OBSERVED TO
BE OPEN MOST OF THE TIME. 

"2.  RODENT NESTING, RODENT EXCRETA PELLETS, RODENT STAINED BALE
BAGGING AND RODENT GNAWED HOLES WERE NOTED AMONG BALES OF FLOUR STORED
IN WAREHOUSE. 

"3.  POTENTIAL RODENT HARBORAGE WAS NOTED IN DISCARDED PAPER, ROPE,
SAWDUST AND OTHER DEBRIS PILED IN CORNER OF SHIPPING AND RECEIVING DOCK
NEAR BAKERY AND WAREHOUSE DOORS.  RODENT EXCRETA PELLETS WERE OBSERVED
AMONG BAGS OF SAWDUST (OR WOOD SHAVINGS)."  ID., AT 70. 

/9/ IN ORDER TO FIND THE DEFENDANT GUILTY ON ANY COUNT OF THE
INFORMATION, YOU MUST FIND BEYOND A REASONABLE DOUBT ON EACH COUNT.  .
. .

        * * * * * 

" THIRDLY, THAT JOHN R. PARK HELD A POSITION OF AUTHORITY IN THE
OPERATION OF THE BUSINESS OF ACME MARKETS, INCORPORATED. 

" HOWEVER, YOU NEED NOT CONCERN YOURSELVES WITH THE FIRST TWO
ELEMENTS OF THE CASE.  THE MAIN ISSUE FOR YOUR DETERMINATION IS ONLY
WITH THE THIRD ELEMENT, WHETHER THE DEFENDANT HELD A POSITION OF
AUTHORITY AND RESPONSIBILITY IN THE BUSINESS OF ACME MARKETS. 

        * * * * * 

" THE STATUTE MAKES INDIVIDUALS, AS WELL AS CORPORATIONS, LIABLE FOR
VIOLATIONS.  AN INDIVIDUAL IS LIABLE IF IT IS CLEAR, BEYOND A REASABLE
DOUBT, THAT THE ELEMENTS OF THE ADULTERATION OF THE FOOD AS TO TRAVEL
IN INTERSTATE COMMERCE ARE PRESENT.  AS I HAVE INSTRUCTED YOU IN THIS
CASE, THEY ARE, AND THAT THE INDIVIDUAL HAD A RESPONSIBLE RELATION TO
THE SITUATION, EVEN THOUGH HE MAY NOT HAVE PARTICIPATED PERSONALLY. 

" THE INDIVIDUAL IS OR COULD BE LIABLE UNDER THE STATUTE, EVEN IF HE
DID NOT CONSCIOUSLY DO WRONG.  HOWEVER, THE FACT THAT THE DEFENDANT IS
PRESIDENT AND IS A CHIEF EXECUTIVE OFFICER OF THE ACME MARKETS DOES NOT
REQUIRE A FINDING OF GUILT.  THOUGH, HE NEED NOT HAVE PERSONALLY
PARTICIPATED IN THE SITUATION, HE MUST HAVE HAD A RESPONSIBLE
RELATIONSHIP TO THE ISSUE.  THE ISSUE IS, IN THIS CASE, WHETHER THE
DEFENDANT, JOHN R. PARK, BY VIRTUE OF HIS POSITION IN THE COMPANY, HAD
A POSITION OF AUTHORITY AND RESPONSIBILITY IN THE SITUATION OUT OF
WHICH THESE CHARGES AROSE."  ID., AT 61 - 62. 

/10/ SECTIONS 303 (A) AND (B) OF THE ACT, 21 U.S.C. SEC. 333 (A) AND
(B), PROVIDE: 

"(A) ANY PERSON WHO VIOLATES A PROVISION OF SECTION 331 OF THIS
TITLE SHALL BE IMPRISONED FOR NOT MORE THAN ONE YEAR OR FINED NOT MORE
THAN $1,000, OR BOTH. 

"(B) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) OF THIS
HIM UNDER THIS SECTION HAS BECOME FINAL, OR COMMITS SUCH A VIOLATION
WITH THE INTENT TO DEFRAUD OR MISLEAD, SUCH PERSON SHALL BE IMPRISONED
FOR NOT MORE THAN THREE YEARS OR FINED NOT MORE THAN $10,000, OR
BOTH."  RESPONDENT'S RENEWED MOTION FOR A JUDGMENT OF A ACQUITTAL OR IN
THE ALTERNATIVE FOR A NEW TRIAL, ONE OF THE GROUNDS OF WHICH WAS THE
ALLEGED ABUSE OF DISCRETION IN THE INITIATION OF THE PROSECUTION
AGAINST HIM, HAD PREVIOUSLY BEEN DENIED AFTER ARGUMENT. 

/11/ THE COURT OF APPEALS RELIED UPON SEC 303 (C) OF THE ACT, 21
U.S.C. SEC. 333 (C), WHICH EXTENDED IMMUNITY FROM THE PENALTIES
PROVIDED BY SEC. 303 (A) TO A PERSON WHO COULD ESTABLISH A GUARANTY
"SIGNED BY, AND CONTAINING THE NAME AND ADDRESS OF, THE PERSON RESIDING
IN THE UNITED STATES FROM WHOM HE RECEIVED IN GOOD FAITH THE ARTICLE. 
. . ."  (EMPHASIS ADDED.)  THE COURT REASONED THAT WHERE THE DRUG
DEALER WAS A CORPORATION, THE PROTECTION OF SEC. 303 (C) WOULD EXTEND
ONLY TO SUCH DEALER AND NOT TO ITS EMPLOYEES. 

/12/ ACT OF JUNE 30, 1906, C. 3915, 34 STAT. 768. 

/13/ IN REINSTATING DOTTWEWEICH'S CONVICTION, THE COURT STATED:  "
FOR PRESENT PURPOSE IT SUFFICES TO SAY THAT IN WHAT THE DEFENSE
CHARACTERIZED AS 'A VERY FAIR CHARGE' THE DISTRICT COURT PROPERLY LEFT
THE QUESTION OF THE RESPONSIBILITY OF DOTTERWEICH FOR THE SHIPMENT TO
THE JURY, AND THERE WAS SUFFICIENT EVIDENCE TO SUPPORT ITS VERDICT." 
320 U.S. 277, 285. 

/14/ SEE, E.G., LELLES V. UNITED STATES, 241 F.2D 21 (CA.), CERT.
DENIED, 353 U.S. 974 (1957); UNITED STATES V. KAADT, 171 F.2D 600 (CA7
1948).  CF. UNITED STATES V. SHAPIRO, 491 F.ID 335, 337 (CA6 1974);
UNITED STATES V. 3963 BOTTLES, 265 F.2D 332 (CA7), CERT. DENIED, 360
U.S. 931 (1959); UNITED STATES V. KLEHMAN, 397 F.2D 406 (CA7 1968). 

/15/ WE NOTE THAT IN 1948 THE SENATE PASSED AN AMENDMENT TO SEC. 303
(A) OF THE ACT TO IMPOSE CRIMINAL LIABILITY ONLY FOR VIOLATIONS
COMMITTED "WILLFULLY OR AS A RESULT OF GROSS NEGLIGENCE."  94 CONG.
REC. 6760 - 6761 (1948).  HOWEVER, THE AMENDMENT WAS SUBSEQUENTLY
STRICKEN IN CONFERENCE.  94 CONG. REC. 8551 (1948); 94 CONG. REC. 8838
(1948). 

/16/ IN HIS SUMMATION TO THE JURY, THE PROSECUTOR ARGUED: 

" THAT BRINGS US TO THE THIRD QUESTION THAT YOU MUST DECIDE, AND
THAT IS WHETHER MR. JOHN R. PARK IS RESPONSIBLE FOR THE CONDITIONS
PERSISTING.  . . .

* * * * * 

" THE POINT IS THAT, WHILE MR. PARK APPARENTLY HAD A SYSTEM, AND I
THINK HE TESTIFIED THE SYSTEM HAD BEEN SET UP LONG BEFORE HE GOT THERE-
HE DID SAY THAT IF ANYONE WAS GOING TO CHANGE THE SYSTEM, IT WAS HIS
RESPONSIBILITY TO DO SO. THAT VERY SYSTEM, THE SYSTEM THAT HE DID'T
CHANGE, DID NOT WORK IN MARCH OF 1970 IN PHILADELPHIA; IT DID NOT WORK
IN NOVEMBER OF 1971 IN BALTIMORE; IT DID NOT WORK IN MARCH OF 1972 IN
VALTIMORE, AND UNDER THOSE CIRCUMSTANCES, I SUBMIT, THAT MR. PARK IS
THE MAN RESPONSIBLE.  . . .

        * * * * * 

" MR. PARK WAS RESPONSIBLE FOR SEEING THAT SANITATION WAS TAKEN CARE
OF, AND HE HAD A SYSTEM SET UP THAT WAS SUPPOSED TO DO THAT.  THIS
SYSTEM DIDN'T WORK.  IT DIDN'T WORK THREE THIMES.  AT SOME POINT IN
TIME, MR. PARK HAS TO BE HELD RESPONSIBLE FOR THE FACT THAT HIS SYSTEM
ISN'T WORKING.  . . ."  APP. 57, 59, 60. 

/17/ COUNSEL FOR RESPONDENT SUBMITTED ONLY TWO REQUESTS FOR CHARGE:
(1) " STATUTES SUCH AS THE ONES THE GOVERNMENT SEEKS TO APPLY HERE ARE
CRIMINAL STATUTES AND SHOULD BE STRICTLY CONSTRUED," AND (2) "  THE
FACT THAT JOHN PARK IS RESIDENT AND CHIEF EXECUTIVE OFFICER OF ACME
MARKETS, INC. DOES NOT OF ITSELF JUSTIFY A FINDING OF GUILTY UNDER
COUNTS I THROUGH V OF THE INFORMATION."  1 RECORD 56 - 57. 

/18/ IN HIS SUMMATION TO THE JURY, COUNSEL FOR RESPONDENT ARGUED: 

" NOW, YOU ARE MR. PARK.  YOU HAVE HIS RESPONSIBILITY FOR A THOUSAND
STORES--I THINK EIGHT HUNDRED AND SOME STORES--LOTS OF STORES, MANY
DIVISIONS, MANY WAREHOUSES.  WHAT ARE YOU GOING TO DO, EXCEPT HIRE
PEOPLE IN WHOM YOU HAVE CONFIDENCE TO WHOM YOU DELEGATE THE WORK?  . .
.

        * * * * * 

". . . WHAT I AM SAYING TO YOU IS THAT MR. PARK, THROUGH HIS
SUBORDINATES, WHEN THIS WAS FOUND OUT, DID EVERYTHING IN THE WORLD THEY
(SIC) COULD."  3 RECORD 201, 207. 

/19/ ASSUMING, ARGUENDO, THAT IT WOULD BE OBJECTIVELY IMPOSSIBLE FOR
A SENIOR CORPORATE AGENT TO CONTROL FULLY DAY-TO-DAY CONDITIONS IN 874
RETAIL OUTLETS, IT DOES NOT FOLLOW THAT SUCH A CORPORATE AGENT COULD
NOT PREVENT OR REMEDLY PROMPTLY VIOLATIONS OF ELEMENTARY SANITARY
CONDITIONS IN 16 REGIONAL WAREHOUSES. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE MARSHALL AND MR. JUSTICE
POWELL JOIN, DISSENTING. 

ALTHOUGH AGREEING WITH MUCH OF WHAT IS SAID IN THE COURT'S OPINION,
I DISSENT FROM THE OPINION AND JUDGMENT, BECAUSE THE JURY INSTRUCTIONS
IN THIS CASE WERE NOT CONSISTENT WITH THE LAW AS THE COURT TODAY
EXPOUNDS IT. 

AS I UNDERSTAND THE COURT'S OPINION, IT HOLDS THAT IN ORDER TO
SUSTAIN A CONVICTION UNDER SEC. 301 (K) OF THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT THE PROSECUTION MUST AT LEAST SHOW THAT BY REASON OF AN
INDIVIDUAL'S CORPORATE POSITION AND RESPONSIBILITIES, HE HAD A DUTY TO
USE CARE TO MAINTAIN THE PHYSICAL INTEGRITY OF THE CORPORATION'S FOOD
PRODUCTS.  A JURY MAY THEN DRAW THE INFERENCE THAT WHEN THE FOOD IS
FOUND TO BE IN SUCH CONDITION AS TO VIOLATE THE STATUTE'S PROHIBITIONS,
THAT CONDITION WAS "CAUSED" BY A BREACH OF THE STANDARD OF CARE IMPOSED
UPON THE RESPONSIBLE OFFICIAL.  THIS IS THE LANGUAGE OF NEGLIGENCE, AND
I AGREE WITH IT. 

TO AFFIRM THIS CONVICTION, HOWEVER, THE COURT MUST APPROVE THE
INSTRUCTIONS GIVEN TO THE MEMBERS OF THE JURY WHO WERE ENTRUSTED WITH
DETERMINING WHETHER THE RESPONDENT WAS INNOCENT OR GUILTY.  THOSE
INSTRUCTIONS DID NOT CONFORM TO THE STANDARDS THAT THE COURT ITSELF
SETS OUT TODAY. 

THE TRIAL JUDGE INSTRUCTED THE JURY TO FIND PARK GUILTY IF IT FOUND
BEYOND A REASONABLE DOUBT THAT PARK "HAD A RESPONSIBLE RELATION TO THE
SITUATION.  . . . THE ISSUE IS, IN THIS CASE, WHETHER THE DEFENDANT,
JOHN R. PARK, BY VIRTUE OF HIS POSITION IN THE COMPANY, HAD A POSITION
OF AUTHORITY AND RESPONSIBILITY IN THE SITUATION OUT OF WHICH THESE
CHARGES AROSE."  REQUIRING, AS IT DID, A VERDICT OF GUILTY UPON A
FINDING OF "RESPONSIBILITY," THIS INSTRUCTION STANDING ALONE COULD HAVE
BEEN CONSTRUED AS A DIRECTION TO CONVICT IF THE JURY FOUND PARK
"RESPONSIBLE" FOR THE CONDITION IN THE SENSE THAT HIS POSITION AS CHIEF
EXECUTIVE OFFICER GAVE HIM FORMAL RESPONSIBILITY WITHIN THE STRUCTURE
OF THE CORPORATION.  BUT THE TRIAL JUDGE WENT ON SPECIFICALLY TO
CAUTION THE JURY NOT TO ATTACH SUCH A MEANING TO HIS INSTRUCTION,
SAYING THAT "THE FACT THAT THE DEFENDANT IS PRESIDENT AND IS A CHIEF
EXECUTIVE OFFICER OF THE ACME MARKETS DOES NOT REQUIRE A FINDING OF
GUILT."  " RESPONSIBILITY" AS USED BY THE TRIAL JUDGE THEREFORE HAD
WHATEVER MEANING THE JURY IN ITS UNGUIDED DISCRETION CHOSE TO GIVE IT. 

THE INSTRUCTIONS, THEREFORE, EXPRESSED NOTHING MORE THAN A
TAUTOLOGY.  THEY TOLD THE JURY:  " YOU MUST FIND THE DEFENDANT GUILTY
IF YOU FIND THAT HE IS TO BE HELD ACCOUNTABLE FOR THIS ADULTERATED
FOOD."  IN OTHER WORDS:  " YOU MUST FIND THE DEFENDANT GUILTY IF YOU
CONCLUDE THAT HE IS GUILTY."  THE TRIAL JUDGE RECOGNIZED THE
INFIRMITIES IN THESE INSTRUCTIONS, BUT HE RELUCTANTLY CONCLUDED THAT HE
WAS REQUIRED TO GIVE SUCH A CHARGE UNDER UNITED STATES V. DOTTERWEICH,
320 U.S. 277, WHICH, HE THOUGHT, IN DECLINING TO DEFINE "RESPONSIBLE
RELATION" HAD DECLINED TO SPECIFY THE MINIMUM STANDARD OF LIABILITY FOR
CRIMINAL GUILT.  /1/ 

AS THE COURT TODAY RECOGNIZES, THE DOTTERWEICH CASE DID NOT DEAL
WITH WHAT KIND OF CONDUCT MUST BE PROVED TO SUPPORT A FINDING OF
CRIMINAL GUILT UNDER THE ACT.  DOTTWEWEICH WAS CONCERNED, RATHER, WITH
THE STATUTORY DEFINITION OF "PERSON"--WITH WHAT KIND OF CORPORATE
EMPLOYEES WERE EVEN "SUBJECT TO THE CRIMINAL PROVISIONS OF THE ACT." 
ANTE, AT 670.  THE COURT HELD THAT THOSE EMPLOYEES WITH "A RESPONSIBLE
RELATION" TO THE VIOLATIVE TRANSACTION OR CONDITION WERE SUBJECT TO THE
ACT'S CRIMINAL PROVISIONS, BUT ALL THAT THE COURT HAD TO SAY WITH
RESPECT TO THE KIND OF CONDUCT THAT CAN CONSTITUTE CRIMINAL GUILT WAS
THAT THE ACT "DISPENSES WITH THE CONVENTIONAL REQUIREMENT FOR CRIMINAL
CONDUCT--AWARENESS OF SOME WRONGDOING."  320 U.S., AT 281. 

IN APPROVING THE INSTRUCTIONS TO THE JURY IN THIS CASE--,
INSTRUCTIONS BASED UPON WHAT THE COURT CONCEDES WAS A MISUNDERSTANDING
OF DOTTWEWEICH--THE COURT APPROVES A CONSPICUOUS DEPARTURE FROM THE
LONG AND FIRMLY ESTABLISHED DIVISION OF FUNCTIONS BETWEEN JUDGE AND
JURY IN THE ADMINISTRATION OF CRIMINAL JUSTICE.  AS THE COURT PUT THE
MATTER MORE THAN 80 YEARS AGO: 

" WE MUST HOLD FIRMLY TO THE DOCTRINE THAT IN THE COURTS OF THE

  UNITED STATES IT IS THE DUTY OF JURIES IN CRIMINAL CASES TO TAKE

  THE LAW FROM THE COURT AND APPLY THAT LAW TO THE FACTS AS THEY

  FIND THEM TO BE FROM THE EVIDENCE.  UPON THE COURT RESTS THE

  RESPONSIBILITY OF DECLARING THE LAW; UPON THE JURY, THE

  RESPONSIBILITY OF APPLYING THE LAW SO DECLARED TO THE FACTS AS

  THEY, UPON THEIR CONSCIENCE, BELIEVE THEM TO BE.  UNDER ANY OTHER

  SYSTEM, THE COURTS, ALTHOUGH ESTABLISHED IN ORDER TO DECLARE THE

  LAW, WOULD FOR EVERY PRACTICAL PURPOSE BE ELIMINATED FROM OUR

  SYSTEM OF GOVERNMENT AS INSTRUMENTALITIES DEVISED FOR THE

PROTECTION EQUALLY OF SOCIETY AND OF INDIVIDUALS IN THEIR

ESSENTIAL RIGHTS.  WHEN THAT OCCURS OUR GOVERNMENT WILL CEASE TO

  BE A GOVERNMENT OF LAWS, AND BECOME A GOVERNMENT OF MEN.  LIBERTY

  REGULATED BY LAW IS THE UNDERLYING PRINCIPLE OF OUR

  INSTITUTIONS."  SPARF V. UNITED STATES, 156 U.S. 51, 102 - 103. 

MORE RECENTLY THE COURT DECLARED UNCONSTITUTIONAL A PROCEDURE
WHEREBY A JURY, HAVING ACQUITTED A DEFENDANT OF A MISDEMEANOR, WAS
INSTRUCTED TO IMPOSE UPON HIM SUCH COSTS OF THE PROSECUTION AS IT
DEEMED APPROPRIATE TO HIS DEGREE OF "RESPONSIBILITY."  GIACCIO V.
PENNSYLVANIA, 382 U.S. 399.  THE STATE STATUTE UNDER WHICH THE
PROCEDURE WAS AUTHORIZED WAS INVALIDATED BECAUSE IT LEFT "TO THE JURY
SUCH BROAD AND UNLIMITED POWER IN IMPOSING COSTS ON ACQUITTED
DEFENDANTS THAT THE JURORS MUST MAKE DETERMINATIONS OF THE CRUCIAL
ISSUE UPON THEIR OWN NOTIONS OF WHAT THE LAW SHOULD BE INSTEAD OF WHAT
IT IS."  ID., AT 403.  AND IN JACKSON V. DENNO, 378 U.S. 368 (1964),
THE COURT FOUND UNCONSTITUTIONAL A PROCEDURE WHEREBY A JURY WAS
PERMITTED TO DECIDE THE QUESTION OF THE VOLUNTARINESS OF A CONFESSION
ALONG WITH THE QUESTION OF GUILT, IN PART BECAUSE THAT PROCEDURE
PERMITTED THE SUBMERGENCE OF A QUESTION OF LAW, AS TO WHICH APPELLATE
REVIEW WAS CONSTITUTIONALLY REQUIRED, IN THE GENERAL DELIBERATIONS OF A
JURY. 

THESE CASES NO MORE THAN EMBODY A PRINCIPLE FUNDAMENTAL TO OUR
JURISPRUDENCE:  THAT A JURY IS TO DECIDE THE FACTS AND APPLY TO THEM
THE LAW AS EXPLAINED BY THE TRIAL JUDGE.  WERE IT OTHERWISE, TRIAL BY
JURY WOULD BE NO MORE RATIONAL AND NO MORE RESPONSIVE TO THE
ACCUMULATED WISDOM OF THE LAW THAN TRIAL BY ORDEAL.  IT IS THE FUNCTION
OF JURY INSTRUCTIONS, IN SHORT, TO ESTABLISH IN ANY TRIAL THE OBJECTIVE
STANDARDS THAT A JURY IS TO APPLY AS IT PERFORMS ITS OWN FUNCTION OF
FINDING THE FACTS. 

TO BE SURE, "THE DAY (IS) LONG PAST WHEN (COURTS) . . ., PARSED
INSTRUCTIONS AND ENGAGED IN NICE SEMANTIC DISTINCTIONS," COOL V. UNITED
STATES, 409 U.S. 100, 107 (REHNQUIST, J., DISSENTING).  BUT THIS COURT
HAS NEVER BEFORE ABANDONED THE VIEW THAT JURY INSTRUCTIONS MUST CONTAIN
A STATEMENT OF THE APPLICABLE LAW SUFFICIENTLY PRECISE TO ENABLE THE
JURY TO BE GUIDED BY SOMETHING OTHER THAN ITS ROUGH NOTIONS OF SOCIAL
JUSTICE.  AND WHILE IT MIGHT BE ARGUED THAT THE ISSUE BEFORE THE JURY
IN THIS CASE WAS A "MIXED" QUESTION OF BOTH LAW AND FACT, THIS HAS
NEVER MEANT THAT A JURY IS TO BE LEFT WHOLLY AT SEA, WITHOUT ANY
GUIDANCE AS TO THE STANDARD OF CONDUCT THE LAW REQUIRES.  THE
INSTRUCTIONS GIVEN BY THE TRIAL COURT IN THIS CASE, IT MUST BE
EMPHASIZED, WERE A VIRTUAL NULLITY, A MERE AUTHORIZATION TO CONVICT IF
THE JURY THOUGHT IT APPROPRIATE.  SUCH INSTRUCTIONS--REGARDLESS OF THE
BLAMEWORTHINESS OF THE DEFENDANT'S CONDUCT, REGARDLESS OF THE SOCIAL
VALUE OF THE FOOD, DRUG, AND COSMETIC ACT, AND REGARDLESS OF THE
IMPORTANCE OF CONVICTING THOSE WHO VIOLATE IT--HAVE NO PLACE IN OUR
JURISPRUDENCE. 

WE DEAL HERE WITH A CRIMINAL CONVICTION, NOT A CIVIL FORFEITURE.  IT
IS TRUE THAT THE CRIME WAS BUT A MISDEMEANOR AND THE PENALTY IN THIS
CASE LIGHT.  BUT UNDER THE STATUTE EVEN A FIRST CONVICTION CAN RESULT
IN IMPRISONMENT FOR A YEAR, AND A SUBSEQUENT OFFENSE IS A FELONY
CARRYING A PUNISHMENT OF UP TO THREE YEARS IN PRISON.  /2/  SO THE
STANDARDLESS CONVICTION APPROVED TODAY CAN SERVE IN ANOTHER CASE
TOMORROW TO SUPPORT A FELONY CONVICTION AND A SUBSTANTIAL PRISON
SENTENCE.  HOWEVER HIGHLY THE COURT MAY REGARD THE SOCIAL OBJECTIVES OF
THE FOOD, DRUG, AND COSMETIC ACT, THAT REGARD CANNOT SERVE TO JUSTIFY A
CRIMINAL CONVICTION SO WHOLLY ALIEN TO FUNDAMENTAL PRINCIPLES OF OUR
LAW. 

THE DOTTERWEICH CASE STANDS FOR TWO PROPOSITIONS, AND I ACCEPT THEM
BOTH.  FIRST, "ANY PERSON" WITHIN THE MEANING OF 21 U.S.C. SEC. 333 MAY
INCLUDE ANY CORPORATE OFFICER OR EMPLOYEE "STANDING IN RESPONSIBLE
RELATION" TO A CONDITION OR TRANSACTION FORBIDDEN BY THE ACT.  320
U.S., AT 281.  SECOND, A PERSON MAY BE CONVICTED OF A CRIMINAL OFFENSE
UNDER THE ACT EVEN IN THE ABSENCE OF "THE CONVENTIONAL REQUIREMENT FOR
CRIMINAL CONDUCT--, AWARENESS OF SOME WRONGDOING."  IBID. 

BUT BEFORE A PERSON CAN BE CONVICTED OF A CRIMINAL VIOLATION OF THIS
ACT, A JURY MUST FIND--AND MUST BE CLEARLY INSTRUCTED THAT IT MUST FIND
-EVIDENCE BEYOND A REASONABLE DOUBT THAT HE ENGAGED IN WRONGFUL CONDUCT
AMOUNTING AT LEAST TO COMMON-LAW NEGLIGENCE.  THERE WERE NO SUCH
INSTRUCTIONS, AND CLEARLY, THEREFORE, NO SUCH FINDING IN THIS CASE. 
/3/ 

FOR THESE REASONS, I CANNOT JOIN THE COURT IN AFFIRMING PARK'S
CRIMINAL CONVICTION. 

/1/ IN RESPONSE TO A REQUEST FOR FURTHER ILLUMINATION OF WHAT HE
MEANT BY "RESPONSIBLE RELATIONSHIP" THE DISTRICT JUDGE SAID: 

     " LET ME SAY THIS, SIMPLY AS TO THE DEFINITION OF THE

  'RESPONSIBLE RELATIONSHIP.'  DOTTWEWEICH AND SUBSEQUENT CASES
HAVE

INDICATED THIS REALLY IS A JURY QUESTION.  IT SAYS IT IS NOT EVEN

  SUBJECT TO BEING DEFINED BY THE COURT.  AS I HAVE INDICATED TO

  COUNSEL, I AM QUITE CANDID IN STATING THAT I DO NOT AGREE WITH

  THE DECISION; THEREFORE, I AM GOING TO STICK BY IT." 

/2/ SEE ANTE, AT 666 N. 10. 

/3/ THIS IS NOT TO SAY THAT PARK MIGHT NOT BE FOUND GUILTY BY A
PROPERLY INSTRUCTED JURY IN A NEW TRIAL.  BUT THAT, OF COURSE, IS NOT
THE POINT.  " HAD THE JURY CONVICTED ON PROPER INSTRUCTIONS IT WOULD BE
THE END OF THE MATTER.  BUT JURIES ARE NOT BOUND BY WHAT SEEMS
INESCAPABLE LOGIC TO JUDGES."  MORISSETTE V. UNITED STATES, 342 U.S.
246, 276. 

ALLAN ABBOTT TUTTLE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY
GENERAL KAUPER, HOWARD E. SHAPIRO, AND PETER BARTON HUTT. 

GREGORY M. HARVEY ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS ORVEL SEBRING. 

(BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JAMES F.
RILL, ROBERT A. COLLIER, AND JOHN HARDIN YOUNG FOR THE NATIONAL
ASSOCIATION OF FOOD CHAINS; BY H. THOMAS AUSTERN, H. EDWARD
DUNKELBERGER, JR., AND GEOFFREY RICHARD WAGNER SMITH FOR THE NATIONAL
CANNERS ASSN; BY ROBERT C. BARNARD AND CHARLES F. LETTOW FOR THE
SYNTHERTIC ORGANIC CHEMICAL MANUFACTURERS ASSN.; AND BY FEDERICK M.
ROWE, PAUL M. HYMAN, AND JONATHAN W. SLOAT FOR THE GROCERY
MANUFACTURERS OF AMERICA, INC.,
..END :



















MULLANEY V. WILBUR, 421 U.S. 684 


       MULLANEY ET AL. V. WILBUR

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT

        NO. 74 - 13.  ARGUED JANUARY 15, 1975--DECIDED JUNE 9,
1975;

           496 F.2D 1303, AFFIRMED. 


THE STATE OF MAINE REQUIRES A DEFENDANT CHARGED WITH MURDER, WHICH
UPON CONVICTION CARRIES A MANDATORY SENTENCE OF LIFE IMPRISONMENT, TO
PROVE THAT HE ACTED IN THE HEAT OF PASSION ON SUDDEN PROVOCATION IN
ORDER TO REDUCE THE HOMICIDE TO MANSLAUGHTER, IN WHICH CASE THE
PUNISHMENT IS A FINE OR IMPRISONMENT NOT EXCEEDING 20 YEARS.  HELD:
THE MAINE RULE DOES NOT COMPORT WITH THE REQUIREMENT OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT THAT THE PROSECUTION MUST PROVE
BEYOND A REASONABLE DOUBT EVERY FACT NECESSARY TO CONSTITUTE THE CRIME
CHARGED, IN RE WINSHIP, 397 U.S. 358.  TO SATISFY THAT REQUIREMENT THE
PROSECUTION IN A HOMICIDE CASE IN MAINE MUST PROVE BEYOND A REASONABLE
DOUBT THE ABSENCE OF THE HEAT OF PASSION ON SUDDEN PROVOCATION WHEN THE
ISSUE IS PROPERLY PRESENTED.  PP. 691 - 704. 

POWELL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  REHNQUIST,
J., FILED A CONCURRING OPINION, IN WHICH BURGER, C.J., JOINED, POST, P.
704. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE STATE OF MAINE REQUIRES A DEFENDANT CHARGED WITH MURDER TO PROVE
THAT HE ACTED "IN THE HEAT OF PASSION ON SUDDEN PROVOCATION" IN ORDER
TO REDUCE THE HOMICIDE TO MANSLAUGHTER.  WE MUST DECIDE WHETHER THIS
RULE COMPORTS WITH THE DUE PROCESS REQUIREMENT, AS DEFINED IN IN RE
WINSHIP, 397 U.S. 358, 364 (1970), THAT THE PROSECUTION PROVE BEYOND A
REASONABLE DOUBT EVERY FACT NECESSARY TO CONSTITUTE THE CRIME CHARGED. 

        I 

IN JUNE 1966 A JURY FOUND RESPONDENT STILLMAN E. WILBUR, JR., GUILTY
OF MURDER.  THE CASE AGAINST HIM RESTED ON HIS OWN PRETRIAL STATEMENT
AND ON CIRCUMSTANTIAL EVIDENCE SHOWING THAT HE FATALLY ASSAULTED CLAUDE
HEBERT IN THE LATTER'S HOTEL ROOM.  RESPONDENT'S STATEMENT, INTRODUCED
BY THE PROSECUTION, CLAIMED THAT HE HAD ATTACKED HEBERT IN A FRENZY
PROVOKED BY HEBERT'S HOMOSEXUAL ADVANCE.  THE DEFENSE OFFERED NO
EVIDENCE, BUT ARGUED THAT THE HOMICIDE WAS NOT UNLAWFUL SINCE
RESPONDENT LACKED CRIMINAL INTENT.  ALTERNATIVELY, WILBUR'S COUNSEL
ASSERTED THAT AT MOST THE HOMICIDE WAS MANSLAUGHTER RATHER THAN MURDER,
SINCE IT OCCURRED IN THE HEAT OF PASSION PROVOKED BY THE HOMOSEXUAL
ASSAULT. 

THE TRIAL COURT INSTRUCTED THE JURY THAT MAINE LAW RECOGNIZES TWO
KINDS OF HOMICIDE, MURDER AND MANSLAUGHTER, AND THAT THESE OFFENSES ARE
NOT SUBDIVIDED INTO DIFFERENT DEGREES.  THE COMMON ELEMENTS OF BOTH ARE
THAT THE HOMICIDE BE UNLAWFUL--I.E., NEITHER JUSTIFIABLE NOR EXCUSABLE
/1/ --AND THAT IT BE INTENTIONAL.  /2/ THE PROSECUTION IS REQUIRED TO
PROVE THESE ELEMENTS BY PROOF BEYOND A REASONABLE DOUBT, AND ONLY IF
THEY ARE SO PROVED IS THE JURY TO CONSIDER THE DISTINCTION BETWEEN
MURDER AND MANSLAUGHTER. 

IN VIEW OF THE EVIDENCE THE TRIAL COURT DREW PARTICULAR ATTENTION TO
THE DIFFERENCE BETWEEN MURDER AND MANSLAUGHTER.  AFTER READING THE
STATUTORY DEFINITIONS OF BOTH OFFENSES, /3/ THE COURT CHARGED THAT
"MALICE AFORETHOUGHT IS AN ESSENTIAL AND INDISPENSABLE ELEMENT OF THE
CRIME OF MURDER," APP. 40, WITHOUT WHICH THE HOMICIDE WOULD BE
MANSLAUGHTER.  THE JURY WAS FURTHER INSTRUCTED, HOWEVER, THAT IF THE
PROSECUTION ESTABLISHED THAT THE HOMICIDE WAS BOTH INTENTIONAL AND
UNLAWFUL, MALICE AFORETHOUGHT WAS TO BE CONCLUSIVELY IMPLIED UNLESS THE
DEFENDANT PROVED BY A FAIR PREPONDERANCE OF THE EVIDENCE THAT HE ACTED
IN THE HEAT OF PASSION ON SUDDEN PROVOCATION.  /4/ THE COURT EMPHASIZED
THAT "MALICE AFORETHOUGHT AND HEAT OF PASSION ON SUDDEN PROVOCATION ARE
TWO INCONSISTENT THINGS," ID., AT 62; THUS, BY PROVING THE LATTER THE
DEFENDANT WOULD NEGATE THE FORMER AND REDUCE THE HOMICIDE FROM MURDER
TO MANSLAUGHTER.  THE COURT THEN CONCLUDED ITS CHARGE WITH ELABORATE
DEFINITIONS OF "HEAT OF PASSION" /5/ AND "SUDDEN PROVOCATION."  /6/ 

AFTER RETIRING TO CONSIDER ITS VERDICT, THE JURY TWICE RETURNED TO
REQUEST FURTHER INSTRUCTION.  IT FIRST SOUGHT REINSTRUCTION ON THE
DOCTRINE OF IMPLIED MALICE AFORETHOUGHT, AND LATER ON THE DEFINITION OF
"HEAT OF PASSION."  SHORTLY AFTER THE SECOND REINSTRUCTION, THE JURY
FOUND RESPONDENT GUILTY OF MURDER. 

RESPONDENT APPEALED TO THE MAINE SUPREME JUDICIAL COURT, ARGUING
THAT HE HAD BEEN DENIED DUE PROCESS BECAUSE HE WAS REQUIRED TO NEGATE
THE ELEMENT OF MALICE AFORETHOUGHT BY PROVING THAT HE HAD ACTED IN THE
HEAT OF PASSION ON SUDDEN PROVOCATION.  HE CLAIMED THAT UNDER MAINE LAW
MALICE AFORETHOUGHT WAS AN ESSENTIAL ELEMENT OF THE CRIME OF MURDER--
INDEED THAT IT WAS THE SOLE ELEMENT DISTINGUISHING MURDER FROM
MANSLAUGHTER.  RESPONDENT CONTENDED, THEREFORE, THAT THIS COURT'S
DECISION IN WINSHIP REQUIRES THE PROSECUTION TO PROVE THE EXISTENCE OF
THAT ELEMENT BEYOND A REASONABLE DOUBT. 

THE MAINE SUPREME JUDICIAL COURT REJECTED THIS CONTENTION, /7/
HOLDING THAT IN MAINE MURDER AND MANSLAUGHTER ARE NOT DISTINCT CRIMES
BUT, RATHER, DIFFERENT DEGREES OF THE SINGLE GENERIC OFFENSE OF
FELONIOUS HOMICIDE.  STATE V. WILBUR, 278 A. 2D 139 (1971).  THE COURT
FURTHER STATED THAT FOR MORE THAN A CENTURY IT REPEATEDLY HAD HELD THAT
THE PROSECUTION COULD REST ON A PRESUMPTION OF IMPLIED MALICE
AFORETHOUGHT AND REQUIRE THE DEFENDANT TO PROVE THAT HE HAD ACTED IN
THE HEAT OF PASSION ON SUDDEN PROVOCATION IN ORDER TO REDUCE MURDER TO
MANSLAUGHTER.  WITH RESPECT TO WINSHIP, WHICH WAS DECIDED AFTER
RESPONDENT'S TRIAL, /8/ THE COURT NOTED THAT IT DID NOT ANTICIPATE THE
APPLICATION OF THE WINSHIP PRINCIPLE TO A FACTOR SUCH AS THE HEAT OF
PASSION ON SUDDEN PROVOCATION. 

RESPONDENT NEXT SUCCESSFULLY PETITIONED FOR A WRIT OF HABEAS CORPUS
IN FEDERAL DISTRICT COURT.  WILBUR V. ROBBINS, 349 F.SUPP.  149 (ME.
1972).  THE DISTRICT COURT RULED THAT UNDER THE MAINE STATUTES MURDER
AND MANSLAUGHTER ARE DISTINCT OFFENSES, NOT DIFFERENT DEGREES OF A
SINGLE OFFENSE.  THE COURT FURTHER HELD THAT "(MALICE AFORETHOUGHT IS
MADE THE DISTINGUISHING ELEMENT OF THE OFFENSE OF MURDER, AND IT IS
EXPRESSLY EXCLUDED AS AN ELEMENT OF THE OFFENSE OF MANSLAUGHTER."  ID.,
AT 153.  THUS, THE DISTRICT COURT CONCLUDED, WINSHIP REQUIRES THE
PROSECUTION TO PROVE MALICE AFORETHOUGHT BEYOND A REASONABLE DOUBT; IT
CANNOT RELY ON A PRESUMPTION OF IMPLIED MALICE, WHICH REQUIRES THE
DEFENDANT TO PROVE THAT HE ACTED IN THE HEAT OF PASSION ON SUDDEN
PROVOCATION. 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT AFFIRMED, SUBSCRIBING IN
GENERAL TO THE DISTRICT COURT'S ANALYSIS AND CONSTRUCTION OF MAINE
LAW.  473 F.2D 943 (1973).  ALTHOUGH RECOGNIZING THAT "WITHIN BROAD
LIMITS A STATE COURT MUST BE THE ONE TO INTERPRET ITS OWN LAWS," THE
COURT NEVERTHELESS RULED THAT "A TOTALLY UNSUPPORTABLE CONSTRUCTION
WHICH LEADS TO AN INVASION OF CONSTITUTIONAL DUE PROCESS IS A FEDERAL
MATTER."  ID., AT 945.  THE COURT OF APPEALS EQUATED MALICE
AFORETHOUGHT WITH "PREMEDITATION," ID., AT 947, AND CONCLUDED THAT
WINSHIP REQUIRES THE PROSECUTION TO PROVE THIS FACT BEYOND A REASONABLE
DOUBT. 

FOLLOWING THIS DECISION, THE MAINE SUPREME JUDICIAL COURT DECIDED
THE CASE OF STATE V. LAFFERTY, 309 A.2D 647 (1973), IN WHICH IT SHARPLY
DISPUTED THE FIRST CIRCUIT'S VIEW THAT IT WAS ENTITLED TO MAKE AN
INDEPENDENT DETERMINATION OF MAINE LAW.  THE MAINE COURT ALSO
REAFFIRMED ITS EARLIER OPINION THAT MURDER AND MANSLAUGHTER ARE
PUNISHEMENT CATEGORIES OF THE SINGLE OFFENSE OF FELONIOUS HOMICIDE. 
ACCORDINGLY, IF THE PROSECUTION PROVES A FELONIOUS HOMICIDE THE BURDEN
SHIFTS TO THE DEFENDANT TO PROVE THAT HE ACTED IN THE HEAT OF PASSION
ON SUDDEN PROVOCATION IN ORDER TO RECEIVE THE LESSER PENALTY PRESCRIBED
FOR MANSLAUGHTER.  /9/ 

IN VIEW OF THE LAFFERTY DECISION WE GRANTED CERTIORARI IN THIS CASE
AND REMANDED TO THE COURT OF APPEALS FOR RECONSIDERATION.  414 U.S.
1139 (1974).  ON REMAND, THAT COURT AGAIN APPLIED WINSHIP, THIS TIME TO
THE MAINE LAW AS CONSTRUED BY THE MAINE SUPREME JUDICIAL COURT.  496
F.2D 1303 (1974).  LOOKING TO THE "SUBSTANCE" OF THAT LAW, THE COURT
FOUND THAT THE PRESENCE OR ABSENCE OF THE HEAT OF PASSION ON SUDDEN
PROVOCATION RESULTS IN SIGNIFICANT DIFFERENCES IN THE PENALTIES AND
STIGMA ATTACHING TO CONVICTION.  FOR THESE REASONS THE COURT OF APPEALS
HELD THAT THE PRINCIPLES ENUNCIATED IN WINSHIP CONTROL, AND THAT TO
ESTABLISH MURDER THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT
THAT THE DEFENDANT DID NOT ACT IN THE HEAT OF PASSION ON SUDDEN
PROVOCATION. 

BECAUSE OF THE IMPORTANCE OF THE ISSUES PRESENTED, WE AGAIN GRAINTED
CERTIORARI.  419 U.S. 823 (1974).  WE NOW AFFIRM. 

        II 

WE REJECT AT THE OUTSET RESPONDENT'S POSITION THAT WE FOLLOW THE
ANALYSIS OF THE DISTRICT COURT AND THE INITIAL OPINION OF THE FIRST
CIRCUIT, BOTH OF WHICH HELD THAT MURDER AND MANSLAUGHTER ARE DISTINCT
CRIMES IN MAINE, AND THAT MALICE AFORETHOUGHT IS A FACT ESSENTIAL TO
THE FORMER AND ABSENT IN THE LATTER.  RESPONDENT ARGUES THAT THE MAINE
SUPREME JUDICIAL COURT'S CONSTRUCTION OF STATE LAW SHOULD NOT BE DEEMED
BINDING ON THIS COURT SINCE IT MARKS A REDICAL DEPARTURE FROM PRIOR
LAW, /10/ LEADS TO INTERNALLY INCONSISTENT RESULTS, AND IS A
TRANSPARENT EFFORT TO CIRCUMVENT WINSHIP.  THIS COURT, HOWEVER,
REPEATEDLY HAS HELD THAT STATE COURTS ARE THE ULTIMATE EXPOSITORS OF
STATE LAW, SEE, E.G., MURDOCK V. CITY OF MEMPHIS, 20 WALL.  590 (1875);
WINTERS V. NEW YORK, 333 U.S. 507 (1948), AND THAT WE ARE BOUND BY
THEIR CONSTRUCTIONS EXCEPT IN EXTREME CIRCUMSTANCES NOT PRESENT HERE. 
/11/ ACCORDINGLY, WE ACCEPT AS BINDING THE MAINE SUPREME JUDICIAL
COURT'S CONSTRUCTION OF STATE HOMICIDE LAW. 

        III 

THE MAINE LAW OF HOMICIDE, AS IT BEARS ON THIS CASE, CAN BE STATED
SUCCINCTLY:  ABSENT JUSTIFICATION OR EXCUSE, ALL INTENTIONAL OR
CRIMINALLY RECKLESS KILLINGS ARE FELONIOUS HOMICIDES.  FELONIOUS
HOMICIDE IS PUNISHED AS MURDER--I.E., BY LIFE IMPRISONMENT--UNLESS THE
DEFENDANT PROVES BY A FAIR PREPONDERANCE OF THE EVIDENCE THAT IT WAS
COMMITTED IN THE HEAT OF PASSION ON SUDDEN PROVOCATION, IN WHICH CASE
IT IS PUNISHED AS MANSLAUGHTER--I.E., BY A FINE NOT TO EXCEED $1,000 OR
BY IMPRISONMENT NOT TO EXCEED 20 YEARS.  THE ISSUE IS WHETHER THE MAINE
RULE REQUIRING THE DEFENDANT TO PROVE THAT HE ACTED IN THE HEAT OF
PASSION ON SUDDEN PROVOCATION ACCORDS WITH DUE PROCESS. 

        A 

OUR ANALYSIS MAY BE ILLUMINATED IF THIS ISSUE IS PLACED IN
HISTORICAL CONTEXT.  /12/ AT EARLY COMMON LAW ONLY THOSE HOMICIDES
COMMITTED IN THE ENFORCEMENT OF JUSTICE WERE CONSIDERED JUSTIFIABLE;
ALL OTHERS WERE DEEMED UNLAWFUL AND WERE PUNISHED BY DEATH.  GRADUALLY,
HOWEVER, THE SEVERITY OF THE COMMON-LAW PUNISHMENT FOR HOMICIDE
ABATED.  BETWEEN THE 13TH AND 16TH CENTURIES THE CLASS OF JUSTIFIABLE
HOMICIDES EXPANDED TO INCLUDE, FOR EXAMPLE, ACCIDENTAL HOMICIDES AND
THOSE COMMITTED IN SELF-DEFENSE.  CONCURRENTLY, THE WIDESPREAD USE OF
CAPITAL PUNISHMENT WAS AMELIORATED FURTHER BY EXTENSION OF THE
ECCLESIASTIC JURISDICTION.  ALMOST ANY PERSON ABLE TO READ WAS ELIGIBLE
FOR "BENEFIT OF CLERGY," A PROCEDURAL DEVICE THAT EFFECTED A TRANSFER
FROM THE SECULAR TO THE ECCLESIASTIC JURISDICTION.  AND UNDER
ECCLESIASTIC LAW A PERSON WHO COMMITTED AN UNLAWFUL HOMICIDE WAS NOT
EXECUTED; INSTEAD HE RECEIVED A ONE-YEAR SENTENCE, HAD HIS THUMB
BRANDED AND WAS REQUIRED TO FORFEIT HIS GOODS.  AT THE TURN OF THE 16TH
CENTURY, ENGLISH RULERS, CONCERNED WITH THE ACCRETION OF ECCLESIASTIC
JURISDICTION AT THE EXPENSE OF THE SECULAR, ENACTED A SERIES OF
STATUTES ELIMINATING THE BENEFIT OF CLERGY IN ALL CASES OF "MURDER OF
MALICE PREPENSED."  /13/  UNLAWFUL HOMICIDES THAT WERE COMMITTED
WITHOUT SUCH MALICE WERE DESIGNATED "MANSLAUGHTER," AND THEIR
PERPETRATIRS REMAINED ELIGIBLE FOR THE BENEFIT OF CLERGY. 

EVEN AFTER ECCLESIASTIC JURISDICTION WAS ELIMINATED FOR ALL SECULAR
OFFENSES THE DISTINCTION BETWEEN MURDER AND MANSLAUGHTER PERSISTED.  IT
WAS SAID THAT "MANSLAUGHTER, WHEN VOLUNTARY, /14/ ARISES FROM THE
SUDDEN HEAT OF THE PASSIONS, MURDER FROM THE WICKEDNESS OF THE HEART." 
4 W. BLACKSTONE, COMMENTARIES 190.  MALICE AFORETHOUGHT WAS DESIGNATED
AS THE ELEMENT THAT DISTINGUSIHED THE TWO CRIMES, BUT IT WAS RECOGNIZED
THAT SUCH MALICE COULD BE IMPLIED BY LAW AS WELL AS PROVED BY
EVIDENCE.  ABSENT PROOF THAT AN UNLAWFUL HOMICIDE RESULTED FROM "SUDDEN
AND SUFFICIENTLY VIOLENT PROVOCATION," THE HOMICIDE WAS "PRESUMED TO BE
MALICIOUS."  /15/ ID., AT 201.  IN VIEW OF THIS PRESUMPTION, THE EARLY
ENGLISH AUTHORITIES, RELYING ON THE CASE OF THE KING V. ONEBY, 92 ENG.
REP. 465 (K.B. 1727), HELD THAT ONCE THE PROSECUTION PROVED THAT THE
ACCUSED HAD COMMITTED THE HOMICIDE, IT WAS "INCUMBENT UPON THE PRISONER
TO MAKE OUT, TO THE SATISFACTION OF THE COURT AND JURY" "ALL . . .
CIRCUMSTANCES OF JUSTIFICATION, EXCUSE, OR ALLEVIATION."  4 W.
BLACKSTONE, COMMENTARIES 201.  SEE M. FOSTER, CROWN LAW 255 (1962). 
THUS, AT COMMON LAW THE BURDEN OF PROVING HEAT OF PASSION ON SUDDEN
PROVOCATION APPEARS TO HAVE RESTED ON THE DEFENDANT.  /16/ 

IN THIS COUNTRY THE CONCEPT OF MALICE AFORETHOUGHT TOOK ON TWO
DISTINCT MEANINGS: IN SOME JURISDICTIONS IT CAME TO SIGNIFY A
SUBSTANTIVE ELEMENT OF INTENT, REQUIRING THE PROSECUTION TO PROVE THAT
THE DEFENDANT INTENDED TO KILL OR TO INFLICT GREAT BODILY HARM; IN
OTHER JURISDICTIONS IT REMAINED A POLICY PRESUMPTION, INDICATING ONLY
THAT ABSENT PROOF TO THE CONTRARY A HOMICIDE WAS PRESUMED NOT TO HAVE
OCCURRED IN THE HEAT OF PASSION.  SEE STATE V. ROLLINS, 295 A.2D 914,
918 - 919 (ME. 1972).  SEE GENERALLY PERKINS, A. RE-EXAMINATION OF
MALICE AFORETHOUGHT, 43 YALE L.J. 537, 548 - 549, 566 - 568 (1934). 
/17/ IN A LANDMARK CASE, COMMONWEALTH V. YORK, 50 MASS. (9 MET.)  93
(1845), CHIEF JUSTICE SHAW OF THE MASSACHUSETTS SUPREME JUDICIAL COURT
HELD THAT THE DEFENDANT WAS REQUIRED TO NEGATE MALICE AFORETHOUGHT BY
PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT HE ACTED IN THE HEAT OF
PASSION.  /18/  INITIALLY, YORK WAS ADOPTED IN MAINE /19/ AS WELL AS
SEVERAL OTHER JURISDICTIONS.  /20/ IN 1895, HOWEVER, IN THE CONTEXT OF
DECIDING A QUESTION OF FEDERAL CRIMINAL PROCEDURE, THIS COURT
EXPLICITLY CONSIDERED AND UNANIMOUSLY REJECTED THE GENERAL APPROACH
ARTICULATED IN YORK.  DAVIS V. UNITED STATES, 160 U.S. 469.  /21/ AND,
IN THE PAST HALF CENTURY, THE LARGE MAJORITY OF STATES HAVE ABANDONED
YORK AND NOW REQUIRE THE PROSECUTION TO PROVE THE ABSENCE OF THE HEAT
OF PASSION ON SUDDEN PROVOCATION BEYOND A REASONABLE DOUBT.  SEE W. LA
FAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 539 - 540 (1972).  /22/ 
THIS HISTORICAL REVIEW ESTABLISHES TWO IMPORTANT POINTS.  FIRST, THE
FACT AT ISSUE HERE--THE PRESENCE OR ABSENCE OF THE HEAT OF PASSION ON
SUDDEN PROVOCATION--HAS BEEN, ALMOST FROM THE INCEPTION OF THE COMMON
LAW OF HOMICIDE, THE SINGLE MOST IMPORTANT FACTOR IN DETERMINING THE
DEGREE OF CULPABILITY ATTACHING TO AN UNLAWFUL HOMICIDE.  AND, SECOND,
THE CLEAR TREND HAS BEEN TOWARD REQUIRING THE PROSECUTION TO BEAR THE
ULTIMATE BURDEN OF PROVING THIS FACT.  SEE GENERALLY FLETCHER, SUPRA,
N. 16; H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 137 - 139
(1968).            B 

PETITIONERS, THE WARDEN OF THE MAINE PRISON AND THE STATE OF MAINE,
ARGUE THAT DESPITE THESE CONSIDERATIONS WINSHIP SHOULD NOT BE EXTENDED
TO THE PRESENT CASE.  THEY NOTE THAT AS A FORMAL MATTER THE ABSENCE OF
THE HEAT OF PASSION ON SUDDEN PROVOCATION IS NOT A "FACT NECESSARY TO
CONSTITUTE THE CRIME" OF FELONIOUS HOMICIDE IN MAINE.  IN RE WINSHIP,
397 U.S., AT 364 (EMPHASIS SUPPLIED).  THIS DISTINCTION IS RELEVANT,
ACCORDING TO PETITIONERS, BECAUSE IN WINSHIP THE FACTS AT ISSUE WERE
ESSENTIAL TO ESTABLISH CRIMINALITY IN THE FIRST INSTANCE, WHEREAS THE
FACT IN QUESTION HERE DOES NOT COME INTO PLAY UNTIL THE JURY ALREADY
HAS DETERMINED THAT THE DEFENDANT IS GUILTY AND MAY BE PUNISHED AT
LEAST FOR MANSLAUGHTER.  IN THIS SITUATION, PETITIONERS MAINTAIN, THE
DEFENDANT'S CRITICAL INTERESTS IN LIBERTY AND REPUTATION ARE NO LONGER
OF PARAMOUNT CONCERN SINCE, IRRESPECTIVE OF THE PRESENCE OR ABSENCE OF
THE HEAT OF PASSION ON SUDDEN PROVOCATION, HE IS LIKELY TO LOSE HIS
LIBERTY AND CERTAIN TO BE STIGMATIZED.  /23/ IN SHORT, PETITIONERS
WOULD LIMIT WINSHIP TO THOSE FACTS WHICH, IF NOT PROVED, WOULD WHOLLY
EXONERATE THE DEFENDANT 

THIS ANALYSIS FAILS TO RECOGNIZE THAT THE CRIMINAL LAW OF MAINE,
LIKE THAT OF OTHER JURISDICTIONS, IS CONCERNED NOT ONLY WITH GUILT OR
INNOCENCE IN THE ABSTRACT BUT ALSO WITH THE DEGREE OF CRIMINAL
CULPABILITY.  MAINE HAS CHOSEN TO DISTINGUISH THOSE WHO KILL IN THE
HEAT OF PASSION FROM THOSE WHO KILL IN THE ABSENCE OF THIS FACTOR. 
BECAUSE THE FORMER ARE LESS "BLAMEWORTHY)," STATE V. LAFFERTY, 309
A.2D, AT 671, 673 (CONCURRING OPINION), THEY ARE SUBJECT TO
SUBSTANTIALLY LESS SEVERE PENALTIES.  BY DRAWING THIS DISTINCTION,
WHILE REFUSING TO REQUIRE THE PROSECUTION TO ESTABLISH BEYOND A
REASONABLE DOUBT THE FACT UPON WHICH IT TURNS, MAINE DENIGRATES THE
INTERESTS FOUND CRITICAL IN WINSHIP. 

THE SAFEGUARDS OF DUE PROCESS ARE NOT RENDERED UNAVAILING SIMPLY
BECAUSE A DETERMINATION MAY ALREADY HAVE BEEN REACHED THAT WOULD
STIGMATIZE THE DEFENDANT AND THAT MIGHT LEAD TO A SIGNIFICANT
IMPAIRMENT OF PERSONAL LIBERTY.  THE FACT REMAINS THAT THE CONSEQUENCES
RESULTING FROM A VERDICT OF MURDER, AS COMPARED WITH A VERDICT OF
MANSLAUGHTER, DIFFER SIGNIFICANTLY.  INDEED, WHEN VIEWED IN TERMS OF
THE POTENTIAL DIFFERENCE IN RESTRICTIONS OF PERSONAL LIBERTY ATTENDANT
TO EACH CONVICTION, THE DISTINCTION ESTABLISHED BY MAINE BETWEEN MURDER
AND MANSLAUGHTER MAY BE OF GREATER IMPORTANCE THAN THE DIFFERENCE
BETWEEN GUILT OR INNOCENCE FOR MANY LESSER CRIMES. 

MOREOVER, IF WINSHIP WERE LIMITED TO THOSE FACTS THAT CONSTITUTE A
CRIME AS DEFINED BY STATE LAW, A STATE COULD UNDERMINE MANY OF THE
INTERESTS THAT DECISION SOUGHT TO PROTECT WITHOUT EFFECTING ANY
SUBSTANTIVE CHANGE IN ITS LAW.  IT WOULD ONLY BE NECESSARY TO REDEFINE
THE ELEMENTS THAT CONSTITUTE DIFFERENT CRIMES, CHARACTERIZING THEM AS
FACTORS THAT BEAR SOLELY ON THE EXTENT OF PUNISHEMENT.  AN EXTREME
EXAMPLE OF THIS APPROACH CAN BE FASHIONED FROM THE LAW CHALLENGED IN
THIS CASE.  MAINE DIVIDES THE SINGLE GENERIC OFFENSE OF FELONIOUS
HOMICIDE INTO THREE DISTINCT PUNISHMENT CATEGORIES--MURDER, VOLUNTARY
MANSLAUGHTER, AND INVOLUNTARY MANSLAUGHTER.  ONLY THE FIRST TWO OF
THESE CATEGORIES REQUIRE THAT THE HOMICIDAL ACT EITHER BE INTENTIONAL
OR THE RESULT OF CRIMINALLY RECKLESS CONDUCT.  SEE STATE V. LAFFERTY,
309 A.2D, AT 670 - 672 (CONCURRING OPINION).  BUT UNDER MAINE LAW THESE
FACTS OF INTENT ARE NOT GENERAL ELEMENTS OF THE CRIME OF FELONIOUS
HOMICIDE.  SEE BRIEF FOR PETITIONERS 10 N. 5.  INSTEAD, THEY BEAR ONLY
ON THE APPROPRIATE PUNISHMENT CATEGORY.  THUS, IF PETITIONERS' ARGUMENT
WERE ACCEPTED, MAINE COULD IMPOSE A LIFE SENTENCE FOR ANY FELONIOUS
HOMICIDE--EVEN THOSE THAT TRADITIONALLY MIGHT BE CONSIDERED INVOLUNTARY
MANSLAUGHTER--, UNLESS THE DEFENDANT WAS ABLE TO PROVE THAT HIS ACT WAS
NEITHER INTENTIONAL NOR CRIMINALLY RECKLESS.  /24/ 

WINSHIP IS CONCERNED WITH SUBSTANCE RATHER THAN THIS KIND OF
FORMALISM.  /25/ THE RATIONALE OF THAT CASE REQUIRES AN ANALYSIS THAT
LOOKS TO THE "OPERATION AND EFFECT OF THE LAW AS APPLIED AND ENFORCED
BY THE STATE," ST. LOUIS S.W.R. CO. V. ARKANSAS, 235 U.S. 350, 362
(1914), AND TO THE INTERESTS OF BOTH THE STATE AND THE DEFENDANT AS
AFFECTED BY THE ALLOCATION OF THE BURDEN OF PROOF. 

IN WINSHIP THE COURT EMPHASIZED THE SOCIETAL INTERESTS IN THE
RELIABILITY OF JURY VERDICTS:  /26/

     " THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT HAS (A)

  VITAL ROLE IN OUR CRIMINAL PROCEDURE FOR COGENT REASONS.  THE

  ACCUSED DURING A CRIMINAL PROSECUTION HAS AT STAKE INTERESTS OF

IMMENSE IMPORTANCE, BOTH BECAUSE OF THE POSSIBILITY THAT HE MAY

  LOSE HIS LIBERTY UPON CONVICTION AND BECAUSE OF THE CERTAINTY

  THAT HE WOULD BE STIGMATIZED BY THE CONVICTION.  . . . 

     " MOREOVER, USE OF THE REASONABLE-DOUBT STANDARD IS

  INDISPENSABLE TO COMMAND THE RESPECT AND CONFIDENCE OF THE

  COMMUNITY IN APPLICATIONS OF THE CRIMINAL LAW.  IT IS CRITICAL

  THAT THE MORAL FORCE OF THE CRIMINAL LAW NOT BE DILUTED BY A

  STANDARD OF PROOF THAT LEAVES PEOPLE IN DOUBT WHETHER INNOCENT

  MEN ARE BEING CONDEMNED."  397 U.S., AT 363, 364. 

THESE INTERESTS ARE IMPLICATED TO A GREATER DEGREE IN THIS CASE THAN
THEY WERE IN WINSHIP ITSELF.  PETITIONER THERE FACED AN 18-MONTH
SENTENCE, WITH A MAXIMUM POSSIBLE EXTENSION OF AN ADDITONAL FOUR AND
ONE-HALF YEARS, ID., AT 360, WHEREAS RESPONDENT HERE FACES A
DIFFERENTIAL IN SENTENCING RANGING FROM A NOMINAL FINE TO A MANDATORY
LIFE SENTENCE.  BOTH THE STIGMA TO THE DEFENDANT AND THE COMMUNITY'S
CONFIDENCE IN THE ADMINISTRATION OF THE CRIMINAL LAW ARE ALSO OF
GREATER CONSEQUENCE IN THIS CASE, /27/ SINCE THE ADJUDICATION OF
DELINQUENCY INVOLVED IN WINSHIP WAS "BENEVOLENT" IN INTENTION, SEEKING
TO PROVIDE "A GENEROUSLY CONCEIVED PROGRAM OF COMPASSIONATE
TREATMENT."  ID., AT 376 (BURGER, C.J., DISSENTING). 

NOT ONLY ARE THE INTERESTS UNDERLYING WINSHIP IMPLICATED TO A
GREATER DEGREE IN THIS CASE, BUT IN ONE RESPECT THE PROTECTION AFFORDED
THOSE INTERESTS IS LESS HERE.  IN WINSHIP THE ULTIMATE BURDEN OF
PERSUASION REMAINED WITH THE PROSECUTION, ALTHOUGH THE STANDARD HAD
BEEN REDUCED TO PROOF BY A FAIR PREPONDERANCE OF THE EVIDENCE.  IN THIS
CASE, BY CONTRAST, THE STATE HAS AFFIRMATIVELY SHIFTED THE BURDEN OF
PROOF TO THE DEFENDANT.  THE RESULT, IN A CASE SUCH AS THIS ONE WHERE
THE DEFENDANT IS REQUIRED TO PROVE THE CRITICAL FACT IN DISPUTE, IS TO
INCREASE FURTHER THE LIKELIHOOD OF AN ERRONEOUS MURDER CONVICTION. 
SUCH A RESULT DIRECTLY CONTRAVENES THE PRINCIPLE ARTICULATED IN SPEISER
V. RANDALL, 357 U.S. 513, 525 - 526 (1958): 

     "(WHERE ONE PARTY HAS AT STAKE AN INTEREST OF TRANSCENDING

  VALUE--AS A CRIMINAL DEFENDANT HIS LIBERTY--THE) MARGIN OF ERROR

  IS REDUCED AS TO HIM BY THE PROCESS OF PLACING ON THE

  (PROSECUTION) THE BURDEN . . . OF PERSUADING THE FACTFINDER AT

  THE CONCLUSION OF THE TRIAL.  . . ." 

SEE ALSO IN RE WINSHIP, 397 U.S., AT 370 - 372 (HARLAN, J.,
CONCURRING). 

        C 

IT HAS BEEN SUGGESTED, STATE V. WILBUR, 278 A.2D, AT 145, THAT
BECAUSE OF THE DIFFICULTIES IN NEGATING AN ARGUMENT THAT THE HOMICIDE
WAS COMMITTED IN THE HEAT OF PASSION THE BURDEN OF PROVING THIS FACT
SHOULD REST ON THE DEFENDANT.  NO DOUBT THIS IS OFTEN A HEAVY BURDEN
FOR THE PROSECUTION TO SATISFY.  THE SAME MAY BE SAID OF THE
REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT OF MANY CONTROVERTED
FACTS IN A CRIMINAL TRIAL.  BUT THIS IS THE TRADITIONAL BURDEN WHICH
OUR SYSTEM OF CRIMINAL JUSTICE DEEMS ESSENTIAL. 

INDEED, THE MAINE SUPREME JUDICIAL COURT ITSELF ACKNOWLEDGED THAT
MOST STATES REQUIRE THE PROSECUTION TO PROVE THE ABSENCE OF PASSION
BEYOND A REASONABLE DOUBT.  ID., AT 146.  /28/ MOREOVER, THE DIFFICULTY
OF MEETING SUCH AN EXACTING BURDEN IS MITIGATED IN MAINE WHERE THE FACT
AT ISSUE IS LARGELY AN "OBJECTIVE, RATHER THAN A SUBJECTIVE, BEHAVIORAL
CRITERION."  STATE V. ROLLINS, 295 A.2D, AT 920.  IN THIS RESPECT,
PROVING THAT THE DEFENDANT DID NOT ACT IN THE HEAT OF PASSION ON SUDDEN
PROVOCATION IS SIMILAR TO PROVING ANY OTHER ELEMENT OF INTENT; IT MAY
BE ESTABLISHED BY ADDUCING EVIDENCE OF THE FACTUAL CIRCUMSTANCES
SURROUNDING THE COMMISSION OF THE HOMICIDE.  AND ALTHOUGH INTENT IS
TYPICALLY CONSIDERED A FACT PECULIARLY WITHIN THE KNOWLEDGE OF THE
DEFENDANT, THIS DOES NOT, AS THE COURT HAS LONG RECOGNIZED, JUSTIFY
SHIFTING THE BURDEN TO HIM.  SEE TOT V. UNITED STATES, 319 U.S. 463,
469 (1943); LEARY V. UNITED STATES, 395 U.S. 6, 45 (1969). 

NOR IS THE REQUIREMENT OF PROVING A NEGATIVE UNIQUE IN OUR SYSTEM OF
CRIMINAL JURISPRUDENCE.  /29/ MAINE ITSELF REQUIRES THE PROSECUTION TO
PROVE THE ABSENCE OF SELFDEFENSE BEYOND A REASONABLE DOUBT.  SEE STATE
V. MILLETT, 273 A.2D 504 (1971).  /30/ SATISFYING THIS BURDEN IMPOSES
AN OBLIGATION THAT, IN ALL PRACTICAL EFFECT, IS IDENTICAL TO THE BURDEN
INVOLVED IN NEGATING THE HEAT OF PASSION ON SUDDEN PROVOCATION.  THUS,
WE DISCERN NO UNIQUE HARDSHIP ON THE PROSECUTION THAT WOULD JUSTIFY
REQUIRING THE DEFENDANT TO CARRY THE BURDEN OF PROVING A FACT SO
CRITICAL TO CRIMINAL CULPABILITY.  /31/

        IV 

MAINE LAW REQUIRES A DEFENDANT TO ESTABLISH BY A PREPONDERANCE OF
THE EVIDENCE THAT HE ACTED IN THE HEAT OF PASSION ON SUDDEN PROVOCATION
IN ORDER TO REDUCE MURDER TO MANSLAUGHTER.  UNDER THIS BURDEN OF PROOF
A DEFENDANT CAN BE GIVEN A LIFE SENTENCE WHEN THE EVIDENCE INDICATES
THAT IT IS AS LIKELY AS NOT THAT HE DESERVES A SIGNIFICANTLY LESSER
SENTENCE.  THIS IS AN INTOLERABLE RESULT IN A SOCIETY WHERE, TO
PARAPHRASE MR. JUSTICE HARLAN, IT IS FAR WORSE TO SENTENCE ONE GUILTY
ONLY OF MANSLAUGHTER AS A MURDERER THAN TO SENTENCE A MURDERER FOR THE
LESSER CRIME OF MANSLAUGHTER.  IN RE WINSHIP, 397 U.S., AT 372
(CONCURRING OPINION).  WE THEREFORE HOLD THAT THE DUE PROCESS CLAUSE
REQUIRES THE PROSECUTION TO PROVE BEYOND A REASONABLE DOUBT THE ABSENCE
OF THE HEAT OF PASSION ON SUDDEN PROVOCATION WHEN THE ISSUE IS PROPERLY
PRESENTED IN A HOMICIDE CASE.  ACCORDINGLY, THE JUDGMENT BELOW IS
AFFIRMED. 

/1/ AS EXAMPLES OF JUSTIFIABLE OR EXCUSABLE HOMICIDES, THE COURT
MENTIONED A SOLDIER IN BATTLE, A POLICEMEN IN CERTAIN CIRCUMSTANCES,
AND AN INDIVIDUAL ACTING IN SELF-DEFENSE.  APP. 38. 

/2/ THE COURT ELABORATED THAT AN INTENTIONAL HOMICIDE REQUIRED THE
JURY TO FIND "EITHER THAT THE DEFENDANT INTENDED DEATH, OR THAT HE
INTENDED AN ACT WHICH WAS CALCULATED AND SHOULD HAVE BEEN UNDERSTOOD BY
(A) PERSON OF REASON TO BE ONE LIKELY TO DO GREAT BODILY HARM AND THAT
DEATH RESULTED."  ID., AT 37. 

/3/ THE MAINE MURDER STATUTE, ME. REV. STAT. ANN., TIT. 17, SEC.
2651 (1964), PROVIDES: 

" WHOEVER UNLAWFULLY KILLS A HUMAN BEING WITH MALICE AFORETHOUGHT,
EITHER EXPRESS OR IMPLIED, IS GUILTY OF MURDER ANS SHALL BE PUNISHED BY
IMPRISONMENT FOR LIFE." 

THE MANSLAUGHTER STATUTE, ME. REV. STAT. ANN., TIT. 17, SEC. 2551
(1964), IN RELEVANT PART PROCIDES: 

" WHOEVER UNLAWFULLY KILLS A HUMAN BEING IN THE HEAT OF PASSION, ON
SUDDEN PROVOCATION, WITHOUT EXPRESS OR IMPLIED MALICE AFORETHOUGHT . .
. SHALL BE PUNISHED BY A FINE OF NOT MORE THAN $1,000 OR BY
IMPRISONMENT FOR NOT MORE THAN 20 YEARS.  . . ." 

/4/ THE TRIAL COURT ALSO EXPLAINED THE CONCEPT OF EXPRESS MALICE
AFORETHOUGHT, WHICH REQUIRED A "PREMEDITATED DESIGN TO KILL" THEREBY
MANIFESTING A "GENERAL MALIGNANCY AND DISREGARD FOR HUMAN LIFE WHICH
PROCEEDS FROM A HEART VOID OF SOCIAL DUTY AND FATALLY BENET ON
MISCHIEF."  APP.  40 - 42.  DESPITE THIS INSTRUCTION, THE COURT
REPEATEDLY MADE CLEAR THAT EXPRESS MALICE NEED NOT BE ESTABLISHED SINCE
MALICE WOULD BE IMPLIED UNLESS THE DEFENDANT PROVED THAT HE ACTED IN
THE HEAT OF PASSION.  HENCE, THE INSTRUCTION ON EXPRESS MALICE APPEARS
TO HAVE BEEN WHOLLY UNNECESSARY, AS THE MAINE SUPREME JUDICIAL COURT
SUBSEQUENTLY HELD.  STATE V. LAFFERTY, 309 A.2D 647 (1973).  SEE ALSO
N. 10, INFRA. 

/5/ HEAT OF PASSION . . . MEANS THAT AT THE TIME OF THE ACT THE
REASON IS DISTURBED OR OBSCURED BY PASSION TO AN EXTENT WHICH MIGHT
(MAKE) ORDINARY MEN OF FAIR, AVERAGE DISPOSITON LIABLE TO ACT
IRRATIONALLY WITHOUT DUE DELIBERATION OR REFLECTION, AND FROM PASSION
RATHER THAN JUDGMENT."  APP.  47. 

/6/ "(HEAT OF PASSION WILL NOT AVAIL UNLESS UPON SUDDEN
PROVOCATION.  SUDDEN MEANS HAPPENING WITHOUT PREVIOUS NOTICE OR WITH
VERY BRIEF NOTICE; COMING UNEXPECTEDLY, PRECIPITATED, OR UNLOOKED FOR. 
. . . IT IS NOT EVERY PROVOCATION, IT IS NOT EVERY RAGE OF PASSION THAT
WILL REDUCE A KILLING FROM MURDER TO MANSLAUGHTER.  THE PROVOCATION
MUST BE OF SUCH A CHARACTER AND SO CLOSE UPON THE ACT OF KILLING, THAT
FOR A MOMENT A PERSON COULD BE--THAT FOR A MOMENT THE DEFENDANT COULD
BE CONSIDERED AS NOT BEING THE MASTER OF HIS OWN UNDERSTANDING."  ID.,
AT 47 - 48. 

/7/ RESPONDENT DID NOT OBJECT TO THE RELEVANT INSTRUCTIONS AT
TRIAL.  THE MAINE SUPREME COURT NEVERTHELESS FOUND THE ISSUE COGNIZABLE
ON APPEAL BECAUSE IT HAD "CONSTITUTIONAL IMPLICATIONS."  STATE V.
WILLBUR, 278 A.2D 139, 144 (1971). 

/8/ THE MAINE COURT CONCLUDED THAT IN RE WINSHIP 397 U.S. 358
(1970), SHOULD NOT BE APPLIED RETROACTIVELY.  WE SUBSEQUENTLY DECIDED,
HOWEVER, THAT WINSHIP SHOULD BE GIVEN COMPLETE RETROACTIVE EFFECT. 
IVAN V. CITY OF NEW YORK, 407 U.S. 203 (1972).     /9/ THE MAINE COURT
EMPHASIZED THAT, CONTRARY TO THE VIEW OF THE COURT OF APPEALS FOR THE
FIRST CIRCUIT, MALICE AFORETHOUGHT CONNOTES NO SUBSTANTIVE FACT (SUCH
AS PREMEDITATION), BUT RATHER IS SOLELY A POLICY PRESUMPTION.  UNDER
ITS INTERPRETATION OF STATE LAW, THE MAINE COURT WOULD REQUIRE PROOF OF
THE SAME ELEMENT OF INTENT FOR BOTH MURDER AND MANSLAUGHTER, THE
DISTINCTION BEING THAT IN THE LATTER CASE THE INTENT RESULTS FROM A
SUDDEN PROVOCATION WHICH LEADS THE DEFENDANT TO ACT IN THE HEAT OF
PASSION.  309 A.2D, AT 670 - 671 (CONCURRING OPINION.). 

/10/ RESPONDENT RELIES ON BOUIE V. CITY OF COLUMBIA, 378 U.S. 347
(1964).  IN THAT CASE A STATE SUPREME COURT'S REINTERPRETATION OF A
CRIMINAL STATUTE WAS SO NOVEL AS TO BE "UNFORESEEABLE" AND THEREFORE
DEPRIVED THE DEFENDANTS OF FAIR NOTICE OF THE POSSIBLE CRIMINALITY OF
THEIR ACTS AT THE TIME THEY WERE COMMITTED.  THUS, THE RETROACTIVE
APPLICATION OF THE NEW INTERPRETATION WAS ITSELF A DENIAL OF DUE
PROCESS.  SEE ALSO BRINKERHOFF-FARIS CO. V. HILL, 281 U.S. 673 (1930). 
IN THIS CASE, AS RESPONDENT APPARENTLY CONCEDES, BRIEF FOR RESPONDENT
12, THERE WAS NO COMPARABLE PREJUDICE TO RESPONDENT SINCE IN MAINE THE
BURDEN OF PROVING HEAT OF PASSION HAS RESTED ON THE DEFENDANT FOR MORE
THAN A CENTURY.  SEE, E.G., STATE V. KNIGHT, 43 ME. 11, 137 - 138
(1857).  TO BE SURE, THE TRIAL COURT INSTRUCTED THE JURY ON THE CONCEPT
OF EXPRESS MALICE AFORETHOUGHT, SEE N. 4, SUPRA, A CONCEPT THAT WAS
SUBSEQUENTLY STRIPPED OF ITS VITALITY BY THE MAINE SUPREME JUDICIAL
COURT.  BUT THE TRIAL COURT EXPLICITLY STATED THAT EXPRESS MALICE
AFORETHOUGHT NEED NOT BE SHOWN SINCE MALICE WOULD BE IMPLIED FROM THE
UNLAWFUL HOMICIDE.  IN CONSIDERING THESE INSTRUCTIONS AS A WHOLE, SEE
CUPP V. NAUGHTEN, 414 U.S. 141, 147 (1973), WE DISCERN NO PREJUDICE TO
RESPONDENT. 

/11/ ON RARE OCCASIONS THE COURT HAS RE-EXAMINED A STATE COURT
INTERPRETATION OF STATE LAW WHEN IT APPEARS TO BE AN "OBVIOUS
SUBTERFUGE TO EVADE CONSIDERATION OF A FEDERAL ISSUE."  RADIO STATION
WOW, INC. V. JONSON, 326 U.S. 120, 129 (1945).  SEE WARD V. LOVE
COUNTY, 253 U.S. 17 (1920); TERRE HAUTE & I.R. CO. V. INDIANA EX REL.,
KETCHAM, 194 U.S. 579 (1904).  IN THIS CASE THE MAINE COURT'S
INTERPRETATION OF STATE LAW, EVEN ASSUMING IT TO BE NOVEL, DOES NOT
FRUSTRATE CONSIDERATION OF THE DUE PROCESS ISSUE, AS THE MAINE COURT
ITSELF RECOGNIZED, STATE V. WILBUR, 278 A.2D, AT 146, AND AS THE
REMAINDER OF THIS OPINION MAKES CLEAR.  SEE GENERALLY COMMENT, DUE
PROCESS AND SUPREMACY AS FOUNDATIONS FOR THE ADEQUACY RULE:  THE
REMAINS CF FEDERALISM AFTER WILBUR V. MULLANEY, 26 ME. L. REV. 37
(1974). 

/12/ MUCH OF THIS HISTORY WAS SET OUT IN THE COURT'S OPINION IN MC
GAUTHA V. CALIFORNIA, 402 U.S. 183, 197 - 198 (1971).  SEE ALSO 3 J.
STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 1 - 107 (1883); 2 F.
POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 478 - 487 (2D ED.
1909). 

/13/ 12 HEN.  7, C. 7 (1496); 4 HEN.  8, C. 2 (1512); 23 HEN.  8, C.
1, SEC. 3, 4 (1531); 1 EDW.  6, C. 12, SEC. 10 (1547). 

/14/ BLACKSTONE ALSO REFERRED TO A CLASS OF HOMICIDES CALLED
INVOLUNTARY MANSLAUGHTER.  SUCH HOMICIDES WERE COMMITTED BY ACCIDENT IN
THE COURSE OF PERPETRATING ANOTHER UNLAWFUL, ALTHOUGH NOT FELONIOUS,
ACT.  4 W. BLACKSTONE, COMMENTARIES 192 - 193.  THIS OFFENSE, WITH SOME
MODIFICATION AND ELABORATION, GENERALLY HAS BEEN RECOGNIZED IN THIS
COUNTRY.  SEE R. PERKINS, CRIMINAL LAW 70 - 77 (2D ED. 1969). 

/15/ THUS IT APPEARS THAT THE CONCEPT OF EXPRESS MALICE AFORETHOUGHT
WAS SURPLUSAGE SINCE IF THE HOMICIDE RESULTED FROM SUDDEN PROVOCATION
IT WAS MANSLAUGHTER; OTHERWISE IT WAS MURDER.  IN THIS RESPECT, MAINE
LAW APPEARS TO FOLLOW THE OLD COMMON LAW.  SEE GENERALLY COMMENT, THE
CONSTITUTIONALITY OF THE COMMON LAW PRESUMPTION OF MALICE IN MAINE, 54
B.U.L. REV. 973, 986 - 999 (1974). 

/16/ FLETCHER, TWO KINDS OF LEGAL RULES:  A COMPARATIVE STUDY OF
BURDEN-OF-PERSUASION PRACTIES IN CRIMINAL CASES, 77 YALE L.J. 880, 904
907 (1968), DISPUTES THIS CONCLUSION, ARGUING THAT THE RELIANCE ON
ONEBY'S CASE WAS MISPLACED.  IN ONEBY THE JURY RETURNED A SPECIAL
VERDICT MAKING SPECIFIC FINDINGS OF FACT.  NO FINDING WAS MADE WITH
RESPECT TO PROVOCATION.  ABSENT SUCH A FINDING THE COURT HELD THAT THE
HOMICIDE WAS MURDER.  FLETCHER MAINTAINS THAT IN THE CONTEXT OF A
SPECIAL VERDICT IT IS IMPOSSIBLE TO DETERMINE WHETHER THE DEFENDANT
FAILED TO SATISFY HIS BURDEN OF GOING FORWARD WITH "SOME EVIDENCE" OR
THE ULTIMATE BURDEN OF PERSUADING THE JURY.  SEE ALSO N. 20, INFRA. 

/17/ SEVERAL JURISDICTIONS ALSO DIVIDED MURDER INTO DIFFERENT
DEGREES, TYPICALLY LIMITING CAPITAL PUNISHMENT TO FIRST-DEGREE MURDER
AND REQUIRING THE PROSECUTION TO PROVE PREMEDITATION AND DELIBERATION
IN ORDER TO ESTABLISH THAT OFFENSE.  SEE KEEDY, HISTORY OF THE
PENNSYLVANIA STATUTE CREATING DEGREES OF MURDER, 97 U. PA. L. REV. 759
(1949); WECHSLER & MICHAEL, A RATIONALE OF THE LAW OF HOMICIDE:  I, 37
COL. L. REV 701, 703 - 707 (1937). 

/18/ JUSTICE WILDE DISSENTED, ARGUING THAT THE COMMONWEALTH WAS
REQUIRED TO PROVE ALL FACTS NECESSARY TO ESTABLISH MURDER, INCLUDING
MALICE AFORETHOUGHT, WHICH IN TURN REQUIRED IT TO NEGATE THE SUGGESTION
THAT THE KILLING OCCURRED IN THE HEAT OF PASSION ON SUDDEN
PROVOCATION.  HE ALSO REJECTED THE DOCTRINE OF IMPLIED MALICE ON THE
GROUND THAT "(NO MALICE CAN BE INFERRED FROM THE MERE ACT OF KILLING. 
SUCH A PRESUMPTION, THEREFORE, IS ARBITRARY AND UNFOUNDED."  50 MASS.,
AT 128. 

/19/ STATE V. KNIGHT, 43 ME. 11 (1857). 

/20/ SEE CASES CITED IN FLETCHER, SUPRA, N. 16, AT 903 NN. 77 - 79. 
SOME CONFUSION DEVELOPED, HOWEVER, AS TO PRECISELY WHAT YORK REQUIRED. 
CONTEMPORARY WRITERS DIVIDE THE GENERAL NOTION OF "BURDEN OF PROOF"
INTO A BURDEN OF PRODUCING SOME PROBATIVE EVIDENCE ON A PARTICULAR
ISSUE AND A BURDEN PERSUADING THE FACTFINDER WITH RESPECT TO THAT ISSUE
BY A STANDARD SUCH AS PROOF BEYOND A REASONABLE DOUBT OR BY A FAIR
PREPONDERANCE OF THE EVIDENCE.  SEE, E.G., E. CLEARY, MC CORMICK ON
EVIDENCE SEC. 336 (2D ED. 1972).  THIS DISTINCTION APPARENTLY WAS NOT
WELL RECOGNIZED AT THE TIME YORK WAS DECIDED, AND THUS IN SOME
JURISDICTIONS IT WAS UNCLEAR WHETHER THE DEFENDANT WAS REQUIRED TO BEAR
THE PRODUCTION BURDEN OR THE PERSUASION BURDEN ON THE ISSUE OF HEAT OF
PASSION.  SEE, E.G., CASES DISCUSSED IN PEOPLE V. MORRIN, 31 MICH. APP.
301, 315 - 323, 187 N.W.2D 434, 441 - 446 (1971).  INDEED, 10 YEARS
AFTER THE DECISION IN YORK, CHIEF JUSTICE SHAW EXPLAINED THAT "THE
DOCTRINE OF YORK'S CASE WAS THAT WHERE THE KILLING IS PROVED TO HAVE
BEEN COMMITTED BY THE DEFENDANT, AND NOTHING FURTHER IS SHOWN, THE
PRESUMPTION OF LAW IS THAT IT WAS MALICIOUS AND AN ACT OF MURDER." 
COMMONWEALTH V. HAWKINS, 69 MASS. (3 GRAY) 463, 465 (1855) (EMPHASIS IN
ORIGINAL).  HE FURTHER NOTED THAT THIS PRESUMPTION DID NOT GOVERN WHEN
THERE WAS EVIDENCE INICATING THAT THE DEFENDANT MIGHT HAVE ACTED IN THE
HEAT OF PASSION.  IN THAT SITUATION, "IF THE JURY, UPON ALL THE
CIRCUMSTANCES, ARE SATISFIED, BEYOND A REASONABLE DOUBT, THAT (THE
HOMICIDE) WAS DONE WITH MALICE, THEY WILL RETURN A VERDICT OF MURDER;
OTHERWISE, THEY WILL FIND THE DEFENDANT GUILTY OF MANSLAUGHTER."  ID.,
AT 466.  THUS, EVEN THE AUTHOR OF YORK QUICKLY LIMITED ITS SCOPE TO
REQUIRE ONLY THAT THE ACCUSED PRODUCE SOME EVIDENCE ON THE ISSUE OF
PASSION; THAT IS, THAT HE SATISFY THE PRODUCTION BUT NOT THE PERSUASION
BURDEN.  OTHER JURISDICTIONS BLURRED THE DISTINCTION BETWEEN THESE TWO
BURDENS BY REQUIRING THE DEFENDANT TO PROVE "THE THE SATISFACTION OF
THE JURY" THAT HE ACTED IN THE HEAT OF PASSION.  SEE, E.G., STATE V.
WILLS, 63 N.C. 26 (1868). 

/21/ IN LELAND V. OREGON, 343 U.S. 790 (1952), THE COURT DECLINED TO
APPLY THE SPECIFIC HOLDING OF DAVIS--THAT THE PROSECUTION MUST PROVE
SANITY BEYOND A REASONABLE DOUBT--TO THE STATES. 

/22/ SEE ALSO STATE V. CUEVAS, 488 P.2D 322 (HAW.  1971) (WINSHIP
REQUIRES THE PROSECUTION TO PROVE MALICE AFORETHOUGHT BEYOND A
REASONABLE DOUBT).  ENGLAND ALSO NOW REQUIRES THE PROSECUTION TO NEGATE
HEAT OF PASSION ON SUDDEN PROVOCATION BY PROOF BEYOND A REASONABLE
DOUBT.  MANCINI V. DIRECTOR OF PUBLIC PROSECUTIONS, (1942) A.C. 1; SEE
WOOLMINGTON V. DIRECTOR OF PUBLIC PROSECUTIONS, (1935) A.C. 462. 

/23/ RELYING ON WILLIAMS V. NEW YORK, 337 U.S. 241 (1949), AND MC
GAUTHA V. CALIFORNIA, 402 U.S., AT 196, PETITIONERS SEEK TO BUTTRESS
THIS CONTENTION BY ARGUING THAT SINCE THE PRESENCE OR ABSENCE OF THE
HEAT OF PASSION ON SUDDEN PROVOCATION AFFECTS ONLY THE EXTENT OF
PUNISHMENT IT SHOULD BE CONSIDERED A MATTER WITHIN THE TRADITIONAL
DISCRETION OF THE SENTENCING BODY AND THEREFORE NOT SUBJECT TO RIGOROUS
DUE PROCESS DEMANDS.  BUT CF. UNITED STATES V. TUCKER, 404 U.S. 443
(1972).  THERE IS NO INCOMPATIBILITY BETWEEN OUR DECISION TODAY AND THE
TRADITIONAL DISCRETION AFFORDED SENTENCING BODIES.  UNDER MAINE LAW THE
GURY IS GIVEN NO DISCRETION AS TO THE SENTENCE TO BE IMPOSED ON ONE
FOUND GUILTY OF FELONIOUS HOMICIDE.  IF THE DEFENDANT IS FOUND TO BE A
MURDERER, A MANDATORY LIFE SENTENCE RESULTS.  ON THE OTHER HAND, IF THE
JURY FINDS HIM GUILTY ONLY OF MANSLAUGHTER IT REMAINS FOR THE TRIAL
COURT IN THE EXERCISE OF ITS DISCRETION TO IMPOSE A SENTENCE WITHIN THE
STATUTORILY DEFINED LIMITS. 

/24/ MANY STATES IMPOSE DIFFERENT STATUTORY SENTENCES ON DIFFERENT
DEGREES OF ASSAULT.  IF WINSHIP WERE LIMITED TO A STATE'S DEFINITION OF
THE ELEMENTS OF A CRIME, THESE STATES COULD DEFINE ALL ASSAULTS AS A
SINGLE OFFENSE AND THEN REQUIRE THE DEFENDANT TO DISPROVE THE ELEMENTS
OF AGGRAVATION--E.G., INTENT TO KILL OR INTENT TO ROB.  BUT SEE STATE
V. FERRIS, 249 A.2D 523 (ME. 1969) (PROSECUTION MUST PROVE ELEMENTS OF
AGGRAVATION IN CRIMINAL ASSAULT CASE BY PROOF BEYOND A REASONABLE
DOUBT). 

/25/ INDEED, IN WINSHIP ITSELF THE COURT INVALIDATED THE BURDEN OF
PROOF IN A JUVENILE DELINQUENCY PROCEEDING EVEN THOUGH DELINQUENCY WAS
NOT FORMALLY CONSIDERED A "CRIME" UNDER STATE LAW.  397 U.S., AT 365 -
366; ID., AT 373 - 374 (HARLAN, J., CONCURRING). 

/26/ SEE ALSO LEGO V. TWOMEY, 404 U.S. 477, 486 (1972). 

/27/ SEE DUNCAN V. LOUISIANA, 391 U.S. 145, 160 (1968): 

" THE PENALTY AUTHORIZED BY THE LAW OF THE LOCALITY MAY BE TAKEN 'AS
A GAUGE OF ITS SOCIAL AND ETHICAL JUDGMENTS.'"  WUOTING FROM DISTRICT
OF COLUMBIA V. CLAWANS, 300 U.S. 617, 628 (1937). 

/28/ SEE SUPRA, AT 696.  ALSO 38 MO. L. REV. 105 (1973).  MANY
STATES DO REQUIRE THE DEFENDANT TO SHOW THAT THERE IS "SOME EVIDENCE"
INDICATING THAT HE ACTED IN THE HEAT OF PASSION BEFORE REQUIRING THE
PROSECUTION TO NEGATE THIS ELEMENT BY PROVING THE ABSENCE OF PASSION
BEYOND A REASONABLE DOUBT.  SEE W. LA FAVE & A. SCOTT, CRIMINAL LAW 539
(1972); PERKINS, SUPRA, N. 14, AT 50 - 51.  SEE ALSO NN. 16 & 20,
SUPRA.  NOTHING IN THIS OPINION IS INTENDED TO AFFECT THAT
REQUIREMENT.  SEE ALSO N. 30, INFRA. 

/29/ SEE GENERALLY F. WHARTON, A TREATISE ON THE LAW OF EVIDENCE
SEC. 320 (9TH ED. 1884); MODEL PENAL CODE SEC. 1.13, COMMENT, P. 110
(TENT.  DRAFT NO. 4, 1955); FLETCHER, SUPRA, N. 16, AT 883, & N. 14. 

/30/ IN MILLETT THE MAINE SUPREME JUDICIAL COURT ADOPTED THE
"MAJORITY RULE" REGARDING PROOF OF SELF-DEFENSE.  THE BURDEN OF
PRODUCING "SOME EVIDENCE" ON THIS ISSUE RESTS WITH THE DEFENDANT, BUT
THE ULTIMATE BURDEN OF PERSUASION BY PROOF BEYOND A REASONABLE DOUBT
REMAINS ON THE PROSECUTION. 

/31/ THIS CONCLUSION IS SUPPORTED BY CONSIDERATION OF A RELATED LINE
OF CASES.  GENERALLY IN A CRIMINAL CASE THE PROSECUTION BEARS BOTH THE
PRODUCTION BURDEN ANS THE PERSUASION BURDEN.  IN SOME INSTANCES,
HOWEVER, IT IS AIDED BY A PRESUMPTION, SEE DAVIS V. UNITED STATES, 160
U.S. 469 (1895) (PRESUMPTION OF SANITY), OR A PERMISSIBLE INFERENCE,
SEE UNITED STATES V. GAINEY, 380 U.S 63 (1965) (INFERENCE OF KNOWLEDGE
FROM PRESENCE AT AN ILLEGAL STILL).  THESE PROCEDURAL DEVICES REQUIRE
(IN THE CASE OF A PRESUMPTION) OR PERMIT (IN THE CASE OF AN INFERENCE)
THE TRIER OF FACT TO CONCLUDE THAT THE PROSECUTION HAS MET ITS BURDEN
OF PROOF WITH RESPECT TO THE PRESUMED OR INFERRED FACT BY HAVING
SATISFACTORILY ESTABLISHED OTHER FACTS.  THUS, IN EFFECT THEY REQUIRE
THE DEFENDANT TO PRESENT SOME EVIDENCE CONTESTING THE OTHERWISE
PRESUMED OR INFERRED FACT.  SEE BARNES V. UNITED STATES, 412 U.S. 837,
846 N. 11 (1973).  SINCE THEY SHIFT THE PRODUCTION BURDEN TO THE
DEFENDANT, THESE DEVICES MUST SATISFY CERTAIN DUE PROCESS
REQUIREMENTS.  SEE E.G., BARNES V. UNITED STATES, SUPRA; TURNER V.
UNITED STATES, 396 U.S. 398 (1970). 

IN EACH OF THESE CASES, HOWEVER, THE ULTIMATE BURDEN OF PERSUASION
BY PROOF BEYOND A REASONABLE DOUBT REMAINED ON THE PROSECUTION.  SEE,
E.G., BARNES V. UNITED STATES, SUPRA, AT 845 N. 9; DAVIS V. UNITED
STATES, SUPRA, AT 484 - 488.  SHIFTING THE BURDEN OF PERSUASION TO THE
DEFENDANT OBVIOUSLY PLACES AN EVEN GREATER STRAIN UPON HIM SINCE HE NO
LONGER NEED ONLY PRESENT SOME EVIDENDENCE WITH RESPECT TO THE FACT AT
ISSUE; HE MUST AFFIRMATIVELY ESTABLISH THAT FACT.  ACCORDINGLY, THE DUE
PROCESS CLAUSE DEMANDS MORE EXACTING STANDARDS BEFORE THE STATE MAY
REQUIRE A DEFENDANT TO BEAR THIS ULTIMATE BURDEN OF PERSUASION.  SEE
GENERALLY ASHFORD & RISINGER, PRESUMPTIONS, ASSUMPTIONS, AND DUE
PROCESS IN CRIMINAL CASES:  A THEORETICAL OVERVIEW, 79 YALE L.J. 165
(1969). 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE JOINS,
CONCURRING. 

WHILE I JOIN IN THE COURT'S OPINION, THE SOMEWHAT PECULIAR POSTURE
OF THE CASE AS IT COMES TO US LEADS ME TO ADD THESE OBSERVATIONS. 

RESPONDENT MADE NO OBJECTION TO THE TRIAL COURT'S INSTRUCTION
RESPECTING THE BURDEN OF PROOF ON THE ISSUE OF WHETHER HE HAD ACTED IN
THE HEAT OF PASSION ON SUDDEN PROVOCATION.  NONETHERLESS, ON HIS APPEAL
TO THE SUPREME JUDICIAL COURT OF MAINE, THAT COURT CONSIDERED HIS
OBJECTION TO THE CHARGE ON ITS MERITS AND HELD THE CHARGE TO BE A
CORRECT STATEMENT OF MAINE LAW.  IT NEITHER MADE ANY POINT OF
RESPONDENT'S FAILURE TO OBJECT TO THE INSTRUCTION IN THE TRIAL COURT,
/1/ NOR DID IT GIVE ANY CONSIDERATION TO THE DOCTRINE LONG APPROVED BY
THIS COURT THAT THE INSTRUCTIONS TO THE JURY ARE NOT TO BE JUDGED IN
ARTIFICIAL ISOLATION, BUT MUST BE VIEWED IN THE CONTEXT OF THE OVERALL
CHARGE.  BOYD V. UNITED STATES, 271 U.S. 104, 107 (1926); CUPP.  V.
NAUGHTEN, 414 U.S. 141, 147 (1973).  IT LIKEWISE EXPRESSED NO VIEW ON
WHETHER, EVEN THOUGH THE INSTRUCTION MIGHT HAVE AMOUNTED TO
CONSTITUTIONAL ERROR, THAT ERROR COULD HABE BEEN HARMLESS.  CHAPMAN V.
CALIFORNIA, 386 U.S. 18 (1967).  ITS REASON FOR NOT TREATING THE
POSSIBILITY THAT THE ERROR WAS HARMLESS MAY HAVE BEEN BECAUSE, AS THIS
COURT'S OPINION POINTS OUT, ANTE, AT 687, THE JURY CAME BACK IN THE
MIDST OF ITS DELIBERATIONS AND REQUESTED FURTHER INSTRUCTIONS ON THE
DOCTRINE OF IMPLIED MALICE AFORETHOUGHT AND THE DEFINITION OF "HEAT OF
PASSION." 

THE CASE WHICH HAS NOW REACHED US THROUGH THE ROUTE OF FEDERAL
HABEAS CORPUS, THEREFORE, IS A HIGHLY UNUSUAL ONE WHICH DOES PRESENT
THE ABSTRACT QUESTION OF LAW ISOLATED BY THE SUPREME JUDICIAL COURT OF
MAINE AND NOW DECIDED HERE. 

I AGREE WITH THE COURT THAT IN RE WINSHIP, 397 U.S. 358 (1970), DOES
REQUIRE THAT THE PROSECUTION PROVE BEYOND A REASONABLE DOUBT EBERY
ELEMENT WHICH CONSTITUTES THE CRIME CHARGED AGAINST A DEFENDANT.  I SEE
NO INCONSISTENCY BETWEEN THAT HOLDING AND THE HOLDING OF LELAND V.
OREGON, 343 U.S. 790 (1952).  IN THE LATTER CASE THIS COURT HELD THAT
THERE WAS NO CONSTITUTIONAL REQUIREMENT THAT THE STATE SHOULDER THE
BURDEN OF PROVING THE SANITY OF THE DEFENDANT. 

THE COURT NOTED IN LELAND THAT THE ISSUE OF INSANITY AS A DEFENSE TO
A CRIMINAL CHARGE WAS CONSIDERED BY THE JURY ONLY AFTER IT HAD FOUND
THAT ALL ELEMENTS OF THE OFFENSE, INCLUDING THE MENS REA, IF ANY,
REQUIRED BY STATE LAW, HAD BEEN PROVED BEYOND A REASONABLE DOUBT.  ID.,
AT 792, 795.  ALTHOUGH AS THE STATE COURT'S INSTRUCTIONS IN LELAND
RECOGNIZED, ID., AT 794 - 795, EVIDENCE RELEVANT TO INSANITY AS DEFINED
BY STATE LAW MAY ALSO BE RELEVANT TO WHETHER THE REQUIRED MENS REA WAS
PRESENT, THE EXISTENCE OR NONEXISTENCE OF LEGAL INSANITY BEARS NO
NECESSARY RELATIONSHIP TO THE EXISTENCE OR NONEXISTENCE OF THE REQUIRED
MENTAL ELEMENTS OF THE CRIME.  FOR THIS REASON, OREGON'S PLACEMENT OF
THE BURDEN OF PROOF OF INSANITY ON LELAND, UNLIKE MAINE'S REDEFINITION
OF HOMICIDE IN THE INSTANT CASE, DID NOT EFFECT AN UNCONSTITUTIONAL
SHIFT IN THE STATE'S TRADITIONAL BURDEN OF PROOF BEYOND A REASONABLE
DOUBT OF ALL NECESSARY ELEMENTS OF THE OFFENSE.  ID., AT 795.  BOTH THE
COURT'S OPINION AND THE CONCURRING OPINION OF MR. JUSTICE HARLAN IN IN
RE WINSHIP, SUPRA, STRESS THE IMPORTANCE OF PROOF BEYOND A REASONABLE
DOUBT IN A CRIMINAL CASE AS "BOTTOMED ON A FUNDAMENTAL VALUE
DETERMINATION OF OUR SOCIETY THAT IT IS FAR WORSE TO CONVICT AN
INNOCENT MAN THAN TO LET A GUILTY MAN GO FREE."  397 U.S., AT 372
(HARLAN, J., CONCURRING).  HAVING ONCE MET THAT RIGOROUS BURDEN OF
PROOF THAT, FOR EXAMPLE, IN A CASE SUCH AS THIS, THE DEFENDANT NOT ONLY
KILLED A FELLOW HUMAN BEING, BUT DID IT WITH MALICE AFORETHOUGHT, THE
STATE COULD QUITE CONSISTENTLY WITH SUCH A CONSTITUTIONAL PRINCIPLE
CONCLUDE THAT A DEFENDANT WHO SOUGHT TO ESTABLISH THE DEFENSE OF
INSANITY, AND THEREBY ESCAPE ANY PUNISHMENT WHATEVER FOR A HEINOUS
CRIME, SHOULD BEAR THE LABORING OAR ON SUCH AN ISSUE. 

/1/ WHILE FAY V. NOIA, 372 U.S. 391 (1963), HOLDS THAT A FAILURE TO
APPEAL THROUGH THE STATE-COURT SYSTEM FROM A CONSTITUTIONALLY INFIRM
JUDGMENT OF CONVICTION DOES NOT BAR SUBSEQUENT RELIEF IN FEDERAL HABEAS
CORPUS, FAILURE TO OBJECT TO A PROPOSED INSTRUCTION SHOULD STAND ON A
DIFFERENT FOOTING.  IT IS ONE THING TO FAIL TO UTILIZE THE APPEAL
PROCESS TO CURE A DEFECT WHICH ALREADY INHERES IN A JUDGMENT OF
CONVICTION, BUT IT IS QUITE ANOTHER TO FORGO MAKING AN OBJECTION OR
EXCEPTION WHICH MIGHT PREVEN THE ERROR FROM EVER OCCURRING.  CF. DAVIS
V. UNITED STATES, 411 U.S. 233 (1973).  HERE, HOWEVER, THE MAINE
SUPREME JUDICIAL COURT NEVERTHELESS AFFIRMATIVELY RULED THAT THE ISSUE
WAS COGNIZABLE DESPITE RESPONDENT'S FAILURE TO OBJECT AT TRIAL.  SEE
MAJORITY OPINION, ANTE, AT 688 N. 7.  AND THE STATE DID NOT CONTEST THE
PROPRIETY OF CONSIDERATION OF THE ISSUE IN FEDERAL HABEAS. 

VERNON I. AREY, ASSISTANT ATTORNEY GENERAL OF MAINE, ARGUED THE
CAUSE FOR PETITIONERS.  WITH HIM ON THE BRIEF WERE JON A. LUND,
ATTORNEY GENERAL, RICHARD S. COHEN, DEPUTY ATTORNEY GENERAL, AND
CHARLES K. LEADBETTER, ASSISTANT ATTORNEY GENERAL. 

PETER J. RUBIN, BY APPOINTMENT OF THE COURT, 419 U.S. 1017, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :
















PHILBROOK V. GLODGETT, 421 U.S. 707 


       PHILBROOK, COMMISSIONER, DEPARTMENT OF SOCIAL WELFARE V.

           GLODGETT ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF VERMONT

        NO. 73 - 1820.  ARGUED MARCH 24 - 25, 1975--DECIDED JUNE 9,

           1975, 368 F.SUPP.  211, NO. 73 - 1820, AFFIRMED; NO. 74

           132, DISMISSED. 

        (TOGETHER WITH NO. 74 - 132, WEINBERGER, SECRETARY OF

           HEALTH, EDUCATION, AND WELFARE V. GLODGETT ET AL., ALSO

           ON APPEAL FROM THE SAME COURT.) 


UNDER THE AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM OF
THE SOCIAL SECURITY ACT (ACT), THE TERM "DEPENDENT CHILD" WAS EXPANDED
TO INCLUDE CHILDREN WHOSE DEPRIVATION WAS CAUSED BY A PARENT'S
UNEMPLOYMENT.  SECTION 407 (B) (2) (C) (II) OF THE ACT, AS AMENDED IN
1968, MAKES THIS EXPANDED DEFINITION APPLICABLE ONLY IF A STATE PLAN
UNDER THE AFDC PROGRAM DENIES AID TO A DEPENDENT CHILD SO DEFINED "WITH
RESPECT TO ANY WEEK FOR WHICH SUCH CHILD'S FATHER RECEIVES UNEMPLOYMENT
COMPENSATION."  VERMONT, TO QUALIFY FOR FEDERAL FUNDING UNDER THIS
ENEMPLOYED-FATHER PROGRAM, PROMULGATED A REGULATION UNDER ITS
PARTICIPATING AID TO NEEDY FAMILIES WITH CHILDREN (ANFC) PROGRAM,
DEFINING AN "UNEMPLOYED FATHER" AS ONE WHO IS, INTER ALIA, OUT OF WORK,
PROVIDED "(HE IS NOT RECEIVING UNEMPLOYMENT COMPENSATION DURING THE
SAME WEEK AS ASSISTANCE IS GRANTED."  APPELLEES, WHO ARE PARENTS AND
CHILDREN OF VERMONT FAMILIES WHOSE ANFC ASSISTANCE WAS TERMINATED OR
DENIED BECAUSE THE FATHERS WERE RECEIVING UNEMPLOYMENT COMPENSATION,
FILED SUIT AGAINST APPELLANT COMMISSIONER OF THE VERMONT DEPARTMENT OF
SOCIAL WELFARE AND APPELLANT SECRETARY OF HEALTH, EDUCATION, AND
WELFARE TO ENJOIN ENFORCEMENT OF THE FEDERAL STATUTE AND STATE
REGULATION.  HOLDING THAT IT HAD JURISDICTION OVER THE PARTIES UNDER 28
U.S.C. SEC. 1343 (3), AND CONSTRUING SEC. 407 (B) (2) (C) (II) AS
MAKING ACTUAL PAYMENT OF, RATHER THAN MORE ELIGIBILITY FOR,
UNEMPLOYMENT COMPENSATION THE DISQUALIFYING FACTOR FOR AFDC BENEFITS, A
THREE-JUDGE DISTRICT COURT HELD THAT THE VERMONT REGULATION COULD NOT
BE APPLIED SO AS TO CONFLICT WITH THIS CONSTRUCTION OF THE FEDERAL
STATUTE, AND ENTERED AN INJUNCTION TO THIS EFFECT.  HELD: 

1.  THE VERMONT REGULATION, AS APPLIED TO EXCLUDE UNEMPLOYED FATHERS
WHO ARE MERELY ELIGIBLE FOR UNEMPLOYMENT COMPENSATION FROM RECEIVING
ANFC BENEFITS, MPERMISSIBLY CONFLICTS WITH SEC. 407 (B) (2) (C) (II),
AS CORRECTLY INTERPRETED BY THE DISTRICT COURT.  AS EVIDENCED BY THAT
PROVISION'S LEGISLATIVE HISTORY, CONGRESS DID NOT INTEND THE PROVIION'S
COVERAGE TO BE AT THE STATE'S DISCRETION ONCE IT ELECTED TO
PARTICIPATE.  PP. 713 - 719. 

2.  THIS COURT WILL NOT INQUIRE INTO THE QUESTION WHETHER THE
DISTRICT COURT HAD JURISDICTION OVER APPELLANT SECRETARY BUT WILL MAKE
AN EXCEPTION TO THE GENERAL RULE THAT THIS COURT HAS A DUTY TO SO
INQUIRE, WHERE THE QUESTION HAS BEEN INADEQUATELY BRIEFED, THE
SUBSTANTIVE ISSUE HAS BEEN DECIDED IN THE STATE'S CASE, AND THE
SECRETARY HAS STATED HE WILL COMPLY WITH THE DISTRICT COURT DECISION ON
THE STATUTORY ISSUE IF IT IS AFFIRMED.  THE EXERCISE OF THE DISTRICT
COURT'S JURISDICTION OVER THE SECRETARY HAD RESULTED IN NO ADJUDICATION
ON THE MERITS THAT COULD NOT HAVE BEEN JUST AS PROPERLY MADE WITHOUT
THE SECRETARY, AND IN NO ISSUANCE OF PROCESS AGAINST THE SECRETARY
WHICH HE HAD PROPERLY CONTENDED TO BE WRONGFUL BEFORE THIS COURT.  PP.
720 - 722. 

REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

IN THESE CONSOLIDATED APPEALS WE ARE CALLED UPON TO CONSTRUE A
PROVISION OF THE SOCIAL SECURITY ACT OF 1935 (ACT), AS AMENDED, AND TO
ASCERTAIN WHETHER A VERMONT WELFARE REGULATION IMPERMISSIBLY CONFLICTS
WITH THAT PROVISION.  A THREE-JUDGE DISTRICT COURT HELD THAT IT DID,
368 F.SUPP.  211 (VT. 1973), AND WE NOTED PROBABLE JURISDICTION IN THE
APPEAL OF APPELLANT PHILBROOK, COMMISSIONER OF THE VERMONT DEPARTMENT
OF SOCIAL WELFARE, IN NO. 73 - 1820, AND POSTPONED CONSIDERATION OF THE
QUESTION OF JURISDICTION IN THE APPEAL OF APPELLANT WEINBERGER,
SECRETARY OF HEALTH, EDUCATION, AND WELFARE, IN NO. 74 - 132.  419 U.S.
963 (1974).  PHILBROOK'S APPEAL PRESENTS ONLY THE QUESTION OF WHETHER
THE VERMONT WELFARE REGULATION IN QUESTION CONFLICTS WITH SEC. 407 (B)
(2) (C) (II) OF THE ACT, AS AMENDED, 42 U.S.C. SEC. 607 (B) (2) (C)
(II), WHILE THE SECRETARY'S APPEAL PRESENTS THE ADDITIONAL ISSUE OF
WHETHER THE DISTRICT COURT CORRECTLY CONCLUDED THAT IT HAD JURISDICTION
OVER THE SECRETARY UNDER THE DOCTRINE OF PENDENT JURISDICTION. 

        I 

IN TITLE IV OF THE ACT, 49 STAT. 627, CONGRESS ENACTEDN THE AID TO
DEPENDENT CHILDREN PROGRAM, /1/ THROUGH WHICH FEDERAL FUNDS WOULD BE
GRANTED TO QUALIFYING STATES IN ORDER TO PROVIDE AID TO DEPENDENT
CHILDREN.  THE TERM "DEPENDENT CHILD" WAS ORIGINALLY DEFINED TO INCLUDE
ONLY CHILDREN WHOSE DEPRIVATION WAS CAUSED BY "THE DEATH, CONTINUED
ABSENCE FROM THE HOME, OR PHYSICAL OR MENTAL INCPACITY OF A PARENT,"
/2/ BUT IN 1961 CONGRESS EXPANDED THE DEFINITION OF DEPENDENT CHILD TO
INCLUDE CHILDREN WHOSE DEPRIVATION WAS CAUSED BY THE UNEMPLOYMENT OF
APARENT.  /3/  THIS PROGRAM WAS ENACTED ON AN EXPERIMENTAL BASIS /4/
AND GAVE STATES THE AUTHORITY TO DEFINE "UNEMPLOYMENT" AND TO DENY AFDC
BENEFITS IN WHOLE OR IN PART IF THE UNEMPLOYED PARENT RECEIVED
UNEMPLOYMENT COMPENSATION DURING THE RELEVANT PERIOD.  IN 1968 CONGRESS
ELECTED TO MAKE THE UNEMPLOYED-PARENT PROGRAM PERMANENT, /5/ BUT IN
RESPONSE TO PROBLEMS THAT HAD ARISEN DURING THE TRIAL PERIOD, CONGRESS
RETRACTED SOME OF THE AUTHORITY THAT HAD FORMERLY BEEN DELEGATED TO THE
STATES.  /6/ UNDER THESE AND OTHER CHANGES THAT ALSO BECAME EFFECTIVE
IN 1968, /7/ THE EXPANDED DEFINITION OF "DEPENDENT CHILD," SEC. 407 (A)
OF THE ACT, APPLIES ONLY IF PARTICIPATING STATES DENY AID 

     "TO FAMILIES WITH DEPENDENT CHILDREN TO ANY CHILD OR RELATIVE

  SPECIFIED IN SUBSECTION (A) OF THIS SECTION--,

        * * * * * 

"(II) WITH RESPECT TO ANY WEEK FOR WHICH SUCH CHILD'S FATHER

  RECEIVES UNEMPLOYMENT COMPENSATION UNDER AN UNEMPLOYMENT

  COMPENSATION LAW OF A STATE OR OF THE UNITED STATES."  SEC.  407

  (B) (2) (C) (II) OF THE ACT, 42 U.S.C. SEC. 607 (B) (2) (C)

  (II). 

TO QUALIFY FOR FUNDING UNDER THIS UNEMPLOYED-FATHER PROGRAM, VERMONT
PROMULGATED WELFARE REGULATION 2333.1, WHICH PROVIDES IN RELEVANT
PART: 

     " AN 'UNEMPLOYED FATHER' IS ONE WHOSE IMNOR CHILDREN ARE IN

  NEED BECAUSE HE IS OUT OF WORK, IS WORKING PART-TIME, OR IS NOT

  AT WORK DUE TO AN INDUSTRIAL DISPUTE (STRIKE), FOR AT LEAST 30

  DAYS PRIOR TO RECEIVING ASSISTANCE, PROVIDED THAT:

        * * * * * 

     "(3) HE IS NOT RECEIVING UNEMPLOYMENT COMPENSATION DURING THE

  SAME WEEK AS ASSISTANCE IS GRANTED." 

APPELLEES ARE THE PARENTS AND MINOR CHILDREN OF VERMONT FAMILIES
WHOSE ANFC ASSISTANCE WAS TERMINATED OR WHOSE APPLICATIONS FOR
ASSISTANCE WERE REJECTED BECAUSE THE FATHERS WERE RECEIVING
UNEMPLOYMENT COMPENSATION; IN EACH INSTANCE THE AMOUNT OF MONEY
RECEIVED BY THE FAMILY IN UNEMPLOYMENT COMPENSATION WAS LESS THAN WOULD
HAVE BEEN RECEIVED UNDER THE ANFC PROGRAM.  APPELLEES FILED SUIT
AGAINST COMMISSIONER PHILBROOK AND SECRETARY WEINBERGER TO ENJOIN THE
ENFORCEMENT OF THE FEDERAL STATUTE AND STATE REGULATION.  THE THREE
JUDGE COURT, FINDING THAT IT HAD JURISDICTION OVER THE PARTIES BY
VIRTUE OF 28 U.S.C. SEC. 1343 (3), CONCLUDED "FROM THE LANGUAGE OF THE
STATUTE THAT THE DISQUALIFYING FACTOR IS ACTUAL PAYMENT, RATHER THAN
MERE ELIGIBILITY FOR UNEMPLOYMENT COMPENSATION."  368 F.SUPP., AT 217. 
UNDER THIS CONSTRUCTION OF SEC. 407 (B) (2) (C) (II) OF THE ACT, 42
U.S.C. SEC. 607 (B) (2) (C) (II), A FATHER WHO OTHERWISE QUALIFIED HAD
AN OPTION TO RECEIVE EITHER AN UNEMPLOYEMENT COMPENSATION CHECK OR ANFC
ASSISTANCE, WHICHEVER WAS GREATER, AND THE VERMONT REGULATION COULD NOT
BE APPLIED SO AS TO CONFLICT WITH THIS CONSTRUCTION OF THE FEDERAL
STATUTE.  AN INJUNCITON TO THIS EFFECT WAS ENTERED, AND BOTH THE STATE
AND FEDERAL PARTIES HAVE APPEALED.  /8/

        II 

THE APPELLANTS DO NOT CONTEST, AS INDEED THEY COULD NOT, THAT SEC.
407 (B) (2) (C) (II) SPEAKS IN TERMS OF A "FATHER (WHO) RECEIVES
UNEMPLOYMENT COMPENSATION" RATHER THAN A "FATHER (WHO) IS ELIGIBLE TO
RECEIVE UNEMPLOYMENT COMPENSATION."  THEY DO CONTEND, HOWEVER, THAT THE
DISTRICT COURT'S CONSTRUCTION OF THAT SECTION IS WHOLLY AT ODDS WITH
THE PREMISE UNDERLYING THE AFDC PROGRAM AND WITH THE APPROACH TO NON
AFDC RESOURCES DICTATED BY SEC. 402 (A) (7) OF THE ACT, 42 U.S.C. SEC.
602 (A) (7).  " IN EXPOUNDING A STATUTE, WE MUST NOT BE GUIDED BY A
SINGLE SENTENCE OR MEMBER OF A SENTENCE, BUT LOOK TO THE PROVISIONS OF
THE WHOLE LAW, AND TO ITS OBJECT AND POLICY."  UNITED STATES V. HEIRS
OF BOISDORE, 8 HOW.  113, 122 (1849).  RICHARDS V. UNITED STATES, 369
U.S. 1, 11 (1962); CHEMEHUEVI TRIBE OF INDIANS V. FPC, 420 U.S. 395,
402 - 403 (1975).  OUR OBJECTIVE IN A CASE SUCH AS THIS IS TO ASCERTAIN
THE CONGRESSIONAL INTENT AND GIVE EFFECT TO THE LEGISLATIVE WILL.  THE
LANGUAGE OF SEC. 407 (B) (2) (C) (II) CERTAINLY LEANS TOWARD THE
CONSTRUCTION ADOPTED BY THE DISTRICT COURT, BUT "(IT IS A FAMILIAR
RULE, THAT A THING MAY BE WITHIN THE LETTER OF THE STATUTE AND YET NOT
WITHIN THE STATUTE, BECAUSE NOT WITHIN ITS SPIRIT, NOR WITHIN THE
INTENTION OF ITS MAKERS."  CHURCH OF THE HOLY TRINITY V. UNITED STATES,
143 U.S. 457, 459 (1892). 

IN ORDER TO GUALIFY FOR FEDERAL ASSISTANCE UNDER THE AFDC PROGRAM, A
STATE PLAN MUST "PROVIDE THAT THE STATE AGENCY SHALL, IN DETERMINING
NEED, TAKE INTO CONSIDERATION ANY OTHER INCOME AND RESOURCES OF ANY
CHILD OR RELATIVE CLAIMING AID TO FAMILIES WITH DEPENDENT CHILDREN." 
SEC. 402 (A) (7) OF THE ACT, 42 U.S.C. SEC. 602 (A) (7).  FURTHER FORCE
TO THIS STATUTORY COMMAND HAS BEEN APPLIED BY REGULATIONS REQUIRING
STATE AGENCIES TO "CARRY OUT POLICIES WITH REFERENCE TO APPLICANTS' AND
RECIPIENTS' POTENTIAL SOURCES OF INCOME THAT CAN BE DEVELOPED TO A
STATE OF AVAILABILITY."  45 CFR SEC. 233.20 (A) (3) (IX).  IT FLIES IN
THE FACE OF THIS STATUTORY SCHEME, ARGUE APPELLANTS, TO CONSTRUE A
PROVISION OF THE SAME TITLE SO AS TO PERMIT A PERSON TO DECLINE
RESOURCES, FOR WHICH HE IS ELIGIBLE, IN ORDER TO GUALIFY FOR AFDC
ASSISTANCE.  SEE SHEA V. VIALPANDO, 416 U.S. 251 (1974).  THIS ANOMALY
IS COMPOUNDED BY THE VIOLENCE DONE TO THE INTENDED OPERATION OF
UNEMPLOYMENT COMPENSATION PROGRAMS BY THE DISTRICT COURT'S
CONSTRUCTION.  UNEMPLOYMENT COMPENSATION PROGRAMS, FINANCED BY EMPLOYER
CONTRIBUTIONS, ARE INTENDED TO OPERATE WITHOUT REGARD TO NEED AND BE
AVAILABLE TO A RECIPIENT AS A MATTER OF RIGHT.  SEE CALIFORNIA DEPT. OF
HUMAN RESOURCES DEVELOPMENT V. JAVA, 402 U.S. 121 (1971).  THE
APPELLANTS CONTEND THAT AFDC SHOULD NOT BE AVAILABLE WHEN UNEMPLOYMENT
CONPENSATION, "THE FIRST LINE OF DEFENSE," CAN BE OBTAINED.  /9/ 

AN ARGUMENT BASED ON INTERSECTIONAL HARMONY MIGHT HAVE CONSIDERABLE
FORCE IN OTHER CIRCUMSTANCES, BUT WE FIND IT UNPERSUASIVE AS APPLIED TO
APPELLANTS' CASE.  UNDER SEC. 402 (A) (7), AN APPLICANT'S OTHER INCOME
AND RESOURCES ARE TAKEN INTO ACCOUNT IN DETERMINING THE APPLICANT'S
NEED.  IF THE AMOUNT "IS LESS THAN THE PREDETERMINED STATEWIDE STANDARD
OF NEED, THE APPLICANT IS ELIGIBLE FOR PARTICIPATION IN THE PROGRAM AND
THE AMOUNT OF THE ASSISTANCE PAYMENTS WILL BE BASED UPON THAT
DIFFERENCE."  SHEA V. VIALPANDO, SUPRA, AT 254.  IF SEC. 407 (B) (2)
HAD BEEN INTENDED TO FIT SMOOTHLY INTO THE AFDC PROGRAM, THEN
ASSISTANCE PAYMENTS SHOULD BE REDUCED BY THE AMOUNT OF UNEMPLOYMENT
COMPENSATION RECEIVED BY A FATHER; THIS MUCH THE FEDERAL APPELLANT
CONCEDES.  /10/  BUT CONGRESS HAS EXPRESSLY PROVIDED OTHERWISE:
RECEIPT OF UNEMPLOYMENT COMPENSATION RESULTS IN TERMINATION OF AFDC
BENEFITS.  THE APPELLANTS ARE SIMPLY INCORRECT WHEN THE CHARACTERIZE
THEIR CONSTRUCTION OF SEC. 407 (B) (2) (C) (II) AS CONSISTENT WITH THE
OVERALL PATTERN OF THE AFDC PROGRAM WHILE ASSAILING THE DISTRICT
COURT'S INTERPRETATION AS FUNDAMENTALLY DISRUPTIVE; THE FACT OF THE
MATTER IS THAT NEITHER CONSTRUCTION IS HARMONIOUS WITH THE PROGRAM'S
GENERAL APPROACH TO INCOME AND RESOURCES. 

APPELLANTS CONTEND THAT THE LEGISLATIVE HISTORY OF THE SOCIAL
SECURITY AMENDMENTS OF 1968 SUPPORT THEIR POSITION THAT "AN UNEMPLOYED
FATHER WOULD BE REQUIRED TO EXHAUST THE UNEMPLOYMENT COMPENSATION
RESOURCE" BEFORE BECOMING ENTITLED TO RECEIVE AFDC ASSISTANCE.  /11/
THEY RELY UPON A STATEMENT IN THE CONFERENCE REPORT AS PROOF THAT WHEN
CONGRESS USED THE TERM "RECEIVES" IN SEC. 407 (B) (2) (C) (II) IT
INTENDED TO INCLUDE WITHIN THAT TERM PERSONS WHO WERE ELIGIBLE TO
RECEIVE UNEMPLOYMENT COMPENSATION: 

" SECTION 407 OF THE SOCIAL SECURITY ACT, AS AMENDED BY SECTION 203
(A) OF THE HOUSE BILL, DEFINED AN UNEMPLOYED FATHER (FOR PURPOSES OF
DETERMINING THE ELIGIBILITY OF HIS CHILDREN FOR AFDC) SO AS TO EXCLUDE
FATHERS WHO DO NOT HAVE 6 OR MORE QUARTERS OF WORK IN ANY 13-CALENDAR
QUARTER PERIOD ENDING WITHIN ONE YEAR PRIOR TO THE APPLICATION FOR AID,
AND FATHERS WHO RECEIVE (OR ARE QUALIFIED TO RECEIVE) ANY UNEMPLOYMENT
COMPENSATION UNDER STATE LAW. 

     " THE SENATE AMENDMENTS REMOVED THESE EXCLUSIONS, AND RESTORED

  THE PROVISION OF PRESENT LAW UNDER WHICH A STATE MAY AT ITS

  OPTION WHOLLY OR PARTLY DENY AFDC FOR ANY MONTH WHERE THE FATHER

  RECEIVES UNEMPLOYMENT COMPENSATION DURING THE MONTH.  . . . 

      " THE SENATE RECEDES.  . . ."  H.R. CONF. REP. NO. 1030, 90TH

  CONG., 1ST SESS., 57 (1967) (EMPHASIS ADDED). 

WE HAVE CAREFULLY REVIEWED THE CONTEXT OF THAT STATEMENT IN VIEW OF
THE POSITONS OF THE HOUSE AND SENATE ON SEC. 407, AND WE AGREE WITH
APPELLEES THAT THE ABOVEQUOTED LANGUAGE IS AMBIGUOUS AT BEST.  IT SEEMS
MORE LIKELY THAT THE CONFERENCE COMMITTEE WAS REFERRING TO SEC. 407 (B)
(1) (C) OF THE ACT /12/ THAN TO SEC. 407 (B) (2) (C) (II).  ALTHOUGH
BOTH HOUSES OF CONGRESS AGREED IN 1968 THAT A FEDERAL DEFINITION OF
UNEMPLOYMENT WAS NECESSARY, THEY DISAGREED ABOUT THE CONSIDERATIONS
THAT SHOULD BE EMBODIED IN THAT DEFINITION.  THE HOUSE SOUGHT TO LIMIT
PARTICIPATION UNDER THE UNEMPLOYED-FATHER PROVISION TO FATHERS WHO HAD
"A SUBSTNTIAL CONNECTION WITH THE WORK FORCE."  H.R. REP. NO. 544, 90TH
CONG., 1ST SESS., 17 (1967). 

     "(IT IS THE INTENT OF YOUR COMMITTEE TO EXCLUDE FROM THE

  PROGRAM THOSE FATHERS WHO HAVE NOT BEEN IN THE LABOR FORCE, OR

  WHOSE ATTACHMENT TO THE LABOR FORCE HAS BEEN CASUAL."  ID., AT

108. 

ALTHOUGH THE SENATE AND THE ADMINISTRATION DID NOT FAVOR REQUIRING A
SUBSTANTIAL CONNECTION WITH THE WORK FORCE AS A CONDITION FOR INCLUSION
UNDER THE UNEMPLOYED-FATHER PROGRAM, /13/ THE HOUSE VERSION PREVAILED
AT CONFERENCE.  IN IMPLEMENTING THE HOUSE STANDARD, CONGRESS
DEMONSTRATED AN AWARENESS OF THE DIFFERENCE BETWEEN RECEIPT OF
UNEMPLOYMENT BENEFITS AND ELIGIBILITY FOR SUCH BENEFITS.  IN DEFINING
THE REQUISITE PRIOR ATTACHMENT TO THE EMPLOYMENT MARKET, CONGRESS
INCLUDED FATHERS WHO HAD 

"6 OR MORE QUARTERS OF WORK . . . IN ANY 13-CALENDAR-QUARTER PERIOD
ENDING WITHIN ONE YEAR PRIOR TO THE APPLICATION FOR SUCH AID OR (II) .
. . RECEIVED UNEMPLOYMENT COMPENSATION UNDER AN UNEMPLOYMENT
COMPENSATION LAW OF A STATE OR OF THE UNITED STATES, OR HE WAS
QUALIFIED (WITHIN THE MEANING OF SUBSECTION (D) (3) OF THIS SECTION)
FOR UNEMPLOYMENT COMPENSATION.  . . ., WITHIN ONE YEAR PRIOR TO THE
APPLICATION FOR SUCH AID."  SEC.  407 (B) (1) (C) OF THE ACT, 42 U.S.C.
SEC. 607 (B) (1) (C).  /14/ THAT CONGRESS WAS NOT QUITE AS
DISCRIMINATING IN SEC. 407 (B) (2) (C) (II) CONVEYS A GOOD DEAL ABOUT
ITS INTENT.  IT SEEMS TO US THAT THE SECTION FROM THE CONFERENCE REPORT
RELIED UPON BY APPELLANTS PROBABLY WAS DIRECTED TO SEC. 407 (B) (1) (C)
(II) RATHER THAN TO THE SECTION AT ISSUE IN THESE APPEALS. 

THE DISTRICT COURT CORRECTLY CONCLUDED "THAT A FAMILY ELIGIBLE FOR
ANFC BENEFITS UNDER (42 U.S.C. SEC.) 607 CAN BE EXCLUDED ONLY FOR EACH
WEEK IN WHICH UNEMPLOYMENT COMPENSATION IS ACTUALLY RECEIVED BY THE
FATHER."  368 F.SUPP., AT 217.  IF, AS APPELLANTS CONTEND, SEC. 407 (B)
(2) (C) (II) IS INCONSISTENT WITH THE GENERAL SCHEME OF THE AFDC
PROGRAM OR WORKS TO SHIFT COSTS FROM THE PRIVATE TO THE PUBLIC SECTOR
IN CONTRAVENTION OF PRUDENT RESOURCE MANAGEMENT, IT IS THE LEGISLATIVE
BRANCH TO WHICH APPEALS FOR MODIFICATION MUST BE DIRECTED. 

WITH THE FEDERAL STANDARD OF ELIGIBILITY THUS UNDERSTOOD, IT IS
APPARENT THAT THE VERMONT DEFINITION OF "UNEMPLOYED FATHER," WHICH HAS
BEEN APPLIED TO EXCLUDE UNEMPLOYED FATHER WHO ARE ELIGIBLE FOR
UNEMPLOYMENT COMPENSATION, CONFLICTS WITH SEC. 407 (B) (2) (C) (II). 
VERMONT "MAY NOT DENY AID TO PERSONS WHO COME WITHIN IT IN THE ABSENCE
OF A CLEAR INDICATION THAT CONGRESS MEANT THE COVERAGE TO BE
OPTIONAL."  BURNS V. ALCALA, 420 U.S. 575, 580 (1975); KING V. SMITH,
392 U.S. 309 (1968); TOWNSEND V. SWANK, 404 U.S. 282 (1971); CARLESON
V. REMILLARD, 406 U.S. 598 (1972).  SEE ALSO NEW YORK DEPT. OF SOCIAL
SERVICES V. DUBLINO, 413 U.S. 405, 421 - 422 (1973).  AN IMPORTANT
PURPOSE OF THE 1968 AMENDMENTS WAS TO ELIMINATE THE VARIATIONS IN STATE
DEFINITIONS OF UNEMPLOYMENT, SEE N. 6, SUPRA, AND THE CONGRESS TWICE
TURNED BACK ATTEMPTS BY THE SENATE RESTORE TO STATES DISCRETION IN THE
COVERAGE OF THE PROGRAM.  IN THESE CIRCUMSTANCES WE FIND THAT CONGRESS
DID NOT INTEND THE COVERAGE OF SEC. 407 TO BE OPTIONAL ONCE A STATE
ELECTED TO PARTICIPATE.  THAT PROTION OF THE JUDGMENT APPEALED FROM IN
NO. 73 - 1820 IS AFFIRMED. 

        III 

THE DISTRICT COURT HELD THAT 28 U.S.C. SEC. 1343 (3) AFFORDED
JURISDICTION OVER THE SECRETARY UNDER PRINCIPLES OF PENDENT
JURISDICTION.  WE HAVE PREVIOUSLY CHARACTERIZED THIS QUESTION AS
"SUBTLE AND COMPLEX . . . WITH FAR-REACHING IMPLICATIONS."  MOOR V.
COUNTY OF ALAMEDA, 411 U.S. 693, 715 (1973).  SEE ALSO CHRISTIAN V. NEW
YORK DEPT. OF LABOR, 414 U.S. 614, 617 N. 3 (1974).  THIS ISSUE IS THE
FIRST OF THE " QUESTIONS PRESENTED" IN THE SECRETARY'S BRIEF ON THE
MERITS, BUT WHILE THE SECTION OF THAT BRIEF DEVOTED TO ARGUMENT DOES
CHARACTERIZE THE ISSUE AS "DIFFICULT AND COMPLEX," IT CONCLUDES THAT WE
NEED NOT DECIDE THE QUESTION.  THE SECRETARY REASONS THAT IF WE RULE IN
HIS FAVOR ON THE MERITS OF THE STATUTORY QUESTION, WHICH HE PRESENTS AS
THE SECOND QUESTION PRESENTED BY THIS APPEAL AND WHICH IS IDENTICAL TO
THE QUESTION PRESENTED BY APPELLANT PHILBROOK, THE CASE SHOULD BE
REMANDED SO THAT THE DISTRICT COURT MAY DECIDE APPELLEES'
CONSTITUTIONAL CHALLENGES TO THE STATUTE AS HEREIN CONSTRUED; IN THAT
EVENT THE SECRETARY ADVISES THAT "THE GOVERNMENT INTENDS TO END THE
JURISDICTIONAL CONTROVERSY BY FILING A MOTION TO INTERVENE."  BRIEF FOR
APPELLANT WEINBERGER 13.  ON THE OTHER HAND, THE SECRETARY TELLS US
THAT IF WE AGREE WITH THE DISTRICT COURT AND DISAGREE WITH HIM ON THE
MERITS OF THE STATUTORY QUESTION, AS TO WHICH JURISDICTION OVER THE
STATE DEFENDANT WAS PROPERLY INVOKED, "THE JURISDICTIONAL QUESTION WITH
RESPECT TO THE SECRETARY WOULD BECOME INCONSEQUENTIAL SINCE THE
SECRETARY AS WELL AS THE STATE WOULD, OF COURSE, ADMINISTER THE STATUTE
IN ACCORDANCE WITH THIS COURT'S INTERPRETATION."  IBID. 

WE DO NOT BELIEVE THAT THE SECRETARY'S TREATMENT OF HIS ROLE IN THIS
APPEAL, WHICH SEEMS CAST MORE IN TERMS OF AN AMICUS CURIAE THAN AS A
PARTY CHALLENGING JURISDICTION, PROVIDES AN ACCEPTABLE RESOLUTION OF
THIS QUESTION.  THE SECRETARY'S REPRESENTATION THAT HE INTENDS TO ABIDE
BY THIS COURT'S CONSTRUCTION OF THE STATUTE ON THE STATE'S APPEAL DOES
NOT IN ANY STRICT SENSE OF THE WORD RENDER MOOT THE DISPUTE BETWEEN HIM
AND APPELLEES.  WE ARE LEFT THEREFORE WITH A "SUBTLE AND COMPLEX
QUESTION WITH FAR-REACHING IMPLICATIONS" GOING TO THE JURISDICTION OF
THE DISTRICT COURT OVER THE SECRETARY, WHICH WAS RESOLVED BY THE
DISTRICT COURT IN FAVOR OF JURISDICTION, BUT THAT HAS BEEN INADEQUATELY
BRIEFED BY THE SECRETARY.  THIS COURT'S RULE 40 (G). 

FAILURE TO COMPLY WITH APPLICABLE RULES OF THIS COURT MAY RESULT IN
THE DISMISSAL OF AN APPEAL OF THE DEFAULTING PARTY.  SWEEZY V. NEW
HAMPSHIRE, 354 U.S. 234, 236 (1957); SLAGLE V. OHIO, 366 U.S. 259, 264
(1961); RALEY V. OHIO, 360 U.S. 423, 435 (1959).  OUR ONLY HESITANCY IN
APPLYING THIS PRINCIPLE TO THE SECRETARY'S APPEAL ARISES BECAUSE THE
ISSUE GOES TO THE JURISDICTION OF THE DISTRICT COURT OVER THE FEDERAL
PARTY, AND WE HAVE REPEATEDLY HELD THAT WE MUST TAKE NOTE OF WANT OF
JURISDICTION IN THE DISTRICT COURT EVEN THOUGH NEITHER PARTY HAS RAISED
THE POINT.  CUTLER V. RAE, 7 HOW.  729, 731 (1849); MITCHELL V. MAURER,
293 U.S. 237, 244 (1934); CLARK V. PAUL GRAY, INC., 306 U.S. 583, 588
(1939). 

APPLICATION OF THE GENERAL RULE THAT THIS COURT HAS A DUTY TO INQUIRE
INTO THE JURISDICTION OF THE DISTRICT COURT WOULD REQUIRE THAT WE
ADDRESS A COMPLEX QUESTION OF FEDERAL JURISDICTION NOTWITHSTANDING THE
ABSENCE OF SUBSTANTIAL AID FROM THE BRIEFS OF EITHER OF THE PARTIES. 
WE BELIEVE, HOWEVER, THAT THE UNUSUAL CONTEXT IN WHICH THIS APPEAL
COMES TO US PERMITS AN EXCEPTION TO THIS GENERAL RULE.  HERE THE
SUBSTANTIVE ISSUE DECIDED BY THE DISTRICT COURT WOULD HAVE BEEN DECIDED
BY THAT COURT EVEN IF IT HAD CONCLUDED THAT THE SECRETARY WAS NOT
PROPERLY A PARTY TO THE SUIT, SINCE APPELLANT PHILBROOK WAS CLEARLY A
PROPER PARTY UNDER 28 U.S.C. SEC. 1343 AND THE STATUTORY ISSUES RAISED
BY APPELLEES' CLAIM AGAINST PHILBROOK WERE INDISTINGUSHABLE FROM THOSE
RAISED BY THEIR CLAIM AGAINST THE SECRETARY.  THUS THE ONLY PRACTICAL
DIFFERENCE THAT RESULTED FROM THE DISTRICT COURT'S ASSUMPTION OF
JURISDICTION OVER THE SECRETARY WAS THAT ITS INJUNCTION WAS DIRECTED
AGAINST HIM AS WELL AS AGAINST APPELLANT PHILBROOK.  BUT THE SECRETARY
HAS ANNOUNCED, IN HIS BRIEF TO THIS COURT, THAT IN THE EVENT THE
DECISION OF THE DISTRICT COURT ON THE STATUTORY ISSUE IS AFFIRMED, HE
INTENDS TO COMPLY WITH IT.  THE EXERCISE OF THE DISTRICT COURT'S
JURISDICTION OVER THE SECRETARY IN THIS CASE, THEREFORE, HAS RESULTED
IN NO ADJUDICATION ON THE MERITS THAT COULD NOT HAVE BEEN JUST AS
PROPERLY MADE WITHOUT THE SECRETARY, AND HAS RESULTED IN NO ISSUANCE OF
PROCESS AGAINST THE SECRETARY WHICH HE HAS PROPERLY CONTENDED TO BE
WRONGFUL BEFORE THIS COURT. 

THE SECRETARY'S APPEAL FROM THE JUDGMENT IN NO. 74 - 132 IS,
THEREFORE, DISMISSED. 

                          IT IS SO ORDERED. 

/1/ THE NAME OF THE PROGRAM WAS CHANGED IN 1962 TO " AID AND
SERVICES TO NEEDY FAMILIES WITH CHILDREN," AND THE NAME OF THE
ASSISTANCE PROVIDED THEREUNDER BECAME " AID TO FAMILIES WITH DEPENDENT
CHILDREN" (AFDC).  PUB. L. 87 - 543, 76 STAT. 185.  VERMONT HAS ELECTED
TO CALL ITS PARTICIPATING PROGRAM AID TO NEEDY FAMILIES WITH CHILDREN
(ANFC). 

/2/ SEC. 406 (A) OF THE ACT, 49 STAT. 629.  SEE GENERALLY BURNS V.
ALCALA, 420 U.S. 575 (1975). 

/3/ 75 STAT. 75.  SEE 1961 PUBLIC PAPERS OF THE PRESIDENTS OF THE
UNITED STATES (JOHN F. KENNEDY) 46 - 47; H.R. REP. NO. 28, 87TH CONG.,
1ST SESS. (1961); S. REP. NO. 165, 87TH CONG., 1ST SESS. (1961); H.R.
CONF. REP. NO. 307, 87TH CONG., 1ST SESS. (1961). 

/4/ THE 1961 LEGISLATION WAS SCHEDULED TO EXPIRE ON JUNE 30, 1962,
BUT IT WAS EXTENDED FOR A FIVE-YEAR PERIOD IN 1962,76 STAT. 193, AND
FOR ONE MORE YEAR IN 1967, 81 STAT. 94. 

/5/ 81 STAT. 882; H.R. REP. NO. 544, 90TH CONG., 1ST SESS., 17, 107 -
109, 175 - 176 (1967); S. REP. NO. 744, 90TH CONG., 1ST SESS. (1967);
H.R. CONF. REP. NO. 1030, 90TH CONG., 1ST SESS. (1967). 

/6/ UNDER THE 1961 LEGISLATION, THE STATES HAD ADOPTED SUCH VARYING
DEFINITIONS OF "UNEMPLOYMENT" THAT UNIFORM ADMINISTRATION OF THE
PROGRAM BECAME IMPOSSIBLE; IN SOME INSTANCES THE STATES HAD ADOPTED
SUCH A BROAD DEFINITION AS TO HAVE "GONE BEYOND ANYTHING THAT THE
CONGRESS ORIGINALLY ENVISIONED."  H.R. REP. NO. 544, SUPRA, AT 108. 
SEE STATEMENT OF WILBUR J. COHEN, UNDERSECRETARY OF THE DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, HEARINGS ON H.R. 12080, BEFORE THE
SENATE COMMITTEE ON FINANCE, 90TH CONG., 1ST SESS., 268 - 269 (1967). 
CONGRESS RESPONDED BY ENACTING A FEDERAL DEFINITION OF "UNEMPLOYMENT"
WHICH REQUIRED STATES TO INCLUDE FATHERS WHO HAD "A SUBSTANTIAL
CONNECTION WITH THE WORK FORCE," H.R. REP. NO. 544, SUPRA, AT 17, AND
EXCLUDE FAMILIES IF THE UNEMPLOYED FATHER "RECEIVES UNEMPLOYMENT
COMPENSATION UNDER AN UNEMPLOYMENT COMPENSATION LAW OF A STATE OR OF
THE UNITED STATES."  81 STAT. 883.  THE SENATE HAD PREFERRED TO RETAIN
THE OPTION GIVING THE STATES THE DISCRETION TO DENY AFDC BENEFITS TO
FAMILIES RECEIVING UNEMPLOYMENT COMPENSATION, S. REP. NO. 744, SUPRA,
AT 28, BUT RECEDED AT CONFERENCE, H.R. CONF. REP. NO. 1030, SUPRA, AT
57. 

CONGRESS ALSO EXPRESSED ITS DISPLEASURE WITH THE STATE PRACTICE
WHICH HAD MADE "FAMILIES IN WHICH THE FATHER IS WORKING BUT THE MOTHER
IS UNEMPLOYED ELIGIBLE," H.R. REP. NO. 544, SUPRA, AT 108, AND
RESTRICTED THE PROGRAM TO CHILDREN OF UNEMPLOYED FATHERS. 

/7/ IN THE NEXT SESSION THE SENATE TRIED AGAIN TO MODIFY THE
MANDATORY EXCLUSION OF SEC. 407 (B).  SEE N. 6, SUPRA.  UNDER THE MAJOR
MODIFICATIONS MADE AT THE BEGINNING OF 1968, A FAMILY THAT RECEIVED
UNEMPLOYMENT COMPENSATION FOR ANY PART OF A MONTH WAS AUTOMATICALLY
DISQUALIFIED FROM AFDC ASSISTANCE FOR THE ENTIRE MONTH.  THE SENATE
SOUGHT TO RESTORE TO THE STATES THE OPTION TO PERMIT OR DENY AFDC
ASSISTANCE TO FAMILIES IN THIS SITUATION, S. REP. NO. 1014, 90TH CONG.,
2D SESS., 9 (1968).  A COMPROMISE WAS REACHED IN CONFERENCE BY WHICH
THE MANDATORY EXCLUSION WAS RETAINED IN CONCEPT BUT RELAXED IN
APPLICATION:  A FATHER RECEIVING UNEMPLOYMENT COMPENSATION DURING ANY
MONTH WOULD BE DENIED AFDC ASSISTANCE BUT ONLY WITH RESPECT TO THE
WEEKS FOR WHICH UNEMPLOYMENT COMPENSATION WAS RECEIVED.  82 STAT. 273. 
SEE H.R. CONF. REP. NO. 1533, 90TH CONG., 2D SESS., 49 (1968). 

/8/ AT ORAL ARGUMENT A QUESTION AROSE REGARDING THE JURISDICTION OF
THIS COURT OVER THE APPEALS, 28 U.S.C. SEC. 1253, AND THE PARTIES HAVE
FILED SUPPLEMENTAL BRIEFS ON THIS POINT.  ON AUTHORITY OF GONZALEZ V.
AUTOMATIC EMPLOYEES CREDIT UNION, 419 U.S. 90 (1974), AND MTM, INC. V.
BAXLEY, 420 U.S. 799 (1975), APPELLANT WEINBERGER CONTENDS THAT ANY
APPEAL FROM THE DISTRICT COURT'S JUDGMENT SHOULD HAVE BEEN TAKEN TO THE
COURT OF APPEALS; APPELLANT PHILBROOK AND APPELLEES CONTEND THAT THE
APPEALS ARE PROPERLY BEFORE THIS COURT. 

IN HAGANS V. LAVINE, 415 U.S. 528 (1974), THIS COURT INDICATED THAT
IT WAS THE PREFERRED PRACTICE FOR A SINGLE JUDGE, WHEN PRESENTED WITH
BOTH STATUTORY AND CONSTITUTIONAL GROUNDS FOR DECISION, TO RESOLVE THE
STATUTORY CLAIM BEFORE CONVENING A THREE-JUDGE COURT.  THE DISTRICT
COURT IN THIS CASE WAS UNABLE TO PROCEED IN THAT MANNER BECAUSE
APPELLEES RAISED ONLY CONSTITUTIONAL CONTENTIONS IN THEIR COMPLAINT,
APP. 10, AND RAISED THEIR STATUTORY CONTENTION, FOR THE FIRST TIME, AT
ORAL ARGUMENT BEFORE THE THREE-JUDGE COURT.  TR. OF ORAL ARG. BEFORE
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT 42 - 44
(MAR. 5, 1973).  APPELLANT WEINBERGER URGES US TO RECONSIDER OUR
DECISION IN ENGINEERS V. CHICAGO, R.I. & P.R. CO., 382 U.S 423 (1966),
IN WHICH WE HELD THAT, IF A THREE-JUDGE COURT IS CONVENED AND DECIDES A
CASE ON STATUTORY GROUNDS, THE JUDGMENT MAY BE APPEALED TO THIS COURT
UNDER 28 U.S.C. SEC. 1253, BUT WE DECLINE TO DO SO.     /9/ APPELLANT
PHILBROOK ALSO ARGUES THAT THE DISTRICT COURT'S CONSTRUCTION OPERATES
"TO SHIFT DRASTICALLY THE BURDEN OF SUPPORTING FAMILIES OF UNEMPLOYED
FATHERS FROM THE UNEMPLOYMENT COMPENSATION PROGRAM TO THE AFDC
PROGRAM."  BRIEF FOR APPELLANT PHILBROOK 27.  SUCH A SHIFT FROM PRIVATE
BETWEEN THE UNEMPLOYMENT COMPENSATION AND AFDC PROGRAMS, AND GIVES
PRIVATE EMPLOYERS A WINDFALL GAIN SINCE THEIR FINANCIAL OBLIGATION
UNDER THE UNEMPLOYMENT COMPENSATION PROGRAM IS A FUNCTION OF AMOUNTS
PAID OUT IN CLAIMS.  IBID. 

/10/ BRIEF FOR APPELLANT WEINBERGER 19 N. 6. 

/11/ ID., AT 21.  APPELLANT SECRETARY CONCEDES THAT CONGRESS DID NOT
INTEND AFDC ASSISTANCE TO BE TERMINATED IMMEDIATELY UPON A FATHER'S
ELIGIBILITY FOR UNEMPLOYMENT COMPENSATION.  CONGRESS RECOGNIZED THAT
THERE WAS A DELAY BETWEEN APPLICATION FOR UNEMPLOYMENT COMPENSATION AND
RECEIPT OF THE FIRST CHECK.  DURING THIS PERIOD, EVEN UNDER THE
SECRETARY'S CONSTRUCTION, AFDC ASSISTANCE IS AVAILABLE.  THE
SECRETARY'S POSITION IS THAT A PERSON WHO IS ELIGIBLE FOR UNEMPLOYMENT
COMPENSATION MUST TAKE THE STEPS NECESSARY TO RECEIVE SUCH PAYMENTS
AND, UPON RECEIPT, AFDC TERMINATES.  A FATHER MAY NOT, IN THE
SECRETARY'S OPINION, DECLINE UNEMPLOYMENT COMPENSATION OR REFUSE TO
APPLY FOR SUCH COMPENSATION WHEN HE IS ELIGIBLE.  ID., AT 16 - 17, N.
4. 

/12/ SECTION 407 (B) (1) OF THE ACT, 42 U.S.C. SEC. 607 (B) (1): 

"(B) THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION SHALL BE
APPLICABLE TO A STATE IF THE STATE'S PLAN APPROVED UNDER SECTION 602 OF
THIS TITLE 

"(1) REQURIES THE PAYMENT OF AID TO FAMILIES WITH DEPENDENT CHILDREN
WITH RESPECT TO A DEPENDENT CHILD AS DEFINED IN SUBSECTION (A) IN THIS

"(A) SUCH CHILD'S FATHER HAS NOT BEEN EMPLOYED (AS DETERMINED IN
ACCORDANCE WITH STANDARDS PRESCRIBED BY THE SECRETARY) FOR AT LEAST 30
DAYS PRIOR TO THE RECEIPT OF SUCH AID, 

"(B) SUCH FATHER HAS NOT WITHOUT GOOD CAUSE, WITHIN SUCH PERIOD (OF
NOT LESS THAN 30 DAYS) AS MAY BE PRESCRIBED BY THE SECRETARY, REFUSED A
BONA FIDE OFFER OF EMPLOYMENT OR TRAINING FOR EMPLOYMENT, AND 

"(C) (I) SUCH FATHER HAS 6 OR MORE QUARTERS OF WORK (AS DEFINED IN
SUBSECTION (D) (1) OF THIS SECTION) IN ANY 13-CALENDAR-QUARTER PERIOD
ENDING WITHIN ONE YEAR PRIOR TO THE APPLICATION FOR SUCH AID OR (II) HE
RECEIVED UNEMPLOYMENT COMPENSATION UNDER AN UNEMPLOYMENT COMPENSATION
LAW OF A STATE OR OF THE UNITED STATES, OR HE WAS QUALIFIED (WITHIN THE
MEANING OF SUBSECTION (D) (3) OF THIS SECTION) FOR UNEMPLOYMENT
COMPENSATION UNDER THE UNEMPLOYMENT COMPENSATION LAW OF THE STATE,
WITHIN ONE YEAR PRIOR TO THE APPLICATION FOR SUCH AID." 

/13/ S. REP. NO. 744, SUPRA, N. 5, AT 28; STATEMENT OF
UNDERSECRETARY COHEN, SUPRA, N. 6, AT 269. 

/14/ SECTION 407 (D) (3) OF THE ACT, 42 U.S.C. SEC. 607 (D) (3): 

"(D) FOR PURPOSES OF THIS SECTION,

        * * * * * 

"(3) AN INDIVIDUAL SHALL BE DEEMED QUALIFIED FOR UNEMPLOYMENT
COMPENSATION UNDER THE STATE'S UNEMPLOYMENT COMPENSATION LAW IF--, 

"(A) HE WOULD HAVE BEEN ELIGIBLE TO RECEIVE SUCH UNEMPLOYMENT
COMPENSATION UPON FILING APPLICATION, OR 

"(B) HE PERFORMED WORK NOT COVERED UNDER SUCH LAW AND SUCH WORK, IF
IT HAD BEEN COVERED, WOULD (TOGETHER WITH ANY COVERED WORK HE
PERFORMED) HAVE MADE HIM ELIGIBLE TO RECEIVE SUCH UNEMPLOYMENT
COMPENSATION UPON FILING APPLICATION." 

WILLIAM L. PATTON ARGUED THE CAUSE FOR APPELLANT IN NO. 74 - 132. 
WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY
GENERAL HILLS, ACTING ASSISTANT ATTORNEY GENERAL JAFFE, LEONARD
SCHAITMAN, ANTHONY J. STEINMEYER, AND JOHN B. RHINELANDER.  DAVID L.
KALIB, ASSISTANT ATTORNEY GENERAL OF VERMONT, ARGUED THE CAUSE FOR
APPELLANT IN NO. 73 - 1820.  WITH HIM ON THE BRIEF WERE KIMBERLY B.
CHENEY, ATTORNEY GENERAL, AND DEAN B. PINELES, ASSISTANT ATTORNEY
GENERAL. 

RICHARD S. KOHN ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES IN
BOTH CASES. 
..END :




BLUE CHIP STAMPS V. MANOR DRUG STORES, 421 U.S. 723 


       BLUE CHIP STAMPS ET AL. V. MANOR DRUG STORES

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 74 - 124.  ARGUED MARCH 24, 1975--DECIDED JUNE 9,

           1975.  492 F.2D 136, REVERSED. 


UNDER AN ANTITRUST CONSENT DECREE PETITIONER NEW BLUE CHIP WAS
REQUIRED TO OFFER A SUBSTANTIAL NUMBER OF COMMON STOCK SHARES IN ITS
NEW TRADING STAMP BUSINESS TO RETAILERS LIKE RESPONDENT WHICH HAD
PREVIOUSLY USED THE STAMP SERVICE BUT WHICH WERE NOT SHAREHOLDERS IN
PETITIONER'S CORPORATE PREDECESSOR.  CHARGING THAT NEW BLUE CHIP AND
OTHER PETITIONERS DEVISED A SCHEME TO DISSUADE THE OFFEREES BY MEANS OF
MATERIALLY MISLEADING STATEMENTS CONTAINING AN OVERLY PESSIMISTIC
APPRAISAL OF THE NEW BUSINESS FROM PURCHASING THE SECURITIES SO THAT
THE REJECTED SHARES MIGHT LATER BE OFFERED TO THE PUBLIC AT A HIGHER
PRICE, RESPONDENT BROUGHT THIS CLASS ACTION FOR DAMAGES FOR VIOLATION
OF THE PROVISIONS OF SEC. 10 (B) OF THE SECURITIES EXCHANGE ACT OF 1934
(ACT) AND RULE 10B-5 PROMULGATED THEREUNDER BY THE SECURITIES AND
EXCHANGE COMMISSION (SEC), WHICH MAKE IT UNLAWFUL TO USE DECEPTIVE
DEVICES OR MAKE MISLEADING STATEMENTS "IN CONNECTION WITH THE PURCHASE
OR SALE OF ANY SECURITY."  ACTING ON THE BASIS OF THE RULE ENUNCIATED
IN 1952 IN BIRNBAUM V. NEWPORT STEEL CORP., 193 F.2D 461, WHICH STATES
THAT A PERSON WHO IS NEITHER A PURCHASER NOR A SELLER OF SECURITIES MAY
NOT BRING AN ACTION UNDER SEC. 10 (B) OF THE ACT OR THE SEC'S RULE 10B
5, THE DISTRICT COURT DISMISSED RESPONDENT'S COMPLAINT.  THE COURT OF
APPEALS REVERSED, CONCLUDING THAT THE FACTS WARRANTED AN EXCEPTION TO
THE BIRNBAUM RULE.  THE COURT NOTED THAT PRIOR CASES HAD HELD THAT THE
RULE DID NOT EXCLUDE PERSONS OWNING CONTRACTUAL RIGHTS TO BUY OR SELL
SECURITIES AND THAT THE OFFERING OF SECURITIES IN THIS CASE IN
COMPLIANCE WITH THE ANTITRUST DECREE SERVED THE SAME FUNCTION AS A
SECURITIES PURCHASE OR SALES CONTRACT.  HELD:  A PRIVATE DAMAGES ACTION
UNDER RULE 10B-5 IS CONFINED TO ACTUAL PURCHASERS OR SELLERS OF
SECURITIES AND THE BIRNBAUM RULE BARS RESPONDENT FROM MAINTAINING THIS
SUIT.  PP. 731 - 755. 

(A) THE LONGSTANDING JUDICIAL ACCEPTANCE OF THE RULE TOGETHER WITH
CONGRESS' FAILURE TO REJECT ITS INTERPRETATION OF SEC. 10 (B) ARGUES
SIGNIFICANTLY IN FAVOR OF THIS COURT'S ACCEPTANCE OF THE RULE.  P.
733. 

(B) EVIDENCE FROM THE TEXTS OF THE ACT AND THE SECURITIES ACT OF
1933 SUPPORTS THE BIRNBAUM RULE.  WHEN CONGRESS WISHED TO PROVIDE
STATUTORY REMEDIES TO OTHERS THAN PURCHASERS OR SELLERS OF SECURITIES,
IT DID SO EXPRESSLY.  PP. 733 - 736. 

(C) POLICY CONSIDERATIONS PREDOMINANTLY FAVOR ADHERENCE TO THE
RULE.  FAILURE TO FOLLOW IT COULD WELL RESULT IN VEXATIOUS LITIGATION
CAUSED BY A WIDELY EXPANDED CLASS OF PLAINTIFFS BRINGING "STRIKE" SUITS
UNDER RULE 10B-5 AND OPENING LITIGATION TO HAZY FACTUAL ISSUES THE
PROOF OF WHICH WOULD LARGELY DEPEND ON UNCORROBORATED ORAL TESTIMONY TO
THE EFFECT THAT A PERSON SITUATED LIKE RESPONDENT CONSULTED THE
SECURITY ISSUER'S PROSPECTUS, AND PAID ATTENTION TO IT, AND THAT ITS
REPRESENTATIONS INJURED HIM.  PP. 737 - 749. 

(D) RESPONDENT, WHO DERIVES NO ENTITLEMENT FROM THE ANTITRUST DECREE
AND DOES NOT OTHERWISE POSSESS ANY CONTRACTUAL RIGHTS RELATING TO THE
OFFERED STOCK, OCCUPIES THE SAME POSITION AS ANY OTHER DISAPPOINTED
OFFEREE OF STOCK REGISTERED UNDER THE 1933 ACT WHO CLAIMS THAT AN
OVERLY PESSIMISTIC PROSPECTUS HAS CAUSED HIM TO PASS UP THE CHANCE TO
PURCHASE, AND THERE IS AMPLE EVIDENCE THAT CONGRESS DID NOT INTEND TO
EXTEND A PRIVATE CAUSE OF ACTION FOR MONEY DAMAGES TO THE NONPURCHASING
OFFEREE OF STOCK REGISTERED UNDER THE 1933 ACT FOR LOSS OF THE
OPPORTUNITY TO PURCHASE DUE TO AN OVERLY PESSIMISTIC PROSPECTUS.  PP.
749 - 754. 

(E) THE EXCEPTION TO THE BIRNBAUM RULE THAT THE COURT OF APPEALS
RELIED UPON WOULD EXPOSE THE RULE TO CASE-BY-CASE EROSION DEPENDING
UPON WHETHER A PARTICULAR GROUP OF PLAINTIFFS WAS DEEMED MORE DISCRETE
THAN POTENTIAL PURCHASERS IN GENERAL SO AS TO WARRANT DEPARTING FROM
THE RULE, AND WOULD RESULT IN AN UNSATISFACTORY BASIS FOR ESTABLISHING
LIABILITY FOR THE CONDUCT OF BUSINESS TRANSACTIONS.  PP. 754 - 755. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, MARSHALL, AND POWELL, JJ., JOINED.  POWELL,
J., FILED A CONCURRING OPINION, IN WHICH STEWART AND MARSHALL, JJ.,
JOINED, POST, P. 755.  BLACKMUN, J., FILED A DISSENTING OPINION, IN
WHICH DOUGLAS AND BRENNAN, JJ., JOINED, POST, PP. 761. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US TO CONSIDER WHETHER THE OFFEREES OF A STOCK
OFFERING, MADE PURSUANT TO AN ANTITRUST CONSENT DECREEE AND REGISTERED
UNDER THE SECURITIES ACT OF 1933, 48 STAT. 74, AS AMENDED, 15 U.S.C.
SEC. 77A ET SEQ. (1933 ACT), MAY MAINTAIN A PRIVATE CAUSE OF ACTION FOR
MONEY DAMAGES WHERE THEY ALLEGE THAT THE OFFEROR HAS VIOLATED THE
PROVISIONS OF RULE 10B-5 OF THE SECURITIES AND EXCHANGE COMMISSION, BUT
WHERE THEY HAVE NEITHER PURCHASED NOR SOLD ANY OF THE OFFERED SHARES. 
SEE BIRNBAUM V. NEWPORT STEEL CORP., 193 F.2D 463 (CA2), CERT. DENIED,
343 U.S. 956 (1952). 

        I 

IN 1963 THE UNITED STATES FILED A CIVIL ANTITRUST ACTION AGAINST
BLUE CHIP STAMP CO. (OLD BLUE CHIP), A COMPANY IN THE BUSINESS OF
PROVIDING TRADING STAMPS TO RETAILERS, AND NINE RETAILERS WHO OWNED 90%
OF ITS SHARES.  IN 1967 THE ACTION WAS TERMINATED BY ENTRY OF A CONSENT
DECREE.  UNITED STATES V. BLUE CHIP STAMP CO., 272 F.SUPP.  432 (CD
CAL.), AFF'D SUB NOM. THRIFTY SHOPPERS SCRIP CO. V. UNITED STATES, 389
U.S. 580 (1968).  /1/ THE DECREE CONTEMPLATED A PLAN OF REORGANIZATION
WHEREBY OLD BLUE CHIP WAS TO BE MERGED INTO A NEWLY FORMED CORPORATION,
BLUE CHIP STAMPS (NEW BLUE CHIP).  THE HOLDINGS OF THE MAJORITY
SHAREHOLDERS OF OLD BLUE CHIP WERE TO BE REDUCED, AND NEW BLUE CHIP,
ONE OF THE PETITIONERS HERE, WAS REQUIRED UNDER THE PLAN TO OFFER A
SUBSTANTIAL NUMBER OF ITS SHARES OF COMMON STOCK TO RETAILERS WHO HAS
USED THE STAMP SERVICE IN THE PAST BUT WHO WERE NOT SHAREHOLDERS IN THE
OLD COMPANY.  UNDER THE TERMS OF THE PLAN, THE OFFERING TO
NONSHAREHOLDER USERS WAS TO BE PROPORTIONAL TO PAST STAMP USAGE AND THE
SHARES WERE TO BE OFFERED IN UNITS CONSISTING OF COMMON STOCK AND
DEBENTURES. 

THE REORGANIZATION PLAN WAS CARRIED OUT, THE OFFERING WAS REGISTERED
WITH THE SEC AS REQUIRED BY THE 1933 ACT, AND A PROSPECTUS WAS
DISTRIBUTED TO ALL OFFEREES AS REQUIRED BY SEC. 5 OF THAT ACT, 15
U.S.C. SEC. 77E.  SOMEWHAT MORE THAN 50% OF THE OFFERED UNITS WERE
ACTUALLY PURCHASED.  IN 1970, TWO YEARS AFTER THE OFFERING, RESPONDENT,
A FORMER USER OF THE STAMP SERVICE AND THEREFORE AN OFFEREE OF THE 1968
OFFERING, FILED THIS SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA.  DEFENDANTS BELOW AND PETITIONERS HERE
ARE OLD AND NEW BLUE CHIP, EIGHT OF THE NINE MAJORITY SHAREHOLDERS OF
OLD BLUE CHIP, AND THE DIRECTORS OF NEW BLUE CHIP (COLLECTIVELY CALLED
BLUE CHIP). 

RESPONDENT'S COMPLAINT ALLEGED, INTER ALIA, THAT THE PROSECTUS
PREPARED AND DISTRIBUTED BY BLUE CHIP IN CONNECTION WITH THE OFFERING
WAS MATERIALLY MISLEADING IN ITS OVERLY PESSIMISTIC APPRAISAL OF BLUE
CHIP'S STATUS AND FUTURE PROSPECTS.  IT ALLEGED THAT BLUE CHIP
INTENTIONALLY MADE THE PROSECTUS OVERLY PESSIMISTIC IN ORDER TO
DISCOURAGE RESPONDENT AND OTHER MEMBERS OF THE ALLEGEDLY LARGE CLASS
WHOM IT REPRESENTS FROM ACCEPTING WHAT WAS INTENDED TO BE A BARGAIN
OFFER, SO THAT THE REJECTED SHARES MIGHT LATER BE OFFERED TO THE PUBLIC
AT A HIGHER PRICE.  THE COMPLAINT ALLEGED THAT CLASS MEMBERS BECAUSE OF
AND IN RELIANCE OF THE FALSE AND MISLEADING PROSPECTUS FAILED TO
PURCHASE THE OFFERED UNITS.  RESPONDENT THEREFORE SOUGHT ON BEHALF OF
THE ALLEGED CLASS SOME $21,400,000 IN DAMAGES REPRESENTING THE LOST
OPPORTUNITY TO PURCHASE THE UNITS; THE RIGHT TO PURCHASE THE PREVIOUSLY
REJECTED UNITS AT THE 1968 PRICE; AND IN ADDITION, IT SOUGHT SOME
$25,000,000 IN EXEMPLARY DAMAGES. 

THE ONLY PORTION OF THE LITIGATION THUS INITIATED WHICH IS BEFORE US
IS WHETHER RESPONDENT MAY BASE ITS ACTION ON RULE 10B-5 OF THE
SECURITIES AND EXCHANGE COMMISSION WITHOUT HAVING EITHER BOUGHT OR SOLD
THE SECURITIES DESCRIBED IN THE ALLEGEDLY MISLEADING PROSPECTUS.  THE
DISTRICT COURT DISMISSED RESPONDENT'S COMPLAINT FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MIGHT BE GRANTED.  /2/ ON APPEAL TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, RESPONDENT PRESSED ONLY
ITS ASSERTED CLAIM UNDER RULE 10B-5, AND A DIVIDED PANEL OF THE COURT
OF APPEALS SUSTAINED ITS POSITION AND REVERSED THE DISTRICT COURT.  /3/
AFTER THE NINTH CIRCUIT DENIED REHEARING EN BANC, WE GRANTED BLUE
CHIP'S PETITION FOR CERTIORARI.  419 U.S. 992 (1974).  OUR
CONSIDERATION OF THE CORRECTNESS OF THE DETERMINATION OF THE COURT OF
APPEALS REQUIRES US TO CONSIDER WHAT LIMITATIONS THERE ARE ON THE CLASS
OF PLAINTIFFS WHO MAY MAINTAIN A PRIVATE CAUSE OF ACTION FOR MONEY
DAMAGES FOR VIOLATION OF RULE 10B-5, AND WHETHER RESPONDENT WAS WITHIN
THAT CLASS. 

 II 

DURING THE EARLY DAYS OF THE NEW DEAL, CONGRESS ENACTED TWO LANDMARK
STATUTES REGULATING SECURITIES.  THE 1933 ACT WAS DESCRIBED AS 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."  THE
SECURITIES EXCHANGE ACT OF 1934.  48 STAT. 881, AS AMENDED, 15 U.S.C.
SEC. 78A ET SEQ. (1934 ACT), WAS DESCRIBED AS AN ACT "TO PROVIDE FOR
THE REGULATION OF SECURITIES EXCHANGES AND OF OVER-THE-COUNTER MARKETS
OPERATING IN INTERSTATE AND FOREIGN COMMERCE AND THROUGH THE MAILS, TO
PREVENT INEQUITABLE AND UNFAIR PRACTICES ON SUCH EXCHANGES AND MARKETS,
AND FOR OTHER PURPOSES." 

THE VARIOUS SECTIONS OF THE 1933 ACT DEALT AT SOME LENGTH WITH THE
REQUIRED CONTENTS OF REGISTRATION STATEMENTS AND PROSPECTUSES, AND
EXPRESSLY PROVIDED FOR PRIVATE CIVIL CAUSES OF ACTION.  SECTION 11 (A)
GAVE A RIGHT OF ACTION BY REASON OF A FALSE REGISTRATION STATEMENT TO
"ANY PERSON ACQUIRING" THE SECURITY, AND SEC. 12 OF THAT ACT GAVE A
RIGHT TO SUE THE SELLER OF A SECURITY WHO HAD ENGAGED IN PROSCRIBED
PRACTICES WITH RESPECT TO PROSPECTUSES AND COMMUNICATION TO "THE PERSON
PURCHASING SUCH SECURITY FROM HIM." 

THE 1934 ACT WAS DIVIDED INTO TWO TITLES.  TITLE I WAS DENOMINATED "
REGULATION OF SECURITIES EXCHANGES," AND TITLE II WAS DENOMINATED "
AMENDMENTS TO SECURITIES ACT OF 1933."  SECTION 10 OF THAT ACT MAKES IT
"UNLAWFUL FOR ANY PERSON . . . (B) (TO USE OR EMPLOY, IN CONNECTION
WITH THE PURCHASE OR SALE OF ANY SECURITY REGISTERED ON A NATIONAL
SECURITIES EXCHANGE OR ANY SECURITY NOT SO REGISTERED, ANY MANIPULATIVE
OR DECEPTIVE DEVICE OR CONTRIVANCE IN CONTRAVENTION OF SUCH RULES AND
REGULATIONS AS THE COMMISSION MAY PRESCRIBE AS NECESSARY OR APPROPRIATE
IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF INVESTORS."  THE "
COMMISSION" REFERRED TO IN THE SECTION WAS THE SECURITIES AND EXCHANGE
COMMISSION CREATED BY SEC. 4 (A) OF THE 1934 ACT.  SECTION 29 OF THAT
ACT PROVIDED THAT "(EVERY CONTRACT MADE IN VIOLATION OF ANY PROVISION
OF THIS CHAPTER OR OF ANY RULE OR REGULATION THEREUNDER" SHOULD BE
VOID. 

IN 1942, ACTING UNDER THE AUTHORITY GRANTED TO IT BY SEC. 10 (B) OF
THE 1934 ACT, THE COMMISSION PROMULGATED RULE 10B-5, 17 CFR SEC.
240.10B-5, NOW PROVIDING AS FOLLOWS: 

     "SEC. 240.10B-5 EMPLOYMENT OF MANIPULATIVE AND DECEPTIVE
DEVICES. 

     " IT SHALL BE UNLAWFUL FOR ANY PERSON, DIRECTLY OR INDIRECTLY,

  BY THE USE OF ANY MEANS OR INSTRUMENTALITY OF INTERSTATE

  COMMERCE, OR OF THE MAILS OR OF ANY FACILITY OF ANY NATIONAL

  SECURITIES EXCHANGE, 

     "(A) TO EMPLOY ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD, 

     "(B) TO MAKE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR TO
OMIT

  TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE

  STATEMENTS MADE, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH

  THEY WERE MADE, NOT MISLEADING, OR "(C) TO ENGAGE IN ANY ACT,

  PRACTICE, OR COURSE OF BUSINESS WHICH OPERATES OR WOULD OPERATE

  AS A FRAUD OR DECEIT UPON ANY PERSON, "IN CONNECTION WITH THE

PURCHASE OR SALE OF ANY SECUITY." 

EXPRESS CIVIL REMEDY FOR ITS VIOLATION.  NOR DOES THE HISTORY OF THIS
PROVISION PROVIDE ANY INDICATION THAT CONGRESS CONSIDERED THE PROBLEM
OF PRIVATE SUITS UNDER IT AT THE TIME OF ITS PASSAGE.  SEE, E.G., NOTE,
IMPLIED LIABILITY UNDER THE SECURITIES EXCHANGE ACT, 61 HARV. L. REV.
858, 861 (1948); A. BROMBERG, SECURITIES LAW:  FRAUD--  SEC RULE 10B-5
SEC. 2.2 (300 - 340) (1969) (HEREINAFTER BROMBERG); S. REP. NO. 792,
73D CONG., 2D SESS., 5 - 6 (1934).  SIMILARLY THERE IS NO INDICATION
THAT THE COMMISSION IN ADOPTING RULE 10B-5 CONSIDERED THE QUESTION OF
PRIVATE CIVIL REMEDIES UNDER THIS PROVISION.  SEC SECURITIES EXCHANGE
ACT RELEASE NO. 3230 (1942); CONFERENCE ON CODIFICATION OF THE FEDERAL
SECURITIES LAWS, 22 BUS.  LAW.  793, 922 (1967); BIRNBAUM V. NEWPORT
STEEL CORP., 193 F.2D, AT 463; 3 L. LOSS, SECURITIES REGULATION 1469 N.
87 (2D ED. 1961). 

DESPITE THE CONTRAST BETWEEN THE PROVISIONS OF RULE 10B-5 AND THE
NUMEROUS CAREFULLY DRAWN EXPRESS CIVIL REMEDIES PROVIDED IN THE ACTS OF
BOTH 1933 AND 1934, /4/ IT WAS HELD IN 1946 BY THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA THAT THERE WAS
AN IMPLIED PRIVATE RIGHT OF ACTION UNDER THE RULE.  KARDON V. NATIONAL
GYPSUM CO., 69 F.SUPP.  512.  THIS COURT HAD NO OCCASION TO DEAL WITH
THE SUBJECT UNTIL 20-ODD YEARS LATER, AND AT THAT TIME WE CONFIRMED
WITH VIRTUALLY NO DISCUSSION THE OVERWHELMING CONSENSUS OF THE DISTRICT
COURTS AND COURTS OF APPEALS THAT SUCH A CAUSE OF ACTION DID EXIST. 
SUPERINTENDENT OF INSURANCE V. BANKERS LIFE & CAS. CO., 404 U.S. 6, 13
N. 9 (1971); AFFILIATED UTE CITIZENS V. UNITED STATES, 406 U.S. 128,
150 - 154 (1972).  SUCH A CONCLUSION WAS, OF COURSE, ENTIRELY
CONSISTENT WITH THE COURT'S RECOGNITION IN J.I. CASE CO. V. BORAK, 377
U.S. 426, 432 (1964), THAT PRIVATE ENFORCEMENT OF COMMISSION RULES MAY
"(PROVIDE) A NECESSARY SUPPLEMENT TO COMMISSION ACTION." 

WITHIN A FEW YEARS AFTER THE SEMINAL KARDON DECISION, THE COURT OF
APPEALS FOR THE SECOND CIRCUIT CONCLUDED THAT THE PLAINTIFF CLASS FOR
PURPOSES OF A PRIVATE DAMAGES ACTION UNDER SEC. 10 (B) AND RULE 10B-5
WAS LIMITED TO ACTUAL PURCHASERS AND SELLERS OF SECURITIES.  BIRNBAUM
V. NEWPORT STEEL CORP., SUPRA. 

THE COURT OF APPEALS IN THIS CASE DID NOT REPUDIATE BIRNBAUM;
INDEED, ANOTHER PANEL OF THAT COURT (IN AN OPINION BY JUDGE ELY) HAD
BUT A SHORT TIME EARLIER AFFIRMED THE RULE OF THAT CASE.  MOUNT CLEMENS
INDUSTRIES, INC. V. BELL, 464 F.2D 339 (1972).  BUT IN THIS CASE A
MAJORITY OF THE COURT OF APPEALS FOUND THAT THE FACTS WARRANTED AN
EXCEPTION TO THE BIRNBAUM RULE.  FOR THE REASONS HEREINAFTER STATED, WE
ARE OF THE OPINION THAT BIRNBAUM WAS RIGHTLY DECIDED, AND THAT IT BARS
RESPONDENT FROM AMINTAINING THIS SUIT UNDER RULE 10B-5. 

        III 

THE PANEL WHICH DECIDED BIRNBAUM CONSISTED OF CHIEF JUDGE SWAN AND
JUDGES LEARNED HAND AND AUGUSTUS HAND:  THE OPINION WAS WRITTEN BY THE
LAST NAMED.  SINCE BOTH SEC. 10 (B) AND RULE 10B-5 PROSCRIBED ONLY
FRAUD "IN CONNECTION WITH THE PURCHASE OR SALE" OF SECURITIES, AND
SINCE THE HISTORY OF SEC. 10 (B) REVEALED NO CONGRESSIONAL INTENTION TO
EXTEND A PRIVATE CIVIL REMEDY FOR MONEY DAMAGES TO OTHER THAN DEFRAUDED
PURCHASERS OR SELLERS OF SECURITIES, IN CONTRAST TO THE EXPRESS CIVIL
REMEDLY PROVIDED BY SEC. 16 (B) OF THE 1934 ACT, THE COURT CONCLUDED
THAT THE PLAINTIFF CLASS IN A RULE 10B-5 ACTION WAS LIMITED TO ACTUAL
PURCHASERS AND SELLERS.  193 F.2D, AT 463 - 464. 

JUST AS THIS COURT HAD NO OCCASION TO CONSIDER THE VALIDITY OF THE
KARDON HOLDING THAT THERE WAS A PRIVATE CAUSE OF ACTION UNDER RULE 10B
5 UNTIL 20-ODD YEARS LATER, NEARLY THE SAME PERIOD OF TIME HAS GONE BY
BETWEEN THE BIRNBAUM DECISION AND OUR CONSIDERATON OF THE CASE NOW
BEFORE US.  AS WITH KARDON, VIRTUALLY ALL LOWER FEDERAL COURTS FACING
THE ISSUE IN THE HUNDREDS OF REPORTED CASES PRESENTING THIS QUESTION
OVER THE PAST QUARTER CENTURY HAVE REAFFIRMED BIRNBAUM'S CONCLUSION
THAT THE PLAINTIFF CLASS FOR PURPOSES OF SEC. 10 (B) AND RULE 10B-5
PRIVATE DAMAGE ACTIONS IS LIMITED TO PURCHASERS AND SELLERS OF
SECURITIES.  SEE 6 L. LOSS, SECURITIES REGULATION 3617 (1969).  SEE,
E.G., HABERMAN V. MAURCHISON, 468 F.2D 1305, 1311 (CA2 1972); LANDY V.
FDIC, 486 F.2D 139, 156 - 157 (CA3 1973), CERT. DENIED, 416 U.S. 960
(1974); SARGENT V. GENESCO, INC., 492 F.2D 750, 763 (CA5 1974); SIMMONS
V. WOLFSON, 428 F.2D 455, 456 (CA6 1970), CERT. DENIED, 400 U.S. 999
(1971); CITY NATIONAL BANK V. VANDERBOOM, 422 F.2D 221, 227 - 228
(CA8), CERT. DENIED, 399 U.S. 905 (1970); MOUNT CLEMENS INDUSTRIES,
INC. V. BELL, SUPRA; JENSEN V. VOYLES, 393 F.2D 131, 133 (CA10 1968). 
COMPARE EASON V. GENERAL MOTORS ACCEPTANCE CORP., 490 F.2D 654 (CA7
1973), CERT. DENIED, 416 U.S. 960 (1974), WITH DASHO V. SUSQUEHANNA
CORP., 380 F.2D 262 (CA7), CERT. DENIED SUB NOM. BARD V. DASHO, 389
U.S. 977 (1967). 

IN 1957 AND AGAIN IN 1959, THE SECURITIES AND EXCHANGE COMMISSION
SOUGHT FROM CONGRESS AMENDMENT OF SEC. 10 (B) TO CHANGE ITS WORDING
FROM "IN CONNECTION WITH THE PURCHASE OR SALE OF ANY SECURITY" TO "IN
CONNECTION WITH THE PURCHASE OR SALE OF, OR ANY ATTEMPT TO PURCHASE OR
SELL, ANY SECURITY."  103 CONG. REC. 11636 (1957) (EMPHASIS ADDED); SEC
LEGISLATION, HEARINGS ON S. 1178 - 1182 BEFORE A SUBCOMMITTEE OF THE
SENATE COMMITTEE ON BANKING & CURRENCY, 86TH CONG., 1ST SESS., 367 -
368 (1959); S. 2545, 85TH CONG., 1ST SESS. (1957); S. 1179, 86TH CONG.,
1ST SESS. (1959).  IN THE WORDS OF A MEMORANDUM SUBMITTED BY THE
COMMISSION TO A CONGRESSIONAL COMMITTEE, THE PURPOSE OF THE PROPOSED
CHANGE WAS "TO MAKE SECTION 10 (B) ALSO APPLICABLE TO MANIPULATIVE
ACTIVITIES IN CONNECTION WITH ANY ATTEMPT TO PURCHASE OR SELL ANY
SECURITY."  HEARINGS ON S. 1178 - 1182, SUPRA, AT 331.  OPPOSITION TO
THE AMENDMENT WAS BASED ON FEARS OF THE EXTENSION OF CIVIL LIABILITY
UNDER SEC. 10 (B) THAT IT WOULD CAUSE.  ID., AT 368.  NEITHER CHANGE
WAS ADOPTED BY CONGRESS.     THE LONGSTANDING ACCEPTANCE BY THE COURTS,
COUPLED WITH CONGRESS'  FAILURE TO REJECT BIRNBAUM'S REASONABLE
INTERPRETATION OF THE WORDING OF SEC. 10 (B), WORDING WHICH ID SIRECTED
TOWARD INJURY SUFFERED "IN CONNECTION WITH THE PURCHASE OR SALE" OF
SECURITIES, /5/ ARGUES SIGNIFICANTLY IN FAVOR OF ACCEPTANCE OF THE
BIRNBAUM RULE BY THIS COURT.  BLAU V. LEHMAN, 368 U.S. 403, 413
(1962).     AVAILABLE EVIDENCE FROM THE TEXTS OF THE 1933 AND 1934 ACTS
AS TO THE CONGRESSIONAL SCHEME IN THIS REGARD, THOUGH NOT CONCLUSIVE,
SUPPORTS THE RESULT REACHED BY THE BIRNBAUM COURT.  THE WORDING OF SEC.
10 (B) DIRECTED AT FRAUD "IN CONNECTION WITH THE PURCHASE OR SALE"  OF
SECURITIES STANDS IN CONTRAST WITH THE PARALLEL ANTIFRAUD PROVISION OF
THE 1933 ACT, SEC. 17 (A), AS AMENDED, 68 STAT. 686, 15 U.S.C. SEC.
77Q, /6/ REACHING FRAUD "IN THE OFFER OR SALE" OF SECURITIES.  CF. SEC.
5 OF THE 1933 ACT, 15 U.S.C. SEC. 77E.  WHEN CONGRESS WISHED TO PROVIDE
A REMEDY TO THOSE WHO NEITHER PURCHASE NOR SELL SECURITIES, IT HAD
LITTLE TROUBLE IN DOING SO EXPRESSLY.  CF. SEC. 16 (B) OF THE 1934 ACT,
15 U.S.C. SEC. 78P (B). 

LIMITS RECOVERY IN ANY PRIVATE DAMAGES ACTION BROUGHT UNDER THE 1934
ACT TO "ACTUAL DAMAGES," LIKEWISE PROVIDES SOME SUPPORT FOR THE
PURCHASER-SELLER RULE.  SEE, E.G., 2 BROMBERG SEC. 8.8 (221).  WHILE
THE DAMAGES SUFFERED BY PURCHASERS AND SELLERS PURSUING A SEC. 10 (B)
CAUSE OF ACTION MAY ON OCCASION BE DIFFICULT TO ASCERTAIN, AFFILIATED
UTE CITIZENS V. UNITED STATES, 406 U.S., AT 155, IN THE MAIN SUCH
PURCHASERS AND SELLERS AT LEAST SEEK TO BASE RECOVERY ON A DEMONSTRABLE
NUMBER OF SHARES TRADED.  IN CONTRAST, A PUTATIVE PLAINTIFF, WHO
NEITHER PURCHASES NOR SELLS SECURITIES BUT SUES INSTEAD FOR INTANGIBLE
ECONOMIC INJURY SUCH AS LOSS OF A NONCONTRACTUAL OPPORTUNITY TO BUY OR
SELL, IS MORE LIKELY TO BE SEEKING A LARGELY CONJECTURAL AND
SPECULATIVE RECOVERY IN WHICH THE NUMBER OS SHARES INVOLVED WILL DEPEND
ON THE PLAINTIFF'S SUBJECTIVE HYPOTHESIS.  CF. ESTATE COUNSELING
SERVICE, INC. V. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., 303 F.2D
527, 533 (CA10 1962); LEVINE V. SEILON, INC., 439 F.2D 328, 335 (CA2
1971); WOLF V. FRANK, 477 F.2D 467, 478 (CA5 1973). 

ONE OF THE JUSTIFICATIONS ADVANCED FOR IMPLICATION OF A CAUSE OF
ACTION UNDER SEC. 10 (B) LIES IN SEC. 29 (B) OF THE 1934 ACT, 15 U.S.C.
SEC. 78CC (B), PROVIDING THAT A CONTRACT MADE IN VIOLATION OF ANY
PROVISIONS OF THE 1934 ACT IS VIODABLE AT THE OPTION OF THE DECEIVED
PARTY.  /7/ SEE, E.G., KARDON V. NATIONAL GYPSUM CO., 69 F.SUPP., AT
514; SLAVIN V. GERMANTOWN FIRE INSURANCE CO., 174 F.2D 799, 815 (CA3
1949); FISCHMAN V. RAYTHEON MFG. CO., 188 F.2D 783, 787 (. 4 (CA2
1951); 1 BROMBERG SEC. 2.4 (1) (B).  BUT THAT JUSTIFICATION IS ABSENT
WHEN THERE IS NO ACTUAL PURCHASE OR SALE OF SECURITIES, OR A CONTRACT
TO PURCHASE OR SELL, AFFECTED OR TAINTED BY A VIOLATION OF SEC. 10
(B).  CF. MOUNT CLEMENS INDUSTRIES, INC. V. BELL, SUPRA. 

THE PRINCIPAL EXPRESS NONDERIVATIVE PRIVATE CIVIL REMEDIES, CREATED
BY CONGRESS CONTEMPORANEOUSLY WITH THE PASSAGE OF SEC. 10 (B), FOR
VIOLATIONS OF VARIOUS PROVISIONS OF THE 1933 AND 1934 ACTS ARE BY THEIR
TERMS EXPRESSLY LIMITED TO PURCHASERS OR SELLERS OF SECURITIES.  THUS
SEC. 11 (A) OF THE 1933 ACT CONFINES THE CAUSE OF ACTION IT GRANTS TO
"ANY PERSON ACQUIRING SUCH SECURITY" WHILE THE REMEDLY GRANTED BY SEC.
12 OF THAT ACT IS LIMITED TO THE "PERSON PURCHASING SUCH SECURITY." 
MANIPULATIVE DEVICES, LIMITS THE EXPRESS CIVIL REMEDY PROVIDED FOR ITS
VIOLATION TO "ANY PERSON WHO SHALL PURCHASE OR SELL ANY SECURITY" IN A
TRANSACTION AFFECTED BY A VIOLATION OF THE PROVISION.  SECTION 18 OF
THE 1934 ACT, PROHIBITING FALSE OR MISLEADING STATEMENTS IN REPORTS OR
OTHER DOCUMENTS REQUIRED TO BE FILED BY THE 1934 ACT, LIMITS THE
EXPRESS REMEDY PROVIDED FOR ITS VIOLATION TO "ANY PERSON . . . WHO . .
. SHALL HAVE PURCHASED OR SOLD A SECURITY AT A PRICE WHICH WAS AFFECTED
BY SUCH STATEMENT.  . . ."  IT WOULD INDEED BY ANOMALOUS TO IMPUTE TO
CONGRESS AN INTENTION TO EXPAND THE PLAINTIFF CLASS FOR A JUDICIALLY
IMPLIED CAUSE OF ACTION BEYOND THE BOUNDS IT DELINEATED FOR COMPARABLE
EXPRESS CAUSES OF ACTION.  /8/ 

HAVING SAID ALL THIS, WE WOULD BE NO MEANS BE UNDERSTOOD AS
SUGGESTING THAT WE ARE ABLE TO DIVINE FROM THE LANGUAGE OF SEC. 10 (B)
THE EXPRESS "INTENT OF CONGRESS" AS TO THE CONTOURS OF A PRIVATE CAUSE
OF ACTION UNDER RULE 10B-5.  WHEN WE DEAL WITH PRIVATE ACTIONS UNDER
RULE 10B-5, WE DEAL WITH A JUDICIAL OAK WHICH HAS GROWN FROM LITTLE
MORE THAN A LEGISLATIVE ACORN.  SUCH GROWTH MAY BE QUITE CONSISTENT
WITH THE CONGRESSIONAL ENACTMENT AND WITH THE ROLE OF THE FEDERAL
JUDICIARY IN INTERPRETING IT, SEE J.I. CASE CO. V. BORAK, SUPRA, BUT IT
WOULD BE DISINGENUOUS TO SUGGEST THAT EITHER CONGRESS IN 1934 OR THE
SECURITIES AND EXCHANGE COMMISSION IN 1942 FOREORDAINED THE PRESENT
STATE OF THE LAW WITH RESPECT TO RULE 10B-5.  IT IS THEREFORE PROPER
THAT WE CONSIDER, IN ADDITON TO THE FACTORS ALREADY DISCUSSED, WHAT MAY
BE DESCRIBED AS POLICY CONSIDERATIONS WHEN WE COME TO FLESH OUT THE
PORTIONS OF THE LAW WITH RESPECT TO WHICH NEITHER THE CONGRESSIONAL
ENACTMENT NOR THE ADMINISTRATIVE REGULATIONS OFFER CONCLUSIVE
GUIDANCE. 

THREE PRINCIPAL CLASSES OF POTENTIAL PLAINTIFFS ARE PRESENTLY BARRED
BY THE BIRNBAUM RULE.  FIRST ARE POTENTIAL PURCHASERS OF SHARES, EITHER
IN A NEW OFFERING OR ON THE NATION'S POST-DISTRIBUTION TRADING MARKETS,
WHO ALLEGE THAT THEY DECIDED NOT TO PURCHASE BECAUSE OF AN UNDULY
GLOOMY REPRESENTATION OR THE OMISSION OF AVORABLE MATERIAL WHICH MADE
THE ISSUER APPEAR TO BE A LESS FAVORABLE INVESTMENT VEHICLE THAN IT
ACTUALLY WAS.  SECOND ARE ACTUAL SHAREHOLDERS IN THE ISSUER WHO ALLEGE
THAT THEY DECIDED NOT TO SELL THEIR SHARES BECAUSE OF AN UNDULY ROSY
REPRESENTATION OR A FAILURE TO DISCLOSE UNFAVORABLE MATERIAL.  THIRD
ARE SHAREHOLDERS, CREDITORS, AND PERHAPS OTHERS RELATED TO AN ISSUER
WHO SUFFERED LOSS IN THE VALUE OF THEIR INVESTMENT DUE TO CORPORATE OR
INSIDER ACTIVITIES IN CONNECTION WITH THE PURCHASE OR SALE OR
SECURITIES WHICH VIOLATE RULE 10B-5.  IT HAS BEEN HELD THAT SHAREHOLDER
MEMBERS OF THE SECOND AND THIRD OF THESE CLASSES MAY FREQUENTLY BE ABLE
TO CIRCUMVENT THE BIRNBAUM LIMITATION THROUGH BRINGING A DERIVATIVE
ACTION ON BEHALF OF THE CORPORATE ISSUER IF THE LATTER IS ITSELF A
PURCHASER OR SELLER OF SECURITIES.  SEE, E.G., SCHOENBAUM V.
FIRSTBROOK, 405 F.2D 215, 219 (CA2 1968), CERT. DENIED SUB NOM. MANLEY
V. SCHOENBAUM, 395 U.S. 906 (1969).  BUT THE FIRST OF THESE CLASSES, OF
WHICH RESPONDENT IS A MEMBER, CANNOT CLAIM THE BENEFIT OF SUCH A RULE. 

A GREAT MAJORITY OF THE MANY COMMENTATORS ON THE ISSUE BEFORE US
HAVE TAKEN THE VIEW THAT THE BIRNBAUM LIMITATION ON THE PLAINTIFF CLASS
IN A RULE 10B-5 ACTION FOR DAMAGES IN AN ARBITRARY RESTRICTION WHICH
UNREASONABLY PREVENTS SOME DESERVING PLAINTIFFS FROM RECOVERING DAMAGES
WHICH HAVE IN FACT BEEN CAUSED BY VIOLATIONS OF RULE 10B-5.  SEE, E.G.,
LOWENFELS, THE DEMISE OF THE BIRNBAUM DOCTRINE: A NEW ERA FOR RULE 10B
5, 54 VA. L. REV. 268 (1968).  THE SECURITIES AND EXCHANGE COMMISSION
HAS FILED AN AMICUS BRIEF IN THIS CASE ESPOUSING THAT SAME VIEW.  WE
HAVE NO DOUBT THAT THIS IS INDEED A DISADVANTAGE OF THE BIRNBAUM RULE,
/9/ AND IF IT HAD NO COUNTERVAILING ADVANTAGES IT WOULD BE UNDESIRABLE
AS A MATTER OF POLICY, HOWEVER MUCH IT MIGHT BE SUPPORTED BY PRECEDENT
AND LEGISLATIVE HISTORY.  BUT WE ARE OF THE OPINION THAT THERE ARE
COUNTERVAILING ADVANTAGES TO THE BIRNBAUM RULE, PURELY AS A MATTER OF
POLICY, ALTHOUGH THOSE ADVANTAGES ARE MORE DIFFICULT TO ARTICULATE THAN
IS THE DISADVANTAGE. 

THERE HAS BEEN WIDESPREAD RECOGNITION THAT LITIGATION UNDER RULE 10B
5 PRESENTS A DANGER OF VEXATIOUSNESS DIFFERENT IN DEGRESS AND IN KIND
FROM THAT WHICH ACCOMPANIES LITIGATION IN GENERAL.  THIS FACT WAS
RECOGNIZED BY JUDGE BROWNING IN HIS OPINION FOR THE MAJORITY OF THE
COURT OF APPEALS IN THIS CASE, 492 F.2D, AT 141, AND BY JUDGE
HUFSTEDLER IN HER DISSENTING OPINION WHEN SHE SAID: 

" THE PURCHASER-SELLER RULE HAS MAINTAINED THE BALANCES BUILT

  INTO THE CONGRESSIONAL SCHEME BY PERMITTING DAMAGE ACTIONS TO BE

  BROUGHT ONLY BY THOSE PERSONS WHOSE ACTIVE PARTICIPATION IN THE

  MARKETING TRANSACTION PROMISES ENFORCEMENT OF THE STATUTE WITHOUT

  UNDUE RISK OF ABUSE OF THE LITIGATION PROCESS AND WITHOUT

  DISTORTING THE SECURITIES MARKET."  ID., AT 147. 

JUDGE FRIENDLY IN COMMENTING ON ANOTHER ASPECT OF RULE 10B-5
LITIGATION HAS REFERRED TO THE POSSIBILITY THAT UNDULY EXPANSIVE
IMPOSITON OF CIVIL LIABILITY "WILL LEAD TO LARGE JUDGMENTS, PAYABLE IN
THE LAST ANALYSIS BY INNOCENT INVESTORS, FOR THE BENEFIT OF SPECULATORS
AND THEIR LAWYERS.  . . ."  SEC V. TEXAS GULF SULPHUR CO., 401 F.2D
833, 867 (CA2 1968) (CONCURRING OPINION).  SEE ALSO BOONE & MC GOWAN,
STANDING TO SUE UNDER SEC RULE 10B-5, 49 TEX. L.REV.  617, 648 - 649
(1971). 

WE BELIEVE THAT THE CONCERN EXPRESSED FOR THE DANGER OF VEXATIOUS
LITIGATION WHICH COULD RESULT FROM A WIDELY EXPANDED CLASS OF
PLAINTIFFS UNDER RULE 10B-5 IS FOUNDED IN SOMETHING MORE SUBSTANTIAL
THAN THE COMMON COMPLAINT OF THE MANY DEFENDANTS WHO WOULD PREFER
AVOIDING LAWSUITS ENTIRELY TO EITHER SETTLING THEM OR TRYING THEM. 
THESE CONCERNS HAVE TWO LARGELY SEPARATE GROUNDS. 

THE FIRST OF THESE CONCERNS IS THAT IN THE FIELD OF FEDERAL
SECURITIES LAWS GOVERNING DISCLOSURE OF INFORMATION EVEN A COMPLAINT
WHICH BY OBJECTIVE STANDARDS MAY HAVE VERY LITTLE CHANCE OF SUCCESS AT
TRIAL HAS A SETTLEMENT VALUE TO THE PLAINTIFF OUT OF ANY PROPORTION TO
ITS PROSPECT OF SUCCESS AT TRIAL SO LONG AS HE MAY PREVENT THE SUIT
FROM BEING RESOLVED AGAINST HIM BY DISMISSAL OR SUMMARY JUDGMENT.  THE
VERY PENDENCY OF THE LAWSUIT MAY FRUSTRATE OR DELAY NORMAL BUSINESS
ACTIVITY OF THE DEFENDANT WHICH IS TOTALLY UNRELATED TO THE LAWSUIT. 
SEE, E.G., SARGENT, THE SEC AND THE INDIVIDUAL INVESTOR:  RESTORING HIS
CONFIDENCE IN THE MARKET, 60 VA. L. REV. 553, 562 - 572 (1974); DOOLEY,
THE EFFECTS OF CIVIL LIABILITY ON INVESTMENT BANKING AND THE NEW ISSUES
MARKET, 58 VA. L. REV. 776, 822 - 843 (1972). 

CONGRESS ITSELF RECOGNIZED THE POTENTIAL FOR NUISANCE OR "STRIKE"
SUITS IN THIS TYPE OF LITIGATION, AND IN TITLE II OF THE 1934 ACT
AMENDED SEC. 11 OF THE 1933 ACT TO PROVIDE THAT: 

" IN ANY SUIT UNDER THIS OR ANY OTHER SECTION OF THIS TITLE THE
COURT MAY, IN ITS DISCRETION, REQUIRE AN UNDERTAKING FOR THE PAYMENT OF
THE COSTS OF SUCH SUIT, INCLUDING REASONABLE ATTORNEY'S FEES.  . . ." 
SEC. 206 (D), 48 STAT. 881, 908. 

SENATOR FLETCHER, CHAIRMAN OF THE SENATE BANKING AND FINANCE
COMMITTEE, IN INTRODUCING TITLE II OF THE 1934 ACT ON THE FLOOR OF THE
SENATE, STATED IN EXPLAINING THE AMENDMENT TO SEC. 11 (E):  " THIS
AMENDMENT IS THE MOST IMPORTANT OF ALL."  78 CONG. REC. 8669.  AMONG
ITS PURPOSES WAS TO PROVIDE "A DEFENSE AGAINST BLACKMAIL SUITS." 
IBID. 

WHERE CONGRESS IN THOSE SECTIONS OF THE 1933 ACT WHICH EXPRESSLY
CONFERRED A PRIVATE CAUSE OF ACTION FOR DAMAGES, ADOPTED A PROVISION
UNIFORMLY REGARDED AS DESIGNED TO DETER "STRIKE" OR NUISANCE ACTIONS,
COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541, 548 - 549 (1949), THAT
FACT ALONE JUSTIFIES OUR CONSIDERATION OF SUCH POTENTIAL IN DETERMINING
THE LIMITS OF THE CLASS OF PLAINTIFFS WHO MAY SUE IN AN ACTION WHOLLY
IMPLIED FROM THE LANGUAGE OF THE 1934 ACT. 

THE POTENTIAL FOR POSSIBLE ABUSE OF THE LIBERAL DISCOVERY PROVISIONS
OF THE FEDERAL RULES OF CIVIL PROCEDURE MAY LIKEWISE EXIST IN THIS TYPE
OF CASE TO A GREATER EXTENT THAN THEY DO IN OTHER LITIGATION.  THE
PROSPECT OF EXTENSIVE DEPOSITON OF THE DEFENDANT'S OFFICERS AND
ASSOCIATES AND THE CONCOMITANT OPPORTUNITY FOR EXTENSIVE DISCOVERY OF
BUSINESS DOCUMENTS, IS A COMMON OCCURRENCE IN THIS AND SIMILAR TYPES OF
LITIGATION.  TO THE EXTENT THAT THIS PROCESS EVENTUALLY PRODUCES
RELEVANT EVIDENCE WHICH IS USEFUL IN DETERMINING THE MERITS OF THE
CLAIMS ASSERTED BY THE PARTIES, IT BEARS THE IMPRIMATUR OF THOSE RULES
AND OF THE MANY CASES LIBERALLY INTERPRETING THEM.  BUT TO THE EXTENT
THAT IT PERMITS A PLAINTIFF WITH A LARGELY GROUNDLESS CLAIM TO SIMPLY
TAKE UP THE TIME OF A NUMBER OF OTHER PEOPLE, WITH THE RIGHT TO DO SO
REPRESENTING AN IN TERROREM INCREMENT OF THE SETTLEMENT VALUE, RATHER
THAN A REASONABLE FOUNDED HOPE THAT THE PROCESS WILL REVEAL RELEVANT
EVIDENCE, IT IS A SOCIAL COST RATHER THAN A BENEFIT.  YET TO BROADLY
EXPAND THE CLASS OF PLAINTIFFS WHO MAY SUE UNDER RULE 10B-5 WOULD
APPEAR TO ENCOURAGE THE LEAST APPEALING ASPECT OF THE USE OF THE
DISCOVERY RULES. 

WITHOUT THE BIRNBAUM RULE, AN ACTION UNDER RULE 10B-5 WILL TURN
LARGELY ON WHICH ORAL VERSION OF A SERIES OF OCCURRENCES THE JURY MAY
DECIDE TO CREDIT, AND THEREFORE NO MATTER HOW IMPROBABLE THE
ALLEGATIONS OF THE PLAINTIFF, THE CASE WILL BE VIRTUALLY IMPOSSIBLE TO
DISPOSE OF PRIOR TO TRIAL OTHER THAN BY SETTLEMENT.  IN THE WORDS OF
JUDGE HUFSTEDLER'S DISSENTING OPINION IN THE COURT OF APPEALS: 

     " THE GREAT EASE WITH WHICH PLAINTIFFS CAN ALLEGE THE

  REQUIREMENTS FOR THE MAJORITY'S STANDING RULE AND THE GREATER

  DIFFICULTY THAT PLAINTIFFS ARE GOING TO HAVE PROVING THE

  ALLEGATIONS SUGGESTS THAT THE MAJORITY'S RULE WILL ALLOW A

  RELATIVELY HIGH PROPORTION OF 'BAD' CASES INTO COURT.  THE RISK

  OF STRIKE SUITS IS PARTICULARLY HIGH IS SUCH CASES; ALTHOUGH THEY

  ARE DIFFICULT TO PROVE AT TRIAL, THEY ARE EVEN MORE DIFFICULT TO

  DISPOSE OF BEFORE TRIAL."  492 F.ID, AT 147 N. 9. 

THE BIRNBAUM RULE, ON THE OTHER HAND, PERMITS EXCLUSION PRIOR TO
TRIAL OF THOSE PLAINTIFFS WHO WERE NOT THEMSELVES PURCHASERS OR SELLERS
OF THE STOCK IN QUESTION.  THE FACT OF PURCHASE OF STOCK AND THE FACT
OF SALE OF STOCK ARE GENERALLY MATTERS WHICH ARE VERIFIABLE BY
DOCUMENTATION, AND DO NOT DEPEND UPON ORAL RECOLLECTION, SO THAT
FAILURE TO QUALIFY UNDER THE BIRNBAUM RULE IS A MATTER THAT CAN
NORMALLY BE ESTABLISHED BY THE DEFENDANT EITHER ON A MOTION TO DISMISS
OR ON A MOTION FOR SUMMARY JUDGMENT.     OBVIOUSLY THERE IS NO GENERAL
LEGAL PRINCIPLE THAT COURTS IN FASHIONING SUBSTANTIVE LAW SHOULD DO SO
IN A MANNER WHICH MAKES IT EASIER, RATHER THAN MORE DIFFICULT, FOR A
DEFENDANT TO OBTAIN A SUMMARY JUDGMENT.  BUT IN THIS TYPE OF
LITIGATION, WHERE THE MERE EXISTENCE OF AN UNRESOLVED LAWSUIT HAS
SETTLEMENT VALUE TO THE PLAINTIFF NOT ONLY BECAUSE OF THE POSSIBILITY
THAT HE MAY PREVAIL ON THE MERITS, AN ENTIRELY LEGITIMATE COMPONENT OF
SETTLEMENT VALUE, BUT BECAUSE OF THE THREAT OF EXTENSIVE DISCOVERY AND
DISRUPTION OF NORMAL BUSINESS ACTIVITIES WHICH MAY ACCOMPANY A LAWSUIT
WHICH IS GROUNDLESS IN ANY EVENT, BUT CANNOT BE PROVED SO BEFORE TRIAL,
SUCH A FACTOR IS NOT TO BE TOTALLY DISMISSED.  THE BIRNBAUM RULE
UNDOUBTEDLY EXCLUDES PLAINTIFFS WHO HAVE IN FACT BEEN DAMAGED BY
VIOLATIONS OF RULE 10B-5, AND TO THAT EXTENT IT IS UNDESIRABLE.  BUT IT
ALSO SEPARATES IN A READILY DEMONSTRABLE MANNER THE GROUP OF PLAINTIFFS
WHO ACTUALLY PURCHASED OR ACTUALLY SOLD, AND WHOSE VERSION OF THE FACTS
IS THEREFORE MORE LIKELY TO BE BELIEVED BY THE TRIER OF FACT, FROM THE
VASTLY LARGER WORLD OF POTENTIAL PLAINTIFFS WHO MIGHT SUCCESSFULLY
ALLEGE A CLAIM BUT COULD SELDOM SUCCEED IN PROVING IT.  AND THIS FACT
IS ONE OF ITS ADVANTAGES. 

THE SECOND GROUND FOR FEAR OF VEXATIOUS LITIGATION IS BASED ON THE
CONCERN THAT, GIVEN THE GENERALIZED CONTOURS OF LIABILITY, THE
ABOLITION OF THE BIRNBAUM RULE WOULD THROW OPEN TO THE TRIER OF FACT
MANY RATHER HAZY ISSUES OF HISTORICAL FACT THE PROOF OF WHICH DEPENDED
ALMOST ENTIRELY ON ORAL TESTIMONY.  WE IN NO WAY DISPARAGE THE WORTH
AND FREQUENT HIGH VALUE OF ORAL TESTIMONY WHEN WE SAY THAT DANGERS OF
ITS ABUSE APPEAR TO EXIST IN THIS TYPE OF ACTION TO A PECULIARLY HIGH
DEGREE.  THE SECURITIES AND EXCHANGE COMMISSION, WHILE OPPOSING THE
ADOPTION OF THE BIRNBAUM RULE BY THIS COURT, STATES THAT IT AGREES WITH
PETITIONERS "THAT THE EFFECT, IF ANY OF A DECEPTIVE PRACTICE ON SOMEONE
WHO HAS NEITHER PURCHASED NOR SOLD SECURITIES MAY BE MORE DIFFICULT TO
DEMONSTRATE THAN IS THE EFFECT ON A PURCHASER OR SELLER."  BRIEF FOR
THE SECURITIES AND EXCHANGE COMMISSION AS AMICUS CURIAE 24 - 25.  THE
BRIEF ALSO POINTS OUT THAT FRIVOLOUS SUITS CAN BE BROUGHT WHATEVER THE
RULES OF STANDING, AND REMINDS US OF THIS COURT'S RECOGNITION "IN A
DIFFERENT CONTEXT" THAT "THE EXPENSE AND ANNOYANCE OF LITIGATION IS
'PART OF THE SOCIAL BURDEN OF LIVING UNDER GOVERNMENT.'"  ID., AT 24 N.
30.  PETROLEUM EXPLORATION, INC. V. PUBLIC SERVICE COMM'N, 304 U.S.
209, 222 (1938).  THE COMMISSION SUGGESTS THAT IN PARTICULAR CASES
ADDITIONAL REQUIREMENTS OF CORROBORATION OF TESTIMONY AND MORE LIMITED
MEASURE OF DAMAGES WOULD CORRECT THE DANGERS OF AN EXPANDED CLASS OF
PLAINTIFFS. 

BUT THE VERY NECESSITY, OR AT LEAST THE DESIRABILITY, OF FASHIONING
UNIQUE RULES OF CORROBORATION AND DAMAGES AS A CORRELATIVE TO THE
ABOLITION OF THE BIRNBAUM RULE SUGGESTS THAT THE RULE ITSELF MAY HAVE
SOMETHING TO BE SAID FOR IT. 

IN CONSIDERING THE POLICY UNDERLYING THE BIRNBAUM RULE, IT IS NOT
INAPPROPRIATE TO ADVERT BRIEFLY TO THE TORT OF MISREPRESENTATION AND
DECEIT, TO WHICH A CLAIM UNDER SEC. 10B-5 CERTAINLY HAS SOME
RELATIONSHIP.  ORIGINALLY UNDER THE COMMON LAW OF ENGLAND SUCH AN
ACTION WAS NOT AVAILABLE TO ONE OTHER THAN A PARTY TO A BUSINESS
TRANSACTION.  THAT LIMITATION WAS ELIMINATED IN PASLEY V. FREEMAN, 3
T.R. 51, 100 ENG. REP. 450 (1789).  UNDER THE EARLIER LAW THE
MISREPRESENTATION WAS GENERALLY REQUIRED TO BE ONE OF FACT, RATHER THAN
OPINION, BUT THAT REQUIREMENT, TOO, WAS GRADUALLY RELAXED.  LORD
BOWEN'S FAMOUS COMMENT IN EDGINGTON V. FITZMAURICE, (1882) L.R. 29 CH.
DIV. 459, 483, THAT "THE STATE OF A MAN'S MIND IS AS MUCH A FACT AS THE
STATE OF HIS DIGESTION," SUGGESTS THAT THIS DISTINCTION, TOO, MAY HAVE
BEEN SOMEWHAT ARBITRARY.  AND IT HAS LONG BEEN ESTABLISHED IN THE
ORDINARY CASE OF DECEIT THAT A MISREPRESENTATION WHICH LEADS TO A
REFUSAL TO PURCHASE OR TO SELL IS ACTIONABLE IN JUST THE SAME WAY AS A
REPRESENTATION WHICH LEADS TO THE CONSUMMATION OF PURCHASE OR SALE. 
BUTLER V. WATKINS, 13 WALL.  456 (1872).  THESE ASPECTS OF THE
EVOLUTION OF THE TORT OF DECEIT AND MISREPRESENTATION SUGGEST A
DIRECTION AWAY FROM RULES SUCH AS BIRNBAUM. 

BUT THE TYPICAL FACT SITUATION IN WHICH THE CLASSIC TORT OF
MISREPRESENTATION AND DECEIT EVOLVED WAS LIGHT YEARS AWAY FROM THE
WORLD OF COMMERCIAL TRANSACTIONS TO WHICH RULE 10B-5 IS APPLICABLE. 
THE PLAINTIFF IN BUTLER, SUPRA, FOR EXAMPLE, CLAIMED THAT HE HAD HELD
OFF THE MARKET A PATENTED MACHINE FOR TYING COTTON BALES WHICH HE HAD
DEVELOPED BY REASON OF THE FRAUDULENT REPRESENTATIONS OF THE
DEFENDANT.  BUT THE REPORT OF THE CASE LEAVES NO DOUBT THAT THE
PLAINTIFF AND DEFENDANT MET WITH ONE ANOTHER IN NEW ORLEANS, THAT ONE
PRESENTED A DRAFT AGREEMENT TO THE OTHER, AND THAT LETTERS WERE
EXCHANGED RELATING TO THAT AGREEMENT.  ALTHOUGH THE CLAIM TO DAMAGES
WAS BASED ON AN ALLEGEDLY FRAUDULENTLY INDUCED DECISION NOT TO PUT THE
MACHINES ON THE MARKET, THE PLAINTIFF AND THE DEFENDANT HAD CONCEDEDLY
BEEN ENGAGED IN THE COURSE OF BUSINESS DEALINGS WITH ONE ANOTHER, AND
WOULD PRESUMABLY HAVE RECOGNIZED ONE ANOTHER ON THE STREET HAD THEY
MET. 

IN TODAY'S UNIVERSE OF TRANSACTIONS GOVERNED BY THE 1934 ACT,
PRIVITY OF DEALING OR EVEN PERSONAL CONTACT BETWEEN POTENTIAL DEFENDANT
AND POTENTIAL PLAINTIFF IS THE EXCEPTION AND NOT THE RULE.  THE STOCK
OF ISSUERS IS LISTED ON FINANCIAL EXCHANGES UTILIZED BY TENS OF
MILLIONS OF INVESTORS, AND CORPORATE REPRESENTATIONS REACH A POTENTIAL
AUDIENCE, ENCOMPASSING NOT ONLY THE DILIGENT FEW WHO PERUSE FILED
CORPORATE REPORTS OR THE SIZABLE NUMBER OF SUBSCRIBERS TO FINANCIAL
JOURNALS, BUT THE READERSHIP OF THE NATION'S DAILY NEWSPAPERS. 
OBVIOUSLY NEITHER THE FACT THAT ISSUERS OR OTHER POTENTIAL DEFENDNATS
UNDER RULE 10B-5 REACH A LARGE NUMBER OF POTENTIAL INVESTORS, OR THE
FACT THAT THEY ARE REQUIRED BY LAW TO MAKE THEIR DISCLOSURES CONFORM TO
CERTAIN STANDARDS, SHOULD IN ANY WAY ABSOLVE THEM FROM LIABILITY FOR
MISCONDUCT WHICH PROSCRIBED BY RULE 10B-5. 

BUT IN THE ABSENCE OF THE BIRNBAUM RULE, IT WOULD BE SUFFICIENT FOR
A PLAINTIFF TO PROVE THAT HE HAD FAILED TO PURCHASE OR SELL STOCK BY
REASON OF A DEFENDANT'S VIOLATION OF RULE 10B-5.  THE MANNER IN WHICH
THE DEFENDANT'S VIOLATION CAUSED THE PLAINTIFF TO FAIL TO ACT COULD BE
AS A RESULT OF THE READING OF A PROSPECTUS, AS RESPONDENT CLAIMS HERE,
BUT IT COULD JUST AS EASILY COME AS A RESULT OF A CLAIMED READING OF
INFORMATION CONTAINED IN THE FINANCIAL PAGES OF A LOCAL NEWSPAPER. 
PLAINTIFF'S PROOF WOULD NOT BE THAT HE PURCHASED OR SOLD STOCK, A FACT
WHICH WOULD BE CAPABLE OF DOCUMENTARY VERIFICATION IN MOST SITUATIONS,
BUT INSTEAD THAT HE DECIDED NOT TO PURCHASE OR SELL STOCK.  PLAINTIFF'S
ENTIRE TESTIMONY COULD BE DEPENDENT UPON UNCORROBORATED ORAL EVIDENCE
OF MANY OF THE CRUCIAL ELEMENTS OF HIS CLAIM, AND STILL BE SUFFICIENT
TO GO TO THE JURY.  THE JURY WOULD NOT EVEN HAVE THE BENEFIT OF
WEIGHING THE PLAINTIFF'S VERSION AGAINST THE DEFENDANT'S VERSION, SINCE
THE ELEMENTS TO WHICH THE PLAINTIFF WOULD TESTIFY WOULD BE IN MANY
CASES TOTALLY UNKNOWN AND UNKNOWABLE TO THE DEFENDANT.  THE VERY REAL
RISK IN PERMITTING THOSE IN RESPONDENT'S POSITON TO SUE UNDER RULE 10B
5 IS THAT THE DOOR WILL BE OPEN TO RECOVERY OF SUBSTANTIAL DAMAGES ON
THE PART OF ONE WHO OFFERS ONLY HIS OWN TESTIMONY TO PROVE THAT HE EVER
CONSULTED A PROSPECTUS OF THE ISSUER, THAT HE PAID ANY ATTENTION TO IT,
OR THAT THE REPRESENTATIONS CONTAINED IN IT DAMAGED HIM.  /10/ THE
VIRTUE OF THE BIRNBAUM RULE, SIMPLY STATED, IN THIS SITUATION, IS THAT
IT LIMITS THE CLASS OF PLAINTIFFS TO THOSE WHO HAVE AT LEAST DEALT IN
THE SECURITY TO WHICH THE PROSPECTUS, REPRESENTATION, OR OMISSION
RELATES.  AND THEIR DEALING IN THE SECURITY, WHETHER BY WAY OF PURCHASE
OR SALE, WILL GENERALLY BE AN OBJECTIVELY DEMONSTRABLE FACT IN AN AREA
OF THE LAW OTHERWISE VERY MUCH DEPENDENT UPON ORAL TESTIMONY.  IN THE
ABSENCE OF THE BIRNBAUM DOCTRINE, BYSTANDERS TO THE SECURITIES
MARKETING PROCESS COULD AWAIT DEVELOPMENTS ON THE SIDELINES WITHOUT
RISK, CLAIMING THAT INACCURACIES IN DISCLOSURE CAUSED NONSELLING IN A
FALLING MARKET AND THAT UNDULY PESSIMISTIC PREDICTIONS BY THE ISSUER
FOLLOWED BY A RISING MARKET CAUSED THEM TO ALLOW RETROSPECTIVELY GOLDEN
OPPORTUNITIES TO PASS. 

WHILE MUCH OF THE DEVELOPMENT OF THE LAW OF DECEIT HAS BEEN THE
ELIMINATION OF ARTIFICIAL BARRIERS TO RECOVERY ON JUST CLAIMS, WE ARE
NOT THE FIRST COURT TO EXPRESS CONCERN THAT THE INEXORABLE BROADENING
OF THE CLASS OF PLAINTIFF WHO MAY SUE IN THIS AREA OF THE LAW WILL
ULTIMATELY RESULT IN MORE HARM THAN GOOD.  IN ULTRAMARES CORP. V.
TOUCHE, 255 N.Y. 170, 174 N.E. 441 (1931), CHIEF JUDGE CARDOZO OBSERVED
WITH RESPECT TO "A LIABILITY IN AN INDETERMINATE AMOUNT FOR AN
INDETERMINATE TIME TO AN INDETERMINATE CLASS": 

     " THE HAZARDS OF A BUSINESS CONDUCTED ON THESE TERMS ARE SO

  EXTREME AS TO ENKINDLE DOUBT WHETHER A FLAW MAY NOT EXIST IN THE

 IMPLICATION OF A DUTY THAT EXPOSES TO THESE CONSEQUENCES."  ID.,

  AT 179 - 180, 174 N.E., AT 444. 

IN HERPICH V. WALLACE, 430 F.2D 792, 804 - 805 (CA5 1970), A CASE
ADOPTING THE BIRNBAUM LIMITATION ON THE CLASS OF PLAINTIFFS WHO MIGHT
BRING AN ACTION FOR DAMAGES BASED ON A VIOLATION OF RULE 10B-5, JUDGE
AINSWORTH EXPRESSED CONCERN SIMILAR TO THAT EXPRESSED BY BY CHIEF JUDGE
CARDOZO.  JUDGE STEVENS, WRITING IN EASON V. GENERAL MOTORS ACCEPTANCE
CORP., SUPRA, STATED THAT COURT'S VIEW THAT THESE CONCERNS WERE UNDULY
EMPHASIZED, AND WENT ON TO SAY THAT "WE MAY NOT FOR THAT REASON REJECT
WHAT WE BELIEVE TO BE A CORRECT INTERPRETATION OF THE STATUTE OR THE
RULE."  ID., AT 660.  HE RELIED IN PART ON THE VIEW THAT RULE 10B-5
SHOULD BE INTERPRETED, IN KEEPING WITH THIS COURT'S REPEATED
ADMONITION, "'NOT TECHNICALLY AND RESTRICTIVELY, BUT FLEXIBLY TO
EFFECTUATE ITS REMEDIAL PURPOSES.'"  AFFILIATED UTE CITIZENS V. UNITED
STATES, 406 U.S., AT 151. 

WE QUITE AGREE THAT IF CONGRESS HAD LEGISLATED THE ELEMENTS OF A
PRIVATE CAUSE OF ACTION FOR DAMAGES, THE DUTY OF THE JUDICIAL BRANCH
WOULD BE TO ADMINISTER THE LAW WHICH CONGRESS EANCTED; THE JUDICIARY
MAY NOT CIRCUMSCRIBE A RIGHT WHICH CONGRESS HAD CONFERRED BECAUSE OF
ANY DISAGREEMENT IT MIGHT HAVE WITH CONGRESS ABOUT THE WISDOM OF
CREATING SO EXPANSIVE A LIABILITY.  BUT AS WE HAVE POINTED OUT, WE ARE
NOT DEALING HERE WITH ANY PRIVATE RIGHT CREATED BY THE EXPRESS LANGUAGE
OF SEC. 10 (B) OR OF RULE 10B-5.  NO LANGUAGE IN EITHER OF THOSE
PROVISIONS SPEAKS AT ALL TO THE CONTOURS OF A PRIVATE CAUSE OF ACTION
FOR THEIR VIOLATION.  HOWEVER FLEXIBLY WE MAY CONSTRUE THE LANGUAGE OF
BOTH PROVISIONS, NOTHING IS SUCH CONSTRUCTION MILITATES AGAINST THE
BIRNBAUM RULE.  WE ARE DEALING WITH A PRIVATE CAUSE OF ACTION WHICH HAS
BEEN JUDICIALLY FOUND TO EXIST, AND WHICH WILL HAVE TO BE JUDICIALLY
DELIMITED ONE WAY OR ANOTHER UNLESS AND UNTIL CONGRESS ADDRESSES THE
QUESTION.  GIVEN THE PECULIAR BLEND OF LEGISLATIVE, ADMINISTRATIVE, AND
JUDICIAL HISTORY WHICH NOW SURROUNDS RULE 10B-5, WE BELIEVE THAT
PRACTICAL FACTORS TO WHICH WE HAVE ADVERTED, AND THE WHICH OTHER COURTS
HAVE REFERRED, ARE ENTITLED TO A GOOD DEAL OF WEIGHT. 

THUS WE CONCLUDE THAT WHAT MAY BE CALLED CONSIDERATIONS OF POLICY,
WHICH WE ARE FREE TO WEIGH IN DECIDING THIS CASE, ARE BY NO MEANS
ENTIRELY ON ONE SIDE OF THE SCALE.  TAKEN TOGETHER WITH THE
PRECEDENTIAL SUPPORT FOR THE BIRNBAUM RULE OVER A PERIOD OF MORE THAN
20 YEARS, AND THE CONSISTENCY OF THAT RULE WITH WHAT WE CAN GLEAN FROM
THE INTENT OF CONGRESS, THEY LEAD US TO CONCLUDE THAT IT IS A SOUND
RULE AND SHOULD BE FOLLOWED. 

IV 

THE MAJORITY OF THE COURT OF APPEALS IN THIS CASE EXPRESSED NO
DISAGREEMENT WITH THE GENERAL PROPOSITION THAT ONE ASSERTING A CLAIM
FOR DAMAGES BASED ON THE VIOLATION OF RULE 10B-5 MUST BE EITHER A
PURCHASER OR SELLER OF SECURITIES.  HOWEVER, IT NOTED THAT PRIOR CASES
HAVE HELD THAT PERSONS OWNING CONTRACTUAL RIGHTS TO BUY OR SELL
SECURITIES ARE NOT EXCLUDED BY THE BIRNBAUM RULE.  RELYING ON THESE
CASES, IT CONCLUDED THAT RESPONENT'S STATUS AS AN OFFEREE PURSUANT TO
THE TERMS OF THE CONSENT DECREE SERVED THE SAME FUNCTION, FOR PURPOSES
OF DELIMITING THE CLASS OF PLAINTIFFS, AS IS NORMALLY PERFORMED BY THE
REQUIREMENT OF A CONTRACTUAL RELATIONSHIP.  492 F.2D, AT 142. 

THE COURT OF APPEALS RECOGNIZED, AND RESPONDENT CONCEDES HERE, /11/
THAT A WELL-SETTLED LINE OF AUTHORITY FROM THIS COURT ESTABLISHES THAT
A CONSENT DECREE IS NOT ENFORCEABLE DIRECTLY OR IN COLLATERAL
PROCEEDINGS BY THOSE WHO ARE NOT PARTIES TO IT EVEN THOUGH THEY WERE
INTENDED TO BE BENEFITED BY IT.  UNITED STATES V. ARMOUR & CO., 402
U.S. 673 (1971); BUCKEY CO. V. HOCKING VALLEY CO., 269 U.S. 42 (1925). 
/12/ 

A CONTRACT TO PURCHASE OR SELL SECURITIES IS EXPRESSLY DEFINED BY
SEC. 3 (A) OF THE 1934 ACT, 15 U.S.C. SEC. 78C (A), /13/ AS A PURCHASE
OR SALE OF SECURITIES FOR THE PURPOSES OF THAT ACT.  UNLIKE RESPONDENT,
WHICH HAD NO CONTRACTUAL RIGHT OR DUTY TO PURCHASE BLUE CHIP'S
SECURITIES, THE HOLDERS OF PUTS, CALLS, OPTIONS, AND OTHER CONTRACTUAL
RIGHTS OR DUTIES TO PURCHASE OR SELL SECURITIES HAVE BEEN RECOGNIZED AS
"PURCHASERS" OR "SELLERS" OF SECURITIES FOR PURPOSES OF RULE 10B-5, NOT
BECAUSE OF A JUDICIAL CONCLUSION THAT THEY WERE SIMILARLY SITUATED TO
"PURCHASERS" OR "SELLERS," BUT BECAUSE THE DEFINITIONAL PROVISIONS OF
THE 1934 ACT THEMSELVES GRANT THEM SUCH A STATUS. 

EVEN IF WE WERE TO ACCEPT THE NOTION THAT THE BIRNBAUM RULE COULD BE
CIRCUMVENTED ON A CASE-BY-CASE BASIS THROUGH PARTICULARIZED JUDICIAL
INQUIRY INTO THE FACTS SURROUNDING A COMPLAINT, THIS RESPONDENT AND THE
MEMBERS OF ITS ALLEGED CLASS WOULD BE UNLIKELY CANDIDATES FOR SUCH A
JUDICIALLY CREATED EXCEPTION.  WHILE THE BIRNBAUM RULE HAS BEEN
FLEXIBLY INTERPRETED BY LOWER FEDERAL COURTS, /14/ WE HAVE BEEN UNABLE
TO LOCATE A SINGLE DECIDED CASE FROM ANY COURT IN THE 20-ODD YEARS OF
LITIGATION SINCE THE BIRNBAUM DECISION WHICH WOULD SUPPORT THE RIGHT OF
PERSONS WHO WERE IN THE POSITION OF RESPONDENT HERE TO BRING A PRIVATE
SUIT UNDER RULE 10B-5.  RESPONDENT WAS NOT ONLY NOT A BUYER OR SELLER
OF ANY SECURITY BUT IT WAS NOT EVEN A SHAREHOLDER OF THE CORPORATE
PETITIONERS.     AS INDICATED, THE 1934 ACT, UNDER WHICH RESPONDENT
SEEKS TO ASSERT A CAUSE OF ACTION, IS GENERAL IN SCOPE BUT CHIEFLY
CONCERNED WITH THE REGULATION OF POST-DISTRIBUTION TRADING ON THE
NATION'S STOCK EXCHANGES AND SECURITIES TRADING MARKETS.  THE 1933 ACT
IS A FAR NARROWER STATUTE CHIEFLY CONCERNED WITH DISCLOSURE AND FRAUD
IN CONNECTION WITH OFFERINGS OF SECURITIES--PRIMARILY, AS HERE, INITIAL
DISTRIBUTIONS OF NEWLY ISSUED STOCK FROM CORPORATE ISSUERS.  1 L. LOSS,
SECURITIES REGULATION 130 - 131 (2D ED. 1961).  RESPONDENT, WHO DERIVES
NO ENTITLEMENT FROM THE ANTITRUST CONSENT DECREE AND DOES NOT OTHERWISE
POSSESS ANY CONTRACTUAL RIGHTS RELATING TO THE OFFERED STOCK, STANDS IN
THE SAME POSITION AS ANY OTHER DISAPPOINTED OFFEREE OF A STOCK OFFERING
REGISTERED UNDER THE 1933 ACT WHO CLAIMS THAT AN OVERLY PESSIMISTIC
PROSPECTUS, PREPARED AND DISTRIBUTED AS REQUIRED BY SEC. 5 AND 10 OF
THE 1933 ACT, HAS CAUSED IT TO ALLOW ITS OPPORTUNITY TO PURCHASE TO
PASS. 

THERE IS STRONG EVIDENCE THAT APPLICATION OF THE BIRNBAUM RULE TO
PRECLUDE SUIT BY THE DISAPPOINTED OFFEREE OF A REGISTERED 1933 ACT
OFFERING UNDER RULE 10B-5 FURTHERS THE INTENTION OF CONGRESS AS
EXPRESSED IN THE 1933 ACT.  /15/ CONGRESS LEFT LITTLE DOUBT THAT ITS
PURPOSE IN IMPOSING THE PROSPECTUS AND REGISTRATION REQUIREMENTS OF THE
1933 ACT WAS TO PREVENT THE "(HIGH PRESSURE SALESMANSHIP RATHER THAN
CAREFUL COUNSEL," CAUSING INFLATED NEW ISSUES, THROUGH DIRECT
LIMITATION BY THE SEC OF "THE SELLING ARGUMENTS HITHERTO EMPLOYED." 
H.R. REP. NO. 85, 73D CONG., 1ST SESS., 2, 8 (1933). 

" ANY OBJECTION THAT THE COMPULSORY INCORPORATION IN SELLING
LITERATURE AND SALES ARGUMENT OF SUBSTANTIALLY ALL INFORMATION
CONCERNING THE ISSUE, WILL FRIGHTEN THE BUYER WITH THE INTRICACY OF THE
TRANSACTION, STATES ONE OF THE BEST ARGUMENTS FOR THE PROVISION."  ID.,
AT 8.  THE SEC, IN ACCORD WITH THE CONGRESSIONAL PURPOSES, SPECIFICALLY
REQUIRES PROMINENT EMPHASIS BE GIVEN IN FILED REGISTRATION STATEMENTS
AND PROSPECTUSES TO MATERIAL ADVERSE CONTINGENCIES.  SEE, E.G., SEC
SECURITIES ACT RELEASE NO. 4936, GUIDES FOR THE PREPARATION AND FILING
OF REGISTRATION STATEMENTS 6, 6 (1968); IN RE UNIVERSAL CAMERA CORP.,
29 S.E.C. 648, 654 - 656 (1945); WHEAT & BLACKSTONE, GUIDEPOSTS FOR A
FIRST PUBLIC OFFERING, 15 BUS.  LAW.  539, 560 - 562 (1960). 

FOR MISREPRESENTATIONS AND OMISSIONS IN REGISTRATION STATEMENTS AND
PROSPECTUSES FILED UNDER THE ACT, AS HERE CHARGED, BUT RESTRICT
RECOVERY TO THE OFFERING PRICE OF SHARES ACTUALLY PURCHASED: 

" TO IMPOSE A GREATER RESPONSIBILITY, APART FROM CONSTITUTIONAL
DOUBTS, WOULD UNNECESSARILY RESTRAIN THE CONSCIENTIOUS ADMINISTRATION
OF HONEST BUSINESS WITH NO COMPENSATING ADVANTAGE TO THE PUBLIC."  H.R.
REP. NO. 85, SUPRA, AT 9.  AND IN TITLE II OF THE 1934 ACT, 48 STAT.
905 - 908, THE SAME ACT ADOPTING SEC. 10 (B), CONGRESS AMENDED SEC. 11
OF THE 1933 ACT TO LIMIT STILL FURTHER THE EXPRESS CIVIL REMEDY IT
CONFERRED.  SEE GENERALLY JAMES, AMENDMENTS TO THE SECURITIES ACT OF
1933, 32 MICH. L. REV. 1130, 1134 (1934).  THE ADDITIONAL CONGRESSIONAL
RESTRICTIONS, CONTAINED IN TITLE II OF THE 1934 ACT, ON THE ALREADY
LIMITED EXPRESS CIVIL REMEDIES PROVIDED BY THE 1933 ACT FOR
MISREPRESENTATIONS OR OMISSIONS IN A REGISTRATION STATEMENT OR
PROSPECTUS REFLECTED CONGRESSIONAL CONCERN OVER THE IMPACT OF EVEN
THESE LIMITED REMEDIES ON THE NEW ISSUES MARKET.  78 CONG. REC. 8668 -
8669 (1934).  THERE IS THUS AMPLE EVIDENCE THAT CONGRESS DID NOT INTEND
TO EXTEND A PRIVATE CAUSE OF ACTION FOR MONEY DAMAGES TO THE
NONPURCHASING OFFEREE OF A STOCK OFFERING REGISTERED UNDER THE 1933 ACT
FOR LOSS OF THE OPPORTUNITY TO PURCHASE DUE TO AN OVERLY PESSIMISTIC
PROSPECTUS. 

BEYOND THE DIFFICULTIES EVIDENT IN AN EXTENSION OF STANDING TO THIS
RESPONDENT, WE DO NOT BELIEVE THAT THE BIRNBAUM RULE IS MERELY A
SHORTHAND JUDGMENT ON THE NATURE OF A PARTICULAR PLAINTIFF'S PROOF.  AS
A PURELY PRACTICAL MATTER, IT IS DOUBTLESS TRUE THAT RESPONDENT AND THE
MEMBERS OF ITS CLASS, AS OFFEREES AND RECIPIENTS OF THE PROSPECTUS OF
NEW BLUE CHIP, ARE A SMALLER CLASS OF POTENTIAL PLAINTIFFS THAN WOULD
BE ALL THOSE WHO MIGHT CONCEIVABLY ASSERT THAT THEY OBTAINED
INFORMATION VIOLATIVE OF RULE 10B-5 AND ATTRIBUTABLE TO THE ISSUER IN
THE FINANCIAL PAGES OF THEIR LOCAL NEWSPAPER.  AND SINCE RESPONDENT
LIKEWISE HAD A PRIOR CONNECTION WITH SOME OF PETITIONERS AS A RESULT OF
USING THE TRADING STAMPS MARKETED BY OLD BLUE CHIP, AND WAS INTENDED TO
BENEFIT FROM THE PROVISIONS OF THE CONSENT DECREE, THERE IS DOUBTLESS
MORE LIKELIHOOD THAT ITS MANAGERS READ AND WERE DAMAGED BY THE
ALLEGEDLY MISLEADING STATEMENTS IN THE PROSPECTUS THAN THERE WOULD BE
IN A CASE FILED BY A COMPLETE STRANGER TO THE CORPORATION. 

BUT RESPONDENT AND THE MEMBERS OF ITS CLASS ARE NEITHER "PURCHASERS"
NOR "SELLERS," AS THOSE TERMS ARE DEFINED IN THE 1934 ACT, AND
THEREFORE TO THE EXTENT THAT THEIR CLAIM OF STANDING TO SUE WERE
RECOGNIZED, IT WOULD MEAN THAT THE LESSER PRACTICAL DIFFICULTIES OF
CORROBORATING AT LEAST SOME ELEMENTS OF THEIR PROOF WOULD BE REGARDED
AS SUFFICIENT TO AVOID THE BIRNBAUM RULE.  WHILE WE HAVE NOTED THAT
THESE PRACTICAL DIFFICULTIES, PARTICULARLY IN THE CASE OF A COMPLETE
STRANGER TO THE CORPORATION, SUPPORT THE RETENTION OF THAT RULE, THEY
ARE BY NO MEANS THE ONLY FACTOR WHICH DOES SO.  THE GENERAL ADOPTION OF
THE RULE BY OTHER FEDERAL COURTS IN THE 20-ODD YEARS SINCE IT WAS
ANNOUNCED, AND THE CONSISTENCY OF THE RULE WITH THE STATUTES INVOLVED
AND THEIR LEGISLATIVE HISTORY, ARE LIKEWISE BASES FOR RETAINING THE
RULE.  WERE WE TO AGREE WITH THE COURT OF APPEALS IN THIS CASE, WE
WOULD LEAVE THE BIRNBAUM RULE OPEN TO ENDLESS CASE-BY-CASE EROSION
DEPENDING ON WHETHER A PARTICULAR GROUP OF PLAINTIFFS WAS THOUGHT BY
THE COURT IN WHICH THE ISSUE WAS BEING LITIGATED TO BE SUFFICIENTLY
MORE DISCRETE THAN THE WORLD OF POTENTIAL PURCHASERS AT LARGE TO
JUSTIFY AN EXCEPTION.  WE DO NOT BELIEVE THAT SUCH A SHIFTING AND
HIGHLY FACT-ORIENTED DISPOSITION OF THE ISSUE OF WHO MAY BRING A
DAMAGES CLAIM FOR VIOLATION OF RULE 10B-5 IS A SATISFACTORY BASIS FOR A
RULE OF LIABILITY IMPOSED ON THE CONDUCT OF BUSINESS TRANSACTIONS.  NOR
IS IT AS CONSISTENT AS A STRAIGHTFORWARD APPLICATION OF THE BIRNBAUM
RULE WITH THE OTHER FACTORS WHICH SUPPORT THE RETENTION OF THAT RULE. 
WE THEREFORE HOLD THAT RESPONDENT WAS NOT ENTITLED TO SUE FOR VIOLATION
OF RULE 10B-5, AND THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

/1/ NEITHER RESPONDENT NOR ANY OF THE MEMBERS OF ITS ALLEGED CLASS
WERE PARTIES TO THE ANTITRUST ACTION.  THE ANTITRUST DECREE ITSELF
PROVIDED NO PLAN FOR THE REORGANIZATION OF OLD BLUE CHIP BUT INSTEAD
MERELY DIRECTED THE PARTIES TO THE CONSENT DECREE TO PRESENT TO THE
COURT SUCH A PLAN.  APP. 27, 31. 

/2/ THE DISTRICT COURT OPINION IS REPORTED AT 339 F.SUPP.  35
(1971). 

/3/ THE COURT OF APPEALS OPINION IS REPORTED AT 492 F.2D 136
(1973). 

/4/ SEE, E.G., SEC. 11, 12, 15 OF THE 1933 ACT, 15 U.S.C. SEC. 77K,
77L, 77O; SEC. 9, 16, 18, 20 OF THE 1934 ACT, 15 U.S.C. SEC. 78I, 78R,
78T, 

/5/ MR. JUSTICE BLACKMUN, DISSENTING, POST, AT 764 - 765, FINDS
SUPPORT IN THE LITERAL LANGUAGE OF SEC. 10 (B) SINCE HE CONCLUDES THAT
IN HIS VIEW "THE WORD 'SALE' ORDINARILY AND NATURALLY MAY BE UNDERSTOOD
TO MEAN, NOT ONLY A SINGLE, INDIVIDUALIZED ACT TRANSFERRING PROPERTY
FROM ONE PARTY TO ANOTHER, BUT ALSO THE GENERALIZED EVENT OF PUBLIC
DISPOSAL OF PROPERTY THROUGH ADVERTISEMENT, AUCTION, OR SOME OTHER
MARKET MECHANISM."  BUT THIS IGNORES THE FACT THAT THIS CAREFULLY DRAWN
STATUTE ITSELF DEFINES THE TERM "SALE" FOR PURPOSES OF THE ACT AND AS
WE HAVE NOTED, INFRA, AT 750 - 751, N. 13, CONGRESS EXPRESSLY DELETED
FROM THE ACT'S DEFINITION EVENTS SUCH AS OFFERS AND ADVERTISEMENTS
WHICH MAY ULTIMATELY LEAD TO A COMPLETED SALE.  MOREOVER, THE EXTENSION
OF THE WORD "SALE" TO INCLUDE OFFERS IS QUITE INCOMPATIBLE WITH
CONGRESS' SEPARATE DEFINITION AND USE OF THESE TERMS IN THE 1933 AND
1934 ACTS.  CF. SEC. 2 (3) OF THE 1933 ACT, 15 U.S.C. SEC. 77B (3). 
BEYOND THIS, THE WORDING OF SEC. 10 (B), MAKING FRAUD IN CONNECTION
WITH THE PURCHASE OR SALE OF SECURITY A VIOLATION OF THE ACT, IS SURELY
BADLY STRAINED WHEN CONSTRUED TO PROVIDE A CAUSE OF ACTION, NOT TO
PURCHASERS AND SELLERS OF SECURITIES, BUT TO THE WORLD AT LARGE. 

/6/ SECTION 17 (A) OF THE 1933 ACT PROVIDES IN WORDING VIRTUALLY
IDENTICAL TO THAT OF RULE 10B-5 WITH THE EXCEPTION OF THE ITALICIZED
PORTION THAT: 

" IT SHALL BE UNLAWFUL FOR ANY PERSON IN THE OFFER OR SALE OF ANY
SECURITIES BY THE USE OF ANY MEANS OR INSTRUMENTS OF TRANSPORTATION OR
COMMUNICATION IN INTERSTATE COMMERCE OR BY THE USE OF THE MAILS,
DIRECTLY OR INDIRECTLY--, 

"(1) TO EMPLOY ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD, OR 

"(2) TO OBTAIN MONEY OR PROPERTY BY MEANS OF ANY UNTRUE STATEMENT OF
A MATERIAL FACT OR ANY OMISSION TO STATE A MATERIAL FACT NECESSARY IN
ORDER TO MAKE THE STATEMENTS MADE, IN THE LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY WERE MADE, NOT MISLEADING, OR 

"(3) TO ENGAGE IN ANY TRANSACTION, PRACTICE, OR COURSE OF BUSINESS
WHICH OPERATES OR WOULD OPERATE AS A FRAUD OR DECEIT UPON THE
PURCHASER."  (EMPHASIS ADDED.)  WE EXPRESS, OF COURSE, NO OPINION ON
WHETHER SEC. 17 (A) IN LIGHT OF THE EXPRESS CIVIL REMEDIES OF THE 1933
ACT GIVES RISE TO AN IMPLIED CAUSE OF ACTION.  COMPARE GREATER IOWA
CORP. V. MC LENDON, 378 F.2D 783, 788 - 791 (CA8 1967), WITH FISCHMAN
V. RAYTHEON MFG. CO., 188 F.2D 783, 787 (CA2 1951).  SEE, E.G., SEC V.
TEXAS GULF SULPHUR CO., 401 F.2D 833, 867 (CA2 1968) (FRIENDLY, J.,
CONCURRING), CERT. DENIED SUB NOM. COATES V. SEC, 394 U.S. 976 (1969);
3 L. LOSS, SECURITIES REGULATION 1785 (2D ED. 1961). 

/7/ SECTION 29 (B) OF THE 1934 ACT PROVIDES IN PART: 

" EVERY CONTRACT MADE IN VIOLATION OF ANY PROVISION OF THIS CHAPTER
OR OF ANY RULE OR REGULATION THEREUNDER, AND EVERY CONTRACT (INCLUDING
ANY CONTRACT FOR LISTING A SECURITY ON AN EXCHANGE) HERETOFORE OR
HEREAFTER MADE, THE PERFORMANCE OF WHICH INVOLVES THE VIOLATION OF, OR
THE CONTINUANCE OF ANY RELATIONSHIP OR PRACTICE IN VIOLATION OF, ANY
PROVISION OF THIS CHAPTER OR ANY RULE OR REGULATION THEREUNDER, SHALL
BE VOID (1) AS REGARDS THE RIGHTS OF ANY PERSON WHO, IN VIOLATION OF
ANY SUCH PROVISION, RULE, OR REGULATION, SHALL HAVE MADE OR ENGAGED IN
THE PERFORMANCE OF ANY SUCH CONTRACT, AND (2) AS REGARDS THE RIGHTS OF
ANY PERSON WHO, NOT BEING A PARTY TO SUCH CONTRACT, SHALL HAVE ACQUIRED
ANY RIGHT THEREUNDER WITH ACTUAL KNOWLEDGE OF THE FACTS BY REASON OF
WHICH THE MAKING OR PERFORMANCE OF SUCH CONTRACT WAS IN VIOLATION OF
ANY SUCH PROVISION, RULE, OR REGULATION.  . . ." 

CF. DECKERT V. INDEPENDENCE SHARES CORP., 311 U.S. 282 (1940). 

/8/ MR. JUSTICE BLACKMUN, DISSENTING, POST, AT 762, FINDS THE
BIRNBAUM RULE INCOMPATIBLE WITH THE PURPOSE AND HISTORY OF SEC. 10 (B)
AND RULE 10B-5.  BUT IT IS WORTHY OF MORE THAN PASSING NOTE THAT THE
HISTORY OF RULE 10B-5 ITSELF, RECOUNTED AT SOME LENGTH IN THE DISSENT,
POST, AT 766 - 767, STRONGLY SUPPORTS THE PURCHASER-SELLER LIMITATION. 
AS THE DISSENT NOTES, RULE 10B-5 WAS ADOPTED IN ORDER TO CLOSE "A
LOOPHOLE IN THE PROTECTIONS AGAINST FRAUD . . . BY PROHIBITING
INDIVIDUALS OR COMPANIES FROM BUYING SECURITIES IF THEY ENGAGE IN FRAUD
IN THEIR PURCHASE."  SEE SEC RELEASE NO. 3230 (MAY 21, 1942); REMARKS
OF MILTON FREEMAN, CONFERENCE ON CODIFICATION OF THE FEDERAL SECURITIES
LAWS, 22 BUS.  LAW.  793, 922 (1967).  THE MODEST AIMS AND ORIGINS OF
THE RULE AS RECOUNTED BY THE DISSENT STAND IN STARK CONTRAST WITH ITS
FAR-RANGING CONCLUSION THAT A REMEDY EXISTS UNDER RULE 10B-5 WHENEVER
THERE IS "A LOGICAL NEXUS BETWEEN THE ALLEGED FRAUD AND THE SALE OR
PURCHASE OF A SECURITY."  POST, AT 770.  ON THESE FACTS, AS WE HAVE
INDICATED, INFRA, AT 752 - 754, EXTENSION OF A RULE 10B-5 CAUSE OF
ACTION, FAR FROM CLOSING AN UNFORESEEN LOOPHOLE, WOULD EXTEND A PRIVATE
RIGHT OF ACTION FOR MISREPRESENTATIONS IN A 1933 ACT PROSPECTUS TO
THOSE WHOM CONGRESS EXCLUDED FROM THE EXPRESS CIVIL REMEDIES PROVIDED
IN THE 1933 ACT TO COVER SUCH A VIOLATION. 

/9/ OBVIOUSLY THIS DISADVANTAGE IS ATTENUATED TO THE EXTENT THAT
REMEDIES ARE AVAILABLE TO NONPURCHASERS AND NONSELLERS UNDER STATE
LAW.  CF. SEC. 28 OF THE SECURITIES EXCHANGE ACT OF 1934, 15 U.S.C.
SEC. 78BB.  SEE IROQUOIS INDUSTRIES, INC. V. SYRACUSE CHINA CORP., 417
F.2D 963, 969 (CA2 1969), CERT. DENIED, 399 U.S. 909 (1970).  THUS, FOR
EXAMPLE, IN BIRNBAUM ITSELF, WHILE THE PLAINTIFFS FOUND THEMSELVES
WITHOUT FEDERAL REMEDIES, THE CONDUCT ALLEGED AS THE GRAVAMEN OF THE
FEDERAL COMPLAINT LATER PROVIDED THE BASIS FOR RECOVERY IN A CAUSE OF
ACTION BASED ON STATE LAW.  SEE 3 L. LOSS, SECURITIES REGULATION 1469
(2D ED. 1961).  AND IN THE IMMEDIATE CASE, RESPONDENT HAS FILED A STATE
COURT CLASS ACTION HELD IN ABEYANCE PENDING THE OUTCOME OF THIS SUIT. 
MANOR DRUG STORES V. BLUE CHIP STAMPS, NO C-5652 (SUPERIOR COURT,
COUNTY OF LOS ANGELES, CAL.). 

/10/ THE SEC, RECOGNIZING THE NECESSITY FOR LIMITATIONS ON
NONPURCHASER, NONSELLER PLAINTIFFS IN THE ABSENCE OF THE BIRNBAUM RULE,
SUGGESTS TWO SUCH LIMITATIONS TO MITIGATE THE PRACTICAL ADVERSE EFFECTS
FLOWING FROM ABOLITION OF THE RULE.  FIRST, IT SUGGESTS REQUIRING SOME
CORROBORATIVE EVIDENCE IN ADDITION TO ORAL TESTIMONY TENDING TO SHOW
THAT THE INVESTMENT DECISION OF A PLAINTIFF WAS AFFECTED BY AN OMISSION
OR MISREPRESENTATION.  BRIEF FOR THE SECURITIES AND EXCHANGE COMMISSION
AS AMICUS CURIAE 25 - 26.  APPARENTLY OWNERSHIP OF STOCK OR RECEIPT OF
A PROSPECTUS OR PRESS RELEASE WOULD BE SUFFICIENT CORROBORATIVE
EVIDENCE IN THE VIEW OF THE SEC TO REACH THE JURY.  WE DO NOT BELIEVE
THAT SUCH A REQUIREMENT WOULD ADEQUATELY RESPOND TO THE CONCERNS IN
PART UNDERLYING THE BIRNBAUM RULE.  OWNERSHIP OF STOCK OR RECEIPT OF A
PROSPECTUS SAYS LITTLE ABOUT WHETHER A PLAINTIFF'S INVESTMENT DECISION
WAS AFFECTED BY A VIOLATION OF RULE 10B-5 OR WHETHER A DECISION WAS
EVEN MADE.  SECOND, THE SEC WOULD LIMIT THE VICARIOUS LIABILITY OF
CORPORATE ISSUERS TO NONPURCHASERS AND NONSELLERS TO SITUATIONS WHERE
THE CORPORATE ISSUER HAS BEEN UNJUSTLY ENRICHED BY A VIOLATION.  WE
HAVE NO OCCASION TO PASS UPON THE COMPATIBILITY OF THIS LIMITATION WITH
SEC. 20 (A) OF THE 1934 ACT, 15 U.S.C. SEC. 78T (A).  WE DO NOT BELIEVE
THAT THIS PROPOSED LIMITATION IS RELEVANT TO THE CONCERNS UNDERLYING IN
PART THE BIRNBAUM RULE AS WE HAVE EXPRESSED THEM.  WE ARE NOT ALONE IN
FEELING THAT THE LIMITATIONS PROPOSED BY THE SEC ARE NOT ADEQUATE TO
DEAL WITH THE ADVERSE EFFECTS WHICH WOULD FLOW FROM ABOLITION OF THE
BIRNBAUM RULE.  SEE E.G., VINE V. BENEFICIAL FINANCE CO., 374 F.2D 627,
636 (CA2), CERT. DENIED, 389 U.S. 970 (1967); IROQUOIS INDUSTRIES, INC.
V. SYRACUSE CHINA CORP., 417 F.2D, AT 967; REKANT V. DESSER, 425 F.2D
872, 879 (CA5 1970); GAF CORP. V. MILSTEIN, 453 F.2D 709, 721 (CA2
1972), CERT. DENIED, 406 U.S. 910 (1972); DRACHMAN V. HARVEY, 453 F.2D
722, 736, 738 (CA2 1972) (EN BANC); MOUNT CLIMENS INDUSTRIES, INC. V.
BELL, 464 F.2D 339, 341 (CA9 1972). 

/11/ SEE BRIEF FOR RESPONDENT 60. 

/12/ SEE N. 1, SUPRA; 492 F.2D, AT 144 N. 3 (HUFSTEDLER, J.,
DISSENTING). 

/13/ SECTION 3 (A) (13) OF THE 1934 ACT, 15 U.S.C. SEC. 78C (A)
(13), PROVIDES: 

" THE TERMS 'BUY' AND 'PURCHASE' EACH INCLUDE ANY CONTRACT TO BUY,
PURCHASE, OR OTHERWISE ACQUIRE." 

PROVIDES: 

" THE TERMS 'SALE' AND 'SELL' EACH INCLUDE ANY CONTRACT TO SELL OR
OTHERWISE DISPOSE OF." 

THESE PROVISIONS AS ENACTED STARKLY CONTRAST WITH THE WORDING OF THE
BILL WHICH BECAME THE 1934 ACT WHEN IT EMERGED FROM COMMITTEE AND WAS
PRESENTED ON THE SENATE FLOOR BY SENATOR FLETCHER, THE CHAIRMAN OF THE
SENATE COMMITTEE ON BANKING AND FINANCE.  SEE S. 2693, 73D CONG., 2D
SESS. (1934).  SECTION 3 (11) OF THE BILL AS PRESENTED TO THE SENATE
PROVIDED: 

" THE TERMS 'BUY' AND 'PURCHASE' EACH INCLUDE ANY CONTRACT TO BUY,
PURCHASE, OR OTHERWISE ACQUIRE, CONTRACT OF PURCHASE, ATTEMPT OR OFFER
TO ACQUIRE OR SOLICITATION OF AN OFFER TO SELL A SECURITY OR ANY
INTEREST IN A SECURITY."  (EMPHASIS ADDED.)  AND SEC. 3(12) OF THE BILL
PROVIDED: 

" THE TERMS 'SALE' AND 'SELL' EACH INCLUDE ANY CONTRACT OF SALE OR
DISPOSITION OF, CONTRACT TO SELL OR DISPOSE OF, ATTEMPT OR OFFER TO
DISPOSE OF, OR SOLICITATION OF AN OFFER TO BUY A SECURITY OR ANY
INTEREST THEREIN."  (EMPHASIS ADDED.)  DURING CONSIDERATION OF THE BILL
ON THE SENATE FLOOR, THE AMBIT OF THESE PROVISIONS WAS NARROWED THROUGH
AMENDMENT INTO THE PRESENT WORDING OF SEC 3 (A)(13) AND (14).  48 STAT.
884.  IN ARGUING THAT IT, AS AN OFFEREE OF STOCK, OUGHT TO BE TREATED
AS A PURCHASER OR SELLER FOR PURPOSES OF THE ACT, RESPONDENT IS IN
EFFECT SEEKING A JUDICIAL REINSERTION OF LANGUAGE INTO THE ACT THAT
CONGRESS HAD BEFORE IT BUT DELETED PRIOR TO PASSAGE. 

/14/ OUR DECISION IN SEC V. NATIONAL SECURITIES, INC., 393 U.S. 453
(1969), ESTABLISHED THAT THE PURCHASER-SELLER RULE IMPOSES NO
LIMITATIONS ON THE STANDING OF THE SEC TO BRING ACTIONS FOR INJUNCTIVE
RELIEF UNDER SEC 10 (B) AND RULE 10B-5. 

/15/ BLUE CHIP DID NOT HERE PRESENT THE QUESTION OF WHETHER AN
IMPLIED ACTION UNDER SEC. 10 (B) OF THE 1934 ACT AND RULE 10B-5 WILL
LIE FOR ACTIONS MADE A VIOLATION OF THE 1933 ACT AND THE SUBJECT OF
EXPRESS CIVIL REMEDIES UNDER THE 1933 ACT.  WE THEREFORE HAVE NO
OCCASION TO PASS ON THIS ISSUE.  COMPARE ROSENBURG V. GLOBE AIRCRAFT
CORP., 80 F. SUPP. 123 (ED PA. 1948), WITH THIELE V. SHIELDS, 131
F.SUPP.  416 (SDNY 1955).  CF. 3 L. LOSS, SECURITIES REGULATION 1787 -
1791 (2D ED. 1961); 6 L. LOSS, SECURITIES REGULATION 3915 - 3917
(1969); 1 BROMBERG SEC. 2.4 (2). 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, CONCURRING. 

ALTHOUGH I JOIN THE OPINION OF THE COURT, I WRITE TO EMPHASIZE THE
SIGNIFICANCE OF THE TEXTS OF THE ACTS OF 1933 AND 1934 AND ESPECIALLY
THE LANGUAGE OF SEC. 10 (B) AND RULE 10B-5. 

        I 

THE STARTING POINT IN EVERY CASE INVOLVING CONSTRUCTION OF A STATUTE
IS THE LANGUAGE ITSELF.  THE CRITICAL PHRASE IN BOTH THE STATUTE AND
THE RULE IS "IN CONNECTION WITH THE PURCHASE OR SALE OF ANY SECURITY." 
15 U.S.C. SEC. 78J (B); 17 CRF SEC. 240.10B-5 (EMPHASIS ADDED). 
PROVIDES THAT THE TERM "SALE" SHALL "INCLUDE ANY CONTRACT TO SELL OR
OTHERWISE DISPOSE OF" SECURITIES.  THERE IS NO HINT IN ANY PROVISION OF
THE ACT THAT THE TERM "SALE," AS USED IN SEC. 10 (B), WAS INTENDED--IN
ADDITION TO ITS LONG-ESTABLISHED LEGAL MEANING--TO INCLUDE AN "OFFER TO
SELL."  RESPONDENT, NEVERTHELESS, WOULD HAVE US AMEND THE CONTROLLING
LANGUAGE IN SEC. 10 (B) TO READ: 

"IN CONNECTION WITH THE PURCHASE OR SALE OF, OR AN OFFER TO SELL,
ANY SECURITY."  BEFORE A COURT PROPERLY COULD CONSIDER TAKING SUCH
LIBERTY WITH STATUTORY LANGUAGE THERE SHOULD BE, AT LEAST, UNMISTAKABLE
SUPPORT IN THE HISTORY AND STRUCTURE OF THE LEGISLATION.  NONE EXISTS
IN THIS CASE. 

NOTHING IN THE HISTORY OF THE 1933 AND 1934 ACTS SUPPORTS ANY
CONGRESSIONAL INTENT TO INCLUDE MERE OFFERS IN SEC. 10 (B).  MOREOVER,
AS THE COURT'S OPINION INDICATES, IMPRESSIVE EVIDENCE IN THE TEXTS OF
THE TWO ACTS DEMONSTRATES CLEARLY THAT CONGRESS SELECTIVELY AND
CAREFULLY DISTINGUISHED BETWEEN OFFERS, PURCHASES, AND SALES.  FOR
EXAMPLE, SEC. 17 (A), THE ANTIFRAUD PROVISION OF THE 1933 ACT, 15
U.S.C. SEC. 77Q (A), ESPRESSLY INCLUDES "OFFERS)" OF SECURITIES WITHIN
ITS TERMS WHILE SEC. 10 (B) OF THE 1934 ACT AND RULE 10B-5 DO NOT.  THE
1933 ACT ALSO DEFINES "OFFER TO SELL" AS SOMETHING DISTINCT FROM A
SALE.  SEC. 2 (3), 15 U.S.C. SEC. 77B (3). 

IF FURTHER EVIDENCE OF CONGRESSIONAL INTENT WERE NEEDED, IT MAY BE
FOUND IN THE SUBSEQUENT HISTORY OF THESE ACTS.  AS NOTED IN THE COURT'S
OPINION, THE SECURITIES AND EXCHANGE COMMISSION UNSUCCESSFULLY SOUGHT,
IN 1957 AND AGAIN IN 1959, TO PERSUADE CONGRESS TO BROADEN SEC. 10 (B)
BY ADDING TO THE CRITICAL LANGUAGE:  "OR ATTEMPT TO PURCHASE OR SELL"
ANY SECURITY.  SEE ANTE, AT 732. 

THIS CASE INVOLVES NO "PURCHASE OR SALE" OF SECURITIES.  /1/
RESPONDENT WAS A MERE OFFEREE, WHICH INSTITUTED THIS SUIT SOME TWO
YEARS AFTER THE SHARES WERE ISSUED AND AFTER THE MARKET PRICE HAD
SOARED.  HAVING "MISSED THE MARKET" ON A STOCK, IT IS HARDLY IN A
UNIQUE POSITION.  THE CAPITAL THAT FUELS OUR ENTERPRISE SYSTEM COMES
FROM INVESTORS WHO HAVE FREQUENT OPPORTUNITIES TO PURCHASE, OR NOT TO
PURCHASE, SECURITIES BEING OFFERED PUBLICLY.  THE MARKET PRICES OF NEW
ISSUES RARELY REMAIN STATIC:  ALMOST INVARIABLY THEY GO UP OR DOWN, AND
THEY OFTEN FLUCTUATE WIDELY OVER A PERIOD FAR LESS THAT THE TWO YEARS
DURING WHICH RESPONDENT REFLECTED ON ITS LOST OPPORTUNITY.  MOST
INVESTORS HAVE UNHAPPY MEMORIES OF DECISIONS NOT TO BUY STOCKS WHICH
LATER PERFORMED WELL. 

THE OPINION OF THE COURT, AND THE DISSENTING OPINION OF JUDGE
HUFSTEDLER IN THE COURT OF APPEALS, CORRECTLY EMPHASIZE THE SUBJECTIVE
NATURE OF THE INEVITABLE INQUIRY IF THE TERM "OFFER" WERE READ INTO THE
ACT AND SOME ARGUABLE ERROR COULD BE FOUND IN AN OFFERING PROSPECTUS:
" WOULD I HAVE PURCHASED THIS PARTICULAR SECURITY AT THE TIME IT WAS
OFFERED IF I HAD KNOWN THE CORRECT FACTS?"  APART FROM THE HUMAN
TEMPTATION FOR THE PLAINTIFF TO ANSWER THIS QUESTION IN A SELF-SERVING
FASHION, THE OFFEROR OF THE SECURITIES--DEFENDANT IN THE SUIT--IS
SEVERELY HANDICAPPED IN CHALLENGING THE PREDICTABLE TESTIMONY.  /2/
THE SUBJECTIVE ISSUES WOULD BE EVEN MORE SPECULATIVE IN THE CLASS
ACTIONS THAT INEVITABLY WOULD FOLLOW IF WE HELD THAT OFFERS TO SELL
SECURITIES ARE COVERED BY SEC. 10 (B) AND RULE 10B-5. 

IN THIS CASE RESPONDENT WAS CLEARLY IDENTIFIABLE AS AN OFFEREE, AS
HERE THE SHARES WERE OFFERED TO DESIGNATED PERSONS.  /3/ IN THE MORE
CUSTOMARY PUBLIC SALE OF SECURITIES, IDENTIFICATION OF THOSE WHO IN
FACT WERE BONA FIDE OFFEREES WOULD PRESENT SEVERE PROBLEMS OF PROOF. 
THE 1933 ACT REQUIRES THAT OFFERS TO SELL REGISTERED SECURITIES BE MADE
BY MEANS OF AN EFFECTIVE PROSPECTUS.  SEC. 5 (B), 15 U.S.C. SEC. 77E
(B).  ISSUES ARE USUALLY MARKETED THROUGH UNDERWRITERS AND DEALERS,
OFTEN INCLUDING SCORES OF INVESTMENT BANKING AND BROKERAGE FIRMS ACROSS
THE COUNTRY.  COPIES OF THE PROSPECTUS MAY BE WIDELY DISTRIBUTED
THROUGHT THE DEALER GROUP, AND THEN PASSED HAND TO HAND AMONG COUNTLESS
PERSONS WHOSE IDENTITIES CANNOT BE KNOWN.  IF SEC. 10(B) WERE EXTENDED
TO EMBRACE OFFERS TO SELL, THE NUMBER OF PERSONS CLAIMING TO HAVE BEEN
OFFEREES COULD BE LEGION WITH RESPECT TO ANY SECURITY THAT SUBSEQUENTLY
PROVED TO BE A REWARDING INVESTMENT. 

WE ARE ENTITLED TO ASSUME THAT THE CONGRESS, IN ENACTING SEC. 10 (B)
AND IN SUBSEQUENTLY DECLINING TO EXTEND IT, TOOK INTO ACCOUNT THESE AND
SIMILAR CONSIDERATIONS.  THE COURTS ALREADY HAVE INFERRED A PRIVATE
CAUSE OF ACTION THAT WAS NOT AUTHORIZED BY THE LEGISLATION.  IN DOING
THIS, HOWEVER, IT WAS UNNECESSARY TO REWRITE THE PRECISE LANGUAGE OF
SEC. 10 (B) AND RULE 10B-5.  THIS IS EXACTLY WHAT RESPONDENT--JOINED,
SURPRISINGLY, BY THE SEC--, SOUGHT IN THIS CASE.  /4/ IF SUCH A FAR
REACHING CHANGE IS TO BE MADE, WITH UNPREDICTABLE CONSEQUENCES FOR THE
PROCESS OF RAISING CAPITAL SO NECESSARY TO OUR ECONOMIC WELL-BEING, IT
IS A MATTER FOR THE CONGRESS, NOT THE COURTS. 

        II 

MR. JUSTICE BLACKMUN'S DISSENT CHARGES THE COURT WITH "A
PRETERNATURAL SOLICITOUSNESS FOR CORPORATE WELL-BEING AND A SEEMING
CALLOUSNESS TOWARD THE INVESTING PUBLIC."  OUR TASK IN THIS CASE IS TO
CONSTRUE A STATUTE.  IN MY VIEW, THE ANSWER IS PLAINLY COMPELLED BY THE
LANGUAGE AS WELL AS THE LEGISLATIVE HISTORY OF THE 1933 AND 1934 ACTS. 
BUT EVEN IF THE LANGUAGE IS NOT "PLAIN" TO ALL, I WOULD HAVE THOUGHT
NONE COULD DOUBT THAT THE STATUTE CAN BE READ FAIRLY TO SUPPORT THE
RESULT THE COURT REACHES.  INDEED, IF ONE TAKES A DIFFERENT VIEW--AND
IMPUTES CALLOUSNESS TO ALL WHO DISAGREE--HE MUST ATTRIBUTE A LACK OF
LEGAL AND SOCIAL PERCEPTION TO THE SCORES OF FEDERAL JUDGES WHO HAVE
FOLLOWED BIRNBAUM FOR TWO DECADES. 

THE DISSENTING OPINION ALSO CHARGES THE COURT WITH PAYING "NO HEED
TO THE UNREMEDIED WRONG" ARISING FROM THE TYPE OF "FRAUD THAT MAY
RESULT FROM REAFFIRMANCE OF THE BIRNBAUM RULE.  IF AN ISSUE OF
STATUTORY CONSTRUCTION IS TO BE DECIDED ON THE BASIS OF ASSURING A
FEDERAL REMEDY--IN ADDITION TO STATE REMEDIES--FOR EVERY PERCEIVED
FRAUD, AT LEAST WE SHOULD STRIKE A BALANCE BETWEEN THE OPPORTUNITIES
FOR FRAUD PRESENTED BY THE CONTENDING VIEWS.  IT MAY WELL BE CONCEDED
THAT BIRNBAUM DOES ALLOW SOME FRAUD TO GO UNREMEDIED UNDER THE FEDERAL
SECURITIES ACTS.  BUT THE CONSTRUCTION ADVOCATED BY THE DISSENT COULD
RESULT IN WIDER OPPORTUNITIES FOR FRAUD.  AS THE COURT'S OPINION MAKES
PLAIN, ABANDONING THE BIRNBAUM CONSTRUCTION IN FAVOR OF THE RULE URGED
BY THE DISSENT WOULD INVITE ANY PERSON WHO FAILED TO PURCHASE A NEWLY
OFFERED SECURITY THAT SUBSEQUENTLY ENJOYED SUBSTANTIAL MARKET
APPRECIATION TO FILE A CLAIM ALLEGING THAT THE OFFERING PROSPECTUS
UNDERSTATED THE COMPANY'S POTENTIAL.  THE NUMBER OF POSSIBLE PLAINTIFFS
WITH RESPECT TO A PUBLIC OFFERING WOULD BE VIRTUALLY UNLIMITED.  AS
NOTED ABOVE (PART I, N. 2), AN HONEST OFFEROR COULD BE CONFRONTED WITH
SUBJECTIVE CLAIMS BY PLAINTIFFS WHO HAD NEITHER PURCHASED ITS
SECURITIES NOR SERIOUSLY CONSIDERED THE INVESTMENT.  IT FREQUENTLY
WOULD BE IMPOSSIBLE TO REFUTE A PLAINTIFF'S ASSERTION THAT HE RELIED ON
THE PROSPECTUS, OR EVEN THAT HE MADE A DECISION NOT TO BUY THE OFFERED
SECURITIES.  A RULE ALLOWING THIS TYPE OF OPEN-ENDED LITIGATION WOULD
ITSELF BE AN INVITATION TO FRAUD.  /5/ 

/1/ IT IS ARGUED THAT THE LANGUAGE "IN CONNECTION WITH" JUSIFIES
EXTENDING SEC. 10 (B) TO INCLUDE OFFERS WHICH NECESSARILY PRECEDE A
PURCHASE OR SALE.  THE SHORT ANSWER IS THAT THE STATUTE REQUIRES A
PURCHASE OR A SALE OF A SECURITY, AND NO OFFER WAS MADE TO RESPONDENT
IN CONNECTION WITH EITHER.  ITS COMPLAINT RESTS UPON THE ABSENCE OF A
SALE TO OR PURCHASE BY IT. 

/2/ PROVING, AFTER THE FACT, WHAT "ONE WOULD HAVE DONE" ENCOMPASSES
A NUMBER OF CONJECTURAL AS WELL AS SUBJECTIVE ISSUES:  WOULD THE
OFFEREE HAVE BOUGHT AT ALL; HOW MANY SHARES WOULD HE HAVE BOUGHT; HOW
LONG WOULD HE HAVE HELD THE SHARES; WERE THERE OTHER "BUYS" ON THE
MARKET AT THE TIME THAT MAY HAVE BEEN MORE ATTRACTIVE EVEN HAD THE
OFFEREE KNOWN THE FACTS; DID HE IN FACT USE HIS AVAILABLE FUNDS (IF
ANY) MORE ADVANTAGEOUSLY BY PURCHASING SOMETHING ELSE? 

/3/ IT IS ARGUED THAT THE SPECIAL FACTS OF THIS CASE JUSTIFY
EXTENDING THE BENEFIT OF SEC. 10 (B) TO THIS RESPONDENT, EVEN IF THE
STATUTE ORDINARILY REQUIRES A PURCHASE OR A SALE.  BUT THIS RESOLUTION
ALSO WOULD REQUIRE JUDICIAL EXTENSION OF THE TERMS OF THE STATUTE.  THE
MERE FACT THAT THE SECURITIES ARE OFFERED TO A LIMITED CLASS OF
OFFEREES MAY ELIMINATE SOME OF THE PROBLEMS OF PROOF BUT IT DOES NOT
AVOID THE FATAL OBJECTION THAT NO OFFER OF SECURITIES, ABSENT A
PURCHASE OR SALE, IS COVERED BY THE STATUTE. 

/4/ IT IS MORE THAN CURIOUS THAT THE SEC SHOULD SEEK THIS CHANGE IN
THE 1934 ACT BY JUDICIAL ACTION.  THE STATED PURPOSE OF THE 1933 ACT
WAS "(TO PROVIDE FULL AND FAIR DISCLOSURE OF THE CHARACTER OF
SECURITIES SOLD IN INTERSTATE AND FOREIGN COMMERCE . . . ."  SEE
PREAMBLE TO ACT, 48 STAT. 74.  THE EVIL ADDRESSED WAS THE TENDENCY OF
THE SELLER TO EXAGGERATE, TO "PUFF," AND SOMETIMES FRAUDULENTLY TO
OVERSTATE THE PROSPECTS AND EARNING CAPABILITIES OF THE ISSUING
CORPORATION.  THE DECADE OF THE 1920'S WAS MARKED BY FINANCINGS IN
WHICH THE BUYING PUBLIC WAS OVERSOLD, AND OFTEN MISLED, BY THE BUOYANT
OPTIMISM OF ISSUERS AND UNDERWRITERS.  THE 1933 ACT WAS INTENDED TO
COMPEL MODERATION AND CAUTION IN PROSPECTUSES, AND THIS IS PRECISELY
THE WAY THE ACT HAD BEEN ADMINISTERED BY THE SEC FOR MORE THAN 40
YEARS.  PRECISE FACTUAL ACCURACY WITH RESPECT TO A CORPORATE ENTERPRISE
IS FREQUENTLY IMPOSSIBLE, EXCEPT WITH RESPECT TO HARD FACTS.  THE
OUTCOME OF PENDING LITIGATION, THE EFFECT OF RELATIVELY NEW
LIGISLATION, THE POSSIBLE ENACTMENT OF ADVERSE LEGISLATION, THE COST OF
PROJECTED CONSTRUCTION OR OF ENTERING NEW MARKETS, THE EXPENDITURES
NEEDED TO MEET CHANGING ENVIRONMENTAL REGULATIONS, THE LIKELIHOOD AND
EFFECT OF NEW COMPETITION OR OF NEW TECHNOLOGY, AND MANY SIMILAR
MATTERS OF POTENTIAL RELEVANCY MUST BE ADDRESSED IN REGISTRATION
STATEMENTS AND PROSPECTUSES.  IN ADMINISTERING THE 1933 ACT, THE SEC
TRADITIONALLY AND CONSISTENTLY HAS ENCOURAGED AND OFTEN REQUIRED
OFFERORS TO TAKE CONSERVATIVE POSTURES IN PROSPECTUSES, ESPECIALLY WITH
RESPECT TO JUDGMENTAL AND POSSIBLY UNFAVORABLE MATTERS.  IF A DIFFERENT
PHILOSOPHY NOW WERE READ INTO THE 1934 ACT, INVITING LITIGATION FOR
ARGUABLY MISLEADING UNDERSTATEMENT AS WELL AS FOR OVERSTATEMENT OF THE
ISSUER'S PROSPECTS, THE HAZARD OF "GOING TO MARKET"--ALREADY NOT
INCONSEQUENTIAL--WOULD BE IMMEASURABLY INCREASED. 

/5/ THE DISSENT ALSO CHARGES THAT WE ARE CALLOUS TOWARD THE
"INVESTING PUBLIC"--A TERM IT DOES NOT DEFINE.  IT WOULD HAVE BEEN MORE
ACCURATE, PERHAPS, TO HAVE SPOKEN OF THE NONINVESTING PUBLIC, BECAUSE
THE COURT'S DECISION DOES NOT ABANDON THE INVESTING PUBLIC.  THE GREAT
MAJORITY OF REGISTERED ISSUES OF SECURITIES ARE OFFERED BY ESTABLISHED
CORPORATIONS THAT HAVE SHARES OUTSTANDING AND HELD BY MEMBERS OF THE
INVESTING PUBLIC.  THE TYPES OF SUITS THAT THE DISSENT WOULD ENCOURAGE
COULD RESULT IN LARGE DAMAGE CLAIMS, COSTLY LITIGATION, GENEROUS
SETTLEMENTS TO AVOID SUCH COST, AND OFTEN--WHERE THE LITIGATION RUNS
ITS COURSE--IN LARGE VERDICTS.  THE SHAREHOLDERS OF THE DEFENDANT
CORPORATIONS--THE "INVESTING PUBLIC"--WOULD ULTIMATELY BEAR THE BURDEN
OF THIS LITIGATION, INCLUDING THE FRAUDULENT SUITS THAT WOULD NOT BE
SCREENED OUT BE THE DISSENT'S BARE REQUIREMENT OF A "LOGICAL NEXUS
BETWEEN THE ALLEGED FRAUD AND THE SALE OR PURCHASE OF A SECURITY." 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

TODAY THE COURT GRAVES INTO STONE BIRNBAUMS'S /1/ ARBITRARY
PRINCIPLE OF STANDING.  FOR THIS TASK THE COURT, UNFORTUNATELY, CHOOSES
TO UTILIZE THREE BLUNT CHISELS:  (1) RELIANCE ON THE LEGISLATIVE
HISTORY OF THE 1933 AND 1934 SECURITIES ACTS, CONCEDED AS INCONCLUSIVE
IN THIS PARTICULAR CONTEXT; (2) ACCEPTANCE AS PRECEDENT OF TWO DECADES
OF LOWER COURT DECISIONS FOLLOWING A DOCTRINE, NEVER BEFORE EXAMINED
HERE, THAT WAS PRONOUNCED BY A JUSTIFIABLY ESTEEMED PANEL OF THAT COURT
OF APPEALS REGARDED AS THE " MOTHER COURT" IN THIS AREA OF LAW, /2/ BUT
UNDER ENTIRELY DIFFERENT CIRCUMSTANCES; AND (3) RESORT TO UTTER
PRAGMATICALITY AND A CONJECTURAL ASSERTION OF "POLICY CONSIDERATIONS"
DEEMED TO ARISE IN DISTINGUISHING THE MERITORIOUS RULE 10B-5 SUIT FROM
THE MERETRICIOUS ONE.  IN SO DOING, THE COURT EXHIBITS A PRETERNATURAL
SOLICITOUSNESS FOR CORPORATE WELL-BEING AND A SEEMING CALLOUSNESS
TOWARD THE INVESTING PUBLIC QUITE OUT OF KEEPING, IT SEEMS TO ME, WITH
OUR OWN TRADITIONS AND THE INTENT OF THE SECURITIES LAWS.  SEE
AFFILIATED UTE CITIZENS V. UNITED STATES, 406 U.S. 128, 151 (1972);
SUPERINTENDENT OF INSURANCE V. BANKERS LIFE & CAS. CO., 404 U.S. 6, 12
(1971); SEC V. NATIONAL SECURITIES, INC., 393 U.S. 453, 463 (1969);
TCHEREPNIN V. KNIGHT, 389 U.S. 332, 336 (1967); SEC V. CAPITAL GAINS
BUREAU, 375 U.S. 180, 195 (1963). 

THE PLAINTIFF'S COMPLAINT--AND THAT IS ALL THAT IS BEFORE US NOW--
RAISES DISTURBING CLAIMS OF FRAUD.  IT ALLEGES THAT THE DIRECTORS OF "
NEW BLUE CHIP" AND THE MAJORITY SHAREHOLDERS OF " OLD BLUE CHIP"
ENGAGED IN A DECEPTIVE AND MANIPULATIVE SCHEME DESIGNED TO SUBVERT THE
INTENT OF THE 1967 ANTITRUST CONSENT DECREE AND TO ENHANCE THE VALUE OF
THEIR OWN SHARES IN A SUBSEQUENT OFFERING.  ALTHOUGH THE COMPLAINT IS
TOO LONG TO REPRODUCE HERE, SEE APP. 4-22, THE PLAINTIFF, IN SHORT,
CONTENDS THAT THE MUCH-NEGOTIATED PLAN OF REORGANIZATION OF OLD BLUE
CHIP, PURSUANT TO THE DECREE AND APPROVED BY THE DISTRICT COURT, WAS
INTENDED TO COMPENSATE FORMER RETAILER-USERS OF BLUE CHIP STAMPS FOR
DAMAGES SUFFERED AS A RESULT OF THE ANTITRUST VIOLATIONS.  ACCORDINGLY,
THE MAJORITY SHAREHOLDERS WERE TO BE DIVESTED OF 55% OF THEIR INTEREST;
OLD BLUE CHIP WAS TO BE MERGED INTO A NEW COMPANY; AND 55% OF THE
COMMON SHARES OF THE NEW COMPANY WERE TO BE OFFERED TO THE FORMER USERS
ON A PRO RATA BASIS, DETERMINED BY THE QUANTITY OF STAMPS ISSUED TO
EACH OF THESE NONSHAREHOLDING USERS DURING A DESIGNATED PERIOD.  SOME
621,000 SHARES WERE THUS TO BE OFFERED IN UNITS, EACH CONSISTING OF
THREE SHARES OF COMMON AND A $100 DEBENTURE, IN RETURN FOR $101 CASH. 

IT IS THE PLAINTIFF'S PLEADED POSITION THAT THIS OFFER TO THE FORMER
USERS WAS INTENDED BY THE ANTITRUST COURT AND THE GOVERNMENT TO BE A
"BARGAIN," SINCE THE THEN REASONABLE MARKET VALUE OF EACH UNIT WAS
ACTUALLY $315.  THE PLAINTIFF ALLEGED, HOWEVER, THAT THE OFFERING
SHAREHOLDERS HAD NO INTENTION OF COMPLYING IN GOOD FAITH WITH THE TERMS
OF THE CONSENT DECREE AND OF PERMITTING THE FORMER USERS OF BLUE CHIP
STAMPS TO OBTAIN THE BARGAIN OFFERING.  RATHER, THEY CONSPIRED TO
DISSUADE THE OFFEREES FROM PURCHASING THE UNITS BY INCLUDING
SUBSTANTIALLY MISLEADING AND NEGATIVE INFORMATION IN THE PROSPECTUS
UNDER THE HEADING " ITEMS OF SPECIAL INTEREST."  THE PROSPECTUS
CONTAINED THE FOLLOWING STATEMENTS, ALLEGEDLY FALSE AND ALLEGEDLY MADE
TO DETER THE PLAINTIFF AND ITS CLASS FROM PURCHASING THE UNITS:  (1)
THAT "(NET INCOME FOR THE CURRENT FISCAL YEAR WILL BE ADVERSELY
AFFECTED BY PAYMENTS AGGREGATING $8,486,000 MADE SINCE MARCH 2, 1968 IN
SETTLEMENT OF CLAIMS" AGAINST NEW BLUE CHIP; (2) THAT NET INCOME "WOULD
BE ADVERSELY AFFECTED BY A SUBSTANTIAL DECREASE IN THE USE OF THE
COMPANY'S TRADING STAMP SERVICE"; (3) THAT NET INCOME "WOULD BE
ADVERSELY AFFECTED BY A SALE OF ONE-THIRD OF THE COMPANY'S TRADING
STAMP BUSINESS IN CALIFORNIA"; (4) THAT " CLAIMS OR CAUSES OF ACTION
(AS DEFINED) AGAINST THE COMPANY, INCLUDING PRAYERS FOR TREBLE DAMAGES,
NOW AGGREGATE APPROXIMATELY $29,000,000"; AND (5) THAT, BASED UPON
"STATISTICAL EVALUATIONS," "THE COMPANY PRESENTLY ESTIMATES THAT 97.5%
OF ALL STAMPS ISSUED WILL ULTIMATELY BE REDEEMED."  APP.  56, 66. 

PLAINTIFF ALLEGED THAT THESE NEGATIVE STATEMENTS WERE KNOWN, OR
SHOULD HAVE BEEN KNOWN, BY THE DEFENDANTS TO BE FALSE SINCE, FOR
EXAMPLE, THE $29,000,000 IN PURPORTED LEGAL CLAIMS WERE SETTLED FOR
LESS THAN ,000,000 ONLY THREE MONTHS LATER, AND, AS A HISTORICAL FACT,
LESS THAN 90% OF ALL TRADING STAMPS ARE REDEEMED.  IMPORTANTLY, WHEN
THE DEFENDANTS OFFERED THEIR OWN SHARES FOR SALE TO THE PUBLIC A YEAR
LATER, THE PROSPECTUS ISSUED AT THAT TIME MADE NO REFERENCE TO THESE
FACOTRS EVEN THOUGH, TO THE EXTENT THAT THEY WERE RELEVANT ON THE DATE
OF THE FIRST PROSPECTUS, ONE YEAR EARLIER, THEY WOULD HAVE BEEN EQUALLY
RELEVANT ON THE DATE OF THE SECOND.  AS A RESULT OF THE DEFENDANTS'
NEGATIVE STATEMENTS, PLAINTIFF CLAIMS THAT IT AND ITS CLASS WERE
DISSUADED FROM EXERCISING THEIR OPTION TO PURCHASE BLUE CHIP SHARES AND
THAT THEY WERE DAMAGED ACCORDINGLY. 

FROM A READING OF THE COMPLAINT IN RELATION TO THE LANGUAGE OF SEC
10(B) OF THE 1934 ACT AND OF RULE 10B-5, IT IS MANIFEST THAT PLAINTIFF
HAS ALLEGED THE USE OF A DECEPTIVE SCHEME "IN CONNECTION WITH THE
PURCHASE OR SALE OF ANY SECURITY."  TO MY MIND, THE WORD "SALE"
ORDINARILY AND NATURALLY MAY BE UNDERSTOOD TO MEAN, NOT ONLY A SINGLE,
INDIVIDUALIZED ACT TRANSFERRING PROPERTY FROM ONE PARTY TO ANOTHER, BUT
ALSO THE GENERALIZED EVENT OF PUBLIC DISPOSAL OF PROPERTY THROUGH
ADVERTISEMENT, AUCTION, OR SOME OTHER MARKET MECHANISM.  HERE, THERE IS
AN OBVIOUS, INDEED A COURT-ORDERED, "SALE" OF SECURITIES IN THE SPECIAL
OFFERING OF NEW BLUE CHIP SHARES AND DEBENTURES TO FORMER USERS.  YET
THE COURT DENIES THIS PLAINTIFF THE RIGHT TO MAINTAIN A SUIT UNDER RULE
10B-5 BECAUSE IT DOES NOT FIT INTO THE MECHANISTIC CATEGORIES OF EITHER
"PURCHASER" OR "SELLER."  THIS, SURELY, IS AN ANOMALY, FOR THE VERY
PURPOSE OF THE ALLEGED SCHEME WAS TO INHIBIT THIS PLAINTIFF FROM EVER
ACQUIRING THE STATUS OF "PURCHASER."  FACED WITH THIS ABNORMAL
DIVERGENCE FROM THE USUAL PATTERN OF SECURITIES FRAUDS, THE COURT PAYS
NO HEED TO THE UNREMEDIED WRONG OR TO THE PORTMANTEAU NATURE OF SEC. 10
(B). 

THE BROAD PURPOSE AND SCOPE OF THE SECURITIES EXCHANGE ACT OF 1934
ARE MANIFEST.  SENATOR FLETCHER, CHAIRMAN OF THE SENATE COMMITTEE ON
BANKING AND CURRENCY, IN INTRODUCING S.2693, THE BILL THAT BECAME THE
1934 ACT, REVIEWED THE GENERAL PURPOSES OF THE LEGISLATION: 

     " MANIPULATORS WHO HAVE IN THE PAST HAD A COMPARATIVELY FREE

  HAND TO BEFUDDLE AND FOOL THE PUBLIC AND TO EXTRACT FROM THE

  PUBLIC MILLIONS OF DOLLARS THROUGH STOCK-EXCHANGE OPERATIONS ARE

 TO BE CURBED AND DEPRIVED OF THE OPPORTUNITY TO GROW FAT ON THE

  SAVINGS OF THE AVERAGE MAN AND WOMAN OF AMERICA.  UNDER THIS BILL

  THE SECURITIES EXCHANGES WILL NOT ONLY HAVE THE APPEARANCE OF AN

  OPEN MARKET PLACE FOR INVESTORS BUT WILL BE TRULY OPEN TO THEM,

  FREE FROM THE HECTIC OPERATIONS AND DANGEROUS PRACTICES WHICH IN

  THE PAST HAVE ENABLED A HANDFUL OF MEN TO OPERATE WITH STACKED

  CARDS AGAINST THE GENERAL BODY OF THE OUTSIDE INVESTORS.  FOR

  EXAMPLE, BESIDES FORBIDDING FRAUDULENT PRACTICES AND UNWHOLESOME

  MANIPULATIONS BY PROFESSIONAL MARKET OPERATORS, THE BILL SEEKS TO

  DEPRIVE CORPORATE DIRECTORS, CORPORATE OFFICERS, AND OTHER

  CORPORATE INSIDERS OF THE OPPORTUNITY TO PLAY THE STOCKS OF THEIR

  COMPANIES AGAINST THE INTERESTS OF THE STOCKHOLDERS OF THEIR

  COMPANIES."  78 CONG. REC. 2271 (1934). 

THE SENATOR WENT ON TO DESCRIBE THE FUNCTION OF EACH OF THE MANY
PROVISIONS OF THE BILL, INCLUDING SEC. 9 (C) WHICH, WITHOUT SIGNIFICANT
ALTERATION, BECAME SEC. 10 (B) OF THE ACT.  HE SAID, AS TO THIS

     " THE COMMISSION IS ALSO GIVEN POWER TO FORBID ANY OTHER

  DEVICES IN CONNECTION WITH SECURITY TRANSACTIONS WHICH IT FINDS

  DETRIMENTAL TO THE PUBLIC INTEREST OR TO THE PROPER PROTECTION OF

  INVESTORS."  IBID. 

SIMILARLY, THE BROAD SCOPE OF THE IDENTICAL PROVISION IN THE HOUSE
VERSION OF THE BILL WAS EMPHASIZED BY ONE OF THE PRINCIPAL DRAFTSMEN,
IN TESTIMONY BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE.  SUMMING UP SEC. 9 (C), HE STATED: 

  " SUBSECTION (C) SAYS, ' THOU SHALT NOT DEVISE ANY OTHER CUNNING
DEVICES.' 

     ". . . OF COURSE SUBSECTION (C) IS A CATCH-ALL CLAUSE TO

  PREVENT MANIPULATIVE DEVICES(.)  I DO NOT THINK THERE IS ANY

  OBJECTION TO THAT KIND OF A CLAUSE.  THE COMMISSION SHOULD HAVE

  THE AUTHORITY TO DEAL WITH NEW MANIPULATIVE DEVICES."  TESTIMONY

  OF THOMAS G. CORCORAN, HEARING ON H. R. 7852 AND H. R. 8720

  BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

  73D CONG., 2D SESS., 155 (1934). 

IN ADOPTING RULE 10B-5 IN 1942, THE SECURITIES AND EXCHANGE
COMMISSION ISSUED A PRESS RELEASE STATING:  " THE NEW RULE CLOSES A
LOOPHOLE IN THE PROTECTIONS AGAINST FRAUD ADMINISTERED BY THE
COMMISSION BY PROHIBITING INDIVIDUALS OR COMPANIES FROM BUYING
SECURITIES IF THEY ENGAGE IN FRAUD IN THEIR PURCHASE."  SEC RELEASE NO.
3230 (MAY 21, 1942).  TO SAY SPECIFICALLY THAT CERTAIN TYPES OF FRAUD
ARE WITHIN RULE 10B-5, OF COURSE, IS NOT TO SAY THAT OTHERS ARE
NECESSARILY EXCLUDED.  THAT THIS IS SO CONFIRMED BY THE APPARENTLY
CASUAL ORIGINS OF THE RULE, AS RECALLED BY A FORMER SEC STAFF ATTORNEY
IN REMARKS MADE AT A CONFERENCE ON FEDERAL SECURITIES LAWS SEVERAL
YEARS AGO: 

     IT WAS ONE DAY IN THE YEAR 1943, I BELIEVE.  I WAS SITTING IN

  MY OFFICE IN THE S.E.C. BUILDING IN PHILADELPHIA AND I RECEIVED A

  CALL FROM JIM TREANOR WHO WAS THEN THE DIRECTOR OF THE TRADING

  AND EXCHANGE DIVISION.  HE SAID, ' I HAVE JUST BEEN ON THE

  TELEPHONE WITH PAUL ROWEN,' WHO WAS THEN THE S.E.C. REGIONAL

  ADMINISTRATOR IN BOSTON, 'AND HE HAS TOLD ME ABOUT THE PRESIDENT

  OF SOME COMPANY IN BOSTON WHO IS GOING AROUND BUYING UP THE STOCK

  OF HIS COMPANY FROM HIS OWN SHAREHOLDERS AT $4.00 A SHARE, AND HE

  HAS BEEN TELLING THEM THAT THE COMPANY IS DOING VERY BADLY,

  WHEREAS, THE EARNINGS ARE GOING TO BE QUADRUPLED AND WILL BE

  $2.00 A SHARE FOR THE COMING YEAR.  IS THERE ANYTHING WE CAN DO

  ABOUT IT?" SO HE CAME UPSTAIRS AND I CALLED IN MY SECRETARY AND I

  LOOKED AT SECTION 10 (B) AND I LOOKED AT SECTION 17, AND I PUT

  THEM TOGETHER, AND THE ONLY DISCUSSION WE HAD THERE WAS WHERE 'IN

  CONNECTION WITH THE PURCHASE OR SALE' SHOULD BE, AND WE DECIDED

  IT SHOULD BE AT THE END. 

      " WE CALLED THE COMMISSION AND WE GOT ON THE CALENDAR, AND I

  DON'T REMEMBER WHETHER WE GOT THERE THAT MORNING OR AFTER LUNCH. 

  WE PASSED A PIECE OF PAPER AROUND TO ALL THE COMMISSIONERS.  ALL

  THE COMMISSIONERS READ THE RULE AND THEY TOSSED IT ON THE TABLE,

  INDICATING APPROVAL.  NOBODY SAID ANYTHING EXCEPT SUMNER PIKE WHO

  SAID, ' WELL,' HE SAID, 'WE ARE AGAINST FRAUD, AREN'T WE?'  THAT

  IS HOW IT HAPPENED."  REMARKS OF MILTON FREEMAN, CONFERENCE ON

  CODIFICATION OF THE FEDERAL SECURITIES LAWS, 22 BUS.  LAW.  793,

  922 (1967). 

THE QUESTION UNDER BOTH RULE 10B-5 AND ITS PARENT STATUTE, SEC. 10
(B), IS WHETHER FRAUD WAS EMPLOYED--AND THE LANGUAGE IS CRITICAL--BY
"ANY PERSON . . . IN CONNECTION WITH THE PURCHASE OR SALE OF ANY
SECURITY."  ON THE ALLEGATIONS HERE, THE NEXUS BETWEEN THE ASSERTED
FRAUD AND THE CONDUCTING OF A "SALE" IS OBVIOUS AND INESCAPABLE, AND NO
MORE SHOULD BE REQUIRED TO SUSTAIN THE PLAINTIFF'S COMPLAINT AGAINST A
MOTION TO DISMISS. 

THE FACT SITUATION IN BIRMBAUM ITSELF, OF COURSE, IS FAR REMOVED
FROM THAT NOW BEFORE THE COURT, FOR THERE THE FUNDAMENT OF THE
COMPLAINT WAS THAT THE CONTROLLING SHAREHOLDER HAD MISREPRESENTED THE
CIRCUMSTANCES OF AN ATTRACTIVE MERGER OFFER AND THEN, AFTER REJECTING
THE MERGER, HAD SOLD HIS CONTROLLING SHARES AT A PRICE DOUBLE THEIR
MARKET VALUE TO A CORPORATION FORMED BY 10 MANUFACTURERS WHO WISHED
CONTROL OF A CAPTIVE SOURCE'S SUPPLY WHEN THERE WAS A MARKET SHORTAGE. 
THE SECOND CIRCUIT TURNED ASIDE AN EFFORT BY SMALL SHAREHOLDERS TO
BRING THIS CLAIM OF BREACH OF FIDUCIARY DUTY UNDER RULE 10B-5 BY
CONCLUDING THAT THE RULE AND SEC. 10 (B) PROTECTED ONLY THOSE WHO HAD
BOUGHT OR HAD SOLD SECURITIES. 

MANY CASES APPLYING THE BIRNBAUM DOCTRINE AND CONTINUING CRITICAL
COMMENTS FROM THE ACADEMIC WORLD /3/ FOLLOWED IN ITS WAKE, BUT UNTIL
TODAY THE COURT REMAINED SERENLY ABOVE THE FRAY. 

TO SUPPORT ITS DECISION TO ADOPT THE BIRNBAUM DOCTRINE, THE COURT
POINTS TO THE "LONGSTANDING ACCEPTANCE BY THE COURTS" AND TO "
CONGRESS' FAILURE TO REJECT BIRNBAUM'S REASONABLE INTERPRETATION OF THE
WORDING OF SEC. 10 (B)."  ANTE, AT 733.  IN ADDITION, THE COURT
PURPORTS TO FIND SUPPORT IN "EVIDENCE FROM THE TEXTS OF THE 1933 AND
1934 ACTS,"  ALTHOUGH IT CONCEDES THIS TO BE "NOT CONCLUSIVE."  IBID. 
BUT THE GREATER PORTION OF THE COURT'S OPINION IS DEVOTED TO ITS
DISCUSSION OF THE "DANGER OF VEXATIOUSNESS," ANTE, AT 739, THAT
ACCOMPANIES LITIGATION UNDER RULE 10B-5 AND THAT IS SAID TO BE
"DIFFERENT IN DEGREE AND IN KIND FROM THAT WHICH ACCOMPANIES LITIGATION
IN GENERAL."  IBID.  IT SPEAKS OF HARM FROM THE "VERY PENDENCY OF THE
LAW SUIT," ANTE, AT 740, SOMETHING LIKE THE RECOGNIZED DILEMMA OF THE
PHYSICIAN SUED FOR MALPRACTICE; OF THE "DISRUPTION OF NORMAL BUSINESS
ACTIVITIES WHICH MAY ACCOMPANY A LAWSUIT," ANTE, AT 743; AND OF "PROOF
. . . WHICH DEPENDS) ALMOST ENTIRELY ON ORAL TESTIMONY," IBID., AS IF
ALL THESE WERE UNKNOWN TO LAWSUITS TAKING PLACE IN AMERICA'S
COURTHOUSES EVERY DAY.  IN TURNING TO, AND BEING INFLUENCED BY, THESE
"POLICY CONSIDERATIONS," ANTE, AT 737, OR THESE "CONSIDERATIONS OF
POLICY,"  ANTE, AT 749, THE COURT, IN MY VIEW, UNFORTUNATELY MIRES
ITSELF IN SPECULATION AND CONJECTURE NOT USUALLY SEEN IN ITS OPINIONS. 
IN ORDER TO SUPPORT AN INTERPRETATION THAT OBVIOUSLY NARROWS A
PROVISION OF THE SECURITIES LAWS DESIGNATED TO BE A "CATCH-ALL," THE
COURT TAKES ALARM AT THE "PRACTICAL DIFFICULTIES," ANTE, AT 754, 755,
THAT WOULD FOLLOW THE REMOVAL OF BIRNMAUM'S BARRIER. 

CERTAINLY, THIS COURT MUST BE AWARE OF THE REALITIES OF LIFE, BUT IT
IS UNWARRANTED FOR THE COURT TO TAKE FORM OF ATTENUATED JUDICIAL NOTICE
OF THE MOTIVATIONS THAT DEFENSE COUNSEL MAY HAVE IN SETTLING A CASE, OR
OF THE DIFFICULTIES THAT A PLAINTIFF MAY HAVE IN PROVING HIS CLAIM. 

PERHAPS IT IS TRUE THAT MORE CASES THAT COME WITHIN THE BIRNBAUM
DOCTRINE CAN BE PROPERLY PROVED THAN THOSE THAT FALL OUTSIDE IT.  BUT
THIS IS NO REASON FOR DENYING STANDING TO SUE TO PLAINTIFFS, SUCH AS
THE ONE IN THIS CASE, WHO ALLEGEDLY ARE INJURED BY NOVEL FORMS OF
MANIPULATION.  WE SHOULD BE WARY ABOUT HEEDING THE SEDUCTIVE CALL OF
EXPEDIENCY AND ABOUT SUBSTITUTING CONVENIENCE AND EASE OF PROCESSING
FOR THE MORE DIFFICULT TASK OF SEPARATING THE GENUINE CLAIM FROM THE
UNFOUNDED ONE. 

INSTEAD OF THE ARTIFICIALITY OF BIRNBAUM, THE ESSENTIAL TEST OF A
VALID RULE 10B-5 CLAIM, IT SEEMS TO ME, MUST BE THE SHOWING OF A
LOGICAL NEXUS BETWEEN THE ALLEGED FRAUD AND THE SALE OF PURCHASE OF A
SECURITY.  IT IS INCONCEIVABLE THAT CONGRESS COULD HAVE INTENDED A
BROAD-RANGING ANTIFRAUD PROVISION, SUCH AS SEC. 10 (B), AND, AT THE
SAME TIME, HAVE INTENDED TO IMPOSE, OR BE DEEMED TO WELCOME, A
MECHANICAL OVERTONE AND REQUIREMENT SUCH AS THE BIRNBAUM DOCTRINE.  THE
FACTS OF THIS CASE, IF PROVED AND ACCEPTED BY THE FACTFINDER, SURELY
ARE WITHIN THE CONDUCT THAT CONGRESS INTENDED TO BAN.  WHETHER THIS
PARTICULAR PLAINTIFF, OR ANY PLAINTIFF, WILL BE ABLE EVENTUALLY TO
CARRY THE BURDENS OF PROVING FRAUD AND OF PROVING RELIANCE AND DAMAGE--
THAT IS, CAUSALITY AND INJURY--IS A MATTER THAT SHOULD NOT BE LEFT TO
SPECULATIONS OF "POLICY" OF THE KIND NOW ADVANCED IN THIS FORUM SO FAR
REMOVED FROM WITNESSES AND EVIDENCE. 

FINALLY, I AM UNEASY ABOUT THE TYPE OF PRECEDENT THE PRESENT
DECISION ESTABLISHES.  POLICY CONSIDERATIONS CAN BE APPLIED AND
UTILIZED IN LIKE FASHION IN OTHER SITUATIONS.  THE ACCEPTANCE OF THIS
DECISIONAL ROUTE IN THIS CASE MAY WELL COME BACK TO HAUNT US ELSEWHERE
BEFORE LONG.  I WOULD DECIDE THE CASE TO FULFILL THE BROAD PURPOSE THAT
THAT LANGUAGE OF THE STATUTES AND THE LEGISLATIVE HISTORY DICTATE, AND
I WOULD AVOID THE COURT'S PRAGMATIC SOLUTION RESTING UPON A 20-YEAR
OLD, SEVERELY CRITICIZED DOCTRINE ENUNCIATED FOR A FACTUALLY DISTINCT
SITUATION. 

IN SHORT, I WOULD ABANDON THE BIRNBAUM DOCTRINE AS A RULE OF
DECISION IN FAVOR OF A MORE GENERAL TEST OF NEXUS, JUST AS THE SEVENTH
CIRCUIT DID IN EASON V. GENERAL MOTORS ACCEPTANCE CORP., 490 F.2D 654,
661 (1973), CERT. DENIED, 416 U.S. 960 (1974).  I WOULD NOT WORRY ABOUT
ANY IMAGINED INABILITY OF OUR FEDERAL TRIAL AND APPELLATE COURTS TO
CONTROL THE FLOWERING OF THE TYPES OF CASES THAT THE COURT FEARS MIGHT
RESULT.  NOR WOULD I YET BE DISTRUBED ABOUT DIRE CONSEQUENCES THAT A
BASICALLY PESSIMISTIC ATTITUDE FORESEES IF THE BIRNBAUM DOCTRINE WERE
ALLOWED QUIETLY TO EXPIRE.  SENSIBLE STANDARDS OF PROOF AND OF
DEMONSTRABLE DAMAGES WOULD EVOLVE AND SERVE TO PROTECT THE WORTHY AND
SHUT OUT THE FRIVOLOUS. 

/1/ BIRNBAUM V. NEWPORT STEEL CORP., 193 F.2D 461 (CA2), CERT.
DENIED, 343 U.S. 956 (1952). 

/2/ JUST THIS TERM, HOWEVER, WE DID NOT VIEW WITH SUCH TENDER REGARD
ANOTHER DECISION BY THE VERY SAME PANEL.  SEE UNITED STATES V. FEOLA,
420 U.S. 671 (1975), AND ITS TREATMENT OF AN ANALOGY ADVANCED IN UNITED
STATES V. CRIMMINS, 123 F.2D 271 (CA2 1941). 

/3/ SEE, E.G., LOWENFELS, THE DEMISE OF THE BIRNBAUM DOCTRINE:  A
NEW ERA FOR RULE 10B-5, 54 VA. L. REV. 268 (1968); BOONE & MC GOWAN,
STANDING TO SUE UNDER SEC RULE 10B-5, 49 TEX. L. REV. 617 (1971);
WHITAKER, THE BIRNBAUM DOCTRINE:  AN ASSESSMENT, 23 ALA. L. REV. 543
(1971); RUDER, CURRENT DEVELOPMENTS IN THE FEDERAL LAW OF CORPORATE
FIDUCIARY RELATIONS--STANDING TO SUE UNDER RULE 10B-5, 26 BUS.  LAW. 
1289 (1971); FULLER, ANOTHER DEMISE OF THE BIRNBAUM DOCTRINE:  " TOLLS
THE KNELL OF PARTING DAY?", 25 MIAMI L. REV. 131 (1970); COMMENT,
DUMPING BIRNBAUM TO FORCE ANALYSIS OF THE STANDING REQUIREMENT UNDER
RULE 10B-5, 6 LOYOLA L. J. 230 (1975); NOTE, STANDING TO SUE IN 10B-5
ACTIONS, 49 NOTRE D. LAW.  1131 (1974); COMMENT, 10B-5 STANDING UNDER
BIRNBAUM:  THE CASE OF THE MISSING REMEDY, 24 HASTINGS L. J. 1007
(1973); COMMENT, THE PURCHASER-SELLER REQUIREMENT OF RULE 10B-5
REEVALUATED, 44 U. COLO. L. REV. 151 (1972); COMMENT, INROADS ON THE
NECESSITY FOR A CONSUMMATED PURCHASE OR SALE UNDER RULE 10B-5, 1969
DUKE L. J. 349; COMMENT, THE DECLINE OF THE PURCHASER-SELLER
REQUIREMENT OF RULE 10B-5, 14 VILLANOVA L. REV. 499 (1969); COMMENT,
THE PURCHASER-SELLER LIMITATION TO SEC RULE 10B-5, 53 CORNELL L. REV.
684 (1968); COMMENT, THE PURCHASER-SELLER RULE:  AN ARCHAIC TOOL FOR
DETERMINING STANDING UNDER RULE 10B-5, 56 GEO. L. J. 1177 (1968).  SEE
NOTE, LIMITING THE PLAINTIFF CLASS:  RULE 10B-5 AND THE FEDERAL
SECURITIES CODE, 72 MICH. L. REV. 1398, 1412 (1974). 

ALLYN O. KREPS ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE MICHAEL D. ZIMMERMAN, G. RICHARD DOTY, AND THOMAS J.
READY. 

JAMES E. RYAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS J.J. BRANDLIN. 

DAVID FERBER ARGUED THE CAUSE FOR THE SECURITIES AND EXCHANGE
COMMISSION AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL BORK, LAWRENCE E. NERHEIM, AND RICHARD E.
NATHAN. 
..END :













EDWARDS V. HEALY, 421 U.S. 772 


       EDWARDS, GOVERNOR OF LOUISIANA, ET AL. V. HEALY ET AL.

        APPEAL FROM THE UNITED DISTRICT COURT FOR THE EASTERN

           DISTRICT OF LOUISIANA

        NO. 73 - 759.  ARGUED OCTOBER 16, 1974--DECIDED JUNE 9,

  1975; 363 F. SUPP. 1110, VACATED AND REMANDED. 


CHANGES IN STATE CONSTITUTIONAL, STATUTORY, AND OTHER APPLICABLE
RULES, RAISE QUESTION AS TO WHETHER THIS CASE HAS BECOME MOOT. 

PER CURIAM. 

THE JUDGMENT OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
LOUISIANA IS VACATED AND THE CASE IS REMANDED TO THAT COURT TO CONSIDER
WHETHER IN THE LIGHT OF RECENT CHANGES IN THE STATE CONSTITUTIONAL,
STATUTORY, AND OTHER RULES APPLICABLE TO THIS CASE THE CAUSE HAD BECOME
MOOT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THIS CASE. 

KENDALL L. VICK, ASSISTANT ATTORNEY GENERAL OF LOUISIANA, ARGUED THE
CAUSE FOR APPELLANTS.  ON THE BRIEF WERE WILLIAM J. GUSTE, JR.,
ATTORNEY GENERAL, AND WARREN E. MOULEDOUX, FIRST ASSISTANT ATTORNEY
GENERAL. 

RUTH BADER GINSBURG ARGUED THE CAUSE FOR APPELLEES.  WITH HER ON THE
BRIEF WAS MELVIN L. WULF. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY CHESTERFIELD
SMITH AND MARGUERITE REWALT FOR THE AMERICAN BAR ASSN., AND BY NANCY
STEARNS FOR THE CENTER FOR CONSTITUTIONAL RIGHTS. 
..END :















CONNOR V. WALLER, 421 U.S. 656 


       CONNOR ET AL. V. WALLER, GOVERNOR OF MISSISSIPPI, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF MISSISSIPPI

     NO. 74 - 1509.  DECIDED JUNE 5, 1975; --F.SUPP.--,

         REVERSED. 


THE DISTRICT COURT'S ERROR IN HOLDING THAT CERTAIN MISSISSIPPI
STATUTES DO NOT HAVE TO BE SUBMITTED FOR CLEARANCE PURSUANT TO SEC. 5
OF THE VOTING RIGHTS ACT OF 1965, AND ITS CONSEQUENT ERROR IN DECIDING
THE CONSTITUTIONAL CHALLENGES TO THE STATUTES BASED ON RACIAL
DISCRIMINATION CLAIMS, REQUIRE REVERSAL; BUT THIS IS WITHOUT PREJUDICE
TO THAT COURT'S AUTHORITY TO ENTERTAIN AN APPROPRIATE PROCEEDING TO
REQUIRE THAT THE 1975 ELECTIONS BE CONDUCTED PURSUANT TO A COURT
ORDERED REAPPORTIONMENT PLAN. 

PER CURIAM. 

THIS IS AN APPEAL FROM A JUDGMENT ENTERED MAY 22, 1975, BY A THREE
JUDGE COURT FOR THE SOURTHERN DISTRICT OF MISSISSIPPI.  THE JUDGMENT IS
REVERSED.  THE DISTRICT COURT ERRED IN HOLDING THAT HOUSE BILL NO. 1290
AND SENATE BILL NO. 2976, MISSISSIPPI LAWS, 1975, REGULAR SESSION, ARE
NOT LEGISLATIVE ENACTMENTS REQUIRED TO BE SUBMITTED PURSUANT TO SEC. 5
OF THE VOTING RIGHTS ACT OF 1965, 79 STAT. 439, AS AMENDED, 84 STAT.
315, 42 U.S.C. SEC. 1973C.  GEORGIA V. UNITED STATES, 411 U.S. 526
(1973).  THOSE ACTS ARE NOT NOW AND WILL NOT BE EFFECTIVE AS LAWS UNTIL
AND UNLESS CLEARED PURSUANT TO SEC. 5.  THE DISTRICT COURT ACCORDINGLY
ALSO ERRED IN DECIDING THE CONSTITUTIONAL CHALLENGES TO THE ACTS BASED
UPON CLAIMS OF RACIAL DISCRIMINATION.  PERKINS V. MATTHEWS, 400 U.S.
379 (1971); ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544 (1969). 

THIS REVERSAL IS, HOWEVER, WITHOUT PREJUDICE TO THE AUTHORITY OF THE
DISTRICT COURT, IF IT SHOULD BECOME APPROPRIATE, TO ENTERTAIN A
PROCEEDING TO REQUIRE THE CONDUCT OF THE 1975 ELECTIONS PURSUANT TO A
COURT-ORDERED REAPPORTIONMENT PLAN THAT COMPLIES WITH THIS COURT'S
DECISIONS IN MAHAN V. HOWELL, 410 U.S. 315 (1973); CONNOR V. WILLIAMS,
404 U.S. 549 (1972); AND CHAPMAN V. MEIER, 420 U.S. 1 (1975). 

                                  REVERSED. 

MR. JUSTICE MARSHALL, CONCURRING. 

I AM OF THE OPINION THAT THE PER CURIAM IN THIS CASE SHOULD BE MADE
CLEAR BY ADDING A PARAGRAPH SIMILAR TO THE CONCLUDING PARAGRAPH OF OUR
OPINION IN GEORGIA V. UNITED STATES, 411 U.S. 526, 541 (1973). 
THEREFORE, I WOULD ADD THE FOLLOWING PARAGRAPH IN THIS CASE: 

     " THE CASE IS REMANDED WITH INSTRUCTIONS THAT ANY FUTURE

ELECTIONS IN MISSISSIPPI UNDER HOUSE BILL NO. 1290 AND SENATE

  BILL NO. 2976, MISSISSIPPI LAWS, 1975, REGULAR SESSION, BE

  ENJOINED UNLESS AND UNTIL THE STATE, PURSUANT TO SEC. 5 OF THE

  VOTING RIGHTS ACT OF 1965, TENDERS TO THE ATTORNEY GENERAL A PLAN

  TO WHICH HE DOES NOT OBJECT, OR OBTAINS A FAVORABLE DECLARATORY

  JUDGMENT FROM THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA." 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS APPEAL. 
..END :





DUNLOP V. BACHOWSKI, 421 U.S. 560 


       DUNLOP, SECRETARY OF LABOR V. BACHOWSKI ET AL.

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 74 - 466.  ARGUED APRIL 21, 1975--DECIDED JUNE 2,

        1975; 502 F.2D 79, REVERSED AND REMANDED. 


    AFTER BEING DEFEATED FOR OFFICE BY THE INCUMBENT IN A UNION

  ELECTION, AND AFTER EXHAUSTING HIS UNION REMEDIES, RESPONDENT

  CANDIDATE (HEREAFTER RESPONDENT) FILED A COMPLAINT WITH

  PETITIONER, THE SECRETARY OF LABOR, ALLEGING VIOLATIONS OF SEC.

  401 OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959

  (L MRDA) AND THUS INVOKING SEC. 402(B) OF THE ACT, WHICH REQUIRES

  THE SECRETARY TO INVESTIGATE THE COMPLAINT AND DECIDE WHETHER TO

  BRING A CIVIL ACTION TO SET ASIDE THE ELECTION.  THE SECRETARY,

UPON INVESTIGATION, DECIDED THAT SUCH AN ACTION WAS NOT WARRANTED

  AND SO ADVISED RESPONDENT, WHO THEN FILED AN ACTION TO HAVE THE

  SECRETARY'S DECISION DECLARED ARBITRARY AND CAPRICIOUS AND TO

  ORDER HIM TO FILE SUIT TO SET ASIDE THE ELECTION.  THE DISTRICT

  COURT DISMISSED THE ACTION ON THE GROUND THAT IT LACKED

  "AUTHORITY" TO AFFORD THE RELIEF SOUGHT.  THE COURT OF APPEALS

  REVERSED AND REMANDED, HOLDING THAT THE DISTRICT COURT HAD

  JURISDICTION OF THE ACTION UNDER 28 U.S.C. SEC. 1337 AS A CASE

  ARISING UNDER AN ACT OF CONGRESS REGULATING COMMERCE (THE LMRDA);

  THAT THE ADMINISTRATIVE PROCEDURE ACT (APA), 5 U.S.C. SECS. 702,

  704, SUBJECTED THE SECRETARY'S DECISION TO JUDICIAL REVIEW AS

  "FINAL AGENCY ACTION FOR WHICH THERE IS NO OTHER ADEQUATE REMEDY

  IN A COURT"; THAT HIS DECISION WAS NOT AGENCY ACTION PURSUANT TO

  "STATUTES (THAT) PRECLUDE JUDICIAL REVIEW; OR . . . AGENCY ACTION

  (THAT) IS COMMITTED TO AGENCY DISCRETION BY LAW," EXCEPTED BY 5

  U.S.C. SEC. 701(A) FROM JUDICIAL REVIEW; AND THAT THE SCOPE OF

  JUDICIAL REVIEW--GOVERNED BY 5 U.S.C. SEC. 706(2)(A) "TO ENSURE

  THAT THE SECRETARY'S ACTIONS ARE NOT ARBITRARY, CAPRICIOUS, OR AN

  ABUSE OF DISCRETION"--, ENTITLED RESPONDENT "TO A SUFFICIENTLY

  SPECIFIC STATEMENT OF THE FACTORS UPON WHICH THE SECRETARY RELIED

  IN REACHING HIS DECISION . . . SO THAT (RESPONDENT) MAY HAVE

  INFORMATION CONCERNING THE ALLEGATIONS CONTAINED IN HIS

  COMPLAINT."  HELD:  WHILE 28 U.S.C. SEC. 1337 CONFERS
JURISDICTION

  UPON THE DISTRICT COURT TO ENTERTAIN RESPONDENT'S SUIT, AND THE

  SECRETARY'S DECISION AGAINST SUIT IS NOT EXPECTED FROM JUDICIAL

  REVIEW BY 5 U.S.C. SEC. 701(A), BUT BY VIRTUE OF SECS. 702 AND

704 IS REVIEWABLE UNDER THE STANDARD SPECIFIED IN (2)(A), THE

  COURT OF APPEALS ERRED INSOFAR AS IT CONSTRUED SEC. 706 (2)(A) TO

  AUTHORIZE THE DISTRICT COURT TO ALLOW RESPONDENT A TRIAL-TYPE

  INQUIRY INTO THE FACTUAL BASES FOR THE SECRETARY'S DECISION.  PP.

  566 - 577. 

     (A) ABSENT AN EXPRESS PROHIBITION IN THE LMRDA AGAINST
JUDICIAL

REVIEW OF THE SECRETARY'S DECISION, THE SECRETARY BEARS THE HEAVY

  BURDEN OF OVERCOMING THE STRONG PRESUMPTION THAT CONGRESS DID NOT

  MEAN TO PROHIBIT ALL JUDICIAL REVIEW OF HIS DECISION, A

  PRESUMPTION THAT THE SECRETARY FAILED TO OVERCOME IN THIS CASE. 

  P. 567. 

     (B) HOWEVER, A CONGRESSIONAL PURPOSE NARROWLY TO LIMIT THE

  SCOPE OF JUDICIAL REVIEW OF THE SECRETARY'S DECISION MUST BE

  INFERRED IN ORDER TO FULFILL THE STATUTORY OBJECTIVES.  P. 568. 

   (C) SINCE THE LMRDA RELIES UPON THE SECRETARY'S KNOWLEDGE AND

  DISCRETION IN DETERMINING BOTH THE PROBABLE VIOLATION AND THE

  PROBABLE EFFECT OF A VIOLATION ON THE ELECTION'S OUTCOME, THE

  REVIEWING COURT IS NOT AUTHORIZED TO SUBSTITUTE ITS JUDGMENT FOR

  THE SECRETARY'S DECISION NOT TO BRINGSUIT, BUT TO ENABLE THE

  COURT INTELLIGENTLY TO REVIEW THE SECRETARY'S DETERMINATION, THE

  SECRETARY MUST PROVIDE THE COURT AND THE COMPLAINING UNION MEMBER

  WITH A STATEMENT OF THE SUPPORTINGREASONS.  PP. 568 - 572. 

(D) THE REVIEWING COURT SHOULD CONFINE ITSELF TO EXAMINING THE

  REASONS STATEMENT AND DETERMINING WHETHER THE STATEMENT, WITHOUT

  MORE, SHOWS THAT THE SECRETARY'S DECISION IS SO IRRATIONAL AS TO

  BE ARBITRARY AND CAPRICIOUS, AND THE COURT'S REVIEW MAY NOT

  EXTEND TO AN ADVERSARY TRIAL OF A COMPLAINING UNION MEMBER'S

  CHALLENGES TO THE FACTUAL BASES FOR THE SECRETARY'S DECISION. 

  PP. 572 - 574. 

  (E) IF THE DISTRICT COURT DETERMINES THAT THE SECRETARY'S

  REASONS STATEMENT ADEQUATELY DEMONSTRATES THAT HIS DECISION

  AGAINST SUIT IS NOT CONTRARY TO LAW, THE COMPLAINING UNION

  MEMBER'S SUIT FAILS AND SHOULD BE DISMISSED, WHEREAS IF THE

  DISTRICT COURT DETERMINES THAT THE STATEMENT ON ITS FACE COMPELS

  THE CONCLUSION THAT THE SECRETARY'S DECISION NOT TO SUE IS SO

  IRRATIONAL AS TO BE ARBITRARY AND CAPRICIOUS, IT IS ASSUMED THAT

  THE SECRETARY WOULD PRECEED APPROPRIATELY WITHOUT THE COERCION OF

  THE COURT ORDER.  PP. 574 - 576. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND DOUGLAS, STEWART, WHITE, MARSHALL, BLACKMUN,

  AND POWELL, JJ., JOINED.  BURGER, C.J., FILED A CONCURRING

  OPINION, POST, P. 590.  REHNQUIST, J., FILED AN OPINION

  CONCURRING IN THE RESULT IN PART AND DISSENTING IN PART, POST, P.

  591. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

ON FEBRUARY 13, 1973, THE UNITED STEELWORKERS OF AMERICA (USWA) HELD
DISTRICT OFFICER ELECTIONS IN ITS SEVERAL DISTRICTS.  RESPONDENT
BACHWOSKI (HEREINAFTER RESPONDENT) WAS DEFEATED BY THE INCUMBENT IN THE
ELECTION FOR THAT OFFICE IN DISTRICT 20.  /1/ AFTER EXHAUSTING HIS
REMEDIES WITHIN USWA, RESPONDENT FILED A TIMELY COMPLAINT WITH
PETITIONER, SECRETARY OF LABOR, ALLEGING VIOLATIONS OF SEC. 401 OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (LMRDA), 73 STAT.
532, 29 U.S.C. SEC. 481, THUS INVOKING 29 U.S.C. SECS. 482(A), (B),
WHICH REQUIRE THAT THE SECRETARY INVESTIGATE THE COMPLAINT AND DECIDE
WHETHER TO BRING A CIVIL ACTION TO SET ASIDE THE ELECTION.  /2/
SIMILAR COMPLAINTS WERE FILED RESPECTING FIVE OTHER DISTRICT
ELECTIONS.  AFTER COMPLETING HIS INVESTIGATIONS, THE SECRETARY FILED
CIVIL ACTIONS TO SET ASIDE THE ELECTIONS IN ONLY TWO DISTRICTS.  WITH
RESPECT TO THE ELECTION IN DISTRICT 20, HE ADVISED RESPONDENT BY LETTER
DATED NOVEMBER 7, 1973, THAT "(BASED ON THE INVESTIGATIVE FINDINGS, IT
HAS BEEN DETERMINED . . . THAT CIVIL ACTION TO SET ASIDE THE CHALLENGED
ELECTION IS NOT WARRANTED." 

ON NOVEMBER 7, 1973, RESPONDENT FILED THIS ACTION AGAINST THE
SECRETARY AND USWA IN THE DISTRICT COURT FOR THE WESTERN DISTRICT OF
PENNSYLVANIA.  /3/ THE COMPLAINT ASKED THAT, AMONG OTHER RELIEF, "THE
COURT DECLARE THE ACTIONS OF THE DEFENDANT SECRETARY TO BE ARBITRARY
AND CAPRICIOUS AND ORDER HIM TO FILE SUIT TO SET ASIDE THE AFORESAID
ELECTION."  THE DISTRICT COURT CONDUCTED A HEARING ON NOVEMBER 8, AND
AFTER ARGUMENT ON THE QUESTION OF REVIEWABILITY OF THE SECRETARY'S
DECISION, CONCLUDED THAT THE COURT LACKED "AUTHORITY" TO FIND THAT THE
ACTION WAS CAPRICIOUS AND TO ORDER HIM TO FILE SUIT.  CIVIL ACTION NO.
73 - 0954, WD PA., DOC. 9, P. 27.  THE HEARING WAS FOLLOWED BY AN ORDER
DATED NOVEMBER12, DISMISSING THE SUIT.  /4/ THE COURT OF APPEALS FOR
THE THIRD CIRCUIT REVERSED, 502 F.2D 79 (1974). 

THE COURT OF APPEALS HELD, FIRST, THAT THE DISTRICT COURT HAD
JURISDICTION OF RESPONDENT'S SUIT UNDER 28 U.S.C. SEC. 1337 AS A CASE
ARISING UNDER AN ACT OF CONGRESS REGULATING COMMERCE, THE LMRDA, 502
F.2D, AT 82 - 83; SECOND, THAT THE ADMINISTRATIVE PROCEDURE ACT, 5
U.S.C. SECS. 702 AND 704, SUBJECTED THE SECRETARY'S DECISION TO
JUDICIAL REVIEW AS "FINAL AGENCY ACTION FOR WHICH THERE IS NO OTHER
ADEQUATE REMEDY IN A COURT," SEC. 704, AND THAT HIS DECISION WAS NOT,
AS THE SECRETARY MAINTAINED, AGENCY ACTION PURSUANT TO "(1) STATUTES
(THAT) PRECLUDE JUDICIAL REVIEW; OR (2) AGENCY ACTION (THAT) IS
COMMITTED TO AGENCY DISCRETION BY LAW," EXCEPTED BY SEC. 701(A) FROM
JUDICIAL REVIEW, 502 F.2D, AT 83 - 88, /5/ AND, THIRD, THAT THE SCOPE
OF JUDICIAL REVIEW--GOVERNED BY SEC. 706(2)(A), "TO ENSURE THAT THE
SECRETARY'S ACTIONS ARE NOT ARBITRARY, CAPRICIOUS, OR AN ABUSE OF
DISCRETION," 502 F.2D, AT 90--ENTITLED RESPONDENT, WHO SOUGHT "TO
CHALLENGE THE FACTUAL BASIS FOR (THE SECRETARY'S) CONCLUSION EITHER
THAT NO VIOLATIONS OCCURRED OR THAT THEY DID NOT AFFECT THE OUTCOME OF
THE ELECTION," ID., AT 89, "TO A SUFFICIENTLY SPECIFIC STATEMENT OF THE
FACTORS UPON WHICH THE SECRETARY RELIED IN REACHING HIS DECISION . . .
SO THAT (RESPONDENT) MAY HAVE INFORMATION CONCERNING THE ALLEGATIONS
CONTAINED IN HIS COMPLAINT."  ID., AT 90.  /6/ WE GRANTED CERTIORARI
SUB NOM.  BRENNAN V. BACHOWSKI, 419 U.S. 1068 (1974). 

WE AGREE THAT 28 U.S.C. SEC. 1337 CONFERS JURISDICTION UPON THE
DISTRICT COURT TO ENTERTAIN RESPONDENT'S SUIT, AND THAT THE SECRETARY'S
DECISION NOT TO SUE IS NOT EXCEPTED FROM JUDICIAL REVIEW BY 5 U.S.C.
SEC. 701(A); RATHER, SECS. 702 AND 704 SUBJECT THE SECRETARY'S DECISION
TO JUDICIAL REVIEW UNDER THE STANDARD SPECIFIED IN SEC. 706(2) (A).  WE
HOLD, HOWEVER, THAT THE COURT OF APPEALS ERRED INSOFAR AS ITS OPINION
CONSTRUES SEC. 706(2)(A) TO AUTHORIZE A TRIAL-TYPE INQUIRY INTO THE
FACTUAL BASES OF THE SECRETARY'S CONCLUSION THAT NO VIOLATIONS OCCURRED
AFFECTING THE OUTCOME OF THE ELECTION.  WE ACCORDINGLY REVERSE THE
JUDGMENT OF THE COURT OF APPEALS INSOFAR AS IT DIRECTS FURTHER
PROCEEDINGS ON REMAND CONSISTENTWITH THE OPINION OF THAT COURT, AND
DIRECT THE ENTRY OF A NEW JUDGMENT ORDERING THAT THE PROCEEDINGS ON
REMAND BE CONSISTENT WITH THIS OPINION OF THIS COURT. 

        I 

THE LMRDA CONTAINS NO PROVISIONTHAT EXPLICITLY PROHIBITS JUDICIAL
REVIEW OF THE DECISION OF THE SECRETARY NOT TO BRING A CIVIL ACTION
AGAINST THE UNION TO SET ASIDE AN ALLEGEDLY INVALID ELECTION.  THERE IS
NO SUCH PROHIBITION IN 29 U.S.C. SEC. 483.  THAT SECTION STATES THAT
"(THE REMEDY PROVIDED BY THIS SUBCHAPTER FOR CHALLENGING AN ELECTION
ALREADY CONDUCTED SHALL BE EXCLUSIVE."  CERTAIN LMRDA PROVISIONS
CONCERNING PRE-ELECTION CONDUCT, 29 U.S.C. SECS. 411 - 413 AND 481(C),
ARE ENFORCEABLE IN SUITS BROUGHT BY INDIVIDUAL UNION MEMBERS. 
PROVISIONS CONCERNING THE CONDUCT OF THE ELECTION ITSELF, HOWEVER, MAY
BE ENFORCED ONLY ACCORDING TO THE POST-ELECTION PROCEDURES SPECIFIED IN
29 U.S.C. SEC. 482.  SECTION 483 IS THUS NOT A PROHIBITION AGAINST
JUDICIAL REVIEW BUT SIMPLY UNDERSCORES THE EXCLUSIVITY OF THE SEC. 482
PROCEDURES IN POST-ELECTION CASES. 

IN THE ABSENCE OF AN EXPRESS PROHIBITION IN THE LMRDA, THE
SECRETARY, THEREFORE, BEARS THE HEAVY BURDEN OF OVERCOMING THE STRONG
PRESUMPTION THAT CONGRESS DID NOT MEAN TO PROHIBIT ALL JUDICIAL REVIEW
OF HIS DECISION.  " THE QUESTION IS PHRASED IN TERMS OF 'PROHIBITION'
RATHER THAN 'AUTHORIZATION' BECAUSE A SURVEY OF OUR CASES SHOWS THAT
JUDICIAL REVIEW OF A FINAL AGENCY ACTION BY AN AGGRIEVED PERSON WILL
NOT BE CUT OFF UNLESS THERE IS PERSUASIVE REASON TO BELIEVE THAT SUCH
WAS THE PURPOSE OF CONGRESS."  ABBOTT LABORATORIES V. GARDNER, 387 U.S.
136, 140 (1967).  "(ONLY UPON A SHOWING OF 'CLEAR AND CONVINCING
EVIDENCE' OF A CONTRARY LEGISLATIVE INTENT SHOULD THE COURTS RESTRICT
ACCESS TO JUDICIAL REVIEW."  ID., AT 141.  SEE ALSO RUSK V. CORT, 369
U.S. 367, 379 - 380 (1962); CITIZENS TO PRESERVE OVERTON PARK V. VOLPE,
401 U.S. 402, 410 (1971). 

THE SECRETARY URGES THAT THE STRUCTURE OF THE STATUTORY SCHEME, ITS
OBJECTIVES, ITS LEGISLATIVE HISTORY, THE NATURE OF THE ADMINISTRATIVE
ACTION INVOLVED, AND THE CONDITIONS SPELLED OUT WITH RESPECT THERETO,
COMBINE TO EVINCE A CONGRESSIONAL MEANING TO PROHIBIT JUDICIAL REVIEW
OF HIS DECISION.  /7/ WE HAVE EXAMINED THE MATERIALS THE SECRETARY
RELIES UPON.  THEY DO NOT REVEAL TO US ANY CONGRESSIONAL PURPOSE TO
PROHIBIT JUDICIAL REVIEW.  INDEED, THERE IS NOT EVEN THE SLIGHTEST
INTIMATION THAT CONGRESS GAVE THOUGHT TO THE MATTER OF THE PRECLUSION
OF JUDICIAL REVIEW.  " THE ONLY REASONABLE INFERENCE IS THAT THE
POSSIBLITY DID NOT OCCUR TO THE CONGRESS."  WIRTZ V. BOTTLE BLOWERS
ASSN., 389 U.S. 463, 468 (1968). 

WE THEREFORE REJECT THE SECRETARY'S ARGUMENT AS WITHOUT MERIT.  HE
HAS FAILED TO MAKE A SHOWING OF "CLEAR AND CONVINCING EVIDENCE" THAT
CONGRESS MEANT TO PROHIBIT ALL JUDICIAL REVIEW OF HIS DECISION.  IN
THAT CIRCUMSTANCE, COURTS "ARE NECESSARILY (NOT) WITHOUT POWER OR
JURISDICTION . . . IF IT SHOULD CLEARLY APPEAR THAT THE SECRETARY HAS
ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER BY IGNORING THE MANDATORY
DUTY HE OWES PLAINTIFFS UNDER THE POWERS GRANTED BY THE CONGRESS. 
LEEDOM V. KYNE, 358 U.S. 184 . . . (1958)."  DE VITO V. SHULTZ, 300 F.
SUPP. 381, 382 (DC 1969) (DE VITO I).  BUT SEE RAVASCHIERI V .SHULTZ,
75 L.R.R.M. 2772 (SDNY 1970); MC ARTHY V. WIRTZ, 65 L.R.R.M. 2411 (ED
MO. 1967); KATRINIC V. WIRTZ, 62 L.R.R.M. 2557 (DC 1966).  OUR
EXAMINATION OF THE RELEVANT MATERIALS PERSUADES US, HOWEVER, THAT
ALTHOUGH NO PURPOSE TO PROHIBIT ALL JUDICIAL REVIEW IS SHOWN, A
CONGRESSIONAL PURPOSE NARROWLY TO LIMIT THE SCOPE OF JUDICIAL REVIEW OF
THE SECRETARY'S DECISION CAN, AND SHOULD, BE INFERRED IN ORDER TO CARRY
OUT CONGRESSIONAL OBJECTIVES IN ENACTING THE LMRDA. 

        II 

FOUR PRIOR DECISIONS OF THE COURT CONSTRUING THE LMRDA IDENTIFY THE
CONGRESSIONAL OBJECTIVES AND THUS PUT THE SCOPE OF PERMISSIBLE JUDICIAL
REVIEW IN PERSPECTIVE.  CONGRESS "DECIDED TO UTILIZE THE SPECIAL
KNOWLEDGE AND DISCRETION OF THE SECRETARY OF LABOR IN ORDER BEST TO
SERVE THE PUBLIC INTEREST . . . (AND) DECIDED NOT TO PERMIT INDIVIDUALS
TO BLOCK OR DELAY UNION ELECTIONS BY FILING FEDERAL-COURT SUITS . . .
."  CALHOON V. HARVEY, 379 U.S. 134, 140 (1964).  CONGRESS' CONCERN WAS
"TO SETTLE AS QUICKLY AS PRACTICABLE THE CLOUD ON THE INCUMBENTS'
TITLES TO OFFICE," WIRTZ V. BOTTLE BLOWERS ASSN., SUPRA, AT 468 N. 7,
AND IN "DELIBERATELY (GIVING) EXCLUSIVE ENFORCEMENT AUTHORITY TO THE
SECRETARY . . . EMPHATICALLY ASSERTED A VITAL PUBLIC INTEREST IN
ASSURING FREE AND DEMOCRATIC UNION ELECTIONS THAT TRANSCENDS THE
NARROWER INTEREST OF COMPLAINING UNION MEMBER.  . . ."  ID., AT 473 -
475.  "(IT IS MOST IMPROBABLE THAT CONGRESS DELIBERATELY SETTLED
EXCLUSIVE ENFORCEMENT JURISDICTION ON THE SECRETARY AND GRANTED HIM
BROAD INVESTIGATIVE POWERS TO DISCHARGE HIS RESPONSIBILITIES, YET
INTENDED THE SHAPE OF THE ENFORCEMENT ACTION TO BE IMMUTABLY FIXED BY
THE ARTFULNESS OF A LAYMAN'S COMPLAINT . . . . THE EXPERTISE AND
RESOURCES OF THE LABOR DEPARTMENT WERE SURELY MEANT TO HAVE A BROADER
PLAY.  . . ."  WIRTZ V. LABORERS' UNION, 389 U.S. 477, 482 (1968).  ". 
. . CONGRESS MADE SUIT BY THE SECRETARY THE EXCLUSIVE POST-ELECTION
REMEDY FOR TWO PRINCIPAL REASONS:  (1) TO PROTECT UNIONS FROM FRIVOLOUS
LITIGATION AND UNNECESSARY JUDICIAL INTERFERENCE WITH THEIR ELECTIONS,
AND (2) TO CENTRALIZE IN A SINGLE PROCEEDING SUCH LITIGATION AS MIGHT
BE WARRANTED . . . ."  TRBOVICH V. MINE WORKERS, 404 U.S. 528, 532
(1972).  ".  . . CONGRESS INTENDED TO PREVENT MEMBERS FROM PRESSING
CLAIMS NOT THOUGHT MERITORIOUS BY THE SECRETARY, AND FROM LITIGATING IN
FORUMS OR AT TIMES DIFFERENT FROM THOSE CHOSEN BY THE SECRETARY."  ID.,
AT 536.  "(THE STATUTE GIVES THE INDIVIDUAL UNION MEMBERS CERTAIN
RIGHTS AGAINST THEIR UNION, AND 'THE SECRETARY OF LABOR IN EFFECT
BECOMES THE UNION MEMBER'S LAWYER' FOR PURPOSES OF ENFORCING THOSE
RIGHTS.  . . ."  ID., AT 538 - 539. 

BOTTLE BLOWERS ASSN. REVEALS TWO MORE CONSIDERATIONS PERTINENT TO
DETERMINATION OF THE SCOPE OF JUDICIAL REVIEW.  SECTION 482(B) LEAVES
TO THE SECRETARY, IN TERMS, ONLY THE QUESTION WHETHER HE HAS PROBABLE
CAUSE TO BELIEVE THAT A VIOLATION HAS OCCURRED, AND NOT THE QUESTION
WHETHER THE OUTCOME OF THE ELECTION WAS PROBABLY AFFECTED BY THE
VIOLATION.  BOTTLE BLOWERS CONSTRUED SEC. 482(B), HOWEVER, AS
CONFERRING UPON THE SECRETARY DISCRETION TO DETERMINE BOTH THE PROBABLE
VIOLATIONAND THE PROBABLE EFFECT.  "(THE SECRETARY MAY NOT INITIATE AN
ACTION UNTIL HIS OWN INVESTIGATION CONFIRMS THAT A VIOLATION . . .
PROBABLY INFECTED THE CHALLENGED ELECTION."  389 U.S., AT 472.  SEE
ALSO SCHONFELD V. WIRTZ, 258 F. SUPP. 705, 707 - 708 (SDNY 1966). 

IN ADDITION, IN REJECTING THE ARGUMENT THAT THE UNLAWFULNESS
INFECTING A CHALLENGED ELECTION COULD BE WASHED AWAY BY AN INTERVENING
UNSUPERVISED UNION ELECTION, THE COURT STATED, 389 U.S., AT 474: 

".  . . CONGRESS' EVIDENT CONCLUSION THAT ONLY A SUPERVISED ELECTION
COULD OFFER ASSURANCE THAT THE OFFICERS WHO ACHIEVED OFFICE AS
BENEFICIARIES OF VIOLATIONS OF THE ACT WOULD NOT BY SOME MEANS
PERPETUATE THEIR UNLAWFUL CONTROL IN THE SUCCEEDING ELECTION . . . WAS
REACHED IN LIGHT OF THE ABUSES SURFACED BY THE EXTENSIVE CONGRESSIONAL
INQUIRY SHOWING HOW INCUMBENTS' USE OF THEIR INHERENT ADVANTAGE OVER
POTENTIAL RANK AND FILE CHALLENGES ESTABLISHED AND PERPETUATED DYNASTIC
CONTROL OF SOME UNIONS.  . . . THESE ABUSES WERE AMONG THE 'NUMBER OF
INSTANCES OF BREACH OF TRUST . . . (AND) DISREGARD OF THE RIGHTS OF
INDIVIDUAL EMPLOYEES . . .'  UPON WHICH CONGRESS RESTED ITS DECISION
THAT THE LEGISLATION WAS REQUIRED IN THE PUBLIC INTEREST.  /9/ 

TWO CONCLUSIONS FOLLOW FROM THIS SURVEY OF OUR DECISIONS:  (1) SINCE
THE STATUTE RELIES UPON THE SPECIAL KNOWLEDGE AND DISCRETION OF THE
SECRETARY FOR THE DETERMINATION OF BOTH THE PORBABLE VIOLATION AND THE
PROBABLE EFFECT, CLEARLY THE REVIEWING COURT IS NOT AUTHORIZED TO
SUBSTITUTE ITS JUDGMENT FOR THE DECISIONOF THE SECRETARY NOT TO BRING
SUIT; (2) THEREFORE TO ENABLE THE REVIEWING COURT INTELLIGENTLY TO
REVIEW THE SECRETARY'S DETERMINATION, THE SECRETARY MUST PROVIDE THE
COURT AND THE COMPLAINING WITNESS WITH COPIES OF A STATEMENT OF REASONS
SUPPORTING HIS DETERMINATION.  "(WHEN ACTION IS TAKEN BY (THE
SECRETARY) IT MUST BE SUCH AS TO ENABLE A REVIEWING COURT TO DETERMINE
WITH SOME MEASURE OF CONFIDENCE WHETHER OR NOT THE DISCRETION, WHICH
STILL REMAINS IN THE SECRETARY, HAS BEEN EXERCISED IN A MANNER THAT IS
NEITHER ARBITRARY NOR CAPRICIOUS.  . . . (IT IS NECESSARY FOR (HIM) TO
DELINEATE AND MAKE EXPLICIT THE BASIS UPON WHICH DISCRETIONARY ACTION
IS TAKEN, PARTICULARLY IN A CASE SUCH AS THIS WHERE THE DECISION TAKEN
CONSISTS OF A FAILURE TO ACT AFTER THE FINDING OF UNION ELECTION
IRREGULARITIES."  DE VITO I, 300 F.SUPP., AT 383; SEE ALSO VALENTA V.
BRENNAN, NO. 74 - 11 (ND OHIO 1974). 

MOREOVER, A STATEMENT OF REASONS SERVES PURPOSES OTHER THAN JUDICIAL
REVIEW.  SINCE THE SECRETARY'S ROLE AS LAWYER FOR THE COMPLAINING UNION
MEMBER DOES NOT INCLUDE THE DUTY TO INDULGE A CLIENT'S USUAL
PREROGATIVE TO DIRECT HIS LAWYER TO FILE SUIT, WE MAY REASONABLY INFER
THAT CONGRESS INTENDED THAT THE SECRETARY SUPPLY THE MEMBER WITH A
REASONED STATEMENT WHY HE DETERMINED NOT TO PROCEED.  "(AS A MATTER OF
LAW . . . THE SECRETARY IS NOT REQUIRED TO SUE TO SET ASIDE THE
ELECTION WHENEVER THE PROOFS BEFORE HIM SUGGEST THE SUIT MIGHT BE
SUCCESSFUL.  THERE REMAINS IN HIM A DEGREE OF DISCRETION TO SELECT
CASES AND IT IS HIS SUBJECTIVE JUDGMENT AS TO THE PROBABLE OUTCOME OF
THE LITIGATION THAT MUST CONTROL."  DE VITO V. SHULTZ, 72 L.R.R.M.
2682, 2683 (DC 1969) (DE VITO II) (EMPHASIS ADDED).  BUT "(S)  URELY
CONGRESS MUST HAVE INTENDED THAT COURTS WOULD INTERCEDE SUFFICIENTLY TO
DETERMINE THAT THE PROVISIONS OF TITLE IV HAVE BEEN CARRIED OUT IN
HARMONY WITH THE IMPLEMENTATION OF OTHER PROVISIONS OF (THE LMRDA)." 
DE VITO I, SUPRA, AT 383.  FINALLY, A REASONS REQUIREMENT PROMOTES
THOUGHT BY THE SECRETARY AND COMPELS HIM TO COVER THE RELEVANT POINTS
AND ESCHEW IRRELEVANCIES, AND AS NOTED BY THE COURT OF APPEALS IN THIS
CASE, THE NEED TO ASSURE CAREFUL ADMINISTRATIVE CONSIDERATION "WOULD BE
RELEVANT EVEN IF THE SECRETARY'S DECISION WERE UNREVIEWABLE."  502
F.2D, AT 88 - 89, N. 14. 

THE NECESSITY THAT THE REVIEWING COURT REFRAIN FROM SUBSTITUTION OF
ITS JUDGMENT FOR THAT OF THE SECRETARY THUS HELPS DEFINE THE
PERMISSIBLE SCOPE OF REVIEW.  EXCEPT IN WHAT MUST BE THE RARE CASE, THE
COURT'S REVIEW SHOULD BE CONFINED TO EXAMINATION WHETHER THE STATEMENT,
WITHOUT MORE, EVINCES THAT THE SECRETARY'S DECISION IS SO IRRATIONAL AS
TO CONSTITUTE THE DECISIONARBITRARY AND CAPRICIOUS.  THUS, REVIEW MAY
NOT EXTEND TO COGNIZANCE OR TRIAL OF A COMPLAINING MEMBER'S CHALLENGES
TO THE FACTUAL BASES FOR THE SECRETARY'S CONCLUSION EITHER THAT NO
VIOLATIONS OCCURRED OR THAT THEY DID NOT AFFECT THE OUTCOME OF THE
ELECTION.  THE FULL TRAPPINGS OF ADVERSARY TRIAL-TYPE HEARINGS WOULD BE
DEFIANT OF CONGRESSIONAL OBJECTIVES NOT TO PERMIT INDIVIDUALS TO BLOCK
OR DELAY RESOLUTION OF POST-ELECTION DISPUTES, BUT RATHER "TO SETTLE AS
QUICKLY AS PRACTICABLE THE CLOUD ON THE INCUMBENTS' TITLES TO OFFICE";
AND "TO PROTECT UNIONS FROM FRIVOLOUS LITIGATION AND UNNECESSARY
INTERFERENCE WITH THEIR ELECTIONS."  " IF . . . THE COURT CONCLUDES . .
. THERE IS A RATIONAL AND DEFENSIBLE BASIS (STATED IN THE REASONS
STATEMENT) FOR (THE SECRETARY'S) DETERMINATION, THEN THAT SHOULD BE AN
END OF THIS MATTER, FOR IT IS NOT THE FUNCTION OF THE COURT TO
DETERMINE WHETHER OR NOT THE CASE SHOULDBE BROUGHT OR WHAT ITS OUTCOME
WOULD BE."  DE VITO II, SUPRA, AT 2683. 

THUS, THE SECRETARY'S LETTER OF NOVEMBER 7, 1973, MAY HAVE SUFFICED
AS A "BRIEF STATEMENT OF THE GROUNDS FOR DENIAL" FOR THE PURPOSES OF
THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. SEC. 555(E), /10/ BUT
PLAINLY IT DID NOT SUFFICE AS A STATEMENT OF REASONS REQUIRED BY THE
LMRDA.  FOR A STATEMENT OF REASONS MUST BE ADEQUATE TO ENABLE THE COURT
TO DETERMINE WHETHER THE SECRETARY'S DECISION WAS REACHED FOR AN
IMPERMISSIBLE REASON OR FOR NO REASON AT ALL.  FOR THIS ESSENTIAL
PURPOSE, ALTHOUGH DETAILED FINDINGS OF FACT ARE NOT REQUIRED, THE
STATEMENT OF REASONS SHOULD INFORM THE COURT AND THE COMPLAINING UNION
MEMBER OF BOTH THE GROUNDS OF DECISION AND THE ESSENTIAL FACTS UPON
WHICH THE SECRETARY'S INFERENCES ARE BASED. 

THE SECRETARY HIMSELF SUGGESTS THATTHE RARE CASE THAT MIGHT JUSTIFY
REVIEW BEYOND THE CONFINES OF THE REASONS STATEMENT MIGHT ARISE, FOR
EXAMPLE, "IF THE SECRETARY WERE TO DECLARE THAT HE NO LONGER WOULD
ENFORCE TITLE IV, OR OTHERWISE COMPLETELY ABROGATE HIS ENFORCEMENT
RESPONSIBILITIES . . . (OR) IF THE SECRETARY PROSECUTED COMPLAINTS IN A
CONSTITUTIONALLY DISCRIMINATORY MANNER . . . ."  BRIEF FOR PETITIONER 9
N. 3.  OTHER CASES MIGHT BE IMAGINED WHERE THE SECRETARY'S DECISION
WOULD BE "PLAINLY BEYOND THE BOUNDS OF THE ACT (OR) CLEARLY DEFIANT OF
THE ACT."  DE VITO II, 72 L.R.R.M., AT 2682.  SINCE IT INEVITABLY WOULD
BE A MATTER OF GRAVE PUBLIC CONCERN WERE A CASE TO ARISE WHERE THE
COMPLAINING MEMBER'S PROOFS SUFFICED TO REQUIRE JUDICIAL INQUIRY INTO
ALLEGATIONS OF THAT KIND, WE MAY HOPE THAT SUCH CASES WOULD BE RARE
INDEED. 

THERE REMAINS THE QUESTION OF REMEDY.  WHEN THE DISTRICT COURT
DETERMINES THAT THE SECRETARY'S STATEMENT OF REASONS ADEQUATELY
DEMONSTRATES THAT HIS DECISION NOT TO SUE IS NOT CONTRARY TO LAW, THE
COMPLAINING UNION MEMBER'S SUIT FAILS AND SHOULD BE DISMISSED.  HOWARD
V. HODGSON, 409 F.2D 1197 (CA8 1974).  WHERE THE STATEMENT INADEQUATELY
DISCLOSES HIS REASONS, THE SECRETARY MAY BE AFFORDED OPPORTUNITY TO
SUPPLEMENT HIS STATEMENT.  DE VITO I, 300 F. SUPP., AT 384; VALENTA V.
BRENNAN, SUPRA.  /11/ THE COURT MUST BE MINDFUL, HOWEVER, THAT ENDLESS
LITIGATION CONCERNING THE SUFFICIENCY OF THE WRITTEN STATEMENT IS
INCONSISTENT WITH THE STATUTE'S GOAL OF EXPEDITOUS RESOLUTION OF POST
ELECTION DISPUTES. 

THE DISTRICT COURT MAY, HOWEVER, ULTIMATELY COME TO THE CONCLUSION
THAT THE SECRETARY'S STATEMENT OF REASONS ON ITS FACE RENDERS NECESSARY
THE CONCLUSION THAT HIS DECISION NOT TO SUE IS SO IRRATIONAL AS TO
CONSTITUTE THE DECISION ARBITRARY AND CAPRICIOUS.  THERE WOULD THEN BE
PRESENTED THE QUESTION WHETHER THE DISTRICT COURT IS EMPOWERED TO ORDER
THE SECRETARY TO BRING A CIVIL SUIT AGAINST THE UNION TO SET ASIDE THE
ELECTION.  WE HAVE NO OCCASION TO ADDRESS THAT QUESTION AT THIS TIME. 
IT OBVIOUSLY PRESENTS SOME DIFFICULTY IN LIGHT OF THE STRONG EVIDENCE
THAT CONGRESS DELIBERATELY GAVE EXCLUSIVE ENFORCEMENT AUTHORITY TO THE
SECRETARY.  /12/ SEE PASSENGER CORP. V. PASSENGERS ASSN., 414 U.S.453,
465 (1974) BRENNAN, J., CONCURRING); NADAR V. SAXBE, 162 U.S.APP.  D.C.
89, 92 - 93, N. 19, 497 F.2D 676, 679 - 680, N. 19 (1974).  WE PREFER
THEREFORE AT THIS TIME TO ASSUME THAT THE SECRETARY WOULD PROCEED
APPROPRIATELY WITHOUT THE COERCION OF A COURT ORDER WHEN FINALLY
ADVISED BY THE COURTS THAT HIS DECISION WAS IN LAW ARBITRARY AND
CAPRICIOUS. 

        III 

THE OPINION OF THE COURT OF APPEALS AUTHORIZED REVIEW BEYOND THE
PERMISSIBLE LIMITS DEFINED IN THIS OPINION.  AFTER FIRST STATING THAT
"JUDICIAL REVIEW OF THE SECRETARY'S DECISION NOT TO BRING SUIT SHOULD
EXTENDAT THE VERY LEAST TO AN INQUIRY INTO HIS REASONS FOR THAT
DECISION . . .," 502 F.2D, AT 88 - 89, THE COURT NOTED:  " THE RELIEF
REQUESTED BY THE COMPLAINT . . . HOWEVER, GOES BEYOND SUCH AN INQUIRY. 
. . . (PLAINTIFF SEEKS AN OPPORTUNITY TO CHALLENGE THE FACTUAL BASIS
FOR (THE SECRETARY'S) CONCLUSION EITHER THAT NO VIOLATIONS OCCURRED OR
THAT THEY DID NOT AFFECT THE OUTCOME OF THE ELECTION."  ID., AT 89. 
THE COURT CONCLUDED THAT IN THAT CIRCUMSTANCE "PLAINTIFF IS ENTITLED TO
A SUFFICIENTLY SPECIFIC STATEMENT OF THE FACTORS UPON WHICH THE
SECRETARY RELIED IN REACHING HIS DECISION NOT TO FILE SUIT SO THAT
PLAINTIFF MAY HAVE INFORMATION CONCERNING THE ALLEGATIONS CONTAINED IN
HIS COMPLAINT."  ID., AT 90. 

BUT THE KEY ALLEGATION OF PLAINTIFF'S VERIFIED COMPLAINT IS
PARAGRAPH 18 WHICH ALLEGES:  " NOTWITHSTANDING THE FACT THAT THE
DEFENDANT SECRETARY'S INVESTIGATION HAS SUBSTANTIATED THE PLAINTIFF'S
ALLEGATIONS AND NOTWITHSTANDING THE FACT THAT THE IRREGULARITIES
CHARGED AFFECTED THE OUTCOME OF THE ELECTION THE DEFENDANT SECRETARY
REFUSES TO FILE SUIT TO SET ASIDE THE ELECTION."  /13/  THUS THE COURT
OF APPEALS' OPINION IMPERMISSIBLY AUTHORIZES THE DISTRICT COURT TO
ALLOW RESPONDENT THE FULL TRAPPINGS OF AN ADVERSARY TRIAL OF HIS
CHALLENGE TO THE FACTUAL BASIS FOR THE SECRETARY'S DECISION. 

        IV 

THE DISTRICT COURT, PURSUANT TO THE COURT OF APPEALS' ORDER OF
REMAND, ORDERED THE SECRETARY'TO FURNISH A STATEMENT OF REASONS.  THE
PETITIONER DID NOT CROSS-PETITION FROM THE ORDER, AND PETITIONER AND
USWA CONCEDED ON ORAL ARGUMENT THAT THE ORDER WAS PROPER IN THIS CASE. 
TR. OF ORAL ARG. 23 - 24, 52.  THE SECRETARY FURNISHED THE STATEMENT
AND IT IS ATTACHED AS A APPENDIX TO THIS OPINION.  ITS ADEQUACY TO
SUPPORT A CONCLUSION WHETHER THE SECRETARY'S DECISION WAS RATIONALLY
BASED OR WAS ARBITRARY AND CAPRICIOUS, IS A MATTER OF INITIAL
DETERMINATION BY THE DISTRICT COURT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED INSOFAR AS IT
DIRECTS FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THE COURT OF
APPEALS, AND THAT COURT IS DIRECTED TO ENTER A NEW ORDER THAT THE
PROCEEDINGS ON REMAND BE CONSISTENT WITH THIS OPINION OF THIS COURT. 

                             SO ORDERED. 

/1/ THE RESULT OF THE ELECTION WAS AS FOLLOWS: 

     KAY KLUZ (INCUMBENT)                  10,558 

     WALTER BACHOWSKI (RESPONDENT)          9,651 

     MORROS BRUMMETT       3,566 

/2/ TITLE 29 U.S.C. SEC. 482 PROVIDES:  "(A) FILING OF COMPLAINT;
PRESUMPTION OF VALIDITY OF CHALLENGED ELECTION. 

" A MEMBER OF A LABOR ORGANIZATION--, 

"(1) WHO HAS EXHAUSTED THE REMEDIES AVAILABLE UNDER THE CONSTITUTION
AND BYLAWS OF SUCH ORGANIZATION AND OF ANY PARENT BODY, OR 

"(2) WHO HAS INVOKEDSUCH AVAILABLE REMEDIES WITHOUT OBTAINING A
FINAL DECISION WITHIN THREE CALENDAR MONTHS AFTER THEIR INVOCATION,
"MAY FILE A COMPLAINT WITH THE SECRETARY WITHIN ONE CALENDAR MONTH
THEREAFTER ALLEGING THE VIOLATION OF ANY PROVISION OF SECTION 481 OF
THIS TITLE . . . . THE CHALLENGED ELECTION SHALL BE PRESUMED VALID
PENDING A FINAL DECISION THEREON . . . AND IN THE INTERIM THE AFFAIRS
OF THE ORGANIZATION SHALL BE CONDUCTED BY THE OFFICERS ELECTED OR IN
SUCH OTHER MANNER AS ITS CONSTITUTION AN D BYLAWS MAY PROVIDE. 

"(B) INVESTIGATION OF COMPLAINT; COMMENCEMENT OF CIVIL ACTION BY
SECRETARY; JURISDICTION; PRESERVATION OF ASSETS. 

" THE SECRETARY SHALL INVESTIGATE SUCH COMPLAINT AND, IF HE FINDS
PROBABLE CAUSE TO BELIEVE THAT A VIOLATION OF THIS SUBCHAPTER HAS
OCCURRED AND HAS NOT BEEN REMEDIED, HE SHALL, WITHIN SIXTY DAYS AFTER
THE FILING OF SUCH COMPLAINT, BRING A CIVIL ACTION AGAINST THE LABOR
ORGANIZATION AS AN ENTITY IN THE DISTRICT COURT OF THE UNITED STATES IN
WHICH SUCH LABOR ORGANIZATION MAINTAINS ITS PRINCIPAL OFFICE TO SET
ASIDE THE INVALID ELECTION, IF ANY, AND TO DIRECT THE CONDUCT OF AN
ELECTION OR HEARING AND VOTE UPON THE REMOVAL OF OFFICERS UNDER THE
SUPERVISION OF THE SECRETARY . . . ." 

/3/ THE COMPLAINT WAS FILED ON THE DATE, NOVEMBER 1, 1973, OF THE
LETTER QUOTED IN THE TEXT.  THE COMPLAINT ALLEGES THAT ON NOVEMBER 5,
RESPONDENT "RECEIVED A PHONE CALL FROM THE PITTSBURGH OFFICE OF THE
DEFENDANT SECRETARY ADVISING HIM THAT THE DEFENDANT SECRETARY HAD
DECIDED NOT TO FILE SUIT TO SET ASIDE THE CONTESTED ELECTION IN
DISTRICT 20 USWA." 

/4/ THE ORDER OF NOVEMBER 12 RECITES THAT "IT IS DETERMINED THAT
THIS COURT LACKS JURISDICTION OVER THE SUBJECT MATTER OF THIS
COMPLAINT."  IN VIEW OF OUR RESULT, IT IS IMMATERIAL WHETHER THE
DISMISSAL WAS ON THE GROUND OF LACK OF JURISDICTION OR OF
NONREVIEWABILITY, OR ON BOTH GROUNDS. 

/5/ SECTION 606 OF THE LMRDA, 29 U.S. SEC. 526, PROVIDES: 

" THE PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT SHALL BE
APPLICABLE TO . . . ANY ADJUDICATION, AUTHORIZED OR REQUIRED PURSUANT
TO THE PROVISIONS OF THIS CHAPTER." 

THE PERTINENT PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, 5
U.S.C. SECS. 701 - 706, PROVIDE:  "SEC.  701.  APPLICATION;
DEFINITIONS. 

"(A) THIS CHAPTER APPLIES . . . EXCEPT TO THE EXTENT THAT--, 

"(1) STATUTES PRECLUDE JUDICIAL REVIEW; OR 

"(2) AGENCY ACTION IS COMMITTED TO AGENCY DISCRETION BY LAW.  . .
."  "SEC.  702.  RIGHT OF REVIEW. 

" A PERSON SUFFERING LEGAL WRONG BECAUSE OF AGENCY ACTION . . . IS
ENTITLED TO JUDICIAL REVIEW THEREOF." 

        * * * * * "SEC.  704.  ACTIONS REVIEWABLE. 

" AGENCY ACTION MADE REVIEWABLE BY STATUTE AND FINAL AGENCY ACTION
FOR WHICH THERE IS NO OTHER ADEQUATE REMEDY IN A COURT ARE SUBJECT TO
JUDICIAL REVIEW.  . . ." 

 * * * * * "SEC.  706.  SCOPE OF REVIEW. 

". . . THE REVIEWING COURT SHALL--,

        * * * * * 

"(2) HOLD UNLAWFUL AND SET ASIDE AGENCY ACTION . . . FOUND TO BE--, 

"(A) ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, OR OTHERWISE NOT
IN ACCORDANCE WITH LAW . . . ." 

/6/ THE CLOSING SENTENCE OF THE OPINION AS ORIGINALLY FILED ON JULY
26, 1974, REQUIRED THE DISTRICT COURT TO PERMIT RESPONDENT "TO EXAMINE
THE DATA AND REPORTS" UPON WHICH THE SECRETARY RELIED.  THE PRESENT
VERSION WAS SUBSTITUTED BY ORDER DATED SEPTEMBER 3, 1974, WHICH ALSO
ADDED N. 17, RECITING THE COURT OF APPEALS' RECOGNITION THAT CERTAIN
DATA IN THE SECRETARY'S FILES MAY BE PRIVILEGED AND CONFIDENTIAL. 

/7/ WE AGREE WITH THE COURT OF APPEALS, FOR THE REASONS STATED IN
ITS OPINION, 502 F.2D 79, 86 - 88 (CA3 1974), THAT THERE IS NO MERIT IN
THE SECRETARY'S CONTENTION THAT HIS DECISION IS AN UNREVIEWABLE
EXERCISE OF PROSECUTORIAL DISCRETION. 

/8/ SEE S.REP.  NO 187, 86TH CONG., 1ST SESS., 7 (1959): 

IN ACTING ON THIS BILL (S. 1555) THE COMMITTEE FOLLOWED THREE
PRINCIPLES: 

"1.  THE COMMITTEE RECOGNIZED THE DESIRABILITY OF MINIMUM
INTERFERENCE BY GOVERNMENT IN THE INTERNAL AFFAIRS OF ANY PRIVATE
ORGANIZATION.  . . . (IN ESTABLISHING AND ENFORCING STATUTORY STANDARDS
GREAT CARE SHOULD BE TAKEN NOT TO UNDERMINE UNION SELF-GOVERNMENT OR
WEAKEN UNIONS IN THEIR ROLE AS COLLECTIVE-BARGAINING AGENTS. 

"2.  GIVEN THE MAINTENANCE OF MINIMUM DEMOCRATIC SAFEGUARDS AND
DETAILED ESSENTIAL INFORMATION ABOUT THE UNION, THE INDIVIDUAL MEMBERS
ARE FULLY COMPETENT TO REGULATE UNION AFFAIRS.  . . . 

"3.  REMEDIES FOR THE ABUSES SHOULD BE DIRECT.  . . . (THE
LEGISLATION SHOULD PROVIDE AN ADMINISTRATIVE OR JUDICIAL REMEDY
APPROPRIATE FOR EACH SPECIFIC PROBLEM." 

SEE ALSO IBID.: 

THE BILL REPORTED BY THE COMMITTEE, WHILE IT CARRIES OUT ALL THE
MAJOR RECOMMENDATIONS OF THE (MC CLELLAN) COMMITTEE, DOES SO WITHIN A
GENERAL PHILOSOPHY OF LEGISLATIVE RESTRAINT." 

/9/ RESPONDENT REFERRED AT ORAL ARGUMENT TO THE FOLLOWING STATEMENT
IN THE BRIEF FOR UNITED MINE WORKERS OF AMERICA AS AMICUS CURIAE 3:  "
THE STRUGGLE BY UMWA MEMBERS TO OVERTURN TYRANNY IN THEIR UNION WAS A
LONELY AND DIFFICULT ONE IN PART BECAUSE OF APATHY AND INDIFFERENCE, IF
NOT OUTRIGHT PREJUDICE AGAINST THEM, BY THE OFFICIALS WITHIN THE UNITED
STATES DEPARTMENT OF LABOR, PURPORTEDLY THE GUARDIANS OF UNION MEMBERS'
RIGHTS UNDER LMRDA.  TOO OFTEN, UNION REFORMERS HAVE FOUND THE
DEPARTMENT OF LABOR ALLIED WITH UNION INCUMBENTS AGAINST THEIR
INTERESTS."     NO ISSUE OF THIS NATURE IS RAISED BY RESPONDENT'S
COMPLAINT IN THIS CASE. 

/10/ TITLE 5 U.S.C. SEC. 555(E) PROVIDES: 

" PROMPT NOTIVE SHALL BE GIVEN OF THE DENIAL IN WHOLE OR IN PART OF
A WRITTEN APPLICATION, PETITION, OR OTHER REQUEST OF AN INTERESTED
PERSON MADE IN CONNECTION WITH ANY AGENCY PROCEEDINGS.  EXCEPT IN
AFFIRMING A PRIOR DENIAL OR WHEN THE DENIAL IS SELF-EXPLANATORY, THE
NOTICE SHALL BE ACCOMPANIED BY A BRIEF STATEMENT OF THE GROUNDS FOR
DENIAL." 

/11/ JUDGE GESELL OF THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FASHIONED AN ACCEPTABLE PROCEDURE IN DE VITO I, 300 F.SUPP.  381
(1969).  AGGRIEVED UNION MEMBERS COMPLAINED OF IRREGULARITIES IN THE
ELECTION OF REGULAR OFFICERS OF THE INTERNATIONAL UNION.  THEY ALSO
COMPLAINED OF IRREGULARITIES IN THE ELECTION OF AN INTERNATIONAL
PRESIDENT EMERITUS.  THE OFFICE OF THE SECRETARY OF LABOR REFUSED TO
BRING SUIT TO SET ASIDE EITHER ELECTION, SUPPLYING SEPARATE STATEMENTS
OF REASONS IN THE CASES.  JUDGE GESELL DETERMINED THAT THE STATEMENT
RESPECTING THE REGULAR ELECTION OF OFFICERS WAS INADEQUATE, BUT THAT
THE STATEMENT RESPECTING THE ELECTION OF A PRESIDENT EMERITUS WAS
SUFFICIENT.  HE THEREFOREORDERED THE SECRETARY TO REOPEN CONSIDERATION
OF THE FORMER COMPLAINT AND TO SUBMIT "A FULLER STATEMENT OF REASONS
AND EXPLANATION," IF ON RECONSIDERATION THE SECRETARY REMAINED
DETERMINED NOT TO BRING SUIT.  THE SECRETARY'S MOTION TO DISMISS AND
FOR SUMMARY JUDGMENT WAS DENIED WITHOUT PREJUDICE TO A FURTHER
SUBMISSION OF REASONS ON THAT ASPECT OF THE CASE BUT WAS GRANTED AS
RESPECTS THE ELECTION OF THE PRESIDENT EMERITUS.  LATER, FOLLOWING THE
SECRETARY'S RECONSIDERATION OF THE ELECTION OF THE REGULAR OFFICERS,AND
HIS ADHERENCE TO HIS DETERMINATION NOT TO FILE SUIT, JUDGE GESELL
CONDUCTED ANOTHER HEARING.  DE VITO II, 72 L.R.R.M. 2682 (DC 1969). 
JUDGE GESELL CONCLUDED ON THIS OCCASION THAT THE SECRETARY "SATISFIED
THE COURT THT THERE IS A RATIONAL BASIS FOR HIS NOT PROCEEDING" AND
GRANTED THE SECRETARY'S MOTION TO DISMISS. 

/12/ THE USWA ARGUES THAT ARTS. II AND III OF THE CONSTITUTION "DO
NOT COUNTENANCE A COURT ORDER REQUIRING THE EXECUTIVE BRANCH, AGAINST
ITS WISHES, TO INSTITUTE A LAWSUIT IN FEDERAL COURT."  "(A) JUDICIAL
DIRECTION THAT SUCH AS ACTION BE BROUGHT WOULD VIOLATE THE SEPARATION
OF POWERS . . . (AND) BECUASE THE SECRETARY AGREES WITH THE UNION THAT
TITLE IV DOES NOT REQUIRE A NEW ELECTION, THE LAWSUIT WOULD BE ONE
LACKING THE REQUISITE ADVERSITY OF INTEREST TO CONSTITUTE A 'CASE' OR
'CONTROVERSY' AS REQUIRED BY ARTICLE III."  SINCE WE DO NOT CONSIDER AT
THIS TIME THE QUESTION OF THE COURT'S POWER TO ORDER THE SECRETARY TO
FILE SUIT, WE NEED NOT ADDRESS THOSE CONTENTIONS. 

/13/ THE SECRETARY CONCEDES THAT, BECAUSE THE DISTRICT COURT DISMISSED
RESPONDENT'S COMPLAINT FOR WANT TO "JURISDICTION" ALL OF THE FACTUAL
ALLEGATIONS OF THIS PARAGRAPH MUST BE ACCEPTED AS TRUE.  BRIEF FOR
PETITIONER 4 N. 2.  THE ALLEGATION RECITES, HOWEVER, ONLY THAT THE "
SECRETARY'S INVESTIGATION HAS SUBSTANTIATED THE PLAINTIFF'S
ALLEGATIONS," AND NOT ALSO THAT THE SECRETARY HAS FOUND THAT THE
IRREGULARITIES CHARGED AFFECTED THE OUTCOME OF THE ELECTION.  ON THE
CONTRARY, THE REASONS STATEMENT ATTACHED AS THE APPENDIX TO THIS
OPINION DISCLOSES THAT THE SECRETARY FOUND THAT THE IRREGULARITIES DID
NOT AFFECT THE CONDUCT OF THE ELECTION. 

        APPENDIX TO OPINION OF THE COURT

        IN THE UNITED STATES DISTRICT COURT FOR THE

    WESTERN DISTRICT OF PENNSYLVANIA

        CIVIL ACTION NO. 73 - 0954

        WALTER BACHOWSKI, PLAINTIFF V. PETER J. BRENNAN, SECRETARY

           OF LABOR, UNITED STATES DEPARTMENT OF LABOR, AND UNITED

           STEELWORKERS OF AMERICA, AFL- CIO- CLC, DEFENDANTS

        STATEMENT OF THE SECRETARY OF LABOR 

ON NOVEMBER 12, 1973, THIS COURT, UPON ORAL ARGUMENT, DISMISSED THE
COMPLAINT FILED HEREIN BY THE PLAINTIFF, AND FURTHER DENIED PLAINTIFF'S
MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION. 
ON APPEAL, THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, IN
A JUDGMENT ENTERED ON JULY 26, 1974, ORDERED THAT THE AFOREMENTIONED
JUDGMENT OF THE DISTRICT COURT BE VACATED AND THE CAUSE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THE THIRD CIRCUIT
FILED ON JULY 26, 1974, AS AMENDED SEPTEMBER 3, 1974. 

ON REMAND, THIS COURT ORDERED THE SECRETARY OF LABOR TO FURNISH A
STATEMENT OF THE REASONS AND EXPLANATIONS UNDERLYING HIS DECISION NOT
TO FILE SUIT PURSUANT TO THE COMPLAINT RECEIVED FROM MR. WALTER
BACHOWSKI, A MEMBER IN GOOD STANDING OF THE UNITED STEELWORKERS OF
AMERICA, AFL- CIO- CLC (HEREINAFTER REFERRED TO AS THE INTERNATIONAL). 

ACCORDINGLY, DEFENDANT, SECRETARY OF LABOR, IS FURNISHING THE
FOLLOWING INFORMATION.  HOWEVER, IT IS RESPECTFULLY SUBMITTED THAT
DEFENDANT, SECRETARY OF LABOR, IN FURNISHING THIS STATEMENT DOES NOT
WAIVEANY LEGAL CLAIMS RAISED IN CONNECTION WITH THIS MATTER.  /1/ 

PURSUANT TO A COMPLAINT RECEIVED ON JUNE 21, 1973 FROM MR. WALTER
BACHOWSKI, THE SECRETARY OF LABOR CONDUCTED AN INVESTIGATIN OF THE
FEBURARY 13, 1973 ELECTION CONDUCTED BY THE INTERNATIONAL FOR THE
OFFICE OF DISTRICT DIRECTOR, DISTRICT 20.  DISTRICT 20 IS THE FOURTH
LARGEST STEELWORKER DISTRICT AND COVERS EIGHTS CONTIGUOUS COUNTIES IN
WESTERN PENNSYLVANIA, RUNNING FROM PITTSBURGH IN THE SOUTH TO ERIE IN
THE NORTH, AND OHIO TO THE WEST.  AT THE TIME OF THE ELECTION, DISTRICT
20 WAS COMPRISED OF APPROXIMATELY 67,419 MEMBERS. 

IN TOTAL , THE SECRETARY'S REPRESENTATIVES INVESTIGATED 80 OF
DISTRICT 20'S 190 LOCAL UNIONS, INCLUDING ALL 27 OF THE FORMER DISTRICT
50 LOCALS (THE SECRETARY HAS FOUND FROM PAST EXPERIENCE THAT FORMER
DISTRICT 50 LOCALS HAVE ENCOUNTERED AN UNUSUAL NUMBER OF ELECTION
RELATED PROBLEMS DUE TO THEIR RECENT ASSIMILATION INTO THE UNION).  IN
FORMULATING AN INVESTIGATIVE PLAN THE DEPARTMENT OF LABOR FOCUSED UPON
AND INVESTIGATED EACH AND EVERY LOCAL BROUGHT TO ITS ATTENTION BY MR.
BACHOWSKI, BOTH ORALLY AND IN HIS WRITTEN COMPLAINT.  INVESTIGATORS,
WHILE IN THE GEOGRAPHICAL AREAS OF THE LOCALS DESIGNATED BY MR.
BACHOWSKI, REVIEWED ADDITIONAL LOCAL UNIONS ON A RANDOM BASIS IN THOSE
AREAS.  ALSO, RED FLAG LOCALS WERE SELECTED ON A DISTRICT WIDE BASIS
WHERE, FOR EXAMPLE, VOTER TURNOUTS APPEARED TO BE INORDINATELY HIGH. 
IN ADDITION TO THE 80 IN DEPTH LOCAL UNION INVESTIGATIONS,
INVESTIGATORS INTERVIEWED NUMEROUS INDIVIDUALS INCLUDING MEMBERS, UNION
OFFICERS AND MR. BACHOWSKI HIMSELF CONCERNING THE EVENTS SURROUNDING
THE DISTRICT 20 ELECTION.  INVESTIGATORS ALSO REVIEWED AND EXAMINED
DOCUMENTARY EVIDENCE FOR FURTHER INVESTIGATIVE LEADS OR POTENTIAL
VIOLATIONS.  DURING THE COURSE OF THE ENTIRE PROCEEDING, INVESTIGATORS
WORKED HAND IN HAND WITH MR. BACHOWSKI ON AN ONGOING BASIS. 

BECAUSE OF THE SIZE OF DISTRICT 20 AND THE OBVIOUS LIMITATIONS ON
AVAILABLE MANPOWER (THE DEPARTMENT OF LABOR WAS CONCURRENTLY
INVESTIGATING ELECTIONS CONDUCTED IN FIVE OTHER DISTRICTS AS WELL), IT
WAS NOT POSSIBLE TO INVESTIGATE EACH AND EVERY LOCAL UNION IN DISTRICT
20.  HOWEVER, THE ABOVE DESCRIBED INVESTIGATIVE DESIGNWAS BROADLY
CONCEIVED AND WAS REASONABLY CALCULATED TO DISCLOSE ALL VIOLATIONS
WHICH MAY HAVE OCCURRED IN THE DISTRICT WIDE ELECTION. 

THEREFORE, IT IS READILY THE DEPARTMENT CONDUCTED A THOROUGH AND
EXHAUSTIVE INVESTIGATION INTO THE DISTRICT 20 ELECTION.  SET FORTH
BELOW IS A DETAILED ANALYSIS OF THE INVESTIGATIVE FINDINGS, ALONG WITH
THE NUMBERICAL ESTIMATES OF THE VOTES WHICH MAY HAVE BEEN AFFECTED AS A
RESULT OF THESE VIOLATIONS.  IN REACHING THESE NUMERICAL ESTIMATES, WE
HAVE NOT CONSIDERED FIGURES WHICH CONSTITUTE A REASONABLY PROBABLE
EFFECT, BUT RATHER, WILL SET FORTH VOTES WHICH HAVE BEEN CALCULATED TO
A MAXIMIM THEORETICAL POSSIBILITY.  BY USING THESE MAXIMIZED FIGURES,
WE ARE GIVING IN MOST INSTANCES THE BENEFIT OF THE DOUBT TO MR.
BACHOWSKI.  FOR EXAMPLE, LOCAL UNION 2789 WHICH WILL BE DISCUSSED
HEREIN FAILED TO CONDUCT AN ELECTION.  THUS, BY ASSUMING THAT THE
ENTIRE MEMBERSHIP OF 249 WOULD HAVE VOTED, AND MOREOVER WOULD HAVE
VOTED UNANIMOUSLY FOR MR. BACHOWSKI, WE ARRIVED AT THE MAXIMIZED FIGURE
FOR POSSIBLE EFFECT ON OUTCOME OF 249 VOTES.  THIS METHOS OF
COMPUTATION, WHILE THEORETICALLY POSSIBLE, IS HIGHLY UNLIKELY, SINCE,
FOR EXAMPLY, IN THE ENTIRE DISTRICT ONLY ABOUT ONE-THIRD OF THE MEMBERS
VOTED IN THE ELECTION.  THUS, THE REASONABLE PROBABILITY IN THIS LOCAL
UNION IS THAT ONLY APPROXIMATELY ONE-THIRD OF THE MEMBERS WOULD HAVE
VOTED HAD THERE BEEN AN ELECTION, AND THAT THOSE VOTING WOULD NOT HAVE
GIVEN MR. BACHOWSKI AN UNANIMITY OF THE VOTE. 

(1) LOCAL UNION 2203 

THE INVESTIGATIN IN THIS LOCAL UNION DISCLOSED A FAILURE TO MAIL A
NOTICE OF THE ELECTION TO TEN MEMBERS WORKING ON ONE EMPLOYER SITE, AND
CONSEQUENTLY, THEY WERE NEVER APPRISED OF THE ELECTION AND DID NOT
VOTE.  THUS, TEN MEMBERS WERE POTENTIALLY DENIED THE RIGHT TO VOTE IN
THIS LOCAL UNION AS A RESULT OF THE FAILURE TO MAIL NOTICE OF THE
ELECTION AS REQUIRED BY SECTION 401(E) OF THE ACT.  IN ARRIVING AT THIS
FIGURE TO TEN, WE WOULD NOTE, HOWEVER, THAT SINCE ONLY NINE OF THE
SEVENTEEN MEMBERS AT THE OTHER EMPLOYER LOCATION VOTED, IT SEEMS HIGHLY
UNLIKELY THAT ALL TEN MEMBERS WOULD HAVE VOTED IN THE ELECTION HAS THEY
BEEN NOTIFIED. 

(2) LOCAL UNION 2789 

THE FILES INDICATE THAT LOCAL UNION 2789 VOTED AT ITS MONTHLY
MEMBERSHIP MEETING NOT TO CONDUCT AN ELECTION BECAUSE OF A LACK OF
FUNDS.  ACCORDINGLY, NO ELECTION WAS CONDUCTED.  HOWEVER, SINCE THE
LOCAL UNION WAS OBLIGATED BY LAW TO CONDUCT AN ELECTION, IT WAS
CONCLUDED THAT THE TOTAL MEMBERSHIP OF 249 WERE POTENTIALLY DENIED THE
RIGHT TO VOTE IN VIOLATION OF SECTION 401(A) OF THE ACT.  AS NOTED
ABOVE, IN COMPUTING THE TOTAL NUMBER OF VOTES THAT MAY HAVE BEEN
AFFECTED BY THIS VIOLATION, WE HAVE INCLUDED THE ENTIRE MEMBERSHIP OF
THE LOCAL UNION, AND HAVE FURTHER ASSUMED THAT THE ENTIRE MEMBERSHIP
MAY HAVE VOTED FOR MR. BACHOWSK 

(3) LOCAL UNION 3186 

THIS LOCAL UNION FAILED TO PROVIDE ADEQUATE SAFEGUARDS TO INSURE A
FAIR ELECTION.  FOR EXAMPLE, THE PERSONS CONDUCTING THE ELECTION HAND
CARRIED BALLOTS TO MEMBERS AT THEIR WORK STATIONS, WHO WHERE THEN
PERMITTED TO VOTE.  THERE WAS NO SPECIFIC VOTING AREA AND NO VOTER
ELIGIBILITY LIST WAS USED.  THE ENTIRE CONDUCT OF THIS ELECTION LEFT A
GREAT DEAL TO BE DESIRED.  IT WAS THUS CONCLUDED THAT THE LOCAL UNION
FAILED TO PROVIDE ADEQUATE SAFEGUARDS TO INSURE A FAIR ELECTION AND
THAT THIS VIOLATION "MAY HAVE AFFECTED THE OUTCOME" OF THE ELECTION TO
THE EXTENT OF 16 VOTES.  THIS FIGURE OF 16 VOTES REPRESENT THE ENTIRE
MARGIN BY WHICH KLUZ PREVAILED OVER BACHOWSKI. 

(4) LOCAL UNION 3713 

THE INVESTIGATION OF THIS LOCAL UNION DISCLOSED VERY LOOSE BALLOT
CONTROL (MANY BALLOTS WERE FOUND LYING AROUND THE GROUNDS OF THE
EMPLOYER), AND AS A RESULT THE LOCAL WAS UNABLE TO ACCOUNT FOR 39
BALLOTS.  THE UNION THUS FAILED TO PROVIDE ADEQUATE SAFEGUARDS TO
INSURE A FAIR ELECTION AND THIS VIOLATION "MAY HAVE AFFECTED" 124
VOTES.  THIS FIGURE, AS IN THE PREVIOUS LOCAL, REPRESENTS THE FULL
MARGIN OF VICTORY BY KLUZ OVER BACHOWSKI. 

(5) LOCAL UNION 7496 

THIS LOCAL UNION, WHICH IS COMPRISED OF SIX MEMBERS, FAILED TO
CONDUCT AN ELECTION.  OUR INVESTIGATION DISCLOSED THAT THESE MEMBERS
WERE ELIGIBLE TO VOTE IN THE ELECTION AND THUS, THE SIX MEMBERS WERE
DENIED THE RIGHT TO VOTE IN VIOLATION OF SECTION 401(E) OF THE ACT. 
FOR PURPOSES OF POSSIBLE EFFECT ON OUTCOME, IT IS ASSUMED THAT ALL SIX
MEMBERS WOULD HAVE VOTED HAD AN ELECTION BEEN CONDUCTED AND THAT ALL
SIX MEMBERS WOULD HAVE VOTED FOR BACHOWSKI. 

(6) LOCAL UNION 7749 

THIS LOCAL UNION, CONSISTING OF 25 MEMBERS, FAILED TO SCHEDULE AND
CONDUCT AN ELECTION.  ALTHOUGH THERE APPEARED TO BE VOTER APATHY IN
THIS LOCAL UNION, IT WAS CONCLUDED THAT THESE 25 MEMBERS HAD BEEN
DENIED THE RIGHT TO VOTE.  HENCE, THE FIGURE OF 25 WAS ASSIGNED AS THE
POTENTIAL "EFFECT ON THE OUTCOME." 

(7) LOCAL UNION 12055 

THE 51 MEMBERS OF THIS LOCAL UNION WORK AT FOUR SEPARATE EMPLOYER
LOCATIONS.  THE INVESTIGATIVE FILES INDICATED THAT 38 MEMBERS AT THREE
OF THOSE SITES WERE NOT NOTIFIED OF THE ELECTION IN VIOLATION OF
THAT BALLOTS WERE DISTRIBUTED AND RECEIVED IN SUCH A MANNER THAT
SECRECY COULD NOT BE MAINTAINED.  ALL 13 MEMBERS VOTING AT THIS
LOCATION CAST THEIR BALLOTS IN FAVOR OF KLUZ AND THUS IT WAS CONSIDERED
THAT THESE 13 BALLOTS MAY HAVE BEEN AFFECTED AS A RESULT OF THIS
VIOLATION.  THUS, IN THIS LOCAL UNION, A TOTAL POTENTIALEFFECT ON
OUTCOME OF 51 VOTES WAS DERIVED BY ASSUMING THAT THE 38 MEMBERS NOT
NOTIFIED WOULD ALL HAVE VOTED AND CAST THEIR BALLOTS IN FAVOR OF
BACHOWSKI, AND THAT THE 13 MEMBERS WERE INFLUENCED BY THE NON-SECRET
CONDITITIONS TO VOTE FOR KLUZ. 

(8) LOCAL UNION 12059 

THIS LOCAL UNION CONSISTS OF APPROXIMATELY 185 MEMBERS EMPLOYED AT
TWO SEPARATE LOCATIONS.  THE INVESTIGATION REVEALED THAT NIE MEMBERS AT
ONE OF THESE LOCATIONS WERE NOT MAILED NOTICES OF THE ELECTION AS
REQUIRED.  THE FILE FURTHER REVEALED THAT THESE MEMBERS WERE IN FACT
ELIGIBLE TO VOTE.  THUS, IT WAS CONCLUDED THAT THE OUTCOME OF THIS
ELECTION MAY POTENTIALLY HAVE BEEN AFFECTED TO THE EXTENT OF EIGHT
VOTES AS A RESULTOF THIS VIOLATION, SINCE ONE OF THE NINE MEMBERS WHO
WAS NOT NOTIFIED OF THE ELECTION ACTUALLY VOTED. 

(9) LOCAL UNION 13972     THE INVESTIGATIVE FILE DISCLOSED THAT FIVE
MEMBERS OF THIS LOCAL UNION WHO WERE WORKING AT A PLANT SITE REMOVED
FROM THE REMAINDER OF THE LOCAL MEMBERS WERE DENIED AN OPPORTUNITY TO
VOTE IN THIS ELECTION.  THE FILES DISCLOSED THAT THE ELECTION COMMITTEE
FAILED TO PROVIDE FACILITIES FOR THESE MEMBERS.  THUS, FIVE VOTES MAY
HAVE BEEN AFFECTED BY THE VIOLATION IN THIS LOCAL UNION. 

(10) LOCAL UNION 14210 

A REVIEW OF THE INVESTIGATIVE FILE IN THIS LOCAL UNION DISCLOSED TWO
VIOLATIONS.  THE EVIDENCE INDICATED THAT ONE MEMBER WAS DENIED THE
RIGHT TO VOTE; THE LOCAL FAILED TO PROVIDE VOTING FACILITIES FOR A
MEMBER WHO WAS UNABLE TO REACH THE POLLS BECAUSE OF A WORK CONFLICT. 
IN ADDITION, THE EVIDENCE INDICATED THAT AN INELIGIBLE MEMBER WAS
PERMITTED TO VOTE IN VIOLATION OF SECTION 401(E) OF THE ACT.  THUS, TWO
MEMBERS WERE POTENTIALLY AFFECTED BY THE VIOLATIONS THAT OCCURRED IN
THIS LOCAL UNION. 

(11) LOCAL UNION 14661 

IN THIS LOCAL UNION, THE INVESTIGATION REVEALED THAT CERTAIN MEMBERS
MARKED THEIR BALLOTS IN SUCH PROXIMITY TO THE REGISTRATION TABLE THAT
SECRECY OF THE BALLOT MAY HAVE BEEN COMPROMISED.  THE INVESTIGATION
ALSO REVEALED EVIDENCE THAT ONE MEMBER SAW HOW ANOTHER MEMBER VOTED. 
THE RESULT IN THIS ELECTION WAS KLUZ 34, BACHOWSKI 20, AND BRUMMITT
11.  THE POSSIBLE EFFECT ON OUTCOME WAS 14, THE MARGIN OF VICTORY BY
KLUZ OVER BACHOWSKI. 

(12) LOCAL UNION 14768 

THE FILES REVEAL THAT ALTHOUGH AN ELECTION WAS CONDUCTED IN THIS
LOCAL UNION, NO RETURN SHEET WAS SUBMITTED TO THE INTERNATIONAL.  THE
EVIDENCE INDICATED THAT BECAUSE THE FINANCIAL SECRETARY THOUGHT HE HAD
NOT CONDUCTED THE ELECTION PROPERLY, HE DESTROYED ALL RECORDS AND DID
NOT SUBMIT A RETURN.  THUS, THE 17 MEMBERS CASTING BALLOTS IN THIS
ELECTION WERE DENIED A RIGHT TO VOTE IN VIOLATION OF SECTION 401(E) OF
THE ACT.  (IT SHOULD BE NOTED THAT THE UNION PURPORTS TO HAVE EVIDENCE
OF THE ACTUAL RETURN IN THIS LOCAL UNION, WHICH SHOWED KLUZ WINNING BY
ONE VOTE.) 

(13) LOCAL UNION 14800 

A REVIEW OF THE INVESTIGATIVE FILES ON LOCAL 14800 REVEALED THE
EXISTENCE OF THREE VIOLATIONS.  THE EVIDENCE VERY STRONGLY INDICATED
THAT THE LOCAL FAILED TO PROVIDE ADEQUATE SAFEGUARDS TO INSURE A FAIR
ELECTION IN VIOLATION OF SECTION 401(C) OF THE ACT.  THERE WAS EVIDENCE
THAT BALLOTS WERE SUBMITTED FOR SOME 40 MEMBERS WHO DID NOT IN FACT
VOTE IN THE ELECTION.  MOREOVER, INDIVIDUALS OTHER THAN ELECTION
TELLERS HAD ACCESS TO AND HANDLED BALLOTS WITHOUT ADEQUATE
SUPERVISION.  IN VIEW OF THE LACK OF ADEQUATE BALLOT CONTROL AND THE
STRONG INDICATION OF BALLOT FRAUD IN THIS LOCAL UNION, IT WAS CONCLUDED
BY THE SECRETARY THAT ALL 110 VOTES RECEIVED BY KLUZ SHOULD BE
CONSIDERED AS POSSIBLY HAVING BEEN AFFECTED BY THIS VIOLATION (118
VOTES WERE CAST IN THE ELECTION WITH BACHOWSKI RECEIVING 3 AND BRUMMITT
RECEIVING 5.)  THE EVIDENCE ALSO INDICATED THAT 78 MEMBERS AT THREE
EMPLOYER LOCATIONS WERE NOT ADEQUATELY NOTIFIED OF THE ELECTION IN
VIOLATION OF SECTION 401(E) OF THE ACT.  SINCE 38 OF THESE MEMBERS
VOTED, ONLY 40 MEMBERS MAY BE CONSIDEREDFOR PURPOSES OF EFFECT ON
OUTCOME (THE 38 WHO VOTED WERE INCLUDED IN THE FIGURE OF 110 ABOVE). 
FINALLY, THE FILE DISCLOSED THAT FUNDS OF LOCAL UNION 14800 WERE
EXPENDED FOR A CAMPAIGN RALLY SUPPORTING THE CANDIDACY OF MR. KLUZ. 
EVIDENCE TENDS TO INDICATE THAT 50 TO 100 MEMBERSATTENDED THE PARTY,
INCLUDING SOME OFFICERS AND MEMBERS OF LOCALS OTHER THAN 14800.  THUS,
USING MAXIMIZED FIGURES, 100 VOTES MAY HAVE BEEN AFFECTED BY THIS
VIOLATION (IN ADDITION TO THE TOTAL NUMBER OF MEMBERS ALREADY INCLUDED
ABOVE).  HOWEVER, WE WOULD NOTE THAT THE UNION HAS INDICATED THAT MANY
MEMBERS ATTENDING THIS PARTY WERE ARDENT KLUZ SUPPORTERS.  THUS, THE
ILLEGAL EXPENDITURE WOULD HAVE HAD LITTLE EFFECT, IF ANY, ON THEIR
VOTING PREFERENCE.  WE WERE UNABLE TO IDENTIFY THE MAJORITY OF THE
MEMBERS OF THE PARTY; THE UNION CONTENDS THAT MOST OF THE MEMBERS IN
ATTENDANCE WERE MEMBERS OF LOCAL UNION 14800, WHOSE ENTIRE VOTE WAS
REGARDED AS POSSIBLY AFFECTED BY OTHER VIOLATIONS AS NOTED ABOVE. 

(14) LOCAL UNION 14820 

THE INVESTIGATIVE FILE IN THIS LOCAL UNION INDICATED THAT THERE WAS
A FAILURE TO MAINTAIN SECRECY OF THE BALLOT IN VIOLATION OF SECTION
401(A) OF THE ACT, AS WELL AS A FAILURE TO ADEQUATELY NOTIFY MEMBERS OF
THE ELECTION IN VIOLATION OF SECTION 401(E) OF THE ACT.  THE
INVESTIGATION DISCLOSED THAT 22 BALLOTS CAST IN THIS ELECTION WERE
SIGNED ON THE BACK BY THE VOTING MEMBER--AN OBVIOUS VIOLATION OF
SECRECY.  ALTHOUGH OFFICERS OF THE LOCAL CLAIM THEY WERE NOT AWARE OF
THIS UNTIL A SUBSEQUENT REVIEW OF THE BALLOTS WITH A DEPARTMENT OF
LABOR INVESTIGATOR, THIS DOES NOT CANCEL THE VIOLATION, WHICH MAY HAVE
AFFECTED 22 VOTES.  THE EVIDENCE ALSO INDICATED 39 MEMBERS AT TWO
EMPLOYER SITES WERE NOT NOTIFIED OF THE ELECTION.  ASSUMING THAT ALL 39
WOULD HAVE VOTED AND THAT THEY WOULD HAVE CAST THEIR VOTES FOR
BACHOWSKI, 39 VOTES MAY HAVE BEEN AFFECTED BY THIS VIOLATION.  FINALLY,
THE FILE DISCLOSED THAT THROUGH INACCURATE TALLIES BY THE RESPONSIBLE
LOCAL UNION OFFICERR, BACHOWSKI RECEIVED ONE LESS VOTE THAN HIS
ENTITLEMENT WHILE KLUZ RECEIVED ONE ADDITIONAL VOTE.  HENCE, AN EXTRA
TWO VOTES MUST BE CONSIDERED AS HAVING BEEN AFFECTED BY THE LOCAL'S
FAILURE TO PROPERLY CREDIT THE VOTES TO THE PROPER CANDIDATES. 

(15) LOCAL UNION 14945 

THE INVESTIGATIVE FILE IN THIS LOCAL UNION REVEALED THAT BALLOTS
WERE MARKED ON TABLES BY VOTERS IN CLOSE PROXIMITY WHO WERE ABLE TO
OBSERVE HOW OTHER MEMBERS WERE VOTING THEIR BALLOTS.  THUS, THE LOCAL
FAILED TO OBSERVE SECRECY OF THE BALLOT AS REQUIRED BY SECTION 401(C)
OF THE ACT.  SINCE THE MARGIN OF VICTORY BY KLUZ OVER BACHOWSKI WAS 18,
18 VOTES MAY HAVE BEEN AFFECTED BY THE EXISTENCE OF THIS VIOLATION. 

(16) LOCAL UNION 15370 

THIS LOCAL UNION FAILED TO PROVIDEADEQUATE SAFEGUARDS TO INSURE A
FAIR ELECTION IN THAT THE BALLOT CONTROL WAS LESS THAN DESIRABLE. 
PERSONS NOT AUTHORIZED HANDLED BALLOTS AT ONE OR MORE TIMES THROUGHOUT
THE PERIOD OF THE ELECTION.  ALTHOUGH ADDITIONAL INVESTIGATION FAILED
TO DISCLOSE ANY EVIDENCE THAT WOULD INDICATE OTHER IRREGULARITIES SUCH
AS FRAUD OR INELIGIBLE MEMBERS VOTING, IT WAS NEVERTHELESS CONCLUDED
THAT THIS LACK OF ADEQUATE SAFEGUARDS MAY HAVE AFFECTED TEN MEMBERS IN
THIS LOCAL--THE MARGIN OF VOTES ACHIEVED BY KLUZ OVER BACHOWSKI. 

(17) LOCAL UNION 15420 

EVIDENCE DISCLOSED THAT THIS LOCAL UNION FAILED TO MAINTAIN ADEQUATE
SAFEGUARDS TO INSURE A FAIR ELECTION.  UNION RECORDS INDICATED THAT
KLUZ RECEIVED 15 VOTES, BACHOWSKI NONE, AND BRUMMITT ONE.  HOWEVER, THE
SECRETARY'S INVESTIGATION REVEALED THAT ONLY 13 MEMBERS WERE LISTED AS
VOTING.  IT WAS ALSO LEARNED THAT THIS LOCAL DID NOT MAINTAIN ADEQUATE
CONTROL OF THE BALLOTS A FACT WHICH MAY IN NO SMALL PART ACCOUNT FOR
THE DEVIATION BETWEEN THE NUMBER OF VOTES INDICATED AS HAVING BEEN CAST
AND THE NUMBER OF MEMBERS ACTUALLY VOTING.  THUS, THE SECRETARY OF
LABOR CONCLUDED THAT ALL 16 MEMBERS VOTING IN THIS ELECTION MAY HAVE
BEEN AFFECTED BY THE LOCAL'S FAILURE TO PROVIDE ADEQUATE SAFEGUARDS TO
INSURE A FAIR ELECTION. 

TO RECAPITULATE, WE ARE SETTING FORTH BELOW A LIST OF THE LOCALS IN
WHICH VIOLATIONS OCCURRED AND THE VOTES WHICH MAY POTENTIALLY HAVE BEEN
CALCULATED TO A THEORETICAL PROBABILITY AND REPRESENT THE MAXIMUM
NUMBER OF VOTES INVOLVED. 

    1.  LOCAL UNION 2203 -- 10 VOTES

  2.  LOCAL UNION 2789 -- 249 VOTES

    3.  LOCAL UNION 3186 -- 16 VOTES

    4.  LOCAL UNION 3713 -- 124 VOTES

    5.  LOCAL UNION 7496 -- 6 VOTES

    6.  LOCAL UNION 7749 -- 25 VOTES

    7.  LOCAL UNION 12055 -- 51 VOTES

    8.  LOCAL UNION 12059 -- 8 VOTES

    9.  LOCAL UNION 13972 -- 5 VOTES 

     10.  LOCAL UNION 14210 -- 2 VOTES 

     11.  LOCAL UNION 14661 -- 14 VOTES 

     12. LOCAL UNION 14768 -- 17 VOTES 

     13.  LOCAL UNION 14800 -- 250VOTES 

     14.  LOCAL UNION 14820 -- 63 VOTES 

    15.  LOCAL UNION 14945 -- 18 VOTES 

     16.  LOCAL UNION 15370 -- 10 VOTES 

     17.  LOCAL UNION 15420 -- 16 VOTES 

BY ADDING THE TOTAL OF THE VOTES SET FORTH IN THE LOCAL UNIONS
ABOVE, THE ELECTION FOR THE POSITION OF DISTRICT DIRECTOR, DISTRICT 20,
MAY THEORETICALLY HAVE BEEN AFFECTED BY VIOLATIONS DISCLOSED THROUGH
INVESTIGATION TO THE EXTENT OF 884 VOTES.  SINCE THE MARGIN OF VICTORY
BY WHICH MR. KLUZ PREVAILED OVER MR. BACHOWSKI WAS 907 VOTES /2/ IT WAS
THE SECRETARY OF LABOR'S CONCLUSION THAT THE VIOLATIONS WHICH OCCURRED
COULD NOT HAVE AFFECTED THE OUTCOME OF THE ELECTION.  MOREOVER, WE
WOULD NOTE THE SECRETARY LIKE ANY OTHER LITIGANT MUST BE COGNIZANT OF
ALL FACTORS ENTERING INTO PROSECUTION OF A TITLE IV CASE.  IN THIS
REGARD, THE UNION HAS RAISED SERIOUS QUESTION CONCERNING BACHOWSKI'S
INVOCATION OF HIS INTERNAL UNION REMEDIES, NOTABLY HIS FAILURE TO CARRY
A COMPLAINT TO THE INTERNATIONAL TELLERS WHOSE FUNCTION IS TO RULE
INITIALLY UPON THE VALIDITY OF ELECTION PROTESTS.  MR. BACHOWSKI CHOSE
TO BYPASS THIS STEP AND TO CARRY HIS PROTEST DIRECTLY TO THE EXECUTIVE
BOARD. 

THE PLAINTIFF HAS CORRECTLY ALLEGED IN THIS COMPLAINT AND THE
SECRETARY HAS CONFIRMED THROUGHINVESTIGATION, THAT CERTAIN VIOLATIONS
OF TITLE IV OCCURRED IN THE ELECTION FOR DISTRICT DIRECTOR FOR DISTRICT
20.  HOWEVER, THE SECRETARY CONCLUDED, AFTER REVIEW OF THE
INVESTIGATIVE FINDINGS THAT THE VOTES WHICH MAY HAVE BEEN AFFECTED BY
THE VIOLATIONS COULD NOT HAVE ALTERED THE OUTCOME OF THE ELECTION.  IN
WIRTZ V. LOCAL 153, GLASS BOTTLE BLOWERS ASSOCIATION, 389 U.S. 463
(1968) THE SUPREME COURT NOTED AT PAGE (472) THAT:

  THE SECRETARY MAY NOT INITIATE AN ACTION UNTIL HIS OWN
INVESTIGATION CONFIRMS THAT A VIOLATION

  OF SECTION 401 PROBABLY INFECTED THE CHALLENGED ELECTION. 
(EMPHASIS ADDED.)  THUS, THE FINDING OF VIOLATIONS BY THE SECRETARY OF
LABOR DOES NOT MATURE INTO AN ACTIONABLE CASE UNLESS HE HAS EVIDENCE
THAT SUCH VIOLATIONS "PROBABLY INFECTED" THE ELECTION IN QUESTION.  IN
THIS CASE, THE SECRETARY FOUND VIOLATIONS, BUT CONCLUDED THAT THEY DID
NOT AFFECT THE OUTCOME OF THE ELECTION. 

    CONCLUSION 

THE EXTENSIVE INVESTIGATION CONDUCTED BY THE DEPARTMENT OF LABOR
FOCUSED, AMONG OTHER THINGS, ON ALL THE SPECIFIC MATTERS RAISED BY MR.
BACHOWSKI.  AS HAS BEEN SHOWN ABOVE, CERTAIN VIOLATIONS WERE DISCLOSED
IN THE CONDUCT OF THIS ELECTION, HOWEVER, THESE VIOLATIONS COULD NOT
HAVE AFFECTED ITS OUTCOME.  THEREFORE, IT IS SUBMITTED THAT THE
SECRETARY OF LABOR IN ARRIVING AT HIS DETERMINATION NOT TO FILE SUIT TO
SET ASIDE THE DISTRICT 20 ELECTION PROPERLY DISCHARGED HIS STATUTORY
DUTIES UNDER TITLE IV OF THE ACT. 

        /S/ RICHARD L. THORNBERG

         ASSISTANT UNITED STATES ATTORNEY 

WILLIAM J. KILBERG SOLICITOR OF LABOR 

BEATE BLOCH ASSOCIATE SOLICITOR 

LOUIS WEINER REGIONAL SOLICITOR 

STEPHEN ERNST 

ROBERT K. SALYERS ATTORNEYS 

U.S. DEPARTMENT OF LABOR OF COUNSEL 

FILED:  NOVEMBER 11, 1974. 

/1/ DEFENDANT, SECRETARY OF LABOR, NOW HAS PENDING BEFORE THE
SUPREME COURT A PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT. 

/2/ THE RESULTS IN THE ELECTION FOR THE POSITION OF DISTRICT
DIRECTOR, DISTRICT 20 WERE AS FOLLOWS:  KLUZ -- 10,558 VOTES; BACHOWSKI
-- 9,651 VOTES; BRUMMITT -- 3,566 VOTES. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN THE OPINION OF THE COURT WITH THE UNDERSTANDING THAT THE
COURT HAS FASHIONED AN EXCEEDINGLY NARROW SCOPE OF REVIEW OF THE
SECRETARY'S DETERMINATION NOT TO BRING AN ACTION ON BEHALF OF A
COMPLAINANT TO SET ASIDE AN ELECTION.  THE LANGUAGE AND PURPOSES OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 532, 29
U.S.C. SEC. 481, HAVE REQUIRED THE COURT TO DEFINE A SCOPE OF REVIEW
MUCH NARROWER THAN APPLIES UNDER 5 U.S.C. SEC. 706(2)(A) IN MOST OTHER
ADMINISTRATIVE AREAS.  THE COURT'S HOLDING MUST BE READ AS PROVIDING
THAT THE DETERMINATION OF THE SECRETARY NOT TO CHALLENGE A UNION
ELECTION MAY BE HELD ARBITRARY AND CAPRICIOUS ONLY WHERE THE
SECRETARY'S INVESTIGATION, AS EVIDENCED BY HIS STATEMENT OF REASONS,
SHOWS ELECTION IRREGULARITIES THAT AFFECTED ITS OUTCOME AS TO THE
COMPLAINANT, WIRTZ V. BOTTLE BLOWERS ASSN., 389 U.S. 463, 472 (1968),
AND THAT NOTWITHSTANDING THE ILLEGAL CONDUCT SO FOUND THE SECRETARY
NEVERTHELESS REFUSES TO BRING AN ACTION AND ADVANCES NO RATIONAL REASON
FOR HIS DECISION. 

MR. JUSTICE REHNQUIST, CONCURRING IN THE RESULT IN PART AND
DISSENTING IN PART. 

THE PARTIES TO THIS CASE WILL HAVE TO BE EXCUSED IF THEY REACT WITH
SURPRISE TO THE OPINION OF THE COURT.  INSTEAD OF DECIDING THE ISSUE
PRESENTED IN THE SECRETARY OF LABOR'S PETITION FOR CERTIORARI, THE
COURT DECIDES AN ISSUE ABOUT WHICH THE PARTIES NO LONGER DISAGREE; TO
COMPOUND THE CONFUSION, THE REASONING ADOPTED BY THE COURT TO RESOLVE
THE ISSUE IT DOES DECIDE IS QUITE UNUSUAL UNLESS IT IS INTENDED TO
FORESHADOW DISPOSITION OF THE ISSUE UPON WHICH THE COURT PURPORTS TO
RESERVE JUDGMENT. 

        I 

AFTER EXHAUSTING INTRAUNION REMEDIES, RESPONDENT FILED A COMPLAINT
WITH THE SECRETARY OF LABOR ALLEGING VIOLATIONS OF SEC. 401 OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (LMRDA), 73
STAT.532, 29 U.S.C. SEC. 481.  THE SECRETARY CONDUCTED AN INVESTIGATION
AND CONCLUDED THAT NO CIVIL ACTION TO SET ASIDE THE CHALLENGED ELECTION
WAS WARRANTED.  RESPONDENT WAS SO NOTIFIED, /1/ AND HE THEN SOUGHT TO
CHALLENGE THE SECRETARY'S REFUSAL TO FILE SUIT.  THE COMPLAINT ALLEGED
THAT THE SECRETARY HAD REFUSED TO FILE SUIT, "(N)  OTWITHSTANDING THE
FACT THAT THE DEFENDANT SECRETARY'S INVESTIGATION HAS SUBSTANTIATED THE
(RESPONDENT'S) ALLEGATIONS," AND THAT RESPONDENT "HAS NOT BEEN GIVEN A
STATEMENT OF REASONS WHY THE DEFENDANT SECRETARY WILL NOT FILE SUIT." 
APP.  5 A. RESPONDENT ASKED THE COURT TO ORDER THE SECRETARY TO FILE
SUIT TO SET ASIDE THE ELECTION AND "DIRECT THE DEFENDANT SECRETARY TO
MAKE AVAILABLE FOR EXAMINATION BY THE (RESPONDENT) ALL EVIDENCE IT HAS
OBTAINED CONCERNING ITS INVESTIGATION OF THE AFORESAID ELECTION."  ID.,
AT 6 A.  THE COURT OF APPEALS, REVERSING THE DISTRICT COURT, HELD THAT
THE SECRETARY'S REFUSAL TO FILE AN ACTION TO SET ASIDE THE ELECTION WAS
JUDICIALLY REVIEWABLE.  IN CONSIDERING "THE PROPER SCOPE OF SUCH
JUDICIAL REVIEW," THE COURT OF APPEALS CONCLUDED THAT THE SECRETARY
SHOULD PREPARE A STATEMENT OF REASONS, PRESUMABLY TO ASSIST IN JUDICIAL
REVIEW AND ALSO TO ENSURE THAT PROPER DEFERENCE WAS PAID TO THE
SECRETARY'S DETERMINATIONS.  502 F.2D 79, 88 - 89 (CA3 1974). 
NOTWITHSTANDING CONTRARY VERBIAGE, THE APPROACH OF THIS COURT IS NOT
MATERIALLY DIFFERENT.  THE COURT EXPRESSLY RESERVES "THE QUESTION
WHETHER THE DISTRICT COURT IS EMPOWERED TO ORDER THE SECRETARY TO BRING
A CIVIL SUIT AGAINST THE UNION TO SET ASIDE THE ELECTION," ANTE, AT
575, BUT ITS JUSTIFICATION FOR ORDERING THE SECRETARY TO PROVIDE A
STATEMENT OF REASONS APPEARS PREMISED UPON AN AFFIRMATIVE DISPOSITION
OF THE RESERVED QUESTION:  THE SECRETARY MUST PROVIDE A STATEMENT OF
REASONS "TO ENABLE THE REVIEWING COURT INTELLIGENTLY TO REVIEW THE
SECRETARY'S DETERMINATION," ANTE, AT 571.  I CANNOT SUBSCRIBE TO
JUDICIAL REASONING OF THIS CONVOLUTED SORT. 

        II 

IN THE FIRST PLACE, WHETHER OR NOT A STATEMENT OF REASONS MUST BE
SUPPLIED BY THE SECRETARY IS NOT AN ISSUE PRESENTED BY THIS CASE.  THE
SINGLE QUESTION PRESENTED BY THE SECRETARY'S PETITION FOR CERTIORARI
IS: 

     " WHETHER A DISAPPOINTED UNION OFFICE SEEKER MAY INVOKE THE

  JUDICIAL PROCESS TO COMPEL THE SECRETARY OF LABOR TO BRING AN

  ACTION UNDER TITLE IV OF THE LABOR-MANAGEMENT REPORTING AND

  DISCLOSURE ACT OF 1959 TO SET ASIDE A UNION ELECTION."  PET.  FOR

  CERT. 2. 

THE SECRETARY DID NOT SEEK REVIEW OF THE HOLDING BY THE COURT OF
APPEALS THAT A STATEMENT OF REASONS WAS REQUIRED BUT INSTEAD PROCEEDED
TO COMPLY WITH THAT PORTION OF THE APPELLATE COURT'S HOLDING BY FILING
THE STATEMENT OF REASONS THAT IS APPENDED TO THE OPINION OF THE COURT. 
AS THE SECRETARY STATES:  " WE DO NOT CONTEST THIS PORTION OF THE
COURT'S HOLDING."  BRIEF FOR PETITIONER 5 N. 2. 

SUCH A CONCESSION APPEARS WELL FOUNDED, ALTHOUGH NOT FOR THE REASONS
STATED BY THE COURT.  INDEPENDENT OF ANY CONNECTION WITH JUDICIAL
REVIEW, A STATEMENT OF REASONS IS REQUIRED BY STATUTE.  THE
ADMINISTRATIVE PROCEDURE ACT (APA), WHICH IS APPLICABLE TO LMRDA, 29
U.S.C. SEC. 526, STATES: 

" PROMPT NOTICE SHALL BE GIVEN OF THE DENIAL IN WHOLE OR IN PART OF
A WRITTEN APPLICATION, PETITION, OR OTHER REQUEST OF AN INTERESTED
PERSON MADE IN CONNECTION WITH ANY AGENCY PROCEEDINGS.  EXCEPT IN
AFFIRMING A PRIOR DENIAL OR WHEN THE DENIAL IS SELF-EXPLANATORY, THE
NOTICE SHALL BE ACCOMPANIED BY A BRIEF STATEMENT OF THE GROUNDS FOR
DENIAL."  5 U.S.C. SEC. 555(E).  SEE S. DOC. NO. 248, 79TH CONG.,2D
SESS., 206, 265 (1946).  HERE, WHERE THE SECRETARY IS CHARGED WITH THE
RESPONSIBILITY OF ENFORCING THE RIGHTS OF INDIVIDUAL UNION MEMBERS AND
HAS ESTABLISHED A PROCEDURE FOR THE FILING OF A COMPLAINT WITH HIM BY
SUCH MEMBERS, SEC. 555(E) WOULD APPEAR TO BE APPLICABLE. 

THE ACQUIESCENCE OF THE SECRETARY HAS REMOVED THIS ISSUE FROM THE
CASE.  SINCE THE MAJORITY PERSISTS IN DECIDING IT, I CONCUR IN THE
RESULT ON THE BASIS OF THE APA, WHICH IS NOT DEPENDENT UPON THE
AVAILABILITY OF JUDICIAL REVIEW.  THIS GROUND, IN MY VIEW, FURNISHES A
SOUNDER REASON FOR CONCLUDING THAT A STATEMENT OF REASONS MUST BE
FURNISHED THAN DOES THE REASONING OF THE COURT. 

        III 

IT REMAINS TO CONSIDER THE ONLY QUESTION PRESENTED BY THE
SECRETARY'S PETITION FOR CERTIORARI:  IS JUDICIAL REVIEW AVAILABLE AT
THE BEHEST OF RESPONDENT TO FORCE THE SECRETARY TO FILE A CIVIL ACTION
TO SET ASIDE THE UNION ELECTION? 

RESPONDENT DOES NOT RELY UPON ANY PROVISION OF THE LMRDA AS
AUTHORIZING THIS POST-ELECTION LAW SUIT, FOR INDEED THERE IS NONE. 
INSTEAD, RESPONDENT RELIES UPON THE APA JUDICIAL-REVIEW PROVISIONS, 5
U.S.C. SECS. 701 - 706.  APP. 3 A. THE JUDICIAL-REVIEW PROVISIONS OF
THE APA DO NOT APPLY, HOWEVER, "TO THE EXTENT THAT--(1) STATUTES
PRECLUDE JUDICIAL REVIEW; OR (2) AGENCY ACTION IS COMMITTED TO AGENCY
DISCRETION BY LAW."  5 U.S.C. SEC. 701(A). 

I AGREE WITH THE COURT THAT 29 U.S.C. SEC. 483 DOES NOT PRECLUDE
JUDICIAL REVIEW OF THE KIND SOUGHT IN THIS CASE.  THAT SECTION
EXPRESSES THE CONGRESSIONAL JUDGMENT THAT THE CIVIL ACTION FILED BY THE
SECRETARY UNDER 29 U.S.C. SEC. 482(B) SHALL BE THE EXCLUSIVE REMEDY
"FOR CHALLENGING AN ELECTION ALREADY CONDUCTED."  RESPONDENT RECOGNIZES
THAT THIS COURT'S DECISION IN CALHOON V. HARVEY, 379 U.S. 134 (1964),
PRECLUDES HIM FROM PROCEEDING DIRECTLY AGAINST THE UNION, A RESULT THAT
I BELIEVE IS COMPELLED BY SEC. 483.  BUT SEC. 483 IS SILENT ABOUT THE
AVAILABILITY OF RELIEF TO FORCE THE SECRETARY TO PURSUE THE REMEDY THAT
IS EXCLUSIVELY HIS, AND UNDER THIS COURT'S DECISIONS A PROHIBITION OF
JUDICIAL REVIEW IS NOT TO BE LIGHTLY INFERRED.  ABBOTT LABORATORIES V.
GARDNER, 387 U.S. 136, 140 - 141 (1967). 

I REACH A CONTRARY CONCLUSION, HOWEVER, WITH REGARD TO THE SECOND
CLAUSE OF SEC. 701(A).  IT SEEMS TO ME THAT PRIOR DECISIONS OF THIS
COURT ESTABLISH THAT THE SECRETARY'S DECISION TO FILE OR NOT TO FILE A
COMPLAINT UNDER SEC. 482 IS PRECISELY THE KIND OF "AGENCY ACTION . . .
COMMITTED TO AGENCY DISCRETION BY LAW" EXEMPTED FROM THE JUDICIAL
REVIEW PROVISIONS OF THE APA. 

IN LMRDA CASES, THIS COURT HAS REPEATEDLY RECOGNIZED THE EXCLUSIVE
ROLE IN POSTELECTION CHALLENGES PLAYED BY THE SECRETARY.  IN CALHOON V.
HARVEY, SUPRA, AT 140 - 141 (FOOTNOTE OMITTED), WE SAID: 

" SECTION 402 OF TITLE IV, AS HAS BEEN POINTED OUT, SETS UP AN
EXCLUSIVE METHOD FOR PROTECTING TITLE IV RIGHTS, BY PERMITTING AN
INDIVIDUAL MEMBER TO FILE A COMPLAINT WITH THE SECRETARY OF LABOR
CHALLENGING THE VALIDITY OF ANY ELECTION BECAUSE OF VIOLATIONS OF TITLE
IV.  UPON COMPLAINT THE SECRETARY INVESTIGATES AND IF HE FINDS PROBABLE
CAUSE TO BELIEVE THAT TITLE IV HAS BEEN VIOLATED, HE MAY FILE SUIT IN
THE APPROPRIATE DISTRICT COURT.  IT IS APPARENT THAT CONGRESS DECIDED
TO UTILIZE THE SPECIAL KNOWLEDGE AND DISCRETION OF THE SECRETARY OF
LABOR IN ORDER BEST TO SERVE THE PUBLIC INTEREST.  . . . IN SO DOING
CONGRESS, WITH ONE EXCEPTION NOT HERE RELEVANT, DECIDED NOT TO PERMIT
INDIVIDUALS TO BLOCK OR DELAY UNION ELECTIONS BY FILING FEDERAL-COURTS
SUITS FOR VIOLATIONS OF TITLE IV.  RELIANCE ON THE DISCRETION OF THE
SECRETARY IS IN HARMONY WITH THE GENERAL CONGRESSIONAL POLICY TO ALLOW
UNIONS GREAT LATITUDE IN RESOLVING THEIR OWN INTERNAL CONTROVERSIES,
AND, WHERE THAT FAILS, TO UTILIZE THE AGENCIES OF GOVERNMENT MOST
FAMILIAR WITH UNION PROBLEMS TO AID IN BRINGING ABOUT A SETTLEMENT
THROUGH DISCUSSION BEFORE RESORT TO THE COURTS.  WITHOUT SETTING OUT
THE LENGTHY LEGISLATIVE HISTORY WHICH PRECEDED THE PASSAGE OF THIS
MEASURE, IT IS SUFFICIENT TO SAY THAT WE ARE SATISFIED THAT THE ACT
ITSELF SHOWS CLEARLY BY ITS STRUCTURE AND LANGUAGE THAT THE DISPUTES
HERE, BASICALLY RELATING AS THEY DO TO ELIGIBILITY OF CANDIDATES FOR
OFFICE, FALL SQUARELY WITHIN TITLE IV OF THE ACT AND ARE TO BE
RESOLVEDBY THE ADMINISTRATIVE AND JUDICIAL PROCEDURES SET OUT IN THAT
TITLE."  (EMPHASIS ADDED.)  SEE ALSO WIRTZ V. BOTTLE BLOWERS ASSN., 389
U.S. 463, 473 - 474 (1968).  MORE RECENTLY, IN TRBOVICH V. MINE
WORKERS, 404 U.S. 528 (1972), WE SAID, IN HTE CONTEXT OF CLAIMS
PRESENTED BY AN INTERVENOR THAT HAD NOT BEEN INCLUDED IN THE
SECRETARY'S COMPLAINT: 

     " WITH RESPECT TO LITIGATION BY UNION MEMBERS, THEN, THE

  LEGISLATIVE HISTORY SUPPORTS THE CONCLUSION THAT CONGRESS

  INTENDED TO PREVENTMEMBERS FROM PRESSING CLAIMS NOT THOUGHT

  MERITORIOUS BY THE SECRETARY, AND FROM LITIGATING IN FORUMS OR AT

TIMES DIFFERENT FROM THOSE CHOSEN BY THE SECRETARY.  . . .

      * * * * * 

     ". . . (WE THINK CONGRESS INTENDED TO INSULATE THE UNION FROM

  ANY COMPLAINT THAT DID NOT APPEAR MERITORIOUS TO BOTH A

  COMPLAINING MEMBER AND THE SECRETARY.  ACCORDINGLY, WE HOLD THAT

  IN A POST-ELECTION ENFORCEMENT SUIT, TITLE IV IMPOSES NO BAR TO

  INTERVENTION BY A UNION MEMBER, SO LONG AS THAT INTERVENTION IS

  LIMITED TO THE CLAIMS OF ILLEGALITY PRESENTED BY THE SECRETARY'S

  COMPLAINT."  ID., AT 536 - 537 (FOOTNOTE OMITTED; EMPHASIS

  ADDED). 

THE EXCLUSIVITY OF THE SECRETARY'S ROLE IN THE ENFORCEMENT OF TITLE
IV RIGHTS IS NO ACCIDENT.  IT REPRESENTS A CONSCIOUS LEGISLATIVE
COMPROMISE ADOPTED TO BALANCE TWO IMPORTANT BUT CONFLICTING INTERESTS:
VINDICATION OF THE RIGHTS OF UNION MEMBERS AND FREEDOM OF UNIONS FROM
UNDUE HARASSMENT.  SEE BOTTLE BLOWERS, SUPRA, AT 470 - 471.  THIS COURT
HAS RECOGNIZED UNREVIEWABLEDISCRETION BOTH IN THE LABOR AREA, VACA V.
SIPES,386 U.S. 171, 182 (1967), AND IN OTHER CIVIL AREAS, THE
CONFISCATION CASES, 7 WALL.  454 (1869); FTC V. KLESNER, 280 U.S. 19,
25 (1929).  THE COURT OF APPEALS SOUGHT TO DISTINGUISH THIS LINE OF
CASES ON THE GROUNDS THAT IT INVOLVED "VINDICATION OF SOCIETAL OR
GOVERNMENTAL INTEREST, RATHER THAN THE PROTECTION OF INDIVIDUAL
RIGHTS," 502 F.2D, AT 87.  WHILE THE SECRETARY POINTS OUT THE
ARTIFICIALITY OF THIS PURPORTED DISTINCTION AND REFUTES IT AS APPLIED
TO THESE CASES, BRIEF FOR PETITIONER 30, A MORE BASIC RESPONSE IS THAT
SUCH CONSIDERATIONS PROVIDE NO BASIS FOR CONTRAVENTION OF LEGISLATIVE
INTENT: 

" CONGRESS FOR REASONS OF ITS OWN DECIDED UPON THE METHOD FOR THE
PROTECTION OF THE 'RIGHT' WHICH IT CREATED.  IT SELECTED THE PRECISE
MACHINERY AND FASHIONED THE TOOL WHICH IT DEEMEDSUITED TO THAT END.  .
. . ALL CONSTITUTIONAL QUESTIONS ASIDE, IT IS FOR CONGRESS TO DETERMINE
HOW THE RIGHTS WHICH IT CREATES SHALL BE ENFORCED."  SWITCHMEN'S UNION
V. NATIONAL MEDIATION BOARD, 320 U.S. 297, 301 (1943). 

THE COURT RECOGNIZES THE POWER OF THESE ARGUMENTS, IF ONLY BY
UNDERSTATEMENT, WHEN IT ACKNOWLEDGES THAT ANY ARGUMENT FOR JUDICIAL
REVIEW OF THE SECRETARY'S DETERMINATION "OBVIOUSLY PRESENTS SOME
DIFFICULTY IN LIGHT OF THE STRONG EVIDENCE THAT CONGRESS DELIBERATELY
GAVE EXCLUSIVE ENFORCEMENT AUTHORITY TO THE SECRETARY."  ANTE, AT 575
(FOOTNOTE OMITTED).  IN MY VIEW THE PARTIES TO THIS LITIGATION ARE
ENTITLED TO ADJUDICATION OF THE ISSUE UPON WHICH THIS COURT GRANTED
CERTIORARI.  I WOULD ACCORDINGLY REVERSE THE JUDGMENT OF THE COURT OF
APPEALS INSOFAR AS IT HELD THAT THE SECRETARY'S REFUSAL TO INSTITUTE AN
ACTION UNDER 29 U.S.C. SEC. 482 IS JUDICIALLY REVIEWABLE UNDER THE
PROVISIONS OF THE APA, 5 U.S.C. SECS. 701 - 706. 

/1/ RESPONDENT WAS NOTIFIED BY TELEPHONE THAT THE SECRETARY HAD
DECIDED NOT TO FILE SUIT TO SET ASIDE THE ELECTION.  APP. 5 A. ON THE
DAY RESPONDENT FILED HIS COMPLAINT, THE LABOR DEPARTMENT SENT HIM A
LETTER NOTIFYING HIM OF THE SECRETARY'S DECISION IN THE FOLLOWING
MANNER: 

" PURSUANT TO SECTIONS 402 AND 601 OF THE ACT, AN INVESTIGATION WAS
CONDUCTED BY THIS OFFICE.  BASED ON THE INVESTIGATIVE FINDINGS, IT HAS
BEEN DETERMINED, AFTER CONSULTATION WITH THE SOLICITOR OF LABOR, THAT
CIVIL ACTION TO SET ASIDE THE CHALLENGED ELECTION IS NOT WARRANTED.  WE
ARE, THEREFORE, CLOSING OUR FILE IN THIS CASE AS OF THIS DATE."  BRIEF
FOR RESPONDENT 1 A. 

MARK L. EVANS ARGUED THE CAUSE FOR PETITIONER.  ON THE BRIEF WERE
SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL HILLS, DEPUTY
SOLICITOR GENERAL WALLACE, AND BEATE BLOCH. 

JOSEPH L. RAUH, JR., ARGUED THE CAUSE FOR RESPONDENT BACHOWSKI. 
WITH HIM ON THE BRIEF WERE JOHN SILARD, ELLIOTT C. LICHTMAN, AND
KENNETH J. YABLONSKI.  MICHAEL H. GOTTESMAN ARGUED THE CAUSE FOR
RESPONDENT UNITED STEELWORKERS OF AMERICA, AFL- CIO.  WITH HIM ON THE
BRIEF WAS BERNARD KLEIMAN. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JOSEPH A.
YABLONSKI AND DANIEL B. EDELMAN FOR THE UNITED MINE WORKERS OF AMERICA,
AND BY CLARICE R. FELDMAN FOR THE ASSOCIATION FOR UNION DEMOCRACY, INC.

..END :






















UNITED STATES V. MISSISSIPPI TAX COMM'N, 421 U.S 599 


       UNITED STATES V. TAX COMMISSION OF MISSISSIPPI ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF MISSISSIPPI

  NO. 74 - 548.  ARGUED APRIL 22, 1975--DECIDED

JUNE 2, 1975; 378 F.SUPP.558, REVERSED. 


    A MISSISSIPPI TAX COMMISSION REGULATION REQUIRES OUT-OF-STATE

  LIQUOR DISTILLERS AND SUPPLIERS TO COLLECT FROM MILITARY

  INSTALLATIONS WITHIN MISSISSIPPI, AND REMIT TO THE COMMISSION, A

  TAX IN THE FORM OF A WHOLESALE MARKUP ON LIQUOR SOLD TO THE

  INSTALLATIONS.  THE UNITED STATES HAS FOUR MILITARY INSTALLATIONS

  IN MISSISSIPPI, EXERCISING EXCLUSIVE JURISDICTION OVER TWO AND

  CONCURRENT JURISDICTION OVER THE OTHER TWO.  THE UNITED STATES

  PAID UNDER PROTEST THE MARKUP ON LIQUOR PURCHASED FROM

  OUT-OF-STATE DISTILLERS BY THE VARIOUS NONAPPROPRIATED FUND

  ACTIVITIES AT THESE INSTALLATIONS, AND BROUGHT ACTION TO HAVE THE

REGULATION DECLARED UNCONSTITUTIONAL AND FOR OTHER RELIEF.  AFTER

  THIS COURT'S REVERSAL OF A THREE-JUDGE DISTRICT COURT'S OPINION

  DENYING RELIEF, UNITED STATES V. MISSISSIPPI TAX COMM'N, 412 U.S.

  363, THAT COURT ON REMAND AGAIN DENIED RELIEF.  HELD:  VIEWING

  THE MARKUP AS A SALES TAX, THE LEGAL INCIDENCE OF THE TAX RESTS

  UPON INSTRUMENTALITIES OF THE UNITED STATES AS THE PURCHASERS,

  AGRICULTURE BANK V. TAX COMM'N, 392 U.S. 339, AND HENCE THE

  MARKUP IS UNCONSTITUTIONAL AS A TAX IMPOSED UPON THE UNITED

  STATES AND ITS INSTRUMENTALITIES, MC CULLOCH V. MARYLAND , 4

WHEAT.  316.  PP. 604 - 614. 

     (A) SINCE THE LEGAL INCIDENCE OF THE TAX IS UPON THE UNITED

  STATES, IN VIEW OF THE REQUIREMENT OF THE RGULATION THAT THE TAX

  BE PASSED ON TO THE PURCHASER, THE FEDERAL IMMUNITY WITH RESPECT

TO SALES OF LIQUOR TO THE TWO EXCLUSIVELY FEDERAL ENCLAVES IS

  PRESERVED BY SEC. 107(A) OF THE BUCK ACT.  UNDER THAT PROVISION

  SEC. 105(A) OF THE ACT, WHICH PRECLUDES ANY PERSON FROM BEING

  RELIEVED OF ANY STATE SALES OR USE TAX ON THE GROUND THAT THE

  SALE OR USE OCCURRED IN WHOLE OR IN PART WITHIN A FEDERAL AREA,

  "SHALL NOT BE DEEMED TO AUTHORIZE THE LEVY OR COLLECTION OF ANY

  TAX ON OR FROM THE UNITED STATES OR ANY INSTRUMENTALITY

  THEREOF."  PP. 611 - 613. 

     (B) THE TWENTY-FIRST AMENDMENT DID NOT ABOLISH FEDERAL
IMMUNITY

  WITH RESPECT TO TAXES ON THE SALES OF LIQUOR TO THE CONCURRENT

  JURISDICTION BASES.  CF. UNITED STATES V. MISSISSIPPI TAX COMM'N,

  SUPRA, PP. 613 - 614. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, MARSHALL, BLACKMUN, AND POWELL,

  JJ., JOINED.  DOUGLAS AND REHNQUIST, JJ., FILED A DISSENTING

  STATEMENT, POST, P. 615. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

REGULATION 25 OF THE MISSISSIPPI STATE TAX COMMISSION REQUIRES OUT-OF
STATE LIQUOR DISTILLERS AND SUPPLIERS TO COLLECT FROM MILITARY
INSTALLATIONS WITHIN MISSISSIPPI, AND REMIT TO THE COMMISSION, A TAX IN
THE FORM OF A WHOLESALE MARKUP OF 17% TO 20% ON LIQUOR SOLD TO THE
INSTALLATIONS.  /1/ THE UNITED STATES HAS FOURT MILITARY INSTALLATIONS
IN THE STATE.  EXCLUSIVE FEDERAL JURISDICTION IS EXERCISED OVER TWO OF
THE INSTALLATIONS, KESSLER AIR FORCE BASE AND THE NAVAL CONSTRUCTION
BATTALION CENTER.  /2/ THE UNITED STATES AND MISSISSIPPI EXERCISE
CONCURRENT JURISDICTION OVER THE OTHER TWO INSTALLATIONS, COLUMBUS AIR
FORCE BASE AND MERIDIAN NAVAL AIR STATION.  THE ISSUE PRESENTED ON THIS
APPEAL IS WHETHER REGULATION 25 IMPOSES AN UNCONSTITUTIONAL STATE TAX
UPON THESE FEDERAL INSTRUMENTALITIES. 

        I 

THE CONTROVERSY BETWEEN THE UNITED STATES AND THE TAX COMMISSION
OVER REGULATION 28 IS HERE FOR THE SECOND TIME.  SHORTLY AFTER ADOPTION
OF THE REGULATION, THE UNITED STATES ASSERTED BEFORE THE COMMISSION
THAT THE MARKUP WAS UNCONSTITUTIONAL AS A TAX UPON FEDERAL
INSTRUMENTALITIES, AND PROPOSED AN ESCROW ACCOUNT FOR THE AMOUNT OF THE
TAX PENDING A JUDICIAL DETERMINATION OF ITS LEGALITY.  THE COMMISSION
REFUSED AND ADVISED OUT-OF-STATE DISTILLERS BY LETTER THAT THE MARKUP
"MUST BE INVOICED TO THE MILITARY AND COLLECTED DIRECTLY FROM THE
MILITARY . . ."  OR THE DISTILLERS WOULD FACE CRIMINAL PROSECUTION AND
DELISTMENT OF THEIR AUTHORITY TO SELL LIQUOR IN MISSISSIPPI.  THE
UNITED STATES THEREUPON PAID THE MARKUP UNDER PROTEST AND BROUGHT THIS
ACTION IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI. 
THE COMPLAINT SOUGHT A DECLARATORY JUDGMENT THAT REGULATION 25 IMPOSED
AN UNCONSTITUTIONAL TAX ON FEDERAL INSTRUMENTALITIES, AN INJUNCTION
AGAINST ITS ENFORCEMENT, AND A REFUND OF THE SUMS PAID UNDER PROTEST. 
/3/ THE TAX COMMISSION MOVED FOR SUMMARY JUDGMENT.  A THREE-JUDGE
DISTRICT COURT GRANTED THE COMMISSION'S MOTION.  340 F.SUPP.  903
(1972).  THE DISTRICT COURT CONCLUDED THAT DESPITE ART. I, SEC.8 CL.
17, OF THE CONSTITUTION, /4/  THE TWENTY-FIRST AMENDMENT PERMITTED THE
TAX COMMISSION TO APPLY THE MARKUP TO OUT-OF-STATE PURCHASES DESTINED
FOR NONAPPROPRIATED FUND ACTIVITIES ON THE TWO INSTALLATIONS, KEESLER
AND THE NAVAL CONSTRUCTION BATTALION CENTER, OVER WHICH THE UNITED
STATES EXERCISES EXCLUSIVE JURISDICTION, AND THAT THEREFORE, A
FORTIORI, THE LIQUOR SALES MADE ON THE TWO BASES OVER WHICH THE UNITED
STATES AND MISSISSIPPI EXERCISE CONCURRENT JURISDICTION, MERIDIAN AND
COLUMBUS, ARE SIMILARLY SUBJECT TO THE MISSISSIPPI TAX.  WE REVERSED
AND REMANDED FOR FURTHER PROCEEDINGS.  WE HELD THAT THE COURT ERRED IN
RULING THAT THE TWENTY-FIRST AMENDMENT EMPOWERED THE TAX COMMISSION TO
APPLY THE MARKUP TO TRANSACTIONS BETWEEN OUT-OF-STATE DISTILLERS AND
NONAPPROPRIATED FUND ACTIVITIES ON THE TWO EXCLUSIVELY FEDERAL
ENCLAVES, AND HELD THAT THIS CONCLUSION ALSO ELIMINATED THE ESSENTIAL
PREMISE OF THE DISTRICT COURT'S DECISION CONCERNING THE TWO CONCURRENT
JURISDICTION BASES.  412 U.S. 363 (1973). 

THERE WERE HOWEVER OTHER ISSUES ADDRESSED TO REGULATION 25 THAT HAD
NOT BEEN REACHED BY THE DISTRICT COURT.  WE THEREFORE REMANDED THE CASE
FOR THAT COURT'S INITIAL CONSIDERATION AND DETERMINATION OF THE
ISSUES.  IN RESPECT TO THE TWO EXCLUSIVELY FEDERAL ENCLAVES, THE TAX
COMMISSION ARGUED THAT THE MARKUP MIGHT PROPERLY BE VIEWED AS A SALES
TAX, AND THAT THE UNITED STATES HAD CONSENTED TO THE IMPOSITION OF SUCH
A "TAX" UNDER THE BUCK ACT OF 1940, NOW 4 U.S.C. SECS. 105 - 110. 
USE TAX LEVIED BY A STATE ON THE GROUND THAT THE SALE OR USE OCCURRED
IN WHOLE OR PART WITHIN A FEDERAL AREA.  BUT SEC. 107(A) PROVIDES THAT
SEC. 105(A) "SHALL NOT BE DEEMED TO AUTHORIZE THE LEVY OR COLLECTION OF
ANY TAX ON OR FROM THE UNITED STATES OR ANY INSTRUMENTALITY THEREOF . .
. ."  WE DIRECTED THAT, UPON REMAND, THE DISTRICT COURT ADDRESS AND
DETERMINE THE QUESTIONS WHETHER THE MARKUP SHOULD BE TREATED AS A TAX
ON SALES OCCURRING WITHIN A FEDERAL AREA WITHIN THE MEANING OF SEC.
105(A), AND, IF SO, WHETHER THE EXCEPTION CONTAINED IN SEC. 107(A)
NEVERTHELESS PRESERVES THE FEDERAL IMMUNITY WITH RESPECT TO
TRANSACTIONS WITH NONAPPROPRIATED FUND ACTIVITIES ON THE TWO
EXCLUSIVELY FEDERAL ENCLAVES.  412 U.S., AT 378 - 379. 

THE BUCK ACT QUESTIONS ARE IRRELEVANT TO THE MARKUP AS APPLIED TO
THE TWO CONCURRENT JURISDICTION BASES, AND, THEREFORE, THE UNITED
STATES ARGUED THAT THE MARKUP IS A TAX UPON INSTRUMENTALITIES OF THE
UNITED STATES THAT IS UNCONSTITUTIONAL UNDER MC CULLOCH V. MARYLAND, 4
WHEAT.  316 (1819).  WE DIRECTED THAT THE DISTRICT COURT ALSO ADDRESS
AND DECIDE THE INSTRUMENTALITY ARGUMENT ON REMAND.  412 U.S., AT 380 -
381.  /5/

     II 

ON THE REMAND THE DISTRICT COURT HELD, AS TO THE EXCLUSIVELY FEDERAL
ENCLAVES, THAT THE MARKUP CONSTITUTED A "SALES OR USE TAX"  WITHIN THE
MEANING OF SEC. 105(A) OF THE BUCK ACT, AND THAT THE EXCEPTION IN SEC.
107(A) FOR TAXES UPON FEDERAL INSTRUMENTALITIES WAS INAPPLICABLE
BECAUSE REGULATION 25 IMPOSES THE LEGAL INCIDENCE OF THE TAX UPON THE
DISTILLERS, AND NOT UPON ANY FEDERAL INSTRUMENTALITY, 378 F.SUPP.  558,
570 - 573 (1974).  FOR THE SAME REASON, THE DISTRICT COURT HELD THAT
THE TAX UPON THE SALES TO THE TWO CONCURRENT JURISDICTION BASES WAS NOT
AN UNCONSTITUTIONAL TAX UPON INSTRUMENTALITIES OF THE UNITED STATES. 
ID., AT 569.  WE AGAIN NOTED PROBABLE JURISDICTION, 419 U.S. 1104
(1975).  WE REVERSE. 

        III 

THE EXCEPTION IN SEC. 107(A) IS PLAINLY A CONGRESSIONAL PRESERVATION
OF FEDERAL IMMUNITY FROM ANY STATE TAX THAT WOULD VIOLATE THE PRINCIPLE
OF MC CULLOCH V. MARYLAND, SUPRA, PROHIBITING STATE TAXATION OF
INSTRUMENTALITIES OF THE UNITED STATES.  IF REGULATION 25 IS INVALID
UNDER THAT PRINCIPLE, IT IS INVALID IN ITS IMPOSITION OF THE MARKUP
UPON ALL OUT-OF-STATE PURCHASES, BOTH THOSE DESTINED FOR THE
NONAPPROPRIATED FUND ACTIVITIES ON THE EXCLUSIVE JURISDICTION BASES,
AND THOSE DESTINED FOR THOSE ACTIVITIES ON THE CONCURRENT JURISDICTION
BASES.  WE THEREFORE TURN TO OUR REASONS FOR CONCLUDING THAT REGULATION
25 IS AN UNCONSTITUTIONAL TAX UPON INSTRUMENTALITIES OF THE UNITED
STATES. 

BEFORE 1966, MISSISSIPPI PROHIBITED THE SALE OR POSSESSION OF
ALCOHOLIC BEVERAGES WITHIN ITS BORDERS.  IN THAT YEAR, HOWEVER, THE
STATE LEGISLATURE ENACTED THE " LOCAL OPTION ALCOHOLIC BEVERAGE CONTROL
LAW," MISS.  CODE ANN. SEC. 67 - 1 - 1 ET SEQ., WHICH CREATED THE STATE
TAX COMMISSION AS THE SOLE IMPORTER AND WHOLESALER OF ALCOHOLIC
BEVERAGES, NOT INCLUDING MALT LIQUOR, IN THE STATE, MISS.  CODE ANN.
SEC. 67 - 1 - 41.  THE STATUTE AUTHORIZED THE TAX COMMISSION TO
PURCHASE INTOXICATING LIQUORS AND SELL THEM "TO AUTHORIZED RETAILERS
WITHIN THE STATE INCLUDING, AT THE DISCRETION OF THE COMMISSION, ANY
RETAIL DISTRIBUTORS OPERATING WITHIN ANY MILITARY POST . . .WITHIN THE
BOUNDARIES OF THE STATE, . . . EXERCISING SUCH CONTROL OVER THE
DISTRIBUTION OF ALCOHOLIC BEVERAGES AS SEEMS) RIGHT AND PROPER IN
KEEPING WITH THE PROVISIONS AND PURPOSES OF THIS CHAPTER."  IBID.  THE
LEGISLATURE ALSO DIRECTED THE COMMISSION TO ADD TO THE COST OF ALL
ALCOHOLIC BEVERAGES A PRICE MARKUP DESIGNED TO COVER THE COST OF
OPERATION OF THE WHOLESALE LIQUOR BUSINESS, YIELD A REASONABLE PROFIT,
AND KEEP MISSISSIPPI'S LIQUOR PRICES COMPETITIVE WITH THOSE OF
NEIGHBORING STATES, MISS.  CODE ANN. SEC. 27 - 71 - 11.  GENERALLY, THE
WHOLESALE MARKUP WAS 17% ON DISTILLED SPIRITS AND 20% ON WINE. 

PURSUANT TO ITS STATUTORY AUTHORITY THE COMMISSION PROMULGATED
REGULATION 25 WHICH GAVE POST EXCHANGES, OFFICERS' CLUBS, SHIP'S
STORES, AND OTHER NONAPPROPRIATED FUND ACTIVITIES OPERATING ON MILITARY
INSTALLATIONS WITHIN MISSISSIPPI THE OPTION OF PURCHASING ALCOHOLIC
BEVERAGES DIRECTLY FROM OUT-OF-STATE DISTILLERS OR FROM THE
COMMISSION.  THE REGULATION REQUIRES THAT ORDERS FROM DISTILLERS BEAR
THE USUAL PRICE MARKUP AS CHARGED BY THE COMMISSION ON ITS SALES, WHICH
THE DISTILLER IN TURN MUST REMIT TO THE COMMISSION OR FACE A FINE,
IMPRISONMENT, OR DELISTING, I.E., WITHDRAWAL OF THE PRIVILEGE OF
DISTRIBUTING ALCOHOLIC BEVERAGES TO THE COMMISSION FOR RESALE IN
MISSISSIPPI.  SEE E.G., MISS.  CODE ANN. SEC. 27 - 71 - 23.  THE
VARIOUS NONAPPROPIATED FUND ACTIVITIES AT THE FOUR MILITARY
INSTALLATIONS IN MISSISSIPPI ALL CHOSE TO PURCHASE THEIR ALCOHOLIC
BEVERAGES DIRECTLY FROM OUT-OF-STATE DISTILLERS, AND THEREBY CONTINUED
THE PRACTICE BEGUNWHEN MISSISSIPPI WAS A "DRY" STATE. 

THE DISTRICT COURT CORRECTLY DETERMINED THAT POST EXCHANGES AND
SIMILAR FACILITIES ARE INSTRUMENTALITIES OF THE UNITED STATES:  "IT IS
CLEAR THAT THE SHIP'S STORES, OFFICERS' CLUBS AND POST EXCHANGES 'AS
NOW OPERATED ARE ARMS OF THE GOVERNMENT DEEMED BY IT ESSENTIAL FOR THE
PERFORMANCE OF GOVERNMENTAL FUNCTIONS . . . AND PARTAKE OF WHATEVER
IMMUNITIES IT MAY HAVE UNDER THE CONSTITUTION AND FEDERAL STATUTES.'" 
378 F.SUPP., AT 562 - 563.  SEE ALSO STANDARD OIL CO. V. JOHNSON, 316
U.S. 481 (1942); CF. PAUL V. UNITED STATES, 371 U.S. 245, 261 (1963). 
THE DISTRICT COURT ALSO CORRECTLY HELD THAT THE MARKUP CONSTITUTES A
TAX ON THE PURCHASES MADE BY THE NONAPPROPRIATED FUND ACTIVITIES FROM
OUT-OF-STATE SUPPLIERS.  THE MARKUP CAN ONLY BE UNDERSTOOD AS AN
"ENFORCED CONTRIBUTION TO PROVIDE FOR THE SUPPORT OF GOVERNMENT," THE
STANDARD DEFINITION OF A TAX.  UNITED STATES V. LA FRANCA, 282 U.S.
568, 572 (1931).  THE DISTRICT COURT HELD, HOWEVER, THAT FEDERAL
IMMUNITY FROM STATE TAXATION EXTENDS ONLY TO "A STATE TAX WHOSE LEGAL,
AS OPPOSED TO PURELY ECONOMIC, INCIDENCE FALLS UPON THE FEDERAL
GOVERNMENT, ITS PROPERTY OR ITS INSTRUMENTS . . . ."  378 F.SUPP., AT
566. 

IN DETERMINING THAT THE LEGAL INCIDENCE OF THE MISSISSIPPI WHOLESALE
MARKUP FELL NOT UPON THE FEDERAL GOVERNMENT BUT UPON THE OUT-OF-STATE
DISTILLERS, THE DISTRICT COURT DEFINED LEGAL INCIDENCE AS "THE LEGALLY
ENFORCEABLE, UNAVOIDABLE LIABILITY FOR NONPAYMENT OF THE TAX."  IBID. 
THAT WAS ERROR.  THE TAX COMMISSION, OF COURSE HAS NOT ATTEMPTED TO
COLLECT THE MARKUP DIRECTLY FROM THE NONAPPROPRIATED FUND ACTIVITIES,
BUT HASINSTEAD COMPELLED OUT-OF-STATE SUPPLIERS TO COLLECT THE MARKUP
FOR IT.  BUT THAT FACT ALONE IS NOT DETERMINATIVE THAT THE MARKUP IS A
TAX ON THE SUPPLIERS RATHER THAN ON THE INSTRUMENTALITIES OF THE UNITED
STATES.  IN FIRST AGRICULTURAL NATIONAL BANK V. TAX COMM'N, 392 U.S.
339 (1968), WE SQUARELY REJECTED THE PROPOSITION THAT THE LEGAL
INCIDENCE OF A TAX FALLS ALWAYS UPON THE PERSON LEGALLY LIABLE FOR ITS
PAYMENT.  MASSACHUSETTS IMPOSED A SALES AND USE TAX ON PURCHASES OF
TANGIBLE PERSONAL PROPRETY, INCLUDING PURCHASES BY NATIONAL BANKS FOR
THEIR OWN USE.  THE STATUTE DIRECTED THAT "'EACH VENDOR IN THIS
COMMONWEALTH SHALL ADD TO THE SALES PRICE AND SHALL COLLECT FROM THE
PURCHASER THE FULL AMOUNT OF THE TAX IMPOSED . . .."  ID., AT 347. 
LIKE THE DISTRICT COURT HERE, THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS STATED:  " THE LEGAL INCIDENCE OF A TAX (IS) . . .
DETERMINED BY 'WHO IS RESPONSIBLE . . . FOR PAYMENT TO THE STATE OF THE
EXACTION.'"  353 MASS. 172, 177, 229 N.E.2D 245, 249 (1967). 
ACCORDINGLY, THE STATE COURT HELD THAT THE LEGAL INCIDENCE OF THE TAX
WAS ON THE VENDOR.  WE RESERVED, STATING:  " IT WOULD APPEAR TO BE
INDISPUTABLE THAT A SALES TAX WHICH BY ITS TERMS MUST BE PASSED ON TO
THE PURCHASER IMPOSES THE LEGAL INCIDENCE OF THE TAX UPON THE
PURCHASER.  . . . THERE CAN BE NO DOUBT FROM THE CLEAR WORDING OF THE
STATUTE THAT THE MASSACHUSETTS LEGISLATURE INTENDED THAT THIS SALES TAX
BE PASSED ON TO THE PURCHASER.  FOR OUR PURPOSES, AT LEAST, THAT INTENT
IS CONTROLLING."  392 U.S., AT 347 - 348.  SEE ALSO GURLEY V. RHODEN,
ANTE, P. 200. 

WE SEE NO DIFFERENCE BETWEEN THIS MARKUP AND A SALES TAX WHICH MUST
BE COLLECTED BY THE SELLER AND REMITTED TO THE STATE.  THE TAX
COMMISSION WOULD DISTINGUISH FIRST AGRICULTURAL BANK ON THE GROUNDTHAT
BECAUSE THE IMMUNITY OF THE NATIONAL BANK FROM STATE TAXATION IN ALL
BUT A FEW CLOSELY DEFINED AREAS WAS CONFERRED BY STATUTE, C. 267, 42
STAT. 1499, AS AMENDED, 12 U.S.C. SEC. 548, THE COURT DID NOT DECIDE
"THE CONSTITUTIONAL QUESTION OF WHETHER TODAY NATIONAL BANKS SHOULD BE
CONSIDERED NONTAXABLE AS FEDERAL INSTRUMENTALITIES."  392 U.S., AT
341.  BUT THE CONTROLLING SIGNIFICANCE OF FIRST AGRICULTURAL BANK FOR
OUR PURPOSES IS THE TEST FORMULATED BY THAT DECISION FOR THE
DETERMINATION WHERE THE LEGAL INCIDENCE OF THE TAX FALLS, NAMELY, THAT
WHERE A STATE REQUIRES THAT ITS SALES TAX BE PASSED ON TO THE PURCHASER
AND BE COLLECTED BY THE VENDOR FROM HIM, THIS ESTABLISHES AS A MATTER
OF LAW THAT THE LEGAL INCIDENCE OF THE TAX FALLS UPON THE PURCHASER. 
/6/ THAT IS PLAINLY THE REQUIREMENT OF REGULATION 25.  REGULATION 25
PROVIDES THAT ALL DIRECT ORDERS BY MILITARY FACILITIES OF ALCOHOLIC
BEVERAGES FROM DISTILLERS "SHALL BEAR THE USUAL WHOLESALE MARKUP IN
PRICE," THAT THE "PRICE OF SUCH ALCOHOLIC BEVERAGES SHALL BE PAID BY
SUCH ORGANIZATIONS DIRECTLY TO THE DISTILLER," AND THAT THE DISTILLER
"SHALL IN TURN REMIT THE WHOLESALE MARKUP" TO THE TAX COMMISSION.  /7/
THE TAX COMMISSION CLEARLY INTENDED--INDEED, THE SCHEME UNAVOIDABLY
REQUIRES--THAT THE OUT-OF-STATE DISTILLERS AND SUPPLIERS PASS ON THE
MARKUP TO THE MILITARY PURCHASERS.  AND TO UNDERSCORE THIS CONCLUSION,
THE DIRECTOR OF THE ALCOHOLIC BEVERAGE CONTROL DIVISION OF THE TAX
COMMISSION INFORMED THE DISTILLERS BY LETTER THAT THE WHOLESALE MARKUP
"MUST BE INVOICED TO THE MILITARY AND COLLECTED DIRECTLY FROM THE
MILITARY (CLUB) OR OTHER AUTHORIZED ORGANIZATION LOCATED ON THE
MILITARY BASE," WARNING THAT ANY DISTILLER WHO SELLS ALCOHOLIC
BEVERAGES TO THE MILITARY WITHOUT "COLLECTING SAID FEE DIRECTLY FROM
SAID MILITARY ORGANIZATION SHALL BE IN VIOLATION OF THE ALCOHOLIC
BEVERAGE CONTROL LAWS AND REGULATIONS ISSUED PURSUANT THERETO," AND
SUBJECT TO THE PENALTIES PROVIDED, INCLUDING DELISTING.  PLAINLY THAT
RULING EXPLICITLY IMPOSES THE LEGAL INCIDENCE OF THE TAX UPON THE
MILITARY.  /8/  KERN-LIMERICK, INC. V. SCURLOCK, 347 U.S. 110 (1954);
AND ALABAMA V. KING & BOOZER, 314 U.S. 1 (1941), BUTTRESS OUR
CONCLUSION.  KERN-LIMERICK HELD UNCONSTITUTIONAL, AS REGARDS SALES TO
THE UNITED STATES, A STATE SALES TAX STATUTE WHICH PURPORTED TO TAX THE
SELLER, BUT PROVIDED THAT THE SELLER "SHALL COLLECT THE TAX LEVIED
HEREBY FROM THE PURCHASER.'"  347 U.S., AT 111.  SIMILARLY, THE ALABAMA
STATUTE IN KING & BOOZER REQUIRED THE SELLER TO PAY THE SALES TAX, BUT
ALSO REQUIRED HIM "TO ADD TO THE SALES PRICE AND COLLECT FROM THE
PURCHASER THE AMOUNT DUE BY THE TAXPAYER ON ACCOUNT OF SAID TAX.'"  314
U.S., AT 7.  WE HELD THAT THE STATUTE, BY REQUIRING THE PASSING ON OF
THE TAX AND ITS COLLECTION FROM THE PURCHASER, PLACED THE LEGAL
INCIDENCE OF THE TAX ON THE PURCHASER. 

WE HOLD, THEREFORE, THAT VIEWING THE MARKUP AS A SALES TAX, THE
LEGAL INCIDENCE OF THAT TAX WAS INTENDED TO REST UPON INSTRUMENTALITIES
OF THE UNITED STATES.  /9/ WE TURN THEREFORE TO CONSIDERATION OF THE
QUESTION WHETHER THE BUCK ACT IS OF ASSISTANCE TO THE TAX COMMISSION IN
ITS ATTEMPT TO ENFORCE REGULATION 25. 

        IV 

THE BUCK ACT WAS ENACTED IN 1940 /10/ TO BAR THE UNITED STATES,
AMONG OTHER THINGS, FROM ASSERTING IMMUNITY FROM STATE SALES AND USE
TAXES ON THE GROUND THAT "THE FEDERAL GOVERNMENT HAS EXCLUSIVE
JURISDICTION OVER THE AREA WHERE THE TRANSACTION OCCURRED."  S.REP. 
NO. 1625, 76TH CONG., 3D SESS., 2 (1940).  SECTION 105(A) OF THE BUCK
ACT PROVIDES: 

     " NO PERSON SHALL BE RELIEVED FROM LIABILITY FOR PAYMENT OF

  COLLECTION OF, OR ACCOUNTING FOR ANY SALES OR USE TAX LEVIED BY

  ANY STATE, OR BY ANY DULY CONSTITUTED TAXING AUTHORITY THEREIN,

  HAVING JURISDICTION TO LEVY SUCH A TAX, ON THE GROUND THAT THE

  SALE OR USE, WITH RESPECT TO WHICHSUCH TAX IS LEVIED, OCCURRED IN

  WHOLE OR IN PART WITHIN A FEDERAL AREA; AND SUCH STATE OR TAXING

  AUTHORITY SHALL HAVE FULL JURISDICTION AND POWER TO LEVY AND

  COLLECT ANY SUCH TAX IN ANY FEDERAL AREA WITHIN SUCH STATE TO THE

  SAME EXTENT AND WITH THE SAME EFFECT AS THOUGH SUCH AREA WAS NOT

  A FEDERAL AREA." 

THE DISTRICT COURT CONCLUDED THAT UNDER THIS SECTION " CONGRESS HAS
LEGISLATIVELY ACCEDED TO MISSISSIPPI'S MARKUP ON . . . WHOLESALE LIQUOR
TRANSACTIONS."  78 F.SUPP., AT 562. 

THE APPLICATION OF SEC. 105(A).  IT PROVIDES THAT SEC. 105(A) "SHALL
NOT BE DEEMED TO AUTHORIZE THE LEVY OR COLLECTION OF ANY TAX ON OR FROM
THE UNITED STATES OR ANY INSTRUMENTALITY THEREOF . . . . " /11/
ALTHOUGH THE DISTRICT COURT RECOGNIZED THAT SEC. 107(A) "LIMITS"  SEC.
105(A), THE COURT HELD THAT SEC. 107(A) WAS INAPPLICABLE IN LIGHT OF
ITS HOLDING THAT THE LEGAL INCIDENCE OF THE TAX WAS ON THE DISTILLERS. 
OUR REVERSAL OFTHE DISTRICT COURT IN THAT RESPECT AND OUR HOLDING THAT
THE LEGAL INCIDENCE OF THE TAX IS UPON THE UNITED STATES PLAINLY BRINGS
SEC. 107(A) INTO PLAY.  THE SECTION CAN ONLY BE READ AS AN EXPLICIT
CONGRESSIONAL PRESERVATION OF FEDERAL IMMUNITY FROM STATE SALES TAXES
UNCONSTITUTIONAL UNDER THE IMMUNITY DOCTRINE ANNOUNCED BY MR. CHIEF
JUSTICE MARSHALL IN MC CULLOCH V. MAYRLAND, 4 WHEAT.  316 (1819). 
"(UNSHAKEN, RARELY QUESTIONED, . . . IS THE PRINCIPLE THAT POSSESSIONS,
INSTITUTIONS, AND ACTIVITIES OF THE FEDERAL GOVERNMENT ITSELF IN THE
ABSENCE OF EXPRESS CONGRESSIONAL CONSENT ARE NOT SUBJECT TO ANY FORM OF
STATE TAXATION."  UNITED STATES V. COUNTY OF ALLEGHENY, 322 U.S. 174,
177 (1944).  SEE ALSO KERN-LIMERICK, INC. V. SCURLOCK, 347 U.S., AT 117
- 118.  /12/  REGULATION 25 IS THEREFORE OUTSIDE THE COVERAGE OF SEC.
105(A) AND THE MARKUP IS UNCONSTITUTIONAL AS A TAX IMPOSED UPON THE
UNITED STATES AND ITS INSTRUMENTALITIES. 

NOR DOES THE TWENTY-FIRST AMENDMENT REQUIRE A DIFFERENT RESULT. 
WHEN THE CASE WAS LAST HERE WE HELD THAT "THE TWENTY-FIRST AMENDMENT
CONFERS NO POWER ON A STATE TO REGULATE--WHETHER BY LICENSING,
TAXATION, OR OTHERWISE--THE IMPORTATION OF DISTILLED SPIRITS INTO
TERRITORY OVER WHICH THE UNITED STATES EXERCISES EXCLUSIVE JURISDICTION
(PURSUANT TO ART. I, SEC. 8, CL. 17, OF THE CONSTITUTION)."  412 U.S.,
AT 375; SEE COLLINS V. YOSEMITE PARK & CURRY CO., 304 U.S. 518, 538
(1938).  CF. JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 140 (1937). 
WE REACH THE SAME CONCLUSION AS TO THE CONCURRENT JURISDICTION BASES TO
WHICH ART. I, SEC. 8, CL. 17, DOES NOT APPLY:  " NOTHING IN THE
LANGUAGE OF THE (TWENTY-FIRST) AMENDMENT NOR IN ITS HISTORY LEADS TO
(THE) EXTRAORDINARY CONCLUSION" THAT THE AMENDMENT ABOLISHED FEDERAL
IMMUNITY WITH RESPECT TO TAXES ON SALES OF LIQUOR TO THE MILITARY ON
BASES WHERE THE UNITED STATES AND MISSISSIPPI EXERCISE CONCURRENT
JURISDICTION.  DEPARTMENT OF REVENUE V. JAMES B. BEAM DISTILLING CO.,
377 U.S. 341, 345 - 346 (1964); HOSTETTER V. IDLEWILD BON VOYAGE LIQUOR
CORP., 377 U.S. 324 (1964).  JAMES BEAM INVOLVED A KENTUCKY TAX UPON
THE IMPORTATION INTO THAT STATE OF WHISKEY PRODUCED IN SCOTLAND AND
TRANSPORTED THROUGH THE UNITED STATES DIRECTLY TO BONDED WAREHOUSES IN
KENTUCKY.  THE COURT HELD THAT THE TAX WAS PROHIBITED BY THE EXPORT
IMPORT CLAUSE OF THE CONSTITUTION, ART. I, SEC. 10, CL. 2, AND THAT THE
AMENDMENT HAD NOT REPEALED THAT CLAUSE: 

     " TO SUSTAIN THE TAX WHICH KENTUCKY HAS IMPOSED IN THIS CASE

  WOULD REQUIRE NOTHING SHORT OF SQUARELY HOLDING THAT THE

  TWENTY-FIRST AMENDMENT HAS COMPLETELY REPEALED THE EXPORT-IMPORT

  CLAUSE SO FAR AS INTOXICANTS ARE CONCERNED.  NOTHING IN THE

  LANGUAGE OF THE AMENDMENT NOR IN ITS HISTORY LEADS TO SUCH AN

  EXTRAORDINARY CONCLUSION.  THIS COURT HAS NEVER INTIMATED SUCH A

  VIEW, AND NOW THAT THE CLAIM FOR THE FIRST TIME IS SQUARELY

  PRESENTED, WE EXPRESSLY REJECT IT."  377 U.S., AT 345 - 346. 

HOSTETTER HELD THAT THE TWENTY-FIRST AMENDMENT DID NOT SUPERSEDE THE
COMMERCE CLAUSE, ART. 1, SEC. 8, CL. 3, SO AS TO PERMIT THE STATE OF
NEW YORK TO PROHIBIT THE SALE OF LIQUOR, UNDER THE SUPERVISION OF
UNITED STATES CUSTOMS, TO DEPARTING INTERNATIONAL AIRLINE PASSENGERS. 
WE SAID THAT "(SUCH A CONCLUSION WOULD BE PATENTLY BIZARRE AND IS
DEMONSTRABLY INCORRECT."  377 U.S., AT 332.  SIMILARLY, IT IS A
"PATENTLY BIZARRE" AND "EXTRAORDINARY CONCLUSION" TO SUGGEST THAT THE
TWENTY-FIRST AMENDMENT ABOLISHED FEDERAL IMMUNITY AS RESPECTS TAXES ON
SALES TO THE BASES WHERE THE UNITED STATES AND MISSISSIPPI EXERCISE
CONCURRENT JURISDICTION, AND "NOW THAT THE CLAIM FOR THE FIRST TIME IS
SQUARELY PRESENTED, WE EXPRESSLY REJECT IT." 

                                REVERSED. 

/1/ REGULATION 25 PROVIDES: 

" POST EXCHANGES, SHIP STORES, AND OFFICERS' CLUBS LOCATED ON
MILITARY RESERVATIONS AND OPERATED BY MILITARY PERSONNEL (INCLUDING
THOSE OPERATED BY THE NATIONAL GUARD) SHALL HAVE THE OPTION OF ORDERING
ALCOHOLIC BEVERAGES DIRECT FROM THE DISTILLER OR FROM THE ALCOHOLIC
BEVERAGE CONTROL DIVISION OF THE STATE TAX COMMISSION.  IN THE EVENT AN
ORDER IS PLACED BY SUCH ORGANIZATION DIRECTLY WITH A DISTILLER, A COPY
OF SUCH ORDER SHALL BE IMMEDIATELY MAILED TO THE ALCOHOLIC BEVERAGE
CONTROL DIVISION OF THE STATE TAX COMMISSION. 

" ALL ORDERS OF SUCH ORGANIZATIONS SHALL BEAR THE USUAL WHOLESALE
MARKUP IN PRICE BUT SHALL BE EXEMPT FROM ALL STATE TAXES.  THE PRICE OF
SUCH ALCOHOLIC BEVERAGES SHALL BE PAID BY SUCH ORGANIZATIONS DIRECTLY
TO THE DISTILLER, WHICH SHALL IN TURN REMIT THE WHOLESALE MARKUP TO THE
ALCOHOLIC BEVERAGE CONTROL DIVISION OF THE STATE TAX COMMISSION MONTHLY
COVERING SHIPMENTS MADE FOR THE PREVIOUS MONTH." 

/2/ THE UNITED STATES ACQUIRED EXCLUSIVE JURISDICTION OVER THE LANDS
COMPOSING KEESLER AIR FORCE BASE UNDER THE TERMS OF SEC. 1, 84 STAT.
835, 40 U.S.C. SEC. 255, IN A SERIES OF LETTERS BETWEEN THE GOVERNOR OF
MISSISSIPPI AND THE SECRETARY OF WAR.  ON JANUARY 9, 1945, SECRETARY OF
WAR STIMSON WROTE GOVERNOR BAILEY ACKNOWLEDGING THE ACQUISITION OF
EXCLUSIVE JURISDICTION AS REQUIRED BY SEC. 255:  "  ACCORDINGLY, NOTICE
IS HEREBY GIVEN THAT THE UNITED STATES ACCEPTS EXCLUSIVE JURISDICTION
OVER ALL LANDS ACQUIRED BY IT FOR MILITARY PURPOSES WITHIN THE STATE OF
MISSISSIPPI, TITLE TO WHICH HAS HERETOFORE VESTED IN THE UNITED STATES,
AND OVER WHICH EXCLUSIVE JURISDICTION HAS NOT HERETOFORE OBTAINED."  IN
1942 AND 1943, THE SECRETARY OF THE NAVY FILED DECLARATIONS OF TAKING
IN THREE SEPARATE ACTIONS IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI TO ACQUIRE THE LANDS FOR THE NAVAL
CONSTRUCTION BATTALION CENTER.  IN ACCORDANCE WITH THE REQUIREMENT OF
SEC. 255, THE DEPARTMENT OF THE NAVY FORMALLY ACCEPTED EXCLUSIVE
JURISDICTIONOVER THESE LANDS IN TWO LETTERS TO THE GOVERNOR DATED
DECEMBER14, 1942, AND JANUARY 6, 1944. 

/3/ THE PARTIES STIPULATED THAT THE AMOUNT OF MARKUPS PAID BY
NONAPPROPRIATED-FUND ACTIVITIES ON THE FOUR MILITARY INSTALLATIONS FROM
SEPTEMBER 1966 THROUGH JULY 31, 1971, TOTALED $648,421.92.  AT ORAL
ARGUMENT, COUNSEL FOR THE UNITED STATES ESTIMATED THAT BY NOW THIS
AMOUNT HAS DOUBLED.  TR. OF ORAL ARG. 6. 

/4/ ARTICLE I, SEC. 8, CL. 17, PROVIDES: 

". . . CONGRESS SHALL HAVE POWER . . . (TO EXERCISE EXCLUSIVE
LEGISLATION . . . OVER ALL PLACES PURCHASED BY THE CONSENT OF THE
LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION
OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL
BUILDINGS." 

/5/ THE DISTRICT COURT WAS ALSO DIRECTED ON REMAND TO DETERMINE THE
MERITS OF THE GOVERNMENT'S ARGUMENTTHAT REGULATION 25 WAS INVALID UNDER
THE SUPREMACY CLAUSE BECAUSE IT CONSTITUTED AN ATTEMPT BY THE STATE TO
INTERFERE WITH FEDERAL PROCUREMENT REGULATIONS AND POLICY, SEE 32 CFR
SEC. 261.4(C) (1974), ESTABLISHED BY THE SECRETARY OF DEFENSE PURSUANT
TO AUTHORITY GRANTED HIM BY CONGRESS.  THE DISTRICT COURT REJECTED THE
ARGUMENT AS WITHOUT MERIT.  378 F.SUPP.  558, 570 - 573 (1974).  IN
LIGHT OF OUR DECISION, WE HAVE NO OCCASION TO DETERMINE WHETHER THE
DISTRICT COURT WAS CORRECT. 

/6/ SEE ALSO FEDERAL LAND BANK V. BISMARCK LUMBER CO., 314 U.S. 95
(1941).  NORTH DAKOTA IMPOSED A SALES TAX AND REQUIRED RETAILERS TO ADD
THE TAX TO THE SALES PRICE OF GOODS, "'AND WHEN ADDED SUCH TAXES SHALL
CONSTITUTE A PART OF SUCH PRICE OR CHARGE, SHALL BE A DEBT FROM
CONSUMER OR USER TO RETAILER UNTIL PAID, AND SHALL BE RECOVERABLE AT
LAW IN THE SAME MANNER AS OTHER DEBTS.  . . .'"  ID., AT 97.  A LUMBER
COMPANY ATTEMPTED TO COLLECT THIS TAX FROM A NATIONAL BANK.  BISMARCK
HELD THAT THE REQUIREMENT THAT THE VENDOR PASS ON THE TAX PLACED THE
LEGAL INCIDENCE ON THE PURCHASER, WHICH WAS CONGRESSIONALLY IMMUNIZED
FROM STATE TAXATION.  ID., AT 99.  CF. NATIONAL BELLAS HESS, INC. V.
DEPARTMENT OF REVENUE, 386 U.S., 753, 757 N. 9 (1967). 

/7/ THE MISSISSIPPI STATE COURTS HAVE NOT PASSED UPON THE MATTER OF
THE LEGAL INCIDENCE OF THE TAX UNDER REGULATION 25, CF. AMERICAN OIL
CO. V. NEILL, 380 U.S. 451, 455 - 456 (1965); GURLEY V. RHODEN, ANTE,
P. 200, AND, IN ANY EVENT, "THE DUTY RESTS ON THIS COURT TO DECIDE FOR
ITSELF FACTS OR CONSTRUCTIONS UPON WHICH FEDERAL CONSTITUTIONAL ISSUES
REST."  KERN-LIMERICK, INC. V. SCURLOCK, 347 U.S. 110, 121 (1954). 

/8/ THE DISTRICT COURT'S VIEW THAT BECAUSE "MISSISSIPPI'S ABC
(ALCOHOLIC BEVERAGE CONTROL) ACT AND REGULATIONS DO NOT IMPOSE ANY
SANCTIONS ON THE VENDOR IF HE ABSORBS ALL OR ANY PORTION OF THE
MARKUP'S ECONOMIC BURDEN," THE REGULATION DOES NOT ACTUALLY REQUIRE THE
PASSING ON OF THE TAX, 378 F.SUPP., AT 567, IS WITHOUT MERIT BY VIRTUE
OF AGRICULTURE BANK.  " WE CANNOT ACCEPT THE REASONING OF THE COURT
BELOW THAT SIMPLY BECAUSE THERE IS NO SANCTION AGAINST A VENDOR WHO
REFUSES TO PASS ON THE TAX (ASSUMING THIS IS TRUE), THIS MEANS THE TAX
IS ON THE VENDOR."  392 U.S., AT 348.  INDEED, THE TAX COMMISSION
LETTER TO THE DISTILLERS THREATENS SANCTIONS:  "ANY SUPPLIER WHO SHIPS
OR SELLS ALCOHOLIC BEVERAGES TO MILITARY ORGANIZATIONS LOCATED WITHIN
THE BOUNDARIES OF MISSISSIPPI WITHOUT . . .  COLLECTING SAID FEE
DIRECTLY FROM THE SAID MILITARY ORGANIZATION SHALL BE IN VIOLATION" OF
THE STATUTE AND SUBJECT TO ITS PENALTIES, INCLUDING DELISTING. 
FINALLY, EVEN IN THE ABSENCE OF THIS CLEAR STATEMENT OF THE TAX
COMMISSION'S INTENTIONS, OBVIOUSLY ECONOMIC REALITIES COMPELLED THE
DISTILLERS TO PASS ON THE ECONOMIC BURDEN OF THE MARKUP. 

/9/ POLAR CO. V. ANDREWS, 375 U.S. 361 (1964), RELIED UPON BY
APPELLEES, IS NO CONTRARY.  THAT CASE INVOLVED A FLORIDA TAX UPON THE
SELLER'S ACTIVITY OF PROCESSING OR BOTTLING MILK FOR SALE ON ENCLAVES
OVER WHICH THE FEDERAL GOVERNMENT EXERCISED EXCLUSIVE JURISDICTION. 
THE TAX WAS NOT A SALES TAX AND THERE WAS NO REQUIREMENT THAT THE
AMOUNT OF THE TAX BE PASSED ON TO THE FEDERAL PURCHASERS.  SEE ALSO
GURLEY V. RHODEN, ANTE, P. 200, HOLDING THAT THE LEGAL INCIDENCE OF
FEDERAL AND STATE EXCISE TAXES ON GASOLINE WAS ON THE PRODUCER
DISTRIBUTOR OF THE GASOLINE WHO WAS NOT REQUIRED TO PASS ON THE AMOUNT
OF THE TAX TO HIS PURCHASERS.  AMERICAN OIL CO. V. NEILL, 380 U.S. 451
(1965); NORTON CO., V. DEPARTMENT OF REVENUE, 340 U.S. 534 (1951). 
/10/ ACT OF OCT. 9, 1940, C. 787, 54 STAT. 1059, CODIFIED BY ACT OF
JULY 30, 1947, SEC. 105 ET SEQ., 61 STAT. 644. 

/11/ THE LEGISLATIVE HISTORY ASSOCIATED WITH THE AMENDMENT OF SEC.
107 IN 1954 DESCRIBES THE PURPOSE OF THE SECTION AS FOLLOWS: "  SECTION
107 SETS UP CERTAIN EXCEPTIONS TO THE POWER OF STATES TO TAX IN
(FEDERAL) AREAS . . . ."  SEE H.R.REP.  NO 1981, 83D CONG., 2D SESS,. 2
(1954).  SEE ALSO S.REP.  NO. 2498, 83D CONG.,2D SESS., 3 (1954). 

SHALL NOT BE DEEMED TO AUTHORIZE THE LEVY OR COLLLECTION OF ANY TAX ON
OR FROM THE UNITED STATES OR ANY INSTRUMENTALITY THEREOF, OR THE LEVY
OR COLLECTION OF ANY TAX WITH RESPECT TO SALE, PURCHASE, STORAGE, OR
USE OF TANGIBLE PERSONAL PROPERTY SOLD BY THE UNITED STATES OR ANY
INSTRUMENTALITY THEREOF TO ANY AUTHORIZED PURCHASER," 4 U.S.C. SEC.
107(A).  AN "AUTHORIZED PURCHASER" IS DEFINED IN SEC. 107(B) AS ONE WHO
BUYS GOODS FROM MILITARY COMMISSARIES, SHIP'S STORES, OR SIMILAR
VOLUNTARY UNINCORPORATED ORGANIZATIONS.  4 U.S.C. SEC. 107(B), AS
AMENDED, ACT OF SEPT. 3, 1954, SEC.4, 68 STAT. 1227.  THERE IS NO
QUESTION THAT THE PORTION OF SEC. 107(A) DEALING WITH A TAX ON OR FROM
THE UNITED STATES OR ANY INSTRUMENTALITY THEREOF WAS INTENDED TO BE
DISTINCT FROM THE REMAINING PORTION OF THE SECTION DEALING WITH TAXES
ON GOODS SOLD TO AN "AUTHORIZED PURCHASER."  SEE S.REP.  NO. 1625, 76TH
CONG., 3D SESS., 3 - 4 (1940). 

/12/ POLAR CO. V. ANDREWS, SUPRA,DOES NOT SUPPORT THE TAX
COMMISSION'S ARGUMENT UNDER THE BUCK ACT.  IN POLAR, THE COURT REJECTED
AN ATTACK BY MILK PRODUCERS UPON A FLORIDA GALLONAGE TAX IMPOSED UPON
MILK DISTRIBUTED BY THEM, INCLUDING MILK SOLD TO MILITARY BASES LOCATED
WITHIN THE STATE.  AS TO THE SALES TO THE MILITARY BASES, OVER WHICH
THE UNITED STATES EXERCISED EXCLUSIVE JURISDICTION, THE COURT INDICATED
THAT CONSENT TO THE IMPOSITION OF THE TAX WAS TO BE FOUND IN SEC. 105
OF THE BUCK ACT.  BUT THE COURT SPECIFICALLY DISTINGUISHED SITUATIONS,
SUCH AS THAT PRESENTED HERE,WHERE THE TAX FALLS "UPON THE FACILITIES OF
THE UNITED STATES OR UPON ACTIVITIES CONDUCTED WITHIN THESE FACILITIES
. . ."  375 U.S., AT 382.  RATHER, IT POINTED OUT THAT THE "INCIDENCE
OF THE TAX APPEARS TO BE UPON THE ACTIVITY OF PROCESSING OR BOTTLING
MILK IN A PLANT LOCATED WITHIN FLORIDA, AND NOT UPON WORK PERFORMED ON
A FEDERAL ENCLAVE OR UPON THE SALE AND DELIVERY OF MILK OCCURRING
WITHIN THE BOUNDARIES OF FEDERAL PROPERTY."  IBID. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE REHNQUIST DISSENT FOR THE
REASONS STATED IN THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN
UNITED STATES V. STATE TAX COMM'N OF MISSISSIPPI, 412 U.S. 363, 381 -
390 (1973). 

STUART A. SMITH ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
CRAMPTON, MARK L. EVANS, JONATHAN S. COHEN, AND RICHARD FARBER. 

ROBERT L. WRIGHT ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS A.F. SUMMER, ATTORNEY GENERAL OF MISSISSIPPI. 

ANDREW P. MILLER, ATTORNEY GENERAL, ANTHONY F. TROY, DEPUTY ATTORNEY
GENERAL, AND WILLIAM P. BAGWELL, JR., ASSISTANT ATTORNEY GENERAL, FILED
A BRIEF FOR THE COMMONWEALTH OF VIRGINIA AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :














CONNELL CO. V. PLUMBERS & STEAMFITTERS, 421 U.S. 616 


       CONNELL CONSTRUCTION CO., INC V. PLUMBERS & STEAMFITTERS

           LOCAL UNION NO. 100, UNITED ASSOCIATION OF JOURNEYMEN &

           APPRENTICES OF THE PLUMBING & PIPEFITTING INDUSTRY OF

           THE UNITED STATES AND CANADA, AFL- CIO

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

NO. 73 - 1256.  ARGUED NOVEMBER 19, 1974__ DECIDED

JUNE 2, 1975; 483 F.2D 1154, REVERSED IN PART AND REMANDED. 


    RESPONDENT UNION, REPRESENTINGTHE PLUMBING AND MECHANICAL

  TRADES IN DALLAS, WAS A PARTY TO A MULTIEMPLOYER

 COLLECTIVE-BARGAINING AGREEMENT WITH A MECHANICAL CONTRACTORS

  ASSOCIATION.  THE AGREEMENT CONTAINED A "MOST FAVORED NATION"

  CLAUSE, BY WHICH THE UNION AGREED THAT IF IT GRANTED A MORE

  FAVORABLE CONTRACT TO ANY OTHER EMPLOYER IT WOULD EXTEND THE SAME

  TERMS TO ALL ASSOCIATION MEMBERS.  RESPONDENT PICKETED

  PETITIONER, A GENERAL BUILDING CONTRACTOR WHICH SUBCONTRACTED ALL

  PLUMBING AND MECHANICAL WORK AND HAD NO EMPLOYEES RESPONDENT

  WISHED TO REPRESENT, TO SECURE A CONTRACT WHEREBY PETITIONER

  AGREED TO SUBCONTRACT SUCH WORK ONLY TO FIRMS THAT HAD A CURRENT

  CONTRACT WITH RESPONDENT.  PETITIONER SIGNED UNDER PROTEST AND,

 CLAIMING THT THE AGREEMENT VIOLATED SECS. 1 AND 2 OF THE SHERMAN

  ACT AND STATE ANTITRUST LAWS, BROUGHT SUIT AGAINST RESPONDENT

  SEEKING DECLARATORY AND INJUNCTIVE RELIEF.  BY THE TIME THIS CASE

  WENT TO TRIAL, RESPONDENT HAD SECURED IDENTICAL AGREEMENTS FROM

  OTHER GENERAL CONTRACTORS AND WAS SELECTIVELY PICKETING THOSE WHO

  RESISTED.  THE DISTRICT COURT HELD (1) THAT THE SUBCONTRACTING

  AGREEMENT WAS EXEMPT FROM FEDERAL ANTITRUST LAWS BECAUSE IT WAS

  AUTHORIZED BY THE FIRST PROVISIO IN SEC. 8(E) OF THE NATIONAL

  LABOR RELATIONS ACT (NLRA), WHICH EXEMPTS JOBSITE CONTRACTING

  AGREEMENTS IN THE CONSTRUCTION INDUSTRY FROM THE STATUTORY BAN ON

  SECONDARY AGREEMENTS REQUIRING EMPLOYERS TO CEASE DOING BUSINESS

  WITH OTHER PERSONS, AND (2) THAT FEDERAL LABOR LEGISLATION

  PRE-EMPTED THE STATE'S ANTITRUST LAWS.  THE COURT OF APPEALS

  AFFIRMED.  HELD: 

1.  RESPONDENT UNION'S AGREEMENT WITH PETITIONER IS NOT

ENTITLED TO THE NONSTATUTORY EXEMPTION FROM THE FEDERAL ANTITRUST

  LAWS RECOGNIZED IN MEAT CUTTERS V. JEWEL TEA CO., 381 U.S. 676,

  BECAUSE IT IMPOSED DIRECT RESTRAINTS ON COMPETITION AMONG

  SUBCONTRACTORS THAT WOULD NOT HAVE RESULTED FROM THE ELIMINATON

  OF COMPETITION BASED ON DIFFERENCES IN WAGES AND WORKING

  CONDITIONS.  PP. 621 - 626. 

     (A) THE AGREEMENT INDISCRIMINATELY EXCLUDED NONUNION

  SUBCONTRACTORS FROM A PORTION OF THE MARKET, EVEN IF THEIR

  COMPETITIVE ADVANTAGES WERE DERIVED FROM EFFICIENT OPERATING

  METHODS RATHER THAN SUBSTANDARD WAGES AND WORKING CONDITIONS.  P.

  623. 

     (B) THE "MOST-FAVORED NATION" CLAUSE IN THE MULTIEMPLOYER

  BARGAINING AGREEMENT, BY INSURING THAT NO UNION SUBCONTRACTOR

  WOULD HAVE A COMPETITIVE ADVANTAGEON ANY MATTERS COVERED BY THE

  AGREEMENT, GAVE RESPONDENT'S AGREEMENTS WITH PETITIONER AND OTHER

GENERAL CONTRACTORS THE EFFECT OF CREATING A SHELTERED MARKET FOR

  UNION SUBCONTRACTORS IN THAT PORTION OF THE SUBCONTRACTING MARKET

  CONTROLLED BY SIGNATORY GENERAL CONTRACTORS.  PP. 623 - 624. 

     (C) SINCE THE AGREEMENT DID NOT SIMPLY PROHIBIT SUBCONTRACTING

  TO ANY NONUNION FIRM BUT TO ANY FIRM THAT DID NOT HAVE A CONTRACT

  WITH RESPONENT, IT GAVE THE UNION COMPLETE CONTROL OVER

  SUBCONTRACT WORK OFFERED BY GENERAL CONTRACTORS THAT HAD SIGNED

  THE AGREEMENT AND EMPOWERED THE UNION TO EXCLUDE CERTAIN

  SUBCONTRACTORS FROM THAT PORTION OF THE MARKET BY REFUSING TO

DEAL WITH THEM.  PP. 624 - 625. 

     2.  THE FIRST PROVISIO TO SEC. 8(E) OF THE NLRA DOES NOT

  SHELTER THE CHALLENGED AGREEMENT FROM THE FEDERAL ANTITRUST LAWS,

  SINCE THAT PROVISIO WAS NOT INTENDED TO AUTHORIZE SUBCONTRACTING

AGREEMENTS THAT ARE NEITHER WITHIN THE CONTEXT OF A

  COLLECTIVE-BARGAINING RELATIONSHIP NOR LIMITED TO ANY PARTICULAR

  JOBSITE.  HERE RESPONDENT, WHICH HAS NEVER SOUGHT TO REPRESENT

  PETITIONER'S EMPLOYEES OR BARGAIN WITH PETITIONER ON THEIR

  BEHALF, MAKES NO CLAIM TO BE PROTECTING THOSE EMPLOYEES FROM

  WORKING WITH NONUNION MEN; THE AGREEMENT WAS NOT LIMITED TO ANY

  PARTICULAR JOBSITE; AND RESPONDENT CONCEDEDLY SOUGHT THE

  AGREEMENT SOLELY AS A MEANS OF PRESSURING DALLAS MECHANICAL

  SUBCONTRACTORS TO RECOGNIZE IT AS THEIR EMPLOYEES'

  REPRESENTATIVE.  PP. 626 - 633. 

     3.  THERE IS NO INDICATION THAT CONGRESS IN THE TAFT-HARTLEY

  AMENDMENTS OR LATER MEANT TO MAKE NLRA REMEDIES FOR "HOT-CARGO"

  AGREEMENTS EXCLUSIVE, THUS PRECLUDING LIABILITY FOR SUCH

  AGREEMENTS UNDER THE ANTITRUST ACTS.  PP. 633 - 634. 

     4.  THE AGREEMENT IS NOT SUBJECT TO THE STATE ANTITRUST LAWS,

  THE USE OF WHICH TO REGULATE UNION ACTIVITIES IN AID OF UNION

  ORGANIZATION WOULD RISK SUBSTANTIAL CONFLICT WITH POLICIES

  CENTRAL TO FEDERAL LABOR LAW.  PP. 635 - 637. 

     5.  WHETHER THE SUBCONTRACTING AGREEMENT VIOLATED THE SHERMAN

  ACT, AN ISSUE NOT FULLY BRIEFED OR ARGUED IN THIS COURT, MUST BE

  DECIDED ON REMAND.  P. 637. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 638.  STEWART,

  J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND

  MARSHALL, JJ., JOINED, POST, P. 638. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE BUILDING TRADES UNION IN THIS CASE SUPPORTED ITS EFFORTS TO
ORGANIZE MECHANICAL SUBCONTRACTORS BY PICKETING CERTAIN GENERAL
CONTRACTORS, INCLUDING PETITIONER.  THE UNION'S SOLE OBJECTIVE WAS TO
COMPEL THE GENERAL CONTRACTORS TO AGREE THAT IN LETTING SUBCONTRACTS
FOR MECHANICAL WORK THEY WOULD DEAL ONLY WITH FIRMS THAT WERE PARTIES
TO THE UNION'S CURRENT COLLECTIVE-BARGAINING AGREEMENT.  THE UNION
DISCLAIMED ANY INTEREST IN PRESENTING THE GENERAL CONTRACTORS'
EMPLOYEES.  IN THIS CASE THE PICKETING SUCCEEDED, AND PETITIONER SEEKS
TO ANNUL THE RESULTING AGREEMENT AS AN ILLEGAL RESTRAINT ON COMPETITION
UNDER FEDERAL AND STATE LAW.  THE UNION CLAIMS IMMUNITY FROM FEDERAL
ANTITRUST STATUTES AND ARGUES THAT FEDERAL LABOR REGULATION PRE-EMPTS
STATE LAW. 

        I 

LOCAL 100 IS THE BARGAINING REPRESENTATIVE FOR WORKERS IN THE
PLUMBING AND MECHANICAL TRADES IN DALLAS.  WHEN THIS LITIGATION BEGAN,
IT WAS PARTY TO A MULTIEMPLOYER BARGAINING AGREEMENT WITH THE
MECHANICAL CONTRACTORS ASSOCIATION OF DALLAS, A GROUP OF ABOUT 75
MECHANICAL CONTRACTORS.  THAT CONTRACT CONTAINED A "MOST FAVORED
NATION" CLAUSE, BY WHICH THE UNION AGREED THAT IF IT GRANTED A MORE
FAVORABLE CONTRACT TO ANY OTHER EMPLOYER IT WOULD EXTEND THE SAME TERMS
TO ALL MEMBERS OF THE ASSOCIATION. 

CONNELL CONSTRUCTION CO. IS A GENERAL BUILDING CONTRACTOR IN
DALLAS.  IT OBTAINS JOBS BY COMPETITIVE BIDDING AND SUBCONTRACTS ALL
PLUMBING AND MECHANICAL WORK.  CONNELL HAS FOLLOWED A POLICY OF
AWARDING THESE SUBCONTRACTS ON THE BASIS OF COMPETITIVE BIDS, AND IT
HAS DONE BUSINESS WITH BOTH UNION AND NONUNION SUBCONTRACTORS. 
CONNELL'S EMPLOYEES ARE REPRESENTED BY VARIOUS BUILDING TRADE UNIONS. 
LOCAL 100 HAS NEVER SOUGHT TO REPRESENT THEM OR TO BARGAIN WITH CONNELL
ON THEIR BEHALF. 

IN NOVEMBER 1970, LOCAL 100 ASKED CONNELL TO AGREE THAT IT WOULD
SUBCONTRACT MECHANICAL WORK ONLY TO FIRMS THAT HAD A CURRENT CONTRACT
WITH THE UNION.  IT DEMANDED THAT CONNELL SIGN THE FOLLOWING
AGREEMENT: 

     " WHEREAS, THE CONTRACTOR AND THE UNION ARE ENGAGED IN THE
CONSTRUCTION INDUSTRY, AND 

     " WHEREAS, THE CONTRACTOR AND THE UNION DESIRE TO MAKE AN

  AGREEMENT APPLYING IN THE EVENT OF SUBCONTRACTING IN ACCORDANCE

  WITH SECTION 8(E) OF THE LABOR-MANAGEMENT RELATIONS ACT; 

" WHEREAS, IT IS UNDERSTOOD THAT BY THIS AGREEMENT THE CONTRACTOR
DOESD NOT GRANT, NOR DOES THE UNION SEEK, RECOGNITION AS THE COLLECTIVE
BARGAINING REPRESENTATIVE OF ANY EMPLOYEES OF THE SIGNATORY CONTRACTOR;
AND 

     " WHEREAS, IT IS FURTHER UNDERSTOOD THAT THE SUBCONTRACTING

LIMITATION PROVIDED HEREIN APPLIES ONLY TO MECHANICAL WORK WHICH

  THE CONTRACTOR DOES NOT PERFORM WITH HIS OWN EMPLOYEES BUT

  UNIFORMLY SUBCONTRACTS TO OTHER FIRMS; 

" THEREFORE, THE CONTRACTOR AND THE UNION MUTUALLY AGREE WITH

  RESPECT TO WORK FALLING WITHIN THE SCOPE OF THIS AGREEMENT THAT

  IS TO BE DONE AT THE SITE OF CONSTRUCTION, ALTERATION, PAINTING

  OR REPAIR OF ANY BUILDING, STRUCTURE, OR OTHER WORKS, THAT (IF)

  THE CONTRACTOR SHOULD CONTRACT OR SUBCONTRACT ANY OF THE

  AFORESAID WORK FALLING WITHIN THE NORMAL TRADE JURISDICTION OF

  THE UNION, SAID CONTRACTOR SHALL CONTRACT OR SUBCONTRACT SUCH

  WORK ONLY TO FIRMS THAT ARE PARTIES TO AN EXECUTED, CURRENT

  COLLECTIVE BARGAINING AGREEMENT WITH LOCAL UNION 100 OF THE

  UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING

  AND PIPEFITTING INDUSTRY." 

WHEN CONNELL REFUSED TO SIGN THIS AGREEMENT, LOCAL 100 STATIONED A
SINGLE PICKET AT ONE OF CONNELL'S MAJOR CONSTRUCTION SITES.  ABOUT 150
WORKERS WALKED OFF THE JOB, AND CONSTRUCTION HALTED.  CONNELL FILED
SUIT IN STATE COURT TO ENJOIN THE PICKETING AS A VIOLATION OF TEXAS
ANTITRUST LAWS.  LOCAL 100 REMOVED THE CASE TO FEDERAL COURT.  CONNELL
THEN SIGNED THE SUBCONTRACTING AGREEMENT UNDER PROTEST.  IT AMENDED ITS
COMPLAINT TO CLAIM THAT THE AGREEMENT VIOLATED SECS. 1 AND 2 OF THE
SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. SECS. 1 AND 2, AND WAS
THEREFORE INVALID.  CONNELL SOUGHT A DECLARATION TO THIS EFFECT AND AN
INJUNCTION AGAINST ANY FURTHER EFFORTS TO FORCE IT TO SIGN SUCH AN
AGREEMENT. 

BY THE TIME THE CASE WENT TO TRIAL, LOCAL 100 HAD SUBMITTED
IDENTICAL AGREEMENTS TO A NUMBER OF OTHER GENERAL CONTRACTORS IN
DALLAS.  FIVE OTHERS HAD SIGNED, AND THE UNION WAS WAGING A SELECTIVE
PICKETING CAMPAIGN AGAINST THOSE WHO RESISTED. 

THE DISTRICT COURT HELD THAT THE SUBCONTRACTING AGREEMENT WAS EXEMPT
FROM FEDERAL ANTITRUST LAWS BECAUSE IT WAS AUTHORIZED BY THE
CONSTRUCTION INDUSTRY PROVISO TO SEC. 8(E) OF THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 452, AS ADDED, 73 STAT. 543, 29 U.S.C. SEC.
158(E).  THE COURT ALSO HELD THAT FEDERAL LABOR LEGISLATION PRE-EMPTED
THE STATE'S ANTITRUST LAWS.  8 L.R.R.M. 3012 (ND TEX. 1971).  THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED, 483 F.2D 1154 (1973), WITH
ONE JUDGE DISSENTING.  IT HELD THAT LOCAL 100'S GOAL OF ORGANIZING
NONUNION SUBCONTRACTORS WAS A LEGITIMATE UNION INTEREST AND THAT ITS
EFFORTS TOWARD THAT GOAL WERE THEREFORE EXEMPT FROM FEDERAL ANTITRUST
LAWS.  ON THE SECONDISSUE, IT HELD THAT STATE LAW WAS PRE-EMPTED UNDER
SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959).  WE
GRANTED CERTIORARI ON CONNELL'S PETITION.  416 U.S. 981 (1974).  WE
REVERSE ON THE QUESTION OF FEDERAL ANTITRUST IMMUNITY AND AFFIRM THE
RULING ON STATE LAW PRE-EMPTION. 

        II 

THE BASIC SOURCES OF ORGANIZED LABOR'S EXEMPTIONS FROM FEDERAL
ANTITRUST LAWS ARE SECS. 6 AND 20 OF THE CLAYTON ACT, 38 STAT. 731 AND
738, 15 U.S.C. SEC. 17 AND 29 U.S.C. SEC. 52, AND THE NORRIS-LA GUARDIA
ACT, 47 STAT. 70, 71, AND 73, 29 U.S.C. SECS. 104, 105, AND 113.  THESE
STATUTES DECLARE THAT LABOR UNIONS ARE NOT COMBINATIONS OR CONSPIRACIES
IN RESTRAINT OF TRADE, AND EXEMPT SPECIFIC UNION ACTIVITIES, INCLUDING
SECONDARY PICKETING AND BOYCOTTS, FROM THE OPERATION OF THE ANTITRUST
LAWS.  SEE UNITED STATES V. HUTCHESON, 312 U.S. 219 (1941).  THEY DO
NOT EXEMPT CONCERTED ACTION OR AGREEMENTS BETWEEN UNIONS AND NONLABOR
PARTIES.  MINE WORKERS V. PENNINGTON, 381 U.S. 657, 662 (1965).  THE
COURT HAS RECOGNIZED, HOWEVER, THAT A PROPER ACCOMMODATION BETWEEN THE
CONGRESSIONAL POLICY FAVORING COLLECTIVE BARGAINING UNDER THE NLRA AND
THE CONGRESSIONAL POLICY FAVORING FREE COMPETITION IN BUSINESS MARKETS
REQUIRES THAT SOME UNION-EMPLOYER AGREEMENTS BE ACCORDED A LIMITED
NONSTATUTORY EXEMPTION FROM ANTITRUST SANCTIONS.  MEAT CUTTERS V. JEWEL
TEA CO., 381 U.S. 676 (1965). 

THE NONSTATUTORY EXEMPTION HAS ITS SOURCE IN THE STRONG LABOR POLICY
FAVORING THE ASSOCIATION OF EMPLOYEES TO ELIMINATE COMPETITION OVER
WAGES AND WORKING CONDITIONS.  UNION SUCCESS IN ORGANIZING WORKERS AND
STANDARDIZING WAGES ULTIMATELY WILL AFFECT PRICE COMPETITION AMONG
EMPLOYERS, BUT THE GOALS OF FEDERAL LABOR LAW NEVER COULD BE ACHIEVED
IF THIS EFFECT ON BUSINESS COMPETITION WERE HELD A VIOLATION OF THE
ANTITRUST LAWS.  THE COURT THEREFORE HAS ACKNOWLEDGED THAT LABOR POLICY
REQUIRES TOLERANCE FOR THE LESSENING OF BUSINESS COMPETITION BASED ON
DIFFERENCES IN WAGES AND WORKING CONDITIONS.  SEE MINE WORKERS V.
PENNINGTON, SUPRA, AT 666; JEWEL TEA, SUPRA, AT 692 - 693 (OPINION OF
WHITE, J.).  LABOR POLICY CLEARLY DOES NOT REQUIRE, HOWEVER, THAT A
UNION HAVE FREEDOM TO IMPOSE DIRECT RESTRAINTS ON COMPETITION AMONG
THOSE WHO EMPLOY ITS MEMBERS.  THUS, WHILE THE STATUTORY EXEMPTION
ALLOWS UNIONS TO ACCOMPLISH SOME RESTRAINTS BY ACTING UNILATERALLY,
E.G., FEDERATION OF MUSICIANS V. CARROLL, 391 U.S. 99 (1968), THE
NONSTATUTORY EXEMPTION OFFERS NO SIMILAR PROTECTION WHEN A UNION AND A
NONLABOR PARTY AGREE TO RESTRAIN COMPETITION IN A BUSINESS MARKET.  SEE
ALLEN BRADLEY CO. V. ELECTRICAL WORKERS, 325 U.S. 797, 806 - 811
(1945); COX, LABOR AND THE ANTITRUST LAWS--A PRELIMINARY ANALYSIS, 104
U. PA. L.REV.  252 (1955); MELTZER, LABOR UNIONS, COLLECTIVE
BARGAINING, AND THE ANTITRUST LAWS, 32 U.CHI.  L.REV.  659 (1965). 

IN THIS CASE LOCAL 100 USED DIRECT RESTRAINTS ON THE BUSINESS MARKET
TO SUPPORT ITS ORGANIZING CAMPAIGN.  THE AGREEMENTS WITH CONNELL AND
OTHER GENERAL CONTRACTORS INDISCRIMINATELY EXCLUDED NONUNION
SUBCONTRACTORS FROM A PORTION OF THE MARKET, EVEN IF THEIR COMPETITIVE
ADVANTAGES WERE NOT DERIVED FROM SUBSTANDARD WAGES AND WORKING
CONDITIONS BUT RATHER FROM MORE EFFICIENT OPERATING METHODS. 
CURTAILMENT OF COMPETITION BASED ON EFFICIENCY IS NEITHER A GOAL OF
FEDERAL LABOR POLICY NOR A NECESSARY EFFECT OF THE ELIMINATION OF
COMPETITION AMONG WORKERS.  MOREOVER, COMPETITION BASED ON EFFICIENCY
IS A POSITIVE VALUE THAT THE ANTITRUST LAWS STRIVE TO PROTECT. 

THE MULTIEMPLOYER BARGAINING AGREEMENT BETWEEN LOCAL 100 AND THE
ASSOCIATION, THOUGH NOT CHALLENGED IN THIS SUIT, IS RELEVANT IN
DETERMINING THE EFFECT THAT THE AGREEMENT BETWEEN LOCAL 100 AND CONNELL
WOULD HAVE ON THE BUSINESS MARKET.  THE "MOST FAVORED NATION" CLAUSE IN
THE MULTIEMPLOYER AGREEMENT PROMISED TO ELIMINATE COMPETITION BETWEEN
MEMBERS OF THE ASSOCIATION AND ANY OTHER SUBCONTRACTORS THAT LOCAL 100
MIGHT ORGANIZE.  BY GIVING MEMBERS OF THE ASSOCIATION A CONTRACTUAL
RIGHT TO INSIST ON TERMS AS FAVORABLE AS THOSE GIVEN ANY COMPETITOR, IT
GUARANTEED THAT THE UNION WOULD MAKE NO AGREEMENT THAT WOULD GIVE AN
UNAFFILIATED CONTRACTOR A COMPETITIVE ADVANTAGE OVER MEMBER OF THE
ASSOCIATION.  /1/ SUBCONTRACTOR IN THE ASSOCIATION THUS STOOD TO
BENEFIT FROM ANY EXTENSION OF LOCAL 100'S ORGANIZATION, BUT THE METHOD
LOCAL 100 CHOSE ALSO HAD THE EFFECT OF SHELTERING THEM FROM OUTSIDE
COMPETITION IN THAT PORTION OF THE MARKET COVERED BY SUBCONTRACTING
AGREEMENTS BETWEEN GENERAL CONTRACTORS AND LOCAL 100.  IN THAT PORTION
OF THE MARKET, THE RESTRICTION ON SUBCONTRACTING WOULD ELIMINATE
COMPETITION ON ALL SUBJECTS COVERED BY THE MULTIEMPLOYER AGREEMENT,
EVEN ON SUBJECTS UNRELATED TO WAGES, HOURS, AND WORKING CONDITIONS. 

SUCCESS IN EXACTING AGREEMENTS FROM GENERAL CONTRACTORS WOULD ALSO
GIVE LOCAL 100 POWER TO CONTROL ACCESS TO THE MARKET FOR MECHANICAL
SUBCONTRACTING WORK.  THE AGREEMENTS WITH GENERAL CONTRACTORS DID NOT
SIMPLY PROHIBIT SUBCONTRACTING TO ANY NONUNION FIRM; THEY PROHIBITED
SUBCONTRACTING TO ANY FIRM THAT DID NOT HAVE A CONTRACT WITH LOCAL
100.  THE UNION THUS HAD COMPLETE CONTROL OVER SUBCONTRACT WORK OFFERED
BY GENERAL CONTRACTORS THAT HAD SIGNED THESE AGREEMENTS.  SUCH CONTROL
COULD RESULT IN SIGNIFICANT ADVERSE EFFECTS ON THE MARKET AND ON
CONSUMERS--EFFECTS UNRELATED TO THE UNION'S LEGITIMATE GOALS OF
ORGANIZING WORKERS AND STANDARDIZING WORKING CONDITIONS.  FOR EXAMPLE,
IF THE UNION THOUGHT THE INTERESTS OF ITS MEMBERS WOULD BE SERVED BY
HAVING FEWER SUBCONTRACTORS COMPETING FOR THE AVAILABLE WORK, IT COULD
REFUSE TO SIGN COLLECTIVE-BARGAINING AGREEMENTS WITH MARGINAL FIRMS. 
CF. MINE WORKERS V. PENNINGTON, SUPRA.  OR, SINCE LOCAL 100 HAS A WELL
DEFINED GEOGRAPHICAL JURISDICTION, IT COULD EXCLUDE "TRAVELING"
SUBCONTRACTORS BY REFUSING TO DEAL WITH THEM.  LOCAL 100 THUS MIGHT BE
ABLE TO CREATE A GEOGRAPHICAL ENCLAVE FOR LOCAL CONTRACTORS, SIMILAR TO
THE CLOSED MARKET IN ALLEN BRADLEY, SUPRA. 

THIS RECORD CONTAINS NO EVIDENCE THAT THE UNION'S GOAL WAS ANYTHING
OTHER THAN ORGANIZING AS MANY SUBCONTRACTORS AS POSSIBLE.  /2/ THIS
GOAL WAS LEGAL, EVEN THOUGH A SUCCESSFUL ORGANIZING CAMPAIGN ULTIMATELY
WOULD REDUCE THE COMPETITION THAT UNIONIZED EMPLOYERSFACE FORM NONUNION
FIRMS.  BUT THE METHODS THE UNION CHOSE ARE NOT IMMUNE FROM ANTITRUST
SANCTIONS SIMPLY BECAUSE THE GOAL IS LEGAL.  HERE LOCAL 100, BY
AGREEMENT WITH SEVERAL CONTRACTORS, MADE NONUNION SUBCONTRACTORS
INELIGIBLE TO COMPETE FOR A PORTION OF THE AVAILABLE WORK.  THIS KIND
OF DIRECT RESTRAINT ON THE BUSINESS MARKET HAS SUBSTANTIAL
ANTICOMPETITIVE EFFECTS, BOTH ACTUAL AND POTENTIAL, THAT WOULD NOT
FOLLOW NATURALLY FROM THE ELIMINATION OF COMPETITION OVER WAGES AND
WORKING CONDITIONS.  IT CONTRAVENES ANTITRUST POLICIES TO A DEGREE NOT
JUSTIFIED BY CONGRESSIONAL LABOR POLICY, AND THEREFORE CANNOT CLAIM A
NONSTATUTORY EXEMPTION FROM THE ANTITRUST LAWS. 

THERE CAN BE NO ARGUMENT IN THIS CASE, WHATEVER ITS FORCE IN OTHER
CONTEXTS, THAT A RESTRAINT OF THIS MAGNITUDE MIGHT BE ENTITLED TO AN
ANTITRUST EXEMPTION IF IT WERE INCLUDED IN A LAWFUL COLLECTIVE
BARGAINING AGREEMENT.  CF. MINE WORKERS V. PENNINGTON, 381 U.S., AT 664
- 665; JEWEL TEA, 381 U.S., AT 689 - 690 (OPINION OF WHITE, J.).  ID.,
AT 709 - 713, 732 - 733 (OPINION OF GOLDBERG, J.).  IN THIS CASE, LOCAL
100 HAD NO INTEREST IN REPRESENTING CONNELL'S EMPLOYEES.  THE FEDERAL
POLICY FAVORING COLLECTIVE BARGAINING THEREFORE CAN OFFER NO SHELTER
FOR THE UNION'S COERCIVE ACTION AGAINST CONNELL OR ITS CAMPAIGN TO
EXCLUDE NONUNION FIRMS FROM THE SUBCONTRACTING MARKET. 

        III 

LOCAL 100 NONETHELESS CONTENDS THAT THE KIND OF AGREEMENT IT
OBTAINED FROM CONNELL IS EXPLICITLY ALLOWED BY THE CONSTRUCTION
INDUSTRY PROVISIO TO SEC. 8(E) AND THAT ANTITRUST POLICY THEREFORE MUST
DEFER TO THE NLRA.  THE MAJORITY IN THE COURT OF APPEALS DECLINED TO
DECIDE THIS ISSUE, HOLDING THAT IT WAS SUBJECT TO THE "EXCLUSIVE
JURISDICTION" OF THE NLRB.  483 F.2D, AT 1174.  THIS COURT HAS HELD,
HOWEVER, THAT THE FEDERAL COURTS MAY DECIDE LABOR LAW QUESTIONS THAT
EMERGE AS COLLATERAL ISSUES IN SUITS BROUGHT UNDER INDEPENDENT FEDERAL
REMEDIES, INCLUDING THE ANTITRUST LAW.  /3/ WE CONCLUDE THAT SEC. 8(E)
DOES NOT ALLOW THIS TYPE OF AGREEMENT.     LOCAL 100'S ARGUMENT IS
STRAIGHTFORWARD:  THE FIRST PROVISIO TO SEC. 8(E) ALLOWS "AN AGREEMENT
BETWEEN A LABOR ORGANIZATION AND AN EMPLOYER IN THE CONSTRUCTION
INDUSTRY RELATING TO THE CONTRACTING OR SUBCONSTRACTING OF WORK TO BE
DONE AT THE SITE OF THE CONSTRUCTION, ALTERATION, PAINTING, OR REPAIR
OF A BUILDING, STRUCTURE, OR OTHER WORK."  /4/  LOCAL 100 IS A LABOR
ORGANIZATION, CONNELL IS AN EMPLOYER IN THE CONSTRUCTION INDUSTRY, AND
THE AGREEMENT COVERS ONLY WORK "TO BE DONE AT THE SITE OF CONSTRUCTION,
ALTERATION, PAINTING OR REPAIR OF ANY BUILDING, STRUCTURE, OR OTHER
WORKS."  THEREFORE, LOCAL 100 SAYS, THE AGREEMENT COMES WITHIN THE
PROVISO.  CONNELL RESPONDS BY ARGUING THAT DESPITE THE UNQUALIFIED
LANGUAGE OF THE PROVISO, CONGRESS INTENDED ONLY TO ALLOW SUBCONTRACTING
AGREEMENTS WITHIN THE CONTEXT OF A COLLECTIVE-BARGAINING RELATIONSHIP;
THAT IS, CONGRESS DID NOT INTEND TO PERMIT A UNION TO APPROACH A
"STRANGER" CONTRACTOR AND OBTAIN A BINDING AGREEMENT NOT TO DEAL WITH
NONUNION SUBCONTRACTORS.  ON ITS FACE, THE PROVISIO SUGGESTS NO SUCH
LIMITATION.  THIS COURT HAS HELD, HOWEVER, THAT SEC. 8(E) MUST
INTERPRETED IN LIGHT OF THE STATUTORY SETTING AND THE CIRCUMSTANCES
SURROUNDING ITS ENACTMENT: 

" IT IS A 'FAMILIAR RULE, THAT A THING MAY BE WITHIN THE LETTER OF
THE STATUTE AND YET NOT WITHIN THE STATUTE, BECAUSE NOT WITHIN ITS
SPIRIT, NOR WITHIN THE INTENTION OF ITS MAKERS.'  HOLY TRINITY CHURCH
V. UNITED STATES, 143 U.S. 457, 459."  NATIONAL WOODWORK MFRS.  ASSN. 
V. NLRB, 386 U.S. 612, 619 (1967). 

TECHNICAL LOOPHOLES IN SEC. 8(B)(4)'S GENERAL PROHIBITION OF SECONDARY
ACTIVITIES.  IN SEC. 8(E) CONGRESS BROADLY PROSCRIBED USING
CONTRACTURAL AGREEMENTS TO ACHIEVE THE ECONOMIC COERCION PROHIBITED BY
SEC. 8(B)(4).  SEE NATIONAL WOODWORK MFRS.  ASSN., SUPRA, AT 634.  THE
PROVISIOS EXEMPTING THE CONSTRUCTION AND GARMENT INDUSTRIES WERE ADDED
BY THE CONFERENCE COMMITTEE IN AN APPARENT COMPROMISE BETWEEN THE HOUSE
BILL, WHICH PROHIBITED ALL "HOT CARGO" AGREEMENTS, AND THE SENATE BILL,
WHICH PROHIBITED THEM ONLY IN THE TRUCKING INDUSTRY.  /5/ ALTHOUGH THE
GARMENT-INDUSTRY PROVISIO WAS SUPPORTED BY DETAILED EXPLANATIONS IN
BOTH HOUSES, /6/ THE CONSTRUCTION-INDUSTRY PROVISIO WAS EXPLAINED ONLY
BE BARE REFERENCES TO "THE PATTERN OF COLLECTIVE BARGAINING" IN THE
INDUSTRY.  /7/  IT SEEMS, HOWEVER TO HAVE BEEN ADOPTED AS A PARTIAL
SUBSTITUTE FOR AN ATTEMPT TO OVERRULE THIS COURT'S DECISION IN NLRB V.
DENVER BUILDING & CONSTRUCTION TRADES COUNCIL, 341 U.S. 675 (1951). 
/8/ DISCUSSION OF "SPECIAL PROBLEMS" INT HE CONSTRUCTION INDUSTRY,
APPLICABLE TO BOTH THE SEC. 8(E) PROVISO AND THE ATTEMPT TO OVERRULE
DENVER BUILDING TRADES, FOCUSED ON THE PROBLEMS OF PICKETING A SINGLE
NONUNION SUBCONTRACTOR ON A MULTIEMPLOYER BUILDING PROJECT, AND THE
CLOSE RELATIONSHIP BETWEEN CONTRACTORS AND SUBCONTRACTORS AT THE
JOBSITE.  /9/  CONGRESS LIMITED THAT CONSTRUCTION-INDUSTRY PROVISO TO
THAT SINGLE SITUATION, ALLOWING SUBCONTRACTING AGREEMENTS ONLY IN
RELATION TO WORK DONE ON A JOBSITE.  ON CONSTRAST TO THE LITITUDE IT
PROVIDED IN THE GARMENT-INDUSTRY PROVISIO, CONGRESS DID NOT AFFORD
CONSTRUCTION UNIONS AN EXEMPTION FROM SEC. 8(B)(4)(B) OR OTHERWISE
INDICATE THAT THEY WERE FREE TO USE SUBCONTRACTING AGREEMENTS AS A
BROAD ORGANIZATIONAL WEAPON.  IN KEEPING WITH THESE LIMITATIONS, THE
COURT HAS INTERPRETED THE CONSTRUCTION-INDUSTRY PROVISIO AS 

"A MEASURE DESIGNED TO ALLOW AGREEMENTS PERTAINING TO CERTAIN
SECONDARY ACTIVITIES ON THE CONSTRUCTION SITE BECAUSE OF THE CLOSE
COMMUNITY OF INTERESTS THERE, BUT TO BAN SECONDARY-OBJECTIVE AGREEMENTS
CONCERNING NONJOBSITE WORK, IN WHICH RESPECT THE CONSTRUCTION INDUSTRY
IS NO DIFFERENT FROM ANY OTHER."  NATIONAL WOODWORK MFRS.  ASSN., 386
U.S., AT 638 - 639 (FOOTNOTE OMITTED).  OTHER COURTS HAVE SUGGESTED
THAT IT SERVES AN EVEN NARROWER FUNCTION: 

"(THE PURPOSE OF THE SECTION 8(E) PROVISIO WAS TO ALLEVIATE THE
FRICTIONS THAT MAY ARISE WHEN UNION MEN WORK CONTINUOUSLY ALONGSIDE
NONUNION MEN ON THE SAME CONSTRUCTION SITE."  DRIVERS LOCAL 695 V.
NLRB, 124 U.S. APP. D.C. 93, 99, 361 F.2D 547, 553 (1966).  SEE ALSO
DENVER BUILDING TRADES, 341 U.S., AT 692 - 693 (DOUGLAS, J.,
DISSENTING); ESSEX COUNTY & VICINITY DISTRICT COUNCIL OF CARPENTERS V.
NLRB, 332 F.2D 636, 640 (CA3 1964). 

LOCAL 100 DOES NOT SUGGEST THAT ITS SUBCONTRACTING AGREEMENT IS
RELATED TO ANY OF THESE POLICIES.  IT DOES NOT CLAIM TO BE PROTECTING
CONNELL'S EMPLOYEES FROM HAVING TO WORK ALONGSIDE NONUNION MEN.  THE
AGREEMENT APPARENTLY WAS NOT DESIGNED TO PROTECT LOCAL 100'S MEMBERS IN
THAT REGARD, SINCE IT WAS NOT LIMITED TO JOBSITES ON WHICH THEY WERE
WORKING.  MOREOVER, THE SUBCONTRACTING RESTRICTION APPLIED ONLY TO THE
WORK LOCAL 100'S MEMBERS WOULD PERFORM THEMSELVES AND ALLOWED FREE
SUBCONTRACTING OF ALL OTHER WORK, THUS LEAVING OPEN A POSSIBILITY THAT
THEY WOULD BE EMPLOYED ALONGSIDE NONUNION SUBCONTRACTORS.  NOR WAS
LOCAL 100 TRYING TO ORGANIZE A NONUNION SUBCONTRACTOR ON THE
BUILDINGPROJECT IT PICKETED.  THE UNION ADMITS THAT IT SOUGHT THE
AGREEMENT SOLELY AS A WAY OF PRESSURING MECHANICAL SUBCONTRACTORS IN
THE DALLAS AREA TO RECOGNIZE IT AS THE REPRESENTATIVE OF THEIR
EMPLOYEES. 

IF WE AGREED WITH LOCAL 100 THAT THE CONSTRUCTION-INDUSTRY PROVISIO
AUTHORIZES SUBCONTRACTING AGREEMENTS WITH "STRANGER" CONTRACTORS, NOT
LIMITED TO ANY PARTICULAR JOBSITE, OUR RULING WOULD GIVE CONSTRUCTION
UNIONS AN ALMOST UNLIMITED ORGANIZATIONAL WEAPONS.  /10/ THE UNIONS
WOULD BE FREE TO ENLIST ANY GENERAL CONTRACTOR TO BRING ECONOMIC
PRESSURE ON NONUNION SUBCONTRACTORS, AS LONG AS THE AGREEMENT RECITED
THAT IT ONLY COVERED WORK TO BE PERFORMED ON SOME JOBSITE SOMEWHERE. 
THE PROVISO'S JOBSITE RESTRICTION THEN WOULD SERVE ONLY TO PROHIBIT
AGREEMENTS RELATING TO SUBCONTRACTORS THAT DELIVER THEIR WORK COMPLETE
TO THE JOBSITE. 

IT IS HIGHLY IMPROBABLE THAT CONGRESS INTENDED SUCH A RESULT.  ONE
OF THE MAJOR AIMS OF THE 1959 ACT WAS TO LIMIT "TOP-DOWN" ORGANIZING
CAMPAIGNS, IN WHICH UNIONS USED ECONOMIC WEAPONS TO FORCE RECOGNITION
FROM AN EMPLOYER REGARDLESS OF THE WISHES OF HIS EMPLOYEES.  /11/
CONGRESS ACCOMPLISHED THIS GOAL BY ENACTING SEC. 8(B)(7), WHICH
RESTRICTS PRIMARY RECOGNITIONAL PICKETING, AND BY FURTHER TIGHTENING
SEC. 8(B)(4)(B), WHICH PROHIBITS THE USE OF MOST SECONDARY TACTICS IN
ORGANZIATIONAL CAMPAIGNS.  CONSTRUCTION UNIONS ARE FULLY COVERED BY
THESE SECTIONS.  THE ONLY SPECIAL CONSIDERATION GIVEN THEM IN
ORGANIZATIONAL CAMPAIGNS IS SEC. 8(F), WHICH ALLOWS "PRE-HIRE"
AGREEMENTS IN THE CONSTRUCTION INDUSTRY, BUT ONLY UNDER CAREFUL
SAFEGUARDS PRESERVING WORKERS' RIGHTS TO DECLINE UNION REPRESENTATION. 
THE LEGISLATIVE HISTORY ACCOMPANYING SEC. 8(F) ALSO SUGGESTS THAT
CONGRESS MAY NOT HAVE INTENDED THAT STRIKES OR PICKETING COULD BE USED
TO EXTRACT PREHIRE AGREEMENTS FROM UNWILLING EMPLOYERS.  /12/ 

THESE CAREFUL LIMITS ON THE ECONOMIC PRESSURE UNIONS MAY USE IN AID
OF THEIR ORGANIZATIONAL CAMPAIGNS WOULD BE UNDERMINED SERIOUSLY IF THE
PROVISO TO SEC. 8 (E) WERE CONSTRUED TO ALLOW UNIONS TO SEEK
SUBCONTRACTING AGREEMENTS, AT LARGE, FROM ANY GENERAL CONTRACTOR
VULNERABLE TO PICKETING.  ABSENT A CLEAR INDICATION THAT CONGRESS
INTENDED TO LEAVE SUCH A GLARING LOOPHOLE IN ITS RESTRICTIONS ON "TOP
DOWN" ORGANIZING, WE ARE UNWILLING TO READ THE CONSTRUCTION INDUSTRY
PROVISIO AS BROADLY AS LOCAL 100 SUGGESTS.  /13/ INSTEAD, WE THINK ITS
AUTHORIZATION EXTENDS ONLY TO AGREEMENTS IN THE CONTEXT OF COLLECTIVE
BARGAINING RELATIONSHIPS AND, IN LIGHT OF CONGRESSIONAL REFERENCES TO
THE DENVER BUILDING TRADES PROBLEM, POSSIBLY TO COMMON-SITUS
RELATIONSHIPS ON PARTICULAR JOBSITES AS WELL.  /14/ 

FINALLY, LOCAL 100 CONTENDS THAT EVEN IF THE SUBCONTRACTING
AGREEMENT IS NOT SANCTIONED BY THE CONSTRUCTION-INDUSTRY PROVISO AND
THEREFORE IS ILLEGAL UNDER SEC. 8(E), IT CANNOT BE THE BASIS FOR
ANTITRUST LIABILITY BECAUSE THE REMEDIES IN THE NLRA ARE EXCLUSIVE. 
THIS ARGUMENT IS GROUNDED IN THE LEGISLATIVE HISTORY OF THE 1947 TAFT
HARTLEY AMENDMENTS.  CONGRESS REJECTED ATTEMPTSTO REGULATE SECONDARY
ACTIVITIES BY REPEALING THE ANTITRUST EXEMPTIONS IN THE CLAYTON AND
NORRIS-LA GUARDIA ACTS, AND CREATED SPECIAL REMEDIES UNDER THE LABOR
LAW INSTEAD.  /15/ IT MADE SECONDARY ACTIVITIES UNFAIR LABOR PRACTICES
UNDER SEC. 8(B)(4), AND DRAFTED SPECIAL PROVISIONS FOR PRELIMINARY
INJUNCTIONS AT THE SUIT OF THE NLRB AND FOR RECOVERY OF ACTUAL DAMAGES
IN THE DISTRICT COURTS.  SEC. 10(1) OF THE NLRB, 49 STAT. 453, AS
ADDED, 61 STAT. 149, AS AMENDED, AND SEC. 303 OF THE LABOR MANAGEMENT
RELATIONS ACT, 61 STAT. 158, AS AMENDED, 29 U.S.C. SECS. 160(1), 187. 
BUT WHATEVER SIGNIFICANCE THIS LEGISLATIVE CHOICE HAS FOR ANTITRUST
SUITS BASED ON THOSE SECONDARY ACTIVITIES PROHIBITED BY SEC. 8(B)(4),
IT HAS NO RELEVANCE TO THE QUESTION WHETHER CONGRESS MEANT TO PRECLUDE
ANTITRUST SUITS BASED ON THE "HOT CARGO"  AGREEMENTS THAT IT OUTLAWED
IN 1959.  THERE IS NO LEGISLATIVE HISTORY IN THE 1959 CONGRESS
SUGGESTING THAT LABOR-LAW REMEDIES FOR SEC. 8(E) VIOLATIONS WERE
INTENDED TO BE EXCLUSIVE, OR THAT CONGRESS THOUGHT ALLOWING ANTITRUST
REMEDIES IN CASES LIKE THE PRESENT ONE WOULD BE INCONSISTENT WITH THE
REMEDIAL SCHEME OF THE NLRA.  /16/ 

WE THEREFORE HOLD THAT THIS AGREEMENT, WHICH IS OUTSIDE THE CONTEXT
OF A COLLECTIVE-BARGAINING RELATIONSHIP AND NOT RESTRICTED TO A
PARTICULAR JOBSITE, BUT WHICH NONETHELESS OBLIGATES CONNELL TO
SUBCONTRACT WORK ONLY TO FIRMS THAT HAVE A CONTRACT WITH LOCAL 100, MAY
BE THE BASIS OF A FEDERAL ANTITRUST SUIT BECAUSE IT HAS A POTENTIAL FOR
RESTRAINING COMPETITION IN THE BUSINESS MARKET IN WAYS THAT WOULD NOT
FOLLOW NATURALLY FROM ELIMINATION OF COMPETITION OVER WAGES AND WORKING
CONDITIONS. 

        IV 

ALTHOUGH WE HOLD THAT THE UNION'S AGREEMENT WITH CONNELL IS SUBJECT
TO THE FEDERAL ANTITRUST LAWS, IT DOES NOT FOLLOW THAT STATE ANTITRUST
LAW MAY APPLY AS WELL.  THE COURT HAS HELD REPEATEDLY THAT FEDERAL LAW
PRE-EMPTS STATE REMEDIES THAT INTERFERE WITH FEDERAL LABOR POLICY OR
WITH SPECIFIC PROVISIONS OF THE NLRA.  E.G., MOTOR COACH EMPLOYEES V.
LOCKRIDGE, 403 U.S. 274 (1971); TEAMSTERS V. MORTON, 377 U.S. 252
(1964); TEAMSTERS V. OLIVER, 358 U.S. 283 (1959).  /17/ THE USE OF
STATE ANTITRUST LAW TO REGULATE UNION ACTIVITIES IN AID OF ORGANIZATION
MUST ALSO BE PRE-EMPTED BECAUSE IT CREATES A SUBSTANTIAL RISK OF
CONFLICT WITH POLICIES CENTRAL TO FEDERAL LABOR LAW. 

IN THIS AREA, THE ACCOMMODATION BETWEEN FEDERAL LABOR AND ANTITRUST
POLICY IS DELICATE.  CONGRESS AND THIS COURT HAVE CAREFULLY TAILORED
THE ANTITRUST STATUTES TO AVOID CONFLICT WITH THE LABOR POLICY FAVORING
LAWFUL EMPLOYEE ORGANIZATION, NOT ONLY BY DELINEATING EXEMPTIONS FROM
ANTITRUST COVERAGE BUT ALSO BY ADJUSTING THE SCOPE OF THE ANTITRUST
REMEDIES THEMSELVES.  SEE APEX HOSIERY CO. V. LEADER, 310 U.S. 469
(1940).  STATE ANTITRUSTLAWS GENERALLY HAVE NOT BEEN SUBJECTED TO THIS
PROCESS OF ACCOMMODATION.  IF THEY TAKE ACCOUNT OF LABOR GOALS AT ALL,
THEY MAY REPRESENT A TOTALLY DIFFERENT BALANCE BETWEEN LABOR AND
ANTITRUST POLICIES.  /18/ PERMITTING STATE ANTITRUST LAW TO OPERATE IN
THIS FIELD COULD FRUSTRATE THE BASIC FEDERAL POLICIES FAVORING EMPLOYEE
ORGANIZATION AND ALLOWING ELIMINATION OF COMPETITION AMONG WAGE
EARNERS, AND INTEFERE WITH THE DETAILED SYSTEM CONGRESS HAS CREATED FOR
REGULATING ORGANIZATIONAL TECHNIQUES. 

BECAUSE EMPLOYEE ORGANIZATION IS CENTRAL TO FEDERAL LABOR POLICY AND
REGULATION OF ORGANIZATIONAL PROCEDURES IS COMPREHENSIVE, FEDERAL LAW
DOES NOT ADMIT THE USE OF STATE ANTITRUST LAW TO REGULATE UNION
ACTIVITY THAT IS CLOSELY RELATED TO ORGANIZATIONAL GOALS.  OF COURSE,
OTHER AGREEMENTS BETWEEN UNIONS AND NONLABOR PARTIES MAY YET BE SUBJECT
TO STATE ANTITRUST LAWS.  SEE TEAMSTERS V. OLIVER, SUPRA, AT 295 -
297.  THE GOVERNING FACTOR IS THE RISK OF CONFLICT WITH THE NLRA OR
WITH FEDERAL LABOR POLICY. 

        V 

NEITHER THE DISTRICT COURT NOR THE COURT OF APPEALS DECIDED WHETHER
THE AGREEMENT BETWEEN LOCAL 100 AND CONNELL, IF SUBJECT TO THE
ANTITRUST LAWS, WOULD CONSTITUTE AN AGREEMENT THAT RESTRAINS TRADE
WITHIN THE MEANING OF THE SHERMAN ACT.  THE ISSUE WAS NOT BRIEFED AND
ARGUED FULLY IN THIS COURT.  ACCORDINGLY, WE REMAND FOR CONSIDERATION
WHETHER THE AGREEMENT VIOLATED THE SHERMAN ACT.  /19/

                                  REVERSED IN PART AND REMANDED. 

/1/ THE PRIMARY EFFECT OF THE AGREEMENT SEEMS TO HAVE BEEN TO
INHIBIT THE UNION FROM OFFERING ANY OTHER EMPLOYER A MORE FAVORABLE
CONTRACT.  WHEN ASKED AT TRIAL WHETHER SUBCONTRACTOR COULD GET AN
AGREEMENT ON ANY DIFFERENT TERMS, LOCAL 100'S BUSINESS AGENT ANSWERED: 

" NO. THE AGREEMENT SAYS THAT NO ONE WILL BE GIVEN A MORE FAVORABLE
AGREEMENT.  I COULDN'T, IF I DESIRED, AS AN AGENT, SIGN AN AGREEMENT
OTHER THAN THE ONES IN EXISTENCE BETWEEN THE LOCAL CONTRACTORS AND THE
LOCAL 100. 

        * * * * * 

" Q. I SEE.  SO THAT'S--IN OTHER WORDS, ONCE YOU SIGN THAT CONTRACT
WITH THE MECHANICAL CONTRACTORS' ASSOCIATION, THAT SETS THE ONLY TYPE
OF AGREEMENT WHICH YOUR UNION CAN ENTER INTO WITH ANY OTHER MECHANICAL
CONTRACTORS; IS THAT CORRECT, SIR? 

" A. THAT IS TRUE."  TR. 45 - 46. 

/2/ THERE WAS NO EVIDENCE THAT LOCAL 100'S ORGANIZING CAMPAIGN WAS
CONNECTED WITH ANY AGREEMENT WITH MEMBERS OF THE MULTIEMPLOYER
BARGAINING UNIT, AND THE ONLY EVIDENCE OF AGREEMENT AMONG THOSE
SUBCONTRACTORS WAS THE "MOST FAVORED NATION" CLAUSE IN THE COLLECTIVE
BARGAINING AGREEMENT.  IN FACT, CONNELL HAS NOT ARGUED THE CASE ON A
THEORY OF CONSPIRACY BETWEEN THE UNION AND UNIONIZED SUBCONTRACTORS. 
IT HAS SIMPLY RELIED ON THE MULTIEMPLOYER AGREEMENT AS A FACTOR
ENHANCING THE RESTRAINT OF TRADE IMPLICIT IN THE SUBCONTRACTING
AGREEMENT IT SIGNED.    /3/ MEAT CUTTERS V. JEWEL TEA CO., 381 U.S.
676, 684 - 688 (1965) (OPINION OF WHITE, J.); ID., AT 710 N.18 (OPINION
OF GOLDBERG, J.); CF. VACA V. SIPES, 386 U.S. 171, 176 - 188 (1967);
SMITH V. EVENING NEWS ASSN., 371 U.S. 195 (1962). 

/4/ SECTION 8(E) PROVIDES: 

" IT SHALL BE AN UNFAIR LABOR PRACTICE FOR ANY LABOR ORGANIZATION
AND ANY EMPLOYER TO ENTER INTO ANY CONTRACT OR AGREEMENT, EXPRESS OR
IMPLIED, WHEREBY SUCH EMPLOYER CEASES OR REFRAINS OR AGREES TO CEASE OR
REFRAIN FROM HANDLING, USING, SELLING, TRANSPORTING OR OTHERWISE
DEALING IN ANY OF THE PRODUCTS OF ANY OTHER EMPLOYER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON, AND ANY CONTRACT OR AGREEMENT ENTERED
INTO HERETOFORE OR HEREAFTER CONTAINING SUCH AN AGREEMENT SHALL BE TO
SUCH EXTENT UNENFORCIBLE AND VOID:  PROVIDED, THAT NOTHING IN THIS
SUBSECTION SHALL APPLY TO AN AGREEMENT BETWEEN A LABOR ORGANIZATION AND
AN EMPLOYER IN THE CONSTRUCTION INDUSTRY RELATING TO THE CONTRACTING OR
SUBCONTRACTING OF WORK TO BE DONE AT THE SITE OF THE CONSTRUCTION,
ALTERATION, PAINTING, OR REPAIR OF A BUILDING, STRUCTURE, OR OTHER
WORK:  PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SUBSECTION AND
SUBSECTION (B)(4)(B) OF THIS SECTION THE TERMS 'ANY EMPLOYER,' 'ANY
PERSON' ENGAGED IN COMMERCE OR AN INDUSTRY AFFECTING COMMERCE,' AND
'ANY PERSON' WHEN USED IN RELATION TO THE TERMS 'ANY OTHER PRODUCER,
PROCESSOR, OR MANUFACTURER,' 'ANY OTHER EMPLOYER,' OR 'ANY OTHER
PERSON' SHALL NOT INCLUDE PERSONS IN THE RELATION OF A JOBBER,
MANUFACTURER, CONTRACTOR, OR SUBCONTRACTOR WORKING ON THE GOODS OR
PREMISES OF THE JOBBER OR MANUFACTURER OR PERFORMING PARTS OF AN
INTEGRATED PROCESS OF PRODUCTION IN THE APPAREL AND CLOTHING INDUSTRY:
PROVIDED FURTHER, THAT NOTHING IN THIS SUBCHAPTER SHALL PROHIBIT THE
ENFORCEMENT OF ANY AGREEMENT WHICH IS WITHIN THE FOREGOING EXCEPTION." 
29 U.S.C. SEC. 158(E). 

/5/ SEE H.R. CONF. REP. NO 1147, 86TH CONG., 1ST SESS., 39 - 40
(1959). 

/6/ 105 CONG. REC. 17327 (1959) (REMARKS BY SEN. KENNEDY); ID., AT
17381 (REMARKS BY SENS.  JAVITS AND GOLDWATER); ID., AT 15539
(MEMORANDUM BY REPS.  THOMPSON AND UDALL); ID., AT 16590 (MEMORANDUM BY
SEN. KENNEDY AND REP. THOMPSON).  THESE DEBATES ARE REPRODUCED IN 2
NLRB, LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959, PP. 1377, 1385, 1576, 1708 (1959) (HEREINAFTER
LEG.  HIST.  OF LMRDA). 

/7/ 105 CONG. REC. 17899 (1959) (REMARKS BY SEN KENNEDY); ID., AT
18134 (REMARKS BY REP. THOMPSON); 2 LEG.  HIST.  OF LMRDA, SUPRA, N. 6,
AT 1432, 1721. 

/8/ PRESIDENT EISENHOWER'S MESSAGETO CONGRESS RECOMMENDING LABOR
REFORM LEGISLATION URGED AMENDMENT OF THE SECONDARY-BOYCOTT PROVISIONS
TO PERMIT SECONDARY ACTIVITY "UNDER CERTAIN CIRCUMSTANCES, AGAINST
SECONDARY EMPLOYERS ENGAGED IN WORK AT A COMMON CONSTRUCTION SITE WITH
THE PRIMARY EMPLOYER."  S. DOC. NO. 10, 86TH CONG., 1ST SESS., 3 (1959)
(EMPHASIS ADDED).  VARIOUS BILLS INTRODUCED IN BOTH HOUSES INCLUDED
SUCH PROVISIONS, SEE 2 LEG.  HIST.  OF LMRDA , SUPRA, N. 6, AT 1912 -
1915, BUT NEITHER THE BILL THAT PASSED THE SENATE NOR THE ONE THAT
PASSED THE HOUSE CONTAINED A DENVER BUILDING TRADES PROVISION.  THE
CONFERENCE COMMITTEE PROPOSED TO INCLUDE SUCH AN AMENDMENT TO SEC.
8(B)(4)(B) IN THE CONFERENCE AGREEMENT, ALONG WITH A CLOSELY LINKED
CONSTRUCTION-INDUSTRY EXEMPTION FROM SEC. 8(E).  105 CONG. REC. 17333
(1959) (PROPOSED SENATE RESOLUTION), 2 LEG.  HIST.  OF LMRDA, SUPRA, AT
1383.  BUT A PARLIAMENTARY OBSTACLE KILLED THE SEC. 8(B)(4)(B)
AMENDMENT, AND ONLY THE SEC. 8(E) PROVISIO SURVIVED.  SEE ID., AT 17728
- 17729, 17901 - 17903; 2 LEG.  HIST.  OF LMRDA, SUPRA, AT 1397 - 1398,
1434 - 1436.  REFERENCES TO THE PROVISO SUGGEST THAT THE COMMITTTEE MAY
HAVE INTENDED THE SEC. 8(E) PROVISO SIMPLY TO PRESERVE THE STATUS QUO
UNDER CARPENTERS' UNION V. NLRB (SAND DOOR), 357 U.S. 93 (1958),
PENDING ACTION ON THE DENVER BUILDING TRADES PROBLEM IN THE FOLLOWING
SESSION.  SEE H.R. REP. NO 1147, SUPRA, N. 5, AT 39 - 40; 105 CONG.
REC. 17900 (1959) (REPORT ON SEN. KENNEDY ON CONFERENCE AGREEMENT); 2
LEG.  HIST.  OF LMRDA, SUPRA, AT 1433.  ALTHOUGH SENATOR KENNEDY
INTRODUCED A BILL TO AMEND SEC. 8(B)(4), S. 2643, 86TH CONG., 1ST SESS.
(1959), IT WAS NEVER REPORTED OUT OF COMMITTEE. 

/9/ SEE 105 CONG. REC. 17881 (1959) (REMARKS BY SEN. MORSE); ID., AT
15541 (MEMORANDUM BY REPS.  THOMPSON AND UDALL); ID., AT 15551 - 15552
(MEMORANDUM BY SEN. ELLIOTT); ID., AT 15852 (REMARKS BY REP. GOODELL;
ID., AT 20004 - 20005 (REMARKS BY REP. KEARNS); 2 LEG.  HIST.  OF
LMRDA, SUPRA, N. 6, AT 1425, 1577, 1588, 1684, AND 1681. 

/10/ LOCAL 100 CONTENDS, UNSOUNDLY WE THINK, THAT THE NLRB HAS
DECIDED THIS ISSUE IN ITS FAVOR.  IT CITES LOS ANGELES BUILDING &
CONSTRUCTION TRADES COUNCIL (B & J INVESTMENT CO.), 214 N.L.R.B. NO.
86, 87 L.R.R.M. 1424 (1974), AND A MEMORANDUM FROM THE GENERAL COUNSEL
EXPLAINING HIS DECISION NOT TO FILE UNFAIR LABOR PRACTICE CHARGES IN A
SIMILAR CASE, PLUMBERS LOCAL 100 (HAGLER CONSTRUCTION CO.), NO. 16
CC__447 (MAY 1, 1974).  IN B & J INVESTMENT THE BOARD APPROVED, WITHOUT
COMMENT, AN ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE SEC. 8(E)
PROVISIO AUTHORIZED A SUBCONTRACTING AGREEMENT BETWEEN THE COUNCIL AND
A GENERAL CONTRACTOR WHO USED NONE OF HIS OWN EMPLOYEES IN THE
PARTICULAR CONSTRUCTION PROJECT.  THE AGREEMENT IN QUESTION MAY HAVE
BEEN A PREHIRE CONTRACT UNDER SEC. 8(F), AND IT IS NOT CLEAR THAT THE
CONTRACTOR ARGUED THAT IT WAS INVALID FOR LACK OF A COLLECTIVE
BARGAINING RELATIONSHIP.  THE GENERAL COUNSEL'S MEMORANDUM IN HAGLER
CONSTRUCTION IS PLAINLY ADDRESSED TO A DIFFERENT ARGUMENT--THAT A
SUBCONTRACTING CLAUSE SHOULD BE ALLOWED ONLY IF THERE IS A PRE-EXISTING
COLLECTIVE-BARGAINING RELATIONSHIP WITH THE GENERAL CONTRACTOR OR IF
THE GENERAL CONTRACTOR HAS EMPLOYEES WHO PERFORM THE KIND OF WORK
COVERED BY THE AGREEMENT. 

/11/ 105 CONG. REC. 6428 - 6429 (1959) (REMARKS OF SEN. GOLDWATER);
ID., AT 6648 - 6649 (REMARKS OF SEN. MC CLELLAN); ID., AT 6664 - 6665
(REMARKS OF SEN. GOLDWATER); ID., AT 14348 (MEMORANDUM OF REP.
GRIFFIN); 2 LEG.  HIST.  OF LMRDA, SUPRA, N. 6, AT 1079, 1175 - 1176,
1191 - 1192, 1523. 

/12/ H.R. REP. NO. 1147, SUPRA, N. 5, AT 42; 105 CONG. REC. 10104
(1959) (MEMORANDUM OF SEN. GOLDWATER); ID., AT 18128 (REMARKS BY REP.
BARDEN); 2 LEG.  HIST.  OF LMRDA, SUPRA, N. 6, AT 1289, 1715.  THE NLRB
HAS TAKEN THIS VIEW.  OPERATING ENGINEERS LOCAL 542, 142 N.L.R.B. 1132
(1963), ENFORCED, 331 F.2D 99 (CA3), CERT. DENIED, 379 U.S. 889
(1964). 

/13/ AS NOTED ABOVE, SUPRA, AT 628 - 630, THE GARMENT INDUSTRY
PROVISO REFLECTS DIFFERENT CONSIDERATIONS.  THE TEXT OF THE PROVISO AND
THE TREATMENT IN CONGRESSIONAL DEBATES AND REPORTS SUGGEST THAT
CONGRESS INTENDED TO AUTHORIZE GARMENT WORKERS' UNIONS TO CONTINUE
USING SUBCONTRACTING AGREEMENTS AS AN ORGANIZATIONAL WEAPON.  SEE
DANIELSON V. JOINT BOARD, 494 F.2D 1230 (CA2 1974) (FRIENDLY, J.). 

/14/ CONNELL ALSO HAS ARGUED THAT THE SUBCONTRACTING AGREEMENT WAS
SUBJECT TO ANTITRUST SANCTIONS BECAUSE THE CONSTRUCTION INDUSTRY
PROVISO AUTHORIZES ONLY VOLUMTARY ARGEEMENTS.  THE FOUNDATION OF THIS
ARGUMENT IS A CONTENTION THAT SEC. 8(B)(4)(B) FORBIDS PICKETING TO
SECURE AN OTHERWISE LAWFUL "HOT-CARGO" AGREEMENT IN THE CONSTRUCTION
INDUSTRY.  BECAUSE WE HOLD THAT THE AGREEMENT IN THIS CASE IS OUTSIDE
THE SEC. 8(E) PROVISO, IT IS UNNECESSARY TO CONSIDER THIS ALTERNATIVE
CONTENTION. 

/15/ SEE H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., 65 - 67
(1947); 93 CONG. REC. 4757, 4770, 4834 - 4874 (1947) (DEBATES OVER SEN.
BALL'S PROPOSAL FOR ANTITRUST SANCTIONS AND SEN. TAFT'S COMPROMISE
PROPOSAL FOR ACTUAL DAMAGES, WHICH BECAME SEC. 303 OF THE NLRA). 

/16/ THE DISSENTING OPINION OF MR. JUSTICE STEWART ARGUES THAT SEC.
303 PROVIDES THE EXCLUSIVE REMEDY FOR VIOLATIONS OF SEC. 8(E), THEREBY
PRECLUDING RECOURSE TO ANTITRUST REMEDIES.  FOR THAT PROPOSITION THE
DISSENTING OPINION RELIES UPON "CONSIDERABLE EVIDENCE IN THE
LEGISLATIVE MATERIALS."  POST, AT 650.  IN OUR VIEW, THESE MATERIALS
ARE UNPERSUASIVE.  IN THE FIRST PLACE, CONGRESS DID NOT AMEND SEC. 303
EXPRESSLY TO PROVIDE REMEDY FOR VIOLATIONS OF SEC. 8(E).  SEE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, SECS. 704(D), (E), 73
STAT. 544 - 545.  THE HOUSE IN 1959 DID REJECT PROPOSAL'S BY
REPRESENTATIVES HIESTAND, ALGER, AND HOFFMAN TO REPEAL LABOR'S
ANTITRUST IMMUNITY.  POST, AT 650 - 654.  THOSE PROPOSALS, HOWEVER,
WERE MUCH BROADER THAT THE ISSUE IN THIS CASE.  THE HIESTAND-ALGER
PROPOSAL WOULD HAVE REPEALED ANTITRUST IMMUNITY FOR ANY ACTION IN
CONCERT BY TWO OR MORE LABOR ORGANIZATIONS.  THE HOFFMAN PROPOSAL
APPARENTLY INTENDED TO REPEAL LABOR'S ANTITRUST IMMUNITY ENTIRELY. 
THAT THE CONGRESS REJECTED THESE EXTRAVAGANT PROPOSALS HARDLY FURNISHES
PROOF THAT IT INTENDED TO EXTEND LABOR'S ANTITRUST IMMUNITY TO INCLUDE
AGREEMENTS WITH NONLABOR PARTIES, OR THAT IT THOUGHT ANTITRUST
LIABILITY UNDER THE EXISTING STATUTES WOULD BE INCONSISTENT WITH THE
NLRA.  THE BILL INTRODUCED BY SENATOR MC CLELLAN TWO YEARS PROVIDES
EVEN LESSSUPPORT FOR THAT PROPOSITION.  LIKE MOST BILLS INTRODUCED IN
CONGRESS, IT NEVER REACHED A VOTE. 

/17/ IN MOST CASES A DECISION THAT STATE LAW IS PRE-EMPTED LEAVES THE
PARTIES WITH RECOURSE ONLY TO THE FEDERAL LAW, AS ENFORCED BY THE
NLRB.  SEE LOCKRIDGE, SUPRA; SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236 (1959).  BUT IN CASES LIKE THIS ONE, WHERE THERE
IS AN INDEPENDENT FEDERAL REMEDY THAT IS CONSISTENT WITH THE NLRA, THE
PARTIES MAY HAVE A CHOICE OF FEDERAL REMEDIES.  CF. VACA V. SIPES, 386
U.S. 171, 176 - 188 (1967); SMITH V. EVENING NEW ASSN., 371 U.S. 195
(1962). 

/18/ TEXAS LAW IS A GOOD EXAMPLE.  TEXAS REV. STAT. ANN., ARTS. 5152
AND 5153 (1971), DECLARE THAT IT IS LAWFUL FOR WORKERS TO ASSOCIATE IN
UNIONS AND TO INDUCE OTHER PERSONS TO ACCEPT OR REJECT EMPLOYMENT. 
ARTICLE 5154, HOWEVER, REFERRING TO THE PRECEDING ARTICLES, PROVIDES:
" NOTHING HEREIN SHALL BE CONSTRUED TO REPEAL, AFFECT OR DIMINISH THE
FORCE AND EFFECT OF ANY STATUTE NOW EXISTING ON THE SUBJECT OF TRUSTS,
CONSPIRACIES AGAINST TRADE, POOLS AND MONOPOLIES."  THE TEXAS ANTITRUST
STATUTES PROHIBIT, AMONG OTHER SPECIFIED AGREEMENTS, TRUSTS, AND
MONOPOLIES, ANY COMBINATION OF TWO OR MORE PERSONS TO RESTRICT "THE
FREE PURSUIT OF A LAWFUL BUSINESS."  TEX BUS.  & COMM. CODE SECS. 15.02
- 1504 (1968). 

/19/ IN ADDITION TO SEEKING A DECLARATORY JUDGMENT THAT THE
AGREEMENT WITH LOCAL 100 VIOLATED THE ANTITRUST LAWS, CONNELL SOUGHT A
PERMANENT INJUNCTION AGAINST FURTHER PICKETING TO COERCE EXECUTION OF
THE CONTRACT IN LITIGATION.  CONNELL OBTAINED A TEMPORARY RESTRAINING
ORDER AGAINST THE PICKETING ON JANUARY 21, 1971, AND THEREAFTER
EXECUTED THE CONTRACT--UNDER PROTEST--WITH LOCAL 100 ON MARCH 28,
1971.  SO FAR AS THE RECORD IN THIS CASE REVEALS, THERE HAS BEEN NO
FURTHER PICKETING AT CONNELL'S CONSTRUCTION SITES.  ACCORDINGLY, THERE
IS NO OCCASION FOR US TO CONSIDER WHETHER THE NORRIS-LA GUARDIA ACT
FORBIDS SUCH AN INJUNCTION WHERE THE SPECIFIC AGREEMENT SOUGHT BY THE
UNION IS ILLEGAL, OR TO DETERMINE WHETHER, WITHIN THE MEANING OF THE
NORRIS-LA GUARDIA ACT, THERE WAS A "LABOR DISPUTE" BETWEEN THESE
PARTIES.  IF THE NORRIS-LA GUARDIA ACT WERE APPLICABLE TO THIS
PICKETING, INJUNCTIVE RELIEF WOULD NOT BE AVAILABLE UNDER THE ANTITRUST
LAWS.  SEE UNITED STATES V. HUTCHESON, 312 U.S. 219 (1941).  IF THE
AGREEMENT IN QUESTION IS HELD ON REMAND TO BE INVALID UNDER FEDERAL
ANTITRUST LAWS, WE CANNOT ANTICIPATE THAT LOCAL 100 WILL RESUME
PICKETING TO OBTAIN OR ENFORCE AN ILLEGAL AGREEMENT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHILE I JOIN THE OPINION OF MR. JUSTICE STEWART, I WRITE TO
EMPHASIZE WHAT IS, FOR ME, THE DETERMINATIVE FEATURE OF THE CASE. 
THROUGHOUT THIS LITIGATION, CONNELL HAS MAINTAINED ONLY THAT LOCAL 100
COERCED IT INTO SIGNING THE SUBCONTRACTING AGREEMENT.  WITH THE
COMPLAINT SO DRAWN, I HAVE NO DIFFICULTY IN CONCLUDING THAT THE UNION'S
CONDUCT IS REGULATED SOLELY BY THE LABOR LAWS.  THE QUESTION OF
ANTITRUST IMMUNITY WOULD BE FAR DIFFERENT, HOWEVER, IF IT WERE ALLEGED
THAT LOCAL 100 HAD CONSPIRED WITH MECHANICAL SUBCONTRACTORS TO FORCE
NONUNION SUBCONTRACTORS FROM THE MARKET BY ENTERING INTO EXCLUSIONARY
AGREEMENTS WITH GENERAL CONTRACTORS LIKE CONNELL.  AN ARRANGEMENT OF
THAT CHARACTER WAS CONDEMNED IN ALLEN BRADLEY CO. V. ELECTRICAL
WORKERS, 325 U.S. 797 (1945), WHICH HELD THAT CONGRESS DID NOT INTEND
"TO IMMUNIZE LABOR UNIONS WHO AID AND ABET MANUFACTURERS AND TRADERS IN
VIOLATING THE SHERMAN ACT," ID., AT 810.  WERE SUCH A CONSPIRACY
ALLEGED, THE MULTIEMPLOYER BARGAINING AGREEMENT BETWEEN LOCAL 100 AND
THE MECHANICAL SUBCONTRACTORS WOULD UNQUESTIONABLY BE RELEVANT.  SEE
MINE WORKERS V. PENNINGTON, 381 U.S. 657, 673 (1965) (CONCURRING
OPINION); MEAT CUTTERS V. JEWEL TEA CO., 381 U.S. 676, 737 (1965)
(DISSENTING OPINION).  BUT SINCE CONNELL HAS NEVER ALLEGED OR ATTEMPTED
TO SHOW ANY CONSPIRACY BETWEEN LOCAL 100 AND THE SUBCONTRACTORS, I
AGREE THAT CONNELL'S REMEDIES, IF ANY, ARE PROVIDED EXCLUSIVELY BY THE
LABOR LAWS. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

AS PART OF ITS EFFORT TO ORGANIZE MECHANICAL CONTRACTORS IN THE
DALLAS AREA, THE RESPONDENT LOCAL UNION NO. 100 ENGAGED IN PEACEFUL
PICKETING TO INDUCE THE PETITIONER CONNELL CONSTRUCTION CO., A GENERAL
CONTRACTOR IN THE BUILDING AND CONSTRUCTION INDUSTRY, TO AGREE TO
SUBCONTRACT PLUMBING AND MECHANICAL WORK AT THE CONSTRUCTION SITE ONLY
TO FIRMS THAT HAD SIGNED A COLLECTIVE-BARGAINING AGREEMENT WITH LOCAL
100.  NONE OF CONNELL'S OWN EMPLOYEES WERE MEMBERS OF LOCAL 100, AND
THE SUBCONTRACTING AGREEMENT CONTAINED THE UNION'S EXPRESS DISAVOWAL OF
ANY INTENT TO ORGANIZE OR REPRESENT THEM.  THE PICKETING AT CONNELL'S
CONSTRUCTION SITE WAS THEREFORE SECONDARY ACTIVITY, SUBJECT TO DETAILED
AND COMPREHENSIVE REGULATION PURSUANT TO SEC. 8(B)(4) OF THE NATIONAL
LABOR RELATIONS ACT, AS ADDED, 61 STAT. 141, 29 U.S.C. SEC. 158(B)(4),
AND SEC. 303 OF THE LABOR-MANAGEMENT RELATIONS ACT, 61 STAT. 158, AS
AMENDED, 29 U.S.C. SEC. 187.  SIMILARLY, THE SUBCONTRACTING AGREEMENT
UNDER WHICH CONNELL AGREED TO CEASE DOING BUSINESS WITH NONUNION
MECHANICAL CONTRACTORS IS GOVERNED BY THE PROVISIONS OF SEC. 8(E) OF
THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. SEC. 158(E).  THE RELEVANT
LEGISLATIVE HISTORY UNMISTAKABLY DEMONSTRATES THAT IN REGULATING
SECONDARY ACTIVITY AND "HOT CARGO" AGREEMENTS IN 1947 AND 1959,
CONGRESS SELECTED WITH GREAT CARE THE SANCTIONS TO BE IMPOSED IF
PROSCRIBED UNION ACTIVITY SHOULD OCCUR.  IN SO DOING, CONGRESS REJECTED
EFFORTS TO GIVE PRIVATE PARTIESINJURED BY UNION ACTIVITY SUCH AS THAT
ENGAGED IN BY LOCAL 100 THE RIGHT TO SEEK RELIEF UNDER FEDERAL
ANTITRUST LAWS.  ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT BEFORE US.

        I 

FOR A PERIOD OF 15 YEARS, FROM PASSAGE OF THE NORRIS-LA GUARDIA ACT,
47 STAT. 70, IN 1932 /1/ UNTIL ENACTMENT OF THE LABOR MANAGEMENT
RELATIONS ACT (THE TAFT-HARTLEY ACT), 61 STAT. 136, IN 1947, UNION
ECONOMIC PRESSURE DIRECTED AGAINST A NEUTRAL, SECONDARY EMPLOYER WAS
NOT SUBJECT TO SANCTIONS UNDER EITHER FEDERAL LABOR LAW OR ANTITRUST
LAW, AT LEAST IN THE ABSENCE OF PROOF THAT THE UNION WAS COERCING THE
SECONDARY EMPLOYER IN FURTHERANCE OF A CONSPIRACY WITH A NONLABOR
GROUP.  SEE UNITED STATES V. HUTCHESON, 312 U.S. 219; ALLEN BRADLEY CO.
V. ELECTRICAL WORKERS, 325 U.S.797.  " CONGRESS ABOLISHED, FOR PURPOSES
OF LABOR IMMUNITY, THE DISTINCTION BETWEEN PRIMARY ACTIVITY BETWEEN THE
'IMMEDIATE DISPUTANTS' AND SECONDARY ACTIVITY IN WHICH THE
EMPLOYERDISPUTANTS AND THE MEMBERS OF THE UNION DO NOT STAND 'IN THE
PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE . . .'"  NATIONAL WOODWORK
MFRS.  ASSN.  V. NLRB, 386 U.S. 612, 623. 

IN HUNT V. CRUMBOCH, 325 U.S. 821, FOR EXAMPLE, THE COURT FOUND THAT
UNION CONDUCT IN FORCING A FREIGHT CARRIER OUT OF BUSINESS WAS
PROTECTED ACTIVITY BEYOND THE REACH OF THE FEDERAL ANTITRUST LAWS
EVENTHOUGH IT INVOLVED SECONDARY PRESSURE THAT CULMINATED IN THE
UNION'S COMPELLING THE CARRIER'S PRINCIPAL PATRON TO BREAK ITS CONTRACT
WITH THE CARRIER AND TO DISCHARGE THE CARRIER FROM FURTHER SERVICE.  "
THAT WHICH CONGRESS HAS RECOGNIZED AS LAWFUL," THE COURT NOTED, "THIS
COURT HAS NO CONSTITUTIONAL POWER TO DECLARE UNLAWFUL, BY ARGUING THAT
CONGRESS HAS ACCORDED TOO MUCH POWER TO LABOR ORGANIZATIONS."  ID., AT
825 N. 1. 

CONGRESSIONAL CONCERN OVER LABOR ABUSES OF THE BROAD IMMUNITY
GRANTED BY THE NORRIS-LA GUARDIA ACT WAS ONE OF THE CONSIDERATIONS THAT
RESULTED IN PASSAGE OF THE TAFT-HARTLEY ACT IN 1947, WHICH, AMONG OTHER
THINGS, PROHIBITED SPECIFIED UNION SECONDARY ACTIVITY.  SEE NATIONAL
WOODWARD MFRS.  ASSN.  V. NLRB, SUPRA, AT 623.  THE CENTRAL THRUST OF
THAT STATUTORY PROVISION WAS TO FORBID "A UNION TO INDUCE EMPLOYEES TO
STRIKE AGAINST OR TO REFUSE TO HANDLE GOODS FOR THEIR EMPLOYER WHEN AN
OBJECT IS TO FORCE HIM OR ANOTHER PERSON TO CEASE DOING BUSINESS WITH
SOME THIRD PARTY."  CARPENTERS' UNION V. NLRB, 357 U.S. 93, 98.  /2/ IN
CONDEMNING "SPECIFIC UNION CONDUCT DIRECTED TO SPECIFIC OBJECTIVES,"
IBID., HOWEVER, CONGRESS DELIBERATELY CHOSE NOT TO SUBJECT UNIONS
ENGAGING IN PROHIBITED SECONDARY ACTIVITY TO THE SANCTIONS OF THE
ANTITRUST LAWS. 

SESS., AS INITIALLY PASSED BY THE HOUSE, DEFINED "UNLAWFUL CONCERTED
ACTIVITIES" TO INCLUDE AN "ILLEGAL BOYCOTT."  1 NLRB LEGISLATIVE
HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, P. 205
(HEREINAFTER LEG.  HIST.  OF LMRA).  SECTION 12(C) PROVIDED THAT THE
NORRIS-LA GUARDIA ACT SHOULD HAVE NO "APPLICATION IN ANY ACTION OR
PROCEEDING IN A COURT OF THE UNITED STATES INVOLVING ANY ACTIVITY
DEFINED IN THIS SECTION AS UNLAWFUL."  ID., AT 206 - 207.  THE
COMMITTEE ON EDUCATION AND LABOR EXPLAINED IN ITS REPORT ON THE HARTLEY
BILL: 

" ILLEGAL BOYCOTTS TAKE MANY FORMS.  . .  SOMETIMES THEY ARE DIRECT
RESTRAINTS OF TRADE, DESIGNED TO COMPEL PEOPLE AGAINST WHOM THEY ARE
ENGAGED IN TO PLACE THEIR BUSINESS WITH SOME OTHER THAN THOSE THEY ARE
DEALING WITH AT THE TIME.  . . . UNDER (SECTION 12), THESE PRACTICES
ARE CALLED BY THEIR CORRECT NAME, 'UNLAWFUL CONCERTED ACTIVITIES.'  IT
IS PROVIDED THAT ANY PERSON INJURED IN HIS PERSON, PROPERTY, OR
BUSINESS BY AN UNLAWFUL CONCERTED ACTIVITY AFFECTING COMMERCE MAY SUE
THE PERSON OR PERSONS RESPONSIBLE FOR THE INJURY IN ANY DISTRICT COURT
HAVING JURISDICTION OF THE PARTIES AND RECOVER DAMAGES.  THE BILL MAKES
INAPPLICABLE IN SUCH SUITS THE NORRIS-LA GUARDIA ACT, WHICH HERETOFORE
HAS PROTECTED PARTIES TO INDUSTRIAL STRIFE FROM THE CONSEQUENCES OF
THEIR LAWLESSNESS, NO MATTER HOW VIOLENT THEIR DISPUTES BECAME. 
PERSONS WHO ENGAGE IN UNLAWFUL CONCERTED ACTIVITIES ARE SUBJECT TO
LOSING THEIR RIGHTSAND PRIVILEGES UNDER THE ACT."  H.R. REP. NO. 245,
80TH CONG., 1ST SESS., 24, 44, 1 LEG.  HIST.  OF LMRA 315, 335. 

THE SENATE, HOWEVER, REFUSED TO ADOPT THE HOUSE'S REMOVAL OF
ANTITRUST IMMUNITY FOR PROHIBITED SECONDARY ACTIVITY, CHOOSING INSTEAD
TO MAKE THE REMEDIES AVAILABLE UNDER FEDERAL LABOR LAW EXCLUSIVE.  THE
SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE APPROVED S. 1126, 80TH
CONG., 1ST SESS., WHICH PROVIDED THAT PROSCRIBED SECONDARY CONDUCT
WOULD BE AN UNFAIR LABOR PRACTICE AND COULD BE ENJOINED ON APPLICATION
OF THE NATIONAL LABOR RELATIONS BOARD.  NO PRIVATE REMEDY FOR AN
INJURED EMPLOYER WAS AUTHORIZED IN THE BILL APPROVED BY THE COMMITTEE. 
SEE S.REP.  NO. 105, 80TH CONG., 1ST SESS., 7 - 8, 22, 1 LEG.  HIST. 
LMRA 413 - 414, 428. 

FOUR MEMBERS OF THE SENATE COMMITTEE, ALTHOUGH SUPPORTING THE
PROVISIONS OF S. 1126 AS REPORTED BY THE COMMITTEE, FELT THAT A NUMBER
OF THE PROVISIONS OF THE BILL COULD BE STRONGER.  ID., AT 50, 1 LEG. 
HIST.  OF LMRA 456.  IN PARTICULAR, THE MINORITY SENATORS PROPOSED: 

" AN AMENDMENT REINSERTING IN THE BILL A SECTION MAKING SECONDARY
BOYCOTTS AND JURISDICTIONAL STRIKES UNLAWFUL AND PROVIDING FOR DIRECT
SUIT IN THE COURTS BY ANY INJURED PARTY.  . . .

        * * * * * 

     " THE AMENDMENT PROPOSES THAT (THE INJURED PARTY) BE ENTITLED

  TO FILE A SUIT FOR DAMAGES AND OBTAIN A TEMPORARY INJUNCTION

  WHILE THAT SUIT IS BEING HEARD.  . . .

        * * * * * 

     " THE AMENDMENT, FURTHERMORE, REMOVES THE PROTECTION OF THE

  CLAYTON ACT FROM MONOPOLY AGREEMENTS TO FIX PRICES, ALLOCATE

CUSTOMERS, RESTRICT PRODUCTION, DISTRIBUTION, OR COMPETITION, OR

  IMPOSE RESTRICTIONS OR CONDITIONS ON THE PURCHASE, SALE, OR USE

  OF MATERIAL, MACHINES, OR EQUIPMENT.  WHILE THE EXISTENCE OF THE

  UNION SHOULD NOT BE A COMBINATION IN RESTRAINT OF TRADE, WE SEE

  NO REASON WHY UNIONS SHOULD NOT BE SUBJECT IN THIS FIELD TO THE

  SAME RESTRICTION AS ARE COMPETING EMPLOYERS."  ID., AT 54 - 55, 1

  LEG.  HIST.  OF LMRA 460 - 461. 

SENATOR BALL, ONE OF THE FOUR MINORITY SENATORS ON THE LABOR AND PUBLIC
WELFARE COMMITTEE, DID IN FACT OFFER AN AMENDMENT ON THE SENATE FLOOR
THAT WAS "DESIGNED TO CORRECT THE INTERPRETATION OF THE NORRIS-LA
GUARDIA AND CLAYTON ACTS MADE BY THE SUPREME COURT IN THE HUTCHINSON
(SIC) CASE, AND A NUMBER OF OTHER CASES BROUGHT BY FORMER ASSISTANT
ATTORNEY GENERAL THURMAN ARNOLD, WHEN HE ATTEMPTED TO BREAK UP
MONOPOLISTIC PRACTICES ON THE PART OF LABOR UNIONS, SOMETIMES ACTING ON
THEIR OWN, SOMETIMES IN CONSPIRACY WITH EMPLOYERS."  93 ONC.  REC. 
4838, 2 LEG.  HIST.  OF LMRA 1354.  /3/ 

ALTHOUGH STATING THAT HE PERSONALLY AGREED WITH THE CHANGES PROPOSED
BY SENATOR BALL, SENATOR TAFT ARGUED FOR DEFEAT OF THE BALL AMENDMENT,
EXPLAINING THAT RESISTANCE TO PROVIDING A PRIVATE INJUNCTIVE REMEDYIN
CASES OF SECONDARY BOYCOTTS WAS SO STRONG THAT AN ATTEMPT TO ELIMINATE
THE LABOR EXEMPTION FROM THE ANTITRUST LAWS WOULD LEAD TO THE DEFEAT OF
ANY EFFORT TO PROVIDE FOR A PRIVATE DAMAGES REMEDY FOR INJURED
PARTIES.  SENATOR TAFT PROPOSED AS A SUBSTITUTE THAT PRIVATE PARTIES BE
GIVEN ONLY THE RIGHT TO SUE FOR ACTUAL DAMAGES.  ID., AT 4843 - 4844, 2
LEG.  HIST.  OF LMRA 1365.  THE BALL AMENDMENT WAS THEREAFTER DEFEATED,
ID., AT 4847, 2 LEG.  HIST.  OF LMRA 1369 - 1370, AND SENATOR TAFT
INTRODUCED HIS PROPOSAL "TO RESTORE TO PEOPLE WHO LOSE SOMETHINGBECAUSE
OF BOYCOTTS AND JURISDICTIONAL STRIKES THE MONEY WHICH THEY HAVE
LOST."  ID., AT 4858, 2 LEG.  HIST.  OF LMRA 1370 - 1371. 

IN RESPONSE TO SENATOR MORSE'S CLAIM THAT THE PROPOSAL WOULD IMPOSE
VIRTUALLY UNLIMITED LIABILITY ON UNIONS, SENATOR TAFT MADE PLAIN THAT
HE WAS NOT ADVOCATING THE USE OF ANTITRUST SANCTIONS AGAINST PROHIBITED
SECONDARY ACTIVITY.  " UNDER THE SHERMAN ACT THE SAME QUESTION OF
BOYCOTT DAMAGE IS SUBJECT TO A SUIT FOR (TREBLE) DAMAGES AND ATTORNEYS'
FEES.  IN THIS CASE WE SIMPLY PROVIDE FOR THE AMOUNT OF THE ACTUAL
DAMAGES."  93 CONG. REC. 4872 - 4873, 2 LEG.  HIST.  OF LMRA 1398; SEE
TEAMSTERS V. MORTON, 377 U.S. 252, 260 N. 16.  SENATOR TAFT'S PROPOSAL
FOR A PRIVATE DAMAGES REMEDY UNDER FEDERAL LABOR LAW WAS ADOPTED BY THE
SENATE.  93 CONG. REC. 4874 - 4875, 2 LEG.  HIST.  OF LMRA 1399 -
1400. 

IN CONFERENCE, THE HOUSE MEMBERS AGREED TO ELIMINATE THE PROVISIONS
OF THE HARTLEY BILL WHICH, LIKE THE BALL AMENDMENT, PROVIDED THAT THE
NORRIS-LA GUARDIA ACT SHOULD HAVE NO APPLICATION TO PRIVATE SUITS FOR
UNLAWFUL SECONDARY ACTIVITY.  SEE H.R.CONF.  REP.  NO. 510, 80TH CONG.,
1ST SESS., 58 - 59, 1 LEG.  HIST.  OF LMRA 562 - 563.  WITH ONLY
"CLARIFYING CHANGES," ID., AT 67, 1 LEG.  HIST.  OF LMRA 571, THE HOUSE
SENATE CONFEREES AND THEN BOTH HOUSES OF CONGRESS AGREED TO REGULATE
UNION SECONDARY ACTIVITY BY MAKING SPECIFIED ACTIVITY AN UNFAIR LABOR
PRACTICE UNDER SEC. 8(B)(4) OF THE NATIONAL LABOR RELATIONS ACT,
AUTHORIZING THE BOARD TO SEEK INJUNCTIONS AGAINST SUCH ACTIVITY, 29
U.S.C. SEC. 160(L), AND PROVIDING FOR RECOVERY OF ACTUAL DAMAGES IN A
SUIT BY A PRIVATE PARTY UNDER SENATOR TAFT'S COMPROMISE PROPOSAL, WHICH
BECAME SEC. 303 OF THE LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C. SEC.
187.  /4/ CONGRESS IN 1947 DID NOT PROHIBIT ALL SECONDARY ACTIVITY BY
LABOR UNIONS, SEE CARPENTERS V. NLRB, 357 U.S. 93; AND THOSE PRACTICES
WHICH IT DID OUTLAW WERE TO BE REMEDIED ONLY BY SEEKING RELIEF FROM THE
BOARD OR BY PURSUING THE NEWLY CREATED, EXCLUSIVE FEDERAL DAMAGES
REMEDY PROVIDED BY SEC. 303.  TEAMSTERS V. MORTON, SUPRA.

       II 

CONTRARY TO THE ASSERTION IN THE COURT'S OPINION, ANTE, AT 634, THE
DELIBERATE CONGRESSIONAL DECISION TO MAKE SEC. 303 THE EXCLUSIVE
PRIVATE REMEDY FOR UNLAWFUL SECONDARY ACTIVITY IS CLEARLY RELEVANT TO
THE QUESTION OF LOCAL 100'S ANTITRUST LIABILITY IN THE CASE BEFORE US.
THE COURT IS CORRECT, OF COURSE, IN NOTING THAT SEC. 8(E)'S PROHIBITION
OF "HOT CARGO" AGREEMENTS WAS NOT ADDED TO THE ACT UNTIL 1959, AND THAT
SEC. 303 WAS NOT THEN AMENDED TO COVER SEC. 8(E) VIOLATIONS STANDING
ALONE.  BUT AS PART OF THE 1959 AMENDMENTS DESIGNED TO CLOSE "TECHNICAL
LOOPHOLES" PERCEIVED IN THE TAFT-HARTLEY ACT, CONGRESS AMENDED SEC.
8(B)(4) TO MAKE IT AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION TO
THREATEN OR COERCE A NEUTRAL EMPLOYER, EITHER DIRECTLY OR THROUGH HIS
EMPLOYEES, WHERE AN OBJECT OF THE SECONDARY PRESSURE IS TO FORCE THE
EMPLOYER TO ENTER INTO AN AGREEMENT PROHIBITED BY SEC. 8(E).  /5/ AT
THE SAME TIME, CONGRESS EXPANDED THE SCOPE OF THE SEC. 303 DAMAGES
REMEDY TO ALLOW RECOVERY OF THE ACTUAL DAMAGES SUSTAINED AS A RESULT OF
A UNION'S ENGAGING IN SECONDARY ACTIVITY TO FORCE AN EMPLOYER TO SIGN
AN AGREEMENT IN VIOLATION OF SEC. 8(E).  /6/  IN SHORT, CONGRESS HAS
PROVIDED AN EMPLOYER LIKE CONNELL WITH A FULLY EFFECTIVE PRIVATE
DAMAGES REMEDY FOR THE ALLEGEDLY UNLAWFUL UNION CONDUCTINVOLVED IN THIS
CASE. 

THE ESSENCE OF CONNELL'S COMPLAINT IS THAT IT WAS COERCED BY LOCAL
100'S PICKETING INOT "CONSPIRING" WITH THE UNION BY SIGNING AN
AGREEMENT THAT LIMITED ITS ABILITY TO SUBCONTRACT MECHANICAL WORK ON A
COMPETITIVE BASIS.  /7/  IF, AS THE COURT TODAY HOLDS, THE
SUBCONTRACTING AGREEMENT IS NOT WITHIN THE CONSTRUCTION-INDUSTRY
PROVISIO TO SEC. 8(E), THEN LOCAL 100'S PICKETING TO INDUCE CONNELL TO
SIGN THE AGREEMENT CONSTITUTED A SEC. 8(B)(4) UNFAIR LABOR PRACTICE,
AND WAS THEREFORE ALSO UNLAWFUL UNDER SEC. 303(A), 29 U.S.C. SEC.
187(A).  /8/ ACCORDINGLY, CONNELL HAS THE RIGHT TO SUE LOCAL 100 FOR
DAMAGES SUSTAINED AS A RESULT OF LOCAL 100'S UNLAWFUL SECONDARY
ACTIVITY PURSUANT TO SEC. 303(B), 29 U.S.C. SEC. 187(B).  ALTHOUGH
"LIMITED TO ACTUAL, COMPENSATORY DAMAGES," TEAMSTERS V. MORTON, 377
U.S., AT 260, CONNELL WOULD BE ENTITLED UNDER SEC. 303 TO RECOVER ALL
DAMAGES TO ITS BUSINESS THAT RESULTED FROM THE UNION'S COERCIVE
CONDUCT, INCLUDING ANY PROVABLE DAMAGE CAUSED BY CONNELL'S INABILITY TO
SUBCONTRACT MECHANICAL WORK TO NONUNION FIRMS.  SIMILARLY, ANY NONUNION
MECHANICAL CONTRACTOR WHO BELIEVES HIS BUSINESS HAS BEEN HARMED BY
LOCAL 100'S HAVING COERCED CONNELL INTO SIGNING THE
SUBCONTRACTINGAGREEMENT IS ENTITLED TO SUE THE UNION FOR COMPENSATORY
DAMAGES; FOR SEC. 303 BROADLY GRANTS ITS DAMAGES ACTION TO "(WHOEVER
SHALL BE INJURED IN HIS BUSINESS OR PROPERTY" BY REASON OF A LABOR
ORGANIZATION'S ENGAGING IN A SEC. 8(B)(4) UNFAIR LABOR PRACTICE.  /9/ 

MOREOVER, THERE IS CONSIDERABLE EVIDENCE IN THE LEGISLATIVE
MATERIALS INDICATING THAT IN EXPANDING THE SCOPE OF SEC. 303 TO INCLUDE
A REMEDY FOR SECONDARY PRESSURE DESIGNED TO FORCE AN EMPLOYER TO SIGN
AN ILLEGAL "HOT CARGO" CLAUSE AND IN RESTRICTING THE REMEDIES FOR
VIOLATION OF SEC. 8(E) ITSELF TO THOSE AVAILABLE FROM THE BOARD,
CONGRESS IN 1959 MADE THE SAME DELIBERATE CHOICE TO EXCLUDE ANTITRUST
REMEDIES AS WAS MADE BY THE 1947 CONGRESS. 

WHILE THE HOUSE WAS CONSIDERING LABOR REFORM LEGISLATION IN THE
SUMMER OF 1959, SPECIFIC PROPOSALS WERE MADE TO APPLY THE ANTITRUST
LAWS TO LABOR UNIONS.  REPRESENTATIVE HIESTAND OF CALIFORNIA INTRODUCED
A BILL WHICH "WOULD SOLVE MANY OF THE PROBLEMS ATTENDING UNBRIDLED
UNION POWER AS IT EXISTS AND OPERATES IN THIS COUNTRY.  MY PROPOSAL IS
IN THE NATURE OF ANTITRUST LEGISLATION, APPLIED TO LABOR UNIONS."  05
CONG. REC. 12135, 2 NLRB LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT OF 1959, P. 1507 (HEREINAFTER LEG.  HIST. 
OF LMRDA).  REPRESENTATIVE ALGER OF TEXAS JOINED IN COSPONORING THE
LEGISLATION, STATING THAT "(UNION MONOPOLY POWER"  MANIFESTS ITSELF IN
"RESTRICTIVE TRADE PRACTICES SUCH AS PRICE FIXING, RESTRICTIONS ON USE
OF NEW PROCESSES AND TECHNOLOGICAL IMPROVEMENTS, EXCLUSION OF PRODUCTS
FOR THE MARKET, AND SO FORTH.  . . . THIS BILL DEALS DIRECTLY WITH
(THIS ASPECT) OF UNION MONOPOLY POWER."  105 CONG. REC. 12136, 2 LEG. 
HIST.  OF LMRDA 1507.  REPRESENTATIVE ALGER ADDED THE FOLLOWING
EXPLANATION OF THE BILL: 

     " UNDER THE LANGUAGE OF H.R. 8003 ANY ATTEMPT BY A UNION TO

  INDUCE AN EMPLOYER OR A GROUP OF EMPLOYERS TO COMPLY WITH A UNION

  DEMAND WHICH WOULD RESULT IN RESTRICTIVE TRADE PRACTICES WOULD BE

  UNLAWFUL, AND AN EMPLOYER FACED WITH SUCH A DEMAND COULD SEEK

LEGAL REMEDIES TO RESTRAIN THE UNION FROM ENFORCING ITS DEMAND. 

  THE CONSEQUENT DENIAL TO UNIONS OF THE RIGHT TO FIX PRICES OR

  IMPOSE OTHER ARTIFICIAL MARKET LIMITATIONS WOULD NOT IN ANY WAY

  INTERFERE WITH NORMAL AND LEGITIMATE UNION FUNCTIONS OR WITH

  THEIR PROPER COLLECTIVE BARGAINING POWERS.  THEY WOULD MERELY BE

  PLACED ON AN EQUALFOOTING WITH ALL OTHER GROUPS IN SOCIETY AS WAS

  THE CASE DURING THE FIFTY YEARS PRIOR TO THE HUTCHESON

  DECISION."  ID., AT 12137, 2 LEG.  HIST.  OF LMRDA 1508. 

THE LANDRUM-GRIFFIN BILL, H.R. 8400, 86TH CONG., 1ST SESS., WHICH,
AS AMENDED, WAS ENACTED AS THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959, /10/ BY CONTRAST, CLEARLY PROVIDED THAT THE NEW
SECONDARY-BOYCOTT AND "HOT CARGO" PROVISIONS WERE TO BE ENFORCED SOLELY
THROUGH THE BOARD AND BY USE OF THE SEC. 303 DAMAGES REMEDY.  SEE 105
CONG. REC. 14347 - 14348, 2 LEG.  HIST.  OF LMRDA 1522 - 1523. 
RECOGNIZING THIS IMPORTANT DIFFERENCE, REPRESENTATIVE ALGER PROPOSED TO
AMENDTHE LANDRUM-GRIFFIN BILL BY ADDING, AS AN ADDITIONAL TITLE, THE
ANTITRUST PROVISIONS OF H.R. 8003.  ID., AT 15532 - 15533, 2 LEG. 
HIST.  OF LMRDA 1569.  REPRESENTATIVE ALGER ONCE AGAIN STATED THAT HIS
PROPOSED AMENDMENT WOULD MAKE IT UNLAWFUL FOR AN INDIVIDUALLOCAL UNION
TO "(ENTER INTO ANY ARRANGEMENT--VOLUNTARYOR COERCED--WITH ANY
EMPLOYER, GROUPS OF EMPLOYERS, OR OTHER UNIONS WHICH CAUSE PRODUCT
BOYCOTTS, PRICE FIXING, OR OTHER TYPES OF RESTRICTIVE TRADE
PRACTICES."  ID., AT 15533, 2 LEG.  HIST.OF LMRDA 1569. 

REPRESENTATIVE GRIFFIN RESPONDED TO REPRESENTATIVE ALGER'S PROPOSED
AMENDMENT BY OBSERVING: 

"(IT) SERVES TO POINT OUT THAT THE SUBSTITUTE (THE LANDRUM-GRIFFIN
BILL) IS A MINIMUM BILL.  IT MIGHT BE WELL AT THIS POINT TO MENTION
SOME PROVISIONS THAT ARE NOT IN IT. 

     " THERE IS NOT ANTITRUST LAW PROVISION IN THIS BILL. 

        * * * * * 

     " THIS IS TRULY A MINIMUM BILL THAT A RESPONSIBLE CONGRESS

  SHOULD PASS.  I BELIEVE I SPEAK FOR THE GENTLEMAN FROM GEORGIA

  MR. LANDRUM), AS WELL AS MYSELF WHEN I SAY THAT IF AMENDMENTS ARE

  OFFERED ON THE FLOOR TO ADD ANTITRUST PROVISIONS OR OTHERS THAT

HAVE BEEN MENTIONED, I, FOR ONE, WILL OPPOSE THEM.  THE GENTLEMAN

  FROM GEORGIA AND I HAVE TRIED TO BALANCE DELICATELY THE

  PROVISIONS WHICH WE BELIEVE SHOULD BE IN A BILL AT THIS TIME AND

  WHICH A MAJORITY OF THIS BODY COULD SUPPORT."  ID., AT 15535, 2

  LEG.  HIST.  OF LMRDA 1571 - 1572. 

THE ALGER AMENDMENT WAS REJECTED, AS WERE ADDITIONAL EFFORTS TO
SUBJECT PROSCRIBED UNION ACTIVITIES TO THE ANTITRUST LAWS AND THEIR
SANCTIONS.  SEE, E.G., ID., AT 15853, 2 LEG.  HIST.  OF LMRDA 1685
(AMENDMENT OFFERED BY REP. HOFFMAN).  THE HOUSE THEN ADOPTED THE
LANDRUM-GRIFFIN BILL OVER PROTESTS THAT IT "DOES NOT GO FAR ENOUGH,
THAT IT NEEDS MORE TEETH, AND THAT MORE TEETH ARE GOING TO COME IN THE
FORM OF LEGISLATION TO BRING LABOR UNION ACTIVITIES UNDER THE ANTITRUST
LAWS."  ID., AT 15858, 2 LEG.  HIST.  OF LMRDA 1690 (REMARKS OF REP.
ALGER); SEE ID., AT 15859 - 15860, 2 LEG.  HIST.  OF LMRDA 1691 - 1692
(ADOPTION OF THE LANDRUM AMENDMENT TO H.R. 8342, SUBSTITUTING IN LIEU
OF THE TEXT THEREOFTHE TEXT OF H.R. 8400 AS AMENDED). 

THE HOUSE-SENATE CONFEREES MADE SOME SUBSTANTIVE CHANGES IN THE
LANGUAGE OF THE AMENDMENTS TO SEC. 8(B)(4), AND ALSO ADDED THE
CONSTRUCTION AND GARMENT-INDUSTRY PROVISOS TO SEC. 8(E).  SEE GENERALLY
COX, THE LANDRUM-GRIFFIN AMENDMENTS TO THE NATIONAL LABOR RELATIONS
ACT, 44 MINN. L.REV.  257.  BUT NO CHANGE WAS MADE IN THE NATURE OF THE
SANCTIONS AUTHORIZED FOR VIOLATIONS OF EITHER SECTION BY THE HOUSE
PASSED LANDRUM-GRIFFIN BILL:  AN INJURED PARTY COULD EITHER SEEK RELIEF
FROM THE BOARD OR BRING SUIT FOR DAMAGES UNDER SEC. 303 AGAINST UNIONS
THAT VIOLATE THE REVISED SECONDARY-BOYCOTT PROHIBITIONS.  NO PROVISIONS
WERE MADE FOR EXPOSING PROSCRIBED UNION SECONDARY ACTIVITY OR "HOT
CARGO" AGREEMENTS TO ANTITRUST LIABILITY.  SEE H.R.CONF.  REP.  NO.
1147, 86TH CONG., 1ST SESS., 1 LEG.  HIST.  OF LMRDA 934.  /11/ 

INDEED, TWO YEARS AFTER ENACTMENT OF THE LANDRUM-GRIFFIN ACT,
SENATOR MC CLELLAN, WHOSE COMMITTEE HEARINGS INTO ABUSES CAUSED BY
CONCENTRATED LABOR POWER HAD PLAYED A MAJOR ROLE IN GENERATING SUPPORT
FOR THE 1959 LABOR REFORM LEGISLATION, TOGETHER WITH FIVE OTHER
SENATORS, INTRODUCED A BILL TO PROVIDE ANTITRUST SANCTIONS FOR ILLEGAL
"HOT CARGO" AGREEMENTS IN THE TRANSPORTATION INDUSTRY, DESPITE THE FACT
THAT SUCH AGREEMENTS WERE ALREADY EXPRESSLY PROHIBITED BY SEC. 8(E). 
/12/ AS IT HAD IN 1947 AND 1959, HOWEVER, CONGRESS IN 1961 REJECTED
THIS EFFORT TO SUBJECT ILLEGAL UNION SECONDARY CONDUCT TO THE SANCTIONS
OF THE ANTITRUST LAWS. 

IN SUM, THE LEGISLATIVE HISTORY OF THE 1947 AND 1959 AMENDMENTS AND
ADDITIONS TO NATIONAL LABOR LAW CLEARLY DEMONSTRATES THAT CONGRESS DID
NOT INTEND TO RESTORE ANTITRUST SANCTIONS FOR SECONDARY BOYCOTT
ACTIVITY SUCH AS THAT ENGAGED IN BY LOCAL 100 IN THIS CASE, BUT RATHER
INTENDED TO SUBJECT SUCH ACTIVITY ONLY TO REGULATION UNDER THE NATIONAL
LABOR RELATIONS ACT AND SEC. 303 OF THE LABOR MANAGEMENT RELATIONS
ACT.  THE JUDICIAL IMPOSITION OF "INDEPENDENT FEDERAL REMEDIES" NOT
INTENDED BY CONGRESS, NO LESS THAN THE APPLICATION OF STATE LAW TO
UNION CONDUCT THAT IS EITHER PROTECTED OR PROHIBITED BY FEDERAL LABOR
LAW, /13/  THREATENS "TO UPSET THE BALANCE OF POWER BETWEEN LABOR AND
MANAGEMENT EXPRESSED IN OUR NATIONAL LABOR POLICY."  TEAMSTERS V.
MORTON, 377 U.S., AT 260.  SEE CARPENTERS V. NLRB, 357 U.S., AT 98 -
100; NATIONAL WOODWORK MFRS.  ASSN.  V. NLRB, 386 U.S., AT 619 - 620. 
ACCORDINGLY, THE JUDGMENT BEFORE US SHOULD BE AFFIRMED. 

/1/ BEFORE 1932 THIS COURT HAD HELD THAT SECONDARY STRIKES AND
BOYCOTTS WERE NOT EXEMPT FROM THE COVERAGE OF THE ANTITRUST LAWS. 
E.G., DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443; BEDFORD CUT
STONE CO. V. JOURNEYMEN CUTTERS' ASSN., 274 U.S. 37.  DUPLEX AND ITS
PROGENY WERE OVERRULED BY CONGRESS WITH PASSAGE OF THE NORRIS-LA
GUARDIA ACT, 47 STAT. 70.  SEE MILK WAGON DRIVERS' UNION V. LAKE VALLEY
FARM PRODUCTS, INC., 311 U.S. 91, 100 - 103; UNITED STATES V.
HUTCHESON, 312 U.S. 219, 229 - 231, 235 - 237. 

/2/ THE ACT ADDED SEC. 8(B)(4) TO THE NATIONAL LABOR RELATIONS ACT,
MAKING IT AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS
AGENTS "TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS:  (A) FORCING OR
REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR
EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON . . . ."  61 STAT. 141. 

/3/ THE AMENDMENT INTRODUCED BY SENATOR BALL PROVIDED IN PART THAT
THE CLAYTON ACT AND THE NORRIS-LA GUARDIA ACT "SHALL NOT BE APPLICABLE
IN RESPECT OF VIOLATIONS OF SUBSECTION (A) (DEFINING PROHIBITED
SECONDARY CONDUCT), OR IN RESPECT OF ANY CONTRACT, COMBINATION, OR
CONSPIRACY, IN RESTRAINT OF COMMERCE, TO WHICH A LABOR ORGANIZATION IS
A PARTY, IF ONE OF THE PURPOSES OF SUCH CONTRACT, COMBINATION, OR
CONSPIRACY IS TO FIX PRICES, ALLOCATE CUSTOMERS, RESTRICT PRODUCTION,
DISTRIBUTION, OR COMPETITION, OR IMPOSE RESTRICTIONS OR CONDITIONS UPON
THE PURCHASE, SALE OR USE OF ANY MATERIAL, MACHINES, OR EQUIPMENT."  93
CONG. REC. 4757. 

/4/ SECTION 303 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, 61
STAT. 158 - 159, PROVIDED: 

"(A) IT SHALL BE UNLAWFUL, FOR THE PURPOSE OF THIS SECTION ONLY, IN
AN INDUSTRY OR ACTIVITY AFFECTING COMMERCE, FOR ANY LABOR ORGANIZATION
TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY EMPLOYER
TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF THEIR
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE
OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM
ANY SERVICES, WHERE AN OBJECT THEREOF IS--, 

"(1) FORCING OR REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO
JOIN ANY LABOR OR EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON
TO CEASE USING, SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING
IN THE PRODUCTS OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR
TO CEASE DOING BUSINESS WITH ANY OTHER PERSON;

        * * * * * 

"(B) WHOEVER SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY REASON
OF) ANY VIOLATION OF SUBSECTION (A) MAY SUE THEREFOR IN ANY DISTRICT
COURT OF THE UNITED STATES SUBJECT TO THE LIMITATIONS AND PROVISIONS OF
ANY OTHER COURT HAVING JURISDICTION OF THE PARTIES, AND SHALL RECOVER
THE DAMAGES BY HIM SUSTAINED AND THE COST OF THE SUIT." 

/5/ SECTION 8(B)(4) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY
THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT.
519, 542 - 543, NOW PROVIDES IN PART THAT IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS: 

"(4)(I) TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE
OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM
ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY PERSON
ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE IN
EITHER CASE AN OBJECT THEREOF IS--, 

"(A) FORCING OR REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO
JOIN ANY LABOR OR EMPLOYER ORGANIZATION OR TO ENTER INTO ANY AGREEMENT
WHICH IS PROHIBITED BY SUBSECTION (E) OF THIS SECTION.  . . ."  29
U.S.C. SEC. 158(B)(4). 

/6/ SECTION 303, AS AMENDED BY THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959, 73 STAT. 519, 545, NOW PROVIDES: 

"(A) IT SHALL BE UNLAWFUL, FOR THE PURPOSE OF THIS SECTION ONLY, IN
AN INDUSTRY OR ACTIVITY AFFECTING COMMERCE, FOR ANY LABOR ORGANIZATION
TO ENGAGE IN ANY ACTIVITY OR CONDUCT DEFINED AS AN UNFAIR LABOR
PRACTICE IN SECTION 158(B)(4) OF THIS TITLE. 

"(B) WHOEVER SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY REASON
OF) ANY VIOLATION OF SUBSECTION (A) OF THIS SECTION MAY SUE THEREFOR IN
ANY DISTRICT COURT OF THE UNITED STATES SUBJECT TO THE LIMITATIONS AND
PROVISIONS OF SECTION 185 OF THIS TITLE WITHOUT RESPECT TO THE AMOUNT
IN CONTROVERSY, OR IN ANY OTHER COURT HAVING JURISDICTION OF THE
PARTIES, AND SHALL RECOVER THE DAMAGES BY HIM SUSTAINED AND THE COST OF
THE SUIT."  29 U.S.C. SEC. 187. 

/7/ INDEED, CONNELL'S ORIGINAL STATE-COURT COMPLAINT WAS FILED
BEFORE CONNELL HAD SIGNED ANY AGREEMENT WITH LOCAL 100.  SEE ANTE, AT
620.  AT THAT POINT IT WAS APPARENT THAT THE PRIMARY REASON FOR THE
LAWSUIT WAS CONNELL'S REQUEST FOR AN INJUNCTION TO STOP THE UNION'S
PICKETING. 

/8/ IF CONTRARY TO THE COURT'S CONCLUSION, SEE ANTE, AT 626 - 633,
CONGRESS INTENDED WHAT IT SAID IN THE PROVISO TO SEC. 8(E), THEN THE
SUBCONTRACTING AGREEMENT IS VALID AND, UNDER THE VIEW OF THE BOARD AND
THOSE COURTS OF APPEALS THAT HAVE CONSIDERED THE QUESTION, LOCAL 100'S
PICKETING TO OBTAIN THE AGREEMENT WOULD ALSO BE LAWFUL.  SEE E.G.,
ORANGE BELT DISTRICT COUNCIL OF PAINTERS V. NLRB, 117 U.S. APP. D.C.
233, 236, 328 F.2D 534, 537; CONSTRUCTION LABORERS V. NLRB, 323 F.2D
422 (CA9); NORTHEASTERN INDIANA BLDG. TRADES COUNCIL, 148 N.L.R.B. 854,
ENFORCEMENT DENIED ON OTHER GROUNDS, 122 U.S.APP.  D.C. 220, 352 F.2D
696.  CONNELL WOULD THEREFORE HAVE NEITHER A REMEDY UNDER SEC. 303 NOR
ONE WITH THE BOARD. 

IT WOULD SEEM NECESSARILY TO FOLLOW THAT CONDUCT SPECIFICALLY
AUTHORIZED BY CONGRESS IN THE NATIONAL LABOR RELATIONS ACT COULD NOT BY
ITSELF BE THE BASIS FOR FEDERAL ANTITRUST LIABILITY, UNLESS THE COURT
INTENDS TO RETURN TO THE ERA WHENTHE JUDICIARY FRUSTRATED CONGRESSIONAL
DESIGN BY DETERMINING FOR ITSELF "WHAT PUBLIC POLICY IN REGARD TO THE
INDUSTRIAL STRUGGLE DEMANDS."  DUPLEX PRINTING PRESS CO. V. DEERING,
254 U.S. 443, 485 (BRANDEIS, J., DISSENTING).  SEE UNITED STATES V.
HUTCHESON, 312 U.S. 219.  IN MY VIEW, HOWEVER, EVEN IF LOCAL 100'S
CONDUCT WAS UNLAWFUL, CONNELL MAY NOT SEEK TO INVOKE THE SANCTIONS OF
THE ANTITRUST LAWS.  ACCORDINGLY, I FIND IT UNNECESSARY TO DECIDE IN
THIS CASE WHETHER THE SUBCONTRACTING AGREEMENT ENTERED INTO BY CONNELL
AND LOCAL 100 IS WITHIN THE AMBIT OF THE CONSTRUCTION INDUSTRY PROVISIO
TO SEC. 8(E), AND IF IT IS, WHETHER IT WAS PERMISSIBLE FOR LOCAL 100 TO
UTILIZE PEACEFUL PICKETING TO INDUCE CONNELL TO SIGN THE AGREEMENT. 
/9/ IF CONNELL AND LOCAL 100 HAD ENTERED INTO A PURELY VOLUNTARY "HOT
CARGO" AGREEMENT IN VIOLATION OF SEC. 8(E), AN INJURED NONUNION
MECHANICAL SUBCONTRACTOR WOULD HAVE NO SEC. 303 REMEDY BECAUSE THE
UNION WOULD NOT HAVE ENGAGED IN ANY SEC. 8(B)(4) UNFAIR LABOR
PRACTICE.  THE SUBCONTRACTOR, HOWEVER, WOULD STILL BE ABLE TO SEEK THE
FULL RANGE OF BOARD REMEDIES AVAILABLE FOR A SEC. 8(E) UNFAIR LABOR
PRACTICE.  MOREOVER, IF CONNELL HAD TRULY AGREED TO LIMIT ITS
SUBCONTRACTING WITHOUT ANY COERCION WHATSOEVER ON THE PART OF LOCAL
100, THE AFFECTED SUBCONTRACTOR MIGHT WELL HAVE A VALID ANTITRUST CLAIM
ON THE GROUND THAT LOCAL 100 AND CONNELL WERE ENGAGED IN THE TYPE OF
CONSPIRACY AIMED AT THIRD PARTIES WITH WHICH THIS COURT DEALT IN ALLEN
BRADLEY CO. V. ELECTRICAL WORKERS, 325 U.S. 797.  AT THE VERY LEAST, AN
ANTITRUST SUIT BY AN INJURED SUBCONTRACTOR UNDER CIRCUMSTANCES IN WHICH
CONGRESS HAD FAILED TO PROVIDEANY FORM OF PRIVATE REMEDY FOR DAMAGE
RESULTING FROM AN ILLEGAL "HOT CARGO" AGREEMENT WOULD PRESENT A VERY
DIFFERENT QUESTION FROM THE ONE BEFORE US__A QUESTION WHICH IT IS NOT
NOW NECESSARY TO ANSWER.  CF. MEAT CUTTERS V. JEWEL TEA CO., 381 U.S.
676, 708 N. 9 (OPINION OF GOLDBERG, J.). 

ON THE OTHER HAND, THE SIGNATORY OF A PURELY VOLUNTARY AGREEMENT
THAT VIOLATES SEC. 8(E) IS FULLY PROTECTED FROM ANY DAMAGE THAT MIGHT
RESULT FROM THE ILLEGAL "HOT CARGO" AGREEMENT BY HIS ABILITY SIMPLY TO
IGNORE THE CONTRACT PROVISION THAT VIOLATES SEC. 8(E).  IF THE UNION
SHOULD ATTEMPT TO ENFORCE THE ILLICIT "HOT CARGO" CLAUSE THROUGH ANY
FORM OF COERCION, THE EMPLOYER MAY THEN BRING A SEC. 303 DAMAGES SUIT
OR MAY FILE AN UNFAIR LABOR PRACTICE WITH THE BOARD.  SEE 29 U.S.C.
SEC. 158(B)(4)(B).  SINCE SEC. 8(E) PROVIDES THAT ANY PROHIBITED
AGREEMENT IS "UNENFORCIBLE AND VOID," ANY UNION EFFORT TO INVOKE LEGAL
PROCESSES TO COMPEL THE NEUTRAL EMPLOYER TO COMPLY WITH HIS PURELY
VOLUNTARY AGREEMENT WOULD OBVIOUSLY BE UNAVAILING. 

/10/ THE LEGISLATIVE PROCEEDINGS LEADING TO THE PASSAGE OF THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (THE LANDRUM-GRIFFIN
ACT), 73 STAT. 519, BEGAN IN JANUARY 1959 WHEN SENATOR JOHN KENNEDY
INTRODUCED S. 1555, INCORPORATING 46 AMENDMENTS TO S. 505 MADE BY THE
COMMITTEE ON LABOR AND PUBLIC WELFARE.  S. 1555, WITH VARIOUS
ADDITIONAL AMENDMENTS, WAS APPROVED BY THE SENATE ON APRIL 25, 1959,
AND SENT TO THE HOUSE, WHERE IT WAS REFERRED TO THE COMMITTEE ON
EDUCATION AND LABOR.  ON JULY 30, 1959, THE HOUSE COMMITTEE FAVORABLY
REPORTED H.R. 8342, 86TH CONG., 1ST SESS.  ONE WEEK EARLIER H.R. 8400
AND H.R. 8401, IDENTICAL BILLS, WERE INTRODUCED IN THE HOUSE OF
REPRESENTATIVES LANDRUM AND GRIFFIN, RESPECTIVELY.  THE HOUSE VOTED ON
AUGUST 13, 1959, TO SUBSTITUTE THE TEXT OF H.R. 8400 FOR THE TEXT OF
THE HOUSE COMMITTEE BILL, AND THE LANDRUM-GRIFFIN BILL WAS THEN
INSERTED BY THE HOUSE IN S. 1555 IN LIEU OF ITS PROVISIONS.  THE
CONFERENCE MADE SEVERAL SUBSTANTIVE CHANGES IN THE LANDRUM-GRIFFIN
BILL, WHICH WAS THEN PASSED BY BOTH THE HOUSE AND SENATE AND APPROVED
BY THE PRESIDENT.  SEE GENERALLY 1 LEG.  HIST.  OF LMRDA VII - XI. 

/11/ REPRESENTATIVE HIESTAND, DURING HOUSE DEBATE ON THE REPORT OF
THE CONFERENCE COMMITTEE, RECOMMENDED ADOPTION OF THE BILL AS AMENDED
BY THE CONFERENCE AND COMPLIMENTED REPRESENTATIVES LANDRUM AND GRIFFIN
FOR THEIR EFFORTS IN GUIDING THE BILL THROUGH CONGRESS.  BUT IN
EXPRESSING CONCERN OVER THE FACT THAT THE LEGISLATION DID NOT RESTORE
ANTITRUST SANCTIONS FOR UNION SECONDARY ACTIVITY AND OTHER
ANTICOMPETITIVE RESTRAINTS OF TRADE, HE WARNED:  "(WE SHOULD ACT TODAY
WITH FULL KNOWLEDGE THAT PASSAGE OF THE LANDRUM-GRIFFIN BILL WILL NOT
SOLVE EVERY PROBLEM.  THEHEART OF THE PROBLEM, THE VERY HEART, IS THE
SHEER POWER IN THE HANDS OF LABOR UNION LEADERS DUE TO THEIR ABOVE-THE
LAW STATUS WITH RESPECT TO OUR ANTIMONOPOLY LAWS."  105 CONG. REC.
18132; 2 LEG.  HIST.  OF LMRDA 1719. 

/12/ SECTION 2(B)(2) OF SENATOR MC CLELLAN'S BILL, S. 2573, 87TH
CONG., 1ST SESS., PROVIDED THAT THE SHERMAN ACT BE AMENDED TO READ IN
PART: 

" NOTWITHSTANDING ANY OTHER PROVISIONOF LAW, EVERY CONTRACT,
AGREEMENT, OR UNDERSTANDING, EXPRESS OR IMPLIED, BETWEEN ANY LABOR
ORGANIZATION AND ANY EMPLOYER ENGAGED IN THE TRANSPORTATION OF PERSONS
OR PROPERTY, WHEREBY SUCH EMPLOYER UNDERTAKES TO CEASE, OR TO REFRAIN
FROM, PURCHASING, USING, SELLING, HANDLING, TRANSPORTING, OR OTHERWISE
DEALING IN ANY OF THE PRODUCTSOR SERVICES OF ANY PRODUCER, PROCESSOR,
DISTRIBUTOR, SUPPLIER, HANDLER, OR MANUFACTURER WHICH ARE DISTRIBUTED
IN TRADE OR COMMERCE IN ANY TERRITORY OF THE UNITED STATES OR THE
DISTRICT OF COLUMBIA, OR BETWEEN ANY SUCH TERRITORY AND ANOTHER, OR
BETWEEN ANY SUCH TERRITORY OR TERRITORIES AND ANY STATE OR STATES OR
THE DISTRICT OF COLUMBIA OR WITH FOREIGN NATIONS, OR BETWEEN THE
DISTRICT OF COLUMBIA AND ANY STATE OR STATES OR FOREIGN NATIONS, OR TO
CEASE DOING BUSINESS WITH ANY OTHER PERSON SHALL BE UNLAWFUL." 

/13/ I FULLY AGREE WITH THE COURT'S CONCLUSION, ANTE, AT 635 - 637,
THAT FEDERAL LABOR LAW PRE-EMPTS THE STATE LAW THAT CONNELL SOUGHT TO
APPLY TO LOCAL 100'S SECONDARY ACTIVITYIN THIS CASE. 

JOSEPH F. CANTERBURY, JR., ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

DAVID R. RICHARDS ARGUED THE CAUSEAND FILED A BRIEF FOR RESPONDENT. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY GERARD C.
SMETANA, LAWRENCE D. EHRLICH, JERRY KRONENBERG, AND MILTON SMITH FOR
THE CHAMBER OF COMMERCE OF THE UNITED STATES; BY VINCENT J. APRUZZESE,
FRANCIS A. MASTRO, AND WILLIAM L. KELLER FOR ASSOCIATED GENERAL
CONTRACTORS OF AMERICA ET AL.; AND KENNETH C. MC GUINNESS AND ROBERT E.
WILLIAMS FOR AIR-CONDITIONING AND REFRIGERATION INSTITUTE ET AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY SOLICITOR
GENERAL BORK, PETER G. NASH, JOHN S. IRVING, PATRICK HARDIN, NORTON J.
COME, AND LINDA SHER FOR THE NATIONAL LABOR RELATIONS BOARD, AND BY J.
ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN
FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS. 
..END :





EASTLAND V. UNITED STATES SERVICE-MEN'S FUND, 421 U.S. 491 


       EASTLAND ET AL. V. UNITED STATES SERVICEMEN'S FUND ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

      NO. 73 - 1923.  ARGUED JANUARY 22, 1975--DECIDED

     MAY 27, 1975; 159 U.S.APP.  D.C. 352, 488 F.2D 1252,

        REVERSED AND REMANDED. 


    THE SENATE SUBCOMMITTEE ON INTERNAL SECURITY, PURSUANT TO ITS

  AUTHORITY UNDER A SENATE RESOLUTION TO MAKE A COMPLETE STUDY OF

  THE ADMINISTRATION, OPERATION, AND ENFORCEMENT OF THE INTERNAL

  SECURITY ACT OF 1950, BEGAN AN INQUIRY INTO THE VARIOUS

  ACTIVITIES OF RESPONDENT ORGANIZATION, TO DETERMINE WHETHER THEY

  WERE POTENTIALLY HARMFUL TO THE MORALE OF UNITED STATES ARMED

  FORCES.  IN CONNECTION WITH SUCH INQUIRY IT ISSUED A SUBPOENA

  DUCES TECUM TO THE BANK WHERE THE ORGANIZATION HAS AN ACCOUNT,

  ORDERING THE BANK TO PRODUCE ALL RECORDS INVOLVING THE ACCOUNT. 

 THE ORGANIZATION AND TWO OF ITS MEMBERS THEN BROUGHT AN ACTION

  AGAINST THE CHAIRMAN, SENATOR MEMBERS, CHIEF COUNSEL OF THE

  SUBCOMMITTEE, AND THE BANK TO ENJOIN IMPLEMENTATION OF THE

  SUBPOENA ON FIRST AMENDMENT GROUNDS.  THE DISTRICT COURT

  DISMISSED THE ACTION.  THE COURT OF APPEALS REVERSED, HOLDING

  THAT, ALTHOUGH COURTS SHOULD HESITATE TO INTERFERE WITH

  CONGRESSIONAL ACTIONS EVEN WHERE FIRST AMENDMENT RIGHTS ARE

  IMPLICATED, SUCH RESTRAINT SHOULD NOT PRECLUDE JUDICIAL REVIEW

  WHERE NO ALTERNATIVE AVENUE OF RELIEF IS AVAILABLE, AND THAT IF

  THE SUBPOENA WAS OBEYED RESPONDENTS' FIRST AMENDMENT RIGHTS WOULD

  BE VIOLATED.  HELD:  ONCE IT IS DETERMINED THAT THE ACTIVITIES OF

THE SENATE SUBCOMMITTEE, THE INDIVIDUAL SENATORS, AND THE CHIEF

  COUNSEL FALL WITHIN THE "LEGITIMATE LEGISLATIVE SPHERE," THOSE

  ACTIVITIES ARE PROTECTED BY THE ABSOLUTE PROHIBITION OF THE

  SPEECH OR DEBATE CLAUSE OF THE CONSTITUTION AGAINST BEING

  "QUESTIONED IN ANY OTHER PLACE" AND HENCE ARE IMMUNE FROM

  JUDICIAL INTERFERENCE.  PP. 501 - 511. 

     (A) THE APPLICABILITY OF THE CLAUSE TO PRIVATE CIVIL ACTIONS
IS

  SUPPORTED BY THE ABSOLUTENESS OF THE TERMS "SHALL NOT BE

  QUESTIONED" AND THE SWEEP OF THE TERMS "IN ANY OTHER PLACE."  P.

  503. 

     (B) ISSUANCE OF SUBPOENAS SUCH AS THE ONE IN QUESTION IS A

  LEGITIMATE USE BY CONGRESS OF ITS POWER TO INVESTIGATE, AND THE

  SUBPOENA POWER MAY BE EXERCISED BY A COMMITTEE ACTING, AS HERE,

ON BEHALF OF ONE OF THE HOUSES.  PP. 503 - 505. 

     (C) INQUIRY INTO THE SOURCES OF THE FUNDS USED TO CARRY ON

ACTIVITIES SUSPECTED BY A SUBCOMMITTEE OF CONGRESS TO HAVE A

  POTENTIAL FOR UNDERMINING THE MORALE OF THE ARMED FORCES IS

  WITHIN THE LEGITIMATE LEGISLATIVE SPHERE.  PP. 505 - 507. 

     (D) THERE IS NO DISTINCTION BETWEEN THE SUBCOMMITTEE'S MEMBERS

  AND ITS CHIEF COUNSEL INSOFAR AS COMPLETE IMMUNITY FOR THE

  SUBPOENA UNDER THE SPEECH OR DEBATE CLAUSE IS CONCERNED, AND

  SINCE THE MEMBERS ARE IMMUNE BECAUSE THE ISSUANCE OF THE SUBPOENA

  IS "ESSENTIAL TO LEGISLATING," THEIR AIDES SHARE THAT IMMUNITY. 

  P. 507. 

  (E) THE SUBPOENA CANNOT BE HELD SUBJECT TO JUDICIAL QUESTIONING

  ON THE ALLEGED GROUND THAT IT WORKS AN INVASION OF RESPONDENTS'

  PRIVACY, SINCE IT IS "ESSENTIAL TO LEGISLATING."  P. 508. 

     (F) NOR CAN THE SUBPOENA BE HELD OUTSIDE THE PROTECTION OF

  SPEECH OR DEBATE IMMUNITY ON THE ALLEGED GROUND THAT THE MOTIVE

  OF THE INVESTIGATION WAS IMPROPER, SINCE IN DETERMINING THE

  LEGITIMACY OF A CONGRESSIONAL ACTION THE MOTIVES ALLEGED TO HAVE

  PROMPTED IT ARE NOT TO BE CONSIDERED.  PP. 508 - 509. 

     (G) IN VIEW OF THE ABSOLUTE TERMS OF THE SPEECH OR DEBATE

  PROTECTION, A MERE ALLEGATION THAT FIRST AMENDMENT RIGHTS MAY BE

INFRINGED BY THE SUBPOENA DOES NOT WARRANT JUDICIAL

  INTERFERENCE.  PP. 509 - 511. 

     BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  MARSHALL,

  J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH BRENNAN

  AND STEWART, JJ., JOINED, POST, P. 513.  DOUGLAS, J., FILED A

DISSENTING OPINION, POST, P. 518. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO DECIDE WHETHER A FEDERAL COURT MAY ENJOIN
THE ISSUANCE BY CONGRESS OF A SUBPOENA DUCES TECUM THAT DIRECTS A BANK
TO PRODUCE THE BANK RECORDS OF AN ORGANIZATION WHICH CLAIMS A FIRST
AMENDMENT PRIVILEGE STATUS FOR THOSE RECORDS ON THE GROUND THAT THEY
ARE THE EQUIVALENT OF CONFIDENTIAL MEMBERSHIP LISTS.  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT HELD THAT COMPLIANCE WITH
THE SUBPOENA "WOULD INVADE THE CONSTITUTIONAL RIGHTS"  OF THE
ORGANIZATION, AND THAT JUDICIAL RELIEF IS AVAILABLE TO PREVENT
IMPLEMENTATION OF THE SUBPOENA. 

        I 

IN EARLY 1970 THE SENATE SUBCOMMITTEE ON INTERNAL SECURITY WAS GIVEN
BROAD AUTHORITY BY THE SENATE TO "MAKE A COMPLETE AND CONTINUING STUDY
AND INVESTIGATION OF . . . THE ADMINISTRATION, OPERATION, AND
ENFORCEMENT OF THE INTERNAL SECURITY ACT OF 1950 . . . ."  S. RES. 341,
91ST CONG., 2D SESS., 116 CONG. REC. 3418 (FEB. 16, 1970).  THE
AUTHORITY ENCOMPASSED DISCOVERING THE "EXTENT, NATURE, AND EFFECT OF
SUBVERSIVE ACTIVITIES IN THE UNITED STATES," AND THE RESOLUTION
SPECIFICALLY DIRECTED INQUIRY CONCERNING "INFILTRATION BY PERSONS WHO
ARE OR MAY BE UNDER THE DOMINATION OF . . . FOREIGN GOVERNMENT . . ." 
IBID.  SEE ALSO S.RES.  366, 81ST CONG.,2D SESS. (1950).  PURSUANT TO
THAT MANDATE THE SUBCOMMITTEE BEGAN AN INQUIRY INTO THE ACTIVITIES OF
RESPONDENT UNITED STATES SERVICEMEN'S FUND, INC. (USSF). 

USSF DESCRIBES ITSELF AS A NONPROFIT MEMBERSHIP CORPORATION
SUPPORTED BY CONTRIBUTIONS.  /1/ ITS STATED PURPOSE IS "TO FURTHER THE
WELFARE OF PERSONS WHO HAVE SERVED OR ARE PRESENTLY SERVING IN THE
MILITARY."  TO ACCOMPLISH ITS DECLARED PURPOSE USSF HAS ENGAGED IN
VARIOUS ACTIVITIES /2/ DIRECTED AT UNITED STATES SERVICEMEN.  IT
ESTABLISHED "COFFEEHOUSES" NEAR DOMESTIC MILITARY INSTALLATIONS, AND
AIDED THE PUBLICATION OF "UNDERGROUND" NEWSPAPERS FOR DISTRIBUTION ON
AMERICAN MILITARY INSTALLATIONS THROUGHOUT THE WORLD.  THE COFFEEHOUSES
WERE MEETING PLACES FOR SERVICEMEN, AND THE NEWSPAPERS WERE SPECIALIZED
PUBLICATIONS WHICH USSF CLAIMS DEALT WITH ISSUES OF CONCERN TO
SERVICEMEN.  THROUGH THESE OPERATIONS USSF ATTEMPTED TO COMMUNICATE TO
SERVICEMEN ITS PHILOSOPHY AND ATTITUDES CONCERNING UNITED STATES
INVOLVEMENT IN SOUTHEAST ASIA.  USSF CLAIMS THE COFFEEHOUSES AND
NEWSPAPERS BECAME "THE FOCUS OF DISSENT AND EXPRESSIONS OF OPPOSITION
WITHIN THE MILITARY TOWARD THE WAR IN (SOUTHEAST ASIS)."  /3/ 

IN THE COURSE OF ITS INVESTIGATION OF USSF, THE SUBCOMMITTEE
CONCLUDED THAT A PRIMA FACIE SHOWING HAD BEEN MADE OF THE NEED FOR
FURTHER INVESTIGATION, AND IT RESOLVED THAT APPROPRIATE SUBPOENAS,
INCLUDING SUBPOENAS DUCES TECUM COULD BE ISSUED.  PETITIONER EASTLAND,
A UNITED STATES SENATOR, IS, AS HE WAS THEN, CHAIRMAN OF THE
SUBCOMMITTEE.  ON MAY 28, 1970, PURSUANT TO THE ABOVE AUTHORITY, HE
SIGNED A SUBPOENA DUCES TECUM, ISSUED ON BEHALF OF THE SUBCOMMITTEE, TO
THE BANK WHERE USSF HAS AN ACCOUNT.  THE SUBPOENA COMMANDED THE BANK TO
PRODUCE BY JUNE 4, 1970: 

"ANY AND ALL RECORDS APPERTAINING TO OR INVOLVING THE ACCOUNT OR
ACCOUNTS OF (USSF).  SUCH RECORDS TO COMPREHEND PAPERS, CORRESPONDENCE,
STATEMENTS, CHECKS, DEPOSIT SLIPS AND SUPPORTING DOCUMENTATION, OR
MICROFILM THEREOF WITHIN (THE BANK'S) CONTROL OR CUSTODY OR WITHIN
(ITS) MEANS TO PRODUCE."  FROM THE RECORD IT APPEARS THE SUBPOENA WAS
NEVER ACTUALLY SERVED ON THE BANK.  /4/ IN ANY EVENT, BEFORE THE RETURN
DATE, USSF AND TWO OF ITS MEMBERS BROUGHT THIS ACTION TO ENJOIN
IMPLEMENTATION OF THE SUBPOENA DUCES TECUM. 

THE COMPLAINT NAMED AS DEFENDANTS CHAIRMAN EASTLAND, NINE OTHER
SENATORS, THE CHIEF COUNSEL TO THE SUBCOMMITTEE, AND THE BANK.  /5/ THE
COMPLAINT CHARGED THAT THE AUTHORIZING RESOLUTIONS AND THE
SUBCOMMITTEE'S ACTION IMPLEMENTING THEM WERE AN UNCONSTITUTIONAL ABUSE
OF THE LEGISLATIVE POWER OF INQUIRY, THAT THE "SOLE PURPOSE" OF THE
SUBCOMMITTEE INVESTIGATION WAS TO FORCE "PUBLIC DISCLOSURE OF BELIEFS,
OPINIONS, EXPRESSIONS AND ASSOCIATIONS OF PRIVATE CITIZENS WHICH MAY BE
UNORTHODOX OR UNPOPULAR," AND THAT THE "SOLE PURPOSE" OF THE SUBPOENA
WAS TO "HARASS, CHILL, PUNISH AND DETER (USSF AND ITS MEMBERS) IN THEIR
EXERCISE OF THEIR RIGHTS AND DUTIES UNDER THE FIRST AMENDMENT AND
PARTICULARLY TO STIFLE THE FREEDOM OF THE PRESS AND ASSOCIATION
GUARANTEED BY THAT AMENDMENT."  /6/ THE SUBPOENA WAS ISSUED TO THE BANK
RATHER THAN TO USSF AND ITS MEMBERS, THE COMPLAINT CLAIMED, "IN ORDER
TO DEPRIVE (THEM) OF THEIR RIGHTS TO PROTECT THEIR PRIVATE RECORDS,
SUCH AS THE SOURCES OF THEIR CONTRIBUTIONS, AS THEY WOULD BE ENTITLED
TO DO IF THE SUBPOENAS HAD BEEN ISSUED AGAINST THEM DIRECTLY."  THE
COMPLAINT FURTHER CLAIMED THAT FINANCIAL SUPPORT TO USSF IS OBTAINED
EXCLUSIVELY THROUGH CONTRIBUTIONS FROM PRIVATE INDIVIDUALS, AND IF THE
BANK RECORDS ARE DISCLOSED "MUCH OF THAT FINANCIAL SUPPORT WILL BE
WITHDRAWN AND USSF WILL BE UNABLE TO CONTINUE ITS CONSTITUTIONALLY
PROTECTED ACTIVITIES."  /7/ 

FOR RELIEF USSF AND ITS MEMBERS, THE RESPONDENTS, SOUGHT A PERMANENT
INJUCTION RESTRAINING THE MEMBERS OF THE SUBCOMMITTEE AND ITS CHIEF
COUNSEL FROM TRYING TO ENFORCE THE SUBPOENA BY CONTEMPT OF CONGRESS OR
OTHER MEANS AND RESTRAINING THE BANK FROM COMPLYING WITH THE SUBPOENA. 
/8/ RESPONDENTS ALSO SOUGHT A DECLARATORY JUDGMENT DECLARING THE
SUBPOENA AND THE SENATE RESOLUTIONS VOID UNDER THE CONSTITUTION.  NO
DAMAGES CLAIM WAS MADE. 

SINCE THE RETURN DATE ON THE SUBPOENA WAS JUNE 4, 1970, THREE DAYS
AFTER THE ACTION WAS BEGUN, ENFORCEMENT OF THE SUBPOENA WAS STAYED /9/
IN ORDER TO AVOID MOOTNESS AND TO PREVENT POSSIBLE IRREPARABLE INJURY. 
THE DISTRICT COURT THEN HELD HEARINGS AND TOOK TESTIMONY ON THE
MATTER.  THAT COURT ULTIMATELY HELD /10/ THAT RESPONDENTS HAD NOT MADE
A SUFFICIENT SHOWING OF IRREPARABLE INJURY TO WARRANT AN INJUNCTION. 
THE COURT ALSO PURPORTED TO STRIKE A BALANCE BETWEEN THE LEGISLATIVE
INTEREST AND RESPONDENTS' ASSERTED FIRST AMENDMENT RIGHTS, NAACP V.
ALABAMA, 357 U.S. 449 (1958).  IT CONCLUDED THAT A VALID LEGISLATIVE
PURPOSE EXISTED FOR THE INQUIRY BECAUSE CONGRESS WAS PURSUING ITS
FUNCTIONS, UNDER ART. 2, SEC. 8, OF RAISING AND SUPPORTING AN ARMY, AND
HAD A LEGITIMATE INTEREST IN "SCRUTINIZING) CLOSELY POSSIBLE
INFILTRATION OF SUBVERSIVE ELEMENTS INTO AN ORGANIZATION WHICH DIRECTLY
AFFECTS THE ARMED FORCES OF THIS COUNTRY."  /11/ RELYING ON BARENBLATT
V. UNITED STATES, 360 U.S. 109 (1959), THE DISTRICT COURT CONCLUDED
THAT THE LEGISLATIVE INTEREST MUST PREVAIL OVER RESPONDENTS' ASSERTED
RIGHTS, AND DENIED RESPONDENTS' MOTIONS FOR PRELIMINARY AND PERMANENT
INJUNCTIONS.  IT ALSO DISMISSED AS TO THE PETITIONER SENATORS AFTER
CONCLUDING THAT THE SPEECH OR DEBATE CLAUSE IMMUNIZES THEM FROM SUIT. 
DOMBROWSKI V. EASTLAND, 387 U.S. 82 (1967). 

THE COURT OF APPEALS REVERSED, HOLDING FIRST THAT, ALTHOUGH COURTS
SHOULD HESITATE TO INTERFERE WITH CONGRESSIONAL ACTIONS EVEN WHERE
FIRST AMENDMENT RIGHTS CLEARLY ARE IMPLICATED, SUCH RESTRAINT COULD NOT
PRECLUDE JUDICIAL REVIEW WHERE NO ALTERNATIVE AVENUE OF RELIEF IS
AVAILABLE OTHER THAN "THROUGH THE EQUITABLE POWERS OF THE COURT."  159
U.S.APP.  D.C. 352, 359, 488 F.2D 1252, 1259 (1973).  HERE THE SUBPOENA
WAS DIRECTED TO A THIRD PARTY WHICH COULD NOT BE EXPECTED TO REFUSE
COMPLIANCE; UNLESS RESPONDENTS COULD OBTAIN JUDICIAL RELIEF THE BANK
MIGHT COMPLY, THE CASE WOULD BECOME MOOT, AND THE ASSERTED VIOLATION OF
RESPONDENTS' CONSTITUTIONAL RIGHTS WOULD BE IRREPARABLE.  BECAUSE THE
SUBPOENA WAS NOT DIRECTED TO RESPONDENTS, THE COURT OF APPEALS NOTED,
THE TRADITIONAL ROUTE FOR RAISING THEIR DEFENSES BY REFUSING COMPLIANCE
AND TESTING THE LEGAL ISSUES IN A CONTEMPT PROCEEDING WAS NOT AVAILABLE
TO THEM.  ANSARA V. EASTLAND, 143 U.S.APP.  D.C. 29, 442 F.2D 751
(1971). 

SECOND, THE COURT OF APPEALS CONCLUDED THAT IF THE SUBPOENA WERE
OBEYED RESPONDENTS' FIRST AMENDMENT RIGHTS WOULD BE VIOLATED.  THE
COURT SAID: 

     " THE RIGHT OF VOLUNTARY ASSOCIATIONS, ESPECIALLY THOSE
ENGAGED

IN ACTIVITIES WHICH MAY NOT MEET WITH POPULAR FAVOR, TO BE FREE

  FROM HAVING EITHER STATE OR FEDERAL OFFICIALS EXPOSE THEIR

  AFFILIATION AND MEMBERSHIP ABSENT A COMPELLING STATE OR FEDERAL

  PURPOSE HAS BEEN MADE CLEAR A NUMBER OF TIMES.  SEE NAACP V.

  ALABAMA, 357 U.S. 449; BATES V. LITTLE ROCK, 361 U.S. 516;

  LOUISIANA EX REL. GREMILLION V. NAACP, 366 U.S. 293 (1961);

  GIBSON V. FLORIDA LEGISLATIVE COMMITTEE, 372 U.S. 539 (1962);

  POLLARD V. ROBERTS, 393 U.S. 14 (1968), AFFIRMING THE JUDGMENT OF

  THE THREE-JUDGE DISTRICT COURT FOR THE EASTERN DISTRICT OF

  ARKANSAS, 283 F.SUPP.  248 (1968)."  159 U.S.APP.  D.C., AT 364,
488

F.2D, AT 1264. 

IN THIS CASE THAT RIGHT WOULD BE VIOLATED, THE COURT OF APPEALS HELD,
BECAUSE DISCOVERY OF THE IDENTITIES OF DONORS WAS THE ADMITTED GOAL OF
THE SUBPOENA, ID., AT 367, 488 F.2D, AT 1267, AND THAT INFORMATION
COULD BE GAINED AS EASILY FROM BANK RECORDS AS FROM MEMBERSHIP LISTS. 
MOREOVER, IF DONORS' IDENTITIES WERE REVEALED, OR IF DONORS REASONABLY
FEARED THAT RESULT, USSF'S CONTRIBUTIONS WOULD DECREASE SUBSTANTIALLY,
AS HAD ALREADY OCCURRED MERELY BECAUSE OF THE THREAT POSED BY THE
SUBPOENA.  /12/ 

THE COURT OF APPEALS THEN FASHIONED A REMEDY TO DEAL WITH THE
SUPPOSED VIOLATION OF RIGHTS.  IT ORDERED THE DISTRICT COURT TO
"CONSIDER THE EXTENT TO WHICH COMMITTEE COUNSEL SHOULD PROPERLY BE
REQUIRED TO GIVE EVIDENCE AS TO MATTERS WITHOUT THE 'LEGISLATIVE
SPHERE.'"  ID., AT 370, 488 F.2D, AT 1270.  /13/ IT ALSO ORDERED THAT
THE COURT SHOULD "BE LIBERAL IN GRANTING THE RIGHT OF AMENDMENT" TO
RESPONDENTS TO ADD OTHER PARTIES IF THEREBY "THE CASE CAN BETTER
PROCEED TO A DECISION ON THE VALIDITY OF THE SUBPOENA."  IBID.  MEMBERS
OF CONGRESS COULD BE ADDED AS PARTIES, THE COURT OF APPEALS SAID, IF
THEIR PRESENCE IS "UNAVOIDABLE IF A VALID ORDER IS TO BE ENTERED BY THE
COURT TO VINDICATE RIGHTS WHICH WOULD OTHERWISE GO UNREDRESSED." 
IBID.  THE COURT OF APPEALS CONCLUDED THAT DECLARATORY RELIEF AGAINST
MEMBERS IS "PREFERABLE" TO "ANY COERCIVE ORDER."  IBID.  THE CLEAR
IMPLICATION IS THAT THE DISTRICT COURT WAS AUTHORIZED TO ENTER A
"COERCIVE ORDER" WHICH IN CONTEXT COULD MEAN THAT THE SUBCOMMITTEE
COULD BE PREVENTED FROM PURSUING ITS INQUIRY BY USE OF A SUBPOENA TO
THE BANK. 

ONE JUDGE DISSENTED ON THE GROUND THAT THE MEMBERSHIP-LIST CASES
WERE DISTINGUISHABLE BECAUSE IN NONE OF THEM WAS THERE A "SHOWING THAT
THE LISTS WERE REQUESTED FOR A PROPER PURPOSE."  ID., AT 377, 488 F.2D,
AT 1277.  HERE, ON THE OTHER HAND, THE DISSENTING JUDGE CONCLUDED,
"THERE IS A DEMONSTRABLE RELATIONSHIP BETWEEN THE INFORMATION SOUGHT
AND THE VALID LEGISLATIVE INTEREST OF THE FEDERAL CONGRESS" IN
DISCOVERING WHETHER ANY MONEY FOR USSF ACTIVITIES "CAME FROM FOREIGN
SOURCES OR SUBVERSIVE ORGANIZATIONS," ID., AT 377, 378, 488 F.2D, AT
1277, 1278; WHETHER USSF ACTIVITIES MAY HAVE CONSTITUTED VIOLATIONS OF
18 U.S.C. SEC. 2387 (A), WHICH PROHIBITS INTERFERENCE WITH THE LOYALTY,
DISCIPLINE, OR MORALE OF THE ARMED SERVICES; OR WHETHER THE ANONYMITY
OF USSF DONORS MIGHT HAVE DISGUISED PERSONS WHO HAD NOT COMPLIED WITH
THE FOREIGN AGENTS REGISTRATION ACT OF 1938, 22 U.S.C. SEC. 611 ET SEQ.
FINALLY, HE NOTED THAT THE PRIME PURPOSE OF THE SUBCOMMITTEE'S INQUIRY
WAS TO INVESTIGATE APPLICATION OF THE INTERNAL SECURITY ACT OF 1950,50
U.S.C. SEC. 781 ET SEQ., AND THAT, TOO, PROVIDED A LEGITIMATE
CONGRESSIONAL INTEREST. 

THE DISSENTING JUDGE THEN BALANCED THE CONGRESSIONAL INTERESTS
AGAINST PRIVATE RIGHTS, BARENBLATT V. UNITED STATES, SUPRA; WATKINS V.
UNITED STATES, 354 U.S. 178, 198 (1957), AND STRUCK THE BALANCE IN
FAVOR OF THE INVESTIGATIVE ROLE OF CONGRESS.  HE REASONED THAT THERE IS
NO RIGHT TO SECRECY WHICH CAN FRUSTRATE A LEGITIMATE CONGRESSIONAL
INQUIRY INTO AN AREA WHERE LEGISLATION MAY BE HAD.  159 U.S.APP.  D.C.,
AT 378 - 379, 382, 488 F.2D, AT 1278 - 1279, 1282.  ABSENT A SHOWING
THAT THE INFORMATION SOUGHT COULD NOT BE USED IN THE LEGISLATIVE
SPHERE, HE CONCLUDED, JUDICIAL INTERFERENCE WAS UNWARRANTED. 

WE CONCLUDE THAT THE ACTIONS OF THE SENATE SUBCOMMITTEE, THE
INDIVIDUAL SENATORS, AND THE CHIEF COUNSEL ARE PROTECTED BY THE SPEECH
OR DEBATE CLAUSE OF THE CONSTITUTION, ART. I, SEC. 6, CL. 1, AND ARE
THEREFORE IMMUNE FROM JUDICIAL INTERFERENCE.  WE REVERSE. 

        II 

THE QUESTION /14/ TO BE RESOLVED IS WHETHER THE ACTIONS OF THE
PETITIONERS FALL WITHIN THE "SPHERE OF LEGITIMATE LEGISLATIVE
ACTIVITY."  IF THEY DO, THE PETITIONERS "SHALL NOT BE QUESTIONED IN ANY
OTHER PLACE" ABOUT THOSE ACTIVITIES SINCE THE PROHIBITIONS OF THE
SPEECH OR DEBATE CLAUSE ARE ABSOLUTE, DOE V MC MILLAN, 412 U.S. 306,
312 - 313 (1973); UNITED STATES V. BREWSTER, 408 U.S. 501, 516 (1972);
GRAVEL V. UNITED STATES, 408 U.S. 606, 623 N. 14 (1972); POWELL V. MC
CORMACK, 395 U.S. 486, 502 - 503 (1969); DOMBROWSKI V. EASTLAND, 387
U.S., AT 84 - 85; UNITED STATES V. JOHNSON, 383 U.S. 169, 184 - 185
(1966); BARR V. MATTEO, 360 U.S. 564, 569 (1959). 

WITHOUT EXCEPTION, OUR CASES HAVE READ THE SPEECH OR DEBATE CLAUSE
BROADLY TO EFFECTUATE ITS PURPOSES.  KILBOURN V. THOMPSON, 103 U.S.
168, 204 (1881); UNITED STATES V. JOHNSON, SUPRA, AT 179; POWELL V. MC
CORMACK, SUPRA, AT 502 - 503; UNITED STATES V. BREWSTER, SUPAR, AT 508
509; GRAVEL V. UNITED STATES, SUPRA, AT 617 - 618; CF. TENNEY V.
BRANDHOVE, 341 U.S. 367, 376 - 378 (1951).  THE PURPOSE OF THE CLAUSE
IS TO INSURE THAT THE LEGISLATIVE FUNCTION THE CONSTITUTION ALLOCATES
TO CONGRESS MAY BE PERFORMED INDEPENDENTLY. 

     " THE IMMUNITIES OF THE SPEECH OR DEBATE CLAUSE WERE NOT

  WRITTEN INTO THE CONSTITUTION SIMPLY FOR THE PERSONAL OR PRIVATE

 BENEFIT OF MEMBERS OF CONGRESS, BUT TO PROTECT THE INTEGRITY OF

  THE LEGISLATIVE PROCESS BY INSURING THE INDEPENDENCE OF

  INDIVIDUAL LEGISLATORS."  UNITED STATES V. BREWSTER, SUPRA, AT

  507. 

IN OUR SYSTEM "THE CLAUSE SERVES THE ADDITIONAL FUNCTION OF REINFORCING
THE SEPARATION OF POWERS SO DELIBERATELY ESTABLISHED BY THE FOUNDERS." 
UNITED STATES V. JOHNSON, SUPRA, AT 178. 

THE CLAUSE IS A PRODUCT OF THE ENGLISH EXPERIENCE.  KILBOURN V.
THOMPSON, SUPRA; UNITED STATES V. JOHNSON, SUPRA, AT 177 - 179.  DUE TO
THAT HERITAGE OUR CASES MAKE IT CLEAR THAT THE "CENTRAL ROLE" OF THE
CLAUSE IS TO "PREVENT INTIMIDATION OF LEGISLATORS BY THE EXECUTIVE AND
ACCOUNTABILITY BEFORE A POSSIBLY HOSTILE JUDICIARY, UNITED STATES V.
JOHNSON, 383 U.S. 169, 181 (1966)," GRAVEL V. UNITED STATES, SUPRA, AT
617.  THAT ROLE IS NOT THE SOLE FUNCTION OF THE CLAUSE, HOWEVER, AND
ENGLISH HISTORY DOES NOT TOTALLY DEFINE THE REACH OF THE CLAUSE. 
RATHER, IT "MUST BE INTERPRETED IN LIGHT OF THE AMERICAN EXPERIENCE,
AND IN THE CONTEXT OF THE AMERICAN CONSTITUTIONAL SCHEME OF GOVERNMENT
. . . ."  UNITED STATES V. BREWSTER, SUPRA, AT 508.  THUS WE HAVE LONG
HELD THAT, WHEN IT APPLIES, THE CLAUSE PROVIDES PROTECTION AGAINST
CIVIL AS WELL AS CRIMINAL ACTIONS, AND AGAINST ACTIONS BROUGHT BY
PRIVATE INDIVIDUALS AS WELL AS THOSE INITIATED BY THE EXECUTIVE
BRANCH.  KILBOURN V. THOMPSON, SUPRA; TENNEY V. BRANDHOVE, SUPRA; DOE
V. MC MILLAN, SUPRA; DOMBROWSKI V. EASTLAND, SUPRA. 

THE APPLICABILITY OF THE CLAUSE TO PRIVATE CIVIL ACTIONS IS
SUPPORTED BY THE ABSOLUTENESS OF THE TERMS "SHALL NOT BE QUESTIONED,"
AND THE SWEEP OF THE TERMS "IN ANY OTHER PLACE."  IN READING THE CLAUSE
BROADLY WE HAVE SAID THAT LEGISLATORS ACTING WITHIN THE SPHERE OF
LEGITIMATE LEGISLATIVE ACTIVITY "SHOULD BE PROTECTED NOT ONLY FROM THE
CONSEQUENCES OF LITIGATION'S RESULTS BUT ALSO FROM THE BURDEN OF
DEFENDING THEMSELVES."  DOMBROWSKI V. EASTLAND, SUPRA, AT 85.  JUST AS
A CRIMINAL PROSECUTION INFRINGES UPON THE INDEPENDENCE WHICH THE CLAUSE
IS DESIGNED TO PRESERVE, A PRIVATE CIVIL ACTION, WHETHER FOR AN
INJUNCTION OR DAMAGES, CREATES A DISTRACTION AND FORCES MEMBERS TO
DIVERT THEIR TIME, ENERGY, AND ATTENTION FROM THEIR LEGISLATIVE TASKS
TO DEFEND THE LITIGATION.  PRIVATE CIVIL ACTIONS ALSO MAY BE USED TO
DELAY AND DISRUPT THE LEGISLATIVE FUNCTION.  MOREOVER, WHETHER A
CRIMINAL ACTION IS INSTITUTED BY THE EXECUTIVE BRANCH, OR A CIVIL
ACTION IS BROUGHT BY PRIVATE PARTIES, JUDICIAL POWER IS STILL BROUGHT
TO BEAR ON MEMBERS OF CONGRESS AND LEGISLATIVE INDEPENDENCE IS
IMPERILED.  WE REAFFIRM THAT ONCE IT IS DETERMINED THAT MEMBERS ARE
ACTING WITHIN THE "LEGITIMATE LEGISLATIVE SPHERE" THE SPEECH OR DEBATE
CLAUSE IS AN ABSOLUTE BAR TO INTERFERENCE.  DOE V. MC MILLAN, 412 U.S.,
AT 314. 

        III 

IN DETERMINING WHETHER PARTICULAR ACTIVITIES OTHER THAN LITERAL
SPEECH OR DEBATE FALL WITHIN THE "LEGITIMATE LEGISLATIVE SPHERE" WE
LOOK TO SEE WHETHER THE ACTIVITIES TOOK PLACE "IN A SESSION OF THE
HOUSE BY ONE OF ITS MEMBERS IN RELATION TO THE BUSINESS BEFORE IT." 
KILBOURN V. THOMPSON, 103 U.S., AT 204.  MORE SPECIFICALLY, WE MUST
DETERMINE WHETHER THE ACTIVITIES ARE 

"AN INTEGRAL PART OF THE DELIBERATIVE AND COMMUNICATIVE PROCESSES BY
WHICH MEMBERS PARTICIPATE IN COMMITTEE AND HOUSE PROCEEDINGS WITH
RESPECT TO THE CONSIDERATION AND PASSAGE OR REJECTION OF PROPOSED
LEGISLATION OR WITH RESPECT TO OTHER MATTERS WHICH THE CONSTITUTION
PLACES WITHIN THE JURISDICTION OF EITHER HOUSE."  GRAVEL V. UNITED
STATES, 408 U.S., AT 625.  SEE DOE V. MC MILLAN, SUPRA, AT 313. 

THE POWER TO INVESTIGATE AND TO DO SO THROUGH COMPULSORY PROCESS
PLAINLY FALLS WITHIN THAT DEFINITION.  THIS COURT HAS OFTEN NOTED THAT
THE POWER TO INVESTIGATE IS INHERENT IN THE POWER TO MAKE LAWS BECAUSE
"(A) LEGISLATIVE BODY CANNOT LEGISLATE WISELY OR EFFECTIVELY IN THE
ABSENCE OF INFORMATION RESPECTING THE CONDITIONS WHICH THE LEGISLATION
IS INTENDED TO AFFECT OR CHANGE."  MC GRAIN V. DAUGHERTY, 273 U.S. 135,
175 (1927).  SEE ANDERSON V. DUNN, 6 WHEAT.  204 (1821); UNITED STATES
V. RUMELY, 345 U.S. 41, 46 (1953).  /15/ ISSUANCE OF SUBPOENAS SUCH AS
THE ONE IN QUESTION HERE HAS LONG BEEN HELD TO BE A LEGITIMATE USE BY
CONGRESS OF ITS POWER TO INVESTIGATE.  WATKINS V. UNITED STATES, 354
U.S., AT 188. 

"(WHERE THE LEGISLATIVE BODY DOES NOT ITSELF POSSESS THE REQUISITE
INFORMATION--WHICH NOT INFREQUENTLY IS TRUE--RECOURSE MUST BE HAD TO
OTHERS WHO DO POSSESS IT.  EXPERIENCE HAS TAUGHT THAT MERE REQUESTS FOR
SUCH INFORMATION OFTEN ARE UNAVAILING, AND ALSO THAT INFORMATION WHICH
IS VOLUNTEERED IS NOT ALWAYS ACCURATE OR COMPLETE; SO SOME MEANS OF
COMPULSION ARE ESSENTIAL TO OBTAIN WHAT IS NEEDED."  MC GRAIN V.
DAUGHERTY, SUPRA, AT 175.  IT ALSO HAS BEEN HELD THAT THE SUBPOENA
POWER MAY BE EXERCISED BY A COMMITTEE ACTING, AS HERE, ON BEHALF OF ONE
OF THE HOUSES.  ID., AT 158.  CF. TENNEY V. BRANDHOVE, 341 U.S., AT 377
- 378.  WITHOUT SUCH POWER THE SUBCOMMITTEE MAY NOT BE ABLE TO DO THE
TASK ASSIGNED TO IT BY CONGRESS.  TO CONCLUDE THAT THE POWER OF INQUIRY
IS OTHER THAN AN INTEGRAL PART OF THE LEGISLATIVE PROCESS WOULD BE A
MISERLY READING OF THE SPEECH OR DEBATE CLAUSE IN DEROGATION OF THE
"INTEGRITY OF THE LEGISLATIVE PROCESS."  UNITED STATES V. BREWSTER, 408
U.S., AT 524; AND UNITED STATES V. JOHNSON, 383 U.S., AT 172. 

WE HAVE ALREADY HELD THAT THE ACT "OF AUTHORIZING AN INVESTIGATION
PURSUANT TO WHICH . . . MATERIALS WERE GATHERED" IS AN INTEGRAL PART OF
THE LEGISLATIVE PROCESS.  DOE V. MC MILLAN, 412 U.S., AT 313.  THE
ISSUANCE OF A SUBPOENA PURSUANT TO AN AUTHORIZED INVESTIGATION IS
SIMILARLY AN INDISPENSABLE INGREDIENT OF LAWMAKING; WIHOUT IT OUR
RECOGNITION THAT THE ACT "OF AUTHORIZING" IS PROTECTED WOULD BE
MEANINGLESS.  TO HOLD THAT MEMBERS OF CONGRESS ARE PROTECTED FOR
AUTHORIZING AN INVESTIGATION, BUT NOT FOR ISSUING A SUBPOENA IN
EXERCISE OF THAT AUTHORIZATION, WOULD BE A CONTRADICTION DENIGRATING
THE POWER GRANTED TO CONGRESS IN ART. I AND WOULD INDIRECTLY IMPAIR THE
DELIBERATIONS OF CONGRESS.  GRAVEL, SUPRA, AT 625. 

THE PARTICULAR INVESTIGATION AT ISSUE HERE IS RELATED TO AND IN
FURTHERANCE OF A LEGITIMATE TASK OF CONGRESS.  WATKINS V. UNITED
STATES, 354 U.S., AT 187.  ON THIS RECORD THE PLEADINGS SHOW THAT THE
ACTIONS OF THE MEMBERS AND THE CHIEF COUNSEL FALL WITHIN THE "SPHERE OF
LEGITIMATE LEGISLATIVE ACTIVITY."  THE SUBCOMMITTEE WAS ACTING UNDER AN
UNAMBIGUOUS RESOLUTION FROM THE SENATE AUTHORIZING IT TO MAKE A
COMPLETE STUDY OF THE "ADMINISTRATION, OPERATION, AND ENFORCEMENT OF
THE INTERNAL SECURITY ACT OF 1950 . . . ."  S.RES.  341, 91ST CONG., 2D
SESS., 116 CONG. REC. 3418 (FEB. 16, 1970).  THAT GRANT OF AUTHORITY IS
SUFFICIENT TO SHOW THAT THE INVESTIGATION UPON WHICH THE SUBCOMMITTEE
HAD EMBARKED CONCERNED A SUBJECT ON WHICH "LEGISLATION COULD BE HAD." 
MC GRAIN V. DAUGHERTY, 273 U.S., AT 177; SEE COMMUNIST PARTY V. CONTROL
BOARD, 367 U.S. 1 (1961). 

THE PROPRIETY OF MAKING USSF A SUBJECT OF THE INVESTIGATION AND
SUBPOENA IS A SUBJECT ON WHICH THE SCOPE OF OUR INQUIRY IS NARROW. 
HUTCHESON V. UNITED STATES, 369 U.S. 599, 618 - 619 (1962).  SEE
SINCLAIR V. UNITED STATES, 279 U.S. 263, 294 - 295 (1929).  " THECOURTS
SHOULD NOT GO BEYOND THE NARROW CONFINES OF DETERMINING THAT A
COMMITTEE'S INQUIRY MAY FAIRLY BE DEEMED WITHIN ITS PROVINCE."  TENNEY
V. BRANDHOVE, SUPRA, AT 378.  CF. DOE V. MC MILLAN, 412 U.S., AT 316 N.
10.  EVEN THE MOST CURSORY LOOK AT THE FACTS PRESENTED BY THE PLEADINGS
REVEALS THE LEGITIMACY OF THE USSF SUBPOENA.  INQUIRY INTO THE SOURCES
OF FUNDS USED TO CARRY ON ACTIVITIES SUSPECTED BY A SUBCOMMITTEE OF
CONGRESS TO HAVE A POTENTIAL FOR UNDERMINING THE MORALE OF THE ARMED
FORCES IS WITHIN THE LEGITIMATE LEGISLATIVE SPHERE.  INDEED, THE
COMPLAINT HERE TELLS US THAT USSF OPERATED ON OR NEAR MILITARY AND
NAVAL BASES, AND THAT ITS FACILITIES BECAME THE "FOCUS OF DISSENT" TO
DECLARED NATIONAL POLICY.  WHETHER USSF ACTIVITIES VIOLATED ANY STATUTE
IS NOT RELEVANT; THE INQUIRY WAS INTENDED TO INFORM CONGRESS IN AN AREA
WHERE LEGISLATION MAY BE HAD.  USSF ASSERTED IT DOES NOT KNOW THE
SOURCES OF ITS FUNDS; IN LIGHT OF THE SENATE AUTHORIZATION TO THE
SUBCOMMITTEE TO INVESTIGATE "INFILTRATION BY PERSONS WHO ARE OR MAY BE
UNDER THE DOMINATION OF . . . FOREIGN GOVERNMENT," SUPRA, AT 493, AND
IN VIEW OF THE PLEADED FACTS, IT IS CLEAR THAT THE SUBPOENA TO DISCOVER
USSF'S BANK RECORDS "MAY FAIRLY BE DEEMED WITHIN (THE SUBCOMMITTEE'S)
PROVINCE."  TENNEY V. BRANDHOVE, SUPRA, AT 378. 

WE CONCLUDE THAT THE SPEECH OR DEBATE CLAUSE PROVIDES COMPLETE
IMMUNITY FOR THE MEMBERS FOR ISSUANCE OF THIS SUBPOENA.  WE DRAW NO
DISTINCTION BETWEEN THE MEMBERS AND THE CHIEF COUNSEL.  IN GRAVEL,
SUPRA, WE MADE IT CLEAR THAT "THE DAY-TO-DAY WORK OF SUCH AIDES IS SO
CRITICAL TO THE MEMBERS' PERFORMANCE THAT THEY MUST BE TREATED AS (THE
MEMBERS') ALTER EGOS . . . ."  408 U.S., AT 616 - 617.  SEE ALSO ID.,
AT 621.  HERE THE COMPLAINT ALLEGES THAT THE " SUBCOMMITTEE MEMBERS AND
STAFF CAUSED THE . . . SUBPOENA TO BE ISSUED . . . UNDER THE AUTHORITY
OF SENATE RESOLUTION 366 . . . ."  THE COMPLAINT THUS DOES NOT
DISTINGUISH BETWEEN THE ACTIVITIES OF THE MEMBERS AND THOSE OF THE
CHIEF COUNSEL.  CONTRAST, DOMBROWSKI V. EASTLAND, 387 U.S., AT 84. 
SINCE THE MEMBERS ARE IMMUNE BECAUSE THE ISSUANCE OF THE SUBPOENA IS
"ESSENTIAL TO LEGISLATING," THEIR AIDES SHARE THAT IMMUNITY.  GRAVEL V.
UNITED STATES, 408 U.S., AT 621; DOE V. MC MILLAN, 412 U.S., AT 317. 

        IV 

RESPONDENTS RELY ON LANGUAGE IN GRAVEL V. UNITED STATES, SUPRA, AT
621: 

"(NO PRIOR CASE HAS HELD THAT MEMBERS OF CONGRESS WOULD BE IMMUNE IF
THEY EXECUTED AN INVALID RESOLUTION BY THEMSELVES CARRYING OUT AN
ILLEGAL ARREST, OR IF, IN ORDER TO SECURE INFORMATION FOR A HEARING,
THEMSELVES SEIZED THE PROPERTY OR INVADED THE PRIVACY OF A CITIZEN. 
NEITHER THEY NOR THEIR AIDES SHOULD BE IMMUNE FROM LIABILITY OR
QUESTIONING IN SUCH CIRCUMSTANCES."  FROM THIS RESPONDENTS ARGUE THAT
THE SUBPOENA WORKS AN INVASION OF THEIR PRIVACY, AND THUS CANNOT BE
IMMUNE FROM JUDICIAL QUESTIONING.  THE CONCLUSION IS UNWARRANTED.  THE
QUOTED LANGUAGE FROM GRAVEL REFERRED TO ACTION WHICH WERE NOT
"ESSENTIAL TO LEGISLATING."  IBID.  EXAMPLE, THE ARREST BY THE SERGEANT
AT ARMS WAS HELD UNPROTECTED IN KILBOURN V. THOMPSON, SUPRA, BECAUSE IT
WAS NOT "ESSENTIAL TO LEGISLATING."  SEE MARSHALL V. GORDON, 243 U.S.
521, 537 (1917).  QUITE THE CONTRARY IS THE CASE WITH A ROUTINE
SUBPOENA INTENDED TO GATHER INFORMATION ABOUT A SUBJECT ON WHICH
LEGISLATION MAY BE HAD.  SEE QUINN V. UNITED STATES, 349 U.S. 155, 161
(1955). 

RESPONDENTS ALSO CONTEND THAT THE SUBPOENA CANNOT BE PROTECTED BY
THE SPEECH OR DEBATE IMMUNITY BECAUSE THE "SOLE PURPOSE" OF THE
INVESTIGATION IS TO FORCE "PUBLIC DISCLOSURE OF BELIEFS, OPINIONS,
EXPRESSIONS AND ASSOCIATIONS OF PRIVATE CITIZENS WHICH MAY BE
UNORTHODOX OR UNPOPULAR."  APP.  16.  RESPONDENTS VIEW THE SCOPE OF THE
PRIVILEGE TOO NARROWLY.  OUR CASES MAKE CLEAR THAT IN DETERMINING THE
LIGITIMACY OF A CONGRESSIONAL ACT WE DO NOT LOOK TO THE MOTIVES ALLEGED
TO HAVE PROMPTED IT.  WATKINS V. UNITED STATES, 354 U.S., AT 200;
HUTCHESON V. UNITED STATES, 369 U.S., AT 614.  IN BREWSTER, WE SAID
THAT "THE SPEECH OR DEBATE CLAUSE PROTECTS AGAINST INQUIRY INTO ACTS
THAT OCCUR IN THE REGULAR COURSE OF THE LEGISLATIVE PROCESS AND INTO
THE MOTIVATION FOR THOSE ACTS."  408 U.S., AT 525 (EMPHASIS ADDED). 
AND IN TENNEY V. BRANDHOVE WE SAID THAT "(THE CLAIM OF AN UNWORTHY
PURPOSE DOES NOT DESTROY THE PRIVILEGE."  341 U.S., AT 377.  IF THE
MERE ALLEGATION THAT A VALID LEGISLATIVE ACT WAS UNDERTAKEN FOR AN
UNWORTHY PURPOSE WOULD LIFT THE PROTECTION OF THE CLAUSE, THEN THE
CLAUSE SIMPLY WOULD NOT PROVIDE THE PROTECTION HISTORICALLY
UNDERGIRDING IT.  " IN TIMES OF POLITICAL PASSION, DISHONEST OR
VINDICTIVE MOTIVES ARE READILY ATTRIBUTED TO LEGISLATIVE CONDUCT AND AS
READILY BELIEVED."  ID., AT 378.  THE WISDOM OF CONGRESSIONAL APPROACH
OR METHODOLOGY IS NOT OPEN TO JUDICIAL VETO.  DOE V. MC MILLAN, 412
U.S., AT 313.  NOR IS THE LEGITIMACY OF A CONGRESSIONAL INQUIRY TO BE
DEFINED BY WHAT IT PRODUCES.  THE VERY NATURE OF THE INVESTIGATIVE
FUNCTION--LIKE ANY RESEARCH--IS THAT IT TAKES THE SEARCHERS UP SOME
"BLIND ALLEYS" AND INTO NONPRODUCTIVE ENTERPRISES.  TO BE A VALID
LEGISLATIVEINQUIRY THERE NEED BE NO PREDICTABLE END RESULT. 

FINALLY, RESPONDENTS ARGUE THAT THE PURPOSE OF THE SUBPOENA WAS TO
"HARASS, CHILL, PUNISH AND DETER" THEM IN THE EXERCISE OF THEIR FIRST
AMENDMENT RIGHTS, APP. 16, AND THUS THAT THE SUBPOENA CANNOT BE
PROTECTED BY THE CLAUSE.  THEIR THEORY SEEMS TO BE THAT ONCE IT IS
ALLEGED THAT FIRST AMENDMENT RIGHTS MAY BE INFRINGED BY CONGRESSIONAL
ACTION THE JUDICIARY MAY INTERVENE TO PROTECT THOSE RIGHTS; THE COURT
OF APPEALS SEEMS TO HAVE SUBSCRIBED TO THAT THEORY.  THAT APPROACH,
HOWEVER, IGNORES THE ABSOLUTE NATURE OF THE SPEECH OR DEBATE PROTECTION
/16/ AND OUR CASES WHICH HAVE BROADLY CONSTRUED THAT PROTECTION.     "
CONGRESSMEN AND THEIR AIDES ARE IMMUNE FROM LIABILITY FOR THEIR ACTIONS
WITHIN THE 'LEGISLATIVE SPHERE,' GRAVEL V. UNITED STATES, SUPRA, AT 624
- 625, EVEN THOUGH THEIR CONDUCT, IF PERFORMED IN OTHER THAN
LEGISLATIVE CONTEXTS, WOULD IN ITSELF BE UNCONSTITUTIONAL OR OTHERWISE
CONTRARY TO CRIMINAL OR CIVIL STATUTES."  DOE V. MC MILLAN, 412 U.S.,
AT 312 - 313.  FOR US TO READ THE CLAUSE AS RESPONDENTS SUGGEST WOULD
CREATE AN EXCEPTION NOT WARRANTED BY THE LANGUAGE, PURPOSES, OR HISTORY
OF THE CLAUSE.  RESPONDENTS MAKE THE FAMILIAR ARGUMENT THAT THE BROAD
PROTECTION GRANTED BY THE CLAUSE CREATES A POTENTIAL FOR ABUSE.  THAT
IS CORRECT, AND IN BREWSTER, SUPRA, WE NOTED THAT THE RISK OF SUCH
ABUSE WAS "THE CONSCIOUS CHOICE OF THE FRAMERS" BUTTRESSED AND
JUSTIFIED BY HISTORY.  408 U.S., AT 516.  OUR CONSISTENTLY BROAD
CONSTRUCTION OF THE SPEECH OR DEBATE CLAUSE RESTS ON THE BELIEF THAT IT
MUST BE SO CONSTRUED TO PROVIDE THE INDEPENDENCE WHICH IS ITS CENTRAL
PURPOSE. 

THIS CASE ILLUSTRATES VIVIDLY THE HARM THAT JUDICIAL INTERFERENCE
MAY CAUSE.  A LEGISLATIVE INQUIRY HAS BEEN FRUSTRATED FOR NEARLY FIVE
YEARS, DURING WHICH THE MEMBERS AND THEIR AIDE HAVE BEEN OBLIGED TO
DEVOTE TIME TO CONSULTATION WITH THEIR COUNSEL CONCERNING THE
LITIGATION, AND HAVE BEEN DISTRACTED FROM THE PURPOSE OF THEIR
INQUIRY.  THE CLAUSE WAS WRITTEN TO PREVENT THE NEED TO BE CONFRONTED
BY SUCH "QUESTIONING" AND TO FORBID INVOCATION OF JUDICIAL POWER TO
CHALLENGE THE WISDOM OF CONGRESS' USE OF ITS INVESTIGATIVE AUTHORITY. 
/17/

        V 

WHEN THE SENATE CASE WAS IN THE COURT OF APPEALS IT WAS CONSOLIDATED
WITH THREE OTHER CASES /18/ BECAUSE IT WAS ASSUMED THAT "A DECISION IN
(THE SENATE) CASE MIGHT WELL CONTROL THE DISPOSITION OF (THE OTHERS)." 
THOSE CASES INVOLVED SUBPOENAS FROM THE HOUSE INTERNAL SECURITY
COMMITTEE TO BANKS FOR THE BANK RECORDS OF CERTAIN ORGANIZATIONS.  AS
IN THE SENATE ASPECT OF THIS CASE, THE ORGANIZATIONS WHOSE BANK RECORDS
WERE SOUGHT SUED, ALLEGING THAT IF THE SUBPOENAS WERE HONORED THEIR
CONSTITUTIONAL RIGHTS WOULD BE VIOLATED.  THE ISSUE OF SPEECH OR DEBATE
PROTECTION FOR MEMBERS AND AIDES IS PRESENTED IN ALL THE CASES
CONSOLIDATED IN THE COURT OF APPEALS.  HOWEVER, THE COMPLAINTS IN THE
HOUSE CASES ARE DIFFERENT FROM THE COMPLAINT IN THE SENATE CASE,
ADDITIONAL PARTIES ARE INVOLVED, AND CONSEQUENTLY ADDITIONAL ISSUES MAY
BE PRESENTED. 

PROGRESS IN THE HOUSE CASES WAS SUSPENDED WHEN THEY WERE IN THE
PLEADING STAGE AWAITING THE OUTCOME OF THE SENATE ASPECT OF THIS CASE. 
THE ISSUES IN THEM, THEREFORE, HAVE NOT BEEN JOINED.  ADDITIONALLY, IT
APPEARS THAT THE SESSION IN WHICH THE HOUSE SUBPOENAS WERE ISSUED HAS
EXPIRED.  SINCE THE HOUSE, UNLIKE THE SENATE, IS NOT A CONTINUING BODY,
MC GRAIN V. DAUGHERTY, 273 U.S., AT 181; GOJACK V. UNITED STATES, 384
U.S. 702, 706 - 707, N. 4 (1966), A QUESTION OF MOOTNESS MAY BE
RAISED.  MOREOVER IT APPEARS THAT THE COMMITTEE THAT ISSUED THE
SUBPOENAS HAS BEEN ABOLISHED BY THE HOUSE, H.RES.  5, 94TH CONG., 1ST
SESS., JAN. 14, 1975.  IN VIEW OF THESE PROBLEMS, AND BECAUSE THE HOUSE
ASPECTS OF THIS CASE WERE NOT BRIEFED OR ARGUED HERE, WE CONCLUDE IT
WOULD BE UNWISE TO ATTEMPT TO DECIDE ANY ISSUES THEY MIGHT PRESENT THAT
ARE NOT RESOLVED IN THE SENATE ASPECT OF THIS CASE.  POWELL V. MC
CORMACK, 395 U.S., AT 496 N. 8,559 (STEWART, J., DISSENTING). 

JUDGMENT WITH RESPECT TO THE SENATE ASPECT OF THIS CASE IS REVERSED
AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR ENTRY OF A
JUDGMENT DIRECTING THE DISTRICT COURT TO DISMISS THE COMPLAINT.  THE
HOUSE ASPECTS OF THIS CASE ARE REMANDED WITH DIRECTIONS TO REMAND TO
THE DISTRICT COURT FOR FURTHER CONSIDERATION CONSISTENT WITH THIS
OPINION. 

                      REVERSED AND REMANDED. 

/1/ USSF IS, OR HAS BEEN, LISTED WITH THE INTERNAL REVENUE SERVICE
AS A TAX-EXEMPT CHARITABLE ORGANIZATION. 

/2/ ACCORDING TO THE COMPLAINT FILED IN THIS ACTION USSF HAS HELPED
PROVIDE CIVILIAN LEGAL DEFENSE FOR MILITARY PERSONNEL, AND BOOKS,
NEWSPAPERS, AND LIBRARY MATERIAL ON REQUEST.  APP. 11. 

/3/ IBID. 

/4/ THE SUBPOENA AT ISSUE HERE DIRECTED " ANY U.S. MARSHAL" TO SERVE
AND RETURN, BUT THERE IS NO PROOF OF SERVICE IN THE RECORD.  THE
SUBCOMMITTEE HAD ISSUED TWO PREVIOUS SUBPOENAS DUCES TECUM TO THE BANK,
BUT THEY HAD BEEN WITHDRAWN BECAUSE OF PROCEDURAL PROBLEMS. 
APPARENTLY, AT LEAST ONE OF THOSE SUBPOENAS ACTUALLY WAS SERVED ON THE
BANK.  ID., AT 13.  THE OTHER SUBPOENA ALSO MAY HAVE BEEN SERVED
BECAUSE THE BANK INFORMED RESPONDENTS OF ITS EXISTENCE.  ID., AT 14. 
RESPONDENTS CLAIM ALL THREE SUBPOENAS ARE SUBSTANTIALLY IDENTICAL. 

/5/ APPARENTLY, AT LEAST PARTIALLY BECAUSE THE BANK WAS NEVER
SERVED, TR. OF ORAL ARG. 22, 46, IT HAS NOT PARTICIPATED IN THE
ACTION.  ID., AT 15, 19 - 20, 21 - 22.  THEREFORE, AS THE CASE REACHES
US ONLY THE SENATORS AND THE CHIEF COUNSEL ARE ACTIVE PARTICIPANTS. 

/6/ APP. 16. 

/7/ ID., AT 17 - 18. 

/8/ ID., AT 18. 

/9/ ON JUNE 1, THE DISTRICT COURT REFUSED TO ENTER A TEMPORARY
RESTRAINING ORDER, BUT ON JUNE 4 THE COURT OF APPEALS STAYED
ENFORCEMENT OF THE SUBPOENA PENDING EXPEDITED CONSIDERATION OF THE
MATTER BY THE DISTRICT COURT.  THE COURT OF APPEALS REASONED THAT THE
THREAT OF IRREPARABLE INJURY IF THE SUBPOENA WERE HONORED, AND THE
SIGNIFICANCE OF THE ISSUES INVOLVED, NECESSITATED "THE KIND OF
CONSIDERATION AND DELIBERATION THAT WOULD BE PROVIDED BY . . . A
HEARING ON AN APPLICATION FOR INJUNCTION."  ID., AT 22.  ONE JUDGE
DISSENTED. 

/10/ AFTER THE COURT OF APPEALS STAYED ENFORCEMENT OF THE SUBPOENA
THE DISTRICT COURT HELD AN EXPEDITED HEARING ON RESPONDENTS' MOTION FOR
A PRELIMINARY INJUNCTION AND PETITIONERS' MOTION TO DISMISS. 
AFTERWARDS THE DISTRICT COURT DENIED BOTH MOTIONS; HOWEVER, THE COURT
OF APPEALS AGAIN STAYED ENFORCEMENT OF THE SUBPOENA PENDING FURTHER
ORDER.  AT THAT TIME THE COURT OF APPEALS ORDERED THE DISTRICT COURT TO
PROCEED TO FINAL JUDGMENT ON THE MERITS, WITH A VIEW TO CONSOLIDATING
ANY APPEAL FROM THAT JUDGMENT WITH THE APPEAL ON THE DENIAL OF A
PRELIMINARY INJUNCTION.  THE DISTRICT COURT THEN TOOK TESTIMONY ON THE
MERITS AND, FINALLY, DENIED RESPONDENTS' MOTION FOR A PERMANENT
INJUNCTION AGAINST THE SUBPOENA.  APPEAL FROM THAT DECISION APPARENTLY
WAS CONSOLIDATED WITH THE APPEAL FROM THE DENIAL OF THE PRELIMINARY
INJUNCTION. 

/11/ ID., AT 31. 

/12/ IT APPEARS THAT THE DISTRICT COURT FINDING OF FAILURE TO SHOW
IRREPARABLE INJURY WAS HELD CLEARLY ERRONEOUS.  159 U.S. APP. D.C. 352,
367, 488 F.2D 1252, 1267 (1973).  SEE FED. RULE CIV. PROC. 52(A). 

/13/ RESPONDENTS HAD MADE A MOTION IN THE DISTRICT COURT TO COMPEL
PETITIONER SOURWINE, THE SUBCOMMITTEE COUNSEL, TO GIVE TESTIMONY.  THE
SENATE PASSED A RESOLUTION, S.RES.  478, 91ST CONG.,2D SESS., OCT. 13,
1970, AUTHORIZING SOURWINE TO TESTIFY ONLY AS TO MATTERS OF PUBLIC
RECORD.  RESPONDENTS MOVED TO COMPEL FURTHER TESTIMONY FROM SOURWINE,
BUT THE DISTRICT COURT DENIED THE MOTION.  THE COURT RULED SOURWINE'S
INFORMATION "HAS BEEN RECEIVED BY HIM PURSUANT TO HIS OFFICIAL DUTIES
AS A STAFF EMPLOYEE OF THE SENATE . . . (AND AS) SUCH, THE INFORMATION
IS WITHIN THE PRIVILEGE OF THE SENATE . . . SENATE RULE 301, SENATE
MANUAL, SENATE DOCUMENT NO. 1 OF THE 90TH CONGRESS, FIRST SESSION." 
APP. 38.  THE COURT ALSO RULED THAT THE SENATE MADE A TIMELY AND
APPROPRIATE INVOCATION OF ITS PRIVILEGE.  THUS INFORMATION HELD BY
SOURWINE WAS NOT DISCOVERABLE.  FED. RULE CIV. PROC. 26(B)(1). 
RESPONDENT'S APPEALS FROM THIS RULING WAS HEARD BY THE COURT OF APPEALS
WITH THEIR APPEALS FROM THE DENIAL OF INJUNCTIVE RELIEF.  159 U.S. APP.
D.C. AT 358, 488 F.2D, AT 1258. 

/14/ ON THIS RECORD THE COURT OF APPEALS CORRECTLY HELD THAT THE
DISTRICT COURT PROPERLY ENTERTAINED THIS ACTION INITIALLY.  159 U.S.
APP. D.C., AT 359 - 360, 488 F.2D, AT 1259 - 1260.  THE COURT OF
APPEALS SAW A SIGNIFICANT DIFFERENCE BETWEEN A SUBPOENA THAT SEEKS
INFORMATION DIRECTLY FROM A PARTY AND ONE THAT SEEKS THE SAME
INFORMATION FROM A THIRD PERSON.  IN THE FORMER CASE THE PARTY CAN
RESIST AND THEREBY TEST THE SUBPOENA; IN THE LATTER CASE, HOWEVER,
UNLESS A COURT MAY INQUIRE TO DETERMINE WHETHER ALEGITIMATE LEGISLATIVE
PURPOSE IS PRESENT, DOE V. MC MILLAN, 412 U.S. 306, 312 - 313 (1973);
GRAVEL V. UNITED STATES, 408 U.S. 606, 624 (1972); TENNEY V. BRANDHOVE,
341 U.S. 367, 376 (1951), COMPLIANCE BY THE THIRD PERSON COULD
FRUSTRATE ANY JUDICIAL INQUIRY. 

/15/ ALTHOUGH THE POWER TO INVESTIGATE IS NECESSARILY BROAD IT IS
NOT UNLIMITED.  ITS BOUNDARIES ARE DEFINED BY ITS SOURCE.  WATKINS V.
UNITED STATES, 354 U.S. 178, 197 (1957).  THUS, "(THE SCOPE OF THE
POWER OF INQUIRY . . . IS AS PENETRATINGAND FAR-REACHING AS THE
POTENTIAL POWER TO ENACT AND APPROPRIATE UNDER THE CONSTITUTION." 
BARENBLATT V. UNITED STATES, 360 U.S. 109, 111 (1959); SINCLAIR V.
UNITED STATES, 279 U.S. 263, 291 - 292 (1929).  WE HAVE MADE IT CLEAR,
HOWEVER, THAT CONGRESS IS NOT INVESTED WITH A "'GENERAL' POWER TO
INQUIRE INTO PRIVATE AFFAIRS."  MC GRAIN V. DAUGHERTY, 273 U.S. 135,
173 (1927).  THE SUBJECT OF ANY INQUIRY ALWAYS MUST BE ONE "ON WHICH
LEGISLATION COULD BE HAD."  ID., AT 177. 

/16/ IN SOME SITUATIONS WE HAVE BALANCED FIRST AMENDMENT RIGHTS
AGAINST PUBLIC INTERESTS, WATKINS V. UNITED STATES, 354 U.S. 178
(1957); BARENBLATT V. UNITED STATES, 360 U.S. 109 (1959), BUT THOSE
CASES DID NOT INVOLVE ATTEMPTS BY PRIVATE PARTIES TO IMPEDE
CONGRESSIONAL ACTION WHERE THE SPEECH OR DEBATE CLAUSE WAS RAISED BY
CONGRESS BY WAY OF DEFENSE.  CF. UNITED STATES V. RUMELY, 345 U.S. 41,
46 (1953).  THE CASES WERE CRIMINAL PROSECUTIONS WHERE DEFENDANTS
SOUGHT TO JUSTIFY THEIR REFUSALS TO ANSWER CONGRESSIONAL INQUIRIES BY
ASSERTING THEIR FIRST AMENDMENT RIGHTS.  DIFFERENT PROBLEMS WERE
PRESENTED FROM THOSE HERE.  ANY INTERFERENCE WITH CONGRESSIONAL ACTION
HAD ALREADY OCCURRED WHEN THE CASES REACHED US, AND CONGRESS WAS
SEEKING THE AID OF THE JUDICIARY TO ENFORCE ITS WILL.  OUR TASK WAS TO
PERFORM THE JUDICIAL FUNCTION IN CRIMINAL PROSECUTIONS, AND WE PROPERLY
SCRUTINIZED THE PREDICATES OF THE CRIMINAL PROSECUTIONS.  WATKINS,
SUPRA, AT 208; FLAXER V. UNITED STATES, 358 U.S. 147, 151 (1958); QUINN
V. UNITED STATES, 349 U.S. 155, 162, 169 (1955); HUTCHESON V. UNITED
STATES, 369 U.S. 599, 630 - 631 (1962) (WARREN, C.J., DISSENTING); 640
(DOUGLAS, J., DISSENTING).  AS MR. JUSTICE FRANKFURTER SAID CONCURRING
IN WATKINS:  " BY . . . MAKING THE FEDERAL JUDICIARY THE AFFIRMATIVE
AGENCY FOR ENFORCING THE AUTHORITY THAT UNDERLIES THE CONGRESSIONAL
POWER TO PUNISH FOR CONTEMPT, CONGRESS NECESSARILY BRINGS INTO PLAY THE
SPECIFIC PROVISIONS OF THE CONSTITUTION RELATING TO THE PROSECUTION OF
OFFENSES AND THOSE IMPLIED RESTRICTIONS UNDER WHICH COURTS FUNCTION." 
354 U.S., AT 216.  WHERE WE ARE PRESENTED WITH AN ATTEMPT TO INTERFERE
WITH AN ONGOING ACTIVITY BY CONGRESS, AND THAT ACTIVITY IS FOUND TO BE
WITHIN THE LEGITIMATE LEGISLATIVE SPHERE, BALANCING PLAYS NO PART.  THE
SPEECH OR DEBATE PROTECTION PROVIDES AN ABSOLUTE IMMUNITY FROM JUDICIAL
INTERFERENCE.  COLLATERAL HARM WHICH MAY OCCUR IN THE COURSE OF A
LEGITIMATE LEGISLATIVE INQUIRY DOES NOT ALLOW US TO FORCE THE INQUIRY
TO "GRIND TO A HALT."  HUTCHESON V. UNITED STATES, SUPRA, AT 618. 

/17/ ALTHOUGH THE SPEECH OR DEBATE CLAUSE HAS NEVER BEEN READ SO
BROADLY THAT LEGISLATORS ARE "ABSOLVED OF THE RESPONSIBILITY OF FILING
A MOTION TO DISMISS," POWELL V. MC CORMACK, 395 U.S. 486, 505 N. 25
(1969); SEE TENNEY V. BRANDHOVE, 341 U.S., AT 376 - 377, THE PURPOSES
WHICH THE CLAUSE SERVES REQUIRE THAT SUCH MOTIONS BE GIVEN THE MOST
EXPEDITIOUS TREATMENT BY DISTRICT COURTS BECAUSE ONE BRANCH OF
GOVERNMENT IS BEING ASKED TO HALT THE FUNCTIONS OF A COORDINATE
BRANCH.  IF THERE IS A DISMISSAL AND AN APPEAL, COURTS OF APPEALS HAVE
A DUTY TO SEE THAT THE LITIGATION IS SWIFTLY RESOLVED.  ENFORCEMENT OF
THE SUBCOMMITTEE'S SUBPOENA HAS BEEN RESTRAINED SINCE JUNE 1970, NEARLY
FIVE YEARS, WHILE THIS LITIGATION DRAGGED THROUGH THE COURTS.  THIS
PROTRACTED DELAY HAS FRUSTRATED A VALID CONGRESSIONAL INQUIRY. 

/18/ PROGRESSIVE LABOR PARTY V. COMMITTEE ON INTERNAL SECURITY OF
THE U.S. HOUSE OF REPRESENTATIVES (C.A. NO. 71 - 1606); NATIONAL PEACH
COALITION V. COMMITTEE ON INTERNAL SECURITY OF THE U.S. HOUSE OF
REPRESENTATIVES (C.A. NO. 71 - 1693); PEOPLES COALITION FOR PEACE AND
JUSTICE V. COMMITTEE ON INTERNAL SECURITY OF THE U.S. HOUSE OF
REPRESENTATIVES (C.A. NO. 71 - 1717). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART JOIN, CONCURRING IN THE JUDGNMENT. 

I AGREE WITH THE COURT THAT THE SPEECH OR DEBATE CLAUSE PROTECTS THE
ACTIONS OF THE SENATE PETITIONERS IN THIS CASE FROM JUDICIAL
INTERFERENCE, AND THAT THE HOUSE ASPECTS OF THIS CASE SHOULD BE
RECONSIDERED BY THE DISTRICT COURT.  AS OUR CASES HAVE CONSISTENTLY
HELD, HOWEVER, THE SPEECH OR DEBATE CLAUSE PROTECTS LEGISLATORS AND
THEIR CONFIDENTIAL AIDES FROM SUIT; IT DOES NOT IMMUNIZE CONGRESSIONAL
ACTION FROM JUDICIAL REVIEW.  I WRITE TODAY ONLY TO EMPHASIZE THAT THE
SPEECH OR DEBATE CLAUSE DOES NOT ENTIRELY IMMUNIZE A CONGRESSIONAL
SUBPOENA FROM CHALLENGE BY A PARTY NOT IN A POSITION TO ASSERT HIS
CONSTITUTIONAL RIGHTS BY REFUSING TO COMPLY WITH IT.

        I 

WHEN THE SENATE SUBCOMMITTEE ON INTERNAL SECURITY SUBPOENAED THE
RECORDS OF THE BANK ACCOUNT OF RESPONDENT USSF (HEREINAFTER
RESPONDENT), RESPONDENT BROUGHT THIS SUIT IN THE DISTRICT OF COLUMBIA
AGAINST THE MEMBERS OF THE SUBCOMMITTEE, ITS COUNSEL, AND THE BANK TO
DECLARE INVALID AND RESTRAIN ENFORCEMENT OF THE SUBPOENA.  SUIT WAS
BROUGHT IN THE DISTRICT OF COLUMBIA BECAUSE THE COURT OF APPEALS FOR
THE SECOND CIRCUIT HAD HELD ONE WEEK BEFORE IN A SUIT AGAINST THE SAME
SUBCOMMITTEE AND ITS COUNSEL THAT JURISDICTION AND VENUE LAY ONLY IN
THE DISTRICT OF COLUMBIA.  LIBERATION NEWS SERVICE V. EASTLAND, 426
F.2D 1379 (1970).  HAVING SUED IN THE DISTRICT, HOWEVER, RESPONDENT
FOUND THAT IT COULD NOT GET PROPER SERVICE ON THE NEW YORK BANK. 
CONSEQUENTLY, THE ONLY PARTIES THAT IT BROUGHT BEFORE THE COURTS WERE
THE SENATORS AND THEIR COUNSEL.     AS THE COURT POINTS OUT, THE
DISTRICT COURT PROPERLY ENTERTAINED THE ACTION IN ORDER TO PROVIDE A
FORUM IN WHICH RESPONDENT COULD ASSERT ITS CONSTITUTIONAL OBJECTIONS TO
THE SUBPOENA, SINCE A NEUTRAL THIRD PARTY COULD NOT BE EXPECTED TO
RESIST THE SUBPOENA BY PLACING ITSELF IN CONTEMPT.  ANTE, AT 501 N. 14;
SEE PERLMAN V. UNITED STATES, 247 U.S. 7, 12 (1918); UNITED STATES V.
DOE, 455 F.2D 753, 756 - 757 (CA1 1972), VACATED SUB NOM. GRAVEL V.
UNITED STATES, 408 U.S. 606 (1972); SEE ALSO UNITED STATES V. NIXON,
418 U.S. 683, 691 (1974).  BUT A COURT'S INQUIRY IN SUCH A SETTING IS
NECESSARILY QUITE LIMITED ONCE DEFENDANTS ENTITLED TO DO SO INVOKE THE
PRIVILEGE OF THE SPEECH OR DEBATE CLAUSE, AS WAS DONE HERE.  IF THE
SENATORS' ACTIONS WERE WITHIN THE "LEGITIMATE LEGISLATIVE SPHERE," THE
MATTER ENDS THERE AND THEY ARE ANSWERABLE NO FURTHER TO THE COURT.  IF
THEIR COUNSEL'S ACTIONS WERE IN AID OF THAT ACTIVITY, THEN AS A
CONFIDENTIAL EMPLOYEE OF THE MEMBERS, HE IS EQUALLY SHIELDED FROM
FURTHER JUDICIAL INTERFERENCE.  COMPARE GRAVEL V. UNITED STATES, SUPRA,
AT 616 - 622, WITH DOE V. MC MILLAN, 412 U.S. 306, 314 - 316 (1973). 
/1/ 

THE COURT APPLIES THIS WELL-SETTLED DOCTRINE TO THE PRESENT CASE AND
HOLDS THAT SINCE THE ISSUANCE OF THE SUBPOENA FELL WITHIN THE SPHERE OF
LEGITIMATE LEGISLATIVE ACTIVITY, THE PROCEEDINGS AGAINST THE
PETITIONERS MUST COME TO AN END.  I DO NOT READ THE COURT TO SUGGEST,
HOWEVER, NOR COULD I AGREE, THAT THE CONSTITUTIONALITY OF A
CONGRESSIONAL SUBPOENA IS ALWAYS SHIELDED FROM MORE SEARCHING JUDICIAL
INQUIRY.  FOR, AS THE VERY CASES ON WHICH THE COURT RELIES DEMONSTRATE,
THE PROTECTION OF THE SPEECH OR DEBATE CLAUSE IS PERSONAL.  IT EXTENDS
TO MEMBERS AND THEIR COUNSEL ACTING IN A LEGISLATIVE CAPACITY; IT DOES
NOT PRECLUDE JUDICIAL REVIEW OF THEIR DECISIONS IN AN APPROPRIATE CASE,
WHETHER THEY TAKE THE FORM OF LEGISLATION OR A SUBPOENA. 

        II 

MODERN LEGISLATURES, AND PARTICULARLY THE CONGRESS, MAY LEGISLATE ON
A WIDE RANGE OF SUBJECTS.  IN ORDER TO DISCHARGE THIS FUNCTION, AND
THEIR RELATED INFORMING FUNCTION, THEY MAY GENUINELY NEED A GREAT DEAL
OF INFORMATION IN THE EXCLUSIVE POSSESSION OF PERSONS WHO WOULD NOT
MAKE IT AVAILABLE EXCEPT UNDER THE COMPULSION OF A SUBPOENA.  WHEN DULY
SUBPOENAED, HOWEVER, SUCH A PERSON DOES NOT SHED HIS CONSTITUTIONAL
RIGHT TO WITHHOLD CERTAIN CLASSES OF INFORMATION.  IF HE REFUSES TO
TESTIFY OR TO PRODUCE DOCUMENTS AND INVOKES A PERTINENT PRIVILEGE, HE
STILL RUNS THE RISK THAT THE LEGISLATURE WILL CITE HIM FOR CONTEMPT. 
/2/ AT TRIAL HE MAY DEFEND ON THE BASIS OF THE CONSTITUTIONAL RIGHT TO
WITHHOLD INFORMATION FROM THE LEGISLATURE, AND HIS RIGHT WILL BE
RESPECTED ALONG WITH THE LEGITIMATE NEEDS OF THE LEGISLATURE.  AS THE
COURT SAID IN WATKINS V. UNITED STATES, 354 U.S. 178, 188 (1957): 

" THE BILL OF RIGHTS IS APPLICABLE TO (CONGRESSIONAL) INVESTIGATIONS
AS TO ALL FORMS OF GOVERNMENTAL ACTION.  WITNESSES CANNOT BE COMPELLED
TO GIVE EVIDENCE AGAINST THEMSELVES.  THEY CANNOT BE SUBJECTED TO
UNREASONABLE SEARCH AND SEIZURE.  NOR CAN THE FIRST AMENDMENT FREEDOMS
OF SPEECH, PRESS, RELIGION, OR POLITICAL BELIEF AND ASSOCIATION BE
ABRIDGED."  ACCORD, GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION
COMMITTEE, 372 U.S. 539 (1963); SEE QUINN V. UNITED STATES, 349 U.S.
155, 161 (1955); REINSTEIN & SILVERGLATE, LEGISLATIVE PRIVILEGE AND THE
SEPARATION OF POWERS, 86 HARV. L.REV.  1113, 1173 - 1176 (1973). 

THE SPEECH OR DEBATE CLAUSE CANNOT BE USED TO AVOID MEANINGFUL
REVIEW OF CONSTITUTIONAL OBJECTIONS TO A SUBPOENA SIMPLY BECAUSE THE
SUBPOENA IS SERVED ON A THIRD PARTY.  OUR PRIOR CASES ARISING UNDER THE
SPEECH OR DEBATE CLAUSE INDICATE ONLY THAT A MEMBER OF CONGRESS OR HIS
AIDE MAY NOT BE CALLED UPON TO DEFEND A SUBPOENA AGAINST CONSTITUTIONAL
OBJECTION, AND NOT THAT THE OBJECTION WILL NOT BE HEARD AT ALL. 

THE PRIVILEGE OF THE SPEECH OR DEBATE CLAUSE EXTENDS TO MEMBERS OF
CONGRESS WHEN THEIR ACTION IS "ESSENTIAL TO LEGISLATING," IN ORDER TO
ASSURE THE INDEPENDENCE OF THE LEGISLATORS AND THEIR FREEDOM FROM
VEXATIOUS AND DISTRACTING LITIGATION.  SEE UNITED STATES V. JOHNSON,
383 U.S. 169, 180 -182 (1966); UNITED STATES V. BREWSTER, 408 U.S. 501,
512 (1972).  FURTHER, "A MEMBER AND HIS AIDE ARE TO BE 'TREATED AS
ONE'" UNDER THE CLAUSE, "INSOFAR AS THE CONDUCT OF THE LATTER WOULD BE
A PROTECTED LEGISLATIVE ACT IF PERFORMED BY THE MEMBER HIMSELF." 
GRAVEL V. UNITED STATES, 408 U.S., AT 616, 618.  AT THE SAME TIME,
HOWEVER, THE SPEECH OR DEBATE CLAUSE DOES NOT INSULATE LEGISLATIVE
FUNCTIONARIES CARRYING OUT NONLEGISLATIVE TASKS.  DOE V. MC MILLAN, 412
U.S., AT 315. 

KILBOURN V. THOMPSON, 103 U.S. 168 (1881), WAS AN ACTION TO RECOVER
DAMAGES FOR FALSE IMPRISONMENT.  THE COURT HELD THAT THE SPEECH OR
DEBATE CLAUSE AFFORDED THE DEFENDANT MEMBERS OF CONGRESS A GOOD DEFENSE
SINCE THEY HAD TAKEN NO PART IN KILBOURN'S ARREST OTHER THAN TO VOTE
THAT THE SERGEANT AT ARMS ACCOMPLISH IT.  THE SERGEANT AT ARMS,
HOWEVER, WAS HELD TO ANSWER FOR CARRYING OUT THEIR UNCONSTITUTIONAL
DIRECTIVE; AND KILBOURN LATER RECOVERED $20,000 FROM HIM.  SEE KILBOURN
V. THOMPSON, MAC ARTH.  & M. 401, 432 (SUP. CT. D.C. 1883).  THE BASIS
FOR THE COURT'S HOLDING WAS NOT, HOWEVER, AS THE COURT SEEMS AT ONE
POINT TO SUGGEST, ANTE, AT 508, THAT THE ARREST WAS INESSENTIAL TO
LEGISLATING.  WE HAVE ALREADY TWICE OBSERVED THAT THE "RESOLUTION
AUTHORIZING KILBOURN'S ARREST . . . WAS CLEARLY LEGISLATIVE IN NATURE. 
BUT THE RESOLUTION WAS SUBJECT TO JUDICIAL REVIEW INSOFAR AS ITS
EXECUTION IMPINGED ON A CITIZEN'S RIGHTS AS IT DID THERE.  THAT THE
HOUSE COULD WITH IMPUNITY ORDER AN UNCONSTITUTIONAL ARREST AFFORDED NO
PROTECTION FOR THOSE WHO MADE THE ARREST."  GRAVEL, SUPRA, AT 618
(EMPHASIS ADDED); DOE V. MC MILLAN, SUPRA, AT 315 N. 9. 

        III 

THIS CASE DOES NOT PRESENT THE QUESTIONS OF WHAT WOULD BE THE PROPER
PROCEDURE, AND WHO MIGHT BE THE PROPER PARTIES DEFENDANT, IN AN EFFORT
TO GET BEFORE A COURT A CONSTITUTIONAL CHALLENGE TO A SUBPOENA DUCES
TECUM ISSUED TO A THIRD PARTY.  /3/ AS RESPONDENT'S COUNSEL CONCEDED AT
ORAL ARGUMENT, THIS CASE IS AT AN END IF THE SENATE PETITIONERS ARE
UPHELD IN THEIR CLAIM OF IMMUNITY, AS THEY MUST BE.  /4/ 

/1/ DOMBROWSKI V. EASTLAND, 387 U.S. 82 (1957), WAS A DAMAGES ACTION
AGAINST THE SAME CHAIRMAN AND COUNSEL SOURWINE OF THE SENATE
SUBCOMMITTEE ON INTERNAL SECURITY, BASED ON ALLEGATIONS OF A CONSPIRACY
WITH STATE OFFICIALS TO VIOLATE THE PLAINTIFF'S FOURTH AMENDMENT
RIGHTS.  THE COURT DISTINGUISHED BETWEEN THE SENATOR AND COUNSEL,
REMANDING ONLY THE LATTER FOR TRIAL BECAUSE THERE WAS DISPUTED EVIDENCE
IN THE RECORD GIVING "MORE THAN MERELY COLORABLE SUBSTANCE" TO THE
CLAIMS AGAINST HIM, ID., AT 84; THE RECORD CONTAINED NO EVIDENCE OF THE
SENATOR'S INVOLVEMENT IN ANY ACTIVITY THAT COULD GIVE RISE TO
LIABILITY.  THE COURT NOTED THAT THE DOCTRINE OF IMMUNITY FOR ACTS
WITHIN THE LEGISLATIVE SPHERE IS "LESS ABSOLUTE, ALTHOUGH APPLICABLE,
WHEN APPLIED TO OFFICERS OR EMPLOYEES OF A LEGISLATIVE BODY, RATHER
THAN TO LEGISLATORS THEMSELVES."  ID., AT 85.  IN THE PRESENT CASE,
WHERE COUNSEL IS ALLEGED ONLY TO HAVE JOINED WITH THE SENATORS IN
CAUSING THE SUBPOENA TO BE ISSUED, WE HAVE NO OCCASION TO DISTINGUISH
BETWEEN MR. SOURWINE AND THE SENATORS. 

/2/ IN THE FEDERAL SYSTEM, THIS IS DONE BY THE APPROPRIATE CHAMBER
REFERRING THE MATTER TO THE UNITED STATES ATTORNEY FOR PRESENTATION TO
A GRAND JURY, INDICTMENT, AND TRIAL IN THE FEDERAL COURTS.  SEE 2
U.S.C. SECS. 192 - 194. 

/3/ SEE THE OPINION BELOW, 159 U.S.APP.  D.C. 352, 370, 488 F.2D
1252, 1270 (1973); LIBERATION NEWS SERVICE V. EASTLAND, 426 F.2D 1379,
1384 N. 10 (CA2 1970); CF. STAMLER V. WILLIS, 415 F.2D 1365, 1369 (CA7
1969). 

/4/ IN THE HOUSE ASPECTS OF THIS CASE, WHERE THE BANKS TO WHICH THE
SUBPOENAS WERE DIRECTED ARE WITHIN THE JURISDICTION OF THE DISTRICT
COURT, THIS WOULD NOT NECESSARILY BE TRUE IF THAT COURT WERE TO
DETERMINE THAT THE ISSUES ARE NOT MOOT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

THE BASIC ISSUES IN THIS CASE WERE CANVASSED BY ME IN TENNEY V.
BRANDHOVE, 341 U.S. 367, 381 - 383 (1951) (DISSENTING OPINION), AND BY
THE COURT IN DOMBROWSKI V. EASTLAND, 387 U.S. 82 (1967), IN AN OPINION
WHICH I JOINED.  UNDER OUR FEDERAL REGIME THAT DELEGATES, BY THE
CONSTITUTION AND ACTS OF CONGRESS, AWESOME POWERS TO INDIVIDUALS, THOSE
POWERS MAY NOT BE USED TO DEPRIVE PEOPLE OF THEIR FIRST AMENDMENT OR
OTHER CONSTITUTIONAL RIGHTS.  IT IS MY VIEW THAT NO OFFICIAL, NO MATTER
HOW HIGH OR MAJESTIC HIS OR HER OFFICE, WHO IS WITHIN THE REACH OF
JUDICIAL PROCESS, MAY INVOKE IMMUNITY FOR HIS ACTIONS FOR WHICH
WRONGDOERS NORMALLY SUFFER.  THERE MAY BE FEW OCCASIONS WHEN, ON THE
MERITS, IT WOULD BE APPROPRIATE TO INVOKE SUCH A REMEDY.  BUT NO REGIME
OF LAW THAT CAN RIGHTFULLY CLAIM THAT NAME MAY MAKE TRUSTEES OF THESE
VAST POWERS IMMUNE FROM ACTIONS BROUGHT BY PEOPLE WHO HAVE BEEN WRONGED
BY OFFICIAL ACTION.  SEE WATKINS V. UNITED STATES, 354 U.S. 178, 198
(1957). 

HERBERT J. MILLER, JR., ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEF WERE NATHAN LEWIN AND A. RAYMOND RANDOLPH, JR. 

NANCY STEARNS AND JEREMIAH S. GUTMAN ARGUED THE CAUSE AND FILED A
BRIEF FOR RESPONDENTS. 
..END :













BREED V. JONES, 421 U.S. 519 


       BREED, DIRECTOR, CALIFORNIA YOUTH AUTHORITY V. JONES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 73 - 1995.  ARGUED FEBRUARY 25 - 26, 1975--DECIDED MAY

27, 1975; 497 F.2D 1160, VACATED AND REMANDED. 


    THE PROSECUTION OF RESPONDENT AS AN ADULT IN CALIFORNIA

  SUPERIOR COURT, AFTER AN ADJUDICATORY FINDING IN JUVENILE COURT

  THAT HE HAD VIOLATED A CRIMINAL STATUTE AND A SUBSEQUENT FINDING

  THAT HE WAS UNFIT FOR TREATMENT AS A JUVENILE, VIOLATED THE

  DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT, AS APPLIED TO THE

  STATES THROUGH THE FOURTEENTH AMENDMENT.  PP. 528 - 541. 

     (A) RESPONDENT WAS PUT IN JEOPARDY AT THE JUVENILE COURT

  ADJUDICATORY HEARING, WHOSE OBJECT WAS TO DETERMINE WHETHER HE

  HAD COMMITTED ACTS THAT VIOLATED A CRIMINAL LAW AND WHOSE

  POTENTIAL CONSEQUENCES INCLUDED BOTH THE STIGMA INHERENT IN THAT

DETERMINATION AND THE DEPRIVATION OF LIBERTY FOR MANY YEARS. 

  JEOPARDY ATTACHED WHEN THE JUVENILE COURT, AS THE TRIER OF THE

  FACTS, BEGAN TO HEAR EVIDENCE.  PP. 528 - 531. 

     (B) CONTRARY TO PETITIONER'S CONTENTION, RESPONDENT'S TRIAL IN

  SUPERIOR COURT FOR THE SAME OFFENSE AS THAT FOR WHICH HE HAD BEEN

  TRIED IN JUVENILE COURT, VIOLATED THE POLICIES OF THE DOUBLE

  JEOPARDY CLAUSE, EVEN IF RESPONDENT "NEVER FACED THE RISK OF MORE

  THAN ONE PUNISHMENT," SINCE THE CLAUSE "IS WRITTEN IN TERMS OF

  POTENTIAL OR RISK OF TRIAL AND CONVICTION, NOT PUNISHMENT." 
PRICE

  V. GEORGIA, 398 U.S. 323, 329.  RESPONDENT WAS SUBJECTED TO THE

BURDEN OF TWO TRIALS FOR THE SAME OFFENSE; HE WAS TWICE PUT TO

  THE TASK OF MARSHALING HIS RESOURCES AGAINST THOSE OF THE STATE,

  TWICE SUBJECTED TO THE "HEAVY PERSONAL STRAIN" THAT SUCH AN

  EXPERIENCE REPRESENTS.  PP. 532 - 533. 

     (C) IF THERE IS TO BE AN EXCEPTION TO THE CONSTITUTIONAL

  PROTECTION AGAINST A SECOND TRIAL IN THE CONTEXT OF THE JUVENILE

  COURT SYSTEM, IT MUST BE JUSTIFIED BY INTERESTS OF SOCIETY,

  REFLECTED IN THAT UNIQUE INSTITUTION, OR OF JUVENILES THEMSELVES,

  OF SUFFICIENT SUBSTANCE TO RENDER TOLERABLE THE COSTS AND BURDENS

  THAT THE EXCEPTION WILL ENTAIL IN INDIVIDUAL CASES.  PP. 533 -

  534. 

 (D) GIVING RESPONDENT THE CONSTITUTIONAL PROTECTION AGAINST

  MULTIPLE TRIALS IN THIS CONTEXT WILL NOT, AS PETITIONER CLAIMS,

  DIMINISH THE FLEXIBILITY AND INFORMALITY OF JUVENILE COURT

  PROCEEDINGS TO THE EXTENT THAT THOSE QUALITIES RELATE UNIQUELY TO

  THE GOALS OF THE JUVENILE COURT SYSTEM.  A REQUIREMENT THAT

  TRANSFER HEARINGS BE HELD PRIOR TO ADJUDICATORY HEARINGS DOES NOT

  ALTER THE NATURE OF THE LATTER PROCEEDINGS.  MORE SIGNIFICANT,

  SUCH A REQUIREMENT NEED NOT AFFECT THE QUALITY OF DECISIONMAKING

  AT TRANSFER HEARINGS THEMSELVES.  THE BURDENS PETITIONER

  ENVISIONS WOULD NOT POSE A SIGNIFICANT PROBLEM FOR THE

  ADMINISTRATION OF THE JUVENILE COURT SYSTEM, AND QUITE APART FROM

  THAT CONSIDERATION, TRANSFER HEARINGS PRIOR TO ADJUDICATION WILL

  AID THE OBJECTIVES OF THAT SYSTEM.  PP. 535 - 541. 

     BURGER, C.J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO DECIDE WHETHER THE PROSECUTION OF
RESPONDENT AS AN ADULT, AFTER JUVENILE COURT PROCEEDINGS WHICH RESULTED
IN A FINDING THAT RESPONDENT HAD VIOLATED A CRIMINAL STATUTE AND A
SUBSEQUENT FINDING THAT HE WAS UNFIT FOR TREATMENT AS A JUVENILE,
VIOLATED THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION. 

ON FEBRUARY 9, 1971, A PETITION WAS FILED IN THE SUPERIOR COURT OF
CALIFORNIA, COUNT OF LOS ANGELES, JUVENILE COURT, ALLEGING THAT
RESPONDENT, THEN 17 YEARS OF AGE, WAS A PERSON DESCRIBED BY CAL. WELF. 
& INST'NS CODE SEC. 602, /1/ IN THAT, ON OR ABOUT FEBRUARY 8, WHILE
ARMED WITH A DEADLY WEAPON, HE HAD COMMITTED ACTS WHICH, IF COMMITTED
BY AN ADULT, WOULD CONSTITUTE THE CRIME OF ROBBERY IN VIOLATION OF CAL.
PENAL CODE SEC. 211 (1970).  THE FOLLOWING DAY, A DETENTION HEARING WAS
HELD, AT THE CONCLUSION OF WHICH RESPONDENT WAS ORDERED DETAINED
PENDING A HEARING ON THE PETITION.  /2/ 

THE JURISDICTIONAL OR ADJUDICATORY HEARING WAS CONDUCTED ON MARCH 1,
PURSUANT TO CAL. WELF.  & INST'NS CODE SEC. 701.  /3/ AFTER TAKING
TESTIMONY FROM TWO PROSECUTION WITNESSES AND RESPONDENT, THE JUVENILE
COURT FOUND THAT THE ALLEGATIONS IN THE PETITION WERE TRUE AND THAT
RESPONDENT WAS A PERSON DESCRIBED BY SEC. 602, AND IT SUSTAINED THE
PETITION.  THE PROCEEDINGS WERE CONTINUED FOR A DISPOSITIONAL HEARING,
/4/ PENDING WHICH THE COURT ORDERED THAT RESPONDENT REMAIN DETAINED. 

AT A HEARING CONDUCTED ON MARCH 15, THE JUVENILE COURT INDICATED ITS
INTENTION TO FIND RESPONDENT "NOT . . . AMENABLE TO THE CARE, TREATMENT
AND TRAINING PROGRAM AVAILABLE THROUGH THE FACILITIES OF THE JUVENILE
COURT" UNDER CAL. WELF.  & INST'NS CODE SEC.707.  /5/  RESPONDENT'S
COUNSEL ORALLY MOVED "TO CONTINUE THE MATTER ON THE GROUND OF
SURPRISE," CONTENDING THAT RESONDENT "WAS NOT INFORMED THAT IT WAS
GOING TO BE A FITNESS HEARING."  THE COURT CONTINUED THE MATTER FOR ONE
WEEK, AT WHICH TIME, HAVING CONSIDERED THE REPORT OF THE PROBATION
OFFICER ASSIGNED TO THE CASE AND HAVING HEARD HER TESTIMONY, IT
DECLARED RESPONDENT "UNFIT FOR TREATMENT AS A JUVENILE," /6/ AND
ORDERED THAT HE BE PROSECUTED AS AN ADULT.  /7/ 

THEREAFTER, RESPONDENT FILED A PETITION FOR A WRIT OF HABEAS CORPUS
IN JUVENILE COURT, RAISING THE SAME DOUBLE JEOPARDY CLAIM NOW
PRESENTED.  UPON THE DENIAL OF THAT PETITION, RESPONDENT SOUGHT HABEAS
CORPUS RELIEF IN THE CALIFORNIA COURT OF APPEAL, SECOND APPELLATE
DISTRICT.  ALTHOUGH IT INITIALLY STAYED THE CRIMINAL PROSECUTION
PENDING AGAINST RESPONDENT, THAT COURT DENIED THE PETITION.  IN RE GARY
J., 17 CAL. APP.3D 704, 95 CAL. RPTR.  185 (1971).  THE SUPREME COURT
OF CALIFORNIA DENIED RESPONDENT'S PETITION FOR HEARING. 

AFTER A PRELIMINARY HEARING RESPONDENT WAS ORDERED HELD FOR TRIAL IN
SUPERIOR COURT, WHERE AN INFORMATION WAS SUBSEQUENTLY FILED ACCUSING
HIM OF HAVING COMMITTED ROBBERY, IN VIOLATION OF CAL. PENAL CODE SEC.
211, WHILE ARMED WITH A DEADLY WEAPON, ON OR ABOUT FEBRUARY 8, 1971. 
RESPONDENT ENTERED A PLEA OF NOT GUILTY, AND HE ALSO PLEADED THAT HE
HAD "ALREADY BEEN PLACED ONCE IN JEOPARDY AND CONVICTED OF THE OFFENSE
CHARGED, BY THE JUDGMENT OF THE SUPERIOR COURT OF THE COUNTY OF LOS
ANGELES, JUVENILE COURT, RENDERED . . . ON THE 1ST DAY OF MARCH,
1971."  APP.  47.  BY STIPULATION, THE CASE WAS SUBMITTED TO THE COURT
ON THE TRANSCRIPT OF THE PRELIMINARY HEARING.  THE COURT FOUND
RESPONDENT GUILTY OF ROBBERY IN THE FIRST DEGREE UNDER CAL. PENAL CODE
SEC. 211A (1970) AND ORDERED THAT HE BE COMMITTED TO THE CALIFORNIA
YOUTH AUTHORITY.  /8/ NO APPEAL WAS TAKEN FROM THE JUDGMENT OF
CONVICTION. 

ON DECEMBER 10, 1971, RESPONDENT, THROUGH HIS MOTHER AS GUARDIAN AD
LITEM, FILED THE INSTANT PETITION FOR A WRIT OF HABEAS CORPUS IN THE
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. 
IN HIS PETITION HE ALLEGED THAT HIS TRANSFER TO ADULT COURT PURSUANT TO
CAL. WELF.  & INST'NS CODE SEC. 707 AND SUBSEQUENT TRIAL THERE "PLACED
HIM IN DOUBLE JEOPARDY."  APP. 13.  THE DISTRICT COURT DENIED THE
PETITION, REJECTING RESPONDENT'S CONTENTION THAT JEOPARDY ATTACHED AT
HIS ADJUDICATORY HEARING.  IT CONCLUDED THAT THE "DISTINCTIONS BETWEEN
THE PRELIMINARY PROCEDURES AND HEARINGS PROVIDED BY CALIFORNIA LAW FOR
JUVENILES AND A CRIMINAL TRIAL ARE MANY AND APPARENT AND THE EFFORT OF
(RESPONDENT) TO RELATE THEM IS UNCONVINCING," AND THAT "EVEN ASSUMING
JEOPARDY ATTACHED DURING THE PRELIMINARY JUVENILE PROCEEDINGS . . . IT
IS CLEAR THAT NO NEW JEOPARDY AROSE BY THE JUVENILE PROCEEDING SENDING
THE CASE TO THE CRIMINAL COURT."  343 F.SUPP.  690, 692 (1972). 

THE COURT OF APPEALS REVERSED, CONCLUDING THAT APPLYING DOUBLE
JEOPARDY PROTECTION TO JUVENILE PROCEEDINGS WOULD NOT "IMPEDE THE
JUVENILE COURTS IN CARRYING OUT THEIR BASIC GOAL OF REHABILITATING THE
ERING YOUTH," AND THAT THE CONTRARY RESULT MIGHT "DO IRREPARABLE HARM
TO OR DESTROY THEIR CONFIDENCE IN OUR JUDICIAL SYSTEM."  THE COURT
THEREFORE HELD THAT THE DOUBLE JEOPARDY CLAUSE "IS FULLY APPLICABLE TO
JUVENILE COURT PROCEEDINGS."  497 F.2D 1160, 1165 (CA9 1974). 

TURNING TO THE QUESTION WHETHER THERE HAD BEEN A CONSTITUTIONAL
VIOLATION IN THIS CASE, THE COURT OF APPEALS POINTED TO THE POWER OF
THE JUVENILE COURT TO "IMPOSE SEVERE RESTRICTIONS UPON THE JUVENILE'S
LIBERTY," IBID., IN SUPPORT OF ITS CONCLUSION THAT JEOPARDY ATTACHED IN
RESPONDENT'S ADJUDICATORY HEARING.  /9/ IT REJECTED PETITIONER'S
CONTENTION THAT NO NEW JEOPARDY ATTACHED WHEN RESPONDENT WAS REFERRED
TO SUPERIOR COURT AND SUBSEQUENTLY TRIED AND CONVICTED, FINDING
"CONTINUING JEOPARDY" PRINCIPLES ADVANCED BY PETITIONER INAPPLICABLE. 
FINALLY, THE COURT OF APPEALS OBSERVED THAT ACCEPTANCE OF PETITIONER'S
POSITION WOULD "ALLOW THE PROSECUTION TO REVIEW IN ADVANCE THE
ACCUSED'S DEFENSE AND, AS HERE, HEARHIM TESTIFY ABOUT THE CRIME
CHARGED," A PROCEDURE IT FOUND OFFENSIVE TO "OUR CONCEPTS OF BASIC,
EVEN-HANDED FAIRNESS."  THE COURT THEREFORE HELD THAT ONCE JEOPARDY
ATTACHED AT THE ADJUDICATORY HEARING, A MINOR COULD NOT BE RETRIED AS
AN ADULT OR A JUVENILE "ABSENT SOME EXCEPTION TO THE DOUBLE JEOPARDY
PROHIBITION," AND THAT THERE "WAS NONE HERE."  ID., AT 1168. 

WE GRANTED CERTIORARI BECAUSE OF A CONFLICT BETWEEN COURTS OF
APPEALS AND THE HIGHEST COURTS OF A NUMBER OF STATES ON THE ISSUE
PRESENTED IN THIS CASE AND SIMILAR ISSUES AND BECAUSE OF THE IMPORTANCE
OF FINAL RESOLUTION OF THE ISSUE TO THE ADMINISTRATION OF THE JUVENILE
COURT SYSTEM. 

        I 

THE PARTIES AGREE THAT, FOLLOWING HIS TRANSFER FROM JUVENILE COURT,
AND AS A DEFENDANT TO A FELONY INFORMATION, RESPONDENT WAS ENTITLED TO
THE FULL PROTECTION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT, AS APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT. 
SEE BENTON V. MARYLAND, 395 U.S. 784 (1969).  IN ADDITION, THEY AGREE
THAT RESPONDENT WAS PUT IN JEOPARDY BY THE PROCEEDINGS ON THAT
INFORMATION, WHICH RESULTED IN AN ADJUDICATION THAT HE WAS GUILTY OF
ROBBERY IN THE FIRST DEGREE AND IN A SENTENCE OF COMMITMENT.  FINALLY,
THERE IS NO DISPUTE THAT THE PETITION FILED IN JUVENILE COURT AND THE
INFORMATION FILED IN SUPERIOR COURT RELATED TO THE "SAME OFFENCE"
WITHIN THE MEANING OF THE CONSTITUTIONAL PROHIBITION.  THE POINT OF
DISAGREEMENT BETWEEN THE PARTIES, AND THE QUESTION FOR OUR DECISION, IS
WHETHER, BY REASON OF THE PROCEEDINGS IN JUVENILE COURT, RESPONDENT WAS
"TWICE PUT IN JEOPARDY." 

        II 

JEOPARDY DENOTES RISK.  IN THE CONSTITUTIONAL SENSE, JEOPARDY
DESCRIBES THE RISK THAT IS TRADITIONALLY ASSOCIATED WITH A CRIMINAL
PROSECUTION.  SEE PRICE V. GEORGIA, 398 U.S. 323, 326, 329 (1970);
SERFASS V. UNITED STATES, 420 U.S. 377, 387 - 389 (1975).  ALTHOUGH THE
CONSTITUTIONAL LANGUAGE, "JEOPARDY OF LIFE OR LIMB," SUGGESTS
PROCEEDINGS IN WHICH ONLY THE MOST SERIOUS PENALTIES CAN BE IMPOSED,
THE CLAUSE HAS LONG BEEN CONSTRUED TO MEAN SOMETHING FAR BROADER THAN
ITS LITERAL LANGUAGE.  SEE EX PARTE LANGE, 18 WALL.  163, 170 - 173
(1874).  /10/ AT THE SAME TIME, HOWEVER, WE HAVE HELD THAT THE RISK TO
WHICH THE CLAUSE REFERS IS NOT PRESENT IN PROCEEDINGS THAT ARE NOT
"ESSENTIALLY CRIMINAL."  HELVERING V. MITCHELL, 303 U.S. 391, 398
(1938).  SEE UNITED STATES EX REL. MARCUS V. HESS, 317 U.S. 537 (1943);
ONE LOT EMERALD CUT STONES V. UNITED STATES, 409 U.S. 232 (1972).  SEE
ALSO J. SIGLER, DOUBLE JEOPARDY 60 62 (1969). 

ALTHOUGH THE JUVENILE COURT SUSTEM HAD ITS GENESIS IN THE DESIRE TO
PROVIDE A DISTINCTIVE PROCEDURE AND SETTING TO DEAL WITH THE PROBLEMS
OF YOUTH, INCLUDING THOSE MANIFESTED BY ANTISOCIAL CONDUCT, OUR
DECISIONS IN RECENT YEARS HAVE RECOGNIZED THAT THERE IS A GAP BETWEEN
THE ORIGINALLY BENIGN CONCEPTION OF THE SYSTEM AND ITS REALITIES.  WITH
THE EXCEPTION OF MC KEIVER V. PENNSYLVANIA, 403 U.S. 528 (1971), THE
COURT'S RESPONSE TO THAT PERCEPTION HAS BEEN TO MAKE APPLICABLE IN
JUVENILE PROCEEDINGS CONSTITUTIONAL GUARANTEES ASSOCIATED WITH
TRADITIONAL CRIMINAL PROSECUTIONS.  IN RE GAULT, 387 U.S. 1 (1967); IN
RE WINSHIP, 397 U.S. 358 (1970).  IN SO DOING THE COURT HAS EVINCED
AWARENESS OF THE THREAT WHICH SUCH A PROCESS REPRESENTS TO THE EFFORTS
OF THE JUVENILE COURT SYSTEM, FUNCTIONING IN A UNIQUE MANNER, TO
AMELIORATE THE HARSHNESS OF CRIMINAL JUSTICE WHEN APPLIED TO YOUTHFUL
OFFENDERS.  THAT THE SYSTEM HAS FALLEN SHORT OF THE HIGH EXPECTATIONS
OF ITS SPONSORS IN NO WAY DETRACTS FROM THE BROAD SOCIAL BENEFITS
SOUGHT OR FROM THOSE BENEFITS THAT CAN SURVIVE CONSTITUTIONAL
SCRUTINY. 

WE BELIEVE IT IS SIMPLY TOO LATE IN THE DAY TO CONCLUDE, AS DID THE
DISTRICT COURT IN THIS CASE, THAT A JUVENILE IS NOT PUT IN JEOPARDY AT
A PROCEEDING WHOSE OBJECT IS TO DETERMINE WHETHER HE HAS COMMITTED ACTS
THAT VIOLATE A CRIMINAL LAW AND WHOSE POTENTIAL CONSEQUENCES INCLUDE
BOTH THE STIGMA INHERENT IN SUCHA DETERMINATION AND THE DEPRIVATION OF
LIBERTY FOR MANY YEARS.  /11/ FOR IT IS CLEAR UNDER OUR CASES THAT
DETERMINING THE RELEVANCE OF CONSTITUTIONAL POLICIES, LIKE DETERMINING
THE APPLICABILITY OF CONSTITUTIONAL RIGHTS, IN JUVENILE PROCEEDINGS,
REQUIRES THAT COURTS ESCHEW "THE 'CIVIL' LABEL-OF-CONVENIENCE WHICH HAS
BEEN ATTACHED TO JUVENILE PROCEEDINGS," IN RE GAULT, SUPRA, AT 50, AND
THAT "THE JUVENILE PROCESS . . . BE CANDIDLY APPRAISED."  387 U.S., AT
21.  SEE IN RE WINSHIP, SUPRA, AT 365 - 366. 

AS WE HAVE OBSERVED, THE RISK TO WHICH THE TERM JEOPARDY REFERS IS
THAT TRADITIONALLY ASSOCIATED WITH "ACTIONS INTENDED TO AUTHORIZE
CRIMINAL PUNISHMENT TO VINDICATE PUBLIC JUSTICE."  UNITED STATES EX
REL. MARCUS V. HESS, SUPRA, AT 548 - 549.  BECAUSE OF ITS PURPOSE AND
POTENTIAL CONSEQUENCES, AND THE NATURE AND RESOURCES OF THE STATE, SUCH
A PROCEEDING IMPOSES HEAVY PRESSURES AND BURDENS--PSYCHOLOGICAL,
PHYSICAL, AND FINANCIAL--ON A PERSON CHARGED.  THE PURPOSE OF THE
DOUBLE JEOPARDY CLAUSE IS TO REQUIRE THA THE BE SUBJECT TO THE
EXPERIENCE ONLY ONCE "FOR THE SAME OFFENCE."  SEE GREEN V. UNITED
STATES, 355 U.S. 184, 187 (1957); PRICE V. GEORGIA, 398 U.S., AT 331;
UNITED STATES V. JORN, 400 U.S. 470, 479 (1971) (OPINION OF HARLAN,
J.). 

IN RE GAULT, SUPRA, AT 36, THIS COURT CONCLUDED THAT, FOR PURPOSES
OF THE RIGHT TO COUNSEL, A "PROCEEDING WHERE THE ISSUE IS WHETHER THE
CHILD WILL BE FOUND TO BE "DELINQUENT' AND SUBJECTED TO THE LOSS OF HIS
LIBERTY FOR YEARS IS COMPARABLE IN SERIOUSNESS TO A FELONY
PROSECUTION."  SEE IN RE WINSHIP, SUPRA, AT 306.  THE COURT STATED THAT
THE TERM "DELIQUENT" HAD "COME TO INVOLVE ONLY SLIGHTLY LESS STIGMA
THAN THE TERM 'CRIMINAL' APPLIED TO ADULTS," IN RE GAULT, SUPRA, AT 24;
SEE IN RE WINSHIP, SUPRA, AT 367, AND THAT, FOR PURPOSES OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION, "COMMITTMENT IS A DEPRIVATION OF
LIBERTY.  IT IS INCARCERATION AGAINST ONE'S WILL, WHETHER IT IS CALLED
'CRIMINAL' OR 'CIVIL.'"  IN RE GAULT, SUPRA, AT 50.  SEE 387 U.S., AT
27; IN RE WINSHIP, SUPRA, AT 367.  /12/ 

THUS, IN TERMS OF POTENTIAL CONSEQUENCES, THERE IS LITTLE TO
DISTINGUISH AN ADJUDICATORY HEARING SUCH AS WAS HELD IN THIS CASE FROM
A TRADITIONAL CRIMINALPROSECUTION.  FOR THAT REASON, IT ENGENDERS
ELEMENTS OF "ANXIETY AND INSECURITY" IN A JUVENILE, AND IMPOSES A
"HEAVY PERSONAL STRAIN."  SEE GREEN V. UNITED STATES, SUPRA, AT 187;
UNITED STATES V. JORN, SUPRA, AT 479; SNYDER, THE IMPACT OF THE
JUVENILE COURT HEARING ON THE CHILD, 17 CRIME & DELINQUENCY 180
(1971).  AND WE CAN EXPECT THAT, SINCE OUR DECISIONS IMPLEMENTING
FUNDAMENTAL FARINESS IN THE JUVENILE COURT SYSTEM, HEARINGS HAVE BEEN
PROLONGED, AND SOME OF THE BURDENS INCIDENT TO A JUVENILE'S DEFENSE
INCREASED, AS THE SYSTEM HAS ASSIMILATED THE PROCESS THEREBY IMPOSED. 
SEE NOTE, DOUBLE JEOPARDY AND THE WAIVER OF JURISDICTION IN
CALIFORNIA'S JUVENILE COURTS, 24 STAN.  L.REV.  847, 902 N. 138
(1972).  CF. CANON & KOLSON, RURAL COMPLIANCE WITH GAULT:  KENTUCKY, A
CASE STUDY, 10 J. FAM.  L. 300, 320 - 326 (1971). 

WE DEAL HERE, NOT WITH "THE FORMALITIES OF THE CRIMINAL ADJUDICATIVE
PROCESS," MC KEIVER V. PENNSYLVANIA, 403 U.S., AT 551 (OPINION OF
BLACKMUN, J.), BUT WITH AN ANALYSIS OF AN ASPECT OF THE JUVENILE COURT
SYSTEM IN TERMS OF THE KIND OF RISK TO WHICH JEOPARDY REFERS.  UNDER
OUR DECISIONS WE CAN FIND NO PERSUASIVE DISTINCTION IN THAT REGARD
BETWEEN THE PROCEEDING CONDUCTED IN THIS CASE PURSUANT TO CAL. WELF.  &
INST'NS CODE SEC. 701 AND A CRIMINAL PROSECUTION, EACH OF WHICH IS
DESIGNED "TO VINDICATE (THE) VERY VITAL INTEREST IN ENFORCEMENT OF
CRIMINAL LAWS."  UNITED STATES V. JORN, SUPRA, AT 479.  WE THEREFORE
CONCLUDE THAT RESPONDENT WAS PUT IN JEOPARDY AT THE ADJUDICATORY
HEARING.  JEOPARDY ATTACHED WHEN RESPONDENT WAS "PUT TO TRIAL BEFORE
THE TRIER OF THE FACTS," IBID., THAT IS, WHEN THE JUVENILE COURT, AS
THE TRIER OF THE FACTS, BEGAN TO HEAR EVIDENCE.  SEE SERFASS V. UNITED
STATES, 420 U.S., AT 388.  /13/             III     PETITIONER ARGUES
THAT, EVEN ASSUMING JEOPARDY ATTACHED AT RESPONDENT'S ADJUDICATORY
HEARING, THE PROCEDURE BY WHICH HE WAS TRANSFERRED FROM JUVENILE COURT
AND TRIED ON A FELONY INFORMATION IN SUPERIOR COURT DID NOT VIOLATE THE
DOUBLE JEOPARDY CLAUSE.  THE ARGUMENT IS SUPPORTED BY TWO DISCTINCT,
BUT IN THIS CASE OVERLAPPING, LINES OF ANALYSIS.  FIRST, PETITIONER
REASONS THAT THE PROCEDURE VIOLATED NONE OF THE POLICIES OF THE DOUBLE
JEOPARDY CLAUSE OR THAT, ALTERNATIVELY, IT SHOULD BE UPHELD BY ANALOGY
TO THOSE CASES WHICH PERMIT RETRIAL OF AN ACCUSED WHO HAS OBTAINED
REVERSAL OF A CONVICTION ON APPEAL.  SECOND, POINTING TO THIS COURT'S
CONCERN FOR "THE JUVENILE COURT'S ASSUMED ABILITY TO FUNCTION IN A
UNIQUE MANNER," MC KEIVER V. PENNSYLVANIA, SUPRA, AT 547, PETITIONER
URGES THAT, SHOULD WE CONCLUDE TRADITIONAL PRINCIPLES "WOULD OTHERWISE
BAR A TRANSFER TO ADULT COURT AFTER A DELINQUENCY ADJUDICATION," WE
SHOULD AVOID THAT RESULT HERE BECAUSE IT "WOULD DIMINISH THE
FLEXIBILITY AND INFORMALITY OF JUVENILE COURT PROCEEDINGS WITHOUT
CONFERRING ANY ADDITIONAL DUE PROCESS BENEFITS UPON JUVENILES CHARGED
WITH DELINQUENT ACTS." 

        A 

WE CANNOT AGREE WITH PETITIONER THAT THE TRIAL OF RESPONDENT IN
SUPERIOR COURT ON AN INFORMATION CHARGING THE SAME OFFENSE AS THAT FOR
WHICH HE HAD BEEN TRIED IN JUVENILE COURT VIOLATED NONE OF THE POLICIES
OF THE DOUBLE JEOPARDY CLAUSE.  FOR, EVEN ACCEPTING PETITIONER'S
PREMISE THAT RESPONDENT "NEVER FACED THE RISK OF MORE THAN ONE
PUNISHMENT," WE HAVE POINTED OUT THAT "THE DOUBLE JEOPARDY CLAUSE... IS
WRITTEN IN TERMS OF POTENTIAL OR RISK OF TRIAL AND CONVICTION, NOT
PUNISHMENT."  PRICE V. GEORGIA, 398 U.S., AT 329.  (EMPHASIS ADDED.) 
AND WE HAVE RECENTLY NOTED: 

     " THE POLICY OF AVOIDING MULTIPLE TRIALS HAS BEEN REGARDED AS

  SO IMPORTANT THAT EXCEPTIONS TO THE PRINCIPLE HAVE BEEN ONLY

  GRUDGINGLY ALLOWED.  INITIALLY, A NEW TRIAL WAS THOUGHT TO BE

  UNAVAILABLE AFTER APPEAL, WHETHER REQUESTED BY THE PROSECUTION OR

  THE DEFENDANT.  . . . IT WAS NOT UNTIL 1896 THAT IT WAS MADE
CLEAR

  THAT A DEFENDANT COULD SEEK A NEW TRIAL AFTER CONVICTION, EVEN

  THOUGH THE GOVERNMENT ENJOYED NO SIMILAR RIGHT.  . . . FOLLOWING

  THE SAME POLICY, THE COURT HAS GRANTED THE GOVERNMENT THE RIGHT

  TO RETRY A DEFENDANT AFTER A MISTRIAL ONLY WHERE 'THERE IS A

MANIFEST NECESSITY FOR THE ACT, OR THE ENDS OF PUBLIC JUSTICE

  WOULD OTHERWISE BE DEFEATED.'  UNITED STATES V. PEREZ, 9 WHEAT. 

  579, 580 (1824)."  UNITED STATES V. WILSON, 420 U.S. 332, 343 -

  344 (1975).  (FOOTNOTE OMITTED.) 

RESPONDENT WAS SUBJECTED TO THE BURDEN OF TWO TRIALS FOR THE SAME
OFFENSE; HE WAS TWICE PUT TO THE TASK OF MARSHALING HIS RESOURCES
AGAINST THOSE OF THE STATE, TWICE SUBJECTED TO THE "HEAVY PERSONAL
STRAIN" WHICH SUCH AN EXPERIENCE REPRESENTS.  UNITED STATES V. JORN,
400 U.S., AT 479.  WE TURN, THEREFORE, TO INQUIRE WHETHER EITHER
TRADITIONAL PRINCIPLES OR "THE JUVENILE COURT'S ASSUMED ABILITY TO
FUNCTION IN A UNIQUE MANNER," MC KEIVER V. PENNSYLVANIA, SUPRA, AT 547,
SUPPORTS AN EXCEPTION TO THE "CONSTITUTIONAL POLICY OF FINALITY" TO
WHICH RESPONDENT WOULD OTHERWISE BE ENTITLED.  UNITED STATES V. JORN,
SUPRA, AT 479. 

       B 

IN DENYING RESPONDENT'S PETITIONS FOR WRITS OF HABEAS CORPUS, THE
CALIFORNIA COURT OF APPEAL FIRST, AND THE UNITED STATES DISTRICT COURT
LATER, CONCLUDED THAT NO NEW JEOPARDY AROSE AS A RESULT OF HIS TRANSFER
FROM JUVENILE COURT AND TRIAL IN SUPERIOR COURT.  SEE IN RE GARY J., 17
CAL. APP.3D, AT 710, 95 CAL. RPTR., AT 189; 343 F.SUPP., AT 692.  IN
THE VIEW OF THOSE COURTS, THE JEOPARDY THAT ATTACHES AT AN ADJUDICATORY
HEARING CONTINUES UNTIL THERE IS A FINAL DISPOSITION OF THE CASE UNDER
THE ADULT CHARGE.  SEE ALSO IN RE JUVENILE,-- MASS.--, 306 N.E.2D 822
(1974).  CF. BRYAN V. SUPERIOR COURT, 7 CAL.3D 575, 498 P.2D 1079
(1972), CERT. DENIED, 410 U.S. 944 (1973). 

THE PHRASE "CONTINUING JEOPARDY" DESCRIBES BOTH A CONCEPT AND A
CONCLUSION.  AS ORIGINALLY ARTICULATED BY MR. JUSTICE HOLMES IN HIS
DISSENT IN KEPNER V. UNITED STATES, 195 U.S. 100, 134 - 137 (1904), THE
CONCEPT HAS PROVED AN INTERESTING MODEL FOR COMPARISON WITH THE SYSTEM
OF CONSTITUTIONAL PROTECTION WHICH THE COURT HAS IN FACT DERIVED FROM
THE RATHER AMBIGUOUS LANGUAGE AND HISTORY OF THE DOUBLE JEOPARDY
CLAUSE.  SEE UNITED STATES V. WILSON, SUPRA, AT 351 - 352.  HOLMES'
VIEW HAS "NEVER BEEN ADOPTED BY A MAJORITY OF THIS COURT."  UNITED
STATES V. JENKINS, 420 U.S. 358, 369 (1975). 

THE CONCLUSION, "CONTINUING JEOPARDY," AS DISTINGUISHED FROM THE
CONCEPT, HAS OCCASIONALLY BEEN USED TO EXPLAIN WHY AN ACCUSED WHO HAS
SECURED THE REVERSAL OF A CONVICTION ON APPEAL MAY BE RETRIED FOR THE
SAME OFFENSE.  SEE GREEN V. UNITED STATES, 355 U.S., AT 189; PRICE V.
GEORGIA, 398 U.S., AT 326; UNITED STATES V. WILSON, SUPRA, AT 343 -
344, N. 11.  PROBABLY A MORE SATISFACTORY EXPLANATION LIES IN ANALYSIS
OF THE RESPECTIVE INTERESTS INVOLVED.  SEE UNITED STATES V. TATEO, 177
U.S. 463, 465 - 466 (1964); PRICE V. GEORGIA, SUPRA, 329 N. 4; UNITED
STATES V. WILSON, SUPRA.  SIMILARLY, THE FACT THAT THE PROCEEDINGS
AGAINST RESPONDENT HAD NOT "RUN THEIR FULL COURSE," PRICE V. GEORGIA,
SUPRA, AT 326, WITHIN THE CONTEMPLATION OF THE CALIFORNIA WELFARE AND
INSTITUTIONS CODE, AT THE TIME OF TRANSFER, DOES NOT SATISFACTORILY
EXPLAIN WHY RESPONDENT SHOULD BE DEPRIVED OF THE CONSTITUTIONAL
PROTECTION AGAINST A SECOND TRIAL.  IF THERE IS TO BE AN EXCEPTION TO
THAT PROTECTION IN THE CONTEXT OF THE JUVENILE COURT SYSTEM, IT MUST BE
JUSTIFIED BY INTERESTS OF SOCIETY, REFLECTED IN THAT UNIQUE
INSTITUTION, OR OF JUVENILES THEMSELVES, OF SUFFICIENT SUBSTANCE TO
RENDER TOLERABLE THE COSTS AND BURDENS, NOTED EARLIER, WHICH THE
EXCEPTION WILL ENTAIL IN INDIVIDUAL CASES. 

        C 

THE POSSIBILITY OF TRANSFER FROM JUVENILE COURT TO A COURT OF GENERAL
CRIMINAL JURISDICTION IS A MATTER OF GREAT SIGNIFICANCE TO THE
JUVENILE.  SEE KENT V. UNITED STATES, 383 U.S. 541 (1966).  AT THE SAME
TIME, THERE APPEARS TO BE WIDELY SHARED AGREEMENT THAT NOT ALL
JUVENILES CAN BENEFIT FROM THE SPECIAL FEATURES AND PROGRAMS OF THE
JUVENILE COURT SYSTEM AND THAT A PROCEDURE FOR TRANSFER TO AN ADULT
COURT SHOULD BE AVAILABLE.  SEE, E.G., NATIONAL ADVISORY COMMISSION ON
CRIMINAL JUSTICE STANDARDS AND GOLAS, COURTS, COMMENTARY TO STANDARD
14.3, PP. 300 - 301 (1973).  THIS GENERAL AGREEMENT IS REFLECTED IN THE
FACT THAT AN OVERWHELMING MAJORITY OF JURISDICTIONS PERMITS TRANSFER IN
CERTAIN CIRCUMSTANCES.  /14/ AS MIGHT BE EXPECTED, THE STATUTORY
PROVISIONS DIFFER IN NUMEROUS DETAILS.  WHATEVER THEIR DIFFERENCES,
HOWEVER, SUCH TRANSFER PROVISIONS REPRESENT AN ATTEMPT TO IMPART TO THE
JUVENILE COURT SYSTME THE FLEXIBILITY NEEDED TO DEAL WITH YOUTHFUL
OFFENDERS WHO CANNOT BENEFIT FROM THE SPECIALIZED GUIDANCE AND
TREATMENT CONTEMPLATED BY THE SYSTEM. 

WE DO NOT AGREE WITH PETITIONER THAT GIVING RESPONDENT THE
CONSTITUTIONAL PROTECTION AGAINST MULTIPLE TRIALS IN THIS CONTEXT WILL
DIMINISH FLEXIBILITY AND INFORMALITY TO THE EXTENT THAT THOSE QUALITIES
RELATE UNIQUELY TO THE GOALS OF THE JUVENILE COURT SYSTEM.  /15/ WE
AGREE THAT SUCH A HOLDING WILL REQUIRE, IN MOST CASES, THAT THE
TRANSFER DECISION BE MADE PRIOR TO AN ADJUDICATORY HEARING.  TO THE
EXTENT THAT EVIDENCE CONCERNING THE ALLEGED OFFENSE IS CONSIDERED
RELEVANT, /16/ IT MAY BE THAT, IN THOSE CASES WHERE TRANSFER IS
CONSIDERED AND REJECTED, SOME ADDED BURDEN WILL BE IMPOSED ON THE
JUVENILE COURTS BY REASON OF DUPLICATIVE PROCEEDINGS.  FINALLY, THE
NATURE OF THE EVIDENCE CONSIDERED AT A TRANSFER HEARING MAY IN SOME
STATES REQUIRE THAT, IF TRANSFER IS REJECTED, A DIFFERENT JUDGE PRESIDE
AT THE ADJUDICATORY HEARING.  /17/ 

WE RECOGNIZE THAT JUVENILE COURTS, PERHAPS EVEN MORE THAN MOST
COURTS, SUFFER FROM THE PROBLEMS CREATED BY SPIRALING CASELOADS
UNACCOMPANIED BY ENLARGED RESOURCES AND MANPOWER.  SEE PRESIDENT'S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE
REPORT:  JUVENILE DELINQUENCY AND YOUTH CRIME 7 - 8 (1967).  AND COURTS
SHOULD BE RELUCTANT TO IMPOSE ON THE JUVENILE COURT SYSTEM ANY
ADDITIONAL REQUIREMENTS WHICH COULD SO STRAIN ITS RESOURCES AS TO
ENDANGER ITS UNIQUE FUNCTIONS.  HOWEVER, THE BURDENS THAT PETITIONER
ENVISIONS APPEAR TO US NEITHER QUALITATIVELY NOR QUANTITATIVELY
SUFFICIENT TO JUSTIFY A DEPARTURE IN THIS CONTEXT FROM THE FUNDAMENTAL
PROHIBITION AGAINST DOUBLE JEOPARDY. 

A REQUIREMENT THAT TRANSFER HEARINGS BE HELD PRIOR TO ADJUDICATORY
HEARINGS AFFECTS NOT AT ALL THE NATURE OF THE LATTER PROCEEDINGS.  MORE
SIGNIFICANT, SUCH A REQUIREMENT NEED NOT AFFECT THE QUALITY OF
DECISIONMAKING AT TRANSFER HEARINGS THEMSELVES.  IN KENT V. UNITED
STATES, 383 U.S., AT 562, THE COURT HELD THAT HEARINGS UNDER THE
STATUTE THERE INVOLVED "MUST MEASURE UP TO THE ESSENTIALS OF DUE
PROCESS AND FAIR TREATMENT."  HOWEVER, THE COURT HAS NEVER ATTEMPTED TO
PRESCRIBE CRITERIA FOR, OR THE NATURE AND QUANTUM OF EVIDENCE THAT MUST
SUPPORT, A DECISION TO TRANSFER A JUVENILE FOR TRIAL IN ADULT COURT. 
WE REQUIRE ONLY THAT, WHATEVER THE RELEVANT CRITERIA, AND WHATEVER THE
EVIDENCE DEMANDED, A STATE DETERMINE WHETHER IT WANTS TO TREAT A
JUVENILE WITHIN THE JUVENILE COURT SYSTEM BEFORE ENTERING UPON A
PROCEEDING THAT MAY RESULT IN AN ADJUDICATION THAT HE HAS VIOLATED A
CRIMINAL LAW AND IN A SUBSTANTIAL DEPRIVATION OF LIBERTY, RATHER THAN
SUBJECT HIM TO THE EXPENSE, DELAY, STRAIN, AND EMBARRASSMENT OF TWO
SUCH PROCEEDINGS.  /18/ 

MOREOVER, WE ARE NOT PERSUADED THAT THE BURDENS PETITIONER ENVISIONS
WOULD POSE A SIGNIFICANT PROBLEM FOR THE ADMINISTRATION OF THE JUVENILE
COURT SYSTEM.  THE LARGE NUMBER OF JURISDICTIONS THAT PRESENTLY REQUIRE
THAT THE TRANSFER DECISION BE MADE PRIOR TO AN ADJUDICATORY HEARING,
/19/ AND THE ABSENCE OF ANY INDICATION THAT THE JUVENILE COURTS IN
THOSE JURISDICTIONS HAVE NOT BEEN ABLE TO PERFORM THEIR TASK WITHIN
THAT FRAMEWORK, SUGGEST THE CONTRARY.  THE LIKELIHOOD THAT IN MANY
CASES THE LACK OF NEED OR BASIS FOR A TRANSFER HEARING CAN BE
RECOGNIZED PROMPTLY REDUCES THE NUMBER OF CASES IN WHICH A COMMITMENT
OF RESOURCES IS NECESSARY.  IN ADDITION, WE HAVE NO REASON TO BELIEVE
THAT THE RESOURCES AVAILABLE TO THOSE WHO RECOMMEND TRANSFER OR
PARTICIPATE IN THE PROCESS LEADING TO TRANSFER DECISIONS ARE INADEQUATE
TO ENABLE THEM TO GATHER THE INFORMATION RELEVANT TO INFORMED DECISION
PRIOR TO AN ADJUDICATORY HEARING.  SEE GENERALLY STATE V. HALVERSON,
192 N.W.2D 765, 769 (IOWA 1971); RUDSTEIN, DOUBLE JEOPARDY IN JUVENILE
PROCEEDINGS, 14 WM. & MARY L. REV. 266, 305 - 306 (1972); NOTE, 24
STAN.  L. REV., AT 897 - 899.  /20/ 

TO THE EXTENT THAT TRANSFER HEARINGS HELD PRIOR TO ADJUDICATION
RESULT IN SOME DUPLICATION OF EVIDENCE IF TRANSFER IS REJECTED, THE
BURDEN ON JUVENILE COURTS WILL TEND TO BE OFFSET SOMEWHAT BY THE CASES
IN WHICH, BECAUSE OF TRANSFER, NO FURTHER PROCEEDINGS IN JUVENILE COURT
ARE REQUIRED.  MOREOVER, WHEN TRANSFER HAS PREVIOUSLY BEEN REJECTED,
JUVENILES MAY WELL BE MORE LIKELY TO ADMIT THE COMMISSION OF THE
OFFENSE CHARGED, THEREBY OBVIATING THE NEED FOR ADJUDICATORY HEARINGS,
THAN IF TRANSFER REMAINS A POSSIBILITY.  FINALLY, WE NOTE THAT THOSE
STATES WHICH PRESENTLY REQUIRE A DIFFERENT JUDGE TO PRESIDE AT AN
ADJUDICATORY HEARING IF TRANSFER IS REJECTED ALSO PERMIT WAIVER OF THAT
REQUIREMENT.  /21/ WHERE THE REQUIREMENT IS NOT WAIVED, IT IS DIFFICULT
TO SEE A SUBSTANTIAL STRAIN ON JUDICIAL RESOURCES.  SEE NOTE, 24 STAN. 
L.REV., AT 900 - 901. 

QUITE APART FROM OUR CONCLUSIONS WITH RESPECT TO THE BURDENS ON THE
JUVENILE COURT SYSTEM ENVISIONED BY PETITIONER, WE ARE PERSUADED THAT
TRANSFER HEARINGS PRIOR TO ADJUDICATION WILL AID THE OBJECTIVES OF THAT
SYSTEM.  WHAT CONCERNS US HERE IS THE DILEMMA THAT THE POSSIBILITY OF
TRANSFER AFTER AN ADJUDICATORY HEARING PRESENTS FOR A JUVENILE, A
DILEMMA TO WHICH THE COURT OF APPEALS ALLUDED.  SEE SUPRA, AT 527. 
BECAUSE OF THAT POSSIBILITY, A JUVENILE, THOUGHT TO BE THE BENEFICIARY
OF SPECIAL CONSIDERATION, MAY IN FACT SUFFER SUBSTANTIAL
DISADVANTAGES.  IF HE APPEARS UNCOOPERATIVE, HE RUNS THE RISK OF AN
ADVERSE ADJUDICATION, AS WELL AS OF AN UNFAVORABLE DISPOSITIONAL
RECOMMENDATION.  /22/ IF, ON THE OTHER HAND, HE IS COOPERATIVE, HE RUNS
THE RISK OF PREJUDICING HIS CHANCES IN ADULT COURT IF TRANSFER IS
ORDERED.  WE REGARD A PROCEDURE THAT RESULTS IN SUCH A DILEMMA AS AT
ODDS WITH THE GOAL THAT, TO THE EXTENT FUNDAMENTAL FAIRNESS PERMITS,
ADJUDICATORY HEARINGS BE INFORMAL AND NONADVERSARY.  SEE IN RE GAULT,
387 U.S., AT 25 - 27; IN RE WINSHIP, 397 U.S., AT 366 - 367; MC KEIVER
V. PENNSYLVANIA, 403 U.S., AT 534, 550.  KNOWLEDGE OF THE RISK OF
TRANSFER AFTER AN ADJUDICATORY HEARING CAN ONLY UNDERMINE THE POTENTIAL
FOR INFORMALITY AND COOPERATION WHICH WAS INTENDED TO BE THE HALLMARK
OF THE JUVENILE COURT SYSTEM.  RATHER THAN CONCERNING THEMSELVES WITH
THE MATTER AT HAND, ESTABLISHING INNOCENCE OR SEEKING A DISPOSITION
BEST SUITED TO INDIVIDUAL CORRECTIONAL NEEDS, THE JUVENILE AND HIS
ATTORNEY ARE PRESSED INTO A POSTURE OF ADVERSARY WARINESS THAT IS
CONDUCIVE TO NEITHER.  CF. KAY & SEGAL, THE ROLE OF THE ATTORNEY IN
JUVENILE COURT PROCEEDINGS:  A NON-POLAR APPROACH, 61 GEO. L.J. 1401
(1973); CARR, THE EFFECT OF THE DOUBLE JEOPARDY CLAUSE ON JUVENILE
PROCEEDINGS, 6 U. TOL.  L. REV. 1, 52 - 54 (1974).  /23/
IV 

WE HOLD THAT THE PROSECUTION OF RESPONDENT IN SUPERIOR COURT, AFTER
AN ADJUDICATORY PROCEEDING IN JUVENILE COURT, VIOLATED THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT, AS APPLIED TO THE STATES
THROUGH THE FOURTEENTH AMENDMENT.  THE MANDATE OF THE COURT OF APPEALS,
WHICH WAS STAYED BY THAT COURTPENDING OUR DECISION, DIRECTS THE
DISTRICT COURT "TO ISSUE A WRIT OF HABEAS CORPUS DIRECTING THE STATE
COURT, WITHIN 60 DAYS, TO VACATE THE ADULT CONVICTION OF JONES AND
EITHER SET HIM FREE OR REMAND HIM TO THE JUVENILE COURT FOR
DISPOSITION."  SINCE RESPONDENT IS NO LONGER SUBJECT TO THE
JURISDICTION OF THE CALIFORNIA JUVENILE COURT, WE VACATE THE JUDGMENT
AND REMAND THE CASE TO THE COURT OF APPEALS FOR SUCH FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION AS MAY BE APPROPRIATE IN THE
CIRCUMSTANCES. 

                                  SO ORDERED. 

/1/ AS OF THE DATE OF FILING OF THEPETITION IN THIS CASE, CAL.
WELF.  & INST'NS CODE SEC. 602 (1966) PROVIDED: 

" ANY PERSON UNDER THE AGE OF 21 YEARS WHO VIOLATES ANY LAW OF THIS
STATE OR OF THE UNITED STATES OR ANY ORDINANCE OF ANY CITY OR COUNTY OF
THIS STATE DEFINING CRIME OR WHO, AFTER HAVING BEEN FOUND BY THE
JUVENILE COURT TO BE A PERSON DESCRIBED BY SECTION 601, FAILS TO OBEY
ANY LAWFUL ORDER OF THE JUVENILE COURT, IS WITHIN THE JURISDICTION OF
THE JUVENILE COURT, WHICH MAY ADJUDGE SUCH PERSON TO BE A WARD OF THE
COURT." 

AN AMENDMENT IN 1971, NOT RELEVANT HERE, LOWERED THE JURISDICTION
AGE FROM 21 TO 18.  1971 CALIF. STATS. 3766, C. 1748, SEC. 66. 

/2/ SEE CAL. WELF.  & INST'NS CODE SEC. 632, 635, 636 (1966).  THE
PROBATION OFFICER WAS REQUIRED TO PRESENT A PRIMA FACIE CASE THAT
RESPONDENT HAD COMMITTED THE OFFENSE ALLEGED IN THE PETITION.  IN RE
WILLIAM M., 3 CAL.3D 16, 473 P.2D737 (1970).  RESPONDENT WAS
REPRESENTED BY COURT-APPOINTED COUNSEL AT THE DETENTION HEARING AND
THEREAFTER. 

/3/ AT THE TIME OF THE HEARING, CAL. WELF.  & INST'NS CODE SEC. 701
(1966) PROVIDED: 

" AT THE HEARING, THE COURT SHALL FIRST CONSIDER ONLY THE QUESTION
WHETHER THE MINOR IS A PERSON DESCRIBED BY SECTIONS 600, 601, OR 602,
AND FOR THIS PURPOSE, ANY MATTER OR INFORMATION RELEVANT AND MATERIAL
TO THE CIRCUMSTANCES OR ACTS WHCH ARE ALLEGED TO BRING HIM WITHIN THE
JURISDICTION OF THE JUVENILE COURT IS ADMISSIBLE AND MAY BE RECEIVED IN
EVIDENCE; HOWEVER, A PREPONDERANCE OF EVIDENCE, LEGALLY ADMISSIBLE IN
THE TRIAL OF CRIMINAL CASES, MUST BE ADDUCED TO SUPPORT A FINDING THAT
THE MINOR IS A PERSON DESCRIBED BY SECTION 602, AND A PREPONDERANCE OF
EVIDENCE, LEGALLY ADMISSIBLE IN THE TRIAL OF CIVIL CASES MUST BE
ADDUCED TO SUPPORT A FINDING THAT THE MINOR IS A PERSON DESCRIBED BY
EXTRAJUDICIAL ADMISSION OR CONFESSION AND DENIES THE SAME AT THE
HEARING, THE COURT MAY CONTINUE THE HEARING FOR NOT TO EXCEED SEVEN
DAYS TO ENABLE THE PROBATION OFFICER TO SUBPOENA WITNESSES TO ATTEND
THE HEARING TO PROVE THE ALLEGATIONS OF THE PETITION.  IF THE MINOR IS
NOT REPRESENTED BY COUNSEL AT THE HEARING, IT SHALL BE DEEMED THAT
OBJECTIONS THAT COULD HAVE BEEN MADE TO THE EVIDENCE WERE MADE." 
(EMPHASIS ADDED.) 

A 1971 AMENDMENT SUBSTITUTED "PROOF BEYOND A REASONABLE DOUBT
SUPPORTED BY EVIDENCE" FOR THE LANGUAGE IN ITALICS.  1971 CALIF. STATS.
1832, C. 934, SEC. 1.  RESPONDENT DOES NOT CLAIM THAT THE STANDARD OF
PROOF AT THE HEARING FAILED TO SATISFY DUE PROCESS.  SEE IN RE WINSHIP,
397 U.S. 358 (1970); DE BACKER V. BRAINARD, 396 U.S. 28, 31 (1969). 

HEREAFTER, THE SEC. 701 HEARING WILL BE REFERRED TO AS THE
ADJUDICATORY HEARING. 

/4/ AT THE TIME, CAL. WELF & INST'NS CODE SEC. 702 (SUPP. 1968)
PROVIDED: 

" AFTER HEARING SUCH EVIDENCE, THE COURT SHALL MAKE A FINDING, NOTED
IN THE MINUTES OF THE COURT, WHETHER OR NOT THE MINOR IS A PERSON
DESCRIBED BY SECTIONS 600, 601, OR 602.  IF IT FINDS THAT THE MINOR IS
NOT SUCH A PERSON, IT SHALL ORDER THAT THE PETITION BE DISMISSED AND
THE MINOR BE DISCHARGED FROM ANY DETENTION OR RESTRICTION THERETOFORE
ORDERED.  IF THE COURT FINDS THAT THE MINOR IS SUCH A PERSON, IT SHALL
MAKE AND ENTER ITS FINDINGS AND ORDER ACCORDINGLY AND SHALL THEN
PROCEED TO HEAR EVIDENCE ON THE QUESTION OF THE PROPER DISPOSITION TO
BE MADE OF THE MINOR.  PRIOR TO DOING SO, IT MAY CONTINUE THE HEARING,
IF NECESSARY, TO RECEIVE THE SOCIAL STUDY OF THE PROBATION OFFICER OR
TO RECEIVE OTHER EVIDENCE ON ITS OWN MOTION OR THE MOTION OF A PARENT
OR GUARDIAN FOR NOT TO EXCEED 10 JUDICIAL DAYS IF THE MINOR IS DETAINED
DURING SUCH CONTINUANCE, AND IF THE MINOR IS NOT DETAINED, IT MAY
CONTINUE THE HEARING TO A DATE NOT LATER THAN 30 DAYS AFTER THE DATE OF
FILING OF THE PETITION.  THE COURT MAY, FOR GOOD CAUSE SHOWN CONTINUE
THE HEARING FOR AN ADDITIONAL 15 DAYS, IF THE MINOR IS NOT DETAINED. 
THE COURT MAY MAKE SUCH ORDER FOR DETENTION OF THE MINOR OR HIS RELEASE
FROM DETENTION, DURING THE PERIOD OF THE CONTINUANCE, AS IS
APPROPRIATE." 

/5/ AT THE TIME, CAL. WELF.  & INST'NS CODE SEC. 707 (SUPP. 1967)
PROVIDED: 

" AT ANY TIME DURING A HEARING UPON A PETITION ALLEGING THAT A MINOR
IS, BY REASON OF VIOLATION OF ANY CRIMINAL STATUTE OR ORDINANCE, A
PERSON DESCRIBED IN SECTION 602, WHEN SUBSTANTIAL EVIDENCE HAS BEEN
ADDUCED TO SUPPORT A FINDING THAT THE MINOR WAS 16 YEARS OF AGE OR
OLDER AT THE TIME OF THE ALLEGED COMMISSION OF SUCH OFFENSE AND THAT
THE MINOR WOULD NOT BE AMENABLETO THE CARE, TREATMENT AND TRAINING
PROGRAM AVAILABLE THROUGH THE FACILITIES OF THE JUVENILE COURT, OR IF,
AT ANY TIME AFTER SUCH HEARING, A MINOR WHO WAS 16 YEARS OF AGE OR
OLDER AT THE TIME OF THE COMMISSION OF AN OFFENSE AND WHO WAS COMMITTED
THEREFOR BY THE COURT TO THE YOUTH AUTHORITY, IS RETURNED TO THE COURT
BY THE YOUTH AUTHORITY PURSUANT TO SECTION 780 OR 1737.1, THE COURT MAY
MAKE A FINDING NOTED IN THE MINUTES OF THE COURT THAT THE MINOR IS NOT
A FIT AND PROPER SUBJECT TO BE DEALT WITH UNDER THIS CHAPTER, AND THE
COURT SHALL DIRECT THE DISTRICT ATTORNEY OR OTHER APPROPRIATE
PROSECUTING OFFICER TO PROSECUTE THE PERSON UNDER THE APPLICABLE
CRIMINAL STATUTE OR ORDINANCE AND THEREAFTER DISMISS THE PETITION OR,
IF A PROSECUTION HAS BEEN COMMENCED IN ANOTHER COURT BUT HAS BEEN
SUSPENDED WHILE JUVENILE COURT PROCEEDINGS ARE HELD, SHALL DISMISS THE
PETITION AND ISSUE ITS ORDER DIRECTING THAT THE OTHER COURT PROCEEDINGS
RESUME. 

" IN DETERMINING WHETHER THE MINOR IS A FIT AND PROPER SUBJECT TO BE
DEALT WITH UNDER THIS CHAPTER, THE OFFENSE, IN ITSELF, SHALL NOT BE
SUFFICIENT TO SUPPORT A FINDING THAT SUCH MINOR IS NOT A FIT AND PROPER
SUBJECT TO BE DEALT WITH UNDER THE PROVISIONS OF THE JUVENILE COURT
LAW. 

" A DENIAL BY THE PERSON ON WHOSE BEHALF THE PETITION IS BROUGHT OF
ANY OR ALL OF THE FACTS OR CONCLUSIONS SET FORTH THEREIN OR OF ANY
INFERENCE TO BE DRAWN THEREFROM IS NOT, OF ITSELF, SUFFICIENT TO
SUPPORT A FINDING THAT SUCH PERSON IS NOT A FIT AND PROPER SUBJECT TO
BE DEALT WITH UNDER THE PROVISIONS OF THE JUVENILE COURT LAW. 

" THE COURT SHALL CAUSE THE PROBATION OFFICER TO INVESTIGATE AND
SUBMIT A REPORT ON THE BEHAVIORAL PATTERNS OF THE PERSON BEING
CONSIDERED FOR UNFITNESS." 

/6/ THE JUVENILE COURT NOTED: 

" THIS RECORD I HAVE READ IS ONE OF THE MOST THREATENING RECORDS I
HAVE READ ABOUT ANY MINOR WHO HAS COME BEFORE ME. 

" WE HAVE, AS A MATTER OF SIMPLE FACT, NO LESS THAN THREE ARMED
ROBBERIES, EACH WITH A LOADED WEAPON.  THE DEGREE OF DELINQUENCY WHICH
THAT REPRESENTS, THE DEGREE OF SOPHISTICATION WHICH THAT REPRESENTS AND
THE DEGREE OF IMPOSSIBILITY OF ASSISTANCE AS A JUVENILE WHICH THAT
REPRESENTS, I THINK IS OVERWHELMING . . . ."  APP.  33. 

/7/ IN DOING SO, THE JUVENILE COURT IMPLICITLY REJECTED RESPONDENT'S
DOUBLE JEOPARDY ARGUMENT, MADE AT BOTH THE ORIGINAL SEC. 702 HEARING
AND IN A MEMORANDUM SUBMITTED BY COUNSEL PRIOR TO THE RESUMPTION OF
THAT HEARING AFTER THE CONTINUANCE. 

/8/ THE AUTHORITY FOR THE ORDER OF COMMITTMENT DERIVED FROM CAL.
WELF.  & INST'NS CODE SEC. 1731.5 (SUPP. 1971).  AT THE TIME OF THE
ORDER, CAL. WELF.  & INST'NS CODE SEC. 1771 (1966) PROVIDED: 

" EVERY PERSON CONVICTED OF A FELONY AND COMMITTED TO THE AUTHORITY
SHALL BE DISCHARGED WHEN SUCH PERSON REACHES HIS 25TH BIRTHDAY, UNLESS
AN ORDER FOR FURTHER DETENTION HAS BEEN MADE BY THE COMMITTING COURT
PURSUANT TO ARTICLE 6 (COMMENCING WITH SECTION 1800) OR UNLESS A
PETITION IS FILED UNDER ARTICLE 5 OF THIS CHAPTER.  IN THE EVENT SUCH A
PETITION UNDER ARTICLE 5 IS FILED, THE AUTHORITY SHALL RETAIN CONTROL
UNTIL THE FINAL DISPOSITION OF THE PROCEEDING UNDER ARTICLE 5." 

/9/ IN REACHING THIS CONCLUSION, THE COURT OF APPEALS ALSO RELIED ON
FAIN V. DUFF, 488 F.2D 218 (CA5 1973), CERT. PENDING, NO. 73 - 1768,
AND RICHARD M. V. SUPERIOR COURT, 4 CAL. 3D 370, 482 P.2D 664 (1971),
AND IT NOTED THAT " CALIFORNIA CONCEDES THAT JEOPARDY ATTACHES WHEN THE
JUVENILE IS ADJUDICATED A WARD OF THE COURT."  497 F.2D, AT 1166. 

/10/ DISTINCTIONS WHICH IN OTHER CONTEXTS HAVE PROVED DETERMINATIVE
OF THE CONSTITUTIONAL RIGHTS OF THOSE CHARGED WITH OFFENSES AGAINST
PUBLIC ORDER HAVE NOT SIMILARLY CONFINED THE PROCTECTION OF THE DOUBLE
JEOPARDY CLAUSE.  COMPARE ROBINSON V. NEIL, 409 U.S. 505 (1973), WITH
BALDWIN V. NEW YORK, 399 U.S. 66 (1970), AND ARGERSINGER V. HAMLIN, 407
U.S. 25 (1972).  FOR THE DETAILS OF ROBINSON'S TRIAL FOR VIOLATING A
CITY ORDINANCE, SEE ROBINSON V. HENDERSON, 268 F.SUPP.  349 (ED TENN.
1967), AFF'D F.2D 933 (CA6 1968). 

/11/ AT THE TIME OF RESPONDENT'S DISPOSITIONAL HEARING, PERMISSIBLE
DISPOSITIONS INCLUDED COMMITMENT TO THE CALIFORNIA YOUTH AUTHORITY
UNTIL HE REACHED THE AGE OF 21 YEARS.  SEE CAL. WELF.  & INST'NS CODE
SEC. 607, 731 (1966).  PETITIONER HAS CONCEDED THAT THE "ADJUDICATORY
HEARING IS, IN EVERY SENSE, A COURT TRIAL."  TR. OR ORAL ARG. 4. 

/12/ NOR DOES THE FACT "THAT THE PURPOSE OF THE COMMITMENT IS
REHABILITATIVE AND NOT PUNITIVE . . . CHANGE ITS NATURE.  . . .
REGARDLESS OF THE PURPOSES FOR WHICH THE INCARCERATION IS IMPOSED, THE
FACT REMAINS THAT IT IS INCARCERATION.  THE REHABILITATIVE GOALS OF THE
SYSTEM ARE ADMIRABLE, BUT THEY DO NOT CHANGE THE DRASTIC NATURE OF THE
ACTION TAKEN.  INCARCERATION OF ADULTS IS ALSO INTENDED TO PRODUCE
REHABILITATION."  FAIN V. DUFF, 488 F.2D, AT 225.  SEE PRESIDENT'S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE
REPORT:  JUVENILE DELINQUENCY AND YOUTH CRIME 8 - 9 (1967). 

/13/ THE SAME CONCLUSION WAS REACHED BY THE CALIFORNIA COURT OF
APPEAL IN DENYING RESPONDENT'S PETITION FOR A WRIT OF HABAES CORPUS. 
IN RE GARY J., 17 CAL. APP.3D 704, 710, 95 CAL. RPTR.  185, 189
(1971). 

/14/ SEE GENERALLY TASK FORCE REPORT, SUPRA, N. 12, AT 24 - 25.  SEE
ALSO RUDSTEIN, DOUBLE JEOPARDY IN JUVENILE PROCEEDINGS, 14 WM. & MARY
L.REV.  266, 297 - 300 (1972); CARR, THE EFFECT OF THE DOUBLE JEOPARDY
CLAUSE ON JUVENILE PROCEEDINGS, 6 U. TOL.  L. REV. 1, 21 - 22 (1974). 

/15/ THAT THE FLEXIBILITY AND INFORMALITY OF JUVENILE PROCEEDING ARE
DIMINISHED BY THE APPLICATION OF DUE PROCESS STANDARDS IS NOT OPEN TO
DOUBT.  DUE PROCESS STANDARDS INEVITABLY PRODUCE SUCH AN EFFECT, BUT
THAT TELLS US NO MORE THAN THAT THE CONSTITUTION IMPOSES BURDENS ON THE
FUNCTIONING OF GOVERNMENT AND ESPECIALLY OF LAW ENFORCEMENT
INSTITUTIONS. 

/16/ UNDER CAL. WELF.  & INST'NS CODE SEC. 707 (1972), THE GOVERNING
CRITERION WITH RESPECT TO TRANSFER, ASSUMING THE JUVENILE IS 16 YEARS
OF AGE AND IS CHARGED WITH A VIOLATION OF A CRIMINAL STATUTE OR
ORDINANCE, IS AMENABILITY "TO THE CARE, TREATMENT AND TRAINING PROGRAM
AVAILABLE THROUGH THE FACILITIES OF THE JUVENILE COURT."  THE SECTION
FURTHER PROVIDES THAT NEITHER "THE OFFENSE, IN ITSELF" NOR A DENIAL BY
THE JUVENILE OF THE FACTS OR CONCLUSIONS SET FORTH IN THE PETITION
SHALL BE "SUFFICIENT TO SUPPORTA FINDING THAT (HE) IS NOT A FIT AND
PROPER SUBJECT TO BE DEALT WITH UNDER THE PROVISIONS OF THE JUVENILE
COURT LAW."  SEE N. 5, SUPRA.  THE CALIFORNIA SUPREME COURT HAS HELD
THAT THE ONLY FACTOR A JUVENILE COURT MUST CONSIDER IS THE JUVENILE'S
"BEHAVIOR PATTERN AS DESCRIBED IN THE PROBATION OFFICER'S REPORT,"
JIMMY H. V. SUPERIOR COURT, 3 CAL.3D 709, 714, 478 P.2D 32, 35 (1970),
BUT THAT IT MAY ALSO CONSIDER, INTER ALIA, THE NATURE AND CIRCUMSTANCES
OF THE ALLEGED OFFENSE.  SEE ID., AT 716, 478 P.2D, AT 36. 

IN CONTRAST TO CALIFORNIA, WHICH DOES NOT REQUIRE ANY EVIDENTIARY
SHOWING WITH RESPECT TO THE COMMISSION OF THE OFFENSE, A NUMBER OF
JURISDICTIONS REQUIRE A FINDING OF PROBABLE CAUSE TO BELIEVE THE
JUVENILE COMMITTED THE OFFENSE BEFORE TRANSFER IS PERMITTED.  SEE
RUDSTEIN, SUPRA, N. 14, AT 298 - 299; CARR, SUPRA, N. 14, AT 21 - 22. 
IN ADDITION, TWO JURISDICTIONS APPEAR PRESENTLY TO REQUIRE A FINDING OF
DELINQUENCY BEFORE THE TRANSFER OF A JUVENILE TO ADULT COURT.  ALA.
CODE, TIT. 13, SEC. 364 (1959) (SEE RUDOLPH V. STATE, 286 ALA.  189,
238 SO.2D 542 (1970)); W. VA. CODE ANN SEC. 49 - 5 - 14 (1966). 

/17/ SEE, E.G., FLA. STAT. ANN. SEC. 39.09(2)(G) (1974); TENN.
CODE.  ANN. SEC. 37 - 234(E)(SUPP.  1974); WYO. STAT. SEC. 14 -
115.38(C) (SUPP. 1973); UNIFORM JUVENILE COURT ACT SEC. 34(E), APPROVED
IN JULY 1968 BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM
STATE LAWS.  SEE ALSO DONALD L. V. SUPERIOR COURT, 7 CAL.3D 592, 598,
498 P.2D 1098, 1101 (1972). 

/18/ WE NOTE THAT NOTHING DECIDED TODAY FORECLOSES STATES FROM
REQUIRING, AS A PREREQUISITE TO THE TRANSFER OF A JUVENILE, SUBSTANTIAL
EVIDENCE THAT HE COMMITTED THE OFFENSE CHARGED, SO LONG AS THE SHOWING
REQUIRED IS NOT MADE IN AN ADJUDICATORY PROCEEDING.  SEE COLLINS V.
LOISEL, 262 U.S. 426, 429 (1923); SERFASS V. UNITED STATES, 420 U.S.
377, 391 - 392 (1975).  THE INSTANT CASE IS NOT ONE IN WHICH THE
JUDICIAL DETERMINATION WAS SIMPLY A FINDING OF, E.G., PROBABLE CAUSE. 
RATHER, IT WAS AN ADJUDICATION THAT RESPONDENT HAD VIOLATED A CRIMINAL
STATUTE.     /19/ SEE RUDSTEIN, SUPRA, N. 14, AT 299 - 300; CARR,
SUPRA, N. 14, AT 24, 57 - 58.  SEE ALSO UNIFORM JUVENILE COURT ACT SEC.
34(A), (C); COUNCIL OF JUDGES OF THE NAT. COUNCIL ON CRIME AND
DELINQUENCY, MODEL RULES FOR JUVENILE COURTS, RULE 9 (1969); W.
SHERIDAN, LEGISLATIVE GUIDE FOR DRAFTING FAMILY AND JUVENILE COURT ACTS
SEC. 27, 31(A) (DEPT. OF HEW, CHILDREN'S BUREAU PUB. NO. 472 - 1969). 
IN CONTRAST, APPARENTLY ONLY THREE STATES PRESENTLY REQUIRE THAT A
HEARING ON THE JUVENILE PETITION OR COMPLAINT PRECEDE TRANSFER.  ALA.
CODE, TIT. 13, SEC. 364 (1959) (SEE RUDOLPH V. STATE, SUPRA); MASS.
GEN. LAWS ANN., C. 119, SEC. 61 (1969) (SEE IN RE JUVENILE, __ MASS.__,
__AND N. 10, 306 N.E.2D 822, 829 - 830 AND N. 10 (1974)); W. VA. CODE
ANN. SEC. 49 - 5 -14 (1966). 

/20/ WE INTIMATE NO VIEWS CONCERNING THE CONSTITUTIONAL VALIDITY OF
TRANSFER FOLLOWING THE ATTACHMENT OF JEOPARDY AT AN ADJUDICATORY
HEARING WHERE THE INFORMATION WHICH FORMS THE PREDICATE FOR THE
TRANSFER DECISION COULD NOT, BY THE EXERCISE OF DUE DILIGENCE,
REASONABLY HAVE BEEN OBTAINED PREVIOUSLY.  CF., E.G., ILLINOIS V.
SOMERVILLE, 410 U.S. 458 (1973). 

/21/ SEE THE STATUTES CITED IN N. 16, SUPRA.  THE REASON FOR THIS
WAIVER PROVISION IS CLEAR.  A JUVENILE WILL ORDINARILY NOT WANT TO
DISMISS A JUDGE WHO HAS REFUSED TO TRANSFER HIM TO A CRIMINAL COURT. 
THERE IS A RISK OF HAVING ANOTHER JUDGEASSIGNED TO THE CASE WHO IS NOT
AS SYMPATHETIC.  MOREOVER, IN MANY CASES, A RAPPORT HAS BEEN
ESTABLISHED BETWEEN THE JUDGE AND THE JUVENILE, AND THE GOAL OF
REHABILITATION IS WELL ON ITS WAY TO BEING MET."  BRIEF FOR NATIONAL
COUNCIL OF JUVENILE COURT JUDGES AS AMICUS CURIAE 38. 

/22/ ALTHOUGH DENYING RESPONDENT'S PETITION FOR A WRIT OF HABEAS
CORPUS, THE JUDGE OF THE JUVENILE COURT NOTED:  " IF HE DOESN'T OPEN UP
WITH A PROBATION OFFICER THERE IS OF COURSE THE DANGER THAT THE
PROBATION OFFICER WILL FIND THAT HE IS SO UNCOOPERATIVE THAT HE CANNOT
MAKE A RECOMMENDATION FOR THE KIND OF TREATMENT YOU THINK HE REALLY
SHOULD HAVE AND, YET, AS THE ATTORNEY WORRYING ABOUT WHAT MIGHT HAPPEN
AS (SIC) THE DISPOSITION HEARING, YOU HAVE TO ADVISE HIM TO CONTINUE TO
MORE OR LESS STAND UPON HIS CONSTITUTIONAL RIGHT NOT TO INCRIMINATE
HIMSELF . . . ."  APP.  38.  SEE NOTE, DOUBLE JEOPARDY AND THE WAIVER
OF JURISDICTION IN CALIFORNIA'S JUVENILE COURTS, 24 STAN.  L.REV.  874,
902 N. 137 (1972). 

/23/ WITH RESPECT TO THE POSSIBILITY OF "MAKING THE JUVENILE
PROCEEDINGS CONFIDENTIAL AND NOT BEING ABLE TO BE USED AGAINST THE
MINOR," THE JUDGE OF THE JUVENILE COURT OBSERVED:  " I MUST SAY THAT
DOESN'T IMPRESS ME BECAUSE IF THE MINOR ADMITTED SOMETHING IN THE
JUVENILE COURT AND NAMED HIS COMPANIONS NOBODY IS GOING TO ERADICATE
FROM THE MINDS OF THE DISTRICT ATTORNEY OR OTHER PEOPLE THE INFORMATION
THEY OBTAINED."  APP.  41 - 42. 

RUSSEL IUNGERICH, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE EVELLE J. YOUNGER,
ATTORNEY GENERAL, JACK R. WINKLER, CHIEF ASSISTANT ATTORNEY GENERAL, S.
CLARK MOORE, ASSISTANT ATTORNEY GENERAL, AND KENT L. RICHLAND, DEPUTY
ATTORNEY GENERAL. 

ROBERT L. WALKER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON BRIEF
WAS PETER BULL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY ALFRED L.
SCANLAN FOR THE NATIONAL COUNCIL OF JUVENILE COURT JUDGES; BY DAVID
GILMAN FOR THE NATIONAL COUNCIL ON CRIME AND DELINQUENCY ET AL.; AND BY
RICHARD S. BUCKLEY AND LAURANCE S. SMITH FOR THE CALIFORNIA PUBLIC
DEFENDERS ASSN.
..END :









FRY V. UNITED STATES, 421 U.S. 542 


       FRY ET AL. V. UNITED STATES

        CERTIORARI TO THE TEMPORARY EMERGENCY COURT OF APPEALS OF

THE UNITED STATES

        NO. 73 - 822.  ARGUED NOVEMBER 11, 1974--DECIDED

        MAY 27, 1975; 487 F.2D 936, AFFIRMED. 


    THE ECONOMIC STABILIZATION ACT OF 1970 AUTHORIZED THE PRESIDENT

  TO STABILIZE WAGES AND SALARIES AT CERTAIN LEVELS, AND THE PAY

  BOARD WAS CREATED TO OVERSEE THE CONTROLS.  THE GOVERNMENT FILED

  THIS ACTION TO ENJOIN OHIO AND ITS OFFICIALS FROM PAYING STATE

  STATUTORY WAGE AND SALARY INCREASES TO STATE EMPLOYEES ABOVE THE

  AMOUNT AUTHORIZED BY THE PAY BOARD.  THE TEMPORARY EMERGENCY

  COURT OF APPEALS, ON CERTIFICATION FROM THE DISTRICT COURT,

  CONSTRUED THE ACT AS APPLYING TO STATE EMPLOYEES, UPHELD ITS

CONSTITUTIONALITY, AND ENJOINED PAYMENT OF THE INCREASES.  HELD: 

     1.  THE ACT'S LANGUAGE COMTEMPLATING GENERAL STABILIZATION OF

  "PRICES, RENTS, WAGES, SALARIES, DIVIDENDS, AND INTEREST" AND

  PROVIDING THAT THE CONTROLS SHOULD "CALL FOR GENERALLY COMPARABLE

  SACRIFICES BY BUSINESS AND LABOR AS WELL AS OTHER SEGMENTS OF THE

  ECONOMY," AND ITS LEGISLATIVE HISTORY SHOWING THAT CONGRESS HAD

  REJECTED AN AMENDMENT EXEMPTING STATE EMPLOYEES, MAKE IT CLEAR

  THAT THE ACT WAS INTENDED TO APPLY TO EMPLOYEES GENERALLY,

INCLUDING STATE EMPLOYEES.  THAT THE ACT DID NOT EXPRESSLY REFER

  TO THE STATES WARRANTS NO INFERENCE THAT CONTROLS COULD NOT

  EXTEND TO THEIR EMPLOYEES.  PP. 545 - 546. 

 2.  THE ACT WAS CONSTITUTIONAL AS APPLIED TO STATE EMPLOYEES.  PP.
547 - 548. 

     (A) GENERAL RAISES TO STATE EMPLOYEES, EVEN THOUGH PURELY

  INTRASTATE IN CHARACTER, COULD SIGNIFICANTLY AFFECT INTERSTATE

  COMMERCE, AND THUS COULD BE VALIDLY REGULATED BY CONGRESS UNDER

  THE COMMERCE CLAUSE.  P. 547. 

     (B) STATES ARE NOT IMMUNE FROM ALL FEDERAL REGULATION UNDER
THE

  COMMERCE CLAUSE MERELY BECAUSE OF THEIR SOVEREIGN STATUS. 

  MARYLAND V. WIRTZ, 392 U.S. 183.  HERE, WHERE THE ACT DID NOT

  APPRECIABLY INTRUDE ON STATE SOVEREIGNTY BUT WAS AN EMERGENCY

  MEASURE TO COUNTER SEVERE INFLATION, THE EFFECTIVENESS OF FEDERAL

  ACTION WOULD HAVE BEEN DRASTICALLY IMPAIRED IF WAGE INCREASES TO

 STATE AND LOCAL GOVERNMENT EMPLOYEES (WHO AT THE TIME THE WAGE

  FREEZE WAS ACTIVATED COMPOSED 14% OF THE NATION'S WORK FORCE)

  WERE LEFT OUTSIDE THE ACT'S REACH.  PP. 547 - 548. 

     (C) SINCE THE OHIO WAGE LEGISLATION CONFLICTED WITH THE PAY

  BOARD'S RULING, THE STATE MUST YIELD UNDER THE SUPREMACY CLAUSE

  TO THE FEDERAL MANDATE.  P. 548. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, BLACKMUN, AND POWELL,

  JJ., JOINED.  DOUGLAS, J., FILED A SEPARATE STATEMENT, POST, P.

  549.  REHNQUIST, J., FILED A DISSENTING OPINION, POST, P. 549. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE ECONOMIC STABILIZATION ACT OF 1970 /1/ AUTHORIZED THE PRESIDENT
TO ISSUE ORDERS AND REGULATIONS TO STABILIZE WAGES AND SALARIES AT
LEVELS NOT LESS THAN THOSE PREVAILING ON MAY 25, 1970.  BY EXECUTIVE
ORDER, THE PRESIDENT CREATED THE PAY BOARD TO OVERSEE WAGE AND SALARY
CONTROLS IMPOSED UNDER THE ACT'S AUTHORIZATION.  EXEC. ORDER 11627, 3
CFR 218 (1971 COMP.), NOTE FOLLOWING 12 U.S.C. SEC. 1904 (1970 ED.,
SUPP. 1).  IN IMPLEMENTING THE WAGE STABILIZATION PROGRAM, THE PAY
BOARD ISSUED REGULATIONS THAT LIMITED ANNUAL SALARY INCREASES FOR
COVERED EMPLOYEES TO 5.5% AND REQUIRED PRIOR BOARD APPROVAL FOR ALL
SALARY ADJUSTMENTS AFFECTING 5,000 OR MORE EMPLOYEES.  /2/ THE STATE OF
OHIO SUBSEQUENTLY ENACTED LEGISLATION PROVIDING FOR A 10.6% WAGE AND
SALARY INCREASE, EFFECTIVE JANUARY 1, 1972, FOR ALMOST 65,000 STATE
EMPLOYEES.  /3/ THE STATE APPLIED TO THE PAY BOARD FOR APPROVAL OF THE
INCREASES, AND A PUBLIC HEARING WAS HELD.  IN MARCH 1972, THE BOARD
DENIED THE APPLICATION FOR AN EXEMPTION TO THE EXTENT THAT IT EXCEEDED
SALARY INCREASES OF 7% FOR THE 1972 WAGE YEAR.  /4/ PETITIONERS, TWO
STATE EMPLOYEES, SOUGHT A WRIT OF MANDAMUS IN STATE COURT TO COMPEL
OHIO OFFICIALS TO PAY THE FULL INCREASES PROVIDED IN THE STATE PAY
ACT.  THE OHIO SUPREME COURT GRANTED THE WRIT AND ORDERED THE INCREASES
TO BE PAID.  STATE EX REL. FRY V. FERGUSON, 34 OHIO ST.2D 252, 298
N.E.2D 129 (1973). 

AFTER THE STATE SUPREME COURT DECISION, THE UNITED STATES FILED THIS
ACTION IN THE DISTRICT COURT TO ENJOIN OHIO AND ITS OFFICIALS FROM
PAYING WAGE AND SALARY INCREASES IN EXCESS OF THE 7% AUTHORIZEDBY THE
PAY BOARD.  THE DISTRICT COURT CERTIFIED TO THE TEMPORARY EMERGENCY
COURT OF APPEALS THE QUESTION OF THE APPLICABILITY OF FEDERAL WAGE AND
SALARY CONTROLS TO STATE EMPLOYEES.  SEE SEC. 211(C) OF THE ECONOMIC
STABILIZATION ACT, NOTE FOLLOWING 12 U.S.C. SEC. 1904 (1970 ED., SUPP.
I). 

THE COURT OF APPEALS CONSTRUED THE ACT AS APPLYING TO STATE
EMPLOYEES AND AS THUS CONSTRUED UPHELD ITS CONSTITUTIONALITY.  UNITED
STATES V. OHIO, 487 F.2D 936 (1973).  RELYING ON THE DECISIONS OF THIS
COURT IN MARYLAND V. WIRTZ, 392 U.S. 183 (1968), AND UNITED STATES V.
CALIFORNIA, 297 U.S. 175 (1936), THE COURT CONCLUDED THAT THE
INTERFERENCE WITH STATE AFFAIRS INCIDENT TO THE UNIFORM IMPLEMENTATION
OF FEDERAL ECONOMIC CONTROLS WAS OF NO CONSEQUENCE SINCE CONGRESS HAD A
RATIONAL BASIS UPON WHICH TO CONCLUDE THAT THE STATE ACTIVITY
SUBSTANTIALLY AFFECTED COMMERCE.  THE COURT OF APPEALS ACCORDINGLY
ENJOINED THE PAYMENT OF WAGE AND SALARY INCREASES IN EXCESS OF THE
AMOUNT AUTHORIZED BY THE PAY BOARD.  WE AFFIRM. 

        I 

AT THE OUTSET, IT IS CONTENDED THAT CONGRESS DID NOT INTEND TO
INCLUDE STATE EMPLOYEES WITHIN THE REACH OF THE ECONOMIC STABILIZATION
ACT AND THAT THE PAY BOARD THEREFORE DID NOT HAVE THE AUTHORITY TO
REGULATE THE COMPENSATION DUE STATE EMPLOYEES.  /5/ WE DISAGREE.  THE
LANGUAGE AND LEGISLATIVE HISTORY OF THE ACT LEAVE NO DOUBT THAT
CONGRESS INTENDED THAT IT APPLY TO EMPLOYEES THROUGHOUT THE ECONOMY,
INCLUDING THOSE EMPLOYED BY STATE AND LOCAL GOVERNMENTS.  THE ACT
CONTEMPLATED GENERAL STABILIZATION OF "PRICES, RENTS,WAGES, SALARIES,
DIVIDENDS, AND INTEREST," SEC. 202, NOT FOLLOWING 12 U.S.C. SEC. 1904
(1970 ED., SUPP. I), AND IT PROVIDED THAT THE CONTROLS SHOULD "CALL FOR
GENERALLY COMPARABLE SACRIFICES BY BUSINESS AND LABOR AS WELL AS OTHER
SEGMENTS OF THE ECONOMY."  SEC.  203(B)(5).  IT CONTAINED NO
EXECEPTIONS FOR EMPLOYEES OF ANY GOVERNMENTAL BODIES, EVEN AT THE
FEDERAL LEVEL.  /6/ THE FAILURE OF THE ACT TO MAKE EXPRESS REFERENCE TO
THE STATES DOES NOT WARRANT THE INFERENCE THAT CONTROLS COULD NOT BE
EXTENDED TO THEIR EMPLOYEES.  SEE CASE V. BOWLES, 327 U.S. 92, 99
(1946); UNITED STATES V. CALIFORNIA, 297 U.S., AT 186.  INDEED, IN
FRAMING THE ACT, CONGRESS SPECIFICALLY REJECTED AN AMENDMENT THAT WOULD
HAVE EXEMPTED EMPLOYEES OF STATE AND LOCAL GOVERNMENTS.  117 CONG. REC.
43673 - 43677 (1971).  AND THE SENATE COMMITTEE REPORT MAKES IT PLAIN
THAT THE COMMITTEE CONSIDERED AND REJECTED A PORPOSED EXEMPTION FOR THE
SAME GROUP.  S. REP. NO. 92 - 507, P. 4 (1971).  IT IS CLEAR, THEN,
THAT CONGRESS INTENDED TO REACH STATE AND LOCAL GOVERNMENTAL
EMPLOYEES.  THE ONLY REMAINING QUESTION IS WHETHER IT COULD DO SO
CONSISTENT WITH THE CONSTITUTIONAL LIMITATIONS ON ITS POWER. 

        II 

PETITIONERS ACKNOWLEDGE THAT CONGRESS' POWER UNDER THE COMMERCE
CLAUSE IS VERY BROAD.  EVEN ACTIVITY THAT IS PURELY INTRASTATE IN
CHARACTER MAY BE REGULATED BY CONGRESS, WHERE THE ACTIVITY, COMBINED
WITH LIKE CONDUCT BY OTHERS SIMILARLY SITUATED, AFFECTS COMMERCE AMONG
THE STATES OR WITH FOREIGN NATIONS.  SEE HEART OF ATLANTA MOTEL, INC.
V. UNITED STATES, 379 U.S. 241, 255 (1964); WICKARD V. FILBURN, 317
U.S. 111, 127 - 128 (1942).  THERE IS LITTLE DIFFICULTY IN CONCLUDING
THAT SUCH AN EFFECT COULD WELL RESULT FROM LARGE WAGE INCREASES TO
65,000 EMPLOYEES IN OHIO AND SIMILAR NUMBERS IN OTHER STATES, E.G.,
GENERAL RAISES TO STATE EMPLOYEES COULD INJECT MILLIONS OF DOLLARS OF
PURCHASING POWER INTO THE ECONOMY AND MIGHT EXERT PRESSURE ON OTHER
SEGMENTS OF THE WORK FORCE TO DEMAND COMPARABLE INCREASES. 

PETITIONERS DO NOT APPEAR TO CHALLENGE CONGRESS' CONCLUSION THAT
UNRESTRAINED WAGE INCREASES, EVEN FOR EMPLOYEES OF WHOLLY INTRASTATE
OPERATIONS, COULD HAVE A SIGNIFICANT EFFECT ON COMMERCE.  INSTEAD, THEY
CONTEND THAT APPLYING THE ECONOMIC STABILIZATION ACT TO STATE EMPLOYEES
INTERFERES WITH SOVEREIGN STATE FUNCTIONS AND FOR THAT REASON THE
COMMERCE CLAUSE SHOULD NOT BE READ TO PERMIT REGULATION OF ALL STATE
AND LOCAL GOVERNMENTAL EMPLOYEES.  /7/ 

ON THE FACTS OF THIS CASE, THIS ARGUMENT IS FORECLOSED BY OUR
DECISION IN MARYLAND V. WIRTZ, 392 U.S. 183, WHERE WE HELD THAT THE
FAIR LABOR STANDARDS ACT WOULD CONSTITUTIONALLY BE APPLIED TO SCHOOLS
AND HOSPITALS RUN BY A STATE.  WIRTZ REITERATED THE PRINCIPLE THAT
STATES ARE NOT IMMUNE FROM ALL FEDERAL REGULATION UNDER THE COMMERCE
CLAUSE MERELY BECAUSE OF THEIR SOVEREIGN STATUS.  392 U.S., AT 196 -
197.  WE NOTED, MOREOVER, THAT THE STATUTE AT ISSUE IN WIRTZ WAS QUITE
LIMITED IN APPLICATION.  THE FEDERAL REGULATION IN THIS CASE IS EVEN
LESS INTRUSIVE.  CONGRESS ENACTED THE ECONOMIC STABILIZATION ACT AS AN
EMERGENCY MEASURE TO COUNTER SEVERE INFLATION THAT THREATENED THE
NATIONAL ECONOMY.  H.R. REP. NO. 91 - 1330, PP. 9 - 11 (1970).  THE
METHOD IT CHOSE, UNDER THE COMMERCE CLAUSE, WAS TO GIVE THE PRESIDENT
AUTHORITY TO FREEZE VIRTUALLY ALL WAGES AND PRICES, INCLUDING THE WAGES
OF STATE AND LOCAL GOVERNMENT EMPLOYEES.  IN 1971, WHEN THE FREEZE WAS
ACTIVATED, STATE AND LOCAL GOVERNMENT EMPLOYEES COMPOSED 14% OF THE
NATION'S WORK FORCE.  BRIEF FOR UNITED STATES 20.  IT SEEMS INESCAPABLE
THAT THE EFFECTIVENESS OF FEDERAL ACTION WOULD HAVE BEEN DRASTICALLY
IMPAIRED IF WAGE INCREASES TO THIS SIZEABLE GROUP OF EMPLOYEES WERE
LEFT OUTSIDE THE REACH OF THESE EMERGENCY FEDERAL WAGE CONTROLS. 

WE CONCLUDE THAT THE ECONOMIC STABILIZATION ACT WAS CONSTITUTIONAL
AS APPLIED TO STATE AND LOCAL GOVERNMENTAL EMPLOYEES.  SINCE THE OHIO
WAGE LEGISLATION CONFLICTED WITH THE PAY BOARD'S RULING, UNDER THE
SUPREMACY CLAUSE THE STATE MUST YIELD TO THE FEDERAL MANDATE.  SEE
PUBLIC UTILITIES COMM'N OF CALIFORNIA V. UNITED STATES, 355 U.S. 534,
542 - 545 (1958); MURPHY V. O' BRIEN, 485 F.2D 671, 675 (TEMP.  EMERG. 
CT. APP. 1973). 

                               AFFIRMED. 

/1/ TITLE II OF THE ACT OF AUG. 15, 1970, PUB. L. 91 - 379, 84 STAT.
799, AS AMENDED, NOTE FOLLOWING 12 U.S.C. SEC. 1904 (1970 ED., SUPP.
I).  THE ACT WAS EXTENDED FIVE TIMES BEFOREIT EXPIRED ON APRIL 30,
1974. 

/2/ 6 CFR SECS. 101.21, 201.10 (1971).  SEE ALSO 6 CFR SEC. 101.28
(1972). 

/3/ OHIO REV. CODE ANN. SEC. 143.10(A) (SUPP. 1972).  THE ACT
PROVIDED FOR SALARY INCREASES FOR EMPLOYEES OF THE STATE GOVERNMENT,
STATE UNIVERSITIES, AND COUNTY WELFARE DEPARTMENTS.  ELECTED STATE
OFFICIALS WERE NOT INCLUDED. 

/4/ THE PAY BOARD DETERMINED THAT THE IMPLEMENTATION OF THE PAY
INCREASE FROM MARCH 1972 TO NOVEMBER 1972 WOULD REDUCE THE EFFECTIVE
RATE TO 7% FOR THE WAGE YEAR NOVEMBER 14, 1971, TO NOVEMBER 13, 1972. 
THE PAYMENTS IN ISSUE HERE THEREFORE REPRESENT THE WAGES AND SALARIES
THAT WERE DUE FROM JANUARY 1, 1972, WHEN THE PAY INCREASE WAS TO TAKE
EFFECT, TO MARCH 16, 1972.  THE TOTAL AMOUNT INVOLVED IS $10.5
MILLION. 

/5/ PETITIONERS DID NOT RAISE THE STATUTORY ISSUE EITHER IN THEIR
PETITION FOR CERTIORARI OR IN THEIR BRIEF.  RATHER THAN DECIDE A
CONSTITUTIONAL QUESTION WHEN THERE MAY BE DOUBT WHETHERTHERE IS ANY
STATUTORY BASIS FOR IT, HOWEVER, WE DEAL FIRST WITH THE STATUTORY
QUESTION, WHICH IS ADDRESSED IN THE BRIEFS OF AMICI CURIAE SEEKING
REVERSAL. 

/6/ CONGRESS DID PROVIDE FOR THE EXEMPTION OF CERTAIN CATEGORIES OF
EMPLOYEES, SUCH AS MEMBERS OF THE WORKING POOR, THOSE EARNING SUB
STANDARD WAGES, AND THOSE ENTITLED TO WAGE INCREASES UNDER THE FAIR
LABOR STANDARDS ACT.  SECS. 203(D) AND (F), NOTE FOLLOWING 12 U.S.C.
SEC. 1904 (1970 ED., SUPP. I).  SEE ALSO SEC. 203(C)(1) - (3), (F)(2),
(3), AND (G).  THE VARIOUS STABILIZATION AGENCIES HAVE UNIFORMLY
INTERPRETED THE ACT TO INCLUDE THE STATES WITHIN ITS SCOPE, SEE 36 FED.
REG. 21790, 25428 (1971); 37 FED. REG. 1240, 24961, 24989 - 24991
(1972).  WE HAVE LONG RECOGNIZED THAT THE INTERPRETATION OF A STATUTE
BY AN IMPLEMENTING AGENCY IS ENTITLED TO GREAT WEIGHT.  UDALL V.
TALLMAN, 380 U.S. 1, 16 - 18 (1965). 

/7/ PETITIONERS HAVE STATED THEIR ARGUMENT, NOT IN TERMS OF THE
COMMERCE POWER, BUT IN TERMS OF THE LIMITATIONS ON THAT POWER IMPOSED
BY THE TENTH AMENDMENT.  WHILE THE TENTH AMENDMENT HAS BEEN
CHARACTERIZED AS A "TRUISM," STATING MERELY THAT "ALL IS RETAINED WHICH
HAS NOT BEEN SURRENDERED," UNITED STATES V. DARBY, 312 U.S. 100, 124
(1941), IT IS NOT WITHOUT SIGNIFICANCE.  THE AMENDMENT EXPRESSLY
DECLARES THE CONSTITUTIONAL POLICY THAT CONGRESS MAY NOT EXERCISE POWER
IN A FASHION THAT IMPAIRS THE STATES' INTEGRITY OR THEIR ABILITY TO
FUNCTION EFFECTIVELY IN A FEDERAL SYSTEM.  DESPITE THE EXTRAVAGANT
CLAIMS ON THIS SCORE MADE BY SOME AMICI, WE ARE CONVINCED THAT THE WAGE
RESTRICTION REGULATIONS CONSTITUTED NO SUCH DRASTIC INVASION OF STATE
SOVEREIGNTY. 

MR. JUSTICE DOUGLAS. 

LESS THAN THREE MONTHS AFTER WR GRANTED CERTIORARI, CONGRESS ALLOWED
THE ECONOMIC STABILIZATION ACT TO EXPIRE ON APRIL 30, 1974.  THERE IS
THEREFORE NO CONTINUING IMPEDIMENT TO THE PAYMENT OF SALARY INCREASES
OF THE KIND AT ISSUE IN THIS CASE.  I WOULD THEREFORE DISMISS THE WRIT
AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE REHNQUIST, DISSENTING. 

MR. CHIEF JUSTICE CHASE IN HIS OPINION FOR THE COURT IN TEXAS V.
WHITE, 7 WALL.  700, 725 (1869), DECLARED THAT "(THE CONSTITUTION, IN
ALL ITS PROVISIONS, LOOKS TO AN INDESTRUCTIBLE UNION, COMPOSED OF
INDESTRUCTIBLE STATES."  A LITTLE OVER A CENTURY LATER, THERE CAN BE NO
DOUBT THAT WE HAVE AN INDESTRUCTIBLE UNION, BUT THE COURT'S OPINION IN
THIS CASE IS THE LATEST IN A SERIES OF DECISIONS WHICH CASTS SOME DOUBT
UPON WHETHER THOSE STATES ARE INDEED "INDESTRUCTIBLE." 

MARYLAND V. WIRTZ, 392 U.S. 183 (1968), HELD THAT CONGRESS COULD
IMPOSE THE PROVISIONS OFTHE FAIR LABOR STANDARDS ACT UPON STATE
ENTITIES, SO AS TO REGULATE THE MAXIMUM NUMBER OF HOURS AND MINIMUM
WAGES RECEIVED BY STATE EMPLOYEES OF HOSPITALS, INSTITUTIONS, AND
SCHOOLS.  THE COURT'S OPINION IN THIS CASE NOT UNREASONABLY RELIES ON
WIRTZ IN HOLDING THAT CONGRESS MAY IMPOSE ACROSS-THE-BOARD LIMITATIONS
ON SALARY INCREASES FOR ALL STATE EMPLOYEES.  IN THEIR BRIEFS AND
ARGUMENTS TO THIS COURT, PETITIONERS SOUGHT TO DISTINGUISH WIRTZ ON THE
GROUND THAT THE EMPLOYEES THERE REGULATED WERE PERFORMING PRIMARILY
"PROPRIETARY" FUNCTIONS.  THE GOVERNMENT COUNTERED THIS ARGUMENT WITH
LANGUAGE FROM UNITED STATES V. CALIFORNIA, 297 U.S. 175 (1936), A CASE
WHICH IS NOT DISCUSSED BY THE COURT BUT WHICH WAS CRITICAL TO THE
DEVELOPMENT OF THE DOCTRINE WHICH THE COURT TODAY APPLIES.  THERE THE
COURT HELD THAT THE STATE OF CALIFORNIA, IN OPERATING A RAILROAD WHOLLY
WITHIN ITS OWN BOUNDARIES, WAS SUBJECT TO THE PROVISIONS OF THE FEDERAL
SAFETY APPLIANCE ACT. 

TODAY'S DECISION, LIKE MARYLAND V. WIRTZ, SUPRA, AND UNITED STATES
V. CALIFORNIA, SUPRA, IS PLAUSIBLE ON ITS FACTS.  CONGRESS IN THE
ECONOMIC STABILIZATION ACT OF 1970 WISHED TO CHECK RUNAWAY INFLATION,
AND AS A MEANS TO THAT END SOUGHT TO CONTROL INCREASES IN WAGES AND
SALARIES.  SINCE STATE EMPLOYEES CONSTITUTE A SIGNIFICANT PORTION OF
THE LABOR FORCE AS A WHOLE, CONGRESS COULD REASONABLY CONCLUDE THAT A
STABILIZATION SCHEME WHICH EXCLUDED SUCH EMPLOYEES FROM ITS AMBIT WOULD
BE LESS EFFECTIVE THAN ONE WHICH INCLUDED THEM.  AND, OF COURSE,
PRECISELY THE SAME REASONING MAY BE ADVANCED IN SUPPORT OF THE RESULT
IN WIRTZ AND IN UNITED STATES V. CALIFORNIA. 

YET THE DANGER TO OUR FEDERAL SYSTEMWHICH IS EMPHASIZED BY THESE
THREE CASES TAKEN TOGETHER, AS IT IS NOT BY ANY ONE TAKEN SEPARATELY,
SEEMS TO ME QUITE MANIFEST.  THE TENTH AMENDMENT, THE COURT'S OPINION
IN THIS CASE INSISTS, DOES HAVE MEANING; BUT THE CRITICAL QUESTION IS
HOW MUCH MEANING IS LEFT TO IT AND THE BASIC CONSTITUTIONAL PRINCIPLES
WHICH IT ILLUMINES.  AS STATED BY MR. JUSTICE DOUGLAS, DISSENTING IN
MARYLAND V. WIRTZ, SUPRA, AT 205: 

     " IF ALL THIS CAN BE DONE, THEN THE NATIONAL GOVERNMENT COULD

  DEVOUR THE ESSENTIALS OF STATE SOVEREIGNTY, THOUGH THAT

  SOVEREIGNTY IS ATTESTED BY THE TENTH AMENDMENT." 

I DO NOT BELIEVE THAT THE CONSTITUTION WAS INTENDED TO PERMIT THE
RESULT REACHED TODAY, AND SO I DISSENT. 

UNITED STATES V. CALIFORNIA, SUPRA, STATED A PRINCIPLE OF CONGRESS'
COMMERCE CLAUSE POWER OVER STATE ACTIVITIES WHICH WAS DEEMED
"CONTROLLING" IN MARYLAND V. WIRTZ, SUPRA, AT 198.  IT IS THUS
NECESSARY TO BEGIN THIS ANALYSIS WITH MR. CHIEF JUSTICE STONEHS OPINION
FOR A UNANIMOUS COURT IN THAT CASE.  ONE SHOULDERS A HEAVY BURDEN OF
PROOF IN SEEKING TO DEMONSTRATE THAT THAT OPINION IS ANALYTICALLY
FLAWED.  YET ITS TREATMENT OF THE ISSUE OF INTERGOVERNMENTAL IMMUNITY
IS LESS THAN SATISFACTORY, EVEN THOUGH THE CASE MAY HAVE REACHED A
SOUND RESULT UPON ITS FACTS.  THE CASE WAS DECIDED IN 1936, AT THE
BEGINNING OF WHAT MIGHT BE CALLED THE PRESENT ERA OF COMMERCE CLAUSE
LAW IN THIS COURT.  THE COURTWAS IN THE PROCESS, LATER COMPLETED IN
CASES SUCH AS NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1 (1937),
AND UNITED STATES V. DARBY, 312 U.S. 100 (1941), OF FREEING BOTH
CONGRESS AND THE STATES FROM THE ANACHRONISTIC AND DOCTRINALLY UNSOUND
CONSTRUCTIONS OF THE COMMERCE CLAUSE WHICH HAD PREVIOUSLY BEEN USED TO
DENY BOTH TO THE STATES AND TO CONGRESS AUTHORITY TO REGULATE ECONOMIC
AFFAIRS.  IT IS QUITE UNDERSTANDABLE IN THIS CONTEXT THAT THE COURT IN
UNITED STATES V. CALIFORNIA SHOULD HAVE BEEN INCLINED TO GIVE SOMEWHAT
SHORT SHRIFT TO A CLAIM OF "STATES'  RIGHTS," EVEN WHEN INVOKED BY THE
STATE ITSELF AGAINST CONGRESSIONAL AUTHORITY UNDER THE COMMERCE
CLAUSE.  THE CLAIM OF "STATES' RIGHTS" HAD SO FREQUENTLY BEEN INVOKED
IN THE PAST AS A FORM OF IUS TERTII, NOT BY A STATE BUT BY A BUSINESS
ENTERPRISE SEEKING TO AVOID CONGRESSIONAL REGULATION, THAT THE
DIFFERENT TENOR OF THE CLAIM MADE BY THE STATE OF CALIFORNIA MAY NOT
HAVE IMPRESSED THE COURT. 

THE COURT'S CALIFORNIA OPINION STATE:  THE SOVEREIGN POWER OF THE
STATES IS NECESSARILY DIMINISHED TO THE EXTENT OF THE GRANTS OF POWER
TO THE FEDERAL GOVERNMENT IN THE CONSTITUTION.  THE POWER OF A STATE TO
FIX INTRASTATE RAILROAD RATES MUST YIELD TO THE POWER OF THE NATIONAL
GOVERNMENT WHEN THEIR REGULATION IS APPROPRIATE TO THE REGULATION OF
INTERSTATE COMMERCE."  297 U.S., AT 184.  BUT THIS FAMILIAR DOCTRINE OF
THE SHREVEPORT RATE CASES, 234 U.S. 342 (1914), THAT UNDER THE
SUPREMACY CLAUSE EVEN INTRASTATE COMMERCE WHICH AFFECTS INTERSTATE
COMMERCE IS SUBJECT TO CONGRESS' OVERRIDING AUTHORITY TO REGULATE
COMMERCE, IS NOT A FULL ANSWER TO THE CLAIM OF A STATE THAT IT MAY NOT
BE REGULATED AS A STATE.  NEITHER CALIFORNIA IN THAT CASE, MARYLAND IN
WIRTZ, NOR OHIO IN THIS CASE, QUESTIONS THAT CONGRESS MAY PRE-EMPT
STATE REGULATORY AUTHORITY IN AREAS WHERE BOTH BODIES ARE OTHERWISE
COMPETENT TO ACT.  BUT THIS WELL-RECOGNIZED PRINCIPLE OF THE SUPREMACY
CLAUSE IS TRADITIONALLY ASSOCIATED WITH FEDERAL REGULATION OF PERSONS
OR ENTERPRISES, RATHER THAN WITH FEDERAL REGULATION OF THE STATE
ITSELF, AND IT IS DIFFICULT TO UNDERSTAND HOW IT SUPPORTS THE
PROPOSITION THAT THE STATES ARE WITHOUT A CONSTITUTIONAL COUNTERWEIGHT
WHICH CAN LIMIT CONGRESS'  EXERCISE AGAINST THEM OF ITS COMMERCE
POWER. 

THE COURT IN CALIFORNIA WENT ON TO CONSIDER THE ANALOGY OF
CONSTITUTIONAL IMMUNITY OF STATE INSTRUMENTALITIES FROM FEDERAL
TAXATION, BUT REJECTED IT AS "NOT ILLUMINATING."  297 U.S., AT 184. 
APPARENTLY CONCEDING THAT IF THE PRINCIPLES RELATING TO TAX IMMUNITY
WERE APPLIED, THE STATE WOULD PREVAIL, THE COURT REJECTED THEIR
RELEVANCE, SAYING: 

" BUT THERE IS NO SUCH LIMITATION UPON THE PLENARY POWER TO REGULATE
COMMERCE.  THE STATE CAN NO MORE DENY THE POWER IF ITS EXERCISE HAS
BEEN AUTHORIZED BY CONGRESS THAN CAN AN INDIVIDUAL."  ID., AT 185. 
(EMPHASIS ADDED.) 

THE ITALICIZED STATEMENT SEEMS TO ME DEMONSTRABLY WRONG, AND I
BELIEVE IT IS RECOGNIZED AS BEING WRONG BY THE COURT'S OPINION TODAY,
WITH ITS REFERENCE TO THE FACT THAT THE TENTH AMENDMENT "IS NOT WITHOUT
SIGNIFICANCE."  ANTE, AT 547 N. 7.  IN EXPLAINING WHY IT IS WRONG, IT
IS USEFUL TO EXPLORE FURTHER THE SITUATION OF AN INDIVIDUAL CONFRONTED
WITH COMMERCE CLAUSE REGULATION.  SUCH AN INDIVIDUAL WHO ATTACKS AN ACT
OF CONGRESS ON THE GROUND THAT IT IS NOT WITHIN CONGRESSIONAL AUTHORITY
UNDER THE COMMERCE CLAUSE ASSERTS ONLY A CLAIM OF LACK OF LEGISLATIVE
POWER.  UNDER CASES SUCH AS THE SHREVEPORT RATE CASES, SUPRA, WICKARD
V. FILBURN, 317 U.S. 111 (1942), AND HEART OF ATLANTA MOTEL INC. V.
UNITED STATES, 379 U.S. 241 (1964), THIS INDIVIDUAL'S CLAIM IS
ORDINARILY VERY DIFFICULT TO SUSTAIN.  BUT AN INDIVIDUAL WHO ATTACKS AN
ACT OF CONGRESS, JUSTIFIED UNDER THE COMMERCE CLAUSE, ON THE GROUND
THAT IF INFRINGES HIS RIGHTS UNDER, SAY,THE FIRST OR FIFTH AMENDMENT,
IS ASSERTING AN AFFIRMATIVE CONSTITUTIONAL DEFENSE OF HIS OWN, ONE
WHICH CAN LIMIT THE EXERCISE OF POWER WHICH IS OTHERWISE EXPRESSLY
DELEGATED TO CONGRESS.  THAT THE LATTER CLAIM IS OF GREATER FORCE, AND
MAY SUCCEED WHEN THE FORMER WILL FAIL, IS WELL ESTABLISHED.  SEE, E.G.,
LEARY V. UNITED STATES, 395 U.S. 6 (1969); UNITED STATES V. JACKSON,
390 U.S. 570 (1968); UNITED STATES V. CARDIFF, 344 U.S. 174 (1952); TOT
V. UNITED STATES, 319 U.S. 463 (1943). 

IN THIS CASE, AS WELL AS IN WIRTZ AND UNITED STATES V. CALIFORNIA,
THE STATE IS NOT SIMPLY ASSERTING AN ABSENCE OF CONGRESSIONAL
LEGISLATIVE AUTHORITY, BUT RATHER IS ASSERTING AN AFFIRMATIVE
CONSTITUTIONAL RIGHT, INHERENT IN ITS CAPACITY AS A STATE, TO BE FREE
FROM SUCH CONGRESSIONALLY ASSERTED AUTHORITY.  WHETHER SUCH A CLAIM ON
THE PART OF A STATE SHOULD PREVAIL AGAINST CONGRESSIONAL AUTHORITY IS
QUITE A DIFFERENT QUESTION, BUT IT IS SURELY NO ANSWER TO THE CLAIM TO
SAY THAT A "STATE CAN NO MORE DENY THE POWER IF ITS EXERCISE HAS BEEN
AUTHORIZED BY CONGRESS THAN CAN AN INDIVIDUAL."  UNITED STATES V.
CALIFORNIA, SUPRA, AT 185.  SUCH AN ANSWER IS SIMPLY A DENIAL OF THE
INHERENT AFFIRMATIVE CONSTITUTIONAL LIMITATION ON CONGRESSIONAL POWER
WHICH I BELIEVE THE STATES POSSESS. 

IT IS NOT APPARENT TO ME WHY A STATE'S IMMUNITY FROM THE PLENARY
AUTHORITY OF THE NATIONAL GOVERNMENT TO TAX, UNITED STATES V. BUTLER,
297 U.S. 1 (1936), SHOULD HAVE BEEN THOUGHT BY THE CALIFORNIA COURT TO
BE ANY HIGHER ON THE SCALE OF CONSTITUTIONAL VALUES THAN IS A STATE'S
CLAIM TO BE FREE FROM THE IMPOSITION OF CONGRESS' PLENARY AUTHORITY
UNDER THE COMMERCE CLAUSE.  ESPECIALLY IS THIS TRUE BECAUSE THE
IMMUNITY FROM TAXATION HAS NO EXPLICIT CONSTITUTIONAL SOURCE AND
APPEARS TO REST SOLELY ON A CONCEPT OF CONSTITUTIONAL FEDERALISM WHICH
SHOULD LIKEWISE LIMIT FEDERAL POWER UNDER THE COMMERCE CLAUSE.  INDEED,
IF HISTORY AND PRECEDENT OFFERED NO GUIDE, I WOULD THINK AS A MATTER OF
LOGIC THAT IT WOULD BE LESS OF AN ENCUMBERANCE UPON A STATE TO PAY A
NON-DISCRIMINATORY TAX IMPOSED BY THE FEDERAL GOVERNMENT THAN IT WOULD
BE TO COMPLY WITH NONDISCRIMINATORY REGULATION ENACTED BY THAT
GOVERNMENT.  WHERE THE FEDERAL GOVERNMENT SEEKS ONLY REVENUE FROM THE
STATE, THE STATE MAY PROVIDE THE REVENUE AND MAKE UP THE DIFFERENCE
WHERE IT CHOOSES AMONG ITS SOURCES OF REVENUE OR DEMANDS FOR
EXPENDITURE.  BUT WHERE THE FEDERAL GOVERNMENT SEEKS NOT MERELY TO
COLLECT REVENUE AS SUCH, BUT TO REQUIRE THE STATE TO PAY OUT ITS MONEYS
TO INDIVIDUALS AT PARTICULAR RATES, NOT MERELY STATE REVENUES BUT ALSO
STATE POLICY CHOICES SUFFER. 

MUCH OF THE LAW OF INTERGOVERNMENTAL TAX IMMUNITY TO WHICH THE COURT
REFERRED IN UNITED STATES V. CALIFORNIA, SUPRA, HAS GONE THE WAY OF ALL
FLESH, AND THE SCOPE OF THE THEN-PREVALENT DOCTRINE THAT THE FEDERAL
GOVERNMENT MIGHT NOT IMPOSE A TAX ON AN "INSTRUMENTALITY" OF A STATE
WAS SHORTLY MODIFIED.  SEE GRAVES V. NEW YORK EX REL. O' KEEFE, 306
U.S. 466 (1939), WHICH MADE CLEAR THAT TODAY'S CONGRESS MAY IMPOSE AN
INCOME TAX ON STATE EMPLOYEES.  /1/ SEVERAL YEARS AFTER THE GRAVES
DECISION, HOWEVER, THE COURT HAD OCCASION TO DISCUSS THE QUESTION OF
INTERGOVERNMENTAL TAX IMMUNITY IN NEW YORK V. UNITED STATES, 326 U.S.
572 (1946).  THERE WAS NO OPINION FOR THE COURT; MR. JUSTICE
FRANKFURTER, JOINED BY MR. JUSTICE RUTLEDGE, DELIVERED THE JUDGMENT OF
THE COURT AND AN OPINION STATING THAT WITH LIMITED EXCEPTATIONS THE
FEDERAL TAXING POWER COULD BE IMPOSED ON A STATE SO LONG AS IT WAS NOT
EXCERCISED IN A DISCRIMINATORY MANNER.  BUT A MAJORITY OF THE COURT
REFUSED TO ADOPT THIS FORMULATION OF THE TEST.  MR. CHIEF JUSTICE
STONE, WHO WAS THE AUTHOR OF THE COURT'S OPINION IN UNITED STATES V.
CALIFORNIA, SUPRA, SPOKE FOR HIMSELF, MR. JUSTICE REED, MR. JUSTICE
MURPHY, AND MR. JUSTICE BURTON IN STATING THAT "WE ARE NOT PREPARED TO
SAY THAT THE NATIONAL GOVERNMENT MAY CONSTITUTIONALLY LAY A NON
DISCRIMINATORY TAX ON EVERY CLASS OF PROPERTY AND ACTIVITIES OF STATES
AND INDIVIDUALS ALIKE."  326 U.S., AT 586.  RM. JUSTICE DOUGLAS, JOINED
BY MR. JUSTICE BLACK, DISSENTED OUTRIGHT, AND THOUGHT THAT THE
AUTHORITY OF CONGRESS TO TAX REVENUES OBTAINED BY NEW YORK FROM THE
BUSINESS OF SELLING ITS MINERAL WATER COULD NOT BE CONSTITUTIONALLY
SUSTAINED.  THUS SIX MEMBERS OF THE COURT, AS IT WAS THEN CONSTITUTED,
THOUGHT THAT THE PRINCIPLES OF FEDERALISM REFLECTED IN THE TENTH
AMENDMENT TO THE CONSTITUTION DID NOT STOP WITH MERELY PROHIBITING
CONGRESS FROM DISCRIMINATING BETWEEN STATES AND OTHER TAXABLE ENTITIES
IN THE EXERCISE OF ITS TAXING POWER. 

IN CONCURRING OPINION, MR. CHIEF JUSTICE STONE EXPRESSED THE MATTER
AS FOLLOWS: 

"(A) FEDERAL TAX WHICH IS NOT DISCRIMINATORY AS TO THE SUBJECT
MATTER MAY NEVERTHELESS SO AFFECT THE STATE, MERELY BECAUSE IT IS A
STATE THAT IS BEING TAXED, AS TO INTERFERE UNDULY WITH THE STATE'
PERFORMANCE OF ITS SOVEREIGN FUNCTIONS OF GOVERNMENT.  THE COUNTERPART
OF SUCH UNDUE INTERFERENCE HAS BEEN RECOGNIZED SINCE MARSHALL'S DAY AS
THE IMPLIED IMMUNITY OF EACH OF THE DUAL SOVEREIGNTIES OF OUR
CONSTITUTIONAL SYSTEM FROM TAXATION BY OTHER.  . . . 

     ". . . (IT IS PLAIN THAT THERE MAY BE NON-DISCRIMINATORY TAXES

  WHICH, WHEN LAID ON A STATE, WOULD NEVERTHELESS IMPAIR THE

SOVEREIGN STATUS OF THE STATE QUITE AS MUCH AS A LIKE TAX IMPOSED

  BY A STATE ON PROPERTY OR ACTIVITIES OF THE NATIONAL GOVERNMENT. 

  MAYO V. UNITED STATES, 319 U.S. 441, 447 - 448.  THIS IS NOT

  BECAUSE THE TAX CAN BE REGARDED AS DISCRIMINATORY BUT BECAUSE A

  SOVEREIGN GOVERNMENT IS THE TAXPAYER, AND THE TAX, EVEN THOUGH

  NON-DISCRIMINATORY, MAY BE REGARDED AS INFRINGING ITS

  SOVEREIGNTY."  326 U.S., AT 587. 

THE COURT'S DECISION IN HANS V. LOUISIANA, 134 U.S. 1 (1890), OFFERS
IMPRESSIVE AUTHORITY FOR THE PRINCIPLE THAT THE STATES AS SUCH WERE
REGARDED BY THE FRAMERS OF THE CONSTITUTION AS PARTAKING OF MANY
ATTRIBUTES OF SOVEREIGNTY QUITE APART FROM THE PROVISIONS OF THE TENTH
AMENDMENT.  THE FAMILIAR HISTORY OF THIS COURT'S DECISION IN CHISHOLM
V. GEOGIA, 2 DALL.  419 (1793), AND THE SUBSEQUENT REACTION WHICH GAVE
RISE TO THE ENACTMENT OF THE ELEVENTH AMENDMENT, HAS BEEN TOLD AND
RETOLD.  MONACO V. MISSISSIPPI, 292 U.S. 313, 323 - 325 (1934); EDELMAN
V. JORDAN, 415 U.S. 651, 660 - 662 (1974).  BUT THE ELEVENTH AMENDMENT
BY ITS TERMS FORBADE THE FEDERAL COURTS ONLY TO ENTERTAIN SUITS BY THE
CITIZENS OF ONE STATE AGAINST ANOTHER STATE.  HANS V. LOUISIANA
INVOLVED A SUIT BY CITIZENS OF LOUISIANA AGAINST LOUISIANA, AND WAS
THEREFORE NOT WITHIN THE LITERAL LANGUAGE OF THE ELEVENTH AMENDMENT. 
NEVERTHELESS THIS COURT, AFTER CANVASSING THE UNDERSTANDING OF THE
FRAMERS OF THE CONSTITUTION AND THE CONTROVERSIAL DECISION IN CHISHOLM,
UNANIMOUSLY CONCLUDED THAT SUCH AN ACTION WOULD NOT LIE, SAYING: 

     " IT IS NOT NECESSARY THAT WE SHOULD ENTER UPON AN EXAMINATION

OF THE REASON OR EXPEDIENCY OF THE RULE WHICH EXEMPTS A SOVEREIGN

  STATE FROM PROSECUTION IN A COURT OF JUSTICE AT THE SUIT OF

  INDIVIDUALS.  THIS IS FULLY DISCUSSED BY WRITERS ON PUBLIC LAW. 

  IT IS ENOUGH FOR US TO DECLARE ITS EXISTENCE."  134 U.S., AT 21. 

AS IT WAS NOT THE ELEVENTH AMENDMENT BY ITS TERMS WHICH JUSTIFIED
THE RESULT IN HANS, IT IS NOT THE TENTH AMENDMENT BY ITS TERMS THAT
PROHIBITS CONGRESSIONAL ACTION WHICH SETS A MANDATORY CEILING ON THE
WAGES OF ALL STATE EMPLOYEES.  BOTH AMENDMENTS ARE SIMPLY EXAMPLES OF
THE UNDERSTANDING OF THOSE WHO DRAFTED AND RATIFIED THE CONSTITUTION
THAT THE STATES WERE SOVEREIGN IN MANY RESPECTS, AND THAT ALTHOUGH
THEIR LEGISLATIVE AUTHORITY COULD BE SUPERSEDED BY CONGRESS IN MANY
AREAS WHERE CONGRESS WAS COMPETENT TO ACT, CONGRESS WAS NONTHELESS NOT
FREE TO DEAL WITH A STATE AS IF IT WERE JUST ANOTHER INDIVIDUAL OR
BUSINESS ENTERPRISE SUBJECT TO REGULATION. 

I WOULD HOLD THAT THE ACTIVITY OF THE STATE OF CALIFORNIA IN OPERATING
A RAILROAD WAS SO UNLIKE THE TRADITIONAL GOVERNMENTAL ACTIVITIES OF A
STATE THAT CONGRESS COULD SUBJECT IT TO THE FEDERAL SAFETY APPLIANCE
ACT.  BUT THE OPERATION OF SHCOOLS, HOSPITALS, AND LIKE FACILITIES
INVOLVED IN MARYLAND V. WIRTZ IS AN ACTIVITY SUFFICIENTLY CLOSELY
ALLIED WITH TRADITIONAL STATE FUNCTIONS THAT THE WAGES PAID BY THE
STATE TO EMPLOYEES OF SUCH FACILITIES SHOULD BE BEYOND CONGRESS'
COMMERCE AUTHORITY.  SUCH A DISTINCTION WOULD UNDOUBTEDLY PRESENT GRAY
AREAS TO BE MARKED OUT ON A CASE-BY-CASE BASIS, AAS IS TRUE IN APPLYING
ANY NUMBER OF OTHER CONSTITUTIONAL PRINCIPLES.  BUT TODAY'S CASE, IN
WHICH ACROSS-THE-BOARD WAGE AND SALARY CEILINGS ARE SUSTAINED WITH
RESPECT TO VIRTUALLY ALL STATE EMPLOYEES, IS CLEARLY ON THE FORBIDDEN
SIDE OF THAT LINE.  /2/     CONGRESS MAY WELL IN TIME OF DECLARED WAR
HAVE EXTRAORDINARY AUTHORITY TO REGULATE ACTIVITIES IN THE NATIONAL
INTEREST WHICH COULD NOT BE REACHED BY THE COMMERCE POWER ALONE.  CF.
YAKUS V. UNITED STATES, 321 U.S. 414 (1944).  CONGRESS MAY WELL BE
EMPOWERED UNDER THE LEGISLATIVE AUTHORITY GRANTED TO IT BY THE
FOURTEENTH AND FIFTEENTH AMENDMENTS TO THE CONSTITUTION TO IMPOSE
SIGNIFICANT RESTRICTIONS ON WHAT WOULD OTHERWISE BE THOUGHT STATE
PREROGATIVES.  SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301 (1966).  BUT
I DO NOT BELIEVE THAT THE COMMERCE CLAUSE ALONE IS SUFFICIENT TO
SUSTAIN THE BROAD AND SWEEPING FEDERAL REGULATION OF THE MAXIMUM
SALARIES WHICH OHIO MAY PAY ITS EMPLOYEES, NOR DO I BELIEVE THAT THE
SHOWING OF NATIONAL EMERGENCY MADE HERE IS SUFFICIENT TO MAKE THIS CASE
ONE IN WHICH CONGRESSIONAL AUTHORITY MAY BE DERIVED FROM SOURCES OTHER
THAN THE COMMERCE CLAUSE. 

THE OVERRULING OF A CASE SUCH AS MARYLAND V. WIRTZ QUITE OBVIOUSLY
SHOULD NOT BE LIGHTLY UNDERTAKEN.  BUT WE HAVE THE AUTHORITY OF MR.
CHIEF JUSTICE TANEY, DISSENTING, IN THE PASSENGER CASES, 7 HOW.  283,
470 (1849), OF MR. JUSTICE BRANDEIS, DISSENTING, IN BURNET V. CORONADO
OIL & GAS CO., 285 U.S. 393, 405 - 411 (1932), AND OF MR. JUSTICE
DOUGLAS, DISSENTING, IN NEW YORK V. UNITED STATES, 326 U.S., AT 590 -
591, FOR THE PROPOSITION THAT IMPORTANT DECISIONS OF CONSTITUTIONAL LAW
ARE NOT SUBJECT TO THE SAME COMMAND OF STARE DECISIS AS ARE DECISIONS
OF STATUTORY QUESTIONS.  SURELY THERE CAN BE NO MORE FUNDAMENTAL
CONSTITUTIONAL QUESTION THAN THAT OF THE INTENTION OF THE FRAMERS OF
THE CONSTITUTION AS TO HOW AUTHORITY SHOULD BE ALLOCATED BETWEEN THE
NATIONAL AND STATE GOVERNMENTS.  I BELIEVE THAT RE-EXAMINATION OF THE
ISSUE DECIDED IN MARYLAND V. WIRTZ WOULD LEAD US TO THE CONCLUSION THAT
THE JUDGMENT OF THE TEMPORARY EMERGENCY COURT OF APPEALS IN THIS CASE
SHOULD BE REVERSED. 

/1/ IT MAY SEEM BUT A SHORT STEP FROM CONGRESS' REQUIRING THE
EMPLOYEE OF A STATE TO PAY A PERCENTAGE OF HIS SALARY TO THE FEDERAL
GOVERNMENT IN THE FORM OF AN INCOME TAX, ON THE ONE HAND, TO CONGRESS'
USING ITS COMMERCE CLAUSE AUTHORITY TO DIRECT THE STATE TO PAY ITS
EMPLOYEES NO MORE THAN A CERTAIN AMOUNT OF MONEY IN THE FORM OF
SALARIES AND WAGES.  BUT ROUGH SIMILARITIES IN PRACTICAL EFFECT DO NOT
NECESSARILY LEAD TO SIMILAR HOLDINGS ON THE QUESTION OF CONSTITUTIONAL
POWER.  WHERE CONGRESS TAXES THE INCOME OF A STATE EMPLOYEE, ITS
COMMAND IS ADDRESSED TO THE EMPLOYEE ALONE AFTER HE HAS PERFORMED HIS
WORK FOR THE STATE AND RECEIVED HIS PAY THEREFOR.  UNDER THE
REGULATIONS WHICH THE COURT UPHOLDS TODAY, THE STATE OF OHIO IS ITSELF
TOLD THAT IT MAY NOT PAY MORE THAN SPECIFIED AMOUNTS TO ITS VARIOUS
EMPLOYEES.  THOUGH THE ECONOMIC EFFECT OF THE TWO MEASURES ON THE STATE
MAY BE IN SOME RESPECTS SIMILAR, THE FACT THAT THE COMMAND OF CONGRESS
OPERATES DIRECTLY UPON THE STATE IN THE LATTER SITUATION IS OF
SIGNIFICANCE IN A SYSTEM OF CONSTITUTIONAL FEDERALISM SUCH AS OURS. 
THE COURT IN HELVERINGV.  GERHARDT, 304 U.S. 405, 424 (1938), WAS
CAREFUL TO DISTINGUISH BETWEEN THE IMPOSITION OF A FEDERAL INCOME TAX
ON THE NEW YORK PORT AUTHORITY, A QUESTION WHICH IT RESERVED, AND SUCH
A TAX UPON AN EMPLOYEE OF THE AUTHORITY, WHICH IT DECIDED IN FAVOR OF
TAXABILITY. 

/2/ AS NOTED EARLIER IN THIS DISSENT, THE GOVERNMENT CONTENDS THAT
UNITED STATES V. CALIFORNIA, 297 U.S. 175 (1936), MAKES IT IMPOSSIBLE
TO DISTINGUISH WIRTZ ON THE BASIS THAT THE EMPLOYEES IN THAT CASE WERE
PERFORMING PRIMARILY "PROPRIETARY" FUNCTIONS.  CALIFORNIA MAY CERTAINLY
BE READ AS REJECTING NOT ONLY THIS DISTINCTION, BUT ALSO ANY OTHER
AMONG ACTIVITIES CONDUCTED BY A STATE, AND AS ENUNCIATING A RULE THAT
ALL STATE ACTIVITIES MAY BE REGULATED BY CONGRESS.  BUT SUCH A SWEEPING
DOCTRINE IS REJECTED EVEN BY THE COURT'S PRESENT OPINION, WHICH IF IT
MEANS WHAT IT SAYS MUST CONCEDE THAT A LINE WILL HAVE TO BE DRAWN
SOMEWHERE.  IT IS CONCEIVABLE THAT THE TRADITIONAL DISTINCTION BETWEEN
"GOVERNMENTAL" AND "PROPRIETARY" ACTIVITIES MIGHT IN SOME FORM PROVE
USEFUL IN SUCH LINE DRAWING.  THE DISTINCTION SUGGESTED IN NEW YORK V.
UNITED STATES, 326 U.S. 572 (1946), BETWEEN ACTIVITIES TRADITIONALLY
UNDERTAKEN BY THE STATE AND OTHER ACTIVITIES, MIGHT ALSO BE OF SERVICE,
ALTHOUGH IT TOO WAS SPECIFICALLY REJECTED IN CALIFORNIA.  SEE 297 U.S.,
AT 185.  HERE, OF COURSE, IT IS UNNECESSARY TO ENGAGE IN THE BUSINESS
OF LINE DRAWING, SINCE THE REGULATION IN QUESTION SWEEPS WITHIN ITS
AMBIT VIRTUALLY ALL STATE EMPLOYEES REGARDLESSOF THEIR TASKS. 

JOHN A. BROWN ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

JEWELL S. LAFONTANT ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL HILLS,
DEPUTY SOLICITOR GENERAL FRIEDMAN, WILLIAM L. PATTON, AND WILLIAM G.
KANTER. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL WILLARD A. SHANK, ASSISTANT ATTORNEY GENERAL,
AND TALMADGE R. JONES, DEPUTY ATTORNEY GENERAL, FOR THE STATE OF
CALIFORNIA; BY WILLIAM J. BROWN, ATTORNEY GENERAL, ROBERT B. MEANY,
ASSISTANT ATTORNEY GENERAL, AND JAMES A. LAURENSON FOR THE STATE OF
OHIO; BY JOHN C. DANFORTH, ATTORNEY GENERAL, AND GENE E. VOIGTS FOR THE
STATE OF MISSOURI; BY LOREN E. MC MASTER FOR THE CALIFORNIA STATE
EMPLOYEES' ASSN.; AND BY STEPHEN S. BOYNTON FOR THE ASSEMBLY OF
GOVERNMENTAL EMPLOYEES. 

A.L. ZWERDLING, ROBERT H. CHANIN, AND GEORGE KAUFMANN FILED A BRIEF
FOR THE COALITION OF AMERICAN PUBLIC EMPLOYEES AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :















UNITED STATES V. WILSON, 421 U.S. 309 


       UNITED STATES V. WILSON ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

        NO. 73 - 1162.  ARGUED DECEMBER 17, 1974--DECIDED MAY 19,

           1975; 488 F.2D 1231, REVERSED. 


    RESPONDENTS, WHO HAD BEEN CHARGED, ALONG WITH ONE ANDERSON, IN

  SEPARATE INDICTMENTS FOR SEPARATE BANK ROBBERIES AND WHO PLEADED

  GUILTY, WERE SUMMONED AS PROSECUTION WITNESSES AT ANDERSON'S

  TRIAL BUT REFUSED TO TESTIFY ON FIFTH AMENDMENT GROUNDS AND STILL

  REFUSED TO DO SO AFTER BEING GRANTED IMMUNITY AND ORDERED TO

  TESTIFY.  THE DISTRICT COURT THEN SUMMARILY HELD THEM IN CONTEMPT

  UNDER FED. RULE CRIM. PROC. 42(A), WHICH PERMITS SUMMARY CRIMINAL

CONTEMPT PUNISHMENT "IF THE JUDGE CERTIFIES THAT HE SAW OR HEARD

  THE CONDUCT CONSTITUTING THE CONTEMPT AND THAT IT WAS COMMITTED

  IN THE ACTUAL PRESENCE OF THE COURT."  THE COURT OF APPEALS

  REVERSED, HOLDING THAT THE USE OF THE SUMMARY CONTEMPT POWER

  UNDER RULE 42(A) WAS IMPROPER, AND REMANDED FOR PROCEEDINGS UNDER

  RULE 42(B), WHICH CALLS FOR DISPOSITION OF CRIMINAL CONTEMPT ONLY

  AFTER NOTICE AND HEARING AND "A REASONABLE TIME FOR THE

  PREPARATION OF THE DEFENSE."  HELD:  THE DISTRICT COURT PROPERLY

  IMPOSED SUMMARY CONTEMPT PUNISHMENT UNDER THE CIRCUMSTANCES. 

HARRIS V. UNITED STATES, 382 U.S. 162, DISTINGUISHED.  PP. 314 -

  319. 

     (A) RESPONDENTS' REFUSALS TO ANSWER, ALTHOUGH NOT DELIVERED

  DISRESPECTFULLY, FALL WITHIN RULE 42(A)'S EXPRESS LANGUAGE, AND

  PLAINLY CONSTITUTE CONDUCT CONTEMPTUOUS OF JUDICIAL AUTHORITY,

  SINCE THEY WERE INTENTIONAL OBSTRUCTIONS OF COURT PROCEEDINGS

  THAT LITERALLY DISRUPTED THE PROGRESS OF THE TRIAL AND HENCE THE

  ORDERLY ADMINISTRATION OF JUSTICE.  PP. 314 - 316. 

     (B) THE FACE-TO-FACE REFUSAL TO COMPLY WITH THE COURT'S ORDER

ITSELF CONSTITUTED AN AFFRONT TO THE COURT, AND WHEN THAT KIND OF

  REFUSAL DISRUPTS AND FRUSTRATES AN ONGOING TRIAL, AS IT DID HERE,

  SUMMARY CONTEMPT MUST BE AVAILABLE TO VINDICATE THE COURT'S

  AUTHORITY AS WELL AS TO PROVIDE THE RECALCITRANT WITNESS WITH

  SOME INCENTIVE TO TESTIFY.  P. 316. 

     (C) HARRIS V. UNITED STATES, SUPRA, INVOLVED A REFUSAL TO

  ANSWER BEFORE A GRAND JURY WHERE, UNLIKE AN ONGOING TRIAL, TIME

  GENERALLY IS NOT OF THE ESSENCE BECAUSE THE GRAND JURY MAY TURN

  TO OTHER MATTERS DURING ANY DELAY.  PP. 318 - 319. 

     BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  STEWART, WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 

  BLACKMUN, J., FILED A CONCURRING OPINION, IN WHICH REHNQUIST, J.,

  JOINED, POST, P. 320.  BRENNAN, J., FILED A DISSENTING OPINION,

  IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED, POST, P. 322. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO DECIDE WHETHER A DISTRICT COURT MAY IMPOSE
SUMMARY CONTEMPT PUNISHMENT UNDER FED. RULE CRIM. PROC. 42(A) /1/ WHEN
A WITNESS WHO HAS BEEN GRANTED IMMUNITY, REFUSES ON FIFTH AMENDMENT
GROUNDS TO TESTIFY.  THE COURT OF APPEALS HELD THAT IN SUCH
CIRCUMSTANCES A JUDGE CANNOT DISPOSE OF THE CONTEMPT SUMMARILY, BUT
MUST PROCEED UNDER RULE 42(B), /2/ WHICH CALLS FOR DISPOSITION ONLY
AFTER NOTICE AND HEARING, AND "A REASONABLE TIME FOR THE PREPARATION OF
THE DEFENSE." 

  I 

RESPONDENTS WILSON AND BRYAN, ALONG WITH ONE ROBERT ANDERSON, WERE
CHARGED IN SEPARATE INDICTMENTS WITH SEPARATE BANK ROBBERIES. 
RESPONDENT WILSON, AND ANDERSON, WERE CHARGED WITH ARMED ROBBERY OF A
BANK IN TUXEDO, NEW YORK.  RESPONDENT BRYAN, AND ANDERSON, WERE CHARGED
WITH ARMED ROBBERY OF A BANK IN MOUNT IVY, NEW YORK.  PRIOR TO
ANDERSON'S TRIAL BOTH RESPONDENTS PLEADED GUILTY TO CHARGES AGAINST
THEM, BUT NEITHER WAS IMMEDIATELY GIVEN A FINAL SENTENCE.  SENTENCING
OF WILSON WAS DEFERRED, AND, PENDING A PRESENTENCE REPORT, BRYAN WAS
GIVEN A PROVISIONAL 25-YEAR SENTENCE, AS REQUIRED BY 18 U.S.C. SEC.
4208(B), (C). 

AT ANDERSON'S TRIAL FOR THE TWO ROBBERIES, RESPONDENTS WERE SUMMONED
AS WITNESSES FOR THE PROSECUTION.  WHEN QUESTIONED, HOWEVER, EACH
REFUSED TO TESTIFY, CONTENDING THAT HIS ANSWERS MIGHT INCRIMINATE HIM. 
THE JUDGE THEN GRANTED THEM IMMUNITY, 18 U.S.C. SEC. 6002 - 6003, /3/
AND, RELYING ON GOLDBERG V. UNITED STATES, 472 F.2D 513 (CA2 1973),
ORDERED THEM TO ANSWER FORTHWITH.  HE INFORMED THEM THAT AS LONG AS
THEY DID NOT LIE UNDER OATH THEY COULD NOT BE PROSECUTED BY REASON OF
ANY TESTIMONY, BUT THAT IF THEY CONTINUED TO REFUSE TO ANSWER HE WOULD
HOLD THEM IN CONTEMPT.  RESPONDENTS NEVERTHELESS PERSISTED IN THEIR
REFUSALS, AND THE JUDGE SUMMARILY HELD THEM IN CONTEMPT.  COUNSEL FOR
WILSON, WHO ACTED FOR BOTH RESPONDENTS, ARGUED FOR LENIENT SENTENCES;
HOWEVER, TRIAL COUNSEL MADE NO OBJECTION TO THE SUMMARY NATURE OF THE
CONTEMPT CITATION, /4/  NOR WAS ANY CLAIM MADE THAT MORE TIME WAS
NEEDED TO PREPARE A DEFENSE TO THE CONTEMPT CITATION. 

BOTH RESPONDENTS WERE THEN SENTENCED TO SIX MONTHS' IMPRISONMENT,
CONSECUTIVE TO ANY SENTENCES IMPOSED FOR THE BANK ROBBERIES.  THE JUDGE
MADE IT CLEAR THAT HE WOULD CONSIDER REDUCING THE CONTEMPT SENTENCES,
OR ELIMINATING THEM COMPLETELY, IF RESPONDENTS DECIDED TO TESTIFY. 
WHEN COUNSEL POINTED OUT THAT A PRESENTENCE STUDY WAS BEING PREPARED ON
BRYAN THE JUDGE RESPONDED:  " I AM GOING TO IMPOSE THE MAXIMUM . . .
WITH THE DELIBERATE INTENTION OF REVISING THAT SENTENCE TO WHAT MIGHT
BE APPROPRIATE IN LIGHT OF THE VERY STUDY THAT IS GOING TO BE MADE." 
APP.  33. 

THE TRIAL PROCEEDED, BUT WITHOUT BRYAN'S TESTIMONY THE EVIDENCE
AGAINST ANDERSON ON THE MOUNT IVY ROBBERY WAS SUCH THAT AT THE END OF
THE GOVERNMENT'S CASE THE JUDGE GRANTED ANDERSON'S MOTION FOR
ACQUITTAL.  THE JURY WAS UNABLE TO REACH A VERDICT ON THE TUXEDO
ROBBERY.  AT A LATER TRIAL ANDERSON WAS CONVICTED OF THAT ROBBERY. 

RESPONDENTS APPEALED THEIR CONTEMPT CONVICTIONS.  THE COURT OF
APPEALS REJECTED THE CLAIM THAT THEIR FIFTH AMENDMENT RIGHTS WOULD HAVE
BEEN VIOLATED BY COMPELLING THEM TO TESTIFY AFTER THEY HAD BEEN GRANTED
IMMUNITY, BUT IT ACCEPTED THEIR CONTENTION THAT USE OF THE SUMMARY
CONTEMPT POWER WAS IMPROPER, AND IT REMANDED FOR PROCEEDINGS UNDER RULE
42(B).  488 F.2D 1231 (CA2 1973).  THE COURT REASONED THAT "(IF. . .
COUNSEL HAD BEEN GIVEN 'A REASONABLE TIME FOR THE PREPARATION OF THE
DEFENSE,' FED. R. CRIM. P. RULE 42 (B), SHE MIGHT HAVE MARSHALLED AND
PRESENTED FACTS IN MITIGATION OF THE CHARGE."  ID., AT 1234.  /5/ 

IN REQUIRING RULE 42(B) DISPOSITION OF THE COURT OF APPEALS
CONSIDERED ITSELF BOUND BY ITS OWN PREVIOUS DECISIONS, AND BY THIS
COURT'S DECISION IN HARRIS V. UNITED STATES, 382 U.S. 162 (1965).  IN A
PREVIOUS CASE THE COURT OF APPEALS HAD HELD: 

" SUMMARY DISPOSITION IS THUS AVAILABLE ONLY WHEN IMMEDIATE
PUNISHMENT IS NECESSARY TO PUT AN END TO ACTS DISRUPTING THE
PROCEEDINGS, SUCH AS THREATS TO THE JUDGE, DISTURBANCES IN THE
COURTROOM OR INSOLENCE BEFORE THE COURT.  IT IS NOT A REMEDY TO BE USED
IN A CASE LIKE THIS WHERE THE COMTEMPT CONSISTS OF NO MORE THAN ORDERLY
REFUSAL IN THE ABSENCE OF THE JURY TO ANSWER A QUESTION ON FIFTHE
AMENDMENT GROUNDS . . . ."  UNITED STATES V. PAGE, 371 F.2D 810, 811
(CA2 1967).  IN ANOTHER CASE THE COURT OF APPEALS HAD INTERPRETED THE
LANGUAGE OR OUR HARRIS DECISION TO REQUIRE THAT "(ABSENT . . .
DISRUPTIVE CONDUCT, WHICH AFFRONTS THE DIGNITY OF THE COURT, A HEARING
PURSUANT TO RULE 42(B) IS REQUIRED TO EXPLORE POSSIBLE EXCULPATORY OR
MITIGATING CIRCUMSTANCES."  UNITED STATES V. MARRA, 482 F.2D 1196, 1200
(CA2 1973).  IN THE COURT OF APPEALS' VIEW ONLY A DISORDERLY OR
OBSTREPEROUS INTERFERENCE WITH COURT PROCEEDINGS PROVIDES AN OCCASION
FOR USE OF THE SUMMARY CONTEMPT POWER.  ID., AT 1201 - 1202. 

BECAUSE OF THE IMPORTANCE OF THIS ISSUE IN THE CONDUCT OF CRIMINAL
TRIALS, AND BECAUSE THE VIEW OF THE COURT OF APPEALS FOR THE SECOND
CIRCUIT APPARENTLY CONFLICTS WITH THAT OF THE COURT OF APPEALS FOR THE
FIRST CIRCUIT, BAKER V. EISENSTADT, 456 F.2D 382, CERT. DENIED, 409
U.S. 846 (1972), WE GRANTED CERTIORARI.  416 U.S. 981 (1974).  WE
REVERSE. 

        II 

RESPONDENTS' REFUSALS TO ANSWER, ALTHOUGH NOT DELIVERED
DISRESPECTFULLY, PLAINLY FALL WITHIN THE EXPRESS LANGUAGE OF RULE
42(A), /6/ AND CONSTITUE CONTEMPTUOUS CONDUCT.  RULE 42(A) WAS NEVER
INTENDED TO BE LIMITED TO SITUATIONS WHERE A WITNESS USES SCURRILOUS
LANGUAGE, OR THREATENS OR CREATES OVERT PHYSICAL DISORDER AND THEREBY
DISRUPTS A TRIAL.  ALL THAT IS NECESSARY IS THAT THE JUDGE CERTIFY THAT
HE "SAW OR HEARD THE CONDUCT CONSTITUTING THE CONTEMPT AND THAT IT WAS
COMMITTED IN THE ACTUAL PRESENCE OF THE COURT."  RESPONDENTS DO NOT
CONTEST THAT THESE REQUIREMENTS ARE MET HERE.  INDEED, HERE EACH
REFUSAL WAS IN THE CONTEXT OF A FACE-TO-FACE ENCOUNTER BETWEEN THE
JUDGE AND RESPONDENTS.  SEE ILLINOIS V. ALLEN, 397 U.S. 337 (1973);
COOKE V. UNITED STATES, 267 U.S. 517 (1925). 

THE REFUSALS WERE CONTEMPTUOUS OF JUDICIAL AUTHORITY BECAUSE THEY
WERE INTENTIONAL OBSTRUCTIONS /7/ OF COURT PROCEEDINGS THAT LITERALLY
DISRUPTED THE PROGRESS OF THE TRIAL AND HENCE THE ORDERLY
ADMINISTRATION OF JUSTICE.  YATES V. UNITED STATES, 227 F.2D 844 (CA9
1955).  RESPONDENTS'  CONTUMACIOUS SILENCE, AFTER A VALID GRANT OF
IMMUNITY FOLLOWED BY AN EXPLICIT, UNAMBIGUOUS ORDER TO TESTIFY, IMPEDED
THE DUE COURSE OF ANDERSON'S TRIAL PERHAPS MORE SO THAN VIOLENT CONDUCT
IN THE COURTROOM.  VIOLENT DISRUPTIONS CAN BE CURED SWIFTLY BY BODILY
REMOVING THE OFFENDER FROM THE COURTROOM, OR BY PHYSICAL RESTRAINTS,
ILLINOIS V. ALLEN, SUPRA; SEE EX PARTE TERRY, 128 U.S. 289 (1888), AND
THE TRIAL MAY PROCEED.  BUT AS THIS CASE DEMONSTRATES, A CONTUMACIOUS
REFUSAL TO ANSWER NOT ONLY FRUSTRATES THE INQUIRY BUT CAN DESTROY A
PROSECUTION.  HERE IS WAS A PROSECUTION; THE SAME KIND OF CONTUMACIOUS
CONDUCT COULD, IN ANOTHER SETTING, DESTROY A DEFENDANT'S ABILITY TO
ESTABLISH A CASE. 

THE FACE-TO-FACE REFUSAL TO COMPLY WITH THE COURT'S ORDER ITSELF
CONSTITUTED AN AFFRONT TO THE COURT, /8/ AND WHEN THAT KIND OF REFUSAL
DISRUPTS AND FRUSTRATES AN ONGOING PROCEEDING, AS IT DID HERE, SUMMARY
CONTEMPT MUST BE AVAILABLE TO VINDICATE THE AUTHORITY OF THE COURT AS
WELL AS TO PROVIDE THE RECALCITRANT WITNESS WITH SOME INCENTIVE TO
TESTIFY.  IN RE CHILES, 22 WALL.  157, 168 (1875).  WHETHER SUCH
INCENTIVE IS NECESSARY IN A PARTICULAR CASE IS A MATTER THE RULE WISELY
LEAVES TO THE DISCRETION OF THE TRIAL COURT.  /9/ 

OUR CONCLUSION THAT SUMMARY CONTEMPT IS AVAILABLE UNDER THE
CIRCUMSTANCES HERE IS SUPPORTED BY THE FACT THAT RULE 42 HAS
CONSISTENTLY BEEN RECOGNIZED TO BE NO MORE THAN A RESTATEMENT OF THE
LAW EXISTING WHEN THE RULE WAS ADOPTED, BLOOM V. ILLINOIS, 391 U.S.
194, 209 (1968); NOTES OF THE ADVISORY COMMITTEE ON RULE 42 (A), 18
U.S.C. APP. P. 4513; COOKE V. UNITED STATES, 267 U.S. 517 (1925), /10/
AND THE LAW AT THAT TIME ALLOWED SUMMARY PUNISHMENT FOR REFUSALS TO
TESTIFY.  HALE V. HENKEL, 201 U.S. 43 (1906); NELSON V. UNITED STATES,
201 U.S. 92 (1906); V. BLAIR V. UNITED STATES, 250 U.S. 273 (1919). 
SEE EX PARTE HUDGINGS, 249 U.S. 378, 382 (1919); BROWN V. WALKER, 161
U.S. 591 (1896), AND CASES CITED THEREIN, CF. EX PARTE KEARNEY, 7
WHEAT.  38 (1822); IN RE SAVIN, 131 U.S. 267 (1889). 

III 

THE COURT OF APPEALS CONSIDERED ITSELF BOUND BY LANGUAGE IN HARRIS
V. UNITED STATES, 382 U.S. 162, TO HOLD RULE 42(A) INAPPLICABLE TO THE
FACTS HERE.  THE CRUCIAL DIFFERENCE BETWEEN THE CASES, HOWEVER, IS THAT
HARRIS DID NOT DEAL WITH A REFUSAL TO TESTIFY WHICH OBSTRUCTED AN
ONGOING TRIAL.  IN HARRIS A WITNESS BEFORE A GRAND JURY HAD.  BEEN
GRANTED IMMUNITY, 18 U.S.C. SEC. 6002, AND NEVERTHELESS REFUSED TO
ANSWER CERTAIN QUESTIONS.  THE WITNESS WAS THEN BROUGHT BEFORE A
DISTRICT JUDGE AND ASKED THE SAME QUESTIONS AGAIN.  WHEN HE STILL
REFUSED TO ANSWER, THE COURT SUMMARILY HELD HIM IN CONTEMPT.  WE HELD
IN THAT CASE THAT SUMMARY CONTEMPT WAS INAPPROPRIATE BECAUSE THERE WAS
NO COMPELLING REASON FOR AN INMEDIATE REMEDY. 

A GRAND JURY ORDINARILY DEALS WITH MANY INQUIRIES AND CASES AT ONE
TIME, AND IT CAN RATHER EALILY SUSPEND ACTION ON ANY ONE, AND TURN TO
ANOTHER WHILE PROCEEDINGS UNDER RULE 42(B) ARE COMPLETED.  WE NOTED IN
HARRIS THAT "SWIFTNESS WAS NOT A PREREQUISITE OF JUSTICE . . . DELAY
NECESSARY FOR A HEARING WOULD NOT IMPERIL THE GRAND JURY PROCEEDINGS." 
382 U.S.,AT 164.  TRIAL COURTS, ON THE CONTRARY, CANNOT BE EXPECTED TO
DART FROM CASE TO CASE ON THEIR CALENDARS ANY TIME A WITNESS WHO HAS
BEEN GRANTED IMMUNITY DECIDES NOT TO ANSWER QUESTIONS.  IN A TRIAL, THE
COURT, THE PARTIES, WITNESS WHO HAS BEEN GRANTED IMMUNITY DECIDES NOT
TO ANSWER QUESTIONS.  IN A TRIAL, THE COURT, THE PARTIES, WITNESSES,
AND JURORS ARE ASSEMBLED IN THE EXPECTATION THAT IT WILL PROCEED AS
SCHEDULED.  HERE THE DISTRICT JUDGE POINTED OUT THIS PROBLEM WHEN
DEFENSE COUNSEL ASKED FOR A CONTINUANCE; HE SAID:  " I THINK WE CANNOT
DELAY THIS TRIAL.  I CANNOT DELAY IT.  I HAVE MANY OTHER MATTERS THAT
ARE EQUALLY IMPORTANT TO THE PEOPLE CONCERNED IN THOSE CASES WHICH ARE
FOLLOWING."  /11/  DELAY UNDER RULE 42(B) MAY BE SUBSTANTIAL, AN ALL
ESSENTIAL PARTICIPANTS IN THE TRIAL MAY NO LONGER BE READILY AVAILABLE
WHEN A TRIAL RECONVENES.  IN HARRIS THIS COURT RECOGNIZED THESE
PROBLEMS IN NOTING THAT SUMMARY PUNISHMENT MAY BE NECESSARY WHERE A
"REFUSAL (IS) ... AN OPEN, SERIOUS THREAT TO ORDERLY PROCEDURE."  382
U.S., 165.  A REFUSAL TO TESTIFY DURING A TRIAL MAY BE SUCH AN OPEN,
SERIOUS THREAT, AND HERE IT PLAINLY CONSTITUTED A LITERAL "BREAKDOWN"
IN THE PROSECUTION'S CASE. 

        IV 

IN AN ONGOING TRIAL, WITH THE JUDGE, JURORS, COUNSEL, AND WITNESSES
ALL WAITING, RULE 42(A) PROVIDES AN APPROPRIATE REMEDIAL TOOL TO
DISCOURAGE WITNESSES FROM CONTUMACIOUS REFUSALS TO COMPLY WITH LAWFUL
ORDERS ESSENTIAL TO PREVENT A BREAKDOWN FO THE PROCEEDINGS.  WHERE TIME
IS NOT OF THE ESSENCE, HOWEVER, THE PROVISIONS OF RULE 42(B) MAY BE
MORE APPROPRIATE TO DEAL WITH CONTEMPTUOUS CONDUCT.  WE ADHERE TO THE
PRINCIPLE THAT ONLY "'(THE LEAST POSSIBLE POWER ADEQUATE TO THE END
PROPOSED'" SHOULD BE USED IN COMTEMPT CASES.  ANDERSON V. DUNN, 6
WHEAT.  204, 231 (1921).  SEE TAYLOR V. HAYES, 418 U.S. 488, 498
(1974).  AS WITH ALL POWER, THE AUTHORITY UNDER RULE 42(A) TO PUNISH
SUMMARILY CAON BE ABUSED; THE COUSTS OF APPEALS, HOWEVER, CAN DEAL WITH
ABUSES OF DISCRETION WITHOUT RESTRICTING THE RULE IN CONTRADICTION OF
ITS EXPRESS TERMS, AND WITHOUT UNDULY LIMITING THE POWER OF THE TRIAL
JUDGE TO ACT SWIFTLY AND FIRMLY TO PREVENT CONTUMACIOUS CONDUCT FROM
DISRUPTING THE ORDERLY PROGRESS OF A CRIMINAL TRIAL. 

                                  REVERSED. 

/1/ RULE 42(A) PROVIDES:  "(A) SUMMARY DISPOSITION. 

" A CRIMINAL CONTEMPT MAY BE PUNISHED SUMMARILY IF THE JUDGE
CERTIFIES THAT HE SAW OR HEARD THE CONDUCT CONSTITUTING THE CONTEMPT
AND THAT IT WAS COMMITTED IN THE ACTUAL PRESENCE OF THE COURT.  THE
ORDER OF COMTEMPT SHALL RECITE THE FACTS AND SHALL BE SIGNED BY THE
JUDGE AND ENTERED OF RECORD." 

/2/ RULE 42(B) PROVIDES:  "(B) DISPOSITION UPON NOTICE AND HEARING. 

" A CRIMINAL CONTEMPT EXCEPT AS PROVIDED IN SUBDIVISION (A) OF THIS
RULE SHALL BE PROSECUTED ON NOTICE.  THE NOTICE SHALL STATE THE TIME
AND PLACE OF HEARING, ALLOWING A REASONABLE TIME FOR THE PREPARATION OF
THE DEFENSE, AND SHALL STATE THE ESSENTIAL FACTS CONSTITUTING THE
CRIMINAL CONTEMPT CHARGED AND DESCRIGE IT AS SUCH.  THE NOTICE SHALL BE
GIVEN ORALLY BY THE JUDGE IN OPEN COURT IN THE PRESENCE OF THE
DEFENDANT OR, ON APPLICATION OF THE UNITED STATES ATTORNEY OR OF AN
ATTORNEY APPOINTED BY THE COURT FOR THAT PURPOSE, BY AN ORDER TO SHOW
CAUSE OR AN ORDER OF ARREST.  THE DEFENDANT IS ENTITLED TO A TRIAL BY
JURY IN ANY CASE IN WHICH AN ACT OF CONGRESS SO PROVIDES.  HE IS
ENTITLED TO ADMISSION TO BAIL AS PROVIDED IN THESE RULES.  IF THE
CONTEMPT CHARGED INVOLVES DISRESPTCT TO OR CRITICISM OF A JUDGE, THAT
JUDGE IS DISQUALIFIED FROM PRESIDING AT THE TRIAL OR HEARING EXCEPT
WITH THE DEFENDANT'S CONSENT.  UPON A VERDICT OR FINDING OF GUILT THE
COURT SHALL ENTER AN ORDER FIXING THE PUNISHMENT."     /3/ IN THE COURT
OF APPEALS RESPONDENTS CONTENDED THAT THE IMMUNITY GRANTED WAS NOT
COEXTENSIVE WITH THE SCOPE OF THE FIFTH AMENDMENT PRIVILEGE AGAINST
SELF-INCRIMINATION.  KASTIGAR V. UNITED STATES, 406 U.S. 441, 449
(1972).  THE COURT OF APPEALS RULED THAT RESPONDENTS HAD NOT RAISED THE
CLAIM IN A PROPER FASHION, AND RESPONDENTS DID NOT SEEK REVIEW OF THAT
CONCLUSION.  THUS NO ISSUE CONCERNING THE SCOPE OF IMMUNITY IS BEFORE
US. 

/4/ EARLIER IN THE PROCEEDING COUNSEL HAD REQUESTED A CONTINUANCE TO
STUDY WHETHER RESPONDENTS COULD BE COMPELLED TO TESTIFY AFTER A GRANT
OF IMMUNITY.  APP. 5.  THE TRIAL JUDGE DID NOT ALLOW A CONTINUANCE. 
ID., AT 6.  THE COURT OF APPEALS, HOWEVER, CONSIDERED THAT FOR PURPOSES
OF APPEAL THE REQUEST WAS SUFFICIENT OBJECTION TO THE SUMMARY CONTEMPT
CITATION.  THE GOVERNMENT DOES NOT CONTEST THAT RULING SO WE DO NOT
ADDRESS IT. 

/5/ FOR EXAMPLE, THIS COURT MENTIONED THAT RESPONDENT WILSON'S
EXPERIENCE SUGGESTED THE POSSIBILITY OF A PSYCHIATRIC DEFENSE.  WITH
TIME TO PREPARE, THE COURT OF APPEALS SAID, COUNSEL MIGHT HAVE
"ENLARGED ON THE ISSUE OF (WILSON'S) MENTAL HEALTH, AND PERHAPS SHOWN A
RELATIONSHIP BETWEEN ANY PSYCHOLOGICAL DIFFICULTIES AND THE REFUSAL TO
SERVE AS A WITNESS."  488 F.2D, AT 1234 - 1235.  THE RECORD DOES NOT
SUPPORT SUCH A DEFENSE.  ON ORDER OF THE DISTRICT COURT, WILSON HAD
BEEN GIVEN A PSHCHIATRIC EXAMINATION TO DETERMINE HIS COMPPETECY TO
STAND TRIAL.  18 U.S.C. SEC. 4244.  HE WAS FOUND COMPETENT; HOWEVER, AT
THE ANDERSON TRIAL HIS LAWYER ARGUED THAT THE EXAMINATION REVEALED
FAMILY DIFFICULTIES THAT MAY HAVE BEEN A REASON FOR HIS ANTISOCIAL
BEHAVIOR.  APP. 12 - 13.  THE DISTRICT COURT AGREED THAT FURTHER
INVESTIGATION OF WILSON'S PSYCHIATRIC PROBLEMS MIGHT BE HELPFUL FOR
SENTENCING PURPOSES.  ID., AT 12, 17.  THE RECORD DOES NOT SHOW THAT
EITHER COUNSEL OR THE DISTRICT COURT CONSIDERED FOR A MOMENT THAT
FURTHER PSYCHIATRIC INVESTIGATION MIGHT PROVIDE A DEFENSE TO THE
CONTEMPT CHARGE.  THE PSYCHIATRIC INVESTIGATION WAS TO DETERMINE
WHETHER WILSON MIGHT MORE APPROPRIATELY BE PLACED ON PROBATION WITH
PSYCHIATRIC TREATMENT RATHER THAN CONFINED IN A PRISON.  ID., AT 13,
17. 

/6/ RULE 42 APPLIES THE CONTEMPT POWER DEFINED IN 18 U.S.C. SEC. 401
SEE BESSETTE V. W.B. CONKEY CO., 194 U.S. 324, 326 - 327 (1904); EX
PARTE ROBINSON, 19 WALL.  505, 510 (1874).  THAT STATUTE PROVIDES THAT
A FEDERAL COURT HAS THE POWER TO PUNISH BY FINE OR IMPRISONMENT, AT ITS
DISCRETION, SUCH CONTEMPT OF ITS AUTHORITY AS "(M)  ISBEHAVIOR OF ANY
PERSON IN ITS PRESENCE OR SO NEAR THERETO AS TO OBSTRUCT THE
ADMINISTRATION OF JUSTICE."  THE PREDECESSOR OF THE STATUTE WAS ENACTED
TO LIMIT THE BROAD POWER GRANTED BY THE JUDICIARY ACT OF 1789, 1 STAT.
73.  NYE V. UNITED STATES, 313 U.S. 33, 45, 50 (1941).  COURTS HAD
INDISCRIMINATELY USED THE SUMMARY CONTEMPT POWER TO PUNISH PERSONS FOR
ACTS THAT OCCURRED FAR FROM THE COURT'S VIEW AND WHICH, IN TRUTH, COULD
NOT BE CONSIDERED DIRECT AFFRONTS TO ITS DIGNITY, AND OBSTRUCTIONS OF
JUSTICE.  THUS THE PHRASE "IN ITS PRESENCE OR SO NEAR THERETO" WAS
INTENDED TO APPLY A GEOGRAPHICAL LIMITATION ON THE POWER.  ID., AT 50. 
MISBEHAVIOR ACTUALLY IN THE FACE OF THE COURT REMAINED PUNISHABLE
SUMMARILY, AND THIS COURT MADE IT CLEAR THAT CONTEMPTUOUS ACTIONS
"ACTUALLY INTERUPTING THE COURT IN THE CONDUCT OF ITS BUSINESS," ID.,
AT 52, WEER SUMMARILY PUNISHABLE JUST AS "MISBEHAVIOR IN THE VICINITY
OF THE COURT DISRUPTING TO QUIET AND ORDER."  IBID. 

/7/ THE TRIAL JUDGE EXPLAINED TO RESPONDENTS THE PROTECTION ACCORDED
BY THE GRANT OF IMMUNITY AND THAT IF THEY CONTINUED IN THEIR REFUSALS
HE WOULD HOLD THEM IN CONTEMPT.  HE ALSO OFFERED THEM AN OPPORTUNITY TO
SPEAK IN THEIR OWN BEHALF.  GROPPI V. LESLIE, 404 U.S. 496, 501
(1972).  MOREOVER, THE JUDGE MADE IT CLEAR THAT HE WOULD CONSIDER
REDUCING THE SENTENCES IF RESPONDENTS DID TESTIFY.  APP. 19 - 20, 21,
33.  IN VIEW OF THIS THEIR CONTINUED REFUSALS TO TESTIFY CAN ONLY BE
TERMED INTENTIONAL. 

/8/ IN ORDER TO CONSTITUTE AN AFFRONT TO THE DIGNITY OF THE COURT
THE JUDGE HIMSELF NEED NOT BE PERSONALLY AFFRONTED BY RESPONDENTS'
ACTIONS.  HE SAID:  " I AM NOT ANGRY AT MR. WILSON BECAUSE HE REFUSES
TO TESTIFY.  THAT IS UP TO HIM."  APP.  14.  HE ALSO SAID:  " I DON'T
CONSIDER (BRYAN) TO HAVE A CHIP ON HIS SHOULDER TOWARDS THE COURT OR
TOWARDS ME."  ID., AT 33. 

/9/ IN SHILLITANI V. UNITED STATES, 384 U.S. 364, 371 N. 9 (1966),
WE SAID:  "(THE TRIAL JUDGE (SHOULD) FIRST CONSIDER THE FEASIBILITY OF
COERCING TESTIMONY THROUGH THE IMPOSITION OF CIVIL CONTEMPT.  THE JUDGE
SHOULD RESORT TO CRIMINAL SANCTIONS ONLY AFTER HE DETERMINES, FOR GOOD
REASON, THAT THE CIVIL REMEDY WOULD BE INAPPROPRIATE."  HERE, OF
COURSE, THAT ADMONITION CARRIES LITTLE WEIGHT BECAUSE AT THE TIME THEY
ACTED CONTEMPTUOUSLY BOTH RESPONDENTS WERE INCARCERATED DUE TO THEIR
OWN GUILTY PLEAS.  UNDER THE CIRCUMSTANCES HERE THE THREAT OF IMMEDIATE
CONFINEMENT FOR CIVIL CONTEMPT WOULD HAVE PROVIDED LITTLE INCENTIVE FOR
THEM TO TESTIFY.  CONTRAST, ANGLIN V. JOHNSTON, 504 F.2D 1165 (CA
1974), CERT. DENIED, 420 U.S. 962 (1975).  NEVERTHELESS, THE CAREFUL
TRIAL JUDGE MADE IT CLEAR TO RESPONDENTS THAT IF THEY RELENTED AND
OBEYED HIS ORDER HE WOULD CONSIDER REDUCINT THEIR SENTENCES; AND HE
ALSO EXPLAINED THAT HE WOULD CONSIDER OTHER FACTORS IN DECIDING WHETHER
TO REDUCE THE SENTENCES.  SUPRA, AT 312. 

/10/ SOURCES CONTEMPORANEOUS WITH TEH ADOPTION OF THIS RULE
UNIFORMLY INDICATE THAT SUBSECTION (A) IS SUBSTANTIALLY A RESTATEMENT
OF EXISTING LAW, 6 N.Y.U. SCHOOL OF LAW, INSTITUTE PROCEEDINGS--,
FEDERAL RULES OF CRIMINAL PROCEDURE 73 (1946); DESSION, THE NEW FEDERAL
RULES OF CRIMINAL PROCEDURE:  II, 56 YALE L.J. 197, 244 N. 268 (1947);
ORFIELD, REDERAL RULES OF CRIMINAL PROCEDURE, 26 NEB. L. REV. 570, 613
N. 189 (1947), AND WAS NOT INTENDED TO ALTER THE CIRCUMSTANCES IN WHICH
NOTICE AND A HEARING ARE REQUIRED. 

/11/ APP. 6. 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING. 

IN BROWN V. UNITED STATES, 359 U.S. 41 (1959), THE PETITIONER HAD
REFUSED, ON FIFTH AMENDMENT GROUNDS, TO ANSWER QUESTIONS PUT TO HIM BY
A FEDERAL GRAND JURY.  HE THEREAFTER WAS IMMUNIZED BY THE DISTRICT
JUDGE BUT, ON RETURNING TO THE GRAND JURY ROOM, PERSISTED IN HIS
REFUSAL TO ANSWER QUESTIONS.  HE AGAIN WAS TAKEN BEFORE THE DISTRICT
JUDGE, WHO REPEATED THE GRAND JURY'S QUESTIONS AND ORDERED THE
PETITIONER TO ANSWER.  HE AGAIN REFUSED.  THE COURT THEN, PURSUANT TO
$FED.  RULE CRIM. PROC. 42(A), ADJUDGED HIM GUILTY OF CRIMINAL
CONTEMPT.  THIS COURT, BY A 5 - 4 VOTE, SUSTAINED THE JUDGMENT, AND
EXPRESSLY APPROVED THE USE OF SUMMARY PROCEEDINGS; IT DID SO ON THE
GROUND THAT THE REFUSAL TO ANSWER BEFORE THE DISTRICT JUDGE WAS
ACONTEMPT "COMMITTED IN THE ACTUAL PRESENCE OF THE COURT," WITHIN THE
MEANING OF RULE 42(A).  359 U.S., AT 47 - 52. 

LESS THAN SEVEN YEARS LATER, IN HARRIS V. UNITED STATES, 382 U.S.
162 (1965), THE COURT, WITH TWO NEW JUSTICES, WAS CONFRONTED WITH A
FACTUAL SITUATION IDENTICAL IN ALL RELEVANT RESPECTS TO THAT IN BROWN. 
IN HARRIS, HOWEVER, THE COURT, AGAIN BY A 5 - 4 VOTE, CONCLUDED THAT
THW WITNESS' REFUSAL TO ANSWER THE QUESTIONS BEFORE THE DISTRICT JUDGE
WAS NOT A CONTEMPT (COMMITTED IN THE ACTUAL PRESENCE OF THE COURT."  IT
REASONED: 

     " THE REAL CONTEMPT, IF SUCH THERE WAS, WAS CONTEMPT BEFORE
THE

  GRAND JURY--THE REFUSAL TO ANSWER TO IT WHEN DIRECTED BY THE

  COURT.  SWEARING THE WITNESS AND REPEATING THE QUESTIONS BEFORE

  THE JUDGE WAS AN EFFORT TO HAVE THE REFUSAL TO TESTIFY 'COMMITTED

  IN THE ACTUAL PRESENCE OF THE COURT' FOR THE PURPOSE OF RULE

  45(A).  IT SERVED NO OTHER PURPOSE, FOR THE WITNESS HAD BEEN

  ADAMANT AND HAD MADE HIS POSITION KNOWN.  THE APPEARANCE BEFORE

  THE DISTRICT COURT WAS NOT A NEW AND DIFFERENT PROCEEDING,

  UNRELATED TO THE OTHER.  IT WAS ANCILLARY TO THE GRAND JURY

  HEARING AND DESIGNED AS AN AID TO IT."  382 U.S., AT 164 - 165. 

THE COURT THEN EXPRESSLY OVERRULED BROWN.  ID., AT 167. 

I WAS NOT ON THE COURT WHEN BROWN AND HARRIS WERE DECIDED.  HAD I
BEEN, I WOULD HAVE JOINED THE COURT IN BROWN AND THE DISSENTERS IN
HARRIS.  ALTHOUGH I JOIN THE COURT'S OPINION TODAY, I WRITE SEPARATELY
TO EXPRESS MY CONVICTION THAT HARRIS, AT THE MOST, NOW STANDS FOR
NOTHING MORE THAN THE PROPOSITION THAT A WITNESS' REFUSAL TO ANSWER
GRAND JURY QUESTIONS IS NOT CONDUCT "IN THE ACTUAL PRESENCE OF THE
COURT."  EVEN WHEN THE QUESTIONS ARE RESTATED BY THE DISTRICT JUDGE AND
THE WITNESS PERSISTS IN HIS REFUSAL TO ANSWER.  /1/ 

SUMMARY CONTEMPT, ESPECIALLY SUMMARY CRIMINAL CONTEMPT, AS THE COURT
INDICATES, ANTE, AT 319, IS NOT A POWER LIGHTLY TO BE EXERCISED.  /2/
NEVERTHELESS, SUMMARY CRIMINAL CONTEMPT IS A NECESSARY AND LEGITIMATE
PART OF A COURT'S ARSENAL OF WEAPONS TO PREVENT OBSTRUCTION, VIOLENT OR
OTHERWISE, OF ITS PROCEEDINGS.  IT IS NOT SERIOUSLY DISPUTED THAT A
REFUSAL TO TESTIFY IS PUNISHABLE AS A CRIMINAL CONTEMPT.  SO LONG AS
THIS COURT HOLDS, AS IT HAS, THAT THE SUMMARY PROCEDURE OF RULE 42(A)
SATISFIES THE REQUIREMENTS OF DUE PROCESS, THE RULE SHOULD BE READ TO
MEAN PRECISELY WHAT IT SAYS. 

/1/ THE SOLICITOR GENERAL HAS INVITED THE COURT IN THIS CASE TO
OVERRULE HARRIS.  BRIEF FOR UNITED STATES 24.  SINCE THE REFUSAL TO
TESTIFY, INVOLVED HERE, OCCURRED DURING THE COURSE OF A TRIAL RATHER
THAN BEFORE A GRAND JURY, I AGREE WITH THE COURT'S TACIT CONCLUSION TO
SAVE THE QUESTION OF OVERRULING HARRIS FOR ANOTHER DAY. 

/2/ ALTHOUGH THE USE OF CIVIL CONTEMPT, AS OPPOSED TO THE MORE
DRASTIC CRIMINAL CONTEMPT, IS USUALLY TO BE PREFERRED AS A REMEDY, I AM
AWARE OF NO REQUIREMENT THAT THE LESS DRASTIC SANCTION MUST BE EMPLOYED
IN ALL CASES.  INDEED, DESPITE THE FACT THAT RESPONDENTS WERE ALREADY
INCARCERATED FOR SUBSTANTIVE CRIMINAL OFFENSES, IT APPEARS TO BE CLEAR
THAT SERVICE OF THEIR SENTENCES COULD HAVE BEEN INTERRUPTED TO COMPEL
THEM TO SERVE AN INTERVENIND SENTENCE FOR CONTEMPT.  SEE, E.G., UNITED
STATES V. LIDDY, --U.S.-- APP. D.C.--, 510 F.2D 669 (1974), CERT.
DENIED, 420 U.S. 980 (1975); ANGLIN V. JOHNSTON, 504 F.2D 1165 (CA7
1974), CERT. DENIED, 420 U.S. 962 (1975). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE QUESTION FOR DECISION IN THIS CASE IS ONE OF PROCEDURE:  IS THE
CRIMINAL CONTEMPT OF NONVIOLENTLY AND RESPECTFULLY REFUSING TO TESTIFY
AT A CRIMINAL TRIAL PUNISHABLE SUMMARILY BY THE TRIAL JUDGE PURSUANT TO
FED. RULE CRIM. PROC. 42(A), OR MUST THE TRIAL JUDGE PROSECUTE THE
COMTEMPT ON NOTICE PURSUANT TO RULE 42(B), ALLOWING A REASONABLE TIME
FOR THE PREPARATION OF THE DEFENSE?  /1/ A TRIAL JUDGE IN THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SUMMARILY PUNISHED
RESPONDENTS UNDER SUBDIVISION (A) OF RULE 42 FOR REFUSING TO TESTIFY AT
A TRIAL.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED AND
REMANDED ON THE GROUND THAT HARRIS V. UNITED STATES, 382 U.S. 162
(1965), AND THE COURT OF APPEALS' OWN PRIOR DECISION IN UNITED STATES
V. MARRA, 428 F.2D 1196 (1973), WHICH HAD RELIED UPON HARRIS, COMPELLED
THE CONCLUSION THAT THE PROPER COURSE WAS TO PROSECUTE ON NOTICE UNDER
SUBDIVISION (B) OF THE RULE.  488 F.2D 1231 (1973).  I WOULD AFFIRM THE
JUDGMENT OF HE COURT OF APPEALS. 

ONE ANDERSON WAS ON TRIAL IN THE DISTRICT COURT ON MARCH 29, 1973,
UNDER AN INDICTMENT FOR ARMED ROBBERY OF TWO BANKS, ONE IN TUXEDO,
N.Y., AND THE OTHER IN MOUNT IVY, N.Y.  BEFORE THE TRIAL RESPONDENT
WILSON PLEADED QUILTY TO PARTICIPATION IN THE IN THE TUXEDO BANK
ROBBERY AND RESPONDENT BRYAN PLEADED GUILTY TO PARTICIPATION IN THE
MOUNT IVY BANK ROBBERY.  NEITHER RESPONDENT HAD BEEN FINALLY SENTENCED
ON HIS PLEA, HOWEVER, /2/ AND EACH REFUSED TO TESTIFY AGAINST ANDERSON
ON SELF-INCRIMINATION GROUNDS, AND PRESISTED IN THAT REFUSAL EVEN
THOUGH THE TRIAL JUDGE GRANTED HIM IMMUNITY UNDER 18 U.S.C. SEC. 6002 -
6003.  /3/ THE TRIAL JUDGE THERUPON SUMMARILY ADJUDGED EACH IN CRIMINAL
CONTEMPT AND SENTENCED EACH TO SIX MONTHS' IMPRISONMENT TO BE SERVED
CONSECUTIVELY TO HIS SENTENCE ON THE ROBBERY CONVICTION.  /4/ 

THE COURT TODAY DECLINES THE GOVERNMENT'S INVITATION TO OVERRULE
HARRIS V. UNITED STATES, SUPRA, AND IN THAT CIRCUMSTANCE HARRIS CLEARLY
COMPELS AFFIRMANCE OF THE JUDGMENT OF THE COURT OF APPEALS.  HARRIS
INTERPRETED SUBDIVISION (A) OF RULE 42 AS HAVING A NARROWLY LIMITED
SCOPE AND EXPRESSLY EXCLUDED ITS APPLICATION TO A NONVIOLENT,
RESPECTFUL REFUSAL TO ANSWER QUESTIONS ON THE GROUND OF SELF
INCRIMINATION.  /5/ THE COURT EMPHASIZED THAT SUBDIVISION (A) REACHED A
NARROW CATEGORY OF SITUATION AND "WAS RESERVED 'FOR EXCEPTIONAL
CIRCUMSTANCES' . . . SUCH AS ACTS THREATENING THE JUDGE OR DISRUPTING A
HEARING OR OBSTRUCTING COURT PROCEEDINGS."  382 U.S., AT 164.  SUCH
ACTS, THE COURT HELD, ARE NOT PRESENT IN THE CASE OF A NONVIOLENT,
RESPECTFUL REFUSAL TO ANSWER QUESTIONS ON THE GROUND OF SELF
INCRIMINATION BECAUSE IN SUCH A CASE "THE DIGNITY OF THE COURT WAS NOT
BEING AFFRONTED:  NO DISTRUBANCE HAD TO BE QUELLED; NO INSOLENT TACTICS
HAD TO BE STOPPED."  ID., AT 165.  /6/ 

THE COURT STATED ITS RATIONALE FOR THE NARROW INTERPRETATION OF
SUBDIVISION (A) AS FOLLOWS: 

" WE REACH THAT CONCLUSION IN LIGHT OF 'THE CONCERN LONG
DEMONSTRATED BY BOTH CONGRESS AND THIS COURT OVER THE POSSIBLE ABUSE OF
THE CONTEMPT POWER' . . . AND IN LIGHT OF THE WORDING OF THE RULE. 
SUMMARY CONTEMPT IS FOR 'MISBEHAVIOR' . . . IN THE 'ACTUAL PRESENCE OF
THE COURT.'  THEN SPEEDY PUNISHMENT MAY BE NECESSARY IN ORDER TO
ACHIEVE 'SUMMARY VINDICATION OF THE COURT'S DIGNITY AND AUTHORITY.'" 
ID., AT 164.  THE COURT CONTINUED:     " SUMMARY PROCEDURE, TO USE THE
WORDS OF CHIEF JUSTICE TAFT, WAS DESIGNED TO FILL 'THE NEED FOR
IMMEDIATE PENAL VINDICATION OF THE DIGNITY OF THE COURT....'  WE START
FROM THE PREMIS LONG AGO STATED IN ANDERSON V. DUNN, 6 WHEAT.  204,
231, THAT THE LIMITS OF THE POWER TO PUNISH FOR CONTEMPT ARE '(THE
LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED.'  IN THE INSTANT
CASE, THE DIGNITY OF THE COURT WAS NOT BEING AFFRONTED:  NO DISTURBANCE
HAD TO BE QUELLED; NO INSOLENT TATICS HAD TO BE STOPPED.  THE CONTEMPT
HERE COMMITTED WAS FAR OUTSIDE THE NARROW CATEGORY ENVISIONED BY RULE
42(A)."  ID., AT 165. 

ONLY LAST TERM, THE COURT AGAIN EMPHASIZED THAT SUMMARY PUNISHMENT
FOR CONTEMPT "'ALWAYS AND RIGHTLY, IS REGARDED WITH DISFAVOR'" IN LIGHT
OF THE "HEIGHTENED POTENTIAL FOR ABUSE POSED BY THE CONTEMPT POWER,"
TAYLOR V. HAYES, 418 U.S. 488, 498, 500 (1974), AND IS TO BE RESORTED
TO ONLY WHEN NECESSARY FOR "'IMMEDIATE PENAL VINDICATION OF THE DIGNITY
OF THE COURT.'"  ID., AT 498 N. 6. 

I SEE NO ESCAPE FROM THE APPLICATION OF HARRIS TO THIS CASE BASED ON
THE DIFFERENCE THAT RESPONDENTS WERE WITNESSES AT AN ONGOING TRIAL
WHILE THE WITNESS IN HARRIS WAS A GRAND JURY WITNESS, BROUGHT BEFORE
THE JUDGE AND ASKED THE SAME QUESTIONS HE HAD NOT ANSWERED BEFORE THE
GRAND JURY.  THE COURT ARGUES THAT WHILE THE DELAY NECISSITATED BY RULE
42(B) PROCUDURES WOULD BE INLIKELY SERIOUSLY TO DISRUPT GRAND JURY
PROCEEDINGS IT WOULD HAVE SUBSTANTIAL DISRUPTIVE EFFECTS IN A TRIAL.  I
DOUBT THAT COMPLIANCE WITH RULE 42(B) PROCEDURES NECESSARILY WOULD HAVE
SUBSTANTIAL DISRUPTIVE EFFECTS IN A TRIAL /7/ BUT IN ANY EVENT THOSE
EFFECTS ARE NOT THE KIND OF OBSTRUCTION OF COURT PROCEEDINGS, HARRIS,
SUPRA, AT 164, THAT JUSTIFY SUMMARY PUNISHMENT UNDER SUBDIVISION (A). 
FOR HARRIS LIMITS APPLICATION OF THAT SUBDIVISION TO CONDUCT IN THE
PRESENCE OF THE JUDGE "WHERE IMMEDIATE CORRECTIVE STEPS ARE NEEDED TO
RESTORE ORDER AND MAINTAIN THE DIGNITY AND AUTHORITY OF THE COURT." 
JOHNSON V. MISSISSIPPI, 403 U.S. 212, 214 (1971).  /8/ IN THE CASE OF
RESPONDENT'S NONVIOLENT, RESPECTFUL REFUSAL TO ANSWER QUESTIONS ON THE
GROUND OF SELF-INCRIMINATION, "THE DIGNITY OF THE COURT WAS NOT BEING
AFFRONTED," /9/ HARRIS, SUPRA, AT 165, AND THE ABSENCE OF THAT CRUCIAL
ELEMENT IN RESPONDENTS' REFUSAL TO ANSWER QUESTIONS FORECLOSED
APPLICATION OF SUBDIVISION (A) BY THE TRIAL JUDGE. 

/1/ RULE 42(A) PROVIDES:  "(A) SUMMARY DISPOSITION. 

" A CRIMINAL CONTEMPT MAY BE PUNISHED SUMMARILY IF THE JUDGE
CERTIFIES THAT HE SAW OR HEARD THE CONDUCT CONSTITUTING THE CONTEMPT
AND THAT IT WAS COMMITTED IN THE ACTUAL PRESENCE OF THE COURT.  THE
ORDER OF CONTEMPT SHALL RECITE THE FACTS AND SHALL BE SIGNED BY THE
JUDGE AND ENTERED OF RECORD." 

RULE 42(B) PROVIDES:  "(B) DISPOSITION UPON NOTICE AND HEARING. 

" A CRIMINAL CONTEMPT EXCEPT AS PROVIDED IN SUBDIVISION (A) OF THIS
RULE SHALL BE PROSECUTED ON NOTICE.  THE NOTICE SHALL STATE THE TIME
AND PLACE OF HEARING, ALLOWING A REASONABLE TIME FOR THE PREPARTATION
OF THE DEFENSE, AND SHALL STATE THE ESSENTIAL FACTS CONSTITUTING THE
CRIMINAL CONTEMPT CHARGED AND DESCRIBE IT AS SUCH.  THIS NOTICE THE
DEFENDANT OR, ON APPLICATION OF THE UNITED STATES ATTORNEY OR OF AN
ATTORNEY APPOINTED BY THE COURT FOR THAT PURPOSE, BY AN ORDER TO SHOW
CAUSE OR AN ORDER OF ARREST.  THE DEFENDANT IS ENTITLED TO A TRIAL BY
JURY IN ANY CASE IN WHICH AN ACT OF CONGRESS SO PROVIDES.  HE IS
ENTITLED TO ADMISSION TO BAIL AS PROVIDED IN THESE RULES.  IF THE
CONTEMPT CHARGED INVOLVES DISRESPECT TO OR CRITICISM OF JUDGE, THE
JUDGE IS DISQUALIFIED FROM PRESIDING AT THE TRIAL OR HEARING EXCEPT
WITH THE DEFENDANT'S CONSENT.  UPON A VERDICT OR FINDING OF GUILT THE
COURT SHALL ENTER AN ORDER FIXING THE PUNISHMENT." 

/2/ THE TRIAL JUDGE WHO PRESIDED AT ANDERSON'S TRIAL HAD DEFERRED
SENTENCING RESPONDENT WILSON.  ANOTHER TRIAL JUDGE, WHO HAD BEEN
ASSIGNED RESPONDENT BRYAN'S INDICTMENT, HAD IMPOSED A PROVISIONAL 25
YEAR SENTENCE PENDING AN EVALUATION UNDER 18 U.S.C. SEC. 4208(B). 

AFTER ANDERSON'S TRIAL, WILSON WAS COMMITTED AS A YOUNG ADULT
OFFENDER FOR AN INDETERMINATE TERM PURSUANT TO 18 U.S.C. SEC. 5010 (B),
WHILE BRYAN'S SENTENCE WAS REDUCED TO 10 YEARS. 

/3/ WHEN THE PRIVILEGE WAS INVOKED, WILSON'S COUNSEL WAS PRESENT
AND, IN THE ABSENCE OF BRYAN'S COUNSEL, ATTEMPTED WITH THE COURT'S
APPROVAL TO REPRESENT BOTH WITNESSES. 


" WHERE A WITNESS REFUSED, ON THE BASIS OF HIS PRIVILEGE AGAINST
SELF-INCRIMINATION, TO TESTIFY OR RPOVIDE OTHER INFORMATION IN A
PROCEEDING BEFORE OR ANCILLARY TO --, 

"(1) A COURT OR GRAND JURY OF THE UNITED STATES, 

"(2) AN AGENCY OF THE UNITED STATES, OR 

"(3) EITHER HOUSE OF CONGRESS, A JOINT COMMITTEE OF THE TWO HOUSES,
OR A COMMITTEE OR A SUBCOMMITTEE OF EITHER HOUSE, "AND THE PERSON
PRESIDING OVER THE PROCEEDING COMMUNICATES TO THE WITNESS AN ORDER
ISSUED UNDER THIS PART, THE WITNESS MAY NOT REFUSE TO COMPLY WITH THE
ORDER ON THE BASIS OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION; BUT NO
TESTIMONY OR OTHEE INFORMATION COMPELLED UNDER THE ORDER (OR ANY
INFORMATION DIRECTLY OR INDIRECTLY DERIVED FROM SUCH TESTIMONY OR OTHER
INFORMATION) MAY BE USED AGAINST THE WITNESS IN ANY CRIMINAL CASE,
EXCEPT A PROSECUTION FOR PERJURY, GIVING A FALSE STATEMENT, OR
OTHERWISE FAILING TO COMPLY WITH THE ORDER.  "SEC.  6003.  COURT AND
GRAND JURY PROCEEDINGS. 

"(A) IN THE CASE OF ANY INDIVIDUAL WHO HAS BEEN OR MAY BE CALLED TO
TESTIFY OR PROVIDE OTHER INFORMATION AT ANY PROCEEDING BEFORE OR
ANCILLARY TO A COURT OF THE UNITED STATES OR A GRAND JURY OF THE UNITED
STATES, THE UNITED STATES DISTRICT COURT FOR THE JUDICIAL DISTRICT IN
WHICH THE PROCEEDING IS OR MAY BE HELD SHALL ISSUE, IN ACCORDANCE WITH
SUBSECTION (B) OF THIS SECTION, UPON THE REQUEST OF THE UNITED STATES
ATTORNEY FOR SUCH DISTRICT, AN ORDER REQUIRING SUCH INDIVIDUAL TO GIVE
TESTIMONY OR PROVIDE OTHER INFORMATION WHICH HE REFUSES TO GIVE OR
PROVIDE ON THE BASIS OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION, SUCH
ORDER TO BECOME EFFECTIVE AS PROVIDED IN SECTION 6003 OF THIS PART. 

"(B) A UNITED STATES ATTRONEY MAY, WITH THE APPROVAL OF THE ATTORNEY
GENERAL, THE DEPUTY ATTORNEY GENERAL, OR ANY DESIGNATED ASSISTANT
ATTORNEY GENERAL, REQUEST AN ORDER UNDER SUBSECTION (A) OF THIS SECTION
WHEN IN HIS JUDGMENT--, 

"(1) THE TESTIMONY OR OTHER INFORMATION FROM SUCH INDIVIDUAL MAY BE
NECESSARY TO THE PUBLIC INTEREST; AND 

"(2) SUCH INDIVIDUAL HAS REFUSED OR IS LIKELY TO REFUSE TO TESTIFY
OR PROVIDE OTHER INFORMATION ON THE BASIS OF HIS PRIVILEGE AGAINST SELF
INCRIMINATION." 

/4/ THE CONTEMPT SENTENCES WERE PROVISIONAL AND STAYED PENDING
APPEAL.  THE COURT OF APPEALS REJECTED THE GOVERNMENT'S CONTENTION THAT
THE WITNESSES HAD NOT ADEQUATELY OVJECTED TO THE USE OF SUMMARY
CONTEMPT PROCEDURES:  "(UNDER THE CIRCUMSTANCES, THE REQUEST BY COUNSEL
FOR WILSON FOR MORE TIME TO RESEARCH THE FIFTH AMENDMENT ISSUE
CONSTITUTED SUFFICIENT OBJECTION.  AND WE REFUSE TO PENALIZE APPELLANT
BRYAN FOR HIS FAILURE TO MAKE TIMELY OBJECITION TO THE RULE 42(A)
PROCEEDING, SINCE HIS OWN COUNSEL WAS NOT PRESENT.  ALTHOUGH COUNSEL
FOR WILSON DID HER BEST TO PROTECT BRYAN, THE COURT HAVING SANCTIONED
HER EFFORTS IN THIS REGARD, ONLY A DEFENDANT'S OWN LAWYER COULD BE
FULLY ASARE OF THE CONSIDERATIONS WHICH MIGHT BE RAISED IN HIS BEHALF
TO MITIGATE A CHARGE OR CONTEMPT OR THE SENTENCE THERUNDER, AND OF THE
LIKELY USEFULNESS OF A HEARING FOR DEVELOPMENT OF THESE
CONSIDERATIONS."  488 F.2D 1231, 1234 (CA2 1973). 

AT THE CLOSE OF THE GOVERNMENT'S CASE, THE TRIAL JUDGE GRANTED
ANDERSON'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THE MOUNT IVY THE JURY
WAS UNABLE TO REACH A VERDICT ON THE TUXEDO ROBBERY.  AT A SECOND
TRIAL, ANDERSON WAS CONVICTED OF THE TUXEDO ROBBERY. 

/5/ RESPONDENTS' SELF-INCRIMINATION CLAIM WAS BASED UPON A CONCERN
THAT THEIR TESTIMONY MIGHT PREJUDICE THEIR SENTENCING.  THE MERITS OF
THE CLAIM ARE NOT BEFORE US.  THE COURT OF APPEALS REJECTED
RESPONDENTS' CONTENTION THAT THE IMMUNITY GIVEN WAS NOT COEXTENSIVE
WITH THE PRIVILEGE AGAINST SELF-INCRIMINATION OF THE GROUND THAT
NEITHER RESPONDENT HAD PROPERLY RAISED THE ISSUE OF "FORBIDDEN USE":  "
IF APPELLANT WILSON DOUBTED THE ABILITY OF JUDGE LASKER TO PUT OUT OF
HIS MIND WILSON'S STATEMENTS AT ANDERSON'S TRIAL, HE SHOULD
NEVERTHELESS HAVE TESTIFIED AS ORDERED, BUT REQUESTED A DIFFERENT JUDGE
FOR SENTENCING ON THE ROBBERY CHARGE.  CF. GOLDBERG V. UNITED STATES,
472 F.2D 513, 516 (2D CIR. 1973).  SMIILARLY, IF BRYAN GENUINELY FEARED
AN INCREASE SENTENCE ON HIS GUILTY PLE AS A RESULT OF TESTIFYING IN THE
ANDERSON CASE, HE, TOO, SHOULD HAVE GIVEN EVIDENCE, THEN ASKED THAT
PROPER PRECAUTIONS BE TAKEN (E.G., SEALING THE RECORD) TO INUSRE THAT
JUDGE COOPER WOULD NOT BE PRIVY TO THE STATEMENTS MADE UNDER GRANT OF
IMMUNITY.  BOTH WERE, HOWEVER, REQUIRED TO OBEY THE MANDATE OF 18
U.S.C. SEC. 6002 THAT 'THE WITNESS MAY NOT REFUSE TO COMPLY WITH THE
ORDER ON THE BASIS OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION . . . .
'" 488 F.2D AT 1233. 

/6/ HARRIS OVERRULED THE BROADER REACH GIVEN SUBDIVISION (A) IN
BROWN V. UNITED STATES, 359 U.S. 41 (1959).  THIS WAS BELIEVED
NECESSARY TO ACHIEVE THE OBJECTIVE OF ITS FRAMERS THAT THE SUBDIVISION
BE "'SUBSTANTIALLY A RESTATEMENT OF ESIXTING LAW.'"  382 U.S., AT 165
N. 3. 

/7/ IN UNITED STATES V. MARRA, 482 F.2D 1196 (CA2 1973), THE COURT
OF APPEALS REJECTED THAT ARGUMENT, STATING: 

" IN AN UNCOMPLICATED CASE OF THE PRESENT TYPE, WHERE THE FACTS ARE
SIMPLE AND A BRIEF CONSULTATION BETWEEN THE WITNESS AND HIS RETAINED OR
ASSIGNED COUNSEL SHOULD BE SUFFICIENT TO ENABLE HIM TO PREPARE FOR A
RULE 42(B) HEARING, THERE APPEARS TO BE NO SOUD REASON WHY THE HEARING
COULD NOT BE HELD WITHIN A DAY OR TWO OF THE WITNESS' REFUSAL TO OBEY
THE COURT'S ORDER.  SINCE THE HEARING WOULD IN ALL LIKELIHOOD REQUIRE
NO MORE THAN AN HOUR OR TWO OF THE COURT'S TIME, TRIAL OF THE CRIMINAL
CASE COULD BE SUSPENDED WITH A MINIMUM DISRUPTION TO THE JUDICIAL
PROCESS.  SUCH A PROCEDURE, FURTHERMORE, LESSENS THE RISK OF THE
WITNESS' CONTUMACY IS THE RESULT OF FRIGHT, CONFUSION, OR
MISUNDERSTANDING.  INDEED, WITH THE ADVICE OF COUNSEL, OR FACED WITH
IMPOSITION OF A CRMIINAL SENTENCE, HE MAY DECIDE TO COOPERATE."  ID.,
AT 1202.  SEE ALSO UNITED STATES V. ACE, 371 F.2D 810 (CA2 1967). 

THE COURT OF APPEALS SAID OF THE SITUATION IN THE INSTANT CASE: 

" IF . . . COUNSEL HAD BEEN GIVEN 'A REASONABLE TIME FOR THE
PREPARATION OF THE DEFENSE,' FED. R. CRIM. P. 42 (B), SHE MIGHT HAVE
MARSHALLED AND PRESENTED FACTS IN MITIGATION OF THE CHARGE. 
SIGNIFICANTLY, THE RECORD REVEALS THE POSSIBILITY OF A PSYCHIATRIC
DEFENSE, AT LEAST FOR WILSON (CF. PANICO V. UNITED STATES, 375 U.S. 29
(1963)).... " FINALLY, BECAUSE OF THE POSTUREOF THE CASE, THE RECORD IS
SILENT ON OTHER FACTS WHICH MAY WELL EXIST IN DEFENSE OR MITIGATION OF
THE CHARGE AGAINST BOTH APPELLANTS, AND WHICH COULD BE PROPERLY
DEVELOPED AT A PLENARY HEARING."  488 F.2D, AT 1234 - 1235. 

THE TRIAL JUDGE HAS BROAD DISCRETION TO SPECIFY THE TIME FOR
PREPARATION OF A DEFENSE TO A CHARGE OF CRIMINAL CONTEMPT.  SEE NILVA
V. UNITED STATES, 352 U.S. 385, 295 (1957). 

/8/ "(RULE 42(B)) IS CONTROLLING IN ANY CASE OF CONTEMPT OCCURRING
OUTSIDE THE ACTUAL PRESENCE OF THE COURT, BUT IT APPLIES TOO MOST CASES
OF CONTEMPT IN THE COURT'S PRESENCE."  3 C. WRIGHT, FEDERAL PRACTICE
AND PROCEDURE 171 - 172 (1969). 

/9/ IT IS UNDISPUTED THAT RESPONDENTS ASSERTED THEIR FIFTH AMENDMENT
RIGHTS NONVIOLENTLY AND RESPECTFULLY.  INDEED, THE TRIAL JUDGE
COMMENTED AFTER RESPONDENT BRYAN ASSERTED THE PRIVILEGE: " I DON'T
CONSIDER HIM TO HAVE A CHIP ON HIS SHOULDER TOWARDS THE COURT OR
TOWARDS ME."  APP.  32. 

GERALD P. NORTON ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL PETERSON,
DEPUTY DOLICITOR GENERAL FREY, AND WILLIAM L. PATTON. 

SHEILA GINSBERG ARGUED THE CAUSE FOR RESPONDENT WILSON.  WITH HER ON
THE BRIEF WERE WILLIAM E. HELLERSTEIN AND PHYLIS SHKLOOT BAMBERGER. 
JOHN S. MARTIN, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT
BRYAN. 
..END :



















PHELPS V. UNITED STATES, 421 U.S. 330 


       PHELPS, RECEIVER IN BANKRUPTCY V. UNITED STATES

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 74 - 121.  ARGUED APRIL 16, 1975--DECIDED MAY 19, 1975;

           495 F.2D 1283, AFFIRMED. 


    AFTER THE INTERNAL REVENUE (IRS) HAD MADE FEDERAL TAX

  ASSESSMENTS AGAINST A COMPANY AND THE COMPANY FAILED TO PAY THE

  TAXES AFTER FORMAL DEMAND, THE COMPANY TRANSFERRED ITS ASSETS TO

  AN ASSIGNEE FOR THE BENEFIT OF CREDITORS, WHO CONVERTED THE

  ASSETS INTO CASH.  THE IRS THEN FILED A NOTICE OF TAX LEIN

  RESPECTING THE ASSESSMENTS AND SERVED A LEVY NOTICE ON THE

  ASSIGNEE, WHO DID NOT, HOWEVER, COMPLY WITH IRS' PAYMENT DEMAND. 

  THE COMPANY WAS THEREAFTER ADJUDICATED BANKRUPT AND PETITIONER

  RECEIVER IN BANKRUPTCY MADE APPLICATION TO THE BANKRUPTCY REFEREE

  FOR AN ORDER REQUIRING THE ASSIGNEE TO TURN OVER THE CASH

PROCEEDS.  THE IRS OPPOSED THE APPLICATION ON THE GROUND THAT THE

  BANKRUPTCY COURT LACKED JURISDICTION OVER THE SUBJECT MATTER OF

  THE APPLICATION BECAUSE THE UNITED STATES WAS ENTITLED TO

  POSSESSION OF THE CASH PROCEEDS HELD BY THE BANKRUPTHS ASSIGNEE. 

  THE REFEREE REJECTED IRS' CONTENTION, HOLDING THAT THE ASSIGNMENT

  PASSED INALIENABLE TITLE TO THE ASSETS OF THE COMPANY TO THE

  ASSIGNEE, AND THE DISTRICT COURT UPHELD THE REFEREE.  THE COURT

  OF APPEALS REVERSED.  HELD:  THD UNITED STATES, BY SERVING THE

  BANKRUPT TAXPAYER'S ASSIGNEE WITH A VALID NOTICE OF LEVY TOOK

CONSTRUCTIVE CUSTODY OF THE CASH PROCEEDS IN THE ASSIGNEE'S

  POSSESSION, AND NEITHER THE BANKRUPT NOT PETITIONER AS RECEIVER

  COULD ASSERT A CLAIM TO THOSE PROCEEDS.  THE RECEIVER'S RECOURSE

  IS LIMITED TO A PLENARY SUIT UNDER SEC. 23 OF THE BANKRUPTCY

  ACT.  PP. 333 - 337. 

     BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

BETWEEN MARCH AND JUNE 1971 THE INTERNAL REVENUE SERVICE (IRS) MADE
ASSESSMENTS OF FEDERAL TAXES IN THE AMOUNT OF $140,831.59 AGAINST
CHICAGOLAND IDEEL CLEANERS, INC. CHICAGOLAND FAILED TO PAY THE TAXES
AFTER FORMAL DEMAND.  INSTEAD, ON JUNE 28, 1971, CHICAGOLAND
TRANSFERRED ITS ASSETS TO AN ASSIGNEE FOR THE BENEFIT OF CREDITORS. 
THE ASSIGNEE PROMPTLY CONVERTED THE ASSETS INTO CASH OF APPROXIMATELY
$38,000.  ON AUGHST 25, 1971, THE IRS FILED A NOTICE OF TAX LIWN
RESPECTING THE MARCH-JUNE ASSESSMENTS IN THE OFFICE OF THE RECORDER OF
DEEDS OF COOK COUNTY, ILLINOIS, AND ON THE SAME DAY SERVED A NOTICE OF
LEVY ON THE ASSIGNEE.  THD NOTICE OF LEVY STATED THAT THE PROCEEDS IN
THE ASSIGNEE'S HANDS "ARE HEREBY LEVIED UPON AND SEIZED FOR
SATISFACTION" OF THE TAXES.  "AND DEMAND IS HERBY MADE UPON YOU FOR THE
(PROCEEDS)."  ON SEPTEMBER 14, 1971, AN INVOLUNTARY PETITION IN
BANKRUPTCY WAS FILED AGAINST CHICAGOLAND.  CHICAGOLAND WAS ADJUDICATED
BANKRUPT AND PETITIONER PHELPS WAS APPOINTED RECEIVER IN BANKRUPTCY. 

PETITIONER RECEIVER, ON OCTOBER 19, 1971, FILED AN APPLICATION WITH
THE REFEREE IN BANKRUPTCY FOR AN ORDER REQUIRING THE ASSIGNEE, WHO HAD
NOT COMPLIED WITH THE IRS DEMAND FOR PAYMENT, TO TURN OVER TO
PETITIONER THE $38,000 PROCEEDS FROM THE SALE OF CHICAGOLAND'S ASSETS. 
THE IRS OPPOSED THE APPLICATION ON THE GROUND THAT "(THIS COURT OF
BANKRUPTCY LACKS JURISDICTION OVER THE SUBJECT MATTER OF THE
APPLICATION BECAUSE THE UNITED STATES IS ENTITLED TO THE POSSESSION OF
THE MONEYS NOW HELD BY (THE) ASSIGNEE OF THE BANKRUPT.  . . . THE
REFEREE IN BANKRUPTCY REJECTED THE CONTENTION, HOLDING THAT "THE
ASSIGNMENT . . . PASSED INALIENABLE TITLE TO THE ASSETS OF CHICAGOLAND
. . . TO THE ASSIGNEE" AND THEREFORE "THE NOTICE OF LEVY OF THE
INTERNAL REVENUE SERVICE IS A NULLITY . . . ."  THE REFEREE ACCORDINGLY
ENTERED AN ORDER DIRECTING THE ASSIGNEE TO "SURRENDER AND TURN OVER TO"
PETITIONER "ALL SUMS IN HIS POSSESSION.  ...."  THE DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS, ON PETITION FOR REVIEW ON BEHLAF OF
THE IRS, APPROVED THE REFEREE'S TURNOVER ORDER.  THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT REVERSED.  495 F.2D 1283 (1974).  THE COURT OF
APPEALS HELD:  " SINCE POSSESSION OF THE PROPERTY RESIDED IN THE UNITED
STATES AS AGAINST THE (PETITIONER) RECEIVER, THE BANKRUPTCY COURT
LACKED JURISDICTION SUMMARILY TO ADJUDICATE THE CONTROVERSY WITHOUT THE
GOVERNMENT'S CONSENT.... THE UNITED STATES IS NOW ENTITLED TO HAVE ITS
CLAIM ADJUDICATED IN A PLENARY SUIT.  WE RESPECTFULLY DECLINE TO FOLLOW
THE CONTRARY HOLDING (3F THE COURT OF APPEALS FOR THE NINTH CIRCUIT) IN
INRE UNITED GENERAL WOOD PRODUCTS CORP., 483 F.2D 975 (9TH CIR.
1973)."  495 F.2D, AT 1285 - 1286.  WE GRANTED CERTIORARI TO RESOLVE
THE CONFLICT BETWEEN THE COURTS OF APPEALS, 419 U.S. 1068 (1974).  /1/
WE AGREE WITH THE HOLDING OF THE COURT OF APPEALS FOR THE SEVENTH
CIRCUIT AND AFFIRM ITS JUDGMENT.  /2/

        I 

THE ASSIGNEE CLAIMS NO INTEREST IN THE PROCEEDS OF $38,000.  THE
COURT OF APPEALS FOR THE NINTH CIRCUIT, IN IN RE UNITED GENERAL WOOD
PRODUCT CORP., 483 F.2D 975, 976 (1973), HELD THAT THE CIRCUMSTANCE,
WITHOUT MORE, SUBJECTED PROPERTY TO THE BANKRUPTCY COURT'S SUMMARY
JURISDICTION TO ENTER A TURNOVER ORDER.  WOOD PRODUCTS CORP. RELIED ON
THE STATEMENT IN TAUBEL-SCOTT-KITZMILLER CO. V. FOX, 264 U.S. 426, 432
433 (1924), THAT CONSTRUCTIVE POSSESSION OF THE PROPERTY BY THE
BANKRUPTCY COURT "EXISTS ... WHERE THE PROPERTY IS HELD BY SOME OTHER
PERSON WHO MAKES NO CLAIM TO IT."  THAT RELIANCE IS MISPLACED.  THE
STATEMENT READ IN THE CONTEXT OF THE FACTS OF THAT CASE AND ITS HOLDING
APPLIED ONLY TO PROPERTY IN THE HANDS OF A NONADVERSE THIRD PERSON WHO
WAS NOT HOLDING IT AS AGENT FOR A BONA FIDE ADVERSE CLAIMANT.  TAUBEL
ITSELF HELD THAT THE BANKRUPTCY COURT HAD NOT BEEN GIVEN JURISDICTION
BY SUMMARY PROCEEDINGS TO AVOID A LIEN CREATED BY LEVY UNDER A JUDGMENT
OF A STATE COURT WHERE THE SHERIFF POSSESSED THE PROPERTY FOR THE
JUDGMENT CREDITOR, AND NEITHER HE NOR THE JUDGMENT CREDITOR HAD
CONSENTED TO ADJUDICATION OF THE CONTROVERSY BY THE BANKRUPTCY COURT. 
SIMILARLY, IN THIS CASE THE UNITED STATES IS A BONA FIDE ADVERSE
CLAIMANT TO THE $38,000 PROCEEDS HELD BY THE ASSIGNEE AND HAS NOT
CONSENTED TO ADJUDICATION OF ITS CLAIM BY THE BANKRUPTCY COURT. 

THE LEVY OF AUGUST 25, 1971, CREATED A CUSTODIAL RELATIONSHIP
BETWEEN THE ASSIGNEE AND THE UNITED STATES AND THEREBY REDUCED THE
$38,000 TO THE UNITED STATES' CONSTRUCTIVE POSSESSION.  NEITHER
CHICAGOLAND NOR THE PETITIONER AS RECEIVER COULD ASSERT A CLAIM TO THE
PROCEEDS IN THAT CIRCUMSTANCE.  FOR WHEN CHICAGOLAND FAILED TO PAY THE
TAXES AFTER ASSESSMENT AND DEMAND, ALIEN IN FAVOR OF THE UNITED STATES
ATTACHED TO "ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR
PERSONAL, BELONGING TO (THE TAXPAYER)."  26 U.S.C. SEC. 6321.  THE
ASSIGNEE TOOK CHICAGOLAND'S PROPERTY SUBJECT TO THIS LIEN.  /3/ THE
LIEN ATTACHED TO THE PROCEEDS OF THE SALE.  /4/ SEE SHEPPARD V. TALOR,
5 PET. 675, 710 (1831); LOBER V. LEINGER, 175 ILL. 484, 51 N.E. 703
(1898).  " THE LIEN REATTACHES TO THE THING AND TO WHATEVER IS
SUBSTITUTED FOR IT. . . . THE OWNER AND THE LIEN HOLDER, WHOSE CLAIMS
HAVE BEEN WRONGFULLY DISPLACED, MAY FOLLOW THE PROCEEDS WHEREEVER THEY
CAN DISTINCTLY TRACE THEM."  SHEPPARD V. TAYLOR, SUPRA, AT 710.  /5/ 

THE NOTICE OF LEVY AND DEMAND SERVED ON THE ASSIGNEE WERE AN
AUTHORIZED MEANS OF COLLECTING THE TAXES FROM THE $38,000 HELD BY HIM. 
TITLE 26 U.S.C. SEC. 6331(A) PROVIDES:  "(IF ANY PERSON LIABLE TO PAY
ANY TAX NEGLECTS OR REFUSES TO PAY THE SAME WITHIN 10 DAYS AFTER NOTICE
AND DEMAND, IT SHALL BE LAWFULL FOR THE SECRETARY ... TO COLLECT SUCH
TAX ... BY LEVY UPON ALL PROPERTY ... ON WHICH THERE IS A (TAX) LIEN
..."; "(THE TERM 'LEVY ... INCLUDES THE POWER OF DISTRAINT AND SEIZURE
BY ANY MEANS."  SEC.  6331 (B).  TREASURY REGULATIONS, 26 CFR SEC.
301.6331 - 1(A) (1) (1974), PROVIDE THAT A "(LEVY MAY BE MADE BY
SERVING A NOTICE OF LEVY," AND THAT LEVY GAVE THE UNITED STATES THE
RIGHT TO THE PROCEEDS.  SEE UNITED STATES V. PITTMAN, 44.  F.2D 623,
627 (CA7 1971).  TITLE 26 U.S.C. SEC. 6332 (A) REQUIRES THAT ANY PERSON
HOLDING PROPERTY LEVIED UPON MUST SURRENDER IT TO THE GOVERNMENT, OR
BECOME LIABLE FOR THE TAX, SEC. 6332(C).  WITH SURRENDER, HOWEVER, ANY
DUTY OWED THE TAXPAYER IS EXTINGUISHED.  SEC. 6332(D). 

THUS, FOLLOWING THE LEVY OF AUGUST 25, 1971, ACTUAL POSSESSION OF
THE $38,000 WAS HELD BY THE ASSIGNEE ON BEHALF OF THE UNITED STATES AND
"WHERE POSSESSION IS ASSERTEDLY HELD NOT FOR THE BANKRUPT, BUT FOR
OTHERS PRIOR TO BANKRUPTCY ... THE HOLDER IS NOT SUBJECT TO SUMMARY
JURISDICTION."  2 J. MOORE & R. OGLEBAY, COLLIER ON BANKRUPTCH 23.06
(3), PP. 506.2 - 506.3 (14TH ED. 1975); /6/ CLINE V. KAPLAN, 323 U.S.
97 (1944); GALBRAITH V. VALLEY, 256 U.S. 46 (1921).  THE RECEIVER'S
RECOURSE IS LIMITED TO PLENARY SUIT UNDER SEC. 23 OF THE BANKRUPTCY
ACT, 11 U.S.C. SEC. 46.  SEE TAUBEL-SCOTT-KITZMILLER CO. V. FOX,
SUPRA. 

PETITIONER ARGUES, HOWEVER, THAT ACTUAL POSSESSION IS NECESSARY TO
REMOVE THE GOVERNMENT'S TAX LIENS FROM THE SUBORDINATE PRIORITY
ACCORDED THEM UNDER SEC. 676 (3) OF THE BANKRUPTCY ACT.  /7/ THE
ARGUMENT IS WITHOUT MERIT.  UNITED STATES V. EILAND, 223 F.2D 118 (CA4
1955); ROSENBLUM V. UNITED STATES, 300 F.2D 843 (CA1 1962).  SECTION
67C(3) HAS NO BEARING ON THE QUESTION OF SUMMARY JURISDICTION; IT
RELATES ONLY TO THE PRIORITY THAT IS ACCORDED TAX LIENS ON PROPERTY
THAT HAS ALREADY BEEN DETERMINED TO BE WITHIN THE BANKRUPTCY COURT'S
JURISDICTION AS PART OF THE BANKRUPT ESTATE.  HERE WE ARE CONCERNED NOT
WITH PRIORITY OF TAX LIENS BUT WITH THE EFFECT OF A TAX LEVY. 
HISTORICALLY, SERVICE OF NOTICE HAS BEEN SUFFICIENT TO SEIZE A DEBT,
MILLER V. UNITED STATES, 11 WALL.  268, 297 (1971), AND NOTICE OF LEVY
AND DEMAND ARE EQUIVALENT TO SEIZURE.  SEE E.G., SIMS V. UNITED STATES,
359 U.S. 108 (1959).  THE LEVY, THEREFORE, GAVE THE UNITED STATES FULL
LEGAL RIGHT TO THE $38,000 LEVIED UPON AS AGAINST THE CLAIM OF THE
PETITIONER RECEIVER. 

PETITIONER'S FINAL CONTENTION IS THAT THE GENERAL RESTRICTION ON A
BANKRUPTCY COURT'S SUMMARY JURISDICTION WAS ALTERED BY THE ENACTMENT IN
1938 OF SEC. 2A (21) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 11 (A) (21),
WHICH GRANTS BANKRUPTCY COURTS JURISDICTION TO "(REQUIRE ... ASSIGNEES
FOR THE BENEFIT OF CREDITORS ... TO DELIVER THE PROPERTY IN THEIR
POSSESSION OR UNDER THEIR CONTROL TO THE RECEIVER ...."  THIS
PROVISION, HOWEVER, WAS DESIGNED TO "CLARIFY) THE JURISDICTION OF THE
(BANKRUPTCY) COURT," S.REP.  NO. 1916, 75TH CONG., 3D SESS., 12 (1938),
AND WAS "SIMPLY DECLARATORY OF PRIOR CASE LAW," 1 COLLIER ON
BANKRUPTCY, SUPRA, 2.78 (3), P. 390.26.  UNDER THAT CASE LAW, AN
ASSIGNEE FOR THE BENEFIT OF CREDITORS WHO HOLDS ASSETS AS "A MERE NAKED
BAILEE FOR THE CREDITORS ... HAS NO RIGHT TO RETAIN THE POSSESSION AS
AGAINST THE TRUSTEE IN BANKRUPTCY."  IN RE MC CRUM, 214 F. 207, 209
(CA2 1914).  HERE THE ASSIGNEE HELD AS CUSTODIAN FOR THE UNITED STATES,
A BONA FIDE ADVERSE CLAIMANT.  GALBRAITH V. VALLEY, SUPRA.  /8/

                         AFFIRMED. 

/1/ THE GRANT WAS LIMITED TO THE FOLLOWING QUESTIONS PRESENTED IN
THE PETITION: 

"1.  ' WHETHER THE COURT OF APPEALS INCORRECTLY GRANTED TO THE
UNITED STATES A PRIORITY BASED UPON THE INTERNAL REVENUE CODE OF 1954
FOR TAXES IN VIOLATION OF AND CONTRARY TO THE PRIORITIES FOR PAYMENT OF
CLAIMS ESTABLISHED BY THE BANKRUPTCY ACT?' 

"2.  ' WHETHER THE COURT OF APPEALS INCORRECTLY HELD THAT SERVICE OF
A NOTICE OF LEVY UPON AN ASSIGNEE FOR THE BENEFIT OF CREDITORS
SUBSEQUENT TO THE ASSIGNMENT REDUCED THE BANKRUPT'S PROPERTY THEN HELD
BY THE ASSIGNEE TO THE CONSTRUCTIVE POSSESSION OF THE UNITED STATES?' 

"3.  ' WHETHER THE COURT OF APPEALS INCORRECTLY DETERMINED THAT THE
BANKRUPTCY COURT LACKED SUMMARY JURISDICTION TO ADJUDICATE THE
CONTROVERSY BEFORE IT WITHOUT THE CONSENT OF THE UNITED STATES?'" 

/2/ THERE IS A SIGNIFICANT DIFFERENCE IN THE RESULT OF A SUMMARY
ADJUDICATION OF THE TAX CLAIM IN THE BANKRUPTCY COURT AND THE RESULT OF
ITS ADJUDICATION IN A PLENARY SUIT: 

" THE DIFFERENCE BETWEEN A SUMMARY AND PLENARY PROCEEDING IN THIS
CONTEXT IS NOT MERELY A MATTER OF THE RELATIVE FORMALITY OF THE
RESPECTIVE PROCEDURES.  THE CONSEQUENCE OF A SUMMARY TURNOVER ORDER IS
TO SUBJECT THE PROPERTY IN QUESTION TO ADMINISTRATION AS PART OF THE
BANKRUPT ESTATE.  WHERE THE GOVERNMENT HAS A TAX LIEN ON THE PROPERTY,
THE CONSEQUENCE OF THE TURNOVER IS TO SUBORDINATE THAT LIEN TO THE
EXPENSES OF ADMINISTRATION AND PRIORITY WAGE CLAIMS.  SEE SECTION 67C
(3) OF THE BANKRUPTCY ACT, 11 U.S.C. 107 (C)(3).  IN CONTRAST, IF THE
PROPERTY IS NOT SUBJECT TO SUMMARY TURNOVER, IT MAY BE BROUGHT INTO THE
BANKRUPT ESTATE ONLY IT THE RECEIVER IS ABLE TO DEFEAT THE GOVERNMENT'S
UNDERLYING TAX CLAIM IN A PLENARY PROCEEDING, I.E., A SUIT FOR REFUND. 
THUS, IN A CASE WHERE THE UNDERLYING TAX CLAIM IS SOUND, FOR THE
GOVERNMENT THE DIFFERENCE BETWEEN HOLDING THE PROPERTY SUBJECT TO PRIOR
PAYMENT OF ADMINISTRATIVE AND PRIORITY WAGE CLAIMS AND HOLDING IT
OUTRIGHT."  BRIEF FOR UNITED STATES 19. 

/3/ THE UNFILED TAX LIEN WAS VALID AGAINST ALL PERSONS EXCEPT
PURCHASERS, HOLDERS OF SECURITY INTERESTS, MECHANIC'S LIENORS, AND
JUDGMENT LIEN CREDITORS.  29 U.S.C. SEC. 6323(A).  PETITIONER CONCEDES
THAT THE ASSIGNEE DID NOT FALL WITHIN ANY OF THESE CATEGORIES. 

/4/ RESPONDENT DOES NOT CONTEND THAT THE UNFILED LIEN FOLLOWED THE
PROPERTY INTO THE HANDS OF GOOD-FAITH PURCHASERS FROM THE ASSIGNEE. 
BRIEF FOR UNITED STATES 14 N. 5.  AS INDICATED IN N. O, SUPRA, AN
UNFILED TAX LIEN IS INVALID AGAINST PURCHASERS.  26 U.S.C. SEC. 6323
(A). 

/5/ UNITED STATES V. BESS, 357 U.S. 51 (1958), IS NOT TO THE
CONTRARY.  BESS HELD THAT A TAX LIEN EFFECTED DURING AN INSURED'S LIFE
AGAINST THE CASH SURRENDER VALUE OF A LIFE INSURANCE POLICY ATTACHED
AFTER HIS DEATH TO INSURANCE PROCEEDS IN THE HANDS OF THE BENEFICIARY
BUT ONLY IN THE AMOUNT OF THE CASH SURRENDER VALUE.  THE LIMITATION
RECOGNIZED THAT THE TAXPAYER IN HIS LIFETIME COULD NOT HAVE REALIZED A
LARGER AMOUNT AND THUS THERE WAS NO GREATER "PROPERTY" OR "RIGHTS TO
PROPERTY" TO WHICH THE LIEN COULD HAVE ATTACHED AB INITIO.  ID., AT 55
56. 

/6/ THE CLAIMANT MAY, HOWEVER, CONSENT TO SUMMARY ADJUDICATION IN
THE BANKRUPTCY COURT.  CLINE V. KAPLAN, 323 U.S. 97, 99 (1944).  THE
UNITED STATES REFUSED CONSENT IN THIS CASE. 

/7/ SECTION 67C (3) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 107
(C)(3), PROVIDES IN PERTINENT PART:

' EVERY TAX LIEN ON PERSONAL PROPERTY NOT ACCOMPANIED BY POSSESSION
SHALL BE POSTPONED IN PAYMENT TO THE DEBTS SPECIFIED IN CLAUSES (1) AND
(2) OF SUBDIVISION (A) OF SECTION 104 OF THIS TITLE...." 

PERTINENT PART: 

"(A) THE DEBTS TO HAVE PRIORITY, IN ADVANCE OF THE PAYMENT OF
DIVIDENDS TO CREDITORS, AND TO BE PAID IN FULL OUT OF BANKRUPT ESTATES,
AND THE ORDER OF PAYMENT, SHALL BE (1) THE COSTS AND EXPENSES OF
ADMINISTRATION ..., (2) WAGES AND COMMISSIONS, NOT TO EXCEED $600 TO
EACH CLAIMANT, WHICH HAVE BEEN EARNED WITHIN THREE MONTHS BEFORE THE
DATE OF THE COMMENCEMENT OF THE PROCEEDING, DUE TO WORKMEN, SERVANTS,
CLERKS, OR TRAVELING, OR CITY SALESMEN ...."     /8/ PETITIONER ALSO
RELIES ON SEC. 70A (8) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 110
(A)(8).  SECTION (70A (8) VESTS THE TRUSTEE OF THE BANKRUPT'S ESTATE
"WITH THE TITLE OF THE BANKRUPT AS OF THE DATE OF THE FILLING OF THE
PETITION...TO...PROPERTY HELD BY AN ASSIGNEE FOR THE BENEFIT OF
CREDITORS."  EVEN PETITIONER ARGUES, HOWEVER, THAT CHICAGOLAND ON
SEPTEMBER 1, 1971, HAD NO TITLE TO THE PROPERTY CONVEYED TO THE
ASSIGNEE.  BRIEF FOR PETITIONER 14.  IN ANY EVENT, THE PREBANKRUPTCY
LEVY DISPLACED ANY TITLE OF CHICAGOLAND, AND SEC. 70A (8) IS THEREFORE
INAPPLICABLE.     DENNIS E. QUAID ARGUED THE CAUSE FOR PETITIONER. 
WITH HIM ON THE BRIEFS WERE KEVIN J. GILLOGLY AND DANIEL C. AHREN. 

DEITH A. JONES ARGUED THE CAUSE FOR THE UNITED STATES.  WHTH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
CRAMPTON, AND CROMBIE J.D. GARRETT. 
..END :












VAN LARE V. HURLEY, 421 U.S. 338 


       VAN LARE, ACTING COMMISSIONER, DEPARTMENT SOCIAL SERVICES OF

           NEW YORK, ET AL. V. HURLEY ET AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN AND EASTERN DISTRICT OF NEW YORK

     NO. 74 - 453.  ARGUED MARCH 26, 1975--DECIDED MAY 19, 1975;

           TOGETHER WITH NO. 74 - 5054, TAYLOR ET AL. V. LAVINE,

           COMMISSIONER, DEPARTMENT OF SOCIAL SERVICES OF NEW YORK,

           ET AL., ON CERTIORARI TO THE UNTIED STATES COURT OF

           APPEALS FOR THE SECOND CIRCUIT. 

        NO. 74 - 453, 380 F.SUPP.  167, VACATED AND REMANDED; NO.
74

           - 5054, 497 F.2D 1208, REVERSED. 


    PETITIONERS IN NO. 74 - 5054 BROUGHT CLASS ACTIONS IN TWO

  DISTRICT COURTS CHALLENGING NEW YORK'S "LODGER" REGULATIONS,

  WHICH REQUIRE A PRO-RATA REDUCTION IN SHELTER ALLOWANCE OF A

  FAMILY RECEIVING AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC)

  SOLELY BECAUSE A PARENT ALLOWS A NONLEGALLY RESPONSIBLE PERSON TO

  RESIDE IN THE HOME.  PETITIONERS CLAIMED THAT THE STATE

  REGUATIONS CONFLICTED WITH A PROVISION OF THE SOCIAL SECURITY

  ACT, 42 U.S.C. SEC. 606(A), WHICH IN RELEVANT PART DEFINES A

  DEPENDENT CHILD AS ONE "WHO HAS BEEN DEPRIVED OF PARENTAL SUPPORT

  OR CARE BY REASON OF THE DEATH, CONTINUED ABSENCE FROM THE HOME,

  OR PHYSICAL OR MENTAL INCAPACITY OF A PARENT," AND IN

 IMPLEMENTING REGULATION, 45 CFR SEC. 233.90(A), WHICH PROVIDES

  THAT IN DETERMINING A CHILD'S FINANCIAL ELIGIBILITY AND THE

  AMOUNT OF THE ASSISTANCE PAYMENT "THE INCOME ONLY OF THE (LEGALLY

  OBLIGATED) PARENT ... WILL BE CONSIDERED AVAILABLE ... IN THE

  ABSENCE OF PROOF OF ACTUAL CONTRIBUTIONS."  PETITIONERS ALSO

  CONTENDED THAT THE STATE REGULATIONS WERE VIOLATIVE OF DUE

  PROCESS AND EQUAL PROTECTION.  EACH DISTRICT COURT HELD THAT THE

  NEW YORK REGULATIONS WERE IN CONFLICT WITH THE FEDERAL STATUTORY

  AND REGULATORY PROVISIONS.  THE COURT OF APPEALS HELD THAT THERE

WAS NO SUCH CONFLICT AND REVERSED THE JUDGMENTS AND REMANDED THE

  CASES FOR CONVENTION OF THREE-JUDGE COURT TO DECIDE THE

  CONSTITUTIONAL CHALLENGES.  THAT COURT SUSTAINED PETITIONERS' DUE

  PROCESS CLAIM.  THID COURT NOTED PROBABLE JURISDICTION OF THE

  APPEAL FROM THE THREE-JUDGE COURT HOLDING (NO. 74 - 453) AND

  GRANTED CERTIORARI IN THE CASE OF THE JUDGMENT OF THE COURT OF

  APPEALS (NO. 74 - 5054).  HELD:  THE NEW YORK "LODGER"

  REGULATIONS, WHICH ARE BASED ON THE ASSUMPTION THAT THE NONPAYING

  LODGER IS CONTRIBUTING TO THE WELFARE OF THE HOUSEHOLD, WITHOUT

  INQUIRY INTO WHETHER HE IN FACT DOES SO, VIOLATE THE SOCIAL

  SECURITY ACT AND IMPLEMENTING REGULATIONS.  PP. 344 - 348. 

   (A) A STATE IS BARRED FROM ASSUMNING THAT NONLEGALLY

RESPONSIBLE PERSONS WILL APPLY THEIR RESOURCES TO AID THE WELFARE

  CHILD, JING V. SMITH, 392 U.S. 309; LEWIS V. MARTIN, 397 U.S.

  552, YET UNDER THE NEW YORK REGULATIONS THE NONPAYING LODGER'S

  MERE PRESENCE RESULTS IN A DECREASE IN BENEFITS THOUGH HE MAY

  CONTRIBUTE NOTHING TO THE NEEDY CHILD.  PP. 346 - &47. 

     (B) THE NEW YORK REGULATIONS CANNOT BE JUSTIFIED ON THE GROUND

  THAT THE LODGER'S PRESENCE ESTABLISHES THE EXISTENCE OF EXCESS

  SPACE BECAUSE IF THAT WERE SO THE ALLOWANCE WOULD REMAIN REDUCED

  AFTER THE LODGER LEAVES, WHICH IS NOT THE CASE.  P. 347. 

(C) THE REGULATIONS DO NOT PROHIBIT LODGERS FROM LIVING IN

WELFARE HOMES AND THEREFORE CANNOT BE JUSTIFIED ON THE GROUND

  THAT THEY ARE DESIGNED TO PREVENT LODGERS (WHO ARE INELIGIBLE FOR

  WELFARE) FROM RECEIVING WELFARE BENEFITS.  PP. 374 - 348. 

     BREENAN, J., DELIVERED THE OPINION OF THE COURT IN WHICH

  BURGER, C.J., AND DOUGLAS, STEWART, WHITE, MARSHALL, BLACKMUN,

  AND POWELL, JJ., JOINED REHNQUIST, J., FILED A DISSENTING

  OPINION, POST, P. 348. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER NEW YORK REGULATIONS REDUCING PRO
RATA THE SHELTER ALLOWANCE PROVIDED RECIPIENTS OF AID TO FAMILIES WITH
DEPENDENT CHILDREN (APDC) TO THE EXTENT THERE ARE NONPAYING LODGERS
LIVING IN THE HOUSEHOLD CONFLICT WITH THE SOCIAL SECURITY ACT AND
FEDERAL REGULATIONS.  WE CONCLUDE THAT THE STATEP PROVISIONS CONFLICT
WITH FEDERAL LAW AND ARE THEREFORE INVALID.  KING V. SMITH, 392 U.S.
309 (1968); LEWIS V. MARTIN, 397 U.S. 552 (1970); TOWNSEND V. SWANK,
404 U.S. 282 (1971). 

        I 

AFDC IS A CATEGORICAL PUBLIC ASSISTANCE PROGRAM ESTABLISHED BY THE
SOCIAL SECURITY ACT OF 1935.  ITS OPERATION HAS BEEN DESCRIBED IN
SEVERAL RECENT OPINIONS.  SEE, E.G., ROSADO V. WYMAN, 397 U.S. 397, 408
(1970); KING V. SMITH, SUPRA, AT 313.  AFDC PROVIDES FEDERAL FUNDS TO
STATES ON A MATCHING FUNDS BASIS TO AID THE "NEEDY CHILD ... WHO HAS
BEEN DEPRIVED OF PARENTAL SUPPORT OF CARE BY REASON OF THE DEATH,
CONTINUED ABSENCE FROM THE HOME, OR PHYSICAL OR MENTAL INCAPACITY OF A
PARENT, AND WHO IS LINING WITH" ANY OF THE SEVERAL LISTED RELATIVES. 
42 U.S.C. SEC. 606 (A).  STATES THAT SEEK TO QUALIFY FOR FEDERAL AFDC
FUNDING MUST OPERATE A PROGRAM NOT IN CONFLICT WITH THE SOCIAL SECURITY
ACT.  TOWNSEND V. SWANK, SUPRA, AT 286. 

EACH OF THE PETITIONERS IN NO. 74 - 5054 RECEIVES AFDC ON BEHALF OF
HERSELF AND HER MINOR CHILDREN.  THIS INCLUDES A SHLETER ALLOWANCE
COMPUTED AS AN ITEM OF NEED SEPARATE FROM OTHER NECESSITIES SUCH AS
FOOD AND CLOTHING.  NEW YORK SOC. SERV. LAW SEC. 131-A.  EACH
PETITIONER'S SHELTER ALLOWANCE WAS REDUCED BY NEW YORK OFFICIALS
BECAUSE SHE ALLOWED A PERSON NOT A RECIPIENT OF AFCE AND WHO HAD NO
LEGAL OBLIGATION TO SUPPORT HER FAMILY TO RESIDE IN THE HOUSEHOLD.  /1/
THE REDUCTION WAS AUTHORIZED BY NEW YORK REGULATIONS WHICH PROVIDE: 

     "18 N.Y.C.R.R. SEC. 352.31: 

     "(A) FOR APPLICANT OR RECIPIENT. 

     * * * * * 

     "(3) WHEN A FEMALE APPLICANT OR RECIPIENT IS LIVING WITH A MAN

  TO WHOM SHE IS NOT MARRIED, OTHER THAN ON AN OCCASIONAL OR

  TRANSIENT BASIS, HIS AVAILABLE INCOME AND RESOURCES SHALL BE

  APPLIED IN ACCORDANCE WITH THE FOLLOWING:

        * * * * * 

     "(IV) WHEN THE MAN IS UNWILLING TO ASSUME RESPONSIBILITY FOR

  THE WOMAN OR HER CHILDREN, AND THERE ARE NO CHILDREN OF WHICH HE

  IS THE ACKNOWLEDGED OR ADJUDICATED FATHER, HE SHALL BE TREATED AS

  A LODGER IN ACCORDANCE WITH SECTION 352.30 (D)."  /2/ "18

  N.Y.C.R.R. SEC. 352.30:  "352.30 PERSONS INCLUDED IN THE BUDGET. 

        * * * * * 

     "(D) A NON-LEGALLY RESPONSIBLE RELATIVE OR UNRELATED PERSON IN

THE HOUSEHOLD, WHO IS NOT APPLYING FOR NOR RECEIVING PUBLIC

  ASSISTANCE SHALL NOT BE INCLUDED IN THE BUDGET AND SHALL BE

  DEEMED TO BE A LODGER OR BOARDING LODGER.  THE AMOUNT WHICH THE

  LODGER OR BOARDING LODGER PAYS SHALL BE VERIFIED AND TREATED AS

  INCOME TO THE FAMILY.  FOR THE LODGER, THE AMOUNT IN EXCESS OF

  $15 PER MONTH SHALL BE CONSIDERED AS INCOME; FOR SUCH BOARDING

  LODGERS, THE AMOUNT IN EXCESS OF $60 PER MONTH SHALL BE

  CONSIDERED AS INCOME.  IN THE EVENT A LODGER DOES NOT CONTRIBUTE

  AT LEAST $15 PER MONTH, THE FAMILY'S SHELTER ALLOWANCE INCLUDING

  FUEL FOR HEATING, SHALL BE A PRO RATA SHARE OF THE REGULAR

  SHELTER ALLOWANCE."  (EMPHASIS SUPPLIED.) 

NO LODGER OF ANY PETITIONER CONTRIBUTED $15 A MONTH, AND PURSUANT TO
THE ITALICIZED SENTENCE, EACH PETITIONER'S SHELTER ALLOWANCE WAS
THEREFORE REDUCED BY A PRO RATA SHARE.  FOR EXAMPLE, THE SHELTER
ALLOWANCE OF $150 MONTHLY BEING PAID TO A FAMILY OF FOUR WAS REDUCED TO
$120 AFTER THE LODGER MOVED IN. 

PETITIONERS CHALLENGED THE NEW YORK REGULATIONS IN SEPARATE ACTIONS
IN TWO FEDERAL DISTRICT COURTS.  /3/ THEY ALLEGED THAT IN MAKING THE
PRESENCE OF HTE LODGER A BASIS FOR ASSUMING THE AVAILABILITY OF INCOME,
THE REGUALTIONS WERE INVALID FOR CONFLICT WITH 42 U.S.C. SEC. 606 (A),
SUPRA, AND THE FOLLOWING REGULATION, 45 CFR SEC. 233.90 (A) (1974),
THAT IMPLEMENTS THAT STATUTE: 

     " A STATE PLAN UNDER TITLE IV- A OF THE SOCIAL SECURITY ACT

  (RELATING TO THE AFDC PROGRAM) MUST PROVIDE THAT THE

  DETERMINATION WHETHER A CHILD HAS BEEN DEPRIVED OF PARENTAL

  SUPPORT OR CARE BY REASON OF THE DEATH, CONTINUED ABSENCE FROM

  THE HOME, OR PHYSICAL OR MENTAL INCAPACITY OF A PARENT, OF (IF

 THE STATE PLAN INCLUDES SUCH CASES) THE UNEMPLOYMENT OF HIS

  FATHER, WILL BE MADE ONLY IN RELATION TO THE CHILD'S NATURAL OR

  ADOPTIVE PARENT, OR IN RELATION TO THE CHILD'S STEPPARENT WHO IS

  CEREMONIALLY MARRIED TO TEH CHILD'S NATURAL OR ADOPTIVE PARENT

  AND IS LEGALLY OBLIGATED TO SUPPORT THE CHILD UDER STATE LAW OF

  GENERAL APPLICABILITY WHICH REQUIRES STEPPARENTS TO SUPPORT

  STEPCHILDREN TO THE SAME EXTEND (SIC) THAT NATURAL OR ADOPTIVE

  PARENTS ARE REQUIRED TO SUPPORT THEIR CHILDREN.  UNDER THIS

  REQUIREMENT, THE INCLUSION IN THE FAMILY, OR THE PRESENCE IN THE

HOME, OF A 'SUBSTITUTE PARENT' OR 'MAN-IN-THE -HOUSE' OR ANY

  INDIVIDUAL OTHER THAN ONE DESCRIBED IN THIS PARAGRAPH IS NOT AN

  ACCEPTABLE BASIS FOR A FINDING OF INELIGIBILITY OR FOR ASSUMING

  THE AVAILABILITY OF INCOME BY THE STATE.  IN ESTABLISHING

  FINANCIAL ELIGIBILITY AND THE AMOUNT OF THE ASSISTANCE PAYMENT,

  ONLY SUCH NET INCOME OF THE ASSISTANCE PAYMENT, ONLY SUCH NET

  INCOME AS IS ACTUALLY AVAILABLE FOR CURRENT USE ON A REGULAR

  BASIS WILL BE CONSIDERED, AND THE INCOME ONLY OF THE PARENT

  DESCRIBED IN THE FIRST SENTENCE OF THIS PARAGRAPH WILL BE

  CONSIDERED AVAILABLE FOR CHILDREN IN THE HOUSEHOLD IN THE ABSENCE

  OF PROOF OF ACTUAL CONTRIBUTIONS."  (EMPHASIS SUPPLIED.) 

WITHOUT REACHING THE RECIPIENTS' CONSTITUTIONAL CHALLENGES--, DENIAL
OF DUE PROCESS AND EQUAL PROTECTION, AND INFRINGEMENT OF RIGHTS OF
PRIVACY AND FREE ASSOCIATION--, EACH DISTRICT COURT ADJUDGED THE STATE
REGULATIONS TO BE INVALID FOR CONFLICT WITH 42 U.S.C. SEC. 606 (A) AND
45 CFR SEC. 233.90 (A), SUPRA, AND GRNATED DECLARATORY AND INJUNCTIVE
RELIEF.  /4/  BOTH JUDGMENTS WERE APPEALED TO THE COURT OF APPEALS FOR
THE SECOND CIRCUIT.  THE COURT OF APPEALS HELD THAT THE NEW YORK RULES
WERE NOT IN CONFLICT WITH FEDERAL LAW, REVERSED THE JUDGMENTS, AND
REMANDED FOR CONVENTION OF A THREE-JUDGE COURT TO DECIDE THE
CONSTITUTIONAL CHALLENGES.  TAYLOR V. LAVINE, 497 F.2D 1208 (1974). 
THE THREE-JUDGE COURT THAT WAS CONVENED SUSTAINED THE DUE PROCESS
CHALLENGE TO THE NEW YORK RULES.  380 F. SUPP. 167 (ED & SDNY 1974). 
WE NOTED PROBABLE JURISDICTION OF APPELLANTS' APPEAL FROM THE THREE
JUDGE COURT HOLDING, 419 U.S. 1045 (1974) (NO. 74 - 453), AND ALSO
GRANTED CERTIORARI TO THE JUDGMENT OF THE COURT OF APPEALS.  419 U.S.
1046 (1974) (NO. 74 - 5054).  WE HOLD THAT THE COURT OF APPEALS ERRED
IN NO. 74 - 5054 AND REVERSE.  SINCE IN THAT CIRCUMSTANCE WE NEED NOT
ADDRESS THE CONSTITUTIONAL DECISION IN NO. 74 - 453, WE VACATE THE
JUDGMENT IN THAT CASE AND REMAND WITH DIRECTIONS TO DISMISS AS MOOT. 
CF. UNITED STATES V. MUNSINGWEAR, INC., 340 U.S.36 (1950). 

        II 

TITLE 42 U.S.C. SEC. 606 (A) WAS PREVIOUSLY CONSTRUED IN KING V.
SMITH, 392 U.S. 309 (1968).  THAT CASE INVOLVED AN ALABAMA "SUBSTITUTE
FATHER" REGULATION THAT DENIED AFDC BENEFITS TO CHILDREN OF A MOTHER
WHO COHABITED IN OR OUTSIDE HER HOME WITH AN ABLE-BODIED MAN.  IT WAS
IRRELEVANT UNDER THE STATE REGULATION WHETHER THE MAN WAS LEGALLY
OBLIGATED TO SUPPORT THE CHILDREN OR WHETHER HE DID IN FACT CONTRIBUTE
TO THEIR SUPPORT.  ALABAMA CONTENDED THAT ITS RULE SIMPLY DEFINED
NONABSENT "PARENT" UNDER 42 U.S.C. SEC. 606 (A), SUPRA.  THE REGULATION
WAS SOUGHT TO BE JUSTIFIED AS HAVING THE PURPOSE OF DISCOURAGING
ILLICIT SEXUAL RELATIONSHIPS AND OF PUTTING "INFORMAL"  FAMILIES ON A
PAR WITH ORDINARY FAMILIES.  WE CONCLUDED THAT THIS WAS AN INSUFFICIENT
JUSTIFICATION, HOLDING THAT IT IS "INCONCEIVABLE ... THAT ALABAMA IS
FREE TO DISCOURAGE IMMORALITY AND ILLEGITIMACY BY THE DEVICE OF
ABSOLUTE DISQUALIFICATION OF NEEDY CHILDREN."  KING V. SMITH, SUPRA, AT
326.  FOR, IN LIGHT OF THE PURPOSE OF AFDC TO AID NEEDY CHILDREN, WE
HELD, ONTHE STATUTORY LANGUAGE AND LEGISLATIVE HISTORY, THAT THE TERM
"PARENT" IN SEC. 606 (A) MUST BE READ TO INCLUDE "ONLY THOSE PERSONS
WITH A LEGAL DUTY OF SUPPORT."  392 U.S., AT 327.  A BROADER DEFINITION
WOULD FAIL TO PROVIDE THE ECONOMIC SECURITY FOR NEEDY CHILDREN WHICH
WAS CONGRESS' PRIMARY GOAL.  ID., AT 329 - 330.  THUS THE ALABAMA
REGULATION WAS INVALID BECAUSE ITS DEFINITION OF "PARENT" CONFLICTED
WITH THAT OF THE SOCIAL SECURITY ACT.  ID., AT 333. 

THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) CODIFIED THE
HOLDING OF KING V. SMITH IN 45 CFR SEC. 233.90 (A), SUPRA, THE
REGULATION AT ISSUE IN THE INSTANT CASE.  /5/ ITS KEY PROVISION
SPECIFIES THAT IN DETERMINING A CHILD'S FINANCIAL ELIGIBILITY AND THE
AMOUNT OF THE ASSISTANCE PAYMENT, "THE INCOME ONLY OF THE (LEGALLY
OBLIGATED) PARENT ... WILL BE CONSIDERED AVAILABLE ... IN THE ABSENCE
OF PROOF OF ACTUAL CONTRIBUTIONS."  45 CFR SEC. 233.90 (A), SUPRA.  WE
APPLIED THIS REGULATION IN LEWIS V. MARTIN, 397 U.S. 552 (1970).  LEWIS
PRESENTED THE QUESTION OF HTE VALIDITY OF A CALIFORNIA RULE WHICH
PROVIDED THAT IN COMPUTING PAYMENTS TO NEEDY CHILDREN WHO LIVED WITH
THEIR MOTHER AND STEPFATHER OR "AN ADULT MALE PERSON ASSUMING THE ROLE
OF SPOUSE" (MARS), CONSIDERATION SHOULD BE GIVEN TO THE INCOME OF THE
STEPFATHER OR MARS.  ID., AT 554.  WE HELD THE CALIFORNIA RULE INVALID
AS IN CONFLICT WITH THE SOCIAL SECURITY ACT., THE HEW REGULATION, 45
CFR SEC. 233.90 (A), AND KING V. SMITH, SUPRA.  WE SAID THAT "(IN THE
ABSENCE OF PROOF OF ACUTAL CONTRIBUTION, CALIFORNIA MAY NOT CONSIDER
THE CHILD'S 'RESOURCES' TO INCLUDE EITHER THE INCOME OF A NONADOPTING
STEPFATHER WHO IS NOT LEGALLY OBLIGATED TO SUPPORT THE CHILD AS IS A
NATURAL PARENT, OR THE INCOME OF A MARS--  WHATEVER THE NATURE OF HIS
OBLIGATION TO SUPPORT."  397 U.S., AT 559 - 560.  IN SHORT, WE HELD
THAT THE SOCIAL SECURITY ACT PRECLUDES TREATING A PERSON WHO IS NOT A
NATURAL OR ADOPTIVE PARENT AS A BREADWINNER "UNLESS THE BREAD IS
ACTUALLY SET ON THE TABLE."  ID., AT 559. 

        III 

THUS THE NEW YORK REGULATIONS AT ISSUE ARE ALSO INVALID.  THIS IS
CLEARLY SO INSOFAR AS THEY ARE BASED ON THE ASSUMPTION THAT THE
NONPAYING LODGER IS CONTRIBUTING TO THE WELFARE HOUSEHOLD, WITHOUT
INQUIRY INOT WHETHER HE IN FACT DOES SO.  SECTION 352.31 (A) (3),
SUPRA, PROVIDES THAT "(WHEN A ... RECIPIENT IS LIVING WITH A MAN TO
WHOM SHE IS NOT MARRIED ... HIS AVAILABLE INCOME AND RESOURCES SHALL BE
APPLIED IN ACCORDANCE WITH THE FOLLOWING ... (IV) ... HE SHALL BE
TREATED AS A LODGER IN ACCORDANCE WITH SECTION 352.30 (D)."  (EMPHASIS
SUPPLIED.)  PLAINLY TREATING SOMEONE AS A LODGER IS AN IMPERMISSIBLE
MEANS OF "APPLYING AVAILABLE INCOME AND RESOURCES."  UNDER SEC. 352.30
(D), SUPRA, WHEN A LODGER PAYS LESS THAN $15 A MONTH, THE FAMILY'S
SHELTER ALLOWANCE IS REDUCED PRO RATA.  RESPONDENTS THEMSELVES CONCEDE
IN THIS COURT THAT THE REGULATIONS ARE DESIGNED SO THAT THE LODGER WILL
NOT "BE EXCUSED FROM PROVIDING HIS SHARE OF SHELTER COST."  BRIEF FOR
RESPONDENTS IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI 9. 

THUS UNDER THE NEW YORK REGULATIONS THE NONPAYING LODGER'S MERE
PRESENCE RESULTS IN A DECREASE IN BENEFITS YET THE LODGER, LIKE THE
ALABAMA "SUBSTITUTE FATHER" OR THE CALIFORNIA " MARS," MAY BE
CONTRIBUTING NOTHING TO THE NEEDY CHILD.  KING V. SMITH, SUPRA, AND
LEWIS V. MARTIN, SUPRA, CONSTRUE THE FEDERAL LAW AND REGULATIONS AS
BARRING THE STATES FROM ASSUMING THAT NONLEGALLY RESPONSIBLE PERSONS
WILL APPLY THEIR RESOURCES TO AID THE WELFARE CHILD.  THOSE CASES
THEREFORE COMPEL A REVERSAL OF THE JUDGMENT OF THE COURT OF APPELAS. 

RESPONDENTS ARGUE, HOWEVER, THAT IN ANY EVENT THE NEW YORK
REGULATIONS MAY BE JUSTIFIED ON OTHER GROUNDS.  THEY ARGUE FIRST THAT
THE PRESENCE OF THE LODGER IS EVDENCE THAT THE AFDC FAMILY HAS EXCESS
ROOM AND THEREFORE THAT ITS SHELTER ALLOWANCE EXCEEDS ITS NEEDS.  THAT,
HOWEVER, IS NOT HOW THE NEW YORK REGULATIONS ARE APPLIED.  WHEN A
NONPAYING LODGER NOVES IN, THE SHELTER ALLOWANCE IS REDUCED PRO RATA
WITH NO REGARD TO SPACE CONSIDERATIONS.  WHEN THE LODGER MOVES OUT THE
ALLOWANCE IS RETURNED TO ITS ORIGINAL AMOUNT.  THAT PRACTICE CLEARLY
REVEALS THAT THE EXISTENCE OF EXCESS SPACE IS NOT THE BASIS OF THE
REDUCTION, BECAUSE OTHERWISE THE ALLOWANCE WOULD REMAIN REDUCED AFTER
THE LODGER LEAVES.  THUS, THE FACT THAT THE ALLOWANCE VARIES WITH THE
LODGER'S PRESENCE DEMONSTRATES THAT IT IS KEYED, AS THE REGULATIONS
PLAINLY IMPLY, TO THE IMPERMISSIBLE ASSUMPTION THAT THE LODGER IS
CONTRIBUTING INCOME TO THE FAMILY.  /6/ 

ANOTHER, SOMEWHAT RELATED, JUSTIFICATION ASSERTED IS THAT THE
SHELTER ALLOWANCE IS REDUCED TO PREVENT LODGERS, WHO BY DEFINITION ARE
INELIGIBLE FOR WELFARE, FROM RECEIVING WELFARE BENEFITS.  THE
REGULATIONS, HOWEVER, DO NOT PROHIBIT LODGERS FROM LIVING IN WELFARE
HOMES.  THE LODGER MAY STAY ON AFTER THE ALLOWANCE IS REDUCED, AND THE
STATE TAKES NO FURTHER ACTION.  /7/ THE ONLY VICTIM OF THE STATE
REGULATIONS IS THUS THE NEEDY CHILD WHO SUFFERS REDUCED BENEFITS.  BUT
STATES MAY NOT SEEK TO ACCOMPLISH POLICIES AIMED AT LODGERS BY
DEPRIVING NEEDY CHILDREN OF BENEFITS.  KING V. SMITH, SUPRA, AT 326;
LEWIS V. MARTIN, SUPRA.     THE JUDGMENT IN NO. 74 - 5054 IS REVERSED
AND THE JUDGMENT IN NO. 74 - 453 IS VACTED AND REMANDED WITH DIRECTIONS
TO DISMISS AS MOOT. 

                                  IT IS SO ORDERED. 

/1/ PETITIONER HURLEH'S LODGER WAS AN UNRELATED MALE FRIEND,
PETITIONER TAYLOR'S WAS HER SISTER, AND PETITIONER OTEY'S WAS HER 23
YEAR-OLO SON. 

/2/ EFFECTIVE JULY 26, 1974, AFTER THE COURT OF APPEALS DECISION IN
NO. 74 - 5054, SEC. 352.31 (A) (3) WAS AMENDED TO PROVIDE: 

"(3) WHEN AN APPLICANT OR RECIPIENT IS LIVING, OTHER THAN ON AN
OCCASIONAL OR TRANSIENT BASIS, WITH A PERSON TO WHOM SUCH APPLICANT OR
RECIPIENT IS NOT MARRIED, THE AVAILABLE INCOME AND RESOURCES OF SUCH
PERSON SHALL BE APPLIED IN ACCORDANCE WITH TEH FOLLWOING:

* * * * * 

"(IV) WHEN THE PERSON IS UNWILLING TO ASSUME RESPONSIBILITY FOR THE
APPLICANT OR RECIPIENT OR HIS OR HER CHILDREN AND THERE ARE NO CHILDREN
FOR WHOM SUCH PERSON IS LEGALLY RESPONSIBLE, SUCH PERSON SHALL BE
TREATED AS A LODGER IN ACCORDANCE WITH SUBDIVISION (D) OF SECTION
352.30 OF THIS PART." 

EVEN PRIOR TO THIS AMENDMENT, THE PRO RATA REDUCTION IN SHELTER
ALLOWANCE WAS APPLIED WITHOUT REGARD TO THE GENDER OF THE NONPAYING
LODGER.  SEE N. 1, SUPRA.  HIS WAS APPARENTLY BECAUSE THE REDUCTIONS
WERE PURSUANT TO 18 N.Y.C.R.R. SEC. 352.30 (D), WHICH MAKES NO
REFERENCE TO GENDER. 

/3/ PETITIONER HURLEY'S ACTION WAS BROUGHT IN THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK.  HURLEY V. VAN LARE, 72 CIV. 3423. 
PETITIONERS TAYLOR AND OTEY BROUGHT THEIR ACTION IN THE EASTERN
DISTRICT OF NEW YORK.  TAYLOR V. LAVINE, 73 CIV. 699.  EACH DISTRICT
COURT CERTIFIED CLASS ACTION STATUS FOR THE CASE BEFORE IT, THE CLASS
CONSISTING OF "ALL RESIDENTS OF THE STATE OF NEW YORK WHO ARE OR WERE
OR WILL BE RECEIVING PUBLIC ASSISTANCE, AND WHO HAVE HAD THEIR GRANTS
OF PUBLIC ASSISTANCE REDUCED, TERMINATED, SUSPENDED OR DENIED, OR WHO
ARE OR MAY BE THREATENED WITH REDUCTION TERMINATION, SUSPENSION, OR
DENIAL OF OF PUBLIC ASSISTANCE, SOLELY BECAUSE OF THE PRESENCE OF A
NONCONTRIBUTING LODGER IN THE HOME PURSUANT TO 18 NYCRR SEC. 352.31
(A)(3)(IV) AND 352.30 (D)."  APP.  99, 144. 

/4/ HURLEY V. VAN LARE, 365 F.SUPP.  186 (SDNY 1973).  THE OPINION
OF THE DISTRICT JUDGE IN TAYLOR V. LAVINE, SUPRA, IS UNREPORTED. 

/5/ AS ORIGINALLY PHRASED, THE REGULATION WAS NUMBERED 45 CFR SEC.
203.1.  SEE LEWIS V. MARTIN, 397 U.S. 552, 556 (1970). 

/6/ INDEED IT WOULD SEEM IMPLAUSIBLE TO ASSUME THAT THE PRESENCE OF
A LODGER ESTABLISHES BEYOND PERADVENTURE THE EXISTENCE OF EXCESS
SPACE.  A LODGER MIGHT SIMPLY BE SLEEPING ON THE COUCH IN AN ALREADY
OVERCROWDED APARTMENT. 

/7/ " PRORATION OF THE SHELTER ALLOWANCE LOWERS THE AMOUNT OF MONEY
AVAILABLE TO THE WELFARE FAMILY, BUT IT DOES NOT PREVENT THE FAMILY
FROM PROVIDING ITS LODGER WITH FREE LIVING SPACE BY DIVERTING PART OF
ITS BASIC GRANT TO PAY THE RENT.  . . . (THERE IS EVIDENCE THAT POOR
FAMILIES OFTEN FIND THE PRESENCE OF ALODGER WORTH A SACRIFICE IN
INCOME."  RECENT CASES, WELFARE LAW--AFCE-- PROATION OF SHELTER
ALLOWANCE, 88 HARV. L. REV. 654, 657 (1975).  SEE ALSO NOTE, AFDC
INCOME ATTIRBUTION:  THE MAN-IN-THE-HOUSE AND WELFARE GRANT REDUCTIONS,
83 HARV. L. REV. 1370, 1373 - 1374 (1970). 

MR. JUSTICE REHNQUIST, DISSENTING. 

I DO NOT THINK THAT THE NEW YORK NONPAYING-LODGERS REGULATION IS IN
CONFLICT WITH FEDERAL STATUTORY LAW, FOR THE REASONS STATED BY JUDGE
HAYS IN HIS OPINION FOR THE COURT OF APPEALS FOR THE SECOND CIRCUIT. 
TAYLOR V. LAVINE, 497 F.2D 1208 (1974).  I THEREFORE REACH THE
CONSTITUTIONAL ISSUES PRESENTED IN NO. 74 - 453, AND CONCLUDE THAT THE
REGULATION IS NOT CONSTITUTIONALLY IMPERMISSIBLE, FOR THE REASONS SET
FORTH BY JUDGE HAYS IN HIS DISSENTING OPINION IN HURLEY V. VAN LARE,
380 F.SUPP.  167, 177 (ED & SDNY 1974).  I WOULD THUS AFFIRM IN NO. 74
5054 AND REVERSE IN NO. 74 - 453. 

JUDITH A. GORDON, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR APPELLANTS IN NO. 74 - 453 AND RESPONDENTS IN NO. 74 - 5054. 
WITH HER ON THE BRIEFS WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, AND
SMAUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL. 

MARTIN A. SCHWARTZ ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES
IN NO. 74 - 453 AND PETITIONERS IN NO. 74 - 5054. 
..END :












MEEK V. PITTENGER, 421 U.S. 349 


       MEEK ET AL. V. PETTENGER, SECRETARY OF EDUCATION, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF PENNSYLVANIA

     NO. 73 - 1765.  ARGUED FEBRUARY 19, 1975--DECIDED MAY 19,

           1975; 374 F. SUPP. 639, AFFIRMED IN PART, REVERSED IN

           PART. 


    THE COMMONWEALTH OF PENNSYLVANIA IS AUTHORIZED TO PROVIDE

  DIRECTLY TO ALL CHILDREN ENROLLED IN NONPUBLIC ELEMENTARY AND

  SECONDARY SCHOOLS MEETING PENNSYLVANIA'S COMPULSORY-ATTENDANCE

  REQUIREMENTS "AUXILIARY SERVICES" (ACT 194) AND LOANS OF

  TEXTBOOKS "ACCEPTABLE FOR USE IN" THE PUBLIC SCHOOLS (ACT 195). 

  ACT 195 ALSO PROVIDES FOR LOANS DIRECTLY TO THE NONPUBLIC SCHOOLS

  OF "INSTRUCTIONAL MATERIALS AND EQUIPMENT, USEFUL TO THE

  EDUCATION" OF NONPUBLIC SCHOOL CHILDREN.  THE AUXILIARY SERVICES

  INCLUDE COUNSELING, TESTING, PSYCHOLOGICLA SERVICES, SPEECH AND

  HEARING THERAPY, AND RELATED SERVICES FOR EXCEPTIONAL, REMEDIAL,

  OR EDUCATIONALLY DISADVANTAGED STUDENTS, "AND SUCH OTHER SECULAR,

  NEEUTRAL, NON-IDEOLOGICAL SERVICES AS ARE OF BENEFIT TO NONPUBLIC

  SCHOOL CHILDREN" AND ARE PROVIDED FOR THOSE IN PUBLIC SCHOOLS. 

  THE INSTRUCTIONAL MATERIALS INCLUDE PERIODICALS, PHOTOGRAPHS,

  MAPS, CHARTS, RECORDINGS, AND FILMS.  THE INSTRUCTIONAL EQUIPMENT

  ICLUDES PROJECTORS, RECORDERS, AND LABORATORY PARAPHERNALIA. 

  APPELLANTS BROUGHT THIS SUIT IN THE DISTRICT COURT CHALLENGING

THE CONSTITUTIONALITY OF BOTH ACTS.  THE COURT UPHELD THE

 CONSTITUTIONALITY OF THE TEXTBOOK AND INSTRUCITONAL MATERIALS

  LOAN PROGRAMS AND THE AUXILIARY SERVICES PROGRAM BUT INVALIDATED

  THE INSTRUCTIONAL EQUIPMENT LOAN PROGRAM TO THE EXTENT THAT IT

  SANCTIONED THE LOAN OF EQUIPMENT "WHICH FROM ITS NATRUE CAN BE

  DIVERTED TO RELIGIOUS PURPOSES."  HELD:  ACT 194 AND ALL BUT THE

  TEXTBOOK LOAN PROVISIONS OF ACT 195 VIOLATE THE ESTABLISHMENT

  CLAUSE OF THE FIRST AMENDMENT AS MADE APPLICABLE TO THE STATES BY

  THE FOURTEENTH.  PP. 359 - 372; 388. 

     MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT WITH

  RESPECT TO PARTS I, II, IV, AND V, FINDING: 

     1.  THE DIRECT LOAN OF INSTRUCTIONAL MATERIALS AND EQUIPMENT
TO

  NONPUBLIC SCHOOLS AUTHORIZED BY ACT 195 HAS THE UNCONSTITUTIONAL

  PRIMARY EFFECT OF ESTABLISHING RELIGIONBECAUSE OF THE

  PREDOMINANTLY RELIGIOUS CHARACTER OF THE SCHOOLS BENEFITING FROM

THE ACT SINCE 75, OF PENNSYLVANIA'S NONPUBLIC SCHOOLS THAT COMPLY

  WITH THE COMPULSORY-ATTENDANCE LAW AND THUS QUALIFY FOR AID UNDER

  ACT 195 ARE CHURCH RELATED OR RELIGIOUSLY AFFILIATED.  THE

  MASSIVE AID THAT NONPUBLIC SCHOOLS THUS RECEIVE IS NEITHER

  INDIRECT NOR INCIDENTAL, AND EVEN THOUGH SUCH AID IS OSTENSIBLY

  LIMITED TO SECULAR INSTRUCTIONAL MATERIAL AND EQUIPMENT THE

  INESCAPABLE RESULT IS THE DIRECT AND SUBSTANTIAL ADVANCEMENT OF

  RELIGIOUS ACTIVITY.  PP. 362 - 366. 

     2.  ACT 194 ALSO VIOLATES TEH ESTABLISHMENT CLAUSE BECAUSE THE

  AUXILIARY SERVICES ARE PROVIDED AT PREDOMINANTLY CHURCH-RELATED

  SCHOOLS.  THE DISTRICT COURT ERRED IN HOLDING THAT SUCH SERVICES

  ARE PERMISSIBLE BECAUSE THEY ARE ONLY SECULAR, NEUTRAL, AND

  NONIDEOLOGICAL, SINCE EXCESSIVE ENTANGLEMENT WOULD BE REQUIRED

FOR PENNSYLVANIA TO BE ASSURED THAT THE PUBLIC SCHOOL

PROFESSIONAL STAFF MEMBERS WHO PROVIDE THE SERVICES DO NOT

ADVANCE THE RELIGIOUS MISSION OF THE CHURCH-RELATED SCHOOLS IN

  WHICH THEY SERVE.  CF. LEMON V. KURTZMAN, 403 U.S. 602, 618.  PP.

  367 - 372. 

     MR. JUSTICE STEWART, JOINED BY MR. JUSTICE BLACKNUM AND MR.

  JUSTICE POWELL, CONCLUDED IN PART III THAT ACT 195'S TEXTBOOK

  LOAN PROVISIONS, WHICH ARE LIMITED TO TESTBOOKS ACCEPTABLE FOR

  USE IN THE PUBLIC SCHOOLS, ARE CONSTITUTIONAL, SINCE THEY "MERELY

  (MAKE) AVAILABLE TO ALL CHILDREN THE VENEFITS OF A GENERAL

  PROGRAM TO LEND SCHOOLS BOOKS FREE OF CHARGE," AND THE "FINANCIAL

  BENEFIT IS TO PARENTS AND CHILDREN, NOT TO SCHOOLS," BOARD OF

  EDUCATION V. ALLEN, 392 U.S. 236, 243 - 244.  PP. 359 - 362. 

     MR. JUSTICE REHNQUIST, JOINED BY MR. JUSTICE WHITE, CONCLUDED

  THAT THE TEXTBOOK LOAN PROGRAM OF ACT 195 IS CONSTITUTIONALLY

  INDISTINGUISHABLE FROM THE PROGRAM UPHELD IN BOARD OF EDUCATION

  V. ALLEN, SUPRA.  P. 388. 

     STEWART, J., ANNOUNCED THE JDUGMENT OF THE COURT AND DELIVERED

  ANO OPINION OF THE COURT, IN WHICH BLACKMUN AND POWELL, JJ.,

  JOINED, AND IN ALL BUT PART III OF WHICH DOUGLAS, BRENNAN, AND

  MARSHALL, JJ., JOINED.  BRENNAN, J., FILED AN OPINION CONCURRING

  IN PART AND DISSENTING IN PART, IN WHICH DOUGLAS AND MARSHALL,

JJ., JOINED, POST, P. 373.  BURGER, C.J., FILED AN OPINION

CONCURRING IN THE JUDGMENT IN PART AND DISSENTING IN PART, POST,

  P. 385.  REHINQUIST, J., FILED AN OPINION CONCURRING IN THE

  JUDGMENT IN PART AND DISSENTING IN PART, IN WHICH WHITE, J.,

  JOINED, POST, P. 387. 

MR. JSUTICE STEWART ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
THE OPINION OF THE COURT (PARTS I, II, IF, AND V), TOGETHER WITH AN
OPINION (PART III), IN WHICH MR. JUSTICE BLACKMUN AND MR. JUSTICE
POWELL, JOINED. 

THIS CASE REQUIRES US TO DETERMINE ONCE AGAIN WHETHER A STATE LAW
PROVIDING ASSISTANCE TO NONPUBLIC, CHURCHRELATED, ELEMENTARY AND
SECONDARY SCHOOLS IS CONSTITUTIONAL UNDER THE ESTABLISHMENT CLAUSE OF
THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE VOURTEENTH
AMENDMENT.  MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 108; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303. 

        I 

WITH THE STATED PURPOSE OF ASSURING THAT EVERY SCHOOLCHILD IN THE
COMMONWEALTH WILL EQUITABLY SHARE IN THE BENEFITS OF AUXILIARY
SERVICES, TESTBOOKS, AND INSTRUCTIONAL MATERIAL PROVIDED FREE OF CHARGE
TO CHILDREN ATTENDIGN PUBLIC SCHOOLS, /1/ THE PENNSYLVANIA GENRAL
ASSEMBLY IN 1972 ADDED ACTS 194 AND 195, JULY 12, 1972, PA. STAT. ANN.,
TIT. 247, SEC. 9 - 972, TO THE PENNSYLVANIA PUBLIC SCHOOL CODE OF 1949,
PA. STAT. ANN., TIT, 24, SEC. 1 - 101 TO 27 - 2702. 

ACT 194 AUTHORIZES THE COMMONWEALTH TO PROVIDE "AUSILIARY SERVICES"
TO ALL CHILDREN ENROLLED IN NONPUBLIC ELEMENTARY AND SECONDARY SCHOOLS
MEETING PENNSYLVANIA'S COMPULSORY-ATTENDANCE REQUIREMENTS.  /2/ "
AUXILIARY SERVICES" INCLUDE COUNSELING, TESTING, AND PSYCHOLOGICAL
SERVICES, SPEECH AND HEARING THERAPY, TEACHING AND RELATED SERVICES FOR
EXCEPTIONAL CHILDREN FOR REMEDIAL STUDENTS, AND FOR THE EDUCATIONALLY
DISADVANTAGED, "AND SUCH OTHER SECULAR, NEUTRAL, NON-IDEOLOGICAL
SERVICES AS ARE OF BENEFIT TO NONPUBLIC SCHOOL CHILDREN AND ARE
PRESENTLY OF HEREAFTER PROVIDED FOR PUBLIC SCHOOL CHILDREN OF THE
COMMONWEALTH."  ACT 194 SPECIFIES THAT THE TEACHING AND SERVICES ARE TO
BE PROVIDED IN THE NONPUBLIC SCHOOLS THEMSELVES BY PERSONNEL DRAWN FORM
THE APPROPRIATE "INTERMEDIATE UNIT," PART OF THE PUBLIC SCHOOL SYSTEM
OF THE COMMONWEALTH ESTABLISHED TO PROVIDE SPECIAL SERVICES TO LOCAL
SCHOOL DISTRICTS.  SEE PA. STAT. ANN., TIT. 24, SEC. 9 - 951 TO 9 -
971. 

ACT 195 AUTHORIZES THE STATE SECRETARY OF EDUCATION, EITHER DIRECTLY
OR THROUGH THE INTERMEDIATE UNITS, TO LEND TEXTBOOKS WITHOUT CHARGE TO
CHILDREN ATTENDING NONPUBLIC ELEMENTARY AND SECONDARY SCHOOLS THAT
MEETTHE COMMONWEALTH'S COMPULSORY-ATTENDANCE REQUIREMENTS.  /3/ THE
BOOKS THAT MAY BE LENT ARE LIMITED TO THOSE "WHICH ARE ACCEPTABLE FOR
USE IN ANY PUBLIC, ELEMENTARY, OR SECONDARY SHCOOL OF THE
COMMONWEALTH." 

ACT 195 ALSO AUTHORIZES THE SECRETARY OF EDUCATION, PURSUANT TO
REPQUESTS FROM THE APPROPRIATE NONPUBLIC SHCOOL OFFICIALS, TO LEND
DIRECTLY TO TEH NONPUBLIC SCHOOLS "INSTRUCTIONAL MATERIALS AND
EQUIPMENT, USEFUL TO THE EDUCATION" OF NONPUBLIC SCHOOL CHILDREN.  /4/
" INSTRUCTIONAL MATERIALS" ARE DEFINED TO INCLUDE PERIODICALS,
PHOTOGRAPHS, MAPS, CHARTS, SOUND RECORDINGS, FILMS, "OR ANY OTHER
PRINTED AND PUBLISHED MATERISALS OF A SIMILAR NATURE."  " INSTRUCTIONAL
EQUIPMENT," AS DEFINED BY THE ACT, INCLUDES PROJECTION EQUIPMENT,
RECORDING EQUIPMENT, AND LABORATORY EQUIPMENT. 

ON FEBRUARY 7, 1973, THREE INDIVIDUALS AND FOUR ORGANIZATIONS /5/
FILED A COMPLAINT IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA CHALLENGING THE CONSTITUTIONALITY OF ACTS 194 AND 195, AND
REQUESTING AN INJUNCTION PROHIBITING THE EXPENDITURE OF ANY FINDS UNDER
EITHER STATUTE.  THE COMPLAINT ALLEGED THAT EACH ACT "IS A LAW
RESPECTING AN ESTABLISHMENT OF RELIGION IN VIOLATION OF THE FIRST
AMENDMENT" BECAUSE EACH ACT "AUTHORIZES AND DIRECTS PAYMENTS TO OR USE
OF BOOKS, MATERIALS AND EQUIPMENT IN SCHOOLS WHICH (1) ARE CONTROLLED
BY CHURCHES OR RELIGIOUS ORGANIZATIONS, (2) HAVE AS THEIR PURPOSE TEH
TEACHING, PROPAGATION AND PROMOTION OF A PARTICULAR RELIGIOUS FAITH,
(3) CONDUCT THEIR OPERATIONS, CURRICULUMS AND PROGRAMS TO FULFILL THAT
PURPOSE, (4) IMPOSE RELIGIOUS RESTRICTIONS ON ADMISSIONS, (5) REQUIRE
ATTENDANCE AT INSTRUCTION IN THEOLOGY AND RELIGIOUS DOCTRINE, (6)
REQUIRE ATTENDANCE AT OR PARTICIPATION IN RELIGIOUS WORSHIP, (7) ARE AN
INTEGRAL PART OF THE RELIGIOUS MISSION OF THE SPONSORING CHURCH, (8)
HAVE AS A SUBSTANTIAL OR DOMINANT PURPOSE THE INCULCATION OF RELIGIOUS
VALUES, (9) IMPOSE RELIGIOUS RESTRICTIONS ON FACULTY APPOINTMENTS, AND
(10) IMPOSE RELIGIOUS RESTRICTIONS ON WHAT TEH FACULTY MAY TEACH."  THE
SECRETARY OF EDUCATION AND THE TREASURER OF THE OMMONWEALTH WERE NAMED
AS THE DEFENDANTS.  /6/ 

A THREE-JUDGE COURT WAS CONVENED PURSUANT TO 28 U.S.C. SEC. 2281,
2284.  AFTER AN EVIDENTIARY HEARING, THE COURT ENTERED ITS FINAL
JUDGMENT.  374 F.SUPP.  639.  IN THAT JUDGMENT THE COURT UNANIMOUSLY
UPHLED THE CONSTITUTIONALITY OF THE TEXTBOOK LOAN PROGRAM AUTHORIZED BY
ACT 195.  ID., AT 657 - 658.  BY A DIVIDED VOTE TEH COURT ALSO UPHELD
THE CONSTITUTIONALITY OF ACT 194'S PROVISION OF AUXILIARY SERVICES TO
CHILDREN IN NONPUBLIC ELEMENTARY AND SECONDARY SCHOOLS AND ACT 195'S
AUTHORIZATION OF LOANS OF INSTRUCTIONAL MATERIALS DIRECTLY TO NONPUBLIC
ELEMENTARY AND SECONDARY SCHOOLS.  ID., AT 653 - 659.  THE COURT
UNANIMOUSLY INVALIDATED THAT PORTION OF ACT 195 AUTHORIZING THE
EXPENDITURE OF COMMONWEALTH FUNDS FOR THE PURCHASE OF INSTRUCITONAL
EQUIPMENT FOR LOAN TO NONPUBLIC SCHOOLS, BUT ONLY TO THE EXTENT THAT
THE PROVISION ALLOWED THE LOAN OF EQUIPMENT "WHICH FROM ITS NATURE CAN
BE DIVERTED TO RELIGIOUS PURPOSES."  ID., AT 662.  THE COURT GAVE AS
EXAMPLES PROJECTION AND RECORDING EQUIPMENT.  ID., AT 660 - 661.  BY A
VOTE OF 2 - 1, THE COURT UPHELD THIS PROVISION OF ACT 195 INSOFAR AS IT
AUTHORIZES THE LOAN OF INSTRUCTIONAL EQUIPMENT THAT CANNOT BE READILY
DIVERTED TO RELIGIOUS USES.  IBID. 

EXCEPT WITH RESPECT TO THAT PROVISION OF ACT 195 WHICH PERMITS LOAN
OF INSTRUCTIONAL EQUIPMENT CAPABLE OF DIVERSION, THEREFORE, THE
PLAINTIFFS' REQUEST FOR PRELIMINARY AND FINAL INJUNCTIVE RELIEF WAS
DENIED.  THE PLAINTIFFS (HEREINAFTER THE APPELLANTS) APPEALED DIRECTLY
TO THIS COURT, PURSUANT TO 28 U.S.C. SEC. 1253.  /7/ WE NOTED PROBABLE
JURISDICTION.  419 U.S. 822. 

IN JUDGING THE CONSTITUTIONALITY OF THE VARIOUS FORMS OF ASSISTANCE
AUTHORIZED BY ACTS 194 AND 195, THE DISTRICT COURT APPLIED THE THREE
PART TEST THAT HAS BEEN CLEARLY STATED, IF NOT EASILY APPLIED, BY THIS
COURT IN RECENT ESTABLISHMENT CLAUSE CASES.  SEE E.G., COMMITTEE FOR
PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, 413 U.S. 756, 772 -
773; LEMON V. KURTZMAN, 403 U.S. 602, 612 - 613.  FIRST, THE STATUTE
MUST HAV EA SECULAR LEGISLATIVE PURPOSE.  E.G., PPERSON V. ARIKANSAS,
393 U.S. 97.  SECOND, IT MUST HAVE A "PRIMARY EFFECT" THAT NEITHER
ADVANCES NOR INHIBITS RELIGION.  E.G., SHCOOL DISTRICT OF ABINGTON
TOWNSHIP V. SCHEMPP, 374 U.S. 203.  THIRD, THE STATUTE AND ITS
ADMINISTRATION MUST AVOID EXCESSIVE GOVERNMENT ENTANGLEMENT WITH
RELIGION.  E.G., WALZ V. TAX COMM'N, 397 U.S. 664. 

THESE TESTS CONSTITUTE A CONVENIENT, ACCURATE DISTILLATION OF THIS
COURT'S EFFORTS OVER THE PAST DECADES TO EVALUATE A WID RANGE OF
GOVERNMENTAL ACTION CHALLENGED AS VIOLATIVE OF THE CONSTITUTIONAL
PROHIBITION AGAINST LAWS "RESPECTING AN ESTABLISHMENT OF RELIGION," AND
THUS PROVIDE THE PROPER FRAMEWORK OF ANALYSIS FOR THE ISSUES PRESENTED
IN THE CASE BEFROE US.  IT IS WELL TO EMPHASIZE, HOWEVER, THAT THE
TESTS MUST NOT BE VIEWED AS SETTING THE PRECISE LIMITS TO THE NECESSARY
CONSTITUTIONAL INQUIRY, BUT SERVE ONLY AS GUIDELINES WITH WHICH TO
IDENTIFY INSTANCES IN WHICH THE OBJECTIVES OF THE ESTABLISHMENT CLAUSE
HAVE BEEN IMPAIRED.  SEE TILTON V. RICHARDSON, 403 U.S. 672, 677 - 678
(PLURALITY OPINION OF BURGER, C.J.). 

PRIMARY AMONG THE EVILS AGAINST WHICH THE ESTABLISHMENT CLAUSE
PROTESTS "HAVE BEEN 'SPONSORSHIP, FINANCIAL SUPPORT, AND ACTIVE
INVOLVEMENT OF THE SOVEREIGN IN RELIGIOUS ACTIVITY.'  WALZ V. TAX
COMM'N, SUPRA, AT 668; LEMON V. KURTZMAN, SUPRA, AT 612."  COMMITTEE
FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, SUPRA, AT 772. 
THE COURT HAS BROADLY STATED THAT "(NO TAX IN ANY AMOUNT, LARGE OR
SMALL, CAN BE LEVIED TO SUPPORT ANY RELIGIOUS ACTIVITIES OR
INSTITUTIONS, WHATEVER THEY MAY BE CALLED, OR WHATEVER FROM THEY MAY
ADOPT TO TEACH OR PRACTICE RELIGION."  EVERSON V. BOARD OF EDUCATION,
330 U.S. 1, 16.  BUT IT IS CLEAR THAT NOT ALL LEGISLATIVE PROGRAMS THAT
PROVIDE INDIRECT OR INCIDENTAL BENEFIT TO A RELIGIOUS INSTITUTION ARE
PROHIBITED BY THE CONSTITUTION.  SEE ZORACH V. CLAUSON, 343 U.S. 306,
312; LEMON V. KURTZMAN, SUPRA, AT 614.  " THE PROBLEM, LIKE MANY
PROBLEMS IN CONSTITUTIONAL LAW, IS ONE OF DEGREE."  ZORACH V. CLAUSON,
SUPRA, AT 314. 

      III 

THE DISTRICT COURT HELD THAT THE TEXTBOOK LOAN PROVISIONS OF ACT 195
ARE CONSTITUTIONALLY INDISTINGUISHABLE FROM THE NEW YORK TEXTBOOK LOAN
PROGRAM UPHELD IN BOARD OF EDUCATION V. ALLEN, 392 U.S. 236.  WE
AGREE. 

APPROVAL OF NEW YORK'S TEXTBOOK LOAN PROGRAM IN THE ALLEN CASE WAS
BASED PRIMARILY ON THIS COURT'S EARLIER DECISION IN EVERSON V. BOARD OF
EDUCATION, SUPRA, HOLDING THAT THE CONSTITUTIONAL PROHIBITION AGAINST
LAWS "RESPECTING AN ESTABLISHMENT OF RELIGION" DID NOT PREVENT " NEW
JERSEY FROM SPENDING TAX-RAISED FUNDS TO PAY THE BUS FARES OF PAROCHIAL
SCHOOL PUPILS AS A PART OF A GENERAL PROGRAM UNDER WHICH IT PAYS THE
FARES OF PUPILS ATTENDING PULBIC AND OTHER SCHOOLS."  330 U.S., AT 17. 
SIMILARLY, THE COURT IN ALLEN FOUND THAT THE NEW YORK TEXTBOOK LAW
"MERELY MAKES AVAILABLE TO ALL CHILDREN THE BENEFITS OF A GENERAL
PROGRAM TO LEND SCHOOL BOOKS FREE OF CHARGE.  BOOKS ARE FURNISHED AT
THE REQUEST OF THE PUPIL AND OWNERSHIP REMAINS, AT LEAST TECHNICALLY,
IN THE STATE.  THUS NO FUNDS OR BOOKS ARE FURNISHED TO PAROCHIAL
SCHOOLS, AND THE FINANCIAL BENEFIT IS TO PARENTS AND CHILDREN, NOT TO
SCHOOLS."  382 U.S., AT 243 - 244.  THE COURT CONCEDED THAT PROVISION
OF FREE TEXTBOOKS MIGHT MAKE IT "MORE LIKELY THAT SOME CHILDREN CHOOSE
TO ATTEND A SECTARIAN SCHOOL, BUT THAT WAS TRUE OF THE STATE-PAID BUS
FARES IN EVERSON AND DOES NOT ALONE DEMONSTRATE AN UNCONSTITUTIONAL
DEGREE OF SUPPORT FOR A RELIGIOUS INSTITUTION."  ID., AT 244. 

LIKE THE NEW YORK PROGRAM, THE TEXTBOOK PROVISIONS OF ACT 195 EXTEND
TO ALL SCHOOLCHILDREN THE BENEFITS OF PENNSYLVANIA'S WELL-ESTABLISHED
POLICY OF LENDING TEXTBOOKS FREE OF CHARGE TO ELEMENTARY AND SECONDARY
SCHOOL STUDENTS.  /8/  AS IN ALLEN, ACT 195 PROVIDES THAT THE TEXTBOOKS
ARE TO BE LENT DIRECTLY TO THE STUDENT, NOT TO THE NONPUBLIC SCHOOL
ITSELF, ALTHOUGH, AGAIN AS IN ALLEN, THE ADMINISTRATIVE PRACTICE IS TO
HAVE STUDENT REQUESTS FOR THE BOOKS FILED INITIALLY WITH THE NONPUBLIC
SCHOOL AND TO HAVE THE SCHOOL AUTHORITIES PREPARE COLLECTIVE SUMMARIES
OF THESE REQUESTS WHICH THEY FORWARD TO THE APPROPRIATE PUBLIC
OFFICIALS.  SEE BOARD OF EDUCATION V. ALLEN, 392 U.S., AT 244 N. 6. 
/9/ THUS, THE FINANCIAL BENEFIT OF PENNSYLVANIA'S TEXTBOOK PROGRAM,
LIKE NEW YORK'S, IS TO PARENTS AND CHILDREN, NOT TO THE NONPUBLIC
SCHOOLS.  /10/ 

UNDER NEW YORK LAW THE BOOKS THAT COULD BE LENT WERE LIMITED TO
TEXTBOOKS "WHICH ARE DESIGNATED FOR USE IN ANY PUBLIC, ELEMENTARY OR
SECONDARY SCHOOLS OF THE STATE OR ARE APPROVED BY ANY BOARDS OF
EDUCATION, TRUSTEES OR OTHER SCHOOL AUTHORITIES."  N.Y. EDUC.  LAW SEC.
701 (3).  THE LAW WAS CONSTRUED BY THE NEW YORK COURT OF APPEALS TO
APPLY SOLELY TO SECULAR TEXTBOOKS.  BOARD OF EDUCATION V. ALLEN, 20
N.Y. 2D 109, 117, 228 N.E. 2D 791, 794.  ACT 195 SIMILARLY LIMITS THE
BOOKS THAT MAY BE LENT TO "TEXTBOOKS WHICH ARE ACCEPTABLE FOR USE IN
ANY PUBLIC, ELEMENTARY, OR SECONDARY SCHOOL OF THE COMMONWEALTH."  /11/
MOREOVER, THE RECORD IN THE CASE BEFORE US, LIKE THE RECORD IN ALLEN,
SEE E.G., 392 U.S., AT 244- 245, 248, CONTAINS NO SUGGESTION THAT
RELIGIOUS TEXTBOOKS WILL BE LENT OR THAT THE BOOKS PROVIDED WILL BE
USED FOR ANYTHING OTHER THAN PURELY SECULAR PURPOSES. 

IN SUM, THE TEXTBOOK LOAN PROVISIONS OF ACT 195 ARE IN EVERY
MATERIAL RESPECT IDENTICAL TO THE LOAN PROGRAM APPROVED IN ALLEN. 
PENNSYLVANIA, LIKE NEW YORK, "MERELY MAKES AVAILABLE TO ALL CHILDREN
THE BENEFITS OF A GENERAL PROGRAM TO LEND SCHOOL BOOKS FREE OF
CHARGE."  AS SUCH, THOSE PROVISIONS OF ACT 195 DO NOT OFFEND THE
CONSTITUTIONAL PROHIBITION AGAINST LAWS "RESPECTING AN ESTABLISHMENT OF
RELIGION."  /12/

        IV 

ALTHOUGH TEXTBOOKS ARE LENT ONLY TO STUDENTS, ACT 195 AUTHORIZES THE
LOAN OF INSTRUCITONAL MATERIAL AND EQUIPMENT DIRECTLY TO QUALIFYING
NONPUBLIC ELEMENTARY AND SECONDARY SCHOOLS IN THE COMMONWEALTH.  THE
APPELLANTS ASSERT THAT SUCH DIRECT AID TO PENNSYLVANIA'S NONPUBLIC
SCHOOLS, INCLUDING CHURCH-RELATED INSTITUTIONS, CONSTITUTES AN
IMPERMISSIBLE ESTABLISHMENT OF RELIGION. 

ACT 195 IS ACCOMPANIED BY LEGISLATIVE FINDINGS THAT THE WELFARE OF
THE COMMONWEALTH REQUIRES THAT PRESENT AND FUTURE GENERATIONS OF SCHOOL
CHILDREN BE ASSURED AMPLE OPPORTUNITY TO DEVELOP THEIR INTELLECTUAL
CAPACITIES.  ACT 195 IS INTENDED TO FURTHER THAT OBJECTIVE BY EXTENDING
THE BENEFITS OF FREE EDUCATIONAL AIDS TO EVERY SCHOOLCHILD IN THE
COMMONWEALTH, INCLUDING NONPBLIC SCHOOL STUDENTS WHO CONSTITUTE
APPROXIMATELY ONE QUARTER OF THE SCHOOL CHILDREN IN PENNSYLVANIA.  ACT
195, SEC. 1 (A), PA. STAT. ANN., TIT. 24, SEC. 9 - 972 (A).  WE ACCEPT
THE LEGITMACY OF THIS SECULAR LEGISLATIVE PURPOSE.  CF. LEMON V.
KURTZMAN, 403 U.S., AT 609, 613; SLOAN V. LEMON, 413 U.S. 825, 829 -
830.  BUT WE AGREE WITH THE APPELLANTS THAT THE DIRECT LOAN OF
INSTRUCTIONAL MATERIAL AND EQUIPMENT HAS THE UNCONSTITUTIONAL PRIMARY
EFFECT OF ADVANCING RELIGION BECAUSE OF THE PREDOMINANTLY RELIGIOUS
CHARACTER OF THE SCHOOLS BENEFITING FROM THE ACT.  /13/     THE ONLY
REQUIREMENT IMPOSED ON NONPUBLIC SCHOOLS TO QUALIFY FOR LOANS OF
INSTRUCTIONAL MATERIAL AND EQUIPMENT IS THAT THEY SATISFY THE
COMMONWEALTH'S COMPULSORY-ATTENDANCE LAW BY PROVIDING, IN THE ENGLISH
LANGUAGE, THE SUBJECTS AND ACTIVITIES PRESCRIBED BY THE STANDARDS OF
THE STATE BOARD OF EDUCATION.  PA. STAT. ANN., TIT. 24, SEC. 13 -
1327.  COMMONWEALTH OFFICIALS, AS A MATTER OF STATE POLICY, DO NOT
INQUIRE INTO THE RELIGIOUS CHARACTERISTICS, IF ANY, OF THE NONPUBLIC
SCHOOLS REQUESTING AID PURSUANT TO ACT 195.  THE COORDINATOR OF
NONPUBLIC SCHOOL SERVICES, THE CHIEF ADMINISTRATOR OF ACTS 194 AND 195,
TESTIFIED THAT A SCHOOL WOULD NOT BE BARRED FROM RECEIVING LOANS OF
INSTRUCTIONAL MATERIAL AND EQUIPMENT EVEN THOUGH ITS DOMINANT PURPOSE
WAS THE INCULCATION OF RELIGIOUS VALUES, EVEN IF IT IMPOSED RELIGIOUS
RESTRICTIONS ON ADMISSIONS OR ON FACULTY APPOINTMENTS, AND EVEN IF IT
REQUIRED ATTENDANCE AT CLASSES IN THEOLOGY OR AT RELIGIOUS SERVICES. 
IN FACT, OF THE 1,320 NONPUBLIC SCHOOLS IN PENNSYLVANIA THAT COMPLY
WITH THE REQUIREMENTS OF THE COMPULSORY-ATTENDANCE LAW AND THUS QULAIFY
FOR AID UNDER ACT 195, MORE THAN 75% ARE CHURCH-RELATED OR RELIGIOUSLY
AFFILIATED EDUCATIONAL INSTITUTIONS.  THUS, THE PRIMARY BENEFICIARIES
OF ACT 195'S INSTRUCIONAL MATERIAL AND EQUIPMENT LOAN PROVISIONS, LIKE
THE BENEFICIARIES OF THE "SECULAR EDUCATIONAL SERVICES" REIMBURSEMENT
PROGRAM CONSIDERED IN LEMON V. KURTZMAN, AND THE PARENT TUITION
REIMBURSEMENT PLAN CONSIDERED IN SLOAN V. LEMON, ARE NONPUBLIC SCHOOLS
WITH A PREDOMINANT SECTARIAN CHARACTER /14/ 

IT IS, OF COURSE, TRUE THAT AS PART OF GENERAL LEGISLATION MADE
AVAILABLE TO ALL STUDENTS, A STATE MAY INCLUDE CHURCH-RELATED SCHOOLS
IN PROGRAMS PROVIDING BUS TRANSPORTATION, SCHOOL LUNCHES, AND PUBLIC
HEALTH FACILITIES--, SECULAR AND NONIDEOLOGICAL SERVICES UNRELATED TO
THE PRIMARY, RELIGIOUS-ORIENTED EDUCATIONAL FUNCITION OF THE SECTARIAN
SCHOOL.  THE INDIRECT AND INCIDENTAL BENEFITS TO CHURCH-RELATED SCHOOLS
FROM THOSE PROGRAMS DO NOT OFFEND THE CONSTITUTIONAL PROHIBITION
AGAINST ESTABLISHMENT OF RELIGION.  SEE, E.G., U.S. 1; LEMON V.
KURTZMAN, SURA, AT 616 - 617; COMMITTEE FOR PUBLIC EDUCATION &
RELIGIOUS LIBERTY V. NYQUIST, 413 U.S., AT 775.  BUT THE MASSIVE AID
PROVIDED THE CHURCH-RELATED NONPUBLIC SCHOOLS OF PENNSYLVANIA BY ACT
195 IS NEITHER INDIRECT NOR INCIDENTAL. 

FOR THE 1972 - 1973 SCHOOL YEAR THE COMMONWEALTH AUTHORIZED JUST
UNDER $12 MILLION OF DIRECT AID TO THE PREDOMINANTLY CHURCH-RELATED
NONPUBLIC SCHOOLS OF PENNSYLVANIA THROUGH THE LOAN OF INSTRUCTIONAL
MATERIAL AND EQUIPMENT PURSUANT TO ACT 195.  /15/ TO BE SURE, THE
MATERIAL AND EQUIPMENT THAT ARE THE SUBJECTS OF THE LOAN--, MAPS,
CHARTS, AND LABORATORY EQUIPMENT, FOR EXAMPLE, ARE "SELF-POLICING), IN
THAT STARTING AS SECULAR, NONIDEOLOGICAL AND NEUTRAL, THEY WILL NOT
CHANGE IN USE."  374 F.SUPP.  639, 660.  BUT FACED WITH THE SUBSTANTIAL
AMOUNTS OF DIRECT SUPPORT AUTHORIZED BY ACT 195, IT WOULD SIMPLY IGNORE
REALITY TO ATTEMPT TO SEPARATE SECULAR EDUCATIONAL FUNCTIONS FROM THE
PREDOMINANTLY RELIGIOUS ROLE PERFOMED BY MANY OF PENNSYLVANIA'S CHURCH
RELATED ELEMENTARY AND SECONDARY SCHOOLS AND TO THEN CHARACTERIZE ACT
195 AS CHANNELING AID TO THE SECULAR WITHOUT PROVIDING DIRECT AID TO
THE SECTARIAN.  EVEN THOUGH EARMARKED FOR SECULAR PURPOSES, "WHEN IT
FLOWS TO AN INSTITUTION IN WHICH RELIGION IS SO PERVASIVE THAT A
SUBSTANTIAL PROTION OF ITS FUNCTIONS ARE SUBSUMED IN THE RELIGIOUS
MISSION," STATE AID HAS THE IMPERMISSIBLE PRIMARY EFFECT OF ADVANCING. 
HUNT V. MC NAIR, 413 U.S. 734, 743. 

THE CHURCH-RELATED ELEMENTARY AND SECONDARY SCHOOLS THAT ARE THE
PRIMARY BENEFICIARIES OF ACT 195'S INSTRUCTIONAL MATERIAL AND EQUIPMENT
LONAS TYPIFY SUCH RELIGIONPERVASIVE INSTITUTIONS.  THE VERY PURPOSE OF
MANY OF THOSE SCHOOLS IS TO PROVIDE AN INTEGRATED SECULAR AND RELIGIOUS
EDUCATION; THE TEACHING PROCESS IS, TO A LARGE EXTENT, DEVOTED TO THE
INCULCATION OF RELIGIOUS VALUES AND BELIEF.  SEE LEMON V. KURTZMAN, 403
U.S., AT 616 - 617.  SUBSTANTIAL AID TO THE EDUCATIONAL FUNCTION OF
SUCH SCHOOLS, ACCORDINGLY, NECESSARILY RESULTS IN AID TO THE SECTARIAN
SCHOOL ENTERPRISE AS A WHOLE.  "(THE SECULAR EDUCATION THOSE SCHOOLS
PROVIDE GOES HAND IN HAND WITH THE RELIGIOUS MISSION THAT IS THE ONLY
REASON FOR THE SCHOOLS' EXISTENCE.  WITHIN THE INSTITUTION, THE TWO ARE
INEXTRICABLY INTERTWINED."  ID., AT 657 (OPINION OF BRENNAN, J.).  SEE
GENERALLY FREUND, PUBLIC AID TO PAROCHIAL SCHOOLS, 82 HARV. L. REV.
1680, 1688 - 1689.  FOR THIS REASON, ACT 195'S DILRECT AID TO
PENNSYLVANIA'S PREDOMINANTLY CHURCH-RELATED, NONPUBLIC ELEMENTARY AND
SECONDARY SCHOOLS, EVEN THOUGH OSTENSIBLY LIMITED TO WHOLLY NEUTRAL,
SECULAR INSTRUCTIONAL MATERIAL AND EQUIPMENT, INESCAPABLY RESULTS IN
THE DIRECT AND SUBSTANTIAL ADVANCEMENT OF RELIGIOUS ACTIVITY, CF.
COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, 413
U.S., AT 781 - 783 AND N. 39, AND THUS CONSTITUTES AN IMPERMISSIBLE
ESTABLISHMENT OF RELIGION.  /16/

        V 

UNLIKE ACT 195, WHICH PROVIDES ONLY FOR THE LOAN OF TEACHING
MATERIAL AND EQUIPMENT, ACT 194 AUTHORIZES THE SECRETARY OF EDUCATION,
THROUGH THE INTERMEDIATE UNITS, TO SUPPLY PROFESSIONAL STAFF, AS WELL
AS SUPPORTIVE MATERIALS, EQUIPMENT, AND PERSONNEL, TO THE NONPUBLIC
SCHOOLS OF THE COMMONWEALTH.  THE "AUXILIARY SERVICES" AUTHORIZED BY
ACT 194--REMEDIAL AND ACCELAERATED -NSTRUCTION, GUIDANCE COUNSELING AND
TESTING, SPEECH AND HEARING SERVICES--ARE PROVIDED DIRECTLY OT
NONPUBLIC SCHOOL CHILDREN WITH THE APPROPRIATE SPECIAL NEED.  BUT THE
SERVICES ARE PROVIDED ONLY ON THE NONPUBLIC SCHOOL PREMISES, AND ONLY
WHEN "REQUESTED BY NONPUBLIC SCHOOL REPRESENTATIVES."  DEPARTMENT OF
EDUCATION, COMMONWEALTH OF PENNSYLVANIA, GUIDELINES FOR THE
ADMINISTRATION OF ACTS 194 AND 195, SEC. 1.3. 

THE LEGISLATIVE FINDINGS ACCOMPANYING ACT 194 ARE VIRTUALLY
IDENTICAL TO THOSE IN ACT 195:  ACT 194 IS INTENDED TO ASSURE FULL
DEVELOPMENT OF THE INTELLECTUAL CAPACITIES OF THE CHILDREN OF
PENNSYLVANIA BY EXTENDING THE BENEFITS OF FREE AUXILIARY SERVICES TO
ALL STUDENTS IN THE COMMONWEALTH.  ACT 194, SEC. 1(A), PA. STAT. ANN.,
TIT. 24, SEC. 9 - 972(A).  THE APPELLANTS CONCEDE THE VALIDITY OF THIS
SECULAR LEGISLATIVE PURPOSE.  NONETHELESS, THEY ARGUE THAT ACT 194
CONSTITUTES AN IMPERMISSIBLE ESTABLISHMENT OF RELIGION BECAUSE THE
AUXILIARY SERVICES ARE PROVIDED ON THE PREMISES OF PREDOMINANTLY CHURCH
RELATED SCHOOLS.  /17/ 

IN REJECTING THE APPELLANTS' ARGUMENT, THE DISTRICT COURT EMPHASIZED
THAT "AUXILIARY SERVICES" ARE PROVIDED DIRECTLY TO THE CHILDREN
INVOLVED AND ARE EXPRESSLY LIMITED TO THOSE SERVICES WHICH ARE SECULAR,
NEUTRAL, AND NONIDEOLOGICAL.  THE COURT ALSO NOTED THAT THE INSTRUCTION
AND COUNSELING IN QUESTION SERVED ONLY TO SUPPLEMENT THE BASIC, NORMAL
EDUCATIONAL OFFERINGS OF THE QUALIFYING NONPUBLIC SCHOOLS.  ANY
BENEFITS TO CHURCH-RELATED SCHOOLS THAT MAY RESULT FROM THE PROVISION
OF SUCH SERVICES, THE DISTRICT COURT CONCLUDED, ARE MERELY INCIDENTAL
AND INDIRECT, AND THUS NOT IMPERMISSIBLE.  SEE 374 F.SUPP., AT 656 -
657.  THE COURT ALSO HELD THAT NO CONTINUING SUPERVISION OF THE
PERSONNEL PROVIDING AUXILIARY SERVICES WOULD BE NECESSARY TO ESTABLISH
THAT ACT 194'S SECULAR LIMITATIONS WERE OBSERVED OR TO GUARANTEE THAT A
MEMBER OF THE AUXILIARY SERVICES STAFF HAD NOT "SUCCUMBED) TO

WE NEED NOT DECIDE WHETHER SUBSTANTIAL STATE EXPENDITURES TO ENRIGH
THE CURRICULA OF CHURCH-RELATED ELEMENTARY AND SECONDARY SCHOOLS, /18/
LIKE THE EXPENDITURE OF STATE FUNDS TO SUPPORT THE BASIC EDUCATIONAL
PROGRAM OF THOSE SCHOOLS, NECESSARILY RESULT IN THE DIRECT AND
SUBSTANTIAL ADVANCEMENT OF RELIGIOUS ACTIVITY.  /19/ FOR DECISIONS OF
THIS COURT MAKE CLEAR THAT THE DISTRICT COURT ERRED IN RELYING ENTIRELY
ON THE GOOD FAITH AND PROFESSIONALISM OF THE SECULAR TEACHERS AND
COUNSELORS FUNCTIONING IN CHURCH-RELATED SCHOOLS TO ENSURE THAT A
STRICTLY NONIDEOLOGICAL POSTURE IS MAINTAINED. 

IN EARLEY V. DI CENSO, A COMPANION CASE TO LEMON V. KURTZMAN, SUPRA,
THE COURT INVLIDATED A RHODE ISLAND STATUE AUTHORIZING SALARY
SUPPLEMENTS FOR TEACHERS OF SECULAR SUBJECTS IN NONPUBLIC SCHOOLS.  THE
COURT EXPRESSLY REJECTED THE PROPOSITION, RELIED UPON BY THE DISTRICT
COURT IN THE CASE BEFORE US, THAT IT WAS SUFFICIENT FOR THE STATE TO
ASSUME THAT TEACHERS IN CHURCH-RELATED SCHOOLS WOULD SUCCEED IN
SEGREGATING THEIR RELIGIOUS BELEIFS FROM THEIR SECULAR EDUCATIONAL
DUTIES. 

     " WE NEED NOT AND DO NOT ASSUME THAT TEACHERS IN PAROCHIAL

  SCHOOLS WILL BE GUILTY OF BAD FAITH OR ANY CONSCIOUS DESIGN TO

  EVADE THE LIMITATIONS IMPOSED BY THE STATUTE AND THE FIRST

  AMENDMENT.... 

     "... BUT THE POTENTIAL FOR IMPERMISSIBLE FOSTERING OF RELIGION

  IS PRESENT... THE STATE MUST BE CERTAIN, GIVEN THE RELIGION

  CLAUSES, THAT SUBSIDIZED TEACHERS DO NOT INCULCATE RELIGION....

     " A COMPREHENSIVE, DISCRIMINATING, AND CONTINUING STATE

  SURVEILLANCE WILL INEVITABLY BE REQUIRED TO ENSURE THAT THESE

  RESTRICTIONS ARE OBEYED AND THE FIRST AMENDMENT OTHERWISE

  RESPECTED...."  403 U.S., AT 618 - 619. 

THE PROPHLYACTIC CONTACTS REQIRED TO ENSURE THAT TEACHERS PLAY A
STRICTLY NONIDEOLOGICAL ROLE, THE COURT HELD, NECESSARILY GIVE RISE TO
A CONSTITUTIONALLY INTOLERABLE DEGREE OF ENTANGLEMENT BETWEEN CHURCH
AND STATE.  ID., AT 619.  THE SAME EXCESSIVE ENTANGLEMENT WOULD BE
REQUIRED FOR PENNSYLVANIA TO BE "CERTAIN," AS IT MUST BE, THAT ACT 194
PERSONNEL DO NOT ADVANCE THE RELIGIOUS MISSION OF THE CHURCH-RELATED
SCHOOLS IN WHICH THEY SERVE.  PUBLIC FUNDS FOR PUBLIC SCHOOLS V.
MARGURGER, 358 F.SUPP.  29, 40 - 41, AFF'D, 417 U.S. 961.  /20/ 

THAT ACT 194 AUTHORIZES STATE FUNDING OF TEACHERS ONLY FOR REMEDIAL
AND EXCEPTIONAL STUDENTS, AND NOT FOR NORMAL STUDENTS PARTICIPATING IN
THE CORE CURRICULUM, DOES NOT DISTINGUSIH THIS CASE FROM EARLEY V. DI
CENSO AND LEMON V. KURTZMAN, SUPRA.  WHETHER THE SUBJECT IS "REMEDIAL
READING," "ADVANCED READING," OR SIMPLY "READING," A TEACHER REMAINS A
TEACHER, AND THE DANGER THAT RELIGIOUS DOCTRINE WILL BECOME INTERTWINED
WITH SECULAR INSTRUCTION PERSIST.  THE LIKELIHOOD OF INADVERTENT
FOSTERING OF RELIGION MAY BE LESS IN A REMEDIAL ARITHMETIC CLASS THAN
IN A MEDIEVAL HISTORY SEMINAR, BUT A DIMINISHED PROBABILITY OR
IMPERMISSIBLE CONDUCT IS NOT SUFFICIENT: 

" THE STATE MUST BE CERTAIN, GIVEN THE RELIGION CLAUSES, THAT
SUBSIDIZED TEACHERS DO NOT INCULCATE RELIGION."  403 U.S., AT 619.  AND
A STATE-SUBSIDIZED CHEMISTRY TEACHER TO FAIL ON OCCASION TO SEPARATE
RELIGIOUS INSTRUCTION AND THE ADVANCEMENT OF RELIGIOUS BELIEFS FROM HIS
SECULAR EDUCATIONAL RESPONSIBILITIES.  /21/ 

THE FACT THAT THE TEACHERS AND COUNSELORS PROVIDING AUXILIARY
SERVICES ARE EMPLOYEES OF THE PUBLIC INTERMEDIATE UNIT, RATHER THAN OF
THE CHURCH-RELATED SCHOOLS IN WHICH THEY WORK, DOES NOT SUBSTANTIALLY
ELIMINATE THE NEED FOR CONTINUING SURVEILLANCE.  TO BE SURE, AUXILIARY
SERVICES PERSONNEL, BECAUSE NOT EMPLOYED BY THE NONPUBLIC SCHOOLS, ARE
NOT DIRECTLY SUBJECT TO THE DISCIPLINE OF A RELIGIOUS AUTHORITY.  CF.
LEMON V. KURTZMAN, 403 U.S., AT 618.  BUT THEY ARE PERFORMING IMPORTANT
EDUCATIONAL SERVICES IN SCHOOLS IN WHICH EDUCATION IS AN INTEGRAL PART
OF THE DOMINANT SECTARIAN MISSION AND IN WHICH AN ATMOSPHERE DEDICATED
TO THE ADVANCEMENT OF RELIGIOUS BELIEF IS CONSTANTLY MAINTAINED.  SEE
ID., AT 618 - 619.  THE POTENTIAL FOR IMPERMISSIBLE FOSTERING OF
RELIGION UNDER THESE CIRCUMSTANCES, ALTHOUGH SOMEWHAT REDUCED, IS
NONETHELESS PRESENT.  TO BE CERTAIN THAT AUXILIARY TEACHERS REMAIN
RELIGIOUSLY NEUTRAL, AS THE CONSTITUTION DEMANDS, THE STATE WOULD HAVE
TO IMPOSE LIMITATIONS ON THE ACTIVITIES OF AUXILIARY PERSONNEL AND THEN
ENGAGE IN SOME FORM OF CONTINUING SUREILLANCE TO ENSURE THAT THOSE
RESTRICTIONS WERE BEING FOLLOWED.  /22/ 

IN ADDITION, ACT 194, LIKE THE STATUTES CONSIDERED IN LEMON V.
KURTZMAN, SUPRA, AND COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY
V. NYQUIST, SUPRA, CREATES A SERIOUS POTENTIAL FOR DIVISIVE CONFLICT
OVER THE ISSUE OF AID TO RELIGION--"ENTANGLEMENT IN THE BROADER SENSE
OF CONTINUING POLITICAL STRIFE."  COMMITTEE FOR PUBLIC EDUCATION &
RELIGIOUS LIBERTY V. NYQUIST, 413 U.S., AT 794.  THE RECURRENT NATURE
OF THE APPROPRIATION PROCESS GUARANTEES ANNUAL RECONSIDERATION OF ACT
194 AND THE PROSPECT OF REPEATED CONFRONTATION BETWEEN PROPONENTS AND
OPPONENTS OF THE AUXILIARY-SERVICES PROGRAM.  THE ACT THUS PROVIDES
SUCCESSIVE OPPORTUNITIES FOR POLITICAL FRAGMENTATION AND DIVISION ALONG
RELIGIOUS LINES, ONE OF THE PRINCIPAL EVILS AGAINST WHICH THE
ESTABLISHMENT CLAUSE WAS INTENDED TO PROTECT.  SEE LEMON V. KURTZMAN,
403 U.S., AT 622 - 623.  THIS POTENTIAL FOR POLITICAL ENTANGLEMENT,
TOGETHER WITH THE ADMINISTRATIVE ENTANGLEMENT WHICH WOULD BE NECESSARY
TO ENSURE THAT AUXILIARY-SERVICES PERSONNEL REMAIN STRICTLY NEUTRAL AND
NONIDEOLOGICAL WHEN FUNCTIONING IN CHURCH-RELATED SCHOOLS, COMPELS THE
CONCLUSION THAT ACT 194 VIOLATES THE CONSTITUTIONAL PROHIBITION AGAINST
LAWS "RESPECTING AN ESTABLISHMENT OF RELIGION." 

THE JUDGMENT OF THE DISTRICT COURT AS TO ACT 194 IS REVERSED; ITS
JUDGMENT AS TO THE TEXTBOOK PROVISIONS OF ACT 195 IS AFFIRMED, BUT AS
TO THAT ACT'S OTHER PROVISIONS NOW BEFORE US ITS JUDGMENT IS REVERSED. 

                                 IT IS OS ORDERED. 

/1/ SEE ACT 194, SEC. 1 (A), PA. STAT. ANN., TIT. 24, SEC. 9 -
972(A); ACT 195, SEC. 1 (A), PA. STAT. ANN., TIT. 24, SEC. 9 - 972(A). 

/2/ ACT 194 PROVIDES:     "(A) LEGISLATIVE FINDING; DECLARATION OR
POLICY.  THE WELFARE OF THE COMMONWEALTH REQUIRES THAT THE PRESENT AND
FUTURE GENERATIONS OF SHCOOL AGE CHILDREN BE ASSURED AMPLE OPPORTUNITY
TO DEVELOP TO THE FULLEST THEIR INTELLECTUAL CAPACITIES.  TO FURTHER
THIS OBJECTIVE, THE COMMONWEALTH PROVIDES, THROUGH TAX FUNDS OF THE
CONNONWEALTH, AUXILIARY SERVICES FREE OF CHARGE TO CHILDREN ATTENDING
PUBLIC SCHOOLS WITHIN THE COMMONWEALTH.  APPROXIMATELY ONE QUARTER OF
ALL CHILDREN IN THE COMMONWEALTH, IN COMPLIANCE WITH THE COMPULSORY
ATTENDANCE PROVISIONS OF THIS ACT, ATTEND NONPUBLIC SCHOOLS.  ALTHOUGH
THEIR PARENTS ARE TAXPAYERS OF THE COMMONWEALTH, THESE CHILDREN DO NOT
RECEIVE AUXILIARY SERVICES FROM THE COMMONWEALTH.  IT IS THE INTENT OF
THE GENERAL ASSEMBLY BY THIS ENACTMENT TO ASSURE THE PROVIDING OF SUCH
AUXILIARY SERVICES IN SUCH A MANNER THAT EVERY SCHOOL CHILE IN THE
COMMONWEALTH WILL EQUITABELY SHARE IN THE BENEFITS THEREOF. 

"(B) DEFINITIONS.  THE FOLLOWING TERMS, WHENEVER USED OR REFERRED TO
IN THIS SECTION, SHALL HAVE THE FOLLOWING MENAINGS, EXCEPT IN THOSE
CIRCUMSTANCES WHERE THE CONTEXT CLEARLY INDICATES OTHERWISE:

"' NONPUBLIC SCHOOL' MEANS ANY SCHOOL, OTHER THAN A PUBLIC SCHOOL
WITHIN THE COMMONWEALTH OF PENNSYLVANIA, WHEREIN A RESIDENT OF THE
COMMONWEALTH MAY LEGALLY FULFILL THE COMPULSORY SCHOOL ATTENDANCE
REQUIREMENTS OF THIS ACT AND WHICH MEET THE REQUIREMENTS OF TITLE VI OF
THE CIVIL RIGHTS ACT OF 1964 (PUBLIC LAW 88 - 352). 

"' AUXILIARY SERVICES' MEANS GUIDANCE, COUNSELING AND TESTING
SERVICES; PSYCHOLOGICAL SERVICES; SERVICES FOR EXCEPTIONAL CHILDREN;
REMEDIAL AND THERAPEUTIC SERVICES; SERVICES FOR EXCEPTIONAL CHILDREN;
REMEDIAL AND THERAPEUTIC SERVICES; SPEECH AND HEARING SERVICES;
SERVICES FOR THE IMPROVEMENT OF THE EDUCATIONALLY DISADVANTAGED (SUCH
AS, BUT NOT LIMITED TO, TEACHING ENGLISH AS A SECOND LANGUAGE), AND
SUCH OTHER SECULAR, NEUTRAL, NON-IDEOLOGICAL SERVICES AS ARE OF BENEFIT
TO NONPUBLIC SCHOOL CHILDREN AND ARE PRESENTLY OR HEREAFTER PROVIDED
FOR PUBLIC SCHOOL CHILDREN OF THE COMMONWEALTH. 

"(C) PROVISION OF SERVICES.  PURSUANT TO RULES AND REGULATIONS
AUXILIARY SERVICES TO ALL CHILDREN WHO ARE ENROLLED IN GRADES
KINDERGARTEN THROUGH TWELVE IN NONPUBLIC SCHOOLS WHEREIN THE
REQUIREMENTS OF THE COMPULSORY ATTENDANCE PROVISIONS OF THIS ACT MAY BE
MET AND WHICH ARE LOCATED WITHIN THE AREA SERVED BY THE INTERMEDIATE
UNIT, SUCH AUXILIARY SERVICES TO BE RPOVIDED IN THEIR RESPECTIVE
SCHOOLS.  THE SECRETARY SHALL EACH YEAR APPORTION TO EACH INTERMEDIATE
UNIT AN AMOUNT EQUAL TO THE COST OF PROVIDING SUCH SERVICES BUT IN NO
CASE SHALL THE AMOUNT APPORTIONED BE IN EXCESS OF THIRTY DOLLARS ($30)
PER PUPIL ENROLLED IN NONPUBLIC SCHOOLS WITHIN THE AREA SERVED BY THE
INTERMEDIATE UNIT." 

THE PENNSYLVANIA PUBLIC SCHOOL CODE OF 1949 PROVIDES THAT THE
REQUIREMENTS OF THE COMPULSORY ATTENDANCE LAW MAY BE MET AT A NONPUBLIC
SCHOOL SO LONG AS "THE SUBJECTS AND ACTIVITIES PRESCRIBED BY THE
STANDARDS OF THE STATE BOARD OF EDUCATION ARE TAUGHT IN THE ENGLISH
LANGUAGE."  PA. STAT. ANN., TIT. 24, SEC. 13 - 1327. 

/3/ THE SECTIONS OF ACT 195 RELATING TO THE LOAN OF TEXTBOOKS 

"(B) DEFINITIONS.... ' TEXTBOOKS' MEANS BOOKS, REUSABLE WORKBOOKS,
OR MANUALS, WHETHER BOUND OR IN LOSELEAF FORM, INTENDED FOR USE AS A
PRICIPAL SOURCE OF STUDY MATERIAL FOR A GIVEN CLASS OR GROUP OF
STUDENTS, A COPY OF WHICH IS EXPECTED TO BE AVAILABLE FOR THE
INDIVIDUAL USE OF EACH PUPIL IN SUCH CLASS OR GROUP.  SUCH TEXTBOOKS
SHALL BE TEXTBOOKS WHICH ARE ACCEPTABLE FOR USE IN ANY PUBLIC,
ELEMENTARY, OR SECONDARY SCHOOL OF THE COMMONWEALTH. 

"(C) LOAN OF TEXTBOOKS.  THE SECRETARY OF EDUCATION DIRECTLY, OR
THROUGH THE INTERMEDIATE UNITS, SHALL HAVE THE POWER AND DUTY TO
PURCHASE TEXTBOOKS AND, UPON INDIVIDUAL REQUEST, TO LOAN THEM TO ALL
CHILDREN RESIDING IN THE COMMONWEALTH WHO ARE ENROLLED IN GRADES
KINDERGARTEN THROUGH TWELVE OF A NONPUBLIC SCHOOL WHEREIN THE
REQUIREMENTS OF THE COMPULSORY ATTENDANCE PROVISIONS OF THIS ACT MAY BE
MET.  SUCH TEXTBOOKS SHALL BE LOANED FREE TO SUCH CHILDREN SUBJECT TO
SUCH RULES AND REGULATIONS AS MAY BE RPESCRIBED BY THE SECRETARY OF
EDUCATION. 

"(D) PURCHASE OF BOOKS.  THE SECRETARY SHALL NOT BE REQUIRED TO
PURCHASE OR OTHERWISE ACQUIRE TEXTBOOKS, PURSUANT TO THIS SECTION, THE
TOTAL COST OF WHICH, IN ANY SCHOOL YEAR, SHALL EXCEED AN AMOUNT EQUAL
TO TEN DOLLARS ($10) MULTIPLIED BY THE NUMBER OF CHILDREN RESIDING THE
COMMONWEALTH WHO ON THE FIRST DAY OF OCTOBER OF SUCH SCHOOL YEAR ARE
ENROLLED IN GRADES KINDERGARTEN THROUGH TWELVE OF A NONPUBLIC SCHOOL
WITHIN THE COMMONWEALTH IN WHICH THE REQUIREMENTS OF THE COMPULSORY
ATTENDANCE PROVISIONS OF THIS ACT MAY BE MET." 

/4/ THE SECTIONS OF ACT 195 RELATING TO THE DIRECT LOAN OF
INSTRUCTIONAL MATERIAL AND EQUIPMENT PROVIED: 

"(B) DEFINITIONS.... ' INSTRUCTIONAL EQUIPMENT' MEANS INSTRUCTIONAL
EQUIPMENT, OTHER THAN FIXTURES ANNEXED TO AND FORMING PART OF THE REAL
ESTATE, WHICH IS SUITABLE FOR AND TO BE USED BY CHILDREN AND/OR
TEACHERS.  THE TERM INCLUDES BUT IS NOT LIMITED TO PROJECTION RECORDING
EQUIPMENT, LABORATORY EQUIPMENT, AND ANY OTHER EDUCATIONAL SECUALR,
NEUTRAL, NON-IDEOLOGICAL EQUIMMENT AS MAY BE OF BENEFIT TO THE
INSTRUCTION OF NONPUBLIC SCHOOL CHILDREN AND ARE PRESENTLY OR HEREAFTER
PROVIDED FOR PUBLIC SCHOOL CHILDREN OF THE COMMONWEALTH. 

"' INSTRUCTIONAL MATERIALS' MEANS BOOKS, PERIODICALS, DOCUMENTS,
PAMPHLETS, PHOTOGRAPHS, REPRODUCTIONS, PICTORIAL OR GRAPHIC WORKS,
MUSICAL SCORES, MAPS, CHARTS, GLOBES, SOUND RECORDINGS, INCLUDING BUT
NOT LIMITED TO THOSE ON DISCS AND TAPES, PROCESSED SLIDES,
TRANSPARENCIES, FILMS, FILMSTRIPS, KINESCOPES, AND VIDEO TAPES, OR ANY
OTHER PRINTED AND PUBLISHED MATERIALS OF A SIMILAR NATURE MADE BY ANY
METHOD NOW DEVELOPED OR HEREAFTER TO BE DEVELOPED.  THE TERM INCLUDES
SUCH OTHER SECULAR, NEUTRAL, NON-IDEOLOGICAL MATERIALS AS ARE OF
BENEFIT TO THE INSTRUCTION OF NONPUBLIC SCHOOL CHILDREN AND ARE
PRESENTLY OR HEREAFTER PROVIDED FOR PUBLIC SCHOOL CHILDREN OF THE
COMMONWEALTH. 

* * * * * "(E) PURCHASE OF INSTRUCTIONAL MATERIALS AND EQUIPMENT. 
PURSUANT TO REQUESTS FROM THE APPOROPRIATE NONPUBLIC SCHOOL OFFICIAL ON
BEHALF OF NONPUBLIC SCHOOL PUPILS, THE SECRETARY OF EDUCATION SHALL
HAVE THE POWER AND DUTY TO PURCHASE DIRECTLY, OR THROUGH THE
INTERMEDIATE UNITS, OR OTHERWISE ACQUIRE, AND TO LOAN TO SUCH NONPUBLIC
SCHOOLS, INSTRUCTIONAL MATERIALS AND EQUIPMENT, USEFUL TO THE EDUCATION
OF SUCH CHILDREN, THE TOTAL COST OF WHICH, IN ANY SCHOOL YEAR, SHALL BE
AN AMOUNT EQUAL TO BUT NOT MORE THAN TWENTY-FIVE DOLLARS ($25)
MULTIPLIED BY THE NUMBER OF CHILDREN RESIDING IN THE COMMONWEALTH WHO
ON THE FIRST DAY OF OCTORBER OF SUCH SCHOOL YEAR, ARE ENROLLED IN
GRADES KINDERGARTEN THROUGH TWELVE OF ANY PUBLIC SCHOOL IN WHICH THE
REQUIREMENTS OF THE COMPULSORY ATTENDANCE PROVISIONS OF THIS ACT MAY BE
MET." 

/5/ THE INDIVIDUAL PLAINTIFFS ARE SULVIA MEEK, BERTHA G. MYERS, AND
CHARLES A. WEATHERLEY; ALL ARE RESIDENT TAXPAYERS OF THE COMMONWEALTH
OF PENNSYLVANIA.  THE ORGANIZATIONAL PLAINTIFFS ARE THE AMERICAN CIVIL
LIBERTIES UNION, THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, THE PENNSYLVANIA JEWISH COMMUNITY RELATIONS COUNCIL,
AND AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; EACH GROUP HAS
MEMBERS WHO ARE TAXPAYERS OF PENNSYLVANIA.  374 F.SUPP.  639, 643.  THE
DISTRICT COURT PROPERLY CONCLUDED THAT BOTH THE INDIVIDUAL AND THE THE
ORGANIZATIONAL PLAINTIFFS HAS STANDING TO BRING THIS CHALLENGE TO ACTS
194 AND 195.  ID., AT 647; SEE FLAST V. COHEN, 392 U.S. 83; SIERRA CLUB
V. MORTON, 405 U.S. 727. 

/6/ THE ORIGINAL DEFENDANTS WERE JOHN C. PITTENGER, SECRETARY OF
EDUCATION OF PENNSLVANIA, AND GRACE M. SLOAN, TREASURER OF
PENNSYLVANIA.  A NUMBER OF ADDITIONAL PARTIES WERE PERMITTED BY THE
DISTRICT COURT TO INTERVENE AS DEFENDANTS.  SOME OF THE INDIVIDUAL
INTERVENORS ARE PARENTS OF CHILDREN ATTENDING NONPUBLIC, NONSECTARIAN
SCHOOLS, WHO RECEIVE BENEFITS UNDER THE CHALLENGED ACTS EITHER DIRECTLY
OR THROUGH THEIR SCHOOLS; OTHERS ARE THE PARENTS OF CHILDREN ATTENDING
NONPUBLIC, CHURCH-RELATED SCHOOLS, WHO ARE BENEFITED DIRECTLY OR
INDIRECTLY BY THE ACTS.  ONE ORGANIZATIONAL INTERVENOR IS AN
ASSOCIATION OF NONPUBLIC, NONSECTARIAN SCHOOLS; THE OTHER
ORGANIZATIONAL INTERVENOR IS A NONPUBLIC, NONSECTARIAN SCHOOL.  374
F.SUPP., AT 643. 

/7/ THE APPELLANTS HAD ALLEGED IN THEIR COMPLAINT THAT THE STATUTES
VIOLATE THE FREE EXERCISE CLAUSE, AS WELL AS THE ESTABLISHMENT CLAUSE,
ARGUING THAT COMPULSORY TAXATION FOR THE SUPPORT OF RELIGIOUS SCHOOLS
INTERFERED WITH THE FREE EXERCISE OF RELIGION.  THE DISTRICT COURT HELD
THAT "THE IMPACT OF WHATEVER MINUSCULE BURDEN OF TAXATION WHICH RESULTS
TO (THE APPELLANTS) FROM THE EXPENDITURES IN QUESTION HAS NO EFFECT
UPON THE FREE EXERCISE OF THEIR RELIGION."  374 F.SUPP., AT 662.  JUDGE
HIGGINBOTHAM, WHO CONCURRED IN PART AND DISSENTED IN PART, DID NOT
REACH THE FREE EXERCISE QUESTION.  SEE ID., AT 680.  THE APPELLANTS
HAVE NOT RENEWED THEIR FREE EXERCISE CHALLENGE IN THIS COURT.  NOR HAVE
THE APPELLEES SOUGHT REVIEW OF THAT SEGMENT OF THE DISTRICT COURT ORDER
INVALIDATING SO MUCH OF ACT 195 AS AUTHORIZED LOANS OF INSTRUCTIONAL
EQUIPMENT CAPABLE OF BEING DIVERTED TO RELIGIOUS PURPOSES. 
CONSEQUENTLY, NEITHER OF THOSE ISSUES IS NOW BEFORE US. 

/8/ NEW YORK IN A SINGLE STATUTE AUTHORIZED THE LOAN OF TEXTBOOKS
WITHOUT CHARGE TO STUDENTS ATTENDING BOTH PUBLIC AND NONPUBLIC
SCHOOLS.  N.Y. EDUC.  LAW SEC. 701; SEE BOARD OF EDUCATION V. ALLEN,
392 U.S. 236, 239.  THE PENNSYLVANIA GENERAL ASSEMBLY HAS USED TWO
SEPARATE PROVISIONS OF THE PUBLIC SCHOOL CODE OF 1949 TO ACCOMPLISH THE
SAME RESULT.  PENNSYLVANIA STAT. ANN., TIT. 24, SEC. 8 - 801, REQUIRES
THAT TEXTBOOKS BE PROVIDED FREE OF CHARGE FOR USE IN THE PENNSYLVANIA
PUBLIC SCHOOLS.  ACT 195, PA. STAT. ANN., TIT. 24, SEC. 9 - 972,
PROVIDES THE AUTHORIZATION FOR THE LOAN OF TEXTBOOKS TO NONPUBLIC
ELEMENTARY AND SECONDARY SCHOOL STUDENTS.  SO LONG AS THE TEXTBOOK LOAN
PROGRAM INCLUDES ALL SCHOOL CHILDREN, THOSE IN PUBLIC AS WELL AS THOSE
IN PRIVATE SCHOOLS, IT IS OF NO CONSTITUTIONAL SIGNIFICANCE WHETHER THE
GENERAL PROGRAM IS CODIFIED IN ONE STATUTE OR TWO.  SEE COMMITTEE FOR
PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, 413 782 N. 38. 

/9/ UNDER BOTH THE PENNSYLVANIA AND NEW YORK TEXTBOOK PROGRAMS THE
NONPUBLIC SCHOOLS ARE PERMITTED TO STORE ON THEIR PREMISES THE
TEXTBOOKS BEING LENT TO THE STUDENTS.  COMPARE DEPARTMENT OF EDUCATION,
COMMONWEALTH OF PENNSYLVANIA, GUIDELINES FOR THE ADMINISTRATION OF ACTS
194 AND 195, SEC. 4.6, WITH BOARD OF EDUCATION V. ALLEN, SUPRA, AT 244
N. 6. 

/10/ IN PENNSYLVANIA, AS IN NEW YORK, PRIOR TO COMMENCEMENT OF THE
STATE-SUPPORTED TEXTBOOK LOAN PROGRAM, THE PARENTS OF NONPUBLIC SCHOOL
CHILDREN HAD TO PURCHASE THEIR OWN TEXTBOOKS.  SEE 374 F. SUPP., AT 671
N. 11 (OPINION OF HIGGINBOTHAM, J.). 

/11/ INDEED, UNDER THE STATUTORY SCHEME APPROVED IN ALLEN, THE BOOKS
LENT TO NONPUBLIC SCHOOL STUDENTS MIGHT NEVER IN FACT HAVE BEEN
APPROVED FOR USE IN ANY PUBLIC SCHOOL OF THE STATE.  THE STATUTE
PREMITTED THE LOAN OF BOOKS INITIALLY SELECTED FOR USE BY THE NONPUBLIC
SCHOOLS THEMSELVES, SUBJECT ONLY TO SUBSEQUENT APPROVAL BY "ANY BOARDS
OF EDUCATION."  SEE BOARD OF EDUCATION V. ALLEN, SUPRA, AT 269 - 272
(FORTAS, J., DISSENTING).  IN CONTRAST, ONLY THOSE BOOKS WHICH HAVE THE
ANTECEDENT APPROVAL OF PENNSYLVANIA SCHOOL OFFICIALS QUALIFY FOR LOANS
UNDER ACT 195.  374 F.SUPP., AT 658. 

/12/ THE NEW JERSEY TEXTBOOK PROVISIONS INVLIDATED IN PUBLIC FUNDS
FOR PUBLIC SCHOOLS V. MARBURGER, 358 F.SUPP.29, AFF'D, 417 U.S. 961,
UNLIKE THE NEW YORK TEXTBOOK PROGRAM INOVOLVED IN ALLEN AND THE
PENNSYLVANIA PROGRAM NOW BEFORE US, WERE NOT DESIGNED TO EXTEND TO ALL
SCHOOLCHILDREN OF THE STATE, WHETHER ATTENDING PUBLIC OR NONPUBLIC
SCHOOLS, THE BENEFITS OF STATE-LOANED TEXTBOOKS.  ALTHOUGH NEW JERSEY
PULBIC SCHOOL CHILDREN WERE LENT THEIR TEXTBOOKS, SEC. 5 OF THE
NONPUBLIC ELEMENTARY AND SECONDARY EDUCATION ACT, CHALLENGED IN
MARBURGER, PROVIDED THAT THE STATE COMMISSIONER OF EDUCATION WOULD
REIMBURSE THE PARENTS OF NONPUBLIC SCHOOLCHILDREN FOR MONEY SPENT TO
PURCHASE SECULAR, NONIDEOLOGICAL TEXTBOOKS.  THE DISTRICT COURT BASED
ITS DECISION THAT THE TEXTBOOK PROVISIONS VIOLATED THE CONSTITUTIONAL
PROHIBITION AGAINST LAWS "RESPECTING AN ESTABLISHMENT OF RELIGION" ON
THE FACT THAT THE ASSISTANCE PROVIDED--REIMBURSEMENT FOR PURCHASED
TEXTBOOKS--WAS NOT EXTENDED TO PARENTS OF ALL STUDENTS, BUT RATHER WAS
DIRECTED EXCLUSIVELY TO PARENTS WHOSE CHILDREN WERE ENTOLLED IN
NONPUBLIC, PRIMARY RELIGIOUS SCHOOLS.  385 F. SUPP., AT 36. 

/13/ BECAUSE WE HAVE CONCLUDED THAT THE DIRECT LOAN OF INSTRUCTIONAL
MATERIAL AND EQUIPMENT TO CHURCH-RELATED SCHOOLS HAS THE IMPERMISSIBLE
EFFECT OF ADVANCING RELIGION, THERE IS NO NEED TO CONSIDER WHETHER SUCH
AID WOULD RESULT IN EXCESSIVE ENTANGLEMENT OF THE COMMONWEALTH WITH
RELIGION THROUGH "COMPREHENSIVE, DISCRIMINATING, AND CONTINUING STATE
SURVEILLANCE."  LEMON V. KURTZMAN, 403 U.S. 602, 619.    /14/ IN LEMON
V. KURTZMAN, SUPRA, AT 610, THIS COURT FOUND THAT 96% OF THE NONPUBLIC
ELEMENTARY AND SECONDARY SCHOOL STUDENTS IN PENNSYLVANIA IN 1969
ATTENDED CHURCH-RELATED SCHOOLS.  SEE ALSO SLOAN V. LEMON, 413 U.S 825,
830. 

/15/ AN ADDITIONAL $4,670,000 WAS APPROPRIATED IN THE 1972 - 1973
SCHOOL YEAR FOR THE ACQUISTION OF TEXTBOOKS FOR LOAN TO NONPUBLIC
SCHOOL STUDENTS PURSUANT TO ACT 195.  THE TOTAL 1972 - 1973
APPROPRIATION UNDER ACT 195 WAS $16,660,000.  THE APPROPRIATION WAS
INCREASED BY $900,000 TO $17,560,000 FOR THE 1973 - 1974 SCHOOL YEAR. 

THE POTENTIALLY DIVISIVE POLITICAL EFFECT OF AID PROGRAMS LIKE ACT
195, WHICH ARE DEPENDENT ON CONTINUING ANNUAL APPROPRIATIONS AND WHICH
GENERATE INCREASING DEMANDS AS COSTS AND POPULATION GROW, WAS
EMPHASIZED BY THIS COURT IN LEMON V. KURTZMAN, SUPRA, SUPRA, AT 622 -
624, AND COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST,
413 U.S., AT 794 - 798.  "(WHILE THE PROSPECT OF SUCH DIVISIVENESS MAY
NOT ALONE WARRANT THE INVALIDATION OF STATE LAWS THAT OTHERWISE SURVIVE
THE CAREFUL SCRUTINY REGUIRED BY THE DECISIONS OF THIS COURT, IT IS
CERTAINLY A 'WARNING SIGNAL' NOT TO BE IGNORED."  ID., AT 797 - 798. 

/16/ OUR CONCLUSION THAT ACT 195'S INSTRUCTIONAL-MATERIAL AND
EQUIPMENT-LOAN PROVISIONS ARE UNCONSTITUTIONAL IS DIRECTLY SUPPORTED,
IF NOT COMPELLED, BY THIS COURT'S AFFIRMANCE LAST TERM OF PUBLIC FUNDS
FOR PUBLIC SCHOOLS V. MARBURGER, 358 F.SUPP.  29, AFF'D, 417 U.S. 961. 
THE MARBURGER DISTRICT COURT INVALIDATED AS VIOLATING THE
CONSTITUTIONAL PROHIBITION AGAINST ESTABLISHMENT OF RELIGION NEW
JERSEY'S PROVISION OF INSTRUCTIONAL MATERIAL AND EQUIPMENT TO NONPUBLIC
ELEMENTARY AND SECONDARY SCHOOLS.  NEW JERSEY'S PROGRAM DID NOT DIFFER
IN ANY MATERIAL RESPECT FROM THE LOAN PROVISIONS OF ACT 195.  SEE 385
F.SUPP., AT 36 - 37.  AFTER FINDING THAT THE NONPUBLIC SCHOOLS AIDED,
FOR THE MOST PART, WERE CHURCH-RELATED OR RELIGIOUSLY AFFILIATED
EDUCATIONAL INSTITUTIONS, ID., AT 34, THE COURT HELD THAT THE PROGRAM
HAD A PRIMARY EFFECT OF ADVANCING RELIGION.  ID., AT 37.  THE COURT
ALSO HELD, AS DID THE DISTRICT COURT IN THE CASE BEFORE US, THAT
EXCESSIVE ENTANGLEMENT OF CHURCH AND STATE WOULD RESULT FROM ATTEMPTS
TO POLICE USE OF MATERIAL AND EQUIPMENT THAT WERE READILY DIVERTIBLE TO
RELIGIOUS USES.  ID., AT 38 - 39.  THIS COURT'S AFFIRMANCE OF THE
RESULT IN MARBURGER WAS A DECISION ON THE MERITS, ENTITLED TO
PREDEDENTIAL WEIGHT.  SEE EDELMAN V. JORDAN, 415 U.S. 651, 670 - 671;
CF. CINCINNATI, N.O. & T.P.R.CO. V. UNITED STATES, 400 U.S. 932, 935
(WHITE, J., DISSENTING FROM SUMMARY AFFIRMANCE). 

/17/ THE APPELLANTS DO NOT CHALLENGE, AND WE DO NOT QUESTION, THE
AUTHORITY OF THE PENNSYLVANIA GENERAL ASSEMBLY TO MAKE FREE AUXILIARY
SERVICES AVAILABLE TO ALL STUDENTS IN THE COMMONWEALTH, INCLUDING THOSE
WHO ATTEND CHURCH-RELATED SCHOOLS.  CONTRARY TO THE ARGUMENT ADVANCED
IN A SEPARATE OPINION FILED TODAY, THEREFORE, THIS CASE PRESENTS NO
QUESTION WHETHER "THE CONSTITUTION PERMITS THE STATES TO GIVE SPECIAL
ASSISTANCE TO SOME OF ITS CHILDREN WHOSE HANDICAPS PREVENT THEIR
DERIVING THE BENEFIT NORMALLY ANTICIPATED FROM THE EDUCATION REQUIRED
TO BECOME A PRODUCTIVE MEMBER OF SOCIETY AND, AT THE SAME TIME, TO DENY
THOSE BENEFITS TO OTHER CHILDREN ONLY BECAUSE* THEY ATTEND A LUTHERAN,
CATHOLIC, OR OTHER CHURCH-SPONSORED SCHOOL...."  POST, AT 386 - 387. 

/18/ BECAUSE ACTS 194 AND 195 IMPOSE IDENTICAL QUALIFICATION
REQUIREMENTS, COMPARE ACT 194, SEC. 1 (C), PA. STAT. ANN., TIT. 24,
SEC. 9 - 972 (C), WITH ACT 195, SEC. 1 (C), (E), PA. STAT. ANN., TIT.
24, SEC. 9 - 972 (C), (E), THE SAME SCHOOLS ARE ELIGIBLE FOR AID UNDER
EACH ACT. 

/19/ MORE THAN $14 MILLION WAS APPROPRIATED IN THE 1972 - 1973
SCHOOL YEAR TO PROVIDE AUXILIARY SERVICES FOR NONPUBLIC SCHOOL STUDENTS
PURSUANT TO ACT 194.  THE AMOUNT WAS INCREASED TO $17,880,000 FOR THE
1973 - 1974 SCHOOL YEAR. 

/20/ IN ADDITION TO INVLIDATING NEW JERSEY'S PROVISION OF
INSTURCTIONAL MATERIAL AND EQUIPMENT TO NONPUBLIC SCHOOLS, SEE N. 16,
SUPRA, THE DISTRICT COURT IN MARBURGER STRUCK DOWN THE STATE'S PROGRAM
TO SUPPLY NONPUBLIC SCHOOLS WITH "AUXILIARY SERVICES."  NEW JERSEY
DEFINED "AUXILARY SERVICES" IN SUBSTANTIALLY THE SAME MANNER AS
PENNSYLVANIA, AND THE ADMINISTRATION OF THE NEW JERSEY PROGRAM DID NOT
DIFFER SIGNIFICANTLY FROM THE ADMINISTRATION OF ACT 194.  SEE 358 F.
SUPP., AT 39.  THE DISTRICT COURT HELD THAT THE AUXILIARY SERVICES
PROGRAM "IS UNCONSTITUTIONAL BY REASON OF THE CHURCH-STATE
ADMINISTRATIVE ENTANGLEMENT IT WOULD PRODUCE."  ID., AT 40.  THIS
COURT'S AFFIRMANCE OF MARBURGER IS A DECISION ON THE MERITS AS TO THE
CONSTITUTIONALITY OF NEW JERSEY'S AUXILIARY-SERVICES PROGRAM, AND IS
ENTITLED TO PRECEDENTIAL WEIGHT. 

/21/ ACT 194'S AUTHORIZATION OF "SPEECH AND HEARING SERVICES," AT
LEAST TO THE EXTENT SUCH SERVICES ARE DAIGNOSTIC, SEEMS TO FALL WITHIN
THAT CLASS OF GENERAL WELFARE SERVICES FOR CHILDREN THAT MAY BE
PROVIDED BY THE STATE REGARDLESS OF THE INCIDENTAL BENEFIT THAT ACCRUES
TO CHURCH-RELATED SCHOOLS.  SEE, E.G., EVERSON V. BOARD OF EDUCATION,
330 U.S. 1.  ALTHOUGH THE ACT CONTAINS A SEVERABILITY CLAUSE, ACT 194,
WE CANNOT ASSUME THAT THE PENNSYLVANIA GENERAL ASSEMBLY WOULD HAVE
PASSED THE LAW SOLELY TO PROVIDE SUCH AID.  SEE SLOAN V. LEMON, 413
U.S., AT 833 - 834.  INDEED, NONE OF THE APPELLEES HAS SUGGESTED THAT
THE SEVERABILITY CLAUSE BE UTILIZED TO SAVE ANY PROTION OF ACT 194 IN
THE EVENT THIS COURT FINDS THE MAJOR SUBSTANCE OF THE ACT
CONSTITUTIONALLY INVALID. 

/22/ THE PRESENCE OF AUXILIARY TEACHERS IN CHURCH-RELATED SCHOOLS,
MOREOVER, HAS THE POTENTIAL FOR PROVOKING CONTROVERSY BETWEEN THE
COMMONWEALTH AND RELIGIOUS AUTHORITIES OVER THE EXTENT OF THE TEACHERS'
RESPONSIBILITIES AND THE MEANING OF THE LEGISLATIVE AND ADMINISTRATIVE
RESTRICTIONS ON THE CONTENT OF THEIR INSTRUCTION.  SEE LEMON V.
KURTZMAN, 403 U.S., AT 619. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I JOIN IN THE REVERSAL OF THE DISTRICT CURTS' JUDGMENT INSOFAR AS
THAT JUDGMENT UPHELD THE CONSTITUTIONALITY OF ACT 194 AND THE
PROVISIONS OF ACT 195 RESPECTING INSTRUCTIONAL MATERIALS AND EQUIPMENT,
BUT DISSENT FROM PART III AND THE AFFIRMANCE OF THE JUDGMENT UPHOLDING
THE CONSTITUTIONALITY OF THE TEXTBOOK PROVISIONS OF ACT 195. 

A THREE-FACTOR TEST BY WHICH TO DETERMINE THE COMPATIBILITY WITH THE
ESTABLISHMENT CLAUSE OF STATE SUBSIDIES OF SECTARIAN EDUCATIONAL
INSTITUTIONS HAS EVOLVED OVER 50 YEARS OF THE COURT'S STEWARDSHIP IN
THE FIELD.  THE LAW IN QUESTION MUST, FIRST, REFLECT A CLEARLY SECULAR
LEGISLATIVE PURPOSE; SECOND, HAVE A PRIMARY EFFECT /1/ THAT NEITHER
ADVANCES NOR INHIBITS RELIGION; AND, THIRD, AVOID EXCESSIVE GOVERNMENT
ENTANGLEMENT WITH RELIGION.  BUT FOUR YEARS AGO, THE COURT, ALBEIT
WITHOUT EXPRESS RECOGNITION OF THE FACT, ADDED A SIGNIFICANT FOURTH
FACTOR TO THE TEST:  " A BROADER BASE OF ENTANGLEMENT OF YET A
DIFFERENT CHARACTER IS PRESENTED BY THE DIVISIVE POLITICAL POTENTIAL OF
THESE STATE PROGRAMS."  LEMON V. KURTZMAN, 403 U.S. 602, 622 (1971). 
THE EVALUATION OF THIS FACTOR IN DETERMINING COMPATIBILITY OF A STATE
SUBSIDY LAW WITH THE ESTABLISHMENT CLAUSE IS ESSENTIAL, SAID THE COURT,
BECAUSE: 

     " IN A COMMUNITY WHERE . . . A LARGE NUMBER OF PUPILS ARE

  SERVED BY CHURCH-RELATED SCHOOLS, IT CAN BE ASSUMED THAT STATE

  ASSISTANCE WILL ENTAIL CONSIDERABLE POLITICAL ACTIVITY. 

  PARTISANS OF PAROCHIAL SCHOOLS, UNDERSTANDABLY CONCERNED WITH

  RISING COSTS AND SINCERELY DEDICATED TO BOTH THE RELIGIOUS AND

  SECULAR EDUCATIONAL MISSIONS OF THEIR SCHOOLS, WILL INEVITABLY

  CHAMPION THIS CAUSE AND PROMOTE POLITICAL ACTION TO ACHIEVE THEIR

GOALS.  THOSE WHO OPPOSE STATE AID, WHETHER FOR CONSTITUTIONAL,

  RELIGIOUS, OR FISCAL REASONS, WILL INEVITABLY RESPOND AND EMPLOY

  ALL OF THE USUAL POLITICAL CAMPAIGN TECHNIQUES TO RPEVAIL. 

  CANDIDATES WILL BE FORCED TO DECLARE AND VOTERS TO CHOOSE.  IT

  WOULD BE UNREALISTIC TO IGNORE THE FACT THAT MANY PEOPLE

  CONFRONTED WITH ISSUES OF THIS KIND WILL FIND THEIR VOTES ALIGNED

  WITH THEIR FAITH. 

    " ORDINARILY POLITICAL DEBATE AND DIVISION, HOWEVER VIGOROUS OR

  EVEN PARTISAN, ARE NORMAL AND HEALTHY MANIFESTATIONS OF OUR

  DEMOCRATIC SYSTEM OF GOVERNMENT, BUT POLITICAL DIVISION ALONG

  RELIGIOUS LINES WAS ONE OF THE PRINCIPAL EVILS AGAINST WHICH THE

  FIRST AMENDMENT WAS INTENDED TO PROTECT.... THE POTENTIAL

  DIVISIVENESS OF SUCH CONFLICT IS A THREAT TO THE NORMAL POLITICAL

  PROCESS.... IT CONFLICTS WITH OUR WHOLE HISTROY AND TRADITION TO

  PERMIT QUESTIONS OF THE RELIGION CLAUSES TO ASSUME SUCH

  IMPORTANCE IN OUR LEGISLATURES AND IN OUR ELECTIONS THAT THEY

  COULD DIVERT ATTENTION FROM THE MYRIAD ISSUES AND PROBLEMS THAT

  CONFRONT EVERY LEVEL OF GOVERNMENT.... 

     "... HERE WE ARE CONFRONTED WITH SUCCESSIVE AND VERY LIKELY

  PERMANENT ANNUAL APPROPRIATIONS THAT BENEFIT RELATIVELY FEW

RELIGIOUS GROUPS.  POLITICAL FRAGMENTATION AND DIVISIVENESS ON

  RELIGIOUS LINES ARE THUS LIKELY TO BE INTENSIFIED. 

    " THE POTENTIAL FOR POLITICAL DIVISIVENESS RELATED TO RELIGIOUS

  BELIEF AND PRACTICE IS AGGRIVATED . . . BY THE NEED FOR

  CONTINUING ANNUAL APPROPRIATIONS AND THE LIKELIHOOD OF LARGER AND

  LARGER DEMANDS AS COSTS AN POPULATIONS GROW...."  ID., AT 622 -

  623.  (EMPHASIS ADDED.) 

THIS FACTOR WAS KEY IN KURTZMAN'S DETERMINATION THAT PENNSYLVANIA
AND RHODE ISLAND STATUTES PROVIDING STATE AID TO CHURCH-RELATED
ELEMENTARY AND SECONDARY SCHOOLS VIOLATED THE ESTABLISHMENT CLAUSE. 
THE PENNSYLVANIA STATUE PROVIDED FINANCIAL SUPPORT BY THE WAY OF
REIMBURSEMENT FOR THE COST OF TEACHERS' SALARIES, TEXTBOOKS, AND
INSTRUCTIONAL MATERIALS IN SPECIFIED SECULAR SUBJECTS.  THE RHODE
ISLAND STATUTE PROVIDED A PROGRAM UNDER WHICH THE STATE PAID DIRECTLY
TO TEACHERS IN NONPUBLIC SCHOOLS A SUPPLEMENT OF 15% OF THEIR ANNUAL
SALARY. 

COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, 413
U.S. 756 (1973), DECIDED TWO YEARS LATER, EMPHASIZED THE IMPORTANCE TO
BE ATTACHED BY JDUGES TO THIS FOURTH FACTOR:  " ONE FACTOR OF RECURRING
SIGNIFICANCE IN THIS WEIGHING PROCESS IS THE POTENIALLY DIVISIVE
POLITICAL EFFECT OF AN AID PROGRAM."  ID., AT 795.  THE COURT HELD THAT
THE FACTOR APPLIED "WITH PECULIAR FORCE TO THE NEW YORK STATUTE NOW
BEFORE US."  ID., AT 796.  THAT STATUE CREATED THREE AID PROGRAMS.  THE
FIRST PROVIDED FOR DIRECT MONEY GRANTS TO BE USED FOR MAINTENANCE AND
REPAIR OF FACILITIES TO ENSURE THE STUDENTS' WELFARE, HEALTH, AND
SAFETY.  THE SECOND ESTABLISHED A TUITION-REIMBURSEMENT PLAN FOR
PARENTS OF CHILDREN ATTENDING NONPUBLIC ELEMENTARY SCHOOLS.  THE THIRD
PROVIDED TAX RELIEF FOR PARENTS NOT QUALIFYING FOR TUITION
REIMBURSEMENTS.  STATING THAT "WHILE THE PROSPECT OF (POLITICAL)
DIVISIVENESS MAY NOT ALONE WARRANT THE INVALIDATION OF STATE LAWS THAT
OTHERWISE SURVIVE THE CAREFUL SCRUTINY REQUIRED BY THE DECISIONS OF
THIS COURT, IT IS CERTAINLY A 'WARINIG SIGNAL' NOT TO BE IGNORED," ID.,
AT 797 - 798, THE COURT HELD THAT "IN LIGHT OF ALL RELEVANT
CONSIDERATIONS," EACH OF THE NEW YORK PROGRAMS HAD A "'PRIMARY EFFECT
THAT ADVANCES RELIGION' AND OFFENDS THE CONSTITUTIONAL PROHIBITON
AGAINST LAWS 'RESPECTING AN EXTABLISHMENT OF RELIGION.'"  ID., AT 798. 

THE COURT TODAY ALSO RELIES ON THE FATOR OF DIVISIVE POLITICAL
POTENTIAL BUT ONLY AS SUPPORT FOR ITS HOLDING THAT ACT 194 IS AN
UNCONSTITUTIONAL LAW "RESPECTING AN ESTABLISHMENT OF RELIGION,"
STATING: 

     " IN ADDITION, ACT 194, LIKE THE STATUTES CONSIDERED IN

  (KURTZMAN AND NYQUIST) CREATES A SERIOUS POTENTIAL FOR DIVISIVE

  CONFLICT OVER THE ISSUE OF AID TO RELIGION--, 'ENTANGLEMENT IN

  THE BROADER SENSE OF CONTINUING POLITICAL STRIFE.'... THE

RECURRENT NATURE OF THE APPROPRIATION PROCESS GUARANTEES ANNUAL

  RECONSIDERATION OF ACT 194 AND THE PROSPECT OF REPEATED

  CONFRONTATION BETWEEN PROPONENTS AND OPPONENTS OF THE

  AUXILIARY-SERVICES PROGRAM.  THE ACT THUS PROVIDES SUCCESSIVE

  OPPORTUNITIES FOR POLITICAL FRAGMENTATION AND DIVISION ALONG

  RELIGIOUS LINES, ONE OF THE PRINCIPAL EVILS AGAISNT WHICH THE

  ESTABLISHMENT CLAUSE WAS INTENDED TO PROTECT."  ANTE, AT 372. 

CONTRARY TO THE PLAIN AND EXPLICIT TEACHING OF KURTZMAN AND NYQUIST,
HOWEVER, AND INCONSISTENTLY WITH ITS OWN TREATMENT OF ACT 194, THE
PLURALITY, IN CONSIDERING THE CONSTITUTIONALITY OF ACT 195 SAYS NOT A
SINGLE WORD ABOUT THE POLITICAL-DIVISIVENESS FACTOR IN PART III OF THE
OPINION UPHOLDING THE TEXTBOOK LOAN PROGRAM CREATED BY THAT ACT, AND
MAKES ONLY A PASSING FOOTNOTE REFERENCE TO THE FACTOR, WITHOUT
EVALUATION OF ITS BEARING ON THE RESULT, IN HOLDING THAT ACT 195'S
PROGRAM FOR LOANS OF INSTRUCTIONAL MATERIALS AND EQUIPMENT CONSTITUTES
ACT 19K IN THAT RESPECT "DIRECT AID TO PENNSYLVANIA'S PREDOMINANTLY
CHURCH-RELATED, NONPUBLIC ELEMENTARY AND SECONDARY SCHOOLS, EVEN THOUGH
OSTENSIBLY LIMITED TO WHOLLY NEUTRAL, SECUALR INSTRUCTIONAL MATERIAL
AND EQUIPMENT, (THAT) INESCAPABLY RESULTS IN THE DIRECT AND SUBSTANTIAL
ADVANCEMENT OF RELIGIOUS ACTIVITY...AND THUS CONSTITUTES AN
IMPERMISSIBLE ESTABLISHMENT OF RELIGION."  ANTE, AT 366. 

I RECOGNIZE THAT THE PLURALITY WAS ON THE HORNS OF A DILEMMA.  THE
PLURALITY NOTES THAT THE TOTAL 1972 - 1973 APPROPRIATION UNDER ACT 195
WAS $16,660,000, OF WHICH $4,.670,000 WAS APPROPRIATED TO FINANCE THE
TEXTBOOK PROGRAM.  ANTE, AT 365 N. 15.  THE PLURALITY NOTES FURTHER
THAT "AID PROGRAMS LIKE ACT 195...ARE DEPENDENT ON CONTINUING ANNUAL
APPROPRIATIONS...WHICH GENERATE INCREASING DEMANDS AS COSTS AND
POPULATION GROW ...," IBID., AND, INDEED, THAT THE TOTAL ACT 195
APPROPRIATION WAS INCREASED $900,000 TO $17,560,000 FOR THE 1973 - 1974
SCHOOL YEAR.  PLAINLY THEN, AS IN NYQUIST, THE POLITICAL-DIVISIVENESS
FACTOR APPLIES "WITH PECULIAR FORCE TO THE ... STATUTE NOW BEFORE US." 
BUT TO COMPLY WITH NYQUIST, AS IS REQUIRED, THE PLURALITY OBVIOUSLY
MUST ATTACH DETERMINATIVE WEIGHT TO THE FACTOR AS RESPECTS BOTH THE
TEXTBOOK LOAN AND INSTRUCTIONAL MATERIALS AND EQUIPMENT LOAN
PROVISIONS, SINCE BOTH ARE INEXTRICABLY INTERTWINED IN ACT 195.  /2/
FOR IN LIGHT OF THE MASSIVE APPROPRIATIONS INVOLVED, THE PLURALITY
WOULD BE HARD PUT TO EXPLAIN HOW THE FACTOR WEIGHS DETERMINATIVELY
AGAINST THE VALIDITY OF THE INSTRUCTIONAL MATERIALS LOAN PROVISIONS,
AND NOT ALSO AGAINST THE VALIDITY OF THE TEXTBOOK LOAN PROVISIONS.  THE
PLURALITY THEREFORE WOULD EXTRICATE ITSELF FROM THE HORNS OF THE
DILEMMA BY SIMPLY IGNORING THE FACTOR IN THE WEIGHING PROCESS.     BUT
HOWEVER MUSCH THIS EVASION MAY BE TOLERABLE IN THE CASE OF THE
INSTRUCTIONAL MATERIALS LOAN PROVISIONS, SINCE THESE ARE INVALIDATED ON
OTHER GROUNDS, RESPONSIBILITY FOR EVALUATING THE WEIGHT TO BE ACCORDED
THE FACTOR CANNOT BE EVADED, IN THE CASE OF THE TEXTBOOK LOAN
PROVISIONS, BY RELYING, AS THE PLURALITY DOES, UPON ITS AGREEMENT WITH
THE DISTRICT COURT THAT THE TEXTBOOK LOAN PROGRAM IS INDISTINGUISHABLE
FROM THE NEW YORK TEXTBOOK BOOK LOAN PROGRAM UPHELD IN BOARD OF
EDUCATION V. ALLEN, 392 U.S. 236 (1968).  FOR ALLEN, WHICH I JOINED,
WAS DECIDED BEFORE KURTZMAN ORDAINED THAT THE POLITICAL DIVISVENESS
FACTOR MUST BE INVOLVED IN THE WEIGHING PROCESS, AND UNDERSTANDABLY
NEITHER THE PARTIES TO ALLEN NOR THE COURT ADDRESSED THAT FACTOR IN
THAT CASE.  BUT WHETHER OR NOT ALLEN CAN WITHSTAND OVERRULING IN LIGHT
OF KURTZMAN AND NYQUIST, WHICH I QUESTION, IT IS CLEAR THAT KURTZMAN--,
WHICH, I REPEAT, APPLIED THE FACTOR TO A PENNSYLVANIA PROGRAM THAT
INCLUDED REIMBURSEMENT FOR THE COST OF TEXTBOOKS--REQUIRES THAT THE
PLURALITY WEIGH THE FACTOR IN THE INSTANT CASE.  FURTHER, GIVING THE
FACTOR THE WEIGHT THAT KURTZMAN AND NYQUIST REQUIRE, COMPELS, IN MY
VIEW THE CONCLUSION THAT THE TEXTBOOK LOAN PROGRAM OF ACT 195, EQUALLY
WITH THE PROGRAM FOR LOAN OF INSTRUCITONAL MATERIALS AND EQUIPMENT,
VIOLATES THE ESTABLISHMENT CLAUSE.  THE PLURALITY'S ANSWER IS THAT A
DIFFERENCE IN RESULT IS JUSTIFIED BECAUSE ACT 195 DISTINGUISHES BETWEEN
RECIPIENTS OF THE LOANS:  TEXTBOOKS ARE LENT TO STUDENTS, WHILE
INSTRUCTIONAL MATERIAL AND EQUIPMENT ARE LENT DIRECTLY TO THE SCHOOLS. 
THAT ANSWER WILL NOT WITHSTAND ANALYSIS. 

FIRST, IT IS PURE FANTASY TO TREAT THE TEXTBOOK PROGRAM AS A LOAN TO
STUDENTS.  IT IS TRUE THAT LIKE THE NEW YORK STATUTE IN ALLEN, ACT 195
IN TERMS TALKS OF LOANS BY THE STATE OF ACCEPTABLE SECULAR TEXTBOOKS
DIRECTLY TO STUDENTS ATTENDING NONPUBLIC SCHOOLS.  BUT EVEN THE
PLURALITY ACKNOWLEDGES THAT "THE ADMINISTRATIVE PRACTICE IS TO HAVE
STUDENT REQUESTS FOR THE BOOKS FILED INITIALLY WITH THE NONPUBLIC
SCHOOL AND TO HAVE THE SCHOOL AUTHORITIES PREPARE COLLECTIVE SUMMARIES
OF THESE REQUESTS WHICH THEY FORWARD TO THE APPROPRIATE PUBLIC
OFFICIALS...."  ANTE, AT 361.  FURTHER, "THE NONPUBLIC SCHOOLS ARE
PERMITTED TO STORE ON THEIR PREMISES THE TEXTBOOKS BEING LENT TO THE
STUDENTS."  ANTE, AT 361 N. 9.  EVEN IF THESE PRACITCES WERE ALSO
FOLLOWED UNDER THE NEW YORK STATUTE, THE REGULATIONS IMPLEMENTING ACT
195 MAKE CLEAR, AS THE RECORD IN ALLEN DID NOT, THAT THE NONPUBLIC
SCHOOL IN PENNSYLVANIA IS SOMETHING MORE THAN A CONDUIT BETWEEN THE
STATE AND PUPIL.  THE COMMONWEALTH HAS PROMULGATED " GUIDELINES FOR THE
ADMINISTRATION OF ACTS 194 AND 195" TO IMPLEMENT THE STATUES.  THESE
REGULATIONS, UNLIKE THOSE UPHELD IN ALLEN, CONSTITUTE A MUCH MORE
INTRUSIVE AND DETAILED INVOLVEMENT OF THE STATE AND ITS PROCESSES INTO
THE ADMINISTRATION OF NONPUBLIC SCHOOLS.  THE WHOLE BUSINESS IS HANDLED
BY THE SCHOOLS AND PUBLIC AUTHORITIES, AND NEITHER PARENTS NOR STUDENTS
HAVE A SAY.  THE GUIDELINES MAKE CRYSTAL CLEAR THAT THE NONPUBLIC
SCHOOL, NOT ITS PUPILS, IS THE MOTIVATING FORCE BEHIND THE TEXTBOOK
LOAN, AND THAT VIRTUALLY THE ENTIRE LOAN TRANSACTION IS TO BE, AND IS
IN FACT, CONDUCTED BETWEEN OFFICIALS OF THE NONPUBLIC SCHOOL, ON THE
ONE HAND, AND OFFICERS OF THE STATE, ON THE OTHER. 

FOR EXAMPLE, SEC. 4.3 OF THE GUIDELINES REQUIRES THAT ON OR BEFORE
MARCH 1 OF EACH YEAR, AN OFFICIAL OF EACH NONPUBLIC SCHOOL SUBMIT TO
THE PENNSYLVANIA DEPARTMENT OF EDUCATION A LOAN REQUEST FOR THE DESIRED
TEXTBOOKS.  THE REQUESTS MUST BE SUBMITTED ON STANDARDIZED FORMS
"DISTRIBUTED BY THE DEPARTMENT OF EDUCATION ... TO EACH NONPUBLIC
SCHOOL OR THE APPROPRIATE CHIEF ADMINISTRATOR."  SECTION 4.6 OF THE
GUIDELINES PROVIDES THAT THE "(TEXTBOOKS REQUESTED WILL BE SHIPPED
DIRECTLY TO THE APPROPRIATE NONPUBLIC SCHOOL."  THUS, ALTHOUGH IN TERMS
THE FORM PROVIDED BY THE COMMONWEALTH FOR PARENTS OF NONPUBLIC SCHOOL
STUDENTS STATES THAT THE PARENTS OF THESE PUPILS REQUEST THE LOAN OF
TEXTBOOKS DIRECTLY FROM THE STATE, THE FORM IS NOT RETURNABLE TO THE
STATE, BUT TO THE NONPUBLIC SCHOOL, WHICH TABULATES THE REQUESTS AND
SUBMITS ITS TOTAL TO THE STATE.  THEN, AFTER THE SUBMISSION BY THE
NONPUBLIC SCHOOL IS APPROVED BY THE APPROPRIATE STATE OFFICIAL, THE
BOOKS ARE TRANSPORTED NOT TO THE CHILDREN WHOSE PARENTS OSTENSIBLY MADE
THE REQUEST, BUT DIRECTLY TO THE NONPUBLIC SCHOOL, WHERE THEY ARE
PHYSICALLY RETAINED WHEN NOT IN USE IN THE CLASSROOM. 

INDEED, THE GUIDELINES MAKE NO ATTEMPT TO MASK THE TRUE NATRUE OF
THE LOAN TRANSACTION.  IN EXPLICIT WORDS SEC. 4.10 DESCRIBES THE
TRANSACTION:  " TEXTBOOKS LOANED TO THE NONPUBLIC SCHOOLS:  (A) SHALL
BE MAINTAINED ON AN INVENTORY BY THE NONPUBLIC SCHOOL."  (EMPHASIS
ADDED.)  SECTION 4.11 PROVIDES:  " IT IS PRESUMED THAT TEXTBOOKS ON
LOAN TO NONPUBLIC SCHOOLS AFTER A PERIOD OF TIME WILL BE LOST, MISSING,
OBSOLETE OR WORN OUT.  THIS INFORMANTION SHOULD BE COMMUNICATED TO THE
DEPARTMENT OF EDUCATION.  AFTER A PERIOD OF SIX YEARS, TEXTBOOKS SHALL
BE DECLARED UNSERVICEABLE AND THE DISPOSAL OF SUCH SHALL BE AT THE
DISCRETION OF THE SECRETARY OF EDUCATION."  (EMPHASIS ADDED.)  THUS,
THE LOAN OF THE TEXTS IS TREATED BY THE REGULATIONS AS WHAT IT IN FACT
IS:  A LOAN FROM THE STATE DIRECTLY TO THE NONPUBLCI SCHOOL.  FINALLY,
SEC. 4.12 COMPLETELY REMOVES ANY POSSIBLE DOUBT.  IT PROVIDES: 

" THE NONPUBLIC SCHOOL OR THE AGENCY WHICH IT IS A MEMBER SHALL BE
RESPONSIBLE FOR MAINTAINING ON FILE CERTIFICATES OF REQUESTS FROM
PARENTS OF CHILDREN FOR ALL TEXTBOOK MATERIALS LOANED TO THEM UNDER
THIS ACT.  THE FILE MUST BE OPEN TO INSPECTION BY THE APPROPRIATE
AUTHORITY.  A LETTER CERTIFYING THE CERTIFICATES ON FILE SHALL
ACCOMPANY ALL LOAN REQUESTS." 

PLAINLY, THEN, WHATEVER MAY HAVE BEEN THE CASE UNDER THE NEW YORK
STATUTE SUSTAINED IN ALLEN, THE LOAN OSTENSIBLY TO STUDENTS IS, UNDER
ACT 195 A LOAN IN FACT TO THE SCHOOLS.  IN THIS REGARD, IT SHOULD BE
OBSERVED THAT SOPHISTICATED ATTEMPTS TO AVOID THE CONSTITUTION ARE JUST
AS INVALID AS SIMPLE-MINDED ONES.  LANE V. WILSON, 307 U.S. 268, 275
(1939). 

SECOND, IN ANY EVENT, ALLEN ITSELF MADE CLEAR THAT, FAR FROM
PROVIDING A PER SE IMMUNITY FROM EXAMINATION OF THE SUBSTANCE OF THE
STATE'S PROGRAM, EVEN IF THE FACT WERE, AND IT IS NOT, THAT TEXTBOOKS
ARE LOANED TO THE CHILDREN RATHER THAN TO THE SCHOOLS, THAT IS ONLY ONE
AMONG THE FACTORS TO BE WEIGHED INDETERMINING THE COMPATIBILITY OF THE
PROGRAM WITH THE ESTABLISHMENT CLAUSE.  COMMITTEE FOR PUBLIC EDUCATION
& RELIGIOUS LIBERTY V. NYQUIST, 413 U.S., AT 781.  AND, CLEARLY, IN THE
CONTEXT OF APPLCIATION OF THE FACTOR OF POLITICAL DIVISIVENESS, IT IS
WHOLLY IRRELEVANT WHETHER THE LOAN IS TO THE CHILDREN OR TO THE
SCHOOL.  A DIVISIVE POLITICAL POTENTIAL EXISTS BECAUSE AID PROGRAMS,
LIKE ACT 195, ARE DEPENDENT ON CONTINUING ANNUAL APPROPRIATIONS, AND
ACT 195'S TEXTBOOK LOAN PROGRAM, EVEN IF WE ACCEPTED IT AS A FORM OF
LOANS TO STUDENTS, INVOLVES INCREASINGLY MASSIVE SUMS NOW APPROACHING
$5,000,000 ANNUALLY.  /3/  IT WOULD BLIND REALITY TO TREAT MASSIVE AID
TO NONPUBLIC SCHOOLS, UNDER THE GUISE OF LOANS TO THE STUDENTS, AS NOT
CREATING " ASERIOUS POTENTIAL FOR DIVISIVE CONFLICT OVER THE ISSUE OF
AID TO RELIGION."  ANTE, AT 372.  /4/ THE FOCUS OF THE TEXTBOOK LOAN
PROGRAM IN TERMS OF MASSIVE FINANCIAL SUPPORT FOR RELIGIOUS SCHOOLS
THAT CREATES THE POTENTIAL DIVISIVENESS IS NO LESS REAL THAN IT IS IN
THE CASE OF ACT 195'S INSTRUCTIONAL MATERIALS PROVISIONS AND ACT 194'S
INVALIDATED PROGRAM FOR AUXILIARY SERVICES.  ACT 195 IS INTENDED SOLELY
AS A FINANCIAL AID PROGRAM TO RELIEVE THE DESPERATE FINANCIAL PLIGHT OF
NONPUBLIC, PRIMARILY PAROCHIAL, SCHOOLS.  THE PLURALITY SUGGESTS THAT
IT IS IMMATERIAL THAT ACT 195 HAS THAT CAST, IN CONTRAST WITH NEW
YORK'S STATUE IN ALLEN WHICH AUTHORIZED LOANS TO STUDENTS ATTENDING
BOTH PUBLIC AND NONPUBLIC SCHOOLS.  ANTE, AT 360 N. 8.  ON THE
CONTRARY, ACT 195'S LIMITAITION OF ITS FINANCIAL SUPPORT TO AID TO
NONPUBLIC SCHOOL CHILDREN EXACERBATES THE POTENTIAL FOR POLITICAL
DIVISIVENESS.  /5/ " IN THIS SITUATION, WHERE THE UNDERLYING ISSUE IS
THE DEEPLY EMOTIONAL ONE OF CHURCH-STATE RELATIONSHIPS, THE POTENTIAL
FOR SERIOUSLY DIVISIVE POLITICAL CONSEQUENCES NEEDS NO ELABORATION." 
COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, SUPRA,
AT 797. 

FINALLY, THE TEXTBOOK LOAN PROVISIONS OF ACT 195, EVEN IF OSTENSIBLY
LIMITING LOANS TO NONPUBLCI SCHOOL CHILDREN, VIOLATE THE ESTABLISHMENT
CLAUSE FOR REASONS INDEPENDENT OF THE POLITICAL DIVISVENESS FACTOR.  AS
I HAVE SAID, UNLIKE THE NEW YORK STATUTE IN ALLEN WHICH EXTENDED
ASSISTANCE TO ALL STUDENTS, WHETHER ATTENDING PUBLIC OR NONPUBLIC
SHCOOLS, ACT 195 EXTENDS TEXTBOOK ASSISTANCE ONLY TO A SPECIAL CLASS OF
STUDENTS, CHILDREN WHO ATTEND NONPUBLIC SCHOOLS WITH ARE, AS THE
PLURALITY NOTES, PRIMARILY RELIGIOUSLY ORIENTED.  THE ACT IN THAT
RESPECT CONTAINS THE SAME FATAL DEFECT AS THE NEW JERSEY STATUTE HELD
VIOLATIVE OF THE ESTABLISHMENT CLAUSE IN PUBLIC FUNDS FOR PUBLIC
SCHOOLS V. MARBURGER, 358 F.SUPP.  29 (NJ 1973), AFF'D, 417 U.S. 961
(1974).  THE STATUTE THERE INVOLVED WAS N.J.STAT.  ANN.  SEC. 18 A:58 -
63 WHICH FURNISHED STATE AID, IN AMOUNTS UP TO $10 FOR ELEMENTARY
SCHOOL STUDENTS AND UP TO $20 FOR HIGH SCHOOL STUDENTS, TO THE PARENTS
OF NONPUBLIC SCHOOL STUDENTS AS REIMBURSEMENT FOR THE COST OF "SECULAR,
NONIDEOLOGICAL TEXTBOOKS, INSTRUCTIONAL MATERIALS AND SUPPLIES."  WE
AFFIRMED THE HOLDING OF THE THREE-JUDGE COURT THAT "BECAUSE THE
LANGUAGE OF (THE STATUTE) LIMITS THE ASSISTANCE PROVIDED THEREIN ONLY
TO PARENTS OF CHILDREN WHO ATTEND NONPUBLIC, PREDOMINATELY RELIGIOUSLY
AFFILIATED SCHOOLS AND NOT TO PARENTS OF ALL SCHOOL CHILDREN, WE ARE
SATISFIED THAT ITS PRIMARY EFFECT IS TO ADVANCE RELIGION AND THAT IT IS
THERBY UNCONSTITUTIONAL."  358 F.SUPP., AT 36.  MARBURGER THUS
ESTABLISHES THAT THE PLURALITY'S RELIANCE TODAY UPON ALLEN IS CLEARLY
MISPLACED. 

INDEED, THAT RELIANCE IS ALSO MISPLACED IN LIGHT OF ITS OWN HOLDING
TODAY INVALIDATING THE PROVISIONS OF ACT 195 RESPECTING THE LOAN OF
INSTRUCTIONAL MATERIALS AND EQUIPMENT.  I HAVE NO DOUBT THAT SUCH
MATERIALS AND EQUIPMENT ARE TOOLS THAT SUBSTANTIALLY ENHANCE THE
QUALITY OF THE SECULAR EDUCATION PROVIDED BY THE RELIGIOSULY ORIENTED
SCHOOLS.  BUT SURELY THE HEART TOOLS OF THAT EDUCATION ARE THE
TEXTBOOKS THAT ARE PRESCRIBED FOR USE AND KEPT AT THE SCHOOLS, ALBEIT
FORMALLY AT THE REQUEST OF THE STUDENTS.  THUS, WHAT THE COURT SAYS OF
THE INSTRUCTIONAL MATERIALS AND EQUIPMENT, ANTE, AT 365 - 366, AMY BE
SAID PERHAPS EVEN MORE ACCURATELY OF THE TEXTBOOKS: 

" BUT FACED WITH THE SUBSTANTIAL AMOUNTS OF DIRECT SUPPORT
AUTHORIZED BY ACT 195, IT WOULD SIMPLY IGNORE REALITY TO ATTEMPT TO
SEPARATE SECUALR EDUCATIONAL FUNCTIONS FROM THE PREDOMINANTLY RELIGIOUS
ROLE PERFORMED BY MANY OF PENNSYLVAINA'S CHURCH-RELATED ELEMENTARY AND
SECONDARY SCHOOLS AND TO THEN CHARACTERIZE ACT 195 AS CHANNELING AID TO
THE SECULAR WITHOUT PROVIDING DIRECT AID TO THE SECTARIAN.  EVEN THOUGH
EARMARKED FOR SECULAR PURPOSES, 'WHEN IT FLOWS TO AN INSTITUTION IN
WHICH RELIGION IS SO PERVASIVE THAT A SUBSTANTIAL PROTION OF ITS
FUNCITIONS ARE SUBSUMED IN THE RELIGIOUS MISSION,' STATE AID HAS THE
IMPERMISSIBLE PRIMARY EFFECT OF ADVANCING RELIGION." 

IN SUM I JOIN THE COURT'S OPINION (PARTS I, II, IV, AND V), EXCEPT
THAT I WOULD GO FURTHER IN PART IV AND REST THE INVALIDATION OF THE
PROVISIONS OF ACT 195 FOR LOANS OF INSTRUCTIONAL MATERIALS AND
EQUIPMENT ALSO UPON THE POLITICAL DIVISIVENESS FACTOR.  I DISSENT FROM
PART III. 

/1/ THE COURT EMPHASIZED IN COMMITTEE FOR PUBLIC EDUCATION &
RELIGIOUS LIBERTY V. NYQUIST, 413 U.S. 756, 783 - 784, N. 39 (1973),
THAT "PRIMARY EFFECT" DID NOT CONNOTE A REQUIREMENT THAT THE COURT
RENDER AN ULTIMATE JUDGMENT ON THE EFFECT OF THE STATUTE IN QUESTION. 
THE COURT STATED: 

" APPELLEES, FOCUSING ON THE TERM 'PRINCIPAL OR PRIMARY EFFECT'
WHICH THIS COURT HAS UTILIZED IN EXPRESSING THE SECOND PRONG OF THE
THREE-PART TEST, ... HAVE ARGUED THAT THE COURT MUST DECIDE IN THESE
CASES WHETHER THE 'PRIMARY' EFFECT ON NEW YORK'S TUTITION GRANT PROGRAM
IS TO SUBSIDIZE RELIGION OR TO PROMOTE THESE LEGITMATE SECULAR
OBJECTIVES.... WE DO NOT THINKM THAT SUCH METAPHYSICAL JUDGMENTS ARE
EITHER POSSIBLE OR NECESSARY.  OUR CASE SIMPLY DO NOT SUPPORT THE
NOTION THAT A LAW FOUND TO HAVE A 'PRIMARY' EFFECT TO PROMOTE SOME
LEGITMATE END UNDER THE STATE'S POLICE POWER IS IMMUNE FROM FURTHER
EXAMINATION TO ASCERTAIN WHETHER IT ALSO HAS THE DIRECT AND IMMEDIATE
EFFECT OF ADVANCING RELIGION...." 

/2/ KURTZMAN SUPPORTS THIS CONCLUSION:  " WE HAVE ALREADY NOTED THAT
MODERN GOVERNMENTAL PROGRAMS HAVE SELF-PERPETUATING AND SELF-EXPANDING
PROPENSITIES.  THESE INTERNAL PRESSURES ARE ONLY ENHANCED WHEN THE
SCHEMES INOVLVE INSTITUTIONS WHOSE LEGITMATE NEEDS ARE GROWING AND
WHOSE INTERESTS HAVE SUBSTANTIAL POLITICAL SUPPORT.  NOR CAN WE FAIL TO
SEE THAT IN CONSTITUTIONAL ADJUDICATION SOME STEPS, WHICH WHEN TAKEN
WERE THOUGHT TO APPROACH 'THE VERGE,' HAVE BECOME THE PLATFORM FOR YET
FURTHER STEPS.  A CERTAIN MOMENTUM DEVELOPS IN CONSTITUTIONAL THEORY
AND IT CAN BE A 'DOWNHILL THRUST EASILY SET IN MOTION BUT DIFFICULT TO
RETARD OR STOP."  403 U.S. 602, 624 (1971).     /3/ I CONCEDE THAT I
FAILED TO APPREHEND THE SIGNIFICANCE OF THE POLITICAL DIVISIVENESS
FACTOR IN WRITING MY SEPARATE OPINION IN KURTZMAN, 403 U.S., AT 642 -
661. 

/4/ THE COURT STATED IN NYQUIST, 431 U.S., AT 797 N. 56: 

" THE SELF-PERPETUATING TENDENCIES OF ANY FORM OF GOVERNMENT AID TO
RELIGION HAVE BEEN A MATTER OF CONCERN RUNNING THROUGHOUT OUR
ESTABLISHMENT CLAUSE CASES.  IN SCHEMPP, THE COURT EMPHASIZED THAT IT
WAS 'NO DEFENSE TO URGE THAT THE RELIGIOUS PRACTICES HERE MAY BE
RELATIVELY MINOR ENCROACHMENTS ON THE FIRST AMENDMENT,' FOR WHAT TODAY
IS A 'TRICKLING STREAM' MAY BE A TORRENT TOMORROW.  374 U.S., AT 225. 
SEE ALSO LEMON V. KURTZMAN, 403 U.S., AT 624 - 625.  BUT, TO BORROW THE
WORDS FROM MR. JUSTICE RUTLEDGE'S FORCEFUL DISSENT IN EVERSON, IT IS
NOT ALONE THE POTENTIAL EXPANDABILITY OF STATE TAX AID THAT RENDERS
SUCH AID INVALID.  NOT EVEN 'THREE PENCE' COULD BE ASSESSED:  330 U.S.,
AT 40 - 41 (QUOTING FROM MADISON'S MEMORIAL AND REMONSTRANCE)." 

/5/ PARAPHRASING THE COURT'S OBSERVATION IN NYQUIST, SUPRA, AT 783:
" THERE HAS BEEN NO ENDEAVOR 'TO GUARANTEE THE SEPARATION BETWEEN
SECULAR AND RELIGIOUS EDUCATIONAL FUNCTIONS AND TO ENSURE THAT STATE
FINANCIAL AID SUPPORTS ONLY THE FORMER.'  LEMON V. KURTZMAN, SUPRA, AT
613.  INDEED, IT IS PRECISELY THE FUNCTION OF (ACT 195) TO PROVIDE
ASSISTANCE TO PRIVATE SCHOOLS, THE GREAT MAJORITY OF WHICH ARE
SEEKS TO RELIEVE THEIR FINANCIAL BURDENS SUFFICIENTLY TO ASSURE THAT
THEY CONTINUE TO HAVE THE OPTION TO SEND THEIR CHILDREN TO RELIGION
ORIENTED SCHOOLS.  AND WHILE THE OTHER PURPOSES FOR THAT AID--  TO
PERPETUATE A PLURALISTIC EDUCATIONAL ENVIRONMENT AND TO PROTECT THE
FISCLA INTEGRITY OF OVERBURDENED PUBLIC SCHOOLS--ARE CERTAINLY
UNEXCEPTIONABLE, THE EFFECT OF THE AID IS UMNISTAKEABLY TO PROVIDE
DESIRED FINANCIAL SUPPORT FOR NONPUBLIC, SECTARIAN INSTITUTIONS." 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE JUDGMENT IN PART AND
DISSENTING IN PART. 

I AGREE WITH THE COURT ONLY INSOFAR AS IT AFFIRMS THE JUDGMENT OF
THE DISTRICT COURT.  MY LIMITED AGREEMENT WITH THE COURT AS TO THIS
ACTION LEADS ME, HOWEVER, TO AGREE GENERALLY WITH THE VIEWS EXPRESSED
BY MR. JUSTICE REHNQUIST AND MR. JUSTICE WHITE IN REGARD TO THE OTHER
PROGRAMS UNDER REVIEW.  I ESPECIALLY FIND IT DIFFICULT TO ACCEPT THE
COURT'S EXTRAVAGANT SUGGESTION OF POTENTIAL ENTANGLEMENT WHICH IT FINDS
IN THE "AUXILIARY SERVICES" PROGRAM OF ACT 194.  HERE, THE COURT'S
HOLDING, IT SEEMS TO ME, GOES BEYOND ANY PRIOR HOLDINGS OF THIS COURT
AND, INDEED, CONFLICTS WITH OUR HOLDINGS IN BOARD OF EDUCATION V.
ALLEN, 392 U.S. 236 (1968), AND LEMON V. KURTZMAN, 403 U.S. 602
(1971).  THERE IS ABOSLUTELY NO SUPPORT IN THIS RECORD OR, FOR THAT
MATTER, IN ORDINARY HUMAN EXPERIENCE FOR THE CONCERN SOME SEE WITH
RESPECT TO THE "DANGERS" LURKING IN EXTENDING COMMON, NONSECTARIAN
TOOLS OF THE EDUCATION PROCESS--, ESPECIALLY REMEDIAL TOOLS--TO
STUDENTS IN PRIVATE SCHOOLS.  AS I NOTED IN MY SEPARATE OPINION IN
COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, 413 U.S.
756 (1973), THE "FUNDAMENTAL PRINCIPLE WHICH I SEE RUNNING THROUGH OUR
PRIOR DECISIONS IN THIS DIFFICULT AND SENSITIVE FIELD OF LAW ... IS
PREMISED MORE ON EXPERIENCE AND HISTORY THAN ON LOGIC."  ID., AT 802. 
CERTAINLY, THERE IS NO BASIS IN "EXPERIENCE AND HISTORY" TO CONCLUDE
THAT A STATE'S ATTEMPT TO PROVIED--THROUGH THE SERVICES OF ITS OWN
STATE-SELECTED PROFESSIONALS--THE REMDIAL ASSISTANCE NECESSARY FOR ALL
ITS CHILDREN POSES THE SAME POTENTIAL FOR UNNECESSARY ADMINISTRATIVE
ENTANGLEMENT OR DIVISIVE POLITICAL CONFRONTATION WHICH CONCERNED THE
COURT IN LEMON V. KURTZMAN, SUPRA.  INDEED, I SEE AT LEAST AS MUCH
POTENTIAL FOR DIVISIVE POLITICAL DEBATE IN OPPOSITION TO THE CRABBED
ATTITUDE THE COURT SHOWS IN THIS CASE.  SEE, E.G., ANTE, AT 371 N. 21. 

IF THE CONSEQUENCE OF THE COURT'S HOLDING OPERATED ONLY TO PENALIZE
INSTITUTIONS WITH A RELIGIOUS AFFILIATION, THE RESULT WOULD BE GRIEVOUS
ENOUGH; NOTHING IN THE RELIGION CLAUSES OF THE FIRST AMENDMENT PERMITS
GOVERNMENTAL POWER TO DISCRIMINATE AGAINST OR AFFIRMATIVELY STIFLE
RELIGIONS OR RELIGIOUS ACTIVITY.  EVERSON V. BOARD OF EDUCATION, 330
U.S. 1, 18 (1947).  BUT THIS HOLDING DOES MORE:  IT PENALIZES CHILDREN-
CHILDREN WHO HAVE THE MISFORTUNE TO HAVE TO COPE WITH THE LEARNING
PROCESS UNDER EXTRAORDINARILY HEAVY PHYSICAL AND PSYCHOLOGICAL BURDENS,
FOR THE MOST PART CONGENITAL.  THIS PENALTY STRIKES THEM NOT BECAUSE OF
ANY ACT OF THEIRS BUT BECAUSE OF THEIR PARENTS' CHOICE OF RELIGIOUS
EXERCISE.  THIS, AS MR. JUSTICE REHNQUIST EFFECTIVELY DEMONSTRATES,
TOTALLY TURNS ITS BACK ON WHAT MR. JUSTICE DOUGLAS WROTE FOR THE COURT
IN ZORACH V. CLAUSON, 343 U.S. 306, 313 - 314 (1952), PARTICULARLY: 

" WHEN THE STATE ENCOURAGES RELIGIOUS INSTRUCTION OR COOPERATES WITH
RELIGIOUS AUTHORITIES BY ADJUSTING THE SCHEDULE OF PUBLIC EVENTS TO
RESPECTS THE RELIGIOUS NATURE OF OUR PEOPLE AND ACCOMMODATES THE PUBLIC
SERVICE TO THEIR SPIRITUAL NEEDS." 

TO HOLD, AS THE COURT NOW DOES, THAT THE CONSTITUTION PERMITS THE
STATES TO GIVE SPECIAL ASSISTANCE TO SOME OF ITS CHILDREN WHOSE
HANDICAPS PREVENT THEIR DERIVING THE BENEFIT NORMALLY ANTICIPATED FROM
THE EDUCATION REQUIRED TO BECOME A PRODUCTIVE MEMBER OF SOCIETY AND, AT
THE SAME TIME, TO DENY THOSE BENEFITS TO OTHER CHILDREN ONLY BECUASE
THEY ATTEND A LUTHERAN, CATHOLIC, OR OTHER CHURCH-SPONSORED SCHOOL DOES
NOT SIMPLY TILT THE CONSTITUTION AGAINST RELIGION; IT LITERALLY TURNS
THE RELIGION CLAUSES ON THEIR HEADS.  AS MR. JUSTICE DOUGLAS SAID FOR
THE COURT IN ZORACH, SUPRA, THIS IS 

"TO FIND IN THE CONSTITUTION A REQUIREMENT THAT THE GOVERNMENT SHOW
A CALLOUS INDIFFERENCE TO RELIGIOUS GROUPS.  THAT WOULD BE PREFERRING
THOSE WHO BELIEVE IN NO RELIGION OVER THOSE WHO DO BELIEVE."  343 U.S.,
AT 314. 

THE MELANCHOLY CONSEQUENCE OF WHAT THE COURT DOES TODAY IS TO FORCE
THE PARENT TO CHOOSE BETWEEN THE "FREE EXERCISE" OF A RLIGIOUS BELIEF
BY OPTING FOR A SECTARIAN EDUCATION FOR HIS CHILD OR TO FOREGO THE
OPPORTUNITY FOR HIS CHILD TO LEARN TO COPE WITH--OR OVERCOME--SERIOUS
CONGENTIAL LEARNING HANDICAPS, THROGH REMEDIAL ASSISTANCE FINANCED BY
THIS TAXES.  AFFLUENT PARENTS, BY EMPLOYING PRIVATE TEACHING
SPECIALISTS, WILL BE ABLE TO COPE WITH THIS DENIAL OF EQUAL PROTECTION,
WHICH IS, FOR ME, A GROSS VIOLATION OF FOURTEENTH AMENDMENT RIGHTS, BUT
ALL OTHERS WILL BE FORCED TO MAKE A CHOICE BETWEEN THEIR JUDGMENT AS TO
THEIR CHILDREN'S SPIRITUAL NEEDS AND THEIR TEMPORAL NEED FOR SPECIAL
REMEDIAL LEARNING ASSISTANCE.  ONE CAN ONLY HOPE THAT, AT SOME FUTURE
DATE, THE COURT WILL COME TO A MORE ENLIGHTENED AND TOLERANT VIEW OF
THE FIRST AMENDMENT'S GUARANTEE OF FREE EXERCISE OF RELIGION, THUS
ELIMINATING THE DENIAL OF EQUAL PROTECTION TO CHILDREN IN CHURCH
SPONSORED SCHOOLS, AND TAKE A MORE REALISTIC VIEW THAT CAREFULLY
LIMITED AID TO CHILDREN IS NOT A STEP TOWARD ESTABLISHING A STATE
RELIGION--AT LEAST WHILE THIS COURT SITS. 

MR. JUSTICE REHNQUIST WITH WHOM MR. JUSTICE WHITE JOINS, CONCURRING
IN THE JUDGMENT IN PART AND DISSENTING IN PART. 

SUBSTANTIALLY FOR THE REASONS SET FORTH IN MY OPINION AND THOSE OF
THE CHIEF JUSTICE AND MR. JUSTICE WHITE IN COMMITTEE FOR PUBLIC
EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, 431 U.S. 756 (1973), AND
SLOAN V. LEMON, 413 U.S. 825 (1973), I WOULD AFFIRM THE JUDGMENT OF THE
DISTRICT COURT. 

TWO ACTS OF THE PENNSYLVANIA LEGISLATURE ARE UNDER ATTACK IN THIS
CASE.  ACT 195 INCLUDES A PROGRAM THAT PROVIDES FOR THE LOAN OF
TEXTBOOKS FREE OF CHARGE TO ELEMENTARY AND SECONDARY SCHOOL STUDENTS
ATTENDING NONPUBLIC SHCOOLS, JUST AS OTHER PROVISIONS OF PENNSYLVANIA
LAW PROVIDE SIMILAR BENEFITS TO CHILDREN ATTENDING PUBLIC SCHOOLS, PA.
STAT. ANN., TIT. 24, SEC. 8 - 801.  I AGREE WITH MR. JUSTICE STEWART
THAT THIS PROGRAM IS CONSTITUTIONALLY INDISTINGUISHABLE FROM THE NEW
YORK TEXTBOOK LOAN PROGRAM UPHELD IN BOARD OF EDUCATION V. ALLEN, 392
U.S. 236 (1968), AND ON THE AUTHORITY OF THAT CASE I JOIN THE JUDGMENT
OF THE COURT INSOFAR AS IT UPHOLDS THE TEXTBOOK LOAN PROGRAM. 

THE COURT STRIKES DOWN OTHER PROVISIONS OF ACT 195 DEALING WITH
INSTRUCTIONAL MATERIALS AND EQUIPMENT /1/ BECAUSE IT FINDS THAT THEY
HAVE "THE UNCONSTITUTIONAL PRIMARY EFFECT OF ADVANCING RELIGION BECAUSE
OF THE PREDOMINANTLY RELIGIOUS CHARACTER OF THE SCHOOLS BENEFITING FROM
THE ACT."  ANTE, AT 363 (FOOTNOTE OMITTED).  THIS APPARENTLY FOLLOWS
FROM THE HIGH PERCENTAGE OF NONPUBLIC SCHOOLS THAT ARE "CHURCH-RELATED
OR RELIGIOUSLY AFFILIATED EDUCATIONAL INSTITUTIONS."  ANTE, AT 36'. 
THE COURT THUS AGAIN APPEARS TO FOLLOW "THE UNSUPPORTABLE APPROACH OF
MEASURING THE 'EFFECT' OF A LAW BY THE PERCENTAGE OF" SECTARIAN SCHOOLS
BENEFITED.  COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V.
NYQUIST, SUPRA, AT 804 (OPINION OF BURGER, C. J.).  I FIND THAT
APPROACH TO THE "PRIMARY EFFECT" BRANCH OF OUR THREE-PRONGED TEST NO
MORE SATISFACTORY IN THE CONTEXT OF THIS INSTRUCTIONAL MATERIALS AND
EQUIPMENT PROGRAM THAN IT WAS IN THE CONTEXT OF THE TUITION
REIMBURSEMENT AND TAX RELIEF PROGRAMS INVOLVED IN NYQUIST, SUPRA, AND
SLOAN, SUPRA. 

ONE NEED LOOK NO FURTHER THAN TO THE MAJORITY OPINION FOR A
DEMONSTRATION OF THE ARBITRARINESS OF THE PERCENTAGE APPROACH TO
PRIMARY EFFECT.  IN DETERMININING THE CONSTITUTIONALITY OF THE TEXTBOOK
LOAN PROGRAM ESTABLISHED BY ACT 195, THE COURT VIEWS THE PROGRAM IN THE
CONTEXT OF THE STATE'S "WELL-ESTABLISHED POLICY OF LENDING TEXTBOOKS
FREE OF CHARGE TO ELEMENTARY AND SECONDARY SCHOOL STUDENTS."  ANTE, AT
360 (FOOTNOTE OMITTED).  BUT WHEN IT COMES TIME TO CONSIDER THE SAME
ACT'S INSTRUCTIONAL MATERIALS AND EQUIPMENT PROGRAM, WHICH IS NOT
ALLEGED TO MAKE AVAILABLE TO PRIVATE SCHOOLS ANY MATERIALS AND
EQUIPMENT THAT ARE NOT PROVIDED TO PUBLIC SCHOOLS, /2/ THE MAJORITY
STRIKES DOWN THIS PROGRAM BECAUSE MORE THAN 75% OF THE NONPUBLIC
SCHOOLS ARE CHURCH RELATED OR RELIGIOUSLY AFFILIATED. 

IF THE NUMBER OF SECTARIAN SCHOOLS WERE MEASURED AS A PERCENTAGE OF
ALL SCHOOLS, PUBLIC AND PRIVATE, THEN NO DOUBT THE MAJORITY WOULD
CONCLUDE THAT TEH PRIMARY EFFECT OF THE INSTRUCTIONAL MATERIALS AND
EQUIPMENT PROGRAM IS NOT TO ADVANCE RELIGION.  /3/ ONE LOOKS IN VAIN,
HOWEVER, FOR AN EXPLANATION OF THE MAJORITY'S SELECTION OF THE NUMBER
OF PRIVATE SCHOOLS AS THE DENOMINATOR IN ITS INSTRUCTIONAL MATERIALS
AND EQUIPMENT CALCULATIONS.  THE ONLY APPARENT EXPLANATION MIGHT BE
THAT ACT 195 APPLIES ONLY TO PRIVATE SCHOOLS WHILE DIFFERENT
LEGISLATION, PA. STAT. ANN., TIT. 24, SEC. 8 - 801, PROVIDES EQUIPMENT
AND MATERIALS TO PUBLIC SCHOOLS.  BUT SURELY THIS IS NOT A SATISFACTORY
EXPLANATION, FOR THE MAJORITY TELLS US, IN CONNECTION WITH ITS
DISCUSSION OF THE TEXTBOOK LOAN PROGRAM, WHICH IS ADMINISTERED TO THE
PUBLIC SCHOOLS THROUGH THE SAME STATUTORY PROVISION THAT PROVIDES
EQUIPMENT AND MATERIALS TO THE PUBLIC SCHOOLS, THAT "IT IS OF NO
CONSTITUTIONAL SIGNIFICANCE WHETHER THE GENERAL PROGRAM IS CODIFIED IN
ONE STATUTE OR TWO."  ANTE, AT 360 N. 8.  WE ARE LEFT THEN WITH NO
EXPLANATION FOR THE ARBITRARY COURSE CHOSEN. 

THE FAILURE OF THE MAJORITY TO JUSTIFY THE DIFFERING APPROACHES TO
TEXTBOOKS AND INSTRUCTIONAL MATERIALS AND EQUIPMENT IN THE ABOVE
RESPECT IS SYMPTOMATIC OF ITS FAILURE EVEN TO ATTEMPT TO DISTINGUISH
THE PENNSYLVANIA TEXTBOOK LOAN PROGRAM, WHICH IT UPHOLDS, FROM THE
PENNSYLVANIA INSTRUCTIONAL MATERIALS AND EQUIPMENT LOAN PROGRAM, WHICH
IT FINDS UNCONSTITUTIONAL.  ONE MIGHT EXPECT THAT THE DISTINCTION LIES
EITHER IN THE NATURE OF THE TANGIBLE ITEMS BEING LOANED OR IN THE
MANNER IN WHICH THE PROGRAMS ARE OPERATED.  BUT THE MAJORITY CONDEDES
THAT "THE MATERIAL AND EQUIPMENT THAT ARE THE SUBJECTS OF THE LOAN--
MAPS, CHARTS, AND LABORATORY EQUIPMENT, FOR EXAMPLE--ARE 'SELF
POLICING), IN THAT STARTING AS SECULAR, NONIDEOLOGICAL AND NEUTRAL,
THEY WILL NOT CHANGE IN USE.'"  ANTE, AT 365, QUOTING 374 F.SUPP.  639,
660 (ED PA. 1974).  NOR CAN THE FACT THAT THE SCHOOL IS THE BAILEE BE
REGARDED AS CONSTITUTIONALLY DETERMINATIVE.  COMMITTEE FOR PUBLIC
EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, 413 U.S., AT 781.  IN THE
TEXTBOOK LOAN PROGRAM UPHELD IN ALLEN, SUPRA, THE PRIVATE SCHOOLS WERE
RESPONSIBLE FOR TRANSMITTING THE BOOK REQUESTS TO THE BOARD OF
EDUCATION AND WERE PERMITTED TO STORE THE LOANED BOOKS ON THEIR
PREMISES.  392 U.S., AT 244 N. 6.  I FAIL TO SEE HOW THE INSTRUCTIONAL
MATERIALS AND EQUIPMENT PROGRAM CAN BE DISTINGUISHED IN ANY SIGNIFICANT
RESPECT.  UNDER BOTH PROGRAMS "OWNERSHIP REMAINS, AT LEAST TECHNICALLY,
IN THE STATE, " ID., AT 243.  ONCE IT IS CONCEDED THAT NO DANGER OF
DIVERSION EXISTS, IT IS DIFFICULT TO ARTICULATE ANY PRINCIPLED BASIS
UPON WHICH TO DISTINGUISH THE TWO ACT 195 PROGRAMS. 

THE COURT ESCHEWS ITS PRIMARY-EFFECT ANALYSIS IN STRIKING DOWN ACT
194, ANTE, AT 369, AND RELIES INSTEAD UPON THE PROPOSITION THAT THE ACT
"FIVES) RISE TO A CONSTITUTIONALLY INTOLERABLE DEGREE OF ENTANGLEMENT
BETWEEN CHURCH AND STATE."  ANTE, AT 370.  ACKNOWLEDGING THAT ACT 194
AUTHORIZES STATE FINANCING "OF TEACHERS ONLY FOR REMEDIAL AND
EXCEPTIONAL STUDENTS, AND NOT FOR NORMAL STUDENTS PARTICIPATING IN THE
CORE CURRICULUM," IBID., THE COURT NONETHELESS FINDS THIS CASE
INDISTINGUISHABLE FROM LEMON V. KURTZMAN AND COMPANION CASES, 403 U.S.
602 (1971), IN WHICH SALARY SUPPLEMENT PROGRAMS FOR CORE CURRICULUM
TEACHERS WERE FOUND UNCONSTITUTIONAL.  "(A) STATE-SUBSIDIZED GUIDANCE
COUNSELOR IS SURELY AS LIKELY AS A STATE-SUBSIDIZED CHEMISTRY TEACHER
TO FAIL ON OCCASION TO SEPARTE RELIGIOUS INSTRUCTION AND THE
ADVANCEMENT OF RELIGIOUS BELIEFS FROM HIS SECULAR EDUCATIONAL
RESPONSIBILITES."  ANTE, AT 371 (FOOTNOTE OMITTED).     I FIND THIS
PROTION OF THE COURT'S OPINION DEFICIENT AS A MATTER OF PROCESS AND
INSUPPORTABLE AS A MATTER OF LAW.  THE BURDEN OF PROOF ORDINARILY RESTS
UPON THE PLAINTIFF, BUT THE COURT'S CONCLUSION THAT THE DANGERS
PRESENTED BY A STATE-SUBSIDIZED GUIDANCE COUNSELOR ARE THE SAME AS
THOSE PRESENTED BY A STATE-SUBSIDIZED CHEMISTRY TEACHER IS APPARENTLY
NO MORE THAN AN EX CATHEDRA PRONOUNCEMENT ON THE PART OF THE COURT, IF
ONE MAY USE THAT TERM IN A CASE SUCH AS THIS, SINCE THE DISTRICT COURT
FOUND THE FACTS TO BE EXACTLY THE OPPOSITE--AFTER CONSIDERATION OF
STIPULATIONS OF FACT AND AN EVIDENTIARY HEARING: 

" THE COMMONWEALTH, RECOGNIZING THE LOGISTICAL REALITIES, PROVIDED
FOR TRAVELING THERAPISTS RATHER THAN TRAVELING PUPILS.  THERE IS NO
EVIDENCE WHATSOEVER THAT THE PRESENCE OF THE THERAPISTS IN THE SCHOOLS
WILL INVOLVE THEM IN THE RELIGIOUS MISSIONS OF THE SCHOOLS.... THE
NOTION THAT BY SETTING FOOT INSIDE A SECTARIAN SCHOOL A PROFESSIONAL
THERAPIST OR COUNSELOR WILL SUCCUMB TO SECTARIANIZATION OF HIS OR HER
PROFESSIONAL WORK IS NOT SUPPORTED BY ANY EVIDENCE."  374 F.SUPP., AT
657.  THE PROPENSITY OF THE COURT TO DISREGARD FINDINGS OF FACT BY
DISTRICT COURTS IN ESTABLISHMENT CLAUSE CASES, SEE ALSO LEMON V.
KURTZMAN, 403 U.S., AT 665 - 667 (OPINION OF WHITE, J.), IS AT VARIANCE
WITH THE ESTABLISHED DIVISION OF RESPONSIBILITIES BETWEEN TRIAL AND
APPELLATE COURTS IN THE FEDERAL SYSTEM, FED. RULE CIV. PROC. 52 (A). 

AS A MATTER OF CONSTITUTIONAL LAW, THE HOLDING BY THE MAJORITY THAT
THIS CASE IS CONTROLLED BY LEMON V. KURTZMAN, SUPRA, MARKS A
SIGNIFICANT SUB SILENTIO EXTENSION OF THAT 1971 DECISION.  IN THAT CASE
THE COURT STRUCK DOWN THE RHODE ISLAND SALARY SUPPLEMENT PROGRAM, UNDER
WHICH TEACHERS EMPLOYED BY NONPUBLIC SCHOOLS COULD QUALIFY FOR
ADDITIONAL SALARY PAYMENTS FROM THE STATE IN ORDER TO BRING THEIR
SALARIES MORE CLOSELY IN LINE WITH THE PREVAILING SCALE IN PUBLIC
SCHOOLS, AND A PENNSYLVANIA PROGRAM AUTHORIZING DIRECT REIMBURSEMENT TO
NONPUBLIC SCHOOLS; IN ORDER TO QUALIFY, THE TEACHERS COULD TEACH ONLY
SUBJECTS THAT WERE OFFERED IN THE PUBLIC SCHOOLS.  THE PREMISE
SUPPORTING THE COURT'S CONCLUSION THAT THESE PROGRAMS "INVOLVED)
EXCESSIVE ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION,"  403 U.S.,
614, IS FOUND AT 617: 

" WE CANNOT IGNORE THE DANGER THAT A TEACHER UNDER RELIGIOUS CONTROL
AND DISCIPLINE POSES TO THE SEPARATION OF THE RELIGIOUS FROM THE PURELY
SECULAR ASPECTS OF PRECOLLEGE EDUCATION.  THE CONFLICT OF FUNCTIONS
INHERES IN THE SITUATION."  (EMPHASIS ADDED.)  SEE ALSO ID., AT 618. 
THE AUXILIARY SERVICES PROGRAM ESTABLISHED BY ACT 194 DIFFERS FROM THE
PROGRAMS STRUCK DOWN IN LEMON IN TWO IMPORTANT RESPECTS.  FIRST THE
OPPORTUNITIES FOR RELIGIOUS INSTRUCTION THROUGH THE AUXILIARY SERVICES
PROGRAM ARE GREATLY REDUCED BECAUSE OF THE CONSIDERABLY MORE LIMITED
REACH OF THE ACT.  UNLIKE THE CORE CURRICULUM INSTRUCTION PROVIDED IN
THE LEMON PROGRAMS, "AUXILIARY SERVICES" ARE DEFINED IN ACT 194 TO
EMBRACE A NARROWER RANGE OF SERVICES: 

"' AUXILIARY SERVICES' MEANS GUIDANCE, COUNSELING AND TESTING
SERVICES; PSYCHOLOGICAL SERVICES; SERVICES FOR EXCEPTIONAL CHILDREN;
REMEDIAL AND THERAPEUTIC SERVICES; SPEECH AND HEARING SERVICES;
SERVICES FOR THE IMPROVEMENT OF THE EDUCATIONALLY DISADVANTAGED (SUCH
AS, BUT NOT LIMITED TO, TEACHING ENGLISH AS A SECOND LANGUAGE), AND
SUCH OTHER SECULAR, NEUTRAL, NONIDEOLOGICAL SERVICES AS ARE OF BENEFIT
TO NONPUBLIC SCHOOL CHILDREN AND ARE PRESENTLY OR HEREAFTER PROVIDED
FOR PUBLIC SCHOOL CHILDREN OF THE COMMONWEALTH."  ACT 194, SEC. 1 (B). 

EVEN IF THE DISTINCTION BETWEEN THESE SERVICES AND CORE CURRICULA IS
THOUGHT TO BE A MATTER OF DEGREE, THE SECOND DISTINCTION BETWEEN THE
PROGRAMS INVOLVED IN LEMON AND ACT 194 IS A DIFFERENCE IN KIND.  ACT
194 PROVIDES THAT THESE AUXILIARY SERVICES SHALL BE PROVIDED BY
PERSONNEL OF THE PUBLIC SCHOOL SYSTEM.  /4/ SINCE THE DANGER OF
ENTANGLEMENT ARTICULATED IN LEMON FLOWED FROM THE SUSCEPTIBILITY OF
PAROCHIAL SCHOOL TEACHERS TO "RELIGIOUS CONTROL AND DISCIPLINE," I
WOULD HAVE ASSUMED THAT EXORCISATION OF THAT CONSTITUTIONAL "EVIL"
WOULD LEAD TO A DIFFERENT CONSTITUTIONAL RESULT.  THE COURT DOES NOT
CONTEND THAT THE PUBLIC SCHOOL EMPLOYEES WHO WOULD ADMINISTER THE
AUXILIARY SERVICES ARE SUBJECT TO "RELIGIOUS CONTROL AND DISCIPLINE." 
IN FACT THE COURT CONCEDES THAT "AUXILIARY SERVICES PERSONNEL, BECAUSE
NOT EMPLOYED BY THE NONPUBLIC SCHOOLS, ARE NOT DIRECTLY SUBJECT TO
"RELIGIOUS DISCIPLINE OF A RELIGIOUS AUTHORITY."  ANTE, AT 371.  THE
DECISION OF THE COURT THAT ACT 194 IS UNCONSTITUTIONAL RESTS ULTIMATELY
UPON THE UNSUBSTANTIATED FACTUAL PROPOSITION THAT "(THE POTENTIAL FOR
IMPERMISSIBLE FOSTERING OR RELIGION UNDER THSES CIRCUMSTANCES, ALTHOUGH
SOMEWHAT REDUCED, IS NONETHELESS PRESENT."  ANTE, AT 372.  " THE TEST
(OF ENTANGLEMENT) IS INESCAPABLY ONE OF DEGREE," WALZ V. TAX COMM'N,
397 U.S. 664, 674 (1970), BUT IF THE COURT IS FREE TO IGNORE THE
RECORD, THEN APPELLEES ARE LEFT TO WONDER, WITH GOOD REASON, WHETHER
THE POSSIBILITY OF MEETING THE ENTANGLEMENT TEST IS NOW ANYTHING MORE
THAN "A PROMISE TO THE EAR TO BE BROKEN TO THE HOPE, A TEASING ILLUSION
LIKE A MUNIFICENT BEQUEST IN A PAUPER'S WILL."  EDWARDS V. CALIFORNIA,
314 U.S. 160, 186 (1941) (JACKSON, J., CONCURRING). 

I REMAIN CONVICED OF THE CORRECTNESS OF MR. JUSTICE WHITE'S
STATEMENT IN HIS DISSENTING OPINION IN COMMITTEE FOR PUBLIC EDUCATION &
RELIGIOUS LIBERTY V. NYQUIST, 413 U.S., AT 814 - 815: 

" POSITING AN OBLIGATION ON THE STATE TO EDUCATE ITS CHILDREN, WHICH
EVERY STATE ACKNOWLEDGES, IT SHOULD BE WHOLLY ACCEPTABLE FOR THE STATE
TO CONTRIBUTE TO THE SECULAR EDUCATION OF CHILDREN GOING TO SECTARIAN
SCHOOLS RATHER THAN TO INSIST THAT IF PARENTS WANT TO PROVIDE THEIR
CHILDREN WITH RELIGIOUS AS WELL AS SECULAR EDUCATION, THE STATE WILL
REFUSE TO CONTRIBUTE ANYTHING TO THEIR SECULAR TRAINING." 

I AM DISTURBED AS MUCH BY THE OVERTONES OF THE COURT'S OPINION AS BY
ITS ACTUAL HOLDING.  THE COURT APPARENTLY BELIEVES THAT THE
ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT NOT ONLY MANDATES RELIGIOUS
NEUTRALITY ON THE PART OF GOVERNMENT BUT ALSO REQUIRES THAT THIS COURT
GO FURTHER AND THROW ITS WEIGHT ON THE SIDE OF THOSE WHO BELIEVE THAT
OUR SOCIETY AS A WHOLE SHOULD BE A PURELY SECULAR ONE.  NOTHING IN THE
FIRST AMENDMENT OR IN THE CASES INTERPRETING IT REQUIRES SUCH AN
EXTREME APPROACH TO THIS DIFFICULT QUESTION, AND "(ANY INTERPRETATION
OF (THE ESTABLISHMENT CLAUSE) AND THE CONSTITUTIONAL VALUES IT SERVES
MUST ALSO TAKE ACCOUNT OF THE FREE EXERCISE CLAUSE AND THE VALUES IT
SERVES."  P. KAUPER, RELIGION AND THE CONSTITUTION 79 (1964).  AS MR.
JUSTICE DOUGLAS WROTE FOR THE COURT IN ZORACH V. CLAUSON, 343 U.S. 306,
313 - 314 (1952): 

     " WE ARE A RELIGIOUS PEOPLE WHOSE INSTITUTIONS PRESUPPOSE A

  SUPREME BEING.  WE GUARANTEE THE FREEDOM TO WORSHIP AS ONE

CHOOSES.  WE MAKE ROOM FOR AS WIDE A VARIETY OF BELIEFS AND

 CREEDS AS THE SPIRITUAL NEEDS OF MAN DEEM NECESSARY.  WE SPONSOR

  AN ATTITUDE ON THE PART OF GOVERNMENT THAT SHOWS NO PARTIALITY TO

  ANY ONE GROUP AND THAT LETS EACH FLOURISH ACCORDING TO THE ZEAL

  OF ITS ADHERENTS AND THE APPEAL OF ITS DOGMA.  WHEN THE STATE

  ENCOURAGES RELIGIOUS INSTRUCTION OR COOPERATES WITH RELIGIOUS

  AUTHORITIES BY ADJUSTING THE SCHEDULE OF PUBLIC EVENTS TO

  SECTARIAN NEEDS, IT FOLLOWS THE BEST OF OUR TRADITIONS.  FOR IT

  THEN RESPECTS THE RELIGIOUS NATURE OF OUR PEOPLE AND ACCOMMODATES

THE PUBLIC SERVICE TO THEIR SPIRTUAL NEEDS.  TO HOLD THAT IT MAY

  NOT WOULD BE TO FIND IN THE CONSTITUTION A REQUIREMENT THAT THE

  GOVERNMENT SHOW A CALLOUS INDIFFERENCE TO RELIGIOUS GROUPS.  THAT

  WOULD BE PREFERRING THOSE WHO BELIEVE IN NO RELIGION OVER THOSE

  WHO DO BELIEVE.  GOVERNMENT MAY NOT FINANCE RELIGOUS GROUPS NOR

  UNDERTAKE RELIGIOUS INSTRUCTION NOR BLEND SECULAR AND SECTARIAN

  EDUCATION NOR USE SECULAR INSTITUTIONS TO FORCE ONE OR SOME

  RELIGION ON ANY PERSON.  BUT WE FIND NO CONSTITUTIONAL

  REQUIREMENT WHICH MAKES IT NECESSARY FOR GOVERNMENT TO BE HOSTILE

TO RELIGION AND TO THROW ITS WEIGHT AGAINST EFFORTS TO WIDEN THE

  EFFECTIVE SCOPE OF RELIGIOUS INFLUENCE." 

EXCEPT INSOFAR AS THE COURT UPHOLDS THE TEXTBOOK LOAN PROGRAM, I
RESPECTFULLY DISSENT. 

/1/ THE DISTRICT COURT UPHELD THESE SECTIONS OF ACT 195 EXCEPT
INSOFAR AS THEY "PERMITTED) THE LOAN OF INSTRUCTIONAL EQUIPMENT WHICH
CAN BE EASILY DIVERTED TO A RELIGIOUS USE."  374 F. SUPP. 639, 661 (ED
PA. 1974).  THE APPELLEES HAVE NOT SOUGHT REVIEW OF THIS RULING.  SEE
ANTE, AT 357 - 358, N. 7.  MY USE OF THE TERM "INSTRUCTIONAL EQUIPMENT"
IN THIS OPINION IS INTENDED, THEREFORE, TO BE COEXTENSIVE WITH THAT
PORTION OF THE PROGRAM UPHELD BY THE DISTRICT COURT.  SEE ALSO 1972
REVISIONS TO THE GUIDELINES FOR THE ADMINISTRATION OF ACTS 194 AND 195,
REPRODUCED AS APPENDIX A TO BRIEF FOR APPELLANTS. 

/2/ 374 F. SUPP., AT 644.  PA. STAT. ANN., TIT. 24, SEC. 8 - 801. 
INSTRUCTIONAL MATERIALS AND EQUIPMENT ARE DEFINED IN ACT 195 LARGELY IN
TERMS OF MATERIALS AND EQUIPMENT THAT "ARE PRESENTLY OR HEREAFTER
PROVIDED FOR PUBLIC SCHOOL CHILDREN OF THE COMMONWEALTH."  ACT 195,
SEC. 1 (B). 

/3/ IN 1972, "(APPROXIMATELY ONE QUARTER FO ALL CHILDREN IN THE 

COMMONWEALTH, IN COMPLIANCE WITH THE COMPULSORY ATTENDANCE
PROVISIONS OF THIS ACT, ATTENDED) NONPUBLIC SCHOOLS."  ACT 195, SEC. 1
(A).  IF IT BE ASSUMED THAT THE AVERAGE NUMBER OF STUDENTS PER
STUDENTS PER NONSECTARIAN SCHOOL, THEN LESS THAN 19% OF ALL STUDENTS
ATTEND SECTARIAN SCHOOLS. 

/4/ ACT 194, SEC. 1 (C) STATES THAT AUXILIARY SERVICES SHALL BE
PROVIDED BY "EACH INTERMEDIATE UNIT."  THE INTERMEDIATE UNIT IS A LOCAL
ADMINISTRATIVE AGENCY WHICH OVERSEES AND ASSISTS SCHOOL DISTRICTS
WITHIN A PARTICULAR GEOGRAPHIC AREA.  SEE PA. STAT. ANN., TIT. 24, SEC.
9 - 951 TO 9 - 971 (SUPP. 1974 - 1975). 

LEO PFEFFER AND WILLAIM P. THORN ARGUED THE CAUSE AND FILED BRIEFS
FOR APPELLANTS. 

J. JUSTIN BLEWITT, JR., DEPUTY ATTORNEY GENREAL OF PENNSYLVANIA,
ARGUED THE CAUSE FOR APPELLEES PITTENGER ET AL. WITH HIM ON THE BRIEF
WAS ISRAEL PACKEL, ATTORNEY GENERAL.  WILLAIM BENTLEY BALL ARGUED THE
CAUSE FOR APPELLEES DIAZ ET AL. WITH HIM ON THE BRIEF WERE JOSEPH G.
SKELLY, JAMES E. GALLAGHER, JR., C. CLARK HODGSON, JR., AND WILLIAM D.
VALENTE.  HENRY T. REATH ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLEES CHESIK ET AL. 

THEODORE R. MANN, PAUL S. BERGER, ARNOLD FORSTER, SAMUEL ABINOVE,
HENTY N. RAPAPORT, DAVID RUBIN, AND JOSEPH B. ROGISON FILED A BRIEF FOR
THE AMERICAN ASSOCIATION OF SCHOOL ADMINISTRATORS ET AL. AS AMICI
CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY STUART D.
HUBBELL FOR THE COUNCIL FOR AMERICAN PRIVATE EDUCATION, AND BY HOWARD
GOULD FOR THE NATIONAL AUDIO-VISUAL ASSOCIATION, INC.
..END :




















UNITED STATES V. RELIABLE TRANSFER CO., 421 U.S. 397 


       UNITED STATES V. RELIABLE TRANSFER CO., INC.

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 74 - 363.  ARGUED MARCH 19, 1975--DECIDED MAY 19, 1975;

           497 F.2D 1036, VACTED AND REMANDED. 


    THE ADMIRALTY RULE OF DIVIDED DAMAGES, WHEREBY THE PROPERTY

  DAMAGE IN A MARITIME COLLISION OR STANDING IS EQUALLY DIVIDED

  WHENEVER TWO OR MORE PARTIES INVOLVED ARE FOUND TO BE GUILTY OF

  CONTRIBUTORY FAULT, REGARDLESS OF THE RELATIVE DEGREE OF THEIR

  FAULT, HELD REPLACED BY A RULE REQUIRING LIABILITY FOR SUCH

  DAMAGE TO BE ALLOCATED AMONG THE PARTIES PROPORTIONATELY TO THE

  COMPARATIVE DEGREE OF THEIR FAULT, AND TO BE ALLOCATED EQUALLY

  ONLY WHEN THE PARTIES ARE EQUALLY AT FAULT OR WHEN IT IS NOT

  POSSIBLE FAIRLY TO MEASURE THE COMPARATIVE DEGREE OF THEIR

  FAULT.  PP. 401 - 411. 

    STEWART, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

MORE THAN A CENTURY AGO, IN THE SCHOONER CATHARINE V. DICKINSON, 17
HOW.  170, THIS COURT ESTABLISHED IN OUR ADMIRALTY LAW THE RULE OF
DIVIDED DAMAGES.  THAT RULE, MOST COMMONLY APPLIED IN CASES OF
COLLISION BETWEEN TWO VESSELS, REQUIRES THE EQUAL DIVISION OF PROPERTY
DAMAGE WHENEVER BOTH PARTIES ARE FOUND TO BE GUILTY OF CONTIRBUITONG
FAULT, WHATEVER THE RELATIVE DEGREE OF THEIR FAULT MAY HAVE BEEN.  THE
COURTS OF EVERY MAJOR MARITIME NATION EXCEPT OURS HAVE LONG SINCE
ABANDONED THAT RULE, AND NOW ASSESS DAMAGES IN SUCH CASES ON THE BASIS
OF PROPORTIONATE FAULT WHEN SUCH AN ALLOCATION CAN REASONABLY BE MADE. 
IN THE PRESENT CASE WE ARE CALLED UPON TO DECIDE WHETHER THIS COUNTRY'S
ADMIRALTY RULE OF DIVIDED DAMAGES SHOULD BE REPLACED BY A RULE
REQUIRING, WHEN POSSIBLE, THE ALLOCATION OF LIABILITY FOR DAMAGES IN
PROPORTION TO THE RELATIVE FAULT OF EACH PARTY. 

      I 

ON A CLEAR BUT WINDY DECEMBER NIGHT IN 1968, THE MARY V. WHALEN, A
COASTAL TANKER OWNED BY THE RESPONDENT RELIABLE TRANSFER CO., EMBARKED
FROM CONSTABLE HOOK, N.J., FOR ISLAND PARK, N.Y., WITH A LOAD OF FUEL
OIL.  THE VOYAGE ENDED, INSTEAD, WITH THE VESSEL STRANDED ON A SAND BAR
OFF ROCKAWAY POINT OUTSIDE NEW YORK HARBOR. 

THE WHALEN'S COURSE LED ACROSS THE MOUTH OF ROCKAWAY INLET, A NARROW
BODY OF WATER THAT LIES BETWEEN A BREAKWATER TO THE SOUTHEAST AND THE
SHORELINE OF CONEY ISLAND TO THE NORTHWEST.  THE BREAKWATER IS
ORDINARILY MARKED AT ITS SOUTHERMOST POINT BY A FLASHING LIGHT
MAINTAINED BY THE COAST GUARD.  AS, HOWEVER, THE WHALEN'S CAPTAIN AND
DECKHAND OBSERVED WHILE THE VESSEL WAS PROCEEDING SOUTHWARDLY ACROSS
THE INLET, THE LIGHT WAS NOT OPERATING THAT NIGHT.  AS THE WHALEN
APPROACHED ROCKAWAY POINT ABOUT HALF AN HOUR LATER, HER CAPTAIN
ATTEMPTED TO PASS A TUG WITH A BARGE IN TOW AHEAD, BUT, AFTER
DETERMINING THAT HE COULD NOT OVERTAKE THEM, DECIDED TO MAKE A 180
DEGREE TURN TO PASS ASTERN OF THE BARGE.  AT THIS TIME THE TIDE WAS AT
FLOOD, AND THE WAVES WHIPPED BY NORTHWEST WINDS OF GALE FORCE, WERE
EIGHT TO TEN FEET HIGH.  AFTER MAKING THE 180 DEGREE TURN AND PASSING
ASTERN OF THE BARGE, THE CAPTAIN HEADED THE WHALEN EASTWARDLY,
BELIEVING THAT THE VESSEL WAS THEN SOUTH OF THE BREAKWATER AND THAT HE
WAS HEADING HER FOR THE OPEN SEA.  HE WAS WRONG.  ABOUT A MINUTE LATER
THE LIGHT STRUCTURE ON THE SOUTHERN POINT OF THE BREAKWATER CAME INTO
VIEW.  TURNING TO AVOID ROCKS VISIBLE AHEAD, THE WHALEN RAN AGROUND IN
THE SAND 

THE RESPONDENT BROUGHT THIS ACTION AGAINST THE UNITED STATES IN
FEDERLA DISTRICT COURT, UNDER THE SUITS IN ADMIRALTY ACT, 41 STAT. 525,
46 U.S.C. SEC. 741 ET SEQ., AND THE FEDERAL TORT CLAMIS ACT, 28 U.S.C.
SEC. 1346 T SEQ., SEEKING TO RECOVER FOR DAMAGES TO THE WHALEN CASUED
BY THE STRANDING.  THE DISTRICT COURT FOUND THAT THE VESSEL'S GROUNDING
WAS CAUSED 25% BY THE FAILURE OF THE COAST GUARD TO MAINTAIN THE
BREAKWATER LIGHT AND 75% BY THE FAULT OF THE WHALEN, IN SO FINDING ON
THE ISSUE OF COMPARATIVE FAULT, THE COURT STATED: 

     " THE FAULT OF THE VESSEL WAS MORE EGREGIOUS THAN THE FAULT OF

  THE COAST GUARD.  ATTEMPTING TO NEGOTIATE A TURN TO THE EAST, IN

  THE NARROW SPACE BWTWEEN THE BELL BUOY NO. 4 AND THE SHOALS OF

ROCKAWAY POINT, THE CAPTAIN SET HIS COURSE WITHOUT KNOWING WHERE

  HE WAS.  OBVIOUSLY, HE WOULD NOT HAVE FOUND THE BREAKWATER LIGHT

  LOOMING DIRECTLY AHEAD OF HIM WITHIN A MINUTE AFTER HIS CHANGE OF

  COURSE, IF HE HAD NOT BEEN NORTH OF THE POINT WHERE HE BELIEVED

  HE WAS. 

     " EQUIPPED WITH LOOK-OUT, CHART, SEARCHLIGHT, RADIOTELEPHONE,

AND RADAR, HE MADE USE OF NOTHING EXCEPT HIS OWN GUESSWORK

 JUDGMENT.  AFTER ... TURNING IN A LOOP TOWARD THE NORTH SO AS TO

  PASS ASTERN OF THE TOW, HE SHOULD HAVE MADE SURE OF HIS POSITION

  BEFORE SETTING HIS NEW 73 DEGREE COURSE.  THE FACT THAT A

  NORTHWEST GALE BLOWING AT 45 KNOTS WITH EIGHT TO TEN FOOT SEAS

  MADE IT DIFFICULT TO SEE, EMPHASIZES THE NEED FOR CAUTION RATHER

  THAN EXCUSING A TURN INTO THE UNKNOWN...." 

THE COURT HELD, HOWEVER, THAT THE SETTLED ADMIRALTY RULE OF DIVIDED
DAMAGES REQUIRED EACH PARTY TO BEAR ONE-HALF OF THE DAMAGES TO THE
VESSEL.  /1/ 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED THIS JUDGMENT. 
497 F.2D 1036.  IT HELD THAT THE TRIAL COURT "WAS NOT CLEARLY ERRONEOUS
IN FINDING THAT THE NEGLIGENCE OF BOTH PARTIES, IN THE PROPORTIONS
STATED, CAUSED THE STRANDING."  ID., AT 1037 - 1038.  AND, ALTHOUGH
"MINDFUL OF THE CRITICISM OF THE EQUAL DIVISION OF DAMAGES RULE
AND...RECOGNIZING) THE FORCE OF THE ARGUMENT THAT IN THIS TYPE OF CASE
DIVISION OF DAMAGES IN PROPORTION TO THE DEGREE OF FAULT MAY BE MORE
EQUITABLE," ID., AT 1038, THE APPELLATE COURT FELT CONSTRAINED TO
ADHERE TO THE ESTABLISHED RULE AND "TO LEAVE DOCTRINAL DEVELOPMENT TO
THE SUPREME COURT OR TO AWAIT APPROPRIATE ACTION BY CONGRESS."  IBID. 

WE GRANTED CERTIORARI, 419 U.S. 1018, TO CONSIDER THE CONTINUED
VALIDITY OF THE DIVIDED DAMAGES RULE.  /2/

        II 

THE PRECISE ORIGINS OF THE DIVIDED DAMAGES RULE ARE SHROUDED IN THE
MISTS OF HISTORY.  /3/ IN ANY EVENT IT WAS NOT UNTIL EARLY IN THE 19TH
CENTURY THAT THE DIVIDED DAMAGES RULE AS WE KNOW IT EMERGED CLEARLY IN
BRITISH ADMIRALTY LAW.  IN 1815, IN THE WOODROP-SIMS, 2 DODS.  83, 165
ENG. REP. 1422, SIR WILLIAM SCOTT, LATER LORD STOWELL, CONSIDERED THE
VARIOUS CIRCUMSTANCES UNDER WHICH MARITIME COLLISIONS COULD OCCUR AND
STATED THAT DIVISION OF DAMAGES WAS APPROPRIATE IN THOSE CASES "WHERE
BOTH PARTIES ARE TO BLAME."  ID., AT 85, 165 ENG. REP., AT 1423.  IN
SUCH CASES THE TOTAL DAMAGES WERE TO BE "APPORTIONED BETWEEN" THE
PARTIES "AS HAVING BEEN OCCASIONED BY THE FAULT OF BOTH OF THEM." 
IBID.  NINE YEARS LATER THE DIVIDED DAMAGES RULE BECAME SETTLED IN
ENGLISH ADMIRALTY LAW WHEN THE HOUSE OF LORDS IN A MARITIME COLLISION
CASE WHERE BOTH SHIPS WERE AT FAULT REVERSED A DECISION OF A SCOTTISH
COURT THAT HAD APPORTIONED DAMAGES BY DEGREE OF BLAME, AND, RELYING ON
THE WOODROP-SIMS, ORDERED THAT THE DAMAGES BE DIVIDED EQUALLY.  HAY V.
LE NEVE, 2 SHAW H.L. 395. 

IT WAS AGAINST THIS BACKGROUND THAT IN 1855 THIS COURT ADOPTED THE
RULE OF EQUAL DIVISION OF DAMAGES IN THE SCHOONER CATHARINE V.
DICKINSON, 17 HOW.  170.  THE RULE WAS ADOPTED BECAUSE IT WAS THEN THE
PREVAILING RULE IN ENGLAND, BECAUSE IT HAD BECOME THE MAJORITY RULE IN
THE LOWER FEDERAL COURTS, AND BECAUSE IT SEEMED THE "MOST JUST AND
EQUITABLE, AND ... BEST (TENDED) TO INDUCE CARE AND VIGILANCE ON BOTH
SIDES, IN THE NAVIGAITION."  ID., AT 177 - 178.  THERE CAN BE NO
QUESTION THAT SUBSEQUENT HISTORY AND EXPERIENCE HAVE CONSPICUOUSLY
ERODED THE RULE'S FOUNDATIONS.  /4/ 

IT WAS TRUE AT THE TIME OF THE CATHARINE THAT THE DIVIDED DAMAGES
RULE WAS WELL ENTRENCHED IN ENGLISH LAW.  THE RULE WAS AN ANCIENT FORM
OF ROUGH JUSTICE, A MEANS OF APPORTIONING DAMAGES WHERE IT WAS
DIFFICULT TO MEASURE WHICH PARTY WAS MORE AT FAULT.  SEE 4 R. MARSDEN,
BRITISH SHIPPING LAWS, COLLISIONS AT SEA SEC. 119 - 147 (11TH ED.
1961); STARING, CONTRIBUTION AND DIVISION OF DAMAGES IN ADMIRALTY AND
MARITIME CASES, 45 CALIF. L. REV. 304, 305 - 310 (1957).  BUT ENGLAND
HAS LONG SINCE ABANDONED THE RULE /5/ AND NOW FOLLOWS THE BRUSSELS
COLLISION LIABILITY CONVENTION OF 1910 THAT PROVIDES FOR THE
APPORTIONMENT OF DAMAGES ON THE BASIS OF "DEGREE" OF FAULT WHENEVER IT
IS POSSIBLE TO DO SO.  /6/ INDEED, THE UNITED STATES IS NOW VIRTUALLY
ALONE AMONG THE WORLD'S MAJOR MARITIME NATIONS IN NOT ADHERING TO THE
CONVENTION WITH ITS RULE OF PROPORTUONAL FAULT /7/ --A FACT THAT
ENCOURAGES TRANSOCEANIC FORUM SHOPPING.  SEE G. GILMORE & C. BLACK, THE
LAW OF ADMIRALTY 529 (2D ED. 1975) (HEREINAFTER GILMORE & BLACK). 

WHILE THE LOWER FEDERAL COURTS ORIGINALLY ADHERED TO THE DIVIDED
DAMAGES RULE, THEY HAVE MORE RECENTLY FOLLOWED IT ONLY GRUDGINGLY,
TERMING IT "UNFAIR," /8/ ILLOGICAL," /9/ "ARBITRARY," "ARCHAIC AND
FREQUENTLY UNJUST."  /10/ JUDGE LEARNED HAND WAS A PARTICULARLY STERN
CRITIC OF THE RULE.  DISSENTING IN NATIONAL BULK CARRIERS V. UNITED
STATES, 193 F.2D 405, 410 (CA2), HE WROTE:  " AN EQUAL DIVISION (OF
DAMAGES) IN THIS CASE WOULD BE PLAINLY UNJUST; THEY OUGHT TO BE DIVIDED
IN SOME SUCH PROPORTION AS FIVE TO ONE.  AND SO THEY COULD BE BUT FOR
OUR OBSTINATE CLEAVING TO THE ANCIENT RULE WHICH HAS BEEN ABROGATED BY
NEARLY ALL CIVILIZED NATIONS."  AND JUDGE HAND HAD ALL BUT INVITED THIS
COURT TO OVERTURN THE RULE WHEN IN AN EARLIER OPINION FOR THE COURT OF
APPEALS FOR THE SECOND CIRCUIT, HE STATED THAT "WE HAVE NO POWER TO
DIVEST OURSELVES OF THIS VESTIGIAL RELIC; WE CAN ONLY GO SO FAR AS TO
CLOSE OUR EYES TO DOUBTFUL DELINQUENCIES."  ORIENTAL TRADING &
TRANSPORT CO. V. GULF OIL CORP., 173 F.2D 108, 111.  SOME COURTS, EVEN
BOLDER, HAVE SIMPLY IGNORED THE RULE.  SEE J. GRIFFIN, THE AMERICAN LAW
OF COLLISION 564 (1949); STARING, SUPRA, AT 341 - 342.  CF. THE
MARGARET, 30 F.2D 393 (CA3). 

IT IS NO LONGER APPARENT, IF IT EVER WAS, THAT THIS SOLOMONIC
DIVISION OF DAMAGES SERVES TO ACHIEVE EVEN ROUGH JUSTICE.  /11/ AN
EQUAL DIVISION OF DAMAGES IS A REASONABLY SATISFACTORY RESULT ONLY
WHERE EACH VESSEL'S FAULT IS APPROXIMATELY EQUAL AND EACH VESSEL THUS
ASSUMES A SHARE OF THE COLLISION DAMAGES IN PROPORTION TO ITS SHARE OF
THE BLAME, OR WHERE PROPORTIONATE DEGREES OF FAULT CANNOT BE MEASURED
AND DETERMINED ON A RATIONAL BASIS.  THE RULE PRODUCES PALPABLY UNFAIR
RESULTS IN EVERY OTHER CASE.  FOR EXAMPLE, WHERE ONE SHIP'S FAULT IN
CAUSING COLLISION IS RELATIVELY SLIGHT AND HER DAMAGES SMALL, AND WHERE
THE SECOND SHIP IS GROSSLY NEGLIGENT AND SUFFERS EXTENSIVE DAMAGE, THE
FIRST SHIP MUST STILL MAKE A SUBSTANTIAL PAYMENT TO THE SECOND.  " THUS
RESULT HARDLY COMMENDS ITSELF TO THE SENSE OF JUSTICE ANY MORE
APPEALINGLY THAN DOES THE COMMON LAW DOCTRINE OF CONTRIBUTORY
NEGLIGENCE ...."  GILMORE & BLACK 528. 

AND THE POTENTIAL UNFAIRNESS OF THE DIVISION IS MAGNIFIED BY THE
APPLICATION OF THE RULE OF THE PENNSYLVANIA, 19 WALL.  125, WHEREBY A
SHIP'S RELATIVELY MINOR STATUTORY VIOLATION WILL REQUIRE HER TO BEAR
HALF THE COLLISION DAMAGE UNLESS SHE CAN SATISFY THE HEAVY BURDEN OF
SHOWING "NOT MERELY THAT HER FAULT MIGHT NOT HAVE BEEN ONE OF THE
CAUSES, OR THAT IT PROBABLY WAS NOT, BUT THAT IT COULD NOT HAVE BEEN." 
ID., AT 136 (EMPHASIS ADDED).  SEE O/ Y FINLAYSON-FORSSA A/ B V. PAN
ATLANTIC S.S. CORP., 259 F.2D 11, 22 (CA5); THE NEW YORK MARINE NO. 10,
109 F.2D 564, 566 (CA2).  SEE ALSO GRIFFIN, SUPRA, SEC. 202. 

THE COURT HAS LONG IMPLICITLY RECOGNIZED THE PATENT HARSHNESS OF AN
EQUAL DIVISION OF DAMAGES IN THE FACE OF DISPARATE BLAME BY APPLYING
THE "MAJOR-MINOR" FAULT DOCTRINE TO FIND A GROSSLY NEGLIGENT PARTY
SOLELY AT FAULT.  /12/ GUT THIS ESCAPE VALVE, IN ADDITION TO BEING
INHERENTLY UNRELIABLE, SIMPLY REPLACES ONE UNFAIRNESS WITH ANOTHER. 
THAT A VESSEL IS PRIMARILY NEGLIGENT DOES NOT JUSTIFY ITS SHOULDERING
ALL RESPONSIBILITY, NOR EXCUSE THE SLIGHTLY NEGLIGENT VESSEL FROM
BEARING ANY LIABILITY AT ALL.  SEE TANK BARGE HYGRADE V. THE GATCO NEW
JERSEY, 250 F.2D 485, 488 (CA3).  THE PROBLEM REMAINS WHERE IT BEGAN--
WITH THE DIVIDED DAMAGES RULE: 

"(THE DOCTRINE THAT A COURT SHOULD NOT LOOK TOO JUEALOUSLY AT THE
NAVIGATION OF ONE VESSEL, WHEN THE FAULTS OF THE OTHER ARE GLARING, IS
IN THE NATURE OF A SOP TO CERBERUS.  IT IS NO DOUBT BETTER THAN
NOTHING; BUT IT IS INADEQUATE TO REACH THE HEART OF THE MATTER, AND
CONSTITUTES A CONSTANT TEMPTATION TO COURTS TO AVOID A DECISION ON THE
MERITS."  NATIONAL BULK CARRIERS V. UNITED STATES, 183 F.2D 405, 410
(CA2) (L. HAND, J., DISSENTING). 

THE DIVIDED DAMAGES RULES HAS BEEN SAID TO BE JUSTIFIED BY THE
DIFFICULTY OF DETERMINING COMPARATIVE DEGREES OF NEGLIGENCE WHEN BOTH
PARTIES ARE CONCEDLY GUILTY OF CONTRIBUTING FAULT.  THE MAX MORRIS, 137
U.S. 1, 12.  ALTHOUGH THERE IS SOME FORCE IN THIS ARGUMENT, IT CANNOT
JUSTIFY AN EQUAL DIVISION OF DAMAGES IN EVERY CASE OF COLLISION BASED
ON MUTUAL FAULT.  WHEN IT IS IMPOSSIBLE FAIRLY TO ALLOCATE DEGREES OF
FAULT, THE DIVISION OF DAMAGES EQUALLY BETWEEN WRONGDOING PARTIES IS AN
EQUITABLE SOLUTION.  BUT THE RULE IS UNNECESSARILY CRUDE AND
INEQUITABLE IN A CASE LIKE THIS ONE WHERE AN ALLOCATION OF DISPARATE
PROPORTIONAL FAULT HAS BEEN MADE.  POTENTIAL PROBLEMS OF PROOF IN SOME
CASES HARDLY REQUIRE ADHERENCE TO AN ARCHAIC AND UNFAIR RULE IN ALL
CASES.  EVERY OTHER MAJOR MARITIME NATION HAS EVIDENTLY BEEN ABLE TO
APPLY A RULE OF COMPARATIVE NEGLIGENCE WITHOUT SERIOUS PROBLEMS, SEE
MOLE & WILSON, A STUDY OF COMPARATIVE NEGLIGENCE, 17 CORN.  L. Q. 333,
346 (1932); IN RE ADAMS' PETITION, 125 F. SUPP. 110, 114 (SDNY), AFF'D,
237 F.2D 884 (CA2), AND IN OUR OWN ADMIRALTY LAW A RULE OF COMPARATIVE
NEGLIGENCE HAS LONG BEEN APPLIED WITH NO UNTOWARD DIFFICULTIES IN
PERSONAL INJURY ACTIONS.  SEE, E.G., POPE & TALBOT, INC. V. HAWN, 346
U.S. 406, 409.  SEE ALSO MERCHANT MARINE (JONES) ACT, 38 STAT. 1185, AS
AMENDED, 41 STAT. 1007, 46 U.S.C. SEC. 688; DEATH ON THE HIGH SEAS ACT,
41 STAT. 537, 46 U.S.C. SEC. 766. 

THE ARGUMENT HAS ALSO BEEN MADE THAT THE DIVIDED DAMAGES RULE
PROMOTES OUT-OF-COURT SETTLEMENTS, BECAUSE WHEN IT BECOMES APPARENT
THAT BOTH VESSELS ARE AT FAULT, BOTH PARTIES CAN READILY AGREE TO
DIVIDE THE DAMAGES--, THUS AVOIDING THE EXPENSE AND DELAY OF PROLONGED
LITIGATION AND THE CONCOMITANT BURDEN ON THE COURTS.  IT WOULD BE FAR
MORE DIFFICULT, IT IS ARGUED, FOR THE PARTIES TO AGREE ON WHO WAS MORE
AT FAULT AND TO APPORTION DAMAGES ACCORDINGLY.  BUT THE ARGUMENT IS
HARDLY PERSUASIVE.  FOR IF THE FAULT OF THE TWO PARTIES IS MARKEDLY
DISPROPORTIONATE, IT IS IN THE INTEREST OF THE SLIGHTLY NEGLIGENT PARTY
TO LITIGATE THE CONTROVERSY IN THE HOPE THAT THE MAJOR-MINOR FAULT RULE
MAY EVENTUALLY PERSUADE A COURT TO ABSOLVE IT OF ALL LIABILITY.  AND
IF, ON THE OTHER HAND, IT APPEARS AFTER A REALISTIC ASSESSMENT OF THE
SITUATION THAT THE FAULT OF BOTH PARTIES IS ROUGHLY EQUAL, THEN THERE
IS NO REASON WHY A RULE THAT APPORTIONS DAMAGES WOULD BE ANY LESS
LIKELY TO INDUCE A SETTLEMENT THAN A RULE THAT ALWAYS DIVIDES DAMAGES
EQUALLY.  EXPERIENCE WITH COMPARATIVE NEGLIGENCE IN THE PERSONAL INJURY
AREA TEACHES THAT A RULE OF FAIRNESS IN COURT WILL PRODUCE FAIR OUT-OF
COURT SETTLEMENTS.  /13/ BUT EVEN IF THIS ARGUMENT WERE MORE PERSUASIVE
THAN IT IS, IT COULD HARDLY BE ACCEPTED.  FOR, AT BOTTOM, IT ASKS US TO
CONTINUE THE OPERATION OF AN ARCHAIC RULE BECAUSE ITS FACILE
APPLICATION OUT OF COURT YIELDS QUICK, THOUGH INEGUITABLE, SETTLEMENTS,
AND RELIEVES THE COURTS OF SOME LITIGATION.  CONGESTION IN THE COURTS
CANNOT JUSTIFY A LEGAL RULE THAT PRODUCES UNJUST RESULTS IN LITIGATION
SIMPLY TO ENCOURAGE SPEEDY OUT-OF-COURT ACCOMMODATIONS. 

FINALLY, THE RESPONDENT SUGGESTS THAT THE CREATION OF A NEW RULE OF
DAMAGES IN MARITIME COLLISION CASES IS A TASK FOR CONGRESS AND NOT FOR
THIS COURT.  /14/ BUT THE JUDICIARY HAS TRADITIONALLY TAKEN THE LEAD IN
FORMULATING FLEXIBLE AND FAIR REMEDIES IN THE LAW MARITIME, AND "
CONGRESS HAS LARGELY LEFT TO THIS COURT THE RESPONSIBILITY FOR
FASHIONING THE CONTROLLING RULES OF ADMIRALTY LAW."  FITZGERALD V.
UNITED STATES LINES CO., 374 U.S. 16, 20.  SEE ALSO MORAGNE V. STATES
MARINE LINES, 398 U.S. 375, 405 N. 17; KERMAREC V. COMPAGNIE GENERALE
TRANSATLANTIQUE, 358 U.S. 625, 630 - 632.  NO STATUTORY OR JUDICIAL
PRECEPT PRECLUDES A CHANGE IN THE RULE OF DIVIDED DAMAGES, AND INDEED A
PROPORTIONAL FAULT RULE WOULD SIMPLY BRING RECOVERY FOR PROPERTY DAMAGE
IN MARITIME COLLISION CASES INTO LINE WITH THE RULE OF ADMIRALTY LAW
LONG SINCE ESTABLISHED BY COMGRESS FOR PERSONAL INJURY CASES.  SEE THE
JONES ACT, 46 U.S.C. SEC. 688.  /15/ 

AS THE AUTHORS OF A LEADING ADMIRALTY LAW TREATISE HAVE PUT THE
MATTER: 

"(THERE IS NO REASON WHY THE SUPREME COURT CANNOT AT THIS LATE DATE
'CONFESS ERROR' AND ADOPT THE PROPORTIONAL FAULT DOCTRINE WITHOUT
CONGRESSIONAL ACTION.  THE RESOLUTION TO FOLLOW THE DIVIDED DAMAGES
RULE, TAKEN 120 YEARS AGO, RESTED NOT ON OVERWHELMING AUTHORITY BUT ON
JUDGMENTS OF FACT AND OF FAIRNESS WHICH MAY HAVE BEEN TENABLE THEN BUT
ARE HARDLY SO TODAY.  NO 'VESTED RIGHTS,' IN THEORY OF FACT, HAVE
INTERVENED.  THE REGARD FOR 'SETTLED EXPECTATION' WHICH IS THE HEART
REASON OF ... STARE DECISIS ... CAN HAVE NO RELEVANCE IN RESPECT TO
SUCH A RULE; THE CONCEPT OF 'SETTLED EXPECTATION' WOULD BE REDUCED TO
AN ABSURDITY WERE IT TO BE APPLIED TO A RULE OF DAMAGES FOR NEGLIGENT
COLLISION.  THE ABROGATION OF THE RULE WOULD NOT, IT SEEMS, PRODUCE ANY
DISHARMONY WITH OTHER BRANCHES OF THE MARITIME LAW, GENERAL OR
STATUTORY."  GILMORE & BLACK 531 (FOOTNOTE OMITTED).  /16/ 

THE RULE OF DIVIDED DAMAGES IN ADMIRALTY HAS CONTINUED TO PREVAIL IN
THIS COUNTRY BY SHEER INERTIA RATHER THAN BY REASON OF ANY INTRINSIC
MERIT.  THE REASONS THAT ORIGINALLY LED TO THE COURT'S ADOPTION OF THE
RULE HAVE LONG SINCE DISAPPEARED.  THE RULE HAS BEEN REPEATEDLY
CRITICIZED BY EXPERIENCED FEDERAL JUDGES WHO HAVE CORRECTLY POINTED OUT
THAT THE RESULT IT WORKS HAS TOO OFTEN BEEN PRECISELY THE OPPOSITE OF
WHAT THE COURT SOUGHT TO ACHIEVE IN THE SCHOONER CATHARINE--THE "JUST
AND EQUITABLE" ALLOCATION OF DAMAGES.  AND WORLDWIDE EXPERIENCE HAS
TAUGHT THAT THAT GOAL CAN BE MORE NEARLY REALIZED BY A STANDARD THAT
ALLOCATES LIABILITY FOR DAMAGES ACCORDING TO COMPARATIVE FAULT WHENEVER
POSSIBLE. 

WE HOLD THAT WHEN TWO OR MORE PARTIES HAVE CONTRIBUTED BY THEIR
FAULT TO CAUSE PROPERTY DAMAGE IN A MARITIME COLLISION OR STRANDING,
LIABILITY FOR SUCH DAMAGE IS TO BE ALLOCATED AMONG THE PARTIES
PROPORTIONATELY TO THE COMPARATIVE DEGREE OF THEIR FAULT, AND THAT
LIABILITY FOR SUCH DAMAGES IS TO BE ALLOCATED EQUALLY ONLY WHEN THE
PARTIES ARE EQUALLY AT FAULT OR WHEN IT IS NOT POSSIBLE FAIRLY TO
MEASURE THE COMPARATIVE DEGREE OF THEIR FAULT. 

ACCORDINGLY, THE JUDGMENT BEFORE US IS VACATED AND THE CASE IS
REMANDED FOR FUTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

                       IT IS SO ORDERED. 

/1/ THE OPERATION OF THE RULE WAS DESCRIBED IN THE SAPPHIRE, 18
WALL.  51, 56:  " IT IS UNDOUBTEDLY THE RULE IN ADMIRALTY THAT WHERE
BOTH VESSELS ARE IN FAULT THE SUMS REPRESENTING THE DAMAGE SUSTAINED BY
EACH MUST BE ADDED TOGETHER AND THE AGGREGATE DIVIDED BETWEEN THE TWO. 
THIS IS IN EFFECT DEDUCTING THE LESSER FROM THE GREATER AND DIVIDING
THE REMAINDER.... IF ONE IN FAULT HAS SUSTAINED NO INJURY, IT IS LIABLE
FOR HALF THE DAMAGES SUSTAINED BY THE OTHER, THOUGH THAT OTHER WAS ALSO
IN FAULT." 

SIMILARLY, IN THE NORTH STAR, 106 U.S. 17, 22, THE RULE WAS THUS
STATED:  "(ACCORDING TO THE GENERAL MARITIME LAW, IN CASES OF COLLISION
OCCURRING BY THE FAULT OF BOTH PARTIES, THE ENTIRE DAMAGE TO BOTH SHIPS
IS ADDED TOGETHER IN ONE COMMON MASS AND EQUALLY DIVIDED TO THE OTHER
SUCH SUM AS IS NECESSARY TO EQUALIZE THE BURDEN." 

SEE ALSO, E.T., WHITE OAK TRANSPORTATION CO. V. BOSTON, CAPE COD &
NEW YORK CANAL CO., 258 U.S. 341; THE EUGENE F. MORGAN, 212 U.S. 466. 

IT HAS LONG BEEN SETTLED THAT THE DIVIDED DAMAGES RULE APPLIES NOT
ONLY IN CASES OF COLLISION BETWEEN TWO VESSELS, BUT ALSO IN CASES LIKE
THIS ONE WHERE A VESSEL PARTLY AT FAULT OF A NONVESSEL PARTY.  ATLEE V.
PACKET CO., 21 WALL.  389 (BARGE STRUCK PIER BECAUSE OF MUTUAL FAULT OF
BARGE AND OF PIER OWNER); WHITE OAK TRANSPORTATION CO. V. BOSTON, CAPE
COD & NEW YORK CANAL CO., SUPRA (STEAMSHIP RAN AGROUND IN CANAL BECAUSE
OF JOINT NEGLIGENCE OF STEAMSHIP AND CANAL COMPANY).  SEE ALSO G.
GILMORE & C. BLACK, THE LAW OF ADMIRALTY SEC. 7 - 17, PP. 522 - 523 (2D
ED. 1975). 

/2/ THE GOVERNMENT'S PETITION FOR CERTIORARI PRESENTED THE SINGLE
QUESTION WHETHER THE ADMIRALTY RULE OF EQUALLY DIVIDED DAMAGES SHOULD
BE REPLACED BY THE RULE OF DAMAGES IN PROPORTION TO FAULT.  THE
RESPONDENT DID NOT FILE A CROSS-PETITION FOR CERTIORARI, BUT IT NOW
ARGUES THAT THE GOVERNMENT WAS SOLELY AT FAULT AND REQUESTS AN INCREASE
OF THE JUDGMENT IN ITS FAVOR TO THE FULL AMOUNT OF ITS DAMAGES. 
HOWEVER, ABSENT A CROSS-PETITION FOR CERTIORARI, THE RESPONDENT MAY NOT
NOW CHALLENGE THE JUDGMENT OF THE COURT OF APPEALS TO ENLARGE ITS
RIGHTS THEREUNDER.  MORLEY CONSTR. CO. V. MARYLAND CASUALTY CO., 00
U.S. 185, 190; UNITED STATES V. AMERICAN RAILWAY EXPRESS CO., 465 U.S.
425, 435.  MOREOVER, EVEN IF IT COULD BE ARGUED THAT RESPONDENT'S
CHALLENGE OF THE FACTUAL FINDINGS COULD BE TAKEN AS AN ARGUMENT IN
SUPPORT OF THE JUDGMENT, SEE STERN, WHEN TO CROSS-APPEAL OR CROSS
PETITION--CERTAINTY OR CONFUSION?, 87 HARV. L.REV.  763, 774 (1974),
THE FINDINGS OF FACTS WITH RESPECT TO COMPARATIVE NEGLIGENCE WERE
CONCURRED IN BY BOTH THE DISTRICT COURT AND THE COURT OF APPEALS, AND
THE RESPONDENT COULD NOT IN THIS CASE MEET ITS HEAVY BURDEN UNDER THE
"TWO-COURT RULE."  GRAVER MFG. CO. V. LINDE CO., 336 U.S. 271, 275. 
SEE BERENYI V. IMMIGRATION DIRECTOR, 385 U.S. 630, 635. 

/3/ MOST COMMENTATIORS HAVE TRACED THE RULE BACK TO ARTICLE XIV OF
THE LAS OF OLERON, PROMULGATED ABOURT A. D. 1150, WHICH PROVIDED THAT
IN CASES OF COLLISION BETWEEN A SHIP UNDER WAY AND ANOTHER AT ANCHOR,
THE DAMAGES WOULD BE DIVIDED EQUALLY BETWEEN THE OWNERS OF THE TWO
VESSELS, SO LONG AS THE CAPTAIN AND CREW OF THE SHIP UNDER WAY SWORE
UNDER OATH THAT THE COLLISION WAS ACCIDENTAL.  SEE, E.G., 4 R. MARSDEN,
BRITISH SHIPPING LAWS, COLLISIONS AT SEA SEC. 119 (11TH ED. 1961).  SEE
ALSO STARING, CONTRIBUTION AND DIVISION OF DAMAGES IN ADMIRALTY AND
MARITIME CASES, 45 CALIF. L.REV.  304 (1957). 

OTHER MARITIME NATIONS ENACTED PROVISIONS SIMILAR TO ARTICLE XIV
DURING THE SAME PERIOD, WITH SLIGHT VARIATIONS IN THE SCOPE OF THE RULE
AND THE PRINCIPLE OF DIVISION.  MARSDEN, SUPRA, SEC. 119 - 125.  " THE
PRINCIPLE ... UNDERLYING THE RULE SEEMS TO HAVE BEEN THAT COLLISION WAS
A PERIL OF THE SEA--A COMMON MISFORTUNE TO BE BORNE BY ALL PARTIES,
EITHER EQUALLY OR RATEABLY ACCORDING TO THEIR INTERESTS AT RISK."  ID.,
SEC. 140. 

/4/ THE COURT HAS ACKNOWLEDGED THE CONTINUED EXISTENCE OF THE
DIVIDED DAMAGES RULE IN AT LEAST TWO RECENT CASES.  SEE WEYERHAEUSER S.
S. CO. V. UNITED STATES, 372 U.S. 597, 603; HALCYON LINES V. HAENN SHIP
CEILING & REFITTING CORP., 342 U.S. 282, 284.  BUT IN NEITHER CASE DID
THE COURT HAVE OCCASION TO RE-EXAMINE THE RULE OR TO APPRAISE THE
VALIDITY OF ITS UNDERPINNINGS OR THE PROPRIETY OF ITS PRESENT
APPLICATION.  THE COURT GRANTED CERTIORARI IN UNION OIL CO. V. THE SAN
JACINTO, 409 U.S. 140, TO RECONSIDER THE DIVIDED DAMAGES RULE, BUT DID
NOT REACH THE ISSUE BECAUSE OF OUR CONCLUSION THAT ONE OF THE VESSELS
INVOLVED IN THA T CASE WAS TOTALLY FREE OF CONTRIBUTING FAULT. 

/5/ MARITIME CONVENTIONS ACT, 1911, 1 & 2 GEO. 5, C. 57, SEC.  1. 

/6/ ARTICLE 4 OF THE CONVENTION PROVIDES IN PART:  " IF TWO OR MORE
VESSELS ARE IN FAULT THE LIABILITY OF EACH VESSEL SHALL BE IN
PROPORTION TO THE DEGREE OF THE FAULTS RESPECTIVELY COMMITTED. 
PROVIDED THAT IF, HAVING REGARD TO THE CIRCUMSTANCES, IT IS NOT
POSSIBLE TO ESTABLISH THE DEGREE OF THE RESPECTIVE FAULTS, OR IF IT
APPEARS THAT THE FAULTS ARE EQUAL, THE LIABILITY SHALL BE APPORTIONED
EQUALLY." 

/7/ WE ARE INFORMED BY THE GOVERNMENT THAT AMONG THE JURISDICTIONS
THAT HAVE RATIFIED OR ADHERE TO THE BRUSSELS CONVENTION ON COLLISION
LIABILITY ARE:  ARGENTINA, AUSTRALIA, AUSTRIA, BELGIUM, BRAZIL, CANADA,
DENMARK, EGYPT, FINLAND, FRANCE, GERMANY, GREAT BRITAIN, GREECE, HAITI,
HUNGARY, ICELAND, INDIA, IRELAND, ITALY, JAPAN, MEXICO, NEW ZEALAND,
NETHERLANDS, NICARAGUA, NORWAY, POLAND, PORTUGAL, ROMANIA, SWEDEN,
SWITZERLAND, TURKEY, U.S.S.R., URUGUAY, AND YUGOSLAVIA.  SEE 6 A.
KNAUTH & C. KNAUTH, BENEDICT ON ADMIRALTY 38 - 39 (7TH ED. 1969).  SEE
ALSO J. GRIFFIN, THE AMERICAN LAW OF COLLISION 857 (1949); STARTING,
SUPRA, N. 3, AT 340 - 341; TANK BARGE HAYGRADE V. THE GATCO NEW JERSEY,
250 F.2D 485, 488 (CA3). 

/8/ AHLGREN V. RED STAR TOWING & TRANSP.  CO., 214 F.2D 618, 620
(CA2). 

/9/ MARINE FUEL TRANSFER CORP. V. THE RUTH, 231 F.2D 319, 321
(CA2). 

/10/ TANK BARGE HYGRADE V. THE BATCO NEW JERSEY, SUPRA, AT 488.  SEE
ALSO MYSTIC S.S. CORP. V. M/ S ANTONIO FERRAZ, 498 F.ID 538, 539 N. 1
(CA2); PETITION OF OSKAR TIEDEMANN & CO., 259 F.2D 237, 241 - 242
(CA3); IN RE ADAMS' PETITION, 237 F.2D 884, 887 (CA2); LUCKENBACH S.S.
CO. V. UNITED STATES, 157 F.2D 250, 252 (CA2). 

/11/ IT IS DIFFICULT TO IMAGINE ANY MANNER IN WHICH THE DIVIDED
DAMAGES RULE WOULD BE MORE LIKELY TO "INDUCE CARE AND VIGILANCE" THAN A
COMPARATIVE NEGLIGENCE RULE THAT ALSO PENALIZES WRONGDOING, BUT IN
PROPORTION TO MEASURE OF FAULT.  A RULE THAT DIVIDES DAMAGES BY DEGREE
OF FAULT WOULD SEEM BETTER DESIGNED TO INDUCE CARE THAN THE RULE OF
EQUALLY DIVIDED DAMAGES, BECAUSE IT IMPOSES THE STRONGEST DETERRENT
UPON THE WRONGFUL BEHAVIOR THAT IS MOST LIKELY TO HARM OTHERS. 

/12/ SEE, E.G., THE CITY OF NEW YORK, 147 U.S. 72, 85:  " WHERE
FAULT ON THE PART OF ONE VESSEL IS ESTABLISHED BY UNCONTRADICTED
TESTIMONY, AND SUCH FAULT IS, OF ITSELF, SUFFICIENT TO ACCOUNT FOR THE
DISASTER, IT IS NOT ENOUGH FOR SUCH VESSEL TO RAISE A DOUBT WITH REGARD
TO THE MANAGEMENT OF THE OTHER VESSEL.  THERE IS SOME PRESUMPTION AT
LEAST ADVERSE TO ITS CLAIM, AND ANY REASONABLE DOUBT WITH REGARD TO THE
PROPRIETY OF THE CONDUCT OF SUCH OTHER VESSEL SHOULD BE RESOLVED IN ITS
FAVOR."  SEE ALSO THE VICTORY & THE PLYMOTHIAN, 168 U.S. 410; THE
UMBRIA, 166 U.S. 404; THE OREGON, 185 U.S. 186; THE LUDVIG HOLBERG, 157
U.S. 60. 

/13/ THE RULE OF COMPARATIVE NEGLIGENCE APPLICABLE TO PERSONAL
INJURY ACTIONS IN OUR MARITIME LAW, SEE THE JONES ACT, 46 U.S.C. SEC.
688; DEATH ON THE HIGH SEAS ACT, 46 U.S.C. SEC. 766, DOES NOT APPEAR TO
DISCOURAGE THE NEGOTIATION OF SETTLEMENTS IN SUCH LITIGATION.  IT HAS
BEEN REPORTED, FOR EXAMPLE, THAT OF THE MARINE PERSONAL INJURY CASES
INVOLVING A FEDERAL QUESTION THAT WERE TERMINATED IN FISCAL YEAR 1974,
ONLY 9.6% EVER REACHED TRIAL.  1974 PROCEEDINGS OF THE JUDICIAL
CONFERENCE OF THE UNITED STATES AND ANNUAL REPORT OF THE DIRECTOR OF
THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, TABLE C4, P.
416. 

/14/ THE RESPONDENT ALSO RELIES ON THE FACT THAT THE SENATE HAS
TWICE FAILED TO RATIFY THE BRUSSELS CONVENTION WITH ITS PROPORTIONAL
FAULT RULE.  IT IS URGED THAT THIS INACTION INDICATES "GRAVE DOUBT" IN
CONGRESS THAT REJECTION OF THE DIVIDED DAMAGES RULE WILL FURTHER
JUSTICE.  BUT EVEN IF WE COULD FIND GUIDANCE IN SUCH "NEGATIVE
LEGISLATION," MORAGNE V. STATES MARINE LINES, 398 U.S. 375, 405 N. 17,
IT APPEARS THAT THE SENATE TOOK NO ACTION WITH RESPECT TO THE
CONVENTION, NOT BECAUSE OF OPPOSITION TO A PROPORTIONAL FAULT RULE, BUT
BECAUSE OF THE CONVENTION'S POOR TRANSLATION ADN THE OPPOSITION OF
CARGO INTERESTS TO THE PROVISION WHICH WOULD PREVENT CARGO FROM
RECOVERING IN FULL FROM THE NONCARRYING VESSEL BY ELIMINATING JOINT AND
SEVERAL LIABILITY OF VESSELS FOR CARGO DAMAGE.  SEE H. BAER, ADMIRALTY
LAW OF THE SUPREME COURT 414 - 415 (2D ED. 1969); STARING, SUPRA, N. 3,
AT 343.  SEE ALSO COMMENT, 64 YALE L. J. 878 (1955). 

/15/ THIS COURT, IN OTHER APPROPRIATE CONTEXTS, HAS NOT HESITATED TO
OVERRULE AN EARLIER DECISION AND SETTLE A MATTER OF CONTINUING CONCERN,
EVEN THOUGH RELIEF MIGHT HAVE BEEN OBTAINED BY LEGISLATION.  SEE BURNET
V. CORONADO OIL & GAS CO., 285 U.S. 393, 406 N. 1 (BRANDEIS, J.,
DISSENTING) (COLLECTING CASES).     /16/ SEE ALSO DONOVAN & RAY, MUTUAL
FAULT--HALF-DAMAGE RULE--A CRITICAL ANALYSIS, 41 INS. COUN.  J. 395
(1974); ALLBRITTON, DIVISION OF DAMAGES IN ADMIRALTY--A RISING TIDE OF
CONFUSION, 2 J. OF MARITIME LAW AND COMMERCE 323 (1971); JACKSON, THE
ARCHAIC RULE OF DIVIDING DAMAGES IN MARINE COLLISIONS, 19 ALA. L. REV.
263 (1967); STARING, SUPRA, N. 3, AT 304; MOLE & WILSON, A STUDY OF
COMPARATIVE NEGLIGENCE, 17 CORN.  L. Q. 333 (1932); AND HUGER, THE
PROPORTIONAL DAMAGE RULE IN COLLISIONS AT SEA, 13 CORN.  L. Q. 531
(1928).     JOHN P. RUPP ARGUED THE CAUSE FOR THE UNITED STATES PRO HAC
VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL HILLS, WILLIAM KANTER, AND RICHARD A. OLDERMAN. 

COPAL MINTZ ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WAS HERBERT B. HALBERG. 
..END :












SECURITIES INVESTOR PROTECTION V. BARBOUR, 421 U.S. 412 


       SECURITIES INVESTOR PROTECTION CORP. V. BARBOUR ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 2055.  ARGUED MARCH 17 - 18, 1975--DECIDED MAY 19,

 1975; 496 F.2D 145, REVERSED AND REMANDED. 


    PETITIONER SECURITIES INVESTOR PROTECTION CORP. (SIPC) WAS

  ESTABLISHED BY CONGRESS UNDER THE SECURITIES INVESTOR PROTECTION

  ACT OF 1970 (SIPA) AS A NONPROFIT MEMBERSHIP CORPORATION, TO

  PROVIDE, INTER ALIA, FINANCIAL RELIEF TO THE CUSTOMERS OF FAILING

  BROKER-DEALERS WITH WHOM THE CUSTOMERS HAD LEFT CASH OR

  SECURITIES ON DEPOSIT.  THE SIPA CREATES PROCEDURES FOR THE

  ORDERLY LIQUIDATION OF FINANCIALLY TROUBLED MEMBER FIRMS UNDER

  WHICH SIPC IS REQUIRED BY ASSESSING MEMBERS TO MAINTAIN A FUND

  FOR CUSTOMER PROTECTION.  SIPC MAY FILE AN APPLICATION WITH A

  COURT FOR DECREE INITIATING LIQUIDATION PROCEEDINGS IF IT

  DETERMINES THAT A MEMBER HAS FAILED OR IS IN DANGER OF FAILING TO

  MEET ITS OBLIGATIONS TO CUSTOMERS AND THAT ANY ONE OF FIVE

  SPECIFIED CONDITIONS INDICATING FINANCIAL DIFFICULTY EXIST, AND

  THE FILING OF THE APPLICATION VESTS THE COURT WITH EXCLUSIVE

  JURISDICTION OVER THE MEMBER AND ITS PROPERTY.  IF THE COURT

  FINDS THE EXISTENCE OF A SPECIFIED CONDITION, IT MUST GRANT THE

  APPLICATION, ISSUE THE DECREE, AND APPOINT THE SIPC'S DESIGNEE AS

  TRUSTEE TO LIQUIDATE THE BUSINESS, AND THE SIPC IS OBLIGATED, IF

  NECESSARY, TO ADVANCE FUNDS TO MEET CERTAIN CUSTOMER CLAIMS.  THE

 SECURITIES AND EXCHANGE COMMISSION (SEC) IS GIVEN "PLENARY

  AUTHORITY" TO SUPERVISE THE SIPC AND IS SPECIFICALLY AUTHORIZED

  TO APPLY TO A DISTRICT COURT FOR AN ORDER REQUIRING THE SIPC TO

  DISCHARGE ITS STATUTORY OBLIGATIONS.  THIS ACTION WAS BROUGHT BY

  RESPONDENT RECEIVER APPOINTED TO WIND UP THE AFFAIRS OF GUARANTY

  BOND, AN INSOLVENT REGISTERED BROKER-DEALER, TO COMPEL THE SIPC

  TO EXERCISE ITS STATUTORY AUTHORITY FOR THE BENEFIT OF GUARANTY

  BOND'S CUSTOMERS.  THE DISTRICT COURT DENIED RELIEF.  THE COURT

OF APPEALS REVERSED.  HELD:  COUTOMERS OF FAILING BROKER-DEALERS

  HAVE NO IMPLIED RIGHT OF ACTION UNDER THE SIPA TO COMPEL THE SIPC

  TO ACT FOR THEIR BENEFIT, THE SEC'S STATUTORY AUTHORITY TO COMPEL

  THE SIPC TO DISCHARGE ITS OBLIGATIONS BEING THE EXCLUSIVE MEANS

  BY WHICH THE SIPC CAN BE FORCED TO ACT.  PP. 418 - 425. 

     (A) THE EXPRESS STATUTORY PROVISION FOR ONE FORM OF PROCEEDING

  ORDINARILY IMPLIES THAT NO OTHER ENFORCEMENT MEANS WAS INTENDED

  BY THE LEGISLATURE, AND HERE THE SIPA'S LEGISLATIVE HISTORY WAS

ENTIRELY CONSONANT WITH THE IMPLICATION OF THE STATUTORY LANGUAGE

  THAT NO PRIVATE RIGHT OF ACTION WAS INTENDED.  CF. PASSENGER

  CORP. V. PASSENGERS ASSN., 414 U.S. 453.  PP. 418 - 420. 

     (B) THE OVERALL STRUCTURE AND PURPOSE OF THE SIPC SCHEME ARE

  INCOMPATIABLE WITH AN IMPLIED PRIVATE RIGHT OF ACTION, WHICH

  MIGHT WELL PRECIPITATE LIQUIDATIONS THAT THE SIPC, WHICH TREATS

  THAT APPROACH AS A LAST RESORT, MIGHT BE ABLE TO AVOID.  PP. 420

  - 423. 

  (C) THE SIPA CONTAINS NO STANDARDS OF CONDUCT THAT A PRIVATE

  ACTION COULD IMPLEMENT.  J. I. CASE CO. V. BORAK, 377 U.S. 426;

  ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544, DISTINGUSIHED. 

  PP. 423 - 425. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BERGER, C. J., AND BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, AND

REHNQUIST, JJ., JOINED.  DOUGLAS, J., DISSENTED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE SECURITIES INVESTOR PROTECTION CORP. (SIPC) WAS ESTABLISHED BY
CONGRESS AS A NONPROFIT MEMBERSHIP CORPORATION FOR THE CUSTOMERS OF
FAILING BROKER-DEALERS WITH WHOM THEY HAD LEFT CASH OR SECURITIES ON
DEPOSIT.  THE QUESTION PRESENTED BY THIS CASE IS WHETHER SUCH CUSTOMERS
HAVE AN IMPLIED PRIVATE RIGHT OF ACTION UNDER THE SECURITIES INVESTOR
PROTECTION ACT OF 1970 (SIPA), 84 STAT. 1636, 15 U.S.C. SEC. 78AAA ET
SEQ., TO COMPEL THE SIPC TO EXERCISE ITS STATUTORY AUTHORITY FOR THEIR
BENEFIT. 

     I 

IN DECEMBER 1970 THE SECURITIES AND EXCHANGE COMMISSION (SEC) FILED
A COMPLAINT IN DISTRICT COURT AGAINST GUARANTY BOND AND SECURITIES
CORP., A REGISTERED BROKER-DEALER, TO ENJOIN CONTINUED VIOLATION OF THE
COMMISSION'S NET CAPITAL AND OTHER RULES.  ON JANUARY 6, 1971, THE
DISTRICT COURT ISSUED A PRELIMINARY INJUNCTION, AND ON JANUARY 29 IT
GRANTED THE COMMISSION'S MOTION FOR APPOINTMENT OF A RECEIVER TO WIND
UP THE AFFAIRS OF GUARANTY BOND.  JAMES C. BARBOUR (HEREAFTER
RESPONDENT) WAS APPOINTED RECEIVER. 

ON APRIL 6, 1972, RESPONDENT, ALLEGING THAT CUSTOMERS OF GUARANTY
BOND WOULD SUSTAIN A LOSS AT LEAST EQUAL TO THE COSTS OF ADMINISTERING
THE RECEIVERSHIP, OBTAINED FROM THE COURT AN ORDER DIRECTING THE SEC
AND SIPC TO SHOW CAUSE "WHY THE REMEDIES AFFORDED BY THE (SIPA) SHOULD
NOT BE MADE AVAILABLE IN THIS PROCEEDING."  IN ITS ANSWER THE SEC TOOK
THE POSITION THAT RESPONDENT HAD NOT DEMONSTRATED THAT GUARANTY'S
CUSTOMERS WOULD IN FACT SUSTAIN ANY LOSS SINCE IT APPEARED THAT THE
RECEIVER WOULD HAVE A CAUSE OF ACTION FOR DAMAGES OR RESTITUTION
AGAINST GUARANTY'S PARENT COMPANY AND PRINCIPALS.  THE SIPC, ON THE
OTHER HAND, CHALLENGED THE RECEIVER'S STANDING TO MAINTAIN AN ACTION TO
COMPEL ITS INTERVENTION AND, IN DIRECT OPPOSITION TO THE POSITION OF
THE SEC, ARGUED THAT GUARANTY'S INSOLVENCY PRIOR TO THE DECEMBER 30,
1970, DATE ON WHICH THE SIPA TOOK EFFECT MEANT THAT APPLICATION OF THE
ACT TO THIS CASE WOULD GIVE IT AN UNLAWFUL RETROACTIVE EFFECT. 

THE DISTRICT COURT UPHELD THE RECEIVER'S RIGHT OF ACTION, BUT DENIED
RELIEF ON THE GROUND THAT GUARANTY'S HOPELESS INSOLVENCY PRIOR TO THE
EFFECTIVE DATE OF THE SIPA RENDERED THE ACT INAPPLICABLE.  THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT REVERSED.  SINCE GUARANTY HAD CONDUCTED
101 TRANSACTIONS AFTER DECEMBER 30, AND THE SEC DID NOT MOVE TO PREVENT
ITS CARRYING ON BUSINESS AS A BROKER-DEALER UNTIL JANUARY 6, IT HELD
THAT GUARANTY QUALIFIED AS A BROKER-DEALER ON THE EFFECTIVE DATE OF THE
ACT.  THE COURT THEN REJECTED THE SIPC'S ARGUMENT THAT THE PROVISION
FOR SEC ENFORCEMENT ACTIONS TO COMPEL THE SIPC TO PERFORM ITS FUNCTIONS
WAS MEANT TO BE EXCLUSIVE OF SUCH ACTIONS BY PROTECTED CUSTOMERS OR
THEIR REPRESENTATIVE, AND REMANDED THE CASE FOR FURTHER PROCEEDINGS. 
WE GRANTED CERTIORARI, LIMITED TO THE QUESTIONS WHETHER CUSTOMERS HAVE
AN IMPLIED RIGHT OF ACTION TO COMPEL THE SIPC TO ACT AND, IF SO,
WHETHER A RECEIVER HAS STANDING TO MAINTAIN IT.  419 U.S. 894 (1974). 
SINCE WE NOW REVERSE THE COURT OF APPEALS ON THE GROUND THAT NO IMPLIED
RIGHT OF ACTION EXISTS, WE DO NOT ADDRESS THE SECOND QUESTION. 

        II 

FOLLOWING A PERIOD OF GREAT EXPANSION IN THE 1960'S, THE SECURITIES
INDUSTRY EXPERIENCED A BUSINESS CONTRACTION THAT LED TO THE FAILURE OR
INSTABILITY NUMBER OF BROKERAGE FIRMS.  CUSTOMERS OF FAILED FIRMS FOUND
THEIR CASH AND SECURITIES ON DEPOSIT EITHER DISSIPATED OR TIED UP IN
LEGTHY BANKRUPTCY PROCEEDINGS.  IN ADDITION TO ITS DISASTROUS EFFECTS
ON CUSTOMER ASSESTS AND INVESTOR CONFIDENCE, THIS SITUATION ALSO
THREATENED A "DOMINO EFFECT" INVOLVING OTHERWISE SOLVENT BROKERS THAT
HAD SUBSTANTIAL OPEN TRANSACTIONS WITH FIRMS THAT FAILED.  CONGRESS
ENACTED THE SIPA TO ARREST THIS PROCESS, RESTORE THE FINANCIAL
RESPONSIBILITY REQUIREMENTS FOR REGISTERED BROKERS AND DEALERS.  S.
REP. NO. 91 - 1218, PP. 2 - 4 (1970); H. R. REP. NO. 91 - 1613, PP. 2 -
4 (1970). 

THE ACT APPORTIONS RESPONSIBILITY FOR THESE TASKS AMONG THE SEC, THE
SECURITIES INDUSTRY SELF-REGULATORY ORGANIZATIONS, AND THE SIPC, A
NONPROFIT, PRIVATE MEMBERSHIP CORPORATION TO WHICH MOST REGISTERED
BROKERS AND DEALERS ARE REQUIRED TO BELONG.  15 U.S.C. SEC. 78CC.  MOST
IMPORTANT FOR PRESENT PURPOSES, THE ACT CREATES A NEW FORM OF
LIQUIDATION PROCEEDING, APPLICABLE ONLY TO MEMBER FIRMS, DESIGNED TO
ACCOMPLISH THE COMPLETION OF OPEN TRANSACTIONS AND THE SPEEDY RETURN OF
MOST CUSTOMER PROPERTY. 

TO THIS END, THE SIPC IS REQUIRED TO ESTABLISH AND MAINTAIN A FUND
FOR CUSTOMER PROTECTION BY LAYING ASSESSMENTS ON THE ANNUAL GROSS
REVENUES OF ITS MEMBERS.  THE SEC AND THE SECURITIES INDUSTRY SELF
REGULATORY ORGANIZATIONS ARE REQUIRED TO NOTIFY THE SIPC WHENEVER IT
APPEARS THAT A MEMBER IS IN OR APPROACHING FINANCIAL DIFFICULTY.  IF
THE SIPC DETERMINES THAT A MEMBER HAS FAILED OR IS IN DANGER OF FAILING
TO MEET ITS OBLIGATIONS TO CUSTOMERS, AND FINDS ANY ONE OF FIVE
SPECIFIED CONDITIONS SUGGESTIVE OF FINANCIAL IRRESPONSIBILITY, THEN IT
"MAY APPLY TO ANY COURT OF COMPETENT JURISDICTION . . . FOR A DECREE
ADJUDICATING THAT CUSTOMERS OF SUCH MEMBER ARE IN NEED OF THE
PROTECTION PROVIDED BY (THE ACT)."  SEC.  78EEEA)(2). 

THE MERE FILING OF AN SIPC APPLICATION GIVES THE COURT IN WHICH IT
IS FILED EXCLUSIVE JURISDICTION OVER THE COURT TO STAY "ANY PENDING
BANKRUPTCY, MORTGAGE FORECLOSURE, EQUITY RECEIVERSHIP, OR OTHER
PROCEEDING TO REORGANIZE, CONSERVE, OR LIQUIDATE THE (MEMBER) OR ITS
PROPERTY AND ANY OTHER SUIT AGAINST ANY RECEIVER, CONSERVATOR, OR
TRUSTEE OF THE (MEMBER) OR ITS PROPERTY."  SEC.  78EEEB) (2).  IF THE
SEC HAS PENDING ANY ACTION AGAINST THE MEMBER, IT MAY, WITH THE
COMMISSION'S CONSENT, BE COMBINED WITH THE SIPC PROCEEDING.  IF NO SUCH
ACTION IS PENDING, THE SEC MAY INTERVENE AS A PARTY TO THE SIPC
PROCEEDING. 

IF THE COURT FINDS ANY OF THE FIVE CONDITIONS ON WHICH AN SIPC
APPLICATION MAY BE BASED, IT MUST GRANT THE APPLICATION AND ISSUE THE
DECREE, AND APPOINT AS TRUSTEE FOR THE LIQUIDATION OF THE BUSINESS AND
AS ATTORNEY FOR THE TRUSTEE, "SUCH PERSONS AS SIPC SHALL SPECIFY." 
SEC. 78EEE (B)(1), (3). 

THE TRUSTEE IS EMPOWERED AND DIRECTED BY THE ACT TO RETURN CUSTOMER
PROPERTY, COMPLETE OPEN TRANSACTIONS, ENFORCE RIGHTS OF SUBROGATION,
AND LIQUIDATE THE BUSINESS OF THE MEMBER, SEC. 78FFFA); HE IS NOT
EMPOWERED TO REORGANIZE OR REHABILITATE THE BUSINESS.  THE SIPC IS
REQUIRED TO ADVANCE HIM SUCH SUMS AS ARE NECESSARY TO COMPLETE OPEN
TRANSACTIONS, AND TO ACCOMPLISH THE RETURN OF CUSTOMER PROPERTY UP TO A
VALUE OF $50,000.  SEC. 78FFFF). 

THE ROLE OF THE SEC IN THIS SCHEME, INSOFAR AS RELEVANT TO THE
PRESENT CASE, IS ONE OF "PLENARY AUTHORITY" TO SUPERVISE THE SIPC.  S.
REP. NO. 91 - 1218, SUPRA, AT 1; SEE H. R. REP. NO. 91 - 1613, SUPRA,
AT 12.  FOR EXAMPLE, IT MAY DISAPPROVE IN WHOLE OR IN PART ANY BYLAW OR
RULE ADOPTED BY THE BOARD OF DIRECTORS OF THE SIPC, OR REQUIRE THE
ADOPTION OF ANY RULE IT DEEMS APPROPRIATE, IN ORDER TO PROMOTE THE
PUBLIC INTEREST AND THE PRUPOSES OF THE ACT.  15 U.S.C. SEC. 78CCE). 
IT MAY INSPECT AND EXAMINE THE SIPC'S RECORDS AND REQUIRE THAT ANY
INFORMATION IT DEEMS APPROPRIATE BE FURNISHED TO IT, AND IT RECEIVES
THE CORPORATION'S ANNUAL REPORT FOR INSPECTION AND TRANSMISSION, WITH
ITS COMMENTS, TO THE PRESIDENT AND CONGRESS.  SEC. 78GGGC).  IT MAY
PARTICIPATE IN ANY LIQUIDATION PROCEEDING INITIATED BY THE SIPC, BUT
EVEN MORE IMPORTANT, SEC. 7(B) OF THE ACT, SEC. 78GGGB), PROVIDES: 

     " ENFORCEMENT OF ACTIONS.--IN THE EVENT OF THE REFUSAL OF SIPC

  TO COMMIT ITS FUNDS OR OTHERWISE TO ACT FOR THE PROTECTION OF

  CUSTOMERS OF ANY MEMBER OF SIPC, THE COMMISSION MAY APPLY TO THE

  DISTRICT COURT OF THE UNITED STATES IN WHICH THE PRINCIPAL OFFICE

  OF SIPC IS LOCATED FOR AN ORDER REQUIRING SIPC TO DISCHARGE ITS

  OBLIGATIONS UNDER (THE ACT) AND FOR SUCH OTHER RELIEF AS THE

  COURT MAY DEEM APPROPRIATE TO CARRY OUT THE PURPOSES OF (THE

  ACT)." 

IT IS AGAINST THIS BACKGROUND RELATIONSHIP BETWEEN THE SIPC AND THE
SEC THAT WE MUST APPROACH THE QUESTION WHETHER, IN ADDITION TO THE
COMMISSION, A MEMBER'S CUSTOMERS OR THEIR REPRESENTATIVE MAY SEEK IN
DISTRICT COURT TO COMPEL THE SIPC "TO COMMIT ITS FUNDS OR OTHERWISE TO
ACT FOR THE PROTECTION" OF SUCH CUSTOMERS. 

III 

THE RESPONDENT CONTENDS THAT SINCE THE SIPA DOES NOT IN TERMS
PRECULDE A PRIVATE CAUSE OF ACTION AT THE INSTANCE OF A MEMBER BROKER'S
CUSTOMERS, AND SINCE SUCH CUSTOMERS ARE THE INTENDED BENEFICIARIES OF
THE ACT, THE COURT SHOULD IMPLY A RIGHT OF ACTION BY WHICH CUSTOMERS
CAN COMPEL THE SIPC TO DISCHARGE ITS OBLIGATIONS TO THEM.  AS WE SAID
ONLY LAST TERM IN ANALYZING A SIMILAR CONTENTION:  " IT GOES WITHOUT
SAYING . . . THAT THE INFERENCE OF SUCH A PRIVATE CAUSE OF ACTION NOT
OTHERWISE AUTHORIZED BY THE STATUTE MUST BE CONSISTENT WITH THE EVIDENT
LEGISLATIVE INTENT AND, OF COURSE, WITH THE EFFECTUATION OF THE
PURPOSES INTENDED TO BE SERVED BY THE ACT."  PASSENGER CORP. V.
PASSENGER ASSN., 414 U.S. 453, 457 - 458 (1974) (HEREINAFTER AMTRAK). 

IN AMTRAK ITSELF THE PETITIONER WAS A CORPORATION CREATED BY
CONGRESS TO ASSUME FROM PRIVATE RAILROADS CERTAIN INTERCITY RAIL
PASSENGER SERVICE RESPONSIBILITIES.  THE RESPONDENT PASSANGER
ASSOCIATION BROUGHT AN ACTION TO ENJOIN THE DISCONTINUANCE OF A
PARTICULAR SERVICE AS ANNOUNCED BY THE CORPORATION PURSUANT TO ITS
AUTHORITY UNDER SEC. 404(B)(2) OF THE RAIL PASSENGER SERVICE ACT OF
1970 (AMTRAK ACT), 45 U.S.C. SEC. 564(B)(2).  THAT ACT MADE EXPRESS
PROVISION FOR SUITS AGAINST AMTRAK TO ENFORCE ITS DUTIES AND
OBLIGATIONS ONLY "UPON PETITION OF THE ATTORNEY GENERAL OF THE UNITED
STATES OR, IN A CASE INVOLVING A LABOR AGREEMENT, UPON PETITION OF ANY
EMPLOYEE AFFECTED" BY THE AGREEMENT.  45 U.S.C. SEC. 547 (A).  THERE,
AS HERE, THE PLAINTIFF-RESPONDENT ARGUED THAT STATUTORY AUTHORIZATION
FOR ONE TYPE OF ACTION AGAINST THE CONGRESSIONALLY CREATED CORPORATION
DID NOT PRECLUDE ANOTHER AT THE INSTANCE OF THE INTENDED BENEFICIARIES
OF THE LAW. 

THE COURT'S ANALYSIS OF THE CLAIM IN AMTRAK BEGAN WITH THE
OBSERVATION THAT EXPRESS STATUTORY PROVISION FOR ONE FORM OF PROCEEDING
ORDINARILY IMPLIES THAT NO OTHER MEANS OF ENFORCEMENT WAS INTENDED BY
THE LEGISLATURE.  THAT IMPLICATION WOULD YIELD, HOWEVER, TO "CLEAR
CONTRARY EVIDENCE OF LEGISLATIVE INTENT," 414 U.S., AT 458, FOR WHICH
WE TURNED TO THE LEGISLATIVE HISTORY AND THE OVERALL STRUCTURE OF THE
AMTRAK ACT. 

INSPECTION REVEALED THAT THE LEGISLATIVE HISTORY OF THE AMTRAK ACT
WAS ENTIRELY CONSONANT WITH THE IMPLICATION OF THE STATUTORY LANGUAGE
THAT NO PRIVATE RIGHT OF ACTION WAS INTENDED.  /1/ THE GENERAL
STRUCTURE AND PURPOSE OF THE ACT GAVE FURTHER SUPPORT TO THAT
CONCLUSION.  CONGRESS HAD EXPECTED THAT, IN CREATING AN ECONOMICALLY
VIABLE RAIL PASSENGER SYSTEM, SOME RAIL SERVICE WOULD HAVE TO BE
DISCONTINUED BY AMTRAK; IT HAD PROVIDED AN EFFICIENT AND EXPEDITIOUS
MEANS TO THAT END, WHICH SEEMED INCOMPATIBLE WITH AN INTENT TO ALLOW A
PRIVATE ACTION BY ANY PASSENGER AFFECTED BY A DISCONTINUANCE DECISION. 
/2/  NOR WOULD THE ABSENCE OF A PRIVATE RIGHT OF ACTION LEAVE AMTRAK
FREE TO DISREGARD THE PUBLIC INTEREST IN ITS DECISIONMAKING.  IN
ADDITION TO INVESTING THE ATTORNEY GENERAL WITH "AUTHORITY TO POLICE
THE AMTRAK SYSTEM AND TO ENFORCE THE VARIOUS DUTIES AND OBLIGATIONS
IMPOSED BY THE ACT" BY COURT ACTION, CONGRESS PROVIDED FOR "SUBSTANTIAL
SCRUTINY" OVER AMTRAK'S OPERATIONS BY REQUIRING IT TO MAKE PERIODIC
REPORTS TO CONGRESS AND THE PRESIDENT AND TO OPEN ITS BOOKS TO THE
COMPTROLLER GENERAL FOR AUDITING.  414 U.S., AT 464. 

THE SIMILARITIES BETWEEN THE PRESENT CASE AND AMTRAK ARE UNDENIABLE
AND FOR THE RESPONDENT, WE THINK, INSURMOUNTABLE.  AS WITH AMTRAK, SO
WITH THE SIPC, CONGRESS HAS CREATED A CORPORATE ENTITY TO SOLVE A
PUBLIC PROBLEM; IT HAS PROVIDED FOR SUBSTANTIAL SUPERVISION OF ITS
OPERATIONS BY AN AGENCY CHARGED WITH PROTECTION OF THE PUBLIC INTEREST-
HERE THE SEC--AND FOR ENFORCEMENT BY THAT AGENCY IN COURT OF THE
OBLIGATIONS IMPOSED UPON THE CORPORATION.  THE CORPORATION IS REQUIRED
TO REPORT TO CONGRESS AND THE PRESIDENT, AND TO OPEN ITS BOOKS AND
RECORDS TO THE SEC AND THE COMPTROLLER GENERAL.  FURTHER, CONGRESS HAS
CHARTERED THE SIPC, UNLIKE AMTRAK, AS A NONPROFIT CORPORATION, AND IT
HAS PUT ITS DIRECTION IN THE HANDS OF A PUBLICLY CHOSEN BOARD OF
DIRECTORS. 

BEYOND THE INFERENCE TO BE DRAWN FROM THE STRUCTURE OF THE SIPC,
THERE IS NO EXTRINSIC EVIDENCE THAT CONGRESS INTENDED TO ALLOW AN
ACTION SUCH AS THAT BEFORE US.  /3/ AS THE RESPONDENT CONCEDES, THERE
IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THE SIPA THAT CONGRESS
EVER CONTEMPLATED A PRIVATE RIGHT OF ACTION PARALLEL TO THAT EXPRESSLY
GIVEN TO THE SEC.  ADDITIONALLY, AS IN AMTRAK, IT IS CLEAR THAT THE
OVERALL STRUCTURE AND PURPOSE OF THE SIPC SCHEME ARE INCOMPATIBLE WITH
SUCH AN IMPLIED RIGHT. 

CONGRESS' PRIMARY PURPOSE IN ENACTING THE SIPA AND CREATING THE SIPC
WAS, OF COURSE, THE PROTECTION OF INVESTORS.  IT DOES NOT FOLLOW,
HOWEVER, THAT AN IMPLIED RIGHT OF ACTION BY INVESTORS WHO DEEM
THEMSELVES TO BE IN NEED OF THE ACT'S PROTECTION, IS EITHER NECESSARY
TO OR INDEED CAPABLE OF FURTHERING THAT PURPOSE.     THE SIPC PROPERLY
TREATS AN APPLICATION FOR THE APPOINTMENT OF A RECEIVER AND LIQUIDATION
OF A BROKERAGE FIRM AS A LAST RESORT.  IT MAINTAINS AN EARLY WARNING
SYSTEM AND MONITORS THE AFFAIRS OF ANY FIRM THAT IT IS GIVEN REASON TO
BELIEVE MAY BE IN DANGER OF FAILURE.  ITS EXPERIENCE TO DATE
DEMONSTRATES THAT MORE OFTEN THAN NOT AN ENDANGERED FIRM WILL AVOID
COLLAPSE BY INFUSION OF NEW CAPITAL OR MERGER WITH A STRONGER FIRM. 
/4/ EVEN FAILING THOSE ALTERNATIVES, A FIRM MAY BE ABLE TO LIQUIDATE
UNDER THE SUPERVISION OF ONE OF THE SELF-REGULATORY ORGANIZATIONS, OR
THE DISTRICT COURT, WITHOUT DANGER OF LOSS TO CUSTOMERS.  THE SIPC'S
POLICY, THEREFORE, IS TO DEFER INTERVENTION "UNTIL THERE APPEARS) TO BE
NO REAONABLE DOUBT THAT CUSTOMERS WOULD NEED THE PROTECTION OF THE
ACT."  SIPC 1973 ANNUAL REPORT 7 (1974).  BY THIS POLICY, THE SIPC
AVOIDS UNNECESSARILY ENGENDERING THE COSTS OF PRECIPITATE LIQUIDATIONS-
THE COSTS NOT ONLY OF ADMINISTERING THE LIQUIDATIONS--THE COSTS NOT
ONLY OF ADMINISTERING THE LIQUIDATION, BUT ALSO OF CUSTOMER ILLIQUIDITY
AND ADDITIONAL LOSS OF CONFIDENCE IN THE CAPTIAL MARKETS--WITHOUT
SACRIFICE OF ANY CUSTOMER PROTECTION THAT MAY ULTIMATELY PROVE
NECESSARY.  A CUSTOMER, BY CONTRAST, CANNOT BE EXPECTED TO CONSIDER, OR
HAVE ADEQUATE INFORMATION TO CONSIDER, THESE PUBLIC INTERESTS IN TIMING
HIS DECISION TO APPLY TO THE COURTS. 

THE RESPONDENT IN THIS CASE DOES NOT, OF COURSE, CLAIM ANY RIGHT TO
MAKE THE DECISION THAT A FIRM SHOULD BE LIQUIDATED; THE ACT MAKES THAT
A JUDICIAL DECISION.  HE SEEKS ONLY THE RIGHT TO ASK THE DISTRICT COURT
TO MAKE THAT DECISION WHEN BOTH THE SIPC AND THE SEC HAVE REFUSED OR
SIMPLY FAILED TO DO SO.  IN PRACTICAL EFFECT, HOWEVER, THE DIFFERENCE
IS SLIGHT.  EXCEPT WITH RESPECT TO THE SOLIDEST OF HOUSES, THE MERE
FILING OF AN ACTION PREDICATED UPON ALLEGATIONS OF FINANCIAL INSECURITY
MIGHT OFTEN PROVE FATAL.  /5/ OTHER CUSTOMERS COULD NOT BE EXPECTED TO
LEAVE THEIR CASH AND SECURITIES ON DEPOSIT, NOR OTHER BROKERS TO
INITIATE NEW TRANSACTIONS THAT THE FIRM MIGHT NOT BE ABLE TO COVER WHEN
DUE IF A RECEIVER IS APPOINTED, NOR WOULD SUPPLIERS BE LIKELY TO
CONTINUE DEALING WITH SUCH A FIRM.  THESE CONSEQUENCES ARE TOO GRAVE,
AND WHEN UNNECESSARY, TOO INIMICAL TO THE PURPOSES OF THE ACT, FOR THE
COURT TO IMPUTE TO CONGRESS AN INTENT TO GRANT TO EVERY MEMBER OF THE
INVESTING PUBLIC CONTROL OVER THEIR OCCURRENCE.  ON THE CONTRARY, THEY
SEEM TO BE THE VERY SORTS OF CONSIDERATIONS THAT MOTIVATED CONGRESS TO
PUT THE SIPC IN THE HANDS OF A PUBLIC BOARD OF DIRECTORS, RESPONSIBLE
TO AN AGENCY EXPERIENCED IN REGULATION OF THE SECURITIES MARKETS.  /6/ 

WE NEED NOT PAUSE LONG OVER THE DISTINCTIONS BETWEEN THIS CASE AND
THOSE, SUCH AS J. I. CASE CO. V. BORAK, 377 U.S. 426 (1964), AND ALLEN
V. STATE BOARD OF ELECTIONS, 393 U.S. 544 (1969), IN WHICH THE COURT
HELD THAT AN IMPLIED PRIVATE CAUSE OF ACTION WAS MAINTAINABLE. 

IN J. I. CASE A STOCKHOLDER SOUGHT DAMAGES AGAINST HIS CORPORATION
FOR ITS ALLEGED MISREPRESENTATIONS, VIOLATIVE OF SEC. 14(A) OF THE
SECURITIES EXCHANGE ACT OF 1934, IN SOLICITING PROXY VOTES FOR THE
APPROVAL OF A MERGER.  IN LIGHT OF THE "BROAD REMEDIAL PURPOSES" OF THE
ACT AND THE SEC'S REPRESENTATION THAT PRIVATE ENFORCEMENT WAS NECESSARY
TO EFFECTUATE THOSE PURPOSES" THE COURT HELD THAT THE ACTION FOR
DAMAGES COULD BE MAINTAINED. 

THE COURT FIRST CONCLUDED THAT IT WAS "CLEAR THAT PRIVATE PARTIES
HAVE A RIGHT UNDER SEC. 27 (OF THE ACT) TO BRING SUIT FOR VIOLATION OF
SEC. 14(A)," SINCE SEC. 27 SPECIFICALLY GRANTED THE DISTRICT COURTS
JURISDICTION OVER "'ALL SUITS IN EQUITY AND ACTIONS AT LAW BROUGHT TO
ENFORCE ANY LIABILITY OR DUTY CREATED'" UNDER THE ACT.  377 U.S., AT
430 - 431.  THE MORE DIFFICULT QUESTION WAS WHETHER THE PRIVTE PARTIES,
ONCE IN COURT, COULD SEEK DAMAGES AS WELL AS EQUITABLE RELIEF.  ON THIS
POINT, THE COURT AGREED WITH THE SEC THAT PRIVATE ENFORCEMENT OF THE
PROXY RULES WAS A NECESSARY SUPPLEMENT TO SEC ENFORCEMENT.  SINCE THERE
WAS NO CONTRARY INDICATION FROM CONGRESS, THE COURT SO HELD, RELYING ON
THE STATEMENT FROM BELL V. HOOD, 327 U.S. 678, 684 (1946), THAT "WHERE
LEGAL RIGHTS HAVE BEEN INVADED, AND A FEDERAL STATUTE PROVIDES FOR A
GENERAL RIGHT TO SUE FOR SUCH INVASION, FEDERAL COURTS MAY USE ANY
AVAILABLE REMEDY TO MAKE GOOD THE WRONG DONE." 

UNLIKE THE SECURITIES EXCHANGE ACT, THE SIPA CONTAINS NO STANDARDS
OF CONDUCT THAT A PRIVATE ACTION COULD HELP TO ENFORCE, AND IT CONTAINS
NO GENERAL GRANTED OF JURISDICTION TO THE DISTRICT COURTS.  AS IN
AMTRAK, A PRIVATE RIGHT OF ACTION UNDER THE SIPA WOULD BE CONSISTENT
NEITHER WITH THE LEGISLATIVE INTENT, NOR WITH THE EFFECTUATION OF THE
PURPOSES IT IS INTENDED TO SERVE. 

THE ALLEN CASE AROSE UNDER THE VOTING RIGHTS ACT OF 1965.  THE
QUESTION THERE WAS WHETHER A PRIVATE CITIZEN COULD SUE TO SET ASIDE A
STATE OR LOCAL ELECTION LAW ON THE GROUND OF ITS REPUGNANCY TO THE
ACT.  THE FEDERAL STATUTE PROVIDED THAT THE ATTORNEY GENERAL MAY BRING
SUCH SUITS, BUT WAS SILENT AS TO THE RIGHTS OF OTHERS.  IT WAS CLEAR TO
THE COURT--AND TO THE ATTORNEY GENERAL--THAT THE ACT WOULD BE
PRACTICALLY UNENFORCEABLE AGAINST THE MANY LOCAL GOVERNMENTS SUBJECT TO
ITS STRUCTURES IF ONLY THE ATTORNEY GENERAL WERE AUTHORIZED TO SUE.  WE
THUS FOUND IT "CONSISTENT WITH THE BOARD PURPOSE OF THE ACT TO ALLOW
THE INDIVIDUAL CITIZEN STANDING TO INSURE THAT HIS CITY OR COUNTY
GOVERNMENT COMPLIES WITH" ITS REQUIRMENTS.  393 U.S., AT 557. 

THERE IS NOT THE SLIGHTEST REASON TO THINK THAT THE SIPA, IN
CONTRAST TO THE VOTING RIGHTS ACT, IMPOSES SUCH BURDENS ON THE PARTIES
CHARGED WITH ITS ADMINISTRATION THAT CONGRESS MUST EITHER HAVE INTENDED
THEIR EFFORTS TO BE SUPPLEMENTED BY THOSE OF PRIVATE INVESTORS OR
ENACTED A STATUTE INCAPABLE OF ACHIEVING ITS PURPOSE.  INSTEAD OF
ENLISTING THE AID OF INVESTORS IN ACHIEVING THAT PURPOSE, CONGRESS
IMPOSED UPON THE SEC, THE EXCHANGES, AND THE SELF-REGULATORY
ORGANIZATIONS THE OBLIGATION TO REPORT TO THE SIPC ANY SITUATION THAT
MIGHT CALL FOR ITS INTERVENTION. 

FOR THESE REASONS WE ARE UNABLE TO AGREE WITH THE PROPOSITION THAT
THE CUSTOMERS OF A MEMBER BROKER MAY SUE TO COMPEL THE SIPC TO PERFORM
ITS STATUTORY FUNCTIONS.  /7/ THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED, AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS THAT THE RECEIVER'S PETITION FOR AN ORDER TO SHOW CAUSE BE
DISMISSED. 

                                  IT IS SO ORDERED. 

/1/ BOTH THE SECRETARY OF TRANSPORTATION, WHO WAS GIVEN PRIMARY
RESPONSIBILITY FOR IMPLEMENTING THE LAW, AND SPOKESMEN FOR ORGANIZED
LABOR HAD INTERPRETED THE BILL AS ENACTED TO PRECLUDE PRIVATE ACTIONS
OTHER THAN THOSE SPECIFICALLY AUTHORIZED.  THE DRAFTING SUBCOMMITTEE TO
WHICH THESE VIEWS HAD BEEN EXPRESSED FOUND NOTHING IN THEM TO CORRECT. 

/2/ SEE 414 U.S., AT 462:  " IF, HOWEVER, (THE ACT) WERE TO BE
INTERPRETED AS PERMITTING PRIVATE LAWSUITS TO PREVENT THE DISCNTINUANCE
OF PASSENGER TRAINS, THEN THE ONLY EFFECT OF THE ACT IN THIS REGARD
WOULD HAVE BEEN TO SUBSTITUTE THE FEDERAL DISTRICT COURTS FOR THE STATE
OR FEDERAL ADMINISTRATIVE BODIES FORMERLY REQUIRED TO PASS UPON
PROPOSED DISCONTINUANCES." 

/3/ RESPONDENT ARGUES THAT BECAUSE CONGRESS PROVIDED THAT THE SIPC
CAN "SUE AND BE SUED, COMPLAIN AND DEFEND, IN ITS CORPORATE NAME AND
THROUGH ITS OWN COUNSEL, IN ANY COURT, STATE, OR FEDERAL," 15 U.S.C.
SEC. 78CCCB)(1), IT MUST HAVE CONTEMPLATED OCCASIONS WHEN AN AGGRIEVED
CUSTOMER OF A MEMBER FIRM WOULD BE ABLE TO SUE.  IN LIGHT OF THE
SPECIFIC TERMS OF THE MORE RELEVANT SECTION GOVERNING SUITS TO COMPEL
THE SIPC TO ACT FOR THE BENEFIT OF INVESTORS, THAT CONCLUSION IS
UNWARRANTED.  IT IS ALSO INCOMPATIBLE WITH THE LIMITATION OF SEC
ACTIONS "TO THE DISTRICT COURT OF THE UNITED STATES IN WHICH THE
PRINCIPAL OFFICE OF SIPC IS LOCATED."  15 U.S.C. SEC. 78GGGB).  IT
WOULD BE ANOMOLOUS FOR CONGRESS TO HAVE CENTRALIZED SEC SUITS FOR THE
APPARENT CONVENIENCE OF THE SIPC WHILE EXPOSING THE CORPORATION TO
SUBSTANTIVELY IDENTICAL SUITS BY INVESTORS "IN ANY COURT, STATE OR
FEDERAL." 

/4/ OF THE 266 FIRMS BROUGHT TO THE ATTENTION OF THE SIPC BY THE
EXCHANGES, SELF-REGULATORY ORGANIZATIONS, AND THE SEC BETWEEN THE
EFFECTIVE DATE OF THE SIPA AND THE END OF 1973, ONLY 32 WERE SUBJECTED
TO SIPC LIQUIDATION AS OF DECEMBER 31, 1973.  SIXTY-SIX WITHDREW FROM
THE BUSINESS OF CARRYING CUSTOMER ACCOUNTS, 26 SELF-LIQUIDATED AND 20
BECAME INACTIVE WITHOUT CUSTOMER LOSS, 11 MERGED WITH OTHER FIRMS, 62
CORRECTED THEIR PROBLEMS, AND 49 REMAINED UNDER SURVEILLANCE.  SIPC
1973 ANNUAL REPORT 17 (1974). 

/5/ SEE FREEMAN, ADMINISTRATIVE PROCEDURES, 22 BUS.  LAW.  891, 897
(1967):  " THE MOMENT YOU BRING A PUBLIC PROCEEDING AGAINST A BROKER
DEALER WHO DEPENDS UPON PUBLIC CONFIDENCE IN HIS REPUTATION, HE IS TO
ALL INTENTS AND PURPOSES OUT OF BUSINESS."  SEE SOURCES COLLECTED AT
FREEDMAN, SUMMARY ACTION BY ADMINISTRATIVE AGENCIES, 40 U. CHI.  L.
REV. 1, 33 N. 162 (1972), AND GELLHORN, ADVERSE PUBLICITY BY
ADMINISTRATIVE AGENCIES, 86 HARV. L. REV. 1380, 1394 - 1397 (1973). 
THERE MAY, OF COURSE, BE LESS REASON FOR PUBLIC REACTION TO A PRIVATE,
AS OPPOSED TO AN SEC, SUIT TO COMPEL THE SIPC'S PROTECTIVE MEASURES,
BUT THERE IS LITTLE REASON TO THINK THAT THE INVESTING PUBLIC, WITH ITS
ASSETS AT RISK, WOULD BE INTERESTED IN THE DISTINCTION. 

/6/ THE SEQUENCE OF EVENTS GIVING RISE TO THIS CASE PROVIDED NO
OPPORTUNITY FOR A RUN ON GUARANTY BECAUSE THE ATTEMPT TO COMPEL THE
SIPC'S INTERVENTION OCCURRED AFTER THE FIRM HAD CEASED DOING BUSINESS
AND HAD COME WITHIN THE JURISDICTION OF THE DISTRICT COURT FOR
LIQUIDATION, AT THE INSTANCE OF THE SEC.  IN THESE LIMITED
CIRCUMSTANCES CONGRESS COULD REASONABLY HAVE PROVIDED FOR A PRIVATE
ACTION BY A RECEIVER AGAINST THE SIPC, BUT IT DID NOT AND WE ARE NOT AT
LIBERTY TO DO SO.  THERE IS, AFTER ALL, A REAL DIFFERENCE BETWEEN A
COURT'S IMPLYING A RIGHT OF ACTION TO EFFECTUATE THE PURPOSES OF A
STATUTE AND ITS CUTTING A CODE OF PROCEDURE OUT OF WHOLE CLOTH. 

/7/ THE SEC SUGGESTS IN ITS BRIEF THAT A DETERMINATION BY IT NOT TO
PROCEED AGAINST THE SIPC WITH RESPECT TO A MEMBER BROKER-DEALER WHOSE
CUSTOMERS HAVE INCURRED A LOSS OF THE TYPE AGAINST WHICH THE SIPA IS
DIRECTED MIGHT BE REVIEWABLE UNDER THE ADMINISTRATIVE PROCEDURE ACT FOR
AN ABUSE OF DISCRETION.  WE NEED EXPRESS NO OPINION ON THAT MATTER
TODAY. 

MR. JUSTICE DOUGLAS DISSENTS. 

WILFRED R. CARON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
BRIEFS WAS THEODORE H. FOCHT. 

W. OVID COLLINS, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT BARBOUR.  SOLICITOR GENERAL BORK, WILLIAM L. PATTON,
LAWRENCE E. NERHEIM, AND DAVID FERBER FILED BRIEFS FOR RESPONDENT
SECURITIES AND EXCHANGE COMMISSION. 
..END :







ELLIS V. DYSON, 421 U.S. 426 


       ELLIS ET AT. V. DYSON ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

        NO. 73 - 130.  ARGUED NOVEMBER 12, 1974--DECIDED MAY 19,

           1975; 475 F.2D 1402, REVERSED AND REMANDED. 


    AFTER BEING CONVICTED AND FINED BY THE MUNICIPAL COURT, ON

  PLEAS OF NOLO CONTENDERE, FOR VIOLATING THE DALLAS LOITERING

  ORDINANCE, PETITIONERS, RATHER THAN SEEKING A TRIAL DE NOVO IN

  COUNTY COURT AND THUS SUBJECTING THEMSELVES TO THE POSSIBILITY OF

  A LARGER FINE, BROUGHT ACTION IN FEDERAL DISTRICT COURT

  CHALLENGING THE CONSTITUTIONALITY OF THE ORDINANCE AND SEEKING

  DECLARATORY AND OTHER RELIEF.  THE DISTRICT COURT DISMISSED THE

  ACTION, HOLDING THAT FEDERAL DECLARATORY AND INJUNCTIVE RELIEF

  AGAINST FUTURE STATE CRIMINAL PROSECUTIONS WAS NOT AVAILABLE

  ABSENT ALLEGATIONS OF BAD-FAITH PROSECUTION, HARASSMENT, OR OTHER

  UNUSUAL CIRCUMSTANCES PRESENTING A LIKELIHOOD OF IRREPARABLE

  INJURY TO PETITIONERS IF THE ORDINANCE WERE ENFORCED, A RESULT

  FELT TO BE MANDATED BY THE DECISION IN BECKER V. THOMPSON, 459

  F.2D 919 (CA 5), WHEREIN IT WAS HELD THAT THE PRINCIPLES OF

  YOUNGER V. HARRIS, 401 U.S. 37, APPLIED NOT ONLY WHERE A STATE

  CRIMINAL PROSECUTION WAS ACTUALLY PENDING, BUT ALSO WHERE A

  PROSECUTION WAS MERELY THREATENED.  THE COURT OF APPEALS

  AFFIRMED.  HELD:  SINCE THE BECKER DECISION WAS SUBSEQUENTLY

  REVERSED IN STEFFEL V. THOMPSON, 415 U.S. 452, WHEREIN IT WAS

  HELD THAT FEDERAL DECLARATORY RELIEF IS NOT PRECLUDED WHEN A

  STATE PROSECUTION BASED UPON AN ASSERTEDLY UNCONSTITUTIONAL STATE

  STATUTE HAS BEEN THREATENED, BUT IS NOT PENDING, EVEN IF A

  SHOWING OF BAD-FAITH ENFORCEMENT OR OTHER SPECIAL CIRCUMSTANCES

  HAS NOT BEEN MADE, THE COURT OF APPEALS' JUDGMENT IS REVERSED AND

  THE CASE IS REMANDED TO THE DISTRICT COURT FOR RECONSIDERATION IN

  LIGHT OF STEFFEL AS TO WHETHER THERE IS A GENUINE THREAT OF

  PROSECUTION ALLEGED THREAT OF FUTURE PROSECUTIONS.  PP. 433 -

  434. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

DOUGLAS, BRENNAN, MARSHALL, AND REHNQUIST, JJ., JOINED. 

 REHNQUIST, J., FILED A CONCURRING OPINION, POST, P. 435.  WHITE,

  J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART,

  POST, P. 437.  POWELL, J., FILED A DISSENTING OPINION, IN WHICH

  STEWART, J., JOINED, AND IN PART II OF WHICH BURGER, C.J.,

  JOINED, POST, P. 437. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS ACTION, INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS, CHALLENGES THE CONSTITUTIONALITY OF THE
LOITERING ORDINANCE OF THE CITY OF DALLAS.  WE DO NOT REACH THE MERITS,
FOR THE DISTRICT COURT DISMISSED THE CASE UNDER THE COMPULSION OF A
PROCEDURAL PRECEDENT OF THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT WHICH WE HAVE SINCE REVERSED. 

        I 

PETITIONERS TOM E. ELLIS AND ROBERT D. LOVE, WHILE IN AN AUTOMOBILE,
WERE ARRESTED IN DALLAS AT 2 A.M. ON JANUARY 18, 1972, AND WERE CHARGED
WITH VIOLATING THE CITY'S LOITERING ORDINANCE.  THAT ORDINANCE, SEC. 31
- 60 OF THE 1960 REVISED CODE OF CIVIL AND CRIMINAL ORDINANCES OF THE
CITY OF DALLAS, TEXAS, AS AMENDED BY ORDINANCE NO. 12991, ADOPTED JULY
20, 1970, PROVIDES: 

" IT SHALL BE UNLAWFUL FOR ANY PERSON TO LOITER, AS HEREINAFTER
DEFINED, IN, ON OR ABOUT MY PLACE, PUBLIC OR PRIVATE, WHEN SUCH
LOITERING IS ACCOMPANIED BY ACTIVITY OR IS UNDER CIRCUMSTANCES THAT
AFFORD PROBABLE CAUSE FOR ALARM OR CONCERN FOR THE SAFETY AND WELLBEING
OF PERSONS OR FOR THE SECURITY OF PROPERTY, IN THE SURROUNDING AREA." 
THE TERM "LOITER" IS DEFINED TO 

"INCLUDE THE FOLLOWING ACTIVITIES:  THE WALKING ABOUT AIMLESSLY
WITHOUT APPARENT PURPOSE; LINGERING; HANGING AROUND; LAGGING BEHIND;
THE IDLE SPENDING OF TIME; DELAYING; SAUNTERING AND MOVING SLOWLY
ABOUT, WHERE SUCH CONDUCT IS NOT DUE TO PHYSICAL DEFECTS OR
CONDITIONS."  A VIOLATION OF THE ORDINANCE IS CLASSIFIED AS A
MISDEMEANOR AND IS PUNISHABLE BY A FINE OF NOT MORE THAN $200. 

BEFORE THEIR TRIAL IN THE DALLAS MUNICIPAL COURT /1/ PETITIONERS
SOUGHT A WRIT OF PROHIBITION FROM THE TEXAS COURT OF CRIMINAL APPEALS
TO PRECLUDE THEIR PROSECUTION ON THE GROUND THAT THE ORDINANCE WAS
UNCONSTITUTIONAL ON ITS FACE.  APP. 29.  THE PETITIONERS CONTENDED, IN
PARTICULAR, THAT SEC. 31 - 60 IS VAUGE AND OVERBROAD, THAT IT "PERMITS
ARREST ON THE BASIS OF ALARM OR CONCERN ONLY," AND THAT IT ALLOWS THE
OFFENSE TO BE DEPEND "UPON THE MOMENT-BY-MOMENT OPINIONS AND SUSPICIONS
OF A POLICE OFFICER ON PATROL."  APP.  31.  THE COURT OF CRIMINAL
APPEALS, HOWEVER, DENIED THE APPLICATION WITHOUT OPINION ON FEBRUARY
21, 1972.  /2/ THE FOLLOWING DAY THE MUNICIPAL COURT PROCEEDED TO TRY
THE CASE.  AFTER OVERRULING PETITIONERS' MOTION TO DISMISS THE CHARGES
ON THE GROUNDS OF THE ORDINANCE'S UNCONSTITUTIONALITY, THE COURT
ACCEPTED THEIR PLEAS OF NOLO CONTENDERE /3/ AND FINED EACH PETITIONER
$10 PLUS $2.50 COSTS. 

UNDER TEXAS' TWO-TIER CRIMINAL JUSTICE SYSTEM, PETITIONERS COULD NOT
DIRECTLY APPEAL THE JUDGMENT OF THE MUNICIPAL COURT, BUT WERE ENTITLED
TO SEEK A TRIAL DE NOVO IN THE COUNTY COURT, /4/ TEX. CODE CRIME. 
PROC., ART. 44.17 (1966), BY FILING AT LEAST A $50 BOND WITHIN THE 10
DAYS FOLLOWING THE MUNICIPAL COURT'S JUDGMENT.  ARTS. 44.13 AND 44.16. 
AT THE DE NOVO TRIAL PETITIONERS WOULD HAVE BEEN SUBJECT TO THE SAME
MAXIMUM FINE OF $200.  APPEALLATE REVIEW OF THE COUNTY COURT JUDGMENT
WOULD BE AVAILABLE IN THE TEXAS COURT OF CRIMINAL APPEALS IF THE FIND
IMPOSED EXCEEDED $100.  ART. 4.03. 

ELECTING TO AVOID THE POSSIBILITY OF THE IMPOSITION OF A LARGER FINE
BY THE COUNTY COURT THAN WAS IMPOSED BY THE MUNICIPAL COURT,
PETITIONERS BROUGHT THE PRESENT FEDERAL ACTION /5/ UNDER THE CIVIL
RIGHTS STATUTES, 42 U.S.C. SEC. 1983, /6/ AND 28 U.S.C. SEC. 1343(3)
AND (4), AND UNDER THE DECLARATORY JUDGMENT ACT, 28 U.S.C. SEC. 2201 -
2202.  NAMED AS DEFENDATSN, IN BOTH THEIR INDIVIDUAL AND OFFICAL
CAPACITIES, WERE THE THEN CHIEF OF POLICE, THE CITY ATTORNEY, THE THEN
CITY MANAGER, THE THEN CLERK OF THE MUNICIPAL COURTS, AND THE MAYOR. 
PETITIONERS SOUGHT A DECLARATORY JUDGMENT THAT THE LOITERING ORDINANCE
IS UNCONSTITUTIONAL.  THEY COMPLAINED THAT THE STATUTE IS VAGUE AND
OVERBROAD, PLACES TOO MUCH DISCRETION IN ARRESTING OFFICERS, PROSCRIBES
CONDUCT THAT MAY NOT CONSTITUTIONALLY BE LIMITED, AND IMPERMISSIBLY
CHILLS THE RIGHTS OF FREE SPEECH, ASSOCIATION, ASSEMBLY, AND MOVEMENT. 
PETITIONERS ALSO SOUGHT EQUITABLE RELIEF IN THE FORM OF EXPUNCTION OF
THEIR RECORDS OF ARRESTS AND CONVICTIONS FOR VIOLATING THE ORDINANCE,
AND OF SOME COUNTERACTION TO ANY DISTRIBUTION TO OTHER LAW ENFORCEMENT
AGENCIES OF INFORMATION AS TO THEIR ARRESTS AND CONVICTIONS.  NO
INJUNCTIVE RELIEF AGAINST ANY FUTURE APPLICATION OF THE STATUTE TO THEM
WAS REQUESTED.  CF. REED V. GIARRUSSO, 462 F.2D 706 (CA 5 1972). 

THE PETITIONERS MOVED FOR SUMMARY JUDGMENT UPON THE PLEADINGS,
ADMISSIONS, AFFIDAVITS, AND "OTHER MATTERS OF RECORD."  APP.  42.  THE
RESPONDENTS, IN TURN, MOVED TO DISMISS AND SUGGESTED, AS WELL "THAT THE
ABSTENTION DOCTRINE IS APPLICABLE."  ID., AT 58.  THE DISTRICT COURT
HELD THAT FEDERAL DECLARATORY AND INJUNCTIVE RELIEF AGAINST FUTURE
STATE CRIMINAL PROSECUTIONS WAS NOT AVAILABLE WHERE THERE WAS NO
ALLEGATION OF BAD-FAITH PROSECUTION, HARASSMENT, OR OTHER UNUSUAL
CIRCUMSTANCES PRESENTING A LIKELIHOOD OF IRREPARABLE INJURY AND HARM TO
THE PETITIONERS IF THE ORDINANCE WERE ENFORCED.  THIS RESULT, IT
CONCLUDED, WAS MANDATED BY THE DECISION OF ITS CONTROLLING COURT IN
BECKER V. THOMPSON, 459 F.2D 919 (CA 5 1972).  IN BECKER, THE FIFTH
CIRCUIT HAD HELD THAT THE PRINCIPLES OF YOUNGER V. HARRIS, 401 U.S. 37
(1971), APPLIED NOT ONLY WHERE A STATE CRIMINAL PROSECUTION WAS
ACTUALLY PENDING, BUT ALSO WHERE A STATE CRIMINAL PROSECUTION WAS
MERELY THREATENED.  SINCE THE PRESENT PETITIONERS' COMPLAINT CONTAINED
INSUFFICIENT ALLEGATION OF IRREPARABLE HARM, THE CASE WAS DISMISSED. 
358 F. SUPP. 262 (1973).  /7/ THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT AFFIRMED WITHOUT OPINION.  475 F.2D 1402 (1973). 
AFTER WE UNANIMOUSLY REVERSED THE BECKER DECISION ON WHICH THE DISTRICT
COURT HAD RELIED, STEFFEL V. THOMPSON, 415 U.S. 452 (1974), WE GRANTED
THE PETITION FOR CERTIORARI.  416 U.S. 954 (1974). 

        II 

IN STEFFEL THE COURT CONSIDERED THE ISSUE WHETHER THE YOUNGER
DOCTRINE SHOULD APPLY TO A CASE WHERE STATE PROSECUTION UNDER A
CHALLENGED ORDINANCE WAS MERELY THREATENED BUT NOT PENDING.  IN THAT
CASE, STEFFEL AND HIS COMPANION, BECKER, ENGAGED IN PROTEST HANDBILLING
AT A SHOPPING CENTER.  POLICE INFORMED THEM THAT THEY WOULD BE ARRESTED
FOR VIOLATING THE GEORGIA CRIMINAL TRESPASS STATUTE IF THEY DID NOT
DESIST.  STEFFEL CEASED HIS HANDBILLING ACTIVITY, BUT HIS COMPANION
PERSISTED IN THE ENDEAVOR AND WAS ARRESTED AND CHARGED. 

STEFFEL THEN FILED SUIT UNDER 42 U.S.C. SEC. 1983 AND 28 U.S.C. SEC.
1343 IN FEDERAL DISTRICT COURT, SEEKING A DECLARATORY JUDGMENT /8/ THAT
THE ORDINANCE WAS BEING APPLIED IN VIOLATION OF HIS RIGHTS UNDER THE
FIRST AND FOURTEENTH AMENDMENTS.  IT WAS STIPULATED THAT IF STEFFEL
RETURNED AND REFUSED UPON REQUEST TO STOP HANDBILLING, A WARRANT WOULD
BE SWORN OUT AND HE MIGHT BE ARRESTED AND CHARGED WITH A VIOLATION OF
THE STATUTE.  415 U.S., AT 456.  CONTRARY TO THE VIEWS OF THE DISTRICT
COURT AND OF THE COURT OF APPEALS IN THE PRESENT CASE, WE HELD THAT
"FEDERAL DECLARATORY RELIEF IS NOT PRECLUDED WHEN NO STATE PROSECUTION
IS PENDING AND A FEDERAL PLAINTIFF DEMONSTRATES A GENUINE THREAT OF
ENFORCEMENT OF A DISPUTED STATE CRIMINAL STATUTE, WHETHER AN ATTACK IS
MADE ON THE CONSTITUTIONALITY OF THE STATUTE ON ITS FACE OR AS
APPLIED."  ID., AT 475. 

THUS, IN STEFFEL, WE REJECTED THE ARGUMENT THAT BAD-FAITH
PROSECUTION, HARASSMENT, OR OTHER UNIQUE AND EXTRAORDINARY
CIRCUMSTANCES MUST BE SHOWN BEFORE FEDERAL DECLARATORY RELIEF MAY BE
INVOKED AGAINST A GENUINE THREAT OF STATE PROSECUTION.  UNLIKE THE
SITUATION WHERE STATE PROSECUTION IS ACTUALLY PENDING, CF. SAMUELS V.
MACKELL, 401 U.S. 66 (1971), WHERE THERE IS SIMPLY A THREATENED
PROSECUTION, CONSIDERATIONS OF EQUITY, COMITY, AND FEDERALISM HAVE LESS
VITALITY.  /9/ INSTEAD, THE OPPORTUNITY FOR ADJUDICATION OF
CONSTITUTIONAL RIGHTS, IN A FEDERAL FORUM, AS AUTHORIZED BY THE
DECLARATORY JUDGMENT ACT, BECOMES PARAMOUNT.  415 U.S., AT 462 - 463. 

EXHAUSTION OF STATE JUDICIAL OR ADMINISTRATIVE REMEDIES IN STEFFEL
WAS RULED NOT TO BE NECESSARY, FOR WE HAVE LONG HELD THAT AN ACTION
UNDER SEC. 1983 IS FREE OF THAT REQUIREMENT ID., AT 472 - 473.  SEE,
E.G., MONROE V. PAPE, 365 U.S. 167, 183 (1961).  WE DID REQUIRE,
HOWEVER, THAT IT BE CLEARLY DEMONSTRATED THAT THERE WAS A CONTINUING,
ACTUAL CONTROVERSY, AS IS MANDATED BOTH BY THE DECLARATORY JUDGMENT
ACT, 28 U.S.C. SEC. 2201, AND BY ART, III OF THE CONSTITUTION ITSELF. 
ALTHOUGH WE NOTED IN STEFFEL, 415 U.S., AT 459, THAT THE THREATS OF
PROSECUTION WERE NOT "IMAGINARY OR SPECULATIVE," AS THOSE TERMS WERE
USED IN YOUNGER, 401 U.S., AT 42, WE REMANDED THE CASE TO THE DISTRICT
COURT TO DETERMINE, AMONG OTHER THINGS, IF THE CONTROVERSY WAS STILL
LIVE AND CONTINUING.  SEE 415 U.S., AT 460.  IN PARTICULAR, WE OBSERVED
THAT THE HANDBILLING HAD BEEN DIRECTED AGAINST OUR GOVERNMENT'S POLICY
IN VIETNAM AND "THE RECENT DEVELOPMENTS REDUCING THE NATION'S
INVOLVEMENT IN THAT PART OF THE WORLD" COULD NOT BE IGNORED, SO THAT
THERE WAS A POSSIBILITY THERE NO LONGER EXISTED "'A SUBSTANTIAL
CONTROVERSY, BETWEEN PARTIES HAVING ADVERSE LEGAL INTERESTS, OF
SUFFICIENT IMMEDIACY AND REALITY TO WARRANT THE ISSUANCE OF A
DECLARATORY JUDGMENT,'" IBID., QUOTING MARYLAND CASUALTY CO. V. PACIFIC
COAL & OIL CO., 312 U.S. 270, 273 (1941). 

        III 

THE PRINCIPLES AND APPROACH OF STEFFEL ARE APPLICABLE HERE.  THE
DISTRICT COURT AND THE COURT OF APPEALS DECIDED THIS CASE UNDER THE
MISAPPREHENSION THAT THE YOUNGER DOCTRINE APPLIED WHERE THERE IS A
THREATENED STATE CRIMINAL PROSECUTION AS WELL AS WHERE THERE IS A STATE
CRIMINAL PROSECUTION ALREADY PENDING.  THOSE COURTS HAD NO REASON TO
REACH THE MERITS OF THE CASE OR TO DETERMINE THE ACTUAL EXISTENCE OF A
GENUINE THREAT OF PROSECUTION, OR TO INQUIRE INTO THE RELATIONSHIP
BETWEEN THE PAST PROSECUTION AND THE THREAT OF PROSECUTIONS FOR SIMILAR
ACTIVITY IN THE FUTURE.  NOW THAT STEFFEL HAS BEEN DECIDED, THESE
ISSUES MAY PROPERLY BE INVESTIGATED. 

WE THEREFORE REVERSE THE JUDGMENT O FTHE COURT OF APPEALS AND REMAND
THE CASE TO THE DISTRICT COURT FOR RECONSIDERATION IN THE LIGHT OF OUR
OPINION IN STEFFEL V. THOMPSON, REVERSING BECKER V. THOMPSON.  IT IS
APPROPRIATE TO OBSERVE IN PASSING, HOWEVER, THAT WE POSSESS GREATER
RESERVATIONS HERE THAN WE DID IN STEFFEL AS TO WHETHER A CASE OR
CONTROVERSY EXISTS TODAY.  FIRST, AT ORAL ARGUMENT COUNSEL FOR
PETITIONERS ACKNOWLEDGED THAT THEY HAD NOT BEEN IN TOUCH WITH THEIR
CLIENTS' WHEREABOUTS.  TR. OF ORAL ARG. 5 - 7, 18 - 22, 25 - 26. 
PETITIONERS, APPARENTLY, ARE NOT EVEN APPRISED OF THE PROGRESS OF THIS
LITIGATION.  UNLESS PETITIONERS HAVE BEEN FOUND BY THE TIME THE
DISTRICT COURT CONSIDERS THIS CASE ON REMAND, IT IS HIGHLY DOUBTFUL
THAT A CASE OR CONTROVERSY COULD BE HELD TO EXIST; IT IS ELEMENTAL THAT
THERE MUST BE PARTIES BEFORE THERE IS A CASE OR CONTROVERSY.  FURTHER,
IF PETITIOENRS NO LONGER FREQUENT DALLAS, IT IS MOST UNLIKELY THAT A
SUFFICIENTLY GENUINE THREAT OF PROSECUTION FOR POSSIBLE FUTURE
VIOLATIONS OF THE DALLAS ORDNIANCE COULD BE ESTABLISHED. 

SECOND, THERE IS SOME QUESTION ON THIS RECORD AS IT NOW STANDS
REGARDING THE PATTERN OF THE STATUTE'S ENFORCEMENT.  ANSWERS TO
INTERROGATORIES REVEAL AN AVERAGE OF SOMEWHAT MORE THAN TWO PERSONS PER
DAY WERE ARRESTED IN DALLAS DURING SEVEN SPECIFIED MONTHS IN 1972 FOR
THE STATUTORY LOITERING OFFENSE.  APP. 68.  OF COURSE, ON REMAND, THE
DISTRICT COURT WILL FIND IT DESIRABLE TO EXAMINE THE CURRENT
ENFORCEMENT SCHEME IN ORDER TO DETERMINE WHETHER, INDEED, THERE NOW IS
A CREDIBLE THREAT THAT PETITIONERS, ASSUMING THEY ARE PHYSICALLY
PRESENT IN DALLAS, MIGHT BE ARRESTED AND CHARGED WITH LOITERING.  A
GENUINE THREAT MUST BE DEMONSTRATED IF A CASE OR CONTROVERSY, WITHIN
THE MEANING OF ART. III OF THE CONSTITUTION AND OF THE DECLARATORY
JUDGMENT ACT, MAY BE SAID TO EXIST.  SEE STEFFEL V. THOMPSON, 415 U.S.,
AT 458 - 460.  SEE GENERALLY O' SHEA V. LITTLETON, 414 U.S. 493 - 499
(1974); BOYLE V. LANDRY, 401 U.S. 77, 81 (1971).  FURTHER, THE CREDIBLE
THREAT MUST BE SHOWN TO BE ALIVE AT EACH STAGE OF THE LITIGATION. 
STEFFEL V. THOMPSON, 415 U.S., AT 459 N. 10, AND CASES CITED THEREIN. 

BECAUSE OF THE FACT THAT THE DISTRICT COURT HAS NOT HAD THE
OPPORTUNITY TO CONSIDER THIS CASE IN THE LIGHT OF STEFFEL, AND BECAUSE
OF OUR GRAVE RESERVATIONS ABOUT THE EXISTENCE OF AN ACTUAL CASE OR
CONTROVERSY, WE HAVE CONCLUDED THAT IT WOULD BE INAPPROPRIATE FOR US TO
TOUCH UPON ANY OF THE OTHER COMPLEX AND DIFFICULT ISSUES THAT THE CASE
OTHERWISE MIGHT PRESENT.  THE DISTRICT COURT MUST DETERMINE THAT THE
LITIGATION MEETS THE THRESHOLD REQUIREMENTS OF A CASE OR CONTROVERSY
BEFORE THERE CAN BE RESOLUTION OF SUCH QUESTIONS AS THE INTERACTION
BETWEEN THE PAST PROSECUTION AND THE THREAT OF FUTURE PROSECUTIONS, AND
OF THE POTENTIAL CONSIDERATIONS, IN THE CONTEXT OF THIS CASE, OF THE
YOUNGER DOCTRINE, OF RES JUDICATA, OF THE PLEA OF NOLO CONTENDERE, AND
OF THE PETITIONERS' FAILURE TO UTILIZE THE STATE APPELLATE REMEDY
AVAILABLE TO THEM.  EXPUNCTION OF THE RECORDS OF THE ARRESTS AND
CONVICTIONS AND THE NATURE OF CORRECTIVE ACTION WITH RESPECT THERETO IS
ANOTHER CLAIM WE DO NOT REACH AT THIS TIME.     THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  NO COSTS ARE ALLOWED. 

  IT IS SO ORDERED. 

/1/ THE MUNICIPAL COURT WAS FORMERLY KNOWN AS THE CORPORATION
COURT.  THE NAME WAS CHANGED BY TEX. SESS. LAWS, 61ST LEG., P. 1689, C.
547 (1969), NOW CODIFIED AS TEX. REV. CIV. STAT., ART. 1191 A (SUPP.
1974 - 1975). 

/2/ THE DENIAL MAY HAVE BEEN BASED ON STATE EX REL. BERGERON V.
TRAVIS COUNTY COURT, 76 TEX. CR. R. 147, 153 - 154, 174 S.W. 365, 367 -
368 (1915), AND STATE EX REL. BURKS V. STOVALL, 324 S.W. 2D 874, 877
(TEX. CT. CRIM. APP. 1959), REQUIRING THAT QUESTIONS CONCERNING THE
CONSTITUTIONALITY OF A LOCAL ORDINANCE BE RAISED IN COUNTY COURT BEFORE
A WRIT OF PROHIBITION WILL ISSUE FROM THE COURT OF CRIMINAL APPEALS. 

/3/ THE PERTINENT TEXAS STATUTE PROVIDES: 

" ON THE PART OF THE DEFENDANT, THE FOLLOWING ARE THE ONLY
PLEADINGS:

        * * * * * 

"6. A PLEA OF NOLO CONTENDERE.  THE LEGAL EFFECT OF SUCH PLEA SHALL
BE THE SAME AS THAT OF A PLEA OF GUILTY, BUT THE PLEA MAY NOT BE USED
AGAINST THE DEFENDANT AS AN ADMISSION IN ANY CIVIL SUIT BASED UPON OR
GROWING OUT OF THE ACT UPON WHICH THE CRIMINAL PROSECUTION IS BASED." 
TEX.  CODE CRIM. PROC., ART. 27.02 (1966), AS AMENDED BY TEX. SESS.
LAWS, 60TH LEG., C. 659, SEC. 17, P. 1738 (1967).  SINCE PETITIOENRS'
CONVICTIONS, THE ARTICLE HAS BEEN FURTHER AMENDED BUT THE NEW
AMENDMENTS ARE OF NO SIGNIFICANCE FOR THIS CASE.  SEE TEX. SESS. LAWS,
63D LEG., C. 399, SEC. 2(A), P. 969 (1973). 

/4/ WE UPHELD A SIMILAR TWO-TIER SYSTEM IN COLTEN V. KENTUCKY, 407
U.S. 104, 112 - 119 (1972). 

/5/ THE FEDERAL ACTION WAS INSTITUTED AFTER THE 10-DAY PERIOD FOR
POSTING BOND AND FILING FOR REVIEW DE NOVO IN THE COUNTY COURT HAD
EXPIRED. 

/6/ "SEC.  1983.  CIVIL ACTION FOR DEPRIVATION OF RIGHTS. 

" EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

/7/ THE DISTRICT COURT NOTED, TOO, THAT NO SHOWING OF EXHAUSTION OF
THE STATE APPELLATE PROCESS HAD BEEN MADE.  358 F. SUPP., AT 265 -
266. 

/8/ STEFFEL INITIALLY ALSO SOUGHT AN INJUNCTION.  AFTER THE DISTRICT
COURT HAD DENIED BOTH DECLARTORY AND INJUNCTIVE RELIEF, STEFFEL CHOOSE
TO APPEAL ONLY THE DENIAL OF DECLARATORY RELIEF.  BECKER V. THOMPSON,
459 F.2D 919, 921 (CA 5 1972); STEFFEL V. THOMPSON, 415 U.S. 452, 456
N. 6 (1974).  WE WERE NOT PRESENTED, THEREFORE, WITH ANY DISPUTE
CONCERNING THE PROPRIETY OF INJUNCTIVE RELIEF. 

/9/ THE COURT STATED IN STEFFEL, ID., AT 462:  " WHEN NO STATE
CRIMINAL PROCEEDING IS PENDING AT THE TIME THE FEDERAL COMPLAINT IS
FILED, FEDERAL INTERVENTION DOES NOT RESULT IN DUPLICATIVE LEGAL
PROCEEDINGS OR DISRUPTION OF THE STATE CRIMINAL JUSTICE SYSTEM; NOR CAN
FEDERAL INTERVENTION, IN THAT CIRCUMSTANCE, BE INTERPRETED AS
REFLECTING NEGATIVELY UPON THE STATE COURT'S ABILITY TO ENFORCE
CONSTITUTIONAL PRINCIPLES.  IN ADDITION, WHILE A PENDING STATE
PROSECUTION PROVIDES THE FEDERAL PLAINTIFF WITH A CONCRETE OPPORTUNITY
TO VINDICATE HIS CONSTITUTIONAL RIGHTS, A REFUSAL ON THE PART OF THE
FEDERAL COURTS TO INTERVENE WHEN NO STATE PROCEEDING IS PENDING MAY
PLACE THE HAPLESS PLAINTIFF BETWEEN THE SCYLLA OF INTENTIONALLY
FLOUTING STATE LAW AND THE CHARYBDIS OF FORGOING WHAT HE BELIEVES TO BE
CONSTITITIONALLY PROTECTED ACTIVITY IN ORDER TO AVOID BECOMING ENMESHED
IN A CRIMINAL PROCEEDING." 

MR. JUSTICE REHNQUIST, CONCURRING. 

I JOIN THE OPINION OF THE COURT, AND ADD THESE FEW WORDS ONLY TO
INDICATE WHY I BELIEVE THE COURT IS QUITE CORRECT IN LEAVING TO THE
DISTRICT COURT ON REMAND THE ISSUES TREATED IN THE DISSENTING OPINION
OF MY BROTHER POWELL ADN THE CONCURRING AND DISSENTING OPINION OF MY
BROTHER WHITE. 

THE DISTRICT COURT GRANTED RESPONDENTS' MOTION TO DISMISS
PETITIONERS' COMPLAINT BECAUSE IT REGARDED A PRIOR DECISION OF THE
COURT OF APPEALS, BECKER V. THOMPSON, 459 F.2D 919 (CA 5 1972), AS
CONTROLLING.  WHILE IT WOULD HAVE BEEN MORE IN KEEPING WITH
CONVENTIONAL ADJUDICATION HAD CONTROVERSY, AS SUGGESTED IN THE OPINION
OF MY BROTHER POWELL, I CANNOT FAULT THE DISTRICT COURT FOR DISPOSING
OF THE CASE ON WHAT IT QUITE PROPERLY REGARDED AT THAT TIME AS AN
AUTHORITATIVE GROUND OF DECISION.  INDEED, THIS COURT HAS ON OCCASION
FOLLOWED ESSENTIALLY THE SAME PRACTICE.  SECRETARY OF THE NAVY V.
AVRECH, 418 U.S. 676 (1974); UNITED STATES V. AUGENBLICK, 393 U.S. 348
(1969).  THE COURT OF APPEALS CONFIRMED THE DISTRICT COURT'S
UNDERSTANDING OF THE LAW WHEN IT AFFIRMED BY ORDER, 475 F.2D 1402 (CA 5
1973). 

LATER THIS COURT, IN STEFFEL V. THOMPSON, 415 U.S. 452 (1974),
REVERSED THE DECISION OF THE COURT OF APPEALS WHICH THAT COURT AND THE
DISTRICT COURT HAD REGARDED AS DISPOSITIVE OF THIS CASE.  IN STEFFEL,
WE HELD THAT YOUNGER V. HARRIS, 401 U.S. 37 (1971), DID NOT BAR ACCESS
TO THE DISTRICT COURT WHEN THE PLAINTIFF SOUGHT ONLY DECLARATORY RELIEF
AND NO STATE PROCEEDING WAS PENDING, BUT THE COURT ALSO EMPHASIZED THAT
PETITIONER MUST PRESENT "AN 'ACTUAL CONTROVERSY,' A REQUIREMENT IMPOSED
BY ART. III OF THE CONSTITUTION."  415 U.S., AT 458.  PROPERLY VIEWED,
THEREFORE, A REMAND FOR RECONSIDERATION IN LIGHT OF STEFFEL DIRECTS THE
DISTRICT COURT TO CONSIDER WHETHER THE REQUISITE CASE OR CONTROVERSY
WAS AND IS PRESENTED, AS WELL AS TO DETERMINE THE APPROPRIATENESS OF
DECLARATORY RELIEF. 

I BELIEVE THE COURT'S REMAND TO THE DISTRICT COURT, WHICH WILL GIVE
THAT COURT AN OPPORTUNITY TO RECONSIDER THE JURISDICTIONAL ISSUES
WITHIN THE FRAMEWORK OF STEFFEL AND TO PASS IN THE FIRST INSTANCE ON
THE OTHER ISSUES THAT MY BROTHER POWELL AND WHITE WOULD HAVE US DECIDE
TODAY, IS ENTIRELY APPROPRIATE.  SINCE I READ THE OPINION OF THE COURT
AS INTIMATING NO VIEWS ON EITHER OF THESE QUESTIONS THAT ARE CONTRARY
TO THOSE SUGGESTED BY MY DISSENTING BRETHREN, I AM QUITE CONTENT TO
LEAVE THEM FOR THE CONSIDERATION OF THE DISTRICT COURT IN THE FIRST
INSTANCE. 

MR. JUSTICE WHITE, CONCURRING IN PART AND DISSENTING IN PART. 

I JOIN THE OPINION OF THE COURT EXCEPT INSOFAR AS IT FAILS TO AFFIRM
THE DISMISSAL IN THE COURTS BELOW OF PETITIONERS' PRAYER FOR A
MANDATORY INJUNCTION REQUIRING THE EXPUNCTION OF THEIR CRIMINAL
RECORDS.  WITH RESPECT TO THAT ISSUE, THE PREREQUISITE OF A CASE OR
CONTROVERSY IS CLEARLY PRESENT; BUT UNDER YOUNGER V. HARRIS, 401 U.S.
37 (1971), THE DISTRICT COURT WAS PLAINLY CORRECT IN DISMISSING THE
CLAIM RATHER THAN RULING ON ITS MERITS.  HUFFMAN V. PURSUE, LTD., 420
U.S. 592 (1975), WOULD APPEAR TO REQUIRE AS MUCH. 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE STEWART JOINS, AND THE
CHIEF JUSTICE JOINS AS TO PART II, DISSENTING. 

PETITIONERS WERE CONVICTED IN DALLAS, TEXAS, MUNICIPAL COURT, ON
PLEAS OF NOLO CONTENDERE, OF VIOLATING THE CITY'S LOITERING ORDINANCE. 
THEY WERE FINED $10 EACH.  UNDER TEXAS LAW PETITIONERS HAD THE RIGHT TO
A TRIAL DE NOVO IN THE COUNTY COURT.  APPELLATE REVIEW OF AN ADVERSE
COUNTY COURT JUDGMENT IMPOSING A FINE IN EXCESS OF $100 WOULD HAVE BEEN
AVAILABLE IN THE TEXAS COURT OF CRIMINAL APPEALS.  A DETERMINATION BY
THE HIGHEST STATE COURT IN WHICH A DECISION COULD BE HAD, IF IT UPHELD
THE CONSTITUTIONALITY OF THE ORDINANCE, WOULD HAVE BEEN APPEALABLE TO
THIS COURT.  28 U.S.C. SEC. 1257(2). 

PETITIONERS DELIBERATELY ELECTED TO FORGO THESE REMEDIES, ALLOWED
THEIR CONVICTIONS IN MUNICIPAL COURT TO BECOME FINAL, AND THEREAFTER
FILED THIS ACTION UNDER 42 U.S.C. SEC. 1983 IN THE FEDERAL DISTRICT
COURT.  PETITIONERS' COMPLAINT ATTACKED THE CONSTITUTIONALITY OF THE
ORDINANCE AND SOUGHT TWO FORMS OF RELIEF.  /1/ (I) AN ORDER,
CHARACTERIZED BY THE DISTRICT COURT AS A REQUEST FOR AN INJUNCTION,
EXPUNGING THE RECORDS OF PETITIONERS' ARRESTS AND CONVICTIONS FOR
LOITERING; (II) A DECLARATORY JUDGMENT THAT THE ORDINANCE IS
UNCONSTITUTIONAL, I.E., THAT IT CANNOT CONSTITUTIONALLY BE APPLIED TO
THEM IN THE FUTURE.  THE DISTRICT COURT DENIED THE REQUESTED RELIEF,
AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED. 

IN ITS DECISION TODAY, RELYING ON STEFFEL V. THOMPSON, 415 U.S. 452
(1974), THE COURT REVERSES THE DECISION OF THE COURT OF APPEALS AND
REMANDS THE CASE FOR FURTHER CONSIDERATION OF PETITIONERS' REQUEST FOR
DECLARATORY RELIEF.  THE COURT ALSO FINDS IT UNNECESSARY TO CONSIDER
PETITIONERS' PRAYER FOR EXPUNCTION.  I AM IN DISAGREEMENT ON BOTH
POINTS.  I WOULD HOLD THAT ANY REILEF AS TO PETITIONERS' PREVIOUS
ARRESTS AND CONVICTIONS IS BARRED BY THEIR NOLO CONTENDERE PLEAS,
EQUIVALENT UNDER TEXAS LAW TO PLEAS OF GUILTY, /2/ AND BY THEIR
DELIBERATE DECISION TO FORGO STATE APPELLATE REMEDIES.  AS TO
PROSPECTIVE RELIEF, I THINK THAT STEFFEL AND THE GENERAL PRINCIPLES OF
JUSTICIABILITY TO WHICH IT ADHERES REQUIRE AFFIRMANCE, NOT A REVERSAL
AND REMAND.  IN VIEW OF THE UNDISPUTED FACTS IN THIS CASE, WE SHOULD
DECIDE THESE ISSUES NOW.  THE ENDS OF JUSTICE WILL NOT BE SERVED BY A
REMAND AND FURTHER LITIGATION.  MOREOVER, TODAY'S DECISION, EXPECIALLY
IN ITS READING OF STEFFEL, SEEMS LIKELY TO CONFUSE BOTH THE DISTRICT
COURT IN THIS CASE AND OTHER FEDERAL COURTS FACED WITH AN INCREASING
NUMBER OF CASES RAISING SIMIAR PROBLEMS. 

        I 

I TURN FIRST TO THE RETROSPECTIVE RELIEF SOUGHT BY PETITIONERS:
THEIR PRAYER FOR AN ORDER EXPUNGING THE RECORDS OF THEIR ARRESTS AND
CONVICTIONS.  THE QUESTION RAISED BY THIS PRAYER FOR AN ORDER EXPUNGING
THE RECORDS OF THEIR ARRESTS AND CONVICTIONS.  THE QUESTION RAISED BY
THIS PRAYER IS WHETHER A PLAINTIFF MAY RESORT TO SEC. 1983 TO ATTACK
COLLATERALLY HIS STATE CRIMINAL CONVICTION WHEN HE HAS EITHER KNOWINGLY
PLEADED GUILTY TO THE CHARGE OR FAILED TO INVOKE STATE APPELLATE
REMEDIES.  THIS ISSUE WAS RAISED IN THE COURTS BELOW, /3/ DECIDED BY
THOSE COURTS, /4/ AND ARGUED TO THIS COURT.  /5/ AS THE COURT
RECOGNIZES, ANTE, AT 435, THIS ISSUE IS UNAFFECTED BY OUR DECISION IN
STEFFEL, WHICH IS RELEVANT ONLY TO PETITIONERS' REQUEST FOR PROSPECTIVE
RELIEF.  MOREOVER, EVEN IF THIS CASE IS MOOT INSOFAR AS IT CONCERNS
PROSPECTIVE RELIEF BECAUSE PETITIONERS NO LONGER LIVE IN DALLAS, THAT
FACT HAS NO BEARING ON PETITIONERS' REQUEST FOR EXPUNCTION.  THUS, I
CAN SEE NO JUSTIFICATION FOR DEFERRING RESOLUTION OF THIS IMPORTANT
ISSUE. 

COLLATERAL ATTACK IN FEDERAL COURT ON STATE CRIMINAL CONVICTIONS
NORMALLY COMES IN HABEAS CORPUS PROCEEDINGS UNDER 28 U.S.C. SEC. 2241
ET SEQ. IN SUCH PROCEEDINGS, THE STATE COURT'S RESOLUTION OF A
CONSTITUTIONAL CLAIM GENERALLY IS NOT BINDING ON THE FEDERAL COURT. 
SEE BROWN V. ALLEN, 344 U.S. 443 (1953).  PETITIONERS, HOWEVER, WERE
NEITHER INCARCERATED NOR OTHERWISE RESTRAINED AS A RESULT OF THEIR
CONVICTIONS AND THUS COULD NOT SATISFY THE CUSTODY REQUIREMENT OF
HABEAS CORPUS JURISDICTION.  E.G., CARAFAS V. LA VALLEE, 391 U.S. 234
(1968).  THEY ACCORDINGLY PROCEEDED UNDER SEC. 1983, SEEKING TO HAVE
THE ORDINANCE INVALIDATED, THEIR CONVICTIONS DECLARED VOID, AND THE
RECORDS THEREOF EXPUNGED. 

THE COURT HAS NEVER EXPRESSLY DECIDED WHETHER AND IN WHAT
CIRCUMSTANCES SEC. 1983 CAN BE INVOKED TO ATTACK COLLATERALLY STATE
CRIMINAL CONVICTIONS.  THE RESOLUTION OF THIS GENERAL PROBLEM DEPENDS
ON THE EXTENT TO WHICH, IN A SEC. 1983 ACTION, PRINCIPLES OF RES
JUDICATA BAR RELITIGATION IN FEDERAL COURT OF CONSTITUTIONAL ISSUES
DECIDED IN STATE JUDICIAL PROCEEDINGS TO WHICH THE FEDERAL PLAINTIFF
WAS A PARTY.  BUT WE NEED NOT RESOLVE THIS GENERAL PROBLEM HERE.  /6/
FOR EVEN ASSUMING, ARGUENDO, THAT THE SCOPE OF COLLATERAL ATTACK IS AS
EXPANSIVE IN SEC. 1983 ACTIONS AS IT HAS BEEN HELD TO BE IN HABEAS
CORPUS PROCEEDINGS, I THINK IT CLEAR BEYOND QUESTION THAT PETITIONERS'
ACTION FOR RETROSPECTIVE RELIEF IS BARRED.  IF PETITIONERS HAD BEEN
CONFINED AS A RESULT OF THEIR NOLO CONTENDERE PLEAS AND THEREAFTER
FILED HABEAS CORPUS PETITIONS IN FEDERAL COURT, THERE CAN BE NO DOUBT
THAT THEIR PETITIONS SHOULD HAVE BEEN DISMISSED.  AS NOTED ABOVE, THE
NOLO CONTENDERE PLEAS WERE EQUIVALENT TO GUILTY PLEAS.  IT IS SETTLED
THAT WHEN DEFENDANTS PLEAD GUILTY TO STATE CRIMINAL CHARGES, THEY MAY
NOT SEEK FEDERAL HABEAS CORPUS RELIEF ON THE BASIS OF CONSTITUTIONAL
CLAIMS ANTECEDENT TO AND INDEPENDENT OF THE GUILTY PLEAS.  E.G.,
TOLLETT V. HENDERSON, 411 U.S. 258, 267 (1973).  IN SUCH CIRCUMSTANCES,
FEDERAL HABEAS PETITIONERS MAY ATTACK ONLY "THE VOLUNTARY AND
INTELLIGENT CHARACTER" OF THE PLEAS.  IBID.  /7/  MOREOVER, WHEN
FEDERAL HABEAS PETITIONERS DELIBERATELY HAVE ELECTED TO FORGO STATE
APPELLATE REMEDIES AFFORDED THEM, THE FEDERAL COURT MAY DENY RELIEF. 
/8/  FAY V. NOIA, 372 U.S. 391, 438 - 439 (1963).  WHEN A STATE
CRIMINAL DEFENDANT PLEADS GUILTY TO STATE CHARGES OR REFUSES TO INVOKE
STATE APPELLATE REMEDIES, HIS CONVICTION NO LONGER CAN BE SAID TO REST
ON AN ALLEGED DENIAL OF A CONSTITUTIONAL RIGHT.  INSTEAD, IT RESTS
SOLELY ON THE DEFENDANT'S REFUSAL TO LITIGATE THE ASSERTED RIGHT.  THE
ONLY ISSUE THEN COGNIZABLE ON COLLATERAL ATTACK IS WHETHER THE REFUSAL
TO LITIGATE WAS KNOWING AND VOLUNTARY.  IF IT WAS, COLLATERAL ATTACK
BASED ON THE ASSERTED CONSTITUTIONAL CLAIM IS FORECLOSED.  SEE ID., AT
468 - 472 (HARLAN, J., DISSENTING). 

THESE ESTABLISHED PRINCIPLES OF FEDERAL HABEAS CORPUS JURISDICTION
SHOULD APPLY WITH AT LEAST EQUAL FORCE TO ATTEMPTS UNDER SEC. 1983
COLLATERALLY TO ATTACK STATE CRIMINAL CONVICTION.  /9/ I WOULD HOLD
THAT SEC. 1983 DOES NOT ALLOW SUCH DELIBERATE CIRCUMVENTION OF THE
STATE JUDICIAL PROCESSES, AND THAT WHEN A STATE DEFENDANT KNOWINGLY
PLEADS GUILTY OR FAILS TO INVOKE STATE APPELLATE REMEDIES HIS
CONVICTION IS NOT SUBJECT TO IMPEACHMENT IN A SEC. 1983 ACTION. 
II 

WITH RESPECT TO PETITIONERS' REQUEST FOR A DECLARATION THAT THE
DALLAS ORDINANCE IS UNCONSTITUTIONAL AND CANNOT BE APPLIED TO THEM IN
THE FUTURE, THE COURT HOLDS THAT "(THE PRINCIPLES AND APPROACH OF
STEFFEL ARE APPLICABLE" AND REMANDS FOR RECONSIDERATION IN LIGHT OF OUR
OPINION IN THAT CASE.  ANTE, AT 433, 434.  IN MY VIEW, THIS DISPOSITION
SERIOUSLY MISREADS OUR OPINION IN STEFFEL.  IT IGNORES THE NECESSITY,
FULLY RECOGNIZED IN STEFFEL, THAT A COMPLAINT MAKE OUT A JUSTICIABLE
CASE OR CONTROVERSY, THE INDISPENSABLE CONDITION UNDER ART. III TO THE
EXERCISE OF FEDERAL JUDICIAL POWER. 

        A 

THE QUESTION, INSOFAR AS PETITIONERS SEEK PROSPECTIVE RELIEF, IS
WHETHER THE CHALLENGE TO THE CONSTITUTIONALITY OF THE DALLAS ORDINANCE
WAS PRESENTED, AT THE TIME THE COMPLAINT WAS FILED, IN THE CONTEXT OF A
LIVE CONTROVERSY BETWEEN THE PARTIES: 

" BASICALLY, THE QUESTION IN EACH CASE IS WHETHER THE FACTS ALLEGED,
UNDER ALL THE CIRCUMSTANCES, SHOW THAT THERE IS A SUBSTANTIAL
CONTROVERSY, BETWEEN PARTIES HAVING ADVERSE LEGAL INTERESTS, OF
SUFFICIENT IMMEDIACY AND REALITY TO WARRANT THE ISSUANCE OF A
DECLARATORY JUDGMENT."  MARYLAND CASUALTY CO. V. PACIFIC COAL & OIL
CO., 312 U.S. 270, 273 (1941). 

THIS TEST WAS MET IN STEFFEL SHOWED THAT PETITIONER FACED AN
IMMINENT PROSPECT OF ARREST AND PROSECUTION UNDER THE CHALLENGED STATE
STATUTE.  HE PREVIOUSLY HAD ENGAGED IN DISTRIBUTING HANDBILLS AT A
SHOPPING CENTER, AND ON TWO OCCASIONS HAD BEEN THREATENED WITH ARREST
IF HE CONTINUED HIS ACTIVITY.  ON THE SECOND OCCASION, PETITIONER
AVOIDED ARREST ONLY BY LEAVING THE PREMISES.  HIS COMPANION, WHO DID
NOT LEAVE, WAS ARRESTED AND ARRAIGNED ON A CHARGE OF CRIMINAL
TRESPASS.  THE PARTIES STIPULATED THAT "IF PETITIONER RETURNED (TO THE
SHOPPING CENTER) AND REFUSED UPON REQUEST TO STOP HANDBILLING, A
WARRANT WOULD BE SWORN OUT AND HE MIGHT BE ARRESTED AND CHARGED WITH A
VIOLATION OF THE GEORGIA STATUTE."  415 U.S., AT 456.  IN LIGHT OF
THESE FACTS WE SAID: 

"(PETITIONER HAS ALLEGED THREATS OF PROSECUTION THAT CANNOT BE
CHARACTERIZED AS 'IMAGINARY OR SPECULATIVE'.  . .  HE HAS BEEN TWICE
WARNED TO STOP HANDBILLING THAT HE CLAIMS IS CONSTITUTIONALLY PROTECTED
AND HAS BEEN TOLD BY THE POLICE THAT IF HE AGAIN HANDBILLS AT THE
SHOPPING CENTER AND DISOBEYS A WARNING TO STOP HE WILL LIKELY BE
PROSECUTED.  THE PROSECUTION OF PETITIONER'S HANDBILLING COMPANION IS
AMPLE DEMONSTRATION THAT PETITIONER'S CONCERN WITH ARREST HAS NOT BEEN
'CHIMERICAL,' POE V. ULLMAN, 367 U.S. 497, 508 (1961).  IN THESE
CIRCUMSTANCES, IT IS NOT NECESSARY THAT PETITIONER FIRST EXPOSE HIMSELF
TO ACTUAL ARREST OR PROSECUTION TO BE ENTITLED TO CHALLENGE A STATUTE
THAT HE CLAIMS DETERS THE EXERCISE OF HIS CONSTITUTIONAL RIGHTS."  ID.,
AT 459.  AS MR. JUSTICE STEWART PUT IT IN HIS CONCURRING OPINION: 

   " THE PETITIONER . . . HAS SUCCEEDED IN OBJECTIVELY SHOWING

  THAT THE THREAT OF IMMINENT ARREST, CORROBORATED AN ACTUAL

  CONCRETE CONTROVERSY BETWEEN HIMSELF AND THE AGENTS OF THE

  STATE."  ID., AT 476. 

THE SITUATION IN THE PRESENT CASE DIFFERS FROM THAT IN STEFFEL IN
CONTROLLING RESPECTS.  PETITIONERS PREVIOUSLY HAD BEEN ARRESTED FOR
"LOITERING" AT 2 A.M. IN A SECTION OF THE CITY REMOTE FROM THEIR
RESIDENCES.  WHETHER THESE ARRESTS AND PETITIONERS' SUBSEQUENT
CONVICTIONS COULD HAVE SURVIVED CONSTITUTIONAL CHALLENGE, HAD IT TIMELY
BEEN MADE, IS A MATTER IRRELEVANT TO THE PRESENT ISSUE.  PETITIONERS'
PREVIOUS ARRESTS AND CONVICTIONS ARE RELEVANT TO THE JUSTICIABILITY OF
THEIR PRAYER FOR PROSPECTIVE RELIEF ONLY IF THEY EVIDENCE A REALISTIC
LIKELIHOOD THAT PETITIONERS MAY BE ARRESTED AGAIN AND, THEREFORE, THAT
THE ORDINANCE CAUSES THEM REAL AND IMMEDIATE HARM.  SEE O' SHEA V.
LITTLETON, 414 U.S. 488, 496 (1974).  THESE PRECONDITIONS TO THE
REQUISITE JUSTICIABILITY SIMPLY DO NOT EXIST IN THIS CASE. 

APPLICATION OF THE CHALLENGED DALLAS ORDINANCE DEPENDS, BY ITS
TERMS, ON THE FACTS OF EACH CASE.  IT IS EXTREMELY UNLIKELY THAT THE
EXACT SET OF CIRCUMSTANCES LEADING TO THE PREVIOUS ARREST AND
CONVICTION OF PETITIONERS WILL EVER BE REPEATED.  PETITIONERS' BRIEF,
ATTEMPTING TO ACCOMMODATE TO STEFFEL'S RATIONALE, REFERS VAGUELY TO
"PETITIONERS' FEAR OF ARREST AND PROSECUTION."  /10/ READ MOST
GENEROUSLY, HOWEVER, THE COMPLAINT AND SUPPORTING MATERIALS ARE BARREN
OF ANY FACTS RELATING PETITIONERS' PAST ARRESTS TO A POSSIBILITY OF
FUTURE ARRESTS, OR OTHERWISE SUBSTANTIATING THEIR ASSERTED FEARS THAT
THE DALLAS ORDINANCE AGAIN WILL BE INVOKED AGAINST THEM.  THE ONLY
BASIS FOR "FEAR" MENTIONED BY COUNSEL IS THE FACT THAT LOITERING
ARRESTS WERE OCCURRING IN DALLAS "AT THE RATE OF MORE THAN TWO PER
DAY."  /11/ BUT TWO ARRESTS PER DAY IN A CITY OF MORE THAN ONE MILLION
PERSONS HARDLY REPRESENTS A HIGHRISK SITUATION FOR ANYONE, AND
CERTAINLY POSES NO PARTICULARIZED THREAT TO PETITIONERS.  UNDER THE
FACTS ALLEGED IN THE COMPLAINT OR APPEARING FROM OTHER MATERIALS BEFORE
THE DISTRICT COURT, PETITIONERS' POSITION WITH RESPECT TO THE
CHALLENGED ORDINANCE WAS NO DIFFERENT FROM WHAT IT WOULD HAVE BEEN HAD
THEY NEVER BEEN ARRESTED, AND THEIR CHANCES OF FUTURE PROSECUTION NO
GREATER THAN THOSE OF ANY OTHER PERSON WHO USED THE STREETS OF DALLAS. 
/12/

        B 

IN SEVERAL CASES WE HAVE FOUND CONSTITUTIONAL CHALLENGES TO STATE
AND FEDERAL STATUTES JUSTICIABLE DESPITE THE ABSENCE OF ACTUAL THREATS
OF ENFORCEMENT DIRECTED PERSONALLY TO THE PLAINTIFF.  E.G., DOE V.
BOLTON, 410 U.S. 179, 188 - 189 (1973); LAKE CARRIERS' ASSN. V. MAC
MULLAN, 406 U.S. 498, 506 - 508 (1972).  SEE CSC V. LETTER CARRIERS,
413 U.S. 548, 551 - 553 (1973).  IN EACH SUCH CASE, HOWEVER, THE
CHALLENGED STATUTE APPLIED PARTICULARLY AND UNAMBIGUOUSLY TO ACTIVITIES
IN WHICH THE PLAINTIFF REGULARLY ENGAGED OR SOUGHT TO ENGAGE.  IN EACH
CASE THE PLAINTIFF CLAIMED THAT THE STATE OR FEDERAL GOVERNMENT, BY
PROHIBITING SUCH ACTIVITIES, HAD EXCEEDED SUBSTANTIVE CONSTITUTIONAL
LIMITATIONS ON THE REACH OF ITS POWERS.  THE PLAINTIFFS, THEREFORE,
WERE PUT TO A CHOICE.  /13/ UNLESS DECLARATORY RELIEF WAS AVAILABLE,
THEY WERE COMPELLED TO CHOOSE BETWEEN A GENUINE RISK OF CRIMINAL
PROSECUTION AND CONFORMITY TO THE CHALLENGED STATUTE, A CONFORMITY THAT
WOULD REQUIRE THEM TO INCUR SUBSTANTIAL DEPRIVATION EITHER IN TANGIBLE
FORM OR IN FORGOING THE EXERCISE OF ASSERTED CONSTITUTIONAL RIGHTS.  IN
SUCH CIRCUMSTANCES WE HAVE RECOGNIZED THAT THE CHALLENGED STATUTE
CAUSES THE PLAINTIFF PRESENT HARM, AND THAT THE "CONTROVERSY IS BOTH
IMMEDIATE AND REAL."  LAKE CARRIERS' ASSN., SUPRA, AT 508. 

STEFFEL DOES NOT DEPART FROM THIS GENERAL ANALYSIS.  THE DIFFERENCE
BETWEEN STEFFEL AND THE ABOVE CASES LIES IN THE NATURE OF THE STATUTE
INVOLVED.  STEFFEL CONCERNED A GENERAL TRESPASS ORDINANCE THAT DID NOT,
ON ITS FACE, APPLY PARTICULARLY TO ACTIVITIES IN WHICH STEFFEL ENGAGED
OR SOUGHT TO ENGAGE.  THE STATUTE WAS SUSCEPTIBLE OF A MULTITUDE OF
APPLICATIONS THAT WOULD NOT EVEN ARGUABLY EXCEED CONSTITUTIONAL
LIMITATIONS ON STATE POWER.  BUT THE THREATENED PROSECUTION OF STEFFEL,
FOLLOWING THE ARREST AND PROSECUTION OF HIS COMPANION, DEMONSTRATED
THAT THE STATE OFFICALS CONSTRUED THE STATUTE TO APPLY TO THE PRECISE
ACTIVITIES IN WHICH STEFFEL HAD ENGAGED AND PROPOSED TO ENGAGE IN THE
FUTURE.  THERE WAS, THEREFORE, NO QUESTION THAT STEFFEL WAS CONFRONTED
WITH A CHOICE IDENTICAL IN PRINCIPLE AND PRACTICAL CONSEQUENCE TO THAT
FACED BY PLAINTIFFS IN THE ABOVE CASES: HE COULD EITHER RISK CRIMINAL
PROSECUTION OR FORGO ENGAGING IN SPECIFIC ACTIVITIES THAT HE BELIEVE
WERE PROTECTED BY THE FIRST AMENDMENT.  WHICHEVER CHOICE HE MADE, THE
HARM TO STEFFEL WAS REAL AND IMMEDIATE. 

THE PLEADINGS IN THIS CASE REVEAL NO LIKE CIRCUMSTANCES.  THEY
MERELY AVER THAT THE DALLAS ORDINANCE HAS A "CHILLING" EFFECT ON FIRST
AMENDMENT RIGHTS OF SPEECH AND ASSOCIATION.  THIS AVERMENT, MOREOVER,
IS RELATED NOT TO PETITIONERS SPECIFICALLY, BUT RATHER TO THE "CITIZENS
OF DALLAS."  /14/ WHILE IT IS THEORETICALLY POSSIBLE THAT THE ORDINANCE
MAY BE APPLIED TO INFRINGE PETITIONERS' FIRST AMENDMENT RIGHTS, NOTHING
IN THE FACTS RELATING TO THEIR RESPECTIVE PRIOR ARRESTS AND CONVICTIONS
INDICATES THAT THE ORDINANCE HAS BEEN SO APPLIED TO PETITIONERS OR
INDEED TO ANYONE ELSE.  IN SHORT, PETITIOENRS RELY ENTIRELY ON A
SPECULATIVE DETERRENT EFFECT THAT THE DALLAS ORDINANCE CONCEIVABLY
COULD HAVE ON THE EXERCISE OF CONSTITUTIONAL RIGHTS BY ALL DALLAS
CITIZENS.  THE COMPLAINT NOWHERE ALLEGES THAT THE ORDINANCE HAS BEEN
APPLIED TO PARTICULAR ACTIVITIES, ASSERTEDLY WITHIN THE SCOPE OF FIRST
AMENDMENT PROTECTION, IN WHICH PETITIONERS REGULARLY ENGAGE OR IN WHICH
THEY WOULD ENGAGE BUT DO NOT BECAUSE OF FEAR OF PROSECUTION.  COMPARE
CSC V. LETTER CARRIERS, SUPRA, WITH UNITED PUBLIC WORKERS V. MITCHELL,
330 U.S. 75, 86 - 91 (1947).  AS THE CASES DISCUSSED ABOVE DEMONSTRATE,
BEFORE A STATUTE MAY BE CHALLENGED ON THE GROUND THAT IT DETERS THE
EXERCISE OF CONSTITUTIONAL RIGHTS, THE ALLEGED RESTRAINT MUST IN ALL
EVENTS BE PERSONAL TO THE COMPLAINING PARTIES.  " IT WOULD NOT ACCORD
WITH JUDICIAL RESPONSIBILITY TO ADJUDGE, IN A MATTER INVOLVING
CONSTITUTIONALITY, BETWEEN THE FREEDOM OF THE INDIVIDUAL AND THE
REQUIREMENTS OF PUBLIC ORDER EXCEPT WHEN DEFINITE RIGHTS APPEAR UPON
THE ONE SIDE AND DEFINITE PREJUDICIAL INTERFERENCES UPON THE OTHER." 
UNITED PUBLIC WORKERS, SUPRA, AT 90.  /15/

        C 

PETITIONERS' PLEADINGS THUS FAILED TO DEMONSTRATE THAT THEY WERE
SUFFERING ANY "REAL AND IMMEDIATE" HARM CONSEQUENT TO THE ENFORCEMENT
OF THE DALLAS ORDINANCE.  THE COURT'S OPINION, HOWEVER, STATES THAT THE
DISTRICT COURT AND THE COURT OF APPEALS "HAD NO REASON TO . . .
DETERMINE THE ACTUAL EXISTENCE OF A GENUINE THREAT OF PROSECUTION, OR
TO INQUIRE INTO THE RELATIONSHIP BETWEEN THE PAST PROSECUTION AND THE
THREAT OF PROSECUTIONS FOR SIMILAR ACTIVITY IN THE FUTURE."  ANTE, AT
433.  TO THE CONTRARY, I FIND IT CLEAR THAT THE DISTRICT COURT DID
HOLD, ERRONEOUSLY, THAT PETITIONERS' COMPLAINT STATED A JUSTICIABLE
CLAIM FOR PROSPECTIVE RELIEF.  /16/ BUT EVEN IF, AS THE COURT
APPARENTLY BELIEVES, THE DISTRICT COURT SIMPLY ASSUMED A JUSTICIABLE
CLAIM FOR RELIEF, THAT IN ITSELF WOULD CONSTITUTE A DEPARTURE FROM WHAT
I HAD THOUGHT TO BE THE SETTLED ORDER OF FEDERAL ADJUDICATION.  THE
DISTRICT COURT'S FIRST OBLIGATION, HERE AS IN ALL CASES, WAS TO
DETERMINE WHETHER, TAKING THE ALLEGATIONS OF THE COMPLAINT AS TRUE,
PETITIONERS'  CLAIM FOR PROSPECTIVE RELIEF WAS JUSTICIABLE.  IF IT WAS
NOT, THEN THERE WAS NO NEED--INDEED, NO JURISDICTION--TO CONSIDER THE
CLAIM FURTHER. 

THE SITUATION HERE IS SIMILAR TO THAT IN O' SHEA V. LITTLETON,
SUPRA.  IN THAT CASE, THE DISTRICT COURT DISMISSED THE SUIT BOTH FOR
WANT OF EQUITABLE JURISDICTION TO GRANT THE RELIEF PRAYED FOR AND ON
THE GROUND THAT THE DEFENDANTS WERE IMMUNE FROM SUIT.  THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT REVERSED, AND WE IN TURN REVERSED THE
DECISION OF THE COURT OF APPEALS.  WHAT WE SAID THERE IS EQUALLY
APPLICABLE HERE:  " THE COMPLAINT FAILED TO SATISFY THE THRESHOLD
REQUIREMENT IMPOSED BY ART. III . . . THAT THOSE WHO SEEK TO INVOKE THE
POWER OF FEDERAL COURTS MUST ALLEGE AN ACTUAL CASE OR CONTROVERSY . . .
PLAINTIFFS IN THE FEDERAL COURTS 'MUST ALLEGE SOME THREATENED OR ACTUAL
INJURY RESULTING FROM THE PUTATIVELY ILLEGAL ACTION BEFORE A FEDERAL
COURT MAY ASSUME JURISDICTION.'"  414 U.S., AT 493, QUOTING LINDA R.S.
V. RICHARD D., 410 U.S. 614, 617 (1973) (EMPHASIS ADDED). 

THERE BEING NO SUBSTANTIAL CONTROVERSY BETWEEN THE PARTIES,
PETITIONERS' COMPLAINT, INSOFAR AS IT SOUGHT PROSPECTIVE RELIEF, SHOULD
HAVE BEEN DISMISSED.  THE COURT'S OPINION ACKNOWLEDGES THAT THERE IS A
SERIOUS QUESTION "WHETHER A CASE OR CONTROVERSY EXISTS TODAY." 
(EMPHASIS ADDED.)  BUT THE COURT RELATES THIS QUESTION TO FACTS, NOT OF
RECORD, THAT HAVE OCCURRED SINCE THIS SUIT WAS FILED.  ANTE, AT 434. 
IN VIEW OF THE CONCESSION MADE AT ARGUMENT THAT PETITIONERS'
WHEREABOUTS ARE UNKNOWN AND THAT COUNSEL WAS NO LONGER IN TOUCH WITH
THEM, /17/ THERE IS INDEED SERIOUS QUESTION WHETHER A JUSTICIABLE
CONTROVERSY NOW EXISTS.  BUT THE CRITICAL ISSUE, AND ONE THAT THE COURT
DECLINES TO ADDRESS, IS WHETHER THE PETITIONERS WERE ENTITLED TO INVOKE
FEDERAL JURISDICTION WHEN THEY INSTITUTED SUIT. 

A DETERMINATION OF PRESENT MOOTNESS IS ALTOGETHER IMMATERIAL TO THE
QUESTION WHETHER THERE WAS FEDERAL JURISDICTION AT THE TIME DECLARATORY
RELIEF INITIALLY WAS SOUGHT.  ONLY IF A SPECIFIC, LIVE CONTROVERSY
EXISTED BETWEEN THE PARTIES AT THE THRESHOLD CAN FEDERAL JURISDICTION
ATTACH.  AND ONLY IF THE REQUISITE JUSTICIABLE CONTROVERSY THEN EXISTED
MAY A COURT DETERMINE WHETHER IT PERSISTS AT SOME SUBSEQUENT STAGE OF
THE CASE, OR WHETHER THE REQUESTED RELIEF PROPERLY CAN BE GRANTED. 
/18/ IN STEFFEL WE ADOPTED PRECISELY THIS ORDER OF RESOLVING JUST SUCH
ISSUES; FIRST, WE FOUND THAT THE CASE WAS JUSTICIABLE WHEN FILED; ONLY
THEN DID WE REACH THE QUESTION WHETHER DECLARATORY RELIEF WAS PROPER IN
THE CIRCUMSTANCES AND REMAND FOR A DETERMINATION OF WHETHER WITH THE
PASSAGE OF TIME THE THREAT TO STEFFEL HAD SUBSIDED.  THERE IS NO
OCCASION FOR A REMAND FOR ANY PURPOSE WHEN THE RECORD DEMONSTRATES
RELIEF WAS NOT, AT THE OUTSET, WITHIN THE DISTRICT COURT'S POWER TO
GRANT. 

III 

I AM CONCERNED BY THE COURT'S FAILURE TO DECIDE WHETHER, IN THE
CIRCUMSTANCES HERE, PETITIONERS CAN ATTACK COLLATERALLY THEIR
CONVICTIONS UNDER THE ORDINANCE.  THE COURT'S RETICENCE SHOULD NOT BE
VIEWED AS ENDORSING THE APPROPRIATENESS OF COLLATERAL ATTACK UNDER SEC.
1983 IN THESE OR ANY OTHER CIRCUMSTANCES.  BUT THIS ISSUE WAS DECIDED
BY THE DISTRICT COURT AND, MR. JUSTICE HARLAN ONCE SAID IN SIMILAR
CIRCUMSTANCES, THE COURT'S REMAND PLACES THE DISTRICT COURT "IN THE
UNCOMFORTABLE POSITION WHERE IT WILL HAVE TO CHOOSE BETWEEN ADHERING TO
ITS PRESENT DECISION--IN MY VIEW A FAITHFUL REFLECTION OF THIS COURT'S
PAST CASES--OR TREATING THE REMAND AS AN OBLIQUE INVITATION FROM THIS
COURT TO (REVERSE ITS DECISION)."  SCHOLLE V. HARE, 369 U.S. 429, 434
(1962) (DISSENTING OPINION).     EQUALLY IMPORTANT, THE REVERSAL AND
REMAND OF THIS CASE--ESPECIALLY IN AN OPINION STATING THAT "THE
PRINCIPLES AND APPROACH OF STEFFEL ARE APPLICABLE" TO PETITIONERS'
REQUEST FOR DECLARATORY RELIEF--ARE LIKELY TO CAUSE FEDERAL COURTS ALL
OVER THE COUNTRY TO THINK THAT STEFFEL MUST BE READ AS HAVING A FAR
WIDER APPLICATION THAN THAT DECISION ITSELF WARRANTS.  SUCH A READING
WOULD EXPAND THE NUMBER AND, MORE IMPORTANTLY, THE KINDS OF OCCASIONS
IN WHICH FEDERAL DISTRICT COURTS PROPERLY CAN BE CALLED UPON TO ISSUE
DECLARATIONS AS TO THE CONSTITUTIONALITY OF STATE STATUTES.  I PERCEIVE
NO REASON WHY WE SHOULD REFRAIN FROM DECIDING THE THRESHOLD
JUSTICIABILITY ISSUE, AN ISSUE CRITICAL TO PROPER UNDERSTANDING AND
APPLICATION OF THE STEFFEL DECISION.  AGAIN IN THE WORDS OF MR. JUSTICE
HARLAN, DISSENTING FROM THE REMAND OF A CASE THAT AROSE IN THE WAKE OF
BAKER V. CARR, 369 U.S. 186 (1962):  " BOTH THE ORDERLY SOLUTION OF
THIS PARTICULAR CASE, AND THE WIDER RAMIFICATIONS THAT ARE BOUND TO
FOLLOW IN THE WAKE OF (STEFFEL), DEMAND THAT THE COURT COME TO GRIPS
NOW WITH THE BASIC ISSUE TENDERED BY THIS CASE."  SCHOLLE V. HARE,
SUPRA, AT 345. 

IN SUM, I THINK THE COURT SHOULD RESOLVE THE MAJOR ISSUES PROPERLY
BEFORE US, ISSUES AS TO WHICH THERE IS NO FACTUAL DISPUTE, RATHER THAN
DELAY THEIR RESOLUTION, IMPOSE UNNECESSARY BURDENS UPON THE LITIGANTS,
AND RISK WIDESPREAD UNCERTAINTY AMONG THE FEDERAL JUDICIARY. 

/1/ THE COMPLAINT, COUCHED IN CONCLUSORY TERMS, DOES NOT
SPECIFICALLY REQUEST A DECLARATION THAT THE ORDINANCE CANNOT BE APPLIED
TO PETITIONERS IN THE FUTURE.  PETITIONERS' BRIEF AND ARGUMENT IN THIS
COURT NEVERTHELESS FOCUSED PRIMARILY ON THIS RELIEF, AND THE COURT
ACCEPTS THIS GENEROUS READING OF THE VAGUE AND GENERAL LANGUAGE OF THE
COMPLAINT. 

/2/ ANTE, AT 428 - 429, N. 3. 

/3/ RESPONDENTS DID NOT EXPRESSLY PLEAD RES JUDICATA GENERALLY IN
BAR OF PETITIONERS' CONSTITUTIONAL CLAIM.  SEE FED. RULE CIV. PROC. 8
(C).  THEY DID, HOWEVER, ARGUE THAT BY THEIR PLEAS OF NOLO CONTENDRE
PETITIONERS HAD WAIVED ANY RIGHT TO RELITIGATE THE VALIDITY OF THE
MUNICIPAL COURT CONVICTIONS IN FEDERAL COURT.  PETITIONERS' COUNSEL DO
NOT DENY THAT THIS ISSUE IS HERE.  INDEED, THEY FRANKLY RECOGNIZE THAT
THEIR CLIENTS ARE MAKING "A COLLATERAL CHALLENGE TO THE VALIDITY OF A
STATE CRIMINAL CONVICTION."  BRIEF FOR PETITIONERS 6.  SEE ALSO ID., AT
12 ET SEQ. 

/4/ THE DISTRICT COURT, IN DISMISSING PETITIONERS' COMPLAINT, RELIED
ON THEIR PLEAS OF NOLO CONTENDRE AND THEIR FAILURE TO EXHAUST STATE
REMEDIES.  APP. 62.  THE COURT OF APPEALS AFFIRMED WITHOUT OPINION. 

/5/ ONE OF THE TWO "QUESTIONS PRESENTED" BY PETITIONERS WAS WHETHER
THEY MAY "SEEK FEDERAL EQUITABLE RELIEF EXPUNGING ANY RECORD OF THEIR
ARREST AND CONVICTION."  BRIEF FOR PETITIONERS 2. 

/6/ IN PREISER V. RODRIQUEZ, 411 U.S. 475, 497 (1973), THE COURT
NOTED THAT SEVERAL OF THE COURTS OF APPEALS HAD HELD "RES JUCICATA . .
. FULLY APPLICABLE TO A CIVIL RIGHTS ACTION BROUGHT UNDER SEC. 1983"
AND THAT NEITHER STATE CONVICTIONS THAT DO NOT RESULT IN CONFINEMENT
NOR STATE CIVIL JUDGMENTS CAN BE COLLATERALLY IMPEACHED IN FEDERAL
COURTS.  INDEED, MOST OF THE CIRCUITS HAVE CONSIDERED THIS QUESTION,
EITHER IN THE CONTEXT OF A PRIOR STATE-COURT CIVIL OR CRIMINAL
JUDGMENT, AND EACH HAS SO RULED.  SEE MASTRACCHIO V. RICCI, 498 F.2D
1257 (CA1 1974), CERT. DENIED, 420 U.S. 909 (1975); LACKAWANNA POLICE
BENEVOLENT AAN.  V. BALEN, 446 F.2D 52 (CA2 1971); KAUFFMAN V. MOSS,
420 F.2D 1270 (CA3), CERT. DENIED, 400 U.S. 846 (1970); SHANK V.
SPRUILL, 406 F.2D 756 (CA5 1969); COOGAN V. CINCINNATI BAR ASSN., 431
F.2D 1209 (CA6 1970); WILLIAMS V. LIBERTY, 461 F.2D 325 (CA7 1972);
JENSON V. OLSON, 353 F.2D 825 (CA8 1965); SCOTT V. CALIFORNIA SUPREME
COURT, 426 F.2D 300 (CA9 1970); METROS V. UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO, 441 F.2D 313 (CA10 1970).  BUT CF. NEY V.
CALIFORNIA, 439 F.2D 1285, 1288 (CA. 1971).  THE GENERAL PRINCIPLE THAT
FINAL JUDGMENTS HAVE RES JUDICTA EFFECT AND ARE BINDING ON THE PARTIES
IS, OF COURSE, SUBJECT TO THE QUALIFICATION THAT VOID JUDGMENTS MAY BE
COLLATERALY IMPEACHED.  RESTATEMENT, JUDGMENTS SEC. 11 (1942). 
MOREOVER, THE QUESTION WHETHER A JUDGMENT IS VOID--I.E., "WITHOUT RES
JUDICTA EFFECT FOR PURPOSES OF THE MATTER AT HAND"--, DEPENDS, ABSENT
ANY INDICATION OF CONTRARY CONGRESSIONAL INTENT, ON THE NATURE OF THE
DEFECT ALLEGED AND THE GRAVITY OF THE HARM ASSERTED, VIEWED IN LIGHT OF
THE POWERFUL PUBLIC INTEREST IN FINALITY OF LITIGATION.  SCHLESINGER V.
COUNCILMAN, 420 U.S. 738, 752 - 753 (1975).  THIS GENERAL ANALYSIS
APPLIES AS MUCH TO THE SCOPE OF COLLATERAL ATTACK IN HABEAS CORPUS
PROCEEDINGS AS TO THE SCOPE OF COLLATERAL ATTACK IN OTHER FEDERAL CIVIL
ACTIONS.  SEE SCHNECKLOTH V. BUSTAMONTE, 412 U.S. 218, 256 - 275 (1973)
(POWELL, J., CONCURRING).  IN MY VIEW, THE HARM ASSERTED IN HABEAS
CORPUS PROCEEDINGS--RESTRAINT ON LIBERTY--MAY JUSTIFY A BROADER SCOPE
OF COLLATERAL ATTACK THAN WOULD THE KINDS OF INJURY NORMALLY CONCERNED
IN ACTIONS UNDER SEC. 1983. 

/7/ PETITIONERS DO NOT CLAIM THAT THEIR NOLO CONTENDERE PLEAS WERE
EITHER INVOLUNTARY OR BASED ON INADEQUATE LEGAL ADVICE.  SEE MC MANN V.
RICHARDSON, 397 U.S. 759 (1970).  NOR IS THIS CASE LIKE BLACKLEDGE V.
PERRY, 417 U.S. 21 (1974).  IN THAT CASE THE COURT STATED THAT THE DUE
PROCESS RIGHT AT ISSUE, CLOSELY ANALOGOUS TO THE CONSTITUTIONAL DOUBLE
JEPORADY BAR, WAS "THE RIGHT NOT TO BE HALED INTO COURT AT ALL . . . ,"
SO THAT "(THE VERY INITIATION OF THE PROCEEDINGS . . . OPERATED TO DENY
(PETITIONER) DUE PROCESS OF LAW."  ID., AT 30 - 31.  THE COURT RULED,
THEREFORE, THAT PETITIONER'S GUILTY PLEA DID NOT PRECLUDE FEDERAL
HABEAS CORPUS RELIEF.  IN THIS CASE, HOWEVER, PETITIONERS' CLAIM IS
THAT THE ORDINANCE UNDER WHICH THEY HAD BEEN CHARGED IN
UNCONSTITUTIONAL.  THE ALLEGED CONSTITUTIONAL INFIRMITY THUS LIES NOT
IN THE "INITIATION OF THE PROCEEDINGS" BUT IN THE EVENTUAL IMPOSITION
OF PUNISHMENT THAT, ASSERTEDLY, THE STATE CANNOT CONSTITUIONALLY
EXACT. 

/8/ ALTHOUGH PETITIONERS COULD HAVE SECURED A TRIAL DE NOVE IN STATE
COURT, THEY CHOSE TO FORGO THAT OPPORTUNITY, CLAIMING THEY DID NOT WANT
TO RISK INCREASED FINES.  THERE IS NO INDICATION THAT PETITIONERS'
CHOICE WAS ANYTHING OTHER THAN KNOWING AND INTELLIGNET, NOR DOES THE
POSSIBILITY OF INCREASED FINES CONSTITUTE THE KIND OF "GRISLY" CHOICE
AT ISSUE IN FAY V. NOIA, 372 U.S. 391, 440 (1963).  SEE DEVELOPMENTS IN
THE LAW--FEDERAL HABEAS CORPUS, 83 HARV. L. REV. 1038, 1106 - 1109
(1970). 

/9/ THE QUESTION IS NOT ONE OF ELECTION OF JUDICIAL FORA, AS IT WAS
IN MONROE V. PAPE, 365 U.S. 167 (1961), BUT INSTEAD WHETHER A FINAL
STATE COURT JUDGMENT MAY BE COLLATERALLY IMPEACHED ON GROUNDS THAT
COULD HAVE BEEN, BUT DELIBERATELY WERE NOT, RAISED IN THE STATE COURT. 

/10/ PETITIONERS' COMPLAINT ITSELF NOWHERE ALLEGED THAT THEY FEARED
OR HAD REASON TO FEAR FUTURE ARREST UNDER DALLAS ORDINANCE.  THE
AFFIDAVIT OF PETITIONER LOVE, SUBMITTED TO THE DISTRICT COURT, STATED
THAT, SINCE HIS ARREST, HE HAD BEEN "VERY NERVOUS ABOUT BEING OUT IN
PUBLIC PLACES, ESPECIALLY AT NIGHT AND IN AREAS OF TOWN WHERE THERE ARE
NUMEROUS POLICE OFFICERS."  APP.  53. 

/11/ APP. 68.  SEE BREIF FOR PETITIONERS 8, 10. 

/12/ THE SEVERAL REFERENCES IN THE COURT'S OPINION TO "THREATS OF
PROSECUTION" MUST RELATE TO THE AVERMENT OF GENERAL THREAT TO THE
ENTIRE COMMUNITY, AS THE RECORD IS WHOLLY DEVOID OF ANY INDICATION OF
PRESENT THREAT TO PETITIONERS.  OF COURSE, IT IS POSSIBLE THAT ANY
CITIZENS, INCLUDING PETITIONERS, MAY BE ARRESTED UNDER THIS ORDINANCE. 
BUT "PLEADINGS MUST BE SOMETHING MORE THAN AN INGENIOUS ACADEMIC
EXERCISE IN THE CONCEIVABLE."  UNITED STATES V. SCRAP, 412 U.S. 669,
688 (1973).  AND THOUGH THE PLEADINGS MUST BE CONSTRUED LIBERALLY, FED.
RULE CIV. PROC. 8(F), THE COMPLAINT AND SUPPORTING MATERIALS IN THIS
CASE MAKE OUT AT MOST THAT PETITIONERS GENUINELY FEAR FUTURE ARREST AND
PROSECUTION.  BUT MORE THAN SPECULATIVE AND SUBJECTIVE CONCERN MUST BE
SHOWN, AS OTHERWISE FEDERAL COURTS WOULD BE OPEN TO VIRTUALLY ANY
CITIZEN WHO DESIRED AN ADVISORY OPINION.  AS MR. JUSTICE STEWART STATED
IN HIS CONCURRING OPINION IN STEFFEL V. THOMPSON, 415 U.S. 452 (1974):
" OUR DECISION . . . MUST NOT BE UNDERSTOOD AS AUTHORIZING THE
INVOCATION OF FEDERAL DECLARATORY JUDGMENT JURISDICTION BY A PERSON WHO
THINKS A STATE CRIMINAL LAW IS UNCONSTITUTIONAL, EVEN . . . IF HE
HONESTLY ENTERTAINS THE SUBJECTIVE BELIEF THAT HE MAY NOW OR IN THE
FUTURE BE PROSECUTED UNDER IT."  ID., AT 476. 

/13/ IN ALL OF THESE CASES THE STATUTES WERE NOT, THROUGH LACK OF
ENFORCEMENT, PRACTICAL AND LEGAL NULLITIES.  SEE POE V. ULLMAN, 367
U.S. 497 (1961). 

/14/ THE CLOSEST THE COMPLAINT COMES TO ADDRESSING THE
JUSTICIABILITY PROBLEM IS THE FOLLOWING PASSAGE:  " THE SWEEPING SCOPE
OF THIS ORDINANCE MEANS THAT NO CITIZEN IS SAFE TO CARRY ON ANY CONDUCT
AT ANY PLACE IN THE CITY OF DALLAY, UNLESS HE CAN BE TELEPATHIC AND BE
ASSURED THAT HIS BEHAVIOR DOES NOT ALARM OR CONCERN A POLICE OFFICER. 

THE PROVISION IS VIOLATIVE OF, AND HAS A CHILLING EFFECT UPON, THE
FREE EXERCISE OF THE FIRST AMENDMENT RIGHTS OF FREEDOM OF ASSOCIATION
AND ASSEMBLEY, AS WELL AS FREEDOM OF SPEECH, AND SIMILAR CHILLING
EFFECT UPON THE FUNDAMENTAL RIGHT OF FREEDOM OF MOVEMENT.  SECTION 31 -
60 IS SO SWEEPING IN ITS POTENTIAL APPLICABILITY THAT ANY GATHERING,
ASSEMBLEY, SPEECH IN ITS POTENTIAL APPLICABILITY THAT ANY GATHERING,
ASSEMBLY, SPEECH OR OTHER NON-CRIMINAL BEHAVIOR MAY SUBJECT THE
CITIZENS OF DALLAS TO ARREST AND CONVICTION UNDER ITS TERMS."  APP.  6
7.  (EMPHASIS ADDED.) 

/15/ SHORN OF ITS COMPLETELY UNSUBSTANTIATED FIRST AMENDMENT CLAIMS,
THE GRAVAMEN OF PETITIONERS' COMPLAINT IS THAT THE ORDINANCE IS
UNCONSTITUTIONALLY VAGUE.  BUT THE OBJECTION TO VAGENESS, PURELY AS A
MATTER OF DUR PROCESS AND DEVOID OF FIRST AMENDMENT RAMIFICATIONS,
RESTS IN THE POSSIBILITY OF DISCRIMITORY ENFORCEMENT AND IN THE
UNFAIRNESS OF PUNISHING A PERSON WHO COULD NOT REASONABLY HAVE
PREDICTED THAT THE CONDUCT IN WHICH HE ENGAGED WAS CRIMINAL.  SEE,
E.G., GRAYNED V. CITY OF ROCKFORD, 408 U.S. 104, 108 - 109 (1972).  AS
A GENERAL MATTER, THEREFORE, THE HARM MATURES AND THE CONSTITUTIONAL
OBJECTION BECOMES JUSTICABLE ONLY WHEN AND AS TO THOSE AGAINST WHOM THE
STATUTE IS ENFORCED. 

/16/ FOR THE PURPOSE OF RULING ON RESPONDENTS' MOTION TO DISMISS,
THE DISTRICT COURT "ASSUMED AS TRUE EVERY FACTUAL ALLEGATION IN
(PETITIONERS') COMPLAINT AND ALSO ASSUMED) THAT THE CITY OF DALLAS WILL
CONTINUE TO ENFORCE THE ORDINANCE AND THIS MAY SUBJECT (PETITIONERS) TO
FUTURE ARREST AND PROSECUTION UNDER THE ORDINANCE."  APP. 64.  BUT IN
DISCUSSING REED V. GIARRUSSO, 462 F.2D 706 (CA5 1972), THE DISTRICT
COURT STATED THAT THE COURT OF APPEALS IN THAT CASE HAD CONCLUDED, "AS
THIS COURT DOES IN THE CASE . . . SUB JUDICE, THAT (PETITIONERS) DID
HAVE STANDING TO SUE SINCE THEY HAD BEEN ARRESTED AND ALLEGED THAT THEY
WILL CONTINUE TO ENGAGE IN THE SAME CONDUCT WHICH BROUGHT ABOUT THEIR
ARRESTS AND THAT THEY FEAR FUTURE ARRESTS AND PROSECUTIONS."  APP.  65
N. 4 (EMPHASIS ADDED). 

/17/ THE COURT'S CONCERN AS TO THE EXISTENCE OF A CASE OR
CONTROVERSY "TODAY" IS EXPRESSLY RELATED TO A CONCESSION MADE IN ORAL
ARGUMENT BY COUNSEL FOR PETITIONERS MORE THAN TWO YEARS AFTER THE
FILING OF THIS SUIT, A CONCESSION WHICH STRONGLY SUGGESTS THAT THE
COUNSEL WERE ARGUING THE CASE AS SOME SORT OF "PRIVATE ATTORNEYS
GENERAL" ON BEHALF OF "THE CITIZENS OF DALLAS," NOT ON BEHALF OF
PETITIONERS.  APPARENTLY PETITIONERS ARE NO LONGER INTERESTED IN THE
CASE AND WERE NOT EVEN IN COMMUNICATION WITH THE COUNSEL WHO PURPORT TO
REPRESENT THEM. 

/18/ AS MR. JUSTICE FRANKFURTER STATED IN HIS OPINION FOR THE COURT
IN LONGSHOREMEN'S UNION V. BOYD, 347 U.S. 222, 223 (1954):  "(APPELLEE
CONTENDS THAT THE DISTRICT COURT . . . SHOULD HAVE DISMISSED THE SUIT
FOR WANT OF A 'CASE OF CONTROVERSY,' FOR LACK OF STANDING . . . TO
BRING THIS ACTION . . . SINCE THE FIRST OBJECTION IS CONCLUSIVE, THERE
IS AN END OF THE MATTER."  SEE O' SHEA V. LITTLETON, 414 U.S. 488, 504
505 (1974) (BLACKMUN, J., CONCURRING IN PART). 

BURT NEUBORNE ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE WALTER W. STEELE, JR., JOHN E. KENNEDY, JOEL GORA, AND
MELVIN L. WULF. 

DOUGLAS H. CONNER ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS N. ALEX BICKLEY. 
..END :






















JOHNSON V. RAILWAY EXPRESS AGENCY, 421 U.S. 454 


       JOHNSON V. RAILWAY EXPRESS AGENCY, INC., ET AL.

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 1543.  ARGUED DECEMBER 11, 1974--DECIDED MAY 19,

           1975; 489 F.2D 525, AFFIRMED. 


    THE TIMELY FILING OF AN EMPLOYMENT DISCRIMINATION CHARGE WITH

  THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PURSUANT TO SEC. 706

  OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, DOES NOT TOLL THE

  RUNNING OF THE LIMITATION PERIOD APPLICABLE TO AN ACTION, BASED

  ON THE SAME FACTS, BROUGHT UNDER 42 U.S.C. SEC. 1981.  THUS, IN

  THIS CASE WHERE PETITIONER WAITED OVER THREE AND ONE-HALF YEARS

  AFTER HIS CAUSE OF ACTION FOR RACIAL EMPLOYMENT DISCRIMINATION

ACCRUED BEFORE INSTITUTING AN UNDER 42 U.S.C. SEC. 1981, THAT

  SUIT IS TIME BARRED BY THE ONE YEAR LIMITATION PEROID IMPOSED BY

  APPLICABLE STATE LAW NOTWITHSTANDING THE FACT THAT PETITIONER HAD

  FILED THE TITLE VII CHARGE BEFORE THAT LIMITATION HAD EXPIRED. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, POWELL, AND REHNQUIST, JJ.,

  JOINED.  MARSHALL, J., FILED AN OPINION CONCURRING IN PART AND

  DISSENTING IN PART, IN WHICH DOUGLAS AND BRENNAN, JJ., JOINED,

  POST, P. 468. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE ISSUE WHETHER THE TIMELY FILING OF A CHARGE
OF EMPLOYMENT DISCRIMINATION WITH THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION (EEOC), PURSUANT TO SEC. 706 OF TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, 78 STAT. 259, 42 U.S.C. SEC. 2000E-5, TOLLS THE
RUNNING OF THE PERIOD OF LIMITATION APPLICABLE TO AN ACTION, BASED ON
THE SAME FACTS, INSTITUTED UNDER 42 U.S.C. SEC. 1981. 

        I 

PETITIONER, WILLIE JOHNSON, JR., IS A NEGRO.  HE STARTED TO WORK FOR
RESPONDENT RAILWAY EXPRESS AGENCY, INC. (REA), IN MEMPHIS TENN., IN THE
SPRING OF 1964 AD AN EXPRESS HANDLER.  ON MAY 31, 1967, WHILE STILL
EMPLOYED BY REA, BUT NOW AS A DRIVER RATHER THAN AS A HANDLER,
PETITIONER, WITH OTHERS, TIMELY FILED WITH THE EEOC A CHARGE THAT REA
WAS DISCRIMINATING AGAINST ITS NEGRO EMPLOYEES WITH RESPECT TO
SENIORITY RULES AND JOB ASSIGNMENTS.  HE ALSO CHARGED THE RESPONDENT
UNIONS, BROTHERHOOD OF RAILWAY CLERKS TRI-STATE LOCAL AND BROTHERHOOD
OF RAILWAY CLERKS LILY OF THE VALLEY LOCAL, WITH MAINTAINING RECIALLY
SEGREGATED MEMBERSHIPS (WHITE AND NEGRO RESPECTIVELY).  THREE WEEKS
LATER, ON JUNE 20, REA TERMINATED PETITIONER'S EMPLOYMENT.  PETITIONER
THEN AMENDED HIS CHARGE TO INCLUDE AN ALLEGATION THAT HE HAD BEEN
DISCHARGED BECAUSE OF HIS RACE. 

THE EEOC ISSUED ITS " FINAL INVESTIGATION REPORT" ON DECEMBER 22,
1967.  APP. 14A.  THE REPORT GENERALLY SUPPORTED PETITIONER'S CLAIMS OF
RACIAL DISCRIMINATION.  IT WAS NOT UNTIL MORE THAT TWO YEARS LATER,
HOWEVER, ON MARCH 31, 1970, THAT THE COMMISSION RENDERED ITS DECISION
FINDING REASONABLE CAUSE TO BELEIVE PETITIONER'S CHARGES.  AND 9-1/2
MORE MONTHS WENT BY BEFORE THE EEOC, ON JANUARY 15, 1971, PURSUANT TO
42 U.S.C. SEC. 2000E-5(E), AS IT THEN READ, GAVE PETITIONER NOTICE OF
HIS RIGHT TO INSTITUTE A TITLE VII CIVIL ACTION AGAINST THE RESPONDENTS
WITHIN 30 DAYS.  /1/ 

AFTER RECEIVING THIS NOTICE, PETITIONER ENCOUNTERED SOME DIFFICULTY
IN OBTAINING COUNSEL.  THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF TENNESSEE, ON FEBRUARY 1I, 1971, PERMITTED PETITIONER TO
FILE THE RIGHT-TO-SUE LETTER WITH THE COURT'S CLERK AS A COMPLAINT, IN
SATISFACTION OF THE 30-DAY REQUIREMENT.  THE COURT ALSO GRANTED
PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS, AND IT APPOINTED COUNSEL
TO REPRESENT HIM.  ON MARCH 18, COUNSEL FILED A " SUPPLEMENTAL
COMPLAINT" AGAINST REA AND THE TWO UNIONS, ALLEGING RACIAL
DISCRIMINATION ON THE PART OF THE DEFENDANTS, IN VIOLATION OF TITLE VII
OF THE 1964 ACT AND OF 42 U.S.C. SEC 1981.  THE UNIONS AND REA
RESPECTIVELY MOVED FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR
DISMISSAL OF ALLCLAIMS. 

THE DISTRICT COURT DISMISSED THE SEC. 1981 CLAIMS AS BARRED BY
TENNESSEE'S ONE-YEAR STATUTE OF LIMITATIONS.  TENN. CODE ANN. SEC. 28 -
304 (SUPP. 1974).  /2/ PETITIONER'S REMAINING CLAIMS WERE DISMISSED ON
OTHER GROUNDS.  /3/ 

IN HIS APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT, PETITIONER, WITH RESPECT TO HIS SEC. 1981 CLAIMS, ARGUED THAT
THE RUNNING OF THE ONE-YEAR PERIOD OF LIMITATION WAS SUSPENDED DURING
THE PENDENCY OF HIS TIMELY FILED ADMINISTRATIVE COMPLAINT WITHE EEOC
UNDER TITLE VII.  THE COURT OF APPEALS REJECTED THIS ARGUMENT.  489
F.2D 525 (1973).  SEE ALSO JENKINS V. GENERAL MOTORS CORP., 354 F.
SUPP. 1040, 1045 - 1046 (DEL. 1973).  BECAUSE OF AN APPARENT CONFLICT
BETWEEN THAT RULING, AND LANGUAGE AND HOLDINGS IN CASES FROM OTHER
CIRCUITS, /4/ WE GRANTED CERTIORARI RESTRICTED TO THE LIMITATION
ISSUE.  WE INVITE THE SOLICITOR GENERAL TO FILE A BRIEF AS AMICUS
CURIAE EXPRESSING THE VIEWS OF THE UNITED STATES.  417 U.S. 929
(1974). 

        II 

A. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 WAS ENACTED "TO ASSURE
EQUALITY OF EMPLOYMENT OPPORTUNITIES BY ELIMINATING THOSE PRACTICES AND
DEVICES THAT DISCRIMINATE ON THE BASIS OF RACE, COLOR, RELIGION, SEX,
OR NATIONAL ORGIN."  ALEXANDER V. GARDNER-DENVER CO., 415 U.S. 36, 44
(1974).  IT CREATES STATUTORY RIGHTS AGAINST INVIDIOUS DISCRIMINATION
IN EMPLOYMENT AND ESTABLISHES A COMPREHENSIVE SCHEME FOR THE
VINDICATION OF THOSE RIGHTS. 

ANYONE AGGRIEVED BY EMPLOYMENT DISCRIMINATION MAY LODGE A CHARGE
WITH THE EEOC.  THAT COMMISSION IS VESTED WITH THE "AUTHORITY TO
INVESTIGATE INDIVIDUAL CHARGES WITH REQUIREMENTS OF TITLE VII, AND TO
INSTITUTE CIVIL ACTIONS AGAINST EMPLOYERS OR UNIONS NAMED IN A
DISCRIMINATION CHARGE."  IBID.  THUS, THE COMMISSION ITSELF MAY
INSTITUTE A CIVIL ACTION.  42 U.S.C. SEC. 2000E-5(F)(1) (1970 ED.,
SUPP. III).  IF, HOWEVER, THE EEOC IS NOT SUCCESSFUL IN OBTAINING
"VOLUNTARY COMPLIANCE" AND, FOR ONE REASON OF ANOTHER, CHOOSES NOT TO
SUE ON THE CLAIMANT'S BEHALF, THE CLAIMANT, AFTER THE PASSAGE OF 180
DAYS, MAY DEMAND A RIGHT-TO-SUE LETTER AND INSTITUTE THE TITLE VII
ACTION HIMSELF WITHOUT WAITING FOR THE COMPLETION OF THE CONCILIATION
PROCEDURES.  42 U.S.C. SEC. 2000E-5(F)(1) (1970) ED., SUPP. III).  SEE
H.R. REP. NO. 92 - 238, P. 12 (1971); MC DONNELL DOUGLAS CORP. V.
GREEN, 411 U.S. 792 (1973). 

IN THE CLAIMANT'S SUIT, THE FEDERAL DISTRICT COURT IS EMPOWERED TO
APPOINT COUNSEL FOR HIM, TO AUTHORIZE THE COMMENCEMENT OF THE ACTION
WITHOUT THE PAYMENT OF FEES, COSTS, OR SECURITY, AND EVEN TO ALLOW AN
ATTORNEY'S FEES.  42 U.S.C. SEC. 2000E-5(F)(1) (1970 ED., SUPP. III)
AND 42 U.S.C. SEC. 2000E-5(K).  WHERE INTENTIONAL ENGAGEMENT IN
UNLAWFUL DISCRIMINATION IS PROVED, THE COURT MAY AWARD BACKPAY AND
ORDER "SUCH AFFIRMATIVE ACTION AS MAY BE APPROPRIATE."  42 U.S.C. SEC.
2000E-5(G) (1970 ED., SUPP. III).  THE BACKPAY, HOWEVER, MAY NOT BE FOR
MORE THAN THE TWO-YEAR PERIOD PRIOR TO THE FILING OF THE CHARGE WITH
THE COMMISSION.  IBID.  SOME DISTRICT COURTS HAVE RULED THAT NEITHER
COMPENSATORY NOR PUNITIVE DAMAGES MAY BE AWARDED IN THE TITLE VII
SUIT.  /5/

DESPITE TITLE VII'S RANGE AND ITS DESIGN AS A COMPREHENSIVE SOLUTION
FOR THE PROBLEM OF INVIDIOUS DISCRIMINATION IN EMPLOYMENT, THE
AGGRIEVED INDIVIDUAL CLEARLY IS NOT DEPRIVED OF OTHER REMEDIES HE
POSSESSES AND IS NOT LIMITED TO TITLE VII OF HIS SEARCH FOR RELIEF. 
"(THE LEGISLATIVE HISTORY OF TITLE VII MINIFESTS A CONGRESSIONAL INTENT
TO ALLOW AN INDIVIDUAL TO PURSUE INDEPENDENTLY HIS RIGHTS UNDER BOTH
TITLE VII AND OTHER APPLICABLE STATE AND FEDERAL STATUTES."  ALEXANDER
V. GARDNER-DENVER CO., 415 U.S., AT 48.  IN PARTICULAR CONGRESS NOTED
"THAT THE REMEDIES AVAILABLE TO THE INDIVIDUAL UNDER TITLE VII ARE CO
EXTENSIVE WITH THE INDIVIDUAL'S RIGHT TO SUE UNDER THE PROVISIONS OF
THE CIVIL RIGHT'S ACT OF 1866, 42 U.S.C. SEC. 1981, ADN THAT THE TWO
PROCEDURES AUGMENT EACH OTHER AND ARE NOT MUTUALLY EXCLUSIVE."  H.R.
REP. NO. 92 - 415, P. 24 (1971).  LATER, IN CONSIDERING THE EUQAL
EMPLOYMENT OPPORTUNITY ACT OF 1972, THE SENATE REJECTED AN AMENDMENT
THAT WOULD HAVE DEPRIVED A CLAIMAINT OF ANY RIGHT TO SUE UNDER SEC.
1981.  118 CONG. REC. 3371 - 3373 (1972). 

B. TITLE 42 U.S.C. SEC. 1981, BEING THE PRESENT CODIFICATION OF SEC.
16 OF THE CENTURY-OLD CIVIL RIGHTS ACT OF 1870, 16 STAT. 144, ON THE
OTHER HAND, ON ITS FACE RELATES PRIMARILY TO RACIAL DISCRIMINATION IN
THE MAKING AND ENFORCEMENT OF CONTRACTS.  ALTHOUGH THIS COURT HAS NOT
SPECIFICALLY SO HELD, IT IS WELL SETTLED AMONG THE FEDERAL COURTS OF
APPEALS /6/ --AND WE NOW JOIN THEM-- THAT SEC. 1981 AFFORDS A FEDERAL
REMEDY AGAINST DISCRIMINATION IN PRIVATE EMPLOYMENT ON THE BASIS OF
RACE.  AN INDIVIDUAL WHO ESTABLISHES A CAUSE OF ACTION UNDER SEC. 1981
IS ENTITLED TO BOTH EQUITABLE AND LEGAL RELIEF, INCLUDING COMPENSATORY
AND, UNDER CERTAIN CIRCUMSTANCES, PUNITIVE DAMAGES SEE, E.G., CAPERCI
V. HUNTOON, 397 F.2D 799 (CA1), CERT. DENIED, 393 U.S. 940 (1968);
MANSEL V. SAUNDERS, 372 F.2D 573 (CA5 1967).  AND A BACKPAY AWARD UNDER
SEC. 1981 IS NOT RESTRICTED TO THE TWO YEARS SPECIFIED FOR BACKPAY
RECOVERY UNDER TITLE VII. 

LATTER IS MADE INAPPLICABLE TO CERTAIN EMPLOYERS.  42 U.S.C. SEC.
2000EB) (1970 ED., SUPP. III).  ALSO, TITLE VII OFFERS ASSISTANCE IN
INVESTIGATION, CONCILIATION, COUNSEL, WAIVER OF COURT COSTS, AND
ATTORNEY'S FEES, ITEMS THAT ARE UNAVAILABLE AT LEAST UNDER THE SPECIFIC
TERMS OF SEC 1981. 

 III 

PETITIONER, AND THE UNITED STATES AS AMICUS CURIAE, CONCEDE, AS THEY
MUST, THE INDEPENDENCE OF THE AVENUES OF RELIEF RESPECTIVELY AVAILABLE
UNDER TITLE VII AND THE OLDER SEC. 1981.  SEE JONES V. ALFERD H. MAYER
CO., 392 U.S. 409, 416 - 417, N. 20 (1968).  FURTHER, IT HAS BEEN NOTED
THAT THE FILING OF A TITLE VII CHARGE AND RESORT TO TITLE VII'S
ADMINISTRATIVE MACHINERY ARE NOT PREREQUISITES FOR THE INSTITUTION OF A
SEC. 1981 ACTION.  LONG V. FORD MOTOR CO., 496 F.2D 500 - 504 (CA6
1974); CALDWELL V. NATIONAL BREWING CO., 443 F.2D 1044, 1046 (CA5
1971), CERT. DENIED, 405 U.S. 916 (1972); YOUNG V. INTERNATIONAL TEL. &
TEL. CO., 438 F.2D 757, 761 - 763 (CA3 1971).  CF. WATERS V. WISCONSIN
STEEL WORKS, 427 F.2D 476, 487 (CA(), CERT. DENIED SUB NOM.
INTERNATIONAL HARVESTER CO. V. WATERS, 400 U.S. 911 (1970). 

WE ARE SATISFIED, ALSO, THAT CONGRESS DID NOT EXPECT THAT A SEC.
1981 COURT ACTION USUALLY WOULD BE RESORTED TO ONLY UPON COMPLETION OF
TITLE VII PROCEDURES AND THE COMMISSION'S EFFORTS TO OBTAIN VOLUNTARY
COMPLIANCE.  CONCILIATION AND PERSUASION THROUGH THE ADMINISTRATIVE
PROCESS, TO BE SURE, OFTEN CONSTITUTE A DESIREABLE APPROACH TO
SELLTEMENT OF DISPUTES BASED ON SENSITIVE AND EMOTIONAL CHARGES OF
INVIDIOUS EMPLOYMENT DISCRIMINATION.  WE RECOGNIZE, TOO, THAT THE
FILING OF A LAWSUIT MIGHT TEND TO DETER EFFORTS AT CONCILIATION, THAT
LACK OF SUCCESS IN THE LEGAL ACTION COULD WEAKEN THE COMMISSION'S
EFFORTS TO INDUCE VOLUNTARY COMPLIANCE, AND THAT A SUIT IS PRIVATELY
OTIENTED AND NARROW, RATHER THAN BROAD, IN APPLICATION, AS SUCCESSFUL
CONCILIATION TENDS TO BE.  BUT THESE ARE THE NATURAL EFFECTS OF THE
CHOICE CONGRESS HAS MADE AVAILABLE TO THE CLAIMANT BY ITS CONFERRING
UPON HIM INDEPENDENT ADMINISTRATIVE AND JUDICIAL REMEDIES.  THE CHOICE
IS A VALUABLE ONE.  UNDER SOME CIRCUMSTANCES, THE ADMINISTRATIVE ROUTE
MAY BE HIGHLY PREFERRED OVER THE LIGIGATORY; UNDER OTHERS, THE REVERSE
MAY BE TRUE.  WE ARE DISINCLINED, IN THE FACE OF CONGRESSIONAL EMPHASIS
UPON THE EXISTENCE AND INDEPENDENCE OF THE TWO REMEDIES, TO INFER ANY
POSITIVE PREFERENCE FOR ONE OVER THE OTHER, WITHOUT ANY MORE DEFINITE
EXPRESSION IN THE LEGISLATION CONGRESS HAS ENACTED, AS, FOR EXAMPLE, A
PROSCRIPTION OF A SEC. 1981 ACTION WHILE AN EEOC CLAIM IS PENDING. 

WE GENERALLY CONCLUDE, THEREFORE, THAT THE REMEDIES AVAILABLE UNDER
TITLE VII AND UNDER SEC 1981, ALTHOUGH RELATED, AND ALTHOUGH DIRECTED
TO MOST OF THE SAME ENDS, ARE SEPARATE, DISTINCT, AND INDEPENDENT. 
WITH THIS BASE ESTABLISHED, WE TURN TO THE LIMITATION ISSUE. 

        IV 

A. SINCE THERE IS NOT SPECIFICALLY STATED OR OTHERWISE RELEVANT
FEDERAL STATUTE OF LIMITATIONS FOR A CAUSE OF ACTION UNDER SEC. 1981,
THE CONTROLLING PERIOD WOULD ORDINARILY BE THE MOST APPROPRIATE ONE
PROVIDED BY STATE LAW.  SEE O' SULLIVAN V. FELIX, 233 U.S. 318 (1914)
(CIVIL RIGHTS ACT OF 1871); AUTO WORKERS V. HOOSIER CORP., 383 U.S.
696, 701 - 704 (1966) (LABOR MANAGEMENT RELATIONS ACT); COPE V.
ANDERSON, 331 U.S. 461 (1947)) (NATIONAL BANK ACT); (SHERMAN ACT);
CAMPBELL V. HAVERHILL, 155 U.S. 610 (1895) (PATENT ACT).  FOR PURPOSES
OF THIS CASE, THE ONE-YEAR LIMITATION PERIOD IN TENN. CODE ANN. SEC. 28
- 304 (SUPP. 1974) CLEARLY AND SPECIFICALLY HAS APPLICATION.  /7/ SEE
WARREN V. NORMAN REALTY CO., --F.2D-- (CA8 1975).  THE CAUSE OF ACTION
ASSERTED BY PETITIONER ACCRUED, IF AT ALL, NOT LATER THAN JUNE 20,
1967, THE DATE OF HIS DISCHARGE.  THEREFORE, IN THE ABSENCE OF SOME
CIRCUMSTANCES THAT SUSPENDED THE RUNNING OF THE LIMITATION PERIOD,
PETITIONER'S CAUSE OF ACTION UNDER SEC. 198 1 WAS TIME BARRED AFTER
JUNE 20, 1968, OVER TWO AND ONE-HALF YEARS BEFORE PETITIONER FILED HIS
COMPLAINT. 

B. RESPONDENTS ARGUE THAT THE ONLY CIRCUMSTANCES THAT WOULD SUSPEND
OR TOLL THE RUNNING OF THE LIMITATION PERIOD UNDER SEC. 28 - 304 ARE
THOSE EXPRESSLY PROVIDED UNDER STATE LAW.  SEE TENN. CODE ANN. SECS. 28
- 106 TO 28 - 115 (1955 AND SUPP. 1974).  AND 28 - 301 (1955). 
PETITIONER CONCEDES, AT LEAST IMPLICITLY, THAT NO TOLLING CIRCUMSTANCE
DESCRIBED IN THE STATE'S STATUTES WAS PRESENT TO TOLL THE PERIOD FOR
HIS SEC. 1981 CLAIM.  HE ARGUES, HOWEVER, THAT STATE LAW SHOULD NOT BE
GIVEN SO BROAD A REACH.  HE CLAIMS THAT, ALTHOUGH THE DURATION OF THE
LIMITATION PERIOD IS BOTTOMED ON STATE LAW, IT IS FEDERAL LAW THAT
GOVERNS OTHER LIMITATIONS ASPECTS, SUCH AS TOLLING, OF A SEC. 1981
CAUSE OF ACTION.  WITHOUT LAUNCHING INTO AN EXEGESIS ON THE NICE
DISTINCTIONS THAT HAVE BEEN DRAWN IN APPLYING STATE AND FEDERAL LAW IN
THIS AREA, /8/ WE THINK IT SUFFICIES TO SAY THAT PETITIONER HAS
OVERSTATED HIS CASE.  INDEED, WE MAY ASSUME THAT HE WOULD ARGUE
VIGOROUSLY IN FAVOR OF APPLYING STATE LAW IF ANY OF THE TENNESSEE
TOLLING PROVISIONS COULD BE SAID TO ASSIST HIS CAUSE.  /9/ 

ANY PEROOD OF LIMITATION, INCLUDING THE ONE-YEAR PERIOD SPECIFIED BY
SEC. 28 - 304, IS UNDERSTOOD FULLY ONLY IN THE CONTEXT OF THE VARIOUS
CIRCUMSTANCES THAT SUSPEND IT FROM RUNNING AGAINST A PARTICULAR CAUSE
OF ACTION.  ALTHOUGH ANY STATUTE OF LIMITATIONS IS NECESSARILY
ARBITRARY, THE LENGTH OF THE PERIOD ALLOWED FOR INSTITUTING SUIT
INEVITABLY REFLECTS A VALUE JUDGMENT CONCERNING THE POINT AT WHICH THE
INTERESTS IN FAVOR OF PROTECTING VALID CLAIMS ARE OUTWEIGHED BY THE
INTERESTS IN PROHIBITING THE PROSECUTION OF STALE ONES.  IN VIRTUALLY
ALL STATUTES OF LIMITATIONS THE CHRONOLOGICAL LENGTH OF THE LIMITATION
PERIOD IS INTERRELATED WITH PROVISIONS REGARDING TOLLING, REVIVAL, AND
QUESTIONS OF APPLICATION.  IN BORROWING A STATE PERIOD OF LIMITATION
FOR APPLICATION TO A FEDERAL CAUSE OF ACTION, A FEDERAL COURT IS
RELYING ON THE STATE'S WISDOM IN SETTING A LIMIT, AND EXCEPTIONS
THERETO, ON THE PROSECUTION OF A CLOSELY ANANLGOUS CLAIM.     THERE IS
NOTHING ANOMALOUS OR NOVEL ABOUT THIS.  STATE LAW HAS BEEN FOLLOWED IN
A VARIETY OF CASES THAT RAISED QUESTIONS CONCERNING THE OVERTONES AND
DETAILS OF APPLICATION OF THE STATE LIMITATION PERIOD TO THE FEDERAL
CAUSE OF ACTION.  AUTH WORKERS V. HOOSIER CORP., 383 U.S., AT 706
(CHARACTERIZATON OF THE CAUSE OF ACTION); COPE V. ANDERSON, 331 U.S.,
AT 465 - 467 (PLACE WHERE CAUSE OF ACTION AROSE); BARNEY V. OLERICHS,
138 U.S.529 (1891) (ABSENCE FROM STATE AS A TOLLING CIRCUMSTANCE).  NOR
IS THERE ANYTHING PECULIAR TO A FEDERAL CIVIL RIGHTS ACTION THAT WOULD
JUSTIFY SPECIAL RELUNCTANCE IN APPLYING STATE LAW.  INDEED, THE EXPRESS
TERMS OF 42 U.S.C. SEC. 1988 /10/ SUGGEST THAT THE CONTRARY IS TRUE. 

C. ALTHOUGH STATE LAW IS OUR PRIMARY GUIDE IN THIS AREA, IT IS NOT,
TO BE SURE, OUR EXCLUSIVE GUIDE.  AS THE COURT NOTED IN AUTO WORKERS V.
HOOSIER CORP., 383 U.S., AT 706 - 707, CONSIDERATIONS OF STATE LAW MAY
BE DISPLACED WHERE THEIR APPLICATION WOULD BE INCONSISTENT WITH THE
FEDERAL POLICY UNDERLYING THE CAUSE OF ACTION UNDER CONSIDERATION. 

PETITIONER ARGUES THAT A FAILURE TO TOLL THE LIMITATION PERIOD IN
THIS CASE WILL CONFLICT SERIOUSLY WITH THE BROAD REMIDIAL AND HUMANE
PURPOSESS OF TITLE VII.  SPECIFICALLY, HE URGES THAT TITLE VII EMBODIES
A STRONG FEDERAL POLICY IN SUPPORT OF CONCILICATION AND VOLUNTARY
COMPLIANCE AS A MEANS OF ACHIEVING THE STATUTORY MANDATE OF EQUAL
EMPLOYMENT OPPORTUNITY.  HE SUGGESTS THAT FAILURE TO TOLL THE STATUTE
ON A SEC. 1981 CLAIM DURING THE PENDENCY OF AN ADMINISTRATIVE COMPLAINT
IN THE EEOC WOULD FORCE A PLAINTIFF INTO PREMATURE AND EXPENSIVE
LITIGATION THAT WOULD DESTROY ALL CHANCES FOR ADMINISTRATIVE
CONCILIACTION AND VOLUNTARY COMPLIANCE. 

WE HAVE NOTED THIS POSSIBILITY ABOVE AND, INDEED, IT IS CONCEIVABLE,
AND PERHAPS ALMOST TO BE EXPECTED, THAT FAILURE TO TOLL WILL HAVE THE
EFFECT OF PRESSING A CIVIL RIGHTS COMPLAINT WHO VALUES HIS SEC. 1981
CLAIM INTO COURT BEFORE THE EEOC HAS COMPLETED ITS ADMINISTRATIVE
PROCEEDING.  /11/ ONE ANSWER TO THIS, ALTHOUGH PERHAPS NOT A HIGHLY
SATISFACTORY ONE, IS THAT THE PLAINTIFF IN HIS SEC. 1981 SUIT MAY ASK
THE COURT TO STATY PROCEEDINGS UNTIL THE ADMINISTRATIVE EFFORTS AT
CONCILIATION AND VOLUNTARY COMPLIANCE HAVE BEEN COMPLEMENTED.  BUT THE
FUNDAMENTAL ANSWER TO PETITIONER'S ARGUMENT LIES IN THE FACT-
PRESUMABLY A HAPPY ONE FOR THE CIVIL RIGHTS CLAIMANT--THAT CONGRESS
CLEARLY HAS RETAINED SEC 1981 AS A REMEDY AGIANST PRIVATE EMPLOYMENT
DISCRIMINATION SEPARATE FROM AND INDEPENDENT OF THE MORE ELABORATE AND
TIME-CONSUMING PROCEDURES OF TITLE VII.  PETITIONER FREELY CONCEDES
THAT HE COULD HAVE FILED HIS SEC. 1981 ACTION AT ANY TIME AFTER HIS
CAUSE OF ACTION ACCRUED; IN FACT, WE UNDERSTAND HIM TO CLAIM AN
UNFETTERED RIGHT SO TO DO.  THUS, IN A VERY REAL SENSE, PETITIONER HAS
SLEPT ON HIS SEC. 1981 RIGHTS.  THE FACT THAT HIS SLUMBER MAY HAVE BEEN
INDUCED BY FAITH IN THE ADEQUACY OF HIS TITLE VII REMEDY IN OF LITTLE
RELEVANCE INASMUCH AS THE TWO REMEDIES ARE TRULY INDEPENDENT. 
MOREOVER, SINCE PETITONER'S TITLE VII COURT ACTION NOW ALSO APPEARS TO
BE TIME BARRED BECAUSE OF THE PECULIAR PROCEDURAL HISTORY OF THIS CASE,
PETITIONER, IN EFFECT, WOULD HAVE US EXTEND THE SEC. 1981 CAUSE OF
ACTION WELL BEYOND THE LIFE OF EVEN HIS TITLE VII CAUSE OF ACTION.  WE
FIND NO POLICY REASON THAT EXCUSES PETITIONER'S FAILURE TO TAKE THE
MINIMAL STEPS NECESSARY TO PRESERVE EACH CLAIM INDEPENDENTLY. 

     V 

PETITIONER CITES AMERICAN PIPE & CONSTRUCTION CO. V. UTAH 414 U.S.
538 (1974), AND BURNETT V. NEW YORK CENTRAL R. CO., 380 U.S. 424
(1965), IN SUPPORT OF HIS POSITION.  NEITHER CASE IS HELPFUL.  THE
RESPECTIVE PERIODS OF LIMITATION IN THISE CASES WERE DEPRRIVED DIRECTLY
FROM FEDERAL STATUTES RATHER THAN BY REFERENCE TO STATE LAW.  MOREOVER,
IN EACH CASE THERE WAS A SUBSTANTIAL UNDERLYING FEDERAL POLICY THAT
WOULD HAVE CONFLICTED WITH A DECISION NOT TO SUSPEND THE RUNNING OF THE
STATUTE.  /12/ IN THE PRESENT CASE THERE IS NO RELEVANT BODY OF FEDERAL
PROCEDURAL LAW TO GUIDE OUR DECISION, AND THERE IS NO CONFLICTING
FEDERAL POLICY TO PROTECT.  /13/ FINALLY, AND PERHAPS MOST IMPORTANTLY,
THE TOLLING EFFECT GIVEN TO THE TIMELY PRIOR FILINGS IN AMERICAN PIPE
AND IN BURNETT DEPENDED HEAVILY ON THE FACT THAT THOSE FILINGS INVOLVED
EXACTLY THE SAME CAUSE OF ACTION SUBSEQUENTLY ASSERTED.  THIS FACTOR
WAS MORE THAT A MERE ABSTRACT OR THEORETICAL CONSIDERATION BECAUSE THE
PRIOR FILING IN EACH CASE NECESSARILY OPERATED TO AVOID THE EVIL
AGAINST WHICH THE STATUTE OF LIMITATIONS WAS DESIGNED TO PROTECT. 
/14/ 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

                      IT IS SO ORDERED. 

/1/ THE APPLICABLE STATUTE LATER WAS AMENDED TO ALLOW A PERIOD OF 90
DAYS, AFTER ISSUANCE OF THE NOTICE, IN WHICH TO BRING THE TITLE VII
ACTION.  42 U.S.C. SEC. 2000E-5(F)(1) (1970 ED., SUPP. III), AS AMENDED
BY PUB. L. 92 - 261, SEC. 4(A), 86 STAT. 106. 

/2/ "28 - 304.  PERSONAL TORT ACTIONS--MALPRACTICE OF ATTORNEYS--,
CIVIL RIGHTS ACTIONS--STATUTORY PENALTIES.  --ACTIONS FOR LIBEL, FOR
INJURIES TO THE PERSON, FALSE IMPRISONMENT, MALICIOUS PROSECUTION,
CRIMINAL CONVERSATION, SEDUCTION, BREACH OF MARRIAGE PROMISE, ACTIONS
AND SUITS AGAINST ATTORNEYS FOR MALPRACTICE WHETHER SAID ACTIONS ARE
GROUNDED OR BASED IN CONTRACT OR TORT, CIVIL ACTIONS FOR COMPENSATORY
OR PUNITIVE DAMAGES, OR BOTH, BROUGHT UNDER THE FEDERAL CIVIL RIGHTS
STATUTES, AND ACTIONS FOR STATUTORY PENALTIES SHALL BE COMMENCED WITHIN
ONE (1) YEAR AFTER CAUSE OF ACTION ACCRUED." 

/3/ THE DISTRICT COURT ALSO BASED ITS DISMISSAL OF PETITIONER'S SEC.
1891 CLAIM AGAINST REA ON THE ALTERNATIVE GROUND THAT HE HAD FAILED TO
EXHAUST HIS ADMINISTRATIVE REMEDIES UNDER THE RAILWAY LABOR ACT, 44
STAT. 577, 45 U.S.C. SEC. 151 ET SEQ. APP. 102A.  THE COURT OF APPEALS
DID NOT ADDRESS THE EXHAUSTION ARGUMENT.  INASMUCH AS WE LIMITED OUR
GRANT OF CERTIORARI TO THE LIMITATION ISSUE, 417 U.S. 929 (1974), WE
HAVE NO OCCASION HERE TO EXPRESS A VIEW AS TO WHETHER A SEC. 1981 CLAIM
OF EMPLOYMENT DISCRIMINATION IS EVER SUBJECT TO A REQUIREMENT THAT
ADMINISTRATIVE REMEDIES BE EXHAUSTED. 

THE CLAIMS AGAINST THE UNIONS WERE DISMISSED ON RES JUDICATA
GROUNDS.  APP. 101A.  THE COURT OF APPEALS AGREED WITH THAT
DISPOSITION.  489 F.2D 525, 530 N. 1 (CA6 1973).  THIS ISSUE, ALSO, WAS
NOT INCLUDED IN OUR GRANT OF CERTIORRARI. 

/4/ SEE, E.G., BORDREAUX V. BATON ROUGE MARINE CONTRACTING CO., 437
F.2D 1011, 1017 N. 16 (CA5 1971); MACKLIN V. SPECTOR FREIGHT SYSTEMS,
INC., 156 U.S. APP. D.C.69, 84 - 86, N. 30, 478 F.2D 979, 994 - 996, N.
30 (1973). 

/5/ LOO V. GERARGE, 374 F. SUPP. 1338, 1341 - 1342 (HAW.  1974);
HOWARD V. LOCKHEED-GEORGIA CO., 372 F. SUPP. 854, 855 - 856 (ND GA.
1974); VAN HOOMISSEN V. XEROX CORP., 368 F. SUPP. 829, 835 - 838 (ND
CAL. 1973).  CF. HUMPHERY V. SOUTHWESTERN PORTLAND CEMENT CO., 369 F.
SUPP. 832, 842 - 843 (WD TEX. 1973), REV'D ON OTHER GROUNDS, 488 F.2D
691 (CA5 1974). 

/6/ YOUNG V. INTERNATIONAL TEL. & TEL. CO., 438 F.2D 757 (CA3 1971);
BROWN V. GATSON COUNTY DEYING MACHINE CO., 457 F.2D 1377 (CA4), CERT.
DENIED, 409 U.S. 982 (1972); CALDWELL V. NATIONAL BREWING CO., 443 F.2D
1044 (CA5 1971), CERT. DENIED, 405 U.S. 916 (1972); LONG V. FORD MOTOR
CO., 496 F.2D 500 (CA6 1971); WATERS V. WISCONSIN STEEL WORKS, 427 F.2D
476 (CA7), CERT. DENIED SOB NOM.  INTERNATIONAL HARVESTER CO. V.
WATERS, 400 U.S. 911 (1970); BRADY V. BRISTOL-MEYERS, INC., 459 F.2D
621 (CA8 1972); MACKLIN V. SPECTOR FREIGHT SYSTEMS, INC., SUPRA. 

/7/ IN THE PETITION FOR CERTIORARI IT WAS ARGUED THAT SEC. 28 - 304
WAS INAPPLICABLE TO PETITIONER'S CLAIM BECAUSE THAT STATUTE IS LIMITED
TO CLAIMS FOR DAMAGES, WHEREAS PETITIONER SOUGHT INJUNCTIVE RELIEF AS
WELL AS BACKPAY.  OUR LIMITED GRANT OF CERTIORARI FORECLOSED OUR
CONSIDERING WHETHER SOME OTHER TENNESSEE STATUTE, SUCH AS TENN. CODE
ANN. SEC. 28 - 309 (1955) (SIX YEARS FOR AN ACTION ON A CONTRACT) OR
SEC. 28 - 310 (1955) (10 YEARS ON AN ACTION NOT OTHERWISE PROVIDED
FOR), MIGHT BE THE APPROPRIATE ONE.  WE ALSO HAVE NO OCCASION TO
CONSIDER WHETHER TENNESSEE'S EXPRESS APPLICATION OF THE ONE-YEAR
LIMITATION PERIOD TO FEDERAL CIVIL RIGHTS ACTIONS IS AN IMPERMISSIBLE
DISCRIMINATION AGAINST THE FEDERAL CAUSE OF ACTION, SEE REPUBLIC
PICTURES CORP. V. KAPPLER, 151 F.2D 543, 546 - 547 (CA 8 1945), AFF'D,
327 U.S. 757 (1946), OR WHETHER THE ENACTMENT OF THE LIMITATION PERIOD
AFTER THE CAUSE OF ACTION ACCRUED, TENN. PUB. ACTS 1969, C. 28, DID NOT
TOUCH THE PRE-EXISTING FEDERAL CLAIM. 

/8/ SEE GENERALLY HILL, STATE PROCEDURAL LAW IN FEDERAL NONDIVERSITY
LITIGATION, 69 HARV. L. REV. 66 (1955). 

/9/ AT ORAL AGRUMENT PETITIONER ADVANCED JUST SUCH A PROPOSITION
WITH RESPECT TO THE APPLICABILITY OF TENNESSEE'S SAVING STATUTE, TENN.
CODE ANN SEC. 28 - 109 (1955).  TR. OF ORAL ARG, 14.  SEE ALSO PETITION
FOR CERT. 21 N. 27. 

/10/ TITLE 42 U.S.C. SEC. 1988 PROVIDES: 

" THE JURISDICTION IN CIVIL AND CRIMINAL MATTERS CONFERRED ON THE
DISTRICT COURTS BY THE PROVISIONS OF THIS CHAPTER AND TITLE 18, FOR THE
PROTECTION OF ALL PERSONS IN THE UNITED STATES IN THEIR CIVIL RIGHTS,
AND FOR THEIR VINDICATION, SHALL BE EXERCISED AND ENFORCED IN
CONFORMITY WITH THE LAWS OF THE UNITED STATES, SO FAR AS SUCH LAWS ARE
SUITABLE TO CARRY THE SAME INTO EFFECT; BUT IN ALL CASES WHERE THEY ARE
NOT ADAPTED TO THE OBJECT, OR ARE DEFICIENT IN THE PROVISIONS NECESSARY
TO FURNISH SUITABLE REMEDIES AND PUNISH OFFENSES AGAINST LAW, THE
COMMON LAW, AS MODIFIED AND CHANGED BY THE CONSTITUTION AND STATUTES OF
THE STATE WHEREIN THE COURT HAVING JURISDICTION OF SUCH CIVIL OR
CRIMINAL CAUSE IS HELD, SO FAR AS THE SAME IS NOT INCONSISTENT WITH THE
CONSTITUTION AND LAWS OF THE UNITED STATES, SHALL BE EXTENDED TO AND
GOVERN THE SAID COURTS IN THE TRIAL AND DISPOSITION OF THE CAUSE, AND,
IF IT IS OF A CRIMINAL NATURE, IN THE INFLICTION OF PUNISHMENT ON THE
PARTY FOUND GUILTY." 

/11/ WE ARE NOT UNMINDFUL OF THE SIGNFICANT DELAYS THAT HAVE
ATTENDED ADMINISTRATIVE PROCEEDINGS IN THE EEOC.  SEE, E.G., CHROMCRAFT
CORP. V. EEOC, 465 F.2D 745 (CA5 1972); EEOC V. E.I. DU PONT DE NEMORS
& CO., 373 F. SUPP. 1321, 1329 (DEL. 1974). 

/12/ IN BURNETT, THE COURT CONSIDERED THE EFFECT OF A PRIOR FILING
OF AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IN STATE COURT
ON THE APPLICABLE THREE-YEAR FELA PERIOD OF LIMITATION.  THE ACTION HAD
BEEN DISMISSED BECAUSE UNDER STATE LAW THE VENUE WAS IMPROPER.  IN VIEW
OF THE EXPRESS FEDERAL POLICY LIBERALLY ALLOWING TRANSFER OF IMPROPERLY
VENUED CASES, SEE 28 U.S.C. SEC. 1406(A), AND THE DESIRABILITY OF
UNIFORMITY IN THE ENFORCEMENT OF FELA CLAIMS, THE COURT CONCLUDED THAT
THE PRIOR FILING TOLLED THE STATUTE.  IN AMERICAN PIPE WE CONSIDERED
THE EFFECT THAT A TIMELY FILED CIVIL SUIT ANTITRUST PURPORTED CLASS
ACTION SHOULD HAVE ON THE APPLICABLE FOUR-YEAR FEDERAL PERIOD OF
LIMITATION.  THE DISTRICT COURT FOUND THE SUIT AN INAPPROPRIATE ONE FOR
CLASS ACTION STATUS.  IN THE LIGHT OF THE HISTORY OF FED. RULE CIV.
PROC. 23 AND THE PURPOSES OF LITIGATORY EFFICIANCY SERVED BY CLASS
ACTIONS, WE CONCLUDED THAT THE PRIOR FILING HAD A TOLLING EFFECT. 

/13/ WE NOTED EXPRESSLY HOW LITTLE IS AT STAKE HERE.  WE ARE NOT
REALLY CONCERNED WITH THE BROAD QUESTION WHETHER THESE RESPONDENTS CAN
BE COMPELLED TO CONFORM THEIR PRACTICES TO THE NATIONALLY MANDATED
POLICY OF EQUAL EMPLOYMENT OPPORTUNITY.  IF THE RESPONDENTS, OR ANY OF
THEM, PRESENTLY ARE ACTUALLY ENGAGED IN SUCH CONDUCT, THERE NECESSARILY
WILL BE CLAIMANTS WHOR ARE IN A POSITION NOW EITHER TO FILE A CHARGE
UNDER TITLE VII OR TO SUE UNDER SEC. 1981.  THE QUESTION IN THIS CASE
IS ONLY WHETHER THIS PARTICULAR PETITIONER HAS WAITED SO LONG THAT HE
HAS FORFEITED HIS RIGHT TO ASSERT HIS SEC. 1981 CLAIM IN FEDERAL
COURT. 

/14/ PETITIONER ARGUES THAT THE TIMELY FILING OF A CHANGE WITH THE
EEOC HAS THE EFFECT OF PLACING THE CHARGED EMPLOYER ON NOTICE THAT A
CLAIM OF DISCRIMINATION IS BEING ASSERTED.  THUS, PETITIONER ARGUES,
THE EMPLOYER HAS THE OPPORTUNITY TO PROTECT ITSELF AGAINST LOSS OF
EVIDENCE, THE DISAPPEARANCE AND FADING MEMORIES OF WITNESSES, AND THE
UNFAIR SURPRISE THAT COULD RESULT FROM A SUDDEN REVIVAL OF A CLAIM THAT
LONG HAS BEEN ALLOWED TO SLUMBER.  TELEGRAPHERS V. RY. EXPRESS AGENCY,
321 U.S. 342, 348 - 349 (1944). 

EVEN IF WE WERE TO IGNORE THE SUBSTANTIAL SPAN OF TIME THAT COULD
RESULT FROM TACKING THE SEC. 1981 LIMITATION PERIOD TO THE FREQUENTLY
PROTRACTED PERIOD OF EEOC CONSIDERATION, WE ARE NOT AT ALL CERTAIN THAT
TITLE VII CHARGE AFFORDS THE CHARGED PARTY THE PROTECTION THAT
PETITIONER SUGGESTS.  SEE, E.G., TIPLER V. E.I DU PONT DE NEMOURS &
CO., 443 F.2D 125, 131 (CA6 1971).  ONLY WHERE THERE IS COMPLETE
IDENTITY OF THE CAUSES OF ACTION WILL THE PROTECTIONS SUGGESTED BY
PETITIONER NECESSARILY EXIST AND WILL THE COURTS HAVE AN OPPORTUNITY TO
ASSESS THE INFLUENCE OF THE POLICY OF REPOSE INHERENT IN A LIMITATION
PERIOD.  SEE GENERALLY DEVELOPMENTS IN THE LAW--, STATUTES OF
LIMITATION, 63 HARV. L. REV. 1177, 1185 - 1186 (1950). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, CONCURRING IN PART AND DISSENTING IN PART.     IN
RECOGNIZING THAT CONGRESS INTENDED TO SUPPLY AGGRIEVED EMPLOYEES WITH
INDEPENDENT BUT RELATED AVENUES OF RELIF UNDER TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964 AND SEC. 16 OF THE CIVIL RIGHTS ACT OF 1870, 42
U.S.C. SEC. 1981, THE COURT EMPHASIZES THE IMPORTANCE OF A FULL ARSENAL
OF WEAPONS TO COMBAT UNLAWFUL EMPLOYMENT DISCRIMINATION IN THE PRIVATE
AS WELL AS THE PUBLIC SECTOR.  THE MAJORITY STANDS ON FIRM GROUND IN
RECOGNIZING THAT BOTH REMEDIES ARE AVAILABLE TO VICTIMS OF
DISCRIMINATORY PRACTICES.  ACCORDINGLY, I CONCUR IN PARTS I - III OF
THE COURT'S OPINION. 

BUT, THE COURT STUMBLES IN ITS ANALYSIS OF THE RELATION BETWEEN THE
TWO STATUTES ON THE TOLLING QUESTION.  THE MAJORITY CONCLUDES THAT THE
FILING OF A TITLE VII CHARGE WITH THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION (EEOC) DOES NOT TOLL THE APPLICABLE STATUTE OF LIMITATIONS. 
IT RELIES EXCLUSIVELY ON STATE LAW FOR THE PERIOD AND EFFECT OF THE
LIMITATION AND DISCOUNTS THE IMPORTANCE OF THE FEDERAL POLICIES OF
CONCILIATION AND AVOIDANCE OF UNNECESSARY LITIGATION IN THIS AREA.  THE
MAJORITY RECOGNIZES THESE POLICIES BUT CONCLUDES THAT TOLLING THE
STATUTE OF LIMITATIONS FOR A SEC. 1981 SUIT DURING THE PENDENCY OF
TITLE VII PROCEEDINGS IS NOT AN APPROPRIATE MEANS OF FURTHERING THEM. 
I DISAGREE.  THE CONGRESSIONAL PURPOSE OF DISCOURAGING PREMATURE
JUDICIAL INTERVENTION AND THE ABSENCE OF ANY REAL RISK OF REVIVING
STALE CLAIMS SUGGEST THE PROPRIETY OF TOLLING HERE.  ON BALANCE, I VIEW
THE FAILURE TO APPLY THE TOLLING PRINCIPLE AS UNDERMINING THE
FOUNDATION OF TITLE VII AND FRUSTRATING THE CONGRESSIONAL POLICY OF
PROVIDING ALTERNATIVE REMEDIES.  I MUST, THEREFORE, DISSENT FROM PARTS
IV AND V OF THE OPINION. 

THE COURT SETS OUT THE CIRCUMSTANCES THAT SUSPEND A STATUTE OF
LIMITATIONS WITHOUT CLOSE EXAMINATION OF THE STATUTE'S EQUITABLE
UNDERPINNINGS.  ACCORDING TO THE MAJORITY, THE FEDERAL COURT IS
DEPRIVED OF AUTHORITY TO TOLL THE STATE STATUTE BECAUSE IT BORROWS BOTH
"THE STATE'S WISDOM IN SETTING A LIMIT, (AS WELL AS) EXCEPTIONS
THERETO," ANTE, AT 464, AND OFFERS NO SPECIAL REASON FOR RELUCTANCE TO
APPLY THE "OVERTONES" OF THE PERIOD TO A FEDERAL CIVIL RIGHTS ACTION. 
AS A GENERAL PRACTICE, WHERE CONGRESS HAS CREATED A FEDERAL RIGHT
WITHOUT PRESCRIBING A PERIOD FOR ENFORCEMENT, THE FEDERAL COURTS
UNIFORMLY BORROW THE MOST ANALOGOUS STATE STATUTE OF LIMITATIONS.  THE
APPLICABLE PERIOD OF LIMITATIONS IS DERIVED FROM THAT WHICH THE STATE
WOULD APPLY IF THE ACTION HAD BEEN BROUGHT IN A STATE COURT.  SEE E.G.,
AUTH WORKERS V. HOOSIER CORP., 383 U.S. 696 (1966); HOLMBERG V.
ARMBRECHT, 327 U.S. 392 (1946); O' SULLIVAN V. FELIX, 233 U.S. 318
(1914).  SEE ALSO AMERICAN PIPE & CONSTRUCTION CO. V. UTAH, 414 U.S.
538, 556 N. (1974).  FOR THE PURPOSES OF THIS CASE THE SEC. 1981 ACTION
IS GOVERNED BY THE DISTRICT COURT'S APPLICATION OF THE ONE-YEAR
TENNESSEE PROVISION FOR "ACTIONS . . . BROUGHT UNDER THE FEDERAL CIVIL
RIGHTS STATUTES."  TENN.  CODE ANN. SEC. 28 - 304 (SUPP. 1974).  SEE
ANTE, AT 462 N. 7. 

CONGRESS' FAILURE TO INCLUDE A BUILT-IN LIMITATIONS PERIOD IN SEC
1981 DOES NOT AUTOMATICALLY WARRANT "AN IMPRIMATUR ON STATE LAW" AND
SANCTION THE BORROWING OF BOTH THE EFFECT AS WELL AS THE DURATION FROM
STATE LAW.  AUTO WORKERS V. HOOSIER CORP., SUPRA, AT 709 (WHITE, J.,
DISSENTING); HOLMBERG V. ARMBRECT, SPURA, AT 394 - 395; BOARD OF
COMM'RS V. UNITED STATES, 308 U.S. 343 (1939).  IT IS WELL SETTLED THAT
WHEN FEDERAL COURTS SIT TO ENFORCE FEDERAL RIGHTS, THEY HAVE AN
OBLIGATION TO APPLY FEDERAL EQUITY PRINCIPLES: 

" WHEN CONGRESS LEAVES TO THE FEDERAL COURTS THE FORMULATION OF
REMEDIAL DETAILS, IT CAN HARDLY EXPECT THEM TO BREAK WITH HISTORIC
PRINCIPLES OF EQUITY IN THE ENFORCEMENT OF FEDERALLY-CREATED EQUITABLE
RIGHTS."  HOLMBERG V. ARMBRECHT, SUPRA, AT 395.  SEE ALSO MOVIECOLORS,
LTD. V. EASTMAN KODAK CO., 288 F.2D 80 (CA2), CERT. DENIED, 368 U.S.
821 (1961). 

THE EFFECT TO BE GIVEN THE BORROWED STATUTE IS THUS A MATTER OF
JUDICIAL IMPLICATION.  SIMPLY STATED, WE MUST DETERMINE WHETHER THE
NATIONAL POLICY CONSIDERATIONS FAVORING THE CONTINUED AVAILABILITY OF
THE SEC. 1981 CAUSE OF ACTION OUTWEIGH THE INTERESTS PROTECTED BY THE
STATE'S STATUTE OF LIMITATIONS.  SEE AUTO WORKERS V. HOOSIER CORP.,
SUPRA, AT 708; HOLMBERG V. ARMBRECHT, SUPRA, AT 395. 

        I 

TITLE VII AND NOW SEC. 1981 BOTH EXPRESS THE FEDERAL POLICY AGAINST
DISCRIMINATORY EMPLOYMENT PRACTICES.  EMPORIUM CAPWELL CO. V. WACO, 420
U.S. 50, 66 (1975); ALEXANDER V. GARDNER-DENVER CO., 415 U.S. 36, 44
(1974); MC DONNEL DOUGLAS CORP. V. GREEN, 411 U.S. 792, 800 (1973);
GRIGGS V. DUKE POWER CO., 401 U.S. 424, 429 - 430 (1971).  AS WE HAVE
RECENTLY OBSERVED, "LEGISLATIVE ENACTMENTS IN THIS AREA HAV E LONG
ENVINCED A GENERAL INTENT TO ACCORD PARALLEL OR OVERLAPPING REMEDIES
AGAINST DISCRIMINATION."  ALEXANDER V. GARDNER-DENVER CO., SUPRA, AT
47.  IT IS THIS GENERAL LEGISLATIVE INTENT THAT MUST GUIDE US IN
DETERMINING WHETHER CONGRESSIONAL PURPOSE WITH RESPECT TO A PARTICULAR
STATUTE IS EFFECTUATED BY TOLLING THE STATUTE OF LIMITATIONS. 

A FULL EXPOSITION OF THE STATUTORY ORIGINS OF SEC. 1981 WITH RESPECT
TO PROHIBITION AGAINST PRIVATE ACTS OF DISCRIMINATION IS SET OUT IN
JONES V. ALFERD H. MAYER, CO., 392 U.S. 409 (1968).  IN CONSTRUING SEC
1982, A SISTER PROVISION TO SEC. 1981, WE CONCLUDED THAT CONGRESS
INTENDED TO PREVENT PRIVATE DISCRIMINATORY DEPRIVATIONS OF ALL THE
RIGHTS ENUMERATED IN SEC. 1 OF THE 1866 ACT, INCLUDING THE RIGHT TO
CONTRACT.  392 U.S., AT 426.  THE COURT'S RECOGNITION OF A PROSCRIPTION
IN SEC 1981 AGAINST PRIVATE ACTS OF EMPLOYMENT DISCRIMINATION, ANTE, AT
459 - 460, REAFFIRMS THAT THE EARLY CIVIL RIGHTS ACTS REFLECT
CONGRESSIONAL INTENT TO "SPEAK . . . OF ALL DEPRIVATIONS . . . WHAT
EVER THEIR SOURCE."  GRIFFIN V. BRECKINRIDGE, 406 U.S. 88, 97 (1971);
SEE ALSO SULLIVAN V. LITTLE HUNTING PARK, INC., 396 U.S. 229 (1969). 

THE LEGISLATIVE HISTORY OF TITLE VII AND ITS 1972 AMENDMENTS
DEMONSTRATES THAT CONGRESS INTENDED TO PROVIDE A COORDINATED BUT
COMPREHENSIVE SET OF REMEDIES AGAINST EMPLOYMENT DISCRIMINATION.  THE
SHORT STATUTE OF LIMITATIONS AND THE PROCEDURAL PREREQUISITES TO TITLE
VII ACTIONS EMPHASIZED THE NEED TO PRESERVE THE REMEDY OF A SUIT UNDER
THE 1870 LEGISLATION, WHICH DID NOT SUFFER FROM THE SAME PROCEDURAL
RESTRICTIONS AS THE LATTER ENACTMENT.  SEE H.R. REP. NO. 92 - 238, P.
19 (1971); S. REP. NO. 92 - 415, P. 24 (1971).  SEE ALSO 118 CONG. REC.
3370 (1972).  CONGRESSIONAL SENTIMENT WAS THAT "(BY STRENGTHENING THE
ADMINISTRATIVE REMEDY (IT) SHOUD NOT ALSO ELIMINATE PREEXISTING RIGHTS
WHICH THE CONSTITUTION AND (THE CONGRESS HAD) ACCORDED TO AGGRIEVED
INDIVIDUALS."  ID., AT 3371.  WHILE ENCOURAGEMENT OF PRIVATE SETTLEMENT
TO AVOID UNNECESSARY LITIGATION UNDER TITLE VII AND THE PRESERVATION OF
AN INDEPENDENT SEC. 1981 ACTION MAY APPEAR SOMEWHAT AT ODDS, THE TWO
THEMES ARE RECONCILED IN THE CONTEXT OF THEIR JOINTREMEDIAL PURPOSE:
DEVISING A FLEXIBLE NETWORK OF REMEDIES TO GUARANTEE EQUAL EMPLOYMENT
OPPORTUNITIES.  SEE, E.G., GUERRA V. MANCHESTER TERMINAL CORP., 498
F.2D 641, 650 (CA5 1974); BOURDEAUX V. BATON ROUGE MARINE CONTRACTING
CO., 437 F.2D 1011, 1017 (CA5 1971); MACKLIN V. SPECTOR FREIGHT
SYSTEMS, INC., 156 U.S. APP. D.C. 69, 84 - 86, N. 30, 478 F.2D 979, 994
- 996.  N. 30 (1973).  SEE ALSO CULPEPPER V. RENYOLDS METALS CO., 421
F.2D 888 (CA5 1970). 

IN ALEXANDER V. GARDNER-DENVER, SUPRA, WE EXAMINED THE RELATIONSHIP
BETWEEN COMPULSORY ARBITRATION AND LITIGATION UNDER TITLE VII, A
RELATIONSHIP ANALOGOUS TO THAT BETWEEN THE EEOC FACTFINDING AND
CONCILIATION PROCESS AND LITIGATION UNDER SEC. 1981, AND ACCOMMODATED
BOTH AVENUES OF REDRESS.  THE REASONING LEADING TO THAT RESULT IS
EQUALLY COMPELLING HERE.  FORCED COMPLIANCE WITH A SHORT STATUTE OF
LIMITATIONS DURING THE PENDENCY OF A CHARGE BEFORE THE CONGRESSIONALLY
FAVORED POLICY OF CONCILIATION, ALEXANDER V. GARDNER-DENVER CO., 415
U.S., AT 44, AND "(THE POSSIBILITY OF VOLUNTARY COMPLIANCE OR
SETTLEMENT OT TITLE VII CLAIMS WOULD THUS BE REDUCED, AND THE RESULT
COULD WELL BE MORE LITIGATION, NOT LESS."  ID., AT 59.  CF. AMERICAN
PIPE & CONSTR. CO. V. UTAH, 414 U.S., AT 555 - 556. 

CONGRESSIONAL EFFORT, WITH THE 1972 AMENDMENTS, TO STRENGTHEN THE
ADMINISTRATIVE REMEDY BY INCREASING EEOC'S ABILITY TO CONCILIATE
COMPLAINTS IS FRUSTRATED BY THE MAJORITY'S REQUIREMENT THAT AN EMPLOYEE
FILE THE SEC. 1981 ACTION PRIOR TO THE CONCLUSION OF THE TITLE VII
CONCILIATION EFFORTS IN ORDER TO AVOID THE BAR OF THE STATUTE OF
LIMITATIONS.  /1/  LEGISLATIVE PAINS TO AVOID UNNECESSARY AND COSTLY
LITIGATION BY MAKING THE INFORMAL, INVESTIGATORY AND CONCILIATORY
OFFICES OF EEOC READILY AVAILABLE TO VICTIMS OF UNLAWFUL DISCRIMINATION
CANNOT BE SQUARED WITH THE FORMAL MECHANISTIC REQUIREMENT OF EARLY
FILLING FOR THE TECHNICAL PURPOSE OF TOLLING A LIMITATIONS STATUTE.  IN
SUM, THE FEDERAL POLICIES WEIGH STRONGLY IN FAVOR OF TOLLING. 

        II 

EXAMINATION OF THE PURPOSES SERVED BY THE STATUTE OF LIMITATIONS
INDICATES THAT THEY WOULD NOT BE FRUSTRATED BY ADOPTION OF THE TOLLING
RULE.  STATUTES OF LIMITATIONS ARE DESIGNED TO INSURE FAIRNESS TO
DEFENDANTS BY PREVENTING THE REVIVAL OF STALE CLAIMS IN WHICH THE
DEFENSE IS HAMPERED BY LOST EVIDENCE, FADED MEMORIES, AND DISAPPEARING
WITNESSES, AND TO AVOID UNFAIR SUPRISE.  NONE OF THESE FACTORS EXISTS
HERE. 

RESPONDENTS WERE INFORMED OF THE PETITIONER'S GRIEVANCES THROUGH THE
COMPLAINT FILED WITH THE COMMISSION AND CONCILATION NEGOTIATIONS.  THE
CHARGE FILED WITH THE EEOC DN THE SEC. 1981 CLAIM ARISE OUT OF THE SAME
FACTUAL CIRCUMSTANCES.  THE PETITIONER IN THIS CASE DILIGENTLY PURSUED
THE INFORMAL PROCEDURES BEFORE THE COMMISSION AND ADHERED TO THE
CONGRESSIONAL PREFERENCE FOR CONCILIATION PRIOR TO LITIGATION.  NOW,
WHEN JOHNSON ASSERTS HIS GOOD-FAITH, ALBEIT UNNECESSARY, COMPLIANCE
WITH TITLE VII PROCEDURES, THE MAJORITY INTERPOSES THE BAR OF THE
TENNESSEE STATUTE OF LIMITATIONS WHICH CLEARLY WAS NOT DESIGNED TO
INCLUDE SUCH CASES.  /2/ 

IN MY JUDGMENT, FOLLOWING THE ANTITOLLING POSITION OF THE COURT TO
ITS LIGICAL CONCLUSION PRODUCES AN INEQUITABLE RESULT.  AGGRIEVED
EMPLOYEES WILL BE FORCED INTO SIMULTANEOUSLY PROSECUTING PREMATURE SEC.
1981 ACTIONS IN THE FEDERAL COURTS.  IN ESSENCE, THE LITIGANT WHO FIRST
EXPLORES CONCILIATION PRIOR TO RESORT TO LIGIGATION MUST FILE A
DUPLICATIVE CLAIM IN THE DISTRICT COURT ON WHICH THE COURT WILL EITHER
TAKE NO ACTION UNTIL THE TITLE VII PROCEEDINGS ARE CONCLUDED OR PROCEED
IN FRUSTRATION OF THE EEOC ATTEMPTS TO CONCILATE.  NO FEDERAL POLICY
CONSIDERATIONS WARRANT THIS WASTE OF JUDICIAL TIME AND DEROGATION OF
THE CONCILATION PROCESS. 

ADOPTION OF THE TOLLING PRINCIPLE, HOWEVER, PROTECTS THE FEDERAL
INTEREST IN BOTH PRESERVING MULTIPLE REMEDIES FOR EMPLOYMENT
DISCRIMINATION AND IN THE PROPER FUNCTION OF THE LIMITATIONS STATUTE. 
AS A NORMAL CONSEQUENCE TOLLING WORKS TO SUSPEND THE OPERATION OF A
STATUTE OF LIMITATIONS DURING THE PENDENCY OF AN EVENT OR CONDITION. 
SEE AMERICAN PIPE & CONSTRUCTION CO. V. UTAH, 414 U.S., AT 560 561;
BURNETT V. NEW YORK CENTRAL R. CO., 380 U.S. 424, 427 (1965).  IN
AMERICAN PIPE WE HELD THAT THE LIMITATION OF A TIMELY CLASS ACTION
TOLLED THE RUNNING OF THE LIMITATION PERIOD AS TO INDIVIDUAL MEMBERS OF
THE CLASS, ENABLING THEM TO INSTITUTE SEPARATE ACTIONS AFTER THE
DISTRICT COURT FOUND CLASS ACTION AN INAPPROPRIATE MECHANISM FOR THE
LITIGATION.  IN SIMILAR MANNER THE BURNETT COURT VIEWED THE INITIATION
OF A TIMELY FEDERAL EMPLOYERS' LIABILITY ACT SUIT IN STATE COURT AS
TOLLING THE STATUTE OF LIMITATIONS FOR THE LATTER FILING OF A FEDERAL
ACTION FOLLOWED DISMISSAL OF THE STATE PROCEEDING FOR IMPROPER VENUE. 
THE COURT'S ANALYSIS IN BOTH CASES RESTED ON THE CONCLUSION THAT EACH
PLAINTIFF HAD BY HIS PRIOR ACTION GIVEN THE POLICIES OF REPOSE AND
CERTAINTY INHERENT IN THE LIMITATION PROVISIONS AND TOLLED THE RUNNING
OF THE PERIOD."  AMERICAN PIPE & CONSTRUCTION CO. V. UTAH, SUPRA, AT
558. 

ALTHOUGH THE LENGTH OF THE LIMITATION IN THESE CASES WAS FIXED BY
FEDERAL STATUTE, THE TOLLING RATIONALE IS EQUALLY ADAPTABLE TO PROTECT
SUBSEQUENT LITIGATION WHEN THE DURATION PERIOD IS ESTABLISHED BY STATE
STATUTE.  THE FEDERAL POLICY IN FAVOR OF CONTINUING AVAILABILITY OF
MULTIPLE REMEDIES FOR PERSONS SUBJECT TO EMPLOYMENT DISCRIMINATION IN
INCONSISTENT WITH THE MAJORITY'S DECISION NOT TO SUSPEND THE OPERATION
OF THE STATUTE.  AS LONG AS THE CLAIM ARISING UNDER SEC. 1981 IS
ESSENTIALLY LIMITED TO THE TITLE VII CLAIM, STALENESS AND UNFAIR
SURPRISE DISAPPEAR AS JUSTIFICATION FOR APPLYING THE STATUTE.  /3/
ADDITIONALLY, THE DIFFERENCE IN STATUTORY ORIGIN FOR THE RIGHT ASSERTED
UNDER THE EEOC CHARGE AND THE SUBSEQUENT SEC. 1981 SUIT IS OF NO
CONSEQUENCE SINCE THE CLAIMS ARE ESSENTIALLY EQUIVALENT IN SUBSTANCE. 
CF. ALEXANDER V. GARDNER-DENVER, SUPRA.  SINCE THE EEOC CHARGE GIVES
NOTICE THAT PETITIONER ALSO HAS A GRIEVANCE UNDER SEC. 1981, THAT
FILING, LIKE THE INITIAL LITIGATION IN BURNETT AND AMERICAN PIPE,
SATISFIED THAT EQUITABLE POLICIES UNDERLYING THE LIMITATION PRIVISON. 
AMERICAN PIPE & CONSTRUCTION CO. V. UTAH, SUPRA, AT 558. 

NEITHER THE LEGISLATIVE HISTORY OF THESE ACTS NOR THE AVOUWED
PURPOSES OF STATUTES OF LIMITATIONS FORECLOSE GOODFAITH RESORT TO THE
ADMINISTRATIVE PROCEDURES OF EEOC.  ADOPTION OF THE TOLLING THEORY
AVOIDS THE DRACONIAN CHOICE OF LOSING THE BENEFITS OF CONCILIATION OR
GIVING UP THE RIGHT TO SUE, YET PRESERVES THE INDEPENDENT NATURE OF THE
SEC. 1981 ACTION.  ACCORDINGLY, 2 WOULD REVERSE THE COURT BELOW ON THIS
POINT. 

/1/ LOSS OF THE SEC. 1981 CAUSE OF ACTION WOULD DEPRIVE THE
AGGRIEVED EMPLOYEE OF THE OPPORTUNITY TO RECOVER PUNITIVE DAMAGES AND
MORE AMPLE BACKPAY. 

/2/ UNDER THE COURT'S NO-TOLLING PRINCIPLE PETITIONER'S DISCHARGE ON
JUNE 20, 1967, ACTIVATED THE STATUTE WHICH SUBSEQUENTLY RAN ON JUNE 20,
1968--TWO YEARS PRIOR TO HIS RECEIPT OF THE RIGHT-TO-SUE LETTER]  THE
MAJORITY SUGGESTS THAT EVEN IF THE STATUTE WERE TOLLED DURING THE
CONSIDERATION OF THE EEOC CHARGE AND THE INITIAL COURT PROCEEDINGS,
PETITIONER'S TITLE VII ACTION MAY BE TIME BARRED BECAUSE OF THE UNUSUAL
PROCEDURAL HISTORY OF THE CASE, REQUIRING THE COURT TO EXTEND HIS SEC.
1981 CLAIM BEYOND THAT ARISING OUT OF TITLE VII.  BUT OUR LIMITED GRANT
OF CERTIORARI FORECLOSES CONSIDERATION OF THE TIMELINESS OF THE TITLE
VII CLAIM.     IN ANY EVENT THIS CASE REFLECTS NO DEPARTURE FROM THE
NORMAL RULE OF TOLLING.  CONSISTENT WITH THE COMMON UNDERSTANDING THAT
TOLLING ENTAILS A SUSPENSION RATHER THAN AN EXTENSION OF A PERIOD OF
LIMITATIONS, PETITIONER IS ALLOWED WHATEVER TIME REMAINS UNDER THE
APPLICABLE STATUTE, AS WELL AS THE BENEFIT OF ANY STATE SAVING
STATUTE.  UNDER TENN. CODE ANN. SEC. 28 - 106 (1955) AN ACTION
DISMISSED WITHOUT PREJUDICE MAY BE REINSTATED WITHIN A YEAR OF
DISMISSAL.  THE FILING HERE FALLS WHTHIN THAT TIME FRAME. 

/3/ WHERE THERE ARE DIFFERENCES BETWEEN THE SEC. 1981 CLAIM AND THE
TITLE VII COMPLAINT, THE DISTRICT COURTS COULD EASILY LIMIT THE TOLLING
TO THOSE PORTIONS OF THE SEC 1981 CLAIM THAT OVERLAPPED WITH THE TITLE
VII ALLEGATIONS.  CF. EEOC V. LOUISVILLE & N.R. CO., 505 F.2D 610, 617
(CA5 1974); SANCHEZ V. STANDARD BRANDS, 431 F.2D 455, 466 (CA5 1970). 

DEBORAH M. GREENBURG ARGUED THE CAUSE FOR PETITIONER.  WITH HER ON
THE BRIEFS WERE JACK GREENBURG, JAMES M. NARBRIT III, MORRIS J. BALLER,
ERIC SCHNAPPER, WILLIAM D. CALDWELL, AND LOUIS H. POLLAK. 

ARTHUR M. WISEHART ARGUED THE CAUSE FOR RESPONDENT RAILWAY EXPRESS
AGENCY, INC. WITH HIM ON THE BRIEFS WAS PETER G. WOLFE.  JAMES L.
HIGHSAW, JR., ARGUED THE CAUSE AND FILED BRIEFS FOR RESPONDENTS
BROTHERHOOD OF RAILWAY CLERKS ET AL. 

SOLICITORY GENERAL BORK, ASSISTANT ATTORNEY GENERAL POTTINGER, DEITH
A. JONES, DAVID L. ROSE, MICHAEL A. MIDDLETON, AND JOSEPH T. EDDINGS
FILED A BRIEF FOR THE UNITED STATES AS AMICUS CURIAE. 
..END :






DALLAS COUNTY V. REESE, 421 U.S. 477 


       DALLAS COUNTY, ALABAMA, 16 ET AL. V. REESE ET AL.

       APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH

           CIRCUIT

        NO. 74 - 1077.  DECIDED MAY 19, 1975;

        505 F.2D 879, REVERSED AND REMANDED. 


    THE ALABAMA STATUTORY SYSTEM PROVIDING FOR COUNTYWIDE BALLOTING

  FOR EACH OF THE FOUR MEMBERS OF THE DALLAS COUNTY COMMISSION, BUT

  REQUIRING THAT A MEMBER BE ELECTED FROM EACH OF THE FOUR

  RESIDENCY DISTRICTS, IS NOT UNCONSTITUTIONAL THOUGH THE

  POPULATIONS OF THE FOUR DISTRICTS VARY WIDELY,WITH THE RESULT

  THAT ONLY ONE SELMA RESIDENT CAN BE A COMMISSION MEMBER, ALTHOUGH

  THE CITY CONTAINS ABOUT ONE-HALF OF THE COUNTY'S POPULATION. 

  FORTSON V. DORSEY, 379 U.S. 433; DUSCH V. DAVIS, 387 U.S. 112. 

  BECAUSE THE DISTRICTS ARE USED "MERELY AS THE BASIS OF RESIDENCE

 FOR CANDIDATES, NOT FOR VOTING OR REPRESENTATION," FORTSON,

  SUPRA, AT 438; DUSCH, SUPRA, AT 115, EACH COMMISSIONER REPRESENTS

  THE CITIZENS OF THE ENTIRE COUNTY AND NOT MERELY THOSE OF THE

  DISTRICT IN WHICH HE RESIDES.  WHILE A SYSTEM OF UNEQUAL

  RESIDENCY DISTRICTS IS NOT IMMUNE IN ALL CIRCUMSTANCES FROM

  CONSTITUTIONAL ATTACK, THE COURT OF APPEALS DID NOT BASE ITS

  DECISION ON THE FACTUAL CONCLUSIONS NECESSARY TO SUPPORT A

  SUCCESSFUL CHALLENGE IN PARTICULAR CASES. 

PER CURIAM. 

APPELLEES ARE RESIDENTS OF THE CITY OF SELMA, ALA., WHO BROUGHT THIS
ACTION TO CHALLENGE THE SYSTEM BY WHICH MEMBERS OF THE DALLAS COUNTY,
ALA., COMMISSION ARE ELECTED.  THE SYSTEM, WHICH IS ESTABLISHED BY A
STATE STATUTE, /1/ PROVIDES FOR COUNTYWIDE BALLOTING FOR EACH OF THE
FOUR COMMISSION MEMBERS, BUT REQUIRES THAT A MEMBER BE ELECTED FROM
EACH OF FOUR RESIDENCY DISTRICTS.  /2/ APPELLEES' CONSTITUTIONAL CLAIM
WAS PREMISED ON THEFACT THAT THE POPULATIONS OF THE FOUR DISTRICTS VARY
WIDELY, WITH THE RESULT THAT ONLY ONE RESIDENT OF THE CITY OF SELMA CAN
BE A MEMBER OF THE COMMISSION, ALTHOUGH THE CITY CONTAINS ABOUT ONE
HALF OF THE COUNTY'S POPULATION.  /3/

AFTER EXTENSIVE DISCOVERY, THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA ENTERED SUMMARY JUDGMENT FOR APPELLANTS,
DALLAS COUNTY AND THE MEMBERS OF THE DALLAS COUNTY COMMISSION.  THE
COURT RELIED HEAVILY ON OUR DECISION IN DUSCH V. DAVIS, 387 U.S. 112
(1967), AND CONCLUDED: 

"(THE FUNDAMENTAL PRINCIPLE OF REPRESENTATIVE GOVERNMENT HAS BEEN
FULFILLED IN THAT EACH COUNTY COMMISSIONER'S TENURE DEPENDS UPON THE
VOTE OF THE QUALIFIED VOTERS FROM THE COUNTYWIDE ELECTORATE.  THIS FACT
ALONE REQUIRES EACH COUNTY COMMISSIONER TO REPRESENT THE COUNTY AND NOT
HIS OWN RESIDENTIAL AREA."  JURISDICTIONAL STATEMENT 15 - 16. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT CONSIDERED THE CASE EN
BANC AND REVERSED, 8 - 6.  /4/ 505 F.2D 879 (1974).  THE MAJORITY
CONCLUDED THAT THE UNEQUAL RESIDENCY DISTRICTS DILUTED THE VOTES OF
CITY RESIDENTS, AND THAT THE RESULTING DISCRIMINATION WAS INVIDIOUS. 
IT DISTINGUISHED DUSCH ON THE BASIS OF THE PARTICULAR FACTS OF THAT
CASE, WHICH INVOLVED SEVEN COUNCIL MEMBERS ELECTED FROM UNEQUAL
RESIDENCY BOROUGHS, AND FOUR COUNCIL MEMBERS WHO COULD LIVE ANYWHERE IN
THE CITY; ACCORDING TO THE COURT OF APPEALS, THE EFFECT WAS TO ASSURE
THAT A MAJORITY OF THE 11-MAN COUNCIL COULD NOT BE ASSEMBLED WITHOUT
THE COOPERATION OF EITHER ONE "REPRESENTATIVE" OF THE HEAVILY POPULATED
BOROUGHS OR OF ONE MEMBER OF UNRESTRICTED RESIDENCY.  IN THE PRESENT
CASE, ON THE OTHER HAND, THE STRUCTURE OF THE COMMISSION IS SUCH THAT
THE THREE COMMISSIONERS WHO RESIDE OUTSIDE OF SELMA CAN CONTROL THE
COMMISSION, EVEN THOUGH THEY "REPRESENT" ONLY A SLIGHT MAJORITY OF THE
POPULATION.  /5/ THE DISSENTERS IN THE COURT OF APPEALS THOUGHT THAT
DUSCH CONTROLLED.  WE AGREE, AND REVERSE THE COURT OF APPEALS. 

DUSCH REAFFIRMED THE PRINCIPLE ENUNCIATED IN FORTSON V. DORSEY, 379
U.S. 433, 438 (1965), THAT WHEN AN OFFICIAL'S "TENURE DEPENDS UPON THE
COUNTY-WIDE ELECTORATE HE MUST BE VIGILANT TO SERVE THE INTERESTS OF
ALL THE PEOPLE IN THE COUNTY, AND NOT MERELY THOSE OF PEOPLE IN HIS
HOME DISTRICT."  BECAUSE THE DISTRICTS IN THE PRESENT PLAN ARE USED
"MERELY AS THE BASIS OF RESIDENCE FOR CANDIDATES, NOT FOR VOTING OR
REPRESENTATION,"  IBID.; DUSCH V. DAVIS, SUPRA, AT 115, EACH
COMMISSIONER REPRESENTS THE CITIZENS OF THE ENTIRE COUNTY AND NOT
MERELY THOSE OF THE DISTRICT IN WHICH HE RESIDES.  WE THINK THAT THIS
TEACHING OF DUSCH AND OF FORTSON V. DORSEY WAS ALL BUT IGNORED BY THE
COURT OF APPEALS, WHICH CHOSE INSTEAD TO FOCUS ON A FACTUAL ELEMENT OF
DUSCH WHICH WAS ACCORDED ABSOLUTELY NO SIGNIFICANCE IN THE OPINION IN
THAT CASE.  NOR DO WE UNDERSTAND WHAT SIGNIFICANCE COULD BE ATTACHED TO
THE PRESENCE OF COUNCIL MEMBERS SUBJECT TO NO RESIDENCE REQUIREMENT,
GIVEN THE BASIC TEACHING THAT ELECTED OFFICIALS REPRESENT ALL OF THOSE
WHO ELECT THEM, AND NOT MERELY THOSE WHO ARE THEIR NEIGHBORS. 

THE COURT OF APPEALS WAS, OF COURSE, CORRECT IN RECOGNIZING THAT
DUSCH DOES NOT ENTIRELY INSULATE A PLAN SUCH AS THIS FROM
CONSTITUTIONAL ATTACK.  AS THAT OPINION NOTED:  " IF A BOROUGH'S
RESIDENT ON THE COUNCIL REPRESENTED IN FACT ONLY THE BOROUGH, . . .
DIFFERENT CONCLUSIONS MIGHT FOLLOW."  387 U.S., AT 116.  SIMILARLY, IN
DUSCH WE APPROVINGLY QUOTED AT PORTION OF THE DISTRICT COURT'S OPINION,
INCLUDING THE FOLLOWING PASSAGE: 

"' AS THE PLAN BECOMES EFFECTIVE, IF IT THEN OPERATES TO MINIMIZE OR
CANCEL OUT THE VOTING STRENGTH OF RACIAL OR POLITICAL ELEMENTS OF THE
VOTING POPULATION, IT WILL BE TIME ENOUGH TO CONSIDER WHETHER THE
SYSTEM STILL PASSES CONSTITUTIONAL MUSTER.'"  ID., AT 117.  WE THINK IT
CLEAR, HOWEVER, THAT DUSCH COMTEMPLATED THAT A SUCCESSFUL ATTACK
RAISING SUCH A CONSTITUTIONAL QUESTION MUST BE BASED ON FINDINGS IN A
PARTICULAR CASE THAT A PLAN IN FACT OPERATES IMPERMISSIBLY TO DILUTE
THE VOTING STRENGTH OF AN IDENTIFIABLE ELEMENT OF THE VOTING
POPULATION.  RATHER THAN BASING ITS DECISION ON A FACTUAL CONCLUSION OF
THIS SORT, THE COURT OF APPEALS RELIED ON A THEORETICAL PRESUMPTION TO
REACH ITS DETERMINATION THAT RESIDENTS OF SELMA WERE VICTIMS OF
INVIDIOUS DISCRIMINATION.  THAT THEORETICAL PRESUMPTION IS THAT ELECTED
OFFICIALS WILL REPRESENT THE DISTRICTS IN WHICH THEY RESIDE RATHER THAN
THE ELECTORATE WHICH CHOOSES THEM.  BUT THAT IS PRECISELY THE
PROPOSITION REJECTED IN DUSCH. 

FOR THE FOREGOING REASONS, THE JUDGMENT OF THE COURT OF APPEALS MUST
BE REVERSED, AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

     IT IS SO ORDERED. 

/1/ ACT NO. 328, SEC. 6, ACTS OF ALABAMA (FEB. 8, 1901) (AS
AMENDED).  OUR APPELLATE JURISDICTION IS BASED ON 28 U.S.C. SEC.
1254(2). 

/2/ THE JUDGE OF PROBATE OF DALLAS COUNTY IS EX OFFICIO CHAIRMAN OF
THE COMMISSION, AND VOTES IN THE CASE OF A TIE VOTE AMONG THE
COMMISSIONERS.  HE IS ELECTED BY COUNTYWIDE BALLOT AND MAY RESIDE
ANYWHERE WITHIN THE COUNTY. 

/3/ AS SHOWN BY THE 1970 OFFICIAL CENSUS, THE POPULATION OF EACH OF
THE RESIDENCY DISTRICTS IS AS FOLLOWS: 

     CITY OF SELMA.........................27,379 

   WEST...................................6,209 

     SOUTH..................................14,203 

     FORK...................................7,505 

/4/ JUDGE BELL CONCURRED IN PART AND DISSENTED IN PART.  HE WOULD
HAVE REMANDED TO THE DISTRICT COURT FOR AN EVIDENTIARY HEARING ON THE
QUESTION OF INVIDIOUS DISCRIMINATION. 

/5/ IN FASHIONING THIS DISTINCTION OF DUSCH, THE FIFTH CIRCUIT
RELIED ON A PRIOR DECISION OF A PANEL OF THAT COURT, KELLER V. GILLIAM,
454 F.2D 55 (1972).  ACCORDING TO THE COURT OF APPEALS, AND FOR THE
REASONS STATED IN THE TEXT, "(IN KELLER, AS IN THE PRESENT CASE,
PRESERVING MAJORITY RULE WAS NOT POSSIBLE, AND THE PLAN WAS STRUCK
DOWN."  505 F.2D 879, 885 (1974). 

GIVEN THE POPULATIONS OF THE FOUR DISTRICT, SEE N. 3, SUPRA, IT IS
DIFFICULT TO UNDERSTAND HOW THE FIFTH CIRCUIT'S DISTINCTION OF DUSCH IS
APPLICABLE EVEN TO THE FACTS OF THIS CASE.  ACCORDING TO THE 1970
CENSUS, THE CITY DISTRICT HAS A POPULATION OF 27,379, WHILE THE THREE
RURAL DISTRICTS HAVE A COMBINED POPULATION OF 27,917.  THUS SHOULD THE
COMMISSIONERS WHO RESIDE IN THE RURAL DISTRICTS VOTE TOGETHER, THEIR
CONTROL OF THE COMMISSION DOES IN FACT REFLECT THEIR "REPRESENTATION"
OF A MAJORITY OF THE COUNTY'S POPULATION.  NOR IS IT POSSIBLE IN ANY
OTHER FASHION TO OBTAIN A MAJORITY OF THE COMMISSION WITHOUT THE VOTES
OF EITHER COMMISSIONERS "REPRESENTING" A MAJORITY OF THE COUNTY'S
POPULATION OR OF THE JUDGE OF PROBATE WHOSE RESIDENCY IS UNRESTRICTED. 
THESE FACTS HAVE NO BEARING ON OUR DISPOSITION OF THIS CASE, BUT THEY
DO SEEM TO BE INCONSISTENT WITH THE RATIONALE ON WHICH THE COURT OF
APPEALS BASED ITS DECISION. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















PITCHESS V. DAVIS, 421 U.S. 482 


       PITCHESS, SHERIFF V. DAVIS

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT

        NO. 74 - 1128.  DECIDED MAY 19, 1975;

        CERTIORARI GRANTED; REVERSED AND REMANDED. 


    ON RESPONDENT'S DIRECT APPEAL FROM A RAPE CONVICTION, THE

  CALIFORNIA APPELLATE COURTS REJECTED HIS CONTENTION THAT THE

  PROSECUTION'S FAILURE TO TURN OVER TO HIM AN EXCULPATORY

  LABORATORY REPORT STATING THAT SCIENTIFIC TESTS FAILED TO REVEAL

  THE PRESENCE OF SPERM ON VAGINAL SMEAR SLIDES TAKEN FROM THE

  VICTIM OR ON HER CLOTHING, VIOLATED HIS RIGHT TO A FAIR TRIAL. 

  SUBSEQUENTLY THE FEDERAL DISTRICT COURT UPHELD SUCH CONTENTION IN

  A HABEAS CORPUS PETITION AND ISSUED A CONDITIONAL WRIT COMPELLING

  RESPONDENT'S RELEASE UNLESS THE STATE PROVIDED HIM WITH THE

REPORT AND RETRIED HIM, AND THE COURT OF APPEALS AFFIRMED.  BUT

  IN ADVANCE OF THE SCHEDULED RETRIAL, IT WAS DISCOVERED THAT THE

  SLIDES AND THE VICTIM'S CLOTHING HAD BEEN ROUTINELY DESTROYED

  AFTER RESPONDENT'S CONVICTION HAD BECOME FINAL, AND RESPONDENT

  MOVED TO DISMISS THE CHARGES ON THE GROUND THAT THE DESTRUCTION

  OF THIS EVIDENCE DEPRIVED HIM OF THE OPPORTUNITY FOR A FAIR

  TRIAL.  AFTER THE TRIAL COURT HAD DENIED THIS MOTION, THE

  CALIFORNIA COURT OF APPEAL AND THE SUPREME COURT DENIED

  RESPONDENT'S APPLICATIONS FOR WRITS OF PROHIBITION.  IN THE

  MEANTIME THE DISTRICT COURT GRANTED RESPONDENT'S MOTION TO

  REPLACE THE CONDITIONAL WRIT OF HABEAS CORPUS WITH AN ABSOLUTE

  WRIT BECAUSE OF THE DESTRUCTION OF EVIDENCE, AND THE COURT OF

APPEALS AFFIRMED.  HELD:  RESPONDENT FAILED TO EXHAUST AVAILABLE

  STATE REMEDIES ON THE CLAIM THAT FORMED THE BASIS FOR THE

  UNCONDITIONAL WRIT, AND HENCE HE IS ENTITLED TO NO RELIEF BASED

  UPON A CLAIM WITH RESPECT TO WHICH STATE REMEDIES HAVE NOT BEEN

  EXHAUSTED. 

     (A) SINCE THE STATE APPELLATE COURTHS DENIALS OF RESPONDENT'S

  APPLICATIONS FOR WRITS OF PROHIBITION CANNOT BE FAIRLY TAKEN TO

ADJUDICATE THE MERITS OF HIS CLAIM, AND FULL POSTTRIAL APPELLATE

  REVIEW IS AVAILABLE IF RESPONDENT IS CONVICTED AGAIN ON RETRIAL,

  THE DENIAL OF THE APPLICATIONS DID NOT EXHAUST RESPONDENT'S

  AVAILABLE STATE REMEDIES. 

     (B) NEITHER FED. RULE CIV. PROC. 60(B), WHICH PERMITS A

  DISTRICT COURT TO GRANT RELIEF FROM A FINAL ORDER, NOR 28 U.S.C.

  SEC. 2254, WHICH REQUIRES EXHAUSTION OF AVAILABLE STATE REMEDIES

  AS A PRECONDITION TO CONSIDERATION OF A FEDERAL HABEAS CORPUS

  PETITION, NOR THE TWO READ TOGETHER, PERMIT A FEDERAL HABEAS

  COURT TO MAINTAIN A CONTINUING SUPERVISION OVER A RETRIAL

  CONDUCTED PURSUANT TO A CONDITIONAL WRIT GRANTED BY THE HABEAS

  COURT. 

PER CURIAM. 

RESPONDENT DAVIS WAS CONVICTED IN 1967 IN THE SUPERIOR COURT OF LOS
ANGELES COUNTY OF RAPE, KIDNAPING, AND ORAL COPULATION; HE WAS
SENTENCED TO STATE PRISON.  ON DIRECT APPEAL IN THE CALIFORNIA COURTS,
RESPONDENT ARGUED, INTER ALIA, THAT THE FAILURE OF THE STATE PROSECUTOR
IN HIS CASE TO TURN OVER TO HIM AN EXCULPATORY LABORATORY REPORT,
DESPITE HIS REQUEST FOR ALL MATERIAL REPORTS, VIOLATED HIS FOURTEENTH
AMENDMENT RIGHT TO A FAIR TRIAL UNDER OUR DECISION IN BRADY V.
MARYLAND, 373 U.S. 83 (1963).  THE LABORATORY REPORT STATED THAT
SCIENTIFIC TESTS BY POLICE OFFICIALS FAILED TO REVEAL THE PRESENCE OF
SPERM EITHER ON VAGINAL SMEAR SLIDES TAKEN FROM THE VICTIM AFTER THE
RAPE OR ON CLOTHING WORN BY THE VICTIM AT THE TIME OF THE RAPE.  STATE
COURTS REJECTED THIS CONTENTION ON DIRECT APPEAL. 

RESPONDENT TWICE UNSUCCESSFULLY PURSUED THIS CONTENTION IN PETITIONS
FOR HABEAS CORPUS FILED UNDER 28 U.S.C. SEC. 2254 IN THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA.  IN 1972 A THIRD
HABEAS CORPUS PETITION IN THAT COURT PROVED MORE SUCCESSFUL, AND THE
DISTRICT COURT RULED THAT THE FAILURE OF THE PROSECUTOR TO SUPPLY
RESPONDENT WITH THE LABORATORY REPORT DENIED HIM A FAIR TRIAL UNDER
BRADY, SUPRA.  THE COURT ISSUED A CONDITIONAL WRIT OF HABEAS CORPUS
WHICH PROVIDED THAT HABEAS CORPUS WOULD ISSUE, COMPELLING THE
PETITIONER TO RELEASE RESPONDENT FROM CUSTODY, UNLESS CALIFORNIA
PROVIDED RESPONDENT WITH THE LABORATORY REPORT AND MOVED TO RETRY HIM
WITHIN 60 DAYS.  THIS JUDGMENT WAS AFFIRMED BY THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT.  /1/ 

CALIFORNIA MOVED TO RETRY RESPONDENT IN ACCORDANCE WITH THE TERMS OF
THE CONDITIONAL WRIT, AND THE CASE WAS SET FOR TRIAL IN STATE COURT. 
THE LABORATORY REPORT FORMING THE BASIS OF RESPONDENT'S BRADY CLAIM WAS
TURNED OVER TO HIM.  IN A DISCOVERY MOTION MADE IN ADVANCE OF TRIAL,
RESPONDENT REQUESTED THE STATE TO MAKE THE VAGINAL SMEAR SLIDES AND
CLOTHING WORN BY THE VICTIM AT THE TIME OF THE RAPE AVAILABLE TO HIM. 
ALTHOUGH THIS PHYSICAL EVIDENCE HAD BEEN AVAILABLE AT RESPONDENT'S
PRIOR TRIAL, IT WAS DESTROYED AS A MATTER OF POLICE ROUTINE SOMETIME
DURING THE SIX YEARS BETWEEN THE TIME RESPONDENT'S CONVICTION BECAME
FINAL AND ISSUANCE OF THE CONDITIONAL WRIT OF HABEAS CORPUS. 

RESPONDENT THEN MOVED IN STATE COURT TO DISMISS THE CHARGES AGAINST
HIM ON THE GROUNDS THAT THE ROUTINE DESTRUCTION OF THIS PHYSICAL
EVIDENCE CONSTITUTED AN INCURABLE SUPPRESSION OF EXCULPATORY EVIDENCE
IN VIOLATION OF BRADY WHICH DEPRIVED HIM OF ANY OPPORTUNITY, PRESENT OR
FUTURE, TO A FAIR TRIAL.  AFTER A HEARING THE STATE TRIAL COURT DENIED
RESPONDENT'S MOTION, FINDING THAT THE PHYSICAL EVIDENCE HAD NOT BEEN
WILLFULLY SUPPRESSED AND FURTHER FINDING THAT IT WOULD NOT HAVE
MATERIALLY AIDED RESPONDENT'S DEFENSE. 

RESPONDENT THEN FILED AN APPLICATION FOR A WRIT OF PROHIBITION IN
THE CALIFORNIA COURT OF APPEAL.  DURING THE PENDENCY OF THIS
APPLICATION, HE ALSO FILED A MOTION IN THE UNITED STATES DISTRICT COURT
SEEKING TO "MODIFY" ITS PRIOR CONDITIONAL WRIT OF HABEAS CORPUS AND
REPLACE IT WITH AN ORDER GRANTING AN ABSOLUTE WRIT AND ENJOINING ANY
RETRIAL ON THE PENDING STATE CHARGES.  THE BASIS FOR THIS MOTION WAS
THE DESTRUCTION OF THE CLOTHING AND SLIDES.  THE DISTRICT COURT
TEMPORARILY ENJOINED THE PENDING RETRIAL /2/ BUT DEFERRED RULING ON
RESPONDENT'S MOTION. 

THE CALIFORNIA COURT OF APPEAL AND THE CALIFORNIA SUPREME COURT
DENIED RESPONDENT'S APPLICATIONS FOR WRITS OF PROHIBITION WITHOUT
OPINION.  THE DISTRICT COURT THEN, WITHOUT PERMITTING THE TRIAL TO
PROCEED IN THE STATE COURT, CONDUCTED A HEARING OF ITS OWN.  THE COURT
HELD THAT DESTRUCTION OF THE SLIDES AND CLOTHING VIOLATED BRADY, SUPRA.
IN THE OPINION OF THE COURT THE DESTRUCTION OF THIS EVIDENCE PRECLUDED
CERTAIN ADDITIONAL SCIENTIFIC TESTING WHICH MIGHT POSSIBLY HAVE
ESTABLISHED THAT RESPONDENT WAS NOT THE PERPETRATOR OF THE CRIME, AND
SINCE THIS DEFECT WAS INCURABLE, THE COURT FOUND THAT RESPONDENT COULD
NEVER RECEIVE A FAIR TRIAL ON THE CHARGES.  RESPONDENT'S MOTION WAS
GRANTED.  /3/ THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMED, AND PETITIONER SOUGHT CERTIORARI HERE FROM THAT JUDGMENT. 

HABEAS CORPUS JURISDICTION OF PERSONS IN CUSTODY PURSUANT TO THE
JUDGMENT OF A STATE COURT IS CONFERRED ON FEDERAL COURTS BY 28 U.S.C.
SEC. 2254.  THAT STATUTE REQURES EXHAUSTION OF AVAILABLE STATE REMEDIES
AS A PRECONDITION TO CONSIDER OF A FEDERAL HABEAS CORPUS PETITION: 

     "(B) AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A

  PERSON IN CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL

  NOT BE GRANTED UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED

  THE REMEDIES AVAILABLE TO THE COURTS OF THE STATE, OR THAT THERE

  IS EITHER AN ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE

  EXISTENCE OF CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO

  PROTECT THE RIGHTS OF THE PRISONER. 

     "(C) AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE

  REMEDIES AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING

  OF THIS SECTION, IF HE HAS THE RIGHT UNDER THE LAW OF THE STATE

  TO RAISE, BY ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

SEE, E.G., NELSON V. GEORGE, 399 U.S. 224, 229 (1970); IRVIN V. DOWD,
359 U.S. 394, 404 - 405 (1959); EX PARTE ROYALL, 117 U.S. 241 (1886). 

IN THE INSTANT CASE, THE UNAVAILABILITY OF THE PHYSICAL EVIDENCE
SOUGHT BY RESPONDENT IN CONNECTION WITH HIS RETRIAL WAS NEVER RAISED
UNTIL HE FILED HIS PRETRIAL MOTION IN STATE COURT TO DISMISS THE
CHARGES.  /4/ THE ISSUE WAS NEITHER RAISED IN NOR CONSIDERED BY STATE
COURTS DURING THE COURSE OF HIS DIRECT APPEAL FROM THE FIRST CONVICTION
OR BY THE FEDERAL COURTS DURING THE PROCEEDINGS RESULTING IN ISSUANCE
OF THE CONDITIONAL WRIT OF HABEAS CORPUS.  AND RESPONDENT DOES NOT
CONTEST THAT, SHOULD HE BE CONVICTED UPON RETRIAL, FULL APPELLATE
REVIEW IN STATE COURTS WILL BE AVAILABLE ON WHATEVER CONTENTIONS HE
CHOOSES TO RAISE CONCERNING THE NONAVAILABILITY OF THE PHYSICAL
EVIDENCE NOW SOUGHT. 

UNDER OUR DECISION IN PICARD V. CONNOR, 404 U.S. 270 (1971),
EXHAUSTION OF STATE REMEDIES IS REQUIRED AS A PREREQUISITE TO
CONSIDERATION OF EACH CLAIM SOUGHT TO BE PRESENTED IN FEDERAL HABEAS: 

     " WE EMPHASIZE THAT THE FEDERAL CLAIM MUST BE FAIRLY PRESENTED

  TO THE STATE COURTS.  IF THE EXHAUSTION DOCTRINE IS TO PREVENT

  'UNNECESSARY CONFLICT BETWEEN COURTS EQUALLY BOUND TO GUARD AND

  PROTECT RIGHTS SECURED BY THE CONSTITUTION,' EX PARTE ROYALL,

  SUPRA, AT 251, IT IS NOT SUFFICIENT MERELY THAT THE FEDERAL

  HABEAS APPLICANT HAS BEEN THROUGH THE STATE COURTS.  THE RULE

  WOULD SERVE NO PURPOSE IF IT COULD BE SATISFIED BY RAISING ONE

  CLAIM IN THE STATE COURTS AND ANOTHER IN THE FEDERAL COURTS." 

 ID., AT 275 - 276. 

WHILE RECOGNIZING THE EXHAUSTION REQUIREMENT FOR INVOKING FEDERAL
HABEAS RELIEF, THE COURT OF APPEALS FOUND THAT SEC. 2254 DID NOT
PRECLUDE CONSIDERATION OF THE ADDITIONAL CONTENTION RAISED IN
RESPONDENT'S MOTION TO AMEND THE DISTRICT COURT'S ORIGINAL CONDITIONAL
ORDER FOR TWO REASONS. 

FIRST, THE COURT OF APPEALS FELT THAT RESPONDENT'S EFFORT TO SECURE
A WRIT OF PROHIBITION FROM THE STATE APPELLATE COURTS ON THE GROUNDS OF
DESTRUCTION OF THE PHYSICAL EVIDENCE CONSTITUTED SUFFICIENT EXHAUSTION
OF STATE REMEDIES UNDER THESE CIRCUMSTANCES. 

BOTH THE CALIFORNIA COURT OF APPEAL AND THE CALIFORNIA SUPREME COURT
DENIED THE APPLICATIONS WITHOUT OPINION.  IN CALIFORNIA IT IS WELL
ESTABLISHED THAT A WRIT OF PROHIBITION IS AN EXTRAORDINARY WRIT, WHOSE
USE FOR PRETRIAL REVIEW IS NORMALLY LIMITED TO "QUESTIONS OF FIRST
IMPRESSION AND GENERAL IMPORTANCE."  PEOPLE V. MEDINA, 6 CAL. 3D 484,
491, 492 P.2D 686, 690 (1972) (EN BANC).  THE DENIAL OF AN APPLICATION
FOR WRIT OF PROHIBITION DOES NOT CONSTITUTE, AND CANNOT BE FAIRLY READ
AS, AN ADJUDICATION ON THE MERITS OF THE CLAIM PRESENTED.  INCLUSION OF
AN ASSERTED POINT OF ERROR IN A DENIED PRETRIAL APPLICATION FOR WRIT OF
PROHIBITION DOES NOT BAR RAISING THE SAME POINTS ON POST-TRIAL DIRECT
APPEAL.  IBID. 

IN EX PARTE HAWK, 321 U.S. 114, 116 (1944), WE HELD THAT DENIAL OF
AN APPLICATION FOR AN EXTRAORDINARY WRIT BY STATE APPELLATE COURTS DID
NOT SERVE TO EXHAUST STATE REMEDIES WHERE THE DENIAL COULD NOT BE
FAIRLY TAKEN AS AN ADJUDICATION OF THE MERITS OF CLAIMS PRESENTED, AND
WHERE NORMAL STATE CHANNELS FOR REVIEW WERE AVAILABLE.  IN THE INSTANT
CASE, DENIAL BY STATE APPELLATE COURTS OF RESPONDENT'S APPLICATIONS
CANNOT BE FAIRLY TAKEN TO BE AN ADJUDICATION OF THE MERITS OF HIS CLAIM
AND FULL POST-TRIAL APPELLATE REVIEW IS AVAILABLE IF RESPONDENT IS
CONVICTED.  ON THESE FACTS, THE DENIAL OF RESPONDENT'S APPLICATIONS DID
NOT SERVE TO EXHAUST HIS AVAILABLE STATE REMEDIES. 

THE SECOND REASON ADVANCED BY THE COURT OF APPEALS WAS THAT THE
EXHAUSTION REQUIREMENT IS INAPPLICABLE TO THE NEW CONTENTION RAISED IN
RESPONDENT'S MOTION, SINCE THE MOTION WAS AUTHORIZED UNDER FED. RULE
CIV. PROC. 60 (B)(6) AS A MOTION FOR RELIEF FROM A FINAL ORDER.  IT
REASONED THAT SINCE THE DISTRICT COURT WOULD HAVE GRANTED AN ABSOLUTE
WRIT IF IT HAD BEEN PRESENTED WITH THE DESTRUCTION OF THE PHYSICAL
EVIDENCE AT THE TIME OF ISSUANCE OF THE CONDITIONAL WRIT, THE DISTRICT
COURT WAS JUSTIFIED UNDER THIS RULE IN AMENDING ITS PRIOR JUDGMENT TO
MAKE THE WRIT ABSOLUTE. 

RULE 60(B) PROVIDES IN PART: 

" ON MOTION AND UPON SUCH TERMS AS ARE JUST, THE COURT MAY RELIEVE A
PARTY OR HIS LEGAL REPRESENTATIVE FROM A FINAL JUDGMENT . . . FOR THE
FOLLOWING REASONS:  . . . . . . (6) ANY OTHER REASON JUSTIFYING RELIEF
FROM THE OPERATION OF THE JUDGMENT."  THE RULE DOES NOT BY ITS TERMS
SPEAK TO THE REQUIREMENT OF EXHAUSTION OF REMEDIES AS A PREREQUISITE
FOR FEDERAL HABEAS RELIEF.  THE EXHAUSTION REQUIREMENT, PICARD V.
CONNOR, 404 U.S., AT 276, IS STATUTORILY INCORPORATED IN 28 U.S.C.
SECC.  2254(B) AND (C), AND FED. RULE.  CIV.  PROC. 81(A)(2) PROVIDES: 

  " THESE RULES ARE APPLICABLE TO PROCEEDINGS FOR ADMISSION TO

  CITIZENSHIP, HABEAS CORPUS, AND QUO WARRANTO, TO THE EXTENT THAT

  THE PRACTICE IN SUCH PROCEEDINGS IS NOT SET FORTH IN STATUTES OF

  THE UNITED STATES . . . ." 

SINCE THE EXHAUSTION REQUIREMENT IS STATUTORILY CODIFIED, EVEN IF RULE
60(B) COULD BE READ TO APPLY TO THIS SITUATION IT COULD NOT ALTER THE
STATUTORY COMMAND.  THE SECOND REASON ADVANCED BY THE COURT OF APPEALS
IS NOT PERSUASIVE, THEREFORE, UNLESS IT WAS CORRECT IN ITS REASONING ON
THE ISSUE OF EXHAUSTION.  WE BELIEVE FOR THE REASONS PREVIOUSLY STATED
THAT IT WAS INCORRECT IN ITS TREATMENT OF THE EXHAUSTION ISSUE. 

RESPONDENT FAILED TO EXHAUST AVAILABLE STATE REMEDIES ON THE CLAIM
WHICH FORMED THE BASIS FOR THE UNCONDITIONAL WRIT, AND HE IS ENTITLED
TO NO RELIEF BASED UPON A CLAIM WITH RESPECT TO WHICH STATE REMEDIES
HAVE NOT BEEN EXHAUSTED.  NEITHER RULE 60(B), 28 U.S.C. SEC. 2254, NOR
THE TWO READ TOGETHER, PERMIT A FEDERAL HABEAS COURT TO MAINTAIN A
CONTINUING SUPERVISION OVER A RETRIAL CONDUCTED PURSUANT TO A
CONDITIONAL WRIT GRANTED BY THE HABEAS COURT.  CF. STEFANELLI V.
MINARD, 342 U.S. 117 (1951). 

THE MOTION OF THE RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF
THE COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO VACATE THE ORDERS WHICH IT ENTERED
SUBSEQUENT TO THE ORDER GRANTING A CONDITIONAL WRIT OF HABEAS CORPUS. 

                                  IT IS SO ORDERED. 

/1/ THE OPINIONS OF STATE COURTS ON RESPONDENT'S DIRECT APPEAL AND
OF THE DISTRICT COURT AND COURT OF APPEALS IN THE ORIGINAL HABEAS
PROCEEDINGS ARE UNPUBLISHED.  THE OPINION OF THE DISTRICT COURT IN THE
SUBSEQUENT MODIFICATION PROCEEDING IS REPORTED AT 388 F.SUPP.  105 (CD
CAL. 1974) AND THE COURT OF APPEALS' AFFIRMANCE OF THIS DECISION IS
REPORTED AT __ F.2D __(CA9 1974).  NEITHER THE MERITS OF RESPONDENT'S
ORIGINAL BRADY CLAIM RELATING TO SUPPRESSION OF THE LABORATORY REPORT
NOR THE MERITS OF RESPONDENT'S LATER CLAIM RELATING TO THE UNAVAILABLE
PHYSICAL EVIDENCE ARE BEFORE US. 

/2/ IN VIEW OF OUR DISPOSITION OF THIS CASE, WE HAVE NO OCCASION TO
CONSIDER THE APPLICATION OF OUR DECISION IN YOUNGER V. HARRIS, 401 U.S.
37 (1971), TO THESE FACTS. 

/3/ THE AMENDED ORDER OF THE DISTRICT COURT PROVIDED: 

" IT IS ORDERED, ADJUDGED AND DECREED: 

"1.  PETER J. PITCHESS, SHERIFF OF LOS ANGELES COUNTY, CALIFORNIA,
OR WHOSOEVER MAY HAVE CUSTODY OF CHARLES EDWARD DAVIS, SHALL DISCHARGE
CHARLES EDWARD DAVIS FROM CUSTODY INSOFAR AS HE IS HELD IN CUSTODY BY
NATURE OF HIS CONVICTION IN CASE NO. A220869 IN THE SUPERIOR COURT OF
THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES. 

"2.  CHARLES EDWARD DAVIS IS RELEASED AND DISCHARGED FROM ANY AND
ALL RESTRAINTS WHICH MAY HAVE BEEN IMPOSED UPON HIM BY REASON OF HIS
CONVICTION IN CASE NO. A220869 IN THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY OF LOS ANGELES. 

"3.  PURSUANT TO THE PROVISIONS OF 28 U.S.C. SEC. 2251 ALL
PROCEEDINGS WHICH HAVE BEEN TAKEN OR WHICH MAY HEREAFTER BE TAKEN
AGAINST CHARLES EDWARD DAVIS IN CASE NO. A220869 IN THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES ARE STAYED. 
"4.  ANY AND ALL PROCEEDINGS TAKEN AGAINST CHARLES EDWARD DAVIS IN
CASE NO. A220869 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR
THE COUNTY OF LOS ANGELES ARE VOID. 

"5.  THE COURT RETAINS JURISDICTION OVER THIS HABEAS CORPUS
PROCEEDING FOR ALL PURPOSES." 

/4/ THE FAILURE TO RAISE A CLAIM RELATING TO THE UNAVAILABILITY OF
THE PHYSICAL EVIDENCE FOR PURPOSES OF RETRIAL ON EITHER DIRECT APPEAL
OR IN THE ORIGINAL FEDERAL HABEAS PROCEEDINGS DID NOT STEM FROM ANY
LACK OF DILIGENCE ON RESPONDENT'S PART.  SINCE THE PHYSICAL EVIDENCE
WAS AVAILABLE AT THE ORIGINAL TRIAL, IT APPEARS UNLIKELY THAT
RESPONDENT COULD HAVE DISCOVERED ITS UNAVAILABILITYIN ADVANCE OF
PREPARATIONS FOR RETRIAL.     MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :



















GURLEY V. RHODEN, 421 U.S. 200 


       GURLEY, DBA GURLEY OIL CO. V. RHODEN, CHAIRMAN, TAX

           COMMISSION OF MISSISSIPPI

        CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

        NO. 73 - 1734.  ARGUED MARCH 18, 1975--DECIDED MAY 12,
1975;

 288 SO. 2D 868, AFFIRMED. 


    MISSISSIPPI IMPOSES A 5% SALES TAX UPON THE "GROSS PROCEEDS"

  OF RETAIL SALES OF TANGIBLE PERSONAL PROPERTY, INCLUDING

  GASOLINE, AND SUCH GROSS PROCEEDS ARE COMPUTED WITHOUT DEDUCTION

  FOR ANY TAXES.  MISSISSIPPI ALSO IMPOSES A GASOLINE EXCISE TAX ON

  EACH GALLON SOLD BY A DISTRIBUTOR, WHICH IN THE CASE OF A

  DISTRIBUTOR BRINGING GASOLINE INTO THE STATE OTHERWISE THAN BY

  COMMON CARRIER, ACCRUES AT THE TIME WHEN AND AT THE POINT WHERE

  THE GASOLINE IS BROUGHT INTO THE STATE.  AND A FEDERAL GASOLINE

  EXCISE TAX IS IMPOSED ON EACH GALLON SOLD BY A "PRODUCER," 26

U.S.C. SEC. 4081, DEFINED TO INCLUDE ANY PERSON TO WHOM GASOLINE

  IS SOLD TAX FREE, SEC. 4082.  CONTENDING THAT THE DENIAL OF A

  DEDUCTION FOR THE MISSISSIPPI AND FEDERAL EXCISE TAXES IN

  COMPUTING THE GROSS PROCEEDS OF RETAIL GASOLINE SALES FOR PURPOSE

  OF THE SALES TAX WAS UNCONSTITUTIONAL AS A TAKING OF PROPERTY

  WITHOUT DUE PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT, AND

  THAT HE ACTS AS A MERE COLLECTOR OF THE EXCISE TAXES WHOSE LEGAL

  INCIDENCE IS UPON THE PURCHASER-CONSUMER, PETITIONER, AN OPERATOR

OF SEVERAL SERVICE STATIONS IN MISSISSIPPI WHO PURCHASED HIS

  GASOLINE TAX FREE IN OTHER STATES AND TRANSPORTED IT TO

  MISSISSIPPI IN HIS OWN TRUCKS, PAID THE SALES TAXES UNDER PROTEST

  AND SUED FOR A REFUND IN STATE COURT.  HIS SUIT WAS DISMISSED,

  AND THE MISSISSIPPI SUPREME COURT AFFIRMED, HOLDING THAT THE

  LEGAL INCIDENCE OF BOTH EXCISE TAXES IS ON PETITIONER AND NOT ON

  THE PURCHASER-CONSUMER.  HELD:  THE DENIAL OF THE DEDUCTION OF

  THE MISSISSIPPI AND FEDERAL GASOLINE EXCISE TAXES IN COMPUTING

  THE GROSS PROCEEDS OF RETAIL SALES FOR PURPOSES OF THE SALES TAX

  IS NOT UNCONSTITUTIONAL.  PP. 203 - 212. 

     (A) AS REFLECTED BY THE LANGUAGE OF 26 U.S.C. SEC. 4081 AND

  4082, AND THEIR LEGISLATIVE HISTORY, THE LEGAL INCIDENCE OF THE

  FEDERAL EXCISE TAX IS ON THE STATUTORY "PRODUCER," SUCH AS

PETITIONER, AND NOT ON HIS PURCHASER-CONSUMER.  PP. 204 - 208. 

     (B) THE MISSISSIPPI SUPREME COURT'S HOLDING THAT THE LEGAL

  INCIDENCE OF THE STATE EXCISE TAS FALLS ON PETITIONER, BEING

  CONSISTENT WITH A REASONABLE INTERPRETATION OF THE STATUTE, IS

  CONCLUSIVE.  PP. 208 - 210. 

 (C) PETITIONER'S CLAIM THAT LIABILITY FOR THE EXCISE TAXES AND

  SALES TAX ARISES SIMULTANIOUSLY AND RESULTS IN A SALES TAX UPON

  THE EXCISE TAX IS WITHOUT MERIT, SINCE THE EXCISE TAXES ATTACH

  PRIOR TO THE POINT OF THE RETAIL SALE.  PP. 210 - 211. 

     (D) PETITIONER IS NOT DENIED EQUAL PROTECTION AS AGAINST

  DEALERS IN OTHER STATES WHO ARE NOT REQUIRED TO INCLUDE THE

  FEDERAL EXCISE TAS AS PART OF THE SALES TAX BASE, SINCE THE

  PROHIBITION OF THE EQUAL PROTECTION CLAUSE IS AGAINST ITS DENIAL

  BY THE STATE AS BETWEEN TAXPAYERS SUBJECT TO ITS LAWS.  PP. 211 -

  212. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL

  OTHER MEMBERS JOINED EXCEPT DOUGLAS, J., WHO TOOK NO PART IN THE

  CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

MISSISSIPPI IMPOSES A 5% SALES TAX UPON THE "GROSS PROCEEDS OF THE
RETAIL SALES" OF TANGIBLE PERSONAL PROPERTY, INCLUDING GASOLINE. 
MISS.  CODE ANN. SEC. 27 - 65 - 17 (SUPP. 1974).  /1/ PETITIONER
OPERATES AS A SOLE PROPIERTORSHIP FROM WEST MEMPHIS, ARKANSAS.  HE OWNS
AND OPERATES FIVE GASOLINE SERVICE STATIONS IN MISSISSIPPI AND ALSO
SELLS GASOLINEE AT FOUR OTHER STATIONS IN MISSISSIPPI ON A CONSIGNMENT
BASIS.  HE PURCHASES HIS GASOLINE TAX FREE FROM SOURCES IN TENNESSEE
AND ARKANSAS.  HE TRANSPORTS THE GASOLINE TO HIS MISSISSIPPI STATIONS
IN HIS OWN TRUCKS.  HE HOLDS A MISSISSIPPI DISTRIBUTOR'S PERMIT AND IS
ALSO FEDERALLY LICENSED BECAUSE HE IS A "PRODUCER" WITHIN THE MEANING
OF THE INTERNAL REVENUE CODE AS ONE WHO SELLS GASOLINE BOUGHT TAX FREE
FROM OTHER "PRODUCERS."  /2/ HE ADDS TO HIS PUMP PRICES THE AMOUNT OF A
MISSISSIPPI GASOLINE EXCISE TAX NOW NINE CENTS PER GALLON, MISS.  CODE
ANN. SEC. 27 - 55 - 11 (SUPP. 1974), AND A FEDERAL GASOLINE EXCISE TAX
OF FOUR CENTS PER GALLON, 26 U.S.C. SEC. 4081.  /3/ THE STATE COMPUTES
HIS GROSS PROCEEDS OF RETAIL SALES "WITHOUT ANY DEDUCTION FOR . . .
TAXES OF ANY KIND . . . ."  MISS.  CODE ANN. SEC. 27 - 65 - 3(H) (SUPP.
1974).  /4/ PETITIONER CONTENDS THAT THE DENIAL OF A DEDUCTION OF THE
AMOUNT OF THE EXCISE TAXES ADDED TO HIS PUMP PRICES IN THE COMPUTATION
OF HIS "GROSS PROCEEDS OF THE RETAIL SALES" OF GASOLINE, AND THE
RESULTANT APPLICATION OF THE 5% SALES TAX TO SO MUCH OF HIS PUMP PRICES
AS REFLECTS THE AMOUNT OF THE TAXES, ARE UNCONSTITUTIONAL.  HE
THEREFORE PAID THE SALES TAXES TO THAT EXTENT UNDER PROTEST, AND SUED
FOR A REFUND IN MISSISSIPPI CHANCERY COURT, HINDS COUNTY.  RESPONDENT
CROSS-CLAIMED FOR UNPAID SALES TAXES ACCURING AFTER THE FILING OF THE
SUIT.  /5/ AFTER TRIAL, THE CHANCERY COURT DISMISSED PETITIONER'S SUIT
AND ENTERED JUDGMENT FOR RESPONDENT ON THE CROSS-CLAIM.  THE SUPREME
COURT OF MISSISSIPPI AFFIRMED.  288 SO. 2D 868.  WE GRANTED CERTIORARI,
419 U.S. 1018 (1974).  WE AFFIRM. 

        I 

PETITIONER'S PRINCIPAL ARGUMENT IS THAT HE ACTS AS A MERE COLLECTOR
OF THE TAXES FOR THE TWO GOVERNMENTS BECAUSE THE LEGAL INCIDENCE OF
BOTH EXCISE TAXES IS UPON THE PURCHASER-CONSUMER.  UPON THAT PREMISE,
HE ARGUES:  " CONSEQUENTLY, TO IMPOSE THE MISSISSIPPI SALES TAX UPON
AMOUNTS SO RECEIVED BY (PETITIONER) WOULD BE TO TAX HIM UPON GROSS
RECEIPTS WHICH ARE NOT HIS GROSS RECEIPTS, BUT RATHER THE GROSS
RECEIPTS OF (THE TWO GOVERNMENTS).  THIS WOULD NOT ONLY VIOLATE THE
FUNDAMENTAL CONCEPTION OF RIGHT AND JUSTICE, BUT IT WOULD BE TAKING
(PETITIONER'S) PROPERTY WITHOUT DUE PROCESS OF THE FOURTEENTH AMENDMENT
. . . ."  BRIEF FOR PETITIONER 37.  HE CITES IN SUPPORT THE STATEMENT
IN HOEPER V. TAX COMM'N, 284 U.S. 206, 215 (1931), THAT "ANY ATTEMPT BY
A STATE TO MEASURE THE TAX ON ONE PERSON'S PROPERTY OR INCOME BY
REFERENCE TO THE PROPERTY OR INCOME OF ANOTHER IS CONTRARY TO DUE
PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT." 

ALSO, PETITIONER ADVANCES AN ALTERNATIVE ARGUMENT LIMITED TO THE
DENIAL OF THE DEDUCTION OF THE AMOUNT OF THE FEDERAL EXCISE TAX.  HE
CONTENDS THAT THE DENIAL RESULTS TO THAT EXTENT IN "A STATE TAX ON . .
. MONIES HELD IN TRUST BY (PETITIONER) AS AGENT FOR THE UNITED STATES
(AND) IS, IN ESSENCE, A TAX UPON THE UNITED STATES . . . (THAT) . . .
IS CLEARLY UNCONSTITUTIONAL" AS VIOLATING THE CONSTITUTIONAL IMMUNITY
OF THE UNITED STATES AND ITS PROPERTY FROM TAXATION BY THE STATES.  M'
CULLOCH V. MARYLAND, 4 WHEAT.  316 (1819).  BRIEF FOR PETITIONER 48. 

PETITIONER'S ARGUMENT CAN PREVAIL, AS HE APPEARENTLY CONCEDES, ONLY
IF THE LEGAL INCIDENCE OF THE EXCISE TAXES IS NOT UPON PETITIONER, BUT
UPON THE PURCHASER-CONSUMER.  OUR TASK THEREFORE IS TO DETERMINE UPON
WHOM THE LEGAL INCIDENCE OF EACH TAX RESTS. 

II 

THE ECONOMIC BURDEN OF TAXES INCIDENT TO THE SALE OF MERCHANDISE IS
TRADITIONALLY PASSED ON TO THE PURCHASERS OF THE MERCHANDISE. 
THEREFORE, THE DECISION AS TO WHERE THE LEGAL INCIDENCE OF EITHER TAX
FALLS IS NOT DETERMINED BY THE FACT THAT PETITIONER, BY INCREASING HIS
PUMP PRICES IN THE AMOUNTS OF THE TAXES, SHIFTED THE ECONOMIC BURDEN OF
THE TAXES FROM HIMSELF TO THE PURCHASER-CONSUMER.  THE COURT HAS LAID
TO REST DOUBTS ON THAT SCORE RAISED BY SUCH DECISIONS AS PANHANDLE OIL
CO. V. MISSISSIPPI EX REL. KNOX, 277 U.S. 218 (1928); INDIAN MOTORCYCLE
CO. V. UNITED STATES, 283 U.S. 570 (1931); AND KERN-LIMERICK, INC. V.
SCURLOCK, 347 U.S. 110 (1954), AT LEAST UNDER TAXING SCHEMES, AS HERE,
WHERE NEITHER STATUTE REQUIRED PETITIONER TO PASS THE TAX ON TH THE
PURCHASER-CONSUMER.  SEE ALABAMA V. KING & BOOZER, 314 U.S. 1 (1941);
LASH'S PRODUCTS CO. V. UNITED STATES, 278 U.S. 175 (1929); WHEELER
LUMBER CO. V. UNITED STATES, 281 U.S. 572 (1930); AGRICULTURAL NAT.
BANK V. TAX COMM'N, 392 U.S. 339 (1968); AMERICAN OIL CO. V. NEILL, 380
U.S. 451 (1965). 

A MAJORITY OF COURTS THAT HAVE CONSIDERED THE QUESTION HAVE FILED IN
AGREEMENT WITH THE MISSISSIPPI SUPREME COURT IN THIS CASE, THAT THE
LEGAL INCIDENCE OF THE FEDERAL EXCISE TAX IS UPON THE STATUTORY
"PRODUCER" SUCH AS PETITIONER AND NOT UPON THE STATUTORY "PRODUCER"
SUCH AS PETITIONER AND NOT UPON HIS PURCHASER-CONSUMER.  MARTIN OIL
SERVICE, INC. V. DEPARTMENT OF REVENUE, 49 ILL. 2D 260, 273 N.E. 2D 823
(1971); PEOPLE V. WERNER, 364 ILL. 594, 5 N.E. 2D 238 (1936); SUN OIL
CO. V. GROSS INCOME TAX DIVISION, 238 INC. 111, 149 N.E. 2D 115 (1958);
STATE V. THONI OIL MAGIC BENZOL GAS STATIONS, INC., 121 GA. APP. 454,
174 S.E. 2D 224, AFF'D, 226 GA. 883, 178 S.E. 2D 173 (1970).  CONTRA,
SEE TAX REVIEW BOARD V. ESSO STANDARD DIVISION, 424 PA. 355, 227 A. 2D
657 (1967); CF. STANDARD OIL CO. V. STATE, 283 MICH. 85, 276 N.W. 908
(1937); STANDARD OIL CO. V. STATE TAX COMM'R, 71 N.D. 146, 299 N.W. 447
(1941).  OUR INDEPENDENT EXAMINATION OF THE FEDERAL STATUTE AND ITS
LEGISLATIVE HISTORY PRESUADES US ALSO THAT THE LEGAL INCIDENCE OF THE
FEDERAL TAX FALLS UPON THE STATUTORY "PRODUCER"  SUCH AS PETITIONER. 

THE WORDING OF THE FEDERAL STATUTE PLAINLY PLACES THE INCIDENCE OF
THE TAX UPON THE "PRODUCER," THAT IS, BY DEFINITION, UPON FEDERALLY
LICENSED DISTRIBUTORS OF GASOLINE SUCH AS PETITIONER.  SECTION 4082
PROVIDES THAT "(ANY PERSON TO WHOM GASOLINE IS SOLD TAX-FREE . . .
SHALL BE CONSIDERED THE PRODUCER OF SUCH GASOLINE," AND SEC. 4081
EXPRESSLY IMPOSES THE TAX "ON GASOLINE SOLD BY THE PRODUCER . . .." 
(EMPHASIS ADDED.)  THE CONGRESSIONAL PURPOSE TO LAY THE TAX ON THE
"PRODUCER" AND ONLY UPON THE "PRODUCER" COULD NOT BE MORE PLAINLY
REVEALED.  PERSUASIVE ALSO THAT SUCH WAS CONGRESS' PURPOSE IS THE FACT
THAT, IF THE PRODUCER DOES NOT PAY THE TAX, THE GOVERNMENT CANNOT
COLLECT IT FROM HIS VENDEES; THE STATUTE HAS NO PROVISION MAKING THE
VENDEE LIABLE FOR ITS PAYMENT.  /6/  AGRICULTURAL NAT. BANK V. TAX
COMM'N, 392 U.S., AT 347. 

IT IS TRUE THAT THE PURCHASER-CONSUMER WHO BUYS GASOLINE FOR USE ON
HIS FARM, 26 U.S.C. SEC. 6420(A), OR FOR OTHER NONHIGHWAY PURPOSES,
SEC. 6421(A), OR FOR A LOCAL TRANSIT SYSTEM, SEC. 6421(B), CAN RECOVER
PAYMENT OF ALL OR PART OF THE AMOUNT OF THE TAX PASSED ON BY THE
"PRODUCER."  BUT THIS IS NOT PROOF THAT CONGRESS LAID THE TAX UPON THE
PURCHASER-CONSUMER.  RATHER, SINCE THE PROCEEDS OF THIS TAX GO NOT INTO
THE GENERAL TREASURE, BUT INTO A SPECIAL FUND USED TO DEFRAY THE COST
OF THE FEDERAL HIGHWAY SYSTEM, S. REP. NO. 367, 87TH CONG., 1ST SESS.
(1961), THE REFUNDS AUTHORIZED SIMPLY REFLECT A CONGRESSIONAL
DETERMINATION THAT, BECAUSE THE ECONOMIC BURDEN OF SUCH TAXES IS
TRADITIONALLY PASSED ON TO THE PURCHASER-CONSUMER IN THE FORM OF
INCREASED PUMP PRICES, FARMERS AND OTHER OFF-HIGHWAY USERS SHOULD BE
RELIEVED OF THE ECONOMIC BURDEN OF THE COST OF THE HIGHWAY PROGRAM, AND
THAT THE COST SHOULD BE BORNE ENTIRELY BY MOTORISTS WHO USE GASOLINE TO
DRIVE ON THE HIGHWAYS.  MARTIN OIL SERVICE, INC. V. DEPARTMENT OF
REVENUE, 49 ILL. 2D, AT 265, 273 N.E. 2D, AT 827. 

PETITIONER CITES REFERENCES BY PRESIDENT JOHNSON TO THE TAX AS A
"USER TAX" AS PROVING THAT IT IS NOT AND NEVER WAS INTENDED THAT THE
TAX BE IMPOSED UPON THE "PRODUCER," BUT RATHER UPON THE PURCHASER
CONSUMER.  PRESIDENT JOHNSON'S MESSAGE TO CONGRESS OF MAY 17, 1965, ON
THE SUBJECT OF REFORM OF THE EXCISE TAX STRUCTURE STATED THAT SUCH
"REFORM . . . WILL . . . LEAVE . . . EXCISES ON ALCOHOLIC BEVERAGES,
TOBACCO, GASOLINE, TIRES, TRUCKS, AIR TRANSPORTATION (AND A FEW OTHER
USER-CHANGES AND SPECIAL EXCISES) . . . ."  H. R. DOC. NO. 173, 89TH
CONG., 1ST SESS., 3 (1965).  (EMPLHASIS ADDED.)  PETITIONER RELIES ALSO
ON THE REPORT OF THE HOUSE COMMITTEE ON WAYS AND MEANS ACCOMPANYING
H.R. 8371, H. R. REP. NO. 433, 89TH CONG., 1ST SESS., 12 - 13 (1965). 
IT STATES:  " TAXES SUCH AS THOSE ON GASOLINE . . . ARE USER TAXES . .
. . A TAX ON GASOLINE TAXES USERS OF THE HIGHWAYS IN ROUGH PROPORTION
TO THEIR USE OF THE SERVICE."  (EMPHASIS ADDED.)  THESE REFERENCES
OBVIOUSLY WERE NOT MADE IN THE CONTEXT OF CONSIDERATION OF THE LEGAL
INCIDENCE OF THE GASOLINE TAX BUT MERELY AS RECOGNITION THAT THE
REALITY IS THAT USERS BEAR THE ECONOMIE BURDEN OF THE TAX.  THESE
REFERENCES WERE REJECTED IN MARTIN OIL SERVICE, INC., SUPRA, BY THE
ILLINOIS SUPREME COURT AS IRRELEVANT UPON THE QUESTION WHETHER THE TAX
MUST BE CONSIDERED AS ONE WHOSE INCIDENCE RESTS ON THE PURCHASER
CONSUMER.  WE AGREE WITH, AND ADOPT, THAT COURT'S ANALYSIS: 

" WE CONSIDER THE REFERENCES TO THE TAX AS A 'USER TAX' WERE NOT
INTENDED TO BE DESCRIPTIVE OF THE LEGAL INCIDENCE OF THE GASOLINE TAX. 
IT IS NOT DISPUTED THAT THE ULTIMATE ECONOMIC BURDEN OF THE TAX RESTS
UPON THE PURCHASER-CONSUMER.  A PRACTICAL NONTECHNICAL DESCRIPTION OF
THE TAX AS A 'USER TAX' IS EXPLAINABLE, CONSISTENTLY WITH THE LEGAL
INCIDENCE OF THE TAX BEING ON THE PRODUCER.  THE ECONOMIC BURDEN OF THE
TAX HAS NO RELEVANCE TO THE ISSUE BEFORE US."  49 ILL. 2D, AT 264, 273
N.E. 2D, AT 826. 

WE THEREFORE HOLD THAT THE MISSISSIPPI SUPREME COURT, WHICH RELIED
UPON MARTIN OIL SERVICE, INC., SEE 288 SO. 2D, AT 873, PROPERLY
CONCLUDED THAT THE FEDERAL EXCISE TAX IS IMPOSED SOLELY ON STATUTORY
"PRODUCERS" SUCH AS PETITIONER AND NOT ON THE PURCHASER. 

        III 

THE MISSISSIPPI SUPREME COURT HELD THAT THE LEGAL INCIDENCE OF THE
MISSISSIPPI EXCISE TAX ALSO FALLS UPON PETITIONER.  IT IS TRUE OF
COURSE THAT THIS COURT IS THE FINAL JUDICIAL ARBITER OF THE QUESTION
WHERE THE LEGAL INCIDENCE OF THE FEDERAL EXCISE TAX FALLS.  BUT A
STATE'S HIGHEST COURT IS THE FINAL JUDICIAL ARBITER OF THE MEANING OF
STATE STATUTES, ALABAMA V. KING & BOOZER, 314 U.S., AT 9 - 10, AND
THEREFORE OUR REVIEW OF THE HOLDING OF A STATE COURT RESPECTING THE
LEGAL INCIDENCE OF A STATE EXCISE TAX IS GUIDED BY THE FOLLOWING:  "
WHEN A STATE COURT HAS MADE ITS OWN DEFINITIVE DETERMINATION AS TO THE
OPERATING INCIDENCE, OUR TASK IS SIMPLIFIED.  WE GIVE THIS FINDING
GREAT WEIGHT IN DETERMINING THE NATURAL EFFECT OF A STATUTE, AND IF IT
IS CONSISTENT WITH THE STATUTE'S REASONABLE INTERPRETATION IT WILL BE
DEEMED CONCLUSIVE."  AMERICAN OIL CO. V. NEILL, 380 U.S., AT 455 -
456. 

THIS IS MANIFESTLY A CASE IN WHICH THE HOLDING OF THE MISSISSIPPI
SUPREME COURT THAT THE LEGAL INCIDENCE OF THE STATE EXCISE TAX FALLS
UPON PETITIONER SHOULD BE "DEEMED CONCLUSIVE."  MISSISSIPPI CODE ANN.
SEC. 27 - 55 - 11 (SUPP. 1974), PROVIDES THAT THE TAX "ATTACHES ON THE
DISTRIBUTOR OR OTHER PERSON FOR EACH GALLON OF GASOLINE BROUGHT INTO
THE STATE . . ."  IN THE CASE OF DISTRIBUTION OF GASOLINE BY
DISTRIBUTORS, SUCH AS PETITIONER, WHO BRING GASOLINE INTO MISSISSIPPI
"BY MEANS OTHER THAN THROUGH A COMMON CARRIER."  THE MISSISSIPPI
SUPREME COURT RELIED PRIMARILY UPON THIS PROVISION IN REACHING ITS
CONCLUSION, AND WE CANNOT SAY THAT ITS CONCLUSION IS NOT "CONSISTENT
WITH THE STATUTE'S REASONABLE INTERPRETATION." 

OUR DETERMINATION IS BUTTRESSED BY THE HOLDING OF A THREE-JUDGE
DISTRICT COURT IN UNITED STATES V. SHARP, 302 F. SUPP. 668 (SD MISS. 
1969).  THE UNITED STATES SOUGHT A DECLARATORY JUDGMENT THAT THE
MISSISSIPPI TAX WAS INVALID WITH RESPECT TO GASOLINE PURCHASED BY THE
FEDERAL GOVERNMENT, ITS AGENCIES, AND PERSONNEL WHEN USED ON
MISSISSIPPI HIGHWAYS ON GOVERNMENT BUSINESS.  THE THREE-JUDGE COURT
HELD THAT THE LEGAL INCIDENCE OF THE STATE TAX WAS UPON THE DISTRIBUTOR
VENDOR AND NOT UPON THE PURCHASER UNITED STATES, AND DISMISSED THE
ACTION.  THE COURT STATED: 

" WE DO NOT QUARREL WITH THE CONTENTION THAT A STATUTE'S PRACTICAL
OPERATION AND EFFECT DETERMINES WHERE THE LEGAL INCIDENCE OF THE TAX
FALLS.  WE SIMPLY AGREE THAT THE TAX BURDEN IN THE MISSISSIPPI STATUTE
FALLS PLAINLY AND SQUARELY ON THE DISTRIBUTOR TO WHOM THE STATE LOOKS
FOR THE PAYMENT OF THE TAX, ALBEIT THE AMOUNT OF THE TAX MAY ULTIMATELY
BE BORNE BY THE VENDEE, IN THIS CASE THE FEDERAL GOVERNMENT."  ID., AT
671. 

PETITIONER ARGUES, HOWEVER, THAT THE DECISION OF THE MISSISSIPPI
SUPREME COURT IS FORECLOSED BY THIS COURT'S DECISION IN PANHANDLE OIL
CO. V. KNOX, 277 U.S. 218 (1928).  THE ARGUMENT IS WITHOUT MERIT.  IN
THAT CASE MISSISSIPPI SUED PANHANDLE OIL CO. TO RECOVER GASOLINE EXCISE
TAXES IMPOSED BY CHAPTER 116 OF THE 1922 LAWS OF MISSISSIPPI, AS
AMENDED, A PREDECESSOR TO THE PRESENT MISS.  CODE ANN. SEC. 27 - 55 -
11.  THE TAXES CLAIMED WERE ON ACCOUNT OF SALES MADE BY PANHANDLE TO
THE UNITED STATES FOR THE USE OF ITS COAST GUARD FLEET IN SERVICE IN
THE GULF OF MEXICO, AND OF ITS VETERANS' HOSPITAL AT GULFPORT,
MISSISSIPPI.  THE COURT, OVER THE DISSENTS OF JUSTICES HOLMES,
BRANDEIS, STONE, AND MC REYNOLDS, HELD THAT THE TAX AS APPLIED WAS
INVALID AS A TAX UPON THE MEANS USED BY THE UNITED STATES FOR
GOVERNMENTAL PURPOSES.  THE DISSENTERS' VIEW WAS THAT IT WAS NOT A TAX
UPON MEANS USED BY THE UNITED STATES, BUT THAT PANHANDLE MERELY SHIFTED
THE ECONOMIC BURDEN OF THE TAX TO ITS VENDEES BY ADDING IT TO THE PRICE
OF THE GASOLINE.     THE COURT'S PANHANDLE OPINION DID NOT FOCUS UPON
WHETHER THE MISSISSIPPI STATUTE LAID THE LEGAL INCIDENCE OF THE TAX
UPON THE DISTRIBUTOR.  RATHER THE RATIONALE WAS THAT THE TAX WAS BAD
BECAUSE, IF LAID UPON DISTRIBUTORS, THE DISTRIBUTORS WERE ABLE TO SHIFT
ITS BURDEN TO THE PURCHASER.  THE COURT HAS SINCE EXPRESSLY ABANDONED
THAT VIEW, AND HAS ACCEPTED THE ANALYSIS OF THE DISSENT.  IN ALABAMA V.
KING & BOOZER, 314 U.S., AT 9, THE COURT HELD:  " SO FAR AS A DIFFERENT
VIEW HAS PREVAILED, SEE PANHANDLE OIL CO. V. KNOX . . ., WE THINK IT NO
LONGER TENABLE." 

        IV 

FINALLY, PETITIONER ARGUES THAT EVEN IF THE LEGAL INCIDENCE OF THE
TWO TAXES IS ON HIM RATHER THAN ON THE CONSUMER, THE PROVISION OF SEC.
27 - 65 - 17 DENYING THE DEDUCTION OF THE TAXES IN THE COMPUTATION OF
HIS "GROSS PROCEEDS OF . . . RETAIL SALES" IS INVALID FOR TWO REASONS. 

FIRST, HE ARGUES:  " SINCE (PETITIONER) SELLS ONLY TO THE ULTIMATE
CONSUMER, THE EXCISE TAX ATTACHES SIMULTANEOUSLY WITH THE SALE AND WITH
THE SALES TAX; THEREFORE, THERE CAN BE NO SALES TAX UPON THE EXCISE
TAX."  BRIEF FOR PETITIONER 47.  IN OTHER WORDS, HIS ARGUMENT IS THAT
THE LIABILITY FOR THE EXCISE TAXES, STATE AND FEDERAL, AND THE
LIABILITY FOR THE SALES TAX ARISE SIMULTANEOUSLY, AND IN THAT
CIRCUMSTANCE, ONE SHOULD NOT BE INCLUDED IN COMPUTING THE OTHER.  WE
READ THE OPINION OF THE MISSISSIPPI SUPREME COURT TO REJECT THIS
ARGUMENT AND TO HOLD THAT THE TAXES FALL ON THE "PRODUCER AT A TIME
PRIOR TO THE POINT OF RETAIL SALE OR OTHER CONSUMER TRANSACTION . . . "
288 SO. 2D, AT 870.  THAT INTERPRETATION OF THE MISSISSIPPI STATUTES
IS, OF COURSE, BINDING ON US AS RESPECTS THE STATE EXCISE TAX; INDEED,
THE INTERPRETATION IS NOT MERELY "REASONABLE," BUT SEEMS OBVIOUS IN
LIGHT OF THE EXPRESS PROVISION OF SEC. 27 - 55 - 11 THAT IN CASES OF
DISTRIBUTORS, LIKE PETITIONER, BRINGING GASOLINE INTO MISSISSIPPI IN
THEIR OWN TRUCKS THE TAX "ATTACHES . . . AT THE TIME WHEN AND AT THE
POINT WHERE SUCH GASOLINE IS BROUGHT INTO THE STATE."  FURTHER, WE
AGREE WITH THE MISSISSIPPI COURT THAT THE FEDERAL TAX ALSO ATTACHES
PRIOR TO THE POINT OF THE RETAIL SALE.  HOWEVER, EVEN IF THE LIABILITY
FOR THE EXCISE TASES DID ARISE SIMULTANEOUSLY WITH THE SALES TAX, WE
CANNOT SEE ANY LEGAL DISTINCTION, CONSTITUTIONAL OR OTHERWISE, ARISING
FROM THAT CIRCUMSTANCE.  THE ILLINOIS SUPREME COURT ALSO ADDRESSED THIS
CONTENTION WHEN MADE IN MARTIN OIL SERVICE, INC., SUPRA, AS TO THE
FEDERAL EXCISE TAX, AND REJECTED IT FOR THE FOLLOWING REASONS, WITH
WHICH WE AGREE. 

" THE LEGAL INCIDENCE OF THE FEDERAL GASOLINE TAX IS ON THE
PRODUCER, WHO IS UNDER NO LEGAL DUTY TO PASS THE BURDEN OF THE TAX ON
TO THE TAX CONSUMER.  IF HE DOES PASS ON THE BURDEN OF THE TAX IT IS
SIMPLY DONE BY CHARGING THE CONSUMER A HIGHER PRICE.  THIS HIGHER PRICE
IS THE RESULT OF THE ADDED COST, BECAUSE OF THE BURDEN OF THE FEDERAL
TAX, TO THE PRODUCER IN SELLING HIS GASOLINE.  IT IS NO FIFFERENT FROM
OTHER COSTS HE INCURS IN BRINGING HIS PRODUCT TO MARKET, INCLUDING THE
COSTS OF RAW MATERIAL, ITS PROCESSING AND ITS DELIVERY.  ALL THESE
COSTS ARE INCLUDABLE IN HIS 'GROSS RECEIPTS' OR THE 'CONSIDERATION' HE
RECEIVES FOR HIS GASOLINE.  NO REASON HAS BEEN GIVEN . . . WHY THE COST
OF THE GASOLINE TAX SHOULD BE REGARDED DIFFERENTLY FROM THE OTHER COSTS
OF THE PRODUDER-RETAILER AND WE PERCEIVE NONE."  49 ILL. 2D, AT 268,
273 N.E. 2D, AT 828. 

SECOND, PETITIONER ARGUES THAT "SINCE OTHER INDEPENDENT OIL DEALERS
IN THOSE STATES WHICH DO NOT INCLUDE THE FEDERAL EXCISE TAX AS A PART
OF THE SALES TAX BASE WOULD NOT BE FORCED TO PAY SUCH TAX (E.G.,
PENNSYLVANIA, SEE TAX REVIEW BOARD V. ESSO STANDARD, SUPRA), THEN THE
ARBITRARY IMPOSITION OF SUCH TAX UPON (PETITIONER) AND THOSE OTHER
INDEPENDENT OIL DEALERS IN HIS CLASS (WHO HAVE TO PAY A SALE TAX ON
FEDERAL EXCISE TAX) WOULD DEPRIVE (PETITIONER) OF THE FOURTEENTH
AMENDMENT'S GUARANTEE TO EQUAL PROTECTION OF THE LAWS."  BRIEF FOR
PETITIONER 21.  THE CONTENTION IS PATENTLY FRIVOLOUS.  THE PROHIBITION
OF THE EQUAL PROTECTION CLAUSE IS AGAINST ITS DENIAL BY THE STATE, HERE
MISSISSIPPI, AS BETWEEN TAXPAYERS SUBJECT TO ITS LAWS.  PETITIONER
MAKES NO CLAIM OF UNCONSTITUTIONAL DISCRIMINATION BY MISSISSIPPI OF ITS
SALES TAX ACT AMONG TAXPAYERS SUBJECT TO THAT TAX. 

                                  AFFIRMED. 

/1/ SECTION 27 - 65 - 17 PROVIDES IN PERTINENT PART: 

" UPON EVERY PERSON ENGAGING OR CONTINUING WITHIN THIS STATE IN THE
BUSINESS OF SELLING ANY TANGIBLE PERSONAL PROPERTY WHATSOEVER, THERE IS
HEREBY LEVIED, ASSESSED AND SHALL BE COLLECTED A TAX EQUAL TO FIVE
PERCENT (5%) OF THE GROSS PROCEEDS OF THE RETAIL SALES OF THE BUSINESS,
EXCEPT AS OTHERWISE PROVIDED HEREIN.  . . ." 

/2/ 26 U.S.C. SEC. 4082, INFRA, N. 3. 

/3/ MISSISSIPPI CODE ANN. SEC. 27 - 55 - 11 PROVIDES: 

" ANY PERSON IN BUSINESS AS A DISTRIBUTOR OF GASOLINE . . . SHALL
PAY FOR THE PRIVILEGE OF ENGAGING IN SUCH BUSINESS . . . AN EXCISE TAX
EQUAL TO (SPECIFIED) CENTS PER GALLON ON ALL GASOLINE . . . SOLD . . .
IN THIS STATE FOR SALE (OR) USE ON THE HIGHWAYS . . . .,

 * * * * * 

" WITH RESPECT TO DISTRIBUTORS . . . WHO BRING . . . INTO THIS STATE
GASOLINE BY MEANS OTHER THAN THROUGH A COMMON CARRIER, THE TAX ACCRUES
AND THE TAX LIABILITY ATTACHES ON THE DISTRIBUTOR . . . AT THE TIME
WHEN AND AT THE POINT WHERE SUCH GASOLINE IS BROUGHT INTO THE STATE." 

TITLE 26 U.S.C. SEC. 4081 PROVIDES:  "(A) IN GENERAL.  THERE IS
HEREBY IMPOSED ON GASOLINE SOLD BY THE PRODUCER OR IMPORTER THEREOF, OR
BY ANY PRODUCER OF GASOLINE, A TAX OF 4 CENTS A GALLON." 

TITLE 26 U.S.C. SEC. 4082 PROVIDES:  "(A) PRODUCER . . . ANY PERSON
TO WHOM GASOLINE IS SOLD TAX-FREE UNDER THIS SUBPART BE CONSIDERED THE
PRODUCER OF SUCH GASOLINE." 

/4/ SECTION 27 - 65 - 3(H) PROVIDES:  "' GROSS PROCEEDS OF SALES'
MEANS THE VALUE PROCEEDING OR ACCRUING FROM THE FULL SALE PRICE OF
TANGIBLE PERSONAL PROPERTY . . . WITHOUT ANY DEDUCTION FOR . . . TAXES
OF ANY KIND EXCEPT THOSE EXPRESSLY EXEMPT . . . ." 

/5/ PETITIONER SOUGHT REFUNDS OF $62,782.57, AND RESPONDENT CROSS
CLAIMED FOR $29,131.19. 

/6/ ACT OF JUNE 5, 1966, C. 645, MISS.  GEN.  LAWS 1343, 1347, IN
EFFECT DURING SOME OF THE TAX YEARS INVOLVED, BUT SINCE REPEALED,
PROVIDED ONLY THAT THE EXCISE TAX "MAY BE PASSED ON TO THE ULTIMATE
CONSUMER . . . ."  (EMPHASIS ADDED.)  IN CONTRAST, THE MASSACHUSETTS
SALES TAX LAW BEFORE US IN AGRCULTURAL NAT. BANK.  V. TAX COMM'N, 392
U.S. 339 (1968), EXPRESSLY PROVIDED THAT THE TAX "'SHALL BE PAID BY THE
PURCHASER,'" AND THAT THE VENDOR "'SHALL ADD TO THE SALES PRICE AND
SHALL COLLECT FROM THE PURCHASER THE FULL AMOUNT OF THE TAX IMPOSED." 
ID., AT 347. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

CHARLES R. DAVIS ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS WALTER A. ARMSTRONG, JR. 

HUNTER M. GHOLSON ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS WILLIAM G. BURGIN, JR.
..END :






















JOHNSON V. MISSISSIPPI, 421 U.S. 231 


       JOHNSON ET AL. V. MISSISSIPPI ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

      FIFTH CIRCUIT

        NO. 73 - 1531.  ARGUED FEBRUARY 26, 1975--DECIDED MAY 12,

           1975; 488 F.2D 284, AFFIRMED. 


    PETITIONERS, SIX NEGROES, WHO HAD BEEN PICKETING AND URGING

  BOYCOTT OF CERTAIN BUSINESS ESTABLISHMENTS IN VICKSBURG, MISS,

  BECAUSE OF THEIR ALLEGED RACIAL DISCRIMINATION IN EMPLOYMENT,

  WERE ARRESTED WITH OTHERS AND CHARGED WITH UNLAWFULLY CONSPIRING

  TO BRING ABOUT A BOYCOTT.  THOSE ARRESTED THEN SOUGHT REMOVAL OF

  THE PROSECUTIONS FROM STATE TO FEDERAL COURT PURSUANT TO 28

  U.S.C. SEC. 1443 (1), WHICH PROVIDES FOR REMOVAL OF STATE

  PROCEEDINGS "(AGAINST ANY PERSON WHO IS DENIED OR CANNOT ENFROCE

  IN THE COURTS OF SUCH STATE A RIGHT UNDER ANY LAW PROVIDING FOR

 THE EQUAL CIVIL RIGHTS OF CITIZENS," ALLEGING THAT THE CONSPIRACY

  STATUTES UNDERLYING THE CHARGES WERE UNCONSTITUTIONAL, THAT THE

  CHARGES WERE GROUNDLESS AND MADE SOLELY TO DEPRIVE THOSE ARRESTED

  OF THEIR FEDERALLY PROTECTED RIGHTS, AND MORE PARTICULARLY THAT

  THEIR ACTIVITIES WERE PROTECTED BY 18 U.S.C. SEC. 245 (TITLE I OF

  THE CIVIL RIGHTS ACT OF 1968).  SECTION 245(B)(2), INTER ALIA,

  MAKES IT A CRIME BY "FORCE OR THREAT OF FORCE" TO INJURE,

  INTIMIDATE, OR INTERFERE WITH ANY PERSON BECAUSE HE HAS BEEN

"PARTICIPATING LAWFULLY IN SPEECH OR PEACEFUL ASSEMBLY" OPPOSING

  RACIAL DISCRIMINATION IN EMPLOYMENT, BUT SEC. 245(A)(1) PROVIDES

  THAT SEC. 245 SHALL NOT BE CONSTRUED AS INDICATING CONGRESS'

  INTENT TO PREVENT ANY STATE FROM EXERCISING JURISDICTION OVER ANY

  OFFENSE OVER WHICH IT WOULD HAVE JURISDICTION IN THE ABSENCE OF

  SEC. 245.  THE DISTRICT COURT DENIED REMOVAL, AND THE COURT OF

  APPEALS AFFIRMED, HOKDING THAT SEC. 245 "CONFERS NO RIGHTS

  WHATSOEVER" AND THAT A FEDERAL STATUTE MUST "PROVIDE" FOR THE

  EQUAL RIGHTS OF CITIZENS BEFORE IT CAN BE INVOKED AS A BASIS FOR

  REMOVAL OF PROSECUTIONS UNDER SEC. 1443(1).  HELD:  REMOVAL UNDER

  SEC. 1443(1) WAS NOT WARRANTED BASED SOLELY ON PETITIONERS'

  ALLEGATIONS THAT THE STATUTES UNDERLYING THE CHARGES WERE

  UNCONSTITUTIONAL, THAT THERE WAS NO BASIS IN FACT FOR THOSE

  CHARGES, OR THAT THEIR ARREST AND PROSECUTION OTHERWISE DENIED

  THEM THEIR CONSTITUTIONAL RIGHTS.  GEORGIA V. RACHEL, 384 U.S.

  780; CITY OF GREENWOOD V. PEACOCK, 384 U.S. 808.  NOR DOES SEC.

  245 FURNISH ADEQUATE BASIS FOR REMOVAL UNDER SEC. 1443(1).  PP.

  222 - 227. 

     (A) THE MISSISSIPPI COURTS UNDOUBTEDLY HAVE JURISDICTION OVER

  CONSPIRACY AND BOYCOTT CASES BROUGHT UNDER STATE LAW, AND SEC.

  245 (A)(1) APPEARS TO DISAVOW ANY INTENT TO INTERRUPT, SUCH STATE

  PROSECUTIONS, A CONCLUSION THAT IS ALSO IMPLICIT IN SEC. 245'S

  OPERATIVE PROVISIONS, SINCE SEC. 245(B) ON ITS FACE FOCUSES ON

  THE USE OF FORCE, AND ITS LEGISLATIVE HISTORY CONFIRMS THAT ITS

  CENTRAL PURPOSE WAS TO PREVENT AND PUNISH VIOLENT INTERFERENCES

  WITH THE EXERCISE OF SPECIFIED RIGHTS AND THAT IT WAS NOT AIMED

  AT INTERRUPTING OR FRUSTRATING THE OTHERWISE ORDERLY PROCESSES OF

  STATE LAW.  PP. 223 - 227. 

     (B) THUS VIEWED IN THE CONTEXT OF SEC. 245'S BEING DIRECTED AT

  CRIMES OF RACIAL VIOLENCE, A STATE PROSECUTION, PROCEEDING AS IT

  DOES IN A COURT OF LAW, CANNOT BE CHARACTERIZED AS AN APPLICATION

  OF "FORCE OR THREAT OF FORCE" WITHIN THE MEANING OF SEC. 245 AND

  WHATEVER "RIGHTS" THAT SECTION MAY CONFER, NONE OF THEM IS DENIED

  BY A STATE CRIMINAL PROSECUTION FOR CONSPIRACY OR BOYCOTT, THERE

  BEING NO "FEDERAL STATUTORY RIGHT THAT NO STATE SHOULD EVEN

  ATTEMPT TO PROSECUTE (PETITIONERS) FOR THEIR CONDUCT," PEACOCK,

SUPRA, AT 826.  P. 227. 

     (C) THE ABSENCE OF ANY EVIDENCE OR LEGISLATIVE HISTORY

  INDICATING THAT CONGRESS INTENDED TO ACCOMPLISH IN 18 U.S.C. SEC.

  245 WHAT IT HAS FAILED OR REFUSED TO DO DIRECTLY THROUGH

  AMENDMENT TO 28 U.S.C. SEC. 1443 ALSO NECESSITATES REJECTION OF

  THE RIGHT OF REMOVAL IN THIS CASE, IN ADDITION TO WHICH THERE ARE

OTHER AVENUES OF RELIEF OPEN TO PETITIONERS FOR VINDICATION OF

  THEIR FEDERAL RIGHTS THAT MAY HAVE BEEN OR WILL BE VIOLATED.  PP.

  227 - 228. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

  C.J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 

  MARSHALL J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, J.,

JOINED, POST, P. 229.  DOUGLAS, J., TOOK NO PART IN THE

CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE APPLICATION OF 28 U.S.C. SEC. 1443 (1),
PERMITTING DEFENDANTS IN STATE CASES TO REMOVE THE PROCEEDINGS TO THE
FEDERAL DISTRICT COURTS UNDER CERTAIN CONDITIONS, IN THE LIGHT OF TITLE
I OF THE CIVIL RIGHTS ACT OF 1968, SEC. 101(A), 82 STAT, 73, 18 U.S.C.
SEC. 245. 

        I 

DURING MARCH 1972, PETITIONERS, SIX NEGRO CITIZENS OF VICKSBURG,
MISSISSIPPI, ALONG WITH OTHER CITIZENS OF VICKSBURG, MADE VARIOUS
DEMANDS UPON CERTAIN MERCHANTS AND CITY OFFICIALS GENERALLY RELATING TO
THE NUMBER OF NEGROES EMPLOYED OR SERVING IN VARIOUS POSITIONS IN BOTH
LOCAL GOVERNMENT AND BUSINESS ENTERPRISES.  IN LATE MARCH, PETITIONERS
BEGAN PICKETING SOME BUSINESS ESTABLISHMENTS IN VICKSBURG AND URGING,
BY WORD OF MOUTH AND THROUGH LEAFLETS, THAT THE CITIZENS OF VICKSBURG
BOYCOTT THOSE ESTABLISHMENTS UNTIL SUCH TIME AS PETITIONERS' DEMANDS
WERE REALIZED.  /1/ ON MAY 2, MAY 13, MAY 14, AND MAY 21 OF THAT YEAR,
PETITIONERS, ALONG WITH 43 OTHER NEGROES, WERE ARRESTED /2/ ON THE
BASIS OF WARRANTS CHARGING, IN GENERAL TERMS, THEIR COMPLICITY IN A
CONSPIRACY UNLAWFULLY TO BRING ABOUT A BOYCOTT OF MERCHANTS AND
BUSINESSES.  /3/ AT LEAST SOME OF THESE ARRESTS TOOK PLACE AT A TIME
WHEN SOME OF THOSE ARRESTED WERE ENGAGED IN PICKETING IN PROTEST OF THE
RACIAL DISCRIMINATION ALLEGEDLY PRACTICED BY CERTAIN MERCHANTS OF
VICKSBURG.  FOLLOWING THE ARRESTS, WHICH WERE MADE BY VICKSBURG POLICE
OFFICERS, THOSE ARRESTED WERE TRANSPORTED TO THE CITY JAIL WHERE THEY
EACH REMAINED AFTER PROCESSING UNTIL THE POSTING OF BAIL.  THERE IS NO
INDICATION IN THE RECORD IN THIS CASE THAT THE ARRESTS AND SUBSEQUENT
DETENTIONS OF PETITIONERS OR THE OTHER 43 PERSONS SO ARRESTED AND
DETAINED INVOLVED THE APPLICATION OF ANY FORCE BY THE ARRESTING
OFFICERS BEYOND THE VERBAL DIRECTIONS ISSUED BY THOSE OFFICERS AND THE
COCERIVE CUSTODY NORMALLY INCIDENT TO ARREST, PROCESSING, AND
DETENTION. 

ON MAY 25, 1972, THOSE ARRESTED FILED A PETITION IN THE FEDERAL
DISTRICT COURT IN COMPLIANCE WITH THE PROCEDURES ESTABLISHED BY 28
U.S.C. SEC. 1446 SEEKING TRANSFER OF THE TRIAL OF CHARGES AGAINST THEM
TO THE DISTRICT COURT PURSUANT TO 28 U.S.C. SEC. 1443, WHICH READS, IN
PERTINENT PART, /4/ AS FOLLOWS: 

    " ANY OF THE FOLLOWING CIVIL ACTIONS OR CRIMINAL PROSECUTIONS,

  COMMENCED IN A STATE COURT MAY BE REMOVED BY THE DEFENDANT TO THE

  DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT AND DIVISION

  EMBRACING THE PLACE WHEREIN IT IS PENDING: 

     "(1) AGAINST ANY PERSON WHO IS DENIED OR CANNOT ENFORCE IN THE

  COURTS OF SUCH STATE A RIGHT UNDER ANY LAW PROVIDING FOR THE

  EQUAL CIVIL RIGHTS OF CITIZENS OF THE UNITED STATES, OR OF ALL

  PERSONS WITHIN THE JURISDICTION THEREOF . . . ." 

IN THEIR REMOVAL PETITION, IT WAS ALLEGED, INTER ALIA, THAT THOSE
ARRESTED WERE BEING PROSECUTED UNDER SEVERAL STATE CONSPIRACY STATUTES
/5/ WHICH WERE " ON THEIR FACE AND AS APPLIED REPUGNANT TO THE
CONSTITUTION . . . ," AND THAT: 

     " THE CHARGES AGAINST PETITIONERS, THEIR ARREST, AND
SUBSEQUENT

  PROSECUTION ON THOSE CHARGES HAVE NO BASIS IN FACT AND HAVE BEEN

  EFFECTUATED SOLELY AND EXCLUSIVELY FOR THE PURPOSE AND EFFECT OF

  DEPRIVING PETITIONERS OF THEIR FEDERALLY PROTECTED RIGHTS,

  INCLUDING BY FORCE OR THREAT OF FORCE, PUNISHING, INJURING,

  INTIMIDATING, AND INTERFERRING (SIC), OR ATTEMPTING TO PUNISH,

INJURE, INTIMIDATE, . . . AND INTERFERE WITH PETITIONERS, AND THE

  CLASS OF PERSONS PARTICIPATING IN THE . . . BOYCOTT AND

  DEMONSTRATIONS, FOR THE EXERCISE OF THEIR RIGHTS PEACEFULLY TO

  PROTEST DISCRIMINATION AND TO CONDUCT AND PUBLICIZE A BOYCOTT

  WHICH SEEKS TO REMEDY THE DENIAL OF EQUAL CIVIL RIGHTS . . .

  WHICH ACTIVITIES ARE PROTECTED BY 18 U.S.C. 245." 

ON DECEMBER 29, 1972, AFTER AN EVIDENTIARY HEARING WAS HELD BY THE
DISTRICT COURT IN WHICH TESTIMONY WAS PRESENTED BOTH BY PETITIONERS AND
THE VICKSBURG CHIEF OF POLICE, WHO WAS ONE OF THE NAMED RESPONDENTS TO
THE REMOVAL PETITION, THE DISTRICT COURT REMANDED THE PROSECUTIONS TO
THE STATE COURTS.  THE COURT OF APPEALS AFFIRMED, /6/ REASONING THAT
SEC. 245, AS A CRIMINAL STATUTE, "CONFERS NO RIGHTS WHATSOEVER . . .,"
488 F.2D 284, 287 (CA5 1974), AND THAT, UNDER THIS COURT'S DECISIONS IN
GEORGIA V. RACHEL, 384 U.S. 780 (1966), AND CITY OF GREENWOOD V.
PEACOCK, 384 U.S. 808 (1966), A FEDERAL STATUTE MUST "PROVIDE" FOR THE
EQUAL RIGHTS OF CITIZENS BEFORE IT CAN BE INVOKED AS A BASIS FOR
REMOVAL OF PROSECUTIONS UNDER SEC. 1443(1).  REHEARING AND REHEARING EN
BANC, FED. RULE APP. PROC. 35, WERE DENIED, FIVE CIRCUIT JUDGES
DISSENTING IN AN OPINION.  /7/ 491 F.2D 94 (CA5 1974).  WE GRANTED
CERTIORARI, 419 U.S. 893 (1974), AND, FOR REASONS STATED BELOW, AFFIRM
THE JUDGMENT OF THE COURT OF APPEALS. 

OUR MOST RECENT CASES CONSTRUING SEC. 1443(1) ARE THE COMPANION
CASES OF GEORGIA V. RACHEL, SUPRA, AND CITY OF GREENWOOD V. PEACOCK,
SUPRA.  THOSE CASES ESTABLISHED THAT A REMOVAL PETITION UNDER 28 U.S.C.
SEC. 1443(1) MUST SATISFY A TWO-PRONGED TEST.  FIRST, IT MUST APPEAR
THAT THE RIGHT ALLEGEDLY DENIED THE REMOVAL PETITIONER ARISES UNDER A
FEDERAL LAW "PROVIDING FOR SPECIFIC CIVIL RIGHTS STATED IN TERMS OF
RACIAL EQUALITY."  GEORGIA V. RACHEL, 384 U.S., AT 792.  CLAIMS THAT
PROSECUTION AND CONVICTION WILL VIOLATE APPLICABILITY OR UNDER STATUTES
NOT PROTECTING AGAINST RACIAL DISCRIMINATION, WILL NOT SUFFICE.  THAT A
REMOVAL PETITIONER WILL BE DENIED DUE PROCESS OF LAW BECAUSE THE
CRIMINAL LAW UNDER WHICH HE IS BEING PROSECUTED IS ALLEGEDLY VAGUE OR
THAT THE PROSECUTION IS ASSERTEDLY A SHAM, CORRUPT, OR WITHOUT
EVIDENTIARY BASIS DOES NOT, STANDING ALONE, SATISFY THE REQUIREMENTS OF
SEC. 1443(1).  CITY OF GREENWOOD V. PEACOCK, 384 U.S., AT 825. 

SECOND, IT MUST APPEAR, IN ACCORDANCE WITH THE PROVISIONS OF SEC.
1443(1), THAT THE REMOVAL PETITIONER IS "DENIED OR CANNOT ENFORCE"  THE
SPECIFIED FEDERAL RIGHTS "IN THE COURTS OF (THE) STATE."  THIS
PROVISION NORMALLY REQUIRES THAT THE "DENIAL BE MAINIFEST IN A FORMAL
EXPRESSION OF STATE LAW," GEORGIA V. RACHEL, SUPRA, AT 803, SUCH AS A
STATE LEGISLATIVE OR CONSTITUTIONAL PROVISION, "'RATHER THAN A DENIAL
FIRST MADE MANIFEST AT THE TRIAL OF THE CASE.'"  ID., AT 799.  EXCEPT
IN THE UNUSUAL CASE WHERE "AN EQUIVALENT BASIS COULD BE SHOWN FOR AN
EQUALLY FIRM PREDICTION THAT THE DEFENDANT WOULD BE 'DENIED OR CANNOT
ENFORCE' THE SPECIFIED FEDERAL RIGHTS IN THE STATE COURT," ID., AT 804,
IT WAS TO BE EXPECTED THAT THE PROTECTION OF FEDERAL CONSTITUTIONAL OR
STATUTORY RIGHTS COULD BE EFFECTED IN THE PENDING STATE PROCEEDINGS,
CIVIL OR CRIMINAL.  UNDER SEC. 1443(1), 

"THE VINDICATION OF THE DEFENDANT'S FEDERAL RIGHTS IS LEFT TO THE
STATE COURTS EXCEPT IN THE RARE SITUATIONS WHERE IT CAN BE CLEARLY
PREDICTED BY REASON OF THE OPERATION OF A PERVASIVE ADN EXPLICIT STATE
OR FEDERAL LAW THAT THOSE RIGHTS WILL INEVITABLY BE DENIED BY THE VERY
ACT OF BRINGING THE DEFENDANT TO TRIAL IN THE STATE COURT."  CITY OF
GREENWOOD V. PEACOCK, SUPRA, AT 828. 

IN RACHEL, THE ALLEGATIONS OF THE PETITION FOR REMOVAL WHERE HELD TO
SATISFY BOTH BRANCHES OF THE RULE.  THE FEDERAL RIGHT CLAIMED AROSE
UNDER SEC. 201(A) AND 203(C) OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C.
SEC. 2000AA) AND 2000A-2(C).  SECTION 201 FORBIDS REFUSALS OR SERVICE
IN, OR EXCLUSIONS FROM, PUBLIC ACCOMODATIONS ON ACCOUNT OF RACE OR
COLOR; AND SEC. 203(C) PROHIBITS ANY "ATTEMPT TO PUNISH ANY PERSON FOR
EXERCISING OR ATTEMPTING TO EXERCISE ANY RIGHT OR PRIVILEGE SECURED BY
PROSECUTIONS SOUGHT TO BE REMOVED FROM STATE COURT WERE BROUGHT AND
WOULD BE TRIED "SOLELY AS THE RESULT OF PEACEFUL ATTEMPTS TO OBTAIN
SERVICE AT PLACES OF PUBLIC ACCOMMODATION."  384 U.S., AT 739.  /8/ WE
CONCLUDED THAT IF THE ALLEGATIONS IN THE REMOVAL PETITION WERE TRUE,
THE DEFENDANTS BY BEING PROSECUTED UNDER A STATE CRIMINAL TRESPASS LAW
WOULD BE DENIED OR COULD NOT ENFORCE THEIR RIGHTS IN THE COURTS OF
GEORGIA, SINCE THE "BURDEN OF HAVING TO DEFEND THE PROSECUTIONS IS
ITSELF THE DENIAL OF A RIGHT EXPLICITLY CONFERRED BY THE CIVIL RIGHTS
ACT OF 1964."  ID., AT 805. 

IN PEACOCK, ON THE CONTRARY, THE STATE COURT DEFENDANTS PETITIONING
FOR REMOVAL WERE BEING PROSECUTED FOR OBSTRUCTING PUBLIC STREETS,
ASSAULT AND BATTERY, AND VARIOUS OTHER LOCAL CRIMES.  /9/  THE FEDERAL
RIGHTS ALLEGEDLY BEING DENIED WERE SAID TO ARISE UNDER THE CONSTITUTION
AS WELL AS UNDER 42 U.S.C. SEC. 1971 AND 1981, THE FORMER SECTION
GUARANTEEING THE RIGHT TO VOTE WITHOUT DISCRIMINATION ON THE GROUNDS OF
RACE OR COLOR AND FORBIDDING INTERFERENCE THEREWITH, AND THE LATTER
GUARANTEEING ALL PERSONS EQUAL ACCESS TO SPECIFIED RIGHTS ENJOYED BY
WHITE PERSONS.  /10/ THE COURT ASSUMED THAT THE CLAIMED STATUTORY
RIGHTS WERE WITHIN THOSE RIGHTS CONTEMPLATED BY SEC. 1443(1), BUT WENT
ON TO HOLD THAT THERE HAD BEEN NO SHOWING THAT PETITIONERS WOULD BE
DENIED OR COULD NOT ENFORCE THEIR RIGHTS IN TGHE STATE COURT.  THE
REMOVAL PETITIONS ALLEGED "(1) THAT THE DEFENDANTS WERE ARRESTED BY
STATE OFFICERS AND CHARGED WITH VARIOUS OFFENSES UNDER STATE LAW
BECAUSE THEY WERE NEGROES OR BECAUSE THEY WERE ENGAGED IN HELPING
NEGROES ASSERT THEIR RIGHTS UNDER FEDERAL EQUAL CIVIL RIGHTS LAWS, AND
THAT THEY ARE COMPLETELY INNOCENT OF THE CHARGES AGAINST THEM, OR (2)
THAT THE DEFENDANTS WILL BE UNABLE TO OBTAIN A FAIR TRIAL IN THE STATE
COURT."  384 U.S., AT 826.  THE COURT HELD, HOWEVER, THAT IT WAS NOT
ENOUGH TO SUPPORT REMOVAL TO ALLEGE THAT "FEDERAL EQUAL CIVIL RIGHTS
HAVE BEEN ILLEGALLY AND CORRUPTLY DENIED BY STATE ADMINISTRATIVE
OFFICIALS IN ADVANCE OF TRIAL, THAT THE CHARGES AGAINST THE DEFENDANT
ARE FALSE, OR THAT THE DEFENDANT IS UNABLE TO OBTAIN A FAIR TRIAL IN A
PARTICULAR STATE COURT."  ID., AT 827.  PETITIONERS COULD POINT TO NO
FEDERAL LAW CONFERRING ON THEM THE RIGHT TO ENGAGE IN THE SPECIFIC
CONDUCT WITH WHICH THEY WERE CHARGED; AND THERE WAS NO "FEDERAL
STATUTORY RIGHT THAT NO STATE SHOULD EVEN ATTEMPT TO PROSECUTE THEM FOR
THEIR CONDUCT."  ID., AT 826. 

        III 

WITH OUR PRIOR CASES IN MIND, IT IS APPARENT, WITHOUT FURTHER
DISCUSSION, THAT REMOVAL UNDER SEC. 1443(1) WAS NOT WARRANTED HERE
BASED SOLELY ON PETITIONERS' ALLEGATIONS THAT THE STATUTES UNDERLYING
THE CHARGES AGAINST THEM WERE UNCONSTITUTIONAL, THAT THERE WAS NO BASIS
IN FACT FOR THOSE CHARGES, OR THAT THEIR CONSTITUTIONAL RIGHTS.  WE ARE
ALSO CONVINCED FOR THE FOLLOWING REASONS THAT SEC. 245, /11/ ON WHICH
PETITIONERS PRINCIPALLY RELY, DOES NOT FURNISH ADEQUATE BASIS FOR
REMOVAL UNDER SEC. 1443(1) OF THESE STATE PROSECUTIONS TO THE FEDERAL
COURT. 

WHETHER OR NOT SEC. 245, A FEDERAL CRIMINAL STATUTE, PROVIDES FOR
"SPECIFIC CIBIL RIGHTS STATED IN TERMS OF RACIAL EQUALITY . . .,"
GEORGIA V. RACHEL, 384 U.S., AT 792, IT EVINCES NO INTENTION TO
INTERFERE IN ANY MANNER WITH STATE CRIMINAL PROSECUTIONS OF THOSE WHO
SEEK TO HAVE THEIR CASES REMOVED TO THE FEDERAL COURTS.  ON THE
CONTRARY, SEC. 245(A)(1) ITSELF EXPRESSLY PROVIDES: 

" NOTHING IN THIS SECTION SHALL BE CONSTRUED AS INDICATING AN INTENT
ON THE PART OF CONGRESS TO PREVENT ANY STATE . . . FROM EXERCISING
4URISDICTION OVER ANY OFFENSE OVER WHICH IT WOULD HAVE JURISDICTION IN
THE ABSENCE OF THIS SECTION . . . ."  /12/ THE MISSISSIPPI COURTS
UNDOUBTEDLY HAVE JURISDICTION OVER CONSPIRACY AND BOYCOTT CASES BROUGHT
UNDER STATE LAW; AND SEC. 245(A)(1) APPEARS TO DISAVOW ANY INTENT TO
INTERRUPT SUCH STATE PROSECUTIONS, A CONCLUSINO THAT IS ALSO IMPLICIT
IN THE OPERATIVE PROVISIONS OF THAT SECTION.  SECTION 245(B) MAKES IT A
CRIME FOR ANY PERSONS, BY "FORCE OR THREAT OF FORCE" TO INJURE,
INTIMIDATE, OR INTERFERE WITH ANY INDIVIDUAL ENGAGED IN SPECIFIED
ACTIVITIES.  THE PROVISION ON ITS FACE FOCUSES ON THE USE OF FORCE, AND
ITS LEGISLATIVE HISTORY CONFIRMS THAT ITS CENTRAL PURPOSE WAS TO
PREVENT AND PUNISH VIOLENT INTERFERENCES WITH THE EXERCISE OF SPECIFIED
RIGHTS AND THAT IT WAS NOT AIMED AT INTERRUPTING OR FRUSTRATING THE
OTHERWISE ORDERLY PROCESSES OF STATE LAW. 

THE ANTIDOTE PRESCRIBED BY CONGRESS TO DETER AND PUNISH THOSE WHO WOULD
FORCIBLY SUPPRESS THE FREE EXERCISE OF CIVIL RIGHTS ENUMERATED IN THAT
STATUTE.  THE BILL WHICH EVENTUALLY BECAME TITLE I, H. R. 2516, WAS
SUBSTANTIALLY IDENTICAL TO H. R. 14765, PASSED BY THE HOUSE AS TITLE V
OF THE CIVIL RIGHTS ACT OF 1966.  /13/ TITLE I WAS ENACTED AGAINST A
BACKGROUND OF RACIAL VIOLENCE DESCRIBED IN THE REPORT OF THE BILL THAT
WAS ADOPTED BY THE HOUSE: 

     " THE BRUTAL CRIMES COMMITTED IN RECENT YEARS AGAINST NEGROES

  EXERCISING FEDERAL RIGHTS AND AGAINST WHITE PERSONS WHO HAVE

  ENCOURAGED OR AIDED NEGROES SEEKING EQUALITY NEED NO RECITAL. 

  VIOLENCE AND TREATS OF VIOLENCE HAVE BEEN RESORTED TO IN ORDER TO

  PUNISH OR DISCOURAGE NEGROES FROM VOTING, FROM USING PLACES OF

PUBLIC ACCOMMODATION AND PUBLIC FACILITIES, FROM ATTENDING

  DESEGREGATED SCHOOLS, AND FROM ENGAGING IN OTHER ACTIVITIES

  PROTECTED BY FEDERAL LAW.  FEQUENTLY THE VICTIM OF THE CRIME HAS

  RECENTLY ENGAGED OR IS THEN ENGAGING IN THE EXERCISE OF A FEDERAL

  RIGHT.  IN OTHER CASES, THE VICTIM IS A CIVIL RIGHTS WORKER--

  WHITE OR NEGRO--WHO HAS ENCOURAGED OTHERS TO ASSERT THESE RIGHTS

  OR ENGAGED IN PEACEFUL ASSEMBLY OPPOSING THEIR DENIAL.  IN STILL

  OTHER CASES NEGROES, NOT KNOWN TO HAVE HAD ANYTHING TO DO WITH

  CIVIL RIGHTS ACTIVITIES, HAVE BEEN KILLED OR ASSAULTED TO

  DISCOURAGE OTHER NEGROES FROM ASSERTING THEIR RIGHTS."  H. R.

 REP. NO. 473, 90TH CONG., 1ST SESS., 3 - 4 (1967).  /14/ 

THE SENATE REPORT LIKEWISE EXPLAINED TITLE I AS A MEASURE "TO MEET
THE PROBLEM OF VIOLENT INTERFERENCE, FOR RACIAL OR OTHER DISCRIMINATORY
REASONS, WITH A PERSON'S FREE EXERCISE OF CIVIL RIGHTS."  S. REP. NO.
721, 93TH CONG., 1ST SESS., 3 (1967).  THIS CONCERN WITH RACIALLY
MOTIVATED ACTS OF VIOLENCE PERVADED THE REPORT, SEE ID., AT 4, 5, 6, 7,
8, AND 9.  IN THE DEBATE ON THE FLOOR OF THE SENATE, FREQUENT
REFERENCES TO THE BILL'S BEING DIRECTED AT CRIMES OF RACIAL VIOLENCE
WERE MADE, /15/ THE FOLLOWING BEING PARTICULARLY RELEVANT HERE: 

     " THIS NEW LAW WOULD PROVIDE THAT WHEN A LAW ENFORCEMENT

  OFFICER TOTALLY ABANDONS HIS DUTY IN ORDER TO VIOLENTLY

  INTIMIDATE INDIVIDUALS SEEKING LAWFULLY TO EXERCISE CERTAIN

  ENUMERATED FEDERAL RIGHTS, HE WILL BE PUNISHED LIKE ANY OTHER

  CITIZEN. 

        * * * * * 

     ". . . SO LONG AS IT APPEARS THAT AN OFFICER REASONABLY

  BELIEVED HE WAS DOING HIS DUTY, THAT IS, THAT THE ARREST TOOK

  PLACE BECAUSE OF A PERCEIVED VIOLATION OF A THEN-VALID LAW, NO

  CASE OF KNOWING INTERFERENCE WITH CIVIL RIGHTS COULD BE MADE

  AGAINST HIM."  114 CONG. REC. 2268 (1968). 

VIEWED IN THIS CONTEXT, IT SEEMS QUITE EVIDENT THAT A STATE
PROSECUTION, PROCEEDING AS IT DOES IN A COURT OF LAW, CANNOT BE
CHARACTERIZED AS AN APPLICATION OF "FORCE OR THREAT OF FORCE" WHTHIN
THE MEANING OF SEC. 245.  THAT SECTION FURNISHES FEDERAL PROTECTION
AGAINST VIOLENCE IN CERTAIN CIRCUMSTANCES.  BUT WHATEVER "RIGHTS" IT
MAY CONFER, NONE OF THEM IS DENIED BY A STATE CRIMINAL PROSECUTION FOR
CONSPIRACY OR BOYCOTT.  HERE, AS IN PEACOCK, THERE IS NO "FEDERAL
STATUTORY RIGHT THAT NO STATE SHOULD EVEN ATTEMPT TO PROSECUTE THEM FOR
THEIR CONDUCT."  384 U.S., AT 826.  /16/

        IV 

WE THINK FURTHER OBSERVATIONS ARE IN ORDER.  WE STATED IN CITY OF
GREENWOOD V. PEACOCK: 

"(IF CHANGES ARE TO BE MADE IN THE LONG-SETTLED INTERPRETATION OF
THE PROVISIONS OF THIS CENTURY-OLD REMOVAL STATUTE, IT IS FOR CONGRESS
AND NOT FOR THIS COURT TO MAKE THEM.  FULLY AWARE OF THE ESTABLISHED
MEANING THE REMOVAL STATUTE HAD BEEN GIVEN BY A CONSISTENT SERIES OF
DECISIONS IN THIS COURT, CONGRESS IN 1964 DECLINED TO ACT ON PROPOSALS
TO AMEND THE LAW.  ALL THAT CONGRESS DID WAS TO MAKE REMAND ORDERS
APPEALABLE, AND THUS INVITE A CONTEMPORARY JUDICIAL CONSIDERATION OF
THE MEANING OF THE UNCHANGED PROVISIONS OF 28 U.S.C. SEC. 1443."  ID.,
AT 834 - 835.  WHEN WE DECIDED THAT CASE, THERE HAD BEEN INTRODUCED IN
THE CONGRESS NO FEWER THAN 11 BILLS WHICH, IF ENACTED, WOULD HAVE
ENLARGED IN ONE WAY OR ANOTHER THE RIGHT OF REMOVAL IN CIVIL RIGHTS
CASES.  ID., AT 833 N. 33.  NONE OF THOSE BILLS WAS REPORTED FROM THE
COGNIZANT COMMITTEE OF CONGRESS; NONE HAS BEEN REPORTED IN THE
INTERVENING YEARS; AND THE PARTIES HAVE INFORMED US OF NO COMPARABLE
BILL UNDER ACTIVE CONSIDERATION IN THE PRESENT CONGRESS.  THE ABSENCE
OF ANY EVIDENCE OR LEGISLATIVE HISTORY INDICATING THAT CONGRESS
INTENDED TO ACCOMPLISH IN SEC. 245 WHAT IT HAS FAILED OR REFUSED TO DO
DIRECTLY THROUGH AMENDMENT TO SEC. 1443 NECESSITATES OUR CONSIDERED
REJECTION OF THE RIGHT OF REMOVAL IN THIS CASE.  ALSO, AS WE NOTED IN
PEACOCK, THERE ARE VARIED AVENUES OF RELIEF OPEN TO THESE DEFENDANTS
FOR VINDICATION OF ANY OF THEIR FEDERAL RIGHTS THAT MAY HAVE BEEN OR
WILL BE VIOLATED, ID., AT 828 - 830; AND, INDEED, IT APPEARS FROM THE
RECORD IN THIS CASE THAT AT LEAST ONE SUCH AVENUE WAS PURSUED EARLY ON
BY THEM AND CONTINUES TO BE PURSUED.  /17/

AFFIRMED. 

/1/ WITH RESPECT TO THESE BUSINESS ESTABLISHMENTS, THE SPECIFIC
DEMANDS MADE BY THE PETITIONERS WERE THE 40% OF THEIR EMPLOYEES AND
MANAGERS SHOULD BE DRAWN FROM THE NEGRO COMMUNITY. 

/2/ ALL OF THE PETITIONERS WERE ARRESTED ON MAY 2, 1972; PETITIONERS
ALBERT JOHNSON, EDDIE MC BRIDE, CHARLES CHIPLIN, AND JAMES ODELL DIXON
WERE ARRESTED AGAIN ON EITHER MAY 13 OR 14, AND PETITIONER JOHNSON WAS
ARRESTED ONCE AGAIN ON MAY 21. 

/3/ THE WARRANTS WERE SUPPORTED BY THE SWORN AFFIDAVITS OF THE
VICKSBURG CHIEF OF POLICE AND CHARGED VARIOUS PERSONS AMONG THE TOTAL
OF 49 EVENTUALLY ARRESTED.  "WITH THE FELONIOUS INTENT ON THEIR PART,
AND EACH OF THEM TO COMMIT ACTS INJURIOUS TO TRADE OR COMMERCE AMONG
THE PUBLIC AND DID WILFULLY, UNLAWFULLY, AND FELONIOUSLY CONSPIRE,
COMBINE, CONFEDERATE AND AGREE AMONG THEMSELVES AND EACH OF THEM WITH
THE OTHER, AND DID ENTER INTO AN UNLAWFUL CONSPIRACY, PLAN AND DESIGN
AMONG THEMSELVES, AND EACH WITH THE OTHER, TO UNLAWFULLY AND
FELONIOUSLY BRING ABOUT A BOYCOTT OF MERCHANTS AND BUSINESSES AND
PURSUANT OF THE SAID UNLAWFUL CONSPIRACY DID THEN AND THERE PROMOTE,
ENCOURAGE AND ENFORCE ACTS INJURIOUS TO TRADE OR COMMERCE AMONG THE
PUBLIC." 

/4/ ALTHOUGH THE PETITIONERS PLEADED SEC. 1443 GENERALLY, THEY MADE
NO SUGGESTION THAT ANY AMONG THEM WAS IN THE POSITION TO CLAIM THE
PROTECTION OF SEC. 1443(2) AS CONSTRUED BY OUR DECISION IN CITY OF
GREENWOOD V. PEACOCK, 384 U.S. 808, 815 - 824 (1966), NOR DO THEY PRESS
SUCH A CLAIM IN THIS COURT. 

/5/ AT THE TIME THE REMOVAL PETITION WAS FILED, THE PRECISE STATUTES
UNDER WHICH PROSECUTIONS MIGHT EVENTUALLY BE BROUGHT WERE APPARENTLY
UNKNOWN TO PETITIONERS AND THE OTHER PERSONS ARRESTED.  IN THEIR
AMENDED PETITION FILED IN THE DISTRICT COURT, PETITIONERS CLAIMED THAT
THEY WERE TO BE PROSECUTED UNDER "(CONSPIRACY STATUTES 2056 AND ALL
OTHER CONSPIRACY STATUTES AS WELL AS 2384.5.  . . ."  THE REFERENCE TO
"2056" IS AN APPARENT REFERENCE TO SEC. 2384.5 OF THE 1942 CODE, NOW
RECODIFIED AS MISS.  CODE ANN. SEC. 97 - 23 - 83 (1972). 

/6/ AFTER FILING A NOTICE OF APPEAL, PETITIONERS APPLIED TO THE TO
THE DISTRICT COURT FOR A STAY OF ITS MANDATE REMANDING THE PROSECUTIONS
TO THE STATE COURTS, WHICH STAY WAS DENIED.  THE RECORD DOES NOT
INDICATE THAT STAY WAS SOUGHT AT THAT POINT FROM THE COURT OF APPEALS,
THE PROSECUTORIAL PROCESS PROCEEDING IN ITS NORMAL FASHION UNTIL MARCH
1973, WHEN THE GRAND JURY HAVING CONGNIZANCE OVER THE CHARGES "NO
BILLED" THE CHARGES AGAINST 43 OF THE PERSONESD HAVING BEEN PREVIOUSLY
ARRESTED.  APP. 140.  THE SAME GRAND JURY AT THE SAME TIME RETURNED
INDICTMENTS AGAINST THE SIX REMAINING PERSONS, PETITIONERS HERE; TWO OF
THE PETITIONERS WERE INDICTED FOR VIOLATION OF MISS.  CODE ANN. SEC. 97
- 23 - 85 (1972).  TR. OF ORAL ARG. 26. 

/7/ SHORTLY AFTER THE COURT OF APPEALS DENIED A PETITION FOR
REHEARING EN BANC, 491 F.2D 94 (CA5 1974), THAT COURT GRANTED AN
APPLICATION FOR A STAY OF ITS MANDATE TO PETITIONERS FOR PURPOSES OF
THEIR SEEKING A WRIT OF CERTIORARI IN THIS COURT, THAT STAY BEING
EFFECTIVE UNTIL DISPOSITION OF THE CASE BY THIS COURT.  SINCE THAT TIME
THE PROSECUTION OF PETITIONERS ON THE INDICTMENTS HANDED DOWN BY THE
GRAND JURY HAS NOT GONE FORWARD. 

/8/ WE HAD EARLIER CONSTRUED SEC. 203(C) AS PROHIBITING "PROSECUTION
OF ANY PERSON FOR SEEKING SERVICE IN A COVERED ESTABLISHEMENT, BECAUSE
OF HIS RACE OR COLOR."  HAMM V. CITY OF ROCK HILL, 379 U.S. 306, 311
(1964). 

/9/ " THE SEVERAL DEFENDANTS WERE CHARGED VARIOUSLY WITH ASSAULT,
INTERFERING WITH AN OFFICER IN THE PERFORMANCE OF HIS DUTY, DISTURBING
THE PEACE, CREATING A DISTURBANCE IN A PUBLIC PLACE, INCITING TO RIOT,
PARADING WITHOUT A PERMIT, ASSAULT AND BATTERY BY BITING A POLICE
OFFICER, CONTRIBUTING TO THE DELINQUENCY OF A MINOR, OPERATING A MOTOR
VEHICLE WITH IMPROPER LICENSE TAGS, RECKLESS DRIVING, AND PROFANITY AND
USE OF VULGAR LANGUAGE."  384 U.S., AT 813 N. 5. 

/10/ TITLE 42 U.S.C. SEC. 1971 READS, IN PERTINENT PART: 

"(A)(1) ALL CITIZENS OF THE UNITED STATES WHO ARE OTHERWISE
QUALIFIED BY LAW TO VOTE AT ANY ELECTION BY THE PEOPLE IN ANY STATE . .
. 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 . . . TO
THE CONTRARY NOTWITHSTANDING. 

        * * * * * 

"(B) NO PERSON, WHETHER ACTING UNDER COLOR OF LAW OR OTHERWISE,
SHALL INTIMIDATE, THEATEN, COERCE, OR ATTEMPT TO INTIMIDATE, THREATEN,
OR COERCE ANY OTHER PERSON FOR THE PURPOSE OF INTERFERING WITH THE
RIGHT OF SUCH OTHER PERSON TO VOTE OR TO VOTE AS HE MAY CHOOSE.  . .
."  WE TAKE NOTE OF THE SIMILARITY BETWEEN THE LANGUAGE OF SEC. 1971(B)
SET OUT ABOVE AND THE COMPARABLE LANGUAGE OF SEC. 245(B) AS SET OUT IN
N. 11, INFRA. 

TITLE 42 U.S.C. SEC. 1981 PROVIDES: 

" ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES SHALL
HAVE THE SAME RIGHT IN EVERY STATE AND TERRITORY TO MAKE AND ENFORCE
CONTRACTS, TO SUE, BE PARTIES, GIVE EVIDENCE, AND TO THE FULL AND EQUAL
BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE SECURITY OF PERSONS AND
PROPERTY AS IN ENJOYED BY WHITE CITIZENS, AND SHALL BE SUBJECT TO LIKE
PUNISHMENT, PAINS, PENALTIES, THXES, LICENSES, AND EXACTIONS OF EVERY
KIND, AND TO NOT OTHER." 

/11/ TITLE 18 U.S.C. SEC. 245, IN RELEVANT PART, PROVIDES: 

"(B) WHOEVER, WHETHER OR NOT ACTING UNDER COLOR OF LAW, BY FORCE OR
THREAT OF FORCE WILLFULLY INJURES, INTIMIDATES OR INTERFERES WITH, OR
ATTEMPTS TO INJURE, INTIMIDATE OR INTERFERE WITH--,

        * * * * * 

"(2) ANY PERSON BECAUSE OF HIS RACE, COLOR, RELIGION OR NATIONAL
ORIGIN AND BECAUSE HE IS OR HAS BEEN--,

        * * * * * 

"(C) APPLYING FOR OR ENJOYING EMPLOYMENT, OR ANY PERQUISITE THEREOF,
BY ANY PRIVATE EMPLOYER . . .

        * * * * * 

"(4) ANY PERSON BECAUSE HE IS OR HAS BEEN, OR IN ORDER TO INTIMIDATE
SUCH PERSON OR ANY OTHER PERSON OR ANY CLASS OF PERSON FROM--, 

"(A) PARTICIPATING, WITHOUT DISCRIMINATION ON ACCOUNT OF RACE,
COLOR, RELIGION OR NATIONAL ORIGIN, IN ANY OF THE BENEFITS OR
ACTIVITIES DESCRIBED IN (SUBPARAGRAPH (2)(C)); OR 

"(B) AFFORDING ANOTHER PERSON OR CLASS OF PERSONS OPPORTUNITY OR
PROTECTION TO SO PARTICIPATE; OR 

"(5) ANY CITIZEN BECAUSE HE IS OR HAS BEEN, OR IN ORDER TO
INTIMIDATE SUCH CITIZEN OR ANY OTHER CITIZEN FROM LAWFULLY AIDING OR
ENCOURAGING OTHER PERSONS TO PARTICIPATE, WITHOUT DISCRIMINATION ON
ACCOUNT OF RACE, COLOR, RELIGION OR NATIONAL ORIGIN, IN ANY OF THE
BENEFITS OR ACTIVITIES DESCRIBED IN (SUBPARAGRAPH 2(C)), OR
PARTICIPATING LAWFULLY IN SPEECH OR PEACEFUL ASSEMBLY OPPOSING ANY
DENIAL OF THE OPPORTUNITY TO SO PARTICIPATE--, "SHALL BE FINED . . .
."  (EMPHASIS ADDED.)  THIS TRUNCATED QUOTATION OF SEC. 245 MERELY
FOCUSES ON THAT ACTIVITY, ENUMERATED IN SUBPARAGRAPH (2)(C), WHICH
WOULD APPEAR TO BE MOST CLOSELY CONNECTED TO BOTH THE ACTIVITY IN WHICH
SOME DEFENDANTS WERE ENGAGED WHEN ACTUALLY ARRESTED AND TO WHICH THE
STATE CHARGES MOST CLOSELY RELATE.  WE RECOGNIZE THAT THE DEFENDANTS'
PICKETING DURING THE SEVERAL MONTHS RELEVANT EXPRESSED THEIR
DISSATISFACTION WITH WHAT THEY CONTENDED TO BE RACIAL DISCRIMINATION IN
AREAS OTHER THAN PRIVATE EMPLOYMENT. 

/12/ SECTION 245(A)(1) GOES ON TO NEGATIVE ANY INTENT BY CONGRESS TO
FORECLOSE STATE PROSECUTION OF THE ACTS FORBIDDEN BY THAT SECTION:
"NOR SHALL ANYTHING IN THIS SECTION BE CONSTRUED AS DEPRIVING STATE AND
LOCAL LAW ENFORCEMENT AUTHORITIES OF RESPONSIBILITY FOR PROSECUTING
ACTS THAT MEY BE VIOLATIONS OF THIS SECTION AND THAT ARE VIOLATIONS OF
STATE AND LOCAL LAW." 

/13/ THE PROPOSED CIVIL RIGHTS ACT OF 1966, WHILE IT PASSED THE
HOUSE, DID NOT PASS THE SENATE. 

/14/ THE REPORT ADOPTED BY THE HOUSE IN 1967 STATED:  " THE BILL IS
INTENDED TO STRENGTHEN THE GOVERNMENT'S CAPABILITY TO MEET THE PROBLEM
OF CIVIL RIGHTS VIOLENCE."  H. R. REP. NO. 473, 90TH CONG., 1ST SESS.,
3 (1967).  THE BULK OF THE REPORT SIMPLY ADOPTED BY REFERENCE CERTAIN
LANGUAGE THAT HAD APPEARED IN THE " ADDITIONAL VIEWS" OF CHAIRMAN
CELLER OF THE HOUSE COMMITTEE ON THE JUDICIARY THAT HAD BEEN APPENDED
TO THE HOUSE REPORT OF THE CIVIL RIGHTS ACT OF 1966, H. R. REP. NO.
1678, 89TH CONG., 2D SESS., PT. 2 (1966).  THE LANGUAGE QUOTED IN THE
TEXT IS TAKEN FROM THOSE VIEWS OF CHAIRMAN CELLER AS EXPRESSED IN THE
EARLIER HOUSE REPORT AND AS ADOPTED BY THE HOUSE IN THE SUBSEQUENT
CONGRESS.  CHAIRMAN CELLER MADE ABUNDANTLY CLEAR IN THOSE VIEWS THAT
THE BILL THAT BECAME SEC. 245 "IS DESIGNED TO MEET THE PROBLEM OF
PRESENT-DAY RACIAL VIOLENCE . . . ," H. R. REP. NO. 473, SUPRA, AT 5,
AND HE REITERATED THIS VIEW OF THE BILL WHEN IT ARRIVED ON THE HOUSE
FLOOR FOR CONSIDERATION AFTER FINALLY PASSING THE SENATE IN 1967:
"(THE SENATE VERSION OF THE BILL) REENACTS THE BILL THAT WE PASSED,
GIVING PROTECTION TO CIVIL RIGHTS WORKERS WHO MIGHT BE ENDEAVORING TO
EXPRESS THEIR BELIEFS IN VARIOUS PARTS OF THE COUNTRY, AND THE
PROVISIONS THEREIN WOULD PROTECT THEM AGAINST VIOLENCE."  114 CONG.
REC. 6490 (1968).  SEE ID., AT 9559. 

/15/ SEE 114 CONG. REC. 318 - 320, 333, 335, 399, 535, 538, 913, 928,
1391, 1392 (1968).  A DEPARTMENT OF JUSTICE WITNESS TESTIFYING BEFORE A
SENATE SUBCOMMITTEE IN SUPPORT OF TITLE I, STATED THAT IT "WOULD AFFORD
THE FEDERAL GOVERNMENT AN EFFECTIVE MEANS OF DETERING AND PUNISHING
FORCIBLE INTERFERENCE WITH THE EXERCISE OF FEDERAL RIGHTS,"  AND THAT
"(THE MERE FACT THAT A POLICEMAN WHO IS PERFORMING HIS DUTY IN GOOD
FAITH USES FORCE DOES NOT BRING HIM UNDER THE ACT AT ALL."  HEARINGS ON
THE PROPOSED CIVIL RIGHTS ACT OF 1967, BEFORE THE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE JUDICARY, 90TH
CONG., 1ST SESS., 82, 355 (1967).  THOSE HEARINGS, LIKE THE SENATE
REPORT AND THE FLOOR DEBABE IN THE SENATE, ARE REPLETE WITH NUMEROUS
REFERENCES TO THE USE OF VIOLENCE TO DETER THE EXERCISE OF FEDERAL
RIGHTS.  SEE ID., AT 61, 81, 210 - 212, 222, 312, 322, 325, 349. 

/16/ THE THREE COURTS OF APPEALS FACED WITH THE ISSUE NOW BEFORE US
ARE IN ACCORD WITH OUE DECISION.  NEW YORK V. HORELICK, 424 F.2D 697,
703 (CA 2), CERT. DENIED, 398 U.S. 939 (1970); HILL V. PENNSYLVANIA,
439 F.2D 1016, 1022 (CA 3), CERT. DENIED, 404 U.S. 985 (1971)
(ALTERNATIVE HOLDING); WILLIAMS V. TRI-COUNTY COMMUNITY CENTER, 452
F.2D 221 223 (CA 5 1971) (QUO WARRANTO PROCEEDING).     /17/ BREIF FOR
PETITIONERS 16 N. 9:  " SIMULTANEOUSLY (WITH THE FILING OF THE REMOVAL
PETITION SUB JUDICE), THE PETITIONERS ALSO FILED A COMPLAINT PURSUANT
TO 42 U.S.C. SEC. 1983 SEEKING INJUNCTIVE RELIEF AGAINST THE ARRESTS
AND PROSECUTIONS IN A COMPANION ACTION, CONCERNED CITIZENS OF VICKSBURG
V. SILLS, CIVIL NO. 72 W-18(N) (S.D. MISS.  FILED MAY 24, 1972), BUT
THE DISTRICT COURT DENIED TEMPORARY INJUCTIVE RELIEF WHICH WOULD HAVE
HELD THE PROSECUTIONS IN STATUS QUO PENDING A FINAL HEARING ON THE
MERITS (ORDER OF MAY 26, 1972).  A FINAL HEARING IN THAT ACTION HAS NOT
YET BEEN HELD, AND IS NOT PART OF THIS APPEAL." 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OF DECISION OF
THIS CASE. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

I BELIEVE THE DISSENTERS IN CITY OF GREENWOOD V. PEACOCK, 384 U.S.
808 (1966), CORRECTLY CONSTRUED THE CIVIL RIGHTS REMOVAL STATUTE, 28
U.S.C. SEC. 1443.  SEE NEW YORK V. GALIMISON, 342 F,2D 255, 275 (CA 2)
(MARSHALL, J., DISSENTING), CERT. DENIED, 380 U.S. 977 (1965).  ON THAT
BROADER VIEW OF THE STATUTE, REMOVAL WOULD PLAINLY BE PROPER HERE, AND
IF THE FEDERAL DISTRICT COURT DETERMINED THAT THE STATE PROCEEDINGS
WERE BEING USED TO DENY FEDERALLY PROTECTED RIGHTS, IT WOULD BE
REQUIRED TO DISMISS THE PROSECUTION.  SEE CITY OF GREENWOOD V. PEACOCK,
SUPRA, AT 840 - 848 (DOUGLAS, J., DISSENTING).  EVEN UNDER PEACOCK AND
ITS COMPANION CASE, GEORGIA V. RACHEL, 384 U.S. 780 (1966), HOWEVER, I
THINK THAT REMOVAL SHOULD HAVE BEEN AVAILABLE ON THE PARTICULAR FACTS
OF THIS CASE. 

AS THE COURT TODAY OBSERVES, RACHEL AND PEACOCK IMPOSED SHARP
LIMITATIONS ON THE SCOPE OF THE REMOVAL STATUTE.  THE STATUTE WAS HELD
TO PERMIT REMOVAL ONLY IN THE RARE CASE IN WHICH (1) THE FEDERAL RIGHT
AT ISSUE STEMMED FROM A LAW PROVIDING EXPRESSLY FOR EQUAL CIVIL RIGHTS;
(2) THE CONDUCT WITH WHICH THE REMOVAL PETITIONERS WERE CHARGED WAS
ARGUABLY PROTECTED BY THE FEDERAL LAW IN QUESTION; AND (3) THE FEDERAL
LAW GRANTED THE FURTHER RIGHT NOT ONLY TO ENGAGE IN THE CONDUCT IN
QUESTION, BUT TO BE FREE FROM ARREST AND PROSECUTION BY STATE OFFICIALS
FOR THAT CONDUCT.  FOCUSING ON THE THIRD REQUIREMENT, THE COURT TODAY
HOLDS THAT TITLE I OF THE 1968 CIVIL RIGHTS ACT, 18 U.S.C. SEC. 245,
DOES NOT PROVIDE A RIGHT TO BE FREE FROM ARREST AND PROSECUTION FOR
ENGAGING IN SPECIFIC FEDERALLY PROTECTED CONDUCT.  IN MY VIEW, THE
THREE REQUIREMENTS FROM PEACOCK WERE SATISFIED TO THE EXTENT NECESSARY
TO CALL FOR A FULL HEARING ON THE REMOVAL PETITION, AND I WOULD
THEREFORE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND FOR
FURTHER PROCEEDINGS.  /1/

I 

THE COURT OF APPEALS BASED ITS RULING ON THE FIRST OF THE THREE
REQUIREMENTS, HOLDING THAT SEC. 245 WAS NOT A "LAW PROVIDING FOR . . .
EQUAL CIVIL RIGHTS."  THE COURT REASONED THAT THE STATUTE FAILED TO
MEET THIS REQUIREMENT BECAUSE IT DID NOT "PROVIDE" ANY SUBSTANTIVE
RIGHTS BUT MERELY SUPPLIED A CRIMINAL SANCTION FOR THE VIOLATION OF
RIGHTS THAT HAD BEEN ELSEWHERE CREATED.  THIS MISSES THE POINT.  /2/ 

EVEN OF SEC. 245 IS REGARDED SOLELY AS CREATING CRIMINAL PENALTIES
FOR INTERFERENCE WITH PREVIOUSLY ESTABLISHED CIVIL RIGHTS, IT CERTAINLY
"PROVIDES) FOR" THOSE RIGHTS BY FACILITATING THEIR EXERCISE.  CONGRESS
PLAINLY INTENDED SEC. 245 IN PART TO RENDER CERTAIN RIGHTS MEANINGFUL,
EVEN THOUGH THE RIGHTS THEMSELVES HAD IN SOME INSTANCES BEEN CREATED IN
PRIOR LEGISLATION.  SEE S. REP. NO. 721, 90TH CONG., 1ST SESS., 4 - 6
(1967); H. R. REP. NO. 473, 90TH CONG., 1ST SESS., 5 - 7 (1967).  IF
CONGRESS HAD PROVIDED PRIVATE LEGAL OR EQUITABLE REMEDIES FOR THE
VINDICATION OF PRE EXISTING RIGHTS, SUCH A STATUTE WOULD CERTAINLY BE
DEEMED ONE "PROVIDING FOR" EQUAL CIVIL RIGHTS.  THE FACT THAT CONGRESS
HAS INVOKED THE CRIMINAL SANCTION TO PROTECT AND ENFORCE THOSE RIGHTS
RATHER THAN RELYING ON PRIVATE REMEDIES SHOULD MAKE NO DIFFERENCE. 

IN ANY EVENT, SEC. 245 DOES MORE THAN ENFORCE PRE-EXISTING RIGHTS:
IN SEVERAL RESPECTS IT CREATES RIGHTS THAT HAD NO PREVIOUS STATUTORY
RECOGNITION.  FIRST, THE STATUTE PROTECTS NOT ONLY THOSE PARTICIPATING
IN THE EXERCISE OF EQUAL CIVIL RIGHTS, BUT ALSO THOSE "ENCOURAGING
OTHER PERSONS TO PARTICIPATE" AND THOSE "PARTICIPATING LAWFULLY IN
SPEECH OR PEACEFUL ASSEMBLY OPPOSING ANY DENIAL OF THE OPPORTUNITY TO
SO PARTICIPATE," SEC. 245(B)(5).  SEE S. REP. NO. 721, SUPRA, AT 4. 
SECOND, BECAUSE IT IS BASED ON SEC. 5 OF THE FOURTEENTH AMENDMENT
RATHER THAN THE COMMERCE CLAUSE, SEC. 245 GOES BEYOND THE SPECIFIC
PROTECTIONS OF CIVIL RIGHTS LAWS IN VARIOUS PARTICULARS.  AS THE HOUSE
REPORT NOTED: 

"(THE SCOPE OF THE ACTICITIES DESCRIBED IN SECTION (245(B)) IS NOT
LIMITED TO THE SCOPE OF THE 'RIGHTS' CREATED BY OTHER FEDERAL LAWS
OUTLAWING DISCRIMINATION WITH RESPECT TO THOSE ACTIVITIES. 
ACCORDINGLY, IN APPROPRIATE CASES, . . . THE BILL WOULD REACH FORCIBLE
INTERFERENCE WITH EMPLOYMENT, REGARDLESS OF THE SIZE AND REGARDLESS OF
THE PUBLIC OR PRIVATE CHARACTER OF THE EMPLOYER; WITH SERVICE IN ALL OF
THE DESCRIBED TYPES OF PLACES OF PUBLIC ACCOMMODATION, WHETHER OR NOT
THEY HAPPEN TO FALL WITHIN THE SCOPE OF THE 1964 CIVIL RIGHTS ACT; AND
WITH COMMON CARRIER TRANSPORTATION WHETHER INTERSTATE OR INTRA-STATE." 
H. R. REP. NO. 473, SUPRA, AT 5.  FINALLY, THE STATUTE GOES BEYOND
PROTECTING AGAINST RACIALLY MOTIVATED MISCONDUCT BY STATE OFFICIALS AND
THOSE ACTING IN CONCERT WITH THEM.  IT REACHES RACIALLY MOTIVATED
CONDUCT BY PRIVATE INDIVIDUALS AS WEEL, THUS EXTENDING BOTH A RIGHT
AGAINST, AND A REMEDY FOR, CERTAIN PRIVATE MISCONDUCT.  THE INCLUSION
OF PRIVATE INDIVIDUALS WITHIN THE REACH OF SEC. 245 WAS A TOPIC OF
INTENSE DISPUTE DURING THE CONGRESSIONAL DEBATES OVER THE STATUTE. 
BOTH THE ADVOCATES AND OPPONENTS OF THE STATUTE RECOGNIZED THAT SEC.
245 WOULD CRIMINALIZE A WHOLE NEW SPHERE OF CONDUCT AND THUS
SIGNIFICANTLY EXPAND THE SCOPE OF FEDERAL STATUTORY PROTECTION FOR
CIVIL RIGHTS.  SEE S. REP. NO. 721, SUPRA, AT 7 - 8, 21 - 26; 113 CONG.
REC. 22763 - 22764 (1967); 114 CONG. REC. 319, 389 - 391, 539 - 544
(1968).  IN VIEW OF THE STATUTE'S BROAD REMEDIAL PORPOSES AND EFFECTS,
ONLY ON THE MOST GRUDGING READING CAN IT BE SAID NOT TO "PROVIDE) FOR
EQUAL CIVIL RIGHTS." 

        II 

ALTHOUGH NEITHER THE COURT OF APPEALS NOR THIS COURT HAS DISCUSSED
THE SECOND REQUIREMENT FOR SEC. 1443 REMOVAL, I BELIEVE THAT UNDER
RACHEL AND PEACOCK A SUFFICIENT SHOWING HAS BEEN MADE TO REQUIRE
FURTHER PROCEEDINGS BELOW.  THE COURT IN PEACOCK ESTABLISHED THAT WHERE
THE STATE CRIMINAL CHARGE INCLUDES ALLEGATIONS OF CONDUCT CLEARLY
UNPROTECTED BY FEDERAL LAW, REMOVAL IS NOT AVAILABLE.  IN THAT CASE,
THE STATE CHARGES INCLUDED OBSTRUCTION OF THE STREETS, ASSAULT, AND
INTERFERENCE WITH A POLICE OFFICER--ALL FORMS OF CONDUCT NOT EVEN
ARGUABLY PROTECTED UNDER FEDERAL LAW.  384 U.S., AT 826 - 827.  /3/ 

IN RACHEL, BY CONTRAST, THE COURT OBSERVED THAT THE DEFENDANTS HAD
BEEN CHARGED ONLY WITH VIOLATING THE STATE CRIMINAL TRESPASS STATUTE,
WHICH REQUIRED THAT A PERSON LEAVE A PLACE OF BUSINESS WHEN REQUESTED
TO DO SO BY THE OWNER.  THE DEFENDANTS ALLEGED IN THEIR REMOVAL
PETITIONS THAT THEY HAD REMAINED ON THE PREMISES OF THE PRIVATELY OWNED
RESTAURANTS WHERE THEY WERE ARRESTED IN THE COURSE OF SEEKING SERVICE
TO WHICH THEY WERE ENTITLED BY THE 1964 CIVIL RIGHTS ACT.  THUS NONE OF
THE CONDUCT THAT THE DEFENDANTS WERE ALLEGEDLY ENGAGED IN FELL PLAINLY
OUTSIDE THE PROTECTION OF FEDERAL LAW, AS WAS THE CASE IN PEACOCK. 
ACCORDINGLY, THE DISTRICT COURT WAS INSTRUCTED TO HOLD A HEARING TO
DETERMINE WHETHER THE DEFENDANTS WERE ORDERED TO LEAVE THE RESTURANT
FACILITIES SOLELY FOR RACIAL REASONS, AND WHETHER THE CONDUCT WAS IN
FACT WITHIN THE PROTECTION OF FEDERAL LAW--IN THE CASE BY DETERMINING
WHETHER THE RESTAURANTS IN QUESTION WERE WITHIN THE COVERAGE OF THE
CIVIL RIGHTS ACT.  384 U.S., AT 805 AND N. 31. 

ON THIS POINT, THE INSTANT CASE IS CONTROLLED BY RACHEL RATHER THAN
PEACOCK.  THE ARREST AFFIDAVITS CHARGED MERELY THAT THE PETITIONERS HAD
CONSPIRED TO PROMOTE A BOYCOTT OF MERCHANTS BUSINESSMEN AND THAT THEY
HAD ENGAGED IN AND PROMOTED ACTS "INJURIOUS TO TRADE OR COMMERCE AMONG
THE PUBLIC."  APP.  3 - 17.  IN THEIR REMOVAL PAPERS, THE PETITIONERS
ALLEGED THAT THE CONDUCT UNDERLYING THEIR ARRESTS ON THESE CHARGES WAS
WHOLLY WITHIN THE PROTECTION OF FEDERAL LAW.  /4/  THERE IS NOTHING IN
THE ARREST AFFIDAVITS OR THE STATUTE UNDER WHICH THE PETITIONERS WERE
CHARGED THAT REBUTS THIS CLAIM.  THE LINE BETWEEN RACHEL AND PEACOCK IS
THAT BETWWEN "PROSECUTIONS IN WHICH THE CONDUCT NECESSARY TO CONSTITUTE
THE STATE OFFENSE IS SPECIFICALLY PROTECTED BY A FEDERAL EQUAL RIGHTS
STATUTE UNDER THE CIRCUMSTANCES ALLEGED BY THE PETITIONER, AND
PROSECUTIONS WHERE THE ONLY GROUNDS FOR REMOVAL ARE THAT THE CHARGE IS
FALSE AND MOTIVATED GY A DESIRE TO DISCOURAGE THE PETITIONER FROM
EXERCISING OR TO PENALIZE HIM FOR HAVING EXERCISED A FEDERAL RIGHT." 
NEW YORK V. DAVIS, 411 F.2D 750, 754 (CA 2), CERT. DENIED, 396 U.S. 856
(1969).  LIKE RACHEL, THIS CASE FALLS INTO THE FORMER CATEGORY. 
ACCORDINGLY, THE COURTS BELOW SHOULD DETERMINE WHETHER THE PETITIONERS'
CONDUCT WAS IN FACT PROTECTED.  IF IT WAS, THE PROSECUTIONS SHOULD BE
DISMISSED.  /5/

        III 

FINALLY, THE RACHEL-PEACOCK TEST REQUIRES THAT THE FEDERAL LAW
INVOKED BY THE PETITIONERS MUST DO MORE THAN MERELY PROVIDE A DEFENSE
TO CONVICTION:  IT MUST IMMUNIZE THEM FORM ARREST AND PROSECUTION FOR
THE CONDUCT IN QUESTION.  IN RACHEL, THE COURT HELD THAT THIS TEST WAS
MET, SINCE SEC. 203 OF THE 1964 CIVIL RIGHTS ACT PROVIDED:  " NO PERSON
SHALL . . . (C) PUNISH OR ATTEMPT TO PUNISH ANY PERSON FOR EXERCISING
OR ATTEMPTING TO EXERCISE ANY RIGHT OR PRIVILEGE SECURED BY SECTION 201
OR 202."  42 U.S.C. SEC. 2000A-2(C).  THE RIGHTS PROTECTED BY SEC. 201
INCLUDED THE RIGHT TO "FULL AND EQUAL ENJOYMENT OF THE . . .,
FACILITIES . . . OF ANY PLACE OF PUBLIC ACCOMMODATION . . . WITHOUT
DISCRIMINATION . . . ON THE GROUND OF RACE."  42 U.S.C. SEC. 200AA). 
VIEWING THIS LANGUAGE IN LIGHT OF A SUBSEQUENT CONSTRUCTION IN HAMM V.
CITY OF ROCK HILL, 379 U.S. 306, 311 (1964), THE COURT IN RACHEL
CONCLUDED THAT IF THE FACTS IN THE REMOVAL PETITION WERE FOUND TO BE
TRUE, THE DEFENDANTS WOULD NOT ONLY BE IMMUNE FROM CONVICTION UNDER THE
GEORGIA TRESPASS STATUTE, BUT THEY WOULD ALSO HAVE A RIGHT UNDER THE
CIVIL RIGHTS ACT OF 1964 (NOT EVEN TO BE BROUGHT TO TRIAL ON THESE
CHARGES IN THE GEORGIA COURTS."  384 U.S., AT 794. 

THE COURT TODAY DISTINGUSIHES THE LANGUAGE OF 18 U.S.C. SEC. 245
FROM THAT OF SEC. 203 OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. SEC.
2000A-2(C), HOLDING THAT THE FORMER DOES NOT GRANT THE SAME IMMUNITY
FROM PROSECUTION THAT WAS IMPLIED IN THE LATTER.  TO ME, THE LANGUAGE
OF THE TWO STATUTES IS NOT SUFFICIENTLY DIFFERENT TO SUPPORT SUCH A
DISTINCTION.  WHILE THE STATUTE IN RACHEL PROVIDED THAT NO PERSON
SHOULD "PUNISH OR ATTEMPT TO PUNISH" A PERSON ENGAGED IN CONDUCT
PROTECTED UNDER THE ACT, THE STATUTE AT ISSUE HERE PROVIDES SANCTIONS
AGAINST ANYONE WHO, "WHETHER OR NOT ACTING UNDER COLOR OF LAW, BY FORCE
OR TREAT OF FORCE WILLFULLY INJURES, INTIMIDATES OR INTERFERES WITH, OR
ATTEMPTS TO INJURE, INTIMIDATE OR INTERFERE WITH" ANY PERSON WHO IS
ENGAGED IN PROTECTED CIVIL RIGHTS ACTIVITY OR IS "LAWFULLY AIDING OR
ENCOURAGING OTHER PERSONS TO PARTICIPATE" IN VARIOUS PROTECTED
ACTIVITIES.  THE USE OF FORCE OR THE THREAT OF FORCE TO INTIMIDATE OR
INTERFERE WITH PERSONS ENGAGED IN PROTECTED ACTIVITY FAIRLY DESCRIBES
AN "ATTEMPT TO PUNISH" THE SAME PERSONS, AND IT WOULD SEEM PLAINLY TO
INCLUDE PRETEXTUAL ARRESTS SUCH AS ARE ALLEGED TO HAVE OCCURRED IN THIS
CASE.  /6/ 

BESIDES THE DIFFERENCE IN LANGUAGE BETWEEN SEC. 203(C) AND SEC. 245,
THE COURT POINTS TO TWO OTHER FACTORS THAT IT CONTENDS PROVIDE A
FURTHER BASIS FOR DENYING REMOVAL HERE.  I DO NOT FIND EITHER TO BE
DISPOSITIVE. 

FIRST, THE COURT RELIES ON SEC. 245(A)(1), IN WHICH CONGRESS
EMPHASIZED THAT SEC. 245 WAS NOT INTENDED TO PREVENT "ANY STATE . . .
FROM EXERCISING JURISDICTION OVER ANY OFFENSE OVER WHICH IT WOULD HAVE
JURISDICTION IN THE ABSENCE OF THIS SECTION . . . ."  THE COURT ARGUES
THAT THIS "NONPREEMPTION" PROVISION INDICATES THAT SEC. 245 "APPEARS TO
DISAVOW ANY INTENT TO INTERRUPT . . . STATE PROSECUTIONS (FOR OFFENSES
SUCH AS BOYCOTTING AND CONSPIRACY)."  ANTE, AT 224.  I CANNOT AGREE
THAT SEC. 245(A)(1) MEANS TO DO THAT MUCH.  THE LEGISLATIVE HISTORY OF
THIS SUBSECTION INDICATES THAT IT WAS INTENDED TO AVOID THE RISK THAT
SEC. 245 WOULD BE READ TO BAR OR INTERFERE WITH STATE PROSECUTIONS OF
THOSE WHO VIOLATED SEC. 245 AS WELL AS PARALLEL STATE LAWS.  THE FEAR
WAS THAT SEC. 245, BECAUSE OF ITS POTENTIAL BREADTH, MIGHT APPEAR TO
GIVE PRE-EMPTIVE AUTHORITY TO FEDERAL LAW OFFICERS IN PROSECUTING A
BROAD SPECTRUM OF OFFENSES THAT WERE TRADITIONALLY SUBJECT TO LOCAL
CRIMINAL JURISDICTION.  /7/ THERE IS NO INDICATION IN THE LEGISLATIVE
HISTORY THAT SEC. 245(A)(1) WAS INTENDED TO DEFEND REMOVAL OF STATE
PROSECUTIONS BY THOSE PROTECTED UNDER THE ACT, NOR IS THERE ANY
SUGGESTION THAT IT WAS MEANT TO REDUCE THE PROTECTION FOR THE
BENEFICIARIES OF SEC. 245 IN ANY OTHER WAY. 

SECOND, THE COURT RELIES HEAVILY ON THE MAIN PURPOSE OF SEC. 245:
TO PENALIZE VIOLENT INTERFERENCE WITH THE EXERCISE OF SPECIFIC RIGHTS. 
CERTAINLY, VIOLENT INTERFERENCE WITH THE EXERCISE OF CIVIL RIGHTS WAS A
PRIMARY TARGET OF THE STATUTE.  BUT CURBING PRIVATE VIOLENCE WAS NOT
THE DRAFTERS' SOLE AIM.  THE ACT WAS INTENDED TO REACH LAW ENFORCEMENT
OFFICERS AS WELL AS PRIVATE CITIZENS, AND THE PROCESS OF ARREST AND
PROSECUTION IN STATE COURTS IS PRECISELY THE MEANS BY WHICH STATE
OFFICIALS, ACTING UNDER COLOR OF STATE LAW, CAN MOST PLAUSIBLY EXERT
FORCE OR THE THREAT OF FORCE TO INTERFERE WITH FEDERALLY PROTECTED
RIGHTS.  SEE PERKINS V. MISSISSIPPI, 455 F.2D 7, 11, 39 - 41 (CA 5
1972) (BROWN, C.J., DISSENTING).     THE COURT IS CORRECT, OF COURSE,
IN NOTING THAT CONGRESS DID NOT EXPRESSLY INDICATE THAT SEC. 245 SHOULD
BE AVAILABLE AS A MEANS OF REMOVING PROSECUTIONS TO FEDERAL COURTS. 
BUT THE COURT IN RACHEL DID NOT REQUIRE ANY SHOWING THAT CONGRESS HAD
SPECIFICALLY INTENDED THE STATUTE IN ISSUE TO BE USED AS A VEHICLE FOR
REMOVAL.  ALL THAT WAS NECESSARY WAS THAT THE STATUTE PROTECT AGAINST
THE INSTITUTION OF CRIMINAL ACTIONS AGAINST THOSE ENGAGED IN PROTECTED
FEDERAL RIGHTS, AND IN MY VIEW THAT STANDARD IS MET HERE.  /8/

        IV 

IF THE FACTS OF THIS CASE ARE AS ALLEGED IN THE REMOVAL PETITION,
THEN THE PROTEST EFFORT FO THE PETITIONERS AND THEIR GROUP, ALTHOUGH
WELL WITHIN THE PROTECTION OF FEDERAL LAW, HAS BEEN MUFFLED, IF NOT
ALTOGETHER STILLED, BY DISCRIMINATORY AND CYNICAL MISUSE OF THE STATE
CRIMINAL PROCESS.  THE COURT MAKES REFERENCE TO THE POSSIBLITY OF
FEDERAL INJUNCTIVE RELIEF, WHICH WOULD BE AVAILABLE IN THIS CASE IF THE
PETITIONERS CAN SHOW THAT THE ARRESTS AND PROSECUTIONS WERE INSTITUTED
IN BAD FAITH OR FOR THE PURPOSE OF HARASSMENT.  SEE DOMBROWSKI V.
PFISTER, 380 U.S. 479, 482, 490 (1965); YOUNGER V. HARRIS, 401 U.S. 37,
47 - 50 (1971).  I ONLY HOPE THAT THE RECENT INSTANCES IN WHICH THIS
COURT HAS EMPHASIZED THE VALUES OF COMITY AND FEDERALISM IN RESTRICTING
THE ISSUANCE OF FEDERAL INJUNCTIONS AGAINST STATE CRIMINAL AND QUASI
CRIMINAL PROCEEDINGS WILL NOT MISLEAD THE DISTRICT COURTS INTO
FORGETTING THAT AT TIMES THESE VALUES MUST GIVE WAY TO THE NEED TO
PROTECT FEDERAL RIGHTS FROM BEING IRREMEDIABLY TRAMPLED.  THE
POSSIBILITY THAT THE PETITIONERS MIGHT BE VINDICATED IN STATE COURT
CRIMINAL ACTIONS OR THROUGH SUBSEQUENT HABEAS CORPUS RELIEF WILL DO
LITTLE TO RESTORE WHAT HAS BEEN LOST:  THE RIGHT TO ENGAGE IN
LEGITIMATE, IF UNPOPULAR, THE EXPENSE, AND THE IGNOMINY OF ARREST AND
PROSECUTION.  IF THE FEDERAL COURTS ABANDON PERSONS LIKE THE
PETITIONERS IN THIS CASE WITHOUT A FAIR HEARING ON THE MERITS OF THRIR
CLAIMS, THEN IN MY VIEW COMITY WILL HAVE BEEN BOUGHT AT TOO GREAT A
COST. 

I RESPECTFULLY DISSENT. 

/1/ ALTHOUGH THE DISTRICT COURT INITIALLY HELD A HEARING ON THE
REMOVAL PETITION AND MADE VARIOUS FACTUAL FINDINGS ADVERSE TO THE
PETITIONERS, THE COURT OF APPEALS DISPOSED OF THE CASE WITHOUT
REVIEWING THE FINDINGS OF THE DISTRICT COURT.  I WOULD THEREFORE REMAND
THE CASE TO THE COURT OF APPEALS TO REVIEW THE FINDINGS RELEVANT TO THE
AVAILABILITY OF REMOVAL AND TO ORDER FURTHER PROCEEDINGS IF NECESSARY. 

/2/ THE COURT OF APPEALS ACKNOWLEDGED THAT SEC. 245 MET THE
REQUIREMENT THAT THE STATUTE UNDER WHICH REMOVAL IS CLAIMED BE A LAW
DEALING WITH "SPECIFIC CIVIL RIGHTS STATED IN TERMS OF RACIAL
EQUALITY," GEORGIA V. RACHEL, 384 U.S. 780, 792 (1966).  SEE 488 F.2D
284, 286 (CA 5 1974).  THE STATUTE WAS PLAINLY ADDRESSED TO PROBLEMS
ASSOCIATED WITH THE EXERCISE AND ADVOCACY OF MINORITY RIGHTS.  LIKE THE
1964 CIVIL RIGHTS ACT, AND UNLIKE THE MORE GENERAL CONSTITUTIONAL AND
STATUTORY PROVISIONS THAT WERE REJECTED AS BASES FOR REMOVAL IN RACHEL
AND PEACOCK, SEC. 245(B)(2) REFERS THROUGHOUT TO CONDUCT PREMISSED ON
RACIAL DISCRIMINATION. 

/3/ THE COURT REJECTED THE ARGUMENT MADE IN DISSENT THAT IT WAS THE
ALLEGATIONS IN THE REMOVAL PETITION THAT SHOULD BE LOOKED TO IN
DETERMINING WHETHER THE CONDUCT WAS ARGUABLY PROTECTED BY FEDERAL LAW,
NOT THE CHARGES FILED IN THE STATE PROCEEDING.  AS HAS BEEN SUGGESTED
ELSEWHERE, RELYING ON THE CHARGES TO DETERMINE WHETHER THE CONDUCT IS
PROTECTED WOULD IMMUNIZE FROM REMOVAL ANY CASE IN WHICH THE STATE
CHARGES INCLUDED ALLEGATIONS OF CONDUCT PLAINLY OUTSIDE THE SCOPE OF
FEDERAL PROTECTION.  SEE H. HART & H. WECHSLER, THE FEDERAL COURTS AND
THE FEDERAL SYSTEM 1228 (2D ED. 1973); PERKINS V. MISSISSIPPI, 455 F.2D
7, 11, 31 - 33 (CA 1972) (BROWN, C.J., DISSENTING); COMMENT, CIVIL
RIGHTS REMOVAL AFTER RACHEL AND PEACOCK:  A LIMITED FEDERAL REMEDY, 121
U.PA. L. REV. 351, 368 (1972). 

/4/ SPECIFICALLY, THE PETITIONERS ALLEGED THAT IN ORDER TO PROTEST
VARIOUS FORMS OF PRIVATE AND PUBLIC RACIAL DISCRIMINATION THEY "BEGAN
TO PEACEFULLY AND LAWFULLY PICKET THE BUSINESS ESTABLISHMENT OF
(OFFENDING) MERCHANTS IN VICKSBURG, MISSISSIPPI, AND BEGAN TO URGE THE
CITIZENS OF VICKSBURG TO BOYCOTT THE BUSINESS ESTABLISHMENTS.  ALL OF
THIS PICKETING BY THE PETITIONERS AND OTHER MEMBERS OF THEIR CLASS WAS
DONE IN A LAWFUL AND PEACEFUL MANNER AND WITHOUT INFRINGING UPON THE
RIGHTS OF ANY OTHER CITIZEN OF VICKSBURG . . . ."  APP.  22. 

/5/ THE RESPONDENTS CONTEND IN THEIR BRIEF THAT THE PETITIONERS WERE
ARRESTED FOR ACTS RANGING FROM ENGAGING IN A SECONDARY BOYCOTT TO
PHYSICALLY INTERFERING WITH AND INTIMIDATING A CUSTOMER WHO WAS TRADING
WITH A WHITE MERCHANT.  THE PETITIONERS RESPOND THAT BOTH THE ARREST
AFFIDAVITS AND THE TESTIMONY AT THE REMAND HEARING BEFORE THE DISTRICT
COURT WERE TO THE EFFECT THAT THEY WERE ALL ARRESTED PURSUANT TO THE
GENERAL STATE CONSPIRACY STATUTE, AND SPECIFICALLY FOR ENTERING INTO "A
CONSPIRACY HARMFUL TO TRADE OR COMMERCE."  APP.  30.  SINCE THE REMAND
ORDER WAS THE ONLY JUDGMENT BEFORE THE COURT OF APPEALS, IT IS NOT
CLEAR WHAT EFFECT SUBSEQUENT ACTIONS TAKEN BY STATE OFFICIALS WOULD
HAVE ON THE REMOVAL SUIT ON APPEAL.  IN ANY EVENT, BECAUSE OF THE
CONTINUING DISPUTE OVER WHAT STATE STATUTE WAS USED AS THE BASIS FOR
THE CHARGES IN STATE COURT, AND CORRESPONDINGLY, WHAT CONDUCT WAS
ALLEGED, THE QUESTION WHETHER THE CONDUCT WAS PROTECTED UNDER FEDERAL
LAW IS ONE THAT SHOULD BE LEFT TO THE COURTS BELOW TO DETERMINE ON
REMAND. 

/6/ THE COURT NOTES "THE SIMILARITY BETWEEN THE LANGUAGE OF SEC.
1971 (B) . . . AND THE COMPARABLE LANGUAGE OF SEC. 24KB)," ANTE, AT 221
N. 10.  THE STATUTES DO, INDEED, HAVE SIMILAR LANGUAGE, BUT THE CONDUCT
PROTECTED UNDER SEC. 1971(B) IS VOTING, AND THERE WAS NO ALLEGATION IN
PEACOCK THAT THE DEFENDANTS WERE ENGAGED IN VOTING.  IT WAS UNNECESSARY
FOR THE COURT TO DETERMINE WHETHER SEC. 1971(B), OR A STATUTE WITH
SIMILAR PROHIBITORY LANGUAGE, WOULD PROVIDE A MEANS FOR REMOVAL BECAUSE
(1) THE CONDUCT WITH WHICH THE DEFENDANTS WERE CHARGED WAS NOT
PROTECTED UNDER ANY FEDERAL LAW; AND (2) THEIR CONDUCT, AS ALLEGED IN
THEIR OWN REMOVAL PETITION, WAS NOT WITHIN THE SCOPE OF SEC. 1971(B). 

ANOTHER STATUTE, 42 U.S.C. SEC. 1973(B), WHICH WAS ENACTED AFTER THE
REMOVAL IN PEACOCK, PROTECTED THOSE URGING OTHERS TO EXERCISE THEIR
RIGHTS TO VOTE, AND THUS WOULD HAVE REACHED THE CONDUCT IN WHICH THE
PEACOCK DEFENDANTS CLAIMED TO HAVE BEEN ENGAGED.  SEE WHATLEY V. CITY
OF VIDALIA, 399 F.2D 521 (CA 5 1968).  EVEN UNDER THAT STATUTE,
HOWEVER, REMOVAL WOULD NOT HAVE BEEN AVAILABLE IN PEACOCK BECAUSE THE
CONDUCT WITH WHICH THE DEFENDANTS WERE CHARGED IN THE STATE COURT
PROCEEDING WAS UNPROTECTED BY THAT OR ANY OTHER FEDERAL LAW. 

/7/ SECTION 245(A)(1) HAD ITS ORIGIN IN AN AMENDMENT OFFERED TO THE
HOUSE BILL BY REPRESENTATIVE WHITENER.  IN HIS WORDS, THE AMENDMENT WAS
INTENDED TO ENSURE:  "(NOTHING CONTAINED IN THIS ACT SHALL INDICATE AN
INTENT ON THE PART OF CONGRESS TO OCCUPY THE FIELD IN WHICH ANY
PROVISION OF THE ACT OPERATES TO THE EXCLUSION OF STATE LAWS ON THE
SAME SUBJECT MATTER, NOR SHALL ANY PROVISION OF THIS ACT BE CONSTRUED
AS INVALIDATING ANY PROVISION OF STATE LAW UNLESS SUCH PROVISION IS
INCONSISTENT WITH ANY OF THE PURPOSES OF THIS ACT OR ANY PROVISION
THEREOF.  . . . WITHOUT THE AMENDMENT, THERE WOULD BE AN UNWARRANTED
DEPRIVATION OF CRIMINAL JURISDICTION NOW EXERCISED BY THE SEVERAL
STATES IN MOST OF THE FIELDS OF CRIMINAL LAW TOUCHED BY THIS BILL." 
113 CONG. REC. 22745 (1967).  SEE ALSO ID, AT 22683 (REP. WHITERER). 

IN THE SENATE, THE FINAL LANGUAGE OF SEC. 245(A)(1) WAS ADOPTED AS
PART OF SENATOR DIRKSEN'S AMENDMENT TO THE BILL.  THE EXPLANATION OF
THE PROVISION GIVEN TO THE SENATE WAS AS FLLLOWS: 

" SECTION (A) OF THE BILL EXPRESSES THE INTENT OF CONGRESS NOT TO
SUPERSEDE STATE AND LOCAL LAW ENFORCEMENT EXCEPT WHERE REQUIRED BY THE
PUBLIC INTEREST IN ORDER TO OBTAIN SUBSTANTIAL JUSTICE.  IN ALL CASES
STATE AND LOCAL LAW WOULD CONTINUE TO APPLY, AND WOULD NOT BE PREEMPTED
BY FEDERAL LAW.  HOWEVER, IN THOSE SITUATIONS WHEN STATE AND LOCAL LAW
ENFORCEMENT IS UNABLE OR UNWILLING TO PROSECUTE EFFECTIVELY, FEDERAL
PROSECTUION MAY BE UNDERTAKEN.  TO ASSURE THAT DECISIONS RELATING TO
EXERCISE OF THIS DUAL JURISDICTION ARE CAREFULLY MADE, THE BILL
REQUIRES ADVANCE CERTIFICATION OF PROSECUTORIAL AUTHORITY BY THE
ATTORNEY GENERAL OR THE DEPUTY ATTORNEY GENERAL."  114 CONG. REC. 4907
(1968). 

/8/ IN ITS ANALYSIS, THE COURT RELIES IN PART ON A STATEMENT BY
SENATOR KENNEDY TO THE EFFECT THAT A STATE LAW ENFORCEMENT OFFICER
REASONABLY BELIEVING THAT HE IS DOING HIS DUTY, WOULD NOT VIOLATE SEC.
245, WHICH REQUIRES AT LEAST KNOWING INTERFERENCE WITH CIVIL RIGHTS. 
THE INTERFERENCE ALLEGED IN THE REMOVAL PETITION, HOWEVER, IS
INTENTIONAL INTERFERENCE, WHICH WOULD FALL WITHIN THE LITERAL TERMS OF
THE STATUTE. 

FRANK R. PARKER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE J. HAROLD FLANNERY AND PAUL R. DIMOND. 

ED DAVIS NOBLE, JR., SPECIAL ASSISTANT ATTORNEY GENERAL OF
MISSISSIPPI, ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON BRIEF WERE
A.F. SUMMER, ATTORNEY GENERAL, AND WILLIAM A. ALLAIN, FIRST ASSISTANT
ATTORNEY GENERAL. 
..END :






















ALYESKA PIPELINE SERVICE CO. V. WILDERNESS SOCIETY, 421 U.S. 240 


       ALYESKA PIPELINE SERVICE CO. V. WILDERNESS SOCIETY ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

      NO. 73 - 1977.  ARGUED JANUARY 22, 1975--DECIDED MAY 12,

           1975; 161 U.S. APP. D.C. 446, 495 F.2D 1026, REVERSED. 


    UNDER THE " AMERICAN RULE" THAT ATTORNEYS' FEES ARE NOT

  ORDINARILY RECOVERABLE BY THE PREVAILING LITIGANT IN FEDERAL

  LITIGATION IN THE ABSENCE OF STATUTORY AUTHORIZATION,

  RESPONDENTS, WHICH HAD INSTITUTED LITIGATION TO PREVENT ISSUANCE

  OF GOVERNMENT PERMITS REQUIRED FOR CONSTRUCTION OF THE

  TRANS-ALASKA OIL PIPELINE, CANNOT RECOVER ATTORNEYS' FEES FROM

  PETITIONER BASED ON THE "PRIVATE ATTORNEY GENERAL" APPROACH

  ERRONEOUSLY APPROVED BY THE COURT OF APPEALS, SINCE ONLY

  CONGRESS, NOT THE COURTS, CAN AUTHORIZE SUCH AN EXCEPTION TO THE

  AMERICAN RULE.  PP. 247 - 271. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

  C.J., AND STEWART, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

  BRENNAN, J., POST, P. 271, AND MARSHALL, J., POST, P. 272, FILED

  DISSENTING OPINIONS.  DOUGLAS AND POWELL, JJ., TOOK NO PART IN

  THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION WAS INITIATED BY RESPONDENTS WILDERNESS SOCIETY,
ENVIRONMENTAL DEFENSE FUND, INC., AND FRIENDS OF THE EARTH IN AN
ATTEMPT TO PREVENT THE ISSUANCE OF PERMITS BY THE SECRETARY OF THE
INTERIOR WHICH WERE REQUIRED FOR THE CONSTRUCTION OF THE TRANS-ALASKA
OIL PIPELINE.  THE COURT OF APPEALS AWARDED ATTORNEYS' FEES TO
RESPONDENTS AGAINST PETITIONER ALYESKA PIPELINE SERVICE CO. BASED UPON
THE COURT'S EQUITABLE POWERS AND THE THEORY THAT RESPONDENTS WERE
ENTITLED TO FEES BECAUSE THEY WERE PERFORMING THE SERVICES OF A
"PRIVATE ATTORNEY GENERAL."  CERTIORARI WAS GRANTED, 419 U.S. 823
(1974), TO DETERMINE WHETHER THIS AWARD OF ATTORNEYS' FEES WAS
APPROPRIATE.  WE REVERSE. 

   I A MAJOR OIL FIELD WAS DISCOVERED IN THE WORTH SLOPE OF ALASKA
IN 1968.  /1/ IN JUNE 1969, THE OIL COMPANIES CONSTITUTING THE
CONSORTIUM OWNING ALYESKA /2/ SUBMITTED AN APPLICATION TO THE
DEPARTMENT OF THE INTERIOR FOR RIGHTS-OF-WAY FOR A PIPELINE THAT WOULD
TRANSPORT OIL FROM THE NORTH SLOPE ACROSS LAND IN ALASKA OWNED BY THE
UNITED STATES, /3/ A MAJOR PART OF THE TRANSPORT SYSTEM WHICH WOULD
CARRY THE OIL TO ITS ULTIMATE MARKETS IN THE LOWER 48 STATES.  A
SPECIAL INTERDEPARTMENTAL TASK FORCE STUDIED THE PROPOSAL AND REPORTED
TO THE PRESIDENT.  FEDERAL TASK FORCE ON ALASKAN OIL DEVELOPMENT:  A
PRELIMINARY REPORT TO THE PRESIDENT (1969), IN APP. 78 - 87.  AN
AMENDED APPLICATION WAS SUBMITTED IN DECEMBER 1969, WHICH REQUEST A 54
FOOT RIGHT-OF-WAY, ALONG WITH APPLICATIONS FOR "SPECIAL LAND USE
PERMITS" ASKING FOR ADDITIONAL SPACE ALONGSIDE THE RIGHT-OF-WAY AND FOR
THE CONSTRUCTION OF A ROAD ALONG ONE SEGMENT OF THE PIPELINE.  /4/ 

RESPONDENTS BROUGHT THIS SUIT IN MARCH 1970, AND SOUGHT DECLARATORY
AND INJUNCTIVE RELIEF AGAINS THE SECRETARY OF THE INTERIOR ON THE
GROUNDS THAT HE INTENDED TO ISSUE THE RIGHT-OF-WAY AND SPECIAL LAND-USE
PERMITS IN VIOLATION OF SEC. 28 OF THE MINERAL LEASING ACT OF 1920, 41
STAT. 449, AS AMENDED, 30 U.S.C. SEC. 185, /5/ AND WITHOUT COMPLIANCE
WITH THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 (NEPA), 83 STAT.
852, 42 U.S.C. SEC. 4321 ET SEQ. /6/ ON THE BASIS OF BOTH THE MINERAL
LEASING ACT AND THE NEPA, THE DISTRICT COURT GRANTED A PRELIMINARY
INJUNCTION AGAINST ISSUANCE OF THE RIGHT-OF-WAY AND PERMITS.  325 F.
SUPP. 422 (DC 1970). 

SUBSEQUENTLY THE STATE ALASKA AND PETITIONER ALYESKA WERE ALLOWED TO
INTERVENE /7/ ON MARCH 20, 1972, THE INTERIOR DEPARTMENT RELEASED A SIZ
VOLUME ENVIRNOMENTAL IMPACT STATEMENT AND A THREE-VOLUME ECONOMIC AND
SECURITY ANALYSIS.  /8/  AFTER A PERIOD OF TIME SET ASIDE FOR PUBLIC
COMMENT, THE SECRETARY ANNOUNCED THAT THE REQUESTED PERMITS WOULD BE
GRANTED TO ALYESKA.  APP. 105 - 138.  BOTH THE MINERAL LEASING ACT AND
THE NEPA ISSUES WERE AT THAT POINT FULLY BRIEFED AND ARGUED BEFORE THE
DISTRICT COURT.  THAT COURT THEN DECIDED TO DISSOLVE THE PRELIMINARY
INJUNCTION, TO DENY THE PERMANENT INJUNCTION, AND TO DISMISS THE
COMPLAINT.  /9/ 

UPON APPEALS, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT REVERSED, BASING ITS DECISION SOLELY ON THE MINERAL LEASING
ACT.  156 U.S. APP. D.C. 121, 479 F.2D 842 (1973) (EN BANC).  FINDING
THAT THE NEPA ISSUES WERE VERY COMPLEX AND IMPORTANT, THAT DECIDING
THEM WAS NOT NECESSARY AT THAT TIME SINCE PIPELINE CONSTRUCTION WOULD
BE ENJOINED AS A RESULT OF THE VIOLATION OF THE MINERAL LEASING ACT,
THAT THEY INVOLVED ISSUES OF FACT STILL IN DISPUTE, AND THAT IT WAS
DESIRABLE TO EXPEDITE ITS DECISION AS MUCH AS POSSIBLE, THE COURT OF
APPEALS DECLINED TO DECIDE THE MERITS OF RESPONDENTS' NEPA CONTENTIONS
WHICH HAD BEEN REJECTED BY THE DISTRICT COURT.  /10/ CERTIORARI WAS
DENIED HERE.  411 U.S. 917 (1973). 

CONGRESS THEN ENACTED LEGISLATION WHICH AMENDED THE MINERAL LEASING
ACT TO ALLOS THE GRANTING OF THE PERMITS SOUGHT BY ALYESKA /11/ AND
DECLARED THAT NO FURTHER ACTION UNDER THE NEPA WAS NECESSARY BEFORE
CONSTRUCTION OF THE PIPELINE COULD PROCEED.  /12/ 

WITH THE MERITS OF THE LITIGATION EFFECTIVELY TERMINATED BY THIS
LEGISLATION, THE COURT OF APPEALS TURNED TO THE QUESTIONS INVOLVED IN
RESPONDENTS' REQUESTS FOR AN AWARD OF ATTORNEYS' FEES.  /13/ 161 U.S.
APP. D.C. 446, 495 F.2D 1026 (1974) (EN BANC).  SINCE THERE WAS NO
APPLICABLE STATUTORY AUTHORIZATIN FOR SUCH AN AWARD, THE COURT
PROCEEDED TO CONSIDER WHETHER THE REQUESTED FEE AWARD FELL WITHIN ANY
OF THE EXCEPTIONS TO THE GENERAL " AMERICAN RULE" THAT THE PREVAILING
PARTY MAY NOT RECOVER ATTORNEYS' FEES AS COSTS OR OTHERWISE.  THE
EXCEPTION FOR AN AWARD AGAINST A PARTY WHO HAD ACTED IN BAD FAITH WAS
INAPPOSITE, SINCE THE POSITION TAKEN BY THE FEDERAL AND STATE PARTIES
AND ALYESKA "WAS MANIFESTLY REASONABLE AND ASSUMED IN GOOD FAITH . . .
."  ID., AT 449, 495 F.2D, AT 1029.  APPLICATION OF THE "COMMON
BENEFIT" EXCEPTION WHICH SPREADS THE COST OF LITIGATION TO THOSE
PERSONS BENEFITING FROM IT WOULD "STRETCH IT TOTALLY OUTSIDE ITS BASIC
RATIONALE . . . ."  IBID.  /14/ THE COURT OF APPEALS NEVERTHELESS HELD
THAT RESPONDENTS HAD ACTED TO VINDICATE "IMPORTANT STATUTORY RIGHTS OF
ALL CITIZENS . . . ," ID., AT 452, 495 F.2D, AT 1032, HAD ENSURED THAT
THE GOVERNMENTAL SYSTEM FUNCTIONED PROPERLY, AND WERE ENTITLED TO
ATTORNEYS' FEES LEST THE GREAT COST OF LITIGATION OF THIS KIND,
PARTICULARLY AGAINST WELL-FINANCED DEFENDANTS SUCH AS ALYESKA, DETER
PRIVATE PARTIES DESIRING TO SEE THE LAWS PROTECTING THE ENVIRONMENT
PROPERLY ENFORCED.  TITLE 28 U.S.C. SEC. 2412 /15/ WAS THOUGHT TO BAR
TAXING ANY ATTORNEYS'  FEES AGAINST THE UNITED STATES, AND IT WAS ALSO
DEEMED INAPPROPRIATE TO BURDEN THE STATE OF ALASKA WITH ANY PART OF THE
AWARD.  /16/ BUT ALYESKA, THE COURT OF APPEALS HELD, COULD FAIRLY BE
REQUIRED TO PAY ONE-HALF OF THE FULL AWARD TO WHICH RESPONDENTS WERE
ENTITLED FOR HAVING PERFORMED THE FUNCTIONS OF A PRIVATE ATTORNEY
GENERAL.  OBSERVING THAT "(THE FEE SHOULD REPRESENT THE REASONABLE
VALUE OF THE SERVICES RENDERED, TAKING INTO ACCOUNT ALL THE SURROUNDING
CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, THE TIME AND LABOR
REQUIRED ON THE CASE, THE BENEFIT TO THE PUBLIC, THE SKILL DEMANDED BY
THE NOVELTY OR COMPLEXITY OF THE ISSUES, AND THE INCENTIVE FACTOR," 161
U.S. APP. D.C., AT 456, 495 F.2D, AT 10336 THE COURT OF APPEALS
REMANDED THE CASE TO THE DISTRICT COURT FOR ASSESSMENT OF THE DOLLAR
AMOUNT OF THE AWARD.  /17/

        II 

IN THE UNITED STATES, THE PREVAILING LITIGANT IS ORDINARILY NOT
ENTITLED TO COLLECT A REASONABLE ATTORNEYS' FEE FROM THE LOSER.  WE ARE
ASKED TO FASHION A FAR-REACHING EXCEPTION TO THIS " AMERICAN RULE"; BUT
HAVING CONSIDERED ITS ORIGIN AND DEVELOPMENT, WE ARE CONVINCED THAT IT
WOULD BE INAPPROPRIATE FOR THE JUDICIARY, WITHOUT LEGISLATIVE GUIDANCE,
TO REALLOCATE THE BURDENS OF LITIGATION IN THE MANNER AND TO THE EXTENT
URGED BY RESPONDENTS AND APPROVED BY THE COURT OF APPEALS. 

AT COMMON LAW, COSTS WERE NOT ALLOWED; BUT FOR CENTURIES IN ENGLAND
THERE HAS BEEN STATUTORY AUTHORIZATION TO AWARD COSTS, INCLUDING
ATTORNEYS' FEES.  ALTHOUGH THE MATTER IS IN THE DISCRETION OF THE
COURT, COUNSEL FEES ARE REGULARLY ALLOWED TO THE PREVAILING PARTY. 
/18/ 

DURING THE FIRST YEARS OF THE FEDERAL-COURT SYSTEM, CONGRESS
PROVIDED THROUGH LEGISLATION THAT THE FEDERAL COURTS WERE TO FOLLOW THE
PRACTICE WITH RESPECT TO AWARDING ATTORNEYS' FEES OF THE COURTS OF THE
STATES IN WHICH THE FEDERAL COURTS WERE LOCATED, /19/ WITH THE
EXCEPTION OF DISTRICT COURTS UNDER ADMIRALTY AND MARITIME JURISDICTION
WHICH WERE TO FOLLOW A SPECIFIC FEE SCHEDULE.  /20/ THOSE STATUTES, BY
1800, HAD EITHER EXPIRED OR BEEN REPEALED. 

IN 1796, THIS COURT APPEARS TO HAVE RULED THAT THE JUDICIARY ITSELF
WOULD NOT CREATE A GENERAL RULE, INDEPENDENT OF ANY STATUTE, ALLOWING
AWARDS OF ATTORNEYS' FEES IN FEDERAL COURTS.  IN ARCAMBEL B. WISEMAN, 3
DALL.  306, THE INCLUSION OF ATTORNEYS' FEES AS DAMAGES /21/ WAS
OVERTURNED ON THE GROUND THAT "(THE GENERAL PRACITCE OF THE UNITED
STATES IS IN OPOSITION (SIC) TO IT; AND EVEN IF THAT PRACTICE WERE NOT
STRICTLY CORRECT IN PRINCIPLE, IT IS ENTITLED TO THE RESPECT OF THE
COURT, TILL IT IS CHANGED, OR MODIFIED, BY STATUTE."  THIS COURT HAS
CONSISTENTLY ADHERED TO THAT EARLY HOLDING.  SEE DAY V. WOODWORTH, 13
HOW.  363 (1952); OLERICHS V. SPAIN, 15 WALL.  211 (1872); FLANDERS V.
TWEED, 15 WALL.  450 (1873); STEWART V. SONNEBORN, 98 U.S. 187 (1879);
FLEISCHMANN DISTILLING CORP. V. MAIER BREWING CO., 386 U.S. 714, 717 -
718 (1967); F.D. RICH CO., INC. V. UNITED STATES EX REL. INDUSTRIAL
LUMBER CO., INC., 417 U.S. 116, 126 - 131 (1974). 

THE PRACTICE AFTER 1799 AND UNTIL 1853 CONTINUED AS BEFORE, THAT IS,
WITH THE FEDERAL COURTS REFERRING TO THE STATE RULES GOVERNING AWARDS
OF COUNSEL FEES, ALTHOUGH THE EXPRESS LEGISLATIVE AUTHORIZATION FOR
THAT PRACTICE HAD EXPIRED.  /22/ BY LEGISLATION IN 1842, CONGRESS DID
GIVE THIS COURT AUTHORITY TO PRESCRIBE THE ITEMS AND AMOUNTS OF COSTS
WHICH COULD BE TAXED IN FEDERAL COURTS, BUT THE COURT TOOK NO ACTION
UNDER THIS STATUTORY MANDATE.  /23/ SEE S. LAW, THE JURISDICTION AND
POWERS OF THE UNITED STATES COURTS 271 N. 1 (1852). 

IN 1853, CONGRESS UNDERTOOK TO STANDARDIZE THE COSTS ALLOWABLE IN
FEDERAL LITIGATION.  IN SUPPORT OF THE PROPOSED LEGISLATION, IT WAS
ASSERTED THAT THERE WAS GREAT DIVERSITY IN PRACTICE AMONG THE COURTS
AND THAT LOSING LITIGANTS WERE BEING UNFAIRLY SADDLED WITH EXORBITANT
FEES FOR THE VICTOR'S ATTORNEY.  /24/ THE RESULT WAS A FAR-REACHING ACT
SPECIFYING IN DETAIL THE NATURE AND AMOUNT OF THE TAXABLE ITEMS OF COST
IN THE FEDERAL COURTS.  ONE OF ITS PURPOSES WAS TO LIMIT ALLOWANCES FOR
ATTORNEYS' FEES THAT WERE TO BE CHARGED TO THE LOSING PARTIES. 
ALTHOUGH THE ACT DISCLAIMED ANY INTENTION TO LIMIT THE AMOUNT OF FEES
THAT AN ATTORNEY AND HIS CLIENT MIGHT AGREE UPON BETWEEN THEMSELVES,
COUNSEL FEES COLLECTIBLE FROM THE LOSING PARTY WERE EXPRESSLY LIMITED
TO THE AMOUNTS STATED IN THE ACT: 

" THAT IN LIEU OF THE COMPENSATION NOW ALLOWED BY LAW TO ATTORNEYS,
SOLICITORS, AND PROCTORS IN THE UNITED STATES COURTS, TO UNITED STATES
DISTRICT ATTORNEYS, CLERKS OF THE DISTRICT AND CIRCUIT COURTS,
MARSHALS, WITNESSES, JURORS, COMMISSIONERS, AND PRINTERS, IN THE
SEVERAL STATES, THE FOLLOWING AND NO OTHER COMPENSATION SHALL BE TAXED
AND ALLOWED.  BUT THIS ACT SHALL NOT BE CONSTRUED TO PROHIBIT
ATTORNEYS, SOLICITORS, AND PROCTORS FROM CHARGING TO AND RECEIVING FROM
THEIR CLIENTS, OTHER THAN THE GOVERNMENT, SUCH REASONABLE COMPENSATION
FOR THEIR SERVICES, IN ADDITION TO THE TAXABLE COSTS, AS MAY BE IN
ACCORDANCE WITH GENERAL USAGE IN THEIR RESPECTIVE STATES, OR MAY BE
AGREED UPON BETWEEN THE PARTIES."  ACT OF FEB. 26, 1853, 10 STAT. 161. 
THE ACT THEN PROCEEDS TO LIST SPECIFIC SUMS FOR THE SERVICES OF
ATTORNEYS, SOLICITORS, AND PROCTORS.  /25/ 

THE INTENTION OF THE ACT TO CONTROL THE ATTORNEYS' FEES RECOVERABLE
BY THE PREVAILING PARTY FROM THE LOSER WAS REPEATEDLY ENFORCED BY THIS
COURT.  IN THE BALTIMORE, 8 WALL.  377 (1869), A $500 ALLOWANCE FOR
COUNSEL WAS SET ASIDE, THE COURT REVIEWING THE HISTORY OF COSTS IN THE
UNITED STATES COURTS AND CONCLUDING: 

     " FEES AND COSTS, ALLOWED TO THE OFFICERS THEREIN NAMED, ARE

  NOW REGULATED BY THE ACT OF THE 26TH OF FEBRARY, 1853, WHICH

  PROVIDES, IN ITS 1ST SECTION, THAT IN LIEU OF THE COMPENSATION

NOW ALLOWED BY LAW TO ATTORNEYS, SOLICITORS, PROCTORS, DISTRICT

  ATTORNEYS, CLERKS, MARSHALS, WITNESSES, JURORS, COMMISSIONERS,

  AND PRINTERS, THE FOLLOWING AND NO OTHER COMPENSATION SHALL BE

  ALLOWED. 

      " ATTORNEYS, SOLICITORS, AND PROCTORS MAY CHARGE THEIR
CLIENTS

  REASONABLY FOR THEIR SERVICES, IN ADDITION TO THE TAXABLE COSTS,

  BUT NOTHING CAN BE TAXED AS COST AGAINST THE OPPOSITE PARTY, AS

  AN INCIDENT TO THE JUDGMENT, FOR THEIR SERVICES, EXCEPT THE COSTS

  AND FEES THEREIN DESCRIBED AND ENUMERATED.  THEY MAY TAX A DOCKET

  FEE OF TWENTY DOLLARS ON A FINAL HEARING IN ADMIRALTY, IF THE

  LIBELLANT RECOVERS FIFTY DOLLARS, BUT IF HE RECOVERS LESS THAN

FIFTY DOLLARS, THE DOCKET FEE OF THE PROCTOR SHALL BE BUT TEN

  DOLLARS."  ID., AT 392 (FOOTNOTES OMITTED). 

IN FLANDERS V. TWEED, 15 WALL.  450 (1872), A COUNSEL'S FEE OF $6,000
WAS INCLUDED BY THE JURY IN THE DAMAGES AWARD.  THE COURT HELD THE ACT
FORBADE SUCH ALLOWANCES: 

" FEES AND COSTS ALLOWED TO OFFICERS THEREIN NAMED ARE NOW REGULATED
BY THE ACT OF CONGRESS PASSED FOR THAT PURPOSE, WHICH PROVIDES IN ITS
FIRST SECTION, THAT, IN LIEU OF THE COMPENSATION PREVIOUSLY ALLOWED BY
LAW TO ATTORNEYS, SOLICITORS, PROCTORS, DISTRICT ATTORNEYS, CLERKS,
MARSHALLS, WITNESSES, JURORS, COMMISSIONERS, AND PRINTERS, THE
FOLLOWING AND NO OTHER COMPENSATION SHALL BE ALLOWED.  ATTORNEYS,
SOLICITORS, AND PROCTORS MAY CHARGE THEIR CLIENTS REASONABLY FOR THEIR
SERVICES, IN ADDITION TO THE TAXABLE COSTS, BUT NOTHING CAN BE TAXED OR
RECOVERED AS COST AGAINST THE OPPOSITE PARTY, AS AN INCIDENT TO THE
JUDGMENT, FOR THEIR SERVICES, EXCEPT THE COSTS AND FEES THEREIN
DESCRIBED AND ENUMERATED.  THEY MAY TAX A DOCKET FEE OF TWENTY DOLLARS
IN A TRIAL BEFOEE A JURY, BUT THEY ARE RESTRICTED TO A CHARGE OF TEN
DOLLARS IN CASES AT LAW, WHERE JUDGMENT IS RENDERED WITHOUT A JURY." 
ID., AT 452 - 453 (FOOTNOTE OMITTED).  SEE ALSO IN RE PASCHAL, 10
WALL.  483, 493 - 494 (1871). 

ALTHOUGH, AS WILL BE SEEN, CONGRESS HAS MADE SPECIFIC PROVISION FOR
ATTORNEYS' FEES UNDER CERTAIN FEDERAL STATUTES, IT HAS NOT CHANGED THE
GENERAL STATUTORY RULE THAT ALLOWANCES FOR COUNSEL FEES ARE LIMITED TO
THE SUMS SPECIFIED BY THE COSTS STATUTE.  THE 1853 ACT WAS CARRIED
FORWARD IN THE REVISED STATUTES OF 1874 /26/  AND BY THE JUDICIAL CODE
OF 1911.  /27/ ITS SUBSTANCE, WITHOUT ANY APPARENT INTENT TO CHANGE THE
CONTROLLING RULES, WAS ALSO INCLUDED IN THE REVISED CODE OF 1948 AS 28
U.S.C. SEC. 1920 /28/ AND 1923(A).  /29/  UNDER SEC. 1920, A COURT MAY
TAX AS COSTS THE VARIOUS ITEMS SPECIFIED, INCLUDING THE "DOCKET FEES"
UNDER SEC. 1923(A).  THAT SECTION PROVIDES THAT "(ATTORNEY'S AND
PROCTOR'S DOCKET FEES IN COURTS OF THE UNITED STATES MAY BE TAXES AS
COSTS AS FOLLOWS . . . ."  AGAINST THIS BACKGROUND, THIS COURT
UNDERSTANDABLY DECLARED IN 1967 THAT WITH THE EXCEPTION OF THE SMALL
AMOUNTS ALLOWED BY SEC. 1923, THE RULE "HAS LONG BEEN THAT ATTORNEY'S
FEES ARE NOT ORDINARILY RECOVERABLE . . . ."  FLEISCHMANN DISTILLING
CORP., 286 U.S., AT 717.  OTHER RECENT CASES HAVE ALSO REAFFIRMED THE
GENERAL RULE THAT, ABSENT STATUTE OR ENFORCEABLE CONTRACT, LITIGANTS
PAY THEIR OWN ATTORNEYS' FEES.  SEE F.D. RICH CO., 417 U.S., AT 128 -
131; HALL V. COLE, 412 U.S. 1, 4 (1973). 

TO BE SURE, THE FEE STATUTES HAVE BEEN CONSTRUED TO ALLOW, IN
LIMITED CIRCUMSTANCES, A REASONABLE ATTORNEYS' FEE TO THE PREVAILING
PARTY IN EXCESS OF THE SMALL SUMS PERMITTED BY SEC. 1923.  IN TRUSTEES
V. GREENOUGH, 105 U.S. 527 (1882), THE 1853 ACT WAS READ AS NOT
INTERFERING WITH THE HISTORIC POWER OF EQUITY TO PERMIT THE TRUSTEE OF
A FUND OR PROPERTY, OR A PARTY PRESERVING OR RECOVERING A FUND OR
PROPERTY, OR A PARTY PRESERVING OR RECOVERING A FUND FOR THE BENEFIT OF
OTHERS IN ADDITION TO HIMSELF, TO RECOVER HIS COSTS, INCLUDING HIS
ATTORNEYS' FEES, FROM THE FUND OR PROPERTY ITSELF OR DIRECTLY FROM THE
OTHER PARTIES ENJOYING THE BENEFIT.  /30/ THE RULS HAS BEEN
CONSISTENTLY FOLLOWED.  CENTRAL AILROAD & BANKING CO. V. PETTUS, 113
U.S. 116 (1885); HARRISON V. PEREA, 168 U.S. 311, 325 - 326 (1897);
UNITED STATES V. EQUITABLE TRUST CO., 283 U.S. 738 (1931); SPRAGUE V.
TICONIC NATIONAL BANK, 307 U.S. 161 (1939); MILLS V. ELECTRIC AUTO-LITE
CO., 396 U.S. 375 (1970); HALL V. DOLE, SUPRA; CF. HOBBS V. MC LEAN,
117 U.S. 567, 581 - 582 (1886).  SEE GENERALLY DAWSON, LAWYERS AND
INVOLUNTARY CLIENTS:  ATTORNEY FEES FROM FUNDS, 87 HARV. L. REV. 1597
(1974).  ALSO, A COURT MAY ASSESS ATTORNEYS' FEES FOR THE "WILLFUL
DISOBEDIENCE OF A COURT ORDER . . . AS PART OF THE FINE TO BE LEVIED ON
THE DEFENDANT, TOLEDO SCALE CO. V. COMPUTING SCALE CO., 261 U.S. 399,
426 - 428 (1923),"  FLEISCHMANN DISTILLING CORP. V. MAIER BREWING CO.,
SUPRA, AT 718; OR WHEN THE LOSING PARTY HAS "ACTED IN BAD FAITH,
VEXATIOUSLY, WANTONLY, OR FOR OPPORESSIVE REASONS . . . ."  F.D. RICH
CO., 417 U.S., AT 129 (CITING VAUGHAN V. ATKINSON, 369 U.S. 527
(1962)); CF. UNIVERSAL OIL PRODUCTS CO. V. ROOT REFINING CO., 328 U.S.
575, 580 (1946).  THESE EXCEPTIONS ARE UNQUESTIONABLY ASSERTIONS OF
INHERENT POWER IN THE COURTS TO ALLOW ATTORNEYS' FEES IN PARTICULAR
SITUATIONS, UNLESS FORBIDDEN BY CONGRESS, BUT NONE OF THE EXCEPTIONS IS
INVOLVED HERE.  /31/ THE COURT OF APPEALS EXPRESSLY DISCLAIMED RELIANCE
OF ANY OF THEM.  SEE SUPRA, AT 245. 

CONGRESS HAS NOT REPUDIATED THE JUDICIALLY FASHIONED EXCEPTIONS TO
THE GENERAL RULE AGAINST ALLOWING SUBSTANTIAL ATTORNEYS' FEES; BUT
NEITHER HAS IT RETRACTED, REPEALED, OR MODIFIED THE LIMITATIONS ON
TAXABLE FEES CONTAINED IN THE 1853 STATUTE AND ITS SUCCESSORS.  /32/
NOR HAS IT EXTENDED ANY ROVING AUTHORITY TO THE JUDICIARY TO ALLOW
COUNSEL FEES AS COSTS OR OTHERWISE WHENEVER THE COURTS MITHT DEEM THEM
WARRANTED.  WHAT CONGRESS HAS DONE, HOWEVER, WHILE FULLY RECOGNIZING
AND ACCEPTING THE GENERAL RULE, IS TO MAKE SPECIFIC AND EXPLICIT
PROVISIONS FOR THE ALLOWANCE OF ATTORNEYS' FEES UNDER SELECTED STATUTES
GRANTING OR PROTECTING VARIOUS FEDERAL RIGHTS.  /33/ THESE STATUTORY
ALLOWANCES ARE NOW AVAILABLE IN A VARIETY OF CIRCUMSTANCES, BUT THEY
ALSO DIFFER CONSIDERABLY AMONG THEMSELVES.  UNDER THE ANTITRUST LAWS,
FOR INSTANCE, ALLOWANCE OF ATTORNEYS' FEES TO A PLAINTIFF AWARDED
TREBLE DAMAGES IS MANDATORY.  /24/ IN PATENT LITIGATION, IN CONTRAST,
"(THE COURT IN EXCEPTIONAL CASES MAY AWARD REASONABLE ATTORNEY FEES TO
THE PREVAILING PARTY."  35 U.S.C. SEC. 285 (EMPHASIS ADDED).  UNDER
TITLE II OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. SEC. 2000A-3(B),
/35/ THE PREVAILING PARTY IS ENTITLED TO ATTORNEYS' FEES, AT THE
DISCRETION OF THE COURT, BUT WE HAVE HELD THAT CONGRESS INTENDED THAT
THE AWARD SHOULD BE MADE TO THE SUCCESSFUL PLAINTIFF ABSENT EXCEPTIONAL
CIRCUMSTANCES.  NEWMAN V. PIGGIE PARK ENTERPRISES, INC., 390 U.S. 400,
402 (1968).  SEE ALSO NORTHCROSS V. BOARD OF EDUCATION OF THE MEMPHIS
CITY SCHOOLS, 412 U.S. 427 (1973).  UNDER THIS SCHEME OF THINGS, IT IS
APPARENT THAT THE CIRCUMSTANCES UNDER WHICH ATTORNEYS' FEES ARE TO BE
AWARDED AND THE RANGE OF DISCRETION OF THE COURTS IN MAKING THOSE
AWARDS ARE MATTERS FOR CONGRESS TO DETERMINE.  /36/ 

IT IS TRUE UNDER SOME, IF NOT MOST, OF THE STATUTES PROVIDING FOR
THE ALLOWANCE OF REASONABLE FEES, CONGRESS HAS OPTED TO RELY HEAVILY ON
PRIVATE ENFORCEMENT TO IMPLEMENT PUBLIC POLICY AND TO ALLOW COUNSEL
FEES SO AS TO ENCOURAGE PRIVATE LITIGATION.  FEE SHIFTING IN CONNECTION
WITH TREBLE-DAMAGES AWARDS UNDER THE ANTITRUST LAWS IS A PRIME EXAMPLE;
CF. HAWAII V. STANDARE OIL CO., 405 U.S. 251, 265 - 266 (1972); AND WE
HAVE NOTED THAT TITLE II OF THE CIVIL RIGHTS ACT OF 1964 WAS INTENDED
"NOT SIMPLY TO PENALIZE LITIGANTS WHO DELIBERATELY ADVANCE ARGUMENTS
THEY KNOW TO BE UNTENABLE BUT, MORE BROADLY, TO ENCOURAGE INDIVIDUALS
INJURED BY RACIAL DISCRIMINATION TO SEEK JUDICIAL RELIEF UNDER TITLE
II."  NEWMAN, SUPRA, AT 402 (FOOTNOTE OMITTED).  BUT CONGRESSIONAL
UTILIZATION OF THE PRIVATE-ATTORNEY-GENERAL COMCEPT CAN IN NO SENSE BE
CONSTRUED AS A GRANT OF AUTHORITY TO THE JUDICIARY TO JETTISON THE
TRADITIONAL RULE AGAINST NONSTATUTORY ALLOWANCES TO THE PREVAILING
PARTY AND TO AWARD ATTORNEYS' FEES WHENEVER THE COURTS DEEM THE PUBLIC
POLICY FURTHERED BY A PARTICULAR STATUTE IMPORTANT ENOUGH TO WARRANT
THE AWARD. 

CONGRESS ITSELF PRESUMABLE HAS THE POWER AND JUDGMEMT TO PICK AND
CHOOSE AMONG ITS STATUTES AND ALLOW ATTORNEYS' FEES UNDER SOME, BUT NOT
OTHERS.  BUT IT WOULD BE DIFFICULT, INDEED, FOR THE COURTS, WITHOUT
LEGISLATIVE GUIDANCE, TO CONSIDER SOME STATUTES IMPORTANT AND OTHERS
UNIMPORTANT AND TO ALLOW ATTORNEYS' FEES ONLY IN CONNECTION WITH THE
FORMER.  IF THE STATUTORY LIMITATION OF RIGHT-OF-WAY WIDTHS INVOLVED IN
THIS CASE IS A MATTER OF THE GRAVEST IMPORTANCE, IT WOULD APPEAR THAT A
WIDE RANGE OF STATUTES WOULD ARGUABLY SATISFY THE CRITERION OF PUBLIC
IMPORTANCE AND JUSTIFY AN AWARD OF ATTORNEYS' FEES TO THE PRIVATE
LIGIGANT.  AND, IF ANY STATUTORY POLICY IS DEEMED SO IMPORTANT THAT ITS
ENFORCEMENT MUST BE ENCOURAGED BY AWARDS OF ATTORNEYS' FEES, HOW COULD
A COURT DENY ATTORNEYS' FEES TO PRIVATE LITIGANTS IN ACTIONS UNDER 42
U.S.C. SEC. 1983 SEEKING TO VINDICATE CONSTITUTIONAL RIGHTS?  MOREOVER,
SHOULD COURTS, IF THEY WERE TO EMBARK ON THE COURSE URGED BY
RESPONDENTS, OPT FOR AWARDS TO THE PREVAILING PARTY, WHETHER PLAINTIFF
OR DEFENDANT, OR ONLY TO THE PREVAILING PLAINTIFF?  /37/ SHOULD AWARDS
BE DISCRETIONARY OR MANDATORY?  /38/ WOULD THERE BE A PRESUMPTION
OPERATING FOR OR AGAINST THEM IN THE ORDINARY CASE?  SEE NEWMAN, SUPRA.
/39/ 

AS EXEMPLIFIED BY THIS CASE ITSELF, IT IS ALSO EVIDENT THAT THE
RATIONAL APPLICATION OF THE PRIVATE-ATTORNEY-GENERAL RULE WOULD
IMMEDIATELY COLLIDE WITH THE EXPRESS PROVISION OF 28 U.S.C. SEC. 2412. 
/40/  EXCEPT AS OTHERWISE PROVIDED BY STATUTE, THAT SECTION PERMITS
COSTS TO BE TAXED AGAINST THE UNITED STATES, "BUT NOT INCLUDING THE
FEES AND EXPENSES OF ATTORNEYS," IN ANY CIVIL ACTION BROUGHT BY OR
AGAINST THE UNITED STATES OR ANY AGENCY OR OFFICIAL OF THE UNITED
STATES ACTING IN AN OFFICIAL CAPACITY.  IF, AS RESPONDENTS ARGUE, ONE
OF THE MAIN FUNCTIONS OF A PRIVATE ATTORNEY GENERAL IS TO CALL PUBLIC
OFFICIALS TO ACCOUNT AND TO INSIST THAT THEY ENFORCE THE LAW, IT WOULD
FOLLOW IN SUCH CASES THAT ATTORNEYS' FEES SHOULD BE AWARDED AGAINST THE
GOVERNMENT OR THE OFFICIALS THEMSELVES.  INDEED, THAT VERY CLAIM WAS
ASSERTED IN THIS CASE.  /41/ BUT SEC. 2412 ON ITS FACE, AND IN LIGHT OF
ITS LEGISLATIVE HISTORY, GENERALLY BARS SUCH AWARDS, /42/ WHICH, IF
ALLOWABLE AT ALL, MUST BE EXPRESSLY PROVIDED FOR BY STATUTE, AS, FOR
EXAMPLE, UNDER TITLE II OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. SEC.
2000A-3NB).  /43/ 

WE NEED LABOR THE MATTER NO FURTHER.  IT APPEARS TO US THAT THE RULE
SUGGESTED HERE AND ADOPTED BY THE COURT OF APPEALS WOULD MAKE MAJOR
INROADS ON A POLICY MATTER THAT CONGRESS HAS RESERVED FOR ITSELF. 
SINCE THE APPROACH TAKEN BY CONGRESS TO THIS ISSUE HAS BEEN TO CARVE
OUT SPECIFIC EXECPTIONS TO A GENERAL RULE THAT FEDERAL COURTS CANNOT
AWARD ATTORNEYS' FEES BEYOND THE LIMITS OF 28 U.S.C. SEC. 1923, THOSE
COURTS ARE NOT FREE TO FASHION DRASTIC NEW RULES WITH RESPECT TO THE
ALLOWANCE OF ATTORNEYS' FEES TO THE PREVAILING PARTY IN FEDERAL
LITIGATION OR TO PICK AND CHOOSE AMONG PLAINTIFFS AND THE STATUTES
UNDER WHICH THEY SUE AND TO AWARD FEES IN SOME CASES BUT NOT IN OTHERS,
DEPENDING UPON THE COURTS' ASSESSMENT OF THE IMPORTANCE OF THE PUBLIC
POLICIES INVOLVED IN PARTICULAR CASES.  NOR SHOULD THE FEDERAL COURTS
PURPORT TO ADOPT ON THEIR OWN INITIATIVE A RULE AWARDING ATTORNEYS'
FEES BASED ON THE PRIVATE-ATTORNEY-GENERAL APPROACH WHEN SUCH JUDICIAL
RULE WILL OPERATE ONLY AGAINST PRIVATE PARTIES AND NOT AGAINST THE
GOVERNMENT.  /44/ 

WE DO NOT PURPORT TO ASSESS THE MERITS OR DEMERITS OF THE "
AMERICAN RULE" WITH RESPECT TO THE ALLOWANCE OF ATTORNEYS' FEES.  IT
HAS BEEN CRITICIZED IN RECENT YEARS, /45/ AND COURTS HAVE BEEN URGED TO
FIND EXCEPTIONS TO IT.  /46/  IT IS ALSO APPARENT FROM OUR NATINOAL
EXPERIENCE THAT THE ENCOURAGEMENT OF PRIVATE ACTINO TO IMPLEMENNT
PUBLIC POLICY HAS BEEN VIEWED AS DESIRABLE IN A VARIETY OF
CIRCUMSTANCES.  BUT THE RULE FOLLOWED IN OUR COURTS WITH RESPECT TO
ATTORNEYS' FEES HAS SURVIVED.  IT IS DEEPLY ROOTED IN OUR HISTORY AND
IN CONGRESSIONAL POLICY; AND IT IS NOT FOR US TO INVADE THE
LEGISLATURE'S PROVINCE BY REDISTRIBUTING LITIGATION COSTS IN THE MAMMER
SUGGESTED BY RESPONDENTS AND FOLLOWED BY THE COURT OF APPEALS.  /47/ 

THE DECISION BELOW MUST THEREFORE BE REVERSED. 

                                  SO ORDERED. 

/1/ FOR A DISCUSSION AND CHRONOLOGY OF THE EVENTS SURROUNDING THIS
LITIGATION, SEE DOMINICK & BRODY THE ALASKA PIPELINE:  WILDERNESS
SOCIETY V. MORTON AND THE TRANS-ALASKA PIPELINE AUTHORIZATION ACT, 23
AM. U. . REV. 337 (1973). 

/2/ IN 1968, ATLANTIC RICHFIELD CO., HUMBLE OIL & REFINING CO., AND
BRITISH PETROLEUM CORP. FORMED THE TRANS-ALASKA PIPELINE SYSTEM, AND IT
WAS THIS ENTITY WHICH SUBMITTED THE APPLICATIONS FOR THE PERMITS. 
FEDERAL TASK FORCE ON ALASKAN OIL DEVELOPMENT:  A PRELIMINARY REPORT TO
THE PRESIDENT (1969), IN APP. 80; DOMINICK & BRODY, SUPRA, N. 1, AT 337
- 338, N. 3.  IN 1970, THE TRANS-ALASKA PIPELINE SYSTEM WAS REPLACED BY
PETITIONER ALYESKA.  ALYESKA'S STOCK IS OWNED BY ARCO PIPELINE CO.,
PHILLIPS PETROLEUM CO., AMERADA HESS CORP., AND UNION OIL CO. OF
CALIFORNIA.  SEE ID., AT 338 N. 3; APP. 105.     /3/ THE APPLICATION
REQUESTED A PRIMARY RIGHT-OF-WAY OF 54 FEET, AN ADDITIONAL PARALLEL,
ADJACENT RIGHT-OF-WAY FOR CONSTRUCTION PURPOSES OF 46 FEET, AND ANOTHER
RIGHT-OF-WAY OF 100 FEET FOR A CONSTRUCTION ROAD BETWEEN PRUDHOE BAY ON
THE NORTH SLOPE TO THE TOWN OF LIVENGOOD, A DISTANCE SLIGHTLY LESS THAN
HALF THE LENGTH OF THE PROPOSED PIPELINE.  SEE WILDERNESS SOCIETY V.
MORTON, 156 U.S. APP. D.C. 121, 128, 479 F.2D 842, 849 (1973). 

/4/ THE AMENDED APPLICATION ASKED FOR A SINGLE 54-FOOT RIGHT-OF-WAY,
A SPECIAL LAND-USE PERMIT FOR AN ADDITIONAL 11 FEET ON ONE SIDE AND 35
FEET ON THE OTHER SIDE OF THE RIGHT-OF-WAY, AND ANOTHER SPECIAL LAND
USE PERMIT FOR A SPACE 200 FEET IN WIDTH BETWEEN PRUDHOE BAY AND
LIVENGOOD.  ID., AT 128 - 129, 479 F.2D, AT 849 - 850; APP. 89 - 98. 

/5/ TITLE 30 U.S.C. SEC. 185 PROVIDED IN PERTINENT PART: 

" RIGHTS-OF-WAY THROUGH THE PUBLIC LANDS, INCLUDING THE FOREST
RESERVES OF THE UNITED STATES, MAY BE GRANTED BY THE SECRETARY OF THE
INTERIOR FOR PIPE-LINE PURPOSES FOR THE TRANSPORTATION OF OIL OR
NATURAL GAS TO ANY APPLICANT POSSESSING THE (PERSCRIBED) QUALIFICATIONS
. . . TO THE EXTENT OF THE GROUND OCCUPIED BY THE SAID PIPE LINE AND
TWENTY FIVE FOOT ON EACH SIDE OF THE SAME UNDER SUCH REGU REGULATIONS
AND CONDITIONS AS TO SURVEY, LOCATION, APPLICATION, AND USE AS MAY BE
PRESCRIBED BY THE SECRETARY OF THE INTERIOR AND UPON THE EXPRESS
CONDITION THAT SUCH PIPE LINES SHALL BE CONSTRUCTED, OPERATED, AND
MAINTAINED AS COMMON CARRIERS AND SHALL ACCEPT, CONVEY, TRANSPORT, OR
PURCHASE WITHOUT DISCRIMINATION, OIL OR NATURAL GAS PRODUCED FROM
GOVERNMENT LANDS IN THE VICINITY OF THE PIPE LINE IN SUCH PROPORTIONATE
AMOUNTS AS THE SECRETARY OF THE INTERIOR MAY, AFTER A FULL HEARING WITH
DUE NOTICE THEREOF TO THE INTERESTED PARTIES AND A PROPER FINDING OF
FACTS, DETERMINE TO BE REASONABLE:  . . . PROVIDED FURTHER, THAT NO
RIGHT-OF-WAY SHALL HEREAFTER BE GRANTED OVER SAID LANDS FOR THE
TRANSPORTATION OF OIL OR NATURAL GAS EXCEPT UNDER AND SUBJECT TO THE
PROVISIONS, LIMITATIONS, AND CONDITIONS OF THIS SECTION.  FAILURE TO
COMPLY WITH THE PROVISIONS OF THIS SECTION OR THE REGULATIONS AND
CONDITIONS PRESCRIBED BY THE SECRETARY OF THE INTERIOR SHALL BE GROUND
FOR FORFEITURE OF THE GRANT BY THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT IN WHICH THE PROPERTY, OR SOME PART THEREOF, IS LOCATED IN AN
APPROPRIATE PROCEEDING." 

/6/ THE COURT OF APPEALS DESCRIBED THE HEART OF RESPONDENTS' NEPA
CONTENTION TO BE THAT THE SECRETARY DID NOT ADEQUATELY CONSIDER THE
ALTERNATIVE OF A TRANS-CANADA PIPELINE.  156 U.S. APP. D.C., AT 166 -
168, 479 F.2D, AT 887 - 889. 

/7/ THE INTERVENTIONS OCCURRED IN SEPTEMBER 1971, APPROXIMATELY 17
MONTHS AFTER THE DISTRICT COURT HAD GRANTED THE PRELIMINARY INJUNCTION
PREVENTING ISSUANCE OF THE RITHT-OF-WAY AND PERMITS BY THE SECRETARY. 

/8/ THE DEPARTMENT OF THE INTERIOR HAD RELEASED A DRAFT IMPACT
STATEMENT IN JANUARY 1971. 

/9/ THE DECISION IS NOT REPORTED.  SEE ID., AT 130, 479 F.2D, AT
851. 

/10/ AT THE SAME TIME, THE COURT OF APPEALS UPHELD THE GRANT OF
CERTAIN RIGHTS-OF-WAY TO THE STATE OF ALASKA.  ID., AT 158 - 163, 479
F.2D, AT 879 - 884.  IT ALSO CONSIDERED A CHALLENGE TO A SPECIAL LAND
USE PERMIT ISSUED BY THE FOREST SUPERVISOR TO ALYESKA'S PREDECESSOR,
BUT DID NOT FIND THE ISSUE RIPE FOR ADJUDICATION.  ID., AT 163 - 166,
479 F.2D, AT 884 - 887. 

/11/ PUB. L. 93 - 153, TIT. I, SEC. 101, 87 STAT. 576, 30 U.S.C.
SEC. 185 (1973) ED., SUPP. III). 

/12/ TRANS-ALASKA PIPELINE AUTHORIZATION ACT, PUB. L. 93 - 153, TIT.
II, 87 STAT. 584, 43 U.S.C. SEC. 1651 ET SEQ. (1970 ED., SUPP. III). 

/13/ RESPONDENTS' BILL OF COSTS INCLUDES A TOTAL OF 4,455 HOURS OF
ATTORNEYS' TIME SPENT ON THE LITIGATION.  APP. 209 - 219. 

/14/ "(THIS LITIGATION MAY WELL HAVE PROVIDED SUBSTANTIAL BENEFITS
TO PARTICULAR INDIVIDUALS AND, INDEED, TO EVERY CITIZEN'S INTEREST IN
THE PROPER FUNCTIONING OF OUR SYSTEM OF GOVERNMENT.  BUT IMPOSING
ATTORNEYS' FEES ON ALYESKA WILL NOT OPERATE TO SPREAD THE COSTS OF
LITIGATION PROPORTIONATELY AMONG THESE BENEFICIARIES . . . ."  161 U.S.
APP. D.C., AT 449, 495 F.2D, AT 1029. 

/15/ SEE N. 40, INFRA. 

/16/ " IN THE CIRCUMSTANCES OF THIS CASE IT WOULD BE INAPPROPRIATE
TO TAX FEES AGAINST APPELLEE STATE OF ALASKA.  THE STATE VOLUNTARILY
PARTICIPATED IN THIS SUIT, IN EFFECT TO PRESENT TO THE COURT A
DIFFERENT VERSION OF THE PUBLIC INTEREST IMPLICATIONS OF THE TRANS
ALASKA PIPELINE.  TAXING ATTORNEYS' FEES AGAINST ALASKA WOULD IN OUR
VIEW UNDERMINE RATHER THAN FURTHER THE GOAL OF ENSURING ADEQUATE
SPOKESMEN FOR PUBLIC INTERESTS."  161 U.S. APP. D.C., AT 456 N. 8, 495
F.2D, AT 1036 N. 8. 

/17/ THE COURT OF APPEALS ALSO DIRECTED THAT "(THE FEE AWARD NEED
NOT BE LIMITED . . . TO THE AMOUNT ACTUALLY PAID OR OWED BY
(RESPONDENTS).  IT MAY WELL BE THAT COUNSEL SERVE ORGANIZATIONS LIKE
(RESPONDENTS) FOR COMPENSATION BELOW THAT OBTAINABLE IN THE MARKET
BECAUSE THEY BELIEVE THE ORGANIZATIONS FURTHER A PUBLIC INTEREST. 
LITIGATION OF THIS SORT SHOULD NOT HAVE TO RELY ON THE CHARITY OF
COUNSEL ANY MORE THAN IT SHOULD RELY ON THE CHARITY OF PARTIES
VOLUNTEERING TO SERVE AS PRIVATE ATTORNEYS GENERAL.  THE ATTORNEYS WHO
WORKED ON THIS CASE SHOULD BE REIMBURSED THE RESONABLE VALUE OF THEIR
SERVICES, DESPITE THE ABSENCE OF ANY OBLIGATION ON THE PART OF
(RESPONDENTS) TO PAY ATTORNEYS' FEES."  ID., AT 457, 495 F.2D, AT
1037. 

/18/ " AS EARLY AS 1278, THE COURTS OF ENGLAND WERE AUTHORIZED TO
AWARD COUNSEL FEES TO SUCCESSFUL PLAINTIFFS IN LITIGATION.  SIMILARLY,
SINCE 1607 ENGLISH COURTS HAVE BEEN EMPOWERED TO AWARD COUNSEL FEES TO
DEFENDANTS IN ALL ACTIONS WHERE SUCH AWARDS MIGHT BE MADE TO
PLAINTIFFS.  RULES GOVERNING ADMINISTRATION OF THESE AND RELATED
PROVISIONS HAVE DEVELOPED OVER THE YEARS.  IT IS NOW CUSTOMARY IN
ENGLAND, AFTER LITIGATION OF SUBSTANTIVE CLAIMS HAS TERMINATED, TO
CONDUCT SEPARATE HEARINGS BEFORE SPECIAL 'TAXING MASTERS' IN ORDER TO
DETERMINE THE APPROPRIATENESS AND THE SIZE OF AN AWARD OF COUNSEL
FEES.  TO PREVENT THE ANCILLARY PROCEEDINGS FROM BECOMING UNDULY
PROTRACTED AND BURDENSOME, FFES WHICH MAY BE INCLUDED IN AN AWARD ARE
USUALLY PRESCRIBED, EVEN INCLUDING THE AMOUNTS THAT MAY BE RECOVERED
FOR LETTERS DRAFTED ON BEHALF OF A CLIENT."  FLEISCHMANN DISTILLING
CORP. V. MAIER BREWING CO., 386 U.S. 714, 717 (1967) (FOOTNOTES
OMITTED).  SEE GENERALLY GOODHART, COSTS, 38 YALE L.J. 849 (1929); C.
MC CORMICK, LAW OF DAMAGES 234 - 236 (1935). 

/19/ THE FEDERAL JUDICIARY ACT OF SEPT. 24, 1789, 1 STAT. 73,
TOUCHED UPON COSTS IN SEC. 9, 11 - 12, 20 - 23, BUT AS TO COUNSEL FEES
PROVIDED SPECIFICALLY ONLY THAT THE UNITED STATES ATTORNEY IN EACH
DISTRICT "SHALL RECEIVE AS A COMPENSATION FOR HIS SERVICES SUCH FEES AS
SHALL BE TAXED THEREFOR IN THE RESPECTIVE COURTS BEFORE WHICH THE SUITS
OR PROSECUTIONS SHALL BE."  SEC.  35, FIVE DAYS LATER, HOWEVER,
CONGRESS ENACTED LEGISLATION REGULATING FEDERAL-COURT PROCESSES, WHICH
PROVIDED: 

" THAT UNTIL FURTHER PROVISION SHALL BE MADE, AND EXCEPT WHERE BY
THIS ACT OR OTHER STATUTES OF THE UNITED STATES IS OTHERWISE PROVIDED .
. . RATES OF FEES, EXCEPT FEES TO JUDGES, IN THE CIRCUIT AND DISTRICT
COURTS, IN SUITS AT COMMON LAW, SHALL BE THE SAME IN EACH STATE
RESPECTIVELY AS ARE NOW USED OR ALLOWED IN THE SUPREME COURTS OF THE
SAME.  AND . . . (IN CAUSES OF EQUITY AND OF ADMIRALTY AND MARITIME
JURISDICTION) THE RATES OF FEES (SHALL BE) THE SAME AS ARE OR WERE LAST
ALLOWED BY THE STATES RESPECTIVELY IN THE COURT EXERCISING SUPREME
JURISDICTION IN SUCH CAUSES."  ACT OF SEPT. 29, 1789, SEC. 2, 1 STAT.
93.  THAT LEGISLATION WAS TO BE IN EFFECT ONLY UNTIL THE END OF THE
NEXT CONGRESSIONAL SESSION, SEC. 3, BUT IT WAS EXTENDED TWICE.  SEE ACT
OF MAY 26, 1790, C. 13, 1 STAT. 123; ACT OF FEB. 18, 1791, C. 8, 1
STAT. 191.  IT WAS REPEALED, HOWEVER, BY LEGISLATION ENACTED ON MAY 8,
1792, SEC. 8, 1 STAT. 278. 

PRIOR TO THE TIME OF THAT REPEAL, OTHER LEGISLATION HAD BEEN PASSED
PROVIDING FOR ADDITIONAL COMPENSATION FOR UNITED STATES ATTORNEYS TO
COVER TRAVELING EXPENSES.  ACT OF MAR. 3, 1791, C. 22 SEC. 1, 1 STAT.
216.  THAT LEGISLATION WAS ALSO REPEALED BY THE ACT OF MAY 8, 1792,
SUPRA.  THE LATTER ENACTMENT SUBSTITUTED A NEW PROVISION FOR THE
COMPENSATION OF UNITED STATES ATTORNEYS; THEY WOULD BE ENTITLED TO
"SUCH FEES IN EACH STATE RESPECTIVELY AS ARE ALLOWED IN THE SUPREME
COURTS OF THE SAME . . ."  PLUS CERTAIN TRAVELING EXPENSES, SEC. 3, 1
STAT. 277.  THAT PROVISION WAS REPEALED ON FEBRUARY 28, 1799.  SEC. 9,
1 STAT. 626.  THAT SAME STATUTE PROVIDED NEW, SPECIFIC RATES OF
COMPENSATION FOR UNITED STATES ATTORNEYS.  SEE SEC. 4.  SEE ALSO SEC.
5. 

ON MARCH 1, 1793, CONGRESS ENACTED A GENERAL PROVISION GOVERNING THE
AWARDING OF COSTS TO PREVAILING PARTIES IN FEDERAL COURTS:  "THAT THERE
BE ALLOWED AND TAXED IN THE SUPREME, CIRCUIT AND DISTRICT COURTS OF THE
UNITED STATES, IN FAVOUR OF THE PARTIES OBTAINING JUDGMENTS THEREIN,
SUCH COMPENSATION FOR THEIR TRAVEL AND ATTENDANCE, AND FOR ATTORNIES
AND COUNSELLORS' FEES, EXCEPT IN THE DISTRICT COURTS IN CASES OF
ADMIRALTY AND MARITIME JURISDICTION, AS ARE ALLOWED IN THE SUPREME OR
SUPERIOR COURTS OF THE RESPECTIVE STATES."  SEC.  4, 1 STAT. 333.  THIS
PROVISION WAS TO BE IN FORCE FOR ONE YEAR AND THEN TO THE END OF THE
NEXT SESSION OF CONGRESS, SEC. 5, BUT IT WAS CONTINUED IN EFFECT IN
1795, ACT OF FEB. 25, 1795, C. 28, 1 STAT. 419, AND AGAIN IN 1796, ACT
OF MAR. 31, 1796, 1 STAT. 451, FOR A PERIOD OF TWO YEARS AND THEN UNTIL
THE END OF THE NEXT SESSION OF CONGRESS; AT THAT POINT, IT EXPIRED. 

AFTER 1799 AND UNTIL 1853, NO OTHER CONGRESSIONAL LEGISLATION DEALT
WITH THE AWARDING OF ATTORNEYS' FEES IN FEDERAL COURTS EXCEPT FOR THE
ACT OF 1842, N. 23, INFRA, WHICH GAVE THIS COURT AUTHORITY TO PRESRIBE
TAXABLE ATTORNEYS' FEES, AND FOR LEGISLATION DEALING WITH THE
COMPENSATION FOR UNITED STATES DISTRICT ATTORNEYS.  SEE THE ACT OF MAR.
3, 1841, 5 STAT. 427, AND THE ACT OF MAY 18, 1842, 5 STAT. 483.  SEE
THE SUMMARY OF THE LEGISLATION DEALING WITH COSTS THROUGHOUT THIS
PERIOD, IN S. LAW, THE JURISDICTION AND POWERS OF THE UNITED STATES
COURT 255 - 282 (1852). 

/20/ BY THE LEGISLATION OF SEPTEMBER 29, 1789, THE FEDERAL COURTS
WERE TO FOLLOW THE STATE PRACTICE WITH RESPECT TO RATES OF FEES UNDER
ADMIRALTY AND MARITIME JURISDICTION.  SEE N. 19, SUPRA.  THE ACT OF
MAR. 1, 1793, SEC. 1, 1 STAT. 332, ESTABLISHED SET FEES FOR ATTORNEYS
IN THE DISTRICT COURTS IN ADMIRALTY AND MARITIME PROCEEDINGS.  AS WITH
SEC. 4 OF THAT ACT, N. 19, SUPRA, THIS PROVISION HAD EXPIRED BY THE END
OF THE CENTURY.  SEE THE BALTIMORE, 8 WALL.  377, 390 - 392 (1869). 

/21/ THE CIRCUIT COURT HAD ALLOWED $1,600 IN COUNSEL FEES UNDER ITS
ESTIMATE OF DAMAGES AND $28.89 AS COSTS.  RECORD IN ARCAMBEL 56. 

/22/ SEE 2 T. STREET, FEDERAL EQUITY PRACTICE SEC. 1986, PP. 1188 -
1189 (1909); LAW, SUPRA, N. 19, AT 279; COSTS IN CIVIL CASES, 30 F.
CAS. 1058 (NO. 18,284) (CCSDNY 1852). 

/23/ " THAT, FOR THE PURPOSE OF FURTHER DIMINISHING THE COSTS AND
EXPENSES IN SUITS AND PROCEEDINGS IN THE SAID COURTS, THE SUPREME COURT
SHALL HAVE FULL POWER AND AUTHORITY, FROM TIME TO TIME, TO MAKE AND
PRESCRIBE REGULATIONS TO THE SAID DISTRICT AND CIRCUIT COURTS, AS TO
THE TAXATION AND PAYMENT OF COSTS IN ALL SUITS AND PROCEEDINGS THEREIN;
AND TO MAKE AND PRESCRIBE A TABLE OF THE VARIOUS ITEMS OF COSTS WHICH
SHALL BE TAXABLE AND ALLOWED IN ALL SUITS, TO THE PARTIES, THEIR
ATTORNEYS, SOLICITORS, AND PROCTORS, TO THE CLERK OF THE COURT, TO THE
MARSHAL OF THE DISTRICT, AND HIS DEPUTIES, AND OTHER OFFICERS SERVING
PROCESS, TO WITNESSES, AND TO ALL OTHER PERSONS WHOSE SERVICES ARE
USUALLY TAXABLE IN BILLS OF COSTS.  AND THE ITEMS SO STATED IN THE SAID
TABLE, AND NONE OTHERS, SHALL BE TAXABLE OR ALLOWED IN BILLS OF COSTS;
AND THEY SHALL BE FIXED AS LOW AS THEY REASONABLY CAN BE, WITH A DUE
REGARD TO THE NATURE OF THE DUTIES AND SERVICES WHICH SHALL BE
PERFORMED BY THE VARIOUS OFFICERS AND PERSONS AFORESAID, AND SHALL IN
NO CASE EXCEED THE COSTS AND EXPENSES NOW AUTHORIZED, WHERE THE SAME
ARE PROVIDED FOR BY EXISTING LAWS."  ACT OF AUG. 23, 1842, SEC. 7, 5
STAT. 518. 

THE BRIEF LEGISLATIVE HISTORY OF THIS SECTION INDICATES THAT, AS ITS
OWN LANGUAGE STATES, ITS PURPOSE WAS TO REDUCE FEE-BILLS IN FEDERAL
COURTS.  CONG. GLOBE, 27TH CONG., 2D SESS., 723 (1842) (REMARKS OF SEN.
BERRIEN).  ONE OF ITS OPPONENTS, SENATOR BUCHANAN, SAID THE FOLLOWING:
" IF CONGRESS CONFORMS THE FEE-BILLS OF THE COURTS OVER WHICH IT HAS
CONTROL, TO THE FEE-BILLS OF THE STATE COURTS, THAT IS ALL THAT CAN BE
EXPECTED OF IT . . . . BUT THE GREAT AND MAIN OBJECTION WAS, ITS
TRANSFER OF THE LEGISLATIVE POWER OF CONGRESS TO THE SUPREME COURT." 
IBID. 

/24/ SEE THE REMARKS OF SENATOR BRADBURY, CONG. GLOBE APP., 32D
CONG., 2D SESS., 207 (1853): 

" THERE IS NOW NO UNIFORM RULE EITHER FOR COMPENSATING THE
MINISTERIAL OFFICERS OF THE COURTS, OR FOR THE REGULATION OF THE COSTS
IN ACTIONS BETWEEN PRIVATE SUITORS.  ONE SYSTEM PREVAILS IN ONE
DISTRICT, 

AND A TOTALLY DIFFERENT ONE IN ANOTHER; AND IN SOME CASES IT WOULD
BE DIFFICULT TO ASCERTAIN THAT ANY ATTENTION HAD BEEN PAID TO ANY LAW
WHATEVER DESIGNED TO REGULATE SUCH PROCEEDINGS . . . . IT WILL HENCE BE
SEEN THAT THE COMPENSATION OF THE OFFICERS, AND THE COSTS TAXED IN
CIVIL SUITS, IS MADE TO DEPEND IN A GREAT DEGREE ON THAT ALLOWED IN THE
STATE COURTS.  THERE ARE NO TWO STATES WHERE THE ALLOWANCE IS THE
SAME. 

" WHEN THIS SYSTEM WAS ADOPTED, IT HAD THE SEMBLANCE OF EQUALITY,
WHICH DOES NOT EXIST.  THERE WERE THEN BUT SIXTEEN STATES, IN ALL OF
WHICH THE LAWS PRESCRIBED CERTAIN TAXABLE COSTS TO ATTORNEYS FOR THE
PROSECUTION AND DEFENSE OF SUITS.  IN SEVERAL OF THE STATES WHICH HAVE
SINCE BEEN ADDED TO THE UNION, NO SUCH COST IS ALLOWED; AND IN OTHERS
THE AMOUNT IS INCONSIDERABLE.  AS THE STATE FEE BILLS ARE MADE SO FAR
THE RULE OF COMPENSATION IN THE FEDERAL COURTS, THE SENATE WILL
PERCEIVE THAT TOTALLY DIFFERENT SYSTEMS OF TAXATION PREVAIL IN THE
DIFFERENT DISTRICTS.  . . . IT IS NOT ONLY THE OFFICERS OF THE COURTS,
BUT THE SUITORS ALSO, THAT ARE AFFECTED BY BY THE PRESENT UNEQUAL,
EXTRAVAGANT, AND OFTEN OPPRESSIVE SYSTEM.              * * * * * 

" THE ABUSES THAT HAVE GROWN UP IN THE TAXATION OF ATTORNEYS' FEES
WHICH THE LOSING PARTY HAS BEEN COMPELLED TO PAY IN CIVIL SUITS, HAVE
BEEN A MATTER OF SERIOUS COMPLAINT.  THE PAPERS BEFORE THE COMMITTEE
SHOW THAT IN SOME CASES THOSE COSTS HAVE BEEN SWELLED TO AN AMOUNT
EXCEEDINGLY OPPRESSIVE TO SUITORS, AND ALTOGETHER DISPROPORTIONATE TO
THE MAGNITUDE AND IMPORTANCE OF THE CAUSES IN WHICH THEY ARE TAXED, OR
THE LABOR BESTOWED.  . . .

        * * * * * 

" IT IS TO CORRECT THE EVILS AND REMEDY THE DEFECTS OF THE PRESENT
SYSTEM, THE BILL HAS BEEN PREPARED AND PASSED BY THE HOUSE OF
REPRESENTATIVES.  IT ATTEMPTS TO SIMPLIFY THE TAXATION OF FEES, BY
PRESCRIBING A LIMITED NUMBER OF DEFINITE ITEMS TO BE ALLOWED.  . . ." 
SEE ALSO H. R. REP. NO. 50, 32D CONG., 1ST SESS. (1852); 2 STREET,
SUPRA, N. 22, SEC. 1987, P. 1189. 

/25/ " FEES OF ATTORNEYS, SOLICITORS, PROCTORS.  IN A TRIAL BEFORE A
JURY, IN CIVIL AND CRIMINAL CAUSES, OR BEFORE REFEREES, OR ON A FINAL
HEARING IN EQUITY OR ADMIRALTY, A DOCKET FEE OF TWENTY DOLLARS:
PROVIDED, THAT IN CASES IN ADMIRALTY AND MARITIME JURISDICTION, WHERE
THE LIBELLANT SHALL RECOVER LESS THAN FIFTY DOLLARS, THE DOCKET FEE OF
HIS PROCTOR SHALL BE BUT TEN DOLLARS. 

" IN CASES AT LAW, WHERE JUDGMENT IS RENDERED WITHOUT A JURY, TEN
DOLLARS, AND FIVE DOLLARS WHERE A CAUSE IS DISCONTINUED. 

" FOR SCIRE FACIAS AND OTHER PROCEEDINGS ON RECOGNIZANCES, FIVE
DOLLARS. 

" FOR EACH DEPOSITION TAKEN AND ADMITTED AS EVIDENCE IN THE CAUSE,
TWO DOLLARS AND FIFTY CENTS. 

" A COMPENSATION OF FIVE DOLLARS SHALL BE ALLOWED FOR THE SERVICES
RENDERED IN CASES REMOVED FROM A DISTRICT TO A CIRCUIT COURT BY WRIT OF
ERROR OR APPEAL.  . . ."  10 STAT. 161 - 162. 

/26/ THE FOLLOWING AND NO OTHER COMPENSATION SHALL BE TAXED AND
ALLOWED TO ATTORNEYS, SOLICITORS, AND PROCTORS IN THE COURTS OF THE
UNITED STATES, TO DISTRICT ATTORNEYS, CLERKS OF THE CIRCUIT AND
DISTRICT COURTS, MARSHALS, COMMISSIONERS, WITNESSES, JURORS, AND
PRINTERS IN THE SEVERAL STATES AND TERRITORIES, EXCEPT IN CASES
OTHERWISE EXPRESSLY PROVIDED BY LAW.  BUT NOTHING HEREIN SHALL BE
CONSTRUED TO PROHIBIT ATTORNEYS, SOLICITORS, AND PROCTORS FROM CHARGING
TO AND RECEIVING FROM THEIR CLIENTS, OTHER THAN THE GOVERNMENT, SUCH
REASONABLE COMPENSATION FOR THEIR SERVICES, IN ADDITION TO THE TAXABLE
COSTS, AS MAY BE IN ACCORDANCE WITH GENERAL USAGE IN THEIR RESPECTIVE
STATES, OR MAY BE AGREED UPON BETWEEN THE PARTIES."  REV. STAT. SEC.
823.  FOR THE SCHEDULE OF FEES, SEE SEC. 824.  THE SCHEDULE REMAINED
THE SAME AS THE ONE IN THE 1853 ACT, N. 25, SUPRA. 

/27/ REVISED STAT. SEC. 823 AND 824 WERE NOT REPEALED BY THE
JUDICIAL CODE OF 1911 AND HENCE WERE TO "REMAIN IN FORCE WITH THE SAME
EFFECT AND TO THE SAME EXTENT AS IF THIS ACT HAD NOT BEEN PASSED." 
SEC. 297, 36 STAT. 1169.  WHEN THE JUDICIAL CODE WAS INCLUDED UNDER
TITLE 28 OF THE UNITED STATES CODE IN 1926, THESE SECTIONS APPEARED AS
SEC. 571 AND 572 WITH BUT MINOR CHANGES IN WORDING, INCLUDING THE
DELETION FROM THE LATTER SECTION OF THE COMPENSATION FOR SERVICES
RENDERED IN A CASE WHICH WENT TO THE CIRCUIT COURT ON APPEAL OR WRIT OF
ERROR. 

/28/ " A JUDGE OR CLERK OF ANY COURT OF THE UNITED STATES MAY TAX AS
COSTS THE FOLLOWING:

* * * * * 

"(5) DOCKET FEES UNDER SECTION 1923 OF THIS TITLE."  28 U.S.C. SEC.
1920 (1946 ED., SUPP. II). 

/29/ (A) ATTORNEYS' AND PROCTOR'S DOCKET FEES IN COURTS OF THE
UNITED STATES MAY BE TAXED AS COSTS AS FOLLOWS: 

"$20 ON TRIAL OR FINAL HEARING IN CIVIL, CRIMINAL OR ADMIRALTY
CASES, EXCEPT THAT IN CASES OF ADMIARLTY AND MARITIME JURISDICTION
WHERE THE LIBELLANT RECOVERS LESS THAN $50 THE PROCTOR'S DOCKET FEE
SHALL BE $10; 

"$20 IN ADMIRALTY APPEALS INVOLVING NOT OVER $1,000; 

"$50 IN ADMIRALTY APPEALS INVOLVING NOT OVER $5,000; 

"$100 IN ADMIRALTY APPEALS INVOLVING MORE THAN $5,000; 

"$5 ON DISCONTINUANCE OF A CIVIL ACTION; 

"$5 ON MOTION FOR JUDGMENT AND OTHER PROCEEDINGS ON RECOGNIZANCES; 

"$2.50 FOR EACH DEPOSITION ADMITTED IN EVIDENCE."  28 U.S.C. SEC.
1923 (A) (1946 ED., SUPP. II). 

THE 1948 CODE DOES NOT CONTAIN THE LANGUAGE USED IN THE 1853 ACT AND
CARRIED ON FOR NEARLY 100 YEARS THAT THE FEES PRESCRIBED BY THE STATUTE
"AND NO OTHER COMPENSATION SHALL BE TAXED AND ALLOWED," BUT NOTHING IN
THE 1948 CODE INDICATES A CONGRESSIONAL INTENTION TO DEPART FROM THAT
RULE.  THE REVISER'S NOTE TO THE NEW SEC. 1923 STATES ONLY THAT THE
"(SECTION CONSOLIDATES SECTIONS 571, 572, AND 578 OF TITLE 28, U.S.C.,
1940 ED."  SECTION 571 WAS THE PROVISION LIMITING AWARDS TO THE FEES
PRESCRIBED BY SEC. 572.  SEE N. 27, SUPRA.  OUR CONCLUSION THAT THE
1948 CODE DID NOT CHANGE THE LONGSTANDING RULE LIMITING AWARDS OF
ATTORNEYS' FEES TO THE STATUTORILY PROVIDED AMOUNTS IS CONSISTENT WITH
OUR ESTABLISHED VIEW THAT "THE FUNCTION OF THE REVISERS OF THE 1948
CODE WAS GENERALLY LIMITED TO THAT OF CONSOLIDATION AND CODIFICATION. 
CONSEQUENTLY, A WELL-ESTABLISHED PRINCIPLE GOVERING THE INTERPRETATION
OF PROVISIONS ALTERED IN THE 1948 REVISION IS THAT 'NO CHANGE IS TO BE
PRESUMED UNLESS CLEARLY EXPRESSED.'"  TIDEWATER OIL CO. V. UNITED
STATES, 409 U.S. 151, 162 (1972) (FOOTNOTE OMITTED).  AS MR. JUSTICE
MARSHALL NOTED FOR THE COURT, ID., AT 162 N. 29, THE SENATE REPORT
COVERING THE NEW CODE OBSERVED THAT "GREAT CARE HAS BEEN EXERCISED TO
MAKE NO CHANGES IN THE EXISTING LAW WHICH WOULD NOT MEET WITH
SUBSTANTIALLY UNANIMOUS APPROVAL."  S. REP. NO. 1559, 80TH CONG., 2D
SESS., 2 (1948). 

THE REVISER'S NOTE TO SEC. 1920 EXPLAINS THE SHIFT FROM THE
MANDATORY "SHALL BE TAXED" TO THE DISCRETIONARY "MAY BE TAXED" AS MADE
"IN VIEW OF RULE 54(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE,
PROVIDING FOR ALLOWANCE OF COSTS TO THE PREVAILING PARTY AS OF COURSE
'UNLESS THE COURT OTHERWISE DIRECTS.'"  NOTE FOLLOWING 28 U.S.C. SEC.
1920 (1946 ED., SUPP. II). 

/30/ MR. JUSTICE BRADLEY, WRITING FOR THE COURT IN GREENOUGH, SAID
THE FOLLOWING OF THE 1853 ACT:

" THE FEE-BILL IS INTENDED TO REGULATE ONLY THOSE FEES AND COSTS
WHICH ARE STRICTLY CHARGEABLE AS BETWEEN PARTY AND PARTY, AND NOT TO
REGULATE THE FEES OF COUNSEL AND OTHER EXPENSES AND CHARGES AS BETWEEN
SOLICITOR AND CLIENT, NOR THE POWER OF A COURT OF EQUITY, IN CASES OF
ADMINISTRATION OF FUNDS UNDER ITS CONTROL, TO MAKE SUCH ALLOWANCE TO
THE PARTIES OUT OF THE FUND AS JUSTICE AND EQUITY MAY REQUIRE.  THE FEE
BILL ITSELF EXPRESSLY PROVIDES THAT IT SHALL NOT BE CONSTRUED TO
PROHIBIT ATTORNEYS, SOLICITORS, AND PROCTORS FROM CHARGING TO AND
RECEIVING FROM THEIR CLIENTS (OTHER THAN THE GOVERNMENT) SUCH
REASONABLE COMPENSATION FOR THEIR SERVICES, IN ADDITION TO THE TAXABLE
COSTS, AS MAY BE AGREED UPON BETWEEN THE PARTIES.  ACT OF FEB. 26,
1853, C. 80, 10 STAT. 161; REV. STAT., SECT.  823.  AND THE ACT
CONTAINS NOTHING WHICH CAN BE FAIRLY CONSTRUED TO DEPRIVE THE COURT OF
CHANCERY OF ITS LONG-ESTABLISHED CONTROL OVER THE COSTS AND CHARGES OF
THE LITIGATION, TO BE EXERCISED AS EQUITY AND JUSTICE MAY REQUIRE,
INCLUDING PROPER ALLOWANCES TO THOSE WHO HAVE INSTITUTED PROCEEDINGS
FOR THE BENEFIT OF A GENERAL FUND."  105 U.S., AT 535 - 536. 

SPRAGUE V. TICONIC NATIONAL BANK, 307 U.S. 161, 165 N. 2 (1939),
MIGHT BE READ AS SUGGESTING THAT THE COURT IN GREENOUGH SAID THAT A
FEDERAL COURT COULD TAX AGAINST THE LOSING PARTY "SOLICITOR AND CLIENT"
COSTS IN EXCESS OF THE AMOUNTS PRESCRIBED BY THE 1853 ACT.  BUT ANY
SUCH SUGGESTION IS WITHOUT SUPPORT EITHER IN THE OPINION IN GREENOUGH,
WHICH WAS LIMITED TO A COMMON-FUND RATIONALE, OR IN THE EXPRESS TERMS
OF THE STATUTE.  THOSE COSTS WERE SIMPLY LEFT UNREGULATED BY THE
FEDERAL STATUTE; IT DID NOT PERMIT TAXING THE "CLIENT-SOLICITOR" COSTS
AGAINST THE CLIENT'S ADVERSARY.  SEE THE BALTIMORE, 8 WALL.  377
(1869); FLANDERS V. TWEED, 15 WALL.  450 (1872); 1 R. FOSTER, FEDERAL
PRACTICE SEC. 328 - 330 (1901); A. CONKLING, THE ORGANIZATION,
JURISDICTION AND PRACTICE OF THE COURTS OF THE UNITED STATES 456 - 457
(5TH ED. 1870); A. BOYCE, A MANUAL OF THE PRACTICE IN THE CIRCUIT
COURTS 72 (1869).  CF. UNITED STATES V. ONE PACKAGE OF READY-MADE
CLOTHING, 27 F. CAS. 310, 312 (NO. 15,950) (SDNY 1853).  MR. JUSTICE
MARSHALL'S RELIANCE UPON SPRAGUE FOR THE PROPOSITION THAT "CLIENT
SOLICITOR" COSTS COULD BE TAXED AGAINST THE CLIENT'S OPPONENT, SEE
POST, AT 278 - 279, IS THUS MISPLACED AND CONFLICTS WITH ANY FAIR
READING OF GREENOUGH, SUPRA, AND THE 1853 ACT. 

/31/ A VERY DIFFERENT SITUATION IS PRESENTED WHEN A FEDERAL COURT
SITS IN A DIVERSITY CASE.  "(IN AN ORDINARY DIVERSITY CASE WHERE THE
STATE LAW DOES NOT RUN COUNTER TO A VALID FEDERAL STATUTE OR RULE OF
COURT, AND USUALLY IT WILL NOT, STATE LAW DENYING THE RIGHT TO
ATTORNEY'S FEES OR GIVING A RIGHT THERETO, WHICH REFLECTS A SUBSTANTIAL
POLICY OF THE STATE, SHOULD BE FOLLOWED."  6 J. MOORE, FEDERAL PRACTICE
54.77 (2), PP. 1712 - 1713 (2D ED. 1974) (FOOTNOTES OMITTED).  SEE ALSO
2 S. SPEISER, ATTORNEYS' FEES SEC. 14:3, 14:4 (1973) (HEREINAFTER
SPEISER); ANNOTATION, PREVAILING PARTY'S RIGHT TO RECOVER COUNSEL FEES
IN FEDERAL COURTS, 8 L. ED. 2D 894, 900 - 901.  PRIOR TO THE DECISION
IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64 (1938), THIS COURT HELD THAT A
STATE STATUTE REQUIRING AN AWARD OF ATTORNEYS' FEES SHOULD BE APPLIED
IN A CASE REMOVED FROM THE STATE COURTS TO THE FEDERAL COURTS:  "(IT IS
CLEAR THAT IT IS THE POLICY OF THE STATE TO ALLOW PLAINTIFFS TO RECOVER
AN ATTORNEY'S FEE IN CERTAIN CASES, AND IT HAS MADE THAT POLICY
EFFECTIVE BY MAKING THE ALLOWANCE OF THE FEE MANDATORY ON ITS COURTS IN
THOSE CASES.  IN WOULD BE AT LEAST ANOMALOUS IF THIS POLICY COULD BE
THWARTED AND THE RIGHT SO PLAINLY GIVEN DESTROYED BY REMOVAL OF THE
CAUSE TO THE FEDERAL COURTS."  PEOPLE OF SIOUX COUNTY V. NATIONAL
SURETY CO., 276 U.S. 238, 243 (1928).  THE LIMITATIONS ON THE AWARDS OF
ATTORNEYS' FEES BY FEDERAL COURTS DERIVING FROM THE 1853 ACT WERE FOUND
NOT TO BAR THE AWARD.  ID., AT 243 - 244.  WE SEE NOTHING AFTER ERIE
REQUIRING A DEPARTURE FROM THIS RESULT.  SEE HANNA V. PLUMER, 380 U.S.
460, 467 - 468 (1965).  THE SAME WOULD CLEARLY HOLD FOR A JUDICIALLY
CREATED RULE, ALTHOUGH THE QUESTION OF THE PROPER RULE TO GOVERN IN
AWARDING ATTORNEYS' FEES IN FEDERAL DIVERSITY CASES IN THE ABSENCE OF
STATE STATUTORY AUTHORIZATION LOSES MUCH OF ITS PRACTICAL SIGNIFICANCE
IN LIGHT OF THE FACT THAT MOST STATES FOLLOW THE RESTRICTIVE AMERICAN
RULE.  SEE 1 SPEISER SEC. 12:3, 12:4. 

/32/ SEE NN. 26 - 29, SUPRA. 

/33/ SEE AMENDEMENTS TO FREEDOM OF INFORMATION ACT, PUB. L. 93 -
502, SEC. 1(B)(2), 88 STAT. 1561 (AMENDING 5 U.S.C. SEC. 552(A));
PACKERS AND STOCKYARDS ACT, 42 STAT. 166, 7 U.S.C. SEC. 201(F);
PERISHABLE AGRICULTURAL COMMODITIES ACT, 46 STAT. 535, 7 U.S.C. SEC.
499GB); BANKRUPTCY ACT, 11 U.S.C. SEC. 104(A)(1), 641 - 644; CLAYTON
ACT, SEC. 4, 38 STAT. 731, 15 U.S.C. SEC. 15; UNFAIR COMPETITION ACT,
39 STAT. 798, 15 U.S.C. SEC. 72; SECURITIES ACT OF 1933, 48 STAT. 82,
AS AMENDED, 48 STAT. 907, 15 U.S.C. SEC. 77KE); TRUST INDENTURE ACT, 53
STAT. 1176, 15 U.S.C. SEC. 77WWWA); SECURITIES EXCHANGE ACT OF 1934, 48
STAT. 890, 897, AS AMENDED, 15 U.S.C. SEC. 78IE), 78RA); TRUTH IN
LENDING ACT, 82 STAT. 157, 15 U.S.C. SEC. 1640(A); MOTOR VEHICLE
INFORMATION AND COST SAVINGS ACT, TIT. IV, SEC. 409(A)(2), 86 STAT.
963, 15 U.S.C. SEC. 1989(A)(2) (1970 ED., SUPP. II); 17 U.S.C. SEC. 116
(COPYRIGHTS); ORGANIZED CRIME CONTROL ACT OF 1970, 18 U.S.C. SEC.
1964(C); EDUCATION AMENDMENTS OF 1972, SEC. 718, 86 STAT. 369, 20
U.S.C. SEC. 1617 (1970 ED., SUPP. II); NORRIS-LA GUARDIA ACT, SEC.
7(E), 47 STAT. 71, 29 U.S.C. SEC. 107(E); FAIR LABOR STANDARDS ACT,
SEC. 16(B), 52 STAT. 1259, 33 U.S.C. SEC. 928 (1970 ED., SUPP. II);
FEDERAL WATER POLLUTION CONTROL ACT, SEC. 505(D), AS ADDED, 86 STAT.
888, 33 U.S.C. SEC. 1365(D) (1970 ED., SUPP. II); MARINE PROTECTION,
RESEARCH, AND SANCTUARIES ACT OF 1972, SEC. 105(G)(4), 33 U.S.C. SEC.
1415(G)(4) (1970 ED., SUPP. II); 35 U.S.C. SEC. 285 (PATENT
INFRINGEMENT); SERVICEMEN'S READJUSTMENT ACT, 38 U.S.C. SEC. 1822(B);
CLEAN AIR ACT, SEC. 304(D), AS ADDED, 84 STAT. 1706, 42 U.S.C. SEC.
1857H-2(D); CIVIL RIGHTS ACT OF 1964, TIT. II, SEC. 204(B), 78 STAT.
244, 42 U.S.C. SEC. 2000A-3(B), AND TIT. VII, SEC. 706(K), 78 STAT.
261, 42 U.S.C. SEC. 2000E-5(K); FAIR HOUSING ACT OF 1968, SEC. 812(C),
82 STAT. 88, 42 U.S.C. SEC. 3612 (C); NOISE CONTROL ACT OF 1972, SEC.
12(D), 86 STAT. 1244, 42 U.S.C. SEC. 4911(D) (1970 ED., SUPP. II);
RAILWAY LABOR ACT, SEC. 3, 44 STAT. 578, AS AMENDED, 48 STAT. 1192, AS
AMENDED, 45 U.S.C. SEC. 153(P); THE MERCHANT MARINE ACT OF 1936, SEC.
810, 49 STAT. 2015, 46 U.S.C. SEC. 1227; COMMUNICATIONS ACT OF 1934,
SEC. 206, 48 STAT. 1072, 47 U.S.C. SEC. 206; INTERSTATE COMMERCE ACT,
SEC. 8, 16 (2), 24 STAT. 382, 384, 49 U.S.C. SEC. 8, 16 (2), AND SEC.
308(B), AS ADDED, 54 STAT. 940, AS AMENDED, 49 U.S.C. SEC. 908(B); FED.
RULES CIV. PROC. 37(A) AND (C).  SEE GENERALLY 1 SPEISER SEC. 12:61 -
12;71; ANNOTATION, SUPRA, N. 31, AT 922 - 942. 

/34/ " ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY
BY REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR
. . . AND SHALL RECOVER THREEFOLD THE DAMAGES BY HIM SUSTAINED, AND THE
COST OF SUIT, INCLUDING A REASONABLE ATTORNEY'S FEE."  15 U.S.C. SEC.
15 (EMPHASIS ADDED). 

OTHER STATUTES WHICH ARE MANDATORY IN TERMS OF AWARDING ATTORNEYS'
FEES INCLUDE THE FAIR LABOR STANDARDS ACT, 29 U.S.C. SEC. 216(B); THE
TRUTH IN LENDING ACT, 15 U.S.C. SEC. 1640(A); AND THE MERCHANT MARINE
ACT OF 1936, 46 U.S.C. SEC. 1227.     /35/ IN ANY ACTION COMMENCED
PURSUANT TO THIS SUBCHAPTER, THE COURT, IN ITS DISCRETION, MAY ALLOW
THE PREVAILING PARTY, OTHER THAN THE UNITED STATES, A REASONABLE
ATTORNEY'S FEE AS PART OF THE COSTS, AND THE UNITED STATES SHALL BE
LIABLE FOR COSTS THE SAME AS A PRIVATE PERSON." 

OTHER STATUTORY EXAMPLES OF DISCRETION IN AWARDING ATTORNEYS' FEES
ARE THE SECURITIES ACT OF 1933, 15 U.S.C. SEC. 77KE); THE TRUST
INDENTURE ACT, 15 U.S.C. SEC. 77WWWA); THE SECURITIES EXCHANGE ACT OF
1934, 15 U.S.C. SEC. 78IE), 78RA); THE CIVIL RIGHTS ACT OF 1964, TIT.
VII, 42 U.S.C. SEC. 2000E-5(K); THE CLEAN AIR ACT, 42 U.S.C. SEC. 1857H
2(D); THE NOISE CONTROL ACT OF 1972, 42 U.S.C. SEC. 4911(D); (1970 ED.,
SUPP. II). 

/36/ QUITE APART FROM THE SPECIFIC AUTHORIZATIONS OF FEE SHIFTING IN
PARTICULAR STATUTES, CONGRESS HAS RECENTLY CONFRONTED THE QUESTION OF
THE GENERAL AVAILABILITY OF LEGAL SERVICES TO PERSONS ECONOMICALLY
UNABLE TO RETAIN A PRIVATE ATTORNEY.  SEE THE LEGAL SERVICES
CORPORATION ACT OF 1974, PUB. L. 93 - 355, 88 STAT. 378, 42 U.S. C.A.
SEC. 2996 ET SEQ. (SUPP. 1975).  SECTION 1006(F), 42 U.S. C.A. SEC.
2996EF) (SUPP. 1975), ADDRESSES ONE TYPE OF FEE SHIFTING:  " IF AN
ACTION IS COMMENCED BY THE CORPORATION OR BY A RECIPIENT AND A FINAL
ORDER IS ENTERED IN FAVOR OF THE DEFENDANT AND AGAINST THE CORPORATION
OR A RECIPIENT'S PLAINTIFF, THE COURT MAY, UPON MOTION BY THE DEFENDANT
AND UPON A FINDING BY THE COURT THAT THE ACTION WAS COMMENCED OR
PURSUED FOR THE SOLE PURPOSE OF HARASSMENT OF THE DEFENDANT OR THAT THE
CORPORATION OR A RECIPIENT'S PLAINTIFF MALICIOUSLY ABUSED LEGAL
PROCESS, ENTER AN ORDER (WHICH SHALL BE APPEALABLE BEFORE BEING MADE
FINAL) AWARDING REASONABLE COSTS AND LEGAL FEES INCURRED BY THE
DEFENDANT IN DEFENSE OF THE ACTION, EXCEPT WHEN IN CONTRAVENTION OF A
STATE LAW, A RULE OF COURT, OR A STATUTE OF GENERAL APPLICABILITY.  ANY
SUCH COSTS AND FEES SHALL BE DIRECTLY PAID BY THE CORPORATION."  ON THE
OTHER HAND, REMARKS MADE DURING THE DEBATES ON THIS LEGISLATION
INDICATE THAT THERE WAS NO INTENT TO RESTRICT THE PLAINTIFF'S RECOVERY
OF ATTORNEYS' FEES IN ACTIONS COMMENCED BY THE CORPORATION OR ITS
RECIPIENT WHERE UNDER THE CIRCUMSTANCES OTHER PLAINTIFFS WOULD BE
AWARDED SUCH FEES.  120 CONG. REC. H3956 (MAY 16, 1974) (REP. MEEDS);
ID., AT H3963 (REP. STEIGER); ID., AT S12934 (JULY 18, 1974) (SEN.
CRANSTON); ID., AT S12950 (SEN. MONDALE); ID., AT S12953 (SEN.
KENNEDY).  THUS, IF OTHER PLAINTIFFS MIGHT RECOVER ON THE PRIVATE
ATTORNEY-GENERAL THEORY, SO MIGHT THE CORPORATION.  CONGRESS ITSELF, OF
COURSE, HAS PROVIDED FOR COUNSEL FEES UNDER VARIOUS STATUTES ON A
PRIVATE-ATTORNEY-GENERAL BASIS; AND WE FIND NOTHING IN THESE REMARKS
INDICATING ANY CONGRESSIONAL APPROVAL OF JUDICIALLY CREATED PRIVATE
ATTORNEY-GENERAL FEE AWARDS. 

/37/ CONGRESS IN ITS SPECIFIC STATUTORY AUTHORIZATIONS OF FEE
SHIFTING HAS IN SOME INSTANCES PROVIDED THAT EITHER PARTY COULD BE
GIVEN SUCH AN AWARD DEPENDING UPON THE OUTCOME OF THE LITIGATION AND
THE COURT'S DISCRETION, SEE, E.G., 35 U.S.C. SEC. 285 (PATENT
INFRINGEMENT); CIVIL RIGHTS ACT OF 1964, 42 U.S.C. SEC. 2000A-3(B),
2000E-5(K), WHILE IN OTHERS IT HAS SPECIFIED THAT ONLY ONE OF THE
LITIGANTS CAN BE AWARDED FEES.  SEE, E.G., THE ANTITRUST LAWS, 15
U.S.C. SEC. 15; FAIR LABOR STANDARDS ACT, 29 U.S.C. SEC. 216(B). 

/38/ CONGRESS HAS SPECIFICALLY PROVIDED IN THE STATUTES ALLOWING
AWARDS OF FEES WHETHER SUCH AWARDS ARE MANDATORY UNDER PARTICULAR
CONDITIONS OR WHETHER THE COURT'S DISCRETION GOVERNS.  SEE NN. 34 AND
35, SUPRA. 

/39/ MR. JUSTICE MARSHALL, POST, AT 284 - 285, AFTER CONCLUDING THAT
THE FEDERAL COURTS HAVE EQUITABLE POWER WHICH CAN BE USED TO CREATE AND
IMPLEMENT A PRIVATE-ATTORNEY-GENERAL RULE, ATTEMPTS TO SOLVE THE
PROBLEMS OF MANAGEABILITY WHICH SUCH A RULE WOULD NECESSARILY RAISE. 
TO DO SO, HOWEVER, HE EMASCULATES THE THEORY.  INSTEAD OF A
STRAIGHTFORWARD AWARD OF ATTORNEYS' FEES TO THE WINNING PLAINTIFF WHO
UNDERTAKES TO ENFORCE STATUTES EMBODYING IMPORTANT PUBLIC POLICIES, AS
THE COURT OF APPEALS PROPOSED, MR. JUSTICE MARSHALL WOUDL TAX
ATTORNEYS' FEES IN FAVOR OF THE PRIVATE ATTORNEY GENERAL ONLY WHEN THE
AWARD COULD BE SAID TO IMPOSE THE BURDEN ON THOSE WHO BENEFIT FROM THE
ENFORCEMENT OF THE LAW.  THE THEORY THAT HE WOULD ADOPT IS NOT THE
PRIVATE-ATTORNEY-GENERAL RULE, BUT RATHER AN ECPANDED VERSION OF THE
COMMON-FUND APPROACH TO THE AWARDING OF ATTORNEYS' FEES.  WHEN CONGRESS
HAS PROVIDED FOR ALLOWANCE OF ATTORNEYS' FEES FOR THE PRIVATE ATTORNEY
GENERAL, IT HAS IMPOSED NO SUCH COMMON-FUND CONDITIONS UPON THE AWARD. 
THE DISSENTING OPINION NOT ONLY ERRS IN FINDING AUTHORITY IN THE COURTS
TO AWARD ATTORNEYS' FEES, WITHOUT LEGISLATIVE GUIDANCE, TO THOSE
PLAINTIFFS THE COURTS ARE WILLING TO RECOGNIZE AS PRIVATE ATTORNEYS
GENERAL, BUT ALSO DISSERVES THAT BASIS FOR FEE SHIFTING BY IMPOSING A
LIMITING CONDITION CHARACTERISTIC OF OTHER JUSTIFICATIONS. 

THAT CONDITION ILL SUITS LITIGATION IN WHICH THE PURPORTED BENEFITS
ACCRUE TO THE GENERAL PUBLIC.  IN THIS COURT'S COMMON-FUND AND COMMON
BENEFIT DECISIONS, THE CLASSES OF BENEFICIARIES WERE SMALL IN NUMBER
AND EASILY IDENTIFIABLE.  THE BENEFITS COULD BE TRACED WITH SOME
ACCURACY, AND THERE WAS REASON FOR CONFIDENCE THAT THE COSTS COULD
INDEED BE SHIFTED WITH SOME EXACTITUDE TO THOSE BENEFTING.  IN THIS
CASE, HOWEVER, SOPHISTICATED ECONOMIC ANALYSIS WOULD BE REQUIRED TO
GAUGE THE EXTENT TO WHICH THE GENERAL PUBLIC, THE SUPPOSED BENEFICIARY,
AS DISTINGUISHED FROM SELECTED ELEMENTS OF IT, WOULD BEAR THE COSTS. 
THE COURT OF APPEALS, VERY FAMILIAR WITH THE LITIGATION AND THE PARTIES
AFTER DEALING WITH THE MERITS OF THE SUIT, CONCLUDED THAT "IMPOSING
ATTORNEYS' FEES ON ALYESKA WILL NOT OPERATE TO SPREAD THE COSTS OF
LITIGATION PROPORTIONATELY AMONG THESE BENEFICIARIES . . . ."  161 U.S.
APP. D.C., AT 449, 495 F.2D, AT 1029.  MR. JUSTICE MARSHALL WOULD
APPARENTLY HOLD THAT FACTUAL ASSESSMENT CLEARLY WRONG.  SEE POST, AT
288. 

IF ONE ACCEPTS, AS MR. JUSTICE MARSHALL APPEARS TO DO, THE
LIMITATIONS OF 28 U.S.C. SEC. 2412, WHICH IN THE ABSENCE OF AUTHORITY
UNDER OTHER STATUTES FORBIDS AN AWARD OF ATTORNEYS' FEES AGAINST THE
UNITED STATES OR ANY AGENCY OR OFFICIAL OF THE UNITED STATES, SEE NN.
40 AND 42, INFRA, IT BECOMES EXTREMELY DIFFICULT TO PREDICT WHEN HIS
VERSION OF THE PRIVATE-ATTORNEY-GENERAL BASIS FOR ALLOWING FEES WOULD
PRODUCE AN AWARD AGAINST A PRIVATE PARTY IN LIGITATION INVOLVING THE
ENFORCEMENT OF A FEDERAL STATUTE SUCH AS THAT INVOLVED IN THIS CASE-
ALL IN CONTRAST TO THE TYPICAL RESULT UNDER THOSE FEDERAL STATUTES
WHICH THEMSELVES PROVIDE FOR PRIVATE ACTIONS AND FOR AN AWARD OF
ATTORNEYS' FEES TO THE SUCCESSFUL PRIVATE PLAINTIFF AS, FOR EXAMPLE,
UNDER THE ANTITRUST LAWS.  THERE REMAINS THE PRIVATE PLAINTIFF WHOSE
SUIT TO ENFORCE FEDERAL OR STATE LAW IS PRESSED AGAINST DEFENDANTS WHO
INCLUDE THE STATE OR ONE OR MORE OF ITS AGENCIES OR OFFICERS AS, FOR
INSTANCE, THE TYPICAL SUIT UNDER 42 U.S.C. SEC. 1983.  EVEN HERE
ELEVENTH AMENDMENT HURDLES MUST BE OVERCOME, SEE N. 44, INFRA, AND IF
THEY ARE NOT, THERE MAY BE FEW REMAINING DEFENDANTS WHO WOULD SATISFY
THE DISSENTING OPINION'S DESCRIPTION OF THE LITIGANT WHO MAY BE SADDLED
WITH HIS OPPONENT'S ATTORNEYS' FEES. 

WE ADD THAT IN THE THREE-PART TEST SUGGESTED BY MR. JUSTICE
MARSHALL, POST, AT 284 - 285, FOR ADMINISTERING A JUDICIALLY CREATED
PRIVATE-ATTORNEY-GENERAL RULE, THE ONLY CRITERION WHICH PURPORTS TO
ENABLE A COURT TO DETERMINE WHICH STATUTES SHOULD BE ENFORCED BY
APPLICATION OF THE RULE IS THE FIRST:  "THE IMPORTANT RIGHT BEING
PROTECTED IS ONE ACTUALLY OR NECESSARILY SHARED BY THE GENERAL PUBLIC
OR SOME CLASS THEREOF.  . . ."  ABSENT SOME JUDICIALLY MANAGEABLE
STANDARD FOR GAUGING "IMPORTANCE," THAT CRITERION WOULD APPLY TO ALL
SUBSTANTIVE CONGRESSIONAL LEGISLATION PROVIDING FOR RIGHTS AND DUTIES
GENERALLY APPLICABLE, THAT IS, TO VIRTUALLY ALL CONGRESSIONAL OUTPUT. 
THAT RESULT WOULD SOLVE THE PROBLEM OF COURTS SELECTIVELY APPLYING THE
RULE IN ACCORDANCE WITH THEIR OWN PARTICULAR SUBSTANTIVE-LAW
PREFERENCES AND PRIORITIES, BUT ITS BREADTH REQUIRES MORE JUSTIFICATION
THAN MR. JUSTICE MARSHALL PROVIDES BY CITING THIS COURT'S COMMON-FUND
AND COMMON-BENEFIT CASES. 

MR. JUSTICE MARSHALL'S APPLICATION OF HIS SUGGESTED RULE TO THIS
CASE, HOWEVER, DEMONSTRATES THE PROBLEMS RAISED BY COURTS GENERALLY
ASSAYING THE PUBLIC BENEFITS WHICH PARTICULAR LITIGATION HAS PRODUCED. 
THE CONCLUSION OF THE DISSENTING OPINION IS THAT "(THERE IS HARDLY ROOM
FOR DOUBT" THAT RESPONDENTS' LITIGATION HAS PROTECTED AN "IMPORTANT
RIGHT . . . ACTUALLY OR NECESSARILY SHARED BY THE GENERAL PUBLIC OR
SOME CLASS THEREOF . . . ."  POST, AT 285.  WHETHER THAT CONCLUSION IS
CORRECT OR NOT, IT WOULD APPEAR AT THE VERY LEAST THAT, AS IN ANY
INSTANCE OF CONFLICTING PUBLIC-POLICY VIEWS, THERE IS ROOM FOR DOUBT ON
EACH SIDE.  THE OPINIONS BELOW ARE EVIDENCE OF THAT FACT.  SEE 161 U.S.
APP. D.C., AT 452 - 456, 495 F.2D, AT 1032 - 1036 (MAJORITY OPINION);
ID., AT 459 - 461, 495 F.2D, AT 1039 - 1041 (MAC KINNON, J.,
DISSENTING); ID., AT 462 - 464, 495 F.2D, AT 1042 - 1044 (WILKEY, J.,
DISSENTING).  IT IS THAT UNAVOIDABLE DOUBT WHICH CALLS FOR SPECIFIC
AUTHORITY FROM CONGRESS BEFORE COURTS APPLY A PRIVATE-ATTORNEY-GENERAL
RULE IN AWARDING ATTORNEYS' FEES. 

/40/ " EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY STATUTE, A
JUDGMENT FOR COSTS, AS ENUMERATED IN SECTION 1920 OF THIS TITLE BUT NOT
INCLUDING THE FEES AND EXPENSES OF ATTORNEYS MAY BE AWARDED TO THE
PREVAILING PARTY IN ANY CIVIL ACTION BROUGHT BY OR AGAINST THE UNITED
STATES OR ANY AGENCY OR OFFICIAL OF THE UNITED STATES ACTING IN HIS
OFFICIAL CAPACITY, IN ANY COURT HAVING JURISDICTION OF SUCH ACTION.  A
JUDGMENT FOR COSTS WHEN TAXED AGAINST THE GOVERNMENT SHALL, IN AN
AMOUNT ESTABLISHED BY STATUTE OR COURT RULE OR ORDER, BE LIMITED TO
REIMBURSING IN WHOLE OR IN PART THE PREVAILING PARTY FOR THE COSTS
INCURRED BY HIM IN THE LITIGATION.  PAYMENT OF A JUDGMENT FOR COSTS
SHALL BE AS PROVIDED IN SECTION 2414 AND SECTION 2517 OF THIS TITLE FOR
THE PAYMENT OF JUDGMENTS AGAINST THE UNITED STATES." 

/41/ SEE SUPRA, AT 246. 

/42/ THE ACT OF MAR. 3, 1887, WHICH PROVIDED FOR THE BRINGING OF
SUITS AGAINST THE UNITED STATES, COVERED THE AWARDING OF COSTS AGAINST
THE GOVERNMENT IN THE FOLLOWING SECTION:  " IF THE GOVERNMENT OF THE
UNITED STATES SHALL PUT IN ISSUE THE RIGHTS OF THE PLAINTIFF TO RECOVER
THE COURT MAY, IN ITS DISCRETION, ALLOW COSTS TO THE PREVAILING PARTY
FROM THE TIME OF JOINING SUCH ISSUE.  SUCH COSTS, HOWEVER, SHALL
INCLUDE ONLY WHAT IS ACTUALLY INCURRED FOR WITNESSES, AND FOR SUMMONING
THE SAME, AND FEES PAID TO THE CLERK OF THE COURT."  SEC.  15, 24 STAT.
508. 

THE SAME SECTION WAS INCLUDED IN THE JUDICIAL CODE OF 1911.  SEC.
152, 36 STAT. 1138.  IN 1946, THE FEDERAL TORT CLAIMS ACT PROVIDED:  "
COSTS SHALL BE ALLOWED IN ALL COURTS TO THE SUCCESFUL CLAIMANT TO THE
SAME EXTENT AS IF THE UNITED STATES WERE A PRIVATE LITIGANT, EXCEPT
THAT SUCH COSTS SHALL NOT INCLUDE ATTORNEYS' FEES."  SEC. 410(A), 60
STAT. 844.  THE 1948 CODE PROVIDED IN 28 U.S.C. SEC. 2412(A) (1946 ED.,
SUPP. II) THAT "(THE UNITED STATES SHALL BE LIABLE FOR FEES AND COSTS
ONLY WHEN SUCH LIABILITY IS EXPRESSLY PROVIDED FOR BY ACT OF
CONGRESS."  THE REVISER OBSERVED THAT SEC. 2412(A) "IS NEW.  IT FOLLOWS
THE WELL-KNOWN COMMON-LAW RULE THAT A SOVEREIGN IS NOT LIABLE FOR COSTS
UNLESS SPECIFIC PROVISION FOR SUCH LIABILITY IS MADE BY LAW."  NOTING
THAT MANY STATUTES EXEMPT THE UNITED STATES FROM LIABILITY FOR FEES AND
COSTS, THE REVISER CONCLUDED THAT "(A) UNIFORM RULE, EMBODIED IN THIS
SEC. 2412 WAS AMENDED TO ITS PRESENT FORM.  80 STAT. 308.  THE SENATE
REPORT ON THE PROPOSED BILL STATED THAT "(THE COSTS REFERRED TO IN THE
1329, 89TH CONG., 2D SESS., 3 (1966).  SEE ALSO H. R. REP. NO. 1535,
89TH CONG., 2D SESS., 2, 3 (1966).  THE ATTORNEY GENERAL, IN
TRANSMITTING THE PROPOSAL FOR LEGISLATION WHICH LED TO THE AMENDMENT,
SAID THAT "(THE BILL MAKES IT CLEAR THAT THE FEES AND EXPENSES OF
ATTORNEYS . . . MAY NOT BE TAXED AGAINST THE UNITED STATES."  ID., AT
4.  SEE PYRAMID LAKE PAIUTE TRIBE OF INDIANS V. MORTON,____ U.S. APP.
D.C.____, 499 F.2D 1095 (1974), CERT. DENIED, 420 U.S. 962 (1975). 

WITHOUT DEPARTING FROM THIS PATTERN, THE FEDERAL TORT CLAIMS ACT OF
1946 IN ADDITION LIMITED THE FEES WHICH COURTS COULD ALLOW AND WHICH
ATTORNEYS COULD CHARGE THEIR CLIENTS AND PROVIDED THAT THE FEES WERE
"TO BE PAID OUT OF BUT NOT IN ADDITION TO THE AMOUNT OF JUDGMENT,
AWARD, OR SETTLEMENT RECOVERED, TO THE ATTORNEYS REPRESENTING THE
CLAIMANT."  SEC.  422, 60 STAT. 846.  SEE ALSO SEC. 410(A).  SECTION
422 WAS MAINTAINED IN THE 1948 CODE AS 28 U.S.C. SEC. 2678 (1946 ED.,
SUPP. II), AND THE PERCENTAGE LIMITATIONS WERE RAISED IN 1966 80 STAT.
307. 

/43/ SEE N. 35, SUPRA.  SEE ALSO AMENDMENTS TO FREEDOM OF
INFORMATION ACT, PUB. L. 93 - 502, SEC. 1(B)(2), 88 STAT. 1561
(AMENDING 5 U.S.C. SEC. 552(A)). 

/44/ ALTHOUGH AN AWARD AGAINST THE UNITED STATES IS FORECLOSED BY 28
U.S.C. SEC. 2412 IN THE ABSENCE OF OTHER STATUTORY AUTHORIZATION, AN
AWARD AGAINST A STATE GOVERNMENT WOULD RAISE A QUESTION WITH RESPECT TO
ITS PERMISSIBILITY UNDER THE ELEVENTH AMENDMENT, A QUESTION ON WHICH
THE LOWER COURTS ARE DIVIDED.  COMPARE SOUZA V. TRAVISONO, ____
F.2D____(CA 1 1975); CLASS V. NORTON, 505 F.2D 123 (CA 2 1974); JORDAN
V. FUSARI, 496 F.2D 646 (CA 2 1974); GATES V. COLLIER, 489 F.2D 298 (CA
5 1973), PETITION FOR REHEARING EN BANC GRANTED, 500 F.2D 1382 (CA 5
1974); BRANDENBURGER V. THOMPSON, 494 F.2D 885 (CA 9 1974); SIMS V.
AMOS, 340 F SUPP. 691 (MD ALA.), AFF'D SUMMARILY, 409 U.S. 942 (1972),
WITH JORDAN V. GILLIGAN, 500 F.2D 701 (CA 6 1974); TAYLOR V. PERINI,
503 F.2D 899 (CA 6 1974); NAMED INDIVIDUAL MEMBERS V. TEXAS HIGHWAY
DEPT., 496 F.2D 1017 (CA 5 1974); SKEHAN V. BOARD OF TRUSTEES OF
BLOOMSBURG STATE COLLEGE, 501 F.2D 31 (CA 3 1974).  IN THIS CASE, THIS
COURT OF APPEALS DID NOT RELY UPON THE ELEVENTH AMENDMENT IN DECLINING
TO AWARD FEES AGAINST ALASKA, SEE N. 16, SUPRA, AND THEREFORE WE HAVE
NO OCCASION TO ADDRESS THIS QUESTION.     /45/ SEE, E.G., MC LAUGHLIN,
THE RECOVERY OF ATTORNEY'S FEES:  A NEW METHOD OF FINANCING LEGAL
SERVICES, 40 FORD L. REV. 761 (1972); EHRENZWEIG, REIMBURSEMENT OF
COUNSEL FEES AND THE GREAT SOCIETY, 54 CALIF. L. REV. 792 (1966);
STOEBUCK, COUNSEL FEES INCLUDED IN COSTS:  A LOGICAL DEVELOPMENT, 38 U.
COLO. L. REV. 202 (1966); KUENZEL, THE ATTORNEY'S FEE:  WHY NOT A COST
OF LITIGATION?, 49 IOWA L. REV. 75 (1963); MC CORMICK, COUNSEL FEES AND
OTHER EXPENSES OF LITIGATION AS AN ELEMENT OF DAMAGES, 15 MINN. L. REV.
619 (1931); COMMENT, COURT AWARDED ATTORENY'S FEES AND EQUAL ACCESS TO
THE COURT, 122 U. PA. L. REV. 636, 648 - 655 (1974); NOTE, ATTORNEY'S
FEES:  WHERE SHALL THE ULTIMATE BURDEN LIE?, 20 VAND.  L. REV. 1216
(1967).  SEE ALSO 1 SPEISER SEC. 12.8; POSNER, AN ECONOMIC APPROACH TO
LEGAL PROCEDURE AND JUDICIAL ADMINISTRATION, 2 J. LEGAL STUDIES 399,
437 - 438 (1973). 

/46/ IN RECENT YEARS, SOME LOWER FEDERAL COURTS, ERRONEOUSLY, WE
THINK, HAVE EMPLOYED THE PRIVATE-ATTORNEY-GENERAL APPROACH TO AWARD
ATTORNEYS' FEES.  SEE, E.G., SOUZA V. TRAVISONO, SUPRA; HOITT V. VITEK,
495 F.2D 219 (CA 1 1974); KNIGHT V. AUCIELLO, 453 F.2D 852 (CA 1 1972);
CORNIST V. RICHLAND PARISH SCHOOL BOARD, 495 F.2D 189 (CA 5 1974);
FAIRLEY V. PATTERSON, 493 F.2D 598 (CA 5 1974); COOPER V. ALLEN, 467
F.2D 836 (CA 7 1972); LEE V. SOUTHERN HOME SITES CORP., 444 F.2D 143
(CA 5 1971); TAYLOR V. PERINI, SUPRA; MORALES V. HAINES, 486 F.2D 880
(CA 7 1973); DONAHUE V. STAUNTON, 471 F.2D 475 (CA 7 1972), CERT.
DENIED, 410 U.S. 955 (1973); FOWLER V. SCHWARZWALDER, 498 F.2D 143 (CA
8 1974); BRANDENBURGER V. THOMPSON, SUPRA; LA RAZA UNIDA V. VOLPE, 57
F. R. D. 94 (ND CLA.  1972).  THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT HAS REFUSED TO ADOPT THE PRIVATE-ATTORNEY-GENERAL RULE. 
BRADLEY V. SCHOOL BOARD OF THE CITY OF RICHMOND, 472 F.2D 318, 327 -
331 (1972), VACATED ON OTHER GROUNDS, 416 U.S. 696 (1974).  CF.
BRIDGEPORT GUARDIANS, INC. V. MEMBERS OF BRIDGEPORT CIVIL SERVICE
COMM'N, 497 F.2D 1113 (CA 2 1974). 

THIS COURT'S SUMMARY AFFIRMANCE OF THE DECISION IN SIMS V. AMOS,
SUPRA, CANNOT BE TAKEN AS AN ACCEPTANCE OF A JUDICIALLY CREATED PRIVATE
ATTORNEY-GENERAL RULE.  THE DISTRICT COURT IN SIMS INDICATED THAT THERE
WAS AN ALTERNATIVE GROUND AVAILABLE--THE BAD FAITH OF THE DEFENDANTS-
UPON WHICH TO BASE THE AWARD OF FEES.  340 F. SUPP., AT 694.  SEE ALSO
EDELMAN V. JORDAN, 415 U.S. 651, 670 - 671 (1974). 

/47/ THE SENATE SUBCOMMITTEE ON REPRESENTATION OF CITIZEN INTERESTS
HAS RECENTLY CONDUCTED HEARINGS ON THE GENERAL QUESTION OF COURT AWARDS
OF ATTORNEYS' FEES TO PREVAILING PARTIES IN LITIGATION AND ATTEMPTED
"TO ASCERTAIN WHETHER 'FEE-SHIFTING' AFFORDS REPRESENTATION TO
OTHERWISE UNREPRESENTED INTERESTS, WHETHER SOME RESTRICTION OR
ENCOURAGEMENT OF THE DEVELOPMENT IS NEEDED, AND WHAT PLACE, IF ANY,
THERE IS FOR LEGISLATION IN THIS AREA."  HEARINGS ON LEGAL FEES BEFORE
THE SUBCOMMITTEE ON REPRESENTATION OF CITIZEN INTERESTS OF THE SENATE
COMMITTEE ON THE JUDICIARY, 93D CONG., 1ST SESS., PT. III, P. 788
(1973) (SEN. TUNNEY).  AS MR. JUSTICE MARSHALL SAID FOR THE COURT IN
F.D. RICH CO., INC. V. UNITED STATES EX REL. INDUSTRIAL LUMBER CO., 417
U.S. 116 (1974), WITH RESPECT TO FEE SHIFTING UNDER THE MILLER ACT, 49
STAT. 793, AS AMENDED, 40 U.S.C. SEC. 270A ET SEQ., " CONGRESS IS AWARE
OF THE ISSUE."  417 U.S., AT 131 (FOOTNOTE OMITTED).  AS IN THAT CASE,
"ARGUMENTS FOR A FURTHER DEPARTURE FROM THE AMERICAN RULE . . . ARE
PROPERLY ADDRESSED TO CONGRESS."  IBID. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE POWELL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BRENNAN, DISSENTING. 

I AGREE WITH MR. JUSTICE MARSHALL THAT FEDERAL EQUITY COURTS HAVE
THE POWER TO AWARD ATTORNEYS' FEES ON A PRIVATE-ATTORNEY-GENERAL
RATIONALE.  MOREOVER, FOR THE REASONS STATED BY JUDGE WRIGHT IN THE
COURT OF APPEALS, I WOULD HOLD THAT THIS CASE WAS A PROPER ONE FOR THE
EXERCISE OF THAT POWER.  AS JUDGE WRIGHT CONCLUDED: 

" ACTING AS PRIVATE ATTORNEYS GENERAL, NOT ONLY HAVE (RESPONDENTS)
ENSURED THE PROPER FUNCTIONING OF OUR SYSTEM OF GOVERNMENT, BUT THEY
HAVE ADVANCED AND PROTECTED IN A VERY CONCRETE MANNER SUBSTANTIAL
PUBLIC INTERESTS.  AN AWARD OF FEES WOULD NOT HAVE UNJUSTLY DISCOURAGED
(PETITIONER) ALYESKA FROM DEFENDING ITS CASE IN COURT.  AND DENYING
FEES MIGHT WELL HAVE DETERRED (RESPONDENTS) FROM UNDERTAKING THE HEAVY
BURDEN OF THIS LITIGATION."  161 U.S. APP. D.C. 446, 456, 495 F.2D
1026, 1036. 

MR. JUSTICE MARSHALL, DISSENTING. 

IN REVERSING THE AWARD OF ATTORNEYS' FEES TO THE RESPONDENT
ENVIRONMENTALIST GROUPS, THE COURT TODAY DISAVOWS THE WELL-ESTABLISHED
POWER OF FEDERAL EQUITY COURTS TO AWARD ATTORNEYS' FEES WHEN THE
INTERESTS OF JUSTICE SO REQUIRE.  WHILE UNDER THE TRADITIONAL AMERICAN
RULE THE COURTS ORDINARILY REFRAIN FROM ALLOWING ATTORNEYS' FEES, WE
HAVE RECOGNIZED SEVERAL JUDICIAL EXCEPTIONS TO THAT RULE FOR CLASSES OF
CASES IN WHICH EQUITY SEEMED TO FAVOR FEE SHIFTING.  SEE SPRAGUE V.
TICONIC NATIONAL BANK, 307 U.S. 161 (1939); MILLS V. ELECTRIC AUTO-LITE
CO., 396 U.S. 375, 391 - 392 (1970); HALL V. COLE, 412 U.S. 1, 5, 9
(1973).  BY IMPOSING AN ABSOLUTE BAR ON THE USE OF THE "PRIVATE
ATTORNEY GENERAL" RATIONALE AS A BASIS FOR AWARDING ATTORNEYS'  FEES,
THE COURT TODAY TAKES AN EXTREMELY NARROW VIEW OF THE INDEPENDENT POWER
OF THE COURTS IN THIS AREA--A VIEW THAT FLIES SQUARELY IN THE FACE OF
OUR PRIOR CASES. 

THE COURT RELIES PRIMARILY ON THE DOCKETING-FEES-AND-COURT-COSTS
STATUTE, 28 U.S.C. SEC. 1923, IN CONCLUDING THAT THE AMERICAN RULE IS
GROUNDED IN STATUTE AND THAT THE COURTS MAY NOT AWARD COUNSEL FEES
UNLESS THEY DETERMINE THAT CONGRESS SO INTENDED.  THE VARIOUS
EXCEPTIONS TO THE RULE AGAINST FEE SHIFTING THAT THIS COURT HAS CREATED
IN THE PAST ARE EXPLAINED AS CONSTRUCTIONS OF THE FEE STATUTE.  ANTE,
AT 257.  IN ADDITION, THE COURT NOTES THAT CONGRESS HAS PROVIDED FOR
ATTORNEYS' FEES IN A NUMBER OF STATUTES, BUT MADE NO SUCH PROVISION IN
OTHERS.  IT CONCLUDES FROM THIS SELECTIVE TREATMENT THAT WHERE AWARD OF
ATTORNEYS' FEES IS NOT EXPRESSLY AUTHORIZED, THE COURTS SHOULD DENY
THEM AS A MATTER OF COURSE.  FINALLY, THE COURT SUGGESTS THAT THE
POLICY QUESTIONS BEARING ON WHETHER TO GRANT ATTORNEYS' FEES IN A
PARTICULAR CASE ARE NOT ONES THAT THE JUDICIARY IS WELL EQUIPPED TO
HANDLE, AND THAT FEE SHIFTING UNDER THE PRIVATE ATTORNEY GENERAL
RATIONALE WOULD QUICKLY DEGENERATE INTO AN ARBITRARY AND LAWLESS
PROCESS.  BECAUSE THE COURT CONCLUDES THAT GRANTING ATTORNEYS' FEES TO
PRIVATE ATTORNEYS GENERAL IS BEYOND THE EQUITABLE POWER OF THE FEDERAL
COURT, IT DOES NOT REACH THE QUESTION WHETHER AN AWARD WOULD BE PROPER
AGAINST ALYESKA IN THIS CASE UNDER THE PRIVATE ATTORNEY GENERAL
RATIONALE. 

ON MY VIEW OF THE CASE, BOTH QUESTIONS MUST BE ANSWERED.  I SEE NO
BASIS IN PRECEDENT OR POLICY FOR HOLDING THAT THE COURTS CANNOT AWARD
ATTORNEYS' FEES WHERE THE INTERESTS OF JUSTICE REQUIRE RECOVERY, SIMPLY
BECAUSE THE CLAIM DOES NOT FIT COMFORTABLY WITHIN ONE OF THE PREVIOUSLY
SANCTIONED JUDICIAL EXCEPTIONS TO THE AMERICAN RULE.  THE COURT HAS NOT
IN THE PAST REGARDED THE AWARD OF ATTORNEYS' FEES AS A MATTER RESERVED
FOR THE LEGISLATURE, AND IT HAS CERTAINLY NOT READ THE DOCKETING-FEES
STATUTE AS A GENERAL BAR TO JUDICIAL FEE SHIFTING.  THE COURT'S CONCERN
WITH THE DIFFICULTY OF APPLYING MEANINGFUL STANDARDS IN AWARDING
ATTORNEYS' FEES TO SUCCESSFUL "PUBLIC BENEFIT" LITIGANTS IS A
LEGITIMATE ONE, BUT IN MY VIEW IT OVERSTATES THE NOVELTY OF THE
"PRIVATE ATTORNEY GENERAL" THEORY.  THE GUIDELINES DEVELOPED IN CLOSELY
ANALOGOUS STATUTORY AND NONSTATUTORY ATTORNEYS' FEE CASES COULD READILY
BE APPLIED IN CASES SUCH AS THE ONE AT BAR.  I THEREFORE DISAGREE WITH
THE COURT'S FLAT REJECTION OF THE PRIVATE ATTORNEY GENERAL RATIONALE
FOR FEE SHIFTING.  MOROVER, IN MY VIEW THE EQUITIES IN THIS CASE
SUPPORT AN AWARD OF ATTORNEYS' FEES AGAINST ALYESKA.  ACCORDINGLY, I
MUST RESPECTFULLY DISSENT. 

        I

        A 

CONTRARY TO THE SUGGESTION IN THE COURT'S OPINION, OUR CASES
UNEQUIVOCALLY ESTABLISH THAT GRANTING OR WITHHOLDING ATTORNEYS' FEES IS
NOT STRICTLY A MATTER OF STATUTORY CONSTRUCTION, BUT HAS AN INDEPENDENT
BASIS IN THE EQUITABLE POWERS OF THE COURTS.  IN SPRAGUE V. TICONIC
NATIONAL BANK, SUPRA, THE LOWER COURTS HAD DENIED A REQUEST FOR
ATTORNEYS' FEES FROM THE PROCEEDS OF CERTAIN BOND SALES, WHICH, BECAUSE
OF PETITIONERS' SUCCESS IN THE LITIGATION, WOULD ACCRUE TO THE BENEFIT
OF A NUMBER OF OTHER SIMILARLY SITUATED PERSONS.  THIS COURT REVERSED,
HOLDING THAT THE ALLOWANCE OF ATTORNEYS' FEES AND COSTS BEYOND THOSE
INCLUDED IN THE ORDINARY TAXABLE COSTS RECOGNIZED BY STATUTE WAS WITHIN
THE TRADITIONAL EQUITY JURISDICTION OF THE FEDERAL COURTS.  THIS COURT
REVERSED, HOLDING THAT THE ALLOWANCE OF ATTORNEYS' FEES AND COSTS
BEYOND THOSE INCLUDED IN THE ORDINARY TAXABLE COSTS RECOGNIZED BY
STATUTE WAS WITHIN THE TRADITIONAL EQUITY JURISDICTION OF THE FEDERAL
COURTS.  THE COURT REGARDED THE EQUITABLE FOUNDATION OF THE POWER TO
ALLOW FEES TO BE BEYOND SERIOUS QUESTION: 

" ALLOWANCE OF SUCH COSTS IN APPROPRIATE SITUATIONS IS PART OF THE
HISTORIC EQUITY JURISDICTION OF THE FEDERAL COURTS.  . . ."  "  PLAINLY
THE FOUNDATION FOR THE HISTORIC PRACTICE OF GRANTING REIMBURSEMENT FOR
THE COSTS OF LITIGATION OTHER THAN THE CONVENTIONAL (STATUTORY) TAXABLE
COSTS IS PART OF THE ORIGINAL AUTHORITY OF THE CHANCELLOR TO DO EQUITY
IN A PARTICULAR SITUATION."  307 U.S., AT 164, 166.  /1/ 

IN MORE RECENT CASES, WE HAVE REITERATED THE SAME THEME:  WHILE AS A
GENERAL RULE ATTORNEYS' FEES ARE NOT TO BE AWARDED TO THE SUCCESSFUL
LITIGANT, THE COURTS AS WELL AS THE LEGISLATURE MAY CREATE EXCEPTIONS
TO THAT RULE.  SEE MILLS V. ELECTRIC ATUO-LITE CO., 396 U.S., AT 391 -
392; HALL V. COLE, 412 U.S., AT 5.  UNDER THE JUDGE-MADE EXCEPTIONS,
ATTORNEYS' FEES HAVE BEEN ASSESSED, WITHOUT STATUTORY AUTHORIZATION,
FOR WILLFUL VIOLATION OF A COURT ORDER, TOLEDO SCALE CO. V. COMPUTING
SCALE CO., 261 U.S. 399, 426 - 428 (1923); FOR BAD FAITH OR OPPRESSIVE
LITIGATION PRACTICES, VAUGHAN V. ATKINSON, 369 U.S. 527, 530 - 531
(1962); AND WHERE THE SUCCESSFUL LITIGANTS HAVE CREATED A COMMON FUND
FOR RECOVERY OR EXTENDED A SUBSTANTIAL BENEFIT TO A CLASS, CENTRAL
RAILROAD & BANKING CO. V. PETTUS, 113 U.S. 116 (1885); MILLS V.
ELECTRIC AUTO-LITE CO., SUPRA.  /2/ WHILE THE COURT TODAY ACKNOWLEDGES
THE CONTINUED VITALITY OF THESE EXCEPTIONS, IT TURNS ITS BACK ON THE
THEORY UNDERLYING THEM, AND ON THE GENEROUS CONSTRUCTION GIVEN TO THE
COMMON-BENEFIT EXCEPTION IN OUR RECENT CASES. 

IN MILLS, WE FOUND THE ABSENCE OF STATUTORY AUTHORIZATION NO BARRIER
TO EXTENDING THE COMMON-BENEFIT THEORY TO INCLUDE NONMONETARY BENEFITS
AS A BASIS FOR AWARDING FEES IN A STOCKHOLDERS' DERVIATIVE SUIT. 
DISCOVERING NOTHING IN THE APPLICABLE PROVISIONS OF THE SECURITIES
EXCHANGE ACT OF 1934 TO INDICATE THAT CONGRESS INTENDED "TO
CIRCUMSCRIBE THE COURTS' POWER TO GRANT APPROPRIATE REMEDIES," 396
U.S., AT 391, WE CONCLUDED THAT THE DISTRICT COURT WAS FREE TO
DETERMINE WHETHER SPECIAL CIRCUMSTNACES WOULD JUSTIFY AN AWARD OF
ATTORNEYS' FEES AND LITIGATION COSTS IN EXCESS OF THE STATUTORY
ALLOTMENT.  BECAUSE THE PETITIONERS' LAWSUIT PRESUMABLY ACCRUED TO THE
BENEFIT OF THE CORPORATION AND THE OTHER SHAREHOLDERS, AND BECAUSE
PERMITTING THE OTHERS TO BENEFIT FROM THE PETITIONERS' EFFORTS WITHOUT
CONTRIBUTING TO THE COSTS OF THE LITIGATION WOUDL RESULT IN A FORM OF
UNJUST ENRICHMENT, THE COURT HELD THAT THE PETITIONERS SHOULD BE GIVEN
AN ATTORNEYS' FEE AWARD ASSESSED AGAINST THE RESPONDENT CORPORATION. 

WE ACKNOWLEDGED IN MILLS THAT THE COMMON-FUND EXCEPTION TO THE
AMERICAN RULE HAD UNDERGONE CONSIDERABLE EXPANSION SINCE ITS EARLIEST
APPLICATIONS IN CASES IN WHICH THE COURT SIMPLY ORDERED CONTRIBUTION TO
THE LITIGATION COSTS FROM A COMMON FUND PRODUCED FOR THE BENEFIT OF A
NUMBER OF NONPARTY BENEFICIARIES.  THE DOCTRINE COULD APPLY, THE COURT
WROTE, WHERE THERE WAS NO FUND AT ALL, ID., AT 392, BUT SIMPLY A
BENEFIT OF SOME SORT CONFERRED ON THE CLASS FROM WHICH CONTRIBUTION IS
SOUGHT.  ID., AT 393 - 394.  AS LONG AS THE COURT HAS JURISDICTION OVER
AN ENTITY THROUGH WHICH THE CONTRIBUTION CAN BE EFFECTED, IT IS THE
FAIRER COURSE TO RELIEVE THE PLAINTIFF OF EXCLUSIVE RESPONSIBLITY FOR
THE BURDEN.  FINALLY, WE NOTED THAT EVEN WHERE IT IS IMPOSSIBLE TO
ASSIGN MONETARY VALUE TO THE BENEFIT CONFERRED, "THE STRESS PLACED BY
CONGRESS ON THE IMPORTANCE OF FIAR AND INFORMED CORPORATE SUFFRAGE
LEADS TO THE CONLCUSION THAT, IN VINDICATING THE STATUTORY POLICY,
PETITIONERS HAVE RENDERED A SUBSTANTIAL SERVICE TO THE CORPORATION AND
ITS SHAREHOLDERS."  ID., AT 396.  THE BENEFIT THAT WE DISCERNED IN
MILLS WENT BEYOND SIMPLE MONETARY RELIEF:  IT INCLUDED THE BENEFIT TO
THE SHAREHOLDERS OF HAVING AVAILABLE TO THEM "AN IMPORTANT MEANS OF
ENFORCEMENT OF THE PROXY STATUTE."  IBID. 

ONLY TWO YEARS AGO, IN A MEMBER'S SUIT AGAINST HIS UNION UNDER THE
"FREE SPEECH" PROVISIONS OF THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT, WE HELD THAT IT WAS WITHIN THE EQUITABLE POWER OF THE
FEDERAL COURTS TO GRANT ATTORNEYS' FEES AGAINST THE UNION, SINCE THE
PLAINTIFF HAD CONFERRED A SUBSTANTIAL BENEFIT ON ALL THE MEMBERS OF THE
UNION BY VINDICATING THEIR FREE SPEECH INTERESTS.  HALL V. COLE, 412
U.S. 1 (1973).  BECAUSE A COURT-ORDERED AWARD OF ATTORNEYS' FEES IN A
SUIT UNDER THE FREE SPEECH PROVISION OF THE LMRDA PROMOTED CONGRESS'
INTENTION TO AFFORD MEANINGFUL PROTECTION FOR THE RIGHTS OF EMPLOYEES
AND THE PUBLIC GENERALLY, AND BECAUSE WITHOUT PROVISION OF ATTORNEYS'
FEES AN AGGRIEVED UNION MEMBER WOULD BE UNLIKELY TO BE ABLE TO FINANCE
THE NECESSARY LITIGATION, ID., AT 13, THE COURT HELD THAT THE ALLOWANCE
OF COUNSEL FEES WAS "CONSISTENT WITH BOTH THE (LMRDA) AND THE HISTORIC
EQUITABLE POWER OF FEDERAL COURTS TO GRANT SUCH RELIEF IN THE INTERESTS
OF JUSTICE."  ID., AT 14.     IN MY VIEW, THESE CASES SIMPLY CANNOT BE
SQUARED WITH THE MAJORITY'S SUGGESTION THAT THE AVAILABILITY OF
ATTORNEYS' FEES IS ENTIRELY A MATTER OF STATUTORY AUTHORITY.  THE CASES
PLAINLY ESTABLISH AN INDEPENDENT BASIS FOR EQUITY COURTS TO GRANT
ATTORNEYS' FEES UNDER SEVERAL RATHER GENEROUS RUBRICS.  THE COURT
ACKNOWLEDGES AS MUCH WHEN IT SAYS THAT WE HAVE INDEPENDENT AUTHORITY TO
AWARD FEES IN CASES OF BAD FAITH OR AS A MEANS OF TAXING COSTS TO
SPECIAL BENEFICIARIES.  BUT I AM AT A LOSS TO UNDERSTAND HOW IT CAN
ALSO SAY THAT THIS INDEPENDENT JUDICIAL POWER SUCCUMBS TO PROCRUSTEAN
STATUTORY RESTRICTIONS--INDEED, TO STATUTORY SILENCE--AS SOON AS THE
FAR FROM BRIGHT LINE BETWEEN COMMON BENEFIT AND PUBLIC BENEFIT IS
CROSSED.  I CAN ONLY CONCLUDE THAT THE COURT IS WILLING TO TOLERATE THE
"EQUITABLE" EXCEPTIONS TO ITS ANALYSIS NOT BECAUSE THEY CAN BE SQUARED
WITH IT, BUT BECAUSE THEY ARE BY NOW TOO WELL ESTABLISHED TO BE
CASUALLY DISPENSED WITH. 

        B 

THE TENSION BETWEEN TODAY'S OPINION AND THE LESS RIGID TREATMENT OF
ATTORNEYS' FEES IN THE PAST IS REFLECTED PARTICULARLY IN THE COURT'S
ANALYSIS OF THE DOCKETING-FEES STATUTE, 28 U.S.C. SEC. 1923, AS A
GENERAL STATUTORY EMBODIMENT OF THE AMERICAN RULE.  WHILE THE COURT HAS
HELD IN THE PAST THAT CONGRESS CAN RESTRICT THE AVAILABILITY OF
ATTORNEYS' FEES UNDER A PARTICULAR STATUTE EITHER EXPRESSLY OR BY
IMPLICATION, /3/ SEE FLEISCHMANN DISTILLING CORP. V. MAIER BREWING CO.,
386 U.S. 714 (1967), IT HAS REFUSED TO CONSTRUE SEC. 1923 AS A PLENARY
RESTRAINT ON ATTORNEYS' FEE AWARDS. 

STARTING WITH THE EARLY COMMON-FUND CASES, THE COURT HAS
CONSISTENTLY READ THE FEE-BILL STATUTE OF 1853 NARROWLY WHEN THAT ACT
HAS BEEN INTERPOSED AS A RESTRICTION ON THE COURT'S EQUITABLE POWERS TO
AWARD ATTORNEYS' FEES.  IN TRUSTEES V. GREENOUGH, 105 U.S. 527 (1881),
THE COURT HELD THAT THE STATUTE IMPOSED NO BAR TO AN AWARD OF
ATTORNEYS' FEES FROM THE FUND COLLECTED AS A RESULT OF THE PLAINTIFF'S
EFFORTS, SINCE: 

"(THE FEE BILL STATUTE ADDRESSED) ONLY THOSE FEES AND COSTS WHICH
ARE STRICTLY CHARGEABLE AS BETWEEN PARTY AND PARTY, AND (DID NOT)
REGULATE THE FEES OF COUNSEL AND OTHER EXPENSES AND CHARGES AS BETWEEN
SOLICITOR AND CLIENT . . . AND THE ACT CONTAINS NOTHING WHICH CAN BE
FAIRLY CONSTRUED TO DEPRIVE THE COURT OF CHANCERY OF ITS LONG
ESTABLISHED CONTROL OVER THE COSTS AND CHARGES OF THE LITIGATION, TO BE
EXERCISED AS EQUITY AND JUSTICE MAY REQUIRE . . . ."  ID., AT 535 -
536. 

IN SPRAGUE, SUPRA, THE COURT AGAIN APPLIED THIS DISTINCTION IN
RECOGNIZING "THE POWER OF FEDERAL COURTS IN EQUITY SUITS TO ALLOW
COUNSEL FEES AND OTHER EXPENSES ENTAILED BY THE LITIGATION NOT INCLUDED
IN THE ORDINARY TAXABLE COSTS RECOGNIZED BY STATUTE."  307 U.S., AT
164.  THE COURT THERE IDENTIFIED THE COSTS "BETWEEN PARTY AND PARTY" AS
THE SOLE TARGET OF THE 1853 ACT AND ITS SUCCESSORS.  THE AWARD OF
ATTORNEYS' FEES BEYOND THE LIMITED ORDINARY TAXABLE COSTS, THE COURT
TERMED COSTS "AS BETWEEN SOLICITOR AND CLIENT"; IT HELD THAT THESE
EXPENSES, WHICH COULD BE ASSESSED TO THE EXTENT THAT FAIRNESS TO THE
OTHER PARTY WOULD PERMIT, WERE NOT SUBJECT TO THE RESTRICTIONS OF THE
FEE STATUTE.  ID., AT 166, AND N. 2.  WHETHER THIS AWARD WAS COLLECTED
OUT OF A FUND IN THE COURT OR THROUGH AN ASSESSMENT AGAINST THE LOSING
PARTY IN THE LITIGATION WAS NOT DEEMED CONTROLLING.  ID., AT 166 - 167;
MILLS, 396 U.S., AT 392 - 394. 

MORE RECENTLY, THE COURT GAVE ITS FORMAL SANCTION TO THE LINE OF
LOWER COURTS CASES HOLDING THAT THE FEE STATUTE IMPOSED NO RESTRICTION
ON THE EQUITY COURT'S POWER TO INCLUDE ATTORNEYS' FEES IN THE
PLAINTIFF'S AWARD WHEN THE DEFENDANT HAS UNJUSTIFIABLY PUT THE
PLAINTIFF TO THE EXPENSE OF LITIGATION IN ORDER TO OBTAIN A BENEFIT TO
WHICH THE LATTER WAS PLAINLY ENTITLED.  VAUGHAN V. ATKINSON, 369 U.S.
527 (1962).  DISTINGUISHING THE BALTIMORE, 8 WALL.  377 (1869), A CASE
UPON WHICH THE COURT TODAY HEAVILY RELIES, THE COURT IN VAUGHAN NOTED
THAT THE QUESTION WAS NOT ONE OF "COSTS" IN THE STATUTORY SENSE, SINCE
THE ATTORNEYS' FEE AWARD WAS LEGITIMATELY INCLUDED AS A PART OF THE
PRIMARY RELIEF TO WHICH THE PLAINTIFF WAS ENTITLED, RATHER THAN AN
ANCILLARY ADJUSTMENT OF LITIGATION EXPENSES.  /4/ 

FINALLY, IN FLEISCHMANN DISTILLING CORP. V. MAIER BREWING CO., 386
U.S. 714 (1967), THE COURT UNDERTOOK A COMPREHENSIVE REVIEW OF THE
ASSESSMENT OF ATTORNEYS' FEES IN FEDERAL COURT ACTIONS.  WHILE NOTING
THAT NONSTATUTORY EXCEPTIONS TO THE AMERICAN RULE HAD BEEN SANCTIONED
"WHEN OVERRIDING CONSIDERATIONS OF JUSTICE SEEMED TO COMPEL SUCH A
RESULT," ID., AT 718, THE COURT HELD THAT THE METICULOUS PROVISION OF
REMEDIES AVAILABLE UNDER THE LANHAM ACT AND THE HISTORY OF UNSUCCESSFUL
ATTEMPTS TO INCLUDE AN ATTORNEYS' FEE PROVISION IN THE ACT PRECLUDED
THE COURT'S IMPLYING A RIGHT TO ATTORNEYS' FEES IN TRADEMARK ACTIONS. 
THE COURT DID NOT, HOWEVER, PURPORT TO FIND A STATUTORY BASIS FOR THE
AMERICAN RULE, AND IN FACT IT TREATED SEC. 1923 AS A "GENERAL
EXCEPTION" TO THE AMERICAN RULE, NOT ITS STATUTORY EMBODIMENT.  386
U.S., AT 718 N. 11. 

MY BROTHER WHITE CONCEDES THAT THE LANGUAGE OF THE 1853 STATUTE
INDICATING THAT THE AWARDS PROVIDED THEREIN WERE EXCLUSIVE OF ANY OTHER
COMPENSATION IS NO LONGER A PART OF THE FEE STATUTE.  BUT WE ARE TOLD
THAT THE FEE STATUTE SHOULD BE READ AS IF THAT LANGUAGE WERE STILL IN
THE ACT, SINCE THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THE
1948 REVISION OF THE JUDICIAL CODE THAT THE REVISORS INTENDED TO ALTER
THE MEANING OF SEC. 1923.  YET EVEN IF THAT LANGUAGE WERE STILL IN THE
ACT, I SHOULD THINK THAT THE CONSTRUCTION OF THE ACT IN THE CASES
CREATING JUDICIAL EXCEPTIONS TO THE AMERICAN RULE WOULD SUFFICE TO
DISPOSE OF THE COURT'S ARGUMENT.  SINCE THAT LANGUAGE IS NO LONGER A
PART OF THE FEE STATUTE, IT SEEMS EVEN LESS REASONABLE TO READ THE FEE
STATUTE AS AN UNCOMPROMISING BAR TO EQUITABLE FEE AWARDS. 

NOR CAN ANY SUPPORT FAIRLY BE DRAWN FROM CONGRESS' FAILURE TO
PROVIDE EXPRESSLY FOR ATTORNEYS' FEES IN EITHER THE NATIONAL
ENVIRONMENTAL POLICY ACT OR THE MINERAL LEASING ACT, WHILE IT HAS
PROVIDED FOR FEE AWARDS UNDER OTHER STATUTES.  CONFRONTED WITH WITH THE
MORE FORCEFUL ARGUMENT THAT OTHER SECTIONS OF THE SAME STATUTE INCLUDED
EXPRESS PROVISIONS FOR RECOVERY OF ATTORNEYS' FEES, WE TWICE HELD THAT
SPECIFIC REMEDY PROVISIONS IN SOME SECTIONS SHOULD NOT BE INTERPRETED
AS EVIDENCING CONGRESSIONAL INTENT TO DENY THE COURTS THE POWER TO
AWARD COUNSEL FEES IN ACTIONS BROUGHT UNDER OTHER SECTIONS OF THAT ACT
THAT DO NOT MENTION ATTORNEYS' FEES.  HALL V. COLE, 412 U.S., AT 11;
MILLS V. ELECTRIC AUTO-LITE CO., 396 U.S., AT 390 - 391.  INDEED, THE
MILLS COURT INTERPRETED CONGRESSIONAL SILENCE, NOT AS A PROHIBITION,
BUT AS AUTHORIZATION FOR THE COURT TO DECIDE THE ATTORNEYS' FEES ISSUE
IN THE EXERCISE OF ITS COORDINATE, EQUITABLE POWER.  ID., AT 391.  IN
REJECTING THE ARGUMENT FROM CONGRESSIONAL SILENCE IN MILLS AND HALL,
THE COURT RELIED ON THE ESTABLISHED RULE THAT IMPLIED RESTRICTIONS ON
THE POWER TO DO EQUITY ARE DISFAVORED.  HECHT CO. V. BOWLES, 321 U.S.
321, 329 (1944).  /5/ THE SAME PRINCIPLE APPLIES, A FORTIORI, TO THIS
CASE, WHERE THE IMPLICATION MUST BE DRAWN FROM THE PRESENCE OF
ATTORNEYS' FEES PROVISIONS IN OTHER, UNRELATED PIECES OF LEGISLATION. 
/6/ 

IN SUM, THE COURT'S PRIMARY CONTENTION--THAT CONGRESS ENJOYS
HEGEMONY OVER FEE SHFTING BECAUSE OF THE DOCKETING FEE STATUTE AND THE
OCCASIONAL EXPRESS PROVISIONS FOR ATTORNEYS FEES--WILL NOT WITHSTAND
EVEN THE MOST CASUAL READING OF THE PRECEDENTS.  THE COURT'S
RECOGNITION OF THE SEVERAL JUDGE-MADE EXCEPTIONS TO THE AMERICAN RULE
DEMONSTRATES THE INADEQUACY OF ITS ANALYSIS.  WHATEVER THE COURT'S VIEW
OF THE WISDOM OF FEE SHIFTING IN "PUBLIC BENEFIT" CASES IN GENERAL, I
THINK THAT IT IS A SERIOUS MISSTEP FOR IT TO ABDICATE EQUITABLE
AUTHORITY IN THIS AREA IN THE NAME OF STATUTORY CONSTRUCTION. 

  II 

THE STATUTORY ANALYSIS ASIDE, THE COURT POINTS TO THE DIFFICULTIES
IN FORMULATING A "PRIVATE ATTORNEY GENERAL" EXCEPTION THAT WILL NOT
SWALLOW THE AMERICAN RULE.  I DO NOT FIND THE PROBLEM AS VEXING AS THE
MAJORITY DOES.  IN FACT, THE GUIDELINES TO THE PROPER APPLCIATION OF
THE PRIVATE ATTORNEY GENERAL RATIONALE HAVE BEEN SUGGESTED IN SEVERAL
OF OUR RECENT CASES, BOTH UNDER STATUTORY ATTORNEYS' FEE PROVISIOSN AND
UNDER THE COMMON-BENEFIT EXCEPTION. 

IN NEWMAN V. PIGGIE PARK ENTERPRISES, INC., 390 U.S. 400 (1968), WE
HELD THAT SUCCESSFUL PLAINTIFFS WHO SUE UNDER THE DISCRETIONARY-FEE
AWARD PROVISION OF TITLE II OF THE CIVIL RIGHTS ACT OF 1964 ARE
ENTITLED TO THE RECOVERY OF FEES "UNLESS SPECIAL CIRCUMSTANCES WOULD
RENDER SUCH AN AWARD UNJUST."  390 U.S., AT 402.  THE COURT REASONED
THAT IF CONGRESS HAD INTENDED TO AUTHORIZE FEES ONLY ON THE BASIS OF
BAD FAITH, NO NEW LEGISLATION WOULD HAVE BEEN REQUIRED IN VIEW OF THE
LONG HISTORY OF THE BAD-FAITH EXCEPTION.  ID., AT 402 N. 4.  THE
COURT'S DECISION IN NEWMAN STANDS ON THE NECESSITY OF FEE SHIFTING TO
PERMIT MEANINGFUL PRIVATE ENFORCEMENT OF PROTECTED RIGHTS WITH A
SIGNIFICANT PUBLIC IMPACT.  THE COURT NOTED THAT TITLE II DID NOT
PROVIDE FOR A MONETARY AWARD, BUT ONLY EQUITABLE RELIEF.  ABSENT A FEE
SHIFTING PROVISION, LITIGANTS WOULD BE REQUIRED TO SUFFER FINANCIAL
LOSS IN ORDER TO VINDICATE A POLICY "THAT CONGRESS CONSIDERED OF THE
HIGHEST PRIORITY."  390 U.S., AT 402.  ACCORDINGLY, THE COURT READ THE
ATTORNEYS' FEE PROVISION IN TITLE II GENEROUSLY, SINCE IF "SUCCESSFUL
PLAINTIFFS WERE ROUTINELY FORCED TO BEAR THEIR OWN ATTORNEYS' FEES, FEW
AGGRIEVED PARTIES WOULD BE IN A POSITION TO ADVANCE THE PUBLIC INTEREST
BY INVOKING THE INJUNCTIVE POWERS OF THE FEDERAL COURTS."  390 U.S., AT
402. 

ANALYZING THE ATTORNEYS' FEE PROVISION IN SEC. 718 OF THE EDUCATION
AMENDMENTS ACT OF 1972, THE COURT IN BRADLEY V. SCHOOL BOARD OF THE
CITY OF RICHMOND, 416 U.S. 696, 718 (1974), MADE A SIMILAR POINT. 
THERE THE SCHOOL BOARD, A PUBLICLY FUNDED GOVERNMENTAL ENTITY, HAD BEEN
ENGAGED IN LITIGATION WITH PARENTS OF SCHOOLCHILDREN IN THE DISTRICT. 
THE COURT OBSERVED THAT THE TWO PARTIES HAD VASTLY DISPARATE RESOURCES
FOR LITIGATION, AND THAT THE PLAINTIFFS HAD "RENDERED SUBSTANTIAL
SERVICE BOTH TO THE BOARD ITSELF, BY BRINGING IT INTO COMPLIANCE WITH
ITS CONSTITUTIONAL MANDATE, AND TO THE COMMUNITY AT LARGE BY SECURING
FOR IT THE BENEFITS ASSUMED TO FLOW FROM A NONDISCRIMINATORY
EDUCATIONAL SYSTEM."  ID., AT 718.  ALTHOUGH THE ANALYSIS IN NEWMAN WAS
DIRECTED AT CONSTRUING THE STATUTORY-FEES PROVISION AND THE ANALYSIS IN
BRADLEY WENT TO THE QUESTION OF WHETHER THE FEES PROVISION SHOULD BE
APPLIED TO SERVICES RENDERED BEFORE ITS ENACTMENT, THE ARGUMENTS IN
THOSE CASES FOR READING THE ATTORNEYS' FEE PROVISIONS BROADLY IS QUITE
APPLICABLE TO NONSTATUTORY CASES AS WELL. 

INDEED, WE HAVE ALREADY RECOGNIZED SEVERAL OF THE SAME FACTORS IN
THE RECENT COMMON-BENEFIT CASES.  IN MILLS, WE EMPHASIZED THE BENEFIT
TO THE CLASS OF SHAREHOLDERS OF HAVING A MEANINGFUL REMEDY FOR
CORPORATE MISCONDUCT THROUGH PRIVATE ENFORCEMENT OF THE PROXY
REGULATIONS.  SINCE THE BENEFICIARIES COULD FAIRLY BE TAXED FOR THIS
BENEFIT, WE HELD THAT THE FEE AWARD SHOULD BE MADE AVAILABLE. 
SIMILARLY, IN HALL, WE POINTED TO THE IMBALANCE BETWEEN THE LITIGATING
POWER OF THE UNION AND ONE OF ITS MEMBERS:  IN ORDER TO ENSURE THAT THE
RIGHT IN QUESTION COULD BE ENFORCED, WE HELD THAT ATTORNEYS' FEES
SHOULD BE PROVIDED IN APPROPRIATE CASES.  ADDITIONALLY, WE NOTED THAT
THE ENFORCEMENT OF THE RIGHTS IN QUESTION WOULD ACCRUE TO THE SPECIAL
BENEFIT OF THE OTHER UNION MEMBERS, WHICH JUSTIFIED ASSESSING THE
ATTORNEYS' FEES AGAINST THE TREASURY OF THE DEFENDANT UNION. 

FROM THESE CASES AND OTHERS, IT IS POSSIBLE TO DISCERN WITH SOME
CONFIDENCE THE FACTORS THAT SHOULD GUIDE AN EQUITY COURT IN DETERMINING
WHETHER AN AWARD OF ATTORNEYS' FEES IS APPROPRIATE.  /7/ THE REASONABLE
COST OF THE PLAINTIFF'S REPRESENTATION SHOULD BE PLACED UPON THE
DEFENDANT IF (1) THE IMPORTANT RIGHT BEING PROTECTED IS ONE ACTUALLY OR
NECESSARILY SHARED BY THE GENERAL PUBLIC OR SOME CLASS THEREOF; (2) THE
PLAINTIFF'S PECUNIARY INTEREST IN THE OUTCOME, IF ANY, WOULD NOT
NORMALLY JUSTIFY INCURRING THE COST OF COUNSEL; AND (3) SHIFTING THAT
COST TO THE DEFENDANT WOULD EFFECTIVELY PLACE IT ON A CLASS THAT
BENEFITS FROM THE LITIGATION. 

THERE IS HARDLY ROOM FOR DOUBT THAT THE FIRST OF THESE CRITERIA IS
MET IN THE PRESENT CASE.  SIGNIFICANT PUBLIC BENEFITS ARE DERIVED FROM
CITIZEN LITIGATION TO VINDICATE EXPRESSIONS OF CONGRESSIONAL OR
CONSTITUTIONAL POLICY.  SEE NEWMAN V. PIGGIE PARK ENTERPRISES, SUPRA.
AS A RESULT OF THIS LITIGATION, RESPONDENTS FORCED CONGRESS TO REVISE
THE MINERAL LEASING ACT OF 1920 RATHER THAN PERMIT ITS CONTINUED
EVASION.  SEE PUB. L. 93 - 153, 87 STAT. 576.  THE 1973 AMENDMENTS
IMPOSE MORE STRINGENT SAFETY AND LIABILITY STANDARDS, AND THEY REQUIRE
ALYESKA TO PAY FAIR MARKET VALUE FOR THE RIGHT-OF-WAY AND TO BEAR THE
COSTS OF APPLYING FOR THE PERMIT AND MONITORING THE RIGHT-OF-WAY. 

ALTHOUGH THE NEPA ISSUES WERE NOT ACTUALLY DECIDED, THE LAWSUIT
SERVED AS A CATALYST TO ENSURE A THOROUGH ANALYSIS OF THE PIPELINE'S
ENVIRONMENTAL IMPACT.  REQUIRING THE INTERIOR DEPARTMENT TO COMPLY WITH
THE NEPA AND DRAFT AN IMPACT STATEMENT SATISFIED THE PUBLIC'S STATUTORY
RIGHT TO HAVE INFORMATION ABOUT THE ENVIRONMENTAL CONSEQUENCES OF THE
PROJECT, 83 STAT. 853, 42 U.S.C. SEC. 4332(C), AND ALSO FORCED DELAY IN
THE CONSTRUCTION UNTIL SAFEGUARDS COULD BE INCLUDED AS CONDITIONS TO
THE NEW RIGHT-OF-WAY GRANTS.  /8/     PEITIONER CONTENDS THAT THESE
"BENEFICIAL RESULTS . . ., MIGHT HAVE OCCURRED" WITHOUT THIS
LITIGATION.  BRIEF FOR PETITIONER 11, 36 - 42.  BUT THE RECORD
DEMONSTRATES THAT ALYESKA WAS UNWILLING TO OBSERVE AND THE GOVERNMENT
UNWILLING TO ENFORCE CONGRESSIONAL LAND USE POLICY.  PRIVATE ACTION WAS
NECESSARY TO ASSURE COMPLIANCE WITH THE MINERAL LEASING ACT; THE NEW
ENVIRONMENTAL, TECHNOLOGICAL, AND LAND USE SAFEGUARDS WRITTEN INTO THE
1973 AMENDMENTS TO THE ACT ARE DIRECTLY TRACEABLE TO THE RESPONDENTS'
SUCCESS IN THIS LITIGATION.  IN LIKE MANNER, CONTINUED ACTION WAS
NEEEDED TO PROD THE INTERIOR DEPARTMENT INTO FILING AN IMPACT
STATEMETN; PRIOR TO THE LITIGATION, THE DEPARTMENT AND ALYESKA WERE
PREPARED TO PROCEED WITH THE CONSTRUCTION OF THE PIPELINE ON A
PIECEMEAL BASIS WITHOUT CONSIDERING THE OVERALL RISKS TO THE
ENVIRONMENT AND TO THE PHYSICAL INTEGRITY OF THE PIPELINE. 

THE SECOND CRITERION IS EQUALLY WELL SATISFIED IN THIS CASE. 
RESPONDENTS' WILLINGNESS TO UNDERTAKE THIS LITIGATION WAS LARGELY
ALTRUSITIC.  WHILE THEY DID, OF COURSE, STAND TO BENEFIT FROM THE
ADDITIONAL PROTECTIONS THEY SOUGHT FOR THE AREA POTENTIALLY AFFECTED BY
THE PIPELINE, SEE SIERRA CLUB V. MORTON, 405 U.S. 727 (1972), THE
DIRECT BENEFIT TO THESE CITIZEN ORGANIZATIONS IS TRULY DWARFED BY THE
DEMANDS OF LITIGATION OF THIS PROPORTION.  EXTENSIVE FACTUAL DISCOVERY,
EXPERT SCIENTIFIC ANALYSIS, AND LEGAL RESEARCH ON BROAD RANGE OF
ENVIRONMENTAL, TECHNOLOGICAL, AND LAND USE ISSUES WERE REQUIRED.  SEE
AFFIDAVIT OF COUNSEL (RE BILL OF COSTS), APP. 213 - 219.  THE DISPARITY
BETWEEN RESPONDENTS' DIRECT STAKE IN THE OUTCOME AND THE RESOURCES
REQUIRED TO PURSUE THE CASE IS EXCEEDED ONLY BY THE DISPARITY BETWEEN
THEIR RESOURCES AND THOSE OF THEIR OPPONENTS--THE FEDERAL GOVERNMENT
AND A CONSORTIUM OF GIANT OIL COMPANIES. 

RESPONDENTS' CLAIM ALSO FULFILLS THE THIRD CRITERION, FOR ALYESKA IS
THE PROPER PARTY TO BEAR AND SPREAD THE COST OF THIS LITIGATION
UNDERTAKEN IN THE INTEREST OF THE GENERAL PUBLIC.  THE DEPARTMENT OF
THE INTERIOR, OF COURSE, BEARS LEGAL RESPONSIBILITY FOR ADOPTING A
POSITION LATER DETERMINED TO BE UNLAWFUL.  AND, SINCE THE CLASS OF
BENEFICIARIES FROM THE OUTCOME OF THIS LITIGATION IS PROBABLY
CONEXTENSIVE WITH THE CLASS OF UNITED STATES CITIZENS, THE GOVERNMENT
SHOULD IN FAIRNESS BEAR THE COSTS OF RESPONDENTS' REPRESENTATION.  BUT,
THE COURT OF APPEALS CONCLUDED THAT IT COULD NOT IMPOSE ATTORNEYS' FEES
ON THE UNITED STATES, BECAUSE IN ITS VIEW THE STATUTE PROVIDING FOR
ASSESSMENT OF COSTS AGAINST THE GOVERNMENT, 28 U.S.C. SEC. 2412,
PERMITS THE AWARD OF ORDINARY COURT COSTS, "BUT (DOES) NOT INCLUDEE)
THE FEES AND EXPENSES OF ATTORNEYS."  SINCE THE RESPONDENTS DID NOT
CROSS-PETITION ON THAT POINT, WE HAVE NO OCCASION TO RULE ON THE
CORRECTNESS OF THE COURT'S CONSTRUCTION OF THAT STATUTE.  /9/ 

BEFORE THE DEPARTMENT AND COURTS, ALYESKA ADVOCATED ADOPTION OF THE
POSITION TAKEN BY INTERIOR, PLAYING A MAJOR ROLE IN ALL ASPECTS OF THE
CASE.  /10/ THIS LITIGATION CONFERRED DIRECT AND CONCRETE ECONOMIC
BENEFITS ON ALYESKA AND ITS PRINCIPALS IN AFFORDING PROTECTION OF THE
PHYSICAL INTEGRITY OF THE PIPELINE.  IF A COURT COULD BE REASONABLY
CONFIDENT THAT THE ULTIMATE INCIDENCE OF COSTS IMPOSED UPON AN
APPLICANT FOR A PUBLIC PERMIT WOULD INDEED BE ON THE GENERAL PUBLIC, IT
WOULD BE EQUITABLE TO SHIFT THOSE COSTS TO THE APPLICANT.  /11/ IN THIS
CONNECTION, ALYESKA, AS A CONSORTIUM OF OIL COMPANIES THAT DO BUSINESS
IN 49 STATES AND ACCOUNT FOR SOME 20% OF THE NATIONAL OIL MARKET, WOULD
INDEED BE ABLE TO REDISTRIBUTE THE ADDITIONAL COST TO THE GENERAL
PUBLIC.  IN MY VIEW THE ABILITY TO PASS THE COST FORWARD TO THE
CONSUMING PUBLIC WARRANTS AN AWARD HERE.  THE DECISION TO BYPASS
CONGRESS AND AVOID ANALYSIS OF THE ENVIRONMENTAL CONSEQUENCES OF THE
PIPELINE WAS MADE IN THE FIRST INSTANCE BY ALYESKA'S PRINCIPALS AND NOT
THE SECRETARY OF THE INTERIOR.  THE AWARD DOES NOT PUNISH THE
CONSORTIUM FOR THESE ACTIONS BUT RECOGNIZES THAT IT IS AN EFFECTIVE
SUBSTITUTE FOR THE PUBLIC BENEFICIARIES WHO SUCCESSFULLY CHALLENGED
THESE ACTIONS.  SINCE THE COURT OF APPEALS HELD ALYESKA ACCOUNTABLE FOR
A FAIR SHARE OF THE FEES TO EASE THE BURDEN ON THE PUBLIC-MINDED
CITIZEN LITIGATORS, I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/ SEEL ALSO KANSAS CITY SOUTHERN R. CO. V. GUARDIAN TRUST CO., 281
U.S. 1, 9 (1930); UNIVERSAL OIL PRODUCTS CO. V. ROOT REFINING CO., 328
U.S. 575, 580 (1946). 

/2/ ON SEVERAL RECENT OCCASIONS WE HAVE RECOGNIZED THAT THESE
EXCEPTIONS ARE WELL ESTABLISHED IN OUR EQUITY JURISPRUDENCE.  SEE F.D.
RICH.  CO., INC. V. UNITED STATES EX REL. INDUSTRIAL LUMBER CO., 417
U.S. 116, 129 - 130 (1974); HALL V. COLE, 412 U.S. 1, 5 (1973);
FLEISCHMANN DISTILLING CORP. V. MAIER BREWING CO., 386 U.S. 714, 718 -
719 (1967).  SEE ALSO NEWMAN V. PIGGIE PARK ENTERPRISES, INC., 390 U.S.
400, 402 N. 4 (1968); 6 J. MOORE, FEDERAL PRACTICE 54.77 (2), P. 1709
(2D ED. 1974). 

/3/ IN F.D. RICH CO., INC. V. UNITED STATES EX REL. INDUSTRIAL
LUMBER CO., 417 U.S. 116 (1974), WE HELD THAT ATTORNEYS' FEES SHOULD
NOT BE GRANTED AS A MATTER OF COURSE UNDER THE PROVISION OF THE MILLER
ACT THAT GRANTED CLAIMANTS THE RIGHT TO "SUMS JUSTLY DUE."  49 STAT.
794, AS AMENDED, 40 U.S.C. SEC. 270BA).  TO OVERTURN THE AMERICAN RULE
AS A MATTER OF STATUTORY CONSTRUCTION WOULD BE IMPROPER, WE HELD, WITH
NO BETTER EVIDENCE OF CONGRESSIONAL INTENT TO PROVIDE FOR ATTORNEYS'
FEES, AND IN THE CONTEXT OF EVERDAY COMMERCIAL LITIGATION SUCH AS THAT
UNDER THE MILLER ACT.  417 U.S., AT 130. 

/4/ ALTHOUGH VAUGHAN WAS AN ADMIRALTY CASE AND THEREFORE SUBJECT TO
THE POSSIBLE NARROW READING AS A CASE EVINCING A SPECIAL CONCERN FOR
PLAINTIFF SEAMEN AS WARDS OF THE ADMIRALITY CUORT, WE HAVE NOT GIVEN
THE CASE SUCH A NARROW CONSTRUCTION.  SEE HALL V. COLE, 412 U.S., AT 5;
F.D. RICH CO., INC. V. UNITED STATES EX REL. INDUSTRIAL LUMBER CO., 417
U.S., AT 129 N. 17.  INDEED, THE VAUGHAN COURT ITSELF RELIED ON ROLAX
V. ATLANTIC COAST LINE R. CO., 186 F.2D 473 (CA 4 1951), A NONADMIRALTY
CASE IN WHICH THE PLAINTIFF WAS AWARDED ATTORNEYS' FEES AS AN EQUITABLE
MATTER BECAUSE OF THE OBDURACY OF THE DEFENDANT IN OPPOSING THE
PLAINTIFF'S CIVIL RIGHTS CLAIM. 

/5/ THE WORDS OF THE HECHT COURT APPLY WELL TO THE CASE AS HAND:  "
THE ESSENCE OF EQUITY JURISDICTION HAS BEEN THE POWER OF THE CHANCELLOR
TO DO EQUITY AND TO MOULD EACH DECREE TO THE NECESSITIES OF THE
PARTICULAR CASE.  FLEXIBILITY RATHER THAN RIGIDITY HAS DISTINGUISHED
IT.  THE QUALITIES OF MERCY AND PRACTICALITY HAVE MADE EQUITY THE
INSTRUMENT FOR NICE ADJUSTMENT AND RECONCILIATION BETWEEN THE PUBLIC
INTEREST AND PRIVATE NEEDS AS WELL AS BETWEEN COMPETING PRIVATE
CLAIMS.  WE DO NOT BELIEVE THAT SUCH A MAJOR DEPARTURE FROM THAT LONG
TRADITION AS IS HERE PROPOSED SHOULD BE LIGHTLY IMPLIED."  321 U.S., AT
329 - 330. 

/6/ THE COURT MAKES THE FURTHER POINT THAT 28 U.S.C. SEC. 2412
GENERALLY PRECLUDES A GRANT OF ATTORNEYS' FEES AGAINST THE FEDERAL
GOVERNMENT AND ITS OFFICERS.  EVEN IF THIS IS TRUE, I FAIL TO SEE HOW
IT SUPPORTS THE VIEW THAT THE PRIVATE ATTORNEY GENERAL RATIONALE SHOULD
BE JETTISONED ALTOGETHER.  THERE ARE MANY SITUATIONS IN WHICH OTHER
ENTITIES, BOTH PRIVATE AND PUBLIC, ARE SUED IN PUBLIC INTEREST CASES. 
IF ATTORNEYS' FEES CAN PROPERLY BE IMPOSED ON THOSE PARTIES, I SEE NO
REASON WHY THE STATUTORY IMMUNITY OF THE FEDERAL GOVERNMENT SHOULD HAVE
ANY BEARING ON THE MATTER. 

/7/ THESE TEACHINGS HAVE NOT BEEN LOST ON THE LOWER COURTS IN WHICH
THE ELEMENTS OF THE PRIVATE ATTORNEY GENERAL RATIONALE HAVE BEEN MORE
FULLY EXPLORED.  SEE, E.G., SOUZA V. TRAVISONO,____ F.2D____, (CA 1
1975); HOITT V. VITEK, 495 F.2D 219 (CA 1 1974); KNIGHT V. AUCIELLO,
453 F.2D 852 (CA 1 1974); CORNIST V. RICHLAND PARISH SCHOOL BOARD, 495
F.2D 189 (CA 5 1974); FAIRLEY V. PATTERSON, 493 F.2D 598 (CA 5 1974);
COOPER V. ALLEN 467 F.2D 836 (CA 5 1972); LEE V. SOUTHERN HOME SITES
CORP., 444 F.2D 143 (CA 5 1971); TAYLOR V. PERINI, 503 F.2D 899 (CA 6
1974); MORALES V. HAINES, 486 F.2D 880 (CA 7 1973); DONAHUE V.
STAUNTON, 471 F.2D 475 (CA 7 1972), CERT. DENIED, 410 U.S. 955 (1973);
FOWLER V. SCHWARZWALDER, 498 F.2D 143 (CA 8 1974); BRANDENBURGER V.
THOMPSON, 494 F.2D 885 (CA 9 1974); LA RAZA UNIDA V. VOLPE, 57 F.R.D.
94 (ND CAL. 1972); WYATT V. STICKNEY, 344 F SUPP. 387 (MD ALA. 1972);
NAACP V. ALLEN, 340 F. SUPP. 703 (MD ALA. 1972). 

/8/ SEE S. REP. NO. 93 - 207, P. 18 (1973); H. R. REP. NO. 93 - 414,
P. 14 (1973); HEARINGS ON S. 970, S. 993, AND S. 1565 BEFORE THE SENATE
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, 93D CONG., 1ST SESS., PT. 4,
PP. 56, 127 (1973). 

/9/ THE STATUTE, CONSTRUED IN LIGHT OF THE RULE AGAINST IMPLIED
RESTRICTIONS ON EQUITY JURISDICTION, MAY NOT FORECLOSE ATTORNEYS' FEE
AWARDS AGAINST THE UNITED STATES IN ALL CASES.  SECTION 2412 STATES
THAT THE ORDINARY RECOVERABLE COSTS SHALL NOT INCLUDE ATTORNEYS' FEES;
IT MAY BE READ NOT TO BAR FEE AWARDS, OVER AND ABOVE ORDINARY TAXABLE
COSTS, WHEN EQUITY DEMANDS.  IN ANY EVENT, THERE ARE PLAINLY
CIRCUMSTANCES UNDER WHICH SEC. 2412 WOULD NOT BAR ATTORNEYS' FEE AWARDS
AGAISNT THE UNITED STATES, SEE, E.G., NATURAL RESOURCES DEFENSE
COUNCIL, INC. V. ENVIRONMENTAL PROTECTION AGENCY, 484 F.2D 1331 (CA 1
1973). 

/10/ IN REQUIRING ALYESKA TO PAY ONLY HALF OF THE FEE, THE COURT OF
APPEALS CORRECTLY RECOGNIZED THAT, ABSENT THE STATUTORY BAR, THE
GOVERNMENT WOULD HAVE BEEN IN AN EQUAL POSITION TO SHIFT THE COSTS TO
THE PUBLIC BENEFICIARIES. 

/11/ SEE DAWSON, LAWYERS AND INVOLUNTARY CLIENTS IN PUBLIC INTEREST
LITIGATION, 88 HARV. L. REV. 849, 902 - 905 (1975). 

ROBERT E. JORDAN III ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WERE PAUL F. MICKEY, JAMES H. PIPKIN, JR., AND JOHN D.
KNODELL, JR. 

DENNIS J. FLANNERY ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WERE JOSEPH ONEK, JOHN F. DIENELT, AND THOMAS B. STOEL, JR. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JUNE RESNICK
GERMAN, HAYES N. JOHNSON, ADN NICHOLAS A. ROBINSON FOR THE ASSOCIATION
OF THE BAR OF THE CITY OF NEW YORK; BY ARMAND DERFNER, ALBERT E.
JENNER, JR., NICHOLAS DE B. KATZENBACH, ELLIOT L. RICHARDSON, BERNARD
G. SEGAL, WHITNEY NORTH SEYMOUR, E. BARRETT PRETTYMAN, JR., DAVID S.
TATEL, J. HAROLD FLANNERY, AND PAUL DIMOND FOR THE LAWYERS'  COMMITTEE
FOR CIVIL RIGHTS UNDER LAW; BY JACK GREENBERG, JAMES M. NABRIT III,
ERIC SCHNAPPER, AND CHARLES STEPHEN RALSTON FOR THE NAACP LEGAL DEFENSE
AND EDUCATIONAL FUND, INC.; AND BY HENRY GELLER AND ABRAHAM S.
GOLDSTEIN FOR THE CENTER FOR LAW IN THE PUBLIC INTEREST. 
..END :



















HILL V. STONE, 421 U.S. 289 


       HILL, ATTORNEY GENERL OF TEXAS V. STONE ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF TEXAS

        NO. 73 - 1723.  ARGUED JANUARY 14, 1975--DECIDED MAY 12,

1975; 337 F. SUPP. 1016, AFFIRMED. 


    AFTER A BOND AUTHORIZATION ELECTION TO FINANCE CONSTRUCTION OF

  A CITY LIBRARY WAS DEFEATED IN FORT WORTH, TEX., APPELLEE FORT

  WORTH RESIDENTS BROUGHT AN ACTION IN THE FEDERAL DISTRICT COURT

  CHALLENGING THE PROVISIONS OF THE STATE CONSTITUTION, ELECTION

  CODE, AND CITY CHARTER LIMITING THE RIGHT TO VOTE IN CITY BOND

  ISSUE ELECTIONS TO PERSONS WHO HAVE "RENDERED" OR LISTED REAL,

  MIXED, OR PERSONAL PROPERTY FOR TAXATION IN THE ELECTION DISTRICT

  IN THE YEAR OF THE ELECTION.  A THREE-JUDGE DISTRICT COURT HELD

  THAT THIS RESTRICTION ON SUFFRAGE DID NOT SERVE ANY COMPELLING

  STATE INTEREST AND THEREFORE VIOLATED THE EQUAL PROTECTION CLAUSE

  OF THE FOURTEENTH AMENDMENT.  HELD: 

     1.  THE TEXAS RENDERING REQUIREMENT ERECTS A CLASSIFICATION

  THAT IMPERMISSIBLY DISFRANCHISES PERSONS OTHERWISE QUALIFIED TO

  VOTE, SOLELY BECAUSE THEY HAVE NOT RENDERED SOME PROPERTY FOR

  TAXATION.  PP. 294 - 301. 

(A) AS LONG AS THE ELECTION IS NOT ONE OF SPECIAL INTEREST, ANY

  CLASSIFICATION RESTRICTING THE FRANCHISE ON GROUNDS OTHER THAN

  RESIDENCE, AGE, AND CITIZENSHIP CANNOT STAND UNLESS THE DISTRICT

  OR STATE CAN DEMONSTRATE THAT THE CLASSIFICATION SERVES A

  COMPELLING STATE INTEREST.  KRAMER V. UNION SCHOOL DISTRICT, 395

  U.S. 621, 626 - 627; CIPRIANO V. CITY OF HOUMA, 395 U.S. 701,

  704.  PP. 295 - 297. 

     (B) FORT WORTH'S ELECTION WAS NOT A "SPECIAL INTEREST"

  ELECTION, SINCE A GENERAL OBLIGATION BOND ISSUE, EVEN WHERE THE

  DEBT SERVICES WILL BE PAID ENTIRELY OUT OF PROPERTY TAXES, IS A

  MATTER OF GENERAL INTEREST.  CITY OF PHOENIX V. KOLODZIEJSKI, 399

  U.S. 204.  AND THE RENDERING REQUIREMENT'S ALLEGED FURTHERANCE OF

  THE STATE INTERESTS IN PROTECTING PROPERTY OWNERS WHO WILL BEAR

  THE DIRECT BURDEN OF RETIRING THE CITY'S BOND INDEBTEDNESS AND IN

ENCOURAGING PROSPECTIVE VOTERS TO RENDER THEIR PROPERTY AND

  THEREBY HELP ENFORCE THE STATE'S TAX LAWS, FALLS FAR SHORT OF

  MEETING THE "COMPELLING STATE INTEREST" TEST APPLIED IN KRAMER,

  CIPRIANO, AND PHOENIZ, SUPRA.  PP. 298 - 301. 

     2.  THE DISTRICT COURT'S RULING SHOULD APPLY ONLY TO THOSE
BOND

  AUTHORIZATION ELECTIONS THAT WERE NOT FINAL ON THE DATE OF THAT

  COURT'S JUDGMENT, AND AS TO OTHER JURISDICTIONS THAT MAY HAVE

  SIMILAR RESTRICTIVE VOTING CLASSIFICATIONS, THIS COURT'S DECISION

  SHOULD APPLY ONLY TO ELECTIONS NOT FINAL AS OF THE DATE OF THIS

  DECISION.  PP. 301 - 302. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BRENNAN, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  REHNQUIST,

  J., FILED A DISSENTING OPINION, IN WHICH BURGER, C.J., AND

  STEWART, J., JOINED, POST, P. 302.  DOUGLAS, J., TOOK NO PART IN

  THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US ONCE AGAIN TO CONSIDER THE CONSTITUTIONALITY
OF A CLASSIFICATION RESTRICTING THE RIGHT TO VOTE IN A LOCAL ELECTION. 

APPELLEES, RESIDENTS OF FORT WORTH, TEX., BROUGHT THIS ACTION TO
CHALLENGE THE STATE AND CITY LAWS LIMITING THE FRANCHISE IN CITY BOND
ELECTIONS TO PERSONS WHO HAVE MADE AVAILABLE FOR TAXATION SOME REAL,
MIXED, OR PERSONAL PROPERTY.  A THREE-JUDGE DISTRICT COURT HELD THAT
THIS RESTRICTION ON SUFFRAGE DID NOT SERVE ANY COMPELLING STATE
INTEREST AND THEREFORE VIOLATED THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  STONE V. STOVALL, 377 F. SUPP. 1016 (ND TEX.
1974).  WE GRANTED A PARTIAL STAY OF THE DISTRICT COURT'S ORDER PENDING
DISPOSITION OF THE APPEAL.  416 U.S. 963 (1974).  WE SUBSEQUENTLY NOTED
PROBABLE JURISDICTION.  419 U.S. 822 (1974). 

I 

THE TEXAS CONSTITUTION PROVIDES THAT IN ALL MUNICIPAL ELECTIONS "TO
DETERMINE EXPENDITURE OF MONEY OR ASSUMPTION OF DEBT," ONLY THOSE WHO
PAY TAXES ON PROPERTY IN THE CITY ARE ELIGIBLE TO VOTE.  TEX. CONST.
ART. 6, SEC. 3.  IN ADDITION, IT DIRECTS THAT IN ANY ELECTION HELD "FOR
THE PURPOSE OF ISSUING BONDS OR OTHERWISE LENDING CREDIT, OR EXPENDING
MONEY OR ASSUMING ANY DEBT," THE FRANCHISE SHALL BE LIMITED TO THOSE
QUALIFIED VOTERS "WHO OWN TAXABLE PROPERTY IN THE . . . DISTRICT . . .
WHERE SUCH ELECTION IS HELD," AND WHO HAVE "DULY RENDERED THE SAME FOR
TAXATION."  ID., SEC. 3A.  THE IMPLEMENTING STATUTES IMPOSE THE SAME
REQUIREMENTS, ADDING THAT TO QUALIFY FOR VOTING A RESIDENT OF THE
DISTRICT HOLDING THE ELECTION MUST HAVE "RENDERED" /1/ HIS PROPERTY FOR
TAXATION TO THE DISTRICT DURING THE PROPER PERIOD OF THE ELECTION YEAR,
AND THAT HE MUST SIGN AN AFFIDAVIT INDICATING THAT HE HAS DONE SO.
TEX. ELEC.  CODE SEC. 5.03, 5.04, 5.07 (1967 AND SUPP. 1974 - 1975). 
THE FORT WORTH CITY CHARTER FURTHER PROVIDES THAT THE CITY SHALL NOT
ISSUE BONDS UNLESS THEY ARE AUTHORIZED IN AN ELECTION OF THE "QUALIFIED
VOTERS WHO PAY TAXES ON PROPERTY SITUATED WITHIN THE CORPORATE LIMITS
OF THE CITY OF FT. WORTH."  CHARTER OF THE CITY OF FORT WORTH, C. 25,
SEC. 19. 

IN 1969, AFTER OUR DECISIONS IN KRAMER V. UNION FREE SHCOOL DISTRICT
NO. 15, 395 U.S. 621 (1969), AND CIPRIANO V. CITY OF HOUMA, 395 U.S.
701 (1969), THE TEXAS ATTORNEY GENERAL DEVISED A "DUAL BOX ELECTION
PROCEDURE" TO BE USED IN ALL THE STATE'S LOCAL BOND ELECTIONS.  UNDER
THIS PROCEDURE, ALL PERSONS OWNING TAXABLE PROPERTY RENDERED FOR
TAXATION VOTED IN ONE BOX, AND ALL OTHER REGISTERED VOTERS CAST THEIR
BALLOTS IN A SEPARATE BOX.  THE RESULTS IN BOTH BOXES WERE TABULATED,
AND THE BOND ISSUE WOULD BE DEEMED TO HAVE PASSED ONLY IF IT WAS
APPROVED BY A MAJORITY VOTE BOTH IN THE "RENDERERS' BOX" AND IN THE
AGGREGATE OF BOTH BOXES.  THIS SCHEME ENSURED THAT THE BONDS WOULD BE
SAFE FROM CHALLENGE EVEN IF THE STATE LAW RESTRICTIONS ON THE FRANCHISE
WERE LATER HELD UNCONSTITUTIONAL. 

ON APRIL 11, 1972, THE CITY OF FORT WORTH CONDUCTED A TAX BOND
ELECTION, USING THE DUAL-BOX SYSTEM TO AUTHORIZE THE SALE OF BONDS TO
IMPROVE THE CITY TRANSPORTATION SYSTEM AND TO BUILD A CITY LIBRARY. 
SINCE THE STATE ELIGIBILITY RESTRICTIONS HAD PREVIOUSLY BEEN CONSTRUED
TO REQUIRE ONLY THAT THE PROSPECTIVE VOTER RENDER SOME PROPERTY FOR
TAXATION, EVEN IF HE DID NOT ACTUALLY PAY ANY TAX ON THE PROPERTY,
MONTGOMERY INDEPENDENT SCHOOL DISTRICT V. MARTIN, 464 S.W. 2D 638 (TEX.
1971), ALL THOSE WHO SIGNED AN AFFIDAVIT INDICATING THAT THEY HAD
RENDERED SOME PROPERTY WERE PERMITTED TO VOTE IN THE "RENDERERS' BOX." 
OF THE 29,000 VOTERS WHO PARTICIPATED IN THE BOND ELECTION,
APPROXIMATELY 24,000 VOTED AS RENDERERS AND 5,000 AS NONRENDERERS.  THE
TRANSPORTATION BOND PROPOSAL WAS APPROVED IN BOTH BOXES AND IN THE
AGGREGATE.  THE LIBRARY BONDS, HOWEVER, WERE LESS WELL RECEIVED. 
ALTHOUGH THE LIBRARY BONDS WERE APPROVED BY A MAJORITY OF ALL THE
VOTERS,THEY WERE DEFEATED IN THE RENDERERS' BOX, AND WERE THEREFORE
DEEMED NOT TO HAVE BEEN AUTHORIZED. 

THE APPLEES, THREE OF WHOM HAD VOTED AS NONRENDERERS, /2/ THEN FILED
THIS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS, CLAIMING THAT THE PARTIAL DISFRANCHISEMENT OF
PERSONS NOT RENDERING PROPERTY FOR TAXATION DENIED THEM EQUAL
PROTECTION OF THE LAWS.  /3/ A THREE-JUDGE DISTRICT COURT WAS CONVENED;
IT HEARD ARGUMENT, AND ON MARCH 25, 1974, IT ENTERED JUDGMENT FOR THE
APPELLEES.  THE COURT DECLARED THE RELEVANT PROVISIONS OF THE TEXAS
CONSTITUTION, THE TEXAS ELECTION CODE, AND THE FORT WORTH CITY CHARTER
UNCONSTITUTIONAL "INSOFAR AS THEY CONDITION THE RIGHT TO VOTE IN BOND
ELECTIONS ON CITIZENS' RENDERING PROPERTY FOR TAXATION."  377 F. SUPP.,
AT 1024.  ALTHOUGH THE COURT RULED THAT ITS DECREE WOULD NOT MAKE
INVALID ANY BONDS ALREADY AUTHORIZED OR ANY BOND ELECTIONS HELD BEFORE
THE DATE OF THE JUDGMENT, IT ORDERED THE CITY DEFENDANTS TO COUNT THE
BALLOTS OF THOSE WHO HAD VOTED IN THE NONRENDERERS' BOX, AND IT
ENJOINED ANY FUTURE RESTRICTION OF THE FRANCHISE IN STATE BOND
ELECTIONS TO THOSE WHO HAVE RENDERED PROPERTY FOR TAXATION. 

WHILE ALL THREE JUDGES CONCURRED IN THE JUDGMENT, EACH MEMBER OF THE
PANEL WROTE SEPARATELY.  JUDGE THORNBERRY CONCLUDED THAT THE TEXAS
SCHEME WAS INVALID BECAUSE IT DIVIDED THE OTHERWISE ELIGIBLE VOTERS
INTO TWO CLASSIFICATIONS--RENDERERS AND NONRENDERERS--AND THAT THE
DISFRANCHISEMENT OF THOSE WHO DID NOT RENDER PROPERTY FOR TAXATION
VIOLATED THE EQUAL PROTECTION CLAUSE.  JUDGE WOODWARD CONCURRED IN THE
RESULT ON THEGROUND THAT THE RENDERING REQUIREMENT WAS TANTAMOUNT TO A
REQUIREMENT OF PROPERTY OWNERSHIP, WHICH HE CONCLUDED WAS IMPERMISSIBLE
UNDER THIS COURT'S DECISION IN HARPER V. VIRGINIA BOARD OF ELECTIONS,
383 U.S. 663 (1966).  JUDGE BREWSTER CONCURRED IN THE JUDGMENT, BUT
ONLY BECAUSE HE THOUGHT THE CASE WAS CONTROLLED BY OUR DECISION IN CITY
OF PHOENIX V. KOLODZIEJSKI, 399 U.S. 204 (1970), WHERE WE HELD INVALID
A STATUTE RESTRICTING THE FRANCHISE IN A GENERAL OBLIGATION BOND
ELECTION TO REAL PROPERTY OWNERS. 

        II 

APPELLANT, THE ATTORNEY GENERAL OF TEXAS, /4/ ARGUES THAT NONE OF
THIS COURT'S CASES DRAWS INTO QUESTION A VOTING RESTRICTION OF THE SORT
USED IN THIS ELECTION.  THE ELIGIBILITY SCHEME DOES NOT IMPOSE A WEALTH
RESTRICTION ON THE EXERCISE OF THE FRANCHISE, THE APPELLANT CONTENDS,
AND ANY CLASSIFICATION THAT IT DOES CREATE IS REASONABLE AND SHOULD BE
UPHELD ON THAT BASIS. 

        A 

IN KRAMER V. UNION FREE SCHOOL DISTRICT NO. 15, 395 U.S. 621 (1969),
WE HELD THAT IN AN ELECTION OF GENERAL INTEREST, RESTRICTIONS ON THE
FRANCHISE OTHER THAN RESIDENCE, AGE, AND CITIZENSHIP MUST PROMOTE A
COMPELLING STATE INTEREST IN ORDER TO SURVIVE CONSTITUTIONAL ATTACK. 
THE APPELLANT IN KRAMER CHALLENGED A NEW YORK STATUTE THAT LIMITED
ELIGIBILITY TO VOTE IN LOCAL SHOOL BOARD ELECTIONS TO PERSONS WHO OWNED
OR LEASED TAXABLE REAL PROPERTY IN THE SCHOOL DISTRICT, OR WHO HAD
CHILDREN ENROLLED IN THE PUBLIC SCHOOLS.  WE EXPRESSED NO OPINION IN
KRAMER WHETHER A STATE MIGHT IN SOME CIRCUMSTANCES LIMIT THE FRANCHISE
TO THOSE "PRIMARILY INTERESTED" IN THE ELECTION, /5/ BUT WE HELD THAT
THE NEW YORK STATUTE HAD IMPERMISSIBLY EXCLUDED MANY PERSONS WITH A
DISTINCT AND DIRECT INTEREST IN THE DECISIONS OF THE SCHOOL BOARD,
WHILE AT THE SAME TIME INCLUDING OTHERS WITH NO SUBSTANTIAL INTEREST IN
SCHOOL AFFAIRS.  THE FACT THAT THE SCHOOL DISTRICT WAS SUPPORTED BY A
PROPERTY TAX DID NOT MEAN THAT ONLY THOSE SUBJECT TO DIRECT ASSESSMENT
FELT THE EFFECTS OF THE TAX BURDEN, AND THE INCLUSION OF PARENTS WOULD
NOT EXHAUST THE CLASS OF PERSONS INTERESTED IN THE CONDUCT OF LOCAL
SCHOOL AFFAIRS. 

IN CIPRIANO V. CITY OF HOUMA, 395 U.S. 701 (1969), DECIDED THE SAME
DAY, WE INVALIDATED A LOUISIANA STATUTE LIMITING THE FRANCHISE IN LOCAL
REVENUE BOND ELECTIONS TO THE "PROPERTY TAXPAYERS" OF THE DISTRICT. 
/6/ AS IN KRAMER, THE CITY HAD FAILED TO PROVE THAT UNDER ITS
CLASSIFICATION ALL THOSE EXCLUDED FROM VOTING WERE IN FACT
SUBSTANTIALLY LESS INTERESTED OR AFFECTED THAN THOSE PERMITTED TO
VOTE.  ID., AT 704.  THE BONDS IN CIPRIANO WERE INTENDED TO FINANCE
EXTENSION AND IMPROVEMENT OF THE CITY'S UTILITY SYSTEM.  WE POINTED OUT
THAT THE OPERATION OF A UTILITY SYSTEM AFFECTS PROPERTY OWNERS AND
NONPROPERTY OWNERS ALIKE, AND SINCE THOSE NOT INCLUDED AMONG THE
ELIGIBLE VOTERS OFTEN USE THE UTILITY SERVICES, THEY MIGHT WELL FEEL
THE EFFECT OF OUTSTANDING REVENUE BONDS THROUGH THE UTILITY RATES THEY
WOULD BE REQUIRED TO PAY. 

THE NEXT TERM, IN CITY OF PHOENIX V. KOLODZIEJSKI, SUPRA, WE RULED
UNCONSTITUTIONAL A SIMILAR RESTRICTION OF THE FRANCHISE TO REAL
PROPERTY TAXPAYERS IN A GENERAL OBLIGATION BOND ISSUE.  THE INTERESTS
OF PROPERTY OWNERS AND NONPROPERTY OWNERS IN A GENERAL OBLIGATION BOND
ISSUE, WE HELD, WERE NOT SUFFICIENTLY DISPARATE TO JUSTIFY EXCLUDING
THOSE OWNING NO REAL PROPERTY.  THE RESIDENTS OF THE CITY, WHETHER
PROPERTY OWNERS OR NOT, HAD A COMMON INTEREST IN THE FACILITIES THAT
THE BOND ISSUE WOULD MAKE AVAILABLE, AND THEY WOULD ALL BE
SUBSTANTIALLY AFFECTED BY THE OUTCOME OF THE ELECTION, BOTH IN TERMS OF
THE BENEFITS PROVIDED AND THE OBLIGATIONS INCURRED.  UNDER THE PHOENIX
BOND ARRANGEMENT, WE NOTED THAT SOME OF THE DEBT SERVICE WOULD BE PAID
OUT OF REVENUES OTHER THAN PROPERTY TAX RECEIPTS, SO NONPROPERTY OWNERS
WOULD BE DIRECTLY AFFECTED TO SOME EXTENT.  WE ADDED, HOWEVER, THAT
EVEN WHERE THE MUNICIPALITY LOOKS ONLY TO PROPERTY TAX REVENUES FOR
SERVICING GENERAL OBLIGATION BONDS, THE FRANCHISE COULD NOT
LEGITIMATELY BE RESTRICTED TO REAL PROPERTY OWNERS: 

" PROPERTY TAXES MAY BE PAID INITIALLY BY PROPERTY OWNERS, BUT A
SIGNIFICANT PART OF THE ULTIMATE BURDEN OF EACH YEAR'S TAX ON RENTAL
PROPERTY WILL VERY LIKELY BE BORNE BY THE TENANT RATHER THAN THE
LANDLORD SINCE . . . THE LANDLORD WILL TREAT THE PROPERTY TAX AS A
BUSINESS EXPENSE AND NORMALLY WILL BE ABLE TO PASS ALL OR A LARGE PART
OF THIS COST ON TO THE TENANTS IN THE FORM OF HIGHER RENT."  399 U.S.,
AT 210.  IN ADDITION, WE NOTED THAT PROPERTY TAXES ON COMMERCIAL
PROPERTY WOULD NORMALLY BE TREATED AS A COST OF DOING BUSINESS AND
WOULD "BE REFLECTED IN THE PRICES OF GOODS AND SERVICES PURCHASED BY
NONPROPERTY OWNERS AND PROPERTY OWNERS ALIKE."  ID., AT 211. 

THE BASIC PRINCIPLE EXPRESSED IN THESE CASES IS THAT AS LONG AS THE
ELECTION IN QUESTION IS NOT ONE OF SPECIAL INTEREST, ANY CLASSIFICATION
RESTRICTING THE FRANCHISE ON GROUNDS OTHER THAN RESIDENCE, AGE, AND
CITIZENSHIP CANNOT STAND UNLESS THE DISTRICT OR STATE CAN DEMONSTRATE
THAT THE CLASSIFICATION SERVES A COMPELLING STATE INTEREST.  SEE
KRAMER, 395 U.S., AT 626 - 627; CIPRIANO, 395 U.S., AT 704. 

THE APPELLANT'S CLAIM THAT THE FORT WORTH ELECTION WAS ONE OF
SPECIAL INTEREST AND THUS OUTSIDE THE PRINCIPLES OF THE KRAMER CASE
RUNS AFOUL OF OUR DECISION IN CITY OF PHOENIX V. KOLODZIEJSKI, SUPRA.
IN THE PHOENIX CASE, WE EXPRESSLY STATED THAT A GENERAL OBLIGATION BOND
ISSUE--EVEN WHERE THE DEBT SERVICE WILL BE PAID ENTIRELY OUT OF
PROPERTY TAXES AS IN FORT WORTH--IS A MATTER OF GENERAL INTEREST, AND
THAT THE PRINCIPLES OF KRAMER APPLY TO CLASSIFICATIONS LIMITING
ELIGIBILITY AMONG REGISTERED VOTERS. 

IN MAKING THE ALTERNATIVE CONTENTIONS THAT THE "RENDERING
REQUIREMENT" CREATES NO REAL "CLASSIFICATION," OR THAT THE
CLASSIFICATION CREATED SHOULD BE UPHELD AS BEING REASONABLE, THE
APPLELLANT MISCONCEIVES THE RATIONALE OF KRAMER AND ITS SUCCESSORS. 
APPELLANT ARGUES THAT SINCE ALL PROPERTY IS REQUIRED TO BE RENDERED FOR
TAXATION, AND SINCE ANYONE CAN VOTE IN A BOND ELECTION IF HE RENDERS
ANY PROPERTY, NO MATTER HOW LITTLE, THE TEXAS SCHEME DOES NOT
DISCRIMINATE ON THE BASIS OF WEALTH OR PROPERTY.  /7/ OUR CASES,
HOWEVER, HAVE NOT HELD OR INTIMATED THAT ONLY PROPERTY-BASED
CLASSIFICATIONS ARE SUSPECT; IN AN ELECTION OF GENERAL INTEREST,
RESTRICTIONS ON THE FRANCHISE OF ANY CHARACTER MUST MEET A STRINGENT
TEST OF JUSTIFICATION.  THE TEXAS SCHEME CREATES A CLASSIFICATION BASED
ON RENDERING, AND IT IN EFFECT DISFRANCHISES THOSE WHO HAVE NOT
RENDERED THEIR PROPERTY FOR TAXATION IN THE YEAR OF THE BOND ELECTION. 
MERE REASONABLENESS WILL THEREFORE NOT SUFFICE TO SUSTAIN THE
CLASSIFICATION CREATED IN THIS CASE. 

        B 

THE APPELLANT HAS SOUGHT TO JUSTIFY THE STATE'S RENDERING
REQUIREMENT SOLELY ON THE GROUND THAT IT EXTENDS SOME PROTECTION TO
PROPERTY OWNERS, WHO WILL BEAR THE DIRECT BURDEN OF RETIRING THE CITY'S
BONDED INDEBTEDNESS.  THE PHOENIX CASE, HOWEVER, REJECTED THIS ANALYSIS
OF THE "DIRECT"  IMPOSITION OF COSTS ON PROPERTY OWNERS.  EVEN UNDER A
SYSTEM IN WHICH THE RESPONSIBILITY OF RETIRING THE BONDED INDEBTEDNESS
FALLS DIRECTLY ON PROPERTY TAXPAYERS, ALL MEMBERS OF THE COMMUNITY
SHARE IN THE COST IN VARIOUS WAYS.  MOREOVER, THE CONSTRUCTION OF A
LIBRARY IS NOT LIKELY TO BE OF SPECIAL INTERST TO A PARTICULAR, WELL
DEFINED PORTION OF THE ELECTORATE.  QUITE APART FROM THE GENERAL
INTEREST OF THE LIBRARY BOND ELECTION, THE APPELLANT'S CONTENTION THAT
THE RENDERING REQUIREMENT IMPOSES NO REAL IMPEDIMENT TO PARTICIPATION
ITSELF UNDERCUTS THE CLAIM THAT IT SERVES THE PURPOSE OF PROTECTING
THOSE WHO WILL BEAR THE BURDEN OF THE DEBT OBLIGATIONS.  IF ANYONE CAN
BECOME ELIGIBLE TO VOTE BY RENDERING PROPERTY OF EVEN NEGLIGIBLE VALUE,
THE RENDERING REQUIREMENT CAN HARDLY BE SAID TO SELECT VOTERS ACCORDING
TO THE MAGNITUDE OF THEIR PROSPECTIVE LIABILITY FOR THE CITY'S
INDEBTEDNESS.  /8/     THE APPELLEE CITY OFFICIALS ARGUE THAT THE
RENDERING QUALIFICATION FURTHERS ANOTHER STATE INTERST:  IT ENCOURAGES
PROSPECTIVE VOTERS TO RENDER THEIR PROPERTY AND THEREBY HELPS ENFORCE
THE STATE'S TAX LAWS.  THIS ARGUMENT IS DIFFICULT TO CREDIT.  THE USE
OF THE FRANCHISE TO COMPEL COMPLIANCE WITH OTHER, INDEPENDENT STATE
OBJECTIVES IS QUESTIONABLE IN ANY CONTEXT.  SEE UNITED STATES V. TEXAS,
252 F. SUPP. 234, 253 - 254 (WD TEX.), AFF'D, 384 U.S. 155 (1966).  IT
SEEMS PARTICULARLY DUBIOUS HERE, SINCE UNDER THE STATE'S CONSTRUCTION
OF THE RENDERING REQUIREMENT, AN INDIVIDUAL WILL BE GIVEN THE RIGHT TO
VOTE IF RENDERS ANY PROPERTY AT ALL, NO MATTER HOW TRIVIAL.  THOSE
RENDERING SOLELY TO EARN THE RIGHT TO VOTE IN BOND ELECTIONS MAY WELL
RENDER PROPERTY OF MINIMAL VALUE, IN ORDER TO QUALIFY FOR VOTING
WITHOUT IMPOSING UPON THEMSELVES A SUBSTANTIAL TAX LIABILITY.  THE
RENDERING REQUIREMENT THUS SEEMS UNLIKELY TO HAVE ANY SIGNIFICANT
IMPACT ON THE ASSERTED STATE POLICY OF ENCOURAGING EACH PERSON TO
RENDER ALL OF HIS PROPERTY.  /9/ 

IN SUM, THE TEXAS RENDERING REQUIREMENT ERECTS A CLASSIFICATION THAT
IMPERMISSIBLY DISFRANCHISES PERSONS OTHERWISE QUALIFIED TO VOTE, SOLELY
BECAUSE THEY HAVE NOT RENDERED SOME PROPERTY FOR TAXATION.  THE PHOENIX
CASE ESTABLISHES THAT FORT WORTH'S ELECTION WAS NOT A "SPECIAL
INTEREST" ELECTION, AND THE STATE INTERESTS PROFFERED BY APPELLANT AND
THE CITY OFFICIALS FALL FAR SHORT OF MEETING THE "COMPELLING STATE
INTEREST" TEST CONSISTENTLY APPLIED IN KRAMER, CIPRIANO, AND PHOENIX. 

        III 

IN ORDER TO AVOID THE POSSIBILITY OF UPSETTING PREVIOUS BOND
ELECTIONS IN THE STATE, THE DISTRICT COURT DECLINED TO GIVE RETROACTIVE
EFFECT TO ITS JUDGMENT.  WE HAVE FOLLOWED THE SAME COURSE IN OUR PRIOR
CASES DEALING WITH VOTING CLASSIFICATIONS IN BOND ELECTIONS, SEE
CIPRIANO, 395 U.S., AT 706; PHOENIX, 399 U S., AT 213 - 215, AND WE
AGREE WITH THE DISTRICT COURT'S DETERMINATION NOT TO GIVE ITS RULING
RETROACTIVE EFFECT.  SINCE THE PORTION OF THE DISTRICT COURT'S JUDGMENT
INVALIDATING THE STATE CONSTITUTIONAL AND STATUTORY PROVISIONS HAS BEEN
IN FULL EFFECT SINCE THAT TIME, /10/ AND SINCE SOME LOCAL BOND
ELECTIONS MAY SUBSEQUENTLY HAVE BEEN CONDUCTED IN RELIANCE ON THAT
JUDGMENT, WE HOLD THAT THE DISTRICT COURT'S RULING SHOULD APPLY ONLY TO
THOSE BOND AUTHORIZATION ELECTIONS THAT WERE NOT FINAL ON THE DATE OF
THE DISTRICT COURT'S JUDGMENT.  AS TO OTHER JURISDICTIONS THAT MAY HAVE
RESTRICTIVE VOTING CLASSIFICATIONS SIMILAR TO THOSE IN TEXAS, /11/ WE
HOLD THAT OUR DECISION SHOULD NOT APPLY WHERE THE AUTHORIZATION TO
ISSUE THE SECURITIES IS LEGALLY COMPLETE AS OF THE DATE OF THIS
DECISION. 

                                  AFFIRMED. 

/1/ TO "RENDER" PROPERTY FOR TAXATION MEANS TO LIST IT WITH THE TAX
ASSESSOR-COLLECTOR OF THE TAXING DISTRICT IN QUESTION.  PROPERTY IS
"RENDERED" FOR TAXATION EITHER WHEN THE OWNER REPORTS IT OR WHEN THE
TAX ASSESSOR-COLLECTOR PLACES IT ON THE TAX ROLLS HIMSELF.  TAXABLE
PROPERTY INCLUDES ALL REAL, MIXED, AND PERSONAL PROPERTY WITH LIMITED
EXEMPTIONS, SUCH AS $3,000 FOR HOMESTEADS AND $250 FOR HOUSEHOLD
FURNISHINGS.  TEX. CONST. ART. 8, SEC. 1.  ALTHOUGH STATE LAW REQUIRES
TAXPAYERS TO RENDER ALL THEIR TAXABLE PROPERTY, TEX. REV. CIV. STAT.
ARTS. 7145, 7152 (1960 AND SUPP. 1974 - 1975), THERE IS NO PENAL
SANCTION FOR FAILING TO DO SO VOLUNTARILY. 

/2/ OF THE FIVE NAMED APPELLEES, THREE VOTED AS NONRENDERERS AND TWO
AS RENDERING PROPERTY OWNERS.  THEY SOUGHT TO REPRESENT THE CLASS OF
ALL PERSONS WHO VOTED IN THE ELECTION IN FAVOR OF THE LIBRARY BONDS. 
THE DISTRICT COURT CERTIFIED THE CLASS AS PROPER UNDER FED. RULE CIV.
PROC. 23(B)(2).  THE CITY OF FORT WORTH AND VARIOUS CITY OFFICIALS, WHO
WERE DEFENDANTS BELOW, ARE LISTED AS APPELLEES IN THIS COURT, BUT THEY
SUPPORT THE APPEAL AND HAVE FILED A BRIEF URGING REVERSAL, AND ARE NOT
INCLUDED IN SUBSEQUENT REFERENCES TO APPELLEES. 

/3/ THE EFFECT OF THE DUAL-BOX PROCEDURE WAS THAT THE NONRENDERERS
COULD HELP DEFEAT A BOND ISSUE, BUT THEY COULD NOT HELP PASS IT.  IF
THEIR VOTES, ADDED TO THE VOTES OF THE RENDERERS, PRODUCED A MAJORITY
AGAINST THE BONDS, THE BONDS WOULD NOT BE ISSUED, EVEN IF THE RENDERERS
FAVORED THEM.  BUT IF THE RENDERERS OPPOSED THE BONDS, THE
NONRENDERERS' VOTES WOULD BE OF NO EFFECT, EVEN IF THEY PRODUCED AN
OVERALL MAJORITY IN FAVOR OF THE BOND ISSUE. 

/4/ THE ATTORNEY GENERAL WAS JOINED AS A DEFENDANT BECAUSE TEXAS LAW
REQUIRES THAT HE CERTIFY THE VALIDITY OF ANY MUNICIPAL BOND ISSUE. 
TEX. REV. CIV. STAT. ARTS. 709D (1964 AND SUPP. 1974 - 1975), 4398
(1966). 

/5/ WE ANSWERED THAT QUESTION IN SALYER LAND CO. V. TULARE WATER
DISTRICT, 410 U.S. 719 (1973).  IN THAT CASE, WE HELD THAT A WATER
DISTRICT CREATED FOR THE PURPOSE COULD CONSTITUTIONALLY HAVE A BOARD OF
DIRECTORS SELECTED IN AN ELECTION IN WHICH VOTES WERE ALLOCATED
ACCORDING TO THE ASSESSED VALUE OF EACH VOTER'S LAND.  BECAUSE OF ITS
"SPECIAL LIMITED PURPOSE AND . . . THE DISPROPORTIONATE EFFECT OF ITS
ACTIVITIES ON LANDOWNERS AS A GROUP," ID., AT 728, THE COURT HELD THAT
THE WATER DISTRICT ELECTION WAS OF SUFFICIENT "SPECIAL INTERST" TO A
SINGLE GROUP THAT THE FRANCHISE COULD CONSTITUTIONALLY BE DENIED TO
OTHERS. 

/6/ IN LOUISIANA, AS IN TEXAS, PERSONAL PROPERTY AS WELL AS REAL
PROPERTY WAS SUBJECT TO TAXATION, AND A "PROPERTY TAXPAYER" COULD
INCLUDE A PERSON WITH ONLY PERSONALTY.  THE ADMINISTRATIVE PRACTICE WAS
TO TAX ONLY REAL PROPERTY, HOWEVER, SO THE EFFECT WAS THAT IN REALITY
"PROPERTY TAXPAYER" MEANT "REAL PROPERTY TAXPAYER."  SEE STEWART V.
PARISH SCHOOL BOARD, 310 F. SUPP. 1172, 1173 N. 3 (ED LA.), AFF'D, 400
U.S. 884 (1970). 

/7/ AS A PRACTICAL MATTER, UNDER TEXAS' SCHEME OF TAX ASSESSMENT AND
COLLECTION, THE RENDERING REQUIREMENT MAY IN EFFECT CREATE A PROPERTY
RELATED CLASSIFICATION.  APPELLEES' COUNSEL INFORMED US AT ORAL
ARGUMENT THAT FORT WORTH, LIKE OTHER COMMUNITIES IN TEXAS, MAKES NO
AFFIRMATIVE EFFORT TO TAX PROPERTY OTHER THAN REALTY AND BUSINESS
PERSONALTY.  TR. OF ORAL ARG. 26 - 27.  RESIDENTS ARE FREE TO "RENDER"
OTHER FORMS OF PERSONALTY, BUT THIS IS APPARENTLY SELDOM DONE.  SEE
YUDOF, THE PROPERTY TAX IN TEXAS UNDER STATE AND FEDERAL LAW, 51 TEX.
L. REV. 885, 889 - 890 (1973).  AS A RESULT, IN FORT WORTH THOSE WITH
REALTY AND BUSINESS PERSONALTY ARE AUTOMATICALLY ELIGIBLE TO VOTE AS
"RENDERERS," WHILE OTHER VOTERS MUST TAKE THE SOMEWHAT UNUSUAL STEP OF
VOLUNTARILY "RENDERING" THEIR PROPERTY FOR TAXATION.  WHEN HE DOES SO,
THE TAXPAYER AFFIRMS THAT HE HAS RENDERED ALL HIS PROPERTY, AND THAT
THE VALUATION OF THE PROPERTY IS CORRECT.  TEX. REV. CIV. STAT. ARTS.
7164, 7184 (1960). 

/8/ THIS ARGUMENT IS SIMILAR TO THE ONE MADE BY THE STATE OF GEORGIA
IN DEFENSE OF ITS "FREEHOLDER" REQUIREMENT FOR MEMBERSHIP ON COUNTY
BOARDS OF EDUCATION.  TURNER V. FOUCHE, 396 U.S. 346, 363 - 364
(1970).  THE STATE THERE CLAIMED THAT THE FREEHOLDER REQUIREMENT
IMPOSED NO REAL BURDEN, SINCE A CANDIDATE WOULD QUALIFY IF HE OWNED
EVEN A SINGLE SQUARE INCH OF LAND.  WE CONCLUDED THAT IF THAT WAS THE
CASE IT WAS DIFFICULT TO CONCEIVE THAT THE REQUIREMENT SERVED ANY
RATIONAL STATE INTEREST WHATSOEVER. 

/9/ APPELLANT RELIES ON THIS COURT'S DECISIONS IN MC DONALD V. BOARD
OF ELECTION, 394 U.S. 802 (1969), AND ROSARIO V. ROCKEFELLER, 410 U.S.
752 (1973), IN DEFENSE OF THE CLASSIFICATION CREATED BY TEXAS LAW IN
THIS CASE.  IN MC DONALD, HOWEVER, THE ONLY ISSUE BEFORE THE COURT WAS
WHETHER PRETRIAL DETAINEES IN ILLINOIS JAILS WERE UNCONSTITUTIONALLY
DENIED ABSENTEE BALLOTS.  THE COURT EXPRESSLY NOTED THAT THERE WAS
NOTHING IN THE RECORD TO INDICATE THAT THE CHALLENGED ILLINOIS STATUTE
HAD ANY IMPACT ON THE APPELLANTS' EXERCISE OF THEIR RIGHT TO VOTE.  SEE
394 U.S., AT 807 - 809.  ANY CLASSIFICATION ACTUALLY RESTRAINING THE
FUNDAMENTAL RIGHT TO VOTE, THE COURT NOTED, WOULD BE SUBJECT TO CLOSE
SCRUTINY.  IN ROSARIO, THE COURT UPHELD A NEUTRAL REQUIREMENT THAT A
VOTER REGISTER A PARTY PREFERENCE 30 DAYS IN ADVANCE OF THE GENERAL
ELECTION IN ORDER TO BE ELIGIBLE TO PARTICIPATE IN THE SUCCEEDING
PRIMARY ELECTION.  BECAUSE THE REGISTRATION REQUIREMENT SERVED THE
"LEGITIMATE AND VALID STATE GOAL" OF "PRESERVATION OF THE INTEGRITY OF
THE ELECTORAL PROCESS," 410 U.S., AT 761, AND BECAUSE IT IMPOSED NO
SPECIAL BURDEN ON ANY CLASS BEFORE THE COURT, SEE ID., AT 759 N. 9, THE
COURT HELD THAT THE TIME LIMITATION ON REGISTRATION DID NOT VIOLATE
EITHER THE EQUAL PROTECTION CLAUSE OR THE FIRST AND FOURTEENTH
AMENDMENT RIGHT OF ASSOCIATION.  BY CONTRAST, THE TEXAS SCHEME IMPOSES
A RESTRICTION ON THE FRANCHISE HAVING NO PERCEPTIBLE PURPOSE OR EFFECT
IN PRESERVING THE INTEGRITY OF THE ELECTORAL PROCESS; INSTEAD, IT
EXCLUDES A PORTION OF THE ELECTORATE FOR FAILING TO COMPLY WITH A
WHOLLY INDEPENDENT STATE POLICY. 

/10/ THE PARTIAL STAY OF THE DISTRICT COURT'S JUDGMENT WAS GRANTED
ONLY TO THE EXTENT THAT THE JUDGMENT BELOW HAD PROHIBITED THE USE OF
THE DUAL-BOX ELECTION PROCEDURE.  416 U.S. 963. 

/11/ THERE MAY BE NO SUCH JURISDICTIONS, AT LEAST WHERE BOND
ELECTION VOTING QUALIFICATIONS ARE GOVERNED BY STATEWIDE STATUTES AND
CONSTITUTIONAL PROVISIONS.  WE ARE TOLD THAT IN THE 15 STATES BESIDES
TEXAS THAT RESTRICTED THE FRANCHISE TO TAXPAYERS IN SOME FASHION AT THE
TIME THE PHOENIX CASE WAS DECIDED, ALL QUALIFIED VOTERS ARE NOW
PERMITTED TO PARTICIPATE IN BOND ELECTIONS.  BRIEF FOR CITY OF PHOENIX,
ARIZ., ET AL. AS AMICI CURIAE 19.  IN ADDITION TO THE 13 STATES
REFERRED TO IN CITY OF PHOENIX V. KOLODZIEJSKI, 399 U.S. 204, 213 N. 11
(1970), NEVADA AND WYOMING UTILIZED A DUAL-BOX ELECTION PROCEDURE MUCH
LIKE TEXAS', BUT IN BOTH CASES THAT PROCEDURE HAS BEEN ABANDONED.  SEE
NEV. LAWS 1971, C. 49; WYO. LAWS 1973, C. 251. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REHNQUIST, WHTH WHOM THE CHIF JUSTICE AND MR. JUSTICE
STEWARD JOIN, DISSENTING. 

THE TEXAS CONSTITUTION RESTRICTS THE VOTE IN GENERAL OBLIGATION BOND
ELECTIONS TO THOSE WHO RENDER TAXABLE PROPERTY WITH LOCAL TAXING
OFFICIALS.  TEX. CONST. ART. 6, SEC. 3A.  ALL REAL, PERSONAL, OR MIXED
PROPERTY OWNED BY ANY CITIZEN OF THE STATE IS TAXABLE PROPERTY UNDER
STATE LAW.  TEX. CONST. ART. 8, SEC. 1; TEX. REV. CIV. STAT. ARTS.
7145, 7147 (1960 AND SUPP. 1974 - 1975).  AND ALL CITIZENS OF THE STATE
ARE REQUIRED BY LAW TO RENDER ALL SUCH TAXABLE PROPERTY WITH LOCAL
TAXING OFFICIALS ON A YEARLY BASIS IN ORDER THAT IT BE ADDED TO LOCAL
TAX ROLLS.  TEX. REV. CIV. STAT. ARTS. 7145, 7151, 7152, 7153, 7189
(1960 AND SUPP. 1974 - 1975). 

THE RENDERING REQUIREMENT FOR VOTING IS SATISFIED BY THE LISTING OF
ANY SINGLE ITEM OF PROPERTY, EVEN THOUGH OF PURELY NOMINAL WORTH, WITH
TAXING OFFICIALS AND THE COMPLETION OF AN AFFIDAVIT PROVIDED AT POLLING
PLACES WITH A DESCRIPTION OF ANY SINGLE ITEM OF PROPERTY WHICH THE
VOTER HAS PROPERLY RENDERED.  TEX. ELEC.  CODE SEC. 5.03 ET SEQ. (1967
AND SUPP. 1974 - 1975); MONTGOMERY INDEPENDENT SCHOOL DISTRICT V.
MARTIN, 464 S.W. 2D 638, 640 (TEX. 1971); DUBOSE V. AINSWORTH, 139 S.W.
2D 307, 308 (TEX. CIV. APP. 1940).  RENDERING IMMEDIATELY BEFORE THE
ELECTION OF ANY ITEM OF PROPERTY QUALIFIES, EVEN THOUGH UNTIMELY UNDER
THE RENDERING STATUTES, MARKOWSKY V. NEWMAN, 134 TEX. 440, 449 - 450,
136 S.W. 2D 808, 813 (1940), AND THE ABSENCE OF ADEQUATE FACILITIES FOR
THE RENDERING OF PROPERTY ELIMINATES THE RENDITION REQUIREMENT.  HANSON
V. JORDAN, 145 TEX. 320, 198 S.W. 2D 262 (1946); GREEN V. STIENKE, 321
S.W. 2D 95 (TEX. CIV. APP. 1959).  UNDER STATE LAW, THE TEXAS ELECTOR
WHO RENDERS A PAIR OF SHOES OR A BICYCLE ON ELECTION DAY CASTS A VOTE
NO DIFFERENT FROM THAT OF A RENDERING CATTLE BARON. 

NOT SURPRISINGLY, THE TEXAS SUPREME COURT IN MONGOMERY INDEPENDENT
SCHOOL DISTRICT V. MARTIN, SUPRA, UPHELD THE RENDERING QUALIFICATION: 

"(VOTER QUALIFICATIONS OF OWNERSHIP UNDER THE TEXAS CONSTITUTIONAL
AND STATUTORY PROVISIONS STATED ABOVE, AS INTERPRETED BY OUR DECISIONS,
ARE SO UNIVERSAL AS TO CONSTITUTE NO IMPEDIMENT TO ANY ELECTOR WHO
REALLY DESIRES TO VOTE IN A BOND ELECTION.  A VOTER IS QUALIFIED IF HE
RENDERS ANY KIND OF PROPERTY OF ANY VALUE, AND HE NEED NOT HAVE
ACTAULLY PAID THE TAX. 

        * * * * * 

     ". . . ONE WHO IS WILLING TO VOTE FOR AND IMPOSE A TAX ON THE

  PROPERTY OF ANOTHER SHOULD BE WILLING TO ASSUME HIS DISTRIBUTIVE

  SHARE OF THE BURDEN.  . . .

        * * * * * 

     ". . . TO ALLOW SOME PROPERTY OWNERS TO VOTE IN THAT KIND OF
AN

  ELECTION, AND AT THE SAME TIME TO PERMIT THEM TO AVOID THEIR FAIR

SHARE OF THE RESULTING OBLIGATION, WOULD CONFER PREFERENTIAL

  RIGHTS."  464 S.W. 2D, AT 640 - 642. 

APPELLEES IN THE INSTANT CASE HAVE NOT DRAWN OUR ATTENTION TO A
TOTALLY PROPERTYLESS CITIZEN OF FORT WORTH, POORER THAN DIOGENES, WHOSE
TOTAL LACK OF OWNERSHIP PRECLUDES HIM FROM COMPLYING WITH THE RENDERING
REQUIREMENT.  INSTEAD, THE ALLEGED DEPRIVED CLASS IN THE INSTANT CASE
CONSISTS OF THOSE WHO VIOLATED THEIR LEGAL OBLIGATION UNDER STATE LAW,
CHOOSING NOT TO RENDER ANY PROPERTY BY REASON OF CARELESSNESS, A TAX
AVOIDANCE MOTIVE, OR OTHERWISE.  AND THE ALLEGED DEPRIVATION OF EQUAL
PROTECTION LIES IN SELF-DISFRANCHISEMENT CAUSED BY THEIR FAILURE TO
UTILIZE READILY AVAILABLE FACILITIES TO RENDER PROPERTY. 

SINCE LAWS CONSIDERED BY THIS COURT UNDER THE EQUAL PROTECTION
CLAUSE ARE NOT ABSTRACT PROPOSITIONS SUBJECT TO A REQUIREMENT OF
DISEMBODIED EQUALITY WHICH INVALIDATES CLASSIFICATIONS WITHOUT
EXAMINATION OF THE CIRCUMSTANCES SURROUNDING THEM, TIGNER, V. TEXAS,
310 U.S. 141, 147 (1940), WE HAVE WITHOUT EXCEPTION IN PASSING UPON
GOVERNMENTAL REQUIREMENTS AFFECTING VOTING LOOKED TO THE CHARACTER OF
THE CLASSIFICATION CHALLENGED AS DENYING EQUAL PROTECTION AND THE
INDIVIDUAL INTERESTS AFFECTED BY IT.  WILLIAMS V. RHODES, 393 U.S. 23,
30 (1968); DUNN V. BLUMSTEIN, 405 U.S. 330, 335, 336 (1972).  AND OUR
PRIOR CASES HAVE HELD THAT SCRUTINY UNDER THIS CLAUSE IS TRIGGERED ONLY
WHERE RESTRICTIONS HAVE A REAL AND APPRECIABLE IMPACT ON ABILITY TO
EXERCISE THE FRANCHISE.  SEE MC DONALD V. BOARD OF ELECTION, 394 U.S.
802, 807 - 808 (1969); KRAMER V. UNION FREE SCHOOL DISTRICT NO. 15, 395
U.S. 621, 626 - 627, N. 6 (1969); GORDON V. LANCE, 403 U.S. 1, 5
(1971); BULLOCK V. CARTER, 405 U.S. 134, 144 (1972).     IN ROSARIO V.
ROCKEFELLER, 410 U.S. 752 (1973), WE UPHELD A NEW YORK REGISTRATION
REQUIREMENT REQUIRING REGISTRATION IN A PARTY 11 MONTHS IN ADVANCE OF
ITS PRIMARY AS A PREREQUISISTE TO PARTICIPATION IN THE PRIMARY,
STATING: 

     " WE CANNOT ACCEPT THE PETITIONERS' CONTENTION.  NONE OF THE

  CASES ON WHICH THEY RELY IS APPOSITE TO THE SITUATION HERE.  IN

EACH OF THOSE CASES, THE STATE TOTALLY DENIED THE ELECTORAL

 FRANCHISE TO A PARTICULAR CLASS OF RESIDENTS, AND THERE WAS NO

  WAY IN WHICH THE MEMBERS OF THAT CLASS COULD HAVE MADE THEMSELVES

  ELIGIBLE TO VOTE.  . . . SECTION 186 OF NEW YORK'S ELECTION LAW,

  HOWEVER, IS QUITE DIFFERENT.  IT DID NOT ABSOLUTELY

  DISENFRANCHISE THE CLASS TO WHICH THE PETITIONERS BELONG--NEWLY

  REGISTERED VOTERS . . . . RATHER, THE STATUTE MERELY IMPOSED A

  TIME DEADLINE ON THEIR ENROLLMENT, WHICH THEY HAD TO MEET IN

  ORDER TO PARTICIPATE IN THE NEXT PRIMARY . . . THE PETITIONERS DO

  NOT SAY WHY THEY DID NOT ENROLL PRIOR TO THE CUTOFF DATE;

  HOWEVER, IT IS CLEAR THAT THEY COULD HAVE DONE SO, BUT CHOSE NOT

 TO.  HENCE, IF THEIR PLIGHT CAN BE CHARACTERIZED AS

DISENFRANCHISEMENT AT ALL, IT WAS NOT CAUSED BY SEC. 186, BUT BY

  THEIR OWN FAILURE TO TAKE TIMELY STEPS TO EFFECT THEIR

  ENROLLMENT."  ID., AT 757 - 758. 

EVEN THE FOUR DISSENTING MEMBERS OF THE COURT IN THE CASE WOULD HAVE
REQUIRED A "SERIOUS BURDEN OR INFRINGEMENT" ON THE RIGHT TO VOTE AS A
PREREQUISITE TO THE ESTABLISHMENT OF A CONSTITUTIONAL VIOLATION.  ID.,
AT 767 (POWELL, J., JOINED BY DOUGLAS, BRENNAN, AND MARSHALL, JJ.,
DISSENTING).  SEE ALSO ID., AT 765. 

IN THE IMMEDIATE CASE, APPELLEES AND THE CLASS OF NONRENDERERS THEY
REPRESENT COULD HAVE EASILY COMPLIED WITH THE RENDERING QUALIFICATION,
IMPOSED NOT ONLY AS A PREREQUISITE FOR VOTING BUT ALSO AS A LEGAL DUTY
NECESSARY TO THE ORDERLY OPERATION OF A VOLUNTARY SELF-ASSESSMENT
TAXING SYSTEM.  THE BURDEN IMPOSED BY THE QUALIFICATION WAS DE MINIMIS
AND COMPLIANCE WAS UNIVERSALLY EASY. 

DESPITE THIS, THE COURT, WITHOUT INQUIRY INTO THE IMPACT OF THE
TEXAS QUALIFICATION ON APPELLEES' ABILITY TO VOTE, CONCLUDES THAT THE
TEXAS SCHEME IS UNCONSTITUTIONAL.  ANTE, AT 298, 300 - 301. 

AS MIGHT BE EXPECTED WHEN DEALING WITH PROVISIONS OF STATE LAW IN
THE ABSTRACT, THE THEORETICAL ARGUMENTS ADVANCED BOTH IN SUPPORT OF THE
CONSTITUTIONALITY OF THE PROVISIONS INVOLVED HERE, AND AGAINST THEIR
CONSTITUTIONALITY, TEND TO CUT BOTH WAYS.  THE STATE CONTENDS THAT
BECAUSE ANYONE COULD HAVE COMPLIED WITH THE RENDERING QUALIFICATION,
THE BURDEN ON THE FRANCHISE IS MINIMAL.  THE COURT DISPOSES OF THIS
CONTENTION BY CONLCUDING THAT IN SUCH EVENT THE RENDERING REQUIREMENT
MUST SERVE NO VALID STATE POLICY.  THE STATE ALSO CONTENDS THAT THE
RENDERING REQUIREMENT DOES SERVE THE STATE POLICY OF INCREASING THE
AMOUNT OF PERSONAL PROPERTY ON THE TAX ROLLS, WHICH PROPERTY IN TURN
WILL BE TAXED TO RETIRE THE BONDED INDEBTEDNESS INCURRED AS A RESULT OF
THE ELECTION IN QUESTION.  THE COURT'S RESPONSE TO THIS CONTENTION IS
THAT IF THIS BE THE CASE, THE REQUIREMENT UNREASONABLY BURDENS THE
FRANCHISE.  THIS CONSTITUTIONAL DIALOGUE IS SOMEWHAT LESS THAN
EDIFYING, AND MAY BE TRACED IN PART TO THE DISCHOTOMY DRAWN BY KRAMER
V. UNION FREE SCHOOL DISTRICT NO. 15, SUPRA, WHERE ALL VOTING
QUALIFICATIONS IN AN "ELECTION OF GENERAL INTEREST,"  ANTE, AT 295,
WERE HERDED INTO TWO CATEGORIES.  THOSE DEALING WITH "RESIDENCE, AGE,
AND CITIZENSHIP," IBID., RECEIVED THE COURT'S IMPRIMATUR, WHILE THE
"STRICT SCRUTINY" TEST WAS TO BE APPLIED TO OTHER REQUIREMENTS.  THE
BASIS OF THIS JUDICIALLY CREATED CLASSIFICATION WOULD ITSELF SCARCELY
SURVIVE A "RATIONAL BASIS" TEST, UNEXPLAINED AS IT IS BY ANY OF OUR
DECISIONS.  BUT EVEN TAKING KRAMER ON ITS OWN TERMS, NO SOUND REASON IS
ADVANCED FOR APPLYING IT TO THE SITUATION BEFORE US NOW. 

THE COURT DISTINGUISHES, ANTE, AT 300 N. 9, OUR DECISION IN ROSARIO
ON THE GROUNDS THAT THE NEW YORK REGISTRATION REQUIREMENT INVOLVED IN
THAT CASE, UNLIKE THE TEXAS RENDERING QUALIFICATION FOR BOND ELECTIONS,
WAS DIRECTED TOWARD "PRESERVING) THE INTEGRITY OF THE ELECTORAL
PROCESS.'" 

AS A FACTUAL MATTER, THE OFFERED DISTINCTION IS A DOUBTFUL ONE.  THE
PURPOSE SOUGHT TO BE SERVED BY THE REGISTRATION REQUIREMENT EXAMINED IN
ROSARIO WAS THE PREVENTION OF "RAIDING":  THE CROSSING OF PARTY LINES
BY MEMBERS OF ONE PARTY IN ORDER TO AFFECT THE OUTCOME OF THE PRIMARY
ELECTION OF ANOTHER POLITICAL PARTY.  THE RENDERING QUALIFICATION UNDER
CHALLENGE IN THE INSTANT CASE IS DESIGNED IN PART TO PREVENT CITIZENS
WHO VIOLATE THEIR LEGAL OBLIGATIONS BY TOTALLY AVOIDING ANY PORTION OF
THEIR FAIR SHARE OF OBLIGATIONS RESULTING FROM A BOND ELECTION, HOWEVER
SMALL THAT SHARE MAY BE, FROM INFLUENCING THE PROCESS WHICH RESULTS IN
THE IMPOSITION OF SUCH OBLIGATIONS.  IF THE INTEGRITY OF THE ELECTORAL
PROCESS IS VIOLATED BY ALLOWING CITIZENS, WHO ARE UNWILLING TO ASSUME
THE RESPONSIBILITIES OF PARTY MEMBERSHIP, TO VOTE IN PARTY PRIMARIES,
IT IS DIFFICULT TO UNDERSTAND HOW IT IS LESS VIOLATED BY ALLOWING
CITIZENS, WHO ARE UNWILLING TO ASSUME THEIR FAIR SHARE OF THE
OBLIGATIONS OCCURRING FROM A BOND ELECTION, TO VOTE IN SUCH AN
ELECTION. 

AS THE COURT INDICATES, ANTE, AT 298 N. 7, APPELLEES AT ORAL
ARGUMENT ASSERTED THAT THE RENDERING REQUIREMENT IN PRACTICE FUNCTIONS
AS A PROPERTY-RELATED CLASSIFICATION SINCE REALTY AND BUSINESS
PERSONALTY MAKE UP VIRTUALLY ALL OF THE PROPERTY ACTUALLY SUBJECT TO
TAXATION IN FORT WORTH.  HOWEVER, APPELLEES ALSO CONCEDED THAT THEIR
ALLEGATION WAS WITHOUT SUPPORT IN THE RECORD IN THIS CASE.  TR. OF ORAL
ARG. 31.  TO THE EXTENT THAT THE RECORD DOES SPEAK TO APPELLEES'
ASSERTION, IT SHOWS THE RENDITION OF SUBSTANTIAL AMOUNTS OF PERSONAL
PROPERTY IN FORT WORTH AND IN THE STATE GENERALLY.  APP. 68, 81 - 84. 
WHILE ONE MEMBER OF THE THREE-JUDGE PANEL BELOW INDICATED HIS SUSPICION
THAT THE RENDERING REQUIREMENT OPERATED AS A DE FACTO EXCLUSION OF
NONREAL PROPERTY OWNERS, ANOTHER MEMBER OF THE PANEL INDICATED HIS
DISAGREEMENT.  COMPARE 377 F. SUPP. 1016, 1020 (OPINION OF THORNBERRY,
J.), WITH ID., AT 1025 (OPINION OF WOODWARD, J., SPECIALLY
CONCURRING).  IN LIGHT OF THE SERIOUS QUESTION RAISED BY THIS
DISAGREEMENT AND THE ABSENCE OF EVIDENCE IN THE RECORD RESOLVING IT, I
WOULD VACATE THE JUDGMENT BELOW AND REMAND THIS CASE FOR FACTUAL
DETERMINATION OF WHETHER THE RENDERING REQUIREMENT AS ADMINISTERED IN
TEXAS HAS THE PRACTICAL EFFECT OF IMPERMISSBLY DISFRANCHISING
IDENTIFIABLE GROUPS OF VOTERS SUCH AS NONREAL PROPERTY OWNERS AND
THEREBY CONSTITUTES A GENUINE BURDEN ON THE FRANCHISE.  CF. CITY OF
PHOENIX V. KOLODZIEJSKI, 399 U.S. 204 (1970). 

DAVID M. KENDALL, FIRST ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED
THE CAUSE FOR APPELLANT.  ON THE BRIEF WERE JOHN L. HILL, ATTORNEY
GENERAL, PRO SE, LARRY F. YORK, FORMER FIRST ASSISTANT ATTORNEY
GENERAL, AND MIKE WILLATT AND G. CHARLES KOBDISH, ASSISTANT ATTORNEYS
GENERAL. 

DON GLADDEN ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
FOR APPELLEES STONE ET AL. WAS MARVIN COLLINS.  S.G. JOHNDROE, JR.,
FILED A BRIEF FOR APPELLEES CITY OF FORT WORTH ET AL. 

EDWARD W. DUNBAR FILED A BRIEF FOR EL PASO COUNTY JUNIOR COLLEGE
DISTRICT AS AMICUS CURIAE URGING AFFIRMANCE. 

BRIEFS OF AMICI CURIAE WERE FILED BY JAMES F. MC KIBBEN, JR., FOR
THE CITY OF CORPUS CHRISTI; BY MARSHALL BOYKIN III FOR WILLIAM O.
HARRISON, JR., ET AL.; AND BY JOE PURCELL, MANLY W. MUMFORD, FRED H.
ROSENFELD, AND HAROLD B. JUDELL FOR THE CITY OF PHOENIX ET AL.
..END :











COLONIAL PIPELINE CO. V. TRAIGLE, 421 U.S. 100 


       COLONIAL PIPELINE CO. V. TRAIGLE, COLLECTOR OF REVENUE OF

           LOUISIANA

        APPEAL FROM THE SUPREME COURT OF LOUISIANA

        NO. 73 - 1595.  ARGUED JANUARY 13, 1975-DECIDED APRIL 28,

           1975.  289 SO.2D 93, AFFIRMED. 


    LOUISIANNA'S FAIRLY APPORTIONED AND NONDISCRIMINATORY

  CORPORATION FRANCHISE TAX UPON THE "INCIDENT" OF THE

 "QUALIFICATION TO CARRY ON OR DO BUSINESS IN THIS STATE OR THE

  ACTUAL DOING OF BUSINESS WITHIN THIS STATE IN A CORPORATE FORM"

  DOES NOT VIOLATE THE COMMERCE CLAUSE AS APPLED TO APPELLANT, AN

  INTERSTATE CARRIER OF LIQUEFIED PETROLEUM PRODUCTS INCORPORATED

  IN DELEWARE WITH ITS PRINCIPAL PLACE OF BUSINESS IN ATLANTA,

  GEORGIA, WHICH DOES NO INTRASTATE BUSINESS IN PETROLEUM PRODUCTS

  IN LOUISIANA BUT HAS EMPLOYEES THERE TO INSPECT AND MAINTAIN ITS

  PIPELINE, PUMPING STATIONS, AND RELATED FACILITIES IN THAT

  STATE.  "(THE DECISIVE ISSUE TURNS ON THE OPERATING INCIDENCE OF

  THE TAX," GENERAL MOTORS CORP. V. WASHINGTON, 377 U.S. 436, 441,

  AND "(THE SIMPLE BUT CONTROLLING QUESTION IS WHETHER THE STATE

  HAS GIVEN ANYTHING FOR WHICH IT CAN ASK RETURN," WISCONSIN V.

  J.C. PENNEY CO., 311 U.S. 435, 444.  BECAUSE APPELLANT, AS A

  FOREIGN CORPORATION QUALIFIED TO CARRY ON, AND CARRYING ON, ITS

  BUSINESS IN LOUISIANA IN CORPORATE FORM, GAINED BENEFITS AND

  PROTECTIONS FROM THAT STATE OF VALUE AND IMPORTANCE TO ITS

  BUSINESS, IT CAN BE REQUIRED THROUGH THE FRANCHISE TAX TO PAY ITS

  JUST SHARE.  MEMPHIS GAS CO. V. STONE, 355 U.S. 80 PP. 108 -

114. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND WHITE, MARSHALL, AND POWELL, JJ., JOINED. 

  BLACKMUN, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN

  WHICH REHNQUIST, J., JOINED, POST, P. 114.  STEWART, J., FILED A

  DISSENTING OPINION, POST, P. 116.  DOUGLAS, J., TOOK NO PART IN

  THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BREHNAN DELIVERED THE OPINION OF THE COURT. 

WE HAVE ONCE AGAIN A CASE THAT PRESENTS "THE PERENNIAL PROBLEM OF THE
VALIDITY OF A STATE TAX FOR THE PRIVILEGE OF CARRYING ON, WITHIN A
STATE, CERTAIN ACTIVITIES" RELATED TO A CORPORATION'S OPERATION OF AN
INTERSTATE BUSINESS.  MEMPHIS GAS CO. V. STONE, 355 U.S. 80, 85
(1948).  /1/ THE ISSUE IS WHETHER LOUISIANA, CONSISTENT WITH THE
COMMERCE CLAUSE, ART. I, SEC. 8, CL. 3, MAY IMPOSE A FAIRLY APPORTIONED
AND NONDISCRIMINATORY CORPORATION FRANCHISE TAX ON APPELLANT, COLONIAL
PIPELINE CO., A CORPORATION ENGAGED EXCLUSIVELY IN INTERSTATE BUSINESS,
UPON THE "INCIDENT" OF ITS "QUALIFICATION TO CARRY ON OR DO BUSINESS IN
THIS STATE OR THE ACTUAL DOING OF BUSINESS WITHIN THIS STATE IN A
CORPORATE FORM."  NO QUESTION IS RAISED AS TO THE REASONABLENESS OF THE
APPORTIONMENT OF APPELLANT'S CAPITAL DEEMED TO HAVE BEEN EMPLOYED IN
LOUISIANA, AND IT IS NOT CLAIMED THAT THE TAX IS DISCRIMINATORY.  THE
SUPREME COURT OF LOUISIANA SUSTAINED THE VALIDITY OF THE TAX.  289
SO.2D 93 (1974).  WE NOTED PROBABLE JURISDICTION, 417 U.S. 966 (1974). 
WE AFFIRM. 

        I 

APPELLANT IS A DELAWARE CORPORATION WITH ITS PRINCIPAL PLACE OF
BUSINESS IN ATLANTA, GA.  IT IS A COMMON CARRIER OF LIQUEFIED PETROLEUM
PRODUCTS AND OWNS AND OPERATES A PIPELINE SYSTEM EXTENDING FROM
HOUSTON, TEX., TO THE NEW YORK CITY AREA.  THIS 3,400-MILE PIPELINE
LINKS THE OIL REFINING COMPLEXES OF TEXAS AND LOUISIANA WITH THE
POPULATION CENTERS OF THE SOUTHEAST AND NORTHEAST.  APPELLANT DAILY
DELIVERS MORE THAN ONE MILLION GALLONS OF PETROLEUM PRODUCTS TO 14
STATES AND THE DISTRICT OV COLUMBIA.  APPROXIMATELY 258 MILES OF THE
PIPELINE ARE LOCATED IN LOUISIANA.  OVER THIS DISTANCE WITHIN
LOUISIANA, APPELLANT OWNS AND OPERATES SEVERAL PUMPING STATIONS WHICH
KEEP THE PETROLEUM PRODUCTS FLOWING AS A SUSTAINED RATE, AND VARIOUS
TANK STORAGE FACILITIES USED TO INJECT OR WITHDRAW PETROLEUM PRODUCTS
INTO OR FROM THE LINE.  A WORK FORCE OF 25 TO 30 EMPLOYEES--
MECHANICS, ELECTRICIANS, AND OTHER WORKERS--INSPECT AND MAINTAIN THE
LINE WITHIN THE STATE.  DURING THE TAX YEARS IN QUESTION, 1970 AND
1971, APPELLANT MAINTAINED NO ADMINISTRATIVE OFFICES OR PERSONNEL IN
LOUISIANA, ALTHOUGH IT HAD ONCE MAINTAINED A DIVISION OFFICE IN BATON
ROUGE.  APPELLANT DOES NO INTRASTATE BUSINESS IN PETROLEUM PRODUCTS IN
LOUISIANA. 

ON MAY 9, 1962, APPELLANT VOLUNTARILY QUALIFIED TO DO BUSINESS IN
LOUISIANA, ALTHOUGH IT COULD HAVE CARRIED ON ITS INTERSTATE BUSINESS
WITHOUT DOING SO.  LA. REV. STAT. ANN. SEC. 12:302H (1969); SEE N. 8,
INFRA.  THEREUPON, THE COLLECTOR OF REVENUE IMPOSED THE LOUISIANA
FRANCHISE TAX ON APPELLANT'S ACTIVITIES IN THE STATE DURING 1962.  AT
THAT TIME LA. REV. STAT. ANN. SEC. 47:601, THE LOUISIANA FRANCHISE TAX
ACT, EXPRESSLY PROVIDED:  " THE TAX LEVIED HEREIN IS DUE AND PAYABLE
FOR THE PRIVILEGE OF CARRYING ON OR DOING BUSINESS, THE EXERCISING OF
ITS CHARTER OR THE CONTINUANCE OF ITS CHARTER WITHIN THIS STATE, OR
OWNING OR USING ANY PART OR ALL OF ITS CAPITAL OR PLANT IN THIS
STATE."  /2/ (EMPHASIS SUPPLIED.) 

APPELLANT PAID THE TAX AND SUED FOR A REFUND.  THE LOUISIANA COURT
OF APPEAL, FIRST CURCUIT, HELD THAT, IN THAT FORM, SEC. 601 WAS
UNCONSTITUTIONAL AS APPLIED TO APPELLANT BECAUSE, BEING IMPOSED
DIRECTLY UPON "THE PRIVILEGE OF CARRYING ON OR DOING (INTERSTATE)
BUSINESS," IT VIOLATED THE COMMERCE CLAUSE, ART. I, SEC. 8, CL. 3. 
COLONIAL PIPELINE CO. V. MOUTON, 228 SO.2D 718 (1969).  THE SUPREME
COURT OF LOUISIANA REFUSED REVIEW.  255 LA. 474, 231 SO.2D 393 (1970). 
/3/ 

FOLLOWING THIS DECISION, THE LOUISIANA LEGISLATURE AMENDED LA. REV.
STAT. ANN. SEC. 47:601 BY ACT 325 OF 1970.  THE AMENDMENT EXCISED FROM
SEC. 601 THE WORDS:  " THE TAX LEVIED HEREIN IS DUE AND PAYABLE FOR THE
PRIVILEGE OF CARRYING ON OR DOING BUSINESS," AND SUBSTITUTED:  " THE
QUALIFICATION TO CARRY ON OR DO BUSINESS IN THIS STATE OR THE ACTUAL
DOING OF BUSINESS WITHIN THIS STATE IN A CORPORATE FORM," AS ONE OF
THREE "ALTERNATIVE INCIDENTS" UPON WHICH THE TAX MIGHT BE IMPOSED.  THE
OTHER TWO "INCIDENTS"--, THE EXERCISE OF THE CORPORATE CHARTER IN THE
STATE, AND THE EMPLOYMENT THERE OF ITS CAPITAL, PLANT, OR OTHER
PROPERTY--, WERE CARRIED FORWARD FROM THE EARLIER VERSION OF THE
STATUTE.  /4/  SEE N. 2, SUPRA. 

THE COLLECTOR OF REVENUE THAN RENEWED HIS EFFORTS TO IMPOSE A TAX ON
APPELLANT, THIS TIME FOR DOING BUSINESS "IN A CORPORATE FORM" DURING
1970 AND 1971.  AGAIN, APPELLANT PAID THE TAX AND SUED FOR A REFUND. 
THE LOUISIANA DISTRICT COURT ADN THE COURT OF APPEAL, FIRST CURCUIT,
CONCLUDED THAT THE 1970 AMENDMENT MADE NO SUBSTANTIVE CHANGE IN SEC.
601, WHICH IT CONSTRUED AS STILL IMPOSING THE TAX DIRECTLY UPON THE
PRIVILEGE OF CARRYING ON OR DOING AN INTERSTATE BUSINESS, AND HELD THAT
ANENDED SEC. 601 WAS THEREFORE UNCONSTITUTIONAL AS APPLIED TO
APPELLANT.  275 SO.2D 834 (1973). 

THE SUPREME COURT OF LOUISIANA REVERSED.  THE COURT RECOGNIZED THAT
"(THE PERTINENT CONSTITUTIONAL QUESTION IS WHETHER, AS APPLIED TO A
CORPORATION WHOSE EXCLUSIVE BUSINESS CARRIED ON WITHIN THE STATE IS
INTERSTATE, THIS STATUTE VIOLATES THE COMMERCE CLAUSE OF THE UNITED
STATES CONSTITUTION."  289 SO.2D, AT 97.  BUT THE COURT ATTACHED
CONTROLLING SIGNIFICANCE TO THE OMISSION FROM THE AMENDED STATUTE OF
THE "PRIMARY OPERATING INCIDENT (OF THE FORMER VERSION), I.E., 'THE
PRIVILEGE FO CARRYING ON OR DOING BUSINESS,'" ID., AT 96, AND THE
SUBSTITUTION FOR THAT INCIDENT OF DOING BUSINESS IN THE CORPORATE
FORM.  THE COURT HELD:  " THE THRUST OF THE (AMENDED) STATUTE IS TO TAX
NOT THE INTERSTATE BUSINESS DONE IN LOUISIANA BY A FORIEGN CORPORATION,
BUT THE DOING OF BUSINESS IN LOUISIANA IN A CORPORATE FORM, INCLUDING
'EACH AND EVERY ACT, POWER, RIGHT, PRIVILEGE OR IMMINITY EXERCISED OR
ENJOYED IN THIS STATE, AS AN INCIDENT TO OR BY VIRTUE OF THE POWERS AND
PRIVILEGES ACQUIRED BY THE NATURE OF SUCH ORGANIZATIONS....'"  ID., AT
97.  ACCORDINGLY, THE COURT CONCLUDED THAT AMENDED SEC. 601 APPLIED THE
FRANCHISE TAX TO FOREIGN CORPORATIONS DOING ONLY AN INTERSTATE BUSINESS
IN LOUISIANA NOT AS A TAX UPON "THE GENERAL PRIVILEGE OF DOING
INTERSTATE BUSINESS BUT SIMPLY (AS A TAX UPON) THE CORPORATION'S
PRIVILEGE OF ENJOYING IN A CORPORATE CAPACITY THE OWNERSHIP OR USE OF
ITS CAPITAL, PLANT OR OTHER PROPERTY IN THIS STATE, THE CORPORATION'S
PRIVILEGE OF EXERCISING AND CONTINUING ITS CORPORATE CHARACTER IN THE
STATE OF LOUISIANA, AND THE CORPORATION'S USE OF ITS CORPORATE FORM TO
DO BUSINESS IN THE STATE."  ID., AT 100.  UPON THE PREMISE, THE COURT
VALIDATED THE LEVY AS A CONSTITUTIONAL EXACTION FOR PRIVILEGES ENJOYED
BY CORPORATIONS IN LOUISIANA AND FOR BENEFITS FURNISHED BY THE STATE TO
ENTERPRISES CARRYING ON BUSINESS, INTERSTATE OR LOCAL, IN THE CORPORATE
FORM, WHETHER AS DOMESTIC OR FOREIGN CORPORATIONS.  THE COURT
REASONED: 

     " THE CORPORATION, INCLUDING THE FOREIGN CORPORATION DOING
ONLY

  INTERSTATE BUSINESS IN LOUISIANA, ENJOYS UNDER OUT LAWS MAY

  PRIVELEGES SEPARATE AND APART FROM SIMPLY DOING BUSINESS, SUCH

  FOR INSTANCE AS THE LEGAL STATUS TO SUE AND BE SUED IN THE COURTS

  OF OUR STATE, CONTINUITY OF BUSINESS WITHOUT INTERRUPTION BY

DEATH OR DISSOLUTION, TRANSFER OF PROPERTY INTERESTS BY THE

 DISPOSITION OF SHARES OF STOCK, ADVANTAGES OF BUSINESS CONTROLLED

  AND MANAGED BY CORPORATE DIRECTORS, AND THE GENERAL ABSENCE OF

  INDIVIDUAL LIABILITY, AMONG OTHERS. 

     * * * * * 

     " THE FACT THAT THE CORPORATE FORM OF DOING BUSINESS IS

  INEXTRICABLY INTERWOVEN IN A FOREIGN CORPORATION'S DOING

  INTERSTATE BUSINESS IN THE STATE, DOES NOT IN OUR VIEW DETRACT

  FROM THE FACT THAT THE LOCAL INCIDENT TAXED IS THE FORM OF DOING

  BUSINESS RATHER THAN THE BUSINESS DONE BY THAT CORPORATION.  AND

  IT IS OUR VIEW THAT THE LOCAL INCIDENT IS REAL AND SUFFICIENTLY

DISTINGUISHABLE, SO THAT TAXATION THEREOF DOES NOT, UNDER THE

  CONTROLLING DECISIONS OF THE UNITED STATES SUPREME COURT, VIOLATE

  THE COMMERCE CLAUSE. 

     " THE STATUTE DOES NOT DISCRIMINATE BETWEEN FOREIGN AND LOCAL

  CORPORATIONS, BEING APPLICABLE, AS IT IS, TO BOTH.  NOR DO WE

  BELIEVE THAT THE STATE'S EXERCISE OF ITS POWER TY THIS TAXING

STATUTE IS OUT OF PROPORTION TO COLONIAL'S ACTIVITIES WITHIN THE

  STATE AND THEIR CONSEQUENT ENJOYMENT OF THE OPPORTUNITIES AND

  PROTECTION WHICH THE STATE HAS AFFORDED THEM. 

     " FURTHERMORE WE BELIEVE THAT THE STATE HAS GIVEN SOMETHING
FOR

  WHICH IT CAN ASK RETURN.  THE RETURN, TAX LEVY IN THIS CASE, IS

  AN EXACTION WHICH THE STATE OF LOUISIANA REQUIRES AS A RECOMPENSE

  FOR ITS PROTECTION OF LAWFUL ACTIVITIES CARRIED ON IN THIS STATE

  BY COLONIAL, ACTIVITIES WHICH ARE INCIDENTAL TO THE POWERS AND

  PRIVILEGES POSSESSED BY IT BY THE NATURE OF ITS ORGANIZATION,

  HERE,...THE LOCAL ACTIVITIES IN MAINTAINING, KEEPING IN REPAIR,

  AND OTHERWISE IN MANNING THE FACILITIES OF THEIR PIPELINE SYSTEM

  THROUGHOUT THE 258 MILES OF ITS PIPELINE IN THE STATE OF

  LOUISIANA."  ID., AT 100 - 101.  /5/ 

THIS COURT IS, OF COURSE, NOT BOUND BY THE STATE COURT'S
DETERMINATION THAT THE CHALLENGED TAX IS NOT A TAX ON INTERSTATE
COMMERCE.  " THE STATE MAY DETERMINE FOR ITSELF THE OPERATING INCIDENCE
OF ITS TAX.  BUT IT IS FOR THIS COURT TO DETERMINE WHETHER THE TAX, AS
CONSTRUED BY THE HIGHEST COURT OF THE STATE, IS OR IS NOT 'A TAX ON
INTERSTATE COMMERCE.'"  MEMPHIS STEAM LAUNDRY V. STONE, 342 U.S. 389,
392 (1952).  WE THEREFORE TURN TO THE QUESTION WHETHER THE TAX IMPOSED
UPON APPELLANT UNDER AMENDED SEC. 601, AS CONSTRUED BY THE LOUISIANA
SUPREME COURT, IS OR IS NOT A TAX ON INTERSTATE COMMERCE. 

        II 

IT IS A TRUISM THAT THE MERE ACT OF CARRYING ON BUSINESS IN
INTERSTATE COMMERCE DOES NOT EXEMPT A CORPORATION FROM STATE
TAXIATION.  IT WAS NOT THE PUPPOSE OF THE COMMERCE CLAUSE TO RELIEVE
THOSE ENGAGED IN INTERSTATE COMMERCE FROM THRIR JUST SHARE OF STATE TAX
BURDEN EVEN THOUGH IT INCREASES THE COST OF DOING THE BUSINESS." 
SESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 254 (1938). 
ACCORDINGLY, DECISIONS OF THIS COURT, PARTICULARLY DURING RECENT
DECADES, HAVE SUSTAINED NONDISCRIMINATORY, PROPERLY APPORTIONED STATE
CORPORATE TAXES UPON FOREIGN CORPORATIONS DOING AN EXCLUSIVELY
INTERSTATE BUSINESS WHEN THE TAX IS RELATED TO A CORPORATION'S LOCAL
ACTIVITIES AND THE STATE HAS PROVIDED BENEFITS AND PROTECTIONS FOR
THOSE ACTIVITIES FOR WHICH IT IS JUSTIFIED IN ASKING A FAIR AND
REASONABLE RETURN.  /6/ GENERAL MOTORS CORP. V. WASHINGTON, 377 U.S.
436 (1964); MEMPHIS GAS CO. V. STONE, 335 U.S. 80 (1948).  CF. SPECTOR
MOTOR SERVICE V. O' CONNOR, 340 U.S. 602 (1951).  GENERAL MOTORS CORP.,
SUPRA, STATES THE CONTROLLING TEST: 

"(THE VALIDITY OF THE TAX RESTS UPON WHETHER THE STATE IS EXACTING A
CONSTITUTIONALLY FAIR DEMAND FOR THAT ASPECT OF INTERSTATE COMMERCE TO
WHICH IT BEARS A SPECIAL RELATION.  FOR OUR PURPOSES THE DECISIVE ISSUE
TURNS ON THE OPERATING INCIDENCE OF THE TAX.  IN OTHER WORDS, THE
QUESTION IS WHETHER THE STATE HAS EXERTED ITS POWER IN PROPER
PROPORTION TO APPELLANT'S ACTIVITIES WITHIN THE STATE AND TO
APPELLANT'S CONSEQUENT ENJOYMENT OF THE OPPORTUNITIES AND PROTECTIONS
WHICH THE STATE HAS AFFORDED.  . . . AS WAS SAID IN WISCONSIN V. J.C.
PENNEY CO., 311 U.S. 435, 444 (1940), '(THE SIMPLE BUT CONTROLLING
QUESTION IS WHETHER THE STATE HAS GIVEN ANYTHING FOR WHICH IT CAN ASK
RETURN.'"  377 U.S., AT 440 - 441.  AMENDED SEC. 601 AS APPLIED TO
APPELLANT SATISFIES THIS TEST.  FIRST, THE SUPREME COURT OF LOUISIANA
HELD THAT THE OPERATING INCIDENCES OF THE FRANCHISE TAX ARE THE THREE
LOCALIZED ALTERNATIVE INCIDENCES PROVIDED IN SEC. 601:  (1) DOING
BUSINESS IN LOUISIANA IN THE CORPORATE FORM; (2) THE EXERCISE OF A
CORPORATION'S CHARTER OR THE CONTINUANCE OF ITS CHARTER WITHIN THE
STATE; AND (3) THE OWNING OR USING ANY PART OF ITS CIPITAL, PLANT, OR
OTHER PROPERTY IN LOUISIANA IN A CORPORATE CAPACITY.  WE NECESSARILY
ACCEPT THIS CONSTRUCTION OF AMENDED SEC. 601 BY LOUISIANA'S HIGHEST
COURT.  289 SO.2D, AT 97.  SECOND, THE COURT FOUND THAT THE POWERS,
PRIVILEGES, AND BENEFITS LOUISIANA BESTOWS INCIDENT TO THESE ACTIVITIES
WERE SUFFICIENT TO SUPPORT A TAX ON DOING BUSINESS IN THE CORPORATE
FORM IN THE STATE.  WE PERCEIVE NO BASIS UPON WHICH WE CAN SAY THAT
THIS IS NOT IN FACT THE CASE.  OUR PERTINENT PRECEDENTS THEREFORE
REQUIRE AFFIRMANCE OF THE STATE SUPREME COURT'S JUDGMENT. 

MEMPHIS GAS CO. V. STONE, SUPRA, SUSTAINED A SIMILAR FRANCHISE TAX
IMPOSED BY MISSISSIPPI ON A FOREIGN PIPELINE CORPORATION ENGAGED
EXCLUSIVELY IN AN INTERSTATE BUSINESS EVEN THOUGH THE COMPANY HAS NOT
QUALIFIED IN MISSISSIPPI.  MEMPHIS NATURAL GAS CO., A DELAWARE
CORPORATION, OWNED AND OPERATED A NATURAL GAS PIPELINE EXTENDING FROM
LOUISIANA, THROUGH ARKANSAS AND MISSISSIPPI, TO MEMPHIS AND OTHER PARTS
OF TENNESSEE.  APPROXIMATELY 135 MILES OF THE PIPELINE WERE LOCATED IN
MISSISSIPPI, AND TWO OF THE CORPORATION'S COMPRESSING STATIONS WERE
LOCATED IN THAT STATE.  THE CORPORATION ENGAGED IN NO INTRASTATE
COMMERCE IN MISSISSIPPI, AND HAS ONLY ONE CUSTOMER THERE.  IT HAD NOT
QUALIFIED UNDER THE CORPORATION LAWS OF MISSISSIPPI.  IT HAD NEITHER AN
AGENT FOR THE SERVICE OF PROCESS NOT AN OFFICE IN THAT STATE, AND ITS
ONLY EMPLOYEES THERE WERE THOSE NECESSARY FOR THE MAINTENANCE FO THE
PIPELINE.     THE CORPORATION PAID ALL AD VALOREM TAXES ASSESSED
AGAINST ITS PROPERTY IN MISSISSIPPI.  IN ADDITION TO THESE TAXES,
HOWEVER, MISSISSIPPI IMPOSED A "FRANCHISE OR EXCISE TAX" UPON ALL
CORPORATIONS "DOING BUSINESS" WHTHIN THE STATE.  THE STATUTE DEFINED
"DOING BUSINESS" IN TERMS THAT SUGGEST IT MAY HAVE BEEN THE MODEL FOR
SEC. 601, THAT IS, "(TO) MEAN AND (TO) INCLUDE EACH AND EVERY ACT,
POWER OR PRIVILEGE EXERCISED OR ENJOYED IN THIS STATE, AS AN INCIDENT
TO, OR BY VIRTUE OF THE POWERS AND PRIVILEGES ACQUIRED BY THE NATURE OF
SUCH ORGANIZATION."  335 U.S., AT 82.  /7/ THE SUPREME COURT OF
MISSISSIPPI HELD, AS DID THE SUPREME COURT OF LOUISIANA HERE, 289
SO.2D, AT 101, THAT THE TAX WAS "'AN EXACTION.  . .AS A RECOMPENSE
FOR.  . .PROTECTION OF. . .THE LOCAL ACTIVITIES IN MAINTAINING, KEEPING
IN REPAIR, AND OTHERWISE MANNING THE FACILITIES OF THE SYSTEM
THROUGHOUT THE 135 MILES OF ITS LINE IN THIS STATE.'"  335 U.S., AT
84.  IN AFFIRMING THE JUDGMENT OF THAT COURT, MR. JUSTICE REED, IN A
PLURALITY OPINION, SAID: 

" WE THINK THAT THE STATE IS WITHIN ITS CONSTITUTIONAL RIGHTS IN
EXACTING COMPENSATION UNDER THIS STATUTE FOR THE PROTECTION IT AFFORDS
THE ACTIVITIES WITHIN ITS BORDERS.  OF COURSE, THE INTERSTATE COMMERCE
COULD NOT BE CONDUCTED WITHOUT THESE LOCAL ACTIVITIES.  BUT THAT FACT
IS NOT CONCLUSIVE.  THIS IS A TAX ON ACTIVITIES FOR WHICH THE STATE,
NOT THE UNITED STATES, GIVES PROTECTION AND THE STATE IS ENTITLED TO
COMPENSATION WHEN ITS TAX CANNOT BE SAID TO BE AN UNREASONABLE BURDEN
OR A TOLL ON THE INTERSTATE BUSINESS."  ID., AT 96. 

THIS CONCLUSION IS EVEN MORE COMPELLED IN THE INSTANT CASE SINCE
APPELLANT VOLUNTARILY QUALIFIED UNDER LOUISIANA LAW AND THEREFORE
ENJOYS THE SAME RIGHTS AND PRIVILEGES AS A DOMESTIC CORPORATION.  LA.
REV. STAT. ANN. SEC. 12:306 (2)(SUPP.  1975).  /8/ THE LOUISIANN
SUPREME COURT DEFINED APPELLANT'S POWERS AND PRIVELEGES AS INCLUDING
"THE LEGAL STATUS TO SUE AND BE SUED IN THE COURTS OF OUR STATE,
CONTINUITY OF BUSINESS WITHOUT INTERRUPTION BY DEATH OR DISSOLUTION,
TRANSFER OF PROPERTY INTERESTS BY THE DISPOSITION OF SHARES OF STOCK,
ADVANTAGES OF BUSINESS CONTROLLED AND MANAGED BY CORPROATE DIRECTORS,
AND THE GENERAL ABSENCE OF INDIVIDUAL LIABILITY ...."  289 SO.2D, AT
100.  THESE PRIVILEGES OBVIOUSLY ENHANCE THE VALUE TO APPELLANT OF ITS
ACTIVITIES WITHIN LOUISIANA.  SEE SOUTHERN GAS CORP. V. ALABAMA, 301
U.S. 148, 153 (1937); STONE V. INTERSTATE NATURAL GAS CO., 103 F.2D 544
(CA5), AFF'D, 308 U.S. 522 (1939).  CF. RAILWAY EXPRESS AGENCY V.
VIRGINIA (RAILWAY EXPRESS II), 358 U.S. 434 (1959). 

        III 

NEVERTHELESS, APPELLANT CONTENDS THAT SPECTOR MOTOR SERVICE V. O'
CONNOR, 340 U.S. 602 (1951), AND RAILWAY EXPRESS AGENCY V. VIRGINIA
(RAILWAY EXPRESS I), 347 U.S. 359 (1954), REQUIRE THE CONCLUSION THAT
SEC. 601 IS UNCONSTITUTIONAL AS APPLED TO APPELLANT.  THE ARGUMENT IS
WITHOUT MERIT.  SPECTOR HELD INVALID UNDER THE COMMERCE CLAUSE A
CONNECTICUT TAX BASED EXPRESSLY "UPON (THE CORPORATION'S) FRANCHISE FOR
THE PRIVILEGE OF CARRYING ON OR DOING BUSINESS WITHIN THE STATE ...." 
SIMILARLY, RAILWAY EXPRESS I INVALIDATED VIRGINIA'S "ANNUAL LICENSE
TAX" IMPOSED ON EXPRESS COMPANIES EXPRESSLY "FOR THE PRIVILEGE OF DOING
BUSINESS" IN THE STATE.  THUS BOTH TAXES, AS EXPRESS IMPOSTS UPON THE
PRIVILEGE OF CARRYING ON AN EXXLUSIVELY INTERSTATE BUSINESS, CONTAINED
THE SAME FATAL CONSTITUTIONAL FLAW THAT LED THE LOUISIANA COURT OF
APPEAL TO STRIKE DOWN THE LEVY AGAINST APPELLANT UNDER SEC. 601 BEFORE
ITS AMENDMENT IN 1970.  " A TAX IS (AN UNCONSTITUTIONAL) DIRECT BURDEN,
IF LAID UPON THE OPERATION OR ACT OF INTERSTATE COMMERCE."  OZARK PIPE
LINE V. MONIER, 266 U.S. 555, 569 (1925) (BRANDEIS, J., DISSENTING). 
THE 1970 AMENDMENT HOWEVER REPEALED THAT UNCONSTITUTIONAL BASIS FOR THE
TAX, AND MADE SEC 601 CONSTITUTIONAL BY LIMITING ITS APPLICATION TO
OPERATING INCIDENCE OF ACTIVITIES WITHIN LOUISIANA FOR WHICH THE STATE
AFFORDS PRIVILEGES AND PROTECTIONS THAT CONSTITUTIONALLY ENTITLE
LOUISIANA TO EXACT A FAIRLY APPORTIONED AND NON-DISCRIMINATORY TAX. 
SPECTOR EXPRESSLY RECOGNIZED:  " THE INCIDENCE OF THE TAX PROVIDES THE
ANSWER.... THE STATE IS NOT PRECUUDED FORM IMPOSING THSES UPON OTHER
ACTIVITIES OR ASPECTS OF THIS BUSINESS WHICH, UNLIKE THE PRIVILEGE OF
DOING INTERSTATE BUSINESS, ARE SUBJECT TO THE SOVEREIGN POWER OF THE
STATE."  340 U.S., AT 608 - 609.  /9/ 

OF COURSE, AN OTHERWISE UNCONSTITUTIONAL TAX IS NOT MADE THE LESS SO
BY MASKING IT IN WORDS CLOAKING ITS ACTUAL THRUST.  RAILWAY EXPRESS II,
358 U.S., AT 441; RAILWAY EXPRESS I, 347 U.S., AT 363; GALVESTON, H. &
S.A.R. CO. V. TEXAS, 210 U.S. 217, 227 (1908).  "IT IS NOT A MATTER OF
LABELS."  SPECTOR, SUPRA, AT 608.  HERE, HOWEVER, THE LOUISIANA
LEGISLATURE AMENDED SEC. 601 PURPOSEFULLY TO REMOVE ANY BASIS OF A LEVY
UPON THE PRIVILEGE OF CARRYING ON AN INTERSTATE BUSINESS AND NARROWLY
TO CONFINE THE IMPOST TO ONE RELATED TO APPELLANT'S ACTIVITIES WITHIN
THE STATE IN THE CORPORATE FORM.  SINCE APPELLANT, A FOREIGN
CORPORATION QUALIFIED TO CARRY ON ITS BUSINESS IN CORPORATE FORM, AND
DOING BUSINESS IN LOUISIANA IN THE CORPORATE FORM, THEREBY GAINED
BENEFITS AND PROTECTIONS FROM LOUISIANA OF VALUE AND IMPORTANCE TO ITS
BUSINESS, THE APPLICATION OF THAT STATE'S FAIRLY APPORTIONED AND NON
DISCRIMINATORY LEVY TO APPELLANT DOES NOT OFFEND THE COMMERCE CLAUSE. 
THE TAX CANNOT BE SAID TO BE IMPOSED UPON APPELLANT MERELY OR SOLELY
FOR THE PRIVILEGE OF DOING INTERSTATE BUSINESS IN LOUISIANA.  IT IS
RATHER, A FAIRLY APPORTIONED AND NONDISCRIMINATORY MEANS OF REQUIRING
APPELLANT TO PAY ITS JUST SHARE OF THE COST OF STATE GOVERNMENT UPON
WHICH APPELLANT NECESSARILY RELIES AND BY WHICH IT IS FURNISHED
PROTECTION AND BENEFITS. 

                       AFFIRMED. 

/1/ " THIS COURT ALONE HAS HANDED DOWN SOME THREE HUNDRED FULLDRESS
OPINIONS SPREAD THROUGH SLIGHTLY MORE THAN THAT NUMBER OF OUR
REPORTS.... (THE DECISIONS HAVE BEEN 'NOT ALWAYS CLEAR... CONSISTENT OR
RECONCILABLE.'"  NORTHWESTERN CEMENT CO. V. MINNESOTA, 358 U.S. 450,
457 - 458 (1959). 

/2/ LOUISIANA REV. STAT. ANN. SEC. 47:601 PROVIDED IN 1963: 

" EVERY DOMESTIC CORPORATION AND EVERY FOREIGN CORPORATION,
EXERCISING ITS CHARTER, AUTHORIZED TO DO OR DOING BUSINESS IN THIS
STATE, OR OWNING OR USING ANY PART OR ALL OF ITS CAPITAL OR PLANT IN
THIS STATE, SUBJECT TO COMPLIANCE WITH ALL OTHER PROVISIONS OF LAW,
EXCEPT AS OTHERWISE PROVIDED FOR IN THIS CHAPTER, SHALL PAY A TAX AT
THE RATE OF ONE DOLLAR AND 50/100 ($1.50) FOR EACH ONE THOUSAND DOLLARS
($1,000.00), OR MAJOR FRACTION THEREOF ON THE AMOUNT OF ITS CAPITAL
STOCK, SURPLUS, UNDIVIDED PROFITS, AND BORROWED CAPITAL, DETERMINED AS
HEREINAFTER PROVIDED; THE MINIMUM TAX SHALL NOT BE LESS THAT TEN
DOLLARS ($10.00) IN ANY CASE.  THE TAX LEVIED HEREIN IS DUE AND PAYABLE
FOR THE PRIVILEGE OF CARRYING ON OR DOING BUSINESS, THE EXERCISING OF
ITS CHARTER OF THE CONTINUANCE OF ITS CHARTER WITHIN THIS STATE, OR
OWNING OR USING ANY PART OR ALL OF ITS CAPITAL OR PLANT IN THIS
STATE." 

/3/ REFUSAL OF REVIEW WAS NOT TANTAMOUNT TO AN AFFIRMANCE.  THE
LOUISIANA SUPREME COURT STATED IN ITS OPINION IN THE INSTANT CASE:  "
THIS COURT'S REFUSAL IN 1969 TO GRANT WRITS UPON APPLICATION BY THE
STATE IN THAT EARLIER CASE, WHILE NORMALLY PERSUASIVE, DOES NOT CARRY
THE SAME WEIGHT AS A PRECEDENT AS IT WOULD, HAD THAT CASE BEEN DECIDED
BY THE COURT AFTER THE GRANTING OF A WRIT.... THIS COURT IS NOT BOUND
BY ITS REFUSAL OF WRITS, TO ADOPT LAW EXPRESSED IN APPELLATE COURT
OPINIONS."  289 SO.2D 93, 96 (1974). 

/4/ SECTION 601 (SUPP. 1975) PROVIDES IN PERTINENT PART:  "SEC 601. 
IMPOSITION OF TAX 

"EVERY DOMESTIC CORPORATION AND EVERY FOREIGN CORPORATION,
EXERCISING ITS CHARTER, OR QUALIFIED TO DO BUSINESS OR ACTUALLY DOING
BUSINESS IN THIS STATE, OR OWNING OR USING ANY PART OR ALL OF ITS
CAPITAL, PLANT OR ANY OTHER PROPERTY IN THIS STATE, SUBJECT TO
COMPLIANCE WITH ALL OTHER PROVISIONS OF LAW, EXCEPT AS OTHERWISE
PROVIDED FOR IN THIS CHAPTER SHALL PAY AN ANNUAL TAX AT THE RATE OF
$1.50 FOR EACH $1,000.00, OR MAJOR FRACTION THEREOF ON THE AMOUNT OF
ITS CAPITAL STOCK, SURPLUS, UNDIVIDED PROFITS, AND BORROWED CAPITAL,
DETERMINED AS HEREINAFTER PRIVIDED; THE MINUMUM TAX SHALL NOT BE LESS
THATN $10.00 PER YEAR IN ANY CASE.  THE TAX LEVIED HEREIN IS DUE AND
PAYABLE ON ANY ONE OR ALL OF THE FOLLOWING ALTERNATIFVE INCIDENTS: 

"(1) THE QUALIFICATION TO CARRY ON OR DO BUSINESS IN THIS STATE OR
THE ACTUAL DOING OF BUSINESS WITHIN THIS STATE IN A CORPORATE FORM. 
THE TERM 'DOING BUSINESS' AS USED HEREIN SHALL MEAN AND INCLUDE EACH
AND EVERY ACT, POWER, RIGHT, PRIVILEGE, OR IMMUNITY EXERCISED OR
ENJOYED IN THIS STATE, AS AN INCIDENT TO OR BY VIRTUE OF THE POWERS AND
PRIVILEGES ACQUIRED BY THE NATURE OF SUCH ORGANIZATION, AS WELL AS, THE
BUYING, SELLING OR PROCURING OF SERVICES OR PROPERTY. 

"(2) THE EXERCISING OF A CORPORATION'S CHARTER OR THE CONTINUANCE OF
ITS CHARTER WITHIN THIS STATE. 

"(3) THE OWNING OR USING ANY PART OR ALL OF ITS CAPITAL, PLANT OR
OTHER PROPERTY IN THIS STATE IN A CORPORATE CAPACITY. 

" IT BEING THE PURPOSE OF THIS SECTION TO REQUIRE THE PAYMENT OF
THIS TAX TO THE STATE OF LOUISIANA BY DOMESTIC CORPORATIONS FOR THE
RIGHT GRANTED BY THE LAWS OF THIS STATE TO EXIST AS SUCH AN
ORGANIZATION, AND BY BOTH DOMESTIC AND FOREIGN CORPORATIONS FOR THE
ENJOYMENT, UNDER THE PROTECTION OF THE LAWS OF THIS STATE, OF THE
POWERS, RIGHTS, PRIVILEGES AND IMMUNITIES DERIVED BY REASON OF THE
CORPORATE FORM OF EXISTENCE AND OPERATION.  THE TAX HEREBY IMPOSED
SHALL BE IN ADDITION TO ALL OTHER TAXES LEVIED BY ANY OTHER STATUTE." 

/5/ THE TAXES LEVIED AGAINST APPELLANT FOR 1970 WERE $80,835.02
INCLUDING INTEREST AND FOR 1971 WERE $69,884.78 INCLUDING INTEREST. 
THESE AMOUNTS WERE FIXED BY APPLYING THE $1.50 RATE TO AN ALLOCATED
FIGURE COMPUTED ACCORDING TO A GENERAL ALLOCATION FORMULA PROVIDED IN
LA. REV. STAT. ANN. SEC. 47:606 AS FOLLOWS: 

" A. GENERAL ALLOCATION FORMULA. 

" FOR THE PURPOSE OF ASCERTAINING THE TAX IMPOSED IN THIS CHAPTER,
EVERY CORPORATION SUBJECT TO THE TAX IS DEEMED TO HAVE EMPLOYED IN THIS
STATE THE PROPORTION OF ITS ENTIRE ISSUED AND OUTSTANDING CAPITAL
STOCK, SURPLUS, UNDIVIDED PROFITS AND BORROWED CAPITAL, COMPUTED ON THE
BASIS OF THE RATIO OBTAINED BY TAKING THE ARITHMETICAL AVERAGE OF THE
FOLLOWING RATIOS: 

"(1) .... 

"(2) THE RATIO THAT THE VALUE OF ALL OF THE TAXPAYER'S PROPERTY AND
ASSETS SITUATED OR USED IN LOUISIANA BEARS TO THE VALUE OF ALL OF ITS
PROPERTY AND ASSETS WHEREVER SITUATED OR USED...." 

THE STATE SUPREME COURT FOUND THAT APPELLANT WAS LIABLE ONLY FOR THE
MINIMUM AMOUNT SPECIFIED IN AMENDED SEC. 601 FOR 1970 AND REDUCED THE
TAX FOR THAT YEAR TO $10.  THE LEVY FOR 1971 WAS SUSTAINED IN THE FULL
AMOUNT, 289 SO.2D AT 101. 

APPELLANT ALSO PAYS AD VALOREM TAXES TO LOUISIANA AND 10 OF ITS
PARISHES, AS WELL AS STATE INCOME TAXES.  FOR THE YEARS 1970 AND 1971,
AD VOLOREM TAXES TOTALED $743,561.34 AND INCOME TAXES TOTALED
$196,621. 

/6/ " A STATE IS FREE TO PURSUE ITS OWN FISCAL POLICIES,
UNEMBARRASSED BY THE CONSTITUTION, IF BY THE PRACTICAL OPERATION OF A
TAX THE STATE HAS EXERTED ITS POWER IN RELATION TO OPPORTUNITIES WHICH
IT HAS GIVEN, TO PROTECTION WHICH IT HAS AFFORDED, TO BENEFITS WHICH IT
HAS CONFERRED BY THE FACT OF BEING AN ORDERLY, CIVILIZED SOCIETY." 
WISCONSIN V. J.C.PENNY CO., 311 U.S. 435, 444 (1940). 

/7/ LIKE SEC. 601, THE MISSISSIPPI STATUTE, CODE ANN. SEC. 9313
(1943), PROVIDED IN PART:  " IT BEING THE PURPOSE OF THIS SECTION TO
REQUIRE THE PAYMENT TO THE STATE OF MISSISSIPPI, THIS TAX FOR THE RIGHT
GRANTED BY THE LAWS OF THIS STATE TO EXIST AS SUCH ORGANIZATION, AND
ENJOY, UNDER THE PROTECTION OF THE LAWS OF THIS STATE, THE POWERS,
RIGHTS, PRIVILEGES AND IMMUNITIES DERIVED FROM THE STATE BY THE FORM OF
SUCH EXISTENCE." 

/8/ LOUISIANA DOES NOT REQUIRE FOREIGN CORPORATIONS TO QUALIFY AS A
CONDITION TO CARRYING ON THEIR INTERSTATE BUSINESS.  LOUISIANA REV
STAT. ANN. SEC. 12:302 (SUPP. 1975) EXPRESSLY EXEMPTS FOREIGN
CORPORATIONS THAT TRANSACT "ANY BUSINESS IN INTERSTATE OR FOREIGN
COMMERCE" FROM ITS REQUIREMENT THAT FOREIGN CORPORATIONS OBTAIN A
CERTIFICATE OF AUTHORITY FROM THE SECRETARY OF STATE BEFORE THEY
TRANSACT BUSINESS WITHIN THE STATE.  CRUTCHER V. KENTUCKY, 141 U.S. 47
(1891), THEREFORE, IS INAPPOSITE.  THERE KENTUCKY PROVIDED THAT AN
AGENT OF AN EXPRESS COMPANY NOT INCORPROATED UNDER THE LAWS OF KENTUCKY
COULD NOT CARRY ON BUSINESS IN THE STATE WITHOUT FIRST OBTAINING A
LICENSE FROM THE STATE.  THE COURT HELD THAT THIS MANDATORY LICENSE
REQUIREMENT WAS UNCONSTITUTIONAL BECAUSE TO "CARRY ON INTERSTATE
COMMERCE IS NOT A FRANCHISE OR A PRIVILEGE GRANTED BY THE STATE.... WE
HAVE REPEATEDLY DECIDED THAT A STATE LAW IS UNCONSTITUTIONAL AND VOID
WHICH REQUIRES A PARTY TO TAKE OUT A LICENSE FOR CARRYING ON INTERSTATE
COMMERCE, NO MATTER HOW SPECIOUS THE PRETEXT MAY BE FOR IMPOSING IT." 
ID., AT 57 - 58.  SEE $GRAHAM MFG. CO. V. ROLLAND, 191 LA. 757, 186 SO.
93 (1939); STATE V. AMERICAN RAILWAY EXPRESS CO., 159 LA. 1001, 106 SO.
544 (1924).  AN IMPORTANT CONSEQUENCE OF QUALIFICATION, OF COURSE, IS
THE FACILITATION OF THE ASSESSMENT AND COLLECTION OF STATE FRANCHISE
TAXES.  COMMENT, FOREIGN CORPORATIONS--, STATE BOUNDARIES FOR NATIONAL
BUSINESS, 59 YALE L.J. 737, 746 (1950). 

/9/ NOR IS THIS TAX ON CARRYING ON BUSINESS IN THE CORPORATE FORM A
"LOCAL OBSTRUCTION TO THE FLOW OF INTERSTATE COMMERCE THAT CANNOT STAND
UNDER THE COMMERCE CLAUSE."  MEMPHIS STEAM LAUNDRY V. STONE, 342 U.S.
389, 395 (1952).  UNLIKE THE SITUATION IN MEMPHIS STEAM LAUNDRY,
LOUISIANA DID NOT "CARVE OUT" AN "INCIDENT FROM THE INTEGRAL ECONOMIC
PROCESS OF INTERSTATE COMMERCE," ID., AT 393, AND THEN PROCEED TO TAX
THAT INCIDENT.  THERE WAS AND IS NO REQUIREMENT THAT APPELLANT ASSUME
THE CORPORATE FORM TO DO INTERSTATE BUSINESS IN LOUISIANA, AND INDEED
STATE LAW SPECIFICALLY EXEMPTS FOREIGN CORPORATIONS ENGAGING IN
INTERSTATE COMMERCE FROM THE CERTIFICATE REQUIREMENT.  SEE N. 8,
SUPRA.     MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING IN THE JUDGMENT. 

I SHARE THE MISGIVINGS THAT ARE SUGGESTED BY MR. JUSTICE STEWART IN
HIS DISSENT, BUT I JOIN THE JUDGMENT OF THE COURT. 

I AM NOT AT ALL SATISIFED THAT THIS COURT'S DECISIONS OF THE PAST 30
YEARS, SOME OF THEM BY SHARPLY DIVIDED VOTES, ARE SO PLAIN AND SO
ANALYTICALLY CONSISTENT AS THE COURT'S OPINION WOULD SEEM TO IMPLY. 
THUS, I FIND IT DIFFICULT TO RECONCILE SPECTOR MOTOR SERVICE V. O'
CONNOR, 340 U.S. 602 (1951), WITH TODAY'S HOLDING.  AND IF THE PRESENT
CASE HAD GONE THE OTHER WAY, I WOULD FIND IT DIFFICULT TO RECONCILE THE
JUDGMENT WITH MEMPHIS GAS CO. V. STONE, 335 U.S. 80 (1948).  IF,
HOWEVER, THE COURT'S DECISIONS OF THE PAST ARE CONSISTENT--AND IF THERE
IS CONSISTENCY BETWEEN WHAT THE LOUISIANA LEGISLATURE AND THAT STATE'S
COURTS HAVE DONE IN COLONIAL'S 1969 CASE AND IN THE PRESENT ONE--THEN,
FOR ME, THE LEGAL DISTINCTIONS THIS COURT AND THE LOUISIANA COURTS
(UNDER THE COMPULSION OF OUR DECISIONS) HAVE DRAWN ARE TOO FINESPUN AND
FAR TOO GOSSAMER.  THEY FAIL TO PROVIDE WHAT TAXPAYERS AND THE LAWYERS
WHO ADVISE THEM HAVE A RIGHT TO EXPECT, NAMELY, A FIRM AND SOLID BASIS
OF DIFFERENTIATION BETWEEN THAT WHICH RUNS AFOUL OF THE COMMERCE
CLAUSE, AND THAT WHICH IS CONSISTENT WITH THAT CLAUSE.  IT MAKES LITTLE
CONSTITUTIONAL LENSE--AND CERTAINLY NO PRACTICAL SENSE--TO SAY THAT A
STATE MAY NOT IMPOSE A FAIRLY APPORTIONED, NONDISCRIMINATORY FRANCHISE
TAX WITH AN ADEQUATE NEXUS UPON THE CONDUCT OF BUSINESS IN INTERSTATE
COMMERCE, BUT THAT IT MAY IMPOSE THAT SAME TAX UPON THE CONDUCT OF
BUSINESS IN INTERSTATE COMMERCE "IN A CORPORATE FORM" OR, FOR THAT
MATTER, IN PARTNERSHIP OR INDIVIDUAL FOR.  TR. OF ORAL ARG. 28 - 31. 
CERTAINLY TO THE LAY MIND, OR TO ANY MIND OTHER THAN THE PURELY LEGAL,
THESE ARE DISTINCTIONS WITH LITTLE SUBSTANTIVE DIFFERENCE AND THIS IS
TAXATION BY SEMANTICS. 

I THEREFORE FEEL THAT THE COURT SHOULD FACE THE USSUE AND MAKE THE
CHOICE.  I WOULD MAKE THAT CHOICE IN FAVOE OF MEMPHIS GAS, AS
BUTTRESSED BY THE PHILOSOPHY AND HOLDING OF NORTHEASTERN CEMENT CO. V.
MINNESOTA, 358 U.S. 450 (1959), AND AGAINST SPECTOR.  SPECTOR, IT SEEMS
TO ME, IS A DERELICT AND AN ABERRATION, AND I WOULD DISCARD IT.  I
WOULD HOLD THAT IN THIS DAY, WHEN THE REALITIES OF " OUR FEDERALISM"
/1/ HAVE BECOME APPARENT, AND WHEN THE ABILITY OF OUR STATES AND OF THE
FEDERAL GOVERNMENT TO COEXIST HAVE MATURED, A STATE FRANCHISE TAX THAT
DOES NOT THREATEN INTERSTATE COMMERCE BY BEING DISCRIMINATORY, OR
UNFAIRLY APPORTIONED, OR DEVOID OF SUFFICIENT NEXUS, PASSES
CONSTITUTIONAL MUSTER UNDER THE COMMERCE CLAUSE AND MAY BE IMPOSED IN
THE ABSENCE OF CONGRESSIONAL PROSCRIPTION.  ON THIS RECORD, LOUISIANA'S
CORPORATION FRANCHISE TAX MEETS THAT STANDARD. 

/1/ YOUNGER V. HARRIS, 401 U.S. 37, 44 (1971). 

MR. JUSTICE STEWART, DISSENTING. 

ALL AGREE THAT THE APPELLANT IS ENGAGED EXCLUSIVELY IN INTERSTATE
COMMERCE.  YET THE COURT SAYS THAT LOUISIANA CAN NONETHELESS IMPOSE
THIS FRANCHISE TAX UPON THE APPELLANT BECAUSE IT IS FOR THE PRIVILEGE
OF ENGAGING IN INTERSTATE COMMERCE "IN (THE) CORPORATE FORM."  /1/
UNDER THIS REASONING, THE STATE COULD IMPOSE A LIKE FRANCHISE TAX FOR
THE PRIVILEGE OF CARRYING ON AN EXCLUSIVELY INTERSTATE BUSINESS "IN THE
PARTNERSHIP FORM"--OR, FOR THAT MATTER, IN THE FORM OF AN INDEVIDUAL
PROPRIETORSHIP.  FOR, WHATEVER ITS FORM, THE EXCLUSIVELY INTERSTATE
BUSINESS WOULD STILL BE "OWNING OR USING (A) PART OF ITS CAPITAL, PLANT
OR OTHER PROPERTY IN LOUISIANA," ANTE, AT 109, AND WOULD STILL BE
"FURNISHED" EQUIVALENT "PROTECTION AND BENEFITS" BY THE STATE, ANTE, AT
114, 

THE FACT IS THAT LOUISIANA HAS IMPOSED A FRANCHISE TAX UPON THE
APPELLANT FOR THE PRIVILEGE OF CARRYING ON AN EXCLUSIVELY INTERSTATE
BUSINESS.  UNDER OUR ESTABLISHED PRECEDINTS, SUCH A TAX IS
UNCONSTITUTIONALLY IMPERMISSIBLE SPECTOR MOTOR SERVICE V. O' CONNOR,
340 U.S. 602; RAILWAY EXPRESS AGENCY V. VIRGINIA, 347 U.S. 359.  I
COULD UNDERSTAND IF THE COURT TODAY WERE FORTHRIGHTLY TO OVERRULE THESE
PRECEDENTS AND HOLD THAT A STATE FRANCHISE TAX UPON INTERSTATE COMMERCE
IS CONSTITUTIONALLY VALID, SO LONG AS IT IS NOT DISCRIMINATROY.  BUT I
CANNOT UNDERSTAND HOW THE COURT CAN EMBRACE THE WHOLLY SPECIOUS
REASONING OF THE SUPREME COURT OF LOUISIANA IN THIS CASE. 

/1/ THE APPELLANT IS NOT, OF COURSE, INCORPORATED IN LOUISIANA. 

R. GORDON KEAN, JR., ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON
THE BRIEFS WAS JOHN V. PARKER. 

WHIT M. COOK II ARGUED THE CAUSE FOR APPELLEE PRO HAC VICE.  WITH
HIM ON THE BRIEF WAS CHAPMAN L. SANFORD. 
..END :



















KUGLER V. HELFANT, 421 U.S. 117 


       KUGLER, ATTORNEY GENERAL OF NEW JERSEY, ET AL. V. HELFANT

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 74 - 80.  ARGUED MARCH 25, 1975--DECIDED APRIL 28,
1975;

     500 F.2D 1188, VACATED AND REMANDED. 

        TOGETHER WITH NO. 74 - 277, HELFANT V. KUGLER, ATTORNEY

  GENERAL OF NEW JERSEY, ET AL., ALSO ON CERTIORARI TO THE

           SAME COURT. 


    ONE HELFANT, WHO WAS A MINICIPAL COURT JUDGE AND A MEMBER OF

  THE NEW JERSEY BAR, BROUGHT THIS ACTION IN DISTRICT COURT

  PERMANENTLY TO ENJOIN THE STATE ATTORNEY GENERAL AND OTHER

  OFFICIALS FROM PROCEEDING WITH THE PROSECUTION OF AN INDICTMENT

  OF HELFANT, WHICH HAD GROWN OUT OF GRAND JURY TESTIMONY THAT HE

  HAD GIVEN AS A RESULT OF ASSERTEDLY COLLUSIVE COERCION BY A STATE

  DEPUTY ATTORNEY GENERAL AND MEMBERS OF THE NEW JERSEY SUPREME

  COURT, WHOSE SIGNIFICANT INVOLVEMENT ALLEGEDLY MADE IT IMPOSSIBLE

  FOR HELFANT TO RECEIVE A FAIR TRIAL IN THE NEW JERSEY STATE

COURTS.  THE DISTRICT COURT ISSUED AN ORDER DISMISSING THE

  COMPLAINT, ON THE BASIS OF YOUNGER V. HARRIS, 401 U.S. 37, WHICH

  HELD THAT UNLESS "EXTRAORDINARY CIRCUMSTANCES" EXIST IN WHICH

  IRREPARABLE INJURY CAN BE SHOWN EVEN IN THE ABSENCE OF BAD FAITH

  AND HARASSMENT, A FEDERAL COURT MUST NOT INTERVENE BY WAY OF

  GRANTING INJUNCTIVE OR DECLARATORY RELIEF AGAINST A STATE

  CRIMINAL PROSECUTION.  THE COURT OF APPEALS, THOUGH HOLDING THAT

  A PERMANENT INJUNCTION OF THE STATE CRIMINAL PROSECUTION WOULD BE

  INAPPROPRIATE, REVERSED THE ORDER AND REMANDED THE CASE FOR AN

  EVIDENTIARY HEARING ON HELFANT'S COERCION CHARGE AND FOR ENTRY OF

  A DECLARATORY JUDGMENT, BASED UPON THAT HEARING, ON THE QUESTION

  WHETHER HELFANT'S GRAND JURY TESTIMONY WAS ADMISSIBLE IN THE

  STATE CRIMINAL TRIAL.  HELFANT CLAIMS THAT FEDERAL JUDICIAL

  INTERVENTION IS WARRANTED UNDER YOUNGER'S "EXTRAORDINARY

  CIRCUMSTANCES" EXCEPTION BECAUSE OF THE ASSERTEDLY COERCIVE

  INVOLVEMENT OF THE MEMBERS OF THE NEW JERSEY SUPREME COURT, WHO

  HAVE FORMIDABLE SUPERVISORY AND ADMINISTRATIVE POWERS OVER THE

  STATE COURT SYSTEM.  HELD: 

     1.  HELFANT'S CLAIM THAT HE CANNOT OBTAIN A FAIR HEARING IN
THE

  STATE COURTS IS WITHOUT MERIT, AND THE FACTS HE ALLEGES DO NOT

  BRING THIS MATTER WITHIN ANY EXCEPTION TO THE YOUNGER RULE SO AS

  TO WARRANT THE GRANTING OF INJUNCTIVE RELIEF AGAINST THE STATE

  CRIMINAL PROSECUTION.  PP. 123 - 129. 

     (A) THE NEW JERSEY JUDICIAL SYSTEM SAFEGUARDS A DEFENDANT LIKE

  HELFANT AGAINST DENIAL OF DUE PROCESS OF LAW IN THE STATE TRIAL

  OR APPELLATE PROCESS BY PROVIDING THAT A DEFENDANT CAN DISQUALIFY

A PARTICULAR JUDGE FROM PARTICIPATING IN HIS CASE, MANDATING

  DISQUALIFICATION OF AN APPELLATE JUDGE WHOSE PARTICIPATION MIGHT

  REASONABLY LEAD COUNSEL TO BELIEVE HE WAS BIASED, AND PROVIDING

  FOR TEMPROARY ASSIGNMENT OF SUBSTITUTE JUSTICES WHERE A SUPREME

  COURT QUORUM IS LACKING.  PP. 126 - 128. 

     (B) FOUR OF THE SIX MEMBERS (INCLUDING THE THEN CHIEF JUSTICE)

  OF THE NEW JERSEY SUPREME COURT WHO PARTICIPATED IN THE ALLEGED

  COERCION ARE NO LONGER ON THAT COURT, AND OF THE TWO REMAINING

  MEMBERS ONLY ONE WAS ACTIVE IN THE CONDUCT COMPLAINED OF. P.

  128. 

(C) THE CHIEF JUSTICE IS THE ADMINISTRATIVE HEAD OF THE NEW

 JERSEY COURT SYSTEM, AND THE INCUMBENT PLAYED NO PART IN THE

  ALLEGEDLY COERCIVE CONDUCT.  P. 128. 

     2.  FEDERAL COURTS SHOULD REFUSE TO INTERVENE IN STATE
CRIMINAL

PROCEEDINGS TO SUPPRESS THE USE OF EVIDENCE EVEN WHEN CLAIMED TO

  HAVE BEEN UNLAWFULLY OBTAINED, STEFANELLI V. MINARD, 342 U.S.

  117; PEREZ V. LEDESMA, 401 U.S. 82, AND THE DECLARATORY JUDGMENT

  PROCEDURE ORDERED BY THE COURT OF APPEALS WOULD CONTRAVENE THE

  BASIC POLICY AGAINST FEDERAL INTERFERENCE WITH STATE PROSECUTIONS

  AS MUCH AS WOULD THE GRANTING OF THE INJUNCTIVE RELIEF SOUGHT BY

  HELFANT.  PP. 129 - 131. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND WHITE, MARSHALL, BLACKMUN, POWELL, AND

  REHNQUIT, JJ., JOINED.  DOUGLAS, J., TOOK NO PART IN THE

  CONSIDERATION OR DECISION OF THE CASES.  BRENNAN, J., TOOK NO

  PART IN THE DECISION OF THE CASES. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

EDWIN H. HELFANT BROUGHT THIS ACTION IN FEDERAL DISTRICT COURT TO
ENJOIN THE ATTORNEY GENERAL OF NEW JERSEY AND OTHER NEW JERSEY
OFFICIALS FROM PROCEEDING WITH THE PROSECUTION OF AN INDICTMENT PENDING
AGAINST HIM IN THAT STATE.  /1/ HIS COMPLAINT ALLEGED THAT HE HAD BEEN
COERCED INTO TESTIFYING BEFORE A STATE GRAND JURY BY THE CONCERTED
ACTION OF A STATE DEPUTY ATTORNEY GENERAL AND MEMBERS OF THE NEW JERSEY
SUPREME CUORT, AND THAT THE INDICTMENT, CHARGING HIM WITH OBSTRUCTION
OF JUSTICE AND FALSE SWEARING, HAD GROWN OUT OF THAT COERCED
TESTIMONY.  HIS COMPLAINT FURTHER ALLEGED THAT THE SIGNIFICANT ROLE
PLAYED BY THE MEMBERS OF THE NEW JERSEY SUPREME COURT IN COERCING HIS
TESTIMONY MADE IT IMPOSSIBLE FOR HIM TO RECEIVE A FAIR TRIAL IN THE
STATE COURT SYSTEM. 

THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND THAT THE
PRINCIPLES OF YOUNGER V. HARRIS, 401 U.S. 37, PRECLUDED FEDERAL
INTERVENTION IN THE STATE CRIMINAL PROCEEDING.  A THREE-JUDGE PANEL OF
THE COURT OF APPEALS FOR THE THIRD CIRCUIT REVERSED THAT ORDER AND
REMANDED THE CASE TO THE DISTRICT COURT FOR A HEARING ON THE MERITS OF
HELFANT'S REQUEST FOR A PERMANENT INJUNCTION.  484 F.2D 1277.  UPON
PETITION OF THE DEFENDANT STATE OFFICIALS (HEREINAFTER THE STATE), THE
COURT OF APPEALS THEN SET THE CASE FOR AN EN BANC REHEARING.  THE FULL
COURT OF APPEALS HELD THAT A PERMANENT INJUNCTION AGAINST THE STATE
CRIMINAL PROSECUTION WOULD BE INAPPROPRIATE, BUT, WITH THREE JUDGES
DISSENTING, NONETHELESS REVERSED THE TRIAL COURT'S ORDER OF CISMISSAL. 
THE COURT OF APPEALS REMANDED THE CASE FOR THE PURPOSE OF AN
EVIDENTIARY HEARING IN THE DISTRICT COURT ON HELFANT'S CHARGE THAT HIS
GRAND JURY TESTIMONY HAD BEEN COERCED, AND FOR THE ENTRY OF A
DECLARATORY JUDGMENT, BASED UPON THAT HEARING, ON THE QUESTION WHETHER
HELFANT'S GRAND JURY TESTIMONY SHOULD BE ADMITTED INTO EVIDENCE AT THE
STATE CRIMINAL TRIAL.  THE DISTRICT COURT WAS DIRECTED TO ENJOIN
FURTHER PROCEEDINGS IN THE STATE CRIMINAL PROSECUTION PENDING ENTRY OF
ITS DECLARATORY JUDGMENT.  500 F.2D 1188. 

THE STATE FILED A PETITION FOR A WRIT OF CERTIORARI, SEEKING REVIEW
OF THE COURT OF APPEALS' REMAND TO THE DISTRICT COURT FOR AN
EVIDENTIARY HEARING AND DECLARATORY JUDGMENT ON THE ISSUE OF COERCION. 
HELFANT FILED A CROSS PETITION FOR A WRIT OF CERTIORARI, CHALLENGING
THE COURT OF APPEALS' DECISION THAT PERMANENT INJUNCTIVE RELIEF WAS NOT
WARRANTED.  WE GRANTED BOTH PETITIONS TO CONSIDER THE PROPRIETY OF
FEDERAL COURT INTERVENTION IN PENDING STATE CRIMINAL PROCEEDINGS IN THE
CIRCUMSTANCES OF THIS CASE.  419 U.S. 1019. 

   I 

HLEFANT WAS A MUNICIPAL COURT JUDGE AND A MEMBER OF THE NEW JERSEY
BAR.  HE WAS SUBPOENAED TO APPEAR ON OCTOBER 18, 1972, BEFORE A STATE
GRAND JURY.  THERE HE WAS ADVISED THAT HE WAS A TARGET OF THE GRAND
JURY'S INVESTIGATION INTO AN EPISODE ALLEGEDLY INVOLVING CORRUPTION OF
THE PROCESS OF STATE CRIMINAL JUSTICE.  UPON THE ADVICE OF COUNSEL, HE
INVOKED HIS CONSTITUTIONAL PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION AND REFUSED TO TESTIFY BEFORE THE GRAND JURY.  HE WAS
AGAIN SUBPOENAED TO APPEAR BEFORE THE GRAND JURY ON NOVEMBER 8, 1972. 
ON NOVEMBER 6, 1972, HE RECEIVED A TELEPHONE CALL FROM THE
ADMINISTRATIVE DIRECTOR OF THE NEW JERSEY COURTS REQUESTING HIM TO COME
TO THE CONFERENCE ROOM OF THE JUSTICES OF THE NEW JERSEY SUPREME COURT
ON THE MORNING OF NOVEMBER 8 JUST BEFORE HIS SCHEDULED GRAND JURY
APPEARANCE.  /2/  HE COMPLIED WITH THIS REQUEST. 

IN HIS FEDERAL COMPLAINT, HELFANT ALLEGED THAT AT THAT MEETING HE WAS
INTERROGATED BY THE CHIEF JUSTICE AND OTHER MEMBERS OF THE SUPREME
COURT CONCERNING THE SUBJECT MATTER OF THE GRAND JURY INVESTIGATION,
INCLUDING ABOUT THE PROPRIETY OF A MUNICIPAL JUDGE'S INVOKING THE
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION BEFORE A GRAND JURY. 
THE COMPLAINT FURTHER ALLEGED THAT THE JUSTICES' QUESTIONS WERE BASED
ON GRAND JURY MINUTES THAT HAD BEEN PROVIDED THEM BY THE DEPUTY
ATTORNEY GENERAL WHO WAS CONDUCTING THE GRAND JURY INVESTIGATION, AND
WHO HAD BEEN PRESENT IN THE CONFERENCE ROOM OF THE SUPREME COURT BOTH
BEFORE AND AFTER HELFANT'S INTERVIEW. 

THE FEDERAL COMPLAINT WENT ON TO ALLEGE THAT AS A RESULT OF THIS
QUESTIONING HELFANT, "FEARING NOT ONLY THE LOSS OF JUDGESHIP, BUT FOR
HIS ACCREDITATION AS A MEMBER OF THE BAR AS WELL," INDICATED TO THE
JUSTICES THAT HE WOULD WAIVE HIS PRIVILEGE AND TESTIFY IN FULL BEFORE
THE GRAND JURY.  AFTER LEAVING THE CONFERENCE ROOM, HELFANT DID TESTIFY
BEFORE THE GRAND JURY, DENYING ANY IMPROPER INVOLVEMENT IN THE EPISODE
UNDER INVESTIGATION.  SOME TWO MONTHS LATER THE GRAND JURY RETURNED AN
INDICTMENT CHARGING HELFANT WITH CONSPIRACY TO OBSTRUCT JUSTICE,
OBSTRUCTION OF JUSTICE, COMPOUNDING A FELONY, AND WITH FOUR COUNTS OF
FALSE SWEARING. 

THE FEDERAL COMPLAINT FINALLY ALLEGED THAT FEDERAL INJUNCTIVE RELIEF
WAS NECESSARY BECAUSE IT WOULD BE IMPOSSIBLE FOR HELFANT TO RECEIVE A
FAIR TRIAL IN THE NEW JERSEY STATE COURTS: 

     " AS A RESULT OF THE INTRUSION BY THE DEPUTY ATTORNEY GENERAL

  AND THE DISCLOSURE TO THE SUPREME COURT OF FACTUAL MATTERS

  INVOLVED IN A GRAND JURY INVESTIGATION DURING PENDENCY OF THAT

  INVESTIGATION, AND BECAUSE OF THE INTRUSION OF THE NEW JERSEY

  SUPREME COURT INTO THE GRAND JURY INVESTIGATION AND THE

  COMMUNICATION BETWEEN THE SUPREME COURT OF NEW JERSEY AND THE

  DEPUTY ATTORNEY GENERAL CONDUCTING THE GRAND JURY INVESTIGATION,

  THE PLAINTIFF HEREIN IS MADE TO SUFFER GREAT, IMMEDIATE,

  SUBSTANTIAL AND IRREPARABLE HARM IN THAT HE MUST ATTEMPT TO

  DEFEND CRIMINAL CHARGES BROUGHT IN A STATE IN WHICH THERE HAS

  BEEN PREJUDICAL COLLUSION DIRECTLY AFFECTING PLAINTIFF, WHETHER

  INTENTIONAL OR INADVERTENT BETWEEN THE JUDICIAL AND EXECUTIVE

  BRANCHES OF THE NEW JERSEY STATE GOVERMMENT.  PLAINTIFF IS BEING

  MADE TO DEFEND CRIMINAL CHARGES WHICH HAVE BEEN OBTAINED, INTER

  ALIA, AS A RESULT OF THE COLLUSION, AND THE DEPRIVATION OF

PLAINTIFF'S CONSTITUTIONAL RIGHTS BY NOT TOO SUBTLE COOPERATIVE

  COERCION ON THE PART OF THE DEFENDANTS.  FURTHERMORE, IN THE

  EVENT OF HIS CONVICTION UPON ANY ONE OF THE CHARGES PRESENTLY

  PEIDING AGAINST HIM, PLAINTIFF'S ONLY RECOURSE WOULD BE REVIEW BY

  THE STATE COURTS AND ULTIMATELY THE NEW JERSEY SUPREME COURT,

  WHICH COURT HE HAS ALLEGED HAS BEEN INVOLVED IN THE PROSECUTION

  OF THE CHARGES AGAINST HIM.  THUS, ANY DEFENSE BY PLAINTIFF IN

  OTHER CHARGES IN STATE COURT WOULD BE TOTALLY FUTILE, BECAUSE HE

  WOULD HAVE TO DEFEND CHARGES AT THE TRIAL LEVEL, WITH THE TRIAL

  COURT FULLY COGNIZANT OF THE 'INTEREST' OF THE SUPREME COURT IN

  THE CHARGES, AND COULD ONLY SEEK REVIEW OF HIS PRETRIAL MOTIONS

  AND TRIAL MOTIONS AND APPEALS IN THE SAME COURT THAT HE ALLEGES

  HAS UNLAWFULLY INJECTED ITSELF INTO THE PROSECUTION OF THE

  CHARGES AGAINST HIM AND UNLAWFULLY DEPRIVED HIM OF HIS

  CONSTITUTIONAL RIGHTS.  THE CONCLUSION MUST BE THAT THE STATE IS

  ENGAGING IN A BAD FAITH PROSECUTION OF THE PLAINTIFF HEREIN, AND

  FOR THIS REASON HE SEEKS A PERMANENT INJUNCTION AGAINST THE

  FURTHER PROSECUTION OF THE STATE PROCEEDINGS..." 

        II 

IN YOUNGER V. HARRIS, SUPRA, AND ITS COMPANION CASES, /3/ THE COURT
RE-EXAMINED THE PRINCIPLES GOVERNING FEDERAL JUDICIAL INTERVENTION IN
PENDING STATE CRIMINAL CASES, AND UNEQUIVOCALLY REAFFIRMED "THE
FUNDAMENTAL POLICY AGAINST FEDERAL INTERFERENCE WITH STATE CRIMINAL
PROSECUTIONS."  401 U.S., AT 46.  THIS POLICY OF RESTRAINT, THE COURT
EXPLAINED, IS FOUNDED ON THE "BASIC DOCTRINE OF EQUITY JURISPRUDENCE
THAT COURTS OF EQUITY SHOULD NOT ACT, AND PARTICULARLY SHOULD NOT ACT
TO RESTRAIN A CRIMINAL PROSECUTION, WHEN THE MOVING PARTY HAS AN
ADEQUATE REMEDY AT LAW AND WILL NOT SUFFER IRREPARABLE INJURY IF DENIED
EQUITABLE RELIEF."  ID., AT 43 - 44.  WHEN A FEDERAL COURT IS ASKED TO
INTERFERE WITH A PENDING STATE PROSECUTION, ESTABLISHED DOCTRINES OF
EQUITY AND COMITY ARE REINFORCED BY THE DEMANDS OF FEDERALISM, WHICH
REQUIRE THAT FEDERAL RIGHTS BE PROTECTED IN A MANNER THAT DOES NOT
UNDULY INTERFERE WITH THE LEGITIMATE FUNCTIONING OF THE JUDICIAL
SYSTEMS OF THE STATES.  ID., AT 44.  ACCORDINGLY, THE COURT HELD THAT
IN THE ABSENCE OF EXCEPTIONAL CIRCUMSTANCES CREATING A THREAT OF
IRREPARABLE INJURY "'BOTH GREAT AND IMMEDIATE,'" A FEDERAL COURT MUST
NOT INTERVENE BY WAY OF EITHER INJUNCTION OR DECLARATORY JUDGMENT IN A
PENDING STATE CRIMINAL PROSECUTION. 

ALTHOUGH THE COST, ANXIETY, AND INCONVENIENCE OF HAVING TO DEFEND
AGAINST A SINGLE CRIMINAL PROSECUTION ALONE DO NOT CONSTITUTE
"IRREPARABLE INJURY" IN THE "SPECIAL LEGAL SENSE OF THAT TERM," ID., AT
46, THE COURT IN YOUNGER LEFT ROOM FOR FEDERAL EQUITABLE INTERVENTION
IN A STATE CRIMINAL TRIAL WHERE THERE IS A SHOEING OF "BAD FAITH" OR
"HARASSMENT" BY STATE OFFICIALS RESPONSIBLE FOR THE PROSECUTION, ID.,
AT 54, WHERE THE STATE LAE TO BE APPLIED IN THE CRIMINAL PROCEEDING IS
"'FLAGRANTLY AND PATENTLY VIOLATIVE OF EXPRESS CONSTITUTIONAL
PROHIBITIONS,'" ID., AT 53, OR WHERE THERE EXIST OTHER "EXTRAORDINARY
CIRCUMSTANCES IN WHICH THE NECESSARY IRREPARABLE INJURY CAN BE SHOWN
EVEN IN THE ABSENCE OF THE USUAL PREREQUISITES OF BAD FAITH AND
HARASSMENT."  IBID.  IN THE COMPANION CASE OF PEREZ V. LEDESMA, 401
U.S. 82, THE COURT EXPLAINED THAT "(ONLY IN CASES OF PROVEN HARASSMENT
OR PROSECUTIONS UNDERTAKEN BY STATE OFFICIALS IN BAD FAITH WITHOUT HOPE
OF OBTAINING A VALID CONVICTION AND PERHAPS IN OTHER EXTRAORDINARY
CIRCUMSTANCES WHERE IRREPARABLE INJURY CAN BW SHOWN IN FEDERAL
INJUNCTIVE RELIEF AGAINST PENDING STATE PROSECUTIONS APPROPRIATE." 
ID., AT 85.  SEE MITCHUM V. FOSTER, 407 U.S. 225, 230 - 231. 

THE POLICY OF EQUITABLE RESTRAINT EXPRESSED IN YOUNGER V. HARRIS, IN
SHORT, IS FOUNDED ON THE PREMISE THAT ORDINARILY A PENDING STATE
PROSECUTION PROVIDES THE ACCUSED A FAIR AND SUFFICIENT OPPORTUNITY FOR
VINDICATION OF FEDERAL CONSTITUTIONAL RIGHTS.  SEE STEEFEL V. THOMPSON,
415 U.S. 452, 460.  ONLY IF "EXTRAORDINARY CIRCUMSTANCES" RENDER THE
STATE COURT INCAPABLE OF FAIRLY AND FULLY ADJUDICATING THE FEDERAL
ISSUES BEFORE IT, CAN THERE BE ANY RELAXATION OF THE DEFERENCE TO BE
ACCORDED TO THE STATE CRIMINAL PROCESS.  THE VERY NATURE OF
"EXTRAORDINARY CIRCUMSTANCES," OF COURSE, MAKES IT IMPOSSIBLE TO
ANTICIPATE AND DEFINE EVERY SITUATION THAT MIGHT CREATE A SUFFICIENT
THREAT OF SUCH GREAT, IMMEDIATE, AND IRREPARABLE INJURY AS TO WARRANT
INTERVENTION IN STATE CRIMINAL PROCEEDINGS.  /4/  BUT WHATEVER ELSE IS
REQUIRED, SUCH CIRCUMSTANCES MUST BE "EXTRAORDINARY" IN THE SENSE OF
CREATING AN EXTRAORDINARILY PRESSING NEED FOR IMMEDIATE FEDERAL RELIEF,
NOT MERELY IN THE SENSE OF PRESENTING A HIGHLY UNUSUAL FACTUAL
SITUATION. 

AS THE COURT OF APPEALS RECOGNIZED, HELFANT'S ALLEGATIONS THAT
MEMBERS OF THE NEW JERSEY SUPREME COURT WERE INVOLVED IN COERCING HIS
GRAND JURY TESTIMONY MUST, FOR PRESENT PURPOSES, BE ASSUMED TO BE
TRUE.  /5/ IT IS HELFANT'S POSITION THAT THESE ARE SUCH "EXTRAORDINARY
CIRCUMSTANCES" AS TO JUSTIFY ENJOINING HIS CRIMINAL TRIAL IN VIEW OF
THE FORMIDABLE SUPERVISORY AND ADMINISTRATIVE POWERS EXERCISED BY THE
NEW JERSEY SUPREME COURT OVER THE ENTIRE STATE COURT SYSTEM.  WE CANNOT
AGREE THAT THESE FACTS BRING THIS LITIGATION WITHIN ANY EXCEPTION TO
THE BASIC YOUNGER RULE.  /6/ 

THE NEW JERSEY CONSTITUTION PROVIDES THAT THE CHIEF JUSTICE OF THE
STATE SUPREME COURT SHALL BE THE "ADMINISTRATIVE HEAD" OF ALL THE
COURTS IN THE STATE.  ART. VI, SEC. 7, 1.  THE STATE CONSTITUTION
FURTHER PROVIDES THAT "(THE CHIEF JUSTICE OF THE SUPREME COURT SHALL
ASSIGN JUDGES OF THE SUPERIOR COURT TO THE DEVISIONS AND PARTS OF THE
SUPERIOR COURT, AND MAY FROM TIME TO TIME TRANSFER JUDGES FROM ONE
ASSIGNMENT TO ANOTHER, AS NEED APPEARS."  ID., 2. 

THE NEW JERSEY SUPREME COURT ITSELF HAS EXPLAINED THAT THE STATE
CONSTITUTION VESTS IT WITH "PLENARY RESPONSIBILITY FOR THE
ADMINISTRATION OF ALL COURTS IN THE STATE."  STATE V. DE STASIO, 49
N.J. 247, 253, 229 A.2D 636, 639.  " THUS THIS COURT IS CHARGED WITH
RESPONSIBILTITY FOR THE OVERALL PERFORMANCE OF THE JUDICAL BRANCH. 
RESPONSIBILITY FOR A RESULT IMPLIES POWER REASONABLY NECESSARY TO
ACHIEVE IT."  IN RE MATTERA, 34 N.J. 259, 272, 168 A.2D 38, 45. 

IT IS CLEAR, THEREFORE, THAT THE STATE SUPREME COURT, AND
PARTICULARLY ITS CHIEF JUSTICE, ARE VESTED WITH CONSIDERABLE
ADMINISTRATIVE AUTHORITY OVER THE TRIAL COURT THAT WILL INITIALLY
DETERMINE HELFANT'S FEDERAL CONSTITUTIONAL CLAIMS IF THE CRIMINAL
PROSECUTION IS ALLOWED TO PROCEED.  AND, OF COURSE, THOSE CLAIMS ARE
PREDICATED IN LARGE MEASURE ON CHARGES OF IMPROPER CONDUCT ON THE PART
OF SOME JUSTICES OF THE NEW JERSEY SUPREME COURT.  IT IS IMPOSSIBLE TO
CONCLUDE FROM THESE CONSIDERATIONS, HOWEVER, THAT THE OBJECTIVITY OF
THE ENTIRE NEW JERSEY COURT SYSTEM HAS BEEN IRRETRIEVABLY IMPAIRED SO
FAR AS HELFANT IS CONCERNED. 

HELFANT DOES NOT ALLEGE, AND IT CERTAINLY CANNOT BE ASSEMED, THAT NO
TRIAL JUDGE IN NEW JERSEY WILL BE CAPABLE OF IMPARTIALLY DECISING HIS
CASE SIMPLY BECAUSE OF THE ALLEGED PREVIOUS INVOLVEMENT OF MEMBERS OF
THE NEW JERSEY SUPREME COURT.  TO BE SURE, IT IS CONCEIVABLE THAT THERE
MIGHT BE A JUDGE IN THE STATE WHO, IN AN EFFORT TO CURRY FAVOR OR TO
AVOID ADMINISTRATIVE TRANSFER TO A LESS DESIRABLE ASSIGNMENT, WOULD
DECIDE THE CASE WITH AN EYE TO THE SUPPOSED ATTITUDES OF HIS SUPERIORS
IN THE JUDICIAL HIERARCHY.  BUT EVEN IF SUCH A JUDGE WERE ASSIGNED TO
HEAR HELFANT'S CASE, THE RIGHT TO A FAIR TRIAL WOULD BE PROTECTED BY
THE NEW JERSEY RULE THAT PERMITS A DEFENDANT TO DISQUALIFY A PARTICULAR
JUDGE FROM PARTICIPATING IN HIS CASE.  SEE NEW JERSEY COURT RULES 1:12
1 TO 1:12 - 3.     ALTHOUGH APPELLATE REVIEW OF A CONVICTION AT THE
TRIAL LEVEL MIGHT ULTIMATELY REACH THE STATE SUPREME COURT, NEW JERSEY
REQUIRES JUDGES PERSONALLY INTERESTED "IN THE EVENT OF THE ACTION" TO
DISQUALIFY THEMSELVES.  INDEED, DISQUALIFICATION IS MANDATORY WHENEVER
THERE IS ANY REASON "WHICH MIGHT PRECLUDE A FAIR AND UNBIASED HEARING
AND JUDGMENT, OR WHICH MIGHT REASONABLY LEAD COUNSEL OR THE PARTIES TO
BELIEVE SO."  RULES 1:12 - 1(E) AND (F) (EMPHASIS ADDED).  IF, BECAUSE
OF SUCH DISQUALIFICATIONS, THE SUPREME COURT WERE DEPRIVED OF THE
REQUISITE FIVE-MEMBER QUORUM, TEMPORARY ASSIGNMENT OF SUBSTITUTE
JUSTICES IS AUTHORIZED BY THE NEW JERSEY COURT RULES.  RULE 2:13 - 2.
THUS, THE NEW JERSEY JUCICIAL SYSTEM PROVIDES PROCEDURAL SAFEGUARDS TO
GUARANTEE THAT HELFANT WILL NOT BE DENIED DUE PROCESS OF LAW IN THE
STATE TRIAL OR APPELLATE PROCESS. 

IT IS WORTH NOTING, FURTHERMORE, THAT FOUR OF THE SIX JUSTICES WHO
ATTENDED THE MEETING WITH HELFANT ARE NO LONGER MEMBERS OF THE NEW
JERSEY SUPREME COURT.  OF THE TWO REMAINING MEMBERS, ONLY ONE WAS
ALLEGED TO HAVE BEEN ACTIVE IN THE QUESTIONING.  THE OTHER ACTIVE
INTERROGATOR NAMED BY HELFANT, THE THEN CHIEF JUSTICE, IS AMONG THE
FOUR FORMER JUSTICES WHO ARE NO LONGER MEMBERS OF THE COURT. 

MOREOVER, IT IS NOT THE NEW JERSEY SUPREME COURT, OR ITS MEMBERS,
BUT THE CHIEF JUSTICE, WHO IS THE "ADMINISTRATIVE HEAD" OF THE NEW
JERSEY COURT SYSTEM.  THUS, IT IS THE PRESENT CHIEF JUSTICE WHO WIELDS
THE EXTENSIVE SUPERVISORY AND ADMINISTRATIVE POWER RELIED UPON BY
HELFANT TO SUPPORT HIS PRAYER FOR FEDERAL EQUITABLE RELIEF.  AND THE
PRESENT CHIEF JUSTICE PLAYED NO PART WHATSOEVER IN THE ALLEGEDLY
COERCIVE MEETING THAT FORMS THE CORE OF HELFANT'S CONSTITUTIONAL
CLAIM.  IN SUM, EVEN IF IT COULD BE ASSUMED, ARGUENDO, THAT THE FORMER
CHIEF JUSTICE AND THE OTHER PARTICIPANTS IN THE MEETING WITH HELFANT
MIGHT HAVE BEEN INCAPABLE OF IMPARTIALLY REVIEWING HIS CASE, THERE CAN
BE NO SUCH ASSUMPTION OF BIAS WITH RESPECT TO THE NEW CHIEF JUSTICE AND
THE OTHER NEW MEMBERS OF THE NEW JERSEY SUPREME COURT.  /7/ 

ACCORDINGLY, HELFANT'S CLAIM THAT HE CANNOT RECEIVE A FAIR HEARING
IN THE STATE COURT SYSTEM IS WITHOUT FOUNDATION.  THE COURT OF APPEALS,
THEREFORE, PROPERLY AFFIRMED THE DISTRICT COURT'S DISMISSAL OF HIS
PRAYER FOR PERMANENT INJUNCTIVE RELIEF. 

III 

ALTHOUGH THE COURT OF APPEALS HELD THAT THERE WAS IN THIS CASE "NO
REASON TO DEPART FROM THE FORMIDABLE GENERAL POLICY OF 'LEAVING
GENERALLY TO THE STATE COURTS THE TRIAL OF CRIMINAL CASES ARISING UNDER
STATE LAWS....'"  500 F.2D, AT 1196, /8/ IT NONETHELESS CONCLUDED THAT
FEDERAL DECLARATORY RELIEF ON THE QUESTION OF THE ADMISSIBILITY IN
EVIDENCE OF HELFANT'S GRAND JURY TESTIMONY WAS IN ORDER.  IT WAS THE
COURT'S VIEW THAT FEDERAL FACTFINDING ON THIS NARROW ISSUE WOULD FREE
THE NEW JERSEY COURTS FROM EVEN THE APPEARANCE OF PARTIALITY.  BY THUS
ASSURING THE INTEGRITY OF THE STATE JUDICIAL PROCESS WITHOUT ULTIMATELY
INTERFERING WITH THE STATE S RIGHT TO ENFORCE ITS OWN CIRMINAL LAWS,
THE COURT REASONED, FEDERAL JUDICIAL ACTION WOULD ADVANCE, RATHER THAN
OFFEND, "THE MUTUAL RELATIONSHIP POIGNANTLY DESCRIBED BY JUSTICE BLACK
AS ' OUR FEDERALISM.'"  ID., AT 1197.  THE COURT ACCORDINGLY REQUIRED
THE DISTRICT COURT TO ENJOIN FURTHER PROCEEDINGS IN THE STATE CRIMINAL
TRIAL UNTIL AN EVIDENTIARY HEARING COULD BE HELD IN THE FEDERAL COURT
TO DETERMINE WHETHER HELFANT'S GRAND JURY TESTIMONY SHOULD BE ADMITTED
AS EVIDENCE IN THAT TRIAL. 

THIS PROCEDURE CLOSELY RESEMBLES THE COURSE REJECTED BY THIS COURT
IN STEFANELLI V. MINARD, 342 U.S. 117.  IN STEFANELLI THE COURT
AFFIRMED THE REFUSAL OF A FEDERAL DISTRICT COURT TO ENTERTAIN
PROCEEDINGS TO SUPPRESS THE USE IN A PENDING STATE PROSECUTION OF
EVIDENCE ALLEGEDLY OBTAINED IN AN UNLAWFUL SEARCH.  AS THE COURT
EXPLAINED:  " IF THE FEDERAL EQUITY POWER MUST REFRAIN FROM STAYING
STATE PROSECUTIONS OUTRIGHT TO TRY THE CENTRAL QUESTION OF THE VALIDITY
OF THE STATUTE ON WHICH THE PROSECUTION IS BASED, HOW MUCH MORE
RELUCTANT MUST IT BE TO INTERVENE PIECE-MEAL TO TRY COLLATERAL
ISSUES."  ID., AT 123.  THE COURT THUS HELD THAT "FEDERAL COURTS SHOULD
REFUSE TO INTERVENE IN STATE CRIMINAL PROCEEDINGS TO SUPPRESS THE USE
OF EVIDENCE EVEN WHEN CLAIMED TO HAVE BEEN SECURED BY UNLAWFUL SEARCH
AND SEIZURE."  ID., AT 120.  SIMILARLY, IN PEREZ V. LEDESMA, SUPRA, THE
COURT HELD:  "(THE PROPRIETY OF ARRESTS AND THE ADMISSIBILITY OF
EVIDENCE IN STATE CRIMINAL PROSECUTIONS ARE ORDINARILY MATTERS TO BE
RESOLVED BY STATE TRIBUNALS,...SUBJECT, OF COURSE, TO REVIEW BY
CERTIORARI OR APPEAL IN THIS COURT OR, IN A PROPER CASE, ON FEDERAL
HABEAS CORPUS."  401 U.S., AT 84 - 85 (CITATION OMITTED).  SEE ALSO
CLEARY V. BOLGER, 371 U.S. 392. 

THESE PRECEDENTS CLEARLY ESTABLISH THAT AT LEAST IN THE ABSENCE OF
"EXTRAORDINARY CIRCUMSTANCES" FEDERAL COURTS MUST REFUSE TO INTERVENE
IN STATE CRIMINAL PROCEEDINGS TO SUPPRESS THE USE OF EVIDENCE CLAIMED
TO HAVE BEEN OBTAINED THROUGH UNLAWFUL MEANS.  /9/ EVEN IF CONCERN FOR
THE APPEARANCE OF COMPLETE IMPARTIALITY COULD IN SOME CASE CONCEIVABLY
JUSTIFY SUCH DISRUPTION OF STATE CRIMINAL PROCEEDINGS, THIS NOT SLUCH A
CASE.  BY PROVIDING FOR MANDATORY DISQUALIFICATION OF A JUDGE OF ANY
COURT WHENEVER ONE OF THE PARTIES OR HIS COUNSEL RATIONALLY BELIEVES
THERE EXISTS ANY REASON THAT MIGHT PRECLUDE A FAIR AND UNBIASED
HEARING, N.J. COURT RULE 1:12 - 1(F), NEW JERSEY HAS PRESERVED THE
APPEARANCE OF JUDICIAL OBJECTIVITY.  AND AS EXPLAINED IN PART II,
SUPRA, HELFANT'S CLAIM THAT HE CANNOT IN FACT OBTAIN A FAIR HEARING IN
THE STATE COURT SYSTEM IS WITHOUT MERIT. 

IN SHORT, THE BASIC POLICY AGAINST FEDERAL INTERFERENCE WITH PENDING
STATE PROSECUTIONS WOULD BE FRUSTRATED AS MUCH BY THE DECLARATORY
JUDGMENT PROCEDURE ORDERED BY THE COURT OF APPEALS AS IT WOULD BE BY
THE PERMANENT INJUNCTION ORIGINALLY SOUGHT BY HELFANT.  SEE SAMUELS V.
MACKELL, 401 U.S. 66, 73.  ACCORDINGLY, THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED, AND THE CASES ARE REMANDED TO THAT COURT WITH
DIRECTIONS TO ENTER A JUDGMENT AFFIRMING THE DISTRICT COURT'S DISMISSAL
OF THE COMPLAINT. 

                                  IT IS SO ORDERED. 

/1/ THE COMPLAINT RELIED UPON 42 U.S.C. SEC. 1983 IN SEEKING
INJUNCTIVE RELIEF AGAINST THE STATE COURT PROCEEDINGS.  FEDERAL
JURISDICTION WAS GROUNDED ON 2, U.S.C. SEC. 1343(3). 

/2/ THE GRAND JURY WAS THEN SITTING IN TRENTON, N.J., IN THE STATE
HOUSE ANNEX ON THE SAME FLOOR AS THE CONFERENCE ROOM OF THE JUSTICES OF
THE STATE SUPREME COURT.  SEE 500 F.2D 1188, 1190. 

/3/ SAMUELS V. MACKELL, 401 U.S. 66; BOYLE V. LANDRY, 401 U.S. 77;
PEREZ V. LEDESMA, 401 U.S. 82; DYSON V. STEIN, 401 U.S. 200; BYRNE V.
DARALEXIS, 401 U.S. 216. 

/4/ THE SCOPE OF THE EXCEPTION TO THE GENERAL RULE OF EQUITABLE
RESTRAINT FOR "OTHER EXTRAORDINARY CIRCUMSTANCES" HAS BEEN LEFT LARGELY
UNDEFINED BY THIS COURT.  IN YOUNGER V. HARRIS, 401 U.S. 37, HOWEVER,
THE COURT GAVE ONE EXAMPLE OF THE TYPE OF CIRCUMSTANCES THAT COULD
JUSTIFY FEDERAL INTERVENTION EVEN IF THE ABSENCE OF EITHER HARASSMENT
OR BAD-FAITH ENFORCEMENT OF A STATE CRIMINAL STATUTE BY QUOTING FROM
WATSON V. BUCK, 313 U.S. 387, 402:  "' IT IS OF COURSE CONCEIVABLE THAT
A STATTUTE MIGHT BE FLAGRANTLY AND PATENTLY VIOLATIVE OF EXPRESS
CONSTITUTIONAL PROHIBITIONS IN EVERY CLAUSE, SENTENCE AND PARAGRAPH,
AND IN WHATEVER MANNER AND AGAINST WHOMEVER AN EFFORT MIGHT BE MADE TO
APPLY IT.'"  401 U.S., AT 53 - 54.  THE COURT THEN STATED:  "OTHER
UNUSUAL SITUATIONS CALLING FOR FEDERAL INTERVENTION MIGHT ALSO ARISE,
BUT THERE IS NO POINT IN OUR ATTEMPTING NOW TO SPECIFY WHAT THEY MIGHT
BE."  ID., AT 54. 

GIBSON V. BERRYHILL, 411 U.S. 564, SUPPLIED ANOTHER EXAMPLE OF SUCH
"EXTAORDINARY CIRCUMSTANCES."  IN THAT CASE THE COURT FOUND IT
UNNECESSARY TO DECIDE WHETHER THE RULE OF YOUNGER V. HARRIS APPLIES
WITH THE SAME FORCE WHEN STATE CIVIL, RATHER THAN CRIMINAL, PROCEEDINGS
ARE PENDING BECAUSE "THE PREDICATE FOR A YOUNGER V. HARRIS DISMISSAL
WAS LACKING . . . . THE APPELLEES ALLEGED, AND THE DISTRICT COURT
CONCLUDED, THAT THE STATE BOARD OF OPTOMETRY WAS INCOMPETENT BY REASON
OF BIAS TO ADJUDICATE THE ISSUES PENDING BEFORE IT.  IF THE DISTRICT
COURT'S CONCLUSION WAS CORRECT IN THIS REGARD, IT WAS ALSO CORRECT THAT
IT NEED NOT DEFER TO THE BOARD."  411 U.S., AT 577. 

/5/ ALTHOUGH THE DISTRICT COURT HELD A LIMITED EVIDENTIARY HEARING
ON HOLFANT'S REQUEST FOR A PRELIMINARY INJUNCTION, THE STATE'S MOTION
TO DISMISS WAS GRANTED PURSUANT TO FED. RULE CIV. PROC. 12(B)(6)
WITHOUT EITHER FINDINGS OF FACT OR CONCLUSIONS OF LAW.  ACCORDINGLY, IN
DETERMINING WHETHER THE COMPLAINT STATED A CLAIM UPON WHICH RELIEF
COULD BE GRANTED, ITS FACTUAL ALLEGATIONS WERE TO BE TAKEN AS TRUE. 
SEE, E.G., CRUZ V. BETO, 405 U.S. 319, 322. 

/6/ ALTHOUGH HELFANT ARGUES THAT THE COLLUSIVE ACTIONS OF MEMBERS OF
THE STATE SUPREME COURT AND THE DEPUTY ATTORNEY GENERAL DEMONSTRATE
PROSECUTORIAL BAD FAITH WARRANTING FEDERAL INTERVENTION, "BAD FAITH" IN
THIS CONTEXT GENERALLY MEANS THAT A PROSECUTION HAS BEEN BROUGHT
WITHOUT A REASONABLE EXPECTATION OF OBTAINING A VALID CONVICTION.  SEE
PEREZ V. LEDESMA, 401 U.S., AT 85.  NOTHING IN HELFANT'S COMPLAINT
WOULD SUPPORT A FINDING OF "BAD FAITH," AS SO DEFINED.  HOWEVER HE MAY
CHOOSE TO DESCRIBE IT, THE GRAVAMEN OF HELFANT'S COMPLAINT IS THAT
MEMBERS OF THE NEW JERSEY JUDICIARY HAVE BECOME SO PERSONALLY INVOLVED
IN HIS CASE THAT IT IS IMPOSSIBLE FOR HIM TO RECEIVE A FAIR HEARING IN
THE STATE-COURT SYSTEM. 

/7/ SIMILARLY, THERE CAN BE NO REASON TO ASSUME THAT TRIAL AND
APPELLATE JUDGES UNDER THE SUPERVISORY AUTHORITY OF THE NEW CHIEF
JUSTICE WILL BE INFLUENCED BY THE ROLE PLAYED BY FORMER MEMBERS OF THE
STATE SUPREME COURT IN INDUCING HELFANT'S GRAND JURY TESTIMONY. 

/8/ THE INEERNAL QUOTATION IS FROM DOUGLAS V. CITY OF JEANNETTE, 319
U.S. 157, 163. 

/9/ IN DOMBROWSKI V. PFISTER, 380 U.S. 479, 485 N. 3, THE COURT
NOTED:  " IT IS DIFFICULT TO THINK OF A CASE IN WHICH AN ACCUSED COULD
PROPERLY BRING A STATE PROSECUTION TO A HALT WHILE A FEDERAL COURT
DECIDES HIS CLAIM THAT CERTAIN EVIDENCE IS RENDERED INADMISSIBLE BY THE
FOURTEENTH AMENDMENT." 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES.  MR. JUSTICE BREHNAN TOOK NO PARR IN THE DECISION OF THESE
CASES. 

DAVID S. BAIME, DEPUTY ATTORNEY GENERAL OF NEW JERSEY, ARGUED THE
CAUSE FOR PETITIONERS IN NO. 74 - 80 AND RESPONDENTS IN NO. 74 - 277. 
WITH HIM ON THE BRIEFS WERE WILLIAM F. HYLAND, ATTORNEY GENERAL, AND
GLENN E. KUSHEL, DEPUTY ATTORNEY GENERAL. 

MARVIN D. PERSKIE ARGUED THE CAUSE FOR PETITIONER IN NO. 74 - 277
AND RESPONDENT IN NO. 74 - 80.  WITH HIM ON THE BRIEFS WAS PATRICK T.
MC GAHN, JR.
..END :












NLRB V. SEARS, ROEBUCK & CO., 421 U.S. 132 


       NATIONAL LABOR RELATIONS BOARD ET AL. V. SEARS, ROEBUCK &

           CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 73 - 1233.  ARGUED JANUARY 14, 1975--DECIDED APRIL 28,

           1975; 156 U.S. APP. D.C. 303, 480 F.2D 1195, AFFIRMED IN

           PART, REVERSED IN PART, AND REMANDED. 


    UNDER THE PROCEDURE FOR ADJUDICATING UNFAIR LABOR PRACTICE

  CASES UNDER THE NATIONAL LABOR RELATIONS ACT, IF A NATIONAL LABOR

  RELATIONS BOARD (NLRB) REGIONAL DIRECTOR, WITH WHOM UNFAIR LABOR

  PRACTICE CHARGES ARE FILED IN THE FIRST INSTANCE AND TO WHOM THE

  NLRB'S GENERAL COUNSEL HAS DELEGATED THE INITIAL POWER TO DECIDE

  WHETHER OR NOT TO ISSUE A COMPLAINT, BELIEVES THAT THE CHARGE HAS

  NO MERIT, THE CHARGING PARTY HAS A RIGHT TO APPEAL TO THE GENERAL

  COUNSEL.  IF THIS RIGHT IS EXERCISED, THE FILE IS SENT TO THE

  OFFICE OF APPEALS IN THE GENERAL COUNSEL'S OFFICE, AND THE

  APPEALS COMMITTEE THEN DECIDES EITHER TO SUSTAIN OR OVERRULE THE

  REGIONAL DIRECTOR, AND SETS FORTH THE DECISION AND SUPPORTING

  REASONS IN AN APPEALS MEMORANDUM, WHICH IS CLEARED THROUGH THE

  GENERAL COUNSEL REQUIRES THE REGIONAL DIRECTOR, BEFORE REACHING

  AN INITIAL DECISION IN CONNECTION WITH UNFAIR LABOR PRACTICE

  CHARGES RAISING CERTAIN ISSUES, TO SUBMIT THE MATTER TO THE

  GENERAL CLUNSEL'S ADVICE BRANCH, AND IN OTHER KINDS OF UNFAIR

  LABOR PRACTICE CASES THE REGIONAL DIRECTORS ARE PERMITTED TO SEEK

  THE ADVICE BRANCH'S ADVICE.  THE ADVICE BRANCH, AFTER STUDYING

  THE MATTER, MAKES A RECOMMENDATION TO THE GENERAL COUNSEL, WHO

  THEN MAKES A "FINAL DETERMINATION" WHICH IS COMMUNICATED TO THE

  REGIONAL DIRECTOR BY WAY OF AN ADVICE MEMORANDUM.  DEPENDING UPON

  THE CONCLUSION REACHED IN SUCH MEMORANDUM, THE REGIONAL DIRECTOR

  WILL EITHER FILE A COMPLAINT OR NOTIFY THE COMPLAINING PARTY OF

  THE DECISION NOT TO PROCEED AND OF HIS RIGHT TO APPEAL. 

  RESPONDENT, AFTER THE GENERAL COUNSEL HAD DECLINED TO DISCLOSE

ALL ADVICE AND APPEALS MEMORANDA PERTAINING TO CERTAIN MATTERS

  ISSUED WITHIN A CERTAIN NUMBER OF YEARS, FILED SUIT TO REQUIRE

  DISCLOSURE OF SUCH MEMORANDA, ALLEGING VIOLATIONS OF THE FREEDOM

  OF INFORMATION ACT, 5 U.S.C. SEC. 552.  THE DISTRICT COURT

  GRANTED RESPONDENT'S MOTION FOR A SUMMARY JUDGMENT, HOLDING THAT

  THE ADVICE MEMORANDA WERE "INSTRUCTIONS TO STAFF THAT AFFECT A

  MEMBER OF THE PUBLIC" REQUIRED TO BE DISCLOSED UNDER SEC.

  552(A)(2)(C), THAT THE APPEALS MEMORANDA WERE "FINAL OPINIONS"

  REQUIRED TO BE DISCLOSED UNDER SEC. 552 (A)(2)(A), AND THAT BOTH

  KINDS OF MEMEORANDA WERE NOT EXEMPT FROM DISCLOSURE AS

  "INTRA-AGENCY MEMORANDUMS" UNDER SEC. 552(B) (5) (EXEMPTION 5). 

  ##HC133 THE COURT OF APPEALS AFFIRMED WITHOUT OPINION.  HELD: 

     1.  EXEMPTION 5 CAN NEVER APPLY TO "FINAL OPINIONS," WHICH NOT

  ONLY INVARIABLY EXPLAIN AGENCY ACTION ALREADY TAKEN OR AN AGENCY

  DECISION ALREADY MADE, BUT ALSO CONSTITUTE "FINAL DISPOSITIONS"

  OF MATTERS BY AN AGENCY.  PP. 150 - 154. 

     2.  EXEMPTION 5 COVERS THE ATTORNEY WORK-PRODUCT RULE WHICH

  CLEARLY APPLIES TO MEMORANDA PREPARED BY AN ATTORNEY IN

  CONTEMPLATION OF LITIGATION AND SETTING FORTH THE ATTORNEY'S

  THEORY OF THE CASE AND HIS LITIGATION STRATEGY.  PP. 154 - 155. 

     3.  THOSE ADVICE AND APPEALS MEMORANDA THAT EXPLAIN DECISIONS

  BY THE GENERAL COUNSEL NOT TO FILE A COMPLAINT ARE "FINAL

  OPINIONS" MADE IN THE "ADJUDICATION OF CASES" WITHIN THE MEANING

 OF SEC. 552 (A)(2)(A), AND HENCE FALL OUTSIDE THE SCOPE OF

  EXEMPTION 5 AND MUST BE DISCLOSED.  PP. 155 - 159. 

   (A) IN THE CASE OF DECISIONS NOT TO FILE A COMPLAINT, EACH OF

  SUCH MEMORANDA EFFECTS AS "FINAL" A "DISPOSITION" AS AN

  ADMINISTRATIVE DECISION CAN, AND DISCLOSURE OF THESE MEMORANDA

  WOULD NOT INTRUDE ON PREDECISIONAL PROCESSES NOR WOULD PROTECTING

  THEM IMPROVE THE QUALITY OF AGENCY DECISIONS WITHIN THE PURPOSES

  OF THE "EXECUTIVE PRIVILEGE" EMBODIED IN EXEMPTION 5, SINCE WHEN

  THE MEMORANDA ARE COMMUNICATED TO THE REGIONAL DIRECTOR, THE

  GENERAL COUNSEL HAS ALREADY REACHED HIS DECISION AND THE REGIONAL

  DIRECTOR HAS NO DECISION TO MAKE BUT IS BOUND TO DISMISS THE

 CHARGE.  P. 155. 

     (B) MOREOVER, THE GENERAL COUNSEL'S DECISIONS NOT TO FILE

  COMPLAINTS TOGETHER WITH THE ADVICE AND APPEALS MEMORANDA

  EXPLAINING THEM, ARE PRECISELY THE KIND OF AGENCY LAW IN WHICH

  THE PUBLIC IS SO VITALLY INTERESTED AND WHICH CONGRESS SOUGHT TO

  PREVENT THE AGENCY FROM KEEPING SECRET.  PP. 155 - 157. 

     4.  THOSE ADVICE AND APPEALS MEMORANDA THAT EXPLAIN DECISIONS

  BY THE GENERAL COUNSEL TO FILE A COMPLAINT AND COMMENCE

  LITIGATION BEFORE THE NLRB ARE NOT "FINAL OPINIONS" MADE IN THE

  "ADJUDICATION OF CASES" WITHIN THE MEANING OF SEC. 552 (A)(2)(A)

  AND DO FALL WITHIN THE SCOPE OF EXEMPTION 5.  PP. 159 - 160. 

     (A) THE FILING OF A COMPLAINT DOES NOT FINALLY DISPOSE EVEN OF

  THE GENERAL COUNSEL'S RESPONSIBILITY WITH RESPECT TO THE CASE,

  SINCE THE CASE WILL BE LITIGATED BEFORE AND DECIDED BY THE NLRB,

  AND THE GENERAL CLUNSEL WILL BE RESPONSIBLE FOR ADVOCATING THE

  CHARGING PARTY'S POSITION BEFORE THE NLRB.  P. 159. 

     (B) SINCE THE MEMORANDA WILL ALSO HAVE BEEN PREPARED IN

  CONTEMPLATION OF THE UPCOMING LITIGATION, THEY FALL SQUARELY

  WITHIN EXEMPTION 5'S PROTECTION OF AN ATTORNEY'S WORK PRODUCT,

 AND AT THE SAME TIME THE PUBLICHS INTEREST IN DISCLOSURE IS

  SUBSTANTIALLY REDUCED BY THE FACT THAT THE BASIS FOR THE GENERAL

  COUNSEL'S DECISION TO FILE A COMPLAINT WILL DEVELOP IN THE COURSE

  OF LITIGATION BEFORE THE NLRB AND THAT THE "LAW" WITH RESPECT TO

  THESE CASES WILL ULTIMATELY BE MADE NOT BY THE GENERAL COUNSEL

  BUT BY THE NLRB OR THE COURTS.  PP. 159 - 160. 

     5.  THE DOCUMENTS INCORPORATED BY REFERENCE IN NONEXEMPT
ADVICE

  AND APPEALS MEMORANDA LOSE ANY EXEMPTION THEY MIGHT PREVIOUSLY

  HAVE HELD AS "INTRA-AGENCY" MEMORANDA UNDER EXEMPTION 5, AND IF

  AN AGENCY CHOOSES EXPRESSLY TO ADOPT OR INCORPORATE BY REFERENCE

  AN INTRA-AGENCY MEMORANDUM PREVIOUSLY COVERED BY EXEMPTION 5 IN

  WHAT WOULD OTHERWISE BE A FINAL OPINION, THAT MEMORANDUM MAY BE

  WITHHELD ONLY ON THE GROUND THAT IT IS COVERED BY SOME EXEMPTION

  OTHER THAN EXEMPTION 5.  P. 161. 

     6.  PETITIONERS ARE NOT REQUIRED TO PRODUCE OR CREATE

  EXPLANATORY MATERIAL IN THOSE INSTANCES IN WHICH AN APPEALS

  MEMORANDUM REFERS TO THE "CIRCUMSTANCES OF THE CASES," NOR ARE

  THEY REQUIRED TO IDENTIFY, AFTER THE FACT, THOSE PRE-EXISTING

  DOCUMENTS THAT CONTAIN THE "CIRCUMSTANCES OF A CASE" TO WHICH AN

  OPINION MAY HAVE REFERRED, AND WHICH ARE NOT IDENTIFIED BY THE

  PARTY SEEKING DISCLOSURE.  PP. 191 - 162. 

     7.  THIS COURT WILL NOT ADJUDICATE PETITIONERS' CLAIM THAT THE

  ADVICE AND APPEALS MEMORANDA ARE EXEMPT FROM DISCLOSURE UNDER 5

  U.S.C. SEC. 552(B)(7) (EXEMPTION 7) AS "INVESTIGATORY FILES

  COMPLIED FOR LAW ENFORCEMENT PURPOSES."  THAT CLAIM WAS NOT MADE

  IN THE DISTRICT COURT AND, ALTHOUGH IT WAS MADE IN THE COURT OF

  APPEALS, THAT COURT AFFIRMED WITHOUT OPINION ON THE BASIS OF ITS

  PRIOR DECISION IN ANOTHER CASE NOT INVOLVING EXEMPTION 7, AND IT

  IS THEREFORE NOT CLEAR WHETHER THAT COURT PASSED ON THE CLAIM. 

  MOREOVER, CONGRESS PASSED A LIMITING AMENDMENT TO EXEMPTION 7

  AFTER PETITIONERS FILED THEIR BRIEF, AND THUS ANY DECISION OF THE

  EXEMPTION 7 ISSUE IN THIS CASE WOULD HAVE TO BE MADE UNDER THE

  EXEMPTION AS AMENDED, WHICH COULD NOT HAVE BEEN DONE BY THE

  COURTS BELOW.  PP. 162 - 165. 

     8.  NOR WILL THIS COURT REACH PETITIONERS' CLAIM THAT THE

  ADVICE AND APPEALS MEMORANDA ARE EXEMPT FROM DISCLOSURE UNDER

  SEC. 552(B)(2) (EXEMPTION 2) AS DOCUMENTS "RELATED SOLELY TO THE

  INTERNAL PERSONNEL RULES AND PRACTICES OF AN AGENCY," THAT CLAIM

NOT HAVING BEEN RAISED BELOW.  P. 165. 

     9.  PETITIONERS' CLAIM THAT THE DOCUMENTS INCORPORATED BY

  REFERENCE IN ADVICE AND APPEALS MEMORANDA, WHICH WERE PREVIOUSLY

  PROTECTED FROM DISCLOSURE BY EXEMPTION 7, SHOULD NOT LOSE THEIR

  EXEMPT STATUS BY REASON OF INCORPORATION, HAS MERIT, SINCE A

  DOCUMENT PROTECTED BY EXEMPTION 7 DOES NOT BECOME DISCLOSABLE

  SOLELY BECAUSE IT IS REFERRED TO IN A "FINAL OPINION," AND

  ACCORDINGLY THE CASE MUST BE REMANDED TO THE DISTRICT COURT FOR A

  DETERMINATION WHETHER SUCH DOCUMENTS ARE PROTECTED BY EXEMPTION

  7, AS AMENDED.  PP. 165 - 167. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, STEWART, MARSHALL, BLACKMUN, AND REHNQUIST,

  JJ., JOINED.  BURGER, C.J., CONCURRED IN THE JUDGMENT.  POWELL,

  J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD (THE BOARD) AND ITS GENERAL
COUNSEL SEEK TO SET ASIDE AN ORDER OF THE UNITED STATES DISTRICT COURT
DIRECTING DISCLOSURE TO RESPONDENT, SEARS, ROEBUCK & CO. (SEARS),
PURSUANT TO THE FREEDOM OF INFORMATION ACT, 5 U.S.C. SEC. 552 (THE
ACT), OF CERTAIN MEMORANDA, KNOWN AS " ADVICE MEMORANDA" AND " APPEALS
MEMORANDA," AND RELATED TOCUMENTS GENERATED BY THE OFFICE OF THE
GENERAL COUNSEL IN THE COURSE OF DECIDING WHETHER OR NOT TO PERMIT THE
FILING WITH THE BOARD OF UNFAIR LABOR PRACTICE COMPLAINTS. 

THE ACT'S BACKGROUND AND ITS PRINCIPAL OBJECTIVES ARE DESCRIBED IN
EPA V. MINK, 410 U.S. 73, 79 - 80 (1973), AND WILL NOT BE REPEATED
HERE.  IT IS SUFFICIENT TO NOTE FOR PRESENT PURPOSES THAT THE ACT SEEKS
T"TO ESTABLISH A GENERAL PHILOSOPHY OF FULL AGENCY DISCLOSURE UNLESS
INFORMATION IS EXEMPTED UNDER CLEARLY DELINEATED STATUTORY LANGUAGE." 
S. REP. NO. 813, 89TH CONG., 1ST SESS., 3 (1965) (HEREINAFTER S. REP.
NO. 813); EPA V. MINK, SUPRA, AT 80.  AS THE ACT IS STRUCTURED,
VIRTUALLY EVERY DOCUMENT GENERATED BY AN AGENCY IS AVAILABLE TO THE
PUBLIC IN ONE FORM OR ANOTHER, UNLESS IT FALLS WITHIN ONE OF THE ACT'S
NINE EXEMPTIONS.  CERTAIN DOCUMENTS DESCRIBED IN 5 U.S.C. SEC.
552(A)(1) SUCH AS "RULES OF PROCEDURE" MUST BE PUBLISHED IN THE FEDERAL
REGISTER; OTHERS, INCLUDING "FINAL OPINIONS . . . MADE IN THE
ADJUDICATION OF CASES," STATEMENTS OF POLICY AND INTERPRETATIONS WHICH
HAVE BEEN ADOPTED BY THE AGENCY8" AND "INSTRUCTIONS TO STAFF THAT
AFFECT A MEMBER OF THE PUBLIC."  DESCRIBED IN 5 U.S.C. SEC. 552 (A)(2),
/1/ MUST BE INDEXED AND MADE AVAILABLE TO A MEMBER OF THE PUBLIC ON
DEMAND, H.R. REP. NO. 1497, 89TH CONG., 2D SESS., 8 (1966) (HEREINAFTER
H.R. REP. NO. 1497).  FINALLY, AND MORE COMPREHENSIVELY, ALL
"IDENTIFIABLE RECORDS" MUST BE MADE AVAILABLE TO A MEMBER OF THE PUBLIC
ON DEMAND.  5 U.S.C. SEC. 552(A)(3).  /2/ THE ACT EXPRESSLY STATES,
HOWEVER, THAT THE DESCRIBED IN THE NINE ENUMERATED EXEMPT CATEGORIES
LISTED IN SEC. 552(B).  /3/ 

SEARS CLAIMS, AND THE COURTS BELOW RULED, THAT THE MEMORANDA SOUGHT
ARE EXPRESSIONS OF LEGAL AND POLICY DECISIONS ALREADY ADOPTED BY THE
AGENCY AND CONSTITUTE "FINAL OPINIONS" AND "INSTRUCTIONS TO STAFF THAT
AFFECT A MEMBER OF THE PUBLIC," BOTH CATEGORIES BEING EXPRESSLY
DISCLOSABLE UNDER SEC. 552(A)(2) OF THE ACT, PURSUANT TO ITS PURPOSES
TO PREVENT THE CREATION OF "SECRET LAW."  IN ANY EVENT, SEARS CLAIMS,
THE MEMORANDA ARE NONEXEMPT "IDENTIFIABLE RECORDS" WHICH MUST BE
DISCLOSED UNDER SEC. 552 (A)(3).  THE GENERAL COUNSEL, ON THE OTHER
HAND, CLAIMS THAT THE MEMORANDA SOUGHT HERE ARE NOT FINAL OPINIONS
UNDER SEC. 552(A)(2) AND THAT EVEN IF THEY ARE "IDENTIFIABLE RECORDS"
OTHERWISE DISCLOSABLE UNDER SEC. 552(A)(3), THEY ARE EXEMPT UNDER SEC.
552(B), PRINCIPALLY AS "INTRA-AGENCY"  COMMUNICATIONS UNDER SEC.
552(B)(5) (EXEMPTION 5), MADE IN THE COURSE OF FORMULATING AGENCY
DECISIONS ON LEGAL AND POLICY MATTERS. 

        I 

CRUCIAL TO THE DECISION OF THIS CADE IS AN UNDERSTANDING OF THE
FUNCTION OF THE DOCUMENTS IN ISSUE IN THE CONTEXT OF THE ADMINISTRATIVE
PROCESS WHICH GENERATED THEM.  WE DEAL WITH THIS MATTER FIRST.  UNDER
SEC. 1 ET SEQ. OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE
LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 136, 29 U.S.C. SEC. 151
ET SEQ., THE PROCES OF ADJUCICATING UNFAIR LABOR PRACTICE CASES BEGINS
WITH THE FILING BY A PRIVATE PARTY OF A "CHARGE," SEC. 3(D) AND 10(B),
29 U.S.C. SEC. 153(D) AND 160(B); 29 CFR SEC. 101.2 (1974); AUTO
WORKERS V. SCOFIELD, 382 U.S. 205, 219 (1965); NLRB V. INDIANA &
MICHIGAN ELECTRIC CO., 318 U.S. 9, 17 - 18 (1943).  ALTHOUGH CONGRESS
HAS DESIGNATED THE BOARD AS THE PRINCIPAL BODY WHICH ADJUDICATES TEH
UNFAIR LABOR PRACTICE CASE BASED ON SUCH CHARGE, 29 U.S.C. SEC. 160,
THE BOARD MAY ADJUDICATE ONLY UPON THE FILING OF A "COMPLAINT"; AND
CONGRESS HAS DELEGATED TO THE OOFICE OF GENERAL COUNSEL "ON BEHALF OF
THE BOARD" THE UNREVIEWABLE AUTHORITY TO DETERMINE WHETHER A COMPLAINT
SHALL BE FILED.  29 U.S.C. SEC. 153(D); VACA V. SIPES, 386 U.S. 171,
182 (1967).  IN THOSE CASES IN WHICH HE DECIDES THAT A COMPLAINT SHALL
ISSUE, THE GENERAL COUNSEL BECOMES AN ADVOCATE BEFORE THE BOARD IN
SUPPORT OF THE COMPLAINT.  IN THOSE CASES IN WHICH HE DECIDES NOT TO
ISSUE A COMPLAINT, NO PROCEEDING BEFORE THE BOARD OCCURS AT ALL.  THE
PRACTICAL EFFECT OF THIS ADMINISTRATIVE SCHEME IS THAT A PARTY
BELIEVING HIMSELF THE VICTIM OF AN UNFAIR LABOR PRACTICE CAN OBTAIN
NEITHER ADJUDICATION NOR REMEDY UNDER THE LABOR STATUTE WITHOUT FIRST
PERSUADING THE OFFICE OF GENERAL COUNSEL THAT HIS CLAIM IS SUFFICIENTLY
MERITORIOUS TO WARRANT BOARD CONSIDERATION. 

IN ORDER TO STRUCTURE THE CONSIDERABLE POWER WHICH THE
ADMINISTRATIVE SCHEME GIVES HIM, THE GENERAL COUNSEL HAS ADOPTED
CERTAIN PROCEDURES FOR PROCESSING UNFAIR LABOR PRACTICE CHARGES. 
CHARGES ARE FILED IN THE FIRST INSTANCE WITH ONE OF THE BOARD'S 31
REGIIONAL DIRECTORS, /4/ TO WHOM THE GENERAL COUNSEL HAS DELAGETED THE
INITIAL POWER TO DECIDE WHETHER OR NOT TO ISSUE A COMPLAINT.  29 CFR
SEC. 101.8, 102.10.  A MEMBER OF THE STAFF OF THE REGIONAL OFFICE THEN
CONDUCTS AN INVESTIGATION OF THE CHARGE, WHICH MAY INCLUDE INTERVIEWING
WITNESSES AND REVIEWING DOCUMENTS.  29 CFR SEC. 101.4.  IF, ON THE
BASIS OF THE INVESTIGATION, THE REGIONAL DIRECTOR BELIEVES THE CHARGE
HAS MERIT, A SETTLEMENT WILL BE ATTEMPTED, OR A COMPLAINT ISSUED.  IF
THE CHARGE HAS NO MERIT IN THE REGIONAL DIRECTOR'S JUDGMENT, THE
CHARGING PARTY WILL BE SO INFORMED BY LETTER WITH A BRIEF EXPLANATION
OF THE REASONS.  29 CFR SEC. 101.6, 101.8, 102.15, 102.19.  IN SUCH A
CASE, THE CHARGING PARTY WILL ALSO BE INFORMED OF HIS RIGHT TO APPEAL
WITHIN 10 DAYS TO THE OFFICE OF THE GENERAL COUNSEL IN WASHINGTON, D.C.
29 CFR SEC. 101.6, 102.19. 

IF THE CHARGING PARTY EXERCISES THIS RIGHT, THE ENTIRE FILE IN THE
POSSESSION OF THE REGIONAL DIRECTOR WILL BE SENT TO THE OFFICE OF
APPEALS IN THE GENERAL COUNSEL'S OFFICE IN WASHINGTON, D.C.  THE CASE
WILL BE ASSIGNED TO A STAFF ATTORNEY IN THE OFFICE OF APPEALS, WHO
PREPARES A MEMORANDUM CONTAINING AN ANALYSIS OF THE FACTUAL AND LEGAL
ISSUES IN THE CASE.  THIS MEMORANDUM IS CALLED AN "AGENDA MINUTE"  /5/
AND SERVES AS THE BASIS FOR DISCUSSION AT A MEETING OF THE "  APPEALS
COMMITTEE," WHICH INCLUDES THE DIRECTOR AND ASSOCIATE DIEECTOR OF THE
OFFICE OF APPEALS.  AT SOME POINT IN THIS PERIOD, THE CHARGING PARTY
MAY MAKE A WRITTEN PRESENTATION OF HIS CASE AS OF RIGHT AND AN ORAL
PRESENTATION IN THE DISCRETION OF THE GENERAL COUNSEL.  29 CFR SEC.
102.19.  IF AN ORAL PRESENTATION IS ALLOWED, THE SUBJECT OF THE UNFAIR
LABOE PRACTICE CHARGE IS NOTIFIED AND ALLOWED A SIMILAR BUT SEPARATE
OPPORTUNITY TO MAKE AN ORAL PRESENTATION.  IN ANY EVENT, A DECISION IS
REACHED BY THE APPEALS COMMITTEE; AND THE DECISION AND THE REASONS FOR
IT ARE SET FORTH IN A MEMORANDUM CALLED THE " GENERAL COUNSEL'S MINUTE"
OR THE " APPEALS MEMORANDUM."  THIS DOCUMENT IS THEN CLEARED THROUGH
THE GENERAL COUNSEL HIMSELF.  IF THE CASE IS UNUSUALLY COMPLEX OR
IMPORTANT, THE GENERAL COUNSEL WILL HAVE BEEN BROUGHT INTO THE PROCESS
AT AN EARLIER STAGE AND WILL HAVE HAD A HAND IN THE DECISION AND THE
EXPRESSION OF ITS BASIS IN THE APPEALS MMORANDUM.  IN EITHER EVENT, THE
APPEALS MEMORANDUM IS THEN SENT TO THE REGIONAL DIRECTOR WHO FOLLOWS
ITS INSTRUCTIONS.  IF THE APPEAL IS REJECTED AND THE REGIONAL
CIRECTOR'S DECISION NOT TO ISSUE A COMPLAINT IS SUSTAINED, A SEPARATE
DOCUMENT IS PREPARED AND SENT BY THE GENERAL COUNSEL IN LETTER FORM TO
THE CHARGING PARTY, MORE BRIEFLY SETTING FORTH THE REASONS FOR THE
DENIAL OF HIS APPEAL.  /6/ THE APPEALS MEMORANDA, WHETHER SUSTAINING OR
OVERRULING THE REGIONAL DIRECTORS, CONSTITUTE ONE CLASS OF DOCUMENTS AT
ISSUE IN THIS CASE. 

THE APPEALS PROCESS AFFORDS THE GENERAL COUNSEL'S OFFICE IN
WASHINGTON SOME OPPORTUNITY TO FORMULATE A COHERENT POLICY, AND TO
ACHIEVE SOME MEASURE OF UNIFORMITY, IN ENFORCING THE LABOR LAWS.  THE
APPEALS PROCESS ALONE, HOWEVER, IS NOT WHOLLY ADEQUATE FOR THIS
PURPOSE:  WHEN THE REGIONAL DIRECTOR INITIALLY DECIDES TO FILE A
COMPLAINT, NO APPEAL IS AVAILABLE; AND WHEN THE REGIIOAL DIRECTOR
DECIDES NOT TO FILE A COMPLAINT, THE CHARGING PARTY MAY NEGLECT TO
APPEAL.  ACCORDINGLY, TO FURTHER "FAIR AND UNIFORM ADMINISTRATION OF
THE ACT," /7/ THE GENERAL COUNSEL REQUIRES THE REGIONAL CIRECTORS,
BEFORE REACHING AN INITIAL DECISION IN CONNECTION WITH CHARGES RAISING
CERTAIN ISSUES SPECIFIED BY THE GENERAL COUNSEL, TO SUBMIT THE MATTER
TO THE GENERAL COUNSEL'S " ADVICE BRANCH," ALSO LOCATED IN WASHINGTON,
D.C. IN YET OTHER KINDS OF CASES, THE REGIONAL DIRECTORS ARE PERMITTED
TO SEEK THE COUNSEL OF THE ADVICE BRANCH. 

WHEN A REGIONAL DIRECTOR SEEKS "ADVICE" FROM THE ADVICE BRANCH, HE
DOES SO THROUGH A MEMORANDUM WHICH SETS FORTH THE FACTS OF THE CASE, A
STATEMENT OF THE ISSUES ON WHICH ADVICE IS SOUGHT, AND A
RECOMMENDATION.  THE CASE IS THEN ASSIGNED TO A STAFF ATTORNEY IN THE
ADVICE BRANCH WHO RESEARCHES THE LEGAL ISSUES PRESENTED BY READING
PRIOR BOARD AND COURT DECISIONS AND "PRIOR ADVICE DETERMINATIONS IN
SIMILAR OR RELATED CASES," STATEMENT 3076, /8/ AND REPORTS, ORALLY OR
IN WRITING, TO A COMMITTEE OR "AGENDA" MADE UP OF VARIOUS HIGH-RANKING
MEMBERS OF THE GENERAL COUNSEL'S OFFICE.  THE COMMITTED RECOMMENDATION
IS THEN ARRIVED AT AND COMMUNICATED TO THE GENERAL COUNSEL, TOGETHER
WITH THE GENERAL COUNSEL MAY SCHEDULE SPECIAL AGENDAS AND INVITE OTHER
STAFF MEMBERS TO SUBMIT THEIR RECOMMENDATIONS.  IN EITHER EVENT, THE
GENERAL COUNSEL WILL DECIDE THE ISSUE SUBMITTED, AND HIS "FINAL
DETERMINATION" WILL BE COMMUNICATED TO THE REGIONAL DIRECTOR BY WAY OF
AN ADVICE MEMORANDUM.  THE MEMORANDUM WILL BRIEFLY SUMMARIZE THE FACTS,
AGAINST THE BACKGROUND OF WHICH THE LEGAL OR POLICY ISSUE IS TO BE
DECIDED, SET FORTH THE GENERAL COUNSELHS ANSWER TO THE LEGAL OR POLICY
ISSUE SUBMITTED TOGETHER WITH A "DETAILED LEGAL RATIONALE," AND CONTAIN
"INSTRUCTIONS FOR THE FINAL PROCESSING OF THE CASE."  IBID.  DEPENDING
UPON THE CONCLUSION REACHED IN THE MEMORANDUM, THE REGIONAL DIRECTOR
WILL EITHER FILE A COMPLAINT OR SEND A LETTER TO THE COMPLAINING PARTY
ADVISING HIM OF THE REGIONAL DIRECTOR'S DECISION NOT TO PROCEED AND
INFORMING HIM OF HIS RIGHT TO APPEAL.  IT IS THESE ADVICE MEMORANDA
WHICH CONSTITUTE THE OTHER CLASS OF DOCUMENTS OF WHICH SEARS SEEKS
DISCLOSURE IN THIS CASE. 

        II 

THIS CASE AROSE IN THE FOLLOWING CONTEXT.  BY LETTER DATED JULY 14,
1971, SEARS REQUESTED THAT THE GENERAL COUNSEL DISCLOSE TO IT PURSUANT
TO THE ACT ALL ADVICE AND APPEALS MEMORANDA ISSUED WITHIN THE PREVIOUS
FIVE YEARS ON THE SUBJECTS OF "THE PROPRIETY OF WITHDRAWALS BY
EMPLOYERS OR UNIONS FROM MULTI-EMPLOYER BARGAINING, DISPUTES AS TO
COMMENCEMENT DATE OF NEGOTIATIONS, OR CONFLICTING INTERPRETATIONS IN
ANY OTHER CONTEXT OF THE BOARD'S RETAIL ASSOCIATES (120 NLRB 388)
RULE."  /9/ THE LETTER ALSO SOUGHT THE SUBJECT-MATTER INDEX OR DIGEST
OF ADVICE AND APPEALS MEMORANDA.  /10/ THE LETTER URGED DISCLOSURE ON
THE THEORY THAT THE ADVICE AND APPEALS MEMORANDA ARE THE ONLY SOURCE OF
AGENCY "LAW" ON SOME ISSUES.  BY LETTER DATED JULY 23, 1971, THE
GENERAL COUNSEL DECLINED SEARS' DISCLOSURE REQUEST IN FULL.  THE LETTER
STATED THAT ADVICE MEMORANDA ARE SIMPLY "GUIDES FOR A REGIONAL
DIRECTOR" AND ARE NOT FINAL; THAT THEY ARE EXEMPT FROM DISCLOSURE UNDER
5 U.S.C. SEC. 552(B)(5) AS "INTRA-AGENCY MEMORANDA" WHICH REFLECT THE
THOUGHT PROCESSES OF THE GENERAL COUNSEL'S STAFF; AND THAT THEY ARE
EXEMPT PURSUANT TO 5 U.S.C. SEC. 552(B)(7) AS PART OF THE
"INVESTIGATIVE PROCESS."  THE LETTER SAID THAT APPEALS MEMORANDA WERE
NOT INDEXED BY SUBJECT MATTER AND, THEREFORE, THE GENERAL COUNSEL WAS
"UNABLE" TO COMPLY WITH SEARS' REQUEST.  IN FURTHER EXPLANATION OF HIS
DECISION, WITH RESPECT TO APPEALS MEMORANDA, THE GENERAL COUNSEL WROTE
TO SEARS ON AUGUST 4, 1971, AND STATED THAT APPEALS MEMORANDA WHICH
ORDERED THE FILING OF A COMPLAINT WERE NOT "FINAL OPINIONS."  /11/ THE
LETTER FURTHER STATED THAT THOSE APPEALS MEMORANDA WHICH WERE "FINAL
OPINIONS, I.E., THOSE IN WHICH AN APPEAL WAS DENIED" AND WHICH DIRECTED
THAT NO COMPLAINT BE FILED, NUMBERED SEVERAL THOUSAND, AND THAT IN THE
GENERAL COUNSEL'S VIEW THEY HAD NO PRECEDENTIAL SIGNIFICANCE. 
ACCORDINGLY, IF DISCLOSABLE AT ALL, THEY WERE DISCLOSABLE UNDER 5
U.S.C. SEC. 552 (A)(3) RELATING TO "IDENTIFIABLE RECORDS."  THE GENERAL
COUNSEL THEN SAID THAT SEARS HAD FAILED ADEQUATELY TO IDENTIFY THE
MATERIAL SOUGHT AND THAT HE COULD NOT JUSTIFY THE EXPENDITURE OF TIME
NECESSARY FOR THE AGENCY TO IDENTIFY THEM. 

ON AUGUST 4, 1971, SEARS FILED A COMPLAINT PURSUANT TO THE ACT
SEEKING A DECLARATION THAT THE GENERAL COUNSEL'S REFUSAL TO DISCLOSE
THE ADVICE AND APPEALS MEMORANDA AND INDICES THEREOF REQUESTED BY SEARS
VIOLATED THE ACT, AND AN INJUNCTION ENJOINING CONTINUED VIOLATIONS OF
THE ACT.  ON AUGUST 24, 1971, THE CURRENT GENERAL COUNSEL TOOK OFFICE. 
IN ORDER TO GIVE HIM TIME TO DEVELOP HIS OWN DISCLOSURE POLICY, THE
FILING OF HIS ANSWER WAS POSTPONED UNTIL FEBRUARY 3, 1972.  THE ANSWER
DENIED THAT THE ACT REQUIRED DISCLOSURE OF ANY OF THE DOCUMANTS SOUGHT
BUT REFERRED TO A LETTER OF THE SAME DATE IN WHICH THE GENERAL COUNSED
INFORMED SEARS THAT HE WOULD MAKE AVAILABLE THE INDEX TO ADVICE
MEMORANDA AND ALSO ALL ADVICE AND APPEALS MEMORANDA IN CASES WHICH HAD
BEEN CLOSED--EITHER BACAUSE LITIGATION BEFORE THE BOARD HAD BEEN
COMPLETED OR BECAUSE A DECISION NOT TO FILE A COMPLAINT HAD BECOME
FINAL.  HE STATED, HOWEVER, THAT HE WOULD NOT DISCLOSE THE MEMORANDA IN
OPEN CASES; AND HE WOULD IN ANY EVENT, DELETE NAMES OF WITNESSES AND
"SECURITY SENSETIVE" MATTER FROM THE MEMORANDA HE DID DISCLOSE; AND
THAT HE DID NOT CONSIDER THE GENERAL COUNSEL'S OFFICE BOUND TO PURSUE
THIS NEW POLICY "IN ALL INSTANCES" IN THE FUTURE.     NOT WHOLLY
SATISFIED WITH THE VOLUNTARY DISCLOSURES OFFERED AND MADE BY THE
GENERAL COUNSEL, SEARS MOVED OFR SUMMARY JUDGMENT AND THE GENERAL
COUNSEL DID LIKEWISE.  SEARS THUS CONTINUED TO SEEK MEMORANDA IN OPEN
CASES.  MOREOVER, SEARS OBJECTED TO THE DELETIONS IN THE MEMORANDA IN
CLOSED CASES AND ASSERTED THAT MANY APPEALS MEMORANDA WERE
UNINTELLIGIBLE BECAUSE THEY INCORPORATED BY REFERENCE DOCUMENTS WHICH
WERE NOT THEMSELVES DISCLOSED AND ALSO REFERRED TO "THE CIRCUMSTANCES
OF THE CASE'" WHICH WERE NOT SET OUT AND ABOUT WHICH SEARS WAS
IGNORANT.  THE GENERAL COUNSEL CONTENDED THAT ALL OF THE DOCUMENTS WERE
EXEMPT FROM DISCLOSURE AS "INTRA-AGENCY" MEMORANDA WITHIN THE COVERAGE
OF 5 U.S.C. SEC. 552(B)(5); AND THAT THE DOCUMENTS INCORPORATED BY
REFERENCE WERE EXEMPT FROM DISCLOSURE AS "INVESTIGATORY FILES" PURSUANT
TO 5 U.S.C. SEC 552(B)(7)).  THE PARTIES ALSO DID NOT AGREE AS TO THE
FUNCTION OF AN ADVICE MEMORANDUM.  SEARS CLAIMED THAT ADVICE MEMORANDA
ARE BINDING ON REGIONAL DIRECTORS.  THE GENERAL COUNSEL CLAIMED THAT
THEY ARE NOT, NOTING THE FACT THAT THE REGIONAL DIRECTOR HIMSELF HAS
THE DELEGATED POWER TO ISSUE A COMPLAINT. 

THE DISTRICT COURT GRANTED SEARS' MOTION FOR SUMMARY JUDGMENT AND
DENIED THAT OF THE GENERAL COUNSEL.  THE COURT FOUND THAT, ALTHOUGH THE
GENERAL COUNSEL HAD DELETATED TO THE REGIONAL DIRECTORS THE POWER TO
FILE COMPLAINTS, AN ADVICE MEMORANDUM CONSTITUTED A PRO TANTO
WITHDRAWAL OF THE DELEGATION OF THAT POWER.  ACCORDINGLY, ADVICE
MEMORANDA WERE HELD TO CONSTITUTE "INSTRUCTIONS TO STAFF THAT AFFECT A
MEMBER OF THE PUBLIC," WHICH ARE EXPRESSLY DISCLOSABLE PURSUANT TO 5
U.S.C. SEC. 552 (A)(2)(C).  APPEALS MEMORANDA WERE HELD TO BE "FINAL
OPINIONS."  BOTH WERE HELD NOT TO BE "INTRA-AGENCY MEMORANDUMS"
PROTECTED BY 5 U.S.C. SEC. 552(B)(5), SINCE THEY WERE NOT EXPRESSIONS
"OF A POINT OF VIEW" BUT THE "DISPOSITION OF A CHARGE."  DOCUMENTS
INCORPORATED BY REFERENCE IN THE MEMORANDA WERE HELD TO HAVE LOST
WHATEVER EXEMPT STATUS THEY HAD PREVIOUSLY.  SEE AMERICAN MAIL LINE,
LTD. V. GULICK, 133 U.S. APP. D.C. 382, 389, 411 F.2D 696, 703 (1969). 
THE COURT THEN CONCLUDED THAT THE CASE WAS A PROPER ONE FOR EXERCISE OF
ITS INJUNCTIVE POWERS UNDER THE ACT, EVEN THOUGH THE GENERAL COUNSEL
HAD VOLUNTARILY DISCLOSED SOME OF THE MATERIAL SOUGHT.  THE COURT NOTED
THAT IT HAD JURISDICTION TO ENJOIN THE WITHHOLDING OF DOCUMENTS
PROSPECTIVELY, IN ADDITION TO ORDERING THE PRODUCTION OF DOCUMENTS
ALREADY WITHHELD.  IT REFERRED TO THE FACT THAT THE GENERAL COUNSEL'S
OFFICE HAD A LONGSTANDING POLICY OF NONDISCLOSURE AND THAT IT STILL
MAINTAINED THAT THE POLICY WAS LAWFUL AND THAT THE CURRENT ONE OF
PARTIAL DISCLOSURE COULD BE CHANGED, AND IT REFERRED TO THE FACT THAT
DISPUTES HAD ARISEN ABOUT THE DELETIONS IN THE DOCUMENTS WHICH HAD BEEN
DISCLOSED VOLUNTARILY.  ACCORDINGLY, THE COURT OFDERED THAT THE GENERAL
COUNSEL (1) MAKE AVAILABLE TO THE PUBLIC ALL APPEALS AND ADVICE
MEMORANDA ISSUED SINCE JULY 4, 1967, /12/ AND ANY DOCUMENT EXPRESSLY
INCORPORATED BY REFERENCE (WITHOUT APPARENTLY LIMITING THE ORDER TO
MEMORANDA ON THE SUBJECT MATTER REQUESTED BY SEARS); /13/ (2) PRODUCE,
AND COMPILE IF NECESSARY, INDICES OF THE MEMORANDA; (3) PRODUCE
EXPLANATORY MATERIAL, INCLUDING EXISTING DOCUMENTS, IN THOSE INSTANCES
IN WHICH A MEMORANDUM REFERS TO THE "CIRCUMSTANCES OF THE CASE"; AND
(4) CEASE DELETING NAMES, CITATIONS, OR MATTER OTHER THAN SETTLEMENT
SUGGESTIONS, FROM THE MEMORANDA WITHOUT WRITTEN JUSTIFICATION.  /14/
THIS DECISION WAS AFFIRMED WITHOUT OPINION BY THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT ON THE BASIS OF ITS DECISION IN
GRUMMAN AIRCRAFT ENGINEERING CORP. V. RENEGOTIATION BOARD, 157 U.S.
APP. D.C. 121, 482 F.2D 710 (1973), AND WE GRANTED CERTIORARI, 417 U.S.
907 (1974), IN BOTH CASES AND SET THEM FOR ARGUMENT TOGETHER TO
CONSIDER THE IMPORTANT QUESTIONS OF THE CONSTRUCTION OF THE ACT AS THEY
RELATE TO DOCUMENTS GENERATED BY AGENCY DECISION-MAKING PROCESSES. 

     III 

IT IS CLEAR, AND THE GENERAL COUNSEL CONCEDES, THAT APPEALS AND
ADVICE MEMORANDA AR AT THE LEAST "IDENTIFIABLE RECORDS" WHICH MUST BE
DISCLOSED ON DEMAND, UNLESS THEY FALL WITHIN ONE OF THE ACT'S EXEMPT
CATEGORIES.  /15/ IT IS ALSO CLEAR THAT, IF THE MEMORANDA DO FALL
WITHIN ONE OF THE ACT'S EXEMPT CATEGORIES, OUR INQUIRY IS AT AN END,
FOR THE ACT "DOES NOT APPLY" TO SUCH DOCUMENTS.  THUS OUR INQUIRY,
STRICTLY SPEAKING, MUST BE INTO THE SCOPE OF THE EXEMPTIONS WHICH THE
GENERAL COUNSEL CLAIMS TO BE APPLICABLE--, PRINCIPALLY EXEMPTION 5
RELATING TO "INTRA-AGENCY MEMORANDUMS."  THE GENERAL COUNSEL ALSO
CONCEDES, HOWEVER, AND WE HOLD FOR THE REASONS SET FORTH BELOW, THAT
EXEMPTION 5 DOES NOT APPLY TO ANY DOCUMENT WHICH FALLS WITHIN THE
MEANING OF THE PHRASE "FINAL OPINION . . . MADE IN THE ADJUDICATION OF
CASES."  5 U.S.C. SEC. 552(A)(2)(A).  THE GENERAL COUNSEL ARGUES,
THEREFORE, AS HE MUST, THAT NO ADVICE OR APPEALS MMORANDUM IS A FINAL
OPINION MADE IN THE ADJUDICATION OF A CASE AND THAT ALL ARE "INTRA
AGENCY" MEMORANDA WITHIN THE COVERAGE OF EXEMPTION 5.  HE BASES THIS
ARGUMENT IN LARGE MEASURE ON WHAT HE CLAIMS TO BE HIS LACK OF
ADJUDICATIVE AUTHORITY.  IT IS TRUE THAT THE GENERAL COUNSEL LACKS ANY
AUTHORITY FINALLY TO ADJUDICATE AN UNFAIR LABOR PRACTICE CLAIM IN FAVOR
OF THE CLAIMANT; BUT HE DOES POSSESS THE AUTHORITY TO ADJUDICATE SUCH A
CLAIM AGAINST THE CLAIMANT THROUGH HIS POWER TO DECLINE TO FILE A
COMPLAINT WITH THE BOARD.  WE HOLD FOR REASONS MORE FULLY SET FORTH
BELOW THAT THOSE ADVICE AND APPEALS MEMORANDA WHICH EXPLAIN DECISIONS
BY THE GENERAL COUNSEL NOT TO FILE A COMPLAINT ARE "FINAL OPINIONS"
MADE IN THE ADJUCICATION OF A CASE AND FALL OUTSIDE THE SCOPE OF
EXEMPTION 5; BUT THAT THOSE ADVICE AND APPEALS MEMORANDA WHICH EXPLAIN
DECISIONS BY THE GENERAL COUNSEL TO FILE A COMPLAINT AND COMMENCE
LITIGATION BEFORE THE BOARD ARE NOT "FINAL OPINIONS" MADE IN THE
ADJUDICATION OF A CASE AND DO FALL WITHIN THE SCOPE OF EXEMPTION 5. 

        A 

THE PARTIES ARE IN APPARENT AGREEMENT THAT EXEMPTION 5 WITHHOLDS
FROM A MEMBER OF THE PUBLIC DOCUMENTS WHICH A PRIVATE PARTY COULD NOT
DISCOVER IN LITIGATION WITH THE AGENCY.  EPA V. MINK, 410 U.S., AT 85 -
86.  SINCE VIRTUALLY ANY DOCUMENT NOT PRIVILEGED MAY BE DISCOVERED BY
THE APPROPRIATE LITIGANT, IF IT IS RELEVANT TO HIS LITIGATION, AND
SINCE THE ACT CLEARLY INTENDED TO GIVE ANY MEMBER OF THE PUBLIC AS MUCH
RIGHT TO DISCLOSURE AS ONE WITH A SPECIAL INTEREST THEREIN, ID., AT 79,
92; STERLING DRUG, INC. V. FTC, 146 U.S. APP. D.C. 237, 243, 244, 450
F.2D 698, 704, 705 (1971); S. REP. NO. 813, P. 5; H. R. REP. NO. 1497,
P. 1, IT IS REASONABLE TO CONSTRUE EXEMPTION 5 TO EXEMPT THOSE
DOCUMENTS, AND ONLY THOSE DOCUMENTS, NORMALLY PRIVILEGED IN THE CIVIL
DISCOVERY CONTEXT.  /16/  THE PRIVILIGES CLAIMED BY PETITIONERS TO BE
RELEVANT TO THIS CASE ARE (1) THE "GENERALLY . . . RECOGNIZED"
PRIVILEGE FOR "CONFIDENTIAL INTRA-AGENCY ADVISORY OPINIONS . . .,"
KAISER ALUMINUM & CHEMICAL CORP. V. UNITED STATES, 141 CT. CL. 38, 49,
157 F. SUPP. 939, 946 (1958), REED, J., DISCLOSURE OF WHICH "WOULD BE
"INJURIOUS TO THE CONSULATIVE FUNCTIONS OF GOVERNMENT . . .'  KAISER
ALUMINUM & CHEMICAL CORP., SUPRA, AT 49, 157 F. SUPP., AT 946," EPA V.
MINK, SUPRA, AT 86 - 87 (SOMETIMES REFERRED TO AS "EXECUTIVE
PRIVILEGE"), AND (II) THE ATTORNEY-CLIENT AND ATTORNEY WORK-PRODUCT
PRIVILEGES GENERALLY AVAILABLE TO ALL LITIGANTS. 

        (I) 

THAT CONGRESS HAD THE GOVERNMENT'S EXECUTIVE PRIVILEGE SPECIFICALLY
IN MIND IN ADOPTING EXEMPTION 5 IS CLEAR, S. REP. NO. 813, P. 9; H.R.
REP. NO. 1497, P. 10; EPA V. MINK, SUPRA, AT 86.  THE PRECISE CONTOURS
OF THE PRIVILEGE IN THE CONTEXT OF THIS CASE ARE LESS CLEAR, BUT MAY BE
GLEANED FROM EXPRESSIONS OF LEGISLATIVE PURPOSE AND THE PRIOR CASE
LAW.  THE CASES UNIFORMLY REST THE PRIVILEGE ON THE POLICY OF
PROTECTING THE "DECISION MAKING PROCESSES OF GOVERNMENT AGENCIES"
TENNESSEAN NEWSPAPERS, INC. V. FHA, 464 F.2D 657, 660 (CA6 1972); CARL
ZEIZS STIFTUNG V. V.E.B. CARL ZEISS, JENA, 40 F.R.D. 318 (DC 1966), SEE
ALSO FPC V. MINK, SUPRA, AT 86 - 87; INTERNATIONAL PAPER CO. V. FPC,
438 F.2D 1349, 1358 - 1359 (CA 2 1971); KAISER ALUMINUM & CHEMICAL
CORP. V. UNITED STATES, SUPRA, AT 49, 157 F. SUPP., AT 946; AND FOCUS
ON DOCUMENTS "REFLECTING ADVISORY OPINIONS, RECOMMENDATIONS AND
DELIBERATIONS COMPRISING PART OF A PROCESS BY WHICH GOVERNMENTAL
DECISIONS AND POLICIES ARE FORMULATED."  CARL ZEISS STIFTUNG V. V.E.B.
CARL ZEISS, JENA, SUPRA, AT 324.  THE POINT, PLAINLY MADE IN THE SENATE
REPORT, IS THAT THE "FRANK DISCUSSION OF LEGAL OR POLICY MATTERS" IN
WRITING MIGHT BE INHIBITED IF THE DISCUSSION WERE MADE PUBLIC; AND THAT
THE "DECISIONS" AND "POLICIES FORMULATED" WOULD BE THE POORER AS A
RESULT.  S. REP. NO. 813, P. 9.  SEE ALSO H.R. REP. NO. 1497, P. 10;
EPA V. MINK, SUPRA, AT 87.  AS LOWER COURTS HAVE POINTED OUT, "THERE
ARE ENOUGH INCENTIVES AS IT IS FOR PLAYING IT SAFE AND LISTING WITH THE
WIND," ACKERLY V. LEY, 137 U.S. APP. D.C. 133, 138, 420 F.2D 1336, 1341
(1969), AND AS WE HAVE SAID IN AN ANALOGOUS CONTEXT, "(HUMAN EXPERIENCE
TEACHES THAT THOSE WHO EXPECT PUBLIC DISSEMINATION OF THEIR REMARKS MAY
WELL TEMPER CANDOR WITH A CONCERN FOR APPEARANCES . . . TO THE
DETRIMENT OF THE DECISIONMAKING PROCESS.  UNITED STATES V. NIXON, 418
U.S. 683, 705 (1974).  (EMPHASIS ADDED).  /17/ MANIFESTLY, THE ULTIMATE
PURPOSE OF THIS LONG-RECOGNIZED PRIVILEGE IS TO PREVENT INJURY TO THE
QUALITY OF AGENCY DECISIONS.  THE QUALITY OF A PARTICULAR AGENCY
DECISION WILL CLEARLY BE AFFECTED BY THE COMMUNICATIONS RECEIVED BY THE
DECISIONMAKER ON THE SUBJECT OF THE DECISION PRIOR TO THE TIME THE
DECISION IS MADE.  HOWEVER, IT IS DIFFICULT TO SEE HOW THE QUALITY OF A
DECISION OCCURRING AFTER THE DECISION IS FINALLY REACHEDF AND THEREFORE
EQUALLY DIFFICULT TO SEE HOW THE QUALITY OF THE DECISION WILL BE
AFFECTED BY FORCED DISCLOSURE OF SUCH COMMUNICATIONS, AS LONG AS PRIOR
COMMUNICATIONS AND THE INGREDIENTS OF THE DECISIONMAKING PROCESS ARE
NOT DISCLOSED.  ACCORDINGLY, THE LOWER COURTS HAVE UNIFORMLY DRAWN A
DISTINCTION BETWEEN PREDECISIONAL COMMUNICATIONS, WHICH ARE PRIVILEGED,
/18/ E.G., BOEING AIRPLANE CO. V. COGGESHALL, 108 U.S. APP. D.C. 106,
280 F.2D 654 (1960); O' KEEFE V. BOEING CO., 38 F.R.D. 329 (SDNY 1965);
WALLED LAKE DOOR CO. V. UNITED STATES, 31 F.R.D. 258 (ED MICH. 1962);
ZACHER V. UNITED STATES, 227 F.2D 219, 226 (CA8 1955), CERT. DENIED,
350 U.S. 993 (1956); CLARK V. PEARSON, 238 F. SUPP. 495, 496 (DC 1965);
AND COMMUNICATIONS MADE AFTER THE DECISION AND DESIGNED TO EXPLAIN IT,
WHICH ARE NOT.  /19/  STERLING DRUG, INC. V. FTC, 146 U.S. APP. D.C.
237, 450 F.2D 698 (1971); GSA V. BENSON, 415 F.2D 878, 881 (C.A.9
1969); BANNERCRAFT CLOTHING CO. V. RENEGOTIATION BOARD, 151 U.S. APP.
D.C. 174, 466 F.2D 345 (1972); TENNESSEAN NEWSPAPERS, INC. V. FHA,
SUPRA.  SEE ALSO S. REP. NO. 1219, 88TH CONG., 2D SESS. 7 AND 11.  /20/
THIS DISTINCTION IS SUPPORTED NOT ONLY BY THE LESSER INJURY TO THE
DECISIONMAKING PROCESS FLOWING FROM DISCLOSURE OF POSTDECISIONAL
COMMUNICATIONS, ALSO, IN THE CASE OF THOSE COMMUNICATIONS WHICH EXPLAIN
THE DECISION, BY THE INCREASED PUBLIC INTEREST IN KNOWING THE BASIS FOR
AGENCY POLICY ALREADY ADOPTED.  THE PUBLIC IS ONLY MARGINALLY CONCERNED
WITH REASONS SUPPORTING A POLICY WHICH AN AGENCY HAS REJECTED, OR WITH
REASONS WHICH MIGHT HAVE SUPPLIED, BUT DID NOT SUPPLY, THE BASIS FOR A
POLICY WHICH WAS ACTUALLY ADOPTED ON A DIFFERENT GRAOND.  IN CONTRAST,
THE PUBLIC IS VITALLY CONCERNED WITH THE REASONS WHICH DID SUPPLY THE
BASIS FOR AN AGENCY POLICY ACTUALLY ADOPTED.  THESE REASONS, IF
EXPRESSED WITHIN THE AGENCY, CONSTITUTE THE "WORKING LAW" OF THE AGENCY
AND HAVE BEEN HELD BY THE LOWER COURTS TO BE OUTSIDE THE PROTECTION OF
EXEMPTION 5.  BANNERCROFT CLOTHING CO. V. RENEGOTIATION BOARD, SPURA,
AT 181, 466 F.2D, AT 352; CUENO V. SCHLESINGER, 157 U.S. APP. D.C. 368,
484 F.2D 1086 (1973), CERT. DENIED SUB NOM.  ROSEN V. VAUGHN, 415 U.S.
977 (1974); ASH GROVE CEMENT CO. V. FTC, 371 F. SUPP. 370 (1973, AFF'D
IN PART AND REV'D IN PART, __ U.S. APP. D.C. __, __ F.2D__ (1975). 
EXEMPTION 5, PROPERLY CONSTRUED, CALLS FOR "DISCLOSURE OF ALL 'OPINIONS
AND INTERPRETATIONS' WHICH EMBODY THE AGENCY'S EFFECTIVE LAW AND
POLICY, AND THE WITHHOLDING OF ALL PAPERS WHICH REFLECT THE AGENCY'S
GROUP THINKING IN THE PROCESS OF WORKING OUT ITS POLICY AND DETERMINING
WHAT ITS LAW SHALL BE."  DAVIS, THE INFORMATION ACT:  A PRELIMINARY
ANALYSIS, 34 U. CHI.  L. REV. 761, 797 (1967); NOTE, FREEDON OF
INFORMATION ACT AND THE EXEMPTION FOR INTRA-AGENCY MEMORANDA, 86 HARV.
L. REV. 1047 (1973). 

THIS CONCLUSION IS POWERFULLY SUPPORTED BY THE OTHER PROVISIONS OF
THE ACT.  THE AFFIRMATIVE PORTION OF THE ACT, EXPRESSLY REQUIRING
INDEXING OF "FINAL OPINIONS," "STATEMENTS OF POLICY AND INTERPRETATIONS
WHICH HAVE BEEN ADOPTED BY THE AGENCY," AND "INSTRUCTIONS TO STAFF THAT
AFFECT A MEMBER OF THE PUBLIC," 5 U.S.C. SEC. 552(A) (2), REPRESENTS A
STRONG CONGRESSIONAL AVERSION TO "SECRET (AGENCY) LAW," DAVIS, SUPRA,
AT 797; AND REPRESENTS AN AFFIRMATIVE CONGRESSIONAL PURPOSE TO REGUIRE
DISCLOSURE OF DOCUMENTS WHICH HAVE "THE FORCE AND EFFECT OF LAW."  H.
R. REP. NO. 1497, P. 7.  WE SHOULD BE RELUCTANT, THEREFORE, TO CONSTRUE
EXEMPTION 5 TO APPLY TO THE DOCUMENTS DESCRIBED IN 5 U.S.C. SEC.
552(A)(2); AND WITH RESPECT AT LEAST TO "FINAL OPINIONS,"  WHICH NOT
ONLY INVARIABLY EXPLAIN AGENCY ACTION ALREADY TAKEN OR AN AGENCY
DECISION ALREADY MADE, BUT ALSO CONSTITUTE "FINAL DISPOSITIONS" OF
MATTERS BY AN AGENCY, SEE INFRA, AT 158 - 159, WE HOLD THAT EXEMPTION 5
CAN NEVER APPLY.  /21/             (II) 

IT IS EQUALLY CLEAR THAT CONGRESS HAD THE ATTORNEY'S WORK-PRODUCT
PRIVILEGE SPECIFICALLY IN MIND WHEN IT ADOPTED EXEMPTION 5 AND THAT
SUCH A PRIVILEGE HAD BEEN RECOGNIZED IN THE CIVIL DISCOVERY CONTEXT BY
THE PRIOR CASE LAW.  THE SENATE REPORT STATES THAT EXEMPTION 5 "WOULD
INCLUDE THE WORKING PAPERS OF THE AGENCY ATTORNEY AND DOCUMENTS WHICH
WOULD COME WITHIN THE ATTORNEY-CLIENT PRIVILEGE IF APPLIED TO PRIVATE
PARTIES," S. REP. NO. 813, P. 2; AND THE CASE LAW CLEARLY MAKES THE
ATTORNEY'S WORK-PRODUCT RULE OF HICKMAN V. TAYLOR, 329 U.S. 495 (1974),
APPLICABLE TO GOVERNMENT ATTORNEYS IN LITIGATION.  KAISER ALUMINUM &
CHEMICAL CORP. V. UNITED STATES, 141 CT. CL., AT 50, 157 F. SUPP, AT
947; UNITED STATES V. ANDERSON, 34 F.R.D. 518 (COLO. 1963); THILL
SECURITIES CORP. V. NEW YORK STOCK EXCHANGE, 57 F.R.D. 133 (ED WIS.
1972); J.H. RUTTER REX MFG. CO., INC. V. NLRB, 473 F.2D 223 (CA 5),
CERT. DENIED, 414 U.S. 822 (1973).  WHATEVER THE OUTER BOUNDARIES OF
THE ATTORNEY'S WORK-PRODUCT RULE ARE, THE RULE CLEARLY APPLIES TO
MEMORANDA PREPARED BY AN ATTORNEY IN COMTEMPLATION OF LITIGATION WHICH
SET FORTH THE ATTORNEY'S THEORY OF THE CASE AND HIS LITIGATION
STRATEGY.  IN RE NATTA, 410 F.2D 187 (CA 3), CERT. DENIED SUB NOM.
MONTECATINI EDISON V. E.I. DU PONT DE NEMOURS & CO., 396 U.S. 836
(1969); STATE EX REL. DUDEK V. CIRCUIT COURT FOR MILWAUKEE COUNTY, 34
WIS. 2D 559, 150 N.W. 2D 387 (1967); HICKMAN V. TAYLOR, SUPRA, AT 510 -
511. 

        B 

APPLYING THESE PRINCIPLES TO THE MEMORANDA SOUGHT BY SEARS, IT
BECOMES CLEAR THAT EXEMPTION 5 DOES NOT APPLY TO THOSE APPEALS AND
ADVICE MEMORANDA WHICH CONCLUDE THAT NO COMPLAINT SHOULD BE FILED AND
WHICH HAVE THE EFFECT OF FINALLY DENYING RELIEF TO THE CHARGING PARTY;
BUT THAT EXEMPTION 5 DOES PROTECT FROM DISCLOSURE THOSE APPEALS AND
ADVICE MEMORANDA WHICH DIRECT THE FILING OF A COMPLAINT AND THE
COMMENCEMENT OF LITIGATION BEFORE THE BOARD. 

        (I) 

UNDER THE PROCEDURES EMPLOYED BY THE GENERAL COUNSEL, ADVICE AND
APPEALS MEMORANDA ARE COMMUNICATED TO THE REGIONAL DIRECTOR AFTER THE
GENERAL COUNSEL, THROUGH HIS ADVICE AND APPEALS BRANCYES, HAS DECIDED
WHETHER OR NOT TO ISSUE A COMPLAINT; AND REPRESENT AN EXPLANATION TO
THE REGIONAL DIRECTOR OF A LEGAL OR POLICY DECISION ALREADY ADOPTED BY
THE GENERAL COUNSEL.  IN THE CASE OF DECISIONS NOT TO FILE A COMPLAINT,
THE MEMORANDA EFFECT AS "FINAL" A "DISPOSITION," SEE DISCUSSION, INFRA,
AT 158 - 159, AS AN ADMINISTRATIVE DECISION CAN--REPRESENTING, AS IT
DOES, AN UNREVIEWABLE REJECTION OF THE CHARGE FILED BY THE PRIVATE
PARTY.  VACA V. SIPES, 386 U.S. 171 (1967).  DISCLOSURE OF THESE
MEMORANDA WOULD NOT INTRUDE ON PREDECISIONAL PROCESSES, AND PROTECTING
THEM WOULD NOT IMPROVE THE QUALITY OF AGENCY DECISIONS, SINCE WHEN THE
MEMORANDA ARE COMMUNICATED TO THE REGIONAL DIRECTOR, THE GENERAL
COUNSEL HAS ALREADY REACHED HIS DECISION AND THE REGIONAL DIRECTOR WHO
RECEIVES THEM HAS NO DECISION TO MAKE--HE IS BOUND TO DISMISS THE
CHARGE.  MOREOVER, THE GENERAL COUNSEL'S DECISIONS NOT TO FILE
COMPLAINTS TOGETHER WITH THE ADVICE AND APPEALS MEMORANDA EXPLAINING
THEM, ARE PRECISELY THE KIND OF AGENCY LAW IN WHICH THE PUBLIC IS SO
VITALLY INTERESTED AND WHICH CONGRESS SOUGHT TO PREVENT THE AGENCY FROM
KEEPING SECRET.  /22/  THE COMMITTEE ON PARCTICE AND PROCEDURE OF THE
AMERICAN BAR ASSOCIATION'S SECTION OF LABOR RELATIONS LAW (ABA
COMMITTEE) HAS SAID IN ITS 1970 REPORT: 

" WHERE THE ADVICE BRANCH DIRECTS THE REGIONAL DIRECTOR TO ISSUE A
COMPLAINT, OR WHERE A REGIONAL DIRECTOR'S DISMISSAL IS REVERSED ON
APPEAL AND A COMPLAINT IS SUBSEQUENTLY ISSUED, THE SUBJECT MATTER,
THEORY, AND INTERPRETATION WILL ULTIMATELY BE VENTILATED THROUGH THE
COURSE OF HEARING, TRIAL EXAMINER AND BOARD DECISIONS, AND PERHAPS
REVIEW AND ADJUDICATION IN THE COURT.  IT IS IN ALL THE REMAINING
CASES, HOWEVER, WHERE THE GENERAL COUNSEL EITHER THROUGH THE ADVICE
BRANCH OR THROUGH THE OFFICE OF APPEALS DETERMINES THAT ISSUANCE OF
COMPLAINT IS NOT WARRANTED, AND THAT SUCH DETERMINATION CONSTITUTES
FINAL AGENCY ACTION OF PRECEDENTIAL IMPORT.  . . . YOUR COMMITTEE
BELEIVES THAT THESE 'PRECEDENTS' CONSTITUTE PRECISELY THE KINDS OF
'FINAL OPINIONS, STATEMENTS OF POLICY AND INTERPRETATIONS' AND
'INSTRUCTIONS TO STAFF THAT AFFECT A MEMBER OF THE PUBLIC,' WHICH THE
FREEDOM OF INFORMATION ACT COMTEMPLATES SHOULD BE INDEXED AND MADE
AVAILABLE TO THE PUBLIC."  2 ABA LABOR RELATIONS LAW SECTION, P. 7
(1970). 

THE GENERAL COUNSEL CONTENDS, HOWEVER, THAT THE APPEALS MEMORANDA
REPRESENT ONLY THE FIRST STEP IN LITIGATION AND ARE NOT FINAL; AND THAT
ADVICE MEMORANDA ARE ADVISORY ONLY AND NOT BINDING ON THE REGIONAL
DIRECTOR, WHO HAS THE DISCRETION TO FILE OR NOT TO FILE A COMPLAINT. 
THE CONTENTIONS ARE WITHOUT MERIT.  PLAINLY, AN APPEALS MEMORANDUM IS
THE FIRST STEP IN LITIGATION ONLY WHEN THE APPEAL IS SUSTAINED AND IT
DIRECTS THE FILING OF A COMPLAINT; /23/ AND THE GENERAL COUNSEL'S
CURRENT CHARACTERIZATION OF AN ADVICE MEMORANDUM IS AT ODDS WITH HIS
OWN DESCRIPTION OF THE FUNCTION OF AN ADVICE MEMORANDUM IN HIS
STATEMENT TO THE HOUSE COMMITTEE.  THAT STATEMENT SAYS THAT THE ADVICE
BRANCH ESTABLISHES "UNIFORM POLICIES" IN THOSE LEGAL AREAS WITH RESPECT
TO WHICH REGIONAL DIRECTORS ARE "REQUIRED" TO SEEK ADVICE UNTIL A
"DEFINITIVE POLICY IS ARRIVED AT.  THIS IS SO BECAUSE IF REGIONAL
DIRECTORS WERE "FREE" TO INTERPRET LEGAL ISSUES "THE LAW COULD, AS A
PRACTICAL MATTER AND BEFORE BOARD DECISION OF THE ISSUE, BE ONE THING
IN ONE REGION AND CONFLICTING IN OTHERS."  STATEMENT 3075, 3076, 3077. 
(EMPHASIS ADDED.)  THEREFORE, THE ADVICE MEMORANDUM IS CREATED AFTER
CONSIDERATION OF "PRIOR ADVICE DETERMINATINS IN SIMILAR OR RELATED
CASES" AND CONTAINS "INSTRUCTIONS FOR THE FINAL PROCESSING OF THE
CASE.  ID., AT 3076.  IN LIGHT OF THIS DESCRIPTION, WE CANNOT FAULT THE
DISTRICT COURT FOR CONCLUDING THAT THE ADVICE MEMORANDUM ACHIEVES A PRO
TANTO WITHDRAWAL FROM THE REGIONAL DIRECTOR OF HIS DISCRETION TO FILE
OR NOT TO FILE A COMPLAINT.  NOR CAN WE AVOID THE CONCLUSION THAT
ADVICE MEMORANDA DIRECTING DISMISSAL OF A CHARGE REPRESENT THE "LAW" OF
THE AGENCY.  ACCORDINGLY, ADVICE AND APPEALS MEMORANDA DIRECTING THAT A
CHARGE BE DISMISSED FALL OUTSIDE OF EXEMPTION 5 AND MUST BE DISCLOSED. 
/24/ 

FOR ESSENTIALLY THE SAME REASONS, THESE MEMORANDA ARE "FINAL
OPINIONS" MADE IN THE "ADJUDICATION OF CASES" WHICH MUST BE INDEXED
PURSUANT TO 5 U.S.C. SEC. 552 (A)(2)(A).  THE DECISION TO DISMISS A
CHARGE IS A DECISION IN A "CASE" AND CONSTITUTES AN "ADJUDICATION":
AND "ADJUDICATION" IS DEFINED UNDER THE ADMINISTRATIVE PROCEDURE ACT,
OF WHICH 5 U.S.C. SEC. 552 IS A PART, AS "AGENCY PROCESS FOR THE
FORMULATION OF AN ORDER," 5 U.S.C. SEC. 551 (7); AN "ORDER" IS DEFINED
AS "THE WHOLE OR A PART OF A FINAL DISPOSITION, WHETHER ARRIRMATIVE
(OR) NEGATIVE.  . . OF AN AGENCY IN A MATTER . . .," 5 U.S.C. SEC. 55
(6) (EMPHASIS ADDED); AND THE DISMISSAL OF A CHARGE, AS NOTED ABOVE, IS
A "FINAL DISPOSITION."  /25/ SINCE AN ADVICE OR APPEALS MEMORANDUM
EXPLAINS THE REASONS FOR THE "FINAL DISPOSITION" IT PLAINLY QUALIFIES
AS AN "OPINION"; AND FALLS WITHIN 5 U.S.C. SEC. 552(A)(2)(A).  THIS
CONCLUSION IS CONSISTENT WITH OUR RECENT HOLDING IN ITT V. ELECTRICAL
WORKERS, 419 U.S. 428 (1975), THAT BOARD DECISIONS IN PROCEEDINGS UNDER
29 U.S.C. SEC. 160 (K) (SEC. 10 (K) PROCEEDINGS) ARE NOT "FINAL
DISPOSITIONS."  THE DECISION IN THE PROCEEDING IN THAT CASE DID NOT
FINALLY DECIDE ANYTHING AND IS MORE ANALOGOUS TO A DECISION BY THE
GENERAL COUNSEL THAT AN UNFAIR LABOR PRACTICE SHOULD BE FILED.  SE
INFRA, THIS PAGE AND 160. 

        (II) 

ADVICE AND APPEALS MEMORANDA WHICH DIRECT THE FILING OF A COMPLAINT,
ON THE OTHER HAND, FALL WITHIN THE COVERAGE OF EXEMPTION 5.  THE FILING
OF A COMPLAINT DOES NOT FINALLY DISPOSE EVEN OF THE GENERAL COUNSEL'S
RESPONSIBILITY WITH RESPECT TO THE CASE.  THE CASE WILL BE LITIGATED
BEFORE AND DECIDED BY THE BOARD; AND THE GENERAL COUNSEL WILL HAVE THE
RESPONSIBILITY OF ADVOCATING THE POSITION OF THE CHARGING PARTY BEFORE
THE BOARD.  THE MEMORANDA WILL INEXORABLY CONTAIN THE GENERAL COUNSEL'S
THEORY OF THE CASE AND MAY COMMUNICATE TO THE REGIONAL DIRECTOR SOME
LITIGATION STRATECY OR SETTLEMENT ADVICE.  SINCE THE MEMORANDA WILL
ALSO HAVE BEEN PREPARED IN CONTEMPLATION OF THE UPCOMING LITIGATION,
THEY FALL SQUARELY WITHIN EXEMPTION 5'S PROCTCTION OF AN ATTORNEY'S
WORK PRODUCT.  AT THE SAME TIME, THE PUBLIC'S INTEREST IN DISCLOSURE IS
SUBSTANTIALLY REDUCED BY THE FACT, AS POINTED OUT BY THE ABA COMMITTEE,
SEE SUPRA, AT 156, THAT THE BASIS FOR THE GENERAL COUNSEL'S LEGAL
DECISION WILL COME OUT IN THE COURSE OF LITIGATION BEFORE THE BOARD;
ADN THAT THE "LAW" WITH RESPECT TO THESE CASES WILL ULTIMATELY BE MADE
NOT BY THE GENERAL COUNSEL BUT BY THE BOARD OF THE COURTS. 

WE RECOGNIZE THAT AN ADVICE OR APPEALS MEMORANDUM DIRECTING THE
FILING OF A COMPLAINT--ALTHOUGH REPRESENTING ONLY A DECISION THAT A
LEGAL ISSUE IS SUFFICIENTLY IN DOUBT TO WARRANT DETERMINATION BY
ANOTHER BODY--HAS MANY OF THE CHARACTERISTICS OF THE DOCUMENTS
DESCRIBED IN 5 U.S.C. SEC. 552(A)(2).  ALTHOUGH NOT A "FINAL OPINION"
IN THE "ADJUDICATION" OF A "CASE" BECAUSE IT DOES NOT EFFECT A "FINAL
DISPOSITION," THE MEMORANDUM DOES EXPLAIN A DECISION ALREADY REACHED BY
THE GENREAL COUNSEL WHICH HAS REAL OPERATIVE EFFECT--IT PERMITS
LITIGATION BEFORE THE BOARD; AND WE HAVE INDICATED A RELUCTANCE TO
CONSTRUE EXEMPTION 5 TO PROTECT SUCH DOCUMENTS.  SUPRA, AT 153.  WE DO
SO IN THIS CASE ONLY BECAUSE THE DECISIONMAKER--THE GENERAL COUNSEL--
MUST BECOME A LITIGATING PARTY TO THE CASE WITH RESPECT TO WHICH HE HAS
MADE HIS DECISION.  THE ATTORNEY'S WORK-PRODUCT POLICIES WHICH CONGRESS
CLEARLY INCORPORATED INTO EXEMPTION 5 THUS COME INTO PLAY AND LEAD US
TO HOLD THAT THE ADVICE AND APPEALS MEMORANDA DIRECTING THE FILING OF A
COMPLAINT ARE EXEMPT WHETHER OR NOT THEY ARE, AS THE DISTRECT COURT
HELD, "INSTRUCTIONS TO STAFF THAT AFFECT A MEMBER OF THE PUBLIC."  /26/

        C 

PETITIONERS ASSERT THAT THE DISTRICT COURT ERRED IN HOLDING THAT
DOCUMENTS INCORPORATED BY REFERENCE IN NONEXEMPT ADVICE AND APPEALS
MEMORANDA LOSE ANY EXEMPTION THEY MIGHT PREVIOUSLY HAVE HELD AS "INTRA
AGENCY" MEMORANDA.  /27/ WE DISAGREE. 

THE PROBABILITY THAT AN AGENCY EMPLOYEE WILL BE INHIBITED FROM
FREELY ADVISING A DECISIONMAKER FOR FEAR THAT HIS ADVICE, IF ADOPTED,
WILL BECOME PUBLIC IS SLIGHT.  FIRST, WHEN ADOPTED, THE REASONING
BECOMES THAT OF THE AGENCY AND BECOMES ITS RESPONSIBILITY TO DEFEND. 
SECOND, AGENCY EMPLOYEES WILL GENERALLY BE ENCOURAGED RATHER THATN
DISCOURAGED BY PUBLIC KNOWLEDGE THAT THEIR POLICY SUGGESTIONS HAVE BEEN
ADOPTED BY THE AGENCY.  MOREOVER, THE PUBLIC INTEREST IN KNOWING THE
REASONS FOR A POLICY ACTUALLY ADOPTED BY AN AGENCY SUPPORTS THE
DISTRICT COURT'S DECISION BELOW.  THUS, WE HOLD THAT, IF AN AGENCY
CHOOSES EXPRESSLY TO ADOPT OR INCORPORATE BY REFERENCE AN INTRA-AGENCY
MEMORANDUM PREVIOUSLY COVERED BY EXEMPTION 5 IN WHAT WOULD OTHERWISE BE
A FINAL OPINION, THAT MEMORANDUM MAY BE WITHHELD ONLY ON THE GROUND
THAT IT FALLS WITHIN THE COVERAGE OF SOME EXEMPTION OTHER THAN
EXEMPTION 5. 

PETITIONERS ALSO ASSERT THAT THE DISTRICT COURT'S ORDER ERRONEOUSLY
REQUIRES IT TO PRODUCE OR CREATE EXPLANATORY MATERIAL IN THOSE
INSTANCES IN WHICH AN APPEALS MEMORANDUM REFERS TO THE "CIRCUMSTANCES
OF THE CASE."  WE AGREE.  THE ACT DOES NOT COMPEL AGENCIES TO WRITE
OPINIONS IN CASES IN WHICH THEY WOULD NOT OTHERWISE BE REQUIRED TO DO
SO.  IT ONLY REQUIRES DISCLOSURE OF CERTAIN DOCUMENTS WHICH THE LAW
REQUIRES THE AGENCY TO PREPARE OR WHICH THE AGENCY HAS DECIDED FOR ITS
OWN REASONS TO CREATE.  STERLING DRUG, INC. V. FTC, 146 U.S. APP. D.C.
237, 450 F.2D 698 (1971).  THUS, INSOFAR AS THE ORDER OF THE COURT
BELOW REQUIRES THE AGENCY TO CREATE EXPLANATORY MATERIAL, IT IS
BASELESS.  NOR IS THE AGENCY REQUIRED TO IDENTIFY, AFTER THE FACT,
THOSE PRE-EXISTING DOCUMENTS WHICH CONTAIN THE "CIRCUMSTANCES OF THE
CASE" TO WHICH THE OPIOION MAY HAVE REFERRED, AND WHICH ARE NOT
IDENTIFIED BY THE PARTY SEEKING DISCLOSURE. 

        IV 

FINALLY, PETITIONERS ARGUES THAT THE ADVICE AND APPEALS MEMORANDA
ARE EXEMPT, PURSUANT TO 5 U.S.C. SEC. 552(B)(2) AND (7) (EXEMPTIONS 2
AND 7), AND THAT THE DOCUMENTS INCORPORATED THEREIN ARE PROTECTED BY
EXEMPTION 7.  WITH RESPECT TO THE ADVICE AND APPEALS MEMORANDA, WE
DECLINE TO REACH A DECISION ON THESE CLAIMS FOR THE REASONS SET FORTH
BELOW, AND WITH RESPECT TO THE DOCUMENTS INCORPORATED THEREIN, WE
REMAND FOR FURTHER PROCEEDINGS. 

A 

EXEMPTION 7 PROVIDED, AT THE TIME OF SEAR'S REQUEST FOR DOCUMENTS
AND AT THE TIME OF THE DECISIONS OF THE COURTS BELOW, THAT THE ACT DOES
NOT APPLY TO "INVESTIGATORY FILES COMPLIED FOR LAW ENFORCEMENT PURPOSES
EXCEPT TO THE EXTENT AVAILABLE BY LAW TO A PARTY OTHER THAN AN
AGENCY."  NOTING SUPPORT IN THE LEGISLATIVE HISTORY FOR THE PROPOSITION
THAT THIS EXEMPTION APPLIES TO THE CIVIL "ENFORCEMENT" OF THE LABOR
LAWS, H.R. REP. NO. 149(, P. 11, THE GENERAL COUNSEL ASSERTS THAT THE
"DOCUMENTATION UNDERLYING ADVICE AND APPEALS MEMORANDA ARE
'INVESTIGATORY FILES'" AND THAT HE "BELIEVES" THE MEMORANDA ARE
THEMSELVES SIMILARLY EXEMPT IN LIGHT OF THE "PURPOSES" /28/ OF
EXEMPTION 7.  THE GENERAL COUNSEL ALSO CITES SEVERAL LOWER COURT
DECISIONS /29/ FOR THE PROPOSITION THAT ONCE A CERTAIN TYPE OF DOCUMENT
IS DETERMINED TO FALL INTO THE CATEGORY OF "INVESTIGATORY FILES" THE
COURTS ARE NOT TO INQUIRE WHETHER THE DISCLOSURE OF THE PARTICULAR
DOCUMENT IN QUESTION WOULD CONTRAVENE ANY OF THE PURPOSES OF EXEMPTION
7.     TWO FACTORS COMBINE TO CONVINCE US THAT WE SHOULD NOT REACH THE
CLAIM THAT ADVICE AND APPEALS MEMORANDA ARE PROTECTED BY EXEMPTION 7. 
FIRST, THE GENERAL COUNSEL DID NOT MAKE THIS CLAIM IN THE DISTRICT
COURT; AND ALTHOUGH HE DID MAKE IT IN THE COURT OF APPEALS, THAT COURT
AFFIRMED WITHOUT OPINION ON THE BASIS OF ITS PRIOR DECISION IN ANOTHER
CASE NOT INVOLVING EXEMPTION 7, AND IT IS NOT CLEAR WHETHER THE COURT
OF APPEALS PASSED ON THE CLAIM.  THUS, NOT ONLY ARE WE UNENLIGHTENED ON
THE QUESTION WHETHER ADVICE AND APPEALS MEMORANDA, AS FACTUAL MATTER,
CONTAIN INFORMATION THE DISCLOSURE OF WHICH WOULD OFFEND THE PURPOSES
OF EXEMPTION 7, BUT WE ARE WITHOUT A LOWER COURT OPINION ON THE LEGAL
ISSUE.  UNDER SUCH CIRCUMSTANCES, WE NORMALLY DECLINE TO CONSIDER A
LEGAL CLAIM, RAMSEY V. MINE WORKERS & CO. 398 U.S. 302 (1971); ADICKES
V. S.H. KRESS & CO., 398 U.S. 144 (1970), AND WE ADHERE TO THAT POLICY
IN THIS CASE. 

SECOND, CONGRESS HAS AMENDED EXEMPTION 7 SINCE PETITIONERS FILED
THIER BRIEF IN THIS CASE.  IT NOW APPLIES TO 

     "(M) INVESTIGATORY RECORDS COMPLIED FOR LAW ENFORCEMENT

  PURPOSES, BUT ONLY TO THE EXTENT THT THE PRODUCTION OF SUCH

  RECORDS WOULD (A) INTERFERE WITH ENFORCEMENT PROCEEDINGS, (B)

  DEPRIVE A PERSON OF A RIGHT TO A FAIR TRAIL OR AN IMPARTIAL

  ADJUDICATION, (C) CONSTITUTE A UNWARRANTED INVASION OF PERSONAL

PRIVACY, (D) DISCLOSE THE IDENTITY OF A CONFIDENTIAL SOURCE AND,

  IN THE CASE OF A RECORD COMPILED BY A CRIMINAL LAW ENFORCEMENT

  AUTHORITY IN THE COURSE OF A CRIMINAL INVESTIGATION, OR BY AN

  AGENCY CONDUCTING A LAWFUL NATIONAL SECURITY INTELLIGENCE

  INVESTIGATION, CONFIDENTIAL INFORMATION FURNISHED ONLY BY THE

  CONFIDENTIAL SOURCE, (E) DISCLOSE INVESTIGATIVE TECHNIQUES AND

  PROCEDURES, OR (F) ENDANGER THE LIFE OR PHYSICAL SAFETY OF LAW

  ENFORCEMENT PERSONNEL."  PUB.  L. 93 - 502, 88 STAT. 1563. 

THE LEGISLATIVE HISTORY CLEARLY INDICATES THAT CONGRESS DISAPPROVES OF
THOSE CASES, RELIED ON BY THE GENERAL COUNSEL, SEE N. 29, SUPRA, WHICH
RELIEVE THE GOVERNMENT OF THE OBLIGATION TO SHOW THAT DISCLOSURE OF A
PARTICULAR INVESTIGATORY FILE WOULD CONTRAVENE THE PURPOSES OF
EXEMPTION 7.  S. CONF. REP. NO. 93 - 1200 (1974).  THE LANGUAGE OF THE
AMENDED EXEMPTION 7 AND THE LEGISLATIVE HISTORY UNDERLYING IT CLEARLY
REVEAL A CONGRESSIONAL INTENT TO LIMIT APPLICATION OF EXEMPTION 7 TO
AGENCY RECORDS SO THAT IT WOULD APPLY ONLY TO THE EXTENT THAT "THE
PRODUCTION OF SUCH RECORDS WOULD INTERFERE WITH ENFORCEMENT
PROCEEDINGS, DEPRIVE A PERSON OF A RIGHT TO A FAIR TRIAL OR AN
IMPARTIAL ADJUDICATION, CONSTITUTE (AN) . . . UNWARRANTED INVASION OF
PERSONAL PRIVACY, DISCLOSE THE IDENTITY OF AN INFORMER, OR DISCLOSE
INVESTIGATIVE TECHNIQUES AND PROCEDURES."  ID., AT 12. 

ANY DECISION OF THE EXEMPTION 7 ISSUE IN THIS CASE WOULD HAVE TO BE
UNDER THE ACT, AS AMENDED, FUSARI V. STEINBERG, 419 U.S. 379, 387
(1975), AND, APART FROM THE GENERAL COUNSEL'S FAILURE TO RAISE THE
ISSUE, THE LOWER COURTS HAVE HAD NO OPPORTUNITY TO PASS ON THE
APPLICABILITY OF THE ACT, AS AMENDED, TO ADVICE AND APPEALS MEMORANDA,
SINCE THE AMENDMENT OCCURRED AFTER THE DECISION BY THE COURT OF
APPEALS.  /30/

        B 

THE GENERAL COUNSEL'S CLAIM THAT ADVICE AND APPEALS MEMORANDA ARE
DOCUMENTS "RELATED SOLELY TO THE INTERNAL PERSONNEL RULES AND PRACTICES
OF AN AGENCY" AND THEREFORE PROTECTED BY EXEMPTION 2 WAS RAISED NEITHER
IN THE DISTRICT COURT NOR IN THE COURT OF APPEALS AND WE DECLINE TO
REACH IT FOR THE REASONS SET FORTH ABOVE. 

        C 

FINALLY, THE GENERAL COUNSEL CLAIMS THAT THE DOCUMENTS, INCORPORATED
BY REFERENCE IN ADVICE AND APPEALS MEMORANDA, WHICH WERE PREVIOUSLY
PROTECTED BY EXEMPTION D, SHOULD NOT LOSE THEIR EXEMPT STATUS BY REASON
OF INCORPORATION.  CONTRARY TO THE DISTRICT COURT, WE THINK THE
AGRUMENT IS SOUND.  THE REASONS UNDERLYING CONGRESS' DECISION TO
PROTECT "INVESTIGATORY FILES,"  BOTH IN THE ORIGINAL ACT AND IN THE
AMENDMENTS, ARE AS APPLILCABLE TO A DOCUMENT REFERRED TO IN AN ADVICE
OR APPEALS MEMORANDUM AS THEY ARE TO A DOCUMENT WHICH IS NOT. 
THEREFORE A DOCUMENT PROTECTED BY EXEMPTION 7 DOES NOT BECOME
DISCLOSABLE SOLELY BECAUSE IT IS REFERRED TO IN A "FINAL OPINION."  WE
ARE AWARE THAT THE RESULT OF THIS HOLDING WILL BE THAT SOME "FINAL
OPINIONS" WILL NOT BE AS EASILY UNDERSTOOD AS THEY WOULD OTHERWISE BE.
HOWEVER, AS NOTED ABOVE, THE ACT DOES NOT GIVE THE PUBLIC A RIGHT TO
INTELLIGIBLE OPINIONS IN ALL CASES.  IT SIMPLY GIVES THE PUBLIC A RIGHT
TO THOSE "FINAL OPINIONS," WHICH AN AGENCY CHOOSES TO WRITE, AND TO
WHICH THE ACT APPLIES.  CONGRESS HAS SAID THAT THE ACT "DOES NOT APPLY"
TO CERTAIN INVESTIGATORY FILES.  THE CASE MUST ACCORDINGLY BE REMANDED
TO THE DISTRICT COURT FOR A DETERMINATION WHETHER THE DOCUMENTS
INCORPORATED BY REFERENCE IN THE DISCLOSABLE ADVICE AND APPEALS
MEMORANDA ARE PROTECTED BY EXEMPTION 7, AS AMENDED. 

IN SUMMARY, WITH RESPECT TO ADVICE AND APPEALS MEMORANDA WHICH
CONCLUDE THAT A COMPLAINT SHOULD NOT BE FILED, WE AFFIRM THE JUDGMENT
OF THE COURT OF APPEALS SUBJECT TO ITS DECISION ON REMAND WHETHER THE
GOVERNMENT IS FORECLOSED FROM PURSUING ITS EXEMPTION 7 CLAIM.  WITH
RESPECT TO DOCUMENTS SPECIFICALLY INCORPORATED THEREIN, WE REMAND FOR A
DETERMINATION WHETHER THESE DOCUMENTS ARE PROTECTED BY EXEMPTION 7, AS
AMENDED.  INSOFAR AS THE JUDGMENT OF THE COURT OF APPEALS REQUUIRES THE
GENERAL COUNSEL TO SUPPLY DOCUMENTS NOT EXPRESSLY INCORPORATED BY
REFERENCE IN THESE ADVICE AND APPEALS MEMORANDA, OR OTHERWISE TO
EXPLAIN THE CIRCUMSTANCES OF THE CASE, IT IS REVERSED; AND WITH RESPECT
TO ADVICE AND APPEALS MEMORANDA WHICH CONCLUDE THAT A COMPLAINT SHOULD
BE FILED, THE JUDGMENT OF THE COURT OF APPEALS IS LIKEWISE REVERSED. 

SO ORDERED. 

/1/ TITLE 5 U.S.C. SEC. 552(A)(2) PROVICES IN PART: 

" EACH AGENCY, IN ACCORDANCE WITH PUBLISHED RULES, SHALL MAKE
AVAILABLE FOR PUBLIC INSPECTION AND COPYING--, 

"(A) FINAL OPINIONS, INCLUDING CONDURRING AND DISSENTING OPINIONS, AS
WELL AS ORDERS, MADE IN THE ADJUDICATION OF CASES; 

"(B) THOSE STATEMENTS OF POLICY AND INTERPRETATIONS WHICH HAVE BEEN
ADOPTED BY THE AGENCY AND ARE NOT PUBLISHED IN THE FEDERAL REGISTER;
AND 

"(C) ADMINISTRATIVE STAFF MANUALS AND INSTRUCTIONS TO STAFF THAT
AFFECT A MEMBER OF THE PUBLIC; "UNLESS THE MATERIALS ARE PROMPTLY
PUBLISHED AND COPIES OFFERED FOR SALE.  TO THE EXTENT REQUIRED TO
PREVENT A CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY, AN AGENCY
MAY DELETE IDENTIFYING DETAILS WHEN IT MAKES AVAILABLE OR PUBLISHES AN
OPINION, STATEMENT OF POLICY, INTERPRETATION, OR STAFF MANUAL OR
INSTRUCTION.  . . ." 

/2/ TITLE 5 U.S.C. SEC. 552(A)(3) PROVIDED IN PERTINENT PART: 

" EXCEPT WITH RESPECT TO THE RECORDS MADE AVAILABLE UNDER PARAGRAPHS
(1) AND (2) OF THIS SUBSECTION, EACH AGENCY, ON REQUEST FOR
IDENTIFIABLE RECORDS MADE IN ACCORDANCE WITH PUBLISHED RULES STATING
THE TIME, PLACE, FFES TO THE EXTENT AUTHORIZED BY STATUTE, AND
PROCEDURE TO BE FOLLOWED, SHALL MAKE THE RECORDS PROMPTLY AVAILABLE TO
ANY PERSON.  . . ." 

/3/ THE RELEVANT EXEMPT CATEGORIES ARE THOSE DESCRIBED IN EXEMPTIONS
2, 5, AND 7.  WITH RESPECT TO THEM, THE STATUTE PROVIDES: 

" THIS SECTION DOES NOT APPLY TO MATTERS THAT ARE--,

* * * * * 

"(2) RELATED SOLELY TO THE INTERNAL PERSONNEL RULES AND PRACTICES OF
AN AGENCY;

        * * * * * 

"(5) INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS OR LETTERS WHICH WOULD
NOT BE AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY IN LITIGATION
WITH THE AGENCY.  . .;

        * * * * * 

"(7) INVESTIGATORY FILES COMPILED FOR LAW ENFORCEMENT PURPOSES
EXCEPT TO THE EXTENT AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY .
. . ." 

/4/ ALL OF THE OFFICERS AND EMPLOYEES IN THE REGIONAL OFFICES ARE
UNDER THE GENERAL SUPERVISION OF THE GENERAL COUNSEL.  29 U.S.C. SEC.
153 (D); NATIONAL LABOR RELATIONS BOARD, ORGANIZATION AND FUNCTIONS,
SEC. 202.1.1 ET SEQ., 32 FED. REG. 9588 - 9589 (1967). 

/5/ THIS DOCUMENT IS NOT SOUGHT BY SEARS. 

/6/ IN APRIL 1971, THE GENERAL COUNSEL CEASED PREPARING A SEPARATE
APPEALS MEMORANDUM IN EVERY CASE, AND CEASED PREPARING ONE IN ANY CASE
IN WHICH THE REGIONAL DIRECTOR'S DECISION NOT TO ISSUE A COMPLAINT WAS
SUSTAINED.  IN THIS LATTER CLASS OF CASES, THE GENERAL COUNSEL ADOPTED
THE POLICY OF EXPANDING THE LETTER SENT TO THE CHARGING PARTY AND
SENDING THE REGIONAL DIRECTOR A COPY OF THE LETTER. 

/7/ STATEMENT SUBMITTED BY THE NLRB GENERAL COUNSEL TO A HOUSE LABOR
SUBCOMMITTEE ON JUNE 29, 1961 (HEREINAFTER STATEMENT), 1 CCH LAB.  L.
REP. 1150, P. 3075 (1968). 

/8/ A SUBJECT-MATTER INDEX TO ADVICE--BUT NOT APPEALS--MEMORANDA IS
MAINTAINED BY THE GENERAL COUNSEL. 

/9/ SEARS LATER ADDED A REQUEST FOR MEMORANDA "DEALING WITH THE
CONTRACT SUCCESSORSHIP DOCTRINE OF BURNS INTERNATIONAL DETECTIVE AGENCY
V. NLRB (THEN PENDING BEFORE THIS COURT), AS WELL AS CASES DEALING WITH
LOCKOUTS OCCURRING IN MULTI-EMPLOYER BARGAINING SITUATIONS." 

/10/ SEARS WAS THEN IN THE PROCESS OF PREPARING AN APPEAL TO THE
GENERAL COUNSEL IN WASHINGTON FROM A REFUSAL BY THE REGIONAL DIRECTOR
TO FILE A COMPLAINT WITH THE BOARD IN RESPONSE TO AN UNFAIR LABOR
PRACTICE CHARGE EARLIER FILED BY SEARS WITH THE REGIONAL DIRECTOR IN
SEATTLE, WASHINGTON.  THE REFUSAL WAS BASED UPON AN ADVICE MEMORANDUM
AND INVOLVED A JUDGMENT ABOUT THE TIMELINESS OF THE WITHDRAWAL BY SEARS
FROM A MULTIEMPLOYER BARGAINING UNIT; THE LETTER SENT BY THE REGIONAL
DIRECTOR TO SEARS TO EXPLAIN THE REFUSAL STATED THAT SEARS' WITHDRAWAL
HAD BEEN UNTIMELY.  SEARS' APPEAL--WITHOUT THE BENEFIT OF THE DOCUMENTS
SOUGHT--WAS ULTIMATELY SUCCESSFUL, A COMPLAINT WAS FILED WITH THE
BOARD, AND HEARINGS WERE SCHEDULED TO COMMENCE ON THE COMPLAINT ON
NOVEMBER 9, 1971.  PROCEEDINGS BEFORE THE BOARD WERE DELAYED FOR A TIME
BY A STAY ISSUED BY THE DISTRICT COURT, LATER REVERSED BY THE COURT OF
APPEALS, SEARS, REOBUCK & CO. V. NLRB, 163 U.S. APP. D.C. 380, 473 F.2D
91 (1973), CERT. DENIED, 415 U.S. 950 (1974); AND THE COMPLAINT WAS
EVENTUALLY WITHDRAWN UPON WITHDRAWAL OF THE UNDERLYING CHARGE. 

SEARS' RIGHTS UNDER THE ACT ARE NEITHER INCREASED NOR DECREASED BY
REASON OF THE FACT THAT IT CLAIMS AN INTEREST IN THE ADVICE AND APPEALS
MEMORANDA GREATER THAT THAT SHARED BY THE AVERAGE MEMBER OF THE
PUBLIC.  THE ACT IS FUNDAMENTALLY DESIGNED TO INFORM THE PUBLIC ABOUT
AGENCY ACTION AND NOT TO BENEFIT PRIVATE LITIGANTS.  EPA V. MINK, 410
U.S. 73, 79, 92 (1973); RENEGOTIATION BOARD V. BANNERCRAFT CLOTHING
CO., 415 U.S. 1, 24 (1974).  ACCORDINGLY, WE WILL NOT REFER AGAIN TO
SEARS' UNDERLYING UNFAIR LABOR PRACTICE CHARGE. 

/11/ THE REFERENCE WAS APPARENTLY TO THE PROVISIONS OF 5 U.S.C. SEC.
552(A)(2)(A) SPECIFICALLY PROVIDING FOR DISCLOSURE AND INDEXING OF
FINAL OPINIONS. 

/12/ THE EFEECTIVE DATE OF THE ACT. 

/13/ THE PARTIES MAKE NO ISSUE OF THE BREADTH OF THIS ORDER AND WE
ASSUME THAT IT WAS INTENDED TO APPLY ONLY TO THE APPEALS AND ADVICE
MEMORANDA DEALING WITH THE SUBJECT MATTERS DESCRIBED IN SEARS'
COMPLAINT. 

/14/ SEE 4 U.S.C. SEC. 552(A)(2). 

/15/ THE GENERAL COUNSEL HAS ABANDONED THE CONTRARY CONTENTION WHICH
HIS PREDECESSOR MADE IN CONNECTION WITH APPEALS MEMORANDA IN HIS AUGUST
4 LETTER TO SEARS 

/16/ THE ABILITY OF A PRIVATE LITIGANT TO OVERRIDE A PRIVILEGE CLAIM
SET UP BY THE GOBERNEMEN, WITH RESPECT TO AN OTHERWISE DISCLOSABLE
DOCUMENT, MAY ITSELF TURN ON THE EXTENT OF THE LITIGANT'S NEED IN THE
CONTEXT OF THE FACTS OF HIS PARTICULAR CASE; OR ON THE NATURE OF THE
CASE.  EPA V. MINK, 410 U.S., AT 86 N. 13; HICKMAN V. TAYLOR, 329
(1957); UNITED STATES V. NIXON, 418 U.S. 683 (1974).  HOWEVER, IT IS
NOT SENSIBLE TO CONSTRUE THE ACT TO REQUIRE DISCLOSURE OF ANY DOCUMENT
WHICH WOULD BE DISCLOSED IN THE HYPOTHETICAL LITIGATION IN WHICH THE
PRIVATE PARTY'S CLAIM IS THE MOST COMPELLING.  INDEED, THE HOUSE REPORT
SAYS THAT EXEMPTION 5 WAS INTENDED TO PERMIT DISCLOSURE OF THOSE INTRA
AGENCY MEMORANDA WHICH WOULD "ROUTINELY BE DISCLOSED" IN PRIVATE
LITIGATION, H. R. REP. NO. 1497, P. 10, AND WE ACCEPT THIS AS THE LAW. 
STERLING DRUG, INC. V. FTC, 146 U.S. APP. D.C. 237, 243 - 244, 450 F.2D
698, 704 - 705 (1974). 

/17/ OUR REMARKS IN UNITED STATES V. NIXON WERE MADE IN THE CONTEXT
OF A CLAIM OF "EXECUTIVE PRIVILEGE" RESTING SOLELY ON THE CONSTITUTION
OF THE UNITED STATES.  NO SUCH CLAIM IS MADE HERE AND WE DO NOT MEAN TO
INTIMATE THAT ANY DOCUMENTS INVOLVED HERE ARE PROTECTED BY WHATEVER
CONSTITUTIONAL CONTENT THE DOCTRINE OF EXECUTIVE PRIVILEGE MIGHT HAVE. 

/18/ OUR EMPHASIS ON THE NEED TO PROTECT PRE-DECISIONAL DOCUMENTS
DOES NOT MEAN THAT THE EXISTENCE OF THE PRIVILEGE TURNS ON THE AVILITY
OF AN AGENCY TO IDENTIFY A SPECIFIC DECISION IN CONNECTION WITH WHICH A
MEMORANDUM IS PREPARED.  AGENCIES ARE, AND PROPERLY SHOULD BE, ENGAGED
IN A CONTINUING PROCESS OF EXAMINING THEIR POLICIES; THIS PROCESS WILL
GENERATE MEMORANDA CONTAINING RECOMMENDATIONS WHICH DO NOT RIPEN INTO
AGENCY DECISIONS; AND THE LOWER COURTS SHOULD BE WARY OF INTERFERING
WITH THIS PROCESS. 

/19/ WE ARE AWARE THAT THE LINE BETWEEN PREDECISIONAL DOCUMENTS AND
POSTDECISIONAL DOCUMENTS MAY NOT ALWAYS BE A BRIGHT ONE.  INDEED, EVEN
THE PROTOTYPE OF THE POSTDECISIONAL DOCUMENT--THE "FINAL OPINION"--
SERVES THE DUAL FUNCTION OF EXPLAINING THE DECISION JUST MADE AND
PROVIDING GUIDES FOR DECISIONS OF SIMILAR OR ANALOGOUS CASES ARISING IN
THE FUTURE.  IN ITS LATTER FUNCTION, THE OPINION IS PREDECISIONAL; AND
THE MANNER IN WHICH IT IS WRITTEN MAY, THEREFORE, AFFECT DECISIONS IN
LATER CASES.  FOR PRESENT PURPOSES IT IS SUFFICIENT TO NOTE THAT FINAL
OPINIONS ARE PRIMARILY POSTDECISIONAL--WORKING BACK ON AND EXPLAINING,
AS THEY DO, A DECISION ALREADY REACHED OR A POLICY ALREADY ADOPTED--AND
THAT THEIR DISCLOSURE POSES A NEGLIGIBLE RISK OF DENYING TO AGENCY
DECISIONMAKERS THE UNINHIBITED ADVICE WHICH IS SO IMPORTANT TO AGENCY
DECISIONS.     /20/ THIS REPORT WAS PREPARED IN CONNECTION WITH A
SENATE BILL IDENTICAL TO THE ONE WHICH LED TO THE ACT, WHICH WAS
EVENTUALLY PASSED BY THE 89TH CONGRESS. 

/21/ SEE NOTE, 86 HARV. L. REV. 1047.  TECHNICALLY, OF COURSE, IF A
DOCUMENT COULD BE, FOR EXAMPLE, BOTH A "FINAL OPINION" AND AN INTRA
AGENCY MEMORANDUM WITHIN EXEMPTION 5, IT WOULD BE NONDISCLOSABLE, SINCE
THE ACT "DOES NOT APPLY" TO DOCUMENTS FALLING WITHIN ANY OF THE
EXEMPTIONS. 

/22/ THE GENERAL COUNSEL ARGUES THAT HE MAKES NO LAW, ANALOGIZING
HIS AUTHORITY TO DECIDE WHETHER OR NOT TO FILE A COMPLAINT TO A PUBLIC
PROSECUTOR'S AUTHORITY TO DECIDE WHETHER A CRIMINAL CASE SHOULD BE
BROUGHT, AND CLAIMS THAT HE DOES NOT ADJUDICATE ANYTHING RESEMBLING A
CIVIL DISPUTE.  WITHOUT DECIDING WHETHER A PUBLIC PROSECUTOR MAKES
"LAW" WHEN HE DECIDES NOT TO PROSECUTE OR WHETHER MEMORANDA EXPLAINING
SUCH DECISIONS ARE "FINAL OPINIONS," SEE INFRA, AT 158 AND N. 25, IT IS
SUFFICIENT TO NOTE THAT THE GENERAL COUNSEL'S ANALOGY IS FAR FROM
PERFECT.  THE GENERAL COUNSEL, UNLIKE MOST PROSECUTORS, MAY AUTHORIZE
THE FILING OF A COMPLAINT WITH THE BOARD ONLY IF A PRIVATE CITIZEN
FILES A "CHARGE."  29 U.S.C. SEC. 153(D) AND 160(B); 29 CFR SEC. 101.2;
AUTO WORKERS V. SCOFIELD, 382 U.S. 205, 219 (1965); NLRB V. INDIANA &
MICHIGAN ELECTRIC CO., 318 U.S. 9, 18 (1943).  UNLIKE THE VICTIM OF A
CRIME, THE CHARGING PARTY WILL, IF A COMPLAINT IS FILED BY THE GENERAL
COUNSEL, BECOME A PARTY TO THE UNFAIR LABOR PRACTICE PROCEEDING BEFORE
THE BOARD.  29 CFR SEC. 102.8; AUTO %WORKERS V. SCOFIELD, SUPRA, AT
219.  AND, IF AN UNFAIR LABOR PRACTICE IS FOUND TO EXIST, THE ENSUING
CEASE-AND-DESIST ORDER WILL, UNLIKE THE PUNISHMENT OF THE DEFENDANT IN
A CRIMINAL CASE, COERCE CONDUCT BY THE WRONGDOER FLOWING PARTICULARLY
TO THE BENEFIT OF THE CHARGING PARTY.  FOR THESE REASONS, WE HAVE
DECLINED TO CHARACTERIZE THE ENFORCEMENT OF THE LAWS AGAINST UNFAIR
LABOR PRACTICES EITHER AS A WHOLLY PUBLIC OR WHOLLY PRIVATE MATTER. 
ID., AT 218 - 219. 

/23/ THE GENERAL COUNSEL HIMSELF IN HIS LETTER TO SEARS OF AUGUST 4,
1971, REFERRED TO THE APPEALS MEMORANDA "IN WHICH AN APPEAL WAS DENIED"
AS "FINAL OPINIONS." 

/24/ DAVIS V. BRASWELL MOTOR FREIGHT LINES, INC., 363 F.2D 600 (CA 5
1966), RELIED ON HEAVILY BY THE GENERAL COUNSEL, IS NOT TO THE
CONTRARY.  IN THAT CASE, ADVICE MEMORANDA WERE HELD TO BE PRIVILEGED IN
THE CIVIL DISCOVERY CONTEXT.  HOWEVER, A READING OF THE CASE DISCLOSES
THAT THE ADVICE MEMORANDA THERE INVOLVED HAD BEEN ISSUED IN CASES THAT
LATER CAME BEFORE THE BOARD, AND IT MAY THEREFORE BE INFERRED THAT
THESE MEMORANDA DID NOT DIRECT DISMISSAL OF THE CHARGE, BUT DIRECTED
THE FILING OF A COMPLAINT. 

/25/ WE NOTE THAT THE POSSIBILITY THAT THE DECISION REACHED IN AN
ADVICE MEMORANDUM MAY BE OVERTURNED IN AN APPEALS MEMORANDUM, AS
HAPPENED IN THE CASE INVOLVING SEARS, DISCUSSED IN N. 10, SUPRA, DOES
NOT AFFECT ITS FINALITY FOR OUR PURPOSES.  THE DECISION REACHED IN THE
ADVICE MEMORANDUM, IN THE ABSENCE OF AN APPEAL FILED BY THE CHARGING
PARTY, HAS REAL OPERATIVE EFFECT, AS MUCH AS DOES EVERY ORDER ISSUED BY
A UNITED STATES DISTRICT COURT WHICH MIGHT, IF APPEALED, BE OVERTURNED
BY A UNITED STATES COURT OF APPEALS.  (INDEED, SINCE THE GENERAL
COUNSEL IS ULTIMATELY RESPONSIBLE FOR BOTH THE ADVICE AND THE APPEALS
MEMORANDA, AN APPEAL IN A CASE IN WHICH AN ADVICE MEMORANDUM IS
PREPARED IS MORE LIKE A PETITION FOR REHEARING THAN IT IS LIKE A NORMAL
APPEAL AND THE PROBABILITY THAT THE RESULT WILL CHANGE IS SLIM.)  THE
ADVICE MEMORANDUM IS THEREFORE UNLIKE BOTH THE ADVISORY OPINION
INVOLVED IN ITT V. ELECTRICAL WORKERS, 419 U.S. 428 (1975), AND THE
REGIONAL BOARD REPORTS--, WHICH CAN HAVE NO OPERATIVE EFFECT AT ALL
UNTIL REVIEWED BY THE STATUTORY BOARD--IN THE COMPANION CASE OF
RENEGOTIATION BOARD V. GRUMMAN AIRCRAFT, POST, P. 168. 

/26/ IT IS UNNECESSARY, THEREFORE, TO DECIDE WHETHER PETITIONERS ARE
CORRECT IN ASSERTING THAT, PROPERLY CONSTRUED, "INSTRUCTIONS TO STAFF"
DO NOT IN ANY EVENT INCLUDE DOCUMENTS PREPARED IN FURTHERANCE OF THE
"PROSECUTION" OF A SPECIFIC CASE. 

/27/ IT SHOULD BE NOTED THAT THE DOCUMENTS INCORPORATED BY REFERENCE
ARE IN THE MAIN FACTUAL DOCUMENTS WHICH ARE PROBABLY NOT ENTITLED TO
EXEMPTION 5 TREATMENT IN THE FIRST PLACE.  EPA V. MINK, 410 U.S., AT 87
- 93. 

/28/ THE "PURPOSES" WOULD APPEAR TO BE "TO PREVENT THE PREMATURE
DISCLOSURE OF THE RESULTS OF AN INVESTIGATION SO THAT THE GOVERNMENT
CAN PRESENT ITS STRONGEST CASE IN COURT, AND TO KEEP CONFIDENTIAL THE
PROCEDURES BY WHICH THE AGENCY CONDUCTED ITS INVESTIGATION AND BY WHICH
IT HAS OBTAINED INFORMATION."  FRANKEL V. SEC. 460 F.2D 813, 817 (CA
2), CERT. DENIED, 409 U.S. 889 (1972).  THE FIRST PURPOSE IS PLAINLY
INAPPLICABLE TO CASES IN WHICH THE GENERAL COUNSEL HAS DECLINED TO
COMMENCE A CASE; AND THE GENERAL COUNSEL NEVER TELLS US WHETHER ITS
"PROCEDURES" OR ITS "INFORMATION" SOURCES ARE REVEALED IN ADVICE OR
APPEALS MEMORANDA. 

/29/ WEISBERG V. DEPARTMENT OF JUSTICE, 160 U.S. APP. D.C. 71, 78 -
79, 489 F.2D 1195, 1202 - 1203 (1973) (EN BANC), CERT. DENIED, 416 U.S.
993 (1974).  ACCORD:  CENTER FOR NATIONAL POLICY REVIEW V. WEINBERGER,
____ U.S. APP. D.C.____, 502 F.2D 370 (1974); RURAL HOUSING ALLIANCE V.
DEPARTMENT OF AGRICULTURE, 162 U.S. APP. D.C. 122, 498 F.2D 73 (1974);
DITLOW V. BRINEGAR, 161 U.S. APP. D.C. 154, 155, 494 F.2D 1073, 1074,
CERT. DENIED, 419 U.S. 974 (1974); ASPIN V. DEPARTMENT OF DEFENSE, 160
U.S. APP. D.C. 231, 237, 491 F.2D 24, 30 (1973). 

/30/ SINCE THE GENERAL COUNSEL FAILED IN THE DISTRICT COURT TO
ASSERT A CLAIM UNDER THE VERSION OF EXEMPTION 7 WHICH WAS, IF ANYTHING,
MORE FAVORABLE TO HIS POSITION THAN THE CURRENT VERSION, THE COURT OF
APPEALS ON REMAND SHOULD DETERMINE WHETHER PETITIONERS ARE FORECLOSED
FROM FURTHER PURSUING THE ISSUE.  WE NOTE IN ADDITION, HOWEVER, THAT A
COURT OF EQUITY MAY ALWAYS AMEND ITS DECREE ON A PROPER SHOWING, AND
THE DISTRICT COURT MAY WISH TO DO SO, IF THE GENERAL COUNSEL
DEMONSTRATES AN INJURY TO HIS FUNCTIONS OF THE TYPE SOUGHT TO BE
PREVENTED IN EXEMPTION 7, RESULTING FROM THE DISCLOSURE OF A PARTICULAR
ADVICE OF APPEALS MEMORANDUM. 

THE CHIEF JUSTICE CONCURS IN THE JUDGMENT. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR PETITIONERS. 
WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL BORK, ALLAN ABBOT TUTTLE,
PETER G. NASH, JOHN S. IRVING, PATRICK HARDIN, AND NORTON J. COME. 

GERARD C. SMETANA ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE LAWRENCE M. COHEN, JEFFREY S. GOLDMAN, AND ALAN RAYWID. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY MILTON SMITH
AND JERRY KRONENBERG FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES;
BY CAROL A. COWGILL, PETER H. SCHUCK, MARVIN M. KARPATKIN, AND MELVIN
L. WULF FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL.; AND BY ALAN B.
MORRISON FOR FREEDOM OF INFORMATION CLEARINGHOUSE. 
..END :



















RENEGOTIATION BOARD V. GRUMMAN AIRCRAFT, 421 U.S. 168 


       RENEGOTIATION BOARD V. GRUMMAN AIRCRAFT ENGINEERING CORP.

        CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

       NO. 73 - 1316.  ARGUED JANUARY 14, 1975--DECIDED APRIL 28,

           1975; 157 U.S. APP. D.C. 121, 482 F.2D 710, REVERSED. 


    PURSUANT TO THE GOVERNMENT CONTRACT RENEGOTIATION PROCESS IN

  EFFECT UNDER THE RENEGOTIATION ACT OF 1951 FOR SO-CALLED CLASS A

  CASES (THOSE IN WHICH THE CONTRACTOR REPORTED PROFITS OF MORE

  THAN $800,000 ON THE RELEVANT CONTRACTS) DURING THE PERIOD

  INVOLVED IN THIS CASE, IF THE REGIONAL BOARD MADE A

  RECOMMENDATION AS TO THE AMOUNT OF EXCESSIVE PROFITS IN THE YEAR

  IN ISSUE RATHER THAN RECOMMENDING A CLEARANCE, I.E., A UNILATERAL

  DETERMINATION THAT A CONTRACTOR REALIZED NO EXCESSIVE PROFITS

  DURING THE YEAR IN ISSUE, THE CASE, FILE, INCLUDING THE REGIONAL

  BOARD REPORT, WAS THEN TRANSMITTED TO THE BOARD AND ASSIGNED TO A

  DIVISION OF THE BOARD, USUALLY CONSISTING OF THREE OF ITS FIVE

  MEMBERS, WHICH IN DUE COURSE WOULD MAKE ITS OWN DECISION AND

  DUBMIT TO THE FULL BOARD A DIVISION REPORT, INCLUDING A

  RECOMMENDATION FOR FINAL DISPOSITION OF THE CASE.  IF THE

  REGIONAL BOARD CONCLUDED THAT NO EXCESSIVE PROFITS HAD BEEN

  REALIZED AND THAT A CLEARANCE SHOULD THEREFORE ISSUE, A "FINAL

  RECOMMENDATION" THAT A CLEARANCE BE ISSUED WAS SENT TO THE BOARD,

  WHICH CONSIDERED THE CASE ON THE BASIS OF THE REGIONAL BOARD

  REPORT.  RESPONDENT BROUGHT AN ACTION PURSUANT TO THE FREEDOM OF

  INFORMATION ACT (FOIA), 5 U.S.C. SEC. 552, SEEKING DISCLOSURE OF

 CERTAIN REGIONAL BOARD REPORTS RESULTING IN A RECOMMENDATION OF

  CLEARANCE AND BOARD APPROVAL, AND OF DIVISION REPORTS IN OTHER

  CASES, ALL RELATED TO AND ISSUED DURING RENEGOTIATION PROCEEDINGS

  INVOLVING 14 OTHER COMPANIES DURING THE PERIOD 1962 - 1965.  THE

  DISTRICT COURT ULTIMATELY GRANTED RELIEF ON THE GROUNDS THAT BOTH

  THE REGIONAL BOARD AND DIVISION REPORTS WERE "FINAL OPINIONS"

  WITHIN THE MEANING OF SEC. 552(A) (2)(A), WHICH REQUIRES A

  GOVERNMENT AGENCY TO MAKE AVAILABLE TO THE PUBLIC "FINAL

  OPINIONS, INCLUDING CONCURRING AND DISSENTING OPINIONS, AS WELL

 AS ORDERS, MAKE IN THE ADJUDICATION OF CASES," ANE WERE NOT

  EXEMPT FROM DISCLOSURE UNDER SEC. 552(B)(5) (EXEMPTION 5) AS

  "INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS . . . WHICH WOULD NOT

  BE AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY IN LITIGATION

  WITH THE AGENCY."  THE COURT OF APPEALS AFFIRMED FURTHER HOLDING

  THAT EVEN IF THE REGIONAL BOARD REPORTS WERE NOT "FINAL OPINIONS"

  OF THE BOARD, THEY WERE DISCLOSABLE AS FINAL OPINIONS OF THE

  REGIONAL BOARD, WHICH WAS TO BE CONSIDERED AN "AGENCY" FOR

  PURPOSED OF THE FOIA.  HELD:  NEITHER THE REGIONAL BOARD NOR

DIVISION REPORTS ARE FINAL OPINIONS AND THEY DO FALL WITHIN

 EXEMPTION 5, SINCE (1) ONLY THE FULL BOARD HAS THE POWER BY LAW

  TO MAKE THE DECISION WHETHER EXCESSIVE PROFITS EXIST; (2) BOTH

  TYPES OF REPORTS ARE PREPARED PRIOR TO THAT DECISION AND ARE USED

  BY THE BOARD IN ITS DELIBERATIONS; AND (3) THE EVIDENCE FAILS TO

  SUPPORT THE CONCLUSION THAT THE REASONING IN THE REPORTS IS

  ADOPTED BY THE BOARD AS ITS REASONING, EVEN WHEN IT AGREES WITH

  THE REPORT'S CONCLUSION.  PP. 183 - 190. 

     (A) THE REGIONAL BOARD REPORTS, BEING PREPARED LONG BEFORE THE

  BOARD REACHED ITS DECISION AND BEING USED BY IT AS A BASIS FOR

  DISCUSSION, ARE PRECISELY THE KIND OF PREDECISIONAL DELIBERATIVE

  ADVICE AND RECOMMENDATIONS CONTEMPLATED BY EXEMPTION 5 WHICH MUST

  REMAIN UNINHIBITED AND THUS UNDISCLOSED, IN ORDER TO SUPPLY

  MAXIMUM ASSISTANCE TO THE BOARD IN REACHING ITS DECISION. 

  REGARDLESS OF WHETHER THE REGIONAL BOARDS ARE AGENCIES FOR CLASS

  A PURPOSES SO THAT THEIR FINAL RECOMMENDATIONS ARE INTER-AGENCY

  MEMORANDA, OR ARE NOT AGENCIES SEPARATE FROM THE BOARD SO THAT

  THEIR RECOMMENDATIONS ARE INTRA-AGENCY MEMORANDA, THE REGIONAL

  BOARDS' TOTAL LACK OF DECISIONAL AUTHORITY BRINGS THEIR REPORTS

  WITHIN EXEMPTION 5 AND PREVENTS THEM FROM BEING "FINAL

  OPINIONS."  PP. 185 - 188. 

     (B) SINCE THE DIVISION REPORTS WERE PREPARED BEFORE THE BOARD

  REACHED ITS DECISION AND TO ASSIST IT IN ITS DELIBERATIONS, AND

  WERE USED BY THE FULL BOARD AS A BASIS FOR DISCUSSION, THE BOARD

  SHOULD NOT BE DEPRIVED OF SUCH A THOROUGHLY UNINHIBITED VERSION

  OF THIS VALUABLE DELIBERATIVE TOOL BY MAKING SUCH REPORTS PUBLIC

  ON THE UNSUPPORTED ASSUMTION THAT THEY ALWAYS DISCLOSE THE FINAL

  VIEWS OF AT LEAST SOME BOARD MEMBERS.  PP. 189 - 190. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

  C.J., AND BRENNAN, STEWART, MARSHALL, BLACKMUN, AND REHNQUIST,

  JJ., JOINED.  DOUGLAS, J., DISSENTED.  POWELL, J., TOOK NO PART

  IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT, 

THE ISSUE IN THIS CASE IS WHETHER CERTAIN DOCUMENTS--, DOCUMENTS
GENERATED BY THE RENEGOTIATION BOARD (THE BOARD) AND BY ITS REGIONAL
BOARDS IN PERFORMING THEIR TASK OF DECIDING WHETHER CERTAIN GOVERNMENT
CONTRACTORS HAVE EARNED, AND MUST REFUND, "EXCESSIVE PROFITS" ON THEIR
GOVERNMENT CONTRACTS--ARE "FINAL OPINIONS" EXPLAINING THE REASONS FOR
AGENCY DECISIONS ALREADY MADE, AND THUS EXPRESSLY SUBJECT TO DISCLOSURE
PURSUANT TO THE FREEDOM OF INFORMATION ACT (ACT), 5 U.S.C. SEC.
552(A)(2)(A), OR ARE INSTEAD PREDECISIONAL CONSULTATIVE MEMORANDA
EXEMPTED FROM DISCLOSURE BY SEC. 552(B)(5).  SEE NLRB V. SEARS, ROEBUCK
& CO., ANTE, P. 132. 

        I 

ESSENTIAL TO THE CONSIDERATION OF WHETHER THE DOCUMENTS AT ISSUE IN
THIS CASE MUST BE DISCLOSED PURSUANT TO THE RELEVANT PROVISIONS OF THE
ACT IS AN UNDERSTANDING OF THE RENEGOTIATION PROCESS, A PROCESS THAT
ITSELF SERVES TO DEFINE THE DOCUMENTS IN ISSUE AND HEREINAFTER
DESCRIBED.  /1/  UNDER THE RENEGOTIATION ACT OF 1951, PUB. L. 9, 65
STAT. 7, AS AMENDED, 50 U.S.C. APP. SEC. 1211 ET SEY., THE GOVERNMENT
IS ENTITLED TO RECOUP FRM THOSE WHO HOLD CONTRACTS OR SUBCONTRACTS WITH
CERTAIN DEPARTMENTS OF THE GOVERNMENT AND "EXCESSIVE PROFITS" RECEIVED
BY SUCH PERSONS ON SUCH CONTRACTS.  THE AMOUNT OF THE PROFITS WHICH
WILL BE CONSIDERED "EXCESIVE" IN CONNECTION WITH A PARTICULAR CONTRACT
DEPENDS UPON THE STATUTORY FACTORS WHICH ARE SET FORTH IN THE MARGIN. 
/2/ AS THE BOARD4S NAME SUGGESTS, IT ENDEAVORS TO, AND IN FACT DOES,
CONCLUDE THE VAST MAJORITY OF ITS CASES BY AGREEMENT.  50 U.S.C. APP.
SEC. 1215(A) (1970) ED., SUPP. I).  ABSENT AN AGREEMENT, HOWEVER, THE
BOARD MUST DECIDE EITHER TO ISSUE A "CLEARANCE," I.E., A UNILATERAL
DETERMINATION THAT THE CONTACTOR REALIZED NO EXCESSIVE PROFITS DURING
THE YEAR IN ISSUE, OR TO ISSUE A UNILATERAL ORDER FIXING EXCESSIVE
PROFITS AT A SPECIFIED AMOUNT AND DIRECTING THE CONTRACTOR TO REFUND
THEM.  THE UNILATERAL ORDER IS FINAL UNLESS A DE NOVO DETERMINATION
REGARDING EXCESSIVE PROFITS IS SOUGHT WITHIN 90 DAYS BEFORE THE COURT
OF CLAIMS.  /3/ IT IS IN THOSE CASES NOT TERMINATED BY AGREEMENT THAT
THE DOCUMENTS AT ISSUE IN THIS CASE WERE GENERATED.  /4/  WITH THIS IN
MIND, WE TURN TO THE DETAILS OF THE RENEGOTIATION PROCESS AS IT EXISTED
DURING THE PERIOD RELEVANT TO THE DECISION IN THIS CASE.  /5/ 

PERSONS HOLDING CONTRACTS OR SUBCONTRACTS WITH CERTAIN DEPARTMENTS
OF THE GOVERNMENT WERE REQUIRED TO FILE FINANCIAL STATEMENTS AS
PRESCRIBED BY THE BOARD, 50 U.S.C. APP. SEC. 1215(E)(1) (1964 ED.); 32
CFR PART 1470, IF THEIR RECEIPTS FROM THOSE CONTRACTS MET THE REQUISITE
JURISDICTIONAL AMOUNT, 50 U.S.C. APP. SEC. 1215(F).  THESE STATEMENTS
WERE REVIEWED BY THE STAFF OF THE BOARE, AND, IF THAT INITIAL REVIEW
INDICATED THE POSSIBILITY THAT THE CONTRACTOR REALIZED "EXCESSIVE"
PROFITS, THE "CASE" WAS REFERRED TO ONE OF TWO REGIONAL BOARDS FOR
FURTHER ACTION.  /6/  AT THE TIME OF THIS ASSIGNMENT, EACH CASE WAS
DESIGNATED AS A CLASS A CASE OR A CLASS B CASE:  THE FORMER IF THE
CONTRACTOR HAD REPORTED PROFITS OF MORE THAN $800,000 ON THE RELEVANT
CONTRACTS COVERED IN HIS FINANCIAL STATEMENT, AND THE LATTER IN ALL
OTHER CASES.  /7/ THE PRINCIPAL DIFFERENCE BETWEEN CLASS A CASES AND
CLASS B CASES WAS THAT THE REGIONAL BOARDS HAD SOME FINAL DECISIONAL
AUTHORITY IN THE LATTER AND NONE IN THE FORMER.  32 CFR SEC. 1471.2(B),
1473.2(A), 1474.3(A), AND 1475.3(A).  SINCE THE DOCUMENTS SOUGHT BY
RESPONDENT IN THIS CASE WERE ALL GENERATED IN CLASS A CASES, ONLY THE
PROCEDURE APPLICABLE TO THOSE CASES WILL BE DISCUSSED. 

AFTER REFERENCE TO A REGIONAL BOARD, A CASE WAS USUALLY ASSIGNED TO
A STAFF TEAM CONSISTING OF AN ACCOUNTANT AND A RENEGOTIATOR.  /8/ THIS
TEAM, AFTER DETERMINING WHAT FURTHER INFORMATION AND RECEIVED ANY
SUBMISSIONS THE CONTRACTOR MIGHT HAVE WANTED TO MAKE WITH REGARD TO HIS
CASE, INCLUDING HIS POSITION CONCERNING THE STATUTORY FACTORS THAT
LARGELY DETERMINED WHETHER HE HAD RECEIVED "EXCESSIVE PROFITS," 50
U.S.C. APP. SEC. 1213(E).  A DOCUMENT ENTITLED " REPORT OF
RENEGOTIATION" WAS THEN PREPARED BY THE TEAM.  PART IA OF THAT REPORT,
THE ACCOUNTANT'S SECTION, CONTAINED PERTINENT FINANCIAL AND ACCOUNTING
DATA AND WAS FURNISHED TO THE CONTRACTOR UPON REQUEST.  /9/ PART II OF
THE REPORT OF RENEGOTIATION, PREPARED BY THE RENEGOTIATOR, AND NOT
FURNISHED TO THE CONTRACTOR, GENERALLY CONTAINED "AN ANALYSIS AND
EVALUATION OF THE CASE; AND A RECOMMENDATION WITH RESPECT TO THE
AMOUNT, IF ANY, OF EXCESSIVE PROFITS ROR THE FISCAL YEAR UNDER
REVIEW."  32 CFR SEC. 1472.3(D).  ACCORDING TO TESTIMONY GIVEN IN THIS
CASE, A PART II IN OUTLINE FORM WOULD BE AS FOLLOWS: 

     " A. SOURCES OF INFORMATION 

     " B. APPLICATION OF STATUTORY FACTOR:  "1.  CHARACTER OF
BUSINESS "2.  CAPITAL EMPLOYED 

"3.  EXTENT OF RISK ASSUMED "4.  CONTRIBUTION TO THE DEFENSE EFFORT
"5.  EFFICIENCY

 "6.  REASONABLENESS OF COSTS AND PROFITS "(A) COSTS "(B) PRICING
"(C) PROFITS 

     " C. SPECIAL MATTERS 

     " D. CONCLUSION AND RECOMMENDATIONS." 

AFTER A REPORT OF RENEGOTIATION WAS PREPARED, BUT PRIOR TO ITS
SUBMISSION TO THE REGIONAL BOARD, THE TEAM ASSIGNED TO THE CASE
ENDEAVORED TO MEET WITH THE CONTRACTOR TO RESOLVE "ANY ISSUES OR
DISPUTED MATTERS OF FACT, LAW OR ACCOUNTING."  32 CFR SEC. 1472.3(B). 
THE REPORT WAS THEN SUBMITTED TO THE REGIONAL BOARD. 

AFTER REVIEWING THE REPORT OF RENEGOTIATION AND THE CASE FILE, THE
REGIONAL BOARD WOULD MAKE A "TENTATIVE RECOMMENDATION WITH RESPECT TO
THE AMOUNT OF EXCESSIVE PROFITS REALIZED IN THE FISCAL YEAR UNDER
REVIEW."  32 CFR SEC. 1473.3(E).  /10/ THIS "TENTATIVE RECOMMENDATION"
COULD "BE IN AN AMOUNT GREATER THAN, EQUAL TO, OR LESS THAN THE AMOUNT
RECOMMENDED IN THE REPORT OF RENEGOTIATION."  IBID.  AFTER A "TENTATIVE
RECOMMENDATION" WAS MADE, THE CONTRACTOR, UNLESS HE DECLINED, ATTENDED
A MEETING WITH THE RENEGOTIATION TEAM AT WHICH HE WAS INFORMED OF THE
TENTATIVE RECOMMENDATION OF THE REGIONAL BOARD, AS WELL AS THE REGIONAL
BOARD'S REASONS THERFOR, AND WAS AFFORDED THE OPPORTUNITY TO RESPOND. 
THE REGIONAL BOARD WOULD THEN ENTER A "FINAL RECOMMENDATION" EITHER
THAT A CLEARANCE BE ISSUED OR THAT EXCESSIVE PROFITS BE FOUND IN AN
AMOUNT GREATER THAN, EQUAL TO, OR LESS THAN THE TENTATIVE
RECOMMENDATION REACHED PREVIOUSLY.  IF THIS FINAL RECOMMENDATION OF THE
REGIONAL BOARD CORRESPONDED TO THAT OF THE STAFF TEAM OR PANEL, THE
REPORT WOULD BE SIGNED BY THE CHAIRMAN OF THE REGIONAL BOARD,
SIGNIFYING THE APPROVAL OF THE STAFF OR PANEL RECOMMENDATION; IF THE
REGIONAL BOARD'S FINAL RECOMMENDATION DIFFERED FROM THE PRIOR
RECOMMENDATION, AN ADDENDUM WOULD BE ATTACHED TO THE REPORT.  THE
REPORT OF RENEGOTIATION WITH ADDENDA, IF ANY, WILL HEREAFTER BE
REFERRED TO FOR CONVENIENCE AS THE REGIONAL BOARD REPORT. 

        (I) 

ASSUMING THE REGIONAL BOARD DID NOT RECOMMEND A CLEARANCE, IT
NOTIFIED THE CONTRACTOR OF ITS FINAL RECOMMENDATION IN AN EFFORT TO
OBTAIN AN AGREEMENT.  TOWARD THIS END, THE CONTRACTOR, UPON REQUEST
WOULD BE FURNISHED A "SUMMARY OF THE FACTS AND REASON" (SUMMARY) UPON
WHICH THE RECOMMENDATION WAS BASED.  32 CFR SEC. 1472.3 (I).  /11/ IF A
CONTRACTOR DID NOT REQUEST SUCH A DOCUMENT, THERE IS NO INDICATION THAT
ONE WAS EVER PREPARED IN HIS CASE. 

IF THE CONTRACTOR DECLINED TO ENTER INTO AN AGREEMENT, THE CASE WAS
THEN REASSIGNED TO THE BOARD, TO WHICH THE CASE FILE INCLUDING THE
REGIONAL BOARD REPORT WAS TRANSMITTED.  THE CASE WAS THEN ASSIGNED TO A
"DIVISION" OF THE BOARD, USUALLY CONSISTING OF THREE OF ITS FIVE
MEMBERS, WHICH WOULD UNDERTAKE A STUDY OF THE CASE.  STAFF PERSONNEL
WOULD GO OVER BOTH PART IA AND PART II OF THE REGIONAL BOARD REPORT AND
INDICATE, IN MEMORANDA, THEIR AGREEMENT OR DISAGREEMENT WITH THE
RECOMMENDATION MADE BY THE REGIONLA BOARD.  AT AN APPROPRIATE JUNCTURE,
THE CONTRACTOR WOULD BE AFFORDED AN OPPORTUNITY TO MEET WITH THE
DIVISION MEMBERS TO DISCUSS HIS CASE AND SUBMIT ADDITIONAL RELEVANT
MATERIAL.  THE DIVIDION, IN DUE COURSE, WOULD REACH ITS OWN DECISION AS
TO WHAT RECOMMENDATION SHOULD BE MADE TO THE BOARD, "NOT . . . BOUND OR
LIMITED IN ANY MANNER BY ANY EVALUATION, RECOMMENDATION OR
DETERMINATION OF THE REGIONAL BOARD."  32 CFR SEC. 1472.4(B).  THE
DIVISION WOULD THEN SUBMIT TO THE FULL BOARD A REPORT OF THE CASE,
PREPARED BY ONE OF THE MEMBERS (DIVISION REPORT), AND INCLUDING A
RECOMMENDATION FOR FINAL DISPOSITION ALONG WITH ADDITIONAL OR CONTRARY
VIEWS, IF ANY, OF THE OTHER DIFISION MEMBERS.  THE DIVISION REPORT IS
ONE OF THE CATEGORIES OF DOCUMENTS SOUGHT BY RESPONDENT UNDER THE ACT. 

THE BOARD WOULD THEN MEET, EACH MEMBER HAVING HAD THE OPPORTUNITY TO
STUDY THE CASE FILE AND THE REPORT SUBMITTED ON BEHALF OF THE DIVISION,
DISCUSS THE CASE, AND VOTE ON A FINAL DISPOSITION.  NEITHER THE BOARD
NOR ANY OF ITS MEMBERS WERE BOUND BY ANY PRIOR RECOMMENDATIONS.  THE
BOARD WAS FREE, AFTER DISCUSSION, TO REJECT THE PROPOSED CONCLUSION
REACHED IN THE DIVISION REPORT, OR TO ACCEPT IT FOR REASONS OTHER THAN
THOSE SET FORTH IN THE REPORT.  32 CFR SEC. 1472.4(D).  ASSUMING THE
BOARD DID NOT DECIDE THAT A CLEARANCE SHOULD ISSUE, THE CONTRACTOR WAS
THEN NOTIFIED OF THE BOARD'S CONCLUSION AND WOULD BE GIVEN, AT HIS
REQUEST, A SUMMARY TO ENABLE HIM TO DECIDE WHETHER TO ENTER INTO AN
AGREEMENT WITH THE BOARD.  IF AN AGREEMENT WAS NOT REACHED, THE BOARD
WOULD THEN ENTER A UNILATERAL ORDER WITHIN A SPECIFIED TIME, 32 CFR
PART 1475, AND WOULD ISSUE, PURSUANT TO STATUTE, AT THE REQUEST OF THE
CONTRACTOR, A "STATEMENT OF SUCH DETERMINATION, OF THE FACTS USED AS A
BASIS THEREFOR, AND OF ITS REASONS FOR SUCH DETERMINATINN."  50 U.S.
APP. SEC. 1215(A) (STATEMENT).  /12/  ABSENT A CONTRACTOR'S REQUEST FOR
A STATEMENT, THERE IS NO INDICATION THAT ONE WAS EVER PREPARED IN HIS
CASE.  FOR THIS TYPE OF CASE, THE RENEGOTIATION PROCESS THUS CAME TO AN
END.  /13/

        (II) 

IF THE REGIONAL BOARD CONCLUDED THAT NO EXCESSIVE PROFITS HAD BEEN
REALIZED BY A PARTICULAR CONTRACTOR AND THAT A CLEARANCE SHOULD
THEREFORE ISSUE--OR IF THE CONTRACTOR AGREED WITH THE REGIONAL BOARD AS
TO AN AMOUNT OF EXCESSIVE PROFITS BEFORE THE CASE WAS REASSIGNED TO THE
BOARD--THEN A DIVISION REPORT WAS NEVER CREATED IN THAT CASE.  INSTEAD,
A "FINAL RECOMMENDATION" THAT A CLEARANCE BE ISSUED OR THAT THE
AGREEMENT BE CONSUMMATED WAS SENT TO THE BOARD, AND THE BOARD
CONSIDERED THE CASE ON THE BASIS OF THE REGIONAL BOARD REPORT, TOGETHER
WITH COMMENTS MADE BY THE BOARD'S ACCOUNTING AND REVIEW DIVISIONS. 
AFTER MEETING AND DISCUSSING THE CASE ON THE BASIS OF THESE DOCUMENTS,
THE BOARD DECIDED WHETHER TO APPROVE THE REGIONAL BOARD'S CONCLUSION. 
IF IT DID, APPROPRIATE CLOSING DOCUMENTS WERE PREPARED BY THE REGIONAL
BOARD.  NO EXPLANATION OF THE BOARD'S REASONS FOR AGREEING WITH THE
REGIONAL BOARD'S RECOMMENDATION WAS PREPARED OR SENT TO THE CONTRACTOR;
AND IT IS NOT POSSIBLE TO KNOW WHETHER THE BOARD AGREED WITH THE
REASONING OF THE REGIONAL BOARD REPORT OR JUST ITS CONCLUSION.  IF THE
CONCLUSION OF THE REGIONAL BOARD WAS NOT APPROVED, THE CASE WAS EITHER
RETURNED TO THE REGIONAL BOARD FOR FURTHER FACTFINDING, OR ASSIGNED TO
A DIVISION OF THE BOARD AS THOUGH NO RECOMMENDATION AGREEABLE TO THE
CONTRACTOR HAD EVER BEEN MADE.  THE REGIONAL BOARD REPORTS IN THE
CATEGORY OF CASES IN WHICH CLEARANCES WERE RECOMMENDED AND APPROVED BY
THE BOARD--  AND THEREFORE IN WHICH NO DIVISION REPORT WAS CREATED--IS
THE OTHER TYPE OF DOCUMENT IN ISSUE IN THIS CASE. 

     II 

AGAINST THE FOREGOING BACKDROP, RESPONDENT FILED A COMPLAINT,
PURSUANT TO THE ACT, IN THE DISTRICT COURT ON JUNE 27, 1968, SEEKING
DISCLOSURE OF "CERTAIN FINAL OPINIONS, ORDERS AND IDENTIFIABLE RECORDS"
RELATED TO OR ISSUED DURING RENEGOTIATION PROCEEDINGS INVOLVING 14
OTHER COMPANIES DURING THE PERIOD 1962 - 1965.  /14/ RESPONDENT
ADDITIONALLY SOUGHT CERTAIN DOCUMENTS RELATED TO ITS THEN-PENDING
RENEGOTIATION PROCEEDINGS BEFORE THE BOARD FOR 1965, BUT LATER AGREED
THAT IT WAS NOT SEEKING ACCESS TO "(INTRA-AGENCY MEMORANDA AND
COMMUNICATIONS CONSISTING OF ADVISORY OPINIONS, CONCLUSIONS
RECOMMENDATIONS, AND ANALYSIS PREPARED BY PERSONNEL AND MEMBERS OF THE
BOARD" IN ITS OWN CASE.  138 U.S. APP. D.C. 147, 150, 425 F.2D 578, 581
(1970).  THE DISTRICT COURT DENIED RELIEF.  ON APPEAL, THE COURT OF
APPEALS APPEARS TO HAVE ASSUMED THAT THE "OPINIONS" SOUGHT BY
RESPONDENT WERE LIMITED TO STATEMENTS AND SUMMARIES AS DEFINED IN 32
CFR SEE.  1480.8.  /15/ 138 U.S. APP. D.C., AT 148 AND N. 2, 425 F.2D,
AT 579 AND N. 2.  ON THIS BASIS, THE COURT OF APPEALS REVERSED,
REJECTING THE CLAIM OF THE RENEGOTIATION BOARD THAT THE DOCUMENTS
SOUGHT WERE "COMPLETELY IMMUNE"  FROM DISCLOSURE UNDER 5 U.S.C. SEC.
552(B)(4), THE PROVISION OF THE ACT EXEMPTING CERTAIN PRIVILEGED OR
CONFIDENTIAL INFORMATION SUBMITTED TO THE GOVERNMENT BY ANY PERSON. 
/16/ THE COURT, STATING THAT THE BOARD WAS REQUIRED TO MAKE AVAILABLE
"FINAL OPINIONS, INCLUDING CONCURRING AND DISSENTING OPINIONS,'" /17/
REMANDED THE CASE TO THE DISTRICT COURT FOR FUTTHER PROCEEDINGS IN
WHICH THE REQUESTED DOCUMENTS WERE TO BE MADE AVAILABLE AFTER "SUITABLE
DELETIONS."  138 U.S. APP. D.C., AT 150, 425 F.2D, AT 581. 
SUBSEQUENT TO THE REMAND OF THE CASE BY THE COURT OF APPEALS, THE BOARD
TURNED OVER TO RESPONDENT CERTAIN DOCUMENTS, INCLUDING STATEMENTS AND
SUMMARIES, IN ATTEMPTED COMPLIANCE WITH THE MANDATE OF THAT COURT. 
RESPONDENT, NOT SATISFIED WITH THE DOCUMENTS TO DISCLOSED, MOVED IN THE
DISTRICT COURT FOR THE DISCLOSURE, INTER ALIA, OF (1) DIVISION REPORTS
IN ALL CASES IN WHICH NEITHER " STATEMENTS" NOR "SUMMARIES" WERE
CREATED; (2) REGIONAL BOARD REPORTS RESULTING IN A CLEARANCE; AND (3)
ANY DOCUMENT CONCURRING IN OR DISSENTING FROM (3) AND (2) AVOVE.  /18/ 

ON THE QUESTION WHETHER THESE DOCUMENTS WERE "FINAL OPINIONS,
INCLUDING CONCURRING AND DISSENTING OPINIONS, AS WELL AS ORDERS, MADE
IN THE ADJUDICATION OF CASES," 5 U.S.C. SEC. 552(A)(2)(A), THE DISTRICT
COURT PERMITTED RESPONDENT TO DEPOSE THE THEN CHAIRMAN OF THE
RENEGOTIATION BOARD.  THAT DEPOSITION OF THE CHAIRMAN CONSTITUTES
ALMOST THE ONLY EVIDENCE OF RECORD IN THIS CASE BEARING ON THIS
QUESTION OTHER THAN THE PERTINENT STATUTES AND REGULATIONS.  ALTHOUGH
CONCEDING, AS IT HAD TO ON THE BASIS OF THE CHAIRMAN'S DEPOSITION, THAT
ONLY THE BOARD HAD FINAL DECISIONAL AUTHORITY, AND THAT IT STUDIES AND
CONSIDERS, BUT DOES NOT ADOPT REGIONAL BOARD OR DIVISION REPORTS, THE
DISTRICT COURT HELD THAT THESE REPORTS WERE "FINAL OPINIONS" FOR
PURPOSES OF THE ACT AND REJECTED THE BOARD'S CONTENTION THAT THE
DOCUMENTS WERE SPECIFICALLY EXEMPTED FROM DISCLOSURE UNDER SUBSECTION
(B)(5) OF THE ACT, 5 U.S.C. SEC. 552(B)(5) (EXEMPTION 5), WHICH
ENCOMPASSES: 

"INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS OR LETTERS WHICH WOULD NOT
BE AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY IN LITIGATION WITH
THE AGENCY."  AS TO THE REGIONAL BOARD REPORTS IN CLEARANCE CASES, THE
COURT CHARACTERIZED THE CLEARANCE AS THE "DECISION" OF THE REGIONAL
BOARD "UNLESS THE BOARD IS NOT IN ACCORD"; AND HELD THAT "(IN ORDER FOR
THE PUBLIC TO BE FULLY INFORMED, THE REASONS BEHIND THE CLEARANCE . . .
MUST BE MADE AVAILABLE AND IN THIS TYPE OF CASE SUCH . . . REASONS ARE
FOUND IN THE REGIONAL BOARD'S REPORT."  AS TO THE DIVISION REPORTS, THE
COURT SAID THAT, ALTHOUGH THE BOARD MAY DISAGREE WITH THE REASONING OF
THE REPORT, "(IT IS IN FACT THE LAST DOCUMENT WHICH EXPLAINS REASON FOR
THE BOARD'S DECISION," IT SHOULD "AT THE VERY LEAST . . . REFLECT THE
ANALYSIS OF ONE MEMBER," AND THUS IT MUST BE DISCLOSED AT LEAST AS A
"CONCURRING (OR) DISSENTING OPINION."  5 U.S.C. SEC. 552 (A)(2)(A).  ON
APPEAL, THE COURT OF APPEALS AFFIRMED THE "FINDINGS OF FACT" AND
"CONCLUSIONS" REACHED BY THE DISTRICT COURT AND FOUND TWO ADDITIONAL
GROUNDS SUPPORTIVE OF THE LOWER COURTHS JUDGMENT AS TO THE REGIONAL
BOARD REPORTS.  THE COURT HELD THAT, EVEN IF THE REGIONAL BOARD REPORTS
RECOMMENDING A CLEARANCE SUBSEQUENTLY APPROVED BY THE BOARD /19/ WERE
NOT "FINAL OPINIONS" OF THE BOARD, THEY WERE DISCLOSABLE AS FINAL
OPINIONS OF THE REGIONAL BOARD:  THE REGIONAL BOARD ITSELF WAS TO BE
CONSIDERED AN "AGENCY" FOR PURPOSES OF THE ACT, AND THE REPORTS WERE
CERTAINLY ITS "FINAL OPINIONS" AND, AS SUCH, THEY WERE DISCLOSABLE
UNDER THE EXPRESS PROVISIONS OF 5 U.S.C. SEC. 552(A)(2)(A) AND
THEREFORE OUTSIDE THE SCOPE OF EXEMPTION 5.  IN CONCLUDING THAT THE
REGIONAL BOARDS ARE AGENCIES, THE COURT RELIED IN PART ON THE POWER OF
THE REGIONAL BOARDS FINALLY TO DISPOSE OF CERTAIN CLASS B CASES.  /20/
IN CONCLUDING THAT ITS DECISIONS WERE "FINAL," NOTWITHSTANDING
INEVITABLE BOARD REVIES, IT ANALOGIZED THE POWER OF THE REGIONAL BOARD
IN CLASS A CASES TO THE POWER OF A UNITED STATES DISTRICT COURT:  THE
FORMER'S DECISIONS BEING REVIEWABLE BY THE BOARD AND THE LATTER'S BY A
UNITED STATES COURT OF APPEALS.  THE FACT THAT THE REGIONAL BOARD'S
DECISIONS WERE SUBJECT TO REVIEW DID NOT OBVIATE THE FACT, ANY MORE
THAN IT DOES IN THE CASE OF A UNITED STATES DISTRICT COURT, THAT ITS
DECISION ARE "FINAL" 157 U.S. APP. D.C. 121, 128, 482 F.2D 710, 717
(1973), AND THAT ITS REPORT LEADING TO A CLEARANCE WAS PERFORCE A
"FINAL OPINION" OF AN "AGENCY" SUBJECT TO DISCLOSURE UNDER THE ACT. 
THE COURT OF APPEALS ADDITIONALLY HELD THAT THE REGIONAL BOARD REPORTS
WERE, IN ANY EVENT, "IDENTIFICABLE RECORDS," 5 U.S.C. SEC. 552(A)(3),
WHICH ARE DISCLOSABLE, UNLESS EXEMPT, AND THAT THESE REPORTS WERE NOT
WITHIN THE PURVIEW OF EXEMPTION 5 OF THE ACT, BECAUSE THEY "ARE NOT
SOLELY PART OF THE CONSULTATIVE AND DELIBERATIVE PROCESS, BUT RATHER
REFLECT ACTUAL DECISIONS COMMUNICATED OUTSIDE THE AGENCY."  15( U.S.
APP D.C., AT 129, 482 F.2D AT 718.  SEE NLRB V. SEARS, ROEBUCK & CO.,
ANTE, P. 132. 

THE BOARD BROUGHT THE CASE TO THIS COURT AND WE GRANTED CERTIORARI,
417 U.S. 907 (1974), SETTING THE CASE FOR ARGUMENT WITH NLFB V. SEARS,
ROEBUCK & CO., ANTE, P. 132, IN ORDEE TO RESOLVE THE IMPORTANT
QUESTIONS PRESENTED PARTICULARLY WITH RESPECT TO THE PROPER
CONSTRUCTION AND INTERPRETATION OF EXEMPTION 5 OF THE ACT.  FOR REASONS
SET FORTH HEREAFTER, WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

        III 

STRICTLY SPEAKING, THE ISSUE IN THIS CASE IS WHETHER THE DIVISION
REPORTS AND THE REGIONAL BOARD REPORTS FALL WITHIN EXEMPTION 5,
PERTAINING TO "INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS . . . WHICH
WOULD NOT BE AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY IN
LITIGATION WITH THE AGENCY."  5 U.S.C. SEC. 552(B)(5).  /21/ AS WE HOLD
TODAY IN THE COMPANION CASE OF NLRB V. SEARS, ROEBUCK, & CO., ANTE, AT
149, EXEMPTION 5 INCORPORATES THE PRIVILEGES WHICH THE GOVERNMENT
ENJOYS UNDER THE RELEVANT STATUTORY AND CASE LAW IN THE PRETRIAL
DISCOVERY CONTEXT; AND BOTH EXEMPTION 5 AND THE CASE LAW WHICH IT
INCORPORATES DISTINGUISH BETWEEN PREDECISIONAL MEMORANDA PREPARED IN
ORDER TO ASSIST AN AGENCY DECISIONMAKER IN ARRIVING AT HIS DECISION,
WHICH ARE IXEMPT FROM DISCLOSURE, AND POSTDECISIONAL MEMORANDA SETTING
FORTH THE REASONS FOR AN AGENCY DECISION ALREADY MADE, WHICH ARE NOT. 
BECAUSE ONLY THE FULL BOARD HAS THE POWER BY LAW TO MAKE THE DECISION
WHETHER EXCESSIVE PROFITS EXIST; BECAUSE BOTH TYPES OF REPORTS INVOLVED
IN THIS CASE ARE PREPARED PRIOR TO THAT DECISION AND ARE USED BY THE
BOARD IN ITS DELIBERATIONS; AND BECAUSE THE EVIDENCE UTTERLY FAILS TO
SUPPORT THE CONCLUSION THAT THE REASONING IN THE REPORTS IS ADOPTED BY
THE BOARD AS ITS REASONING, EVEN WHEN IT AGREES WITH THE CONCLUSION OF
A REPORT, WE CONCLUDE THAT THE REPORTS ARE NOT FINAL OPINIONS AND DO
FALL WITHIN EXEMPTION 5. 

 A. REGIONAL BOARD REPORTS 

IT IS UNDISPUTED THAT THE REGIONAL BOARDS HAD NO LEGAL AUTHORITY TO
DECIDE WHETHER A CONTRACTOR HAD RECEIVED "EXCESSIVE PROFITS" IN CLASS A
CASES.  /22/ IN SUCH CASES, THE REGIONAL BOARDS COULD INVESTIGATE AND
RECOMMEND, BUT ONLY THE BOARD COULD DECIDE.  32 CFR SEC. 1472.3 -
1472.4.  THE REPORTS WERE PREPARED LONG BEFORE THE BOARD REPORT AS A
BASIS FOR DISCUSSION AND, EVEN WHEN IT AGREED WITH THE REGIONAL BOARDHS
CONCLUSION, IT OFTEN DID SO AS A RESULT OF AN ANALYSIS OF THE FLEXIBLE
STATUTORY FACTORS COMPLETELY DIFFERENT FROM THAT CONTAINED IN THE
REGIONAL BOARD REPORT.  CHAIRMAN HARTWIG TESTIFIED: 

"(WHEN RECOMMENDATION CLARANCE OF THE REGIONAL BOARD COMES UP ON THE
BOARD AGENDA, THE BOARD SIMPLY APPROVES OR DISAPPROVES THE CLEARANCE. 
IT DOES NOT ADOPT ANY OF THE MEMORANDA THAT ARE BEFORE IT.  IT DOES NOT
RATIFY OR ADOPT ANY OF THESE STAFF MEMORANDA.  IT SIMPLY, IN THE
EXERCISE OF ITS JUDGMENT, SAYS IT IS A CLEARANCE OR IT ISN'T A
CLEARANCE.  AND THERE IS NO BOARD-ADOPTED DOCUMENT WHICH YOU COULD CALL
AN OPINION."  APP.  79. 

THE REGIONAL BOARD REPORTS ARE THUS PRECISELY THE KIND OF
PREDECISIONAL DELIBERATIVE ADVICE AND RECOMMENDATIONS CONTEMPLATED BY
EXEMPTION 5 WHICH MUST REMAIN UNINHIBITED AND THUS UNDISCLOSED, IN
ORDER TO SUPPLY MAXIMUM ASSISTANCE TO THE BOARD IN REACHING ITS
DECISION.  MOREOVER, ABSENT INDICATION THAT ITS REASONING HAS BEEN
ADOPTED, THERE IS LITTLE PUBLIC INTEREST IN DISCLOSURE OF A REPORT.  "
THE PUBLIC IS ONLY MARGINALLY CONCERNED WITH REASONS SUPPORTING A
(DECISION) WHICH AN AGENCY HAS REJECTED, OR WITH REASON WHICH MIGHT
HAVE SUPPLIED, BUT DID NOT SUPPLY, THE BASIS FOR A (DECISION) WHICH WAS
ACTUALLY ADOPTED ON A DIFFERENT GROUND."  NLRB V. SEARS, ROEBUCK & CO.,
ANTE, AT 152.  INDEED, RELEASE OF THE REGIONAL BOARD'S REPORTS ON THE
THEORY THAT THEY EXPRESS THE REASONS FOR THE BOARDHS DECISION WOULD, IN
THOSE CASES IN WHICH THE BOARD HAD OTHER REASONS FOR ITS DECISION, BE
AFRIRMATIVELY MISLEADING.  STERLING DRUG INC. V. FTC, 146 U.S. APP.
D.C. 237, 246 - 247, 450 F.2D 698, 707 - 708 (1971); INTERNATIONAL
PAPER CO. V. FPC, 438 F.2D 1349, 1358 (CA 2), CERT. DENIED, 404 U.S.
827 (1971).  ACCORDINGLY, THESE REPORTS ARE NOT "FINAL OPINIONS," THEY
DO FALL WITHIN THE PROTECTION OF EXEMPTION 5, AND THEY ARE NOT SUBJECT
TO COMPULSORY DISCLOSURE PURSUANT TO THE ACT. 

THE COURT OF APPEALS' ATTEMPT TO INPUTE DECISIONAL AUTHORITY TO
REGIONAL BOARDS BY ANALOGIZING THEIR FINAL RECOMMENDATIONS TO THE FINAL
DECISIONS OF UNITED STATES DISTRICT COURTS MUST FAIL.  THE DECISION OF
A UNITED STATES DISTRICT COURT, LIKE THE DECISION OF THE GENERAL
COUNSEL OF THE NLRB DISCUSSED IN NLRB V. SEARS, ROEBUCK & CO., ANTE, AT
158 - 159, N. 25, HAS REAL OPERATIVE EFFECT INDEPENDENT OF "REVIEW" BY
A COURT OF APPEALS:  ABSENT APPEAL BY ONE OF THE PARTIES, THE DECISION
HAS THE FORCE OF LAW; AND, EVEN IF AN APPEAL IS FILED, THE COURT OF
APPEALS WILL BE BOUND, WITHIN LIMITS, BY CERTAIN OF THE DISTRICT
COURT'S CONCLUSIONS.  /23/  THE RECOMMENDATION OF A REGIONAL BOARD, BY
CONTRAST, HAS NOTOPERATIVE EFEECT INDEPENDENT OF THE REVIEW:
CONSIDERATION OF THE CASE BY THE BOARD IS NOT DEPENDENT ON THE DECISION
BY A PARTY TO "APPEAL"--SUCH CONSIDERATION IS AN INEVITABLE EVENT
WITHOUT WHICH THERE IS NO AGENCY DECISION:  AND THE RECOMMENDATION OF
THE REGIONAL BOARD CARRIES NO LEGAL WEIGHT WHATEVER BEFORE THE BOARD-
REVIEW BY THE LATTER IS, AS THE COURT OF APPEALS CONCEDED, DE NOVO. 
INDEED, "REVIEW" IS AN ENTIRELY INAPPROPRIATE WORD TO DESCRIBE THE
PROCESS BY WHICH THE BOARD DECIDES WHETHER TO ISSUE A CLEARANCE
FOLLOWING A RECOMMENDATION TO THAT EFFECT BY THE REGIONAL BOARD.  THE
LATTERHS RECOMMENDATION IS FUNCTIONALLY INDISTINGUISHABLE FROM THE
RECOMMENDATION OF ANY AGENCY STAFF MEMBER WHOSE JUDGMENT HAS EARNED THE
RESPECT OF A DICISIONMAKER.  THERE IS SIMPLY NO SENSE IN WHICH REGIONAL
BOARDS HAVE THE POWER TO MAKE "FINAL DISPOSITIONS" AND THUS NO SENSE IN
WHICH THE EXPLANATIONS OF THEIR RECOMMENDATIONS CAN BE CHARACTERIZED AS
"FINAL OPINIONS."  /24/ SEE N.RB V. SEARS, ROEBUCK P CO., ANTE, AT 158
159. 

IN CONCLUDING THAT THE REGIONAL BOARD REPORTS ARE WITHIN THE SCOPE
OF EXEMPTION 5, IT IS UNNECESSARY TO DECIDE WHETHER, AS RESPONDENT
STRENOUSLY ARGUES AND THE COURT OF APPEALS CONCLUDED, THE REGIONAL
BOARDS ARE THEMSELVES "AGENCIES" FOR THE PURPOSES OF THE ACT. 
RESPONDENT AND THE COURT BELOW PROCEED ON THE PREMISE THAT THE FINAL
WRITTEN PRODUCT OF AN "AGENCY'S" DELIBERATIONS MAY NEVER FALL WITHIN
EXEMPTION 5, AND REASON THAT SINCE THE REGIONAL BOARD REPORT IS THE
FINAL PRODUCT OF THE REGIONAL BOARD, IT MUST THEREFORE BE DISCLOSABLE
IF THE REGIONAL BOARD IS A SEPARATE AGENCY.  /25/ THE PREMISE IS
FAULTY, HOWEVER, OVERLOOKING AS IT DOES THE FACT THAT EXEMPTION 5 DOES
NOT DISTINGUISH BETWEEN INTER-AGENCY AND INTRA-AGENCY MEMORANDA.  BY
INCLUDING INTER-AGENCY MEMORANDA IN EXEMPTION 5, CONGRESS PLAINLY
INTENDED TO PERMIT ONE AGENCY POSSESSING DECISIONAL AUTHORITY TO OBAAIN
WRITTEN RECOMMENDATIONS AND ADVICE FROM A SEPARATE AGENCY NOT
POSSESSING SUCH DECISIONAL AUTHORITY WITHOUT REQUIRING THAT THE ADVICE
BE ANY MORE DISCLOSABLE THAN SIMILAR ADVICE RECEIVED FROM WITHIN THE
AGENCY.  THUS, IF THE REGIONAL BOARDS ARE AGENCIES FOR CLASS A
PURPOSES, THEIR FINAL RECOMMENDATIONS ARE INTER-AGENCY MEMORANDA; AND,
IF THEY ARE NOT AGENCIES SEPARATE FROM THE BOARD, THEIR RECOMMENDATINOS
ARE INTRA-AGENCY MEMORANDA.  IN EITHER EVENT, THE REGIONAL BOARDS'
TOTAL LACK OF DECISIONAL AUTHORITY BRINGS THEIR REPORTS WITHIN
EXEMPTION 5 AND PREVENTS THEM FROM BEING "FINAL OPINIONS." 

        B. DIVISION REPORTS 

IT IS EQUALLY CLEAR THAT A DIVISION OF THE BOARD HAS NO LEGAL
AUTHORITY TO DECIDE.  ONCE AGAIN, IT MAY ANALYZE AND RECOMMEND, BUT THE
POWER TO DECIDE REMAINS WITH THE FULL BOARD.  THE EVIDENCE IS
UNCONTRADICTED THAT THE DIVISION REPORTS WERE PREPARED BEFORE THE BOARD
REACHED ITS DECISION, WERE USED BY THE FULL BOARD AS A BASIS FOR
DISCUSSION, AND, AS THE CHAIRMAN TESTIFIED, WERE "PREPARED FOR AND
DESIGNED TO ASSIST THE MEMBERS OF THE BOARD IN THIER DELIBERATIONS";
NOR IS THE DISCUSSION LIMITED TO THE MATERIAL AND ANALYSIS CONTAINED IN
THE DIVISION REPORT.  FOLLOWING THE DISCUSSION, ANY BOARD MEMBER MAY
DISAGREE WITH THE REPORTHS CONCLUSION OR AGREE WITH IT FOR REASONS
OTHER THAN THOSE CONTAINED IN THE REPORT.  INDEED, AS CHAIRMAN HARTWIG
TESTIFIED, IT IS LIKELY THAT THIS WILL OCCUR BECAUSE OF THE HIGHLY
JUDGMENTAL NATURE OF THE BOARDHS DECISIONS GIVEN THE NUMBER AND
GENERALITY OF THE SIX STATUTORY CRITERIA.  IN ANY EVENT, THE REASONING
OF THE DIVISION REPORT IS NEVER ADOPTED--THOUGH ITS CONCLUSION MAY BE--
AND NO EFFORT IS MADE TO REACH AGREEMENT ON ANYTHING BUT THE RESULT. 

IT IS TRUE THAT THOSE WHO PARTICIPATE IN THE WRITING OF THE DIVISION
REPORT ARE AMONG THOSE WHO PARTICIPATE IN THE BOARD'S DECISION, AND
THAT, HUMAN NATURE BEING WHAT IT IS, THEY MAY NOT CHANGE THEIR MINDS
AFTER DISCUSSION BY THE FULL BOARD.  THIS CREATES A GREATER LIKELIHOOD
THAT THE BOARD'S DECISION WILL BE IN ACCORDANCE WITH THE DIVISION
REPORT THAN IS THE CASE WITH RESPECT TO A REGIONAL BOARD REPORT AND
THAT, WHERE THE BOARD'D DECISION IS DIFFERENT, THE DIVISION REPORT WILL
REFLECT THE FINAL VIEWS OF AT LEAST ONE OF THE BOARD'S MEMBERS.  SEE
NLRB V. SEARS, ROEBUCK & CO., ANTE, AT 158 - 159, N. 25.  HOWEVER, THIS
IS NOT NECESSARILY SO.  THE BOARD OBVIOUSLY CONSIDERS ITS DISCUSSION
FOLLOWING THE CREATION OF THE DIVISION REPORT TO BE OF CRUCIAL
IMPORTANCE TO ITS DECISION FOR, NOTWITHSTANDING THE FACT THAT A
DIVISION IS MADE UP OF A MAJORITY OF THE BOARD, IT HAS BEEN DELEGATED
NO DECISIONAL AUTHORITY.  THE MEMBER OF THE BOARD WHO WROTE THE REPORT
MAY CHANGE HIS MIND AS A RESULT OF THE DISCUSSION OR, CONSISTENT WITH
THE PHILOSOPHY OF EXEMPTION 5, HE MAY HAVE INCLUDED THOUGHTS IN THE
REPORT WITH WHICH HE WAS NOT IN AGREEMENT AT THE TIME HE WROTE IT.  THE
POINT IS THAT THE REPORT IS CREATED FOR THE PURPOSE OF DISCUSSION AND
WE ARE UNWILLING TO DEPRIVE THE BOARD OF A THOROUGHLY UNINHIBITED
VERSION OF THIS VALUABLE DELIBERATIVE TOOL BY MAKING DIVISION REPORTS
PUBLIC ON THE UNSUPPORTED ASSUMPTION THAT THEY ALWAYS DISCLOSE THE
FINAL VIEWS OF AT LEAST SOME MEMBERS OF THE BOARD.  /26/ 

THE EFFECT OF THIS DECISION IS THAT, IN THOSE CASES IN WHICH
STATEMENTS AND SUMMARIES WERE NOT ISSUED, THE PUBLIC WILL BE LARGELY
UNINFORMED AS TO THE BASIS FOR DECISIONS BY THE RENEGOTIATION BOARD. 
INDEED, THE DECISIONS OF BOTH COURTS BELOW--CONCEDING AS THEY BOTH DID
THE ABSENCE OF DECISIONAL AUTHORITY IN EITHER THE REGIONAL BOARDS OR
DIVISIONS OF THE STATUTORY BOARD--APPEAR TO HAVE RESTED IN THE FINAL
ANALYSIS ON THE NOTION THAT THE RENEGOTIATION BOARD HAS AN AFFIRMATIVE
OBLIGATION UNDER THE ACT TO MAKE PUBLIC THE REASONS FOR ITS DECISIONS;
AND THAT IT MUST DISCLOSE ITS OPINION OR THE NEAREST THING TO AN
OPINION IN EVERY CASE.  HOWEVER, CONGRESS EXPLICITLY EXEMPTED THE
RENEGOTIATION BOARD FROM ALL PROVISIONS OF THE ADMINISTRATIVE PROCEDURE
ACT EXCEPT FOR THE PUBLIC INFORMATION SECTION.  50 U.S.C. APP. SEC.
1221.  THUS THE OPINION-WRITING SECTION OF THE APA, 5 U.S.C. SEC. 557-
, WHICH ITSELF APPLIES ONLY TO "ADJUDICATION REQUIRED BY STATUTE TO BE
DETERMINED ON THE RECORD AFTER OPPORTUNITY FOR AN AGENCY HEARING" AND
EVEN THEN ONLY IF THE AGENCY DECISION IS NOT SUBJECT TO DE NOVO COURT
REVIEW, 5 U.S.C. SEC. 554--IS INAPPLICABLE TO BOARD DECISIONS.  THE
FREEDOM OF INFORMATION ACT IMPOSES NO INDEPENDENT OBLIGATION ON
AGENCIES TO WRITE OPINIONS.  IT SIMPLY REQUIRES THEM TO DISCLOSE THE
OPINIONS WHICH THEY DO WRITE.  NLRB V. SEARS, REOBUCK & CO., ANTE, P.
132.  IF THE PUBLIC INTEREST SUFFERS BY REASON OF THE FAILURE OF THE
BOARD TO EXPLAIN SOME OF ITS DECISIONS, THE REMEDY IS FOR CONGRESS TO
REQUIRE IT TO DO SO.  IT IS NOT FOR US TO REQUIRE DISCLOSURE OF
DOCUMENTS, UNDER THE PURPORTED AUTHORITY OF THE ACT, WHICH ARE NOT
FINAL OPINIONS, WHICH DO NOT ACCURATELY SET FORTH THE REASONS FOR THE
BOARD'S DECISIONS, AND THE DISCLOSURE OF WHICH WOULD IMPINGE ON THE
BOARD'S PREDECISIONAL PROCESSES. 

THE JUDGMENT OF THE COURT OF APPEALS IS

                     REVERSED. 

/1/ SEE GENERALLY S. REP. NO. 93 - 927, PP. 1 - 2 (1974); STAFF
REVIEW OF RECOMMENDATIONS MADE ON THE RENEGOTIATION PROCESS:  A
PRELIMINARY REPORT 3 - 5 (1974) (PREPARED FOR THE USE OF THE HOUSE
COMMITTEE ON WAYS AND MEANS AND THE SENATE COMMITTEE ON FINANCE BY THE
STAFF OF THE JOINT COMMITTEE ON INTERNAL REVENUE TAXATION (HEREINAFTER
STAFF REVIEW)). 

/2/ TITLE 50 U.S.C. APP. SEC. 1213(E) READS AS FOLLOWS: 

"(E) THE TERM 'EXCESSIVE PROFITS' MEANS THE PORTION OF THE PROFITS
DERIVED FROM CONTRACTS WITH THE DEPARTMENTS AND SUBCONTRACTS WHICH IS
DETERMINED IN ACCORDANCE WITH THIS TITLE (SEC. 1211 TO 1224 OF THIS
APPENDIX) TO BE EXCESSIVE.  IN DETERIMINING EXCESSIVE PROFITS FAVORABLE
RECOGNITION MUST BE GIVEN TO THE EFFICIENCY OF THE CONTRACTOR OR
SUBCONTRACTOR, WITH PARTICULAR REGARD TO ATTAINMENT OF QUANTITY AND
QUALITY PRODUCTION, RECUCTION OF COSTS AND ECONOMY IN THE USE OF
MATERIALS, FACILITIES, AND MANPOWER; AND IN ADDITION, THERE SHALL BE
TAKEN INTO CONSIDERATION THE FOLLOWING FACTORS: 

"(1) REASONABLENESS OF COSTS AND PROFITS, WITH PARTICULAR REGARD TO
VOLUME OF PRODUCTION, NORMAL EARNINGS, AND COMPARISON OF WAR AND
PEACETIME PRODUCTS; 

"(2) THE NET WORTH, WITH PARTICULAR REGARD TO THE AMOUNT AND SOURCE
OF PUBLIC AND PRIVATE CAPITAL EMPLOYED; 

"(3) EXTENT OF RISK ASSUMED, INCLUDING THE RISK INCIDENT TO
REASONABLE PRICING POLICIES; 

"(4) NATURE AND EXTENT OF CONTRIBUTION TO THE DEFENSE EFFORT,
INCLUDING INVENTIVE AND DEVELOPMENTAL CONTRIBUTION AND COOPERATION WITH
THE GOVERNMENT AND OTHER CONTRACTORS IN SUPPLYING TECHNICAL
ASSISTANCE; 

"(5) CHARACTER OF BUSINESS, INCLUDING SOURCE AND NATURE OF
MATERIALS, COMPLEXITY OF MANUFACTURING TECHNIQUE, CHARACTER AND EXTENT
OF SUBCONTRACTING, AND RATE OF TURN-OVER; 

"(6) SUCH OTHER FACTORS THE CONSIDERATION OF WHICH THE PUBLIC
INTEREST AND FAIR AND EQUITABLE DEALING MAY REQUIRE, WHICH FACTORS
SHALL BE PUBLISHED IN THE REGULATIONS OF THE BOARD FROM TIME TO TIME AS
ADOPTED."  THESE STATUTORY "FACTORS" WERE DEVELOPED BY THE WAR
CONTRACTS PRICE ADJUSTMENT BOARD DURING WORLD WAR II, WER INCORPORATED
BY CONGRESS INTO THE ORIGINAL RENEGOTIATION AND REVENUE ACTS OF THAT
ERA, WERE CONTINUED IN THE RENEGOTIATION ACT OF 1951, AND HAVE
UNDERGONE LITTLE CHANGE SINCE THEIR INITIAL DEVELOPMENT.  STAFF REVIEW,
SUPRA, N. 1, AT 23 & NN. 34 - 36. 

/3/ PRIOR TO JULY 1971, DE NOVO REVIEW WAS BY THE TAX COURT.  SEE 85
STAT. 98. 

/4/ THROUGH JUNE 30, 1970, 3,524 OUT OF 4,006 CASES NOT RESULTING IN
CLEARANCES TERMINATED BY AGREEMENT.  OF THE REMAINING 482 CASES, THE
BOARD'S UNILATERAL ORDERS WERE CHALLENGED IN COURT IN 206 CASES. 

/5/ THE DESCRIPTION OF THE RENEGOTIATION PROCESS IS OF THE PROCESS
EXISTING BETWEEN 1962 THROUGH 1965--THE PERIOD IN WHICH THE DOCUMENTS
RELEVANT TO THIS CASE WERE GENERATED WITHIN THE BOARD--NOTWITHSTANDING
CHANGES MADE SINCE.  UNLESS OTHERWISE INDICATED, ALL CITATIONS TO THE
CODE OF FEDERAL REGULATIONS THROUGHOUT THIS OPINION ARE TO THE
RENEGOTIATION BOARD'S REGULATIONS IN EFFECT DURING THIS PERIOD (I.E.,
THE CODE AS REVISED JANUARY 1, 1967). 

/6/ THE REFERENCE IS NORMALLY MADE ON THE BASIS OF GEOGRAPHICAL
CONSIDERATIONS, 32 CFR SEC. 1471.2(A).  THESE REGIONAL BOARDS WERE
ESTABLISHED IN 1952 BY REGULATION, 32 CFR SEC. 1451.32, PURSUANT TO
STATUTORY AUTHORIZATION, 50 U.S.C. APP. SEC. 1217(D).  UNLIKE MEMBERS
OF THE BOARD, WHO ARE APPOINTED TO THE BOARD BY THE PRESIDENT, REGIONAL
BOARD MEMBERS ARE CIVIL SERVANTS. 

/7/ UNDER CERTAIN CIRCUMSTANCES, CASES MAY BE REDESIGNATED AFTER
THEIR INITIAL DESIGNATION.  32 CFR SEC. 1471.2(F). 

/8/ DURING THE YEARS 1962 - 1965, A RENEGOTIATOR MIGHT BE A STAFF
MEMBER EMPLOYED BY THE REGIONAL BOARD OR A MEMBER OF THE REGIONAL BOARD
ITSELF.  UNDER THE BOARD'S CURRENT REGULATIONS, A MEMBER OF THE
REGIONAL BOARD WHO ACTS AS A RENEGOTIATOR IN A SPECIFIC CASE IS
THEREAFTER BARRED FROM PARTICIPATION IN THE CASE AS A MEMBER OF THE
REGIONAL BOARD.  32 CFR SEC. 1472.3(D) (1974).  THERE WAS NO
COMPARRABLE REGULATION IN EFFECT DURING THE PERIOD RELEVANT TO THIS
CASE. 

/9/ 32 CFR SEC. 1472.3(D).  UNDER 1972 AMENDMENTS TO THE
REGULATIONS, THE REPORT OF RENEGOTIATION WAS DISCONTINUED AND WAS
REPLACED BY OTHER REPORTS NOT RELEVANT TO THIS CASE.  SEE GENERALLY 32
CFR SEC. 1472.3(E)-(G), AND (I) (1974). 

/10/ UNDER CURRENT REGULATIONS, THE REGIONAL BOARD NO LONGER MAKES
THIS "TENTATIVE RECOMMENDATION" IN CLASS A CASES, 32 CFR SEC. 1472.3
(K) AND (L) (1974). 

/11/ THIS DOCUMENT WAS MADE AVAILABLE TO THE GENERAL PUBLIC BY
REGULATION ON FEBRUARY 24, 1971.  32 FED REG. 3808, 32 CFR SEC. 1480.5
(A) (1972).  WHEN THE BOARD FIRST MADE THE SUMMARIES OF FACTS AND
REASONS AVAILABLE TO THE PUBLIC BY REGULATION, IT SPECIFICALLY STATED
THAT ITS ACTION WAS TAKEN "(WITHOUT REGARD TO THE PROVISIONS OF 5
U.S.C. (SEC.) 552(A)(2) . . . ."  IBID.  SUBSEQUENT TO THE EFFECTIVE
DATE OF THAT REGULATION THE DISTRICT COURT IN THIS CASE,
NOTWITHSTANDING THE FACT THAT THE CONTROVERSY OVER RESPONDENT'S ACCESS
TO THE SUMMARIES OF FACTS AND REASONS SOUGHT IN THIS ACTION HAD
APPARENTLY BEEN MOOTED, HELD THAT THESE DOCUMENTS MUST BE MADE
AVAILABLE UNDER THE FOIA AS "FINAL OPINIONS" OF EITHER THE BOARD OR THE
REGIONAL BOARD, EXCEPT IN CERTAIN CIRCUMSTANCES.  325 F. SUPP. 1146,
1151 - 1152 (DC 1971).  THE BOARD HAS SINCE AMEMNDED ITS REGULATIONS,
INDICATING THAT ITS OWN INTERPRETATION OF THE ACT AS TO THESE DOCUMENTS
IS NOW CONSISTENT WITH THAT OF THE DISTRICT COURT.  32 CFR SEC.
1480.5(A) (1974).  UNDER CURRENT BOARD REGULATIONS, THE CONTRACTOR
AUTOMATICALLY RECEIVES A DOCUMENT ENTITLED " PROPOSED OPINION," IF HE
HAS NOT INDICATED A WILLINGNESS TO ENTER INTO AN AGREEMENT WITH THE
BOARD.  32 CFR SEC. 1477.3(A) (1974). 

/12/ THE " SUMMARIES" AND " STATEMENTS" WERE SIMILAR IN BOTH FORMAT
AND CONTENT.  APP. 35 - 41; 32 CFR SEC. 1477.4.  UNDER CURRENT BOARD
REGULATIONS, THE REGIONAL BORAD NOW ISSUES TO THE CONTRACTOR A "
PROPOSED OPINION," IN LIEU OF THE "SUMMARY OF FACTS AND REASONS"
DISCUSSED ABOVE, AND FURNISHES TO THE CONTRACTOR A " REGIONAL BOARD
OPINION" WHEN THE REGIONAL BOARD'S RECOMMENDATION IS FORWARDED TO THE
BOARD.  32 CFR SEC. 1477.3(A) AND (C) (1974).  THE BOARD ALSO ISSUES A
" FINAL OPINION" IN PLACE OF THE STATEMENT AT THE SAME TIME AS IT
ENTERS A UNILATERAL ORDER.  32 CFR SEC.  ALL OF THESE DOCUMENTS ARE
AVAILABLE TO THE PUBLIC.  32 CFR SEC. 1480.5 (A) (1974). 

/13/ A DISSATISFIED CONTRACTOR HAS THE RITHT AT THIS POINT TO BRING
AN ACTION IN THE TAX COURT, WHICH HAD JURISDICTION TO DETERMINE DE NOVO
WHETHER EXCESSIVE PROFITS HAD BEEN REALIZED (SEE N. 3, SUPRA);
JURISDICTION OF THESE CASES HAS SUBSEQUENTLY BEEN TRANSFEERED TO THE
COURT OF CLAIMS.  SEE RENEGOTIATION BOARD V. BANNERCRAFT CLOTHING CO.,
15 U.S. 1, 15 AND N. 14 (1974). 

/14/ BY REFERENCE IN ITS COMPLAINT TO CORRESPONDENCE BETWEEN IT AND
THE BOARD OF APRIL 26, 1968, RESPONDENT REQUESTED ACCESS TO "FINAL
OPINIONS, DETERMINATIONS, UNILATERAL ORDERS, AGREEMENTS, CLEARANCE
NOTICES AND LETTERS NOT TO PROCEED ISSUED IN THE ADJUDICATION OF
RENEGOTIATION CASES" AND "WRITTEN SUMMARIES OF THE FACTS AND REASONS
UPON WHICH SUCH FINAL OPINIONS, DETERMINATIONS, UNILATERAL ORDERS AND
AGREEMENTS HAVE BEEN REACHED."  NOTHING IN THE COMPLAINT OR THE LETTER
SUGGESTS THAT, AT THAT TIME, RESPONDENT SOUGHT THE REGIONAL BOARD
REPORT, OR THE DIVISION REPORT, IN ANY OF THESE RENEGOTIATION CASES. 

/15/ TITLE 32 CFR SEC. 1480.8 READS IN PERTINENT PART: 

" EXCEPT AS AUTHORIZED . . . OPINIONS AND ORDERS WILL NOT BE
PUBLISHED OR MADE AVAILABLE TO THE PUBLIC . . . INASMUCH AS THEY ARE
REGARDED AS CONFIDENTIAL . . . BY REASON OF THE CONFIDENTIAL DATA
FURNISHED BY CONTRACTORS . . . . FOR THE PURPOSES OF THIS PARAGRAPH,
THE TERM 'OPINION' INCLUDES A STATEMENT FURNISHED PURSUANT TO (32 CFR
PART 1477) AND THE TERM 'ORDER' INCLUDES AN AGREEMENT TO ELIMINATE
EXCESSIVE PROFITS, AS WELL AS A UNILATERAL DETERMINATION.  OPINIONS AND
ORDERS ARE NOT CITED AS PRECEDENTS IN ANY RENEGOTIATION PROCEEDINGS." 
PART 1477, AS WRITTEN DURING THE PERIOD 1962 - 1967, INCLUDED ONLY
STATEMENTS AND SUMMARIES. 

/16/ TITLE 5 U.S.C. SEC. 552(B)(4) EXEMPTS FROM DISCLOSURE "TRADE
SECRETS AND COMMERCIAL OR FINANCIAL INFORMATION OBTAINED FROM A PERSON
AND PRIVILEGED OR CONFIDENTIAL MATTERS." 

/17/ 138 U.S. APP. D.C., AT 149, 425 F.2D, AT 580, QUOTING FROM 5
U.S.C. SEC. 552(A)(2)(A). 

/18/ A MORE DETAILED DESCRIPTION OF THE DOCUMENTS SOUGHT IS SET OUT
IN THE OPINION WRITTEN BY THE DISTRICT COURT AFTER THE INITIAL REMAND
FROM THE COURT OF APPEALS, 325 F. SUPP., AT 1151. 

/19/ THE DISTRICT COURT HAD HELD THE REPORTS OF REGIONAL BOARD TO BE
DISCLOSABLE ONLY IN INSTANCES WHERE THAT BOARD MADE A FINAL
RECOMMENDATION FOR A CLEARANCE AND THE BOARD CONCURRED IN THE
RECOMMENDATION.  ID., AT 1154.  THE COURT OF APPEALS DID NOT PURPORT TO
EXTENT THE HOLDING OF THE DISTRICT COURT TO REGIONAL BOARD REPORTS IN
OTHER CONTEXTS. 

/20/ 157 U.S. APP. D.C. 121, 126 - 127 AND NN. 20 AND 23, 482 F.2D
710, 715 - 716 AND NN. 20 AND 23 (1973). 

/21/ GRUMMAN CLAIMS THAT THE DOCUMENTS ARE "FINAL OPINIONS"
EXPRESSLY MADE DISCLOSABLE, PURSUANT TO 5 U.S.C. SEC. 552(A)(2)(A). 
HOWEVER, AS WE NOTED IN THE COMPANION CASE OF NLRB V. SEARS, REOBUCK &
CO., ANTE, AT 147 - 148, A CONCLUSION THAT THE DOCUMENTS ARE WITHIN
EXEMPTION 5 WOULD BE DISPOSITIVE IN THE GOVERNMENT'S FAVOR, SINCE THE
ACT "DOES NOT APPLY" TO SUCH DOCUMENTS; AND A CONTRARY CONCLUSION WOULD
BE DISPOSITIVE AGAINST THE GOVERNMENT, SINCE IT CONCEDES THAT THE
DOCUMENTS ARE "IDENTIFIABLE RECORDS" OTHERWISE DISCLOSABLE PURSUANT TO
5 U.S.C. SEC. 552(A)(3).  THUS, STRICTLY SPEAKING, THE QUESTION WHETHER
THE DOCUMENTS ARE "FINAL OPINIONS" IS RELEVANT ONLY IN DECIDING WHETHER
EXEMPTION 5 APPLIES TO THEM AND IS IMPORTANT ONLY BECAUSE WE HAVE
CONSTRUED EXEMPTION 5 IN NLRB V. SEARS, ROEBUCE & CO., ANTE, AT 153 -
154, NOT TO INCLUDE "FINAL OPINIONS" WITHIN THE MEANING OF 5 U.S.C.
SEC. 552(A)(2)(A). 

/22/ WE DECLINE TO CONSIDER WHETHER THIS CASE WOULD BE DIFFERENT IF
THE REGIONAL BOARDS HAD DE FACTO DECISIONAL AUTHORITY--I.E., IF,
INDTEAD OF MAKING UP ITS OWN MIND IN EACH CASE, THE BOARD "REVIEWED"
THE REGIONAL BOARD'S RECOMMENDATION UNDER A CLEARLY ERRONEOUS OR SOME
OTHER DEFERENTIAL STANDARD; OR IF THE BOARD FAILED EVEN TO REVIEW THE
VAST BULK OF THE REPORTS, ABSENT SPECIAL CIRCUMSTANCES.  THERE IS NO
EVIDENCE IN THE RECORD INDICATING THAT THE REGIONAL BOARDS HAD SUCH DE
FACTO AUTHORITY.  INDEED, THE EVIDENCE IS TO THE CONTRARY.  IN A RECENT
REVIEW BY THE COMPTROLLER GENERAL OF 209 CASES, THE BOARD CONCURRED IN
THE REGIONAL BOARD'S RECOMMENDATION ONLY 85 TIMES.  COMPTROLLER
GENERAL, REPORT TO THE CONGRESS:  TEH OPERATIONS AND ACTIVITIES OF THE
RENEGOTIATION BOARD 33 - 34 (B-163520--MAY 1973). 

/23/ FACT DETERMINATIONS, FOR EXAMPLE, ARE REVIEWABLE UNDER A
CLEARLY ERRONEOUS STANDARD AND CERTAIN LEGAL JUDGMENTS ONLY FOR ABUSE
OF DISCRETION. 

/24/ THE DISTINCTION, BETWEEN "RECOMMENDATIONS" AND "FINAL OPINIONS"
SUBJECT TO REVIEW, FOR EXEMPTION 5 PURPOSES IS COMPELLING.  IN ORDER
THAT A DECISIONMAKER CONSIDER ALL THE ARGUMENTS IN SUPPORT OF ALL THE
OPTIONS, THOSE WHO RECOMMEND SHOULD BE ENCOURAGED TO MAKE ARGUMENTS
WHICH THEY WOULD NOT MAKE IN PUBLIC AND WITH WHICH THEY MAY EVEN
DISAGREE.  HOWEVER, IF THEIR RECOMMENDATIONS WERE TO HAVE OPERATIVE
EFFECT AND THUS QUALITY AS DECISIONS--EVEN THOUGH SUBJECT TO REVIEW-
THEY SHOULD BE DISCOURAGED FROM BASING THEIR DECISIONS ON ARGUMENTS
WHICH THEY WOULD NOT MAKE PUBLICLY AND WITH WHICH THEY DISAGREE. 
/25/ WE NOTE IN PASSING THAT, WHILE THE CONCLUSION OF THE COURT BELOW
THAT THE REGIONAL BOARD'S STATUS AS AN AGENCY STEMMED FROM ITS POWER TO
ISSUE "ORDERS" IN CLASS B CASES FINDS SUPPORT IN THE CASES,
INTERNATIONAL PAPER CO. V. FPC, 438 F.2D 1348, 1358 - 1359 (CA 2),
CERT. DENIED, 404 U.S. 827 (1971); WASHINGTON RESEARCH PROJECT, INC. V.
DEPARTMENT OF HEW,-- U.S. APP. D.C. ____, 504 F.2D 238 (1974), PET. FOR
CERT. PENDING, NO. 74 - 736, THE COURT OF APPEALS NEVER CONSIDERED THE
POSSIBILITY THAT THE REGIONAL BOARD MIGHT BE AN AGENCY FOR CLASS B
PURPOSES AND NOT FOR CLASS A PURPOSES. 

/26/ SINCE ALL OF THE MEMBERS OF THE DIVISION ARE FREE TO CHANGE
THEIR MINDS AFTER DELIBERATION AND ARE FREE TO PLACE THOUGHTS OR
ARGUMENTS IN THE DIVISION REPORTS WHICH WERE ONLY TENTATIVE IN THE
FIRST PLACE, WE NEED NOT REACH THE QUESTION WHETHER A CONCURRING OR
DISSENTING OPINION MUST BE DISCLOSED EVEN WHERE NO OPINION EXPRESSING
THE VIEW OF THE AGENCY IS WRITTEN. 

REPSONDENT AGRUES THAT DIVISION REPORTS AS WELL AS CONCURRENCES OR
DISSENTS THERETO, CONSTITUTE "FINAL OPINIONS" OF THE BOARD OR
INDIVIDUAL MEMBERS OF THE BOARD, RELYING ON A SPECIFIC REFERENCE,
ASSERTEDLY MADE TO SUCH DOCUMENTS, IN THE HOUSE REPORT WHICH
ACCOMPANIED THE ACT, H. R. REP. NO. 1497, 89TH CONG., 2D SESS. (1966). 
THAT REPORT, IN SPEAKING TO THE COMMITTEE'S UNDERSTANDING OF WHAT IS
NOW CODIFIED AS 5 U.S.C. SEC. 552(A)(2)(A), STATED: 

"(SUBSECTION (A)) REQUIRES CONCURRING AND DISSENTING OPINIONS TO BE
MADE AVAILABLE FOR PUBLIC INSPECTION.  THE PRESENT LAW, REQUIRING MOST
FINAL OPINIONS AND ORDERS TO BE MADE PUBLIC, IMPLIES THAT DISSENTS AND
CONCURRENCES NEED NOT BE DISCLOSED.  AS A RESULT OF A GOVERNMENT
INFORMATION SUBCOMMITTEE INVESTIGATION A NUMBER OF YRARS AGO, TWO MAJOR
REGULATORY AGENCIES AGREED TO MAKE PUBLIC THE DISSENTING OPINIONS OF
THEIR MEMBERS, BUT A RECENT SURVEY INDICATED THAT FIVE AGENCIES--
INCLUDING . . . THE RENEGOTIATION BOARD--DO NOT MAKE PUBLIC THE
MINORITY VIEWS OF THEIR MEMBERS."  H. R. REP. NO. 1497, SUPRA, AT 8. 
THIS STATEMENT FROM THE LEGISLATIVE HISTORY OF THE ACT SUPPORTS THE
PROPOSITION THAT CONGRESS INTENDED THE BOARD TO BE SUBJECT TO THE ACT'S
PROVISIONS, RENEGOTIATION BOARD V. BANNERCRAFT CLOTHING CO., 415 U.S.,
AT 16, AND AT FIRST BLUSH LENDS SUPPORT TO RESPONDENT'S CONTENTION THAT
CONGRESS ASSUMED, IN PASSING THE ACT, THAT THE BOARD WAS ISSUING "FINAL
OPINIONS" IN CASES, THAT THE BOARD WAS WITHHOLDING CONCURRENCES AND
DISSENTS TO THOSE FINAL OPINIONS, AND THAT SEC. 552(A)(2)(A) WAS
DESIGNED TO PUT AN END TO THIS PRACTICE.  OUR RESEARCH CONVINCES US,
HOWEVER, THAT THIS LANGUAGE FROM THE HOUSE REPORT IS NOT TO BE SO
READ.  THE "SURVEY" REFERRED TO IN THE REPORT WAS CONDUCTED IN 1963 BY
THE FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE OF THE
COMMITTEE ON GOVERNMENT OPERATIONS OF THE HOUSE.  THE UNPUBLISHED DATA
GATHERED DURING THAT SURVEY INDICATE THAT, IN RESPONSE TO THREE
QUESTIONS SUBMITTED BY THE SUBCOMMITTEE TO THE BOARD, CONCERNING ITS
PRACTICES WITH RESPECT TO OPINION WRITING AND PUBLICATION, THE BOARD
STATED:  " EXCEPT AS AUTHORIZED IN RENEGOTIATION BOARD REGULATIONS
1480.4(A) (ATTACHED), OPINIONS AND ORDERS OF THE RENEGOTIATION BOARD
ARE NOT PUBLISHED OR MADE AVAILABLE TO THE PUBLIC (SEE RBR (32 C.F.R.
SEC.) 1480.8).  . . ."  AS OUR PRIOR DISCUSSION OF 32 CFR SEC. 1480.8,
N. 15, SUPRA, MAKES CLEAR, THE "OPINIONS" TO WHICH THE BOARD REFERRED
WERE STATEMENTS AND SUMMARIES.  THUS, THE REFERENCE TO CONCURRING AND
DISSENTING OPINIONS IN THE HOUSE REPORT, WITH RESPECT TO THE
RENEGOTIATION BOARD, WAS NOT TO DIVISION REPORTS BUT WAS TO NONEXISTENT
CONCURRENCES TO AND DISSENTS FROM STATEMENTS AND SUMMARIES WHICH WERE
ALREADY BEING MADE PUBLIC. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OF DECISION OF
THIS CASE. 

ALLAN ABBOT TUTTLE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL HILLS,
LEONARD SCHAITMAN, AND DAVID M. COHEN. 

TOM M. SCHAUMBERG ARGUED THE CAUSE FOR RESPONDENT. 

MELVIN L. WULF, CAROL A. COWGILL, AND MARVIN M. KARPATKIN FILED A
BRIEF FOR THE AMERCIAN CIVIL LIBERTIES UNION ET AL. AS AMICI CURIAE
URGING AFFIRMANCE.  WITH HIM OF THE BRIEF WAS FREDRICK B. ABRAMSON. 
..END :



COSTARELL V. MASSACHUSETTS, 421 U.S. 193 


       COSTARELL V. MASSACHUSETTS

        APPEAL FROM THE MUNICIPAL COURT OF THE CITY OF BOSTON,

           MASSACHUSETTS

        NO. 73 - 6739.  ARGUED MARCH 17, 1975--DECIDED APRIL 28,

           1975; APPEAL DISMISSED. 


    AFTER THE BOSTON MUNICIPAL COURT, IN WHICH NO JURY IS PROVIDED,

  DENIED HIS MOTION FOR A JURY TRIAL ON A CRIMINAL CHARGE AND THAT

  COURT ADJUDGED HIM GUILTY AFTER TRIAL, APPELLANT APPEALED,

  PURSUANT TO MASSACHUSETTS' TWO-TIER TRIAL SYSTEM, TO THE SUPERIOR

  COURT WHERE HE COULD OBTAIN A DE NOVO TRIAL WITH A JURY.  BUT

  BEFORE PROCEEDINGS WERE HAD IN THE SUPERIOR COURT, APPELLANT

  APPEALED TO THIS COURT, CLAIMING, INTER ALIA, THAT THE SIXTH AND

  FOURTEENTH AMENDMENTS REQUIRED A JURY TRIAL IN HIS FIRST TRIAL,

 WHETHER IN THE MUNICIPAL OR SUPERIOR COURT.  HELD:  THIS COURT

  HAS NO JURISDICTION OVER THE APPEAL UNDER 28 U.S.C. SEC. 1257,

  SINCE THE MUNICIPAL COURT'S JUDGMENT IS NOT A JUDGMENT OF THE

  HIGHEST STATE COURT IN WHICH A DECISION COULD BE HAD, IN

  APPEARING THAT UNDER MASSACHUSETTS PROCEDURE APPELLANT CAN RAISE

  HIS CONSTITUTIONAL ISSUES IN SUPERIOR OCURT BY A MOTION TO

  DISMISS AND CAN OBTAIN APPELLATE REVIES OF AN ADVERSE DECISION

  THROUGH APPEAL TO THE MASSACHUSETTS SUPREME JUDICIAL COURT. 

  LARGENT V. TEXAS, 318 U.S. 418, DISTINGUISHED. 

PER CURIAM. 

UNDER MASSACHUSETTS PROCEDURE, A "TWO-TIER" SYSTEM IS UTILIZED FOR
TRIAL OF A VARIETY OF CRIMINAL CHARGES.  THE INITIAL TRIAL UNDER THIS
SYSTEM IS IN A COUNTY DISTRICT COURT OR THE MUNICIPAL COURT OF THE CITY
OF BOSTON.  NO JURY IS AVAILABLE IN THESE COURTS, BUT PERSONS WHO ARE
CONVICTED IN THEM MAY OBTAIN A DE NOVO TRIAL, WITH A JURY, IN THE
APPROPRIATE SUPERIOR COURT BY LODGING AN "APPEAL" WITH THAT COURT.  /1/
AT THE DE NOVO TRIAL, ALL ISSUES OF LAW AND FACT MUST BE DTTERMINED
ANEW AND ARE NOT AFFECTED BY THE INITIAL DISPOSITION.  IN EFFECT, THE
TAKING OF THE APPEAL VACATES THE DISTRICT OR MUNICIPAL COURT JUDGMENT,
LEAVING THE DEFENDANT IN THE POSITION OF DEFENDANTS IN OTHER STATES
WHICH REQUIRE THE PROSECUTION TO PRESENT ITS PROOF BEFORE A JURY.  /2/ 

IN JANUARY 1974, APPELLANT COSTARELLI WAS CHARGED WITH KNOWING
UNAUTHORIZED USE OF A MOTOR VEHICLE, AN OFFENSE UNDER MASS. GEN. LAWS,
C. 90, SEC. 24(2)(A) (SUPP. 1975).  THE OFFENSE CARRIES A MAXIMUM
SENTENCE OF A $500 FINE AND TWO YEARS' IMPRISONMENT, AND IS SUBJECT TO
THE TWO-TIER SYSTEM DESCRIBED ABOVE.  PRIOR TO TRIAL IN THE MUNICIPAL
COURT, COSARELLI MOVED FOR A JURY TRIAL.  THE MOTION WAS DENIED AND THE
TRIAL BEFORE THE COURT RESULTED IN A JUDGMENT OF GUILTY.  A ONE-YEAR
PRISON SENTENCE WAS IMPOSED.  COSTARELLI THEREUPON LODGED AN APPEAL IN
THE SUPERIOR SOURT FOR SUFFOLK COUNTY. 

WITHOUT AWAITING PROCEEDINGS IN SUPERIOR COURT, COSTARELLI TOOK THIS
APPEAL TO THIS COURT, /3/ SEEKING TO ESTABLISH THAT THE SIXTH AND
FOURTEENTH AMENDMENTS REQUIRE THAT A JURY BE AVAILABLE IN HIS FIRST
TRIAL, WHETHER IT BE IN THE MUNICIPAL COURT OR THE SUPERIOR COURT.  HE
ALSO RAISED SPEEDY TRIAL AND DOUBLE JEOPARDY CONTENTIONS AS BARS TO HIS
RETRIAL BEFORE A JURY.  ON OCTOBER 21, 1974, WE POSTPONED FURTHER
CONSIDERATION OF THE QUESTION OF JURISDICTION TO THE HEARING ON THE
MERITS.  419 U.S. 893.  WE NOW DISCUSS FOR WANT OF JURISDICTION.  TITLE
28 U.S.C. SEC. 1257 LIMITS OUR REVIEW TO THE JUDGMENT OF THE HIGHEST
STATE COURT IN WHICH A DECISION COULD BE HAD, AND WE CONCLUDE THAT THIS
IS NOT SUCH A JUDGMENT. 

THAT A DECISION OF A HIGHER STATE COURT MIGHT HAVE BEEN HAD IN THIS
CASE IS ESTABLISHED BY A RECENT DECISION OF THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS, WHITMARSH V. COMMONWEALTH, ____ MASS.____, 316 N.E.
2D 610 (1974), IN WHICH ANOTHER CRIMINAL DEFENDANT SOUGHT RELIEF FROM
MASSACHUSETTS' TWO-TIER TRIAL SYSTEM.  AFTER CONVICTION WITHOUT A JURY
IN THE FIRST TIER, WHITMARSH TOOK HIS APPEAL TO THE SUPERIOR COURT, BUT
THEREUPON SOUGHT IMMEDIATE REVIEW OF HIS CONSTITUTIONAL CONTENTIONS IN
THE SUPREME JUDICIAL COURT.  AS ONE POTENTIAL BASIS OF THAT COURT'S
JURISDICTION, HE ASSERTED ITS POWER OF "GENERAL SUPERINTENDENCE OF ALL
COURTS OF INFERIOR JURISDICTION TO CORRECT AND PREVENT ERRORS AND
ABUSES THEREIN IF NO OTHER REMEDY IS EXPRESSLY PROVIDED."  MASS. GEN.
LAWS, C. 211, SEC. 3 (1958) (EMPHASIS ADDED).  THE SUPREME JUDICAL
COURT REJECTED THIS BASIS OF JURISDICTION ON THE GROUND THAT ANOTHER
REMEDY WAS IN FACT EXPRESSLY PROVIDED.  IT STATED: 

" THE CONSTITUTIONAL ISSUE THE PLAINTIFF NOW ASKS US TO DECIDE IS
THE SAME ISSUE WHICH HE RAISED IN THE DISTRICT COURT, AND IN THE
SUPERIOR COURT BY HIS MOTION TO DISMISS.  IF HIS MOTION WERE DENIED,
AND IF HE WERE THEREAFTER TRIED IN THE SUPERIOR COURT AND FOUND GUILTY,
THE PLAINTIFF WOULD HAVE AVAILABLE TO HIM AN OPPORTUNITY FOR APPELLATE
REVIEW OF THE RULING ON HIS MOTION AS MATTER OF RIGHT BY SAVING AND
PERFECTING EXCEPTIONS THERETO."  ____ MASS., AT____, 316 N.E. 2D, AT
613 (FOOTNOTE OMITTED). 

IT IS THUS CLEAR THAT COSTARELLI CAN RAISE HIS CONSTITUTIONAL ISSUES
IN SUPERIOR COURT BY A MOTION TO DISMISS, AND CAN OBTAIN STATE
APPELLATE REVIEW OF AN ADVERSE DECISION THROUGH APPEAL TO THE STATE
HIGH COURT.  THAT THE ISSUE MIGHT BE MOOTED BY HIS ACQUITTAL IN
SUPERIOR COURT IS, OF COURSE, WITHOUT CONSEQUENCE, SINCE AN IMPERTANT
PURPOSE OF THE REQUIREMENT THAT WE REVIEW ONLY FINAL JUDGMENTS OF
HIGHEST AVAILABLE STATE COURTS IS TO PREVENT OUR INTERFERENCE WITH
STATE PROCEEDINGS WHEN THE UNDERLYING DISPUTE MAY BE OTHERWISE
RESOLVED.  CF. REPUBLIC GAS CO. V. OKLAHOMA, 334 U.S. 62, 67 (1948);
GORMAN V. WASHINGTON UNIVERSITY, 316 U.S. 98, 100 - 101 (1942). 

COSTARELLI ARGUES THAT RESORT TO THE REMEDY OUTLINED IN WHITMARSH
SHOULD BE UNNECESSARY, BECAUSE IT CANNOT PRODUCE THE RELIEF TO WHICH HE
BELIEVES HE IS ENTITLED.  HE IS OF THE OPINION THAT IF THE SUPERIOR
COURT DENIED HIS MOTION TO DISMISS, HE WOULD HAVE NO ALTERNATIVE BUT TO
PROCEED TO TRIAL BEFORE A JURY.  ONCE THIS OCCURRED THE ERROR WOULD, HE
FEARS, HAVE BEEN CURED, OR AT LEAST MOOTED. 

BUT WE THINK THIS CONTENTION CONFUSES AN ARGUMENT OF SUBSTANTIVE
CONSTITUTIONAL LAW WITH AN ARGUMENT RELATING TO THE APPLICATION OF 28
U.S.C. SEC. 1257.  WHITMARSH UNDOUBTEDLY CONTEMPLATES THAT IN THE EVENT
THE SUPERIOR COURT WERE TO DENY COSTARELLI'S MOTION, HE WOULD THEN HAVE
TO PROCEED TO TRIAL.  BUT JUST AS SURELY IT CONTEMPLATES THAT IN THE
EVENT THAT JUDGMENT WERE ADVERSE TO HIM, HE COULD APPEAL TO THE SUPREME
JUCICIAL COURT AND RAISE BEFOEE IT PRECISELY THE CONSTITUTIONAL
QUESTION WHICH HAD BEEN RAISED BY THE MOTION TO DISMISS IN THE SUPERIOR
COURT.  WHETHER THE FACT THAT HE WAS AFFORDED A JURY TRIAL IN THE
SUPERIOR COURT PROCEEDING "CURED" OR "MOOTED" HIS FEDERAL
CONSTITUTIONAL CLAIM IS A MATTER OF FEDERAL CONSTITUTIONAL LAW, FOR
DETERMINATION INITIALLY IN STATE COURTS AND ULTIMATELY BY THIS COURT. 
THAT THE STATE COURTS MIGHT CONCLUDE THAT THE SECOND-TIER TRIAL
TERMINATED HIS CLAIM DOES NOT MEAN THAT COSTARELLI MAY DRAFT HIS OWN
RULES OF PROCEDURE IN ORDER TO RAISE THE CLAIM ONLY BEFORE THOSE
MASSACHUSETTS COURTS WHICH HE DEEMS APPROPRIATE.  MASSACHUSETTS AFFORDS
HIM A METHOD BY WHICH HE MAY RAISE HIS CONSTITUTIONAL CLAIM IN THE
SUPERIOR COURT, AND A METHOD BY WHICH HE MAY, IF NECESSARY,
APPROPRIATELY PRESERVE THAT CLAIM FOR ASSERTION IN THE SUPREME JUCICIAL
COURT.  THE SUPREME JUDICIAL COURT OF MASSACHUSETTS, THEREFORE, IS "THE
HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE HAD" ON HIS
CLAIMS.  SINCE NO DECISION HAS BEEN HAD IN THAT COURT, WE LACK
JURISDICTION OF THIS CASE. 

APPELLANT RELIES ON LANGUAGE FROM LARGENT V. TEXAS, 318 U.S. 418
(1943), TO SUPPORT A CONTRARY RESULT.  IN THAT CASE WE REVIEWED A
JUDGMENT OF THE COUNTY COURT OF LAMAR COUNTY, TEXAS.  WE DID SO BECAUSE
UNDER TEXAS LAW THE STATE-COURT SYSTEM PROVIDED NO APPEAL FROM THAT
JUDGMENT OF CONVICTION.  WE NOTED THAT STATE HAVEAS CORPUS WAS
AVAILABLE TO TEST THE CONSTITUTIONALITY ON ITS FACE OF THE ORDINANCE
UNDER WHICH MRS. LARGENT HAD BEEN CONVICTED, BUT THAT IT WAS NOT
AVAILABLE TO TEST ITS CONSTITUTIONALITY AS APPLIED IN HER PARTICULAR
CASE. 

WE THEN STATED: 

" SINCE THERE IS, BY TEXAS LAW OR PRACTICE, NO METHOD WHICH HAS BEEN
CALLED TO OUR ATTENTION FOR REVIEWING THE CONVICTION OF APPELLANT, ON
THE RECORD MADE IN THE COUNTY COURT, WE ARE OF THE OPINION THE APPEAL
IS PROPERLY HERE UNDER SEC. (1257(2)) OF THE JUDICIAL CODE."  ID., AT
421 (EMPHASIS ADDED).  APPELLANT ARGUES THAT BECAUSE THE PROCEEDING IN
MASSACHUSETTS SUPERIOR COURT WOULD NOT BE A REVIEW ON THE RECORD MADE
IN MUNICIPAL COURT, THE DE NOVO PROCEEDING IN SUPERIOR COURT IS A
COLLATERAL PROCEEDING WHICH NEED NOT, UNDER LARGENT, BE UTILIZED TO
SATISFY THE HIGHEST-COURT REQUIREMENT. 

APPELLANT'S RELIANCE IS MISPLACED.  IN LARGENT, WE WENT ON TO SAY: 

" THE PROCEEDING IN THE COUNTY COURT WAS A DISTINCT SUIT.  IT
DISPOSED OF THE CHARGE.  THE POSSIBILITY THAT THE APPELLANT MIGHT
OBTAIN RELEASE BY A SUBSEQUENT AND DISTINCT PROCEEDING, AND ONE NOT IN
THE NATURE OF A REVIEW OF THE PENDING CHARGE, IN THE SAME OR A
DIFFERENT COURT OF THE STATE DOES NOT AFFECT THE FINALITY OF THE
EXISTING JUDGMENT OR THE FACT THAT THIS JUDGMENT WAS OBTAINED IN THE
HIGHEST STATE COURT AVAILABLE TO THE APPELLANT.  CF. BANDINI CO. V.
SUPERIOR COURT, 284 U.S. 8, 14; BRYANT V. ZIMMERMAN, 278 U.S. 63, 70." 
318 U.S., AT 421 - 422. 

THE PRESENT CASE IS PLAINLY DISTINGUISHABLE.  HERE THE MUNICIPAL
COURT PROCEEDING DID NOT FINALLY DISPOSE OF THE CHARGE, AND THE
PROCEEDING IN SUPERIOR COURT IS NOT A DISTINCT SUIT OR PROCEEDING.  IT
IS INSTEAD BASED ON PRECISELY THE SAME COMPLAINT AS WAS THE MUNICIPAL
COURT TRIAL.  IN LARGENT, THE AVAILABLE REVIEW ON HABEAS CORPUS WAS NOT
BASED ON THE RECORD IN COUNTY COURT FOR THE REASON THAT HABEAS REVIEW
WAS SHARPLY LIMITED IN SCOPE.  SIMILARLY, IN BANDINI CO., CITED IN
LARGENT, THE "DISTINCT SUIT" WAS A PROCEEDING FOR A WRIT OF PROHIBITION
IN WHICH THE ONLY LITIGABLE ISSUE WAS LOWER COURT JURISDICTION. 

HERE, ON THE CONTRARY, THE REVIEW IS NOT CIRCUMSCRIBED SO AS TO BE
NARROWER THAN NORMAL APPELLANT-TYPE REVIEW ON THE RECORD MADE IN AN
INFERIOR COURT, BUT IS INSTEAD SO BROAD AS TO PERMIT DE NOVO
RELITIGATION OF ALL ASPECTS OF THE OFFENSE CHARGED, WHETHER THEY BE
FACTUAL OR LEGAL.  IT IS BECAUSE OF THE BREADTH OF APPELLATE REVIEW,
NOT ITS NARROWNESS, AS IN LARGENT, THAT THE RECORD IS NOT THE BASIS OF
REVIEW IN SUPERIOR COURT.  GREATER IDENTITY OF PROCEEDINGS IN TWO
DIFFERENT COURTS WOULD BE DIFFICULT TO IMAGINE, AND IT WOULD BE STRANGE
INDEED TO CLASS THE SUPERIOR COURT TRIAL AS A FORM OF "COLLATERAL"
REVIEW OF THE MUNICIPAL COURT JUDGMENT IN THE SAME SENSE AS HABEAS
CORPUS IS TRADITIONALLY THOUGHT OF AS A "COLLATERAL ATTACK" ON A
JUDGMENT OF CONVICTION. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 

SO ORDERED. 

/1/ SEE MASS. GEN. LAWS, C. 218, SEC. 27 A, AND C. 278, SEC. 18
(SUPP. 1975); C. 278, SEC. 18 A (1972). 

UNLIKE THE SITUATION IN COLTEN V. KENTUCKY, 407 U.S. 104 (1972), THE
INITIAL TRIAL CANNOT BE AVOIDED BY A PLEA OF GUILTY WITHOUT ALSO
WAIVING THE RIGHT TO A JURY TRIAL IN SUPERIOR COURT. 

/2/ APPELLANT ARGUES THAT IN SEVERAL RESPECTS THE DISTRICT OR
MUNICIPAL COURT JUDGMENT REMAINS IN EFFECT DESPITE THE LODGING OF AN
APPEAL.  IN PARTICULAR, HE POINTS TO THE FACTS THAT IF A DEFENDANT
DEFAULTS IN SUPERIOR COURT, THE FIRST-TIER JUDGMENT BECOMES THE LEGAL
BASIS FOR IMPOSING SENTENCE, AND THAT APPEAL DOES NOT ELIMINATE SUCH
COLLATERAL CONSEQUENCES AS REVOCATION OF PAROLE OR OF A DRIVER'S
PERMIT.  THESE MATTERS DO NOT AFFECT THE RESULT WE ANNOUNCE TODAY, AND
MERIT NO FURTHER DISCUSSION. 

/3/ THERE IS SOME QUESTION AS TO WHETHER REVIEW SHOULD HAVE BEEN
SOUGHT BY WAY OF A PETITION FOR CERTIORARI RATHER THAN APPEAL.  UNDER
28 U.S.C. SEC. 1257(2), WE HAVE APPELLATE JURISDICTION WHEN THE
CONSTITUTIONAL VALIDITY OF A STATE STATUTE IS DRAWN IN QUESTION AND THE
DECISION IS IN FAVOR OF ITS VALIDITY.  IN THE PRESENT CASE IT IS NOT
CLEAR THAT THE DENIAL OF A JURY IN THE FIRST-TIER TRIAL RESULTED FROM
THE OPERATION OF A STATUTE RATHER THAN OF CUSTOM AND PRACTICE.  WE NEED
NOT RESOLVE THE ISSUE, BECAUSE IT CANNOT AFFECT OUR DISPOSITION--IF NOT
PROPERLY DENOMINATED AN APPEAL, WE WOULD TREAT THE PAPERS AS A PETITION
FOR CERTIORARI, 28 U.S.C. SEC. 2103, AND THE HIGHEST-STATE-COURT
REQUIREMENT OF SEC. 1257 APPLIES TO PETITIONERS FOR CERTIORARI AS WELL
AS TO APPEALS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

ROBERT W. HAGOPIAN, BY APPOINTMENT OF THE COURT, 419 U.S. 1066,
ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

DAVID A. MILLS, ASSISTANT ATTORNEY GENERAL OF MASSACHUSETTS, ARGUED
THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WERE FRANCIS X.
BELLOTTI, ATTORNEY GENERAL, AND JOHN J. IRWIN, JR., ASSISTANT ATTORNEY
GENERAL. 

MALVINE NATHANSON FILED A BRIEF FOR THE MASSACHUSETTS DEFENDERS
COMMITTEE AS AMICUS CURIAE URGING REVERSAL. 
..END :




















WITHROW V. LARKIN, 421 U.S. 35 


       WITHROW ET AL. V. LARKIN

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

DISTRICT OF WISCONSIN

        NO. 73 - 1573.  ARGUED DECEMBER 18, 1974--DECIDED APRIL 16,

           1975; REVERSED AND REMANDED.  SEE 368 FSUPP. 796. 


    WISCONSIN STATUTES PROHIBIT VARIOUS ACTS OF PROFESSIONAL

  MISCONDUCT BY PHYSICIANS AND EMPOWER A STATE EXAMINING BOARD TO

  WARN AND REPRIMAND PHYSICIANS, TO TEMPORARILY SUSPEND LICENSES,

  AND TO INSTITUTE CRIMINAL ACTION OR ACTION TO REVOKE A LICENSE. 

  WHEN THE BOARD NOTIFIED APPELLEE LICENSED PHYSICIAN THAT A CLOSED

  INVESTIGATIVE HEARING, WHICH APPELLEE AND HIS ATTORNEY COULD

  ATTEND, WOULD BE HELD TO DETERMINE WHETHER APPELLEE HAD ENGAGED

  IN CERTAIN PROSCRIBED ACTS, APPELLEE BROUGHT AN ACTION AGAINST

APPELLANT BOARD MEMBERS SEEKING INJUNCTIVE RELIEF AND A TEMPORARY

  RESTRAINING ORDER AGAINST THE HEARING ON THE GROUND THAT THE

  STATUTES WERE UNCONSTITUTIONAL AND THAT APPELLANTS' ACTS WITH

  RESPECT TO APPELLEE VIOLATED HIS CONSTITUTIONAL RIGHTS.  THE

  DISTRICT COURT DENIEE THE RESTRAINING ORDER, AND THE BOARD

  PROCEEDED WITH THE HEARING, AND AFTER HEARING TESTIMONY NOTIFIED

  APPELLEE THAT A "CONTESTED HEARING" WOULD BE HELD AT WHICH THE

  BOARD WOULD DETERMINE WHETHER HIS LICENSE WOULD BE TEMPORARILY

  SUSPENDED.  THE COURT THEN GRANTED APPELLEE'S MOTION FOR A

  RESTRAINING ORDER AGAINST THE CONTESTED HEARING ON THE GROUND

THAT A SUBSTANTIAL FEDERAL DUE PROCESS QUESTION HAD ARISEN.  THE

  BOARD COMPLIED WITH THE ORDER AND DID NOT PROCEED WITH THE

  CONTESTED HEARING BUT INSTEAD HELD A FINAL INVESTIGATIVE SESSION

  AND MADE "FINDINGS OF FACT" THAT APPELLEE HAD ENGAGED IN CERTAIN

  PROSCRIBED CONDUCT AND "CONCLUSIONS OF LAW" THAT THERE WAS

  PROBABLE CAUSE TO BELIEVE HE HAD VIOLATED CERTAIN CRIMINAL

  PROVISIONS.  SUBSEQUENTLY, A THREE-JUDGE COURT DECLARED THAT THE

  STATUTE EMPOWERING THE BOARD TEMPORARILY TO SUSPEND A PHYSICIAN'S

  LICENSE WITHOUT FORMAL PROCEEDINGS WAS UNCONSTITUTIONAL AND

  PRELIMINARILY ENJOINED THE BOARD FROM ENFORCING IT ON THE GROUND

  THAT IT WOULD BE A DENIAL OF DUE PROCESS FOR THE BOARD TO SUSPEND

  APPELLEE'S LICENSE "AT ITS OWN CONTESTED HEARING ON CHARGES

  EVOLVING FROM ITS OWN INVESTIGATION."  AFTER APPELLANTS APPEALED

  FROM THIS DECISION THE DISTRICT COURT MODIFIED THE JUDGMENT SO AS

  TO WITHDRAW ITS DECLARATION OF UNCONSTITUTIONALITY AND TO

  PRELIMINARILY ENJOIN ITS ENFORCEMENT AGAINST APPELLEE ONLY,

  STATING THAT APPELLEE WOULD SUFFER IRREPARABLE INJURY IF THE

  STATUTE WERE APPLIED TO HIM AND THAT HIS CHALLENGE TO ITS

  CONSTITUTIONALITY HAD A HIGH LIKELIHOOD OF SUCCESS.  HELD: 

     1.  THE THREE-JUDGE COURT'S INITIAL JUDGMENT SHOULD NOT HAVE

DECLARED THE STATUTE UNCONSTITUTIONAL AND ERRONEOUSLY ENJOINED

  THE BOARD FROM APPLYING IT AGAINST ALL LICENSEES.  MAYO V.

  LAKELAND HIGHLANDS CANNING CO., 309 U.S. 310.  P. 43. 

     2.  WHILE A DECISION TO VACATE AND REMAND FOR FULLER
EMENDATION

  OF THE DISTRICT COURT'S FINDINGS, CONCLUSIONS, AND JUDGMENT WOULD

  BE JUSTIFIED IN VIEW OF THEIR LACK OF SPECIFICITY, SUCH ACTION,

  UNDER THE CIRCUMSTANCES, WOULD NOT ADD ANYTHING ESSENTIAL TO THE

  DETERMINATION OF THE MERITS AND WOULD BE A COSTLY PROCEDURE TO

  EMPHASIZE POINTS ALREADY MADE AND RECOGNIZED BY THE PARTIES AS

  WELL AS BY THE DISTRICT COURT.  PP. 44 - 46. 

     3.  THE DISTRICT COURT ERRED WHEN IT RESTRAINED THE BOARD'S

  CONTESTED HEARING AND WHEN IT PRELIMINARILY ENJOINED THE

  ENFORCEMENT OF THE STATUTE AGAINST APPELLEE, IINCE ON THE RECORD

  IT IS QUITE UNLIKELY THAT APPELLEE WOULD ULTIMATELY PREVAIL ON

  THE MERITS OF THE DUE PRECESS ISSUE.  PP. 46 - 55. 

     (A) THE COMBINATION OF INVESTIGATIVE AND ADJUDICITIVE
FUNCTIONS

  DOES NOT, WITHOUT MORE, CONSTITUTE A DUE PROCESS VIOLATION AS

  CREATING AN UNCONSTITUTIONAL RISK OF BIAS.  PP 46 - 54. 

     (B) HERE THE PROCESSES UTILIZED BY THE BOARD DO NOT IN

  THEMSELVES CONTAIN AN UNACCEPTABLE RISK OF BIAS, SINCE, ALTHOUGH

  THE INVESTIGATIVE HEARING HAD BEEN CLOSED TO THE PUBLIC, APPELLEE

  AND HIS ATTORNEY WERE PERMITTED TO BE PRESENT THROUGHOUT AND IN

  FACT HIS ATTORNEY DID ATTEND THE HEARINGS AND KNEW THE FACTS

  PRESENTED TO THE BOARD; MOREOVER, NO SPECIFIC FOUNDATION HAS BEEN

  PRESENTED FOR SUSPECTING THAT THE BOARD HAD BEEN PREJUDICED BY

  ITS INVESTIGATION OR WOULD BE DISABLED FROM HEARING AND DECIDING

  ON THE BASIS OF THE EVIDENCE TO BE PRESENTED AT THE CONTESTED

  HEARING, THE MERE EXPOSURE TO EVIDENCE PRESENTED IN NONADVERSARY

  INVESTIGATIVE PEOCEDURES BEING INSUFFICIENT IN ITSELF TO IMPUGN

  THE BOARD'S FAIRNESS AT A LATER ADVERSARY HEARING.  PP. 54 - 55. 

     4. THE FACT THAT THE BOARD, WHEN PREVENTED FROM GOING FORWARD

WITH THE CONTESTED HEARING, PROCEEDED TO ISSUE FORMAL FINDINGS OF

  FACT AND CONCLUSIONS OF LAW THAT THERE WAS PROBABLE CAUSE TO

  BELIEVE APPELLEE HAD ENGAGED IN VARIOUS PROHIBITED ACTS, DOES NOT

  SHOW PREJUDICE AND PREJUDGMENT, AND THE BOARD STAYED WITHIN

  ACCEPTED BOUNDS OF DUE PROCESS BY ISSUING SUCH FINDINGS AND

  CONCLUSIONS AFTER INVESTIGATION.  THE INITIAL CHARGE OR

  DETERMINATION OF PROBABLE CAUSE AND THE ULTIMATE ADJUDICATION

  HAVE DIFFERENT BASES AND PURPOSES, AND THE FACT THAT THE SAME

  AGENCY MAKES THEM IN TANDEM AND THAT THEY RELATE TO THE SAME

  ISSUES DOES NOT RESULT IN A PROCEDURAL DUE PROCESS VIOLATION. 

  PP. 55 - 58. 

     WHITE, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE CUORT. 

THE STATUTES OF THE STATE OF WISCONSIN FORBID THE PRACTICE OF
MEDICINE WITHOUT A LICENSE FROM AN EXAMING BOARD COMPOSED OF PRACTICING
PHYSICIANS.  THE STATUTES ALSO DEFINE AND FORBID VARIOUS ACTS OF
PROFESSIONAL MISCONDUCT, PROSCRIBE FEE SPLITTING, AND MAKE ILLEGAL THE
PRACTICE OF MEDICINE UNDER ANY NAME OTHER THAN THE NAME UNDER WHICH A
LICENSE HAS ISSUED IF THE PUBLIC WOULD BE MISLED, SUCH PRACTICE WOULD
CONSTITUTE UNFAIR COMPETITION WITH ANOTHER PHYSICIAN, OR OTHER
DETIRMENT TO THE PROFESSION WOULD RESULT.  TO ENFORCE THESE PROVISIONS,
THE EXAMINING BOARD IS EMPOWERED UNDER WIS. STAT. ANN. SEC. 448.17 AND
448.18 (1974) TO WARN AND REPRIMAND, TEMPORARILY TO SUSPEND THE
LICENSE, AND "TO INSTITUTE CRIMINAL ACTION OR ACTION TO REVOKE LICENSE
WHEN IT FINDS PROBABLE CAUSE THEREFOR UNDER CRIMINAL OR REVOCATION
STATUTE ...."  /1/ WHEN AN INVESTIGATIVE PROCEEDING BEFORE THE
EXAMINING BOARD WAS COMMENCED AGAINST HIM, APPELLEE BAOUGHT THIS SUIT
AGAINST APPELLANTS, THE INDIVIDUAL MEMBERS OF THE BOARD, SEEKING AN
INJUNCTION AGAINST THE ENVORCEMENT OF THE STATUTES.  THE DISTRICT COURT
ISSUED A PRELIMINARY INJUNCTION, THE APPELLANTS APPEALED, AND WE NOTED
PROBABLE JURISDICTION, 417 U.S. 943 (1974). 

        I 

APPELLEE, A RESIDENT OF MICHIGAN AND LICENSED TO PRACTICE MEDICINE
THERE, OBTAINED A WISCONSIN LICENSE IN AUGUST 1971 UNDER A RECIPROCITY
AGREEMENT BETWEEN MICHIGAN AND WISCONSIN GOVERNING MEDICAL LICENSING. 
HIS PRACTICE IN WISCONSIN CONSISTED OF PERFORMING ABORTIONS AT AN
OFFICE IN MILWAUKEE.  ON JUNE 20, 1973, THE BOARD SENT TO APPELLEE A
NOTICE THAT IT WOULD HOLD AN INVESTIGATIVE HEATING ON JULY 12, 1973,
UNDER WIS. STAT. ANN. 448.17 TO DETERMINE WHETHER HE HAD ENGAGED IN
CERTAIN PROSCRIBED ACTS.  /2/ THE HEARING WOULD BE CLOSED TO THE
PUBLIC, ALTHOUGH APPELLEE AND HIS ATTORNEY COULD ATTEND.  THEY WOULD
NOT, HOWEVER, BE PERMITTED TO CROSS-EXAMINE WITNESSES.  BASED UPON THE
EVIDENCE PRESENTED AT THE HEARING, THE BOARD WOULD DECIDE "WHETHER TO
WARN OR REPRIMAND IF IT FINDS SUCH PRACTICE AND WHETHER TO INSTITUTE
CRIMINAL ACTION OR ACTION TO REVOKE LICENSE IF PROBABLE CAUSE THEREFOR
EXISTS UNDER CRIMINAL OR REVOCATION STATUTES."  APP.  14. 

ON JULY 6, 1973, APPELLEE FILED HIS COMPLAINT IN THIS ACTION UNDER
42 U.S.C. SEC. 1983 SEEKING PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
AND A TEMPORARY RESTRAINING ORDER PREVENTING THE BOARD FROM
INVESTIGATING HIM AND FROM CONDUCTING THE INVESTIGATIVE HAARING.  THE
DISTRICT COURT DENIED THE MOTION FOR A TEMPORARY RESTRAINING ORDER. 

ON JULY 12, 1973, APPELLANTS MOVED TO DISMISS THE COMPLAINT.  ON THE
SAME DAY, APPELLEE FILED AN ANENDED COMPLAINT IN WHICH INJUNCTIVE
RELIEF WAS SOUGHT ON THE GROUND THAT WIS. STAT. ANN. SEC. 448.17 AND
118.18 WERE UNCONSTITUTIONAL AND THAT APPELLANTS' ACTS WITH RESPECT TO
HIM VIOLATED HIS CONSTITUTIONAL RIGHTS.  THE DISTRICT COURT AGAIN
DENIED APPELLEE'S MOTION FOR A TEMPORARY RESTRAINING ORDER, BUT DID NOT
ACT UPON APPELLANTS' MOTION TO DISMISS.  ON JULY 30, 1973, APPELLANTS
SUBMITTED AN AMENDED MOTION TO DISMISS. 

THE BOARD PROCEEDED WITH ITS INVESTIGATIVE HEARING ON JULY 12 AND
13, 1973; NUMEROUS WITNESSES TESTIFIED AND APPELLEE'S COUNSEL WAS
PRESENT THROUGHOUT THE PROCEEDINGS.  APPELLEE'S COUNSEL WAS
SUBSEQUENTLY INFORMED THAT APPELLEE COULD, IF HE WISHED, APPEAR BEFORE
THE BOARD TO EXPLAIN ANY OF THE EVIDENCE WHICH HAD BEEN PRESENTED. 
APP. 36 - 37. 

ON SEPTEMBER 18, 1973, THE BOARD SENT TO APPELLEE A NOTICE THAT A
"CONTESTED HEARING" /3/ WOULD BE HELD ON OCTOBER 4, 1973, TO DETERMINE
WHETHER APPELLEE HAD ENGAGED IN CERTAIN PROHIBITED ACTS /4/ AND THAT
BASED UPON THE EVIDENCE ADDUCED AT THE HEARING THE BOARD WOULD
DETERMINE WHETHER HIS LICENSE WOULD BE SUSPENDED TEMPORARILY UNDER WIS.
STAT. SEC. 448.18(7).  APPELLEE MOVED FOR A RESTRAINING ORDER AGAINST
THE CONTESTED HEARING.  THE DISTRICT COURT GRANTED THE MOTION ON
OCTOBER 1, 1973.  BECAUSE THE BOARD HAD MOVED FROM PURELY INVESTIGATIVE
PROCEEDINGS TO A HEARING AIMED AT DECIDING WHETHER SUSPENSION OF
APPELLEE'S LICENSE WAS APPROPRIATE, THE DISTRICT COURT CONCLUDED THAT A
SUBSTANTIAL FEDREAL QUESTION HAD ARISEN, NAMELY, WHETHER THE AUTHORITY
GIVEN TO APPELLANTS BOTH "TO INVESTIGATE PHYSICIANS AND PRESENT CHARGES
(AND) TO RULE ON THOSE CHARGES AND IMPOSE PUNISHMENT, AT LEAST TO THE
EXTENT OF REPRIMANDING OR TEMPORARILY SUSPENDING" VIOLATED APPELLEE'S
DUE PROCESS RIGHTS.  APPELLEE'S MOTION TO REQUEST THE CONVENING OF A
THREE-JUDGE COURT WAS ALSO GRANTED, AND APPELLANTS' MOTION TO DISMISS
WAS DENIED.  368 F.SUPP.  793, 795 - 796 (ED WIS. 1973). 

THE BOARD COMPLIED AND DID NOT GO FORWARD WITH THE CONTESTED
HEARING.  INSTEAD, IT NOTICED AND HELD A FINAL INVESTIGATIVE SESSION ON
OCTOBER 4, 1973, AT WHICH APPELLEE'S ATTORNEY, BUT NOT APPELLEE,
APPEARED.  /5/ THE BOARD THEREUPON ISSUED " FINDINGS OF FACT," "
CONCLUSIONS OF LAW," AND A " DECISION" IN WHICH THE BOARD FOUND THAT
APPELLEE HAD ENGAGED IN SPECIFIED CONDUCT PROSCRIBED BY THE STATUTE. 
THE OPERATIVE PORTION OF ITS DECISION" WAS THE FOLLOWING: 

   " WITHIN THE MEANING OF SEC. 448.17, STATS., IT IS HEREBY

  DETERMINED THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT LICENSEE

  HAS VIOLATED THE CRIMINAL PROVISIONS OF CH. 448, STATS., AND THAT

  THERE IS PROBABLE CAUSE FOR AN ACTION TO REVOKE THE LICENSE OF

  THE LICENSEE FOR ENGAGING IN UNPROFESSIONAL CONDUCT. 

     " THEREFORE, IT IS THE DECISON OF THIS BOARD THAT THE
SECRETARY

  VERIFY THIS DOCUMENT AND FILE IT AS A VERIFIED COMPLAINT WITH THE

  DISTRICT ATTORNEY OF MILWAUKEE COUNTY IN ACCORDANCE WITH SEC.

  448.18 (2), STATS., FOR THE PURPOSE OF INITIATING AN ACTION TO

REVOKE THE LICENSE OF DUANE R. LARKIN, M.D., TO PRACTICE MEDICINE

  AND SURGERY IN THE STATE OF WISCONSIN AND INITIATING APPROPRIATE

  ACTIONS FOR VIOLATION OF THE CRIMINAL LAWS RELATING TO THE

  PRACTICE OF MEDICINE."  APP.  59 - 60. 

ON NOVEMBER 19, 1973, THE THREE-JUDGE DISTRICT COURT FOUND (WITH AN
OPINION FOLLOWING ON DECEMBER 21, 1973) THAT SEC. 448.18(7) WAS
UNCONSTITUTIONAL AS A VIOLATION OF DUE PROCESS GUARANTEES AND ENJOINED
TH E BOARD FROM ENFORCING IT.  ITS HOLDING WAS: 

"(FOR THE BOARD TEMPORARILY TO SUSPEND DR. LARKIN'S LICENSE AT ITS
OWN CONTESTED HEARING ON CHARGES EVOLVING FROM ITS OWN CONTESTED
HEARING ON CHARGES EVOLVING FROM ITS OWN INVESTIGATION WOULD CONSTITUTE
A DENIAL TO HIM OF HIS RIGHTS TO PROCEDURAL DUE PROCESS.  INSOFAR AS
SEC. 448.18(7) AUTHORIZES A PROCEDURE WHEREIN A PHYSICIAN STANDS TO
LOSE HIS LIBERTY OR PROPERTY, ABSENT THE INTERVENTION OF AN
INDEPENDENT, NEUTRAL AND DETACHED DECISION MAKER, WE CONCLUDED THAT IT
WAS UNCONSTITUTIONAL AND UNENFORCEABLE."  368 F.SUPP.  796, 797 (ED
WIS. 1973).  JUDGMENT WAS ENTERED ON JANUARY 31, 1974, BY WHICH IT WAS
" ORDERED AND ADJUDGED THAT SEC. 448.18(7), WIS. STATS., IS
UNCONSTITUTIONAL AND THAT THE DEFENDANTS ARE PRELIMINARILY ENJOINED
UNTIL FURTHER NOTICE FROM UTILIZING THE PROVISIONS OF SEC. 448.18(7),
WIS. STATS." 

APPELLANTS TOOK AN APPEAL FROM THAT DECISION, AND WE NOTED PROBABLE
JURISDICTION ON JUNE 10, 1974.  SUBSEQUENTLY, ON JULY 25, 1974, THE
DISTRICT COURT, AT THE INITIAL SUGGESTION OF APPELLANTS BUT JOINED IN
BY A CROSS-MOTION OF APPELLEE, MODIFIED ITS JUDGMENT SO AS TO WITHDRAW
ITS DECLARATION OF UNCONSTITUTIONALITY AND TO ENJOIN THE ENFORCEMENT OF
SEC. 448.18(7) AGAINST APPELLEE ONLY.  THE AMENDED JUDGMENT DECLARED
THAT APPELLEE WOULD SUFFER IRREPARABLE INJURY IF THE STATUTE WERE
APPLIED TO HIM AND THAT HIS CHALLENGE TO THE STATUTE'S
CONSTITUTIONALITY HAD A HIGH LIKELIHOOD OF SUCCESS.  /6/

        II 

APPELLANTS CORRECTLY ASSERT THAT THE DISTRICT COURT'S INITIAL
JUDGMENT CONFLICTED WITH THIS COURT'S HOLDING IN MAYO V. LAKELAND
HIGHLANDS CANNING CO., 309 U.S. 310 (1940), THAT A STATE STATUTE SHOULD
NOT BE DECLARED UNCONSTITUTIOAL BY A DISTRICT COURT IF A PRELIMINARY
INJUNCTION IS GRANTED A PLAINTIFF TO PROTECT HIS INTERESTS DURING THE
ENSUING LITIGATION.  " THE QUESTION BEFORE (THE DISTRICT COURT) WAS NOT
WHETHER THE ACT WAS CONSTITUTIONAL OR UNCONSTITUTIONAL...BUT WAS
WHETHER THE SHOWING MADE RAISED SERIOUS QUESTIONS, UNDER THE FEDERAL
CONSTITUTION ...AND DISCLOSED THAT ENFORCEMENT OF THE ACT, PENDING
FINAL HEARING, WOULD INFLICT IRREPARABLE DAMAGES UPON THE
COMPLAINANTS."  ID., AT 316.  THE JANUARY 31, 1974, JUDGMENT SHOULD NOT
HAVE DECLARED SEC. 448.18(7) UNCONSTITUTIONAL AND IT ERRONEOUSLY
ENJOINED THE BOARD FROM UTILIZING THE SECTION AGAINST ANY LICENSEE. 

THE DISTRICT COURT, HOWEVER, HAS SUBSEQUENTLY MODIFIED ITS JUDGMENT
TO ELIMINATE THE DECLARATION OF UNCONSTITUTIONALITY AND TO ENJOIN
APPLICATION OF THE STATUTE ONLY AS AGAINST APPELLEE.  /7/  SINCE
APPELLANTS ARE NO LONGER FORBIDDEN TO APPLY THE STATUTES TO OTHER
PERSONS, THIS ISSUE IN THE CASE HAS BEEN EFFECTIVELY SETTLED. 

WE HAVE ALSO CONCLUDED THAT THE AMENDED JUDGMENT MAKES INAPPROPRIATE
EXTENDED TREATMENT OF APPELLANTS' CONTENTIONS THAT THE DISTRICT COURT
FAILED TO MAKE THE FINDINGS AND CONCLUSIONS REQUIRED BY FED. RULE CIV.
PROC. 52(A), AND FIILED TO INCLUDE IN THE ORDER GRANTING THE INJUNCTION
THE REASONS FOR ITS ISSUANCE AS REQUIRED BY RULE 65(D).  /8/ THE
DISTRICT COURT'S OPINION AND INITIAL JUDGMENT WERE DEFICIENT IN THIS
RESPECT, BUT ITS AMENDED JUDGMENT FOUND WHAT THE CUURT SAID WAS
CONTAINED IN ITS PRIOR OPINION /9/ --THAT APPELLEE WOULD SUFFER
IRREPARABLE INJURY IF THE STATUTE WERE TO BE APPLIED AGAINST HIM AND
THAT APPELLEE'S "CHALLENGE TO THE CONSTITUTIONALITY OF SAID STATUTE HAS
A HIGH LIKELIHOOD OF SUCCESS."  /10/  CF. BROWN V. CHOTE, 411 U.S. 452,
456 (1973).  WHILE A DECISION TO VACATE AND REMAND FOR FULLER
EMENDATION OF THE FINDINGS, CONCLUSIONS, AND JUDGMENT WOULD BE
JUSTIFIED IN VIEW OF THEIR LACK OF SPECIFICITY, /11/ WE DOUBT THAT SUCH
ACTION, IN THE CIRCUMSTANCES PRESENT HERE, WOULD ADD ANYTHING ESSENTIAL
TO THE DETERMINATION OF THE MERITS.  THE DISTRICT COURT'S DECISION
TURNED UPON THE SEQUENCE OF FUNCTIONS FOLLOWED BY APPELLANTS AND NOT
UPON ANY FACTUAL ISSUE PECULIAR TO THIS CASE.  WE HAVE JURISDICTION
UNDER 28 U.S.C. SEC. 1253, /12/ AND A REMAND AT THIS JUNCTURE WOULD BE
A COSTLY PROCEDURE TO EMPHASIZE POINTS THAT HAVE ALREADY BEEN MADE AND
RECOGNIZED BY BOTH PARTIES AS WELL AS BY THE DISTRICT COURT. 

        III 

THE DISTRICT COURT FRAMED THE CONSTITUTIONAL ISSUE, WHICH IT
ADDRESSED AS BEING WHETHER "FOR THE BOARD TEMPORARILY TO SUSPEND DR.
LARKIN'S LICENSE AT ITS OWN CONTESTED HEARING ON CHARGES EVOLVING FROM
ITS OWN INVESTIGATION WOULD CONSTITUTE A DENIAL TO HIM OF HIS RIGHTS TO
PROCEDURAL DUE PROCESS."  368 F.SUPP., AT 797.  /13/ THE QUESTION WAS
INITALLY ANSWERED AFFIRMATIVELY, AND IN ITS AMENDED JUDGMENT THE COURT
ASSERTED THAT THERE WAS A HIGH PROBABILITY THAT APPELLEE WOULD PREVAIL
ON THE QUESTION.  ITS OPINION STATED THAT THE "STATE MEDICAL EXAMINING
BOARD (DID) NOT QUALIFY AS (AN INDEPENDENT) DECISIONMAKER (AND COULD
NOT) PROPERLY RULE WITH REGARD TO THE MERITS OF THE SAME CHARGES IT
INVESTIGATED AND, AS IN THIS CASE, PRESENTED TO THE DISTRICT
ATTORNEY."  ID., AT 798.  WE DISAGREE.  ON THE PRESENT RECORD, IT IS
QUITE UNLIKELY THAT APPELLEE WOULD ULTIMATELY PREVAIL ON THE MERITS OF
THE DUE PROCESS ISSUE PRESENTED TO THE DISTRICT COURT, AND IT WAS AN
ABUSE OF DISCRETION TO ISSUE THE PRELIMINARY INJUNCTION. 

CONCEDEDLY, A "FAIR TRIAL IN A FAIR TRIBUNAL IS A BASIC REQUIREMENT
OF DUE PROCESS."  IN RE MURCHISON, 349 U.S. 133, 136 (1955).  THIS
APPLIES TO ADMINISTRATIVE AGENCIES WHICH ADJUDICATE AS WELL AS TO
COURTS.  GIBSON V. BERRYHILL, 411 U.S. 564, 579 (1973).  NOT ONLY IS A
BIASED DECISIONMAKER CONSTITUTIONALLY UNACCEPTABLE BUT "OUR SYSTEM OF
LAW HAS ALWAYS ENDEAVORED TO PREVENT EVEN THE PROBABILITY OF
UNFAIRNESS.  IN RE MURCHISON, SUPRA, AT 136; CF. TUMEY V. OHIO, 273
U.S. 510, 532 (1927).  IN PURSUIT OF THIS END, VARIOUS SITUATIONS HAVE
BEEN IDENTIFIED IN WHICH EXPERIENCE TEACHES THAT THE PROBABILITY OF
ACTUAL BIAS ON THE PART OF THE JUDGE OR DECISIONMAKER IS TOO HIGH TO BE
CONSTITUTIONALLY TOLERABLE.  AMONG THESE CASES ARE THOSE IN WHICH THE
ADJUDICATOR HAS A PECUNIARY INTEREST IN THE OUTCOME /14/  AND IN WHICH
HE HAS BEEN THE TARGET OF PERSONAL ABUSE OR CRITICISM FROM THE PARTY
BEFORE HIM.  /15/ 

THE CONTENTION THAT THE COMBINATION OF INVESTIGATIVE AND
ADJUDICATIVE FUNCTIONS NECESSARILY CREATES AN UNCONSTITUTIONAL RISK OF
BIAS IN ADMINISTRATIVE ADJUDICATION HAS A MUCH MORE DIFFICULT BURDEN OF
PERSUASION TO CARRY.  IT MUST OVERCOME A PRESUMPTION OF HONESTY AND
INTEGRITY IN THOSE SERVING AS ADJUDICATORS; AND IT MUST CONVINCE THAT,
UNDER A REALISTIC APPRAISAL OF PSYCHOLOGICAL TENDENCIES AND HUMAN
WEAKNESS, CONFERRING INVESTIGATIVE AND ADJUDICATIVE POWERS ON THE SAME
INDIVIDUALS POSES SUCH A RISK OF ACTUAL BIAS OR PREJUDGMENT THAT THE
PRACTICE MUST BE FORBIDDEN IF THE GUARANTEE OF DUE PROCESS IS TO BE
ADEQUATELY IMPLEMENTED. 

VERY SIMILAR CLAIMS HAVE BEEN SQUARELY REJECTED IN PRIOR DECISIONS
OF THIS COURT.  IN FTC V. CEMENT INSTITUTE, 333 U.S. 683 (1949), THE
COMMISSION HAD INSTITUTED PROCEEDINGS CONCERNING THE RESPONDENTS'
MULTIPLE BASING-POINT DELIVERED-PRICE SYSTEM.  IT WAS DEMANDED THAT THE
COMMISSION MEMBERS DISQUALIFY THEMSELVES BECAUSE LONG BEFORE THE
COMMISSION HAD FILED ITS COMPLAINT IT HAD INVESTIGATED THE PARTIES AND
REPORTED TO CONGRESS AND TO THE PRESIDENT, AND ITS MEMBERS HAD
TESTIFIED BEFORE CONGRESSIONAL COMMITTEES CONCERNING THE LEGALITY OF
SUCH A PRICING SYSTEM.  AT LEAST SOME OF THE MEMBERS HAS DISCLOSED
THEIR OPINION THAT THE SYSTEM WAS ILLEGAL.  THE ISSUE OF BIAS WAS
BROUGHT HERE AND CONFRONTED "ON THE ASSUMPTION THAT SUCH AN OPINION HAD
BEEN FORMED BY THE ENTIRE MEMBERSHIP OF THE COMMISSION AS A RESULT OF
ITS PRIOR OFFICIAL INVESTIGATIONS."  ID., AT 700.     THE COURT
REJECTED THE CLAIM, SAYING: 

"(THE FACT THAT THE COMMISSION HAD ENTERTAINED SUCH VIEWS AS THE
RESULT OF ITS PRIOR EX PARTE INVESTIGATIONS DID NOT NECESSARILY MEAN
THAT THE MINDS OF ITS MEMBERS WERE IRREVOCABLY CLOSED ON THE SUBJECT OF
THE RESPONDENTS' BASING POINT PRACTICES.  HERE, IN CONTRAST TO THE
COMMISSION'S INVESTIGATIONS, MEMBERS OF THE CEMENT INDUSTRY WERE
LEGALLY AUTHORIZED PARTICIPANTS IN THE HEARINGS.  THEY PRODUCED
EVIDENCE--VOLUMES OF IT.  THEY WERE FREE TO POINT OUT TO THE COMMISSION
BY TESTIMONY, BY CROSS-EXAMINATION OF WITNESSES, AND BY ARGUMENTS,
CONDITIONS OF THE TRADE PRACTICES UNDER ATTACK WHICH THEY THOUGHT KEPT
THESE PRACTICES WITHIN THE RANGE OF LEGALLY PERMISSIBLE BUSINESS
ACTIVITIES."  ID., AT 701.  IN SPECIFIC RESPONSE TO A DUE PROCESS
ARGUMENT, THE COURT ASSERTED: 

" NO DECISION OF THIS COURT WOULD REQUIRE US TO HOLD THAT IT WOULD
BE A VIOLATION OF PROCEDURAL DUE PROCESS FOR A JUDGE TO SIT IN A CASE
AFTER HE HAD EXPRESSED AN OPINION AS TO WHETHER CERTAIN TYPES OF
CONDUCT WERE PROHIBITED BY LAW.  IN FACT, JUDGES FREQUENTLY TRY THE
SAME CASE MORE THAN ONCE AND DECIDE IDENTICAL ISSUES EACH TIME,
ALTHOUGH THESE ISSUES INVOLVE QUESTIONS BOTH OF LAW AND FACT. 
CERTAINLY, THE FEDERAL TRADE COMMISSION CANNOT POSSIBLY BE UNDER
STRONGER CONSTITUTIONAL COMPULSIONS IN THIS RESPECT THAN A COURT." 
ID., AT 702 - 703 (FOOTNOTE OMITTED). 

THIS COURT HAS ALSO RULED THAT A HEARING EXAMINER WHO HAS
RECOMMENDED FINDINGS OF FACT AFTER REJECTING CERTAIN EVIDENCE AS NOT
BEING PROBATIVE WAS NOT DISQUALIFIED TO PRESIDE AT FURTHER HEARINGS
THAT WERE REQUIRED WHEN REVIEWING COURTS HELD THAT THE EVIDENCE HAD
BEEN ERRONEOUSLY EXCLUDED.  NLRB V. DONNELLY GARMENT CO., 330 U.S. 219,
236 - 237 (1947).  THE COURT OF APPEALS HAD DECIDED THAT THE EXAMINER
SHOULD NOT AGAIN SIT BECAUSE IT WOULD BE UNFAIR TO REQUIRE THE PARTIES
TO TRY "ISSUES OF FACT TO THOSE WHO MAY HAVE PREJUDGED THEM...."  151
F.2D 854, 870 (CA 8 1945).  BUT THIS COURT UNANIMOUSLY REVERSED,
SAYING: 

" CERTAINLY IT IS NOT THE RULE OF JUDICIAL ADMINISTRATION THAT,
STATUTORY REQUIREMENTS APART...A JUDGE IS DISQUALIFIED FROM SITTING IN
A RETRIAL BECAUSE HE WAS REVERSED ON EARLIER RULINGS.  WE FIND NO
WARRANT FOR IMPOSING UPON ADMINISTRATIVE AGENCIES A STIFFER RULE,
WHEREBY EXAMINERS WOULD BE DISENTITLED TO SIT BECAUSE THEY RULED
STRONGLY AGAINST A PARTY IN THE FIRST HEARING."  DONNELLY GARMENT CO.,
SUPRA, AT 236 - 237. 

MORE RECENTLY WE HAVE SUSTAINED AGAINST DUE PROCESS OBJECTION A
SYSTEM IN WHICH A SOCIAL SECURITY EXAMINER HAS RESPONSIBILITY FOR
DEVELOPING THE FACTS AND MAKING A DECISION AS TO DISABILITY CLAIMS, AND
OBSERVED THAT THE CHALLENGE TO THIS COMBINATION OF FUNCTIONS "ASSUMES
TOO MUCH AND WOULD BRING DOWN TOO MANY PROCEDURES DESIGNED, AND WORKING
WELL, FOR A GOVERNMENTAL STRUCTURE OF GREAT AND GROWING COMPLEXITY." 
RICHARDSON V. PERALES, 402 U.S. 389, 410 (1971).  /16/ 

THAT IS NOT TO SAY THAT THERE IS NOTHING TO THE ARGUMENT THAT THOSE
WHO HAVE INVESTIGATED SHOULD NOT THEN ADJUDICATE.  THE ISSUE IS
SUVSTANTIAL, IT IS NOT NEW, AND LEGISLATORS AND OTHERS CONCERNED WITH
THE OPERATIONS OF ADMINISTRATIVE AGENCIES HAVE GIVEN MUCH ATTENTION TO
WHETHER AND TO WHAT EXTENT DISTINCTIVE ADMINISTRATIVE FUNCTIONS SHOULD
BE PERFORMED BY THE SAME PERSONS.  NO SINGLE ANSWER HAS BEEN REACHED. 
INDEED, THE GROWTH, VARIETY, AND COMPLEXITY OF THE ADMINISTRATIVE
PROCESSES HAVE MADE ANY ONE SOLUTION HIGHLY UNLIKELY.  WITHIN THE
FEDERAL GOVERNMENT ITSELF, CONGRESS HAS ADDRESSED THE ISSUE IN SEVERAL
DIFFERENT WAYS, PROVIDING FOR VARYING DEGREES OF SEPARATION FROM
COMPLETE SEPARATION OF FUNCTIONS TO VIRTUALLY NONE AT ALL.  /17/  FOR
THE GENERALITY OF AGENCIES, CONGRESS HAS BEEN CONTENT WITH SEC. 5 OF
THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. SEC. 554 (D), WHICH PROVIDES
THAT NO EMPLOYEE ENGAGED IN INVESTIGATING OR PROSECUTING MAY ALSO
PARTICIPATE OR ADVISE IN THE ADJUDICATING FUNCTION, BUT WHICH ALSO
EXPRESSLY EXEMPTS FROM THIS PROHIBITION "THE AGENCY OR A MEMBER OR
MEMBERS OF THE BODY COMPRISING THE AGENCY."  /18/ 

IT IS NOT SURPRISING, THEREFORE, TO FIND THAT "(THE CASE LAW, BOTH
FEDERAL AND STATE, GENERALLY REJECTS THE IDEA THAT THE COMBINATION (OF)
JUDGING (AND) INVESTIGATING FUNCTIONS IS A DENIAL OF DUE PROCESS...." 
2 K. DAVIS, ADMINISTRATIVE LAW TREATISE SEC. 13.02, P. 175 (1958). 
SIMILARLY, OUR CASES, ALTHOUGH THEY REFLECT THE SUBSTANCE OF THE
PROBLEM, OFFER NO SUPPORT FOR THE BALD PROPOSITION APPLIED IN THIS CASE
BY THE DISTRICT COURT THAT AGENCY MEMBERS WHO PARTICIPATE IN AN
INVESTIGATION ARE DISQUALIFIED FROM ADJUDICATING.  THE INCREDIBLE
VARIETY OF ADMINISTRATIVE MECHANISMS IN THIS COUNTRY WILL NOT YIELD TO
ANY SINGLE ORGANIZING PRINCIPLE. 

APPELLEE RELIES HEAVILY ON IN RE MURCHISON, SUPRA, IN WHICH A STATE
JUDGE, EMPOWERED UNDER STATE LAW TO SIT AS A "ONE-MAN GRAND JURY" AND
TO COMPEL WITNESSES TO TESTIFY BEFORE HIM IN SECRET ABOUT POSSIBLE
CRIMES, CHARGED TWO SUCH WITNESSES WITH CRIMINAL CONTEMPT, ONE FOR
PERJURY AND THE OTHER FOR REFUSING TO ANSWER CERTAIN QUESTIONS, AND
THEN HIMSELF TRIED AND CONVICTED THEM.  THIS COURT FOUND THE PROCEDURE
TO BE A DENIAL OF DUE PROCESS OF LAW NOT ONLY BECAUSE THE JUDGE IN
EFFECT BECAME PART OF THE PROSECUTION AND ASSUMED AN ADVERSARY
POSITION, BUT ALSO BECAUSE AS A JUDGE, PASSING ON GUILT OR INNOCENCE,
HE VERY LIKELY RELIED ON "HIS OWN PERSONAL KNOWLEDGE AND IMPRESSION OF
WHAT HAD OCCURRED IN THE GRAND JURY ROOM," AN IMPRESSION THAT "COULD
NOT BE TESTED BY ADEQUATE CROSS-EXAMINATION."  349 U.S., AT 138.  /19/ 

PLAINLY ENOUGH, MURCHINSON HAS NOT BEEN UNDERSTOOD TO STAND FOR THE
BROAD RULE THAT THE MEMBERS OF AN ADMINISTRATVE AGENCY MAY NOT
INVESTIGATE THE FACTS, INSTITUTE PROCEEDINGS, AND THEN MAKE THE
NECESSARY ADJUDICATIONS.  THE COURT DID NOT PROPOSE TO QUESTION THE
CEMENT INSTITUTE CASE, AUPRA, OR THE ADMINISTRATIVE PROCEDURE ACT AND
DID NOT LAY DOWN ANY GENERAL PRINCIPLE THAT A JUDGE BEFORE WHOM AN
ALLEGED CONTEMPT IS COMMITTED MAY NOT BRING AND PRESIDE OVER THE
ENSUING CONTEMPT PROCEEDINGS.  THE ACCEPTED RULE IS TO THE CONTRARY. 
UNGAR V. SARAFITE, 376 U.S. 575, 584 - 585 (1964); NILVA V. UNITED
STATES, 352 U.S. 385, 395 - 396 (1957). 

NOR IS THERE ANYTHING IN THIS CASE THAT COMES WITHIN THE STRICTURES
OF MURCHISON.  /20/ WHEN THE BOARD INSTITUTED ITS INVESTIGATIVE
PROCEDURES, IT STATED ONLY THAT IT WOULD INVESTIGATE WHETHER PROSCRIBED
CONDUCT HAD OCCURRED.  LATER IN NOTICING THE ADVERSARY HEARING, IT
ASSERTED ONLY THAT IT WOULD DETERMINE IF VIOLATIONS HAD BEEN COMMITTED
WHICH WOULD WARRANT SUSPENSION OF APPELLEE'S LICENSE.  WITHOUT DOUBT,
THE BOARD THEN ANTICIPATED THAT THE PROCEEDING WOULD WARRANT SUSPENSION
OF APPELLEE'S LICENSE.  WITHOUT DOUBT, THE BOARD THEN ANTICIPATED THAT
THE PROCEEDING WOULD EVENTUATE IN AN ADJUDICATION OF THE ISSUE; BUT
THERE WAS NO MORE EVIDENCE OF BIAS OR THE RISK OF BIAS OR PREJUDGMENT
THAN INHERED IN THE VERY FACT THAT THE BOARD HAD INVESTIGATED AND WOULD
NOT ADJUDICATE.  /21/ OF COURSE, WE SHOULD BE ALERT TO THE
POSSIBILITIES OF BIAS THAT MAY LURK IN THE WAY PARTICULAR PROCEDURES
ACTUALLY WORK IN PRACTICE.  THE PROCESSES UTILIZED BY THE BOARD,
HOWEVER, DO NOT IN THEMSELVES CONTAIN AN UNACCEPTABLE RISK OF BIAS. 
THE INVESTIGATIVE PROCEEDING HAD BEEN CLOSED TO THE PUBLIC, BUT
APPELLEE AND HIS COUNSEL WERE PERMITTED TO BE PRESENT THROUGHOUT;
COUNSEL ACTUALLY ATTENDED THE HEARINGS AND KNEW THE FACTS PRESENTED TO
THE BOARD.  /22/  NO SPECIFIC FOUNDATION HAS BEEN PRESENTED FOR
SUSPECTING THAT THE BOARD HAD BEEN PREJUDICED BY ITS INVESTIGATION OR
WOULD BE DISABLED FROM HEARING AND DECIDING ON THE BASIS OF THE
EVIDENCE TO BE PRESENTED AT THE CONTESTED HEARING.  THE MERE EXPOSURE
TO EVIDENCE PRESENTED IN NONADVERSARY INVESTIGATIVE PROCEDURES IN
INSUFFICIENT IN ITSELF TO IMPUGN THE FAIRNESS OF THE BOARD MEMBERS AT A
LATER ADVERSARY HEARING.  WITHOUT A SHOWING TO THE CONTRARY, STATE
ADMINISTRATORS "ARE ASSUMED TO BE MEN OF CONSCIENCE AND INTELLECTUAL
DISCIPLINE, CAPABLE OF JUDGING A PARTICULAR CONTROVERSY FAIRLY ON THE
BASIS OF ITS OWN CIRCUMSTANCES."  UNITED STATES V. MORGAN, 313 U.S.
409, 421 (1941). 

WE ARE OF THE VIEW, THEREFORE, THAT THE DISTRICT COURT WAS IN ERROR
WHEN IT ENTERED THE RESTRAINING ORDER AGAINST THE BOARD'S CONTESTED
HEARING AND WHEN IT GRANTED THE PRELIMINARY INJUNCTION BASED ON THE
UNTENABLE VIEW THAT IT WOULD BE UNCONSTITUTIONAL FOR THE BOARD TO
SUSPEND APPELLEE'S LICENSE "AT ITS OWN CONTESTED HEARING ON CHARGES
EVOLVING FROM ITS OWN INVESTIGATION ..... THE CONTESTED HEARING SHOULD
HAVE BEEN PERMITTED TO PROCEED. 

        IV 

NOR DO WE THINK THE SITUATION SUBSTANTIALLY DIFFERENT BECAUSE THE
BOARD, WHEN IT WAS PREVENTED FROM GOING FORWARD WITH THE CONTESTED
HEARING, PROCEEDED TO MAKE AND ISSUE FORMAL FINDINGS OF FACT AND
CONCLUSIONS OF LAW ASSERTING THAT THERE WAS PROBABLE CAUSE TO BELIEVE
THAT APPELLEE HAD ENGAGED IN VARIOUS ACTS PROHIBITED BY THE WISCONSIN
STATUTES.  /23/  THESE FINDINGS AND CONCLUSIONS WERE VERIFIED AND FILED
WITH THE DISTRICT ATTORNEY FOR THE PURPOSE OF INITIATING REVOCATION AND
CIRMINAL PROCEEDINGS.  ALTHOUGH THE DISTRICT COURT DID NOT EMPHASIZE
THIS ASPECT OF THE CASE BEFORE IT, APPELLEE STRESSED IT IN ATTEMPTING
TO SHOW PREJUDICE AND PREJUDGMENT.  WE ARE NOT PERSUADED 

JUDGES REPEATEDLY ISSUE ARREST WARRANTS ON THE BASIS THAT THERE IS
PROBABLE CAUSE TO BELIEVE THAT A CRIME HAS BEEN COMMITTED AND THAT THE
PERSON NAMED IN THE WARRANT HAS COMMITTED IT.  JUDGED ALSO PRESIDE AT
PRELIMINARY HEARINGS WHERE THEY MUST DECIDE WHETHER THE EVIDENCE IS
SUFFICIENT TO HOLD A DEFENDANT FOR TRIAL.  NEITHER OF THESE PRETRIAL
INVOLVEMENTS HAS BEEN THOUGHT TO RAISE ANY CONSTITUTIONAL BARRIER
AGAINST THE JUDGE'S PRESIDING OVER THE CRIMINAL TRIAL AND, IF THE TRIAL
IS WITHOUT A JURY, AGAINST MAKING THE NECESSARY DETERMINATION OF GUILT
OR INNOCENCE.  NOR HAS IT BEEN THOUGHT THAT A JUDGE IS DISQUALIFIED
FROM PRESIDING OVER INJUNCTION PROCEEDINGS BECAUSE HE HAS INITIALLY
ASSESSED THE FACTS IN ISSUING OR DENYING A TEMPORARY RESTRAINING ORDER
OR A PRELIMINARY INJUNCTION.  IT IS ALSO VERY TYPICAL FOR THE MEMBERS
OF ADMINISTRATIVE AGENCIES TO RECEIVE THE RESULTS OF INVESTIGATIONS, TO
APPROVE THE FILING OF CHARGES OR FORMAL COMPLAINTS INSTITUTING
ENFORCEMENT PROCEEDINGS, AND THEN TO PARTICIPATE IN THE ENSUING
HEARINGS.  THIS MODE OF PROCEDURE DOES NOT VIOLATE THE ADMINISTRATIVE
PROCEDURE ACT, AND IT DOES NOT VIOLATE DUE PRECESS OF LAW.  /24/ WE
SHOULD ALSO REMEMBER THAT IT IS NOT CONTRARY TO DUE PROCESS TO ALLOW
JUDGES AND ADMINISTRATORS WHO HAVE HAD THEIR INITIAL DECISIONS REVERSED
ON APPEAL TO CONFRONT AND DECIDE THE SAME QUESTIONS A SECOND TIME
AROUND.  SEE CEMENT INSTITUTE, 333 U.S. AT 702 - 703; DONNELLY GARMENT
CO., 330 U.S., AT 236 - 237. 

HERE, THE BOARD STAYED WITHIN THE ACCEPTED BOUNDS OF DUE PROCESS. 
HAVING INVESTIGATED, IN ISSUED FINDINGS AND CONCLUSIONS ASSERTING THE
COMMISSION OF CERTAIN ACTS AND ULTIMATELY CONCLUDING THAT THERE WAS
PROBABLE CAUSE TO BELIEVE THAT APPELLEE HAD VIOLATED THE STATUTES. 

THE RISK OF BIAS OR RREJUDGMENT IN THIS SEQUENCE OF FUNCTIONS HAS
NOT BEEN CONSIDERED TO BE INTOLERABLY HIGH OR TO RAISE A SUFFICIENTLY
GREAT POSSIBILITY THAT THE ADJUDICATORS WOULD BE SO PSYCHOLOGICALLY
WEDDED TO THEIR COMPLAINTS THAT THEY WOULD CONSCIOUSLY OR UNCONSCIOUSLY
AVOID THE APPEARANCE OF HAVING ERRED OR CHANGED POSITION.  INDEED, JUST
AS THERE IS NO LOGICAL INCONSISTENCY BETWEEN A FINDING OF PROBABLE
CAUSE AND AN ACQUITTAL IN A CRIMINAL PROCEEDING, THERE IS NO
INCOMPATIBILITY BETWEEN THE AGENCY FILING A COMPLAINT BASED ON PROBABLE
AND A SUBSEQUENT DECISION, WHEN ALL THE EVIDENCE IS IN, THAT THERE HAS
BEEN NO VIOLATION OF THE STATUTE.  HERE, IF THE BOARD NOW PROCEEDED
AFTER AN ADVERSARY HEARING TO DETERMINE THAT APPELLEE'S LICENSE TO
PRACTICE SHOULD NOT BE TEMPORARILY SUSPENDED, IT WOULD NOT IMPLICITLY
BE ADMITTING ERROR IN ITS PRIOR FINDING OF PROBABLE CAUSE.  ITS
POSITION MOST PROBABLY WOULD MERELY REFLECT THE BENEFIT OF A MORE
COMPLETE VIEW OF THE EVIDENCE AFFORDED BY AN ADVERSARY HEARING. 

THE INITIAL CHARGE OR DETERMINATION OF PROBABLE CAUSE AND THE
ULTIMATE ADJUDICATION HAVE DIFFERENT BASSS AND PURPOSES.  THE FACT THAT
THE SAME AGENCY MAKES THEM IN TANDEM AND THAT THEY RELATE TO THE SAME
ISSUES DOES NOT RESULT IN A PROCEDURAL DUE PROCESS VIOLATION.  CLEARLY,
IF THE INITIAL VIEW OF THE FACTS BASED ON THE EVIDENCE DERIVED FROM
NONADVERSARIAL PROCESSES AS A PRACTICAL OR LEGAL MATTER FORECLOSED FAIR
AND EFFECTIVE CONSIDERATION AT A SUBSEQUENT ADVERSARY HEARING LEADING
TO ULTIMATE DECISION, A SUBSTANTIAL DUE PROCESS QUESTION WOULD BE
RAISED.  BUT IN OUR VIEW, THAT IS NOT THIS CASE.  /25/ 

THAT THE COMBINATION OF INVESTIGATIVE AND ADJUDICATIVE FUNCTIONS
DOES NOT, WITHOUT MORE, CONSTITUTE A DUE PROCESS VIOLATION, DOES NOT,
OF COURSE, PRECLUDE A COURT FROM DETERMINING FROM THE SPECIAL FACTS AND
CIRCUMSTANCES PRESENT IN THE CASE BEFORE IT THAT THE RISK OF UNFAIRNESS
IS INTOLERABLY HIGH.  FINDINGS OF THAT KIND MADE BY JUDGES WITH SPECIAL
INSIGHTS INTO LOCAL REALITYES ARE ENTITLED TO RESPECT, BUT INJUNCTIONS
RESTING ON SUCH FACTORS SHOULD BE ACCOMPANIED BY AT LEAST THE MINIMUM
FINDINGS REQUIRED BY RULES 52 (A) AND 65 (D).  /26/     THE JUDGMENT OF
THE DISTRICT COURT IS REVERSED AND THE DASE IS REMANDED TO THAT COURT
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

                                  SO ORDERED. 

/1/ " NO PERSON SHALL PRACTICE OR ATTEMPT OR HOLD HIMSELF OUT AS
AUTHORIZED TO PRACTICE MEDICINE, SURGERY, OR OSTEOPATHY, OR ANY OTHER
SYSTEM OF TREATING THE SICK AS THE TERM 'TREAT THE SICK' IS DEFINED IN
S. 445.01(1)(A), WITHOUT A LICENSE OR CERTIFICATE OF REGISTRATION FROM
THE EXAMINING BOARD, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY
STATUTE."  WIS.  STAT. ANN. SEC. 448.22(1). 

" THE EXAMINING BOARD SHALL INVESTIGATE, HEAR AND ACT UPON PRACTICES
BY PERSONS LICENSED TO PRACTICE MEDICINE AND SURGERY UNDER S. 488.06,
THAT ARE INIMICAL TO THE PUBLIC HEALTH.  THE EXAMINING BOARD SHALL HAVE
THE POWER TO WARN AND TO REPRIMAND, WHEN IT FINDS SUCH PRACTICE, AND TO
INSTITUTE CRIMINAL ACTION OR ACTION TO REVOKE LICENSE WHEN IT FINDS
PROBABLE CAUSE THEREFOR UNDER CRIMINAL OR REVOCATION STATUTE, AND THE
ATTORNEY GENERAL MAY AID THE DISTRICT ATTORNEY IN THE PROSECUTION
THEREOF."  SEC.  448.17. 

" A LICENSE OR CERTIFICATE OF REGISTRATION MAY BE TEMPORARILY
SUSPENDED BY THE EXAMINING BOARD, WITHOUT FORMAL PROCEEDINGS, AND ITS
HOLDER PLACED ON PROBATION FOR A PERIOD NOT TO EXCEED 3 MONTHS WHERE HE
IS KNOWN OR THE EXAMINING BOARD HAS GOOD CAUSE TO BELEIVE THAT SUCH
HOLDER HAS VIOLATED SUB. (1).  THE EXAMINING BOARD SHALL NOT HAVE
AUTHORITY TO SUSPEND A LICENSE OR CERTIFICATE OF REGISTRATION, OR TO
PLACE A HOLDER ON PROBATION, FOR MORE THAT 2 CONSECUTIVE 3-MONTH
PERIODS.. ALL EXAMING BOARD ACTIONS UNDER THIS SUBSECTION SHALL BE
SUBJECT TO REVIEW UNDER CH. 22(."  SEC.  448.18(7). 

PERSON LICENSED TO PRACTICE OR DETREMENTAL TO THE BEST INTERESTS OF THE
PUBLIC."  FEE SPLITTING IS PROSCRIBED BY SEC. 448.23(1).  SECTION
448.02(4) REGULATES THE USE OF A MAME BY A PHYSICIAN IN HIS PRACTICE
OTHER THAN THE NAME UNDER WHICH HE WAS LICENSED. 

APPELLEE MAINTAINS THAT HE HAS LEGAL AND FACTUAL DEFENSES TO ALL
CHARGES MADE AGAINST HIM.  BRIEF FOR APPELLEE 28 - 29, N. 13. 

/2/ THE NOTICE INDICATED THAT THE HEARING WOULD BE HELD "TO
DETERMINE WHETHER THE LICENSE HAS ENGAGED N PRACTICES THAT ARE INIMICAL
TO THE PUBLIC HEALTH, WHETHER HE HAS ENGAGED IN CONDUCT UNBECOMING A
PERSON LICENSED TO PRACTICE MEDICINE, AND WHETHER HE HAS ENGAGED IN
CONDUCT DETRIMENTAL TO THE PUBLIC."  APP.  14. 

/3/ APART FROM HIS CLAIM THAT THE TRIBUNAL AT THE CONTESTED HEARING
WOULD BE BIASED, APPELLEE HAS NOT CONCEDED THAT THAT HEARING WOULD NOT
BE A FULL ADVERSARY PROCEEDING.  SEE WIS. STAT. ANN. SEC. 227.07 -
227.21.  SEE ALSO DALY V. NATURAL RESOURCES BOARD, 60 WIS. 2D 208,
218,208 N. W. 839, 844 (1973), CERT. DENIED, 414, U.S. 1137 (1974);
MARGOLES V. STATE BOARD OF MEDICAL EXAMINERS, 47 WIS. 2D 499, 508 -
511, 177 N.W. 2D 353, 358 - 359 (1970).  NO ISSUE HAS BEEN RAISED
CONCERNING THE CIRCUMSTANCES, IF ANY, IN WHICH THE BOARD COULD SUSPEND
A LICENSE WITHOUT FIRST HOLDING AND ADVERSARY HEARING. 

/4/ THE NOTICE STATED THAT THE HEARING WOULD BE HELD "TO DETERMINE
WHETHER THE LICENSEE HAS PRACTICED MEDICINE IN THE STATE OF WISCONSIN
UNDER ANY OTHER CHRISTIAN OR GIVEN NOME OR ANY OTHER SURNAME THAN THAT
UNDER WHICH HE WAS ORIGINALLY LICENSED OR REGISTERED TO PRACTICE
MEDICINE IN THIS STATE, WHICH PRACTICING HAS OPERATED TO UNFAIRLY
COMPETE WITH ANOTHER PRACTITIONER, TO MISLEAD THE PUBLIC AS TO
IDENTITY, OR TO OTHERWISE RESULT IN DETRIMENT TO THE PROFESSION OR THE
PUBLIC, AND MORE PARTICULARLY, WHETHER THE SAID DUANE LARKIN, M.D., HAS
PRACTICED MEDICINE IN THIS STATE SINCE SEPTMEBER 1, 1971, UNDER THE
NAME OF GLEN JOHNSON."  IT WOULD ALSO "DETERMINE WHETHER THE LICENSE
HAS PERMITTED PERSONS TO PRACTICE MEDICINE IN THIS STATE IN VIOLATION
OF SEC. 448.02(1), STATS., MORE PARTICULARLY WHETHER THE SAID DUANE
LARKIN, M.D., PERMITTED YOUND WAHN AHN, M.D., AN UNLICENSED PHYSICIAN,
TO PERFORM ABORTIONS AT HIS ABORTION CLINIC DURING THE YEAR 1972." 
FINALLY THE BOARD WOULD "DETERMINE WHETHER THE SAID DUANE LARKIN, M.D.,
SPLIT FEES WITH OTHER PERSONS DURING THE YEARS 1971, 1972, AND 1973 IN
VIOLATION OF SEC. 448.23(1)."  APP.  45 - 46. 

/5/ APPELLEE UNSUCCESSFULLY SOUGHT A TEMPORARY RESTRAINING ORDER
AGAINST THIS HEARING.  SEE RECORD ON APPEAL, ENTRY 21. 

/6/ THE MODIFIED JUDGMENT READS AS FOLLOWS: 

" IT IS ORDERED AND ADJUDGED THAT THE DEFENDANTS ARE PRELIMINARILY
ENJOINED UNTIL FURTHER NOTICE FROM UTILIZING THE PROVISIONS OF SEC.
448.18(7), WIS. STATS, AGAINST THE PLAINTIFF WOULD SUFFER IRREPARABLE
INJURY IF SAID STATUTE WERE TO BE APPLED AGAINST HIM, AND THAT THE
PLAINTIFF'S CHALLENGE TO THE CONSTITUTIONALITY OF SAID STATUTE HAS A
HIGH LIKELIHOOD OF SUCCESS."  SUGGESTION OF MOOTNESS OR IN THE
ALTERNATIVE MOTION TO RECONSIDER APPELLEE'S MOTION TO DISMISS OR AFFIRM
21 - 22. 

/7/ SEE N. 6, SUPRA. 

/8/ APPELLANTS CONTEND IN ADDITION THAT APPELLEE'S MOTION FOR A
TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF DID NOT STATE WITH
PARTICULARITY THE GROUNDS FOR SUCH RELIEF AS REQUIRED BY FED. RULE CIV.
PROC. 7(B), AND THAT THE MOTION WENT BEYOND THE SUBJECT MATTER OF THE
ACTION SINCE THE AMENDED COMPLAINT CHALLENGED ONLY THE CONDUCTING OF
THE EX PARTE INVESTIGATIVE HEARING BY THE BOARD.  OUR REVIEW OF THE
RECORD LEADS US TO THE CONCLUSION THAT WHATEVER DEFICIENCIES APPELLEE'S
MOTION MIGHT HAVE HAD, THEY ARE INSUFFICIENT TO REQUIRE REVERSAL OF THE
DISTRICT COURT DECISION GIVING INJUNCTIVE RELIEF.  WE ALSO FIND THAT
THE MOTION WAS WITHIN THE SUBJECT MATTER OF THE CASE AS DEFINED GY THE
AMENDED COMPLAINT.  SEE APP. 23. 

APPELLANTS ALSO CONTEND THAT APPELLEE OFFERED NO EVIDENCE UPON WHICH
INJUNCTIVE RELIEF COULD BE BASED.  THIS CASE, HOWEVER, TURNS UPON
QUESTIONS OF LAW AND NOT UPON COMPLICATED FACTUAL ISSUES, AND THE
DISTRICT COURT HAS FOUND BOTH THAT APPELLEE'S CHALLENGE TO SEC.
448.18(7) HAS A HIGH LIKELIHOOD OF SUCCESS ON THE MERITS AND THAT
APPELLEE WOULD BE IRREPARABLY INJURED ABSENT INJUNCTIVE RELIEF.  IF THE
DISTRICT COURT IS CORRECT IN ITS CONSTITUTIONAL PREMISE THEN AN AGENCY
WHICH HAS INVESTIGATED POSSIBLE OFFENSES CANNOT FAIRLY ADJUDICATE THE
LEGAL AND FACTUAL ISSUES INVOLVED, THEN ITS CONCLUSION THAT APPELLEE
WOULD SUFFER IRREPARABLE INJURY BY HAVING HIS LICENSE TEMPORARILY
SUSPENDED BY SUCH AN AGENCY IS NOT IRRATIONAL, AND WE WILL NOT DISTURB
IT.  CF. GIBSON V. BERRYHILL, 411 U.S. 564, 577 N. 16 (1973). 

FINALLY, WE DO NOT AGREE WITH APPELLANTS' CONTENTION THAT THE
DISTRICT COURT SHOULD HAVE ENTIRELY REFRAINED FROM DECIDING THE MERITS
OF THIS CASE AND FROM INTERFERING WITH THE STATE ADMINISTRATIVE
PROCEEDING.  GIBSON V. BERRYHILL, SUPRA, AT 575 - 577. 

/9/ " IN ADDITION, THE PLAINTIFF REQUESTS THAT THE MODIFIED JUDGMENT
SHOULD RECITE SPECIFIC GROUNDS NOT PREVIOUSLY INCLUDED IN THE JUDGMENT
BUT CONTAINED IN THE EARLIER MEMORANDUM DECISION OF THIS COURT.... WE
CONCLUDE THAT THE PLAINTIFF'S POSITION IS WELL TAKEN."  SUGGESTION OF
MOOTNESS OR IN THE ALTERNATIVE MOTION TO RECONSIDER APPELLEEHS MOTION
TO DISMISS OR AFFIRM 19. 

/10/ SEE N. 6, SUPRA. 

/11/ SEE SCHMIDT V. LESSARD, 414 U.S. 473, 476 - 477 (1974); GUNN V.
UNIVERSITY COMMITTEE, 399 U.S. 383, 388 - 389 (1973). 

/12/ EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO
THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION,
SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

UNDER 28 U.S.C. SEC. 2281 ADN 2284, A THREE-JUDGE DISTRICT COURT IS
REQUIRED FOR ENTERING A PRELIMINARY OR PERMANENT INJUNCTION AGAINST THE
ENFORCEMENT OF A STATE STATUTE ON THE GROUNDS OF THE
UNCONSTITUTIONALITY OF THE LAW.  THAT REQUIREMENT INCLUDED PRELIMINARY
INJUNCTIONS AGAINST ENFORCEMENT OF STATE STATUTES BASED ON "A HIGH
LIKELIHOOD OF SUCCESS" OF THE CONSTITUTIONAL CHALLENGE TO THE
STATUTES.  SEE BROWN V. CHOTE, 411 U.S. 452 (1973); GOLDSTEIN V. COX,
396 U.S. 471 (1970); MAYO V. LAKELAND HIGHLANDS CANNING CO., 309 U.S.
310 (1940). 

/13/ AFTER THE DISTRICT COURT MADE ITS DECISION, THE BOARD ALTERED
ITS PROCEDURES.  IT NOW ASSIGNS EACH NEW CASE TO ONE OF THE MEMBERS FOR
INVESTIGATION, AND THE REMAINDER OF THE BOARD HAS NO CONTACT WITH THE
INVESTIGATIVE PROCESS.  AFFIDAVIT OF JOHN W. RUPEL, M.D., SUGGESTION OF
MOOTNESS OR IN THE ALTERNATIVE MOTION TO RECONSIDER APPELLEE'S MOTION
TO DISMISS OR AFFIRM 7.  THAT CHANGE, DESIGNED TO ACCOMMODATE THE
BOARD'S PROCEDURES TO THE DISTRICT COURT'S DECISION, DOES NOT AFFECT
THIS CASE. 

/14/ GIBSON V. BERRYHILL, 411 U.S., AT 579; WARD V. VILLAGE OF
MONROEVILLE, 409 U.S. 57 (1972); TUMEY V. OHIO, 273 U.S. 510 (1927). 
CF COMMONWEALTH COATINGS CORP. V. CONTINENTAL CASUALTY CO., 393 U.S.
145 (1968). 

/15/ TAYLOR V. HAYES, 418 U.S. 488, 501 - 503 (1974); MAYBERRY V.
PENNSYLVANIA, 400 U.S. 455 (1971); PICKERING V. BOARD OF EDUCATION, 391
U.S. 563, 578 - 579, N. 2 (1968).  CF. UNGAR V. SARAFITE, 376 U.S. 575,
584 (1964). 

/16/ THE DECISIONS OF THE COURTS OF APPEALS TOUCHING UPON THIS
QUESTION OF BIAS ARISING FROM A COMBINATION OF RUNCTIONS ARE ALSO
INSTRUCTIVE.  IN PANGBURN V. CAB, 311 F.2D 349 (CA1 1962), THE BOARD
HAD THE RESPONSIBILITY OF MAKING AN ACCIDENT REPORT AND ALSO REVIEWING
THE DECISION OF A TRIAL EXAMINER THAT THE PILOT RATING SUSPENDED.  THE
PILOT CLAIMED THAT HIS RIGHT TO PROCEDURAL DUE PROCESS HAD BEEN
VIOLATED BY THE FACT THAT THE BOARD WAS NOT AN IMPARTIAL TRIBUNAL IN
DECIDING HIS APPEAL FROM THE TRIAL EXAMINER'S DECISION SINCE IT HAD
PREVIOUSLY ISSUED ITS ACCIDENT REPORT FINDING PILOT ERROR TO BE THE
PROBABLE CAUSE OF THE CRASH.  THE COURT OF APPEALS FOUND THE BOARD'S
PROCEDURES TO BE CONSTITUTIONALLY PERMISSIBLE: 

"(WE CANNOT SAY THAT THE MERE FACT THAT A TRIBUNAL HAS HAS CONTACT
WITH A PARTICULAR FACTUAL COMPLES IN A PRIOR HEARING, OR INDEED HAS
TAKEN A PUBLIC POSITION ON THE FACTS, IS ENOUGH TO PLACE THAT TRIBUNAL
UNDER A CONSTITUTIONAL INHIBITION TO PASS UPON THE FACTS IN A
SUBSEQUENT HEATING.  WE BELIEVE THAT MORE IS REQUIRED.  PARTICULARLY IS
THIS SO IN THE INSTANT CASE WHERE THE BOARD'S PRIOR CONTACT WITH THE
CASE RESULTED FROM ITS FOLLOWING THE CONGRESSIONAL MANDATE TO
INVESTIGATE AND REPORT THE PROBABLE CAUSE OF ALL CIVIL AIR ACCIDENTS." 
ID., AT 358.  SEE ALSO DUFFIELD V. CHARLESTON AREA MEDICAL CENTER,
INC., 503 F.2D 512 (CA 4 1974); KENNECOTT COPPER CORP. V. FTC, 467 F.2D
67, 79 - 80 (CA 10 1972), CERT. DENIED, 416 U.S. 909 (1974);
INTERCONTINENTAL INDUSTRIES V. AMERICAN STOCK EXCHANGE, 452 F.2D 935
(CA 5 1971), CERT. DENIED, 409 U.S. 842 (1972); FTC V. CINDERELLA CAREE
& FINISHING SCHOOLS, INC., 131 U.S. APP. D.C. 331, 338, 404 F.2D 1308,
1315 (1968); SKELLY OIL CO. V. FPC, 375 F.2D 6, 17 - 18 (CA 10 1967),
MODIFIED ON OTHER GROUNDS SUB NOM.  PERMIAN BASIN AREA RATE CASES, 390
U.S. 747 (1968); SAFEWAY STORES, INC. V. FTC, 366 F.2D 795, 801 - 802
(CA 9 1966), CERT. DENIED, 386 U.S. 932 (1967); R.A. HOLMAN & CO. V.
SEC, 366 F.2D 446, 452 - 453 (CA 2 1966), CERT. DENIED, 389 U.S. 991
(1967); SEC V. R.A. HOLMAN & CO., 116 U.S. APP. D.C. 279, 323 F.2D 284,
CERT. DENIED, 375 U.S. 943 (1963). 

THOSE CASES IN WHICH DUE PROCESS VIOLATIONS HAVE BEEN FOUND ARE
CHARACTERIZED BY FACTORS NOT PRESENT IN THE RECORD BEFORE US IN THIS
LITIGATION, AND WE NEED NOT PASS UPON AMERICAN CYANIMID CO. V. FTC, 363
F.2D 757 (CA 6 1966), ONE OF THE COMMISSIONERS HAD PREVIOUSLY SERVED
ACTIVELY AS COUNSEL FOR A SENATE SUBCOMMITTEE INVESTIGATING MANY OF THE
SAME FACTS AND ISSUES BEFORE THE COMMISSION FOR CONSIDERATION.  IN
TEXACO, INC. V. FTC, 118 U.S. APP. D.C. 366, 336 F.2D 754 (1964),
VACATED ON OTHER GROUNDS, 381 U.S. 739 (1965), THE COURT FOUND THAT A
SPEECH MADE BY A COMMISSIONER CLEARLY INDICATED THAT HE HAD ALREADY TO
SOME ESTENT REACHED A DECISION AS TO MATTERS PENDING BEFORE THE
COMMISSION.  SEE ALSO CINDERELLA CAREER & FINISHING SCHOOLS, INC. V.
FTC, 138 U.S. APP. D.C. 152, 158 - 161, 425 F.2D 583, 589 - 592
(1970).  AMOS TREAT & CO. V. SEC, 113 U.S. APP. D.C. 100, 306 F.2D 260
(1962), PRESENTED A SITUATION IN WHICH ONE OF THE MEMBERS OF THE
COMMISSION HAD PREVIOUSLY PARTICIPATED AS AN EMPLOYEE IN THE
INVESTIGATION OF CHARGES PENDING BEFORE THE COMMISSION.  IN TRANS WORLD
AIRLINES V. CAB, 102 U.S. APP. D.C. 391, 254 F.2D 90 (1958), A
COMMISSIONER HAD SIGNED A BRIEF IN BEHALF OF ONE OF THE PARTIES IN THE
PROCEEDINGS PRIOR TO ASSUMING MEMBERSHIP ON THE BOARD.  SEE ALSO KING
V. CEASAR RODENY SCHOOL DISTRICT, 380 F. SUPP. 1112 (DEL. 1974). 

FOR STATE COURT DECISIONS DEALING WITH ISSUES SIMILAR TO THOSE
INVOLVED IN THIS CASE, SEE KOELLING V. BOARD OF TRUSTEES, 259 IOWA
1185, 146 N.W. 2D 284 (1966); STATE V. BOARD OF MEDICAL EXAMINERS, 135
MONT. 381, 339 P. 2D 981 (1959); BOARD OF MEDICAL EXAMINERS V. STEWARD,
203 MD. 574, 102 A. 2D 248 (1954).  SEE ALSO LE BOW V. OPTOMETRY
EXAMINING BOARD, 52 WIS. 2D 569, 575, 191 N.W. 2D 47, 50 (1971);
KACHIAN V. OPTOMETRY EXAMINING BOARD, 44 WIS. 2D 1, 13, 170 N.W. 2D
743, 749 (1969). 

/17/ SEE 2 K. DAVIS, ADMINISTRATIVE LAW TRESTIE SEC. 13.04 (1958);
K. DAVIS, ADMINISTRATIVE LAW TREATISE SEC. 11.14 (1973 SUPP.). 

/18/ THE STATUTE PROVIDES IN PERTINENT PART:  " AN EMPLOYEE OF AGENT
ENGAGED IN THE PERFORMANCE OF INVESTIGATIVE OR PROSECUTING FUNCTIONS
FOR AN AGENCY IN A CASE MAY NOT, IN THAT OR A FACTUALLY RELATED CASE,
PARTICIPATE OR ADVISE IN THE DECISION, RECOMMENDED DECISION, OR AGENCY
REVUEW PURSUANT TO SECTION 557 OF THIS TITLE, EXCEPT AS WITNESS OR
COUNSEL IN PUBLIC PROCEEDINGS.  THIS SUBSECTION DOES NOT APPLY--, 

"(A) IN DETERMINING APPLICATIONS FOR INITIAL LICENSES; 

"(B) TO PROCEEDINGS INVOLVING THE VALIDITY OR APPLICATION OR RATES,
FACILITIES, OR PRACTICES OF PUBLIC UTILITIES OR CARRIERS; OR     "(C)
TO THE AGENCY OR A MEMBER OR MEMBERS OF THE BODY COMPRISING THE
AGENCY."  SEE ALSO 2 K. DAVIS, SUPRA, SEC. 13.06 - 13.07 (1958). 

/19/ APPELLEE ALSO RELIES UPON STATEMENTS MADE BY THE COURT IN
PICKERING V. BOARD OF EDUCATION, 391 U.S., AT 578 - 579, N. 2.  IN THAT
CASE, HOWEVER, UNLIKE THE PRESENT ONE, "THE TRIER OF FACT WAS THE SAME
BODY THAT WAS ALSO BOTH THE VICTIM OF APPELLANT'S STATEMENTS AND THE
PROSECUTOR THAT BROUGHT THE CHARGES AIMED AT SECURING HIS DISMISSAL." 
IBID.  IN ANY EVENT, THE COURT DID NOT ANALYZE THE QUESTION RAISED BY
THIS CASE BECAUSE THE APPELLANT IN PICKERING HAD NOT RAISED A DUE
PROCESS CONTENTION IN THE STATE PROCEEDINGS. 

THE QUESTION OF THE CONSTITUTIONALITY OF COMBINING IN ONE AGENCY
BOTH INVESTIGATIVE AND ADJUDICATIVE FUNCTIONS IN THE SAME PROCEEDING
WAS RAISED BUT DID NOT REQUIRE ANSWERING IN GIBSON V. BERRYHILL, 411
U.S., AT 579 N. 17. 

/20/ IT IS ASSERTED BY APPELLANTS, BRIEF FOR APPELLANTS 25 N. 9, AND
NOT DENIED BY APPELLEE THAT AN AGENCY EMPLOYEE PERFORMED THE ACTUAL
INVESTIGATION AND GATHERING OF EVIDENCE IN THIS CASE AND THAT AN
ASSISTANT ATTORNEY GENERAL THEN PRESENTED THE EVIDENCE TO THE BOARD AT
THE INVESTIGATIVE HEARINGS.  WHILE NOT ESSENTIAL TO OUR DECISION
UPHOLDING THE CONSTITUTIONALITY OF THE BOARD'S SEQUENCE OF FUNCTIONS,
THESE FACTS, IF TRUE, SHOW THAT THE BOARD HAD ORGANIZED ITSELF
INTERNALLY TO MINIMIZE THE RISKS ARISING FROM COMBINING INVESTIGATION
AND ADJUDICATION, INCLUDING THE POSSIBILITY OF BOARD MEMBERS RELYING AT
LATER SUSPENSION HEARINGS UPON EVIDENCE NOT THEN FULLY SUBJECT TO
EFFECTIVE CONFRONTATION. 

/21/ APPELLEE DOES CLAIM THAT STATE OFFICIALS HARASSED HIM WITH
LITIGATION BECAUSE HE PERFORMED ABORTIONS.  BRIEF FOR APPELLEE 8 - 9. 
HE ALSO HAS COMPLAINED "ABOUT THE NOTRIETY OF HIS CASE DURING THE
'SECRET' (BOARD) PROCEEDINGS."  ID., AT 20 N. 8.  THE DISTRICT COURT
MADE NO FINDINGS WITH RESPECT TO THESE ALLEGATIONS, AND THE RECORD DOES
NOT PROVIDE A BASIS FOR FINDING AS AN INITIAL MATTER HERE THAT THERE
WAS EVIDENCE OF ACTUAL BIAS OR PREJUDGMENT ON THE PART OF APPELLANTS. 

/22/ AFTER THE INITIAL INVESTIGATIBE HEARING, APPELLEE WAS ALSO
GIVEN THE OPPORTUNITY TO APPEAR BEFORE THE BOARD TO "EXPLAIN" THE
EVIDENCE THAT HAD BEEN PRESENTED TO IT. APP. 37. 

/23/ SEE SUPRA, AT 41 - 42. 

/24/ THE ACT DOES NOT AND PROBABLY SHOULD NOT FORBID THE COMBINATION
WITH JUDGING OF INSTITUTING PROCEEDINGS, NEGOTIATING SETTLEMENTS, OR
TESTIFYING.  WHAT HEADS OF AGENCIES DO IN APPROVING THE INSTITUTION OF
PROCEEDINGS IS MUCH LIKE WHAT JUDGES DO IN RULING ON DEMURRERS OR
MOTIONS TO DISMISS.  WHEN THE SAME EXAMINER CONDUCTS A PRE-HEARING
CONFERENCE AND THEN PRESIDES AT THE HEARING, THE HARM, IF ANY, IS
SLIGHT, AND IT PROBABLY GOES MORE TO IMPAIRMENT OF EFFECTIVENESS IN
MEDIATION THAN TO CONTAMINATION OF JUDGING.  IF DECIDING OFFICERS MAY
CONSULT STAFF SPECIALISTS WHO HAVE NOT TESTIFIED, THEY SHOULD BE
ALLOWED TO CONSULT THOSE WHO HAVE TESTIFIED; THE NEED HERE IS NOT FOR
PROTECTION AGAINST CONTAMINATION BUT IS ASSURANCE OF APPROPRIATE
OPPORTUNITY TO MEET WHAT IS CONSIDERED."  2 K. DAVIS, ADMINISTRATIVE
LAW TREATISE SEC. 13.11, P. 249 (1958). 

/25/ QUITE APART FROM PRECEDENTS AND CONSIDERATIONS CONCERNING THE
CONSTITUTIONALITY OF A COMBINATION OF FUNCTIONS IN ONE AGENCY, THE
DISTRICT COURT RESTED ITS DECISION UPON GAGNON V. SCARPELLI, 411 U.S.
778 (1973), AND MORRISSEY V. BREWER, 408 U.S. 471 (1972).  THESE
DECISIONS, HOWEVER, POSE A VERY DIFFERENT QUESTION.  EACH HELD THAT
WHEN REVIEW OF AN INITIAL DECISION IS MANDATED, THE DECISIONMAKER MUST
BE OTHER THAN THE ONE WHO MADE THE DECISION UNDER REVIEW.  GAGNON,
SUPRA, AT 785 - 786; MORRISSEY, SUPRA, AT 485 - 486; SEE ALSO GOLDBERG
V. KELLY, 397 U.S. 254, 271 (1970).  ALLOWING A DECISIONMAKER TO REVIEW
AND EVALUATE HIS OWN PRIOR DECISIONS RAISES PROBLEMS THAT ARE NOT
PRESENT HERE.  UNDER THE CONTROLLING STATUTES, THE BOARD IS AT NO POINT
CALLED UPON TO REVIEW ITS OWN PRIOR DECISIONS. 

/26/ THE DISTRICT COURT NOTED THAT THE BOARD HAD PRESENTED ITS
FINDINGS OF FACT AND CONCLUSIONS OF LAW TO THE DISTRICT ATTORNEY FOR
THE PURPOSE OF INITIATING ANY APPROPRIATE REVOCATION OR CRIMINAL
PROCEEDINGS, 368 F. SUPP., AT 798, BUT MADE LITTLE OF IT AND APPARENTLY
DID NOT DEEM THE TRANSMITTAL TO A THIRD PARTY CRITICAL IN LIGHT OF
"LOCAL REALITIES."  SEE GIBSON V. BERRYHILL, 411 U.S., AT 579.  THE
DISTRICT COURT IS, OF COURSE, FREE TO GIVE FURTHER ATTENTION TO THIS
ISSUE UPON REMAND. 

BETTY R. BROWN, SOLICITOR GENERAL OF WISCONSIN, ARGUED THE CAUSE FOR
APPELLANTS.  WITH HER ON THE BRIEF WERE ROBERT W. WARREN, ATTORNEY
GENERAL, AND LEROY L. DALTON, ASSISTANT ATTORNEY GENERAL. 

ROBERT H. FRIEVERT ARGUED THE CAUSE AND FILED BRIEF FOR APPELLEE. 
..END :








TRAIN, ADMINISTRATOR, RESOURCES DEF, COUNCIL, 421 U.S. 60 


       TRAIN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, ET

           AL. V. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

NO. 73 - 1742.  ARGUED JANUARY 15, 1975 -- DECIDED APRIL 16,

           1975.  489 F.2D 390, REVERSED AND REMANDED. 


    UNDER THE CLEAN AIR ACT AMENDMENTS OF 1970, WHICH ESTABLISH A

  PROGRAM FOR CONTROLLING AIR POLLUTION, THE ENVIRONMENTAL

  PROTECTION AGENCY (EPA) IS REQUIRED TO SET "AMBIENT AIR" QUALITY

  STANDARDS WHICH, IN EPA'S JUDGMENT, ARE "REQUISITE TO PROTECT THE

  PUBLIC HEALTH," SEC. 109(B)(1) ("PRIMARY" STANDARDS), AND

  "REQUISITE TO PROTECT THE PUBLIC WELFARE FROM ANY KNOWN OR

  ANTICIPATED ADVERSE EFFECTS ASSOCIATED WITH THE PRESENCE OF SUCH

  AIR POLLUTANT IN THE AMBIENT AIR," SEC. 109(B)(2) ("SECONDARY"

  STANDARDS).  EACH STATE AFTER PROMULGATION OF THESE STANDARDS

MUST SUBMIT AN IMPLEMENTING AND MAINTENANCE PLAN, WHICH MUST BE

  APPROVED BY EPA, IF, INTER ALIA, IT MEETS EIGHT GENERAL

  CONDITIONS SET FORTH IN SEC. 110(A)(2), THE PRINCIPAL ONE OF

  WHICH IS THAT THE PLAN PROVIDE FOR THE ATTAINMENT OF THE NATIONAL

  PRIMARY AMBIENT AIR QUALITY STANDARDS IN THE STATE "AS

  EXPEDITIOUSLY AS PRACTICABLE" BUT NO LATER THAN THREE YEARS FROM

  THE DATE OF THE PLAN'S APPROVAL.  SEC. 110(A)(2)(A).  THE STATE'S

  PLAN MUST INCLUDE EMISSION LIMITATIONS, SCHEDULES, COMPLIANCE

  TIMETABLES, AND OTHER MEASURES INSURING TIMELY ATTAINMENT AND

  SUBSEQUENT MAINTENANCE OF THE NATIONAL STANDARDS.  IN ORDER TO

  DEVELOP THE REQUISITE PLAN WITHIN THE STATUTORY DEADLINE, GEORGIA

  ELECTED TO FOLLOW AN EPA-ENDORSED APPROACH PROVIDING FOR

  IMMEDIATELY EFFECTIVE CATEGORICAL EMMISSION IMITATIONS

  ACCOMPANIED, HOWEVER, BY A VARIANCE PROCEDURE WHEREBY PARTICULAR

  SOURCES COULD OBTAIN INDIVIDUALLY TAILORED RELIEF FROM THE

  GENERAL REQUIREMENTS APPLICABLE TO AN ORIGINAL PLAN, AND EPA,

  CONCLUDING THAT THAT PROVISION PERMITS A STATE TO GRANT

  INDIVIDUAL VARIANCES MEETING SEC. 110(A)(2) REQUIREMENTS FROM

  GENERALLY APPLICABLE EMISSION STANDARDS, BOTH BEFORE AND AFTER

  THE ATTAINMENT DATE, APPROVED THE GEORGIA PLAN.  RESPONDENTS

  INITIATED REVIEW PROCEEDINGS IN THE COURT OF APPEALS, TAKING THE

  POSITION THAT VARIANCES APPLICABLE TO INDIVIDUAL SOURCES MAY BE

  APPROVED ONLY IF THEY MEET THE MUCH MORE STRINGENT PROCEDURAL AND

  SUBSTANTIVE STANDARDS OF SEC. 110(F), WHICH, UPON APPLICATION

  PRIOR TO THE COMPLAINCE DATE FOR A STATIONARY SOURCE OR CLASS OF

  MOVING SOURCES, PERMITS "POSTPONEMENTS" OF NO MORE THAN ONE YEAR

  OF ANY REQUIREMENT OF A PLAN, SUBJECT TO SPECIFIED CONDITIONS. 

  THAT COURT UPHELD RESPONDENTS' CONTENTINOS AND ORDERED EPA TO

  DISPROVE GEORGIA'S VARIANCE PROVISION.  HELE:  EPA'S CONSTRUCTION

  OF THE ACT PERMITTING TREATMENT OF INDIVIDUAL VARIANCES FROM

  STATE REQUIREMENTS AS "REVISIONS," UNDER SEC. 110(A)(3), OF STATE

  IMPLEMENTATION PLANS IF THEY WILL NOT INTERFERE WITH TIMELY

  ATTAINMENT AND SUBSEQUENT MAINTENANCE OF NATIONAL AIR QUALITY

  STANDARDS, RATHER THAN AS "POSTPONEMENTS" UNDER SEC. 110(F), WAS

  SUFFICIENTLY REASONABLE TO PRECLUDE THE COURT OF APPEALS FROM

  SUBSTITUTING ITS JUDGMENT FOR THAT OF THE EPA.  PP. 75 - 99. 

     (A) SECTION 113(F) IS A SAFETY VALVE BY WHICH MAY BE ACCORDED,

  UNDER CERTAIN CAREFULLY SPECIFIED CIRCUMSTANCES, EXCEPTIONS TO

  THE MANDATORY DEADLINES FOR MEETING NATIONAL STANDARDS, AND,

  CONTRARY TO RESPONDENTS' CONTENTION, DOES NOT CONSTITUTE THE SOLE

  MECHANISM BY WHICH EXCEPTIONS TO A PLAN'S REQUIREMENTS MAY BE

  OBTAINED.  PP. 78 - 84. 

     (B) THIS CONCEPT OF SEC. 110(F)'S LIMITED ROLE IS REINFORCED
BY

  COMPARISON WITH SEC. 110(E), WHICH PERMITS A TWO-YEAR EXTENSION

OF THE THREE-YEAR PERIOD REFERRED TO IN SEC. 110(A)(2)(A)(I) ON A

  SHOWING FAR LESS STRINGENT THAN THAT REQUIRED FOR A SEC. 110(F)

  ONE-YEAR POSTPONEMENT, WHICH WOULD BE INEXPLICABLE WERE SEC.

  110(F) THE SOLE MECHANISM FOR STATES TO MODIFY THEIR INITIAL

  FORMULATIONS OF EMISSION LIMITATIONS.  PP. 84 - 86. 

     (C) NOTING THAT SEC. 110(F) PROVIDES THAT A POSTPONEMENT MAY
BE

  GRANTE DWITH RESPECT TO THE DATE THAT "ANY STATIONARY SOURCE"

  MUST COMPLY WITH "ANY REQUIREMENT OF AN APPLICABLE STATE

  IMPLEMENTATION PLAN," THE COURT OF APPEALS REACHED AN ERRONEOUS

  CONCLUSION THAT THE SEC. 110(F) PROCEDURE WAS EXCLUSIVE; THE

  LANGUAGE OF THAT PROVISION DOES NOT MANDATE THAT ALL MODIFICATINS

  OF A PLAN'S REQUIREMENTS NECESSARILY BE TREATED AS POSTPONEMENTS,

  PRECLUDING OTHER FORMS OF RELIEF.  PP. 87 - 88. 

     (D) THE COURT OF APPEALS ALSO ERRED IN ITS CONCLUSION THAT "A

  REVISION IS A CHANGE IN A GENERALLY APPLICABLE REQUIREMENTS,"

  WHEREAS A "POSTPONEMENT OR VARIANCE" DEALS WITH A PARTICULAR

  PARTIES, FOR HERE THE IMPLEMENTATION PLANS BEING REVISED ARE

  QUITE DETAILED; MOREOVER, THE COURT'S ANALYSIS OVERLOOKS OBVIOUS

  DISTINCTIONS BETWEEN REVISIONS AND POSTPONEMENTS IN THE STATUTORY

  CONTEXT.  PP. 88 - 90. 

     (E) SECTION 110(A)(3) REVISIONS ARE GRANTED BY EPA ONLY IF THE

  COMPORT WITH THE SEC. 110(A)(2)(A) REQUIREMENT THAT THE NATIONAL

  STANDARDS BE ATTAINED AS EXPEDITIOUSLY AS PRACTICABLE AND

  THEREAFTER MAINTAINED, SO THE "TECHNOLOGY FORCING" NATURE OF THE

  AMENDMENTS IS NO REASON FOR JUDGING UNDER SEC. 110(F) VARIANCES

  WHICH QUALIFY FOR APPROVAL UNDER SEC. 110(A)(3).  PP. 90 - 91. 

    (F) CONGREE FELT THAT EPA COULD FEASIBLY AND RELIABLY PERFORM

  THE MEASUREMENT AND PREDICTIVE FUNCTIONS NECESSARY TO PASS ON

  VARIANCES AS REVISIONS UNDER SEC. 110(A)(3).  PP. 91 - 94. 

     (G) RESPONDENTS' ARGUMENT THAT BECAUSE ANY VARIANCE WOULD
DELAY

  ATTAINMENT OF NATIONAL STANDARDS BEYOND WHAT WAS PREVIOUSLY

  CONSIDERED AS THE EARLIEST PRACTICABLE DATE, AND THAT BECAUSE THE

  ACT REQUIRES ATTAINMENT AS SOON AS PRACTICABLE, ANY VARIANCE MUST

  THEREFORE BE TREATED AS A POSTPONMENT, IS NOT SUPPORTED BY THE

LEGISLATIVE HISTORY OR OTHERWISE.  PP. 94 - 97. 

     (H) RESPONDENTS' CONTENTION, BASED ON SEC. 110(A)(2)(H), THAT

 REVISION AUTHORITY IS LIMITED TO GENERAL CHANGES INITIATED BY EPA

  IN ORDER TO "ACCELERATE ABATEMENT OR ATTAIN IT IN GREATER CONCERT

  WITH OTHER NATIONAL GOALS," IS SPECIOUS.  THAT PROVISION, WHICH

  DOES NO MORE THAN IMPOSE A MINIMUM REQUIREMENT THAT STATE PLANS

  BE CAPABLE OF SUCH MODIFICATIONS AS ARE NECESSARY TO MEET THE

  BASIC GOAL OF CLEANSING THE AMBIENT AIR TO THE EXTENT NECESSARY

  TO THREE-YEAR PERIOD, DOES NOT PREVENT THE STATES FROM ALSO

  PERMITTING AMELIORATIVE REVISIONS NOT CONTRARY TO THAT GOAL.  PP.

  97 - 98. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, AND

  BLACKMUN, JJ., JOINED.  DOUGLAS, J., DISSENTED.  POWELL, J., TOOK

  NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE, 419 U.S. 823 (1974), TO REVIEW A
JUDGMENT OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT WHICH REQUIRED
PETITIONER ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY TO
DISAPPROVE A PORTION OF THE IMPLEMENTATION PLAN SUBMITTED TO HIM BY THE
STATE OF GEORGIA PURSUANT TO THE CLEAN AIR ACT AMENDMENTS OF 1970.  /1/
THE CASE PRESENTS AN ISSUE OF STATUTORY CONSTRUCTION WHICH IS
ILLUMINATED HISTORY, AND BY THE HISTORY OF CONGRESSIONAL EFFORTS TO
CONTROL AIR POLLUTION. 

        I 

CONGRESS INITIALLY RESPONDED TO THE PROBLEM OF AIR POLLLUTION BY
OFFERING ENCOURAGEMENT AND ASSISTANCE TO THE STATES.  IN 1955 THE
SUREGON GENERAL WAS AUTHORIZED TO STUDY THE PROBLEM OF AIR POLLUTION,
TO SUPPORT RESEARCH, TRAINING, AND DEMONSTRATION PROJECTS, AND TO
PROVIDE TECHNICAL ASSISTANCE TO STATE AND LOCAL GOVERNMENTS ATTEMPTING
TO ABATE POLLUTION.  69 STAT. 322.  IN 1960 CONGRESS DIRECTED THE
SUREGON GENERAL TO FOCUS HIS ATTENTION ON THE HEALTH HAZARDS RESULTING
FROM MOTOR VEHICLE EMISSIONS.  PUB. L. 86 - 493, 74 STAT. 162.  THE
CLEAN AIR ACT OF 1963, 77 STAT. 392, AUTHORIZED FEDERAL AUTHORITIES TO
EXPAND THEIR RESEARCH EFFORTS, TO MAKE GRANTS TO STATE AIR POLLUTION
CONTROL AGENCIES, AND ALSO TO INTERVENE DIRECTLY TO ABATE INTERSTATE
POLLUTION IN LIMITED CIRCUMSTANCES.  AMENDMENTS IN 1965, SEC. 101, 79
STAT. 992, AND IN 1966, 80 STAT.954, BROADENED FEDERAL AUTHORITY TO
CONTROL MOTOR VEHICLE EMMISSIONS AND TO MAKE GRANTS TO STATE POLLUTION
CONTROL AGENCIES. 

THE FOCUE SHIFTED SOMEWHAT IN THE AIR QUALITY ACT OF 1967, 81 STAT.
485.  IT REITERATED THE PREMISE OF THE EARLIER CLEAN AIR ACT "THAT THE
PREVENTION AND CONTROL OF AIR POLLUTION AT ITS SOURCE IS THE PRIMARY
RESPONSIBILITY OF STATES AND LOCAL GOVERNMENTS."  IBID.  ITS
PROVISIONS, HOWEVER, INCREASED THE FEDERAL ROLE IN THE PREVENTION OF
AIR POLLUTION, BY ACCORDING FEDERAL AUTHORITIES CERTAIN POWERS OF
SUPERVISION AND ENFORCEMENT.  BUT THE STATES GENERALLY RETAINED WIDE
LATITUDE TO DETERMINE BOTH THE AIR QUALITY STANDARDS WHICH THEY WOULD
MEET AND THE PERIOD OF TIME IN WHICH THEY WOULD DO SO. 

THE RESPONSE OF THE STATES TO THESE MANIFESTATIONS OF INCREASING
CONGRESSIONAL CONCERN WITH AIR POLLUTION WAS DISAPPOINTING.  EVEN BY
1970, STATE PLANNING AND IMPLEMENTATION UNDER THE AIR QUALITY ACT OF
1967 HAD MADE LITTLE PROGRESS.  CONGRESS REACTED BY TAKING A STICK TO
THE STATES IN THE FORM OF THE CLEAN AIR AMENDMENTS OF 1970, PUB. L. 91
604, 84 STAT. 1976, ENACTED ON DECEMBER 31 OF THAT YEAR.  THESE
AMENDMENTS SHARPLY INCREASED FEDERAL AUTHORITY AND RESPONSIBILITY IN
THE CONTINUING EFFORT TO COMBAT AIR POLLUTION.  NONETHELESS, THE
AMENDMENTS EXPLICITLY PRESERVED THE PRINCIPLE:  " EACH STATE SHALL HAVE
THE PRIMARY RESPONSIBILITY FOR ASSURING AIR QUALITY WITHIN THE ENTIRE
GEOGRAPHIC AREA COMPRISING SUCH STATE ...."  SEC.  107 (A) OF THE CLEAN
AIR ACT, AS ADDED, 84 STAT. 1678, 42 U.S.C. SEC. 1857C-2(A).  THE
DIFFERENCE UNDER THE AMENDMENTS WAS THAT THE STATES WERE NO LONGER
GIVEN ANY CHOICE AS TO WHETHER THEY WOULD MEET THIS RESPONSIBILITY. 
FOR THE FIRST TIME THEY WERE REQUIRED TO ATTAIN AIR QUALITY OF
SPECIFIED STANDARDS, AND TO DO SO WITHIN A SPECIFIED PERIOD OF TIME. 

THE AMENDMENTS DIRECTED THAT WITHIN 30 DAYS OF THEIR ENACTMENT THE
ENVIRONMENTAL PROTECTION AGENCY SHOULD PUBLISH PROPOSED REGULATIONS
DESCRIBING NATIONAL QUALITY STANDARDS FOR THE "AMBIENT AIR," WHICH IS
THE STATUTE'S TERM FOR THE OUTDOOR AIR USED BY THE GENERAL PUBLIC. 
AFTER ALLOWING 90 DAYS FOR COMMENTS ON THE PROPOSED STANDARDS, THE
AGENCY WAS THEN OBLIGED TO PROMULGATE SUCH STANDARDS.  SEC.  109(A)(1)
OF THE CLEAN AIR ACT, AS ADDED, 84 STAT. 1679, 42 U.S.C. SEC. 1857C
4(A)(1).  THE STANDARDS WERE TO BE OF TWO GENERAL TYPES:  "PRIMARY"
STANDARDS, WHICH IN THE JUDGMENT OF THE AGENCY WERE "REQUISITE TO
PROTECT THE PUBLIC HEALTH," SEC. 109(B)(1), AND "SECONDARY" STANDARDS,
THOSE THAT IN THE JUDGMENT OF THE $AGENCY WERE "REQUISITE TO PROTECT
THE PUBLIC WELFARE FROM ANY KNOWN OR ANTICIPATED ADVERSE EFFECTS
ASSOCIATED WITH THE PRESENCE OF SUCH AIR POLLUTANT IN THE AMBIENT
AIR."  SEC.  109(B)(2). 

WITHIN NINE MONTHS AFTER THE AGENCY'S PROMULGATION OF PRIMARY AND
SECONDARY AIR QUALITY STANDARDS, EACH OF THE 50 STATES WAS REQUIRED TO
SUBMIT TO THE AGENCY A PLAN DESIGNED TO IMPLEMENT AND MAINTAIN SUCH
STANDARDS WITHIN ITS BOUNDARIES.  SEC. 110(A)(1) OF THE CLEAN AIR ACT,
AS ADDED, 84 STAT. 1680, 42 U.S.C. SEC. 1857C-5(A)(1).  THE AGENCY WAS
IN TURN REQUIRED TO APPROVE EACH STATE'S PLAN WITHIN FOUR MONTHS OF THE
DEADLINE FOR SUBMISSION, IF IT HAD BEEN ADOPTED AFTER PUBLIC HEARINGS
AND IF IT SATISFIED EIGHT GENERAL CONDITIONS SET FORTH IN SEC.
110(A)(2).  /2/  PROBABLY THE PRINCIPAL OF THESE CONDITIONS, AND THE
HEART OF THE 1970 AMENDMENTS, IS THAT THE PLAN PROVIDE FOR THE
ATTAINMENT OF THE NATIONAL PRIMARY ANVIENT AIR QUALITY STANDARDS IN THE
PARTICULAR STATE "AS EXPEDITIOUSLY AS PRACTICABLE BUT ... IN NO CASE
LATER THAN THREE YEARS FROM THE DATE OF APPROVAL OF SUCH PLAN."  SEC.
110(A)(2)(A).  IN PROVIDING FOR SUCH ATATINMENT, A STATE'S PLAN MUST
INCLUDE "EMISSION LIMITATIONS, SCHEDULES, AND TIMETABLES FOR COMPLIANCE
WITH SUCH LIMITATIONS"; IT MUST ALSO CONTAIN SUCH OTHER MEASURES AS MAT
BE NECESSARY TO INSURE BOTH TIMELY ATTAINMENT AND SUBSEQUENT
MAINTENANCE OF NATIONAL AMBIENT AIR STANDARDS.  SEC. 110 (A)(2)(B). 

ALTHOUGH THE AGENCY ITSELF WAS NEWLY ORGANIZED, THE STATES LOOKED TO
IT FOR GUIDANCE IN FORMULATING THE PLANS THEY WREE REQUIRED TO SUBMIT. 
ON APRIL 7, 1971--SCARCELY THREE MONTHS AFTER THE ENACTMENT OF THE
CLEAN AIR AMENDMENTS--THE AGENCY PUBLISHED PROPOSED GUIDELINES FOR THE
PREPARATION, ADOPTION, AND SUBMISSION OF SUCH PLANS.  3L FED. REG.
6680.  AFTER RECEIVING NUMEROUS COMMENTS, INCLUDING THOSE FROM
RESPONDENT NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC), IT ISSUED
FINAL GUIDELINES ON AGAUST 14, 1971, 36 FED. REG. 1586.  SEE 40 CFR
PART 51 (1974).  THE NATIONAL STANDARDS THEMSELVES WERE TIMELY
PROMULGATED ON APRIL 30, 1971, 36 FED. REG. 8186.  SEE 40 CFR PART 50
(1974). 

NO ONE CAN DOUBT THAT CONGRESS IMPOSED UPON THE AGENCY AND STATES A
COMPREHENSIVE PLANNING TASK OF THE FIRST MAGNITUDE WHICH WAS TO BE
ACCOMPLISHED IN A RELATIVELY SHORT TIME.  IN THE CASE OF THE STATES, IT
WAS SOON REALIZED THAT IN ORDER TO DEVELOP THE REQUISITE PLANS WITHIN
THE STATUTORY NINE-MONTH DEADLINE, EFFORTS WOULD HAVE TO BE FOCUSED ON
DETERMINING THE STRINGENT EMISSION LIMITATIONS NECESSARY TO COMPLY WITH
NATIONAL STANDARDS.  THIS WAS TRUE EVEN THOUGH COMPLIANCE WITH THE
STANDARDS WOULD NOT BE NECESSARY UNTIL THE ATTAINMENT DATE, WHICH
NORMALLY WOULD BE THREE YEARS AFTER AGENCY APPROVAL OF A PLAN.  THE
ISSUE THEN AROSE AS TO HOW THESE STRINGENT LIMITATIONS, WHICH OFTEN
COULD NOT BE SATISFIED WITHOUT SUBSTANTIAL RESEARCH AND INVESTMENT,
SHOULD BE APPLIED DURING THE PERIOD PRIOR TO THAT DATE. 

ONE APPROACH WAS THAT ADOPTED BY FLORIDEA, UNDER WHICH THE PLAN'S
EMISSION LIMITATIONS WOULD NOT TAKE EFFECT UNTIL THE ATTAINMENT DATE. 
UNDER THIS APPROACH, NO SOURCE IS SUBJECT TO ENFORCEMENT ACTIONS DURING
THE PREATTAINMENT PERIOD, BUT ALL ARE PUT ON NOTICE OF THE LIMITATIONS
WITH WHICH THEY MUST EVENTUALLY COMPLY.  /3/ SINCE THE FLORIDA APPROACH
BAWICALLY DOES NOT REQUIRE PREATTAINMENT DATE POLLUTION REDUCTIONS ON
THE PART OF THOSE SOURCES WHICH MITHT BE ABLE TO EFFECT THEM, /4/ THE
AGENCY ENCOURAGED AN ALTERNATIVE APPROACK.  UNDER IT A STAT'S EMISSION
LIMITATIONS WOULD BE IMMEDIATELY EFFECTIVE.  THE STATE, HOWEVER, WOULD
HAVE THE AUTHORITY TO GRANT VARIANCES TO PARTICULAR SOURCES WHICH COULD
NOT IMMEDIATELY COMPLY WITH THE STRINGENT EMISSION LIMITATIONS
NECESSARY TO MEET THE STANDARDS. 

GEORGIA CHOSE THE AGENCY'S PREFERRED APPROACH.  /5/ ITS PLAN
PROVIDED FOR IMMEDIATELY EFFECTIVE CATEGORICAL EMISSION LIMITATIONS,
BUT ALSO INCORPORATED A VARIANCE PROCEDURE WHEREBY PARTICULAR SOURCES
COULD OBTAIN INDIVIDUALLY TAILORED RELIEF FROM GENERAL REQUIREMENTS. 
THIS VARIANCE PROVISION, GA. CODE ANN. SEC. 88 - 912 (1971), /6/ WAS
ONE OF THE BASES UPON WHICH THE AGENCY'S APPROVAL OF THE GEORGIA PLAN
WAS SUCCESSFULLY CHALLENGED BY RESPONDENTS IN THE COURT OF APPEALS.  IT
IS THE ONLY ASPECT OF THAT COURT'S DECISION AS TO WHICH THE AGENCY
PETITIONED FOR CERTIORARI. 

        II 

THE AGENCY'S APPROVAL OF GEORGIA'S VARIANCE PROVISION WAS BASED ON
ITS INTERPRETATION OF SEC. 110(A)(3), /7/ WHICH PROVIDES THAT THE
AGENCY SHALL APPROVE ANY REVISION OF AN IMPLEMENTATION PLAN WHICH MEETS
THE SEC. 110(A)(2) REQUIREMENTS APPLICABLE TO AN ORIGINAL PLAN.  THE
AGENCY CONCLUDED THAT SEC. 110(A)(3) PERMITS A STATE TO GRANT
INDIVIDUAL VARIANCES FROM GENERALLY APPLICABLE EMISSION STANDARDS, BOTH
BEFORE AND AFTER THE ATTAINMENT DATE, SO LONG AS THE VARIANCE DOES NOT
CAUSE THE PLAN TO FAIL TO COMPLY WITH THE REQUIREMENTS OF SEC.
110(A)(2).  SINCE THAT SECTION REQUIRES, INTER ALIA, THAT PRIMARY
AMBIENT AIR STANDARDS BE ATTAINED BY A PARTICULAR DATE, IT IS OF SOME
CONSEQUENCE UNDER THIS APPROACH WHETHER THE PERIOD FOR WHICH THE
VARIANCE IS SOUGHT EXTENDS BEYOUND THAT DATE.  IF IT DOES NOT, THE
PRACTICAL EFFECT OF TREATING SUCH PREATTAINMENT DATE VARIANCES AS
REVISIONS IS THAT THEY CAN BE GRANTED RATHER FREELY. 

THIS INTERPRETATION OF SEC. 110(A)(3) WAS INCORPORATED IN THE
AGENCY'S ORIGINAL GUIDELINES FOR IMPLEMENTATION PLANS, 40 CFR SEC.
51.6(C), 51.32(F) (1973).  /8/ ALTHOUGH A SPOKESMAN FOR RESPONDENT NRDC
HAD EARLIER STATED THAT THE AGENCY'S GUIDELINE IN THIS REGARD
"CORRECTLY PROVIDES THAT VARIANCES WHICH DO NOT THREATEN ATTAINMENT OF
A NATIONAL STANDARD ARE TO BE CONSIDERED REVISIONS OF THE PLAN," /9/
THAT ORGANIZATION LATER DEVELOPED SECOND THOUGHTS ON THE MATTER.  ITS
PRESENT POSITION, IN WHICH IT IS JOINED BY ANOTHER EVIRONMENTAL
ORGANIZATION AND BY TWO INDIVIDUAL RESPONDENTS WHO RESIDE IN AFFECTED
AIR QUALITY CONTROL REGIONS WITHIN THE STATE OF GEORGIA, IS THAT
VARIANCES APPLICABLE TO INDIVIDUAL SOURCES MAY BE APPROVED ONLY IF THEY
MEET THE STRINGENT PROCEDURAL AND SUBSTANTIVE STANDARDS OF SEC.
110(F).  /10/ THIS SECTION PERMITS ONE-YEAR "POSTPONEMENTS" OF ANY
REQUIREMENT OF A PLAN, SUBJECT TO CONDITIONS WHICH WILL BE DISCUSSED
BELOW. 

THE COURT OF APPEALS AGREED WITH RESPONDENTS, AND ORDERED THE AGENCY
TO DISAPPROVE GEORGIA'S VARIANCE PROVISION, ALTHOUGH IT DID NOT SPECIFY
WHICH OF THE SEC. 110 (A)(2) REQUIREMENTS WERE THEREBY VIOLATED.  /11/
IT HELD THAT WHILE THE REVISION AUTHORITY OF SEC. 110(A)(3) WAS
AVAILABLE FOR GENERALLY APPLICABLE CHANGES OF AN IMPLEMENTATION PLAN,
THE POSTPONEMENT PROVISION OF SEC. 110(F) WAS THE ONLY METHOD BY WHICH
INDIVIDUAL SOURCES COULD OBTAIN RELIEF FROM APPLICABLE EMISSION
LIMITATIONS.  IN REACHING THIS CONCLUSION THE COURT REJECTED
PETITIONERS' SUGGESTION THAT WHETHER A PROPOSED VARIANCE SHOULD BE
TREATED AS A "REVISION"  UNDER SEC. 110(A)(3)8 OR AS A "POSTPONEMENT"
UNDER SEC. 110(F), DEPENDED ON WHETHER IT WOULD AFFECT ATTAINMENT OF A
NATIONAL AMBIENT AIR STANDARD, RATHER THAN ON WHETHER IT APPLIED TO ONE
SOURCE OR TO MANY. 

OTHER CIRCUITS HAVE ALSO BEEN CONFRONTED WITH THIS ISSUE, AND WHILE
NONE HAS ADOPTED THE AGENCY'S POSITION, ALL HAVE FIFFERED FROM THE
FIFTH CIRCUIT.  THE FIRST CASE WAS NATURAL RESOURCES DEFENSE COUNCIL V.
EPA, 478 F.2D 875 (CA1 1973).  FOR REASONS TO BE DISCUSSED, INFRA, AT
91 - 94, THE FIRST CIRCUIT REJECTED THE REVISION AUTHORITY AS A BASIS
FOR A VARIANCE PROCEDURE.  IT NONETHELESS CONCLUDED THAT PRIOR TO THE
THREE-YEAR DATE FOR MANDATORY ATTAINMENT OF PRIMARY STANDARDS, A STATE
COULD GRANT VARIANCES TO SOURCES WHICH COULD NOT IMMEDIATELY MEET
APPLICABLE EMISSION LIMITATIONS.  THE COURT REASONED: 

" WE CAN SEE VALUE IN PERMITTING A STATE TO IMPOSE STRICT EMISSION
LIMITATIONS NOW, SUBJECT TO INDIVIDUAL EXEMPTIONS IF PRACTICABILITY
WARRANTS; OTHERWISE IT MAY BE FORCED TO ADOPT LESS STRINGENT
LIMITATIONS IN ORDER TO ACCOMMODATE THOSE WHO, NOTWITHSTANDING
REASONABLE EFFORTS, ARE AS YET UNABLE TO COMPLY. 

     " THE ADMINISTRATOR SEES HIS POWER TO ALLOW SUCH EXEMPTION

  PROCEDURES AS DERIVING FROM THE 'REVISION' AUTHORITY IN SEC.

  (110)(A)(3).  WE TEND TO VIEW IT MORE AS A NECESSARY ADJUNCT TO

  THE STATUTORY SCHEME, WHICH ANTICIPATES GREATER FLEXIBILITY

DURING THE PRE-ATTAINMENT PERIOD."  478 F.2D, AT 887. 

THE FIRST CIRCUIT'S RESOLUTION, WHICH HAS BEEN DESCRIBED AS "
SOLOMONESQUE," IS NOT TIED TO ANY SPECIFIC PROVISION OF THE CLEAN AIR
ACT.  RATHER, IT IS QUITE CANDIDLY A JUDICIAL CREATION PROVIDING
FLEXIBILITY WHICH, ACCORDING TO ITS CREATORS, CONGRESS MAY BE INFERRED
TO HAVE INTENDED TO PROVIDE.  TWO OTHER CIRCUITS SUBSEQUENTLY FOLLOWED
THE FIRST CIRCUIT.  NATURAL RESOURCES DEFENSE COUNCIL V. EPA, 483 F.2D
690, 693 - 694 (CA8 1973); NATURAL RESOURCES DEFENSE COUNCIL V. EPA,
494 F.2D 519, 523 (CA2 1974).  NEITHER EXPANDED ON THE FIRST CURCUIT'S
REASONING. 

THE NINTH CIRCUIT HAS ADOPTED A THIRD APPROACH TO THIS QUESTION, IN
NATURAL RESOURCES DEFENSE COUNCIL V. EPA, 507 F.2D 905, 911 - 917
(1974).  AFTER CONSIDERING LEGISLATIVE HISTORY, THE NINTH CURCUIT
CONCLUDED THAT CONGRESS DID NOT INTEND THE POSTPONEMENT MECHANISM TO BE
THE EXCLUSIVE SOURCE FOR VARIANCES.  BUT THE COURT ALSO DID NOT ADOPT
THE AGENCY'S VIEW THAT VARIANCES COULD BE AUTHORIZED AS SEC. 110(A)(3)
REVISIONS, ALTHOUGH IT DID NOT EXPLAIN ITS REJECTION OF THIS
INTERPRETATION.  RATHER, THE NINTH CIRCUIT AGREED WITH THE FIRST
CURCUIT THAT FLEXIBILITY WAS "A NECESSARY ADJUNCT TO THE STATUTORY
SCHEME."  IT EXPLAINED:     " AS LONG AS A POSSIBLE VARIANCE FROM A
STATE PLAN WILL NOT PRECLUDE THE ATTAINMENT OR MAINTENANCE OF SUCH
STANDARDS, WE DISCERN NO LEGISLATIVE INTENT TO COMMIT A STATE, IN TOTO,
TO ITS INITIAL PLAN, WITHOUT ANY FLEXIBILITY WHATSOEVER."  507 F.2D AT
913.  THE NINTH CIRCUIT, HOWEVER, REJECTED THE FIRST CIRCUIT'S
DISTINCTION BETWEEN THE PREATTAINMENT AND POSTATTAINMENT PERIODS.  IT
CONCLUDED THAT STATUTORY SUPPORT FOR FLEXIBILITY WAS AS STRONG AFTER
THE ATTAINMENT DATE AS BEFORE, EXPECIALLY IN LIGHT OF THE ACT'S
ENCOURAGEMENT OF THE STATES TO ADOPT PLANS EVEN STRICTER THAT THOSE
REQUIRED TO ATTAIN NATIONAL STANDARDS.  /12/ THE COURT THUS ADOPTED AN
APPROACH WHICH DIFFERS FROM THE AGENCY'S, BUT WHICH REACHES THE SAME
RESULT--AUTHORIZATION OF VARIANCES ON STANDARDS OTHER THAN THOSE
REQUIRED FOR SEC. 110(F) POSTPONEMENTS, BOTH BEFORE AND AFTER THE
ATTAINMENT DATE, SO LONG AS THE VARIANCE DOES NOT PREVENT TIMELY
ATTAINMENT AND SUBSEQUENT MAINTENANCE OF NATIONAL AMBIENT AIR
STANDARDS. 

AFTER THE COURTS OF APPEALS FOR THE FIRST, EIGHTH, FIFTH, AND SECOND
CIRCUITS HAD SPOKEN, BUT PRIOR TO THE DECISION OF THE NINTH CIRCUIT,
THE AGENCY MODIFIED ITS GUIDELINES TO COMPLY WITH THE THEN-UNANIMOUS
RULING THAT AFTER THE ATTAINMENT DATE THE POSTPONEMENT PROVISION WAS
THE ONLY BASIS FOR OBTAINING A VARIANCE.  39 FED. FEG.  34533 - 34535,
ADDING 40 CFR SEC. 51.11(G), 51.15(D) AND REVISING SEC. 51.32(F).  AT
THE SAME TIME, THE AGENCY FORMALLY DISAPPROVED VARIANCE PROVISIONS TO
THE EXTENT THEY AUTHORIZED VARIANCES EXTENDING BEYOND ATTAINMENT DATES,
UNLESS THE STANDARDS OF SEC. 110(F) WERE MET.  39 FED. FEG.  34535,
ADDING 40 CFR SEC. 52.56. 

BECAUSE THE AGENCY HAS CONFORMED ITS REGULATIONS TO THE DECISIONS OF
THE FIRST, EIGHTH, AND SECOND CIRCUITS, THIS CASE ON ITS FACTS IS NOW
LIMITED TO THE VALIDITY OF THE GEORGIA VARIANCE PROVISION INSOFAR AS IT
AUTHORIZES VARIANCES EFFECTIVE BEFORE GEORGIA'S ATTAINMENT DATE, WHICH
IS IN JULY 1975.  /13/ THE AGENCY NONETHELESS HAS NOT ABANDONED ITS
ORIGINAL VIEW THAT THE REVISION SECTION AUTHORIZES VARIANCES WHICH DO
NOT INTERFERE WITH THE ATTAINMENT OR MAINTENANCE OF NATIONAL AMBIENT
AIR STANDARDS.  MOREOVER, THE AGENCY IS CANDID IN ADMITTING THAT SHOULD
WE BASE OUR DECISION ON ITS INTERPRETATION OF SEC. 110(A)(3), THE
DECISION WOULD SUPPORT THE APPROVAL OF IMPLEMENTATION PLANS WHICH
PROVIDE FOR VARIANCES EFFECTIVE AFTER THE ATTAINMENT DATE. 

THE DISPARITY AMONG THE COURTS OF APPEALS RATHER STRONGLY INDICATES
THAT THE QUESTION DOES NOT ADMIT OF AN EASY ANSWER.  WITHOUT GOING SO
FAR AS TO HOLD THAT THE AGENCY'S CONSTRUCTION OF THE ACT WAS THE ONLY
ONE IT PERMISSIBLY COULD HAVE ADOPTED, WE CONCLUDE THAT IT WAS AT THE
VERY LEAST SUFFICIENTLY REASONABLE THAT IT SHOULD HAVE BEEN ACCEPTED BY
THE REVIEWING COURTS. 

        III 

BOTH OF THE SECTIONS IN CONTROVERSY ARE CONTAINED IN SEC. 110 OF THE
AMENDED CLEAN AIR ACT, WHICH IS ENTITLED "IMPLEMENTATION PLANS." 

"(A) THE ADMINISTRATOR SHALL APPROVE ANY REVISION OF AN
IMPLEMENTATION PLAN APPLICABLE TO AN AIR QUALITY CONTROL REGION IF HE
DETERMINES THAT IT MEETS THE REQUIREMENT OF PARAGRAPH (2) AND HAS BEEN
ADOPTED BY THE STATE AFTER REASONABLE NOTICE AND PUBLIC HEARINGS." 


     "(1) PRIOR TO THE DATE ON LKWHICH ANY STATIONARY SOURCE OR

  CLASS OF MOVING SOURCES IS REQUIRED TO COMPLY WITH ANY

  REQUIREMENT OF AN APPLICABLE IMPLEMENTATION PLAN THE GOVERNOR OF

  THE STATE TO WHICH SUCH PLAN APPLIES MAY APPLEY TO THE

  ADMINISTRATOR TO POSTPONE THE APPLICABILITY OF SUCH REQUIREMENT

  TO SUCH SOURCE (OR CLASS) FOR NOT MORE THAN ONE YEAR.  IF THE

  ADMINISTRATOR DETERMINES THAT--, 

     "(A) GOOD FAITH EFFORTS HAVE BEEN MADE TO COMPLY WITH SUCH
REQUIREMENT BEFORE SUCH DATE, 

  "(B) SUCH SOURCE (OR CLASS) IS UNABLE TO COMPLY WITH SUCH

  REQUIREMENT BECAUSE THE NECESSARY TECHNOLOGY OR OTHER ALTERNATIVE

  METHODS OF CONTROL ARE NOT AVAILABLE OR HAVE NOT BEEN AVAILABLE

  FOR A SUFFICIENT PERIOD OF TIME, 

   "(C) ANY AVAILABLE ALTERNATIVE OPERATING PROCEDURES AND INTERIM

  CONTROL MEASURES HAVE REDUCED OR WILL REDUCE THE IMPACT OF SUCH

  SOURCE ON PUBLIC HEALTH, AND 

     "(D) THE CONTINUED OPERATION OF SUCH SOURCE IS ESSENTIAL TO

NATIONAL SECURITY OR TO THE PUBLIC HEALTH OR WELFARE, "THEN THE

  ADMINISTRATOR SHALL GRANT A POSTPONEMENT OF SUCH REQUIREMENT." 

  /14/ 

AS PREVIOUSLY NOTED, RESPONDENTS CONTEND THAT "VARIANCES"
APPLICABLE TO INDIVIDUAL SOURCES--FOR EXAMPLE, A PARTICULAR FACTORY--
MAY BE APPROVED ONLY IF THEY MEET THE STRINGENT PROCEDURAL AND
SUBSTANTIVE STANDARDS SET FORTH IN SEC. 110(F).  AS IS APPARENT FROM
THE TEST OF SEC. 110(F), ITS POSTPONEMENTS MAY BE FOR NO MORE THAN ONE
YEAR, MAY BE GRANTED ONLY IF APPLICATION IS MADE PRIOR TO THE DATE OF
REQUIRED COMPLIANCE, AND MUST BE SUPPORTED BY THE AGENCY'S
DETERMINATION THAT THE SOURCE'S CONTINUED OPERATION "IS ESSENTIAL TO
NATIONAL SECURITY OR TO THE PUBLIC HEALTH OR WELFARE."  PETITIONERS, ON
THE OTHER HAND, RELY ON THE REVISION AUTHORITY OF SEC. 110(A)(3) FOR
THE CONTENTION THAT A STATE PLAN MAY PROVIDE FOR AN INDIVIDUAL VARIANCE
FROM GENERALLY APPLICABLE EMISSION LIMITATIONS SO LONG AS THE VARIANCE
DOES NOT CAUSE THE PLAN TO FAIL TO COMPLY WITH THE REQUIREMENTS OF SEC.
110(A)(2).  SINCE A VARIANCE WOULD NORMALLY IMPLICATE ONLY THE SEC. 110
(A)(2)(A) REQUIREMENT THAT PLANS PROVIDE FOR ATTAINMENT AND MAINTENANCE
OF NATIONAL AMBIENT AIR STANDARDS, TREATMENT AS REVISIONS WOULD RESULT
IN VARIANCES BEING READILY APPROVED IN TWO SITUATIONS:  FIRST, WHERE
THE VARIANDE DOES NOT DEFER COMPLIANCE BEYOND THE ATTAINMENT DATE; /15/
AND SECOND, WHERE THE NATIONAL STANDARDS HAVE BEEN ATTAINED AND THE
VARIANCE IS NOT SO GREAT THAT A PLAN INCORPORATING IT COULD NOT INSURE
THEIR CONTINUED MAINTENANCE.  MOREOVER, A SEC. 113 (A)(3) REVISION MAY
BE GRANTED ON THE BASIS OF HEARINGS CONDUCTED BY THE STATE, WHEREAS A
SEC. 110(F) POSTPONEMENT IS AVAILABLE ONLY AFTER THE AGENCY ITSELF
CONDUCTS HEARINGS. 

THERE IS THUS CONSIDERABLE PRACTICAL IMPORTANCE ATTACHED TO THE
ISSUE OF WHETHER VARIANCES ARE TO BE TREATED AS REVISIONS OR AS
POSTPONEMENTS, OR FOR THAT MATTER, AS THE FIRST CIRCUIT WOULD HAVE IT,
AS NEITHER UNTIL THE MANDATORY ATTAINMENT DATE BUT AS POSTPONEMENTS
THEREAFTER.  THIS PRACTICAL IMPORTANCE REACHES NOT MERELY THE OPERATOR
OF A PARTICULAR SOURCE WHO BELIEVES THAT CIRCUMSTANCES JUSTIFY HIS
RECEIVING A VARIANCE FROM CATEGORICAL LIMITATIONS.  IT ALSO REACHES THE
BROADER ISSUE OF WHETHER CONGRESS INTENDED THE STATES TO RETAIN ANY
SIGNIFICANT DEGREE OF CONTROL OF THE MANNER IN WHICH THEY ATTAIN AND
MAINTAIN NATIONAL STANDARDS, AT LEAST ONCE THEIR INTITIAL PLANS HAVE
BEEN APPROVED OR, UNDER THE FIRST CIRCUITS APPROACH, ONCE THE MANDATORY
ATTAINMENT DATE HAS ARRIVED.  TO EXPLAIN OUR CONCLUSION AS TO CONGRESS'
INTENT, IT IS NECESSARY THAT WE CONSIDER THE REVISION AND POSTPONEMENT
ACT, PARTICULARLY THOSE WHICH DISTINGUISHED BETWEEN NATIONAL AMBIENT
AIR STANDARDS AND EMISSION LIMITATIONS. 

AS WE HAVE ALREADY NOTED, PRIMARY AMBIENT AIR STANDARDS DEAL WITH
THE QUALITY OF OUTDOOR AIR, AND ARE FIXED ON A NATIONWIDE BASIS AT
LEVELW WHICH THE AGENCY DETERMINES WILL PROTECT THE PUBLIC HEALTH.  IT
IS ATTAINMENT AND MAINTENANCE OF THESE NATIONAL STANDARDS WHICH SEC.
110(A) (2)(A) REQUIRES THAT STATE PLANS PROVIDE.  IN COMPLYING WITH
THIS REQUIREMENT A STATE'S PLAN MUST INCLUDE "EMISSION LIMITATIONS,"
WHICH ARE REGULATIONS OF THE COMPOSITION OF SUBSTANCES EMITTED INTO THE
AMBIENT AIR FROM SUCH SOURCES AS POWER PLANTS, SERVICE STATIONS AND THE
LIKE.  THEY ARE THE SPECIFIC RULES TO WHICH OPERATORS OF POLLUTION
SOURCES ARE SUBJECT, AND WHICH IF ENFORCED SHOULD RESULT IN AMBIENT AIR
WHICH MEETS THE NATIONAL STANDARDS. 

THE AGENCY IS PLAINLY CHARGED BY THE ACT WITH THE RESPONSIBILITY FOR
SETTING THE NATIONAL AMBIENT AIR STANDARDS.  JUST AS PLAINLY, HOWEVER,
IT IS RELEGATED BY THE ACT TO A SECONDARY ROLE IN THE PROCESS OF
DETERMINING AND ENVORCING THE SPECIFIC, SOURCE-BY-SOURCE EMISSION
LIMITATIONS WHICH ARE NECESSARY IT THE NATIONAL STANDARDS IT HAS SET
ARE TO BE MET.  /16/ UNDER SEC. 110(A)(2), THE AGENCY IS REQUIRED TO
APPROVE A STATE PLAN WHICH PROVIDES FOR THE TIMELY ATTAINMENT AND
SUBSEQUENT MAINTENANCE OF AMBIENT AIR STANDARDS, AND WHICH ALSO
SATISFIES THAT SECTION'S OTHER GENERAL REQUIREMENTS.  THE ACT GIVES THE
AGENCY NO AUTHORITY TO QUESTION THE WISDOM OF A STATEHS CHOICES OF
EMISSION LIMITATIONS IF THEY ARE PART OF A PLAN WHICH SATISFIES THE
STANDARDS OF SEC. 110(A)(2), AND THE AGENCY MAY DEVISE AND PROMULGATE A
SPECIVIC PLAN OF ITS OWN ONLY IF A STATE FAILS TO SUBMIT AN
IMPLEMENTATION PLAN WHICH SATISFIES THOSE STANDARDS.  SEC. 110(C). 
THUS, SO LONG AS THE ULTIMATE EFFECT OF A STATE'S CHOICE OF EMISSION
LIMITATIONS IS COMPLIANCE WITH THE NATIONAL STANDARDS FOR AMBIENT AIR,
THE STATE IS AT LIBERTY TO ADOPT WHATEVER MIX OF EMISSION LIMITATIONS
IT DEEMS BEST SUITED TO ITS PARTICULAR SITUATION. 

THIS ANALYSIS OF THE ACT'S DIVISION OF RESPONSIBILITIES IS NOT
CHALLENGED BY RESPONDENTS INSOFAR AS IT CONCERNS THE PROCESS OF
DEVISING AND PROMULGATING AN INITIAL IMPLEMENTATION PLAN.  RESPONDENTS
DO, HOWEVER, DENY THAT THE STATES HAVE SUCH LATITUDE ONCE THE INITIAL
PLAN IS APPROVED.  YET THE THIRD PARAGRAPH OF SEC. 110(A), AND THE ONE
IMMEDIATELY FOLLOWING THE PARAGRAPHS WHICH SPECIFY THAT STATES SHALL
FILE IMPLEMENTATION PLANS AND THAT THE AGENCY SHALL APPROVE THEM IF
THEY SATISFY CERTAIN BROAD CRITERIA, IS THE SECTION WHICH REQUIRES THE
AGENCY TO "APPROVE ANY REVISION OF AN IMPLEMENTATION PLAN" IF IT
"DETERMINES THAT IT MEETS THE REQUIREMENTS" OF SEC. 110 (A)(2).  ON ITS
FACE, THIS PROVISION APPLIES TO ANY REVISION, WITHOUT REGARD EITHER TO
ITS BREADTH OF APPLICABILITY, OR TO WHETHER IT IS TO BE EFFECTIVE
BEFORE OR AFTER THE ATTAINMENT DATE; RATHER, AGENCY APPROVAL IS SUBJECT
ONLY TO THE CONDITION THAT THE REVISED PLAN SATISFY THE GENERAL
REQUIREMENTS APPLICABLE TO ORIGINAL IMPLEMENTATION PLANS.  FAR FROM
EVINCING CONGRESSIONAL INTENT THAT THE AGENCY ASSUME CONTROL OF A
STATE'S EMISSION LIMITATIONS MIX ONCE ITS INITIAL PLAN IS APPROVED, THE
REVISION SECTION IS TO ALL APPEARANCES THE MECHANISM BY WHICH THE
STATES MAY OBTAIN APPROVAL OF THEIR DEVELOPING POLICY CHOICES AS TO THE
MOST PRACTICABLE AND DESIRABLE METHODS OR RESTRICTING TOTAL EMISSIONS
TO A LEAVL WHICH IS CONSISTENT WITH THE NATIONAL AMBIENT AIR
STANDARDS. 

IN ORDER TO CHALLENGE THIS CHARACTERIZATION OF SEC. 110 (A)(3),
RESPONDENTS PRINCIPALLY RELY ON THE CONTENTION THAT THE POSTPONEMENT
PROVISION, SEC. 110(F), IS THE ONLY MECHANISM BY WHICH EXCEPTIONS TO A
PLAN'S REQUIREMENTS MAY BE OBTAINED, UNDER ANY CIRCUMSTANCES.  WERE
THIS AN ACCURATE DESCRIPTION OF SEC. 110(F), WE WOULD AGREE THAT THE
REVISION AUTHORITY DOES NOT HAVE THE BROAD APPLICATION ASSERTED BY THE
AGENCY.  LIKE THE NINTH CIRCUIT, /17/ HOWEVER, WE BELIEVE THAT SEC.
110(;) SERVES A FUNCTION DIFFERENT FROM THAT OF SUPERVISING STATE
EFFORTS TO MODIFY THE INITIAL MIX OF EMISSION LIMITATIONS BY WHICH THEY
IMPLEMENT NATIONAL STANDARDS. 

IN OUR VIEW, SEC. 110(F) IS A SAFETYVALVE BY WHICH MAY BE ACCORDED,
UNDER CERTAIN CAREFULLY SPECIFIED CIRCUMSTANCES, EXCEPTIONS TO THE
NATIONAL STANDARDS THEMSELVES.  THAT THIS IS ITS ROLE IS STRONGLY
SUGGESTED BY THE PROCESS BY WHICH IT BECAME A PART OF THE CLEAN AIR
ACT.  THE HOUSE VERSION OF THE AMENDMENT, H.R. 17255, 91ST CONG., 2D
SESS., CONTAINED NO PROVISIONS FOR EITHER POSTPONEMENTS OR, MOST
SIGNIFICANTLY, MANDATORY DEADLINES FOR THE ATTAINMENT OF NATIONAL
AMBIENT AIR STANDARDS.  THE SENATE BILL, S. 4358, 91ST CONG., 2D SESS.,
DID CONTAIN BOTH THE THREE-YEAR DEADLINE, WHICH NOW APPEARS IN SEC.
110(A)(2), AND THE PREDECESSOR OF THE PRESENT SEC. 110 (F).  THAT
PREDECESSOR /18/ PERMITTED THE GOVERNOR OF A STATE TO PETITION A THREE
JUDGE DISTRICT COURT FOR "RELIEF FROM THE EFFECT" OF EXPIRATION OF THE
THREE-YEAR DEADLINE AS TO A REGION OR PERSONS, AND PROVIDED FOR THE
GRANT OF SUCH RELIEF UPON A SHOWING OF CONDITIONS SIMILAR TO THOSE NOW
APPEARING IN SEC. 110(F).  UNDER ITS LANGUAGE THE POSTPONEMENT
PROVISION PLAINLY APPLIED ONLY WHEN DEFERRAL OF A NATIONAL DEADLINE WAS
SOUGHT.  /19/ 

THE CONFERENCE COMMITTEE ADOPTED THE SENATE'S GENERAL APPROACH TO
THE DEADLINE ISSUE.  ITS REPORT STATES: 

     " THE CONFERENCE SUBSTITUTE FOLLOWS THE SENATE AMENDMENT IN

ESTABLISHING DEADLINES FOR IMPLEMENTING PRIMARY AMBIENT AIR

  QUALITY STANDARDS BUT LEAVES THE STATES FREE TO ESTABLISH A

  REASONABLE TIME PERIOD WITHIN WHICH SECONDARY AMBIENT AIR QUALITY

  STANDARDS WILL BE IMPLEMENTED.  THE CONFERENCE SUBSTITUTE

  MODIFIES THE SENATE AMENDMENT IN THAT IT ALLOWS THE ADMINISTRATOR

  TO GRANT EXTENSIONS FOR GOOD CAUSES SHOWN UPON APPLICATION BY THE

  GOVERNORS."  H.CONF.  REP. NO. 91 - 1783, P. 45 (1970). 
(EMPHASIS

  ADDED.) 

NOWHERE DOES THE REPORT SUGGEST THAT OTHER CHANGES IN THE SENATE'S
PROPOSED SEC. 111 (F) WERE INTENDED TO DRAMATICALLY BROADEN ITS REACH,
SUCH THAT IT WOULD NOT MERELY BE AVAILABLE TO OBTAIN DEFERRAL OF THE
STRICT DEADLINES FOR COMPLIANCE WITH NATIONAL STANDARDS, BUT WOULD ALSO
BE THE EXCLUSIVE MECHANISM FOR ANY AMELIORATIVE MODIFICATION OF A PLAN,
NO MATTER HOW MINOR. 

THAT THE POSTPONEMENT PROVISION WAS INTENDED MERELY AS A METHOD OF
ESCAPE FROM THE MANDATORY DEADLINES BECOMES EVEN CLEARER WHEN ONE
CONSIDERS THE SUMMARY OF THE CONFERENCE'S WORK WHICH SENATOR MUSKIE
PRESENTED TO THE SENATE.  THE SUMMARY REFERRED TO A PROVISION UNDER
WHICH A SINGLE TWO-YEAR EXTENSION OF THE DEADLINE COULD BE OBTAINED
WERE IT SHOWN TO BE NECESSARY AT THE TIME A STATEHS INITIAL PLAN WAS
SUBMITTED.  IT THEN IMMEDIATELY DISCUSSED THE POSTPONEMENT PROVISION,
AS FOLLOWS: 

     " A GOVERNOR MAY ALSO APPLY FOR A POSTPONEMENT OF THE DEADLINE

  IF, WHEN THE DEADLINE APPROACHES, IT IS IMPOSSIBLE FOR A SOURCE

  TO MEET A REQUIREMENT UNDER AN IMPLEMENTATION PLAN, INTERIM

  CONTROL MEASURES HAVE REDUCED (OR WILL REDUCE) THE ADVERSE HEALTH

  EFFECTS OF THE SOURCE, AND THE CONTINUED OPERATION OF THE SOURCE

  IS EXXENTIAL TO NATIONAL SECURITY OR THE PUBLIC HEALTH OR WELFARE

  OF THAT STATE."  116 CONG. REC. 42384 - 42385.  (EMPHASIS
ADDED.) 

THIS LIMITED VIEW OF THE ROLE OF SED.  110(F) IS REINFORCED BY
COMPARISON WITH THE SECTION WHICH IMMEDIATELY PRECEDES IT IN THE
STATUTE, SEC. 110(E).  /20/ THIS IS THE PORVISION TO WHICH SENATOR
MUSKIE'S SUMMARY WAS OBVIOUSLY REFERRING WHEN IT STATED THAT THE THREE
YEAR DEADLINE COULD BE EXTENDED FOR UP TO TWO YEARS IF PROPER
APPLICATION WERE MADE AT THE TIME A STSTE FIRST SUBMITTED ITS PLAN. 
LIKE SEC. 110(F) SEC. 110(E) IS AVAILABLE ONLY IF AN EMISSION SOURCE IS
UNABLE TO COMPLY WITH PLAN REQUIREMENT'S BECAUSE "THE NECESSARY
TECHNOLOGY OR OTHER ALTERNATIVES ARE NOT AVAILABLE OR WILL NOT BE
AVAILABLE SOON ENOUGH TO PERMIT COMPLIANCE."  SECTION 110(E) ALSO
CONTAINS A REQUIREMENT PARALLEL TO THAT OF SEC. 110(F)(1)(C), THAT
AVAILABLE ALTERNATIVE PROCEDURES AND CONTROL MEASURES HAVE BEEN
CONSIDERED AND UTILIZED.  UNLIKE SEC 110(F), HOWEVER, SEC. 110(E)
CONTAINS NO REQUIREMENT THAT "THE CONTINUED OPERATION OF SUCH SOURCE IS
ESSENTIAL TO NATIONAL SECURITY OR TO THE PUBLIC HEALTH OR WELFARE." 
CONSIDERABLY LESS STRINGENT THAN THAT REQUIRED FOR A SEC. 110(F) ONE
YEAR POSTPONEMENT.  THIS DISPARITY IS QUITE LOGICAL, HOWEVER, BECAUSE
THE RELIEF UNDER SEC. 110(E) IS LIMITED TO AN INITIAL TWO-YEAR PERIOD,
WHEREAS THAT UNDER SEC. 110(F) IS AVAILABLE AT ANY TIME, SO LONG AS
APPLICATION IS MADE PRIOR TO THE EFFECTIVE DATE OF THE RELEVANT
REQUIREMENT.  /21/ 

ON THE OTHER HAND, THE DISPARITY BETWEEN THE STANDARDS OF SEC.
110(E) AND THOSE OF SEC. 110(F) WOULD BE INEXPLICABLE WERE SEC. 110(F)
ALSO THE SOLE MECHANISM BY WHICH STATES COULD MODIFY THE PARTICULAR
EMISSION LIMITATIONS MIX INCORPORATED IN THEIR INITIAL IMPLEMENTATION
PLANS, EVEN THOUGH THE DESIRE MODIFICATIONS WOULD HAVE NO IMPACT ON THE
ATTAINMENT OR MAINTENANCE OF NATIONAL STANDARDS.  RESPONDENTS'
INTERPRETATION REQUIRES THE ANOMALOUS CONCLUSION THAT CONGRESS, HAVING
STATED ITS GOAL TO BE THE ATTAINMENT AND MAINTANANCE OF SPECIFIED
AMBIENT AIR STANDARDS, NONETHELESS MADE IT SIGNIFICANTLY MORE DIFFICULT
FOR A STATE TO MODIFY AN EMISSION LIMITATIONS MIX WHICH MET THOSE
STANDARDS BOTH BEFORE AND AFTER MODIFICATION THAN FOR A STATE TO OBTAIN
A TWO-YEAR DIFFERAL IN THE ATTAINMENT OF THE STANDARDS THEMSELVES.  THE
INTERPRETATION SUFFERS, THEREFORE, NOT ONLY FROM ITS CONTRARIETY TO THE
REVISION AUTHORITY WHICH CONGRESS PROVIDED, BUT ALSO FROM ITS
WILLINGNESS TO ASCRIBE INCONSISTENCY TO A CAREFULLY CONSIDERED
CONGRESSIONAL ENACTMENT. 

WE BELIEVE THAT THE FOREGOING ANALYSIS OF THE STRUCTURE AND
LEGISLATIVE HISTORY OF THE CLEAN AIR AMENDMENTS SHOWS THAT CONGRESS
INTENDED TO IMPOSE NATIONAL AMBIENT AIR STANDARDS TO BE ATTAINED WITHIN
A SPECIFIC PERIOD OF TIME.  IT ALSO SHOWS THAT IN SEC. 110(E) AND (F)
CONGRESS CAREFULLY LIMITED THE CIRCUMSTANCES IN WHICH TIMELY ATTAINMENT
AND SUBSEQUENT MAINTENANCE OF THESE STANDARDS COULD BE COMPROMISED.  WE
ALSO BELIEVE THAT CONGRESS, CONSISTENT WITH ITS DECLARATION THAT "(E)
ACH STATE SHALL HAVE THE PRIMARY RESPONSIBILITY FOR ASSURING AIR
QUALITY" WITHIN ITS BOUNDARIES, SEC. 107(A), LEFT TO THE STATES
CONSIDERABLE LATITUDE IN DETERMINING SPECIFICALLY HOW THE STANDARDS
WOULD BE MET.  THIS DISCRETION INCLUDES THE CONTINUING AUTHORITY TO
REVISE CHOICES ABOUT THE MIX OF EMISSION LIMITATIONS.  WE THEREFORE
CONCLUDE THAT THE AGENCY'S INTERPRETATION OF SEC. 110(A)(3) AND 110(F)
WAS "CORRECT," TO THE EXTENT THAT IT CAN BE SAID WITH COMPLETE
ASSURANCE THAT ANY PARTICULAR INTERPRETATION OF A COMPLEX STATUTE SUCH
AS THIS IS THE "CORRECT" ONE.  GIVEN THIS CONCLUSION, AS WELL AS THE
FACTS THAT THE AGENCY IS CHARGED WITH ADMINISTRATION OF THE ACT, AND
THAT THERE HAS UNDOUBTEDLY BEEN RELIANCE UPON ITS INTERPRETATION BY THE
STATES AND OTHER PARITES AFFECTED BY THE ACT, WE HAVE NO DOUBT WHATEVER
THAT ITS CONSTRUCTION WAS SUFFICIENTLY REASONABLE TO PRECLUDE THE COURF
OF APPEALS FROM SUBSTITUTING ITS JUDGMENT FOR THAT OF THE AGENCY. 
UDALL V. TALLMAN, 380 U.S. 1, 16 - 18 (1965); MC LAREN V. FLEISCHER,
256 U.S. 477, 480 - 481 (1921).  WE ARE NOT PERSUADED TO THE CONTRARY
BY ANY OF THE ARGUMENTS ADVANCED BY RESPONDENTS OR BY THE COURTS OF
APPEALS WHICH HAVE REJECTED SEC. 1110(A)(3) AS AUTHORITY FOR GRANTING
VARIANCES.  TO THESE VARIOUS ARGUMENTS WE NOW TURN. 

IV 

THE PRINCIPAL BASIS ON WHICH THE FIFTH CIRCUIT REJECTED THE AGENCY'S
VIEW OF THE REVISION AND POSTPONEMENT SECTIONS WAS ITS ANALYSIS OF
THEIR LANGUAGE.  THE COURT FOCUSED FIRST ON THE FACT THAT SEC. 110(F)
SPEAKS IN TERMS OF "ANY STATIONARY SOURCE," AND OF THE POSTPONEMENT OF
"ANY REQUIREMENT OF AN APPLICABLE IMPLEMENTATION PLAN."  (EMPHASIS
ADDED.)  THIS LANGUAGE, ACCORDING TO THE FIFTH CIRCUIT, BELIES THE
AGENCY'S CONTENTION THAT THE POSTPONEMENT SECTION IS INAPPLICABLE TO
THOSE VARIANCES WHICH DO NOT JEOPARDIZE THE ATTAINMENT OR MAINTENANCE
OF NATIONAL STANDARDS.  THE COURT WENT ON TO STATE, WITHOUT CITATION OR
SUPPORTING REASONING: 

" A REVISION IS A CHANGE IN A GENERALLY APPLICABLE REQUIREMENT; A
POSTPONEMENT OR VARIANCE (IS A) CHANGE IN THE APPLICATION OF A
REQUIREMENT TO A PARTICULAR PARTY.  THE DISTINCTION BETWEEN THE TWO IS
FAMILIAR AND CLEAR."  489 F.2D 390, 401. 

WE THINK THAT THE FIFTH CIRCUIT HAS READ MORE INTO SEC. 110(F), AND
MORE OUT OF SEC. 110(A)(3), THAN CAREFUL ANALYSIS CAN SUSTAIN.  IN THE
FIRST PLACE, THE "ANY STATIONARY SOURCE" AND "ANY REQUIREMENT" LANGUAGE
OF SEC. 110 (F) SERVES ONLY TO DEFINE THE MATTERS WITH RESPECT TO WHICH
THE GOVERNOR OF A STATE MAY APPLY FOR A POSTPONEMENT.  THE LANGUAGE
DOES NOT, AS THE FIFTH CIRCUIT WOULD HAVE IT, STATE THAT ALL SOURCES
DESIROUS OF ANY FORM OF RELIEF MUST RELY SOLELY ON THE POSTPONEMENT
PROVISION.  WHILE SEC. 110(F) MAKES ITS RELIEF AVAILABLE TO ANY SOURCE
WHICH CAN QUALIFY FOR IT, REGARDLESS OF WHETHER THE RELIEF WOULD
JEOPARDIZE NATIONAL STANDARDS, THE SECTION DOES NOT EVEN SUGGEST THAT
OTHER FORMS OF RELIEF, HAVING NO IMPACT ON THE NATIONAL GOAL OF
ACHIEVING AIR QUALITY STANDARDS, ARE NOT ALSO AVAILABLE ON
APPROPRIATELY LESS RIGOROUS SHOWINGS. 

AS FOR THE FIFTH CIRCUIT'S OBSERVATION THAT "A REVISION IS A CHANGE
IN A GENERALLY APPLICABLE REQUIREMENT," WHEREAS A "POSTPONEMENT OR
VARIANCE" DEALS WITH PARTICULAR PARTIES, WE ARE NOT SATISFIED THAT THE
DISTINCTION IS SO "FAMILIAR AND CLEAR."  WHILE A VARIANCE IS GENERALLY
THOUGHT TO BE OF SPECIFIC APPLICABILITY, /22/ WHETHER A REVISION IS
GENERAL OR SPECIFIC DEPENDS ON WHAT IS BEING REVISED.  IN THIS
INSTANCE, IT IS IMPLEMENTATION PLANS WHICH ARE BEING REVISED, AND IT IS
CLEAR THAT SUCH PLANS MAY BE QUITE DETAILED, BOTH AS TO SOURCES AND THE
REMEDIAL STEPS REQUIRED OF THE SOURCES.  NOT ONLY DOES SEC.
110(A)(2)(B) SPECIFY THAT A PLAN SHALL INCLUDE "EMISSION LIMITATIONS,
SCHEDULES, AND TIMETABLES FOR COMPLEANCE," /23/ BUT RESPONDENTS
THEMSELVES HAVE URGED THAT THE VERY SPECIFIC VARIANCES WHICH HAVE
ALREADY BEEN GRANTED IN GEORGIA SHOULD HAVE BEEN, AND MAY STILL BE,
TREATED AS "COMPLIANCE SCHEDULES" CONTAINED WITHIN THE ORIGINAL PLAN. 
/24/ 

A FURTHER DIFFICULTY WITH THE FIFTH CIRCUIT'S ANALYSIS OF THE
LANGUAGE OF SEC. 110(A)(3) AND 110(F) IS THAT IT ENTIRELY OVERLOOKS AN
OBVIOUS DISTINCTION BETWEEN REVISIONS AND POSTPONEMENTS.  IN NORMAL
USAGE, TO "POSTPONE" IS TO DEFER, WHEREAS OT "REVISE" IS TO REMAKE OR
AMEND. IN THE IMPLEMENTATION PLAN CONTEXT, NORMAL USAGE WOULD SUGGEST
THAT A POSTPONEMENT IS A DEFERRAL OF THE EFFECTIVE DATE OF A
REQUIREMENT WHICH REMAINS A PART OF THE APPLICABLE PLAN, WHEREAS A
REVISION IS A CHANGE IN THE PLAN ITSELF WHICH DELETES OR MODIFIES THE
REQUIREMENT.  IF BY REVISION A REQUIREMENT OF A PLAN IS REMOVED, THEN A
PERSON SEEKING RELIEF FROM THAT REQUIREMENT HAS NO NEED TO SEEK ITS
POSTPONEMENT, AND SEC. 110(F) IS BY ITS TERMS INAPPLICABLE.  BUT IF
SUCH A PERSON CANNOT OBTAIN A REVISION, BECAUSE FOR EXAMPLE THE PLAN AS
SO REVISED WOULD NO LONGER INSURE TIMELY ATTAINMENT OF THE NATIONAL
STANDARDS, THEN UNDER THE ACT HE HAS NO ALTERNATIVE BUT TO COMPLY OR TO
OBTAIN A POSTPONEMENT OF THE REQUIREMENT'S EFFECTIVE DATE--IF HE CAN
SATISFY THE STRINGENT CONDITIONS OF SEC. 110(F).  THIS DISTINCTION
BETWEEN THE TWO IS SO STRAIGHTFORWARD, AND SO CONSISTENT WITH THE
STRUCTURE AND HISTORY OF THE ACT, AS DISCUSSED IN PART III OF THIS
OPINION, THAT WE PERCEIVE NO BASIS FOR THE FIFTH CIRCUIT'S STRAINED
LINE OF ANALYSIS.  /25/ 

THE FIFTH CIRCUIT ALSO RELIED ON THE "TECHNOLOGY FORCING" NATURE OF
THE CLEAN AIR AMENDMENTS OF 1970.  IT REASONED THAT BECAUSE THE STATUTE
WAS INTENDED TO FORCE TECHNOLOGY TO MEET SPECIFIED, SCHEDULED
STANDARDS, IT WAS ESSENTIAL TO INSURE THAT COMMITMENTS MADE AT THE
PLANNING STAGE COULD NOT BE READILY ABANDONED WHEN THE TIME FOR
COMPLIANCE ARRIVED.  ACCORDING TO THE FIFTH CIRCUIT, SEC. 110(F) "IS
THE DEVICE CONGRESS CHOSE TO ASSURE THIS."  489 F.2D, AT 401.  CLEARLY
SEC. 110(F) DOES PRESENT A FORMIDABLE HURDLE FOR THOSE PROPOSED
DEPARTURES FROM EARLIER COMMITMENTS WHICH ARE IN FACT SUBJECT TO ITS
STRINGENT CONDITIONS.  WHAT THE FIFTH CIRCUIT FAILED TO CONSIDER,
HOWEVER, IS THAT SO LONG AS THE NATIONAL STANDARDS ARE BEING ATTAINED
AND MAINTAINED, THERE IS NO BASIS IN THE PRESENT CLEAN AIR ACT FOR
FORCING FURTHER TECHNOLOGICAL DEVELOPMENTS.  AGENCY REVIEW ASSURES THAT
VARIANCES GRANTED UNDER SEC. 110(A)(3) WILL BE CONSISTENT WITH THE SEC.
110(A)(2)(A) REQUIREMENT THAT THE NATIONAL STANDARDS BE ATTAINED AS
EXPEDITIOUSLY AS PRACTICABLE AND MAINTAINED THEREAFTER.  THUS SEC.
110(A)(3) VARIANCES EX HYPOTHESI DO NOT JEOPARDIZE NATIONAL STANDARDS,
AND THE TECHNOLOGY-FORCING CHARACTER OF THE AMENDMENTS IS NO REASON AT
ALL FOR JUDGING THEM UNDER THE PROVISIONS OF SEC. 110(F). 

THE FIRST CIRCUIT ALSO REJECTED THE AGENCY'S CONTENTION THAT
VARIANCES COULD BE HANDLED UNDER THE REVISION PROCEDURE, SUPRA, AT 72 -
73, BUT IT DID SO FOR REASONS DIFFERENT FROM THOSE RELIED UPON BY THE
FIFTH CIRCUIT.  /26/ IT STATED: 

" HAD CONGRESS MEANT (SEC 110(F)) TO BE FOLLOWED ONLY IF A PLLUTER,
BESIDES VIOLATING OBJECTIVE STATE REQUIREMENTS, WAS SHOWN TO BE
PREVENTING MAINTENANCE OF A NATIONAL STANDARD, IT WOULD HAVE SAID SO.
TO ALLOW A POLLUTER TO RAISE AND PERHAPS LITIGATE THAT ISSUE IS TO
INVITE PROTRACTED DELAY.  THE FACTUAL QUESTION COULD HAVE ENDLESS
REFINEMENTS:  IS IT THE INDIVIDUAL VARIANCE-SEEKER OR OTHERS WHOSE
POLLUTION IS PREVENTING MAINTENANCE OF STANDARDS?  SEE E.G., GETTY OIL
COMPANY V. RUCKELSHAUS, 342 F.SUPP.  1006 (D.DEL.  1972), REMANDED WITH
DIRECTIONS, 467 F.2D 349 (3RD CIR. 1972),...WHERE GETTY RAISED THIS
ISSUE IN VARIOUS FORUMS."  478 F.2D, AT 886. 

RESPONDENTS ALSO STRESS THIS ARGUMENT:  TREATING VARIANCES AS
REVISIONS RATHER THAN AS POSTPONEMENTS WOULD INVITE LITIGATION, WOULD
BE IMPRACTICAL IN APPLICATION, AND WOULD THEREFORE RESULT IN
DEGRADATION OF THE ENVIRONMENT.  ASIDE FROM THE FACT THAT IT GOES MORE
TO THE WISDOM OF WHAT CONGRESS HAS CHOSEN TO DO THAN TO DETERMINING
WHAT CONGRESS HAS ONE, WE BELIEVE THIS ARGUMENT TO BE OVERSTATED.  AS
MADE CLEAR IN THE GETTY CASE CITED BY THE FIRST CIRCUIT, A POLLUTER IS
SUBJECT TO EXISTING REQUIREMENTS UNTIL SUCH TIME AS HE OBTAINS A
VARIANCE, AND VARIANCES ARE NOT AVAILABLE UNDER THE REVISION AUTHORITY
UNTIL THEY HAVE BEEN APPROVED BY BOTH THE STATE AND THE AGENCY.  SHOUED
EITHER ENTITY DETERMINE THAT GRANTING THE VARIANCE WOULD PREVENT
ATTAINMENT OR MAINTENANCE OF NATIONAL AIR STANDARDS, THE POLLUTER IS
PRESUMABLY WITHIN HIS RIGHTS IN SEEKING JUDICIAL REVIEW.  THIS
LITIGATION, HOWEVER, IS CARRIED OUT ON THE POLLUTER'S TIME, NOT THE
PUBLIC'S FOR DURING ITS PENDENCY THE ORIGINAL REGULATIONS REMAIN IN
EFFECT, AND THE POLLUTER'S FAILURE TO COMPLY MAY SUBJECT HIM TO A
VARIETY OF ENFORCEMENT PROCEDURES.  /27/ 

WE ARE FURTHER IMPRESSED THAT THE AGENCY ITSELF HAS DISPLAYED NO
CONCERN FOR THE PURPORTED ADMINISTRATIVE DIFFICULTY OF TREATING
VARIANCES AS REVISIONS.  ORDINARILY, AN AGENCY MAY BE ASSUMED CAPABLE
OF MEETING THE RESPONSIBILITIES WHICH IT CONTENDS ARE PLACED UPON IT.
WHERE RESPONDENTS ABLE TO MAKE A CONTRARY SHOWING, THAT FACT MIGHT HAVE
SOME WEIGHT IN INTERPRETING CONGRESS' INTENT, ALTHOUGH WE WOULD DOUBT
IS RELEVANCE UNLESS CONGRESS WERE ALSO SHOWN TO HAVE BEEN AWARE OF THE
PROBLEM WHEN IT DRAFTED LEGISLATION WHICH OTHERWISE IS CONSISTENT WITH
THE AGENCY'S CONTENTIONS.  RESPONDENTS HAVE MADE NO SUCH SHOEINGS.  THE
JUDGMENTS WHICH THE AGENCY MUST MAKE WHEN PASSING ON VARIANCES UNDER
SEC. 110(A)(3) ARE WHETHER THE AMBIENT AIR COMPLIES WITH NATIONAL
STANDARDS, AND IF SO WHETHER A PROPOSED VARIANCE WOULD CAUSE A PLAN TO
FAIL TO INSURE MAINTENANCE OF THOSE STANDARDS.  THESE JUDGMENTS ARE
LITTLE DIFFERENT FROM THOSE WHICH THE AGENCY HAD TO MAKE WHEN IT
APPROVED THE INITIAL PLANS INTO WHICH RESPONDENTS SEEK TO HAVE THE
ATATES FROZEN.  IN EACH INSTANCE THE AGENCY MUST MEASURE THE EXISTING
LEVEL OF POLLUTION, COMPARE IT WITH THE NATIONAL STANDARDS, AND
DETERMINE THE EFFECT ON THIS COMPARISON OF SPECIFIED EMISSION
MODIFICATIONS.  /28/ THAT CONGRESS IS OF THE OPINION THAT THE AGENCY
CAN FEASIBLY AND RELIABLY PERFORM THESE FUNCTIONS IS MANIFEST NOT ONLY
IN ITS 1970 LEGISLATION, BUT ALSO IN A 1974 AMENDMENT DESIGNED TO
CONSERVE ENERGY.  THE AMENDMENT PROVIDES THAT THE AGENCY SHOULD REPORT
TO EACH STATE ON WHETHER ITS IMPLEMENATATIN PLAN COULD BE REVISED IN
RELATION TO FUEL BURNING STATIONARY SOURCES, "WITHOUT INTERFERING WITH
THE ATTAINMENT AND MAINTENANCE OF ANY NATIONAL AMBIENT AIR QUALITY
STANDARD."  SEC. 110(A)(3)(B) OF THE CLEAN AIR ACT, AS ADDED, 88 STAT.
256, 42 U.S.C.A. SEC. 1857C-5(A)(3)(B) (SUPP. 1975).  (EMPHASIS
ADDED.) 

        V. 

RESPONDENTS HAVE PUT FORWARD SERVERAL ADDITIONAL ARGUMENTS WHICH
HAVE NOT BEEN SPECIFICALLY ADOPTED BY ANY COURT OF APPEALS.  THE FIRST
IS BASED ON LEGISLATIVE HISTORY.  RESPONDENTS FOCUS ON THE FACT THAT
WHILE THE CONFERENCE COMMITTEE ACCEPTED THE SENATE'S CONCEPT OF A THREE
YEAR MAXIMUM DEADLINE FOR ATTAINMENT OF NATIONAL STANDARDS, IT ALSO
STRENGTHENED THE SENATE'S PROVISION BY SPECIFYING THAT ATTAINMENT
SHOULD BE ACHIEVED "AS EXPEDITIOUSLY AS PRACTICABLE BUT...IN NO CASE
LATER THAN THREE YEARS."  (EMPHASIS ADDED.)  RESPONDENTS FURTHER MAKE
THE CONTENTION THAT THE CONFERENCE COMMITTEE ALTERED THE SENATE'S
VERSION OF THE POSTPONEMENT PROVISION TO "PROVIDE THAT A SOURCE'S
ATTEMPT TO DELAY COMPLIANCE WITH 'ANY REQUIREMENT' OF A STATE PLAN
WOULD BE CONSIDERED A 'POSTPONEMENT.'"  BRIEF FOR RESPONDENTS 36. 
ACCORDING TO RESPONDENTS THE LATTER CHANGE "WAS NECESSARY TO CONFORM"
THE POSTPONEMENT PROVISION WITH THE CONFERENCE COMMITTEE'S "AS
EXPEDITIOUSLY AS PRACTICABLE"  REQUIREMENT.  /29/  THE ARGUMENT IS THAT
BECAUSE ANY VARIANCE WOULD DELAY ATTAINMENT OF NATIONAL STANDARDS
BEYOND THE DATE PREVIOUSLY CONSIDERED THE EARLIEST PRACTICABLE, AND
THAT BECAUSE THE ACT REQUIRES ATTAINMENT AS SOON AS PRACTICABLE, ANY
VARIANCE MUST THEREFORE BE TREATED AS A POSTPONEMENT.  THIS ARGUMENT IS
NOT PERSUASIVE, FOR MULTIPLE REASONS. 

FIRST, THIS INTERPRETATION OF THE CONFERENCE COMMITTEE'S WORK FINDS
NO SPECIFIC SUPPORT IN LEGISLATIVE DOCUMENTS OR DEBATES.  THIS IS TRUE
DESPITE THE SIGNIFICANCE OF THE CHANGE WHICH, UNDER RESPONDENTS'
INTERPRETATION, WAS MADE--THE EXPANSION OF SEC. 110(F) FROM A SAFETY
VALVE AGAINST MANDATORY DEADLINES INTO THE EXCLUSIVE MECHANISM BY WHICH
A STATE COULD MAKE EVEN MINOR MODIFICATIONS OF ITS EMISSION LIMITATIONS
MIX.  RESPONDENTS' INTERPRETATION ARISES INSTEAD FROM THEIR OWN READING
OF THE STATUTE AND INFERENCES AS TO LEGISLATIVE PURPOSE.  SECOND, AS WE
HAVE ALREADY DISCUSSED, AND CONTRARY TO RESPONDENTS' CONTENTION, SEC.
110(F) SIMPLY DOES NOT STATE THAT ANY DEFERRAL OF COMPLIANCE WITH "ANY
REQUIREMENT" OF A STATE PLAN "WOULD BE CONSIDERED A POSTPONEMENT." 
RATHER, IT MERELY STATES THAT POSTPONEMENT MAY BE SOUGHT WITH RESPECT
TO ANY SOURCE AND ANY REQUIREMENT. 

THIRD, RESPONDENTS' READING EQUATES "PRACTICABLE" IN SEC.
110(A)(2)(A) WITH SEC. 110(F)'S "ESSENTIAL TO NATIONAL SECURITY OR TO
THE PUBLIC HEALTH OR WELFARE."  YET PLAINLY THERE COULD BE MANY
CIRCUMSTANCES IN WHICH ATTAINMENT IN LESS THAT THREE YEARS WOULD BE
IMPRACTICABLE, AND THUS NOT REQUIRED, BUT IN WHICH DEFERRAL COULD NOT
POSSIBLY BE JUSTIFIED AS ESSENTIAL TO THE NATIONAL SECURITY, OR PUBLIC
HEALTH OR WELFARE.  /30/  FOURTH THE STATUTE REQUIRES ONLY ATTAINMENT
AS EXPEDITIOUSLY AS PRACTICABLE, NOT ATTAINMENT AS EXPEDITIOUSLY AS WAS
THOUGHT PRACTICABLE WHEN THE INITIAL IMPLEMENTATION PLAN WAS DEVISED. 
FINALLY, EVEN IF RESPONDENTS' ARGUMENT HAD FORCE WITH REGARD TO A
PREATTAINMENT VARIANCE, IT WOULD STILL BE OF NO RELEVANCE WHATSOEVER
ONCE THE NATIONAL STANDARDS WERE ATTAINED.  A VARIANCE WHICH DOES NOT
CONPROMISE NATIONAL STANDARDS THAT HAVE BEEN ATTAINED DOES NO DAMAGE TO
THE CONGRESSIONAL GOALS OF ATTAINING THE STANDARDS AS EXPEDITIOUSLY AS
PRACTICABLE AND MAINTAINING THEM THEREAFTER. 

THE LAST OF RESPONDENTS' ARGUMENTS WHICH MERIT OUR ATTENTION IS
RELATED TO THE FIFTH CIRCUIT'S CONCLUSION THAT REVISIONS ARE RESTRICTED
TO GENERAL REQUIREMENTS, AND THAT ALL SPECIFIC MODIFICATIONS MUST
THEREFORE BE FUNNELED THROUGH THE POSTPONEMENT PROVISION.  RESPONDENTS
GO ONE STEP FURTHER AND CONTEND THAT THE REVISION AUTHORITY IS LIMITED
NOT ONLY TO GENERAL CHANGES, BUT TO THOSE WHICH ALSO ARE INITIATED BY
THE AGENCY IN ORDER TO "ACCELERATE ABATEMENT OR ATTAIN IT IN GREATER
CONCETT WITH OTHER NATIONAL GOALS."  BRIEF FOR RESPONDENTS 26.  THIS
HIGHLY RESTRICTIVE VIEW OF SEC. 110(A)(3) IS BASED ON SEC. 110(A)
(2)(H), /31/ WHICH SPECIFIES THAT TO OBTAIN AGENCY APPROVAL A STATE'S
PLAN MUST PROVIDE A MECHANISM FOR REVISION TO TAKE ACCOUNT OF REVISED
NATIONAL STANDARDS, OF MORE EXPEDITIOUS METHODS OF ACHIEVING THE
STANDARDS, AND OF AGENCY DETERMINATIONS THAT A PLAN IS SUBSTANTIALLY
INADEQUATE. 

THE ARGUMENT IS SPECIOUS.  SECTION 110(A)(2)(H) DOES NOTHING MORE
THAN IMPOSE A MINIMUM REQUIREMENT THAT STATE PLANS BE CAPABLE OF SUCH
MODIFICATIONS AS ARE NECESSARY TO MEET THE BASIC GOAL OF CLEANSING THE
AMBIENT AIR TO THE EXTENT NECESSARY TO PROTECT PUBLIC HEALTH, AS
EXPEDITIOUSLY AS PRACTICABLE WITHIN A THREE-YEAR PERIOD.  THE SECTION
IN NO WAY PREVENTS THE STATES FROM ALSO PERMITTING AMELIORATIVE
REVISIONS WHICH DO NOT COMPROMISE THE BASIC GOAL.  NOR DOES IT, BY
REQUIRING A PARTICULAR TYPE OF REVISION, PRECLUDE THOSE OF A DIFFERENT
TYPE.  AS WE HAVE ALREADY NOTED, SEC. 110(A)(3) REQUIRES THE AGENCY TO
APPROVE "ANY REVISION" WHICH IS CONSISTENT WITH SEC. 110(A)(2)'S
MINIMUM STANDARDS FOR AN INITIAL PLAN, AND WHICH THE STATE ADOPTED
AFTER REASONABLE PUBLIC NOTICE AND HEARING; NO OTHER RESTRICTIONS
WHATSOEVER ARE PLACED ON THE AGENCY'S DUTY TO APPROVE REVISIONS.  /32/

        VI 

FOR THE FOREGOING REASONS, THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT WAS IN ERROR WHEN IT CONCLUDED THAT THE POSTPONEMENT PROVISION
OF SEC. 110(F) IS THE SOLE METHOD BY WHICH MAY BO OBTAINED SPECIFIC
AMELIORATIVE MODIFICATIONS OF STATE IMPLEMENTATION PLANS.  THE AGENCY
HAD PROPERLY CONCLUDED THAT THE REVISION MECHANISM OF SEC. 110 (A)(3)
IS AVAILABLE FOR THE APPROVAL OF THOSE VARIANCES WHICH DO NOT
COMPROMISE THE BASIC STATUTORY MANDATE THAT, WITH CAREFULLY
CIRCUMSCRIBED EXCEPTIONS, THE NATIONAL PRIMARY AMBIENT AIR STANDARDS BE
ATTAINED IN NOT MORE THAN THREE YEARS, AND MAINTAINED THEREAFTER.  TO
THE EXTENT THAT THE JUDGMENT OF THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT WAS TO THE CONTRARY, IT IS REVERSED AND THE CAUSE IS REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

         IT IS SO ORDERED. 

/1/ NATURAL RESOURCES DEFENSE COUNCIL, INC. V. EPA, 489 F.2D 390
(1974).  WE ISSUED A STAY OF THE CONTESTED PORTION OF THE COURT'S
JUDGMENT ON JUNE 10, 1974, 417 U.S. 942. 

/2/ SECTION 110(A)(2), 42 U.S.C. SEC. 1857C-5 (A)(2), READS AS
FOLLOWS: 

" THE ADMINISTRATOR SHALL, WITHIN FOUR MONTHS AFTER THE DATE
REQUIRED FOR SUBMISSION OF A PLAN UNDER PARAGRAPH (1), APPROVE OR
DISAPPROVE SUCH PLAN, OR EACH PORTION THEREOF.  THE ADMINISTRATOR SHALL
APPROVE SUCH PLAN, OR ANY PORTION THEREOF, IF HE DETERMINES THAT IT WAS
ADOPTED AFTER REASONABLE NOTICE AND HEARING AND THAT--, (A) (I) IN THE
CASE OF A PLAN IMPLEMENTING A NATIONAL PRIMARY AMBIENT AIR QUALITY
STANDARD, IT PROVIDES FOR THE ATTAINMENT OF SUCH PRIMARY STANDARD AS
EXPEDITIOUSLY AS PRACTICABLE BUT (SUBJECT TO SUBSECTION (E)) IN NO CASE
LATER THAN THREE YEARS FROM THE DATE OF APPROVAL OF SUCH PLAN (OR ANY
REVISION THEREOF TO TAKE ACCOUNT OF A REVISED PRIMARY STANDARD); AND
(II) IN THE CASE OF A PLAN IMPLEMENTING A NATIONAL SECONDARY AMBIENT
AIR QUALITY STANDARD, IT SPECIFIES A REASONABLE TIME AT WHICH SUCH
SECONDARY STANDARD WILL BE ATTAINED; 

"(B) IT INCLUDES EMISSION LIMITATIONS, SCHEDULES, AND TIMETABLES FOR
COMPLIANCE WITH SUCH LIMITATIONS, AND SUCH OTHER MEASURES AS MAY BE
NECESSARY TO INSURE ATTAINMENT AND MAINTENANCE OF SUCH PRIMARY OR
SECONDARY STANDARD, INCLUDING, BUT NOT LIMITED TO, LAND-USE AND
TRANSPORTATION CONTROLS; 

"(C) IT INCLUDES PROVISION FOR ESTABLISHMENT AND OPERATION OF
APPROPRIATE DEVICES, METHODS, SYSTEMS, AND PROCEDURES NECESSARY TO (I)
MONITOR, COMPILE, AND ANALYZE DATA ON AMBIENT AIR QUALITY AND, (II)
UPON REQUEST, MAKE SUCH DATA AVAILABLE TO THE ADMINISTRATOR; 

"(D) IT INCLUDES A PROCEDURE, MEETING THE REQUIREMENTS OF PARAGRAPH
(4), FOR REVIEW (PRIOR TO CONSTRUCTION OR MODIFICATION) OF THE LOCATION
OF NEW SOURCES TO WHICH A STANDARD OF PERFORMANCE WILL APPLY; 

"(E) IT CONTAINS ADEQUATE PROVISIONS FOR INTERGOVERNMENTAL
COOPERATION, INCLUDING MEASURES NECESSARY TO INSURE THE EMISSIONS OF
AIR POLLUTANTS FROM SOURCES LOCATED IN ANY AIR QUALITY CONTROL REGION
WILL NOT INTERFERE WITH THE ATTAINMENT OR MAINTENANCE OF SUCH PRIMARY
OR SECONDARY STANDARD IN ANY PORTION OF SUCH REGION OUTSIDE OF SUCH
STATE OR IN ANY OTHER AIR QUALITY CONTROL REGION; 

"(F) IT PROVIDES (I) NECESSARY ASSURANCES THAT THE STATE WILL HAVE
ADEQUATE PERSONNEL, FUNDING, AND AUTHORITY TO CARRY OUT SUCH
IMPLEMENTATION PLAN, (II) REQUIREMENTS FOR INSTALLATION OF EQUIPMENT BY
OWNERS OR OPERATORS OF STATIONARY SOURCES TO MONITOR EMISSIONS FROM
SUCH SOURCES, (III) FOR PERIODIC REPORTS ON THE NATURE AND AMOUNTS OF
SUCH EMISSIONS; (IV) THAT SUCH REPORTS SHALL BE CORRELATED BY THE STATE
AGENCY WITH ANY EMISSION LIMITATIONS OR STANDARDS ESTABLISHED PURSUANT
TO THIS ACT, WHICH REPORTS SHALL BE AVAILABLE AT REASONABLE TIMES FOR
PUBLIC INSPECTION; AND (V) FOR AUTHORITY COMPARABLE TO THAT IN SECTION
303, AND ADEQUATE CONTINGENCY PLANS TO IMPLEMENT SUCH AUTHORITY; 

"(G) IT PROVIDES, TO THE EXTENT NECESSARY AND PRACTICABLE, FOR
PERIODIC INSPECTION AND TESTING OF MOTOR VEHICLES TO ENFORCE COMPLIANCE
WITH APPLICABLE EMISSION STANDARDS; AND 

"(H) IT PROVIDES FOR REVISION, AFTER PUBLIC HEARINGS, OF SUCH PLAN
(I) FROM TIME TO TIME AS MAY BE NECESSARY TO TAKE ACCOUNT OF REVISIONS
OF SUCH NATIONAL PRIMARY OR SECONDARY AMBIENT AIR QUALITY STANDARD OR
THE AVAILABILITY OF IMPROVED OR MORE EXPEDITIOUS METHODS OF ACHIEVING
SUCH PRIMARY OR SECONDARY STANDARD; OR (II) WHENEVER THE ADMINISTRATOR
FINDS ON THE BASIS OF INFORMATION AVAILABLE TO HIM THAT THE PLAN IS
SUBSTANTIALLY INADEQUATE TO ACHIEVE THE NATIONAL AMBIENT AIR QUALITY
PRIMARY OR SECONDARY STANDARD WHICH IT IMPLEMENTS." 

/3/ WHILE SOURCES WOULD NOT BE SUBJECT TO ENFORCEMENT ACTIONS BASED
ON THEIR LEVELS OF EMISSIONS PRIOR TO THE ATTAINMENT DATE, THEY COULD
BE REQUIRED TO ADHERE TO SCHEDULES FOR THE PLANNING, CONTRACING, AND
CONSTRUCTION NECESSARY TO ASSURE THAT THEIR EMISSIONS WOULD BE WITHIN
PERMISSIBLE LEVELS AS OF THE ATTAINMENT DATE.  SEE 40 CFR SEC. 51.15
(C), 52.524(B) (1974). 

/4/ AT LEAST IN THE CASE OF FLORIDA, THIS APPROACH HAS APPARENTLY
BEEN MODIFIED BY SUBSEQUENT ADOPTION OF SCHEDULES WHICH REQUIRE
COMPLIANCE BY A NUMBER OF SPECIFIED SOURCES PRIOR TO JULY 1, 1975.  SEE
40 CFR SEC. 52.524(C) (1974. 

/5/ ALL OTHER STATES WITHIN THE FIFTH CIRCUIT, EXCEPT FLORIDA, ALSO
ADOPTED PLANS WITH LIMITATIONS WHICH WERE EFFECTIVE IMMEDIATELY OR, IN
THE CASE OF TEXAS, ONLY A FEW MONTHS THEREAFTER. 

/6/ GEORGIA CODE ANN. SEC. 88 - 912 (1971) READS AS FOLLOWS:  "
VARIANCES.--, 

" THE DEPARTMENT MAY GRANT SPECIFIC OR GENERAL CLASSES OF VARIANCES
FROM THE PARTICULAR REQUIREMENTS OF ANY RULE, REGULATION OR GENERAL
ORDER TO SUCH SPECIFIC PERSONS OR CLASS OF PERSONS OR SUCH SPECIFIC
SOURCE OR GENERAL CLASSES OF SOURCES OF AIR CONTAMINATNTS UPON SUCH
CONDITIONS AS IT MAY DEEM NECESSARY TO PROTECT THE PUBLIC HEALTH AND
WELFARE IF IT FINDS THAT STRICT COMPLIANCE WITH SUCH RULE, REGULATION
OR GENERAL ORDER IS INAPPROPRIATE BECAUSE OF CONDITIONS BEYOND THE
CONTROL OF THE PERSON OR CLASSES OF PERSONS GRANTED SUCH VARIANCES, OR
BECAUSE OF SPECIAL CIRCUMSTANCES WHICH WOULD RENDER STRICT COMPLIANCE
UNREASONABLE, UNDULY BURDENSOME, OR IMPRACTICAL DUE TO SPECIAL PHYSICAL
CONDITIONS OR CAUSES, OR BECAUSE STRICT COMPLIANCE WOULD RESULT IN
SUBSTANTIAL CURTAILMENT OR CLOSING DOWN OF ONE OR MORE BUSINESSES,
PLANTS OR OPERATIONS, OR BECAUSE NO ALTERNATIVE FACILITY OR METHOD OF
HANDLING IS YET AVAILABLE.  SUCH VARIANCES MAY BE LIMITED IN TIME.  IN
DETERMINING WHETHER OR NOT SUCH VARIANCES SHALL BE GRANTED, THE
DEPARTMENT SHALL GIVE CONSIDERATION TO THE PROTECTION OF THE PUBLIC
HEALTH, SAFETY AND GENERAL WELFARE OF THE PUBLIC, AND WEIGH THE
EQUITIES INVOLVED AND THE RELATIVE ADVANTAGES AND DISADVANTAGES TO THE
RESIDENT AND THE OCCUPATION OR ACTIVITY AFFECTED.  ANY PERSON OR
PERSONS SEEKING A VARIANCE SHALL DO SO BY FILING A PETITION THEREFOR
WITH THE DIRECTOR OF THE DEPARTMENT.  THE DIRECTOR SHALL PROMPTLY
INVESTIGATE SUCH PETITION AND MAKE A RECOMMENDATION AS TO THE
DISPOSITION THEREOF.  IF SUCH RECOMMENDATION IS AGAINST THE GRANTING OF
THE VARIANCE, A HEARING SHALL BE HELD THEREON WITHIN 15 DAYS AFTER
NOTICE OF THE PETITIONER.  IF THE RECOMMENDATION OF THE DIRECTOR IS FOR
THE GRANTING OF A VARIANCE, THE DEPARTMENT MAY DO SO WITHOUT A HEARING:
PROVIDED, HOWEVER, THAT UPON THE PETITION OF ANY PERSON AGGRIEVED BY
THE GRANTING OF A VARIANCE, A PUBLIC HEARING SHALL BE HELD THERON.  A
VARIANCE GRANTED MAY BE REVOKED OR MODIFIED BY THE DEPARTMENT AFTER A
PUBLIC HEARING WHICH SHALL BE SERVED UPON ALL PERSONS, KNOWN TO THE
DEPARTMENT, WHO WILL BE SUBJECTED TO GREATER RESTRICTIONS IF SUCH
VARIANCE IS REVOKED OR MODIFIED, OR ARE LIKELY TO BE AFFECTED OR WHO
HAVE FILED WITH THE DEPARTMENT A WRITTEN REQUEST FOR SUCH
NOTIFICATION." 

/7/ THE TEST OF SEC. 110(A)(3) APPEARS INFRA, AT 75. 

/8/ TITLE 40 CFR SEC. 51.32(F)(1973) READS AS FOLLOWS: 

" A STATE'S DETERMINATION TO DEFER THE APPLICABILITY OR ANY
PORTIONS) OF THE CONTROL STRATEGY WITH RESPECT TO SUCH SOURCES) WILL
NOT NECESSITATE A REQUEST FOR POSTPONEMENT UNDER THIS SECTION UNLESS
SUCH DEFERRAL WILL PREVENT ATTAINMENT OR MAINTENANCE OF A NATIONAL
STANDARD WITHIN THE TIME SPECIFIED IN SUCH PLAN; PROVIDED, HOWEVER,
THAT ANY SUCH DETERMINATION WILL BE DEEMED A REVISION OF AN APPLICABLE
PLAN UNDER SED.  51.6."     /9/ HEARINGS, ON IMPLEMENTATION OF THE
CLEAN AIR ACT AMENDMENTS OF 1970--PART I (TITLE I), BEFORE THE
SUBCOMMITTEE ON AIR AND WATER POLLUTION OF THE SENATE COMMITTEE ON
PUBLIC WORKS, 92D CONG., 2D SESS., 45 N. 51 (STATEMENT OF RICHARD E.
AYRES). 

/10/ THE TEXT OF SEC. 110(F) APPEARS INFRA, AT 75 - 76.     /11/
OTHER CIRCUITS WHICH HAVE ORDERED THE DISAPPROVAL OF IMPLEMENTATION
PLAN VARIANCE PROCEDURES HAVE LIKEWISE FAILED TO IDENTIFY THE OFFENDED
REQUIREMENT, EVEN THOUGH SEC. 110(A)(2) QUITE CLEARLY MANDATES APPROVAL
OF ANY PLAN WHICH SATISFIES ITS MINIMUM CONDITIONS.  SEE N. 2, SUPRA.
SINCE PETITIONER HAS NOT RAISED THE PINT IN THIS COURT, WE HAVE NO
OCCASION TO CONSIDER IT. 

/12/ SEE SEC. 116 OF THE CLEAN AIR AC, AS AMENDED, 84 STAT. 1689 AND
88 STAT. 259, 42 U.S.C.A. SEC 1857D-1 (SUPP. 1975). 

/13/ THE ATTAINMENT DATES FOR SEVERAL AIR QUALITY CONTROL REGIONS
WITHIN OTHER FIFTH CIRCUIT STATES ARE AS LATE AS MAY 31, 1977, BY
VIRTUE OF TWO-YEAR EXTENSIONS GRANTED PURSUANT TO SEC. 110(E).  SEE N.
20, INFRA. 

/14/ SECTION 110(F)(2) SPECIFIES THE PROCEDURAL REQUIREMENTS FOR
POSTPONEMENT.  IT READS AS FOLLOWS: 

"(2) (A) ANY DETERMINATION UNDER PARAGRAPH (1) SHALL (I) BE MADE ON
THE RECORD AFTER NOTICE TO INTERESTED PERSONS AND OPPORTUNITY FOR
HEARING, (II) BE BASED UPON A FAIR EVALUATION OF THE ENTIRE RECORD AT
SUCH HEARING, AND (III) INCLUDE A STATEMENT SETTING FORTH IN DETAIL THE
FINDINGS AND CONCLUSIONS UPON WHICH THE DETERMINATION IS BASED. 

"(B) ANY DETERMINATION MADE PURSUANT TO THIS PARAGRAPH SHALL BE
SUBJECT TO JUDICAL REVIEW BY THE UNITED STATES COURT OF APPEALS FOR THE
CIRCUIT WHICH INCLUDES SUCH STATE UPON THE FILING IN SUCH COURT WITHIN
30 DAYS FROM THE DATE OF SUCH DECISION OF A PETITION BY ANY INTERESTED
PERSON PRAYING THAT THE DECISION BE MODIFIED OR SET ASIDE IN WHOLE OR
IN PART.  A COPY OF THE PETITION SHALL FORTHWITH BE SENT BY REGISTERED
OR CERTIFIED MAIL TO THE ADMINISTRATOR AND THEREUPON THE ADMINISTRATOR
SHALL CERTIFY AND FILE IN SUCH COURT THE RECORD UPON WHICH THE FINAL
DECISION COMPLAINED OF WAS ISSUED, AS PROVIDED IN SECTION 2112 OF TITLE
28, UNITED STATES CODE.  UPON THE FILING OF SUCH PETITION THE COURT
SHALL HAVE JURISDICTION TO AFFIRM OR SET ASIDE THE DETERMINATION
COMPLAINED OF IN WHOLE OR IN PART.  THE FINDINGS OF THE ADMINISTRATOR
WITH RESPECT TO QUESTIONS OF FACT (INCLUDING EACH DETERMINATION MADE
UNDER SUBPARAGRAPHS (A), (B), (C), AND (D) OF PARAGRAPH (1)) SHALL BE
SUSTAINED IF BASED UPON A FAIR EVALUATION OF THE ENTIRE RECORD AT SUCH
HEARING. 

"(C) PROCEEDINGS BEFORE THE COURT UNDER THIS PARAGRAPH SHALL TAKE
PRECEDENCE OVER ALL THE OTHER CAUSES OF ACTION ON THE DOCKET AND SHALL
BE ASSIGNED FOR HEARING AND DECISION AT THE EARLIEST PRACTICABLE DATE
AND EXPEDITED IN EVERY WAY. 

"(D) SECTION 307(A) OF THIS TITLE (RELATING TO SUBPOENAS) SHALL BE
APPLICABLE TO ANY PROCEEDING UNDER THIS SUBSECTION." 

/15/ WE RECOGNIZE THAT ATTAINMENT OF THE STANDARDS IS REQUIRED AS
SOON AS "PRACTICABLE," AND THAT A PREATTAINMENT VARIANCE COULD NOT BE
GRANTED UNDER THE REVISION AUTHORITY IF IMMEDIATE COMPLIANCE BY A
PARTICULAR SOURCE WERE "PRACTICABLE" AND SUCH COMPLIANCE WOULD EXPEDITE
ATTAINMENT.  SEE INFRA, AT 96 - 97, AND N. 30. 

/16/ EXCEPTIONS ARE THE AGENCY'S AUTHORITY TO SET EMISSION
LIMITATIONS FOR NEW MOTOR VEHICLES, SEC. 202 ET SEQ. OF THE CLEAN AIR
ACT, AS AMENDED, 84 STAT. 1690 - 1698 AND 88 STAT. 258, 42 U.S.C.A.
SEC. 1857F-1 ET SEQ. (SUPP. 1975); TO SET EMISSION LIMITATIONS FOR
AIRCRAFT, SEC. 231 ET SEQ. OF THE CLEAN AIR ACT, AS ADDED, 84 STAT.
1703 - 1705, 42 U.S.C. SEC. 1857F-9 ET SEQ.; TO SET EMISSION
LIMITATIONS FOR CATEGORIES OF NEW STATIONARY SOURCES, SEC. 111 OF THE
CLEAN AIR ACT, AS ADDED, 84 STAT. 1683, AND AMENDED, 85 STAT. 464, 42
U.S.C. SEC. 1857C-6 (1970 ED. AND SUPP. I); AND TO REGULATE THE SALE OF
FUELS AND FUEL ADDITIVES, SEC. 211 OF THE CLEAN AIR ACT, AS AMENDED, 84
STAT. 1698 AND 85 STAT. 464, 42 U.S.C. SEC. 1857F-6C (1970 ED. AND
SUPP. I). 

/17/ NATURAL RESOURCES DEFENSE COUNCIL V. EPA, 507 F.2D 905, 911 -
913 (1974). 

/18/ SECTION 111(F) OF THE CLEAN AIR ACT, AS WOULD HAVE BEEN ADDED
BY S. 4358, 91ST CONG., 2D SESS., READ AS FOLLOWS: 

"(1) NO LATER THAN ONE YEAR BEFORE THE EXPIRATION OF THE PERIOD FOR
THE ATTAINMENT OF AMBIENT AIR OF THE QUALITY ESTABLISHED FOR ANY
NATIONAL AMBIENT AIR QUALITY STANDARD PROMULGATED PURSUANT TO SECTION
110 OF THIS ACT, THE GOVERNOR OF A STATE IN WHICH IS LOCATED ALL OR
PART OF AN AIR QUALITY CONTROL REGION DESIGNATED OR ESTABLISHED
PURSUANT TO THIS ACT MAY FILE A PETITION IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT IN WHICH ALL OR A PART OF SUCH AIR
QUALITY CONTROL REGION IS LOCATED AGAINST THE UNITED STATES FOR RELIEF
FROM THE EFFECT OF SUCH EXPIRATION (A) ON SUCH REGION OR PORTION
THEREOF, OR (B) ON A PERSON OR PERSONS IN SUCH AIR QUALITY CONTROL
REGION.  IN THE EVENT THAT SUCH REGION IS AN INTERSTATE AIR QUALITY
CONTROL REGION OR PORTION THEREOF, ANY GOVERNOR OF ANY STATE WHICH IS
WHOLLY OR PARTIALLY INCLUDED IN SUCH INTERSTATE REGION SHALL BE
PERMITTED TO INTERVENE FOR THE PRESENTATION OF EVIDENCE AND ARGUMENT ON
THE QUESTION OF SUCH RELIEF. 

"(2) ANY ACTION BROUGHT PURSUANT TO THIS SUBSECTION SHALL BE HEARD
AND DETERMINED BY A COURT OF THREE JUDGES IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 2284 OF TITLE 28 OF THE U.S.C. AND APPEAL SHALL
BE TO THE SUPREME COURT.  PROCEEDINGS BEFORE THE THREE JUDGE COURT, AS
AUTHORIZED BY THIS SUBSECTION SHALL TAKE PRECEDENCE ON THE DOCKET OVER
ALL OTHER CAUSES OF ACTION AND SHALL BE ASSIGNED FOR HEARING AND
DECISION AT THE EARLIEST PRACTICABLE DATE AND EXPEDITED IN EVERY WAY. 

"(3)(A) IN ANY SUCH PROCEEDING THE SECRETARY SHALL INTERVENE FOR THE
PURPOSE OF PRESENTING EVIDENCE AND ARGUMENT ON THE QUESTION OF WHETHER
RELIEF SHOULD BE GRANTED. 

"(B) THE COURT, IN ITS DISCRETION, MAY PERMIT ANY INTERESTED PERSON
RESIDING IN ANY AFFECTED STATE TO INTERVENE FOR THE PRESENTATION OF
EVIDENCE AND ARGUMENT ON THE QUESTION OR RELIEF. 

"(4) THE COURT, IN VIEW OF THE PARAMOUNT INTEREST OF THE UNITED
STATES IN ACHIEVING AMBIENT AIR QUALITY NECESSARY TO PROTECT THE HEALTH
OF PERSONS SHALL GRANT RELIEF ONLY IF IT DETERMINES SUCH RELIEF IS
ESSENTIAL TO THE PUBLIC INTEREST AND THE GENERAL WELFARE OF THE PERSONS
IN SUCH REGION, AFTER FINDING--, 

"(A) THAT SUBSTANTIAL EFFORTS HAVE BEEN MADE TO PROTECT THE HEALTH
OF PERSONS IN SUCH REGION; AND 

"(B) THAT MEANS TO CONTROL EMISSIONS CAUSING OR CONTRIBUTING TO SUCH
FAILURE ARE NOT AVAILABLE OR HAVE NOT BEEN AVAILABLE FOR A SUFFICIENT
PERIOD TO ACHIEVE COMPLIANCE PRIOR TO THE EXPIRATION OF THE PERIOD TO
ATTAIN AN APPLICABLE STANDARD; OR 

"(C) THAT THE FAILURE TO ACHIEVE SUCH AMBIENT AIR QUALITY STANDARD
IS CAUSED BY EMISSIONS FROM A FEDERAL FACILITY FOR WHICH THE PRESIDENT
HAS GRANTED AN EXEMPTION PURSUANT TO SECTION 118 OF THIS ACT. 

"(5) THE COURT, IN GRANTING SUCH RELIEF SHALL NOT EXTEND THE PERIOD
ESTABLISHED BY THIS ACT FOR MORE THAN ONE YEAR AND MAY GRANT RENEWALS
FOR ADDITIONAL ONE YEAR PERIODS ONLY AFTER THE FILING OF A NEW PETITION
WITH THE COURT. 

"(6) THE SECRETARY, IN CONSULTATION WITH ANY AFFECTED STATE OR
STATES, SHALL TAKE SUCH ACTION AS MAY BE NECESSARY TO MODIFY ANY
IMPLEMENTATION PLAN OR FORMULATE ANY NEW IMPLEMENTATION PLAN FOR THE
PERIOD OF SUCH EXTENSION. 

"(7) NO EXTENSION GRANTED PURSUANT TO THIS SECTION SHALL EFFECT
COMPLIANCE WITH ANY EMISSION REQUIREMENT, TIMETABLE, SCHEDULE OF
COMPLIANCE, OR OTHER ELEMENT OF ANY IMPLEMENTATION PLAN UNLESS SUCH
REQUIREMENT, TIMETABLE, SCHEDULE OF COMPLIANCE, OR OTHER ELEMENT OF
SUCH PLAN IS THE SUBJECT OF THE SPECIFIC ORDER EXTENDING THE TIME FOR
COMPLIANCE WITH SUCH NATIONAL AMBIENT AIR QUALITY STANDARD." 

/19/ THIS FACT, AS WELL AS THE "SAFETY VALVE" NATURE OF THE SENATE'S
PREDECESSOR TO THE POSTPONEMENT PROVISION, IS ALSO APPARENT FROM THE
SENATE REPORT: 

" FINALLY, THE COMMITTEE WOULD RECOGNIZE THAT COMPLIANCE WITH THE
NATIONAL AMBIENT AIR QUALITY STANDARDS DEADLINE MAY NOT BE POSSIBLE. 
IF A GOVERNOR JUDGES THAT ANY REGION OR REGIONS OR PORTIONS THEREOF
WITHIN HIS STATE WILL NOT MEET THE NATIONAL AMBIENT AIR QUALITY
STANDARD WITHIN THE TIME PROVIDED, (SECTION 111(F) OF) THE BILL WOULD
AUTHORIZE HIM--ONE YEAR BEFORE THE DEADLINE--TO FILE A PETITION AGAINST
THE UNITED STATES IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT WHERE SUCH REGION OR PORTION THEREOF IS LOCATED FOR RELIEF
FROM THE EFFECT OF SUCH EXPIRATION."  S. REP. NO. 91 - 1196, PP. 14 -
15 (1970). 

/20/ SECTION 110(E), 42 U.S.C. SEC. 1857C-5(E), READS AS FOLLOWS: 

"(1) UPON APPLICATION OF A GOVERNOR OF A STATE AT THE TIME OF
SUBMISSION OF ANY PLAN IMPLEMENTING A NATIONAL AMBIENT AIR QUALITY
PRIMARY STANDARD, THE ADMINISTRATOR MAY (SUBJECT TO PARAGRAPH (2))
EXTEND THE THREE-YEAR PERIOD REFERRED TO IN SUBSECTION (A)(2) (A)(I)
FOR NOT MORE THAN TWO YEARS FOR AN AIR QUALITY CONTROL REGION IF AFTER
REVIEW OF SUCH PLAN THE ADMINISTRATOR DETERMINES THAT--, 

"(A) ONE OR MORE EMISSION SOURCES (OR CLASSES OF MOVING SOURCES) ARE
UNABLE TO COMPLY WITH THE REQUIREMENTS OF SUCH PLAN WHICH IMPLEMENT
SUCH PRIMARY STANDARD BECAUSE THE NECESSARY TECHNOLOGY OR OTHER
ALTERNATIVES ARE NOT AVAILABLE OR WILL NOT BE AVAILABLE SOON ENOUGH TO
PERMIT COMPLIANCE WITHIN SUCH THREE-YEAR PERIOD, AND 

"(B) THE STATE HAS CONSIDERED AND APPLIEDC AS A PART OF ITS PLAN
REASONABLY AVAILABLE ALTERNATIVE MEANS OF ATTAINING SUCH PRIMARY
STANDARD AND HAS JUSTIFIABLY CONCLUDED THAT ATTAIMENT OF SUCH PRIMARY
STANDARD WITHIN THE THREE YEARS CANNOT BE ACHIEVED. 

"(2) THE ADMINISTRATOR MAY GRANT AN EXTENSION UNDER PARAGRAPH (1)
ONLY IF HE DETERMINES THAT THE STATE PLAN PROVIDES FOR--, 

"(A) APPLICATION OF THE REQUIREMENTS OF THE PLAN WHICH IMPLEMENT
SUCH PRIMARY STANDARD TO ALL EMISSION SOURCES IN SUCH REGION OTHER THAN
THE SOURCES (OR CLASSES) DESCRIBED IN PARAGRAPH (1)(A) WITHIN THE THREE
YEAR PERIOD, AND 

"(B) SUCH INTERIM MEASURES OF CONTROL OF THE SOURCES (OR CLASSES)
DESCRIBED IN PARAGRAPH (1)(A) AS THE ADMINISTRATOR DETERMINES TO BE
REASONABLE UNDER THE CIRCUMSTANCES." 

/21/ THE LANGUAGE OF SEC. 110(F) WOULD ALSO SEEM TO SUPPORT ANY
NUMBER OF SUCCESSIVE ONE-YEAR POSTPONEMENTS, SO LONG AS APPLICATION IS
TIMELY.  THERE IS POTENTIALLY SOME DISPUTE AS TO THIS, HOWEVER, BECAUSE
THE CONFERENCE COMMITTEE DELETED, WITHOUT COMMENT, LANGUAGE IN THE
SENATE PREDECESSOR TO SEC. 110(F) THAT EXPLICITLY PERMITTED SUCCESSIVE
POSTPONEMENTS.  SEE PROPOSED SEC. 111(F)(5) OF THE CLEAN AIR ACT, AS
WOULD HAVE BEEN ADDED BY S. 4358, 91ST CONG., 2D SESS., N. 18, SUPRA.
THIS QUESTION IS NOT PRESENTED BY THIS CASE, AND WE DO NOT DECIDE IT.
WE SIMPLY NOTE THE POSSIBILITY OF SUCCESSIVE POSTPONEMENTS AS AN
ADDITIONAL ELEMENT WHICH WOULD REASONABLY EXPLAIN THE IMPOSITION OF
HARSHER STANDARDS IN SEC. 110(F) THAN IN SEC. 110(E). 

/22/ WE NOTE HOWEVER THAT THERE MAY BE SUBSTANTIAL DIFFICULTIES IN
DETERMINING WHETHER A PROPOSED MODIFICATION IS OF GENERAL OR SPECIFIC
APPLICATION.  REQUIREMENTS WRITTEN IN GENERAL TERMS MAY IN FACT BE OF
VERY SPECIFIC IMPACT, AS A RESULT OF THE LIMITED NUMBER OF SIMILAR
SOURCES, OR EVEN OF CONSCIOUS EFFORTS TO EVADE RESTRICTIONS ON
"SPECIFIC" CHANGES.  FOR EXAMPLE, THE REGULATION AT ISSUE IN GETTY OIL
CO. V. RUCHELSHAUS, 467 F.2D 349 (CA3 1972), SPOKE OF ALL FUEL-BURNING
EQUIPMENT HAVING A MAXIMUM RATE OF HEAT INPUT EQUAL TO OR GREATER THAN
500 MILLION BTU PER HOUR, AND LOCATED IN NEW CASTLE COUNTY, DEL., SOUTH
OF U.S. ROUTE 40.  THERE WAS ONLY ONE SUCH INSTALLATION. 

/23/ THE FLORIDA PLAN, FOR EXAMPLE, PRESENTLY CONTAINS COMPLIANCE
SCHEDULES WHICH SPECIFY NOT MERELY PARTICULAR BUSINESS OPERATIONS, BUT
ALSO THE PRINCIPAL EMISSION SOURCES WITHIN PARTICULAR OPERATIONS.  SEE
40 CFR SEC. 52.524(C)(1974). 

/24/ BRIEF FOR RESPONDENTS 48 - 49.  RESPONDENTS DO NOT, HOWEVER,
SUGGEST ANY STATUTORY BASIS FOR INCORPORATING COMLIANCE SCHEDULES INTO
A PLAN ONCE IT HAS BEEN APPROVED.  WE KNOW OF NONE SAVE THE REVISION
AUTHORITY WHICH RESPONDENTS WOULD HAVE US DECLARE UNAVAILABLE FOR
MODIFICATIONS OF A SPECIFIC NATURE. 

/25/ MUCH OF THE CONFUSION WHICH HAS AFFLICTED THE FIFTH CIRCUIT AND
THE OTHER COURTS OF APPEALS PROBABLY HAS BEEN GENERATED BY THE STATES'
PROCTICE OF REFERRING TO EXCEPTIONS FROM CATEGORICAL LIMITATIONS AS
"VARIANCES" RATHER THAN AS "REVISED COMPLIANCE SCHEDULES," AND ALSO BY
THE FACT THAT IN PRACTICE A "VARIANCE"  TYPICALLY HAS THE EFFECT OF
DEFERRING THE DATE ON WHICH COMPLIANCE WITH CATEGORICAL LIMITATIONS IS
REQUIRED.  OUR CONCERN, HOWEVER, IS NOT WITH THE NOMENCLATURE ASSIGNED
TO EXCEPTIONS, BUR RATHER WITH WHETHER THEY ARE OF A NATURE THAT MAY BE
AUTHORIZED AS SEC. 110(A)(3) REVISIONS.  THAT AN EXCEPTION WHICH DOES
NOT JEOPARDIZE NATIONAL STANDARDS MAY IN EFFECT BE A DEFERRAL DOES NOT
CHANGE THE FACTS (1) THAT IT REVISES A PLAN FROM ONE WHICH REQUIRES A
SOURCE TO COMPLY BY, SAY, JULY 1972, TO ONE WHICH REQUIRES ITS
COMPLIANCE AS OF, SAY, MAY 1975, AND (2) THAT THE PLAN AS SO REVISED
STILL POSSESSES ALL OF THE CHARACTERISTICS WHICH IT MUST UNDER SEC.
110(A)(2).  AN EXCEPTION WHICH DOES JEOPARDIZE NATIONAL STANDARDS, ON
THE OTHER HAND, CANNOT BE A REVISION BECAUSE IT WOULD DEPRIVE THE
REVISED PLAN OF A CHARACTERISTIC WITHOUT WHICH IT CANNOT UNDER THE ACT
BE AN APPLICABLE PLAN.  SEE SEC. 110(D) WHICH DEFINES "APPLICABLE
IMPLEMENTATION PLAN" AS THE "IMPLEMENTATION PLAN, OR MOST RECENT
REVISION THEREIF, WHICH HAS BEEN APPROVED UNDER (SEC. 110 (A)(2))
...."  SUCH AN EXCEPTION MUST BE OBTAINED, IF AT ALL, AS A POSTPONEMENT
OF THE REQUIREMENTS OF THE APPLICABLE PLAN.     /26/ THE FIRST
CIRCUIT'S DECISION WAS STRONGLY CRITICIZED IN COMMENT, VARIANCE
PORCEDURES UNDER THE CLEAN AIR ACT:  THE NEED FOR FLEXIBILITY, 15 WM. &
MARY L. REV. 324 (1973).  THE COMMENT WAS ESPECIALLY CONCERNED WITH THE
CONCLUSION THAT SEC. 110(F) WAS THE EXCLUSIVE POSTATTAINMENT VARIANCE
MECHANISM, FOCUEING ON THIS CONCLUSION'S LACK OF SUPPORT IN THE STATUTE
AND LEGISLATIVE HISTORY, ON ITS INCONSISTENCY WITH OTHER PROVISIONS OF
THE STATUTE, AND ON ITS UNTOWARD RESULTS.  A SECOND COMMENTATOR,
WRITING PRIOR TO ANY OF THE COURT OF APPEALS DECISIONS, REACHED
CONCLUSIONS SIMILAR TO THOSE WE TODAY EXPRESS.  LUNEBURG, FEDERAL-STATE
INTERACTION UNDER THE CLEAN AIR AMENDMENTS OF 1970, 14 B.C. IND. & COM.
L. REV. 637 (1973).  (AT THE TIME HE WROTE THIS ARTICLE, MR. LUNEBURG
WAS AN ATTORNEY IN THE ENFORCEMENT DIVISION, ENVIRONMENTAL PROTECTION
AGENCY, REGION I.) 

/27/ EMISSION LIMITATIONS CONTAINED IN AN IMPLEMENTATION PLAN MAY BE
ENFORCED IN SEVERAL WAYS.  ASIDE FOR WHATEVER STATE PROCUDURES ARE
AVAILABLE UNDER THE PLAN, SEC. 113 OF THE CLEAN AIR ACT, AS ADDED, 84
STAT. 1986, AND AMENDED, 88 STAT. 259, 42 U.S.C.A. SEC. 1857C-8 (SUPP.
1975), IMPOSES A DUTY OF ENFORCEMENT ON THE AGENCY.  THE AGENCY MAY
ISSUE COMPLIANCE ORDERS (THE VIOLATION OF WHICH CARRIES SEVERE MONETARY
PENALTIES), OR IT MAY BRING CIVIL ACTIONS FOR INJUNCTIVE RELIEF.  IN
ADDITION, SEC. 304 OF THE CLEAN AIR ACT, AS ADDED, 84 STAT. 1706, 42
U.S.C. SEC. 1857H-2, PROVIDES FOR CITIZEN SUITS AGAINST ANY PERSON
ALLEGED TO BE IN VIOLATION OF AN EMISSION LIMITATION, AND AGAINST THE
ADMINISTRATOR WHERE HE IS ALLEGED TO HAVE FAILED TO PERFORM A NON
DISCRETIONARY ACT.  PLAINTIFFS IN SUCH ACTIONS MAY BE AWARDED
ATTORNEYS' FEE.  SEC. 304(D). 

/28/ WE RECOGNIZE THAT NUMEROUS APPLICATIONS FOR CHANGES OF A
SPECIFIC NATURE HAVE A POTENTIAL FOR CREATING A DIFFERENT KIND OF
PROBLEM FROM THAT POSED BY THE FORMULATION OF GENERAL REGULATIONS. 
SUCH A PROBLEM WOULD ARISE WHEN THE GRANT OF A VARIANCE TO ONE SOURCE
WOULD NOT AFFECT NATIONAL STANDARDS, BUT THE SIMULTANEOUS OR SUBSEQUENT
GRAND OF SIMILAR VARIANCES TO SIMILAR SOURCES COULD RESULT IN THE
PLAN'S FAILURE TO INSURE THE ATTAINMENT AND MAINTENANCE OF THE
STANDARDS.  AS WE HAVE NOTED IN THE TEXT, HOWEVER, THE AGENCY CHARGED
WITH THE ADMINISTRATION OF THE ACT, AND MADE ULTIMATELY RESPONSIBLE FOR
THE ATTAINMENT AND MAINTENANCE OF THE NATIONAL STANDARDS, DOES NOT VIEW
THIS PROBLEM AS ANYWHERE NEAR INSURMOUNTABLE.  VARIANCES UNDER SEC.
110(A)(3) CANNOT BE GRANTED UNTIL FIRST THE STATE, AND THEN THE AGENCY,
HAVE DETERMINED THAT THEY WILL NOT JEOPARDIZE THE STANDARDS.  WE CANNOT
AND DO NOT ATTEMPT TO FORESEE, AT THIS STAGE IN THE ADMINISTRATION OF
THE STATUTE, ALL OF THE QUESTIONS, TO SAY NOTHING OF THE ANSWERS, THAT
MAY ARISE IN THE ALLOCATION OF A LIMITED NUMBER OF AVAILABLE
VARIANCES.  TEH FACT THAT THE INTERPRETATION PLACED ON THE SECTION BY
THE AGENCY MAY ON OCCASION REQUIRE ADMINISTRATIVE FLEXIBILITY AND
INGENUITY TO A GREATER DEGREE THAN WOULD A MORE RIGID ALTERNATIVE IS
NOT, OF COURSE, A REASON FOR REJECTING THE AGENCY'S OTHERWISE
REASOEABLE CONSTRUCTION. 

/29/ COMPARE THE LANGUAGE OF SEC. 110(F), SUPRA, AT 75 - 76, WITH
THAT OF THE SENATE'S PROPOSED SEC. 111(F), N. 18, SUPRA.  IN LIGHT OF
OUR TEXTURAL COMMENTS CONCERNING RESPONDENTS' INTERPRETATION OF THE
CONFERENCE COMMITTEE'S CHANGES, WE THINK THAT A CONSIDERABLY SIMPLER
AND MORE SATISFACTORY EXPLANATION IS AVAILABLE.  THE MOST SUBSTANTIAL
DIFFERENCE BETWEEN THE TWO, OTHER THAN THE FORUM FOR DECISION, IS THAT
SEC. 110(F) IS TRIGGERED BY AN APPLICATION FILED PRIOR TO THE DATE OF
COMPLIANCE WITH ANY REQUIREMENT OF A PLAN, WHEREAS SEC. 111(F) IS
TRIGGERED BY A FILING AT LEAST A YEAR PRIOR TO THE DEADLINE FOR
ATTAINMENT.  THE CONFERENCE COMMITTEE'S CHANGE CAN BE QUITE REASONABLY
VIEWED AS A RECOGNITION THAT THE EXTREME CIRCUMSTANCES JUSTIFYING
BREACH OF THE NATIONAL STANDARDS COULD BE PRESENT WITH RESPECT TO A
REQUIREMENT TAKING EFFECT EITHER BEFORE OR AFTER THE ATTAINMENT DATE. 
THAT MIGHT OCCUR, FOR EXAMPLE, IF TECHNOLOGICAL DIFFICULTIES SHOULD
PREVENT REQUIRED PREATTAINMENT CONSTRUCTION OF NECESSARY ABATEMENT
EQUIPMENT, OR IF INCREASING POPULATION DENSITY SHOULD EVENTUALLY CAUSE
MORE STRINGENT LIMITATIONS TO BE NECESSARY TO MAINTAIN THE NATIONAL
STANDARDS.  ONCE IT IS DETERMINED THAT POSTPONEMENTS SHOULD BE
AVAILABLE WITH REGARD TO ANY REQUIREMENT OF A PLAN, AND NOT MERELY TO
THOSE TIED DIRECTLY TO THE ATTAINMENT DATE, THEN THE CHANGE FROM
"REGION" AND "PERSON OR PERSONS" TO "ANY STATIONARY SOURCE OR CLASS OF
MOVING SOURCES" FOLLOWS RATHER NATURALLY.  THE LATTER PHRASE IS FAR
MORE CONVENIENT FOR USE IN CONJUNCTION WITH "ANY REQUIREMENT OF AN
APPLICABLE IMPLEMENTATION PLAN," YET IS NOT SIGNIFICANTLY MORE OR LESS
INCLUSIVE THAN THE FORMER (WHILE THE FINAL VERSION REQUIRES SOURCE-BY
SOURCE POSTPONEMENTS, AND DOES NOT PROVIDE FOR RELIEF WITH RESPECT TO
AN ENTIRE REGION, THAT REQUIREMENT WAS IN ANY EVENT IMPLICIT IN
PROPOSED SEC. 111(F)(4)'S CONDITIONS FOR GRANTING RELIEF; AND WHILE
"CLASS OF MOVING SOURCES" IS LESS INCLUSIVE THAN "PERSON OR PERSONS,"
THE RESTRICTION IS NOT ONLY SENSIBLE IN LIGHT OF THE SMALL EMISSIONS
FROM ANY SINGLE MOVING SOURCE, BUT IT ALSO HAS NO DISCERNIBLE RELEVANCE
TO OUR INQUIRY). 

/30/ WHETHER THE GEORGIA VARIANCE PROVISION MEETS THE PRACTICABILITY
STANDARD WITH REGARD TO PREATTAINMEHT VARIANCES IS A DIFFERENT ISSUE. 
IT AUTHORIZES VARIANCES ON THE BASIS OF CONDITIONS BEYOND THE CONTROL
OF THE PERSONS INVOLVED, OT THE BASIS OF CIRCUMSTANCES WHICH WOULD
RENDER STRICT COMPLIANCE "UNREASONABLE, UNDULY BURDENSOME, OF
IMPRACTICAL," ON THE BASIS OF FINDINGS THAT STRICT COMPLIANCE WOULD
RESULT IN SUBSTANTIAL CURTAILMENT OR CLOSING DOWN OF BUSINESS
OPERATIONS, AND BECAUSE ALTERNATIVES ARE NOT YET AVAILABLE.  SEE N. 6,
SUPRA.  RESPONDENTS, HOWEVER, DID NOT ATTACK THE GEORGIA VARIANCE
PROCEDURE ON THIS MORE LIMITED GROUND, AND WE NEED NOT CONSIDER THE
ISSUE. 

/31/ SEE N. 2, SUPRA. 

/32/ RESPONDENTS ALSO CLAIM THAT THEIR VIEW OF REVISIONS IS
SUPPORTED BY THE CONTEXT IN WHICH THE TERM IS USED IN OTHER PARTS OF
THE AMENDED ACT.  WE DISAGREE.  TWO INSTANCES, SEC. 110(A)(2)(A)(I) AND
110 (C)(1)(C), ARE REFERENCES TO THE REVISION MECHANISM REQUIRED BY
SEC. 110(A)(2)(H), BUT DO NOT SUGGEST THAT THERE MAY NOT ALSO BE OTHER
TYPES OF REVISIONS.  THE OTHER TWO, SEC. 110(A)(1) AND 110(D), ARE
ENTIRELY NEUTRAL BOTH IN TERS OF WHETHER REVISIONS ARE SPECIFIC OR
GENERAL AND IN TERMS OF WHETHER THEY MAY OCCUR INDEPENDENTLY OF SEC.
110(A)(2)(H). 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

GERALD P. NORTON ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL JOHNSON,
AND EDMUND B. CLARK. 

RICHARD E. AYRES ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS STEPHEN P. DUGGAN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JOHN C.
DANFORTH, ATTORNEY GENERAL, AND WALTER W. NOWOTNY, JR., AND DAN
SUMMERS, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF MISSOURI; BY
JOHN L. HILL, ATTORNEY GENERAL, LARRY F. YORK, FIRST ASSISTANT ATTORNEY
GENERAL, AND PHILIP K, MAXWELL AND DOUGLAS G. CAROOM, ASSISTANT
ATTORNEYS GENERAL, FOR THE STATE OF TEXAS; BY MAX N. EDWARDS AND JOHN
HARDIN YOUNG FOR THE AMERICAN IRON AND STEEL INSTITUTE; BY CAMERON F.
MAC RAE, HARRY H. VOIGT, AND HENRY V. NICKEL FOR EDISON ELECTRIC
INSTITUTE; AND BY R. GORDON GOOCH AND LARRY B. FELDCAMP FOR EXXON CORP.
ET AL.
..END :











VELLA V. FORD MOTOR CO., 421 U.S. 1 


       VELLA V. FORD MOTOR CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 1994.  ARGUED FEBRUARY 18 - 19, 1975--, DECIDED

           APRIL 15, 1975; 495 F.2D 1374, REVERSED AND REMANDED. 


    A SHIPOWNER'S DUTY TO FURNISH AN INJURED SEAMAN MAINTENANCE AND

  CURE CONTINUES FROM THE DATE THE SEAMAN LEAVES THE SHIP TO THE

  DATE WHEN A MEDICAL DIAGNOSIS IS MADE THAT HIS INJURY WAS

  PERMANENT INMEDIATELY AFTER HIS ACCIDENT AND THEREFORE

  INCURABLE.  PP 3 - 6. 

     BRENNAN, J., DELIVERED THE POINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE LIMITED TO THE QUESTION WHETHER A
SHIPOWNER'S DUTY TO FURNISH AN INJURED SEAMAN MAINTENANCE AND CURE
CONTINUES FROM THE DATE THE SEAMAN LEAVES THE SHIP TO THE DATE WHEN A
MEDICAL DIAGNOSIS IS MADE THAT THE SEAMAM'S INJURY WAS PERMANENT
IMMEDIATELY AFTER HIS ACCIDENT AND THEREFORE INCURABLE.  /1/  419 U.S.
984 (1974). 

PETITIONER WAS A SEAMAN ABOARD RESPONDENT'S GREAT LAKES VESSEL, S.S.
ROBERT S. MC NAMARA.  HE WAS DISCHARGED AND LEFT THE SHIP ON JUNE 29,
1968.  THEREAFTER HE FILED THIS SUIT IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION, BASED ON A CLAIM THAT
ON APRIL 4, 1968, WHILE REPLACING A LOWER ENGINEROOM DECK PLATE, HE
SLIPPED AND FELL ON THE OILY FLOOR PLATE CAUSING HIS HEAD TO SUFFER A
SEVERE BLOW WHEN IT STRUCK AN ELECTRICAL BOX.  THE COMPLAINT INCLUDED A
COUNT, AMONG OTHERS, /2/ FOR MAINTENANCE AND CURE.  THE MEDICAL
TESTIMONY AT THE TRIAL WAS THAT PETITONER SUFFERED FROM A VESTIBULAR
DISORDER DEFINED AS DAMAGE TO THE BALANCING MECHANISM OF THE INNER
EAR.  THE TESTIMONY OF RESPONDENT'S MEDICAL WITNESS, DR. HEIL, AN
OTOLARYNGOLOGISE, SUPPLIED THE ONLY MEDICAL DIAGNOSIS AS TO THE TIME
WHEN THE DISORDER BECAME PERMANENT AND NOT SUSCIPTIBLE TO CURATIVE
TREATMENT.  DR. HEIL TESTIFIED ON APRIL 27, 1972, THAT HE HAD RECENTLY
EXAMINED PETITIONER.  HE CONCEDED THAT A SEVERE BLOW TO THE HEAD, SUCH
AS ALLEGED BY PETITIONER, COULD HAVE CAUSED THE DISORDER.  HE SAID,
HOWEVER, THAT THE DISORDER IS NOT A CONDITION THAT CAN BE CURED BY
TREATMENT.  /3/ THE JURY AWARDED PETITIONER MAINTENANCE AND CURE IN THE
AMOUNT OF $5,848.  RESPONDENT MOVED FOR A JUDGMENT NOTWITHSTANDING THE
VERDICT ON THE GROUND THAT THE AWARD WAS NOT WITHIN THE PERMISSIBLE
SCOPE OF MAINTENANCE AND CURE.  THE DISTRICT COURT DENIED THE MOTION
AND STATED:  " WHILE IT IS TRUE THAT MAINTENANCE AND CURE IS NOT
AVAILABLE FOR A SICKNESS DECLARED TO BE PERMANENT."  APP. 20A.  THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED IN AN UNPUBLISHED
OPINION, SEE 495 F.2D 1374 (1974).  THE COURT OF APPEALS HELD THAT
"ONCE THE SEAMAN REACHES 'MAXIMUM MEDICAL RECOVERY.'  THE SHIPOWNER'S
OBLIGATION TO PROVIDE MAINTENANCE AND CURE CEASES,"  APP. 28A, AND
SINCE "(THE RECORD IN THIS CASE DOES NOT PERMIT AN INFERENCE OTHER THAN
THAT (PETITIONER'S) CONDITION WAS PERMANENT IMMEDIATELY AFTER THE
ACCIDENT," ID., AT 29A, THE DISTRICT COURT'S HOLDING IMPERMISSIBLY
EXTENDED THE SHIPOWNER'S OBLIGATION. 

WE DISAGREE WITH THE COURT OF APPEALS AND THEREFORE REVERSE.  THE
SHIPOWNER'S ACCIENT DUTY TO PROVIDE MAINTENANCE AND CURE FOR THE SEAMAN
WHO BECOMES ILL OR IS INJURED WHILE IN THE SERVICE OF THE SHIP DERIVES
FROM THE "UNIQUE HAZARDS (WHICH) ATTEND THE WORK OF SEAMEN," AND
FOSTERS THE "COMBINED OBJECT OF ENCOURAGING MARINE COMMERCE AND
ASSURING THE WELL-BEING OF SEAMEN."  AGUILAR V. STANDARD OIL CO., 318
U.S. 724, 727 (1943).  TO FURTHER THAT "COMBINED OBJECT" WE HAVE HELD
THAT THE DUTY ARISES IRRESPECTIVE OF THE ABSENCE OF SHIPOWNER
NEGLIGENCE AND INDEED IRRESPTCTIVE OF WHETHER THE ILLNESS OR INJURY IS
SUFFERED IN THE COURSE OF THE SEAMAN'S EMPLOYMENT.  CALMAR S.S. CORP.
V. TAYLOR, 303 U.S. 525, 527 (1938).  AND, "(SO BROAD IS THE
SHIPOWNER'S OBLIGATION, . . . NEGLIGENCE OR ACTS SHORT OF CULPABLE
MISCONDUCT ON THE SEAMAN'S PART WILL NOT RELIEVE (THE SHIPOWNER) OF THE
RESPONSIBILITY."  AGUILAR V. STANDARD OIL CO., SUPRA, AT 730 - 731. 
THUS, THE BREADTH AND INCLUSIVENESS OF THE SHIPOWNER'S DUTY ASSURE ITS
EASY AND READY ADMINISTERATION FOR "(IT HAS FEW EXCEPTIONS OR
CONDITIONS TO STIR CONTENTIONS, CAUSE DELAYS, AND INVITE LITIGATIONS." 
FARRELL V. UNITED STATES, 336 U.S. 511, 516 (1949). 

DENIAL OF MAINTENANCE AND CURE WHEN THE SEAMAN'S INJURY, THOUGH IN
FACT PERMANENT IMMEDIATELY AFTER THE ACCIDENT, IS NOT MEDICALLY
DIAGNOSED AS PERMANENT UNTIL LONG AFTER ITS OCCURRENCE WOULD OBVIOUSLY
DISSERVE AND FRUSTRATE THE "COMBINED OBJECT OF ENCOURAGING MARINE
COMMERCE AND ASSURING THE WELL-BEING OF SEAMEN."  A SHIPOWNER MIGHT
WITHHOLD VITALLY NECESSARY MAINTENANCE AND CURE ON THE BELIEF, HOWEVER
WELL OR POORLY FOUNDED, THAT THE SEAMAN'S INJURY IS PERMANENT AND
INCURABLE.  OR THE SEAMAN, IF PAID MAINTENANCE AND CURE BY THE
SHIPOWNER, MIGHT BE REQUIRED TO REIMBURSE THE PAYMENTS, IF IT IS LATER
DETERMINED THAT THE INJURY WAS PERMANENT IMMEDIATELY AFTER THE
ACCIDENT.  THUS UNCERTAINTY WOULD DISPLACE THE ESSENTIAL CERTAINTY OF
PROTECTION AGAINST THE RAVAGES OF ILLNESS AND INJURY THAT ENCOURAGES
SEAMEN TO UNDERTAKE THEIR HAZARDOUS CALLING.  MOREOVER, EASY AND READY
ADMINISTRATION OF THE SHIPOWNER'S DUTY WOULD SERIOUSLY SUFFER FROM THE
INTRODUCTION OF COMPLEXITIES AND UNCERTAINTY THAT COULD "STIR
CONTENTIONS, CAUSE DELAYS, AND INVITE LITIGATIONS." 

THE SHIPOWNERS' LIABILITY CONVENTION, MADE EFFECTIVE FOR THE UNITED
STATES ON OCTOBER 29, 1939, FARRELL V. UNITED STATES, SUPRA, AT 517,
BUTTRESSES OUR CONCLUSION THAT THE DISTRICT COURT CORRECTLY HELD THAT
"MAINTENANCE AND CURE CONTINUE UNTIL SUCH TIME AS THE INCAPACITY IS
DECLARED TO BE PERMANENT."  /4/ THAT HOLDING TRACKS THE WORKING OF ART.
4, 1, OF THE CONVENTION WHICH PROVIDES:  " THE SHIPOWNER SHALL BE
LIABLE TO DEFRAY THE EXPENSE OF MEDICAL CARE AND MAINTENANCE UNTIL THE
SICK OR INJURED PERSON HAS BEEN CURED, OR UNTIL THE SICKNESS OR
INCAPACITY HAS BEEN DECLARED OF A PERMANENT CHARACTER."  54 STAT.
1696.  (EMPHASIS SUPPLIED.)  THE AIM OF THE CONVENTION "WAS NOT TO
CHANGE MATERIALLY AMERICAN STANDARDS BUT TO EQUALIZE OPERATING COSTS BY
RAISING THE STANDARDS OF MEMBER NATIONS TO THE AMERICAN LEVEL."  WARREN
V. UNITED STATES, 340 U.S. 523, 527 (1951).  THUS ART. 4, 1, IS
DECLARATORY OF A LONGSTANDING TRADITION RESPECTING THE SCOPE OF THE
SHIPOWNER'S DUTY TO FURNISH INJURED SEAMEN MAINTENANCE AND CURE, /5/
FARRELL V. UNITED STATES, SUPRA, AT 518, AND THEREFORE THE DISTRICT
COURT'S INTERPRETATION WAS CORRECT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

                                  SO ORDERED. 

/1/ THIS QUESTION IS SUBSUMED IN QUESTION I PRESENTED IN THE
PETITION FOR WRIT OF CERTIORARI:  " IS A DISABLED SEAMAN WHO CONTRACTED
BY TRAUMA A PERMANENT DISEASE WHILE IN THE SERVICE OF A VESSEL ENTITLED
TO MAINTENANCE AND CURE PAYMENTS DURING THE INTERIM BETWEEN THE PERIOD
THE INCIDENT OCCURRED AND THE TIME THE DISEASE WAS MEDICALLY DIAGNOSED
AND PROCLAIMED INCURABLE?" 

/2/ PETITIONER ALSO SOUGHT DAMAGES UNDER COUNTS FOUNDED ON THE JONES
ACT, 41 STAT. 1007, 46 U.S.C. SEC. 688, AND ON UNSEAWORTHINESS UNDER
GENERAL MARITIME LAW.  THE COURT OF APPEALS AFFIRMED THE JUDGMENT IN
FAVOR OF RESPONDENT ENTERED ON A JURY VERDICT OF NO CAUSE FOR ACTION ON
EITHER COUNT.  WE DENIED REVIEW OF THE JUDGMENT OF THE COURT OF APPEALS
IN RESPECT OF THAT AFFIRMANCE WHEN WE DENIED THE PETITION FOR WRIT OF
CERTIORARI AS RESPECTS QUESTION II PRESENTED IN THE PETITION. 

/3/ WHEN ASKED WHETHER PETITIONER MIGHT BE CURED BY TREATMENT, DR.
HEIL TESTIFIED:  " NO, NOT REALLY.  TREATMENT IS PRIMARILY SYMPTOMATIC
FOR THIS CONDITION.  THAT IS, PEOPLE WITH A VESTIBULAR DISORDER ARE APT
TO HAVE INTERMITTENT EPISODE OF DIZZINESS WHICH, ON OCCASION, ARE
SOMEWHAT MORE SEVERE.  TREATMENT IS LIMITED TO THOSE TIMES WHEN THE
PATIENT IS PARTICULARLY DIZZY.  THEY CAN OBTAIN SOME SYMPTOMATIC RELIEF
WITH MEDICATION.  OTHER THAN THAT, THERE IS NO SPECIFIC CURE OR
TREATMENT." 

/4/ ON THIS RECORD MAINTENANCE AND CURE COULD HAVE BEEN CLAIMED TO
CONTINUE FROM JUNE 29, 1968, THE DATE PETITIONER LEFT THE VESSEL, TO
APRIL 27, 1972, THE DATE DR. HEIL TESTIFIED THAT THE VESTIBULAR
DISORDER WAS PERMANENT IMMEDIATELY AFTER THE ACCIDENT AND NOT
SUSCEPTIBLE TO CURATIVE TREATMENT.  THE JURY, HOWEVER, AWARDED
PETITIONER MAINTENANCE AND CURE AT $8 PER DAY ONLY FOR THE PERIOD FROM
JUNE 29, 1968, TO JUNE 29, 1970.  PETITIONER'S APPEAL TO THE COURT OF
APPEALS DID NOT, HOWEVER, DRAW INTO QUESTION A CLAIM OF ENTITLEMENT TO
MAINTENANCE AND CURE FOR THE LONGER PERIOD.  APP. 25A.  IN THAT
CIRCUMSTANCE PETITIONER IS NOT ENTITLED TO THE RELEIF RESPECTING THE
LONGER PERIOD SOUGHT BY HIM IN THIS COURT, BRIEF FOR PETITIONER 19. 
SEE LE TULLE V. SCOFIELD, 308 U.S. 415, 421 - 422 (1940).  MOREOVER, IN
LIGHT OF OUR HOLDING THAT THE SHIPOWNER'S DUTY CONTINUED UNTIL DR.
HEIL'S TESTIMONY, IT IS NOT NECESSARY TO ADDRESS THE QUESTION WHETHER
THE JURY AWARD MIGHT ALSO BE SUSTAINED ON THE GROUND THAT THE
SHIPOWNER'S DUTY IN ANY EVENT OBLIGED HIM TO PROVIDE PALLIATIVE MEDICAL
CARE TO ARREST FURTHER PROGRESS OF THE CONDITION OR TO REDUCE PAIN, AND
WE INTIMATE NO VIEW WHATEVER UPON THE SHIPOWNER'S DUTY IN THAT REGARD. 
COMPARE WARD V. UNION BARGE LINE CORP., 443 F.2D 565 572 (CA3 1971),
WITH THE OPINION OF THE COURT OF APPEALS IN THIS CASE.  APP. 29A N. 1. 
NOR DO WE EXPRESS ANY VIEW WHETHER A SEAMAN MAY FORFEIT HIS RIGHT TO
MAINTENANCE AND CURE BY NOT REPORTING A KNOWN INJURY OR MALADY, OR BY
REFUSING FROM THE OUTSET TO ALLOW PROPER MEDICAL EXAMINATION, OR BY
DISCONTINUING MEDICAL CARE MADE AVAILABLE. 

/5/ SEE DESMOND V. UNITED STATES, 217 F.2D 948, 950 (CA2 1954):  "
THE SHIPOWNER IS LIABLE FOR MAINTENANCE AND CURE ONLY UNTIL THE DISEASE
IS CURED OR RECOGNIZED AS INCURABLE" (EMPHASIS SUPPLIED); VITCO V.
JONCICH, 130 F.SUPP.  945, 649 (SD CAL. 1955), AFF'D, 234 F.2D 161 (CA9
1956):  " THE SHIPOWNERS OBLIGATION TO FURNISH MAINTENANCE IS
COEXTENSIVE IN TIME WITH HIS DUTY TO FURNISH CURE . . . AND NEITHER
OBLIGATION IS DISCHARGED UNTIL THE EARLIEST TIME WHEN IT IS REASONABLY
AND IN GOOD FAITH DETERMINED BY THOSE CHARGED WITH THE SEAMAN'S CARE
AND TREATMENT THAT THE MAXIMUM CURE REASONABLY POSSIBLE HAS BEEN
EFFECTED" (EMPHASIS SUPPLIED). 

IT IS THEREFORE UNNECESSARY TO ADDRESS THE CONFLICT BETWEEN
COMMENTATORS WHETHER THE CONVENTION IS APPLICABLE TO GREAT LAKES
SHIPPING.  COMPARE G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY 323 (2D
ED. 1975) (" EVIDENTLY THE CONVENTION WAS NOT TO APPLY TO . . . GREAT
LAKES SHIPPING"), WITH 4 E. BENEDICT, ADMIRALTY 296 (6TH ED. 1940)
("(THE CONVENTION WOULD SEEM TO APPLY TO THE GREAT LAKES, WHICH ARE NOT
'INLAND WATERS' IN THE USUAL SENSE.  . .").  THE UNITED STATES'
RESERVATION TO THE CONVENTION PROVIDES: "(THE UNITED STATES GOVERNMENT
UNDERSTANDS AND CONSTRUES THE WORDS 'MARITIME NAVIGATION'  APPEARING IN
THIS CONVENTION TO MEAN NAVIGATION ON THE HIGH SEAS ONLY9"  54 STAT.
1704. 

LEONARD C. JAQUES ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

JOHN A. MUNDELL, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :




STANTON V. STANTON, 421 U.S. 7 


       STANTON V. STANTON

        APPEAL FROM THE SUPREME COURT OF UTAH

        NO. 73 - 1461.  ARGUED FEBRUARY 19, 1975--DECIDED

        APRIL 15, 1975; 30 UTAH 2D 315, 517 P. 2D

        1010, REVERSED AND REMANDED. 


    WHEN APPELLANT WIFE AND APPELLEE HUSBAND WERE DIVORCED IN UTAH

  IN 1960, THE DECREE, INCORPORATING THE PARTIES' STIPULATION,

  ORDERED APPELLEE TO MAKE MONTHLY PAYMENTS TO APPELLANT FOR THE

  SUPPORT OF THE PARTIES' CHILDREN, A DAUGHTER, THEN AGE SEVEN, AND

  A SON, THEN AGE FIVE.  SUBSEQUENTLY, WHEN THE DAUGHTER BECAME 18,

  APPELLEE DISCONTINUED PAYMENTS FOR HER SUPPORT, AND THE DIVORCE

  COURT, PURSUANT TO A UTAH STATUTE WHICH PROVIDES THAT THE PERIOD

OF MINORITY FOR MALES EXTENDS TO AGE 21 AND FOR FEMALES TO AGE

  18, DENIED APPELLANT'S MOTION FOR SUPPORT OF THE DAUGHTER FOR THE

  PERIOD AFTER SHE ATTAINED 18.  ON APPEAL THE UTAH SUPREME COURT

  AFFIRMED, REJECTING APPELLANT'S CONTENTION, INTER ALIA, THAT THE

  STATUTE VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

  AMENDMENT.  HELD: 

     1.  THE SUPPORT ISSUE IS NOT RENDERED MOOT BY THE FACT THAT

  APPELLANT AND THE DAUGHTER ARE NOW BOTH OVER 21, SINCE IF

  APPELLEE IS OBLIGATED BY THE DIVORCE DECREE TO SUPPORT THE

  DAUGHTER BETWEEN AGES 18 AND 21, THERE IS AN AMOUNT PAST DUE AND

  OWING.  NOR DOES APPELLANT LACK STANDING BECAUSE SHE IS NOT OF

  THE AGE GROUP AFFECTED BY THE STATUTE; ANOTHER STATUTE OBLIGATES

  HER TO SUPPORT THE DAUGHTER TO AGE 21.  PP. 11 - 12. 

     2.  IN THE CONTEST OF CHILD SUPPORT, THE CLASSIFICATION

  EFFECTUATED BY THE CHALLENGED STATUTE DENIES THE EQUAL PROTECTION

  OF THE LAWS, AS GUARANTEED BY THE FOURTEENTH AMENDMENT.  REED V.

REED, 404 U.S. 71.  NOTWITHSTANDING THE "OLD NOTIONS" CITED BY

  THE STATE COURT THAT IT IS THE MAN'S PRIMARY RESPONSIBILITY TO

  PROVIDE A HOME, THAT IT IS SALUTARY FOR HIM TO HAVE EDUCATION AND

  TRAINING BEFORE HE ASSUMES THAT RESPONSIBILITY, AND THAT FEMALES

  TEND TO MATURE AND MARRY EARLIER THAN MALES, THERE IS NOTHING

  RATIONAL IN THE STATUTORY DISTINCTION BETWEEN MALES AND FEMALES,

  WHICH, WHEN RELATED TO THE DIVORCE DECREE, RESULTS IN APPELLEE'S

  LIABILITY FOR SUPPORT FOR THE DAUGHTER ONLY TO AGE 18 BUT FOR THE

 SON TO AGE 21, THUS IMPOSING "CRITERIA WHOLLY UNRELATED TO THE

  OBJECTIVE OF THAT STATUTE."  PP. 13 - 17. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

 BURGER, C.J., AND DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, AND

  POWELL, JJ., JOINED.  REHNQUIST, J., FILED A DISSENTING OPINION,

  POST, P. 18. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE ISSUE WHETHER A STATE STATUTE SPECIFYING FOR
MALES A GREATER AGE OF MAJORITY THAN IT SPECIFIES FOR FEMALES DENIES,
IN THE CONTEXT OF A PARENT'S OBLIGATION FOR SUPPORT PAYMENTS FOR HIS
CHILDREN, THE EQUAL PROTECTION OF THE LAWS GUARENTEED BY SEC. 1 OF THE
FOURTEENTH AMENDMENT. 

I 

APPELLANT THELMA B. STANTON AND APPELLEE JAMES LAWRENCE STANTON,
JR., WERE MARRIED AT ELKO, NEVADA, IN FEBRUARY 1951.  AT THE SUIT OF
THE APPELLANT, THEY WERE DIVORCED IN UTAH ON NOVEMBER 29, 1960.  THEY
HAVE A DAUGHTER, SHERRI LYN, BORN IN FEBRUARY 1953, AND A SON, RICK
ARLUND, BORN IN JANUARY 1955.  SHERRI BECAME 18 ON FEBRUARY 12, 1971,
AND RICK ON JANUARY 29, 1973. 

DURING THE DIVORCE PROCEEDINGS IN THE DISTRICT COURT OF SALT LAKE
COUNTY, THE PARTIES ENTERED INTO A STIPULATION AS TO PROPERTY, CHILD
SUPPORT, AND ALIMONY.  THE COURT AWARDED CUSTODY OF THE CHILDREN TO
THEIR MOTHER AND INCORPORATED PROVISIONS OF THE STIPULATION INTO ITS
FINDINGS AND CONCLUSIONS AND INTO ITS DECREE OF DIVORCE.  SPECIFICALLY,
AS TO ALIMONY AND CHILD SUPPORT, THE DECREE PROVIDED: 

     " DEFENDANT IS ORDERED TO PAY TO PLAINTIFF THE SUM OF $300.00

  PER MONTH AS CHILD SUPPORT AND ALIMONY, $100.00 PER MONTH FOR

  EACH CHILD SUPPORT AND $100.00 PER MONTH AS ALIMONY, TO BE PAID

  ON OR BEFORE THE 1ST DAY OF EACH MONTH THROUGH THE OFFICE OF THE

 SALT LAKE COUNTY CLERK."  APP. 6. 

THE APPELLANT THEREAFTER REMARRIED; THE COURT, PURSUANT TO ANOTHER
STIPULATION, THEN MODIFIED THE DECREE TO RELIEVE THE APPELLEE FROM
PAYMENT OF FURTHER ALIMONY.  THE APPELLEE ALSO LATER REMARRIED. 

WHEN SHERRI ATTAINED 18 THE APPELLEE DISCONTINUED PAYMENTS FOR HER
SUPPORT.  IN MAY 1973 THE APPELLANT MOVED THE DIVORCE COURT FOR ENTRY
OF JUDGMENT IN HER FAVOR AND AGAINST THE APPELLEE FOR, AMONG OTHER
THINGS, SUPPORT FOR THE CHILDREN FOR THE PERIODS AFTER EACH
RESPECTIVELY ATTAINED THE AGE OF 18 YEARS.  THE COURT CONCLUDED THAT ON
FEVRUARY 12, 1971, SHERRI "BECAME 18 YEARS OF AGE, AND UNDER THE
PROVISIONS OF SEC. 15 - 2 - 1 UTAH CODE ANNOTATED 1953, THEREBY
ATTAINED HER MAJORITY.  DEFENDANT IS NOT OBLIGATED TO PLAINTIFF FOR
MAINTENANCE AND SUPPORT OF SHERRI LYN STANTON SINCE THAT DATE."  APP.
23.  NA ORDER DENYING THE APPELLANT'S MOTION WAS ENTERED ACCORDINGLY. 
ID., AT 24 - 25. 

THE APPELLANT APPEALED TO THE SUPREME COURT OF UTAH.  SHE CONTENDED
AMONG OTHER THINGS, THAT UTAH CODE ANN. SEC. 15 - 12 - 1 (1953) /1/ TO
THE EFFECT THAT THE PERIOD OF MINORITY FOR MALES EXTENDS TO AGE 21 AND
FOR FEMALES TO AGE 18, IS INVIDIOUSLY DISCRIMINATORY AND SERVES TO DENY
DUE PROCESS AND EQUAL PROTECTION OF THE LAWS, IN VIOLATION OF THE
DOURTEENTH AMENDMENT AND OF THE CORRESPONDING PROVISIONS OF THE UTAH
CONSTITUTION, NAMELY, ART. I, SEC. 7 AND 24, AND ART. IV, SEC. 1.  ON
THIS ISSUE, THE UTAH COURT AFFIRMED.  30 UTAH 2D 315, 517 P.2D 1010
(1974).  THE COURT ACKNOWLEDGED:  " THERE IS NO DOUBT THAT THE
QUESTIONED STATUTE TREATS MEN AND WOMEN DIFFERENTLY," BUT SAID THAT
PEOPLE MAY BE TREATED DIFFERENTLY "SO LONG AS THERE IS A REASONABLE
BASIS FOR THE CLASSIFICATION, WHICH IS RELATED TO THE PURPOSES OF THE
ACT, AND IT APPLIED EQUALLY AND UNIFORMLY TO ALL PERSONS WITHIN THE
CLASS."  30 UTAH 2D, AT 318, 517 P.2D, AT 1012.  THE COURT REFERRED TO
WHAT IT CALLED SOME "OLD NOTIONS," NAMELY, "THAT GENERALLY IT IS THE
MAN'S PRIMARY RESPONSIBILITY TO PROVIDE A HOME AND ITS ESSENTIALS,"
IBID.; THAT "IT IS A SALUTORY THING FOR HIM TO GET A GOOD EDUCATION
AND/OR TRAINING BEFORE HE UNDERTAKES THOSE RESPONSIBILITIES," 30 UTAH
2D, AT 319, 517 P.2D, AT 1012; THAT "GIRLS TEND GENERALLY TO MATURE
PHYSICALLY, EMOTIONALLY AND MENTALLY BEFORE BOYS"; AND THAT "THEY
GENERALLY TEND TO MARRY EARLIER," IBID, IT CONCLUDED: 

"(IT IS OUR JUDGMENT THAT THERE IS NO BASIS UPON WHICH WE WOULD BE
JUSTIFIED IN CONCLUDING THAT THE STATUTE IS SO BEYOND A REASONABLE
DOUBT IN CONFLICT WITH CONSTITUTIONAL PROVISIONS THAT IT SHOULD BE
STRICKEN DOWN AS INVALID."  30 UTAH 2D, AT 319, 517 P.2D, AT 1013.  IF
SUCH A CHANGE WERE DESIRABLE, THE COURT SAID, "THAT IS A MATTER WHICH
SHOULD COMMEND ITSELF TO THE ATTENTION OF THE LEGISLATURE."  30 UTAH
2D, AT 320, 517 P.2D, AT 1013.  THE APPELLANT, THUS, WAS HELD NOT
ENTITLED TO SUPPORT FOR SHERRI FOR THE PERIOD AFTER SHE ATTAINED 18,
BUT WAS ENTITLED TO SUPPORT FOR RICK "SURING HIS MINORITY" UNLESS
OTHERWISE ORDERED BY THE TRIAL COURT.  IBID., 517 P.2D, AT 1014. 

WE NOTED PROBABLE JURISDICTION.  419 U.S. 893 (1974). 

        II 

THE APPELLEE INITALLY SUGGESTS THAT THE SUPPORT ISSUE IS MOOT AND
THAT, IN ANY EVENT, THE APPELLANT LACKS STANDING.  THESE ARGUMENTS ARE
RELATED AND WE REJECT BOTH OF THEM. 

A. THE MOOTNESS SUGGESTION IS BASED ON THE PROPOSITIONS THAT BOTH
THE APPELLANT AND SHERRI ARE NOW OVER 21 AND THAT NEITHER POSSESSES
RIGHTS THAT "CAN BE AFFECTED BY THE OUTCOME OF THIS PROCEEDING."  BRIEF
FOR APPELLEE 9.  AT THE TIME THE CASE WAS BEFORE US ON THE
JURISDICTIONAL STATEMENT, THE APPELLEE SUGGESTED THAT THE CASE INVOLVED
A NONJUSTICIABLE POLITICAL QUESTION.  APPELLEE'S MOTION TO DISMISS 6 -
7.  EACH APPROACH, OF COURSE, OVERLOOKS THE FACT THAT WHAT IS AT ISSUE
IS SUPPORT FOR THE DAUGHTER DURING HER YEARS BETWEEN 18 AND 21.  IF
APPELLEE, UNDER THE DIVORCE DECREE, IS OBLIGATED FOR SHERRI'S SUPPORT
DURING THAT PERIOD, IT IS AN OBLIGATION THAT HAS NOT BEEN FULFILLED,
AND THERE IS AN AMOUNT PAST DUE AND OWING FORM THE APPELLEE.  THE
OBLIGATONN ISSUE, THEN, PLAINLY PRESENTS A CONTINUING LIVE CASE OR
CONTROVERSY.  IT IS NEITHER MOOT NOR NONJUSTICIABLE. 

B. THE SUGGESTION AS TO STANDING IS THAT THE APPELLANT IS NOT OF THE
AGE GROUP AFFECTED BY THE UTAH STATUTE AND THAT SHE THEREFORE LACKS A
PERSONAL STAKE IN THE RESOLUTION OF THE ISSUE.  IT IS SAID THAT WHEN
THE APPELLANT SIGNED THE STIPULATION AS TO SUPPORT PAYMENTS, SHE TOOK
THE UTAH LAW AS IT WAS AND THUS WAIVED, OR IS ESTOPPED FROM ASSERTING,
ANY RIGHT TO SUPPORT PAYMENTS AFTER THE DAUGHTER ATTAINED AGE 18. 

WE ARE SATISFIED THAT IT MAKES NO DIFFERENCE WHETHER THE APPELLANT'S
INTEREST IN ANY OBLIGATION FO THE APPELLEE, UNDER THE DIVORCE DECREE,
FOR SHERRI'S SUPPORT BETWEEN AGES 18 AND 21, IS REGARDED AS AN INTEREST
PERSONAL TO APPELLANT OR AS THAT OF A FIDUCIARY.  THE UTAH COURT HAS
DESCRIBED SUPPORT MONEY AS "COMPENSATION TO A SPOUSE FOR THE SUPPORT OF
MINOR CHILDREN."  ANDERSON V. ANDERSON, 110 UTAH 300, 306, 172 P.2D
132, 135 (1946).  AND THE RIGHT TO PAST DUE SUPPORT MONEY APPEARS TO BE
THE SUPPLYING SPOUSE'S NOT THE CHILD'S.  LARSEN V. LARSEN, 5 UTAH 2D
224, 228, 300 P.2D 596, 598 (1956).  SEE ALSO BAGGS V. ANDERSON,--UTAH
2D--,--,528 P.2D 141, 143 (1974).  THE APPELLANT, THEREFORE, CLEARLY
HAS A "PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY AS TO ASSURE
THAT CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF ISSUES
UPON WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULY
CONSTITUTIONAL QUESTIONS."  BAKER V. CARR, 369 U.S. 186, 204 (1962);
FLAST V. COHEN, 392 U.S. 83, 102 (1968).  WE SEE NOTHING IN THE
STIPULATION ITSELF THAT IS DIRECTED TO THE QUESTION WHEN MAJORITY IS
REACHED FOR PURPOSES OF SUPPORT PAYMENTS OR THAT SMACKS OF WAIVER.  IN
ADDITION, THE UNIFORM CIVIL LIABILITY FOR SUPPORT ACT HAS BEEN IN
EFFECT IN UTAH SINCE 1957.  LAWS OF UTAH, 1957, C. 110, NOW CODIFIED AS
UTAH CODE ANN. SEC. 78 - 45 - 1 THROUGH 78 - 45 - 13 (SUPP. 1973). 
HER CHILD."  THIS IS AN ADDITION TO THE MANDATE CONTAINED IN SEC. 78 -
45 - 3:  " EVERY MAN SHALL SUPPORT HIS WIFE AND HIS CHILD."  " CHILD"
IS DEFINED TO MEAN "A SON OR DAUGHTER UNDER THE AGE OF TWENTY-ONE
YEARS."  SEC. 78 - 45 - 2 (4).  AND SEC. 78 - 45 - 12 STATES:  " THE
RIGHTS HEREIN CREATED ARE IN ADDITION TO AND NOT IN SUBSTITUTION TO ANY
OTHER RIGHTS." 

THE APPELLANT HERSELF THUS HAD A LEGAL OBLIGATION UNDER UTAH LAW TO
SUPPORT HER DAUGHTER UNTIL SHERRI BECAME 21.  THAT OBLIGATION, HOWEVER,
OBVIOUSLY WAS NOT IN DEROGATION OF ANY RIGHT SHE MIGHT HAVE AGAINST THE
APPELLEE UNDER THE DIVORCE DECREE.  HER INTEREST IN THE CONTROVERSY,
THEREFORE, IS DISTINCT AND SIGNIFICANT AND IS ONE THAT ASSURES
"CONCRETE ADVERSENESS" AND PROPER STANDING ON HER PART. 

        III 

WE TURN TO THE MERITS.  THE APPELLANT AGRUES THAT UTAH'S STATUTORY
PRESCRIPTION ESTABLISHING DIFFERENT AGES OF MAJORITY FOR MALES AND
FEMALES DENIES EQUAL PROTECTION; THAT IT IS A CLASSIFICATION BASED
SOLELY ON SEX AND AFFECTS A CHILD'S "FUNDEMENTAL RIGHT" TO BE FED,
CLOTHED, AND SHELTERED BY ITS PARENTS; THAT NO COMPELLING STATE
INTEREST SUPPORTS THE CLASSIFICATION; AND THAT THE STATUTE CAN
WITHSTAND NO JUDICIAL SCRUTINY, "CLOSE" OR OTHERWISE, FOR IT HAS NO
RELATIONSHIP TO ANY ASCERTAINABLE LEGISLATIVE OBJECTIVE.  THE APPELLEE
CONTENDS THAT THE TEST IS THAT OF RATIONALITY AND THAT THE AGE
CLASSIFICATION HAS A RATIONAL BASIS AND ENDURES ANY ATTACK BASED ON
EQUAL PROTECTION. 

WE FIND IT UNNECESSARY IN THIS CASE TO DECIDE WHETHER A
CLASSIFICATION BASED ON SEX IS INHERENTLY SUSPECT.  SEE WEINBERGER V.
WIESENFELD, 420 U.S. 636 (1975); SCHLESINGER V. BALLARD, 419 U.S. 498
(1975); GEDULDIG V. AIELLO, 417 U.S. 484 (1974); KAHN V. SHEVIN, 416
U.S. 351 (1974); FRONTIERO V. RICHARDSON, 411 U.S. 677 (1973); REED V.
REED, 404 U.S. 71 (1971). 

REED, WE FEEL, IS CONTROLLING HERE.  THAT CASE PRESENTED AN EQUAL
PROTECTION CHALLENGE TO A PROVISION OF THE IDAHO PROBATE CODE WHICH
GAVE PREFERENCE TO MALES OVER FEMALES WHEN PERSONS OTHERWISE OF THE
SAME ENTITLEMENT APPLIED FOR APPOINTMENT AS ADMINISTRATOR OF A
DECEDENT'S ESTATE.  NO REGARD WAS PAID UNDER THE STATUTE TO THE
APPLICANTS'S RESPECTIVE INDIVIDUAL QUALIFICATIONS.  IN UPHOLDING THE
CHALLENGE, THE COURT REASONED THAT THE IDAHE STATUE ACCORDED DIFFERENT
TREATMENT OF THE BASIS OF SEX AND THAT IT "THUS ESTABLISHES A
CLASSIFICATION SUBJECT TO SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE." 
ID., AT 75.  THE CLAUSE, IT WAS SAID, DENIES TO STATES "THE POWER TO
LEGISLATE THAT DIFFERENT TREATMENT BE ACCORDED TO PERSONS PLACED BY A
STATUTE INTO DIFFERENT CLASSES ON THE BASIS OF CRITERIA WHOLLY
UNRELATED TO THE OBJECTIVE OF THAT STATUTE."  ID., AT 75 - 76.  " A
CLASSIFICATION 'MUST BE REASONABLE, NOT ARBITRARY, AND MUST REST UPON
SOME GROUND OF DIFFERENCE HAVING A FAIR AND SUBSTANTIAL RELATION TO THE
OBJECT OF THE LEGISLATION, SO THAT ALL PERSONS SIMILARLY CIRCUMSTANCED
SHALL BE TREATED ALIKE.'  ROYSTER GUANO CO. V. VIRGINIA, 253 U.S. 412,
415 (1920)."  ID., AT 76.  IT WAS NOT ENOUGH TO SAVE THE STATUTE THAT
AMONG ITS OBJECTIVES WERE THE ELIMINATION BOTH OF AN AREA OF POSSIBLE
FAMILY CONTROVERSY AND OF A HEARING ON THE COMPARATIVE MERITS OF
PETITIONING RELATIVES. 

THE TEST HERE, THEN, IS WHETHER THE DIFFERENCE IS SEX BETWEEN
CHILDREN WARRANTS THE DISTINCTION IN THE APPELLEE'S OBLIGATION TO
SUPPORT THAT IS DRAWN BY THE UTAH STATUTE.  WE CONCLUDE THAT IT DOES
NOT.  IT MAY BE TRUE, AS THE UTAH COURT OBSERVED AND AS IS AGRUED HERE,
THAT IT IS THE MAN'S PRIMARY RESPONSIBILITY TO PROVIDE A HOME AND THAT
IT IS SALUTARY FOR HIM TO HAVE EDUCATION AND TRAINING BEFORE HE ASSUMES
THAT RESPONSIBILITY; THAT GIRLS TEND TO MATURE EARLIER THAN BOYS; AND
THAT FEMALES TEND TO MARRY EARLIER THAN MALES.  THE LAST MENTIONED
FACTOR, HOWEVER, UNDER THE UTAH STATUTE LOSES WHATEVER WEIGHT IT
OTHERWISE MIGHT HAVE, FOR THE STATUTE STATES THAT "ALL MINORS OBTAIN
THEIR MAJORITY BY MARRIAGE"; THUS MINORITY, AND ALL THAT GOES WITH IS,
IS ABRUPTLY LOST BY MARRIAGE OF A PERSON OF EITHER SEX AT WHATEVER
TENDER AGE THE MARRIAGE OCCURS. 

NOTWITHSTANDING THE "OLD NOTIONS" TO WHICH THE UTAH COURT REFERRED,
WE PERCEIVE NOTHING RATIONAL IN THE DISTINCTION DRAWN BY SEC. 15 - 2 -
1 WHICH, WHEN RELATED TO THE DIVORCE DECREE, RESULTS IN THE APPELLEE'S
LIABILITY FOR SUPPORT FOR SHERRI ONLY TO AGE 18 BUT FOR RICK TO AGE
21.  THIS IMPOSES "CRITERIA WHOLLY UNRELATED TO THE OBJECTIVE OF THAT
STATUTE."  A CHILD, MALE OR FEMALE, IS STILL A CHILD.  NO LONGER IS THE
FEMALE DESTINED SOLELY FOR THE HOME AND THE REARING OF THE FAMILY, AND
ONLY THE MALE FOR THE MARKETPLACE AND THE WORLD OF IDEAS.  SEE TAYLOR
V. LOUISIANA, 419 U.S. 522, 535 N. 17 (1975).  WOMEN'S ACTIVITIES ADN
RESPONSIBILITIES ARE INCREASING AND EXPANDING.  COEDUCATION IS A FACT,
NOT A RARITY.  THE PRESENCE OF WOMEN IN BUSINESS, IN TEH PROFESSIONS,
IN GOVERNMENT AND, INDEED, IN ALL WALKS OF LIFE WHERE EDUCATION IS A
DESIRABLE, IF NOT ALWAYS A NECESSARY, ANTECEDENT IS APPARENT AND A
PROPER SUBJECT OF JUDICIAL NOTICE.  IF A SPECIFIED AGE OF MINORITY IS
REQUIRED FOR THE BOY IN ORDER TO ASSURE HIM PARENTAL SUPPORT WHILE HE
ATTAINS HIS EDUCATION AND TRAINING, SO, TOO, IT IS FOR THE GIRL.  TO
DISTINGUISH BETWEEN THE TWO ON EDUCATIONAL GROUNDS IS TO BE SELF
SERVING:  IF THE FEMALE IS NOT TO BE SUPPORTED SO LONG AS THE MALE, SHE
HARDLY CAN BE EXPECTED TO ATTEND SCHOOL AS LONG AS HE DOES, AND
BRINGING HER EDUCATION TO AN END EARLIER COINCIDES WITH THE ROLE-TYPING
SOCIETY HAS LONG IMPOSED.  AND IF ANY WEIGHT REMAINS IN THIS DAY TO THE
CLAIM OF EARLIER MATURITY OF THE FEMALE, WITH A CONCOMITANT INFERENCE
OF ABSENCE OF NEED FOR SUPPORT BEYOND 18, WE FAIL TO PERCEIVE ITS
UNQUESTIONED TRUTH OR ITS SIGNIFICANCE, PARTICULARLY WHEN MARRIAGE, AS
THE STATUTE PROVIDES, TERMINATES MINORITY FOR A PERSON OF EITHER SEX. 
ONLY ARKANSAS, SO FAR AS OUR INVESTIGATION REVEALS, REMAINS WITH UTAH
IN FIXING THE AGE OF MAMORITY FOR FEMALES AT 18 AND FOR MALES AT 21. 
ARK. STAT. ANN. SEC. 57 - 103 (1971).  SEE PETTY V. PETTY, 252 ARK.
1032, 482 S.W.2D 119 (1972).  FURTHERMORE, UTAH ITSELF DRAWS THE 18 -
21 DISTINCTION ONLY IN SEC. 15 - 2 - 1 DEFINING MINORITY, AND IN SEC.
30 - 1 - 9 RELATING TO MARRIAGE WITHOUT THE CONSENT OF PARENT OR
GUARDIAN.  SEE ALSO SEC. 20 - 1 - 2(4) MAKING VOID A MARRIAGE WHERE THE
MALE IS UNDER 16 OR THE FEMALE UNDER 14.  ELSEWHERE, IN THE STATE'S
PRESENT CONSTITUTIONAL AND STATUTORY STRUCTURE, THE MALE AND THE FEMALE
APPEAR TO BE TREATED ALIKE.  THE STATE'S CONSTITUTION PROVIDES THAT THE
RIGHTS OF UTAH CITIZENS TO VOTE AND HOLD OFFICE "SHALL NOT BE DENIED OR
ABRIDGED ON ACCOUNT OF SEX," AND THAT "(BOTH MALE AND FEMALE CITIZENS .
. . SHALL ENJOY EQUALLY ALL CIVI, POLITICAL AND RELIGIOUS RIGHTS AND
PRIVILEGES," ART. IV, SEC. 1, AND, SINCE LONG BEFORE THE NATION'S
ADOPTION OF THE TWENTY-SIXTH AMENDMENT IN 1971, DID PROVIDE THAT EVERY
CITIZEN "OF THE AGE OF TWENTY-ONE YEARS AND UPWARDS," WHO SATISFIES
DURATIONAL REQUIREMENTS, "SHALL BE ENTITLED TO VOTE."  ART. IV, SEC.
2.  UTAH'S STATUTES PROVIDE THAT ANY CITIZEN OVER THE AGE OF 21 WHO
MEETS SPECIFIED NONSEX QUALIFICATIONS IS "COMPETENT TO ACT AS A JUROR,"
UTAH CODE ANN. SEC. 78 - 46 - 8, MAY BE ADMITTED TO THE PRACTICE OF
LAW, SEC. 78 - 51 - 10, AND MAY ACT AS AN INCORPORATOR, SEC. 16 - 10 -
48, AND, IF UNDER 21 AND IN NEED, MAY BE ENTITLED TO PUBLIC ASSISTANCE,
SEC. 55 - 15A - 17.  THE AGES AT WHICH PERSONS MAY SERVE IN
LEGISLATIVE, EXECUTIVE, AND JUDICIAL OFFICES ARE THE SAME FOR MALES AND
FEMALES.  UTAH CONST., ART. VI, SEC. 5, ART. VII, SEC. 3, AND ART.
VIII, SEC. 2.  TOBACCO MAY NOT BE SOLD, PURCHASED OR POSSESSED BY
PERSONS OF EITHER SEX UNDER 19 YEARS OF AGE.  SEC. 76 - 10 - 104 AND 76
- 10 - 105 (SEE LAWS OF UTAH, 1974, SEC. 39 - 40).  NO AGE DIFFERENTIAL
IS IMPOSED WITH RESPECT TO THE ISSUANCE OF MOTOR VEHICLE LICENSES. 
SEC. 41 - 2 - 10.  STATE ADULT EDUCATION PROGRAMS ARE OPEN TO EVERY
PERSON 18 YEARS OF AGE OR OVER.  SEC. 53 - 30 - 5.  THE UNIFORM GIFTS
TO MINORS ACT IS IN EFFECT IN UTAH AND DEFINES A MINOR, FOR ITS
PURPOSES, AS ANY PERSON "WHO HAS NOT ATTAINED THE AGE OF TWENTY-ONE
YEARS."  SEC 75 - 15 - 2.11 (SUPP. 1973).  JUVENILE COURT JURISDICTION
EXTENDS TO PERSONS OF EITHER SEX UNDER A DESIGNATED AGE.  SEC. 55 - 10
64 AND 55 - 10 - 77.  EVERY PERSON OVER THE AGE OF 18 AND OF SOUND
MIND MAY DISPOSE OF HIS PROPERTY BY WILL.  SEC. 74 - 1 - 1.  AND THE
UNIFIRM CIVIL LIABILITY FOR SUPPORT ACT, NOTED ABOVE AND IN EFFECT IN
UTAH SINCE 1957, IMPOSES ON EACH PARENT AN OBLIGATION OF SUPPORT OF
BOTH SONS AND DAUGHTERS UNTIL AGE 21.  SEC. 78 - 45 - 2(4), 78 - 45 -
3, AND 78 - 45 - 4 (SUPP. 1973). 

THIS IS NOT TO SAY THAT SEC. 15 - 2 - 1 DOES NOT HAVE IMPORTANT
EFFECT IN APPLICATION.  A "MINOR" MAY DISAFFIRM HIS CONTRACTS.  SEC. 15
- 2 - 2, AN "INFANT" MUST APPEAR IN COURT BY GUARDIAN OR GUARDIAN AD
LITEM.  UTAH RULE CIV. PROC. 17(B).  A PARENT HAS A RIGHT OF ACTIO FOR
INJURY TO, OR WRONGFUL DEATH OF, "A MINOR CHILD."  SEC.  78 - 11 - 6. 
A PERSON "(UNDER THE AGE OF MAMORITY" IS NOT COMPETENT OR ENTITLED TO
SERVE AS AN ADMINISTRATOR OF A DECEDENT'S ESTATE, SEC. 75 - 4 - 4, OR
AS THE EXECUTOR OF A DECEDENT'S WILL.  SEC. 75 - 3 - 15(1).  THE
STATUTE OF LIMITATIONS IS TOLLED WHILE A PERSON ENTITLED TO BRING AN
ACTION IS "(UNDER THE AGE OF MAJORITY."  SEC.  78 - 12 - 36.  THUS, THE
DISTINCTION DRAWN BY SED.  15 - 2 - 1 AFFECTS OTHER RIGHTS AND DUTIES. 
IT HAS PERVASIVE EFFECT, BOTH DIRECT AND COLLATERAL. 

WE THEREFORE CONCLUDE THAT UNDER ANY TEST--COMPELLING STATE
INTEREST, OR RATIONAL BASIS, OR SOMETHING IN BETWEEN--, SEC. 15 - 2 -
1, IN THE CONTEXT OF CHILD SUPPORT, DOES NOT SURVIVE AN EQUAL
PROTECTION ATTACK.  IN THAT CONTEST, NO VALID DISTINCTION BETWEEN MALE
AND FEMALE MAY BE DRAWN. 

        IV 

OUR CONCLUSION THAT IN THE CONTEXT OF CHILD SUPPORT THE
CLASSIFICATION EFFECTUATED BY SEC. 15 - 2 - 1 DENIES THE EQUAL
PROTECTION OF THE LAWS, AS GUARANTEED BY THE FOURTEENTH AMENDMENT, DOES
NOT FINALLY RESOLVE THE CONTROVERSY AS BETWEEN THIS APPELLANT AND THIS
APPELLEE.  WITH THE AGE DIFFERENTIAL HELD INVALID, IT IS NOT FOR THIS
COURT TO DETERMINE WHEN THE APPELLEE'S OBLIGATION FOR HIS CHILDREN'S
SUPPORT, PURSUANT TO THE DIVORCE DECREE, TERMINATES UNDER UTAH LAW. 
THE APPELLANT ASSERTS THAT, WITH THE CLASSIFICATION ELIMINATED, THE
COMMON LAW APPLIES AND THAT AT COMMON LAW THE AGE OF MAJORITY FOR BOTH
MALES AND FEMALES IS 21.  THE APPELLEE CLAIMS THAT ANY UNCONSTITUTIONAL
INEQUALITY BETWEEN MALES AND FEMALES IS TO BE REMEDIED BY TREATING
MALES AS ADULTS AT AGE 18, RATHER THAN BY WITHHOLDING THE PRIVILEGES OF
ADULTHOOD FROM WOMEN UNTIL THEY REACH 21.  THIS PLAINLY IS AN ISSUE OF
STATE LAW TO BE RESOLVED BY THE UTAH COURTS ON REMAND; THE ISSUE WAS
NOTED, INCIDENTIALLY, BY THE SUPREME COURT OF UTAH.  30 UTAH 2D, AT
319, 517 P. 2D, AT 1013.  THE APPELLANT, ALTHOUGH PREVAILING HERE ON
THE FEDERAL CONSTITUTIONAL ISSUE, MAY OR MAY NOT ULTIMATELY WIN HER LAW
SUIT.  SEE HARRIGFELD V. DISTRICT COURT, 95 IDAHO 540, 511 P.2D 822
(1973); COMMONWEALTH V. BUTLER,--PA.--, 328 A.2D 851 (1974); SKINNER V.
OKLAHOMA, 316 U.S. 535, 542 - 543 (1942). 

THE JUDGMENT OF THE SUPREME COURT OF UTAH IS REVERSED AND THE CASE
IS REMANDED FOR FURTHER PROEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

                                  IT IS SO ORDERED. 

/1/ "15 - 2 - 1.  PERIOD OF MINORITY.--THE PERIOD OF MINORITY
EXTENDS IN MALES TO THE AGE OF TWENTY-ONE YEARS AND IN FEMALES TO THAT
OF EIGHTEEN YEARS; BUT ALL MINORS OBTAIN THEIR MAJORITY BY MARRIAGE." 
AS IS SO FEQUENTLY THE CASE WITH STATE STATUTES, LITTLE OR NO
LEGISLATIVE HISTORY IS AVAILABLE ON SEC. 15 - 2 - 1.  THE STATUTE HAS
ITS ROOTS IN A TERRITORIAL ACT APPROVED FEBRUARY 6, 1852, COMP. LAWS OF
UTAH, 1876, SEC. 1035. 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE COURT VIEWS THIS CASE AS REQUIRING A DETERMINATION OF WHETHER
THE UTAH STATUTE SPECIFYING THAT MALES MUST REACH A HIGHER AGE THAN
FEMALES BEFORE ATTAINING THEIR MAJORITY DENIES FEMALES THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY SEC. 1 OF THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.  THE COURT REGARDS THE
CONSTITUTIONALITY OF UTAH CODE ANN. SEC. 15 - 2 - 1 (1953) AS PROPERLY
AT ISSUE BECAUSE OF THE MANNER IN WHICH THE SUPREME COURT OF UTAH
APPROACHED AND DECIDED THE CASE.  BUT THIS COURT IS SUBJECT TO
CONSTRAINTS WITH RESPECT TO CONSTITUTIONAL ADJUDICATION WHICH MAY WELL
NOT BIND THE SUPREME COURT OF UTAH.  THIS COURT IS BOUND BY THE RULE,
"TO WHICH IT HAS RIGIDLY ADHERED.  . . .NEVER TO FORMULATE A RULE OF
CONSTITUTIONAL LAW BROADER THAN IS REQUIRED BY THE PRECISE FACTS TO
WHICH IT IS TO BE APPLIED," LIVERPOOL, N.Y. & PHILA.  S.S. CO. V.
COMMISSIONERS OF EMIGRATION, 113 U.S. 33, 39 (1885), AND WE TRY TO
AVOID DECIDING CONSTITUTIONAL QUESTIONS WHICH "COME TO US IN HIGHLY
ABSTRACT FORM," RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 575
(1947).  FIDELITY TO THESE LONGSTANDING RULES DICTATES THAT WE HAVE
SOME REGARD FOR THE FACTUAL BACKGROUND OF THIS CASE, AS FULLY OUTLINED
IN THE COURT'S OPINION, BEFORE DECIDING THE CONSTITUTIONAL QUESTION
THAT HAS BEEN TENDERED TO US. 

THE UTAH STATUTE WHICH THE COURT INVALIDATES "IN THE CONTEXT OF
CHILD SUPPORT," ANTE, AT 17, DOES NOT BY ITS TERMS DEFINE THE AGE AT
WHICH THE OBLIGATION OF A DIVORCED PARENT TO SUPPORT A CHILD CEASES. 
THE PARTIES CONCEDE THAT THE STANTONS COULD HAVE PROVIDED IN THEIR
PROPERTY SETTLEMENT AGREEMENT THAT APPELLEE'S OBLIGATION TO SUPPORT
SHERRI AND RICK WOULD TERMINATE WHEN BOTH TURNED 18, WHEN BOTH TURNED
21, OR WHEN ONE TURNED 18 AND THE OTHER TURNED 21.  TR. OF ORAL ARG. 4,
14, 23.  THIS CASE ARISES ONLY BECAUSE APPELLANT AND APPELLEE MADE NO
PROVISION IN THEIR PROPERTY SETTLEMENT AGREEMENT FIXING THE AGE AT
WHICH APPELLEE'S OBLIGATION TO SUPPORT HIS SON OR DAUGHTER WOULD
TERMINATE.  THE SUPREME COURT OF UTAH, FACED WITH THE NECESSITY OF
FILLING IN THIS BLANK, REFERRED TO THE STATE'S GENERAL AGE-OF-MAJORITY
STATUTE IN SUPPLYING THE TERMS WHICH THE PARTIES HAD NEGLECTED TO
SPECIFY THEMSELVES. 

HAD THE SUPREME COURT OF UTAH RELIED UPON THE STATUTE ONLY INSOFAR
AS IS CAST LIGHT ON THE INTENTION OF THE PARTIES REGARDING THE CHILD
SUPPORT OBLIGATIONS CONTAINED IN THE DIVORCE DECREE, THERE WOULD BE NO
BASIS FOR REACHING THE CONSTITUTIONALITY OF THE STATUTE.  IN SUPPLYING
THE MISSING TERM IN AN AGREEMENT EXECUTED BETWEEN TWO PRIVATE PARTIES,
A COURT ORDINARILY LOOKS TO THE CUSTOMS, MORES, AND PRACTICE OF TH
EPARTIES IN AN ATTEMPT TO ASCERTAIN WHAT WAS INTENDED.  IF, UPON
CONSIDERATION OF THESE FACTORS, INCLUDING THE AGE-OF-MAJORITY STATUTE,
THE UTAH SUPREME COURT HAD CONCLUDED THAT THE STANTONS INTENDED TO
BESTOW MORE OF THEIR LIMITED RESOURCES UPON A SON THAN A DAUGHTER,
PERHAPS FOR THE REASONS STATED IN THE OPINION OF THE SUPREME COURT OF
UTAH, THAT STRIKES ME AS AN ENTIRELY PERMISSIBLE BASIS UPON WHICH TO
CONSTRUE THE PROPERTY SETTLEMENT AGREEMENT. 

ON THE OTHER HAND, THE SUPREME COURT OF UTAH MAY HAVE CONCLUDED
THAT, THE PARTIES HAVING FAILED TO SPECIFY THIS TERM OF THE AGREEMENT,
THE QUESTION BECAME ONE OF UTAH STATUTORY LAW RATHER THAN ONE OF
DETERMINING THE INTENT OF THE PARTIES.  IF THAT WERE ITS DETERMINATION,
THE CONSTITUTIONALITY OF UTAH CODE ANN. SEC. 15 - 2 - 1 (1953), WOULD
INDEED BE IMPLICATED IN THIS CASE. 

I DO NOT THINK IT POSSIBLE TO SAY WOTH CONFIDENCE WHICH OF THESE TWO
APPROACHES WAS TAKEN BY THE SUPREME COURT OF UTAH IN THIS CASE.  IN
ADDITION TO THIS DIFFICULTY, THERE IS ANOTHER ELEMENT OF ATTENUATION
BETWEEN THE CLAIM ASSERTED ON BEHALF OF SHERRI TO BE TREATED LIKE HER
BROTHER FOR PURPOSES OF CHILD SUPPORT, AND THE ACTUAL CASE BEFORE US.
UTAH HAS A COMPREHENSIVE SCHEME DEALING WITH CHILD SUPPORT IN ITS
UNIFORM CIVIL LIABILITY FOR SUPPORT ACT, UTAH CODE ANN. SEC. 78 - 45 -
1 ET SEQ.  (SUPP. 1973).  UNDER THAT ACT, "CHILD" IS DEFINED AS "A SON
OR DAUGHTER UNDER THE AGE OF TWENTY-ONE YEARS," SEC. 78 - 45 - 2(4). 
THUS, FOR PURPOSES OF ANY DIRECT CLAIM BY SHERRI AGAINST APPELLEE, UTAH
LAW TREATS HER PRECISELY AS IT DOES HER BROTHER.  THE CLAIM ASSERTED IN
THIS CASE IS NOT BY SHERRI, BUT BY HER MOTHER, AND THE SOURCE OF ANY
CLAIM WHICH THE MOTHER HAS AGAINST APPELLEE NECESSARILY ARISES OUT OF
THE VOLUNTARY PROPERTY SETTLEMENT AGREEMENT WHICH THEY EXECUTED AT THE
TIME OF THEIR DIVORCE. 

THESE FACTORS LEAD ME TO CONCLUDE THAT THE ISSUE WHICH IT DECIDES,
CANNOT PROPERLY BE DECIDED ON THESE FACTS IF WE ARE TO ADHERE TO OUR
ESTABLISHED POLICY OF AVOIDING UNNECESSARY CONSTITUTIONAL
ADJUDICATION.  I WOULD DISMISS THE APPEAL FOR THAT REASON.  RESCUE ARMY
V. MUNICIPAL COURT, SUPRA; SOCIALIST LABOR PARTY V. GILLIGAN, 406 U.S.
583 (1972). 

BRYCE E. ROE ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF
WAS WILLIAM G. FOWLER. 

J. DENNIS FREDERICK ARGUED THE CAUSE FOR APPELLEE.  ON THE BRIEF WAS
D. GARY CHRISTIAN. 
..END :














MC LUCAS V. DE CHAMPLAIN, 421 U.S. 21 


       MC LUCAS, SECRETARY OF THE AIR FORCE, ET AL. V. DE CHAMPLAIN

        APPEAL FORM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA

NO. 73 - 1346.  ARGUED DECEMBER 9, 1974--DECIDED APRIL 15,

         1975; SEE PG. 22 


    APPELLEE, AN AIR FORCE MASTER SERGEANT WHOSE COURT-MARTIAL

  CONVICTION FOR VIOLATIONS OF ART. 134 OF THE UNIFORM CODE OF

  MILITARY JUSTICE INVOLVING, INTER ALIA, UNAUTHORIZED USE OF

  CLASSIFIED DOCUMENTS AND INFORMATION, HAD BEEN REVERSED FOR

  IMPROPER ADMISSION OF CERTAIN EVIDENCE, AND WHOSE RETRIAL WAS

  ABOUT TO COMMENCE, FILED THIS ACTION FOR INJUNCTIVE RELIEF IN

  FEDERAL DISTRICT COURT AGAINST APPELLANT MILITARY AUTHORITIES,

  ASSERTING THAT ART. 134 WAS UNCONSTITUTIONALLY VAGUE AND THAT

  CERTAIN LIMITATIONS IMPOSED BY THE MILITARY AUTHORITIES ON THE

  DEFENSE'S PRETRIAL ACCESS TO CLASSIFIED DOCUMENTS IN ISSUE,

  DENIED HIM DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL.  THE

  DISTRICT COURT PRELIMINARILY ENJOINED APPELLANTS FROM PROCEEDING

  WITH THE COURT-MARTIAL ON THE ART. 134 CHARGES, AND ALSO ON ANY

  OTHER CHARGES UNLESS CIVILIAN DEFENSE COUNSEL AND CERTAIN OTHER

  PERSONS WERE ALLOWED UNLIMITED ACCESS TO DOCUMENTS MATERIAL TO

  THE DEFENSE.  THE COURT HELD THAT THE CIRCUMSTANCES JUSTIFIED AN

  EXCEPTION TO THE RULE REQUIRING A SERVICEMAN TO EXHAUST HIS

  MILITARY REMEDIES BEFORE A FEDERAL COURT WILL INTERFERE WITH

  COURT-MARTIAL PROCEEDINGS, THAT THE UNCONSTITUTIONALITY OF ART.

134 WAS CLEAR FROM THE COURTS OF APPEALS DECISIONS IN AVRECH V.

  SECRETARY OF THE NAVY, 155 U.S. APP. D.C. 352, 477 F.2D 1237, AND

  LEVY V. PARKER, 478 F.2D 772, THAT THE RESTRICTIONS PLACED ON

  ACCESS TO DOCUMENTS WERE EXCESSIVE, AND THAT APPELLEE HAD

  ADEQUATELY SHOWN IRREPARABLE INJURY.  APPELLANTS DIRECTLY

  APPEALED TO THIS COURT UNDER 28 U.S.C. SEC. 1252, WHICH ALLOWS

  APPEAL FROM "AN INTERLOCUTORY OR FINAL JUDGMENT, DECREE OR ORDER

  OF ANY COURT OF THE UNITED STATES . . . HOLDING AN ACT OF

  CONGRESS UNCONSTITUTIONAL IN ANY CIVIL ACTION . . . TO WHICH THE

  UNITED STATES OR ANY OF ITS AGENCIES, OR ANY OFFICER OR EMPLOYEE

THEREOF, AS SUCH OFFICER OR EMPLOYEE, IS A PARTY."  HELD: 

     1.  WHETHER A THREE-JUDGE DISTRICT COURT WAS OR WAS NOT

  REQUIRED UNDER 28 U.S.C. SEC. 2282 AS TO APPELLEE'S ART. 134

  CLAIM, THE CASE IS PROPERLY BEFORE THIS COURT ON APPEAL UNDER 28

  U.S.C. SEC. 1252, SINCE IT IS A CIVIL ACTION, APPELLANTS ARE

  OFFICERS OF THE UNITED STATES ACTING IN THEIR OFFICIAL

  CAPACITIES, ART. 134 IS AN " ACT OF CONGRESS," AND "THE BASIS OF

  THE DICISION BELOW IN FACT WAS THAT THE ACT OF CONGRESS WAS

  UNCONSTITUTIONAL," UNITED STATES V. RAINES, 362 U.S. 17, 20.  PP.

  27 - 32. 

    2.  UNDER THIS COURT'S DECISIONS IN PARKER V. LEVY, 417 U.S.

  733, AND SECRETARY OF THE NAVY V. AVRECH, 418 U.S. 676, HOLDING

  THAT ART. 134 IS NOT UNCONSTITUTIONALLY VAGUE, APPELLEE'S

  CONSTITUTIONAL CLAIM AS TO ART. 134 IS CLEARLY INSUBSTANTIAL AND

  MUST BE DISMISSED.  P. 32. 

   3.  RELIEF AS TO APPELLEE'S ACCESS CLAIM IS SQUARELY PRECLUDED

  BY THIS COURT'S HOLDING IN SCHLESINGER V. COUNCILMAN, 420 U.S.

  738, THAT WHEN A SERVICEMAN CHARGED WITH CRIMES BY MILITARY

  AUTHORITIES CAN SHOW NO HARM OTHER THAN THAT ATTENDANT TO

  RESOLUTION OF HIS CASE IN THE MILITARY COURT SYSTEM, THE FEDERAL

  DISTRICE COURTS MUST REFRAIN FROM INTERVENTION," ADN HENCE THE

  "UNLIMITED ACCESS" ASPECT OF APPELLEES SUIT MUST BE DISMISSED FOR

  FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.  PP.

  33 - 34. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BRUGER, C.J., AND STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ.,

  JOINED.  BRENNAN, J., FILED AN OPINION CONCURRING IN THE

  JUDGMENT, IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED, POST, P.

  34. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PRELIMINARILY ENJOINED
APPELLANTS, THE SECRETARY OF THE AIR FORCE AND FIVE AIR FORCE OFFICERS,
/1/ FROM PROCEEDING WITH APPELLEE DE CHAMPLAIN'S COURT-MARTIAL (I) ON
CHARGES BASED UPON ART. 134 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10
U.S.C. SEC. 934, AND (II) ON ANY CHARGES WHATEVER UNLESS APPELLANTS
ALLOWED CIVILIAN DEFENSE COUNSEL AND CERTAIN OTHER PERSONS UNLIMITED
ACCESS TO DOCUMENTS MATERIAL TO DE CHAMPLAIN'S DEFENSE.  367 F. SUPP.
1291.  (1973).  THE MILITARY AUTHORITIES APPEALED DIRECTLY TO THIS
COURT, AVERRING JURISDICTION UNDER 28 U.S.C. SEC. 1252.  WE POSTPONED
THE JURISDICTIONAL QUESTION TO THE HEARING ON THE MERITS.  418 U.S. 904
(1974).  WE HOLD THE CASE PROPERLY HERE UNDER SEC. 1252 AND, FINDING
ITS DISPOSITION CONTROLLED BY OUR INTERVENING DECISIONS IN PARKER V.
LEVY, 417 U.S. 733 (1974), AND SCHLESINGER V. COUNCILMAN, 420 U.S. 738
(1975), VACATE THE PRELIMINARY INJUNCTION AND REMAND WITH DIRECTIONS TO
DISMISS THE ACTION. 

     I 

ARTICLE 134 PROVIDES, INTER ALIA, THAT "CRIMES AND OFFENSES NOT
CAPITAL, OF WHICH PERSONS SUBJECT TO THIS CHAPTER MAY BE GUILTY, SHALL
BE TAKEN COGNIZANCE OF BY A GENERAL, SPECIAL, OR SUMMARY COURT-MARTIAL,
ACCORDING TO THE NATURE AND DEGREE OF THE OFFENSE ..."  THIS CLAUSE OF
THE ARTICLE IS AN ASSIMILATIVE CRIMES PROVISION, CONFERRING COURT
MARTIAL JURISDICTION OVER SERVICE-CONNECTED, NON-CAPITAL FEDERAL
OFFENSES NOT COVERED BY SPECIFIC PROVISIONS OF THE CODE.  /2/ IN 1971,
COURT-MARTIAL CHARGES WERE PREFERRED UNDER THIS PROVISION AGAINST
APPELLEE DE CHAMPLAIN, AN AIR FORCE MASTER SERGEANT.  SPECIFICALLY, DE
CHAMPLAIN WAS CHARGED WITH HAVING COPIED CLASSIFIED DOCUMENTS, IN
VIOLATION OF 18 U.S.C. SEC. 793 (B), AND WITH HAVING ATTEMPTED TO
DELIVER SUCH COPIES TO AN UNAUTHORIZED PERSON, IN VIOLATION OF 18
U.S.C. SEC. 793(D).  DE CHAMPLAIN WAS ALSO CHARGED, UNDER ART. 81 OF
THE UNIFORM CODE, 10 U.S.C. SEC. 881, WITH CONSPIRACY TO COMMUNICATE
CLASSIFIED INFORMATION TO AN AGENT OF A FOREIGN GOVERNMENT, IN
VIOLATION OF ART. 134 AND 50 U.S.C. SEC. 783(B), AND, UNDER ART. 92, 10
U.S.C. SEC. 892, WITH FAILURE TO OBEY AN AIR FORCE REGULATION REQUIRING
THAT CONTACTS WITH FOREIGN AGENTS BE REPORTED.  ALL OF THESE CHARGES
WERE PREMISED ON ALLEGATIONS THAT, WHILE STATIONED IN THIALAND, DE
CHAMPLAIN TWICE HAD BEEN IN THE COMPANY OF A SOVIET MBASSY OFFICIAL AND
SUBSEQUENTLY WAS FOUND IN POSSESSION OF 24 OFFICIAL AIR FORCE
DOCUMENTS, RANGING IN CLASSIFICATION FROM "CONFIDENTIAL" TO "TOP
SECRET."  THE GENERAL COURT-MARTIAL CONVICTED DE CHAMPLAIN OF ALL
CHARGES.  ON APPEAL, THE IAR FORCE COURT OF MILITARY REVIEW HELD THAT
CERTAIN INCULPATORY STATEMENTS MADE BY DE CHAMPLAIN SHOULD NOT HAVE
BEEN ADMITTED INTO EVIDENCE; THE COURT THEREFORE REVERSED THE
CONVICTION AND REMANDED FOR A NEW TRIAL.  /3/ THE COURT OF MILITARY
APPEALS AFFIRMED.  /4/ 

THE MILITARY AUTHORITIES THEN PREPARED TO RETRY DE CHAMPLAIN BEFORE
A GENERAL COURT-MARTIAL ON SUBSTANTIALLY THE SAME CHARGES.  THE CHARGES
WERE AMENDED, HOWEVER, TO DELETE ALL ALLEGATIONS PERTAINING TO THREE OF
THE CLASSIFIED DOCUMENTS, THE AIR FORCE CHOOSING TO FORGO PROSECUTION
AS TO THESE DOCUMENTS RATHER THAN COMPROMISE THEIR CONFIDENTIALITY. 
THE AIR FORCE ALSO DECIDED NOT TO INTRODUCE AT THE NEW TRIAL 12 OF THE
DOCUMENTS, ASSERTEDLY BECAUSE OF THEIR CONNECTION WITH DE CHAMPLAIN'S
INADMISSIBLE INCULPATORY STATEMENTS.  COPIES OF ALL OF THESE DOCUMENTS
ARE CONTAINED IN THE RECORD OF DE CHAMPLAIN'S FIRST COURT-MARTIAL, TO
WHICH THE AIR FORCE HAS GIVEN DE CHAMPLAIN'S MILITARY COUNSEL FULL
ACCESS.  CIVILIAN DEFENSE COUNSEL, HOWEVER, WERE ALLOWED ACCESS ONLY TO
UNCLASIFIED PORTIONS OF THE RECORD AND THUS WERE NOT PERMITTED TO
INSPECT THOSE DOCUMENTS THAT WILL NOT BE IN ISSUE AT THE RETRIAL.  THE
AIR FORCE AUTHORIZED DE CHAMPLAIN, HIS MILITARY COUNSEL, CHIEF CIVILIAN
COUNSEL, ONE LEGAL ASSOCIATE, AND ONE SECRETARY TO HAVE ACCESS TO THE
NINE REMAINING DOCUMENTS THAT THE CHARGES AGAINST DE CHAMPLAIN NOW
CONCERN.  IT IMPOSED RESTRICTIONS, HOWEVER, ON THE USE OF THE
DOCUMENTS:  THEY WERE TO BE EXAMINED ONLY IN THE PRESENCE OF PERSONS
WITH APPROPRIATE SECURITY CLEARANCES; NO COPIES WERE TO BE MADE;
WRITTEN NOTES PERTAINING TO CLASSIFIED INFORMATION WERE TO REMAIN IN
AIR FORCE CUSTODY; AND THE INFORMATION WAS NOT TO BE DISCUSSED WITH
ANYONE OTHER THAN THOSE WHO HAD BEEN AUTHORIZED ACCESS. 

AT A PRETRIAL HEARING CONDUCTED PURSUANT TO 10 U.S.C. SEC. 839, DE
CHAMPLAIN CHALLENGED THESE RESTRICTIONS.  THE PRESIDING MILITARY JUDGE
SUSTAINED THE RESTRICTIONS, BUT GRANTED THE CIVILIAN DEFENSE TEAM
ACCESS TO PORTIONS OF THE ORIGINAL RECORD PERTAINING TO THE NINE
DOCUMENTS STILL AT ISSUE, SUBJECT TO THE RESTRICTIONS APPLICABLE TO THE
DOCUMENTS THEMSELVES.  DE CHAMPLAIN ALSO MOVED TO DISMISS THE CHARGES
ON VARIOUS GROUNDS, CLAIMING, INTER ALIA, THAT ART. 134 WAS
UNCONSTITUTIONAL.  THE PRESIDING JUDGE DENIED THE MOTION.  DE CHAMPLAIN
MADE THE SAME CLAIMS IN THREE PETITIONS TO THE COURT OF MILITARY
APPEALS FOR EXTRAORDINARY RELIEF.  THAT COURT DENIED THE PETITIONS, /5/
STATING ON THE LAST OCCASION THAT "(A) PETITION FOR EXTRAORDINARY
RELIEF IS NOT A SUBSTITUTE FOR APPEAL."  /6/ 

DE CHAMPLAIN'S SECOND COURT-MARTIAL WAS TO BEGIN ON NOVEMBER 15,
1973.  ON OCTOBER 3, HE FILED THIS ACTION IN THE DISTRICT COURT SEEKING
INJUNCTIVE RELIEF AND ASSERTING, AMONG OTHER CLAIMS, THAT ART. 134 WAS
UNCONSTITUTIONALLY VAGUE AND THAT THE LIMITATIONS ON ACCESS TO AND USE
OF THE CLASSIFIED DOCUMENTS DENIED HIM DUE PROCESS AND EFFECTIVE
ASSISTANCE OF COUNSEL.  THE DEFENDANT MILITARY AUTHORITIES MOVED TO
DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A
CLAIM UPON WHICH RELIEF COULD BE GRANTED.  THE COURT DENIED THE
MOTION.  IT AGREED WITH THE MILITARY AUTHORITIES THAT "GENERALLY A
SERVICEMAN MUST FIRST EXHAUST HIS MILITARY REMEDIES BEFORE A FEDERAL
COURT WILL INTERFERE WITH COURT MARTIAL PROCEEDINGS."  367 F.SUPP., AT
1294.  THE COURT BELIEVED, HOWEVER, THAT THE CIRCUMSTANCES OF THE CASE
JUSTIFIED AN EXCEPTION TO THE RULE.  BECAUSE THE ISSUES PRESENTED IN
THE CASE WERE "PURELY LEGAL" AND DID "NOT NECESSITATE DETERMINATIONS
WHICH THE MILITARY FORUM IS BEST EQUIPPED TO MAKE," AND BECAUSE "
SERGEANT DE CHAMPLAIN (WOULD) BE DENIED FUNDAMENTAL CONSTITUTIONAL
GUARANTEES" UNLESS THE COURT INTERVENED, THE COURT CONCLUDED THAT THERE
WAS NO JUSTIFICATION FOR DEFERRING CONSIDERATION OF THE ISSUES UNTIL
AFTER DE CHAMPLAIN'S COURT-MARTIAL AND SUBSEQUENT MILITARY APPELLATE
REVIEW.  IBID. 

THE DISTRICT COURT FURTHER CONCLUDED THAT DE CHAMPLAIN HAD SATISFIED
THE REQUIREMENTS FOR A PRELIMINARY INJUNCTION.  IT RULED THAT THE
UNCONSTITUTIONALITY OF ART. 134 WAS CLEAR FROM THE DECISIONS OF THE
COURTS OF APPEALS IN AVRECH V. SECRETARY OF THE NAVY, 155 U.S. APP.
D.C. 352, 477 F.2D 1237 (1973), AND LEVY V. PARKER, 478 F.2D 772 (CA3
1973), BOTH OF WHICH WERE THEN PENDING ON CERTIORARI IN THIS COURT. 
THE DISTRICT COURT FURTHER HELD THAT THE RESTRICTIONS ON ACCESS TO THE
NINE DOCUMENTS THAT THE CHARGES NOW CONCERN AND TO THE RECORD OF THE
PREVIOUS COURT-MARTIAL WERE "CLEARLY EXCESSIVE" AND ABRIDGED DE
CHAMPLIAN'S RIGHT TO A FAIR TRIAL. 

FINALLY, THE COURT CONCLUDED THAT DE CHAMPLAIN ADEQUATELY HAD
DEMONSTRATED IRREPARABLE INJURY:  HE HAD BEEN IN CONFINEMENT SINCE
BEFORE HIS ORIGINAL COURT-MARTIAL AND, IF AGAIN CONVICTED, WOULD REMAIN
CONFINED PENDING REVIEW BY THE MILITARY APPELLATE COURT.  /7/ THE
DISTRICT COURT THEREFORE PRELIMINARILY ENJOINED THE MILITARY
AUTHORITIES FROM PROCEEDING WITH THE ART. 134 CHARGES.  IT FURTHER
ENJOINED PROSECUTION "ON ANY AND ALL CHARGES" UNLESS THE AIR FORCE
GRANTED "FULL AND UNLIMITED ACCESS TO ALL DOCUMENTS RELEVANT AND
MATERIAL TO THE CASE" TO DE CHAMPLAIN'S CIVILIAN DEFENSE COUNSEL "AND
SUCH LEGAL ASSOCIATES AND ASSISTANTS, SUBJECT TO AN APPROPRIATE
PROTECTIVE ORDER, AS ARE NECESSARY TO SAID COUNSEL'S ADEQUATE
PREPARATION FOR TRIAL."  /8/

        II 

THE CASE COMES TO US IN A MOST UNUSUAL POSTURE.  INSOFAR AS THE
COMPLAINT SOUGHT AN INJUNCTION AGAINST ENFORCEMENT OF ART. 134 ON THE
GROUND OF ITS ASSERTED UNCONSTITUTIONALITY, THE CASE FALLS WITHIN THE
LITERAL MANDATE OF 28 U.S.C. SEC. 2282.  THAT SECTION PROVIDES THAT
"(AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE ENFORCEMENT,
OPERATION OR EXECUTION OF ANY ACT OF CONGRESS FOR REPUGNANCE TO THE
CONSTITUTION OF THE UNITED STATES SHALL NOT BE GRANTED BY ANY DISTRICT
COURT OR JUDGE THEREOF UNLESS THE APPLICATION THERFOR IS HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES...."  ALTHOUGH NEITHER
OF THE PARTIES TO THIS SUIT APPLIED TO THE DISTRICT COURT FOR
CONVENTION OF A THREE-JUDGE COURT, THE SECTION'S REQUIREMENT IS
JURISDICTIONAL, AND IF IT APPLIES A SINGLE DISTRICT JUDGE HAS NO POWER
TO ACT.  SEE, E.G, FLEMMING V. NESTOR, 363 U.S. 603, 606 - 607 (1960);
KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, 153 (1963).  A SINGLE JUDGE,
HOWEVER, CAN DISMISS THE ACTION FOR WANT OF JUSTICIABILITY OR GENERAL
SUBJECT-MATTER JURISDICTION.  GONZALEX V. AUTOMATIC EMPLOYEES CREDIT
UNION, 419 U.S. 90, 100 (1974).  WE ALSO HAVE HELD THAT GENERAL SUBJECT
MATTER JURISDICTION IS LACKING WHEN THE CLAIM OF UNCONSTITUTIONALITY IS
INSUBSTANTIAL, I.E., OBVIOUSLY WITHOUT MERIT OR CLEARLY CONCLUDED BY
THIS COURT'S PREVIOUS DECISIONS.  EX PARTE PORESKY, 290 U.S. 30, 32
(1933); IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN, 370 U.S. 713, 715
(1962); GOOSBY V. OSSER, 409 U.S. 512, 518 - 519 (1973). 

THE DISTRICT COURT HERE, HOWEVER, BVIOUSLY DID NOT CONSIDER DE
CHAMPLAIN'S CONSTITUTIONAL CLAIM INSUBSTANTIAL; ON THE CONTRARY, THE
COURT DENIED THE MOTION TO DISMISS AND WENT ON TO GRANT A PRELIMINARY
INJUNCTION.  ACCORDING TO DE CHAMPLAIN, A THREE-JUDGE COURT WAS DEEMED
UNNECESSARY AT THE TIME THE COMPLAINT WAS FILED, NOT BECAUSE HIS CLAIM
WAS INSUBSTANTIAL, BUT BECAUSE THE UNCONSTITUTIONALITY OF THE STATUTE
APPEARED SETTLED BY THE COURT OF APPEALS DECISION IN AVERCH V.
SECRETARY OF THE NAVY, SUPTA, A DECISION BINDING ON THE DISTRICT
COURT.  HENCE, IT IS SAID, THE CASE SEEMED TO PRESENT A VARIANT,
HOWEVER ATTENUATED, OF BAILEY V. PATTERSON, 369 U.S. 31 (1962), AND THE
DISTRICT COURT THOUGHT ITSELF EMPOWERED TO ACT SINCE THE "DECISION
COULD NOT POSSIBLY GO IN ANY MANNER SAVE ON."  /9/ 

BUT THE PREDICTION PROVED TO BE ILL-FOUNDED; SUBSEQUENTLY, THE COURT
OF APPEALS DECISION IN AVRECH WAS REVERSED BY THIS COURT.  SECRETARY OF
THE NAVY V. AVRECH, 418 U.S. 676 (1974).  IN CONSEQUENCE OF THIS,
APPELLEE DE CHAMPLAIN ARGUED IN HIS MOTION TO DISMISS AND BRIEF TO THIS
COURT THAT THE QUESTION OF ART. 134'S CONSTITUTIONALITY WAS SUBSTANTIAL
AND THUS A THREE-JUDGE COURT WAS REQUIRED.  MOREOVER, IF THIS IS SO,
APPELLEE URGES THIS COURT HAS NO JURISDICTION OF THE APPEAL, AND THE
APPEAL MUST BE DISMISSED.  /10/ 

APPELLEE BASES THIS ARGUMENT ON OUR DECISIONS CONCERNING APPELLATE
JURISDICTION UNDER 28 U.S.C. SEC. 1253.  THAT SECTION ALLOWS A DIRECT
APPEAL TO THIS COURT "FROM AN ORDER GRANTING OR DENYING ... AN
INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION, SUIT OR
PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND DETERMINED
BY A DISTRICT COURT OF THREE JUDGES."  ON ITS FACE, THIS PROVISION
WOULD SEEM TO ALLOW A DIRECT APPEAL TO THIS COURT IF A SINGLE DISTRICT
JUDGE GRANTS OR DENIES AN INJUNCTION, WHEN UNDER 28 U.S.C. SEC. 2281 OR
SEC. 2282 THE CASE WAS "REQUIRED ... TO BE HEARD AND DETERMINED" BY A
THREE-JUDGE COURT.  THIS COURT HAS READ THE STATUTE, HOWEVER, AS
ALLOWING DIRECT APPEALS ONLY FROM "ORDERS ACTUALLY ENTERED BY THREE
JUDGE COURTS."  GONZALES V. AUTOMATIC EMPLYEES CREDIT UNION, SUPRA, AT
96 N. 14.  SEE STRATTON V. ST. LOUIS S.W.R. CO., 282 U.S. 10, 15 - 16
(1930).  AND WE HAVE HELD THAT, WHEN A SINGLE DISTICT JUDGE FAILS TO
CALL FOR THE CONVENTION OF A THREE-JUDGE COURT AND GOES ON TO DISPOSE
OF THE CASE, AN APPEAL LIES ONLY TO THE COURT OF APPEALS.  IDLEWILD BON
VOYAGE LIQUOR CORP. V. EPSTEIN, SUPRA; HICKS V. PLEASURE HOUSE, INC.,
404 U.S. 1, 3 (1971). 

APPELLANTS HERE, HOWEVER, PREMISE THIS COURT'S JURISDICTION ON 28
U.S.C. SEC. 1252, RATHER THAN SEC. 1253.  SECTION 1252 PROVIDES IN
PERTINENT PART: 

     " ANY PARTY MAY APPEAL TO THE SUPREME COURT FROM AN

  INTERLOCUTORY OR FINAL JUDGMENT, DECREE OR ORDER OF ANY COURT OF

  THE UNITED STATES ...HOLDING AN ACT OF CONGRESS UNCONSTITUTIONAL

  IN ANY CIVIL ACTION, SUIT, OR PROCEEDING TO WHICH THE UNITED

STATES OR ANY OF ITS AGENCIES, OR ANY OFFICER OR EMPLOYEE

  THEREOF, AS SUCH OFFICER OR EMPLOYEE, IS A PARTY." 

THE REQUISITES OF THIS PROVISION ARE MET IN THIS CASE.  THIS IS A CIVIL
ACTION; THE APPELLANT MILITARY AUTHORITIES ARE, OF COURSE, OFFICERS OF
THE UNITED STATES, ACTING IN THEIR OFFICIAL CAPACITIES; AND ART. 134 IS
AN " ACT OF CONGRESS."  IT MIGHT BE ARGUED THAT, IN DECIDING TO ISSUE
THE PRELIMINARY INJUNCTION, THE DISTRICT COURT MADE ONLY AN
INTERLOCUTORY DETERMINATION OF APPELLEE'S PROBABILITY OF SUCCESS ON THE
MERITS AND DID NOT FINALLY "HOLD" THE ARTICLE UNCONSTITUTIONAL.  BY ITS
TERMS, HOWEVER, SEC. 1252 APPLIES TO INTERLOCUTORY AS WELL AS FINAL
JUDGMENTS, DECREES, AND ORDERS, AND THIS COURT PREVIOUSLY HAS FOUND THE
INTERLOCUTORY DETERMINATION OF UNCONSTITUTIONALITY, AT LEAST IF, AS
HERE, THAT DETERMINATION FORMS THE NECESSARY PREDICATE TO THE GRANT OR
DENIAL OF PRELIMINARY EQUITABLE RELIEF.  FLEMING V. RHODES, 331 U.S.
100 (1947).  IN THIS CASE, AS IN UNITED STATES V. RAINES, 362 U.S. 17,
20 (1960), IT IS CLEAR THAT "THE BASIS OF THE DECISION BELOW IN FACT
WAS THAT THE ACT OF CONGRESS WAS UNCONSTITUTIONAL...."     IN HIS
MOTION TO DISMISS, APPELLEE ARGUED THAT SEC. 1252 SHOULD BE SUBJECT TO
THE LIMITATIONS PLACED ON DIRECT APPEALS TO THIS COURT UNDER SEC.
1253.  IN OTHER WORDS, SEC. 1252 SHOULD NOT BE READ AS ALLOWING A
DIRECT APPEAL FROM AN INJUNCTIVE ORDER ERRONEOUSLY ENTERED BY A SINGLE
DISTRICT JUDGE, AND INSTEAD APPEAL SHOULD BE ALLOWED ONLY WHEN THE
DISTRICT COURT ACTED WITHIN ITS JURISDICTION.  /11/ SUCH A GLOSS ON
SEC. 1252 PERHAPS WOULD BE "CONSONANT WITH THE OVERRIDING POLICY,
HISTORICALLY ENCOURAGED BY CONGRESS, OF MINIMIZING THE MANDATORY DOCKET
OF THIS COURT ...."  GONZALEZ V. AUTOMATIC EMPLOYEES CREDIT UNION,
SUPRA, AT 98.  WE THINK, HOWEVER, THAT IN SEC. 1252 CONGRESS
UNAMBIGOUSLY MANDATED AN EXCEPTION TO THIS POLICY IN THE NARROW
CIRCUMSTANCES THAT THE SECTION IDENTIFIES.  THE LANGUAGE OF THE STATUTE
SUFFICIENTLY DEMONSTRATES ITS PURPOSE:  TO AFFORD IMMEDIATE REVIEW IN
THIS COURT IN CIVIL ACTIONS TO WHICH THE UNITED STATES OR ITS OFFICERS
ARE PARTIES AND THUS WILL BE BOUND BY A HOLDING OF
UNCONSTITUTIONALITY.  THE PURPOSE OF SEC. 1252 IS TOO PLAIN TO ALLOW
CIRCUMVENTION, WHATEVER DOUBTS MAY BE ENTERTAINED ABOUT THE WISDOM OF
MANDATORY DIRECT REVIEW IN OTHER CIRCUMSTANCES.  OUR PREVIOUS CASES
HAVE RECOGNIZED THAT THIS COURT'S JURISDICTION UNDER SEC. 1252 IN NO
WAY DEPENDS ON WHETHER THE DISTRICT COURT HAD JURISDICTION.  ON THE
CONTRARY, AN APPEAL UNDER SEC. 1252 BRINGS BEFORE US, NOT ONLY THE
CONSTITUTIONAL QUESTION, BUT THE WHOLE CASE, E.G., UNITED STATES V.
RAINES, SUPRA, AT 27 N. 7; SEE 9 J. MORRE, FEDERAL PRACTICE 110.03 (5),
P. 96 (2D ED. 1973), INCLUDING THRESHOLD ISSUES OF SUBJECT MATTER
JURISDICTION, UNITED STATES V. AMERICAN FRIENDS SERVICE COMMITTEE, 419
U.S. 7, 12 N. 7 (1947), AND WHETHER A THRE -JUDGE COURT WAS REQUIRED,
FLEMMING V. NESTOR, 363 U.S. 603 (1960).  /12/  WE FOLLOW THESE CASES
AND HOLD THAT, WHETHER THE DISTRICT COURT DID OR DID NOT HAVE
JURISDICTION TO ACT, THIS CASE IS PROPERLY HERE UNDER SEC. 1252. 

        III 

PROPER DISPOSITION OF THE CASE DOES NOT REQUIRE EXTENDED
DISCUSSION.  APPELLANTS ARGUE THAT, IN FACT, DE CHAMPLAIN'S
CONSTITUTIONAL CLAIM WAS ALWAYS INSUBSTANTIAL.  THE COURTS OF APPEALS
DECISIONS IN LEVY V. PARKER AND AVRECH V. SECRETARY OF THE NAVY, WHICH
CONCLUDED THAT ART. 134 SUFFERED FROM UNCONSTITUIONAL VAGUENESS,
CONCERNED ONLY THE FIRST TWO CLAUSES OF THAT ARTICLE MAKING PUNISHABLE
"ALL DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND
DISCIPLINE IN THE ARMED FORCES" AND "ALL CONDUCT OF A NATURE TO BRING
DISCREDIT UPON THE ARMED FORCES."  DE CHAMPLAIN, HOWEVER, WAS CHARGED
UNDER THE ASSIMILATIVE CRIMES CLAUSE OF THE ARTICLE, AND WAS ACCUSED OF
HAVING COMMITTED SPECIFIC FEDERAL OFFENSES.  THUS, ANY POSSIBLE
VAGUENESS IN OTHER PARTS OF THE ARTICLE COULD NOT HAVE AFFECTED DE
CHAMPLAIN.  AT THIS POINT, HOWEVER, NO PURPOSE COULD BE SERVED BY OUR
DECIDING WHETHER, WHEN THE COMPLAINT WAS FILED, DE CHAMPLAIN'S
CONSTITUTIONAL CLAIM WAS OR WAS NOT SUBSTANTIAL.  UNDER OUR DECISIONS
IN LEVY AND AVRECH, DE CHAMPLAIN'S CLAIM IS, AS HE CONCEDED, /13/
CLEARLY INSUBSTANTIAL NOW AND MUST BE DISMISSED.  /14/ 

WE TURN, FINALLY, TO THE PORTION OF THE PRELIMINARY INJUNCTION
REQUIRING THE MILITARY AUTHORITIES TO ALLOW UNLIMITED ACCESS TO THE
ORIGINAL COURT-MARTIAL RECORD AND TO DOCUMENTS THAT WILL BE AT ISSUE AT
DE CHAMPLAIN'S COURT-MARTIAL.  SINCE THIS CLAIM IS INDEPENDENT OF THE
ART. 134 QUESTION AND UNRELATED TO THE VALIDITY AND INTERPRETATION OF
THAT ARTICLE OR TO ANY OTHER ACT OF CONGRESS, A THREE-JUDGE COURT WAS
NOT REQUIRED TO HEAR IT.  AS TO THIS CLAIM, HOWEVER, THE ONLY HARM DE
CHAMPLAIN CLAIMED IN SUPPORT OF HIS PRAYER FOR EQUITABLE RELIEF WAS
THAT, IF CONVICTED, HE MIGHT REMAIN INCARCERATED PENDING REVIEW WITHIN
THE MILITARY SYSTEM.  THUS, ACCORDING TO DE CHAMPLAIN, INTERVENTION IS
JUSTIFIED NOW TO ENSURE THAT HE RECEIVES A TRIAL FREE OF CONSTITUTIONAL
ERROR, AND TO AVOID THE POSSIBILITY THAT HE WILL BE INCARCERATED,
PENDING REVIEW, ON THE BASIS OF A CONVICTION THAT INEVITABLY WILL BE
INVALID.  BUT IF SUCH HARM WERE DEEMED SUFFICIENT TO WARRANT EQUITABLE
INTERFERENCE INTO PENDING COURT-MARTIAL PROCEEDINGS, ANY CONSTITUTIONAL
RULING AT THE COURT-MARTIAL PRESUMABLY WOULD BE SUBJECT TO IMMEDIATE
RELITIGATION IN FEDERAL DISTRICT COURTS, RESULTING IN DISRUPTION TO THE
COURT-MARTIAL AND CIRCUMVENTION OF THE MILITARY APPELLATE SYSTEM
PROVIDED BY CONGRESS. 

WE HOLD THAT RELIEF AS TO THE ACCESS CLAIM IS PRECLUDED SQUARELY BY
OUR HOLDING IN SCHLESINGER V. COUNCILMAN, 420 U.S., AT 758, THAT WHEN A
SERVICEMEN CHARGED WITH CRIMES BY MILITARY AUTHORITIES CAN SHOW NO HARM
OTHER THAN THAT ATTENDANT TO RESOLUTION OF HIS CASE IN THE MILITARY
COURT SYSTEM, THE FEDERAL DISTRICT COURTS MUST REFRAIN FROM
INTERVENTION."  THE "UNLIMITED ACCESS" ASPECT OF DE CHAMPLAIN'S SUIT
THEREFORE MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED. 

                    VACATED AND REMANDED. 

/1/ THE CHIEF OF STAFF, DEPARTMENT OF THE AIR FORCE, THE JUDGE
ADVOCATE GENERAL OF THE AIR FORCE, AND THE FOLLOWING OFFICERS STATIONED
AT RICHARDS-GEBAUR AIR FORCE BASE, MISSOURI:  COLONEL HEWITT E.
LOVELACE, JR., THE CONVENING AUTHORITY; MAJOR FORREST W. THOMAS, STAFF
JUDGE ADVOCATE; AND COLONEL RUSSELL A. STANLEY, PRESIDING MILITARY
JUDGE. 

/2/ SEE UNITED STATES V. FRANTZ, 2 U.S.C.M.A. 161, 7 C.M.R. 37
(1953).  THE FULL TEST OF THE ARTICLE PROVIDES: 

" THOUGH NOT SPECIFICALLY MENTIONED IN THIS CHAPTER, ALL DISORDERS
AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED
FORCES, ALL CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE ARMED
FORCES, AND CRIMES AND OFFENSES NOT CAPITAL, OF WHICH PERSONS SUBJECT
TO THIS CHAPTER MAY BE GUILTY, SHALL BE TAKEN COGNIZANCE OF BY A
GENERAL, SPECIAL, OR SUMMARY COURT-MARTIAL, ACCORDING TO THE NATURE AND
DEGREE OF THE OFFENSE, AND SHALL BE PUNISHED AT THE DISCRETION OF THAT
COURT." 

/3/ 46 C.M.R. 784 (1972). 

/4/ 22 U.S.C.M.A. 150, 46 C.M.R. 150 (1973). 

/5/ DE CHAMPLAIN V. UNITED STATES, 22 U.S.C.M.A. 211, 46 C.M.R. 211
(1973); DE CHAMPLAIN V. UNITED STATES, 22 U.S.C.M.A. 656, 46 C.M.R.
1329 (1973); DE CHAMPLAIN V. MC LUCAS, 22 U.S.C.M.A. 462, 47 C.M.R. 552
(1973). 

/6/ ID., AT 462; 47 C.M.R., AT 552. 

/7/ THE DISTRICT COURT ALSO OBSERVED THAT IN UNITED STATES V. UNRUE,
22 U.S.C.M.A. 654 (1973), THE COURT OF MILITARY APPEALS DECLINED TO
FOLLOW THE DECISION OF THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT IN AVRECH V. SECRETARY OF THE NAVY, 155 U.S. APP. D.C.
352, 477 F.2D 1237 (1973).  THE DISTRICT COURT STATED THAT "(IT SIMPLY
OFFENDS BASIC NOTIONS OF FAIRNESS TO REQUIRE PLAINTIFF TO ENDURE A
POSSIBLE LENGTHY COURT MARTIAL AND FURTHER EXPECT THAT APPELLATE RELIEF
BE SOUGHT IN A TRIBUNAL WHICH HAS CLEARLY AND SUMMARILY REJECTED THE
CLAIMS ASSERTED."  367 F.SUPP.  1291, 1295 (DC 1973). 

/8/ FOLLOWING THE DISTRICT COURT'S DECISION, THE AIR FORCE
AUTHORIZED TWO CONSULTANTS SELECTED BY DE CHAMPLAIN'S COUNSEL TO HAVE
ACCESS TO THE CLASSIFIED MATERIALS THAT WILL BE IN ISSUE AT THE COURT
MARTIAL, SUBJECT TO THE SAME RESTRICTIONS IMPOSED ON CIVILIAN COUNSEL. 

/9/ UTICA MUTUAL INSURANCE CO. V. VINCENT, 375 F.2D 129, 131 N. 1
(CA2) (FRIENDLY, J.), CERT. DENIED, 389 U.S. 839 (1967).  OUR
DESCRIPTION OF APPELLEE'S ARGUMENT, OF COURSE, DOES NOT INTIMATE ANY
APPROVAL OF THE RADICAL EXPANSION OF BAILEY THAT IT APPEARS TO
REPRESENT. 

/10/ THERE IS NO QUESTION THAT OUR APPELLATE JURISDICTION AS TO THE
ACCESS ISSUE DEPENDS ENTIRELY ON WHETHER AN APPEAL PROPERLY LIES AS TO
THE ART. 134 ISSUE. 

/11/ APPELLEE'S COUNSEL VIGOROUSLY ARGUED THIS POSITION BOTH IN HIS
MOTION TO DISMISS AND BRIEF.  AT ORAL ARGUMENT BEFORE THIS COURT,
HOWEVER, COUNSEL RECEDED FROM THIS POSITION AND NOW AGREES THAT THE
APPEAL PROPERLY WAS TAKEN UNDER SEC. 1252.  TR. OF ORAL ARG. 17. 

/12/ AS NESTOR MAKES CLEAR, IF WE WERE TO CONCLUDE THAT SEC. 2282
REQUIRED A THREE-JUDGE COURT, THE PROPER COURSE WOULD BE TO VACATE THE
JUDGMENT BELOW AND REMAND WITH DIRECTIONS THAT A THREE-JUDGE COURT BE
CONVENED.  363 U.S., AT 606 - 607. 

/13/ BRIEF FOR APPELLEE 21. 

/14/ BECAUSE OF THIS DISPOSITION OF THE MATTER, THERE IS NO OCCASION
HERE TO DECIDE WHETHER, IF THE UNCONSTITUTIONALITY OF ART. 134 HAD BEEN
ESTABLISHED CONCLUSIVELY, AS THE DISTRICT COURT APPARENTLY BELIEVED,
THAT WOULD HAVE JUSTIFIED AN EXCEPTION TO THE RULE GENERALLY BARRING
FEDERAL COURT INTERVENTION INTO PENDING COURT-MARTIAL PROCEEDINGS.  CF.
YOUNGER V. HARRIS, 401 U.S. 37, 53 - 54 (1971). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN THE JUDGMENT. 

ALTHOUGH I CONCUR IN THE JUDGMENT, I WOULD DIRECT DISMISSAL OF DE
CHAMPLAIN'S SUIT, NOT AS THE COURT DOES ON THE GROUND THAT "THE FEDERAL
DISTRICT COURTS MUST REFRAIN FROM INTERVENTION," BUT BECAUSE DE
CHAMPLAIN MAKES NO CLAIM DENYING THE RIGHT OF THE MILITARY TO TRY HIM
AT ALL.  THEREFORE, HIS CLAIM OF RIGHT OF ACCESS TO AND USE OF
CLASSIFIED DOCUMENTS IS PROPERLY TO BE PRESENTED TO THE MILITARY
TRIBUNALS.  SEE MY CONCURRING AND DISSENTING OPINION IN SCHLESINGER V.
COUNCILMAN, 420 U.S. 738, 762 (1975). 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEF WERE ASSISTANT ATTORNEY GENERAL HILLS, LEONARD SCHAITMAN, AND
ANTHONY J. STEINMEYER. 

LEONARD B. BOUDIN ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS DAVID REIN. 

MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION
AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :
























SCHLESINGER V. COUNCILMAN, 420 U.S. 738 


       SCHLESINGER, SECRETARY OF DEFENSE, ET AL. V. COUNCILMAN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 73 - 662.  ARGUED DECEMBER 10, 1974--DECIDED MARCH 25,

 U975; 481 F.2D 613, REVERSED. 


 AFTER COURT-MARTIAL CHARGES WERE PREFERRED AGAINST RESPONDENT ARMY
CAPTAIN FOR THE SALE,

  TRANSFER, AND POSSESSION OF MARIHUANA, HE BROUGHT SUIT IN FEDERAL
DISTRICT COURT TO ENJOIN

  PETITIONER MILITARY AUTHORITIES FROM PROCEEDING WITH THE COURT
MARTIAL.  THE DISTRICT COURT

  GRANTED A PERMANENT INJUNCTION, AND THE COURT OF APPEALS
AFFIRMED, ON THE GROUND THAT THE

  OFFENSES CHARGED WERE NOT "SERVICE CONNECTED" AND HENCE WERE NOT
WITHIN COURT-MARTIAL

  JURISDICITON.  PETITIONERS CONTEND IN THIS COURT (1) THAT ANY
FEDERAL-QUESTION JURISDICTION

  THAT THE DISTRICT COURT MIGHT HAVE HAD UNDER 28 U.S.C. SEC. 1331
HAD BEEN REMOVED BY ART. 76

  OF THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ), WHICH PROVIDES
THAT COURT-MARTIAL PROCEEDINGS

  "ARE FINAL AND CONCLUSIVE" AND THAT "ALL ACTION TAKEN PURSUANT TO
THOSE PROCEEDINGS (IS)

BINDING UPON ALL . . . COURTS . . . OF THE UNITED STATES," AND (2)
THAT THE DISTRICT COURT

  IMPROPERLY INTERVENED IN A PENDING COURT-MARTIAL PROCEEDING. 
HELD: 

     1.  ARTICLE 76 DOES NOT STAND AS A JURISDICITONAL BAR TO

  RESPONDENT'S SUIT, AND THE DISTRICT COURT HAD SUBJECT-MATTER

  JURISDICTION UNDER 28 U.S.C. SEC. 1331, ASSUMING THE REQUISITE

 JURISDICITONAL AMOUNT.  PP. 744 - 753. 

     (A) THE GENERAL RULE THAT "THE ACTS OF A COURT MARTIAL, WITHIN

  THE SCOPE OF ITS JURISDICITON AND DUTY, CANNOT BE CONTROLLED OR

  REVIEWED IN THE CIVIL COURTS, BY WRIT OF PROHIBITION OR

  OTHERWISE," SMITH V. WHITNEY, 116 U.S. 167, 177, IS SUBJECT TO

  ITS OWN QUALIFICATION THAT THE COURT-MARTIAL'S ACTS BE "WITHIN

  THE SCOPE OF ITS JURISDICITON AND DUTY," AND HENCE COLLATERAL

  RELIEF FROM THE CONSEQUENCES OF A COURT-MARTIAL JUDGMENT IS NOT

  BARRED IF THE JUDGMENT WAS VOID.  PP. 746 - 748. 

     (B) THE FINALITY CLAUSE OF ART. 76 DOES NO MORE THAN DESCRIBE

  THE TERMINAL POINT FOR PROCEEDINGS WITHIN THE COURT-MARTIAL

  SYSTEM, GUSIK V. SCHILDER, 340 U.S. 128, AND THE LEGISLATIVE

  HISTORY OF THE ARTICLE DOES NOT SUPPORT A CONCLUSION THAT IT WAS

  INTENDED TO CONFINE COLLATERAL ATTACK ON COURT-MARTIAL

  PROCEEDINGS IN ART. III COURTS EXCLUSIVELY TO HABEAS CORPUS.  PP.

748 - 753. 

     2.  WHEN A SERVICEMAN CHARGED WITH CRIMES BY MILITARY

  AUTHORITIES CAN SHOW NO HARM OTHER THAN THAT ATTENDANT TO

  RESOLUTION OF HIS CASE IN THE MILITARY COURT SYSTEM, THE FEDERAL

  DISTRICT COURTS MUST REFRAIN FROM INTERVENTION, BY WAY OF

  INJUNCTION OR OTHERWISE.  THERE IS NOTHING IN THE CIRCUMSTANCES

  OF THIS CASE TO OUTWEIGH THE STRONG CONSIDERATIONS FAVORING

  EXHAUSTION OF REMEDIES WITHIN THE MILITARY COURT SYSTEM OR TO

  WARRANT INTRUDING ON THE INTEGRITY OF MILITARY COURT PROCESSES,

  WHICH WERE ENACTED BY CONGRESS IN THE UCMJ IN AN ATTEMPT TO

BALANCE THE UNIQUE NECESSITIES OF THE MILITARY SYSTEM AGAINST THE

  EQUALLY SIGNIFICANT INTEREST OF ENSURING FAIRNESS TO SERVICEMENT

  CHARGED WITH MILITARY OFFENSES.  PP. 753 - 760. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  BURGER,

  C.J., FILED A STATEMENT CONCURRING IN THE JUDGMENT, POST, P.

  761.  BRENNAN, J., FILED AN OPINION CONCURRING IN PART AND

  DISSENTING IN PART, IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED,

  POST, P. 762. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

ON MARCH 27, 1972, COURT-MARTIAL CHARGES WERE PREFERRED AGAINST
RESPONDENT BRUCE R. COUNCILMAN, AN ARMY CAPTAIN ON ACTIVE DUTY AT FORT
SILL, OKLAHOMA.  THE CHARGES ALLEGED THAT CAPTAIN COUNCILMAN HAD
WRONGFULLY SOLD, TRANSFERRED, AND POSSESSED MARIHUANA.  ON JULY 6,
1972, THE DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
PERMANENTLY ENJOINED PETITIONERS, THE SECRETARIES OF DEFENSE AND OF THE
ARMY AND THE COMMANDING GENERAL AND STAFF JUDGE ADVOCATE OF FORT SILL,
FROM PROCEEDING WITH CAPTAIN COUNCILMAN'S IMPENDING COURT-MARTIAL.  ON
APPEAL, THE COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED, HOLDING
THAT THE OFFENSES WIHT WHICH CAPTAIN COUNCILMAN HAD BEEN CHARGED WERE
NOT "SERVICE CONNECTED" AND THEREFORE NOT WITHIN THE MILITARY COURT
MARTIAL JURISDICITON.  481 F. 2D 613 (1973). 

THE JUDGMENTS OF THE DISTRICT COURT AND THE COURT OF APPEALS WERE
PREDICATED ON CERTAIN ASSUMPTIONS, NOT HITHERTO EXAMINED BY THIS COURT,
/1/ CONCERNING THE PROPER RELATIONSHIP BETWEEN THE MILITARY JUSTICE
SYSTEM ESTABLISHED BY CONGRESS AND THE POWERS AND RESPONSIBILITIES OF
ART. III COURTS.  IN THE VIEW WE TAKE OF THE MATTER, THE CASE PRESENTS
NO OCCASION FOR RESOLUTION OF THE MERITS OF COUNCILMAN'S "SERVICE
CONNECTION" CLAIM.  ALTHOUGH THE DISTRICT COURT MAY HAVE HAD SUBJECT
MATTER JURISDICITON, WE THINK THAT THE BALANCE OF FACTORS GOVERNING
EXERCISE OF EQUITABLE JURISDICITON BY FEDERAL COURTS NORMALLY WEIGHS
AGAINST INTERVENTION, BY INJUNCTION OR OTHERWISE, IN PENDING COURT
MARTIAL PROCEEDINGS.  WE SEE NOTHING IN THE CIRCUMSTANCES OF THIS CASE
THAT ALTERS THIS GENERAL EQUITABLE BALANCE.  ACCORDINGLY, WE REVERSE. 

I 

THE PARTIES IN THE DISTRICT COURT STIPULATED THE RELEVANT FACTS. 
/2/ THEY NEED ONLY BE SUMMARIZED HERE.  THE ARMY'S CRIMINAL
INVESTIGATION DETACHMENT AT FORT SILL RECEIVED INFORMATION FROM A
CONFICENTIAL INFORMANT THAT COUNCILMAN WAS USING MARIHUANA AT HIS OFF
POST APARTMENT.  THE DETACHMENT ARRANGED TO HAVE COUNCILMAN INVITED TO
AN OFF-POST PARTY, WHERE HE WAS INTRODUCED TO SPECIALIST FOUR GLENN D.
SKAGGS, AN ENLISTED MAN WORKING AS A DETACHMENT UNDERCOVER AGENT. 
SKAGGS, WHO USED THE NAME DANNY DREES IN HIS UNDERCOVER ACTIVITIES, WAS
IDENTIFIED AS AN ENLISTED CLERK-TYPIST AT THE FORT SILL ARMY TRAINING
CENTER.  SHORTLY AFTER THEIR INITIAL MEETING, COUNCILMAN ALLEGEDLY
TRANSFERRED TO SKAGGS SMALL QUANTITIES OF MARIHUANA, ONCE BY SALE AND
ONCE BY GIFT.  ON BOTH OCCASIONS, COUNCILMAN AND SKAGGS WERE OFF POST
AND NOT IN UNIFORM.  COUNCILMAN WAS OFF DUTY AND, TO ALL APPEARANCES,
SKAGGS WAS OFF DUTY AS WELL.  THEREAFTER, BASED ON SKAGGS'
INVESTIGATINS, COUNCILMAN WAS APPREHENDED BY CIVILIAN AUTHORITIES, WHO
SEARCHED HIS APARTMENT AND DISCOVERED ADDITIONAL QUANTITIES OF
MARIHUANA.  COUNCILMAN LATER WAS REMANDED TO MILITARY AUTHORITIES.  HE
WAS CHARGED WITH HAVING VIOLATED ART. 134 OF THE UNIFORM CODE OF
MILITARY JUSTICE /3/ BY WRONGFULLY SELLING, TRANSFERRING AND POSSESSING
MARIHUANA.  FOLLOWING AN INVESTIGATORY HEARING, /4/ THE CHARGES WERE
REFERRED TO A GENERAL COURT-MARTIAL FOR TRIAL. 

AT A PRELIMINARY HEARING HELD ON JUNE 27, 1972, COUNCILMAN,
REPRESENTED BY COUNSEL, MOVED TO DISMISS THE CHARGES, CONTENDING THAT
THE COURT-MARTIAL LACKED JURISDICITON UNDER THIS COURT'S DECISION IN O'
CALLAHAN V. PARKER, 395 U.S. 258 (1969), BECAUSE THE ALLEGED OFFENSES
WERE NOT "SERVICE CONNECTED."  AFTER AN EVIDENTIARY HEARING, THE
PRESIDING MILITARY JUDGE DENIED THE MOTION AND SCHEDULED THE COURT
MARTIAL TO BEGIN ON JULY 11.  ON JULY 5, COUNCILMAN BROUGHT THIS ACTION
IN THE DISTRICT COUT, MOVING FOR A TEMPORARY RESTRAINING ORDER AND A
PRELIMINARY INJUNCTION TO PREVENT HIS IMPENDING COURT-MARTIAL. 
COUNCILMAN CLAIMED THAT SINCE THE COURT-MARTIAL LACKED JURISDICTION
OVER THE ALLEGED OFFENSES, HE "(WOULD) SUFFER GREAT AND IRREPARABLE
DAMAGE IN THAT HE (MIGHT) BE DEPRIVED OF HIS LIBERTY WITHOUT DUE
PROCESS OF LAW, IF THE COURT-MARTIAL PROCEEDINGS ARE PERMITTED ON JULY
11 . . . ."  ON THE FOLLOWING DAY, AFTER A HEARING ON THE SERVICE
CONNECTION ISSUE, THE DISTRICT COURT PERMANENTLY ENJOINED THE MILITARY
AUTHORITIES FROM PROCEEDING WITH THE COURT-MARTIAL.  /5/ 

THE COURT OF APPEALS AFFIRMED, HOLDING THAT THE ALLEGED OFFENSES DID
NOT MEET THE TESTS FOR SERVICE CONNECTION SET FORTH IN O' CALLAHAN V.
PARKER, SUPRA, AND ELABORATED IN RELFORD V. U.S. DISCIPLINARY
COMMANDANT, 401 U.S. 355 (1971).  THE COURT FOUND THAT ONLY ONE OF THE
FACTORS ENUMERATED IN THOSE DECISIONS POINTED TO SERVICE CONNECTION IN
THIS CASE:  THE "FACTOR RELAT(2NG) TO THE RANK OF THE PERSONS INVOLVED
IN THE INCIDENT OR THE FACT THAT BOTH WERE SERVICEMEN."  481 F. 2D, AT
614.  THE COURT CONCLUDED THAT THIS FACTOR, STANDING ALONE, WAS
INSUFFICIENT TO SUSTAIN COURT-MARTIAL JURISDICTION AND THAT
COUNCILMAN'S POSSESSION AND DISTRIBUTION OF MARIHUANA "AFFECTED)
MILITARY DISCIPLINE NO MORE THAN COMMISSION OF ANY CRIME BY ANY
SERVICEMAN."  ID., AT 615. 

ON BEHALF OF THE MILITARY AUTHORITIES, THE SOLICITOR GENERAL FILED A
PETITION FOR A WRIT OF CERTIORARI ADDRESSED TO THE "SERVICE-CONNECTED"
OFFENSE ISSUE, /6/ AND NOTING THE EXISTENCE OF CONFLICTS ON THIS ISSUE
BETWEEN THE DECISION BELOW AND DECISIONS OF THE COURT OF MILITARY
APPEALS.  /7/ WE GRANTED THE PETITION, 414 U.S. 1111(1973), /8/ AND
ALTHOUGH NORMALLY WE DO NOT CONSIDER QUESTIONS RAISED NEITHER BELOW NOR
IN THE PETITION, SEE UNITED STATES V. RICHARDSON, 418 U.S. 166, 206
(1974) (STEWART, J., DISSENTING), THE JURISDICTIONAL AND EQUITY ISSUES
NECESSARILY IMPLICIT IN THIS CASE SEEMED SUFFICIENTLY IMPORTANT TO
RAISE THEM SUA SPONTE.  SEE, E.G., YOUNGER V. HARRIS, 401 U.S. 37, 40
(1971); DUIGNAN V. UNITED STATES, 274 U.S. 195, 200 (1927), AND CASES
THERE CITED.  WE THEREFORE REQUESTED SUPPLEMENTAL BRIEFS "ON THE ISSUES
OF (1) THE JURISDICITON OF THE DISTRICT COURT, (2) EXHAUSTION OF
REMEDIES, AND (3) THE PROPRIETY OF A FEDERAL DISTRICT COURT ENJOINING A
PENDING COURT-MARTIAL PROCEEDING."  SINCE OUR RESOLUTION OF THESE
ISSUES DISPOSES OF THE CASE, WE EXPRESS NO OPINION ON THE "SERVICE
CONNECTION" QUESTION. 

 II 

PRESUMABLY THE DISTRICT COURT FOUND JURISDICTION UNDER 28 U.S.C.
SEC. 1331, /9/ WHICH GRANTS SUBJECT-MATTER JURISDICTION OF CIVIL
ACTIONS WHERE THE MATTER IN CONTROVERSY EXCEEDS $10,000 "AND ARISES
UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES."  NO
CONTENTION IS MADE THAT RESPONDENT'S CLAIM FAILS TO ASSERT A CASE
ARISING UNDER THE CONSTITUTION.  SEE O' CALLAHAN V. PARKER, SUPRA.
PETITIONERS ARGUE, HOWEVER, THAT EVEN IF THE DISTRICT COURT MIGHT
OTHERWISE HAVE HAD JURISDICTION UNDER SEC. 1331, THIS WAS REMOVED BY
ENACTMENT OF ART. 76 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C.
SEC. 876.  THAT ARTICLE, SET FORTH IN THE MARGIN, /10/ PROVIDES IN
PERTINENT PART THAT "THE PROCEEDINGS, FINDINGS, AND SENTENCES OF COURTS
MARTIAL AS APPROVED, REVIEWED, OR AFFIRMED AS REQUIRED BY THIS CHAPTER
. . . ARE FINAL AND CONCLUSIVE" AND "ALL ACTION TAKEN PURSUANT TO THOSE
PROCEEDINGS (IS) BINDING UPON ALL . . .COURTS . . . OF THE UNITED
STATES.  . . ." 

PETITIONERS RELY ON THE LEGISLATIVE HISTORY OF ART. 76 AS
DEMONSTRATING THAT CONGRESS INTENDED TO LIMIT COLLATERAL ATTACK IN
CIVILIAN COURTS ON COURT-MARTIAL CONVICTIONS TO PROCEEDINGS FOR WRITS
OF HABEAS CORPUS UNDER 28 U.S.C. SEC. 2241.  IF THIS IS SO, PETITIONERS
FURTHER ARGUE THAT CONGRESS MUST HAVE INTENDED TO REMOVE ANY
JURISDICTION THE CIVILIAN COURTS MIGHT OTHERWISE HAVE HAD TO INTERVENE
BEFORE THE COURT-MARTIAL HAS TAKEN PLACE.  IN SHORT, IT IS ARGUED THAT
WITH RESPECT TO COURT-MARTIAL PROCEEDINGS AND CONVICTIONS, ART. 76 ACTS
AS A PRO TANTO REPEALER OF SEC. 1331 AND ALL OTHER STATUTES, WITH THE
EXCEPTION OF SEC. 2241, CONFERRING SUBJECT-MATTER JURISDICITON ON ART.
III COURTS. 

WE HAVE DECLINED TO DECIDE THIS QUESTION IN THE PAST.  /11/ WE NOW
CONCLUDE THAT ALTHOUGH THE ARTICLE IS HIGHLY RELEVANT TO THE PROPER
SCOPE OF COLLATERAL ATTACK ON COURT-MARTIAL CONVICTIONS AND TO THE
PROPRIETY OF EQUITABLE INTERVENTION INTO PENDING COURT-MARTIAL
PROCEEDINGS, IT DOES NOT HAVE THE JURISDICTIONAL CONSEQUENCES
PETITIONERS ASCRIBE TO IT. 

THIS COURT REPEATEDLY HAS RECOGNIZED THAT, OF NECESSITY, "(M)
ILITARY LAW . . . IS A JURISPRUDENCE WHICH EXISTS SEPARATE AND APART
FROM THE LAW WHICH GOVERNS IN OUR FEDERAL JUDICIAL ESTABLISHMENT." 
BURNS V. WILSON, 346 U.S. 137, 140 (1953); PARKER V. LEVY, 417 U.S.
733, 744 (1974).  CONGRESS IS EMPOWERED UNDER ART. I, SEC. 8, TO "MAKE
RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES." 
IT HAS, HOWEVER, NEVER DEEMED IT APPROPRIATE TO CONFER ON THIS COURT
"APPELLATE JURISDICITON TO SUPERVISE THE ADMINISTRATION OF CRIMINAL
JUSTICE IN TO MILITARY."  NOYD V. BOND, 395 U.S. 683, 694 (1969).  SEE
EX PARTE VALLANDIGHAM, 1 WALL.  243, 249 - 253 (1964).  /12/ NOR HAS
CONGRESS CONFERRED ON ANY ART. III COURT JURISDICITON DIRECTLY TO
REVIEW COURT-MARTIAL DETERMINATIONS.  THE VALID, FINAL JUDGMENTS OF
MILITARY COURTS, LIKE THOSE OF ANY COURT OF COMPETENT JURISDICTION NOT
SUBJECT TO DIRECT REVIEW FOR ERRORS OF FACT OR LAW, HAVE RES JUDICATA
EFFECT AND PRECLUDE FURTHER LITIGATION OF THE MERITS.  SEE, E.G., 1 B
J. MOORE, FEDERAL PRACTICE 0.405 (4.-1), PP. 634 - 637 (2D ED. 1974). 
THIS COURT THEREFORE HAS ADHERED UNIFORMLY TO "THE GENERAL RULE THAT
THE ACTS OF A COURT MARTIAL, WITHIN THE SCOPE OF ITS JURISDICITON AND
DUTY, CANNOT BE CONTROLLED OR REVIEWED IN THE CIVIL COURTS, BY WRIT OF
PROHIBITION OR OTHERWISE."  SMITH V. WHITNEY, 116 U.S. 167, 177
(1886).  SEE HIATT V. BROWN, 339 U.S. 103, 111 (1950); IN RE GRIMLEY,
137 U.S. 147, 150 (1890). 

BUT THIS GENERAL RULE CARRIES WITH IT ITS OWN QUALIFICATION--THAT
THE COURT-MARTIAL'S ACTS BE "WITHIN THE SCOPE OF ITS JURISDICITON AND
DUTY."  COLLATERAL ATTACK SEEKS, AS A NECESSARY INCIDENT TO RELIEF
OTHERWISE WITHIN THE COURT'S POWER TO GRANT, A DECLARATION THAT A
JUDGMENT IS VOID.  /13/  A JUDGMENT, HOWEVER, IS NOT RENDERED VOID
MERELY BY ERROR, NOR DOES THE GRANTING OF COLLATERAL RELIEF NECESSARILY
MEAN THAT THE JUDGMENT IS INVALID FOR ALL PURPOSES.  /14/ ON THE
CONTRARY, IT MEANS ONLY THAT FOR PURPOSES OF THE MATTER AT HAND THE
JUDGMENT MUST BE DEEMED WITHOUT RES JUDICATA EFFECT:  BECAUSE OF LACK
OF JURISDICITON OR SOME OTHER EQUALLY FUNDAMENTAL DEFECT, THE JUDGMENT
NEITHER JUSTIFIES NOR BARS RELIEF FROM ITS CONSEQUENCES. 

THESE SETTLED PRINCIPLES OF THE LAW OF JUDGMENTS HAVE BEEN HELD FROM
THE START FULLY APPLICABLE TO COURT-MARTIAL DETERMINATIONS.  /15/
HABEAS CORPUS PROCEEDINGS HAVE BEEN AND REMAIN BY FAR THE MOST COMMON
FORM OF COLLATERAL ATTACK ON COURT-MARTIAL JUDGMENTS; BUT HISTORICALLY
THEY HAVE NOT BEEN THE EXCLUSIVE MEANS OF COLLATERAL ATTACK.  NOR WERE
THEY THE EARLIEST.  IN WISE V. WITHERS, 3 CRANCH 331 (1806), AN ACTION
FOR TRESPASS AGAINST A COLLECTOR OF COURT-MARTIAL FINES, THE COURT HELD
THAT THE PLAINTIFF, A FEDERAL OFFICIAL, WAS EXEMPT FROM MILITARY DUTY
AND THAT THE COURT-MARTIAL LACKED JURISDICITON.  THE COURT CONCLUDED
THAT "2T IS A PRINCIPLE, THAT A DECISION OF SUCH A TRIBUNAL, IN A CASE
CLEARLY WITHOUT ITS JURISDICITON, CANNOT PROTECT THE OFFICER WHO
EXECUTES IT."  ID., AT 337.  SEE DYNES V. HOOVER, 20 HOW.  65 (1857);
MARTIN V. MOTT, 12 WHEAT.  19 (1827).  /16/ AT THE END OF THE LAST
CENTURY, ON THE BASIS OF THE SAME PRINCIPLE THE COURT APPROVED
COLLATERAL ATTACK IN THE FORM OF BACKPAY SUITS IN THE COURT OF CLAIMS. 
E.G., RUNKLE V. UNITED STATES, 122 U.S. 543 (1887).  THESE CASES, AND
THE EARLY MILITARY HABEAS CASES, /17/ DEMONSTRATE A UNIFORM APPROACH TO
THE PROBLEM OF COLLATERAL RELIEF FROM THE CONSEQUENCES OF COURT-MARTIAL
JUDGMENTS:  SUCH RELIEF WAS BARRED UNLESS IT APPEARED THAT THE
JUDGMENTS WERE VOID.  /18/

        B 

PETITIONERS ARGUE THAT ART. 76 EFFECTED A CHANGE IN THIS REGIME, NOT
SOLELY AS A MATTER OF THE LAW OF JUDGMENTS, BUT AS A MATTER OF
JURISDICITON.  THIS CASE, OF COURSE, DOES NOT CONCERN A COLLATERAL
ATTACK ON A COURT-MARTIAL JUDGMENT, AT LEAST IN THE NORMAL SENSE, SINCE
THERE WAS NO JUDGMENT TO ATTACK.  INSTEAD, COUNCILMAN, ALLEGING THE
LIKELIHOOD OF IRREPARABLE INJURY, SOUGHT INJUNCTIVE RELIEF FROM AN
IMPENDING COURT-MARTIAL.  HE ASSERTED, AS THE BASIS FOR SUCH RELIEF,
THAT ANY JUDGMENT ENTERED BY THE COURT-MARTIAL WOULD BE VOID AND HENCE
SUBJECT TO COLLATERAL IMPEACHMENT, AT LEAST BY WAY OF HABEAS.  E.G., O'
CALLAHAN V. PARKER, SUPRA.  THUS, THE LEGAL BASIS ON WHICH COUNCILMAN
RESTED HIS CLAIM FOR EQUITABLE RELIEF DID NOT GO BEYOND RECOGNIZED
GROUNDS FOR COLLATERAL ATTACK.  /19/ IN EFFECT, COUNCILMAN IS
ATTEMPTING TO ATTACK COLLATERALLY THE MILITARY AUTHORITIES' DECISION TO
CONVENE THE COURT-MARTIAL AND THE REFUSAL OF THE MILITARY JUDGE TO
DISMISS THE CHARGES.  ARTICLE 76, HOWEVER, GIVES BINDING EFFECT NOT
ONLY TO COURT-MARTIAL JUDGMENTS, BUT ALSO TO "ALL ACTION TAKEN PURSUANT
TO THOSE PROCEEDINGS.  . . ."  WE THEREFORE AGREE WITH PETITIONERS
THAT, AS A JURISDICITONAL MATTER, COUNCILMAN'S SUIT STANDS ON PRECISELY
THE SAME FOOTING AS SUITS SEEKING POSSIBLE POST-JUDGMENT FORMS OF
COLLATERAL RELIEF.  IF ART. 76 WAS INTENDED TO BAR SUBJECT-MATTER
JURISDICTION IN SUITS FOR COLLATERAL RELIEF OTHER THAN BY WAY OF
HABEAS, IT ALSO MUST REMOVE SEC. 1331 JURISDICTION PRIOR TO ANY COURT
MARTIAL JUDGMENT.     ARTICLE 76, HOWEVER, DOES NOT EXPRESSLY EFFECT
ANY CHANGE IN THE SUBJECT-MATTER JURISDICTION OF ART. III COURTS.  ITS
LANGUAGE ONLY DEFINES THE POINT AT WHICH MILITARY COURT JUDGMENTS
BECOME FINAL AND REQUIRES THAT THEY BE GIVEN RES JUDICATA EFFECT.  BUT,
AS THE COURT HAS RECOGNIZED IN THE PAST, THERE IS NO NECESSARY
INCONSISTENCY BETWEEN THIS AND THE STANDARD RULE THAT VOID JUDGMENTS,
ALTHOUGH FINAL FOR PURPOSES OF DIRECT REVIEW, MAY BE IMPEACHED
COLLATERALLY IN SUITS OTHERWISE WITHIN A COURT'S SUBJECT-MATTER
JURISDICTION.  /20/ IN GUSIK V. SCHILDER, 340 U.S. 128 (1950), THIS
COURT WAS REQUIRED TO DETERMINE THE EFFECT ON MILITARY HABEAS
PROCEEDINGS OF ART. 53 OF THE ARTICLES OF WAR, THE IMMEDIATE STATUTORY
PREDECESSOR OF THE PRESENT ART. 76, CONTAINING IDENTICAL FINALITY
LANGUAGE.  /21/  PETITIONER HAD ARGUED THAT ART. 53 DEPRIVED CIVILIAN
COURTS OF ALL JURISDICTION TO ENTERTAIN SUITS COLLATERALLY ATTACKING
MILITARY COURT JUDGMENTS, AND THUS WORKED AN UNCONSTITUTIONAL
SUSPENSION OF THE WRIT OF HABEAS CORPUS.  THE COURT DECLINED TO GIVE
THE ARTICLE THE SUGGESTED CONSTRUCTION: 

" WE READ THE FINALITY CLAUSE OF ARTICLE 53 AS DOING NO MORE THAN
DESCRIBING THE TERMINAL POINT FOR PROCEEDINGS WITHIN THE COURT-MARTIAL
SYSTEM.  IF CONGRESS HAD INTENDED TO DEPRIVE THE CIVIL COURTS OF THEIR
HABEAS CORPUS JURISDICTION, WHICH HAS BEEN EXERCISED FROM THE
BEGINNING, THE BREAK WITH HISTORY WOULD HAVE BEEN SO MARKED THAT WE
BELIEVE THE PURPOSE WOULD HAVE BEEN MADE PLAIN AND UNMISTAKABLE.  THE
FINALITY LANGUAGE SO ADEQUATELY SERVES THE MORE RESTRICTED PURPOSE THAT
WE WOULD HAVE TO GIVE A STRAINED CONSTRUCTION IN ORDER TO STIR THE
CONSTITUTIONAL ISSUE THAT IS TENDERED."  340 US., AT 132 - 133. 

PETITIONERS AGREE WITH GUSIK INSOFAR AS IT HOLDS THAT HABEAS CORPUS
REMAINS AVAILABLE DESPITE THE MANDATE OF ART. 76.  IT IS ARGUED,
HOWEVER, BOTH FROM THE LEGISLATIVE HISTORY OF ART. 76 ITSELF AND FROM
THE JUDGMENT IMPLICIT IN THE ESTABLISHMENT OF A COMPREHENSIVE SYSTEM OF
REVIEW WITHIN THE MILITARY, THAT CONGRESS INTENDED TO CONFINE
COLLATERAL ATTACK IN ART. III COURTS EXCLUSIVELY TO HABEAS CORPUS.  IN
DOING SO, IT IS SAID, CONGRESS WAS ACKNOWLEDGING THE SPECIAL
CONSTITUTIONAL STATUS OF THAT WRIT UNDER THE SUSPENSION CLAUSE, /22/ A
STATUS SHARED BY NO OTHER FORM OF COLLATERAL RELIEF.  PETITIONERS POINT
IN PARTICULAR TO STATEMENTS IN THE HOUSE AND SENATE COMMITTEE REPORTS
THAT "(SUBJECT ONLY TO A PETITION FOR A WRIT OF HABEAS CORPUS IN
FEDERAL COURT, (ART. 76) PROVIDES FOR THE FINALITY OF THE COURT-MARTIAL
PROCEEDINGS AND JUDGMENTS."  /23/  IN ADDITION, THE HOUSE COMMITTEE
REPORT EXPLAINED THAT THE COURT OF MILITARY APPEALS, ESTABLISHED BY THE
CODE, WAS INTENDED AS "THE COURT OF LAST RESORT FOR COURT-MARTIAL
CASES, EXCEPT FOR THE CONSTITUTIONAL RIGHT OF HABEAS CORPUS."  /24/ 

PETITIONERS' INTERPRETATION OF ART. 76, IF ITS FULL REACH WERE
ACCEPTED, NOT ONLY WOULD PREVENT SERVICEMEN FROM OBTAINING INJUNCTIONS
UNDER ANY CIRCUMSTANCES AGAINST PENDING COURT-MARTIAL PROCEEDINGS.  IT
ALSO WOULD PRECLUDE ANY COLLATERAL RELIEF IN ART. III COURTS, EVEN IF
THE COURT-MARTIAL LACKED JURISDICTION IN THE MOST TRADITIONAL SENSE,
UNLESS THE SERVICEMAN COULD SATISFY THE REQUIREMENTS OF HABEAS CORPUS
JURISDICTION.  AS POINTED OUT ABOVE, CERTAIN REMEDIES ALTERNATIVE TO
HABEAS, PARTICULARLY SUITS FOR BACKPAY, HISTORICALLY HAVE BEEN
AVAILABLE.  INDEED, THIS AVAILABILITY WAS REITERATED SHORTLY BEFORE
ENACTMENT OF THE CODE.  SEE SHAPIRO V. UNITED STATES, 107 CT. CL. 650,
69 F. SUPP. 205 (1947).  YET NOTHING IN ART. 76 DISTINGUISHES BETWEEN
HABEAS CORPUS AND OTHER REMEDIES ALSO CONSISTENT WITH WELL-ESTABLISHED
RULES GOVERNING COLLATERAL ATTACK.  IF CONGRESS INTENDED SUCH A
DISTINCTION, IT SELECTED SINGULARLY INAPT LANGUAGE TO EXPRESS IT. 

NOR DOES THE LEGISLATIVE HISTORY JUSTIFY AN INTERPRETATION OF THE
LANGUAGE SO AT ODDS WITH ITS CLEAR PURPORT.  AS WE HAVE HAD OCCASION
RECENTLY TO REPEAT, "REPEALS BY IMPLICATION ARE DISFAVORED," AND THIS
CANON OF CONSTRUCTION APPLIES WITH PARTICULAR FORCE WHEN THE ASSERTED
REPEALER WOULD REMOVE A REMEDY OTHERWISE AVAILABLE.  REGIONAL RAIL
REORGANIZATION ACT CASES, 419 U.S. 102, 133 - 136 (1974).  IT IS TRUE,
AS PETITIONERS URGE, THAT THE WRIT OF HABEAS CORPUS OCCUPIES A POSITION
UNIQUE IN OUR JURISPRUDENCE, THE CONSEQUENCE OF ITS HISTORICAL
IMPORTANCE AS THE ULTIMATE SAFEGUARD AGAINST UNJUSTIFIABLE DEPRIVATIONS
OF LIBERTY.  WE READ THE STATEMENTS ATTENDING CONGRESSIONAL
CONSIDERATION AS ADDRESSING THE PARTICULAR CONCERN THAT ART. 76 NOT BE
TAKEN AS AFFECTING THE AVAILABILITY OF HABEAS CORPUS, A CONCERN OF
SPECIAL SIGNIFICANCE BECAUSE OF THE VITAL INTERESTS THE WRIT PROTECTS
AND BECAUSE IT IS THE MOST COMMON MODE OF COLLATERAL RELIEF FROM COURT
MARTIAL CONVICTIONS.  BUT AN AFFIRMATIVE INTENT TO PRECLUDE ALL OTHER
FORMS OF COLLATERAL RELIEF, ON WHATEVER GROUND, CANNOT BE INFERRED FROM
THESE SCATTERED STATEMENTS IN THE LEGISLATIVE HISTORY.  RESTRAINT ON
LIBERTY, ALTHOUGH PERHAPS THE MOST IMMEDIATELY ONEROUS, IS NOT THE ONLY
SERIOUS CONSEQUENCE OF A COURT-MARTIAL CONVICTION.  SUCH CONVICTIONS
MAY RESULT, FOR EXAMPLE, IN DEPRIVATION OF PAY AND EARNED PROMOTION,
AND EVEN IN DISCHARGE OR DISMISSAL FROM THE SERVICE UNDER CONDITIONS
THAT CAN CAUSE LASTING, SERIOUS HARM IN CIVILIAN LIFE.  /25/ 

THIS IS NOT TO SAY, OF COURSE, THAT FOR EVERY SUCH CONSEQUENCE THERE
IS A REMEDY IN ART. III COURTS.  THAT DEPENDS ON WHETHER THE RELIEF IS
SOUGHT IN AN ACTION OTHERWISE WITHIN THE COURT'S SUBJECT-MATTER
JURISDICITON, ON A GROUND THAT RECOGNIZES THE DISTINCTION BETWEEN
DIRECT AND COLLATERAL ATTACK, AND IN A FORM THAT THE COURT IS ABLE WITH
PROPRIETY TO GRANT.  SEE PART III, INFRA.  WE ALSO EMPHASIZE THAT THE
GROUNDS UPON WHICH MILITARY JUDGMENTS MAY BE IMPEACHED COLLATERALLY ARE
NOT NECESSARILY INVARIABLE.  FOR EXAMPLE, GROUNDS OF IMPEACHMENT
COGNIZABLE IN HABEAS PROCEEDINGS MAY NOT BE SUFFICIENT TO WARRANT OTHER
FORMS OF COLLATERAL RELIEF.  LACKING A CLEAR STATEMENT OF CONGRESSIONAL
INTENT ONE WAY OR THE OTHER, THE QUESTION WHETHER A COURT-MARTIAL
JUDGMENT PROPERLY MAY BE DEEMED VOID--I.E., WITHOUT RES JUDICATA EFFECT
FOR PURPOSES OF THE MATTER AT HAND--MAY TURN ON THE NATURE OF THE
ALLEGED DEFECT, AND THE GRAVITY OF THE HARM FROM WHICH RELIEF IS
SOUGHT.  MOREOVER, BOTH FACTORS MUST BE ASSESSED IN LIGHT OF THE
DEFERENCE THAT SHOULD BE ACCORDED THE JUDGMENTS OF THE CAREFULLY
DESIGNED MILITARY JUSTICE SYSTEM ESTABLISHED BY CONGRESS. 

BUT WE ARE CONCERNED HERE ONLY WITH PETITIONERS' BROAD
JURISDICITONAL ARGUMENT, WHICH WE REJECT FOR THE REASONS STATED ABOVE. 
WE THEREFORE REITERATE THE CONSTRUCTION GIVEN THE ART. 76 LANGUAGE IN
GUISK AND ACCEPTED BY OTHER COURTS, INCLUDING THE COURT OF MILITARY
APPEALS, /26/ AND ACCORDINGLY HOLD THAT ART. 76 DOES NOT STAND AS A
JURISDICTIONAL BAR TO CAPTAIN COUNCILMAN'S SUIT. 

        III 

OUR HOLDING THAT THE DISTRICT COURT HAD SUBJECT-MATTER JURISDICTION,
ASSUMING THE REQUISITE JURISDICTIONAL AMOUNT, /27/ DOES NOT CARRY WITH
IT THE FURTHER CONCLUSION THAT THE DISTRICT COURT PROPERLY COULD REACH
THE MERITS OF COUNCILMAN'S CLAIM OR ENJOIN THE PETITIONERS FROM
PROCEEDING WITH THE IMPENDING COURT-MARTIAL.  THERE REMAINS THE
QUESTION OF EQUITABLE JURISDICTION, A QUESTION CONCERNED, NOT WITH
WHETHER THE CLAIM FALLS WITHIN THE LIMITED JURISDICTION CONFERRED ON
THE FEDERAL COURTS, BUT WITH WHETHER CONSISTENTLY WITH THE PRINCIPLES
GOVERNING EQUITABLE RELIEF THE COURT MAY EXERCISE ITS REMEDIAL POWERS. 
/28/ 

IN SUPPORT OF HIS PRAYER FOR AN INJUNCTION, COUNCILMAN CLAIMED THAT
HE WOULD INCUR "GREAT AND IRREPARABLE DAMAGE IN THAT HE (MIGHT) BE
DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW . . . ."  THE
PRESIDING MILITARY JUDGE HAD REFUSED TO DISMISS THE CHARGES AGAINST
COUNCILMAN, REJECTING THE ARGUMENT THAT THEY WERE NOT SERVICE CONNECTED
AND THAT THEREFORE THE COURT-MARTIAL LACKED JURISDICTION TO ACT ON
THEM.  THUS, WHEN THE DISTRICT COURT INTERVENED, THERE WAS NO QUESTION
THAT COUNCILMAN WOULD BE TRIED.  BUT WHETHER HE WOULD BE CONVICTED WAS
A MATTER ENTIRELY OF CONJECTURE.  AND EVEN IF ONE SUPPOSED THAT
COUNCILMAN'S SERVICE-CONNECTION CONTENTION ALMOST CERTAINLY WOULD BE
REJECTED ON ANY EVENTUAL MILITARY REVIEW, THERE WAS NO REASON TO
BELIEVE THAT HIS POSSIBLE CONVICTION INEVITABLY WOULD BE AFFIRMED. 

IT THEREFORE APPEARS THAT COUNCILMAN WAS "THREATENED WITH (NO)
INJURY OTHER THAN THAT INCIDENTAL TO EVERY CRIMINAL PROCEEDING BROUGHT
LAWFULLY AND IN GOOD FAITH."  DOUGLAS V. CITY OF JEANNETTE, 319 U.S.
157, 164 (1943).  OF COURSE, THERE IS INEVITABLE INJURY--OFTEN OF
SERIOUS PROPORTIONS--INCIDENT TO ANY CRIMINAL PROSECUTION.  BUT WHEN
THE FEDERAL EQUITY POWER IS SOUGHT TO BE INVOKED AGAINST STATE CRIMINAL
PROSECUTIONS, THIS COURT HAS HELD THAT "(CERTAIN TYPES OF INJURY, IN
PARTICULAR, THE COST, ANXIETY, AND INCONVENIENCE OF HAVING TO DEFEND
AGAINST A SINGLE CRIMINAL PROSECTION, (CAN) NOT BY THEMSELVES BE
CONSIDERED 'IRREPARABLE' IN THE SPECIAL LEGAL SENSE OF THAT TERM." 
YOUNGER V. HARRIS, 401 U.S., AT 46.  " THE MAXIM THAT EQUITY WILL NOT
ENJOIN A CRIMINAL PROSECUTION SUMMARIZES CENTURIES OF WEIGHTY
EXPERIENCE IN ANGLO-AMERICAN LAW."  STEFANELLI V. MINARD, 342 U.S. 117,
120 (1951).  THIS MAXIM OF EQUITABLE JURISDICITON ORIGINATED AS A
COROLLARY TO THE GENERAL SUBORDINATION OF EQUITABLE TO LEGAL REMEDIES,
WHICH IN TURN "MAY ORIGINALLY HAVE GROWN OUT OT CIRCUMSTANCES PRCULIAR
TO THE ENGLISH JUDICIAL SYSTEM . . . ."  YOUNGER V. HARRIS, SUPRA, AT
44.  /29/ THE HISTORY IS FAMILIAR ENOUGH.  BUT ANCIENT LINEAGE,
PARTICULARLY IF SPRUNG FROM CIRCUMSTANCES NO LONGER EXISTENT, NEITHER
ESTABLISHES THE ONCTEMPORARY UTILITY OF A RULE NOR NECESSARILY
JUSTIFIES THE HARM CAUSED BY DELAY IN THE VINDICATION OF INDIVIDUAL
RIGHTS. 

AS TO STATE CRIMINAL PROSECUTIONS, SUCH JUSTIFICATION HAS BEEN FOUND
TO RESIDE IN THE PECULIARLY COMPELLING DEMANDS OF FEDERALISM AND THE
"SPECIAL DELICACY OF THE ADJUSTMENT TO BE PRESERVED BETWEEN FEDERAL
EQUITABLE POWER AND STATE ADMINISTRATION OF ITS OWN LAW.  . . ." 
STEFANELLI V. MINARD, SUPRA, AT 120.  THE PRECISE CONTENT OF
CONSTITUTIONAL RIGHTS ALMOST INVARIABLY TURNS ON THE CONTEXT OF FACT
AND LAW IN WHICH THEY ARISE.  STATE COURTS ARE QUITE AS CAPABLE AS
FEDERAL COURTS OF DETERMINING THE FACTS, AND THEY ALONE CAN DEFINE AND
INTERPRET STATE LAW.  EQUALLY IMPORTANT, UNDER ART. VI OF THE
CONSTITUTION, STATE COURTS SHARE WITH FEDERAL COURTS AN EQUIVALENT
RESPONSIBILITY FOR THE ENFORCEMENT OF FEDERAL RIGHTS, A RESPONSIBILITY
ONE MUST EXPECT THEY WILL FULFILL.  THESE CONSIDERATIONS OF COMITY, THE
NECESSITY OF RESPECT FOR COORDINATE JUDICIAL SYSTEMS, HAVE LED THIS
COURT TO PRECLUDE EQUITABLE INTERVENTION INTO PENDING STATE CRIMINAL
PROCEEDINGS UNLESS THE HARM SOUGHT TO BE AVERTED IS "BOTH GREAT AND
IMMEDIATE," OF A KIND THAT "CANNOT BE ELIMINATED BY . . . DEFENSE
AGAINST A SINGLE CRIMINAL PROSECUTION."  FENNER V. BOYKIN, 271 U.S.
240, 243 (1926); YOUNGER V. HARRIS, SUPRA, AT 46.  SEE DOMBROWSKI V.
PFISTER, 380 U.S. 479 (1965).  PRECISELY THESE CONSIDERATIONS UNDERLIE
THE REQUIREMENT THAT PETITIONERS SEEKING HABEAS RELIEF FROM STATE
CRIMINAL CONVICTIONS MUST FIRST EXHAUST AVAILABLE STATE REMEDIES:  THE
FEDERAL COURTS ARE "NOT AT LIBERTY . . . TO PRESUME THAT THE DECISION
OF THE STATE COURT WOULD BE OTHERWISE THAN IS REQUIRED BY THE
FUNDAMENTAL LAW OF THE LAND . . . ."  EX PARTE ROYALL, 117 U.S. 241,
252 (1886).  SEE DARR V. BURFORD, 339 U.S. 200, 204 N. 10 (1950). 

TO SOME EXTENT, THE PRACTICAL CONSIDERATIONS SUPPORTING BOTH THE
EXHAUSTION REQUIREMENT IN HABEAS CORPUS AND THE FEDERAL EQUITY RULE
BARRING INTERVENTION INTO PENDING STATE CRIMINAL PROCEEDINGS EXCEPT IN
EXTRAORDINARY CIRCUMSTANCES ARE SIMILAR TO THOSE THAT UNDERLIE THE
REQUIREMENT OF EXHAUSTION OF ADMINISTRATIVE REMEDIES.  E.G., MYERS V.
BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, 50 - 51 (1938).  THE LATTER
RULE, LOOKING TO THE SPECIAL COMPETENCE OF AGENCIES IN WHICH CONGRESS
HAS REPOSED THE DUTY TO PERFORM PARTICULAR TASKS, IS BASED ON THE NEED
TO ALLOW AGENCIES TO DEVELOP THE FACTS, TO APPLY THE LAW IN WHICH THEY
ARE PECULIARLY EXPERT, AND TO CORRECT THEIR OWN ERRORS.  THE RULE
ENSURES THAT WHATEVER JUDICIAL REVIEW IS AVAILABLE WILL BE INFORMED AND
NARROWED BY THE AGENCIES' OWN DECISIONS.  IT ALSO AVOIDS DUPLICATIVE
PROCEEDINGS, AND OFTEN THE AGENCY'S ULTIMATE DECISION WILL OBVIATE THE
NEED FOR JUDICIAL INTERVENTION.  E.G., MC KART V. UNITED STATES, 395
U.S. 185, 194 - 195 (1969); PARISI V. DAVIDSON, 405 U.S. 34, 37
(1972). 

THESE CONSIDERATIONS APPLY IN EQUAL MEASURE TO THE BALANCE GOVERNING
THE PROPRIETY OF EQUITABLE INTERVENTION IN PENDING COURT-MARTIAL
PROCEEDINGS.  BUT AS IN THE CASE OF STATE CRIMINAL PROSECUTIONS THERE
IS HERE SOMETHING MORE THAT, IN OUR VIEW, COUNSELS STRONGLY AGAINST THE
EXERCISE OF EQUITY POWER EVEN WHERE, UNDER THE ADMINISTRATIVE REMEDIES
EXHAUSTION RULE, INTERVENTION MIGHT BE APPROPRIATE.  /30/ WHILE THE
PECULIAR DEMANDS OF FEDERALISM ARE NOT IMPLICATED, THE DEFICIENCY IS
SUPPLIED BY FACTORS EQUALLY COMPELLING.  THE MILITARY IS "A SPECIALIZED
SOCIETY SEPARATE FROM CIVILIAN SOCIETY"  WITH "LAWS AND TRADITIONS OF
ITS OWN (DEVELOPED) DURING ITS LONG HISTORY."  PARKER V. LEVY, 417
U.S., AT 743.  MOREOVER, "IT IS THE PRIMARY BUSINESS OF ARMIES AND
NAVIES TO FIGHT OR BE READY TO FIGHT WARS SHOULD THE OCCASION ARISE,"
TOTH V. QUARLES, 350 U.S. 11, 17 (1955).  TO PREPARE FOR AND PERFORM
ITS VITAL ROLE, THE MILITARY MUST INSIST UPON A RESPECT FOR DUTY AND A
DISCIPLINE WITHOUT COUNTERPART IN CIVILIAN LIFE.  THE LAWS AND
TRADITIONS GOVERNING THAT DISCIPLINE HAVE A LONG HISTORY; BUT THEY ARE
FOUNDED ON UNIQUE MILITARY EXIGENCIES AS POWERFUL NOW AS IN THE PAST. 
THEIR CONTEMPORARY VITALITY REPEATEDLY HAS BEEN RECOGNIZED BY
CONGRESS.     IN ENACTING THE CODE, CONGRESS ATTEMPTED TO BALANCE THESE
MILITARY NECESSITIES AGAINST THE EQUALLY SIGNIFICANT INTEREST OF
ENSURING FAIRNESS TO SERVICEMEN CHARGED WITH MILITARY OFFENSES, AND TO
FORMULATE A MECHANISM BY WHICH THESE OFTEN COMPETING INTERESTS CAN BE
ADJUSTED.  AS A RESULT, CONGRESS CREATED AN INTEGRATED SYSTEM OF
MILITARY COURTS AND REVIEW PROCEDURES, A CRITICAL ELEMENT OF WHICH IS
THE COURT OF MILITARY APPEALS CONSISTING OF CIVILIAN JUDGES "COMPLETELY
REMOVED FROM ALL MILITARY INFLUENCE OR PERSUASION," /31/ WHO WOULD GAIN
OVER TIME THOROUGH FAMILIARITY WITH MILITARY PROBLEMS.  SEE NOYD V.
BOND, 395 U.S., AT 694 - 695. 

AS WE HAVE STATED ABOVE, JUDGMENTS OF THE MILITARY COURT SYSTEM
REMAIN SUBJECT IN PROPER CASES TO COLLATERAL IMPEACHMENT.  BUT IMPLICIT
IN THE CONGRESSIONAL SCHEME EMOBOIED IN THE CODE IS THE VIEW THAT THE
MILITARY COURT SYSTEM GENERALLY IS ADEQUATE TO AND RESPONSIBLY WILL
PERFORM ITS ASSIGNED TASK.  WE THINK THIS CONGRSSIONAL JUDGMENT MUST BE
RESPECTED AND THAT IT MUST BE ASSUMED THAT THE MILITARY COURT SYSTEM
WILL VINDICATE SERVICEMEN'S CONSTITUTIONAL RIGHTS.  WE HAVE RECOGNIZED
THIS, AS WELL AS THE PRACTICAL CONSIDERATIONS COMMON TO ALL EXHAUSTION
REQUIREMENTS, IN HOLDING THAT FEDERAL COURTS NORMALLY WILL NOT
ENTERTAIN HABEAS PETITIONS BY MILITARY PRISONERS UNLESS ALL AVAILABLE
MILITARY REMEDIES HAVE BEEN EXHAUSTED.  GUSIK V. SCHILDER, SUPRA; NOYD
V. BOND, SUPRA.  /32/ THE SAME PRINCIPLES ARE RELEVANT TO STRIKING THE
BALANCE GOVERNING THE EXERCISE OF EQUITY POWER.  WE HOLD THAT WHEN A
SERVICEMENT CHARGED WITH CRIMES BY MILITARY AUTHORITIES CAN SHOW NO
HARM OTHER THAN THAT ATTEMDANT TO RESOLUTION OF HIS CASE IN THE
MILITARY COURT SYSTEM, THE FEDERAL DISTRICT COURTS MUST REFRAIN
FROMINTERVENTION, BY WAY OF INJUNCTION OR OTHERWISE. 

RESPONDENT SEEKS TO AVOID THIS RESULT BY POINTING TO THE SEVERAL
MILITARY HABEAS CASES IN WHICH THIS COURT HAS NOT REQUIRED EXHAUSTION
OF REMEDIES IN THE MILITARY SYSTEM BEFORE ALLOWING COLLATERAL RELIEF. 
TOTH V. QUARLES, SUPRA; REID V. COVERT, 354 U.S. 1 (1957); MC ELROY V.
THE GUAGLIARDO, 361 U.S. 281 (1960).  IN THOSE CASES, THE HABEAS
PETITIONERS WERE CIVILIANS WHO CONTENDED THAT CONGRESS HAD NO
CONSTITUTIONAL POWER TO SUBJECT THEM TO THE JURISDICTION OF COURTS
MARTIAL.  THE ISSUE PRESENTED CONCERNED NOT ONLY THE MILITARY COURT'S
JURISDICTION, BUT ALSO WHETHER UNDER ART. I CONGRESS COULD ALLOW THE
MILITARY TO INTERFERE WITH THE LIBERTY OF CIVILIANS EVEN FOR THE
LIMITED PURPOSE OF FORCING THEM TO ANSWER TO THE MILITARY JUSTICE
SYSTEM.  IN EACH OF THESE CASES, THE DISRUPTION CAUSED TO PETITIONERS'
CIVILIAN LIVES AND THE ACCOMPANYING DEPRIVATION OF LIBERTY MADE IT
"ESPECIALLY UNFAIR TO REQUIRE EXHAUSTION . . . WHEN THE COMPLAINANTS
RAISED SUBSTANTIAL ARGUMENTS DENYING THE RIGHT OF THE MILITARY TO TRY
THEM AT ALL."  NOYD V. BOND, 395 U.S., AT 696 N. 8.  THE CONSTITUTIONAL
QUESTION PRESENTED TURNED ON THE STATUS OF THE PERSONS AS TO WHOM THE
MILITARY ASSERTED ITS POWER.  AS THE COURT NOTED IN NOYD, IT "DID NOT
BELIEVE THAT THE EXPERTISE OF MILITARY COURTS EXTENDED TO THE
CONSIDERATION OF CONSTITUTIONAL CLAIMS OF THE TYPE PRESENTED."  IBID. 
/33/ 

ASSUMING ARGUENDO THAT, ABSENT INCARCERATION OR OTHER DEPRIVATION OF
LIBERTY, FEDERAL COURT INTERVENTION WOULD BE APPROPRIATE IN CASES LIKE
TOTH AND ITS PROGENY DESPITE FAILURE TO EXHAUST MILITARY REMEDIES, THE
CONSIDERATIONS SUPPORTING SUCH INTERVENTION ARE NOT APPLICABLE HERE. 
COUNCILMAN WAS ON ACTIVE DUTY WHEN THE CHARGES AGAINST HIM WERE
BROUGHT.  THERE IS NO QUESTION THAT HE IS SUBJECT TO MILITARY AUTHORITY
AND IN PROPER CASES TO DISCIPLINARY SANCTIONS LEVIED THROUGH THE
MILITARY JUSTICE SYSTEM.  WE SEE NO INJUSTICE IN REQUIRING RESPONDENT
TO SUBMIT TO A SYSTEM ESTABLISHED BY CONGRESS AND CAREFULLY DESIGNED TO
PROTECT NOT ONLY MILITARY INTERESTS BUT HIS LEGITIMATE INTERESTS AS
WELL.  OF COURSE, IF THE OFFENSES WITH WHICH HE IS CHARGED ARE NOT
"SERVICE CONNECTED," THE MILITARY COURTS WILL HAVE HAD NO POWER TO
IMPOSE ANY PUNISHMENT WHATEVER.  BUT THAT ISSUE TURNS IN MAJOR PART ON
GAUGING THE IMPACT OF AN OFFENSE ON MILITARY DISCIPLINE AND
EFFECTIVENESS, ON DETERMINING WHETHER THE MILITARY INTEREST IN
DETERRING THE OFFENSE IS DISTINCT FROM AND GREATER THAN THAT OF
CIVILIAN SOCIETY, AND ON WHETHER THE DISTINCT MILITARY INTEREST CAN BE
VINDICATED ADEQUATELY IN CIVILIAN COURTS.  THESE ARE MATTERS OF
JUDGMENT THAT OFTEN WILL TURN ON THE PRECISE SET OF FACTS IN WHICH THE
OFFENSE HAS OCCURRED.  SEE RELFORD V. U.S. DISCIPLINARY COMMANDANT, 401
U.S. 355 (1971).  MORE IMPORTANTLY, THEY ARE MATTERS AS TO WHICH THE
EXPERTISE OF MILITARY COURTS IS SINGULARLY RELEVANT, AND THEIR
JUDGMENTS INDISPENSABLE TO INFORM ANY EVENTUAL REVIEW IN ART. III
COURTS.  /34/ 

WE HAVE NO OCCASION TO ATTEMPT TO DEFINE THOSE CIRCUMSTANCES, IF
ANY, IN WHICH EQUITABLE INTERVENTION INTO PENDING COURT-MARTIAL
PROCEEDINGS MIGHT BE JUSTIFIED.  IN THE CIRCUMSTANCES DISCLOSED HERE,
WE DISCERN NOTHING THAT OUTWEIGHS THE STRONG CONSIDERATIONS FAVORING
EXHAUSTION OF REMEDIES OR THAT WARRANTS INTRUDING ON THE INTEGRITY OF
MILITARY COURT PROCESSES. 

                                  REVERSED. 

/1/ SEE SECRETARY OF THE NAVY V. AVRECH, 418 U.S. 676 (1974). 

/2/ PET. FOR CERT., APP. E, PP. 23 - 25. 

/3/ 10 U.S.C. SEC. 934.  THE ARTICLE PROHIBITS, INTER ALIA, "ALL
DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN
THE ARMED FORCES."  THIS PROVISION WAS UPHELD LAST TERM AS AGAINST
VAGUENESS AND FIRST AMENDMENT OVERBREADTH CHALLENGES.  PARKER V. LEVY,
417 U.S. 733 (1974); SECRETARY OF THE NAVY V. AVRECH, SUPRA.  NO
SIMILAR CHALLENGE IS REPEATED HERE. 

/4/ SEE UCMJ ART. 32, 10 U.S.C. SEC. 832. 

/5/ THE DISTRICT COURT SUBSEQUENTLY DENIED THE MILITARY AUTHORITIES'
PETITION FOR RECONSIDERATION, IN WHICH PETITIONERS ARGUED THAT BECAUSE
COUNCILMAN HAD NOT FILED A COMPLAINT TO INSTITUTE THE ACTION AS
REQUIRED BY FED. RULE CIV. PROC. 3, THE COURT LACKED JURISDICTION TO
ACT.  THE DISTRICT COURT CONCLUDED THAT THE PAPERS FILED BY COUNCILMAN-
MOTIONS FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION,
AND SUPPORTING AFFIDAVIT AND BRIEFS--ALTHOUGH NOT FORMALLY DENOMINATED
A COMPLAINT, WERE ADEQUATE TO APPRISE PETITIONERS OF THE NATURE OF THE
CLAIM AND THE RELIEF SOUGHT AND TO INVOKE THE JURISDICTION OF THE
COURT.  THE COURT STATED THAT, AS AUTHORIZED BY FED. RULE CIV. PROC. 8
(F), IT DEEMED THE PAPERS SUFFICIENT TO COMPLY WITH RULE 3, AND ENTERED
AN ORDER NUNC PRO TUNC, UNDER FED. RULE CIV. PROC. 15 (B), CONFORMING
THE PLEADINGS TO THE RULES.  PETITIONERS HAVE RAISED NO OBJECTION TO
THIS DISPOSITION OF THE MATTER.  WE THINK THAT SO LONG AS THE COURT'S
SUBJECT-MATTER JURISDICTION ACTUALLY EXISTED AND ADEQUATELY APPEARED TO
EXIST FROM THE PAPERS FILED, SEE N. 9, INFRA, ANY DEFECT IN THE MANNER
IN WHICH THE ACTION WAS INSTITUTED AND PROCESSED IS NOT ITSELF
JURISDICITONAL AND DOES NOT PREVENT ENTRY OF A VALID JUDGMENT.  SEE 2
J. MOORE, FEDERAL PRACTICE 3.04, PP. 718 - 720, 3.06 (1), PP. 731 - 732
(2D ED. 1974). 

/6/ PET. FOR CERT. 2. 

/7/ E.G., UNITED STATES V. CASTRO, 18 U.S.C.M.A. 598, 40 C.M.R. 310
(1969); UNITED STATES V. ADAMS, 19 U.S.C.M.A. 75, 41 C.M.R. 75 (1969)
(OFF-POST POSSESSION OF MARIHUANA OR ILLEGAL NARCOTICS HELD SERVICE
CONNECTED); UNITED STATES V. ROSE, 19 U.S.C.M.A. 3, 41 C.M.R. 3 (1969)
(UNLAWFUL SALE OF BARBITURATES OFF POST BY ONE SERVICE MAN TO ANOTHER
HELD SERVICE CONNECTED).  SEE COLE V. LAIRD, 468 F. 2D 829 (CA5 1972)
(HOLDING USE OF MARIHUANA BY A SERVICEMAN OFF POST AND OFF DUTY NOT
SERVICE CONNECTED); MOYLAN V. LAIRD, 305 F. SUPP. 551 (RI 1969); LYLE
V. KINCAID, 344 F. SUPP. 223 (MD FLA. 1972); SCHROTH V. WARNER, 353 F.
SUPP. 1032 (HAW.  1973); REDMOND V. WARNER, 355 F. SUPP. 812 (HAW. 
1973) (HOLDING THAT THE MILITARY LACKS JURISDICTION OVER OFF-POST DRUG
OFFENSES).  CONTRA: SCOTT V. SCHLESINGER, NO. C.A. 4 - 2371 (ND TEX.
OCT. 1, 1973) (OFF-POST SALES OF MARIHUANA TO SERVICEMEN HELD SERVICE
CONNECTED). 

/8/ 28 U.S.C. SEC. 1254 (1). 

/9/ THE "COMPLAINT" FILED IN THE DISTRICT COURT, SEE N. 5, SUPRA,
NOWHERE MENTIONED SEC. 1331 NOR ALLEGED THE REQUISITE AMOUNT IN
CONTROVERSY.  THE FACTS ALLEGED AND THE CLAIM ASSERTED NONETHELESS WERE
SUFFICIENT TO DEMONSTRATE THE EXISTENCE OF A FEDERAL QUESTION.  SEE C.
WRIGHT, LAW OF FEDERAL COURTS 290 - 291 (2D ED. 1970).  AND ALTHOUGH A
COMPLAINT UNDER SEC. 1331 IS FATALLY DEFECTIVE UNLESS IT CONTAINS A
PROPER ALLEGATION OF THE AMOUNT IN CONTROVERSY, SEE, E.G., CANADIAN
INDEMNITY CO. V. REPUBLIC INDEMNITY CO., 222 F. 2D 601 (CA9 1955),
RESPONDENT NOW CLAIMS THAT THE MATTER IN CONTROVERSY DOES EXCEED THE
REQUISITE AMOUNT.  BRIEF FOR RESPONDENT ON THE JURISDICTIONAL ISSUES 4
5.  DEFECTIVE ALLEGATIONS OF JURISDICTION MAY BE AMENDED, 28 U.S.C.
SEC. 1653.  IN VIEW OF OUR DISPOSITION OF THE CASE, HOWEVER, NO PURPOSE
WOULD BE SERVED BY REQUIRING A FORMAL AMENDMENT AT THIS STAGE. 

/10/ " THE APPELLATE REVIEW OF RECORDS OF TRIAL PROVIDED BY THIS
CHAPTER, THE PROCEEDINGS, FINDINGS, AND SENTENCES OF COURTS-MARTIAL AS
APPROVED, REVIEWED, OR AFFIRMED AS REQUIRED BY THIS CHAPTER, AND ALL
DISMISSALS AND DISCHARGES CARRIED INTO EXECUTION UNDER SENTENCES BY
COURTS-MARTIAL FOLLOWING APPROVAL, REVIEW, OR AFFIRMATION AS REQUIRED
BY THIS CHAPTER, ARE FINAL AND CONCLUSIVE.  ORDERS PUBLISHING THE
PROCEEDINGS OF COURTS-MARTIAL AND ALL ACTION TAKEN PURSUANT TO THOSE
PROCEEDINGS ARE BINDING UPON ALL DEPARTMENTS, COURTS, AGENCIES, AND
OFFICERS OF THE UNITED STATES, SUBJECT ONLY TO ACTION UPON A PETITION
FOR A NEW TRIAL AS PROVIDED IN SECTION 873 OF THIS TITLE (ARTICLE 73)
AND TO ACTION BY THE SECRETARY CONCERNED AS PROVIDED IN SECTION 874 OF
THIS TITLE (ARTICLE 74) AND THE AUTHORITY OF THE PRESIDENT." 

/11/ UNITED STATES V. AUGENBLICK, 393 U.S. 348, 349 - 353 (1969);
SECRETARY OF THE NAVY V. AVRECH, SUPRA.  CF. WARNER V. FLEMINGS,
DECIDED TOGETHER WITH GOSA V. MAYDEN, 413 U.S. 665 (1973). 

/12/ SEE ALSO IN RE YAMASHITA, 327 U.S. 1, 8 (1946); IN RE VIDAL,
179 U.S. 126 (1900).  CF. CRAWFORD V. UNITED STATES, 380 U.S. 970
(1965) (MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF CERTIORARI TO
COURT OF MILITARY APPEALS DENIED). 

/13/ RESTATEMENT OF JUDGMENTS SEC. 11 (1942); F. JAMES, CIVIL
PROCEDURE SEC. 11.5 (1965).  COMPARE ASHE V. MC NAMARA, 355 F. 2D 277
(CA1 1965), WITH DAVIES V. CLIFFORD, 393 F. 2D 496 (CA1 1968). 

/14/ SEE FAY V. NOIA, 372 U.S. 391, 423 - 424 (1963). 

/15/ SEE GENERALLY WECKSTEIN, FEDERAL COURT REVIEW OF COURTS-MARTIAL
PROCEEDINGS:  A DELICATE BALANCE OF INDIVIDUAL RIGHTS AND MILITARY
RESPONSIBILITIES, 54 MIL. L. REV. 1 (1971); BISHOP, CIVILIAN JUDGES AND
MILITARY JUSTICE:  COLLATERAL REVIEW OF COURT-MARTIAL CONVICTIONS, 61
COL. L. REV. 40 (1961). 

/16/ IN DYNES, THE COURT STATED: 

" PERSON, THEN, BELONGING TO THE ARMY AND THE NAVY ARE NOT SUBJECT
TO ILLEGAL OR IRRESPONSIBLE COURTS MARTIAL . . . . IN SUCH CASES,
EVERYTHING WHICH MAY BE DONE IS VOID--NOT VIODABLE, BUT VOID; AND CIVIL
COURTS HAVE NEVER FAILED, UPON A PROPER SUIT, TO GIVE A PARTY REDRESS,
WHO HAS BEEN INJURED BY A VOID PROCESS OR VOID JUDGMENT."  20 HOW.  65,
81 (1857). 

/17/ E.G., EX PARTE REED, 100 U.S. 13 (1879). 

/18/ SEE, E.G., MC CLAUGHRY V. DEMING, 186 U.S. 49 (1902) (HABEAS
CORPUS); AND UNITED STATES V. BROWN, 206 U.S. 240 (1907) (BACKPAY
SUIT).  IN WALES V. WHITNEY, 114 U.S. 564 (1885), THE COURT REFUSED TO
CONSIDER A HABEAS CORPUS ATTACK ON THE JURISDICTION OF A PENDING COURT
MARTIAL PROCEEDING BECAUSE THE PETITIONER WAS NOT IN CUSTODY.  THE
COURT, HOWEVER, OBSERVED: 

" IF THAT COURT FINDS HIM GUILTY, AND IMPOSES IMPRISONMENT AS PART
OF A SENTENCE, HE CAN THEN HAVE A WRIT TO RELIEVE HIM OF THAT
IMPRISONMENT.  IF HE SHOULD BE DEPRIVED OF OFFICE, HE CAN SUE FOR HIS
PAY AND HAVE THE QUESTION OF THE JURISDICTION OF THE COURT WHICH MADE
SUCH AN ORDER INQUIRED INTO IN THAT SUIT.  IF HIS PAY IS STOPPED, IN
WHOLE OR IN PART, HE CAN DO THE SAME THING.  IN ALL THESE MODES HE CAN
HAVE RELIEF IF THE COURT IS WITHOUT JURISDICTION . . . ."  ID., AT
575. 

/19/ IF IT HAD, COUNCILMAN'S SUIT WOULD HAVE BEEN A SPECIES OF
PREJUDGMENT DIRECT ATTACK, IN WHICH CASE THE DISTRICT COURT WOULD HAVE
HAD NO JURISDICITON WHATEVER. 

/20/ SEE, E.G., WECKSTEIN, SUPRA, N. 15, AT 12. 

/21/ 62 STAT. 639. 

/22/ U.S. CONST., ART. I, SEC. 9.  CF. IN RE YAMASHITA, 327 U.S., AT
8; FAY V. NOIA, 372 U.S., AT 399 - 400. 

/23/ S. REP. NO. 486, 81ST CONG., 1ST SESS., 32 (1949); H.R. REP.
NO. 491, 81ST CONG., 1ST SESS., 35 (1949). 

/24/ H.R. REP. NO. 491, SUPRA, AT 7.  SEE ALSO 95 CONG. REC. 5721
(1949) (REMARKS OF REP. BROOKS).  IT HAD BEEN SUGGESTED IN COMMITTEE
HEARINGS THAT ANY RESTRICTION ON THE AVAILABILITY OF HABEAS CORPUS
WOULD INVOLVE CONSTITUTIONAL PROBLEMS.  HEARINGS ON H.R. 2498 BEFORE A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON ARMED SERVICES, 81ST CONG., 1ST
SESS., 799 (1949).  SENATOR KEFAUVER, IN DISCUSSING ART. 76, STATED
THAT " CONGRESS, THROUGH ITS ENACTMENT, DID NOT, AND COULD NOT, . . .
INTEND TO TAKE AWAY THE JURISDICTION OF THE SUPREME COURT OR OF OTHER
COURTS IN HABEAS CORPUS MATTERS."  96 CONG. REC. 1414 (1950). 

/25/ SEE AUGENBLICK V. UNITED STATES, 180 CT. CL. 131, 142, 377 F.
2D 586, 592 (1967), REV'D ON OTHER GROUNDS, 393 U.S. 348 (1969);
KAUFFMAN V. SECRETARY OF THE AIR FORCE, 135 U.S. APP. D.C. 1, 5, 415 F.
2D 991, 995 (1969), CERT. DENIED, 396 U.S. 1013 (1970). 

/26/ IN UNITED STATES V. FRISCHHOLZ, 16 U.S.C.M.A. 150, 151, 36
C.M.R. 306, 307 (1966), THE COURT OF MILITARY APPEALS STATED THAT ART.
76 "DOES NOT INSULATE A CONVICTION FROM SUBSEQUENT ATTACK IN AN
APPROPRIATE FORUM.  AT BEST IT PROVIDES FINALITY ONLY AS TO
INTERPRETATIONS OF MILITARY LAW BY THIS COURT.  . . . IT HAS NEVER BEEN
HELD TO BAR REVIEW OF A COURT-MARTIAL, WHEN FUNDAMENTAL QUESTIONS OF
JURISDICTION ARE INVOLVED."     /27/ SEE N. 9, SUPRA. 

/28/ 2 J. MOORE, FEDERAL PRACTICE 2.08, P. 406 (2D ED. 1974). 

/29/ IT HAS BEEN SUGGESTED THAT THE CONTINUING SUBORDINATION OF
EQUITABLE TO LEGAL REMEDIES IS JUSTIFIED "UNDER OUR CONSTITUTION, IN
ORDER TO PREVENT EROSION OF THE ROLE OF THE JURY AND AVOID A
DUPLICATION OF LEGAL PROCEEDINGS.  . . ."  YOUNGER V. HARRIS, 401 U.S.
37, 44 (1971).  SEE O. FISS, INJUNCTIONS 12 (1972).  WHATEVER RELEVANCE
THE FIRST OF THESE JUSTIFICATIONS HAS IN THE YOUNGER CONTEXT, IT HAS
NONE HERE. 

/30/ SEE LEVY V. CORCORAN, 128 U.S. APP. D.C. 388, 390, 389 F. 2D
929, 931 (OPINION OF LEVENTHAL, J.), CERT. DENIED, 389 U.S. 960
(1967).  CF. SHERMAN, JUDICIAL REVIEW OF MILITARY DETERMINATIONS AND
THE EXHAUSTION OF REMEDIES REQUIREMENT, 55 VA. L. REV. 483, 496 - 499
(1969). 

/31/ H.R. REP. NO. 491, 81ST CONG., 1ST SESS., 7 (1949). 

/32/ IN GUISK V. SCHILDER, 340 U.S. 128, 131 - 132 (1940), THE COURT
DREW AN EXPLICIT ANALOGY TO THE EXHAUSTION REQUIREMENT FOR FEDERAL
HABEAS ATTACKS ON STATE CRIMINAL CONVICTIONS.  SEE GOSA V. MAYDEN, 413
U.S., AT 711 - 712 (MARSHALL, J., DISSENTING). 

/33/ SEE UNITED STATES EX REL. GUAGLIARDO V. MC ELROY, 104 U.S. APP.
D.C. 112, 114, 259 F. 2D 927, 929 (1958), AFF'D, 361 U.S. 281 (1960). 

/34/ DOOLEY V. PLOGER, 491 F. 2D 608, 612 - 615 (CA4 1974); SEDIVY
V. RICHARDSON, 485 F. 2D 1115, 1118 - 1121 (CA3 1973).  SEE NELSON &
WESTBROOK, COURT-MARIAL JURISDICTION OVER SERVICEMEN FOR " CIVILIAN"
OFFENSES:  AN ANALYSIS OF O' CALLAHAN V. PARKER, 54 MINN. L. REV. 1, 50
- 52 (1969). 

THE DISSENTING OPINION OF MR. JUSTICE BRENNAN STATES:  " MILITARY
TRIBUNALS HAVE NO EXPERTISE WHATEVER TO BRING TO BEAR ON THE
DETERMINATION WHETHER A COMMON EVERDAY PRACTICE CARRIED ON BY CIVILIANS
BECOMES SERVICE CONNECTED WHEN CARRIED ON BY SERVICEMEN."  POST, AT 764
- 765.  MOREOVER, THE DISSENT FINDS THE RECORD DEVOID OF EVIDENCE "THAT
USE OF MARIHUANA IN ANY AMOUNTS UNDER ANY CIRCUMSTANCES ADVERSELY
AFFECTS A SERVICEMAN'S PERFORMANCE OF HIS DUTIES."  POST, AT 769. 

ALTHOUGH WE DO NOT ADDRESS FACUTAL ISSUES IN THIS OPINION, WE NOTE-
IN VIEW OF THE DISSENT'S POSITION--THE SOLICITOR GENERAL'S STATEMENT
THAT "DRUG ABUSE IS A FAR MORE SERIOUS PROBLEM IN THE MILITARY CONTEXT
THAN IN CIVILIAN LIFE."  BRIEF FOR PETITIONERS ON MERITS 15.  THE
SERIOUSNESS OF THE PROBLEM IS INDICATED BY INFORMATION PRESENTED BEFORE
CONGRESSIONAL COMMITTEES TO THE EFFECT THAT SOME 86,000 SERVICEMEN
UNDERWENT SOME TYPE OF REHABILITATION FOR DRUG ABUSE IN FISCAL YEARS
1972 AND 1973, AND ONLY 52% OF THESE WERE ABLE TO RETURN TO DUTY AFTER
REHABILITATION.  ID., AT 17 - 18, CITING HEARING ON REVIEW OF MILITARY
DRUG AND ALCOHOL PROGRAMS BEFORE THE SUBCOMMITTEE ON DRUG ABUSE IN THE
MILITARY SERVICES OF THE SENATE COMMITTEE ON ARMED SERVICES, 93D CONG.,
1ST STSS., 109, 110 (1973).  SEE ALSO HEARINGS ON MILITARY DRUG ABUSE,
1971, BEFORE THE SUBCOMMITTEE ON ALCOHOLISM AND NARCOTICS OF THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE, 92D CONG., 1ST SESS., 120 - 127
(1971).  IT IS NOT SURPRISING, IN VIEW OF THE NATURE AND MAGNITUDE OF
THE PROBLEM, THAT IN UNITED STATES V. BEEKER, 18 U.S.C.M.A. 563, 565,
40 C.M.R. 275, 277 (1969), THE COURT OF MILITARY APPEALS FOUND THAT
"USE OF MARIHUANA AND NARCOTICS BY MILITARY PERSONS ON OR OFF A
MILITARY BASE HAS SPECIAL MILITARY SIGNIFICANCE" IN LIGHT OF THE
"DISASTROUS EFFECTS" OF THESE SUBSTANCES "'ON THE HEALTH, MORALE AND
FITNESS FOR DUTY OF PERSONS IN THE ARMED FORCES.'" 

WE EXPRESS NO OPINION WHETHER THE OFFENSE WITH WHICH RESPONDENT IN
THIS CASE WAS CHARGED IS IN FACT SERVICE CONNECTED.  BUT WE HAVE NO
DOUBT THAT MILITARY TRIBUNALS DO HAVE BOTH EXPERIENCE AND EXPERTISE
THAT QUALIFY THEM TO DETERMINE THE FACTS AND TO EVALUATE THEIR
RELEVANCE TO MILITARY DISCIPLINE, MORALE, AND FITNESS. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE JUDGMENT. 

I CONCUR IN THE JUDGMENT BECAUSE I BELIEVE THAT ART. 76 OF THE UCMJ
APPLIES ONLY TO POST-JUDMENT ATTACKS UPON THE PROCEEDINGS OF COURTS
MARTIAL AND THAT THE DISTRICT COURT SHOULD HAVE DISMISSED THE COMPLAINT
ON THE BASIS OF YOUNGER V. HARRIS, 401 U.S. 37 (1971). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, CONCURRING AND DISSENTING. 

I AGREE THAT ART. 76 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10
U.S.C. SEC. 876, DOES NOT LIMIT THE JURISDICTION OF FEDERAL CIVIL
COURTS TO HABEAS CORPUS REVIEW OF COURT-MARTIAL CONVICTIONS.  I
THEREFORE JOIN PART II OF THE COURT'S OPINION. 

I DISSENT, HOWEVER, FROM THE COURT'S HOLDING IN PART III THAT, AS
APPLIED TO HIS CHALLENGE THAT THE OFFENSE CHARGED WAS NOT SERVICE
CONNECTED, THIS SERVICEMAN MUST EXHAUST EVERY AVENUE WITHIN THE
MILITARY FOR DETERMINATION AND REVIEW OF THAT QUESTION, AND THAT, UNTIL
HE DOES, "FEDERAL DISTRICT COURTS MUST REFRAIN FROM INTERVENTION, BY
WAY OF INJUNCTION OR OTHERWISE."  THE COURT IMPOSES THIS RESTRAINT UPON
THE EXERCISE BY THE DISTRICT COURT OF ITS CONCEDED JURISDICITON FOR
REASONS THAT CLEARLY ARE NOT PERSUASIVE.  MOREOVER, TODAY'S HOLDING
DEPARTS FROM AN UNBROKEN LINE OF OUR DECISIONS THAT-CONSISTENTLY WITH
OUR BASIC CONSTITUTIONAL TENET THAT SUBORDINATES THE MILITARY TO THE
CIVIL AUTHORITY--RESTRICTS MILITARY COGNIZANCE OF OFFENSES TO THE
NARROWEST JURISDICTION DEEMED ABSOLUTELY NECESSARY, AND PRECLUDES
EXPANSION OF MILITARY JURISDICITON AT THE EXPENSE OF THE
CONSTITUTIONALLY PREFERRED CIVIL JURISDICITON.  TOTH V. QUARLES, 350
U.S. 11 (1955); REID V. COVERT, 354 U.S. 1 (1957); MC ELROY V.
GUAGLIARDO, 361 U.S. 281 (1960); NOYD V. BOND, 395 U.S. 683 (1969). 

        I 

IT IS, OF COURSE, SETTLED THAT FEDERAL DISTRICT COURTS MAY NOT
ENTERTAIN EVEN A HABEAS CORPUS APPLICATION OF A SERVICEMAN CONVICTED OF
OFFENSES RAISING NO QUESTION OF SERVICE CONNECTION UNTIL THE SERVICEMAN
HAS EXHAUSTED ALL AVAILABLE MILITARY REMEDIES, NOYD V. BOND, SUPRA.
BUT OUR OPINION IN NOYD CAREFULLY DISTINGUISHED SITUATIONS PRESENTING
CHALLENGES TO THE JURISDICTION OF THE MILITARY OVER THE PERSONS
CHARGED, E.G., TOTH V. QUARLES, SUPRA; REID V. COVERT, SUPRA; MC ELROY
V. GUAGLIARDO, SUPRA.  WE NOTED THAT IN EACH OF THOSE CASES THE COURT
"VINDICATED COMPLAINANTS' CLAIMS WITHOUT REQUIRING EXHAUSTION OF
MILITARY REMEDIES," AND THAT "(WE DID SO . . . BECAUSE WE DID NOT
BELIEVE THAT THE EXPERTISE OF MILITARY COURTS EXTENDED TO THE
CONSIDERATION OF CONSTITUTIONAL CLAIMS OF THE TYPE PRESENTED. 
MOREOVER, IT APPEARED ESPECIALLY UNFAIR TO REQUIRE EXHAUSTION OF
MILITARY REMEDIES WHEN THE COMPLAINANTS RAISED SUBSTANTIAL ARGUMENTS
DENYING THE RIGHT OF THE MILITARY TO TRY THEM AT ALL."  NOYD, SUPRA, AT
696 N. 8. 

THAT STATEMENT PRECISELY FITS THE SITUATION PRESENTED BY THIS CASE. 
THE RESPONDENT SERVICEMAN RAISES "SUBSTANTIAL ARGUMENTS DENYING THE
RIGHT OF THE MILITARY TO TRY (HIM) AT ALL," AND THE COURT UTTERLY FAILS
TO SUGGEST ANY SPECIAL "EXPERTISE OF MILITARY COURTS," INCLUDING THE
COURT OF MILITARY APPEALS, THAT EVEN APPROXIMATES THE FAR GREATER
EXPERTISE OF CIVILIAN COURTS IN THE DETERMINATION OF CONSTITUTIONAL
QUESTIONS OF JURISDICTION.  THUS THERE IS COMPELLED HERE THE CONCLUSION
IN FAVOR OF CIVILIAN COURT COGNIZANCE WITHOUT PRIOR EXHAUSTION OF
MILITARY REMEDIES THAT WAS REACHED IN TOTH V. QUARLES, REID V. COVERT,
AND MC ELROY V. GUAGLIARDO. 

THE COURT PROVIDES NO REASONED JUSTIFICAITON FOR ITS DEPARTURE FROM
THESE HOLDINGS IN REQUIRING EXHAUSTION IN THIS CASE.  /1/ THE COURT'S
FAILURE IS NOT SURPRISING SINCE PLAINLY THERE IS WHOLLY LACKING IN
MILITARY TRIBUNALS THE QUALIFICATION ORDINARILY RELIED ON TO JUSTIFY
THE EXHAUSTION REQUIREMENT, NAMELY, THE KNOW-HOW OR "EXPERTISE" OF AN
AGENCY PARTICULARLY KNOWLEDGEABLE IN THE DETERMINATION OF THE SAME OR
LIKE QUESTIONS.  MILITARY TRIBUNALS SIMPLY HAVE NO SPECIAL, IF ANY,
EXPERTISE IN THE DETERMINATION WHETHER THE OFFENSE CHARGED TO
RESPONDENT WAS SERVICE CONNECTED.  /2/ CIVILIAN COURTS MAY PROPERLY
DEFER TO MILITARY TRIBUNALS WHEN CASES INVOLVE "EXTREMELY TECHNICAL
PROVISIONS OF THE UNIFORM CODE," NOYD V. BOND, SUPRA, AT 696, OR WHERE
DEFERENCE MAY AVOID UNNECESSARY FRICTION BECAUSE THE SERVICEMAN MAY
WELL PREVAIL BEFORE THE MILITARY AUTHORITIES.  BUT THIS CASE PRESENTS
NEITHER SITUATION. 

THE OFFENSE CHARGED HERE IS NOT ENMESHED IN "TECHNICAL PROVISIONS OF
THE UNIFORM CODE."  ON THE CONTRARY, IT IS A COMMON EVERYDAY TYPE OF
DRUG OFFENSE THAT FEDERAL COURTS ENCOUNTER ALL OVER THE COUNTRY EVERY
DAY.  THE COURT AGREES THAT A DRUG TRANSACTION IS NOT A SERVICE
CONNECTED OFFENSE MERELY BECAUSE THE PARTICIPANTS ARE SERVICEMEN. 
RATHER, THE COURT ANALOGIZES MILITARY TRIBUNALS TO ADMINISTRATIVE
AGENCIES AND IMPOSES THE EXHAUSTION REQUIREMENT FAMILIAR IN AGENCY
CASES--AND IT DOES SO EVEN THOUGH THE QUESTION PRESENTED IS A
CONSTITUTIONAL DETERMINATION WHETHER THE MILITARY HAS ANY JURISDICTION
TO TRY THE SERVICEMAN AT ALL.  THE MERE SUGGESTION OF SUCH AN ANALOGY
IS WELL NIGH INCREDIBLE.  MILITARY TRIBUNALS HAVE NO EXPERTISE WHATEVER
TO BRING TO BEAR ON THE DETERMINATION WHETHER A COMMON EVERYDAY
PRACTICE CARRIED ON BY CIVILIANS BECOMES SERVICE CONNECTED WHEN CARRIED
ON BY SERVICEMEN.  /3/  IT IS VIRTUALLY HORNBOOK LAW THAT "COURTS
MARTIAL AS AN INSTITUTION ARE SINGULARLY INEPT IN DEALING WITH THE NICE
SUBTLETIES OF CONSTITUTIONAL LAW."  O' CALLAHAN V. PARKER, 395 U.S.
258, 265 (1969).  FOR "'IT IS THE PRIMARY BUSINESS OF ARMIES AND NAVIES
TO FIGHT OR BE READY TO FIGHT WARS SHOULD THE OCCASION ARISE.'"  ID.,
AT 262.  DEALING WITH THE "NICE SUBTLETIES OF CONSTITUTIONAL LAW" IS,
HOWEVER, A (IF NOT THE) PRIMARY BUSINESS OF CIVILIAN FEDERAL JUDGES. 
IT BAFFLES ME THEREFORE HOW THE COURT CAN CONCLUDE THAT COURTS-MARTIAL
OR OTHER MILITARY TRIBUNALS CAN BE ASSIGNED ON GROUNDS OF EXPERTISE, IN
PREFERENCE TO CIVILIAN FEDERAL JUDGES, THE RESPONSIBILITY FOR
CONSTITUTIONAL DECISIONMAKING. 

THE COURT'S GROUNDING OF ITS REQUIREMENT OF DEFERENCE TO THE
MILITARY ON THE NOTION THAT RESPONDENT MAY PREVAIL ON HIS CLAIM THAT
THE OFFENSE WAS NOT SERVICE CONNECTED IS EQUALLY BAFFLING.  THE
GOVERNMENT CONCEDES THAT "THE HOLDINGS OF THE COURT OF MILITARY APPEALS
WITH REGARD TO THE 'SERVICE CONNECTION' OF VARIOUS KINDS OF DRUG
OFFENSES SUGGEST THAT SUCH A CHALLENGE TO COURT-MARTIAL JURISDICTION
WOULD PROBABLY HAVE BEEN UNSUCCESSFUL."  BRIEF FOR PETITIONERS ON
JURISDICTIONAL ISSUES 19.  A CURSORY SURVEY OF DECISIONS OF THE COURT
OF MILITARY APPEALS SUGGESTS THAT THE GOVERNMENT MIGHT WELL HAVE MADE A
MORE POSITIVE CONCESSION.  SEE UNITED STATES V. ROSE, 19 U.S.C.M.A. 3,
41 C.M.R. 3 (1969); UNITED STATES V. BEEKER, 18 U.S.C.M.A. 563, 40
C.M.R. 275 (1969); UNITED STATES V. TEASLEY, 22 U.S.C.M.A. 131, 46
C.M.R. 131 (1973).  ONE OF THE LATEST IS UNITED STATES V. SEXTON, 23
U.S.C.M.A. 101, 48 C.M.R. 662 (1974), WHICH HELD THAT OFF-POST SALES
AND TRANSFERS OF MARIHUANA, AS IN THIS CASE, BY A SERVICEMAN TO AN
UNDERCOVER SERVICEMAN AGENT WAS SERVICE CONNECTED.  THAT TRACK RECORD
OF THE COURT OF MILITARY APPEALS CLEARLY COMPELS THE CONCLUSION THAT
WHERE "THE HIGHEST COURT AVAILABLE UNDER THE UNIFORM CODE OF MILITARY
JUSTICE HAS CONSISTENTLY UPHELD JURISDICITON OVER PERSONS IN THE SAME
LEGAL POSTURE AS (RESPONDENT, HE) SHOULD NOT BE REQUIRED TO AWAIT A
SIMILAR DECISION IN HIS CASE."  UNITED STATES EX REL. GUAGLIARDO V. MC
ELROY, 104 U.S. APP. D.C. 112, 114 N. 4, 259 F. 2D 927, 929 N. 4
(1958), AFF'D, 361 U.S. 281 (1960). 

I WOULD CONCLUDE, THEREFORE, THAT THE COURT OF APPEALS PROPERLY
AFFIRMED THE ACTION OF THE DISTRICT COURT IN REFUSING TO DEFER TO THE
MILITARY, AND IN DECIDING THE JURISDICTIONAL QUESTION OF SERVICE
CONNECTION.  IN THAT CIRCUMSTANCE, I REACH THE MERITS.  I CONCLUDE THAT
THE OFFENSE WAS NOT SERVICE CONNECTED AND WOULD AFFIRM THE COURT OF
APPEALS' AFFIRMANCE OF THE DISTRICT COURT'S INJUNCTION AGAINST
RESPONDENT'S COURT-MARTIAL. 

  II 

IN RELFORD V. U.S. DISCIPLINARY COMMANDANT, 401 U.S. 355, 365
(1971), THIS COURT IDENTIFIED 12 FACTORS THAT O' CALLAHAN V. PARKER,
SUPRA, HELD SHOULD BE WEIGHED IN DETERMINING WHETHER AN OFFENSE IS
SERVICE CONNECTED: 

     "1.  THE SERVICEMAN'S PROPER ABSENCE FROM THE BASE. 

     "2.  THE CRIME'S COMMISSION AWAY FROM THE BASE. 

     "3.  ITS COMMISSION AT A PLACE NOT UNDER MILITARY CONTROL. 

     "4.  ITS COMMISSION WITHIN OUR TERRITORIAL LIMITS AND NOT IN
AN

OCCUPIED ZONE OF A FOREIGN COUNTRY. 

      "5.  ITS COMMISSION IN PEACETIME AND ITS BEING UNRELATED TO

  AUTHORITY STEMMING FROM THE WAR POWER. 

"6.  THE ABSENCE OF ANY CONNECTION BETWEEN THE DEFENDANT'S MILITARY
DUTIES AND THE CRIME. 

     "7.  THE VICTIM'S NOT BEING ENGAGED IN THE PERFORMANCE OF ANY

  DUTY RELATING TO THE MILITARY. 

     "8.  THE PRESENCE AND AVAILABILITY OF A CIVILIAN COURT IN
WHICH THE CASE CAN BE PROSECUTED. 

"9.  THE ABSENCE OF ANY FLOUTING OF MILITARY AUTHORITY. 

 "10.  THE ABSENCE OF ANY THREAT TO A MILITARY POST. 

 "11.  THE ABSENCE OF ANY VIOLATION OF MILITARY PROPERTY. 

        * * * * * 

     "12.  THE OFFENSE'S BEING AMONG THOSE TRADITIONALLY PROSECUTED

  IN CIVILIAN COURTS."  401 U.S., AT 365. 

IN WEIGHING THESE FACTORS, SERVICE CONNECTION CANNOT BE ESTABLISHED
IN THIS CASE.  RESPONDENT WS PROPERLY ABSENT FROM THE POST; THE OFFENSE
OCCURED IN RESPONDENT'S OFF-POST APARTMENT, WHILE HE WAS OFF DUTY; IT
WAS COMMITTED IN THE UNITED STATES IN PEACETIME; THERE WAS NO
CONNECTION BETWEEN RESPONDENT'S MILITARY DUTIES AND THE CRIME; THE
OFFENSE IS ONE WHICH IS PROSECUTED REGULARLY IN CIVILIAN COURTS, AND
THESE COURTS WERE AVAILABLE; AND THERE WAS NO THREAT TO THE SECURITY OF
THE POST OR ITS PROPERTY, OR ANY FLOUTING OF MILITARY AUTHORITY. 

IT IS TRUE THAT THE UNDERCOVER SERVICEMAN WAS PERFORMING A DUTY
ASSIGNED TO HIM BY HIS MILITARY SUPERIORS.  BUT THIS DOES NOT ELIMINATE
FACTOR 7, FOR THE GOVERNMENT CANDIDLY ADMITS THAT " SKAGGS, WAS IN FACT
AN UNDERCOVER AGENT AND HENCE NOT A 'VICTIM' ANY MORE THAN IN A
CIVILIAN PROSECUTION IT WOULD MATTER THAT A DRUG SALE WAS MADE TO A
PLAINCLOTHES POLICEMAN WHO DID NOT INTEND TO USE THE DRUG."  BRIEF FOR
PETITIONERS ON MERITS 5.  SEE ALSO SCHROTH V. WARNER, 353 F. SUPP.
1032, 1044 (HAW.  1973), HOLDING THAT A MILITARY UNDERCOVER AGENT "IS
NOT PERFORMING A FUNCTION WHICH HAS ANY SPECIAL MILITARY
SIGNIFICANCE." 

BUT THE PETITIONERS URGE THAT MILITARY SIGNIFICANCE IS PRESENT IN "THE
BEARING OF THE OFFENSE IN QUESTION ON THE DISCIPLINE, MORALE, AND
EFFECTIVENESS OF FIGHTING FORCES," BRIEF FOR PETITIONERS ON MERITS 4,
AND THAT THIS SUFFICES TO ESTABLISH, FOR TWO REASONS, THAT THE OFFENSE
IS SERVICE CONNECTED.  FIRST, RESPONDENT, AN OFFICER, KNEW THAT HE WAS
DEALING WITH AN ENLISTED MAN, AND THAT "IN THE TIGHTLY-KNIT, RUMOR
PRONE SOCIETY OF THE MILITARY, WORD WILL USUALLY CIRCULATE AMONG THE
ENLISTED RANKS CONCERNING AN OFFICER'S PARTICIPATION IN SUCH
UNLAWFULNESS," ID., AT 5, CAUSING A BREAKDOWN IN MILITARY DISCIPLINE,
EFFECTIVENESS, AND MORALE.  SECOND, "POSSESSION OF MARIJUANA AND OTHER
PROSCRIBED DRUGS, WHETHER OFF BASE OR ON," ID., AT 6, TENDS TO IMPAIR
THE EFFECTIVENESS OF THE ARMED FORCES.  /4/ 

NEITHER REASON IS SUPPORTED BY THE RECORD.  RESPONDENT WAS STATIONED
AT FORT SILL, AND THE OFFENSE OCCURRED IN THE CIVILIAN COMMUNITY OF
LAWTON, OKLAHOMA, WHILE RESPONDENT WAS OFF DUTY, AND OUT OF UNIFORM. 
THE GOVERNMENT INTRODUCED NO EVIDENCE THAT RESPONDENT'S ACTIONS IN ANY
WAY IMPAIRED OR THREATENED TO IMPAIR THE DISCIPLINE AND EFFECTIVENESS
OF MILITARY PERSONNEL AT FORT SILL.  SIMILARLY, AND RELATED, THE RECORD
IS DEVOID OF ANY EVIDENCE WHATEVER THAT USE OF MARIHUANA IN ANY AMOUNTS
UNDER ANY CIRCUMSTANCES ADVERSELY AFFECTS A SERVICEMAN'S PERFORMANCE OF
HIS DUTIES.  WHATEVER MIGHT BE THE JUDGMENT OF MEDICAL, PSYCHOLOGICAL,
AND SOCIOLOGICAL RESEARCH IN THESE PARTICULARS, NONE WAS INTRODUCED IN
THIS RECORD. 

I WOULD AFFIRM. 

/1/ THE COURT WOULD DISTINGUISH TOTH, REID, AND MC ELROY ON THE
GROUND THAT CIVILIANS, NOT SERVICEMEN, CHALLENGED THE MILITARY'S
JURISDICTION.  BUT NOYD V. BOND DID NOT RELY ON THAT FACT.  RATHER, WE
FOCUSED ON THE LACK OF EXPERTISE OF MILITARY COURTS-MARTIAL TO DEAL
WITH FEDERAL JURISDICTIONAL AND CONSTITUTIONAL ISSUES.  "(WE DID NOT
BELIEVE THAT THE EXPERTISE OF MILITARY COURTS EXTENDED TO THE
CONSIDERATION OF CONSTITUTIONAL CLAIMS OF THE TYPE PRESENTED."  395
U.S. 683, 696 N. 8 (1969). 

/2/ THE COURT'S RELIANCE UPON DECISIONS RESTRAINING FEDERAL COURT
INTERVENTION IN STATE CRIMINAL PROCEEDINGS IS MISPLACED.  ANTE, AT 754
757.  THOSE DECISIONS INVOKE CONSIDERATIONS OF COMITY, EQUITY, AND
GENERAL PRINCIPLES OF " OUR FEDERALISM" WHICH COUNSEL AGAINST
INTERFERENCE BY THE FEDERAL JUDICIAL SYSTEM WITH PROCEEDINGS PENDING IN
A STATE JUDICIAL SYSTEM HAVING LIKE COMPETENCE TO DECIDE FEDERAL
CONSTITUTIONAL QUESTIONS.  MILITARY TRIBUNALS PLAINLY LACK A COMPARABLE
COMPETENCE. 

/3/ THE COURT PAYS DESERVED RESPECT TO THE FAIRNESS OF THE MILITARY
JUSTICE SYSTEM, OBSERVING THAT ONE OF ITS "CRITICAL ELEMENTS) . . . IS
THE COURT OF MILITARY APPEALS CONSISTING OF CIVILIAN JUDGES 'COMPLETELY
REMOVED FROM ALL MILITARY INFLUENCE OR PERSUASION,' WHO WOULD GAIN OVER
TIME THOROUGH FAMILIARITY WITH MILITARY PROBLEMS," ANTE, AT 758, AND
ADDING "THE VIEW THAT THE MILITARY COURT SYSTEM GENERALLY IS ADEQUATE
TO, AND RESPONSIBLY WILL, PERFORM ITS ASSIGNED TASK."  IBID.  I AGREE,
BUT "THOROUGH FAMILIARITY WITH MILITARY PROBLEMS" IS NOT "THOROUGH
FAMILIARITY" WITH CONSTITUTIONAL PROBLEMS OF JURISDICTION.  THE PROBLEM
PRESENTED BY THIS CASE IS NOT A TRADITIONAL "MILITARY PROBLEM."  IT IS
A CONSTITUTIONAL QUESTION WHETHER THE MILITARY HAS ANY JURISDICTION
WHATEVER TO TRY RESPONDENT FOR THE OFFENSE CHARGED.  THAT IS THE TYPE
OF QUESTION RARELY CONFRONTED BY THE COURT OF MILITARY APPEALS AND
CERTAINLY EVEN MORE RARELY BY OTHER MILITARY TRIBUNALS, OFTEN COMPOSED
OF OTHER SERVICEMEN, AND, AT LEAST IN THE CASE OF COURTS-MARTIAL,
CONVENED ONLY FOR A SINGLE CASE. 

/4/ PETITIONERS' ARGUMENTS WERE EFFECTIVELY REJECTED ONLY SIX YEARS
AGO IN O' CALLAHAN V. PARKER, 395 U.S. 258 (1969).  THERE, THE
GOVERNMENT ARGUED THAT BECAUSE TOTH, REID, AND MC ELROY ALL CONCLUDED
THAT COURTS-MARTIAL WERE WITHOUT JURISDICTION TO TRY NONMILITARY
PERSONNEL "NO MATTER HOW INTIMATE THE CONNECTION BETWEEN THEIR OFFENSE
AND THE CONCERNS OF MILITARY DISCIPLINE," IT FOLLOWS "THAT ONCE IT IS
ESTABLISHED THAT THE ACCUSED IS A MEMBER OF THE ARMED FORCES, LACK OF
RELATIONSHIP BETWEEN THE OFFENSE AND IDENTIFIABLE MILITARY INTERESTS IS
IRRELEVANT TO THE JURISDICTION OF A COURT-MARTIAL."  ID., AT 267.  WE
HELD THAT ALTHOUGH MILITARY STATUS IS ESSENTIAL TO COURT-MARTIAL
JURISDICTION, "IT DOES NOT FOLLOW THAT ASCERTAINMENT OF 'STATUS'
COMPLETES THE INQUIRY, REGARDLESS OF THE NATURE, TIME, AND PLACE OF THE
OFFENSE."  IBID. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL PETERSEN, DANNY J. BOGGS,
AND JEROME M. FEIT. 

NICHOLAS D. GARRETT AND ORIN CHRISTOPHER MEYERS ARGUED THE CAUSE AND
FILED A BRIEF FOR RESPONDENT. 

DAVID F. ADDLESTONE, DONALD S. BURRIS, MARVIN M. KARPATKIN, AND
MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION ET
AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :

















IANNELLI V. UNITED STATES, 420 U.S. 770 


       IANNELLI ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

  THIRD CIRCUIT

        NO. 73 - 64.  ARGUED DECEMBER 17, 1974--DECIDED MARCH 25,

           1975; 477 F. 2D 999, AFFIRMED. 


    EACH OF THE EIGHT PETITIONERS, ALONG WITH SEVEN UNINDICTED

  COCONSPIRATORS AND SIX CODEFENDANTS, WAS CHARGED WITH CONSPIRING

  TO VIOLATE (18 U.S.C. SEC. 371), AND WITH VIOLATING, 18 U.S.C.

  SEC. 1955, A PROVISION OF THE ORGANIZED CRIME CONTROL ACT OF 1970

  (ACT) AIMED AT LARGE-SCALE GAMBLING ACTIVITIES; AND EACH

  PETITIONER WAS CONVICTED AND SENTENCED UNDER BOTH COUNTS.  THE

  COURT OF APPEALS AFFIRMED, FINDING THAT PROSECUTION AND

  PUNISHMENT FOR BOTH OFFENSES WERE PERMITTED BY A RECOGNIZED

  EXCEPTION TO WHARTON'S RULE.  UNDER THAT RULE AN AGREEMENT BY TWO

  PERSONS TO COMMIT A PARTICULAR CRIME CANNOT BE PROSECUTED AS A

 CONSPIRACY WHEN THE CRIME IS OF SUCH A NATURE AS NECESSARILY TO

  REQUIRE THE PARTICIPATION OF TWO PERSONS FOR ITS COMMISSION, IN

  SUCH A CASE THE CONSPIRACY BEING DEEMED TO HAVE MERGED INTO THE

  COMPLETED OFFENSE.  HELD:  PETITIONERS WERE PROPERLY CONVICTED

  AND PUNISHED FOR VIOLATING 18 U.S.C. SEC. 1955 AND FOR CONSPIRING

  TO VIOLATE THAT STATUTE, IT BEING CLEAR THAT CONGRESS IN ENACTING

  THE ACT INTENDED TO RETAIN EACH OFFENSE AS AN INDEPENDENT CURB IN

COMBATING ORGANIZED CRIME.  PP. 777 - 791. 

     (A) TRADITIONALLY CONSPIRACY AND THE COMPLETED OFFENSE HAVE

  BEEN CONSIDERED TO CONSTITUTE SEPARATE CRIMES, AND THIS COURT HAS

  RECOGNIZED THAT A CONSPIRAVY POSES DANGERS QUITE APART FROM THE

  SUBSTANTIVE OFFENSE.  WHARTON'S RULE IS AN EXCEPTION TO THE

  GENERAL PRINCIPLE THAT A CONSPIRACY AND THE SUBSTANTIVE OFFENSE

  THAT IS ITS IMMEDIATE END DO NOT MERGE UPON PROOF OF THE LATTER. 

  PP. 777 - 782. 

(B) THE RULE--WHICH TRADITIONALLY HAS BEEN APPLIED TO OFFENSES

  SUCH AS ADULTERY WHERE THE HARM ATTENDANT UPON COMMISSION OF THE

  SUBSTANTIVE OFFENSE IS CONFINED TO THE PARTIES TO THE AGREEMENT

  AND WHERE THE OFFENSE REQUIRES CONCERTED CRIMINAL ACTIVITY--HAS

  CURRENT VITALITY ONLY AS A JUDICIAL PRESUMPTION TO BE APPLIED IN

  THE ABSENCE OF A CONTRARY LEGISLATIVE INTENT.  PP. 782 - 786. 

     (C) HERE SUCH A CONTRARY INTENT EXISTED, FOR IN DRAFTING THE

  ACT CONGRESS MANIFESTED ITS AWARENESS OF THE DISTINCT NATURE OF

CONSPIRACY AND THE SUBSTANTIVE OFFENSE THAT MIGHT CONSTITUTE ITS

  IMMEDIATE END, AS WELL AS A DESIRE TO PROVIDE A NUMBER OF

  DISCRETE WEAPONS FOR THE BATTLE AGAINST ORGANIZED CRIME.  PP. 786

  - 789. 

     (D) THE REQUIREMENT OF PARTICIPATION OF "FIVE OR MORE PERSONS"

  AS AN ELEMENT OF THE SEC. 1955 SUBSTANTIVE OFFENSE REFLECTS NO

  MORE THAN AN INTENT TO LIMIT FEDERAL INTERVENTION TO CASES WHERE

FEDERAL INTERESTS ARE SUBSTANTIALLY IMPLICATED, LEAVING TO LOCAL

  LAW ENFORCEMENT EFFORTS THE PROSECUTION OF SMALL-SCALE GAMBLING

  ACTIVITIES.  PP. 789 - 790. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

DOUGLAS, J., FILED A DISSENTING OPINION, IN PART II OF WHICH

  STEWART AND MARSHALL, JJ., JOINED, POST, P. 791.  BRENNAN, J.,

  FILED A DISSENTING OPINION, POST, P. 798. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES THE COURT TO CONSIDER WHARTON'S RULE, A DOCTRINE OF
CRIMINAL LAW ENUNCIATING AN EXCEPTION TO THE GENERAL PRINCIPLE THAT A
CONSPIRACY AND THE SUBSTANTIVE OFFENSE THAT IS ITS IMMEDIATE END ARE
DISCRETE CRIMES FOR WHICH SEPARATE SANCTIONS MAY BE IMPOSED. 

        I 

PETITIONERS WERE TRIED UNDER A SIX-COUNT INDICTMENT ALLEGING A
VARIETY OF FEDERAL GAMBLING OFFENSES.  EACH OF THE EIGHT PETITIONERS,
ALONG WITH SEVEN UNINDICTED COCONSPIRATORS AND SIX CODEFENDANTS, WAS
CHARGED WITH CONSPIRING /1/ TO VIOLATE AND VIOLATING 18 U.S.C. SEC.
1955, A FEDERAL GAMBLING STATUTE MAKING IT A CRIME FOR FIVE OR MORE
PERSONS TO CONDUCT, FINANCE, MANAGE, SUPERVISE, DIRECT, OR OWN A
GAMBLING BUSINESS PROHIBITED BY STATE LAW.  /2/  EACH PETITIONER WAS
CONVICTED OF BOTH OFFENSES, /3/ AND EACH WAS SENTENCED UNDER BOTH
COUNTS.  /4/ THE COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED,
FINDING THAT A RECOGNIZED EXCEPTION TO WHARTON'S RULE PERMITTED
PROSECUTION AND PUNISHMENT FOR BOTH OFFENSES, 477 F. 2D 999 (1973).  WE
GRANTED CERTIORARI TO RESOLVE THE CONFLICTS CAUSED BY THE FEDERAL
COURTS' DISPARATE APPROACHES TO THE APPLICATION OF WHARTON'S RULE TO
CONSPIRACIES TO VIOLATE SEC. 1955.  417 U.S. 907 (1974).  FOR THE
REASONS NOW TO BE STATED, WE AFFIRM. 

        II 

WHARTON'S RULE OWES ITS NAME TO FRANCIS WHARTON, WHOSE TREATISE ON
CRIMINAL LAW IDENTIFIED THE DOCTRINE AND ITS FUNDAMENTAL RATIONALE: 

     " WHEN TO THE IDEA OF AN OFFENSE PLURALITY OF AGENTS IS

  LOGICALLY NECESSARY, CONSPIRACY, WHICH ASSUMES THE VOLUNTARY

  ACCESSION OF A PERSON TO A CRIME OF SUCH A CHARACTER THAT IT IS

AGGRAVATED BY A PLURALITY OF AGENTS, CANNOT BE MAINTAINED.  . . .

  IN OTHER WORDS, WHEN THE LAW SAYS, 'A COMBINATION BETWEEN TWO

  PERSONS TO EFFECT A PARTICULAR END SHALL BE CALLED, IF THE END BE

  EFFECTED, BY A CERTAIN NAME,' IT IS NOT LAWFUL FOR THE

  PROSECUTION TO CALL IT BY SOME OTHER NAME; AND WHEN THE LAW SAYS,

  SUCH AN OFFENSE--E.G., ADULTERY--SHALL HAVE A CERTAIN PUNISHMENT,

  IT IS NOT LAWFUL FOR THE PROSECUTION TO EVADE THIS LIMITATION BY

  INDICTING THE OFFENSE AS CONSPIRACY."  2 F. WHARTON, CRIMINAL LAW

SEC. 1604, P. 1862 (12TH ED. 1932).  /5/

THE RULE HAS BEEN APPLIED BY NUMEROUS COURTS, STATE /6/ AND FEDERAL /7/
ALIKE.  IT ALSO HAS BEEN RECOGNIZED BY THIS COURT, /8/ ALTHOUGH WE
HAVE HAD NO PREVIOUS OCCASION CAREFULLY TO ANALYZE ITS JUSTIFICATION
AND PROPER ROLE IN FEDERAL LAW. 

THE CLASSIC FORMULATION OF WHARTON'S RULE REQUIRES THAT THE
CONSPIRACY INDICTMENT BE DISMISSED BEFORE TRIAL.  WHARTON'S DESCRIPTION
OF THE RULE INDICATES THAT, WHERE IT IS APPLICABLE, AN INDICTMENT FOR
CONSPIRACY "CANNOT BE MAINTAINED," IBID., A CONCLUSION ECHOED BY
ANDERSON'S MORE RECENT FORMULATION, SEE N. 5, SUPRA, AND BY STATEMENTS
OF THIS COURT AS WELL, SEE GEBARDI V. UNITED STATES, 287 U.S. 112, 122
(1932); UNITED STATES V. KATZ, 271 U.S. 354, 355 (1926).  FEDERAL
COURTS EARLIER ADHERED TO THIS LITERAL INTERPRETATION AND THUS
SUSTAINED DEMURRERS TO CONSPIRACY INDICTMENTS.  SEE UNITED STATES V.
NEW YORK C. & H.R.R. CO., 146 F. 298, 303 - 305 (CC SDNY 1906), AFF'D,
212 U.S. 481 (1909); UNITED STATES V. DIETRICH, 126 F. 659 (CC NEB.
1904).  MORE RECENTLY, HOWEVER, SOME FEDERAL COURTS HAVE DIFFERED OVER
WHETHER WHARTON'S RULE REQUIRES INITIAL DISMISSAL OF THE CONSPIRACY
INDICTMENT.  IN UNITED STATES V. GREENBERG, 334 F. SUPP. 1092 (ND OHIO
1971), AND UNITED STATES V. FIGUEREDO, 350 F. SUPP. 1031 (MD FLA.
1972), REV'D SUB NOM. UNITED STATES V. VAGLICA, 490 F. 2D 799 (CA5
1974), CERT. PENDING SUB NOM. SCAGLIONE V. UNITED STATES, NO. 73 -
1503, DISTRICT COURTS SUSTAINED PRELIMINARY MOTIONS TO DISMISS
CONSPIRACY INDICTMENTS IN CASES IN WHICH THE PROSECUTION ALSO CHARGED
VIOLATION OF SEC. 1955.  IN THIS CASE, 339 F. SUPP. 171 (WD PA. 1972),
AND IN UNITED STATES V. KOHNE, 347 F. SUPP. 1178, 1186 (WD PA. 1972),
HOWEVER, THE COURTS HELD THAT THE RULE'S PURPOSES CAN BE SERVED EQUALLY
EFFECTIVELY BY PERMITTING THE PROSECUTION TO CHARGE BOTH OFFENSES AND
INSTRUCTING THE JURY THAT A CONVICTION FOR THE SUBSTANTIVE OFFENSE
NECESSARILY PRECLUDES CONVICTION FOR THE CONSPIRACY. 

FEDERAL COURTS LIKEWISE HAVE DISAGREED AS TO THE PROPER APPLICATION
OF THE RECOGNIZED "THIRD-PARTY EXCEPTION," WHICH RENDERS WHARTON'S RULE
INAPPLICABLE WHEN THE CONSPIRACY INVOLVES THE COOPERATION OF A GREATER
NUMBER OF PERSONS THAN IS REQUIRED FOR COMMISSION OF THE SUBSTANTIVE
OFFENSE.  SEE GEBARDI V. UNITED STATES, SUPRA, AT 122 N. 6.  IN THE
PRESENT CASE, THE THIRD CIRCUIT CONCLUDED THAT THE THIRD-PARTY
EXCEPTION PERMITTED PROSECUTION BECAUSE THE CONSPIRACY INVOLVED MORE
THAN THE FIVE PERSONS REQUIRED TO COMMIT THE SUBSTANTIVE OFFENSE, 477
F. 2D 999, A VIEW SHARED BY THE SECOND CIRCUIT, UNITED STATES V.
BECKER, 461 F. 2D 230, 234 (1972), VACATED AND REMANDED ON OTHER
GROUNDS, 417 U.S. 903 (1974).  /9/  THE SEVENTH CIRCUIT REACHED THE
OPPOSITE RESULT, HOWEVER, REASONING THAT SINCE SEC. 1955 ALSO COVERS
GAMBLING ACTIVITIES INVOLVING MORE THAN FIVE PERSONS, THE THIRD-PARTY
EXCEPTION IS INAPPLICABLE.  UNITED STATES V. HUNTER, 478 F. 2D 1019,
CERT. DENIED, 414 U.S. 857 (1973). 

THE COURTS OF APPEALS ARE AT ODDS EVEN OTHER THE FUNDAMENTAL
QUESTION WHETHER WHARTON'S RULE EVER APPLIES TO A CHARGE FOR CONSPIRACY
TO VIOLATE 18 U.S.C. SEC. 1955.  THE SEVENTH CIRCUIT HOLDS THAT IT
DOES.  HUNTER, SUPRA; UNITED STATES V. CLARKE, 500 F. 2D 1405 (1974),
CERT. DENIED, POST, P. 925.  THE FOURTH AND FIFTH CIRCUITS, ON THE
OTHER HAND, HAVE DECLARED THAT IT DOES NOT.  UNITED STATES V. BOBO, 477
F. 2D 974 (CA4 1973), CERT. PENDING, SUB NOM. GRAY V. UNITED STATES,
NO. 73 - 231; UNITED STATES V. PACHECO, 489 F. 2D 554 (CA5 1974), CERT.
PENDING, NO. 73 - 1510. 

AS THIS BRIEF DESCRIPTION INDICATES, THE HISTORY OF THE APPLICATION
OF WHARTON'S RULE TO CHARGES FOR CONSPIRACY TO VIOLATE 18 U.S.C. SEC.
1955 FULLY SUPPORTS THE FOURTH CIRCUIT'S OBSERVATION THAT "RATHER THAN
BEING A RULE, (IT) IS A CONCEPT, THE CONFINES OF WHICH HAVE BEEN
DELINEATED IN WIDELY DIVERSE FASHION BY THE COURTS."  UNITED STATES V.
BOBO, SUPRA, AT 986.  WITH THIS DIVERSITY OF VIEWS IN MIND, WE TURN TO
AN EXAMINATION OF THE HISTORY AND PURPOSES OF THE RULE. 

        III

        A 

TRADITIONALLY THE LAW HAS CONSIDERED CONSPIRACY AND THE COMPLETED
SUBSTANTIVE OFFENSE TO BE SEPARATE CRIMES.  CONSPIRACY IS AN INCHOATE
OFFENSE, THE ESSENCE OF WHICH IS AN AGREEMENT TO COMMIT AN UNLAWFUL
ACT.  SEE, E.G., UNITED STATES V. FEOLA, ANTE, P. 671; PINKERTON V.
UNITED STATES, 328 U.S. 640, 644 (1946); BRAVERMAN V. UNITED STATES,
317 U.S. 49, 53 (1942).  /10/ UNLIKE SOME CRIMES THAT ARISE IN A SINGLE
TRANSACTION, SEE HEFLIN V. UNITED STATES, 358 U.S. 415 (1959); PRINCE
V. UNITED STATES, 352 U.S. 322 (1957), THE CONSPIRACY TO COMMIT AN
OFFENSE AND THE SUBSEQUENT COMMISSION OF THAT CRIME NORMALLY DO NOT
MERGE INTO A SINGLE PUNISHABLE ACT.  PINKERTON V. UNITED STATES, SUPRA,
AT 643.  /11/ THUS, IT IS WELL RECOGNIZED THAT IN MOST CASES SEPARATE
SENTENCES CAN BE IMPOSED FOR THE CONSPIRACY TO DO AN ACT AND FOR THE
SUBSEQUENT ACCOMPLISHMENT OF THAT END.  FEOLA, SUPRA; CALLANAN V.
UNITED STATES, 364 U.S. 587 (1961); PINKERTON, SUPRA; CARTER V. MC
CLAUGHRY, 183 U.S. 365 (1902).  INDEED, THE COURT HAS EVEN HELD THAT
THE CONSPIRACY CAN BE PUNISHED MORE HARSHLY THAN THE ACCOMPLISHMENT OF
ITS PURPOSE.  CLUNE V. UNITED STATES, 159 U.S. 590 (1895). 

THE CONSISTENT RATIONALE OF THIS LONG LINE OF DECISIONS RESTS ON THE
VERY NATURE OF THE CRIME OF CONSPIRACY.  THIS COURT REPEATEDLY HAS
RECOGNIZED THAT A CONSPIRACY POSES DISTINCT DANGERS QUITE APART FROM
THOSE OF THE SUBSTANTIVE OFFENSE. 

     " THIS SETTLED PRINCIPLE DERIVES FROM THE REASON OF THINGS IN

  DEALING WITH SOCIALLY REPREHENSIBLE CONDUCT:  COLLECTIVE CRIMINAL

  AGREEMENT--PARTNERSHIP IN CRIME--PRESENTS A GREATER POTENTIAL

  THREAT TO THE PUBLIC THAN INDIVIDUAL DELICTS.  CONCERTED ACTION

  BOTH INCREASES THE LIKELIHOOD THAT THE CRIMINAL OBJECT WILL BE

  SUCCESSFULLY ATTAINED AND ECREASES THE PROBABILITY THAT THE

  INDIVIDUALS INVOLVED WILL DEPART FROM THEIR PATH OF CRIMINALITY. 

  GROUP ASSOCIATION FOR CRIMINAL PURPOSES OFTEN, IF NOT NORMALLY,

 MAKES POSSIBLE THE ATTAINMENT OF ENDS MORE COMPLEX THAN THOSE

  WHICH ONE CRIMINAL COULD ACCOMPLISH.  NOR IS THE DANGER OF A

  CONSPIRATORIAL GROUP LIMITED TO THE PARTICULAR END TOWARD WHICH

  IT HAS EMBARKED.  COMBINATION IN CRIME MAKES MORE LIKELY THE

  COMMISSION OF CRIMES UNRELATED TO THE ORIGINAL PURPOSE FOR WHICH

  THE GROUP WAS FORMED.  IN SUM, THE DANGER WHICH A CONSPIRACY

  GENERATES IS NOT CONVFINED TO THE SUBSTANTIVE OFFENSE WHICH IS

  THE IMMEDIATE AIM OF THE ENTERPRISE."  CALLANAN V. UNITED STATES,

  SUPRA, AT 593 - 594. 

AS MR. JUSTICE JACKSON, NO FRIEND OF THE LAW OF CONSPIRACY, SEE
KRULEWITCH V. UNITED STATES, 336 U.S. 440, 445 (1949) (CONCURRING
OPINION), OBSERVED:  " THE BASIC RATIONALE OF THE LAW OF CONSPIRACY IS
THAT A CONSPIRACY MAY BE AN EVIL IN ITSELF, INDEPENDENTLY OF ANY OTHER
EVIL IT SEEKS TO ACCOMPLISH."  DENNIS V. UNITED STATES, 341 U.S. 494,
573 (1951) (CONCURRING OPINION).  SEE ALSO UNITED STATES V. RABINOWICH,
238 U.S. 78, 88 (1915). 

        B 

THE HISTORICAL DIFFERENCE BETWEEN THE CONSPIRACY AND ITS END HAS LED
THIS COURT CONSISTENTLY TO ATTRIBUTE TO CONGRESS "A TACIT PURPOSE--  IN
THE ABSENCE OF ANY INCOMSISTENT EXPRESSION--TO MAINTAIN A LONG
ESTABLISHED DISTINCTION BETWEEN OFFENSES ESSENTIALLY DIFFERENT:  A
DISTINCTION WHOSE PRACTICAL IMPORTANCE IN THE CRIMINAL LAW IS NOT
EASILY OVERESTIMATED."  IBID.; CALLANAN, SUPRA, AT 594.  WHARTON'S RULE
ANNOUNCES AN EXCEPTION TO THIS GENERAL PRINCIPLE. 

THE RULE TRACES ITS ORIGIN TO THE DECISION OF THE PENNSYLVANIA
SUPREME COURT IN SHANNON V. COMMONWEALTH, 14 PA. 226 (1850), A CASE IN
WHICH THE COURT ORDERED DISMISSAL OF AN INDICTMENT ALLEGING CONSPIRACY
TO COMMIT ADULTERY THAT WAS BROUGHT AFTER THE STATE HAD FAILED TO
OBTAIN CONVICTION FOR THE SUBSTANTIVE OFFENSE.  PROMINENT AMONG THE
CONCERNS VOICED IN THE SHANNON OPINION IS THE POSSIBILITY THAT THE
STATE COULD FORCE THE DEFENDANT TO UNDERGO SUBSEQUENT PROSECUTION FOR A
LESSER OFFENSE AFTER FAILING TO PROVE THE GREATER.  THE SHANNON COURT'S
HOLDING REFLECTS THIS CONCERN, STATING THAT "WHERE CONCERT IS A
CONSTITUENT PART OF THE ACT TO BE DONE, AS IT IS IN FORNICATION AND
ADULTERY, A PARTY ACQUITTED OF THE MAJOR CANNOT BE INDICTED OF THE
MINOR."  ID., AT 227 - 228. 

WHARTON'S TREATISE FIRST REPORTED THE CASE AS ONE BASED ON
PRINCIPLES OF DOUBLE JEOPARDY, SEE F. WHARTON, CRIMINAL LAW 198 (2D ED.
1852), AND INDICATED THAT IT WAS LIMITED TO THAT CONTEXT.  /12/
SUBSEQUENTLY, HOWEVER, WHARTON CAME TO VIEW THE PRINCIPLE AS ONE OF
BROADER APPLICATION.  THE SEVENTH EDITION OF WHARTON'S TREATISE
REPORTED THE MORE GENERAL RULE WHICH IS REPEATED IN SIMILAR FORM
TODAY.  SHANNON V. COMMONWEALTH WAS SAID TO BE AN APPLICATION OF THE
PRINCIPLE RATHER THAN ITS SOURCE.  2 F. WHARTON, CRIMINAL LAW 634 (7TH
ED. 1874). 

THIS COURT'S PREVIOUS DISCUSSIONS OF WHARTON'S RULE HAVE NOT
ELABORATED UPON ITS PRECISE ROLE IN FEDERAL LAW.  IN MOST INSTANCES,
THE COURT SIMPLY HAS IDENTIFIED THE RULE AND DESCRIBED IT IN TERMS
SIMILAR TO THOSE USED IN WHARTON'S TREATISE.  BUT IN UNITED STATES V.
HOLTE, 236 U.S. 140 (1915), THE SOLE CASE IN WHICH THE COURT FELT
COMPELLED SPECIFICALLY TO CONSIDER THE APPLICABLITY OF WHARTON'S RULE,
IT DECLINED TO ADOPT AN EXPANSIVE DEFINITION OF ITS PARAMETERS.  IN
THAT CASE, WHARTON'S RULE WAS ADVANCED AS A BAR TO PROSECUTION OF A
FEMALE FOR CONSPIRACY TO VIOLATE THE MANN ACT.  REJECTING THAT
CONTENTION, THE COURT ADOPTED A NARROW CONSTRUCTION OF THE RULE THAT
FOCUSES ON THE STATUTORY REQUIREMENTS OF THE SUBSTANTIVE OFFENSE RATHER
THAN THE EVIDENCE OFFERED TO PROVE THOSE ELEMENTS AT TRIAL: 

" THE SUBSTANTIVE OFFENCE MIGHT BE COMMITTED WITHOUT THE WOMAN'S
CONSENT, FOR INSTANCE, IF SHE WERE DRUGGED OR TAKEN BY FORCE. 
THEREFORE THE DECISIONS THAT IT IS IMPOSSIBLE TO TURN THE CONCURRENCE
NECESSARY TO EFFECT CERTAIN CRIMES SUCH AS BIGAMY OR DUELLING INTO A
CONSPIRACY TO COMMIT THEM DO NOT APPLY."  ID., AT 145. 

WHARTON'S RULE FIRST EMERGED AT A TIME WHEN THE CONTOURS OF THE LAW
OF CONSPIRACY WERE IN THE PROCESS OF ACTIVE FORMULATION.  THE GENERAL
QUESTION WHETHER THE CONSPIRACY MERGED INTO THE COMPLETED FELONY
OFFENSE REMAINED FOR SOME TIME A MATTER OF UNCERTAIN RESOLUTION.  /13/
THAT ISSUE IS NOW SETTLED, HOWEVER, AND THE RULE CURRENTLY STANDS AS AN
EXCEPTION TO THE GENERAL PRINCIPLE THAT A CONSPIRACY AND THE
SUBSTANTIVE OFFENSE THAT IS ITS IMMEDIATE END DO NOT MERGE UPON PROOF
OF THE LATTER.  SEE PINKERTON V. UNITED STATES, 328 U.S. 640 (1946). 
IF THE RULE IS TO SERVE A RATIONAL PURPOSE IN THE CONTEXT OF THE MODERN
LAW OF CONSPIRACY, ITS ROLE MUST BE MORE PRECISELY IDENTIFIED. 

        C 

THIS COURT'S PRIOR DECISIONS INDICATE THAT THE BROADLY FORMULATED
WHARTON'S RULE DOES NOT REST ON PRINCIPLES OF DOUBLE JEOPARDY, SEE
PEREIRA V. UNITED STATES, 347 U.S. 1, 11 (1954); PINKERTON, SUPRA, AT
643 - 644.  /14/ INSTEAD, IT HAS CURRENT VITALITY ONLY AS A JUDICIAL
PRESUMPTION, TO BE APPLIED IN THE ABSENCE OF LEGISLATIVE INTENT TO THE
CONTRARY.  THE CLASSIC WHARTON'S RULE OFFENSES--ADULTERY, INCEST,
BIGAMY, DUELLING--ARE CRIMES THAT ARE CHARACTERIZED BY THE GENERAL
CONGRUENCE OF THE AGREEMENT AND THE COMPLETED SUBSTANTIVE OFFENSE.  THE
PARTIES TO THE AGREEMENT ARE THE ONLY PERSONS WHO PARTICIPATE IN
COMMISSION OF THE SUBSTANTIVE OFFENSE, /15/ AND THE IMMEDIATE
CONSEQUENCES OF THE CRIME REST ON THE PARTIES THEMSELVES RATHER THAN ON
SOCIETY AT LARGE.  SEE UNITED STATES V. BOBO, 477 F. 2D, AT 987. 
FINALLY, THE AGREEMENT THAT ATTENDS THE SUBSTANTIVE OFFENSE DOES NOT
APPEAR LIKELY TO POSE THE DISTINCT KINDS OF THREATS TO SOCIETY THAT THE
LAW OF CONSPIRACY SEEKS TO AVERT.  /16/ IT CANNOT, FOR EXAMPLE, READILY
BE ASSUMED THAT AN AGREEMENT TO COMMIT AN OFFENSE OF THIS NATURE WILL
PRODUCE AGREEMENTS TO ENGAGE IN A MORE GENERAL PATTERN OF CRIMINAL
CONDUCT.  COMPARE CALLANAN V. UNITED STATES, 364 U.S. 587 (1961);
UNITED STATES V. RABINOWICH, 238 U.S. 78 (1915). 

THE CONDUCT PROSCRIBED BY SEC. 1955 IS SIGNIFICANTLY DIFFERENT FROM
THE OFFENSES TO WHICH THE RULE TRADITIONALLY HAS BEEN APPLIED.  UNLIKE
THE CONSEQUENCES OF THE CLASSIC WHARTON'S RULE OFFENSES, THE HARM
ATTENDANT UPON THE COMMISSION OF THE SUBSTANTIVE OFFENSE IS NOT
RESTRICTED TO THE PARTIES TO THE AGREEMENT.  LARGE-SCALE GAMBLING
ACTIVITIES SEEK TO ELICIT THE PARTICIPATION OF ADDITIONAL PERSONS--THE
BETTORS--WHO ARE PARTIES NEITHER TO THE CONSPIRACY NOR TO THE
SUBSTANTIVE OFFENSE THAT RESULTS FROM IT.  MOREOVER, THE PARTIES
PROSECUTED FOR THE CONSPIRACY NEED NOT BE THE SAME PERSONS WHO ARE
PROSECUTED FOR COMMISSION OF THE SUBSTANTIVE OFFENSE.  AN ENDEAVOR AS
COMPLEX AS A LARGE-SCALE GAMBLING ENTERPRISE MIGHT INVOLVE PERSONS WHO
HAVE PLAYED APPRECIABLY DIFFERENT ROLES, AND WHOSE LEVEL OF CULPABILITY
VARIES SIGNIFICANTLY.  IT MIGHT, THEREFORE, BE APPROPRIATE TO PROSECUTE
THE OWNERS AND ORGANIZERS OF LARGE-SCALE GAMBLING OPERATIONS BOTH FOR
THE CONSPIRACY AND FOR THE SUBSTANTIVE OFFENSE BUT TO PROSECUTE THE
LESSER PARTICIPANTS ONLY FOR THE SUBSTANTIVE OFFENSE.  NOR CAN IT
FAIRLY BE MAINTAINED THAT AGREEMENTS TO ENTER INTO LARGE-SCALE GAMBLING
ACTIVITIES ARE NOT LIKELY TO GENERATE ADDITIONAL AGREEMENTS TO ENGAGE
IN OTHER CRIMINAL ENDEAVORS.  AS SHOWN IN PART IV HEREOF, THE
LEGISLATIVE HISTORY OF SEC. 1955 PROVIDES DOCUMENTED TESTIMONY TO THE
CONTRARY. 

WHARTON'S RULE APPLIES ONLY TO OFFENSES THAT REQUIRE CONCERTED
CRIMINAL ACTIVITY, A PLURALITY OF CRIMINAL AGENTS.  IN SUCH CASES, A
CLOSER RELATIONSHIP EXISTS BETWEEN THE CONSPIRACY AND THE SUBSTANTIVE
OFFENSE BECAUSE BOTH REQUIRE COLLECTIVE CRIMINAL ACTIVITY.  THE
SUBSTANTIVE OFFENSE THEREFORE PRESENTS SOME OF THE SAME THREATS THAT
THE LAW OF CONSPIRACY NORMALLY IS THOUGHT TO GUARD AGAINST, AND IT
CANNOT AUTOMATICALLY BE ASSUMED THAT THE LEGISLATURE INTENDED THE
CONSPIRACY AND THE SUBSTANTIVE OFFENSE TO REMAIN AS DISCRETE CRIMES
UPON CONSUMMATION OF THE LATTER.  /17/ THUS, ABSENT LEGISLATIVE INTENT
TO THE CONTRARY, THE RULE SUPPORTS A PRESUMPTION THAT THE TWO MERGE
WHEN THE SUBSTANTIVE OFFENSE IS PROVED.  /18/ 

BUT A LEGAL PRINCIPLE COMMANDS LESS RESPECT WHEN EXTENDED BEYOND THE
LOGIC THAT SUPPORTS IT.  IN THIS CASE, THE SIGNIFICANT DIFFERENCES IN
CHARACTERISTICS AND CONSEQUENCES OF THE KINDS OF OFFENSES THAT GAVE
RISE TO WHARTON'S RULE AND THE ACTIVITIES PROSCRIBED BY SEC. 1955
COUNSEL AGAINST ATTRIBUTING SIGNIFICANT WEIGHT TO THE PRESUMPTION THE
RULE ERECTS.  MORE IMPORTANT, AS THE RULE IS ESSENTIALLY AN AID TO THE
DETERMINATION OF LEGISLATIVE INTENT, IT MUST DEFER TO A DISCERNIBLE
LEGISLATIVE JUDGMENT.  WE TURN NOW TO THAT INQUIRY. 

IV 

THE BASIC PURPOSE OF THE ORGANIZED CRIME CONTROL ACT OF 1970, PUB.
L. NO. 91 - 452, 84 STAT. 922, 923, WAS "TO SEEK THE ERADICATION OF
ORGANIZED CRIME IN THE UNITED STATES BY STRENGTHENING THE LEGAL TOOLS
IN THE EVIDENCE-GATHERING PROCESS, BY ESTABLISHING NEW PENAL
PROHIBITIONS, AND BY PROVIDING ENHANCED SANCTIONS AND NEW REMEDIES TO
DEAL WITH THE UNLAWFUL ACTIVITIES OF THOSE ENGAGED IN ORGANIZED
CRIME."  THE CONTENT OF THE ACT REFLECTS THE DEDICATION WITH WHICH THE
LEGISLATURE PURSUED THIS PURPOSE.  IN ADDITION TO ENACTING PROVISIONS
TO FACILITATE THE DISCOVERY AND PROOF OF ORGANIZED CRIMINAL ACTIVITIES,
CONGRESS PASSED A NUMBER OF RELATIVELY SEVERE PENALTY PROVISIONS.  FOR
EXAMPLE, TITLE X, CODIFIED IN 18 U.S.C. SEC. 3575 - 3578, IDENTIFIES
FOR HARSHER SENTENCING TREATMENT CERTAIN "DANGEROUS SPECIAL OFFENDERS,"
AMONG THEM PERSONS WHO INITIATE, DIRECT, OR SUPERVISE PATTERNS OF
CRIMINAL CONDUCT OR CONSPIRACIES TO ENGAGE IN SUCH CONDUCT, AND PERSONS
WHO DERIVE SUBSTANTIAL PORTIONS OF THEIR INCOME FROM THOSE ACTIVITIES. 
/19/  SEC. 3575 (E). 

MAJOR GAMBLING ACTIVITIES WERE A PRINCIPAL FOCUS OF CONGRESSIONAL
CONCERN.  LARGE-SCALE GAMBLING ENTERPRISES WERE SEEN TO BE BOTH A
SUBSTANTIVE EVIL AND A SOURCE OF FUNDS FOR OTHER CRIMINAL CONDUCT.  SEE
S. REP. NO. 91 - 617, PP. 71 - 73 (1969).  /20/ TITLE VIII THUS WAS
ENACTED "TO GIVE THE FEDERAL GOVERNMENT A NEW SUBSTANTIVE WEAPON, A
WEAPON WHICH WILL STRIKE AT ORGANIZED CRIME'S PRINCIPAL SOURCE OF
REVENUE:  ILLEGAL GAMBLING."  ID., AT 71.  IN ADDITION TO DECLARING
THAT CERTAIN GAMBLING ACTIVITIES VIOLATE FEDERAL AS WELL AS STATE LAW,
18 U.S.C. SEC. 1955, TITLE VIII PROVIDES NEW PENALITIES FOR
CONSPIRACIES TO OBSTRUCT STATE LAW ENFORCEMENT EFFORTS FOR THE PURPOSE
OF FACILITATING THE CONDUCT OF THESE ACTIVITIES.  18 U.S.C. SEC. 1511. 

IN DRAFTING THE ORGANIZED CRIME CONTROL ACT OF 1970, CONGRESS
MANIFESTED ITS CLEAR AWARENESS OF THE DISTNICT NATURE OF A CONSPIRACY
AND THE SUBSTANTIVE OFFENSES THAT MIGHT CONSTITUTE ITS IMMEDIATE END. 
THE IDENTIFICATION OF "SPECIAL OFFENDERS" IN TITLE X SPEAKS BOTH TO
PERSONS WHO COMMIT SPECIFIC FELONIES DURING THE COURSE OF A PATTERN OF
CRIMINAL ACTIVITY AND TO THOSE WHO ENTER INTO CONSPIRACIES TO ENGAGE IN
PATTERNS OF CRIMINAL CONDUCT.  18 U.S.C. SEC. 3575 (E).  AND CONGRESS
SPECIFICALLY UTILIZED THE LAW OF CONSPIRACY TO DISCOURAGE ORGANIZED
CRIME'S CORRUPTION OF STATE AND LOCAL OFFICIALS FOR THE PURPOSE OF
FACILITATING GAMBLING ENTERPRISES.  18 U.S.C. SEC. 1511.  /21/ 

BUT THE SEC. 1955 DEFINITION OF "GAMBLING ACTIVITIES" POINTEDLY
AVOIDS REFERENCE OT CONSPIRACY OR TO AGREEMENT, THE ESSENTIAL ELEMENT
OF CONSPIRACY.  MOREOVER, THE LIMITED SEC. 1955 DEFINITION IS REPEATED
IN IDENTIFYING THE REACH OF SEC. 1511, A PROVISION THAT SPECIFICALLY
PROHIBITS CONSPIRACIES.  VIEWED IN THIS CONTEXT, AND IN LIGHT OF THE
NUMEROUS REFERENCES TO CONSPIRACIES THROUGHTOUT THE THEEXTENSIVE
CONSIDERATION OF THE ORGANIZED CRIME CONTROL ACT, WE THING THAT THE
LIMITED CONGRESSIONAL DEFINITION OF "GAMBLING ACTIVITIES" IN SEC. 1955
IS SIGNIFICANT.  THE ACT IS A CAREFULLY CRAFTED PIECE OF LEGISLATION. 
HAD CONGRESS INTENDED TO FORECLOSE THE POSSIBILITY OF PROSECUTING
CONSPIRACY OFFENSES UNDER SEC. 371 BY MERGING THEM INTO PRESECUTIONS
UNDER SEC. 1955, WE THINK IT WOULD HAVE SO INDICATED EXPLICITLY.  IT
CHOSE INSTEAD TO DEFINE THE SUBSTANTIVE OFFENSE PUNISHED BY SEC. 1955
IN A MANNER THAT FAILS SPECIFICALLY TO INVOKE THE CONCERNS WHICH
UNDERLIE THE LAW OF CONSPIRACY. 

NOR DO WE FIND MERIT TO THE ARGUMENT THAT THE CONGRESSIONAL
REQUIREMENT OF PARTICIPATION OF "FIVE OR MORE PERSONS" AS AN ELEMENT OF
THE SUBSTANTIVE OFFENSE UNDER SEC. 1955 REPRESENTS A LEGISLATIVE
ATTEMPT TO MERGE THE CONSPRIACY AND THE SUBSTANTIVE OFFENSE INTO A
SINGLE CRIME.  THE HISTORY OF THE ACT INSTEAD REVEALS THAT THIS
REQUIREMENT WAS DESIGNED TO RESTRICT FEDERAL INTVERVENTION TO CASES IN
WHICH FEDERAL INTERESTS ARE SUBSTANTIALLY IMPLICATED.  THE FINDINGS
ACCOMPANYING TITLE VIII, SEE NOTE FOLLOWING 18 U.S.C. SEC. 1511, WOULD
APPEAR TO SUPPORT THE ASSERTION OF FEDERAL JURISDICTION OVER ALL
ILLEGAL GAMBLING ACTIVITIES, CF. HEART OF ATLANTA MOTEL V. UNITED
STATES, 379 U.S. 241, 258 (1964); KATZENBACH V. MC CLUNG, 379 U.S. 294
(1964).  CONGRESS DID NOT HOWEVER, CHOOSE TO EXERCISE ITS POWER TO THE
FULLEST.  RECOGNIZING THAT GAMBLING ACTIVITIES NORMALLY ARE MATTERS OF
STATE CONCERN, CONGRESS INDICATED A DESIRE TO EXTEND FEDERAL CRIMINAL
JURISDICTION TO REACH ONLY "THOSE WHO ARE ENGAGED IN AN ILLICIT
GAMBLING BUSINESS OF MAJOR PROPORTIONS."  S. REP. NO. 91 - 617, P. 73
(1969).  IT ACCORDINGLY CONDITIONED THE APPLICATION OF SEC. 1955 ON A
FINDING THAT THE GAMBLING ACTIVITIES INVOLVE FIVE OR MORE PERSONS AND
THAT THEY REMAIN SUBSTANTIALLY IN OPERATION IN EXCESS OF 30 DAYS OR
ATTAIN GROSS REVENUES OF $2,000 IN A SINGLE DAY.  18 U.S.C. SEC. 1955
(B).  /22/ THUS THE REQUIREMENT OF "CONCERTED ACTIVITY" IN SEC. 1955
REFLECTS NO MORE THAN A CONCERN TO AVOID FEDERAL PROSECUTION OF SMALL
SCALE GAMBLING ACTIVITIES WHICH POSE A LIMITED THREAT TO FEDERAL
INTERESTS AND NORMALLY CAN BE COMBATED EFFECTIVELY BY LOCAL LAW
ENFORCEMENT EFFORTS. 

VIEWED IN THE CONTEXT OF THIS LEGISLATION, THERE SIMPLY IS NO BASIS
FOR RELYING ON A PRESUMPTION TO REACH A RESULT SO PLAINLY AT ODDS WIHT
CONGRESSIONAL INTENT.  WE THINK IT EVIDENT THAT CONGRESS INTENDED TO
RETAIN EACH OFFENSE AS AN "INDEPENDENT CURB" AVAILABLE FOR USE IN THE
STRATEGY AGAINST ORGAINIZED CRIME.  GORE V. UNITED STATES, 357 U.S.
386, 389 (1958).  WE CONCLUDE, THEREFORE, THAT THE HISTORY AND
STRUCTURE OF THE ORGANIZED CRIME CONTROL ACT OF 1970 MANIFEST A CLEAR
AND UNMISTAKABLE LEGISLATIVE JUDGMENT THAT MORE THAN OUTWEIGHTS ANY
PRESUMPTION OF MERGER BETWEEN THE CONSPIRACY TO VIOLATE SEC. 1955 AND
THE CONSUMMATION OF THAT SUBSTANTIVE OFFENSE. 

        IV 

IN EXPRESSING THESE CONCLUSIONS WE DO NOT IMPLY THAT THE DISTINCT
NATURE OF THE CRIMES OF CONSPIRACY TO VIOLATE AND VIOLATION OF SEC.
1955 SHOULD PROMPT PROSECUTORS TO SEEK SEPARATE CONVICTIONS IN EVERY
CASE, OR JUDGES NECESSARILY TO SENTENCE IN A MANNER THAT IMPOSES AN
ADDITIONAL SANCTION FOR CONSPIRACY TO VIOLATE SEC. 1955 AND THE
CONSUMMATION OF THAT END.  THOSE DECISIONS FALL WITHIN THE SOUND
DISCRETION OF EACH, AND SHOULD BE RENDERED IN ACCORDANCE WITH THE FACTS
AND CIRCUMSTANCES OF A PARTICULAR CASE.  WE CONCLUDE ONLY THAT CONGRESS
INTENDED TO RETAIN THESE TRADITIONAL OPTIONS.  NEITHER WHARTON'S RULE
NOR THE HISTORY AND STRUCTURE OF THE ORGANIZED CRIME CONTROL ACT OF
1970 PERSUADE US TO THE CONTRARY. 

                                  AFFIRMED. 

/1/ THE GENERAL CONSPIRACY STATUTE UNDER WHICH THIS ACTION WAS
BROUGHT, 18 U.S.C. SEC. 371, PROVIDES IN PERTINENT PART: 

" 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.  . . ." 

/2/ TITLE 18 U.S.C. SEC. 1955 (1970 ED. AND SUPP. I) PROVIDES IN
PERTINENT PART: 

"(A) WHOEVER CONDUCTS, FINANCES, MANAGES, SUPERVISES, DIRECTS, OR
OWNS ALL OR PART OF AN ILLEGAL GAMBLING BUSINESS SHALL BE FINED NOT
MORE THAN $20,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH. 

"(B) AS USED IN THIS SECTION--, 

"(1) 'ILLEGAL GAMBLING BUSINESS' MEANS A GAMBLING BUSINESS WHICH--, 

"(I) IS A VIOLATION OF THE LAW OF A STATE OR POLITICAL SUBDIVISION
IN WHICH IT IS CONDUCTED; 

"(II) INVOLVES FIVE OR MORE PERSONS WHO CONDUCT, FINANCE, MANAGE,
SUPERVISE, DIRECT, OR OWN ALL OR PART OF SUCH BUSINESS; AND 

"(III) HAS BEEN OR REMAINS IN SUBSTANTIALLY CONTINUOUS OPERATION FOR
A PERIOD IN EXCESS OF THIRTY DAYS OR HAS A GROSS REVENUE OF $2,000 IN
ANY SINGLE DAY. 

"(2) 'GAMBLING' INCLUDES BUT IS NOT LIMITED TO POOL-SELLING, BOOK
MAKING, MAINTAINING SLOT MACHINES, ROULETTE WHEELS OR DICE TABLES, AND
CONDUCTING LOTTERIES, POLICY, BOLITA OR NUMBERS GAMES, OR SELLING
CHANCES THEREIN . . . ." 

/3/ PETITIONER IANNELLI ADDITIONALLY WAS CONVICTED OF MAILING
GAMBLING PARAPHERNALIA, 18 U.S.C. SEC. 1302, AND USING A FICTITIOUS
NAME FOR THE PURPOSE OF CONDUCTING UNLAWFUL BOOKMAKING ACTIVITIES BY
MEANS OF THE POSTAL SERVICE.  18 U.S.C. SEC. 1342. 

/4/ ON THE SUBSTANTIVE COUNTS, EACH PETITIONER WAS FINED SENTENCED
TO IMPRISONMENT AND SUBSEQUENT TERM OF PROBATION.  EACH PETITIONER ALSO
WAS SENTENCED TO AN ADDITIONAL PROBATIONARY PERIOD FOR THE CONSPIRACY
CONVICTION.  PETITIONER IANNELLI'S PROBATIONARY SENTENCE IS EQUAL IN
LENGTH TO THAT IMPOSED FOR THE SUBSTANTIVE VIOLATIONS AND IS TO BE
SERVED CONCURRENTLY.  THE PROBATIONARY SENTENCE IMPOSED ON EACH OF THE
OTHER PETITIONERS FOR THE CONSPIRACY OFFENSE LIKEWISE IS TO BE SERVED
CONCURRENTLY WITH THE PROBATIONARY TERM IMPOSED FOR THE SEC. 1955
VIOLATION.  IN THEIR CASES, HOWEVER, THE PROBATIONARY TERM FOR THE
CONSPIRACY OFFENSE EXCEEDS THAT IMPOSED FOR VIOLATION OF SEC. 1955. 

/5/ THE CURRENT EDITION OF WHARTON'S TREATISE STATES THE RULE MORE
SIMPLY: 

" AN AGREEMENT BY TWO PERSONS TO COMMIT A PARTICULAR CRIME CANNOT BE
PROSECUTED AS A CONSPIRACY WHEN THE CRIME IS OF SUCH A NATURE AS TO
NECESSARILY REQUIRE THE PARTICIPATION OF TWO PERSONS FOR ITS
COMMISSION."  1 R. ANDERSON, WHARTON'S CRIMINAL LAW AND PROCEDURE SEC.
89, P. 191 (1957). 

/6/ SEE, E.G., PEOPLE V. WETTENGEL, 98 COLO. 193, 198, 58 P. 2D 279,
281 (1935); PEOPLE V. PURCELL, 304 ILL. APP. 215, 217, 26 N.E. 2D 153,
154 (1940); ROBINSON V. STATE, 184 A. 2D 814, 820 (MD. CT. APP. 1962). 

/7/ SEE, E.G., UNITED STATES V. NEW YORK C. & H.R.R. CO., 146 F.
298, 303 - 305 (CC SDNY 1906), AFF'D, 212 U.S. 481 (1909); UNITED
STATES V. ZEULI, 137 F. 2D 845 (CA2 1943); UNITED STATES V. DIETRICH,
126 F. 659, 667 (CC NEB. 1904); UNITED STATES V. SAGER, 49 F. 2D 725,
727 (CA2 1931). 

/8/ THE COURT'S MOST COMPLETE DESCRIPTION OF THE RULE APPEARS IN
GEBARDI V. UNITED STATES, 287 U.S. 112, 121 - 122 (1932):  " OF THIS
CLASS OF CASES WE SAY THAT THE SUBSTANTIVE OFFENSE CONTEMPLATED BY THE
STATUTE ITSELF INVOLVES THE SAME COMBINATION OR COMMUNITY OF PURPOSE OF
TWO PERSONS ONLY WHICH IS PROSECUTED HERE AS COMSPIRACY . . . . (T)
HOSE DECISIONS . . . HOLD, CONSISTENTLY WITH THE THEORY UPON WHICH
CONSPIRACIES ARE PUNISHED, THAT WHERE IT IS IMPOSSIBLE UNDER ANY
CIRCUMSTANCES TO COMMIT THE SUBSTANTIVE OFFENSE WITHOUT COOPERATIVE
ACTION, THE PRELIMINARY AGREEMENT BETWEEN THE SAME PARTIES TO COMMIT
THE OFFENSE IS NOT AN INDICTABLE CONSPIRACY EITHER AT COMMON LAW . . .
OR UNDER THE FEDERAL STATUTE."  (CITATIONS OMITTED.)  SEE ALSO
PINKERTON V. UNITED STATES, 328 U.S. 640, 642 (1946); UNITED STATES V.
KATZ, 271 U.S. 354, 355 (1926); UNITED STATES V. HOLTE, 236 U.S. 140,
145 (1915).     /9/ THIS APPEARS TO REPRESENT A DEPARTURE FROM THE
SECOND CIRCUIT'S EARLIER VIEW.  THE CONSPIRACY CHARGE DISMISSED IN
UNITED STATES V. SAGER, 49 F. 2D 725 (CA2 1931), INVOLVED AGREEMENTS BY
MORE THAN TWO PERSONS TO COMMIT SUBSTANTIVE OFFENSES THAT COULD HAVE
BEEN CONSUMMATED BY ONLY TWO.  IN THAT CASE, HOWEVER, THE SECOND
CIRCUIT DETERMINED THAT WHARTON'S RULE PRECLUDED INDICTMENT FOR BOTH
OFFENSES. 

/10/ THE AGREEMENT NEED NOT BE SHOWN TO HAVE BEEN EXPLICIT.  IT CAN
INSTEAD BE INFERRED FROM THE FACTS AND CIRCUMSTANCES OF THE CASE.  SEE
DIRECT SALES CO. V. UNITED STATES, 319 U.S. 703, 711 - 713 (1943).  IN
SOME CASES RELIANCE ON SUCH EVIDENCE PERHAPS HAS TENDED TO OBSCURE THE
BASIC FACT THAT THE AGREEMENT IS THE ESSENTIAL EVIL AT WHICH THE CRIME
OF CONSPIRACY IS DIRECTED.  SEE NOTE, DEVELOPMENTS IN THE LAW--CRIMINAL
CONSPIRACY, 72 HARV. L. REV. 920, 933 - 934 (1959).  NONETHELESS,
AGREEMENT REMAINS THE ESSENTIAL ELEMENT OF THE CRIME, AND SERVES TO
DISTINGUISH CONSPIRACY FROM AIDING AND ABETTING WHICH, ALTHOUGH OFTEN
BASED ON AGREEMENT, DOES NOT REQUIRE PROOF OF THAT FACT, SEE PEREIRA V.
UNITED STATES, 347 U.S. 1, 11 (1954), AND FROM OTHER SUBSTANTIVE
OFFENSES AS WELL.  ID., AT 11 - 12. 

/11/ THIS WAS NOT ALWAYS THE CASE.  UNDER THE EARLY COMMON LAW, A
CONSPIRACY, WHICH WAS A MISDEMEANOR, WAS CONSIDERED TO MERGE INTO THE
COMPLETED FELONY THAT WAS ITS OBJECT.  THAT RULE WAS BASED ON THE
SIGNIFICANT PROCEDURAL DIFFERENCES THEN EXISTING BETWEEN FELONY AND
MISDEMEANOR TRIALS.  AS THE PROCEDURAL DISTINCTIONS DIMINISHED, THE
MERGER CONCEPT LOST ITS FORCE AND EVENTUALLY DISAPPEARED.  SEE
GENERALLY CALLANAN V. UNITED STATES, 364 U.S. 587, 589 - 590 (1961),
AND SOURCES CITED THEREIN. 

/12/ THE SIXTH EDITION OF WHARTON'S TREATISE REPORTED THE PRINCIPLE
OF SHANNON V. COMMONWEALTH, 14 PA. 226 (1850), IN THE FOLLOWING MANNER:
" IT HAS BEEN RECENTLY HELD IN PENNSYLVANIA, THAT NO INDICTMENT LIES
FOR A CONSPIRACY BETWEEN A MAN AND A WOMAN TO COMMIT ADULTERY.  IT WAS
SAID BY THE LEARNED JUDGE WHO TRIED THE CASE, THAT WHERE CONCERT IS THE
ESSENTIAL INGREDIENT TO THE ACT, THERE IS NO CONSPIRACY; BUT FROM THE
PECULIAR CIRCUMSTANCES OF THE CASE, IT IS CLEAR THAT THIS AUTHORITY
CANNOT BE USED BEYOND THE CLASS OF CASES TO WHICH IT BELONGS."  3 F.
WHARTON, CRIMINAL LAW SEC. 2321, P. 78 (6TH ED. 1868). 

/13/ AS PREVIOUSLY NOTED, THE GENERAL RULE IN THE EARLY COMMON LAW
WAS THAT THE CONSPIRACY MERGED WITH THE FELONY UPON CONSUMMATION OF THE
LATTER.  THUS, AN INDICTMENT THAT CHARGED CONSPIRACY IN TERMS
INDICATING THAT THE FELONY ACTUALLY HAD BEEN COMMITTED WAS CONSIDERED
INVALID.  SEE H. CARSON, THE LAW OF CRIMINAL CONSPIRACIES AND
AGREEMENTS AS FOUND IN THE AMERICAN CASES, PUBLISHED IN R. WRIGHT, THE
LAW OF CRIMINAL CONSPIRACIES AND AGREEMENTS 191 (1887).  WHEN IT WAS
CLEAR THAT THE FELONY HAD BEEN PERPETRATED, CARSON CONSIDERED A
CONSPIRACY INDICTMENT TO BE "FUTILE."  IBID. 

WHARTON'S TREATISES LIKEWISE RECOGNIZED THE DIFFICULTY POSED BY THE
CONCEPT OF MERGER OF THE FELONY AND THE CONSPIRACY TO COMMIT THAT
OFFENSE.  THE SEVENTH EDITION OF THE TREATISE NOTES THAT "(THE
TECHNICAL RULE OF THE OLD COMMON LAW PLEADERS, THAT A MISDEMEANOR
ALWAYS SINKS INTO A FELONY WHEN THE TWO MEET" HAD BEEN APPLIED TO THE
LAW OF CONSPIRACY.  2 F. WHARTON, CRIMINAL LAW SEC. 2294, P. 637 (7TH
ED. 1874).  WHARTON WAS MORE CRITICAL OF THIS CONCEPT THAN CARSON,
HOWEVER, OBSERVING THAT THE RULE WAS ONE "WITH VERY LITTLE SUBSTANTIAL
REASON."  IBID.  HE DISCUSSED APPROVINGLY ENGLISH AND AMERICAN CASES
THAT WERE BEGINNING TO REFLECT A NARROW VIEW OF THE MERGER DOCTRINE IN
THE LAW OF CONSPIRACY AND TO INDICATE THAT THE CONSPIRACY MIGHT BE
PURSUED AS AN INDEPENDENT OFFENSE EVEN WHEN THE FELONY WAS COMMITTED. 
ID., AT 638 - 639.  WHARTON SUBSEQUENTLY INDICATED THAT THE PROPER
SENTENCING DISPOSITION IN A CASE OF CONVICTION FOR BOTH OFFENSES WAS TO
APPORTION THE PENALTY BETWEEN THE TWO.  2 F. WHARTON, CRIMINAL LAW SEC.
1344, P. 198 (8TH ED. 1880), QUOTING FROM R. V. BUTTON, 11 Q.B. (AD. &
E., N.S.)  29, 116 ENG. REP. 720 (1848). 

/14/ IN A PROPER CASE, THIS COURT'S OPINION IN ASHE V. SWENSON, 397
U.S. 436 (1970), CAN AFFORD PROTECTION AGAINST REPROSECUTION FOLLOWING
ACQUITTAL, A CONCERN EXPRESSED BY THE PENNSYLVANIA SUPREME COURT IN
SHANNON. 

/15/ AN EXCEPTION TO THE RULE GENERALLY IS THOUGHT TO APPLY IN THE
CASE IN WHICH THE CONSPIRACY INVOLVES MORE PERSONS THAN ARE REQUIRED
FOR COMMISSION OF THE SUBSTANTIVE OFFENSE.  FOR EXAMPLE, WHILE THE TWO
PERSONS WHO COMMIT ADULTERY CANNOT NORMALLY BE PROSECUTED BOTH FOR THAT
OFFENSE AND FOR CONSPIRACY TO COMMIT IT, THE THIRD-PARTY EXCEPTION
WOULD PERMIT THE CONSPIRACY CHARGE WHERE A "MATCHMAKER"--THE THIRD
PARTY--HAD CONSPIRED WITH THE PRINCIPALS TO ENCOURAGE COMMISSION OF THE
SUBSTANTIVE OFFENSE.  SEE 1 R. ANDERSON, WHARTON'S CRIMINAL LAW AND
PROCEDURE SEC. 89, P. 193 (1957); STATE V. CLEMENSON, 123 IOWA 524,
526, 99 N.W. 139 (1904).  THE RATIONALE SUPPORTING THIS EXCEPTION
APPEARS TO BE THAT THE ADDITION OF A THIRD PARTY ENHANCES THE DANGERS
PRESENTED BY THE CRIME.  THUS, IT IS THOUGHT THAT THE LEGISLATURE WOULD
NOT HAVE INTENDED TO PRECLUDE PUNISHMENT FOR A COMBINATION OF GREATER
DIMENSION THAN THAT REQUIRED TO COMMIT THE SUBSTANTIVE OFFENSE.  SEE
COMMENT, GAMBLING UNDER THE ORGANIZED CRIME CONTROL ACT:  WHARTON'S
RULE AND THE ODDS ON CONSPIRACY, 59 IOWA L. REV. 452, 460 (1973); NOTE,
DEVELOPMENTS IN THE LAW, SUPRA, N. 10, AT 956. 

OUR DETERMINATION THAT CONGRESS AUTHORIZED PROSECUTION AND
CONVICTION FOR BOTH OFFENSES IN ALL CASES, SEE PART IV, INFRA, MAKES IT
UNNECESSARY TO DECIDE WHETHER THE EXCEPTION TO WHARTON'S RULE COULD
PROPERLY BE APPLIED TO CONSPIRACIES TO VIOLATE SEC. 1955 INVOLVING MORE
THAN FIVE PERSONS.  SEE SUPRA, AT 775.  WE NOTE, HOWEVER, THAT THE
STATUTE AND ITS LEGISLATIVE HISTORY SEEM TO SUGGEST THAT IT COULD NOT. 
BY ITS TERMS, SEC. 1955 REACHES GAMBLING ACTIVITIES INVOLVING "FIVE OR
MORE PERSONS."  MOREOVER, THE LEGISLATIVE HISTORY OF THE STATUTE
INDICATES THAT CONGRESS ASSUMED THAT IT WOULD GENERALLY BE APPLIED IN
CASES IN WHICH MORE THAN THE STATUTORY MINIMUM NUMBER WERE INVOLVED. 
SEE N. 21, INFRA.  IT THUS WOULD SEEM ANOMALOUS TO CONCLUDE THAT
CONGRESS INTENDED THE SUBSTANTIVE OFFENSE TO SUBSUME THE CONSPIRACY IN
ONE CASE BUT NOT IN THE OTHER. 

/16/ COMMENTATORS WHO HAVE EXAMINED THE RULE HAVE IDENTIFIED ITS
MAJOR UNDERLYING PREMISE TO BE THAT AGREEMENTS TO COMMIT CRIMES TO
WHICH IT APPLIES DO NOT SEEM TO PRESENT THE DISTINCT DANGERS THAT THE
LAW OF CONSPIRACY SEEKS TO AVERT.  SEE COMMENT, GAMBLING UNDER THE
ORGANIZED CRIME CONTROL ACT, SUPRA, N. 15, AT 456; NOTE, DEVELOPMENTS
IN THE LAW, SUPRA, N. 10, AT 955.  THE SAME CONSIDERATION IS ALSO
APPARENT IN SHANNON V. COMMONWEALTH, 14 PA., AT 227.  AS CHIEF JUSTICE
GIBSON THERE NOTED:  " IF CONFEDERACY CONSTITUTED CONSPIRACY, WITHOUT
REGARD TO THE QUALITY OF THE ACT TO BE DONE, A PARTY MIGHT INCUR THE
GUILT OF IT BY HAVING AGREED TO BE THE PASSIVE SUBJECT OF A BATTERY,
WHICH DID NOT INVOLVE HIM IN A BREACH OF THE PEACE.  BY SUCH
PRECONCERTED ENCOUNTERS, IT HAS BEEN SAID, A REPUTATION FOR PROWESS IS
SOMETIMES PURCHASED BY GENTLEMENT OF THE FANCY.  IN THE SAME WAY THERE
MIGHT BE A CONSPIRACY TO COMMIT SUICIDE BY DROWNING OR HANGING IN
CONCERT, ACCORDING TO THE METHOD OF THE PARISIAN ROUES, THOUGH NO ONE
COULD BE INDICTED IF THE FELONY WERE COMMITTED.  IT MAY BE SAID, SUCH
CONSPIRACIES ARE RIDICULOUS AND IMPROBABLE.  BUT NOTHING IS MORE
RIDICULOUS THAN A CONSPIRACY TO COMMIT ADULTERY--WERE WE NOT BOUND TO
TREAT IT WITH BECOMING GRAVITY, IT MIGHT PROVOKE A SMILE--OR MORE
IMPORBABLE THAN THAT THE PARTIES WOULD DELIBERATELY POSTPONE AN
OPPORTUNITY TO APPEASE THE MOST UNRULY OF THEIR APPETITES.  THESE ARE
SUBTILE PREMISE FOR A LEGAL CONCLUSION; BUT THEIR SUBTILTY IS IN THE
ANALYSIS OF THE PRINCIPLE, NOT IN THE MANNER OF TREATING IT." 

/17/ THE TEST ARTICULATED IN BLOCKBURGER V. UNITED STATES, 284 U.S.
299 (1932), SERVES A GENERALLY SIMILAR FUNCTION OF IDENTIFYING
CONGRESSIONAL INTENT TO IMPOSE SEPARATE SANCTIONS FOR MULTIPLE OFFENSES
ARISING IN THE COURSE OF A SINGLE ACT OR TRANSACTION.  IN DETERMINING
WHETHER SEPARATE PUNISHMENT MIGHT BE IMPOSED, BLOCKBURGER REQUIRES THAT
COURTS EXAMINE THE OFFENSES TO ASCERTAIN "WHETHER EACH PROVISION
REQUIRES PROOF OF A FACT WHICH THE OTHER DOES NOT."  ID., AT 304.  AS
BLOCKBURGER AND OTHER DECISIONS APPLYING ITS PRINCIPLE REVEAL, SEE,
E.G., GORE V. UNITED STATES, 357 U.S. 386 (1958); AMERICAN TOBACCO CO.
V. UNITED STATES, 328 U.S. 781, 788 - 789 (1946), THE COURT'S
APPLICATION OF THE TEST FOCUSES ON THE STATUTORY ELEMENTS OF THE
OFFENSE.  IF EACH REQUIRES PROOF OF A FACT THAT THE OTHER DOES NOT, THE
BLOCKBURGER TEST IS SATISFIED, NOTWITHSTANDING A SUBSTANTIAL OVERLAP IN
THE PROOF OFFERED TO ESTABLISH THE CRIMES.  SEE GORE V. UNITED STATES,
SUPRA.  WE THINK THAT THE BLOCKBURGER TEST WOULD BE SATISFIED IN THIS
CASE.  THE ESSENCE OF THE CRIME OF CONSPIRACY IS AGREEMENT, SEE, E.G.,
PEREIRA V. UNITED STATES, 347 U.S., AT 11 - 12; BRAVERMAN V. UNITED
STATES, 317 U.S. 49, 53 (1942); MORRISON V. CALIFORNIA, 291 U.S. 82, 92
- 93 (1934), AN ELEMENT NOT CONTAINED IN THE STATUTORY DEFINITION OF
THE SEC. 1955 OFFENSE.  IN A SIMILAR FASHION, PROOF OF VIOLATION OF
SEC. 1955 REQUIRES ESTABLISHMENT OF A FACT NOT REQUIRED FOR CONVICITON
FOR CONSPIRACY TO VIOLATE THAT STATUTE.  TO ESTABLISH VIOLATION OF SEC.
1955 THE PROSECUTION MUST PROVE THAT THE DEFENDANTS ACTUALLY DID
"CONDUCT, FINANCE, MANAGE, SUPERVISE, DIRECT, OR OWN ALL OR PART OF AN
ILLEGAL GAMBLING BUSINESS."  SEC.  1955 (A).  THE OVERT ACT REQUIREMENT
IN THE CONSPIRACY STATUTE CAN BE SATISFIED MUCH MORE EASILY.  INDEED,
THE ACT CAN BE INNOCENT IN NATURE, PROVIDED IT FURTHERS THE PURPOSE OF
THE CONSPIRACY.  SEE YATES V. UNITED STATES, 354 U.S. 298, 333 - 334
(1957); BRAVERMAN, SUPRA. 

/18/ WE DO NOT CONSIDER INITIAL DISMISSAL OF THE CONSPIRACY CHARGE
TO BE REQUIRED IN SUCH A CASE.  WHEN BOTH CHARGES ARE CONSIDERED AT A
SINGLE TRIAL, THE REAL PROBLEM IS THE AVOIDANCE OF DUAL PUNISHMENT. 
THIS PROBLEM IS ANALOGOUS TO THAT PRESENTED BY THE THREAT OF CONVICITON
FOR A GREATER AND A LESSER INCLUDED OFFENSE, AND SHOULD BE TREATED IN A
SIMILAR MANNER.  8 J. MOORE, FEDERAL PRACTICE 31.03 (2D ED. 1975).  CF.
COMMENT, GAMBLING UNDER THE ORGANIZED CRIME CONTROL ACT, 59 IOWA L.
REV., SUPRA, N. 15, AT 461 - 464. 

/19/ ADDITIONALLY, TITLE IX, CODIFIED IN 18 U.S.C. SEC. 1961 - 1968,
SEEKS TO PREVENT THE INFILTRATION OF LEGITIMATE BUSINESS OPERATIONS
AFFECTING INTERSTATE COMMERCE BY INDIVIDUALS WHO HAVE OBTAINED
INVESTMENT CAPITAL FROM A PATTERN OF RECKETEERING ACTIVITY.  SEE SEC.
1962.  TITLE IX PROVIDES PENALTIES FOR SUCH CONDUCT, SEC. 1963, AND
ALSO AFFORDS CIVIL REMEDIES FOR ITS PREVENTION AND CORRECTION,
INCLUDING PROVISIONS PERMITTING UNITED STATES DISTRICT COURTS REQUIRE
DIVESTITURE OF INTERESTS SO ACQUIRED AND IMPOSE REASONABLE RESTRICTIONS
ON THE FUTURE NVESTMENT ACTIVITIES OF PERSONS IDENTIFIED BY THE
STATUTE.  SEC. 1964. 

/20/ " LAW ENFORCEMENT OFFICIALS AGREE ALMOST UNANIMOUSLY THAT
GAMBLING IS THE GREATEST SOURCE OF REVENUE FOR ORGANIZED CRIME.  IT
RANGES FROM LOTTERIES, SUCH AS 'NUMBER' . . . TO OFF-TRACK HORSE
BETTING . . . . IN LARGE CITIES WHERE ORGANIZED CRIMINAL GROUPS EXIST,
VERY FEW OF THE GAMBLING OPERATORS ARE INDEPENDENT OF A LARGE
ORGANIZATION.  . . . 

" MOST LARGE-CITY GAMBLING IS ESTABLISHED OR CONTROLLED BY ORGANIZED
CRIME MEMBERS THROUGH ELABORATE HIERARCHIES. 

        * * * * * 

" THERE IS NO ACCURATE WAY OF ASCERTAINING ORGANIZED CRIME'S GROSS
REVENUE FROM GAMBLING IN THE UNITED STATES.  ESTIMATES OF THE ANNUAL
INTAKE HAVE VARIED FROM $7 TO $50 BILLION.  LEGAL BETTING AT RACETRACKS
REACHES A GROSS ANNUAL FIGURE OF ALMOST $5 BILLION, AND MOST
ENFORCEMENT OFFICIALS BELIEVE THAT ILLEGAL WAGERING ON HORSE RACES,
LOTTERIES, AND SPORTING EVENTS TOTALS AT LEAST $20 BILLION EACH YEAR. 
ANALYSIS OF ORGANIZED CRIMINAL BETTING OPERATIONS INDICATES THAT THE
PROFIT IS AS HIGH AS ONE-THIRD OF GROSS REVENUE--OR $6 TO $7 BILLION
EACH YEAR.  WHILE THE COMMISSION CANNOT JUDGE THE ACCURACY OF THESE
FIGURES, EVEN THE MOST CONSERATIVE ESTIMATES PLACE SUBSTANTIAL CAPITAL
IN THE HANDS OF ORGANIZED CRIME LEADERS."  REPORT OF THE PRESIDENT'S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE
CHALLENGE OF CRIME IN A FREE SOCIETY OF 188 - 189 (1967). 

/21/ THE SENATE INITIALLY CONTEMPLATED A MORE SWEEPING PROHIBITION. 
THE SENATE VERSION OF THAT PROVISION DECLARED IT UNLAWFUL FOR "TWO OR
MORE PERSONS TO PARTICIPATE IN A SCHEME TO OBSTRUCT THE ENFORCEMENT OF
THE CRIMINAL LAWS OF A STATE OR POLITICAL SUBDIVISION THEREOF, WITH THE
INTENT TO FACILITATE AN ILLEGAL GAMBLING BUSINESS."  S. 30, 91ST CONG.,
1ST SESS., SEC. 802 (1969).  DISCUSSIONS IN THE SENATE HEARINGS REVEAL
THAT THIS LANGUAGE WAS INTENTIONALLY CHOSEN TO OBTAIN THE BROADEST
POSSIBLE COVERAGE FOR THAT PROVISION.  IT WAS HOPED THAT PROHIBITING
"SCHEMES" RATHER THAN "CONSPIRACIES" WOULD ENABLE THE PROSECUTION TO
OBTAIN CONVICITONS IN CASES IN WHICH THEY MIGHT BE UNABLE TO ESTABLISH
THE REQUISITE KNOWLEDGE OF THE MAJOR MEMBERS OF THE ENTERPRISE REQUIRED
FOR A CONSPIRACY CONVICTION.  SEE HEARINGS ON S. 30 BEFORE THE
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF THE SENATE COMMITTEE ON
THE JUDICIARY, 91ST CONG., 1ST SESS., 397 (1969).  THE SENATE VERSION
WAS CRITICIZED IN HEARINGS BEFORE THE HOUSE JUDICIARY SUBCOMMITTEE,
WHERE IT WAS ASSERTED THAT THIS LANGUAGE WAS TOO VAGUE.  SEE HEARINGS
ON S. 30 BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 91ST CONG., 2D SESS., SER.  27, P. 498 (1970).  THE BILL
REPORTED FROM THE HOUSE JUDICIARY COMMITTEE PROHIBITED CONSPIRACIES
RATHER THAN SCHEMES, AND THAT VERSION SUBSEQUENTLY WAS ENACTED INTO
LAW.     /22/ CONGRESS WAS AWARE THAT THE IMPOSITION OF THIS
REQUIREMENT WOULD HAVE THE PRACTICAL EFFECT OF LIMITING FEDERAL
CRIMINAL JURISDICTION TO EVEN LARGER GAMBLING ENTERPRISES THAN THOSE
IDENTIFIED IN SEC. 1955. 

" IT IS ANTICIPATED THAT CASES IN WHICH THIS STANDARD CAN BE MET
WILL ORDINARILY INVOLVE BUSINESS-TYPE GAMBLING OPERATIONS OF
CONSIDERABLY GREATER MAGNITUDE THAN THIS DEFINITION WOULD INDICATE, . .
. BECAUSE IT IS USUALLY POSSIBLE TO PROVE ONLY A RELATIVELY SMALL
PROPORTION OF THE TOTAL OPERATIONS OF A GAMBLING ENTERPRISE.  THUS, THE
LEGISLATION WOULD IN PRACTICE NOT APPLY TO GAMBLING THAT IS SPORADIC OR
OF INSIGNIFICANT MONETARY PROPORTIONS.  IT WILL REACH ONLY THOSE WHO
PREY SYSTEMATICALLY UPON OUR CITIZENS AND WHOSE SYNDICATED OPERATIONS
ARE SO CONTINUOUS AND SO SUBSTANTIAL AS TO BE A MATTER OF NATIONAL
CONCERN."  S. REP. NO. 91 - 617, P. 73 (1969). 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE EIGHT PETITIONERS IN THIS CASE WERE TRIED, ALONG WITH OTHER
CODEFENDANTS, ON A MULTIPLE-COUNT INDICTMENT ALLEGING THE COMMISSION OF
VARIOUS OFFENSES IN CONNECTION WITH GAMBLING ACTIVITIES.  PETITIONERS
WERE CONVICTED BOTH OF PARTICIPATING IN AN "ILLEGAL GAMBLING BUSINESS,"
18 U.S.C. SEC. 1955, AND OF CONSPIRING TO COMMIT THAT OFFENSE, 18
U.S.C. SEC. 371.  ON BOTH STATUTORY AND CONSTITUTIONAL GROUNDS, I WOULD
HOLD THAT THE SIMULATANEOUS CONVICITONS UNDER BOTH STATUTES CANNOT
STAND. 

        I 

IN MY VIEW THE DOUBLE JEOPARDY CLAUSE FORBIDS SIMULTANEOUS
PROSECUTION UNDER SEC. 1955 AND 371.  WHARTON'S RULE IN ITS ORIGINAL
FORMULATION WAS ROOTED IN THE DOUBLE JEOPARDY CONCERN OF AVOIDING
MULTIPLE PROSECUTIONS.  CARTER V. MC CLAUGHRY, 183 U.S. 365, 394 - 395
(1902), AND LATER CASES /1/ CONFINE THE DOUBLE JEOPARDY PROTECTION TO
PROHIBITING CUMULATIVE PUNISHMENT OF OFFENSES THAT ARE ABSOLUTELY
IDENTICAL, BUT I WOULD NOT EXTEND THOSE CASES SO AS TO PERMIT BOTH
CONVICTIONS IN THIS CASE TO STAND. 

THE EVIDENCE AGAINST PETITIONERS CONSISTED LARGELY OF CONVERSATIONS
THAT INVOLVED GAMBLING TRANSACTIONS.  THE GOVERNMENT'S THEORY OF THE
CASE WAS THAT PETITIONER IANNELLI WAS THE CENTRAL FIGURE IN THE
ENTERPRISE WHO, THROUGH OTHER EMPLOYEES OR AGENTS, RECEIVED BETS,
ARRANGED PAYOFFS, AND PARCELED OUT COMMISSIONS.  THE EVIDENCE
ESTABLISHED, IN THE GOVERNMENT'S VIEW, "SYNDICATED GAMBLING," THE KIND
OF ACTIVITY PROSCRIBED BY SEC. 1955.  THE VERY SAME EVIDENCE WAS RELIED
UPON TO ESTABLISH THE CONSPIRACY--A CONSPIRACY, APPARENTLY, ENDURING AS
LONG AS THE SUBSTANTIVE OFFENSE CONTINUED, AND PROVABLE BY THE SAME
ACTS THAT ESTABLISHED THE VIOLATION OF SEC. 1955.  THUS THE VERY SAME
TRANSACTIONS AMONG THE DEFENDANTS GAVE RISE TO CRIMINAL LIABILITY UNDER
BOTH STATUTES. 

UNDER THESE CIRCUMSTANCES, I WOULD REQUIRE THE PROSECUTOR TO CHOOSE
BETWEEN SEC. 371 AND SEC. 1955 AS THE INSTRUMENT FOR CRIMINAL
PUNISHMENT.  SEE MY DISSENTING OPINION IN GORE V. UNITED STATES, 357
U.S. 386, 395 - 397 (1958), WHERE THE GOVERNMENT BROUGHT THREE CHARGES
BASED ON A SINGLE SALE OF NARCOTICS.  TO PERMIT THIS KIND OF MULTIPLE
PROSECUTION IS TO PLACE IN THE HANDS OF THE GOVERNMENT AN ARBITRARY
POWER TO INCREASE PUNISHMENT.  HERE, AS IN GORE, I WOULD REQUIRE THE
PROSECUTOR TO OBSERVE THE "'"FUNDAMENTAL RULE OF LAW THAT OUT OF THE
SAME FACTS A SERIES OF CHARGES SHALL NOT BE PERFERRED."'"  ID., AT 396,
QUOTING REGINA V. ELRINGTON, 9 COX C.C. 86, 90, 1 B & S 688, 696
(1861). 

        II 

APART FROM MY VIEWS OF THE DOUBLE JEOPARDY CLAUSE, I WOULD REVERSE
ON THE ADDITIONAL GROUND THAT CONGRESS DID NOT INTEND TO PERMIT
SIMULTANEOUS CONVICTIONS UNDER SEC. 371 AND SEC. 1955 FOR THE SAME
ACTS.  THE RULE THAT A CONSPIRACY REMAINS SEPARABLE FROM THE COMPLETED
CRIME, THUS PERMITTING SIMULTANEOUS CONVICTION FOR BOTH, RESTS ON THE
ASSUMPTION THAT THE ACT OF CONSPIRING PRESENTS SPECIAL DANGERS THE
LEGISLATURE DID NOT ADDRESS IN DEFINING THE SUBSTANTIVE CRIME AND THAT
ARE NOT ADEQUATELY CHECKED BY ITS PROSECUTION.  /2/ BUT THE RULE OF
SEPARABILITY IS ONE OF CONSTRUCTION ONLY, AN AID TO DISCERNING
LEGISLATIVE INTENT.  WHARTON'S RULE TEACHES THAT WHERE THE SUBSTANTIVE
CRIME ITSELF IS AIMED AT THE EVILS TRADITIONALLY ADDRESSED BY THE LAW
OF CONSPIRACY, SEPARABILITY SHOULD NOT BE FOUND UNLESS THE CLEAREST
LEGISLATIVE STATEMENT DEMANDS IT.  IN MY VIEW THIS CASE FITS THE
RATIONALE OF WHARTON'S RULE, AND THERE IS NO LEGISLATIVE STATEMENT
JUSTIFYING THE INFERENCE THAT CONGRESS INTENDED TO PERMIT MULTIPLE
CONVICITONS. 

TITLE 18 U.S.C. SEC. 1955, WHICH CREATES THE SUBSTANTIVE OFFENSE, IS
AIMED AT A PARTICULAR FORM OF CONCERTED ACTIVITY.  THE PROVISION WAS
ADDED BY THE ORGANIZED CRIME CONTROL ACT OF 1970, PUB. L. 91 - 942, 84
STAT. 922.  THIS STATUTE, AS ITS TITLE INDICATES, WAS DIRECTED AT
CRIMINAL ACTIVITY CARRIED OUT BY LARGE ORGANIZATIONS, DESCRIBED BY
CONGRESS AS HIERARCHICAL IN STURCTURE AND AS HAVING THEIR OWN SYSTEM OF
LAW AND INDEPENDENT ENFORCEMENT INSTITUTIONS.  /3/ MOST OF THE ACT WAS
DEVOTED TO ALTERING THE POWERS AND PROCEDURES OF LAW ENFORCEMENT
INSTITUTIONS TO DEAL WITH EXISTING OFFENSES.  /4/ ONLY A FEW PROVISIONS
ADDED NEW PROHIBITIONS OF PRIMARY CONDUCT.  AMONG THESE WS TITLE VIII,
WHICH APPEARS UNDER THE HEADING, " SYNDICATED GAMBLING."  SECTION 1955,
INCLUDED IN TITLE VIII, PROHIBITS PARTICIPATION IN AN "ILLEGAL GAMBLING
BUSINESS," WHICH IS DEFINED AS ONE INVOLVING AT LEAST FIVE PERSONS WHO
"CONDUCT, FINANCE, MANAGE, SUPERVISE, DIRECT, OR OWN ALL OR PART OF"
THE ENTERPRISE.  CONGRESS THOUGHT THAT FEDERAL LAW ENFORCEMENT
RESOURCES WOULD BE USED OT COMBAT LARGE ENTERPRISES, "SO CONTINUOUS AND
SO SUBSTANTIAL AS TO BE A MATTER OF NATIONAL CONCERN."  /5/ 

CONVICTION UNDER SEC. 1955 SATISFIES, IN MY VIEW, THE SOCIAL
CONCERNS THAT PUNISHMENT FOR CONSPIRACY IS SUPPOSED TO ADDRESS.  THE
PROVISION WAS AIMED NOT AT THE SINGLE UNLAWFUL WAGER BUT AT "SYNDICATED
GAMBLING."  CONGRESS VIEWED THIS ACTIVITY AS HARMFUL BECAUSE ON SUCH A
SCALE IT WAS THOUGHT TO FACILITATE OTHER FORMS OF ILLICIT ACTIVITY, ONE
OF THE REASONS TRADITIONALLY ADVANCED FOR THE SEPARATE PROSECUTION OF
CONSPIRACIES.  WHERE SEC. 1955 HAS BEEN VIOLATED, THE ELEMENTS OF
CONSPIRACY WILL ALMOST INVARIABLY BE FOUND.  THE ENTERPRISES TO WHICH
CONGRESS WAS REFERRING IN SEC. 1955 CANNOT, AS A PRACTICAL MATTER, BE
CREATED AND PERPETUATED WITHOUT THE AGREEMENT AND COORDINATION THAT
CHARACTERIZE CONSPIRACY.  SECTION 1955 IS THUS MOST SENSIBLY VIEWED AS
A STATUTE DIRECTED AT CONSPIRACY IN A PARTICULAR CONTEXT. 

ALL THIS THE MAJORITY SEEMS TO CONCEDE WHEN IT ACKNOWLEDGES A
"PRESUMPTION THAT THE TWO (CRIMES) MERGE WHEN THE SUBSTANTIVE OFFENSE
IS PROVED."  ANTE, AT 786.  BUT THE MAJORITY CONCLUDES THAT
SIMULTANEOUS CONVICTION IS AUTHORIZED BECAUSE IT IS NOT "EXPLICITLY
EXCLUDED."  ANTE, AT 789.  THE MAJORITY THUS IMPLICITLY CONCEDES THAT
THE STATUTE IS SILENT ON THE MATTER OF SIMULTANEOUS CONVICITON.  /6/ OT
INFER FROM SILENCE AN INTENTION TO PERMIT MULTIPLE PUNISHMENT IS, I
THINK, A DEPARTURE FROM THE "PRESUPPOSITION OF OUR LAW TO RESOLVE
DOUBTS IN THE ENFORCEMENT OF A PENAL CODE AGAINST THE IMPOSITION OF A
HARSHER PUNISHMENT," BELL V. UNITED STATES, 349 U.S. 81, 83 (1955).  I
WOULD ADHERE TO THAT PRINCIPLE, WHICH IS BUT A SPECIFIC APPLICATION OF
THE "ANCIENT RULE THAT A CRIMINAL STATUTE IS TO BE STRICTLY CONSTRUED,"
CALLANAN V. UNITED STATES, 364 U.S. 587, 602 (1961) (STEWART, J.,
DISSENTING). 

THE MAJORITY SUGGESTS, ANTE, AT 784, THAT SEC. 371 MAY BE USED TO
ENHANCE THE PUNISHMENT FOR A SEC. 1955 OFFENSE COMMITTED BY "OWNERS AND
ORGANIZERS" OF THE ENTERPRISE, LEAVING PROSECUTION UNDER SEC. 1955
ALONE FOR "LESSER PARTICIPANTS."  BUT THIS IS THE COURT'S SUGGESTION,
NOT THAT OF CONGRESS.  CONGRESS RECOGNIZED THAT SYNDICATED OPERATIONS
WOULD INCLUDE PERSONS HAVING VARYING DEGREES OF AUTHORITY /7/ AND SET A
MAXIMUM PENALTY ACCORDINGLY. 

CONGRESS DID ADDRESS THE MATTER OF SENTENCE ENHANCEMENT IN TITLE X
OF THE ACT, CODIFIED AT 18 U.S.C. SEC. 3575 - 3578.  THESE PROVISIONS
AUTHORIZE AUGMENTED PUNISHMENT, TO A MAXIMUM OF IMPRISONMENT FOR 25
YEARS, FOR FELONIES COMMITTED BY A "DANGEROUS SPECIAL OFFENDER,"  SEC.
3575 (B).  SOME OF THE PROCEDURAL OBSTACLES TO SENTENCE ENHANCEMENT
UNDER THESE PROVISIONS, AND THE CONSTITUTIONAL QUESTIONS RAISED
THEREBY, ARE NOW BEING LITIGATED IN THE DISTRICT COURTS.  /8/  NOTHING
IN TITLE X, HOWEVER, SUPPORTS THE MAJORITY'S POSITION.  "  SPECIAL
OFFENDER," AS DEFINED IN SEC. 3575 (E), INCLUDES A DEFENDANT CONVICTED
OF A FELONY THAT WAS COMMITTED IN FURTHERANCE OF A "CONSPIRACY . . . TO
ENGAGE IN A PATTERN OF CONDUCT CRIMINAL UNDER APPLICABLE LAWS OF ANY
JURISDICTION . . . ."  THE APPLICATION OF THIS LANGUAGE TO A SEC. 1955
CONVICTION IS NOT READILY APPARENT.  THOUGH "PATTERN OF CRIMINAL
CONDUCT" IS NOT DEFINED IN THE STATUTE, IT IS CLEAR FROM THE
LEGISLATIVE HISTORY THAT CONGRESS WAS FOCUSING ON REPEATED OFFENDERS. 
/9/ AN ENTERPRISE PROSCRIBED BY SEC. 1955 WILL INVOLVE REPEATED
TRANSACTIONS; YET I HAVE DOUBT THAT CONGRESS INTENDED THAT PROOF OF A
SEC. 1955 OFFENSE ALONE WOULD CONSTITUTE A "PATTERN." 

IN ANY CASE, THE SPECIAL PROCEDURES OF TITLE X ARE AT ODDS WITH ANY
NOTION THAT SEC. 371 WOULD BE USED TO ENHANCE PUNISHMENT.  SENTENCE MAY
BE INCREASED UNDER SEC. 3575 ONLY IF THE JUDGE MAKES SPECIAL FINDINGS
THAT THE DEFENDANT IS "DANGEROUS," SEC. 3575 (F).  AND SEC. 3575 (A)
REQUIRES THAT "(IN NO CASE SHALL THE FACT THAT THE DEFENDANT IS ALLEGED
TO BE A DANGEROUS SPECIAL OFFENDER BE AN ISSUE UPON THE TRIAL . . .
(OR) BE DISCLOSED TO THE JURY . . . ."  THE TRIAL JUDGE MUST STATE THE
REASONS FOR ENHANCING SENTENCE, SEC. 3575 (B), AND THERE ARE PROVISONS
FOR APPELLATE REVIEW, SEC. 3576.  AMONG THE PURPOSES OF TITLE X WAS
"IMPROVING THE RATIONALITY, CONSISTENCY, AND EFFECTIVENESS OF
SENTENCING BY TESTING CONCEPTS OF LIMITING AND GUIDING SENTENCING
DISCRETION," /10/ A PURPOSE UNDERCUT BY AUTHORIZING THE PROSECUTOR TO
ADD CHARGES UNDER SEC. 371.  IF, AS THE MAJORITY SAYS, THE STATUTE IS A
"CAREFULLY CRAFTED PIECE OF LEGISLATION," ANTE, AT 789, WE SHOULD LEAVE
THE DIFFERENTIATION OF OFFENDERS TO THE SCHEME CONGRESS EXPRESSLY
CREATED. 

CONSPIRACY, IF CHARGED IN A SEC. 1955 PROSECUTION, SHOULD BE CHARGED
AS A PREPARATORY OFFENSE THAT MERGES WITH THE COMPLETED CRIME, AND
CONSIDERED BY THE JURY ONLY IF IT FIRST ACQUITS THE DEFENDANT OF THE
SEC. 1955 CHARGE.  THE TRIAL JUDGE DID ALLUDE TO THIS USE OF THE
CONSPIRACY CHARGE, /11/ AND HE DID SUGGEST THAT THE JURY MIGHT DEFER
CONSIDERATION OF THE CONSPIRACY COUNT UNTIL AFTER DELIBERATION OF THE
SEC. 1955 CHARGE.  BUT THAT WAS ONLY A SUGGESTION; THE INSTRUCTIONS
PERMITTED CONVICITONS ON BOTH CHARGES.  THE ERROR CANNOT BE CORRECTED
MERELY BY VACATING THE SENTENCES ON THE CONSPIRACY COUNT; IT REQUIRES A
NEW TRIAL.  WE SO HELD IN MILANOVICH V. UNITED STATES, 365 U.S. 551
(1961), WHERE THE TRIAL JUDGE HAD PERMITTED THE JURY TO CONVICT THE
DEFENDANT BOTH OF LARCENY AND OF RECEIVING STOLEN GOODS.  WE HELD THAT
SIMULTANEOUS CONVICTION OF BOTH OFFENSES WAS IMPERMISSIBLE AND THAT THE
PROPER REMEDY WAS A NEW TRIAL: 

"(THERE IS NO WAY OF KNOWING WHETHER A PROPERLY INSTRUCTED JURY
WOULD HAVE FOUND THE WIFE GUILTY OF LARCENY OR OF RECEIVING (OR,
CONCEIVABLY, OF NEITHER)."  ID., AT 555. 

I WOULD ACCORDINGLY REVERSE THESE CONVICTIONS. 

/1/ E.G., MORGAN V. DEVINE, 237 U.S. 632, 641 (1915); PINKERTON V.
UNITED STATES, 328 U.S. 640, 643 - 644 (1946); GORE V. UNITED STATES,
357 U.S. 386 (1958). 

/2/ SEE UNITED STATES V. RABINOWICH, 238 U.S. 78, 88 (1915):  " FOR
TWO OR MORE TO CONFEDERATE AND COMBINE TOGETHER TO COMMIT OR CAUSE TO
BE COMMITTED A BREACH OF THE CRIMINAL LAWS, IS AN OFFENSE OF THE
GRAVEST CHARACTER, SOMETIMES QUITE OUTWEIGHING, IN INJURY TO THE
PUBLIC, THE MERE COMMISSION OF THE CONTEMPLATED CRIME.  IT INVOLVES
DELIBERATE PLOTTING TO SUBVERT THE LAWS, EDUCATING AND PREPARING THE
CONSPIRATORS FOR FURTHER AND HABITUAL CRIMINAL PRACTICES.  AND IT IS
CHARACTERIZED BY SECRECY, RENDERING IT DIFFICULT OF DETECTION, AND
REQUIRING MORE TIME FOR ITS DISCOVERY, AND ADDING TO THE IMPORTANCE OF
PUNISHING IT WHEN DISCOVERED." 

/3/ SEE S. REP. NO. 91 - 617, PP. 36 - 41 (1969) (HEREINAFTER SENATE
REPORT). 

/4/ TITLE I AUTHORIZED THE CONVENING OF SPECIAL GRAND JURIES, AND
TITLES II THROUGH VI WERE AIMED AT ENHANCING THE PROSECUTOR'S ABILITY
TO OBTAIN TESTIMONY OF WITNESSES.  TITLE X PROVIDES FOR THE ENHANCEMENT
OF SENTENCES OF DESIGNATED OFFENDERS. 

/5/ SENATE REPORT 73. 

/6/ BY THE APPLICATION OF 18 U.S.C. SEC. 1511 AND DEFENDANT MAY BE
FOUND GUILTY BOTH OF VIOLATING SEC. 1955 AND OF CONSPIRACY TO "OBSTRUCT
THE ENFORCEMENT OF THE CRIMINAL LAWS OF A STATE OR POLITICAL
SUBDIVISION THEREOF, WITH THE INTENT TO FACILITATE AN ILLEGAL GAMBLING
BUSINESS."  AN ESSENTIAL ELEMENT OF THE NARROWLY DEFINED SEC. 1511
CONSPIRACY IS PARTICIPATION OF AN "OFFICIAL OR EMPLOYEE" OF A
GOVERNMENTAL UNIT.  THAT REQUIREMENT IS NOT SATISFIED HERE, AND THUS
SEC. 1511 IS INAPPLICABLE. 

/7/ SEE SENATE REPORT 40 - 41; H.R. REP. NO. 71 - 1549, P. 53
(1970). 

/8/ SEE UNITED STATES V. KELLY, 384 F. SUPP. 1394 (WD MO. 1974);
UNITED STATES V. DUARDI, 384 F. SUPP. 874 (WD MO. 1974); UNITED STATES
V. EDWARDS, 379 F. SUPP. 317 (MD FLA. 1974). 

/9/ REPEATED OFFENDERS INCLUDED BOTH THOSE HAVING PRIOR CONVICTIONS
AND THOSE WHO, BY VIRTUE OF PARTICULAR POSITIONS IN A CRIMINAL
ORGANIZATION, HAD COMMITTED PREVIOUSLY UNDETECTED CRIMES.  SENATE
REPORT 87 - 88; H.R. REP. NO. 91 - 1549, PP. 61 - 62 (1970).     /10/
SENATE REPORT 83. 

/11/ THE TRIAL JUDGE EXPLAINED:  " IT IS THEORETICALLY POSSIBLE THAT
TWO PEOPLE COULD CONSPIRE TO FORM A BUSINESS OF FIVE (PARTICIPANTS) OR
MORE.  IT WOULD BE THEORETICALLY POSSIBLE, TOO, THAT IF THE UBSINESS
WERE UNDERWAY AND ONLY REACHED A TOTAL OF FOUR, THAT THERE WOULD BE NO
VIOLATION OF SECTION 1955, BUT THERE STILL COULD BE A CONSPIRACY CHARGE
ON THE PART OF THOSE WHO PLANNED THE AGREEMENT TO ULTIMATELY MAKE A
BUSINESS OF FIVE, EVEN THOUGH THEY NEVER ACTUALLY REACHED FIVE."  TR.
2505. 

MR. JUSTICE STEWART AND MR. JUSTICE MARSHALL JOIN PART II OF THIS
OPINION. 

MR. JUSTICE BRENNAN, DISSENTING. 

IN BELL V. UNITED STATES, 349 U.S. 81 (1955), THIS COURT HELD THAT
IN CRIMINAL CASES:  " WHEN CONGRESS LEAVES TO THE JUDICIARY THE TASK OF
IMPUTING TO CONGRESS AN UNDECLARED WILL, THE AMBIGUITY SHOULD BE
RESOLVED IN FAVOR OF LENITY."  ID., AT 83.  I AGREE WITH MR. JUSTICE
DOUGLAS THAT "(SECTION 1955 IS . . . MOST SNESIBLY VIEWED AS A STATUTE
DIRECTED AT CONSPIRACY IN A PARTICULAR CONTEXT," ANTE, AT 795, AND THAT
THE STATUTE IS AT BEST SILENT ON WHETHER PUNISHMENT FOR BOTH THE
SUBSTANTIVE CRIME AND CONSPIRACY WAS INTENDED.  IN THIS SITUATION, I
WOULD INVOKE BELL'S RULE OF LENITY.  I THEREFORE DISSENT. 

JAMES E. MC LAUGHLIN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WERE CHARLES ALAN WRIGHT AND STANTON D. LEVENSON. 

MARK L. EVANS ARGUED THE CASUE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK AND ASISTANT ATTORNEY GENERAL
PETERSEN. 
..END :















MTM, INC. V. BAXLEY, 420 U.S. 799 


       MTM, INC., ET AL. V. BAXLET, ATTORNEY GENERAL OF ALABAMA, ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ALABAMA

        NO. 73 - 119.  ARGUED DECEMBER 10, 1974--DECIDED MARCH 25,

           1975; 365 F. SUPP. 1182, VACATED AND REMANDED. 


    THIS COURT HAS NO JURISDICTION OVER AN APPEAL UNDER 28 U.S.C.

  SEC. 1253 FROM A THREE-JUDGE DISTRICT COURT'S ORDER DENYING

  INJUNCTIVE RELIEF AGAINST ENFORCEMENT OF A STATE COURT TEMPORARY

  INJUNCTION UNDER THE ALABAMA NUISANCE STATUTE CLOSING APPELLANT'S

  THEATER, WHERE THE THREE-JUDGE COURT DID NOT REACH THE MERITS OF

  APPELLANT'S CONSTITUTIONAL ATTACK ON THE NUISANCE STATUTE BUT

  INSTEAD BASED ITS ORDER ON THE IMPROPRIETY OF FEDERAL

  INTERVENTION IN THE STATE PROCEEDINGS. 

PER CURIAM. 

THE STATE OF ALABAMA BROUGHT SUIT AGAINST APPELLANT MTM IN STATE
COURT UNDER THE ALABAMA NUISANCE LAW, TIT. 7, SEC. 1081 - 1108, CODE OF
ALABAME (1958), /1/ SEEKING TO ENJOIN THE CONTINUED OPERATION OF
NUISANCE BY MTM.  IT ALLEGED THAT BECAUSE OF CONVICTIONS FOR VIOLATIONS
OF LOCAL OBSCENITY LAWS BY THE PUSSYCAT ADULT THEATER, AN ENTERPRISE
OWNED BY MTM IN BIRMINGHAM, ALABAMA, THE THEATER CONSTITUTED A NUICANCE
UNDER THIS STATUTE.  /2/  AFTER A HEARING ON THE COMPLAINT, THE STATE
COURT ISSUED A TEMPORARY INJUNCTION UNDER THE NUISANCE LAW, CLOSING THE
THEATER.  /3/ 

AFTER ISSUANCE OF THE TEMPORARY INJUNCTION AND WHILE ACTION ON THE
REQUEST FOR A PERMANENT INJUNCTION WAS PENDING IN STATE COURT,
APPELLANT FILED THIS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA UNDER THE CIVIL RIGHTS ACT OF 1871, 42
U.S.C. SEC. 1983.  IT ASKED THE FEDERAL COURT TO ENJOIN ENFORCEMENT OF
THE STATE COURT TEMPORARY INJUNCTION AND TO DECLARE THE ALABAMA
NUISANCE LAW UNCONSTITUTIONAL.  APPELLANT CLAIMED THAT THE CHALLENGED
STATUTORY PROVISIONS AND THE STATE COURT TEMPORARY INJUNCTION INFRINGED
ITS FIRST, FIFTH, AND FOURTEENTH AMENDMENT RIGHTS. 

A THREE-JUDGE FEDERAL COURT WAS CONVENED PURSUANT TO 2, U.S.C. SEC.
2281 TO CONSIDER APPELLANT'S COMPLAINT.  WITHOUT RESOLVING THE
CONSTITUTIONAL MERITS OF THE COMPLAINT, THE THREE-JUDGE COURT DISMISSED
THE COMPLAINT WITHOUT PREJUDICE.  /4/ IN VIEW OF THE PENDENCY OF THE
STATE PROCEEDINGS, THE THREE-JUDGE DISTRICT COURT APPLIED THE TEST
ENUNCIATED IN YOUNGER V. HARRIS, 401 U.S. 37 (1971), /5/ AND CONCLUDED
THAT FEDERAL INTERVENTION AS REQUESTED BY APPELLANT WOULD BE IMPROPER. 

APPELLANT HAS BROUGHT THE CASE DIRECTLY TO THIS COURT, ASSERTING
THAT JURISDICTION EXISTS UNDER 28 U.S.C. SEC. 1253, AND ARGUING THAT
THE REQUIREMENTS OF YOUNGER V. HARRIS, SUPRA, DID NOT PRECLUDE RELIEF
ON THESE FACTS.  WE NOTED PROBABLE JURISDICTION OVER THIS APPEAL AND
SET THIS CASE FOR ARGUMENT IN TANDEM WITH HUFFMAN V. PURSUE, LTD.,
ANTE, P. 592.  415 U.S. 974 (1974). 

UNLESS JURISDICTION OVER THIS DIRECT APPEAL FROM THE THREE-JUDGE
COURT DECISION BELOW IS CONFERRED BY 28 U.S.C. SEC. 1253, WE ARE
WITHOUT AUTHORITY TO ENTERTAIN IT.  /6/ SECTION 1253 PROVIDES: 

" EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO

  THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE

  AND HEARING, AN INTERLOCUTORY OR PRMANENT INJUNCTION IN ANY CIVIL

  ACTION, SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE

  HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

APPELLANT ARGUES THAT ITS COMPLAINT PRESENTED A "SUIT . . . REQUIRED .
. . TO BE HEARD" BY A THREE-JUDGE COURT /7/ AND THAT THE DISMISSAL OF
ITS COMPLAINT SEEKING INJUNCTIVE RELIEF CONSTITUTED "AN ORDER . . .
DENYING . . . AN INTERLOCUTORY OR PERMANENT INJUNCTION" WITHIN THE
MEANING OF SEC. 1253. 

IN GONZALEZ V. EMPLOYEES CREDIT UNION, 419 U.S. 90 (1974), WE
RECENTLY DISCUSSED IN SOME DETAIL THE QUESTION OF WHAT CONSTITUTES AN
ORDER "DENYING" INJUNCTIVE RELIEF FOR PURPOSES OF SEC. 1253.  THERE WE
HELD THAT DIRECT APPEAL TO THIS COURT UNDER SEC. 1253 DID NOT LIE FROM
THE ORDER OF A THREE-JUDGE COURT DISMISSING A COMPLAINT BECAUSE OF AN
ABSENCE OF STANDING WHERE THE THREE-JUDGE COURT DID NOT REACH THE
MERITS OF THE CONSTITUTIONAL CLAIM PRESENTED.  ALTHOUGH OUR DECISION
RESTED AT LEAST PARTIALLY ON THE GROUND THAT A THREE-JUDGE COURT WAS
NOT "REQUIRED" WHERE THE GROUND FOR DECISION BELOW WAS AN ABSENCE OF
STANDING, 419 U.S., AT 100, WE ALSO EXPLORED THE QUESTION OF WHETHER AN
ORDER OF A THREE-JUDGE COURT "DENIES" AN INJUNCTION, FOR PURPOSES OF
SEC. 1253, WHERE THERE IS NO ADVERSE RESOLUTION OF THE CONSTITUTIONAL
CLAIMS PRESENTED.  ALTHOUGH NOTING THAT CERTAIN DECISIONS OF THIS COURT
AND A LITERAL READING OF SEC. 1253 MIGHT BE TAKEN TO SUPPORT THE NOTION
THAT A DENIAL OF INJUNCTIVE RELIEF ON ANY BASIS BY A THREE-JUDGE COURT
IS WITHIN THE PURVIEW OF SEC. 1253, WE CONCLUDED THAT STARE DECISIS IS
ENTITLED TO LESS THAN ITS USUAL WEIGHT IN THIS AREA, AND THAT "THE
OPAQUE TERMS AND PROLIX SYNTAX, OF THIS STATUTE WERE NOT CAPABLE OF
LITERAL READING.  419 U.S., AT 96 - 97.  IN FOCUSING ON THE QUESTION OF
WHETHER DIRECT REVIEW BY THIS COURT UNDER SEC. 1253 IS AVAILABLE IN THE
ABSENCE OF A THREE-JUDGE COURT DECISION RESTING ON RESOLUTION OF THE
CONSTITUTIONAL MERITS OF A COMPLAINT, WE STATED: 

     " MERCANTILE ARGUES THAT SEC. 1253 SHOULD BE READ TO LIMIT OUR

  DIRECT REVIEW OF THREE-JUDGE ORDERS DENYING INJUNCTIONS TO THOSE

  THAT REST UPON RESOLUTION OF THE CONSTITUTIONAL MERITS OF THE

  CASE.  THERE WOULD BE EVIDENT VIRTUES TO THIS RULE.  IT WOULD

  LEND SYMMETRY TO THE COURT'S JURISDICTION SINCE, IN REVIEWING

  ORDERS GRANTING INJUNCTIONS, THE COURT IS NECESSARILY DEALING

  WITH A RESOLUTION OF THE MERITS.  WHILE ISSUES SHORT OF THE

  MERITS--SUCH AS JUSTICIABLITY, SUBJECT-MATTER JURISDICTION,

  EQUITABLE JURISDICITON, AND ABSTENTION--ARE OFTEN OF MORE THAN

  TRIVIAL CONSEQUENCE, THAT ALONE DOES NOT ARGUE FOR OUR REVIEWING

  THEM ON DIRECT APPEAL.  DISCRETIONARY REVIEW IN ANY CASE WOULD

  REMAIN AVAILABLE, INFORMED BY THE MEDIATING WISDOM OF A COURT OF

  APPEALS.  FURTHERMORE, THE COURTS OF APPEALS MIGHT IN MANY

  INSTANCES GIVE MORE DETAILED CONSIDERATION TO THESE ISSUES THAN

  THIS COURT, WHICH DISPOSES OF MOST MANDATORY APPEALS IN SUMMARY

  FASHION."  419 U.S., AT 99. 

THE CONFLICTING DECISIONS OF THIS COURT ON THE QUESTION OF WHETHER SEC.
1253 JURISDICITON ATTACHES WHERE A THREE-JUDGE FEDERAL COURT FAILS TO
REACH THE MERITS OF A CONSTITUTIONAL CLAIM FOR INJUNCTIVE RELIEF DO NOT
PROVIDE A CONSISTENT ANSWER TO THIS QUESTION.  COMPARE LYNCH V.
HOUSEHOLD FINANCE CORP., 405 U.S. 538 (1972), WITH MENGELKOCH V.
INDUSTRIAL WELFARE COMM'N, 393 U.S. 83 (1968); ROSADO V. WYMAN, 395
U.S. 826 (1969); MITCHELL V. DONOVAN, 398 U.S. 427 (1970).  SEE
GONZALEZ V. EMPLOYEES CREDIT UNION, SUPRA, AT 95 N. 11; 9 J. MOORE,
FEDERAL PRACTICE 110.03 (3), PP. 76 - 79 (2D ED. 1973).  IT IS CERTAIN
THAT THE CONGRESSIONAL POLICY BEHIND THE THREE-JUDGE COURT AND DIRECT
REVIEW APPARATUS--THE SAVING OF STATE AND FEDERAL STATUTES FROM
IMPROVIDENT DOOM AT THE HANDS OF A SINGLE JUDGE--WILL NOT BE IMPAIRED
BY A NARROW CONSTRUCTION OF SEC. 1253.  A BROAD CONSTRUCTION OF THE
STATUTE, ON THE OTHER HAND, WOULD BE AT ODDS WITH THE HISTORIC
CONGRESSIONAL POLICY OF MINIMIZING THE MANDATORY DOCKET OF THIS COURT
IN THE INTEREST OF SOUND JUDICIAL ADMINISTRATION.  PHILLIPS V. UNITED
STATES, 312 U.S. 246, 250 - 251 (1941); GONZALEZ V. EMPLOYEES CREDIT
UNION, SUPRA, AT 98. 

IN LIGHT OF THESE FACTORS, WE CONCLUDE THAT A DIRECT APPEAL WILL LIE
TO THIS COURT UNDER SEC. 1253 FROM THE ORDER OF A THREE-JUDGE FEDERAL
COURT DENYING INTERLOCUTORY OR PERMANENT INJUNCTIVE RELIEF ONLY WHERE
SUCH ORDER RESTS UPON RESOLUTION OF THE MERITS OF THE CONSTITUTIONAL
CLAIM PRESENTED BELOW. 

IN THE INSTANT CASE, THE THREE-JUDGE COURT BELOW DID NOT REACH THE
MERITS OF APPELLANT'S CONSTITUTIONAL ATTACK ON THE ALABAMA STATUTE AND
INSTEAD BASED ITS ORDER ON THE IMPROPRIETY OF FEDERAL INTERVENTION
UNDER OUR DECISION IN YOUNGER V. HARRIS, 401 U.S. 37 (1971).  IN SUCH
CIRCUMSTANCES, WE ARE WITHOUT JURISDICTION TO CONSIDER THIS APPEAL. 
THE CORRECTNESS OF THE APPLICATION OF YOUNGER ON THESE FACTS BY THE
DISTRICT COURT IS FOR THE COURT OF APPEALS TO DETERMINE.  ACCORDINGLY,
WE VACATE THE ORDER BEFORE US AND REMAND THIS CASE TO THE DISTRICT
COURT SO THAT A FRESH ORDER MAY BE ENTERED AND A TIMELY APPEAL
PROSECUTED TO THE COURT OF APPEALS.  /8/

            IT IS SO ORDERED. 

/1/ NUISANCE IS DEFINED IN SEC. 1091 OF THIS ACT AS "ANY PLACE . . .
UPON WHICH LEWDNESS, ASSIGNATION OR PROSTITUTION IS CONDUCTED,
PERMITTED, CONTINUED, OR EXISTS, AND THE PERSONAL PROPERTY AND CONTENTS
USED IN CONDUCTING OR MAINTAINING ANY SUCH PLACE FOR ANY SUCH
PURPOSE."  THE REMAINDER OF THE LAW CONSISTS OF DETAILED PROCEDURAL
PROVISIONS GOVERNING THE MAINTENANCE OF A NUISANCE ACTION. 

/2/ IN ADDITION TO MTM, MOBILE BOOKSTORE WAS A PLAINTIFF BELOW AND
IS AN APPELLANT IN THE IMMEDIATE ACTION.  THERE ARE NO MATERIAL
DIFFERENCES IN THE FACTS SURROUNDING MOBILE'S PARTICIPATION IN THIS
ACTION AND THOSE SURROUNDING MTM'S PARTICIPATION.  FOR SIMPLICITY, MTM
AND MOBILE ARE HEREINAFTER REFERRED TO COLLECTIVELY AS APPELLANT. 

/3/ ALTHOUGH EXPEDITED APPEAL OF THE TEMPORARY INJUNCTION WAS
AVAILABLE IN STATE CURTS UNDER ALABAMA CODE, TIT. 7, SEC. 757, 1057
(1958), APPELLANT INITIATED NO STATE COURT APPEAL PRIOR TO THE THREE
JUDGE COURT'S DECISION ONT HE MERITS.  AT THE REQUEST OF APPELLANT,
HEARING ONT HE PERMANENT INJUNCTION IN STATE COURT WAS DEFERRED PENDING
OUTCOME OF THE FEDERAL SUIT. 

/4/ THE DECISION OF THE THREE-JUDGE COURT IS REPORTED AT 365 F.
SUPP. 1182. 

/5/ WE, OF COURSE, EXPRESS NO VIEW ON THE CORRECTNESS OF THE LOWER
COURT'S HOLDING. 

/6/ THE QUESTION OF JURISDICTION OVER THIS APPEAL UNDER 28 U.S.C.
SEC. 1253 WAS NOT RAISED IN THE STATEMENT OF JURISDICTION, THE MOTION
TO DISMISS, OR IN THE INITIAL BRIEFS FILED N THIS CASE.  AT ORAL
ARGUMENT IN LIGHT OF OUR INTERVENING DECISION IN GONZALEZ V. EMPLOYEES
CREDIT UNION, 419 U.S. 90 (1974), HANDED DOWN AFTER THE FILING OF
BRIEFS IN THIS CASE AND ON THE DAY THAT THIS CASE WAS ORALLY ARGUED, IT
WAS SUGGESTED FROM THE BENCH THAT SUPPLEMENTAL BRIEFS ADDRESSED TO THE
ISSUE OF JURISDICTION UNDER 28 U.S.C. SEC. 1253 IN LIGHT OF GONZALEZ,
SUPRA, BE SUBMITTED.  APPELLANT HAS SUBMITTED A BRIEF ATTEMPTING TO
DISTINGUISH GONZALEZ, SUPRA, WHICH WE HAVE CONSIDERED IN RESOLVING THIS
JURISDICITONAL QUESTION.  SEE BROWN SHOE CO. V. UNITED STATES, 370 U.S.
294, 305 - 306 (1962).  WHILE OUR NORMAL PRACTICE UNDER RULE 16 (6) OF
THIS COURT HAS BEEN TO POSTPONE NOTATION OF PROBABLE JURISDICTION TO
THE HEARING ON THE MERITS WHERE JURISDICTIONAL PROBLEMS ARE PRESENTED,
OUR INTERVENING DECISION IN GONZALEZ, SUPRA, SQUARELY RAISED THE
JURISDICTIONAL QUESTION ENCOUNTERED HERE AFTER WE HAD NOTED PROBABLE
JURISDICTION IN THE CASE. 

/7/ THERE IS NO OCCASION FOR US TO DECIDE IN THIS CASE THE
CIRCUMSTANCES UNDER WHICH A SINGLE JUDGE MAY DISMISS THE COMPLAINT
WITHOUT CONVENING A THREE-JUDGE COURT WHERE THE GROUND FOR SUCH
DISMISSAL RESTS SOLELY ON THE IMPROPRIETY OF FEDERAL INTERVENTION.  SEE
STEFFEL V. THOMPSON, 415 U.S. 452, 457 N. 7 (1974); GONZALEZ V.
EMPLOYEES CREDIT UNION, SUPRA, AT 100. 

/8/ SEE STAMLER V. WILLIS, 393 U.S. 407 (1969); MITCHELL V. DONOVAN,
398 U.S. 427, 431 (1970). 

MR. JSUTICE WHITE, CONCURRING IN THE RESULT. 

THE COURT HOLDS THAT DISMISSING A SUIT ON YOUNGER V. HARRIS, 401
U.S. 37 (1971), GROUNDS IS NOT AN ORDER DENYING AN INJUNCTION FOR THE
PURPOSE OF 28 U.S.C. SEC. 1253 AND IS THEREFORE NOT APPEALABLE DIRECTLY
TO THIS COURT, EVEN ASSUMING THAT THE ORDER COULD BE ISSUED ONLY BY A
THREE-JUDGE COURT.  I AGREE WITH THE RESULT BUT NOT WITH THIS MODE OF
ACHIEVING IT. 

IF ONLY A THREE-JUDGE COURT MAY ORDER SUCH A DISMISSAL, I HAVE GREAT
DIFFICULTY IN EXCLUDING SUCH AN ORDER FROM THE REACH OF THE PLAIN TERMS
OF SEC. 1253.  THE SOLE JUSTIFICATION FOR SO MANHANDLING THE LANGUAGE
OF THE SECTION IS TO AVOID OUR HEARING A DIRECT APPEAL ON A
NONCONSTITUTIONAL ISSUE OF FEDERAL LAW THAT HAS LITTLE IF ANY
CONNECTION WITH THE REASONS FOR REQUIRING EITHER THREE-JUDGE COURTS OR
DIRECT REVIEW OF THEIR DECISIONS.  THAT PROCEDURE WAS ADOPTED TO
PROTECT STATE STATUTES FROM IMPROVIDENT INJUNCTIONS ISSUED BY A SINGLE
FEDERAL JUDGE ON FEDERAL CONSTITUTIONAL GROUNDS.  THE MORE
STRAIGHTFORWARD APPROACH TO THIS CASE WOULD BE TO HOLD THAT DECISIONS
ON ISSUES OTHER THAN REQUESTS FOR INJUNCTIVE RELIEF CHALLENGING THE
CONSTITUTIONALITY OF STATE STATUTES NEED NOT BE MADE BY THREE JUDGES
BUT RATHER ARE TO BE MADE OR DEEMED TO BE MADE BY SINGLE-JUDGE COURTS
WHOSE DECISIONS ARE APPEALABLE ONLY TO THE COURTS OF APPEALS. 
PROCEEDING IN THIS MANNER WOULD REQUIRE NO MORE THAN CONSTRUING 28
U.S.C. SEC. 2281 AND 2284 (3) AND (4), IN THE LIGHT OF THEIR ORIGINAL
PURPOSE, AS APPLYING ONLY TO ORDERS GRANTING OR DENYING INTERLOCUTORY
OR PERMANENT INJUNCTIONS WHERE THE OCNSTITUTIONALITY OF STATE STATUTES
IS INVOLVED. 

THIS APPROACH MAY APPEAR TO BE AT ODDS WITH IDLEWILD LIQUOR CORP. V.
EPSTEIN, 370 U.S. 713 (1962).  THERE THE COURT HELD A THREE-JUDGE COURT
REQUIRED WHERE A STATUTE WAS CHALLENGED ON CONSTITUTIONAL GROUNDS BUT
WHERE A SINGLE JUDGE ORDERED ABSTENTION PENDING PRESENTATION OF THE
ISSUES TO A STATE COURT.  THE COURT RULED THAT AS LONG AS THE
CONSTITUTIONAL ISSUE WAS SUBSTANTIAL, A BASIS FOR EQUITABLE RELIEF WAS
AT LEAST ALLEGED IN THE COMPLAINT AND THE OTHER REQUIREMENTS FOR THREE
JUDGE-COURT JURISDICTION WERE SATISFIED, A THREE-JUDGE COURT MUST BE
CONVENED.  BUT EVEN WITHIN THIS HOLDING, IF IT APPEARS ON THE FACE OF
THE COMPLAINT THAT THERE IS NO GROUND FOR EQUITABLE RELIEF, THERE WOULD
BE NO NECESSITY FOR CONVENING A THREE-JUDGE COURT.  A SINGLE JUDGE
SHOULD BE ABLE TO DISMISS SUCH A CASE, THEREFORE, IF THE PLEADINGS SHOW
THAT THERE IS LITIGATION PENDING IN THE STATE COURT IN WHICH THE
CONSTITUTIONAL CHALLENGE COULD BE PRESENTED AND NOTHING IS ALLEGED TO
EXCUSE FEDERAL INTERVENTION.  /1/     EVEN IF GROUNDS FOR EQUITABLE
RELIEF ARE ALLEGED IN A COMPLAINT, A SINGLE JUDGE SHOULD BE ABLE TO
RULE ON A MOTION TO DISMISS BASED ON YOUNGER V. HARRIS GROUNDS.  MUCH
WATER HAS GONE OVER THE DAM SINCE IDLEWILD WAS DECIDED.  FOR ONE THING,
IN SWIFT & CO. V. WICKHAM, 382 U.S. 111 (1965), THE COURT MADE VERY
PLAIN THAT THE THREE-JUDGE-COURT REQUIREMENT APPLIED ONLY TO INJUNCTION
SUITS DEPENDING ENTIRELY UPON A SUBSTANTIVE PROVISION OF THE
CONSTITUTION; INJUNCTIONS BY A SINGLE JUDGE COULD BE GRANTED OR DENIED
WHERE THE CLAIM OF INVALIDITY RESTED ON A CONFLICT WITH A FEDERAL
STATUTE.  IN SWIFT, THE "STATUTORY" CLAIM WAS JOINED WITH THE
CONSTITUTIONAL ISSUE, BUT THE LATTER WAS DEEMED FRIVOLOUS, LEAVING ONLY
THE STATUTORY ISSUE FOR WHICH THREE JUDGES WERE NOT REQUIRED.  BUT IN
HAGGANS V. LAVINE, 415 U.S. 528,, 543 - 545 (1974), WE HELD THAT EVEN
WHERE THE STATUTORY CLAIM IS JOINED WITH A SUBSTANTIAL CONSTITUTIONAL
CLAIM, THE FORMER COULD BE, AND SHOULD BE, DECIDED FIRST BY A SINGLE
JUDGE. 

THE PLAIN IMPORT OF THESE CASES IS THAT THREE JUDGES ARE NOT
REQUIRED MERELY BECAUSE A COMPLAINT STATES A CAUSE OF ACTION FOR AN
INJUNCTION BASED ON A CONSTITUTIONAL CHALLENGE TO A STATE STATUTE.  ALL
NON-THREE-JUDGE-COURT ISSUES MAY BE SORTED OUT AND TRIED BY A SINGLE
JUDGE.  CASES LIKE IDLEWILD ARE DERELICTS AND SHOULD BE EXPRESSLY
CLEARED FROM THE SCENE.  /2/ 

GONZALEZ V. EMPLOYEES CREDIT UNION, 419 U.S. 90 (1974), HAS SHOWN
THE WAY AND I WOULD FOLLOW ITS LEAD.  THIS IS ESPECIALLY DESIRABLE IN
THIS CASE; FOR THE RESULT OF THE COURT'S HOLDING IS TO REQUIRE A THREE
JUDGE COURT TO PASS ON YOUNGER V. HARRIS ISSUES AND TO DIRECT APPEALS
FROM THOSE ORDERS TO THE COURT OF APPEALS, WHERE THEY WOULD NORMALLY BE
HEARD AGAIN BY THREE JUDGES.  THIS IS AN EXORBITANT EXPENDITURE OF
JUDICIAL MANPOWER, AND WITHOUT REASON IN LIGHT OF OUR CASES. 

/1/ EVEN ON THE COURT'S OWN TERMS, IDLEWILD IS NOT A STRONG REASON
FOR ITS RELUCTANCE TO SAY THAT A THREE-JUDGE COURT WAS NOT REQUIRED
HERE.  IDLEWILD CONCERNED ABSTENTION UNDER RAILROAD COMM'N V. PULLMAN
CO., 312 U.S. 496 (1941).  UNDER PULLMAN ABSTENTION, THE FEDERAL COURT
RETAINS JURISDICTION WHILE THE STATE LAW ISSUES ARE ADJUDICATED IN
STATE COURT, AND THEREFORE NO RELIEF HAS BEEN FINALLY DENIED IN FEDERAL
COURT.  IN CONSTRAST TO THAT DEFERRAL OF RELIEF, YOUNGER V. HARRIS, 401
U.S. 37 (1971), ABSTENTION MANDATES DISMISSAL OF THE FEDERAL ACTION. 
IT IS STRAINING THE ORDINARY MEANING OF WORDS TO SAY THAT REQUESTED
INJUNCTIVE RELIEF HAS NOT BEEN DENIED IN SUCH A SITUATION. 

/2/ TO THE EXTENT THAT STEFFEL V. THOMPSON, 415 U.S. 452, 457 N. 7
(1974, SUGGESTS THE CONTRARY IN DICTUM, IT SHOULD NOT BE FOLLOWED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

LIKE MY BROTHER WHITE, I HAVE GREAT DIFFICULTY UNDERSTANDING HOW IT
IS POSSIBLE, WITHIN THE PLAIN TERMS OF 28 U.S.C. SEC. 1253, TO AVOID A
DIRECT APPEAL TO THIS COURT FROM A DISMISSAL WHICH IS REQUIRED TO BE
MADE BY A DISTRICT COURT OF THREE JUDGES.  THE COURT DOES NOT DECIDE
WHETHER ONE OR THREE JUDGES WOULD BE REQUIRED FOR THE DISPOSITION MADE
BELOW.  RATHER, IT CONCLUDES THAT DIRECT APPEAL TO THIS COURT UNDER
SEC. 1253 LIES ONLY FROM THE DENIAL OF INJUNCTIVE RELIEF BY A THREE
JUDGE COURT WHICH "RESTS UPON RESOLUTION OF THE MERITS OF THE
CONSTITUTIONAL CLAIM PRESENTED BELOW."  ANTE, AT 804. 

I COULD AT LEAST CONCUR IN THE RESULT IF I BELIEVED THAT A SINGLE
JUDGE HAD THE POWER TO DISMISS BASED ON YOUNGER V. HARRIS, 401 U.S. 37
(1971), GROUNDS, BUT I HAVE MY DOUBTS ABOUT THAT PROPOSITION AS WELL. 
RECENTLY THE COURT'S HOSTILITY TO THREE-JUDGE COURTS HAS LED IT TO
RESTRICT THE NEED FOR SUCH COURTS.  SEE GONZALEZ V. EMPLOYEES CREDIT
UNION, 419 U.S. 90 (1974); HAGGANS V. LAVINE, 415 U.S. 528 (1974).  I
JOINED IN THOSE DECISIONS, BUT I HAVE COME TO THE CONCLUSION THAT THE
COURT IS GOING TOO FAR.  I THEREFORE MUST REGISTER MY DISSENT. 

MANY HAVE ARGUED IN RECENT YEARS THAT THE THREE-JUDGE COURT IS NO
LONGER NEEDED, THAT IT HAS OUTLIVED ITS ORIGINAL PURPOSES AND SHOULD
THEREFORE BE ELIMINATED AS A NEEDLESS WASTE OF JUDICIAL RESOURCES.  /1/
WHETHER THE THREE-JUDGE COURT IS ANY LONGER NEEDED FOR THE REASONS
WHICH LED TO ITS CREATION I DO NOT KNOW.  BUT I NOTE THAT AT LEAST SOME
OBSERVERS BELIEVE THE THREE-JUDGE COURT TO BE AN IMPORTANT INSTITUTION
FOR LITIGANTS SUCH AS CIVIL RIGHTS AND WELFARE PLAINTIFFS.  THREE
JUDGES MAY WELL DISPLAY MORE SENSITIVITY TO NATIONAL POLICIES AND
PERSPECTIVES THAN WOULD A SINGLE JUDGE, AND WHEN THREE JUDGES DECIDE IN
FAVOR OF A MINORITY OR AN UNPOPULAR GROUP THEIR DECISION IS LIKELY TO
INSPIRE MORE RESPECT THAN WOULD THE DECISION OF A SINGLE JUDGE.  /2/ 

I DO NOT KNOW HOW THESE VARIOUS FACTORS SHOULD BE WEIGHED.  PERHAPS
THE THREE-JUDGE-COURT SYSTEM, ALONG WITH DIRECT REVIEW HERE, SHOULD BE
ELIMINATED OR ALTERED IN A MAJOR WAY; PERHAPS NOT.  UNDER THE
CONSTITUTION THIS DECISION IS ONE FOR THE CONGRESS AND NOT THE COURTS. 
/3/ MOREOVER, THERE ARE PRACTICAL REASONS TO AVOID JUDICIAL USURPATION
OF POWER OVER JURISDICTION.  UNDER THE LAW AS CURRENTLY INTERPRETED
SUBSTANTIAL DIFFICULTIES CAN ARISE AS TO WHETHER INITIAL DECISIONS
SHOULD BE MADE BY A SINGLE JUDGE OR THREE JUDGES AND AS TO WHETHER
APPEALS SHOULD BE TO THE COURTS OF APPEALS OR TO THIS COURT.  /4/ A
CASE CAN BE SPLIT INTO PIECES, MAKING IT DIFFICULT FOR COURTS TO
RESOLVE ISSUES IN A WAY WHICH TAKES INTO ACCOUNT ALL RELEVANT ASPECTS
OF THE LAWSUIT.  SEE PARKS V. HARDEN, 504 F. 2D 861, 865 - 867 (CA5
1974).  WE SHOULD NOT ENCOURAGE THIS KIND OF FRAGMENTATION IN THE NAME
OF JUDICIAL ECONOMY, FOR IT WILL ULTIMATELY LEAD TO MUCH DELAY AND
DUPLICATION OF EFFORT. 

TO SOME EXTENT THE CONFUSION SURROUNDING THREE-JUDGE COURTS IS THE
FAULT OF THE STATUTORY SCHEME, BUT I THINK THAT MUCH OF THE BLAME MUST
BE PLACED ON THIS COURT.  WHAT IS THE STATUS OF IDLEWILD LIQUOR CORP.
V. EPSTEIN, 370 U.S. 713 (1962), AFTER TODAY'S DECISION?  PERHAPS
IDLEWILD SHOULD BE DISTINGUISHED OR OVERRULED, AS MY BROTHER WHITE
URGES, BUT I REMAIN UNCONVINCED.  I THINK WE WOULD DO BETTER TO LEAVE
SETTLED AS MANY PRINCIPLES AS WE REASONABLY CAN IN THIS TROUBLED AREA,
AND I CERTAINLY DO NOT THINK THAT WE HELP MATTERS BY TWISTING THE
LANGUAGE OF SEC. 1253 IN THE WAY THE MAJORITY HAS DONE HERE. 

I WOULD REVERSE THE DECISION BELOW FOR THE REASONS GIVEN IN HUFFMAN
V. PURSUE, LTD., ANTE, P. 613 (DISSENTING OPINION), AND I WOULD REMAND
THE CASE FOR CONSIDERATION OF APPELLANT'S CONSTITUTIONAL CLAIMS. 

/1/ SEE, E.G., STATEMENT OF CHARLES ALAN WRIGHT, HEARINGS ON S. 1876
BEFORE THE SUBCOMMITTEE ON IMPROVEMENTS IN JUDICIAL MACHINERY OF THE
SENATE COMMITTEE ON THE JUDICIARY, 92D CONG., 2D SESS., 763, 773
(1972). 

/2/ SEE HEARING ON S. 271 AND H.R. 8285 BEFORE THE SUBCOMMITTEE ON
COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 93D CONG., 2D SESS., 141 - 151 (1973);
NOTE, THE THREE-JUDGE COURT REASSESSED:  CHANGING ROLES IN FEDERAL
STATE RELATIONSHIPS, 72 YALE L. J. 1646, 1652 - 1653 (1963). 

/3/ U.S. CONST., ART. III, SEC. 1 AND 2.  CONGRESS IS AWARE OF THE
THREE-JUDGE-COURT ISSUE, AS IS ILLUSTRATED BY ITS RECENT ACTIONS IN
THIS AREA.  SEE ANTITRUST PROCEDURES AND PENALTIES ACT, PUB. L. NO. 93
528, 88 STAT. 1706 (1974); ACT OF JAN. 2, 1975, PUB. L. NO. 93 - 584,
88 STAT. 1917. 

/4/ SEE H.M. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 967 - 974 (2D ED. 1973); 9 J. MOORE, FEDERAL PRACTICE 110.03 (3)
(2D ED. 1973); CURRIE, THE THREE-JUDGE DISTRICT COURT IN CONSTITUTIONAL
LITIGATION, 32 U. CHI.  L. REV. 1 (1964). 

ROBERT EUGENE SMITH ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEF WAS GILBERT H. DEITCH. 

HERBERT JENKINS, JR., ARGUED THE CASUE AND FILED A BRIEF FOR
APPELLEES. 

BARBRA SCOTT AND JAMES BOURAS FILED A BRIEF FOR THE MOTION PICTURE
ASSOCIATION OF AMERICA, INC., AS AMICUS CURIAE URGING REVERSAL. 
..END :








COX V. COOK, 420 U.S. 734 


       COX, FORMER ASSISTANT DIRECTOR FOR TREATMENT, VIRGINIA

           DIVISION OF CORRECTIONS, ET AL. V. COOK

       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FOURTH CIRCUIT

      NO. 74 - 751.  DECIDED MARCH 24, 1975;

        CERTIORARI GRANTED; REVERSED. 


    IN STATE PRISONER'S ACTION AGAINST PRISON OFFICIALS SEEKING

  DAMAGES AND EXPUNCTION OF RECORDS FOR ALLEGED DUE PROCESS

  VIOLATIONS IN SUMMARILY PLACING HIM IN SOLITARY CONFINEMENT,

  RELIEF CANNOT BE BASED ON THE RULES REQUIRING NOTICE AND A

  HEARING IN CONNECTION WITH SERIOUS PRISON DISCIPLINE

  DETERMINATIONS ANNOUNCED IN THE NONRETROACTIVE DECISION, WOLFF V.

  MC DONNELL, 418 U.S. 539, OR IN LANDMAN V. ROYSTER, 333 F. SUPP.

  621, WHERE THE DISCIPLINE DETERMINATIONS IN QUESTION ALL OCCURRED

  BEFORE THE DATES OF THOSE DECISIONS. 

PER CURIAM. 

THIS PETITION BY OFFICIALS OF THE VIRGINIA PRISON SYSTEM FOR A WRIT
OF CERTIORARI ARISES OUT OF A SUIT BROUGHT AGAINST THEM BY AN INMATE OF
THE VIRGINIA STATE PENITENTIARY IN WHICH HE ALLEGED THAT ON THREE
OCCASIONS, BETWEEN OCTOBER 1968 AND MARCH 1970, HE WAS PLACED IN
SOLITARY CONFINEMENT FOR MISCONDUCT WITHOUT BEING GIVEN NOTICE OF THE
MISCONDUCT CHARGED OR AN OPPORTUNITY TO MEET THE CHARGE AT A HEARING,
/1/ IN VIOLATION OF THE PROCEDURAL REQUIREMENTS OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT; AND IN WHICH HE REQUESTED MONETARY
DAMAGES AND EXPUNCTION OF ALL RECORDS OF THE DISCIPLINE. 

A JURY AT A PARTIAL TRIAL /2/ FOUND THAT RESPONDENT HAD IN FACT BEEN
PLACED IN SOLITARY CONFINEMENT FOR MISCONDUCT WITHOUT NOTICE OR A
HEARING.  IT ALSO FOUND THAT HE HAD SUFFERED MENTAL BUT NO PHYSICAL
DAMAGE.  HOWEVER, IT MADE NO FINDING WITH RESPECT TO THE RESPONSIBILITY
OF ANY OF THE PETITIONERS FOR HIS CONFINEMENT.  AFTER OFFERING
RESPONDENT AN ADDITIONAL OPPORTUNITY TO ADDUCE FIRTHER PROOF ON THIS
ISSUE BEFORE A SECOND JURY, THE TRAIL JUDGE RULED THAT RESPONDENT COULD
RECOVER NOTHING AS THE PROOF WAS INSUFFICIENT TO ESTABLISH THAT
PETITIONERS HAD KNOWLEDGE OF OR WERE RESPONSIBLE FOR RESPONDENT'S
CONFINEMENT. 

RESPONDENT APPEALED AND, WITHOUT BRIEFS OR ORAL ARGUMENT, THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, HOLDING THAT THE PROOF
BELOW WOULD SUPPORT A FINDING THAT PETITIONERS WERE ULTIMATELY
RESPONSIBLE FOR RESPONDENT'S SOLITARY CONFINEMENT, REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS. 

ON PETITION FOR REHEARING PETITIONERS CONTENDED THAT THE
CONSTITUTIONAL RULE REQUIRING NOTICE AND SOME KIND OF A HEARING IN
CONNECTION WITH SERIOUS PRISON DISCIPLINE DETERMINATIONS WAS CREATED IN
WOLFF V. MC DONNELL, 418 U.S. 539, IN 1974, AND WAS EXPRESSLY MADE
INAPPLICABLE TO DISCIPLINARY ACTION TAKEN BEFORE THE DATE OF THAT
DECISION.  ID., AT 573 - 574.  THUS EVEN IF RESPONDENT HAD PROVED THAT
PETITIONERS WERE RESPONSIBLE FOR HIS SOLITARY CONFINEMENT HE COULD NOT,
AS A MATTER OF LAW, OBTAIN RELIEF.  THE COURT OF APPEALS DENIED THE
REHEARING PETITION, SAYING THAT, IN THE DISTRICT IN WHICH RESPONDENT
WAS INCARCERATED, A FEDERAL DECISION PREDATING WOLFF V. MC DONNELL,
SUPRA, NAMELY LANDMAN V. ROYSTER, 333 F. SUPP. 621 (ED VA. 1971),
REQUIRED NOTICE AND A HEARING IN CONNECTION WITH SERIOUS PRISON
DISCIPLINE DETERMINATIONS.  PETITIONERS CONTEND HERE THAT LANDMAN V.
ROYSTER, SUPRA, WAS ITSELF DECIDED AFTER THE DISCIPLINE DETERMINATIONS
INVOLVED IN THIS CASE AND THUS SUPPLIES NO MORE BASIS FOR LIABILITY IN
THIS CASE THAN DOES WOLFF V. MC DONNELL.  WE AGREE. 

IN WOLFF V. MC DONNELL, SUPRA, WE HELD THAT A STATE PRISONER WAS
ENTITLED UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO
NOTICE AND SOME KIND OF A HEARING IN CONNECTION WITH DISCIPLINE
DETERMINATIONS INVOLVING SERIOUS MISCONDUCT.  HOWEVER, WE EXPRESSLY
REJECTED THE HOLDING OF THE COURT OF APPEALS IN THAT CASE THAT 

"THE DUE PROCESS REQUIREMENTS IN PRISON DISCIPLINARY PROCEEDINGS
WERE TO APPLY RETROACTIVELY SO AS TO REQUIRE THAT PRISON RECORDS
CONTAINING DETERMINATIONS OF MISCONDUCT, NOT IN ACCORD WITH REQUIRED
PROCEDURES, BE EXPUNGED," ID., AT 573; AND WE EXPRESSLY HELD OUR
DECISION NOT TO BE RETROACTIVE.  THE HOLDING WAS MADE IN THE OCNTEXT OF
A REQUEST FOR EXPUNGEMENT OF THE RECORDS OF PRISON DISCIPLINE
DETERMINATIONS.  THE SAME RESULT OBTAINS, A FORTIORI, TO MONETARY
CLAIMS AGAINST PRISON OFFICIALS ACTING IN GOOD-FAITH RELIANCE ON A PRE
EXISTING PROCEDURE.  SEE PIERSON V. RAY, 386 U.S. 547 (1967).  IT IS
TRUE THAT THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA IN LANDMAN V. ROYSTER, SUPRA, ANTICIPATED IN PART THE HOLDING
OF THIS COURT IN WOLFF V. MC DONNELL, SUPRA.  EVEN IF THIS MIGHT BEAR
ON THE RETROACTIVITY ISSUE WITH RESPECT TO DISCIPLINE DETERMINATIONS
MADE IN THE EASTERN DISTRICT OF VIRGINIA AFTER THE DECISION IN LANDMAN
V. ROYSTER, SUPRA, AND BEFORE THE DECISION IN WOLFF V. MC DONNELL,
SUPRA, THE DISCIPLINE DETERMINATIONS IN THIS CASE ALL OCCURRED BEFORE
THE DECISION IN LANDMAN V. ROYSTER, SUPRA.  THEREFORE, NEITHER THE RULE
ANNOUNCED IN THAT CASE NOR THE ONE ANNOUNCED IN WOLFF V. MC DONNELL,
SUPRA, SUPPORTS RESPONDENT'S DAMAGE OR EXPUNCTION CLAIMS HERE.  /3/
ACCORDINGLY, THE WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF THE
COURT OF APPEALS FOR THE FOURTH CIRCUIT IS

               REVERSED. 

/1/ THE SUIT WAS ALSO BASED ON A CLAIM THAT AN UNIDENTIFIED GUARD
INFLICTED A BEATING ON RESPONDENT.  THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT HAS SUSTAINED THE DISTRICT COURT'S HOLDING THAT NONE OF THE
PETITIONERS WAS RESPONSIBLE FOR THE BEATING, AND RESPONDENT HAS NOT
FILED A CROSS-PETITION FOR A WRIT OF CERTIORARI. 

/2/ THE TRIAL JUDGE WAS UNCERTAIN WHETHER RESPONDENT WAS ENTITLED TO
A JURY TRIAL.  COUNSEL AND THE COURT AGREED TO OBTAIN A JURY'S FINDINGS
OF FACT ON CERTAIN ISSUES IN THE FORM OF A SPECIAL VERDICT, AND TO
POSTPONE DECISION WHETHER A JURY TRIAL WAS WARRANTED. 

/3/ WE DO NOT REGARD THE UNCERTAIN DICTA IN LANDMAN V. PEYTON, 370
F. 2D 135 (CA4 1966), WHICH DID PREDATE THE DISCIPLINE DETERMINATIONS
INVOLVED HERE, AS LAYING DOWN A RULE BINDING ON PETITIONERS PRIOR TO
THE LATER DECISION IN LANDMAN V. ROYSTER, 333 F. SUPP. 621 (ED VA.
1971).  THESE DICTA WERE NOT MENTIONED OR RELIED ON BY THE COURT OF
APPEALS OR RESPONDENT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










WEINBERGER V. WIENSENFELD, 420 U.S. 636 


       WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE V.

           WIENSENFELD

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NEW JERSEY

        NO. 73 - 1892.  ARGUED JANUARY 20, 1975--DECIDED MARCH 19,

           1975; 367 F.SUPP.  981, AFFIRMED. 


    THE GENDER-BASED DISTINCTION MANDATED BY THE PROVISIONS OF THE

  SOCIAL SECURITY ACT, 42 U.S.C. SEC. 402 (G), THAT GRANT

  SURVIVORS' BENEFITS BASED ON THE EARNINGS OF A DECEASED HUSBAND

  AND FATHER COVERED BY THE ACT BOTH TO HIS WIDOW AND TO THE

  COUPLE'S MINOR CHILDREN IN HER CARE, BUT THAT GRANT BENEFITS

  BASED ON THE EARNINGS OF A COVERED DECEASED WIFE AND MOTHER ONLY

  TO THE MINOR CHILDREN IN HER CARE, BUT THAT GRANT BENEFITS BASED

  ON THE EARNINGS OF A COVERED DECEASED WIFE AND MOTHER ONLY TO THE

  MINOR CHILDREN AND NOT TO THE WIDOWER, VIOLATES THE RIGHT TO

EQUAL PROTECTION SECURED BY THE DUE PROCESS CLAUSE OF THE FIFTH

  AMENDMENT, SINCE IT UNJUSTIFIABLY DISCRIMINATES AGAINST FEMALE

  WAGE EARNERS REQUIRED TO PAY SOCIAL SECURITY TAXES BY AFFORDING

  THEM LESS PROTECTION FOR THEIR SURVIVORS THAN IS PROVIDED FOR

  MALE WAGE EARNERS.  PP. 642 - 653. 

     (A) THE DISTINCTION IS BASED ON AN "ARCHAIC AND OVERBROAD"

  GENERALIZATION NOT TOLERATED UNDER THE CONSTITUTION, NAMELY, THAT

  MALE WORKERS' EARNINGS ARE VITAL TO THEIR FAMILIES' SUPPORT,

  WHILE FEMALE WORKERS' EARNINGS DO NOT SIGNIFICANTLY CONTRIBUTE TO

  FAMILIES' SUPPORT.  FRONTIERO V. RICHARDSON, 411 U.S. 677.  PP.

  642 - 643. 

     (B) THAT SOCIAL SECURITY BENEFITS ARE "NONCONTRACTUAL" AND DO

  NOT COMPENSATE FOR WORK PERFORMED OR NECESSARILY CORRELATE WITH

  CONTRIBUTIONS TO THE PROGRAM, CANNOT SANCTION THE SOLELY

  GENDER-BASED DIFFERENTIAL PROTECTION FOR COVERED EMPLOYEES. 

  SINCE THE BENEFITS DEPEND SIGNIFICANTLY UPON A COVERED EMPLOYEE'S

  PARTICIPATION IN THE WORK FORCE, AND SINCE ONLY COVERED EMPLOYEES

  AND NOT OTHERS ARE REQUIRED TO PAY TAXES TOWARD THE SYSTEM,

  BENEFITS MUST BE DISTRIBUTED ACCORDING TO CLASSIFICATIONS THAT DO

NOT DIFFERENTIATE AMONG COVERED EMPLOYEES SOLELY ON THE BASIS OF

  SEX.  PP. 646 - 647. 

     (C) SINCE, AS IS APPARENT FROM THE STATUTORY SCHEME ITSELF AND

  FROM SEC. 402 (G)'S LEGISLATIVE HISTORY, SEC. 402 (G)'S PURPOSE

  IN PROVIDING BENEFITS TO YOUNG WIDOWS WITH CHILDREN WAS NOT, AS

THE GOVERNMENT CONTENDS, TO PROVIDE AN INCOME TO WOMEN WHO,

  BECAUSE OF ECONOMIC DISCRIMINATION, WERE UNABLE TO PROVIDE FOR

  THEMSELVES, BUT TO PERMIT WOMEN TO ELECT NOT TO WORK AND TO

  DEVOTE THEMSELVES TO CARE OF CHILDREN (AND THUS WAS NOT PREMISED

  UPON ANY SPECIAL DISADVANTAGE OF WOMEN), IT CANNOT SERVE TO

  JUSTIFY A GENDER-BASED DISTINCTION DIMINISHING THE PROTECTION

  AFFORDED WOMEN WHO DO WORK.  PP. 648 - 652. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, MARSHALL, BLACKMUN, AND POWELL,

  JJ., JOINED.  POWELL, J., FILED A CONCURRING OPINION IN WHICH

  BURGER, C.J., JOINED, POST, P. 654.  REHNQUIST, J., FILED AN

  OPINION CONCURRING IN THE RESULT, POST, P. 655.  DOUGLAS, J.,

  TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

SOCIAL SECURITY ACT BENEFITS BASED ON THE EARNINGS OF A DECEASED
HUSBAND AND FATHER COVERED BY THE ACT ARE PAYABLE, WITH SOME
LIMITATIONS, BOTH TO THE WIDOW AND TO THE COUPLE'S MINOR CHILDREN IN
HER CARE.  SEC. 202 (G) OF THE SOCIAL SECURITY ACT, AS AMENDED, 42
U.S.C. SEC. 402 (G).  /1/ SUCH BENEFITS ARE PAYABLE ON THE BASIS OF THE
EARNINGS OF A DECEASED WIFE AND MOTHER COVERED BY THE ACT, HOWEVER,
ONLY TO THE MINOR CHILDREN AND NOT TO THE WIDOWER.  THE QUESTION IN
THIS CASE IS WHETHER THIS GENDER-BASED DISTINCTION VIOLATES THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  /2/ 

A THREE-JUDGE DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY HELD
THAT THE DIFFERENT TREATMENT OF MEN AND WOMEN MANDATED BY SEC. 402 (G)
UNJUSTIFIABLY DISCRIMINATED AGAINST FEMALE WAGE EARNERS BY AFFORDING
THEM LESS PROTECTION FOR THEIR SURVIVORS THAN IS PROVIDED TO MALE
EMPLOYEES.  367 F. SUPP. 981, 991 (1973).  WE NOTED PROBABLE
JURISDICTION, 419 U.S. 822 (1974).  WE AFFIRM. 

        I 

APPELLEE STEPHEN C. WIENSENFELD AND PAULA POLATSCHEK WERE MARRIED ON
NOVEMBER 15, 1970.  PAULA, WHO WORKED AS A TEACHER FOR FIVE YEARS
BEFORE HER MARRIAGE, CONTINUED TEACHING AFTER HER MARRIAGE.  EACH YEAR
SHE WORKED, MAXIMUM SOCIAL SECURITY CONTRIBUTIONS WERE DEDUCTED FROM
HER SALARY.  /3/ PAULA'S EARNINGS WERE THE COUPLE'S PRINCIPAL SOURCE OF
SUPPORT DURING THE MARRIAGE, BEING SUBSTANTIALLY LARGER THAN THOSE OF
APPELLEE.  /4/ 

ON JUNE 5, 1972, PAULA DIED IN CHILDBIRTH.  APPELLEE WAS LEFT WITH
THE SOLE RESPONSIBILITY FOR THE CARE OF THEIR INFANT SON, JANSON PAUL. 
SHORTLY AFTER HIS WIFE'S DEATH, STEPHEN WIESENFELD APPLIED AT THE
SOCIAL SECURITY OFFICE IN NEW BRUNSWICK, NEW JERSEY, FOR SOCIAL
SECURITY SURVIVORS' BENEFITS FOR HIMSELF AND HIS SON.  HE DID OBTAIN
BENEFITS FOR HIS SON UNDER 42 U.S.C. SEC. 402 (D) (1970 ED. AND SUPP.
III), /5/ AND RECEIVED FOR JASON $206.90 PER MONTH UNTIL SEPTEMBER
1972, AND $248.30 PER MONTH THEREAFTER.  HOWEVER, APPELLEE WAS TOLD
THAT HE WAS NOT ELIGIBLE FOR BENEFITS FOR HIMSELF, BECAUSE SEC. 402 (G)
BENEFITS WERE AVAILABLE ONLY TO WOMEN.  /6/ IF HE HAD BEEN A WOMAN, HE
WOULD HAVE RECEIVED THE SAME AMOUNT AS HIS SON AS LONG AS HE WAS NOT
WORKING, SEE 42 U.S.C. SEC. 402 (D)(2), 402 (G) (2), AND, IF WORKING,
THAT AMOUNT REDUCED BY $1 FOR EVERY $2 EARNED ANNUALLY ABOVE $2,400. 
42 U.S.C. SEC. 403 (B) AND (F).  /7/ 

APPELLEE FILED THIS SUIT IN FEBRUARY 1973, /8/ CLAIMING JURISDICTION
UNDER 28 U.S.C. SEC. 1331, ON BEHALF OF HIMSELF AND OF ALL WIDOWERS
SIMILARLY SITUATED.  /9/ HE SOUGHT A DECLARATION THAT SEC. 402 (G) IS
UNCONSTITUTIONAL TO THE EXTENT THAT MEN AND WOMEN ARE TREATED
DIFFERENTLY, AN INJUNCTION RESTRAINING APPELLANT FROM DENYING BENEFITS
UNDER SEC. 402 (G) SOLELY ON THE BASIS OF SEX, AND PAYMENT OF PAST
BENEFITS COMMENCING WITH JUNE 1972, THE MONTH OF THE ORIGINAL
APPLICATION.  CROSS MOTIONS FOR SUMMARY JUDGMENT WERE FILED.  AFTER THE
THREE-JUDGE COURT DETERMINED THAT IT HAD JURISDICITON, /10/ IT GRANTED
SUMMARY JUDGMENT IN FAVOR OF APPELLEE, AND ISSUED AN ORDER GIVING
APPELLEE THE RELIEF HE SOUGHT. 

        II 

THE GENDER-BASED DISTINCTION MADE BY SEC. 402 (G) IS
INDISTINGUISHABLE FROM THAT INVALIDATED IN FRONTIERO V. RICHARDSON, 411
U.S. 677 (1973).  FRONTIERO INVOLVED STATUTES WHICH PROVIDED THE WIFE
OF A MALE SERVICEMAN WITH DEPENDENTS' BENEFITS BUT NOT THE HUSBAND OF A
SERVICEWOMAN UNLESS SHE PROVED THAT SHE SUPPLIED MORE THAN ONE-HALF OF
HER HUSBAND'S SUPPORT.  THE COURT HELD THAT THE STATUTORY SCHEME
VIOLATED THE RIGHT TO EQUAL PROTECTION SECURED BY THE FIFTH AMENDMENT. 
SCHLESINGER V. BALLARD, 419 U.S. 498 (1975), EXPLAINED:  "  IN...
FRONTIERO THE CHALLENGED (CLASSIFICATION) BASED ON SEX (WAS) PREMISED
ON OVERBROAD GENERALIZATIONS THAT COULD NOT BE TOLERATED UNDER THE
CONSTITUTION.... (THE ASSUMPTION...WAS THAT FEMALE SPOUSES OF
SERVICEMEN WOULD NORMALLY BE DEPENDENT UPON THEIR HUSBANDS, WHILE MALE
SPOUSES OF SERVICEWOMEN WOULD NOT."  ID., AT 507.  A VIRTUALLY
IDENTICAL "ARCHAIC AND OVERBROAD" GENERALIZATION, ID., AT 508,
"NOT...TOLERATED UNDER THE CONSTITUTION" UNDERLIES THE DISTINCTION
DRAWN BY SEC. 402 (G), NAMELY, THAT MALE WORKERS' EARNINGS ARE VITAL TO
THE SUPPORT OF THEIR FAMILIES, WHILE THE EARNINGS OF FEMALE WAGE
EARNERS DO NOT SIGNIFICANTLY CONTRIBUTE TO THEIR FAMILIES' SUPPORT. 
/11/ 

OF A LARGE NUMBER OF AMENDMENTS DESIGNED TO "AFFORD MORE ADEQUATE
PROTECTION TO THE FAMILY AS A UNIT."  H.R. REP. NO. 728, 76TH CONG.,
1ST SESS., 7 (1939).  MONTHLY BENEFITS WERE PROVIDED TO WIVES,
CHILDREN, WIDOWS, ORPHANS, AND SURVIVING DEPENDENT PARENTS OF COVERED
WORKERS.  IBID.  HOWEVER, CHILDREN OF COVERED FEMALE WORKERS WERE
ELIGIBLE FOR SURVIVORS' BENEFITS ONLY IN LIMITED CIRCUMSTANCES, SEE N.
5, SUPRA, AND NO BENEFITS WHATEVER WERE MADE AVAILABLE TO HUSBANDS OR
WIDOWERS ON THE BASIS OF THEIR WIVES' COVERED EMPLOYMENT.  /12/ 

UNDERLYING THE 1939 SCHEME WAS THE PRINCIPLE THAT "(UNDER A SOCIAL
INSURANCE PLAN THE PRIMARY PURPOSE IS TO PAY BENEFITS IN ACCORDANCE
WITH THE PROBABLE NEEDS OF THE BENEFICIARIES RATHER THAN TO MAKE
PAYMENTS TO THE ESTATE OF A DECEASED PERSON REGARDLESS OF WHETHER OR
NOT HE LEAVES DEPENDENTS."  H.R REP. NO. 728, SUPRA, AT 7.  (EMPHASIS
SUPPLIED.)  IT WAS FELT THAT "(THE PAYMENT OF THESE SURVIVORSHIP
BENEFITS AND SUPPLEMENTS FOR THE WIFE OF AN ANNUITANT ARE...IN KEEPING
WITH THE PRINCIPLE OF SOCIAL INSURANCE...."  IBID.  THUS, THE FRAMERS
OF THE ACT LEGISLATED ON THE "THEN GENERALLY ACCEPTED PRESUMPTION THAT
A MAN IS RESPONSIBLE FOR THE SUPPORT OF HIS WIFE AND CHILDREN."  D.
HOSKINS & L. BIXBY, WOMEN AND SOCIAL SECURITY:  LAW AND POLICY IN FIVE
CUONTRIES, SOCIAL SECURITY ADMINISTRATION RESEARCH REPORT NO. 42, P. 77
(1973).  /13/ 

OBVIOUSLY, THE NOTION THAT MEN ARE MORE LIKELY THAN WOMEN TO BE THE
PRIMARY SUPPORTERS OF THEIR SPOUSES AND CHILDREN IS NOT ENTIRELY
WITHOUT EMPIRICAL SUPPORT.  SEE KAHN V. SHEVIN, 416 U.S. 351, 354 N. 7
(1974).  BUT SUCH A GENDER-BASED GENERALIZATION CANNOT SUFFICE TO
JUSTIFY THE DENIGRATION OF THE EFFORTS OF WOMEN WHO DO WORK AND WHOSE
EARNINGS CONTRIBUTE SIGNIFICANTLY TO THEIR FAMILIES' SUPPORT. 

OUR JUDGMENT IN FRONTIERO, TO DEPRIVE WOMEN OF PROTECITON FOR FAMILES
WHICH MEN RECEIVE AS A RESULT OF THEIR EMPLOYMENT.  INDEED, THE
CLASSIFICATION HERE IS IN SOME WAYS MORE PERNICIOUS.  FIRST, IT WAS
OPEN TO THE SERVICEWOMAN UNDER THE STATUTES INVALIDATED IN FRONTIERO TO
PROVE THAT HER HUSBAND WAS IN FACT DEPENDENT UPON HER.  HERE, STEPHEN
WIENSENFELD WAS NOT GIVEN THE OPPORTUNITY TO SHOW, AS MAY WELL HAVE
BEEN THE CASE, THAT HE WAS DEPENDENT UPON HIS WIFE FOR HIS SUPPORT, OR
THAT, HAD HIS WIFE LIVED, SHE WOULD HAVE REMAINED AT WORK WHILE HE TOOK
OVER THE CARE OF THE CHILD.  SECOND, IN THIS CASE SOCIAL SECURITY TAXES
WERE DEDUCTED FROM PAULA'S SALARY DURING THE YEARS IN WHICH SHE
WORKED.  THUS, SHE NOT ONLY FAILED TO RECEIVE FOR HER FAMILY THE SAME
PROTECTION WHICH A SIMILARLY SITUATED MALE WORKER WOULD HAVE RECEIVED,
BUT SHE ALSO WAS DEPRIVED OF A PORTION OF HER OWN EARNINGS IN ORDER TO
CONTRIBUTE TO THE FUND OUT OF WHICH BENEFITS WOULD BE PAID TO OTHERS. 
SINCE THE CONSTITUTION FORBIDS THE GENDER-BASED DIFFERENTIATION
PREMISED UPON ASSUMPTIONS AS TO DEPENDENCY MADE IN THE STATUTES BEFORE
US IN FRONTIERO, THE CONSTITUTION ALSO FORBIDS THE GENDER-BASED
DIFFERENTIATION THAT RESULTS IN THE EFFORTS OF FEMALE WORKERS REQUIRED
TO PAY SOCIAL SECURITY TAXES PRODUCING LESS PROTECTION FOR THEIR
FAMILIES THAN IS PRODUCED BY THE EFFORTS OF MEN. 

        III 

THE GOVERNMENT SEEKS TO AVOID THIS CONCLUSION WITH TWO RELATED
ARGUMENTS.  FIRST, IT CLAIMS THAT BECAUSE SOCIAL SECURITY BENEFITS ARE
NOT COMPENSATION FOR WORK DONE, CONGRESS IS NOT OBLIGED TO PROVIDE A
COVERED FEMALE EMPLOYEE WITH THE SAME BENEGITS AS IT PROVIDES TO A
MALE.  SECOND, IT CONTENDST HAT SEC. 402 (G) WAS "REASONABLY DESIGNED
TO OFFSET THE ADVERSE ECONOMIC SITUATION OF WOMEN BY PROVIDING A WIDOW
WITH FINANCIAL ASSISTANCE TO SUPPLEMENT OR SUBSTITUTE FOR HER OWN
EFFORTS IN THE MARKETPLACE," BRIEF FOR APPELLANT 14, AND THEREFORE DOES
NOT CONTRAVENE THE EQUAL PROTECTION GUARANTEE. 

        A 

APPELLANT RELIED FOR THE FIRST PROPOSITION PRIMARILY ON FLEMMING V.
NESTOR, 363 U.S. 603 (1960).  WE HELD IN FLEMMING THAT THE INTEREST OF
A COVERED EMPLOYEE IN FUTURE SOCIAL SECURITY BENEFITS IS
"NONCONTRACTUAL," BECAUSE "EACH WORKER'S BENEFITS, THOUGH FLOWING FROM
THE CONTRIBUTIONS HE MADE TO THE NATIONAL ECONOMY WHILE ACTIVELY
EMPLOYED, ARE NOT DEPENDENT ON THE DEGREE TO WHICH HE WAS CALLED UPON
TO SUPPORT THE SYSTEM BY TAXATION."  ID., AT 609 - 610.  THE GOVERNMENT
APPARENTLY CONTENDS THAT SINCE BENEFITS DERIVED FROM THE SOCIAL
SECURITY PROGRAM DO NOT CORRELATE NECESSARILY WITH CONTRIBUTIONS MADE
TO THE PROGRAM, A COVERED EMPLOYEE HAS NO RIGHT WHATEVER TO BE TREATED
EQUALLY WITH OTHER EMPLOYEES AS REGARDS THE BENEFITS WHICH FLOW FROM
HIS OR HER EMPLOYMENT. 

WE DO NOT SEE HOW THE FACT THAT SOCIALSECURITY BENEFITS ARE
"NONCONTRACUTAL" CAN SANCTION DIFFERENTIAL PROTECTION FOR COVERED
EMPLOYEES WHICH IS SOLELY GENDER BASED.  FROM THE OUTSET, SOCIAL
SECURITY OLD AGE, DISABILITY, AND SURVIVORS' (OASDI) BENEFITS HAVE BEEN
"AFFORDED AS A MATTER OF RIGHT, RELATED TO PAST PARTICIPATION IN THE
PRODUCTIVE PROCESSES OF THE COUNTRY."  FINAL REPORT OF THE ADVISORY
COUNCIL ON SOCIAL SECURITY 17 1938).  IT IS TRUE THAT SOCIAL SECURITY
BENEFITS ARE NOT NECESSARILY RELATED DIRECTLY TO TAX CONTRIBUTIONS,
SINCE THE OASDI SYSTEM IS STRUCTURED TO PROVIDE BENEFITS IN PART
ACCORDING TO PRESUMED NEED.  /14/ FOR THIS REASON, FLEMMING HELD THAT
THE POSITION OF A COVERED EMPLOYEE "CANNOT BE SOUNDLY ANALOGIZED TO
THAT OF THE HOLDER OF AN ANNUITY, WHOSE RIGHT TO BENEFITS IS BOTTOMED
ON HIS CONTRACTUAL PREMINUM PAYMENTS."  363 U.S., AT 610.  BUT THE FACT
REMAINS TAHT THE STATUTORY RIGHT TO BENEFITS IS DIRECTLY RELATED TO
YEARS WORKED AND AMOUNT EARNED BY A COVERED EMPLOYEE, /15/ AND NOT TO
THE NEED OF THE BENEFICIARIES DIRECTLY.  SINCE OASDI BENEFITS DO DEPEND
SIGNIFICANTLY UPON THE PARTICIPATION IN THE WORK FORCE OF A COVERED
EMPLOYEE, AND SINCE ONLY COVERED EMPLOYEES AND NOT OTHERS ARE REQUIRED
TO PAY TAXES TOWARD THE SYSTEM, BENEFITS MUST BE DISTRIBUTED ACCORDING
TO CLASSIFICAITONS WHICH DO NOT WITHOUT SUFFICIENT JUSTIFICATION
DIFFERENTIATE AMONG COVERED EMPLOYEES SOLELY ON THE BASIS OF SEX. 

THE GOVERNMENT SEEKS TO CHARACTERIZE THE CLASSIFICATION HERE AS ONE
REASONABLY DESIGNED TO COMPENSATE WOMEN BENEFICIARIES AS A GROUP FOR
THE ECONOMIC DIFFICULTIES WHICH STILL CONFRONT WOMEN WHO SEEK TO
SUPPORT THEMSELVES AND THEIR FAMILIES.  THE COURT HELD IN KAHN V.
SHEVIN, 416 U.S., AT 355, THAT A STATUTE "REASONABLY DESIGNED TO
FURTHER THE STATE POLICY OF CUSHIONING THE FINANCIAL IMPACT OF SPOUSAL
LOSS UPON THE SEX FOR WHICH THAT LOSS IMPOSES A DISPROPORTIONATELY
HEAVY BURDEN" CAN SURVIVE AN EQUAL PROTECTION ATTACK.  SEE ALSO
SCHLESINGER V. BALLARD, 419 U.S. 498 (1975).  BUT THE MERE RECITATION
OF A BENIGN, COMPENSATORY PURPOSE IS NOT AN AUTOMATIC SHIELD WHICH
PROTECTS AGAINST ANY INQUIRY INTO THE ACTUAL PURPOSES UNDERLYING A
STATUTORY SCHEME.  /16/ HERE, IT IS APPARENT BOTH FROM THE STATUTORY
SCHEME ITSELF AND FROM THE LEGISLATIVE HISTORY OF SEC. 402 (G) THAT
CONGRESS' PURPOSE IN PROVIDING BENEFITS TO YOUNG WIDOWS WITH CHILDREN
WAS NOT TO PROVIDE AN INCOME TO WOMEN WHO WERE, BECAUSE OF ECONOMIC
DISCRIMINATION, UNABLE TO PROVIDE FOR THEMSELVES.  RATHER, SEC. 402
(G), LINKED AS IT IS DIRECTLY TO RESPONSIBILITY FOR MINOR CHILDREN, WAS
INTENDED TO PERMIT WOMEN TO ELECT NOT TO WORK AND TO DEVOTE THEMSELVES
TO THE CARE OF CHILDREN.  SINCE THIS PURPOSE IN NO WAY IS PREMISED UPON
ANY SPECIAL DISADVANTAGES OF WOMEN, IT CANNOT SERVE TO JUSTIFY A GENDER
BASED DISTINCTION WHICH DIMINISHES THE PROTECTION AFFORDED TO WOMEN WHO
DO WORK. 

THAT THE PURPOSE BEHIND SEC. 402 (G) IS TO PROVIDE CHILDREN DEPRIVED
OF ONE PARENT WITH THE OPPORTUNITY FOR THE PERSONAL ATTENTION OF THE
OTHER COULD NOT BE MORE CLEAR IN THE LEGISLATIVE HISTORY.  THE ADVISORY
COUNCIL ON SOCIAL SECURITY, WHICH DEVELOPED THE 1939 AMENDEMENTS, SAID
EXPLICITLY THAT "(SUCH PAYMENTS (UNDER SEC. 402 (G)) ARE INTENDED AS
SUPPLEMENTS TO THE ORPHANS' BENEFITS WITH THE PURPOSE OF ENABLING THE
WIDOW TO REMAIN AT HOME AND CARE FOR THE CHILDREN."  FINAL REPORT OF
THE ADVISORY COUNCIL ON SOCIAL SECURITY 31 (1938).  (EMPHASIS
SUPPLIED.)  IN 1971, A NEW ADVISORY COUNCIL, CONSIDERING AMENDMENTS TO
ELIMINATE THE VARIOUS GENDER-BASED DISTINCTIONS IN THE OASDI STRUCTURE,
REITERATED THIS UNDERSTANDING:  " PRESENT LAW PROVIDES BENEFITS FOR THE
MOTHER OF YOUNG ... CHILDREN ... IF SHE CHOOSES TO STAY HOME AND CARE
FOR THE CHILDREN INSTEAD OF WORKING.  IN THE COUNCIL'S JUDGMENT, IT IS
DESIRABLE TO ALLOW A WOMAN WHO IS LEFT WITH THE CARE OF THE CHILDREN
THE CHOICE OF WHETHER TO STAY AT HOME TO CARE FOR THE CHILDREN OR TO
WORK."  1971 ADVISORY COUNCIL ON SOCIAL SECURITY, REPORTS ON THE OLD
AGE, SURVIVORS, AND DISABILITY INSURANCE AND MEDICARE PROGRAMS 30
(HEREINAFTER 1971 REPORTS).  (EMPHASIS SUPPLIED.)     INDEED,
CONSIDERATION WAS GIVEN IN 1939 TO EXTENDING BENEFITS TO ALL WIDOWS
REGARDLESS OF WHETHER OR NOT THERE WERE CHILDREN.  THE PROPOSAL WAS
REJECTED, APPARENTLY BECAUSE IT WAS FELT THAT YOUNG WIDOWS WITHOUT
CHILDREN CAN BE EXPECTED TO WORK, WHILE MIDDLE-AGED WIDOWS "ARE LIKELY
TO HAVE MORE SAVINGS THAN YOUNGER WIDOWS AND MANY OF THEM HAVE CHILDREN
WHO ARE GROWN AND ABLE TO HELP THEM."  REPORT OF THE SOCIAL SECURITY
BOARD, H.R. DOC. NO. 110, 76TH CONG., 1ST SESS., 7 - 8 (1939).  SEE
ALSO FINAL REPORT OF THE ADVISORY COUNCIL ON SOCIAL SECURITY 31 (1938);
HEARINGS ON THE SOCIAL SECURITY ACT AMENDMENTS OF 1939 BEFORE THE HOUSE
COMMITTEE ON WAYS AND MEANS, 76TH CONG., 1ST SESS., 61, 1217, 2169 -
2170; H.R. REP. NO. 728, 76TH CONG., 1ST SESS., 36 - 37 (1939).  THUS,
CONGRESS DECIDED NOT TO PROVIDE BENEFITS TO ALL WIDOWS EVEN THOUGH IT
WAS RECOGNIZED THAT SOME OF THEM WOULD HAVE SERIOUS PROBLEMS IN THE JOB
MARKET.  INSTEAD, IT PROVIDED BENEFITS ONLY TO THOSE WOMEN WHO HAD
RESPONSIBILITY FOR MINOR CHILDREN, BECAUSE IT BELIEVED THAT THEY SHOULD
NOT BE REQUIRED TO WORK. 

THE WHOLE STRUCTURE OF SURVIVORS' BENEFITS CONFORMS TO THIS
ARTICULATED PURPOSE.  WIDOWS WITHOUT CHILDREN OBTAIN NO BENEFITS ON THE
BASIS OF THEIR HUSBAND'S EARNINGS UNTIL THEY REACH AGE 60 OR, IN
CERTAIN INSTANCES OF DISABILITY, AGE 50.  42 U.S.C. SEC. 402 (E)(1) AND
(5).  FURTHER, BENEFITS UNDER SEC. 402 (G) CEASE WHEN ALL CHILDREN OF A
BENFICARY ARE NO LONGER ELIGIBLE FOR CHILDREN'S BENEFITS.  /17/ IF
CONGRESS WERE CONCERNED WITH PROVIDING WOMEN WITH BENEFITS BECAUSE OF
ECONOMIC DISCRIMINATION, IT WOULD BE ENTIRELY IRRATIONAL TO EXCEPT
THOSE WOMEN WHO HAD SPENT MANY YEARS AT HOME REARING CHILDREN, SINCE
THOSE WOMEN ARE MOST LIKELY TO BE WITHOUT THE SKILLS REQUIRED TO
SUCCEED IN THE JOB MARKET.  SEE WALKER, SEX DISCRIMINATION IN
GOVERNMENT BENEFIT PROGRAMS, 23 HASTINGS L.J. 277, 278 - 279 (1971);
HEARINGS, SUPRA, AT 61 (REMARKS OF DR. ALTEMEYER, CHAIRMAN, SOCIAL
SECURITY BOARD); REPORT OF THE COMMITTEE ON SOCIAL INSURANCE AND TAXES,
THE PRESIDENT'S COMMISSION ON THE STATUS OF WOMEN 31 - 32 (1963). 
SIMILARLY, THE ACT NOW PROVIDES BENEFITS TO A SURVIVING DIVORCED WIFE
WHO IS THE PARENT OF A COVERED EMPLOYEE'S CHILD, REGARDLESS OF HOW LONG
SHE WAS MARRIED TO THE DECEASED OR OF WHETHER SHE OR THE CHILD WA
SDEPENDENT UPON THE EMPLOYEE FOR SUPPORT.  SEC. 402 (G), 416 (D)(3). 
YET, A DIVORCED WIFE WHO IS NOT THE MOTHER OF A CHILD ENTITLED TO
CHILDREN'S BENEFITS IS ELIGIBLE FOR BENEFITS ONLY IF SHE MEETS OTHER
ELIGIBILITY REQUIREMENTS AND WAS MARRIED TO THE COVERED EMPLOYEE FOR 20
YEARS.  SEC. 402 (B) AND (E), 416 (D).  /18/  ONCE AGAIN, THIS
DISTINCTION AMONG WOMEN IS EXPLICABLE ONLY BECAUSE CONGRESS WAS NOT
CONCERNED IN SEC. 402 (G) WITH THE EMPLOYMENT PROBLEMS OF WOMEN
GENERALLY BUT WITH THE PRINCIPLE THAT CHILDREN OF COVERED EMPLOYEES ARE
ENTITLED TO THE PERSONAL ATTENTION OF THE SURVIVING PARENT IF THAT
PARENT CHOOSES NOT TO WORK. 

GIVEN THE PURPOSE OF ENABLING THE SURVIVING PARENT TO REMAIN AT HOME
TO CARE FOR A CHILD, THE GENDER-BASED DISTINCTION OF SEC. 402 (G) IS
ENTIRELY IRRATIONAL.  THE CLASSIFICATION DISCRIMINATES AMONG SURVIVING
CHILDREN SOLELY ON THE BASIS OF THE SEX OF THE SURVIVING PARENT.  EVEN
IN THE TYPICAL FAMILY HYPOTHESIZED BY THE ACT, IN WHICH THE HUSBAND IS
SUPPORTING THE FAMILY AND THE MOTHER IS CARING FOR THE CHILDREN, THIS
RESULT MAKES NO SENSE.  THE FACT THAT A MAN IS WORKING WHILE THERE IS A
WIFE AT HOME DOES NOT MEAN THAT HE WOULD, OR SHOULD BE REQUIRED TO,
CONTINUE TO WORK IF HIS WIFE DIES.  IT IS NO LESS IMPORTANT FOR A CHILD
TO BE CARED FOR BY ITS SOLE SURVIVING PARENT WHEN THAT PARENT IS MALE
RATHER THAN FEMALE.  AND A FATHER, NO LESS THAN A MOTHER, HAS A
CONSTITUTIONALLY PROTECTED RIGHT TO THE "COMPANIONSHIP, CARE, CUSTODY,
AND MANAGEMENT" OF "THE CHILDREN HE HAS SIRED AND RAISED, (WHICH)
UNDENIABLY WARRANTS DEFERENCE AND, ABSENT A POWERFUL COUNTERVAILING
INTEREST, PROTECTION."  STANLEY V. ILLINOIS, 405 U.S. 645, 651 (1972). 
FURTHER, TO THE EXTENT THAT WOMEN WHO WORK WHEN THEY HAVE SOLE
RESPONSIBILITY FOR CHILDREN ENCOUNTER SPECIAL PROBLEMS, IT WOULD SEEM
THAT MEN WITH SOLE RESPONSIBILITY FOR CHILDREN WILL ENCOUNTER THE SAME
CHILD-CARE RELATED PROBLEMS.  /19/ STEPHEN WIENSENFELD, FOR EXAMPLE,
FOUND THAT PROVIDING ADEQUATE CARE FOR HIS INFANT SON IMPEDED HIS
ABILITY TO WORK, SEE N. 7, SUPRA. 

FINALLY, TO THE EXTENT THAT CONGRESS LEGISLATED ON THE PRESUMPTION
THAT WOMEN AS A GROUP WOULD CHOOSE TO FORGO WORK TO CARE FOR CHILDREN
WHILE MEN WOULD NOT, /20/ THE STATUTORY STRUCTURE, INDEPENDENT OF THE
GENDER-BASED CLASSIFICATION, WOULD DENY OR REDUCE BENEFITS TO THOSE MEN
WHO CONFORM TO THE PRESUMED NORM AND ARE NOT HAMPERED BY THEIR CHILD
CARE RESPONSIBILITIES.  BENEFITS UNDER SEC. 402 (G) DECREASE WITH
INCREASED EARNINGS, SEE, SUPRA, AT 641.  ACCORDING TO THE GOVERNMENT,
"THE BULK OF MALE WORKERS WOULD RECEIVE NO BENEFITS IN ANY EVENT,"
BRIEF FOR APPELLANT 17 N. 11, BECAUSE THEY EARN TOO MUCH.  THUS, THE
GENDER-BASED DISTINCTION IS GRATUITOUS; WITHOUT IT, THE STATUTORY
SCHEME WOULD ONLY PROVIDE BENEFITS TO THOSE MEN WHO ARE IN FACT
SIMILARLY SITUATED TO THE WOMEN THE STATUTE AIDS. 

SINCE THE GENDER-BASED CLASSIFICATION OF SEC. 402 (G) CANNOT BE
EXPLAINED AS AN ATTEMPT TO PROVIDE FOR THE SPECIAL PROBLEMS OF WOMEN,
IT IS INDISTINGUISHABLE FROM THE CLASSIFICATION HELD INVALID IN
FRONTIERO.  LIKE THE STATUTES THERE, "(BY PROVIDING DISSIMILAR
TREATMENT FOR MEN AND WOMEN WHO ARE ... SIMILARLY SITUATED, THE
CHALLENGED SECTION VIOLATES THE (DUE PROCESS) CLAUSE."  REED V. REED,
404 U.S. 71, 77 (1971). 

                                 AFFIRMED. 

/1/ SECTION 402 (G) IS HEADED " MOTHER'S INSURANCE BENEFITS."  IT
PROVIDES IN PERTINENT PART: 

"(1) THE WIDOW AND EVERY SURVIVING DIVORCED MOTHER (AS DEFINED IN
CURRENTLY INSURED INDIVIDUAL, IF SUCH WIDOW OR SURVIVING DIVORCED
MOTHER--, 

"(A) IS NOT MARRIED, 

"(B) IS NOT ENTITLED TO A WIDOW'S INSURANCE BENEFIT, 

"(C) IS NOT ENTITLED TO OLD-AGE INSURANCE BENEFITS, OR IS ENTITLED
TO OLD-AGE INSURANCE BENEFITS EACH OF WHICH IS LESS THAN THREE-FOURTHS
OF THE PRIMARY INSURANCE AMOUNT OF SUCH INDIVIDUAL, 

"(D) HAS FILED APPLICATION FOR MOTHER'S INSURANCE BENEFITS, OR WAS
ENTITLED TO WIFE'S INSURANCE BENEFITS ON THE BASIS OF THE WAGES AND
SELF-EMPLOYMENT INCOME OF SUCH INDIVIDUAL FOR THE MONTH PRECEDING THE
MONTH IN WHICH HE DIED, 

"(E) AT THE TIME OF FILING SUCH APPLICATION HAS IN HER CARE A CHILD
OF SUCH INDIVIDUAL ENTITLED TO A CHILD'S INSURANCE BENEFIT . . .,

        * * * * * SHALL . . . BE ENTITLED TO A MOTHER'S INSURANCE
BENEFIT FOR EACH MONTH, BEGINNING WITH THE FIRST MONTH AFTER AUGUST
1950 IN WHICH SHE BECOMES SO ENTITLED TO SUCH INSURANCE BENEFTIS AND
ENDING WITH THE MONTH PRECEDING THE FIRST MONTH IN WHICH ANY OF THE
FOLLOWING OCCURS:  NO CHILD OF SUCH DECEASED INDIVIDUAL IS ENTITLED TO
A CHILD'S INSURANCE BENEFIT, SUCH WIDOW OR SURVIVING DIVORCED MOTHER
BECOMES ENTITLED TO AN OLD-AGE INSURANCE BENEFIT EQUAL TO OR EXCEEDING
THREE-FOURTHS OF THE PRIMARY INSURANCE AMOUNT OF SUCH DECEASED
INDIVIDUAL, SHE BECOMES ENTITLED TO A WIDOW'S INSURANCE BENEFIT, SHE
REMARRIES, OR SHE DIES.  . . ." 

THE TERMS "FULLY" AND "CURRENTLY" INSURED ARE DEFINED IN 42 U.S.C.
SEC. 414.  SEE N. 3, INFRA. 

/2/ (WHILE THE FIFTH AMENDMENT CONTAINS NO EQUAL PROTECTION CLAUSE,
IT DOES FORBID DISCRIMINATION THAT IS 'SO UNJUSTIFIABLE AS TO BE
VIOLATIVE OF DUE PROCESS.'"  SCHNEIDER V. RUSK, 377 U.S. 163, 168
(1964); SEE ALSO BOLLING V. SHARPE, 347 U.S. 497, 499 (1954).  THIS
COURT'S APPROACH TO FIFTH AMENDMENT EQUAL PROTECTION CLAIMS HAS ALWAYS
BEEN PRECISELY THE SAME AS TO EQUAL PROTECTION CLAIMS UNDER THE
FOURTEENTH AMENDMENT.  SEE, E.G., SCHLESINGER V. BALLARD, 419 U.S. 498
(1975); JIMENEZ V. WEINBERGER, 417 U.S. 628, 637 (1974); FRONTIERO V.
RICHARDSON, 411 U.S. 677 (1973). 

/3/ THUS, PAULA WIESENFELD WAS "CURRENTLY INSURED" WHEN SHE DIED,
SEE N. 1, SUPRA, BECUASE SHE HAD "NOT LESS THAN SIX QUARTERS OF
COVERAGE DURING THE THIRTEEN-QUARTER PERIOD ENDING WITH (1) THE QUARTER
IN WHICH (SHE) DIED."  42 U.S.C. SEC. 414 (B). 

/4/ IN 1970, PAULA EARNED $9,808, AND STEPHEN EARNED $3,100 AS A
SELF-EMPLOYED CONSULTANT; IN 1971, PAULA EARNED $10,686 AND STEPHEN
$2,188; IN 1972, PUALA EARNED $6,836.35 BEFORE SHE DIED, AND STEPHEN
$2,475 FOR THE ENTIRE YEAR.  STEPHEN COMPLETED HIS EDUCATION BEFORE THE
MARRIAGE. 

/5/ SECTION 402 (D) IS HEADED " CHILD'S INSURANCE BENEFITS" AND
PROVIDES IN PERTINENT PART AS FOLLOWS: 

" EVERY CHILD . . . OF AN INDIVIDUAL WHO DIES A FULLY OR CURRENTLY
INSURED INDIVIDUAL, IF SUCH CHILD--, 

"(A) HAS FILED APPLICATION FOR CHILD'S INSURANCE BENEFITS, 

"(B) AT THE TIME SUCH APPLICATION WAS FILED WAS UNMARRIED AND (I)
EITHER HAD NOT ATTAINED THE AGE OF 18 OR WAS A FULL-TIME STUDENT AND
HAD NOT ATTAINED THE AGE OF 22, OR (II) IS UNDER A DISABILITY (AS
DEFINED IN SECTION 423 (D) OF THIS TITLE) WHICH BEGAN BEFORE HE
ATTAINED THE AGE OF 22, AND 

"(C) WAS DEPENDENT UPON SUCH INDIVIDUAL--,

        * * * * * 

"(II) IF SUCH INDIVIDUAL HAS DIED, AT THE TIME OF SUCH DEATH . . .,

        * * * * * SHALL BE ENTITLED TO A CHILD'S INSURANCE BENEFIT
FOR EACH MONTH, BEGINNING WITH THE FIRST MONTH AFTER AUGUST 1950 IN
WHICH SUCH CHILD BECOMES SO ENTITLED TO SUCH INSURANCE BENEFITS AND
ENDING WITH THE MONTH PRECEDING WHICHEVER OF THE FOLLOWING FIRST OCCURS
-, 

"(D) THE MONTH IN WHICH SUCH CHILD DIES OR MARRIES, 

"(E) THE MONTH IN WHICH SUCH CHILD ATTAINS THE AGE OF 18, BUT ONLY
IF HE (I) IS NOT UNDER A DISABILITY (AS SO DEFINED) AT THE TIME HE
ATTAINS SUCH AGE, AND (II) IS NOT A FULL-TIME STUDENT DURING ANY PART
OF SUCH MONTH." 

THUS, CHILD'S INSURANCE BENEFITS ARE NOW AVAILABLE WITHOUT REGARD TO
WHETHER THE WORKER UPON WHOSE EARNINGS BENEFITS ARE BASED IS THE MOTHER
OR FATHER.  THIS WAS NOT ALWAYS THE CASE.  ORIGINALLY, A CHILD COULD
RECEIVE BENEFITS BASED ON HIS MOTHER'S EARNINGS ONLY IF HE HAD NOT BEEN
LIVING WITH HIS FATHER AND WAS BEING SUPPORTED SOLELY BY HIS MOTHER. 
SOCIAL SECURITY AMENDMENTS OF AUG. 10, 1939, SEC. 202 (C), 53 STAT.
1364.  THIS PROVISION WAS AMENDED IN 1950 TO PROVIDE AUTOMATIC
ENTITLEMENT TO OTHERWISE ELIGIBLE CHILDREN OF WOMEN WORKERS WHO WERE
CURRENTLY INSURED, SEE NN. 1 AND 3, SUPRA, WHEN THEY DIED, BUT
RETAINING DEPENDENCY QUALIFICATIONS IF THE MOTHER'S COVERED EMPLOYMENT
WAS NOT RECENT.  SOCIAL SECURITY AMENDMENTS OF AUG. 28, 1950, SEC. 101
(A), AMENDING SEC. 202 (D), 64 STAT. 483.  EIN 1967, CHILDREN OF WOMEN
WORKERS WERE MADE ELIGIBLE FOR CHILDREN'S BENEFITS ON EXACTLY THE SAME
CRITERIA APPLIED TO CHILDREN OF MALE WORKERS.  SOCIAL SECURITY
AMENDMENTS OF 1967, PUB. L. 90 - 248, SEC. 151, 81 STAT. 860. 

/6/ APPELLEE SAID IN AN AFFIDAVIT THAT HE WAS TOLD ORALLY AT THE
SOCIAL SECURITY OFFICE THAT HE COULD NOT FILE AN APPLICATION FOR
BENEFITS ON HIS OWN BEHALF.  THE GOVERNMENT DOES NOT DISPUTE THAT THE
REQUEST FOR BENEFITS WAS ORALLY MADE AND ORALLY DENIED.  TR. OF ORAL
ARG. BEFORE DISTRICT COURT, JUNE 20, 1973, P. 45; 367 F. SUPP. 981, 985
N. 5. 

/7/ STEPHEN WIENSENFELD WAS EMPLOYED UNTIL OCTOBER 1972.  HOWEVER,
SINCE HE EARNED $2,475 FOR THE ENTIRE YEAR 1972, N. 4, SUPRA, HE
APPARENTLY WOULD HAVE BEEN ELIGIBLE FOR BENEFITS, WERE HE A WOMAN, FROM
JUNE 1972 UNTIL HE OBTAINED EMPLOYMENT AGAIN ON FEBRUARY 5, 1973, AT A
SALARY OF $1,500 PER MONTH.  THIS LAWSUIT WAS FILED ON FEBRUARY 24,
1973.  ON SEPTEMBER 14, 1973, APPELLEE WAS DISMISSED FROM HIS POSITION,
SO THAT HE WAS UNEMPLOYED AND AGAIN ELIGIBLE FOR BENEFITS, BUT FOR THE
GENDR-BASED DISTINCTION, WHEN THE LOWER COURT OPINION ISSUED ON
DECEMBER 11, 1973.  APPELLEE, IN AN AFFIDAVIT FILED IN SEPTEMBER 1973,
ASCRIBED HIS EMPLOYMENT DIFFICULTIES IN LARGE PART TO THE DIFFICULTIES
OF CHILDCARE.  IN PARTICULAR, HE NOTED THAT HE HAD "ENCOUNTERED SEVERE
DIFFICULTY IN OBTAINING THE SERVICES OF A SUITABLE HOUSEKEEPER, TO WHOM
I COULD CONSCIENTIOUSLY ENTRUST JASON'S CARE.  I HAVE EMPLOYED FOUR
HOUSEKEEPERS IN THE PAST YEAR . . . ." 

/8/ APPELLEE DID NOT SEEK ADMINISTRATIVE REVIEW OF THE DENIAL UNDER
42 U.S.C. SEC. 405 (B).  HOWEVER, THE GOVERNMENT STIPULATED THAT ANY
ADMINISTRATIVE APPEAL WOULD HAVE BEEN FUTILE, SINCE SEC. 402 (G) ON ITS
FACE PRECLUDES GRANTING BENEFITS TO MEN.  TR. OF ORAL ARG. BEFORE
DISTRICT COURT, JUNE 20, 1973, PP. 16 - 17.  NOR DOES THE GOVERNMENT
NOW CLAIM THAT SEC. 405 (H), WHICH PROVIDES THAT "(NO FINDINGS OF FACT
OR DECISION OF THE SECRETARY SHALL BE REVIEWED . . . EXCEPT AS HEREIN
PROVIDED" (SEE SEC. 405 (G)), IS A BAR TO THIS ACTION.  SEE PUBLIC
UTILITIES COMM'N OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, 539 -
540 (1958); RICHARDSON V. MORRIS, 40.  U.S. 464 (1973) (PER CURIAM);
GRIFFIN V. RICHARDSON, 346 F. SUPP. 1226 (MD.), AFF'D, 409 U.S. 1069
(1972). 

/9/ THE THREE-JUDGE COURT DECLINED TO PERMIT THE ACTION TO AS A
CLASS ACTION.  367 F. SUPP., AT 986 - 987.  NO APPEAL HAS BEEN TAKEN
FROM THIS RULING. 

/10/ THE COURT RECOGNIZED THAT THE JURISDICITONAL AMOUNT OF $10,000
UNDER 28 U.S.C. SEC. 1331 IS ESTABLISHED AS LONG AS IT DOES NOT "APPEAR
TO A LEGAL CERTAINTY" THAT THE MATTER IN CONTROVERSY DOES NOT TOTAL
$10,000, ST. PAUL MERCURY INDEMNITY CO. V. RED CAB CO., 303 U.S. 283,
289 (1938), AND THEREFORE THAT WHERE AN INJUNCTION COMMANDING FUTURE
PAYMENTS IS SOUGHT, THERE IS NO NEED TO AWAIT ACCRUAL OF $10,000 IN
BACK BENEFITS TO BRING SUIT.  HOWEVER, IT WAS TROUBLED BY THE FACT THAT
APPELLEE WAS EMPLOYED ON THE DAY SUIT WAS FILED, SEE N. 7, SUPRA, AND
THUS WOULD NOT HAVE BEEN ENTITLED TO BENEFITS ON THAT DAY.  IT HELD
THAT THERE WAS NONETHELESS JURISDICTION BECAUSE OF THE FUTILITY OF
DISMISSING THE SUIT WHEN THE PLAINTIFF COULD REFILE IMMEDIATELY AND
ESTABLISH JURISDICTION, SINCE HE WAS UNEMPLOYED BY THE TIME OF
DECISION.  WE BELIEVE THAT THERE WAS JURISDICTION IN ANY EVENT ON THE
DAY THE SUIT WAS FILED.  BENEFITS UNDER SEC. 402 (G) COULD BE AVAILABLE
TO APPELLEE, IF HE PREVAILED, UNTIL HIS INFANT CHILD BECAME 18, SEE
SEC. 402 (D), 402 (G), 402 (S)(1).  AT THE THEN-PREVAILING BENEFIT
RATES, APPELLEE WOULD REACH $10,000 IN BENEFITS IF HE COLLECTED FULL
BENEFITS FOR A LITTLE MORE THAN THREE YEARS, SEE SUPRA, AT 640 - 641. 
SOCIAL SECURITY BENEFITS ARE TO SOME DEGREE IN THE NATURE OF INSURANCE,
PROVIDING PRESENT SECURITY AND PEACE OF MIND FROM FEAR OF FUTURE LACK
OF EARNINGS.  ALSO, UNLIKE DISABILITY BENEFITS, SEE 42 U.S.C. SEC. 423,
THESE SURVIVORS' BENEFITS DO NOT DEPEND UPON ABILITY TO EARN, BUT ONLY
UPON ACTUAL EARNINGS.  THUS, THEY GIVE A POTENTIAL RECIPIENT A CHOICE
BETWEEN STAYING HOME TO CARE FOR THE CHILD AND WORKING.  THIS
OPPORTUNITY FOR CHOICE, AND THE POTENTIAL RIGHT TO AS MUCH AS $53,640
WORTH OF BENEFITS ($2,980 PER YEAR TIMES 18 YEARS), CERTAINLY HAS A
PRESENT VALUE OF $10,000, WHETHER OR NOT THE CLAIMANT WAS ELIGIBLE FOR
BENEFITS ON THE DAY HE FILED SUIT. 

/11/ SEE THE OBSERVATIONS IN FRONTIERO, 411 U.S. 677, 689 N. 23, THAT
IN VIEW OF THE LARGE PERCENTAGE OF MARRIED WOMEN WORKING (41.5% IN
1971), THE PRESUMPTION OF COMPLETE DEPENDENCY OF WIVES UPON HUSBANDS
HAS LITTLE RELATIONSHIP TO PRESENT REALITY.  IN THE SAME VEIN, TAYLOR
V. LOUISIANA, 419 U.S. 522 (1975), OBSERVED THAT CURRENT STATISTICS
BELIE "THE PRESUMED ROLE IN THE HOME" OF CONTEMPORARY WOMEN.  ID., AT
535 N. 17. 

/12/ CHANGES HAVE BEEN MADE IN THESE PROVISIONS.  FOR EXAMPLE,
BENEFITS ARE NOW AVAILABLE TO HUSBANDS AND AGED WIDOWERS OF COVERED
WORKERS IF THEY CAN SHOW THAT MORE THAN ONE-HALF OF THEIR SUPPORT HAS
BEEN PROVIDED BY THEIR WIVES.  42 U.S.C. SEC. 402 (C), 402 (F).  SEE
ALSO N. 5, SUPRA.  SEE GENERALLY NOTE, SEX CLASSIFICATIONS IN THE
SOCIAL SECURITY BENEFIT STRUCTURE, 49 IND. L. J. 181 (1973). 

/13/ SEE, E.G., H.R. REP. NO. 728, 76TH CONG., 1ST SESS., 36 (1959):
"(A) CHILD IS NOT USUALLY FINANCIALLY DEPENDENT UPON HIS MOTHER"; 84
CONG. REC. 6896 (1939) (REMARKS OF REP. COOPER):  "(WE NOW HAVE UNDER
THE PROVISIONS OF THIS BILL A PROGRAM ON A FAMILY BASIS, AND WE WILL
TAKE CARE OF THESE PEOPLE WHO WILL NEED THIS ASSISTANCE BECAUSE OF THE
LOSS OF THE FATHER OR THE HUSBAND AND THE LOSS OF THE PAY AND WAGES
THAT HE HAS BEEN BRINGING INTO THE FAMILY."  (EMPHASIS SUPPLIED.)  SEE
ALSO REPORT OF THE COMMITTEE ON SOCIAL INSURANCE AND TAXES, THE
PRESIDENTHS COMMISSION ON THE STATUS OF WOMEN 2.  (1963):  "  IT WAS
DECIDED AT THAT TIME THAT IF THE DETERMINATION OF DEPENDENCY WERE BASED
ON GENERALLY VALID PRESUMPTIONS, THERE WOULD BE NO BEEDN IN MOST
SITUATIONS FOR DETATILED INVESTIGATIONS OF FAMILY FINANCIAL
RELATIONSHIPS.  SINCE THE HUSBAND TRADITIONALLY WAS THE WAGE EARNER IN
THE FAMILY AND THE WIFE WAS THE HOMEMAKER, BENEFITS WERE PROVIDED FOR
WIVES, WIDOWS, AND CHILDREN ON THE BASIS OF PRESUMED DEPENDENCY ON THE
HUSBAND . . . ." 

/14/ SEE SUPRA, AT 644.  THERE HAS BEEN A CONTINUING TENSION IN THE
OASDI SYSTEM BETWEEN TWO GOALS:  INDIVIDUAL EQUITY, WHICH ACCORDS
BENEFITS COMMENSURATE WITH THE CONTRIBUTIONS MADE TO THE SYSTEM, AND
SOCIAL ADEQUACY, WHICH ASSURES TO ALL CONTRIBUTORS AND THEIR FAMILIES A
TOLERABLE STANDARD OF LIVING.  SEE J. PECHMAN, H. AARON & M. TAUSSIG,
SOCIAL SECURITY:  PERSPECTIVES FOR REFORM 33 - 34 (1968); REPORT OF THE
SOCIAL SECURITY BOARD, H.R. DOC. NO. 110, 76TH CONG., 1ST SESS., 5
(1939).  RATHER THAN ABANDONING EITHER GOAL, CONGRESS HAS TRIED TO MEET
BOTH, BY ASSURING THAT THE PROTECTION AFFORDED EACH CONTRIBUTOR IS AT
LEAST THAT WHICH HIS CONTRIBUTIONS COULD PURCHASE ON THE PRIVATE
MARKET.  SEE H.R. REP. NO. 728, 76TH CONG., 1ST SESS., 13 - 14 (1939);
H.R. REP. NO. 1300, 81ST CONG., 1ST SESS., 2 (1949). 

/15/ SEE 42 U.S.C. SEC. 414, 415 FOR THE CORRELATION BETWEEN YEARS
WORKED, AMOUNT EARNED, AND THE "PRIMARY INSURANCE AMOUNT," WHICH IS THE
AMOUNT RECEIVED BY FULLY INSURED EMPLOYEES UPON REACHING RETIREMENT
AGE.  BENEFITS UNDER SEC. 402 (G) ARE 75% OF THE PRIMARY INSURANCE
AMOUNT OF THE COVERED EMPLOYEE. 

/16/ THIS COURT NEED NOT IN EQUAL PROTECTION CASES ACCEPT AT FACE
VALUE ASSERTIONS OF LEGISLATIVE PURPOSES, WHEN AN EXAMINATION OF THE
LEGISLATIVE SCHEME AND ITS HISTORY DEMONSTRATES THAT THE ASSERTED
PURPOSE COULD NOT HAVE BEEN A GOAL OF THE LEGISLATION.  SEE EISENSTADT
V. BAIRD, 405 U.S. 438 (1972); JIMENEZ V. WEINBERGER, 417 U.S., AT 634;
U.S. DEPT. OF AGRICULTURE V. MORENO, 413 U.S. 528, 536 - 537 (1973). 

/17/ IN CERTAIN CASES, MOTHER'S BENEFITS UNDER SEC. 402 (G) CEASE
SOME CHILDREN ARE STILL ELIGIBLE FOR CHILDRENHS BENEFITS UNDER SEC. 402
(D).  IN PARTICULAR, CHILDREN CONTINUE TO BE ELIGIBLE FOR BENEFITS
WHILE FULLTIME STUDENTS UNTIL AGE 22 AND, IN SOME INSTANCES, FOR A FEW
MONTHS THEREAFTER.  SEC. 402 (D)(1)(F) AND (D)(7).  YET, BENEFITS TO
THE MOTHER UNDER SEC. 402 (G) CEASE IF ALL CHILDREN HAVE REACHED 18 AND
ARE NOT DISABLED.  SEC. 402 (S)(1).  THIS DISTINCTION ALSO SUSTAINS OUR
CONCLUSION THAT SEC. 402 (G) WAS INTENDED ONLY TO PROVIDE AN
OPPORTUNITY FOR CHILDREN TO RECEIVE THE PERSONAL ATTENTION OF ONE
PARENT, SINCE MOTHER'S BENEFITS ARE LINKED TO CHILDREN'S BENEFITS ONLY
SO LONG AS IT IS REALISTIC TO THINK THAT THE CHILDREN MIGHT NEED THEIR
PARENT AT HOME. 

/18/ ORIGIANLLY, NO DIVORCED WIVES WERE ENTITLED TO BENEFITS ON THE
BASIS OF THEIR FORMER HUSBANDS' EARNINGS.  THE PROVISION FOR SURVIVING
DIVORCED WIVES WHO ARE THE MOTHERS OF CHILDREN ENTITLED TO SURVIVORS'
BENEFITS WAS ADDED IN 1950.  SOCIAL SECURITY AMENDMENTS OF 1950, SEC.
101 (A), 64 STAT. 483.  IT WAS NOT UNTIL 1965 THAT BENEFITS WERE
PROVIDED FOR AGED DIVORCED WIVES AND WIDOWS, PREMISED UPON A 20-YEAR
MARRIAGE.  SOCIAL SECURITY AMENDMENTS OF 1965, PUB. L. 89 - 97, SEC.
308, 79 STAT. 375.  BOTH THESE GROUPS OF WOMEN WERE REQUIRED TO PROVE
DEPENDENCY UPON THE FORMER HUSBAND.  THE PROOOF-OF-DEPENDENCY
REQUIREMENTS WERE ELIMINATED IN 1972.  SOCIAL SECURITY AMENDMENTS OF
1972, PUB. L. 92 - 603, SEC. 114, 86 STAT. 1348.  THIS SEPARATE
DEVELOPMENT OF BENEFITS FRO DIVORCED WOMEN WITH CHILDREN AND THOSE
WITHOUT REINFORCES THE CONCLUSION THAT THE PRESENCE OF CHILDREN IS THE
RAISON D'ETRE OF SEC. 402 (G). 

/19/ THE COMMISSION ON RAILROAD RETIREMENT, COMMENTING UPON A
SIMILAR PROVISION OF THE RAILROAD RETIREMENT SYSTEM, SIGNIFICANTLY
STATED:  " STATISTICALLY SPEAKING, THERE ARE, OF COURSE, SIGNIFICANT
DIFFERENCES BY SEX IN THE ROLES PLAYED IN OUR SOCIETY.  FOR EXAMPLE,
FAR MORE WOMEN THAN MEN ARE PRIMARILY INVOLVED IN RAISING MINOR
CHILDREN.  BUT IF THE SOCIETY'S AIM IS TO FURTHER A SOCIALLY DESIRABLE
PURPOSE, E.G., BETTER CARE FOR GROWING CHILDREN, IT SHOULD TAILOR ANY
SUBSIDY DIRECTLY TO THE END DESIRED, NOT INDIRECTLY AND UNEQUALLY BY
HELPING WIDOWS WITH DEPENDENT CHILDREN AND IGNORING WIDOWERS IN THE
SAME PLIGHT.  IN THIS EXAMPLE, IT IS THE ECONOMIC AND FUNCITONAL
CAPABILITY OF THE SURVIVING BREADWINNER TO CARE FOR CHILDREN WHICH
COUNTS; THE SEX OF THE SURVIVING PARENT IS INCIDENTAL."  REPORT OF THE
COMMISSION ON RAILROAD RETIREMENT, RAILROAD RETIREMENT SYSTEM--, ITS
COMING CRISIS, H.R. DOC. NO. 92 - 350, P. 378 (1972).  (EMPHASIS
SUPPLIED.) 

/20/ PRECISELY THIS VIEW WAS EXPRESSED BY THE 1971 ADVISORY COUNCIL
ON SOCIAL SECURITY, WHOSE RECOMMENDATIONS UPON WHICH GENDER-BASED
DISTINCITONS IN THE OASDI SYSTEM TO RETAIN AND WHICH TO DISCARD WERE
FOLLOWED IN THE 1972 SOCIAL SECURITY AMENDEMNTS:  " THE COUNCIL
BELIEVES THAT IT IS UNNECESSARY TO OFFER THE SAME CHOICE (WHETHER TO
WORK OR CARE FOR SURVIVING CHILDREN) TO A MAN.  EVEN THOUGH MANY MORE
MARRIED WOMEN WORK TODAY THAN IN THE PAST, SO THAT THEY ARE BOTH
WORKERS AND HOMEMAKERS, VERY FEW MEN ADOPT SUCH A DUAL ROLE; THE
CUSTOMARY AND PREDOMINANT ROLE OF THE FATHER IS NOT THAT OF A HOMEMAKER
BUT RATHER THAT OF THE FAMILY BREADWINNER.  A MAN GENERALLY CONTINUES
TO WORK TO SUPPORT HIMSELF AND HIS CHILDREN AFTER THE DEATH OR
DISABILITY OF HIS WIFE.  THE COUNCIL THEREFORE DOES NOT RECOMMEND THAT
BENEFITS BE PROVIDED FOR A YOUNG FATHER WHO HAS CHILDREN IN HIS CARE." 
1971 REPORTS 30. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

I CONCUR IN THE JUDGMENT AND GENERALLY IN THE OPINION OF THE COURT. 
BUT I WOULD IDENTIFY THE IMPERMISSIBLE DISCRIMINATION EFFECTED BY SEC.
402 (G) SOMEWHAT MORE NARROWLY THAN THE COURT DOES.  SOCIAL SECURITY IS
DESIGNED, CERTAINLY IN THIS CONTEXT, FOR THE PROTECTION OF THE FAMILY. 
ALTHOUGH IT LACKS THE CONTRACTUAL ATTRIBUTES OF INSURANCE OR AN
ANNUITY, FLEMMING V. NESTOR, 363 U.S. 603 (1960), IT IS A CONTRIBUTORY
SYSTEM AND MILLIONS OF WAGE EARNERS DEPEND ON IT TO PROVIDE BASIC
PROTECTION FOR THEIR FAMILIES IN THE EVENT OF DEATH OR DISABILITY. 

MANY WOMEN ARE THE PRINCIPAL WAGE EARNERS FOR THEIR FAMILIES, AND
THEY PARTICIPATE IN THE SOCIAL SECURITY SYSTEM ON EXACTLY THE SAME
BASIS AS MEN.  WHEN THE MOTHER IS A PRINCIPAL WAGE EARNER, THE FAMILY
MAY SUFFER AS GREAT AN ECONOMIC DEPRIVATION UPON HER DEATH AS WOULD
OCCUR UPON THE DEATH OF A FATHER WAGE EARNER.  IT IS IMMATERIAL WHETHER
THE SURVIVING PARENT ELECTS TO ASSUME PRIMARY CHILD CARE RESPONSIBILITY
RATHER THAN WORK, OR WHETHER OTHER ARRANGEMENTS ARE MADE FOR CHILD
CARE.  THE STATUTORY SCHEME PROVIDES BENEFITS BOTH TO A SURVIVING
MOTHER WHO REMAINS AT HOME AND TO ONE WHO WORKS AT LOW WAGES.  A
SURVIVING FATHER MAY HAVE THE SAME NEED FOR BENEFITS AS A SURVIVING
MOTHER.  /1/ THE STATUTORY SCHEME THEREFORE IMPERMISSIBLY DISCRIMINATES
AGAINST A FEMALE WAGE EARNER BECAUSE IT PROVIDES HER FAMILY LESS
PROTECTION THAN IT PROVIDES THAT OF A MALE WAGE EARNER, EVEN THOUGH THE
FAMILY NEEDS MAY BE IDENTICAL.  I FIND NO LEGITIMATE GOVERNMENTAL
INTEREST THAT SUPPORTS THIS GENDER CLASSIFICATION. 

/1/ I ATTACH LESS SIGNIFICANCE TO THE VIEW EMPHASIZED BY THE COURT
THAT A PURPOSE OF THE STATUTE IS TO ENABLE THE SURVIVING PARENT TO
REMAIN AT HOME TO CARE FOR A CHILD.  IN LIGHT OF THE LONG EXPERIENCE TO
THE CONTRARY, ONE MAY DOUBT THAT FATHERS GENERALLY WILL FORGO WORK AND
REMAIN AT HOME TO CARE FOR CHILDREN TO THE SAME EXTENT THAT MOTHERS MAY
MAKE THIS CHOICE.  UNDER THE CURRENT STATUTORY PROGRAM, HOWEVER, THE
PAYMENT OF BENEFITS IS NOT CONDITIONED ON THE SURVIVING PARENT'S
DECISION TO REMAIN AT HOME. 

MR. JUSTICE REHNQUIST, CONCURRING IN THE RESULT. 

PART III B OF THE COURT'S OPINION CONTAINS A THOROUGH EXAMINATION OF
THE LEGISLATIVE HISTORY AND STATUTORY CONTEXT WHICH DEFINE THE ROLE AND
PURPOSE OF SEC. 402 (G).  I BELIEVE THE COURT'S EXAMINATION
CONVINCINGLY DEMONSTRATES THAT THE ONLY PURPOSE OF SEC. 402 (G) IS TO
MAKE IT POSSIBLE FOR CHILDREN OF DECEASED CONTRIBUTING WORKERS TO HAVE
THE PERSONAL CARE AND ATTENTION OF A SURVIVING PARENT, SHOULD THAT
PARENT DESIRE TO REMAIN IN THE HOME WITH THE CHILD.  MOREOVER, THE
COURT'S OPINION ESTABLISES THAT THE GOVERNMENT'S PROFFERED LEGISLATIVE
PURPOSE IS SO TOTALLY AT ODDS WITH THE CONTEXT AND HISTORY OF SEC. 402
(G) THAT IT CANNOT SERVE AS A BASIS FOR JUDGING WHETHER THE STATUTORY
DISTINCTION BETWEEN MEN AND WOMEN RATIONALLY SERVES A VALID LEGISLATIVE
OBJECTIVE. 

THIS BEING THE CASE, I SEE NO NECESSITY FOR REACHING THE ISSUE OF
WHETHER THE STATUTE'S PURPORTED DISCRIMINATION AGAINST FEMALE WORKERS
VIOLATES THE FIFTH AMENDMENT AS APPLIED IN FRONTIERO V. RICHARDSON, 411
U.S. 677 (1973).  I WOULD SIMPLY CONCLUDE, AS DOES THE COURT IN PART II
B OF ITS OPINION, THAT THE ESTRICTION OF SEC. 402 (G) BENEFITS TO
SURVIVING MOTHERS DOES NOT RATIONALLY SERVE ANY VALID LEGISLATIVE
PURPOSE, INCLUDING THAT FOR WHICH SEC. 402 (G) WAS OBVIOUSLY DESINGED. 
THIS IS SO BECAUSE IT SI IRRATIONAL TO DISTINGUISH BETWEEN MOTHERS AND
FATHER WHEN THE SOLE QUESTION IS WHETHER A CHILD OF A DECEASED
CONTRIBUTING WORKER SHOULD HAVE THE OPPORTUNITY TO RECEIVE THE FULLTIME
ATTENTION OF THE ONLY PARENT REMAINING TO IT.  TO MY MIND, THAT SHOULD
BE THE END OF THE MATTER.  I THEREFORE CONCUR IN THE RESULT. 

KEITH A. JONES ARGUED THE CAUSE FOR APPELLANT.  ON THE BRIEF WERE
SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL HILLS, AND DANNY J.
BOGGS. 

RUTH BADER GINSBURG ARGUED THE CAUSE FOR APPELLEE.  WITH HER ON THE
BRIEF WAS MELVIN L. WULF. 

NANCY STERNS FILED A BRIEF FOR THE CENTER FOR CONSTITUTIONAL RIGHTS
AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :











AUSTIN V. NEW HAMPSHIRE, 420 U.S. 656 


       AUSTIN ET AL. V. NEW HAMPSHIRE ET AL.

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE

        NO. 73 - 2060.  ARGUED JANUARY 15, 1975--DECIDED MARCH 19,

      1975; 114 N.H. 137, 316 A.2D 165, REVERSED. 


    THE NEW HAMPSHIRE COMMUTERS INCOME TAX IMPOSES A TAX ON TAX ON

  NONRESIDENTS' NEW HAMPSHIRE-DERIVED INCOME ABOVE $2,000 AT A 4%

  RATE, EXCEPT THAT IF THE NONRESIDENT'S STATE OF RESIDENCE WOULD

  IMPOSE A LESSER TAX HAD THE INCOME BEEN EARNED IN THAT STATE, THE

  NEW HAMPSHIRE TAX IS REDUCED TO THAT AMOUNT.  THE COMMUTERS

  INCOME TAX CONTAINS PROVISIONS THAT IN PRACTICAL EFFECT EXEMPT

  TAX INCOME EARNED BY NEW HAMPSHIRE RESIDENTS OUTSIDE THE STATE,

  AND NEW HAMPSHIRE IMPOSES NO TAX ON ITS RESIDENTS'  DOMESTIC

EARNED INCOME.  HELD:  UNDER THE RULE REQUIRING SUBSTANTIAL

  EQUALITY OF TREATMENT FOR THE CITIZENS OF THE TAXING STATE AND

  NON-RESIDENT TAXPAYERS, THE NEW HAMPSHIRE COMMUTERS INCOME TAX

  VIOLATES THE PRIVILEGES AND IMMUNITIES CLAUSE, SINCE THE TAX

  FALLS EXCLUSIVELY ON NONRESIDENTS' INCOMES AND IS NOT OFFSET EVEN

  APPROXIMATELY BY OTHER TAXES IMPOSED UPON RESIDENTS ALONE.  PP.

  665 - 668. 

(A) THE STATE'S CONTENTION THAT THE TAX'S ULTIMATE BURDEN IS

  NOT IN EFFECT MORE ONEROUS ON NONRESIDENTS BECAUSE THEIR TOTAL

  TAX LIABILITY IS UNCHANGED ONCE THE TAX CREDIT RECEIVED FROM

  THEIR STATE OF RESIDENCE IS TAKEN INTO ACCOUNT, CANNOT BE SQUARED

  WITH THE UNDERLYING POLICY OF COMITY THAT THE PRIVILEGES AND

  IMMUNITIES CLAUSE REQUIRES.  PP. 665 - 666. 

     (B) THE POSSIBILITY THAT IN THIS CASE MAINE, THE APPELLANT

  TAXPAYERS' STATE OF RESIDENCE, COULD SHIELD ITS RESIDENTS FROM

  THE NEW HAMPSHIRE TAX BY AMENDING ITS CREDIT PROVISIONS DOES NOT

  CURE, BUT IN FACT COMPOUNDS, THE CONSTITUTIONAL DEFECT OF THE

  DISCRIMINATION IN THE NEW HAMPSHIRE TAX, SINCE NEW HAMPSHIRE IN

  EFFECT INVITES APPELLANTS TO INDUCE THEIR REPRESENTATIVES TO

RETALIATE AGAINST SUCH DISCRIMINATION.  THE CONSTITUTIONALITY OF

  ONE STATE'S STATUTES AFFECTING NONRESIDENTS CANNOT DEPEND UPON

  THE PRESENT CONFIGURATION OF ANOTHER STATE'S STATUTES.  PP. 666 -

  668. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, POWELL, AND REHNQUIST,

  JJ., JOINED.  BLACKMUN, J., FILED A DISSENTING OPINION, POST, P.

668.  DOUGLAS, J., TOOK NO PART IN THE CONSIDERATION OR DECISION

  OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE RESIDENTS OF MAINE WHO WERE EMPLOYED IN NEW HAMPSHIRE
DURING THE 1970 TAX YEAR AND AS SUCH WERE SUBJECT TO THE NEW HAMPSHIRE
COMMUTERS INCOME TAX.  ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY
SITUATED, THEY PETITIONED THE NEW HAMPSHIRE SUPERIOR COURT FOR A
DECLARATION THAT THE TAX VIOLATES THE PRIVILEGES AND IMMUNITIES AND
EQUAL PROTECTION CLAUSES OF THE CONSTITUTIONS OF NEW HAMPSHIRE AND OF
THE UNITED STATES.  THE CAUSE WAS TRANSFERRED DIRECTLY TO THE NEW
HAMPSHIRE SUPREME COURT, WHICH UPHELD THE TAX.  114 N.H. 137, 316 A. 2D
165 (1974)9 WE NOTED PROBABLE JURISDICTION OF THE FEDERAL
CONSTITUTIONAL CLAIMS, 419 U.S. 822 (1974), AND ON THE BASIS OF THE
PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV, WE NOW REVERSE. 

        I 

THE NEW HAMPSHIRE COMMUTERS INCOME TAX IMPOSES A TAX ON
NONRESIDENTS' NEW HAMPSHIRE-DERIVED INCOME IN EXCESS OF $2,000.  /1/
THE TAX RATE IS 4% EXCEPT THAT IF THE NONRESIDENT TAXPAYER'S STATE OF
RESIDENCE WOULD IMPOSE A LESSER TAX HAD THE INCOME BEEN EARNED IN THAT
STATE, THE NEW HAMPSHIRE TAX IS REDUCED TO THE AMOUNT OF THE TAX THAT
THE STATE OF RESIDENCE WOULD IMPOSE.  EMPLOYERS ARE REQUIRED TO
WITHHOLD 4% OF THE NONRESIDENT'S INCOME, HOWEVER, EVEN IF HIS HOME
STATE WOULD TAX HIM AT LESS THAN THE FULL 4%.  ANY EXCESS TAX WITHHELD
IS REFUNDED TO THE NONRESIDENT UPON HIS FILING A NEW HAMPSHIRE TAX
RETURN AFTER THE CLOSE OF THE TAX YEAR SHOWING THAT HE IS ENTITLED TO
BE TAXED AT A RATE LESS THAN 4%. 

THE COMMUTERS INCOME TAX INITIALLY IMPOSES A TAX OF 4% AS WELL ON
THE INCOME EARNED BY NEW HAMPSHIRE RESIDENTS OUTSIDE THE STATE.  IT
THEN EXEMPTS SUCH INCOME FROM THE TAX, HOWEVER:  (1) IF IT IS TAXED BY
THE STATE FROM WHICH IT IS DERIVED; (2) IF IT IS EXEMPTED FROM TAXATION
BY THE STATE FROM WHICH IT IS DERIVED; OR (3) IF THE STATE FROM WHICH
IT IS DERIVED DOES NOT TAX SUCH INCOME.  /2/  THE EFFECT OF THESE
IMPOSITION AND EXEMPTION FEATURES IS THAT NO RESIDENT OF NEW HAMPSHIRE
IS TAXED ON HIS OUT-OF-STATE INCOME.  NOR IS THE DOMESTIC EARNED INCOME
OF NEW HAMPSHIRE RESIDENTS TAXED.  IN EFFECT, THEN, THE STATE TAXES
ONLY THE INCOMES OF NONRESIDENTS WORKING IN NEW HAMPSHIRE; /3/ IT IS ON
THE BASIS OF THIS DISPARATE TREATMENT OF RESIDENTS AND NONRESIDENTS
THAT APPELLANTS CHALLENGE NEW HAMPSHIRE'S RIGHT TO TAX THEIR INCOME
FROM EMPLOYMENT IN THAT STATE.  /4/ 

THE PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV, SEC. 2, CL.1,
PROVIDES:  " THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL
PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES."  THE
CLAUSE THUS ESTABLISHES A NORM OF COMITY WITHOUT SPECIFYING THE
PARTICULAR SUBJECTS AS TO WHICH CITIZENS OF ONE STATE COMING WITHIN THE
JURISDICITON OF ANOTHER ARE GUARANTEED EQUALITY OF TREATMENT.  THE
ORIGINS OF THE CLAUSE DO REVEAL, HOWEVER, THE CONCERNS OF CENTRAL
IMPORT TO THE FRAMERS.  DURING THE PRECONSTITUTIONAL PERIOD, THE
PRACTICE OF SOME STATES DENYING TO OUTLANDERS THE TREATMENT THAT ITS
CITIZENS DEMANDED FOR THEMSELVES WAS WIDESPREAD.  THE FOURTH OF THE
ARTICLES OF CONFEDERATION WAS INTENDED TO ARREST THIS CENTRIFUGAL
TENDENCY WITH SOME PARTICULARITY.  IT PROVIDED: 

" THE BETTER TO SECURE AND PERPETUATE MUTUAL FRIENDSHIP AND
INTERCOURSE AMONG THE PEOPLE OF THE DIFFERENT STATES IN THIS UNION, THE
FREE INHABITANTS OF EACH OF THESE STATES, PAUPERS, VAGABONDS AND
FUGITIVES FROM JUSTICE EXCEPTED, SHALL BE ENTITLED TO ALL PRIVILEGES
AND IMMUNITIES OF FREE CITIZENS IN THE SEVERAL STATES; AND THE PEOPLE
OF EACH STATE SHALL HAVE FREE INGRESS AND REGRESS TO AND FROM ANY OTHER
STATE, AND SHALL ENJOY THEREIN ALL THE PRIVILEGES OF TRADE AND
COMMERCE, SUBJECT TO THE SAME DUTIES, IMPOSITIONS AND RESTRICTIONS AS
THE INHABITANTS THEREOF RESPECTIVELY." 

THE DISCRIMINATIONS AT WHICH THIS CLAUSE WAS AIMED WERE BY NO MEANS
ERADICATED DURING THE SHORT LIFE OF THE CONFEDERATION, /5/ AND THE
PROVISION WAS CARRIED OVER INTO THE COMITY ARTICLE OF THE CONSTITUTION
IN BRIEFER FORM BUT WITH NO CHANGE OF SUBSTANCE OR INTENT, /6/ UNLESS
IT WAS TO STRENGTHEN THE FORCE OF THE CLAUSE IN FASHIONING A SINGLE
NATION.  /7/  THUS, IN THE FIRST, AND LONG THE LEADING, EXPLICATION OF
THE CLAUSE, MR. JUSTICE WASHINGTON, SITTING AS CIRCUIT JUSTICE, DEEMED
THE FUNDAMENTAL PRIVILEGES AND IMMUNITIES PROTECTED BY THE CLAUSE TO BE
ESSENTIALLY COEXTENSIVE WITH THOSE CALCULATED TO ACHIEVE THE PURPOSE OF
FORMING A MORE PERFECT UNION, INCLUDING "AN EXEMPTION FROM HIGHER TAXES
OR IMPOSITIONS THAN ARE PAID BY THE OTHER CITIZENS OF THE STATE." 
CORFIELD V. CORYELL, 6 F. CAS. 546, 552 (NO. 3,230) (CCED PA. 1825). 

IN RESOLVING CONSTITUTIONAL CHALLENGES TO STATE TAX MEASURES THIS
COURT HAS MADE IT CLEAR THAT "IN TAXATION, EVEN MORE THAN IN OTHER
FIELDS, LEGISLATURES POSSESS THE GREATEST FREEDOM IN CLASSIFICATION." 
MADDEN V. KENTUCKY, 309 U.S. 83, 88 (1940).  SEE LEHNHAUSEN V. LAKE
SHORE AUTO PARTS CO., 410 U.S. 356 (1973).  OUR REVIEW OF TAX
CLASSIFICATIONS HAS GENERALLY BEEN CONCOMITANTLY NARROW, THEREFORE, TO
FIT THE BROAD DISCRETION VESTED IN THE STATE LEGISLATURES.  WHEN A TAX
MEASURE IS CHALLENGED AS AN UNDUE BURDEN ON AN ACTIVITY GRANTED SPECIAL
CONSTITUTIONAL RECOGNITION, HOWEVER, THE APPROPRIATE DEGREE OF INQUIRY
IS THAT NECESSARY TO PROTECT THE COMPETING CONSTITUTIONAL VALUE FROM
EROSION.  SEE ID., AT 359. 

THIS CONSIDERATION APPLIES EQUALLY TO THE PROTECTION OF INDIVIDUAL
LIBERTIES, SEE GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233 (1936), AND
TO THE MAINTENANCE OF OUR CONSTITUTIONAL FEDERALISM.  SEE MICHIGAN
WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S. 157, 164 (1954).  THE
PRIVILEGES AND IMMUNITIES CLAUSE, BY MAKING NONCITIZENSHIP OR
NONRESIDENCE /8/ AN IMPROPER BASIS FOR LOCATING A SPECIAL BURDEN,
IMPLICATES NOT ONLY THE INDIVIDUAL'S RIGHT TO NONDISCRIMINATORY
TREATMENT BUT ALSO, PERHAPS MORE SO, THE STRUCTURAL BALANCE ESSENTIAL
TO THE CONCEPT OF FEDERALISM.  SINCE NONRESIDENTS ARE NOT REPRESENTED
IN THE TAXING STATE'S LEGISLATIVE HALLS, CF. ALLIED STORES OF OHIO,
INC. V. BOWERS, 358 U.S. 522, 532 - 533 (1959) (BRENNAN, J.,
CONCURRING), JUDICIAL ACQUIENSCENCE IN TAXATION SCHEMES THAT BURDEN
THEM PARTICULARLY WOULD REMIT THEM TO SUCH REDRESS AS THEY COULD SECURE
THROUGH THEIR OWN STATE; BUT "TO PREVENT (RETALIATION) WAS ONE OF THE
CHIEF ENDS SOUGHT TO BE ACCOMPLISHED BY THE ADOPTION OF THE
CONSTITUTION."  TRAVIS V. YALE & TOWNE MFG. CO., 252 U.S. 60, 82
(1920).  OUR PRIOR CASES, THEREFORE, REFLECT AN APPROPRIATELY
HEIGHTENED CONCERN FOR THE INTEGRITY OF THE PRIVILEGES AND IMMUNITIES
CLAUSE BY ERECTING A STANDARD OF REVIEW SUBSTANTIALLY MORE RIGOROUS
THAN THAT APPLIED TO STATE TAX DISTINCTIONS AMONG, SAY, FORMS OF
BUSINESS ORGANIZATIONS OR DIFFERENT TRADES AND PROFESSIONS. 

THE FIRST SUCH CASE WAS WARD V. MARYLAND, 12 WALL.  418 (1871),
CHALLENGING A STATUTE UNDER WHICH NONRESIDENTS WERE REQUIRED TO PAY
$300 PER YEAR FOR A LICENSE TO TRADE IN GOODS NOT MANUFACTURED IN
MARYLAND, WHILE RESIDENT TRADERS PAID A FEE VARYING FROM $12 TO $150,
DEPENDING UPON THE VALUE OF THEIR INVENTORY.  THE STATE ATTEMPTED TO
JUSTIFY THIS DISPARITY AS A RESPONSE TO THE PRACTICE OF "RUNNERS" FROM
INDUSTRIAL STATES SELLING BY SAMPLE IN MARYLAND, FREE FROM LOCAL
TAXATION AND OTHER OVERHEAD EXPENSES INCURRED BY RESIDEN MERCHANTS.  IT
PORTRAYED THE FEE AS A "TAX UPON A PARTICULAR BUSINESS OR TRADE,
CARRIED ON IN A PARTICULAR MODE," RATHER THAN A DISCRIMINATION AGAINST
TRADERS FROM OTHER STATES.  ALTHOUGH THE TAX MAY NOT HAVE BEEN
"PALPABLY ARBITRARY," SEE ALLIED STORES OF OHIO, INC. V. BOWERS, SUPRA,
AT 530, THE DISCRIMINATION COULD NOT BE DENIED AND THE COURT HELD THAT
IT VIOLATED THE GUARANTEE OF THE PRIVILEGES AND IMMUNITIES CLAUSE
AGAINST "BEING SUBJECTED TO ANY HIGHER TAX OR EXCISE THAN THAT EXACTED
BY LAW OF . . . PERMANENT RESIDENTS."  /9/ 

IN TRAVELLERS' INSURANCE CO. V. CONNECTICUT, 185 U.S. 364 (1902), THE
COURT CONSIDERED A TAX LAID ON THE VALUE OF STOCK IN LOCAL INSURANCE
CORPORATIONS.  THE SHARES OF NONRESIDENT STOCKHOLDERS WERE ASSESSED AT
THEIR MARKET VALUE, WHILE THOSE OWNED BY RESIDENTS WERE ASSESSED AT
MARKET VALUE LESS THE PROPORTIONATE VALUE OF ALL REAL ESTATE HELD BY
THE CORPORATION AND ON WHICH IT HAD ALREADY PAID A LOCAL PROPERTY TAX. 
IN ANALYZING THE APPARENT DISCRIMINATION THUS WORKED AGAINST
NONRESIDENTS, THE COURT TOOK ACCOUNT OF THE OVERALL DISTRIBUTION OF THE
TAX BURDEN BETWEEN RESIDENT AND NONRESIDENT STOCKHOLDERS.  FINDING THAT
NONRESIDENTS PAID NO LOCAL PROPERTY TAXES, WHILE RESIDENTS PAID THOSE
TAXES AT AN AVERAGE RATE APPROXIMATING OR EXCEEDING THE RATE IMPOSED BY
THE STATE ON NONRESIDENTS' STOCK, THE COURT UPHELD THE SCHEME.  WHILE
MORE PRECISE EQUALITY BETWEEN THE TWO CLASSES COULD HAVE BEEN OBTAINED,
IT WAS "ENOUGH THAT THE STATE HAS SECURED A REASONABLY FAIR
DISTRIBUTION OF BURDENS, AND THAT NO INTENTIONAL DISCRIMINATION HAS
BEEN MADE AGAINST NON-RESIDENTS."  THEIR CONTRIBUTION TO STATE AND
LOCAL PROPERTY TAX REVENUES, THAT IS, WAS NO MORE THAN THE RATABLE
SHARE OF THEIR PROPERTY WITHIN THE STATE. 

THE PRINCIPLES OF WARD AND TRAVELLERS' WERE APPLIED TO TAXES ON
NONRESIDENTS' LOCAL INCOMES IN SHAFFER V. CARTER, 252 U.S. 37 (1920),
AND TRAVIS V. YALE & TOWNE MFG. CO., SUPRA.  SHAFFER UPHELD THE
OKLAHOMA TAX ON INCOME DERIVED FROM LOCAL PROPERTY AND BUSINESS BY A
NONRESIDENT WHERE THE STATE ALSO TAXED THE INCOME--FROM WHEREEVER
DERIVED--OF ITS OWN CITIZENS.  PUTTING ASIDE "THEORETICAL DISTINCTIONS"
AND LOOKING TO "THE PRACTICAL EFFECT AND OPERATION" OF THE SCHEME, THE
NONRESIDENT WAS NOT TREATED MORE ONEROUSLY THAN THE RESIDENT IN ANY
PARTICULAR, AND IN FACT WAS CALLED UPON TO MAKE NO MORE THAN HIS
RATABLE CONTRIBUTION TO THE SUPPORT OF THE STATE GOVERNMENT.  THE NEW
YORK TAX ON RESIDENTS' AND NONRESIDENTS' INCOME AT ISSUE IN TRAVIS, BY
CONTRAST, COULD NOT BE SUSTAINED WHEN ITS ACTUAL EFFECT WAS
CONSIDERED.  THE TAX THERE GRANTED PERSONAL EXEMPTIONS TO EACH RESIDENT
TAXPAYER FOR HIMSELF AND EACH DEPENDENT, BUT IT MADE NO SIMILAR
PROVISION FOR NONRESIDENTS.  THE DISPARITY COULD NOT BE "DEEMED TO BE
COUNTERBALANCED" BY AN EXEMPTION FOR NONRESIDENTS' INTEREST AND
DIVIDEND INCOME BECAUSE IT WAS NOT LIKELY "TO BENEFIT NON-RESIDENTS TO
A DEGREE CORRESPONDING TO THE DISCRIMINATION AGAINST THEM."  LOOKING TO
"THE CONCRETE, THE PARTICULAR INCIDENCE" OF THE TAX, THEREFORE, THE
COURT SAID OF THE MANY NEW JERSEY AND CONNECTICUT RESIDENTS WHO WORKED
IN NEW YORK: 

" THEY PURSUE THEIR SEVERAL OCCUPATIONS SIDE BY SIDE WITH RESIDENTS
OF THE STATE OF NEW YORK--IN EFFECT COMPETING WITH THEM AS TO WAGES,
SALARIES, AND OTHER TERMS OF EMPLOYMENT.  WHETHER THEY MUST PAY A TAX
UPON THE FIRST $1,000 OR $2,000 OF INCOME, WHILE THEIR ASSOCIATES AND
COMPETITIRS WHO RESIDE IN NEW YORK DO NOT, MAKES A SUBSTANTIAL
DIFFERENCE.  . . . THIS IS NOT A CASE OF OCCASIONAL OR ACCIDENTAL
INEQUALITY DUE TO CIRCUMSTANCES PERSONAL TO THE TAXPAYER . . . BUT A
GENERAL RULE, OPERATING TO THE DISADVANTAGE OF ALL NON-RESIDENTS . . .
AND FAVORING ALL RESIDENTS.  . . ."  252 U.S., AT 80 - 81 (CITATIONS
OMITTED). 

        III 

AGAINST THIS BACKGROUND ESTABLISHING A RULE OF SUBSTANTIAL EQUALITY
OF TREATMENT FOR THE CITIZENS OF THE TAXING STATE AND NONRESIDENT
TAXPAYERS, THE NEW HAMPSHIRE COMMUTERS INCOME TAX CANNOT BE SUSTAINED. 
THE OVERWHELMING FACT, AS THE STATE CONCEDES, IS THAT THE TAX FALLS
EXCLUSIVELY ON THE INCOME OF NONRESIDENTS; AND IT IS NOT OFFSET EVEN
APPROXIMATELY BY OTHER TAXES IMPOSED UPON RESIDENTS ALONE.  /10/
RATHER, THE ARGUMENT ADVANCED IN FAVOR OF THE TAX IS THAT THE ULTIMATE
BURDEN IT IMPOSES IS "NOT MORE ONEROUS IN EFFECT," SHAFFER V. CARTER,
SUPRA, ON NONRESIDENTS BECAUSE THEIR TOTAL STATE TAX LIABILITY IS
UNCHANGED ONCE THE TAX CREDIT THEY RECEIVE FROM THEIR STATE OF
RESIDENCE IS TAKEN INTO ACCOUNT.  SEE N. 4, SUPRA.  WHILE THIS ARGUMENT
HAS AN INITIAL APPEAL, IT CANNOT BE SQUARED WITH THE UNDERLYING POLICY
OF COMITY TO WHICH THE PRIVILEGES AND IMMUNITIES CLAUSE COMMITS US. 

ACCORDING TO THE STATE'S THEORY OF THE CASE, THE ONLY PRACTICAL
EFFECT OF THE TAX IS TO DIVERT TO NEW HAMPSHIRE TAX REVENUES THAT WOULD
OTHERWISE BE PAID TO MAINE, AN EFFECT ENTIRELY WITHIN MAINE'S POWER TO
TERMINATE BY REPEAL OF ITS CREDIT PROVISION FOR INCOME TAX PAID TO
ANOTHER STATE.  THE MAINE LEGISLATURE COULD DO THIS, PRESUMABLY, BY
AMENDING THE PROVISION SO AS TO DENY A CREDIT FOR TAXES PAID TO NEW
HAMPSHIRE WHILE RETAINING IT FOR THE OTHER 49 STATES.  PUTTING ASIDE
THE ACCEPTABILITY OF SUCH A SCHEME, AND THE RELEVANCE OF ANY INCREASE
IN APPELLANTS' HOME STATE TAXES THAT THE DIVERSIONARY EFFECT IS SAID TO
HAVE, /11/ WE DO NOT THINK THE POSSIBILITY THAT MAINE COULD SHIELD ITS
RESIDENTS FROM NEW HAMPSHIRE'S TAX CURES THE CONSTITUTIONAL DEFECT OF
THE DISCRIMINATION IN THAT TAX.  IN FACT, IT COMPOUNDS IT.  FOR NEW
HAMPSHIRE IN EFFECT INVITES APPELLANTS TO INDUCE THEIR REPRESENTATIVES,
IF THEY CAN, TO RETALIATE AGAINST IT. 

A SIMILAR, THOUGH MUCH LESS DISRUPTIVE, INVITATION WAS EXTENDED BY
NEW YORK IN SUPPORT OF THE DISCRIMINATORY PERSONAL EXEMPTION AT ISSUE
IN TRAVIS.  THE STATUTE GRANTED THE NONRESIDENT A CREDIT FOR TAXES PAID
TO HIS STATE OF RESIDENCE ON NEW YORK-DERIVED INCOME ONLY IF THAT STATE
GRANTED A SUBSTANTIALLY SIMILAR CREDIT TO NEW YORK RESIDENTS SUBJECT OT
ITS INCOME TAX.  NEW YORK CONTENDED THAT IT THUS "LOOKED FORWARD TO THE
SPEEDY ADOPTION OF AN INCOME TAX BY THE ADJOINING STATES," WHICH WOULD
ELIMINATE THE DISCRIMINATION "BY PROVIDING SIMILAR EXEMPTIONS SIMILARLY
CONDITIONED."  TO THIS THE COURT RESPONDED IN TERMS FULLY APPLICABLE TO
THE PRESENT CASE.  REFERRING TO THE ANTICIPATED LEGISLATIVE RESPONSE OF
THE NEIGHBORING STATES, IT STATES:     " THIS, HOWEVER, IS WHOLLY
SPECULATIVE; NEW YORK HAS NO AUTHORITY TO LEGISLATE FOR THE ADJOINING
STATES; AND WE MUST PASS UPON ITS STATUTE WITH RESPECT TO ITS EFFECT
AND OPERATION IN THE EXISTING SITUATION . . . . A STATE MAY NOT BARTER
AWAY THE RIGHT, CONFERRED UPON ITS CITIZENS BY THE CONSTITUTION OF THE
UNITED STATES, TO ENJOY THE PRIVILEGES AND IMMUNITIES OF CITIZENS WHEN
THEY GO INTO OTHER STATES.  NOR CAN DISCRIMINATION BE CORRECTED BY
RETALIATION; TO PREVENT THIS WAS ONE OF THE CHIEF ENDS SOUGHT OT BE
ACCOMPLISHED BY THE ADOPTION OF THE CONSTITUTIN."  252 U.S., AT 82. 
/12/ NOR, WE MAY ADD, CAN THE CONSTITUTIONALITY OF ONE STATE'S STATUTES
AFFECTING NONRESIDENTS DEPEND UPON THE PRESENT CONFIGURATION OF THE
STATUTES OF ANOTHER STATE. 

SINCE WE DISPOSE OF THIS CASE UNDER ART. IV, SEC. 2, OF THE
CONSTITUTION, WE HAVE NO OCCASION TO ADDRESS THE EQUAL PROTECTION
ARGUMENTS DIRECTED AT THE DISPARATE TREATMENT OF RESIDENTS AND
NONRESIDENTS AND AT THAT FEATURE OF THE STATUTE THAT CAUSES THE RATE OF
TAXATION IMPOSED UPON NONRESIDENTS TO VARY AMONG THEM DEPENDING UPON
THE RATE ESTABLISHED BY THEIR STATE OF RESIDENCE. 

                                  REVERSED. 

/1/ N.H. REV. STAT. ANN. SEC. 77-B:2 II (1971) PROVIDES:  " A TAX IS
HEREBY IMPOSED UPON EVERY TAXABLE NONRESIDENT, WHICH SHALL BE LEVIED,
COLLECTED AND PAID ANNUALLY AT THE RATE OF FOUR PERCENT OF THEIR NEW
HAMPSHIRE DERIVED INCOME . . . LESS AN EXEMPTION OF TWO THOUSAND
DOLLARS; PROVIDED, HOWEVER, THAT IF THE TAX HEREBY IMPOSED EXCEEDS THAT
TAX WHICH WOULD BE IMPOSED UPON SUCH INCOME BY THE STATE OF RESIDENCE
OF THE TAXPAYER, IF SUCH INCOME WERE EARNED IN SUCH STATE, THE TAX
HEREBY IMPOSED SHALL BE REDUCED TO EQUAL THE TAX WHICH WOULD BE IMPOSED
BY SUCH OTHER STATE." 

/2/ N.H. REV. STAT. ANN. SEC. 77-B:2 I (1971) PROVIDES:  " A TAX IS
HEREBY IMPOSED UPON EVERY RESIDENT OF THE STATE, WHICH SHALL BE LEVIED,
COLLECTED AND PAID ANNUALLY AT THE RATE OF FOUR PERCENT OF THEIR INCOME
WHICH IS DERIVED OUTSIDE THE STATE OF NEW HAMPSHIRE . . .; PROVIDED,
HOWEVER, THAT IF SUCH INCOME SHALL BE SUBJECT TO A TAX IN THE STATE IN
WHICH IT IS DERIVED, SUCH TAX SHALL CONSTITUTE FULL SATISFACTION OF THE
TAX HEREBY IMPOSED; AND PROVIDED FURTHER, THAT IF SUCH INCOME IS EXEMPT
FROM TAXATION BECAUSE OF STATUTORY OR CONSTITUTIONAL PROVISIONS IN THE
STATE IN WHICH IT IS DERIVED, OR BECAUSE THE STATE IN WHICH IT IS
DERIVED DOES NOT IMPOSE AN INCOME TAX ON SUCH INCOME, IT SHALL BE
EXEMPT FROM TAXATION UNDER THIS PARAGRAPH." 

/3/ NEW HAMPSHIRE RESIDENTS PAY A 4.5% TAX ON INTEREST (OTHER THAN
INTEREST ON NOTES AND BONDS OF THE STATE AND ON BANK DEPOSITS) AND
DIVIDENDS (OTHER THAN CASH DIVIDENDS ON STOCK IN NATIONAL BANKS AND NEW
HAMPSHIRE BANKS AND THRIFT INSTITUTIONS) IN EXCESS OF $600.  N.H. REV.
STAT. ANN. SEC. 77:1 - 5 (1971).  RESIDENTS ALSO PAY A $10 ANNUAL
"RESIDENT TAX" FOR THE USE OF THEIR TOWN OR CITY OF RESIDENCE.  N.H.
REV. STAT. ANN. SEC. 72:1, 5-A (SUPP. 1973).  OTHER STATE TAXES, SUCH
AS THOSE ON BUSINESS PROFITS, REAL ESTATE TRANSFERS, AND PROPERTY, ARE
PAID BY RESIDENTS AND NONRESIDENTS ALIKE. 

STATE INCOME TAX REVENUES FROM THE TAX ON RESIDENTS' UNEARNED INCOME
IN FISCAL YEAR 1970 WERE $3,462,000.  IN FISCAL YEAR 1971, THE FIRST IN
WHICH THE STATE TAXED THE EARNED INCOME OF NONRESIDENTS, TOTAL INCOME
TAX REVENUES ROSE TO $5,238,000.  U.S. DEPT. OF COMMERCE, BUREAU OF THE
CENSUS, STATE TAX COLLECTIONS IN 1970 (SERIES GF70 NO. 1) AND IN 1971
(SERIES GF71 NO. 1), P. 26. 

/4/ APPELLEES CHALLENGE APPELLANTS' STANDING TO MAINTAIN THIS ACTION
ON THE THEORY THAT THEIR ECONOMIC POSITION WAS UNCHANGED DESPITE THE
IMPOSITION OF THE COMMUTERS INCOME TAX BECAUSE THEY RECEIVED AN
OFFSETTING CREDIT UNDER THE TAX LAWS OF MAINE, ME. REV. STAT. ANN.,
TIT. 36, SEC. 5127 (SUPP. 1973), AGAINST INCOME TAXES OWING TO THAT
STATE; THE APPELLANTS' TOTAL TAX LIABILITY, THAT IS, WAS UNAFFECTED. 
WE THINK THE QUESTION IS COVERED, HOWEVER, BY THE HOLDING OF ALLIED
STORES OF OHIO, INC. V. BOWERS, 358 U.S. 522 (1959).  IN ADDITION,
APPELLANTS ARE AFFECTED BY THE REQUIREMENTS THAT THEY FILE A NEW
HAMPSHIRE TAX RETURN AND THAT THEIR EMPLOYERS WITHHOLD 4% OF THEIR
EARNINGS; SINCE THE APPELLEES DO NOT SUGGEST THAT APPELLANTS ARE
SUBJECT TO THE TAX AT THE 4% RATE, AT THE VERY LEAST THE WITHHOLDING
REQUIREMENT DEPRIVES THEM OF THE USE VALUE OF THE EXCESS WITHHELD OVER
THEIR ULTIMATE TAX LIABILITY, IF ANY.  THESE EFFECTS MAY NOT BE
SUBSTANTIAL, BUT THEY ESTABLISH APPELLANTS' STATUS AS PARTIES
"ADVERSELY AFFECTED" BY THE STATE'S TAX LAWS, GIVING THEM "A DIRECT
STAKE IN THE OUTCOME" OF THIS LITIGATION.  SIERRA CLUB V. MORTON, 405
U.S. 727, 740 (1972). 

/5/ JAMES MADISON, IN A COMMENTARY ON THE PLAN OF UNION PROPOSED BY
WILLIAM PATERSON OF NEW JERSEY, WROTE:  " WILL IT PREVENT TRESPASSES OF
THE STATES ON EACH OTHER?  OF THESE ENOUGH HAS BEEN ALREADY SEEN.  HE
INSTANCED ACTS OF VIRGA.  & MARYLAND WHICH GIVE A PREFERENCE TO THEIR
OWN CITIZENS IN CASES WHERE THE CITIZENS (OF OTHER STATES) ARE ENTITLED
TO EQUALITY OF PRIVILEGES BY THE ARTICLES OF CONFEDERATION."  1 M.
FARRAND, RECORDS OF THE FEDERAL CONVENTION 317 (1911). 

/6/ CHARLES PINCKNEY, WHO DRAFTED THE SHORTER VERSION NOW FOUND IN
ART. IV, SEC. 2, CL. 1, SEE 37 ANNALS OF CONG. 1129 (1821), ASSURED THE
CONVENTION THAT "(THE 4TH ARTICLE, RESPECTING THE EXTENDING THE RIGHTS
OF THE CITIZENS OF EACH STATE, THROUGHOUT THE UNITED STATES (ETC.) IS
FORMED EXACTLY UPON THE PRINCIPLES OF THE 4TH ARTICLE OF THE PRESENT
CONFEDERATION . . . " 3 M. FARRAND, SUPRA, AT 112.  FOR AN EXPLANATION
OF THE DELETION OF CERTAIN PHRASES FOUND IN ART IV OF THE CONFEDERATION
IN LIGHT OF THE FUGITIVE SLAVE AND COMMERCE CLAUSES OF THE
CONSTITUTION, SEE LEMMON V. PEOPLE, 20 N.Y. 562, 627 (1860) (OPINION OF
WRIGHT, J.). 

/7/ LEMMON V. PEOPLE, SUPRA, AT 607 (1860) (DENIO, J.); SEE PAUL V.
VIRGINIA, 8 WALL.  168, 180 (1869). 

/8/ FOR PURPOSES OF ANALYZING A TAXING SCHEME UNDER THE PRIVILEGES
AND IMMUNITIES CLAUSE THE TERMS "CITIZEN" AND "RESIDENT" ARE
ESSENTIALLY INTERCHANGEABLE.  TRAVIS V. YALE & TOWNE MFG. CO., 252 U.S.
60, 79 (1920) ("A GENERAL TAXING SCHEME . . . IF IT DISCRIMINATES
AGAINST ALL NON-RESIDENTS, HAS THE NECESSARY EFFECT OF INCLUDING IN THE
DISCRIMINATION THOSE WHO ARE CITIZENS OF OTHER STATES"); SMITH V.
LOUGHMAN, 245 N.Y. 486, 492, 157 N.E. 753, 755, CERT. DENIED, 275 U.S.
560 (1927); SEE TOOMER V. WITSELL, 334 U.S. 385, 397 (1948). 

/9/ ACCORD, TOOMER V. WITSELL, SUPRA, AT 396, WHERE THE COURT HELD
INVALID ANOTHER DISPARATE LICENSING-FEE SYSTEM, CITING WARD V. MARYLAND
FOR THE PROPOSITION THAT "IT WAS LONG AGO DECIDED THAT ONE OF THE
PRIVILEGES WHICH THE CLAUSE GUARANTEES TO CITIZENS OF STATE A IS THAT
OF DOING BUSINESS IN STATE B ON TERMS OF SUBSTANTIAL EQUALITY WITH THE
CITIZENS OF THAT STATE."  (EMPHASIS ADDED.) 

/10/ THE $10 ANNUAL RESIDENT TAX AND THE TAX ON CERTAIN UNEARNED
INCOME IN EXCESS OF $600 WOULD RARELY EQUAL, MUCH LESS EXCEED, THE 4%
TAX ON NONRESIDENTS' INCOMES OVER $2,000.  APPELLANT LOGAN, FOR
EXAMPLE, WITH $33,000 OF NEW HAMPSHIRE-DERIVED INCOME, PAID $252 IN
TAXES TO THAT STATE; A RESIDENT WITH THE SAME EARNED INCOME WOULD HAVE
PAID ONLY THE $10 RESIDENT TAX.  AGAINST THIS DISPARITY AND THE
DISPARITIES AMONG NONRESIDENTS' TAX RATES DEPENDING ON THEIR STATE OF
RESIDENCE, WE FIND NO SUPPORT IN THE RECORD FOR THE ASSERTION OF THE
COURT BELOW THAT THE COMMUTERS INCOME TAX CREATES NO MORE THAN A
"PRACTICAL EQUALITY" BETWEEN RESIDENTS AND NONRESIDENTS WHEN THE TAXES
PAID ONLY BY RESIDENTS ARE TAKEN INTO ACCOUNT.  "(SOMETHING MORE--TO
ESTABLISH THE VALIDITY OF A TAXING STATUTE THAT ON ITS FACE
DISCRIMINATES AGAINST NONRESIDENTS.  MULLANEY V. ANDERSON, 342 U.S.
415, 418 (1952). 

/11/ THE STATES OF MAINE AND VERMONT, AMICI CURIAE, POINT OUT THAT
AT LEAST $400,000 WAS DIVERTED FROM MAINE TO NEW HAMPSHIRE BY REASON OF
THE CHALLENGED TAX AND MAINE'S TAX CREDIT IN 1971, AND THAT THE AVERAGE
MAINE TAXPAYER, APPELLANTS INCLUDED, THEREBY BORE AN ADDITIONAL BURDEN
OF 40 CENTS IN MAINE TAXES.  WHILE THE INFERENCE IS STRONG, WE DEEM THE
PRESENT RECORD INSUFFICIENT TO DEMONSTRATE THAT MAINE TAXES WERE
ACTUALLY HIGHER THAN THEY OTHERWISE WOULD HAVE BEEN BUT FOR THIS
REVENUE LOSS. 

/12/ NEITHER TRAVIS NOR THE PRESENT CASE SHOULD BE TAKEN IN ANY WAY
TO DENIGRATE THE VALUE OF RECIPROCITY IN SUCH MATTERS.  THE EVIL AT
WHICH THEY ARE AIMED IS THE UNILATERAL IMPOSITION OF A DISADVANTAGE
UPON NONRESIDENTS, NOT RECIPROCALLY FAVORABLE TREATMENT OF NONRESIDENTS
BY STATES THAT COORDINATE THEIR TAX LAWS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JSUTICE BLACKMUN, DISSENTING. 

FOR ME, THIS IS A NONCASE.  I WOULD DISMISS THE APPEAL FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  WE HAVE FAR MORE URGENT DEMANDS UPON OUR
LIMITED TIME THAN THIS KIND OF LITIGATION. 

BECAUSE THE NEW HAMPSHIRE INCOME TAX STATUTES OPERATE IN SUCH A WAY
THAT NO NEW HAMPSHIRE RESIDENT IS ULTIMATELY SUBJECTED TO THE STATE'S
INCOME TAX, THE CASE AT FIRST GALNCE APPEARS TO HAVE SOME ATTRACTION. 
THAT ATTRACTION, HOWEVER, IS SUPERFICIAL AND, UPON CAREFUL ANALYSIS,
PROMPTLY FADES AND DISAPPEARS ENTIRELY.  THE REASON THESE APPELLANTS,
WHO ARE RESIDENTS OF MAINE, NOT OF NEW HAMPSHIRE, PAY A NEW HAMPSHIRE
TAX IS BECAUSE THE MAINE LEGISLATURE--THE APPELLANTS' OWN DULY ELECTED
REPRESENTATIVES--HAS GIVEN NEW HAMPSHIRE THE OPTION TO DIVERT THIS
INCREMENT OF TAX (ON A MAINE RESIDENT'S INCOME EARNED IN NEW HAMPSHIRE)
FROM MAINE TO NEW HAMPSHIRE, AND NEW HAMPSHIRE WILLINGLY HAS PICKED UP
THAT OPTION.  ALL THAT NEW HAMPSHIRE HAS DONE IS WHAT MAINE
SPECIFICALLY PERMITS AND, INDEED, INVITES IT TO DO.  IF MAINE SHOULD
BECOME DISENCHANTED WITH ITS BESTOWED BOUNTY, ITS LEGISLATURE MAY
CHANGE THE MAINE STATUTE.  THE CRUX IS THE STATUTE OF MAINE, NOT THE
STATUTE OF NEW HAMPSHIRE.  THE APPELLANTS, THEREFORE, ARE REALLY
COMPLAINING ABOUT THEIR OWN STATUTE.  IT IS IRONIC THAT THE STATE OF
MAINE, WHICH ALLOWS THE CREDIT, HAS MADE AN APPEARANCE IN THIS CASE AS
AN AMICUS URGING, IN EFFECT, THE DENIAL OF THE CREDIT BY AN
ADJUDICATION OF UNCONSTITUTIONALITY OF NEW HAMPSHIRE'S STATUTE.  IT
SEEMS TO ME THAT MAINE SHOULD BE HERE SEEKING TO UPHOLD ITS OWN
LEGISLATIVELY DEVISED PLAN OR TURN ITS ATTENTION TO ITS OWN
LEGISLATURE. 

ALL THIS IS REMINISCENT OF THE FEDERAL ESTATE TAX CREDIT FOR STATE
DEATH TAXES PAID, ORIGINALLY GRANTED SEC. 301 (B) OF THE REVENUE ACT OF
1924, 43 STAT. 304, AND SEC. 301 (B) OF THE REVENUE ACT OF 1926, 44
STAT. 70, AND NOW CONSTITUTING SEC. 2011 OF THE INTERNAL REVENUE CODE
OF 1954, 26 U.S.C. SEC. 2011.  STATES, INCLUDING NEW HAMPSHIRE AND
THOSE ADJACENT TO IT, THROUGH SPECIFIC LEGISLATION, HAVE TAKEN
ADVANTAGE OF THE CREDIT ALLOWED.  ME. REV. STAT. ANN., TIT. 36, SEC.
3741 - 3745 (1965 AND SUPP. 1973); MASS. GEN. LAWS, C. 65 A, SEC. 1 - 7
(1969 AND SUPP. 1975); N.H. REV. STAT. ANN. SEC. 87:1-13 (1971); VT.
STAT. ANN., TIT. 32, SEC. 7001 - 7005 (1970).  THE CREDIT PROVISION HAS
BEEN UPHELD AGAINST CONSTITUTIONAL ATTACK.  FLORIDA V. MELLON, 273 U.S.
12, 17 (1927); ROUSE V. UNITED STATES, 65 CT. CL. 749, CERT. DENIED,
278 U.S. 638 (1928). 

ONE WONDERS WHETHER THIS IS JSUT A LAWYERS' LAWSUIT.  CERTAINLY, THE
APPELLANTS, UPON PREVAILING TODAY, HAVE NO DIRECT OR APPARENT FINANCIAL
GAIN.  RELIEF FOR THEM FROM THE NEW HAMPSHIRE INCOME TAX RESULTS ONLY
IN A CORRESPONDING, PRO TANTO, INCREASE IN THEIR MAINE INCOME TAX. 
DOLLARWISE, THEY EMERGE AT EXACTLY THE SAME POINT.  THE SINGLE
DIFFERENCE IS THAT THEIR STATE, MAINE, ENJOYS THE TAX ON THE NEW
HAMPSHIRE-EARNED INCOME, RATHER THAN NEW HAMPSHIRE.  WHERE, THEN, IS
THE INJURY?  IF THERE IS AN ELEMENT OF INJURY, IT IS MAINE-IMPOSED. 

WE WASTE OUR TIME, THEREFORE, BY THEORIZING AND AGONIZING ABOUT THE
PRIVILEGES AND IMMUNITIES CLAUSE AND EQUAL PROTECTION IN THIS CASE. 
BUT IF THAT EXERCISE IN FUTILITY IS NEVERTHELESS INDICATED, I SEE
LITTLE MERIT IN THE APPELLANTS' QUEST FOR RELIEF.  IT IS SETTLED TAHT
ABSOLUTE EQUALITY IS NOT A REQUISITE UNDER THE PRIVILEGES AND
IMMUNITIES CLAUSE.  TOOMER V. WITSELL, 334 U.S. 385, 396 (1948); ID.,
AT 408 (FRANKFURTER, J., CONCURRING).  AND I FAIL TO PRECEIVE
UNCONSTITUTIONAL UNEQUAL PROTECTION ON NEW HAMPSHIRE'S PART.  IF
INEQUALITY EXISTS, IT IS DUE TO DIFFERENCES IN THE RESPECTIVE INCOME
TAX RATES OF THE STATES THAT BORDER UPON NEW HAMPSHIRE. 

I SAY AGAIN THAT THIS IS A NONCASE, MADE SEEMINGLY ATTRACTIVE BY
HIGH-SOUNDING SUGGESTION OF INEQUALITY AND UNFAIRNESS.  THE STATE OF
MAINE HAS THE CURE WITHIN ITS GRASP, AND IF THE CURE IS OF IMPORTANCE
TO IT AND TO ITS CITIZENS, SUCH AS APPELLANTS, IT AND THEY SHOULD BE
ABOUT ADJUSTING MAINE'S HOUSE RATHER THAN COMING HERE COMPLAINING OF A
COLLATERAL EFFECT OF ITS OWN STATUTE. 

CHARLES W. SMITH ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANTS. 

CHARLES G. CLEAVELAND, ASSISTANT ATTORNEY GENERAL OF NEW HAMPSHIRE,
ARGUED THE CAUSE FOR APPELLEES PRO HAC VICE.  WITH HIM ON THE BRIEF
WERE WARREN B. RUDMAN, ATTORNEY GENERAL, AND DONALD W. STERVER, JR.,
ASSISTANT ATTORNEY GENERAL. 

JON A. LUND, ATTORNEY GENERAL, AND JEROME S. MATUS AND DONALD J.
GASINK, ASSISTANT ATTORNEYS GENERAL, OF MAINE, KIMBERLY B. CHENEY,
ATTORNEY GENERAL, BENSON D. SCOTCH, DEPUTY ATTORNEY GENERAL, AND
CHARLES D. HASSEL, ASSISTANT ATTORNEY GENERAL, OF VERMONT, FILED A
BRIEF FO THE STATES OF MAINE AND VERMONT AS AMICI CURIAE URGING
REVERSAL.     WILLIAM F. HYLAND, ATTORNEY GENERAL, PRO SE, STEPHEN
SKILLMAN, ASSISTANT ATTORNEY GENERAL, AND HERBERT K. GLICKMAN, DEPUTY
ATTORNEY GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL OF NEW JERSEY
AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :
















UNITED STATES V. FEOLA, 420 U.S. 671 


       UNITED STATES V. FEOLA

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 73 - 1123.  ARGUED NOVEMBER 19, 1974--DECIDED MARCH 19,

           1975; 486 F.2D 1339, REVERSED. 


    RESPONDENT AND OTHERS WERE CONVICTED IN A JURY TRIAL OF

  VIOLATING 18 U.S.C. SEC. 111 FOR HAVING ASSAULTED FEDERAL

  OFFICERS (HERE UNDERCOVER NARCOTICS AGENTS) IN THE PERFORMANCE OF

  THEIR OFFICIAL DUTIES, AND OF CONSPIRING TO COMMIT THAT OFFENSE,

  IN VIOLATION OF THE GENERAL CONSPIRACY STATUTE, 18 U.S.C. SEC.

  371.  THE TRIAL COURT HAD INSTRUCTED THE JURORS THAT, IN ORDER TO

  FIND ANY OF THE DEFENDANTS GUILTY ON EITHER THE CONSPIRACY COUNT

  OR THE SUBSTANTIVE OCUNT, THEY WERE NOT REQUIRED TO CONCLUDE THAT

THE DEFENDANTS WERE AWARE THAT THEIR QUARRY WERE FEDERAL

 OFFICERS.  THE COURT OF APPEALS APPROVED THE INSTRUCTIONS ON THE

  SUBSTANTIVE CHARGES BUT, IN RELIANCE ON UNITED STATES V.

  CRIMMINS, 123 F. 2D 271, AND ITS PROGENY, REVERSED THE CONSPIRACY

  CONVICTIONS ON THE GROUND THAT THE TRIAL COURT HAD ERRED IN NOT

  CHARGING THAT KNOWLEDGE OF THE VICTIM'S OFFICIAL IDENTITY MUST BE

  PROVED IN ORDER TO CONVICT ON THE SEC. 371 CHARGE.  HELD: 

     1.  SECTION 111, WHICH WAS ENACTED BOTH TO PROTECT FEDERAL

  OFFICERS AND FEDERAL FUNCTIONS AND TO PROVIDE A FEDERAL FORUM IN

  WHICH TO TRY ALLEGED OFFENDERS, REQUIRES NO MORE THAN PROOF OF AN

  INTENT TO ASSAULT, NOT OF AN INTENT TO ASSAULT A FEDERAL
OFFICER;

  AND IT WAS NOT NECESSARY UNDER THE SUBSTANTIVE STATUTE TO PROVE

  THAT RESPONDENT AND HIS CONFEDERATES KNEW THAT THEIR VICTIMS WERE

  FEDERAL OFFICERS.  PP. 676 - 686. 

     2.  WHERE KNOWLEDGE OF THE FACTS GIVING RISE TO FEDERAL

  JURISDICTION IS NOT NECESSARY FOR CONVICTION OF A SUBSTANTIVE

  OFFENSE EMPODYING A MENS REA REQUIREMENT, SUCH KNOWLEDGE IS

  EQUALLY IRRELEVANT TO QUESTION OF RESPONSIBILITY FOR CONSPIRING

  TO COMMIT THE OFFENSE.  THUS, IN THIS CASE WHERE PROOF OF

  KNOWLEDGE THAT THE INTENDED VICTIMS WERE FEDERAL OFFICERS WAS NOT

  NECESSARY TO CONVICT UNDER SEC. 111, SUCH KNOWLEDGE DID NOT HAVE

  TO BE PROVED TO CONVICT UNDER SEC. 371.  PP. 686 - 696. 

     (A) THERE IS NOTHING ON THE FACE OF SEC. 371 THAT WOULD APPEAR

 TO REQUIRE A GREATER DEGREE OF KNOWLEDGE OF THE OFFICIAL STATUS

  OF THE VICTIM THAN IS REQUIRED IN THE CASE OF THE SUBSTANTIVE

  STATUTE, AND AT LEAST TWO DECISIONS REPUDIATE RESPONDENT'S

  CONTENTIONS TO THE CONTRARY, IN RE COY, 127 U.S. 731; UNITED

  STATES V. FREED, 401 U.S. 601.  PP. 687 - 688. 

     (B) THE PRINCIPLE OF THE CRIMMINS CASE, SUPRA, THAT TO PERMIT

  CONSPIRATORIAL LIABILITY WHERE THE OCNSPIRATORS WHERE IGNORANT OF

  THE FEDERAL IMPLICAITONS OF THEIR ACTS WOULD BE TO ENLARGE THEIR

  AGREEMENT BEYOND ITS TERMS AS THEY UNDERSTOOD THEM, HAS NO

  BEARING ON A CASE LIKE THE INSTANT ONE WHERE THE SUBSTANTIVE

  OFFENSE, ASSAULT, IS NOT OF THE TYPE OUTLAWED WITHOUT REGARD TO

  THE INTENT OF THE ACTOR TO ACCOMPLISH THE RESULT THAT IS MADE

  CRIMINAL.  NOR CAN IT BE SAID THAT THE ACTS CONTEMPLATED BY THE

  CONSPIRATORS ARE LEGALLY DIFFERENT FROM THOSE ACTUALLY PERFORMED

  SOLELY BECAUSE OF THE OFFICIAL IDENTITY OF THE VICTIM.  PP. 688 -

  693. 

     (C) IMPOSITION OF A STRICT "ANTI-FEDERAL" SCIENTER REQUIREMENT

  HAS NO RELATIONSHIP TO THE PURPOSES OF THE LAW OF CONSPIRACY,

  WHICH ARE TO PROTECT SOCIETY FROM THE DANGERS OF CONCERTED

CRIMINAL ACTIVITY AND TO IDENTIFY AN AGREEMENT TO ENGAGE IN CRIME

  AS SUFFICIENTLY THREATENING TO THE SOCIAL ORDER TO WARRANT ITS

  BEING THE SUBJECT OF CRIMINAL SANCTIONS REGARDLESS OF WHETHER THE

  CRIME AGREED UPON IS ACTUALLY COMMITTED.  PP. 693 - 694. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, WHITE, MARSHALL, POWELL, AND

  REHNQUIST, JJ., JOINED.  STEWART, J., FILED A DISSENTING OPINION,

  IN WHICH DOUGLAS, J., JOINED, POST, P. 696. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE ISSUE WHETHER KNOWLEDGE THAT THE INTENDED
VICTIM IS A FEDERAL OFFICER IS A REQUISITE FOR THE CRIME OF CONSPIRACY,
UNDER 18 U.S.C. SEC. 371, TO COMMIT AN OFFENSE VIOLATIVE OF 18 U.S.C.
SEC. 111, /1/ THAT IS, AN ASSAULT UPON A FEDERAL OFFICER WHILE ENGAGED
IN THE PERFORMANCE OF HIS OFFICIAL DUTIES. 

RESPONDENT FEOLA AND THREE OTHERS (ALSONDO, ROSA, AND FARR) WERE
INDICTED FRO VIOLATIONS OF SEC. 371 AND SEC. 111.  A JURY FOUND ALL
FOUR DEFENDANTS GUILTY OF BOTH CHARGES.  /2/ FEOLA RECEIVED A SENTENCE
OF FOUR YEARS FOR THE CONSPIRACY AND ONE OF THREE YEARS, PLUS A $3,000
FINE, FOR THE ASSAULT.  THE THREE-YEAR SENTENCE, HOWEVER, WAS SUSPENDED
AND HE WAS GIVEN THREE YEARS' PROBATION "TO COMMENCE AT THE EXPIRATION
OF CONFINEMENT" FOR THE CONSPIRACY.  THE RESPECTIVE APPEALS OF FEOLA,
ALSONDO, AND ROSA WERE CONSIDERED BY THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT IN A SINGLE OPINION.  AFTER AN INITIAL RULING
PARTIALLY TO THE CONTRARY, THAT COURT AFFIRMED THE JUDGMENT OF
CONVICTION ON THE SUBSTANTIVE CHARGES, BUT REVERSED THE CONSPIRACY
CONVICTIONS.  UNITED STATES V. ALSONDO, 486 F. 2D 1339, 1346 (1973). 
/3/ BECAUSE OF A CONFLICT AMONG THE FEDERAL CIRCUITS ON THE SCIENTER
ISSUE WITH RESPECT TO A CONSPIRACY CHARGE, /4/ WE GRANTED THE
GOVERNMENT'S PETITION FOR A WRIT OF CERTIORARI IN FEOLA'S CASE.  /5/
416 U.S. 935 (1974). 

    I 

THE FACTS REVEAL A CLASSIC NARCOTICS "RIP-OFF."  THE DETAILS ARE NOT
PARTICULARLY IMPORTANT FOR OUR PRESENT PURPOSES.  WE NEED NOTE ONLY
THAT THE EVIDENCE SHOWS THAT FEOLA AND HIS CONFEDERATES ARRANGED FOR A
SALE OF HEROIN TO BUYERS WHO TURNED OUT TO BE UNDERCOVER AGENTS FOR THE
BUREAU OF NARCOTICS AND DANGEROUS DRUGS.  THE GROUP PLANNED TO PALM OFF
ON THE PURCHASERS, FOR A SUBSTANTIAL SUM, A FORM OF SUGAR IN PLACE OF
HEROIN AND, SHOULD THAT RUSE FAIL, SIMPLY TO SURPRISE THEIR UNWITTING
BUYERS AND RELIEVE THEM OF THE CASH THEY HAD BROUGHT ALONG FOR
PAYMENT.  THE PLAN FAILED WHEN ONE AGENT, HIS SUSPICIONS BEING AROUSED,
/6/ DREW HIS REVOLVER IN TIME TO COUNTER AN ASSAULT UPON ANOTHER AGENT
FROM THE REAR.  INSTEAD OF ENJOYING THE RICH BENEFITS OF A SUCCESSFUL
SWINDLE, FEOLA AND HIS ASSOCIATES FOUND THEMSELVES CHARGED, TO THEIR
UNDOUBTED SURPRISE, WITH CONSPIRING TO ASSAULT, AND WITH ASSAULTING,
FEDERAL OFFICERS. 

AT THE TRIAL, THE DISTRICT COURT, WITHOUT OBJECTION FROM THE
DEFENSE, CHARGED THE JURORS THAT, IN ORDER TO FIND ANY OF THE
DEFENDANTS GUILTY ON EITHER THE CONSPIRACY COUNT OR THE SUBSTANTIVE
ONE, THEY WERE NOT REQUIRED TO CONCLUDE THAT THE DEFENDANTS WERE AWARE
THAT THEIR QUARRY WERE FEDERAL OFFICERS.  /7/ 

THE COURT OF APPEALS REVERSED THE CONSPIRACY CONVICTIONS ON A GROUND
NOT ADVANCED BY ANY OF THE DEFENDANTS.  ALTHOUGH IT APPROVED THE TRIAL
COURT'S INSTRUCTIONS TO THE JURY ON THE SUBSTANTIVE CHARGE OF
ASSAULTING A FEDERAL OFFICER, /8/ IT NONETHELESS CONCLUDED THAT THE
FAILURE TO CHARGE THAT KNOWLEDGE OF THE VICTIM'S OFFICIAL IDENTITY MUST
BE PROVED IN ORDER TO CONVICT ON THE CONSPIRACY CHARGE AMOUNTED TO
PLAIN ERROR.  486 F. 2D, AT 1344.  THE COURT PERCEIVED ITSELF BOUND BY
A LINE OF CASES, COMMENCING WITH JUDGE LEARNED HAND'S OPINION IN UNITED
STATES V. CRIMMINS, 123 F. 2D 271 (CA2 1971), ALL HOLDING THAT SCIENTER
OF A FACTUAL ELEMENT THAT CONFERS FEDERAL JURISDICTION, WHILE
UNNECESSARY FOR CONVICTION OF THE SUBSTANTIVE OFFENSE, IS REQUIRED IN
ORDER TO SUSTAIN A CONVICTION FOR CONSPIRACY TO COMMIT THE SUBSTANTIVE
OFFENSE.  ALTHOUGH THE COURT NOTED THAT THE CRIMMINS RATIONALE "HAS
BEEN CRITICIZED," 486 F. 2D, AT 1343, AND, INDEED, OFFERED NO ARGUMENT
IN SUPPORT OF IT, IT ACCEPTED "THE CONTROLLING PRECEDENTS SOMEWHAT
RELUCTANTLY."  ID., AT 1344. 

II 

THE GOVERNMENT'S PLEA IS FOR SYMMETRY.  IT URGES THAT SINCE CRIMINAL
LIABILITY FOR THE OFFENSE DESCRIBED IN 18 U.S.C. SEC. 111 DOES NOT
DEPEND ON WHETHER THE ASSAILANT HARBORED THE SPECIFIC INTENT TO ASSAULT
A FEDERAL OFFICER, NO GREATER SCIENTER REQUIREMENT CAN BE ENGRAFTED
UPON THE CONSPIRACY OFFENSE, WHICH IS MERELY AN AGREEMENT TO COMMIT THE
ACT PROSCRIBED BY SEC. 111.  CONSIDERATION OF THE GOVERNMENT'S
CONTENTION REQUIRES US PRELIMINARILY TO PASS UPON ITS PREMISE, THE
PROPOSITION THAT RESPONSIBILITY FOR ASSAULT UPON A FEDERAL OFFICER DOES
NOT DEPEND UPON WHETHER THE ASSAILANT WAS AWARE OF THE OFFICIAL
IDENTITY OF HIS VICTIM AT THE TIME HE ACTED. 

THAT THE "FEDERAL OFFICER" REQUIREMENT IS ANYTHING OTHER THAN
JURISDICITONAL /9/ IS NOT SERIOUSLY URGED UPON US; INDEED, BOTH FEOLA
/10/ AND THE COURT OF APPEALS, 486 F. 2D, AT 1342, CONCEDE THAT
SCIENTER IS NOT A NECESSARY ELEMENT OF THE SUBSTANTIVE OFFENSE UNDER
SEC. 111.  ALTHOUGH SOME EARLY CASES WERE TO THE CONTRARY, /11/ THE
CONCESSION RECOGNIZES WHAT IS NOW THE PRACTICAL UNANIMITY OF THE COURTS
OF APPEALS.  /12/ NEVERTHELESS, WE ARE NOT ALWAYS GUIDED BY CONCESSIONS
OF THE PARTIES, AND THE VERY CONSIDERATIONS OF SYMMETRY URGED BY THE
GOVERNMENT SUGGEST THAT WE FIRST TURN OUR ATTENTION TO THE SUBSTANTIVE
OFFENSE. 

THE COURT HAS CONSIDERED SEC. 111 BEFORE.  IN LADNER V. UNITED
STATES, 358 U.S. 169 (1958), THE ISSUE WAS WHETHER A SINGLE SHOTGUN
BLAST WHICH WOUNDED TWO FEDERAL AGENTS EFFECTED MULTIPLE ASSAULTS,
WITHIN THE MEANING OF 18 U.S.C. SEC. 254 (1940 ED.), ONE OF THE
STATUTORY PREDECESSORS TO THE PRESENT SEC. 111.  /13/ THE GOVERNMENT
URGED THAT SEC. 254 HAD BEEN INTENDED NOT ONLY TO DETER INTERFERENCE
WITH FEDERAL LAW ENFORCEMENT ACTIVITIES BUT, AS WELL, TO FORESTALL
INJURY TO INDIVIDUAL OFFICERS, AS "WARDS" OF THE UNITED STATES.  GIVEN
THE LATTER FORMULATION OF LEGISLATIVE INTENT, ARGUED THE GOVERNMENT, A
SINGLE BLAST WOUNDING TWO OFFICERS WOULD CONSTITUTE TWO OFFENSES.  THE
COURT DISAGREED BECAUSE IT FOUND AN EQUALLY PLAUSIBLE READING OF THE
LEGISLATIVE INTENT TO BE THAT "THE CONGRESSIONAL AIM WAS TO PREVENT
HINDRANCE TO THE EXECUTION OF OFFICIAL DUTY . . . AND WAS NOT TO
PROTECT FEDERAL OFFICERS EXCEPT AS INCIDENT TO THAT AIM," 358 U.S., AT
175 - 176.  UNDER THAT VIEW OF LEGISLATIVE PURPOSE, TO HAVE PUNISHMENT
DEPEND UPON THE NUMBER OF OFFICERS IMPEDED WOULD BE INCONGRUOUS.  WITH
NO CLEAR CHOICE BETWEEN THESE ALTERNATIVE FORMULATIONS OF CONGRESSIONAL
INTENT, INLIGHT OF THE STATUTORY LANGUAGE AND SPARSE LEGISLATIVE
HISTORY, THE COURT APPLIED A POLICY OF LENITY AND, FOR PURPOSES OF THE
CASE, ADOPTED THE LESS HARSH READING.  ID., AT 177 - 178.  IT THEREFORE
HELD THAT THE SINGLE DISCHARGE OF A SHOTGUN CONSTITUTED ONLY A SINGLE
VIOLATION OF SEC. 254. 

IN THE PRESENT CASE, WE SEE AGAIN THE POSSIBLE CONSEQUENCES OF AN
INTERPRETATION OF SEC. 111 THAT FOCUSES ON ONLY ONE OF THE STATUTE'S
APPARENT AIMS.  IF THE PRIMARY PURPOSE IS TO PROTECT FEDERAL LAW
ENFORCEMENT PERSONNEL, THAT PURPOSE COULD WELL BE FRUSTRATED BY THE
IMPOSITION OF A STRICT SCIENTER REQUIREMENT.  ON THE OTHER HAND, IF
SEC. 111 IS SEEN PRIMARILY AS AN ANTI-OBSTRUCTION STATUTE, IT IS LIKELY
THAT CONGRESS INTENDED CRIMINAL LIABILITY TO BE IMPOSED ONLY WHEN A
PERSON ACTED WITH THE SPECIFIC INTENT TO IMPEDE ENFORCEMENT
ACTIVITIES.  OTHERWISE, IT HAS BEEN SAID:  " WERE KNOWLEDGE NOT
REQUIRED IN OBSTRUCTION OF JUSTICE OFFENSES DESCRIBED BY THESE TERMS,
WHOLLY INNOCENT (OR EVEN SOCIALLY DESIRABLE) BEHAVIOR COULD BE
TRANSFORMED INTO A FELONY BY THE WHOLLY FORTUITOUS CIRCUMSTANCE OF THE
CONCEALED IDENTITY OF THE PERSON RESISTED."  /14/  ALTHOUGH WE ADHERE
TO THE CONCLUSION IN LADNER THAT EITHER VIEW OF LEGISLATIVE INTENT IS
"PLAUSIBLE," WE THINK IT PLAIN THAT CONGRESS INTENDED TO PROTECT BOTH
FEDERAL OFFICERS AND FEDERAL FUNCTIONS, AND THAT, INDEED, FURTHERANCE
OF THE ONE POLICY ADVANCES THE OTHER.  THE REJECTION OF A STRICT
SCIENTER REQUIREMENT IS CONSISTENT WITH BOTH PURPOSES. 

299, 48 STAT. 781.  SECTION 1 OF THAT ACT, IN WHICH THE PRESENT 18
U.S.C. SEC. 1114 HAS ITS ROOTS, MADE IT A FEDERAL CRIME TO KILL CERTAIN
FEDERAL LAW ENFORCEMENT PERSONNEL WHILE ENGAGED IN, OR ON ACCOUNT OF,
THE PERFORMANCE OF OFFICIAL DUTIES, /15/ AND SEC. 2 FORBADE FORCIBLE
RESISTANCE OR INTERFERENCE WITH, OR ASSAULT UPON, ANY OFFICER
DESIGNATED IN SEC. 1 WHILE SO ENGAGED.  THE HISTORY OF THE 1934 ACT,
THOUGH SCANTY, OFFERS INSIGHT INTO ITS MULTIPLE PURPOSES.  THE
PERTINENT COMMITTEE REPORTS CONSIST, ALMOST IN THEIR ENTIRETY, OF A
LETTER DATED JANUARY 3, 1934, FROM ATTORNEY GENERAL CUMMINGS URGING THE
PASSAGE OF THE LEGISLATION.  /16/ IN THAT LETTER THE ATTORNEY GENERAL
STATES THAT THIS WAS NEEDED "FOR THE PROTECTION OF FEDERAL OFFICERS AND
EMPLOYEES."  COMPELLED RELIANCE UPON STATE COURTS, "HOWEVER RESPECTABLE
AND WELL DISPOSED, FOR THE PROTECTION OF (FEDERAL) INVESTIGATIVE AND
LAW-ENFORCEMENT PERSONNEL" WAS INADEQUATE, AND THERE WAS NEED FOR
RESORT TO A FEDERAL FORUM. 

ALTHOUGH THE LETTER REFERS ONLY TO THE NEED TO PROTECT FEDERAL
PERSONNEL, CONGRESS CLEARLY WAS CONCERNED WITH THE SAFETY OF FEDERAL
OFFICERS INSOFAR AS IT WAS TIED TO THE EFFICACY OF LAW ENFORCEMENT
ACTIVITIES.  THIS CONCERN IS IMPLICIT IN THE DECISION TO LIST THOSE
OFFICERS PROTECTED RATHER THAN MERELY TO FORBID ASSAULT ON ANY FEDERAL
EMPLOYEE.  INDEED, THE STATUTE AS ORIGINALLY FORMULATED WOULD HAVE
PROHIBITED ATTACK ON "ANY CIVIL OFFICIAL, INSPECTOR, AGENT, OR OTHER
OFFICER OR EMPLOYEE OF THE UNITED STATES."  SEE H.R. REP. NO. 1455, 73D
CONG., 2D SESS., 1 (1934).  THE HOUSE REJECTED THIS AND INSISTED ON THE
VERSION THAT WAS ULTIMATELY ENACTED.  ALTHOUGH THE REASON FOR THE
INSISTENCE IS UNEXPLAINED, IT IS FAIR TO ASSUME THAT THE HOUSE WAS OF
THE VIEW THAT THE BILL AS ORIGINALLY DRAFTED STRAYED TOO FAR FROM THE
PURPOSE OF INSURING THE INTEGRITY OF LAW ENFORCEMENT PURSUITS.  /17/ 

IN RESOLVING THE QUESTION WHETHER CONGRESS INTENDED TO CONDITION
RESPONSIBILITY FOR VIOLATION OF SEC. 111 ON THE ACTOR'S AWARENESS OF
THE IDENTITY OF HIS VICTIM, WE GIVE WEIGHT TO BOTH PURPOSES OF THE
STATUTE, BUT HERE AGAIN, AS IN LADNER, WE NEED NOT MAKE A CHOICE
BETWEEN THEM.  RATHER, REGARDLESS OF WHICH PURPOSE WE WOULD EMPHASIZE,
WE MUST TAKE NOTE OF THE MEANS CONGRESS CHOSE FOR ITS ACHIEVEMENT. 

ATTORNEY GENERAL CUMMINGS, IN HIS LETTER, EMPHASIZED THE IMPORTANCE
OF PROVIDING A FEDERAL FORUM IN WHICH ATTACKS UPON NAMED FEDERAL
OFFICERS COULD BE PROSECUTED.  THIS, STANDING ALONE, WOULD NOT INDICATE
A CONGRESSIONAL CONCLUSION TO DISPENSE WITH A REQUIREMENT OF SPECIFIC
INTENT TO ASSAULT A FEDERAL OFFICER, FOR THE LOCUS OF THE FORUM DOES
NOT OF ITSELF DEFINE THE REACH OF THE SUBSTANTIVE OFFENSE.  BUT THE
VIEW THAT SEC. 111 REQUIRES KNOWLEDGE OF THE VICTIM'S OFFICE RESTS ON
THE PROPOSITION THAT THE REFERENCE TO THE FEDERAL FORUM WAS MERELY A
SHORTHAND EXPRESSION OF THE NEED FOR A STATUTE TO FILL A GAP IN THE
SUBSTANTIVE LAW OF THE STATES.  SEE UNITED STATES V. FERNANDEZ, 497 F.
2D 730, 745 (CA9 1974) (CONCURRING OPINION).  IN THAT VIEW, SEC. 111 IS
SEEN MERELY AS A FEDERAL AGGRAVATED ASSAULT STATUTE, NECESSARY SOLELY
BECAUSE SOME STATE LAWS MANDATE INCREASED PUNISHMENT ONLY FOR ASSAULTS
ON STATE PEACE OFFICERS; ASSAULTS ON FEDERAL PERSONNEL WOULD BE
PUNISHABLE, UNDER STATE LAW, ONLY FOR SIMPLE ASSAULT.  AS A FEDERAL
AGGRAVATED ASSAULT STATUTE, SEC. 111 WOULD BE READ AS REQUIRING THE
SAME DEGREE OF KNOWLEDGE AS ITS STATE LAW COUNTERPARTS.  SEE MORISSETTE
V. UNITED STATES, 342 U.S. 246, 263 (1952).  THE ARGUMENT FAILS,
HOWEVER, BECAUSE IT IS FAIRLY CERTAIN THAT CONGRESS WAS NOT ENACTING
SEC. 111 AS A FEDERAL COUNTERPART TO STATE PROSCRIPTIONS OF AGGRAVATED
ASSAULT. 

THE ATTORNEY GENERAL'S CALL FOR A FEDERAL FORUM IN WHICH TO
PROSECUTE AN ATTACKER OF A FEDERAL OFFICER WAS DIRECTED AT BOTH
SECITONS OF THE PROPOSED BILL THAT BECAME THE 1934 ACT.  THE LETTER
CONCERNED NOT ONLY THE SECTION PROHIBITING ASSAULTS BUT ALSO THE
FILL A GAP IN EXISTING SUBSTANTIVE STATE LAW.  THE STATES PROSCRIBED
MURDER, AND, UNTIL RECENTLY, WITH THE ENACTMENT OF CERTAIN STATUTES IN
RESPONSE TO THE SUCCESSFUL ATTACK ON CAPITAL PUNISHMENT, MURDER OF A
PEACE OFFICER HAS NOT BEEN DEEMED AN AGGRAVATED FORM OF MURDER, FOR ALL
STATES USUALLY HAVE PUNISHED MURDERERS WITH THE MOST SEVERE SANCTION
THE LAW ALLOWS.  CLEARLY, THEN, CONGRESS UNDERSTOOD THAT IT WAS NOT
ONLY FILLING ONE GAP IN STATE SUBSTANTIVE LAW BUT IN LARGE PART WAS
DUPLICATING STATE PROSCRIPTIONS IN ORDER TO INSURE A FEDERAL FORUM FOR
THE TRIAL OF OFFENSES INVOLVING FEDERAL OFFICERS.  FULFILLMENT OF THE
CONGRESSIONAL GOAL TO PROTECT FEDERAL OFFICERS REQUIRED THEN, AS IT
DOES NOW, THE HIGHEST POSSIBLE DEGREE OF CERTAINTY THAT THOSE WHO
KILLED OR ASSAULTED FEDERAL OFFICERS WERE BROUGHT TO JUSTICE.  IN THE
CONGRESSIONAL MIND, WITH THE RELIANCE UPON THE ATTORNEY GENERAL'S
LETTER, CERTAINTY REQUIRED THAT THESE CASES BE TRIED IN THE FEDERAL
COURTS, FOR NO MATTER HOW "RESPECTABLE AND WELL DISPOSED," IT WOULD NOT
BE UNREASONABLE TO SUPPOSE THAT STATE OFFICIALS WOULD NOT ALWAYS OR
NECESSARILY SHARE CONGRESSIONAL FEELINGS OF URGENCY AS TO THE NECESSITY
OF PROMPT AND VIGOROUS PROSECUTIONS OF THOSE WHO VIOLATE THE SAFETY OF
THE FEDERAL OFFICER.  FROM THE DAYS OF PROHIBITION TO THE DAYS OF THE
MODERN CIVIL RIGHTS MOVEMENT, THE STATUTES FEDERAL AGENTS HAVE SWORN TO
UPHOLD AND ENFORCE HAVE NOT ALWAYS BEEN POPULAR IN EVERY CORNER OF THE
NATION.  CONGRESS MAY WELL HAVE CONCLUDED THAT SEC. 111 WAS NECESSARY
IN ORDER TO INSURE UNIFORMLY VIGOROUS PROTECTION OF FEDERAL PERSONNEL,
INCLUDING THOSE ENGAGED IN LOCALLY UNPOPULAR ACTIVITY.     WE CONCLUDE,
FROM ALL THIS, THAT IN ORDER TO EFFECTUATE THE CONGRESSIONAL PURPOSE OF
ACCORDING MAXIMUM PROTECTION TO FEDERAL OFFICERS BY MAKING PROSECUTION
FOR ASSAULTS UPON THEM COGNIZABLE IN THE FEDERAL COURTS, SEC. 111
CANNOT BE CONSTRUED AS EMBODYING AN UNEXPRESSED REQUIREMENT THAT AN
ASSAILANT BE AWARE THAT HIS VICTIM IS A FEDERAL OFFICER.  ALL THE
STATUTE REQUIRES IS AN INTENT TO ASSAULT, NOT AN INTENT TO ASSAULT A
FEDERAL OFFICER.  A CONTRARY CONCLUSION WOULD GIVE INSUFFICIENT
PROTECTION TO THE AGENT ENFORCING AN UNPOPULAR LAW, AND NONE TO THE
AGENT ACTING UNDER COVER.  /18/ 

THIS INTERPRETATION POSES NO RISK OF UNFAIRNESS TO DEFENDANTS.  IT
IS NO SNARE FOR THE UNSUSPECTING.  ALTHOUGH THE PERPETRATOR OF A
NARCOTICS "RIP-OFF," SUCH AS THE ONE INVOLVED HERE, MAY BE SURPRISED TO
FIND THAT HIS INTENDED VICTIM IS A FEDERAL OFFICER IN CIVILIAN APPAREL,
HE NONETHELESS KNOWS FROM THE VERY OUTSET THAT HIS PLANNED COURSE OF
CONDUCT IS WRONGFUL.  THE SITUATION IS NOT ONE WHERE LEGITIMATE CONDUCT
BECOMES UNLAWFUL SOLELY BECAUSE OF THE IDENTITY OF THE INDIVIDUAL OR
AGENCY AFFECTED.  IN A CASE OF THIS KIND THE OFFENDER TAKES HIS VICTIM
AS HE FINDS HIM.  THE CONCEPT OF CRIMINAL INTENT DOES NOT EXTEND SO FAR
AS TO REQUIRE THAT THE ACTOR UNDERSTAND NOT ONLY THE NATURE OF HIS ACT
BUT ALSO ITS CONSEQUENCE FOR THE CHOICE OF A JUDICIAL FORUM. 

WE ARE NOT TO BE UNDERSTOOD AS IMPLYING THAT THE DEFENDANT'S STATE
OF KNOWLEDGE IS NEVER A RELEVANT CONSIDERATION UNDER SEC. 111.  THE
STATUTE DOES REQUIRE A CRIMINAL INTENT, AND THERE MAY WELL BE
CIRCUMSTANCES IN WHICH IGNORANCE OF THE OFFICIAL STATUS OF THE PERSON
ASSAULTED OR RESISTED NEGATES THE VERY EXISTENCE OF MENS REA.  FOR
EXAMPLE, WHERE AN OFFICER FAILS TO IDENTIFY HIMSELF OR HIS PURPOSE, HIS
CONDUCT IN CERTAIN CIRCUMSTANCES MIGHT REASONABLY BE INTERPRETED AS THE
UNLAWFUL USE OF FORCE DIRECTED EITHER AT THE DEFENDANT OR HIS
PROPERTY.  IN A SITUATION OF THAT KIND, ONE MIGHT BE JUSTIFIED IN
EXERTING AN ELEMENT OF RESISTANCE, AND AN HONEST MISTAKE OF FACT WOULD
NOT BE CONSISTENT WITH CRIMINAL INTENT.  /19/ 

WE HOLD, THEREFORE, THAT IN ORDER TO INCUR CRIMINAL LIABILITY UNDER
SEC. 111 AN ACTOR MUST ENTERTAIN MERELY THE CRIMINAL INTENT TO DO THE
ACTS THEREIN SPECIFIED.  WE NOW CONSIDER WHETHER THE RULE SHOULD BE
DIFFERENT WHERE PERSONS CONSPIRE TO COMMIT THOSE ACTS. 

        III 

OUR DECISIONS ESTABLISH THAT IN ORDER TO SUSTAIN A JUDGMENT OF
CONVICTION ON A CHARGE OF CONSPIRACY TO VIOLATE A FEDERAL STATUTE, THE
GOVERNMENT MUST PROVE AT LEAST THE DEGREE OF CRIMINAL INTENT NECESSARY
FOR THE SUBSTANTIVE OFFENSE ITSELF.  INGRAM V. UNITED STATES, 360 U.S.
672, 678 (1959).  SEE PETTIBONE V. UNITED STATES, 148 U.S. 197 (1893). 
RESPONDENT FEOLA URGES UPON US THE PROPOSITION THAT THE GOVERNMENT MUST
SHOW A DEGREE OF CRIMINAL INTENT IN THE CONSPIRACY COUNT GREATER THAN
IS NECESSARY TO CONVICT FOR THE SUBSTANTIVE OFFENSE; HE URGES THAT EVEN
THOUGH IT IS NOT NECESSARY TO HSOW THAT HE WAS AWARE OF THE OFFICIAL
IDENTITY OF HIS ASSAULTED VICTIMS IN ORDER TO FIND HIM GUILTY OF
ASSAULTING FEDERAL OFFICERS, IN VIOLATION OF 18 U.S.C. SEC. 111, THE
GOVERNMENT NONETHELESS MUST SHOW THAT HE WAS AWARE THAT HIS INTENDED
VICTIMS WERE UNDERCOVER AGENTS, IF IT IS SUCCESSFULLY TO PROSECUTE HIM
FOR CONSPIRING TO ASSAULT FEDERAL AGENTS.  AND THE COURT OF APPEALS
HELD THAT THE TRIAL COURT'S FAILURE TO CHARGE THE JURY TO THIS EFFECT
CONSTITUTED PLAIN ERROR. 

THE GENERAL CONSPIRACY STATUTE, 18 U.S.C. SEC. 371, /20/ OFFERS NO
TEXTUAL SUPPORT FOR THE PROPOSITION THAT TO BE GUILTY OF CONSPIRACY A
DEFENDANT IN EFFECT MUST HAVE KNOWN THAT HIS CONDUCT VIOLATED FEDERAL
LAW.  THE STATUTE MAKES IT UNLAWFUL SIMPLY TO "CONSPIRE . . . TO COMMIT
ANY OFFENSE AGAINST THE UNITED STATES."  A NATURAL READING OF THESE
WORDS WOULD BE THAT SINCE ONE CAN VIOLATE A CRIMINAL STATUTE SIMPLY BY
ENGAGING IN THE FORBIDDEN CONDUCT, A CONSPIRACY TO COMMIT THAT OFFENSE
IS NOTHING MORE THAN AN AGREEMENT TO ENGAGE IN THE PROHIBITED CONDUCT. 
THEN WHERE, AS HERE, THE SUBSTANTIVE STATUTE DOES NOT REQUIRE THAT AN
ASSAILANT KNOW THE OFFICIAL STATUS OF HIS VICTIM, THERE IS NOTHING ON
THE FACE OF THE OCNSPIRACY STATUTE THAT WOULD SEEM TO REQUIRE THAT
THOSE AGREEING TO THE ASSAULT HAVE A GREATER DEGREE OF KNOWLEDGE. 

WE HAVE BEEN UNABLE TO FIND ANY DECISION OF THIS COURT THAT LENDS
SUPPORT TO THE RESPONDENT.  ON THE CONTRARY, AT LEAST TWO OF OUR CASES
IMPLICITLY REPUDIATE HIS POSITION.  THE APPELLANTS IN IN RE COY, 127
U.S. 731 (1888), WERE CONVICTED OF CONSPIRING TO INDUCE STATE ELECTION
OFFICIALS TO NEGLECT THEIR DUTY TO SAFEGUARD BALLOTS AND ELECTION THE
OFFENSE OCCURRED WITH RESPECT TO AN ELECTION AT WHICH INDIANA VOTERS,
IN ACCORDANCE WITH STATE LAW, VOTED FOR BOTH LOCAL OFFICIALS AND
MEMBERS OF CONGRESS.  MUCH LIKE FEOLA HERE, THOSE APPELLANTS ASSERTED
THAT THEY COULD NOT BE PUNISHED FOR CONSPIRING TO VIOLATE FEDERAL LAW
BECAUSE THEY HAD INTENDED ONLY TO AFFECT THE OUTCOME OF STATE RACES. 
IN SHORT, IT WAS URGED THAT THE CONSPIRACY STATUTE EMBODIED A
REQUIREMENT OF SPECIFIC INTENT TO VIOLATE FEDERAL LAW.  ID., AT 753. 
THE COURT REJECTED THIS CONTENTION AND HELD THAT THE STATUTE REQUIRED
ONLY THAT THE CONSPIRATORS AGREE TO PARTICIPATE IN THE PROHIBITED
CONDUCT.  SEE ANDERSON V. UNITED STATES, 417 U.S. 211, 226 (1974). 

SIMILARLY, IN UNITED STATES V. FREED, 401 U.S. 601 (1971), WE
REVERSED THE DISMISSAL OF AN INDICTMENT CHARGING DEFENDANTS WITH
POSSESSION OF, AND WITH CONSPIRACY TO POSSESS, HAND GRENADES THAT HAD
NOT BEEN REGISTERED, AS REQUIRED BY 26 U.S.C. SEC. 5861 (D).  THE TRIAL
COURT DISMISSED THE INDICTMENT FOR FAILURE TO ALLEGE THAT THE
DEFENDANTS KNEW THAT THE HAND GRENADES IN FACT WERE UNREGISTERED.  WE
HELD THAT ACTUAL KNOWLEDGE THAT THE GRENADES WERE UNREGISTERED WAS NOT
AN ELEMENT OF THE SUBSTANTIVE OFFENSE CREATED BY CONGRESS AND THEREFORE
UPHELD THE INDICTMENT BOTH AS TO THE SUBSTANTIVE OFFENSE AND AS TO THE
CHARGE OF CONSPIRACY.  AGAIN, WE DECLINED TO REQUIRE A GREATER DEGREE
OF INTENT FOR CONSPIRATORIAL RESPONSIBILITY THAN FOR RESPONSIBILITY FOR
THE UNDERLYING SUBSTANTIVE OFFENSE. 

WITH NO SUPPORT ON THE FACE OF THE GENERAL CONSPIRACY STATUTE OR IN
THIS COURT'S DECISIONS, RESPONDENT RELIES SOLELY ON THE LINE OF CASES
COMMENCING WITH UNITED STATES V. CRIMMINS, 123 F. 2D 271 (CA2 1941),
FOR THE PRINCIPLE THAT THE GOVERNMENT MUST PROVE "ANTI-FEDERAL" INTENT
IN ORDER TO ESTABLISH LIABILITY UNDER SEC. 371.  IN CRIMMINS, THE
DEFENDANT HAD BEEN FOUND GUILTY OF CONSPIRING TO RECEIVE STOLEN BONDS
THAT HAD BEEN TRANSPORTED IN INTERSTATE COMMERCE.  UPON REVIEW, THE
COURT OF APPEALS POINTED OUT THAT THE EVIDENCE FAILED TO ESTABLISH THAT
CRIMMINS ACTUALLY KNEW THE STOLEN BONDS HAD MOVED INTO THE STATE. 
ACCEPTING FOR THE SAKE OF ARGUMENT THE ASSUMPTION THAT SUCH KNOWLEDGE
WAS NOT NECESSARY TO SUSTAIN A CONVICTION ON THE SUBSTANTIVE OFFENSE,
JUDGE LEARNED HAND NEVERTHELESS CONCLUDED THAT TO PERMIT CONSPIRATORIAL
LIABILITY WHERE THE CONSPIRATORS WERE IGNORANT OF THE FEDERAL
IMPLICATIONS OF THEIR ACTS WOULD BE TO ENLARGE THEIR AGREEMENT BEYOND
ITS TERMS AS THEY UNDERSTOOD THEM.  HE CAPSULIZED THE DISTINCTION IN
WHAT HAS BECOME WELL KNOWN AS HIS "TRAFFIC LIGHT"  ANALOGY: 

" WHILE ONE MAY, FOR INSTANCE, BE GUILTY OF RUNNING PAST A TRAFFIC
LIGHT OF WHOSE EXISTENCE ONE IS IGNORANT, ONE CANNOT BE GUILTY OF
CONSPIRING TO RUN PAST SUCH A LIGHT, FOR ONE CANNOT AGREE TO RUN PAST A
LIGHT UNLESS ONE SUPPOSES THAT THERE IS A LIGHT TO RUN PAST."  ID., AT
273  

JUDGE HAND'S ATTRACTIVE, BUT PERHAPS SEDUCTIVE, ANALOGY HAS RECEIVED
A MIXED RECEPTION IN THE COURTS OF APPEALS.  THE SECOND CIRCUIT, OF
COURSE, HAS FOLLOWED IT; /21/ OTHERS HAVE REJECTED IT.  /22/ IT APPEARS
THAT MOST HAVE AVOIDED IT BY THE SIMPLE EXPEDIENT OF INFERRING THE
REQUISITE KNOWLEDGE FROM THE SCOPE OF THE CONSPIRATORIAL VENTURE.  /23/
WE CONCLUDE THAT THE ANALOGY, THOUGH EFFECTIVE PROSE, IS, AS APPLIED
TO THE FACTS BEFORE US, BAD LAW.  /24/ 

THE QUESTION POSED BY THE TRAFFIC LIGHT ANALOGY IS NOT BEFORE US,
JUST AS IT WAS NOT BEFORE THE SECOND CIRCUIT IN CRIMMINS.  CRIMINAL
LIABILITY, OF COURSE, MAY BE IMPOSED ON ONE WHO RUNS A TRAFFIC LIGHT
REGARDLESS OF WHETHER HE HARBORED THE "EVIL INTENT" OF DISOBEYING THE
LIGHT'S COMMAND; WHETHER HE DROVE SO RECKLESSLY AS TO BE UNABLE TO
PERCEIVE THE LIGHT; WHETHER, THINKING HE WAS OBSERVING ALL TRAFFIC
RULES, HE SIMPLY FAILED TO NOTICE THE LIGHT; OR WHETHER, HAVING BEEN
REARED ELSEWHERE, HE THOUGHT THAT THE LIGHT WAS ONLY AN ORNAMENT. 
TRAFFIC VIOLATIONS GENERALLY FALL INTO THAT CATEGORY OF OFFENSES THAT
DISPENSE WITH A MENS REA REQUIREMENT.  SEE UNITED STATES V.
DOTTERWEICH, 320 U.S. 277 (1943).  THESE LAWS EMBODY THE SOCIAL
JUDGMENT THAT IT IS FAIR TO PUNISH ONE WHO INTENTIONALLY ENGAGES IN
CONDUCT THAT CREATES A RISK TO OTHERS, EVEN THOUGH NO RISK IS INTENDED
OR THE ACTOR, THROUGH NO FAULT OF HIS OWN, IS COMPLETELY UNAWARE OF THE
EXISTENCE OF ANY RISK.  THE TRAFFIC LIGHT ANALOGY POSES THE QUESTION
WHETHER IT IS FAIR TO PUNISH PARTIES TO AN AGREEMENT TO ENGAGE
INTENTIONALLY IN APPARENTLY INNOCENT CONDUCT WHERE THE UNINTENDED
RESULT OF ENGAGING IN THAT CONDUCT IS THE VIOLATION OF A CRIMINAL
STATUTE. 

BUT THIS CASE DOES NOT CALL UPON US TO ANSWER THIS QUESTION, AND WE
DECLINE TO DO SO, JUST AS WE HAVE ONCE BEFORE.  UNITED STATES V. FREED,
401 U.S., AT 609 N. 14.  WE NOTE IN PASSING, HOWEVER, THAT THE ANALOGY
COMES CLOSE TO STATING WHAT HAS BEEN KNOWN AS THE " POWELL DOCTRINE,"
ORIGINATING IN PEOPLE V. POWELL, 63 N.Y. 88 (1975), TO THE EFFECT THAT
A CONSPIRACY, TO BE CRIMINAL, MUST BE ANIMATED BY A CORRUPT MOTIVE OR A
MOTIVE TO DO WRONG.  UNDER THIS PRINCIPLE, SUCH A MOTIVE COULD BE
EASILY DEMONSTRATED IF THE UNDERLYING OFFENSE INVOLVED AN ACT CLEARLY
WRONGFUL IN ITSELF; BUT IT HAD TO BE INDEPENDENTLY DEMONSTRATED IF THE
ACTS AGREED TO WERE WRONGFUL SOLELY BECAUSE OF STATUTORY PROSCRIPTION. 
SEE NOTE, DEVELOPMENTS IN THE LAW--CRIMINAL CONSPIRACY, 72 HARV. L.
REV. 920, 936 - 937 (1959).  INTERESTINGLY, JUDGE HAND HIMSELF WAS ONE
OF THE MORE SEVERE CRITICS OF THE POWELL DOCTRINE.  /25/ 

THAT JUDGE HAND SHOULD REJECT THE POWELL DOCTRINE AND THEN CREATE
THE CRIMMINS DOCTRINE SEEMS CURIOUS ENOUGH.  FATAL TO THE LATTER,
HOWEVER, IS THE FACT THAT IT WAS ANNOUNCED IN A CASE TO WHICH IT COULD
NOT HAVE BEEN MEANT TO APPLY.  IN CRIMMINS, THE SUBSTANTIVE OFFENSE,
NAMELY, THE RECEIPT OF STOLEN SECURITIES THAT HAD BEEN IN INTERSTATE
COMMERCE, PROSCRIBED CLEARLY WRONGFUL CONDUCT.  SUCH CONDUCT COULD NOT
BE ENGAGED IN WITHOUT AN INTENT TO ACCOMPLISH THE FORBIDDEN RESULT. 
SO, TOO, IT IS WITH ASSAULT, THE CONDUCT FORBIDDEN BY THE SUBSTANTIVE
STATUTE, SEC. 111, PRESENTLY BEFORE US.  ONE MAY RUN A TRAFFIC LIGHT
"OF WHOSE EXISTENCE ONE IS IGNORANT," BUT ASSAULTING ANOTHER "3F WHOSE
EXISTENCE ONE IS IGNORANT," PROBABLY WOULD REQUIRE UNEARTHLY
INTERVENTION.  THUS, THE TRAFFIC LIGHT ANALOGY, EVEN IF IT WERE A
CORRECT STATEMENT OF THE LAW, IS INAPT, FOR THE CONDUCT PROSCRIBED BY
THE SUBSTANTIVE OFFENSE, HERE ASSAULT, IS NOT OF THE TYPE OUTLAWED
WITHOUT REGARD TO THE INTENT OF THE ACTOR TO ACCOMPLISH THE RESULT THAT
IS MADE CRIMINAL.  IF THE ANALOGY HAS ANY VITALITY AT ALL, IT IT TO
CONDUCT OF THE LATTER VARIETY; THAT, HOWEVER, IS A QUESTION WE SAVE FOR
ANOTHER DAY.  WE HOLD HERE ONLY THAT WHERE A SUBSTANTIVE OFFENSE
EMBODIES ONLY A REQUIREMENT OF MENS REA AS TO EACH OF ITS ELEMENTS, THE
GENERAL FEDERAL CONSPIRACY STATUTE REQUIRES NO MORE. 

THE CRIMMINS RULE RESTS UPON ANOTHER FOUNDATION:  THAT IT IS
IMPROPER TO FIND CONSPIRATORIAL LIABILITY WHERE THE PARTIES TO THE
ILLICIT AGREEMENT WERE NOT AWARE OF THE FACT GIVING RISE TO FEDERAL
JURISDICITON, BECAUSE THE ESSENCE OF CONSPIRACY IS AGREEMENT AND
PERSONS CANNOT BE PUNISHED FOR ACTS BEYOND THE SCOPE OF THEIR
AGREEMENT.  123 F. 2D, AT 273.  THIS "REASON" STATES LITTLE MORE THAN A
CONCLUSION, FOR IT IS CLEAR THAT ONE MAY BE GUILTY AS A CONSPIRATOR FOR
ACTS THE PRECISE DETAILS OF WHICH ONE DOES NOT KNOW AT THE TIME OF THE
AGREEMENT.  SEE BLUMENTHAL V. UNITED STATES, 332 U.S. 539, 557 (1947). 
THE QUESTION IS NOT MERELY WHETHER THE OFFICIAL STATUS OF AN ASSAULTED
VICTIM WAS KNOWN TO THE PARTIES AT THE TIME OF THEIR AGREEMENT, BUT
WHETHER THE ACTS CONTEMPLATED BY THE CONSPIRATORS ARE TO BE DEEMED
LEGALLY DIFFERENT FROM THOSE ACTUALLY PERFORMED SOLELY BECAUSE OF THE
OFFICIAL IDENTITY OF THE VICTIM.  PUT ANOTHER WAY, DOES THE IDENTITY OF
THE PROPOSED VICTIM ALTER THE LEGAL CHARACTER OF THE ACTS AGREED TO, OR
IS IT NO MORE GERMANE TO THE NATURE OF THOSE ACTS THAN THE COLOR OF THE
VICTIM'S HAIR? 

OUR ANALYSIS OF THE SUBSTANTIVE OFFENSE IN PART II, SUPRA, IS
SUFFICIENT TO CONVINCE US THAT FOR THE PURPOSE OF INDIVIDUAL GUILT OR
INNOCENCE, AWARENESS OF THE OFFICIAL IDENTITY OF THE ASSAULT VICTIM IS
IRRELEVANT.  WE WOULD EXPECT THE SAME TO OBTAIN WIHT RESPECT TO THE
CONSPIRACY OFFENSE UNLESS ONE OF THE POLICIES BEHIND THE IMPOSITION OF
CONSPIRATORIAL LIABILITY IS NOT SERVED WHERE THE PARTIES TO THE
AGREEMENT ARE UNAWARE THAT THE INTENDED TARGET IS A FEDERAL LAW
ENFORCEMENT OFFICIAL. 

IT IS WELL SETTLED THAT THE LAW OF CONSPIRACY SERVES ENDS DIFFERENT
FROM, AND COMPLEMENTARY TO, THOSE SERVED BY CRIMINAL PROHIBITIONS OF
THE SUBSTANTIVE OFFENSE.  BECAUSE OF THIS, CONSECUTIVE SENTENCES MAY BE
IMPOSED FOR THE CONSPIRACY AND FOR THE UNDERLYING CRIME.  CALLANAN V.
UNITED STATES, 364 U.S. 587 (1961); PINKERTON V. UNITED STATES, 328
U.S. 640 (1946).  OUR DECISIONS HAVE IDENTIFIED TWO INDEPENDENT VALUES
SERVED BY THE LAW OF CONSPIRACY.  THE FIRST IS PROTECTION OF SOCIETY
FROM THE DANGERS OF CONCERTED CRIMINAL ACTIVITY, CALLANAN V. UNITED
STATES, 364 U.S., AT 593; DENNIS V. UNITED STATES, 341 U.S. 494, 573 -
574 (1951) (JACKSON, J., CONCURRING).  THAT INDIVIDUALS KNWO THAT THEIR
PLANNED JOINT VENTURE VIOLATES FEDERAL AS WELL AS STATE LAW SEEMS
TOTALLY IRRELEVANT TO THAT PURPOSE OF CONSPIRACY LAW WHICH SEEKS TO
PROTECT SOCIETY FROM THE DANGERS OF CONCERTED CRIMINAL ACTIVITY.  GIVEN
THE LEVEL OF CRIMINAL INTENT NECESSARY TO SUSTAIN CONVICITON FOR THE
SUBSTANTIVE OFFENSE, THE ACT OF AGREEMENT TO COMMIT THE CRIM IS NO LESS
OPPROBRIOUS AND NO LESS DANGEROUS BECAUSE OF THE ABSENCE OF KNOWLEDGE
OF A FACT UNNECESSARY TO THE FORMATION OF CRIMINAL INTENT.  INDEED,
UNLESS IMPOSITION OF AN "ANTI-FEDERAL" KNOWLEDGE REQUIREMENT SERVES
SOCIAL PURPOSES EXTERNAL TO THE LAW OF CONSPIRACY OF WHICH WE ARE
UNAWARE, ITS IMPOSITION HERE WOULD SERVE ONLY TO MAKE IT MORE DIFFICULT
TO OBTAIN CONVICTIONS ON CHARGES OF CONSPIRACY, A POLICY WITH NO
APPARENT PURPOSE. 

THE SECOND ASPECT IS THAT CONSPIRACY IS AN INCHOATE CRIME.  THIS IS
TO SAY, THAT, ALTHOUGH THE LAW GENERALLY MAKES CRIMINAL ONLY ANTISOCIAL
CONDUCT, AT SOME POINT IN THE CONTINUUM BETWEEN PREPARATION AND
CONSUMMATION, THE LIKEIHOOD OF A COMMISSION OF AN ACT IS SUFFICIENTLY
GREAT AND THE CRIMINAL INTENT SUFFICIENTLY WELL FORMED TO JUSTIFY THE
INTERVENTION OF THE CRIMINAL LAW.  SEE NOTE, DEVELOPMENTS IN THE LAW--
CRIMINAL CONSPIRACY, 72 HARV. L. REV., AT 923 - 925.  THE LAW OF
CONSPIRACY IDENTIFIES THE AGREEMENT TO ENGAGE IN A CRIMINAL VENTURE AS
AN EVENT OF SUFFICIENT THREAT TO SOCIAL ORDER TO PERMIT THE IMPOSITION
OF CRIMINAL SANCTIONS FOR THE AGREEMENT ALONE, PLUS AN OVERT ACT IN
PURSUIT OF IT, REGARDLESS OF WHETHER THE CRIME AGREED UPON ACTUALLY IS
COMMITTED.  UNITED STATES V. BAYER, 331 U.S. 532, 542 (1947).  CRIMINAL
INTENT HAS CRYSTALLIZED, AND THE LIKELIHOOD OF ACTUAL, FULFILLED
COMMISSION WARRANTS PREVENTIVE ACTION. 

AGAIN, WE DO NOT SEE HOW IMPOSITION OF A STRICT "ANTI-FEDERAL"
SCIENTER REQUIREMENT WOULD RELATE TO THIS PURPOSE OF CONSPIRACY LAW. 
GIVEN THE LEVEL OF INTENT NEEDED TO CARRY OUT THE SUBSTANTIVE OFFENSE,
WE FAIL TO SEE HOW THE AGREEMENT IS ANY LESS BLAMEWORTHY OR CONSTITUTES
LESS OF A DANGER TO SOCIETY SOLELY BECAUSE THE PARTICIPANTS ARE UNAWARE
WHICH BODY OF LAW THEY INTEND TO VIOLATE.  THEREFORE, WE AGAIN CONCLUDE
THAT IMPOSITION OF A REQUIREMENT OF KNOWLEDGE OF THOSE FACTS THAT SERVE
ONLY TO ESTABLISH FEDERAL JURISDICITON WOULD RENDER IT MORE DIFFICULT
TO SERVE THE POLICY BEHIND THE LAW OF CONSPIRACY WITHOUT SERVING ANY
OTHER APPARENT SOCIAL POLICY. 

WE HOLD, THEN, THAT ASSAULT OF A FEDERAL OFFICER PURSUANT TO AN
AGREEMENT TO ASSAULT IS NOT, EVEN IN THE WORDS OF JUDGE HAND, "BEYOND
THE REASONABLE INTENDMENT OF THE COMMON UNDERSTANDING," UNITED STATES
V. CRIMMINS, 123 F. 2D, AT 273.  THE AGREEMENT IS NOT THEREBY ENLARGED,
FOR KNOWLEDGE OF THE OFFICIAL IDENTITY OF THE VICTIM IS IRRELEVANT TO
THE ESSENTIAL NATURE OF THE AGREEMENT, ENTRANCE INTO WHICH IS MADE
CRIMINAL BY THE LAW OF CONSPIRACY. 

AGAIN WE POINT OUT, HOWEVER, THAT THE STATE OF KNOWLEDGE OF THE
PARTIES TO AN AGREEMENT IS NOT ALWAYS IRRELEVANT IN A PROCEEDING
CHARGING A VIOLATION OF CONSPIRACY LAW.  FIRST, THE KNOWLEDGE OF THE
PARTIES IS RELEVATN TO THE SAME ISSUES AND TO THE SAME EXTENT AS IT MAY
BE FOR CONVICITON OF THE SUBSTANTIVE OFFENSE.  SECOND, WHETHER
CONSPIRATORS KNEW THE OFFICIAL IDENTITY OF THEIR QUARRY MAY BE
IMPORTANT, IN SOME CASES, IN ESTABLISHING THE EXISTENCE OF FEDERAL
JURISDICTION.  THE JURISDICITONAL REQUIREMENT IS SATISFIED BY THE
EXISTENCE OF FACTS TYING THE PROSCRIBED CONDUCT TO THE AREA OF FEDERAL
CONCERN DELINEATED BY THE STATUTE.  FEDERAL JURISDICTION ALWAYS EXISTS
WHERE THE SUBSTANTIVE OFFENSE IS COMMITTED IN THE MANNER THEREIN
DESCRIBED, THAT IS, WHEN A FEDERAL OFFICER IS ATTACKED.  WHERE,
HOWEVER, THERE IS AN UNFULFILLED AGREEMENT TO ASSAULT, IT MUST BE
ESTABLISHED WHETHER THE AGREEMENT, STANDING ALONE, CONSTITUTED A
SUFFICIENT THREAT TO THE SAFETY OF A FEDERAL OFFICER SO AS TO GIVE RISE
TO FEDERAL JURISDICTION.  IF THE AGREEMENT CALLS FOR AN ATTACK ON AN
INDIVIDUAL SPECIFICALLY IDENTIFIED, EITHER BY NAME OR BY SOME UNIQUE
CHARACTERISTIC, AS THE PUTATIVE BUYERS IN THE PRESENT CASE, AND THAT
SPECIFICALLY IDENTIFIED INDIVIDUAL IS IN FACT A FEDERAL OFFICER, THE
AGREEMENT MAY BE FAIRLY CHARACTERIZED AS ONE CALLING FOR AN ASSAULT
UPON A FEDERAL OFFICER, EVEN THOUGH THE PARTIES WERE UNAWARE OF THE
VICTIM'S ACTUAL IDENTITY AND EVEN THOUGH THEY WOULD NOT HAVE AGREED TO
THE ASSAULT HAD THEY KNOWN THAT IDENTITY.  WHERE THE OBJECT OF THE
INTENDED ATTACK IS NOT IDENTIFIED WITH SUFFICIENT SPECIFICITY SO AS TO
GIVE RISE TO THE CONCLUSION THAT HAD THE ATTACK BEEN CARRIED OUT THE
VICTIM WOULD HAVE BEEN A FEDERAL OFFICER, IT IS IMPOSSIBLE TO ASSERT
THAT THE MERE ACT OF AGREEMENT TO ASSAULT POSES A SUFFICIENT THREAT TO
FEDERAL PERSONNEL AND FUNCTIONS SO AS TO GIVE RISE TO FEDERAL
JURISDICTION. 

TO SUMMARIZE, WITH THE EXCEPTION OF THE INFREQUENT SITUATION IN
WHICH REFERENCE TO THE KNOWLEDGE OF THE PARTIES TO AN ILLEGAL AGREEMENT
IS NECESSARY TO ESTABLISH THE EXISTENCE OF FEDERAL JURISDICITON, WE
HOLD THAT WHERE KNOWLEDGE OF THE FACTS GIVING RISE TO FEDERAL
JURISDICTION IS NOT NECESSARY FOR CONVICTION OF A SUBSTANTIVE OFFENSE
EMBODYING A MENS REA REQUIREMENT, SUCH KNOWLEDGE IS EQUALLY IRRELEVANT
TO QUESTIONS OF RESPONSIBILITY FOR CONSPIRACY TO COMMIT THAT OFFENSE. 

THE JUDGMENT OF THE COURT OF APPEALS WITH RESPECT TO THE
RESPONDENT'S CONSPIRACY CONVICTION IS REVERSED. 

                   IT IS SO ORDERED. 

/1/ "SEC.  111.  ASSAULTING, RESISTING, OR IMPEDING CERTAIN OFFICERS
OR EMPLOYEES. 

" WHOEVER FORCIBLY ASSAULTS, RESISTS, OPPOSES, IMPEDES, INTIMIDATES,
OR INTERFERES WITH ANY PERSON DESIGNATED IN SECTION 1114 OF THIS TITLE
WHILE ENGAGED IN OR ON ACCOUNT OF THE PERFORMANCE OF HIS OFFICIAL
DUTIES, SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN
THREE YEARS, OR BOTH. 

" WHOEVER, IN THE COMMISSION OF ANY SUCH ACTS USES A DEADLY OR
DANGEROUS WEAPON, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED
NOT MORE THAN TEN YEARS, OR BOTH." 

AMONG THE PERSONS "DESIGNATED IN SECTION 1114" OF 18 U.S.C. IS "ANY
OFFICER OR EMPLOYEE . . . OF THE BUREAU OF NARCOTICS AND DANGEROUS
DRUGS." 

/2/ CODEFENDANT ALSONDO WAS ALSO CONVICTED OF CARRYING A FIREARM
UNLAWFULLY DURING THE COMMISSION OF THE OTHER FELONIES, IN VIOLATION OF
18 U.S.C. SEC. 924 (C)(2). 

/3/ THE APPEAL OF THE FOURTH DEFENDANT, FARR, WAS PROCESSED
SEPARATELY BY THE COURT OF APPEALS.  A DIFFERENT PANEL, UPON THE
AUTHORITY OF ALSONDO, SIMILARLY AFFIRMED THE JUDGMENT OF CONVICTION ON
THE SUBSTANTIVE CHARGE BUT REVERSED THE CONSPIRACY CONVICTION.  UNITED
STATES V. FARR, 487 F. 2D 1023 (CA2 1973), CERT. PENDING, NO. 73 -
953.  THE DISTRICT COURT IMPOSED CONCURRENT SENTENCES IN FARR'S CASE,
AND THE UNITED STATES HAS NOT SOUGHT REVIEW HERE. 

/4/ SEE, E.G., UNITED STATES V. IANNELLI, 477 F. 2D 999, 1002 (CA3
1973), CERT. GRANTED ON ANOTHER ISSUE, 417 U.S. 907 (1974); UNITED
STATES V. THOMPSON, 476 F. 2D 1196, 1198 - 1200 (CA7), CERT. DENIED,
414 U.S. 918 (1973); UNITED STATES V. POLESTI, 489 F. 2D 822, 824 (CA(
1973), CERT. PENDING, NO. 73 - 5489; UNITED STATES V. ROSELLI, 432 F.
2D 879, 891 - 892 (CA9 1970), CERT. DENIED, 401 U.S. 924 (1971); UNITED
STATES V. FERNANDEZ, 497 F. 2D 730, 738 - 739 (CA9 1974), CERT.
PENDING, NO. 73 - 6868. 

/5/ THE SENTENCE IMPOSED ON CODEFENDANTS ALSONDO AND ROSA POSSESSED
ELEMENTS OF CONCURRENCY AND THE UNITED STATES DID NOT PETITION FOR A
WRIT OF CERTIORARI IN THEIR CASES. 

/6/ THE AGENT OPENED A CLOSET DOOR IN THE MANHATTAN APARTMENT WHERE
THE SALE WAS TO HAVE TAKEN PLACE AND OBSERVED A MAN ON THE FLOOR, BOUND
AND GAGGED.  APP. 11 - 12. 

/7/ THE COURT CHARGED: 

" IN THIS CONNECTION, IT IS NOT NECESSARY FOR THE GOVERNMENT TO
PROVE THAT THE DEFENDANTS OR ANY OF THEM KNEW THAT THE PERSONS THEY
WERE GOING TO ASSAULT OR IMPEDE OR RESIST WERE FEDERAL AGENTS.  IT'S
ENOUGH, AS FAR AS THIS PARTICULAR ELEMENT OF THE CASE IS CONCERNED, FOR
THE GOVERNMENT TO PROVE THAT THE DEFENDANTS AGREED AND CONSPIRED TO
COMMIT AN ASSAULT."  TR. 513. 

" I BELIEVE I HAVE PREVIOUSLY MENTIONED TO YOU THAT THE STATUTE DOES
NOT REQUIRE THAT THE DEFENDANT KNOW EITHER THE IDENTITY OF THE PERSON
ASSAULTED OR IMPEDED) OR INTIMITADED OR THAT THE PERSON ASSAULTED IS A
FEDERAL OFFICER."  ID., AT 525. 

/8/ THE SECOND CIRCUIT CONSISTENTLY HAS SO HELD.  SEE, FOR EXAMPLE,
UNITED STATES V. LOMBARDOZZI, 335 F. 2D 414, 416, CERT. DENIED, 379
U.S. 914 (1964); UNITED STATES V. MONTANARO, 362 F. 2D 527, 528, CERT.
DENIED, 385 U.S. 920 (1966); UNITED STATES V. ULAN, 421 F. 2D 787, 788
(1970). 

/9/ WE ARE CONTENT TO STATE THE ISSUE THIS WAY DESPITE ITS POTENTIAL
TO MISLEAD.  LABELING A REQUIREMENT "JURISDICTIONAL" DOES NOT
NECESSARILY MEAN, OF COURSE, THAT THE REQUIREMENT IS NOT AN ELEMENT OF
THE OFFENSE CONGRESS INTENDED TO DESCRIBE AND TO PUNISH.  INDEED, A
REQUIREMENT IS SUFFICIENT TO CONFER JURISDICTION ON THE FEDERAL COURTS
FOR WHAT OTHERWISE ARE STATE CRIMES PRECISELY BECAUSE IT IMPLICATES
FACTORS THAT ARE AN APPROPRIATE SUBJECT FOR FEDERAL CONCERN.  WITH
RESPECT TO THE PRESENT CASE, FOR EXAMPLE, A MERE GENERAL POLICY OF
DETERRING ASSAULTS WOULD PROBABLY PROVE TO BE AN UNDESIRABLE OR
INSUFFICIENT BASIS FOR FEDERAL JURISDICTION; BUT WHERE CONGRESS SEEKS
TO PROTECT THE INTEGRITY OF FEDERAL FUNCTIONS AND THE SAFETY OF FEDERAL
OFFICERS, THE INTEREST IS SUFFICIENT TO WARRANT FEDERAL INVOLVEMENT. 
THE SIGNIFICANCE OF LABELING A STATUTORY REQUIREMENT AS JURISDICITONAL"
IS NOT THAT THE REQUIREMENT IS VIEWED AS OUTSIDE THE SCOPE OF THE EVIL
CONGRESS INTENDED TO FORESTALL, BUT MERELY THAT THE EXISTENCE OF THE
FACT THAT CONFERS FEDERAL JURISDICITON NEED NOT BE ONE IN THE MIND OF
THE ACTOR AT THE TIME HE PERPETRATES THE ACT MADE CRIMINAL BY THE
FEDERAL STATUTE.  THE QUESTION, THEN, IS NOT WHETHER THE REQUIREMENT IS
JURISDICITONAL, BUT WHETHER IT IS JURISDICITONAL ONLY. 

/10/ BRIEF FOR RESPONDENT 6; TR. OF ORAL ARG. 19. 

/11/ E.G., SPARKS V. UNITED STATES, 90 F. 2D 61, 63 (CA6 1937); HALL
V. UNITED STATES, 235 F. 2D 248, 249 (CA5 1956). 

/12/ E.G., UNITED STATES V. PERKINS, 488 F. 2D 652, 654 (CA1 1973),
CERT. DENIED, 417 U.S. 913 (1974); UNITED STATES V. ULAN, 421 F. 2D, AT
788 (CA2); UNITED STATES V. GOODWIN, 440 F. 2D 1152, 1156 (CA3 1971);
UNITED STATES V. WALLACE, 368 F. 2D 537 (CA4 1966), CERT. DENIED, 386
U.S. 976 (1967); BENNETT V. UNITED STATES, 285 F. 2D 5678 570 - 571
(CA5 1960), CERT. DENIED, 366 U.S. 911 (1961); UNITED STATES V. KIRALY,
445 F. 2D 291, 292 (CA6), CERT. DENIED, 404 U.S. 915 (1971); UNITED
STATES V. GANTER, 436 F. 2D 364, 367 (CA7 1970); UNITED STATES V.
KARTMAN, 417 F. 2D 893, 894 (CA9 1969).  SEE UNITED STATES V. LEACH,
429 F. 2D 9568, 959 - 960 (CA8 1970), CERT, DENIED, 402 U.S. 986
(1971). 

/13/ SECTION 111 ASSUMED ITS PRESENT FORM IN 1948, 62 STAT. 688,
WHEN IT REPLACED BOTH SEC. 118 AND SEC. 254 OF 18 U.S.C. (1940 ED.). 
THE REVISER'S NOTE STATES THAT THIS WAS DONE "WITH CHANGES IN
PHRASEOLOGY AND SUBTANCE NECESSARY TO EFFECT THE CONSOLIDATION."  H.R.
REP. NO. 304, 80TH CONG., 1ST SESS., A12 (1947). 

/14/ UNITED STATES V. FERNANDEZ, 497 F. 2D, AT 744 (HUFSTEDLER, J.,
CONCURRING). 

/15/ SECTION 1 PROVIDED:  " THAT WHOEVER SHALL KILL, AS DEFINED IN
DEPUTY UNITED STATES MARSHAL, SPECIAL AGENT OF THE DIVISION OF
INVESTIGATION OF THE DEPARTMENT OF JUSTICE, POST-OFFICE INSPECTOR,
SECRET SERVICE OPERATIVE, ANY OFFICER OR ENLISTED MAN OF THE COAST
GUARD, ANY EMPLOYEE OF ANY UNITED STATES PENAL OR CORRECTIONAL
INSTITUTION, ANY OFFICER OF THE CUSTOMS OR OF THE INTERNAL REVENUE, ANY
IMMIGRANT INSPECTOR OR ANY IMMIGRATION PATROL INSPECTOR, WHILE ENGAGED
IN THE PERFORMANCE OF HIS OFFICIAL DUTIES, OR ON ACCOUNT OF THE
PERFORMANCE OF HIS OFFICIAL DUTIES, SHALL BE PUNISHED AS PROVIDED UNDER
THE PRESENT SEC. 1114 REVEALS HOW THE LIST OF PROTECTED FEDERAL
OFFICERS HAS BEEN GREATLY EXPANDED.  PLAINLY, SOME OF THOSE NOW NAMED,
VIZ., "EMPLOYEE OF THE POSTAL SERVICE" AND "EMPLOYEE OF THE NATIONAL
PARK SERVICE," ARE NOT NECESSARILY ENGAGED IN THE EXECUTION OF FEDERAL
LAW. 

/16/ S. REP. NO. 535, 73D CONG., 2D SESS. (1934); H.R. REP. NO.
1455, 73D CONG., 2D SESS. (1934); H.R. CONF. REP. NO. 1593, 73D CONG.,
2D SESS. (1934); 78 CONG. REC. 8126 - 8127 (1934). 

THE ATTORNEY GENERAL'S LETTER WAS ADDRESSED TO SENATOR ASHURST,
CHAIRMAN OF THE SENATE COMMITTEE ON THE JUDICIARY, AND READ IN FULL AS
FOLLOWS: 

" MY DEAR SENATOR:  I WISH AGAIN TO RENEW THE RECOMMENDATION OF THIS
DEPARTMENT THAT LEGISLATION BE ENACTED MAKING IT A FEDERAL OFFENSE
FORCIBLY TO RESIST, IMPEDE, OR INTERFERE WITH, OR TO ASSAULT OR KILL,
ANY OFFICIAL OR EMPLOYEE OF THE UNITED STATES WHILE ENGAGED IN, OR ON
ACCOUNT OF, THE PERFORMANCE OF HIS OFFICIAL DUTIES.  CONGRESS HAS
ALREADY MADE IT A FEDERAL OFFENSE TO ASSAULT, RESIST, ETC., OFFICERS OR
EMPLOYEES OF THE BUREAU OF ANIMAL INDUSTRY OF THE DEPARTMENT OF
AGRICULTURE WHILE ENGAGED IN OR ON ACCOUNT OF THE EXECUTION OF THEIR
DUTIES (SEC. 62, C.C.; SEC. 118, TITLE 18, U.S.C.); TO ASSAULT, RESIST,
ETC., OFFICERS AND OTHERS OF THE CUSTOMS AND INTERNAL REVENUE, WHILE
ENGAGED IN THE EXECUTION OF THEIR DUTIES (SEC. 65, C.C.; SEC. 121,
TITLE 18, U.S.C.); TO ASSAULT, RESIST, BEAT, WOUND, ETC., ANY OFFICER
OF THE UNITED STATES, OR OTHER PERSON DULY AUTHORIZED, WHILE SERVING OR
ATTEMPTING TO SERVE THE PROCESS OF ANY COURT OF THE UNITED STATES (SEC.
140, .C.C; SEC. 245, TITLE 18, U.S.C.); AND TO ASSAULT, RESIST, ETC.,
IMMIGRATION OFFICIALS OR EMPLOYEES WHILE ENGAGED IN THE PERFORMANCE OF
THEIR DUTIES (SEC. 16, IMMIGRATION ACT OF FEB. 5, 1917, C. 29, 39 STAT.
885; SEC. 152, TITLE 8, U.S.C.).  THREE OF THE STAUTES JUST CITED
IMPOSE AN INCREASED PENALTY WHEN A DEADLY OR DANGEROUS WEAPON IS USED
IN RESISTING THE OFFICER OR EMPLOYEE.     " THE NEED FOR GENERAL
LEGISLATION OF THE SAME CHARACTER, FOR THE PROTECTION OF FEDERAL
OFFICERS AND EMPLOYEES OTHER THAN THOSE SPECIFICALLY EMBRACED IN THE
STATUTES ABOVE CITED, BECOMES INCREASINGLY APPARENT EVERY DAY.  THE
FEDERAL GOVERNMENT SHOULD NOT BE COMPELLED TO RELY UPON THE COURTS OF
THE STATES, HOWEVER RESPECTABLE AND WELL DISPOSED, FOR THE PROTECTION
OF ITS INVESTIGATIVE AND LAW-ENFORCEMENT PERSONNEL; AND CONGRESS HAS
RECOGNIZED THIS FACT AT LEAST TO THE EXTENT INDICATED BY THE SPECIAL
ACTS ABOVE CITED.  THIS DEPARTMENT HAS FOUND NEED FOR SIMILAR
LEGISLATION FOR THE ADEQUATE PROTECTION OF THE SPECIAL AGENTS OF ITS
DIVISION OF INVESTIGATION, SEVERAL OF WHOM HAVE BEEN ASSAULTED IN THE
COURSE OF A YEAR, WHILE IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 

" IN THESE CASES RESORT MUST USUALLY BE HAD TO THE LOCAL POLICE
COURT, WHICH AFFORDS BUT LITTLE RELIEF TO US, UNDER THE CIRCUMSTANCES,
IN OUR EFFORT TO FURTHER THE LEGITIMATE PURPOSES OF THE FEDERAL
GOVERNMENT.  IT WOULD SEEM TO BE PREFERABLE, HOWEVER, INSTEAD OF
FURTHER EXTENDING THE PIECEMENAL LEGISLATION NOW ON THE STATUTE BOOKS,
TO ENACT A BROAD GENERAL STATUTE TO EMBRACE ALL PROPER CASES, BOTH
WITHIN AND OUTSIDE THE SCOPE OF EXISTING LEGISLATION.  OTHER CASES IN
POINT ARE ASSAULTS ON LETTER CARRIERS, TO COVER WHICH THE POST OFFICE
DEPARTMENT HAS FOR SEVERAL YEARS PAST SOUGHT LEGISLATION; AND THE
SERIOUS WOUNDING, A COUPLE OF YEARS AGO, OF THE WARDEN OF THE FEDERAL
PENITENTIARY AT LEAVENWORTH BY ESCAPED CONVICTS OUTSIDE THE FEDERAL
JURISDICITON.  IN THE LATTER CASE IT WAS POSSIBLE TO PUNISH THE ESCAPED
CONVICTS UNDER FEDERAL LAW FOR THEIR ESCAPE; BUT THEY COULD NOT BE
PUNISHED UNDER ANY FEDERAL LAW FOR THE SHOOTING OF THE WARDEN. 

" I HAVE THE HONOR, THEREFORE, TO ENCLOSE HEREWITH A COPY OF S.3184,
WHICH WAS INTRODUCED AT THE REQUEST OF THIS DEPARTMENT IN THE SEVENTY
SECOND CONGRESS AND TO URGE ITS REINTRODUCTION IN THE PRESENT CONGRESS;
AND TO EXPRESS THE HOPE THAT IT MAY RECEIVE THE PROMPT AND SERIOUS
CONSIDERATION OF YOUR COMMITTEE. 

" RESPECTFULLY,

                       " HOMER CUMMINGS, " ATTORNEY GENERAL." 

/17/ THIS CONCLUSION IS SUPPORTED BY THE WORDING OF SEC. 2 OF THE
1934 ACT (AND OF THE PRESENT SEC. 111), FOR THAT SECTION OUTLAWED MORE
THAN ASSAULTS.  IT MADE IT A CRIMINAL OFFENSE "FORCIBLY (TO) RESIST,
OPPOSE, IMPEDE, INTIMIDATE, OR INTERFERE WITH" THE NAMED OFFICIALS
WHILE IN THE PERFORMANCE OF DUTY.  STATUTORY LANGUAGE OF THIS TYPE HAD
APPEARED AS EARLY AS 1866, IN SEC. 6 OF THE ACT OF JULY 18 OF THAT
YEAR, 14 STAT. 179, EMBRACING A COMPREHENSIVE SCHEME FOR THE PREVENTION
OF SMUGGLING.  THE BULK OF THAT STATUTE, TO BE SURE, WAS CONCERNED WITH
ESSENTIALLY REGULATORY MATTERS; SEC. 6, HOWEVER, PROSCRIBED A BROAD
RANGE OF ACTIONS--BEYOND SIMPLE FORCIBLE RESISTANCE--THAT WOULD
FRUSTRATE EFFECTIVE ENFORCEMENT OF THE BODY OF THE STATUTE.  IN
EMPLOYING A SIMILAR FORMULATION IN 1934, CONGRESS COULD BE PRESUMED TO
BE GOING BEYOND MERE PROTECTION OF THE SAFETY OF FEDERAL OFFICERS
WITHOUT REGARD TO THE INTERGRITY OF THEIR OFFICIAL FUNCTIONS. 

/18/ SOME INDICATION THAT CONGRESS DID NOT INTEND TO EXCLUDE
UNDERCOVER AGENTS FROM THE PROTECTION OF THE STATUTE COMES FROM THE
INCLUSION OF THE TERM " SECRET SERVICE OPERATIVE" IN THE LIST OF
PROTECTED OFFICIALS IN THE 1934 ACT.  IN THE 1948 REVISION, THAT TERM
WAS REPLACED BY "ANY OFFICER OR EMPLOYEE OF THE SECRET SERVICE OR OF
THE BUREAU OF NARCOTICS."  62 STAT. 756.  THAT BUREAU, IN 1948 PART OF
THE TREASURY, HAS SINCE BEEN ABOLISHED AND ITS FUNCTIONS TRANSFERRED TO
THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS, THE PREDECESSOR AGENCY TO
THE PRESENT DRUG ENFORCEMENT ADMINISTRATION.  SEE REORGANIZATION PLAN
NO. 2 OF 1973, 38 FED. REG. 15932. 

OUR BROTHER STEWART IN DISSENT ASSERTS, POST, AT 705 - 706, THAT
SINCE ONLY STATE PROHIBITIONS OF SIMPLE ASSAULT DETER ATTACK ON THE
UNDERCOVER AGENT, IT IS "NONSENSE" TO HOLD THAT CONGRESS CONCLUDED THAT
A STRICT SCIENTER REQUIREMENT WOULD HAVE GIVEN INSUFFICIENT PROTECTION
TO UNDERCOVER AGENTS.  THIS ARGUMENT CONVENIENTLY IGNORES SEC. 1 OF THE
1934 ACT, THE HOMICIDE PROHIBITION.  CERTAINLY PRIOR TO 1934 ALL STATES
OUTLAWED MURDER, AND IF THE CONGRESSIONAL JUDGMENT THAT THERE WAS NEED
TO PROSECUTE IN FEDERAL COURTS ASSAULTS UPON FEDERAL OFFICERS
REGARDLESS OF THE REACH OF STATE LAW WAS "NONSENSE," ENACTMENT OF THE
HOMICIDE PROHIBITION--COMPLETELY DUPLICATING THE COVERAGE OF STATE
STATUTES--WAS LEGISLATIVE FATUITY.  IT IS MORE PLAUSIBLE, WE THINK, TO
CONCLUDE THAT CONGRESS CHOSE NOT TO ENTRUST TO THE STATES SOLE
RESPONSIBILITY FOR THE INTERDICITON OF ATTACKS, FATAL OR NOT, UPON
FEDERAL LAW ENFORCEMENT OFFICIALS--A MATTER ESSENTIAL TO THE MORALE OF
ALL FEDERAL LAW ENFORCEMENT PERSONNEL AND CENTRAL TO THE EFFICACY OF
FEDERAL LAW ENFORCEMENT ACTIVITIES.  THE DISSENT WOULD HAVE US CONCLUDE
THAT CONGRESS SILENTLY CHOSE TO TREAT ASSAULTS AND HOMICIDES
DIFFERENTLY; BUT WE HAVE BEFORE US ONE BILL WITH A SINGLE LEGISLATIVE
HISTORY, AND WE DECLINE TO BIFURCATE OUR INTERPRETATION. 

/19/ SEE UNITED STATES V. PERKINS, 488 F. 2D, AT 654 - 655; UNITED
STATES V. ULAN, 421 F. 2D, AT 789 - 790; UNITED STATES V. GOODWIN, 440
F. 2D, AT 1156; UNITED STATES V. YOUNG, 464 F. 2D 160, 163 (CA5 1972). 

/20/ TITLE 18 U.S.C. SEC. 371 PROVIDES: 

" 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." 

/21/ SEE, E.G., UNITED STATES V. VILHOTTI, 452 F. 2D 1186, 1190
(1971), CERT. DENIED, 406 U.S. 947 (1972), AND SUB NOM. MALONEY V.
UNITED STATES, 405 U.S. 1041 (1972); UNITED STATES V. SHERMAN, 171 F.
2D 619, 623 - 624 (1948), CERT. DENIED SUB NOM. GRIMALDI V. UNITED
STATES AND WHELAN V. UNITED STATES, 337 U.S. 931 (1949). 

/22/ SEE, E.G., UNITED STATES V. POLESTI, 489 F. 2D, AT 824; UNITED
STATES V. ROSELLI, 432 F. 2D, AT 891 - 892. 

/23/ SEE, E.G., UNITED STATES V. GARAFOLA, 471 F. 2D 291 (CA6 1972);
UNITED STATES V. IACOVETTI, 466 F. 2D 1147, 1154 (CA5 1972), CERT.
DENIED, 410 U.S. 908 (1973); UNITED STATES V. CIMINI, 427 F. 2D 129,
130 (CA6 1970); NASSIF V. UNITED STATES, 370 F. 2D 147, 152 - 153 (CA8
1966). 

WHAT LITTLE COMMENTARY THE CRIMMINS RULE HAS ATTRACTED HAS BEEN
UNIFORMLY CRITICAL.  SEE NOTE, DEVELOPMENTS IN THE LAW--CRIMINAL
CONSPIRACY, 72 HARV. L. REV. 920, 937 - 940 (1959); MODEL PENAL CODE
SEC. 5.03 (TENT.  DRAFT NO. 10, 1960); 1 WORKING PAPERS OF THE NATIONAL
COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS 388 - 389 (1970); FINAL
REPORT OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS
SEC. 203, 204, AND 1004 (1971). 

/24/ THE GOVERNMENT RATHER EFFECTIVELY EXPOSES THE FALLACY OF THE
CRIMMINS TRAFFIC LIGHT ANALOGY BY RECASTIN IT IN TERMS OF A
JURISDICITONAL ELEMENT.  THE SUGGESTED EXAMPLE IS A TRAFFIC LIGHT ON AN
INDIAN RESERVATION.  SURELY, ONE MAY CONSPIRE WITH OTHERS TO DISOBEY
THE LIGHT BUT BE IGNORANT OF THE FACT THAT IT IS ON THE RESERVATION. 
AS APPLIED TO A JURISDICITONAL ELEMENT OF THIS KIND THE FORMULATION
MAKES LITTLE SENSE. 

/25/ " STARTING WITH PEOPLE V. POWELL . . . THE ANOMALOUS DOCTRINE
HAS INDEED GAINED SOME FOOTING IN THE CIRCUIT COURTS OF APPEALS THAT
FOR CONSPIRACY THERE MUST BE A 'CORRUPT MOTIVE.  . . .'  YET IT IS HARD
TO SEE ANY REASON FOR THIS, OR WHY MORE PROOF SHOULD BE NECESSARY THAN
THAT THE PARTIES HAD IN CONTEMPLATION ALL THE ELEMENTS OF THE CRIME
THEY ARE CHARGED WITH CONSPIRACY TO COMMIT."  UNITED STATES V. MACK,
112 F. 2D 290, 292 (CA2 1940). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

DOES AN ASSAULT ON A FEDERAL OFFICER VIOLATE 18 U.S.C. SEC. 111 /1/
EVEN WHEN THE ASSAILANT IS UNAWARE, AND HAS NO REASON TO KNOW, THAT THE
VICTIM IS OTHER THAN A PRIVATE CITIZEN OR, INDEED, A CONFEDERATE IN
CRIME?  THIS IMPORTANT QUESTION, NEVER DECIDED BY THE COURT, IS
SQUARELY PRESENTED IN A PETITION FOR CERTIORARI THAT HAS BEEN PENDING
HERE FOR MANY MONTHS:  NO. 73 6868, FERNANDEZ V. UNITED STATES.  /2/
BUT THIS QUESTION WAS NOT CONTAINED IN THE PETITION FOR CERTIORARI IN
THE PRESENT CASE, AND HAS NOT BEEN ADDRESSED IN EITHER THE BRIEFS OR
ORAL ARGUMENTS.  THE PARTIES HAVE MERELY ASSUMED THE ANSWER TO THE
QUESTION, AND DIRECTED THEIR ATTENTION TO THE SEPARATE QUESTION WHETHER
SCIENTER IS AN ELEMENT OF CONSPIRING TO VIOLATE SEC. 111.  NEVERTHELESS
THE COURT SETS OUT SUA SPONTE TO DECIDE THE BASIC QUESTION PRESENTED IN
FERNANDEZ WITHOUT THE BENEFIT OF EITHER BRIEFING OR ORAL ARGUMENT BY
COUNSEL. 

THIS CONSPICUOUS DISREGARD OF THE MOST BASIC PRINCIPLE OF OUR
ADVERSARY SYSTEM OF JUSTICE SEEMS TO ME INDEFENSIBLE.  CLEARLY, THE
PETITION FOR CERTIROARI IN FERNANDEZ SHOULD HAVE BEEN GRANTED, AND THAT
CASE DECIDED AFTER BRIEFING AND ORAL ARGUMENT ON ITS MERITS, BEFORE THE
SUBSIDIARY ISSUE IN THE PRESENT CASE WAS CONSIDERED.  IT IS NOT TOO
LATE TO CORRECT THE SERIOUS JUDICIAL MISTAKE THE COURT HAS MADE.  WE
SHOULD GRANT CERTIORARI IN FERNANDEZ NOW, AND SET THE PRESENT CASE FOR
REHEARING AFTER THE ARGUMENT IN FERNANDEZ HAS BEEN HAD.  BUT THE COURT
REJECTS THAT COURSE, AND I PERFORCE ADDRESS THE FUNDAMENTAL FERNANDEZ
QUESTION. 

THE COURT RECOGNIZES THAT "(THE QUESTION . . . IS NOT WHETHER THE
('FEDERAL OFFICER') REQUIREMENT IS JURISDICTIONAL, BUT WHETHER IT IS
JURISDICTIONAL ONLY."  ANTE, AT 677 N. 9.  PUT OTHERWISE, THE QUESTION
IS WHETHER CONGRESS INTENDED TO WRITE AN AGGRAVATED ASSAULT STATUTE,
ANALOGOUS TO THE MANY STATE STATUTES WHICH PROTECT THE PERSONS AND
FUNCTIONS OF STATE OFFICERS AGAINST ASSAULT, OR WHETHER CONGRESS
INTENDED MERELY TO FEDERALIZE EVERY ASSAULT WHICH HAPPENS TO HAVE A
FEDERAL OFFICER AS ITS VICTIM.  THE COURT CHOOSES THE LATTER
INTERPRETATION, READING THE FEDERAL-OFFICER REQUIREMENT TO BE
JURISDICTIONAL ONLY.  THIS CONCLUSION IS INCONSISTENT WITH THE
PERTINENT LEGISLATIVE HISTORY, THE VERBAL STRUCTURE OF SEC. 111,
ACCEPTED CANNONS OF STATUTORY CONSTRUCTION, AND THE DICTATES OF COMMON
SENSE. 

MANY STATES PROVIDE AN AGGRAVATED PENALTY FOR ASSAULTS UPON STATE
LAW ENFORCEMENT OFFICERS; TYPICALLY THE VICTIM-STATUS ELEMENT
TRANSFORMS THE ASSAULT FROM A MISDEMEANOR TO A FELONY.  /3/ THESE
STATUTES HAVE A TWOFOLD PURPOSE:  TO REFLECT THE SOCIETAL GRAVITY
ASSOCIATED WITH ASSAULTING A PUBLIC OFFICER AND, BY PROVIDING AN
ENHANCED DETERRENT AGAINST SUCH ASSAULT, TO ACCORD TO PUBLIC OFFICERS
AND THEIR FUNCTIONS A PROTECTION GREATER THAN THAT WHICH THE LAW OF
ASSAULT OTHERWISE PROVIDES TO PRIVATE CITIZENS AND THEIR PRIVATE
ACTIVITIES.  /4/ CONSONANT WITH THESE PURPOSES, THE ACCUSED'S KNOWLEDGE
THAT HIS VICTIM HAD AN OFFICIAL STATUS OR FUNCTION IS INVARIABLY
RECOGNIZED BY THE STATES AS AN ESSENTIAL ELEMENT OF THE AGGRAVATED
OFFENSE.  /5/ WHERE AN ASSAILANT HAD NO SUCH KNOWLEDGE, HE COULD NOT OF
COURSE BE DETERRED BY THE STATUTORY THREAT OF ENHANCED PUNISHMENT, AND
IT MAKES NO SENSE TO REGARD TO UNKNOWING ASSAULT AS BEING ANY MORE
REPREHENSIBLE, IN A MORAL OR RETRIBUTIVE SENSE, THAN IF THE VICTIM HAD
BEEN, AS THE ASSAILANT SUPPOSED, A PRIVATE CITIZEN. 

THE STATE STATUTES PROTECT ONLY STATE OFFICERS.  I WOULD READ SEC.
111 AS FILLING THE GAP AND SUPPLYING ANALOGOUS PROTECTION FOR FEDERAL
OFFICERS AND THEIR FUNCTIONS.  AN AGGRAVATED PENALTY SHOULD APPLY ONLY
WHERE AN ASSAILANT KNEW, OR HAD REASON TO KNOW, THAT HIS VICTIM HAD
SOME OFFICIAL STATUS OR FUNCTION.  IT IS IMMATERIAL WHETHER THE
ASSAILANT KNEW THE VICTIM WAS EMPLOYED BY THE FEDERAL, AS OPPOSED TO A
STATE OR LOCAL, GOVERNMENT.  THAT IS A MATTER OR "JURISDICITON ONLY,"
FOR IT DOES NOT AFFECT THE MORAL GRAVITY OF THE ACT.  IF THE VICTIM WAS
A FEDERAL OFFICER, SEC. 111 APPLIES; IF HE WAS A STATE OR LOCAL
OFFICER, AN ANALOGOUS STATE STATUTE OR LOCAL ORDIANCE WILL GENERALLY
APPLY.  BUT WHERE THE ASSAILANT REASONABLY THOUGHT HIS VICTIM A COMMON
CITIZEN OR, INDEED, A CONFEDERATE IN CRIME, AGGRAVATION IS SIMPLY OUT
OF PLACE, AND THE CASE SHOULD BE TRIED IN THE APPROPRIATE FORUM UNDER
THE GENERAL LAW OF ASSAULT, AS ARE UNKNOWING ASSAULTS ON STATE
OFFICERS. 

THE HISTORY OF SEC. 111 PERMITS NO DOUBT THAT THIS IS AN AGGRAVATED
ASSAULT STATUTE, REQUIRING PROOF OF SCIENTER.  THE PROVISION DERIVES
FROM A 1934 STATUTE, 18 U.S.C. SEC. 254 (1940 ED.), SET OUT IN THE
MARGIN.  /6/ THE ATTORNEY GENERAL PROPOSED THE STATUTE IN A LETTER TO
THE CHAIRMAN OF THE SENATE COMMITTEE ON THE JUDICIARY; THE ATTORNEY
GENERAL'S REASONS ARE THE ONLY ONES ON RECORD FOR THE PROVISION.  /7/
THE FEDERAL OFFICERS COVERED WERE LISTED IN A COMPANION PROVISION,
SIMULTANEOUSLY ENACTED, PROSCRIBING THE KILLING OF FEDERAL OFFICERS. 
/8/ THE PRESENT SEC. 111 EMERGED FROM THE 1948 RECODIFICATION OF TITLE
18, /9/ "WITH CHANGES IN PHRASEOLOGY AND SUBSTANCE NECESSARY TO EFFECT
THE CONSOLIDATION" OF THE FORMER SEC. 254 WITH A MINOR 1909 STATUTE
PROSCRIBING ASSAULTS ON OFFICERS OF THE " BUREAU OF ANIMAL INDUSTRY OF
THE DEPARTMENT OF AGRICULTURE."  /10/  AS THE COURT HAS RECOGNIZED, THE
PURPORT OF THE PRESENT SEC. 111 MUST BE DERIVED FROM ITS MAJOR SOURCE,
THE 1934 ENACTMENT.  SEE LADNER V. UNITED STATES, 358 U.S. 169, 176 N.
4. 

RUMMAGING THROUGH THE SPARE LEGISLATIVE HISTORY OF THE 1934 LAW, THE
COURT MANAGES TO PERSUADE ITSELF THAT CONGRESS INTENDED TO REACH
UNKNOWING ASSAULTS ON FEDERAL OFFICERS.  ANTE, AT 679 - 684.  BUT IF
THAT WAS THE CONGRESSIONAL INTENTION, WHICH I SERIOUSLY DOUBT, IT FOUND
NO EXPRESSION IN THE LEGISLATIVE PRODUCT.  THE FACT IS THAT THE 1934
STATUTE EXPRESSLY REQUIRED SCIENTER FOR AN ASSAULT CONVICTION.  AN
ASSAULT ON A FEDERAL OFFICER WAS PROSCRIBED ONLY IF PERPETRATED "ON
ACCOUNT OF THE PERFORMANCE OF HIS OFFICIAL DUTIES."  SEE N. 6, SUPRA.
THAT IS, IT WAS NECESSARY NOT ONLY THAT THE ASSAILANT HAVE NOTICE THAT
HIS VICTIM POSSESSED OFFICIAL STATUS OR DUTIES BUT ALSO THAT THE
ASSAILANT'S MOTIVE BE RETALIATION AGAINST THE EXERCISE OF THOSE
DUTIES.     IT WAS NOT UNTIL THE 1948 RECODIFICATION THAT THE
PROSCRIPTION WAS EXPANDED TO COVER ASSAULTS ON FEDERAL OFFICERS "WHILE
ENGAGED IN," AS WELL AS "ON ACCOUNT OF, "THE PERFORMANCE OF OFFICIAL
DUTIES.  THIS WAS, AS THE REVISER OBSERVED, A TECHNICAL ALTERATION; IT
PRODUCED NO INSTRUCTIVE LEGISLATIVE HISTORY.  SEE N. 10, SUPRA.  AS
PRESENTLY WRITTEN, THE STATUTE DOES CLEARLY REACH KNOWING ASSAULTS
REGARDLESS OF MOTIVE.  BUT TO SUGGEST THAT IT ALSO REACHES WHOLLY
UNKNOWING ASSAULTS IS TO CONVERT THE 1948 ALTERATION INTO ONE OF MAJOR
SUBSTANTIVE IMPORTANCE, WHICH IT CONCEDEDLY WAS NOT. 

THE COURT HAS ALSO MANAGED TO CONVINCE ITSELF THAT SEC. 254 WAS NOT
AN AGGRAVATED ASSAULT STATUTE.  THE SUREST EVIDENCE THAT SEC. 254 WAS
AN AGGRAVATED ASSAULT STATUTE MAY BE FOUND IN ITS PENALTY PROVISION. 
/11/ A SINGLE UNARMED ASSAULT WAS MADE, AND REMAINS, PUNISHABLE BY A
SENTENCE OF THREE YEARS' IMPRISONMENT AND A $5,000 FINE.  ONE NEED NOT
MAKE AN EXHAUSTIVE SURVEY OF STATE LAW TO APPRECIATE THAT THIS IS A
HARSHER PENALTY THAN IS TYPICALLY IMPOSED FOR AN UNARMED ASSAULT ON A
PRIVATE CITIZEN.  IN 1934, FEDERAL LAW ALREADY DEFINED AND PROSCRIBED
ALL VARIETIES OF ASSAULT OCCURRING WITHIN THE ADMIRALTY, MARITIME, AND
TERRITORIAL JURISDICITON OF THE UNITED STATES:  THE PENALTY STRUCTURE
EXTENDED IN GRADED STEPS, TURNING ON THE INTENT AND METHODS OF THE
ASSAILANT, FROM THREE MONTHS' TO 20 YEARS'  IMPRISONMENT.  /12/ IF
CONGRESS HAD INTENDED THE VICTIM-STATUS ELEMENT IN SEC. 254 TO BE
"JURISDICTIONAL ONLY"--TO PROVIDE MERELY ANOTHER JURISDICITONAL BASIS
FOR TRYING ASSAULTS IN THE FEDERAL COURTS--THERE WOULD HAVE BEEN NO
NEED TO APPEND A NEW AND UNIQUE PENALTY PROVISION TO SEC. 254. 
INSTEAD, CONGRESS COULD SIMPLY HAVE MADE CROSS-REFERENCE TO THE PRE
EXISTING PENALTY STRUCTURE FOR ASSAULTS WITHIN FEDERAL JURISDICTION. 
THIS IS NOT IDLE SPECULATION.  IT WAS PRECISELY THE SOLUTION ADOPTED,
IN THE SAME 1934 ACT, FOR THE NEW OFFENSE OF KILLING A FEDERAL OFFICER:
CONGRESS PROVIDED THAT THAT NEW OFFENSE BE DEFINED AND PUNISHED
ACCORDING TO THE PRE-EXISTING, GRADED, PENALTY STRUCTURE FOR HOMICIDES
WITHIN THE MARITIME, ADMIRALTY, AND TERRITORIAL JURISDICITON OF THE
UNITED STATES.  /13/ 

THIS DELIBERATED DIFFERENCE IN DEFINITION AND PENALTY TREATMENT
BETWEEN THE HOMICIDE AND THE ASSAULT STATUTES HAS AN OBVIOUS
SIGNIFICANCE.  CONGRESS GAVE TO THE NEW ASSAULT STATUTE A UNIQUE AND
SUBSTANTIVELY NOVEL DEFINITION AND PENALTY.  UNLESS WE WISH TO ASSUME
THAT CONGRESS WAS SCATTERBRAINED, WE MUST CONCLUDE THAT IT REGARDED THE
VICTIM-STATUS ELEMENT AS OF SUBSTANTIVE--AND NOT MERELY JURISDICTIONAL-
IMPORTANCE.  THAT ELEMENT WAS SEEN AS AN AGGRAVATING CIRCUMSTANCE, JUST
AS IS TRUE IN THE STATE STATUTES, AND NOT MERELY AS A FACTOR GIVING
FEDERAL PROSECUTORS AND JUDGES JURISDICTION TO DEAL WITH THE OFFENSE. 

THE COURT REASONS OTHERWISE.  POSITING THAT THE VICTIM-STATUS
ELEMENT IN THE HOMICIDE STATUTE IS JURISDICITONAL ONLY, THE COURT
CONCLUDES THAT THE SAME MUST BE TRUE OF THE ASSAULT STATUTE.  ANTE, AT
683 - 684.  EVEN ASSUMING THE PREMISE, THE CONCLUSION DOES NOT FOLLOW. 
QUITE APART FROM THE RADICALLY DIFFERENT WAYS IN WHICH THE TWO STATUTES
PROVIDE FOR OFFENSE-DEFINITION AND PENALTIES, IT REQUIRES LITTLE
IMAGINATION TO APPRECIATE HOW CONGRESS COULD REGARD THE VICTIM-STATUS
ELEMENT AS "JURISDICTIONAL ONLY" IN THE HOMICIDE CASE BUT SUBSTANTIVELY
SIGNIFICANT IN THE ASSAULT CASE.  THE COURT ITSELF SUPPLIES A POSSIBLE
REASON: 

"(THE HOMICIDE STATUTE) WAS NOT NEEDED TO FILL A GAP IN

EXISTING SUBSTANTIVE STATE LAW.  THE STATES PROSCRIBED MURDER,

  AND, UNTIL RECENTLY, WITH THE ENACTMENT OF CERTAIN STATUTES IN

  RESPONSE TO THE SUCCESSFUL ATTACK ON CAPITAL PUNISHMENT, MURDER

  OF A PEACE OFFICER HAS NOT BEEN DEEMED AN AGGRAVATED FORM OF

  MURDER, FOR ALL STATES USUALLY AHVE PUNISHED MURDERERS WITH THE

  MOST SEVERE SANCTION THE LAW ALLOWS."  ANTE, AT 683. 

IN OTHER WORDS, THE COURT SUGGESTS THAT THE WIDELY PERCEIVED
DISTINCTION, IN MORALITY AND SOCIAL POLICY, BETWEEN ASSAULTS, DEPENDING
UPON THE ASSAILANT'S KNOWLEDGE OF THE IDENTITY OF THE VICTIM, FOUND
LITTLE OR NO ECHO IN THE LAW OF HOMICIDE.  FROM THIS, THE NATURAL
CONCLUSION--FORTIFIED BY THE PENALTY PROVISIONS--WOULD BE THAT CONGRESS
DISCRIMINATED BETWEEN THE TWO STATUTES, RECOGNIZING THE SUBSTANTIVE
DISTINCTION IN THE ONE AND NOT IN THE OTHER.  FOR REASONS I CANNOT
FATHOM, THE COURT INSTEAD ASSUMES THAT CONGRESS WAS UNABLE TO
DISCRIMINATE IN THIS FASHION--THAT WHAT HAD BEEN SELF-EVIDENT TO STATE
LEGISLATURES WAS BEYOND THE CAPACITY OF THE NATIONAL LEGISLATURE TO
COMPREHEND.  THE COURT SAYS IT CANNOT BELIEVE " CONGRESS SILENTLY CHOSE
TO TREAT ASSAULTS AND HOMICIDES DIFFERENTLY . . . . (WE HAVE BEFORE US
ONE BILL WITH A SINGLE LEGISLATIVE HISTORY, AND WE DECLINE TO BIFURCATE
OUR INTERPRETATION."  ANTE, AT 685 N. 18.  BUT IT WAS CONGRESS ITSELF
THAT "BIFURCATED" THE 1934 STATUTE--BY TREATING HOMICIDES AND ASSAULTS
DIFFERENTLY AS REGARDS PENALTY AND OFFENSE-DEFINITION, AND BY
PROSCRIBING ONLY THOSE ASSAULTS THAT WERE "ON ACCOUNT OF THE
PERFORMANCE OF OFFICIAL DUTIES."  WHAT THE COURT "DECLINES" TO DO IS TO
READ THE STATUTE THAT CONGRESS WROTE. 

WHILE THE LEGISLATIVE HISTORY OF THE 1934 LAW IS "SCANT," LADNER V.
UNITED STATES, 358 U.S., AT 174, IT IS SUFFICIENT TO LOCATE A
CONGRESSIONAL PURPOSE CONSISTENT ONLY WITH IMPLICATION OF A SCIENTER
REQUIREMENT.  AS THE COURT SAID IN LADNER:  "(THE CONGRESSIONAL AIM WAS
TO PREVENT HINDRANCE TO THE EXECUTION OF OFFICIAL DUTY, AND THUS TO
ASSURE THE CARRYING OUT OF FEDERAL PURPOSES AND INTERESTS, AND WAS NOT
TO PROTECT FEDERAL OFFICERS EXCEPT AS INCIDENT TO THAT AIM."  ID., AT
175 - 176.  THIS PURPOSE IS, OF COURSE, EXACTLY ANALOGOUS TO THE
PURPOSES SUPPORTING THE STATE STATUTES WHICH PROVIDE ENHANCED
PUNISHMENT FOR ASSAULT ON STATE OFFICERS.  A STATUTE PROSCRIBING
INTERFERENCE WITH OFFICIAL DUTY DOES NOT "&REVENT HINDRANCE" WITH THAT
DUTY WHERE THE ASSAILANT THINKS HIS VICTIM IS A MERE PRIVATE CITIZEN,
OR INDEED, A CONFEDERATE IN HIS CRIMINAL ACTIVITY. 

TO AVOID THIS SELF-EVIDENT PROPOSITION, THE COURT EFFECTIVELY
OVERRULES LADNER AND CONCLUDES THAT THE ASSAULT STATUTE AIMS AS MUCH AT
PROTECTING INDIVIDUAL OFFICERS AS IT DOES AT PROTECTING THE FUNCTIONS
THEY EXECUTE.  ANTE, AT 677 - 682.  IF THE LADNER COURT HAD SHARED THIS
OPINION, IT WOULD NOT HAVE HELD, AS IT DID, THAT A SINGLE SHOTGUN BLAST
WOUNDING TWO FEDERAL AGENTS WAS TO BE CONSIDERED A SINGLE ASSAULT.  BUT
IN ANY EVENT, EVEN TODAY'S REVISIONIST TREATMENT OF LADNER DOES NOT
SUCCEED IN GETTING THE COURT WHERE IT WANTS TO GO. SO FAR AS THE
SCIENTER REQUIREMENT IS CONCERNED, IT MAKES NO DIFFERENCE WHETHER THE
STATUTE AIMS TO PROTECT INDIVIDUALS, OR FUNCTIONS, OR BOTH.  THE COURT
APPEARS TO THINK THAT EXTENDING SEC. 111 TO UNKNOWING ASSAULTS WILL
DETER SUCH ASSAULTS--WILL "GIVE . . . PROTECTION . . . TO THE AGENT
ACTING UNDER COVER."  ANTE, AT 684.  THIS, OF COURSE, IS NONSENSE.  THE
FEDERAL STATUTE "PROTECTS" AN OFFICER FROM ASSAULT ONLY WHEN THE
ASSAILANT KNOWS THAT THE VICTIM IS AN OFFICER.  ABSENT SUCH KNOWLEDGE,
THE ONLY "PROTECTION" IS THAT PROVIDED BY THE GENERAL LAW OF ASSAULT,
FOR THAT IS THE ONLY LAW WHICH THE POTENTIAL ASSAILANT REASONABLY, IF
ERRONEOUSLY, BELIEVES APPLICABLE IN THE CIRCUMSTANCES. 

THE COURT ALSO SUGGESTS TAHT IMPLICATION OF A SCIENTER REQUIREMENT
"WOULD GIVE INSUFFICIENT PROTECTION TO THE AGENT ENFORCING AN UNPOPULAR
LAW."  THIS IS TO REPEAT THE SAME ERROR.  WHATEVER THE "POPULARITY" OF
THE LAWS HE IS EXECUTING, AND WHATEVER THE CONSTRUCTION PLACED ON SEC.
111, A FEDERAL OFFICER IS "PROTECTED" FROM ASSAULT BY THAT STATUTE ONLY
WHERE THE ASSAILANT HAS SOME INDICATION FROM THE CIRCUMSTANCES THAT HIS
VICTIM IS OTHER THAN A PRIVATE CITIZEN.  ASSUMING, ARGUENDO, THAT
CONGRESS THOUGHT THAT LOCAL PROSECUTORS AND JUDGES WERE INSUFFICIENTLY
ENTHUSIASTIC ABOUT TRYING CASES INVOLVING ASSAULTS ON FEDERAL OFFICERS,
IT REMAINS THE FACT THAT A FEDERAL STATUTE PROSCRIBING KNOWING ASSAULTS
MEETS THIS CONCERN IN EVERY CASE WHERE LOCAL ATTITUDES MIGHT
CONCEIVABLY EMBOLDEN THE POPULACE TO INTERFERE WITH FEDERAL OFFICERS
ENFORCING AN "UNPOPULAR" LAW. 

THE FACT IS THAT THERE IS ABSOLUTELY NO INDICATION THAT BEFORE 1934
LOCAL PROSECUTORS AND JUDGES WERE LAX IN TRYING CASES INVOLVING
ASSAULTS ON FEDERAL OFFICERS, THAT CONGRESS THOUGHT SO, OR--AND THIS IS
THE MAJOR POINT--THAT CONGRESS WAS SO ONSESSED BY THE ESOTERIC
"PROBLEM" OF UNKNOWING ASSAULTS ON OFFICERS WHO, IF KNOWN, WOULD BE
UNPOPULAR, AS TO ENACT A STATUTE SEVERELY AGGRAVATED IN PENALTY BUT
BLIND TO THE COMMONSENSE DISTINCTION BETWEEN KNOWING AND UNKNOWING
ASSAULTS.  THE LIST OF COVERED OFFICERS WAS LONG AND VARIED IN 1934; IT
HAS SINCE BECOME EVEN MORE SO.  /14/ I CAN PERCEIVE NO DESIGN TO SINGLE
OUT OFFICERS CHARGED WITH THE EXECUTION OF "UNPOPULAR" LAWS OR GIVEN TO
USING UNDERCOVER TECHNIQUES.  THE ATTORNEY GENERAL'S LETTER /15/ IN
SUPPORT OF THE 1934 ENACTMENT DISAVOWED ANY CRITICISM OF THE INTEGRITY
OR GOOD FAITH OF LOCAL LAW ENFORCEMENT AUTHORITIES.  HE WAS AT PAINS TO
STRESS THAT THE " FEDERAL GOVERNMENT SHOULD NOT BE COMPELLED TO RELY
UPON THE COURTS OF THE STATES, HOWEVER RESPECTABLE AND WELL DISPOSED .
. . ."  HIS PARTICULAR CONCERN WAS THAT "(IN THESE CASES RESORT MUST
USUALLY BE HAD TO THE LOCAL POLICE COURT, WHICH AFFORDS BUT LITTLE
RELIEF TO US, UNDER THE CIRCUMSTANCES, IN OUR EFFORT TO FURTHER THE
LEGITIMATE PURPOSES OF THE FEDERAL GOVERNMENT."  THIS IS MOST
REASONABLY READ AS A REFERENCE TO THE FACT THAT, ABSENT SOME STATUTE
AGGRAVATING THE OFFENSE, ASSAULT WAS AND IS MERELY A MISDEMEANOR--A
"POLICE COURT"  OFFENSE--IN MANY STATES.  TO DEAL WITH THIS PROBLEM,
THE ATTORNEY GENERAL SOUGHT ENACTMENT OF A FEDERAL AGGRAVATED ASSAULT
STATUTE, CONGRESS OBLIGED, AND THIS COURT SHOULD GIVE THE STATUTE ITS
NATURAL INTERPRETATION. 

TURNING FROM THE HISTORY OF THE STATUTE TO ITS STRUCTURE, THE
PROPRIETY OF IMPLYING A SCIENTER REQUIREMENT BECOMES MANIFEST.  THE
STATUTE PROSCRIBES NOT ONLY ASSAULT BUT ALSO A WHOLE SERIES OF RELATED
ACTS.  IT APPLIES TO ANY PERSON WHO "FORCIBLY ASSAULTS, RESISTS,
OPPOSES, IMPEDES, INTIMIDATES, OR INTERFERES WITH (A FEDERAL OFFICER) .
. . WHILE ENGAGED IN OR ON ACCOUNT OF THE PERFORMANCE OF HIS OFFICIAL
DUTIES."  (EMPHASIS ADDED.)  IT CAN HARDLY BE DENIED THAT THE
EMPHASIZED WORDS IMPLY A SCIENTER REQUIREMENT.  GENERALLY SPEAKING,
THESE ACTS ARE LEGAL AND MORAL WRONGS ONLY IF THE ACTOR KNOWS THAT HIS
"VICTIM" ENJOYS A MORAL OR LEGAL PRIVILEGE TO DETAIN HIM OR ORDER HIM
ABOUT.  THESE ARE TERMS OF ART, ARISING OUT OF THE COMMON AND STATUTORY
LAW PROSCRIBING OBSTRUCTION OF JUSTICE.  /16/ INDEED, IN URGING
ENACTMENT OF SEC. 254, THE ATTORNEY GENERAL REFERRED TO OBSTRUCTION
STATUTES, HAVING EITHER EXPRESS OR IMPLIED SCIENTER REQUIREMENTS, AS AN
INSTRUCTIVE ANALOGUE.  /17/ WHETHER IT BE EXPRESS OR IMPLIED, SCIENTER
HAS ALWAYS BEEN REGARDED IN THIS COUNTRY AS AN ESSENTIAL ELEMENT OF
OBSTRUCTION OF JUSTICE.  PETTIBONE V. UNITED STATES, 148 U.S. 197, 204
207.  THE SOLE INNOVATION IN SEC. 111 IS ITS PROTECTION OF EXECUTIVE
OFFICERS AND FUNCTIONS, RATHER THAN JUDICIAL OFFICERS AND FUNCTIONS. 
OBVIOUSLY THIS DISTINCTION SHOULD HAVE NO EFFECT ON THE SCIENTER
REQUIREMENT. 

IF THE WORDS GROUPED IN THE STATUTE WITH "ASSAULTS" REQUIRE
SCIENTER, IT FOLLOWS THAT SCIENTER IS ALSO REQUIRED FOR AN ASSAULT
CONVICTION.  ONE NEED HARDLY RELY ON SUCH LATIN PHRASES AS EJUSDEM
GENERIS AND NOSCITUR A SOCIIS TO REACH THIS OBVIOUS CONCLUSION.  THE
COURT SUGGESTS THAT ASSAULT MAY BE TREATED DIFFERENTLY, "WITH NO RISK
OF UNFAIRNESS," BECAUSE AN ASSAILANT--UNLIKE ONE WHO MERELY "OPPOSES"
OR "RESISTS"--"KNOWS FROM THE VERY OUTSET THAT HIS PLANNED COURSE OF
CONDUCT IS WRONGFUL" EVEN THOUGH HE "MAY BE SURPRISED TO FIND THAT HIS
INTENDED VICTIM IS A FEDERAL OFFICER IN CIVILIAN APPAREL."  ANTE, AT
685.  THIS ARGUMENT WILL NOT DO, EITHER AS A MATTER OF STATUTORY
CONSTRUCTION OR AS A MATTER OF ELEMENTARY JUSTICE. 

THE COURT IS SAYING THAT BECAUSE ALL ASSAULTS ARE WRONG, IT IS
"FAIR" TO REGARD THEM ALL AS EQUALLY WRONG.  THIS IS A STRANGE THEORY
OF JUSTICE.  AS THE STATES RECOGNIZE, AN UNKNOWING ASSAULT ON AN
OFFICER IS LESS REPREHENSIBLE THAN A KNOWING ASSAULT; TO PROVIDE THAT
THE FORMER MAY BE PUNISHED AS HARSHLY AS THE LATTER IS TO CREATE A VERY
REAL "RISK OF UNFAIRNESS."  IT IS NOT UNPRECEDENTED FOR CONGRESS TO
ENACT STRINGENT LEGISLATION, BUT TODAY IT IS THE COURT THAT REWRITES A
STATUTE SO AS TO CREATE AN INEQUITY WHICH CONGRESS ITSELF HAD NO
INTENTION OF INFLICTING. 

TO TREAT ASSAULTS DIFFERENTLY FROM THE OTHER ACTS ASSOCIATED WITH IT
IN THE STATUTE IS A PURE EXERCISE IN JUDICIAL LEGISLATION.  IN LADNER
V. UNITED STATES, 358 U.S., AT 176, THE COURT NOTED THAT THE "
GOVERNMENT FRANKLY CONCEDED ON THE ORAL ARGUMENT THAT ASSAULT CAN BE
TREATED NO DIFFERENTLY FROM THE OTHER OUTLAWED ACTIVITIES."  THE COURT
CHARACTERIZED THIS CONCESSION AS "NECESSARY IN VIEW OF THE LACK OF ANY
INDICATION THAT ASSAULT WAS TO BE TREATED DIFFERENTLY, AND IN LIGHT OF
18 U.S.C. SEC. 111, THE PRESENT RECODIFICATION OF SEC. 254, WHICH LUMPS
ASSAULT IN WITH THE REST OF THE OFFENSIVE ACTIONS," ID., AT 176 N. 4. 
THIS ANALYSIS WAS NOT MERE DICTUM BUT STRICTLY NECESSARY TO THE RESULT
REACHED IN LADNER.  NO CONTRARY ANALYSIS CAN BE SQUARED WITH THE
STATUTORY HISTORY.  /18/ 

THE IMPLICATION OF SCIENTER HERE IS AS NECESSARY AND PROPER AS IT
WAS IN MORISSETTE V. UNITED STATES, 342 U.S. 246.  THE COURT THERE READ
A SCIENTER REQUIREMENT INTO A FEDERAL LARCENY STATUTE OVER THE
GOVERNMENT'S OBJECTION THAT THE NEED FOR SCIENTER SHOULD NOT BE IMPLIED
FOR A FEDERAL OFFENSE WHEN THE STATUTE THAT CREATED THE OFFENSE WAS
SILENT ON THE SUBJECT.  THE COURT SAID:     " CONGRESSIONAL SILENCE AS
TO MENTAL ELEMENTS IN AN ACT MERELY ADOPTING INTO FEDERAL STATUTORY LAW
A CONCEPT OF CRIME ALREADY SO WELL DEFINED IN COMMON LAW AND STATUTORY
INTERPRETATION BY THE STATES MAY WARRANT QUITE CONTRARY INFERENCES THAN
THE SAME SILENCE IN CREATING AN OFFENSE NEW TO GENERAL LAW, FOR WHOSE
DEFINITION THE COURTS HAVE NO GUIDANCE EXCEPT THE ACT.  . . .,

        * * * * * 

     ". . . (WHERE CONGRESS BORROWS TERMS OF ART IN WHICH ARE

  ACCUMULATED THE LEGAL TRADITION AND MEANING OF CENTURIES OF

  PRACTICE, IT PRESUMABLY KNOWS AND ADOPTS THE CLUSTER OF IDEAS

  THAT WERE ATTACHED TO EACH BORROWED WORD IN THE BODY OF LEARNING

  FROM WHICH IT WAS TAKEN AND THE MEANING ITS USE WILL CONVEY TO

  THE JUDICIAL MIND UNLESS OTHERWISE INSTRUCTED."  ID., AT 262 -

  263. 

THE SAME PRINCIPLE APPLIES HERE.  THE TERMS AND PURPOSES OF SEC. 111
FLOW FROM WELL-DEFINED AND FAMILIAR LAW PROSCRIBING OBSTRUCTIONS OF
JUSTICE, AND THE PROVISION COMPLEMENTS A PATTERN OF STATE AGGRAVATED
ASSAULT STATUTES WHICH ARE UNIFORM AND UNAMBIGUOUS IN REQUIRING
SCIENTER. 

WE SEE TODAY THE UNFORTUNATE CONSEQUENCES OF DECIDING AN IMPORTANT
QUESTION WITHOUT THE BENEFIT OF THE ADVERSARY PROCESS.  /19/ IN THIS
RUSH TO JUDGMENT, SETTLED PRECEDENTS, SUCH AS LADNER V. UNITED STATES,
SUPRA, AND PETTIBONE V. UNITED STATES, SUPRA, ARE SUBVERTED. 
LEGISLATIVE HISTORY IS IGNORED OR IMAGINATIVELY RECONSTRUCTED. 
STATUTORY TERMS ARE BROKEN FROM THEIR CONTEXT AND GIVEN UNNATURAL
READINGS.  ON TOP OF IT ALL, THE COURT DISREGARDS TWO FIRMLY
ESTABLISHED CANONS OF STATUTORY CONSTRUCTION--, "TWO WISE PRINCIPLES
THIS COURT HAS LONG FOLLOWED": 

     " FIRST, AS WE HAVE RECENTLY REAFFIRMED, 'AMBIGUITY CONCERNING

  THE AMBIT OF CRIMINAL STATUTES SHOULD BE RESOLVED IN FAVOR OR

  LENITY.'  REWIS V. UNITED STATES, 401 U.S. 808, 812 (1971).  SEE

  ALSO LADNER V. UNITED STATES, 358 U.S. 169, 177 (1958); BELL V.

  UNITED STATES, 349 U.S. 81 (1955); UNITED STATES V. FIVE GAMBLING

  DEVICES, 346 U.S. 441 (1953) (PLURALITY OPINION FOR

  AFFIRMANCE).  . . .

        * * * * * 

     ". . . (SECOND.  . . .: UNLESS CONGRESS CONVEYS ITS PURPOSE

  CLEARLY, IT WILL NOT BE DEEMED TO HAVE SIGNIFICANTLY CHANGED THE

  FEDERAL-STATE BALANCE.  CONGRESS HAS TRADITIONALLY BEEN RELUCTANT

  TO DEFINE AS A FEDERAL CRIME CONDUCT READILY DENOUNCED AS

  CRIMINAL BY THE STATES.  . . . IN TRADITIONALLY SENSITIVE AREAS,

  SUCH AS LEGISLATION AFFECTING THE FEDERAL BALANCE, THE

  REQUIREMENT OF CLEAR STATEMENT ASSURES THAT THE LEGISLATURE HAS

  IN FACT FACED, AND INTENDED TO BRING INTO ISSUE, THE CRITICAL

  MATTERS INVOLVED IN THE JUDICIAL DECISION."  UNITED STATES V.

BASS, 404 U.S. 336, 347. 

IF THE CONGRESS DESIRES TO SWEEP ALL ASSAULTS UPON FEDERAL EMPLOYEES
INTO THE FEDERAL COURTS, A SUITABLE STATUTE COULD BE EASILY ENACTED.  I
SHOULD HOPE THAT IN SO DOING THE CONGRESS, LIKE EVERY STATE WHICH HAS
DEALT WITH THE MATTER, WOULD MAKE A DISTINCTION IN PENALTY BETWEEN AN
ASSAILANT WHO KNOWS THE OFFICIAL IDENTITY OF THE VICTIM AND ONE WHO
DOES NOT.  THAT RESULT WOULD HAVE A DOUBLE ADVANTAGE OVER THE RESULT
REACHED BY THE COURT TODAY.  IT WOULD BE A FAIR LAW, AND IT WOULD BE
THE PRODUCT OF THE LAWMAKING BRANCH OF OUR GOVERNMENT. 

FOR THE REASONS STATED, I BELIEVE THAT BEFORE THERE CAN BE A
VIOLATION OF 18 U.S.C. SEC. 111, AN ASSAILANT MUST KNOW OR HAVE REASON
TO KNOW THAT THE PERSON HE ASSAULTS IS AN OFFICER.  IT FOLLOWS A
FORTIORI THAT THERE CAN BE NO CRIMINAL CONSPIRACY TO VIOLATE THE
STATUTE IN THE ABSENCE OF AT LEAST EQUIVALENT KNOWLEDGE.  ACCORDINGLY,
I RESPECTFULLY DISSENT FROM THE OPINION AND JUDGMENT OF THE COURT. 

/1/ " WHOEVER FORCIBLY ASSAULTS, RESISTS, OPPOSES, IMPEDES,
INTIMIDATES, OR INTERFERES WITH ANY PERSON DESIGNATED IN SECTION 1114
OF THIS TITLE WHILE ENGAGED IN OR ON ACCOUNT OF THE PERFORMANCE OF HIS
OFFICIAL DUTIES, SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT
MORE THAN THREE YEARS, OR BOTH. 

" WHOEVER, IN THE COMMISSION OF ANY SUCH ACTS USES A DEADLY OR
DANGEROUS WEAPON, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED
NOT MORE THAN TEN YEARS, OR BOTH." 

/2/ THE PETITION SEEKS REVIEW OF A JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT, AFFIRMING A SUBSTANTIVE
CONVICTION UNDER 18 U.S.C. SEC. 111.  UNITED STATES V. FERNANDEZ, 497
F. 2D 730. 

/3/ SEE, E.G., CAL. PENAL CODE SEC. 241, 243, 245 (B) (SUPP. 1975);
D.C. CODE ANN. SEC. 22 - 505 (1973); ILL. REV. STAT., C. 38, SEC. 12 -
2 (A) (6) (1973); MICH. COMP. LAWS SEC. 750.479 (1970); MO. REV. STAT.
SEC. 557.215 (1969); N.J. STAT. ANN. SEC. 2 A:99 - 1 (1969); R.I. GEN.
LAWS ANN. SEC. 11 - 5 - 5 (SUPP. 1974); TEX. PENAL CODE SEC. 22.02
(A)(2) & (B) (1974); WIS. STAT. ANN. SEC. 940.205 (SUPP. 1974 - 1975);
MODEL PENAL CODE SEC. 242.1 (PROPOSED OFFICIAL DRAFT 1962). 

/4/ SEE, E.G., PEOPLE V. BACA, 247 CAL. APP. 2D 487, 55 CAL RPTR. 
681; CELMER V. QUARBERG, 56 WIS. 2D 581, 203 N.W. 2D 45. 

/5/ SEE, E.G., PEOPLE V. GLOVER, 257 CAL. APP 2D 502, 65 CAL. RPTR. 
219; PEOPLE V. LITCH, 4 ILL. APP. 3D 788, 281 N.E. 2D 745; STATE V.
LEWIS, 184 NEB. 111, 165 N.W. 2D 569; FORD V. STATE, 158 TEX. CR. 26,
252 S.W. 2D 948; CELMER V. QUARBERG, SUPRA; MODEL PENAL CODE SEC. 242.1
(PROPOSED OFFICIAL DRAFT 1962). 

/6/ " WHOEVER SHALL FORCIBLY RESIST, OPPOSE, IMPEDE, INTIMIDATE, OR
INTERFERE WITH ANY PERSON DESIGNATED IN SECTION 253 OF THIS TITLE WHILE
ENGAGED IN THE PERFORMANCE OF HIS OFFICIAL DUTIES, OR SHALL BE FINED
NOT MORE THAN $5,000, OR IMPRISONED NOT MORE THAN THREE YEARS, OR BOTH;
AND WHOEVER, IN THE COMMISSION OF ANY OF THE ACTS DESCRIBED IN THIS
THAN $10,000, OR IMPRISONED NOT MORE THAN TEN YEARS, OR BOTH."  ACT OF
MAY 18, 1934, C. 299, SEC. 2, 48 STAT. 781. 

/7/ THE LETTER IS REPRINTED BY THE COURT, ANTE, AT 680 - 681, N. 16. 

/8/ ACT OF MAY 18, 1934, C. 299, SEC. 1, 48 STAT. 780, AS AMENDED,
18 U.S.C. SEC. 1114.  THE ORIGINAL PROVISION READ: 

" WHOEVER SHALL KILL, AS DEFINED IN SECTIONS 452 AND 453 OF THIS
TITLE, ANY UNITED STATES MARSHAL OR DEPUTY UNITED STATES MARSHAL OR
PERSON EMPLOYED TO ASSIST A UNITED STATES MARSHAL OR DEPUTY UNITED
STATES MARSHAL, ANY OFFICER OR EMPLOYEE OF THE FEDERAL BUREAU OF
INVESTIGATION OF THE DEPARTMENT OF JUSTICE, POST-OFFICE INSPECTOR,
SECRET SERVICE OPERATIVE, ANY OFFICER OR ENLISTED MAN OF THE COAST
GUARD, ANY EMPLOYEE OF ANY UNITED STATES PENAL OR CORRECTIONNAL
INSTITUTION, ANY OFFICER, EMPLOYEE, AGENT, OR OTHER PERSON IN THE
SERVICE OF THE CUSTOMS OR OF THE INTERNAL REVENUE, ANY IMMIGRANT
INSPECTOR OR ANY IMMITRATION PATROL INSPECTOR, ANY OFFICER OR EMPLOYEE
OF THE DEPARTMENT OF AGRICULTURE OR OF THE DEPARTMENT OF THE INTERIOR
DESIGNATED BY THE SECRETARY OF AGRICULUTRE OR THE SECRETARY OF THE
INTERIOR TO ENFORCE ANY ACT OF CONGRESS FOR THE PROTECTION,
PRESERVATION, OR RESTORATION OF GAME AND OTHER WILD BIRDS AND ANIMALS,
ANY OFFICER OR EMPLOYEE OF THE NATIONAL PARK SERVICE, ANY OFFICER OR
EMPLOYEE OF, OR ASSIGNED TO DUTY IN, THE FIELD SERVICE OF THE DIVISION
OF GRAZING OF THE DEPARTMENT OF THE INTERIOR, OR ANY OFFICER OR EMPLOYE
OF THE INDIAN FIELD SERVICE OF THE UNITED STATES, WHILE ENGAGED IN THE
PERFORMANCE OF HIS OFFICIAL DUTIES, OR ON ACCOUNT OF THE PERFORMANCE OF
HIS OFFICIAL DUTIES, SHALL BE PUNISHED AS PROVIDED UNDER SECTION 454 OF
THIS TITLE."  18 U.S.C. SEC. 253 (1940 ED.). 

THE LIST OF OFFICERS HAS EXPANDED.  IT NOW INCLUDES, IN 18 U.S.C.
SEC. 1114:  "ANY JUDGE OF THE UNITED STATES, ANY UNITED STATES
ATTORNEY, ANY ASSISTNAT UNITED STATES ATTORNEY, OR ANY UNITED STATES
MARSHAL OR DEPUTY MARSHAL OR PERSON EMPLOYED TO ASSIST SUCH MARSHAL OR
DEPUTY MARSHAL, ANY OFFICER OR EMPLOYEE OF THE FEDERAL BUREAU OF
INVESTIGATION OF THE DEPARTMENT OF JUSTICE, ANY OFFICER OR EMPLOYEE OF
THE POSTAL SERVICE, ANY OFFICER OR EMPLOYEE OF THE SECRET SERVICE OR OF
THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS, ANY OFFICER OR ENLISTED
MAN OF THE COAST GUARD, ANY OFFICER OR EMPLOYEE OF ANY UNITED STATES
PENAL OR CORRECTIONAL INSTITUTION, ANY OFFICER, EMPLOYEE OR AGENT OF
THE CUSTOMS OR OF THE INTERNAL REVENUE OR ANY PERSON ASSISTING HIM IN
THE EXECUTION OF HIS DUTIES, ANY IMMIGRATION OFFICER, ANY OFFICER OR
EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE OR OF THE DEPARTMENT OF THE
INTERIOR DESIGNATED BY THE SECRETARY OF AGRICULTURE OR THE SECRETARY OF
THE INTERIOR TO ENFORCE ANY ACT OF CONGRESS FOR THE PROTECTION,
PRESERVATION, OR RESTORATION OF GAME AND OTHER WILD BIRDS AND ANIMALS,
ANY EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE DESIGNATED BY THE
SECRETARY OF AGRICULTURE TO CARRY OUT ANY LAW OR REGULATION, OR TO
PERFORM ANY FUNCITON IN CONNECTION WITH ANY FEDERAL OR STATE PROGRAM OR
ANY PROGRAM OF PUERTO RICO, GUAM, THE VIRGIN ISLANDS OF THE UNITED
STATES, OR THE DISTRICT OF COLUMBIA, FOR THE CONTROL OR ERADICATION OR
PREVENTION OF THE INTRODUCTION OR DISSEMINATION OF ANIMAL DISEASES, ANY
OFFICER OR EMPLOYEE OF THE NATIONAL PARK SERVICE, ANY OFFICER OR
EMPLOYEE OF, OR ASSIGNED TO DUTY, IN THE FIELD SERVICE OF THE BUREAU OF
LAND MANAGEMENT, ANY EMPLOYEE OF THE BUREAU OF ANIMAL INDUSTRY OF THE
DEPARTMENT OF AGRICULTURE, OR ANY OFFICER OR EMPLOYEE OF THE INDIAN
FIELD SERVICE OF THE UNITED STATES, OR ANY OFFICER OR EMPLOYEE OF THE
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION DIRECTED TO GUARD AND
PROTECT PROPERTY OF THE UNITED STATES UNDER THE ADMINISTRATION AND
CONTROL OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, ANY
SECURITY OFFICER OF THE DEPARTMENT OF STATE OR THE FOREIGN SERVICE, OR
ANY OFFICER OR EMPLOYEE OF THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE OR OF THE DEPARTMENT OF LABOR ASSIGNED TO PERFORM
INVESTIGATIVE, INSPECTION, OR LAW ENFORCEMENT FUNCTIONS." 

/9/ ACT OF JUNE 25, 1948, 62 STAT. 688. 

/10/ SEE THE REVISER'S NOTE, H.R. REP. NO. 304, 80TH CONG., 1ST
SESS., A12 (1947).  THE MINOR PROVISION CONSOLIDATED WITH SEC. 254 WAS
18 U.S.C. SEC. 118 (1940 ED.), DERIVED FROM THE ACT OF MAR. 4, 1909,
SEC. 62, 35 STAT. 1100. 

/11/ THE REVISER'S NOTE, SUPRA, N. 10, OBSERVED THAT THE NEW SEC.
111 ADOPTED THE PENALTY PROVISION OF SEC. 254 "AS THE LATEST EXPRESSION
OF CONGRESSIONAL INTENT." 

/12/ 18 U.S.C. SEC. 455 (1926 ED.), DERIVED FROM THE ACT OF MAR. 4,
1909, SEC. 276, 35 STAT. 1143. 

/13/ SEE N. 8, SUPRA.  THE DEFINITIONS OF, AND PENALITES FOR,
HOMICIDES WITHIN FEDERAL JURISDICTION WERE SET FORTH IN 18 U.S.C. SEC.
452 - 454 (1926 ED.), DERIVED FROM THE ACT OF MAR. 4, 1909, SEC. 273 -
275, 35 STAT. 1143.  THIS WAS THE SAME ACT WHICH ESTABLISHED THE
DEFINITIONS OF, AND GRADED PENALITIES FOR, ASSAULTS WITHIN FEDERAL
JURISDICTION.  SEE N. 11, SUPRA. 

/14/ SEE N. 8, SUPRA. 

/15/ SEE N. 7, SUPRA. 

/16/ COMPARABLE LANGUAGE IS USED IN THE OTHER FEDERAL OBSTRUCTION-OF
JUSTICE STATUTES, E.G., U.S.C. SEC. 1501 - 1505, 1507, 1509, 1752,
2231. 

/17/ TITLE 18 U.S.C. SEC. 245 (1926 ED.), MENTIONED IN THE ATTORNEY
GENERAL'S LETTER, SUPRA, N. 7, HAD AN EXPRESS SCIENTER REQUIREMENT. 
TITLE 18 U.S.C. SEC. 121 (1926 ED.), ALSO MENTIONED, HAD LONG BEEN
JUDICIALLY CONSTRUED TO REQUIRE SCIENTER.  E.G., GAY V. UNITED STATES,
12 F. 2D 433, 434 - 435. 

/18/ AS NOTED EARLIER, THE 1934 VERSION OF THE STATUTE, PROSCRIBED
ASSAULT ON A FEDERAL OFFICER ONLY WHEN PERPETRATED "ON ACCOUNT OF THE
PERFORMANCE OF HIS OFFICIAL DUTIES."  (EMPHASIS ADDED.)  SEE N. 6,
SUPRA.  BY CONTRAST, THE OTHER ACTS IN 18 U.S.C. SEC. 254 (1940 ED.),
WERE PROSCRIBED SO LONG AS THE OFFICER WAS "ENGAGED IN THE PERFORMANCE
OF HIS OFFICIAL DUTIES."  THE MENTAL ELEMENT FOR ASSAULT WAS MORE, NOT
LESS, STRINGENT THAN FOR THE OTHER ACTS.  IN THE 1948 RECODIFICATION,
THIS ASYMMETRY WAS ELIMINATED, TO ALLOW CONSOLIDATION OF THE 1934
STATUTE WITH A MINOR PROVISION ENACTED IN 1909.  NOW EACH OF THE ACTS
IS PROSCRIBED IF COMMITTED UPON AN OFFICER ENGAGED IN PERFORMANCE OF
HIS DUTIES OR IF COMMITTED "ON ACCOUNT" OF HIS PERFORMANCE OF DUTY.  IT
WOULD BE UTTERLY FARFETCHED TO SUGGEST THAT THIS TECHNICAL ALTERATION,
AIMING TOWARD SYNNETRY, WAS INTENDED TO CREATE A DIFFERENCE CONCERNING
THE SCIENTER REQUIREMENT AS BETWEEN ASSAULTS AND THE OTHER ACTS LISTED
WITH IT IN SEC. 111. 

/19/ THE COURT SEEMS TO BE EMBOLDENED BY THE ROUGH CONSENSUS AMONG
THE COURTS OF APPEALS THAT THE VICTIM-STATUS ELEMENT IN SEC. 111 IS
FURISDICITONAL ONLY.  ANTE, AT 677 N. 12.  BUT THIS CONSENSUS IS BOTH
VERY RECENT AND VERY SHAKY.  THE FEDERAL COURTS CONTINUE TO COMPLAIN
THAT THE "SUBSTANTIAL NUMBER OF PROSECUTIONS UNDER THIS STATUTE" HAS
RESULTED IN "DISAGREEMENT IN THE CASES" REGARDING THE SCIENTER
QUESTION.  UNITED STATES V. PERKINS, 488 F. 2D 652, 654; SEE ALSO
UNITED STATES V. CHUNN, 347 F. 2D 717, 721.  THE FACT IS THAT UNTIL
1964, THE FEDERAL COURTS WERE VIRTUALLY UNANIMOUS THE OTHER WAY--THAT
IS, IN HOLDING OR ASSUMING THAT PROOF OF SCIENTER WAS REQUIRED FOR THE
OFFENSE OF OBSTRUCTING OR ASSAULTING A FEDERAL OFFICER.  E.G., HALL V.
UNITED STATES, 235 F. 2D 248; CARTER V. UNITED STATES, 231 F. 2D 232,
CERT. DENIED, 351 U.S. 984; OWENS V. UNITED STATES, 201 F. 2D 749;
HARGETT V. UNITED STATES, 183 F. 2D 859; SPARKS V. UNITED STATES, 90 F.
2D 61; UNITED STATES V. BELL, 219 F. SUPP. 260; UNITED STATES V. PAGE,
277 F. 459; UNITED STATES V. TAYLOR, 57 F. 391; UNITED STATES V.
MILLER, 17 F.R.D. 486.  THE TURNING POINT WAS UNITED STATES V.
LOMBARDOZZI, 335 F. 2D 414, CERT. DENIED, 379 U.S. 914, WHICH
ELIMINATED THE SCIENTER REQUIREMENT ON THE HISTORICALLY ERRONEOUS
GROUND THAT CONGRESS HAD ENACTED THE PROVISION MERELY TO TRANSFER TO
THE FEDERAL COURTS A CLASS OF ASSAULT CASES OUT FROM UNDER THE
UNTRUSTWORTHY STATE COURTS AND PROSECUTORS' OFFICES.  LOMBARDOZZI WAS
PROMPTLY FOLLOWED, WITH LITTLE OR NO FRESH ANALYSIS, IN NEARLY EVERY
CIRCUIT.  JUST AS PROMPTLY, HOWEVER, SECOND THOUGHTS HAVE EMERGED.  THE
NINTH CIRCUIT HAS RECENTLY ACKNOWLEDGED THAT LOMBARDOZZI WAS UNSOUNDLY
PREMISED.  UNITED STATES V. FERNANDEZ, 497 F. 2D, AT 736 - 739.  IN HER
CONCURRING OPINION IN FERNANDEZ, JUDGE HUFSTEDLER STRONGLY ARGUED THE
DESIRABILITY OF RE-EXAMINING THE ENTIRE QUESTION, ID., AT 740 - 747.  A
NUMBER OF COURTS OF APPEALS HAVE FELT CONSTRAINED TO LIMIT LOMBARDOZZI
BY MAKING DISTINCTIONS BETWEEN THE SCIENTER REQUIREMENT FOR ASSAULT AND
FOR THE OTHER ACTS PROSCRIBED BY SEC. 111, DISTINCTIONS DIRECTLY AT
ODDS WITH THE HISTORY OF THE PROVISIONS AND WITH LADNER V. UNITED
STATES, 358 U.S. 169, 176.  SEE, E.G., UNITED STATES V. PERKINS, 488 F.
2D, AT 654 - 655; UNITED STATES V. ULAN, 421 F. 2D 787, 789 - 790;
UNITED STATES V. GOODWIN, 440 F. 2D 1152, 1156; UNITED STATES V. YOUNG,
464 F. 2D 160, 163.  HAVING ACTED HASTILY, THE COURTS OF APPEALS ARE
ONLY NOW APPRECIATING THE NEED FOR RECONSIDERATION.  ACTING WITH EVEN
GREATER HASTE, THE COURT TODAY BIDS FAIR TO INSURE THAT THE ISSUE WILL
BE FOREVER SEALED. 

ALLAN ABBOT TUTTLE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
PETERSEN, AND JEROME M. FEIT. 

GEORGE J. BELLANTONI ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :

















OREGON V. HASS, 420 U.S. 714 


       OREGON V. HASS

        CERTIORARI TO THE SUPREME COURT OF OREGON

        NO. 73 - 1452.  ARGUED JANUARY 21, 1975--DECIDED MARCH 19,

           1975; 267 ORE.  489, 517 P.2D 671, REVERSED. 


 WHEN A SUSPECT IN POLICE CUSTODY HAS BEEN GIVEN AND ACCEPTS THE
FULL WARNINGS PRESCRIBED BY

  MIRANDA V. ARIZONA, 384 U.S. 436, AND LATER STATES THAT HE WOULD
LIKE TO TELEPHONE A LAWYER,

  BUT IS TOLD HE CANNOT DO SO UNTIL REACHING THE STATION, AND HE
THEN PROVIDES INCULPATORY

  INFORMATION, SUCH INFORMATION IS ADMISSIBLE IN EVIDENCE AT THE
SUSPECT'S TRAIL SOLELY FOR

  IMPEACHMENT PURPOSES AFTER HE HAS TAKEN THE STAND AND TESTIFIED
TO THE CONTRARY KNOWING SUCH

  INFORMATION HAD BEEN RULED INADMISSIBLE FOR THE PROSECUTION'S
CASE IN CHIEF.  HARRIS V. NEW

  YORK, 401 U.S. 222.  PP. 720 - 724. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, POWELL, AND REHNQUIST, JJ.,

  JOINED.  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH

  MARSHALL, J., JOINED, POST, P. 724.  MARSHALL, J., FILED A

  DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED, POST, P. 726. 

  DOUGLAS, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE

  CASE. 

MR. JUSTICE BLACKMUN DELIVERED TH OPINION OF THE COURT. 

THIS CASE PRESENTS A VARIATION OF THE FACT SITUATION ENCOUNTERED BY
THE COURT IN HARRIS V. NEW YORK, 401 U.S. 222 (1971):  WHEN A SUSPECT,
WHO IS IN THE CUSTODY OF A STATE POLICE OFFICER, HAS BEEN GIVEN FULL
MIRANDA WARNINGS /1/ AND ACCEPTS THEM, AND THEN LATER STATES THAT HE
WOULD LIKE TO TELEPHONE A LAWYER BUT IS TOLD THAT THIS CANNOT BE DONE
UNTIL THE OFFICER AND THE SUSPECT REACH THE STATION, AND THE SUSPECT
THEN PROVIDES INCULPATORY INFORMATION, IS THAT INFORMATION ADMISSIBLE
IN EVIDENCE SOLELY FOR IMPEACHMENT PURPOSES AFTER THE SUSPECT HAS TAKEN
THE STAND AND TESTIFIED CONTRARILY TO THE INCULPATORY INFORMATION, OR
IS IT INADMISSIBLE UNDER THE FIFTH AND FOURTEENTH AMENDMENTS? 

        I 

THE FACTS ARE NOT IN DISPUTE.  IN AUGUST 1972, BICYCLES WERE TAKEN
FROM TWO RESIDENTIAL GARAGES IN THE MOYINA HEIGHTS AREA OF KLAMATH
FALLS OREGON.  RESPONDENT HASS, IN DUE COURSE, WAS INDICTED FOR
BURGLARY IN THE FIRST DEGREE, IN VIOLATION OF ORE.  REV.  STAT. SEC.
164.225, WITH RESPECT TO THE BICYCLE TAKEN FROM THE GARAGE ATTACHED TO
ONE OF THE RESIDENCES, A HOUSE OCCUPIED BY A FAMILY NAMED LEHAMN.  HE
WAS NOT CHARGED WITH THE OTHER BURGLARY. 

ON THE DAY OF THE THEFTS, OFFICER OSTERHOLME OF THE OREGON STATE
POLICE TRACED AN AUTOMOBILE LICENSE NUMBER TO THE PLACE WHERE HASS
LIVED.  THE OFFICER MET HASS THERE AND PLACED HIM UNDER ARREST.  APP.
15.  AT HASS' TRIAL OSTERHOLME TESTIFIED IN CAMERA THAT, AFTER GIVING
HASS THE WARNINGS PRESCRIBED BY MIRANDA V. ARIZONA, 384 U.S. 436, 467 -
473 (1966), HE ASKED HASS ABOUT THE THEFT OF THE BIVYCLE TAKEN FROM THE
LEHMAN RESIDENCE.  HASS ADMITTED THAT HE HAD TAKEN TWO BICYCLES BUT
STATED THAT HE WAS NOT SURE, AT FIRST, WHICH ONE OSTERHOLME WAS TALKING
ABOUT.  APP. 10.  HE FURTHER SAID THAT HE HAD RETURNED ONE OF THEM AND
THAT THE OTHER WAS WHERE HE HAD LEFT IT.  ID., AT 12.  OSTERHOLME AND
HASS THEN DEPARTED IN A PATROL CAR FOR THE SITE.  ID., AT 12 - 13.  ON
THE WAY HASS OPINED THAT HE "WAS IN A LOT OF TROUBLE," ID., AT 13, 26,
AND WOULD LIKE TO TELEPHONE HIS ATTORNEY.  ID., AT 13.  OSTERHOLME
REPLIED THAT HE COULD TELEPHONE THE LAWYER "AS SOON AS WE GOT TO THE
OFFICE."  IBID.  THEREAFTER, RESPONDENT POINTED OUT A PLACE IN THE
BRUSH WHERE THE BICYCLE WAS FOUND. 

THE COURT RULED THAT STATEMENTS MADE BY HASS AFTER HE SAID HE WANTED
TO SEE AN ATTORNEY, AND HIS IDENTIFICATION OF THE BICYCLE'S LOCATION,
WERE NOT ADMISSIBLE.  THE PROSECUTION THEN ELICITED FROM OSTERHOLME, IN
ITS CASE IN CHIEF BEFORE THE JURY, THAT HASS HAD ADMITTED TO THE
WITNESS THAT HE HAD TAKEN TWO BICYCLES THAT DAY BECAUSE HE NEEDED
MONEY, THAT HE HAD GIVEN ONE BACK, AND THAT THE OTHER HAD BEEN
RECOVERED.  ID., AT 31 - 32. 

LATER IN THE TRIAL HASS TOOK THE STAND.  HE TESTIFIED THAT HE AND
TWO FRIENDS, WALKER AND LEE, WERE "JUST RIDING AROUND" IN HIS
VOLKSWAGEN TRUCK, ID., AT 42; THAT THE OTHER TWO GOT OUT AND RESPONDENT
DROVE SLOWLY DOWN THE STREET; THAT LEE SUDDENLY REAPPEARED, TOSSED A
BICYCLE INTO THE TRUCK, AND "DUCKED DOWN" ON THE FLOOR OF THE VEHICLE,
ID., AT 44; THAT RESPONDENT DID NOT KNOW THAT LEE "STOLE IT AT FIRST,"
ID., AT 45; THAT IT WAS HIS OWN INTENTION TO GET RID OF THE BIKE; THAT
THEY WERE OVERTAKEN BY A JEEP OCCUPIED BY MR. LEHMAN AND HIS SON; THAT
THE SON POINTED LEE OUT AS "THAT'S THE GUY," ID., AT 46; THAT LEE THEN
RETURNED THE BIKE TO THE LEHMANS; THAT RESPONDENT DROVE ON AND CAME
UPON WALKER "SITTING DOWN THERE AND HE HAD THIS OTHER BICYCLE BY HIM,"
AND THREW IT INTO THE TRUCK, ID., AT 48; THAT HE, RESPONDENT, WENT "OUT
BY WASHBURN WAY AND I THREW IT AS FAR AS I COULD," /2/ IBID.; THAT
LATER HE TOLD POLICE HE HAD STOLEN TWO BICYCLES, ID., AT 49; THAT HE
HAD HAD NO IDEA WHAT LEE AND WALKER WERE GOING TO DO, ID., AT 61; AND
THAT HE DID NOT SEE ANY OF THE BIKES BEING TAKEN AND DID NOT KNOW
"WHERE THOSE RESIDENCES WERE LOCATED,"  ID., AT 63. 

THE PROSECUTION THEN RECALLED OFFICER OSTERHOLME IN REBUTTAL.  HE
TESTIFIED THAT HASS HAD POINTED OUT THE TWO HOUSES FROM WHICH THE
BICYCLES WERE TAKEN.  ID., AT 65.  ON CROSS-EXAMINATION, THE OFFICER
TESTIFIED THAT, PRIOR TO SO DOING, HASS HAD TOLD OSTERHOLME "THAT HE
KNEW WHERE THE BICYCLES CAME FROM, HOWEVER, HE DIDN'T KNOW THE EXACT
STREET ADDRESS."  ID., AT 66.  OSTERHOLME ALSO STATED THAT LEE WAS
ALONG AT THE TIME BUT THAT LEE "HAD SOME DIFFCULTY" IN IDENTIFYING THE
RESIDENCES "UNTIL MR. HASS ACTUALLY POINTED THEM" AND THEN "HE
RECOGNIZED IT."  ID., AT 78. 

THE TRIAL COURT, AT THE REQUEST OF THE DEFENSE, THEN ADVISED THE
JURY THAT THE PORTION OF OFFICER OSTERHOLME'S TESTIMONY DESCRIBING THE
STATEMENT MADE BY HASS TO HIM "MAY NOT BE USED BY YOU AS PROOF OF THE
DEFENDANT'S GUILT . . . BUT YOU MAY CONSIDER THAT TESTIMONY ONLY AS IT
BEARS ON THE (CREDIBILITY) OF THE DEFENDANT AS A WITNESS WHEN HE
TESTIFIED ON THE WITNESS STAND."  ID., AT 79. 

RESPONDENT AGAIN TOOK THE STAND AND SAID THAT OSTERHOLME'S TESTIMONY
THAT HE TOOK HIM OUT TO THE RESIDENCES AND THAT RESPONDENT POINTED OUT
THE HOUSES WAS "WRONG."  ID., AT 81. 

THE JURY RETURNED A VERDICT OF GUILTY.  HASS RECEIVED A SENTENCE OF
TWO YEARS' PROBATION AND A $250 FINE.  THE OREGON COURT OF APPEALS,
FEELING ITSELF BOUND BY THE EARLIER OREGON DECISION IN STATE V.
BREWTON, 247 ORE.  241, 422 P. 2D 581, CERT. DENIED, 387 U.S. 943
(1967), A PRE-HARRIS CASE, REVERSED ON THE GROUND THAT HASS' STATEMENTS
WERE IMPROPERLY USED TO IMPEACH HIS TESTIMONY.  13 ORE.  APP.  368,
374, 510 P. 2D 852, 855 (1973).  ON PETITION FOR REVIEW, THE SUPREME
COURT OF OREGON, BY A 4-TO-3 VOTE, AFFIRMED.  267 ORE.  489, 517 P. 2D
671 (1973).  THE COURT REASONED THAT IN A SITUATION OF PROPER MIRANDA
WARNINGS, AS HERE, THE POLICE HAVE NOTHING TO LOSE, AND PERHAPS COULD
GAIN SOMETHING, FOR IMPEACHMENT PURPOSES, BY CONTINUING THEIR
INTERROGATION AFTER THE WARNINGS; THUS, THERE IS NO DETERRENCE.  IN
CONTRAST, THE COURT SAID, WHERE WARNINGS ARE YET TO BE GIVEN, THERE IS
AN ELEMENT OF DETERRENCE, FOR THE POLICE "WILL NOT TAKE THE CHANCE OF
LOSING INCRIMINATING EVIDENCE FOR THEIR CASE IN CHIEF BY NOT GIVING
ADEQUATE WARNINGS."  267 ORE., AT 492, 517 P. 2D, AT 673.  THE THREE
DISSENTERS PERCEIVED NO DIFFERENCE BETWEEN THE TWO SITUATIONS.  267
ORE., AT 493 - 495, 517 P. 2D, AT 674.  BECAUSE THE RESULT WAS IN
CONFLICT WITH THAT REACHED BY THE NORTH CAROLINA COURT IN STATE V.
BRYANT, 280 N.C. 551, 554 - 556, 187 S.E. 2D 111, 113 - 114 (1972), /3/
AND BECAUSE IT BORE UPON THE REACH OF OUR DECISION IN HARRIS V. NEW
YORK, 401 U.S. 222, WE GRANTED CERTIORARI.  419 U.S. 823 (1974).  WE
REVERSE. 

        II 

THE RESPONDENT RAISES SOME PRELIMINARY ARGUMENTS.  WE MENTION THEM
IN PASSING: 

1.  HASS SUGGESTS TAHT "WHEN STATE LAW IS MORE RESTRICTIVE AGAINST
THE PROSECUTION THAN FEDERAL LAW," THIS COURT HAS NO POWER "TO COMPEL A
STATE TO CONFORM TO FEDERAL LAW."  BRIEF FOR RESPONDENT 1.  THIS,
APPARENTLY, IS PROFFERED AS A REFERENCE TO OUR EXPRESSION THAT A STATE
IS FREE AS A MATTER OF ITS OWN LAW TO IMPOSE GREATER RESTRICTIONS ON
POLICE ACTIVITY THAN THOSE THIS COURT HOLDS TO BE NECESSARY UPON
FEDERAL CONSTITUTIONAL STANDARDS.  SEE, E.G., COOPER V. CALIFORNIA, 386
U.S. 58, 62 (1967); SIBRON V. NEW YORK, 392 U.S. 40, 60 - 61 (1968). 
SEE ALSO STATE V. KALUNA, 55 HAW.  361, 368 - 369, 520 P. 2D 51, 58 -
59 (1974).  BUT, OF COURSE, A STATE MAY NOT IMPOSE SUCH GREATER
RESTRICTIONS AS A MATTER OF FEDERAL CONSTITUTIONAL LAW WHEN THIS COURT
SPECIFICALLY REFRAINS FROM IMPOSING THEM.  /4/ SEE SMAYDA V. UNITED
STATES, 352 F. 2D 251, 253 (CA9 1965), CERT. DENIED, 382 U.S. 981
(1966); AFTANASE V. ECONOMY BALER CO., 343 F. 2D 187, 193 (CA8 1965). 

ALTHOUGH OREGON HAS A CONSTITUTIONAL PROVISION AGAINST COMPULSORY
SELF-INCRIMINATION IN ANY CRIMINAL PROSECUTION, ORE.  CONST., ART. 1,
SEC. 12, THE PRESENT CASE WAS DECIDED BY THE OREGON COURTS ON FIFTH AND
FOURTEENTH AMENDMENT GROUNDS.  THE DECISION DID NOT REST ON THE OREGON
CONSTITUTION OR STATE LAW; NEITHER WAS CITED.  THE FACT THAT THE OREGON
COURTS FOUND IT NECESSARY TO ATTEMPT TO DISTINGUISH HARRIS V. NEW YORK,
SUPRA, REVEALS THE FEDERAL BASIS. 

2.  HASS SUGGESTS THAT A DECISION BY A STATE'S HIGHEST COURT IN
FAVOR OF A CRIMINAL DEFENDANT IS NOT REVIEWABLE HERE.  THIS, WE ASSUME,
IS A STANDING ARGUMENT ADVANCED ON THE THEORY THAT THE STATE IS NOT
AGGRIEVED BY THE OREGON JUDGMENT.  SURELY, A HOLDING THAT, FOR
CONSTITUTIONAL REASONS, THE PROSECUTION MAY NOT UTILIZE OTHERWISE
RELVANT EVIDENCE MAKES THE STATE AN AGGRIEVED PARTY FOR PURPOSES OF
REVIEW.  THIS SHOULD BE SELF-EVIDENT, BUT CASES SUCH AS CALIFORNIA V.
GREEN, 399 U.S. 149 (1970), MANIFEST ITS VALIDITY. 

3.  STATE V. BREWTON, 247 ORE.  241, 422 P. 2D 581, BY WHICH THE
OREGON COURT OF APPEALS IN THE PRESENT CASE FELT ITSELF BOUND, MERITS
COMMENT.  THERE THE OREGON COURT, AGAIN BY A 4-TO-3 VOTE, HELD THAT
STATEMENTS, ELICITED FROM A MURDER DEFENDANT, THAT WERE INADMISSIBLE IN
THE STATE'S CASE IN CHIEF BECAUSE THEY HAD NOT BEEN PRECEDED BY
ADEQUATE WARNINGS, COULD NOT BE USED TO IMPEACH THE DEFENDANT'S OWN
TESTIMONY EVEN THOUGH THE STATEMENTS HAD BEEN VOLUNTARILY MADE. 

IN THE PRESENT CASE THE SUPREME COURT OF OREGON STATED THAT IT TOOK
REVIEW "FOR THE PURPOSE OF DECIDING WHETHER WE WISHED TO OVERRULE
BREWTON," 267 ORE., AT 492, 517 P. 2D, AT 673.  IT FOUND IT "NOT
NECESSARY TO MAKE THAT DETERMINATION" BECAUSE, IN THE MAJORITY VIEW,
BREWTON AND HARRIS WERE DISTINGUISHABLE.  IBID.  AS SET FORTH BELOW, WE
ARE UNABLE SO TO DISTINGUISH THE TWO CASES.  FURTHERMORE, BREWTON IS
PRE-HARRIS. 

        III 

THIS TAKES US TO THE REAL ISSUE, NAMELY, THAT OF THE BEARING OF
HARRIS V. NEW YORK UPON THIS CASE. 

IN HARRIS, THE DEFENDANT WAS CHARGED BY THE STATE IN A TWO-COUNT
INDICTMENT WITH TWICE SELLING HEROIN TO AN UNDERCOVER POLICE OFFICER. 
THE PROSECUTION INTRODUCED EVIDENCE OF THE TWO SALES.  HARRIS TOOK THE
STAND IN HIS OWN DEFENSE.  HE DENIED THE FIRST SALE AND DESCRIBED THE
SECOND AS ONE OF BAKING POWDER UTILIZED AS PART OF A SCHEME TO DEFRAUD
THE PURCHASER.  ON CROSS-EXAMINATION, HARRIS WAS ASKED WHETHER HE HAD
MADE SPECIFIED STATEMENTS TO THE POLICE IMMEDIATELY FOLLOWING HIS
ARREST; THE STATEMENTS PARTIALLY CONTRADICTED HARRIS' TESTIMONY.  IN
RESPONSE, HARRIS TESTIFIED THAT HE COULD NOT REMEMBER THE QUESTIONS OR
ANSWERS RECITED BY THE PROSECUTOR.  THE TRIAL COURT INSTRUCTED THE JURY
THAT THE STATEMENTS ATTRIBUTED TO HARRIS COULD BE USED ONLY IN PASSING
ON HIS CREDIBILITY AND NOT AS EVIDENCE OF GUILT.  THE JURY RETURNED A
VERDICT OF GUILTY ON THE SECOND COUNT OF THE INDICTMENT. 

THE PROSECUTION HAD NOT SOUGHT TO USE THE STATEMENTS IN ITS CASE IN
CHIEF, FOR IT CONCEDED THAT THEY WERE INADMISSIBLE UNDER MIRANDA
BECAUSE HARRIS HAD NOT BEEN ADVISED OF HIS RIGHT TO APPOINTED COUNSEL. 
THE CHIEF JUSTICE, SPEAKING FOR THE COURT, OBSERVED, 401 U.S., AT 224:
" IT DOES NOT FOLLOW FROM MIRANDA THAT EVIDENCE INADMISSIBLE AGAINST AN
ACCUSED IN THE PROSECUTION'S CASE IN CHIEF IS BARRED FOR ALL PURPOSES,
PROVIDED OF COURSE THAT THE TRUSTWORTHINESS OF THE EVIDENCE SATISFIES
LEGAL STANDARDS."  RELYING ON WALDER V. UNITED STATES, 347 U.S. 62
(1954), A FOURTH AMENDMENT CASE, WE RULED THAT THERE WAS NO "DIFFERENCE
IN PRINCIPLE" BETWEEN WALDER AND HARRIS; THAT THE "IMPEACHMENT PROCESS
HERE UNDOUBTEDLY PROVIDED VALUABLE AID TO THE JURY IN ASSESSING
PETITIONER'S CREDIBILITY"; THAT THE "BENEFITS OF THIS PROCESS SHOULD
NOT BE LOST"; THAT, "(ASSUMING THAT THE EXCLUSIONARY RULE HAS A
DETERRENT EFFECT ON PROSCRIBED POLICE CONDUCT, SUFFICIENT DETERRENCE
FLOWS WHEN THE EVIDENCE IN QUESTION IS MADE UNAVAILABLE TO THE
PROSECUTION IN ITS CASE IN CHIEF," 401 U.S., AT 225, AND THAT THE
"SHIELD PROVIDED BY MIRRANDA CANNOT BE PERVERTED INTO A LICENSE TO USE
PERJURY BY WAY OF A DEFENSE, FREE FROM THE RISK OF CONFRONTATION WITH
PRIOR INCONSISTENT UTTERANCES."  ID., AT 226.  IT WAS HELD,
ACCORDINGLY, THAT HARRIS' CREDIBILITY WAS APPROPRIATELY IMPEACHED BY
THE USE OF HIS EARLIER CONFLICTING STATEMENTS. 

WE SEE NO VALID DISTINCTION TO BE MADE IN THE APPLICATION OF THE
PRINCIPLES OF HARRIS TO THAT CASE AND TO HASS' CASE.  HASS' STATEMENTS
WERE MADE AFTER THE DEFENDANT KNEW OSTERHOLME'S OPPOSING TESTIMONY HAD
BEEN RULED INADMISSIBLE FOR THE PROSECUTION'S CASE IN CHIEF. 

AS IN HARRIS, IT DOES NOT FOLLOW FROM MIRANDA THAT EVIDENCE
INADMISSIBLE AGAINST HASS IN THE PROSECUTION'S CASE IN CHIEF IS BARRED
FOR ALL PURPOSES, ALWAYS PROVIDED THAT "THE TRUSTWORTHINESS OF THE
EVIDENCE SATISFIES LEGAL STANDARDS."  401 U.S., AT 224.  AGAIN, THE
IMPEACHING MATERIAL WOULD PROVIDE VALUABLE AID TO THE JURY IN ASSESSING
THE DEFENDANT'S CREDIBILITY; AGAIN, "THE BENEFITS OF THIS PROCESS
SHOULD NOT BE LOST," ID., AT 225; AND, AGAIN, MAKING THE DETERRENT
EFFECT ASSUMPTION, THERE IS SUFFICIENT DETERRENCE WHEN THE EVIDENCE IN
QUESTION IS MADE UNAVAILABLE TO THE PROSECUTION IN ITS CASE IN CHIEF. 
IF ALL THIS SUFFICED FOR THE RESULT IN HARRIS, IT SUPPORTS AND DEMANDS
A LIKE RESULT IN HASS' CASE.  HERE, TOO, THE SHIELD PROVIDED BY MIRANDA
IS NOT TO BE PERVERTED TO A LICENSE TO TESTIFY INCONSISTENTLY, OR EVEN
PERJURIOUSLY, FREE FROM THE RISK OF CONFRONTATION WITH PRIOR
INCONSISTENT UTTERANCES.     WE ARE, AFTER ALL, ALWAYS ENGAGED IN A
SEARCH FOR TRUTH IN A CRIMINAL CASE SO LONG AS THE SEARCH IS SURROUNDED
WITH THE SAFEGUARDS PROVIDED BY OUR CONSTITUTION.  THERE IS NO EVIDENCE
OR SUGGESTION THAT HASS' STATEMENTS TO OFFICER OSTERHOLME ON THE WAY TO
MOYINA HEIGHTS WERE INVOLUNTARY OR COERCED.  HE PROPERLY SENSED, TO BE
SURE, THAT HE WAS IN "TROUBLE"; BUT THE PRESSURE ON HIM WAS NO GREATER
THAN THAT ON ANY PERSON IN LIKE CUSTODY OR UNDER INQUIRY BY ANY
INVESTIGATING OFFICER. 

THE ONLY POSSIBLE FACTUAL DISTINCTION BETWEEN HARRIS AND THIS CASE
LIES IN THE FACT THAT THE MIRANDA WARNINGS GIVEN HASS WERE PROPER,
WHEREAS THOSE GIVEN HARRIS WERE DEFECTIVE.  THE DETERRENCE OF THE
EXCLUSIONARY RULE, OF COURSE, LIES IN THE NECESSITY TO GIVE THE
WARNINGS.  THAT THESE WARNINGS, IN A GIVEN CASE, MAY PROVE TO BE
INCOMPLETE, AND THEREFORE DEFECTIVE, AS IN HARRIS, DOES NOT MEAN THAT
THEY HAVE NOT SERVED AS A DETERRENT TO THE OFFICER WHO IS NOT THEN
AWARE OF THEIR DEFECT; AND TO THE OFFICER WHO IS AWARE OF THE DEFECT
THE FULL DETERRENCE REMAINS.  THE EFFECT OF INADMISSIBILITY IN THE
HARRIS CASE AND IN THIS CASE IS THE SAME:  INADMISSIBILITY WOULD
PERVERT THE CONSTITUTIONAL RIGHT INTO A RIGHT TO FALSIFY FREE FROM THE
EMBARRASSMENT OF IMPEACHMENT EVIDENCE FROM THE DEFENDANT'S OWN MOUTH. 

ONE MIGHT CONCEDE THAT WHEN PROPER MIRANDA WARNINGS HAVE BEEN GIVEN,
AND THE OFFICER THEN CONTINUES HIS INTERROGATION AFTER THE SUSPECT ASKS
FOR AN ATTORNEY, THE OFFICER MAY BE SAID TO HAVE LITTLE TO LSOE AND
PERHAPS SOMETHING TO GAIN BY WAY OF POSSIBLY UNCOVERING IMPEACHMENT
MATERIAL.  THIS SPECULATIVE POSSIBILITY, HOWEVER, IS EVEN GREATER WHERE
THE WARNINGS ARE DEFECTIVE AND THE DEFECT IS NOT KNOWN TO THE OFFICER. 
IN ANY EVENT, THE BALANCE WAS STRUCK IN HARRIS, AND WE ARE NOT DISPOSED
TO CHANGE IT NOW.  IF, IN A GIVEN CASE, THE OFFICER'S CONDUCT AMOUNTS
TO ABUSE, THAT CASE, LIKE THOSE INVOLVING COERCION OR DURESS, MAY BE
TAKEN CARE OF WHEN IT ARISES MEASURED BY THE TRADITIONAL STANDARDS FOR
EVALUATING VOLUNTARINESS AND TRUSTWORTHINESS. 

WE THEREFORE HOLD THAT THE OREGON APPELLATE COURTS WERE IN ERROR
WHEN THEY RULED THAT OFFICER OSTERHOLME'S TESTIMONY ON REBUTTAL WAS
INADMISSIBLE ON FIFTH AND FOURTEENTH AMENDMENT GROUNDS FOR PURPOSES OF
HASS' IMPEACHMENT.  THE JUDGMENT OF THE SUPREME COURT OF OREGON IS
REVERSED. 

                                  IT IS SO ORDERED. 

/1/ MIRANDA V. ARIZONA, 384 U.S. 436, 467 - 473 (1966). 

/2/ HASS' TESTIMONY WOULD APPEAR TO BE AN ADMISSION OF GUILT OF THE
OREGON CRIME OF "THEFT BY RECEIVING," ORE.  REV.  STAT. SEC. 164.095,
THAT IS, THE RECEIPT OR DISPOSAL OF PROPERTY OF ANOTHER, KNOWING THAT
THE PROPERTY WAS STOLEN.  HASS, HOWEVER, WAS NOT CHARGED WITH THAT
OFFENSE. 

/3/ SEE ALSO UNITED STATES EX REL. WRIGHT V. LA VALLEE, 471 F. 2D
123, 125 (CA2 1972), CERT. DENIED, 414 U.S. 867 (1973); UNITED STATES
EX REL. PAGETT V. RUSSELL, 332 F. SUPP. 41 (ED PA. 1971); STATE V.
JOHNSON, 109 ARIZ. 70, 505 P. 2D 241 (1973); ROOKS V. STATE, 250 ARK.
561, 466 S. W. 2D 478 (1971); PEOPLE V. NUDD, 12 CAL. 3D 204, 524 P. 2D
844 (1974), CERT. PENDING, NO. 74 - 5472; JORGENSON V. PEOPLE, 174
COLO. 144, 482 P. 2D 962 (1971); WILLIAMS V. STATE, -- DEL. --, 301 A.
2D 88 (1973); STATE V. RETHERFORD, 270 SO. 2D 363 (FLA. 1972), CERT.
DENIED, 412 U.S. 953 (1973); CAMPBELL V. STATE, 231 GA. 69, 200 S.E. 2D
690 (1973); PEOPLE V. MOORE, 54 ILL. 2D 33, 294 N.E. 2D 297, CERT.
DENIED, 412 U.S. 943 (1973); DAVIS V. STATE, 257 IND. 46, 271 N.E. 2D
893 (1971); SABATINI V. STATE, 14 MD. APP. 431, 287 A. 2D 511 (1972);
COMMONWEALTH V. HARRIS, -- MASS. --, 303 N.E. 2D 115 (1973); STATE V.
KISH, 28 UTAH 2D 430, 503 P. 2D 1208 (1972); RIDDELL V. RHAY, 79 WASH.
2D 248, 484 P. 2D 907, CERT. DENIED, 404 U.S. 974 (1971); AMEEN V.
STATE, 51 WIS. 2D 175, 186 N.W. 2D 206 (1971).  CF.  COMMONWEALTH V.
HORNER, 453 PA. 435, 441, 309 A. 2D 552, 555 (1973). 

/4/ THE RESPONDENT WOULD TAKE COMFORT IN THE FOLLOWING PRONUNCEMENT
OF THE SUPREME COURT OF OREGON IN STATE V. -- ORE.  --, --, 527 P. 2D
1202, 1208 (1974), A SEARCH AND SEIZURE CASE: 

" IF WE CHOOSE WE CAN CONTINUE TO APPLY THIS INTERPRETATOIN.  WE CAN
DO SO BY INTERPRETING ARTICLE 1, SEC. 9, OF THE OREGON CONSTITUTIONAL
PROHIBITION OF UNREASONABLE SEARCHES AND SEIZURES AS BEING MORE
RESTRICTIVE THAN THE FOURTH AMENDMENT OF THE FEDERAL CONSTITUTION.  OR
WE CAN INTERPRET THE FOURTH AMENDMENT MORE RESTRICTIVELY THAN
INTERPRETED BY THE UNITED STATES SUPREME COURT"  (FOOTNOTE OMITTED). 
THE SECOND SENTENCE OF THIS QUOTED EXCERPT IS, OF COURSE, GOOD LAW. 
THE LAST SENTENCE, UNSUPPORTED BY ANY CITED AUTHORITY, IS NOT THE LAW
AND SURELY MUST BE AN INADVERTENT ERROR; IN ANY EVENT, WE REJECT IT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

IN HARRIS V. NEW YORK, 401 U.S. 222 (1971), PETITIONER WAS NOT
INFORMED OF HIS RIGHT TO APPOINTED COUNSEL AND THUS HIS SUBSEQUENT
STATEMENTS TO POLICE WERE INADMISSIBLE UNDER MIRANDA V. ARIZONA, 384
U.S. 436 (1966).  THE COURT NONETHELESS PERMITTED THE USE OF THOSE
STATEMENTS TO IMPEACH PETITIONER'S TRAIL TESTIMONY.  THE COURT TODAY
EXTENDS HARRIS TO A CASE WHERE THE ACCUSED WAS TOLD OF HIS RIGHTS AND
ASKED FOR A LAWYER, YET POLICE QUESTIONING CONTINUED IN VIOLATION OF
MIRANDA.  THE STATEMENTS THAT RESULTED ARE AGAIN HELD ADMISSIBLE FOR
IMPEACHMENT PURPOSES. 

I ADHERE TO MY DISSENT IN HARRIS IN WHICH I STATED THAT MIRANDA
"COMPLETELY DISPOSES OF ANY DISTINCTION BETWEEN STATEMENTS USED ON
DIRECT AS OPPOSED TO CROSS-EXAMINATION.  ' AN INCRIMINATING STATEMENT
IS AS INCRIMINATING WHEN USED TO IMPEACH CREDIBILITY AS IT IS WHEN USED
AS DIRECT PROOF OF GUILT AND NO CONSTITUTIONAL DISTINCTION CAN
LEGITIMATELY BE DRAWN.'"  HARRIS, SUPRA, AT 231.  I ADHERE AS WELL TO
THE VIEW THAT THE JUDICIARY MUST "AVOID EVEN THE SLIGHTEST APPEARANCE
OF SANCTIONING ILLEGAL GOVERNMENT CONDUCT."  UNITED STATES V. CALANDRA,
414 U.S. 338, 360 (1974) (BRENNAN, J., DISSENTING).  "(IT IS MONSTROUS
THAT COURTS SHOULD AID OR ABET THE LAW-BREAKING POLICE OFFICER.  IT IS
ABIDING TRUTH THAT '(NOTHING CAN DESTROY A GOVERNMENT MORE QUICKLY THAN
ITS FAILURE TO OBSERVE ITS OWN LAWS, OR WORSE, ITS DISREGARD OF THE
CHARTER OF ITS OWN EXISTENCE.'"  HARRIS, SUPRA, AT 232 (BRENNAN, J.,
DISSENTING). 

THE COURT'S DECISION TODAY GOES BEYOND HARRIS IN UNDERMINING
MIRANDA.  EVEN AFTER HARRIS, POLICE HAD SOME INCENTIVE FOR FOLLOWING
MIRANDA BY WARNING AN ACCUSED OF HIS RIGHT TO REMAIN SILENT AND HIS
RIGHT TO COUNSEL.  IF THE WARNINGS WERE GIVEN, THE ACCUSED MIGHT STILL
MAKE A STATEMENT WHICH COULD BE USED IN THE PROSECUTION'S CASE IN
CHIEF.  UNDER TODAY'S HOLDING, HOWEVER, ONCE THE WARNINGS ARE GIVEN,
POLICE HAVE ALMOST NO INCENTIVE FOR FOLLOWING MIRANDA'S REQUIREMENT
THAT "(IF THE INDIVIDUAL STATES THAT HE WANTS AN ATTORNEY, THE
INTERROGATION MUST CEASE UNTIL AN ATTORNEY IS PRESENT."  MIRANDA,
SUPRA, AT 474.  IF THE REQUIREMENT IS FOLLOWED THERE WILL ALMOST SURELY
BE NO STATEMENT SINCE THE ATTORNEY WILL ADVISE THE ACCUSED TO REMAIN
SILENT.  /1/ IF, HOWEVER, THE REQUIREMENT IS DISOBEYED, THE POLICE MAY
OBTAIN A STATEMENT WHICH CAN BE USED FOR IMPEACHMENT IF THE ACCUSED HAS
THE TEMERITY TO TESTIFY IN HIS OWN DEFENSE.  /2/ THUS, AFTER TODAY'S
DECISION, IF AN INDIVIDUAL STATES THAT HE WANTS AN ATTORNEY, POLICE
INTERROGATION WILL DOUBTLESS BE VIGOROUSLY PRESSED TO OBTAIN STATEMENTS
BEFORE THE ATTORNEY ARRIVES.  I AM UNWILLING TO JOIN THIS FUNDAMENTAL
EROSION OF FIFTH AND SIXTH AMENDMENT RIGHTS AND THEREFORE DISSENT.  I
WOULD AFFIRM OR, AT LEAST, REMAND FOR FURTHER PROCEEDINGS FOR THE
REASONS GIVEN IN MR. JUSTICE MARSHALL'S DISSENTING OPINION. 

/10/ SEE E.G., WATTS V. INDIANA, 338 U.S. 49, 59 (1949) (JACKSON,
J., CONCURRING IN RESULT) ("ANY LAWYER WORTH HIS SALT WILL TELL THE
SUSPECT IN NO UNCERTAIN TERMS TO MAKE NO STATEMENT TO POLICE UNDER ANY
CIRCUMSTANCES").  SEE ALSO COMMENT, 80 YALE L. J. 1198, 1220 (1971)
("(THE POLICE) REALIZE THAT AS SOON AS A LAWYER ARRIVES THERE IS LITTLE
CHANCE THAT ANY FURTHER QUESTIONING WILL BE PERMITTED"). 

/2/ AS I POINTED OUT IN HARRIS V. NEW YORK, 401 U.S. 222 (1971),
"THE ACCUSED IS DENIED AN 'UNFETTERED' CHOICE WHEN THE DECISION WHETHER
TO TAKE THE STAND IS BURDENED BY THE RISK THAT AN ILLEGALLY OBTAINED
PRIOR STATEMENT MAY BE INTRODUCED TO IMPEACH HIS DIRECT TESTIMONY
DENYING COMPLICITY IN THE CRIME CHARGED AGAINST HIM."  ID., AT 230
(BRENNAN, J., DISSENTING). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

WHILE I AGREE WITH MY BROTHER BRENNAN THAT ON THE MERITS THE
JUDGMENT OF THE OREGON SUPREME COURT WAS CORRECT, I THINK IT
APPROPRIATE TO ADD A WORK ABOUT THIS COURT'S INCREASINGLY COMMON
PRACTICE OF REVIEWING STATE COURT DECISIONS UPHOLDING CONSTITUTIONAL
CLAIMS IN CRIMINAL CASES.  SEE MICHIGAN V. MOSLEY, 51 MICH. APP. 105,
214 N.W. 2D 564 (1974), CERT. GRANTED, 419 U.S. 1119 (1975); MICHIGAN
V. PAYNE, 412 U.S. 47 (1973); WISCONSIN V. YODER, 406 U.S. 205 (1972);
CALIFORNIA V. BYERS, 402 U.S. 424 (1971); CALIFORNIA V. GREEN, 399 U.S.
149 (1970). 

IN MY VIEW, WE HAVE TOO OFTEN RUSHED TO CORRECT STATE COURTS IN
THEIR VIEW OF FEDERAL CONSTITUTIONAL QUESTIONS WITHOUT SUFFICIENTLY
CONSIDERING THE RISK THAT WE WILL BE DRAWN INTO RENDERING A PURELY
ADVISORY OPINION.  PLAINLY, IF THE OREGON SUPREME COURT HAD EXPRESSLY
DECIDED THAT HASS' STATEMENT WAS INADMISSIBLE AS A MATTER OF STATE AS
WELL AS FEDERAL LAW, THIS COURT COULD NOT UPSET THAT JUDGMENT.  SEE
JANKOVICH V. INDIANA TOLL ROAD COMM'N, 379 U.S. 487 (1965); MINNESOTA
V. NATIONAL TEA CO., 309 U.S. 551 (1940); FOX FILM CORP. V. MULLER, 296
U.S. 207 (1935).  THE SOUND POLICY BEHIND THIS RULE WAS WELL
ARTICULATED BY MR. JUSTICE JACKSON IN HERB V. PITCAIRN, 324 U.S. 117
(1945): 

" THIS COURT FROM THE TIME OF ITS FOUNDATION HAS ADHERED TO THE
PRINCIPLE THAT IT WILL NOT REVIEW JUDGMENTS OF STATE COURTS THAT REST
ON ADEQUATE AND INDEPENDENT STATE GROUNDS.  THE REASON IS SO OBVIOUS
THAT IT HAS RARELY BEEN THOUGHT TO WARRANT STATEMENT.  IT IS FOUND IN
THE PARTITIONING OF POWER BETWEEN THE STATE AND FEDERAL JUDICIAL
SYSTEMS AND IN THE LIMITATIONS OF OUR OWN JURISDICITON.  OUR ONLY POWER
OVER STATE JUDGMENTS IS TO CORRECT THEM TO THE EXTENT THAT THEY
INCORRECTLY ADJUDGE FEDERAL RIGHTS.  AND OUR POWER IS TO CORRECT WRONG
JUDGMENTS, NOT OT REVISE OPINIONS.  WE ARE NOT PERMITTED TO RENDER AN
ADVISORY OPINION, AND IF THE SAME JUDGMETN WOULD BE RENDERED BY THE
STATE COURT AFTER WE CORRECTED ITS VIEWS OF FEDERAL LAWS, OUR REVIEW
COULD AMOUNT TO NOTHING MORE THAN AN ADVISORY OPINION."  ID., AT 125 -
126 (CITATIONS OMITTED). 

WHERE WE HAVE BEEN UNABLE TO SAY WITH CERTAINTY THAT THE JUDGMENT
RESTED SOLELY ON FEDERAL LAW GROUNDS, WE HAVE REFUSED TO RULE ON THE
FEDERAL ISSUE IN THE CASE; THE PROPER COURSE IS THEN EITHER TO DISMISS
THE WRIT AS IMPROVIDENTLY GRANTED OR TO REMAND THE CASE TO THE STATE
COURT TO CLARIFY THE BASIS OF ITS DECISION.  CALIFORNIA V. KRIVDA, 409
U.S. 33 (1972); MENTAL HYGIENE DEPT. V. KIRCHNER, 380 U.S. 194 (1965). 
OF COURSE, IT MAY OFTEN BE UNCLEAR WHETHER A STATE COURT HAS RELIED IN
PART ON STATE LAW IN REACHING ITS DECISION.  AS THE COURT SAID IN HERB
V. PITCAIRN, SUPRA, HOWEVER, WHERE THE ANSWER DOES NOT APPEAR "OF
RECORD" AND IS NOT "CLEAR AND DECISIVE," 

"IT SEEMS CONSISTENT WITH THE RESPECT DUE THE HIGHEST COURTS OF
STATES OF THE UNION THAT THEY BE ASKED RATHER THAN TOLD WHAT THEY HAVE
INTENDED.  IF THIS IMPOSES AN UNWELCOME BURDEN IT SHOULD BE MITIGATED
BY THE KNOWLEDGE THAT IT IS TO PROTECT THEIR JURISDICITON FROM
UNWITTING INTERFERENCE AS WELL AS TO PROTECT OUR OWN FROM UNWITTING
RENUNCIATION."  234 U.S., AT 128. 

FROM A PERUSAL OF THE OREGON SUPREME COURT'S OPINION IT IS EVIDENT
THAT THESE EXACTING STANDARDS WERE NOT MET IN THIS CASE.  THE
CONSTITUTION OF OREGON CONTAINS AN INDEPENDENT PROHIBITION AGAINST
COMPULSORY SELF-INCRIMINATION, AND THERE IS A DISTINCT POSSIBILITY THAT
THE STATE COURT INTENDED TO EXPRESS ITS VIEW OF STATE AS WELL AS
FEDERAL CONSTITUTIONAL LAW.  THE MAJORITY FLATLY STATES THAT THE CASE
WAS DECIDED BELOW SOLELY ON FEDERAL CONSTITUTIONAL GROUNDS, BUT I AM
NOT SO CERTAIN.  ALTHOUGH THE STATE COURT DID NOT EXPRESSLY CITE STATE
LAW IN SUPPORT OF ITS JUDGMENT, ITS OPINION SUGGESTS THAT IT MAY WELL
HAVE CONSIDERED THE MATTER ONE OF STATE AS WELL AS FEDERAL LAW.  THE
COURT STATED THAT IT HAD INITIALLY VIEWED THE ISSUE OF THE CASE AS
WHETHER IT SHOULD OVERRULE ONE OF ITS PRIOR PRECEDENTS IN LIGHT OF THIS
COURT'S OPINION IN HARRIS V. NEW YORK, 401 U.S. 222 (1971).  IT
CONCLUDED THAT IT WAS NOT REQUIRED TO CONSIDER WHETHER TO OVERRULE THE
EARLIER STATE CASE, HOWEVER, SINCE UPON EXAMINATION IT DETERMINED THAT
HARRIS DID NOT REACH THIS FACT SITUATION.  IN VIEW OF THE COURT'S
SUGGESTION THAT THE FEDERAL CONSTITUTIONAL RULE IN HARRIS WOULD BE
REGARDED AS MERELY A PERSUASIVE AUTHORITY EVEN IF IT WERE DEEMED TO BE
SQUARELY IN CONFLICT WITH THE STATE RULE, IT SEEMS QUITE POSSIBLE THAT
THE STATE COURT INTENDED ITS DECISION TO REST AT LEAST IN PART ON
INDEPENDENT STATE GROUNDS.  IN ANY EVENT, I AGREE WITH MR. JUSTICE
JACKSON THAT STATE COURTS SHOULD BE "ASKED RATHER THAN TOLD WHAT THEY
HAVE INTENDED." 

IN ADDITION TO THE IMPORTANCE OF AVOIDING JURISDICTIONAL
DIFFICULTIES, IT SEEMS MUCH THE BETTER POLICY TO PERMIT THE STATE COURT
THE FREEDOM TO STRIKE ITS OWN BALANCE BETWEEN INDIVIDUAL RIGHTS AND
POLICE PRACTICES, AT LEAST WHERE THE STATE COURT'S RULING VIOLATES NO
CONSTITUTIONAL PROHIBITIONS.  IT IS PECULIARLY WITHIN THE OCMPETENCE OF
THE HIGHEST COURT OF A STATE TO DETERMINE THAT IN ITS JURISDICITON THE
POLICE SHOULD BE SUBJECT TO MORE STRINGENT RULES THAN ARE REQUIRED AS A
FEDERAL CONSTITUTINAL MINIMUM.     THE OREGON COURT'S DECISION IN THIS
CASE WAS NOT PREMISED ON A RELUCTANT ADHERENCE TO WHAT IT DEEMED
FEDERAL LAW TO REQUIRE, BUT WAS BASED ON ITS INDEPENDENT CONCLUSION
THAT ADMITTING EVIDENCE SUCH AS THAT HELD ADMISSIBLE TODAY WILL
ENCOURAGE POLICE MISCONDUCT IN VIOLATION OF THE RIGHT AGAINST
COMPULSORY SELF-INCRIMINATION.  THIS IS PRECISELY THE SETTING IN WHICH
IT SEEMS MOST LIKELY THAT THE STATE COURT WOULD APPLY THE STATE'S SELF
INCRIMINATION CLAUSE TO LESSEN WHAT IT PERCEIVES AS AN INTOLERABLE RISK
OF ABUSE.  ACCORDINGLY, IN MY VIEW THE COURT SHOULD NOT REVIEW A STATE
COURT DECISION REVERSING A CONVICTION UNLESS IT IS QUITE CLEAR THAT THE
STATE COURT HAS RESOLVED ALL APPLICABLE STATE LAW QUESTIONS ADVERSELY
TO THE DEFENDANT AND THAT IT FEELS COMPELLED BY ITS VIEW OF THE FEDERAL
CONSTITUTIONAL ISSUE TO REVERSE THE CONVICTION AT HAND. 

EVEN IF THE MAJORITY IS CORRECT THAT THE OREGON SUPREME COURT DID
NOT INTEND TO EXPRESS A VIEW OF STATE AS WELL AS FEDERAL LAW, THIS
COURT SHOULD, AT THE VERY LEAST, REMAND THE CASE FOR SUCH FURTHER
PROCEEDINGS AS THE STATE COURT DEEMS APPROPRIATE.  I CAN SEE ABSOLUTELY
NO REASON FOR DEPARTING FROM THE USUAL COURSE OF REMANDING THE CASE TO
PERMIT THE STATE COURT TO CONSIDER ANY OTHER CLAIMS, INCLUDING THE
POSSIBLE APPLICABILITY OF STATE LAW TO THE ISSUE TREATED HERE.  SEE
MICHIGAN V. PAYNE, 412 U.S., AT 57; CALIFORNIA V. BYERS, 402 U.S., AT
434; CALIFORNIA V. GREEN, 399 U.S., AT 168 - 170; C. WRIGHT, FEDERAL
COURTS 488 (2D ED. 1970); CF. GEORGIA RAILWAY & ELECTRIC CO. V.
DECATUR, 297 U.S. 620, 623 (1936).  SURELY THE MAJORITY DOES NOT MEAN
TO SUGGEST THAT THE OREGON SUPREME COURT IS FORECLOSED FROM CONSIDERING
THE RESPONDENT'S STATE LAW CLAIMS OR EVEN RULING SUA SPONTE THAT THE
STATEMENT IN QUESTION IS NOT ADMISSIBLE AS A MATTER OF STATE LAW.  IF
SO, THEN I SHOULD THINK THIS UNPRECEDENTED ASSUMPTION OF AUTHORITY WILL
BE AS MUCH A SURPRISE TO THE SUPREME COURT OF OREGON AS IT IS TO ME. 

I DISSENT. 

THOMAS H. DENNEY, ASSISTNAT ATTORNEY GENERAL OF OREGON, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE LEE JOHNSON,
ATTORNEY GENERAL, AND W. MICHAEL GILLETTE, ASSISTANT ATTORNEY GENERAL. 

SAM A. MC KEEN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BIREF WAS ENVER BOZGOZ. 
..END :















LASCARIS V. SHIRLEY, 420 U.S. 730 


       LASCARIS, COMMISSIONER, DEPARTMENT OF SOCIAL SERVICES OF

           ONONDAGA COUNTY V. SHIRLEY ET AL.

   APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

         NORTHERN DISTRICT OF NEW YORK

        NO. 73 - 1016.  ARGUED DECEMBER 18, 1974--DECIDED MARCH 19,

  1975; 365 F. SUPP. 818, AFFIRMED. 

TOGETHER WITH NO. 73 - 1095, LAVINE, COMMISSIONER, DEPARTMENT OF
SOCIAL SERVICES OF NEW YORK V. SHIRLEY ET AL., ALSO ON APPEAL TO THE
SAME COURT. 


    AMENDMENT, SUBSEQUENT TO THIS COURT'S NOTING PROBABLE

  JURISDICITON OF APPEAL FROM JUDGMENT OF THREE-JUDGE DISTRICT

  COURT, OF SEC. 402 (A) OF SOCIAL SECURITY ACT RESOLVES QUESTION

  BELOW OF CONFLICT BETWEEN SEC. 402 (A) AND PROVISION OF NEW YORK

  SOCIAL SERVICES LAW REQUIRING THE RECIPIENT, AS A CONDITION OF

  ELIGIBILITY FOR BENEFITS UNDER THE AID TO FAMILIES WITH DEPENDENT

  CHILDREN PROGRAM, TO COOPERATE TO COMPEL THE ABSENT PARENT TO

  CONTRIBUTE TO CHILD'S SUPPORT. 

PER CURIAM. 

AFTER OUR PREVIOUS REMAND, 409 U.S. 1052 (1972), THE THREE-JUDGE
DISTRICT COURT HELD THAT AMENDED NEW YORK SOCIAL SERVICES LAW SEC. 101
A "ENGRAFTED) . . . A CONDITION ON TO THE CONGRESSIONALLY PRESCRIBED
INITIAL AFDC ELIGIBILITY REQUIREMENTS OR ON TO THE GROUNDS FOR
DISCONTINUANCE OF BENEFITS."  365 F. SUPP. 818, 821 (1973).  THAT
CONDITION, THE COURT HELD, RENDERED THE AMENDED SECTION INVALID BECAUSE
IN CONFLICT WITH THE SOCIAL SECURITY ACT, SEC. 402 (A), 42 U.S.C. SEC.
602 (A), INSOFAR AS IT REQUIRED RECIPIENT COOPERATION IN A PATERNITY OR
SUPPORT ACTION AGAINST AN ABSENT PARENT AS A CONDITION OF ELIGIBILITY
FOR BENEFITS UNDER THE PROGRAM FOR AID TO FAMILIES WITH DEPENDENT
CHILDREN.  ON JUNE 17, 1974, WE NOTED PROBABLY JURISDICTION OF THE
APPEALS OF THE STATE AND COUNTY COMMISSIONERS OF SOCIAL SERVICES, 417
U.S. 943.  SINCE THAT TIME, HOWEVER, ON JANUARY 4, 1975, PUB. L. 93 -
647, 88 STAT. 2359, AMENDED SEC. 402 (A) OF THE SOCIAL SECURITY ACT
EXPRESSLY TO RESOLVE THE OCNFLICT AS TO ELIGIBILITY FOUND BY THE THREE
JUDGE DISTRICT COURT TO EXIST BETWEEN THE FEDERAL AND STATE LAWS. 
AMENDED SEC. 402 (A), LIKE NEW YORK'S AMENDED SEC. 101-A, REQUIRES THE
RECIPIENT TO COOPERATE TO COMPEL THE ABSENT PARENT TO OCNTRIBUTE TO THE
SUPPORT OF THE CHILD. 

SECITON 402 (A), AS AMENDED, IN PERTINENT PART PROVIDES:  /1/ 

" A STATE PLAN FOR AID AND SERVICES TO NEEDY FAMILIES WITH CHILDREN
MUST

        * * * * * 

     "(26) PROVIDE THAT, AS A CONDITION OF ELIGIBILITY FOR AID,
EACH

  APPLICANT OR RECIPIENT WILL BE REQUIRED--,

        * * * * * 

     "(B) TO COOPERATE WITH THE STATE (I) IN ESTABLISHING THE

  PATERNITY OF A CHILD BORN OUT OF WEDLOCK WITH RESPECT TO WHOM AID

  IS CLAIMED, AND (II) IN OBTAINING SUPPORT PAYMENTS FOR SUCH

  APPLICANT AND FOR A CHILD WITH RESPECT TO WHOM SUCH AID IS

  CLAIMED, OR IN OBTAINING ANY OTHER PAYMENTS OR PROPERTY DUE SUCH

  APPLICANT OR SUCH CHILD AND THAT, IF THE RELATIVE WITH WHOM A

  CHILD IS LIVING IS FOUND TO BE INELIGIBLE BECAUSE OF FAILURE TO

  COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPHS (A) AND (B) OF THIS

  PARAGRAPH, ANY AID FOR WHICH SUCH CHILD IS ELIGIBLE WILL BE

  PROVIDED IN THE FORM OF PROTECTIVE PAYMENTS AS DESCRIBED IN

  SECTION 406 (B)(2) (WITHOUT REGARD TO SUBPARAGRAPHS (A) THROUGH

  (E) OF SUCH SECITON) . . . ." 

WE AFFIRM THE JDUGMENT OF THE THREE-JUDGE COURT.  TOWNSEND V. SWANK,
404 U.S. 282 (1971); CARLESON V. REMILLARD, 406 U.S. 598 (1972).  IN
LIGHT OF THE RESOLUTION OF THE CONFLICT BY PUB. L. 93 - 647, WE HAVE NO
OCCASION TO PREPARE AN EXTENDED OPINION. 

                                  AFFIRMED. 

/1/ PUB. L. 93 - 647 PROVIDES THAT SEC. 402 (A), AS AMENDED, SHALL
BECOME EFFECTIVE ON JULY 1, 1975.  HOWEVER, PRESIDENT FORD ANNOUNCED
WHEN HE SIGNED THE LAW THAT HE WOULD PROPOSE CHANGES TO SEVERAL
MONTHS OF THE 94TH CONGRESS, STATING: 

" THE SECOND ELEMENT OF THIS BILL INVOLVES THE COLLECTION OF CHILD
SUPPORT PAYMENTS FROM ABSENT PARENTS.  I STRONGLY AGREE WITH THE
OBJECTIVES OF THIS LEGISLATION. 

" IN PURSUIT OF THIS OBJECTIVE, HOWEVER, CERTAIN PROVISIONS OF THIS
LEGISLATION GO TOO FAR BY INJECTING THE FEDERAL GOVERNMENT INTO
DOMESTIC RELATIONS.  SPECIFICALLY, PROVISIONS FOR USE OF THE FEDERAL
COURTS, THE TAX COLLECTION PROCEDURES OF THE INTERNAL REVENUE SERVICE,
AND EXCESSIVE AUDIT REQUIREMENTS ARE AN UNDESIRABLE AND UNNECESSARY
INTRUSION OF THE FEDERAL GOVERNMENT INTO DOMESTIC RELATIONS.  THEY ARE
ALSO AN UNDESIRABLE ADDITION TO THE WORKLOAD OF THE FEDERAL COURTS, THE
IRS AND THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE AUDIT AGENCY. 
FURTHER, THE ESTABLISHMENT OF A PARENT LOCATOR SERVICE IN THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE WITH ACCESS TO ALL FEDERAL
RECORDS RAISES SERIOUS PRIVACY AND ADMINISTRATIVE ISSUES.  I BELIEVE
THAT THESE DEFECTS SHOULD BE CORRECTED IN THE NEXT CONGRESS, AND I WILL
PROPOSE LEGISLATION TO DO SO."  11 WEEKLY COMPLIATION OF PRESIDENTIAL
DOCUMENTS, NO. 2, JAN. 13, 1975, P. 20. 

THE CHIEF JUSTICE, MR. JUSTICE POWELL, AND MR. JUSTICE REHNQUIST
DISSENT. 

ALAN W. RUBENSTEIN ARGUED THE CAUSE FOR APPELLANTS IN BOTH CASES. 
WITH HIM ON THE BRIEFS FOR APPELLANT IN NO. 73 - 1095 WERE LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, AND RUTH KESSLER TOCH,
SOLICITOR GENERAL.  PHILIP C. PINSKY AND JOHY B. LA PARO FILED A BRIEF
FOR APPELLANT IN NO. 73 - 1016. 

DOUGLAS A. ELDRIDGE ARGUED THE CASUE PRO HAC VICE FOR APPELLEES IN
BOTH CASES.  WITH HIM ON THE BIREF FOR APPELLEE STUCK WAS ISADORE
GREENBERG. 

RONALD A. ZUMBRUN FILED A BRIEF FOR THE PACIFIC LEGAL FOUNDATION AS
AMICUS CURIAE URGING REVERSAL IN BOTH CASES.  EVELLE J. YOUNGER,
ATTORNEY GENERAL, ELIZABETH PALMER, ASSISTANT ATTORNEY GENERAL, AND
JOHN J. KLEE, JR., DEPUTY ATTORNEY GENERAL, FILED A BRIEF FOR THE STATE
OF CALIFORNIA AS AMICUS CURIAE URGING REVERSAL IN NO. 73 - 1095. 
..END :
















SOUTHEASTERN PROMOTIONS, LTD. V. CONRAD, 420 U.S. 546 


       SOUTHEASTERN PROMOTIONS, LTD. V. CONRAD ET AL.

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 1004.  ARGUED OCTOBER 17, 1974--DECIDED MARCH 18,

           1975; 486 F.2D 894, REVERSED. 


    PETITIONER, A PROMOTER OF THEATRICAL PRODUCTIONS, APPLIED TO

  RESPONDENTS, MEMBERS OF A MUNICIPAL BOARD CHARGED WITH MANAGING A

  CITY AUDITORIUM AND A CITY-LEASED THEATER, TO PRESENT A MUSICAL

  PRODUCTION AT THE THEATER.  UPON THE BASIS OF OUTSIDE REPORTS

  FROM WHICH IT CONCLUDED THAT THE PRODUCTION WOULD NOT BE "IN THE

  BEST INTEREST OF THE COMMUNITY," RESPONDENTS REJECTED THE

  APPLICATION.  PETITIONER'S SUBSEQUENT MOTION FOR A PRELIMINARY

  INJUNCTION WAS DENIED FOLLOWING A HEARING BY THE DISTRICT COURT,

WHICH DID NOT REVIEW THE MERITS OF RESPONDENTS' DECISION BUT

  CONCLUDED THAT PETITIONER HAD NOT MET THE BURDEN OF PROVING

  IRREPARABLE INJURY.  PETITIONER THEN SOUGHT A PERMANENT

  INJUNCTION PERMITTING IT TO USE THE AUDITORIUM.  SEVERAL MONTHS

  LATER, RESPONDENTS FILED THEIR FIRST RESPONSIVE PLEADING, AND THE

  DISTRICT COURT, AFTER A THREE-DAY HEARING ON THE CONTENT OF THE

  MUSICAL, CONCLUDED THAT THE PRODUCTION CONTAINED OBSCENE CONDUCT

  NOT ENTITLED TO FIRST AMENDMENT PROTECTION AND DENIED INJUNCTIVE

  RELIEF.  THE COURT OF APPEALS AFFIRMED.  HELD: 

     1.  RESPONDENTS' DENIAL OF USE OF THE MUNICIPAL FACILITIES FOR

  THE PRODUCTION, WHICH WAS BASED ON THE BOARD MEMBERS'  JUDGMENT

OF THE MUSICAL'S CONTENT, CONSTITUTED A PRIOR RESTRAINT. 

 SHUTTLESWORTH V. BIRMINGHAM, 394 U.S. 147; CANTWELL V.

CONNECTICUT, 310 U.S. 296.  PP. 552 - 558. 

     2.  A SYSTEM OF PRIOR RESTRAINT "AVOIDS CONSTITUTIONAL

  INFIRMITY ONLY IF IT TAKES PLACE UNDER PROCEDURAL SAFEGUARDS

  DESIGNED TO OBVIATE THE DANGERS OF A CENSORSHIP SYSTEM," FREEMAN

  V. MARYLAND, 380 U.S. 51, 58, VIZ., (1) THE BURDEN OF INSTITUTING

  JUDICIAL PROCEEDINGS, AND OF PROVING THAT THE MATERIAL IS

  UNPROTECTED, MUST REST ON THE CENSOR; (2) ANY RESTRAINT BEFORE

  JUDICIAL REVIEW CAN BE IMPOSED ONLY FOR A SPECIFIED BRIEF PERIOD

  AND ONLY TO PRESERVE THE STATUS QUO; AND (3) A PROMPT JUDICIAL

  DETERMINATION MUST BE ASSURED.  SINCE THOSE SAFEGUARDS IN SEVERAL

  RESPECTS WERE LACKING HERE, RESPONDENTS' ACTION VIOLATED

  PETITIONER'S FIRST AMENDMENT RIGHTS.  PP. 558 - 562. 

     BLACKMUM, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BRENNAN, STEWART, MARSHALL, AND POWELL JJ., JOINED.  DOUGLAS, J.,

 FILED AN OPINION DISSENTING IN PART AND CONCURRING IN THE RESULT

  IN PART, POST, P. 563.  WHITE, J., FILED A DISSENTING OPINION, IN

  WHICH BURGER, C.J., JOINED, POST, P. 564.  REHNQUIST, J., FILED A

  DISSENTING OPINION, POST, P. 570. 

MR. JUSTICE BLACKMUN DELEIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER FIRST AMENDMENT RIGHTS WERE
ABRIDGED WHEN RESPONDENTS DENIED PETITIONER THE USE OF A MUNICIPAL
FACILITY IN CHATTANOOGA, TENNESSEE, FOR THE SHOWING OF THE
CONTROVERSIAL ROCK MUSICAL " HAIR."  IT IS ESTABLISHED, OF COURSE, THAT
THE FOURTEENTH AMENDMENT HAS MADE APPLICABLE TO THE STATES THE FIRST
AMENDMENT'S GUARANTEE OF FREE SPEECH.  DOUGLAS V. CITY OF JEANNETTE,
319 U.S. 157, 162 (1943). 

I 

PETITIONER, SOUTHEASTERN PROMOTIONS, LTD., IS A NEW YORK CORPORATION
ENGAGED IN THE BUSINESS OF PROMOTING AND PRESENTING THEATRICAL
PRODUCTIONS FOR PROFIT.  ON OCTOBER 29, 1971, IT APPLIED FOR THE USE OF
THE TIVOLI, A PRIVATELY OWNED CHATTANOOGA THEATER UNDER LONG-TERM LEASE
TO THE CITY, TO PRESENT " HAIR" THERE FOR SIX DAYS BEGINNING NOVEMBER
23.  THIS WAS TO BE A ROAD COMPANY SHOWING OF THE MUSICAL THAT HAD
PLAYED FOR THREE YEARS ON BROADWAD, AND HAD APPEARED IN OVER 140
CITIES 

RESPONDENTS ARE THE DIRECTORS OF THE CHATTANOOGA MEMORIAL
AUDITORIUM, A MUNICIPAL THEATER.  /2/ SHORTLY AFTER RECEIVING
SOUTHEASTERN'S APPLICATIONS, THE DIRECTORS MET, AND, AFTER A BRIEF
DISCUSSION, VOTED TO REJECT IT.  NONE OF THEM HAD SEEN THE PLAY OR READ
THE SCRIPT, BUT THEY UNDERSTOOD FROM OUTSIDE REPORTS THAT THE MUSICAL,
AS PRODUCED ELSEWHERE, INVOLVED NUDITY AND OBSCENITY ON STAGE. 
ALTHOUGH NO CONFLICTING ENGAGEMENT WAS SCHEDULED FOR THE TIVOLI,
RESPONDENTS DETERMINED THAT THE PRODUCTION WOULD NOT BE "IN THE BEST
INTEREST OF THE COMMUNITY."  SOUTHEASTERN WAS SO NOTIFIED BUT NO
WRITTEN STATEMENT OF REASONS WAS PROVIDED. 

ON NOVEMBER 1 PETITIONER, ALLEGING THAT RESPONDENTS' ACTION ABRIDGED
ITS FIRST AMENDMENT RIGHTS, SOUGHT A PRELIMINARY INJUNCTION FROM THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE. 
RESPONDENTS DID NOT THEN FILE AN ANSWER TO THE COMPLAINT.  /3/ A
HEARING WAS HELD ON NOVEMBER 4.  THE DISTRICT COURT TOOK EVIDENCE AS TO
THE PLAY'S CONTENT, AND RESPONDENT CONRAD GAVE THE FOLLOWING ACCOUNT OF
THE BOARD'S DECISION: 

" WE USE THE GENERAL TERMINOLOGY IN TURNING DOWN THE REQUEST FOR ITS
USE THAT WE FELT IT WAS NOT IN THE BEST INTEREST OF THE COMMUNITY AND I
CAN'T SPEAK BEYOND THAT.  THAT WAS TEH BOARD'S DETERMINATION. 

     " NOW, I WOULD HAVE TO SPEAK FOR MYSELF, THE POLICY TO WHICH I

  WOULD REFER, AS I MENTIONED, BASICALLY INDICATES THAT WE WILL, AS

  A BOARD, ALLOW THOSE PRODUCTIONS WHICH ARE CLEAN AND HEALTHFUL

  AND CULTURALLY UPLIFTING, OR WORDS TO THAT EFFECT.  THEY ARE

  QUOTED IN THE ORIGINAL DEDICATION BOOKLET OF THE MEMORIAL

  AUDITORIUM."  APP.  25.  /4/

THE COURT DENIED PRELIMINARY RELIEF, CONCLUDING THAT PETITIONER HAD
FAILED TO SHOW THAT IT WOULD BE IRREPARABLE HARMED PENDING A FINAL
JUDGMENT SINCE SCHEDULING WAS "PURELY A MATTER OF FINANCIAL LOSS OR
GAIN" AND WAS COMPENSABLE. 

SOUTHEASTERN SOME WEEKS LATER PRESSED FOR A PERMANENT INJUNCITON
PERMITTING IT TO USE THE LARGER AUDITORIUM, RATHER THAN THE TIVOLI, ON
SUNDAY, APRIL 9, 1972.  THE DISTRICT COURT HELD THREE DAYS OF HEARINGS
BEGINNING APRIL 3.  ON THE ISSUE OF OBSCENITY VEL NON, PRESENTED TO AN
ADVISORY JURY, IT TOOK EVIDENCE CONSISTING OF THE FULL SCRIPT AND
LIBRETTO, WITH PRODUCTION NOTES AND STAGE INSTRUCTIONS, A RECORDING OF
THE MUSICAL NUMBERS, A SOUVENIR PROGRAM, AND THE TESTIMONY OF SEVEN
WITNESS WHO HAD SEEN THE PRODUCTION ELSEWHERE.  THE JURY RETURNED A
VERDICT THAT " HAIR" WAS OBSCENE.  THE DISTRICT COURT AGREED.  IT
CONCLUDED THAT CONDUCT IN THE PRODUCTION--GROUP NUDITY AND SIMULATED
SEX--WOULD VIOLATE CITY ORDINANCES LAND STATE STATUTES /5/ MAKING
PUBLIC NUDITY AND OBSCENE ACTS CRIMINAL OFFENSES.  /6/  THIS CRIMINAL
CONDUCT, THE COURT REASONED, WAS NEITHER SPEECH NOR SYMBOLIC SPEECH,A
ND WS TO BE VIEWED SEPARATELY FROM THE MUSICAL'S SPEECH ELEMENTS. 
BEING PURE CONDUCT, COMPARABLE TO RAPE OR MURDER, IT WAS NOT ENTITLED
TO FIRST AMENDMENT PROTECTION.  ACCORDINGLY, THE COURT DENIED THE
INJUNCITON.  341 F. SUPP. 465 (1972). 

ON APPEAL, THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT,
BY A DIVIDED VOTE, AFFIRMED.  486 F. 2D 894 (1973).  THE MAJORITY
RELIED PRIMARILY ON THE LOWER COURT'S REASONING.  NEITHER THE JUDGES OF
THE COURT OF APPEALS NOR THE DISTRICT COURT SAW THE MUSICAL PERFORMED. 
BECAUSE OF THE FIRST AMENDMENT OVERTONES, WE GRANTED CERTIORARI.  415
U.S. 912 (1974). 

PETITIONER URGES REVERSAL ON THE GROUNDS THAT (1) RESPONDENTS'
ACTION CONSTITUTED AN UNLAWFUL PRIOR RESTRIANT, (2) THE COURTS BELOW
APPLIED AN INCORRECT STANDARD FOR THE DETERMINATION OF THE ISSUE OF
OBSCENITY VEL NON, AND (3) THE RECORD DOES NOT SUPPORT A FINDING THAT "
HAIR" IS OBSCENE.  WE DO NOT REACH THE LATTER TWO CONTENTIONS, FOR WE
AGREE WITH THE FIRST.  WE HOLD THAT RESPONDENTS' REJECTION OF
PETITIONER'S APPLICATION TO USE THIS PUBLIC FORUM ACCOMPLISHED A PRIOR
RESTRAINT UNDER A SYSTEM LACKING IN CONSTITUTIONALLY REQUIRED MINIMAL
PROCEDURAL SAFEGUARDS.  ACCORDINGLY, ON THIS NARROW GROUND, WE
REVERSE. 

        II 

RESPONDENTS' ACTION HERE IS INDISTINGUISHABLE IN ITS CENSORING
EFFECT FROM THE OFFICIAL ACTIONS CONSISTENTLY IDENTIFIED AS PRIOR
RESTRAINTS IN A LONG LINE OF THIS COURT'S DECISIONS.  SEE SHUTTLESWORTH
V. BIRMINGHAM, 394 U.S. 147, 150 - 151 (1969); STAUB V. CITY OF BAXLEY,
355 U.S. 313, 322 (1958); KUNZ V. NEW YORK, 340 U.S. 290, 293 - 294
(1951); SCHNEIDER V. STATE, 308 U.S. 147, 161 - 162 (1939); LOVELL V.
GRIFFIN, 303 U.S. 444, 451 - 452 (1938).  IN THESE CASES, THE
PLAINTIFFS ASKED THE COURTS TO PROVIDE RELIEF WHERE PUBLIC OFFICIALS
HAD FORBIDDEN THE PLAINTIFFS THE USE OF PUBLIC PLACES TO SAY WHAT THEY
WANTED TO SAY.  THE RESTRAINTS TOOK A VARIETY OF FORMS, WITH OFFICIALS
EXERCISING CONTROL OVER DIFFERENT KINDS OF PUBLIC PLACES UNDER THE
AUTHORITY OF PARTICULAR STATUTES.  ALL, HOWEVER, HAD THIS IN COMMON:
THEY GAVE PUBLIC OFFICIALS THE POWER TO DENY USE OF A FORUM IN ADVANCE
OF ACTUAL EXPRESSION. 

INVARIABLY, THE COURT HAS FELT OBLIGED TO CONDEMN SYSTEMS IN WHICH
THE EXERCISE OF SUCH AUTHORITY WAS NOT BOUNDED BY PRECISE AND CLEAR
STANDARDS.  THE REASONING HAS BEEN SIMPLY, THAT THE DANGER OF
CENSORSHIP AND OF ABRIDGMENT OF OUR PRECIOUS FIRST AMENDMENT FREEDOMS
IS TOO GREAT WHERE OFFICIALS HAVE UNBRIDLED DISCRETION OVER A FORUM'S
USE.  OUR DISTATE FOR CENSORHIP--REFLECTING THE NATURAL DISTASTE OF A
FREE PEOPLE--IS DEEP-WRITTEN IN OUR LAW. 

IN EACH OF THE CITED CASES THE PRIOR RESTRAINT WAS EMBEDDED IN THE
LICENSING SYSTEM ITSELF, OPERATING WITHOUT ACCEPTABLE STANDARDS.  IN
SHUTTLESWORTH THE COURT HELD UNCONSTITUTIONAL A BRIMINGHAM ORDIANCE
WHICH CONFERRED UPON THE CITY COMMISSION VIRTUALLY ABSOLUTE POWER TO
PROHIBIT ANY "PARADE," "PROCESSION," OR "DEMONSTRATION" ON STREETS OR
PUBLIC WAYS.  IT RULED THAT "A LAW SUBJECTING THE EXERCISE OF FIRST
AMENDMENT FREEDOMS TO THE PRIOR RESTRAINT OF A LICENSE, WITHOUT NARROW,
OBJECTIVE, AND DEFINITE STANDARDS TO GUIDE THE LICENSING AUTHORITY, IS
UNCONSTITUTIONAL" 394 U.S., AT 150 - 151.  IN HAGUE V. CIO, 307 U.S.
496 (1939), A JERSEY CITY ORDINANCE THAT FORBADE OUBLIC ASSEMBLY IN THE
STREETS OR PARKS WITHOUT A PERMIT FROM THE LOCAL DIRECTOR OF SAFETY,
WHO WAS EMPOWERED TO REFUSE THE PERMIT UPON HIS OPINION THAT HE WOULD
HEREBY PREVENT "'RIOTS, DISTURBANCES OR DISORDERLY ASSEMBLAGE,'"  WAS
HELD VOID ON ITS FACE.  ID., AT 516 (OPINION OF ROBERTS, J.). 

IN CANTWELL V. CONNECTICUT, 310 U.S. 296 (1940), A UNANIMOUS COURT
HELD INVALID AN ACT WHICH PROSCRIBED THE SOLICITATION OF MONEY OR ANY
VALUABLE THING FOR "ANY ALLEGED RELIGIOUS, CHARITABLE OR PHILANTHROPIC
CAUSE" UNLESS THAT CAUSE WAS APPROVED BY THE SECRETARY OF THE PUBLIC
WELFARE COUNCIL.  THE ELEMENTS OF THE PRIOR RESTRAINT WERE CLEARLY SET
FORTH: 

     " IT WILL BE NOTED, HOWEVER, THAT THE ACT REQUIRES AN

  APPLICATION TO THE SECRETARY OF THE PUBLIC WELFARE COUNCIL OF THE

  STATE; THAT HE IS EMPOWERED TO DETERMINE WHETHER THE CAUSE IS A

  RELIGIOUS ONE, AND THAT THE ISSUE OF A CERTIFICATE DEPENDS UPON

  HIS AFFIRMATIVE ACTION.  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."  ID., AT 305. 

THE ELEMENTS OF PRIOR RESTRAINT IDENTIFIED IN CANTWELL AND OTHER
CASES WERE CLEARLY PRESENT IN THE SYSTEM BY WHICH THE CHATTANOOGA BOARD
REGULATED THE USE OF ITS THEATERS.  ONE SEEKING TO USE A THEATER WAS
REQUIRED TO APPLY TO THE BOARD.  THE BOARD WAS EMPOWERED TO DETERMINE
WHETHER THE APPLICANT SHOULD BE GRANTED PERMISSION--IN EFFECT, A
LICENSE OR PERMIT--ON THE BASIS OF ITS REVIEW OF THE CONTENT OF THE
PROPOSED PRODUCTION.  APPROVAL OF THE APPLICATION DEPENDED UPON THE
BOARD'S AFFIRMATIVE ACTION.  APPROVAL WAS NOT A MATTER OF ROUTINE;
INSTEAD, IT INVOLVED THE "APPRAISAL OF FACTS, THE EXERCISE OF JUDGMENT,
AND THE FORMATION OF AN OPINION" BY THE BOARD.  /7/ 

THE BOARD'S JUDGMENT EFFECTIVELY KEPT THE MUSICAL OFF STAGE. 
RESPONDENTS DID NOT PERMIT THE SHOW TO GO ON AND RELY ON LAW
ENFORCEMENT AUTHORITIES TO PROSECUTE FOR ANYTHING ILLEGAL THAT
OCCURRED.  RATHER, THEY DENIED THE APPLICATION IN ANTICIPATION THAT THE
PRODUCTION WOULD VIOLATE THE LAW.  SEE NEW YORK TIMES CO. V. UNITED
STATES, 403 U.S. 713, 735 - 358 (1971) (WHITE, J., CONCURRING). 

RESPONDENTS' ACTION WAS NO LESS A PRIOR RESTRAINT BECAUSE THE PUBLIC
FACILITIES UNDER THEIR CONTROL HAPPENED TO BE MUNICIPAL THEATERS.  THE
MEMORIAL AUDITORIUM AND THE TRVOLI WERE PUBLIC FORUMS DESIGNED FOR AND
DEDICATED TO EXPRESSIVE ACTIVITIES.  THERE WAS NO QUESTION AS TO THE
USEFULNESS OF EITHER FACILITY FOR PETITIONER'S PRODUCTION.  THERE WAS
NO CONTENTION BY THE BOARD THAT THESE FACILITIES COULD NOT ACCOMMODATE
A PRODUCTION OF THIS SIZE.  NONE OF THE CIRCUMSTANCES QUALIFYING AS AN
ESTABLISHED EXCEPTION TO THE DOCTRINE OF PRIOR RESTRAINT WAS PRESENT. 
PETITIONER WAS NOT SEEKING TO USE A FACILITY PRIMARILY SERVING A
COMPETING USE.  SEE, E.G., CAMERON V. JOHNSON, 390 U.S. 611 (1968);
ADDERLEY V. FLORIDA, 385 U.S. 39 (1966); BROWN V. LOUISIANA, 383 U.S.
131 (1966).  NOR WAS REJECTION OF THE APPLICATION BASED ON ANY
REGULATION OF TIME, PLACE, OR MANNER RELATED TO THE NATURE OF THE
FACILITY OR APPLICATIONS FROM OTHER USERS.  SEE COX V. NEW HAMPSHIRE,
312 U.S. 569, 574 (1941); POULOS V. NEW HAMPSHIRE, 345 U.S. 395, 408
(1953).  NO RIGHTS OF INDIVIDUALS IN SURROUNDING AREAS WERE VIOLATED BY
NOISE OR ANY OTHER ASPECT OF THE PRODUCTION.  SEE KOVACS V. COOPER, 336
U.S. 77 (1949).  THERE WAS NO CAPTIVE AUDIENCE.  SEE LEHMAN V. CITY OF
SHAKER HEIGHTS, 418 U.S. 298, 304, 306 - 308 (1974); PUBLIC UTILITIES
COMM'N V. POLLAK, 343 U.S. 451, 467 - 468 (1952) (DOUGLAS, J.,
DISSENTING). 

WHETHER PETITIONER MIGHT HAVE USED SOME OTHER, PRIVATELY OWNED,
THEATER IN THE CITY FOR THE PRODUCTION IS OF NO CONSEQUENCE.  THERE IS
REASON TO DOUBT ON THIS RECORD WHETHER ANY OTHER FACILITY WOULD HAVE
SERVED AS WELL AS THESE, SINCE NONE APPARENTLY HAD THE SEATING
CAPACITY, ACOUSTICAL FEATURES, STAGE EQUIPMENT, AND ELECTRICAL SERVICE
THAT THE SHOW REQUIRED.  EVEN IF A PRIVATELY OWNED FORUM HAD BEEN
AVAILABLE, THAT FACT ALONE WOULD NOT JUSTIFY AN OTHERWISE IMPERMISSIBLE
PRIOR RESTRAINT.  "(ONE IS NOT TO HAVE THE EXERCISE OF HIS LIBERTY OF
EXPRESSION IN APPROPRIATE PLACES ABRIDGED ON THE PLEA THAT IT MAY BE
EXERCISED IN SOME OTHER PLACE."  SCHNEIDER V. STATE, 308 U.S., AT 163. 

THUS, IT DOES NOT MATTER FOR PURPOSES OF THIS CASE THAT THE BOARD'S
DECISION MIGHT NOT HAVE HAD THE EFFECT OF TOTAL SUPPRESSION OF THE
MUSICAL IN THE COMMUNITY.  DENYING USE OF THE MUNICIPAL FACILITY UNDER
THE CIRCUMSTANCES PRESENT HERE CONSTITUTED THE PRIOR RESTRAINT.  /8/
THAT RESTRAINT WAS FINAL.  IT WAS NO MERE TEMPORARY BAR WHILE NECESSARY
JUDICIAL PROCEEDINGS WERE UNDER WAY.  /9/ 

ONLY IF WE WERE TO CONCLUDE THAT LIVE DRAMA IS UNPROTECTED BY THE
FIRST AMENDMENT--OR SUBJECT TO A TOTALLY DIFFERENT STANDARD FROM THAT
APPLIED TO OTHER FORMS OF EXPRESSION--COULD WE POSSIBLY FIND NO PRIOR
RESTRAINT HERE.  EACH MEDIUM OF EXPRESSION, OF COURSE, MUST BE ASSESSED
FOR FIRST AMENDMENT PURPOSES BY STANDARDS SUITED TO IT, FOR EACH MAY
PRESENT ITS OWN PROBLEMS.  JOSEPH BURSTYN, INC. V. WILSON, 343 U.S.
495, 503 (1952); SEE RED LION BROADCASTING CO. V. FCC, 395 U.S. 367
(1969).  BY ITS NATURE, THEATER USUALLY IS THE ACTING OUT--OR SINGING
OUT--OF THE WRITTEN WORD, AND FREQUENTLY MIXES SPEECH WITH LIVE ACTION
OR CONDUCT.  BUT THAT IS NO REASON TO HOLD THEATER SUBJECT TO A
DRASTICALLY DIFFERENT STANDARD.  FOR, AS WAS SAID IN BURSTYN, SUPRA, AT
503, WHEN THE COURT WAS FACED WITH THE QUESTION OF WHAT FIRST AMENDMENT
STANDARD APPLIES TO FILMS: 

"(THE BASIC PRINCIPLES OF FREEDOM OF SPEECH AND THE PRESS, LIKE THE
FIRST AMENDMENT'S COMMAND, DO NOT VARY.  THOSE PRINCIPLES, AS THEY HAVE
FREQUENTLY BEEN ENUNCIATED BY THIS COURT, MAKE FREEDOM OF EXPRESSION
THE RULE.  THERE IS NO JUSTIFICATION IN THIS CASE FOR MAKING AN
EXCEPTION TO THAT RULE."              III 

LABELING RESPONDENTS' ACTION A PRIOR RESTRAINT DOES NOT END THE
INQUIRY.  PRIOR RESTRAINTS ARE NOT UNCONSTITUTIONAL PER SE.  BANTAM
BOOKS, INC. V. SULLIVAN, 372 U.S. 58, 70 N. 10 (1963).  SEE NEAR V.
MINNESOTA EX REL. OLSON, 283 U.S. 697, 716 (1931); TIMES FILM CORP. V.
CHICAGO, 365 U.S. 43 (1961).  WE HAVE REJECTED THE CONTENTION THAT THE
FIRST AMENDMENT'S PROTECTION "INCLUDES COMPLETE AND ABSOLUTE FREEDOM TO
EXHIBIT, AT LEAST ONCE, ANY AND EVERY KIND OF MOTION PICTURE ... EVEN
IF THIS FILM CONTAINS THE BASEST TYPE OF PORNOGRAPHY, OR INCITEMENT TO
RIOT, OR FORCEFUL OVERTHROW OF ORDERLY GOVERNMENT...."  ID., AT 46 -
47. 

ANY SYSTEM OF PRIOR RESTRAINT, HOWEVER, "COMES TO THIS COURT BEARING
A HEAVY PRESUMPTION AGAINST ITS CONSTITUTIONAL VALIDITY."  BANTAM
BOOKS, INC. V. SULLIVAN, 372 U.S., AT 70; NEW YORK TIMES CO. V. UNITED
STATES, 403 U.S., AT 714; ORGANIZATION FOR A BETTER AUSTIN V. KEEFE,
402 U.S. 415, 419 (1971); CARROLL V. PRINCESS ANNE, 393 U.S. 175, 181
(1968); NEAR V. MINNESOTA EX REL. OLSON, 283 U.S., AT 716.  THE
PRESUMPTION AGAINST PRIOR RESTRAINTS IS HEAVIER--AND THE DEGREE OF
PROTECTION BROADER--THAN THAT AGAINST LIMITS ON EXPRESSION IMPOSED BY
CRIMINAL PENALITIES.  BEHIND THE DISTINCTION IS A THEORY DEEPLY ETCHED
IN OUR LAW:  A FREE SOCIETY PREFERS TO PUNISH THE FEW WHO ABUSE RIGHTS
OF SPEECH AFTER THEY BREAK THE LAW THAN TO THROTTLE THEM AND ALL OTHERS
BEFOREHAND.  IT IS ALWAYS DIFFICULT TO KNOW IN ADVANCE WHAT AN
INDIVIDUAL WILL SAY, AND THE LINE BETWEEN LEGITIMATE AND ILLEGITIMATE
SPEECH IS OFTEN SO FINELY DRAWN THAT THE RISKS OF FREEWHELLING
CENSORSHIP ARE FORMIDABLE.  SEE SPEISER V. RANDALL, 357 U.S. 513
(1958). 

IN ORDER TO BE HELD LAWFUL, RESPONDENTS' ACTION, FIRST, MUST FIT
WITHIN ONE OF THE NARROWLY DEFINED EXCEPTIONS TO THE PROHIBITION
AGAINST PRIOR RESTRAINTS, AND, SECOND, MUST HAVE BEEN ACCOMPLISHED WITH
PROCEDURAL SAFEGUARDS THAT REDUCE THE DANGER OF SUPPRESSING
CONSTITUTIONALLY PROTECTED SPEECH.  BANTAM BOOKS, INC. V. SULLIVAN, 372
U.S., AT 71.  WE DO NOT DECIDE WHETHER THE PERFORMANCE OF " HAIR" FITS
WITHIN SUCH AN EXCEPTION OR WHETHER, AS A SUBSTANTIVE MATTER, THE
BOARD'S STANDARD FOR RESOLVING THAT QUESTION WAS CORRECT, FOR WE
CONCLUDE THAT THE STANDARD, WHATEVER IT MAY HAVE BEEN, WAS NOT
IMPLEMENTED BY THE BOARD UNDER A SYSTEM WITH APPROPRIATE AND NECESSARY
PROCEDURAL SAFEGUARDS. 

THE SETTLED RULE IS THAT A SYSTEM OF PRIOR RESTRAINT "AVOIDS
CONSTITUTIONAL INFIRMITY ONLY IF IT TAKES PLACE UNDER PROCEDURAL
SAFEGUARDS DESIGNED TO OBVIATE THE DANGERS OF A CENSORSHIP SYSTEM." 
FREEDMAN V. MARYLAND, 380 U.S. 51, 58 (1965).  SEE UNITED STATES V.
THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363, 367 (1971); BLOUNT V. RIZZI,
400 U.S. 410, 419 - 421 (1971); TEITEL FLIM CORP. V. CUSACK, 390 U.S.
139, 141 - 142 (1968).  SEE ALSO HELLER V. NEW YORK, 413 U.S. 483, 489
490 (1973); BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S., AT 70 - 71;
KINGSLEY BOOKS, INC. V. BROWN, 354 U.S. 436 (1957).  IN FREEDMAN THE
COURT STRUCK DOWN A STATE SCHEME FOR THE LICENSING OF MOTION PICUTRES,
HOLDING "THAT, BECAUSE ONLY A JUDICIAL DETERMINATION IN AN ADVERSARY
PROCEEDING ENSURES THE NECESSARY SENSITIVITY TO FREEDOM OF EXPRESSION,
ONLY A PROCEDURE REQUIRING A JUDICIAL DETERMINATION SUFFICES TO IMPOSE
A VALID FINAL RESTRAINT."  380 U.S., AT 58.  WE HELD IN FREEDMAN, AND
WE REAFFIRM HERE, THAT A SYSTEM OF PRIOR RESTRAINT RUNS AFOUL OF THE
FIRST AMENDMENT IF IT LACKS CERTAIN SAFEGUARDS:  FIRST, THE BURDEN OF
INSTITUTING JUDICIAL PROCEEDINGS, AND OF PROVING THAT THE MATERIAL IS
UNPROTECTED, MUST REST ON THE CENSOR.  SECOND, ANY RESTRAINT PRIOR TO
JUDICIAL REVIEW CAN BE IMPOSED ONLY FOR A SPECIFIED BRIEF PERIOD AND
ONLY FOR THE PURPOSE OF PRESERVING THE STATUS QUO.  THIRD, A PROMPT
FINAL JUDICIAL DETERMINATION MUST BE ASSURED. 

ALTHOUGH MOST OF OUR CASES HAVE PERTAINED TO MOTION PICTURE
LICENSING OR CENSORSHIP, THIS COURT HAS APPLIED FREEDMAN TO THE SYSTEM
BY WHICH FEDERAL CUSTOMS AGENTS SEIZE IMPORTED MATERIALS, UNITED STATES
V. THIRTY-SEVEN PHOTOGRAPHS, SUPRA, AND TO THAT BY WHICH POSTAL
OFFICIALS RESTRICT USE OF THE MAILS, BLOUNT V. RIZZI, SUPRA.  IN BLOUNT
WE HELD UNCONSTITUTIONAL PROVISIONS OF THE POSTAL LAWS DESIGNED TO
CONTROL USE OF THE MAILS FOR COMMERCE IN OBSCENE MATERIALS.  THE
PROVISIONS ENABLED THE POSTMASTER GENERAL TO HALT DELIVERY OF MAIL TO
AN INDIVIDUAL AND PREVENT PAYMENT OF MONEY ORDERS TO HIM.  THE
ADMINISTRATIVE ORDER BECAME EFFECTIVE WITHOUT JUDICIAL APPROVAL, AND
THE BURDEN OF OBTAINING JUDICIAL REVIEW WAS PLACED UPON THE USER. 

IF A SCHEME THAT RESTRICTS ACCESS TO THE MAILS MUST FURNISH THE
PROCEDURAL SAFEGUARDS SET FORTH IN FREEDMAN, NO LESS MUST BE EXPECTED
OF A SYSTEM THAT REGULATES USE OF A PUBLIC FORUM.  RESPONDENTS HERE HAD
THE SAME POWERS OF LICENSING AND CENSORSHIP EXERCISED BY POSTAL
OFFICIALS IN BLOUNT, AND BY BOARDS AND OFFICIALS IN OTHER CASES. 

THE THEORY UNDERLYING THE REQUIREMENT OF SAFEGUARDS IS APPLICABLE
HERE WITH EQUAL IF NOT GREATER FORCE.  AN ADMINISTRATIVE BOARD ASSIGNED
TO SCREENING STAGE PRODUCTIONS--AND KEEPING OFF STAGE ANYTHING NOT
DEEMED CULTURALLY UPLIFTING OR HEALTHFUL--MAY WELL BE LESS RESPONSIVE
THAN A COURT, AN INDEPENDENT BRANCH OF GOVERNMENT, TO CONSTITUTIONALLY
PROTECTED INTERESTS IN FREE EXPRESSION.  /10 AND IF JUDICIAL REVIEW IS
MADE UNDULY ONEROUS, BY REASON OF DELAY OR OTHERWISE, THE BOARD'S
DETERMINATION IN PRACTICE MAY BE FINAL. 

INSISTENCE ON RIGOROUS PROCEDURAL SAFEGUARDS UNDER THESE
CIRCUMSTANCES IS "BUT A SPECIAL INSTANCE OF THE LARGER PRINCIPLE THAT
THE FREEDOMS OF EXPRESSION MUST BE RINGED ABOUT WITH ADEQUATE
BULWARKS."  BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S., AT 66.  BECAUSE
THE LINE BETWEEN UNCONDITIONALLY GUARANTEED SPEECH AND SPEECH THAT MAY
BE LEGITIMATELY REGULATED IS A CLOSE ONE, THE "SEPARATION OF LEGITIMATE
FROM ILLEGITIMATE SPEECH CALLS FOR ... SENSITIVE TOOLS."  SPEISER V.
RANDALL, 357 U.S., AT 525.  THE PERILS OF PRIOR RESTRAINT ARE WELL
ILLUSTRATED BY THIS CASE, WHERE NEITHER THE BOARD NOR THE LOWER COURTS
COULD HAVE KNOWN PRECISELY THE EXTENT OF NUDITY OR SIMULATED SEX IN THE
MUSICAL, OR EVEN THAT EITHER WOULD APPEAR, BEFORE THE PLAY WAS ACTUALLY
PERFORMED.  /11/ 

PROCEDURAL SAFEGUARDS WERE LACKING HERE IN SEVERAL RESPECTS.  THE
BOARD'S SYSTEM DID NOT PROVIDE A PROCEDURE FOR PROMPT JUDICIAL REVIEW. 
ALTHOUGH THE DISTRICT COURT COMMENDABLY HELD A HEARING ON PETITIONER'S
MOTION FOR A PRELIMINARY INJUNCTION WITHIN A FEW DAYS OF THE BOARD'S
DECISION, IT DID NOT REVIEW THE MERITS OF THE DECISION AT THAT TIME. 
THE QUESTION AT THE HEARING WAS WHETHER PETITIONER SHOULD RECEIVE
PRELIMINARY RELIEF, I.E., WHETHER THERE WAS LIKELIHOOD OF SUCCESS ON
THE MERITS AND WHETHER PETITIONER WOULD SUFFER IRREPARABLE INJURY
PENDING FULL REVIEW.  EFFECTIVE REVIEW ON THE MERITS WAS NOT OBTAINED
UNTIL MORE THAN FIVE MONTHS LATER.  THROUGHOUT, IT WAS PETITIONER, NOT
THE BOARD, THAT BORE THE BURDEN OF OBTAINING JUDICIAL REVIEW.  IT WAS
PETITIONER THAT HAD THE BURDEN OF PERSUASION AT THE PRELIMINARY HEARING
IF NOT AT THE LATER STAGES OF THELITIGATION.  RESPONDENTS DID NOT FILE
A FORMAL ANSWER TO THE COMPLAINT FOR FIVE MONTHS AFTER PETITIONER
SOUGHT REVIEW.  DURING THE TIME PRIOR TO JUDICIAL DETERMINATION, THE
RESTRAINT ALTERED THE STATUS QUO.  PETITIONER WAS FORCED TO FORGO THE
INITIAL DATES PLANNED FOR THE ENGAGEMENT AND TO SEEK TO SCHEDULE THE
PERFORMANCE AT A LATER DATE.  THE DELAY AND UNCERTAINTY INEVITABLY
DISCOURAGED USE OF THE FORUM. 

THE PROCEDURAL SHORTCOMINGS THAT FORM THE BASIS FOR OUR DECISION ARE
UNRELATED TO THE STANDARD THAT THE BOARD APPLIED.  WHATEVER THE REASONS
MAY HAVE BEEN FOR THE BOARD'S EXCLUSION OF THE MUSICAL, IT COULD NOT
ESCAPE THE OBLIGATION TO AFFORD APPROPRIATE PROCEDURAL SAFEGUARDS.  WE
NEED NOT DECIDE WHETHER THE STANDARD OF OBSCENITY APPLIED BY
RESPONDENTS OR THE COURTS BELOW WAS SUFFICIENTLY PRECISE OR
SUBSTANTIVELY CORRECT, OR WHETHER THE PRODUCTION IS IN FACT OBSCENE. 
SEE HAMLING V. UNITED STATES, 418 U.S. 87 (1974); JENKINS V. GEORGIA,
418 U.S. 153 (1974); LEWIS V. CITY OF NEW ORLEANS, 415 U.S. 130 (1974);
MILLER V. CALIFORNIA, 413 U.S. 15 (1973); GOODING V. WILSON, 405 U.S.
518 (1972).  THE STANDARD, WHATEVER IT MAY BE, MUST BE IMPLEMENTED
UNDER A SYSTEM THAT ASSURES PROMPT JUDICIAL REVIEW WITH A MINIMAL
RESTRICTION OF FIRST AMENDMENT RIGHTS NECESSARY UNDER THE
CIRCUMSTANCES. 

                             REVERSED. 

/1/ TWICE PREVIOUSLY, PETITIONER INFORMALLY HAD ASKED PERMISSION TO
USE THE TIVOLI, AND AHD BEEN REFUSED.  IN OTHER CITIES, IT HAD
ENCOUNTERED SIMILAR RESISTANCE AND HAD SUCCESSFULLY SOUGHT INJUNCTIONS
ORDERING LOCAL OFFICIALS TO PERMIT USE OF MUNICIPAL FACILITIES.  SEE
SOUTHEASTERN PROMOTIONS, LTD. V. CITY OF MOBILE, 457 F. 2D 340 (CA5
1972); SOUTHEASTERN PROMOTIONS, LTD. V. CITY OF WEST PALM BEACH, 457 F.
2D 1016 (CA5 1972); SOUTHEASTERN PROMOTIONS, LTD. V. OKLAHOMA CITY, 459
F. 2D 282 (CA10 1972); SOUTHEASTERN PROMOTIONS, LTD. V. CITY OF
CHAROLTTE, 333 F. SUPP. 345 (WDNC 1971); SOUTHEASTERN PROMOTIONS, LTD.
V. CITY OF ATLANTA, 334 F. SUPP. 634 (ND GA. 1971).  SEE ALSO P.B.I.C.,
INC. V. BYRNE, 313 F. SUPP. 757 (MASS. 1970), VACATED AND REMANDED FOR
FURTHER CONSIDERATION, 413 U.S. 905 (1973).  BUT SEE SOUTHEASTERN
PROMOTIONS, LTD. V. OKLAHOMA CITY, CIVIL ACTION NO. 72 - 105 (WD OKLA.
MAR. 27, 1972), REV'D, 459 F. 2D 282, SUPRA. 

THE MUSICAL HAD BEEN PRESENTED IN TWO TENNESSEE CITIES, MEMPHIS AND
NASHVILLE. 

/2/ CODE OF THE CITY OF CHATTANOOGA 2 - 238.  THE BOARD'S MEMBERS
ARE APPOINTED BY THE MAYOR AND CONFIRMED BY THE CITY'S BOARD OF
COMMISSIONERS.  2 - 237.  THE CHAIRMAN, RESPONDENT CONRAD, IS
COMMISSIONER OF PUBLIC UTILITIES, GROUNDS, AND BUILDINGS.  2 - 236. 

/3/ NEITHER DID IT FILE AT THAT TIME A FORMAL MOTION TO DISMISS. 
THAT MOTION WAS MADE LATER, ON NOVEMBRE 22, SOME TIME AFTER THE INITIAL
HEARING.  AN ANSWER WAS FINALLY FILED, PURSUANT TO COURT ORDER, ON
MARCH 31, 1972. 

/4/ THE MEMORIAL AUDITORIUM, COMPLETED IN 1924, WAS DEDICATED TO THE
MEMORY OF CHATTANOOGA CITIZENS WHO HAD "OFFERED THEIR LIVES" IN WORLD
WAR I. THE BOOKLET REFERRED TO IS ENTITLED SOUVENIR OF DEDICATION OF
SOLDIERS & SAILORS AUDITORIUM CHATTANOOGA, TENN.  IT CONTAINS THE
FOLLOWING: 

" IT WILL BE (THE BOARD'S) ENDEAVOR TO MAKE (THE AUDITORIUM) THE
COMMUNITY CENTER OF CHATTANOOGA; WHERE CIVIC, EDUCATIONAL, RELIGIOUS,
PATROIOTIC AND CHARITABLE ORGANIZAITONS AND ASSOCIATIONS MAY HAVE A
COMMON MEETING PLACE TO DISCUSS AND FURTHER THE UPBUILDING AND GENERAL
WELFARE OF THE CITY AND SURROUNDING TERRITORY. 

" IT WILL NOT BE OPERATED FOR PROFIT, AND NO EFFORT TO OBTAIN
FINANCIAL RETURNS ABOVE THE ACTUAL OPERATING EXPENSES WILL BE
PERMITTED.  INSTEAD ITS PURPOSE WILL BE DEVOTED FOR CULTURAL
ADVANCEMENT, AND FOR CLEAN, HEALTHFUL, ENTERTAINMENT WHICH WILL MAKE
FOR THE UPBUILDING OF A BETTER CITIZENSHIP."  EXHIBIT 2, P. 40. 

/5/ CHATTANOOGA CODE:  " SEC. 6 - 4.  OFFENSIVE, INDECENT
ENTERTAINMENT. 

" IT SHALL BE UNLAWFUL FOR ANY PERSON TO HOLD, CONDUCT OR CARRY ON,
OR TO CAUSE OR PERMIT TO BE HELD, CONDUCTED OR CARRIED ON ANY MOTION
PICTURE EXHIBITION OR ENTERTAINMENT OF ANY SORT WHICH IS OFFENSIVE TO
DECENCY, OR WHICH IS OF AN OBSCENE, INDECENT OR IMMORAL NATURE, OR SO
SUGGESTIVE AS TO BE OFFENSIVE TO THE MORAL SENSE, OR WHICH IS
CALCULATED TO INCITE CRIME OR RIOT."  " SEC. 25 - 28.  INDECENT
EXPOSURE AND CONDUCT. 

" IT SHALL BE UNLAWFUL FOR ANY PERSON IN THE CITY TO APPEAR IN A
PUBLIC PLACE IN A STATE OF JUDITY, OR TO BATHE IN SUCH STATE IN THE
DAYTIME IN THE RIVER OR ANY BAYOU OR STREAM WITHIN THE CITY WITHIN
SIGHT OF ANY STREET OR OCCUPIED PREMISES; OR TO APPEAR IN PUBLIC IN AN
INDECENT OR LEWD DRESS, OR TO DO ANY LEWD, OBSCENE OR INDECENT ACT IN
ANY PUBLIC PLACE."  TENN.  CODE ANN. (SUPP. 1971):  "39 - 1013.  SALE
OR LOAN OF MATERIAL TO MINOR--INDECENT EXHIBITS.--IT SHALL BE
UNLAWFUL: 

"(A) FOR ANY PERSON KNOWINGLY TO SELL OR LOAN FOR MONETARY
CONSIDERATION OR OTHERWISE EXHIBIT OR MAKE AVAILABLE TO A MINOR: 

"(1) ANY PICTURE, PHOTOGRAPH, DRAWING, SCULPTURE, MOTION PICTURE
FLIM, OR SIMILAR VISUAL REPRESENTATION OR IMAGE OF A PERSON OR PORTION
OF THE HUMAN BODY, WHICH DEPICTS NUDITY, SEXUAL CONDUCT, EXCESS
VIOLENCE, OR SADO-MASOCHISTIC ABUSE, AND WHICH IS HARMFUL TO MINORS; 

"(2) ANY BOOK, PAMPHLET, MAGAZINE, PRINTED MATTER, HOWEVER
REPRODUCED, OR SOUND RECORDING, WHICH CONTAINS ANY MATTER ENUMERATED IN
PARAGRAPH (1) HEREOF ABOVE, OR WHICH CONTAINS EXPLICIT AND DETAILED
VERBAL DESCRIPTIONS OR NARRATIVE ACCOUNTS OF SEXUAL EXCITEMENT, SEXUAL
CONDUCT, EXCESS VIOLENCE, OR SADO-MASOCHISTIC ABUSE, AND WHICH IS
HARMFUL TO MINORS; 

"(B) FOR ANY PERSON KNOWINGLY TO EXHIBIT TO A MINOR FOR A MONETARY
CONSIDERATION, OR KNOWINGLY TO SELL T A MINOR AN ADMISSION TICKET OR
PASS OR OTHERWISE TO ADMIT A MINOR TO PREMISES WHEREON THERE IS
EXHIBITED A MOTION PICTURE, SHOW OR OTHER PRESENTATION WHICH, IN WHOLE
OR IN PART, DEPICTS NUDITY, SEXUAL CONDUCT, EXCESS VIOLENCE, OR SADO
MASOCHISTIC ABUSE, AND WHICH IS HARMFUL TO MINORS."  "39 - 3003. 
OBSCENE MATERIAL--KNOWINGLY SELLING, DISTRIBUTING OR EXHIBITING--
PENALTY.--IT SHALL BE A MISDEMEANOR FOR ANY PERSON TO KNOWINGLY SELL,
DISTRIBUTE, DISPLAY, EXHIBIT, POSSESS WITH THE INTENT TO SELL,
DISTRIBUTE, DISPLAY OR EXHIBIT; OR TO PUBLISH, PRODUCE OR OTHERWISE
CREATE WITH THE INTENT TO SELL, DISTRIBUTE, DISPLAY OR EXHIBIT ANY
OBSCENE MATERIAL."     SUBSEQUENT TO OUR GRANT OF THE PETITION FOR
CERTIORARI IN THIS CASE, THE SUPREME COURT OF TENNESSEE HELD THAT 39 -
3007 OF THE TENNESSEE CODE, WHICH DEFINED "OBSCENE MATERIAL," AS THOSE
WORDS WERE USED IN 39 - 3003 AND RELATED SECTIONS, WAS UNCONSTITUTIONAL
FOR FAILURE TO SATISFY THE SPECIFICITY REQUIREMENTS OF MILLER V.
CALIFORNIA, 413 U.S. 15 (1973).  ART THEATER GUILD, INC. V. STATE EX
REL.  RHODES, 510 S.W. 2D 258 (1974).  THEREAFTER, A NEW OBSCENITY
STATUTE, ACTS 1974 (ADJ.  S), C. 510, WAS ENACTED BY THE TENNESSEE
LEGISLATURE; 14 OF THAT ACT SPECIFICALLY REPEALED THE ABOVE QUOTED 39 -
3003. 

/6/ RESPONDENTS ALSO CONTENDED THAT PRODUCTION OF THE MUSICAL WOULD
VIOLATE THE STANDARD LEASE THAT PETITIONER WOULD BE REQUIRED TO SIGN. 
THE RELEVANT PROVISION OF THAT LEASE READS: 

" THIS AGREEMENT IS MADE AND ENTERED INTO UPON THE FOLLOWING EXPRESS
COVENANTS AND CONDITIONS, ALL AND EVERY ONE OF WHICH THE LESSEE HEREBY
COVENANTS AND AGREES TO AND WITH THE LESSOR TO KEEP AND PERFORM: 

"1.  THAT SAID LESSEE WILL COMPLY WITH ALL LAWS OF THE UNITED STATES
AND OF THE STATE OF TENNESSEE, ALL ORDINANCES OF THE CITY OF
CHATTANOOGA, AND ALL RULES AND REQUIREMENTS OF THE POLICE AND FIRE
DEPARTEMENTS OR OTHER MUNICIPAL AUTHORITIES OF THE CITY OF
CHATTANOOGA."  EXHIBIT 3. 

/7/ WITH RESPECT TO PETITIONER'S MUSICAL, RESPONDENTS'
DETERMINATION WAS THAT THE PRODUCTION WOULD NOT BE "IN THE BEST
INTEREST OF THE COMMUNITY."  THAT DETERMINATION MAY HAVE BEEN GUIDED BY
OTHER CEITERIA:  (1) THEIR OWN REQUIREMENT, IN THE WORDS OF RESPONDENT
CONRAD, THAT A PRODUCTION BE "CLEAN AND HEALTHFUL AND CULTURALLY
UPLIFTING," APP. 25; OR (2) THE PROVISIONS OF THE STATUTES AND
ORDINANCES PROHIBITING PUBLIC NUDITY AND OBSCENITY.  WHETHER OR NOT
THEIR EXERCISE OF DISCRETION WAS SUFFICIENTLY CONTROLLED BY LAW,
SUTTLESWORTH V. BIRMINGHAM, 394 U.S. 147 (1969), THERE CAN BE NO DOUBT
THAT APPROVAL OF AN APPLICATION REQUIRED SOME JUDGMENT AS TO THE
CONTENT AND QUALITY OF THE PRODUCTION. 

/8/ ALSO IMPORTANT, THOUGH UNESSENTIAL TO OUR CONCLUSION, ARE THE
CLASSIFICATORY ASPECTS OF THE BOARD'S DECISION.  A LICENSING SYSTEM
NEED NOT EFFECT TOTAL SUPPRESSION IN ORDER TO CREATE A PRIOR
RESTRAINT.  IN INTERSTATE CIRCUIT V. DALLAS, 390 U.S. 676, 688 (1968),
IT WAS OBSERVED THAT THE EVILS ATTENDANT ON PRIOR RESTRAINT "ARE NOT
RENDERED LESS OBJECTIONABLE BECAUSE THE REGULATION OF EXPRESSIONIS ONE
OF CLASSIFICATION RATHER THAN DIRECT SUPPRESSION."  IN THAT CASE, THE
COURT HELD THAT A PRIOR RESTRAINT WAS CREATED BY A SYSTEM WHEREBY AN
ADMINISTRATIVE BOARD IN TEXAS CLASSIFIED FILMS AS "SUITABLE FOR YOUNG
PERSONS" OR "NOT SUITABLE FOR YOUNG PERSONS."  THE "NOT SUITABLE" FILMS
WERE NOT SUPPRESSED, BUT EXHIBITORS WERE REQUIRED TO HAVE SPECIAL
LICENSES AND TO ADVERTISE THEIR CLASSIFICATION IN ORDER TO SHOW THEM. 
SIMILARLY, IN BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58 (1963), THE
COURT HELD THAT A SYSTEM OF "INFORMAL CENSORSHIP" WORKING BY
EXHORTATION AND ADVICE SUFFICIENTLY INHIBITED EXPRESSION TO CONSTITUTE
A PRIOR RESTRAINT AND WARRANT INJUNCTIVE RELIEF.  THERE, THE COURT HELD
UNCONSTITUTIONAL A SYSTEM IN WHICH A COMMISSION WAS CHARGED WITH
REVIEWING MATERIAL "MANIFESTLY TENDING TO THE CORRUPTION OF THE YOUTH";
IT DID NOT HAVE DIRECT REGULATORY OR SUPRESSING FUNCTIONS, BUT OPERATED
BY PERSUASION AND INTIMIDATION, AND THESE INFORMAL METHODS WERE FOUND
EFFECTIVE. 

IN THE PRESENT CASE, THE BOARD CLASSIFIED THE MUSICAL AS UNFIT FOR
SHOWING IN MUNICIPAL FACILITIES.  IT DID NOT MAKE A POINT OF
PUBLICIZING ITS FINDING THAT " HAIR" WAS NOT IN THE "BEST INTEREST" OF
THE PUBLIC, BUT THE CLASSIFICATION STOOD AS A WARNING TO ALL CONCERNED,
PRIVATE THEATER OWNERS AND GENERAL PUBLIC ALIKE.  THERE IS LITTLE IN
THE RECORD TO INDICATE THE EXTENT TO WHICH THE BOARD'S ACTION MAY HAVE
AFFECTED PETITIONER'S ABILITY TO OBTAIN A THEATER AND ATTRACT AN
AUDIENCE.  THE BOARD'S CLASSIFICATION, WHATEVER THE MAGNITUDE OF ITS
EFFECT, WAS NOT UNLIKE THAT IN INTERSTATE CIRCUIT AND BANTAM BOOKS. 

/9/ THIS CASE IS CLEARLY DISTINGUISHABLE FROM HELLER V. NEW YORK,
413 U.S. 483 (1973).  THERE, STATE AUTHORITIES SEIZED A COPY OF A FILM,
TEMPORARILY, IN ORDER TO PRESERVE IT AS EVIDENCE.  ID., AT 490.  THE
COURT HELD TAHT THERE WAS NOT "ANY FORM OF 'FINAL RESTRAINT," IN THE
SENSE OF BEING ENJOINED FROM EXHIBITION OR THREATENED WITH
DESTRUCTION."  IBID.  HERE, THE BOARD DID NOT MERELY DETAIN TEMPORARILY
A COPY OF THE SCRIPT OR LIBRETTO FOR THE MUSICAL.  RESPONDENTS REACHED
A FINAL DECISION TO BAR PERFORMANCE. 

/10/ SEE MONAGHAN, FIRST AMENDMENT " DUE PROCESS," 83 HARV. L. REV.
518, 522 - 524 (1970); EMERSON, THE DOCTRINE OF PRIOR RESTRAINT, 20 LAW
& CONTEMP.  PROB.  648, 656 - 659 (1955). 

/11/ THERE WAS TESTIMONY THAT THE MUSICAL AS PERFORMED DIFFERED
"SUBSTANTIALLY" FROM THE SCRIPT, APP. 79 - 80, AND THAT THE SHOW WAS
VARIED TO FIT THE ANTICIPATED TASTES OF DIFFERENT AUDIENCES IN
DIFFERENT PARTS OF THE COUNTRY.  ID., AT 93.  THE MUSICAL'S NUDE SCENE,
APPARENTLY THE MOST CONTROVERSIAL PORTION, WAS PLAYED UNDER VARYING
CONDITIONS.  NO ACTOR WAS UNDER CONTRACTUAL OBLIGATION TO PERFORM IT,
AND THE NUMBER DOING SO CHANGED FROM ONE PERFORMANCE TO ANOTHER, AS DID
THE LIGHTING, AND THE DURATION OF THE SCENE.  ID., AT 97 - 98, 23. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART AND CONCURRING IN THE RESULT
IN PART. 

WHILE I AGREEE WITH THE COURT'S CONCLUSION THAT THE ACTIONS OF THE
RESPONDENTS CONSTITUTED AN IMPERMISSIBLE PRIOR RESTRAINT UPON THE
PERFORMANCE OF PETITIONER'S ROCK MUSICAL, I AM COMPELLED TO WRITE
SEPARATELY IN ORDER TO EMPHASIZE MY VIEW THAT THE INJURIES INFLICTED
UPON PETITIONER'S FIRST AMENDMENT RIGHTS CANNOT BE TREATED ADEQUATELY
OR AVERTED IN THE FUTURE BY TEH SIMPLE APPLICATION OF A FEW PROCEDURAL
BAND-AIDS.  THE CRITICAL FLAW IN THIS CASE LIES, NOT IN THE ABSENCE OF
PROCEDURAL SAFEGUARDS, BUT RATHER IN THE VERY NATURE OF THE CONTENT
SCREENING IN WHICH RESPONDENTS HAVE ENGAGED. 

THE COURT TODAY TREADS MUCH THE SAME PATH WHICH IT WALKED IN
FREEDMAN V. MARYLAND, 380 U.S. 51 (1965), AND THE SENTIMENT WHICH I
EXPRESSED ON THAT OCCASION REMAINS EQUALLY RELEVANT:  " I DO NOT
BELIEVE ANY FORM OF CENSORSHIP--NO MATTER HOW SPEEDY OR PROLONGED IT
MAY BE--IS PERMISSIBLE."  ID., AT L1 - 62 (CONCURRING OPINION).  SEE
ALSO STAR V. PRELLER, 419 U.S. 956 (1974) (DISSENTING OPINION); TIMES
FLIM CORP. V. CHICAGO, 365 U.S. 43, 78 (1961) (DISSENTING OPINION). 

A MUNICIPAL THEATER IS NO LESS A FORUM FOR THE EXPRESSION OF IDEAS
THAN IS A PUBLIC PARK, OR A SIDEWALK; THE FORMS OF EXPRESSION ADOPTED
IN SUCH A FORUM MAY BE MORE EXPENSIVE AND MORE STRUCTURED THAN THOSE
TYPICALLY SEEN IN OUR PARKS AND STREETS, BUT THEY ARE SURELY NO LESS
ENTITLED TO THE SHELTER OF THE FIRST AMENDMENT.  AS SOON AS MUNICIPAL
OFFICIALS ARE PERMITTED TO PICK AND CHOOSE, AS THEY ARE IN ALL EXISTING
SOCIALIST REGIMES, BETWEEN THOSE PRODUCTIONS WHICH ARE "CLEAN AND
HEALTHFUL AND CULTURALLY UPLIFTING" IN OCNTENT AND THOSE WHICH ARE NOT,
THE PATH IS CLEARED FOR A REGIME OF CENSORSHIP UNDER WHICH FULL VOICE
CAN BE GIVEN ONLY TO THOSE VIEWS WHICH MEET WITH THE APPROVAL OF THE
POWERS THAT BE 

THERE WAS MUCH TESTIMONY IN THE DISTRICT COURT CONCERNING THE
PUNGENT SOCIAL AND POLITICAL COMMENTARY WHICH THEMUSICAL " HAIR" LEVELS
AGAINST VARIOUS SACRED COWS OF OUR SOCIETY:  THE VIETNAM WAR, THE
DRAFT, AND THE PURITANICAL CONVENTIONS OF THE ESTABLISHMENT.  THIS
COMMENTARY IS UNDOUBTEDLY OFFENSIVE TO SOME, BUT ITS CONTRIBUTION TO
SOCIAL CONSCIOUSNESS AND INTELLECTUAL FERMENT IS A POSITIVE ONE.  IN
THIS RESPECT, THE MUSICAL'S OFTEN RIBALD HUMOR AND TRENCHANT SOCIAL
SATIRE MAY SOMEDAY MERIT COMPARISON TO THE MOST HIGHLY REGARDED WORKS
OF ARISTOPHANES, A FELLOW DEBUNKER OF ESTABLISHED TASTES AND RECEIVED
WISDOM, YET ONE WHOSE OFFERINGS WOULD DOUBTLESS MEET WITH A SIMILARLY
COLD RECEPTION AT TEH HANDS OF ESTABLISHMENT CENSORS.  NO MATTER HOW
MANY PROCEDURAL SAFEGUARDS MAY BE IMPOSED, ANY SYSTEM WHICH PERMITS
GOVERNMENTAL OFFICIALS TO INHIBIT OR CONTROL THE FLOW OF DISTURBING AND
UNWELCOME IDEAS TO THE PUBLIC THREATENS SERIOUS DIMINUTION OF THE
BREADTH AND RICHNESS OF OUR CULTURAL OFFERINGS. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

ALTHOUGH IN PART II OF ITS OPINION THE COURT LECTURES ON THE EVILS
OF STANDARDLESS LICENSING SYSTEMS, UNDERSTANDABLY THIS IS NOT THE
ULTIMATE BASIS FOR DECISION.  HOWEVER BROAD DISCRETION THE CHATTANOOGA
AUTHORITIES MAY OTHERWISE HAVE, PLAINLY THEY ARE SUBJECT TO THE LAWS
AGAINST OBSCENITY AND PUBLIC NUDITY, AND THE STANDARD LEASE REQUIRES
THAT PRODUCTIONS SUCH AS " HAIR" NOT VIOLATE THE LAW.  IN THIS RESPECT,
THE LICENSING SYSTEM IS NOT WITHOUT STANDARDS.  AS MIGHT BE EXPECTED,
THEREFORE, THE ISSUE IN THE CASE, AS DEFINED BY TEH DISTRICT COURT AND
THE COURT OF APPEALS, WAS NOT WHETHER LOCAL AUTHORITIES HAD UNDUE
DISCRETION BUT WHETHER THEY CORRECTLY REFUSED TO LICENSE " HAIR" ON THE
GROUND THAT THE PRODUCTION WOULD FAIL TO SATISFY " PARAGRAPH (1) OF THE
STANDARD LEASE FORM REQUIRING THE LESSEE TO COMPLY WITH ALL STATE AND
LOCAL LAWS IN ITS USE OF THE LEASED PREMISES," THESE LAWS BEING THE
LAWS AGAINST OBSCENITY, PUBLIC NUDITY, AND DISPLAY OF SEXUALLY ORIENTED
MATERIALS TO MINORS.  IN SO FRAMING THE QUESTION, THE COURTS BELOW
REFLECTED THE PRAYER OF THE COMPLAINT, APP. 13 - 14, WHICH SOUGHT A
DECLARATION THAT THE MUSICAL WAS PROTECTED EXPRESSION UNDER THE FIRST
AMENDMENT, DID NOT VIOLATE ANY CITY ORDINANCE, AND WAS NOT OBSCENE.  AN
INJUNCTION REQUIRING LOCAL AUTHORITIES TO MAKE THE MUNICIPAL FACILITIES
AVAILABLE FOR THE PRODUCTION OF " HAIR" WAS ALSO SOUGHT. 

THE DISTRICT COURT AND THE COURT OF APPEALS CONSIDERED THE ISSUE
TENDERED AND HELD THAT THE CONTEMPLATED PRODUCTION OF " HAIR" DID NOT
QUALIFY FOR A LEASE UNDER THE RELEVANT STATE AND LOCAL LAWS.  HERE, THE
MAJORITY DOES NOT ADDRESS THIS QUESTION, BUT NEVERTHELESS REVERSES ON
THE GROUND THAT THE CHATTANOOGA PERMIT SYSTEM IS "LACKING IN
CONSTITUTIONALLY REQUIRED MINIMAL PROCEDURAL SAFEGUARDS."  ANTE, AT
552.  THE COURT'S UNDERSTANDING OF OUR PRIOR CASES IS UNEXCEPTIONABLE,
BUT REACHING A DECISION ON THIS GROUND IS INAPPROPRIATE.  IN THE FIRST
PLACE, NO SUCH ISSUE APPEARS TO HAVE BEEN TENDERED TO THE DISTRICT
COURT OR TO HAVE BEEN DECIDED BY EITHER THE DISTRICT COURT OR THE COURT
OF APPEALS.  AS ALREADY INDICATED, THE COMPLAINT SOUGHT A DECLARATION
THAT " HAIR" DID NOT VIOLATE THE RELEVANT ORDINANCES AND STATUTES AS
WELL AS AN INJUNCTION PERMITTING THE USE OF MUNICIPAL FACILITIES FOR
THE SHOWING OF THE MUSICAL.  SECONDLY, HOWEVER INADEQUATE THE
CHATTANOOGA SYSTEM MIGHT BE UNDER FREEDMAN V. MARYLAND, 380 U.S. 51
(1965), THE PARTIES HAVE NOW BEEN TO COURT; AND, AFTER TRIAL, " HAIR"
HAS BEEN HELD VIOLATIVE OF TENNESSEE STATUTES BY BOTH THE DISTRICT
COURT AND THE COURT OF APPEALS.  THIS COURT DOES NOT NOW REVERSE OR
DISAPPROVE THESE DECISIONS IN THIS RESPECT; AND ASSUMING THEIR
CORRECTNESS, AS IS THEREFORE APPROPRIATE, IS IT THE COURT'S INTENTION
IN REVERSING THE JUDGMENT OF THE COURT OF APPEALS TO ORDER THAT "
HAIR," WHICH HAS BEEN HELD OBSCENE AFTER TRIAL, MUST BE ISSUED A
LICENSE FOR SHOWING IN THE MUNICIPAL FACILITIES OF CHATTANOOGA?  IF
THIS IS THE CASE, IT IS A VERY ODD DISPOSITION, ONE WHICH I CANNOT
JOIN.  ON THE RECORD BEFORE US, IT WOULD BE ERROR TO ENTER ANY JUDGMENT
THE EFFECT OF WHICH IS TO REQUIRE THE CHATTANOOGA AUTHORITIES TO PERMIT
THE SHOWING OF " HAIR" IN THE MUNICIPAL AUDITORIUM. 

THE COURT ASSERTS THAT " HAIR" CONTAINS A NUDE SCENE AND THAT THIS
SI "THE MOST CONTROVERSIAL PORTION" OF THE MUSICAL.  THIS ALMOST
COMPLETELY IGNORES THE DISTRICT COURT'S DESCRIPTION OF THE PLAY AS
INVOLVING NOT ONLY NUDITY BUT REPEATED "SIMULATED ACTS OF ANAL
INTERCOURSE, FRONTAL INTERCOURSE, HETEROSEXUAL INTERCOURSE, HOMOSEXUAL
INTERCOURSE, AND GROUP INTERCOURSE...."  /1/ 

GIVEN THIS DESCRIPTION OF " HAIR," THE FIRST AMENDMENT IN MY VIEW
DOES NOT COMPEL MUNICIPAL AUTHORITIES TO PERMIT PRODUCTION OF THE PLAY
IN MUNICIPAL FACILITIES.  WHETHER OR NOT A PRODUCTION AS DESCRIBED BY
THE DISTRICT COURT IS OBSCENE AND MAY BE FORBIDDEN TO ADULT AUDIENCES,
IT IS APPARENT TO ME THAT THE STATE OF TENNESSEE COULD CONSTITUTIONALLY
FORBID EXHIBITION OF THE MUSICAL TO CHILDREN, /2/ GINSBERG V. NEW YORK,
390 U.S. 629 (1968), AND THAT CHATTANOOGA MAY RESERVE ITS AUDITORIUM
FOR PRODUCTIONS SUITABLE FOR EXHIBITION TO ALL THE CITIZENS OF THE
CITY, ADULTS AND CHILDREN ALIKE.  " HAIR" DOES NOT QUALIFY IN THIS
RESPECT, AND WITHOUT HOLDING OTHERWISE, IT IS IMPROVIDENT FOR THE COURT
TO MANDATE THE SHOWING OF "  HAIR" IN THE CHATTANOOGA AUDITORIUM.  /3/ 

/1/ 341 F. SUPP. 465, 472 - 474 (ED TENN. 1972):

        " FINDINGS OF FACT 

" TURNING FIRST TO THE ISSUE OF OBSCENITY, THE SCRIPT, LIBRETTO,
STAGE INSTRUCTIONS, MUSICAL RENDITIONS, AND THE TESTIMONY OF THE
WITNESSES REFLECT THE FOLLOWING RELEVANT MATTERS (IT SHOULD BE NOTED
THAT THE SCRIPT, LIBRETTO, AND STAGE INSTRUCTIONS DO NOT INCLUDE BUT A
SMALL PORTION OF THE CONDUCT HEREINAFTER DESCRIBED AS OCCURING IN THE
PLAY): 

THE SOUVENIR PROGRAM AS FORMERLY DISTRIBUTED IN THE LOBBY (EXHIBIT
NO. 1) IDENTIFIED THE PERFORMERS BY PICTURE AND BIOGRAPHICAL
INFORMATION, ONE FEMALE PERFORMER IDENTIFYING HERSELF AS FOLLOWS: 

"' HOBBIES ARE PICKING MY NOSE, FUCKING, SMOKING DOPE, ASTRO
PROJECTION.  ALL THAT I AM OR EVER HOPE TO BE, I OWE TO MY MOTHER.' 

" IT WAS TESTIFIED THAT DISTRIBUTION OF THIS PROGRAM HAD NOW BEEN
DISCONTINUED.  PRIOR TO THE OPENING OF THE PLAY, AND TO THE
ACCOMPANIMENT OF MUSIC APPROPRIATE TO THE OCCASION, A 'TRIBE' OF NEW
YORK 'STREET PEOPLE' START GATHERING FOR THE COMMENCEMENT OF THE
PERFORMANCE.  IN VIEW OF THE AUDIENCE THE PERFORMERS STATION THEMSELVES
IN VARIOUS PLACES SOME MINGLING WITH THE AUDIENCE, WITH A FEMALE
PERFORMER TAKING A SEATED POSITION ON CENTER STATE WITH HER LEGS SPREAD
WIDE TO EXPOSE TO THE AUDIENCE HER GENITAL AREA, WHICH IS COVERED WITH
THE DESIGN OF A CHERRY.  THUS THE STAGE IS SET FOR ALL THAT FOLLOWS. 
THE PERFORMANCE THEN BEGINS TO THE WORDS AND MUSIC OF THE SONG '
AQUARIUS,' THE MELODY OF WHICH, IF NOT THE WORDS, HAVE BECOME
NATIONALLY, IF NOT INTERNATIONALLY, POPULAR, ACCORDING TO THE
EVIDENCE.  THE THEME OF THE SONG IS THE COMING OF A NEW AGE, THE AGE OF
LOVE, THE AGE OF ' AQUARIUS.'  FOLLOWING THIS ONE OF THE STREET PEOPLE,
BURGER, INTRODUCES HIMSELF BY VARIOUS PREFIXES TO HIS NAME, INCLUDING '
UP YOUR BURGER,' ACCOMPANIED BY AN ANAL FINGER GESTURE AND
'PITTSBURGER', ACCOMPANIED BY AN UNDERARM GESTURE.  HE THEN REMOVES HIS
PANTS AND DRESSED ONLY IN JOCKY SHORTS IDENTIFIES HIS GENITALS BY THE
LINE, ' WHAT IS THE GOD-DAMMED THING?  3,000 POUNDS OF NAVAJO JEWELRY? 
HA]  HA]  HA]'  THROWING HIS PANTS INTO THE AUDIENCE HE THEN PROCEEDDS
TO MINGLE WITH THE AUDIENCE AND, SELECTING A FEMALE VIEWER, EXCLAIMS, '
I'LL BET YOU'RE SCARED SHITLESS.' 

" BURGER THEN SINGS A SONG, ' LOOKING FOR MY DONNA,' AND THE TRIBE
CHANTS A LIST OF DRUGS BEGINNING WITH 'HASHISH' AND ENDING WITH '
METHADRINE, SEX, YOU, WOW]'  (EXHIBIT NO. 4, &. 1 - 5) ANOTHER MALE
CHARACTER THEN SINGS THE LYRIC. 

     "' SODOMY, FELLATIO, CUNNILINGUS, PEDERASTY-- FATHER, WHY DO

THESE WORDS SOUND SO NASTY?  MASTURBATION CAN BE FUN.  JOIN THE

  HOLY ORGY, KAMA SULTRA, EVERYONE.'  (EXHIBIT NO. 4, P. 1 - 5) 

" THE PLAY THEN CONTINUES WITH ACTION, SONGS, CHANTS, AND DIALOUGE
MAKING REFERENCE BY ISOLATED WORDS, BROKEN SENTENCES, RHYME, AND RAPID
CHANGES TO SUCH DIVERSE SUBJECTS AS LOVE, PEACE, FREEDOM, WAR, RACISM,
AIR POLLUTION, PARENTS, THE DRAFT, HAIR, THE FLAG, DRUGS, AND SEX.  THE
STORY LINE GRADUALLY CENTERS UPON THE CHARACTER CLAUDE AND HIS RESPONSE
AND THE RESPONSE OF THE TRIBE TO HIS HAVING RECEIVED A DRAFT NOTICE. 
WHEN OTHERS SUGGEST HE BURNHIS DRAFT CARD, HE CAN ONLY BRING HIMSELF TO
URINATE UPON IT.  THE FIRST ACT ENDS WHEN ALL PERFORMERS, MALE AND
FEMALE, APPEAR NUDE UPON THE STATE, THE NUDE SCENE BEING HAD WITHOUT
DIALOGUE AND WITHOUT REFERENCE TO DIALOGUE.  IT IS ALSO WITHOUT MENTION
IN THE SCRIPT.  ACTORS SIMULATING POLICE THEN APPEAR IN THE AUDIENCE
AND ANNOUNCE THAT THEY ARE UNDER ARREST FOR WATCHING THIS 'LEWD,
OBSCENE SHOW.' 

" THE SECOND ACT CONTINEUS WITH SONG AND DIALOGUE TO DEVELOP THE
STORY OF CLUDE'S DRAFT STATUS, WITH REFERENCE INTERSPERSED TO SUCH
DIVERSE TOPICS AS INTERRACIAL LOVE, A DRUG 'TRIP,' IMPERSONATION OF
VARIOUS FIGURES FROM AMERICAN HISTORY, ( RELIGION, WAR, AND SEX.  THE
PLAY ENDS WITH CLAUDE'S DEATH AS A RESULT OF THE DRAFT AND THE STREET
PEOPLE SINGING THE SONG, ' LET THE SUNSHINE IN,' A SONG THE TESTIMONY
REFLECTS HAS LIKEWISE BECOME POPULAR OVER THE NATION. 

" INTERSPERSED THROUGHTOUT THE PLAY, AS REFLECTED IN THE SCRIPT, IS
SUCH 'STREET LANGUAGE' AS 'ASS' (EXHIBIT NO. 4, PP. 1 - 20, 21 AND 2 -
16), 'FART' (EXHIBIT NO. 4, P. 1 - 26), AND REPEATED USE OF THE WORDS
'FUCK' ( ) AND THE FOUR LETTER WORD FOR EXCRETION (EXHIBIT NO. 4, PP. 1
- 7 , 9 AND 41).  IN ADDITION, SIMILAR LANGUAGE AND POSTERS CONTAINING
SUCH LANGUAGE WERE USED ON STAGE BUT NOT REFLECTED IN THE SCRIPT. 

" ALSO, THROUGHOUT THE PLAY, AND NOT REFLECTED IN THE SCRIPT, ARE
REPEATED ACTS OF SIMULATED SEXUAL INTERCOURSE.  THESE WERE TESTIFIED TO
BY EVERY WITNESS WHO HAD SEEN THE PLAY.  THEY ARE OFTEN UNRELATED TO
ANY DIALOGUE AND ACCORDINGLY COULD NOT BE PLACED WITH ACCURACY IN THE
SCRIPT.  THE OVERWHELMING EVIDENCE REFLECTS THAT SIMULATED ACTS OF ANAL
INTERCOURSE, FRONTAL INTERCOURSE, HETEROSEXUAL INTERCOURSE, HOMOSEXUAL
INTERCOURSE, AND GROUP INTERCOURSE ARE COMMITTED THROUGHOUT THE PLAY,
OFTEN WITHOUT REFERENCE TO ANY DIALOGUE, SONG, OR STORY LINE IN THE
PLAY.  SUCH ACTS ARE COMMITTED BOTH STANDING UP AND LYING DOWN,
ACCOMPANIED BY ALL THE BODILY MOVEMENTS INCLUDED IN SUCH ACTS, ALL THE
WHILE THE ACTORS AND ACTRESSES ARE IN CLOSE BODILY CONTACT.  AT ONE
POINT THE CHARACTER BURGER PERFORMS 

     "( LINCOLN IS REGALED WITH THE FOLLOWING LYRICS:  ' I'S FREE

  NOW THANKS TO YOU, MASSA LINCOLN, EMANICPATOR OF THE SLAVE, YEAH

YEAH, YEAH]  EMIANCI--MOTHER FUCKING--PATER OF THE SLAVE, YEAH,

  YEAH, YEAH]  EMANCI--MOTHER FUCKING--PATER OF THE SLAVE, YEAH,

  YEAH, YEAH]'  WITH LINCOLN RESPONDING, ' BANG MY ASS ... I AIN'T

  DYING FOR NO WHITE MAN]'" 

     "( ) A WOMAN TAKING HER DEPARTURE SAYS TO THE TRIBE, ' FUCK

OFF, KIDS.'  (EXHIBIT NO. 4, P. 1 - 35).  THE FOLLOWING DIALOGUE

  OCCURS AS CLAUDE NEARS HIS DEATH SCENE: 

     "' BURGER:  I HATE THE FUCKING WORLD, DON'T YOU? 

     "' CLUDE:  I HATE THE FUCKING WORLD, I HATE THE FUCKING
WINTER,

 I HATE THESE FUCKING STREETS. 

     "' BURGER:  I WISH THE FUCK IT WOULD SNOW AT LEAST. 

     "' CLAUDE:  YEAH, I WISH THE FUCK IT WOULD.  "' CLAUDE:  OH,

  FUCK]  "' BURGER; OH, FUCKY, FUCK, FUCK]'  (EXHIBIT NO. 4, P. 2-

  22)"

A FULL AND COMPLETE SIMULATION OF MASTURBATION WHILE USING A RED
MICROPHONE PLACED IN HIS CROTCH TO SIMULATE HIS GENITALS.  THE EVIDENCE
AGAIN REFLECTS THAT THIS IS UNRELATED TO ANY DIALOGUE THEN OCCURRING IN
THE PLAY.  THE EVIDENCE FURTHER REFLECTS TATH REPEATED ACTS OF TAKING
HOLD OF OTHER ACTORS' GENITALS OCCUR, AGAIN WITHOUT REFERENCE TO THE
DIALOGUE.  WHILE THREE FEMALE ACTRESSES SING A SONG REGARDING
INTERRACIAL LOVE, THREE MALE ACTORS LIE ON THE FLOOR IMMEDIATELY BELOW
THEM REPEATEDLY THRUSTING THEIR GENITALS AT THE SINGERS.  AT ANOTHER
POINT IN THE SCRIPT (EXHIBIT NO. 4, P. 2 - 22) THE ACTOR CLAUDE
PRETENDS TO HAVE LOST HIS PENIS.  THE ACTION ACCOMPANYING THIS LINE IS
TO SEARCH FOR IT IN THE MOUTHS OF OTHER ACTORS AND ACTRESSES." 

/2/ THE PRODUCER, DIRECTOR, AND PRESIDENT OF PETITIONER,
SOUTHEASTERN PROMOTIONS, LTD., DID NOT INSIST IN THE DISTRICT COURT
THAT PETITIONER WAS ENTITLED TO EXHIBIT THE PLAY TO MINORS CONTRARY TO
LOCAL LAW.  HIS TESTIMONY, TR. 7 - 8, WAS THAT IF THERE WAS "A STANDING
ORDINANCE RELATED TO THE EXCLUSION OF MINORS, WE WOULD CERTAINLY ABIDE
BY IT...." 

/3/ AS APPEARS FROM TR. OF ORAL ARG. 16 - 17, PETITIONER'S COUNSEL
WAS OF THE VIEW THAT THE ISSUE OF OBSCENITY MUST BE REACHED: 

" SO IT WOULD APPEAR THAT THE QUESTION OF OBSCENITY IS NOT AVOIDED
EVEN IF THE COURT AGREES WITH PETITIONER THAT THE STANDARDS USED WERE
ULTIMATELY BAD.  SINCE ON REMAND THE RESPONDENTS ARE GOING TO PRESS
OBSCENITY AS THE BASIS FOR DENYING ACCESS TO HAIR AND THE LOWER COURTS
ARE GOING TO SUSTAIN THAT POSITION, WE THEREFORE URGE THIS COURT TO
ADDRESS ITSELF TO THE QUESTION OF THE APPROPRIATE STANDARDS, NOT ONLY
TO PREVENT A WASTE OF RESOURCES AND JUDICIAL ECONOMY, BUT BECAUSE OF
WIDESPREAD PUBLIC INTEREST IN RESOLVING THIS ISSUE.  THERE ARE VERY FEW
PLAYS THAT CAN AFFORD THE EXPENSE OF LITIGATION OF ALL THE WAY TO THIS
COURT." 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE COURT TREATS THIS CASE AS IF IT WERE ON ALL FOURS WITH FREEDMAN
V. MARYLAND, 380 U.S. 51 (1965), WHICH IT IS NOT.  FREEDMAN DEALT WITH
THE EFFORTS OF THE STATE OF MARYLAND TO PROHIBIT THE PETITIONER IN THAT
CASE FROM SHOWING A FILM "AT HIS BALTIMORE THEATER," ID., AT 52. 
PETITIONER HERE DID NOT SEEK TO SHOW THE MUSICAL PRODUCTION " HAIR" AT
ITS CHATTANOOGA THEATER, BUT RATHER AT A CHATTANOOGA THEATER OWNED BY
CITY OF CHATTANOOGA. 

THE COURT GLOSSES OVER THIS DISTINCTION BY TREATING A COMMUNITY
OWNED THEATER AS IF IT WERE THE SAME AS A CITY PARK OR CITY STREET,
WHICH IT IS NOT.  THE COURT'S DECISIONS HAVE RECOGNIZED THAT CITY
STREETS AND PARKS ARE TRADITIONALLY OPEN TO THE PUBLIC, AND THAT
PERMITS OR LICENSES TO USE THEM ARE NOT ORDINARILY REQUIRED.  "(ONE WHO
IS RIGHTFULLY ON A STREET WHICH THE STATE HAS LEFT OPEN TO THE PUBLIC
CARRIES WITH HIM THERE AS ELSEWHERE THE CONSTITUTIONAL RIGHT TO EXPRESS
HIS VIEWS IN AN ORDERLY FASHION.  THIS RIGHT EXTENDS TO THE
CONNUMICATION OF IDEAS BY HANDBILLS AND LITERATURE AS WELL AS BY THE
SPOKEN WORD."  JAMISON V. TEXAS, 318 U.S. 413, 416 (1943).  THE COURT
HAS THEREFORE HELD THAT WHERE MUNICIPAL AUTHORITIES HAVE SOUGHT TO
EXACT A LICENSE OR PERMIT FOR THOSE WHO WISHED TO USE PARKS OR STREETS
FOR THE PURPOSE OF EXERCISING THEIR RIGHT OF FREE SPEECH, THE STANDARDS
GOVERNING THE LICENSING AUTHORITY MUST BE OBJECTIVE, DEFINITE, AND
NONDISCRIMINATORY.  SHUTTLESWORTH V. CITY OF BIRMINGHAM, 394 U.S. 147
(1969).  BUT UNTIL THIS CASE THE COURT HAS NOT EQUATED A PUBLIC
AUDITORIUM, WHICH MUST OF NECESSITY SCHEDULE PERFORMANCES BY A PROCESS
OF INCLUSION AND EXCLUSION, WITH PUBLIC STREETS AND PARKS. 

IN PICKERING V. BOARD OF EDUCATION, 391 U.S. 563, 568 (1968), THE
COURT RECOGNIZED THAT THE GOVERNMENT AS AN EMPLOYER WAS TO BE VIEWED
DIFFERENTLY THAN THE GOVERNMENT AS A LAWMAKER FOR THE CITIZENRY IN
GENERAL: 

" IT CANNOT BE GAINSAID THAT THE STATE HAS INTERESTS AS AN EMPLOYER
IN REGULATING THE SPEECH OF ITS EMPLOYEES THAT DIFFER SIGNIFICANTLY
FROM THOSE IT POSSESSES IN CONNECTION WITH REGULATION OF THE SPEECH OF
THE CITIZENRY IN GENERAL." 

SEE, E.G., COMMUNICATIONS ASSOCIATION V. DOUDS, 339 U.S. 382, 402 -
403 (1950); UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 95 (1947);
KONIGSBERG V. STATE BAR, 366 U S. 366 U.S. 36, 50 - 51 (1961).  HERE WE
DEAL WITH MUMICIPAL ACTION BY THE CITY OF CHATTANOOGA, NOT PROHIBITING
OR PENALIZING THE EXPRESSION OF VIEWS IN DRAMATIC FORM BY CITIZENS AT
LARGE, BUT RATHER MANAGING ITS MUNICIPAL AUDITORIUM.  IN ADDERLEY V.
FLORIDA, 385 U.S. 39, 47 - 48 (1966), THE COURT SAID: 

" THE STATE, NO LESS THAN PRIVATE OWNER OF PROPERTY, HAS POWER TO
PRESERVE THE PROPERTY UNDER ITS CONTROL FOR THE USE TO WHICH IT IS
LAWFULLY DEDICATED.  FOR THIS REASON THERE IS NO MERIT TO THE
PETITIONERS' ARGUMENT THAT THEY HAD A CONSTITUTIONAL RIGHT TO STAY ON
THE PROPERTY.... THE UNTIED STATES CONSTITUTION DOES NOT FORBID A STATE
TO CONTROL THE USE OF ITS OWN PROPERTY FOR ITS OWN LAWFUL
NONDISCRIMINATORY PURPOSE." 

THE COURT AVOIDS THE IMPACT OF CASES SUCH AS ADDERLEY BY INSISTING
THAT THE MUNICIPAL AUDITORIUM AND THE THEATER WERE "PUBLIC FORUMS
DESIGNED FOR AND DEDICATED TO EXPRESSIVE ACTIVITIES," ANTE, AT 555, AND
THAT THE REJECTION OF PETITIONER'S APPLICATION WAS NOT BASED ON "ANY
REGULATION OF TIME, PLACE, OR MANNER RELATED TO THE NATURE OF THE
FACILITY OR APPLICATIONS FROM OTHER USERS."  IBID.  BUT THE APPARENT
EFFECT OF THE COURT'S DECISION IS TO TELL THE MANAGERS OF MUNICIPAL
AUDITORIUMS THAT THEY MAY EXERCISE NO SELECTIVE ROLE WHATSOEVER IN
DECIDING WHAT PERFORMANCES MAY BE BOOKED.  THE AUDITORIUMS IN QUESTION
HERE HAVE HISTORICALLY BEEN DEVOTED TO "CLEAN, HEALTHFUL
ENTERTAINMENT"; /1/ THEY HAVE ACCEPTED ONLY PRODUCTIONS NOT
INAPPROPRIATE FOR VIEWING BY CHILDREN SO THAT THE FACILITIES MIGHT
SERVE AS A PLACE FOR ENTERTAINING THE WHOLE FAMILY.  VIEWED APART FROM
ANY CONSTITUTIONAL LIMITATIONS, SUCH A POLICY WOULD UNDOUBTEDLY RULE
OUT MUCH WORTHWHILE ADULT ENTERTAINMENT.  BUT IF IT IS THE DESIRE OF
THE CITIZENS OF CHATTANOOGA, WHO PRESUMABLY HAVE PAID FOR AND OWN THE
FACILITIES, THAT THE ATTRACTIONS TO BE SHOWN THERE SHOULD NOT BE OF THE
KIND WHICH WOULD OFFEND ANY SUBSTANTIAL NUMBER OF POTENTIAL
THEATERGOERS, I DO NOT THINK THE POLICY CAN BE DESCRIBED AS ARBITRARY
OR UNREASONABLE.  /2/ WHETHER OR NOT THE PRODUCTION OF TH EVERSION OF "
HAIR" HERE UNDER CONSIDERATION IS OBSCENE, THE FINDINGS OF FACT MADE BY
THE DISTRICT COURT AND AFFIRMED ON APPEAL DO INDICATE THAT IT IS NOT
ENTERTAINMENT DESIGNED FOR THE WHOLE FAMILY.  /3/ 

IF EVERY MUNICIPAL THEATER OR AUDITORIUM WHICH IS "DESIGNED FOR AND
DEDICATED TO EXPRESSIVE ACTIVITIES" BECOMES SUBJECT TO THE RULE
ENUCIATED BY THE COURT IN THIS CASE, CONSEQUENCES UNFORESEEN AND
PERHAPS UNDESIRED BY THE COURT MAY WELL ENSUE.  MAY AN OPERA HOUSE
LIMIT ITS PRODUCTIONS TO OPERS, OR MUST IT ALSO SHOW ROCK MUSICALS? 
MAY A MUNICIPAL THEATER DEVOTE AN ENTIRE SEASON TO SHAKESPEARE, OR IS
IT REQUIRED TO BOOK ANY POTENTIAL PRODUCER ON A FIRST COME, FIRST
SERVED BASIS?  THESE QUESTIONS ARE REAL ONES IN LIGHT OF THE COURT'S
OPINION, WHICH BY ITS TERMS SEEMS TO GIVE NO CONSTITUTIONALLY
PERMISSIBLE ROLE IN THE WAY OF SELECTION TO THE MUNICIPAL AUTHORITIES. 

BUT THESE SUBSTANTIVE ASPECTS OF THE COURT'S OPINION ARE NO MORE
TROUBLING THAN THE FARRAGO OF PROCEDURAL REQUIREMENTS WITH WHICH IT HAS
SADDLED MUNICIPAL AUTHORITIES.  RELYING ON FREEDMAN, THE COURT HOLDS
THAT THOSE CHARGED WITH THE MANAGEMENT OF THE AUDITORIYM HAVE THE
BURDEN OF INSTITUTING JUDICIAL PROCEEDINGS, THAT "RESTRAINT" PRIOR TO
JUDICIAL REVIEW CAN BE IMPOSED ONLY FOR A SEPECIFIED BRIEF PERIOD, AND
THAT A PROMPT FINAL JUDICIAL DETERMINATION MUST BE ASSURED.  ANTE, AT
560. 

IF THESE STANDARDS ARE APPLICABLE ONLY WHERE A LEASE FOR A
PRODUCTION IS REFUSED ON THE GROUNDS THAT THE PRODUCTION IS PUTATIVELY
OBSCENE, THE COURT HAS PERFORMED THE RATHER NOVEL FEAT OF ELEVATING
OBSCENE PRODUCTIONS TO A PREFERRED POSITION UNDER THE FIRST AMENDMENT. 
IF THESE PROCEDURES MUST BE INVOKED EVERY TIME THE MANAGEMENT OF A
MUNICIPAL THEATER DECLINES TO LEASE THE FACILITIES, WHETHER OR NOT
BECAUSE OF THE PUTATIVE OBSCENITY OF THE PERFORMANCE, OTHER QUESTIONS
ARE RAISED.  WHAT WILL BE THE ISSUES TO BE TRIED IN THESE PROCEEDINGS? 
IS THE COURT ACTUALLY SAYING THAT UNLESS THE CITY OF CHATTANOOGA COULD
CRIMINALLY PUNISH A PERSON FOR STAGING A PERFORMANCE IN A THEATER WHICH
HE OWNED, IT MAY NOT DENY A LEASE TO THAT SAME PERSON IN ORDER FOR HIM
TO STAGE THAT PERFORMANCE IN A THEATER OWNED BY THE CITY? 

A MUNICIPAL THEATER MAY NOT BE RUN BY MUNICIPAL AUTHORITIES AS IF IT
WERE A PRIVATE THEATER, FREE TO JUDGE ON A CONTENT BASIS ALONE WHICH
PLAYS IT WISHES TO HAVE PERFORMED AND WHICH IT DOES NOT.  BUT, JUST A
SSURELY, THAT ELEMENT OF IT WHICH IS "THEATER" OUGHT TO BE ACCORDED
SOME CONSTITUTIONAL RECOGNITION ALONG WITH THAT ELEMENT OF IT WHICH IS
"MUNICIPAL."  I DO NOT BELIEVE FIDELITY TO THE FIRST AMENDMENT REQUIRES
THE EXAGGERATED AND RIGID PROCEDURAL SAFEGUARDS WHICH THE COURT INSISTS
UPON IN THIS CASE.  I THINK THAT THE FINDINGS OF THE DISTRICT COURT AND
THE COURT OF APPEALS SUPPORT THE CONCLUSION THAT PETITIONER WAS DENIED
A LEASE FOR CONSTITUTIONALLY ADEQUATE AND NONDISCRIMINATORY REASONS.  I
WOULD THEREFORE AFFRIM THE JUDGMENT OF THE COURT OF APPEALS.     /1/
SEE THE COURT'S OPINION, ANTE, AT 549 N. 4. 

/2/ LIMITATIONS ON THE USE OF MUNICIPAL AUDITORIUMS BY GOVERNMENT
MUST BE SUFFICIENTLY REASONABLE TO SATISFY THE DUE PROCESS CLUASE AND
CAN NOT UNFAIRLY DISCRIMINATE IN VIOLATION OF THE EQUAL PROTECTION
CLAUSE.  A MUNICIPAL AUDITORIUM WHICH OPENED ITSELF TO REPUBLICANS
WHILE CLOSING ITSELF TO DEMOCRATS WOULD RUN AFOUL OF THE FOURTEENTH
AMENDMENT.  THERE IS NO ALLEGATION IN THE INSTANT CASE THAT THE
AUDITORIUMS ACCEPTED EQUALLY GRAPHIC PRODUCTIONS WHILE UNFAIRLY
DISCRIMINATING AGAINST " HAIR" BECAUSE OF ITS EXPRESSIONS OF POLITICAL
AND SOCIAL BELIEF. 

/3/ THE FINDINGS OF FACT OF THE DISTRICT COURT WERE REPORTED AT 341
F. SUPP. 465, 472 - 474 (ED TENN. 1972), AND WERE REPEATED BY THE COURT
OF APPEALS AT 486 F. 2D 894, 895 - 897 (CA6 1973). 

HENERY P. MONAGHAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS JOHN ALLEY. 

RANDALL L. NELSON ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS EUGENE N. COLLINS. 

IRWIN KARP FILED A BRIEF FOR THE AUTHORS LEAGUE OF AMERICA, INC., AS
AMICUS CURIAE URGING REVERSAL. 
..END :







BURNS V. ALCALA, 420 U.S. 575 


       BURNS, COMMISSIONER, DEPARTMENT OF SOCIAL SERVICES OF IOWA,

           ET AL. V. ALCALA ET AL.

        CERTIROARI TO THE UNITED STATES COURT OF APPEALS FOR THE

      EIGHTH CIRCUIT

        NO. 73 - 1708.  ARGUED JANUARY 22, 1975--DECIDED MARCH 18,

           1975; 494 F.2D 743, REVERSED AND REMANDED. 


    FOR THE PURPOSES OF ELIGIBILITY FOR BENEFITS UNDER THE AID TO

  FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM, 406 (A) OF THE

  SOCIAL SECURITY ACT DEFINES "DEPENDENT CHILD" AS "A NEEDY CHILD

  (1) WHO HAS BEEN DEPRIVED OF PARENTAL SUPPORT OR CARE BY REASON

  OF THE DEATH, CONTINUED ABSENCE FROM THE HOME, OR PHYSICAL OR

  MENTAL INCAPACITY OF A PARENT, AND WHO IS LIVING WITH HIS FATHER,

  MOTHER," OR CERTAINOTHER DESIGNATED RELATIVES, AND (2) WHO IS

  UNDER THE AGE OF 18, OR UNDER THE AGE OF 21 AND A STUDENT.  HELD:

   THE TERM "DEPENDENT CHILD," AS SO DEFINED, DOES NOT INCLUDE

  UNBORN CHILDREN AND HENCE STATES RECEIVING FEDERAL FINANCIAL AID

  UNDER THE AFDC PROGRAM ARE NOT REQUIRED TO OFFER WELFARE BENEFITS

  TO PREGANAT WOMEN FOR THEIR UNBORN CHILDREN.  PP. 578 - 586. 

     (A) UNDER THE AXIOM THAT WORDS USED IN A STATUTE ARE TO BE

  GIVEN THEIR ORDINARY MEANING ABSENT PERSUASIVE REASONS TO THE

  CONTRARY, AND READING THE DEFINITION OF "DEPENDENT CHILD" IN ITS

  STATUTORY CONTEXT, IT IS APPARENT THAT CONGRESS USED THE WORD

"CHILD" TO REFER TO AN INDIVIDUAL ALREADY BORN, WITH AN

EXISTENCE 

     SEPARATE FROM ITS MOTHER.  PP. 580 - 581. 

     (B) THIS CONCLUSION IS ALSO SUPPORTED BY THE LIMITED PURPOSE
OF

  THE AFDC PROGRAM TO SUBSTITUTE FOR THE PRACTICE OF REMOVING NEEDY

  CHILDREN FROM THEIR HOMES, AND TO FREE WIDOWED ANDDIVORCED

  MOTHERS FROM THE NECESSITY OF WORKING, SO THAT THEY COULD REMAIN

  HOME TO SUPERVISE THEIR CHILDREN, AND BY THE FACT THAT THE SOCIAL

  SECURITY ACT ALSO PROVIDES FEDERAL FUNDING FOR PRENATAL AND

  POSTNATAL HEALTH SERVICES TO MOTHERS AND INFANTS, EXPLICITLY

  DESIGNED TO REDUCE INFANT AND MATERNAL MORTALITY, RATHER THAN FOR

  "MATERNITY BENEFITS" TO SUPPORT EXPECTANT MOTHERS.  PP.  581 -

  584. 

     (C) THE DOCTRINE THAT ACCORDS WEIGHT TO CONSISTENT

  ADMINISTRATIVE INTERPRETATION OF A STATUTE DOES NOT APPLY TO A

  DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) REGULATION

  ALLOWING STATES THE OPTIONOF PAYING AFDC BENEFITS TO PREGNANT

  WOMEN ON BEHALF OF UNBORN CHILDREN, WHERE HEW SAYS THAT THE

  REGULATION IS NOT BASED ON A CONSTRUCTION OF THE TERM "DEPENDENT

  CHILD" BUT ON HEW'S GENERAL AUTHORITY TO MAKE RULES FOR EFFICIENT

  ADMINISTRATION OF THE ACT, AND WHERE LEGISLATIVE HISTORY TENDS TO

  REBUT THE CLAIM THAT CONGRESS BY SILENCE HAS ACQUIESCED IN THE

  VIEW THAT UNBORN CHILDREN QUALIFY FOR AFDC PAYMENTS.  P 584 -

  586. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, BLACKMUN, AND

  REHNQUIST, JJ., JOINED.  MARSHALL, J., FILED A DISSENTING

  OPINION, POST, P. 587.  DOUGLAS, J., TOOK NO PART IN THE

  CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER STATES RECEIVING
FEDERAL FINANCIAL AID UNDER THE PROGRAM OF AID TO FAMILIES WITH
DEPENDENT CHILDREN (AFDC) MUST OFFER WELFARE BENEFITS TO PREGNANT WOMEN
FOR THEIR UNBORN CHILDREN.  AS THE CASE COMES TO THIS COURT, THE ISSUE
IS SOLELY ONE OF STATUTORY INTERPRETATION. 

        I 

RESPONDENTS, RESIDENTS OF IOWA, WERE PREGNANT AT THE TIME THEY FILED
THIS ACTION.  THEIR CIRCUMSTANCES WERE SUCH THAT THEIR CHILDREN WOULD
BE ELIGIBLE FOR AFDC BENEFITS UPON BIRTH.  THEY APPLIED FOR WELFARE
ASSISTANCE BUT WERE REFUSED ON THE GROUND THAT THEY HAD NO "DEPENDENT
CHILDREN" ELIGIBLE FOR THE AFDC PROGRAM.  RESPONDENTS THEN FILED THIS
ACTION AGAINST PETITIONERS, IOWA WELFARE OFFICIALS.  ON BEHALF OF
THEMSELVES AND OTHER WOMEN SIMILARLY SITUATED, RESPONDENTS CONTENDED
THAT THE IOWA POLICY OF DENYING BENEFITS TO UNBORN CHILDREN CONFLICTED
WITH THE FEDERAL STANDARD OF ELIGIIBILITY UNDER 406 (A) OF THE SOCIAL
SECURITY ACT, AS AMENDED, 42 U.S.C. 606 (A), AND RESULTED IN A DENIAL
OF DUE PROCESS AND EQUAL PROTECTION UNDER THE DOURTEENTH AMENDMENT. 
/1/ THE DISTRICT COURT CERTIFIED THE CLASS AND GRANTED DECLARATORY AND
INJUNCTIVE RELIEF.  THE COURT HELD THAT UNBORN CHILDREN ARE "DEPENDENT
CHILDREN" WITHIN THE MEANING OF 406 (A) AND THAT BY DENYING THEM AFDC
BENEFITS IOWA HAD DEPARTED IMPERMISSIBLY FROM THE FEDERAL STANDARD OF
ELIGIBILITY.  THE DISTRICT COURT DID NOT REACH RESPONDENTS'
CONSTITUTIONAL CLAIMS.  362 F. SUPP. 180 (SD IOWA 1973).  THE COURT OF
APPEALS FOR THE EIGHT CIRCUIT AFFIRMED.  494 F. 2D 743 (1974).  WE
GRANTED CERTIORARI TO RESOLVE THE CONFLICT AMONG THE FEDERAL COURTS
THAT HAVE CONSIDERED THE QUESTION.  /2/ 419 U.S. 853.  WE CONCLUDE THAT
THE STATUTORY TERM "DEPENDENT CHILD" DOES NOT INCLUDE UNBORN CHILDREN
AND WE REVERSE. 

        II 

THE COURT HAS HELD THAT UNDER 402 (A)(10) OF THE SOCIAL SECURITY
ACT, 42 U.S.C. 602 (A)(10), FEDERAL PARTICIPATION IN STATE AFDC
PROGRAMS IS CONDITIONED ON THE STATE'S OFFERING BENEFITS TO ALL PERSONS
WHO ARE ELIGIBLE UNDER FEDERAL STANDARDS.  THE STATE MUST PROVIDE
BENEFITS TO ALL INDIVIDUALS WHO MEET THE FEDERAL DEFINITION OF
"DEPENDENT CHILD" AND ARE "NEEDY" UNDER STATE STANDARDS, UNLESS THEY
ARE EXCLUDED OR AID IS MADE OPPTIONAL BY ANOTHER PROVISION OF THE ACT. 
NEW YORK DEPT. OF SOCIAL SERVICES V. DUBLINO, 410 U.S. 405, 421 - 422
(1973); CARLESON V. REMILLARD, 406 U.S. 598 (1972); TOWNSEND V. SWANK,
404 U.S. 282 (1971); KING V. SMITH, 392 U.S. 309 (1968).  THE
DEFINITION OF "DEPENDENT CHILD" APPEARS IN 406 (A) OF THE ACT: 

     " THE TERM 'DEPENDENT CHILD' MEANS A NEEDY CHILD (1) WHO HAS

  BEEN DEPRIVED OF PARENTAL SUPPORT OR CARE BY REASON OF THE DEATH,

  CONTINUED ABSENCE FROM THE HOME, OR PHUSICAL OR MENTAL INCAPACITY

  OF A PARENT, AND WHO IS LIVING WITH HIS FATHER, MOTHER,

  GRANDFATHER, GRANDMOTHER, BROTHER, SISTER, STEPFATHER,

  STEPMOTHER, STEPBROTHER, STEPSISTER, UNCLE, AUNT, FIRST COUSIN,

  NEPHEW, OR NIECE, IN A PLACE OF RESIDENCE MAINTAINED BY ONE OR

  MORE OF SUCH RELATIVES AS HIS OR THEIR OWN HOME, AND (2) WHO IS

  (A) UNDER THE AGE OF EIGHTEEN, OR (B) UNDER THE AGE OF TWENTY-ONE

  AND (AS DETERMINED BY THE STATE IN ACCORDANCE WITH STANDARDS

  PRESCRIBED BY THE SECRETARY) A STUDENT REGULARLY ATTENDING A

  SCHOOL, COLLEGE, OR UNIVERSITY, OR REGULARLY ATTENDING A COURSE

OF VOCATIONAL OR TECHNICAL TRAINING DESIGNED TO FIT HIM FOR

  GAINFUL EMPLOYMENT...."  42 U.S.C. 606 (A). 

THE SECTION MAKES NO MENTION OF PREGNANT WOMEN OR UNBORN CHILDREN AS
SUCH. 

RESONDENTS CONTEND, CITING DICTIONARY DEFINITIONS, /3/ THAT THE WORD
"CHILD" CAN BE USED TO INCLUDE UNBORN CHILDREN.  THIS IS ENOUGH, THEY
SAY, TO MAKE THE STATUTE AMBIGUOUS AND TO JUSTIFY CONSTRUING THE TERM
"DEPENDENT" CHILD" IN LIGHT OF LEGISLATIVE PURPOSES AND ADMINISTRATIVE
INTERPRETATION.  /4/ THEY ARGUE THAT BOTH FACTORS SUPPORT THEIR
POSITION IN THIS CASE.  FIRST, PAYING BENEFITS TO NEEDY PREGNANT WOMEN
WOULD FURTHRE THE PURPOSE OF THE AFDC PROGRAM BECAUSE IT WOULD ENABLE
THEM TO SAFEGUARD THE HEALTH OF THEIR CHILDREN THROUGH PRENATAL CARE
AND ADEQUATE NUTRITION.  SECOND, FOR OVER 30 YEARS THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE (HEW) HAS OFFERED STATES AN OPTION TO
CLAIM FEDERAL MATCHING FUNDS FOR AFDC PAYMENTS TO PREGNANT WOMEN.  /5/ 

SEVERAL OF THE COURTS THAT HAVE FACED THIS ISSUE HAVE READ KING,
TOWNSEND, AND CARLESON, SUPRA, TO ESTABLISH A SPECIAL RULE OF
CONSTRUCTION APPLICABLE TO SOCIAL SECURITY ACT PROVISIONS GOVERNING
AFDC ELIGIBILITY.  HELD THAT PERSONS WHO ARE ARGUABLY INCLUDED IN THE
FEDERAL ELIGIBILITY STANDARD MUST BE DEEMED ELIGIBLE UNLESS THE ACT OR
ITS LEGISLATIVE HISTORY CLEARLY EXHIBITS AN INTENT TO EXCLUDE THEM FROM
COVERAGE, IN EFFECT CREATING A PRESUMPTION OF COVERAGE WHEN THE STATUTE
IS AMBIGUOUS.  SEE CARVER V. HOOKER, 369 F. SUPP. 204, 210 - 215 (NH
1973), AFF'D, 501 F. 2D 1244 (CA1 1974); STUART V. CANARY, 367 F. SUPP.
1343, 1345 (ND OHIO 1973); GREEN V. STANTON, 364 F. SUPP. 123, 125 -
126 (ND IND. 1973), AFF'D SUB NOM.  WILSON V. WEAVER, 499 F. 2D 155
(CA7 1974).  BUT SEE MIXON V. KELLER, 372 F. SUPP. 51, 55 (MD FLA.
1974).  THIS DEPARTURE FROM ORDINARY PRINCIPLES OF STATUTORY
INTERPRETATION IS NOT SUPPORTED BY THE COURT'S PRIOR DECISIONS.  KING,
TOWNSEND, AND CARLESON ESTABLISH ONLY THAT ONCE THE FEDERAL STANDARD OF
ELIGIBILITY IS DEFINED, A PARTICIPATING STATE MAY NOT DENY AID TO
PERSONS WHO COME WITHIN IT IN THE ABSENCE OF A CLEAR INDICATION THAT
CONGRESS MEANT THE COVERAGE TO BE OPTIONAL.  THE METHOD OF ANALYSIS
USED TO DEFINE THE FEDERAL STANDARD OF ELIGIBILITY IS NO DIFFERENT FROM
THAT USED IN SOLVING ANY OTHER PROBLEM OF STATUTORY CONSTRUCTION. 

OUR ANALYSIS OF THE SOCIAL SECURITY ACT DOES NOT SUPPORT A
CONCLUSION THAT THE LEGISLATIVE DEFINITION OF "DEPENDENT CHILD"
INCLUDES UNBORN CHILDREN.  FOLLOWING THE AXIOM THAT WORDS USED IN A
STATUTE ARE TO BE GIVEN THEIR ORDINARY MENAING IN THE ABSENCE OF
PERSUASIVE REASONS TO THE CONTRARY, BANKS V. CHICAGO GRAIN TRIMMERS,
390 U.S. 459, 465 (1968); MINOR V. MECHANICS BANK OF ALEXANDRIA, 1 PET.
46, 64 (1828), AND READING THE DEFINITION OF "DEPENDENT CHILD" IN ITS
STATUTORY CONTEXT, WE CONCLUDE THAT CONGRESS USED THE WORD "CHILD"  TO
REFER TO AN INDIVIDUAL ALREADY BORN, WITH AN EXISTENCE SEPARATE FROM
ITS MOTHER. 

AS ORIGINALLY ENACTED IN 1935, THE SOCIAL SECURITY ACT MADE NO
PROVISION FOR THE NEEDS OF THE ADULT TAKING CARE OF A "DEPENDENT
CHILD."  IT AUTHORIZED AID ONLY FOR THE CHILD AND OFFERED NONE TO
SUPPORT THE MOTHER.  /6/ C. 531, 406, 49 STAT. 629.  THE ACT EXPRESSLY
CONTEMPLATED THAT THE FIRST ELIGIBLE CHILD IN A FAMILY WOULD RECEIVE
GREATER BENEFITS THAN SUCCEEDING CHILDREN, RECOGNIZING THE LOWER PER
CAPITA COST OF SUPPORT IN FAMILIES WITH MORE THAN ONE CHILD, 403 (A),
BUT THE ACT INCLUDED NO SIMILAR PROVISION RECOGNIZING THE INCREMENTAL
COSTS TO A PREGNANT WOMAN OF SUPPORTING HER CHIL"CHILD."  THE ACT ALSO
SPOKE OF CHILDREN "LIVING WITH" DESIGNATED RELATIVES, 406 (A), AND
REFERRED TO RESIDENCY REQUIREMENTS DEPENDENT ON THE CHILD'S PLACE OF
BIRTH.  402 (B).  THESE PROVISIONS WOULD APPLY AWKWARDLY, IF AT ALL, TO
PREGNANT WOMEN AND UNBORN CHILDREN.  THE FAILURE TO PROVIDE EXPLICITLY
FOR THE SPECIAL CIRCUMSTANCES OF PREGNANT WOMEN STRONGLY SUGGESTS THAT
CONGRESS HAD NO THOUGHT OF PROVIDING AFDC BENEFITS TO "DEPENDENT
CHILDREN" BEFORE BIRTH.  /7/ 

THE PURPOSES OF THE ACT ALSO ARE PERSUASIVE.  THE AFDC PROGRAM WAS
ORGINALLY CONCEIVED TO SUBSTITUTE FOR THE PRACTICE OF REMOVING NEEDY
CHILDREN FROM THEIR HOMES AND PLACING THEM IN INSTITUTIONS, AND TO FREE
WIDOWED AND DIVORCED MOTHERS FROM THE NECESSITY OF WORKING, SO THAT
THEY COULD REMAIN HOME TO SUPERVISE THEIR CHILDREN.  PRESIDENT
ROOSEVELT'S MESSAGE TO CONGRESS RECOMMENDING THE LEGISLATION, H.R. DOC.
NO. 81, 74TH CONG., 1ST SESS., 29 - 30 (1935), AND IN COMMITTEE REPORTS
IN BOTH HOUSES OF CONGRESS, S. REP. NO. 628, 74TH CONG., 1ST SESS., 16
17 (1935); H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 10 (1935).  SEE
WISDOM V. NORTON, 507 F. 2D 750, 754 - 755 (CA2 1974); NOTE,
ELIGIBILITY OF THE UNBORN FOR AFDC BENEFITS:  THE STATUTORY AND
CONSTITUTIONAL ISSUES, 54 B.U.L. REV. 945, 955 - 958 (1974).  THE
RESTRICTED PURPOSE OF THE AFDC PROGRAM IS EVIDENCED IN THE ACT ITSELF
BY THE LIMITATIONS ON AID.  THE ACT ORIGINALLY AUTHORIZED AID ONLY FOR
CHILDREN LIVING WITH DESIGNATED RELATIVES.  /8/ THE LIST OF RELATIVES
HAS GROWN, SUPRA, AT 578, BUT THERE IS STILL NO GENERAL PROVISION FOR
AFDC PAYMENTS TO NEEDY CHILDREN LIVING WITH DISTANT RELATIVES OR
UNRELATED PERSONS, OR IN INSTUTUTIONS.  /9/ 

CONGRESS DID NOT IGNORE THE NEEDS OF PREGANT WOMEN OR THE
DESIRABILITY OF ADEQUATE PRENATAL CARE.  IN TITLE V OF THE SOCIAL
SECURITY ACT, NOW CODIFIED AS 42 U.S.C. 701 - 708 (1970 ED. AND SUPP.
III), CONGRESS PROVIDED FEDERAL FUNDING FOR PRENATAL AND POSTNATAL
HEALTH SERVICES TO MOTHERS AND INFANTS, EXPLICITLY DESIGNED TO REDUCE
INFANT AND MATERNAL MORTALITY.  /10/ SEE S. REP. NO. 628, SUPRA, AT
20.  IN SELECTING THIS FORM OF AID FOR PREGNANT WOMEN, CONGRESS HAD
BEFORE IT PROPOSALS TO FOLLOW THE LEAD OF SOME EUROPEAN COUNTRIES THAT
PROVIDED "MATERNITY BENEFITS" TO SUPPORT EXPECTANT MOTHERS FOR A
SPECIFIED PERIOD BEFORE AND AFTER CHILDBIRTH.  HEARINGS ON S. 1130
BEFORE THE SENATE COMMITTEE ON FINANCE, 74TH CONG., 1ST SESS., 182, 965
- 971 (1935).  IF CONGRESS HAD INTENDED TO INCLUDE A SIMILAR PROGRAM IN
THE SOCIAL SECURITY ACT, IT VERY LIKELY WOULD HAVE DONE SO EXPLICITLY
RATHER THAN BY RELYING ON THE TERM "DEPENDENT CHILD," AT BEST A HIGHLY
AMBIGUOUS WAY TO REFER TO UNBORN CHILDREN. 

        B 

RESPONDENTS HAVE ALSO RELIED ON HEW'S REGULATION ALLOWING PAYMENT OF
AFDC BENEFITS ON BEHALF OF UNBORN CHILDREN.  THEY ASK US TO DEFER TO
THE AGENCY'S LONGSTANDING INTERPRETATION OF THE STATUTE IT
ADMINISTERS.  RESPONDENTS HAVE PROVIDED THE COURT WITH COPIES OF
LETTERS AND INTEROFFICE MEMORANDA THAT PRECEDED ADOPTION OF THIS POLICY
IN 1941 BY HEW'S PREDECESSOR, THE BUREAU OF PUBLIC ASSISTANCE.  THESE
PAPERS SUGGEST THAT THE AGENCY INITIALLY MAY HAVE TAKEN THE POSITION
THAT THE STATUTORY PHRASE "DEPENDENT CHILDREN" INCLUDED UNBORN
CHILDREN.  /11/ 

A BRIEF FILED BY THE SOLICITOR GENERAL ON BEHALF OF HEW IN THIS CASE
DESAVOWS RESPONDENTS' INTERPRETATION OF THE ACT.  HEW CONTENDS THAT
UNBORN CHILDREN ARE NOT INCLUDED IN THE FEDERAL ELIGIBILITY STANDARD
AND THAT THE REGULATION AUTHORIZING FEDERAL PARTICIPATION IN AFDC
PAYMENTS TO PREGNANT WOMEN IS BASED ON THE AGENCY'S GENERAL AUTHORITY
TO MAKE RULES FOR EFFICIENT ADMINISTRATION OF THE ACT.  42 U.S.C.
1302.  THE REGULATION IS CONSISTENT WITHTHIS EXPLAINATION.  IT APPEARS
IN A SUBSECTION WITH OTHER RULES AUTHORIZING TEMPORARY AID, AT THE
OPTION OF THE STATES, TO INDIVIDUALS IN THE PROCESS OF GAINING OR
LOSING ELIGIBILITY FOR THE AFDC PROGRAM.  FOR EXAMPLE, ONE OF THE
ACCOMPANYING RULES AUTHORIZES STATES TO PAY AFDC BENEFITS TO A RELATIVE
30 DAYS BEFORE THE ELIGIBLE CHILD COMES TO LIVE IN HIS HOME.  45 CFR
233.90 (C)(2).  HEW'S CURRENT EXPLANATION OF THE REGULATION DEPRIVES
RESPONDENTS' ARGUMENT OF ANY SIGNIFICANT SUPPORT FROM THE PRINCIPLE
THAT ACCORDS PERSUASIVE WEIGHT TO A CONSISTENT, LONGSTANDING
INTERPRETATION OF A STATUTE BY TEH AGENCY CHARGED WITH ITS
ADMINISTRATION.  SEE FMB V. ISBRANDTSEN CO., 356 U.S. 481, 499 - 500
(1958); BURNET V. CHICAGO PORTRAIT CO., 285 U.S. 1, 16 (1932). 

NOR CAN RESPONDNETS MAKE A CONVINCING CLAIM OF CONGRESSIONAL
ACQUIENSCENCE IN HEW'S PRIOR POLICY.  IN 1972, IN THE CONTEXT OF MAJOR
SOCIAL SECURITY LEGISLATION, BOTH HOUSES OF CONGRESS PASSED BILL TO
REVISE THE AFDC SYSTEM.  ONE SECTION OF THE BILL PASSED IN THE SENATE
WOULD HAVE AMENDED THE DEFINITION OF "DEPENDENT CHILD" EXPRESSLY TO
EXCLUDE UNBORN CHILDREN.  H.R. 1, 92D CONG., 1ST SESS. (1972) (AS
AMENDED BY SENATE); 118 CONG. REC. 33990, 33995 (1972); SEE S. REP. NO.
92 - 1230, PP. 108, 467 (1972).  THE HOUSE BILL WOULD HAVE SUBSTITUTED
AN ENTIRELY NEW DEFINITION OF ELIGIBILITY UNDER THE ADMINISTRATION'S
"FAMILY ASSISTANCE PLAN."  H.R. 1, 92D CONG., 1ST SESS.; 117 CONG. REC.
21450, 21463 (1971).  THE ACCOMPANYING COMMITTEE REPORT SPECIFIED THAT
UNDER THE NEW DEFINITION UNBORN CHILDREN WOULD NOT BE ELIGIBLE FOR
AID.  H.R. REP. NO. 92 - 231, P. 184 (1971).  BOTH BILLS PASSED THE
RESPECTIVE HOUSES OF CONGRESS, BUT NONE OF THE AFDC AMENDMENTS APPEARED
IN THE FINAL LEGISLATION, PUB. L. 92 - 603, 86 STAT. 1329, BECAUSE THE
HOUSE AND SENATE CONFEREES WERE UNABLE TO AGREE ON THE UNDERLYING
PRINCIPLE OF WELFARE REFORM.  ALL EFFORTS TO AMEND AFDC WERE POSTPONED
FOR ANOTHER SESSION OF CONGRESS.  SEE 118 CONG. REC. 36813 - 36825,
36926 - 36936 (1972); MIXON V. KELLER, 372 F. SUPP., AT 55.  UNDER THE
CIRCUMSTANCES, FAILURE TO ENACT THE RELATIVELY MINOR PROVISION RELATING
TO UNBORN CHILDREN CANNOT BE REGARDED AS APPROVAL OF HEW'S PRACTICE OF
ALLOWING OPTIONAL BENEFITS.  TO THE EXTENT THIS LEGISLATIVE HISTORY
SHEDS ANY LIGHT ON CONGRESSIONAL INTENT, IT TENDS TO REBUT THE CLAIM
THAT CONGRESS BY SILENCE HAS ACQUIESCED IN THE FORMER HEW VIEW THAT
UNBORN CHILDREN ARE ELIGIBLE FOR AFDC PAYMENTS.  /12/             C 

IN THIS CASE RESPONDENTS DID NOT, AND PERHAPS COULD NOT, CHALLENGE
HEW'S POLICY OF ALLOWING STATES THE OPTION OF PAYING AFDC BENEFITS TO
PREGNANT WOMEN.  WE THEREFORE HAVE NO OCCASION TO DECIDE WHETHER HEW
HAS STATUTORY AUTHORITY TO APPROVE FEDERAL PARTICIPATION IN STATE
PROGRAMS ANCILLARY TO THOSE EXPRESSLY PROVIDED IN THE SOCIAL SECURITY
ACT, SEE WISDOM V. NORTON, 507 F. 2D, AT 756, OR WHETHER 42 U.S.C. 1302
AUTHORIZES HEW TO FUND BENEFITS FOR UNBORN CHILDREN AS A FORM OF
TEMPORARY AID TO INDIVIDUALS WHO ARE IN THE PROCESS OF QUALIFYING UNDER
FEDERAL STANDARDS.  SEE PARKS V. HARDEN, 504 F. 2D 861, 875 - 877 (CA5
1974) (AINSWORTH, J., DISSENTING).              III 

NEITHER THE DISTRICT COURT NOR THE COURT OF APPEALS CONSIDERED
RESPONDENTS' CONSTITUTIONAL ARGUMENTS.  RATHER THAN DECIDE THOSE
QUESTIONS HERE, WHERE THEY HAVE NOT BEEN BRIEFED AND ARGUED, WE REMAND
THE CASE FOR CONSIDERATION OF THE EQUAL PROTECTION AND DUE PROCESS
ISSUES THAT WERE RAISED BUT NOT DECIDED BELOW. 

                                  REVERSED AND REMANDED. 

/1/ THE COMPLAINT WAS FRAMED UNDER 42 U.S.C. 1983, AND JURISDICITON
IN THE DISTRICT COURT WAS BASED ON 28 U.S.C. 1343 (3).  SEE HAGANS V.
LAVINE, 415 U S. 528 (1974). 

/2/ THE CASES ARE CITED IN PARKS V. HARDEN, 504 F. 2D 861, 863 N. 4
(CA5 1974). 

/3/ E.G., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1961) WHICH
INCLUDES AS ONE DEFINITION OF "CHILD," AND UNBORN OR RECENTLY BORN
HUMAN BEING:  FETUS, INFANT, BABY."  THIS, OF COURSE, IS ONLY ONE OF
MANY DEFINITIONS FOR THE WORD "CHILD," AND ITS USE WITH REFERENCE TO
UNBORN CHILDREN IS NOT THE MOST FREQUENT.  WEBSTER'S NEW INTERNATIONAL
DICTIONARY (ID ED. 1957) QUALIFIED THE DEFINITION QUOTED ABOVE BY
ADDING, "NOW CHIEFLY IN PHRASES.  CF. WITH CHILD, CHILDBIRTH." 
RESPONDENTS HAVE CANDIDLY FURNISHED CITATIONS TO OTHER CURRENT
DICTIONARIES THAT DO NOT INDICATE THAT THE WORD "CHILD" IS USED TO
REFER TO UNBORN CHILDREN.  RESPONDENTS ACKNOWLEDGE THAT RELIANCE ON
DICTIONARIES CANNOT SOLVE THE QUESTION PRESENTED IN THIS CASE.  AT
MOST, THE DICTIONARIES DEMONSTRATE THE POSSIBLE AMBIGUITY IN THE TERM
"DEPENDENT CHILD." 

/4/ SEE UNITED STATES V. SOUTHERN UTE INDIANS, 402 U.S. 159, 173 N.
8 (1971); STUDEBAKER V. PERRY, 184 U.S. 258 269 (1902); MERRITT V.
WELSH, 104 U.S. 694, 702 - 703 (1882). 

/5/ THE CURRENT REGULATION PROVIDES THAT "(FEDERAL FINANCIAL
PARTICIPATION IS AVAILABLE IN ... (PAYMENTS WITH RESPECT TO AN UNBORN
CHILD WHEN THE FACT OF PREGNANCY HAS BEEN DETERMINED BY MEDICAL
DIAGNOSIS."  45 CFR 233.90 (C)(2)(II).  ALTHOUGH THE REGULATION ITSELF
DOES NOT SAY EXPRESSLY THAT AID TO UNBORN CHILDREN IS OPTIONAL WITH THE
STATES, HEW'S ADMINISTRATIVE PRATICE MAKES CLEAR THAT THIS REGULATION
ALLOWS STATES TO EXCLUDE UNBORN CHILDREN FROM THEIR AFDC PROGRAMS.  AS
OF 1971 HEW HAD APPROVED 34 STATE PLANS, INCLUDING IOWA'S, THAT
FURNISHED NO AID TO UNBORN CHILDREN.  494 F. 2D 743, 745 (CA8 1974). 

/6/ THE ACT WAS AMENDED IN 1950 TO AUTHORIZE PAYMENT FOR THE NEEDS
OF THE CHILD'S CARETAKER.  ACT OF AUG. 28, 1950, 323, 64 STAT. 551. 

/7/ A NUMBER OF OTHER PROVISIONS OF THE ACT WOULD BE SIMILARLY
IMAPPLICABLE TO UNBORN CHILDREN.  SEE MURROW V. CLIFFORD, 502 F.2D
1066, 1075 - 1076 (CA3 1974) (ROSENN, J., CONCURRING AND DISSENTING). 

/8/ THE ORIGINAL DEFINITION OF "DEPENDENT CHILD" WAS:  "A CHILD
UNDER THE AGE OF SIXTEEN WHO HAS BEEN DEPRIVED OF PARENTAL SUPPORT OR
CARE BY REASON OF THE DEATH, CONTINUED ABSENCE FROM THE HOME, OR
PHYSICAL OR MENTAL INCAPACITY OF A PARENT, AND WHO IS LIVING WITH HIS
FATHER, MOTHER, GRANDFATHER, GRANDMOTHER, BROTHER, SISTER, STEPFATHER,
STEPMOTHER, STEPBROTHER, STEPSISTER, UNCLE, OR AUNT, IN A PLACE OF
RESIDENCE MAINTAINED BY ONE OR MORE OR SUCH RELATIVES AS HIS OR THEIR
OWN HOME...."  406 (A), 49 STAT. 629. 

/9/ THE ACT NOW AUTHORIZES, IN ADDITION TO PAYMENTS FOR CHILDREN IN
THE HOMES OF DESIGNATED RELATIVES, FOSTER CARE PAYMENTS FOR CHILDREN
WHO HAVE BEEN REMOVED FROM THE HOMES OF RELATIVES.  42 U.S.C. 608.  IT
ALSO PROVIDES FINANCIAL SUPPORT FOR CHILD-WELFARE SERVICES, IN A FORM
DIFFERENT FROM THE DIRECT PAYMENTS IN THE GENERAL AFDC PROGRAM, FOR
"HOMELESS, DEPENDENT, OR NEGLECTED CHILDREN."  42 U.S.C. 622, 625. 

THE STATEMENT OF PURPOSES IN THE ACT, AMENDED SEVERAL TIMES SINCE
1935, STILL INDICATES THAT CONGRESS HAS NOT UNDERTAKEN TO PROVIDE
SUPPORT FOR ALL NEEDY CHILDREN: 

" FOR THE PURPOSE OF ENCOURAGING THE CARE OF DEPENDENT CHILDREN IN
THEIR OWN HOMES OR IN THE HOMES OF RELATIVES BY ENABLING EACH STATE TO
FURNIS FINANCIAL ASSISTANCE AND REHABILITATION AND OTHER SERVICES, AS
FAR AS PRACTICABLE UNDER THE OCNDITIONS IN SUCH STATE, TO NEEDY
DEPENDENT CHILDREN AND THE PARENTS OR RELATIVES WITH WHOM THEY ARE
LIVING TO HELP MAINTAIN AND STRENGTHEN FAMILY LIFE AND TO HELP SUCH
PARENTS OR RELATIVES TO ATTAINE OR RETAIN CAPABILITY FOR THE MAXIMUM
SELF-SUPPORT AND PERSONAL INDEPENDENCE CONSISTENT WITH THE MAINTENANCE
OF CONTINUING PARENTAL CARE AND PROTECTION...."  42 U.S.C. 601. 

/10/ AS JUDGE WEINFELD'S OPINION FOR THE SECOND CIRCUIT IN WISDOM V.
NORTON, 507 F. 2D 750, 755 (1974), POINTS OUT, ONE OF THE MAJOR REASONS
FOR MAKING WELFARE PAYMENTS ON BEHALF OF AN UNBORN CHILD WOULD BE TO
ENABLE ITS MOTHER TO PURCHASE ADEQUATE PRENATAL CARE.  THE FACT THAT
CONGRESS EXPLICITLY PROVIDED MEDICAL CARE FOR EXPECTANT MOTHERS IN
TITLE V IS EVIDENCE "OF A CONGRESSIONAL INTENT NOT TO INCLUDE UNBORN
CHILDREN UNDER AFDC BUT TO PROVIDE FOR MATERNITY CARE IN A DIFFERENT

/11/ AT ORAL ARGUMENT PETITIONERS' COUNSEL OBJECTED TO THE INCLUSION
OF THESE MATERIALS IN RESPONDENTS' BRIEF, NOTING THAT THEY WERE NOT IN
THE RECORD AND HAD NOT BEEN AUTHENTICATED.  TR. OF ORAL ARG. 43 - 45. 
RESPONDENTS SUGGESTED THAT AT LEAST SOME OF THE MATERIALS ARE PROPER
SUBJECTS FOR JUDICIAL NOTICE.  IN THE VIEW WE TAKE OF THE CASE THESE
MATERIALS ARE NOT DISPOSITIVE, AND IT IS UNNECESSARY TO RESOLVE THEIR
STATUS. 

/12/ SEVERAL OF THE COURTS THAT HAVE ADOPTED TEH POSITION URGED HERE
BY RESPONDENTS HAVE INTERPRETED THE ACTION OF THE 92D CONGRESS AS
EVIDENCE OF A "BRIEF THAT UNBORN CHILDREN ARE CURRENTLY ELIGIBLE UNDER
THE ACT 'AND THAT ONLY BY AMENDING ITS LANGUAGE CAN THEIR STATUS AS
ELIGIBLE INDIVIDUALS BE ALTERED.'"  PARKS V. HARDEN, 504 F. 2D, AT
872.  SEE ALSO CARVER V. HOOKER, 501 F. 2D 1244, 1247 (CA1 1974);
WILSON V. WEAVER, 358 F. SUPP. 1147, 1155 (ND ILL. 1973), AFF'D 499 F.
2D 155 (CA7 1974).  THE HOUSE BILL DOES NOT LEND ITSELF TO THIS
INTERPRETATION BECAUSE IT WAS NOT DESIGNED TO AMEND THE EXISTING AFDC
STRUCTURE BUT TO CREATE AN ENTIRELY DIFFERENT SYSTEM.  THE SENATE BILL
WAS FRAMED AS AN AMENDMENT TO THE ELIGIBILITY PROVISIONS IN 406 (A),
BUT THERE IS NO EVIDENCE THAT ITS DRAFTERS BELIEVED UNBORN CHILDREN
WERE INCLUDED IN THE EXISTING DEFINITION OF DEPENDENT CHILDREN.  IT
WOULD BE EQUALLY PLAUSIBLE TO SUPPOSE THAT THEY THOUGHT HEW HAD
MISINTERPRETED THE ACT, AND WANTED TO MAKE THE ORGINAL INTENT CLEAR. 
SEE WILSON V. WEAVER, 499 F. 2D, AT 161 (PELL, J., DISSENTING). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MARSHALL, DISSENTING. 

AS THE MAJORITY IMPLICITLY ACKNOWLEDGES THE EVIDENCE AVALIABLE TO
HELP RESOLVE THE ISSUE OF STATUTORY CONSTRUCTION PRESENTED BY THIS CASE
DOES NOT POINT DECISIVELY IN EITHER DIRECTION.  WHEN IT PASSED THE
SOCIAL SECURITY ACT IN 1935 CONGRESS GAVE NO INDICATION THAT IT MEANT
TO INCLUDE OR EXCLUDE UNBORN CHILDREN FROMTHE DEFINITION OF "DEPENDENT
CHILD."  NOR HAS IT SHED ANY FURTHER LIGHT ON THE QUESTION OTHER THAN
TO CONSIDER, AND FAIL TO PASS, LEGISLATION THAT WOULD INDISPUTABLE HAVE
EXCLUDED UNBORN CHILDREN FROM COVERAGE. 

THE MAJORITY HAS PARSED THE LANGUAGE AND TOUCHED ON THE LEGISLATIVE
HISTORY OF THE ACT IN AN EFFORT TO MUSTER SUPPORT FOR TH VIEW THAT
UNBORN CHILDREN WERE NOT MEANT TO BENEFIT FROM THE ACT.  EVEN GIVEN ITS
BEST FACE, HOWEVER, THIS EVIDENCE PROVIDES ONLY MODEST SUPPORT FOR THE
MAJORITY'S POSITION.  THE LENGTHY COURSE OF ADMINISTRATIVE PRACTICE
CUTS QUITE THE OTHER WAY.  ALTOUGH THE QUESTION IS A CLOSE ONE, I AGREE
WITH THE CONCLUSION REACHED BY FIVE OF THE SIX COURTS OF J APPEALS THAT
HAVE CONSIDERED THIS ISSUE, /1/ AND WOULD ACCORDINGLY AFFIRM THE
JUDGMENT BELOW. 

THE MAJORITY MAKES ONLY PASSING REFERENCE TO THE ADMINISTRATIVE
PRACTICE OF 30 YEARS' DURATION, UNDER WHICH UNBORN CHILDREN WERE DEEMED
ELIGIBLE FOR FEDERAL AFDC AID WHERE STATE PROGRAMS PROVIDED FUNDS FOR
THEM.  ACCORDING TO THE MAJORITY, THIS LONGSTANDING ADMINISTRATIVE
PRACTICE IS DEPRIVED OF ANY SIGNIFICANT WEIGHT BY HEW'S PRESENT
SUGGESTION THAT IT HAS ALWAYS TREATED UNBORN CHILDREN AS BEING OUTSIDE
THE STATUTORY DEFINITION OF "DEPENDENT CHILD."  THE AGENCY'S
CHARACTERIZATION OF ITS FORMER POSITION, HOWEVER, MISREPRESENTS THE
HISTORY OF THE ADMINISTRATIVE PRACTICE. 

AS EARLY AS 1941 THE BUREAU OF PUBLIC ASSISTANCE FACED THE PROBLEM
OF WHETHER UNBORN CHILDREN WERE COVERED BY 406 (A) OF THE ACT.  AT THAT
TIME, THE BOARD DETERMINED THAT UNDER THE ACT FEDERAL FUNDS COULD BE
PROVIDED TO THE STATES FOR AID TO UNBORN CHILDREN.  THE AGENCY'S
GOVERNING REGULATION IN THE HEW HANDBOOK OF PUBLIC ASSISTANCE
ADMINISTRATION EXPRESSLY INCLUDED UNBORN CHILDREN AMONG THOSE ELIGIBLE
FOR AID "ON THE BASIS OF THE SAME ELIGIBILITY CONDITIONS AS APPLY TO
OTHER CHILDREN."  PT. IV, 2412 (6) (1946).  THE LANGUAGE OF THE
REGULATION AND THE INCLUSION OF UNBORN CHILDREN AMONG FIVE OTHER
CLASSES OF CHILDREN ELIGIBLE FOR AFDC PAYMENTS UNDER THE DEFINITION OF
"DEPENDENT CHILD" MAKE IT EVIDENT THAT THE AGENCY DEEMED UNBORN
CHILDREN TO COME WITHIN THE TERMS OF 406 (A) OF THE ACT.  /2/ 

THIS REGULATION REMAINED UNCHANGED UNTIL 1971, WHEN IT WAS PLACED IN
THE CODE OF FEDERAL REGULATIONS AS 45 CFR 233.90 (C)(2)(II).  ALTHOUGH
ITS LANGUAGE WAS ALTERED SOMEWHAT, THE REGULATION STILL PROVIDED THAT,
IN ELECTING STATES, FEDERAL PARTICIPATION WOULD BE AVAILABLE FOR UNBORN
CHILDREN ONCE THE FACT OF PREGNANCY WAS CONFIRMED BY MEDICAL
DIAGNOSIS.  IT WAS ONLY WHEN A SERIES OF LAWSUITS WERE FILED SEEKING TO
HAVE AFDC MADE AVALIABLE TO UNBORN CHILDREN IN THOSE STATES THAT IDD
NOT PROVIDE FOR THEM IN THEIR LOCAL AFDC PLANS THAT THE AGENCY
CONTENDED THAT UNBORN CHILDREN WERE NOT REALLY WITHIN THE ELIGIBILITY
PROVISIONS OF 406 (A) AFTER ALL. 

AFTER THIS COURT'S DECISIONS IN KING V. SMITH, 392 U.S. 309 (1968),
TOWNSEND V. SWANK, 404 U.S. 282 (1971), AND CARLESON V. REMILLARD, 406
U.S. 598 (1972), IT APPEARED ABVIOUS THAT IF ANY CLASS OF POTENTIAL
BENEFICIARIES WAS WITHIN THE ACT'S ELIGIBILITY PROVISIONS, THE STATES
WERE REQUIRED TO PROVIDE AID TO THEM.  THUS, IF HEW HAD CHOSEN TO STICK
WITH ITS PREVIOUS INTERPRETATION THAT UNBORN CHILDREN WERE WITHIN THE
ELIGIBILITY PROVISION OF 406 (A), IT WOULD HAVE HAD TO REQUIRE THAT ALL
PARTICIPATING STATES GRANT BENEFITS FOR UNBORN CHILDREN.  ON THE OTHER
HAND, IF IT WERE DETERMNED THAT UNBORN CHILDREN WERE NOT ELIGIBLE UNDER
THE ACT, FEDERAL FINANCING WOULD NOT BE AVAILABLE EVEN IN THOSE STATES
THAT PROVIDED AFDC AID FOR THEM.  IN ORDER TO PRESERVE THE STATUS QUO,
THE AGENCY CAME UP WITH THE INVENTIVE SOLUTION OF ASCRIBING THE "UNBORN
CHILDREN" REGULATION TO ITS RULEMAKING POWER UNDER 1102 OF THE ACT, AND
THUS AVOIDING THE MANDATORY EFFECTS OF A FINDING OF "ELIGIBILITY" UNDER
406 (A). 

THIS INGENIOUS BUT LATE-BLOOMING TACTICAL SWITCH DOES LITTLE, IN MY
VIEW, TO CANCEL OUT THE EFFECT OF THELONG AND CONSISTENT PRIOR COURSE
OF ADMINISTRATIVE INTERPRETATION OF THE ACT.  SINCE THE AGENCY'S
POSITION IN THIS CASE AND RELATED CASES IS EVIDENTLY DESIGNED TO
PRESERVE ITS AUTHORITY TO EXTEND FEDERAL AID ON AN OPTIONAL BASIS IN
SPITE OF KING, TOWNSEND, AND CARLESON, I WOULD VIEW SOMEWHAT
SKEPTICALLY THE AGENCY'S ASSERTION THAT IT HAS NEVER DEEMED UNBORN
CHILDREN TO BE WITHIN THE ELIGIBILITY PROVISIONS OF 406 (A). 

EVEN IF THE AGENCY'S NEW POSITION IS NOT DISCOUNTED AS A REACTION TO
THE EXIGENCIES OF THE MOMENT, THE POLICIES UNDERLYING THE DOCTRINE OF
ADMINISTRATIVE INTERPRETATION REQUIRE MORE THAN SIMPLY PLACING A THUMB
ON THE SIDE OF THE SCALE THAT THE AGENCY CURRENTLY FAVORS.  /3/  THE
AGENCY'S DETERMININATION THAT UNBORN CHILDREN ARE ELIGIBLE FOR MATCHING
FEDERAL AID WAS MADE EARLY IN THE LIFE OF THE PROGRAM, AND THE
ADMINISTRATORS OF THE ACT DETERMINED ONLY A FEW YEARS AFTER THE ACT'S
PASSAGE THAT MAKING AFDC PAYMENTS AVAILABLE TO UNBORN CHILDREN WAS
CONSISTENT WITH THE STATUTORY PURPOSES.  THIS CONTEMPORANEOUS AND LONG
APPLIED CONSTRUCTION OF THE ELIGIBILITY PROVISION AND PURPOSES OF THE
ACT IS ENTITLED TO GREAT WEIGHT--  PARTICULARLY IN THE CASE OF A
STATUTE THAT HAS BEEN BEFORE THE CONGRESS REPEATEDLY AND HAS
BEENAMENDED NUMEROUS TIMES.  THE MAJORITY CONTENDS THAT BECAUSE OF THE
DETAILS FO THE UNSUCCESSFUL 1972 LEGISLATIVE IFFORT TO EXCLUDE UNBORN
CHILDREN FROM COVERAGE, THE RESPONDENTS CAN CLAIM LITTLE BENEFIT FROM
THE NATURAL INFERENCE THAT THE STATUTE STILL INCLUDED THEM AMONG THOSE
ELIGIBLE FOR AID.  THIS MAY BE SO, BUT IN LIGHT OF THE HISTORY OF THE
ADMINISTRATIVE INTERPRETATION OF 406 (A), I CANNOT AGREE THAT THE ACT,
IN ITS PRESENT FORM, SHOULD BE READ TO EXCLUDE THE UNBORN FROM
ELIGIBILITY. 

I DISSENT. 

/1/ BESIDES THE COURT BELOW, THE COURTS OF APPEALS HOLDING THAT
UNBORN CHILDREN ARE WITHIN THE ELIGIBILITY TERMS OF 406 (A) INCLUDE THE
FIRST, THE FOURTH, THE FIFTH, AND THE SEVENTH, SEE CARVER V. HOOKER,
501 F. 2D 1244 (CA1 1974); DOE V. LUKHARD, 493 F. 2D 54 (CA4 1974);
PARKS V. HARDEN, 504 F. 2D 861 (CA5 1974); WILSON V. WEAVER, 499 F. 2D
155 (CA7 1974).  ONLY THE SECOND CIRCUIT HAS TAKEN THE OPPOSITE VIEW,
WISDOM V. NORTON, 507 F. 2D 750 (CA2 1974). 

/2/ AMONG THE OTHER "SITUATIONS WITHIN THE SCOPE OF THE (STATUTORY)
TERM 'DIPRIVATION' (OF PARENTAL SUPPORT OF CARE(" WERE " CHILDREN
LIVING WITH BOTH FATHER OR MOTHER," 3412 (2); AND " CHILDREN OF
UNMARRIED PARENTS," 3412 (5).  IN DISCUSSING THE ELIGIBILITY OF THE
LAST GROUP, THE GRGULATIONS NOTED:  " THE ACT PROVIDES FOR THE USE OF
AID TO DEPENDENT CHILDREN AS A MAINTEANCE RESOURCE AVAILABLE ON EQUAL
TERMS TO ALL CHILDREN WHO MEET ELIGIBILITY CONDITIONS."  IBID.     /3/
THE REASONS FOR ASSIGNING WEIGHT TO AN ADMINISTRATIVE AGENCY'S
INTERPRETATION VARY IN PART ACCORDING TO THE ROLE THAT CONGRESS
INTENDED THE AGENCY TO PLAY IN THE LAWMAKING PROCESS.  WHERE THE ACT IN
QUESTION IS AN OPEN-ENDED STATUTE UNDER WHICH CONGRESS DID NOT "BRING
TO A CLOSE THE MAKING OF THE LAW," BUT LEFT THE "ROUNDING OUT OF ITS
COMMAND TO ANOTHER, SMALLER AND SPECIALIZED AGENCY," FTC V. UBEROID
CO., 343 U.S. 470, 486 (1952) (JACKSON, J., DISSENTING), THE AGENCY'S
SHIFT IN POSITION, EVEN AT A LATE DATE, SHOULD BE GIVEN SUBSTANTIAL
WEIGHT.  SEE NLRB V. J. WEINGARTEN INC., ANTE, AT 265 - 266; PHELPS
DODGE CORP. V. NLRB, 313 U.S. 177, 193 - 194 (1941).  PLAINLY, HOWEVER,
CONGRESS DID NOT INTEND THE TERM "DEPENDENT CHILD" IN THIS DETAILED AND
OFTEN-AMENDED STATUTE TO BE SUBJECT TO RE-EXAMINATION AND REDEFINITION
AS THE AGENCY'S PERCEPTIONS OF SOCIAL NEEDS CHANGED.  IN CASES SUCH AS
THIS ONE, WHERE THE AGENCY IS INTENDED MERELY TO CARRLY OUT THE
CONGRESSIONAL MANDATE, A LONGSTANDING COURSE OF ADMINISTRATIVE
INTERPRETATION IS RELEVANT PRIMARILY AS A CONTEMPORANEOUS CONSTRUCTION
OF THE ACT BY PERSONS DEALING INTIMATELY WITH ITS TERMS ON A DAY-TO-DAY
BASIS. 

RICHARD C. TURNER, ATTORNEY GENERAL OF IOWA, ARGUED THE CAUSE FOR
PETITIONERS.  WITH HIM ON THE BRIEF WAS LORNA LAWHEAD WILLIAMS, SPECIAL
ASSISTANT ATTORNEY GENERAL. 

ROBERT BARTELS ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

BRIEFS FO AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL BORK, KEITH A. JONES, AND JOHN B. RHINELANDER FOR THE UNITED
STATES; BY ROBERT L. SHEVIN, ATTORNEY GENERAL, EVA DUNKERLEY PECK, AND
CHESTER G. SENF FOR THE STATE OF FLORIDA; BY ANDREW P. MILLER, ATTORNEY
GENERAL OF VIRGINIA, AND STUART H. DUNN AND KAREN C. KINCANNON,
ASSISTANT ATTORNEYS GENERAL, FOR LUKHARD, DIRECTOR OF THE DEPARTMENT OF
WELFARE, COMMONWEALTH OF VIRGINIA; AND BY RONALD A. ZUMBRUN AND JOHN H.
FINDLEY FOR THE PACIFIC LEGAL FOUNDATION. 

GEORGE R. MOSCONE FILED A BRIEF FOR THE AMERICAN ASSOCIATION FOR
MATERNAL AND CHILD HEALTH ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :




HUFFMAN V. PURSUE, LTD., 420 U.S. 592 


       HUFFMAN ET AL. V. PURSUE, LTD.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF OHIO

        NO. 73 - 292.  ARGUED DECEMBER 10, 1974--DECIDED MARCH 18,

           1975; VACATED AND REMANDED. 


    OHIO'S PUBLIC NUISANCE STATUTE PROVIDES, INTER ALIA, THAT A

  PLACE EXHIBITING OBSCENE FILMS IS A NUISANCE, REQUIRES UP TO A

  YEAR'S CLOSURE OF ANY PLACE DETERMINED TO BE A NUISANCE, AND ALSO

  PROVIDES FOR THE SALE OF PERSONALTY USED IN CONDUCTING THE

  NUISANCE.  APPELLANT OFFICIALS INSTITUTED A PROCEEDING UNDER THE

  STATUTE IN STATE COURT AGAINST APPELLEE'S PREDECESSOR AS OPERATOR

  OF A THEATER DISPLAYING PORNOGRAPHIC FILMS.  CONCLUDING THAT THE

  DEFENDANT HAD DISPLAYED OBSCENE MOVIES, THE TRIAL COURT RENDERED

  A JUDGMENT IN APPELLANTS' FAVOR AND ORDERED THE THEATER CLOSED

  FOR A YEAR AND THE SEIZURE AND SALE OF THE PERSONAL PROPERTY USED

  IN ITS OPERATION.  APPELLEE, WHICH HAD TAKEN OVER OPERATION OF

  THE THEATER PRIOR TO THE JUDGMENT, RATHER THAN APPEALING WITHIN

  THE STATE SYSTEM, IMMEDIATELY FILED SUIT IN FEDERAL DISTRICT

  COURT UNDER 42 U.S.C. 1983, ALLEGING THAT APPELLANTS' USE OF THE

  NUISANCE STATUTE CONSTITUTED A DEPRIVATION OF CONSTITUTIONAL

  RIGHTS UNDER THE COLOR OF STATE LAW, AND SEEKING INJUNCTIVE AND

DECLARATORY RELIEF.  WITHOUT CONSIDERING WHETHER IT SHOULD HAVE

  STAYED ITS HAND IN DEFERENCE TO THE FEDERALISM PRINCIPLES SET

  FORTH IN YOUNGER V. HARRIS, 401 U.S. 37, THE DISTRICT COURT

  DECLARED THE NUISANCE STATUTE UNCONSTITUTIONAL ON FIRST AMENDMENT

  GROUNDS AND ENJOINED THE EXECUTION OF THE STATE COURT'S JUDGMENT

  INSOFAR AS IT CLOSED THE THEATER TO FILMS THAT HAD NOT BEEN

  ADJUDGED OBSCENE IN PRIOR ADVERSARY HEARINGS.  HELD:  UNDER THE

  CIRCUMSTANCES, THE PRINCIPLES OF YOUNGER ARE APPLICABLE EVEN

  THOUGH THE STATE PROCEEDING IS CIVIL IN NATURE, AND THE DISTRICT

COURT SHOULD HAVE APPLIED THE TESTS LAID DOWN IN YOUNGER IN

  DETERMINING WHETHER TO PROCEED TO THE MERITS AND SHOULD NOT HAVE

  ENTERTAINED THE ACTION UNLESS APPELLEE ESTABLISHED THAT EARLY

  INTERVENTION WAS JUSTIFIED UNDER THE EXCEPTIONS RECOGNIZED IN

  YOUNGER, WHERE THE STATE PROCEEDING IS CONDUCTED WITH AN INTENT

  TO HARASS OR IN BAD FAITH, OR THE CHALLENGED STATUTE IS

  FLAGRANTLY AND PATENTLY UNCONSTITUTIONAL.  PP. 603 - 613. 

     (A) THE COMPONENT OF YOUNGER WHICH RESTS UPON THE THREAT TO
OUR

  FEDERAL SYSTEM IF FEDERAL JUDICIAL INTERFERENCE WITH STATE

  CIMINAL PROCEEDINGS WERE PERMITTED, APPLIES EQUALLY TO A CIVIL

  PROCEEDING SUCH AS THIS, WHICH IS MORE AKIN TO A CRIMINAL

  PROSECUTION THAN ARE MOST CIVIL CASES.  PP. 603 - 605. 

(B) APART FROM ANY RIGHT WHICH APPELLEE MIGHT HAVE HAD TO

 APPEAL TO THIS COURT IF IT HAD REMAINED IN STATE COURT, IT SHOULD

  NOT, IN VIEW OF THE COMITY AND FEDERALISM INTERESTS THAT YOUNGER

  SEEKS TO PROTECT, BE PERMITTED THE LUXURY OF FEDERAL LITIGATION

  OF ISSUES PRESENTED BY ONGOING STATE PROCEEDINGS.  BUT EVEN

  ASSUMING, ARGUENDO, THAT LITIGANTS ARE ENTITLED TO A FEDERAL

  FORUM FOR RESOLUTION OF ALL FEDERAL ISSUES, THAT ENTITLEMENT IS

  MOST APPROPRIATELY ASSERTED BY A STATE LITIGANT WHEN HE SEEKS TO

  RELITIGATE A FEDERAL ISSUE ADVERSELY DETERMINED IN COMPLETED

  STATE COURT PROCEEDINGS.  PP. 605 - 607. 

     (C) REGARDLESS OF WHEN THE STATE TRIAL COURT'S JUDGMENT BECAME

  FINAL, YOUNGER STANDARDS MUST BE MET TO JUSTIFY FEDERAL

  INTERVENTION IN A STATE JUDICIAL PROCEEDING AS TO WHICH A LOSING

 LITIGANT HAS NOT EXHAUSTED HIS STATE APPELLATE REMEDIES BEFORE

  SEEKING RELIEF IN FEDERAL DISTRICT COURT.  THE CONSIDERATIONS OF

  COMITY AND FEDERALISM WHICH UNDERLIE YOUNGER PERMIT NO

  TRUNCATIONOF THE EXHAUSTION REQUIREMENT MERELY BECAUSE THE LOSING

  PARTY IN THE STATE COURT OF GENERAL JURISDICITON BELIEVES, AS

  APPELLEE DID HERE, THAT HIS CHANCES OF PREVAILING ON APPEAL ARE

  NOT AUSPICIOUS.  PP. 607 - 611. 

     (D) SINCE THE DISTRICT COURT DID NOT RULE ON THE YOUNGER
ISSUE,

  THIS CASE IS APPROPRIATE FOR REMAND SO THAT COURT MAY CONSIDER

  WHETHER IRREPRABLE INJURY CAN BE SHOWN IN LIGHT OF AN INTERVENING

  OHIO SUPREME COURT DECISION, AND IF SO, WHETHER THAT INJURY IS OF

  SUCH A NATURE THAT THE DISTRICT COURT MAY ASSUME JURISDICITON

UNDER AN EXCEPTION TO THE POLICY AGAINST FEDERAL JUDICIAL

INTERFERENCE WITH STATE COURT PROCEEDINGS OF THIS KIND.  PP.  611

  - 613. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ.,

  JOINED.  DOUGLAS, J., FILED A DISSENTING STATEMENT, POST, P.

  618.  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS

  AND MARSHALL, JJ., JOINED, POST, P. 613. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES THAT WE DECIDE WHETHER OUR DECISION IN YOUNGER V.
HARRIS, 401 U.S. 37 (1971), BARS A FEDERAL DISTRICT COURT FROM
INTERVENING IN A STATE CIVIL PROCEEDING SUCH AS THIS, WHEN THE
PROCEEDING IS BASED ON A STATE STATUTE BELIEVED BY THE DISTRICT COURT
TO BE UNCONSTITUTIONAL.  A SIMILAR ISSUE WAS RAISED IN GIBSON V.
BERRYHILL, 411 U.S. 564 (1973), BUT WE WERE NOT REQUIRED TO DECIDE IT
BECAUSE THERE THE ENJOINED STATE PROCEEDINGS WERE BEFORE A BIASED
ADMINISTRATIVE BODY WHICH COULD NOT PROVIDE A NECESSARY PREDICATE FOR A
YOUNGER DISMISSAL, THAT IS, "THE OPPORTUNITY TO RAISE AND HAVE TIMELY
DECIDED BY A COMPETENT STATE TRIBUNAL THE FEDERAL ISSUES INVOLVED." 
ID., AT 577.  SIMILARLY, IN SPEIGHT V. SLATON, 415 U.S. 333 (1974), WE
NOTED PROBABLE JURISDICTION TO CONSIDER THE APPLICABILITY OF YOUNGER TO
NONCRIMINAL CASES, BUT REMANDED FOR RECONSIDERATION IN LIGHT OF A
SUBSEQUENT DECISION OF THE GEORGIA SUPREME COURT WHICH STRUCK DOWN THE
CHALLENGED STATUTE ON SIMILAR FACTS.  TODAY WE DO REACH THE ISSUE, AND
CONCLUDE THAT IN THE CIRCUMSTANCES PRESENTED HERE THE PRINCIPLES OF
YOUNGER ARE APPLICABLE EVEN THOUGH THE STATE PROCEEDING IS CIVIL IN
NATURE.  /1/

        I 

APPELLANTS ARE THE SHERIFF AND PROSECUTING ATTORNEY OF ALLEN COUNTY,
OHIO.  THIS CASE ARISES FROM THEIR EFFORTS TO CLOSE THE CINEMA I
THEATRE, IN LIMA, OHIO.  UNDER THE MANAGEMENT OF BOTH ITS CURRENT
TENANT, APPELLEE PURSUE, LTD., AND APPELLEE'S PREDECESSOR, WILLIAM
DAKOTA, THE CINEMA I HAS SPECIALIZED IN THE DISPLAY OF FILMS WHICH MAY
FAIRLY BE CHARACTRIZED AS PORNOGRAPHIC, /2/ AND WHICH IN NUMEROUS
INSTANCES HAVE BEEN ADJUDGED OBSCENE AFTER ADVERSARY HEARINGS. 

APPELLANTS SOUGHT OT INVOKE THE OHIO PUBLIC NUISANCE STATUTE, OHIO
REV. CODE ANN. 3767.01 ET SEQ. (1971), AGAINST APPELLEE.  SECTION
3767.01 (C) /3/ PROVIDES THAT A PLACE WHICH EXHIBITS OBSCENE /4/ FILMS
IS A NUISANCE, WHILE 3767.06 /5/ REQUIRES CLOSURE FOR UP TO A YEAR OF
ANY PLACE DETERMINED TO BE A NUISANCE.  THE STATUTE ALSO PROVIDES FOR
PRELIMINARY INJUNCTIONS PENDING FINAL DETERMINATION OF STATUS AS A
NUISANCE, /6/ FOR SALE OF ALL PERSONAL PROPERTY USED IN CONDUCTING THE
NUISANCE, /7/ AND FOR RELEASE FROM A CLOSURE ORDER UPON SATISFACTION OF
CERTAIN CONDITIONS (INCLUDING A SHOWING THAT THE NUISANCE WILL NOT BE
RE-ESTABLISHED).  /8/ HC #597 

APPELLANTS INSTITUTED A NUISANCE PROCEEDING IN THE COURT OF COMMON
PLEAS OF ALLEN COUNTY AGAINST APPELLEE'S PREDECESSOR, WILLIAM DAKOTA. 
DURING THE COURSE OF THE SOMEWHAT INVOLVED LEGAL PROCEEDINGS WHICH
FOLLOWED, THE COURT OF COMMON PLEAS REVIEWED 16 MOVIES WHICH HAD BEEN
SHOWN AT THE THEATER.  THE COURT RENDERED A JUDGMENT THAT DAKOTA HAD
ENGAGED IN A COURSE OF CONDUCT OF DISPLAYING OBSCENE MOVIES AT THE
CINEMA I, AND THAT THE THEATER WAS THEREFORE TO BE CLOSED, PURSUANT TO
OHIO REV. CODE ANN. 3767.06 (1971), "FOR ANY PURPOSE FOR A PERIOD OF
ONE YEAR UNLESS SOONER RELEASED BY ORDER OF (THE) COURT PURSUANT TO
DEFENDANT-OWNERS FULFILLING THE REQUIREMENTS PROVIDED IN SECTION
3767.04 OF THE REVISED CODE OF OHIO."  THE JUDGMENT ALSO PROVIDED FOR
THE SEIZURE AND SALE OF PERSONAL PROPERTY USED IN THE THEATER'S
OPERATIONS.  /9/ 

APPELLEE, PURSUE, LTD., HAD SUCCEEDED TO WILLIAM DAKOTA'S LEASEHOLD
INTEREST IN THE CINEMA I PRIOR TO ENTRY OF THE STATE COURT JUDGMENT. 
RATHER THAN APPEALING THAT JUDGMENT WITHIN THE OHIO CURT SYSTEM, IT
EMMEDIATELY FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO.  THE OCMPLAINT WAS BASED ON 42 U.S.C. 1983
AND ALLEGED THAT APPELLANTS' USE OF OHIO'S NUISANCE STATUTE CONSTITUTED
A DEPRIVATION OF CONSTITUTIONAL RIGHTS UNDER THE COLOR OF STATE LAW. 
IT SOUGHT INJUNCTIVE RELIEF AND A DECLARATORY JUDGMENT THAT THE STATUTE
WAS UNCONSTITUTIONAL AND UNENFORCEABLE.  /10/ SINCE THE COMPLAINT WAS
DIRECTED AGAINST THE CONSTITUTIONALITY OF A STATE STATUTE, A THREE
JUDGE COURT WAS CONVENED.  /11/  THE DISTRICT COURT CONCLUDED THAT
WHILE THE STATUTE WAS NOT VAGUE, IT DID CONSTITUTE AN OVERLY BROAD
PRIOR RESTRAINT ON FIRST AMENDMENT RIGHTS INSOFAR AS IT PERMANENTLY OR
TEMPORARILY PREVENTED THE SHOWING OF FILMS WHICH HAD NOT BEEN ADJUDGED
OBSCENE IN PRIOR ADVERSARY HEARINGS.  CR. NEAR V. MINNESOTA EX REL.
OLSON, 283 U.S. 697 (1931).  FASHIONING ITS REMEDY TO MATCH THE
PERCEIVED CONSTITUTIONAL DEFECT, THE COURT PERMANENTLY ENJOINED THE
EXECUTION OF THATPORTION OF THE STATE COURT'S JUDGMENT THAT CLOSED THE
CINEMA I TO FILMS WHICH HAD NOT BEEN ADJUDGED OBSCENE.  /12/ THE
JUDGMENT AND OPINION OF THE DISTRICT COURT GIVE NO INDICATION THAT IT
CONSIDERED WHETHER IT SHOULD HAVE STAYED ITS HAND IN DEFERENCE TO THE
PRINCIPLES OF FEDERALISM WHICH FIND EXPRESSION IN YOUNGER V. HARRIS,
401 U.S. 37 (1971). 

ON THIS APPEAL, APPELLANTS RAISE THE YOUNGER PROBLEM, AS WELL AS A
VARIETY OF CONSTITUTIONAL AND STATUTORY ISSUES.  WE NEED CONSIDER ONLY
THE APPLICABILITY OF YOUNGER. 

        II 

YOUNGER AND ITS COMPANION CASES /13/ CONSIDERED THE PROPRIETY OF
FEDERAL COURT INTERVENTION IN PENDING STATE CRIMINAL PROSECUTIONS.  THE
ISSUE WAS NOT A NOVEL ONE, AND THE COURT RELIED HEAVILY ON FENNER V.
BOYKIN, 271 U.S. 240 (1926), AND SUBSEQUENT CASES /14/ WHICH ENDORSED
ITS HOLDING THAT FEDERAL INJUNCTIONS AGAINST THE STATE CRIMINAL LAW
ENFORCEMENT PROCESS COULD BE ISSUED ONLY "UNDER EXTRAORDINARY
CIRCUMSTANCES WHERE THE DANGER OF IRREPARABLE LOSS IS BOTH GREAT AND
IMMEDIATE."  ID., AT 243.  YOUNGER ITSELF INVOLVED A CHALLENGED TO A
PROSECUTION UNDER THE CALIFORNIA CRIMINAL SYNDICALISM ACT, WHICH
ALLEGEDLY WAS UNCONSTITUTIONAL ON ITS FACE.  IN AN OPINION FOR THE
COURT BY MR. JUSTICE BLACK, WE OBSERVED THAT "IT HAS BEEN PERFECTLY
NATURAL FOR OUR CASES TO REPEAT TIME AND TIME AGAIN THAT THE NORMAL
THING TO DO WHEN FEDERAL COURTS IS NOT TO ISSUE SUCH INJUNCTIONS."  401
U.S., AT 45.  WE NOTED THAT NOT ONLY HAD A CONGRESSIONAL STATUTE
MANIFESTED AN INTEREST IN PERMITTING STATE COURTS TO TRY STATE CASES,
/15/ BUT THAT THERE HAD ALSO LONG EXISTED A STRONG JUDICIAL POLICY
AGAINST FEDERAL INTERFERENCE WITH STATE CRIMINAL PROCEEDINGS.  WE
RECOGNIZED THAT THIS JUDICIAL POLICY IS BASED IN PART ON THE TRADIONAL
DOCTRINE THAT A COURT OF EQUITY SHOULD STAY ITS HAND WHEN A MOVANT HAS
AN ADEQUATE REMEDY AT LAW, AND THAT IT "PARTICULARLY SHOULD NOT ACT TO
RESTRAIN A CRIMINAL PROSECUTION."  ID., AT 43.  BUT WE WENT ON TO
EXPLAIN THAT THIS DOCTRINE "IS REINFORCED BY AN EVEN MORE VITAL
CONSIDERATION," AN ASPECT OF FEDERALISM WHICH WE DESCRIBED AS 

"THE NOTION OF 'COMITY,' THAT IS, A PROPER RESPECT FOR STATE
FUNCTIONS, A RECOGNITION OF THE FACT THAT THE ENTIRE COUNTRY IS MADE UP
OF A UNION OF SEPARATE STATE GOVERNMENTS, AND A CONTINUANCE OF THE
BELIEF THAT THE NATIONAL GOVERNMENT WILL FARE BEST IF THE STATES AND
THEIR INSTITUTIONS ARE LEFT FREE TO PERFORM THEIR SEPARATE FUNCTIONS IN
THEIR SEPARATE WAYS."  ID., AT 44. 

CENTRAL TO YOUNGER WAS THE RECOGNITION THAT OURS IS A SYSTEM IN
WHICH 

"THE NATIONAL GOVERNMENT, ANXIOUS THOUGH IT MAY BE TO VINDICATE AND
PROTECT FEDERAL RIGHTS AND FEDERAL INTERESTS, ALWAYS ENDEAVORS TO DO SO
IN WAYS THAT WILL NOT UNDULY INTERFERE WITH THE LEGITIMATE ACTIVITIES
OF THE STATES."  IBID.  WE REAFFIRMED THE REQUIREMENT OF FENNER V.
BOYKIN THAT EXTRAORDINARY CIRCUMSTANCES MUST BE PRESENT TO JUSTIFY
FEDERAL INJUNCTIVE RELIEF AGAINST STATE CRIMINAL PROSECUTIONS.  ECHOING
FENNER, WE STATED THAT A MOVANT MUST SHOW NOT MERELY THE "IRREPARABLE
INJURY" WHICH IS A NORMAL PREREQUISITE FOR AN INJUNCTION, BUT ALSO MUST
SHOW THAT THE INJURY WOULD BE "'GREAT AND IMMEDIATE.'"  401 U.S.,A T
46.  THE OPINION ALSO SUGGESTED THAT ONLY IN EXTRAORDINARY SITUATIONS
COULD THE NECESSARY INJURY BE SHOWN IF THE PROSECUTION WAS CONDUCTED IN
GOOD FAITH AND WITHOUT AN INTENT TO HARASS.  ID.,A T 54.  IT WAS
PARTICULARLY NOTED THAT THE "COST, ANXIETY, AND INCONVENIENCE OF HAVING
TO DEFEND AGAINST A SINGLE CRIMINAL PROSECUTION" WAS NOT THE TYPE OF
INJURY THAT COULD JUSTIFY FEDERAL INTERFERENCE.  ID., AT 46.  /16/ 

IN YOUNGER WE ALSO CONSIDERED WHETHER THE POLICY OF NONINTERFERENCE
HAD BEEN MODIFIED BY OUR DECISION IN DOMBROWSKI V. PFISTER, 380 U.S.
479 (1964), AT LEAST INSOFAR AS CONCERNS FIRST AMENDMENT ATTACKS ON
STATUTES THOUGHT TO BE FACIALLY INVALID.  WE OBSERVED TAHT THE ARRESTS
AND THREATENED PROSECUTIONS IN DOMBROWSKI WERE ALLEGED TO HAVE BEEN IN
BAD FAITH AND EMPLOYED AS A MEANS OF HARASSING THE FEDERAL COURT
PLAINTIFFS.  THAT CASE WAS THUS WITHIN THE TRADITIONAL NARROW
EXCEPTIONS TO THE DOCTRINE THAT FEDERAL COURTS SHOULD NOT INTERFERE
WITH STATE PROSECUTIONS.  WE ACKNOWLEDGED IN YOUNGER THTA IS IS "'OF
COURSE CONCEIVABLE THTA A STATUTE MIGHT BE FLAGRANTLY AND PATENTLY
VIOLATIVE OF EXPRESS CONSTITUTIONAL PROHIBITIONS IN EVERY CLAUSE,
SENTENCE AND PARAGRAPH, AND IN WHATEVER MANNER AND AGAINST WHOMEVER AN
EFFORT MIGHT BE MADE TO APPLY IT,'" AND THAT SUCH A SITUATION MIGHT
JUSTIFY FEDERAL INTERVENTION, 401 U.S., AT 53 - 54.  BUT WE
UNEQUIVOCALLY HELD THAT FACIAL INVALIDITY OF A STATUTE IS NOT ITSELF AN
EXCEPTIONAL CIRCUMSTANCE JUSTIFYING FEDERAL INTERFERENCE WITH STATE
CRIMINAL PROCEEDINGS. 

IN STEFFEL V. THOMPSON, 415 U.S. 452 (1974), WE CONSIDERED WHETHER
YOUNGER REQUIRED EXCEPTIONAL CIRCUMSTANCES TO JUSTIFY FEDERAL
DECLARATORY RELIEF AGAINST STATE CRIMINAL STATUTES WHEN A PROSECUTION
WAS NOT PENDING.  IN CONCLUDING THAT IT DID NOT, WE HAD OCCASION TO
IDENTIFY MORE SPECIFICALLY SOME OF THE MEANS BY WHICH FEDERAL
INTERFERENCE WITH STATE PROCEEDINGS MIGHT VIOLATE THE PRINCIPLES OF
COMITY AND FEDERALISM ON WHICH YOUNGER IS BASED.  WE NOTED THAT "THE
RELEVANT PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM 'HAVE LITTLE
FORCE IN THE ABSENCE OF A PENDING STATE PROCEEDING.'"  ID., AT 462.  WE
EXPLAINED:

  WHEN NO STATE CRIMINAL PROCEEDING IS PENDING AT THE TIME THE
FEDERAL COMPLAINT IS FILED,

  FEDERAL INTERVENTION DOES NOT RESULT IN DUPLICATIVE LEGAL
PROCEEDINGS OR DISRUPTION OF THE

STATE CRIMINAL JUSTICE SYSTEM; NOR CAN DEDERAL INTERVENTION, IN THAT
CIRCUMSTANCE, BE

  INTERPRETED AS REFLECTING NEGATIVELY UPON THE STATE COURT'S
ABILITY TO ENFORCE CONSTITUTIONAL

  PRINCIPLES."  IBID. 

IT IS AGAINST THIS BACKGROUND THAT WE CONSIDER THE PROPRIETY OF
FEDERAL COURT INTERVENTION WITH THE OHIO NUISANCE PROCEEDING AT ISSUE
IN THIS CASE. 

  III 

THE SERIOUSNESS OF FEDERAL JUDICIAL INTERFERENCE WITH STATE CIVIL
FUNCTIONS HAS LONG BEEN RECOGNIZED BY THIS COURT.  WE HAVE CONSISTENTLY
REQUIRED THAT WHEN FEDERAL COURTS ARE CONFRONTED WITH REQUESTS FOR SUCH
RELIEF, THEY SHOULD ABIDE BY STANDARDS OF RESTRAINT THAT GO WELL BEYOND
THOSE OF PRIVATE EQUITY JURISPRUDENCE.  FOR EXAMPLE, AMSSACHUSETTS
STATE GRANGE V. BENTON, 272 U.S. 525 (1926), INVOLVED AN EFFORT TO
ENJOIN THE OPERATION OF A STATE DAYLIGHT SAVINGS ACT.  WRITING FOR THE
COURT, MR. JUSTICE HOLMES CITED FENNER V. BOYKIN, SUPRA, AND EMPHASIZED
A RULE THAT "SHOULD BE VERY STRICTLY OBSERVED," 272 U.S., AT 529, "THAT
NO INJUNCTION OUGHT TO ISSUE AGAINST OFFICERS OF A STATE CLOTHES WITH
AUTHORITY TO ENFORCE THE LAW IN QUESTION, UNLESS IN A CASE REASONABLY
FREE FROM DOUBT AND WHEN NECESSARY TO PREVENT GREAT AND IRREPARABLE
INJURY."  ID., AT 527. 

ALTHOUGH MR. JUSTICE HOLMES WAS CONFRONTED WITH A BILL SEEKING AN
INJUNCTION AGAINST STATE EXECUTIVE OFFICERS, RATHER THAN AGAINST STATE
JUDICIAL PROCEEDINGS, WE THINK THAT THE RELEVANT CONSIDERATIONS OF
FEDERALISM ARE OF NO LESS WEIGHT IN THE LATTER SETTING.  IF ANYTHING,
THEY COUNSEL MORE HEAVILY TOWARD FEDERAL RESTRAINT, SINCE INTERFERENCE
WITH A STATE JUDICIAL PROCEEDING PREVENTS THE STATE NOT ONLY FROM
EFFECTUATING ITS SUBSTANTIVE POLICIES, BUT ALSO FROM CONTINUING TO
PERFORM THE SEPARATE FUNCTION OF PROVIDING A FORUM COMPETENT TO
VINDICATE ANY CONSTITUTIONAL OBJECTIONS INTERPOSED AGAINST THOSE
POLICIES.  SUCH INTERFERENCE ALSO RESULTS IN DUPLICATIVE LEGAL
PROCEEDINGS, AND CAN READILY BE INTERPRETED "AS REFLECTING NEGATIVELY
UPON THE STATE COURT'S ABILITY TO ENFORCE CONSTITUTIONAL PRINCIPLES." 
CF. STEFFEL V. THOMPSON, SUPRA, AT 462. 

THE COMPONENT OF YOUNGER WHICH RESTS UPON THE THREAT TO OUR FEDERAL
SYSTEM IS THUS APPLICABLE TO A CIVIL PROCEEDING SUCH AS THIS QUITE AS
MUCH AS IT IS TO A CRIMINAL PROCEEDING.  YOUNGER, HOWEVER, ALSO RESTS
UPON THE TRADITIONAL RELUCTANCE OF COURTS OF EQUITY, EVEN WITHIN A
UNITARY SYSTEM, TO INTERFERE WITH A CRIMINAL PROSECUTION.  STRICTLY
SPEAKING, THIS ELEMENT OF YOUNGER IS NOT AVILABLE TO MANDATE FEDERAL
RESTRAINT IN CIVIL CASES.  BUT WHATEVER MAY BE THE WEIGHT ATTACHED TO
THIS FACTOR IN CIVIL LITIGATION INVOLVING PRIVATE PARTIES, WE DEAL HERE
WITH A STATE PROCEEDING WHICH IN IMPORTANT RESPECTS IS MORE AKIN TO A
CRIMINAL PROSECUTION THAN ARE MOST CIVIL CASES.  THE STATE IS A PARTY
TO THE COURT OF COMMON PLEAS PROCEEDING, AND THE PROCEEDING IS BOTH IN
AID OF AND CLOSELY RELATED TO CRIMINAL STATUTES WHICH PROHIBIT THE
DISSEMINATION OF OBSCENE MATERIALS.  THUS, AN OFFENSE TO THE STATE'S
INTEREST IN THE NUISANCE LITIGATION IS LIKELY TO BE EVERY BIT AS GREAT
AS IT WOULD BE WERE THIS A CRIMINAL PROCEEDING.  CF. YOUNGER V. HARRIS,
401 U.S., AT 55 N. 2 (STEWART, J., CONCURRING).  SIMILARLY, WHILE IN
THIS CASE THE DISTRICT COURT'S INJUNCTION HAS NOT DIRECTLY DISRUPTED
OHIO'S CRIMINAL JUSTICE SYSTEM, IT HAS DISRUPTED THAT STATE'S EFFORTS
TO PROTECT THE VERY INTERESTS WHICH UNDERLIE ITS CRIMINAL LAWS AND TO
OBTAIN COMPLIANCE WITH PRECISELY THE STANDARDS WHICH ARE EMPODIED IN
ITS CRIMINAL LAWS.  /17/             IV 

IN SPITE OF THE CRITICAL SIMILARITIES BETWEEN A CRIMINAL PROSECUTION
AND OHIO NUISANCE PROCEEDINGS, APPELLEE NONETHELESS URGES THAT THERE IS
ALSO A CRITICAL DIFFERENCE BETWEEN THE TWO WHICH SHOULD CAUSE US TO
LIMIT YOUNGER TO CRIMINAL PROCEEDINGS.  THIS DIFFERENCE, SAYS APPELLEE,
IS THAT WHEREAS A STATE COURT CRIMINAL DEFENDANT MAY, AFTER EXHAUSTION
OF HIS STATE REMEDIES, PRESENT HIS CONSTITUTIONAL CLAIMS TO THE FEDERAL
COURTS THROUGH HABEAS CORPUS, NO ANALOGOUS REMEDY IS AVAILABLE TO ONE,
LIKE APPELLEE, WHOSE CONSTITUTIONAL RIGHTS MAY HAVE BEEN INFRINGED IN A
STATE PROCEEDING WHICH CANNOT RESULT IN CUSTODIAL DETENTION OR OTHER
CRIMINAL SANCTION. 

A CIVIL LITIGANT MAY, OF COURSE, SEEK REVIEW IN THIS COURT OF ANY
FEDERAL CLAIM PROPERLY ASSERTED IN AND REJECTED BY STATE COURTS. 
MOREOVER, WHERE A FINAL DECISION OF A STATE COURT HAS SUSTAINED
THEVALIDITY OF A STATE STATUTE CHALLENGED ON FEDERAL CONSTITUTIONAL
GROUNDS, AN APPEAL TO THIS COURT LIES AS A MATTER OF RIGHT.  28 U.S.C.
1257 (2).  THUS, APPELLEE IN THIS CASE WAS ASSURED OF EVENTUAL
CONSIDERATION OF ITS CLAIM BY THIS COURT.  BUT QUITE APART FROM
APPELLEE'S RIGHT TO APPEAL HAD IT REMAINED IN STATE COURT, WE CONCLUDE
THAT IT SHOULD NOT BE PERMITTED THE LUXURY OF FEDERAL LITIGATION OF
ISSUES PRESENTED BY ONGOING STATE PROCEEDINGS, A LUXURY WHICH, AS WE
HAVE ALREADY EXPLAINED, IS QUITE COSTLY IN TERMS OF THE INTERESTS WHICH
YOUNGER SEEKS TO PROTECT. 

APPELLEE'S ARGUMENT, THAT BECAUSE THERE MAY BE NO CIVIL COUNTERPART
TO FEDERAL HABEAS IT SHOULD HAVE CONTEMPORANEOUS ACCESS TO A FEDERAL
FORUM FOR ITS FEDERAL CLAIM, APPARENTLY DEPENDS ON THE UNARTICULATED
MAJOR PREMISE THAT EVERY LITIGANT WHO ASSERTS A FEDERAL CLAIM IS
ENTITLED TO HAVE IT DECIDED ON THE MERITS BY A FEDERAL, RATHER THAN A
STATE, COURT.  WE NEED NOT CONSIDER THE VALIDITY OF THIS PREMISE IN
ORDER TO REJECT THE RESULT WHICH APPELLEE SEEKS.  EVEN ASSUMING,
ARGUENDO, THAT LITIGANTS ARE ENTITLED TO A FEDERAL FORUM FOR THE
RESOLUTION OF ALL FEDERAL ISSUES, THAT ENTITLEMENT IS MOST
APPROPRIATELY ASSERTED BY A STATE LITIGANT WHEN HE SEEKS TO RELITIGATE
A FEDERAL ISSUE ADVERSELY DETERMINED IN COMPLETED STATE COURT
PROCEEDINGS.  /18/ WE DO NOT UNDERSTAND WHY THE FEDERAL FORUM MUST BE
AVAILABLE PRIOR TO COMPLETION OF THE STATE PROCEEDINGS IN WHICH THE
FEDERAL ISSUE ARISES, AND THE CONSIDERATIONS CANVASSED IN YOUNGER
MILITATE AGAINST SUCH A RESULT. 

THE ISSUE OF WHETHER FEDERAL COURTS SHOULD BE ABLE TO INTERFERE WITH
ONGOING STATE PROCEEDINGS IS QUITE DISTINCT AND SEPARATE FROM THE ISSUE
OF WHETHER LITIGANTS ARE ENTITLED TO SUBSEQUENT FEDERAL REVIEW OF STATE
COURT DISPOSITIONS OF FEDERAL QUESTIONS.  YOUNGER TURNED ON
CONSIDERATIONS OF COMITY AND FEDERALISM PECULIAR TO THE FACT THAT STATE
PROCEEDINGS WERE PENDING; IT DID NOT TURN ON THE FACT THAT IN ANY EVENT
A CRIMINAL DEFENDANT COULD EVENTUALLY HAVE OBTAINED FEDERAL HABEAS
CONSIDERATION OF HIS FEDERAL CLAIMS.  THE PROPRIETY OF FEDERAL COURT
INTERFERENCE WITH AN OHIO NUICANCE PROCEEDING MUST LIKEWISE BE
CONTROLLED BY APPLICATION OF THOSE SAME CONSIDERATIONS OF COMITY AND
FEDERALISM. 

INFORMED BY THE RELEVANT PRINCIPLES OF COMITY AND FEDERALISM, AT
LEAST THREE COURTS OF APPEALS HAVE APPLIED YOUNGER WHEN THE PENDING
STATE PROCEEDINGS WERE CIVIL IN NATURE.  SEE DUKE V. TEXAS, 477 F. 2D
244 (CA5 1973); LYNCH V. SNEPP, 472 F. 2D 769 (CA4 1973); COUSINS V.
WIGODA, 463 F. 2D 603 (CA7 1972).  FOR THE PURPOSES OF THE CASE BEFORE
US, HOWEVER, WE NEED MAKE NO GENERAL PRONOUNCEMENTS UPON THE
APPLICABILITY OF YOUNGER TO ALL CIVIL LITIGATION.  IT SUFFICES TO SAY
THAT FOR THE REASONS HERETOFORE SET OUT, WE CONCLUDE THAT THE DISTRICT
COURT SHOULD HAVE APPLIED THE TESTS LAID DOWN IN YOUNGER IN DETERMINING
WHETHER TO PROCEED TO THE MERITS OF APPELLEE'S PRAYER FOR RELIEF
AGAINST THIS OHIO CIVIL NUISANCE PROCEEDING. 

        V 

APPELLEE CONTENDS THAT EVEN IF YOUNGER IS APPLICABLE TO CIVIL
PROCEEDINGS OF THIS SORT, IT NONETHELESS DOES NOT GOVERN THIS CASE
BECAUSE AT THE TIME THE DISTRICT COURT ACTED THERE WAS NO LONGER A
"PENDING STATE COURT PROCEEDING" AS THAT TERM IS USED IN YOUNGER. 
YOUNGER AND SUBSEQUENT CASES SUCH AS STEFFEL HAVE USED THE TERM
"PENDING PROCEEDING" TO DISTINGUISH STATE PROCEEDINGS WHICH HAVE
ALREADY COMMENCED FROM THOSE WHICH ARE MERELY INCIPIENT OR THREATENED. 
HERE, OF COURSE, THE STATE PROCEEDING HAD BEGUN LONG BEFORE APPELLEE
SOUGHT INTERVENTION BY THE DISTRICT COURT.  BUT APPELLEE'S POINT, WE
TAKE IT, IS NOT THAT THE STATE PROCEEDING HAD NOT BEGUN, BUT THAT IT
HAD ENDED BY THE TIME ITS DISTRICT COURT COMPLAINT WAS FILED.  /19/ 

APPELLEE APPARENTLY RELIES ON THE FACTS THAT THE ALLEN COUNTY COURT
OF COMMON PLEAS HAD ALREADY ISSUED ITS JUDGMENT AND PERMANENT
INJUNCTION WHEN THIS ACTION WAS FILED, AND THAT NO APPEAL FROM THAT
JUDGMENT HAS EVER BEEN TAKEN TO OHIO'S APPELLATE COURTS.  AS A MATTER
OF STATE PROCEDURE, THE JUDGMENT PRESUMABLY BECAME FINAL, IN THE SENSE
OF BEING NONAPPEALABLE, AT SOME POINT AFTER THE DISTRICT COURT FILING,
POSSIBLY PRIOR TO ENTRY OF THE DISTRICT COURT'S OWN JUDGMENT, BUT
SURELY AFTER THE SINGLE JUDGE STAYED THE STATE COURT'S JUDGMENT.  WE
NEED NOT, HOWEVER, ENGAGE IN SUCH INQUIRY.  FOR REGARDLESS OF WHEN THE
COURT OF COMMON PLEAS' JUDGMENT BECAME FINAL, WE BELIEVE THAT A
NECESSARY CONCOMITANT OF YOUNGER IS THAT A PARTY IN APPELLEE'S POSTURE
MUST EXHAUST HIS STATE APPELLATE REMEDIES BEFORE SEEKING RELIEF IN THE
DISTRICT COURT, UNLESS HE CAN BRING HIMSELF WITHIN ONE OF THE
EXCEPTIONS SPECIFIED IN YOUNGER. 

VIRTUALLY ALL OF THE EVILS AT WHICH YOUNGER IS DIRECTED WOULD INHERE
IN FEDERAL INTERVENTION PRIOR TO COMPLETION OF STATE APPELLATE
PROCEEDINGS, JUST AS SURELY AS THEY WOULD IF SUCH INTERVENTION OCCURRED
AT OR BEFORE TRIAL.  INTERVENTION AT THE LATER STAGE IS IF ANYTHING
MORE HIGHLY DUPLICATIVE, SINCE AN ENTIRE TRIAL HAS ALREADY TAKEN PLACE,
AND IT IS ALSO A DIRECT ASPERSION ON THE CAPABILITIES AND GOOD FAITH OF
STATE APPELLATE COURTS.  NOR, IN THESE STATE-INITIATED NUISANCE
PROCEEDINGS, IS FEDERAL INTERVENTION AT THE APPELLATE STAGE ANY THE
LESS A DISRUPTION OF THE STATE'S EFFORTS TO PROTECT INTERESTS WHICH IT
DEEMS IMPORTANT.  INDEED, IT IS LIKELY TO BE EVEN MORE DISRUPTIVE AND
OFFENSIVE BECAUSE THE STATE HAS ALREADY WON A NISI PRIUS DETERMINATION
THAT ITS VALID POLICIES ARE BEING VIOLATED IN A FASHION WHICH JUSTIFIES
JUDICAL ABATEMENT. 

FEDERAL POST-TRIAL INTERVENTION, IN A FASHION DESIGNED TO ANNUL THE
RESULTS OF A STATE TRIAL, ALSO DEPRIVES THE STATES OF A FUNCTION WHICH
QUITE LEGITIMATELY IS LEFT TO THEM, THAT OF OVERSEEING TRIAL COURT
DISPOSITIONS OF CONSTITUTIONAL ISSUES WHICH ARISE IN CIVIL LITIGATION
OVER WHICH THEY HAVE JURISDICITON.  /20/ WE THINK THIS CONSIDERATION TO
BE OF SOME IMPORTANCE BECAUSE IT IS TYPICALLY A JUDICIAL SYSTEM'S
APPELLATE COURTS WHICH ARE BY THEIR NATURE A LITIGANT'S MOST
APPROPRIATE FORUM FOR THE RESOLUTION OF CONSTITUTIONAL CONTENTIONS. 
ESPECIALLY IS THIS TRUE WHEN, AS HERE, THE CONSTITUTIONAL ISSUE
INVOLVES A STATUTE WHICH IS CAPABLE OF JUDICIAL NARROWING.  IN SHORT,
WE DO NOT BELIEVE THAT A STATE'S JUDICIAL SYSTEM WOULD BE FAIRLY
ACCORDED THE OPPORTUNITY TO RESOLVE FEDERAL ISSUES ARISING IN ITS
COURTS IF A FEDERAL DISTRICT OCURT WERE PERMITTED TO SUBSTITUTE ITSELF
FOR THE STAT'S APPELLATE COURTS.  WE THEREFORE HOLD THAT YOUNGER
STANDARDS MUST BE MET TO JUSTIFY FEDERAL INTERVENTION IN A STATE
JUDICIAL PROCEEDING AS TO WHICH A LOSING LITIGANT HAS NOT EXHAUSTED HIS
STATE APPELLATE REMEDIES.  /21/ 

AT THE TIME APPELLEE FILED ITS ACTION IN THE UNITED STATES DISTRICT
COURT, IT HAD AVAILABLE THE REMEDY OF APPEAL TO THE OHIO APPELLATE
COURTS.  APPELLEE NONETHELESS CONTENDS THAT EXHAUSTION OF STATE
APPELLATE REMEDIES SHOULD NOT BE REQUIRED BECAUSE AN APPEAL WOULD HAVE
BEEN "FUTILE."  THIS CLAIM IS BASED ON THE DECISION OF THE SUPREME
COURT OF OHIO IN STATE, EX REL. KEATING V. A MOTION PICTURE FILM
ENTITLED "  VIXEN," 27 OHIO ST. 2D 278, 272 N.E. 2D 137 (1971), WHICH
HAD BEEN RENDERED AT THE TIME OF THE PROCEEDINGS IN THE COURT OF COMMON
PLEAS.  WHILE KEATING DID UPHOLD THE USE OF A NUISANCE STATTUE AGAINST
A FLIM WHICH RAN AFOUL OF OHIO'S STATUTORY DEFINITION OF OBSCENITY, IT
HAD ABSOLUTELY NOTHING TO SAY WITH RESPECT TO APPELLEE'S PRINCIPAL
CONTENTION HERE, THAT OF WHETHER THE FIRST AND FOURTEENTH AMENDMENTS
PROHIBIT A BLANKET INJUNCTION AGAINST A SHOWING OF FIILMS, INCLUDING
THOSE WHICH HAVE NOT BEEN ADJUDGED OBSCENE IN ADVERSARY PROCEEDINGS. 
WE THEREFORE HAVE DIFFICULTY UNDERSTANDING APPELLEE'S BELIEF THAT AN
APPEAL WAS DOOMED TO FAILURE. 

MORE IMPORTANTLY, WE ARE OF THE OPINION THAT THE CONSIDERATIONS OF
COMITY AND FEDERALISM WHICH UNDERLIE YOUNGER PERMIT NO TRUNCATION OF
THE EXHAUSTIONREQUIREMENT MERELY BECAUSE THE LOSING PARTY IN THE STATE
COURT OF GENERAL JURISDICTION BELIEVES THAT HIS CHANCES OF SUCCESS ON
APPEAL ARE NOT AUSPICIOUS.  APPELLEE OBVIOUSLY BELIEVES ITSELF POSSED
OF A VIABLE FEDERAL CLAIM, ELSE IT WOULD NOT SO ASSIDOUSLY SEEK TO
LITIGATE IN THE DISTRICT COURT.  YET, ART. VI OF THE UNITED STATES
CONSTITUTION DECLARES THAT "THE JUDGES IN EVERY STATE SHALL BE BOUND"
BY THE FEDERAL CONSTITUTION, LAWS, AND TREATIES.  APPELLEE IS IN TRUTH
URGING US TO BASE A RULE ON THE ASSUMPTION THAT STATE JUDGES WILL NOT
BE FAITHFUL TO THEIR CONSTITUTIONAL RESPONSIBILITIES.  THIS WE REFUSE
TO DO.  THE DISTRICT COURT SHOULD NOT HAVE ENTERTAINED THIS ACTION,
SEEKING PREAPPEAL INTERFERENCE WITH A STATE JUDICIAL PROCEEDING, UNLESS
APPELLEE ESTABLISHED THAT EARLY INTERVENTION WAS JUSTIFIED UNDER ONE OF
THE EXCEPTIONS RECOGNIZED IN YOUNGER.  /22/

        VI 

YOUNGER, AND ITS CIVIL COUNTERPART WHICH WE APPLY TODAY, DO OF
COURSE ALLOW INTERVENTION IN THOSE CASES WHERE THE DISTRICT COURT
PROPERLY FINDS THAT THE STATE PROCEEDING IS MOTIVATED BY A DESIRE TO
HARASS OR IS CONDUCTED IN BAD FAITH, OR WHERE THE CHALLENGED STATUTE IS
"'FLAGRANTLY AND PATENTLY VIOLATIVE OF EXPRESS CONSTITUTIONAL
PROHIBITIONS IN EVERY CLAUSE, SENTENCE AND PARAGRAPH, AND IN WHATEVER
MANNER AND AGAINST WHOMEVER AN EFFORT MIGHT BE MADE TO APPLY IT.'"  AS
WE HAVE NOTED, THE DISTRICT COURT IN THIS CASE DID NOT RULE ON THE
YOUNGER ISSUE, AND THUS APPARENTLY HAS NOT CONSIDERED WHETHER ITS
INTERVENTION WAS JUSTIFIED BY ONE OF THESE NARROW EXCEPTIONS.  EVEN IF
THE DISTRICT COURT'S OPINION CAN BE INTERPRETED AS A SUB SILENTIO
DETERMINATION THAT THE CASE FITS WITHIN THE EXCEPTION FOR STATUTES
WHICH ARE "'FLAGRANTLY AND PATENTLY VIOLATIVE OF EXPRESS CONSTITUTINAL
PROHIBITIONS,'" SUCH A CHARACTERIZATION OF THE STATUTE IS NOT POSSIBLE
AFTER THE SUBSEQUENT DECISION OF THE SUPREME COURT OF OHIO IN STATE, EX
REL. EWING V. A MOTION PICTURE FILM ENTITLED " WITHOUT A STICH," 37
OHIO ST. 2D 95, 307 N.E. 2D 911 (1974).  THAT CASE NARROWLY CONSTRUED
THE OHIO NUISANCE STATUTE, WITH A VIEW TO AVOIDING THE CONSTITUTIONAL
DIFFICULITIES WHICH CONCERNED THE DISTRICT COURT.  /23/ 

WE THEREFORE THINK THAT THIS CASE IS APPROPRIATE FOR REMAND SO THAT
THE DISTRICT COURT MAY CONSIDER WHETHER IRREPARABLE INJURY CAN BE SHOWN
IN LIGHT OF " WITHOUT A STITCH," AND IF SO, WHETHER THAT INJURY IS OF
SUCH A NATURE THAT THE DISTRICT COURT MAY ASSUME JURISDICITON UNDER AN
EXCEPTION TO THE POLICY AGAINST FEDERAL JUDICIAL INTERFERENCE WITH
STATE COURT PROCEEDINGS OF THIS KIND.  THE JUDGMENT OF THE DISTRICT
COURT IS VACATED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

IT IS SO ORDERED. 

/1/ OTHER RECENT CASES RAISING ISSUES OF THE APPLICABILITY OF
YOUNGER IN THE NONCRIMINAL CONTEXT CONCLUDE MITCHUM V. FOSTER, 407 U.S.
225 (1972), AND SOSNA V. IOWA, 419 U.S. 393 (1975).  IN MITCHUM, A 42
U.S.C. 1983 ACTION TO ENJOIN A PENDING NUISANCE PROCEEDING WAS REMANDED
FOR FURTHER PROCEEDINGS; THE DISTRICT COURT HAD DENIED RELIEF SOLELY ON
THE BASIS OF THE ANTI-INJUNCITON STATUTE, 28 U.S.C. 2283, SEE N. 15,
INFRA.  OUR OPINION SPECIFIED THAT WE WERE IN NO WAY QUESTIONING OR
QUALIFYING "THE PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM"
CANVASSED IN YOUNGER.  407 U.S., AT 243. 

IN SOSNA WE DIRECTED THE PARTIES TO ADDRESS THE YOUNGER ISSUE, 415
U.S. 911 (1974), REFLECTING OUR CONCERN AS TO WHETHER THE
CONSTITUTIONAL MERITS SHOULD BE REACHED IN LIGHT OF SOSNA'S FAILURE TO
APPEAL THE STATE TRIAL COURT'S ADVERSE RULING THROUGH THE STATE
APPELLATE NETWORK.  BECAUSE BOTH PARTIES URGED THAT WE PROCEED TO THE
MERITS, WE DID NOT REACH THE ISSUE.  SOSNA, 419 U.S., AT 396 - 397, N.
3. 

/2/ SEE MILLER V. CALIFORNIA, 413 U.S. 15, 18 - 19, N. 2 (1973),
WHICH DISCUSSES THE DISTINCTIONBETWEEN "PORNOGRAPHY" AND "OBSCENITY." 

/3/ 3767.01 DEFINITIONS. 

" AS USED IN ALL SECTION OF THE REVISED CODE RELATING TO NUISANCES: 

"(C) ' NUISANCE' MEANS THAT WHICH IS DEFINED AND DECLARED BY
STATUTES TO BE SUCH AND ALSO MEANS ANY PLACE IN OR UPON WHICH LEWDNESS,
ASSIGNATION, OR PROSTITUTION IS CONDUCTED, PERMITTED, CONTINUED, OR
EXISTS, OR ANY PLACE, IN OR UPON WHICH LEWD, INDECENT, LASCIVIOUS, OR
OBSCENE FILMS OR PLATE NEGATIVES, FILM OR PLATE POSITIVES, FILMS
DESIGNED TO BE PROJECTED ON A SCREEN FOR EXHIBITION, FILMS OR GLASS
SLIDES EITHER IN NEGATIVE OR POSITIVE FORM DESIGNED FOR EXHIBITION BY
PROJECTION ON A SCREEN, AR EPHOTOGRAPHED, MANUFACTURED, DEVELOPED,
SCREENED, EXHIBITED, OR OTHERWISE PREPARED OR SHOWN, AND THE PROPOSAL
PROPERTY AND CONTENTS USED IN CONDUCTING AND MAINTAINING ANY SUCH PLACE
FOR ANY SUCH PURPOSE.  THIS CHAPTER SHALL NOT AFFECT ANY NEWSPAPER,
MAGAZINE, OR OTHER PUBLICATION ENTERED AS SECOND CLASS MATTER BY THE
POST-OFFICE DEPARTMENT."     /4/ AS INTERPRETED BY THE OHIO SUPREME
COURT, STATE, EX REL. KEATING V. A MOTION PICTURE FILM ENTITLED "
VIXEN," 27 OHIO ST. 2D 27,, 272 N.E. 2D 137 (1971), THE DETERMINATION
OF OBSCENITY IS TO BE BASED ON THE DEFINITION CONTAINED IN OHIO'S
CRIMINAL STATUTES, OHIO REV. CODE ANN. 2905.34 (SUPP. 1972), NOW
2907.01 (1975).  ON THIS COURT'S REMAND OF KEATING, 413 U.S. 905
(1973), FOLLOWING OUR DECISION IN MILLER V. CALIFORNIA, SUPRA, THE OHIO
SUPREME COURT CONCLUDED THAT THE STATUTE'S DEFINITION COMPORTED WITH
MILLER'S CONSTITUTIONAL STANDARDS.  35 OHIO ST. 215, 301 N.E. 2D 880
(1973). 

/5/ 3767.06 CONTENT OF JUDGMENT OF ORDER. 

" IF THE EXISTENCE OF A NUISANCE IS ADMITTED OR ESTABLISHED IN AN
ACTION AS PROVIDED IN SECTIONS 3767.01 TO 3767.11, INCLUSIVE, OF THE
REVISED CODE, OR IN A CRIMINAL PROCEEDING, AN ORDER OF ABATEMENT SHALL
BE ENTERED AS A PART OF THE JUDGMENT IN THE CASE, WHICH ORDER SHALL
DIRECT THE REMOVAL FROM THE PLACE OF ALL PERSONAL PROPERTY AND CONTENTS
USED IN CONDUCTING THE NUISANCE, AND NOT ALREADY RELEASED UNDER
AUTHORITY OF THE COURT AS PROVIDED IN SECTION 3767.04 OF THE REVISED
CODE, AND SHALL DIRECT THE SALE OF SUCH THEREOF AS BELONG TO THE
DEFENDANTS NOTIFIED OR APPEARING, IN THE MANNER PROVIDED FOR THE SALE
OF CHATTELS UNDER EXECUTION.  SUCH ORDER SHALL ALSO REQUIRE THE RENEWAL
FOR ONE YEAR OF ANY BOND FURNISHED BY THE OWNER OF THE REAL PROPERTY,
AS PROVIDED INS ECTION 3767.04 OF THE REVISED CODE, OR, IF NOT SO
FURNISHED SHALL CONTINUE FOR ONE YEAR ANY CLOSING ORDER ISSUED AT THE
TIME OF GRANTING THE TEMPORARY INJUNCTION, OR, IF NO SUCH CLOSING ORDER
WAS THEN ISSUED, SHALL INCLUDE AN ORDER DIRECTING THE EFFECTUAL CLSOING
OF THE PLACE AGAINST ITS USE FOR ANY PURPOSE, AND KEEPING IT CLOSED FOR
A PERIOD OF ONE YEAR UNLESS SOONER RELEASED.  THE OWNER OF ANY PLACE
CLOSED AND NOT RELEASED UNDER BOND MAY THEN APPEAR AND OBTAIN SUCH
RELEASE IN THE MANNER AND UPON FULFILLING THE REQUIREMENTS PROVIDED IN
THIS SECTION SHALL NOT RELEASE IT FROM ANY JUDGMENT, LIEN, PENALTY, OR
LIABILITY TO WHICH IT MAY BE SUBJECT.  OWNERS OF UNSOLD PERSONAL
PROPERTY AND CONTENTS SO SEIZED MUST APPEAR AND CLAIM THE SAME WITHIN
TEN DAYS AFTER SUCH ORDER OF ABATEMENT IS MADE AND PROVE INNOCENCE, TO
THE SATISFACTION OF THE COURT, OF ANY KNOWLEDGE OF SAID USE THEREOF AND
THAT WITH REASONABLE CARE AND DILIGENCE THEY COULD NOT HAVE KNOWN
THEREOF.  EVERY DEFENDANT IN THE ACTION IS PRESUMED TO HAVE HAD
KNOWLEDGE OF THE GENERAL REPUTATION OF THE PLACE.  IF SUCH INNOCENCE IS
ESTABLISHED, SUCH UNSOLD PERSONAL PROPERTY AND CONTENTS SHALL BE
DELIVERED TO THE OWNER, OTHERWISE IT SHALL BE SOLD AS PROVIDED IN THIS
THE OFFICER SHALL BE ENTITLED TO CHARGE AND RECEIVE THE SAME FEES AS EH
WOULD FOR LEVYING UPON AND SELLING LIKE PROPERTY ON EXECUTION; AND FOR
CLOSING THE PLACE AND KEEPING IT CLOSED, A REASONABLE SUM SHALL BE
ALLOWED BY THE COURT." 

/6/ OHIO REV. CODE ANN. 3767.04 (1971). 

/7/ 3767.06 (1971), SUPRA, N.5. 

/8/ IBID.  THE REFERENCED PORTION OF 3767.04 (1971) PROVIDES:  "
THE OWNER OF ANY REAL OR PERSONAL PROPERTY CLOSED OR RESTRAINED OR TO
BE CLOSED OR RESTRAINED MAY APPEAR BETWEEN THE FILING OF THE PETITION
AND THE HEARING ON THE APPLICATION FOR A PERMANENT INJUNCTION AND, UPON
PAYMENT OF ALL COSTS INCURRED AND UPON TH EFILING OF A BOND BY THE
OWNER OF THE REAL PROPERTY WITH SURETIES TO BE APPROVED BY THE CLERK IN
THE FULL VALUE OF THE PROPERTY TO BE ASCERTAINED BY THE COURT, OR, IN
VACATION, BY THE JUDGE, CONDITIONED THAT SUCH OWNER WILL IMMEDIATLEY
ABATE THE NUISANCE AND PREVENT THE SAME FROM BEING ESTABLISHED OR KEPT
UNTIL THE DECISION OF THE COURT OR JUDGE IS RENDERED ON THE APPLICATION
FOR A PERMANENT INJUNCTION, THEN THE COURT, OR JUDGE IN VACATION, IF
SATISFIED OF THE GOOD FAITH OF THE OWNER OF THE REAL PROPERTY AND OF
INNOCENCE ON THE PART OF ANY OWNER OF THE PERSONALPROPERTY OF ANY
KNOWLEDGE OF THE USE OF SUCH PERSONAL PROPERTY AS A NUCSANCE AND THAT,
WITH REASONABLE CARE AND DILIGENCE, SUCH OWNER COULD NOT HAVE KNOWN
THEREOF, SHALL DELIVER SUCH REAL OR PERSONAL PROPERTY, OR BOTH, TO THE
RESPECTIVE OWNERS THEREOF, AND DISCHARGE OR REFRAIN FROMISSUING AT THE
TIME OF THE HEARING ON THE APPLICATION FOR THE TEMPORARY INJUNCTION ANY
ORDER CLOSING SUCH REAL PROPERTY OR RESTRAINING THE REMOVAL OR
INTERFERENCE WITH SUCH PERSONAL PROPERTY.  THE RELEASE OF ANY REAL OR
PERSONAL PROPERTY, UNDER THIS SECTION, SHALL NOT RELEASE IT FROM ANY
JUDGMENT, LIEN, PENALTY, OR LIBILITY TO WHICH IT MAY BE SUBJECTED." 

/9/ STATE, EX REL. HUFFMAN V. DAKOTA, NO. 72 CIV 0326 "  CT. COM.
PLEAS, ALLEN COUNTY, OHIO, NOV. 30, 1972). 

/10/ BECAUSE THE STATE COURT JUDGMENT WAS PRIMARILY DIRECTED AGAINST
A PROPERTY INTEREST TO WHICH PURSUE HAD SUCCEEDED, THE DISTRICT COURT
CONCLUDED THAT PURSUE HAD STANDING TO CHALLENGE THE NUISANCE STATUTE. 
SIMILARLY, COUNSEL FOR PURSUE CONCEDED AT ORAL ARGUMENT THAT PURSUE
COULD HAVE APPEALED THE JUDGMENT OF THE COURT OF COMMON PLEAS WITHIN
THE OHIO COURT SYSTEM. 

/11/ PENDING THE CONVENING OF THE THREE-JUDGE COURT, A SINGLE JUDGE
OF THE NORTHERN DISTRICT OF OHIO STAYED THE JUDGMENT OF THE COURT OF
COMMON PLEAS, EXCEPT INSOFAR AS THAT JUDGMENT APPLIED TO FILMS WHICH
HAD BEEN DECLARED OBSCENE IN A PRIOR ADVERSARY HEARING.  THE STAY ORDER
WAS ENTERED ON THE DAY THAT THE ACTION WAS FILED, ONE DAY AFTER ENTRY
OF JUDGMENT BY THE COURT OF COMMON PLEAS. 

/12/ NO. C. 72 - 432 (ND OHIO, APR. 20, 1973). 

/13/ SAMUELS V. MACKELL, 401 U.S. 66 (1971); BOYLE V. LANDRY, 401
U.S. 77 (1971); PEREZ V. LEDESMA, 401 U.S. 82 (1971); DYSON V. STEIN,
401 U.S. 200 (1971); BYRNE V. KARALEXIS, 401 U.S. 216 (1971). 

/14/ SEE, E.G., SPIELMAN MOTOR SALES CO. V. DODGE, 295 U.S. 89
(1935); BEAL V. MISSOURI P.R. CO., 312 U.S. 45 (1941); WATSON V. BUCK,
313 U.S. 387 (1941); WILLIAMS V. MILLER, 317 U.S. 599 (1942); DOUGLAS
V. CITY OF JEANNETTE, 319 U.S. 157 (1943). 

/15/ TITLE 2, U.S.C. 2283 PROVIDES:  " A COURT OF THE UNITED STATES
MAY NOT GRANT AN INJUNCTION TO STAY PROCEEDINGS IN A STATE COURT EXCEPT
AS EXPRESSLY AUTHORIZED BY ACT OF CONGRESS, OR WHERE NECESSARY IN AID
OF ITS JURISDICTION, OR TO PROTECT OR EFFECTUATE ITS JUDGMENTS."  WE
HELD IN MITCHUM V. FOSTER, 407 U.S. 225 (1972), THAT 42 U.S.C. 1983
CONTAINED AN EXPRESSLY AUTHORIZED CONGRESSIONAL EXCEPTION.  THUS, WHILE
THE STATUTE DOES EXPRESS THE GENERAL CONGRESSIONAL ATTITUDE WHICH WAS
RECOGNIZED IN YOUNGER, IT DOES NOT CONTROL THE CASE BEFORE US TODAY. 

/16/ WHILE THESE STANDARDS GOVERNING FEDERAL INTERFERENCE WERE
LARGELY SHAPED IN THE CONTEXT OF PRAYERS FOR FEDERAL INJUNCTIONS
AGAINST STATE PROCEEDINGS, IT IS CLEAR THAT WITH RESPECT TO PENDING
PROSECUTIONS THE SAME STANDARDS APPLY TO INTERFERENCE IN THE FORM OF
DECLARATORY RELIEF.  SEE SAMUELS V. MACKELL, 401 U.S. 66 (1971). 

/17/ THE RELATION OF A PROCEEDING WHICH IS NOMINALLY "CIVIL" TO A
STATE'S CRIMINAL LAWS HAS BEEN RELIED ON BY LOWER FEDERAL COURTS IN
RESOLVING YOUNGER PROBLEMS.  SEE MTM, INC. V. BAXLEY, 365 F. SUPP. 1182
(ND ALA. 1973), PROBABLE JURISDICITON NOTED, 415 U.S. 975 (1974);
PALAIO V. MC AULIFFE, 466 F. 2D 1230 (CA5 1972). 

/18/ WE IN NO WAY INTEND TO SUGGEST THAT THERE IS A RIGHT OF ACCESS
TO A FEDERAL FORUM FOR THE DISPOSITION OF ALL FEDERAL ISSUES, OR THAT
THE NORMAL RULES OF RES JUDICATA AND JUDICIAL ESTOPPEL DO NOT OPERATE
TO BAR RELITIGATION IN ACTIONS UNDER 42 U.S.C. 1983 OF FEDERAL ISSUES
ARISING IN STATE COURT PROCEEDINGS.  CF. PRESIER V. RODRIGUEZ, 411 U.S.
475, 497 (1973).  OUR ASSUMPTION IS MADE SOLELY AS A MEANS OF DISPOSING
OF APPELLEE'S CONTENTIONS WITHOUT CONFRONTING ISSUES WHICH HAVE NOT
BEEN BRIEFED OR ARGUED IN THIS CASE. 

/19/ IT WOULD ORDINARILY BE DIFFICULT TO CONSIDER THIS PROBLEM, THAT
OF THE DURATION OF YOUNGER'S RESTRICTIONS AFTER ENTRY OF A STATE TRIAL
COURT JUDGMENT, WITHOUT ALSO CONSIDERING THE RES JUDICATA IMPLICATIONS
OF SUCH A JUDGMENT.  HOWEVER, APPELLANTS DID NOT PLEAD RES JUDICATA IN
THE DISTRICT COURT, AND IT IS THEREFORE NOT AVAILABLE TO THEM HERE. 
SEE FED. RULE CIV. PROC. 8 (C); SOSNA V. IOWA, 419 U.S., AT 396 - 397,
N. 3. 

/20/ THAT A STATE JUDICIAL SYSTEM MAY RETAIN UNDISTURBED
JURISDICITON DESPITE POSSIBLY ERRONEOUS TRIAL COURT DISPOSITION OF
CONSTITUTIONAL ISSUES WAS RECOGNIZED IN DOMBROWSKI V. PFISTER, 380 U.S.
479, 484 - 485 (1965), WHERE WE STATED:  "(THE MERE POSSIBILITY OF
ERRONEOUS INITIAL APPLICATION OF CONSTITUTIONAL STANDARDS WILL USUALLY
NOT AMOUNT TO THE IRREPARABLE INJURY NECESSARY TO JUSTIFY A DISRUPTION
OF ORDERLY STATE PROCEEDINGS." 

/21/ BY REQUIRING EXHAUSTION OF STATE APPELLATE REMEDIES FOR THE
PURPOSES OF APPLYING YOUNGER, WE IN NO WAY UNDERMINE MONROE V. PAPE,
365 U.S. 167 (1961).  THERE WE HELD THAT ONE SEEKING REDRESS UNDER 42
U.S.C. 1983 FOR A DEPRIVATION OF FEDERAL RIGHTS NEED NOT FIRST INITIATE
STATE PROCEEDINGS BASED ON RELATED STATE CAUSES OF ACTION.  365 U.S.,
AT 183.  MONROE V. PAPE HAD NOTHING TO DO WITH THE PROBLEM PRESENTLY
BEFORE US, THAT OF THE DEFERENCE TO BE ACCORDED STATE PROCEEDINGS WHICH
HAVE ALREADY BEEN INITIATED AND WHICH AFFORD A COMPETENT TRIBUNAL FOR
THE RESOLUTION OF FEDERAL ISSUES. 

OUR EXHAUSTION REQUIREMENT IS LIKEWISE NOT INCONSISTENT WITH SUCH
CASES AS CITY BANK FARMERS TRUST CO. V. SCHANDER, 291 U.S. 24 (1934),
AND BACON V. RUTLAND R. CO., 232 U.S. 134 (1914), WHICH EXPRESSED THE
DOCTRINE THAT A FEDERAL EQUITY PLAINTIFF CHALLENGING STATE
ADMINISTRATIVE ACTION NEED NOT HAVE EXHAUSTED HIS STATE JUDICIAL
REMEDIES.  THOSE CASES DID NOT DEAL WITH SITUATIONS IN WHICH THE STATE
JUDICIAL PROCESS HAD BEEN INITIATED. 

/22/ WHILE APPELLEE HAD THE OPTION TO APPEAL IN STATE COURTS AT THE
TIME IT FILED THIS ACTION, WE DO NOT KNOW FOR CERTAIN WHETHER SUCH
REMEDY REMAINED AVAILABLE AT THE TIME THE DISTRICT COURT ISSUED ITS
PERMANENT INJUNCTION, OR WHETHER IT REMAINS AVAILABLE NOW.  IN ANY
EVENT, APPELLEE MAY NOT AVOID THE STANDARDS OF YOUNGER BY SIMPLY
FAILING TO COMPLY WITH THE PROCEDURES OF PERFECTING ITS APPEAL WITHIN
THE OHIO JUDICIAL SYSTEM. 

/23/ IN " WITHOUT A STICH" IT WAS DECIDED THAT THE CLOSURE
PROVISIONS OF OHIO REV. CODE ANN. 3767.06 (1971) WERE APPLICABLE EVEN
IF A THEATER HAS SHOWN ONLY ONE FILM WHICH WAS ADJUDGED TO BE OBSCENE. 
HOWEVER, THE OHIO SUPREME COURT WAS CONCERNED WITH THE CONSTITUTIONAL
IMPLICATIONS OF PRIOR RESTRAINT OF FILMS WHICH HAD NOT BEEN SO
ADJUDGED.  IN NARROWING THE STATUTE THE COURT NOTED TAHT 3767.04
SPECIFIES CONDITIONS UNDER WHIHC A RELEASE MAY BE OBTAINED FROM THE
CLOSURE ORDER:  THE PROPERTY OWNER MUST APPEAR IN COURT, PAY THE COST
INCURRED IN THE ACTION, FILE A BOND IN THE FULL VALUE OF THE PROPERTY,
AND DEMONSTRATE TO THE COURT THAT HE WILL PREVENT THE NUISANCE FROM
BEING RE-ESTABLISHED.  THE COURT THEN MADE THIS CRITICAL CLARFICATION:
" THE NUICANCE IS THE EXHIBITION OF THE PARTICULAR FILM DELCARED
OBSCENE.  THE RELEASE PROVISIONS DO NOT, AS APPELLANTS CONTEND, REQUIRE
THE OWNER TO SHOW THAT NO FILM TO BE EXHIBITED DURING THE ONE-YEAR
PERIOD WILL BE OBSCENE.  SUCH A REQUIREMENT WOULD NOT ONLY BE
IMPOSSIBLE, AS A PRACTICAL MATTER, BUT ALSO WOULD BE AN
UNCONSTITUTIONAL PRIOR RESTRAINT ..."  37 OHIO ST. 2D 95, 105, 307 N.E.
2D 911, 918 (1974). 

MR. JUSTICE BRENNAN, WHITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN DISSENTING. 

I DISSENT.  THE TREATMENT OF THE STATE CIVIL PROCEEDING AS ONE "IN
AID OF AND CLOSELY RELATED TO CRIMINAL STATUTES" IS OBVIOUSLY ONLY THE
FIRST STEP TOWARD EXTENDING TO STATE CIVIL PROCEEDINGS GENERALLY THE
HOLDING OF YOUNGER V. HARRIS, 401 U.S. 37 (1971), THAT FEDERAL COURTS
SHOULD NOT INTERFERE WITH PENDING STATE CRIMINAL PROCEEDINGS EXCEPT
UNDER EXTRAORDINARY CIRCUMSTANCES.  /1/ SIMILARLY, TODAY'S HOLDING THAT
THE PLAINTIFF IN AN ACTION UNDER 42 U.S.C. 1983 MAY NOT MAINTAIN IT
WITHOUT FIRST EXHAUSTING STATE APPELLATE PROCEDURES FOR REVIEW OF AN
ADVERSE STATE TRIAL COURT DECISION IS BUT AN OBVIOUS FIRST STEP TOWARD
DISCARD OF THERETOFORE SETTLED LAW THAT SUCH ACTIONS MAY BE MAINTAINED
WITHOUT FIRST EXHAUSTING STATE JUDICIAL REMEDIES. 

YOUNGER V. HARRIS WAS BASICALLY AN APPLICAITON, IN THE CONTEXT OF
THE RELATION OF FEDERAL COURTS TO PENDING STATE CRIMINAL PROSECUTIONS,
OF THE "THE BASIC DOCTRINE OF EQUITY JURISPRUDENCE THAT COURT OF EQUITY
... PARTICULARLY SHOULD NOT ACT TO RESTRAIN A CRIMINAL PROSECUTION." 
401 U.S., AT 43.  THE MAXIM THAT EQUITY WILL NOT ENJOIN A CRIMINAL
PROSECUTION SUMMARIZES CENTRIES OF WEIGHTY EXPERIENCE IN ANGLO-AMERICAN
LAW."  STEFANELLI V. MANARD, 342 U.S. 117, 120 (1951).  BUT YOUNGER V.
HARRIS WAS ALSO A DECISON ENFORCING "THE NATIONAL POLICY FORBIDDING
FEDERAL COURTS TO STAY OR ENJOIN PENDING STATE COURT "CRIMINAL"
PROCEEDINGS EXCEPT UNDER SPECIAL CIRCUMSTANCES."  401 U.S., AT 41.  SEE
ALSO ID., AT 44.  FOR IN DECISION LONG ANTEDATING YOUNGER V. HARRIS,
THE COURT HAD INVESTED THE BASIC MAXIM WITH PARTICULAR SIGNIFICANCE AS
A RESTRAINT UPON FEDERAL EQUITABLE INTERFERENCE WITH PENDING STATE
PROSECUTIONS.  NOT A SHOWING OF IRREPARABLE INJURY ALONE BUT OF
IRREPARABLE INJURY "BOTH GREAT AND IMMEDIATE" IS REQUIRED TO JUSTIFY
FEDERAL INJUNCTIVE RELIEF AGAINST A PENDING STATE PROSECUTION.  FENNER
V. BOYKIN, 271 U.S. 240, 243 (1926); SPIELMAN MOTOR SALES CO. V. DODGE,
295 U.S. 89, 95 (1935).  INJURY MERELY "INCIDENTAL TO EVERY CRIMINAL
PROCEEDING BROUGTH LAWFULLY AND IN GOOD FAITH" IS NOT IRREPARABLE
INJURY THAT JUSTIFIES AN INJUNCITON.  DOUGLAS V. CITY OF JEANNETTE, 319
U.S. 157, 164 (1943).  SEE ALSO DOMBROWSKI V. PFISTER, 380 U.S. 479,
485 (1965).  THE LINE OF DECISION CULMINATING IN YOUNGER V. HARRIS
REFLECTS THIS COURT'S LONGSTANDING RECOGNITION THAT EQUITABLE
INTERFERENCE BY FEDERAL COURTS WITH PENDING STATE PROSECUTION SI
INCOMPATIBLE IN OUR FEDERAL SYSTEM WITH THE PARAMOUNT ROLE OF THE
STATES IN THE DEFINITION OF CRIMES AND THE ENFORCEMENT OF CRIMINAL
LAWS.  FEDERAL COURT NONINTERFERENCE WITH STATE PROSECUTION OF CRIMES
PROTECTS AGAINST "THE MOST SENSITIVE SOURCE OF FRICTION BETWEEN STATES
AND NATION."  STEFANELLI V. MINARD, SUPRA, AT 120.     THE TRADITION,
HOWEVER, HAS BEEN QUITE THE OPPOSITE AS RESPECTS FEDERAL INJUNCTIVE
INTERFERENCE WITH PENIDING STATE CIVIL PROCEEDINGS.  EVEN THOUGH
LEGISLATION AS FAR BACK AS 1793 HAS PROVIDED IN "SEEMINGLY
UNCOMPROMISING LANGUAGE," MITCHUM V. FOSTER, 407 U.S. 225, 233 (1972),
THAT A FEDERAL COURT "MAY NOT GRANT AN INJUNCTION TO STAY PROCEEDINGS
IN A STATE COURT" WITH SPECIFIED EXCEPTIONS, SEE 2, U.S.C. 2283, THE
COURT HAS CONSISTENTLY ENGRAFTED EXCEPTIONS UPON THE PROHIBITION. 
MANY, IF NOT MOST, OF THOSE EXCEPTIONS HAVE BEEN ENGRAFTED UNDER THE
EUPHEMISM "IMPLIED."  THE STORY APPEARS IN MITCHUM V. FOSTER, SUPRA, AT
233 - 236.  INDEED, WHEN CONGRESS BECAME CONCERNED THAT THE COURT'S
1941 DECISION IN TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118,
FORECAST THE POSSIBILITY THAT THE 1793 ACT MIGHT BE ENFORCED ACCORDING
TO ITS LITERAL TERMS, CONGRESS AMENDED THE ACT IN 1948 "TO RESTORE 'THE
BASIC LAW AS GENERALLY UNDERSTOOD AND INTEROROTED PRIOR TO THE TOUCEY
DECISION.'"  MITCHUM V. FOSTER, SUPRA, AT 236. 

THUS TODAY'S EXTENSION OF YOUNGER V. HARRIS TURNS THE CLOCK BACK AND
PRETENDS ONCE AGAIN THE RESUSCITATION OF THE LITERAL COMMAND OF THE
1793 ANTI-INJUNCTION ACT--THAT THE STATE COURTS SHOULD BE FREE FROM
INTERFERENCE BY FEDERAL INJUNCTION EVEN IN CIVIL CASES.  THIS NOT ONLY
WOULD OVERRULE SOME 18 DECADES OF THIS COURT'S JURISPRUDENCE BY WOULD
HEEDLESSLY FLOUNT CONGRESS' EVIDENT PURPOSE IN ENACTING THE 1948
AMENDMENT TO ACQUIESCE IN THAT JURISPRUDENCE. 

THE EXTENSION ALSO THREATENS SERIOUS PREJUDICE TO THE POTENTIAL
FEDERAL COURT PLAINTIFF NOT PRESENT WHEN THE PENDING STATE PROCEEDING
IS A CRIMINAL PROSECUTION.  THAT PROSECUTION DOES NOT COME INTO
EXISTENCE UNTIL COMPLETION OF STEPS DESIGNED TO SAFEGUARD HIM AGAINST
SPURIOUS PROSECUTION--ARREST, CHARGE, INFORMATION, OR INDICTMENT.  IN
CONTRAST, THE CIVIL PROCEEDING, AS IN THIS CASE, COMES INTO EXISTENCE
MERELY UPON THE FILING OF A COMPLAINT, WHETHER OR NOT WELL FOUNDED.  TO
DENY BY FIAT OF THIS COURT THE POTENTIAL FEDERAL PLAINTIFF A FEDERAL
FORUM IN THAT CIRCUMSTANCES IS OBVIOUSLY TO ARM HIS ADVERSARY (HERE THE
PUBLIC AUTHORITIES) WITH AN EASILY WIELDED WEAPON TO STRIP HIM OF A
FORUM AND A REMEDY THAT FEDERAL STATUTES WERE ENACTED TO ASSURE HIM. 
THE COURT DOES NOT ESCAPE THIS CONSEQUENCE BY CHARACTERIZING THE STATE
CIVIL PROCEEDING INVOLVED HERE AS "IN AID OF AND CLOSELY RELATED TO
CRIMINAL STATUES."  THE NUISANCE ACTION WAS BROUGHT INTO BEING 

THE MERE FILING OF THE COMPLAINT STATE COURT, AND THE UNTOWARD
CONSEQUENCES FOR THE FEDERAL PLAINTIFF WERE THEREBY SET IN TRAIN
WITHOUT REGARD TO THE CONNECTION, IF ANY, OF THE PROCEEDING TO THE
STATE'S CRIMINAL LAWS. 

EVEN IF THE EXTENSION OF YOUNGER V. HARRIS TO PENDING STATE CIVIL
PROCEEDINGS CAN BE APPROPRIATE IN ANY CASE, AND I DO NOT THINK IT CAN
BE, /2/ IT IS PLAINLY IMPROPER IN THE CASE OF AN ACTION BY A FEDERAL
PLAINTIFF, AS IN THIS CASE, GROUNDED UPON 42 U.S.C. 1983.  /3/ THAT
STATUTE SERVES A PARTICULAR CONGRESSIONAL OBJECTIVE LONG RECOGNIZED AND
ENFORCED BY THE COURT.  TODAY'S EXTENSION WILL DEFEAT THAT OBJECTIVE. 
AFTER WAR BETWEEN THE STATES, "NATIONALISM DOMINATED POLITICAL THOUGHT
AND BROUGHT WITH IT CONGRESSIONAL INVESTITURE OF THE FEDERAL JUDICIARY
WITH ENORMOUSLY INCREASED POWERS."  ZWICKLER V. KOOTA, 398 U.S. 241,
246 (1967).  SECTION 1983 WAS ENACTED AT THAT TIME AS 1 OF THE CIVIL
RIGHTS ACT OF 1871, 17 STAT. 13.  389 U.S., AT 247.  THAT ACT, AND THE
JUDICIARY ACT OF 1875, WHICH GRANTED THE FEDERAL COURTS GENERAL FEDERAL
QUESTION JURISDICTION, COMPLETELY ALTERED CONGRESS' PRE-CIVIL WAR
POLICY OF RELYING ON STATE COURTS TO VINDICATE RIGHTS ARISING UNDER THE
CONSTITUTION AND FEDERAL LAWS.  389 U.S., AT 245 - 246.  THESE STATUTES
CONSTITUTED THE LOWER FEDERAL COURTS "'THE PRIMARY AND POWERFUL
RELIANCES FOR VINDICATING EVERY RIGHT GIVEN BY THE CONSTITUTION, THE
LOWER FEDERAL COURTS "'THE PRIMARY AND POWERFUL RELIANCES FOR
VINDICATING EVERY RIGHT GIVEN BY THE CONSTITUTION, THE LAWS, AND
TREATIES OF THE UNITED STATES.'"  STEFFEL V. THOMPSON, 415 U.S. 452,
464 (1974).  THE FACT, STANDING ALONE, THAT STATE COURTS ALSO MUST
PROTECT FEDERAL RIGHTS CAN NEVER JUSTIFY A REFUSAL OF FEDERAL COURTS TO
EXERCISE THAT JURISDICITON.  ZWICKLER V. KOOTA, SUPRA, AT 248.  THIS IS
TRUE NOTWITHSTANDING THE POSSIBILITY OF REVIEW BY THIS COURT OF STATE
DECISIONS FOR, "EVEN WHEN AVAILABLE BY APPEAL RATHER THAN ONLY BY
DISCRETIONARY WRIT OF CERTIORARI, "THAT POSSIBILITY) IS AN INADEQUATE
SUBSTITUTE FOR THE INITIAL DISTRICT COURT DETERMINATION ... TO WHICH
THE LITIGANT IS ENTITLED IN THE FEDERAL COURTS."  ENGLAND V. LOUISIANA
STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411, 416 (1964). 

CONSISTENTLY WITH THIS CONGRESSIONAL OBJECTIVE OF THE 1871 AND 1875
ACTS WE HELD IN MONROE V. PAPE, 365 U.S. 167, 183 (1961), THAT A
FEDERAL PLAINTIFF SUING UNDER 1983 NEED NOT EXHAUST STATE
ADMINISTRATIVE OR JUDICIAL REMEDIES BEFORE FILING HIS ACTION UNDER 1983
IN FEDERAL DISTRICT COURT.  THE FEDERAL REMEDY IS SUPPLEMENTARY TO THE
STATE REMEDY, AND THE LATTER NEED NOT BE FIRST SOUGHT AND REFUSED
BEFORE THE FEDERAL ONE IS INVOKED."  IBID.  THE EXTENSION TODAY OF
YOUNGER V. HARRIS TO REQUIRE EXHAUSTION IN AN ACTION UNDER 1983
DRASTICALLY UNDERCUTS MONROE V. PAPE AND ITS NUMEROUS PROGENY--THE MERE
FILING OF A COMPLAINT AGAINST A POTENTIAL 1983 LITIGANT FORCES HIM TO
EXHAUST STATE REMEDIES. 

MITCHUM V. FOSTER, SUPRA, HOLDING THAT ACTIONS UNDER 1983 ARE
EXCEPTED FROM THE OPERATION OF THE FEDERAL ANTI-INJUNCTION STATUTE, 28
U.S.C. 2283, IS ALSO UNDERCUT BY TODAY'S EXTENSION OF YOUNGER.  MITCHUM
CANVASSED THE HISTORY OF 1983 AND CONCLUDED THAT IT EXTENDED "FEDERAL
POWER IN AN ATTEMPT TO REMEDY THE STATE COURTS' FAILURE TO SECURE
FEDERAL RIGHTS."  407 U.S., AT 241.  MITCHUM PROMPTED THE COMMENT THAT
IF YOUNGER V. HARRIS WERE EXTENDED TO CIVIL CASES, "MUCH OF THE
RIGIDITY OF SECTION 2283 WOULD BE REINTRODUCED, THE SIGNIFICANCE OF
MITCHUM FOR THOSE SEEKING RELIEF FROM STATE CIVIL PROCEEDINGS WOULD
LARGELY BE DESTROYED, AND THE RECOGNITION OF SECTION 1983 AS AN
EXCEPTION TO THE ANTI-INJUNCTION STATUTE WOULD HAVE BEEN A PYRRHIC
VICTORY."  /4/ TODAY'S DECISION FULFILLS THAT GLOOMY PROPHECY.  I
THEREFORE DISSENT FROM THE REMAND AND WOULD REACH THE MERITS. 

/1/ THE COURT REACHES THE YOUNGER ISSUE ALTHOUGH APPELLANTS DID NOT
PLEAD YOUNGER IN THE DISTRICT COURT.  YET THE COURT IMPLIES THAT
YOUNGER IS NOT A JURISDICTIONAL MATTER, SINCE WE ALLOWED THE PARTIES TO
WAIVE IT IN SOSNA V. IOWA, 419 U.S. 393 (1975).  ANTE, AT 595 N. 1.  IN
THAT CIRCUMSTANCE I ADDRESS THE YOUNGER ISSUE SOLELY TO RESPOND TO THE
COURT'S TREATMENT OF IT. 

/2/ ABSENTION WHERE AUTHORITATIVE RESOLUTION BY STATE COURTS OF
AMBIGUITIES IN A STATE STATUTE IS SUFFICIENTLY LIKELY TO AVOID OR
SIGNIFICANTLY MODIFY FEDERAL QUESTIONS RAISED BY THE STATUTE IS ANOTHER
MATTER.  ABSTENTION IS JUSTIFIED IN SUCH CASES PRIMARILY BY THE POLICY
OF AVOIDANCE OF PREMATURE CONSTITUTIONAL ADJUDICATION.  THE FEDERAL
PLAINTIFF IS THEREFORE NOT DISMISSED FROM FEDERAL COURT AS HE IS IN
YOUNGER CASES.  ON THE OCNTRARY, H MAY RESERVE HIS FEDERAL QUESTIONS
FOR DECISION BY THE FEDERAL DISTRICT COURT AND NOT SUBMIT THEM TO THE
STATE COURTS.  ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS,
375 U.S. 411 (1964).  ACCORDINGLY, RETENTION BY THE FEDERAL COURT OF
JURISDICITON OF THE FEDERAL COMPLAINT PENDING STATE COURT DECISION, NOT
DISMISSAL OF THE COMPLAINT, IS THE CORRECT PRACTICE.  LAKE CARRIERS'
ASSN. V. MAC MULLAN, 406 U.S. 498, 512 - 513 (1972). 

/3/ TITLE 42 U.S.C. 1983 PROVIDES: 

" EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICITON THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACITON AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS." 

/4/ NOTE, THE SUPREME COURT, 1971 TERM, 86 HARV. L. REV. 53 217 -
218 ( 972). 

MR. JUSTICE DOUGLAS, WHILE JOINING IN THE OPINION OF MR. JUSTICE
BRENNAN, WISHES TO MAKE CLEAR THAT HE ADHERES TO THE VIEW HE EXPRESSED
IN YOUNGER V. HARRIS, 401 U.S. 37, 58 - 65 (1971) (DISSENTING OPINION),
THAT FEDERAL ABSTENTION FROM INTERFERENCE WITH STATE CRIMINAL
PROSECUTIONS IS INCONSISTENT WITH DEMANDS OF OUR FEDERALISM WHERE
IMPORTANT AND OVERRRIDING CIVIL RIGHTS (SUCH AS THOSE INVOLVED IN THE
FIRST AMENDMENT) ARE ABOUT TO BE SCARFICED. 

JAMES J. CLANCY ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WERE LAWRENCE S. HUFFMAN PRO SE, RICHARD M. BERTSCH, AND ALBERT
S. JOHNSTON III. 

GILBERT H. DEITCH ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS ROBERT EUGENE SMITH. 

BARBARA SCOTT AND JAMES BOURAS FILED A BRIEF FOR THE MOTION PICTURE
ASSOCIATION OF AMERICA, INC., AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :












REID V. INS, 420 U.S. 619 


       REID ET UX. V. IMMIGRATION AND NATURALIZATION SERVICE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 73 - 1541.  ARGUED JANUARY 20, 1975--DECIDED MARCH 18,

1975; AFFIRMED. 


    THE IMMIGRATION AND NATURALIZATION SERVICE, RELYING ON 241

  (A)(2) OF THE IMMIGRATION AND NATIONALITY ACT, INSTITUTED

  DEPORTATION PROCEEDINGS AGAINST PETITIONERS, HUSBAND AND WIFE WHO

  HAD ENTERED THIS COUNTRY AFTER FALSELY REPRESENTING THEMSELVES TO

  THE UNITED STATES CITIZENS, AND THEREAFTER HAD TWO CHILDREN WHO

  WERE BORN IN THIS COUNTRY.  SECTION 241 (A), INTER ALIA,

  SPECIFIES THAT AN ALIEN SHALL BE DEPORTED WHO (1) AT THE TIME OF

  ENTRY WAS WITHIN A CLASS OF ALIENS EXCLUDABLE BY THE LAW EXISTING

  AT THE TIME OF SUCH ENTRY, OR (2) ENTERED THE UNITED STATES ON

  THE GROUND THAT 241 (F) STATES:  " THE PROVISIONS OF THIS SECTION

  RELATING TO THE DEPORTATION OF ALIENS WITHIN THE UNITED STATES ON

  THE GROUND THAT THEY WERE EXCLUDABLE AT THE TIME OF ENTRY AS

  ALIENS WHO HAVE SOUGHT OT PROCURE, OR HAVE PROCURED VISAS OR

  OTHER DOCUMENTATION, OR ENTRY INTO THE UNITED STATES BY FRAUD OR

  MISREPRESENTATION SHALL NOT APPLY TO AN LIEN OTHERWISE ADMISSIBLE

  AT THE TIME OF ENTRY WHO IS THE SPOUSE, PARENT, OR A CHILD OF A

UNITED STATES CITIZEN OR OF AN ALIEN LAWFULLY ADMITTED FOR

PERMANENT RESIDENCE."  PETITIONERS WERE FOUND DEPORTABLE, AND ON

  PETITION FOR REVIEW THE COURT OF APPEALS AFFIRMED, REJECTING

  PETITIONERS' CONTENTION THAT THEY WERE SAVED BY 241 (F).  HELD:

  PETITIONERS WERE DEPORTABLE UNDER 241 (A)(2) OF THE ACT, WHICH

  ESTABLISHES AS A SEPARATE GROUND FOR DEPORTATION, QUITE

  INDEPENDNTLY OF WHETHER THE ALIEN WAS EXCLUDABLE AT THE TIME OF

  HIS ARRIVAL, THE FAILURE OF AN ALIEN TO PRESENT HIMSELF FOR

  INSPECTION AT THE TIME HE MADE HIS ENTRY.  ALIENS LIKE

  PETITIONERS WHO ACCOMPLISH ENTRY INTO THIS COUNTRY BY MAKING

  WILLFULLY FALSE REPRESENTATION OF UNITED STATES CITIZENSHIP ARE

  NOT ONLY EXCLUDABLE UNDER 212 (A)(19) BUT HAVE ALSO SO

  SIGNIFICANTLY FRUSTRATED THE PROCESS FOR INSPECTING IMCOMING

  ALIENS THAT THEY ARE ALSO DEPORTABLE AS PERSONS WHO HAVE "ENTERED

  THE UNITED STATES WITHOUT INSPECTION."  INS V. ERRICO, 3385 U.S.

  214, DISTINGUISHED.  PP. 622 - 631. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED. 

  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, J.,

  JOINED, POST, P. 631.  DOUGLAS, J., TOOK NO PART IN THE

  CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ROBERT AND NADIA REID, HUSBAND AND WIFE, ARE CITIZENS OF
BRITISH HONDURAS.  ROBERT REID ENTERED THE UNITED STATES AT CHULA
VISTA, CLAIFORNIA, IN NOVEMBER 1968, FALSELY REPRESENTING HIMSELF TO BE
A CITIZEN OF THE UNITED STATES.  NADIA REID, EMPLOYING THE SAME
TECHNIQUE, ENTERED AT THE CHULA VISTA PORT OF ENTRY TOW MONTHS LATER. 
PETITIONERS HAVE TWO CHILDREN WHO WERE BORN IN THE UNITED STATES SINCE
THEIR ENTRY. 

IN NOVEMBER 1971, THE IMMIGRATION AND NATURALIZATION SERVICE (INS)
BEGAN DEPORTATION PROCEEDINGS AGAINST PETITIONERS, WHICH WERE RESOLVED
ADVERSELY TO THEM FIRST BY A SPECIAL INQUIRY OFFICER AND THEN BY THE
BOARD OF IMMIGRATION APPEALS.  ON PETITION FOR REVIEW, THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BY A DIVIDED VOTE
AFFIRMED THE FINDING OF DEPORTABILITY.  WE GRANTED CERTIORARI TO
RESOLVE THE CONFLICT BETWEEN THIS HOLDING AND THE CONTRARY CONCLUSION
OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN LEE FOOK CHUEY V. INS,
439 F. 2D 244 (1970).  /1/  419 U.S. 823 (1974). 

BECAUSE OF THE COMPLEXITY OF CONGRESSIONAL ENACTMENTS RELATING TO
IMMIGRATION, SOME UNDERSTANDING OF THE STRUCTURE OF THESE LAWS IS
REQUIRED BEFORE EVALUATING THE LEGAL CONTENTIONS OF PETITIONERS.  THE
MC CARRAN-WALTER ACT, ENACTED BY CONGRESS IN 1952, 66 STAT. 163, AS
AMNEDED, 8 U.S.C. 1101 ET SEQ., ALTHOUGH FREQUENTLY AMENDED SINCE THAT
DATE, REMAINS THE BASIC FORMAT OF THE IMMIGRATION LAWS.  " ALTHOUGH THE
MC CARRAN-WALTER ACT HAS BEEN REPEATEDLY AMENDED, IT STIL IS THE BASIC
STATUTE DEALING WITH IMMRGRATION AND NATIONALITY.  THE AMENDMENTS HAVE
BEEN FITTED INTO THE STRUCTURE OF THE PARENT STATUTE AND MOST OF THE
ORIGINAL ENACTMENT REMAINS UNDISTURBED."  1 C. GORDON & H. ROSENFIELD,
IMMIGRATION LAW AND PROCEDURE 1 - 13 TO 1 - 14 (REV. ED. 1975). 

GROUNDS FOR EXCLUSION OF ALIENS SEEKING ADMISSION TO THIS COUNTRY. 
DEPORTATION OF ALIENS ALREADY IN THIS COUNTRY.  SECTION 241 (A)
SPECIFIES 18 DIFFERENT BASES FOR DEPORTATION, AMONG WHICH ONLY THE
FIRST TWO NEED DIRECTLY CONCERN US: 

     " ANY ALIEN IN THE UNITED STATES ... SHALL, UPON THE ORDER OF

  THE ATTORNEY GENERAL, BE DEPORTED WHO--, 

     "(1) AT THE TIME OF ENTRY WAS WITHIN ONE OR MORE OF THE
LCASSES

  IF ALIENS EXCLUDABLE BY THE LAW EXISTING AT THE TIME OF SUCH

  ENTRY; 

     "(2) ENTERED THE UNITED STATES WITHOUT INSPECTION OR AT ANY

  TIME OR PLACE OTHER THAN AS DESIGNATED BY THE ATTORNEY GENERAL OR

  IS IN THE UNITED STATES IN VIOLATION OF THIS CHAPTER OR IN

  VIOLATION OF ANY OTHER LAW OF THE UNITED STATES...." 

THE INS SEEKS TO DEPORT PETITIONERS UNDER THE PROVISIONS OF 241
(A)(2), ASSERTING THAT THEY ENTERED THE UNITED STATES WITHOUT
INSPECTION.  /2/ PETITIONERS DISPUTE NONE OF THE FACTUAL PREDICATES
UPON WHICH THE INS BASES ITS CLAIM, BUT INSTEAD ARGUE THAT THEIR CASE
IS SAVED BY THE PROVISIONS OF 241 (F), WHICH PROVIDES IN PERTINENT PART
AS FOLLWOS: 

     " THE PROVISIONS OF THIS SECTION RELATING TO THE DEPORTATION
OF

  ALIENS WITHIN THE UNITED STATES ON THE GROUND THAT THEY WERE

  EXCLUDABLE AT THE TIME OF ENTRY AS ALIENS WHO HAVE SOUGHT OT

 PROCURE, OR HAVE PORCURED VISAS OR OTHER DOCUMENTATION, OR ENTRY

  INTO THE UNITED STATES BY FRAUD OR MISREPRESENTATION SHALL NOT

  APPLY TO AN ALIEN OTHERWISE ADMISSIBLE AT THE TIME OF ENTRY WHO

  IS THE SPOUSE, PARENT, OR A CHILD OF A UNITED STATES CITIZEN OR

  OF AN ALIEN LAWFULLY ADMITTED FOR PERMANENT RESIDENCE."  75

  STATE.  655, 8 U.S.C. 1251 (F).  (EMPHASIS SUPPLIED.) 

PETITIONERS CONTEND THAT THEY ARE ENTITLED TO THE BENEFITS OF 241
(F) "BY VIRTUE OF ITS EXPLICIT LANGUAGE."  THIS CONTENTION IS PLAINLY
WRONG, AND FOR MORE THAN ONE REASON. 

THE LANGUAGE OF 241 (F) TRACKS THE PROVISIONS OF 212 (A)(19), 8
U.S.C. 1182 (A)(19), DEALING WITH ALIENS WHO ARE EXCLUDABLE, AND
PROVIDING IN PERTINENT PART AS FOLLOWS: 

     " EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER, THE FOLLOWING

  CLASSES OF ALIENS SHALL BE INELIGIBLE TO RECEIVE VISAS AND SHALL

  BE EXCLUDED FROM ADMISSION INTO THE UNITED STATES: 

     "(19) ANY ALIEN WHO SEEKS TO PROCURE, OR HAS SOUGHT TO
PROCURE,

  OR HAS PROCURED A VISA OR OTHER DOCUMENTATION, OR SEEKS TO ENTER

  THE UNITED STATES, BY FRAUD, OR BY WILLFULLY MISREPRESENTING A

  MATERIAL FACT...."  (EMPHASIS SUPPLIED.) 

THUS THE CEXPLICIT LANGUAGE" OF 241 (F), UPON WHICH PETITIONERS
RELY, WAIVES DEPORTATION FOR ALIENS WHO ARE "EXCLUDABLE AT THE TIME OF
ENTRY" BY REASON OF THE FRAUD SPECIFIED IN 212 (A)(19), AND FOR THAT
REASON DEPORTABLE UNDER THE PROVISIONS OF 241 (A)(1).  IF THE INS WERE
SEEKING TO DEPORT PETITIONERS ON THIS GROUND, THEY WOULD BE ENTITLED TO
HAVE APPLIED TO THEM THE PROVISIONS OF 241 (F) BECAUSE OF THE BIRTH OF
THEIR CHILDREN AFTER ENTRY. 

BUT THE INS IN THIS CASE DOES NOT RELY ON 212 (A)(19), NOR INDEED ON
ANY OF THE OTHER GROUNDS FOR EXCLUDABILITY UNDER 212, WHICH ARE IN TURN
MADE GROUNDS FRO DEPORTATION BY THE LANGUAGE OF 241 (A)(1).  IT IS
INSTEAD RELYING ON THE SEPARATE PROVISION OF 241 (A)(2), WHICH DOES NOT
DEPEND IN ANY WAY UPON THE FACT TAHT AN ALIEN WAS EXCLUDABLE AT THE
TIME OF HIS ENTRY ON ONE OF THE GROUNDS SPECIFIED IN 212 (A).  SECTION
241 (A)(2) ESTABLISHES AS A SEPARATE GROUND FOR DEPORTATION, QUITE
INDEPENDENTLY OF WHETHER THE ALIEN WAS EXCLUDABLE AT THE TIME OF HIS
ARRIVAL, THE FAILURE OF ALIEN TO PRESENT HIMSELF FOR INSPECTION AT THE
TIME THE MADE HIS ENTRY.  IF THIS GROUND IS ESTABLISHED BY THE ADMITTED
FACTS, NOTHING IN THE WAIVER PROVISION OF 241 (F), WHICH BY ITS TERMS
GRANTS RELIEF AGAINST DEPORTATION OF ALIENS "ON THE GROUND THAT THEY
WERE EXCLUDABLE AT THE TIME OF ENTRY," HAS ANY BEARING ON THE CASE. 
CF. COSTANZO V. TILLINGHAST, 287 U.S. 341, 343 (1932). 

THE ISSUE BEFORE US, THEN TURN UPON WHETHER PETITIONERS, WHO
ACCOMPLISHED THEIR ENTRY INTO THE UNITED STATES BY FALSELY ASSERTING
THAT THEY WERE CITIZENS OF THIS COUNTRY, CAN BE HELD TO HAVE "ENTERED
THE UNITED STATES WITHOUT INSPECTION."  OBVIOUSLY NOT EVERY
MISREPRESENTATION ON THE PART OF AN ALIEN MAKING AN ENTRY INTO THE
UNITED STATES CAN BE SAID TO AMOUNT TO AN ENTRY WITHOUT INSPECTION. 
BUT THE COURTS OF APPEALS HAVE HELD THAT AN ALIEN WHO ACCOMPLISHES
ENTRY INTO THIS COUNTRY BY MAKING A WILLFULLY FALSE REPRESENTATION THAT
HE IS A UNITED STATES CITIZEN MAY BE CHARGED WITH ENTRY WITHOUT
INSPECTION.  EX PARTE SAADI, 26 F. 2D 458 (CA9), CERT. DENIED, 278 U.S.
616 (1928); UNITED STATES EX REL.  VOLPE V. SMITH, 62 F. 2D 808 (CA(M
AFF'D ON OTHER GROUNDS, 289 U.S. 422, 424 (1933); BEN HUIE V. INS, 349
F. 2D 1014 (CA9 1965).  WE AGREE WITH THESE HOLDINGS, AND CONCLUDE THAT
AN ALIEN MAKING AN ENTRY INTO THIS COUNTRY WHO FALSELY REPRESENTS
HIMSELF TO BE A CITIZEN WOULD NOT ONLY BE EXCLUDABLE UNDER 212 (A) (19)
IF HE WERE DETECTED AT THE TIME OF HIS ENTRY, BUT HAS ALSO SO
SIGNIFICANTLY FRUSTRATED THE PROCESS FOR INSPECTING INCOMING ALIENS
THAT HE IS ALSO DEPORTABLE AS ONE WHO HAS "ENTERED THE UNITED STATES
WITHOUT INSPECTION."  IN REACHING THIS CONCLUSION WE SUBSCRIBE TO THE
REASONING OF CHIEF JUDGE ALDRICH, WRITING FOR THE COURT OF APPEALS FOR
THE FIRST CIRCUIT IN GOON MEE HEUNG V. INS, 380 F. 2D 236, 237, CERT.
DENIED, 389 U.S. 975 (1967): 

     " WHATEVER THE EFFECT OTHER MISREPRESENTATIONS MAY ARGUABLY

  HAVE ON AN ALIEN'S BEING LEGALLY CONSIDERED TO HAVE BEEN

  INSPECTED UPON ENTERING THE COUNTRY, WE DO NOT NOW CONSIDER; WE

  ARE HERE CONCERNED SOLELY WITH AN ENTRY UNDER A FRAUDULENT CLAIM

  OF CITIZENSHIP.  ALIENS WHO ENTER AS CITIZENS RATHER THAN AS

  ALIENS, ARE TREATED SUBSTANTIALLY DIFFERENTLY BY IMMIGRATION

  AUTHORITIES.  THE EXAMINATION TO WHICH CITIZENS ARE SUBJECTED IS

  LIDELY TO BE CONSIDERABLY MORE PERFUNCTORY THAN THAT ACCORDED

  ALIENS.  GORDON & ROSENFIELD, IMMIGRATION LAW AND PROCEDURE 316D

  (1966).  ALSO, ALIENS ARE REQUIRED TO FILL OUT ALIEN REGISTRATON

  FORMS, COPIES OF WHICH ARE RETAINED BY THE IMMIGRATION

  AUTHORTIES.  8 C.F.R. 235.4, 264.1; 8 U.S.C. 1201 (B), 1301 -

  1306.  FINGERPRINTING IS REQUIRED FOR MOST ALIENS.  8 U.S.C. 1201

  (B), 1301 - 1302.  THE NET EFFECT, THEREFORE, OF A PERSON'S

  ENTERING THE COUNTRY AS AN ADMITTED ALIEN IS THAT THE IMMIGRATION

  AUTHORITIES, IN ADDITION TO MAKING A CLOSER EXAMINATION OF HIS

RIGHT TO ENTER IN THE FIRST PLACE, REQUIRE AND OBTAIN INFORMATION

  AND A VARIETY OF RECORDS THAT ENABLE THEM TO KEEP TRACK OF THE

  ALIEN AFTER HIS ENTRY.  SINCE NONE OF THESE REQUIREMENTS IS

  APPLICABLE TO CITIZENS, AN ALIEN WHO ENTERS BY CLAIMING TO BE A

  CITIZEN HAS EFFECTIVELY PUT HIMSELF IN A QUITE DIFFERENT POSITION

  FROM OTHER ADMITTED ALIENS, ONE MORE COMPARABLE TO THAT OF A

  PERSON WHO SLIPS OVER THE BORDER AND WHO HAS, THEREFORE, CLEARLY

  NOT BEEN INSPECTED." 

PETITIONERS RELY UPON THIS COURT'S DECISION IN INS V. ERRICO, 385
U.S. 214 (1966).  THERE THE COURT DECIDED TWO COMPANION CASES INVOLVING
FRAUDULENT REPRESENTATIONS BY ALIENS IN CONNECTION WITH QUOTA
REQUIREMENTS WHICH EXISTED AT THE TIME ERRICO WAS DECIDED, BUT WHICH
WERE PROSEPECTIVELY REPEALED IN 1965.  ERRICO, A NATIVE OF ITALY,
FALSELY REPRESENTED TO THE AUTHORITIES THAT HE WAS A SKILLED MECHANIC
WITH SPECIALIZED EXPERIRNCE IN REPAIRING FOREIGN AUTOMOBILES.  ON THE
BASIS OF THAT REPRESENTATION HE WAS GRANTED FIRST-PREFERENCE-QUOTA
STATUS UNDER THE STATUTORY PREFERENCE SCHEME THEN IN EFFECT, ENTERED
THE UNITED STATES WITH HIS WIFE, AND LATER FATHERED A CHILD BY HER 

SCOTT, A NATIVE OF JAMAICA, CONTRACTED A MARRIAGE WITH A UNITED
STATES CITIZEN BY PROXY SOLELY FOR THE PURPOSE OF OBTAINING NONQUOTA
STATUS FOR HER ENTRY INTO THE COUNTRY.  SHE NEVER LIVED WITH HER
HUSBAND AND NEVER INTENDED TO DO SO.  AFTER ENTERING THE UNITED STATES
IN 1958, SHE GAVE BIRTH TO AN ILLEGITIMATE CHILD, WHO THERBY BECAME AN
AMERICAN CITIZEN AT BIRTH. 

WHEN THE INS DISCOVERED THE FRAUD IN EACH OF THESE CASES, IT SOUGHT
TO DEPORT BOTH ERRICO AND SCOTT ON THE GROUNDS THAT THEY WERE "WITHIN
ONE OR MORE OF THE CLASSES OF ALIENS EXCLUDABLE BY THE LAW EXISTING AT
THE TIME" OF THEIR ENTRY, AND THEREFORE DEPORTABLE UNDER 241 (A)(1). 
THE INS DID NOT RELY ON THE PROVISIONS OF 212 (A)(19), MAKING
EXCLUDABLE AN ALIEN WHO HAS PROCURED A VISA OR OTHER DOCUMENTATION OR
ENTRY BY FRAUD, NOR INDEED DID IT RELY ON ANY OTHER OF THE SUBSECTIONS
OF 212 DEALING WITH EXCLUDABLE ALIENS.  INSTEAD IT RELIED ON AN
ENTIRELY SEPARATE PORTION OF THE STATUTE, 211, 8 U.S.C. 1181 (A) (1964
ED.), PROSPECTIVELY AMENDED IN 1965, /3/ BUT READING, AS APPLICABLE TO
ERRICO AND SCOTT, AS FOLLOWS: 

     " NO IMMIGRANT SHALL BE ADMITTED INTO THE UNITED STATES UNLESS

  AT THE TIME OF APPLICATION FOR ADMISSION HE (1) HAS VALIED

  UNEXPIRED IMMIGRANT VISA OR WAS BORN SUBSEQUENT TO THE ISSUANCE

  OF SUCH IMMIGRANT VISA OF THE ACCOMPANYING PARENT, (2) IS

  PROPERLY CHARGEABLE TO THE QUOTA SPECIFIED IN THE IMMIGRATN VISA,

  (3) IS A NONQUOTA IMMIGRANT IF SPECIFIED AS SUCH IN THE IMMIGRANT

  VISA, (4) IS OF THE PROPER STATUS UNDER THE QUOTA SPECIFIED IN

  THE IMMIGRANT VISA, AND (5) IS OTHERWISE ADMISSIBLE UNDER THIS

  CHAPTER." 

THE INS CONTENDED THAT ERRICO FELL WITHIN THE PROSCRIPTION OF 211
(A)(4), AND ATHAT SCOTT FELL WITHIN THE PROSCRIPTION OF 211 (A)(3), AND
THAT THEREFORE 211 (A) PROHIBITED THEIR ADMISSION INTO THE UNITED
STATES AS OF THE TIME OF THIER ENTRY.  IT APPARENTLY REASONSED FROM
THESE ADMITTED FACTS THAT BOTH ERRICO AND SCOTT WERE THEREFORE
"EXCLUDABLE" AT THE TIME OF THEIR ENTRY WITHIN THE MEANING OF 241
(A)(1). 

DOCUMENTARY REQUIREMENTS.  SECTION 212 OF THE SAME ACT, 66 STAT. 182 -
188, IS ENTITLED GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS
AND EXCLUDED FROM ADMISSION.  INS COULD CLEARLY HAVE PROCEEDED AGAINST
EITHER SCOTT OR ERRICO UNDER 212 (A)(19), ON THE BASIS OF THEIR
PROCURING A VISA OR OTHER DOCUMENTATION BY FRAUD OR MISREPRESENTATION. 
JUST AS CLEARLY SCOTT AND ERRICO COULD HAVE THEN ASSETED THEIR CLAIM TO
THE BENEFIT OF 241 (F), WAIVING DEPORTATION BASED UPON FRAUD FOR ALIENS
WHO HAD GIVEN BIRTH TO CHILDREN AFTER THEIR ENTRY AND WHO WERE
OTHERWISE ADMISSIBLE.  INSTEAD THE INS RELIED ON THE PROVISIONS OF 211
(A), WHICH DEAL WITH THE GENERAL SUBJECT OF THE NECESSARY DOCUMENTATION
FOR ADMISSION OF IMMIGRANTS RATHER THAN WITH THE GENERAL SUBJECT OF
EXCLUDABLE ALIENS.  RATHER THAN QUESTIONING WHETHER A FAILURE TO COMPLY
WITH 211 (A)(3) OE (4) BY ITSELF RENDERED AN ALIEN "EXCLUDABLE" AS THAT
TERM IS USED IN 241 (A)(2), THE COURT IN ERRICO IMPLICITLY TREATED IT
AS DOING SO AND WENT ON TH HOLD THAT 241 (F) "SAVES FROM DEPORTATION AN
ALIEN WHO MISREPRESENTS HIS STATUS FOR THE PURPOSE OF EVADING QUOTA
RESTRICTIONS, IF HE HAS THE NECESSARY FAMILIAL RELATIONSHIP TO A UNITED
STATES CITIZEN OR LAWFUL PERMANENT REDIDENT."  INS V. ERRICO, 385 U.S.,
AT 215. 

ERRICO WAS DECIDED BY A DIVIDED COURT OVER A STRONG DISSENTING
OPINION.  EVEN THE MOST EXPANSIVE VIEW OF ITS HOLDING COULD NOT AVAIL
THESE PETITIONERS, SINCE 241 (F) WHICH IT CONSTRUED APPLIES BY ITS
TERMS ONLY TO "THE DEPORTATION OF ALIENS WITHIN THE UNITED STATES ON
THE GROUND THAT THEY WERE EXCLUDABLE AT THE TIME OF ENTRY."  HERE, AS
WE HAVE NOTED, INS SEEKS TO DEPORT PETITIONERS, NOT UNDER THE
PROVISIONS OF 241 (A)(1), RELATING TO ALIENS EXCLUDABLE AT THE TIME OF
ENTRY, BUT INSTEAD UNDER THE PROVISIONS OF 241 (A)(2), RELATING TO
ALIENS WHO DO NOT PRESENT THEMSELVES FOR INSPECTION.  YET THERE IS NO
DOUBT THAT THE BROAD LANGUAGE USED IN SOME PORTIONS OF THE COURT'S
OPINION IN ERRICO HAS LED ONE COURT OF APPEALS TO APPLY THE PROVISIONS
OF 241 (F) TO A CASE INDISTINGUISHABLE FROM PETITIONERS', LEE FOOK
CHUEY V. INS, 439 F. 2D 244 (CA9 1970), AND TO DECISIONS OF OTHER
COURTS OF APPEALS IN RELATED AREAS WHICH MAY BE SUMMARIZED IN THE
LANGUAGE OF MACDUFF:  "CONFUSTION NOW HATH MADE HIS MASTERPIECE." 

ALIENS ENTERING THE UNITED STATES UNDER TEMPORARY VISITOR PERMITS,
WHO ACQUIRE ONE OD THE SPECIFIED FAMILIAL RELATIONSHIPS DESCRIBED IN
241 (F) AFTER ENTRY, HAVE ARGUED WITH VARYING RESULTS THAT THEIR
FRAUDULENT INTENT UPON ENTRY TO REMAIN IN THIS COUNTRY PERMANENTLY
CLOAKS THEM WITH IMMUNITY FROM DEPORTATION EVEN THOUGH THEY OVERSTAYED
THEIR VISITOR PERMITS.  /4/ ACCEPTANCE OF THIS THEORY LEADS TO THE
CONCLUSION THAT 241 (F) WAIVES A SUBSTANTIVE GROUND FOR DEPORTATION
BASED ON OVERSTAY IF THE ALIEN CAN AFFIRMATIVELY PROVE HIS FRAUDULENT
INTENT AT THE TIME OF ENTRY, BUT GRANTS NO RELIEF TO ALIENS WITH
EXACTLY THE SAME FAMILIAL RELATIONSHIP WHO ARE UNABLE TO SATISFACTORILY
ESTABLISH THEIR DISHONESTY.  SEE CABUCO-FLORES V. INS, 477 F. 2D 108
(CA9), CERT. DENIED SUB NOM. MANGABAT V. INS, 414 U.S. 841 (1973); CF.
JOLLEY V. INS, 441 F. 2D 1245 (CA5 1971).  BALKING AT SUCH AN
IRRATIONAL RESULT, ONE COURT HAS GONE ASOFAR AS TO DECLARE THAT 241 (F)
WAIVES DEPORTABILITY UNDER 241 (A)(1) EVEN THOUGH NO FRAUD IS INVOLVED
IF THE ALIEN IS ABLE MERELY TO ESTABLISH THE REQUISITE FAMILIAL TIE. 
IN RE YUEN LAN HOM, 289 F. SUPP. 204 (SDNY 1968). 

NOR HAS THERE BEEN AGREEMENT AMONG THOSE COURTS WHICH HAVE CONSTRUED
241 (F) TO WAIVE SUBSTANTIVE GROUNDS FOR DEPORTATION UNDER 212 OTHER
THAN FOR FRAUD DELINEATED IN 212 (A)(19) AS TO WHICH OTHER GROUNDS ARE
WAIVED.  WHILE SOME COURTS HAVE FOUND THAT 241 (F) WAIVES ANY
DEPORTATION CHARGE TO WHICH FRAUD IS "GERMANE" /5/ OTHERS HAVE FOUND IT
WAIVES "QUANTITATIVE" BUT NOT "QUALITATIVE" GROUNDS WHERE ITS
REQUIREMENTS ARE MET.  /6/ STILL OTHERS HAVE REQUIRED THAT "BUT FOR"
THE MISREPRESENTATION, THE ALIEN MEET THE SUBSTANTIVE REQUIREMENTS OF
THE ACT /7/ WHILE AT LEAST ONE COURT HAS DISCERNED IN ERRICO A TEST
REQUIRING THAT THE ALIENS' FRAUDULENT STATEMENT BE TAKEN AS TRUE, WITH
DETERMINATION ON SUCH HYPOTHETICAL FACTS WHETHER THE ALIEN WOULD BE
DEPORTABLE.  CABUCO-FLORES V. INS, SUPRA, AT 110. 

WE DO NOT BELIEVE THAT I41 (F) AS INTERPRETED BY ERRICO REQUIRES
SUCH RESULTS.  WE ADHERE TO THE HOLDING OF THAT CASE, WHICH WE TAKE TO
BE THAT WHERE THE INS CHOOSES NOT TO SEEK DEPORTATION UNDER THE
OBVIOUSLY AVAILABLE PROVISIONS OF 212 (A)(19) RELATING TO THE
FRAUDULENT PROUCREMENT OF VISAS, DOCUMENTATION, OR ENTRY, BUT INSTEAD
ASSERTS A FAILURE TO COMPLY WITH THOSE SEPARATE REQUIREMENTS OF 211
(A), DEALING WITH COMPLIANCE WITH QUOTA REQUIREMENTS, AS A GROUND FOR
DEPORTATION UNDER 241 (A)(1), 241 (F) WAIVES THE FRAUD ON THE PART OF
THE ALIEN IN SHOWING COMPLIANCE WITH THE PROVISIONS OF 211 (A).  IN
VIEW OF THE LANGUAGE OF 241 (F) AND THE COGNATE PROVISIONS OF 212
(A)(19), WE DO NOT BELIEVE ERRICO'S HOLDING MAY PROPERLY BE READ TO
EXTEND THE WAIVER PROVISIONS OF 241 (F) TO ANY OF THE GROUNDS OF
EXCLUDABILITY SPECIFIED IN 212 (A) OTHER THAN SUBSECTION 19.  THIS
CONCLUSION, BY EXTENDING THE WAIVER PROVISION OF 241 (F) NOT ONLY TO
DEPORTATION BASED ON EXCLUDABILITY UNDER I12 (A)(19), BUT TO A CLAIM OF
DEPORTABILITY BASED ON FRAUDULENT MISREPRESENTATION IN ORDER TO SATISFY
THE REQUIREMENT SOF 211 (A), GIVES DUE WEIGHT TO THE CONCERN EXPRESSED
IN ERRICO THAT THE PROVISIONS OF 241 (F) WERE INTENDED TO APPLY TO SOME
MISREPRESENTATIONS THAT WERE MATERIAL TO THE ADMISSIONS PROCEDURE.  IT
LIKEWISE GIVES WEIGHT TO OUR BELIEF THAT CONGRESS, IN ENACTING 241 (F),
WAS INTENT UPON GRANTING RELIEF TO LIMITED CLASSES OF ALIENS WHOSE
FRAUD WAS OF SUCH A NATURE THAT IT WAS MORE THATN COUNTERBALANCED BY
AFTER-ACQUIRED FAMILY TIES; /8/ IT DID NOT INTEND TO ARM THE DISHONEST
ALIEN SEEKING ADMISSION TO OUR COUNTRY WITH A SWORD BY WHICH HE COULD
AVOID THE NUMEROUS SUBSTANTIVE GROUNDS FOR EXCLUSION UNRELATED TO
FRAUD, WHICH ARE SET FORTH IN 212 (A) OF THE IMMIGRATION AND
NATIONALITY ACT. 

THE JUDGMENT OF THE COURT OF APPEALS IS

                                  AFFIRMED. 

/1/ SEE ALSO UNITED STATES V. OSUMA-PICOS, 443 F. 2D 907 (CA9 1971);
GONZALEZ DE MORENO V. INS, 492 F. 2D 532 (CA5 1974); GONZALEZ V. INS,
493 F. 2D 461 (CA5 1974); BUFALINO V. INS, 473 F.2D 729 (CA3), CERT.
DENIED, 412 U.S. 928 (1973). 

/2/ ENTRY WITHOUT INSPECTION IS GROUND FOR DEPORTATION UNDER 241
(A)(2) EVEN THOUGH THE ALIEN WAS NOT EXCLUDABLE AT THE TIME OF ENTRY
UNDER 241 (A)(1).  1 C. GORDON & H. ROSENFIELD, IMMIGRATION LAW AND
PROCEDURE 4.8B (REV. ED. 1975).  IT IS A BASIS FOR DEPORTATION WHOLLY
INDEPENDENT OF ANY BASIS FOR DEPORTATION WHICH MAY EXIST UNDER 241
(A)(1). 

/3/ SECTION 211 OF THE ACT WAS AMENDED BY 9 OF THE ACT OF OCT. 3,
1965, 79 STAT. 917, IN CONNECTION WITH REVISION OF THE NUMERICAL QUOTA
SYSTEM ESTABLISHED BY THE ACT.  SINCE 241 (A)(1) DEALS WITH
EXCLUDABILITY UNDER THE IMMIGRATION LAW AS IT EXISTED AT THE TIME OF
ENTRY, THE COURT IN ERRICO LOOKED TO 211 AS IT EXISTED PRIOR TO THE
AMENDMENT.  INS V. ERRICO, 385 U.S. 214, 215 N. 2 (1966). 

/4/ FOR AN EXAMPLE OF THE DIFFERING RESULTS WITHIN ONE CIRCUIT, SEE
MUSLEMI V. INS, 408 F. 2D 1196 (CA9 1969); VITALES V. INS, 443 F. 2D
343 (CA9 1971), VACATED, 405 U.S. 983 (1972); CABUCO-FLORES V. INS, 477
F. 2D 108 (CA9), CERT. DENIED SUB NOM. MANGABAT V. INS, 414 U.S. 841
(1973).  OTHER CIRCUITS HAVE GENERALLY HELD 241 (F) NOT AVAILABLE ON
SIMILAR FACTS.  DE VARGAS V. INS, 409 F. 2D 335 (CA5 1968); FERRANTE V.
INS, 399 F. 2D 98 (CA6 1968); MILANDE V. INS, 484 F. 2D 774 (CA7 1973);
PREUX V. INS, 484 F.2D 396 (CA10 1973). 

/5/ SEE MISLEMI V. INS, SUPRA, AT 1199. 

/6/ SEE, E.G., GODOY V. ROSENBERG, 415 F.2D 1266 (CA9 1969); JOLLEY
V. INS, 441 F2D 1245 (CA5 1971).  IT IS, OF COURSE, DIFFICULT TO
DETERMINE WHICH GROUNDS FOR EXCLUSION OFIT WHICH CHARACTERIZATION. 
ARGUABLY, FOR EXAMPLE, THE FAILURE TO OBTAIN THE REQUIRED CERTIFICATION
BY THE SECRETARY OF LABOR DEALT WITH IN GODOY V. ROSENBERG, SUPRA,
COULD AS EASILY HAVE BEEN CHARACTERIZED AS "QUALITATIVE."  THE NINTH
CIRCUIT IN LEE FOOK CHUEY V. INS, 439 F.2D 244, 246 (1970), FOUND
EVASION OF INSPECTION A "QUANTITATIVE" GROUND WHILE THE THIRD CIRCUIT
IN BUFALINO V. INS, 473 F.2D, AT 731, FOUND IT A "QUALITATIVE" GROUND
NOT SUBJECT TO 241 (F) WAIVER. 

/7/ SEE, E.G., LOOS V. INS, 407 F.2D 651 (CA7 1969). 

/8/ THE LEGISLATIVE HISTORY OF THIS PROVISION, DESIGNED PRIMARILY TO
PREVENT THE DEPORTATION OF REFUGEES FROM TOTALITARIAN NATIONS FOR
HARMLESS MISREPRESENTATIONS MADE SOLELY TO ESCAPE PERSECUTION, IS FULLY
CONSISTENT WITH OUR INTERPRETATION OF THE PROVISION.  SEE H.R. CONF.
REP. NO. 2096, 82D CONG., 2D SESS., 128 (1952); H.R. DOC. NO. 329, 84TH
CONG., 2D SESS., 5 (1956); H.R. DOC. NO. 85, 85TH CONG., 1ST SESS., 5
(1957); H.R. REP. NO. 1199, 85TH CONG., 1ST SESS., 10 (1957); 103 CONG.
REC. 15487 - 15499, 16298 - 16310 (1957); H.R. REP. NO. 1086, 87TH
CONG., 1ST SESS., 37 - 38 (1961).  THE PREDECESSOR OF CURRENT 241 (F),
7 OF THE IMMIGRATION ACT OF 1957, 71 STAT. 640, WAS CONSISTENTLY
DESCRIBED DURING DEBATE BY ITS SUPPORTERS AS MAKING MINOR ADJUSTMENTS
IN THE IMMIGRATION AND NATURALIZATION SYSTEM.  CONGRESSMAN CELLER, A
SPONSOR OF THE BILL ENACTING 7, SUMMARIZED IT DURING HOUSE DEBATE IN
THESE WORDS: 

"(AFTER SUMMARY OF A NON-RELATED PROVISION OF 7.)  THIS SECTION ALSO
PROVIDES FOR LENIENCY IN THE CONSIDERATION OF VISA APPLICATIONS MADE BY
CLOSE RELATIVES OF UNITED STATES CITIZENS AND ALIENS LAWFULLY ADMITTED
FOR PERMANENT RESIDENCE WHO IN THE PAST MAY HAVE PROCURED DOCUMENTATION
FOR ENTRY MISREPRESENTATION."  103 CONG. REC. 16301 (1957). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

IN INS V. ERRICO, 385 U.S. 214 (1966), RESPONDENT EVADED QUOTA
RESTRICTIONS BY FALSELY CLAIMING TO BE A SKILLED MECHANIC.  ONCE IN
THIS COUNTRY, HE BECAME THE PARENT OF A UNITED STATES CITIZEN.  WE
FOUND ERRICO'S DEPORTATION BARRED BY 241 (F) OF THE IMMIGRATION AND
NATIONALITY ACT, 66 STAT. 163, AS ADDED, 75 STAT. 655, 8 U.S.C. 1251
(F).  IN THE INSTANT CASE, PETITIONERS EVADED QUOTA RESTRICTIONS BY
FALSELY CLAIMING UNITED STATES CITIZENSHIP.  AFTER SETTLING HERE, THEY
TOO BECAME PARENTS OF UNITED STATES CITIZENS.  YET THE COURT TODAY
FINDS THAT 241 (F) IS NO BAR TO THEIR DEPORTATION.  BECAUSE I FIND NO
MATERIAL DIFFERENCE BETWEEN THE INSTANT CASE AND ERRICO, I DISSENT. 


     " THE PROVISION OF THIS SECTION RELATING TO THE DEPORTATION OF

  ALIENS WITHIN THE UNITED STATES ON THE GROUND THAT THEY WERE

  EXCLUDABLE AT THE TIME OF ENTRY AS ALIENS WHO HAVE SOUGHT TO

  PROCURE, OR HAVE PROCURED VISAS OR OTHER DECUMENTATION, OR ENTRY

  INTO THE UNITED STATES BY FRAUD OR MISREPRESENTATION SHALL NOT

  APPLY TO AN ALIEN OTHERWISE ADMISSIBLE AT THE TIME OF ENTRY WHO

  IS THE SPOUSE, PARENT, OR A CHILD OF A UNITED STATES CITIZEN OR

  OF AN ALIEN LAWFULLY ADMITTED FOR PERMANENT RESIDENCE." 

IN ERRICO, SUPRA, AFTER A FULL REVIEW OF THE STATUTE AND ITS
LEGISLATIVE HISTORY, THE COURT CONCLUDED THAT 241 (F) WAS INTENDED "NOT
TO REQUIRE THAT ALIENS WHO ARE CLOSE RELATIVES OF UNITED STATES
CITIZENS HAVE COMPLIED WITH QUOTA RESTRICTIONS TO ESCAPE DEPORTATION
FOR THEIR FRAUD...."  ID., AT 223.  THIS CONCLUSION WAS NECESSARY "TO
GIVE MEANING TO THE STATUTE IN THE LIGHT OF ITS HUMANITARIAN PURPOSE OF
PREVENTING THE BREAKING UP OF FAMILIES COMPOSED IN PART AT LEAST OF
AMERICAN CITIZENS...."  ID., AT 225. 

THUS ERRICO GOVERNS THE INSTANT CASE.  THE COURT, HOWEVER,
DISTINGUISHES ERRICO ON THE GROUND THAT THERE DEPORTATION PROCEEDINGS
WERE BASED ON 211 (A)(4) OF THE ACT, 8 U.S.C. 1181 (A)(4) (1964 ED.),
WHICH DEALT WITH QUOTA REQUIREMENTS, WHEREAS HERE DEPORTATION IS BASED
ON 241 (A)(2), WHICH DEALS WITH INSPECTION REQUIREMENTS.  THIS
DISTINCTION IS GROUNDED ON THE ARGUMENT THAT 241 (F) TRACKS 212
(A)(19), 8 U.S.C. 1182 (A)(19), WHICH DEALS WITH EXCLUDABLE ALIENS, AND
ERRICO WAS SUCH AN ALIEN.  BUT PETITIONERS IN THE INSTANT CASE WERE
ALSO EXCLUDABLE UNDER 212 (A)(19), SINCE THEY SOUGHT "TO ENTER THE
UNITED STATES, BY FRAUD."  INDEED THE COURT'S ENTIRE APPROACH WAS
EXPLICITLY REJECTED IN ERRICO ITSELF: 

     " AT THE OUTSET IT SHOULD BE NOTED THAT EVEN THE GOVERNMENT

  AGREES THAT 241 (F) CANNOT BE APPLIED WITH STRICT LITERALNESS. 

  LITERALLY, 241 (F) APPLIES ONLY WHEN THE ALIEN IS CHARGED WITH

  ENTERING IN VIOLATION OF 212 (A)(19) OF THE STATUTE, WHICH, WHICH

  EXCLUDES FROM ENTRY 

"(ANY ALIEN WHO ... HAS PROCURED A VISA OR OTHER DOCUMENTATION ...
BY FRAUD, OR BY WILLFULLY MISREPRESENTING A MATERIAL FACT.'  UNDER THIS
INTERPRETATION, AN ALIEN WHO ENTERED BY FRAUD COULD BE DEPORTED FOR
HAVING ENTERED WITH A DEFECTIVE VISA OR FOR OTHER DOCUMENTARY
IRREGULARITIES EVEN IF HE WOULD HAVE BEEN ADMISSIBLE IF HE HAD NOT
COMMITTED THE FRAUD.  THE GOVERNMENT CONCEDES THAT SUCH AN
INTERPRETATION WOULD BE INCONSISTENT WITH THE MANIFEST PURPOSE OF THE
241 (F) WAIVES ANY DEPORTATION CHARGE THAT RESULTS DIRECTLY FROM THE
MISREPRESENTATION REGARDLESS OF THE SECTION OF THE STATUTE UNDER WHICH
THE CHARGE WAS BROUGHT, PROVIDED THAT THE ALIEN WAS 'OTHERWISE
ADMISSIBLE AT THE TIME OF ENTRY.'"  ERRICO, SUPRA, AT 217 (EMPHASIS
ADDED; FOOTNOTE OMITTED). 

EVEN IF STATUTORY LANGUAGE IS UNCLEAR ANY DOUBT SHOULD BE RESOLVED
IN FAVOR OF THE ALIEN SINCE "DEPORTATION IS A DRASTIC MEASURE AND AT
TIMES THE EQUIVALENT OF BANISHMENT OR EXILE."  FONG HAW TAN V. PHELAN,
333 U.S. 6, 10 (1948).  SEE ALSO BARBER V. GONZALES, 347 U.S. 637, 642
643 (1954); ERRICO, SUPRA, AT 225.  TODAY THE COURT STRAINS TO
CONSTRUE STATUTORY LANGUAGE AGAINST THE ALIEN. 

THE GOVERNMENT CONTENDS THAT IF PETITIONER WERE TO SUCCEED IN THIS
CASE, "THE SKY WOULD FALL IN ON THE IMMIGRATION AND NATURALIZATION
SERVICE."  /1/ APART FROM THE LACK OF CREDIBLE SUPPORT FOR THIS DIRE
PREDICTION, /2/ IF THE IMMIGRATION AND NATIONALITY ACT IS INDEED
UNWORKABLE, THE REMEDY IS FOR CONGRESS TO AMEND IT, NOT FOR THIS COURT
TO DISTORT ITS LANGUAGE AND THE CASES CONSTRUING IT. 

/1/ TR. OF ORAL ARG. 44 

/2/ THE GOVERNMENT CONTENDS:  " AN ALIEN WHO ENTERS AS AN IMMIGRANT
SUBMITS HIMSELF TO THE INVESTIGATIONS REQUIRED FOR THE ISSUANCE OF AN
IMMIGRATION VISA, AND TO THE SUPPLEMENTARY INSPECTION AT THE PORT OF
ENTRY.  RECORDS OF THESE INVESTIGATIONS ARE AVAILABLE WHEN A CLAIM OF
ELIGIBILITY FOR WAIVER UNDER SECTION 241 (F) IS SUBSEQUENTLY MADE. 
THEY PROVIDE THE IMMIGRATION SERVICE WITH A SUBSTANTIAL BASIS FOR
DETERMINING LATER, WHEN THE WAIVER IS SOUGHT, WHETHER THE ALIEN WAS
'OTHERWISE ADMISSIBLE AT THE TIME OF ENTRY' AND THUS ENTITLED TO THE
WAIVER. 

" IN CONTRAST, THERE IS NO CONTEMPORANEOUS INVESTIGATION OF AN ALIEN
WHO ENTERS ON A FALSE CLAIM OF CITIZENSHIP; THERE IS UNLIKELY EVEN TO
BE ANY RECORD OF SUCH ENTRY.  IT WOULD THEREFORE BE EXTEMELY DIFFICULT,
IF NOT IMPOSSIBLE, TO DETERMINE WHETHER SUCH AN ALIEN WAS 'OTHERWISE
ADMISSIBLE AT THE TIME OF ENTRY.'"  BRIEF FOR RESPONDENT 10 - 11. 

THIS ARGUMENT, HOWEVER, OVERRATES THE EFFECTIVENESS OF THE IMMIGRANT
VISA SYSTEM.  THE FIFTH AND THE NINTH CIRCUITS, IN DECISIONS
CONFLICTING WIHT THE OPINION BELOW, HAVE FOUND THAT THE VISA SYSTEM
PROVIDES NO BASIS FOR THE DISTINCTION THE GOVERNMENT URGES:  " ALMOST
INVARIABLY, BY THE TIME THAT THE RELIEF PROVISION OF 241 (F) IS
INVOKED, THE INTEGRITY OF THE IMMIGRANT VISA SYSTEM HAS BEEN LONG
VIOLATED.  SECTION 241 (F) DEALS WITH THE PROBLEM AFTER THE BREACH HAS
OCCURRED....     "... FOR EXAMPLE, WHEN THE ALIEN MISREPRESENTS HIS
IDENTITY DURING THE VISA ISSUING PROCESS, THE INFORMATION ELICITED FROM
HIM IS OFTEN VALUELESS.  WHEN THE FRAUD IS DISCOVERED, THE INFORMATION
DERIVED FROM THE VISA PROCESS WHICH WAS TAINTED BY THE
MISREPRESENTATION, MAY BE USELESS OR HAVE LITTLE OR NO BEARING UPON THE
ULTIMATE DISPOSITION OF THE CASE."  LEE FOOK CHUEY V. INS, 439 F.2D
244, 250 - 251 (CA9 1970).  " LIES CONCERNING IDENTITY, OCCUPATION, AND
OCUNTRY OF ORIGIN MAY WELL RENDER THE INITIAL IMMIGRATION INVESTIGATION
EITHER AS WORTHLESS AS NO INVESTIGATION AT ALL, OR AS DIFFICULT AND
FRUITLESS AS A LATER 241 (F) INQUIRY."  GONZALEZ DE MORENO V. INS, 492
F.2D 532, 537 (CA5 1974). 

AS THE NINTH CIRCUIT HELD, THE VERY ESSENCE OF ERRICO WAS THAT "(W)
HEN 241 (F) IS INVOKED, THE IMMIGRATION PROCESSING SYSTEM HAS ALREADY
PROVED INEFFECTIVE.  CONGRESS MADE THE WHOLLY REASONABLE CHOICE THAT
THE INTEREST IN FAMILY UNITY OUTWEIGHS THE DETERRENT EFFECTS OF A MORE
DRACONIAN POLICY."  LEE FOOK CHUEY, SUPRA, AT 251. 

BENJAMIN GLOBMAN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS HARRY COOPER. 

DEPUTY SOLICITOR GENERAL LA FONTANT ARGUED THE CAUSE FOR
RESPONDENT.  WITH HER ON THE BRIEF WERE SOLICITOR GENERAL BORK,
ASSISTANT ATTORNEY GENERAL PETERSEN, HARRIET S. SHAPIRO, AND SIDNEY M.
GLAZER. 

ROBERT B. JOHNSTONE, ARMANDO MENOCAL III, AND RICHARD A. GONZALES
FILED A BRIEF FOR DANIEL PEREZ ECHEVERRIA AS AMICUS CURIAE URGING
REVERSAL.  CURIAE URGING REVERSAL. 
..END :












UNITED STATES V. MAINE, 420 U.S. 515 


       UNITED STATES V. MAINE ET AL.

        ON EXCEPTIONS TO REPORT OF SPECIAL MASTER

        NO. 35, ORIG.  ARGUED FEBRUARY 24 - 25, 1975--DECIDED MARCH

           17, 1975. 


    THE UNITED STATES, TO THE EXCLUSION OF DEFENDANT ATLANTIC

  COASTAL STATES, HELD TO HAVE SOVEREIGN RIGHTS OVER THE SEABED AND

  SUBSOIL UNDERLYING THE ATLANTIC OCEAN, LYING MORE THAN THREE

  GEOGRAPHICAL MILES SEAWARD FROM THE ORDINARY LWO WATERMARK AND

  FROM THE OUTER LIMITS OF INLAND COASTAL WATERS, EXTENDING SEAWARD

  TO THE OUTER EDGE OF THE CONTINENTAL SHELF, THAT AREA, LIKE THE

  SEABED ADJACENT TO THE COASTLINE, BEING IN THE DOMAIN OF THE

  NATION RATHER THAN OF THE SEPARATE STATES.  UNITED STATES V.

  CALIFORNIA, 332 U.S. 19; UNITED STATES V. LOUISIANA, 339 U.S.

 699; UNITED STATES V. TEXAS, 339 U.S. 707.  AND THIS RULE THAT

  THE PARAMOUNT RIGHTS TO THE OFFSHORE SEABED INHERE IN THE FEDERAL

  GOVERNMENT AS AN INCIDENT OF NATIONAL SOVEREIGNTY IS CONFIRMED BY

  BOTH THE SUBMERGED LANDS ACT OF 1953 AND THE OUTER CONTIENTAL

  SHELF LANDS ACT OF 1953.  PP. 519 - 528. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL

  OTHER MEMBERS JOINED EXCEPT DOUGLAS, J., WHO TOOK NO PART IN THE

  CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

SEEKING TO INVOKE THE JURISDICTION OF THIS COURT UNDER ART. III, 2,
AND 28 U.S.C. 1251 (B), THE UNITED STATES IN APRIL 1969 ASKED LEAVE TO
FILE A COMPLAINT AGAINST THE 13 STATES BORDERING ON THE ATLANTIC OCEAN-
MAINE, NEW HAMPSHIRE, MASSACHUSETTS, RHODE ISLAND, NEW YORK, NEW
HERSEY, DELAWARE, MARYLAND, VIRGINIA, NORTH CAROLINA, SOUTH CAROLINA,
GEORGIA, AND FLORIDA.  /1/ WE GRANTED LEAVE TO FILE, 395 U.S. 955, ON
JUNE 16, 1969.  THE COMPLAINT ASSERTED A SEPARATE CAUSE OF
ACTIONAGAINST EACH OF THE STATES WHICH ALLEGED THAT: 

"(THE UNITED STATES IS NOW ENTITLED TO THE EXCLUSION OF THE
DEFENDANT STATE, TO EXERCISE SOVEREIGN RIGHTS OVER THE SEABED AND
SUBSOIL UNDERLYING THE ATLANTIC OCEAN, LYING MORE THAN THREE
GEOGRAPHICAL MILES SEAWARD FROM THE ORDIANRY LOW-WATERMARK AND FROM THE
OUTER LIMIT OF INLAND WATERS ON THE COAST, EXTENDING SEAWARD TO THE
OUTER EDGE OF THE CONTINENTAL SHELF, FOR THE PURPOSE OF EXPLORING THE
AREA AND EXPLOITING ITS NATURAL RESOURCES."  IT WAS FURTHER ALLEGED
TAHT EACH OF THE STATES CLAIMED SOME RIGHT OR TITLE TO THE RELEVANT
AREA AND WAS INTERFERING WITH THE RIGHTS OF THE UNITED STATES.  IT WAS
THEREFORE PRAYED THAT A DECREE BE ENTERED DECLARING THE RIGHTS OF THE
UNITED STATES AND THAT SUCH FURTHER RELIEF BE AWARDED AS MIGHT PROVE
PROPER.  /2/ 

THE DEFENDANTS ANSWERED, EACH GENERALLY DENYING PROPRIETARY RIGHTS
OF THE UNITED STATES IN THE SEABED IN THE AREA BEYOND THE THREE-MILE
MARGINAL SEA.  EACH OF THEM, EXCEPT FLORIDA, /3/ CLAIMED FOR ITSELF, AS
SUCCESSOR IN TITLE TO CERTAIN GRANTEES OF THE CROWN OF ENGLAND (AND IN
THE CASE OF NEW YORK, TO THE CROWN OF HOLLAND), THE EXCLUSIVE RIGHT OF
DOMINION AND CONTROL OVER THE SEABED UNDERLYING THE ATLANTIC OCEAN
SEAWARD FROM ITS COASTLINE TO THE LIMITS OF THE JURISDICITON OF THE
UNITED STAES, ASSERTING AS WELL THAT ANY ATTEMPT BY THE UNITED STATES
TO INTERFERE WITH THESE RIGHTS WOULD IN ITSELF VIOLATE THE CONSTITUTION
OF THE UNITED STATES.  /4/ 

WITHOUT ACTING ON THE MOTION FOR JUDGMENT FILED BY THE UNITED STATES
THAT ASSERTED THAT THERE WAS NO MATERIAL ISSUE OF FACT TO BE RESOLVED,
WE ENTERED AN ORDER APPOINTING THE HONORABLE ALBERT B. MARIS AS SPECIAL
MASTER AND REFERRED THE CASE TO HIM WIHT AUTHORITY TO REQUEST FURTHER
PLEADINGS, TO SUMMON WITNESSES, AND TO TAKE SUCH EVIDENCE AND SUBMIT
SUCH REPORTS AS HE MIGHT DEEM APPROPRIATE.  389 U.S. 947 (1970). 
BEFORE THE SPECIAL MASTER, THE UNITED STATES CONTENDED THAT BASED ON
UNITED STATES V. CALIFORNIA, 332 U.S. 19 (1947), UNITED STATES V.
LOUISIANA, 339 U.S. 699 (1950), AND UNITED STATES V. TEXAS, 339 U.S.
707 (1950), IT WAS ENTITLED TO JUDGMENT IN ACCORDANCE WITH ITS MOTION. 
THE DEFENDANT STATES ASSERTED THAT THEIR CASES WERE DISTINGUISHABLE
FROM THE PRIOR CASES AND THAT IN ANY EVENT, CALIFORNIA, LOUISIANA, AND
TEXAS WERE ERRONEOUSLY DECIDED AND SHOULD BE OVERRULED.  THEY OFFERED,
AND THE SPECIAL MASTER RECEIVED, VOLUMINOUS DECUMENTARY EVIDENCE TO
SUPPORT THEIR CLAIMS TAHT, CONTRARY TO THE COURT'S PRIOR DECISIONS,
THEY ACQUIRED DOMINION OVER THE OFFSHORE SEABED PRIOR TO THE ADOPTION
OF THE CONSTITUTION AND AT NO TIME RELINQUISHED IT TO THE UNITED
STATES.  AT THE CONCLUSION OF THE PROCEEDING BEFORE HIM, THE SPECIAL
MASTER SUBMITTED A REPORT (HEREINAFTER REPORT) WHICH THE UNITED STATES
SUPPORTS IN ALL RESPECTS BUT TO WHICH THE STATES HAVE SUBMITTED
EXTENSIVE AND DETAILED EXCEPTIONS.  THE CONTROVERSY IS NOW BEFORE US ON
THE REPORT, THE EXCEPTIONS TO IT, AND THE BRIEFS AND ORAL ARGUMENTS OF
THE PARTIES. 

IN HIS REPORT, THE SPECIAL MASTER CONCLUDED THAT THE CALIFORNIA,
LOUISIANA, AND TEXAS CASES, WHICH HE DEEMED BINDING ON HIM, GOVERNED
THIS CASE AND REQUIRED THAT JUDGMENT BE ENTERED FOR THE UNITED STATES. 
ASSUMING, HOWEVER, THAT THOSE CASES WERE OPEN TO RE-EXAMINATION, THE
SPECIAL MASTER WENT ON INDEPENDENTLY TO EXAMINE THE LEGAL AND FACTUAL
CONTENTIONS OF THE STATES AND CONCLUDED THAT THEY WERE WITHOUT MERIT
AND THAT THE COURT'S PRIOR CASES SHOULD BE REAFFIRMED. 

WE FULLY AGREE WITH THE SPECIAL MASTER THAT CALIFORNIA, LOUISIANA,
AND TEXAS RULE THE ISSUES BEFORE US.  WE ALSO DECLINE TO OVERRULE THOSE
CASES AS THE DEFENDANT STATES REQUEST US TO DO. 

UNITED STATES V. CALIFORNIA, SUPRA, INVOLVED AN ORIGINAL ACTION
BROUGHT IN THIS COURT BY THE UNITED STATES SEEKING A DECREE DECLARING
ITS PARAMOUNT RIGHTS, TO THE EXCLUSION OF CALIFORNIA, TO THE SEABED
UNDERLYING THE PACIFIC OCEAN AND EXTENDING THREE MILES FROM THE
COASTLINE AND FROM THE SEAWARD LIMITS OF THE STATE'S INLAND WATERS. 
CALIFORNIA ANSWERED, CLAIMING OWNERSHIP OF THE DISPUTED SEABED.  THE
BASIS OF ITS CLAIM, AS THE COURT DESCRIBED IT, WAS THAT THE THREE-MILE
BELT LAY WITHIN THE HISTORIC BOUNDARIES OF THE STATE; "THAT THE
ORIGINAL THIRTEEN STATES ACQUIRED FROM THE CROWN OF ENGLAND TITLE TO
ALL LANDS WITHIN THEIR BOUNDARIES UNDER NAVIGABLE WATERS, INCLUDING A
THREE-MILE BELT IN ADJACENT SEAS; AND THAT SINCE CALIFORNIA WAS
ADMITTED AS A STATE ON AN 'EQUAL FOOTING' WITH THE ORGINAL STATES,
CALIFORNIA AT THAT TIME BECAME VESTED WITH TITLE TO ALL SUCH LANDS." 

332 U.S., AT 23.  THE COURT REJECTED CALIFORNIA'S CLAIM.  THE ORGINAL
COLONIES HAD NOT "SEPARATELY ACQUIRED OWNERSHIP TO THE THREE-MILE BELT
OR THE SOIL UNDER IT, EVEN IF THEY DID ACQUIRE ELEMENTS OF THE
SOVEREIGNTY OF THE ENGLISH CROWN BY THEIR REVOLUTION AGAINST IT."  ID.,
AT 31.  AS THE COURT VIEWED OUR HISTORY, DOMINION OVER THE MARGINAL SEA
WAS FIRST ACCOMPLISHED BY THE NATIONAL GOVERNMENT RATHER THAN BY THE
COLONIES OR BY THE STATES.  MOREOVER, THE COURT WENT ON TO HOLD THAT
THE "PROTECTION AND CONTROL OF (THE MARGINAL SEA) HAS BEEN AND IS A
FUNCTION OF NATIONAL EXTERNAL SOVEREIGNTY," ID., AT 34, AND THAT IN OUR
CONSTITUTIONAL SYSTEM PARAMOUNT RIGHTS OVER THE OCEAN WATERS AND THEIR
SEABED WERE VESTED IN THE FEDERAL GOVERNMENT. 

THE UNITED STATES LATER BROUGHT ACTIONS TO CONFIRM ITS TITLE TO THE
SEABED ADJACENT TO THE COASTLINE OF OTHER STATES.  UNITED STATES V.
LOUISIANA, SUPRA, WAS ONE OF THEM.  THERE LOUISIANA CLAIMED TITLE TO
THE SEABED UNDER WATERS EXTENDING 27 MILES INTO THE GULF OF MEXICO, THE
BASIS OF THE CLAIM BEING THAT BEFORE AND SINCE THE TIME OF ITS
ADMISSION TO THE UNION, LOUISIANA HAD EXERCISED DOMINION OVER THE OCEAN
AREA IN QUESTION AND THAT ITS LEGISLATURE HAD FORMALLY INCLUDED THE 2(-
MILE BELT WITHIN THE BOUNDARIES OF THE STATE.  THE COURT GAVE JUDGMENT
FOR THE UNITED STATES, HOLDING THAT UNITED STATES V. CALIFORNIA WAS
CONTROLLING AND EMPHASIZING THAT PARAMOUNT RIGHTS IN THE MARGINAL SEA
AND SEABED WERE INCIDENTS OF NATIONAL SOVEREIGNTY:

  AS WE POINTED OUT IN UNITED STATES V. CALIFORNIA, THE ISSUE IN
THIS CLASS OF LITIGATION DOES

  NOT TURN ON TITLE OR OWNERSHIP IN THE OCNVENTIONAL SENSE. 
CALIFORNIA, LIKE THE THIRTEEN

  ORIGIANL COLONIES, NEVER ACQUIRED OWNERSHIP IN THE MARGINAL SEA. 
THE CLAIM TO OUR THREE-MILE

  BELT WAS FIRST ASSERTED BY THE NATIONAL GOVERNMENT.  PROTECTION
AND CONTROL OF THE AREA ARE

  INDEED FUNCTIONS OF NATIONAL EXTERNAL SOVEREIGNTY.  332 U.S. PP.
31 - 34.  THE MARGINAL SEA IS

  A NATIONAL, NOT A STATE CONCERN.  NATIONAL INTERESTS, NATIONAL
RESPONSIBILITIES, NATIONAL

  CONCERNS ARE INVOLVED.  THE PROBLEMS OF COMMERCE, NATIONAL
DEFENSE, RELATIONS WITH OTHER

  POWERS, WAR AND PEACE FOCUS THERE.  NATIONAL RIGHTS MUST
THEREFORE BE PARAMOUNT IN THAT

  AREA."  339 U.S., AT 704.  LOUISIANA HAD "NO STRONGER CLAIM TO
OWNERSHIP OF THE MARGINAL SEA THAN THE ORIGINAL THIRTEEN COLONIES OR
CALIFORNIA HAD," ID., AT 705; AND ITS CLAIM, LIKE THEIRS, GAVE WAY TO
THE OVERRIDING RULE THAT "THE THREE-MILE BELT IS IN THE DOMAIN OF THE
NATION RATHER THAN THAT OF THE SEPARATE STATES," IBID.  A FORTIORI, THE
WATERS AND SEABED BEYOND THAT LIMIT WERE GOVERNED BY THE SAME RULE. 

IN A COMPANION CASE, UNITED STATES V. TEXAS, SUPRA, THE COURT AGAIN
REAFFIRMED THE HOLDING AND RATIONALE OF UNITED STATES V. CALIFORNIA AND
AGAIN REJECTED THE CLAIMS OF THE STATE BASED ON ITS HISTORIC BOUNDARIES
AT THE TIME OF THE STATE'S ADMISSION TO THE UNION:

  IF THE PROPERTY, WHATEVER IT MAY BE, LIES SEAWARD OF LOW-WATER
MARK, ITS USE, DISPOSITION,

  MANAGEMENT, AND CONTROL INVOLVE NATIONAL INTERESTS AND NATIONAL
RESPONSIBILITIES.  THAT IS THE

  SOURCE OF NATIONAL RIGHTS IN IT.  SUCH IS THE RATIONALE OF THE
CALIFORNIA DECISION WHICH WE

  HAVE APPLIED TO LOUISIANA'S CASE.  THE SAME RESULT MUST BE
REACHED HERE IF 'EQUAL

  FOOTING' WITH THE VARIOUS STATES IS TO BE ACHIEVED.  UNLESS ANY
CLAIM OR TITLE WHICH THE

  REPUBLIC OF TEXAS HAD TO THE MARGINAL SEA IS SUBORDINATED TO THIS
FULL PARAMOUNT POWER OF THE

  UNITED STATES ON ADMISSION, THERE IS OR MAY BE IN PRACTICAL
EFFECT A SUBTRACTION IN FAVOR OF

 TEXAS FROM THE NATIONAL SOVEREIGNTY OF THE UNITED STATES.  YET
NEITHER THE ORIGINAL THIRTEEN

  STATES (UNITED STATES V. CALIFORNIA, SUPRA, PP. 31 - 32) NOR
CALIFORNIA NOR LOUISIANA ENJOYS

  SUCH AN ADVANTAGE."  339 U.S., AT 719. 

THE SPECIAL MASTER WAS CORRECT IN CONCLUDING THAT THESE CASES,
UNLESS THEY ARE TO BE OVERRULED, COMPLETELY DISPOSE OF THE STATES'
CLAIMS OF OWNERSHIP HERE.  THESE DECISIONS CONSIDERED AND EXPRESSLY
REJECTED THE ASSERTION THAT THE ORIGINAL STATES WERE ENTITLED TO THE
SEABED UNDER THE THREE-MILE MARGINAL SEA.  THEY ALSO HELD THAT UNDER
OUR CONSTITUTIONAL ARRANGEMENT PARAMOUNT RIGHTS TO THE LANDS UNDERLYING
THE MARGINAL SEA ARE AN INCIDENT TO NATIONAL SOVEREIGNTY AND THAT THEIR
CONTROL AND DISPOSITION IN THE FIRST INSTANCE ARE THE BUSINESS OF THE
FEDERAL GOVERNMENT RATHER THAN THE STATES. 

THE STATES SERIOUSLY CONTEND THAT THE PRIOR CASES, AS WELL AS THE
SPECIAL MASTER, WERE IN ERROR IN DENYING THAT THE ORIGINAL COLONIES HAD
SUBSTANTIAL RIGHTS IN THE SEABED PRIOR TO INDEPENDENCE, AND AFTERWARDS,
BY GRANT FROM OR SUCCESSION TO THE SOVEREIGNTY OF THE CROWN.  GIVEN THE
DUAL BASIS OF THE CALIFORNIA DECISION, HOWEVER, AND OF THOSE THAT
FOLLOWED IT, THE STATES' CLAIMS OF OWNERSHIP PRIOR TO THE ADOPTION OF
THE CONSTITUTION ARE NOT DISPOSITIVE.  WHATEVER INTEREST THE STATES
MIGHT HAVE HAD IMMEDIATELY PRIOR TO STATEHOOD, THE SPECIAL MASTER WAS
CORRECT IN READING THE COURT'S CASES TO HOLD THAT AS A MATTER OF
"PURELY LEGAL PRINCIPLE ... THE CONSTITUTION ... ALLOTTED TO THE
FEDERAL GOVERNMENT JURISDICTION OVER FOREIGN COMMERCE, FOREIGN AFFAIRS
AND NATIONAL DEFENSE" AND THAT "2T NECESSARILY FOLLOWS, AS A MATTER OF
CONSTITUTIONAL LAW, THAT AS ATTRIBUTES OF THESE EXTERNAL SOVEREIGN
POWERS THE FEDERAL GOVERNMENT HAS PARAMOUNT RIGHTS IN THE MARGINAL
SEA."  REPORT 23. 

UNITED STATES V. TEXAS UNMISTAKABLY DECLARES THIS CONSTITUTIONAL
PROPOSITION.  THERE, TEXAS CLAIMED THAT PRIOR TO JOINING THE UNION, IT
WAS AN INDEPENDENT SOVEREIGN WITH BOUNDARIES EXTENDING A SUBSTANTIAL
DISTANCE IN THE GULF OF MEXICO--BOUNDARIES WHICH CONGRESS HAD ALLEGEDLY
RECOGNIZED WHEN TEXAS WAS ADMITTED TO THE UNION.  IN DECIDING AGAINST
THE STATE, THE COURT DID NOT REJECT THE PRESTATEHOOD RIGHTS OF TEXAS S
IT HAD THE RIGHTS OF THE 13 ORIGINAL STATES IN THE CALIFORNIA CASE.  ON
THE CONTRARY, THE COURT WAS QUITE WILLING TO "ASSUME THAT AS A REPUBLIC
SHE HAD NOT ONLY FULL SOVEREIGNTY OVER THE MARGINAL SEA BU OWNERSHIP OF
IT, OF THE LAND UNDERLYING IT, AND OF ALL THE RICHES WHICH IT HELD.  IN
OTHER WORDS, WE ASSUME THAT IT THEN HAD DOMINIUM AND IMPERIUM IN AND
OVER THIS BELT WHICH THE UNITED STATES NOW CLAIMS."  339 U.S., AT 717. 
SUCH PRIOR OWNERSHIP NEVERTHELESS DID NOT SURVIVE BECOMING A MEMBER OF
THE UNION:

  WHEN TEXAS CAME INTO THE UNION, SHE CEASED TO BE AN INDEPENDENT
NATION.  SHE THEN BECAME A

  SISTER STATE ON AN 'EQUAL FOOTING'  WITH ALL THE OTHER STATES. 
THAT ACT CONCEDELY ENTAILED A

  RELINQUISHMENT OF SOME OF HER SOVEREIGNTY.  THE UNITED STATES
THEN TOOK HER PLACE AS RESPECTS

  FOREIGN COMMERCE, THE WAGING OF WAR, THE MAKING OF TREATIES,
DEFENSE OF THE SHORES, AND THE

  LIKE.  IN EXTERNAL AFFAIRS THE UNITED STATES BECAME THE SOLE AND
EXCLUSIVE SPOKESMAN FOR THE

  NATION.  WE HOLD THAT AS AN INCIDENT TO THE TRANSFER OF THAT
SOVEREIGNTY ANY CLAIM THAT TEXAS

  MAY HAVE HAD TO THE MARGINAL SEA WAS RELINQUISHED TO THE UNITED
STATES."  ID., AT 717 - 718.  THE COURT STOOD SQUARELY ON THE
CALIFORNIA AND LOUISIANA CASES FOR THIS CONCLUSION; AND IN OUR VIEW,
THE SPECIAL MASTER CORRECTLY READ THESE AUTHORITIES, UNLESS THEY WERE
TO BE OVERRULED IN ALL RESPECTS, AS FORECLOSING THE PRESENT EFFORTS OF
THE STATES TO DEMONSTRATE ERROR IN THE COURT'S UNDERSTANDING OF HISTORY
IN THE CALIFORNIA CASE. 

ASSUMING THE POSSIBILITY, HOWEVER, THAT THE COURT MIGHT RE-EXAMINE
THE CONSTITUTIONAL PREMISE OF CALIFORNIA AND SIMILAR CASES, THE SPECIAL
MASTER PROCEEDED, WITH ADMIRABLE DILIGENCE AND LUCIDITY, TO ADDRESS THE
HISTORICAL EVIDENCE PRESENTED BY THE STATES AIMED PRIMARILY AT
ESTABLISHING THAT THE COLONIES HAD LEGITIMATE CLAIMS TO THE MARGINAL
SEA PRIOR TO INDEPENDENCE AND STATEHOOD AND THAT THE NEW STATES NEVER
SURRENDERED THESE RIGHTS TO THE FEDERAL GOVERNMENT.  THE SPECIAL
MASTER'S ULTIMATE CONCLUSION WAS THAT THE COURT'S VIEW OF OUR HISTORY
EXPRESSED IN THE CALIFORNIA CASE WAS ESSENTIALLY CORRECT AND THAT IF
PRIOR CASES WERE OPEN TO RE-EXAMINATION, THEY SHOULD BE REAFFIRMED IN
ALL RESPECTS.     WE NEED NOT RETRACE THE SPECIAL MASTER'S ANALYSIS OF
HISTORICAL EVIDENCE, FOR WE ARE FIRMLY CONVINCED THAT WE SHOULD NOT
UNDERTAKE TO RE-EXAMINE THE CONSTITUTIONAL UNDERPINNINGS OF THE
CALIFORNIA CASE AND OF THOSE CASES WHICH FOLLOWED AND EXPLICATED THE
RULE THAT PARAMOUNT RIGHTS TO THE OFFSHORE SEABED INHERE IN THE FEDERAL
GOVERNMENT AS AN INCIDENT OF NATIONAL SOVEREIGNTY.  THAT PREMISE, AS WE
HAVE INDICATED, AHS BEEN REPEATED TIME AND AGAIN IN THE CASES.  IT IS
ALSO OUR VIEW, CONTRARY TO THE CONTENTIONS OF THE STATES, THAT THE
PREMISE WAS EMBRACED RATHER THAN REPUDIATED BY CONGRESS IN THE
SUBMERGED LANDS ACT OF 1953, 67 STAT. 29, 43 U.S.C. 1301.  IN THAT
LEGISLATION, IT IS TRUE, CONGRESS TRANSFERRED TO THE STATES THE RIGHTS
TO THE SEABED UNDERLYING THE MARGINAL SEA; HOWEVER, THIS TRANSFER WAS
IN NO WISE INCONSISTENT WITH PARAMOUNT NATIONAL POWER BUT WAS MERELY AN
EXERCISE OF THAT AUTHORITY.  AS THE SPECIAL MASTER SAID, THE COURT IN
ITS PRIOR CASES "DID NOT INDICATED THAT THE FEDERAL GOVERNMENT BY ACT
OF CONGRESS MIGHT NOT, AS IT DID BY TEH SUBSEQUENTLY ENACTED SUBMERGED
LANDS ACT, GRANT TO THE RIPARIAN STATES RIGHTS TO THE RESOURCES OF THE
FEDERAL AREA, SUBJECT TO THE RESERVATION BY THE FEDERAL GOVERNMENT OF
ITS RIGHTS AND POWERS OF REGULATION AND CONTROL FOR PURPOSES OF
COMMERCE, NAVIGATION, NATIONAL DEFENSE, AND INTERNATIONAL AFFAIRS." 
REPORT 16.  THE QUESTION BEFORE THE COURT IN THE CALIFORNIA CASE WAS
"WHETHER THE STATE OR THE FEDERAL GOVERNMENT HAS THE PARAMOUNT RIGHT
AND POWER TO DETERMINE IN THE FIRST INSTANCE WHEN, HOW, AND BY WHAT
AGENCIES, FOREIGN OR DOMESTIC, THE OIL AND OTHER RESOURCES OF THE SOIL
OF THE MARGINAL SEA, KNOWN OR HEREAFTER DISCOVERED, MAY BE EXPLOITED." 
332 U.S., AT 29.  THE DECISION THERE WAS THAT THE NATIONAL GOVERNMENT
HAD THE POWER AT ISSUE, THE COURT DECLINING TO SPECULATE THAT "
CONGRESS, WHICH HAS CONSTITUTIONAL OCNTROL OVER GOVERNMENT PROPERTY,
WILL EXECUTE ITS POWERS IN SUCH A WAY AS TO BRING ABOUT INJUSTICES TO
STATES, THEIR SUBDIVISIONS, OR PERSONS ACTING PURSUANT TO THEIR
PERMISSION."  ID., AT 40. 

THE SUBMERGED LANDS ACT DID INDEED GRANT TO THE STATES DOMINION OVER
THE OFFSHORE SEABED WITHIN THE LIMITS DEFINED IN THE ACT AND RELEASED
THE STATES FROM ANY LIBILITY TO ACCOUNT FOR ANY PRIOR INCOME RECEIVED
FROM STATE LEASES THAT HAD BEEN GRANTED WITH RESPECT TO THE MARGINAL
SEA.  /5/ BUT IN FURTHER EXERCISE OF PARAMOUNT NATIONAL AUTHORITY, THE
ACT EXPRESSLY DECLARED THAT NOTHING IN THE ACT 

"SHALL BE DEEMED TO AFFECT IN ANY WISE THE RIGHTS OF THE UNITED
STATES TO THE NATURAL RESOURCES OF THAT PROTION OF THE SUBSOIL AND
SEABED OF THE CONTINENTAL SHELF LYING SEAWARD AND OUTSIDE OF (THE
MARGINAL SEA), ALL OF WHICH NATURAL RESOURCES APPERTAIN TO THE UNITED
STATES, AND THE JURISDICITON AND CONTROL OF WHICH BY THE UNITED STATED
IS CONFIRMED."  43 U.S.C. 1302  

THIS DECLARATION BY CONGRESS IS SQUARELY AT ODDS WITH THE ASSERTIONS
OF THE STATES IN THE PRESENT CASE.  SO, TOO, IS THE PROVISION OF THE
ACT BY WHICH THE GRANT TO THE STATES IS EXPRESSLY LIMITED TO THE SEABED
WITHIN THREE MILES (OR THREE MARINE LEAGUES IN SOME CASES) OF THE
COASTLINE, WHETHER OR NOT THE STATES' HISTORIC BOUNDARIES MIGHT EXTEND
FARTHER INTO THE OCEAN.  1301 (B).  MOREOVER, IN THE COURSE OF
LITIGATION DEALING WITH THE REACH AND IMPACT OF THE ACT, THE COURT HAS
SAID AS PLAINLY AS MAY BE THAT "THE ACT CONCEDEDLY DID NOT IMPAIR THE
VALIDITY OF THE CALIFORNIA, LOUISIANA, AND TEXAS CASES, WHICH ARE
ADMITTEDLY APPLICABLE TO ALL COASTAL STATES...."  UNITED STATES V.
LOUISIANA, 363 U.S. 1, 7 (1960); SEE ALSO ID., AT 83 N. 140.  WE AGREE
WITH THE SPECIAL MASTER WHEN HE SAID: "IT IS QUITE OBVIOUS THAT
CONGRESS COULD RESERVE TO THE FEDERAL GOVERNMENT ALL THE RIGHTS TO THE
SEABED OF THE CONTINENTAL SHELF BEYOND THE THREE-MILE TERRITORIAL BELT
OF SEA (OR THREE LEAGUES IN THE CASE OF CERTAIN GULF STATES) ONLY UPON
THE BASIS THAT IT ALREADY HAD THE PARAMOUNT RIGHT TO THAT SEABEDUNDER
THE RULE LAID DOWN IN THE CALIFORNIA CASE."  REPORT 19. 

CONGRESS EMPHATICALLY IMPLEMENTED ITS VIEW THAT THE UNITED STATES
HAS PARAMOUNT RIGHTS TO THE SEABED BEYOND THE THREE-MILE LIMIT WHEN A
FEW MONTHS LATER IT ENACTED THE OUTER CONTINENTAL SHELF LANDS ACT OF
1953, 67 STAT. 462, 43 U.S.C. 1331 ET SEQ. SECTION 3 OF THE ACT 

"DECLARED (IT) TO BE THE POLICY OF THE UNITED STATES THAT THE
SUBSOIL AND SEABED OF THE OUTER CONTINENTAL SHELF APPERTAIN TO THE
UNITED STATES AND ARE SUBJECT TO ITS JURISDICITON, OCNTROL, AND POWER
OF DISPOSITION AS PROVIDED IN THIS SUBCHAPTER."  43 U.S.C. 1332 (A). 
THE ACT THEN PROCEEDS TO SET OUT DETAILED PROVISIONS FOR THE EXERCISE
OF EXCLUSIVE JURISDICTION IN THE AREA AND FOR THE LEASING AND
DEVELOPMENT OF THE RESOURCES OF THE SEABED. 

OF COURSE, THE DEFENDANT STATES WERE NOT PARTIES TO UNITED STATES V.
CALIFORNIA OR TO THE RELEVATN DECISIONS, AND THEY ARE NOT PRECLUDED BY
RES JUDICATA FROM LITIGATING THE ISSUES DECIDED BY THOSE CASES.  BUT
THE DOCTRINE OF STARE DECISIS IS STILL A POWERFUL FORCE IN OUR JURIS
PRUDENCE; AND ALTHOUGH ON OCCASION THE COURT HAS DECLARED--AND ACTED
ACCORDINGLY--THAT CONSTITUTIONAL DECISIONS ARE OPEN TO RE-EXAMINATION,
WE ARE CONVINCED THAT THE DOCTRINE HAS PECULIAR FORCE AND RELEVANCE IN
THE PRESENT CONTEXT.  IT IS APPARENT THAT IN THE ALMOST 30 YEARS SINCE
CALIFORNIA, A GREAT DEAL OF PUBLIC AND PRIVATE BUSINESS HAS BEEN
TRANSACTED IN ACCORDANCE WITH THOSE DECISIONS AND IN ACCORDANCE WITH
MAJOR LEGISLATION ENACTED BY CONGRESS, A PRINCIPAL PURPOSE OF WHICH WAS
TO RESOLVE THE "INTERMINABLE LITIGATION" ARISING OVER THE CONTROVERSY
OF THE OWNERSHIP OF THE LANDS UNDERLYING THE MARGINAL SEA.  SEE H.R.
REP. NO. 215, 83D CONG., 1ST SESS., 2 (1953).  BOTH THE SUBMERGED LANDS
ACT AND THE OUTER CONTINENTAL SHELF LANDS ACT WHICH SOON FOLLOWED
PROCEEDED FROM THE PREMISES ESTABLISHED BY PRIOR COURT DECISIONS AND
PROVIDED FOR THE ORDERLY DEVELOPMENT OF OFFSHORE RESOURCES.  SINCE
1953, WHEN THIS LEGISLATION WAS ENACTED, 33 LEASE SALES HAVE BEEN HELD,
IN WHICH 1,940 LEASES, EMBRACING OVER EIGHT MILLION ACRES, HAVE BEEN
ISSUED.  THE OUTER CONTINENTAL SHELF, SINCE 1953, HAS YIELDED OVER
THREE BILLION BARRELS OF OIL, 19 TRILLION M.C.F. OF NATURAL GAS, 13
MILLION LONG TONS OF SULFUR, AND OVER FOUR MILLION LONG TONS OF SALT. 
/6/ IN 1973 ALONE, 1,081,000 BARRELS OF OIL AND 8.9 BILLION CUBIC FEET
OF NATURAL GAS WERE EXTRACTED DAILY FROM THE OUTER CONTINENTAL SHELF. 
/7/  EXPLOITATION OF OUR RESOURCES OFFSHORE IMPLICATES A BROAD RANGE OF
FEDERAL LEGISLATION, RANGING FROM THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT, INCORPORATED INTO THE OUTER CONTINENTAL
SHELF LANDS ACT, TO THE MORE RECENT COASTAL ZONE MANAGEMENT ACT.  /8/
WE ARE QUITE SURE THAT IT WOULD BE INAPPROPRIATE TO DISTRUB OUR PRIOR
CASES, MAJOR LEGISLATION, AND MANY YEARS OF COMMERCIAL ACTIVITY /9/ BY
CALLING INTO QUESTION, AT THIS DATE, THE CONSTITUTIONAL PREMISE OF
PRIOR DECISIONS.  WE ADD ONLY THAT THE ATLANTIC STATES, BY VIRTUE OF
THE CALIFORNIA, LOUISIANA, AND TEXAS CASES, AS WELL AS BY REASON OF THE
SUBMERGED LANDS ACT, HAVE BEEN ON NOTICE OF THE SUBSTANTIAL BODY OF
AUTHORITATIVE LAW, BOTH CONSTITUTIONAL AND STATUTORY, WHICH IS SQUARELY
AT ODDS WITH THEIR CLAIMS TO THE SEABED BEYOND THE THREE-MILE MARGINAL
SEA.  NEITHER THE STATES NOR THEIR PUTATIVE LESSEES HAVE BEEN IN THE
SLIGHTEST MISLED.  JUDGMENT SHALL BE ENTERED FOR THE UNITED STATES. 

                                  SO ORDERED. 

/1/ THE STATE OF CONNECTICUT WAS NOT MADE A DEFENDANT, APPARENTLY
BECAUSE THAT STATE BORDERS ON LONG ISLAND SOUND, WHICH IS CONSIDERED
INLAND WATER RATHER THAN OPEN SEA. 

/2/ THE UNITED STATES ALSO DEMANDED AN ACCOUNTING FOR ALL SUMS THAT
THE STATES MAY HAVE DERIVED FROM THE AREA IN QUESTION.  THIS CLAIM THE
SPECIAL MASTER RECOMMENDS BE DENIED FOR FAILURE OF PROOF.  THE UNITED
STATES DOES NOT EXCEPT TO THIS RECOMMENDATION, AND WE APPROVE IT. 

/3/ THE STATE FO FLORIDA CLAIMED THAT BY VIRTUE OF THE ACT OF JUNE
25, 1868, 15 STAT. 73, CONGRESS HAD APPROVED THE MARITIME BOUNDARIES
FOR THAT STATE WHICH AT CERTAIN PLACES INCLUDED MORE THAN THREE MILES
OF THE ATLANTIC OCEAN AND HAD THEREBY GRANTED TO THE STATE ALL OF THE
SEABED WITHIN THOSE BOUNDARIES.  FLORIDA ALSO CLAIMED IN ITS ANSWER
THAT THE FLORIDA STRAITS WERE NOT IN THE ATLANTIC OCEAN AS CLAIMED BY
THE UNITED STATES BUT IN THE GULF OF MEXICO.  SUBSEQUENTLY, THE
CONTROVERSY BETWEEN THE UNITED STATES AND FLORIDA WAS SEVERED AND
CONSOLIDATED WITH THE PRECEEDING IN NO. 9, ORIGINAL, WHICH WAS THEN
CONCERNED WITH THE SEABED RIGHTS OF THE STATE OF FLORIDA IN THE GULF OF
MEXICO, 403 U.S. 949, 950 (1971).  THE CONSOLIDATED PROCEEDINGS WERE
GIVEN A NEW NUMBER--NO. 52, ORIGINAL.  WE HAVE ACTED ON THE SPECIAL
MASTER'S REPORT IN THAT CASE.  SEE POST, P. 531. 

/4/ THE STATES OF THODE ISLAND, NORTH CAROLINA, AND GEORGIA EACH
SUBMITTED AN ADDITIONAL SPECIAL DEFENSE APPLICABLE ONLY TO ITSELF.  WE
AGREE WITH THE SPECIAL MASTER'S REJECTION OF THESE SPECIAL DEFENSES,
AND THEY WILL NOT BE MENTIONED FURTHER. 

/5/ THE SUBMERGED LANDS ACT WAS HELD CONSTITUTIONAL IN ALABAMA V.
TEXAS, 347 U.S. 272 (1954). 

/6/ S. REP. NO. 93 - 1140, P. 4 (1974). 

/7/ ID., AT 5. 

/8/ 86 STAT. 1280, 16 U.S.C. 1451 ET SEQ. (1970 ED., SUPP. II).  FOR
A SUMMARY OF LEGISLATION AFFECTING THE OUTER CONTINENTAL SHELF, SEE
OUTER CONTINENTAL SHELF OIL AND GAS DEVELOPMENT AND THE COASTAL ZONE,
SENATE COMMITTEE ON COMMERCE 93D CONG., 2D SESS., 55 - 58 (COMM. PRINT
1974). 

/9/ WE HAVE LONG HELD THAT THE DOCTRINE OF STARE DECISIS CARRIES
PARTICULAR FORCE WHERE THE EFFECT OF RE-EXAMINATION OF A PRIOR RULE
WOULD BE TO OVERTURN LONG-ACCEPTED COMMERCIAL PRACTICE.  SEE, E. G., M'
GRUDER V. BANK OF WASHINGTON, 9 WHEAT.  598, 602 (1824); ROCK SPRING
DISTILLING CO. V. W.A. GAINES & CO., 246 U.S. 312, 320 (1918). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL JOHNSON, DEPUTY
SOLICITOR GENERAL WALLACE, KEITH A. JONES, ADN BRUCE C. RASHKOW. 

BRICE M. CLAGETT ARGUED THE CAUSE FOR DEFENDANTS.  WITH HIM ON THE
BRIEFS FOR THE COMMON COUNSEL STATES WERE MICHAEL BOUDIN, W. LAIRD
STABLER, JR., ATTORNEY GENERAL, AND CHARLES BRANDT, ASSISTANT ATTORNEY
GENERAL OF DELAWARE, JON A. LUND, ATTORNEY GENERAL, AND LEE M. SCHEPPS,
ASSISTANT ATTORNEY GENERAL OF MAINE, FRANCIS B. BURCH, ATTORNEY
GENERAL, AND HENERY R. LORD, DEPUTY ATTORNEY GENERAL OF MARYLAND,
ROBERT H. QUINN, FORMER ATTORNEY GENERAL, FRANCIS X. BELLOTTI, ATTORNEY
GENERAL, AND HENRY HERRMANN, SPECIAL ASSISTANT ATTORNEY GENERAL OF
MASSACHUSETTS, WARREN B. RUDMAN, ATTORNEY GENERAL, AND DAVID H. SOUTER,
DEPUTY ATTORNEY GENERAL OF NEW HAMPSHIRE, WILLIAM F. HYLAND, ATTORNEY
GENERAL, AND ELIAS ABELSON, ASSISTANT ATTORNEY GENERAL OF NEW JERSEY,
LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, AND JOSEPH T. HOPKINS, ASSISTANT
ATTORNEY GENERAL OF NEW YORK, RICHARD J. ISRAEL, ATTORNEY GENERAL, AND
W. SLATER ALLEN, JR., ASSISTANT ATTORNEY GENERAL OF RHODE ISLAND,
ANDREW P. MILLER, ATTORNEY GENERAL, AND GERALD L. BALILES, DEPUTY
ATTORNEY GENERAL OF VIRGINIA.  ON THE BRIEF FOR DEFENDANTS THE STATES
OF NORTH CAROLINA ET AL. WERE RUFUS EDMISTEN, ATTORNEY GENERAL, AND
JEAN A. BENOY, DEPUTY ATTORNEY GENERAL OF NORTH CAROLINA, DANIEL R. MC
LEOD, ATTORNEY GENERAL, AND EDWARD B. LATIMER, ASSISTANT ATTORNEY
GENERAL OF SOUTH CAROLINA, AND ARTHUR K. BOLTON, ATTORNEY GENERAL, AND
ALFRED L. EVANS, JR., ASSISTANT ATTORNEY GENERAL OF GEORGIA. 

BRIEFS OF AMICI CURIAE WERE FILED BY WILLIAM J. GUSTE, JR., ATTORNEY
GENERAL OF LOUISIANA, NORMAN C. GORSUCH, ATTORNEY GENERAL OF ALASKA,
SLADE GORTON, ATTORNEY GENERAL OF WASHINGTON, JOHN L. HILL, ATTORNEY
GENERAL OF TEXAS, DANIEL R. MC LOED, ATTORNEY GENERAL OF SOUTH
CAROLINA, ANDREW P. MILLER, ATTORNEY GENERAL OF VIRGINIA, ROBERT H.
QUINN, FORMER ATTORNEY GENERAL OF MASSACHUSETTS, AND EVELLE J. YOUNGER,
ATTORNEY GENERAL OF CALIFORNIA; AND BY FREDERICK MORING FOR THE
ASSOCIATED GAS DISTRIBUTORS. 
..END :
















UNITED STATES V. LOUISIANA, 420 U.S. 529 


       UNITED STATES V. LOUISIANA ET AL. (LOUISIANA BOUNDARY CASE)

        ON EXCEPTIONS TO REPORT OF SPECIAL MASTER

        NO. 9, ORIG.  ARGUED FEBRUARY 24, 1975--DECIDED MARCH 17,

           1975. 


    THE UNITED STATES' AND LOUISIANA'S EXCEPTIONS TO THE SPECIAL

  MASTER'S REPORT OVERRULED, HIS RECOMMENDATIONS ACCEPTED, AND THE

  PARTIES DIRECTED TO PREPARE AND FILE A DECREE FOR ENTRY BY THIS

  COURT, ESTABLISHING A BASELINE ALONG LOUISIANA'S ENTIRE COAST

  FROM WHICH THE TERRITORIAL WATERS UNDER ITS JURISDICITON PURSUANT

  TO THE SUBMERGED LANDS ACT CAN BE MEASURED.  IF THE PARTIES

  CANNOT AGREE UPON THE DECREE'S FORM, THEY SHALL REFER TO THE

  SPECIAL MASTER ANY REMAINING DISPUTES FOR APPROPRIATE PROCEEDINGS

AND FURTHER RECOMMENDATIONS. 

PER CURIAM. 

UPON CONSIDERATION OF THE REPORT FILED JULY 31, 1974, BY WALTER P.
ARMSTRONG, JR., SPECIAL MASTER, OF THE EXCEPTIONS FILED THERETO BY THE
UNITE STATES AND BY THE STATE OF LOUISIANA, AND AFTER ORAL ARGUMENT
THEREON, IT IS NOW ORDERED, ADJUDGED, AND DECREED AS FOLLOWS: 

1.  THE EXCEPTIONS FILED BY THE UNITED STATES TO THE REPORT AND
RECOMMENDATIONS OF THE SPECIAL MASTER ARE OVERRULED. 

2.  THE EXCEPTIONS FILED BY THE STATE OF LOUISIANA TO THE REPORT AND
RECOMMENDATIONS OF THE SPECIAL MASTER ARE OVERRULED. 

3.  THE RECOMMENDATIONS CONTAINED IN THE REPORT OF THE SPECIAL
MASTER ARE ACCEPTED. 

4.  THE PARTIES ARE DIRECTED TO PREPARE AND FILE A DECREE, FOR ENTRY
BY THIS COURT, ESTABLISHING "A BASELINE ALONG THE ENTIRE COAST OF THE
STATE OF LOUISIANA FROM WHICH THE EXTENT OF THE TERRITORIAL WATERS
UNDER THE JURISDICITON OF THE STATE OF LOUISIANA PURSUANT TO THE
SUBMERGED LANDS ACT CAN BE MEASURED."  REPORT OF THE SPECIAL MASTER
53.  IF THE PARTIES CANNOT AGREE UPON THE FORM OF THE DECREE, THEN THEY
SHALL REFER ANY REMAINING DISPUTES TO THE SPECIAL MASTER FOR HIS
RECOMMENDATIONS.  IN THE EVENT OF SUCH A REFERRAL, THE SPECIAL MASTER
IS AUTHORIZED TO HOLD SUCH HEARINGS, TAKE SUCH EVIDENCE AND CONDUCT
SUCH PROCEEDINGS AS HE MAY DEEM APPROPRIATE AND, IN DUE COURSE, TO
REPORT HIS RECOMMENDATIONS TO THIS COURT. 

     IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
JOHNSON, AND BRUCE C. RASHKOW. 

OLIVER P. STOCKWELL AND FREDERICK W. ELLIS, SPECIAL ASSISTANT
ATTORNEYS GENERAL OF LOUISIANA, ARGUED THE CAUSE FOR DEFENDANTS.  WITH
THEM ON THE BRIEF WERE WILLIAM J. GUSTE, JR., ATTORNEY GENERAL, AND
PAUL M. HEBERT, VICTOR A. SACHSE, AND WILLIAM E. SHADDOCK, SPECIAL
ASSISTANT ATTORNEYS GENERAL. 
..END :
























UNITED STATES V. FLORIDA, 420 U.S. 531 


       UNITED STATES V. FLORIDA

        ON EXCEPTIONS TO REPORT OF SPECIAL MASTER

        NO. 52, ORIG.  ARGUED FEBRUARY 25, 1975--DECIDED MARCH 17,

           1975 


    IN THIS CASE IN WHICH A DECREE IS SOUGHT DEFINING THE SEAWARD

  BOUNDARY OF THE SUBMERGED LANDS OF THE CONTINENTAL SHELF IN THE

  ATLANTIC OCEAN AND THE GULF OF MEXICO IN WHICH FLORIDA HAS RIGHTS

  TO NATURAL RESOURCES, FLORIDA'S EXCEPTIONS TO THE RECOMMENDATIONS

  OF THE SPECIAL MASTER ARE OVERRULED, BUT THE EXCEPTIONS OF THE

  UNITED STATES RAISE CONTENTIONS NOT PREVIOUSLY PRESENTED TO THE

  SPECIAL MASTER AND ARE THEREFORE REFERRED TO HIM FOR FURTHER

PROCEEDINGS. 

PER CURIAM. 

BEFORE THE COURT FOR CONSIDERATION ARE THE EXCEPTIONS OF THE STATE
OF FLORIDA AND OF THE UNITED STATES TO THE REPORT OF THE SPECIAL MASTER
FILED FEBRUARY 19, 1974.  ORAL ARGUMENT HAS BEEN HAD. 

THE CASE CONSOLIDATES TWO PROCEEDINGS.  IN THE FIRST, THE UNITED
STATES SEEKS A DECREE DEFINING THE SEAWARD BOUNDARY OF THE SUBMERGED
LANDS OF THE CONTINENTAL SHELF IN THE ATLANTIC OCEAN IN WHICH FLORIDA
HAS RIGHTS TO THE NATURAL RESOURCES.  395 U.S. 955 (1969).  IN THE
SECOND, THE STATE OF FLORIDA AND THE UNITED STATES SEEK A DECREE
DEFINING MORE SPECIFICALLY THAN DOES THE DECREE ENTERED IN UNITED
STATES V. LOUISIANA, 364 U.S. 502 (1960), THE SEAWARD BOUNDARY OF THE
SUBMERGED LANDS OF THE CONTINENTAL SHELF IN THE GULF OF MEXICO IN WHICH
FLORIDA HAS RIGHTS TO THE NATURAL RESOURCES.  403 U.S. 949 (1971). 

IN ITS EXCEPTIONS TO THE REPORT, THE STATE OF FLORIDA MAINTAINS THAT
IN HIS RECOMMENDATIONS THE J SPECIAL MASTER SHOULD HAVE RECOGNIZED THAT
THE SAID BOUNDARIES EXTEND TO THE BOUNDARIES DEFINED IN THE STATE'S
1868 CONSTITUTION, RATHER THAN TO THE LIMITS SPECIFIED IN THE SUBMERGED
LANDS ACT OF 1953, 2(B), 67 STAT. 29, 43 U.S.C. 1301 (B); THAT THE
SPECIAL MASTER SHOULD HAVE RECOGNIZED THAT THE FLORIDA KEYS AND THE
STRAITS OF FLORIDA SOUTHWEST OF LONGITUDE 25 DEGREES 40' N. ARE PART OF
THE GULF OF MEXICO, RATHER THAN OF THE ATLANTIC OCEAN; THAT THE SPECIAL
MASTER ERRED IN CONSTRUING THE 1868 CONSTITUTION OF THE STATE AS TO ITS
ATLANTIC OCEAN BOUNDARY AND AS TO ITS BOUNDARY BETWEEN THE DRY TORTUGAS
ISLANDS AND CAPE ROMANO; AND THAT THE SPECIAL MASTER ERRED IN FAILING
TO RECOGNIZE " FLORIDA BAY" AS A HISTORIC BAY AND THUS AS INLAND WATERS
OF THE STATE. 

HAVING CONSIDERED EACH OF THESE EXCEPTIONS, WE CONCLUDE THAT THEY
ARE CORRECTLY ANSWERED IN THE REPORT OF THE SPECIAL MASTER.  THE
EXCEPTIONS OF THE STATE OF FLORIDA ARE THEREFORE OVERRULED. 

IN ITS EXCEPTIONS TO THE REPORT, THE UNITED STATES MAINTAINS THAT
THE SPECIAL MASTER ERRED IN RECOMMENDING THE RECOGNITION OF A PORTION
OF FLORIDA BAY AS A "JURIDICAL" BAY, AND IN RECOMMENDING THE DRAWING OF
"CLOSING LINES" AROUND THREE GROUPS OF ISLANDS THAT MAKE UP THE FLORIDA
KEYS.  IT APPEARS THAT THESE RECOMMENDATIOSN OF THE SPECIAL MASTER WERE
MADE WITHOUT BENEFIT OF THE CONTENTIONS NOW ADVANCED BY THE UNITED
STATES AND THE OPPOSING CONTENTIONS NOW PRESENTED BY THE STATE OF
FLORIDA.  THE EXCEPTIONS OF THE UNITED STATES ARE THEREFORE REFERRED TO
THE SPECIAL MASTER FOR HIS PROMPT CONSIDERATION.  HE IS AUTHORIZED TO
CONDUCT ANY SUPPLEMENTAL PROCEEDINGS HE MAY FIND USEFUL WITH RESPECT TO
THE EXCEPTIONS OF THE UNITED STATES AND IS REQUESTED TO FILE A
SUPPLEMENTAL REPORT RESTRICTED TO THE ISSUES RAISED IN THOSE
EXCEPTIONS. 

                                  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

KEITH A. JONES ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
JOHNSON, AND BRUCE C. RASHKOW. 

ROBERT L. SHEVIN, ATTORNEY GENERAL OF FLORIDA, ARGUED THE CAUSE FOR
DEFENDANT.  WITH HIM ON THE BRIEFS WERE W. ROBERT OLIVE, JR., SPECIAL
ASSISTANT ATTORNEY GENERAL, AND DANIEL S. DEARING. 

BRICE M. CLAGETT, MICHAEL BOUDIN, W. LAIRD STABLER, JR., ATTORNEY
GENERAL, AND JEROME O. HERLIHY, CHIEF DEPUTY ATTORNEY GENERAL OF
DELEWARE, ARTHUR K. BOLTON, ATTORNEY GENERAL, AND ALFRED L. EVANS, JR.,
ASSISTANT ATTORNEY GENERAL OF GEORGIA, JON A. LUND, ATTORNEY GENERAL,
AND LEE M. SCHEPPS, ASSISTANT ATTORNEY GENERAL OF MAINE, FRANCIS B.
BURCH, ATTORNEY GENERAL, AND HENERY R. LORD, DEPUTY ATTORNEY GENERAL OF
MARYLAND, ROBERT H. QUINN, FORMER ATTORNEY GENERAL, AND HENERY
HERRMANN, SPECIAL ASSISTANT ATTORNEY GENERAL OF MASSACHUSETTS, WARREN
B. RUDMAN, ATTORNEY GENERAL, AND DAVID H. SOUTER, DEPUTY ATTORNEY
GENERAL OF NEW HAMPSHIRE, WILLIAM F. HYLAND, ATTORNEY GENERAL, AND
ELIAS ABELSON, ASSISTANT ATTORNEY GENERAL OF NEW JERSEY, LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, AND JOSEPH T. HOPKINS, ASSISTANT ATTORNEY
GENERAL OF NEW YORK, ROBERT MORGAN, ATTORNEY GENERAL, AND JEAN A.
BENOY, DEPUTY ATTORNEY GENERAL OF NORTH CAROLINA, RICHARD J. ISRAEL,
ATTORNEY GENERAL, AND W. SLATER ALLEN, JR., ASSISTANT ATTORNEY GENERAL
OF RHODE ISLAND, DANIEL R. MC LEOD, ATTORNEY GENERAL, AND EDWARD B.
LATIMER, ASSISTANT ATTORNEY GENERAL OF SOUTH CAROLINA, ANDREW P.
MILLER, ATTORNEY GENERAL, AND GERALD L. BALILES, DEPUTY ATTORNEY
GENERAL OF VIRGINIA, FILED A BRIEF FOR THE STATE OF DELAWARE ET AL. AS
AMICI CURIAE. 
..END :










ESTELLE V. DORROUGH, 420 U.S. 534 


       ESTELLE, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS V.

           DORROUGH

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 74 - 479.  DECIDED MARCH 17, 1975;

        CERTIORARI GRANTED; 497 F. 2D 1007, REVERSED. 


    A TEXAS STATUTE PROVIDES FOR THE AUTOMATIC DISMISSAL OF AN

  APPEAL BY A FELONY DEFENDANT IF HE ESCAPES FROM CUSTODY PENDING

  THE APPEAL, EXCEPT THAT THE APPEAL WILL BE REINSTATED IF HE

  VOLUNTARILY SURRENDERS WITHIN 10 DAYS OF HIS ESCAPE, OR IF HE IS

  UNDER SENTENCE OF LIFE IMPRISONMENT OR DEATH THE APPELLATE COURT

  IN ITS DISCRETION MAY REINSTATE THE APPEAL IF HE RETURNS TO

  CUSTODY WITHIN 30 DAYS OF HIS ESCAPE.  HELD:  THE STATUTE DOES

  NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

  AMENDMENT. 

     (A) IT IS NOT RENDERED UNCONSTITUTIONAL BY ITS SEPARATE

  TREATMENT OF PRISONERS UNDER SENTENCE OF LIFE IMPRISONMENT OR

  DEATH.  TEXAS CAN REASONABLY BALANCE ITS CONCERN WITH DETERRING

  ESCAPES AND ENCOURAGING SURRENDERS WITH ITS ALTERNATIVE INTEREST

  IN ALLOWING THE VALIDITY OF PARTICULARLY SEVERE SENTENCES TO BE

  TESTED BY APPELLATE REVIEW. 

     (B) NOR IS THE STATUTE RENDERED UNCONSTITUTIONAL BY ITS

  LIMITING THE APPEAL-DISMISSAL REQUIREMENT TO THOSE PRISONERS WITH

  APPEALS PENDING AT THE TIME OF THEIR ESCAPE.  TEXAS, AS PART OF

  ITS POLICY TO DETER ESCAPES, IS FREE TO IMPOSE MORE SEVERE

  SANCTIONS ON THOSE PRISONERS WHOSE ESCAPE IS REASONABLY

  CALCULATED TO DISRUPT THE VERY APPELLATE PROCESS THAT THEY

  THEMSELVES HAVE SET IN MOTION, THAN IT DOES ON THOSE WHO FIRST

  ESCAPE, RETURN, AND THEN INVOKE THE APPELLATE PROCESS. 

PER CURIAM. 

RESPONDENT JERRY MACK DORRUGH WAS CONVICTED IN 1963 IN A TEXAS
DISTRIC COURT OF ROBBERY AND SENTENCED TO A TERM OF IMPRISONMENT FOR 25
YEARS.  AFTER HE WAS SENTENCED AND HAD FILED AN APPEAL TO THE TEXAS
COURT OF CRIMINAL APPEALS, HE ESCAPED FROM THE DALLAS COUNTY JAIL BY
STEALING A FEDERAL MAIL TRUCK.  HE WAS RECAPTURED TWO DAYS AFTER HIS
ESCAPE.  AFTER HIS RECAPTURE, THE TEXAS COURT OF CRIMINAL APPEALS
REMOVED HIS APPEAL FROM ITS DOCKET PURSUANT TO THE PROVISIONS OF TEXAS
CODE OF CRIMINAL PROCEDURE ANN. ART. 44.09 (1966), WHICH PROVIDES FOR
THE AUTOMATIC DISMISSAL OF SUCH PENDING APPEALS BY AN ESCAPED FELON
UPON ESCAPE WITH PROVISION FOR REINSTATEMENT OF THE APPEAL IF THE FELON
VOLUNTARILY SURRENDERS WITHIN 10 DAYS OF HIS ESCAPE.  /1/ 

AFTER RECAPTURE, RESPONDENT WAS TRIED AND CONVICTED ON FEDERAL
CHARGES AND GIVEN A 25-YEAR FEDERAL SENTENCE WHICH HE IS CURRENTLY
SERVING.  THE STATE OF TEXAS HAS FILED A DETAINER WARRANT WITH FEDERAL
AUTHORITIES AGAINST DORROUGH IN ORDER TO COMPEL HIM TO SERVE THE
REMAINDER OF HIS STATE SENTENCE UPON RELEASE FROM FEDERAL CUSTODY.  IN
1972, RESPONDENT FILED IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS A COMPLAINT WHICH WAS TREATED BY THAT COURT
AS A PETITION FOR WRIT OF HABEAS CORPUS, ALLEGING THAT THE 1963
DISMISSAL OF HIS APPEAL UNDER ART. 44.09 DENIED HIM EQUAL PROTECTION OF
THE LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  /2/  THE UNITED
STATES DISTRICT COURT DENIED RELIEF, HOLDING THAT ART. 44.09 WAS A
RATIONAL EXERCISE OF LEGISLATIVE POWER.  /3/ THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT REVERSED.  IT HELD THAT ART. 44.09 DENIED
RESPONDENT EQUAL PROTECTION OF THE LAW, AND ORDERED TAHT THE STATE'S
DETAINER WARRANT WOULD BE VOIDED UNLESS TEXAS PROVIDED RESPONDENT WITH
EITHER A DIRECT APPEAL OR A NEW TRIAL.  /4/ PETITIONER HAS NOW SOUGHT
REVIEW BY CERTIORARI PURSUANT TO 28 U.S.C. 1254 (1) OF THE JUDGMENT OF
THE COURT OF APPEALS.  FOR THE REASONS STATED, WE GRANT THE WRIT AND
REVERSE THE JUDGMENT. 

THE COURT OF APPEALS CORRECTLY RECOGNIZED THAT THERE IS NO FEDERAL
CONSTITUTIONAL RIGHT TO STATE APPELLATE REVIEW OF STATE CRIMINAL
CONVICTIONS.  MC KANE V. DURSTON, 153 U.S. 684, 687 (1894); GRIFFIN V.
ILLINOIS, 351 U.S. 12, 18 (1956); ROSS V. MOFFITT, 417 U.S. 600, 610 -
611 (1974).  DISPOSITION BY DISMISSAL OF PENDING APPEALS OF ESCAPED
PRISONERS IS A LONGSTANDING AND ESTABLISHED PRINCIPLE OF AMERICAN LAW. 
1, GEO. WASH. L. REV. 427, 429 (1950).  THIS COURT ITSELF HAS LONG
FOLLOWED THE PRACTICE OF DECLINING TO REVIEW THE CONVICTIONS OF ESCAPED
CRIMINAL DEFENDANTS.  SMITH V. UNITED STATES, 94 U.S. 97 (1876);
BONAHAN V. NEBRASKA, 125 U.S. 692 (1887); EISLER V. UNITED STATES, 338
U.S. 189 (1949); ID., AT 883; CF. ALLEN V. ROSE, 419 U.S. 1080 (1974). 
THUS IN MOLINARO V. NEW JERSEY, 396 U.S. 365 (1970), WE DISMISSED THE
APPEAL OF AN ESCAPED CRIMINAL DEFENDANT, STATING THAT NO PERSUASIVE
REASON EXISTS TO ADJUDICATE THE MERITS OF SUCH A CASE AND THAT AN
ESCAPE "DISENTITLES THE DEFENDANT TO CALL UPON THE RESOURCES OF THE
COURT FOR DETERMINATION OF HIS CLAIMS."  ID., AT 366.  IN ALLEN V.
GEORGIA, 166 U.S. 138 (1897), WE UPHELD AS AGAINST A CONSTITUTIONAL DUE
PROCESS ATTACK A STATE COURT'S DISMISSAL OF THE APPEAL OF AN ESCAPED
PRISONER AND ITS REFUSAL TO REINSTATE THE APPEAL UPON HIS LATER
RECAPTURE.  SEE ALSO NATIONAL UNION V. ARNOLD, 348 U.S. 37, 43 (1954). 

THE TEXAS COURTS HAVE FOUND SIMILAR ENDS SERVED BY ART 44.09.  IT
DISCOURAGES THE FELONY OF ESCAPE AND ENCOURAGES VOLUNTARY SURRENDERS. 
/5/ IT PROMOTES THE EFFICIENT, DIGNIFIED OPERATION OF THE TEXAS COURT
OF CRIMINAL APPEALS.  /6/ 

THE COURT OF APPEALS, HOWEVER, FOUND TWO CLASSIFICATIONS CREATED BY
THE STATUTE TO LACK ANY RATIONAL RELATION TO ITS PURPOSES AND HENCE
CONCLUDED THAT THE STATUTE WAS UNCONSTITUTIONAL AS VIOLATIVE OF THE
EQUAL PROTECTION THAT COURT RECOGNIZED THAT APPEALS FROM STATE CRIMINAL
CONVICTIONS ARE NOT "EXPLICITLY OR IMPLICITLY GUARANTEED BY THE
CONSTUTITION," SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ,
411 U.S. 1, 33 - 34 (1973), AND THAT THIS COURT IN DEALING WITH EQUAL
PROTECTION CHALLENGES TO STATE REGULATION OF THE RIGHT OF APPEAL IN
CRIMINAL CASES HAD APPLIED THE TRADITIONAL RATIONAL-BASIS TEST. 
RINALDI V. YEAGER, 384 U.S. 305 (1966).  THERE THIS COURT SAID: 

"' THE CONSTITUTION DOES NOT REQURE THINGS WHICH ARE DIFFERENT IN
FACT ... TO BE TREATED IN LAW AS THOUGH THEY WERE THE SAME.'  TIGNER V.
TEXAS, 310 U.S. 141, 147.  HENCE, LEGISLATION MAY IMPOSE SPECIAL
BURDENS UPON DEFINED CLASSES IN ORDER TO ACHIEVE PERMISSIBLE ENDS.  BUT
THE EQUAL PROTECTION CLAUSE DOES REQUIRE THT, IN DEFINING A CLASS
SUBJECT TO LEGISLATION, THE DISTINCTIONS THAT ARE DRAWN HAVE 'SOME
RELEVANCE TO THE PURPOSE FOR WHICH THE CLASSIFICATION IS MADE.' 
BAXSTROM V. HEROLD, 383 U.S. 107, 111; CARRINGTON V. RASH, 380 U.S. 89,
93; LOUISVILLE GAS CO. V. COLEMAN, 277 U.S. 32, 37; ROYSTER GUANO CO.
V. VIRGINIA, 253 U.S. 412, 415."  ID., AT 309. 

THE COURT OF APPEALS THOUGHT THAT THIS TEST RENDERED THE STATUTE
INVALID FOR TWO REASONS.  FIRST, WHILE THE STATUTE PROVIDES FOR
REINSTATEMENT OF THE APPEAL OF MOST ESCAPED FELSON ONLY IF THEY
VOLUNTARILY SURRENDER WITHIN 10 DAYS, THE TEXAS COURT OF CRIMINAL
APPEALS MAY IN ITS DISCRETION REINSTATE THE APPEALS OF PRISONERS UNDER
A SENTENCE OF LIFE IMPRISONMENT OR DEATH IF THEY ARE RETURNED TO
CUSTODY WITHIN 30 DAYS.  /8/ SECOND, THE STATUTE APPLIES ONLY TO THOSE
PRISONERS WITH APPEALS PENDING AT THE TIME OF THEIR ESCAPE; PRISONERS
WHO HAVE NOT INVOKED THE APPELLATE PROCESS BY FILING AN APPEAL AT THE
TIME OF THEIR ESCAPE MAY STILL APPEAL AFTER RECAPTURE IF APPLICABLE
APPELLATE TIME LIMITS HAVE NOT RUN.  WE DISAGREE WITH THE ANALYSIS OF
THE COURT OF APPEALS, AND FIND THAT NEITHER OF THESE DISTINCTIONS
OFFENDS THE EQUAL PROTECTION CLAUSE. 

INSOFAR AS THE SEPARATE TREATMENT OF PRISONERS UNDER A SENTENCE OF
LIFE IMPRISONMENT OR DEATH IS CONCERNED, WE SEE NO REASON WHY THE TEXAS
LEGISLATURE WAS NOT FREE TO SEPARATE OUT THESE TWO MOST SEVERE
SENTENCES FROM OTHER TERMS OF IMPRISONMENT, AND PROVIDE AND ADDITIONAL
PERIOD OF DISCRETIONARY REVIEW FOR THEM BUT NOT FOR THE REMAINDER.  THE
COURT OF APPEALS DETERMINED THAT UNDER TEXAS LAW A PRISONER SERVING A
SENTENCE FOR A TERM GREATER THAN 60 YEARS WOULD NOT BE ELIGIBLE FOR
PAROLE ANY SOONER THAN A PRISONER UNDER LIFE SENTENCE, AND FROM THAT
FACT CONCLUDED THAT THERE COULD BE NO RATIONAL DISTINCTION BETWEEN
THOSE SERVING A LIFE TERM AND THOSE SERVING A TERM IN EXCESS OF SIXTY
YEARS.  497 F. 2D 1007, 1012 - 1013.  IT IS NOT ALTOGETHER CLEAR HOW
RESPONDENT, WHO HIMSELF HAS BEEN SENTENCED TO 25 YEARS, COULD ASSERT
THE RIGHTS OF THOSE UNDER TERM SENTENCES OF 60 YEARS OR MORE.  /9/ BUT
APART FROM THIS DIFFICULTY, WE SEE NO REASON WHY THE TEXAS LEGISLATURE
COULD NOT FOCUS ON THE ACTUAL SEVERITY OF THE SENTENCE IMPOSED IN
MAKING DISTINCTIONS, RATHER THAN ON THE COLLATERAL CONSEQUENCE OF
SENTENCE ELABORATED BY THE COURT OF APPEALS.  THE STATE OF TEXAS COULD
REASONABLY BALANCE ITS CONCERN WITH DETERRING ESCAPES AND INCOURAGING
SURRENDERS WITH ITS ALTERNATIVE INTEREST IN ALLOWING THE VALIDITY OF
PARTICULARLY SEVERE SENTENCES TO BE TESTED BY APPELLATE REVIEW.  IN
DOING SO, IT WAS NOT REQUIRED TO DRAW LINES WITH "MATHEMATICAL
NICETY."  LINDSLEY V. NATIONAL CARBONIC GAS CO., 220 U.S. 61, 78 - 79
(1911); MOREY V. DOUD, 354 U.S. 457, 463 - 464 (1957). 

NOR DO WE FIND THE STATUTORY LIMITATION OF THE DISMISSAL REQUIREMENT
TO THOSE PRISONERS WITH APPEALS PENDING AT THE TIME OF THEIR ESCAPE
VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.  THE COURT OF APPEALS FELT
THAT THE STATUTE WAS "UNDERINCLUSIVE" FOR THIS REASON, SINCE A PRISONER
WHO HAD NOT INVOKED THE APPELLATE PROCESS BY FILING AN APPEAL AT THE
TIME OF HIS ESCAPE MIGHT STILL APPEAL AFTER RECAPTURE IF THE PRESCRIBED
TIME FOR FILING AN APPEAL HAD NOT EXPIRED. 

CRIMINAL DEFENDANTS IN TEXAS ARE SUBJECT TO RELATIVELY STRINGENT
TIME LIMITS FOR FILING THEIR APPEALS.  /10/  SINCE AN ESCAPED DEFENDANT
CANNOT COMPLY WITH THE REQUIRED APPELLATE STEPS DURING THE TIME HE IS
NOT CONFINED, THESE TIME LIMITS SERVE MUCH THE SAME FUNCTION AS ART.
44.09.  WHATEVER DIFFERENCE IN TREATMENT EXISTS BETWEEN THE CLASS OF
PRISONERS WHO ESCAPE, RETURN, AND ARE NONETHELESS ABLE TO FILE AN
APPEAL, AND THOSE WHOSE APPEALS ARE DISMISSED PURUSANT TO ART. 44.09,
IS SUFFICIENTLY RATIONAL TO WITHSTAND A CHALLENGE BASED ON THE EQUAL
PROTECTION CLAUSE.  TEXAS WAS FREE TO DEAL MORE SEVERELY WITH THOSE WHO
SIMULTANEOUSLY INVOKED THE APPELLATE PROCESS AND ESCAPED FROM ITS
CUSTODY THAN WITH THOSE WHO FIRST ESCAPED FROM ITS CUSTODY, RETURNED,
AND THEN INVOKED THE APPELLATE PROCESS WITHIN THE TIME PERMITTED BY
LAW.  WHILE EACH CLASS OF PRISONERS SOUGHT TO ESCAPE, THE FIRST DID SO
IN THE VERY MIDST OF THEIR INVOCATION OF THE APPELLATE PROCESS, WHILE
THE LATTER DID SO BEFORE RETURNING TO CUSTODY AND COMMENCING THAT
PROCESS.  IF TEXAS IS FREE TO ADOPT A POLICY WHICH DETERS ESCAPES BY
PRISONERS, AS ALL OF OUR CASES MAKE CLEAR THAT IT IS, IT IS LIKEWISE
FREE TO IMPOSE MORE SEVERE SANCTIONS ON THOSE WHOSE ESCAPE IS
REASONABLY CALCULATED TO DISRUPT THE VERY APPELLATE PROCESS WHICH THEY
THEMSELVES HAVE SET IN MOTION.  /11/  ROSS V. MOFFITT, 417 U.S., AT
610. 

THE MOTION OF RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND
THE WRIT OF CERTIORARI ARE GRANTED, AND THE JUDGMENT OF THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT IS

                                 REVERSED. 

/1/ TEXAS CODE OF CRIMINAL PROCEDURE ANN. ART. 44.09 PROVIDES: 

" IF THE DEFENDANT, PENDING AN APPEAL IN THE FELONY CASE, MAKES HIS
ESCAPE FROM CUSTODY, THE JURISDICITON OF THE COURT OF CRIMINAL APPEALS
SHALL NO LONGER ATTACH IN THE CASE.  UPON THE FACT OF SUCH ESCAPE BEING
MADE OT APPEAR, THE COURT SHALL, ON MOTION OF THE STATE'S ATTORNEY,
DISMISS THE APPEAL; BUT THE ORDER DISMISSING THE APPEAL SHALL BE SET
ASIDE IF IT IS MADE TO APPEAR THAT THE DEFENDANT HAS VOLUNTARILY
RETURNED WITHIN TEN DAYS TO THE CUSTODY OF THE OFFICER FROM WHOM HE
ESCAPED; AND IN CASES WHERE THE PUNISHMENT INFLICTED BY THE JURY IS
DEATH OR CONFINEMENT IN AN INSTITUTION OPERATED BY THE DEPARTMENT OF
CORRECTIONS FOR LIFE, THE COURT MAY IN ITS DISCRETION REINSTATE THE
APPEAL IF THE DEFENDANT IS RECAPTURED OR VOLUNTARILY SURRENDERS WITHIN
THIRTY DAYS AFTER SUCH ESCAPE."  THIS PROVISION WAS ADOPTED BY TEXAS IN
1879 REPLACING A SOMEWHAT SIMILAR COMMON-LAW RULE DISCUSSED IN EX PARTE
WOOD, 19 TEX. CT. APP. 46 (1885).  THE CLAUSE AUTHORIZING DISCRETIONARY
REINSTATEMENT OF AN APPEAL FROM A SENTENCE OF DEATH OR LIFE
IMPRISONMENT WAS ADDED BY AMENDMENT IN 1933.  LAWS 1933, C. 34.  SINCE
TEH STATUTE PROVIDES TAHT JURISDICITON SHALL "NO LONGER ATTACH" UPON
ESCAPE, THE ESCAPE ITSELF DIVESTS THE COURT OF JURISDICITON WITH LATER
DISMISSAL BEING A MERE FORMALITY.  LAFFERTY V. STATE, 123 TEX. CR. R.
570, 60 S.W. 2D 222 (1933); EXPARTE GURLEY, 104 TEX. CR. R. 578, 286
S.W. 222 (1926). 

/2/ BRADEN V. 30TH JUDICIAL CIRCUIT COURT OF KENTUCKY, 410 U.S. 484
(1973), INDICATES THAT ONE UNDER A STATE DETAINER WARRANT IS CONSIDERED
TO BE IN CUSTODY FOR THE PURPOSE OF FEDERAL HABEAS RELIEF.  THE
DISTRICT COURT CONCLUDED THAT RESPONDENT HAD PROPERLY EXHAUSTED HIS
STATE REMEDIES, AND THE PETITIONER DID NOT URGE FAILURE OF EXHAUSTION
IN THE COURT OF APPEALS. 

/3/ THE ONLY CONTENTION PRESENTED TO THE DISTRICT COURT AS EVIDENCED
BY ITS OPINION WAS TEH CONSTITUTIONALITY OF ART. 44.09 DISCUSSED
HEREIN.  RESPONDENT SEEKS HERE TO RAISE OTHER ISSUES NOT RAISED BELOW,
AT LEAST SOME OF WHICH WERE CONSIDERED AND REJECTED BY OTHER COURTS
DURING THE COURSE OF HIS FIVE PRIOR ACTIONS IN THE FEDERAL SYSTEM.  SEE
327 F.2D 667 (CA5 1964); 344 F.2D 125 (CA5 1965); 397 F.2D 811 (CA5),
CERT. DENIED, 394 U.S. 1019 (1969); 440 F.2D 1336 (CA5), CERT. DENIED,
404 U.S. 915 (1971); 440 F.2D 1063 (CA5), CERT. DENIED, 404 U.S. 840
(1971). 

/4/ THE DECISION OF THE DISTRICT COURT IS UNREPORTED.  THE DECISION
OF THE COURT OF APPEALS IS REPORTED AT 497 F.2D 1007. 

/5/ RODRIQUEZ V. STATE, 457 S.W. 2D 555, 556 (TEX. CRIM. APP.
1970). 

/6/ LOYD V. STATE, 19 TEX. CT. APP. 137, 155 (1885).  SEE ALSO 18
GEO. WASH. L. REV. 427, 430 (1950). 

/7/ 497 F.2D, AT 1012 - 1013.  THE COURT BELOW SPECIFICALLY REJECTED
THE NOTION THAT IMMEDIATE DISMISSAL WITH REFUSAL TO REINSTATE APPEALS
OF ESCAPED DEFENDANTS WAS CONSTITUTIONALLY OBJECTIONABLE AND RESTED ITS
DECISION WHOLLY ON THE ASSERTED LACK OF RATIONAL CONNECTION BETWEEN THE
STATUTORY CLASSIFICATIONS AND THE STATUTE'S PURPOSES. 

BUT OUR BROTHER STEWART RESURRECTS THIS REJECTED ARGUMENT AND ADOPTS
IT IN HIS DISSENT, SAYING THTA THE TEXAS STATUTE MAY NOT RATIONALLY BE
SAID TO DISCOURAGE THE FELONY OF ESCAPE AND ENCOURAGE VOLUNTARY
SURRENDER.  SUCH A JUDGMENT, OF COURSE, IS ONE IN THE FIRST INSTANCE
FOR THE LEGISLATURE, WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483
(1955), AND WE MAY STRIKE DOWN SUCH A LEGISLATIVE JUDGMENT ONLY IF WE
CONCLUDE THAT IT IS INDEED IRRATIONAL.  WE DO NOT BELIEVE THAT IT IS.
NOR IS IT ACCURATE TO SUGGEST THAT THE ONLY PURPOSE SERVED BY THE TEXAS
STATUTE IS THE DETERRENCE OF ESCAPES:  IT IS ALSO DESIGNED TO SECURE
THE STATE'S INTEREST IN ORDERLY JUDICIAL PROCEDURE.  THE RIGHT OF
APPEAL FROM A JUDGMENT OF CONVICTION IN BOTH THE FEDERAL AND STATE
SYSTEMS IS ALMOST UNIFORMLY CONDITIONED, FOR EXAMPLE, UPON THE FILING
OF A NOTICE OF APPEAL WITHIN A PRESCRIBED TIME LIMIT.  SEE FED. RULE
APP. PROC. 4 (B); N. 10, INFRA.  THE VINDICATION OF ORDERLY PROCEDURE
SECURED BY THE TEXAS STATUTE UNDER ATTACK HERE IS NO LESS A PERMISSIBLE
CHOICE FOR THE LEGISLATURE THAN IS THE VINDICATION OF THAT INTEREST BY
SUCH PROCEDURAL REQUIREMENTS.  IN A CASE INDISTINGUISHABLE FROM THE
PRESENT ONE ON THIS ISSUE, THIS COURT IN ALLEN V. GEORGIA, 166 U.S.
138, 141 (1897), UPHELD THE REFUSAL OF THE GEORGIA COURTS TO REINSTATE
THE APPEAL OF A RECAPTURED PRISONER, STATING THAT "IT SEEMS BUT A LIGHT
PUNISHMENT FOR SUCH OFFENCE TO HOLD" THAT HE HAS ABANDONED SUCH
APPEAL. 

/8/ SEE N. 1, SUPRA.  THE STATUTE MERELY ALLOWS THE COURT IN ITS
DISCRETION TO REINSTATE SUCH APPEALS.  IN THE PAST, THE COURT HAS BOTH
GRANTED LEAVE TO REINSTATE AND REFUSED IT UNDER A TEST OF "GOOD CAUSE
SHOWN."  BLAND V. STATE, 224 S.W. 2D 479 (TEX. CRIM. APP. 1949); FOSTER
V. STATE, 497 S.W. 2D 291 (TEX. CRIM. APP. 1973). 

/9/ CF. UNITED STATES V. RAINES, 362 U.S. 17, 21 - 24 (1960). 

/10/ SEE TEX. CODE OF CRIM. PROC. ANN. ARTS. 40.05, 40.09 (1966 ED.,
ADN SUPP. 1974 - 1975), 44.08 ET SEQ. FOR ECAMPLE, IN THE CASES CITED
BY THE LOWER COURT AS INVOLVING PREAPPEAL ESCAPES WITH SUBSEQUENT
APPEALS, THE APPELLANTS FORFEITED SUBSTANTIALLY ALL OF THEIR APPEAL
THROUGH FAILURE TO FILE A TIMELY RECORD OR ILL OF EXCEPTIONS.  WEBB V.
STATE, 460 S.W. 2D 903 (TEX. CRIM. APP. 1970); MC GEE V. STATE, 445 W.
2D 187 (TEX. CRIM. APP. 1969).  IN TEXAS THE TRIAL JUDGE HAS THE POWER
TO FILE THE RECORD WITH THE COURT OF CRIMNAL APPEALS AND IF HE DOES SO
PRIOR TO RECAPTURE OF AN ESCAPED PRISONER, THE APPEAL IS DISMISSED
UNDER ART. 44.09.  WEBB V. STATE, 449 S.W. 2D 230 (TEX. CRIM. APP.
1969); REDMAN V. STATE 449 S.W. 2D 256 (TEX. CRIM. APP. 1970); BALLAGE
V. STATE.  459 S.W. 2D 823 (TEX. CRIM. APP. 1970). 

/11/ THE PECULIAR PROBLEMS POSED BY ESCAPE OF A PRISONER DURING THE
ONGOING APPELLATE PROCESS WERE EXPLORED IN LOYD V. STATE, 19 TEX. CT.
APP. 137, IN THE COURSE OF UPHOLDING THE CONSTITUTIONALITY OF THIS
STATUTE: 

"(LET US SUPPOSE THAT THE CONVICT, PENDING HIS APPEAL, SHOULD ESCAPE
AND REMAIN AT LARGE TWENTY OR THIETY DAYS; WHAT DISPOSITION SHOULD BE
MADE OF HIS APPEAL?  ... SHOULD THIS COURT WAIT UNTIL HIS RETURN TO
CUSTODY?  HOW LONG MUST IT WAIT?  UNTIL IT SUITS THE PRISONER'S
CONVEIENCE?  ... (WE ARE OF THE OPINION THAT (ART. 44.09) IS NOT ONLY
REASONABLE BUT EMINENTLY WISE."  ID., AT 155.  SEE ALSO ALLEN V.
GEORGIA, 166 U.S. 141 (1897). 

MR. JUSTICE DOUGLAS, DISSENTING, AGREES WITH MUCH OF THE DISSENTING
OPINION OF MR. JUSTICE STEWART, BUT UNLIKE HIM, WOULD ALSO AFFIRM THE
JUDGMENT FOR THE REASONS STATED BY THE COURT OF APPEALS, 497 F. 2D
1007, 1012 - 1014 (CA5 1974). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

IF THE SHORTCOMINGS OF THE CHALLENGED TEXAS STATUTE WERE ONLY THOSE
ADDRESSED BY THE COURT, I COULD JOIN THE COURT'S OPINION.  FOR I AGREE
THAT ART. 44.09 IS NOT RENDERED UNCONSTITUTIONAL BY ITS MORE LENIENT
TREATMENT OF ESCAPED FELONS UNDER SENTENCE OF DEATH OR LIFE
IMPRISONMENT, NOR BY ITS ASSERTED "UNDERINCLUSIVE" INAPPLICABILITY TO A
FELON WHO ESCAPES AND IS RETURNED TO CUSTODY INVOLUNTARILY BEFORE HIS
APPEAL IS FILED.  BUT I THINK THE COURT HAS FAILED TO COME TO GRIPS
WITH THE REAL CONSTITUTIONAL MI//LT IN THE CHALLENGED STATUTE. 

IN SUMMARILY REVERSING THE JUDGMENT BEFORE US THE COURT RELIES UPON
DECISIONS ESTABLISHING THE LONG-SETTLED "PRACTICE OF DECLINING TO
REVIEW THE CONVICTIONS OF ESCAPED CRIMINAL DEFENDANTS."  ANTE, AT 537. 
SEE SMITH V. UNITED STATES, 94 U.S. 97 (1876); BONAHAN V. NEBRASKA, 125
U.S. 692 (1887); MOLINARO V. NEW JERSEY, 396 U.S. 138 (1897).  BUT
THESE DECISIONS HAVE UNIVERSALLY BEEN UNDERSTOOD TO MEAN ONLY THAT A
COURT MAY PROPERLY DISMISS AN APPEAL OF A FUGITIVE CONVICT WHEN, AND
BECAUSE, HE IS NOT WITHIN THE CUSTODY AND CONTROL OF THE COURT.  UNTIL
TODAY, THIS COURT HAS NEVER INTIMATED THAT UNDER THE RULE OF SMITH,
BONAHAN, AND MOLINARO A COURT MIGHT DISMISS AN APPEAL OF AN ESCAPED
CRIMNAL DEFENDANT AT A TIME WHEN HE HAS BEEN RETURNED TO CUSTODY, AND
THUS TO THE COURT'S POWER AND CONTROL 

THE RATIONALE FOR THE DISMISSAL OF AN APPEAL WHEN THE APPELLANT IS
AT LARGE IS CLEARLY STATED IN THE SMITH DECISION: 

    " IT IS CLEARLY WITHIN OUR DISCRETION TO REFUSE TO HEAR A

  CRIMINAL CASE IN ERROR, UNLESS THE CONVICTED PARTY, SUING OUT THE

  WRIT, IS WHERE HE CAN BE MADE TO RESPOND TO ANY JUDGMENT WE MAY

  RENDER.  IN THIS CASE IT IS ADMITTED THAT THE PLAINTIFF IN ERROR

  HAS ESCAPED, AND IS NOT WITHIN THE CONTROL OF THE COURT BELOW,

  EITHER ACTUALLY, BY BEING IN CUSTODY, OR CONSTRUCTIVELY, BY BEING

  OUT ON BAIL.  IF WE AFFIRM THE JUDGMENT, HE IS NOT LIKELY TO

  APPEAR TO SUBMIT TO HIS SENTENCE.  IF WE REVERSE IT AND ORDER A

 NEW TRIAL, HE WILL APPEAR OR NOT, AS HE MAY CONSIDER MOST FOR HIS

  INTEREST.  UNDER SUCH CIRCUNSTANCES, WE ARE NOT INCLINED TO HEAR

  AND DECIDE WHAT MAY PROVE TO BE ONLY A MOOT CASE."  94 U.S., AT

  97. 

SEE ALSO BONAHAN V. NEBRASKA, 125 U.S. 692. 

HERE, AS THE COURT NOTES, DORROUGH WAS RECAPTURED TWO DAYS AFTER HIS
FLIGHT.  AND, AS THE COURT ALSO NOTES, HIS APPEAL WAS DISMISSED AFTER
HIS RECAPTURE.  IN THIS SITUATION, THE RULE OF SMITH-BONAHAN-MOLINARO
PROVIDES NO SUPPORT WHATEVER FOR THE TEXAS LAW THAT DEPRIVED DORROUGH
OF HIS RIGHT TO APPEAL. 

IF THE CHALLENGED STATUTE CAN BE SUSTAINED, IT MUST REST UPON THE
ALTERNATIVE GROUND ADVANCED BY THE COURT--THAT, AS A PUNITIVE AND
DETERRENT MEASURE ENACTED IN THE EXERCISE OF THE STATE'S POLICE POWER,
IT "DISCOURAGES THE FELONY OF ESCAPE AND ENCOURAGES VOLUNTARY
SURRENDERS."  BUT THE STATUTE IMPOSES TOTALLY IRRATIONAL PUNISHMENTS
UPON THOSE SUBJECT TO ITS APPLICATION.  IF AN ESCAPED FELON HAS BEEN
CONVICTED IN VIOLATION OF LAW, THE LOSS OF HIS RIGHT TO APPEAL RESULTS
IN HIS SERVING A SENTENCE TAHT UNDER LAW WAS ERRONEOUSLY IMPOSED.  IF,
ON THE OTHER HAND, HIS TRIAL WAS FREE OF REVERSIBLE ERROR, THE LOSS OF
HIS RIGHT TO APPEAL RESULTS IN NO PUNISHMENT AT ALL.  AND THOSE WHOSE
CONVICTIONS WOULD HAVE BEEN REVERSED IF THEIR APPEALS HAD NOT BEEN
DISMISSED SERVE TOTALLY DISPARATE SENTENCES, DEPENDENT NOT UPON THE
CIRCUMSTANCES OF THEIR ESCAPE, BUT UPON WHATEVER SENTENCES MAY HAVE
BEEN METED OUT UNDER THEIR INVALID CONVICTIONS.  IN MY VIEW, THIS
RANDOM PATTERN OF PUNISHMENT CANNOT BE CONSIDERED A RATIONAL MEANS OF
ENFORCING THE STATE'S INTEREST IN DETERRING AND PUNISHING ESCAPES.  CF.
MC LAUGHLIN V. FLORIDA, 379 U.S. 184, 191 (1964); RINALDI V. YEAGER,
384 U.S. 305, 309 (1966); U.S. DEPT. OF AGRICULTURE V. MORENO, 413 U.S.
528, 538 (1973). 

A CLOSELY ANALOGOUS CASE WAS CONSIDERED BY THE SUPREME COURT OF
IDAHO IN IN RE MALLON, 16 IDAHO 737, 740 - 741, 102 P. 374 (1909). 
THERE THE COURT CONSIDERED A STATUTE PROVIDING: 

     "'... EVERY STATE PRISONER CONFINED IN THE STATE PRISON FOR A

  TERM LESS THAN FOR LIFE, WHO ESCAPES THEREFROM, IS PUNISHABLE BY

  IMPRISONMENT IN THE STATE PRISON FOR A TERM EQUAL IN LENGTH TO

  THE TERM HE WAS SERVING AT THE TIME OF SUCH ESCAPE; SAID SECOND

  TERM OF IMPRISONMENT TO COMMENCE FROM THE TIME HE WOULD OTHERWISE

  HAVE DISCHARGED FROM SAID PRISON.'" 

THE COURT CONCLUDED TAHT THE STATUTE AT ISSUE WAS UNCONSTITUTIONAL. 
SIMILARLY THE SUPREME COURT OF KANSAS IN STATE V. LEWIN, 53 KAN. 679,
37 P. 168 (1894), HELD UNCONSTITUTIONAL A STATUTE PROVIDING THAT UPON
ESCAPE A CONVICT WAS TO BE PUNISHED BY IMPOSITION OF THE FULL TERM OF
THE SENTENCE UNDER WIHCH HE HAD INITIALLY BEEN IMPRISONED, WITHOUT
CREDIT FOR ANY TIME SERVED BEFORE THE ESCAPE. 

UNDER THESE IDAHO AND KANSAS STATUTES, TWO MEN ESCAPING AT THE SAME
TIME AND IN THE SAME MANNER COULD RECEIVE WHOLLY DIFFERENT SENTENCES,
NOT RELATED AT ALL TO THE GRAVITY OF THE OFFENSE OF ESCAPE.  THAT IS
PRECISELY THE VICE OF THE TEXAS STATUTE AT ISSUE IN THE PRESENT CASE. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/ THE COURT IN MOLINARO V. NEW JERSEY, 396 U.S. 365 (1970), RELIED
UPON A NOTE, 18 GEO. WASH. L. REV. 427, 430 (1950), WHICH IS CITED IN
THE COURT'S OPINION TODAY.  ANTE, AT 537.  THE RULE AND ITS RATIONALE
ARE CORRECTLY STATED IN THAT NOTE:  "A REVIEW OF CRIMINAL APPEAL CASES
BOTH IN STATE AND FEDERAL COURTS SHOWS THAT WHEN AN APPELLANT HAS
ESCAPED FROMCUSTODY AND CANNOT BE BROUGHT BEFORE THE COURT, HIS CASE IS
NOT LEFT PENDINGINDEFINITELY.  IN THE ABSENCE OF ANY STATUTORY
REGULATION, DISMISSAL IS GRANTED IN SOME FORM.... THE BASIC THEORY
BEHIND ALL CRIMINAL CASES HAS ALWAYS BEEN THAT THERE MUST BE A
DEFENDANT IN THE POWER AND UNDER THE OCNTROL OF THE COURT, AND THAT
THERE BE SOMEONE WHO CAN RESPOND TO THE JUDGMENT."  18 GEO. WASH. L.
REV., AT 428 - 429. 
..END :












UNITED STATES V. LOUISIANA, 422 US 13 


       UNITED STATES V. LOUISIANA ET AL. LOUISIANA BOUNDARY CASE)

        NO. 9, ORIG.  DECIDED MARCH 16, 1975--DECREE ENTERED MARCH

           17, 1975--SUPPLEMENTAL DECREE ENTERED JUNE 16, 1975

        PER CURIAM AND DECREE REPORTED:  420 U.S. 529. 


THE JOINT MOTION FOR ENTRY OF SUPPLEMENTAL DECREE IS GRANTED. 

        SUPPLEMENTAL DECREE 

ON MARCH 17, 1975, THIS COURT OVERRULED THE EXCEPTIONS OF THE UNITED
STATES AND THE STATE OF LOUISIANA TO THE REPORT AND RECOMMENDATIONS OF
THE SPECIAL MASTER, ACCEPTED THE REPORT OF THE SPECIAL MASTER AND
DIRECTED THE PARTIES "TO PREPARE AND FILE A DECREE FOR ENTRY BY THIS
COURT, ESTABLISHING 'A BASELINE ALONG THE ENTIRE COAST OF THE STATE OF
LOUISIANA FROM WHICH THE EXTENT OF THE TERRITORIAL WATERS UNDER THE
JURISDICTION OF THE STATE OF LOUISIANA PURSUANT TO THE SUBMERGED LANDS
ACT CAN BE MEASURED.'"  420 U.S. 529.  THE PARTIES HAVE AGREED ON A
PROPOSED DECREE ESTABLISHING THE COASTLINE (BASELINE) OF LOUISIANA IN
ACCORDANCE WITH THE COURT'S DECISION OF MARCH 17, 1975.  THAT BASELINE
IS DESCRIBED IN EXHIBIT A BELOW.  ACCORDINGLY: 

IT IS ORDERED, ADJUDGED, AND DECREED: 

1.  AS AGAINST THE DEFENDANT STATE OF LOUISIANA AND ALL PERSONS
CLAIMING UNDER IT, THE UNITED STATES HAS EXCLUSIVE RIGHTS TO EXPLORE
THE AREA OF THE CONTINENTAL SHELF LYING MORE THAN THREE GEOGRAPHICAL
MILES SEAWARD OF THE LINE DESCRIBED IN EXHIBIT A HEREOF, AND TO EXPLOIT
THE NATURAL RESOURCES OF SAID AREA AND THE STATE OF LOUISIANA IS NOT
ENTITLED TO ANY INTEREST IN SUCH LANDS, MINERALS, AND RESOURCES, AND
SAID STATE, ITS PRIVIES, ASSIGNS, LESSEES, AND OTHER PERSONS CLAIMING
UNDER IT ARE HEREBY ENJOINED FROM INTERFERING WITH THE RIGHTS OF THE
UNITED STATES IN SUCH LANDS, MINERALS AND RESOURCES. 

2.  ALL SUMS NOW HELD IMPOUNDED BY THE UNITED STATES UNDER THE
INTERIM AGREEMENT OF OCTOBER 12, 1956, AS AMENDED, AND DERIVED FROM
LEASES OF LANDS LYING WHOLLY WITHIN THE AREA REFERRED TO IN PARAGRAPH 1
HEREOF ARE HEREBY RELEASED TO THE UNITED STATES ABSOLUTELY, AND IN
ACCORDANCE WITH THE TERMS OF THE INTERIM AGREEMENT, AS AMENDED, AND THE
UNITED STATES IS HEREBY RELIEVED OF ANY OBLIGATION UNDER SAID AGREEMENT
TO IMPOUND ANY SUMS HEREAFTER RECEIVED BY IT FROM LEASES OF LANDS LYING
WHOLLY WITHIN SAID AREA. 

3.  AS AGAINST THE PLAINTIFF UNITED STATES AND ALL PERSONS CLAIMING
UNDER IT, THE STATE OF LOUISIANA HAS EXCLUSIVE RIGHTS TO EXPLORE THE
AREA LYING WITHIN THREE GEOGRAPHICAL MILES SEAWARD OF ITS COASTLINE
DESCRIBED IN EXHIBIT A HEREOF, AND TO EXPLOIT THE NATURAL RESOURCES OF
SAID AREA, WITH THE EXCEPTIONS PROVIDED BY SECTION 5 OF THE SUBMERGED
LANDS ACT, 67 STAT. 32, 43 U.S.C. SEC. 1313.  THE UNITED STATES IS NOT
ENTITLED TO ANY INTEREST IN SUCH LANDS, MINERALS, AND RESOURCES AND
SAID UNITED STATES, ITS PRIVIES, ASSIGNS, LESSES AND OTHER PERSONS
CLAIMING UNDER IT ARE HEREBY ENJOINED FROM INTERFERING WITH THE RIGHTS
OF THE STATE OF LOUISIANA IN SUCH LANDS, MINERALS AND RESOURCES. 

4.  ALL SUMS NOW HELD IMPOUNDED BY THE STATE OF LOUISIANA UNDER THE
INTERIM AGREEMENT OF OCTOBER 12, 1956, AS AMENDED, DERIVED FROM LEASES
OF LANDS LYING WHOLLY WITHIN THE AREA REFERRED TO IN PARAGRAPH 3 HEREOF
ARE HEREBY RELEASED TO LOUISIANA IN ACCORDANCE WITH THE INTERIM
AGREEMENT OF 1956, AS AMENDED, AND LOUISIANA IS HEREBY RELIEVED OF ANY
OBLIGATION UNDER SAID AGREEMENT TO IMPOUND ANY SUMS HEREAFTER RECEIVED
BY IT FROM LEASES OF LANDS LYING WHOLLY WITHIN SAID AREA. 

5.  WITHIN 90 DAYS AFTER THE ENTRY OF THE DECREE-- 

(A) THE STATE OF LOUISIANA SHALL PAY TO THE UNITED STATES OR OTHER
PERSONS ENTITLED THERETO UNDER THE INTERIM AGREEMENT OF OCTOBER 12,
1956, AS AMENDED, ALL SUMS, IF ANY, NOW HELD IMPOUNDED BY THE STATE OF
LOUISIANA UNDER SAID AGREEMENT, DERIVED FROM OR ATT RIBUTABLE TO THE
LANDS, MINERALS OR RESOURCES DESCRIBED IN PARAGRAPH 1 HEREOF; 

(B) THE UNITED STATES SHALL PAY TO THE STATE OF LOUISIANA OR OTHER
PERSONS ENTITLED THERETO UNDER THE INTERIM AGREEMENT, AS AMENDED, ALL
SUMS, IF ANY, NOW HELD IMPOUNDED BY THE UNITED STATES UNDER SAID
AGREEMENT, DERIVED FROM OR ATTRIBUTABLE TO THE LANDS, MINERALS OR
RESOURCES DESCRIBED IN PARAGRAPH 3 HEREOF; 

(C) FAILURE OF EITHER PARTY TO AGREE ON CORRECTNESS OF THE SUMS DUE
THE OTHER SHALL IN NO WAY BE REASON TO RETARD PAYMENT OF SUMS WHICH ARE
ADMITTEDLY DUE BY THE PAYING PARTY'S OWN CALCULATIONS. 

6.  WITHIN 60 DAYS AFTER THE ENTRY OF THIS DECREE-- 

(A) THE STATE OF LOUISIANA SHALL RENDER TO THE UNITED STATES AND
FILE WITH THE COURT A TRUE, FULL, ACCURATE AND APPROPRIATE ACCOUNT OF
ANY AND ALL OTHER SUMS OF MONEY DERIVED BY THE STATE OF LOUISIANA SINCE
JUNE 5, 1950, EITHER BY SALE, LEASING, LICENSING, EXPLOITATION OR
OTHERWISE FROM OR ON ACCOUNT OF ANY OF THE LANDS, MINERALS OR RESOURCES
DESCRIBED IN PARAGRAPH 1 HEREOF; 

(B) THE UNITED STATES SHALL RENDER TO THE STATE OF LOUISIANA AND
FILE WITH THE COURT A TRUE, FULL, ACCURATE AND APPROPRIATE ACCOUNT OF
ANY AND ALL OTHER SUMS OF MONEY DERIVED BY THE UNITED STATES EITHER BY
SALE, LEASING, LICENSING, EXPLOITATION OR OTHERWISE FROM OR ON ACCOUNT
OF THE LANDS, MINERALS OR RESOURCES DESCRIBED IN PARAGRAPH 3 HEREOF; 

(C) WITHIN 60 DAYS AFTER RECEIVING THE ACCOUNT PROVIDED FOR BY
PARAGRAPH 6 (A) OR 6 (B) HEREOF, A PARTY MAY SERVE ON THE OTHER AND
FILE WITH THE COURT ITS OBJECTIONS THERETO.  THEREAFTER EITHER PARTY
MAY FILE SUCH MOTION OR MOTIONS AT SUCH TIME AS MAY BE APPROPRIATE TO
HAVE THE ACCOUNT SETTLED IN CONJUNCTION WITH THE ISSUES CONCERNING THE
AREAS STILL IN DISPUTE.  IF NEITHER PARTY FILES SUCH AN OBJECTION
WITHIN 60 DAYS, THEN EACH PARTY SHALL FORTHWITH PAY TO ANY THIRD PERSON
ANY AMOUNT SHOWN BY SUCH ACCOUNTS TO BE PAYABLE BY IT OT SUCH PERSON,
AND THE PARTY WHOSE OBLIGATION TO THE OTHER PARTY IS SHOWN BY SUCH
ACCCOUNTS TO BE GREATER SHALL FORTHWITH PAY TO THE OTHER PARTY THE NET
BALANCE SO SHOWN TO BE DUE.  IF OBJECTIONS ARE FILED BUT ANY UNDISPUTED
NET BALANCE IS SHOWN WHICH WILL BE DUE FROM ONE PARTY TO THE OTHER
PARTY OR TO ANY THIRD PERSON REGARDLESS OF WHAT MAY BE THE ULTIMATE
RULING ON THE OBJECTIONS, THE PARTY SO SHOWN TO BE UNDER ANY SUCH
OBLIGATION SHALL FORTHWITH PAY EACH SUCH UNDISPUTED BALANCE TO THE
OTHER PARTY OR OTHER PERSON SO SHOWN TO BE ENTITLED THERETO.  THE
PAYMENTS DIRECTED BY PARAGRAPHS 5 (A) AND 5 (B) HEREOF SHALL BE MADE
IRRESPECTIVE OF THE ACCOUNTINGS PROVIDED FOR BY PARAGRAPHS 6 (A) AND 6
(B). 

7.  ALL SUMS HERETOFORE IMPOUNDED PURSUANT TO THE INTERIM AGREEMENT
OF 1956, AS AMENDED, SHALL BE FULLY ACCOUNTED FOR AND PAID WITHIN THE
90 DAYS PROVIDED IN PARAGRAPH 5, EXCEPT AS TO SPLIT LEASES THAT
ACCOUNTING AND PAYMENT MAY BE DEFERRED ON ROYALTY REVENUE FROM (A) NON
UNITIZED WELLS WITH COMPLETION POINTS AT UNIDENTIFIED LOCATIONS OR
LOCATIONS CONTROVERTED BY THE PARTIES; AND (B) UNITS PARTIALLY
SHOREWARD OF THE THREE-MILE BOUNDARY AS TO WHICH THERE IS NO PRESENT
AGREEMENT THAT PARTICIPATION IS ON A SURFACE ACREAGE BASIS. 

FUNDS FROM SPLIT LEASES NOT ACCOUNTED FOR AND PAID PURSUANT TO THE
PRECEDING SENTENCE SHALL BE THE SUBJECT OF THE ACCOUNTING TO FOLLOW THE
NEXT DECREE OF THIS COURT IN THIS CASE, UNLESS THE PARTIES AGREE ON A
PRIOR DISTRIBUTION. 

EXCEPT AS PROVIDED ABOVE FOR ACCOUNTINGS AND PAYMENT, PENDING
FURTHER ORDER OF THE COURT, LEASES OF LAND LYING PARTLY WITHIN THREE
MILES OF THE LINE DESCRIBED IN PARAGRAPH 9 HEREOF SHALL BE IN NO WAY
AFFECTED BY ANYTHING CONTAINED IN THEIS DECREE. 

8.  THE PARTIES MAY BY AGREEMENT MODIFY THE TIME FOR ACCOUNTING AND
PAYMENT IN WHOLE OR PART AS THE PROGRESS OF TECHNICAL WORK MAY INDICATE
IS NECESSARY.  IT IS UNDERSTOOD THAT THE PARTIES MAY BE UNABLE TO AGREE
ON WHETHER OFFSETS ARE PERMITTED OR WHETHER INTEREST MAY BE DUE ON
FUNDS IMPOUNDED PURSUANT TO THE INTERIM AGREEMENT OF OCTOBER 12, 1956,
OR UPON CALCULATIONS OR AUDITS, AND THESE ISSUES, AS WELL AS OTHERS NOT
EXPRESSLY TREATED HEREIN, SHALL IN NO WAY BE AFFECTED BY THIS DECREE. 

9.  THE COASTLINE OR BASELINE REFERRED TO IN PARAGRAPHS 1 AND 3,
SUPRA, IS DESCRIBED BY COORDINATES IN THE LOUISIANA PLANE COORDINATE
SYSTEM, SOUTH ZONE, AS SET FORTH IN EXHIBIT A, APPENDED TO THIS
DECREE.  THIS COATLINE SUPERSEDES ALL PRIOR COASTLINE DESCRIPTIONS OF
FORMER DECREES IN THIS CASE AND IS THE PAST AND PRESENT COASTLINE AND
SHALL CONSTITUTE THE COASTLINE AS OF THE DATE OF THE FINAL DECREE
INTHIS CASE. 

10.  NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH 9, FOR LIMITED TIME
PERIODS RELEVANT TO THIS DEVREE, CERTAIN OF THE POINTS OR LINES
CONTAINED IN THE ABOVE BASELINE DESCRIPTION WERE NOT PART OF THE
LOUISIANA COASTLINE, AND FOR OTHER PERIODS ADDITIONAL POINTS OR LINES
MUST BE ADDED TO THAT COASTLINE.  THESE VARIATIONS ARE DESCRIBED IN
EXHIBIT B, WHICH FOR THE SECTORS AND TIMES GIVEN, DESCRIBES PORTIONS OF
THE BASELINE.  OTHERWISE, THE LOUISIANA COASTLINE IS TO BE TAKEN AS THE
SAME AS THE PRESENT COASTLINE FOR ALL RELEVANT TIMES AND PURPOSES. 

11.  THE PARTIES ARE DIRECTED TO ESTABLISH LINES THREE GEOGRAPHICAL
MILES SEAWARD OF THE COASTLINES DESCRIBED IN EXHIBITS A AND B TO BE
EMPLOYED IN ACCOUNTINGS AND SUBMITTED IN THE PROPOSAL FINAL DECREE
HEREAFTER, DELIMITING THE SEAWARD LIMIT OF THE STATE OF LOUISIANA'S
RIGHTS UNDER THE SUBMERGED LANDS ACT. 

THE PARTIES ARE DIRECTED TO PREPARE A FINAL DECREE FOR ENTRY BY THIS
COURT IN THE NEAR FUTURE RESOLVING THE ADDITIONAL ISSUES REQUIRED TO BE
DEALT WITH THAT THIS LITIGATION MAY BE TERMINATED, TO INCLUDE, BUT NOT
NECESSARILY BE LIMITED TO, MATTERS RELATED TO UNRESOLVED ISSUES, IF
ANY, CONCERNING ACCOUNTINGS AND PAYMENTS, OFFSET CLAIMS, PAYMENTS TO
OTHERS, AMBULATORY BOUNDARY COMPLEXITIES OR ADMINISTRATIVE PROBLEMS. 

12.  THE COURT RETAINS JURISDICTION TO ENTERTAIN SUCH FURTHER
PROCEEDINGS, ENTER SUCH ORDERS AND ISSUE SUCH WRITS AS MAY FROM TIME TO
TIME BE DEEMED NECESSARY OR ADVISABLE TO GIVE PROPER FORCE AND EFFECT
TO ITS PREVIOUS ORDERS OR DECREES HEREIN OR TO THIS DECREE OR TO
EFFECTUATE THE RIGHTS OF THE PARTIES IN THE PREMISES. 

13.  NOTHING IN THIS DECREE OR IN THE PROCEEDINGS LEADING TO IT
SHALL PREJUDICE ANY RIGHTS, CLAIMS OR DEFENSES OF THE STATE OF
LOUISIANA AS TO ITS MARITIME LATERAL BOUNDARIES WITH THE STATES OF
MISSISSIPPI AND TEXAS, WHICH BOUNDARIES ARE NOT AT ISSUE IN THIS
LEGISLATION.  NOR SHALL THE UNITED STATES IN ANY WAY BE PREJUDICED
HEREBY AS TO SUCH MATTERS.  NOR SHALL ANYTHING IN THIS DECREE PREJUDICE
OR MODIFY THE RIGHTS AND OBLIGATIONS UNDER ANY CONTRACTS OR AGREEMENTS,
NOT INCONSISTENT WITH THIS DECREE, BETWEEN THE PARTIES OR BETWEEN A
PARTY AND A THIRD PARTY, ESPECIALLY, BUT NOT LIMITED TO, THE INTERIM
AGREEMENT OF OCTOBER 12, 1956, AS AMENDED, WHICH AGREEMENT REMAINS IN
EFFECT EXCEPT AS EXPLICITYLY MODIFIED HEREBY. 

        EXHIBIT A X        Y 

A LINE FROM___________ 2752565   568525 

THROUGH_________________ 2773787   513796 

THROUGH_________________ 2777512   513071 

THROUGH_________________ 2779032  512013 

THROUGH_________________ 2780766   510417 

THROUGH_________________ 2782059   508914 

THROUGH_________________ 2784689   505455 

THROUGH_________________ 2788518 498898 

THROUGH_________________ 2790051   496115 

THROUGH_________________ 2791690   491970 

THROUGH_________________ 2794789   481712 

THROUGH_________________ 2796202   475864 

THROUGH_________________ 2797209   468763 

THROUGH_________________ 2797456   463898 

THROUGH_________________ 2797455   458119 

THROUGH_________________ 2797067   452190 

THROUGH_________________ 2795853   442333 

THROUGH_________________ 2794722   439006 

THROUGH_________________ 2793260   430155 

THROUGH_________________ 2790415   420878 

THROUGH_________________ 2788165   414646 

THROUGH_________________ 2786724   410834 

THROUGH_________________ 2783250   403219 

THROUGH_________________ 2779673   397140 

THROUGH_________________ 2777922   394224 

THROUGH_________________ 2776487   392403 

THROUGH_________________ 2775343   391771 

THROUGH_________________ 2774819   390716 

THROUGH_________________ 2774670   390293 

THROUGH_________________ 2773972   389724 

THROUGH_________________ 2772541   387391 

THROUGH_________________ 2770599   383887 

THROUGH_________________ 2768775   381521 

THROUGH_________________ 2768031   380244

 X        Y 

THROUGH_________________ 2767052   379676 

THROUGH_________________ 2766408   378524 

THROUGH_________________ 2761138   371491 

THROUGH_________________ 2758093   367862 

THROUGH_________________ 2757465   366796 

THROUGH_________________ 2755709   364596 

THROUGH_________________ 2755015   363480 

THROUGH_________________ 2749221   357797 

THROUGH_________________ 2746309   355438 

THROUGH_________________ 2744222   354125 

THROUGH_________________ 2743352   353794 

THROUGH_________________ 2742583   353754 

THROUGH_________________ 2727653   334120 

THROUGH_________________ 2726852   333103 

THROUGH_________________ 2723975   330868 

THROUGH_________________ 2722321   329172 

THROUGH_________________ 2720696   326779 

THROUGH_________________ 2717012   320677 

THROUGH_________________ 2715236   318391 

THROUGH_________________ 2714633   317731 
THROUGH_________________ 2713324   316801 

THROUGH_________________ 2711772   316107 

THROUGH_________________ 2710380   315995 

THROUGH_________________ 268683    308890 

THROUGH_________________ 2689514   307841 

THROUGH_________________ 2687610   301648 

THROUGH_________________ 2687014   300054 

THROUGH_________________ 2685058   297573  THROUGH_________________
2683264   296069 

THROUGH_________________ 2680880   294918 

THROUGH_________________ 2678009   294303 

TO______________________ 2681915   257755 

A POINT AT____________ 2688235   252215 

A POINT AT____________ 2689305   250395 

A POINT AT____________ 2700735   234640 

A POINT AT____________ 2701500   232820 

A POINT AT____________ 2707635   223640

X        Y 

A LINE FROM___________ 2709100   220995 

TO_____________________ 2734900    209275 

A POINT AT___________ 2737065    210155 

A POINT AT___________  2738320   210230 

A POINT AT___________  2738938   209975 

A POINT AT___________  2750755   206535 

A POINT AT___________  2755325   204680 

A POINT AT___________  2755178   203815 

A POINT AT___________  2754100   186915 

A POINT AT___________  2754263   186316 

A POINT AT___________  2753885   183460 

A POINT AT___________  2752470   182170 

A POINT AT___________  2751045   181305 

A POINT AT___________  2750586   181270 

A POINT AT___________  2736662   175902 

A LINE FROM__________ 2734720    174030 

TO_____________________ 2733040    172295 

A LINE FROM__________ 2728153  162005 

TO______________________ 2727215   156890 

A POINT AT____________ 2726951   150846 

A POINT AT____________ 2726105   148530 

A POINT AT____________ 2724850   148150 

A LINE FROM___________ 2725550   153430 

TO______________________ 2724419   152060 

A LINE FROM___________ 2724314   151595 

THROUGH_________________ 2702461   124148 

TO______________________ 2701735   123905 

A POINT AT____________ 2699435   118600 

A POINT AT____________ 2699815 116800 

A POINT AT____________ 2699695   116700 

A LINE FROM___________ 2697850   117200 

THROUGH_________________ 2697510   117648 

TO______________________ 2697300   118500 

POINT AT_______________ 2685325   133800 

A LINE FROM___________ 2682605   136895 

THROUGH_________________ 2678500   139250 

TO______________________ 2673482   141245 

A LINE FROM___________ 2672315   141745

            X        Y 

THROUGH_________________ 2644940   134910 

THROUGH_________________ 2641835   129725 

THROUGH_________________ 2639545   126825 

THROUGH_________________ 2638945   126780 

THROUGH_________________ 2635800   123995 

THROUGH_________________ 2633755   121760 

THROUGH_________________ 2630660   116450 

THROUGH_________________ 2628680   113190 

THROUGH_________________ 2625550  109560 

THROUGH_________________ 2624995   108700 

THROUGH_________________ 2624760   108445 

THROUGH_________________ 2624045   107660 

THROUGH_________________ 2621925 105355 

THROUGH_________________ 2620655   104065 

THROUGH_________________ 2618380   102265 

THROUGH_________________ 2615885   99131 

THROUGH_________________ 2615196   98279 

THROUGH_________________ 2611843   94130 

THROUGH_________________ 2610160   92050 

THROUGH_________________ 2609785   91750 

THROUGH_________________ 2609180   91445 

THROUGH_________________ 2607290   93040 

THROUGH_________________ 2607400   93175 

THROUGH_________________ 2607455   93710 

THROUGH_________________ 2608665   95870 

THROUGH_________________ 2610650   98640 

TO______________________ 2614224   105206 

A POINT AT____________ 2614270   110615 

A POINT AT____________ 2614553   111404 

A LINE FROM___________ 2615475   113900 

THROUGH_________________ 2615450   157770 

THROUGH_________________ 2615135   159890 

THROUGH_________________ 2614790   160765 

THROUGH_________________ 2614865   161005 

THROUGH_________________ 2613550   164745 

THROUGH_________________ 2613585   166700 

THROUGH_________________ 2613485   167600

                X        Y 

THROUGH_________________ 2613960   170145 

THROUGH_________________ 2614070   171910 

TO______________________ 2611490   176505 

A POINT AT____________ 2610755   176310 

A POINT AT____________ 2609880   177025 

A LINE FROM___________ 2608270   178325 

THROUGH_________________ 2607710   178665 

THROUGH_________________ 2606370   180190 

THROUGH_________________ 2605125   182710 

TO______________________ 2605025   183315 

A LINE FROM___________ 2604220   184790 

THROUGH_________________ 2603355   186915 

THROUGH_________________ 2602860   188615 

THROUGH_________________ 2602425   189395 

THROUGH_________________ 2601940   190595 

THROUGH_________________ 2600780   192900 

THROUGH_________________ 2598335   196450 

THROUGH_________________ 2594900   199935 

THROUGH_________________ 2593875   201260 

THROUGH_________________ 2593340   201660 

THROUGH_________________ 2590100   203860 

THROUGH_________________ 2589100   204125 

TO______________________ 2587400   205250 

A LINE FROM___________ 2585000   206975 

THROUGH_________________ 2583790   207010 

THROUGH_________________ 2576450   210023 

THROUGH_________________ 2576174   209790 

THROUGH_________________ 2575992   210090 

THROUGH_________________ 2574890   210450 

THROUGH_________________ 2574712   210767 

THROUGH_________________ 2571725   211744 

THROUGH_________________ 2568736   212548 

THROUGH_________________ 2566991   212986 

TO______________________ 2565940   212988

            X        Y 

A LINE FROM___________ 2563010  214045 

THROUGH_________________ 2562149   214046 

THROUGH_________________ 2561385   214258 

TO______________________ 2556172   215383 

A LINE FROM___________ 2550402   216158 

THROUGH_________________ 2406890   189733 

THROUGH_________________ 2398175   182359 

THROUGH_________________ 2393610   178130 

THROUGH_________________ 2385833   171938 

THROUGH_________________ 2381527   168671 

THROUGH_________________ 2376521   164696 

TO______________________ 2374875   163200 

A POINT AT____________ 2376485   164409 

A LINE FROM___________ 2374875   163200 

THROUGH_________________ 2373613   162597 

THROUGH_________________ 2369709   160120 

TO______________________ 2367695   158943 

A LINE FROM___________ 2366789   158537 

THROUGH__________________2365337   157918 

TO______________________ 2364392   157349 

A LINE FROM___________ 2362830   157339 

TO______________________ 2356733   157323 

A LINE FROM___________ 2354070   152599 

TO______________________ 2353875   152659 

A LINE FROM___________ 2347871   153564 

THROUGH_________________ 2342108   151526 

TO______________________ 2339651   150598 

A LINE FROM___________ 2337450   149987 

THROUGH_________________ 2335471   149301 

THROUGH_________________ 2327933   146251 

THROUGH_________________ 2322466   144396 

TO______________________ 2320164   143811

                              X        Y 

A LINE FROM___________ 2319608   143421 

THROUGH_________________ 2317663   142869 

THROUGH_________________ 2313902   141865 

THROUGH_________________ 2312204   141813 

THROUGH_________________ 2310546   141903 

THROUGH_________________ 2308552   142401 

THROUGH_________________ 2307414   143059 

THROUGH_________________ 2306697   143789 

THROUGH_________________ 2300326   139954 

THROUGH_________________ 2298538   139073 

THROUGH_________________ 2296041   138519 

THROUGH_________________ 2295144   138550 

THROUGH_________________ 2294383   138846 

THROUGH_________________ 2293148   139498 

THROUGH_________________ 2291503   139861 

THROUGH_________________ 2286402   140499 

THROUGH_________________ 2281202   141484 

THROUGH_________________ 2274749  143161 

THROUGH_________________ 2270205   145091 

THROUGH_________________ 2264450   147674 

THROUGH_________________ 2260236   150105 

THROUGH_________________ 2256191 151946 

THROUGH_________________ 2254031   153153 

THROUGH_________________ 2253306   154102 

THROUGH_________________ 2222957   146695 

THROUGH_________________ 2221937   146004 

THROUGH_________________ 2219935   144971 

THROUGH_________________ 2218146   144160 

THROUGH_________________ 2215009   143380 

THROUGH_________________ 2207126   141266 

THROUGH_________________ 2198296   138515 

THROUGH_________________ 2192330   136944 

THROUGH_________________ 2186596   135997 

THROUGH_________________ 2184788   135611 

THROUGH_________________ 2183331   135655 

THROUGH_________________ 2182166   135368 

THROUGH_________________ 2180645   135457 

THROUGH_________________ 2179937   135695 

THROUGH_________________ 2170035   135500

                   X        Y 

THROUGH_________________ 2169680   135315 

THROUGH_________________ 2167836   134922 

TO______________________ 2164477   134753 

A LINE FROM___________ 2162430   135112 

TO______________________ 2157920   135521 

A POINT AT____________ 2155349   135847 

A LINE FROM___________ 2148929   136962 

THROUGH_________________ 2147751   136599 

THROUGH_________________ 2143589   136276 

THROUGH_________________ 2139529   136276 

TO______________________ 2138231   136387 

A LINE FROM___________ 2134210   136726 

THROUGH_________________ 2133089   136940 

THROUGH_________________ 2128819   138694 

THROUGH_________________ 2126697   139353 

THROUGH_________________ 2122523   140238 

THROUGH_________________ 2118829   141971 

THROUGH_________________ 2118065   142532 

THROUGH_________________ 2117317   143491 

TO______________________ 2117632   143583 

POINT AT_______________ 2131078   175500 

POINT AT_______________ 2128430   178049 

POINT AT_______________ 2127269   179020 

POINT AT_______________ 2124878   180545 

POINT AT_______________ 2111697   183677 

POINT AT_______________ 2106412   183216 

A LINE FROM___________ 2103313   183605 

THROUGH_________________ 2102167   184610 

THROUGH_________________ 2100222   185315 

THROUGH_________________ 2099609   185125 

THROUGH_________________ 2098954   185105 

THROUGH_________________ 2087767   187497 

THROUGH_________________ 2087027   187342 

THROUGH_________________ 2086261   187177 

TO______________________ 2085370   187372

                              X      Y 

A LINE FROM___________ 2077417   189409 

THROUGH_________________ 2076201   189799 

TO______________________ 2075295   190530 

A POINT AT____________ 2071131   195080 

A LINE FROM___________ 2062055   199555 

THROUGH_________________ 2058700   200495 

THROUGH_________________ 2057430   200980 

THROUGH_________________ 2055610   201415 

THROUGH_________________ 2054750   201215 

THROUGH_________________ 2053190   201320 

THROUGH_________________ 2051090   201230 

THROUGH_________________ 2049230   201255 

THROUGH_________________ 2045960   201470 

THROUGH_________________ 2042475   201660 

THROUGH_________________ 2037075   203200 

THROUGH_________________ 2035775   203405 

THROUGH_________________ 2033385   204235 

THROUGH_________________ 2029630   205680 

THROUGH_________________ 2026640   206660 

THROUGH_________________ 2023042   208270 

THROUGH_________________ 2021155   208850 

THROUGH_________________ 2017453   210475 

THROUGH_________________ 2016243   211245 

THROUGH_________________ 2014384   213268 

THROUGH_________________ 2010960   216566 

THROUGH_________________ 2008873   218388 

THROUGH_________________ 2008058   219434 

THROUGH_________________ 2006991   221401 

THROUGH_________________ 2006256   222432 

THROUGH_________________ 5004384   224474 

THROUGH_________________ 200030   228573 

THROUGH_________________ 1998568   230370 

THROUGH_________________ 1996506   233983 

TO______________________ 1987818   240892 

A POINT FROM__________ 1987818   240892 

A POINT FROM__________ 1987371   241272

                    X        Y 

A LINE FROM___________ 1993420   241930 

TO_____________________ 1863474    298772 

A POINT AT____________ 1933172   264238 

A POINT AT____________ 1924399   268936 

A POINT AT____________ 1914373   270380 

A POINT AT____________ 1896827   275747 

A POINT AT____________ 1882306   270590 

A POINT AT____________ 1872418   277460 

A POINT AT____________ 1843467   275912 

A POINT AT____________ 1835344   270839 

A POINT AT____________ 1834019   270301 

A POINT AT____________ 1833527   271423 

A POINT AT____________ 1820994   291804     A POINT AT____________
1809845   296285 

A POINT AT____________ 1791584   307545 

A POINT AT____________ 1783067 321331 

A POINT AT____________ 1782391   321876 

A POINT AT____________ 1778769   324757 

A LINE FROM___________ 1763190   333540 

TO______________________ 1762420   333590 

A POINT AT____________ 1758630   333490 

A LINE FROM___________ 1755535   335045 

THROUGH_________________ 1748380   334810 

THROUGH_________________ 1743691   334373 

THROUGH_________________ 1738236   333686 

THROUGH_________________ 1735850   333066 

THROUGH_________________ 1730831   330886 

THROUGH_________________ 1726542   329268 

THROUGH_________________ 1724713   328326 

THROUGH_________________ 1722884   327774 

THROUGH_________________ 1721682   327214 

THROUGH_________________ 1720140   326402 

THROUGH_________________ 1717114   32303 

THROUGH_________________ 1711532   320881 

THROUGH_________________ 1709968 319818 

THROUGH_________________ 1708756   318661

                       X        Y 

THROUGH_________________ 1706790   317870 

THROUGH_________________ 1703080   316885 

THROUGH_________________ 1700680   316390 

THROUGH_________________ 1696359   315965 

THROUGH_________________ 1692568   315990 

THROUGH_________________ 1689980   316170 

THROUGH_________________ 1687270   316510 

THROUGH_________________ 1678545   318408 

THROUGH_________________ 1675346   319196 

THROUGH_________________ 1671018   320396 

THROUGH_________________ 1669012   321069 

THROUGH_________________ 1667091   321595 

THROUGH_________________ 1665833   321916 

THROUGH_________________ 1663290   322457 

THROUGH_________________ 1659960   323169 

THROUGH_________________ 1658887   323134 

THROUGH_________________ 1657050   323540 

THROUGH_________________ 1655896   323305 

THROUGH_________________ 1653430   323751 

THROUGH_________________ 1651294   324333 

THROUGH_________________ 1650220   324644 

THROUGH_________________ 1649308   324684 

THROUGH_________________ 1648656   324985 

THROUGH_________________ 1639027   326645 

THROUGH_________________ 1629147   327939 

THROUGH_________________ 1622420   328555 

THROUGH_________________ 1617090   329300 

THROUGH_________________ 1616760   329510 

THROUGH_________________ 1613190   329780 

THROUGH_________________ 1609300   330480 

THROUGH_________________ 1608080   330835 

THROUGH_________________ 1605965   331030 

THROUGH_________________ 1605565   331280 

THROUGH_________________ 1603140   331540 

THROUGH_________________ 1600765   332140 

THROUGH_________________ 1599740   332390 

THROUGH_________________ 1595210   333090 

THROUGH_________________ 1594770   333270 

THROUGH_________________ 1594075   333290

            X        Y 

THROUGH_________________ 1593910   333645 

THROUGH_________________ 1593010   333520 

THROUGH_________________ 1591685   333785 

THROUGH_________________ 1589460   334525 

THROUGH_________________ 1586780   335220 

THROUGH_________________ 1581450   336800 

THROUGH_________________ 1576170   338670 

THROUGH_________________ 1571630   340335 

THROUGH_________________ 1570480  340905 

THROUGH_________________ 1567695   341990 

THROUGH_________________ 1566890   342490 

THROUGH_________________ 1566375   342810 

THROUGH_________________ 1564160 343480 

THROUGH_________________ 1562680   344195 

THROUGH_________________ 1558720   345375 

THROUGH_________________ 1555105   346865 

THROUGH_________________ 1553840   347150 

THROUGH_________________ 1551670   348170 

THROUGH_________________ 1550645   349050 

THROUGH_________________ 1546740   350600 

THROUGH_________________ 1546195   350910 

THROUGH_________________ 1539270   354040 

THROUGH_________________ 1536505   355610 

THROUGH_________________ 1536245   356080 

THROUGH_________________ 1535690   356465 

THROUGH_________________ 1532515   357575 

THROUGH_________________ 1531970   358030 

THROUGH_________________ 1531240   358190 

THROUGH_________________ 1524550   361675 

THROUGH_________________ 1513280   366930 

THROUGH_________________ 1502470   372625 

THROUGH_________________ 1496700   375770 

THROUGH_________________ 1492040   378110 

THROUGH_________________ 1489725   379370 

THROUGH_________________ 1479730   384090 

THROUGH_________________ 1471240   387390 

THROUGH_________________ 1467685   388820 

THROUGH_________________ 1460435   391260 

THROUGH_________________ 1454105   393050

 X        Y 

THROUGH_________________ 1449935   394700 

THROUGH_________________ 1444715   396930 

THROUGH_________________ 1441485   398150 

TO______________________ 1436899   399820 

LINE FROM______________ 1431526   400742 

THROUGH_________________ 1431465   400740 

TO______________________ 1429020   401485 

A LINE FROM___________ 1429035   401760 

THROUGH_________________ 1425600   402610 

THROUGH_________________ 1424630   403175 

THROUGH_________________ 1416365   405700 

THROUGH_________________ 1410175   407090 

THROUGH_________________ 1402525   408365 

THROUGH_________________ 1397220   408870 

THROUGH_________________ 1392000   409180 

THROUGH_________________ 1391954  409243 

THROUGH_________________ 1386636   409216 

THROUGH_________________ 1383990   409136 

THROUGH_________________ 1380235   408500 

THROUGH_________________ 1376515 407966 

TO______________________ 1372945   406862 

A LINE FROM___________ 1363392   397870 

TO______________________ 1362416   397822 

A LINE FROM___________ 1354310   403875 

A LINE FROM___________ 1351162   404620 

A LINE FROM___________ 1341917   405967 

A LINE FROM___________ 1333745   406888 

A LINE FROM___________ 1328473   407126 

A LINE FROM___________ 1323205   407138 

A LINE FROM___________ 1317944   407045 

A LINE FROM___________ 1312617   406742 

A LINE FROM___________ 1307312   406260 

A LINE FROM___________ 1296747   405049 

A LINE FROM___________ 1291413   404205 

A LINE FROM___________ 1286154   403467 

A LINE FROM___________ 1280760   402836

       X        Y 

THROUGH_________________ 1275467   402375 

THROUGH_________________ 1264910   401500 

THROUGH_________________ 1259600   400971 

THROUGH_________________ 1254211   400226 

THROUGH_________________ 1248971   399421 

THROUGH_________________ 1243670   398400 

THROUGH_________________ 1240260   397840 

THROUGH_________________ 1235668   396741 

THROUGH_________________ 1233256   395989 

THROUGH_________________ 1228846   394497 

THROUGH_________________ 1228772   394775 

THROUGH_________________ 1226444   393922 

THROUGH_________________ 1225768   393281 

THROUGH_________________ 1225421   393370 

THROUGH_________________ 1219698   390746 

THROUGH_________________ 1219065   390227 

THROUGH_________________ 1217536   389445 

THROUGH_________________ 1217089   389513 

THROUGH_________________ 1216582   389216 

TO______________________ 1215615   388263 

A LINE FROM___________ 1206795   378672 

THROUGH_________________ 1209227   364245 

TO______________________ 1208456   363990

        EXHIBIT B 

FROM JANUARY 1961 TO DECEMBER 1969, THE BASELINE IN THE EAST BAY
VICINITY FROM POINT X 2699435, Y 118600 TO POINT X 2644940, Y 134910
DEVIATES FROM THE PRESENT BASELINE AND MAY BE DESCRIBED AS FOLLOWS: 

A POINT AT............... X 2699815     Y 116700 

A POINT AT............... X 2699695     Y 116700 

A LINE FROM............. X 2697850     Y 117200 

THROUGH................. X 2697510     Y 117648 

TO....................... X 2697300     Y 118500 

A LINE FROM............. X 2687638     Y 130705 

THROUGH................. X 2685250     Y 131590 

THROUGH................. X 2684417     Y 131957 

THROUGH................. X 2683850     Y 132390 

THROUGH................. X 2682580     Y 133325 

THROUGH................. X 2681624     Y 134128 

THROUGH................. X 2677650     Y 138050 

THROUGH................. X 2644940     Y 134910 

PRIOR TO JANUARY 1961, THE BASELINE IN THE EAST BAY VICINITY FROM
POINT X 2699435, Y 118600 TO POINT X 2644940, Y 134910 DEVIATES FROM
THE PRESENT BASELINE AND MAY BE DESCRIBED AS FOLLOWS: 

A POINT AT.............. X 2699435     Y 118600 

A LINE FROM............. X 2697850     Y 117200 

THROUGH................. X2697510      Y 117648 

TO...................... X 2697300     Y 118500 

A LINE FROM............. X 2687638     Y 130705 

THROUGH................. X 2685250     Y 131590 

THROUGH................. X 2684417     Y 131957 

THROUGH................. X 2683850     Y 132390 

THROUGH................. X 2682580     Y 133325 

THROUGH................. X 2681624     Y 134128 

THROUGH................. X 2677650     Y 138050 

THROUGH................. X 2644940     Y 134910 

PRIOR TO DECEMBER 6, 1969, THE BASELINE IN THE PASS DU BOIS VICINITY
FROM POINT X 26154508 Y 157770 TO POINT X 2613550, Y 164745 DEVIATES
FROM THE PRESENT BASELINE AND MAY BE DESCRIBED AS FOLLOWS: 

A POINT AT.............. X 2615151     Y 158006 

A POINT AT.............. X 2612771  Y 162310 

A POINT AT.............. X 2612120     Y 164118 

FROM NOVEMBER 19, 1959, TO FEBRUARY 1, 1960, THE BASELINE IN THE
PASS TANTE PHINE VICINITY FROM POINT X 2606370, Y 180190 TO POINT X
2598335, Y 196450 DEVIATES FROM THE PRESENT BASELINE AND MAY BE
DESCRIBED AS FOLLOWS: 

A POINT AT.............. X 2602000     Y 183535 

FROM JANUARY 1, 1959 THROUGH MARCH 31, 1959, AND FROM MARCH 1, 1964,
THROUGH JULY 31, 1964, THE BASELINE NORTH OF PASS TANTE PHINE FROM
POINT X 2605025, Y 183315 TO POINT X 2600780, Y 192900 DEVIATES FROM
THE PRESENT BASELINE AND MAY BE DESCRIBED AS FOLLOWS: 

A POINT AT.............. X 2602763     Y 186885 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS MOTION. 
..END :











SERFASS V. UNITED STATES, 420 U.S. 377 


       SERFASS V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 73 - 1424.  ARGUED DECEMBER 9, 1974--, DECIDED MARCH 3,

           1975; 492 F.2D 388, AFFIRMED. 


    PETITIONER, WHO HAD SUBMITTED A POST-INDUCTION ORDER CLAIM FOR

  CONSCIENTIOUS OBJECTOR STATUS TO HIS LOCAL BOARD, WAS LATER

  INDICTED FOR WILLFUL FAILURE TO REPORT FOR AND SUBMIT TO

  INDUCTION INTO THE ARMED FORCES.  HE FILED A PRETRIAL MOTION,

  ACCOMPANIED BY AN AFFIDAVIT, TO DISMISS THE INDICTMENT ON THE

  GROUND THAT THE LOCAL BOARD DID NOT STATE ADEQUATE REASONS FOR

  REFUSING TO REOPEN HIS FILE, AND A MOTION TO POSTPONE THE TRIAL

  "FOR THE REASON THAT A MOTION TO DISMISS HAS BEEN SIMULTANEOUSLY

  FILED AND THE EXPEDITIOUS ADMINISTRATION OF JUSTICE WILL BE

  SERVED BEST BY CONSIDERING THE MOTION PRIOR TO TRIAL."  THE

DISTRICT COURT DISMISSED THE INDICTMENT, NOTING THAT THE MATERIAL

  FACTS WERE DERIVED FROM THE AFFIDAVIT, PETITIONER'S SELECTIVE

  SERVICE FILE, AND FROM A STIPULATION THAT THE INFORMATION

  PETITIONER HAD SUBMITTED TO THE BOARD "ESTABLISHES A PRIMA FACIE

  CLAIM FOR CONSCIENTIOUS OBJECTOR STATUS BASED UPON LATE

  CRYSTALLIZATION."  THE COURT HELD THAT DISMISSAL OF THE
INDICTMENT

  WAS APPROPRIATE BECAUSE PETITIONER WAS ENTITLED TO FULL

  CONSIDERATION OF HIS CLAIM BEFORE HE WAS ASSIGNED TO COMBATANT

  TRAINING ANS BECAUSE THE LOCAL BOARD'S STATEMENT OF REASONS FOR

  ITS REFUSAL TO REOPEN PETITIONER'S FILE WAS "SUFFICIENTLY

  AMBIGUOUS TO BE REASONABLY CONSTRUED AS A REJECTION ON THE

  MERITS, THEREBY PREJUDICING HIS RIGHT TO IN-SERVICE REVIEW."  THE

  GOVERNMENT APPEALED UNDER 18 U.S.C. 3731.  THE COURT OF APPEALS,

  REJECTING PETITIONER'S CONTENTION THAT IT LACKED JURISDICTION

  UNDER 3731 BECAUSE THE DOUBLE JEOPARDY CLAUSE BARRED FURTHER

  PROSECUTION, REVERSED.  HELD:  THE DOUBLE JEOPARDY CLAUSE DOES

  NOT BAR AN APPEAL BY THE UNITED STATES UNDER 18 U.S.C. 3731 FROM

  A PRETRIAL ORDER DISMISSING AN INDICTMENT SINCE IN THAT SITUATION

  THE CRIMINAL DEFENDANT HAS NOT BEEN "PUT TO TRIAL BEFORE THE

  TRIER OF THE FACTS, WHETHER THE TRIER BE A JURY OR A JUDGE." 

UNITED STATES V. JORN, 400 U.S. 470, 479.  PP. 383 - 394. 

    (A) IN LIGHT OF THE LANGUAGE OF THE PRESENT VERSION OF 3731 AND

  OF ITS LEGISLATIVE HISTORY, IT IS CLEAR THAT CONGRESS INTENDED TO

  AUTHORIZE AN APPEAL TO A COURT OF APPEALS SO LONG AS FURTHER

  PROSECUTION WOULD NOT BE BARRED BY THE DOUBLE JEOPARDY CLAUSE. 

  PP. 383 - 387. 

(B) THE CONCEPT OF "ATTACHMENT OF JEOPARDY" DEFINES A POINT IN

  CRIMINAL PROCEEDINGS AT WHICH THE PURPOSES AND POLICIES OF THE

  DOUBLE JEOPARDY CLAUSE ARE IMPLICATED.  JEOPARDY DOES NOT ATTACH

  UNTIL A DEFENDANT IS PUT TO TRIAL, WHICH IN A JURY TRIAL OCCURS

  WHEN THE JURY IS EMPANELED AND SWORN AND IN A NONJURY TRIAL WHEN

  THE COURT BEGINS TO HEAR EVIDENCE.  P. 388. 

     (C) JEOPARDY HAD NOT ATTACHED IN THIS CASE WHEN THE DISTRICT

  COURT DISMISSED THE INDICTMENT, BECAUSE PETITIONER HAD NOT THEN

  BEEN PUT TO TRIAL.  THERE HAD BEEN NO WAIVER OF A JURY TRIAL; THE

  COURT HAD NO POWER TO DETERMINE PETITIONER'S GUILT OR INNOCENCE;

AND PETITIONER'S MOTION WAS PREMISED ON THE BELIEF THAT ITS

  CONSIDERATION BEFORE TRIAL WOULD SERVE THE "EXPEDITIOUS

  ADMINISTRATION OF JUSTICE."  P. 389. 

     (D) THE PRINCIPLE THAT JEOPARDY DOES NOT ATTACH UNTIL A

  DEFENDANT IS PUT TO TRIAL BEFORE THE TRIER OF FACTS IS NO MERE

  TECHNICALITY OR MECHANICAL RULE, AND PETITIONER'S CONTENTION THAT

  THE DISTRICT COURT'S DISMISSAL OF THE INDICTMENT WAS THE

  "FUNCTIONAL EQUIVALENT OF AN ACQUITTAL ON THE MERITS" IS WITHOUT

  SUBSTANCE, AS THE WORD "ACQUITTAL" HAS NO SIGNIFICANCE UNLESS

  JEOPARDY HAS ATTACHED.  UNITED STATES V. SISSON, 399 U.S. 267;

  UNITED STATES V. BREWSTER, 408 U.S. 501, DISTINGUISHED.  PP. 389

  - 393. 

     BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING

STATEMENT, POST, P. 394. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO DECIDE WHETHER A COURT OF APPEALS HAS
JURISDICTION OF AN APPEAL BY THE UNITED STATES FROM A PRETRIAL ORDER
DISMISSING AN INDICTMENT BASED ON A LEGAL RULING MADE BY THE DISTRICT
COURT AFTER AN EXAMINATION OF RECORDS AND AN AFFIDAVIT SETTING FORTH
EVIDENCE TO BE ADDUCED AT TRIAL. 

      I 

THE MATERIAL FACTS ARE NOT IN DISPUTE.  PETITIONER, WHOSE MILITARY
SERVICE HAD BEEN DEFERRED FOR TWO YEARS WHILE HE WAS IN THE PEACE
CORPS, WAS ORDERED TO REPORT FOR INDUCTION ON JANUARY 18, 1971.  ON
DECEMBER 29, 1970, HE REQUESTED THE FORM FOR CONSCIENTIOUS OBJECTORS,
SELECTIVE SERVICE FORM 150, AND AFTER SUBMITTING THE COMPLETED FORM TO
HIS LOCAL BOARD, HE REQUESTED AN INTERVIEW.  PETITIONER MET WITH THE
LOCAL BOARD ON JANUARY 13, 1971, AND THEREAFTER HE WAS INFORMED BY
LETTER THAT IT HAD CONSIDERED HIS ENTIRE SELECTIVE SERVICE FILE, HAD
"UNANIMOUSLY AGREED THAT THERE WAS NO CHANGE OVER WHICH (PETITIONER)
HAD NO CONTROL," AND HAD THEREFORE "DECIDED NOT TO RE-OPEN
(PETITIONER'S) FILE."  HE WAS ALSO INFORMED THAT HE WAS "STILL UNDER
ORDERS TO REPORT FOR INDUCTION ON JANUARY 18, 1971 AT 5:15 A.M." 
PETITIONER APPEARED AT THE EXAMINING STATION AND REFUSED INDUCTION ON
JANUARY 18. 

A GRAND JURY RETURNED AN INDICTMENT CHARGING PETITIONER WITH
WILLFULLY FAILING TO REPORT FOR AND SUBMIT TO INDUCTION INTO THE ARMED
FORCES, IN VIOLATION OF 50 U.S.C. APP. 462(A).  AT PETITIONER'S
ARRAIGNMENT HE PLEADED NOT GUILTY AND DEMANDED A JURY TRIAL.  THE TRIAL
DATE WAS SET FOR JANUARY 9, 1973.  PRIOR TO THAT TIME, PETITIONER FILED
A MOTION TO DISMISS THE INDICTMENT ON THE GROUND THAT THE LOCAL BOARD
DID NOT STATE ADEQUATE REASONS FOR ITS REFUSAL TO REOPEN HIS FILE. 
ATTACHED TO THE MOTION WAS AN AFFIDAVIT OF PETITIONER STATING MERELY
THAT HE HAD APPLIED FOR CONSCIENTIOUS OBJECTOR STATUS AND THAT THE
LOCAL BOARD'S LETTER WAS THE ONLY COMMUNICATION CONCERNING HIS CLAIM
WHICH HE HAD RECEIVED.  AT THE SAME TIME, PETITIONER MOVED "TO POSTPONE
THE TRIAL OF THE WITHIN MATTER WHICH IS NOW SCHEDULED FOR JANUARY 9,
1973, FOR THE REASON THAT A MOTION TO DISMISS HAS BEEN SIMULTANEOUSLY
FILED AND THE EXPEDITIOUS ADMINISTRATION OF JUSTICE WILL BE SERVED BEST
BY CONSIDERING THE MOTION PRIOR TO TRIAL." 

ON JANUARY 5 THE DISTRICT COURT GRANTED PETITIONER'S MOTION TO
CONTINUE THE TRIAL AND SET A DATE FOR ORAL ARGUMENT ON THE MOTION TO
DISMISS THE INDICTMENT.  BRIEFS WERE SUBMITTED, AND AFTER HEARING ORAL
ARGUMENT, THE DISTRICT COURT ENTERED AN ORDER DIRECTING THE PARTIES TO
SUBMIT A COPY OF PETITIONER'S SELECTIVE SERVICE FILE.  ON JULY 16,
1973, IT ORDERED THAT THE INDICTMENT BE DISMISSED.  IN ITS MEMORANDUM,
THE COURT NOTED THAT THE MATERIAL FACTS WERE DERIVED FROM PETITIONER'S
AFFIDAVIT, FROM HIS SELECTIVE SERVICE FILE, AND FROM THE ORAL
STIPULATION OF COUNSEL AT THE ARGUMENT "THAT THE INFORMATION WHICH
SERFASS SUBMITTED TO THE BOARD ESTABLISHES A PRIMA FACIE CLAIM FOR
CONSCIENTIOUS OBJECTOR STATUS BASED UPON LATE CRYSTALLIZATION.  /1/ THE
DISTRICT COURT HELD THAT DISMISSAL OF THE INDICTMENT WAS APPROPRIATE
BECAUSE PETITIONER WAS "ENTITLED TO FULL CONSIDERATION OF HIS CLAIM
PRIOR TO ASSIGNMENT TO COMBATANT TRAINING AND SERVICE," AND BECAUSE THE
LOCAL BOARD'S STATEMENT OF REASONS FOR REFUSING TO REOPEN HIS SELECTIVE
SERVICE FILE WAS "SUFFICIENTLY AMBIGUOUS TO BE REASONABLY CONSTRUED AS
A REJECTION ON THE MERITS, THEREBY PREJUDICING HIS RIGHTS TO IN-SERVICE
REVIEW."  /2/ 

THE UNITED STATES APPEALED TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT, ASSERTING JURISDICTION UNDER THE CRIMINAL APPEALS
ACT, 18 U.S.C. 3731, AS AMENDED BY THE OMNIBUS CRIME CONTROL ACT OF
1970, 84 STAT. 1890.  /3/ IN A "MOTION TO QUASH APPEAL FOR LACK OF
JURISDICTION" AND IN HIS BRIEF, PETITIONER CONTENDED THAT THE COURT OF
APPEALS LACKED JURISDICTION BECAUSE FURTHER PROSECUTION WAS PROHIBITED
BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.  THE COURT OF APPEALS REJECTED THAT CONTENTION. 
IT CONCLUDED THAT, ALTHOUGH NO APPEAL WOULD HAVE BEEN POSSIBLE IN THIS
CASE UNDER THE CRIMINAL APPEALS ACT AS IT EXISTED PRIOR TO THE 1970
AMENDMENTS, /4/ THOSE AMENDMENTS WERE "CLEARLY INTENDED TO ENLARGE THE
GOVERNMENT'S RIGHT TO APPEAL TO INCLUDE ALL CASES IN WHICH SUCH AN
APPEAL WOULD BE CONSTITUTIONALLY PERMISSIBLE."  RELYING ON ITS ERRLIER
OPINION IN UNITED STATES V. PECORA, 484 F.2D 1289 (1973), THE COURT OF
APPEALS HELD THAT SINCE PETITIONER HAD NOT WAIVED HIS RIGHT TO A JURY
TRIAL, /5/ AND NO JURY HAD BEEN EMPANELED AND SWORN AT THE TIME THE
DISTRICT COURT RULED ON HIS MOTION TO DISMISS THE INDICTMENT, JEOPARDY
HAD NOT ATTACHED AND THE DISMISSAL WAS AN APPEALABLE ORDER.  PECORA HAD
HELD APPEALABLE, UNDER THE PRESENT VERSION OF 3731, A PRETRIAL
DISMISSAL OF AN INDICTMENT BASED ON A STIPULATION OF THE FACTS UPON
WHICH THE INDICTMENT WAS BASED.  IN THIS CASE THE COURT OF APPEALS SAW
"NO SIGNIFICANT CONSTITUTIONAL DIFFERENCE" ARISING FROM THE FACT THAT
"THE INSTANT DISMISSAL WAS BASED UPON THE TRIAL COURT'S FINDING THAT
THE DEFENDANT HAD ESTABLISHED A DEFENSE AS A MATTER OF LAW, RATHER THAN
UPON THE FINDING, AS IN PECORA, THAT THERE WERE INSUFFICIENT FACTS AS A
MATTER OF LAW TO SUPPORT A CONVICTION."  IN BOTH CASES "THE PRETRIAL
MOTION OF DISMISSAL WAS BASED UPON UNDISPUTED FACTS RAISING A LEGAL
ISSUE AND THE DEFENDANT DID NOT WAIVE HIS RIGHT TO A JURY TRIAL," AND
IN BOTH "DENIAL OF THE MOTION TO DISMISS (WOULD HAVE) ENTITLED THE
DEFENDANT TO THE JURY TRIAL WHICH HE HAD) NOT WAIVED."  /6/ 

AS TO THE MERITS , THE COURT OF APPEALS CONCLUDED THAT IN MUSSER V.
UNITED STATES, 414 U.S. 31 (1973), THIS COURT HAD "PLACED AN ABRUPT END
TO (THE) LINE OF CASES" ON WHICH THE DISTRICT COURT RELIED.  IT HELD
THAT MUSSER SHOULD BE APPLIED RETROACTIVELY TO REGISTRANTS SUCH AS
PETITIONER WHO REFUSED INDUCTION BEFORE THE CASE WAS DECIDED, AND THAT
SINCE PETITIONER'S LOCAL BOARD WAS WITHOUT POWER TO RULE ON THE MERITS
OF A POST-INDUCTION ORDER CONSCIENTIOUS OBJECTOR CLAIM, HIS RIGHT TO IN
SERVICE REVIEW WAS NOT PREJUDICED.  ACCORDINGLY, IT REVERSED THE ORDER
OF THE DISTRICT COURT AND REMANDED THE CASE FOR TRIAL OR OTHER
PROCEEDINGS CONSISTENT WITH ITS OPINION. 

BECAUSE OF AN APPARENT CONFLICT AMONG THE COURTS OF APPEALS
CONCERNING THE QUESTION WHETHER THE DOUBLE JEOPARDY CLAUSE PERMITS AN
APPEAL UNDER 3731 FROM A PRETRIAL ORDER DISMISSING AN INDICTMENT IN
THESE CIRCUMSTANCES, WE GRANTED CERTIORARI.  PETITIONER DID NOT SEEK
REVIEW OF, AND WE EXPRESS NO OPINION WITH RESPECT TO, THE HOLDING OF
THE COURT OF APPEALS ON THE MERITS. 

        II 

PRIOR TO 1971, APPEALS BY THE UNITED STATED IN CRIMINAL CASES WERE
RESTRICTED BY 18 U.S.C. 3731 TO CATEGORIES DESCRIPTIVE OF THE ACTION
TAKEN BY A DISTRICT COURT, AND THEY WERE DIVIDED BETWEEN THIS COURT AND
THE COURTS OF APPEALS.  /7/ IN UNITED STATES V. SISSON, 399 U.S. 367,
307 - 308 (1970), MR. JUSTICE HARLAN APTLY DESCRIBED THE SITUATION
OBTAINING UNDER THE STATUTE AS IT THEN READ: 

     " CLARITY IS TO BE DESIRED IN ANY STATUTE, BUT IN MATTERS OF

  JURISDICTION IT IS ESPECIALLY IMPORTANT.  OTHERWISE THE COURTS

  AND THE PARTIES MUST EXPEND GREAT ENERGY, NOT ON THE MERITS OF

DISPUTE SETTLEMENT, BUT ON SIMPLY DECIDING WHETHER A COURT HAS

  THE POWER TO HEAR A CASE.  WHEN JUDGED IN THESE TERMS, THE

  CRIMINAL APPEALS ACT IS A FAILURE.  BORN OF COMPROMISE, AND

  REFLECTING NO COHERENT ALLOCATION OF APPELLATE RESPONSIBILITY,

  THE CRIMINAL APPEALS ACT PROVED A MOST UNRULY CHILD THAT HAS NOT

  IMPROVED WITH AGE.  THE STATUTE'S ROOTS ARE GROUNDED IN PLEADING

  DISTINCTIONS THAT EXISTED AT COMMON LAW BUT WHICH, IN MOST

  INSTANCES, FAIL TO COINCIDE WITH THE PROCEDURAL CATEGORIES OF THE

  FEDERAL RULES OF CRIMINAL PROCEDURE.  NOT ONLY DOES THE STATUTE

CREATE UNCERTAINTY BY ITS REQUIREMENT THAT ONE ANALYZE THE NATURE

  OF THE DECISION OF THE DISTRICT COURT IN ORDER TO DETERMINE

  WHETHER IT FALLS WITHIN THE CLASS OF COMMON-LAW DISTINCTIONS FOR

  WHICH AN APPEAL IS AUTHORIZED, BUT IT HAS ALSO ENGENDERED

  CONFUSION OVER THE COURT TO WHICH AN APPEALABLE DECISION SHOULD

  BE BROUGHT." 

AT THE SAME TIME THAT THIS COURT WAS STRUGGLING WITH THE "COMMON LAW
DISTINCTIONS" OF FORMER 3731, THE DECISIONS OF THE COURTS OF APPEALS
WERE DEMONSTRATING THAT, EVEN WHEN APPARENTLY STRAIGHTFORWARD, THE
LANGUAGE OF THE STATUTE WAS DECEPTIVE.  THUS, ALTHOUGH AFTER 1948 /8/
3731 LITERALLY AUTHORIZED AN APPEAL TO A COURT OF APPEALS WHENEVER AN
INDICTMENT OR INFORMATION WAS SET ASIDE OR DISMISSED EXCEPT WHERE
DIRECT APPEAL TO THIS COURT WAS AUTHORIZED, THAT PROVISION WAS
GENERALLY CONSTRUED, AS IT WAS CONSTRUED BY THE COURT OF APPEALS IN
THIS CASE, SUPRA, AT 381 AND N. 4, TO AUTHORIZE AN APPEAL TO A COURT OF
APPEALS ONLY IF THE DECISION SETTING ASIDE OR DISMISSING AN INDICTMENT
OR INFORMATION WAS "BASED UPON A DEFECT IN THE INDICTMENT OR
INFORMATION, OR IN THE INSTITUTION OF THE PROSECUTION."  UNITED STATES
V. APEX DISTRIBUTING CO., 270 F.2D 747, 755 (CA9 1959).  SEE UNITED
STATES V. PONTO, 454 F.2D 657, 659 - 663 (CA7 1971).  IN SUCH FASHION,
EVEN THOSE "COMMON LAW DISTINCTIONS" WHICH WERE REMOVED FROM THE FACE
OF THE CRIMINAL APPEALS ACT BY THE 1948 AMENDMENTS WERE PRESERVED BY
JUDICIAL CONSTRUCTION.  SEE UNITED STATES V. APEX DISTRIBUTING CO.,
SUPRA, AT 751 - 755; UNITED STATES V. DI STEFANO, 464 F.2D 845, 847 -
848 (CA2 1972). 

THE LIMITS OF THE APPELLATE JURISDICTION OF THIS COURT AND THE
COURTS OF APPEALS UNDER FORMER 3731, AS CONSTRUED, RESULTED IN THE
INABILITY OF THE UNITED STATES TO APPEAL FROM THE DISMISSAL OF
PROSECUTION IN A SUBSTANTIAL NUMBER OF CRIMINAL CASES.  IN THOSE CASES
WHERE APPELLATE JURISDICTION LAY IN THIS COURT, REVIEW WAS LIMITED
FURTHER BY DECISIONS OF "THE UNITED STATES NOT TO APPEAL THE DISMISSAL
OF A PROSECUTION BELIEVED TO BE ERRONEOUS, SIMPLY BECAUSE THE QUESTION
INVOLVED (WAS) NOT DEEMED OF SUFFICIENTLY GENERAL IMPORTANCE TO
WARRANT" OUR ATTENTION.  /9/ 

IT WAS AGAINST THIS BACKGROUND THAT CONGRESS UNDERTOOK TO AMEND
3731.  THE LEGISLATIVE HISTORY OF THE 1970 AMENDMENTS INDICATES THAT
CONGRESS WAS CONCERNED WITH WHAT IT PERCEIVED TO BE TWO MAJOR PROBLEMS
UNDER THE STATUTE AS THEN CONSTRUED:  LACK OF APPEALABILITY IN MANY
CASES, AND THE REQUIREMENT THAT CERTAIN APPEALS COULD BE TAKEN ONLY TO
THIS COURT.  SEE S. REP. NO. 91 - 1296, PP. 4 - 13, 13 - 18 (1970). 
PARTICULAR CONCERN WAS EXPRESSED WITH RESPECT TO PROBLEMS OF
APPEALABILITY "IN SELECTIVE SERVICE CASES WHERE JUDGES HAVE REVIEWED
DEFENDANTS' SELECTIVE SERVICE FILES BEFORE TRIALS AND DISMISSED THE
INDICTMENTS AFTER FINDING THAT THERE HAVE BEEN ERRORS BY THE DRAFT
BOARDS."  ID., AT 14.  CONGRESS WAS OF THE VIEW THAT "EARLIER VERSIONS
OF SECTION 3731" HAD BEEN SUBJECT TO "RESTRICTIVE JUDICIAL
INTERPRETATIONS OF CONGRESSIONAL INTENT."  ID., AT 18.  ACCORDINGLY, IT
DETERMINED TO "ASSURE THAT THE UNITED STATES MAY APPEAL FROM THE
DISMISSAL OF A CRIMINAL PROSECUTION BY A DISTRICT COURT IN ALL CASES
WHERE THE CONSTITUTION PERMITS," AND THAT "THE APPEAL SHALL BE TAKEN
FIRST TO A COURT OF APPEALS."  ID., AT 2 - 3.  SEE ID., AT 18. 

IN LIGHT OF THE LANGUAGE OF THE PRESENT VERSION OF 3731, INCLUDING THE
ADMONITION THAT ITS PROVISIONS "SHALL BE LIBERALLY CONSTRUED TO
EFFECTUATE ITS PURPOSES," AND OF ITS LEGISLATIVE HISTORY, /10/ IT IS
CLEAR TO US THAT CONGRESS INTENDED TO AUTHORIZE AN APPEAL TO A COURT OF
APPEALS IN THIS KIND OF CASE SO LONG AS FURTHER PROSECUTION WOULD NOT
BE BARRED BY THE DOUBLE JEOPARDY CLAUSE.  /11/ WE TURN TO THAT
INQUIRY. 

        III 

ALTHOUGH ARTICULATED IN DIFFERENT WAYS BY THIS COURT, THE PURPOSES OF,
AND THE POLICIES WHICH ANIMATE, THE DOUBLE JEOPARDY CLAUSE IN THIS
CONTEXT ARE CLEAR.  " THE CONSTITUTIONAL PROHIBITION AGAINST 'DOUBLE
JEOPARDY' WAS DESIGNED TO PROTECT AN INDIVIDUAL FROM BEING SUBJECTED TO
THE HAZARDS OF TRIAL AND POSSIBLE CONVICTION MORE THAN ONCE FOR AN
ALLEGED OFFENSE.  . . . THE UNDERLYING IDEA, ONE THAT IS DEEPLY
INGRAINED IN AT LEAST THE ANGLO-AMERICAN SYSTEM OF JURISPRUDENCE, IS
THAT THE STATE WITH ALL ITS RESOURCES AND POWER SHOULD NOT BE ALLOWED
TO MAKE REPEATED ATTEMPTS TO CONVICT AN INDIVIDUAL FOR AN ALLEGED
OFFENSE, THEREBY SUBJECTING HIM TO EMBARRASSMENT, XPENSE AND ORDEAL AND
COMPELLING HIM TO LIVE IN A CONTINUING STATE OF ANXIETY AND INSECURITY,
AS WELL AS ENHANCING THE POSSIBILITY THAT EVEN THOUGH INNOCENT HE MAY
BE FOUND GUILTY."  GREEN V. UNITED STATES, 355 U.S. 184, 187 - 188
(1957).  SEE UNITED STATES V. JORN, 400 U.S. 470, 479 (1971); PRICE V.
GEORGIA, 398 U.DX. 323, 326 (1970). 

AS AN AID TO THE DECISION OF CASES IN WHICH THE PROHIBITION OF THE
DOUBLE JEOPARDY CLAUSE HAS BEEN INVOKED, THE COURTS HAVE FOUND IT
USEFUL TO DEFINE A POINT IN CRIMINAL PROCEEDINGS AT WHICH THE
CONSTITUTIONAL PURPOSES AND POLICIES ARE IMPLICATED BY RESORT TO THE
CONCEPT OF O"ATTACHMENT OF JEOPARDY."  SEE UNITED STATES V. JORN,
SUPRA, AT 480.  IN THE CASE OF A JURY TRIAL, JEOPARDY ATTACHES WHEN A
JURY IS EMPANELED AND SWORN.  DOWNUM V. UNITED STATES, 372 U.S. 734
(1963); ILLINOIS V. SOMERVILLE, 410 U.S. 458 (1973).  IN A NONJURY
TRIAL, JEOPARDY ATTACHES WHEN THE COURT BEGINS TO HEAR EVIDENCE.  MC
CARTHY V. ZERBST, 85 F.2D 640, 642 (CA10 1936).  SEE WADE V. HUNTER,
336 U.S. 684, 688 (1949).  THE COURT HAS CONSISTENTLY ADHERED TO THE
VIEW THAT JEOPARDY DOES NOT ATTACH, AND THE CONSTITUTIONAL PROHIBITION
CAN HAVE NO APPLICATION, UNTIL A DEFENDANT IS "PUT TO TRIAL BEFORE THE
TRIER OF OTHE FACTS, WHETHER THE TRIER BE A JURY OR A JUDGE."  UNITED
STATES V. JORN, SUPRA, AT 479.  SEE KEPNER V. UNITED STATES, 195 U.S.
100, 128, 130 - 131 (1904); UNITED STATES V. MACDONALD, 207 U.S. 120,
127 (1907); BASSING V. CADY, 208 U.S. 386, 391 - 392 (1908); COLLINS V.
LOISEL, 262 U.S. 426, 429 (1923).  /12/     UNDER OUR CASES JEOPARDY
HAD NOT YET ATTACHED WHEN THE DISTRICT COURT GRANTED PETITIONER'S
MOTION TO DISMISS THE INDICTMENT.  PETITIONER WAS NOT THEN, NOR HAS HE
EVER BEEN, "PUT TO TRIAL BEFORE THE TRIER OF FACTS."  THE PROCEEDINGS
WERE INITIATED BY HIS MOTION TO DISMISS THE INDICTMENT.  PETITIONER HAD
NOT WAIVED HIS RIGHT TO A JURY TRIAL, AND, OF COURSE, A JURY TRIAL
COULD NOT OBE WAIVED BY HIM WITHOUT THE CONSENT OF THE GOVERNMENT AND
OF THE COURT.  FED. RULE CRIM. PROC. 23(A).  SEE PATTON V. UNITED
STATES, 281 U.S. 276, 312 (1930); SINGER V. UNITED STATES, 380 U.S. 24
(1965).  IN SUCH CIRCUMSTANCES, THE DISTRICT COURT WAS WITHOUT POWER TO
MAKE ANY DETERMINATION REGARDING PETITIONER'S GUILT OR INNOCENCE. 
PETITIONER'S DEFENSE WAS RAISED BEFORE TRIAL PRECISELY OBECAUSE "TRIAL
OF THE FACTS SURROUNDING THE COMMISSION OF THE ALLEGED OFFENSE WOULD BE
OF NO ASSISTANCE IN DETERMINING" ITS VALIDITY.  UNITED STATES V.
COVINGTON, 395 U.S. 57, 60 (1969).  SEE FED. RULE CRIM. PROC.
12(B)(1).  /13/ HIS MOTION TO POSTPONE THE TRIAL WAS PREMISED ON THE
BELIEF THAT "THE EXPEDITIOUS ADMINISTRATION OF JUSTICE WILL BE SERVED
BEST BY CONSIDERING THE MOTION (TO DISMISS THE INDICTMENT) PRIOR TO
TRIAL."  AT NO TIME DURING OR FOLLOWING THE HEARING ON PETITIONER'S
MOTION TO DISMISS THE INDICTMENT DID THE DISTRICT COURT HAVE
JURISDICTION TO DO MORE THAN GRANT OR DENY THAT MOTION, AND NEITHER
BEFORE NOR AFTER THE RULING DID JEOPARDY ATTACH. 

        IV 

PETITIONER ACKNOWLEDGED THAT "FORMAL OR TECHNICAL JEOPARDY HAD NOT
ATTACHED" AT THE TIME THE DISTRICT COURT RULED ON HIS MOTION TO DISMISS
THE INDICTMENT.  HOWEVER, HE ARGUES THAT BECAUSE THAT RULING WAS BASED
ON "'EVIDENTIARY FACTS OUTSIDE OF THE INDICTMENT, WHICH FACTS WOULD
CONSTITUTE A DEFENSE ON THE MERITS AT TRIAL,' UNITED STATES V.
BREWSTER, 408 U.S. 501, 506"  (1972), IT WAS THE "FUNCTIONAL EQUIVALENT
OF AN ACQUITTAL ON THE MERITS" AND "CONSTRUCTIVELY JEOPARDY HAD
ATTACHED."  THE ARGUMENT IS GROUNDED ON TWO BASIC AND INTERRELATED
PREMISES.  FIRST, PETITIONER ARGUES THAT THE COURT HAS ADMONISHED
AGAINST THE USE OF "TECHNICALITIES" IN INTERPRETING THE DOUBLE JEOPARDY
CLAUSE, AND HE CONTENDS THAT THE NORMAL RULE AS TO THE ATTACHMENT OF
JEOPARDY IS MERELY A PRESUMPTION WHICH IS REBUTTABLE IN CASES WHERE AN
ANALYSIS OF THE RESPECTIVE INTERESTS OF THE GOVERNMENT AND THE ACCUSED
INDICATES THAT THE POLICIES OF THE DOUBLE JEOPARDY CLAUSE WOULD BE
FRUSTRATED BY FURTHER PROSECUTION.  CF. UNITED STATES V. VELAZQUEZ, 490
F.2D 29, 33 (CA2 1973).  SECOND, PETITIONER MAINTAINS THAT THE
DISPOSITION OF HIS MOTION TO DISMISS THE INDICTMENT WAS, IN THE
CIRCUMSTANCES OF THIS CASE, THE "FUNCTIONAL EQUIVALENT OF AN ACQUITTAL
ON THE MERITS," AND HE CONCLUDES THAT THE POLICIES OF THE DOUBLE
JEOPARDY CLAUSE WOULD IN FACT BE FRUSTRATED BY FURTHER PROSECUTION. 
SEE UNITED STATES V. PONTO, 454 F.2D 657, 663 - 664 (CA7 1971).  WE
DISAGREE WITH BOTH OF PETITIONER'S PREMISES AND WITH HIS CONCLUSION. 

IT IS TRUE THAT WE HAVE DISPARAGED "RIGED, MECHANICAL" RULES IN THE
INTERPRETATION OF THE DOUBLE JEOPARDY CLAUSE.  ILLINOIS V. SOMERVILLE,
410 U.S. 458, 467 (1973).  HOWEVER, WE ALSO OBSERVED IN THAT CASE THAT
"THE CONCLUSION THAT JEOPARDY HAS ATTACHEDE BEGINS, RATHER THEN ENDS,
THE INQUIRY AS TO WHETHER THE DOUBLE JEOPARDY CLAUSE BARS RETRIAL." 
IBID. CF. UNITED STATES V. SISSON, 399 U.S., AT 303.  IMPLICIT IN THE
LATTER STATEMENT IS THE PREMISE THAT THE "CONSTITUTIONAL POLICIES
UNDERPINNING THE FIFTH AMENDMENT'S GUARANTEE" ARE NOT IMPLICATED BEFORE
THAT POINT IN THE PROCEEDINGS AT WHICH "JEOPARDY ATTACHES."  UNITED
STATES V. JORN, 400 U.S., AT 480.  AS WE HAVE NOTED ABOVE, THE COURT
HAS CONSISTENTLY ADHERED TO THE VIEW THAT JEOPARDY DOES NOT ATTACH
UNTIL A DEFENDANT IS "PUT TO TRIAL BEFORE THE TRIER OF THE FACTS,
WHETHER THE TRIER BE A JURY OR A JUDGE."  ID., AT 479.  THIS IS BY NO
MEANS A MERE TECHNICALITY, NOR IS IT A "RIGID, MECHANICAL" RULE.  IT
IS, OF COURSE, LIKE MOST LEGAL RULES, AN ATTEMPT TO IMPART CONTENT TO
AN ABSTRACTIONL. 

WHEN A CRIMINAL PROSECUTION IS TERMINATED PRIOR TO TRIAL, AN ACCUSED
IS OFTEN SPARED MUCH OF THE EXPENSE, DELAY, STRAIN, AND EMBARRASSMENT
WHICH ATTEND A TRIAL.  SEE GREEN V. UNITED STATES, 355 U.S., AT 187 -
188; UNITED STATES V. JORN, SUPRA, AT 479.  ALTHOUGH AN ACCUSED MAY
RAISE DEFENSES OR OBJECTIONS BEFORE TRIAL WHICH ARE "CAPABLE OF
DETERMINATION WITHOUT THE TRIAL OF THE GENERAL ISSUE,"  FED. RULE CRIM.
PROC. 12(B)(1), AND ALTHOUGH HE MUST RAISE CERTAIN OTHER DEFENSES OR
OBJECTIONS BEFORE TRIAL, FED. RULE CRIM. PROC. 12 (B)(2), IN NEITHER
CASE IS HE "SUBJECTED TO THE HAZARDS OF TRIAL AND POSSIBLE
CONVICTION."  GREEN V. UNITED STATES, SUPRA, AT 187.  MOREOVER, IN
NEITHER CASE WOULD AN APPEAL BY THE UNITED STATES "ALLOW THE PROSECUTOR
TO SEEK TO PERSUADE A SECOND TRIER OF FACT OF THE DEFENDANT'S GUILT
AFTER HAVING FAILED WITH THE FIRST."  UNITED STATES V. WILSON, ANTE, AT
352.  SEE UNITED STATES V. JORN, SUPRA, AT 484.  BOTH THE HISTORY OF
THE DOUBLE JEOPARDY CLAUSE AND ITS TERMS DEMONSTRATE THAT IT DOES NOT
COME INTO PLAY UNTIL A PROCEEDING BEGINS BEFORE A TRIER "HAVING
JURISDICTION TO TRY THE QUESTION OF THE GUILT OR INNOCENCE OF THE
ACCUSED."  KEPNER V. UNITED STATES, 195 U.S., AT 133.  SEE PRICE V.
GEORGIA, 398 U.S., AT 329.  WITHOUT RISK OF A DETERMINATION OF GUILT,
JEOPARDY DOES NOT ATTACH, AND NEITHER AN APPEAL NOR FURTHER PROSECUTION
CONSTITUTES DOUBLE JEOPARDY. 

PETITIONER'S SECOND PREMISE, THAT THE DISPOSITION OF HIS MOTION TO
DISMISS THE INDICTMENT WAS THE "FUNCTIONAL EQUIVALENT OF AN ACQUITTAL
ON THE MERITS," AND HIS CONCLUSION THAT THE POLICIES OF THE DOUBLE
JEOPARDY CLAUSE WOULD BE FRUSTRATED BYO FURTHER PROSECUTION IN HIS CASE
NEED NOT, IN LIGHT OF OTHE CONCLUSION WE REACH ABOVE, LONG DETAIN US.
IT IS, OF COURSE, SETTLED THAT "A VERDICT OF ACQUITTAL . . . IS A BAR
TO A SUBSEQUENT PROSECUTION FOR THE SAME OFFENCE."  UNITED STATES V.
BALL, 163 U.S. 662, 671 (1896); GREEN V. UNITED STATES, SUPRA AT 188. 
CF. DEPNER V. UNITED STATES, SUPRA; FONG FOO V. UNITED STATES, 369 U.S.
141 (1962).  BUT THE LANGUAGE OF CASES IN WHICH WE HAVE HELD THAT THERE
CAN BE NO APPEAL FROM, OR FURTHER PROSECUTION AFTER, AN "ACQUITTAL"
CANNOT BE DIVORCED FROM THE PROCEDURAL CONTEXT IN WHICH THE ACTION SO
CHARACTERIZED WAS TAKEN.  SEE UNITED STATES V. WILSON, ANTE, AT 346 -
348.  THE WORD ITSELF HAS NO TALISMANIC QUALITY FOR PURPOSES OF THE
DOUBLE JEOPARDY CLAUSE.  COMPARE UNITED STATES V. OPPENHEIMER, 242 U.S.
85, 88 (1916), WITH UNITED STATES V. BARBER, 219 U.S. 72, 78 (1911),
AND UNITED STATES V. GOLDMAN, 277 U.S. 229, 236 - 237 (1928).  IN
PARTICULAR, IT HAS NO SIGNIFICANCE IN THIS CONTEXT UNLESS JEOPARDY HAS
ONCE ATTACHED AND AN ACCUSED HAS BEEN SUBJECTED TO THE RISK OF
CONVICTION. 

OUR DECISION IN UNITED STATES V. SISSON, 399 U.S. 267 (1970), IS NOT
TO THE CONTRARY.  AS WE HAVE NOTED INP UNITED STATES V. WILSON, ANTE,
AT 350 - 351, WE DO NOT BELIEVE THE COURT IN SISSON INTENDED TO EXPRESS
AN OPINION WITH RESPECT TO THE CONSTITUTIONALITY OF AN APPEAL BY THE
UNITED STATES FROM THE ORDER ENTERED BYO THE DISTRICT COURT IN THAT
CASE.  MOREOVER, EVEN IF WE WERE TO TAKE THE CONTRARY VIEW WE WOULD
REACH THE SAME CONCLUSION HERE.  FOR IN SISSON, JEOPARDY HAD ATTACHED;
THE ORDER OF THE DISTRICT COURT WAS "A LEGAL DETERMINATION ON THE BASIS
OF FACTS ADDUCED AT THE TRIAL RELATING TO THE GENERAL ISSUE OF THE
CASE."  399 U.S., AT 290 N. 19.  SEE ID., AT 288; UNITED STATES V.
JORN, SUPRA, AT 478 N. 7.  WHATEVER ELSE MAY BE SAID ABOUT SISSON, /14/
IT DOES NOT ALTER THE FUNDAMENTAL PRINCIPLE THAT AN ACCUSED MUST SUFFER
JEOPARDY BEFORE HE CAN SUFFER DOUBLE JEOPARDY. 

SIMILARLY, PETITIONER'S RELIANCE ON UNITED STATES V. BREWSTER, 408
U.S. 501 (1972), IS MISPLACED.  THE QUESTION IN THAT CASE WAS WHETHER
THE COURT HAD "JURISDICTION UNDER 18 U.S.C. 3731 (1964 ED., SUPP. V) TO
REVIEW THE DISTRICT COURT'S (PRETRIAL) DISMISSAL OF THE INDICTMENT
AGAINST APPELLEE."  ID., AT 504 - 505.  IN THE COURSE OF CONCLUDING
THAT THERE WAS JURISDICTION, WE OBSERVED:

" UNDER UNITED STATES V. SISSON, 399 U.S. 267 (1970), AND APPEAL
DOES NOT LIE FROM A DECISION THAT RESTS, NOT UPON THE SUFFICIENCY OF
THE INDICTMENT ALONE, BUT UPON EXTRANEOUS FACTS.  IF AN INDICTMENT IS
DISMISSED AS A RESULT OF A STIPULATED FACT OR THE SHOWING OF
EVIDENTIARY FACTS OUTSIDE THE INDICTMENT, WHICH FACTS WOULD CONSTITUTE
A DEFENSE ON THE MERITS AT TRIAL, NO APPEAL IS AVAILABLE.  SEE UNITED
STATES V. FINDLEY, 439 F. 2D 970 (CA1 1971)."  408 U.S., AT 506.  THE
QUESTION AT ISSUE IN BREWSTER, THE QUESTION DECIDED IN SISSON, AND THE
CITATION OF UNITED STATES V. FINDLEY, /15/ DEMONSTRATE BEYOND QUESTION
THAT THIS PASSAGE IN BREWSTER WAS NOT CONCERNED WITH THE CONSTITUTIONAL
QUESTION WHICH, BY VIRTUE OF THE 1970 AMENDMENTS TO 18 U.S.C. 3731, IS
BEFORE US IN THIS CASE. 

        V 

IN HOLDING THAT THE COURT OF APPEALS CORRECTLY DETERMINED THAT IT
HAD JURISDICTION OF THE UNITED STATES' APPEAL IN THIS CASE UNDER 18
U.S.C. 3731, WE OF COURSE EXPRESS NO OPINION ON THE QUESTION WHETHER A
SIMILAR RULING BY THE DISTRICT COURT AFTER JEOPARDY HAD ATTACHED WOULD
HAVE BEEN APPEALABLE.  NOR DO WE INTIMATE ANY VIEW CONCERNING THE CASE
PUT BY THE SOLICITOR GENERAL, OF "A DEFENDANT WHO IS AFFORDED AN
OPPORTUNITY TO OBTAIN A DETERMINATION OF A LEGAL DEFENSE PRIOR TO TRIAL
AND NEVERTHELESS KNOWINGLY ALLOWS HIMSELF TO BE PLACED IN JEOPARDY
BEFORE RAISING THE DEFENSE."  COMPARE UNITED STATES V. FINDLEY, 439
F.2D 970, 973 (CA1 1971), WITH UNITED STATES V. PECORA, 484 F.2D, AT
1293 - 1294.  SEE UNITED STATES V. JENKINS, 490 F.2D 868, 880 (C.A.2
1973), AFF'D, ANTE, P. 358.  WE HOLD ONLY THAT THE DOUBLE JEOPARDY
CLAUSE DOES NOT BAR AN APPEAL BY THE UNITED STATES UNDER 18 U.S.C. 3731
WITH RESPECT TO A CRIMINAL DEFENDANT WHO HAS NOT BEEN "PUT TO TRIAL
BEFORE THE TRIER OF THE FACTS, WHETHER THE TRIER BE A JURY OR A
JUDGE."  UNITED STATES V. JORN, 400 U.S., AT 479. 

                                 AFFIRMED. 

/1/ THE DISTRICT COURT CONCLUDED THAT PETITIONER'S DEFENSE WAS
PROPERLY RAISED BY MOTION BEFORE TRIAL AND THAT, ALTHOUGH PETITIONER
HAD NOT WAIVED HIS RIGHT TO TRIAL BY JURY, HIS DEFENSE WAS PROPERLY TO
BE DETERMINED BY THE COURT.  FED. RULES CRIM. PROC. 12(B)(1), (4). 
COMPARE UNITED STATES V. PONTO, 454 F. 2D 657, 663 (CA7 1971), WITH
UNITED STATES V. RAMOS, 413 F. 2D 743, 744 N.1 (CA1 1969).  SEE UNITED
STATES V. COVINGTON, 395 U.S. 57, 60 (1969); UNITED STATES V. SISSON,
399 U.S. 267, 301 (1970); UNITED STATES V. KNOX, 396 U.S. 77, 83
(1969); 8 J. MOORE, FEDERAL PRACTICE 12.04 (2D ED. 1975). 

/2/ IN ORDERING DISMISSAL THE DISTRICT COURT RELIED PRIMARILY ON
UNITED STATES V. ZISKOWSKI, 465 F. 2D 480 (CA3 1972), AND UNITED STATES
V. FOLINO, NO. 72 - 1974 (CA3 JUNE 29, 1973) (UNURPORTED). 

/3/ TITLE 18 U.S.C. 3731 PROVIDES IN PERTINENT PART: 

" IN A CRIMINAL CASE AN APPEAL BY THE UNITED STATES SHALL LIE TO A
COURT OF APPEALS FROM A DECISION, JUDGMENT, OR ORDER OF A DISTRICT
COURT DISMISSING AN INDICTMENT OR INFORMATION AS TO ANY ONE OR MORE
COUNTS, EXCEPT THAT NO APPEAL SHALL LIE WHERE THE DOUBLE JEOPARDY
CLAUSE OF THE UNITED STATES CONSTITUTION PROHIBITS FURTHER
PROSECUTION. 

" THE PROVISIONS OF THIS SECTION SHALL BE LIBERALLY CONSTRUED TO
EFFECTUATE ITS PURPOSES." 

/4/ PRIOR TO THE 1970 AMENDMENTS, WHICH WERE EFFECTIVE JANUARY 2,
1971, 18 U.S.C. 3731 (1964 ED., SUPP. V), AUTHORIZED AN APPEAL BY THE
UNITED STATES TO A COURT OF APPEALS IN ALL CRIMINAL CASES "(FROM A
DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING ANY INDICTMENT OR
INFORMATION, OR ANY COUNT THEREOF EXCEPT WHERE A DIRECT APPEAL TO THE
SUPREME COURT OF THE UNITED STATES IS PROVIDED BY THIS SECTION."  UNDER
THIS PROVISION, THE COURT OF APPEALS CONCLUDED, APPEALS "WERE
PERMISSIBLE ONLY IF THE DISMISSAL OF AN INDICTMENT WAS BASED UPON A
DEFECT IN THE INDICTMENT OR IN THE INSTITUTION OF THE PROSECUTION,
RATHER THAN UPON EVIDENTIARY FACTS OUTSIDE THE FACE OF THE INDICTMENT
WHICH WOULD POSSIBLY CONSTITUTE A DEFENSE AT TRIAL." 

/5/ THE COURT OF APPEALS NOTED THAT THE DISTRICT COURT "EXPRESSLY
FOUND THAT (PETITIONER) DID NOT WAIVE HIS RIGHT TO A JURY TRIAL," THAT
THE PROCEDURES FOR WAIVER REQUIRED BY FED. RULE CRIM. PROC. 23(A) HAD
NOT BEEN COMPLIED WITH, AND THAT SIMULTANEOUSLY WITH HIS MOTION TO
DISMISS THE INDICTMENT PETITIONER HAD FILED A MOTION TO POSTPONE THE
TRIAL. 

/6/ IN PECORA THE COURT OF APPEALS DISTINGUISHED UNITED STATES V.
HILL, 473 F.2D 759 (CA96 1972), HOLDING UNAPPEALABLE THE PRETRIAL
DISMISSAL OF AN INDICTMENT ALLEGING THE MAILING OF OBSCENE
ADVERTISEMENTS, ON THE GROUNDS THAT IN HILL (1) THERE WAS NO
DETERMINATION WHETHER THE DEFENDANT HAD WAIVED HIS RIGHT TO A JURY
TRIAL AND (2) THE DISTRICT COURT DETERMINED THE CHARACTER OF EVIDENCE
ACTUALLY ENTERED INTO THE RECORD "SO IT MAY BE SAID THAT JEOPARDY HAD
ATTACHED."  IN THIS CASE THE COURT OF O APPEALS CONCLUDED THAT THE
SECOND DISTINCTION BETWEEN PECORA AND HILL DID NOT "PERMIT OUR HOLDING
THE INSTANT ORDER UNAPPEALABLE," AND IT NOTED THAT TO THE EXTENT PECORA
AND HILL WERE INCONSISTENT, IT WAS BOUND BY PECORA.     /7/ TITLE 18
U.S.C. 3731 (1964 ED., SUPP. V) PROVIDED IN PERTINENT PART: 

" AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF OF THE UNITED STATES
FROM THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED
STATES IN ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES: 

" FROM A DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING ANY
INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF, WHERE SUCH DECISION OR
JUDGMENT IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED. 

" FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION FOR
INSUFFICIENCY OF THE INDICTMENT OR INFORMATION, WHERE SUCH DECISION IS
BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE
INDICTMENT OR INFORMATION IS FOUNDED. 

" FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT OBEEN PUT IN JEOPARDY. 

" AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS TO A COURT OF APPEALS 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 EXCEPT WHERE A DIRECT
APPEAL TO THE SUPREME COURT OF THE UNITED STATES IS PROVIDED BY THIS

" FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION EXCEPT WHERE A
DIRECT APPEAL TO THE SUPREME COURT OF THE UNITED STATES IS PROVIDED BY
THIS SECTION."  PROVISION FOR APPEALS IN CERTAIN CASES TO THE COURTS OF
APPEALS WAS FIRST MADE IN 1942.  ACT OF MAY 9, 1942, C. 295, 1 56 STAT.
271, CODIFIED AS FORMER 18 U.S.C. 682 (1946 ED.).  SECTION 682 PROVIDED
FOR AN APPEAL TO A COURT OF APPEALS FROM "A DECISION OR JUDGMENT
QUASHING, SETTING ASIDE, OR SUSTAINING A DEMURRER OR PLEA IN ABATEMENT
TO ANY INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF EXCEPT WHERE A
DIRECT APPEAL TO THE SUPREME COURT OF THE UNITED STATES IS PROVIDED BY
THIS SECTION." 

/8/ ACT OF JUNE 25, 1948, 62 STAT. 844, CODIFIED AS FORMER 18 U.S.C.
3731 (1946 ED., SUPP II).  THE REVISER'S NOTE STATES THAT "(M)  INOR
CHANGES WERE MADE TO CONFORM TO RULE 12 OF OTHE FEDERAL RULES OF
CRIMINAL PROCEDURE." 

/9/ DEPARTMENT OF JUSTICE COMMENTS ON S. 3132, IN S. REP. NO. 91 -
1296, P. 24 (1970).  SEE ALSO LETTER FROM SOLICITOR GENERAL GRISWOLD TO
SENATOR MC CLELLAN, ID., AT 33. 

/10/ THE RELEVANCE AND SIGNIFICANCE OF THE "WELL CONSIDERED AND
CAREFULLY PREPARED" REPORT OF OTHE SENATE JUDICIARY COMMITTEE, SEE
SCHWEGMANN BROS. V. CALVERT DISTILLERS CORP., 341 U.S. 384, 395 (1951)
(JACKSON, J., CONCURRING), IS NOT AFFECTED BY THE FACT THAT THE
AMENDMENTS PROPOSED BY THE COMMITTEE AND ADOPTED WITHOUT CHANGE BY THE
SENATE WERE MODIFIED BY THE HOUSE SENATE CONFERENCE COMMITTEE.  SEE
H.R. CONF. REP. NO. 91 - 1768, P. 21 (1970).  THE LATTER REPORT
CONTAINS NO EXPLANATION OF THE CHANGES MADE, AND THE CHANGES THEMSELVES
ARE CONSISTENT WITH THE INTENT EXPRESSED IN THE SENATE REPORT.  SEE
UNITED STATES V. WILSON, ANTE, AT 337 - 339. 

/11/ THIS HAS BEEN THE GENERAL VIEW OF THE COURTS OF APPEALS.  E.G.,
UNITED STATES V. JENKINS, 490 F.2D 868, 870 (CA2 1973), AFF'D, ANTE, P.
358; UNITED STATES V. BROWN, 481 F.2D 1035, 1039 - 1040 (CA8 1973). 
BUT SEE, E.G., UNITED STATES V. SOUTHERN R. CO., 485 F.2D 309, 312 (CA4
1973). 

/12/ TO THE EXTENT THE PASSAGES REFERRED TO DEAL WITH THE
PREDECESSORS OF THE PRESENT VERSION OF 3731, THEY ARE RELEVANT BECAUSE
OF THE COURT'S VIEW THAT APPEALS FROM ORDERS ENTERED PRIOR TO THE
ATTACHMENT OF JEOPARDY PRESENTED NO CONSTITUTIONAL PROBLEM.  SEE INFRA,
AT 392. 

/13/ PURSUANT TO 18 U.S.C. 3771 AND 3772, PROPOSED AMENDMENTS TO THE
FEDERAL RULES OF CRIMINAL PROCEDURE, INCLUDING AMENDMENTS TO RULE 12,
WERE TRANSMITTED TO CONGRESS ON APRIL 22, 1974.  THE EFFECTIVE DATE OF
THE PROPOSED AMENDMENTS WAS POSTPONED UNTIL AUGUST 1, 1975, BY ACT OF
JULY 30, 1974, STAT. 397. 

/14/ IT IS CLEAR THAT CONGRESS INTENDED TO OVERRULE SISSON'S
CONSTRUCTION OF FORMER 3731 IN THE 1970 AMENDMENTS.  SEE S. REP. NO. 91
- 1296, P. 11 (1970); N. 10, SUPRA. 

/15/ IN ANALYZING SISSON THE COURT OF APPEALS IN FINDLEY CONCLUDED:
" COLLECTIVELY WE BELIEVE THIS WAS AN APPROACH NOT IN TERMS OF DOUBLE
JEOPARDY, BUT IN TERMS OF THE KIND OF ERROR SECTION 3731 WAS INTENDED
TO COVER."  439 F.2D 970, 973. 

MR. JUSTICE DOUGLAS DISSENTS, BEING OF THE VIEW THAT THE RULING OF
THE DISTRICT COURT WAS BASED ON EVIDENCE WHICH COULD CONSTITUTE A
DEFENSE ON THE MERITS AND THEREFORE CAUSED JEOPARDY TO ATTACH. 

HARRY A. DOWER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS BARRY N. MOSEBACH. 

EDWARD R. KORMAN AUGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
PETERSEN, AND DEPUTY SOLICITOR GENERAL FREY. 
..END :














CHEMECHUEVI TRIBE OF INDIANS V. FPC, 420 U.S. 395 


       CHEMEHUEVI TRIBE OF INDIANS ET AL. V. FEDERAL POWER

           COMMISSION ET AL.

        CERTIROARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 73 - 1380.  ARGUED JANUARY 13, 1975--, DECIDED MARCH 3,

           1975; 160 U.S. APP. D.C. 83, 486 F.2D 1207, VACATED AND

           REMANDED. 

TOGETHER WITH NO. 73 - 1666, ARIZONA PUBLIC SERVICE CO. ET AL. V.
CHEMEHUEVI TRIBE OF INDIANS ET AL.; AND NO. 73 - 1667, FEDERAL POWER
COMMISSIONE V. CHEMEHUEVI TRIBE OF INDIANS ET AL., ALSO ON CERTIORARI
TO THE SAME COURT. 


    UNDER 4(E) OF PART I OF THE FEDERAL POWER ACT, THE FEDERAL

  POWER COMMISSION (FPC ) IS AUTHORIZED TO ISSUE LICENSES TO

  INDIVIDUALS, CORPORATIONS, OR GOVERNMENTAL UNITS ORGANIZED FOR

  THE PURPOSE OF CONSTRUCTING "PROJECT WORKS NECESSARY OR

  CONVENIENT . . . FOR THE DEVELOPMENT, TRANSMISSION, AND

  UTILIZATION OF POWER ACROSS, ALOND, FROM, OR IN ANY OF THE

  STREAMS OR OTHER BODIES OF WATER OVER WHICH CONGRESS HAS

  JURISDICTION . . . OR FOR THE PURPOSE OF UTILIZING THE SURPLUS

  WATER OR WATER POWER FROM ANY GOVERNMENT DAM . . . ."  SECTION

  23(B) PROHIBITS THE UNLICENSED CONSTRUCTION OF SUCH WORKS ON ANY

  NAVIGABLE STREAM AS WELL AS THE UNLICENSED UTILIZATION OF SUCH

  SURPLUS WATER FOR THE PURPOSES OF DEVELOPING ELECTRIC POWER. 

  HELD:  THESE PROVISIONS OF PART I OF THE ACT GIVING THE FPC

LICENSING JURISDICTION OVER HYDROELECTRIC FACILITIES DO NOT ALSO

  CONFER SUCH JURISDICTION OVER THERMAL-ELECTRIC POWER PLANTS.  PP.

  400 - 422. 

     (A) THE STRUCTURES CONSTITUTING THERMAL-ELECTRIC POWER PLANTS

  ARE NOT "PROJECT WORKS" WITHIN THE MEANING OF 4(E), AS IS CLEAR

  FROM THE LANGUAGE OF THAT PROVISION WHEN READ TOGETHER WITH THE

REST OF THE ACT (NONE OF WHOSE PROVISIONS REFERS TO THE

DEVELOPMENT OR CONSERVATION OF STEAM POWER), THE ACT'S

LEGISLATIVE HISTORY (WHICH MANIFESTS A CONGRESSIONAL INTENT TO

  REGULATE ONLY HYDROELECTRIC GENERATING FACILITIES), THE FPC'S

  CONSISTENT INTERPRETATION OF ITS AUTHORITY AS NOT INCLUDING

  JURISDICTION OVER THERMAL-ELECTRIC POWER PLANTS, AND THIS COURT'S

  DECISION IN FPC V. UNION ELECTRIC CO., 381 U.S. 90.  PP. 400 -

  412. 

     (B) THE SURPLUS WATER CLAUSE OF 4(E) DOES NOT AUTHORIZE FPC

  LICENSING OF WATER USED FOR COOLING PURPOSES IN THERMAL-ELECTRIC

POWER PLANTS, NOTHING IN THE ACT'S LANGUAGE OR LEGISLATIVE

  HISTORY DISCLOSING ANY CONGRESSIONAL INTENT THAT THAT CLAUSE

  SHOULD SERVE ANY BROADER INTERESTS THAN THE PROJECT WORKS

  CLAUSE.  AND, CONTRARY TO THE COURT OF APPEALS' HOLDING, THE ACT

  DOES NOT VEST THE FPC WITH ALL THE RESPONSIBILITIES THAT PRIOR

  LEGISLATION HAD GIVEN TO THE WATERWAYS COMMISSION,

  RESPONSIBILITIES THAT IN ANY CASE DID NOT INCLUDE LICENSING THE

  USE OF SURPLUS WATER BY STEAM PLANTS.  PP. 412 - 422. 

    STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL

  OTHER MEMBERS JOINED EXCEPT DOUGLAS, J., WHO TOOK NO PART IN THE

  CONSIDERATION OR DECISION OF THE CASES. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN THESE THREE CASES WE REVIEW A SINGLE JUDGMENT OF THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, TO DETERMINE WHETHER
THERMAL-ELECTRIC POWER GENERATING PLANTS THAT DRAW COOLING WATER FROM
NAVIGABLE STREAMS ARE SUBJECT TO THE LICENSING JURISDICTION OF THE
FEDERAL POWER COMMISSION UNDER PART I OF THE FEDERAL POWER ACT, C. 285,
41 STAT. 1063, AS AMENDED, 16 U.S.C. 791A-823. 

        I 

ON SEPTEMBER 20, 1971, TWO INDIAN TRIBES, FIVE INDIVIDUAL INDIANS,
AND TWO ENVIRONMENTAL GROUPS /1/ (HEREINAFTER THE COMPLAINANTS) FILED A
COMPLAINT WITH THE COMMISSION REQUESTING IT TO REQUIRE 10 PUBLIC
UTILITY COMPANIES LOCATED IN THE SOUTHWESTERN UNITED STATES /2/ TO
OBTAIN LICENSES FOR SIX FOSSIL-FUELED THERMAL-ELECTRIC GENERATING
PLANTS BEING CONSTRUCTED BY THE COMPANIES ALONG THE COLORADO RIVER AND
ITS TRIBUTARIES.  /3/ THE PLANTS ARE PART OF A PROJECTED VAST ELECTRIC
POWER COMPLEX, AND THE ENERGY GENERATED WITHIN THIS NEW SOUTHWESTERN
POWER POOL WILL BE TRANSMITTED IN INTERSTATE COMMERCE TO LOAD CENTERS
AS FAR AS 600 MILES FROM THE SITES 

THE SIX PLANTS INVOLVED IN THESE CASES, LIKE ALL THERMAL-ELECTRIC
POWER PLANTS, WILL REQUIRE LARGE AMOUNTS OF WATER TO COOL AND CONDENSE
THE STEAM UTILIZED IN THE PROCESS OF GENERATING ELECTRICITY.  SEE
GENERALLY 1 FPC, THE 1970 NATIONAL POWER SURVEY I - 10 - 1 TO I - 10 -
20.  THE WATER NEEDED FOR COOLING PURPOSES WILL BE OBTAINED BY
WITHDRAWING SUBSTANTIAL QUANTITIES OF WATER FROM THE COLORADO RIVER
SYSTEM.  THE COMPLAINT FILED WITH THE COMMISSION ASSERTED THAT IT HAD
LICENSING JURISDICTION OVER THE PLANTS PURSUANT TO 4(E) OF PART I OF
THE FEDERAL POWER ACT, 16 U.S.C. 797(E), BECAUSE ALL SIX PLANTS ARE
"PROJECT WORKS" FOR THE DEVELOPMENT, TRANSMISSION, AND UTILIZATION OF
POWER ACROSS AND ALONG NAVIGABLE WATERS, AND BECAUSE TWO OF THE PLANTS
WILL USE "SURPLUS WATER" IMPOUNDED BY A GOVERNMENT DAM.  /4/ 

THE COMMISSION ON NOVEMBER 4, 1971, ISSUED AN ORDER DISMISSING THE
COMPLAINT FOR LACK OF JURISDICTION.  THE COMMISSION STATED THAT "THE
LEGISLATIVE HISTORY (OF THE ORIGINAL FEDERAL WATER POWER ACT) SHOWS
THAT IT WAS NOT INTENDED THAT THE LICENSING OF THERMAL STATIONS BE
INCLUDED.  THIS CONSTRUCTION OF THE COMMISSION'S LICENSING JURISDICTION
UNDER PART I OF THE FEDERAL POWER ACT HAS BEEN THE LONG-STANDING
INTERPRETATION OF THE COMMISSION (AND) HAS BEEN RECOGNIZED FAVORABLY BY
THE SUPREME COURT."  6 F.P.C. 1126, 1127 (CITATIONS OMITTED). 

FOLLOWING DENIAL BY THE COMMISSION OF AN APPLICATION FOR A
REHEARING, 46 F.P.C. 1307, THE COMPLAINANTS FILED A PETITION IN THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT TO REVIEW THE
COMMISSION'S ORDER.  THE COURT OF APPEALS UNDERTOOK A SCHOLARLY AND
COMPREHENSIVE REVIEW OF THE EXECUTIVE AND LEGISLATIVE ANTECEDENTS OF
THE FEDERAL WATER POWER ACT OF 1920, AND TRACED IN DETAIL THE ACT'S
LEGISLATIVE HISTORY AND THE ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS
OF THE ACT SINCE ITS PASSAGE.  160 U.S. APP. D.C. 83, 489 F.2D 1207. 
BASED ON THIS COLUMINOUS MATERIAL, THE COURT OF APPEALS AFFIRMED THE
COMMISSION'S CONCLUSION THAT THERMAL-ELECTRIC PLANTS ARE NOT "PROJECT
WORKS" UNDER 4(E) AND THAT THE COMMISSION'S LICENSING JURISDICTION
UNDER THE CLAUSE EXTENDS ONLY TO HYDROELECTRIC GENERATING PLANTS.  "
STEAM PLANTS," THE COURT HELD, "WERE PURPOSELY OMITTED FROM THE
CONGRESSIONAL SCHEME."  60 U.S. APP. D.C., AT 107, 489 F.2D, AT 1231. 
THE COURT OF APPEALS ALSO HELD, HOWEVER, THAT THE COMMISSION'S
LICENSING AUTHORITY UNDER THE "SURPLUS WATER" CLAUSE OF 4(E) IS NOT
SIMILARLY LIMITED.  THE USE OF O"SURPLUS WATER" FOR COOLING PURPOSES BY
THERMAL-ELECTRIC GENERATING PLANTS IS SUFFICIENT, THE COURT CONCLUDED,
TO BRING THOSE PLANTS WITHIN THE COMMISSION'S LICENSING JURISDICTION. 
160 U.S. APP. D.C., AT 111 - 117, 489 F.2D, AT 1235 - 1241. 
ACCORDINGLY, THE COURT REMANDED THE CASE TO THE COMMISSION TO DETERMINE
IN THE FIRST INSTANCE WHETHER ANY OF OTHE SIX PLANTS INVOLVED IN THIS
CASE FALL UNDER THAT BRANCH OF ITS LICENSING AUTHORITY.  ID., AT 118,
489 F.2D, AT 1242.  WE GRANTED THE PARTIES' PETITIONS FOR WRITS OF
CERTIORARI TO CONSIDER THE IMPORTANT QUESTIONS OF STATUTORY
CONSTRUCTION PRESENTED BY THIS LITIGATION.  417 U.S. 944. 

        II 

THE QUESTION WHETHER THERMAL-ELECTRIC GENERATING PLANTS ARE SUBJECT
TO THE LICENSING JURISDICTION OF THE COMMISSION INVOLVES NO ISSUE AS TO
THE EXTENT OF CONGRESSIONAL POWER UNDER THE COMMERCE CLAUSE.  IT IS
WELL ESTABLISHED THAT THE INTERSTATE TRANSMISSION OF ELECTRIC ENERGY IS
FULLY SUBJECT TO THE COMMERCE POWER OF CONGRESS.  FPC V. UNION ELECTRIC
CO., 381 U.S. 90, 94; PUBLIC UTILITIES COMM'N V. ATTLEBORO STEAM &
ELEC.  CO., 273 U.S. 83, 86; ELECTRIC BOND & SHARE CO. V. SEC, 303 U.S.
419, 432 - 433.  AND IT IS EQUALLY CLEAR THAT PROJECTS GENERATING
ENERGY FOR INTERSTATE TRANSMISSION, SUCH AS THE SIX PLANTS INVOLVED IN
THIS CASE, AFFECT COMMERCE AMONG THE STATES AND ARE THEREFORE WITHIN
THE PURVIEW OF THE FEDERAL COMMERCE POWER, REGARDLESS OF WHETHER THE
PLANTS GENERATE ELECTRICITY BY STEAM OR HYDORELECTRIC POWER.  FPC V.
UNION ELECTRIC CO., SUPRA, AT 94 - 95; SEE NLRB V. JONES & LAUGHLIN
STEEL CORP., 301 U.S. 1, 40 - 41; KATZENBACH V. MC CLUNG, 379 U.S. 294,
301 - 304.  THE ONLY OQUESTION BEFORE US IS WHETHER CONGRESS HAS
EXERCISED THAT POWER IN PART I OF THE FEDERAL POWER ACT BY REQUIRING A
LICENSE FOR THE CONSTRUCTION AND OPERATION OF OTHERMAL-ELECTRIC POWER
GENERATING PLANTS THAT WITHDRAW LARGE QUANTITIES OF WATER FROM
NAVIGABLE WATERS FOR COOLING AND OTHER PLANT PURPOSES. 

        A 

CONSIDERATION OF THE COMMISSION'S STATUTORY LICENSING AUTHORITY
UNDER PART I OF THE FEDERAL POWER ACT MUST, OF COURSE, BEGIN WITH THE
LANGUAGE OF OTHE ACT ITSELF.  SECTION 4(E), 16 U.S.C. 797 (E),
AUTHORIZES THE COMMISSION TO ISSUE LICENSES TO INDIVIDUALS,
CORPORATIONS, OR GOVERNMENTAL UNITS ORGANIZED FOR THE PURPOSE OF
CONSTRUCTING "PROJECT WORKS NECESSARY OR CONVENIENT . . . FOR THE
DEVELOPMENT, TRANSMISSION, AND UTILIZATION OF POWER ACROSS, ALONG,
FROM, OR IN ANY OF THE STREAMS OR OTHER BODIES OF WATER OVER WHICH
CONGRESS HAS JURISDICTION . . . OR FOR THE PURPOSE OF UTILIZING THE
SURPLUS WATER OR WATER POWER FROM ANY GOVERNMENT DAM . . . ."  SECTION
23(B) OF THE ACT, 16 U.S.C. 817, IN TURN, PROHIBITS THE UNLICENSED
CONSTRUCTION OF SUCH WORKS ON ANY NAVIGABLE STREAM AS WELL AS THE
UNLICENSED UTILIZATION OF THE SURPLUS WATER FROM A GOVERNMENT DAM FOR
THE PURPOSE OF DEVELOPING ELECTRIC POWER.  /5/ " PORJECT" IS DEFINED AS
THE COMPLETE UNIT OF DEVELOPMENT OF A POWER PLANT, 16 U.S.C. 796(11);
AND "PROJECT WORKS" MEANS THE PHYSICAL STRUCTURE OF A PROJECT. 
976(12). 

EMPHASIZING THAT THESE PROVISIONS DO NOT REQUIRE THAT THE PROJECT
WORKS BE USED TO GENERATE "HYDROELECTRIC POWER," BUT RATHER MERELY
"POWER," THE COMPLAINANTS ASSERT THAT THE SIX THERMAL-ELECTRIC POWER
PLANTS IN THIS CASE FALL SQUARELY WITHIN THE STATUTORY LANGUAGE
DEFINING THE COMMISSION'S LICENSING JURISDICTION.  EACH OF THE THERMAL
ELECTRIC FACILITIES UNDOUBTEDLY QUALIFIES AS A "COMPLETE UNIT OF
DEVELOPMENT OF A POWER PLANT."  THE PHYSICAL STRUCTURE OF EACH
"PROJECT" THEREFORE MUST BE "PROJECT WORKS"  ALL CONCEDE THAT THE
PLANTS ARE LOCATED ON NAVIGABLE WATERS AND ARE ENGAGED IN THE
DEVELOPMENT OF ELECTRIC POWER.  FURTHERMORE, WATER IS AN INTEGRAL PART
OF THE GENERATION OF ELECTRICITY AT THE PLANTS, BEING USED TO CONDENSE
THE STEAM WHICH TURNS THE TURBINES.  THE COMPLAINANTS ASSERT THAT IT IS
"EQUALLY INDISPUTABLE" THAT THE SIX PLANTS ARE USING "SURPLUS WATER . .
. FROM (A) GOVERNMENT DAM" FOR THE PURPOSE OF DEVELOPING ELECTRIC
POWER.  /6/ 

SO LONG AS ADHERENCE TO THE LITERAL TERMS OF A STATUTE DOES NOT
BRING ABOUT A RESULT COMPLETELY AT VARIANCE WITH THE PURPOSE OF THE
STATUTE, THE COMPLAINANTS ARGUE, THERE IS NO JUSTIFICATION FOR
RESORTING TO EXTRINSIC AIDS SUCH AS LEGISLATIVE HISTORY TO DETERMINE
CONGRESSIONAL INTENT.  AND SINCE MODERN METHODS OF OPERATING THERMAL
ELECTRIC POWER GENERATING PLANTS PRESENT AN EVEN GREATER THREAT TO THE
CONSERVATION AND ORDERLY DEVELOPMENT OF THE POWER POTENTIAL IN
NAVIGABLE STREAMS THAN DO THE OPERATIONS OF HYDROELECTRIC PROJECTS, /7/
THEY ARGUE THAT RECOGNITION OF THE COMMISSION'S LICENSING JURISDICTION
OVER THERMAL-ELECTRIC PLANTS WILL ACTUALLY ADVANCE THE PRINCIPAL
PURPOSES OF THE ACT. 

THE COMPLAINANTS' RELIANCE ON THE LITERAL LANGUAGE OF 4(E) AND ON
THE SO-CALLED "PLAIN MEANING" RULE OF STATUTORY CONSTRUCTION IS NOT
ENTIRELY UNPERSUASIVE.  BUT THEIR ASSERTION THAT THERMAL-ELECTRIC POWER
PLANTS DRAWING COOLING WATER FROM NAVIGABLE STREAMS ARE UNAMBIGUOUSLY
INCLUDED WITHIN THE COMMISSION'S LICENSING JURISDICTION IS REFUTED WHEN
4(E) IS READ TOGETHER WITH THE REST OF THE ACT, AS, OF COURSE, IT MUST
BE.  SEE, E.G., CHEMICAL WORKERS V. PITTSBURGH GLASS, 404 U.S. 157,
185; UNITED STATES V. BOISDORE'S HEIRS, 8 HO%. 113, 122. 

POWER HOUSES, TRANSMISSION LINES, OR OTHER PROJECT WORKS."  THE TERMS
THAT PRECEDE "OTHER PROJECT WORKS," AND WHICH THEREFORE INDICATE A
CONGRESSIONAL INTENT TO LIMIT THE BREADTH OF THAT GENERAL PHRASE, SEE
GOOCH V. UNITED STATES, 297 U.S. 124, 128, REFER TO FEATURES ORDINARILY
ASSOCIATED WITH HYDROELECTRIC FACILITIES.  THE DEFINITION OF PROJECT"
IN 16 U.S.C. 796(11) SIMILIARLY REFERS TO STRUCTURES NORMALLY FOUND IN
HYDRO-ELECTRIC POWER COMPLEXES:  A "PROJECT" IS THE "COMPLETE UNIT OF
IMPROVEMENT OR DEVELOPMENT, CONSISTING OF A POWER HOUSE, ALL WATER
CONDUITS, ALL DAMS AND APPURTENANT WORKS AND STRUCTURES (INCLUDING
NAVIGATION STRUCTURES) WHICH ARE A PART OF SAID UNIT, AND ALL STORAGE,
DIVERTING, OR FOREBAY RESERVOIRS DIRECTLY CONNECTED THEREWITH . . . ." 
ALTHOUGH THE COMPLAINANTS NOTE THAT A POWER DEVELOPMENT UTILIZING STEAM
AS A GENERATING FORCE COULD HAVE MANY OF THE SAME STRUCTURES, THAT
POSSIBILITY ONLY SERVES TO EMPHASIZE THE AMBIGUITY LATENT IN THE
SEEMINGLY CLEAR LANGUAGE CHOSEN BY CONGRESS TO DEFINE THE EXTENT OF THE
COMMISSION'S LICENSING AUTHORITY. 

OTHER PROVISIONS OF THE ACT MAKE MORE APPARENT THE LIMITATIONS
INTENDED BY CONGRESS UPON THE REACH OF 4(E).  THE ACT ITSELF WAS
ORIGINALLY ENTITLED THE FEDERAL WATER POWER ACT, 41 STAT. 1077
(EMPHASIS ADDED); /8/ AND THE PREAMBLE TO THE ACT SPECIFIED THAT ONE OF
ITS PRIMARY PURPOSES WAS THE DEVELOPMENT OF WATER POWER.  ID., AT
1063.  IN ADDITION, 4(A) OF THE ACT, 16 U.S.C. 797(A), AUTHORIZES THE
COMMISSION TO CONDUCT INVESTIGATIONS CONCERNING "THE WATER-POWER
INDUSTRY AND ITS RELATION TO OTHER INDUSTRIES AND TO INTERSTATE OR
FOREIGN COMMERCE" (EMPHASIS ADDED); 4(G), 16 U.S.C. 797(G), AUTHORIZES
THE COMMISSION TO INVESTIGATE THE PROPOSED OCCUPANCY OF PUBLIC LANDS
FOR OTHE DEVELOPMENT OF ELECTRIC POWER AND TO ISSUE SUCH ORDERS AS ARE
NECESSARY "TO CONSERVE AND UTILIZE THE NAVIGATION AND WATER-POWER
RESOURCES OF THE REGION" (EMPHASIS ADDED).  SIMILARLY, 10(A) OF THE
ACT, 16 U.S.C. 803(A), PROVIDES THAT ALL LICENSES ISSUED UNDER THE ACT
SHALL BE ON THE CONDITION THAT THE PROJECT ADOPTED WILL BE BEST ADAPTED
TO A COMPREHENSIVE PLAN "FOR THE IMPROVEMENT AND UTILIZATION OF WATER
POWER DEVELOPMENT" (EMPHASIS ADDED). 

IN NONE OF THESE STATUTORY PROVISIONS IS THERE ANY REFERENCE TO THE
DEVELOPMENT OR CONSERVATION OF STEAM POWER, DESPITE THE FACT THAT IN
1920, AS TODAY, THERMAL-ELECTRIC GENERATING PLANTS PRODUCED THE
GREATEST PORTION OF THIS NATION'S ELECTRIC ENERGY.  /9/  THE EXPLICIT
REFERENCES TO HYDROELECTRIC POWER, AND THE ABSENCE OF ANY SUCH
REFERENCES TO STEAM POWER, MANIFEST THE LIMITED SCOPE OF THE ACT'S
UNDERLYING PURPOSE:  "THE COMPREHENSIVE DEVELOPMENT OF WATER POWER." 
FPC V. UNION ELECTRIC CO., 381 U.S., AT 101. 

        B 

ALTHOUGH THE LANGUAGE OF 4 (E) ITSELF COULD NONETHELESS BE
INTERPRETED AS EXTENDING THE COMMISSION'S LICENSING JURISDICTION TO
INCLUDE THERMAL-ELECTRIC POWER PLANTS LOCATED ON NAVIGABLE STREAMS, THE
LEGISLATIVE HISTORY OF THE ACT CONCLUSIVELY DEMONSTRATES THAT CONGRESS
INTENDED TO SUBJECT TO REGULATION ONLY THE CONSTRUCTION AND OPERATION
OF HYDROELECTRIC GENERATING FACILITIES. 

IN 1918 /10/ AN ADMINISTRATION BILL PREPARED BY THE SECRETARIES OF
WAR, INTERIOR, AND AGRICULTURE, CONTAINING MOST OF THE PROVISIONS
EVENTUALLY INCLUDED IN THE FEDERAL WATER POWER ACT OF 1920, WAS
INTRODUCED IN CONGRESS.  H.R. 8716, 65TH CONG., 2D SESS.  IN A LETTER
TO REPRESENTATIVE T.W.SIMS, CHAIRMAN OF THE SPECIAL HOUSE COMMITTEE ON
WATER POWER, WHICH HAD HELD HEARINGS ON THE BILL, THE SECRETARIES MADE
IT PLAIN THAT ONLY HYDROELECTRIC PROJECTS WERE INTENDED TO BE COVERED
BY THE LEGISLATION: 

   " IT IS UNDERSTOOD YOUR COMMITTEE WILL TAKE ACTION AT AN EARLY

  DATE UPON VARIOUS PROPOSALS WHICH HAVE BEEN MADE CONCERNING

  WATER-POWER LEGISLATION.  ON ACCOUNT OF THE CONDITIONS NOW

  AFFECTING THE POWER INDUSTRY AND THE NEED OF MAINTAINING OUR

  ENTIRE INDUSTRIAL MACHINERY AT ITS HIGHEST EFFICIENCY, A

  SATISFACTORY SOLUTION OF THE WATER-POWER PROBLEM IS, IN OUR

  JUDGMENT, ONE OF THE MOST IMPORTANT STEPS FOR THE CONSIDERATION

  OF THIS CONGRESS AND ONE WHICH SHOULD RECEIVE ATTENTION AT THE

  EARLIEST PRACTICABLE DATE. 

      " WHILE THE FORM OF BILL WHICH HAS BEEN PRESENTED FOR YOUR

  CONSIDERATION IS DIRECTLY CONCERNED WITH WATER-POWER DEVELOPMENT

  ONLY, AN ADEQUATE SOLUTION OF THIS PROBLEM WILL HAVE A FAVORABLE

  AND STABILIZING EFFECTUPON THE WHOLE POWER INDUSTRY.  PROBABLY NO

  CONSIDERABLE INCREASE IN NEW WATER-POWER DEVELOPMENT CAN BE

  EXDPECTED IMMEDIATELY, BUT LEGISLATION IS URGENTLY NEEDED IN

  ORDER TO PUT EXISTING WATER-POWER DEVELOPMENTS, WHICH HAVE BEEN

  MADE UNDER INADEQUATE LAW, INTO A POSITION OF SECURITY WHICH WILL

 ENABLE THEM TO MAKE EXTENSIONS AND TO MEET MATURING OBLIGATIONS

  UPON FAVORABLE TERMS. 

     " WATER POWER LEGISLATION SHOULD HAVE IN VIEW NOT ONLY THE

  MAINTENANCE OF OTHE RIGHTS OF THE PUBLIC IN THE NATIONAL

  RESOURCES, BUT ALSO THE ADEQUATE PROTECTION OF PRIVATE CAPITAL BY

  WHICH SUCH RESOURCES ARE DEVELOPED.  THE BILL BEFORE YOU AIMS TO

  DO BOTH."  H.R. REP. NO. 715, 65TH CONG., 2D SESS., 29. 

THE COMMITTEE REPORT ON H.R. 8716 REFLECTED THE ADMINISTRATION'S
THEORY THAT THE LEGISLATION WAS DESIGNED "TO PROVIDE FOR THE
DEVELOPMENT OF HYDROELECTRIC POWER BY PRIVATE CAPITAL."  ID., AT 15. 
/11/ DESPITE THE COMMITTEE'S RECOMMENDATION, THE BILL FAILED TO PASS
THE 65TH CONGRESS BECAUSE OF A SENATE FILIBUSTER.  SEE FPC V. UNION
ELECTRIC CO., 381 U.S., AT 102 N. 18. 

THE ADMINISTRATION BILL WAS REINTRODUCED IN THE 66TH CONGRESS.  THE
HOUSE COMMITTEE ON WATER POWER AGAIN RECOMMENDED APPROVAL TO MEET "THE
NEED FOR LEGISLATION FOR THE DEVELOPMENT OF HYDROELECTRIC POWER . . .
."  H.R. REP. NO. 61, 66TH CONG., 1ST SESS., 4.  /12/ THE SENATE
COMMITTEE ON COMMERCE ALSO RECOMMENDED ADOPTION OF THE BILL IN VIEW OF
O"THE NEED FOR OR THE BENEFICENT RESULTS TO COME FROM WATER POWER
DEVELOPMENT."  S. REP. NO. 180, 66TH CONG., 1ST SESS., 2.  AFTER
COMPROMISE BETWEEN THE HOUSE AND SENATE ON MATTERS UNRELATED TO THE
ISSUE BEFORE US, SEE H.R. CONF. REP. NO. 910, 66TH CONG., 2D SESS.,
THIS BILL WAS ENACTED AS THE FEDERAL WATER POWER ACT OF 1920. 

ALTHOUGH THE LEGISLATIVE HISTORY OF THE ACT REVEALS AN AMBITIOUS
ATTEMPT BY CONGRESS TO PROVIDE FOR COMPREHENSIVE CONTROL OVER A LARGE
NUMBER OF USES OF THE NATION'S WATER RESOURCES, THERE IS SIMPLY NO
SUGGESTION IN ANY OF THE LEGISLATIVE MATERIALS THAT THE BILL WOULD
AUTHORIZE THE NEW COMMISSION TO LICENSE THE CONSTRUCTION OR MAINTENANCE
OF THERMAL-ELECTRIC POWER PLANTS.  " THE PRINCIPAL USE TO BE DEVELOPED
AND REGULATED IN THE ACT," THIS COURT EXPLAINED IN FPC V. UNION
ELECTRIC CO., SUPRA, AT 99, "WAS THAT OF HYDROELECTRIC POWER TO MEET
THE NEEDS OF AN EXPANDING ECONOMY."  EMPHASIS ADDED; FOOTNOTE
OMITTED.)  SEE ALSO ID., AT 115 (GOLDBERG, J., DISSENTING). 

        C 

THE LIMITED SCOPE OF THE 4(E) LICENSING AUTHORITY, REFLECTED IN BOTH
THE TEXT OF THE ACT AND ITS LEGISLATIVE HISTORY, IS REINFORCED BY THE
COMMISSION'S CONSISTENT INTERPRETATION OF THAT AUTHORITY AS NOT
INCLUDING JURISDICTION OVER THE CONSTRUCTION AND OPERATION OF THERMAL
ELECTRIC POWER PLANTS.  IN ITS FIRST ANNUAL REPORT TO CONGRESS, THE
COMMISSION CONCLUDED THAT CONGRESS INTENDED ONLY TO GIVE IT LICENSING
AUTHORITY WITH RESPECT TO HYDROELECTRIC PROJECTS: 

     " ON NEITHER THE PUBLIC LANDS AND RESERVATIONS NOR ON THE

  WATERS OF THE UNITED STATES IS THE JURISDICTION OF THE FEDERAL

  POWER COMMISSION AS BROAD AS THE JURISDICTION OF CONGRESS.  THE

  LATTER HAS AUTHORITY OVER ALL FORMS OF USE; THE COMMISSION IS

  LIMITED TO THE CONSIDERATION OF PROJECTS DESIGNED TO PRODUCE

  WATER POWER.  STRUCTURES OR DIVERSIONS HAVING ANY OTHER PURPOSE,

  UNLESS INCIDENTAL TO WORKS CONSTRUCTED FOR POWER PURPOSES OR A

  NECESSARY PART OF A COMPREHENSIVE SCHEME OF DEVELOPMENT, ARE NOT

WITHIN THE JURISDICTION OF THE COMMISSION."  FPC, FIRST ANNUAL

  REPORT 51 - 52 (EMPHASIS ADDED).  /14/ 

EVER SINCE THAT FIRST REPORT IN 1921, THE COMMISSION HAS
CONSISTENTLY MAINTAINED THE POSITION THAT ITS LICENSING AUTHORITY
EXTENDS ONLY TO HYDROELECTRIC PROJECTS.  /14/ SUCH A LONGSTANDING,
UNIFORM CONSTRUCTION BY THE AGENCY CHARGED WITH ADMINISTRATION OF THE
FEDERAL POWER ACT, PARTICULARLY WHEN IT INVOLVES A CONTEMPORANEOUS
CONSTRUCTION OF THE ACT BY THE OFFICIALS CHARGED WITH THE
RESPONSIBILITY OF SETTING ITS MACHINERY IN MOTION, IS ENTITLED TO GREAT
RESPECT.  TRAFFICANTE V. METROPOLITAN LIFE INS. CO., 409 U.S. 205, 210;
UDALL V. TALLMAN, 380 U.S. 1, 16; POWER REACTOR DEVELOPMENT CO. V.
ELECTRICAL WORKERS, 367 U.S. 396, 408. 

THE DEFERENCE DUE THIS LONGSTANDING ADMINISTRATIVE CONSTRUCTION IS
ENHANCED BY THE FACT THAT CONGRESS GAVE NO INDICATION OF ITS
DISSATISFACTION WITH THE AGENCY'S INTERPRETATION OF THE SCOPE OF ITS
LICENSING JURISDICTION WHEN IT AMENDED THE ACT IN 1930, C. 572, 46
STAT. 797, /15/ OR WHEN IT RE-ENACTED THE FEDERAL WATER POWER ACT AS
PART I OF THE FEDERAL POWER ACT IN 1935.  /16/ SEE SAXBE V. BUSTOS, 419
U.S. 65; CAMMARANO V. UNITED STATES, 358 U.S. 498, 510 - 511;
MASSACHUSETTS MUTUAL LIFE INS. CO. V. UNITED STATES, 288 U.S. 269,
273.  INDEED, ON SEVERAL OCCASIONS THE COMMISSION HAS SUPPORTED
LEGISLATIVE PROPOSALS TO EXPAND ITS JURISDICTION TO ENCOMPASS LICENSING
AUTHORITY OVER THE CONSTRUCTION AND OPERATION OF THERMAL-ELECTRIC
GENERATING PLANTS BUT HAS BEEN UNABLE TO PERSUADE CONGRESS TO ACT
FAVORABLY ON THESE PROPOSED AMENDMENTS TO THE ACT.  SEE 1962 ANNUAL
REPORT 12 - 13; 1964 ANNUAL REPORT 10 - 11; 1966 ANNUAL REPORT 8 - 9. 

       D 

THE CONCLUSION THAT CONGRESS DID NOT INTEND TO GIVE THE COMMISSION
LICENSING JURISDICTION WITH RESPECT TO THERMAL-ELECTRIC POWER PLANTS IS
ALSO SUPPORTED BY THIS COURT'S DECISION IN FPC V. UNION ELECTRIC CO.,
381 U.S. 90.  THE COURT THERE SUSTAINED THE COMMISSION'S POSITION THAT
A LICENSE WAS REQUIRED UNDER THE ACT TO CONSTRUCT A PUMPED-STORAGE
HYDROELECTRIC PLANT TO BE LOCATED ON A NONNAVIGABLE STREAM.  ALTHOUGH
THE PLANT DID NOT AFFECT COMMERCE ON NAVIGABLE WATERS, ITS GENERATION
OF ELECTRICITY FOR INTERSTATE TRANSMISSION WOULD AFFECT "THE INTERESTS
OF INTERSTATE OR FOREIGN COMMERCE" WITHIN THE MEANING OF 23(B) OF THE
ACT, 16 U.S.C. 817, THE COURT HELD, AND THERFORE A LICENSE WAS
REQUIRED.  THE UNION ELECTRIC CO., ARGUING THAT THE COMMISSION LACKED
LICENSING AUTHORITY, ASSERTED THAT THERE WAS NO DIFFERENCE BETWEEN THE
GENERATION OF ENERGY BY A THERMAL-ELECTRIC POWER PLANT AND BY A
HYDROELECTRIC PROJECT IN TERMS OF IMPACT ON INTERSTATE COMMERCE THAT
COULD JUSTIFY A DISTINCTION IN JURISDICTIONAL TREATMENT.  ACCORDINGLY,
IF IMPACT ON COMMERCE IN GENERAL, RATHER THAN ON COMMERCE ON NAVIGABLE
WATERS, WAS THE CRITERION FOR COMMISSION JURISDICTION, ARGUED UNION
ELECTRIC, STEAM PLANTS, AS WELL AS ITS PUMPED-STORAGE HYDROELECTRIC
PLANT, SHOULD BE SUBJECT TO LICENSING UNDER PART I OF THE FEDERAL POWER
ACT. 

THE COURT FOUND THE ANSWER TO THIS ARGUMENT IN THE FACT THAT, EVEN
THOUGH NOT LOCATED ON A NAVIGABLE STREAM, UNION ELECTRIC'S GENERATING
PLANT PRODUCED ELECTRICITY BY HARNESSING WATER POWER:  UNLIKE PARTS II
AND III OF THE FEDERAL POWER ACT, "UNDER WHICH THE COMMISSION REGULATES
VARIOUS ASPECTS OF THE SALE AND TRANSMISSION OF ENERGY IN INTERSTATE
COMMERCE, PART I, THE ORIGINAL FEDERAL WATER POWER ACT, IS CONCERNED
WITH THE UTILIZATION OF WATER RESOURCES AND PARTICULARLY THE POWER
POTENTIAL IN WATER.  IN RELATION TO THIS CENTRAL CONCERN OF THE ACT,
THE DISTINCTION BETWEEN A HYDORELECTRIC PROJECT AND A STEAM PLANT IS
BOVIOUS, AND MEANINGFUL, ALTHOUGH BOTH PRODUCE ENERGY FOR INTERSTATE
TRANSMISSION."  381 U.S., AT 110 (FOOTNOTES OMITTED).  SEE ALSO ID., AT
115 (GOLDBERG, J., DISSENTING):  " THE LEGISLATIVE HISTORY HERE,
HOWEVER, ESTABLISHES TO MY SATISFACTION THAT (CONGRESS) HAS REQUIRED
LICENSES OF NEITHER STEAM PLANTS NOR THE TYPE OF HYDRO-ELECTRIC PLANT
HERE INVOLVED, AND IN LIGHT OF THIS LEGISLATIVE HISTORY I AGREE WITH
THE COURT OF APPEALS THAT CONGRESS INTENDED THAT A LICENSE BE REQUIRED
ONLY WHERE THE INTERESTS OF COMMERCE ON NAVIGABLE WATERS ARE
AFFECTED."  (FOOTNOTE OMITTED.) 

        III 

FOR THE ABOVE REASONS WE AGREE WITHG THE CONCLUSION OF THE COURT OF
APPEALS THAT THE STRUCTURES COMPOSING THERMAL-ELECTRIC POWER PLANTS ARE
NOT "PROJECT WORKS" REQUIRED TO BE LICENSED BY THE COMMISSION.  THE
COURT OF APPEALS WENT ON TO HOLD, HOWEVER, THAT THE SURPLUS WATER
CLAUSE OF 4(E) AUTHORIZES THE COMMISSION TO LICENSE THE USE OF SUCH
WATER NOT ONLY FOR THE DEVELOPMENT OF HYDROELECTRIC ENERGY BUT ALSO FOR
COOLING PURPOSES IN THERMAL-ELECTRIC POWER PLANTS, FINDING THAT THE
SURPLUS WATER PROVISION WAS INTENDED TO SERVE BROADER INTERESTS THAN
THE PROJECT WORKS CLAUSE OF THE SAME SUBSECTION OF THE ACT.  " IT
REFLECTS AN EXPLICIT CONCERN WITH UTILIZING WATER RESOURCES TO DEFRAY
THE COST OF WATERWAY IMPROVEMENTS AS WELL AS A CONCERN WITH
COMPREHENSIVE WATER RESOURCE MANAGEMENT.  IT EMPOWERS THE FPC TO
LICENSE THE USE OF EITHER 'SURPLUS WATER' OR 'WATER POWER' FROM ANY
GOVERNMENT DAM, AND THUS IS NOT LIMITED TO THE MERE LEASING OF EXCESS
GOVERNMENT WATER POWER . . . . (THE ADDITION OF THE WORDS 'SURPLUS
WATER' IN (4(E)) WAS INTENDED TO AFFORD THE FPC A BROAD LICENSING
AUTHORITY OVER FEDERALLY CONTROLLED WATERS . . . . THE FPC COULD
LICENSE EITHER THE USE OF 'WATER POWER'--I.E., ELECTRICITY ACTUALLY
GENERATED BY THE GOVERNMENT--, OR THE USE OF 'SURPLUS WATER' FOR THE
PRIVATE GENERATION OF WATER POWER OR OTHER PURPOSES."  160 U.S. APP.
D.C., AT 116 - 117, 489 F.2D, AT 1240 - 1241.  WE CANNOT AGREE WITH
THIS CONCLUSION OF THE COURT OF APPEALS WITH RESPECT TO THE "SURPLUS
WATER" CLAUSE OF 4(E), BECAUSE WE CAN FIND NO SUPPORT FOR IT IN THE
TEXT, IN THE LEGISLATIVE HISTORY, OR IN THE ADMINISTRATIVE
INTERPRETATION OF PART I OF THE FEDERAL POWER ACT. 

THE ORIGINAL TITLE, PREAMBLE, AND TEXT OF PART I OF THE FEDERAL
POWER ACT PROVIDE STRONG EVIDENCE THAT CONGRESS INTENDED TO RESTRICT
THE COMMISSION'S LICENSING JURISDICTION WITH RESPECT TO THE POWER
INDUSTRY TO THE CONSTRUCTION AND MAINTENANCE OF HYDROELECTRIC
FACILITIES.  SEE SUPRA, AT 403 - 404.  NOTHING IN THE LANGUAGE OF OTHE
ACT SUGGESTS THAT THE SURPLUS WATER CLAUSE WAS DESIGNED TO BE AN
EXCEPTION TO THE ACT'S LIMITED SCOPE AND PURPOSE.  /17/ SIMILARLY, FROM
1921 TO THE PRESENT THE COMMISSION HAS CONSISTENTLY INTERPRETED ITS
LICENSING AUTHORITY AS BEING "LIMITED TO THE CONSIDERATION OF PROJECTS
DESIGNED TO PRODUCE WATER POWER."  FPC, FIRST ANNUAL REPORT 51.  SEE
SUPRA, AT 408 - 409.  NO EXCEPTION HAS EVER BEEN RECOGNIZED BY THE
COMMISSION FOR THERMAL-ELECTRIC POWER PLANTS USING SURPLUS WATER FROM
GOVERNMENT DAMS. 

THE COURT OF APPEALS' OWN EXTENSIVE ANALYSIS OF THE GENERAL
BACKGROUND AND LEGISLATIVE HISTORY OF THE FEDERAL WATER POWER ACT
CONCLUSIVELY DEMONSTRATES THAT CONGRESS INTENDED THE ACT AS A WHOLE,
NOT MERELY THE PROJECT WORKS CLAUSE, TO SUBJECT TO REGULATION ONLY THAT
SEGMENT OF THE POWER INDUSTRY INVOLVING THE CONSTRUCTION AND OPERATION
OF HYDROELECTRIC GENERATING FACILITIES.  SEE 160 U.S. APP. D.C., AT 91
109, 489 F.2D, AT 1215 - 1233; CF. SUPRA, AT 405 - 408.  MORE
IMPORTANTLY, THE LEGISLATIVE HISTORY PERTAINING TO THE SURPLUS WATER
CLAUSE ITSELF INDICATES THAT THAT CLAUSE, LIKE THE REST OF THE ACT,
RELATES TO THE CONSERVATION AND DEVELOPMENT OF ONLY HYDROELECTRIC
POWER. 

THE PHRASE "SURPLUS WATER OR WATER POWER FROM ANY GOVERNMENT DAM"
HAD ITS ORIGINS IN LEGISLATION ENACTED DURING THE LATE 19TH AND EARLY
20TH CENTURIES, CONFERRING ON THE SECRETARY OF WAR THE AUTHORITY TO
LEASE AT INDIVIDUAL DAM SITES EXCESS WATER FOR POWER DEVELOPMENT.  /18/
THE TERM "SURPLUS WATER" IN THOSE STATUTES ALWAYS REFERRED TO ITS USE
FOR THE DEVELOPMENT OF WATER POWER.  /19/ HC #414 

IN 1914 THE ADAMSON BILL, H.R. 16053, 63D CONG., 2D SESS., WAS
INTRODUCED TO AMEND THE DAM ACT, 34 STAT. 386, BY PROVIDING FOR THE
COMPREHENSIVE REGULATION OF WATER POWER DEVELOPMENT ON NAVIGABLE
STREAMS.  SECTION 14 OF THE BILL, THE ANTECEDENT OF 4(E)'S SURPLUS
WATER CLAUSE, AUTHORIZED THE SECRETARY OF WAR TO LEASE "THE RIGHT TO
DEVELOP POWER FROM THE SURPLUS WATER OVER AND ABOVE THAT REQUIRED FOR
NAVIGATION AT ANY NAVIGATION DAM NOW OR HEREAFTER CONSTRUCTED . . . AND
OWNED BY THE UNITED STATES . . . ."  51 CONG. REC. 11415.  THE REPORT
OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE /20/ AND
CONGRESSIONAL DEBATE ON 14 PLAINLY INDICATE THAT ONLY WATER POWER USES
OF SURPLUS WATER WERE TO BE REGULATED.  /21/ STEAM POWER WAS MENTIONED
ONLY AS A COMPETING SOURCE OF ELECTRIC ENERGY, WITH NO CONSIDERATION
GIVEN TO ITS REGULATION.  /22/ 

DURATION OF THE LEASES AUTHORIZED TO 50 YEARS.  THE AMENDMENT ALSO
CHANGED THE SURPLUS WATER LANGUAGE OF THE SECTION SO THAT IT CLOSELY
RESEMBLED THE LANGUAGE LATER ADOPTED IN THE FEDERAL WATER POWER ACT:
AMENDED 14 AUTHORIZED "LEASES FOR THE USE OF SURPLUS WATER AND WATER
POWER GENERATED AT DAMS AND WORKS CONSTRUCTED WHOLLY OR IN PART BY THE
UNITED STATES IN THE INTEREST OF NAVIGATION . . . ."  51 CONG. REC.
13256 (EMPHASIS ADDED).  THE CHANGE IN LANGUAGE WAS NOT INTENDED TO
BROADEN THE SCOPE OF THE SURPLUS WATER CLAUSE.  SEE ID., AT 13257. 
THE SENATE COMMERCE COMMITTEE REPORTED OUT A SUBSTITUTE BILL, S. 6413,
63D CONG., 2D SESS., RATHER THAN THE AMENDED ADAMSON BILL.  LIKE THE
HOUSE BILL, S. 6413, CONTAINING ANOTHER VERSION OF A SURPLUS WATER
CLAUSE, /23/ WAS DIRECTED ONLY TO "(THE QUESTION OF WATER-POWER
DEVELOPMENT BY THE CONSTRUCTION OF DAMS ACROSS NAVIGABLE STREAMS AND
THE IMPROVEMENT OF NAVIGATION IN CONNECTION WITH WATER-POWER
DEVELOPMENT."  S. REP. NO. 846, 63D CONG., 3D SESS., 1 (EMPHASIS
ADDED).  NEITHER BILL, HOWEVER, WAS ENACTED DURING THE 63D CONGRESS. 

SIMILAR BILLS WERE INTRODUCED IN THE 64TH AND 65TH CONGRESSES. 
AGAIN, NOTHING IN THE LANGUAGE OR REPORTS ON ANY OF OTHAT PROPOSED
LEGISLATION INDICATED THAT THE LICENSING AUTHORITY TO BE CREATED WOULD
EXTEND TO THE USE OF SURPLUS WATER" BY STEAM PLANTS.  SECTION 10 OF THE
SHIELDS BILL, S. 3331, 64TH CONG., 1ST SESS., FOR EXAMPLE, AUTHORIZED
THE SECRETARY OF WAR TO LEASE "THE RIGHT TO UTILIZE THE SURPLUS WATER
POWER OVER AND ABOVE THAT REQUIRED FOR NAVIGATION AT ANY NAVIGATION DAM
NOW OR HEREAFTER CONSTRUCTED . . . ."  53 CONG. REC. 2198.  THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE STRUCK S. 3331 IN ITS
ENTIRETY AND SUBSTITUTED A NEW BILL.  SECTION 19 OF THAT BILL,
IDENTICAL TO 14 OF THE AMENDED ADAMSON BILL THAT HAD BEEN PASSED BY THE
HOUSE IN 1914, AUTHORIZED THE SECRETARY OF WAR "TO ENTER INTO LEASES
FOR THE USE OF SURPLUS WATER AND WATER POWER GENERATED AT DAMS AND
WORKS CONSTRUCTED WHOLLY OR IN PART BY THE UNITED STATES IN THE
INTERESTS OF ONAVIGATION . .. ."  H.R. REP. NO. 404, 64TH CONG., 1ST
SESS., 6.  THE COMMITTEE REPORT EXPLAINED THAT "(SECTION 19 REGULATES
THE METHOD TO BE PURSUED BY THE WAR DEPARTMENT IN LEASING THE POWER AT
DAMS ERECTED IN WHOLE OR IN PART BY THE GOVERNMENT ITSELF."  ID., AT
11.  THE SECTION, STATED THE COMMITTEE, "CONTINUES THE METHOD EXISTING
AS TO GOVERNMENT DAMS FOR MANY YEARS, UNDER WHICH THE WAR DEPARTMENT
HAS SATISFACTORILY REGULATED AND LEASED SURPLUS WATER AT A NUMBER OF
SUCH STRUCTURES."  IBID.  THE "METHOD EXISTING," OF COURSE, PROVIDED
FOR THE LEASE OF SURPLUS WATER AT INDIVIDUAL DAMS FOR THE PURPOSE OF
WATER POWER DEVELOPMENT. 

THE ADMINISTRATION BILL CONSIDERED INITIALLY BY THE 65TH CONGRESS,
H.R. 8716, 65TH CONG., 2D SESS., WHICH AS AMENDED BY THAT CONGRESS AND
THE 66TH CONGRESS BECAME THE FEDERAL WATER POWER ACT OF 1920, CONTAINED
A SURPLUS WATER CLAUSE THAT PARALLELED THE PROVISIONS OF THE EARLIER
BILLS.  SECTION 4(D) OF THAT BILL, NOW 4(E) OF THE FEDERAL POWER ACT,
AUTHORIZED THE FEDERAL POWER COMMISSION TO ISSUE LICENSES "FOR THE
PURPOSE OF UTILIZING THE SURPLUS WATER OR WATER POWER OVER AND ABOVE
THAT REQUIRED FOR NAVIGATION AT ANY NAVIGATION DAM NOW OR HEREAFTER
CONSTRUCTED . . . AND OWNED BY THE UNITED STATES . . . ."  H.R. REP.
NO. 715, 65TH CONG., 2D SESS., 23.  NO EXPLANATION WAS GIVEN FOR
SUBSTITUTION OF THE DISJUNCTIVE "OR" FOR THE CONJUNCTIVE "AND" IN THE
PHRASE "SURPLUS WATER OR WATER POWER," BUT THERE IS NOTHING TO INDICAT
E THAT THE CHANGE WAS DESIGNED TO EXPAND THE SCOPE OF SURPLUS WATER
LICENSING AUTHORITY BEYOND THAT CONTEMPLATED BY THE EARLIER PROPOSED
LEGISLATION.  TO THE CONTRARY, TESTIMONY GIVEN DURING THE EXTENSIVE
HEARINGS CONDUCTED BY THE SPECIAL HOUSE COMMITTEE ON WATER POWER
REFLECTED THE GENERAL UNDERSTANDING THAT THE COMMISSION'S LICENSING
JURISDICTION WOULD BE LIMITED TO HYDRO-ELECTRIC FACILITIES.  /2/ 

THE ADMINISTRATION BILL, AS ALREADY NOTED, SEE SUPRA, AT 407, WAS
REINTRODUCED IN THE 66TH CONGRESS AND WAS ENACTED WITHOUT ANY MATERIAL
CHANGES IN THE SURPLUS WATER CLAUSE AS THE FEDERAL WATER POWER ACT OF
1920.  AS THE COURT OF APPEALS OBSERVED, SEE 160 U.S. APP. D.C., AT 112
- 113, 489 F.2D, AT 1236 - 1237, LITTLE RELEVANT LEGISLATIVE HISTORY
CONCERNING THE MEANING OF THE SURPLUS WATER CLAUSE WAS GENERATED DURING
THE 66TH CONGRESS.  HC #418 NEVERTHELESS, THE GENERAL HISTORY OF THE
ACT DEMONSTRATES THAT THE LEGISLATORS VIEWED THE BILL AS PRIMARILY
REGULATING THE DEVELOPMENT OF HYDROELECTRIC POWER.  NOTHING IN THE
RECORD OF THE DEBATES INDICATES THAT CONGRESS INTENDED THE SURPLUS
WATER CLAUSE TO CREATE AN EXCEPTION TO THE LIMITED SCOPE AND PURPOSE OF
THE ACT OR THAT IT VIEWED THAT CLAUSE AS EMBODYING A MEANING DIFFERENT
FROM THAT OF THE VIRTUALLY IDENTICAL SURPLUS WATER PROVISIONS CONTAINED
IN EARLIER LEGISLATIVE PROPOSALS. 

THE COURT OF APPEALS BASED ITS CONTRARY CONCLUSION IN LARGE PART ON
THE FACT THAT THE FEDERAL WATER POWER ACT REPEALED THE STATUTORY
AUTHORITY FOR THE WATERWAYS COMMISSION, CREATED BY THE RIVERS AND
HARBORS ACT OF 1917.  40 STAT. 269.  THE COURT STATED THAT "THE NEWLY
CREATED FEDERAL POWER COMMISSION TOOK OVER THE PLANNING AND
COORDINATING RESPONSIBILITIES OF THE WATERWAYS COMMISSION, WHICH
INCLUDED CONSIDERATION OF A SPECTRUM OF WATER USES NOT RELATED TO WATER
POWER."  60 U.S. APP. D.C., AT 115 - 116, 489 F.2D, AT 1239 - 1240
(FOOTNOTE OMITTED).  THE COURT CONCLUDED FROM THIS TRANSFER OF
RESPONSIBILITIES THAT THE FEDERAL WATER POWER ACT REFLECTED A CONCERN
WITH COMPREHENSIVE WATER RESOURCE MANAGEMENT AND THAT THE SURPLUS WATER
CLAUSE WAS INTENDED TO PROVIDE A BASIS FOR EXPANDING GOVERNMENTAL
SUPERVISION OF GENERAL WATER RESOURCE DEVELOPMENT AND USE.  ID., AT 116
- 117, 489 F.2D, AT 1240 - 1241. 

ALTHOUGH IT IS TRUE THAT 29 OF THE FEDERAL WATER POWER ACT, 41 STAT.
1077, DID EXPRESSLY REPEAL THE STATUTORY AUTHORITY FOR THE WATERWAYS
COMMISSION, IT SEEMS EVIDENT THAT THAT REPEAL WAS NOT INTENDED TO
TRANSFER ALL OF THAT COMMISSION'S FUNCTIONS TO THE NEW FEDERAL POWER
COMMISSION.  THE HOUSE DEBATES CLEARLY INDICATE THAT THE WATERWAYS
COMMISSION AUTHORITY WAS REPEALED LARGELY BECAUSE THAT COMMISSION WAS
NOT IN FACT A FUNCTIONING AGENCY, AND IN ORDER TO PREVENT ANY POSSIBLE
CONFLICT BETWEEN IT AND THE NEW FPC.  THERE IS NO INDICATION OF ANY
PURPOSE TO TRANSFER THE WATERWAYS COMMISSION'S JURISDICTION TO THE
FPC.  E.G., 58 CONG. REC. 2250 - 2251 (REMARKS OF REP. ANDERSON).  IN
FACT, A PROPOSED AMENDMENT THAT WOULD HAVE PROVIDED FOR SUCH A TRANSFER
OF AUTHORITY WAS NEVER ACTUALLY INTRODUCED IN THE SENATE.  SEE 59 CONG.
REC. 1173 - 1176 (REMARKS OF SENS.  ASHURST, FLETCHER, AND RANSDELL). 
THOSE FUNCTIONS OF THE WATERWAYS COMMISSION NOT EXPRESSLY GIVEN TO THE
NEW FPC OR TRANSFERRED TO OTHER AGENCIES WERE THUS SIMPLY ELIMINATED BY
29.  /25/ 

MOREOVER, THE RESPONSIBILITIES WHICH THE WATERWAYS COMMISSION DID
POSSESS FROM 1917 TO 1920, ALTHOUGH QUITE BROAD, WERE INVESTIGATORY,
NOT REGULATORY.  THE COMMISSION WAS AUTHORIZED "TO SECURE THE NECESSARY
DATA, AND TO FORMULATE AND REPORT TO CONGRESS . . . A COMPREHENSIVE
PLAN OR PLANS FOR THE DEVELOPMENT OF WATERWAYS AND THE WATER RESOURCES
OF THE UNITED STATES FOR THE PURPOSES OF NAVIGATION AND FOR EVERY
USEFUL PURPOE, AND RECOMMENDATIONS FOR THE MODIFICATION OR
DISCONTINUANCE OF ANY PROJECT HEREIN OR HERETOFORE ADOPTED."  RIVERS
AND HARBORS ACT OF 1917, 1,, 40 STAT. 269.  ACORDINGLY, EVEN IF IT
COULD BE CONCLUDED THAT THE WATERWAYS COMMISSION'S POWERS HAD BEEN
INHERITED BY THE FPC, THAT CONCLUSION WOULD NOT SUPPORT RECOGNITION OF
COMMISSION LICENSING JURISDICTION OVER THERMAL-ELECTRIC POWER PLANTS
USING "SURPLUS WATER" FOR COOLING PURPOSES.  /26/ HC #420 

CONTRARY TO THE SUGGESTION OF THE COMPLAINANTS, A READING OF THE
SURPLUS WATER PROVISION AS REFERRING ONLY TO HYDROELECTRIC PLANTS
UTILIZING SURPLUS WATER OR WATER POWER FROM GOVERNMENT DAMS DOES NOT
RENDER THAT CLAUSE NUGATORY.  FIRST, A LICENSE TO CONSTRUCT AND OPERATE
PROJECT WORKS DOES NOT AUTOMATICALLY AUTHORIZE USE OF SURPLUS WATER
FROM A GOVERNMENT DAM.  WHERE A PROJECT WILL USE SURPLUS WATER, THE
COMMISSION MAY PROPERLY REQUIRE A SECOND LICENSE, WHICH MAY IMPOSE
ADDITIONAL CHARGES OR OPERATIONAL CONDITIONS ON THE LICENSEE.  CF.
ALABAMA POWER CO., 34 F.P.C. 1108; CLAIFORNIA OREGON POWER CO., 13
F.P.C. 1, 12 - 13, SUPPLEMENTAL OPINION, 15 F.P.C. 14, 18 - 21,
PETITION FOR REVIEW DISMISSED, 99 U.S. APP. D.C. 263, 239 F.2D 426. 
SECOND, FACILITIES CONSTRUCTED UNDER A CONGRESSIONAL GRANT ISSUED PRIOR
TO ENACTMENT OF THE FEDERAL WATER POWER ACT ARE EXEMPTED BY 23 (B) OF
THE ACT, 16 U.S.C. 517, FROM THE REQUIREMENT OF SECURING A "PROJECT
WORKS" LICENSE FROM THE COMMISSION DURING THE LIFE OF THE ORIGINAL
WORKS.  SEE NORTHWEST PAPER CO. V. FPC, 344 F.2D 47.  HOWEVER, IF SUCH
A PROJECT SHOULD SEEK TO UTILIZE SURPLUS WATER FROM A GOVERNMENT DAM
BUILT SUBSEQUENT TO JUNE 10, 1920, A SURPLUS WATER CLAUSE LICENSE WOULD
BE REQUIRED.  FINALLY, IT IS BY NO MEANS IRRATIONAL FOR CONGRESS TO
PROVIDE THE COMMISSION WITH ALTERNATIVE, ALBEIT SOMETIMES COEXTENSIVE,
BASES OF JURISDICTION, SO THAT IT CAN PROCEED ON THE STRENGTH OF ONE
WHERE THE EXISTENCE OF THE OTHER MAY BE UNCLEAR. 

        IV 

THE COMPLAINANTS FINALLY ARGUE THAT EVEN THOUGH IT MAY HAVE BEEN
PROPER 50 Y ARS AGO TO CONSTRUE THE COMMISSION'S LICENSING JURISDICTION
AS LIMITED TO HYDRO-ELECTRIC PROJECTS, SUCH A CONSTRUCTION DOES GREAT
VIOLENCE TO THE POLICIES CENTRAL TO THE FEDERAL POWER ACT IN THE LIGHT
OF MODERN CONDITIONS.  ALTHOUGH IN 1920 STEAM PLANTS SUPPLIED THE BULK
OF THE NATION'S ELECTRIC POWER AND, AS TODAY, THOE PLANTS WERE WATER
COOLED, /27/ THE COMPLAINANTS POINT TO THE TREMENDOUS GROWTH IN SIZE
AND EFFICIENCY OF THE MODERN THERMAL-ELECTRIC POWER COMPLEX AND THE
CONCOMITANT INCREASE DURING THE PAST HALF CENTURY IN THE QUANTITY OF
WATER USED BY STEAM PLANTS AND CHANGE IN THE NATURE OF THAT USAGE. 
/28/ BECAUSE THE COOLING WATER USED BY THE SIX PLANTS INVOLVED IN THIS
CASE WILL BE EVAPORATED RATHER THAN RETURNED TO THE RIVER SYSTEM, /29/
THOSE PLANTS WILL WITHDRAW PERMANENTLY UP TO 250,000 ACRE FEET OF WATER
ANNUALLY FROM THE COLORADO RIVER SYSTEM--MORE WATER TAHN WAS USED BY
ALL THE STEAM PLANTS IN THE UNITED STATES IN 1920.  /30/  UNLESS SUCH
USES ARE REGULATED BY SUBJECTING THEM TO THE LICENSING JURISDICITON OF
THE COMMISSION, THE COMPLAINANTS ARGUE, PRIVATE POWER INTERESTS WILL
SUCCEED IN APPROPRIATING THE POWER POTENTIAL IN PUBLIC WATERS, THE VERY
EVIL THE FEDERAL WATER POWER ACT WAS DESIGNED TO ELIMINATE. 

WHATEVER THE MERITS OF THE COMPLAINANTS' ARGUMENT AS A MATTER OF
POLICY, IT IS PROPERLY ADDRESSED TO CONGRESS, NOT TO THE COURTS.  THE
LEGISLATIVE HISTORY OF THE FEDERAL WATER POWER ACT CONCLUSIVELY
DEMONSTRATES THAT IN 1920 CONGRESS INTENDED TO PROVIDE FOR THE ORDERLY
DEVELOPMENT OF THE POWER POTENTIAL OF THE NATION'S WATERWAYS ONLY
THROUGH THE LICENSING OF HYDROELECTRIC PROJECTS.  AND IN 1935, WHEN THE
ACT WAS RE-ENACTED AS PART I OF THE FEDERAL POWER ACT, CONGRESS CHOSE
NOT TO EXPAND THE LICENSING AUTHORITY OF THE COMMISSION DESPITE THE
FACT THAT IN PARTS II AND III OF THE ACT, GIVING THE COMMISSION
REGULATORY AUTHORITY OVER VARIOUS ASPECTS OF THE TRANSMISSION AND SALE
OF ELECTRIC ENERGY IN INTERSTATE COMMERCE, CONGRESS TREATED THE SOURCE
OF THE ENERGY AND THE METHOD OF GENERATION AS IMMATERIAL.  SEE FPC V.
UNION ELECTRIC CO., 381 U.S., AT 110.  MOREOVER, SEVERAL TIMES IN
RECENT YEARS THE COMMISSION HAS SOUGHT AN EXPANSION OF ITS LICENSING
JURISDICTION TO INCLUDE THERMAL-ELECTRIC POWER GENERATING PLANTS, BUT
CONGRESS HAS FAILED TO APPROVE ANY OF THESE PROPOSALS. 

IT MAY WELL BE THAT THE "OBVIOUS" DISTINCTION, RECOGNIZED BY
CONGRESS IN 1920, IN 1935, ANDIN SUBSEQUENT YEARS OF INACTION, AND BY
THIS COURT IN THE UNION ELECTRIC CASE, 381 U.S., AT 110, BETWEEN
UTILIZATION OF WATER RESOURCES BY A HYDROELECTRIC PROJECT AND A THERMAL
ELECTRIC POWER PLANT IS NO LONGER VIABLE.  BUT UNTIL CONGRESS CHANGES
THE LICENSING PROVISIONS OF PART I OF THE FEDERAL POWER ACT, IT IS OUR
DUTY TO APPLY THE STATUTE AS IT WAS WRITTEN AND HAS BEEN CONSTRUED FOR
THE PAST 54 YEARS. 

FOR THE FOREGOING REASONS, THE JUDGMENT BEFORE US IS VACATED, AND
THE CASES ARE REMANDED TO THE COURT OF APPEALS WITH DIRECTIONS TO ENTER
A JUDGMENT AFFIRMING THE COMMISSION'S DISMISSIAL OF THE COMPLAINT FOR
LACK OF JURISDICITON. 

                                  IT IS SO ORDERED. 

/1/ THE COMPLAINANTS ARE THE CHEMEHUEVI TRIBE OF INDIANS, THE
COCOPAH TRIBE OF INDIANS, EMMA YAZZIE, JIMMY YAZZIE, PAUL BEGAY,
CHESTER HUGH BANALLY, BILL BEGAY, THE SIERRA CLUB, AND THE COMMITTEE TO
SAVE BLACK MESA. 

/2/ THE COMPANIES ARE THE ARIZONA PUBLIC SERVICE CO., SOUTHERN
CALIFORNIA EDISON CO., PUBLIC SERVICE CO. OF NEW MEXICO, SALT RIVER
PROJECT, TUCSON GAS & ELECTRIC CO., EL PASO ELECTRIC CO., LOS ANGELES
DEPARTMENT OF WATER & POWER, NEVADA POWER CO., UTAH POWER & LIGHT CO.,
AND SAN DDIEGO GAS & ELECTRIC CO. 

/3/ THE SIX PLANTS ARE ALL LOCATED IN OR NEAR THE FOUR CORNERS AREA
OF NEW MEXICO, ARIZONA, UTAH, AND COLORADO.  THE FOUR CORNERS PLANT IS
LOCATED ON THE NAVAJO INDIAN RESERVATION NEAR FARMINGTON, NEW MEXICO. 
THE MOHAVE PLANT IS LOCATED ON PATENTED LAND IN CLARK COUNTY, NEVADA. 
THE SAN JUAN PLANT IS LOCATED ON PATENTED LAND NEAR FARMINGTON, NEW
MEXICO.  THE HUNTINGTON CANYON PLANT IS LOCATED PRIMARILY ON STATE AND
PATENTED LAND IN HUNTINGTON CANYON, UTAH.  THE NAVAJO PLANT IS LOCATED
ON THE NAVAJO INDIAN RESERVATION NEAR PAGE, ARIZONA.  THE KAIPAROWITS
PLANT WILL BE LOCATED IN SOUTHERN UTAH NEAR LAKE POWELL.  AT THE TIME
OF ORAL ARGUMENT ALL OF THE PLANTS WERE OPERATIONAL EXCEPT FOR THE
KAIPAROITS PLANT, WHICH WAS STILL IN THE PLANNING STAGE. 

/4/ SECTION 4(E) PROVIDES IN PART THAT THE FEDERAL POWER COMMISSION
IS AUTHORIZED AND EMPOWERED: 

" TO ISSUE LICENSES TO CITIZENS OF THE UNITED STATES, OR TO ANY
ASSOCIATION OF SUCH CITIZENS, OR TO ANY CORPORATION ORGANIZED UNDER THE
LAWS OF THE UNITED STATES OR ANY STATE THEREOF, OR TO ANY STATE OR
MUNICIPALITY FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND
MAINTAINING DAMS, WATER CONDUITS, RESERVOIRS, POWER HOUSES,
TRANSMISSION LINES, OR OTHER PROJECT WORKS NECESSARY OR CONVENIENT FOR
THE DEVELOPMENT AND IMPROVEMENT OF NAVIGATION AND FOR THE DEVELOPMENT,
TRANSMISSION, AND UTILIZATION OF POWER ACROSS, ALONG, FROM, OR IN ANY
OF THE STREAMS OR OTHER BODIES OF WATER OVER WHICH CONGRESS HAS
JURISDICTION UNDER ITS AUTHORITY TO REGULATE COMMERCE WITH FOREIGN
NATIONS AND AMONG THE SEVERAL STATES, OR UPON ANY PART OF THE PUBLIC
LANDS AND RESERVATIONS OF THE UNITED STATES (INCLUDING THE
TERRITORIES), OR FOR THE PURPOSE OF UTILIZING THE SURPLUS WATER OR
WATER POWER FROM ANY GOVERNMENT DAM, EXCEPT AS HEREIN PROVIDED .. . ." 
/5/ SECTION 23(B) PROVIDES IN PART: 

" IT SHALL BE UNLAWFUL FOR ANY PERSON, STATE, OR MUNICIPALITY, FOR
THE PURPOSE OF DEVELOPING ELECTRIC POWER, TO CONSTRUCT, OPERATE, OR
MAINTAIN ANY DAM, WATER CONDUIT, RESERVOIR, POWER HOUSE, OR OTHER WORKS
INCIDENTAL THERETO ACROSS, ALONG, OR IN ANY OF THE NAVIGABLE WATERS OF
THE UNITED STATES, OR UPON ANY PART OF THE PUBLIC LANDS OR RESERVATIONS
OF THE UNITED STATES (INCLUDING THE TERRITORIES), OR UTILIZE THE
SURPLUS WATER OR WATER POWER FROM ANY GOVERNMENT DAM, EXCEPT UNDER AND
IN ACCORDANCE WITH THE TERMS OF A PERMIT OR VALID EXISTING RIGHT-OF-WAY
GRANTED PRIOR TO JUNE 10, 1920, OR A LICENSE GRANTED PURSUANT TO THIS
CHAPTER." 

/6/ THE COURT OF APPEALS DID NOT ATTEMPT TO DEFINE "SURPLUS WATER"
AND DID NOT DECIDE WHETHER THE SIX PLANTS INVOLVED IN THIS CASE ARE
WITHIN THE COMMISSION'S LICENSING JURISDICTION UNDER THAT CLAUSE. 
INSTEAD, THE COURT REMANDED THE CASE TO THE COMMISSION "TO DETERMINE IN
THE FIRST INSTANCE WHETHER THE PLANTS INVOLVED IN THIS APPEAL FALL
WITHIN THE CATEGORY ASSERTED BY (THE COMPLAINANTS)."  160 U.S. APP.
D.C. 83, 118, 489 F.2D 1207, 1242. 

/7/ THERMAL-ELECTRIC GENERATING PLANTS USED 120 BILLION GALLONS OF
WATER PER DAY FOR COOLING PURPOSES IN 1971, COMPARED TO APPROXIMATELY
178 MILLION GALLONS OF COOLING WATER NEEDED ON A DAILY BASIS IN 1920. 
SEE ID., AT 105 - 106, N. 111, 489 F.2D, AT 1229 - 1230, N. 111. 
LARGELY FOR ENVIRONMENTAL REASONS, MANY MODERN STEAM PLANTS EVAPORATE A
SIGNIFICANT AMOUNT OF THE WATER WITHDRAWN FOR COOLING PURPOSES INSTEAD
OF RETURNING IT TO THE WATER SOURCE.  CF. N. FABRICANT & R. HALLMAN,
TOWARD A RATIONAL POWER POLICY:  ENERGY, POLITICS, AND POLLUTION 99 -
101 (1971).  PERMANENT LOSS OF LARGE QUANTITIES OF WATER CAN OBVIOUSLY
HAVE A SIGNIFICANT ADVERSE EFFECT ON THE "POWER POTENTIAL" OF THE
NATION'S WATERWAYS. 

/8/ THE PRINCIPAL USE TO BE DEVELOPED AND REGULATED IN THE ACT, AS
ITS TITLE INDICATES, WAS THAT OF HYDROELECTRIC POWER TO MEET THE NEEDS
OF AN EXPANDING ECONOMY."  RPC V. UNION ELECTRIC CO., 381 U.S. 90, 99. 
THE TITLE WAS CHANGED IN 1935 TO THE FEDERAL POER ACT TO REFLECT THE
EXPANDED DUTIES OF THE FEDERAL POWER COMMISSION UNDER TITLE II OF THE
PUBLIC UTILITY ACT OF 1935, 49 STAT. 838, AS AMENDED, 16 U.S.C. 792 -
825U.  THE 1935 ACT ADDED PARTS II AND III TO THE FEDERAL POWER ACT TO
REGULATE THE INTERSTATE TRANSMISSION AND SALE OF ELECTRICITY.  SEE 16
U.S.C. 824 - 825U.  THE ORIGINAL FEDERAL WATER POER ACT BECAME PART I
OF THE FEDERAL POWER ACT. 

/9/ IN 1920 APPROXIMATELY 70% OF THE ELECTRICITY GENERATED IN THE
UNITED STATES WAS PRODUCED BY STEAM POWER.  1 FPC, NATIONAL POWER
SURVEY 63 (1964). 

/10/ THE OPINION OF THE COURT OF APPEALS CONTAINS AN EXCEEDINGLY
THOROUGH ANALYSIS OF THE ATTEMPTS BY THE CONGRESS AND THE EXECUTIVE TO
CONTROL THE DEVELOPMENT OF THE POWER POTENTIAL OF THE NATION'S
WATERWAYS IN THE YEARS PRIOR TO 1918.  160 U.S. APP. D.C., AT 91 - 96,
489 F.2D, AT 1215 - 1220.  SEE ALSO J. KERWIN, FEDERAL WATER-POWER
LEGISLATION (1926); PINCHOT, THE LONG STRUGGLE FOR EFFECTIVE FEDERAL
WATER POWER LEGISLATION, 14 GEO. WASH. L. REV. 9 (1945).  THAT ANALYSIS
REVEALS THAT THE ONLY SEGMENT OF THE POWER INDUSTRY INTENDED TO BE
AFFECTED BY THOSE EARLY FEDERAL REGULATORY INITIATIVES WAS THE
CONSTRUCTION AND MAINTENANCE OF HYDRO-ELECTRIC FACILITIES.  REFERING TO
THOSE EARLY LEGISLATIVE PROPOSALS, THE SPECIAL HOUSE COMMITTEE ON WATER
POWER STATED THAT "(THE SUBJECT OF WATER-POWER LEGISLATION WITH A VIEW
TO THE DEVELOPMENT OF HYDROELECTRIC POWER HAS BEEN A MATTER OF VERY
GREAT PUBLIC INTEREST FOR A NUMBER OF YEARS."  H.R. REP. NO. 715, 65TH
CONG., 2D SESS., 15 (EMPHASIS ADDED). 

/11/ THE HOUSE REPORT ACCOMPANIED S. 1419.  THE COMMITTEE ON WATER
POWER PROPOSED SUBSTITUTING THE PROVISIONS OF THE ADMINISTRATION BILL,
H.R. 8716, FOR THOSE ORIGINALLY CONTAINED IN S. 1419.  THE REPORT OF
THE SENATE COMMERCE COMMITTEE TO ACCOMPANY THE ORIGINAL VERSION OF THE
SENATE BILL STATED THAT S. 1419 PROVIDED FOR "THE DEVELOPMENT OF
HYDROELECTRIC ENERGY PRODUCED BY UTILIZATION OF WATER POWER."  S. REP.
NO. 179, 65TH CONG., 2D SESS., 2. 

/12/ THE HOUSE REPORT ADDED THAT THE NEED FOR WATER POWER
LEGISLATION "IS CLEARLY SET FORTH BY SECRETARY (OF AGRICULTURE) HOUSTON
IN A RECENT REPORT."  H.R. REP. NO. 61, 66TH CONG., 1ST SESS., 4.  IN
THE REPORT, SECRETARY HOUSTON HAD EXPLAINED TO THE HOUSE: 

"' THE EXIGENCIES OF WAR BROUGHT TO LIGHT DEFECTS IN OUR NATIONAL
UTILIZATION OF POWER WHICH HAD NOT BEEN FULLY FEALIZED.  OPERATING
UNDER STATUTES ENACTED WHEN THE ELECTRICAL INDUSTRY WAS IN ITS INFANCY,
WE HAD PERMITTED OUR VASE WATER-POWER RESOURCES TO REMAIN ALMOST
UNTOUCHED, TURNING TO COAL AND OIL AS THE MAIN SOURCE OF POWER; FOR
STEAM POWER COULD BE DEVELOPED MORE QUICKLY AND EASILY WITH FEWER LEGAL
RESTRICTIONS AND WITH GREATER SECURITY TO THE INVESTMENT.  . . . THE
POWER REQUIREMENTS OF THIS COUNTRY WILL NOT BE MET UNTIL WE DEVELOP OUR
WATER POWERS, TIE THEM IN WITH STEAM PLANTS LOCATED AT THE MINE ITSELF
AND OPERATE ALL IN GREAT INTERSTATE SYSTEMS.  THESE CONSIDERATIONS WERE
PRESENTED BEFORE THE SPECIAL COMMITTEE OF THE HOUSE OF REPRESENTATIVES
IN THE HEARINGS HELD ON THE WATER-POWER BILL DURING THE LAST CONGRESS. 
THE NEED OF ADEQUATE LEGISLATION IS NO LESS URGENT NOW.'"  ID., AT 4 -
5. 

/13/ THE FIRST ANNUAL REPORT TO CONGRESS ALSO CONTAINED AN OPINION
FROM THE COMMISSION'S CHIEF COUNSEL CONCLUDING THAT THE AGENCY LACKED
JURISDICTION TO APPROVE A RIGHT OF WAY OVER PUBLIC LANDS FOR A
TRANSMISSION LINE THAT WOULD TRANSMIT ELECTRICITY GENERATED BY A STEAM
PLANT: 

" I THINK IT IS FAIRLY TO BE INFERRED FROM THE CONTEXT, AS WELL AS
THE CIRCUMSTANCES SURROUNDING THE ENACTMENT OF THE LEGISLATION, THAT IT
WAS THE PURPOSE OF CONGRESS TO CONFER EXCLUSIVE JURISDICTION ON THE
FEDERAL POWER COMMISSION, EXCEPT AS PROVIDED THEREIN, OVER THE MATTER
OF ISSUING LICENSES FOR POWER PROJECTS, OR PARTS THEREOF, FOR THE
DEVELOPMENT OF HYDROELECTRIC POWER, AND THAT IT WAS NOT INTENDED TO
VEST THE COMMISSION WITH JURISDICTION OVER THE PUBLIC LANDS FOR OTHER
PURPOSES.  IF THIS VIEW BE CORRECT, IT FOLLOWS THAT WHERE A PROPOSED
TRANSMISSION LINE IS IN NO WAY CONNECTED WITH A WATER-POWER PROJECT THE
COMMISSION IS WITHOUT JURISDICTION TO LICENSE THE SAME."  FPC, FIRST
ANNUAL REPORT 156. 

/14/ THE COMMISSION'S VIEW OF THE LIMITED SCOPE OF ITS LICENSING
JURISDICTION HAS BEEN RESTATED IN MOST OF ITS ANNUAL REPORTS TO
CONGRESS.  SEE, E.G., 1935 ANNUAL REPORT 1; 1940 ANNUAL REPORT 1 - 3;
1946 ANNUAL REPORT 1 - 3; 1950 ANNUAL REPORT 3; 1956 ANNUAL REPORT 3,
5; 1959 ANNUAL REPORT 4; 1962 ANNUAL REPORT 8, 12 - 13; 1964 ANNUAL
REPORT 10 - 11, 13; 1966 ANNUAL REPORT 8 - 9, 13; 1969 ANNUAL REPORT
25; 1972 ANNUAL REPORT 26 - 27. 

/15/ IN 1930 A REORGANIZATION ACT WAS ENACTED TO IMPROVE THE
FUNCTIONING OF THE COMMISSION BY MAKING IT AN INDEPENDENT AGENCY WITH
AUTHORITY TO EMPLOY ITS OWN FULL-TIME STAFF.  46 STAT. 797, CODIFIED,
AS AMENDED, AT 16 U.S.C. 792, 793, 797(D). 

/16/ TITLE II OF THE PUBLIC UTILITY ACT OF 1935, 49 STAT. 838,
EXPANDED THE FUNCTIONS OF THE FEDERAL POWER COMMISSION BY AUTHORIZING
THE REGULATION OF THE INTERSTATE TRANSMISSION ANS SALE OF ELECTRICITY. 
THE COMMISSION'S NEW REGULATORY POWERS WERE CODIFIED AS PARTS II AND
III OF THE NEW FEDERAL POWER ACT.  SEE 16 U.S.C. 824 - 825U.  THE
ORIGINAL FEDERAL WATER POWER ACT BECAME PART I OF THE NEW FEDERAL POWER
ACT.  DESPITE THE BREADTH OF THE ADDITIONAL POWERS GIVEN THE
COMMISSION, ITS AUTHORITY UNDER THE LICENSING PROVISIONS OF THE FEDERAL
WATER POWER ACT REMAINED VIRTUALLY UNCHANGED.  SEE H.R.REP.  NO. 1318,
74TH CONG., 1ST SESS., 7; CF. FPC V. UNION ELECTRIC CO., 381 U.S. 90,
91 N. 2. 

/17/ IN FACT, 23(B) OF THE ACT, 16 U.S.C. 817, MAKES IT UNLAWFUL FOR
AN UNLICENSED PARTY "FOR THE PURPOSE OF DEVELOPING ELECTRIC POWER, TO .
. . UTILIZE THE SURPLUS WATER OR WATER POWER FROM ANY GOVERNMENT DAM." 
ALTHOUGH THE USE OF COOLING WATER BY THERMAL-ELECTRIC POWER PLANTS IS
NECESSARY TO INCREASE THE EFFICIENCY OF THE GENERATING PROCESS, SEE 160
U.S. APP. D.C., AT 108 N. 128, 489 F.2D, AT 1232 N. 128, IT IS MOST
NATURAL TO READ 23(B)'S REFERENCE TO USING WATER "FOR THE PURPOSE OF
DEVELOPING ELECTRIC POWER" TO MEAN HARNESSING THE POWER OF FALLING
WATER TO PRODUCE ELECTRIC ENERGY.  THE "PLAIN MEANING"  OF 23(B),
THEREFORE, WOULD SEEM TO LIMIT THE SCOPE OF THE COMMISSION'S LICENSING
JURISDICTION UNDER THE SURPLUS WATER CLAUSE TO HYDROELECTRIC
FACILITIES. 

/18/ FOR EXAMPLE, THE ACT OF AUGUST 11, 1888, 25 STAT. 400, PROVIDED
IN PART:  "(THE SECRETARY OF WAR IS HEREBY AUTHORIZED AND EMPOWERED TO
GRANT LEASES OR LICENSES FOR THE USE OF THE WATER POWERS ON THE
MUSKINGUM RIVER AT SUCH RATE AND ON SUCH CONDITIONS AND FOR SUCH
PERIODS OF TIME AS MAY SEEM TO HIM JUST, EQUITABLE, AND EXPEDIENT:
PROVIDED, THAT THE LEASES OR LICENSES SHALL BE LIMITED TO THE USE OF
THE SURPLUS WATER NOT REQUIRED FOR NAVIGATION."  ID., AT 417 (EMPHASIS
ADDED).  SEE ALSO ACT OF SEPT. 19, 1890, C. 907, 26 STAT. 426, 447; ACT
OF JUNE 13, 1902, 32 STAT. 331, 358, AS AMENDED, ACT OF JUNE 28, 1902,
32 STAT. 408, 409; ACT OF MAR. 6, 1906, 34 STAT. 52; ACT OF APR. 23,
1906, 34 STAT. 130; ACT OF MAY 9, 1906, 34 STAT. 183, 184; ACT OF JUNE
25, 1906, C. 3530, 34 STAT. 456, 457; ACT OF MAR. 4, 1907, 34 STAT.
1288; ACT OF MAR. 3, 1909, 35 STAT. 815, 819. 

/19/ THE COMPLAINANTS NOTE THAT IN OTHER LEGISLATION BFORE THE
BEGINNING OF THE 20TH CENTURY CONGRESS HAD USED THE TERM "SURPLUS
WATER" IN CONTEXTS THAT COULD NOT POSSIBLY REFER SOLELY TO THE
DEVELOPMENT OF HYDROELECTRIC POWER.  E.G., 19 STAT. 377, C. 107, AS
AMENDED, 43 U.S.C. 321, RESERVING FOR PUBLIC USE "ALL SURPLUS WATER"
NOT ACTUALLY USED FOR IRRIGATION AND RECLAMATION ON DESERT LAND ENTERED
BY PRIVATE INDIVIDUALS.  BUT THE RELEVANT STATUTORY HISTORY CLEARLY
INDICATES THAT WHEN THE TERM "SURPLUS WATER" WAS USED IN CONJUNCTION
WITH "WATER POWER" OR "SURPLUS WATER POWER,C AS IN 4(E) OF PART I OF
THE FEDERAL POWER ACT, THAT TERM ALWAYS REFERRED TO THE USE OF SUCH
WATER FOR THE DEVELOPMENT OF HYDROELECTRIC POWER. 

/20/ THE HOUSE COMMITTEE REPORTED THAT: 

" SECTION 14 IS A NEW SECTION AUTHORIZING THE SECRETARY OF WAR, WITH
THE APPROVAL OF THE CHIEF OF ENGINEERS, TO LEASE TO ANY APPLICANT WHO
HAS COMPLIED WITH THE LAWS OF THE STATE IN WHICH THE DAM MAY BY
LOCATED, ANY SURPLUS POWER DEVELOPED BY A DAM THAT IS CONSTRUCTED OR
OWNED BY THE UNITED STATES FOR THE PURPOSES OF NAVIGATION."  H.R. REP.
NO. 592, 63RD CONG., 2D SES., 6. 

/21/ SEE, E.G., 51 CONG. REC. 11403 (REMARKS OF REP. MANN):  " WE
HAVE MANY NAVIGATION DAMS IN THE UNITED STATES.  AT MANY OF THEM THERE
IS SURPLUS WATER WHICH MAY BE USED FOR THE DEVELOPMENT OF WATER POWER,
AND WE AUTHORIZE THE SECRETARY OF WAR TO LEASE THAT SURPLUS WATER POWER
AND TO MAKE CHARGES FOR IT."  SEE ALSO 51 CONG. REC. APP. 768 (REMARKS
OF REP. BROWN). 

/22/ SEE, E.G., ID., AT 12336 (REMARKS OF REP. UNDERWOOD); ID., AT
12593 (REMARKS OF REP. BRYAN); ID., AT 12777 (REMARKS OF REP. RAINEY). 

/23/ SECTION 10 OF THE SENATE BILL AUTHORIZED THE SECRETARY OF WAR
TO LEASE "THE RIGHT TO UTILIZE THE SURPLUS WATER OVER AND ABOVE THAT
REQUIRED FOR NAVIGATION AT ANY (FEDERAL) NAVIGATION DAM . . . "  S.
6413, 63D CONG., 2D SESS. 

/24/ O.C. MERRILL, DEPARTMENT OF AGRICULTURE ENGINEER AND ONE OF THE
PRINCIPAL DRAFTSMEN OF THE BILL, TESTIFIED IN RESPONSE TO QUESTIONING
BY MEMBERS OF THE COMMITTEE AS TO THE SCOPE OF THE PROPOSED
COMMISSION'S LICENSING AUTHORITY:  " THIS BILL IS CONCERNED ONLY, IN
SUCH INSTANCES, IN THE DEVELOPMENT OF POWER.  WHEN THAT IS DONE THE
LICENSEE MAY MAKE ANY OTHER USE THAT IS AVAILABLE.  . . . THE ONLY
THING THIS BILL IS DOING IS TO GRANT A LICENSE FOR THAT PARTICULAR
POWER DEVELOPMENT OCCUPYING THE PUBLIC LANDS.  THERE IS NO ASSUMPTION
OF ANY CONTROL WHATEVER OVER ANY OTHER USES THE LICENSEE MAY MAKE OF
THAT WATER OUTSIDE OF THAT DEVELOPMENT."  HEARINGS ON WATER POWER
BEFORE THE HOUSE COMMITTEE ON WATER POWER, 65TH CONG., 2D SESS., 93. 
SIMILARLY, REPRESENTATIVE EDWARD TAYLOR EXPLAINED:  "(THIS BILL IS FOR
THE PURPOSE, AS I UNDERSTAND IT, OF GIVING AUTHORITY TO CREATE POWER
AND UTILIZE WATER FOR POWER PURPOSES."  ID., AT 96. 

/25/ RECOGNIZING THAT THE AUTHORITY OF THE WATERWAYS COMMISSION "IS
VERY MUCH MORE COMPREHENSIVE AND COVERS INFINITELY MORE GROUND THAN THE
WATER POWER COMMISSION CREATED IN THE PENDING ACT," 59 CONG. REC. 1176
(REMARKS OF SEN. RANSDELL), AN AMENDMENT WAS ADOPTED ON THE SENATE
FLOOR TO CONTINUE THE EXISTENCE OF THE WATERWAYS COMMISSION.  ID., AT
1535.  THAT AMENDMENT, HOWEVER, WAS ELIMINATED IN CONFERENCE.  SEE H.R.
REP. NO. 910, 66TH CONG., 2D SESS. 13 - 14. 

/26/ THE INTERPRETATION OF THE SURPLUS WATER CLAUSE OF 4(E) AS
LIMITED TO USE OF SUCH WATER BY HYDROELECTRIC FACILITIES IS REINFORCED
BY LEGISLATION ENACTED PRIOR AND SUBSEQUENT TO THE FEDERAL WATER POWER
ACT.  FOR EXAMPLE, THE ACT OF FEBRUARY 25, 1920, 41 STAT. 451, 43
U.S.C. 521, AUTHORIZED THE SECRETARY OF THE INTERIOR, "IN CONNECTION
WITH THE OPERATIONS UNDER THE RECLAMATION LAW . . . TO SUPPLY WATER
FROM ANY PROJECT IRRIGATION SYSTEM FOR OTHER PURPOSES THAN IRRIGATION,
UPON SUCH CONDITIONS OF DELIVERY, USE, AND PAYMENT AS HE MAY DEEM
PROPER . . . ."  SIMILARLY, THE SECRETARY OF THE INTERIOR IS AUTHORIZED
UNDER THE BOULDER CANYON PROJECT ACT, 45 STAT. 1060, AS AMENDED, 43
U.S.C. 617D, "TO CONTRACT FOR THE STORAGE OF WATER IN (THE HOOVER DAM)
RESERVOIR AND FOR THE DELIVERY THEREOF . . . FOR IRRIGATION AND
DOMESTIC USES.  . . ."  THE COURT OF APPEALS RECOGNIZED THAT THOSE AND
OTHER COMPARABLE PROVISIONS, E.G., 58 STAT. 890, AS AMENDED, 33 U.S.C.
708, DEMONSTRATE THAT " CONGRESS HAS FOR A LONG TIME BEEN CONCERNED
WITH THE CONTROLLED DISPOSITION OF SURPLUS FEDERAL WATER AND POWER, AND
HAS OFTEN EXPRESSED THIS CONCERN BY GRANTING PLENARY CONTROL OVER SUCH
DISPOSITION TO A FEDERAL AGENCY."  160 U.S. APP. D.C., AT 118, 489
F.2D, AT 1242.  BUT THOSE PROVISIONS ALSO TEND TO INDICATE THAT WHEN
CONGRESS HAS WANTED TO CONFER THE BROAD AUTHORITY TO DISPOSE OF
"SURPLUS WATER" FOR PURPOSES OTHER THAN HYDROELECTRIC POWER
DEVELOPMENT, IT HAS DONE SO EXPLICITLY AND UNAMBIGUOUSLY.     /27/ SEE
ID AT 107 N. 124, 489 F.2D, AT 1231 N. 124; 1 FPC, NATIONAL POWER
SURVEY 63 (1964); CF. FABRICANT & HALLMAN, SUPRA, N. 7, AT 52. 

/28/ THE TOTAL GENERATING CAPACITY OF ALL STEAM PLANTS IN THE UNITED
STATES IN 1920 WAS UNDER 90000 MEGAWATTS.  EDISON ELECTRIC INSTITUTE,
HISTORICAL STATISTICS OF THE ELECTRIC UTILITY INDUSTRY THROUGH 1970,
P.4 (2D ED.)  BY 1970 TOTAL INSTALLED CAPACITY OF CONVENTIAL STEAM
PLANTS WAS MORE THAN 275,000 MEGAWATTS.  IBID. THERMAL-ELECTRIC PLANTS
IN 1971 USED 120 BILLION GALLONS OF COOLING WATER PER DAY, COMPARED TO
178 MILLION GALLONS PER DAY IN 1920.  SEE 160 U.S. APP. D.C. AT 105 -
U/L, N. 111, 489 F.2D, AT 1229 - 1230, N. 111.  A SUBSTANTIAL AMOUNT OF
THE WATER USED FOR COOLING PURPOSES BY MANY MODERN STEAM PLANTS IS
EVAPORATED, RATHER THAN RETURNED TO THE WATER SOURCE.  CF. FABRICANT &
HALLMAN, SUPRA, N. 7, AT 99 - 101. 

/29/ CONGRESS HAS DELEGATED TO THE SECRETARY OF THE INTERIOR THE
FEDERAL AUTHORITY TO ALLOCATE FOR CONSUMPTIVE USES WATER FROM
GOVERNMENT DAMS IN THE COLORADO RIVER BASIN.  SEE GENERALLY ARIZONA V.
CALIFORNIA, 373 U.S. 546.  BECAUSE THE SALINITY OF WATER USED FOR
COOLING PURPOSES BY THERMAL-ELECTRIC PLANTS IS INCREASED BY REASON OF
PARTIAL EVAPORATION AND BECAUSE THE DOWNSTREAM COLORADO RIVER SYSTEM
ALREADY SUFFERS FROM A SUBSTANTIAL SALINITY PROBLEM, THE SECRETARY
REQUIRED THE PLANTS INVOLVED IN THIS CASE TO AGREE TO EVAPORATE ALL
WATER USED, RATHER THAM RETURN IT TO THE RIVER SYSTEM, AS PART OF THEIR
CONTRACTS FOR THE USE OF COLORADO RIVER WATER. 

/30/ THERMAL-ELECTRIC POWER GENERATING PLANTS USED 178 MILLION
GALLONS OF COOLING WATER PER DAY IN 1920, SEE N. 28, SUPRA, WHICH IS
APPROXIMATELY 546 ACRE FEET PER DAY.  (THERE ARE 325,851 GALLONS IN AN
ACRE FOOT, THE AMOUNT OF WATER NEEDED TO COVER AN AREA OF ONE ACRE TO A
DEPTH OF ONE FOOT.)  THE SIX PLANTS INVOLVED IN THIS CASE WILL USE MORE
THAN 650 ACRE FEET OF WATER PER DAY.  SEE 160 U.S. APP. D.C., AT 90,
489 F.2D, AT 1214. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

JOSEPH J. BRECHER ARGUED THE CAUSE AND FILED A BRIEF FOR RHE
CHEMEHUEVI TRIBE OF INDIANS ET AL. IN ALL CASES.  DEPUTY SOLICITOR
GENERAL WALLACE ARGUED THE CAUSE FOR THE FEDERAL POWER COMMISSION IN
ALL CASES.  ON THE BRIEF WERE SOLICITOR GENERAL BORK, MARK L. EVANS,
LEO E. FORQUER, DREXEL D. JOURNEY, GEORGE W. MC HENRY, JR., AND DANIEL
GOLDSTEIN.  NORTHCUTT ELY ARGUED THE CAUSE FOR THE ARIZONA PUBLIC
SERVICE CO. ET AL., IN ALL CASES.  WITH HIM ON THE BRIEFS WERE HARRY A.
POTH, JR., PEYTON G. BOWMAN III, WILLIAM DUNCAN, BURT S. PINES, REX E.
LEE, C. HAYDEN AMES, JOHN R. BURY, L.V. ROBERTSON, JR., DONALD E.
DICKERMAN, SIDNEY G. BAUCOM, AND ROBERT GORDON. 

BRIEFS OF AMICI CURIAE IN ALL CASES WERE FILED BY FRANCIS M. SHEA,
RICHARD T. CONWAY, AND DAVID BOOTH BEERS FOR MONTANA POWER CO. ET AL.,
AND BY ROBERT C. MC DIARMID FOR THE ELECTRIC AND WATER PLANT BOARD OF
FRANKFORT, KENTUCKY ET AL. JAMES H. GOETZ FILED A BRIEF FOR BUFFALO
RAPIDS IRRIGATION PROJECT ET AL. AS AMICI CURIAE IN NOS. 73 - 1380 AND
73 - 1666.  FRANK WILLIAMS FRISK, JR., FILED A BRIEF FOR THE AMERICAN
PUBLIC POWER ASSN. AS AMICUS CURIAE IN NOS. 73 - 1666 AND 73 - 1667. 
CAMERON F. MC RAE, HARRY H. VOIGHT, AND E. DAVID OANE FILED A BRIEF FOR
THE EDISON ELECTRIC INSTITUTE AS AMICUS CURIAE IN NO. 73 - 1667. 
..END :























DE COTEAU V. DISTRICT COUNTY COURT, 420 U.S. 425 


       DE COTEAU, NATURAL MOTHER AND NEXT FRIEND OF FEATHER ET AL.

           V. DISTRICT COUNTY COURT FOR THE TENTH JUDICAL DISTRICT

        CERTIORARI TO THE SUPREME COURT OF SOUTH DAKOTA

        NO. 73 - 1148.  ARGUED DECEMBER 16, 1974--, DECIDED MARCH
3,

           1975; 

TOGETHER WITH NO. 73 - 1500, ERICKSON, WARDEN V. UNITED STATES EX
REL. FEATHER ET AL., ON CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT; NO. 73 - 1148, 87 S.D.--, 211 N.W.2D
843, AFFIRMED; NO. 73 - 1500, 489 F.2D 99, REVERSED. 


    THE LAKE TRAVERSE INDIAN RESERVATION IN SOUTH DAKOTA, CREATED

  BY AN 1867 TREATY, HELD TERMINATED AND RETURNED TO THE PUBLIC

  DOMAIN BY AN 1891 ACT WHICH, IN RATIFICATION OF A PREVIOUSLY

  NEGOTIATED 1889 AGREEMENT BETWEEN THE AFFECTED INDIAN TRIBE AND

  THE UNITED STATES, NOT ONLY OPENED ALL UNALLOTTED LANDS TO

  SETTLEMENT BUT ALSO APPROPRIATED AND VESTED IN THE TRIBE A SUM

  CERTAIN PER ACRE IN PAYMENT FOR THE EXPRESS CESSION AND

  RELINQUISHMENT OF "ALL" OF THE TRIBE'S "CLAIM, RIGHT, TITLE, AND

  INTEREST" IN THE UNALLOTTED LANDS; AND THEREFORE THE SOUTH DAKOTA

STATE COURTS HAVE CIVIL AND CRIMINAL JURISDICTION OVER CONDUCT OF

  MEMBERS OF THE TRIBE ON THE NON-INDIAN, UNALLOTTED LANDS WITHIN

  THE 1867 RESERVATION BORDERS.  THE FACE OF THE ACT AND ITS

  SURROUNDING CIRCUMSTANCES AND LEGISLATIVE HISTORY ALL POINT

  UNMISTAKABLY TO THIS CONCLUSION.  MATTZ V. ARNETT, 412 U.S. 481,

  AND SEYMOUR V. SUPERINTENDENT, 368 U.S. 351, DISTINGUISHED.  PP.

  431 - 449. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

 BURGER, C.J., AND WHITE, BLACKMAN, POWELL, AND REHNQUIST, JJ.,

  JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH

  BRENNAN AND MARSHALL, JJ., JOINED, POST, P. 460. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES, CONSOLIDATED FOR DECISION, RAISE THE SINGLE QUESTION
WHETHER THE LAKE TRAVERSE INDIAN RESERVATION IN SOUTH DAKOTA, CREATED
BY AN 1867 TREATY BETWEEN THE UNITED STATES AND THE SISSETON AND
WAHPETON BANDS OF SIOUX INDIANS, WAS TERMINATED AND RETURNED TO THE
PUBLIC DOMAIN, BY THE ACT OF MARCH 3, 1891, C. 543, 26 STAT. 1035.  IN
EACH OF THE TWO CASES, THE SOUTH DAKOTA COURTS ASSERTED JURISDICTION
OVER MEMBERS OF THE SISSETON-WAHPETON TRIBE FOR ACTS DONE ON LANDS
WHICH, THOUGH WITHIN THE 1867 RESERVATION BORDERS, HAVE BEEN OWNED AND
SETTLED BY NON-INDIANS SINCE THE 1891 ACT.  THE PARTIES AGREE THAT THE
STATE COURTS DID NOT HAVE JURISDICTION IF THESE LANDS ARE " INDIAN
COUNTRY," AS DEFINED IN 18 U.S.C. 1151 /1/ AND THAT THIS QUESTION
DEPENDS UPON WHETHER THE LANDS RETAINED RESERVATION STATUS AFTER 1891. 
/2/ WE HOLD, FOR THE REASONS THAT FOLLOW, THAT THE 1891 ACT TERMINATED
THE LAKE TRAVERSE RESERVATION, AND THAT CONSEQUENTLY THE STATE COURTS
HAVE JURISDICTION OVER CONDUCT ON NON-INDIAN LANDS WITHIN THE 1867
RESERVATION BORDERS. 

I 

THE 1867 BOUNDARIES OF THE LAKE TRAVERSE RESERVATION ENCLOSE
APPROXIMATELY 918,000 ACRES OF LAND.  WITHIN THE 1867 BOUNDARIES, THERE
RESIDE ABOUT 3,000 TRIBAL MEMBERS AND 30,000 NON-INDIANS.  ABOUT 15% OF
THE LAND IS IN THE FORM OF " INDIAN TRUST ALLOTMENTS"; THESE ARE
INDIVIDUAL LAND TRACTS RETAINED BY MEMBERS OF THE SISSETON-WAHPETON
TRIBE WHEN THE REST OF THE RESERVATION LANDS WERE SOLD TO THE UNITED
STATES IN 1891.  THE TRUST ALLOTMENTS ARE SCATTERED IN A RANDOM PATTERN
THROUGHOUT THE 1867 RESERVATION AREA.  THE REMAINDER OF THE RESERVATION
LAND WAS PURCHASED FROM THE UNITED STATES BY NON-INDIAN SETTLERS AFTER
1891, AND IS PRESENTLY INHABITED BY NON-INDIANS. 

IT IS COMMON GROUND HERE THAT INDIAN CONDUCT OCCURRING ON THE TRUST
ALLOTMENTS IS BEYOND THE STATE'S JURISDICTION, BEING INSTEAD THE PROPER
CONCERN OF TRIBAL OR FEDERAL AUTHORITIES.  IN THE TWO CASES BEFORE US,
HOWEVER, THE STATE ASSERTED JURISDICTION OVER INDIANS BASED ON CONDUCT
OCCURRING ON NON-INDIAN, UNALLOTTED LAND WITHIN THE 1867 RESERVATION
BORDERS. 

THE PETITIONER IN NO. 73 - 1148, CHERYL SPIDER DE COTEAU, IS THE
NATURAL MOTHER OF HERBERT JOHN SPIDER AND ROBERT LEE FEATHER; ALL ARE
ENROLLED MEMBERS OF THE SISSETON-WAHPETON TRIBE.  BOTH CHILDREN HAVE
BEEN ASSIGNED TO FOSTER HOMES BY ORDER OF THE RESPONDENT DISTRICT
COUNTY COURT FOR THE TENTH JUDICAL DISTRICT OF SOUTN DAKOTA.  THE
PETITIONER GAVE ROBERT UP FOR ADOPTION IN MARCH OF 1971, AND HERBERT
WAS LATER SEPARATED FROM HER THROUGH NEGLECT AND DEPENDENCY PROCEEDINGS
IN THE RESPONDENT COURT, INITIATED BY THE STATE WELFARE DEPARTMENT.  ON
AUGUST 31, 1972, THE PETITIONER COMMENCED A HABEAS CORPUS ACTION IN A
STATE COURT, ALLEGING THAT THE RESPONDENT HAD LACKED JURISDICTION TO
ORDER HER CHILDREN SEPARATED FROM HER AND ASKING THAT THEY BE RELEASED
FROM THE CUSTODIAL PROCESS OF THE RESPONDENT.  AFTER A HEARING, THE
STATE COURT DENIED THE WRIT, FINDING THAT THE RESPONDENT HAD POSSESSED
JURISDICTION BECAUSE "THE NON-INDIAN LAND, UPON WHICH A PORTION OF THE
ACTS OR OMISSIONS GIVING RISE TO THE ORDER OF THE DISTRICT COUNTY COURT
OCCURRED, IS NOT WITHIN INDIAN COUNTRY.  /3/ WHILE ACKNOWLEDGING THAT
THIS NON-INDIAN PATENTED LAND IS WITHIN THE 1867 BOUNDARIES OF THE LAKE
TRAVERSE RESERVATION, THE COURT NOTED THAT THE TRIBE "HAD SOLD OR
RELINQUISHED (THE NON-INDIAN LAND IN QUESTION) TO THE UNITED STATES
UNDER THE TERMS OF THE AGREEMENT WHICH WAS RATIFIED BY ACTS OF
CONGRESS, MARCH 3, 1891."  THE SOUTH DAKOTA SUPREME COURT AFFIRMED /4/
UPON THE GROUND THAT THE 1891 ACT RATIFIED AN 1889 AGREEMENT BY WHICH 

"THE SISSETON AND WAHPETON BANDS OF INDIANS SOLD THEIR UNALLOTTED
LANDS, AND THE UNITED STATES GOVERNMENT PAID A SUM CERTAIN FOR EACH AND
EVERY ACRE PURCHASED....  THIS, THEN, WAS AN OUTRIGHT CESSION AND SALE
OF LANDS BY THE INDIANS TO THE UNITED STATES.  THE LAND SOLD WAS
SEPARATED FROM THE RESERVATION BY CONGRESS AND BECAME PART OF THE
PUBLIC DOMAIN.  /5/ 

THE RELATORS IN NO. 73 - 1500 ARE ENROLLED MEMBERS OF THE TRIBE WHO
WERE CONVICTED IN SOUTH DAKOTA COURTS OF VARIOUS VIOLATIONS OF THE
STATE'S PENAL LAWS COMMITTED ON NON-INDIAN LANDS WITHIN THE 1867
RESERVATION BOUNDARIES.  THE RELATORS, IN THE CUSTODY OF A STATE
PENITENTIARY, SEPARATELY PETITIONED FOR WRITS OF HABIAS CORPUS IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA, ALLEGING
THAT THE STATE COURTS HAD LACKED CRIMINAL JURISDICTION OVER THEIR
CONDUCT WITHIN THE 1867 RESERVATION BOUNDARIES.  THE DISTRICT COURT
SUMMARILY DENIED THE PETITIONS, BUT THE COURT OF APPEALS FOR THE EIGHTH
CIRCUIT REVERSED.  /6/ IN DE MARRIAS V. SOUTH DAKOTA, 319 F.2D 845,
THAT COURT HAD PREVIOUSLY HELD THAT THE 1891 ACT HAD TERMINATED THE
LAKE TRAVERSE RESERVATION, LEAVING ONLY ALLOTTED INDIAN LANDS WITHIN
TRIBAL OR FEDERAL JURISDICTION.  BUT IN THE PRESENT CASE THE COURT OF
APPEALS OVERRULED ITS DE MARRIAS DECISION, FINDING IT INCONSISTENT WITH
THE PRINCIPLES OF STATUTORY CONSTRUCTION ESTABLISHED BY THIS COURT IN
MATTZ V. ARNETT, 412 U.S. 481, AND SEYMOUR V. SUPERINTENDENT, 368 U.S.
351.  THE COURT OF APPEALS ACCORDINGLY HELD THAT "(THE BOUNDARIES OF
THE LAKE TRAVERSE INDIAN RESERVATION REMAIN AS THEY WERE ESTABLISHED IN
1867.  THE SCENE OF THE ALLEGED CRIMES IS, THEREFORE, WITHIN INDIAN
COUNTRY.  SOUTH DAKOTA HAD NO JURISDICTION TO TRY APPELLANTS."  489
F.2D 99, 103. 

WE GRANTED CERTIORARI IN THE TWO CASES, 417 U.S. 929, TO RESOLVE THE
CONFLICT BETWEEN THE SUPREME COURT OF SOUTH DAKOTA AND THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT AS TO THE EFFECT OF THE 1891 ACT ON
SOUTH DAKOTA'S CIVIL AND CRIMINAL JURISDICTION OVER UNALLOTTED LANDS
WITHIN THE 1867 RESERVATION BOUNDARIES. 

II 

WHEN THE SIOUX NATION REBELLED AGAINST THE UNITED STATES IN 1862,
THE SISSETON AND WAHPETON BANDS OF THE NATION REMAINED LOYAL TO THE
FEDERAL GOVERNMENT, MANY MEMBERS SERVING AS "SCOUTS" FOR THE FEDERAL
TROOPS.  THIS LOYALTY WENT UNRECOGNIZED, HOWEVER, WHEN THE GOVERNMENT
CONFISCATED THE SIOUX LANDS AFTER THE REBELLION.  IN A BELATED ACT OF
GRATITUDE, THE UNITED STATES ENTERED INTO A TREATY WITH THE SISSETON
WAHPETON TRIBE IN 1867.  THE TREATY GRANTED THE TRIBE A PERMANENT
RESERVATION IN THE LAKE TRAVERSE AREA, AND PROVIDED FOR TRIBAL SELF
GOVERNMENT UNDER THE SUPERVISION OF FEDERAL AGENTS.  /7/ 

BUT FAMILIAR FORCES SOON BEGAN TO WORK UPON THE LAKE TRAVERSE
RESERVATION.  A NEARBY AND GROWING POPULATION OF WHITE FARMERS,
MERCHANTS, AND RAILROAD MEN BEGAN URGING AUTHORITIES IN WASHINGTON TO
OPEN THE RESERVATION TO GENERAL SETTLEMENT.  THE INDIANS, SUFFERING
FROM DISEASE AND BAD HARVESTS, DEVELOPED AN INCREASING NEED FOR CASH
AND DIRECT ASSISTANCE.  /8/ MEANWHILE, THE GOVERNMENT HAD ALTERED ITS
GENERAL POLICY TOWARD THE INDIAN TRIBES.  AFTER 1871, THE TRIBES WERE
NO LONGER REGARDED AS SOVEREIGN NATIONS AND THE GOVERNMENT BEGAN TO
REGULATE THEIR AFFAIRS THROUGH STATUTE OR THROUGH CONTRACTUAL
AGREEMENTS RATIFIED BY STATUTE.  /9/ IN 1887, THE GENERAL ALLOTMENT ACT
(OR DAWES ACT) WAS ENACTED IN AN ATTEMPT TO RECONCILE THE GOVERNMENT'S
RESPONSIBILITY FOR THE INDIANS' WELFARE WITH THE DESIRE OF NON-INDIANS
TO SETTLE UPON RESERVATION LANDS.  /10/ THE ACT EMPOWERED THE PRESIDENT
TO ALLOT PORTIONS OF RESERVATION LAND TO TRIBAL MEMBERS AND, WITH
TRIBAL CONSENT, TO SELL THE SURPLUS LANDS TO WHITE SETTLERS, WITH THE
PROCEEDS OF THESE SALES BEING DEDICATED TO THE INDIANS' BENEFIT.  SEE
MATTZ V. ARNETT, 412 U.S., AT 496 - 497. 

AGAINST THIS BACKGROUND, A SERIES OF NEGOTIATIONS TOOK PLACE IN 1889
WITH THE OBJECTIVE OF OPENING THE LAKE TRAVERSE RESERVATION TO
SETTLEMENT.  IN APRIL OF THAT YEAR, A SOUTH DAKOTA BANKER, D.W. DIGGS,
SENT TO THE SECRETARY OF THE INTERIOR A REQUEST ON BEHALF OF THE LOCAL
WHITE COMMUNITY THAT RESERVATION LANDS BE MADE AVAILABLE FOR COMMERCE,
FARMING, AND RAILROAD DEVELOPMENT.  /11/ IN MAY, DIGGS MET WITH A
COUNCIL OF TRIBAL LEADERS, WHO TOLD HIM THAT THE TRIBE WOULD CONSIDER
SELLING THA RESERVED LANDS IF THE GOVERNMENT WOULD FIRST PAY A "LOYAL
SCOUT CLAIM" WHICH THE TRIBE BELIEVED WAS OWING AS PART OF THE 1867
TREATY.  SPOKESMEN FOR THE TRIBE WERE QUOTED IN THE LOCAL PRESS THAT
MONTH AS FOLLOWS: 

" WE NEVER THOUGHT TO KEEP THIS RESERVATION FOR OUR LIFETIME. 

        .  .  .  .  . 

     "... NOW THAT SOUTH DAKOTA HAS COME IN AS A STATE WE HAVE SOME

  ONE TO GO TO, TO RIGHT OUR WRONGS.  THE INDIANS HAVE TAKEN THEIR

 LAND IN SEVERALTY.  THEY ARE WAITING FOR PATENTS.  THE INDIANS

  ARE ANXIOUS TO GET PATENTS.  WE ARE WILLING THE SURPLUS LAND

  SHOULD BE SOLD.  WE DON'T EXPECT TO KEEP RESERVATION.  WE WANT TO

  GET THE BENEFIT OF THE SALE.  IF THE GOVERNMENT WILL PAY WHAT

  THEY OWE, WE WILL BE PLEASED WITH THE OPENING.  WHEN THE

  GOVERNMENT WHAT THEY OWE, AND PAY WHAT THEY AGREE PER ACRE, WE

  WILL BE PLEASED WITH THE OPENING.  WHEN THE GOVERNMENT ASKS ME TO

  DO ANYTHING, I AM ALWAYS WILLING TO DO IT.  I HOPE YOU WILL TRY

  TO GET THE GOVERNMENT TO DO WHAT IS RIGHT. 

      " IF THE GOVERNMENT WILL DO THIS, IT WILL BENEFIT BOTH THE

  INDIANS AND THE WHITES (AND ILLUSTRATES BY HOLDING UP HALF A

  DOZEN KEYS (IN A) PERPENDICULAR POSITION, SEPARATELY), WE ALL

  STAND THIS WAY (AND THEN, PRESSING THEM AGAINST EACH OTHER), WE

  WILL BE AS ONE KEY.  WHEN THE RESERVATION IS OPEN WE MEET AS ONE

  BODY.  WE BE AS ONE. 

     ". . . IF WE GET THE MONEY WE WILL OPEN UP.  YOUR COMMITTEE

  NEEDN'T BE DISCOURAGED, WE WILL OPEN UP. 

". . . WE ARE ANXIOUS TO BECOME CITIZENS AND VOTE.  WE HAVE

  LAID BEFORE YOU ALL WE HAVE TO SAY FROM OUR HEARTS . . .  /12/ 

BY SUMMER, THE COMMISSIONER OF INDIAN AFFAIRS HAD APPARENTLY BEEN
WON OVER, FOR IN AUGUST 1889, HE SENT TO THE SECRETARY OF THE INTERIOR
A SET OF DRAFT INSTRUCTIONS FOR THE GUIDANCE OF A COMMISSION TO
NEGOTIATE WITH THE SISSETON AND WAHPETON INDIANS FOR THE SALE OF THEIR
SURPLUS LANDS.  /13/ THE INSTRUCTIONS NOTED THAT THE NEGOTIATIONS WOULD
BE PURSUANT TO 5 OF THE GENERAL ALLOTMENT ACT, THAT THE ALLOTMENT OF
INDIVIDUAL TRACTS OF RESERVATION LAND TO TRIBAL MEMBERS WAS ALREADY
"VIRTUALLY.  . .  COMPLETED," AND THAT "THE INDIANS DESIRE TO SELL A
PORTION AT LEAST OF THEIR SURPLUS (I.E., UNALLOTTED) LANDS." 

WHILE THESE PROPOSED INSTRUCTIONS SUGGESTED THAT SALE JK///L THE
SURPLUS LANDS MIGHT BE "INADVISABLE," THE NEGOTIATIONS IN FACT
PROCEEDED TOWARD SUCH A TOTAL SALE.  THE THREE GOVERNMENT
REPRESENTATIVES /14/ WERE APPOINTED IN NOVEMBER, AND TWO WEEKS OF
MEETINGS AT THE RESERVATION PROMPTLY ENSUED.  THE PROCEEDINGS AT THESE
MEETINGS WERE TRANSCRIBED, /15/ AND THE RECORDS SHOW THAT THE INDIANS
WISHED TO SELL OUTRIGHT ALL OF THEIR UNALLOTTED LANDS, ON THREE
CONDITIONS:  THAT EACH TRIBAL MEMBER, REGARDLESS OF AGE OR SEX, RECEIVE
AN ALLOTMENT OF 160 ACRES; THAT CONGRESS APPROPRIATE MONEYS TO MAKE
GOOD ON THE TRIBE'S OUTSTANDING "LOYAL SCOUT CLAIM", AND THAT AN
ADEQUATE SALES PRICE PER ACRE BE ARRIVED AT FOR ALL OF THE UNALLOTTED
LAND.  /16/ 

IN DECEMBER, AN AGREEMENT WAS REACHED AND THE CONTRACT WAS SIGNED BY
THE REQUIRED MAJORITY OF MALE ADULT TRIBAL MEMBERS.  IT TERMS /17/ WERE
ACCURATELY SUMMARIZED BY THE COMMISSIONER OF INDIAN AFFAIRS IN HIS
REPORT TO THE SECRETARY OF THE INTERIOR:  /18/ 

 " BY ARTICLE 1, THE INDIANS CEDE, SELL, RELINQUISH, AND CONVEY

  TO THE UNITED STATES ALL THE UNALLOTTED LAND WITHIN THE

  RESERVATION REMAINING AFTER THE ALLOTMENTS AND ADDITIONAL

  ALLOTMENTS PROVIDED FOR IN ARTICLE 4 SHALL HAVE BEEN MADE. 

     " ARTICLE 2 PROVIDES THAT THE UNITED STATES WILL PAY TO THE

  INDIANS $2.50 PER ACRE FOR THE LANDS CEDED. 

     " ARTICLE 3 PROVIDES FOR THE PAYMENT OF BACK ANNUITIES, AND

  CONTINUES THE ANNUITIES OF $18,400 UNTIL JULY 1, 1901. 

     " ARTICLE 4 PROVIDES FOR THE EQUALIZATION OF ALLOTMENTS SO
THAT

  EACH PERSON, INCLUDING MARRIED WOMEN, SHALL HAVE 160 ACRES." 

PRESIDENT HARRISON IMMEDIATELY SUBMITTED THE AGREEMENT TO CONGRESS
FOR LEGISLATIVE APPROVAL.  WHILE THE SUBSEQUENT LEGISLATIVE HISTORY IS
LARGELY IRRELEVANT TO THE ISSUES BEFORE US, THREE ASPECTS BEAR NOTICE. 
FIRST, THE SEVERAL COMMITTEE REPORTS WHICH COMMENTED ON THE AGREEMENT
RECOGNIZED THAT IF EFFECTED A SIMPLE AND UNQUALIFIED CESSION OF ALL OF
THE UNALLOTTED LANDS TO THE UNITED STATES FOR A SUM CERTAIN.  /19/
SECOND, THE CONGRESS RECOGNIZED THAT THE AGREEMENT COULD NOT BE
ALTERED, AND THEREFORE DEBATE CENTERED LARGELY ON THE DISPOSITION TO BE
MADE BE THE UNITED STATES OF THE LANDS IT HAD ACQUIRED UNDER THE
AGREEMENT; IT WAA DECIDED THAT THESE LANDS SHOULD BE SOLD TO SETTLERS
AT $2.50 PER ACRE UNDER THE HOMESTEAD LAWS.  /20/  THIRD, THE CONGRESS
INCLUDED THE SISSESTON-WAHPETON AGREEMENT IN A COMPREHENSIVE ACT WHICH
ALSO RATIFIED SEVERAL OTHER AGREEMENTS PROVIDING FOR THE OUTRIGHT
CESSION OF SURPLUS RESERVATION LANDS TO THE GOVERNMENT.  /21/ THE OTHER
AGREEMENTS EMPLOYED CESSION LANGUAGE VIRTUALLY IDENTICAL TO THAT IN THE
SISSETON-WAHPETON AGREEMENT, BUT IN THESE OTHER CASES THE INDIANS SOLD
ONLY A DESCRIBED PORTION OF THEIR LANDS, RATHER THAN ALL "UNALLOTTED"
PORTIONS, THE RESULT BEING MERELY A REDUCTION IN THE SIZE OF THE
AFFECTED RESERVATIONS.  /22/ THE INTENDED EFFECT OF ALL OF THESE
RATIFICATION AGREEMENTS WAS MADE CLEAR BY THE SPONSORS OF THE
COMPREHENSIVE LEGISLATION: 

     "ALL THE PENDING AGREEMENTS OR TREATIES FOR THE PURCHASE OF

INDIAN LANDS ARE RATIFIED AND CONFIRMED BY THE PROVISION OF THIS

  BILL... 

     " THE BILL CARRIES THE LARGEST APPROPRIATION EVER CARRIED BY
AN

  INDIAN APPROPRIATION BILL, BUT IT EXTINGUISHES THE INDIAN TITLE

  TO A GREAT DOMAIN AND OPENS IT TO SETTLEMENT BY THE HARDY AND

  PROGESSIVE PIONEERS...."  /23/ 

     "WE DO NOT PRETEND TO MAKE ANY MODIFICATION OR AMENDMENT OF
THE

  AGREEMENTS THEMSELVES.  WE MERELY RATIFY THOSE, AND THEN WE TAKE

  THE ESTATE WE HAVE ACQUIRED IN THIS WAY, AND AFTER PROVIDING FOR

  THE PAYMENT OF THE MONEY, OR WHATEVER IT IS WE HAVE AGREED TO PAY

 THESE INDIANS, WE TAKE THESE LANDED ESTATES AND PARCEL AND DIVIDE

  THEM OUT AMONG THE PEOPLE IN A FASHION THAT WE THINK IS THE MOST

  CONDUCIVE TO THE OCCUPANCY OF THAT COUNTRY BY AN HONEST,

  LABORIOUS, EARNEST, AND FAITHFUT SET OF PEOPLE.  /24/  " THE

  REMAINDER OF THE BILL IS MADE UP OF THE OTHER APPROPRIATIONS

  NECESSARY TO CARRY OUT THE AGREEMENTS THAT WERE MADE WITH INDIANS

  FOR THE SURRENDER OF A LARGE PORTION OF THEIR RESERVATIONS TO THE

  PUBLIC DOMAIN.  IN THE MAIN IT HAS COST THE UNITED STATES BETWEEN

$1.25 AND $1.50 AN ACRE FOR SOME TEN OR ELEVEN MILLION ACRES OF

  LAND.  ALL THIS LAND IS OPENED BY THIS BILL TO SETTLEMENT AS PART

  OF THE PUBLIC DOMAIN UPON THE PAYMENT BE THE SETTLER OF $1.50 AN

  ACRE, FOR ALL EXCEPT THAT WHICH WAS OBTAINED FROM THE SISSETON AN

  WAHPETON RESERVATION, WHICH IS OPEN TO SETTLEMENT AT $2.50 AN

  ACRE, BECAUSE THE UNITED STATES GAVE THE INDIANS FOR THE

  SURRENDER $2.50 AN ACRE."  /25/ 

AS PASSED BY THE CONGRESS, THE 1891 ACT RECITED AND RATIFIED THE
1889 AGREEMENT WITH THE TRIBE AND APPROPRIATED $2,203,000 TO PAY THE
TRIBE FOR THE CEDED LAND AND TO MAKE GOOD THE TRIBE'S "LOYAL SCOUT"
CLAIM.  27, 26 STAT. 1038.  A PORTION OF THE MONEYS WAS MADE AVAILABLE
FOR IMMEDIATE DISTRIBUTION TO TRIBAL MEMBERS, ON A PER CAPITA BASIS,
AND THE REMAINING FUNDS WERE AS HAD BEEN AGREED, "PLACED IN THE
TREASURY OF THE UNITED STATES, TO THE CREDIT OF SAID... INDIANS (AT
FIVE PERCENT INTEREST) ...FOR THE EDUCATION AND CIVILIZATION OF SAID
BANDS OF INDIANS OR MEMBERS THEREOF."  27, 26 STAT. 1039.  THE ACT
FURTHER PROVIDED THAT THE 160-ACRE ALLOTMENTS WERE TO BE EFFECTED "AS
SOON AS PRACTICABLE," PURSUANT TO THE TERMS OF THE GENERAL ALLOTMENT
ACT.  29, 26 STAT. 1039.  FINALLY, THE ACT PROVIDED THAT UPON PAYMENT
OF THE PER CAPITA PURCHASE MONEYS TO THE TRIBE, AND THE COMPLETION OF
THE ENLARGED ALLOTMENT PROCESS, "THE LANDS BY SAID AGREEMENT CEDED,
SOLD, RELINQUISHED, AND CONVEYED TO THE UNITED STATES" SHALL BE OPENED
"ONLY TO ENTRY AND SETTLEMENT (AT $2.50 PER ACRE) UNDER THE HOMESTEAD
AND TOWNSITE LAWS OF THE UNITED STATES, EXCEPTING THE SIXTEENTH AND
THIRTY-SIXTH SECTIONS OF SAID LANDS, WHICH SHALL BE RESERVED FOR COMMON
SCHOOL PURPOSES, AND BE SUBJECT TO THE LAWS OF THE STATE WHEREIN
LOCATED."  30, 26 STAT. 1039. 

ON APRIL 11, 1892, PRESIDENT HARRISON DECLARED OPEN FOR SETTLEMENT
ALL "LANDS EMBRACED IN SAID RESERVATION, SAVING AND EXCEPTING THE LANDS
RESERVED FOR AND ALLOTTED TO SAID INDIANS.  /26/ THE CEDED LANDS WERE
RAPIDLY PURCHASED AND SETTLED BY NON-INDIANS. 

THE JURISDICTIONAL HISTORY SUBSEQUENT TO THE 1891 ACT IS NOT WHOLLY
CLEAR, BUT IT APPEARS THAT STATE JURISDICTION OVER THE CEDED (I.E.,
UNALLOTTED) LANDS WENT VIRTUALLY UNQUESTIONED UNTIL THE 1960'S.  THE
LAKE TRAVERSE RESERVATION WAS ELIMINATED FROM THE MAPS PUBLISHED BY THE
COMMISSIONER OF INDIAN AFFAIRS UNTIL 1908; THEREAFTER, SOME GOVERNMENT
MAPS INCLUDED THE AREA AS AN COPEN" OR "FORMER" RESERVATION, WHILE MORE
RECENT ONES HAVE CHARACTERIZED IT SIMPLY AS A "RESERVATION."  /27/
FEDERAL INDIAN AGENTS HAVE REMAINED ACTIVE IN THE AREA, AND CONGRESS
HAS REGULARLY APPROPRIATED FUNDS FOR THE TRIBE'S WELFARE; /28/ THE
ALLOTTED INDIAN TRACTS HAVE RETAINED THEIR "TRUST" STATUS PURSUANT TO
PERIODIC EXECUTIVE ORDERS.  /29/  A TRIBAL CONSTITUTION DID NOT APPEAR
UNTIL 1946, AND TRIBAL JURISDICTION UNDER IT EXTENDED ONLY TO " INDIAN
OWNED LANDS LYING IN THE TERRITORY WITHIN THE ORIGINAL CONFINES OF THE
SISSETON-WAHPETON LAKE TRAVERSE SIOUX RESERVATION."  /30/ IN 1963, THE
COURT OF APPEALS FOR THE EIGHTH CIRCUIT HELD THAT THE 1891 ACT HAD
TERMINATED THE RESERVATION; IN THE PROCESS, THE COURT NOTED THAT "THE
HIGHEST COURT OF THAT STATE (SOUTH DAKOTA) HAS REPEATEDLY HELD THAT
SOUTH DAKOTA HAS JURISDICTION," AND THAT THE JUSTICE DEPARTMENT HAD
TAKEN A LIKE POSITION.  DE MARRIAS V. SOUTH DAKOTA, 319 F.2D, AT 846. 

BUT THE COMMISSIONER OF INDIAN AFFAIRS APPROVED A NEW TRIBAL
CONSTITUTION IN 1966, WHICH STATED:  " THE JURISDICTION OF THE SISSETON
WAHPETON SIOUX TRIBE SHALL EXTEND TO LANDS LYING IN THE TERRITORY
WITHIN THE ORIGINAL CONFINES OF THE LAKE TRAVERSE RESERVATION AS
DESCRIBED IN ARTICLE III OF THE TREATY OF FEBRUARY 19, 1867."  /31/
APPARENTLY, HOWEVER, NO TRIBAL COURT OR LEGAL CODE WAS ESTABLISHED TO
EXERCISE THIS JURISDICTION.  IN 1972, A FIELD SOLICITOR FOR THE
DEPARTMENT OF THE INTERIOR RENDERED AN OPINION THAT THE 1891 ACT HAD
NOT EXTINGUISHED TRIBAL JURISDICTION OVER THE 1867 RESERVATION LANDS. 
/32/  IN 1973, THE COURT OF APPEALS OVERRULED DE MARRIAS, IN THE
DECISION HERE UNDER REVIEW, AND IN EARLY 1974, AFTER SEVERAL MONTHS OF
PREPARATION, THE TRIBE FORMALLY ESTABLISHED A LAW COURT AND A LEGAL
CODE TO EXERCISE CIVIL AND CRIMINAL JURISDICTION THROUGHOUT THE 1867
RESERVATION LANDS. 

        III 

THIS COURT DOES NOT LIGHTLY CONCLUDE THAT AN INDIAN RESERVATION HAS
BEEN TERMINATED.  "(WHEN CONGRESS HAS ONCE ESTABLISHED A RESERVATION
UNTIL ALL TRACTS INCLUDED WITHIN IT REMAIN A PART OF THE RESERVATION
UNTIL SEPARATED THEREFROM BY CONGRESS."  UNITED STATES V. CELESTINE,
215 U.S. 278, 285.  THE CONGRESSIONAL INTENT MUST BE CLEAR, TO OVERCOME
"THE GENERAL RULE THAT '(DOUBTFUL EXPRESSIONS ARE TO BE RESOLVED IN
FAVOR OF THE WEAK AND DEFENSELESS PEOPLE WHO ARE THE WARDS OF THE
NATION, DEPENDENT UPON ITS PROTECTION AND GOOD FAITH.'"  MC CLANAHAN V.
ARIZONA STATE TAX COMM'N, 411 U.S. 164, 174, QUOTING CARPENTER V. SHAW,
280 U.S. 363, 367.  ACCORDINGLY, THE COURT REQUIRES THAT THE
"CONGRESSIONAL DERERMINATION TO TERMINATE ...BE EXPRESSED ON THE FACE
OF THE ACT OR BE CLEAR FROM THE SURROUNDING CIRCUMSTANCES AND
LEGISLATIVE HISTORY."  MATTZ V. ARNETT, 412 U.S. AT 505.  SEE ALSO
SEYMOUR V. SUPERINTENDENT, 368 U.S. 351, AND UNITED STATES V. NICE, 241
U.S. 591.  IN PARTICULAR, WE HAVE STRESSED THAT RESERVATION TO
SETTLEMENT, EVEN WHEN THE MONEYS PAID FOR THE LAND BY THE SETTLERS ARE
PLACED IN TRUST BY THE GOVERNMENT FOR THE INDIANS' BENEFIT.  MATTZ V.
ARNETT, SUPRA, AND SEYMOUR V. SUPERINTENDENT, SUPRA. 

BUT IN THIS CASE, "THE FACE OF THE ACT," AND ITS "SURROUNDING
CIRCUMSTANCES" AND "LEGISLATIVE HISTORY," ALL POINT UNMISTAKABLE TO THE
CONCLUSION THAT THE LAKE TRAVERSE RESERVATION WAS TERMINATED IN 1891. 
THE NEGOTIATIONS LEADING TO THE 1889 AGREEMENT SHOW PLAINLY THAT THE
INDIANS WERE WILLING TO CONVEY TO THE GOVERNMENT, FOR A SUM CERTAIN,
ALL OF THEIR INTEREST IN ALL OF THEIR UNALLOTTED LANDS.  SEE SUPRA, AT
432 - 437.  THE AGREEMENT'S LANGUAGE, ADOPTED BY MAJORITY VOTE OF THE
TRIBE, WAS PRECISELY SUITED TO THIS PURPOSE: 

     " THE SISSETON AND WAHPETON BANDS OF DAKOTA OR SIOUX INDIANS

  HEREBY CEDE, SELL, RELINQUISH, AND CONVEY TO THE UNITED STATES

  ALL THEIR CLAIM, RIGHT, TITLE, AND INTEREST IN AND TO ALL THE

  UNALLOTTED LANDS WITHIN THE LIMITS OF THE RESERVATION SET APART

  TO SAID BANDS OF INDIANS AS AFORESAID REMAINING AFTER THE

  ALLOTMENTS AND ADDITIONAL ALLOTMENTS PROVIDED FOR IN ARTICLE FOUR

  OF THIS AGREEMENT SHALL HAVE BEEN MADE."  /33/

THIS LANGUAGE IS VIRTUALLY INDISTINGUISHABLE FROM THAT USED IN THE
OTHER SUM-CERTAIN, CESSION AGREEMENTS RATIFIED BY CONGRESS IN THE SAME
1891 ACT.  SEE NN. 21 AND 22, SUPRA.  THAT THE LANDS CEDED IN THE OTHER
AGREEMENTS WERE RETURNED TO THE PUBLIC DOMAIN, STRIPPED OF RESERVATION
STATUS, CAN HARDLY BE QUESTIONED, AND EVERY PARTY HERE ACKNOWLEDGES AS
MUCH.  THE SPONSORS OF THE LEGISLATION STATED REPEATEDLY THAT THE
RATIFIED AGREEMENTS WOULD RETURN THE CEDED LANDS TO THE "PUBLIC
DOMAIN."  SEE SUPRA, AT 440 - 441.  CF. MATTZ V. ARNETT, 412 U.S., AT
504 N. 22. 

IT IS TRUE THAT THE SISSETON-WAHPETON AGREEMENT WAS UNIQUE IN
PROVIDING FOR CESSION OF ALL, RATHER THAN SIMPLY A MAJOR PORTION OF,
THE AFFECTED TRIBE'S UNALLOTTED LANDS.  BUT, AS THE HISTORICAL
CIRCUMSTANCES MAKE CLEAR, THIS WAS NOT BECAUSE THE TRIBE WISHED TO
RETAIN ITS FORMER RESERVATION, UNDIMINISHED, BUT RATHER BECAUSE THE
TRIBE AND THE GOVERNMENT WERE SATISFIED THAT RETENTION OF ALLOTMENTS
WOULD PROVIDE AN ADEQUATE FULCRUM FOR TRIBAL AFFAIRS.  IN SUCH A
SITUATION, EXCLUSIVE TRIBAL AND FEDERAL JURISDICTION IS LIMITED TO THE
RETAINED ALLOTMENTS.  18 U.S.C. 1151 (C).  SEE UNITED STATES V.
PELICAN, 232 U.S. 442.  WITH THE BENEFIT OF HINDSIGHT, IT MAY BE ARGUED
THAT THE TRIBE AND THE GOVERNMENT WOULD HAVE BEEN BETTER ADVISED TO
HAVE CARVED OUT A DIMINISHED RESERVATION, INSTEAD OF OR IN ADDITION TO
THE RETAINED ALLOTMENTS.  BUT WE CANNOT REWRITE THE 1889 AGREEMENT AND
THE 1891 STATUTE.  FOR THE COURTS TO REINSTATE THE ENTIRE RESERVATION,
ON THE THEORY THAT RETENTION OF MERE ALLOTMENTS WAS ILL-ADVISED, WOULD
CARRY US WELL BEYOND THE RULE BY WHICH LEGAL AMBIGUITIES ARE RESOLVED
TO THE BENEFIT OF THE INDIANS.  WE GIVE THIS RULE THE BROADEST POSSIBLE
SCOPE, BUT IT REMAINS AT BASE A CANON FOR CONSTRUING THE COMPLEX
TREATIES, STATUTES, AND CONTRACTS WHICH DEFINE THE STATUS OF INDIAN
TRIBES.  A CANON OF CONSTRUCTION IS NOT A LICENSE TO DISREGARD CLEAR
EXPRESSIONS OF TRIBAL AND CONGRESSIONAL INTENT. 

THE COURT OF APPEALS THOUGHT THAT A FINDING OF TERMINATION HERE
WOULD BE INCONSISTENT WITH MATTZ AND SEYMOUR.  THIS IS NOT SO.  WE
ADHERE WITHOUT QUALIFICATION TO BOTH THE HOLDINGS AND THE REASONING OF
THOSE DECISIONS.  BUT THE GROSS DIFFERENCES BETWEEN THE FACTS OF THOSE
CASES AND THE FACTS HERE CANNOT BE IGNORED. 

IN MATTZ, THE COURT HELD THAT AN 1892 ACT OF CONGRESS /34/ DID NOT
TERMINATE THE KLAMATH RIVER INDIAN RESERVATION IN NORTHERN CALIFORNIA. 
THAT ACT DECLARED THE RESERVATION LANDS "SUBJECT TO SETTLEMENT, ENTRY,
AND PURCHASE" UNDER THE HOMESTEAD LAWS OF THE UNITED STATES, EMPOWERED
THE SECRETARY OF THE INTERIOR TO ALLOT TRACTS TO TRIBAL MEMBERS, AND
PROVIDED THAT ANY PROCEEDS OF LAND SALES TO SETTLERS SHOULD BE PLACED
IN A FUND FOR THE TRIBE'S BENEFIT.  THE 1892 STATUTE COULD BE
CONSIDERED A TERMINATION PROVISION ONLY IF CONTINUED RESERVATION STATUS
WERE INCONSISTENT WITH THE MERE OPENING OF LANDS TO SETTLEMENT, AND
SUCH IS NOT THE CASE.  SEE 18 U.S.C. 1151 (A).  BUT THE 1891 ACT BEFORE
US IS A VERY DIFFERENT INSTRUMENT.  IT IS NOT A UNILATERAL ACTION BY
CONGRESS BUT THE RATIFICATION OF A PREVIOUSLY NEGOTIATED AGREEMENT, TO
WHICH A TRIBAL MAJORITY CONSENTED.  THE 1891 ACT DOES NOT MERELY OPEN
LANDS TO SETTLEMENT; IT ALSO APPROPRIATES AND VESTS IN THE TRIBE A SUM
CERTAIN--$2.50 PER ACRE--IN PAYMENT FOR THE EXPRESS CESSION AND
RELINQUISHMENT OF "ALL" OF THE TRIBE'S "CLAIM, RIGHT, TITLE AND
INTEREST" IN THE UNALLOTTED LANDS.  THE STATUTE IN MATTZ BY CONTRAST,
BENEFITED THE TRIBE ONLY INDIRECTLY, BY ESTABLISHING A FUND DEPENDENT
ON UNCERTAIN FUTURE SALES OF ITS LAND TO SETTLERS.  SEE ALSO ASH SHEEP
CO. V. UNITED STATES, 252 U.S. 159, 164 - 166.  FURTHERMORE, THE
CIRCUMSTANCES SURROUNDING CONGRESSIONAL ACTION IN MATTZ MILITATED
PERSUASIVELY AGAINST A FINDING OF TERMINATION.  THAT ACTION REPRESENTED
A CLEAR RETREAT FROM PREVIOUS CONGRESSIONAL ATTEMPTS TO VACATE THE
KLAMATH RIVER RESERVATION IN EXPRESS TERMS; AND THE DEPARTMENT OF THE
INTERIOR HAD CONSISTENTLY REGARDED THE KLAMATH RIVER RESERVATION AS A
CONTINUING ONE, DESPITE THE 1892 LEGISLATION.  MATTZ V. ARNETT, SUPRA,
AT 503 - 505.  IN THE PRESENT CASE, BY CONTRAST, THE SURROUNDING
CIRCUMSTANCES ARE FULLY CONSISTENT WITH AN INTENT TO TERMINATE THE
RESERVATION, AND INCONSISTENT WITH ANY OTHER PURPOSE. 

IN SEYMOUR, THE COURT HELD THAT A 1906 ACT OF CONGRESS /35/ DID NOT
TERMINATE THE SOUTHERN PORTION OF THE COLVILLE INDIAN RESERVATION IN
WASHINGTON.  LIKE THAT IN QUESTION IN MATTZ, THIS ACT WAS UNILATERAL IN
CHARACTER; LIKE THAT IN QUESTION IN MATTZ, IT MERELY OPENED RESERVATION
LAND TO SETTLEMENT AND PROVIDED THAT THE UNCERTAIN FUTURE PROCEEDS OF
SETTLER PURCHASES SHOULD BE APPLIED TO THE INDIANS'  BENEFIT.  THE
SEYMOUR COURT WAS NOT CONFRONTED WITH A STRAIGHTFORWARD AGREEMENT
CEDING LANDS TO THE GOVERNMENT FOR A SUM CERTAIN.  IN SEYMOUR, THE
COURT SHARPLY CONTRASTED THE 1906 ACT, WHICH PROVIDED ONLY FOR NON
INDIAN SETTLEMENT, WITH AN 1892 ACT, WHICH PLAINLY "'VACATED'"  AND
RESTORED "'TO THE PUBLIC DOMAIN'" THE NORTHERN PORTION OF THE COLVILLE
RESERVATION.  SEYMOUR V. SUPERINTENDENT, 368 U.S., AT 355.  THE 1891
ACT BEFORE US HERE IS ANALOGOUS TO THAT 1892 STATUTE. 

THUS, IN FINDING A TERMINATION OF THE LAKE TRAVERSE RESERVATION, WE
ARE NOT DEPARTING FROM, BUT FOLLOWING AND REAFFIRMING, THE GUIDING
PRINCIPLES OF MATTZ AND SEYMOUR. 

UNTIL THE COURT OF APPEALS ALTERED THE STATUS QUO, SOUTH DAKOTA HAD
EXERCISED JURISDICTION OVER THE UNALLOTTED LANDS OF THE FORMER
RESERVATION FOR SOME 80 YEARS.  COUNSEL FOR THE TRIBAL MEMBERS STATED
AT ORAL ARGUMENT THAT MANY OF THE INDIANS HAVE RESENTED STATE AUTHORITY
AND SUFFERED UNDER IT.  COUNSEL FOR THE STATE DENIED THIS AND ARGUED
THAT AN END TO STATE JURISDICITON WOULD BE CALAMITOUS FOR ALL THE
RESIDENTS OF THE AREA, INDIAN AND NON-INDIAN ALIKE.  THESE COMPETING
PLEAS ARE NOT FOR US TO ADJUDGE, FOR OUR TASK HERE IS A NARROW ONE.  IN
THE 1889 AGREEMENT AND THE 1891 ACT RATIFYING IT, CONGRESS AND THE
TRIBE SPOKE CLEARLY.  SOME MIGHT WISH THEY HAD SPOKEN DIFFERENTLY, BUT
WE CANNOT REMAKE HISTORY. 

THE JUDGMENT IN NO. 73 - 1148, IS AFFIRMED, AND THAT IN NO. 73 -
1500 IS REVERSED. 

                           IT IS SO ORDERED. 

/1/ " EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 1154 AND 1156 OF THIS
TITLE, THE TERM ' INDIAN COUNTRY,' AS USED IN THIS CHAPTER, MEANS (A)
ALL LAND WITHIN THE LIMITS OF ANY INDIAN RESERVATION UNDER THE
JURISDICTION OF THE UNITED STATES GOVERNMENT, NOTWITHSTANDING THE
ISSUANCE OF ANY PATENT, AND, INCLUDING RIGHTS-OF-WAY RUNNING THROUGH
THE RESERVATION, (B) ALL DEPENDENT INDIAN COMMUNITIES WITHIN THE
BORDERS OF THE UNITED STATES WHETHER WITHIN THE ORIGINAL OR
SUBSEQUENTLY ACQUIRED TERRITORY THEREOF, AND WHETHER WITHIN OR WITHOUT
THE LIMITS OF A STATE, AND (C) ALL INDIAN ALLOTMENTS, THE INDIAN TITLES
TO WHICH HAVE NOT BEEN EXTINGUISHED, INCLUDING RIGHTS-OF-WAY RUNNING
THROUGH THE SAME." 

/2/ IF THE LANDS IN QUESTION ARE WITHIN A CONTINUING "RESERVATION,"
JURISDICTION IS IN THE TRIBE AND THE FEDERAL GOVERNMENT
"NOTHWITHSTANDING THE ISSUANCE OF ANY PATENT, (SUCH JURISDICTION)
INCLUDING RIGHTS-OF-WAY RUNNING THROUGH THE RESERVATION."  18 U.S.C.
1151 (A).  ON THE OTHER HAND, IF THE LANDS ARE NOT WITHIN A CONTINUING
RESERVATION, JURISDICTION IS IN THE STATE, EXCEPT FOR THOSE LAND
PARCELS WHICH ARE " INDIAN ALLOTMENTS, THE INDIAN TITLES TO WHICH HAVE
NOT BEEN EXTINGUISHED, INCLUDING RIGHTS-OF-WAY RUNNING THROUGH THE
SAME."  18 U.S.C. 1151 (C).  EVEN WITHIN " INDIAN COUNTRY," A STATE MAY
HAVE JURISDICTION OVER SOME PERSONS OR TYPES OF CONDUCT, BUT THIS
JURISDICTION IS QUITE LIMITED.  SEE, E.G., MC CLANAHAN V. ARIZONA STATE
TAX COMM'N, 411 U.S. 164; WILLIAMS V. LEE, 358 U.S. 217; WORCESTER V.
GEORGIA, 6 PET. 515.  WHILE 1151 IS CONCERNED, ON ITS FACE, ONLY WITH
CRIMINAL JURISDICTION, THE COURT HAS RECOGNIZED THAT IT GENERALLY
APPLIES AS WELL TO QUESTIONS OF CIVIL JURISDICTION.  MC CLANAHAN V.
ARIZONA STATE TAX COMM'N, SUPRA, AT 177 - 178, N. 17; KENNERLY V.
DISTRICT COURT OF MONTANA, 400 U.S. 423, 424 N. 1; WILLIAMS V. LEE, 358
U.S., AT 220 - 222, NN. 5, 6, AND 10. 

/3/ THE CIRCUIT COURT'S OPINION OF SEPTEMBER 26, 1972, IS
UNPUBLISHED.  IT WAS STIPULATED THAT SOME 50% OF THE MOTHER'S ALLEGEDLY
WRONGFUL ACTS AND OMISSIONS OCCURRED ON NON-INDIAN PATENTED LAND, THE
REMAINDER OCCURRING ON INDIAN ALLOTMENTS OVER WHICH THE STATE DOES NOT
HAVE JURISDICTION.  THE PARTIES HERE HAVE ASSUMED THAT THE STATE HAD
JURISDICTION TO EXERCISE CUSTODY OVER THE PETITIONER'S CHILDREN IF THE
NON-INDIAN, PATENTED LANDS WERE NOT " INDIAN COUNTRY" UNDER 18 U.S.C.
1151 (A).  WE HAVE MADE THE SAME ASSUMPTION.  WE NOTE, HOWEVER, THAT
1151 (C) CONTEMPLATES THAT ISOLATED TRACTS OF " INDIAN COUNTRY"  MAY BE
SCATTERED CHECKERBOARD FASHION OVER A TERRITORY OTHERWISE UNDER STATE
JURISDICTION.  IN SUCH A SITUATION, THERE WILL OBVIOUSLY ARISE MANY
PRACTICAL AND LEGAL CONFLICTS BETWEEN STATE AND FEDERAL JURISDICTION
WITH REGARD TO CONDUCT AND PARTIES HAVING MOBILITY OVER THE
CHECKERBOARD TERRITORY.  HOW THESE CONFLICTS SHOULD BE RESOLVED IS NOT
BEFORE US. 

/4/ 87 S.D. --, 211 N.W. 2D 843. 

/5/ ID., AT --, 211 N.W. 2D, AT 845. 

/6/ 489 F. 2D 99. 

/7/ TREATY OF FEBRUARY 19, 1867, 15 STAT. 505.  THE TREATY IS
REPRINTED AS APPENDIX A TO THIS OPINION. 

/8/ ON APRIL 22, 188, A BANKER FROM MILBANK, SOUTH DAKOTA, D.W.
DIGGS, WROTE THE SECRETARY OF THE INTERIOR: 

"(THE LAKE TRAVERSE RESERVATION) IS A GREAT DETRIMENT TO OUR
INTERESTS, AS IT BLOCKS THE PROGRESS OF TWO OR THREE LINES OF RAILROAD
THAT WE ARE VERY ANXIOUS TO SEE COMPLETED. 

" WE NEED THESE ROADS BADLY, AND THE OPENING OF THE RESERVATION
WOULD GIVE NEW IMPETUS TO IMMIGRATION WHICH HAS BEEN ATTRACTED BY
GOVERNMENT LANDS FURTHER WEST. 

" ANY INFORMATION THAT WILL ENABLE THE CITIZENS OF THIS SECTION TO
RENDER ANY SERVICE THAT MAY BE NEEDED IN HASTENING THE OPENING WILL BE
APPRECIATED."  NATIONAL ARCHIVES RECORDS OF THE BUREAU OF INDIAN
AFFAIRS, RECORD GROUP NO. 75, LETTERS RECEIVED; SPECIAL CASE 147
(SISSETON), LETTER NO. 26163 - 1889, ENCLS.  2, 3, AND 5. 

IN AN ENCLUSED "RESOLUTION," DIGGS AND SIX OTHER LOCAL, NON-INDIAN
CITIZENS FROM THE COUNTIES ADJACENT TO THE RESERVATION PROMISED TO USE
THEIR INFLUENCE TO SECURE TO THE TRIBE FURTHER CONGRESSIONAL
APPROPRIATIONS, MENTIONED IN THE 1867 TREATY, ART. VI, AS COMPENSATION
FOR THE TRIBE'S LOYALTY DURING THE 1862 SIOUX UPRISING.  THE EVIDENT
GOAL OF THE EFFORT WAS TO ASSURE TRIBAL CONSENT TO AN AGREEMENT OPENING
THE RESERVATION TO SETTLEMENT AND DEVELOPMENT. 

ON DECEMBER 13, 1890, WHILE THE CESSION AGREEMENT OF 1889 WAS STILL
BEFORE CONGRESS, THE GOVERNOR OF SOUTH DAKOTA WROTE THE SECRETARY OF
THE INTERIOR THAT THE TRIBE WAS IN A " DESTITUTE CONDITION" AND URGED
THAT THE GOVERNMENT "AT ONCE TAKE STEPS TO RELIEVE THE NECESSITIES (OF)
THIS LONG SUFFERING PEOPLE ... SLOWLY SUFFERING DEATH FROM PRIVATION
AND STARVATION."  NATION ARCHIVES ARCHIVES RECORDS OF THE BUREAU OF
INDIAN AFFAIRS, RECORD GROUP NO. 75, LETTERS RECEIVED:  SPECIAL CASE
147 (SESSETON), LETTER NO. 39462 - 1890. 

/9/ ACT OF MAR. 3, 1871, C. 120, 1, 16 STAT. 566.  BUT THAT ACT DID
NOT PURPORT TO INVALIDATE OR INPAIR ANY PRIOR TREATY OBLIGATION
INCURRED BY THE UNITED STATES TOWARD AN INDIAN TRIBE.  25 U.S.C. 71. 

/10/ ACT OF FEB. 8, 1887, C. 119, 24 STAT. 388. 

/11/ SEE N. 8, SUPRA. 

/12/ THE MINNEAPOLIS TRIBUNE, MAY 22, 1889, P. 1 (REPRODUCED IN 1
APP. FOR RESPONDNET IN NO. 73 - 1148, P. 19). 

/13/ NATIONAL ARCHIVES RECORDS OF THE BUREAU OF INDIAN AFFAIRS,
RECORD GROUP NO. 75, LAND DIVISION, LETTER BOOK 188, AUG. 13, 1889. 

/14/ CHARLES A. MAXWELL, CHIEF OF THE LAND DIVISION OF THE
DEPARTMENT OF THE INTERIOR, ELIPHALET WHITTLESEY, SECRETARY OF THE
BOARD OF INDIAN COMMISSIONERS, AND D.W. DIGGS. 

/15/ SEE THE REPORT OF COUNCILS WITH SISSETON AND WAHPETON INDIANS
IN S. EXEC. DOC. NO. 66, 51ST CONG., 1ST SESS., 15 - 29 (1890)
(COUNCILS REPORT). 

/16/ THE GOVERNMENT NEGOTIATORS REPORTED TO THE COMMISSIONER OF
INDIAN AFFAIRS THAT THEY HAD "ADVISED THEM (THE TRIBE) THAT WE PROPOSED
TO GIVE $2.50 PER ACRE FOR EACH AND EVERY ACRE OF THE LANDS WHICH THEY
DESIRED TO DISPOSE OF ...."  LETTER TO COMMISSIONER, DEC. 1889, S.
EXEC. DOC. NO. 66, SUPRA, AT 7.  THE REPORT CONTINUED: 

" WE FIRST PROPOSED TO RESERVE ONE SECTION IN EACH TOWNSHIP FOR
SCHOOL PURPOSES, AND CERTAIN OTHER PORTIONS OF THE RESERVATION FOR
FUTURE ALLOTMENTS AND THE TRACTS NOW OCCUPIED BY THE GOVERNMENT FOR
AGENCY AND SCHOOL PURPOSES, AND ALSO SUCH TRACTS AS WERE OCCUPIED AND
USED FOR EDUCATIONAL AND MISSIONARY PURPOSES AMONG THE INDIANS, BUT
UPON INFORMAL INQUIRY AMONG THE INDIANS IT WAS LEARNED THAT THIS PLAN
WOULD NOT MEET WITH THEIR APPROVAL.  THEY ARGUED TAHT AS THE MONEY,
INTEREST, AND PERHAPS SOME OF THE PRINCIPAL OF THE FUNDS ARISING FROM
THE SALE OF THE SURPLUS LANDS WERE TO BE USED FOR EDUCATIONAL AND
CIVILIZATION PURPOSES, IT WOULD NOT BE PROPER FOR THEM ALSO TO RESERVE
A LARGE QUANTITY OF LAND FOR EDUCATIONAL AND GOVERNMENT PURPOSES, AND
ADMITTING THE FORCE OF THE ARGUMENT WE DID NOT PRESS THE MATTER,
BELIEVING IT BETTER THAT THE GOVERNMENT SHOULD OWN THE LANDS UPON WHICH
THE AGENCY AND SCHOOL BUILDINGS ARE LOCATED, AND THAT MISSIONARY
SOCIETIES AND CHURCHES SHOULD HAVE THE PRIVILEGE OF PURCHASING THE LAND
NOW OCCUPIED BY THEM.  WE ALSO LEARNED THAT THE INDIANS PREFERRED TO
HAVE THE ALLOTMENTS EQUALIZED SO THAT EACH PERSON, INCLUDING MARRIED
WOMEN, WOULD HAVE 160 ACRES, THE PLAN OUTLINED IN YOUR ANNUAL REPORT,
AND SELL ALL THE SURPLUS LANDS REMAINING, AND HENCE THE PROVISIONS OF
ARTICLE FOUR."  IBID. 

THE SALE OF ALL UNALLOTTED LANDS WAS NOT AN IRRATIONAL CHOICE IN
LIGHT OF THE UNUSUALLY LARGE NUMBER OF ALLOTMENTS WHICH THE AGREEMENT
SPECIFIED.  PRESENT HARRISON LATER NOTED THIS IN SUBMITTING THE 1889
AGREEMENT OT THE CONGRESS: 

" THIS AGREEMENT INVOLVES A DEPARTURE FROM THE TERMS OF THE GENERAL
ALLOTMENT ACT IN AT LEAST ONE IMPORTANT PARTICULAR.  IT GIVES TO EACH
MEMBER OF THE TRIBE 160 ACRES OF LAND WITHOUT REGARD TO AGE OR SEX,
WHILE THE GENERAL LAW GIVES THIS ALLOTMENT ONLY TO HEADS OF FAMILIES." 
ID., AT 1. 

DURING THE NEGOTIATIONS, THE INTENT OF ALL PARTIES TO EFFECT A CLEAR
CONVEYANCE OF ALL UNALLOTTED LANDS WAS EVIDENT.  FOR INSTANCE, ON
DECEMBER 3, 1889, GABRIEL RENVILLE, A TRIBAL SPOKESMAN, STATED:

" I HAVE SPOKEN FOR ALL OF THE PEOPLE, AND IT IS THEIR WISH THAT I
SHOULD SAY THESE THINGS.  IN THE PAST THERE HAS BEEN LOTS OF LAND SOLD,
BUT WE HAVE NOT BEEN BENEFITED BY THE SALES.  IN 186( THEY PROMISED US
THEY WOULD HELP US, BUT THEY HAVE NOT HELPED US VERY MUCH FOR MANY
YEARS.  LET THEM FIRST SETTLE OUR CLAIM (LOYAL SCOUT CLAIM) AND THEN WE
WILL TALK ABOUT OUR SURPLUS LANDS.  WE ARE NOW CITIZENS AND CAN TALK
WITH YOU AS SUCH, AND DO NOT CARE TO TALK ABOUT SHOE PACS, ETC., BUT
CASH.  WE CAN BUY FOR OURSELVES WHAT WE NEED IF PAYMENT IS MADE IN
CASH, AND THEN WE DO NOT CARE TO HAVE AN AGENCY HERE AFTER THE SURPLUS
LANDS HAVE BEEN SOLD.  THE PEOPLE HAVE ASKED ME TO SAY THIS AS THEIR
WISH."  COUNCILS REPORT, SUPRA, AT 19 - 20.     MICHAEL RENVILLE,
ANOTHER TRIBAL SPOKESMAN, STATED: 

" WE HAVE ALWAYS SAID THAT WHEN THE SALE OF SURPLUS LANDS WAS
CONSIDERED WE WOULD ASK THAT 160 ACRES BE GIVEN TO EACH MEMBER OF THE
TRIBE .... WE SAID IN COUNCIL THAT WE WOULD NOT SELL SURPLUS LANDS
UNTIL BACK ANNUITIES (FOR THE LOYAL SCOUT CLAIM) WERE PAID, BUT YOU SAY
THAT IF THE LANDS ARE NOW SOLD THE BACK ANNUITIES WOULD BE PAID AT THE
SAME TIME.  THIS PLEASES US."  ID., AT 21. 

IN EXPLAINING A PROPOSED DRAFT OF THE AFREEMENT TO THE TRIBAL
MEMBERS, NEGOTIATOR WHITTLESEY NOTED:     " AFTER YOU HAVE RECEIVED
YOUR BACK ANNUITIES, EACH RECIEVE 160 ACRES OF LAND; YOU WILL SELL ALL
THAT IS LEFT .... THERE ARE 918,000 ACRES IN THE RESERVATION, ABOUT
127,000 ACRES NOW ALLOTTED; IT WILL TAKE, WE THINK, ABOUT 130,000 TO
COMPLETE ALLOTMENTS; THAT WILL LEAVE ABOUT 660,000 ACRES TO SELL." 
ID., AT 22. 

THE INDIANS WERE AWARE THAT THEY WERE TAKING A NOT INSIGNIFICANT
STEP IN SELLING THE RESERVATION LANDS.  GABRIEL RENVILLE STATED:  "
THIS LITTLE RESERVATION IS OURS, AND ALL WE HAVE LEFT.  THERE IS
NOTHING IN OUR TREATY THAT SAYS THAT WE MUST SELL.  IT WAS GIVEN US AS
A PERMANENT HOME, BUT NOW WE HAVE DECIDED TO SE.. ...."  ID., AT 25. 

IN EXPLAINING THE FINAL AGREEMENT TO THE SECRETARY OF THE INTERIOR,
THE COMMISSIONER OF INDIAN AFFAIRS NOTED: 

" THE RESERVATION CONTAINS 918,780 ACRES AND THERE HAVE BEEN 127,887
ACRES ALLOTTED, ABUT ALL THE INDIANS WHO ARE ENTITLED HAVE NOT YET
RECEIVED THEIR ALLOTMENTS.  IT IS ALMOST IMPOSSIBLE TO GIVE THE
ACCURATE NUMBER OF INDIANS ENTITLED TO ALLOTMENTS, FOR SINCE THE
ALLOTMENTS WERE COMPLETED NUMEROUS APPLICATIONS HAVE BEEN MADE FOR
LAND, AND AS BEFORE STATED, IT IS KNOWN THAT ALL WHO ARE ENTITLED HAVE
NOT RECEIVED ALLOTMENTS.  I THINK, TAKING THESE FACTS INTO
CONSIDERATION, THAT THESE PEOPLE NUMBER BETWEEN 1,500 AND 1,6000 SOULS,
AND TAKING THE LATTER AS A BASIS OF CALCULATION, IT WILL REQUIRE ABOUT
128,000 ACRES TO MAKE ALLOTMENTS AND ADDITIONAL ALLOTMENTS PROVIDED
FOR, MAKING A TOTAL OF 256,000 ACRES, LEAVING 662,780 ACRES TO WHICH
THE INDIAN TITLE IS EXTINGUISHED BY THE TERMS OF THE AGREEMENT." 
LETTER TO THE SECRETARY, S. EXEC. DOC. NO. 66, SUPRA, AT 4 - 5. 

/17/ THE AGREEMENT IS REPRINTED AS APPENDIX B TO THIS OPINION. 

/18/ S. EXEC. DOC. NO. 66, SUPRA, AT 3 

/19/ FOR INSTANCE, A REPORT OF THE SENATE COMMITTEE ON INDIAN
AFFAIRS SUMMARIZED THE AGREEMENT AS FOLLOWS: 

" BY THE TERMS OF THIS AGREEMENT THE SAID BANDS OF INDIANS AGREED TO
CEDE, SELL, RELINQUISH, AND CONVEY TO THE UNITED STATES THE UNALLOTTED
LANDS WITHIN THE LAKE TRAVERSE RESERVATION." 

" AS TO THE EQUALIZATION OF ALLOTMENTS ON THE BASIS OF 160 ACRES,
PROVIDED IN THE BILL, WHEN VIEWED IN THE LIGHT OF THE FACT THAT THE
ADDITIONAL ALLOTMENTS ARE IN LIEU OF ANY RESIDUE WHICH, UNDER THEIR
TITLE, THESE INDIANS COULD HAVE RESERVED FOR THE FUTURE BENEFIT OF
THEIR FAMILIES, AND THE FURTHER FACT THAT THEY ARE SOON TO ASSUME THE
RESPONSIBILITIES OF CITIZENSHIP, WITH ALL IT IMPLIES RESPECTING THE
MORAL AND AMTERIAL WELFARE OF THEIR FAMILIES, WE THINK THAT THE
DEPARTURE FROM THE GENERAL ALLOTMENT ACT OF 1887 IN THE CASE OF THESE
INDIANS IS JUST AND PROPER AND SHOULD BE ALLOWED.... 

" THIS RESERVATION CONTAINS 918,780 ACRES OF AGRICULTURAL LANDS,
127,887 OF WHICH HAVE BEEN ALLOTTED TO THE SISSETON AND WAHPETON
INDIANS UNDER THE ACT OF CONGRES SAPPROVED FEBRUARY 8, 1887 (24 STATS.,
388).  THE ADDITIONAL ALLOTMENTS, AS PROVIDED IN ARTICLE 4 OF THE
AGREEMENT, WILL REQUIRE 112,113 ACRES, MAKING A TOTAL OF 240,002 ACRES,
WHICH LEAVES A SURPLUS, INCLUDING THE LANDS OCCUPIED BY THE AGENCY AND
MISSIONARY SOCIETIES, OF 678,77, ACRES, THE INDIAN TITLE TO WHICH WILL
BE EXTINGUISHED BY THE TERMS OF THE AGREEMENT.  THE COST OF THE
PURCHASE, AT $2.50 PER ACRE, WILL AMOUNT TO $1,696,945, WHICH IS TO BE
A TRUST FUND HELD BY THE UNITED STATES FOR THE BENEFIT OF THESE
INDIANS.  THE APPROPRIATION NAMED IN THE BILL IS ESTIMATED TO COVER THE
PURCHASE, AND PAY THE BACK ANNUITIES."  S. REP. NO. 661, 51ST CONG.,
1ST SESS., 1, 3 - 4 (1890).  ALMOST IDENTICAL LANGUAGE APPEARS IN H.R.
REP. NO. 1356, 51ST CONG., 1ST SESS., 1, 8 - 9 (1890). 

/20/ ACT OF MAR. 3, 1891, 30, 26 STAT. 1039.  SEE 22 CONG. REC. 2809
- 2810, 3784 (1891) (REMARKS OF CONGS.  HOLMANN AND PERKINS); ID., AT
3453, 3457 - 3458 (1891) (REMARKS OF SENS.  PETTIGREW AND DAWES). 

/21/ ACT OF MAR. 3, 18918 26 STAT. 989.  THE OTHER AGREEMENTS
RATIFIED WERE NEGOTIATED WITH THE FOLLOWING TRIBES:  THE CITIZEN BAND
OF POTTAWATOMIE INIDANS, 8, 26 STAT. 1016; THE ABSENTEE SHAWNEE
INDIANS, 9, 26 STAT. 1018; THE CHEYENNE AND ARAPAHOE TRIBES, 13, 26
STAT. 1022; THE COUER D' ALENE INDIANS (I), 19, 26 STAT. 1026; THE
COEUR D' ALENE INDIANS (II), 20, 26 STAT. 1029:  THE GROS VENTRES,
MANDANS, AND ARICKAREES, 23, 26 STAT. 1032; THE CROW INDIANS, 31, 26
STAT. 1039. 

/22/ THE SISSETON-WAHPETON AGREEMENT PROVIDED THAT THE TRIBE AGREED
TO "CEDE, SELL, RELINQUISH, AND CONVEY TO THE UNITED STATES ALL THEIR
CLAIM, RIGHT, TITLE, AND INTEREST IN AND TO ALL THE UNALLOTTED LANDS
WITHIN THE LIMITS OF THE RESERVATION...."  26 STAT. 1036.  THE LANGUAGE
IN THE OTHER AGREEMENTS RATIFIED AT THE SAME TIME IS COMPARABLE: 

"--CEDE, RELINQUISH, AND FOREVER AND ABSOLUTELY SURRENDER TO THE
UNITED STATES ALL THEIR CLAIM, TITLE AND INTEREST OF EVERY KIND AND
CHARACTER IN AND TO THE FOLLOWING DESCRIBED TRACT OF COUNTRY...."  26
STAT. 1016 (CITIZEN BAND OF POTAWATOMIE INDIANS). 

"--CEDE, RELINQUISH AND SURRENDER, FOREVER AND ABSOLUTELY, TO THE
UNITED STATES, ALL THEIR CLAIM, TITLE AND INTEREST OF EVERY KIND AND
CHARACTER IN AND TO THE FOLLOWING DESCRIBED TRACT OF COUNTRY...."  26
STAT. 1019 (ABSENTEE SHAWNEE INDIANS). 

"--CEDE, CONVEY, TRANSFER, RELINQUISH, AND SURRENDER FOREVER AND
ABSOLUTELY, WITHOUT ANY RESERVATION WHATEVER, EXPRESS OR IMPLIED, ALL
THEIR CLAIM, TITLE, AND INTEREST OF EVERY KIND AND CHARACTER, IN AND TO
THE LANDS EMBRACED IN THE FOLLOWING DESCRIBED TRACT OF COUNTRY...."  26
STAT. 1022 (CHEYENNE AND ARAPAHOE TRIBES). 

"--CEDE, GRANT, RELINQUISH, AND QUITCLAIM TO THE UNITED STATES ALL
RIGHT, TITLE, AND CLAIM WHICH THEY NOW HAVE, OR EVER HAD, TO ALL LANDS
IN SAID TERRITORIES AND ELSEWHERE, EXCEPT THE PORTION OF LAND WITHIN
THE BOUNDARIES OF THEIR PRESENT RESERVATION IN THE TERRITORY OF IDAHO
...."  26 STAT. 1027 (COEUR D' ALENE INDIANS (I)). 

"--CEDE, GRANT, RELINQUISH, AND QUITCLAIM TO THE UNITED STATES, ALL
THE RIGHT, TITLE, AND CLAIM WHICH THEY NOW HAVE, OR EVER HAD, TO THE
FOLLOWING-DESCRIBED PORTION OF THEIR RESERVATION ...."  26 STAT. 1030
(COEUR D' ALENE INDIANS (II)). 

"--CEDE, SELL, AND RELINQUISH TO THE UNITED STATES ALL THEIR RIGHT,
TITLE, AND INTEREST IN AND TO ALL THAT PORTION OF THE FORT BERTHOLD
RESERVATION (AS HEREIN DESCRIBED)...."  26 STAT. 1032 (GROS VENTRES,
MANDANS, AND ARICKAREES). 

"--AGREE TO DISPOSE OF AND SELL TO THE GOVERNMENT OF THE UNITED
STATES, FOR CERTAIN CONSIDERATIONS HEREINAFTER MENTIONED, ALL THAT
PORTION OF THE CROW INDIAN RESERVATION (AS HEREIN DESCRIBED) ...."  26
STAT. 1040 (CROW INDIANS). 

/23/ REMARKS OF CONG. PERKINS, 22 CONG. REC. 3784 (1891). 

/24/ REMARKS OF SEN. MORGAN, ID., AT 3455. 

/25/ REMARKS OF SEN. DAWES, ID., AT 3879. 

/26/ PROCLAMATION OF THE PRESIDENT, APR. 11, 1892, 27 STAT. 1017. 

/27/ COMPARE THE MAPS CONTAINED IN THE ANNUAL REPORTS OF THE
COMMISSIONER OF INDIAN AFFAIRS FOR 1892, 1909, AND 1918, WITH THE MAP
OF INDIAN LANDS AND RELATED FACILITIES AS OF 1971, COMPILED BY BUREAU
OF INDIAN AFFAIRS IN COOPERATION WITH THE GEOLOGICAL SURVEY, U.S. DEPT.
OF INTERIOR.  THE PARTIES HERE HAVE CITED US TO NUMEROUS INTERIOR
DEPARTMENT MEMORANDA AND LETTERS, ISSUED OVER THE PAST 80-ODD YEARS,
WHICH REFER TO THE AREA EITHER AS A "RESERVATION" OR A "FORMER
RESERVATION."  NO CONSISTENT PATTERN EMERGES.  THE AUTHORS OF THESE
DOCUMENTS APPEAR TO HAVE PUT NO PARTICULAR SIGNIFICANCE ON THEIR CHOICE
OF A LABEL. 

/28/ SEE, E.G., 39 STAT. 988 AND 42 STAT. 576. 

/29/ SEE EXECUTIVE ORDERS 1916 (1914), 3994 (1924), 7984 (1938). 
SEE ALSO THE DELEGATED ORDERS OF THE SECRETARY OF THE INTERIOR, AT 28
FED. REG. 11630 (1963), 33 FED. REG. 15067 (1968), AND 38 FED. REG.
34463 (1973).  THE DELEGATION OF AUTHORITY WAS BY EXECUTIVE ORDER 10250
(JUNE 5, 1951), 3 CFR 755 - 757 (1949 - 1953 COMP.).  CONGRESS HAS
SEVER TIMES AUTHORIZED EXTENSIONS OF TRUST RELATIONS WITH RESPECT TO
INDIAN TRIBES, E.G., ACTS OF JUNE 21, 1906, 34 STAT. 326, AND MAR. 2,
1917, 39 STAT. 976. 

/30/ ART. I, CONSTITUTION AND BYLAWS OF THE SISSETON-WAHPETON SIOUX
TRIBE, APPROVED BY THE COMMISSIONER OF INDIAN AFFAIRS, OCT. 16, 1946. 

/31/ ART. I, REVISED CONSTITUTION AND BYLAWS OF THE SISSETON
WAHPETON SIOUX TRIBE, APPROVED BY THE COMMISSIONER OF INDIAN AFFAIRS,
AUG. 26, 1966. 

/32/ BOUNDARIES OF THE LAKE TRAVERSE INDIAN RESERVATION, FIELD
SOLICITOR'S OPINION, ABERDEEN OFFICE, BUREAU OF INDIAN AFFAIRS, AUG.
16, 1972. 

/33/ AGREEMENT OF 1889, ART. I, 26 STAT. 1036. 

COUNSEL FOR THE STATE HAS ARGUED THAT THE "SCHOOL LANDS" PROVISION
OF THE 1891 ACT, 30, 26 STAT. 1039, IS FURTHER EVIDENCE OF CONGRESS'
INTENT TO VEST JURISDICTION OVER UNALLOTTED LANDS IN THE STATE. 
COUNSEL FOR THE TRIBAL MEMBERS WOULD HAVE US DRAW A CONTRARY INFERENCE
FROM THE PROVISION.  THE PROVISION READS: 

" THAT THE LANDS BY SAID AGREEMENT CEDED, SOLD, RELINQUISHED, AND
CONVEYED TO THE UNITED STATES SHALL IMMEDIATELY, UPON THE PAYMENT TO
THE PARTIES ENTITLED THERETO OF THEIR SHARE OF THE FUNDS MADE
IMMEDIATELY AVAILABLE BY THIS ACT, AND UPON THE COMPLETION OF THE
ALLOTMENTS AS PROVIDED FOR IN SAID AGREEMENT, BE SUBJECT ONLY TO ENTRY
AND SETTLEMENT UNDER THE HOMESTEAD AND TOWNSITE LAWS OF THE UNITED
STATES, EXCEPTING THE SIXTEENTH AND THIRTY-SIXTH SECTIONS OF SAID
LANDS, WHICH SHALL BE RESERVED FOR COMMON SCHOOL PURPOSES, AND BE
SUBJECT TO THE LAWS OF THE STATE WHEREIN LOCATED ...."  (EMPHASIS
ADDED.)  COUNSEL DIFFER AS TO WHETHER THE EMPHASIZED PHRASE REFERS TO
THE "LANDS BY SAID AGREEMENT CEDED, SOLD, RELINQUISHED, AND CONVEYED TO
THE UNITED STATES," OR TO "THE SIXTEENTH AND THIRTY-SIXTH SECTIONS OF
SAID LANDS."  WE THINK THE DISAGREEMENT IRRELEVANT TO THE
JURISDICTIONAL ISSUE BEFORE US.  THE "SCHOOL PROVISION" WAS NOT PART OF
THE 1889 AGREEMENT, AND THERE IS NO INDICATION IN THE LEGISLATIVE
HISTORY THAT CONGRESS INTENDED THE PROVISION TO QUALIFY THE TERMS OF
THE CESSION OF UNALLOTTED LANDS TO THE GOVERNMENT.  IN OPENING PUBLIC
LANDS TO SETTLEMENT, IT WAS THE USUAL PRACTICE OF CONGRESS TO EXCEPT
THE 16TH AND 36TH SECTIONS FROM SETTLEMENT AND TO RESERVE THESE TO THE
STATE FOR COMMON SCHOOL PURPOSES.  INDEED, THE 1891 ACT CONTAINS AN
OMNIBUS "SCHOOL PROVISION," APPLICABLE TO ALL THE AGREEMENTS RATIFIED
THEREIN, WHICH REITERATES THIS PURPOSE.  28, 26 STAT. 1044.  EVEN IF WE
WERE TO ASSUME, WITH COUNSEL FOR THE TRIBAL MEMBERS, THAT THE "STATE
LAW"  PHRASE OF 30 REFERS ONLY TO SCHOOL LANDS, THE NATURAL INFERENCE
WOULD BE THAT STATE LAW IS TO GOVERN THE MANNER IN WHICH THE 16TH AND
36TH SECTIONS ARE TO BE EMPLOYED "FOR COMMON SCHOOL PURPOSES."  THIS
IMPLIES NOTHING ABOUT THE PRESENCE OR ABSENCE OF STATE CIVIL AND
CRIMINAL JURISDICTION OVER THE REMAINDER OF THE CEDED LANDS. 

/34/ ACT OF JUNE 17, 1892, 27 STAT. 52. 

/35/ 34 STAT. 80. 

        APPENDIS A TO OPINION OF THE COURT TREATY OF FEBRUARY 19,

           1867, 15 STAT. 505, AS AMENDED, 15 STAT. 509 

WHEREAS IT IS UNDERSTOOD THAT A PORTION OF THE SISSITON AND WARPETON
BANDS OF SANTEE SIOUX INDIANS, NUMBERING FROM TWELVE HUNDRED TO FIFTEEN
HUNDRED PERSONS, NOT ONLY PRESERVED THEIR OBLIGATIONS TO THE GOVERNMENT
OF THE UNITED STATES, DURING AND SINCE THE OUTBREAK OF THE
MEDEWAKANTONS AND OTHER BANDS OF SIOUX IN 1862, BUT FREELY PERILLED
THEIR LIVES DURING THAT OUTBREAK TO RESCUE THE RESIDENTS ON THE SIOUX
RESERVATION, AND TO OBTAIN POSSESSIO OF WHITE WOMEN AND CHILDREN MADE
CAPTIVES BY THE HOSTILE BANDS; AND THAT ANOTHER PORTION OF SAID
SISSITON AND WARPETON BANDS, NUMBERING FROM ONE THOUSAND TO TWELVE
HUNDRED PERSONS, WHO DID NOT PARTICIPATE IN THE MASSACRE OF THE WHITES
IN 1862, FEARING THE INDISCRIMINATE VENGEANCE OF THE WHITES, FLED TO
THE GREAT PRAIRIES OF THE NORTHWEST, WHERE THEY STILL REMAIN; AND 

WHEREAS CONGRESS, IN CONFISCATING THE SIOUX ANNUITIES AND
RESERVATIONS, MADE NO PROVISION FOR THE SUPPORT OF THESE, THE FRIENDLY
PORTION OF THE SISSITON AND WARPETON BANDS, AND IT IS BELIEVED (THAT)
THEY HAVE BEEN SUFFERED TO REMAIN HOMELESS WANDERERS, FREQUENTLY
SUBJECT TO INTENSE SUFFERING FROM WANT OF SUBSISTENCE AND CLOTHING TO
PROTECT THEM FROM THE RIGORS OF A HIGH NORTHERN LATITUDE, ALTHOUGH AT
ALL TIMES PROMPT IN RENDERING SERVICE WHEN CALLED UPON TO REPEL HOSTILE
RAIDS AND TO PUNISH DEPREDATIONS COMMITTED BY HOSTILE INDIANS UPON THE
PERSONS AND PROPERTY OF THE WHITES; AND 

WHEREAS THE SEVERAL SUBDIVISIONS OF THE FRIENDLY SISSITONS AND
WARPETON BANDS ASK, THROUGH THEIR REPRESENTATIVES, THAT THEIR ADHERENCE
TO THEIR FORMER OBLIGATIONS OF FRIEDNSHIP TO THE GOVERNMENT AND PEOPLE
OF THE UNITED STATES BE RECOGNIZED, AND THAT PROVISION BE MADE TO
ENABLE THEM TO RETURN TO AN AGRICULTURAL LIFE AND BE RELIEVED FROM A
DEPENDENCE UPON THE CHASE FOR A PRECARIOUS SUBSISTENCE:  THEREFORE, 

A TREATY HAS BEEN MADE AND ENTERED INTO, AT WASHINGTON CITY,
DISTRICT OF COLUMBIA, THIS NINETEENTH DAY OF FEBRUARY, A.D. 1867, BY
AND BETWEEN LEWIS V. BOGY, COMMISSIONER OF INDIAN AFFAIRS, AND WILLIAM
H. WATSON, COMMISSIONERS, ON THE PART OF THE UNITED STATES, AND THE
UNDERSIGNED CHIEFS AND HEADMEN OF THE SISSITON AND WARPETON BANDS OF
DOKOTA OR SIOUX INDIANS, AS FOLLOWS, TO WIT: 

ARTICLE I. THE SISSITON AND WARPETON BANDS OF DAKOTA SIOUX INDIANS,
REPRESENTED IN COUNCIL, WILL CONTINUE THEIR FRIENDLY RELATIONS WITH THE
GOVERNMENT AND PEOPLE OF THE UNITED STATES, AND BIND THEMSELVES
INDIVIDUALLY AND COLLECTIVELY TO USE THEIR INFLUENCE TO THE EXTENT OF
THEIR ABILITY TO PREVENT OTHER BANDS OF DOKOTA OR OTHER ADJACENT TRIBES
FROM MAKING HOSTILE DEMONSTRATIONS AGAINST THE GOVERNMENT OR PEOPLE OF
THE UNITED STATES.     ARTICLE II.  THE SAID BANDS HEREBY CEDE TO THE
UNITED STATES THE RIGHT TO CONSTRUCT WAGON ROADS, RAILROADS, MAIL
STATIONS, TELEGRAPH LINES, AND SUCH OTHER PUBLIC IMPROVMENTS AS THE
INTEREST OF THE GOVERNMENT MAY REQUIRE, OVER AND ACROSS THE LANDS
CLAIMED BY SAID BANDS (INCLUDING THEIR RESERVATION AS HEREINAFTER
DESIGNATED) OVER ANY ROUTE OR ROUTES THAT THAT MAY BE SELECTED BY
AUTHORITY OF THE GOVERNMENT, SAID LANDS SO CLAIMED BEING BOUNDED ON THE
SOUTH AND EAST BY THE TREATY LINE OF 1851 AND THE RED RIVER OF THE
NORTH TO THE MOUTH OF GOOSE RIVER, ON THE NORTH BY THE GOOSE RIVER AND
A LINE RUNNING FROM THE SOURCE THEREOF BY THE MOST WESTERLY POINT OF
DEVIL'S LAKE TO THE CHIEF'S BLUFF AT THE HEAD OF JAMES RIVER, AND ON
THE WEST BY THE JAMES RIVER TO THE MOUTH OF MOCASIN RIVER, AND THENCE
TO KAMPESKA LAKE. 

ARTICLE III.  FOR AND IN CONSIDERATION OF THE CESSION ABOVE
MENTIONED, AND IN CONSIDERATION OF THE FAITHFUL AND IMPORTANT SERVICES
SAID TO HAVE BEEN RENDERED BY THE FRIENDLY BANDS OF SISSITONS AND
WARPETONS SIOUX HERE REPRESENTED, AND ALSO IN CONSIDERATION OF THE
CONFISCATION OF ALL THEIR ANNUITIES, RESERVATIONS, ADN IMPROVEMENTS, IT
IS AGREED THAT THERE SHALL BE SET APART FOR THE MEMBERS OF SAID BANDS
WHO HAVE HERETOFORE SURRENDERED TO THE AUTHORITIES OF THE GOVERNMENT,
AND WERE NOT SENT TO THE CROW CREEK RESERVATION, AND FOR THE MEMBERS OF
SAID BANDS WHO WERE RELEASED FROM PRISON IN 1866, THE FOLLOWING
DESCRIBED LANDS AS A PERMANENT RESERVATION, VIZ.: 

BEGINNING AT THE HEAD OF LAKE TRAVERSE), AND THENCE ALONG THE TREATY
LINE OF THE TREATY OF 1851 TO KAMPESKA LAKE; THENCE IN A DIRECT LINE TO
REIPAN OR THE NORTHEAST POINT OF THE COTEAU DES PRAIRIES), AND THENCE
PASSING NORTH OF SKUNK LAKE, ON THE MOST DIRECT LINE TO THE FOOT OF
LAKE TRAVERSE, AND THENCE ALONG THE TREATY LINE OF 1851 TO THE PLACE OF
BEGINNING. 

ARTICLE IV.  IT IS FURTHER AGREED THAT A RESERVATION BE SET APART
FOR ALL OTHER MEMBERS OF SAID BANDS WHO WERE NOT SENT TO THE CROW CREEK
RESERVATION, AND ALSO FOR THE CUT HEAD BANDS OF YANKTONAIS SIOUX, A
RESERVATION BOUNDED AS FOLLOWS, VIZ.: 

BEGINNING AT THE MOST EASTERLY POINT OF DEVIS'S LAKE; THENCE ALONG
THE WATERS OF SAID LAKE TO THE MOST WESTERLY POINT OF THE SAME; THENCE
ON A DIRECT LINE TO THE NEAREST POINT ON THE CHEYENNE RIVER; THENCE
DOWN SAID RIVER TO A POINT OPPOSITE THE LOWER END OF ASPEN ISLAND, AND
THENCE ON A DIRECT LINE TO THE PLACE OF BEGINNING. 

ARTICLE V. THE SAID RESERVATIONS SHALL BE APPORTIONED IN TRACTS OF
(160) ON HUNDRED AND SIXTY ACRES TO EACH HEAD OF A FAMILY, OR SINGLE
PERSON OVER THE AGE OF (2 ) TWENTY-ONE YEARS, BELONGING TO SAID BANDS,
AND ENTITLED TO LOCATE THEREON, WHO MAY DESIRE TO LOCATE PERMANENTLY
AND CULTIVATE THE SOIL AS A MEANS OF SUBSISTENCE:  EACH (160) ONE
HUNDRED AND SIXTY ACRES SO ALLOTTED TO BE MADE TO CONFORM TO THE LEGAL
SUBDIVISIONS OF THE GOVERNMENT SURVEYS, WHEN SUCH SURVEYS SHALL HAVE
BEEN MADE; AND EVERY PERSON TO WHOM LANDS MAY BE ALLOTTED UNDER THE
PROVISIONS OF THIS ARTICLE WHO SHALL OCCUPY AND CULTIVATE A PORTION
THEREOF FOR FIVE CONSECUTIVE YEARS SHALL THEREAFTER BE ENTITLED TO
RECEIVE A PATENT FOR THE SAME SO SOON AS HE SHALL HAVE FIFTY ACRES OF
SAID TRACT FENCED, PLOUGHED, AND IN CROP:  PROVIDED, (THAT) SAID PATENT
SHALL NOT AUTHORIZE ANY TRANSFER OF SAID LANDS, OR PORTIONS THEREOF,
EXCEPT TO THE UNITED STATES, BUT SAID LANDS AND THE IMPROVEMENTS
THEREON SHALL DESCEND TO THE PROPER HEIRS OF THE PERSONS OBTAINING A
PETENT. 

ARTICLE VI.  AND, FURTHER, IN CONSIDERATION OF THE DESTITUTION OF
SAID BANDS OF SISSITON AND WARPETON SIOUX, PARTIES HERETO, RESULTING
FROM THE CONFISCATION OF THEIR ANNUITIES AND IMPROVEMENTS, IT IS AGREED
THAT CONGRESS WILL, IN ITS OWN DISCRETION, FROM TIME TO TIME MAKE SUCH
APPROPRIATIONS AS MAY BE DEEMED REQUISITE TO ENABLE SAID INDIANS TO
RETURN TO AN AGRICULTURAL LIFE UNDER THE SYSTEM IN OPERATION ON THE
SIOUX RESERVATION IN 1862; INCLUDING, IF THOUGHT ADVISABLE, THE
ESTABLISHMENT AND SUPPORT OF LOCAL AND MANUAL LABOR SCHOOLS; THE
EMPLOYMENT OF AGRICULTURAL, MECHANICAL, AND OTHER TEACHERS; THE OPENING
AND IMPROVEMENT OF INDIVIDUAL FARMS; AND GENERALLY SUCH OBJECTS AS
CONGRESS IN ITS WISDOM SHALL DEEM NECESSARY TO PROMOTE TO AGRICULTURAL
IMPROVEMENT AND CIVILIZATION OF SAID BANDS. 

ARTICLE VII.  AN AGENT SHALL BE APPOINTED FOR SAID BANDS, WHO SHALL BE
LOCATED AT LAKE TRAVERSE; AND WHENEVER THERE SHALL BE FIVE HUNDRED
(500) PERSONS OF SAID BANDS PERMANENTLY LOCATED UPON THE DEVIL'S LAKE
RESERVATION THERE SHALL BE AN AGENT OR OTHER COMPETENT PERSON APPOINTED
TO SUPERINTEND AT THAT PLACE THE AGRICULTURAL, EDUCATIONAL, AMD
MECHANICAL INTERESTS OF SAID BANDS. 

ARTICLE VIII.  ALL EXPENDITURES UNDER THE PROVISIONS OF THIS TREATY
SHALL BE MADE FOR THE AGRICULTURAL IMPROVEMENT AND CIVILIZATION OF THE
MEMBERS OF SAID BANDS AUTHORIZED TO LOCATE UPON THE RESPECTIVE
RESERVATIONS, AS HEREINBEFORE SPECIFIED, IN SUCH MANNER AS MAY BE
DIRECTED BY LAW; BUT NO GOODS, PROVISIONS, GROCERIES, OR OTHER ARTICLES
-EXCEPT MATERIALS FOR THE ERECTION OF HOUSES AND ARTICLES TO FACILITATE
THE OPERATIONS OF AGRICULTURE--SHALL BE ISSUED TO INDIANS OR MIXED
BLOODS ON EITHER RESERVATION UNLESS IT BE IN PAYMENT FOR LABOR
PERFORMED OR FOR PRODUCE DELIVERED:  PROVIDED, THAT, WHEN PERSONS
LOCATED ON EITHER RESERVATION, BY REASON OF AGE, SICKNESS, OR
DEFORMITY, ARE UNABLE TO LABOR, THE AGENT MAY ISSUE CLOTHING AND
SUBSISTENCE TO SUCH PERSONS FROM SUCH SUPPLIES AS MAY BE PROVIDED FOR
SAID BANDS. 

ARTICLE IX.  THE WITHDRAWAL OF THE INDIANS FROM ALL DEPENDENCE UPON
THE CHASE AS A MEANS OF SUBSISTENCE BEING NECESSARY TO THE ADOPTION OF
CIVILIZED HABITS AMONG THEM, ITS DESIRABLE THAT NO ENCOURAGEMENT BE
AFFORDED THEM TO CONTINUE THEIR HUNTING OPERATIONS AS MEANS OF SUPPORT,
AND, THEREFORE, IT IS AGREED THAT NO PERSON WILL BE AUTHORIZED TO TRADE
FOR FURS OR PELTRIES WITHIN THE LIMITS OF THE LAND CLAIMED BY SAID
BANDS, AS SPECIFIED IN THE SECOND ARTICLE OF THIS TREATY, IT BEING
CONTEMPLATED THAT THE INDIANS WILL RELY SOLELY UPON AGRICULTURAL AND
MECHANICAL LABOR FOR SUBSISTENCE, AND THAT THE AGENT WILL SUPPLY THE
INDIANS AND MIXED-BLOODS ON THE RESPECTIVE RESERVATIONS WITH CLOTHING,
PROVISIONS, &C., AS SET FORTH IN ARTICLE EIGHT, SO SOON AS THE SAME
SHALL BE PROVIDED FOR THAT PURPOSE.  AND IT IS FURTHER AGREED THAT NO
PERSON NOT A MEMBER OF SAID BANDS, PARTIES THERETO WHETHER WHITE, MIXED
BLOOD, OR INDIAN, EXCEPT PERSONS IN THE EMPLOY OF THE GOVERNMENT OR
LOCATED UNDER ITS AUTHORITY, SHALL BE PERMITTED TO LOCATE UPON SAID
LANDS, EITHER FOR HUNTING, TRAPPING, OR AGRICULTURAL PURPOSES. 

ARTICLE X. THE CHIEFS AND HEADMEN LOCATED UPON EITHER OF THE
RESERVATIONS SET APART FOR SAID BANDS ARE AUTHORIZED TO ADOPT SUCH
RULES, REGULATIONS, OR LAWS FOR THE SECURITY OF LIFE AND PROPERTY, THE
ADVANCEMENT OF CIVILIZATION, AND THE AGRICULTURAL PROSPERITY OF THE
MEMBERS OF SAID BANDS UPON THE RESPECTIVE RESERVATIONS, AND SHALL HAVE
AUTHORITY, UNDER THE DIRECTION OF THE AGENT, AND WITHOUT EXPENSE TO THE
GOVERNMENT, TO ORGANIZE A FORCE SUFFICIENT TO CARRY OUT ALL SUCH RULES,
REGULATIONS, OR LAWS, AND ALL RULES AND REGULATIONS FOR THE GOVERNMENT
OF SAID INIDANS, AS MAY BE PRESCRIBED BY THE INTERIOR DEPARTMENT:
PROVIDED, THAT ALL RULES, REGULATIONS, OR LAWS ADOPTED OR AMENDED BY
THECHIEFS AND HEADMEN OF EITHER RESERVATION SHALL RECEIVE THE SANCTION
OF THE AGENT. 

        APPENDIX B TO OPINION OF THE COURT AGREEMENT OF 1889,

           RATIFIED BY THE ACT OF MARCH 3, 1891, 26 STAT. 1035 

WHEREAS, BY SECTION FIVE OF THE ACT OF CONGRESS ENTITLED " AN ACT TO
PROVIDE FOR THE ALLOTMENT OF LANDS IN SEVERALTY TO INDIANS ON THE
VARIOUS RESERVATIONS, AND TO EXTEND THE PROTECTION OF THE LAWS OF THE
UNITED STATES AND TERRITORIS OVER THE INDIANS, AND FOR OTHER PURPOSES,"
APPORVED FEBRUARY EIGHTH, EIGHTEEN HUNDRED AND EIGHTY-SEVEN, IT IS
PROVIDED " THAT AT ANY TIME AFTER LANDS HAVE BEEN ALLOTTED TO ALL THE
INDIAN OF ANY TRIVE, AS HEREIN PROVIDED, OR SOONER," IF IN THE OPINION
OF THE PRESIDENT IT SHALL BE FOR THE BEST INTERESTS OF SAID TRIBE, IT
SHALL BE LAWFULL FOR THE SECRETARY OF THE INTERIOR TO NEGOTIAGE WITH
SUCH INDIAN TRIBE FOR THE PURCHASE AND RELEASE BY THE SAID TRIBE, IN
CONFORMITY WITH THE TREATY OR STATUTE UNDER WHICH SUCH RESERVATION IS
HELD, OF SUCH PORTIONS OF ITS RESERVATIONS NOT ALLOTTED AS SUCH TRIBE
SHALL FROM TIME TO TIME, CONSENT TO SELL, ON SUCH TERMS AND CONDITIONS
AS SHALL BE CONSIDERED JUST AND EQUITABLE BETWEEN THE UNITED STATES AND
SAID TRIBE OF INDIANS, WHICH PURCHASE SHALL NOT BE COMPLETE UNTIL
RATIFIED BY CONGRESS; AND THE FORM AND MANNER OF EXECUTING SUCH RELEASE
SHALLALSO BE PRESCRIBED BY CONGRESS. 

WHEREAS THE SISSETON ADN WAHPETON BANDS OF DAKOTA OR SIOUX INDIANS
ARE DESIROUS OF DISPOSING OF A PORTION OF THE LAND SET APART AND
RESERVED TO THEM BY THE THIRD ARTICLE OF THE TREATY OF FEBRUARY
NINETEENTH, EIGHTEEN HUNDRED AND SIXTY-SEVEN, BETWEEN THEM AND THE
UNITED STATES, AND SITUATED PARTLY IN THE STATE OF NORTH DAKOTA AND
PARTLY IN THE STATE OF SOUTH DAKOTA: 

NOW, THEREFORE, THIS AGREEMENT MADE AND ENTERED INTO IN PURSUANCE OF
THE PROVISIONS OF THE ACT OF CONGRESS APPROVED FEBRUARY EIGHTH,
EIGHTEEN HUNDRED AND EITHTYSEVEN, AFORESAID, AT THE SISSETON AGENCY,
SOUTH DAKOTA, ON THIS THE TWELFTH DAY OF DECEMBER, EIGHTEEN HUNDRED AND
EIGHTY-NINE, BY AND BETWEEN ELIPHALET WHITTLESEY, D.W. DIGGS, AND
CHARLES A. MAXWELL, ON THE PART OF THE UNITED STATES, DULY AUTHORIZED
AND EMPOWERED THERETO, AND THE CHIEFS, HEAD-MEN, AND MALE ADULT MEMBERS
OF THE SISSETON AND WAHPETON BANDS OF DAKOTA OR SIOUX INDIANS,
WITHNESSETH:

        ARTILCE I. 

THE SISSETON AND WAHPETON BANDS OF DAKOTA OR SIOUX INDIANS HEREBY
CEDE, SELL, RELINQUISH, AND CONVEY TO THE UNITED STATES ALL THEIR
CLAIM, RIGHT, TITLE, AND INTEREST IN AND TO ALL THE UNALLOTTED LANDS
WITHIN THE LIMITS OF THE RESERVATION SET APART TO SAID BANDS OF INDIANS
AS AFORESAID REMAINING AFTER THE ALLOTMENTS AND ADDITIONAL ALLOTMENTS
PROVIDED FOR IN ARTICLE FOUR OF THIS AGREEMENT SHALL HAVE BEEN MADE. 

        ARTICLE II. 

IN CONSIDERATION FOR THE LANDS CEDED, SOLD, RELINQUISHED, AND
CONVEYED AS AFORESAID, THE UNITED STATES STIPULATES AND AGREES TO PAY
TO THE SISSETON AND WAHPETON BANDS OF DAKOTA OR DIOUX INDIANS, PARTIES
HERETO, THE SUM OF TWO DOLLARS AND FIFTY CENTS PER ACRE FOR EACH AND
EVERY ACRE THEREOF, AND IT IS AGREED BY THE PARTIES HERETO THAT THE SUM
SO TO BE PAID SHALLBE HELD IN THE TREASURY OF THE UNITED STATES FOR THE
SOLE USE AND BENEFIT OF THE SAID BANDS OF INDIANS; AND THE SAME, WITH
INTEREST THEREON AT THREE PER CENTUM PER ANNUM, SHALL BE AT ALL TIMES
SUBJECT TO APPROPRIATION BY CONGRESS FOR THE EDUCATION AND CIVILIZATION
OF THE SAID BANDS OF INDIANS, OR MEMBERS THEREOF, AS PROVIDED IN
HUNDRED AND EIGHTY-SEVEN, AND ENTITLED " AN ACT TO PROVIDED FOR THE
ALLOTMENT OF LANDS IN SEVERALTY TO INDIANS ON THE VARIOUS RESERVATIONS,
AND TO EXTEND THE PROTECTION OF THE LAWS OF THE UNITED STATES AND
TERRITORIES OVER THE INDIANS, AND FOR OTHER PURPOSES:"  PROVIDED, THAT
ANY RELIGIOUS SOCIETY OR OTHER ORGANIZATION NOW OCCUPYING, UNDER PROPER
AUTHORITY, FOR RELIGIOUS OR EDUCATIONAL WORK AMONG THE INDIANS, ANY OF
THE LAND IN THIS AGREEMENT CEDED, SOLD, RELINQUISHED, AND CONVEYED
SHALL HAVE THE RIGHT, FOR TWO YEARS FROM THE DATE OF THE RATIFICATION
OF THIS INSTRUMENT, WITHIN WHICH TO PURCHASE THE LANDS SO OCCUPIED AT A
PRICE TO BE FIXED BY THE CONGRESS OF THE UNITED STATES:  PROVIDED
FURTHER, THAT THE CESSION, SALE, RELINQUISHMENT, AND CONVEYANCE OF THE
LANDS DESCRIBED IN ARTICLE ONE OF THIS AGREEMENT SHALL NOT TAKE EFFECT
AND BE IN FORCE UNTIL THE SUM OF THREE HUNDRED AND FORTY-TWO THOUSAND
SEVEN HUNDRED AND SEVENTY-EIGHT DOLLARS AND THIRTY-SEVEN CENTS,
TOGETHER WITH THE SUM OF EIGHTEEN THOUSAND AND FOUR HUNDRED DOLLARS,
SHALL HAVE BEEN PAID TO SAID BANDS OF INDIANS, AS SET FORTH AND
STIPULATED IN ARTICLE THIRD OF THIS AGREEMENT. 

        ARTICLE III. 

THE UNITED STATES STUPULATES AND AGREES TO PAY TO THE SISSETON AND
WAHPETON BANDS OF DAKOTA OR SIOUX INDIANS, PARTIES HERETO, PER CAPITA,
THE SUM OF THREE HUNDRED AND FORTY-TWO THOUSAND SEVEN HUNDRED AND
SEVENTY-EIGHT DOLLARS AND THIRTY-SEVEN CENTS, BEING THE AMOUNT FOUND TO
BE DUE CERTAIN MEMBERS OF SAID BANDS OF INDIANS WHO SERVED IN THE
ARMIES OF THE UNITED STATES AGAINST THEIR OWN PEOPLE, WHEN AT WAR WITH
THE UNITED STATES, AND THEIR FAMILIES AND DESCENDANTS, UNDER THE
PROVISIONS OF THE FOURTH ARTICLE OF THE TREATY OF JULY TWENTY-THIRD,
EIGHTEEN HUNDRED AND FIFTY-ONE, AND OF WHICH THEY HAVE BEEN WRONGFULLY
AND UNJUSTLY DEPRIVED BY THE OPERATION OF THE PROVISIONS OF AN ACT OF
CONGRESS APPROVED FEBRUARY SIXTEENTH, EIGHTEEN HUNDRED AND SIXTY-THREE,
AND ENTITLED " AN ACT FOR THE RELIEF OF PERSONS FOR DAMAGES SUSTAINED
BY REASON OF DEPREDATION, AND INJURIES BY CERTAIN BANDS OF SIOUX
INDIANS"; SAID SUM BEING AT THE RATE OF EIGHTEEN THOUSAND FOUR HUNDRED
DOLLARS PER ANNUM FROM JULY FIRST, EIGHTEEN HUNDRED AND SIXTY-TWO, TO
JULY FIRST, EIGHTEEN HUNDRED AND EIGHTY-EIGHT LESS THEIR PRO RATA SHARE
OF THE SUM OF SIX HUNDRED AND SIXTEEN THOUSAND AND EIGHT-SIX DOLLARS
AND FIFTY-TWO CENTS, HERETOFORE APPROPRIATED FOR THE BENEFIT OF SAID
SESSETON AND WAHPETON BANDS OF DAKOTA OR SIOUX INDIANS, AS SET FORTH IN
REPORT NUMBERED NINETEEN HUNDRED AND FIFTY-THREE, OF THE HOUSE OF
REPRESENTATIVES, FIFTIETH CONGRESS, FIRST SESSION.  HC #458 

THE UNITED STATES FURTHER AGREES TO PAY TO SAID BANDS OF INDIANS, ER
CAPITA, THE SUM OF EIGHTEEN THOUSAND AND FOUR HUNDRED DOLLARS ANNUALLY
FROM THE FIRST DAY OF JULY, EIGHTEEN HUNDRED AND EIGHTY-EIGHT, TO THE
FIRST DAY OF JULY, NINETEEN HUNDRED AND ONE, THE LATTER DATE BEING THE
PERIOD AT WHICH THE ANNUITIES TO SAID BANDS OF INDIANS WERE TO CEASE,
UNDER THE TERMS OF THE FOURTH ARTICLE OF THE TREATY OF JULY TWENTY
THIRD, EIGHTEEN HUNDRED AND FIFTY-ONE, AFORESAID; AND IT IS HEREBY
FURTHER STIPULATED AND AGREED THAT THE AFORESAID SUM OF THREE HUNDRED
AND FORTY-TWO THOUSAND SEVEN HUNDRED AND SEVENTY-EIGHT DOLLARS AND
THIRTY-SEVEN CENTS, TOGETHER WITH THE SUM OF EIGHTEEN THOUSAND AND FOUR
HUNDRED DOLLARS, DUE THE FIRST DAY OF JULY, EIGHTEEN HUNDRED AND EIGHTY
NINE, SHALL BECOME IMMEDIATLEY AVAILABLE UPON THE RATIFICATION OF THIS
AGREEMENT.              ARTICLE IV.     IT IS FURTHER STIPULATED AND
AGREED THAT THERE SHALL BE ALLOTTED TO EACH INDIVIDUAL MEMBER OF THE
BANDS OF INDIANS, PARTIES HERETO, A SUFFICIENT QUANTITY, WHICH, WITH
THE LANDS HERETOFORE ALLOTTED, SHALL MAKE IN EACH CASE ONE HUNDRED AND
SIXTY ACRES, AND IN CASE NO ALLOTMENT HAS BEEN MADE TO ANY INDIVIDUAL
MEMBER OF SAID BANDS, THEN AN ALLOTMENT OF ONE HUNDRED AND SIXTY ACRES
SHALL BE MADE TO SUCH INDIVIDUAL, THE OBJECT OF THIS ARTICLE BEING TO
EQUALIZE THE ALLOTMENTS AMONG THE MEMBERS OF SAID BANDS, SO THAT EACH
INDIVIDUAL, INCLUDING MARRIED WOMEN, SHALL HAVE ONE HUNDRED AND SIXTY
ACRES OF LAND; AND PATENTS SHALL ISSUE FOR THE LANDS ALLOTTED IN
PURSUANCE OF THE PROVISIONS OF THIS ARTICLE, UPON THE SAME TERMS AND
CONDITIONS AND LIMITATIONS AS IS PROVIDED IN SECTION FIVE OF THE ACT OF
CONGRESS, APPROVED FEBRUARY EIGHTH, EIGHTEEN HUNDRED AND EIGHTY-SEVEN,
HEREINBEFORE REFERRED TO.

        ARTICLE V. 

THE AGREEMENT CONCLUDED WITH THE SAID SISSETON AND WAHPETON BANDS OF
DAKOTA OR SIOUX INDIANS, ON THE EIGHTH DAY OF DECEMBER, EIGHTEEN
HUNDRED AND EIGHT-FOUR, GRANTING A RIGHT OF WAY THROUGH THEIR
RESERVATION FOR THE CHICAGO, MILWAUKEE AND SAINT PAUL RAILWAY, IS
HEREBY ACCEPTED, RATIFIED AND CONFIRMED. 

   ARTICLE VI. 

THIS AGREEMENT SHALL NOT TAKE EFFECT AND BE IN FORCE UNTIL RATIFIED
BY THE CONGRESS OF THE UNITED STATES. 

IN WITNESS WHEREOF WE HAVE HEREUNTO SET OUR HANDS AND SEALS THE DAY
AND YEAR ABOVE WRITTEN. 

ELIPHALET WHITTLESEY, 

D. W. DIGGS, 

CHAS. A. MAXWELL, ON THE PART OF THE UNITED STATES. 

THE FOREGOING ARTICLES OF AGREEMENT HAVING BEEN FULLY EXPLAINED TO
US, IN OPEN COUNCIL, WE, THE UNDERSIGNED, BEING MALE ADULT MEMBERS OF
THE SISSETON AND WAHPETON BANDS OF DAKOTA OR SIOUX INDIANS, DO HEREBY
CONSENT AND AGREE TO ALL THE STIPULATIONS, AND CONDITIONS, AND
PROVISIONS THEREIN CONTAINED. 

SIMON ANANANGMARI (HIS X MARK), AND OTHERS 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

IN MY VIEW SOUTH DAKOTA HAS NO JURISDICTION OVER EITHER THE CIVIL
SUIT IN THE FIRST OF THESE TWO CASES OR THE CRIMINAL PROSECUTIONS
INVOLVED IN THE SECOND.  THE SO-CALLED JURISDICTIONAL ACTS TOOK PLACE
IN " INDIAN COUNTRY" OVER WHICH THE FEDERAL REGIME HAS EXCLUSIVE
JURISDICTION UNTIL AND UNLESS THE UNITED STATES RELINQUISHES IT AND
THAT HAS NOT BEEN DONE HERE.  HERE, AS IN UNITED STATES V. MAZURIE, 419
U.S. 544 (1975), THE ACTS WERE DONE WITHIN " INDIAN COUNTRY" AS DEFINED
IN 18 U.S.C. 1151, FOR THEY OCCURRED ON LAND "WITHIN THE LIMITS OF" AN
INDIAN RESERVATION "NOTHWITHSTANDING THE ISSUANCE OF ANY PATENT...." 

PETITIONER DE COTEAU IS AN ENROLLED MEMBER OF THE SISSETON-WAHPETON
SIOUX TRIBE AGAINST WHOM SOUTH DAKOTA BROUGHT DEPENDENCY AND NEGLECT
PROCEEDINGS IN THE STATE COURTS, SEEKING TO TERMINATE HER PARENTAL
AUTHORITY OVER HER MINOR CHILDREN, ALSO ENROLLED MEMBERS OF THE TRIBE. 
THE PARTIES STIPULATED THAT ALL OF THE FACTS RELEVANT TO THE COURT'S
ORDER TOOK PLACE ON THE LAKE TRAVERSE RESERVATION WHICH WAS ESTABLISHED
UNDER THE TREATY OF FEBRUARY 19, 1867, 15 STAT. 505.  APPORXIMATELY
HALF OF AND HALF OCCURRED ON LAND PATENTED TO NON-INDIANS.  THE SOUTH
DAKOTA SUPREME COURT RULED THAT SINCE SOME OF THE INCIDENTS PERTAINING
TO DEPENDENCY AND NEGLECT OCCURRED ON NONTRUST LAND WITHIN THE
RESERVATION, THEY HAPPENED ON LAND IN "NON-INDIAN COUNTRY."  87 S.D. -
, 211 N.W. 2D 843, 846 (1973). 

PETITIONER ERICKSON IS THE WARDEN OF A SOUTH DAKOTA PENTITENTIARY
HAVING IN CUSTODY THE 10 RESPONDENTS IN NO. 73 - 1500.  THEY ARE ALL
MEMBERS OF THE SISSETON-WAHPETON TRIBE, AND THEIR CRIMES WERE COMMITTED
WITHIN THE BOUNDARIES OF THE LAKE TRAVERSE RESERVATION BUT ON LAND
OWNED BY NON-INDIANS.  THE COURT OF APPEALS, RULING ON PETITIONS FOR
HABEAS CORPUS, HELD THAT SOUTH DAKOTA HAD NO JURISDICTION TO TRY
RESPONDENTS, 489 F. 2D 99 (CA8 1973). 

THE TREATY OF FEBRUARY 19, 1867, GRANTED THESE INDIANS A PERMANENT
RESERVATION WITH DEFINED BOUNDARIES AND THE RIGHT TO MAKE THEIR OWN
LAWS AND BE GOVERNED BY THEM SUBJECT TO FEDERAL SUPERVISION, 15 STAT.
505, AS AMENDED.  NO MORE IS ASKED HERE; AND IT MUST BE CONCEDED THAT
THE JURISDICTIONAL ACTS TOOK PLACE WITHIN THE CONTOURS OF THAT
RESERVATION. 

IN 1889 THESE INDIANS AND THREE COMMISSIONERS ENTERED INTO AN
AGREEMENT THAT, TO FURNISH THE INDIANS THE WHERE-WITHAL TO SURVIVE,
SOME OF THEIR LANDS WOULD BE OPENED FOR SETTLEMENT.  S. EXEC. DOC. NO.
66, 51ST CONG., 1ST SESS., 19 (1890).  THAT AGREEMENT WAS THE OCCASION
FOR THE ACT OF MAR. 3, 1891, 26 STAT. 1035.  THE 1891 ACT SETS FORTH
THE ENTIRE AGREEMENT, WHICH AGREEMENT WAS MADE UNDER THE AUTHORITY OF
THE GENERAL ALLOTMENT ACT OF FEB. 18, 1887, 24 STAT. 388, AUTHORIZING
THE SECRETARY OF THE INTERIOR, IF THE PRESIDENT APPROVES, TO NEGOTIATE
WITH AN INDIAN TRIBE FOR THE ACQUISITION BY THE UNTIED STATES OF SUCH
PORTIONS OF ITS LANDS WHICH THE TRIBE CONSENTS TO SELL ON TERMS
"CONSIDERED JUST AND EQUITABLE."  5, 24 STAT. 389.  THE INDIANS
UNDERTOOK TO SELL ALL THEIR CLAIM "TO ALL THE UNALLOTTED LANDS WITHIN
THE LIMITS OF THE RESERVATION."  26 STAT. 1036.  THERE IS NOT A WORD TO
SUGGEST THAT THE BOUNDARIES OF THE RESERVATION WERE ALTERED.  THE
PROCEEDS OF SALE WERE TO BE USED "FOR THE EDUCATION AND CIVILIZATION"
OF THESE INDIANS.  27, 26 STAT. 1039.  THE LANDS ALLOTTED WERE NOT FOR
THE GENERAL USE OF THE UNITED STATES BUT WITH THE EXCEPTION OF SCHOOL
LANDS /1/ WERE TO BE "SUBJECT ONLY TO ENTRY AND SETTLEMENT UNDER THE
HOMESTEAD AND TOWNSITE LAWS" AS PROVIDED IN 30 OF THE ACT.  26 STAT.
1039.  THE PURPOSE WAS NOT TO ALTER OR CHANGE THE RESERVATION BUT TO
LURE WHITE SETTLERS ONTO THE RESERVATION WHOSE HABITS OF WORK AND
LEANINGS TOWARD EDUCATION WOULD INVIGORATE LIFE ON THE RESERVATION. 
/2/ 

WHILE DOUBTFUL CLAUSES IN AGREEMENTS WITH INDIANS ARE RESOLVED IN
FAVOR OF THE INDIANS, SEE ALASKA PACIFIC FISHERIES V. UNITED STATES,
248 U.S. 78, 89 (1918), THERE IS NO DOUBTFUL LANGUAGE IN THE AGREEMENT
OR IN THE 1891 ACT.  WE RECENTLY STATED IN MATTZ V. ARNETT, 412 U.S.
481, 504 N. 22 (1973), THAT CONGRESS USES "CLEAR LANGUAGE OF EXPRESS
TERMINATION" TO DISESTABLISH AND DIMINISH A RESERVATION AND RESTORE IT
TO THE PUBLIC DOMAIN "WHEN THAT RESULT IS DESIRED."  CONGRESS IN THE
VERY ACT THAT OPENED THE INSTANT RESERVATION OPENED SEVERAL OTHER
RESERVATIONS ALSO.  BUT AS RESPECTS THEM IT USED DIFFERENT LANGUAGE. 
IN CONTRAST TO THE INSTANT RESERVATION, ONE OTHER TRIBE AGREED TO
"CEDE, RELINQUISH, AND FOREVER AND ABSOLUTELY SURRENDER TO THE UNITED
STATES ALL THEIR CLAIM, TITLE AND INTEREST OF EVERY KIND AND CHARACTER
IN AND TO" A DESCRIBED TRACT.  /3/ ANOTHER AGREED TO "CEDE, CONVEY,
TRANSFER, RELINQUISH, AND SURRENDER FOREVER AND ABSOLUTELY, WITHOUT ANY
RESERVTION" ALL THEIR CLAIM, TITLE, AND INTEREST IN A DESCRIBED TRACT. 
/4/ ANOTHER AGREED TO "CEDE, SELL, AND RELINQUISH TO THE UNITED STATES
ALL THEIR RIGHT, TITLE, AND INTEREST IN AND TO ALL THAT PORTION" OF A
NAMED RESERVATION AS SPECIFICALLY DESCRIBED.  /5/ ANOTHER AGREED TO
SELL TO THE UNITED STATES "ALL THAT PORTION" OF THE RESERVATION
DESCRIBED BY METES AND BOUNDS.  /6/ CONGRESS MADE AN UNMISTAKABLE
CHANGE WHEN IT CAME TO THE LANDS CEDED IN THE INSTANT CASE. 

THE DIMENSIONS OF THE TRAGEDY INFLICTED BY TODAY'S DECISION ARE MADE
APPARENT BY THE FACTS PERTAINING TO THE MANAGEMENT OF THIS
RESERVATION. 

THIS TRIBE IS A SELF-GOVERNING POLITICAL COMMUNITY, A STATUS WHICH
IS NOT LIGHTLY IMPAIRED, MC CLANAHAN V. ARIZONA STATE TAX COMM'N, 411
U.S. 164, 168 (1973); WILLIAMS V. LEE, 358 U.S. 217, 220 (1959).  THE
SOUTH DAKOTA DECISION LIMITS TRIBAL JURISDICTION TO THE "CLOSED"
PORTION OF THE RESERVATION.  THAT TEARS THE RESERVATION ASUNDER.  THE
ONLY PROVISION OF THE 1891 ACT WHICH EXTENDS STATE JURISDICTION INTO
THE RESERVATION IS A CLAUSE IN 30 WHICH EXEMPTS SECTIONS 16 AND 36 AND
RESERVES THEM "FOR COMMON SCHOOL PURPOSES," AND MAKES THEM "SUBJECT TO
THE LAWS OF THE STATE WHEREIN LOCATED."  THAT LANGUAGE WAS DEEMED
NECESSARY BECAUSE THE SOUTH DAKOTA ENABLING ACT DID NOT RESERVE THE
16TH AND 36TH SECTIONS IN INDIAN RESERVATIONS FOR SCHOOL PURPOSES;
HENCE THIS SPECIAL PROVISION HAD TO BE MADE.  /7/ 

TODAY ONLY A SMALL PERCENTAGE OF THE MEMBERS OF THE TRIBE LIVE ON
THE "CLOSED" PART OF THE RESERVATION.  THE OFFICE OF THE LOCAL BUREAU
OF INDIAN AFFAIRS IS AT SISSETON WHICH IS NOT IN THE "CLOSED"
RESERVATION.  FEDERAL SERVICES TO MEMBERS OF THE TRIBE EXTEND TO THOSE
RESIDING ON LAND OPENED TO SETTLEMENT AS WELL AS TO THOSE ON TRUST
ALLOTMENTS.  THE UNITED STATES SUPPORTS A TRIBAL GOVERNMENT TO MAKE AND
ENFORCE LAWS THROUGHOUT THE LAND WITHIN THE EXTERIOR BOUNDARIES OF THE
RESERVATION.  THE ATTITUDE OF CONGRESS, OF THE DEPARTMENT OF THE
INTERIOR (UNDER WHICH THE BUREAU OF INDIAN AFFAIRS FUNCTIONS), AND OF
THE TRIBE IS THAT THE JURISDICTION OF THE TRIBE EXTENDS THROUGHOUT THE
TERRITORY OF THE RESERVATION AS DESCRIBED IN THE TREATY.  A TRIBAL
CONSTITUTION APPROVED AUGUST 26, 1966, PERPETUATES THAT CONCEPT: 

" THE JURISDICITON OF THE SISSETON-WAHPETON SIOUX TRIBE SHALL EXTEND
TO LANDS LAYING IN THE TERRITORY WHTHIN THE ORIGINAL CONFINES OF THE
LAKE TRAVERSE RESERVATION AS DESCRIBED IN ARTICLE III OF THE TREATY OF
FEBRUARY 19, 1867." 

THE CODE OF THE TRIBE ASSERTS A JURISDICTION OVER THE SAME DOMAIN: 

" THE (SISSETON-WAHPETON SIOUX TRIBAL) COURT SHALL HAVE A CIVIL AND
CRIMINAL JURISDICTION WITHIN THE BOUNDARIES OF THE SISSETON-WAHPETON
INDIAN RESERVATION AS DEFINED IN THE TREATY OF FEBRUARY 19, 1867
INCLUDING TRUST AND NON-TRUST LANDS, ALL ROADS, WATERS, BRIDGES, ADN
LANDS USED FOR FEDERAL PURPOSES." 

THE TRIBE HAS A POLICE FORCE AND A COURT.  THE TRIBE PROVIDES RENTAL
HOUSING OF 240 UNITS.  IT PROVIDES FIRE PROTECTION.  IT IS THE MAJOR
EMPLOYER.  IT OPERATES THE ONLY GARBAGE COLLECTION AND DISPOSAL.  IT IS
THE MAJOR GOVERNMENTAL ENTITY WITHIN THE RESERVATION BOUNDARIES,
SERVICING INDIANS /8/ AND NON-INDIANS. 

IF THIS WERE A CASE WHERE A MASON-SIXON TYPE OF LINE HAD BEEN DRAWN
SEPARATING THE LAND OPENED FOR HOMSTEADING FROM THAT RETAINED BY THE
INDIANS, IT MIGHT WELL BE ARGUED THAT RESERVATION HAD BEEN DIMINISHED;
BUT THAT IS NOT THE PATTERN THAT TOOK PLACE AFTER 1891.  UNITS OF LAND
SUITABLE FOR HOMESTEADERS WERE SCATTERED THROUGHOUT THE RESERVATION. 
IT IS INDEED DIFFICULT, LOOKING AT A CURRENT MAP, TO FIND ANY
SUBSTANTIAL UNIT OF CONTIGUOUS INDIAN LAND LEFT.  THE MAP PICTURE, AS
STATED IN ORAL ARGUMENT, SHOWS A "CRAZY-QUILT PATTERN."  THE "CRAZY
QUILT" OR "CHECKERBOARD" JURISDICTION DEFEATS THE RIGHT OF TRIBAL SELF
GOVERNMENT GUARANTEED BY ART. X OF THE 1867 TREATY, 15 STAT. 510, AND
NEVER ABROGATED. 

IN SEYMOUR V. SUPERINTENDENT, 368 U.S. 351, 358 (1962), WE WERE
INVITED TO MAKE A LIKE CONSTRUCTION OF " INDIAN COUNTRY" AS USED IN 18
U.S.C. 1151.  WE REJECTED THAT OFFER SAYING: 

"(WHERE THE EXISTENCE OR NONEXISTENCE OF AN INDIAN RESERVATION, AND
THEREFORE THE EXISTENCE OR NON-EXISTENCE FEDERAL JURISDICTION, DEPENDS
UPON THE OWNERSHIP OF PARTICULAR PARCELS OF LAND, LAW ENFORCEMENT
OFFICERS OPERATING IN THE AREA WILL FIND IT NECESSARY TO SEARCH TRACT
BOOKS IN ORDER TO DETERMINE WHETHER CRIMINAL JURISDICTION OVER EACH
PARTICULAR OFFENSE, EVEN THOUGH COMMITTED WIHTIN THE RESERVATION, IS IN
THE STATE OR FEDERAL GOVERNMENT.  SUCH AN IMPRACTICAL PATTERN OF
CHECKERBOARD JURISDICTION WAS AVOIDED BY THE PLAIN LANGUAGE OF 1151 AND
WE SEE NO JUSTIFICATION FOR ADOPTING AN UNWARRANTED CONSTRUCTION OF
THAT LANGUAGE WHERE THE RESULT WOULD BE MERELY TO RECREATE CONFUSION
CONGRESS SPECIFICALLY SOUGHT TO AVOID." 

THIS CASE INVOLVES JURISDICTION OVER INDIANS--NOT NON-INDIANS AS IN
UNITED STATES V. MAZURIE, 419 U.S. 544 (1975)--WITHIN THE BOUNDARIES OF
THE RESERVATION.  IF SOUTH DAKOTA HAS HER WAY, THE FEDERAL GOVERNMETN
AND THE TRIBAL GOVERNMENT HAVE NO JURISDICTION WHEN AN ACT TAKES PLACE
IN A HOMESTEADED SPOT IN THE CHECKERBOARD; AND SOUTH DAKOTA HAS NO SAY
OVER ACTS COMMITTED ON "TRUST" LANDS.  BUT WHERE IN FACT DID THE
JURISDICITONAL ACT OCCUR?  JURISDICTION DEPENDENT ON THE "TRACT BOOK"
PROMISES TO BE UNCERTAIN AND HECTIC.  MANY ACTS ARE ANBULATORY.  IN A
GIVEN CASE, WHO WILL MOVE--THE STATE, THE TRIBE, OR THE FEDERAL
GOVERNMENT?  THE CONTEST PROMISES TO BE UNSEEMLY, THE ONLY
BENEFICIARIES BEING THOSE WHO BENEFIT FROM CONFUSION AND UNCERTAINTY. 
WITHOUT STATE INTERFERENCE, INDIANS VIOLATING THE LAW WITHIN THE
RESERVATION WOULD BE SUBJECT ONLY TO TRIBAL JURISDICITON, WHICH PUTS
THE RESPONSIBILITY WHERE THE FEDERAL GOVERNMENT CAN SUPERVISE IT.
CHECKERBOARD JURISDICTION CRIPPLES THE UNITED STATES IN FULFILLING ITS
FIDUCIARY RESPONSIBILITIES OF GUARDIANSHIP AND PROTECTION OF INDIANS. 
IT IS THE END OF TRIBAL AUTHORITY FOR IT INTRODUCES SUCH AN ELEMENT OF
UNCERTAINTY AS TO WHAT AGENCY AHS JURISDICITON AS TO MAKE MODEST TRIBAL
LEADERS ABDICATE AND AGGRESSIVE ONES UNDERTAKE THE LOSING BATTLE
AGAINST SUPERIOR STATE AUTHORITY.  AS MR. JUSTICE MILLER STATED NEARLY
100 YEARS AGO CONCERNING THE IMPORTANCE OF EXCLUSIVE FEDERAL
JURISDICTION OVER ACTS COMMITTED BY INDIANS WITHIN THE BOUNDARIES OF A
RESERVATION:  " THEY OWE NO ALLEGIANCE TO THE STATES, AND RECEIVE FROM
THEM NO PROTECTION.  BECAUSE OF THE LOCAL ILL FEELING, THE PEOPLE OF
THE STATES WHERE THEY ARE FOUND ARE OFTEN THEIR DEADLIEST ENEMIES." 
UNITED STATES V. KAGAMA, 118 U.S. 375, 384 (1886).     /1/ SEE 35 CONG.
REC. 3187, WHERE SENATOR GAMBLE STATED: 

" UNDER THE PROVISIONS OF THE EMABLING ACT AUTHORIZING THE ADMISSION
OF THE STATE OF SOUTH DAKOTA INTO THE UNION, SECTIONS 16 AND 36 IN
EVERY TOWNSHIP WERE RESERVED FOR SCHOOL PURPOSES.  THIS PROVISION DID
NOT APPLY TO PERMANENT INDIAN RESERVATIONS, BUT BECAME OPERATIVE WHEN
THE INDIAN TITLE WAS EXTINGUISHED AND THE LANDS RESTORED TO AND BECAME
A PART OF THE PUBLIC DOMAIN.  THIS WOULD WITHDRAW ABOUT 29,000 ACRES OF
THESE LANDS AND WOULD LEAVE 387,000 ACRES TO BE OPENED TO SETTLEMENT,
AND WHICH WOULD BE AFFECTEE BY THE PROPOSED AMENDMENT." 

SEE ALSO 38 CONG. REC. 1423, WHERE CONGRESSMAN BURKE SAID:  " I
WOULD STATE THAT UNDER THE ENABLING ACT UNDER WHICH THE STATE OF SOUTH
DAKOTA WAS ADMITTED TO THE UNION IT WASPROVIDED THAT SECTIONS 16 AND 36
IN SAID STATE SHOULD BE RESERVED FOR THE USE OF THE COMMON SCHOOLS OF
THAT STATE, AND IT FURTHER PROVIDED THAT AS TO THE LANDS WITHIN AN
INDIAN RESERVATION THE PROVISIONS OF THAT GRANT WOULD NOT BECOME
OPERATIVE UNTIL THE RESERVATION WAS EXTINGUISHED AND THE LAND RESTORED
TO THE PUBLIC DOMAIN.  THAT ENABLING ACT WAS PASSED BY CONGRESS ON THE
22ND DAY OF FEBRUARY, 1889.  IN MARCH OF THAT SAME YEAR CONGRESS
RATIFIED A TREATY WITH THE SIOUX INDIANS IN SOUTH DAKOTA FOR THE
CESSION OF SOMETHING LIKE TEN OR ELEVEN MILLIONS OF ACRES OF LANDS, AND
MADE AN EXPRESS APPROPRIATION, IN ACCORDANCE WITH THE PROVISIONS OF THE
ENABLING ACT, TO PAY OUTRIGHT OUT THE TREASURY THE MONEY FOR SECTION 16
AND 36 OF THAT LAND AT THE PRICE STUPULATED FOR IN THE TREATY." 

/2/ A MEMBER OF THE COMMISSION NEGOTIATING WITH THE INDIANS STATED:
" THIS RESERVATION WILL BE QUICKLY SETTLED BY WHITES, BRINGING THE ARTS
OF CIVILIZATION, ESTABLISHING SCHOOLS IN EVERY TOWNSHIP, SO THAT YOU
CAN SEND YOUR CHILDREN TO SCHOOL .... ANOTHER ADVANTAGE IS, THAT THE
WHITES WILL EXCHANGE WORK WITH YOU.  THIS WILL ENABLE YOU TO CULTIVATE
50 ACRES WHERE YOU NOW CULTIVATE 10.  THERE ARE OTHER ADVANTAGES WHICH
I HAVE NOT MENTIONED.  ONE IS YOU WILL HAVE TOWNS AND RAILROADS AND
GOOD MARKETS NEAR YOU.  ALL THIS WILL MAKE YOUR LANDS MORE VALUABLE....
YOU HITCH THE TWO TOGETHER AND THE WHITE MAN AND THE INDIAN WILL PULL
TOGETHER."  S. EXEC. DOC. NO. 66, 51ST CONG., 1ST SESS., 24 (1890). 

/3/ CITIZEN BAND OF POTTAWATOMIE INDIANS, ACT OF MAR. 3, 1891, 26
STAT. 1016. 

/4/ CHEYENNE AND ARAPAHOE INDIANS, ACT OF MAR. 3, 1891, 26 26 STAT.
1022. 

/5/ ARICKAREE, GROS VENTRE, AND MANDAN INDIANS, ACT OF MAR. 3, 1891,
26 STAT. 1032. 

/6/ CROW INDIANS, ACT OF MAR. 3, 1891, 26 STAT. 1040. 

/7/ SEE N. 1, SUPRA. 

/8/ THE DE COTEAU CASE INVOLVES A PROBLEM OF DOMESTIC RELATIONS
WHICH GOES TO THE HEART OF TRIBAL SELF-GOVERNMENT.  THE QUESTION OF A
CHILD'S WELFARE CANNOT BE DECIDED WITHOUT REFERENCE TO HIS FAMILY
STRUCTURE.  THIS INVOLVES BOTH A SYMPATHECTIC KNOWLEDGE OF THE
INDIVIDUALS INVOLVED, AND A KNOWLEDGE OF THE BACKGROUND CULTURE.  THE
TRIBE IS FEARFUL THAT IF SOUTH DAKOTA HAS JURISDICTION OVER TRIBAL
CHILDREN IT WILL PLACE THEM WITH NON-INDIAN FAMILIES WHERE THEY WILL
LOSE THEIR CULTURAL IDENTITY.  ACCORDINGLY THE TRIBE ON JULY 6, 1972,
PASSED THE FOLLOWING RESOLUTION: 

"WHEREAS, THE SISSETON-WAHPETON SIOUX TRIBE IS INTERESTED IN THE
WELL-BEING OF ALL THE ENROLLED MEMBERS OF THE TRIBE AND 

"WHEREAS, MINOR CHILDREN OF SISSETON-WAHPETON DESCENT HAVE BEEN
PLACED IN NON-INDIAN FOSTER AND ADOPTIVE HOMES ALL OVER THE UNITED
STATES. 

"WHEREAS, THE TRIBAL COUNCIL IS IN THE PROCESS OF RESEARCHING THE
SOVEREIGN STATUS OF THE TRIBAL ENTITY IN RESPECT TO ITS JURISDICION AS
STATED IN THE CONSTITUTION OF THE SISSETON-WAHPETON SIOUX TRIBE, AND, 

"WHEREAS, IT IS THE INTENT OF THE SISSETON-WAHPETON SIOUX TRIBE TO
ESTABLISH ITS OWN METHOD OF SOCIAL AND ECONOMIC DEVELOPMENT AND WELL
BEING OF THE ENROLLED MEMBERS AND, 

"WHEREAS, IT IS THE STRONG FEELING OF THE TRIBAL COUNCIL TO 'MAKE
EVERY STAND POSSIBLE TO KEEP THESE CHILDREN ON THE RESERVATION'
(MINUTES OF $4UNE 6TH COUNCIL MEETING) AND 'THE TRIBAL COUNCIL WOULD
LIKE THESE CHILDREN TO BE PLACED IN AN INDIAN LICENSED HOME UNTIL AN
INDIAN HOME CAN BE FOUND FOR THEM TO BE ADOPTED.' 

"THEREFORE, BE IT RESOLVED, THAT MR. BERT HIRSCH, LEGAL COUNSEL FROM
THE ASSOCIATION OF AMERICAN INDIAN AFFAIRS, WILL STAND ON THESE GROUNDS
IN HIS ARGUMENT IN ROBERTS COUNTY COURT ON JULY 7, 1972 AND FUTURE
CASES OF THIS NATURE." 

BERTRAM E. HIRSCH ARGUED THE CAUSE FOR PETITIONER IN NO. 73 - 1148. 
WITH HIM ON THE BRIEFS WAS ARTHUR LAZARUS, JR. WILLIAM F. DAY, JR.
SPECIAL ASSISTANT ATTORNEY GENERAL OF SOUTH DADOTA, ARGUED THE CAUSE
FOR PETITIONER IN NO. 73 - 1500 AND RESPONDENT IN NO. 73 - 1148.  ON
THE BRIEFS WERE KERMIT A. SANDE, ATTORNEY GENERAL, WALTER W. ANDRE,
ASSISTANT ATTORNEY GENERAL, AND TOM D. TOBIN, SPECIAL ASSISTANT
ATTORNEY GENERAL.  LARRY R. GUSTAFSON ARGUED THE CAUSE AND FILED A
BRIEF FOR RESPONDENTS IN NO. 73 - 1500. 

HARRY R. SACHSE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING AFFIRMANCE IN NO. 73 - 1500.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL JOHNSON, LOUIS F.
CLAIBORNE, AND EDMUND B. CLARK. 

SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL JOHNSON, LOUIS F.
CLAIBORNE, HARRY R. SACHSE, AND EDMUND B. CLARK FILED A BRIEF FOR THE
UNITED STATES AS AMICUS CURIAE URGING REVERSAL IN NO. 73 - 1148. 

ALLEN I. OLSON, ATTORNEY GENERAL, AND PAUL M. SAND, FIRST ASSISTANT
ATTORNEY GENERAL, FILED A BRIEF FOR THE STATE OF NORTH DAKOTA AS AMICUS
CURIAE URGING AFFIRMANCE IN NO. 73 - 1148, JOINED BY THE ATTORNEYS
GENERAL FOR THEIR RESPECTIVE STATES AS FOLLOWS:  EVELLE J. YOUNGER OF
CALIFORNIA, W. ANTHONY PARK OF IDAHO, RICHARD C. TURNER OF IOWA, ROBERT
L. WOODAHL OF MONTANA, CLARENCE A. H. MEYER OF NEBRASKA, ROBERT L. LIST
OF NEVADA, DAVID L. NORVELL OF NEW MEXICO, LARRY D. DERRYBERRY OF
OAKLAHOMA, SLADE GORTON OF WASHINGTON, AND ROBERT W. WARREN OF
WISCONSIN. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN NO. 73 - 1500 WERE FILED
BY GLEN A. WILKINSON, JERRY C. STRAUS, AND RICHARD A. BAENEN FOR THE
ARAPAHOE TRIBE OF WIND RIVER RESERVATION ET AL., AND BY THE SISSETON
WAHPETON SIOUX TRIBE. 
..END :


















COX BROADCASTING CORP. V. COHN, 420 U.S. 469 


       COX BROADCASTING CORP. ET AL. V. COHN

APPEAL FROM THE SUPREME COURT OF GEORGIA

        NO. 73 - 938.  ARGUED NOVEMBER 11, 1974--DECIDED MARCH 3,

1975; 231 GA. 60, 200 S.E.2D 127, REVERSED. 


    APPELLANT REPORTER, EMPLOYED BY A TELEVISION STATION OWNED BY

  APPELLANT BROADCASTING COMPANY, DURING A NEWS REPORT OF A RAPE

  CASE, BROADCAST THE DECEASED RAPE VICTIM'S NAME, WHICH HE HAD

  OBTAINED FROM THE INDICTMENTS, WHICH WERE PUBLIC RECORDS

  AVAILABLE FOR INSPECTION.  THE VICTIM'S FATHER, APPELLEE, BROUGHT

  A DAMAGES ACTION AGAINST APPELLANTS IN RELIANCE ON A GEORGIA

  STATUTE MAKING IT A MISDEMEANOR TO BROADCAST A RAPE VICTIM'S

  NAME, CLAIMING THAT HIS RIGHT TO PRIVACY HAD BEEN INVADED BY THE

  BROADCAST OF HIS DAUGHTER'S NAME.  THE TRIAL COURT, REJECTING

APPELLANTS' CLAIMS THAT THE BROADCAST WAS PRIVILEGED UNDER THE

  FIRST AND FOURTEENTH AMENDMENTS, HELD THAT THE GEORGIA STATUTE

  GAVE A CIVIL REMEDY TO THOSE INJURED BY ITS VIOLATION AND GRANTED

  SUMMARY JUDGMENT FOR APPELLEE.  ON APPEAL, THE GEORGIA SUPREME

  COURT INITIALLY HELD THAT, WHILE THE TRIAL COURT ERRED IN

  CONSTRUING THE GEORGIA STATUTE TO EXTEND A CAUSE OF ACTION FOR

  INVASION OF PRIVACY, THE COMPLAINT STATED A CAUSE OF ACTION FOR

  COMMON-LAW INVASION OF PRIVACY, AND THAT THE FIRST AND FOURTEENTH

  AMENDMENTS DID NOT, AS A MATTER OF LAW, REQUIRE JUDGMENT FOR

APPELLANTS.  ON A MOTION FOR REHEARING APPELLANTS CONTENDED THAT

  A RAPE VICTIM'S NAME WAS A MATTER OF PUBLIC INTEREST AND HENCE

  COULD BE PUBLISHED WITH IMPUNITY, BUT THE SUPREME COURT DENIED

  THE MOTION ON THE GROUND THAT THE STATUTE DECLARED A STATE POLICY

  THAT A RAPE VICTIM'S NAME WAS NOT A MATTER OF PUBLIC CONCERN, AND

  SUSTAINED THE STATUTE AS A LEGITIMATE LIMITATION ON THE FIRST

  AMENDMENT'S FREEDOM OF EXPRESSION.  HELD: 

     1.  THIS COURT HAS JURISDICTION OVER THE APPEAL UNDER 28
U.S.C. 1257 (2).  PP. 476 - 487. 

     (A) THE CONSTITUTIONALITY OF THE GEORGIA STATUTE WAS "DRAWN IN

  QUESTION" WITHIN THE MEANING OF 1257 (2), SINCE, WHEN THE GEORGIA

  SUPREME COURT RELIED UPON IT AS A DECLARATION OF STATE PUBLIC

  POLICY, THE STATUTE WAS DRAWN IN QUESTION IN A MANNER DIRECTLY

  BEARING UPON THE MERITS OF THE ACTION, AND THE DECISION UPHOLDING

  ITS CONSTITUTIONAL VALIDITY INVOKES THIS COURT'S APPELLATE

  JURISDICTION.  P. 476. 

     (B) THE GEORGIA SUPREME COURT'S DECISION IS A "FINAL JUDGMENT

  OR DECREE" WITHIN THE MEANING OF 1257.  IT WAS PLAINLY FINAL ON

  THE FEDERAL ISSUE OF WHETHER THE BROADCASTS WERE PRIVILEGED UNDER

  THE FIRST AND FOURTEENTH AMENDMENTS AND IS NOT SUBJECT TO FURTHER

REVIEW IN THE STATE COURTS; AND APPELLANTS WOULD BE LIABLE FOR

  DAMAGES IF THE ELEMENTS OF THE STATE CAUSE OF ACTION WERE

  PROVED.  ## HC 470 MOREOVER, SINCE THE LITIGATION COULD BE

  TERMINATED BY THIS COURT'S DECISION ON THE MERITS AND A FAILURE

  TO DECIDE THE FREE SPEECH QUESTION NOW WILL LEAVE THE GEORGIA

  PRESS OPERATING IN THE SHADOW OF CIVIL ANC CIRMINAL SANCTIONS OF

  A RULE OF LAW AND STATUTE WHOSE CONSTITUTIONALITY IS IN SERIOUS

  DOUBT, THIS COURT'S REACHING THE MERITS COMPORTS WITH ITS PAST

  PRAGMATIC APPRACH IN DETERMINING FINALITY.  PP. 476 - 487. 

     2.  THE STATE MAY NOT, CONSISTENTLY WITH THE FIRST AND

  FOURTEENTH AMENDMENTS, IMPOSE SANCTIONS ON THE ACCURATE

  PUBLICATION OF A RAPE VICTIM'S NAME OBTAINED FROM JUDICIAL

  RECORDS THAT ARE MAINTAINED IN CONNNECTION WITH A PUBLIC

  PROSECUTION AND THAT THEMSELVES ARE OPEN TO PUBLIC INSPECTION. 

  HERE, UNDER CIRCUMSTANCES WHERE APPELLANT REPORTER BASED HIS

  TELEVISED REPORT UPON NOTES TAKEN DURING COURT PROCEEDINGS AND

  OBTAINED THE RAPE VICTIM'S NAME FROM OFFICIAL COURT DOCUMENTS

  OPEN TO PUBLIC INSPECTION, THE PROTECTION OF FREEDOM OF THE PRESS

  PROVIDED BY THE FIRST AND FOURTEENTH AMENDMENTS BARS GEORGIA FROM

  AMKING APPELLANTS' BROADCASE THE BASIS OF CIVIL LIABILITY IN A

  CAUSE OF ACTION FOR INVASION OF PRIVACY THAT PENALIZES PURE

  EXPRESSION--THE CONTENT OF A PUBLICATION.  PP. 487 - 497. 

     (A) THE COMMISSION OF A CRIME, PROSECUTIONS RESULTING

  THEREFROM, AND JUDICIAL PROCEEDINGS ARISING FROM THE PROSECUTIONS

  ARE EVENTS OF LEGITIMATE CONCERN TO THE PUBLIC AND CONSEQUENTLY

  FALL WITHIN THE PRESS' RESPONSIBILITY TO REPORT THE OPERATIONS OF

  GOVERNMENT.  PP. 492 - 493. 

     (B) THE INTERESTS OF PRIVACY FADE WHEN THE INFORMATION
INVOLVED

  ALREADY APPEARS ON PUBLIC RECORD, ESPECIALLY WHEN VIEWED IN TERMS

  OF THE FIRST AND FOURTEENTH AMENDMENTS AND IN LIGHT OF THE PUBLIC

  INTEREST IN A VIGOROUS PRESS.  PP. 493 - 495. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BRENNAN, STEWART, MARSHALL, BLACKMUN, AND POWELL, JJ., JOINED. 

  POWELL, J., FILED A CONCURRING OPINION, POST, P. 497.  BURGER,

  C.J., CONCURRED IN THE JUDGMENT.  DOUGLAS, J., FILED AN OPINION

  CONCURRING IN THE JUDGMENT, POST, P. 500.  REHNIQUIST, J., FILED

  A DISSENTING OPINION, POST, P. 501. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT 

THE ISSUE BEFORE US IN THIS CASE IS WHETHER, CONSISTENTLY WITH THE
FIRST AND FOURTEENTH AMENDMENTS, A STATE MAY EXTEND A CAUSE OF ACTION
FOR DAMAGES FOR INVASION OF PRIVACY CAUSED BY THE PUBLICATION OF THE
NAME OF A DECEASED RAPE VICTIM WHICH WAS PUBLICLY REVEALED IN
CONNECTION WITH THE PROSECUTION OF THE CRIME. 

        I 

IN AUGUST 1971, APPELLEE'S 17-YEAR-OLD DAUGHTER WAS THE VICTIM OF A
RAPE AND DID NOT SURVIVE THE INCIDENT.  SIX YOUTHS WERE SOON INDICTED
FOR MURDER AND RAPE.  ALTHOUGH THERE WAS SUBSTANTIAL PRESS COVERAGE OF
THE CRIME AND OF SUBSEQUENT DEVELOPMENTS, THE IDENTITY OF THE VICTIM
WAS NOT DISCLOSED PENDING TRIAL, PERHAPS BECAUSE OF GA. CODE ANN. 26 -
9901 (1972), /1/ WHICH MAKES IT A MISDEMEANOR TO PUBLISH OR BROADCAST
THE NAME OR IDENTY OF A RAPE VICTIM.  IN APRIL 1972, SOME EIGHT MONTHS
LATER, THE SIX DEFENDANTS APPEARED IN COURT.  FIVE PLEADED GUILTY TO
RAPE OR ATTEMPTED RAPE, THE CHARGE OF MURDER HAVING BEEN DROPPED.  THE
GUILTY PLEAS WERE ACCEPTED BY THE COURT, AND THE TRIAL OF THE DEFENDANT
PLEADING NOT GUILTY WAS SET FOR A LATER DATE. 

IN THE COURSE OF THE PROCEEDINGS THAT DAY, APPELLANT WASSELL, /2/ A
REPORTER COVERING THE INCIDENT FOR HIS EMPLOYER, LEARNED THE NAME OF
THE VICTIM FROM AN EXAMINATION OF THE INDICTMENTS WHICH WERE MADE
AVAILABLE FOR HIS INSPECTION IN THE COURTROOM.  /3/ THAT THE NAME OF
THE VICTIM APPEARS IN THE INDICTMENTS AND THAT THE INDICTMENTS WERE
PUBLIC RECORDS AVAILABLE FOR INSPECTION ARE NOT DISPUTED.  /4/  LATER
THAT DAY, WASSELL BROADCAST OVER THE FACILITIES OF STATION WSB-TV, A
TELEVISION STATION OWNED BY APPELLANT COX BROADCASTING CORP., A NEWS
REPORT CONCERNING THE COURT PROCEEDINGS.  THE REPORT NAMED THE VICTIM
OF THE CRIME AND WAS REPEATED THE FOLLOWING DAY.  /5/ 

IN MAY 1972, APPELLEE BROUGTH AN ACTION FOR MONEY DAMAGES AGAINST
APPELLANTS, RELYING ON 26 - 9901 AND CLAIMING THAT HIS RIGHT TO PRIVACY
HAD BEEN INVADED BY THE TELEVISION BROADCASTS GIVING THE NAME OF HIS
DECEASED DAUGHTER.  APPELLANTS ADMITTED THE BROADCASTS BUT CLAIMED THAT
THEY WERE PRIVILEGED UNDER BOTH STATE LAW AND THE FIRST AND FOURTEENTH
AMENDMENTS.  THE TRIAL COURT, REJECTING APPELLANTS' CONSTITUTIONAL
CLAIMS AND HOLDING THAT THE GEORGIA STATUTE GAVE A CIVIL REMEDY TO
THOSE INJURED BY ITS VIOLATION, GRANTED SUMMARY JUDGMENT TO APPELLEE AS
TO LIABILITY, WITH THE DETERMINATION OF DAMAGES TO AWAIT TRIAL BY
JURY. 

ON APPEAL, THE GEORGIA SUPREME COURT, IN ITS INITIAL OPINION, HELD
THAT THE TRIAL COURT HAD ERRED IN CONSTRUING 26 - 9901 TO EXTEND A
CIVIL CAUSE OF ACTION FOR INVASION OF PRIVACY AND THUS FOUND IT
UNNECESSARY TO CONSIDER THE CONSTITUTIONALITY OF THE STATUTE.  231 GA.
60, 200 S.E. 2D 127 (1973).  THE COURT WENT ON TO RULE, HOWEVER, THAT
THE COMPLAINT STATED A CAUSE OF ACTION "FOR THE INVASION OF THE
APPELLEE'S RIGHT OF PRIVACY, OR FOR THE TORT OF PUBLIC DISCLOSURE"--A
"COMMON LAW TORT EXISTING) IN THIS JURISDICITON WITHOUT THE HELP OF THE
STATUTE THAT THE TRIAL JUDGE IN THIS CASE RELIED ON."  ID., AT 62, 200
S.E. 2D, AT 130.  ALTHOUGH THE PRIVACY INVADED WAS NOT THAT OF THE
DECEASED VICTIM, THE FATHER WAS HELD TO HAVE STATED A CLAIM FOR
INVASION OF HIS OWN PRIVACY BY REASON OF THE PUBLICATION OF HIS
DAUGHTER'S NAME.  THE COURT EXPLAINED, HOWEVER, THAT LIABILITY DID NOT
FOLLWO AS A MATTER OF LAW AND THAT SUMMARY JUDGMENT WAS IMPROPER;
WHETHER THE PUBLIC DISCLOSURE OF THE NAME ACTUALLY INVADED APPELLEE'S
"ZONE OF PRIVACY,"  AND IF SO, OT WHAT EXTENT, WERE ISSUES TO BE
DETERMINED BY THE TRIER OF FACT.  ALSO, "IN FORMULATING SUCH AN ISSUE
FOR DETERMINATION BY THE FACT-FINDER, IT IS REASONABLE TO REQUIRE THE
APPELLEE TO PROVE THAT THE APPELLANTS INVADED HIS PRIVACY WITH WILFUL
OR NEGLIGENT DISREGARD FOR THE FACT THAT REASONABLE MEN WOULD FIND THE
INVASION HIGHLY OFFENSIVE."  ID., AT 64, 200 S.E. 2D, AT 131.  THE
GEORGIA SUPREME COURT DID AGREE WITH THE TRIAL COURT, HOWEVER, THAT THE
FIRST AND FOURTEENTH AMENDMENTS DID NOT, AS A MATTER OF LAW, REQUIRE
JUDGMENT FOR APPELLANTS.  THE COURT CONCURRED WITH THE STATEMENT IN
BRISCOE V. READER'S DIGEST ASSN., INC., 4 CAL. 3D 529, 541, 483 P. 2D
34, 42 (1971), THAT "THE RIGHTS GUARANTEED BY THE FIRST AMENDMENT DO
NOT REQUIRE TOTAL ABROGATION OF THE RIGHT TO PRIVACY.  THE GOALS SOUGHT
BY EACH MAY BE ACHIEVED WITH A MINIMUM OF INTRUSION UPON THE OTHER." 

UPON MOTION FOR REHEARING THE GEORGIA COURT COUNTERED THE ARGUMENT
THAT THE VICTIM'S NAME WAS A MATTER OF PUBLIC INTEREST AND COULD BE
PUBLISHED WIHT IMPUNITY BY RELYING ON 26 - 9901 AS AN AUTHORITATIVE
DECLARATION OF STATE POLICY THAT THE NAME OF A RAPE VICTIM WAS NOT A
MATTER OF PUBLIC CONCERN.  THIS TIME THE COURT FELT COMPELLED TO
DETERMINE THE CONSTITUTIONALITY OF THE STATUTE AND SUSTAINED IT AS A
"LEGITIMATE LIMITATION ON THE RIGHT OF FREEDOM OF EXPRESSION CONTAINED
IN THE FIRST AMENDMENT."  THE COURT COULD DISCERN "NO PUBLIC INTEREST
OR GENERAL CONCERN ABOUT THE IDENTITY OF THE VICTIM OF SUCH A CRIME AS
WILL MAKE THE RIGHT TO DISCLOSE THE IDENTITY OF THE VICTIM RISE TO THE
LEVEL OF FIRST AMENDMENT PROTECTION."  231 GA., AT 68, 200 S.E. 2D, AT
134. 

WE POSTPONED DECISION AS TO OUR JURISDICTION OVER THIS APPEAL TO THE
HEARING ON THE MERITS.  415 U.S. 912 (1974).  WE CONCLUDE THAT THE
COURT HAS JURISDICTION, AND REVERSE THE JUDGMENT OF THE GEORGIA SUPREME
COURT. 

        II 

APPELLANTS INVOKE THE JAPPELLATE JURISDICTION OF THIS COURT UNDER 28
U.S.C. 1257 (2) AND, IF THAT JURISDICTIONAL BASIS IS FOUND TO BE
ABSENT, THROUGH A PETITION FOR CERTIORARI UNDER 28 U.S.C. 2103.  TWO
QUESTIONS CONCERNING OUR JURISDICTION MUST BE RESOLVED:  (1) WHETHER
THE CONSTITUTIONAL VALIDITY OF 26 - 9901 WAS "DRAWN IN QUESTION," WITH
THE GEORGIA SUPREME COURT UPHOLDING ITS VALIDITY, AND (2) WHETHER THE
DECISION FROM WHICH THIS APPEAL HAS BEEN TAKEN IS A "(FINAL JUDGMENT OR
DECREE." 

        A 

APPELLANTS CLEARLY RAISED THE ISSUE OF THE CONSTITUTIONALITY OF 26 -
9901 IN THEIR MOTION FOR REHEARING IN THE GEORGIA SUPREME COURT.  IN
DENYING THAT MOTION THAT COURT HELD:  " A MAJORITY OF THIS COURT DOES
NOT CONSIDER THIS STATUTE TO BE IN CONFLICT WITH THE FIRST AMENDMENT." 
231 GA., AT 68, 200 S.E. 2D, AT 134.  SINCE THE COURT RELIED UPON THE
STATUTE AS A DECLARATION OF THE PUBLIC POLICY OF GEORGIA THAT THE
DISCLOSURE OF RAPE VICTIM'S NAME WAS NOT TO BE PROTECTED EXPRESSION,
THE STATUTE WAS DRAWN IN QUESTION IN A MANNER DIRECTLY BEARING UPON THE
MERITS OF THE ACTION, AND THE DECISION IN FAVOR IF ITS CONSTITUTIONAL
VALIDITY INVOKES THIS COURT'S APPELLATE JURISDICTION.  CF. GARRITY V.
NEW JERSEY, 385 U.S. 493, 495 - 496 (1967). 

        B 

SINCE 1789, CONGRESS HAS GRANTED THIS COURT APPELLATE JURISDICTION
WITH RESPECT TO STATE LITIGATION ONLY AFTER THE HIGHEST STATE COURT IN
WHICH JUDGMENT COULD BE HAD HAS RENDERED A "(FINAL JUDGMENT OR
DECREE."  TITLE 28 U.S.C. 1257 RETAINS THIS LIMITATION ON OUR POWER TO
REVIEW CASES COMING FROM STATE COURTS.  THE COURT HAS NOTED THAT "(C)
ONSIDERATIONS OF ENGLISH USAGE AS WELL AS THOSE OF JUDICIAL POLICY"
WOULD JUSTIFY AN INTERPRETATION OF THE FINAL-JUDGMENT RULE TO PRECLUDE
REVIEW "WHERE ANYTHING FURTHER REMAINS TO BE DETERMINED BY A STATE
COURT, NO MATTER HOW DISSOCIATED FROM THE ONLY FEDERAL ISSUE THAT HAS
FINALLY BEEN ADJUDICATED BY THE HIGHEST COURT OF THE STATE."  RADIO
STATION WOW, INC. V. JOHNSON, 326 U.S. 120, 124 (1945).  BUT THE COURT
THERE OBSERVED THAT THE RULE HAD NOT BEEN ADMINISTERED IN SUCH A
MECHANICAL FASHION AND THAT THERE WERE CIRCUMSTANCES IN WHICH THERE HAS
BEEN "A DEPARTURE FROM THIS REQUIREMENT OF FINALITY FOR FEDERAL
APPELLATE JURISDICITON."  IBID. 

THESE CIRCUMSTANCES WERE SAID TO BE "VERY FEW," IBID.; BUT AS THE
CASES HAVE UNFOLDED, THE COURT HAS RECURRINGLY ENCOUNTERED SITUATIONS
IN WHICH THE HIGHEST COURT OF A STATE HAS FINALLY DETERMINED HE FEDERAL
ISSUE PRESENT IN A PARTICULAR CASE, BUT IN WHICH THERE ARE FURTHER
PROCEEDINGS IN THE LOWER STATE COURTS TO COME.  THERE ARE NOW AT LEAST
FOUR CATEGORIES OF SUCH CASES IN WHICH THE COURT HAS TREATED THE
DECISION ON THE FEDERAL ISSUE AS A FINAL JUDGMENT FOR THE PURPOSES OF
28 U.S.C. 1257 AND HAS TAKEN JURISDICITON WITHOUT AWAITING THE
COMPLETION OF THE ADDITIONAL PROCEEDINGS ANTICIPATED IN THE LOWER STATE
COURTS.  IN MOST, IF NOT ALL, OF THE CASES IN THESE CATEGORIES, THESE
ADDITIONAL PROCEEDINGS WOULD NOT REQUIRE THE DECISION OF OTHER FEDERAL
QUESTIONS THAT MIGHT ALSO REQUIRE REVIEW BY THE COURT AT A LATER DATE,
/6/ AND IMMEDIATE RATHER THAN DELAYED REVIEW WOULD BE THE BEST WAY TO
AVOID "THE MISCHIEF OF ECONOMIC WASTE AND OF DELAYED JUSTICE," RADIO
STATION WOW, INC. V. JOHNSON, SUPRA, AT 124, AS WELL AS PRECIPITATE
INTERFERENCE WITH STATE LITIGATION.  /7/  IN THE CASES IN THE FIRST TWO
CATEGORIES CONSIDERED BELOW, THE FEDERAL ISSUE WOULD NOT BE MOOTED OR
OTHERWISE AFFECTED BY THE PROCEEDINGS YET TO BE HAD BECAUSE THOSE
PROCEEDINGS HAVE LITTLE SUBSTANCE, THEIR OUTCOME IS CERTAIN, OR THEY
ARE WHOLLY UNRELATED TO THE FEDERAL QUESTION.  IN THE OTHER TWO
CATEGORIES, HOWEVER, THE FEDERAL ISSUE WOULD BE MOTTED IF THE
PETITIONER OR APPELLANT SEEKING TO BRING THE ACTION HERE PREVAILED ON
THE MERITS IN THE LATER STATE COURT PROCEEDINGS, BUT THERE IS
NEVERTHELESS SUFFICIENT JUSTIFICAITON FOR IMMEDIATE REVIEW OF THE
FEDERAL QUESTION FINALLY DETERMINED IN THE STATE COURTS. 

IN THE FIRST CATEGORY ARE THOSE CASES IN WHICH THERE ARE FURTHER
PROCEEDINGS--EVEN ENTIRE TRIALS--YET TO OCCUR IN THE STATE COURTS BUT
WHERE FOR ONE REASON OR ANOTHER THE FEDERAL ISSUE IS CONCLUSIVE OR THE
OUTCOME OF FURTHER PROCEEDINGS PREORDAINED.  IN THESE CIRCUMSTANCES,
BECAUSE THE CASE IS FOR ALL PRACTICAL PURPOSES CONCLUDED, THE JUDGMENT
OF THE STATE COURT ON THE FEDERAL ISSUE IS DEEMED FINAL.  IN MILLS V.
ALABAMA, 384 U.S. 214 (1966), FOR EXAMPLE, A DEMURRER TO A CRIMINAL
COMPLAINT WAS SUSTAINED ON FEDERAL CONSTITUTIONAL GROUNDS BY A STATE
TRIAL COURT.  THE STATE SUPREME COURT REVERSED, REMANDING FOR JURY
TRIAL.  THIS COURT TOOK JURISDICTION ON THE REASONING THAT THE
APPELLANT HAD NO DEFENSE OTHER THAN HIS FEDERAL CLAIM AND COULD NOT
PREVAIL AT TRIAL ON THE FACTS OR ANY NONFEDERAL GROUND.  TO DISMISS THE
APPEAL "WOULD NOT ONLY BE AN INEXCUSABLE DELAY OF THE BENEFITS CONGRESS
INTENDED TO GRANT BY PROVIDING FOR APPEAL TO THIS COURT, BUT IT WOULD
ALSO RESULT IN A COMPLETELY UNNECESSARY WASTE OF TIME AND ENERGY IN
JUDICIAL SYSTEMS ALREADY TROUBLED BY DELAYS DUE TO CONGESTED DOCKETS." 
ID., AT 217 - 218 (FOOTNOTE OMITTED).  /8/ 

SECOND, THERE ARE CASES SUCH AS RADIO STATION WOW, SUPRA, AND BRANDY
V. MARYLAND, 373 U.S. 83 (1963), IN WHICH THE FEDERAL ISSUE, FINALLY
DECIDED BY THE HIGHEST COURT IN THE STATE, WILL SURVIVE AND REQUIRE
DECISION REGARDLESS OF THE OUTCOME OF FUTURE STATE COURT PROCEEDINGS. 
IN RADIO STATION WOW, THE NEBRASKA SUPREME COURT DIRECTED THE TRANSFER
OF THE PROPERTIES OF A FEDERALLY LICENSED RADIO STATION AND ORDERED AN
ACCOUNTING, REJECTING THE CLAIM THAT THE TRANSFER ORDER WOULD INTERFERE
WITH THE FEDERAL LICENSE.  THE FEDERAL ISSUE WAS HELD REVIEWABLE HERE
DESPITE THEPENDING ACCOUNTING ON THE "PRESUPPOSITION ... THAT THE
FEDERAL QUESTIONS THAT COULD COME HERE HAVE BEEN ADJUDICATED BY THE
STATE COURT, AND THAT THE ACCOUNTING WHICH REMAINS TO BE TAKEN COULD
NOT REMOTELY GIVE RISE TO A FEDERAL QUESTION ... THAT MAY LATER COME
HERE...."  326 U.S., AT 127.  THE JUDGMENT REJECTING THE FEDERAL CLAIM
AND DIRECTING THE TRANSFER WAS DEEMED "DISSOCIATED FROM A PROVISION FOR
AN ACCOUNTING EVEN THOUGH THAT IS DECREED IN THE SAME ORDER."  ID., AT
126.  NOTHING THAT OCULD HAPPEN IN THE COURSE OF THE ACCOUNTING, SHORT
OF SETTLEMENT OF THE CASE, WOULD FORECLOSE OF MAKE UNNECESSARY DECISION
ON THE FEDERAL QUESTION.  OLDER CASES IN THE COURT HAD REACHED THE SAME
RESULT ON SIMILAR FACTS.  CARONDELET CANAL & NAV. CO. V. LOUISIANA, 233
U.S. 362 (1914); FORGAY V. CONRAD, 6 HOW.  201 (1848).  IN THE LATTER
CASE, THE COURT, IN AN OPINION BY MR. CHIEF JUSTICE TANEY, STATED THAT
THE COURT HAD NOT UNDERSTOOD THE FINAL-JUDGMENT RULE "IN THIS STRICT
AND TECHNICAL SENSE, BUT HAS GIVEN (IT) A MORE LIBERAL, AND, AS WE
THINK, A MORE REASONABLE CONSTRUCTION, AND ONE MORE CONSONANT TO THE
INTENTION OF THE LEGISLATURE."  ID., AT 203.  /9/ 

IN THE THIRD CATEGORY ARE THOSE SITUATIONS WHERE THE FEDERAL CLAIM
HAS BEEN FINALLY DECIDED, WITH FURTHER PROCEEDINGS O ON THE MERITS IN
THE STATE COURTS TO COME, BUT IN WHICH LATER REVIEW OF THE FEDERAL
ISSUE CANNOT BE HAD, WHATEVER THE ULTIMATE OUTCOME OF THE CASE.  THUS,
IN THESE CASES, IF THE PARTY SEEKING INTERIM REVIEW ULTIMATELY PREVAILS
ON THE MERITS, THE FEDERAL ISSUE WILL BE MOOTED; IF HE WERE TO LOSE ON
THE MERITS, HOWEVER, THE GOVERNING STATE LAW WOULD NOT PERMIT HIM AGAIN
TO PRESENT HIS FEDERAL CLAIMS FOR REVIEW.  THE COURT HAS TAKEN
JURISDICTION IN THESE CIRCUMSTANCES PRIOR TO COMPLETION OF THE CASE IN
THE STATE COURTS.  CALIFORNIA V. STEWART, 384 U.S. 436 (1966) (DECIDED
WITH MIRANDA V. ARIZONA), EPITOMIZES THIS CATEGORY.  THERE THE STATE
COURT REVERSED A CONVICTION ON FEDERAL CONSTITUTIOANL GROUNDS AND
REMANDED FOR A NEW TRIAL.  ALTHOUGH THE STATE MIGHT HAVE PREVAILED AT
TRIAL, WE GRANTED ITS PETITION FOR CERTIORARI AND AFFIRMED, EXPLAINING
THAT THE STATE JUDGMENT WAS "FINAL" SINCE AN ACQUITTAL OF THE DEFENDANT
AT TRIAL WOULD PRECLUDE, UNDER STATE LAW, AN APPEAL BY THE STATE.  ID.,
AT 498 N. 71.     A RECENT DECISION IN THIS CATEGORY IS NORTH DAKOTA
STATE BOARD OF PHARMACY V. SYNER'S DRUG STORES, INC., 414 U.S. 156
(1973), IN WHICH THE PHARMACY BOARD REJECTED AN APPLICATION FOR A
PHARMACY OPERATING PERMIT RELYING ON A STATE STATUTE SPECIFYING
OWNERSHIP REQUIREMENTS WHICH THE APPLICANT DID NOT MEET.  THE STATE
SUPREME COURT HELD THE STATUTE UNCONSTITUTIONAL AND REMANDED THE MATTER
TO THE BOARD FOR FURTHER CONSIDERATION OF THE APPLICATION, FREED FROM
THE CONSTRIANTS OF THE OWNERSHIP STATUTE.  THE BOARD BROUGHT THE CASE
HERE, CLAIMING THAT THE STATUTE WAS CONSTITUTIONALLY ACCEPTABLE UNDER
MODERN CASES.  AFTER REVIEWING THE VARIOUS CIRCUMSTANCES UNDER WHICH
THE FINALITY REQUIREMENT HAS BEEN DEEMED STATISFIED DESPITE THE FACT
THAT LITIGATION HAD NOT TERMINATED IN THE STATE COURTS, WE ENTERTAINED
THE CASE OVER CLAIMS THAT WE HAD NO JURISDICTION.  THE FEDERAL ISSUE
WOULD NOT SURVIVE THE REMAND, WHATEVER THERESULT OF THE STATE
ADMINISTRATIVE PROCEEDINGS.  THE BOARD MIGHT DENY THE LICENSE ON STATE
LAW GROUNDS, THUS FORECLOSING THE FEDERAL ISSUE, AND THE COURT ALSO
ASCERTAINED THAT UNDER STATE LAW THE BOARD COULD NOT BRING THE FEDERAL
ISSUE HERE IN THE EVEN THE APPLICANT STAISFIED THE REQUIREMENTS OF
STATE LAW EXCEPT FOR THE INVALIDATED OWNERSHIP STATUTE.  UNDER THESE
CIRCUMSTANCES, THE ISSUE WAS RIPE FOR REVIEW.  /10/ 

LASTLY, THERE ARE THOSE SITUATIONS WHERE THE FEDERAL ISSUE HAS BEEN
FINALLY DECIDED IN THE STATE COURTS WITH FURTHER PROCEEDINGS PENDING IN
WHICH THE PARTY SEEKING REVIEW HERE MIGHT PREVAIL ON THE MERITS ON
NONFEDERAL GROUNDS, THUS RENDERING UNNECESSARY REVIEW OF THE FEDERAL
ISSUE BY THIS COURT, AND WHERE REVERSAL OF THE STATE COURT ON THE
FEDERAL ISSUE WOULD BE PRECLUSIVE OF ANY FURTHER LITIGATION ON THE
RELEVANT CAUSE OF ACTION RATHER THAN MERELY CONTROLLING THE NATURE AND
CHARACTER OF, OR DETERMINING THE ADMISSIBILITY OF EVIDENCE IN, THE
STATE PROCEEDINGS STILL TO COME.  IN THESE CIRCUMSTANCES, IF A REFUSAL
IMMEDIATELY TO REVIEW THE STATE COURT DECISION MIGHT SERIOUSLY ERODE
FEDERAL POLICY, THE COURT HAS ENTERTAINED AND DECIDED THE FEDERAL
ISSUE, WHICH ITSELF HAS BEEN FINALLY DETERMINED BY THE STATE COURTS FOR
PURPOSES OF THE STATE LITIGATION. 

IN CONSTRUCTION LABORERS V. CURRY, 371 U.S. 542 (1963), THE STATE
COURTS TEMPORARILY ENJOINED LABOR UNION PICKETING OVER CLAIMS THAT THE
NATIONAL LABOR RELATIONS BOARD HAD EXCLUSIVE JURISDICTION OF THE
CONTROVERSY.  THE COURT TOOK JURISDICTION FOR TWO INDEPENDENT REASONS. 
FIRST, THE POWER OF THE STATE COURT TO PROCEED IN THE FACE OF THE
PREMPTION CLAIM WAS DEEMED AN ISSUE SEPARABLE FROM THE MERITS AND RIPE
FOR REVIEW IN THIS COURT, PARTICULARLY "WHEN POSTPONING REVIEW WOULD
SERIOUSLY ERODE THE NATIONAL LABOR POLICY REQUIRING THE SUBJECT MATTER
OF RESPONDENTS' CAUSE TO BE HEARD BY THE... BOARD, NOT BY THE STATE
COURTS."  ID., AT 550.  SECOND, THE COURT WAS CONVINCED THAT IN ANY
EVENT THE UNION HAD NO DEFENSE TO THE ENTRY OF A PERMANENT INJUNCTION
OTHER THAN THE PREEMPTION CLAIM THAT HAD ALREADY BEEN RULED ON IN THE
STATE COURTS.  HENCE THE CASE WAS FOR ALL PRACTICAL PURPOSES CONCLUDED
IN THE STATE TRIBUNALS. 

IN MERCANTILE NATIONAL BANK V. LANGDEAU, 371 U.S. 555 (1963), TWO
NATIONAL BANKS WERE SUED, ALONG WITH OTHERS IN THE COURTS OF TRAVIS
COUNTY, TEXAS.  THE CLAIM ASSERTED WAS CONSPIRACY TO DEFRAUD AN
INSURANCE COMPANY.  THE BANKS AS A PRELIMINARY MATTER ASSERTED THAT A
SPECIAL FEDERAL VENUE STATUTE IMMUNIZED THEM FROM SUIT IN TRAVIS COUNTY
AND THAT THEY COULD PROPERLY BE SUED ONLY IN ANOTHER COUNTY.  ALTHOUGH
TRIAL WAS STILL TO BE HAD AND THE BANKS MIGHT WELL PREVAIL ON THE
MERITS, THE COURT, RELYING ON CURRY, ENTERTAINED THE ISSUE AS A
"SEPARATE AND INDEPENDENT MATTER, ANTERIOR TO THE MERITS AND NOT
ENMESHED IN THE FACTUAL AND LEGAL ISSUES COMPRISING THE PLAINTIFF'S
CAUSE OF ACTION."  ID., AT 558.  MOREOVER, IT WOULD SERVE THE POLICY OF
THE FEDERAL STATUTE "TO DETERMINE NOW IN WHICH STATE COURT APPELLANTS
MAY BE TRIED RATHER THAN TO SUBJECT THEM ... TO LONG AND OCMPLEX
LITIGATION WHICH MAY ALL BE FOR NAUGHT IF CONSIDERATION OF THE
PRELIMINARY QUESTION OF VENUE IS POSTPONED UNTIL THE CONCLUSION OF THE
PROCEEDINGS."  IBID. 

MIAMI HERALD PUBLISHING CO. V. TORNAILLO, 418 U.S. 241 (1974), IS
THE LATEST CASE IN THIS CATEGORY.  /11/ THERE A CANDIDATE FOR PUBLIC
OFFICE SUED A NEWSPAPER FOR REFUSING, ALLEGEDLY CONTRARY TO A STATE
STATUTE, TO CARRY HIS REPLY TO THE PAPER'S EDITORIAL CRITICAL OF HIS
QUALIFICATIONS.  THE TRIAL COURT HELD THE ACT UNCONSTITUTIONAL, DENYING
BOTH INJUNCTIVE RELIEF AND DAMAGES.  THE STATE SUPREME COURT REVERSED,
SUSTAINING THE STATUTE AGAINST THE CHALLENGE BASED UPON THE FIRST AND
FOURTEENTH AMENDMENTS AND REMANDING THE CASE FOR A TRIAL AND
APPROPRIATE RELIEF, INCLUDING DAMAGES.  THE NEWSPAPER BROUGTH THE CASE
HERE.  WE SUSTAINED OUR JURISDICITON, RELYING ON THE PRINCIPLES
ELABORATED IN THE NORTH DAKOTA CASE AND OBSERVING: 

  " WHICHEVER WAY WE WERE TO DECIDE ON THE MERITS, IT WOULD BE

  INTOLERABLE TO LEAVE UNANSWERED, UNDER THESE CIRCUMSTANCES, AN

  IMPORTANT QUESTION OF FREEDOM OF THE PRESS UNDER THE FIRST

  AMENDMENT; AN UNEASY AND UNSETTLED CONSTITUTIONAL POSTURE OF

  104.39 COULD ONLY FURTHER HARM THE OPERATION OF A FREE PRESS. 

  MILLS V. ALABAMA, 384 U.S. 214, 221 - 222 (1966) (DOUGLAS, J.,

  CONCURRING).  SEE ALSO ORGANIZATION FOR A BETTER AUSTIN V. KEEFE,

  402 U.S. 415, 418 N. (1971)."  418 U.S., AT 247 N. 6 /12/ 

IN LIGHT OF THE PRIOR CASES, WE CONCLUDE THAT WE HAVE JURISDICTION
TO REVIEW THE JUDGMENT OF THE GEORGIA SUPREME COURT REJECTING THE
CHALLENGE UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO THE STATE LAW
AUTHORIZING DAMAGE SUITS AGAINST THE PRESS FOR PUBLISHING THE NAME OF A
RAPE VICTIM WHOSE IDENTITY IS REVEALED IN THE COURSE OF A PUBLIC
PROSECUTION.  THE GEORGIA SUPREME COURT'S JUDGMENT IS PLAINLY FINAL ON
THE FEDERAL ISSUE AND IS NOT SUBJECT TO FURTHER REVIEW IN THE STATE
COURTS.  APPELLANTS WILL BE LIABLE FOR DAMAGES IF THE ELEMENTS OF THE
STATE CAUSE OF ACTION ARE PROVED.  THEY MAY PREVAIL AT TRIAL ON
NONFEDERAL GROUNDS, IT IS TRUE, BUT IF THE GEORGIA COURT ERRONEOUSLY
UPHELD THE STATUTE, THERE SHOULD BE NO TRIAL AT ALL.  MOREOVER, EVEN IF
APPELLANTS PREVAILED AT TRIAL AND MADE UNNECESSARY FURTHER
CONSIDERATION OF THE CONSTITUTIONAL QUESTION, THERE WOULD REMAIN IN
EFFECT THE UNREVIEWED DECISION OF THE STATE SUPREME COURT THAT A CIVIL
ACTION FOR PUBLISHING THE NAME OF A RAPE VICTIM DISCLOSED IN A PUBLIC
JUDICIAL PROCEEDING MAY GO FORWARD DESPITE THE FIRST AND FOURTEENTH
AMENDMENTS.  DELAYING FINAL DECISION OF THE FIRST AMENDMENT CLAIM UNTIL
AFTER TRIAL WILL "LEAVE UNANSWERED ... AN IMPORTANT QUESTION OF FREEDOM
OF THE PRESS UNDER THE FIRST AMENDMENT," "AN UNEASY AND UNSETTLED
CONSTITUTIONAL POSTURE (THAT) COULD ONLY FURTHER HARM THE OPERATION OF
A FREE PRESS."  TORNILLO, SUPRA, AT 247 N. 6.  ON THE OTHER HAND, IF WE
NOW HOLD THA TTHE FIRST AND FOURTEENTH AMENDMENTS BAR CIVIL LIABILITY
FOR BROADCASTING THE VICTIM'S NAME, THIS LITIGATION ENDS.  GIVEN THESE
FACTORS--THAT THE LITIGATION COULD BE TERMINATED BY OUR DECISION ON THE
MERITS.  /13/ AND THAT A FAILURE TO DECIDE THE QUESTION NOW WILL LEAVE
THE PRESS IN GEORGIA OPERATING IN THE SHADOW OF THE CIVIL AND CRIMINAL
SANCTIONS OF A RULE OF LAW AND A STATUTE THE CONSTITUTIONALITY OF WHICH
IS IN SERIOUS DOUBT--WE FIND THAT REACHING THE MERITS IS CONSISTENT
WITH THE PRAGMATIC APPROACH THAT WE HAVE FOLLOWED IN THE PAST IN
DETERMINING FINALITY.  SEE GILLESPIE V. UNITED STATES STEEL CORP., 379
U.S. 148 (1964); RADIO STATION WOW, INC. V. JOHNSON, 326 U.S., AT 124;
MILLS V. ALABAMA, 384 U.S., AT 221 - 222 (DOUGLAS, J., CONCURRING). 
/14/

        III 

GEORGIA STOUTLY DEFENDS BOTH 26 - 9901 AND THE STATE'S COMMON-LAW
PRIVACY ACTION CHALLENGED HERE.  HER CLAIMS ARE NOT WITHOUT FORCE, FOR
POWERFUL ARGUMENTS CAN BE MADE, AND HAVE BEEN MADE, THAT HOWEVER IT MAY
BE ULTIMATELY DEFINED, THERE IS A ZONE OF PRIVACY SURROUNDING EVERY
INDIVIDUAL, A ZONE WITHIN WHICH THE STATE MAY PROTECT HIM FROM
INTRUSION BY THE PRESS, WITH ALL ITS ATTENDANT PUBLICITY.  /15/ INDEED,
THE CENTRAL THESIS OF THE ROOT ARTICLE BY WARREN AND BRANDEIS, THE
RIGHT TO PRIVACY, 4 HARV. L. REV. 193, 196 (1890), WAS THAT THE PRESS
WAS OVERSTEPPING ITS PREROGATIVES BY PUBLISHING ESSENTIALLY PRIVATE
INFORMATION AND THAT THERE SHOULD BE A REMEDY FOR THE ALLEGED ABUSES. 
/16/ 

MORE COMPELLINGLY, THE CENTURY HAS EXPERIENCED A STRONG TIDE RUNNING
IN FAVOR OF THE SO-CALLED RIGHT OF PRIVACY.  IN 1967, WE NOTED THAT
"(IT HAS BEEN SAID THAT A 'RIGHT OF PRIVACY' HAS BEEN RECOGNIZED AT
COMMON LAW IN 30 STATES PLUS THE DISTRICT OF COLUMBIA AND BY STATUTE IN
FOUR STATES."  TIME, INC. V. HILL, 385 U.S. 374, 383 N. 7.  WE THERE
CITED THE 1964 EDITION OF PROSSER'S LAW OF TORTS.  THE 1971 EDITION OF
THAT SAME SOURCE STATES TAT "(IN ONE FORM OR ANOTHER, THE RIGHT OF
PRIVACY IS BY THIS TIME RECOGNIZED AND ACCEPTED IN ALL BUT A VERY FEW
JURISDICITONS."  W. PROSSER, LAW OF TORTS 804 (4TH ED.)  (FOOTNOTE
OMITTED).  NOR IS IT IRRELEVANT HERE THAT THE RIGHT OF PRIVACY IS NO
RECENT ARRIVAL IN THE JURISPRUDENCE OF GEORGIA, WHICH HAS EMBRACED THE
RIGHT IN SOME FORM SINCE 1905 WHEN THE GEORGIA SUPREME COURT DECIDED
THE LEADING CASE OF PAVESICH V. NEW ENGLAND LIFE INS. CO., 122 GA. 190,
50 S.E. 68. 

THESE ARE IMPRESSIVE CREDENTIALS FOR A RIGHT OF PRIVACY, /17/ BUT WE
SHOULD RECOGNIZE THAT WE DO NOT HAVE AT ISSUE HERE AN ACTION FOR THE
INVASION OF PRIVACY INVOLVING THE APPROPRIATION OF ONE'S NAME OR
PHOTOGRAPH, A PHYSICAL OR OTHER TANGIBLE INTRUSION INTO A PRIVATE AREA,
OR A PUBLICATION OF OTHERWISE PRIVATE INFORMATION THAT IS ALSO FALSE
ALTHOUGH PERHAPS NOT DEFAMATORY.  THE VERSION OF THE PRIVACY TORT NOW
BEFORE US--TERMED IN GEORGIA "THE TORT OF PUBLIC DISCLOSURE," 231 GA.,
AT 60, 200 S.E. 2D, AT 130--IS THAT IN WHICH THE PLAINTIFF CLAIMS THE
RIGHT TO BE FREE FROM UNWANTED PUBLICITY ABOUT HIS PRIVATE AFFAIRS,
WHICH, ALTHOUGH WHOLLY TRUE, WOULD BE OFFENSIVE TO A PERSON OF ORDINARY
SENSIBILITIES.  BECAUSE THE GRAVAMEN OF THE CLAIMED INJURY IS THE
PUBLICATION OF INFORMATION, WHETHER TRUE OR NOT, THE DISSEMINATION OF
WHICH IS EMBARRASSING OR OTHERWISE PAINFUL TO AN INDIVIDUAL, IT IS HERE
THAT CLAIMS OF PRIVACY MOST DIRECTLY CONFRONT THE CONSTITUTIONAL
FREEDOMS OF SPEECH AND PRESS.  THE FACE-OFF IS APPARENT, AND THE
APPELLANTS URGE UPON US THE BROAD HOLDING THAT THE PRESS MAY NOT BE
MADE CRIMINALLY OR CIVILLY LIABLE FOR PUBLISHING INFORMATION THAT IS
NEITHER FALSE NOR MISLEADING BUT ABSOLUTELY ACCURATE, HOWEVER DAMAGING
IT MAY BE TO REPUTATION OR INDIVIDUAL SENSIBILITIES. 

IT IS TRUE THAT IN DEFAMATION ACTIONS, WHERE THE PROTECTED INTEREST
IS PERSONAL REPUTATION, THE PREVAILING VIEW IS THAT TRUTH IS A DEFENSE;
/18/ AND THE MESSAGE OF NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254
(1964); GARRISON V. LOUISIANA, 379 U.S. 64 (1964); CURTIS PUBLISHING
CO. V. BUTTS, 388 U.S. 130 (1967), AND LIKE CASES IS THAT THE DEFENSE
OF TRUTH IS CONSTITUTIONALLY REQUIRED WHERE THE SUBJECT OF THE
PUBLICATION IS A PUBLIC OFFICIAL OR PUBLIC WHAT IS MORE, THE DEFAMED
PUBLIC OFFICIAL OR PUBLIC FIGURE MUST PROVE NOT ONLY THAT THE
PUBLICATION IS FALSE BU THAT IT WAS KNOWINGLY SO OR WAS CIRCULATED WITH
RECKLESS DISREGARD FOR ITS TRUTH OR FALSITY.  SIMILARLY, WHERE THE
INTEREST AT ISSUE IS PRIVACY RATHER THAN REPUTATION AND THE RIGHT
CLAIMED IS TO BE FREE FROM THE PUBLICATION OF FALSE OR MISLEADING
INFORMATION ABOUT ONE'S AFFAIRS, THE TARGET OF THE PUBLICATION MUST
PROVE KNOWING OR RECKLESS FALSEHOOD WHERE THE MATERIALS PUBLISHED,
ALTHOUGH ASSERTEDLY PRIVATE, ARE "MATTERS OF PUBLIC INTEREST."  TIME,
INC. V. HILL, SUPRA, AT 387 - 388.  /19 

THE COURT HAS NEVERTHELESS CAREFULLY LEFT OPEN THE QUESTION WHETHER
THE FIRST AND FOURTEENTH AMENDMENTS REQUIRE THAT TRUTH BE RECOGNIZED AS
A DEFENSE IN A DEFAMATION ACTION BROUGTH BY A PRIVATE PERSON AS
DISTINGUISHED FROM A PUBLIC OFFICIAL OR PUBLIC FIGURE.  GARRISON HELD
THAT WHERE CRITICISM IS OF A PUBLIC OFFICIAL AND HIS CONDUCT OF PUBLIC
BUSINESS, "THE INTEREST IN PRIVATE REPUTATION IS OVERBORNE BY THE
LARGER PUBLIC INTEREST, SECURED BY THE CONSTITUTION, IN THE
DISSEMINATION OF TRUTH," 379 U.S., AT 73 (FOOTNOTE OMITTED), BUT
RECOGNIZED THAT "DIFFERENT INTERESTS MAY BE INVOLVED WHERE PURELY
PRIVATE LIBELS, TOTALLY UNRELATED TO PUBLIS C AFFAIRS, ARE CONCERNED;
THEREFORE, NOTHING WE SAY TODAY IS TO BE TAKEN AS INTIMATING NAY VIEWS
AS TO THE IMPACT OF THE CONSTITUTIONAL GUARANTEES IN THE DISCRETE AREA
OF PURELY PRIVATE LIBELS."  ID., AT 72 N. 8.  IN SIMILAR FASHION, TIME,
INC. V. HILL, SUPRA, EXPRESSLY SAVED THE QUESTION WHETHER TRUTHFUL
PUBLICATION OF VERY PRIVATE MATTERS UNRELATED TO PUBLIC AFFAIRS COULD
BE CONSTITUTIONALLY PROSCRIBED.  385 U.S., AT 383 N. 7. 

THOSE PRECEDENTS, AS WELL AS OTHER CONSIDERATIONS, COUNSEL SIMILAR
CAUTION HERE.  IN THIS SPHERE OF COLLISION BETWEEN CLAIMS OF PRIVACY
AND THOSE OF THE FREE PRESS, THE INTERESTS ON BOTH SIDES ARE PLAINLY
ROOTED IN THE TRADITIONS AND SIGNIFICANT CONCERNS OF OUR SOCIETY. 
RATHER THAN ADDRESS THE BROADER QUESTION WHETHER TRUTHFUL PUBLICATION
MAY EVER BE SUBJECTED OT CIVIL OR CRIMINAL LIABILITY CONSISTENTLY WITH
THE FIRST AND FOURTEENTH AMENDMENTS, OR TO PUT IT ANOTHER WAY, WHETHER
THE STATE MAY EVER DEFINE AND PROTECT AN AREA OF PRIVACY FREE FROM
UNWANTED PUBLICITY IN THE PRESS, IT IS APPROPRIATE TO FOCUS ON THE
NARROWER INTERFACE BETWEEN PRESS AND PRIVACY THAT THIS CASE PRESENTS,
NAMELY, WHETHER THE STATE MAY IMPOSE SANCTIONS ON THE ACCURATE
PUBLICATION OF THE NAME OF A RAPE VICTIM OBTAINED FROM PUBLIC RECORDS--
MORE SPECIFICALLY, FROM JUDICIAL RECORDS WHICH ARE MAINTAINED IN
CONNECITON WITH A PUBLIC PROSECUTION AND WHICH THEMSELVES ARE OPEN TO
PUBLIC INSPECTION.  WE ARE CONVINCED THAT THE STATE MAY NOT DO SO. 
IN THE FIRST PLACE, IN A SOCIETY IN WHICH EACH INDIVIDUAL HAS BUT
LIMITED TIME AND RESOURCES WITH WHICH TO OBSERVE AT FIRST HADN THE
OPERATIONS OF HIS GOVERNMENT, HE RELIES NECESSARILY UPON THE PRESS TO
BRING TO HIM IN CONVENIENT FORM THE FACTS OF THOSE OPERATIONS.  GREAT
RESPONSIBILITY IS ACCORDINGLY PLACED UPON THE NEWS MEDIA TO REPORT
FULLY AND ACCURATELY THE PROCEEDINGS OF GOVERNMENT, AND OFFICIAL
RECORDS AND DOCUMENTS OPEN TO THE PUBLIC ARE THE BASIC DATA OF
GOVERNEMENTAL OPERATIONS.  WITHOUT THE INFORMATION PROVIDED BY THE
PRESS MOST OF US AND MANY OF OUR REPRESENTATIVES WOULD BE UNABLE TO
VOTE INTELLIGENTLY OR TO REGISTER OPINIONS ON THE ADMINISTRATION OF
GOVERNMENT GENERALLY.  WITH RESPECT TO JUDICIAL PROCEEDINGS IN
PARTICULAR, THE FUNCTION OF THE PRESS SERVES TO GUARANTEE THE FAIRNESS
OF TRIALS AND TO BRING TO BEAR THE BENEFICIAL EFFECTS OF PUBLIC
SCRUTINY UPON THE ADMINISTRATION OF JUSTICE.  SEE SHEPPARD V. MAXWELL,
384 U.S. 333, 350 (1966). 

APPELLEE HAS CLAIMED IN THIS LITIGATION THAT THE EFFORTS OF THE
PRESS HAVE INFRINGED HIS RIGHT TO PRIVACY BY BROADCASTING TO THE WORLD
THE FACT THAT HIS DAUGHTER WAS A RAPE VICTIM.  THE COMMISSION OF CRIME,
PROSECUTIONS RESULTING FROM IT, AND JUDICIAL PROCEEDINGS ARISING FROM
THE PROSECUTIONS, HOWEVER, ARE WITHOUT QUESTION EVENTS OF LEGITIMATE
CONCERN TO THE PUBLIC AND CONSEQUENTLY FALL WITHIN THE RESPONSIBILITY
OF THE PRESS TO REPORT THE OPERATIONS OF GOVERNMENT. 

THE SPECIAL PROTECTED NATURE OF ACCURATE REPORTS OF JUDICIAL
PROCEEDINGS HAS REPEATEDLY BEEN RECOGNIZED.  THIS COURT, IN AN OPINION
WRITTEN BY MR. JUSTICE DOUGLAS, HAS SAID: 

" A TRIAL IS A PUBLIC EVENT.  WHAT TRANSPIRES IN THE COURT ROOM IS
PUBLIC PROPERTY.  IF A TRANSCRIPT OF THE COURT PROCEEDINGS HAD BEEN
PUBLISHED, WE SUPPOSE NONE WOULD CLAIM THAT THE JUDGE COULD PUNISH THE
PUBLISHER FOR CONTEMPT.  AND WE CAN SEE NO DIFFERENCE THOUGH THE
CONDUCT OF THE ATTORNEYS, OF THE JURY, OR EVEN OF THE JUDGE HIMSELF,
MAY HAVE REFLECTED ON THE COURT.  THOSE WHO SEE AND HEAR WHAT
TRANSPIRED CAN REPORT IT WITH IMPUNITY.  THERE IS NO SPECIAL PERQUISITE
OF THE JUDICIARY WHICH ENABLES IT, AS DISTINGUISHED FROM OTHER
INSTITUTIONS OF DEMOCRATIC GOVERNMENT, TO SUPRESS, EDIT, OR CENSOR
EVENTS WHICH TRANSPIRE IN PROCEEDINGS BEFORE IT."  CRAIG V. HARNEY, 331
U.S. 367, 374 (1947) (EMPHASIS ADDED).  SEE ALSO SHEPPARD V. MAXWELL,
SUPRA, AT 362 - 363; ESTES V. TEXAS, 381 U.S. 532, 541 - 542 (1965);
PENNEKAMP V. FLORIDA, 328 U.S. 331 (1946); BRIDGES V. CALIFORNIA, 314
U.S. 252 (1941). 

THE DEVELOPING LAW SURROUNDING THE TORT OF INVASION OF PRIVACY
RECOGNIZES A PRIVILEGE IN THE PRESS TO REPORT THE EVENTS OF JUDICIAL
PROCEEDINGS.  THE WARREN AND BRANDEIS ARTICLE, SUPRA, NOTED THAT THE
PROPOSED NEW RIGHT WOULD BE LIMITED IN THE SAME MANNER AS ACTIONS FOR
LIBEL AND SLANDER WHERE SUCH A PUBLICATION WAS A PRIVILEGED
COMMUNICATION:  "THE RIGHT TO PRIVACY IS NOT INVADED BY ANY PUBLICATION
MADE IN A COURT OF JUSTICE ... AND (AT LEAST IN MANY JURISDICITONS)
REPORTS OF ANY SUCH PROCEEDINGS WOULD IN SOME MEASURE BE ACCORDED A
LIKE PRIVILEGE."  /20/ 

THE RESTATEMENT OF TORTS, 867, EMBRACED AN ACTION FOR PRIVACY.  /21/
TENTATIVE DRAFT NO. 13 OF THE SECOND RESTATEMENT OF TORTS, 652 A-652 E,
DIVIDES THE PRIVACY TORT INTO FOUR BRANCHES; /22/ AND WITH RESPECT TO
THE WRONG OF GIVING UNWANTED PUBLICITY ABOUT PRIVATE LIFE, THE
COMMENTARY TO 652 D STATES:  " THERE IS NO LIABILITY WHEN THE DEFENDANT
MERELY GIVES FURTHER PUBLICITY TO INFORMATION ABOUT THE PLAINTIFF WHICH
IS ALREADY PUBLIC.  THUS THERE IS NO LIABILITY FOR GIVING PUBLICITY TO
FACTS ABOUT THE PLAINTIFF'S LIFE WHICH ARE MATTERS OF PUBLIC RECORD
...."  /23/ THE SAME IS TRUE OF THE SEPARATE TORT OF PHYSICALLY OR
OTHERWISE INTRUDING UPON THE SECLUSION OR PRIVATE AFFAIRS OF ANOTHER. 
EXAMINATION OF A PUBLIC RECORD CONCERNING THE PLAINTIFF, OR OF
DOCUMENTS WHICH THE PLAINTIFF IS REQUIRED TO KEEP AND MAKE AVAILABLE
FOR PUBLIC INSPECTION."  /24/  ACCORDING TO THIS DRAFT, ASCERTAINING
AND PUBLISHING THE CONTENTS OF PUBLIC RECORDS ARE SIMPLY NOT WITHIN THE
REACH OF THESE KINDS OF PRIVACY ACTIONS.  /25/ 

THUS EVEN THE PREVAILING LAW OF INVASION OF PRIVACY GENERALLY
RECOGNIZES THAT THE INTERESTS IN PRIVACY FADE WHEN THE INFORMATION
INVOLVED ALREADY APPEARS ON THE PUBLIC RECORD.  THE CONCLUSION IS
COMPELLING WHEN VIEWED IN TERMS OF THE FIRST AND FOURTEENTH AMENDMENTS
AND IN LIGHT OF THE PUBLIC INTEREST IN A VIGOROUS PRESS.  THE GEORGIA
CAUSE OF ACTION FOR INVASION OF PRIVACY THROUGH PUBLIC DISCLOSURE OF
THE NAME OF A RAPE VICTIM IMPOSES SANCTIONS ON PURE EXPRESSION--THE
CONTENT OF A PUBLICATION--AND NOT CONDUCT OR A COMBINATION OF SPEECH
AND NONSPEECH ELEMENTS THAT MIGHT OTHERSWISE BE OPEN TO REGULATION OR
PROHIBITION.  SEE UNITED STATES V. O' BRIEN, 391 U.S. 367, 376 - 377
(1968).  THE PUBLICATION OF TRUTHFUL INFORMATION AVAILABLE ON THE
PUBLIC RECORD CONTAINS NONE OF THE INDICIA OF THOSE LIMITED CATEGORIES
OF EXPRESSION, SUCH AS "FIGHTING" WORDS, WHICH "ARE NO ESSENTIAL PART
OF ANY EXPOSITION OF IDEAS, AND ARE OF SUCH SLIGHT SOCIAL VALUE AS A
STEP TO TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED FROM THEM IS CLEARLY
OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND MORALITY."  CHAPLINSKY
V. NEW HAMPSHIRE, 315 U.S. 568, 572 (1942) (FOOTNOTE OMMITTED). 

BY PLACING THE INFORMATION IN THE PUBLIC DOMAIN ON OFFICIAL COURT
RECORDS, THE STATE MUST BE PRESUMED TO HAVE CONCLUDED THAT THE PUBLIC
INTEREST WAS THEREBY BEING SERVED.  PUBLIC RECORDS BY THEIR VERY NATURE
ARE OF INTEREST TO THOSE CONCERNED WITH THE ADMINISTRATION OF
GOVERNMENT, AND A PUBLIC BENEFIT IS PERFORMED BY THE REPORTING OF THE
TRUE CONTENTS OF THE RECORDS BY THE MEDIA.  THE FREEDOM OF THE PRESS TO
PUBLISH THAT INFORMATION APPEARS TO US TO BE OF CRITICAL IMPORTANCE TO
OUR TYPE OF GOVERNMENT IN WHICH THE CITIZENRY IS THE FINAL JUDGE OF THE
PROPER CONDUCT OF PUBLIC BUSINESS.  IN PRESERVING THAT FORM OF
GOVERNMENT THE FIRST AND FOURTEENTH AMENDMENTS COMMAND NOTHING LESS
THAN THAT THE STATES MAY NOT IMPOSE SANCTIONS ON THE PUBLICATION OF
TRUTHFUL INFORMATION CONTAINED IN OFFICIAL COURT RECORDS OPEN TO PUBLIC
INSPECTION. 

WE ARE RELUCTANT TO EMBARK ON A COURSE THAT WOULD MAKE PUBLIC
RECORDS GENERALLY AVAILABLE TO THE MEDIA BUT FORBID THEIR PUBLICATION
IF OFFENSIVE TO THE SENSIBILITIES OF THE SUPPOSED REASONABLE MAN.  SUCH
A RULE WOULD MAKE IT VERY DIFFICULT FOR THE MEDIA TO INFORM CITIZENS
ABOUT THE PUBLIC BUSINESS AND YET STAY WITHIN THE LAW.  THE RULE WOULD
INVITE TIMIDITY AND SELF-CENSORSHIP AND VERY LIKELY LEAD TO THE
SUPPRESSION OF MANY ITEMS THAT WOULD OTHERWISE BE PUBLISHED AND THAT
SHOULD BE MADE AVAILABLE TO THE PUBLIC.  AT THE VERY LEAST, THE FIRST
AND FOURTEENTH AMENDMENTS WILL NOT ALLOW EXPOSING THE PRESS TO
LIABILITY FOR TRUTHFULLY PUBLISHING INFORMATION RELEASED TO THE PUBLIC
IN OFFICIAL COURT RECORDS.  IF THERE ARE PRIVACY INTERESTS TO BE
PROTECTED IN JUDICIAL PROCEEDINGS, THE STATES MUST RESPOND BY MEANS
WHICH AVOID PUBLIC DOCUMENTATION OR OTHER EXPOSURE OF PRIVATE
INFORMATION.  THEIR POLITICAL INSTITUTIONS MUST WEIGH THE INTERESTS IN
PRIVACY WITH THE INTERESTS OF THE PUBLIC TO KNOW AND OF THE PRESS TO
PUBLISH.  /26/ ONCE TRUE INFORMATION IS DISCLOSED IN PUBLIC COURT
DOCUMENTS OPEN TO PUBLIC INSPECTION, THE PRESS CANNOT BE SANCTIONED FOR
PUBLISHING IT.  IN THIS INSTANCE AS IN OTHERS RELIANCE MUST REST UPON
THE JUDGMENT OF THOSE WHO DECIDE WHAT TO PUBLISH OR BROADCAST.  SEE
MIAMI HERALD PUBLISHING CO. V. TORNILLO, 418 U.S., AT 258. 

APPELLANT WASSELL BASED HIS TELEVISED REPORT UPON NOTES TAKEN DURING
THE COURT PROCEEDINGS AND OBTAINED THE NAME OF THE VICTIM FROM THE
INDICTMENTS HANDED TO HIM AT HIS REQUEST DURING A RECESS IN THE
HEARING.  APPELLEE HAS NOT CONTENDED THAT THE NAME WAS OBTAINED IN AN
IMPROPER FASHION OR THAT IT WAS NOT ON AN OFFICIAL COURT DOCUMENT OPEN
TO PUBLIC INSPECTION.  UNDER THESE CIRCUMSTANCES, THE PROTECTION OF
FREEDOM OF THE PRESS PROVIDED BY THE FIRST AND FOURTEENTH AMENDMENTS
BARS THE STATE OF GEORGIA FROM MAKING APPELLANTS' BROADCAST THE BASIS
OF CIVIL LIABILITY.  /27/

                                  REVERSED. 

/1/ " IT SHALL BE UNLAWFUL FOR ANY NEWS MEDIA OR ANY OTHER PERSON TO
PRINT AND PUBLISH, BROADCAST, TELEVISE, OR DISSEMINATE THROUGH ANY
OTHER MEDIUM OF PUBLIC DISSEMINATION OR CAUSE TO BE PRINTED AND
PUBLISHED, BROADCAST, TELEVISED, OR DISSEMINATED IN ANY NEWSPAPER,
MAGAZINE, PERIODICAL OR OTHER PUBLICATION PUBLISHED IN THIS STATE OR
THROUGH ANY RADIO OR TELEVISION BROADCAST ORIGINATING IN THE STATE THE
NAME OR IDENTITY OF ANY FEMALE WHO MAY HAVE BEEN RAPED OR UPON WHOM AN
ASSAULT WITH INTENT TO COMMIT RAPE MAY HAVE BEEN MADE.  ANY PERSON OR
CORPORATION VIOLATING THEP ROVISIONS OF THIS SECTION SHALL, UPON
CONVICTION, BE PUNISHED AS FOR A MISDEMEANOR." 

THREE OTHER STATES HAVE SIMILAR STATUTES.  SEE FLA. STAT. ANN.
794.03, 794.04 (1965 AND SUPP. 1974 - 1975); S.C. CODE ANN. 16 - 81
(1962); WIS. STAT. ANN. 942.02 (1958).  THE WISCONSIN SUPREME COURT
UPHELD THE CONSTITUTIONALITY OF A PREDECESSOR OF 942.02 IN STATE V.
EVJUE, 253 WIS. 146, 33 N.W. 2D 305 (1948).  THE SOUTH CAROLINA STATUTE
WAS INVOLVED IN NAPPIER V. JEFFERSON STANDARD LIFE INSURANCE CO., 322
F. 2D 502, 505 CA4 1963), BUT NO CONSTITUTIONAL CHALLENGE TO THE
STATUTE WAS MADE.  IN HUNTER V. WASHINGTON POST, 102 DAILY WASHINGTON
L. RPTR.  1561 (1974), THE DISTRICT OF COLUMBIA SUPERIOR COURT DENIED
THE DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS BASED UPON
CONSTITUTIONAL GROUNDS IN AN ACTION BROUGHT FOR INVASION OF PRIVACY
RESULTING FROM THE DEFENDANT'S PUBLICATION IDENTIFYING THE PLAINTIFF AS
A RAPE VICTIM AND GIVING HER NAME, AGE, AND ADDRESS. 

/2/ WASSELL WAS EMPLOYED AT THE TIME IN QUESTION AS A NEWS STAFF
REPORTER FOR WSB-TV AND HAD BEEN SO EMPLOYED FOR THE PRIOR NINE YEARS. 
HIS FUNCTION WAS TO INVESTIGATE NEWSWORTHY STORIES AND MAKE TELEVISED
NEWS REPORTS.  HE WAS ASSIGNED THE COVERAGE OF THE TRIAL OF THE YOUNG
MEN ACCUSED OF THE RAPE AND MURDER OF CYNTHIA COHN ON THE MORNING OF
APRIL 10, 1972, THE DAY IT BEGAN, AND HAD NOT BEEN INVOLVED WITH THE
STORY PREVIOUSLY.  HE WAS PRESENT DURING THE ENTIRE HEARING THAT DAY
EXCEPT FOR THE FIRST 30 MINUTES.  APP. 16 - 17. 

/3/ WASSELL HAS DESCRIBED THE WAY IN WHICH HE OBTAINED THE
INFORMATION REPORTED IN THE BROADCAST AS FOLLOWS: 

" THE INFORMATION ON WHICH I PREPARED THE SAID REPORT WAS OBTAINED
FROM SEVERAL SOURCES.  FIRST, BY PERSONALLY ATTENDING AND TAKING NOTES
OF THE SAID TRIAL AND THE SUBSEQUENT TRANSFER OF FOUR OF THE SIX
DEFENDANTS TO THE FULTON COUNTY JAIL, I OBTAINED PERSONAL KNOWLEDGE OF
THE EVENTS THAT TRANSPIRED DURING THE TRIAL OF THIS ACTION AND THE SAID
TRANSFER OF THE DEFENDANTS.  SUCH PERSONAL OBSERVATIONS AND NOTES WERE
THE PRIMARY AND ALMOST EXCLUSIVE SOURCE OF THE INFORMATION UPON WHICH
THE SAID NEWS REPORT WAS BASED.  SECONDLY, DURING A RECESS OF THE SAID
TRIAL, I APPROACHED THE CLERK OF THE COURT, WHO WAS SITTING DIRECTLY IN
FRONT OF THE BENCH, AND REQUESTED TO SEE A COPY OF THE INDICTMENTS.  IN
OPEN COURT, I WAS HANDED THE INDICTMENTS, BOTH THE MURDER AND THE RAPE
INDICTMENTS, ADN WAS ALLOWED TO EXAMINE FULLY THIS DOCUMENT.  AS IS
SHOWN BY THE SAID INDICTMENTS ... THE NAME OF THE SAID CYNTHIA COHN
APPEARS IN CLEAR TYPE.  MOREOVER, NO ATTEMPT WAS MADE BY THE CLERK OR
ANYONE ELSE TO WITHHOLD THE NAME AND INDENTITY OF THE VICTIM FROM ME OR
FROM ANYONE ELSE AND THE SAID INDICTMENTS APPARENTLY WERE AVAILABLE FOR
PUBLIC INSPECTION UPON REQUEST."  ID., AT 17 - 18. 

/4/ THE INDICTMENTS ARE IN PERTINENT PART AS FOLLOWS: 

" THE GRAND JURORS SELECTED, CHOSEN AND SWORN FOR THE COUNTY OF
FULTON .. IN THE NAME AND BEHALF OF THE CITIZENS OF GEORGIA, CHARGE AND
ACCUSE (THE DEFENDANTS) WITH THE OFFENSE OF:--,

        "RAPE "FOR THAT SAID ACCUSED, IN THE COUNTY OF FULTON AND
STATE OF GEORGIA, ON THE 18TH DAY OF AUGUST, 1971 DID HAVE CARNAL
KNOWLEDGE OF THE PERSON OF CYNTHIA LESLIE COHN, A FEMALE, FORCIBLY AND
AGAINST HER WILL ...."  ID., AT 22 - 23. 

"THE GRAND JURORS SELECTED, CHOSEN AND SWORN FOR THE COUNTY OF
FULTON ... IN THE NAME AND BEHALF OF THE CITIZENS OF GEORGIA, CHARGE
AND ACCUSE (THE DEFENDANTS) WITH THE OFFENSE OF:--,

        "MURDER "FOR THAT SAID ACCUSED, IN THE COUNTY OF FULTON AND
STATE OF GEORGIA, ON THE 18TH DAY OF AUGUST, 1971 DID WHILE IN THE
COMMISSION OF THE OFFENSE OF RPAE, A FELONY, UPON THE PERSON OF CYNTHIA
LESLIE COHN, A FEMALE HUMAN BEING, CAUSE HER DEATH BY CAUSING HER TO
SUFFOCATE...."  ID., AT 24 - 25. 

/5/ THE RELEVANT PORTION OF THE TRANSCRIPT OF THE TELEVISED REPORT
READS AS FOLLOWS: 

" SIX YOUTHS WENT ON TRIAL TODAY FOR THE MURDER-RAPE OF A TEENAGED
GIRL. 

" THE SIX SANDY SPRINGS HIGH SCHOOL BOYS WERE CHARGED WITH MURDER
AND RAPE IN THE DEATH OF SEVENTEEN YEAR OLD CYNTHIA COHN FOLLOWING A
DRINKING PARTY LAST AUGUST 18TH. 

" THE TRAGIC DEATH OF THE HIGH SCHOOL GIRL SHOCKED THE ENTIRE SANDY
SPRINGS COMMUNITY.  TODAY THE SIX BOYS HAD THEIR DAY IN COURT."  APP. 
19 - 20. 

/6/ EMINENT DOMAIN PROCEEDINGS ARE THE TYPE THAT MAY INVOLVE AN
INTERLOCUTORY DECISION AS TO A FEDERAL QUESTION WITH ANOTHER FEDERAL
QUESTION TO BE DECIDED LATER.  " FOR IN THOSE CASES THE FEDERAL
CONSTITUTIONAL QUESTION EMBRACES NOT ONLY A TAKING, BUT A TAKING ON
PAYMENT OF JSUT COMPENSATION.  A STATE JUDGMENT IS NOT FINAL UNLESS IT
COVERS BOTH ASPECTS OF THAT INTEGRAL PROBLEM."  NORTH DAKOTA STATE
BOARD OF PHARMACY V. SNYDER'S DRUG STORES, INC., 414 U.S. 156, 163
(1973).  SEE ALSO GRAYS HARBOR CO. V. COATS-FORDNEY CO., 243 U.S. 251,
256 (1917); RADIO STATION WOW, INC. V. JOHNSON, 326 U.S. 120, 127
(1945).     /7/ GILLESPIE V. UNITED STATES STEEL CORP., 379 U.S. 148
(1964), AROSE IN THE FEDERAL COURTS AND INVOLVED THE REQUIREMENT OF 28
U.S.C. 1291 THAT JUDGMENTS OF DISTRICT COURTS BE FINAL IF THEY ARE TO
BE APPEALED TO THE COURTS OF APPEALS.  IN THE COURSE OF DECIDING THAT
THE JUDGMENT OF THE DISTRICT COURT IN THE CASE HAD BEEN FINAL, THE
COURT INDICATED ITS APPROACH TO FINALITY REQUIREMENTS:  AND OUR CASES
LONG HAVE RECOGNIZED THAT WHETHER A RULING IS 'FINAL' WITHIN THE
MEANING OF 1291 IS FREQUENTLY SO CLOSE A QUESTION THAT DECISION OF THAT
ISSUE EITHER WAY CAN BE SUPPORTED WITH EQUALLY FORCEFUL ARGUMENTS, AND
THAT IT IS IMPOSSIBLE TO DEVISE A FORMULA TO RESOLVE ALL MARGINAL CASES
COMING WITHIN WHAT MIGHT WELL BE CALLED THE 'TWILIGHT ZONE' OF
FINALITY.  BECAUSE OF THIS DIFFICULTY THIS COURT HAS HELD THAT THE
REQUIREMENT OF FINALITY IS TO BE GIVEN A 'PRACTICAL RATHER THAN A
TECHNICAL CONSTRUCTION.'  COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP.,
(337 U.S. 541, 546).  SEE ALSO BROWN SHOE CO. V. UNITED STATES, 370
U.S. 294, 306; BRONSON V. RAILROAD CO., 2 BLACK 542, 531; FORGAY V.
CONRAD, 6 HOW.  201, 203.  DICKINSON V. PETROLEUM CONVERSION CORP., 338
U.S. 507, 511, POINTED OUT THAT IN DECIDING THE QUESTION OF FINALITY
THE MOST IMPORTANT COMPETING CONSIDERATIONS ARE 'THE INCONVENIENCE AND
COSTS OF PIECEMEAL REVIEW ON THE ONE HAND AND THE DANGER OF DENYING
JUSTICE BY DELAY ON THE OTHER.'"  379 U.S., AT 152 - 153. 

/8/ OTHER CASES FROM STATE COURTS WHERE THIS COURT'S JURISDICTION
WAS SUSTAINED FOR SIMILAR REASONS INCLUDE:  ORGANIZATION FOR A BETTER
AUSTIN V. KEEFE, 402 U.S. 415, 418 N. (1971); CONSTRUCTION LABORERS V.
CURRY, 371 U.S. 542, 550 - 551 (1963); POPE V. ATLANTIC C.L.R. CO., 345
U.S. 379, 382 (1953); RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69,
73 - 74 (1946).  IN THE RICHFIELD CASE THE COURT SAID WITH RESPECT TO
FINALITY THAT: 

THE DESIGNATION GIVEN THE JUDGMENT BY STATE PRACTICE IS NOT
CONTROLLING.  DEPARTMENT OF BANKING V. PINK, 317 U.S. 264, 268.  THE
QUESTION IS WHETHER IT CAN BE SAID THAT 'THERE IS NOTHING MORE TO BE
DECIDED' (CLARK V. WILLARD, 292 U.S. 112, 118), THAT THERE HAS BEEN 'AN
EFFECTIVE DETERMINATION OF THE LITIGATION.'  MARKET STREET RY. CO. V.
RAILROAD COMMISSION, 324 U.S. 548, 551; SEE RAIDO STATION WOW V.
JOHNSON, 326 U.S. 120, 120 - 124.  THAT QUESTION WILL BE RESOLVED NOT
ONLY BY AN EXAMINATION OF THE ENTIRE RECORD (CLARK V. WILLARD, SUPRA)
BUT, WHERE NECESSARY, BY RESORT TO THE LOCAL LAW TO DETERMINE WHAT
EFFECT THE JUDGMENT HAS UNDER THE STATE RULES OF PRACTICE."  ID., AT
72. 

/9/ IN BRADY, SUPRA, THE MARYLAND COURTS HAD ORDERED A NEW TRIAL IN
A CRIMINAL CASE BUT ON PUNISHMENT ONLY, AND THE PETITIONER ASSERTED
HERE THAT HE WAS ENTITLED TO A NEW TRIAL ON GUILT AS WELL.  WE
ENTERTAINED THE CASE, SAYING THAT THE FEDERAL ISSUE WAS SEPARABLE AND
WOULD NOT BE MOOTED BY THE NEW TRIAL ON PUNISHMENT ORDERED IN THE STATE
COURTS.  373 U.S., AT 85 N. 1. 

/10/ COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541 (1949),
WAS A DIVERSITY ACTION IN THE FEDERAL COURTS IN THE COURSE OF WHICH
THERE AROSE THE QUESTION OF THE VALIDITY OF A STATE STATUTE REQUIRING
PLAINTIFFS IN STOCKHOLDER SUITS TO POST SECURITY FOR COSTS AS A
PREREQUISITE TO BRINGING THE ACTION.  THE DISTRICT COUT HELD THE STATE
LAW INAPPLICABLE, THE COURT OF APPEALS REVERSED, AND THIS COURT, AFTER
GRANTING CERTIORARI, HELD THAT THE ISSUE OF SECURITY FOR COSTS WAS
SEPARABLE FROM AND INDEPENDENT OF THE MERITS AND THAT IF REVIEW WERE TO
BE POSTPONEDUNTIL THE TERMINATION OF THE LITIGATION, "IT WILL BE TOO
LATE EFFECTIVELY TO REVIEW THE PRESENT ORDER, AND THE RIGHTS CONFERRED
BY THE STATUTE, IF IT IS APPLICABLE, WILL HAVE BEEN LOST, PROBABLY
IRREPARABLY."  ID.,A T 546. 

/11/ MEANWHILE HUDSON DISTRIBUTORS V. ELI LILLY, 377 U.S. 386
(1964), ANOTHER CASE OF THIS GENRE, HAD BEEN DECIDED.  THERE A RETAILER
SUED TO INVALIDATE A STATE FAIR TRADE ACT AS INCONSISTENT WITH THE
FEDERAL ANTITRUST LAWS AND NOT SAVED BY A FEDERAL STATUTE AUTHORIZING
STATE FAIR TRADE LEGISLATION UNDER CERTAIN CONDITIONS.  THE DEFENDANT
MANUFACTURER CROSS-PETITIONED FOR ENFORCEMENT OF THE STATE ACT AGAINST
THE PLAINTIFF-RETAILER.  THE TRIAL COURT STRUCK DOWN THE STATUTE, BUT A
STATE APPELLATE COURT REVERSED AND REMANDED FOR TRIAL ON THE CROSS
PETITION.  J THE OHIO SUPREME COURT AFFIRMED THAT DECISION.  RELYING ON
CURRY AND MERCANTILE NATIONAL BANK V. LANGDEAU, 371 U.S. 555 (1963),
THIS COURT FOUND THE STATE COURT JUDGMENT TO BE RIPE FOR REVIEW,
ALTHOUGH THE RETAILER MIGHT PREVAIL AT THE TRIAL.  377 U.S., AT 389 N.
4. 

/12/ THE IMPORT OF THE COURT'S HOLDING IN TORNILLO IS UNDERLINED BY
ITS CITATION OF THE CONCURRING OPINION IN MILLS V. ALABAMA.  THERE, MR.
JUSTICE DOUGLAS, JOINED BY MR. JUSTICE BRENNAN, STATED THAT EVEN IF THE
APPELLANT HAD A DEFENSE AND MIGHT PREVAIL AT TRIAL, JURISDICTION WAS
PROPERLY NOTED IN ORDER TO FORECLOSE UNWARRANTED RESTRICTIONS ON THE
PRESS SHOULD THE STATE COURT'S CONSTITUTIONAL JUDGMENT PROVE TO BE IN
ERROR. 

/13/ MR. JUSTICE REHNQUIST, POST, AT 507 - 508, IS CORRECT IN SAYING
THAT THIS FACTOR INVOLVES CONSIDERATION OF THE MERITS IN DETERMINING
JURISDICTION.  BUT IT DOES SO ONLY TO THE EXTENT OF DETERMINING THAT
THE ISSUE IS SUBSTANTIAL AND ONLY IN THE CONTEXT THAT IF THE STATE
COURT'S FINAL DECISION ON THE FEDERAL ISSUE IS INCORRECT, FEDERAL LAW
FORECLOSES FURTHER PROCEEDINGS IN THE STATE COURT.  THAT THE PETITIONER
WHO PROTESTS AGAINST THE STATE COURT'S DECISION ON THE FEDERAL QUESTION
MIGHT PREVAIL ON THE MERITS ON NONFEDERAL GROUNDS IN THE COURSE OF
FURTHER PROCEEDINGS ANTICIPATED IN THE STATE COURT AND HENCE OBVIATE
LATER REVIEW OF THE FEDERAL ISSUE HERE IS NOT PRECLUSIVE OF OUR
JURISDICTION.  CURRY, LANGDEAU, NORTH DAKOTA STATE BOARD OF PHARMACY,
CALIFORNIA V. STEWART, 384 U.S. 436 (1966), AND MIAMI HERALD PUBLISHING
CO. V. TORNILLO, 418 U.S. 241 (1974), MAKE THIS CLEAR.  IN THOSE CASES,
THE FEDERAL ISSUE HAVING BEEN DECIDED, ARGUABLY WRONGLY, AND BEING
DETERMINATIVE OF THE LITIGATION IF DECIDED THE OTHER WAY, THE FINALITY
RULE WAS SATISFIED. 

THE AUTHOR OF THE DISSENT, A MEMBER OF THE MAJORITY IN TORNILLO,
DOES NOT DISAVOW THAT DECISION.  HE SEEKS ONLY TO DISTINGUISH IT BY
INDICATING THAT THE FIRST AMENDMENT ISSUE AT STAKE THERE WAS MORE
IMPORTANT ANDPRESSING THAN THE ONE HERE.  THIS SEEMS TO EMBRACE THE
THESIS OF THAT CASE AND OF THIS ONE AS FAR AS THE APPROACH TO FINALITY
IS CONCERNED, EVEN THOUGH THE MERITS AND THE AVOIDANCE DOCTRINE ARE TO
SOME EXTENT INVOLVED. 

/14/ IN FINDING THAT WE HAVE APPELLATE JURISDICTION, WE ALSO TAKE
JURISDICTION OVER ANY ASPECTS OF THE CASE WHICH WOULD OTHERWISE FALL
SOLELY WITHIN OUR CERTIORARI JURISDICTION.  SEE FLOURNOY V. WIENER, 321
U.S. 253, 263 (1944); PRUDENTIAL INSURANCE CO. V. CHEEK, 259 U.S. 530,
547 (1922); CF. PALMORE V. UNITED STATES, 411 U.S. 389, 397 N. 6
(1973); MISHKIN V. NEW YORK, 383 U.S. 502, 512 (1966). 

/15/ SEE T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 544 - 562
(1970); KONVITZ, PRIVACY AND THE LAW:  A PHILOSOPHICAL PRELUDE, 31 LAW
& CONTEMP.  PROB.  272 (1966); BLOUSTEIN, PRIVACY AS AN ASPECT OF HUMAN
DIGNITY:  AN ANSWER TO DEAN PROSSER, 39 N.Y.U.L. REV. 962 (1964). 

/16/ OF THE DESIRABILITY--INDEED OF THE NECESSITY--OF SOME SUCH
PROTECTION (OF THE RIGHT OF PRIVACY), THERE CAN, IT IS BELIEVED, BE NO
DOUBT.  THE PRESS IS OVERSTEPPING IN EVERY DIRECTION THE OBVIOUS BOUNDS
OF PROPRIETY AND OF DECENCY.  GOSSIP IS NO LONGER THE RESOURCE OF THE
IDLE AND OF THE VICIOUS, BUT HAS BECOME A TRADE, WHICH IS PURSUED WITH
INDUSTRY AS WELL AS EFFRONTERY.  TO SATISFY A PRURIENT TASTE THE
DETAILS OF SEXUAL RELATIONS ARE SPREAD BROADCAST IN THE COLUMNS OF THE
DAILY PAPERS.  TO OCCUPY THE INDOLENT, COLUMN UPON COLUMN IS FILLED
IWTH IDLE GOSSIP, WHICH CAN ONLY BE PROCURED BY INTRUSION UPON THE
DOMESTIC CIRCLE.  THE INTENSITY AND COMPLEXITY OF LIFE, ATTENDANT UPON
ADVANCING CIVILIZATION, HAVE RENDERED NECESSARY SOME RETREAT FROM THE
WORLD, AND MAN, UNDER THE REFINING INFLUENCE OF CULTURE, HAS BECOME
MORE SENSITIVE OT PUBLICITY, SO THAT SOLITUDE AND PRIVACY HAVE BECOME
MORE ESSENTIAL TO THE INDIVIDUAL; BUT MODERN ENTERPRISE AND INVENTION
HAVE, THROUGH INVASIONS UPON HIS PRIVACY, SUBJECTED HIM TO MENTAL PAIN
AND DISTRESS, FAR GREATER THAN COULD BE INFLICTED BY MERE BODILY
INJURY.  NOR IS THE HARM WROUGHT BY SUCH INVASIONS CONFINED TO THE
SUFFERING OF THOSE WHO MAY BE MADE THE SUBJECTS OF JOURNALISTIC OR
OTHER ENTERPRISE.  IN THIS, AS IN OTHER BRANCHES OF COMMERCE, THE
SUPPLY CREATES THE DEMAND.  EACH CROP OF UNSEEMLY GOSSIP, THUS
HARVESTED, BECOMES THE SEED OF MORE, AND, IN DIRECT PROPORTION TO ITS
CIRCULATION, RESULTS IN A LOWERING OF SOCIAL STANDARDS AND OF
MORALITY.  EVEN GOSSIP APPARENTLY HARMLESS, WHEN WIDELY AND
PERSISTENTLY CIRCULATED, IS POTENT FOR EVIL.  IT BOTH BELITTLES AND
PERVERTS.  IT BELITTLES BY INVERTING THE RELATIVE IMPORTANCE OF THINGS,
THUS, DWARFING THE THOUGHTS AND ASPIRATIONS OF A PEOPLE.  WHEN PERSONAL
GOSSIP ATTAINS THE DIGNITY OF PRINT, AND CROWDS THE SPACE AVAILABLE FOR
AMTTERS OF REAL INTEREST TO THE COMMUNITY, WHAT WONDER THAT THE
IGNORANT AND THOUGHTLESS MISTAKE ITS RELATIVE IMPORTANCE.  EASY OF
COMPREHENSION, APPEALING TO THAT WEAK SIDE OF HUMAN NATURE WHICH IS
NEVER WHOLLY CAST DOWN BY THE MISFORTUNES AND FRAILTIES FO OUR
NEIGHBORS, NO ONE CAN BE SURPRISED THAT IT USURPS THE PLACE OF INTEREST
IN BRAINS CAPABLE OF OTHER THINGS.  TRIVIALITY DESTROYS AT ONCE
ROBUSTNESS OF THOUGHT AND DELICACY OF FEELING.  NO ENTHUSIASM CAN
FLOURISH, NO GENEROUS IMPULSE CAN SURVIVE UNDER ITS BLIGHTING
INFLUENCE." 

/17/ SEE ALSO TIME, INC. V. HILL, 385 U.S. 374, 404 (1967) (OPINION
OF HARLAN, J.); ID., AT 412 - 415 (FORTAS, J., DISSENTING). 

/18/ SEE RESTATEMENT (SECOND) OF TORTS 582 (TENT.  DRAFT NO. 20, APR.
25, 1974); W. PROSSER, LAW OF TORTS 116 (4TH ED. 1971).  UNDER THE
COMMON LAW, TRUTH WAS NOT A COMPLETE DEFENSE TO PROSECUTIONS FOR
CRIMINAL LIBEL, ALTHOUGH IT WAS IN CIVIL ACTIONS.  SEVERAL
JURISDICTIONS IN THIS COUNTRY HAVE PROVIDED, HOWEVER, THAT THE DEFENSE
OF TRUTH IN CIVIL ACTIONS REQUIRES A SHOWING THAT THE PUBLICATION WAS
MADE FOR GOOD MOTIVES OR FOR JUSTIFIABLE ENDS.  SEE ID., AT 796 - 797. 

/19/ IN ANOTHER "FLASE LIGHT" INVASION OF PRIVACY CASE BEFORE US
THIS TERM, CANTRELL V. FOREST CITY PUBLISHING CO., 419 U.S. 245, 250 -
251 (1974), WE OBSERVED THAT WE HAD, IN THAT CASE, "NO OCCASION TO
CONSIDER WHETHER A STATE MAY CONSTITUTIONALLY APPLY A MORE RELAXED
STANDARD OF LIABILITY FOR A PUBLISHER OR BROADCASTER OF FALSE
STATEMENTS INJURIOUS TO A PRIVATE INDIVIDUAL UNDER A FALSE-LIGHT THEORY
OF INVASION OF PRIVACY, OR WHETHER THE CONSTITUTIONAL STANDARD
ANNOUNCED IN TIME, INC. V. HILL APPLIES TO ALL FALSE-LIGHT CASES.  CF.
GERTZ V. ROBERT WELCH, INC., 418 U.S. 323." 

/20/ WARREN & BRANDEIS, THE RIGHT TO PRIVACY, 4 HARV. L. REV. 193,
216 - 217 (1890). 

/21/ RESTATEMENT OF TORTS 867 (1939). 

/22/ RESTATEMENT (SECOND) OF TORTS 652 A-652 E (TENT.  DRAFT NO. 13,
APR. 27, 1967).  THE FOUR BRANCHES ARE UNREASONABLE INTRUSION UPON THE
SECLUSION OF ANOTHER (652 B), APPROPRIATION OF THE OTHER'S NAME OR
LIKENESS 652 C), UNREASONABLE PUBLICITY GIVEN TO THE OTHER'S PRIVATE
LIFE (652 D), AND PUBLICITY WHICH UNREASONABLY PLACES THE OTHER IN A
FALSE LIGHT BEFORE THE PUBLIC (652 E).  SEE 652 A. THE SAME
CATEGORIZATION IS SUGGESTED IN W. PROSSER, LAW OF TORTS 117 (4TH ED.
1971); PROSSER, PRIVACY, 48 CALIF. L. REV. 383 (1960). 

/23/ RESTATEMENT (SECOND) OF TORTS, SUPRA, N. 22, 652 D, COMMENT C,
AT 114. 

/24/ RESTATEMENT (SECOND) OF TORTS, SUPRA, N. 22, 652 B, COMMENT C.,
AT 104. 

/25/ SEE ALSO W. PROSSER, LAW OF TORTS 810 - 811 (4TH ED. 1971). 
FOR DECISIONS EMPHASIZING AS A DEFENSE TO ACTIONS CLAIMING INVASION OF
PRIVACY THE FACT THAT THE INFORMATION IN QUESTION WAS DERIVED FROM
OFFICIAL RECORDS AVAILABLE TO THE PUBLIC, SEE HUBBARD V. JOURNAL
PUBLISHING CO., 69 N.M. 473, 368 P. 2D 147 (1962) (INFORMATION
REGARDING SEXUAL ASSAULT BY A BOY UPON HIS YOUNGER SISTER DERIVED FROM
OFFICIAL JUVENILE-COURT RECORDS OPEN TO PUBLIC INSPECTION); EDMINSTON
V. TIME, INC., 257 F. SUPP. 22 (SDNY 1966) (FAIR AND TRUE REPORT OF
COURT OPINION); BELL V. COURIER-FOURNAL & LOUISVILLE TIMES CO., 402
S.W. 2D 84 (KY. 1966); LAMONT V. COMMISSIONER OF MOTOR VEHICLES, 269 F.
SUPP. 880 (SDNY), AFF'D, 386 F. 2D 449 (CA2 1967), CERT. DENIED, 391
U.S. 915 (1968); FRITH V. ASSOCIATED PRESS, 176 F. SUPP. 671 (EDSC
1959); MEETZE V. ASSOCIATED PRESS, 230 S.C. 330, 95 S.E. 2D 606 (1956);
THOMPSON V. CURTIS PUBLISHING CO., 193 F. 2D 953 (CA3 1952); GARNER V.
TRIANGLE PUBLICATIONS, 97 F. SUPP. 546 (SDNY 1951); BERG V. MINNEAPOLIS
STAR & TRIBUNE CO., 79 F. SUPP. 957 (MINN. 1948). 

/26/ WE MEAN TO IMPLY NOTHING ABOUT ANY CONSTITUTIONAL QUESTIONS
WHICH MIGHT ARISE FROM A STATE POLICY NOT ALLOWING ACCESS BY THE PUBLIC
AND PRESS TO VARIOUS KINDS OF OFFICIAL RECORDS, SUCH AS RECORDS OF
JUVENILE COURT PROCEEDINGS. 

/27/ APPELLANTS HAVE CONTENDED THAT WHETHER THEY DERIVED THE
INFORMATION IN QUESTION FROM PUBLIC RECORDS OR INSTEAD THROUGH THEIR
OWN INVESTIGATION, THE FIRST AND FOURTEENTH AMENDMENTS BAR AND
SANCTIONS FROM BEING IMPOSED BY THE STATE BECAUSE OF THE PUBLICATION. 
BECAUSE APPELLANTS HAVE PREVAILED ON MORE LIMITED GROUNDS, WE NEED NOT
ADDRESS THIS BROADER CHALLENGE TO THE VALIDITY OF 26 - 9901 AND OF
GEORGIA'S RIGHT OF ACTION FOR PUBLIC DISCLOSURE. 

MR. JUSTICE BURGER CONCURS IN THE JUDGMENT. 

MR. JUSTICE POWELL, CONCURRING. 

I JOIN IN THE COURT'S OPINION, AS I AGREE WITH THE HOLDING AND MOST
OF ITS SUPPORTING RATIONALE.  /1/ MY UNDERSTANDING OF SOME OF OUR
DECISIONS CONCERNING THE LAW OF DEFAMATION, HOWEVER, DIFFERS FROM THAT
EXPRESSED IN TODAY'S OPINION.  ACCORDINGLY, I THINK IT APPROPRIATE TO
STATE SEPARATELY MY VIEWS. 

I AM IN ENTIRE ACCORD WITH THE COURT'S DETERMINATION THAT THE FIRST
AMENDMENT PROSCRIBES IMPOSITION OF CIVIL LIABILITY IN A PRIVACY ACTION
PREDICATED ON THE TRUTHFUL PUBLICATION OF MATTERS CONTAINED IN OPEN
JUDICIAL RECORDS.  BUT MY IMPRESSION OF THE ROLE OF TRUTH IN DEFAMATION
ACTIONS BROUGHT BY PRIVATE CITIZENS DIFFERS FROM THE COURT'S.  THE
COURT IDENTIFIES AS AN "OPEN" QUESTION THE ISSUE OF "WHETHER THE FIRST
AND FOURTEENTH AMENDMENTS REQUIRE TAHT TRUTH BE RECONGNIZED AS A
DEFENSE IN A DEFEAMATION ACTION BROUGTH BY A PRIVATE PERSON AS
DISTINGUISHED FROM A PUBLIC OFFICIAL OR A PUBLIC FIGURE."  ANTE, AT
490.  IN MY VIEW, OUR RECENT DECISION IN GERTZ V. ROBERT WELCH, INC.,
418 U.S. 323 (1974), LARGELY RESOLVES THAT ISSUE.     GERTZ IS THE MOST
RECENT OF A LINE OF CASES IN WHICH THIS COURT HAS SOUGHT TO RESOLVE THE
CONFLICT BETWEEN THE STATE'S DESIRE TO PROTECT THE REPUTATIONAL
INTERESTS OF ITS CITIZENS AND THE COMPETING COMMANDS OF THE FIRST
AMENDMENT.  IN EACH OF THE MANY DEFAMATION ACTIONS CONSIDERED IN THE 10
YEARS FOLLOWING NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964),
STATE LAW PROVIDED THAT TRUTH WAS A DEFENSE TO THE ACTION.  /2/ TODAY'S
OPINION REITERATES WHAT WE PREVIOUSLY HAVE RECOGNIZED, SEE GARRISON V.
LOUISIANA, 379 U.S. 64, 74 (1964)--THAT THE DEFENSE OF TRUTH IS
CONSTITUTIONALLY REQUIRED WHEN THE SUBJECT OF THE ALLEGED DEFAMATION IS
A PUBLIC FIGURE.  ANTE, AT 489 - 490.  INDEED, EVEN IF NOT EXPLICITLY
RECOGNIZED, THIS DETERMINATION IS IMPLICIT IN THE COURT'S ARTICULATION
OF A STANDARD OF RECOVERY THAT RESTS ON KNOWING OR RECKLESS DISREGARD
OF THE TRUTH.  I THINK THAT THE CONSTITUTIONAL NECESSITY OF RECOGNIZING
A DEFENSE OF TRUTH IS EQUALLY IMPLICIT IN OUR STATEMENT OF THE
PERMISSIBLE STANDARD OF LIABILITY FOR THE PUBLICATION OF BROADCAST OF
DEFAMATORY STATEMENTS WHOSE SUBSTANCE MAKES APPARENT THE SUBSANTIAL
DANGER OF INJURY TO THE REPUTATION OF A PRIVATE CITIZEN. 

IN GERTZ WE HELD THAT THE FIRST AMENDMENT PROHIBITS THE STATES FROM
IMPOSING STRICT LIABILITY FOR MEDIA PUBLICATION OF ALLEGEDLY FALSE
STATEMENTS THAT ARE CLAIMED TO DEFAME A PRIVATE INDIVIDUAL.  WHILE
PROVIDING THE REQUIRED "BREATHING SPACE" FOR FIRST AMENDMENT FREEDOMS,
THE GERTZ STANDARD AFFORDS THE STATES SUBSTANTIAL LATITUDE IN
COMPENSATING PRIVATE INDIVIDUALS FOR WRONGFUL INJURY TO REPUTATION. 
/3/ "(SO LONG AS THEY DO NOT IMPOSE LIABILITY WITHOUT FAULT, THE STATES
MAY DEFINE FOR THEMSELVES THE APPROPRIATE STANDARD OF LIABILITY FOR A
PUBLISHER OR BROADCASTER OF DEFAMATORY FALSEHOOD INJURIOUS TO A PRIVATE
INDIVIDUAL."  418 U.S., AT 347.  THE REQUIREMENT THAT THE STATE
STANDARD OF LIABILITY BE RELATED TO THE DEFENDANT'S FAILURE TO AVOID
PUBLICATION OF "DEFAMATORY FALSEHOOD" LIMITS THE GROUNDS ON WHICH A
NORMAL ACTION FOR DEFAMATION CAN BE BROUGHT.  IT IS FAIR TO SAY THAT IF
THE STATEMENTS ARE TRUE, THE STANDARD CONTEMPLATED BY GERTZ CANNOT BE
SATISFIED. 

IN GERTZ WE RECOGNIZED THE NEED TO ESTABLISH A BROAD RULE OF GENERAL
APPLICABILITY, ACKNOWLEDGING THAT SUCH AN APPROACH NECESSARILY REQUIRES
TREATING ALIKE CASES THAT INVOLVE DIFFERENCES AS WELL AS SIMILARITIES. 
ID., AT 343 - 344.  OF COURSE, NO RULE OF LAW IS INFINITELY ELASTIC. 
IN SOME INSTANCES STATE ACTIONS THAT ARE DENOMINATED ACTIONS IN
DEFAMATION MAY IN FACT SEEK TO PROTECT CITIZENS FROM INJURIES THAT ARE
QUITE DIFFERENT FROM THE WRONGFUL DAMAGE TO REPUTATION FLOWING FROM
FALSE STATEMENTS OF FACT.  IN SUCH CASES, THE CONSTITUTION MAY PERMIT A
DIFFERENT BALANCE TO BE STRUCK.  AND, AS TODAY'S OPINION PROPERLY
RECOGNIZES, CAUSES OF ACTION GROUNDED IN A STATE'S DESIRE TO PROTECT
PRIVACY GENERALLY IMPLICATE INTERESTS THAT ARE DISTINCT FROM THOSE
PROTECTED BY DEFAMATION ACTIONS.  BUT IN CASES IN WHICH THE INTEREST
SOUGHT TO BE PROTECTED ARE SIMILAR TO THOSE CONSIDERED IN GERTZ, I VIEW
THAT OPINION AS REQUIRING THAT THE TRUTH BE RECOGNIZED AS A COMPLETE
DEFENSE. 

/1/ AT THE OUTSET, I NOTE MY AGREEMENT THAT MIAMI HEARLD PUBLISHING
CO. V. TORNILLO, 418 U.S. 241 (1974), SUPPORTS THE CONCLUSION THAT THE
ISSUE PRESENTED IN THIS APPEAL IS FINAL FOR REVIEW.  28 U.S.C. 1257. 

/2/ IN TIME, INC. V. HILL, 385 U.S. 374 (1967), THE COURT CONSIDERED
A STATE CAUSE OF ACTION THAT AFFORDED PROTECTION AGAINST UNWANTED
PUBLICITY RATHER TAHN DAMAGE TO REPUTATION THROUGH THE PUBLICATION OF
FALSE STATEMENTS OF FACT.  IN SUCH ACTIONS, HOWEVER, THE STATE ALSO
RECOGNIZED THAT TRUTH WAS AN ABSOLUTE DEFENSE AGAINST LIABILITY FOR
PUBLICATION OF REPORTS CONCERNING NEWSWORTHY PEOPLE OR EVENTS.  ID., AT
383.  THE COURT'S ABANDONMENT OF THE "MATTER OF GENERAL OR PUBLIC
INTEREST" STANDARD AS THE DETERMINATIVE FACTOR FOR DECIDING WHETHER TO
APPLY THE NEW YORK TIMES MALICE STANDARD TO DEFAMATION LITIGATION
BROUGHT BY PRIVATE INDIVIDUALS, GERTZ V. ROBERT WELCH, INC., 403 U.S.
323, 346 (1974); SEE ALSO ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29,
79 (1971) (MARSHALL, J., DISSENTING), CALLS INTO QUESTION THE
CONCEPTUAL BASIS OF TIME, INC. V. HILL.  IN NEITHER GERTZ NOR OUR MORE
RECENT DECISION IN CANTRELL V. FOREST CITY PUBLISHING CO., 419 U.S. 245
(1974), HOWEVER, HAVE WE BEEN CALLED UPON TO DETERMINE WHETHER A STATE
MAY CONSTITUTIONALLY APPLY A MORE RELAXED STANDARD OF LIABILITY UNDER A
FLASE-LIGHT THEORY OF INVASION OF PRIVACY.  SEE ID.,A T 250 - 251;
GERTZ, SUPRA, AT 348; ANTE, AT 490 N. 19. 

/3/ OUR RECENT OPINIONS DEALING WITH FIRST AMENDMENT LIMITATIONS ON
STATE DEFAMATION ACTIONS ALL CENTER AROUND THE COMMON PREMISE THAT
WHILE THE CONSTITUTION REQUIRES TAHT FALSE IDEAS BE CORRECTED ONLY BY
THE COMPETITIVE IMPACT OF OTHER IDEAS, THE FIRST AMENDMENT AFFORDS NO
CONSTITUTIONAL PROTECTION FOR FALSE STATEMENTS OF FACT.  SEE GERTZ,
SUPRA, AT 339 - 340.  BEGINNING WITH THIS COMMON ASSUMPTION, THE
DECISIONS OF THE COURT HAVE UNDERTAKEN TO IDENTIFY A STANDARD OF CARE
WITH RESPECT TO THE TRUTH OF THEPUBLISHED FACTS THAT WILL AFFORD THE
REQUIRED "BREATHING SPACE" FOR FIRST AMENDMENT VALUES. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE JUDGMENT. 

I AGREE THAT THE STATE JUDGMENT IS "FINAL," AND I ALSO AGREE IN THE
REVERSAL OF THE GEORGIA COURT.  /1/ ON THE MERITS, THE CASE FOR ME IS
ON ALL FOURS WITH NEW JERSEY STATE LOTTERY COMM'N V. UNITED STATES, 491
F. 2D 219 (CA3 1974), VACATED AND REMANDED, ANTE, P. 371.  FOR THE
REASONS I STATED IN MY DISSENT FROM OUR DISPOSITION OF THAT CASE, THERE
IS NO POWER ON THE PART OF GOVERNMENT TO SUPRESS OR PENALIZE THE
PUBLICATION OF "NEWS OF THE DAY." 

/1/ WHILE I JOIN IN THE NARROW RESULT REACHED BY THE COURT, I WRITE
SEPARATELY TO EMPHASIZE THAT I WOULD GROUND THAT RESULT UPON A FAR
BROADER PROPOSITION, NAMELY, THAT THE FIRST AMENDMENT, MADE APPLICABLE
TO THE STATES THROUGH THE FOURTEENTH, PROHIBITS THE USE OF STATE LAW
"TO IMPOSE DAMAGES FOR MERELY DISCUSSING PUBLIC AFFAIRS ...."  NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254, 295 (1964) (BLACK, J.,
CONCURRING).  SEE ALSO CANTRELL V. FOREST CITY PUBLISHING CO., 419 U.S.
245, 254 (1974) (DOUGLAS, J., DISSENTING); GERTZ V. ROBERT WELCH, INC.
V. HILL, 385 U.S. 374, 398 (1967) (BLACK, J., DISSENTING); TIME, INC.
V. HILL, 385 U.S. 374, 398 (1967) (BLACK, J., CONCURRING); ID., AT 401
(DOUGLAS, J., CONCURRING); GARRISON V. LOUISIANA, 379 U.S. 64, 80
(1964) (DOUGLAS, J., CONCURRING).  IN THIS CONTEXT, OF COURSE, "PUBLIC
AFFAIRS" MUST BE BROADLY CONSTRUED--INDEED, THE TERM MAY BE BE SAID TO
EMBRACE "ANY MATTER OF SUFFICIENT GENERAL INTEREST TO PROMPT MEDIA
COVERAGE...."  GERTZ V. ROBERT WELCH, INC., SUPRA, AT 357 N. 6
(DOUGLAS, J., DISSENTING).  BY ITS NOW-FAMILIAR PROCESS OF BALANCING
AND ACCOMMODATING FIRST AMENDMENT FREEDOMS WITH STATE OR INDIVIDUAL
INTERESTS, THE COURT RAISES A SPECTER OF LIBILITY WHICH MUST INEVITABLY
INDUCE SELF-CENSORSHIP BY THE MEDIA, THEREBY INHIBITING THE ROUGH-AND
TUMBLE-DISCOURSE WHICH THE FIRST AMENDMENT SO CLEARLY PROTECTS. 

MR. JUSTICE REHNQUIST, DISSENTING. 

BECAUSE IAM OF THE OPINION THAT THE DECISION WHICH IS THE SUBJECT OF
THIS APPEAL IS NOT A "FINAL" JUDGMENT OR DECREE, AS THAT TERM IS USED
IN 28 U.S.C. 1257, I WOULD DISMISS THIS APPEAL FOR WANT OF
JURISDICITON. 

RADIO STATION WOW, INC. V. JOHNSON, 326 U.S. 120 (1945), ESTABLISHED
THAT IN A "VERY FEW" CIRCUMSTANCES REVIEW OF STATE COURT DECISIONS
COULD BE HD IN THIS COURT EVEN THOUGH SOMETHING "FURTHER REMAINED) TO
BE DETERMINED BY A STATE COURT."  ID., AT 124.  OVER THE YEARS,
HOWEVER, AND DESPITE VIGOROUS PROTEST BY MR. JUSTICE HARLAN, /1/  THIS
COURT HAS STEADILY DISCOVERED NEW EXCEPTIONS TO THE FINALITY
REQUIREMENT, SUCH THAT THEY CAN HARDLY ANY LONGER BE DESCRIBED AS "VERY
FEW."  WHATEVER MAY BE THE UNEXPRESSED REASONS FOR THIS PROCESS OF
EXPANSION, SEE, E.G., HUDSON DISTRIBUTORS V. ELI LILLY, 377 U.S. 386,
401 (1964) (HARLAN, J., DISSENTING), IT HAS FREQUENTLY BEEN THE SUBJECT
OF NO MORE FORMAL AN EXPRESS EXPLANATION THAN CURSORY CITATIONS TO
PRECEDING CASES IN THE LINE.  ESPECIALLY IS THIS TRUE OF CASES IN WHICH
THE COURT, S IT DOES TODAY, RELIES ON CONSTRUCTION LABORERS V. CURRY,
371 U.S. 542 (1963).  /2/  ALTHOUGH THE COURT'S OPINION TODAY DOES
ACCORD DETAILED CONSIDERATION TO THIS PROBLEM, I DO NOT BELIEVE THAT
THE REASONS IT EXPRESSES CAN SUPPORT ITS RESULT. 

        I 

THE COURT HAS TAKEN WHAT IT TERMS A "PRAGMATIC" APPROACH TO THE
FINALITY PROBLEM PRESENTED IN THIS CASE.  IN SO DOING, IT HAS RELIED
HEAVILY ON GILLESPIE V. UNITED STATES STEEL CORP., 379 U.S. 148
(1964).  AS THE COURT ADKNOWLEDGES, ANTE, AT 478 N. 7, GILLESPIE
INVOLVED 28 U.S.C. 1291, WHICH RESTRICTS THE APPELLATE JURISDICTION OF
THE FEDERAL COURTS OF APPEALS TO "FINAL DECISIONS OF THE DISTRICT
COURTS."  ALTHOUGH ACKNOWLEDGING THIS DISTINCTION, THE COURT ACCORDS IT
NO IMPORTANCE AND ADOPTS GILLESPIE'S APPROACH WITHOUT ANY CONSIDERATION
OF WHETHER THE FINALITY REQUIREMENT FOR THIS COURT'S JURISDICTION OVER
A "JUDGMENT OR DECREE" OF A STATE COURT IS GROUNDED ON MORE SERIOUS
CONCERNS THAN IS THE LIMITATION OF COURT OF APPEALS JURISDICITON TO
FINAL "DECISIONS" OF THE DISTRICT COURTS.  /3/ I BELIEVE THAT THE
UNDERLYING CONCERNS ARE DIFFERENT, AND THAT THE DIFFERENCE COUNSELS A
MORE RESTRICTIVE APPROACH WHEN 1257 FINALITY IS AT ISSUE 

ACCORDING TO GILLESPIE, THE FINALITY REQUIREMENT IS IMPOSED AS A
MATTER MINIMIZING "THE INCOMVEIENCE AND COSTS OF PIECEMEAL REVIEW." 
THIS PROPOSITION IS UNDOUBTEDLY SOUND SO LONG AS ONE IS CONSIDERING THE
ADMINISTRATION OF THE FEDERAL COURT SYSTEM.  WERE JUDICIAL EFFICIENCY
THE ONLY INTEREST AT STAKE THERE WOULD BE LESS INCLINATION TO CHALLENGE
THE COURT'S RESOLUTION IN THIS CASE, ALTHOUGH, AS DISCUSSED BELOW, I
HAVE SERIOUS RESERVATIONS THAT THE STANDARDS THE COURT HAS FORMULATED
ARE EFFECTIVE FOR ACHIEVING EVEN THIS SINGLE GOAL.  THE CASE BEFORE US,
HOWEVER, IS AN APPEAL FROM A STATE COURT, AND THIS FACT INTRODUCES
ADDITIONAL INTERESTS WHICHMUST BE ACCOMMODATED IN FASHIONING ANY
EXCEPTION TO THE LITERAL APPLICATION OF THE FINALITY REQUIREMENT.  I
CONSIDER 1257 FINALITY TO BE BUT ONE OF A NUMBER OF CONGRESSIONAL
PROVISIONS REFLECTING CONCERN THAT UNCONTROLLED FEDERAL JUDICIAL
INTERFERENCE WITH STATE ADMINISTRATIVE AND JUDICIAL FUNCITONS WOULD
HAVE UNTOWARD CONSEQUENCES FOR OUR FEDERAL SYSTEM.  /4/ THIS IS BY NO
MEANS A NOVEL VIEW OF THE 1257 FINALITY REQUIREMENT.  IN RADIO STATION
WOW, INC. V. JOHNSON, 326 U.S., AT 124, MR. JUSTICE FRANKFURTER'S
OPINION FOR THE COURT EXPLAINED THE FINALITY REQUIREMENT AS FOLLOWS 

" THIS REQUIREMENT HAS THE SUPPORT OF CONSIDERATIONS GENERALLY
APPLICABLE TO GOOD JUDICIAL ADMINISTRATION.  IT AVOIDS THE MISCHIEF OF
ECONOMIC WASTE AND OF DELAYED JUSTICE.  ONLY IN VERY FEW SITUATIONS,
WHERE INTERMEDIATE RULINGS MAY CARRY SERIOUS PUBLIC CONSEQUENCES, HAS
THERE BEEN A DEPARTURE FROM THIS REQUIREMENT OF FINALITY FOR FEDERAL
APPELLATE JURISDICTION.  THIS PREREQUISITE TO REVIEW DERIVES ADDED
FORCE WHEN THE JURISDICITON OF THIS COURT IS INVOKED TO UPSET THE
DECISION OF A STATE COURT.  HERE WE ARE IN THE REALM OF POTENTIAL
CONFLICT BETWEEN THE COURTS OF TWO DIFFERENT GOVERNMENTS.  AND SO, EVER
SINCE 1789, CONGRESS HAS GRANTED THIS COURT THE POWER TO INTERVENE IN
STATE LITIGATION ONLY AFTER 'THE HIGHEST COURT OF A STATE IN WHICH A
DECISION IN THE SUIT COULD BE HAD' HAS RENDERED A 'FINAL JUDGMENT OR
DECREE.'  237 OF THE JUDICIAL CODE, 28 U.S.C. 344 (A).  THIS
REQUIREMENT IS NOT ONE OF THOSE TECHNICALITIES TO BE EASILY SCORNED. 
IT IS AN IMPORTANT FACTOR IN THE SMOOTH WORKING OF OUR FEDERAL
SYSTEM."  (EMPHASIS ADDED.)  IN REPUBLIC GAS CO. V. OKLAHOMA, 334 U.S.
62, 67 (1948), MR. JUSTICE FRANKFURTER, SPEAKING FOR THE COURT, AGAIN
EXPRESSED VIEW:

  THIS PREREQUISITE FOR THE EXERCISE OF THE APPELLATE POWERS OF
THIS COURT IS ESPECIALLY

  PERTINENT WHEN A CONSTITUTIONAL BARRIER IS ASSERTED AGAINST A
STATE COURT'S DECISION ON

  MATTERS PECULIARLY OF LOCAL CONCERN.  CLOSE OBSERVANCE OF THIS
LIMITATION UPON THE COURT IS

  NOT REGARD FOR A STRANGLING TECHNICALITY.  HISTORY BEARS AMPLE
TESTIMONY THAT IT IS AN

  IMPORTANT FACTOR IN SECURING HARMONIOUS STATE-FEDERAL
RELATIONS." 

THAT COMITY AND FEDERALISM ARE SIGNIFICANT ELEMENTS OF 1257 FINALITY
HAS BEEN RECOGNIZED BY OTHER MEMBERS OF THE COURT AS WELL, PERHAPS MOST
NOTABLY BY MR. JUSTICE HARLAN.  SEE, E.G., HUDSON DISTRIBUTORS V. ELI
LILLY, 377 U.S., AT 397 - 398 (HARLAN, J., DISSENTING); MERCANTILE
NATIONAL BANK V. LANGDEAU, 371 U.S. 555, 572 (1963) (HARLAN, J.,
DISSENTING).  IN THE LATTER DISSENT, HE ARGUED THAT ONE BASIS OF THE
FINALITY RULE WAS THAT IT FORECLOSED "THIS COURT FROM PASSING ON
CONSTITUTIONAL ISSUES THAT MAY BE DISSIPATED BY THE FINAL OUTCOME OF A
CASE, THUS HELPING TO KEEP TO A MINIMUM UNDESIRABLE FEDERAL-STATE
CONFLICTS."  ONE NEED CAST NO DOUBT ON THE COURT'S DECISION IN SUCH
CASES AS LANGDEAU TO RECOGNIZE THAT MR. JUSTICE HARLAN WAS FOCUSING ON
A CONSIDERATION WHICH SHOULD BE OF SIGNIFICANCE IN THE COURT'S
DISPOSITION OF THIS CASE. 

HARMONIOUS STATE-FEDERAL RELATIONS" ARE NO LESS IMPORTANT TODAY THAN
WHEN MR. JUSTICE FRANKFURTER PENNED RADIO STATION WOW AND REBUBLIC GAS
CO. INDEED, WE HAVE IN RECENT YEARS EMPHASIZED AND RE-EMPHASIZED THE
IMPORTANCE OF COMITY AND FEDERALISM IN DEALING WIHT A RELATED PROBLEM,
THAT OF DISTRICT COURT INTERFERENCE WITH ONGOING STATE JUDICIAL
PROCEEDINGS.  SEE YOUNGER V. HARRIS, 401 U.S. 37 (1971); SAMUELS V.
MACKELL, 401 U.S. 66 (1971).  BECAUSE THESE CONCERNS ARE IMPORTANT, AND
BECAUSE THEY PROVIDE "ADDED FORCE" TO 1257'S FINALITY REQUIREMENT, I
BELIEVE THAT THE COURT HAS ERRED BY SIMPLY IMPORTING THE APPROACH OF
CASES IN WHICH THE ONLY CONCERN IS EFFICIENT JUDICIAL ADMINISTRATION. 
      II 

BUT QUITE APART FORM THE CONSIDERATIONS OF FEDERALISM WHICH COUNSEL
AGAINST AN EXPANSIVE READING OF OUR DURISDICTION UNDER 1257, THE
COURT'S HOLDING TODAY ENUNCIATES A VIRTUALLY FORMLESS EXCEPTION TO THE
FINALITY REQUIREMENT, ONE WHICH DIFFERS IN KIND FROM THOSE PREVIOUSLY
CARVED OUT.  BY CONTRAST, CONSTRUCTION LABORERS V. CURRY, SUPRA, AND
MERCANTILE NATIONAL BANK V. LANGDEAU, SUPRA, ARE BASED ON THE
UNDERSTANDABLE PRINCIPLE THAT WHERE THE PROPER FORUM FOR TRYING THE
ISSUE JOINED IN THE STATE COURTS DEPENDS ON THE RESOLUTION OF THE
FEDERAL QUESTION RAISED ON APPEAL, SOUND JUDICIAL ADMINISTRATION
REQUIRES THAT SUCH A QUESTION BE DECIDED BY THIS COURT, IF IT IS TO BE
DECIDED AT ALL, SOONER RATHER THAN LATER IN THE COURSE OF THE
LITIGATION.  ORGANIZATION FOR A BETTER AUSTIN V. KEEFE, 402 U.S. 415
(1971), AND MILLS V. ALABAMA, 384 U.S. 214 (1966), REST ON THE PREMISE
THAT WHERE AS A PRACTICAL MATTER THE STATE LITIGATION HAS BEEN
CONCLUDED BY THE DECISION OF THE STATE'S HIGHEST COURT, THE FACT THAT
IN TERMS OF STATE PROCEDURE TH RULING IS INTERLOCUTORY SHOULD NOT BAR A
DETERMINATION BY THIS COURT OF THE MERITS OF THE FEDERAL QUESTION. 

STILL OTHER EXCEPTIONS, AS NOTED IN THE COURT'S OPINION, HAVE BEEN
MADE WHERE THE FEDERAL QUESTION DECIDED BY THE HIGHEST COURT OF THE
STATE IS BOUND TO SURVIVE AND BE PRESENTED FOR DECISION HERE REGARDLESS
OF THE OUTCOME OF FUTURE STATE COURT PROCEEDINGS, RADIO STATION WOW,
SUPRA; BRADY V. MARYLAND, 373 U.S. 83 (1963), AND FOR THE SITUATION IN
WHICH LATER REVIEW OF THE FEDERAL ISSUE CANNOT BE HAD, WHATEVER THE
ULTIMATE OUTCOME OF THE SUBSEQUENT PROCEEDINGS DIRECTED BY THE HIGHEST
COURT OF THE STATE, CALIFORNIA V. STEWART, 384 U.S. 436 (1966); NORTH
DAKOTA STATE BOARD OF PHARMACY V. SNYDER'S DRUG STORES, INC., 414 U.S.
156 (1973).  WHILE THE TOTALITY OF THESE EXCEPTIONS CERTAINLY INDICATES
THAT THE COURT HAS BEEN WILLING TO IMPART TO THE LANGUAGE "FINAL
JUDGMENT OR DECREE" A GREAT DEAL OF FLEXIBILITY, EACH OF THEM IS
ARGUABLY CONSISTENT WITH THE INTENT OF CONGRESS IN ENACTING 1257, IF
NOT WITH THE LANGUAGE IT USED, AND EACH OF THEM IS RELATIVELY WORKABLE
IN PRACTICE. 

TO THOSE ESTABLISHED EXCEPTIONS IS NOW ADDED ONE SO FORMLESS THAT IT
CANNOT BE PARAPHRASED, BUT INSTEAD MUST BE QUOTED:

  GIVEN THESE FACTORS--THAT THE LITIGATION COULD BE TERMMINATED BY
OUR DECISION ON THE MERITS

  AND THAT A FAILURE TO DECIDE THE QUESTION NOW WILL LEAVE THE
PRESS IN GEORGIA OPERATING IN THE

  SHADOW OF THE CIVIL AND CRIMINAL SANCTIONS OF A RULE OF LAW AND A
STATUTE THE

  CONSTITUTIONALITY OF WHICH IS IN SERIOUS DOUBT--WE FIND THAT
REACHING THE MERITS IS CONSISTENT

  WITH THE PRAGMATIC APPROACH THAT WE HAVE FOLLOWED IN THE PAST IN
DETERMINING FINALITY."  ANTE,

  AT 486. 

THERE ARE A NUMBER OF DIFFICULTIES WITH THIS TEST.  ONE OF THEM IS
THE COURT'S WILLINGNESS TO LOOK TO THE MERITS.  IT IS NOT CLEAR FOM THE
COURT'S OPINION, HOWEVER, EXCATLY HOW GREAT A LOOK AT THE MERITS WE ARE
TO TAKE.  ON THE ONE HAND, THE COURT EMPHASIZES THAT IF WE REVERSE THE
SUPREME COURT OF GEORGIA THE LITIGATION WILL END, ANTE, AT 485 - 486,
AND IT REFERS TO CASES IN WHICH THE FEDERAL ISSUE HAS BEEN DECIDED
"ARGUABLY WRONGLY."  ANTE, AT 486 N. 13.  ON THE OTHER HAND, IT CLAIMS
TO LOOK TO THE MERITS "ONLY TO THE EXTENT OF DETERMINING THAT THE ISSUE
IS SUBSTANTIAL."  IBID.  IF THE LATTER IS ALL THE COURT MEANS, THEN THE
INQUIRY IS NO MORE EXTENSIVE THAN IS INVOLVED WHEN WE DETERMINE WHETHER
A CASE IS APPROPRIATE FOR PLENARY CONSIDERATION; BUT IF NO MORE IS
MEANT, OUR DECISION IS JUST AS LIKELY TO BE A COSTLY INTERMEDIATE STEP
IN THE LITIGATIONAS IT IS TO BE THE CONCLUDING EVENT.  IF, ON THE OTHER
HAND, THE COURT REALLY INTENDS ITS DOCTRINE TO REACH ONLY SO FAR AS
CASES IN WHICH OUR DECISION IN ALL PROBABILITY WILL TERMINATE THE
LITIGATION, THEN THE COURT IS REVERSING THE TRADITIONAL SEQUENCE OF
JUDICIAL DECISIONMAKING.  HERETOFORE, IT HAS GENERALLY BEEN THOUGHT
THAT A COURT FIRST ASSUMED JURISDICTION OF A CASE, AND THEN WENT ON TO
DECIDE THE MERITS OF THE QUESTIONS IT PRESENTED.  BUT HENCEFORTH IN
DETERMINING OUR OWN JURISDICTION WE MAY BE OBLIGED TO DETERMINE WHETHER
OR NOT WE AGREE WITH THE MERITS OF THE DECISION OF THE HIGHEST COURT OF
A STATE. 

YET ANOTHER DIFFICULTY WITH THE COURT'S FORMULATION IS THE PROBLEM
OF TRANSPOSING TO ANY OTHER CASE THE REQUIREMENT THAT "FAILURE TO
DECIDED THE QUESTION NOW WILL LEAVE THE PRESS IN GEORGIA OPERATING IN
THE SHADOW OF THE CIVIL AND CRIMINAL SNACTIONS OF A RULE OF LAW AND A
STATUTE THE CONSTITUTIONALITY OF WHICH IS IN SERIOUS DOUBT."  ANTE, AT
486.  ASSUMING THAT WE ARE TO MAKE THIS DETERMINATION OF "SERIOUS
DOUBT" AT THE TIME WE NOTE PROBABLE JURISDICTIONO OF SUCH AN APPEAL, IS
IT ENOUGH THAT THE HIGHEST COURT OF THE STATE HAS RULED AGAINST ANY
FEDERAL CONSTITUTIONAL CLAIM?  IF THAT IS THE CASE, THEN BECAUSE 1257
BY OTHER LANGUAGE IMPOSES THAT REQUIREMENT, WE WILL HAVE COMPLETELY
READ OUT OF THE STATUTE THE LIMITATION OF OUR JURISDICITON TO A "FINAL
JUDGMENT OR DECREE."  PERHAPS THE COURT'S NEW STANDARD FOR FINALITY IS
LIMITED TO CASES IN WHICH A FIRST AMENDMENT FREEDOM IS AT ISSUE.  THE
LANGUAGE USED BY CONGRESS, HOWEVER, CERTAINLY PROVIDES NO BASIS FOR
PREFERRING THE FIRST AMENDMENT, AS INCORPORATED BY THE FOURTEENTH
AMENDMENT, TO THE VARIOUS OTHER AMENDMENTS WHICH ARE LIKEWISE
"INCORPORATED," OR INDEED FOR PREFERRING ANY OF THE "INCORPORATED"
AMENDMENTS OVER THE DUE PROCESS AND EQUAL PROTECTION PROVISIONS WHICH
ARE EMBODIED LITERALLY IN THE FOURTEENTH AMENDMENT. 

ANOTHER PROBLEM IS THAT IN APPLYING THE SECOND PRONG OF ITS TEST,
THE COURT HAS NOT ENGAGEDIN ANY INDEPENDENT INQUIRY AS TO THE
CONSEQUESNCES OF PERMITTING THE DECISION OF THE SUPREME COURT OF
GEORGIA TO REMAIN UNDISTURBED PENDING FINAL STATE COURT RESOLUTION OF
THE CASE.  THIS SUGGESTS THAT IN ORDER TO INVOKE THE BENEFIT OF TODAY'S
RULE, THE "SHADOW" IN WHICH AN APPELLANT MUST STAND NEED BE NEITHER
DEEP NOR WIDE.  IN THIS CASE NOTHING MORE IS AT ISSUE THAN THE RIGHT TO
REPORT THE NAME OF THE VICTIM NO HINDRANCE OF ANY SORT HAS BEEN IMPOSED
ON REPORTING THE FACT OF A RAPE OR THE CIRCUMSTANCES SURROUNDING IT.
YET THE COURT UNQUESTIONINGLY PLACES THIS ISSUE ON A PAR WITH THE CORE
FIRST AMENDMENT INTEREST INVOLVED IN MIAMI HERALD PUBLISHING CO. V.
TORNILLO, 418 U.S. 241 (1974), AND MILLS V. ALABAMA, SUPRA, THAT OF
PROTECTING THE PRESS IN ITS ROLE OF PROVIDING UNINHIBITED POLITICAL
DISCOURSE.  /5/ 

BUT THE GREATEST DIFFICULTY WITH THE TEST ENUNCIATED TODAY IS THAT
IT TOTALLY ABANDONS THEPRINCIPLE THAT CONSTITUTIONAL ISSUES ARE TO
IMPORTANT TO BE DECIDED SAVE WHEN ABSOLUTELY NECESSARY, AND ARE TO BE
AVOIDED IF THERE ARE GROUNDS FOR DECISION OF LESSER DIMENSION.  /6/ THE
LONG LINE OF CASES WHICH ESTABLISHED THIS RULE MAKES CLEAR THAT IT IS A
PRINCIPLE PRIMARILY DESIGNED, NOT TO BENEFIT THE LOWER COURTS, OR STATE
FEDERAL RELATIONS, BUT RATHER TO SAFEGUARD THIS COURT'S OWN PROCESS OF
CONSTITUTIONAL ADJUDICATION. 

  CONSIDERATIONS OF PROPRIETY, AS WELL AS LONG-ESTABLISHED
PRACTICE, DEMAND THAT WE REFRAIN FROM

  PASSING UPON THE CONSTITUTIONALITY OF AN ACT OF CONGRESS UNLESS
OBLIGED TO DO SO IN THE PROPER

  PERFORMANCE OF OUR JUDICIAL FUNCTION, WHEN THE QUESTION IS RAISED
BY A PARTY WHOSE INTERESTS

ENTITLE HIM TO RAISE IT."  BLAIR V. UNITED STATES, 250 U.S. 273, 279
(1919). 

     THE COURT WILL NOT 'ANTICIPATE A QUESTION OF CONSTITUTIONAL
LAW

  IN ADVANCE OF THE NECESSITY OF DECIDING IT.'  LIVERPOOL, N. Y. &

  P. S. S. CO. V. EMIGRATION COMMISSIONERS, 113 U.S. 33, 39; ABRAMS

  V. VAN SCHAICK, 293 U.S. 188; WILSHIRE OIL CO. V. UNITED STATES,

295 U.S. 100.  ' IT IS NOT THE HABIT OF THE COURT TO DECIDE

 QUESTIONS OF A CONSTITUTIONAL NATURE UNLESS ABSOLUTELY NECESSARY

  TO A DECISION OF THE CASE.'  BURTON V. UNITED STATES, 196 U.S.

  283, 295."  ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S.
288,

  346 - 347 (1936) (BRANDEIS, J., CONCURRING). 

IN THIS CASE THERE HAS YET TO BE AN ADJUDICATION OF LIABILITY AGAINST
APPELLANTS, AND UNLIKE THE APPELLANT IN MILLS V. ALABAMA, THEY DO NOT
CONCEDE THAT THEY HAVE NO NON-FEDERAL DEFENSES.  NONETHELESS, THE COURT
RULES ON THEIR CONSTITUTIONAL DEFENSE.  FAR FROM ESCHEWING A
CONSTITUTIONAL HOLDING IN ADVANCE OF THE NECESSITY FOR ONE, THE COURT
CONSTRUES 1257 SO THAT IT MAY VIRTUALLY RUSH OUT AND MEET THE
PROSPECTIVE CONSTITUTIONAL LITIGANT AS HE APPROACHES OUR DOORS. 

        III 

THIS COURT IS OBLIGED TO MAKE PRELIMINARY DETERMINATIONS OF ITS
JURISDICTION AT THE TIME IT VOTES TO NOTE PROBABLE JURISDICTION.  AT
THAT STAGE OF THE PROCEEDINGS, PRIOR TO BRIEFING ON THE MERITS OR ORAL
ARGUMENT, SUCH DETERMINATIONS MUST OF NECESSITY BE BASED ON RELATIVELY
CURSORY ACQUAINTANCE WITH THE RECORD OF THE PROCEEDINGS BELOW.  THE
NEED FOR AN UNDERSTANDABLE AND WORKABLE APPLICATION OF A JURISDICTIONAL
PROVISION SUCH AS 1257 IS THEREFORE FAR GREATER THAN FOR A SIMILAR
INTERPRETATION OF STATUTES DEALING WITH SUBSTANTIVE LAW.  /7/ WE, OF
COURSE, RETAIN THE AUTHORITY TO DISMISS A CASE FOR WANT OF A FINAL
JUDGMENT AFTER HAVING STUDIED BRIEFS ON THE MERITS AND HAVING HEARD
ORAL ARGUMENT, BUT I CAN RECALL NOT A SINGLE INSTANCE OF SUCH A
DISPOSITION DURING THE LAST THREE TERMS OF THE COURT.  WHILE IN THEORY
THIS MAY BE EXPLAINED BY SAYING THAT DURING THESE TERMS WE HAVE NEVER
ACCORDED PLENARY CONSIDERATION TO A 1257 CASE WHICH WAS NOT A "FINAL
JUDGMENT OR DECREE," I WOULD GUESS IT JUST AS ACCURATE TO SAY THAT
AFTER THE COURT HAS STUDIED BRIEFS AND HEARD ORAL ARGUMENT, IT HAS AN
UNDERSTANBLE TENDENCY TO PROCEED TO A DECISION ON THE MERITS IN
PREFERENCE TO DISMISSING FOR WANT OF JURISDICITON.  IT IS THUS
ESPECIALLY DISTURBING THAT THE RULE OF THIS CASE, UNLIKE THE MORE
WORKABLE AND STRAIGHTFORWARD EXCEPTIONS WHICH THE COURT HAS PREVIOUSLY
FORMULATED, WILL SERIOUSLY COMPOUND THE ALREADY DIFFICULT TASK OF
ACCURATELY DTERMINING, AT A PRELIMINARY STAGE, WHETHER AN APPEAL FROMA
STATE COURT JUDGMENT IS A "FINAL JUDGMENT OR DECREE." 

A FURTHER ASPECT OF THE DIFFICULTIES WHICH THE COURT IS GENERATING
IS ILLUSTRATED BY A PETITION FOR CERTIORARI RECENTLY FILED IN THIS
COURT, TIME, INC. V. FIRESTONE, NO. 74 - 944.  THE CASE WAS TWICE
BEFORE TH FLORIDA SUPREME COURT.  THAT COURT'S FIRST DECISION WAS
RENDERED IN DECEMBER 1972; IT REJECTED TIME'S FIRST AMENDMENT DEFENSE
TO A LIBEL ACTION, AND REMANDED FOR JURTHER PROCEEDINGS ON STATE LAW
ISSUES.  THE SECOND DECISION WAS RENDERED IN 1974, AND DEALT WITH THE
STATE LAW SSUES LITIGATED ON REMAND.  BEFORE THIS COURT, TIME SEEKS
REVIEW OF THE FIRST AMENDMENT DEFENSE REJECTED BY THE FLORIDA SUPREME
COURT IN DECEMBER 1972.  UNDER THE COURT'S DECISION TODAY, ONE COULD
CONCLUDE THAT THE 1972 JUDGMENT WAS ITSELF A FINAL DECISION FROM WHICH
REVIEW MIGHT HAVE BEEN HAD.  IF IT WAS, THEN PETITIONER TIME IS
CONFRONTED BY 28 U.S.C. 2101 (C), WHICH RESTRICTS THIS COURT'S
JURISDICITON OVER STATE CIVIL CASES TO THOSE IN WHICH REVIEW IS SOUGHT
WITHIN 90 DAYS OF THE ENTRY OF A REVIEWABLE JUDGMENT. 

IN IN NO WAY SUGGEST EITHER MY OWN OR THE COURT'S VIEWS ON OUR
JURISDICITON OVER TIME, INC. V. FIRESTONE.  THIS EXAMPLE IS SIMPLY
ILLUSTRATIVE OF THE DIFFICULTIES WHICH TODAY'S DECISION POSES NOT ONLY
FOR THIS COURT, BUT ALSO FOR A PRUDENT COUNSEL WHO IS FACED WITH AN
ADVERSE INTERLOCUTORY RULING BY A STATE'S HIGHEST COURT ON A FEDERAL
ISSUE ASSERTED AS A DISPOSITIVE BAR TO FURTHER LITIGATION.  I SUPPOSE
THAT SUCH COUNSEL WOULD BE UNWILLING TO PRESUME THAT THIS COURT WOULD
FLOUT BOTH THE MEANING OF WORDS AND THE COMMAND OF CONGRESS BY
EMPLOYING LOOSE STANDARDS OF FINALITY TO OBTAIN JURISDICITON, BUT
STRICT ONES TO PREVENT ITS LOSS.  HE THUS WOULD BE COMPELLED TO JUDGE
HIS SITUATION IN LIGHT OF TODAY'S FORMLESS, UNWORKABLE EXCEPTION TO THE
FINALITY REQUIREMENT.  I WOULD EXPECT HIM FREQUENTLY TO CHOOSE TO SEEK
IMMEDIATE REVIEW IN THIS COURT, SOLELY AS A MATTER OF ASSURING THAT HIS
FEDERAL CONTENTIONS ARE NOT LOST FOR WANT OF TIMELY FILING.  THE
INEVITABLE RESULT WILL BE TOTALLY UNNECESSARY ADDITIONS TO OUR DOCKET
AND SERIOUS INTERRUPTIONS AND DELAYS OF THE STATE ADJUDICATORY
PROCESS. 

ALTHOUGH UNABLE TO PERSUADE MY BRETHERN THAT WE DO NOT HAVE IN THIS
CASE A FINAL JUDGMENT OR DECREE OF THE SUPREME COURT OF GEORGIA, I
NONETHELESS TAKE HEART FROM THE FACT THAT WE ARE CONCERNED HERE WITH AN
AREA IN WHICH "STARE DECISIS HAS HISTORICALLY BEEN ACCORDED
CONSIDERABLY LESS THAN ITS USUAL WEIGHT."  GONZALEZ V. EMPLOYEES CREDIT
UNION, 419 U.S. 90, 95 (1974).  I WOULD DISMISS FOR WANT OF
JURISDICTION. 

/1/ SEE CONSTRUCTION LABORERS V. CURRY, 371 U.S. 542, 553 (1963);
MERCANTILE NATIONAL BANK V. LANGDEAU, 371 U.S. 555, 572 (1963); HUDSON
DISTRIBUTORS V. ELI LILLY, 377 U.S. 386, 395 (1964); ORGANIZATION FOR A
BETTER AUSTIN V. KEEFE, 402 U.S. 415, 420 (1971). 

/2/ SEE, E.G., AMERICAN RADIO ASSN. V. MOBILE S.S. ASSN., 419 U.S.
215, 217 N. 1 (1974); HUDSON DISTRIBUTORS V. ELI LILLY, SUPRA, AT 389
N. 4. 

/3/ THE TEXTUAL DISTINCTION BETWEEN 1291 AND 1257, THE FORMER
REFERRING TO "FINAL DECISIONS," WHILE THE LATTER REFERS TO "FINAL
JUDGMENTS OR DECREES," FIRST APPEARED IN THE EVARTS ACT, ACT OF MAR. 3,
1891, 26 STAT. 826, WHICH CREATED THE COURTS OF APPEALS.  SECTION 6 OF
THAT ACT PROVIDED THAT COURTS OF APPEALS SHOULD EXERCISE APPELLATE
JURISDICITON OVER "FINAL DECISION" OF THE FEDERAL TRIAL COURTS.  THE
HOUSE VERSION OF THE ACT HAD REFERRED TO "FINAL JUDGMENT OR DECREE," 21
CONG. REC. 3402 (1890), BUT THE STATE JUDICIARY COMMITTEE CHANGED THE
WORDING WITHOUT FORMAL EXPLANATION.  SEE ID., AT 10218.  PERHAPS
SIGNIFICANCE CAN BE ATTACHED TO THE FACT THAT UNDER THE HOUSE BILL THE
COURTS OF APPEALS WOULD HAVE BEEN INDEPENDENT OF THE FEDERAL TRIAL
COURTS, BEING MANNED BY FULL-TIME APPELLATE JUDGES; THE SENATE VERSION,
ON THE OTHER HAND, GENERALLY PROVIDED THAT COURT OF APPEALS DUTIES
WOULD BE PERFORMED BY THE TRIAL JUDGES WITHIN EACH CIRCUIT.  SEE 3, 26
STAT. 827.     THE FIRST JUDICIARY ACT, ACT OF SEPT. 24, 1789, 1 STAT.
73, USED THE TERMS "JUDGMENT" AND "DECREE" IN DEFINING THE APPELLATE
JURISDICTION OF BOTH THE SUPREME COURT, 25, AND THE ORIGINAL CIRCUIT
COURTS.  22. 

/4/ SEE, E.G., 2, U.S.C. 1341 (LIMITATION ON POWER OF DISTRICT
COURTS TO ENJOIN STATE TAXING SYSTEMS); 2, U.S.C. 1739 (THAT STATE
JUDICIAL PROCEEDINGS SHALLBE ACCORDED FULL FAITH AND CREDIT IN FEDERAL
COURTS); 28 U.S.C. 2253 - 2254 (PRESCRIBING VARIOUS RESTRICTIONS ON
FEDERAL HABEAS CORPUS FOR STATE PRISONERS); 28 U.S.C. 2281 (THREE-JUDGE
DISTRICT COURT REQUIREMENT); 28 U.S.C. 2283 (RESTRICTING POWER OF
FEDERAL COURTS TO ENJOIN STATE COURT PROCEEDINGS). 

/5/ AS POINTED OUT IN TORNILLO, 418 U.S., AT 247 N. 6, NOT ONLY DID
UNCERTAINTY ABOUT FLORIDA'S "RIGHT OF REPLY" STATUTE INTERFERE WITH
THIS IMPORTANT PRESS FUNCTION, BUT DELAY BY THIS COURT WOULD HAVE LEFT
THE MATTER UNRESOLVED DURING THE IMPENDING 1974 ELECTIONS.  IN MILLS,
THE COURT OBSERVED THAT "THERE IS PRACTICALLY UNIVERSAL AGREEMENT THAT
A MAJOR PURPOSE OF (THE FIRST) AMENDMENT WAS TO PROTECT THE FREE
DISCUSSION OF GOVERNMENTAL AFFAIRS."  384 U.S., AT 218. 

/6/ ONE IMPORTANT DISTINCTION BETWEEN THIS CASE AND CONSTRUCTION
LABORERS V. CURRY, 371 U.S. 542 (1963), HAS ALREADY BEEN DISCUSSED,
SUPRA, AT 506.  ANOTHER IS THAT THE FEDERAL ISSUE HERE IS
CONSTITUTIONAL, WHEREAS THAT IN CURRY WAS STATUTORY. 

/7/ CF. UNITED STATES V. SISSON, 399 U.S. 267, 307 (1970):  "
CLARITY IS TO BE DESIRED IN ANY STATUTE, BUT IN MATTERS OF JURISDICTION
IT IS ESPECIALLY IMPORTANT.  OTHERWISE THE COURTS AND THE PARTIES MUST
EXPEND GREAT ENERGY, NOT ON THE MERITS OF DISPUTE SETTLEMENT, BUT ON
SIMPLY DECIDING WHETHER A COURT HAS THE POWER TO HEAR A CASE." 

KIRK M. MC ALPIN ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WAS JOSEPH BANKOFF. 

STEPHEN A. LAND ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLEE. 

BRIEFS OF AMICI CURIAE WERE FILED BY ARTHUR K. BOLTON, ATTORNEY
GENERAL, ROBERT S. STUBBS II, EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND
DON A. LANGHAM AND LAFRED L. EVANS, JR., ASSISTANT ATTORNEYS GENERAL,
FOR THE STATE OF GEORGIA, AND BY DAVID L. FREEMAN AND ALFRED F.
BURGRESS FOR MULTIMEDIA, INC.
..END :
















UNITED STATES V. GUANA-SANCHEZ, 420 U.S. 513 


       UNITED STATES V. GUANA- SANCHEZ

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS

        FOR THE SEVENTH CIRCUIT

        NO. 73 - 280.  ARGUED JANUARY 14, 1975--DECIDED MARCH 3,

           1975; 484 F. 2D 590, CERTIRARI DISMISSED AS

           IMPROVIDENTLY GRANTED. 


PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

PAUL L. FRIEDMAN ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL PETERSEN,
AND GERALD P. NORTON. 

JOSEPH BEELER, BY APPOINTMENT OF THE COURT, 419 U.S. 961, ARGUED THE
CASUE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS DONALD J. MARTIN. 

SANFORD JAY ROSEN AND MELVIN L. WULF FILED A BRIEF FOR THE MEXICAN
AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND ET AL. AS AMICI CURIAE
URGING AFFIRMANCE. 
..END :





















CASSIUS V. ARIZONA, 420 U.S. 514 


       CASSIUS V. ARIZONA

        CERTIORARI TO THE SUPREME COURT OF ARIZONA

        NO. 74 - 5140.  ARGUED JANUARY 21, 1975--DECIDED MARCH 3,

           1975; 110 ARIZ. 485, 520 P. 2D 1109, CERTIORARI

           DISMISSED IMPROVIDENTLY GRANTED. 


PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED 

MR. JUSTICE BLACKMUN AND MR. JUSTICE POWELL DISSENT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.  FREDRICK S. KLEIN ARGUED THE CAUSE FOR PETITIONER PRO HAC
VICE.  WITH HIM ON THE BRIEFS WAS JOHN M. NEIS. 

WILLIAM J. SCHAFER III ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE BRUCE E. BABBITT, ATTORNEY GENERAL OF ARIZONA, N. WARNER
LEE, FORMER ATTORNEY GENERAL, AND GROVE M. CALLISION, ASSISTANT
ATTORNEY GENERAL. 
..END :




WOOD V. STRICKLAND, 420 U.S. 308 


       WOOD ET AL. V. STRICKLAND ET AL.

        CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE

   EIGHTH CIRCUIT

        NO. 73 - 1285.  ARGUED OCTOBER 16, 1974--, DECIDED FEBRUARY

           25, 1975; 485 F.2D 186, VACATED AND REMANDED. 


    RESPONDENT ARKANSAS HIGH SCHOOL STUDENTS, WHO HAD BEEN EXPELLED

  FROM SCHOOL FOR VIOLATING A SCHOOL REGULATION PROHIBITING THE USE

  OR POSSESSION OF INTOXICATING BEVERAGES AT SCHOOL OR SCHOOL

  ACTIVITIES, BROUGHT SUIT UNDER 42 U.S.C. 1983 AGAINST PETITIONER

  SCHOOL OFFICIALS, CLAIMING THAT SUCH EXPULSIONS INFRINGED

  RESPONDENTS' RIGHTS TO DUE PROCESS AND SEEKING DAMAGES AND

  INJUNCTIVE AND DECLARATORY RELIEF.  THE DISTRICT COURT DIRECTED

  VERDICTS FOR PETITIONERS ON THE GROUND THAT THEY WERE IMMUNE FROM

DAMAGES SUITS ABSENT PROOF OF MALICE IN THE SENSE OF ILL WILL

  TOWARD RESPONDENTS.  THE COURT OF APPEALS FINDING THAT THE FACTS

  SHOWED A VIOLATION OF RESPONDENTS'  RIGHTS TO "SUBSTANTIVE DUE

  PROCESS," SINCE THE DECISIONS TO EXPEL RESPONDENTS WERE MADE ON

  THE BASIS OF NO EVIDENCE THAT THE REGULATION HAD BEEN VIOLATED,

  REVERSED AND REMANDED FOR APPROPRIATE INJUNCTIVE RELIEF AND A NEW

  TRIAL ON THE QUESTION OF DAMAGES.  HELD: 

     1.  WHILE ON THE BASIS OF COMMON-LAW TRADITION AND PUBLIC

  POLICY, SCHOOL OFFICIALS ARE ENTITLED TO A QUALIFIED GOOD-FAITH

  IMMUNITY FROM SUCH LIABILITY FOR DAMAGES UNDER 1983, THEY ARE NOT

  IMMUNE FROM SUCH LIABILITY IF THEY KNEW OR REASONABLY SHOULD HAVE

 KNOWN THAT THE ACTION THEY TOOK WITHIN THEIR SPHERE OF OFFICIAL

  RESPONSIBILITY WOULD VIOLATE THE CONSTITUTIONAL RIGHTS OF THE

  STUDENT AFFECTED, OR IF THEY TOOK THE ACTION WITH THE MALICIOUS

  INTENTION TO CAUSE A DEPRIVATION OF SUCH RIGHTS OR OTHER INJURY

  TO THE STUDENT.  BUT A COMPENSATORY AWARD WILL BE APPROPRIATE

  ONLY IF THE SCHOOL OFFICIALS ACTED WITH SUCH AN IMPERMISSIBLE

  MOTIVATION OR WITH SUCH DISREGARD OF THE STUDENT'S CLEARLY

  ESTABLISHED CONSTITUTIONAL RIGHTS THAT THEIR ACTION CANNOT

  REASONABLY BE CHARACTERIZED AS BEING IN GOOD FAITH.  PP. 313 -

  322. 

     2.  WHEN THE REGULATION IN QUESTION IS CONSTRUED BY THE

  RESPONSIBLE SCHOOL OFFICIALS, TO PROHIBIT THE USE AND POSSESSION

  OF BEVERAGES CONTAINING ANY ALCOHOL, RATHER THAN AS ERRONEOUSLY

  CONSTRUED BY THE COURT OF APPEALS TO REFER ONLY TO BEVERAGES

  CONTAINING IN EXCESS OF A CERTAIN ALCOHOLIC CONTENT, THERE WAS NO

  ABSENCE OF EVIDENCE TO PROVE THE CHARGE AGAINST RESPONDENTS, AND

  HENCE THE COURT OF APPEALS' CONTRARY JUDGMENT IS IMPROVIDENT. 

  SECTION 1983 DOES NOT EXTEND THE RIGHT TO RELITIGATE IN FEDERAL

  COURT EVIDENTIARY QUESTIONS ARISING IN SCHOOL DISCIPLINARY

  PROCEEDINGS OR THE PROPER CONSTRUCTION OF SCHOOL REGULATIONS AND

  WAS NOT INTENDED TO BE A VEHICLE FOR FEDERAL COURT CORRECTION OF

  ERRORS IN THE EXERCISE OF SCHOOL OFFICIALS' DISCRETION THAT DO

  NOT RISE TO THE LEVEL OF VIOLATIONS OF SPECIFIC CONSTITUTIONAL

  GUARANTEES.  PP. 322 - 326. 

     3.  SINCE THE DISTRICT COURT DID NOT DISCUSS WHETHER THERE A

  PROCEDURAL DUE PROCESS VIOLATION, AND THE COURT OF APPEALS DID

  NOT DECIDE THE ISSUE, THE COURT OF APPEALS, RATHER THAN THIS

  COURT, SHOULD CONSIDER THAT QUESTION IN THE FISRST INSTANCE.  PP.

  326 - 327. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN PARTS I, III,

  AND IV OF WHICH ALL OTHER MEMBERS JOINED, AND IN PART II OF WHICH

  DOUGLAS, BRENNAN, STEWART, AND MARSHALL, JJ., JOINED.  POWELL,

  J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART,

  IN WHICH BURGER, C.J., AND BLACKMUN AND REHNQUIST, JJ., JOINED,

  POST P. 327. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS PEGGY STRICKLAND AND VIRGINIA CRAIN BROUGHT THIS LAWSUIT
AGAINST PETITIONERS, WHO WERE MEMBERS OF THE SCHOOL BOARD AT THE TIME
IN QUESTION, TWO SCHOOL ADMINISTRATORS, AND THE SPECIAL SCHOOL DISTRICT
OF MENA, ARKANSAS, /1/ PURPORTING TO ASSERT A CAUSE OF ACTION UNDER 42
U.S.C. 1983, AND CLAIMING THAT THEIR FEDERAL CONSTITUTIONAL RIGHTS TO
DUE PROCESS WERE INFRINGED UNDER COLOR OF STATE LAW BY THEIR EXPULSION
FROM THE MENA PUBLIC HIGH SCHOOL ON THE GROUNDS OF THEIR VIOLATION OF A
SCHOOL REGULATION PROHIBITING THE USE OR POSSESSION OF INTOXICATING
BEVERAGES AT SCHOOL OR SCHOOL ACTIVITIES.  THE COMPLAINT AS AMENDED
PRAYED FOR COMPENSATORY AND PUNITIVE DAMAGES AGAINST ALL PETITIONERS,
INJUNCTIVE RELIEF ALLOWING RESPONDENTS TO RESUME ATTENDANCE, PREVENTING
PETITIONERS FROM IMPOSING ANY SANCTIONS AS A RESULT OF THE EXPULSION,
AND RESTRAINING ENFORCEMENT OF THE CHALLENGED REGULATION, DECLARATORY
RELIEF AS TO THE CONSTITUTIONAL INVALIDITY OF THE REGULATION, AND
EXPUNCTION OF ANY RECORD OF THEIR EXPULSION.  AFTER THE DECLARATION OF
A MISTRIAL ARISING FROM THE JURY'S FAILURE TO REACH A VERDICT, THE
DISTRICT COURT DIRECTED VERDICTS IN FAVOR OF PETITIONERS ON THE GROUND
THAT PETITIONERS WERE IMMUNE FROM DAMAGES SUITS ABSENT PROOF OF MALICE
IN THE SENSE OF ILL WILL TOWARD RESPONDENTS.  348 F.SUPP.  244 (WD ARK.
1972) THE COURT OF APPEALS, FINDING THAT THE FACTS SHOWED A VIOLATION
OF RESPONDENTS' RIGHTS TO "SUBSTANTIVE DUE PROCESS," REVERSED AND
REMANDED FOR APPROPRIATE INJUNCTIVE RELIEF /2/ AND A NEW TRIAL ON THE
QUESTION OF DAMAGES.  485 F. 2D 186 (CA 8 1973).  A PETITION FOR
REHEARING EN BANC WAS DENIED, WITH THREE JUDGES DISSENTING.  SEE ID.,
AT 191.  CERTIORARI WAS GRANTED TO CONSIDER WHETHER THIS APPLICATION OF
DUE PROCESS BY THE COURT OF APPEALS WAS WARRANTED AND WHETHER THAT
COURT'S EXPRESSION OF A STANDARD GOVERNING IMMUNITY FOR SCHOOL BOARD
MEMBERS FROM LIABILITY FOR COMPENSATORY DAMAGES UNDER 42 U.S.C. 1983
WAS THE CORRECT ONE.  416 U.S. 935 (1974). 

        I 

THE VIOLATION OF THE SCHOOL REGULATION /3/ PROHIBITING THE USE OR
POSSESSION OF INTOXICATING BEVERAGES AT SCHOOL OR SCHOOL ACTIVITIES
WITH WHICH RESPONDENTS WERE CHARGED CONCERNED THEIR "SPIKING" OF THE
PUNCH SERVED AT A MEETING OF AN EXTRACURRICULAR SCHOOL ORGANIZATION
ATTENDED BY PARENTS AND STUDENTS.  AT THE TIME IN QUESTION, RESPONDENTS
WERE 16 YEARS OLD AND WERE IN THE 10TH GRADE.  THE RELEVANT FACTS BEGIN
WITH THEIR DISCOVERY THAT THE PUNCH HAD NOT BEEN PREPARED FOR THE
MEETING AS PREVIOUSLY PLANNED.  THE GIRLS THEN AGREED TO "SPIKE" IT.
SINCE THE COUNTY IN WHICH THE SCHOOL IS LOCATED IS "DRY," RESPONDENTS
AND A THIRD GIRL DROVE ACROSS THE STATE BORDER INTO OKLAHOMA AND
PURCHASED TWO 12-OUNCE BOTTLES OF " RIGHT TIME," A MALT LIQUOR.  THEY
THEN BOUGHT SIX 10-OUNCE BOTTLES OF A SOFT DRINK, AND, AFTER HAVING
MIXED THE CONTENTS OF THE EIGHT BOTTLES IN AN EMPTY MILK CARTON,
RETURNED TO SCHOOL.  PRIOR TO THE MEETING, THE GIRLS EXPERIENCED SECOND
THOUGHTS ABOUT THE WISDOM OF THEIR PRANK, BUT BY THEN THEY WERE CAUGHT
UP IN THE FORCE OF EVENTS AND THE INTERVENTION OF OTHER GIRLS PREVENTED
THEM FROM DISPOSING OF THE ILLICIT PUNCH.  THE PUNCH WAS SERVED AT THE
MEETING, WITHOUT APPARENT EFFECT. 

TEN DAYS LATER, THE TEACHER IN CHARGE OF THE EXTRACURRICULAR GROUP
AND MEETING, MRS. CURTIS POWELL, HAVING HEARD SOMETHING ABOUT THE
"SPIKING," QUESTIONED THE GIRLS ABOUT IT. ALTHOUGH FIRST DENYING ANY
KNOWLEDGE, THE GIRLS ADMITTED THEIR INVOLVEMENT AFTER THE TEACHER SAID
THAT SHE WOULD HANDLE THE PUNISHMENT HERSELF.  THE NEXT DAY, HOWEVER,
SHE TOLD THE GIRLS THAT THE INCIDENT WAS BECOMING INCREASINGLY THE
SUBJECT OF TALK IN THE SCHOOL AND THAT THE PRINCIPAL, P.T. WALLER,
WOULD PROBABLY HEAR ABOUT IT.  SHE TOLD THEM THAT HER JOB WAS IN
JEOPARDY BUT THAT SHE WOULD NOT FORCE THEM TO ADMIT TO WALLER WHAT THEY
HAD DONE.  IF THEY DID NOT GO TO HIM THEN, HOWEVER, SHE WOULD NOT BE
ABLE TO HELP THEM IF THE INCIDENT BECAME "DISTORTED."  THE THREE GIRLS
THEN WENT TO WALLER AND ADMITTED THEIR ROLE IN THE AFFAIR.  HE
SUSPENDED THEM FROM SCHOOL FOR A MAXIMUM TWO-WEEK PERIOD, SUBJECT TO
THE DECISION OF THE SCHOOL BOARD.  WALLER ALSO TOLD THEM THAT THE BOARD
WOULD MEET THAT NIGHT, THAT THE GIRLS COULD TELL THEIR PARENTS ABOUT
THE MEETING, BUT THAT THE PARENTS SHOULD NOT CONTACT ANY MEMBERS OF THE
BOARD. 

NEITHER THE GIRLS NOR THEIR PARENTS ATTENDED THE SCHOOL BOARD
MEETING THAT NIGHT.  BOTH MRS. POWELL AND WALLER, AFTER MAKING THEIR
REPORTS CONCERNING THE INCIDENT, RECOMMENDED LENIENCY.  AT THIS POINT,
A TELEPHONE CALL WAS RECEIVED BY S. L. INLOW, THEN THE SUPERINTENDENT
OF SCHOOLS, FROM MRS. POWELL'S HUSBAND, ALSO A TEACHER AT THE HIGH
SCHOOL, WHO REPORTED THAT HE HAD HEARD THAT THE THIRD GIRL INVOLVED HAD
BEEN IN A FIGHT THAT EVENING AT A BASKETBALL GAME.  INLOW INFORMED THE
MEETING OF THE NEWS, ALTHOUGH HE DID NOT MENTION THE NAME OF THE GIRL
INVOLVED.  MRS. POWELL AND WALLER THEN WITHDREW THEIR RECOMMENDATIONS
OF LENIENCY, AND THE BOARD VOTED TO EXPEL THE GIRLS FROM SCHOOL FOR THE
REMAINDER OF THE SEMESTER, A PERIOD OF APPROXIMATELY THREE MONTHS. 

THE BOARD SUBSEQUENTLY AGREED TO HOLD ANOTHER MEETING ON THE MATTER,
AND ONE WAS HELD APPROXIMATELY TWO WEEKS AFTER THE FIRST MEETING.  THE
GIRLS, THEIR PARENTS, AND THEIR COUNSEL ATTENDED THIS SESSION.  THE
BOARD BEGAN WITH A READING OF A WRITTEN STATEMENT OF FACTS AS IT HAD
FOUND THEM.  /4/ THE GIRLS ADMITTED MIXING THE MALT LIQUOR INTO THE
PUNCH WITH THE INTENT OF "SPIKING" IT, BUT ASKED THE BOARD TO FORGO ITS
RULE PUNISHING SUCH VIOLATIONS BY SUCH SUBSTANTIAL SUSPENSIONS. 
NEITHER MRS. POWELL NOR WALLER WAS PRESENT AT THIS MEETING.  THE BOARD
VOTED NOT TO CHANGE ITS POLICY AND, AS BEFORE, TO EXPEL THE GIRLS FOR
THE REMAINDER OF THE SEMESTER.  /5/

        II 

THE DISTRICT COURT INSTRUCTED THE JURY THAT A DECISION FOR
RESPONSENTS HAD TO BE PREMISED UPON A FINDING THAT PETITIONERS ACTED
WITH MALICE IN EXPELLING THEM AND DEFINED "MALICE" AS MEANING "ILL WILL
AGAINST A PERSON--, A WRONGFUL ACT DONE INTENTIONALLY WITHOUT JUST
CAUSE OR EXCUSE."  348 F.SUPP., AT 248.  IN RULING FOR PETITIONERS
AFTER THE JURY HAD BEEN UNABLE TO AGREE, THE DISTRICT COURT FOUND "AS A
MATTER OF LAW" THAT THERE WAS NO EVIDENCE FROM WHICH MALICE COULD BE
INFERRED.  ID., AT 253. 

THE COURT OF APPEALS, HOWEVER, VIEWED BOTH THE INSTRUCTION AND THE
DECISION OF THE DISTRICT COURT AS BEING ERRONEOUS.  SPECIFIC INTENT TO
HARM WRONGFULLY, IT HELD, WAS NOT A REQUIREMENT FOR THE RECOVERY OF
DAMAGES.  INSTEAD, "(IT NEED ONLY BE ESTABLISHED THAT THE DEFENDANTS
DID NOT, IN THE LIGHT OF ALL THE CIRCUMSTANCES, ACT IN GOOD FAITH.  THE
TEST IS AN OBJECTIVE, RATHER THAN A SUBJECTIVE, ONE."  485 F.2D, 191
(FOOTNOTE OMITTED). 

PETITIONERS AS MEMBERS OF THE SCHOOL BOARD ASSERT HERE, AS THEY DID
BELOW, AN ABSOLUTE IMMUNITY FROM LIABILITY UNDER 1983 AND AT THE VERY
LEAST SEEK TO REINSTATE THE JUDGMENT OF THE DISTRICT COURT.  IF THEY
ARE CORRECT AND THE DISTRICT COURT'S DISMISSAL SHOULD BE SUSTAINED, WE
NEED GO NO FURTHER IN THIS CASE.  MOREEVER, THE IMMUNITY QUESTION
INVOLVES THE CONSTRUCTION OF A FEDERAL STATUTE, AND OUR PRACTICE IS TO
DEAL WITH POSSIBLY DISPOSITIVE STATUTORY ISSUES BEFORE REACHING
QUESTIONS TURNING ON THE CONSTRUCTION OF THE CONSTITUTION.  CF. HAGANS
V. LAVINE, 415 U.S. 528, 549 (1974).  /6/ WE ESSENTIALLY SUSTAIN THE
POSITION OF THE COURT OF APPEALS WITH RESPECT TO THE IMMUNITY ISSUE. 

THE NATURE OF THE IMMUNITY FROM AWARDS OF DAMAGES UNDER 1983
AVAILABLE TO SCHOOL ADMINISTRATORS AND SCHOOL BOARD MEMBERS IS NOT A
QUESTION WHICH THE LOWER FEDERAL COURTS HAVE ANSWERED WITH A SINGLE
VOICE.  THERE IS GENERAL AGREEMENT ON THE EXISTENCE OF A "GOOD FAITH"
IMMUNITY, BUT THE COURTS HAVE EITHER EMPHASIZED DIFFERENT FACTORS AS
ELEMENTS OF GOOD FAITH OR HAVE NOT GIVEN SPECIFIC CONTENT TO THE GOOD
FAITH STANDARD.  /7/ 

THIS COURT HAS DECIDED THREE CASES DEALING WITH THE SCOPE OF THE
IMMUNITY PROTECTING VARIOUS TYPES OF GOVERNMENTAL OFFICIALS FROM
LIABILITY FOR DAMAGES UNDER 1983.  IN TENNEY V. BRANDHOVE, 341 U.S. 367
(1951), THE QUESTION WAS FOUND TO BE ONE ESSENTIALLY OF STATUTORY
CONSTRUCTION.  /8/ NOTING THAT THE LANGUAGE OF 1983 IS SILENT WITH
RESPECT TO IMMUNITIES, THE COURT CONCLUDED THAT THERE WAS NO BASIS FOR
BELIEVING THAT CONGRESS INTENDED TO ELIMINATE THE TRADITIONAL IMMUNITY
OF LEGISLATORS FROM CIVIL LIABILITY FOR ACTS DONE WITHIN THEIR SPHERE
OF LEGISLATIVE ACTION.  THAT IMMUNITY, "SO WELL GROUNDED IN HISTORY AND
REASON . . . ," ID., AT 376, WAS ABSOLUTE AND CONSEQUENTLY DID NOT
DEPEND UPON THE MOTIVATIONS OF THE LEGISLATORS.  IN PIERSON V. RAY, 386
U.S. 547, 554 (1967), FINDING THAT "(THE LEGISLATIVE RECORD GIVES NO
CLEAR INDICATION THAT CONGRESS MEANT TO ABOLISH WHOLESALE ALL COMMON
LAW IMMUNITIES" IN ENACTING 1983, WE CONCLUDED THAT THE COMMON-LAW
DOCTRINE OF ABSOLUTE JUDICIAL IMMUNITY SURVIVED.  SIMILARLY, 1983 DID
NOT PRECLUDE APPLICATION OF THE TRADITIONAL RULE THAT A POLICEMAN,
MAKING AN ARREST IN GOOD FAITH AND WITH PROBABLE CAUSE, IS NOT LIABLE
FOR DAMAGES, ALTHOUGH THE PERSON ARRESTED PROVES INNOCENT. 
CONSEQUENTLY THE COURT SAID:  "ALTHOUGH THE MATTER IS NOT ENTIRELY FREE
FROM DOUBT, THE SAME CONSIDERATION WOULD SEEM TO REQUIRE EXCUSING HIM
FROM LIABILITY FOR ACTING UNDER A STATUTE THAT HE REASONABLY BELIEVED
TO BE VALID BUT THAT WAS LATER HELD UNCONSTITUTIONAL, ON ITS FACE OR AS
APPLIED."  ID., AT 555 (FOOTNOTE OMITTED).  FINALLY, LAST TERM WE HELD
THAT THE CHIEF EXECUTIVE OFFICER OF A STATE, THE SENIOR AND SUBORDINATE
OFFICERS OF THE STATE'S NATIONAL GUARD, AND THE PRESIDENT OF A STATE
CONTROLLED UNIVERSITY WERE NOT ABSOLUTELY IMMUNE FROM LIABILITY UNDER
1983, BUT INSTEAD WERE ENTITLED TO IMMUNITY, UNDER PRIOR PRECEDENT AND
IN LIGHT OF THE OBVIOUS NEED TO AVOID DISCOURAGING EFFECTIVE OFFICIAL
ACTION BY PUBLIC OFFICERS CHARGED WITH A CONSIDERABLE RANGE OF
RESPONSIBILITY AND DISCRETION, ONLY IF THEY ACTED IN GOOD FAITH AS
DEFINED BY THE COURT: 

"(IN VARYING SCOPE, A QUALIFIED IMMUNITY IS AVAILABLE TO

OFFICERS OF THE EXECUTIVE BRANCH OF GOVERNMENT, THE VARIATION

  BEING DEPENDENT UPON THE SCOPE OF DISCRETIONAND RESPONSIBILITIES

  OF THE OFFICE AND ALL THE CIRCUMSTANCES AS THEY REASONABLY

  APPEARED AT THE TIME OF THE ACTION ON WHICH LIABILITY IS SOUGHT

  TO BE BASED.  IT IS THE EXISTENCE OF REASONABLE GROUNDS FOR THE

  BELIEF FORMED AT THE TIME AND IN LIGHT OF ALL THE CIRCUMSTANCES,

  COUPLED WITH GOOD-FAITH BELIEF, THAT AFFORDS A BASIS FOR

  QUALIFIED IMMUNITY OF EXECUTIVE OFFICERS FOR ACTS PERFORMED IN

  THE COURSE OF OFFICIAL CONDUCT."  SCHEUER V. RHODES, 416 U.S.
232,

247 - 248 (1974). 

COMMON-LAW TRADITION, RECOGNIZED IN OUR PRIOR DECISIONS, AND STRONG
PUBLIC-POLICY REASONS ALSO LEAD TO A CONSTRUCTION OF 1983 EXTENDING A
QUALIFIED GOOD-FAITH IMMUNITY TO SCHOOL BOARD MEMBERS FROM LIABILITY
FOR DAMAGES UNDER THAT SECTION.  ALTHOUGH THERE HAVE BEEN DIFFERING
EMPHASES AND FORMULATIONS OF THE COMMON-LAW IMMUNITY OF PUBLIC SCHOOL
OFFICIALS IN CASES OF STUDENT EXPULSION OR SUSPENSION, STATE COURTS
HAVE GENERALLY RECOGNIZED THAT SUCH OFFICERS SHOULD BE PROTECTED FROM
TORT LIABILITY UNDER STATE LAW FOR ALL GOOD-FAITH, NONMALICIOUS ACTION
TAKEN TO FULFILL THEIR OFFICIAL DUTIES.  /9/ 

AS THE FACTS OF THIS CASE REVEAL, SCHOOL BOARD MEMBERS FUNCTION AT
DIFFERENT TIMES IN THE NATURE OF LEGISLATORS AND ADJUDICATORS IN THE
SCHOOL DISCIPLINARY PROCESS.  EACH OF THESE FUNCTIONS NECESSARILY
INVOLVES THE EXERCISE OF DISCRETION, THE WEIGHING OF MANY FACTORS, AND
THE FORMULATION OF LONG-TERM POLICY.  /10/ " LIKE LEGISLATORS AND
JUDGES, THESE OFFICERS ARE ENTITLED TO RELY ON TRADITIONAL SOURCES FOR
THE FACTUAL INFORMATION ON WHICH THEY DECIDE AND ACT."  SCHEUER V.
FHODES, SUPRA, AT 246 (FOOTNOTE OMITTED).  AS WITH EXECUTIVE OFFICERS
FACED WITH INSTANCES OF CIVIL DISORDER, SCHOL OFFICIALS, CONFRONTED
WITH STUDENT BEHAVIOR CAUSING OR THREATENING DISRUPTION, ALSO HAVE AN
"OBVIOUS NEED FOR PROMPT ACTION, AND DECISIONS MUST BE MADE IN RELIANCE
ON FACTUAL INFORMATION SUPPLIED BY OTHERS."  IBID. 

LIABILITY FOR DAMAGES FOR EVERY ACTION WHICH IS FOUND SUBSEQUENTLY
TO HAVE BEEN VIOLATIVE OF ATUDENT'S CONSTITUTIONAL RIGHTS AND TO HAVE
CAUSED COMPENSABLE INJURY WOULD UNFAIRLY IMPOSE UPON THE SCHOOL
DECISIONMAKER THE BURDEN OF MISTAKES MADE IN GOOD FAITH IN THE COURSE
OF EXERCISING HIS DISCRETION WITHIN TH SCOPE OF HIS OFFICIAL DUTIES. 
SCHOOL BOARD MEMBERS, AMONG OTHER DUTIES, MUST JUDGE WHETHER THERE HAVE
BEEN VIOLATIONS OF SCHOOL REGULATIONS AND, IF SO, THE APPROPRIATE
SANCTIONS FOR THE VIOLATIONS.  DENYING ANY MEASURE OF IMMUNITY IN THESE
CIRCUMSTANCES "WOULD CONTRIBUTE NOT TO PRINCIPLED AND FEARLESS DECISION
MAKING BUT TO INTIMIDATION."  PIERSON V. RAY, SUPRA, AT 554.  THE
IMPOSITION OF MONETARY COSTS FOR MISTAKES WHICH WERE NOT UNREASONABLE
IN THE LIGHT OF ALL THE CIRCUMSTANCES WOULD UNDOUBTEDLY DETER EVEN THE
MOST CONSCIENTIOUS SCHOOL DECISIONMAKER FROM EXERCISING HIS JUDGMENT
INDEPENDENTLY, FORCEFULLY, AND IN A MANNER BEST SERVING THE LONG-TERM
INTEREST OF THE SCHOOL AND THE STUDENTS.  THE MOST CAPABLE CANDIDATES
FOR SCHOOL BOARD POSITIONS MIGHT BE DETERRED FROM SEEKING OFFICE IF
HEAVY BURDENS UPON THEIR PRIVATE RESOURCES FROM MONETARY LIABILITY WERE
A LIKELY PROSPECT DURING THEIR TENURE.  /11/     THESE CONSIDERATIONS
HAVE UNDOUBTEDLY PLAYED A PRIME ROLE IN THE DEVELOPMENT BY STATE COURTS
OF A QUALIFIED IMMUNITY PROTECTING SCHOOL OFFICIALS FROM LIABILITY FOR
DAMAGES IN LAWSUITS CLAIMING IMPROPER SUSPENSIONS OR EXPULSIONS.  /12/
BUT AT THE SAME TIME, THE JUDGMENT IMPLICIT IN THIS COMMON-LAW
DEVELOPMENT IS THAT ABSOLUTE IMMUNITY WOULD NOT BE JUSTIFIED SINCE IT
WOULD NOT SUFFICIENTLY INCREASE THE ABILITY OF SCHOOL OFFICIALS TO
EXERCISE THEIR DISCRETION IN A FORTHRIGHT MANNER TO WARRANT THE ABSENCE
OF A REMEDY FOR STUDENTS SUBJECTED TO INTENTIONAL OR OTHERWISE
INEXCUSABLE DEPRIVATIONS. 

TENNEY V. BRANDHOVE, PIERSON V. RAY, AND SCHEUER V. RHODES DREW UPON
A VERY SIMILAR BACKGROUND AND WERE ANIMATED BY A VERY SIMILAR JUDGMENT
IN CONSTRUING 1983.  ABSENT LEGISLATIVE GUIDANCE, WE NOW RELY ON THOSE
SAME SOURCES IN DETERMINING WHETHER AND TO WHAT EXTENT SCHOOL OFFICIALS
ARE IMMUNE FROM DAMAGE SUITS UNDER 1983.  WE THINK THERE MUST BE A
DEGREE OF IMMUNITY IF THE WORK OF THE SCHOOLS IS TO GO FORWARD; AND,
HOWEVER WORDED, THE IMMUNITY MUST BE SUCH THAT PUBLIC SCHOOL OFFICIALS
UNDERSTAND THAT ACTION TAKEN IN THE GOOD-FAITH FULFILLMENT OF THEIR
RESPONSIBILITIES AND WITHIN THE BOUNDS OF REASON UNDER ALL THE
CIRCUMSTANCES WILL NOT BE PUNISHED AND THAT THEY NEED NOT EXERCISE
THEIR DISCRETION WITH UNDUE TIMIDITY. 

     " PUBLIC OFFICIALS, WHETHER GOVERNORS, MAYORS OR POLICE,

  LEGISLATORS OR JUDGES, WHO FAIL TO MAKE DECISIONS WHEN THEY ARE

  NEEDED OR WHO DO NOT ACT TO IMPLEMENT DECISIONS WHEN THEY ARE

  MADE DO NOT FULLY AND FAITHFULLY PERFORM THE DUTIES OF THEIR

  OFFICES.  IMPLICIT IN THE IDEA THAT OFFICIALS HAVE SOME

  IMMUNITY--, ABSOLUTE OR QUALIFIED--, FOR THEIR ACTS, IS A

  RECOGNITION THAT THEY MAY ERR.  THE CONCEPT OF IMMUNITY ASSUMES

  THIS AND GOS ON TO ASSUME THAT IT IS BETTER TO RISK SOME ERROR

  AND POSSIBLE INJURY FROM SUCH ERROR THAN NOT TO DECIDE OR ACT AT

ALL."  SCHEUER V. RHODES, 416 U.S., AT 241 - 242 (FOOTNOTE

 OMITTED). 

THE DISAGREEMENT BETWEEN THE COURT OF APPEALS AND THE DISTRICT COURT
OVER THE IMMUNITY STANDARD IN THIS CASE HAS BEEN PUT IN TERMS OF AN
"OBJECTIVE" VERSUS A "SUBJECTIVE" TEST OF GOOD FAITH.  AS WE SEE IT,
THE APPROPRIATE STANDARD NECESSARILY CONTAINS ELEMENTS OF BOTH.  THE
OFFICIAL HIMSELF MUST BE ACTING SINCERELY AND WITH A BELIEF THAT HE IS
DOING RIGHT, BUT AN ACT VIOLATING A STUDENT'S CONSTITUTIONAL RIGHTS CAN
BE NO MORE JUSTIFIED BY IGNORANCE OR DISREGARD OF SETTLED, INDISPUTABLE
LAW ON THE PART OF ONE ENTRUSTED WITH SUPERVISION OF STUDENTS' DAILY
LIVES THAN BY THE PRESENCE OF ACTUAL MALICE.  TO BE ENTITLED TO A
SPECIAL EXEMPTION FROM THE CATEGORICAL REMEDIAL LANGUAGE OF 1983 IN A
CASE IN WHICH HIS ACTION VIOLATED A STUDENT'S CONSTITUTIONAL RIGHTS, A
SCHOOL BOARD MEMBER, WHO HAS VOLUNTARILY UNDERTAKEN THE TASK OF
SUPERVISING THE OPERATION OF THE SCHOOL AND THE ACTIVITIES OF THE
STUDENTS, MUST BE HELD TO A STANDARD OF CONDUCT BASED NOT ONLY ON
PERMISSIBLE INTENTIONS, BUT ALSO ON KNOWLEDGE OF THE BASIC,
UNQUESTIONED CONSTITUTIONAL RIGHTS OF HIS CHARGES.  SUCH A STANDARD
NEITHER IMPOSES AN UNFAIR BURDEN UPON A PERSON ASSUMING A RESPONSIBLE
PUBLIC OFFICE REQUIRING A HIGH DEGREE OF INTELLIGENCE AND JUDGMENT FOR
THE PROPER FULFILLMENT OF ITS DUTIES, NOR AN UNWARRANTED BURDEN IN
LIGHT OF THE VALUE WHICH CIVIL RIGHTS HAVE IN OUR LEGAL SYSTEM.  ANY
LESSER STANDARD WOULD DENY MUCH OF THE PROMISE OF 1983.  THEREFORE, IN
THE SPECIFIC CONTEXT OF SCHOOL DISCIPLINE, WE HOLD THAT A SCHOOL BOARD
MEMBER IS NOT IMMUNE FROM LIABILITY FOR DAMAGES UNDER 1983 IF HE KNEW
OR REASONABLY SHOULD HAVE KNOWN THAT THE ACTION HE TOOK WITHIN HIS
SPHERE OF OFFICIAL RESPONSIBILITY WOULD VIOLATE THE CONSTITUTIONAL
RIGHTS OF THE STUDENT AFFECTED, OR IF HE TOOK THE ACTION WITH THE
MALICIOUS INTENTION TO CAUSE A DEPRIVATION OF CONSTITUTIONAL RIGHTS OR
OTHER INJURY TO THE STUDENT.  THAT IS NOT TO SAY THAT SCHOOL BOARD
MEMBERS ARE "CHARGED WITH PREDICTING THE FUTURE COURSE OF
CONSTITUTIONAL LAW."  PIERSON V. RAY, 386 U.S., AT 557.  A COMPENSATORY
AWARD WILL BE APPROPRIATE ONLY IF THE SCHOOL BOARD MEMBER HAS ACTED
WITH SUCH AN IMPERMISSIBLE MOTIVATION OR WITH SUCH DISREGARD OF THE
STUDENT'S CLEARLY ESTABLISHED CONSTITUTIONAL RIGHTS THAT HIS ACTION
CANNOT RESONABLY BE CHARACTERIZED AS BEING IN GOOD FAITH. 

        III 

THE COURT OF APPEALS, BASED UPON ITS REVIEW OF THE FACTS BUT WITHOUT
THE BENEFIT OF THE TRANSCRIPT OF THE TESTIMONY GIVEN AT THE FOUR-DAY
TRIAL TO THE JURY IN THE DISTRICT COURT, /13/ FOUND THAT THE BOARD HAD
MADE ITS DECISION TO EXPEL THE GIRLS ON THE BASIS OF NO EVIDENCE THAT
THE SCHOOL REGULATION HAD BEEN VIOLATED: 

     " TO JUSTIFY THE SUSPENSION, IT WAS NECESSARY FOR THE BOARD TO

  ESTABLISH THAT THE STUDENTS POSSESED OR USED AN 'INTOXICATING'

  BEVERAGE AT A SCHOOL-SPONSORED ACTIVITY.  NO EVIDENCE WAS

  PRESENTED AT EITHER MEETING TO ESTABLISH THE ALCOHOLIC CONTENT OF

THE LIQUID BROUGHT TO THE CAMPUS.  MOREOVER, THE BOARD MADE NO

  FINDING THAT THE LIQUID WAS INTOXICATING.  THE ONLY EVIDENCE AS

  TO THE NATURE OF THE DRINK WAS THAT SUPPLIED BY THE GIRLS, AND IT

  IS CLEAR THAT THEY DID NOT KNOW WHETHER THE BEVERAGE WAS

  INTOXICATING OR NOT."  485 F.2D, AT 190. 

ALTHOUGH IT DID NOT CITE THE CASE AS AUTHORITY, THE COURT OF APPEALS
WAS APPARENTLY APPLYING THE DUE PROCESS RATIONALE OF THOMPSON V. CITY
OF LOUISVILLE, 362 U.S. 199, 206 (1960), /14/ TO THE PUBLIC SCHOOL
DISCIPLINARY PROCESS.  THE APPLICABILITY OF THOMPSON IN THIS SETTING,
HOWEVER, IS AN ISSUE THAT NEED NOT BE REACHED IN THIS CASE.  /15/ THE
RECORD REVEALS THAT THE DECISION OF THE COURT OF APPEALS WAS BASED UPON
AN ERRONEOUS CONSTRUCTION OF THE SCHOOL REGULATION IN QUESTION.  ONCE
THAT REGULATION IS PROPERLY CONSTRUED, THE THOMPSON ISSUE DISAPPEARS. 

THE COURT OF APPEALS INTERPRETED THE SCHOOL REGULATION PROHIBITING
THE USE OR POSSESSION OF INTOXICATING BEVERAGES AS BEING LINKED TO THE
DEFINITION OF "INTOXICATING LIQUOR" UNDER ARKANSAS STATUTES /16/ WHICH
RESTRICT THE TERM TO BEVERAGES WITH AN ALCOHOLIC CONTENT EXCEEDING 5%
BY WEIGHT.  /17/ TESTIMONY AT THE TRIAL, HOWEVER, ESTABLISHED
CONVINCINGLY THAT THE TERM "INTOXICATING BEVERAGE" IN THE SCHOOL
REGULATION WAS NOT INTENDED AT THE TIME OF ITS ADOPTION IN 1967 TO BE
LINKED TO THE DEFINITION IN THE STATE STATUTES OR TO ANY OTHER
TECHNICAL DEFINITION OF "INTOXICATING."  /18/ THE ADOPTION OF THE
REGULATION WAS AT A TIME WHEN THE SCHOOL BOARD WAS CONCERNED WITH A
PREVIOUS BEER-DRINKING EPISODE.  /19/  IT WAS APPLIED PRIOR TO
RESPONDENTS' CASE TO ANOTHER STUDENT CHARGED WITH POSSESSION OF BEER. 
/200 IN ITS STATEMENT OF FACTS ISSUED PRIOR TO THE ONSET OF THIS
LITIGATION, THE SCHOOL BOARD EXPRESSED ITS CONSTRUCTION OF THE
REGULATION BY FINDING THAT THE GIRLS HAD BROUGHT AN "ALCOHOLIC
BEVERAGE" ONTO SCHOOL PREMISES.  /21/ THE GIRLS THEMSELVES ADMITTED
KNOWING AT THE TIME OF THE INCIDENT THAT THEY WERE DOING SOMETHING
WRONG WHICH MIGHT BE PUNISHED.  /22/ IN LIGHT OF THIS EVIDENCE, THE
COURT OF APPEALS WAS ILL ADVISED TO SUPPLANT THE INTERPRETATION OF THE
REGULATION OF THOSE OFFICERS WHO ADOPTED IT AND ARE ENTRUSTED WITH ITS
ENFORCEMENT.  CF. GRAYNED V. CITY OF ROCKFORD, 408 U.S. 104, 110
(1972). 

WHEN THE REGULATION IS CONSTRUED TO PROHIBIT THE USE AND POSSESSION
OF BEVERAGES CONTAINING ALCOHOL, THERE WAS NO ABSENCE OF EVIDENCE
BEFORE THE SCHOOL BOARD TO PROVE THE CHARGE AGAINST RESPONDENTS.  THE
GIRLS HAD ADMITTED THAT THEY INTENDED TO "SPIKE" THE PUNCH AND THAT
THEY HAD MIXED MALT LIQUOR INTO THE PUNCH THAT WAS SERVED.  THE THIRD
GIRL ESTIMATED AT THE TIME OF THEIR ADMISSIONS TO WALLER THAT THE MALT
LIQUOR HAD AN ALCOHOL CONTENT OF 20%.  AFTER THE EXPUPLSION DECISION
HAD BEEN MADE AND THIS LITIGATION HD BEGUN, IT WAS CONCLUSIVELY
DETERMINED THAT THE MALT LIQUOR IN FACT HAD AN ALCOHOL CONTENT NOT
EXCEEDING 3.2% BY WEIGHT.  /23/  TESTIMONY AT TRIAL PUT THE ALCOHOL
CONTENT OF THE PUNCH SERVED AT 0.91%.  /24/ 

GIVEN THE FACT THAT THERE WAS EVIDENCE SUPPORTING THE CHARGE AGAINST
RESPONDENTS, THE CONTRARY JUDGMENT OF THE COURT OF APPEALS IS
IMPROVIDENT.  IT IS NOT THE ROLE OF THE FEDERAL COURTS TO SET ASIDE
DECISIONS OF SHCOOL ADMINISTRATORS WHICH THE COURT MAY VIEW AS LACKING
A BASIS IN WISDOM OR COMPASSION.  PUBLIC HIGH SCHOOL STUDENTS DO HAVE
SUBSTANTIVE AND PROCEDURAL RIGHTS WHILE AT SCHOOL.  SEE TINKER V. DES
MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S. 503 (1969); WEST
VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624 (1973_;
GOSS V. LOPEZ, 419 U.S. 565 (1975).  BUT 1983 DOES NOT EXTEND THE RIGHT
TO RELITIGATE IN FEDERAL COURT EVIDENTIARY QUESTIONS ARISING IN SCHOOL
DISCIPLINARY RECEEDINGS OR THE PROPER CONSTRUCTION OF SCHOOL
REGULATIONS.  THE SYSTEM OF PUBLIC EDUCATION THAT HAS EVOLVED IN THIS
NATION RELIES NECESSARILY UPON THE DISCRETION AND JUDGMENT OF SCHOOL
ADMINISTRATORS AND SCHOOL BOARD MEMBERS, AND 1983 WAS NOT INTENDED TO
BE A VEHICLE FOR FEDERAL COURT CORRECTION OF ERRORS IN THE EXERCISE OF
THAT DISCRETION WHICH DO NOT RISE TO THE LEVEL OF VIOLATIONS OF
SPECIFIC CONSTITUTIONAL GUARANTEES.  SEE EPPERSON V. ARKANSAS, 393 U.S.
97, 104 (1968); TINKER, SUPRA, AT 507. 

        IV 

RESPONDENTS' COMPLAINT ALLEGED THAT THEIR PROCEDURAL DUE PROCESS
RIGHTS WERE VIOLATED BY THE ACTION TAKEN BY PETITIONERS.  APP. 9.  THE
DISTRICT COURT DID NOT DISCUSS THIS CLAIM IN ITS FINAL OPINION, BUT THE
COURT OF APPEALS VIEWED IT AS PRESENTING A SUBSTANTIAL QUESTION.  IT
CONCLUDED THAT THE GIRLS WERE DENIED PROCEDURAL DUE PROCESS AT THE
FIRST SCHOOL BOARD MEETING, BUT ALSO INTIMATED THAT THE SECOND MEETING
MAY HAVE CURED THE INITIAL PROCEDURAL DEFICIENCIES.  HAVING FOUND A
SUBSTANTIVE DUE PROCESS VIOLATION, HOWEVER, THE COURT DID NOT REACH A
CONCLUSION ON THIS PROCEDURAL ISSUE.  485 F.2D, AT 190. 

RESPONDENTS HAVE ARGUED HERE THAT THERE WAS A PROCEDURAL DUE PROCESS
VIOLATION WHICH ALSO SUPPORTS THE RESULT REACHED BY THE COURT OF
APPEALS.  BRIEF FOR RESPONDENTS 27 - 28, 36.  BUT BECAUSE THE DISTRICT
COURT DID NOT DISCUSS IT, AND THE COURT OF APPEALS DID NOT DECIDE IT,
IT WOULD BE PREFERABLE TO HAVE THE COURT OF APPEALS CONSIDER THE ISSUE
IN THE FIRST INSTANCE. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

SO ORDERED. 

/1/ THE COURT OF APPEALS AFFIRMED THE DIRECTED VERDICTS AWARDED BY
THE DISTRICT COURT TO P.T. WALLER, THE PRINCIPAL OF MENA PUBLIC HIGH
SCHOOL AT THE TIME IN QUESTION, S.L. INLOW, THEN SUPERINTENDNET OF
SCHOOLS, AND THE MENA SPECIAL SCHOOL DISTRICT.  485 F.2D 186, 191 (CA8
1973).  SINCE RESPONDENTS HAVE NOT CROSS-PETITIONED, THE CASES OF THESE
THREE PARTIES ARE NOT BEFORE THE COURT. 

/2/ THE COURT OF APPEALS NOTED THAT REINSTATEMENT WAS NO LONGER
POSSIBLE SINCE THE TERM OF EXPULSION HAD ENDED, BUT THAT THE
RESPONDENTS WERE ENTITLED TO HAVE THE RECORDS OF THE EXPULSIONS
EXPUNGED AND TO BE RELIEVED OF ANY OTHER CONTINUING PUNISHMENT, IF
ANY.  ID., AT 190. 

/3/ "3.  SUSPENSION 

"B.  VALID CAUSES FOR SUSPENSION FROM SCHOOL ON FIRST OFFENSE:
PUPILS FOUND TO BE GUILTY OF ANY OF THE FOLLOWING SHALL BE SUSPENDED
FROM SCHOOL ON THE FIRST OFFENSE FOR THE BALANCE OF THE SEMESTER AND
SUCH SUSPENSION WILL BE NOTED ON THE PERMANENT RECORD OF THE STUDENT
ALONG WITH REASON FOR SUSPENSION. 

"(4) THE USE OF INTOXICATING BEVERAGE OR POSSESSION OF SAME AT
SCHOOL OR AT A SCHOOL SPONSORED ACTIVITY."  APP.  102. 

/4/ " FACTS FOUND BY SCHOOL BOARD 

"1.  THAT VIRGINIA CRAIN, PEGGY STRICKLAND AND JO WALL ARE STUDENTS
OF MENA HIGH SCHOOL AND SUBJECT TO THE GOVERNING RULES AND POLICIES OF
MENA HIGH SCHOOL. 

"2.  THAT ON OR ABOUT FEBRUARY 7, 1972 THESE THREE GIRLS WERE
CHARGED WITH THE RESPONSIBILITY OF PROVIDING REFRESHMENTS FOR A SCHOOL
FUNCTION, BEING A GATHERING OF STUDENTS OF THE HOME ECONOMIC CLASS AND
SOME OF THEIR PARENTS, ON SCHOOL PREMISES, BEING THE AUDITORIUM
BUILDING OF MENA HIGH SCHOOL, AND BEING UNDER THE DIRECTION OF MRS.
CURTIS POWELL. 

"3.  THAT THE THREE GIRLS IN QUESTION TRAVELED TO OKLAHOMA,
PURCHASED A NUMBER OF BOTTLES OF MALT LIQUOR, A BEER TYPE BEVERAGE, AND
LATER WENT ONTO SCHOOL PREMISES WITH THE SLCOHOLIC BEVERAGE AND PUT TWO
OR MORE OF THE BOTTLES OF THE DRINK INTO THE PUNCH OR LIQUID
REFRESHMENT WHICH WAS TO BE SERVED TO MEMBERS OF THE CLASS AND
PARENTS."  APP.  137. 

THE COURT OF APPEALS IN ITS STATEMENT OF THE FACTS OBSERVED THAT THE
MALT LIQUOR AND SOFT DRINKS WERE MIXED BY THE GIRLS PRIOR TO THEIR
RETURN TO SCHOOL, 485 F.2D, AT 187, AND PETITIONERS IN THEIR BRIEF
RECITE THE FACTS IN THIS MANNER.  BRIEF FOR PETITIONERS 5.  THIS
DISCREPANCY IN THE BOARD'S FINDINGS OF FACT IS NOT MATERIAL TO ANY
ISSUE NOW BEFORE THE COURT. 

/5/ BY TAKING A CORRESPONDENCE COURSE AND AN EXTRA COURSE LATER, THE
GIRLS WERE ABLE TO GRADUATE WITH THEIR CLASS.  TR. OF ORAL ARG. 3, -
39. 

/6/ IN THEIR ORIGINAL COMPLAINT, RESPONDENTS SOUGHT ONLY INJUNCTIVE
AND DECLARATORY RELIEF.  APP. 11 - 12.  IN THEIR AMENDED COMPLAINT,
THEY ADDED A PRAYER FOR COMPENSATORY AND PUNITIVE DAMAGES.  ID., AT
92.  TRIAL WAS TO A JURY; AND THE DISTRICT COURT IN RULING ON MOTIONS
AFTER DECLARING A MISTRIAL APPEARS TO HAVE TREATED THE CASE AS HAVING
DEVELOPED INTO ONE FOR DAMAGES ONLY SINCE IT ENTERED JUDGMENT FOR
PETITIONERS AND DISMISSED THE COMPLAINT ON THE BASIS OF THEIR GOOD
FAITH DEFENSE.  IN A JOINT MOTION FOR A NEW TRIAL, RESPONDENTS
SPECIFICALLY ARGUED THAT THE DISTRICT COURT HAD ERRED INTREATING THE
CASE AS ONE FOR THE RECOVERY OF DAMAGES ONLY AND IN FAILING TO GIVE
THEM A TRIAL AND RULING ON THEIR CLAIMS FOR INJUNCTIVE AND DECLARATORY
RELIEF.  ID., AT 131.  THE DISTRICT COURT DENIED THE MOTION.  ID., AT
133.  UPON APPEAL, RESPONDENTS RENEWED THESE CONTENTIONS, AND THE COURT
OF APPEALS, AFTER FINDING A SUBSTANTIVE DUE PROCESS VIOLATION, DIRECTED
THE DISTRICT COURT TO GIVE RESPONDENTS AN INJUNCTION REQUIRING
EXPUNCTION OF THE EXPULSION RECORDS AND RESTRAINING ANY FURTHER
CONTINUING PUNISHMENT.  485 F.2D, AT 190.  IN THEIR BRIEF IN THIS COURT
PETITIONERS URGE THAT WE REVERSE THE COURT OF APPEALS AND ORDER THE
COMPLAINT DISMISSED.  BRIEF FOR PETITIONERS 48.  RESPONSENTS, HOWEVER,
AGAIN STRESS THAT THE RELIEF THEY SOUGHT INCLUDED EQUITABLE RELIEF. 
BRIEF FOR RESPONDENTS 47 - 48, 50.     IN LIGHT OF THE RECORD IN THIS
CASE, WE ARE UNCERTAIN AS TO THE BASIS FOR THE DISTRICT COURT'S
JUDGMENT, FOR IMMUNITY FROM DAMAGES DOES NOT ORDINARILY BAR EQUITABLE
RELIEF AS WELL.  THE OPINION OF THE COURT OF APPEALS DOES NOT ENTIRELY
DISPEL THIS UNCERTAINTY.  WITH THE CASE IN THIS POSTURE, IT IS THE
BETTER COURSE TO PROCEED DIRECTLY TO THE QUESTION OF THE IMMUNITY OF
SCHOOL BOARD MEMBERS UNDER 1983. 

/7/ IN MC LAUGHLIN V. TILENDIS, 398 F. 2D 287, 290 - 291 (CA7 1968),
A CASE RELIED UPON BY THE COURT OF APPEALS BELOW, THE IMMUNITY WAS
EXTENDED TO SCHOOL BOARD MEMBERS AND THE SUPERINTENDENT OF SCHOOLS ONLY
TO THE EXTENT THAT THEY COULD ESTABLISH THAT THEIR DECISIONS WERE
FOUNDED ON "JUSTIFIABLE GROUNDS."  CF. SCOVILLE V. BOARD OF ED. OF
JOLIET TOWNSHIP, 425 F. 2D 10, 15 (CA7), CERT. DENIED, 400 U.S. 826
(1970).  IN SMITH V. LOSEE, 485 F. 2D 334, 344 (CA10 1973) (EN BANC),
CERT. DENIED, 417 U.S. 908 (1974), THE IMMUNITY PROTECTING UNIVERSITY
OFFICIALS WAS DESCRIBED AS ONE OF GOOD FAITH AND THE ABSENCE OF MALICE
WHERE THE FACTS BEFORE THE OFFICIALS "SHOWED A GOOD AND VALID REASON
FOR THE DECISION ALTHOUGH ANOTHER REASON OR REASONS ADVANCED FOR
NONRENEWAL OR DISCHARGE MAY HAVE BEEN CONSTITUTIONALLY IMPERMISSIBLE." 
THE DISTRICT COURT IN KIRSTEIN V. RECTOR AND VISITORS OF UNIVERSITY OF
VIRGINIA, 309 F. SUPP. 184, 189 (ED VA. 1970), EXTENTED THE IMMUNITY TO
ACTION TAKEN IN GOOD FAITH AND IN ACCORDANCE WITH "LONG STANDING LEGAL
PRINCIPLE."  SEE ALSO SKEHAN V. BOARD OF TRUSTEES OF BLOOMSBURG STATE
COLLEGE, 501 F. 2D 31, 43 (CA3 1974); HANDVERGER V. HARVILL, 479 F.2D
513, 516 CA9), CERT. DENIED, 414 U.S. 1072 (1973); WOOD V. GOODMAN, 381
F.SUPP.  413, 419 (MASS. 1974); THONEN V. JENKINS, 374 F.SUPP.  134,
140 (EDNC 1974); TALIAFERRO V. STATE COUNCIL OF HIGHER EDUCATION, 372
F.SUPP.  1378, 1382 - 1383 (ED VA. 1974); VANDERZANDEN V. LOWELL SCHOOL
DISTRICT NO. 71, 369 F.SUPP.  67, 72 (ORE.  1973); JONES V. JEFFERSON
COUNTY BOARD OF EDUCATION, 359 F.SUPP.  1081, 1083 - 1084 (ED TENN.
1972); ADAMIAN V. UNIVERSITY OF NEVADA, 359 F.SUPP.  825, 834 (NEV.
1973); BOYD V. SMITH, 353 F.SUPP.  844, 845 - 846 (ND IND. 1973); HAYES
V. CAPE HENLOPEN SCHOOL DISTRICT, 341 F.SUPP 823, 829 (DEL. 1973);
SCHREIBER V. JOINT SCHOOL DISTRICT NO. 1, GIBRALTAR, WIS., 335 F.SUPP. 
745, 748 (ED WIS. 1972); ENDICOTT V. VAN PETTEN, 330 F.SUPP.  878, 885
886 (KAN. 1971); HOLLIMAN V. MARTIN, 330 F.SUPP.  1, 13 (WD VA. 1971);
MC DONOUGH V. KELLY, 329 F.SUPP.  144, 150 - 151 (NH 1971); CORDOVA V.
CHONKO, 315 F.SUPP.  953, 964 (HD OHIO 1970); GOUGE V. JOINT SCHOOL
DISTRICT NO 1, 310 F.SUPP.  984, 990, 992 - 993 (WD WIS. 1970). 

/8/ DID CONGRESS BY THE GENERAL LANGUAGE OF ITS 1871 STATUTE MEAN TO
OVERTURN THE TRADITION OF LEGISLATIVE FREEDOM ACHIEVED IN ENGLAND BY
CIVIL WAR AND CAREFULLY PRESERVED IN THE FORMATION OF STATES AND
NATIONAL GOVERNMENTS HERE?  DID IT MEAN TO SUBJECT LEGISLATORS TO CIVIL
LIABILITY FOR ACTS DONE WITHIN THE SPHERE OF LEGISLATIVE ACTIVITY?  LET
US ASSUME, MERELY FOR THE MOMENT, THAT CONGRESS HAS CONSTITUTIONAL
POWER TO LIMIT THE FREEDOM OF STATE LEGISLATORS ACTING WITHIN THEIR
TRADITIONAL SPHERE.  THAT WOULD BE A BIG ASSUMPTION.  BUT WE WOULD HAVE
TO MAKE AN EVEN RASHER ASSUMPTION TO FIND THAT CONGRESS THOUGHT IT HAD
EXERCISED THE POWER.  THESE ARE DIFFICULTIES WE CANNOT HURDLE.  THE
LIMITS OF 1 AND 2 OF THE 1871 STATUTE . . . WERE NOT SPELLED OUT IN
DEBATE.  WE CANNOT BELIEVE THAT CONGRESS--, ITSELF A STAUNCH ADVOCATE
OF LEGISLATIVE FREEDOM--, WOULD IMPINGE ON A TRADITION SO WELL GROUNDED
IN HISTORY AND REASON BY COVERT INCLUSION IN THE GENERAL LANGUAGE
BEFORE US."  TENNEY V. BRANDHOVE, 341 U.S. 367, 376 (1951). 

/9/ SEE DONAHOE V. RICHARDS, 38 ME. 379 (1854); DRITT V. SNODGRASS,
66 MO. 286 (1877); MC CORMICK V. BURT, 95 ILL. 263 (1880); BOARD OF
EDUCATION OF CARTERSVILLE V. PURSE, 101 GA. 422, 28 S.E. 896 (1897):
BOARD OF ED. OF CITY OF COVINGTON V. BOOTH, 110 KY. 807, 62 S.W. 872
(1901); MORRISON V. CITY OF LAWRENCE, 181 MASS. 127, 63 N.E. 400
(1902); SORRELS V. MATTHEWS, 129 GA. 319, 58 S.E. 819 (1907); DOUGLASS
V. CAMPBELL, 89 ARK. 254, 116 S.W. 211 (1909); BARNARD V. SHELBURNE,
216 MASS. 19, 102 N.E. 1095 (1913); SWEENEY V. YOUNG, 82 N.H. 159, 131
A. 155 (1925) (ABSOLUTE IMMUNITY FOR ACTS TAKEN WITHIN RANGE OF GENERAL
AUTHORITY).  SEE ALSO 68 AM. JUR.  2D, SCHOOLS 268, PP. 592 - 593
(1973); 79 C.J.S., SCHOOL AND SCHOOL DISTRICT 503(D), P. 451 (1952); W.
PROSSER, LAW OF TORTS 132, P. 989 (4TH ED. 1971); R. HAMILTON & E.
REUTTER, LEGAL ASPECTS OF SCHOOL BOARD OPERATION 190 - 191 (1958). 

/10/ SEE GENERALLY R. CAMPBELL, L. CUNNINGHAM, & R. MC PHEE, THE
ORGANIZATION AND CONTROL OF AMERICAN SCHOOLS 177 - 182 (1965). 

/11/ THE OVERWHELMING MAJORITY OF SCHOOL BOARD MEMBERS ARE ELECTED
TO OFFICE.  SEE A. WHITE, LOCAL SCHOOL BOARDS:  ORGANIZATION AND
PRACTICES 8 (U.S. OFFICE OF EDUCATION, OE -23023, BULLETIN NO. 8,
1962); NATIONAL SCHOOL BOARDS ASSOCIATION, SURVEY OF PUBLIC EDUCATION
IN THE MEMBER CITIES OF THE COUNCIL OF BIG CITY BOARDS OF EDUCATION 3
(NOV. 1968); CAMPBELL, CUNNINGHAM, & MC PHEE, SUPRA, N. 10, AT 164 -
170.  MOST OF THE SCHOOL BOARD MEMBERS ACROSS THE COUNTRY RECEIVE
LITTLE OR NO MONETARY COMPENSATION FOR THEIR SERVICE.  WHITE, SUPRA, AT
67 - 79; NATIONAL SCHOOL BOARDS ASSOCIATION, SUPRA, AT 3, 15 - 21;
CAMPBELL, CUNNINGHAM, & MC PHEE, SUPRA, AT 172. 

/12/ "(SCHOOL DIRECTORS) ARE AUTHORIZED, AND IT IS THEIR DUTY TO
ADOPT REASONABLE RULES FOR THE GOVERNMENT AND MANAGEMENT OF THE SCHOOL,
AND IT WOULD DETER RESPONSIBLE AND SUITABLE MEN FROM ACCEPTING THE
POSITION, IF HELD LIABLE FOR DAMAGES TO A PUPIL EXPELLED UNDER A RULE
ADOPTED BY THEM, UNDER THE IMPRESSION THAT THE WELFARE OF THE SCHOOL
DEMANDED IT, IF THE COURTS SHOULD DEEM IT IMPROPER."  DRITT V.
SNODGRASS, 66 MO., AT 293. 

/13/ AT THE TIME OF THE COURT OF APPEALS DECISION, THE TESTIMONY AT
THE TRIAL TO THE JURY HAD NOT BEEN TRANSCRIBED BECAUSE OF COUNSEL'S
CONCERN WITH LIMITING LITIGATION COSTS.  TR. OF ORAL ARG. 23.  THE
TRANSCRIPT WAS FILED IN THE DISTRICT COURT AFTER CERTIORARI WAS
GRANTED.  APP. 120 N. 2. 

/14/ SEE ALSO VACHON V. NEW HAMPSHIRE, 414 U.S. 478, 480 (1974);
GREGORY V. CHICAGO, 394 U.S. 111, 112 (1969); JOHNSON V. FLORIDA, 391
U.S. 596, 598 - 599 (1968); SHUTTLESWORTH V. CITY OF BIRMINGHAM, 382
U.S. 87, 94 - 95 (1965); GARNER V. LOUISIANA, 368 U.S. 157 (1961).  CF.
BOILERMAKERS V. HARDEMAN, 401 U.S. 233, 246 (1971). 

/15/ THAT IS NOT TO SAY THAT THE REQUIREMENTS OF PROCEDURAL DUE
PROCESS DO NOT ATTACH TO EXPULSIONS.  OVER THE PAST 13 YEARS THE COURTS
OF APPEALS HAVE WITHOUT EXCEPTION HELD THAT PROCEDURAL DUE PROCESS
REQUIREMENTS MUST BE SATISFIED IF A STUDENT IS TO BE XPELLED.  SEE GOSS
V. LOPEZ, 419 U.S. 565, 576 - 578, N. 8 (1975). 

/16/ SEE ARK. STAT. ANN. 48 - 107, 48 - 503 (1964). 

/17/ THE COURT OF APPEALS REFERRED TO COMMENTS WHICH SEEMED ALSO TO
ADOPT THIS CONSTRUCTION MADE BY THE DISTRICT COURT IN ITS FINDINGS OF
FACT WHEN IT DENIED RESPONDENTS' MOTION FOR A PRELIMINARY INJUNCTION. 
485 F.2D, AT 190; APP. 80.  AFTER NOTING THE DISTRICT COURT'S INITIAL
VIEW THAT PETITIONERS WOULD FIND IT DIFFICULT TO PROVE THE REQUISITE
ALCOHOLIC CONTENT, THE COURT OF APPEALS EXPRESSED PUZZLEMENT AT THE
FAILURE OF THE LOWER COURT TO DISCUSS THE ABSENCE OF SUCH EVIDENCE IN
ITS FINAL OPINION.  THE DISTRICT COURT, HOWEVER, INDICATED IN ITS
INSTRUCTIONS THAT THE QUESTION OF THE PROPER CONSTRUCTION OF THE
REGULATION WOULD NOT BE RELEVANT IF THE JURY FOUND THAT THE SCHOOL
OFFICIALS IN GOOD FAITH CONSIDERED THE MALT LIQUOR AND PUNCH TO FALL
WITHIN THE REGULATION.  348 F.SUPP.  AT 248.  THE DISTRICT COURT'S
ULTIMATE CONCLUSION APPARENTLY MADE UNNECESSARY A FINAL DECISION ON THE
COVERAGE OF THE REGULATION. 

DESPITE ITS CONSTRUCTION OF THE PRESENT REGULATION, THE COURT OF
APPEALS INDICATED THAT THE SCHOOL BOARD HAD THE AUTHORITY TO PROHIBIT
THE USE AND POSSESSION OF ALCOHOLIC BEVERAGES OR TO CONTINUE ITS POLICY
OF PROSCRIBING ONLY INTOXICATING BEVERAGES.  485 F.2D, AT 191. 

/18/ TWO MEMBERS OF THE SCHOOL BOARD AT THE TIME THAT THE REGULATION
WAS ADOPTED TESTIFIED THAT THERE HAD BEEN NO DISCUSSION OF TYING THE
REGULATION TO THE STATE ALCOHOL CONTROL ACT AND THAT THE INTENT OF THE
BOARD MEMBERS WAS TO COVER BEER.  TR. 466 - 467 (TESTIMONY OF
PETITIONER WOOD); ID., AT 589 - 590 (TESTIMONY OF MRS. GERALD
GOFORTH). 

/19/ SEE THE MINUTES OF THE BOARD MEETING AT WHICH THE REGULATION
WAS ADOPTED IN APP. 103 - 104.  SEE ALSO TR. 431 - 432 (TESTIMONY OF
MRS. MARY L. SPEENCER, ALSO A BOARD MEMBER WHEN THE REGULATION WAS
ADOPTED); ID., AT 587 - 588 (MRS. GOFORTH). 

/20/ THE STUDENT WAS SUSPENDED IN OCTOBER 1971 FOR THE POSSESSION OF
BEER AT A SCHOOL ACTIVITY.  THERE IS NO INDICATION IN THE RECORD OF THE
ALCOHOL CONTENT OF THE BEER.  SEE TR. 258 - 259, 268 - 269 (TESTIMONY
OF FORMER SUPERINTENDENT INLOW). 

/21/ SEE N. 4, SUPRA.  SOON AFTER THIS LITIGATION HAD BEGUN, THE
BOARD ISSUED A STATEMENT WHICH SAID THAT THE REGULATION "PROHIBITS THE
USE AND POSSESSION OF ALCOHOLIC BEVERAGE ON SCHOOL PREMISES . . . ." 
APP. 139. 

/22/ SEE TR. 75 (STRICKLAND); ID., AT 119, 121 (CRAIN). 

/23/ THIS PERCENTAGE CONTENT WAS ESTABLISHED THROUGH THE DEPOSITION
OF AN OFFICER OF THE COMPANY THAT PRODUCES " RIGHT TIME" MALT LIQUOR. 
APP. 93 - 94. 

/24/ TR. 205 (TESTIMONY OF DR. W.F. TURNER). 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE REHNQUIST JOIN, CONCURRING IN PART AND
DISSENTING IN PART. 

I JOIN IN PARTS I, III, AND IV OF THE COURT'S OPINION, AND AGREE
THAT THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE VACATED AND THE
CASE REMANDED.  I DISSENT FROM PART II WHICH APPEARS TO IMPOSE A HIGHER
STANDARD OF CARE UPON PUBLIC SHCOOL OFFICIALS, SUED UNDER 1983, THAN
THAT HERETOFORE REQUIRED OF ANY OTHER OFFICIAL. 

THE HOLDING OF THE COURT ON THE IMMUNITY ISSUE IS SET FORTH IN THE
MARGIN.  /1/ IT WOULD IMPOSE PERSONAL LIABILITY ON A SCHOOL OFFICIAL
WHO ACTED SINCERELY AND IN THE UTMOST GOOD FAITH, BUT WHO WAS FOUND--,
AFTER THE FACT--, TO HAVE ACTED IN "IGNORANCE . . . OF SETTLED,
INDISPUTABLE LAW."  ANTE, AT 321.  OR, AS THE COURT ALSO PUTS IT, THE
SCHOOL OFFICIAL MUST BE HELD TO A STANDARD OF CONDUCT BASED NOT ONLY ON
GOOD FAITH "BUT ALSO ON KNOWLEDGE OF THE BASIC, UNQUESTIONED
CONSTITUTIONAL RIGHTS OF HIS CHARGES."  ANTE, AT 322.  MOREOVER,
IGNORANCE OF THE LAW IS EXPLICITLY EQUATED WITH "ACTUA MALICE."  ANTE,
AT 321.  THIS HARSH STANDARD, REQUIRING KNOWLEDGE OF WHAT IS
CHARACTERIZED AS "SETTLED, INDISPUTABLE LAW," LEAVES LITTLE SUBSTANCE
TO THE DOCTRINE OF QUALIFIED IMMUNITY.  THE COURT'S DECISION APPEARS TO
REST ON AN UNWARRANTED ASSUMPTION AS TO WHAT LAY SCHOOL OFFICIALS KNOW
OR CAN KNOW ABOUT THE LAW AND CONSTITUTIONAL RIGHTS.  THESE OFFICIALS
WILL NOW ACT AT THE PERIL OF SOME JUDGE OR JURY SUBSEQUENTLY FINDING
THAT A GOOD-FAITH BELIEF AS TO THE APPLICABLE LAW WAS MISTAKEN AND
HENCE ACTIONABLE.  /2/ 

THE COURT STATES THE STANDARD OF REQUIRED KNOWLEDGE IN TWO CRYPTIC
PHRASES:  "SETTLED, INDISPUTABLE LAW" AND "UNQUESTIONED CONSTITUTIONAL
RIGHTS."  PRESUMABLY THESE ARE INTENDED TO MEAN THE SAME THING,
ALTHOUGH THE MEANING OF NEITHER PHRASE IS LIKELY TO BE SELF-EVIDENT TO
CONSTITUTIONAL LAW SCHOLARS--, MUCH LESS THE AVERAGE SCHOOL BOARD
MEMBER.  ONE NEED ONLY LOOK TO THE DECISIONS OF THIS COURT--, TO OUR
REVERSALS, OUR RECOGNITION OF EVOLVING CONCEPTS, AND OUR FIVE-TO-FOUR
SPLITS--, TO RECOGNIZE THE HAZARD OF EVEN INFORMED PROPHECY AS TO WHAT
ARE "UNQUESTIONED CONSTITUTIONAL RIGHTS."  CONSIDER, FOR EXAMPLE, THE
RECENT FIVE-TO-FOUR DECISION IN GOSS V. LOPEZ, 419 U.S. 565, (1975),
HOLDING THAT A JUNIOR HIGH SCHOOL PUPIL ROUTINELY SUSPENDED FOR AS MUCH
AS A SINGLE DAY IS ENTITLED TO DUE PROCESS.  I SUGGEST THAT MOST
LAWYERS AND JUDGES WOULD HAVE THOUGHT, PRIOR TO THAT DECISION, THAT THE
LAW TO THE CONTRARY WAS SETTLED, INDISPUTABLE, AND UNQUESTIONED.  /3/ 

LESS THAN A YEAR AGO, IN SCHEUER V. RHODES, 416 U.S. 232 (1974), AND
IN AN OPINION JOINED BY ALL PARTICIPATING MEMBERS OF THE COURT, A
CONSIDERABLY LESS DEMANDING STANDARD OF LIABILITY WAS APPROVED WITH
RESPECT TO TWO OF THE HIGHEST OFFICERS OF THE STATE, THE GOVERNOR AND
ADJUTANT GENERAL.  IN THAT CASE, THE ESTATES OF STUDENTS KILLED AT KENT
STATE UNIVERSITY SUED THESE OFFICIALS UNDER 1983.  AFTER WEIGHING THE
COMPETING CLAIMS, THE COURT CONCLUDED: 

     " THESE CONSIDERATIONS SUGGEST THAT, IN VARYING SCOPE, A

  QUALIFIED IMMUNITY IS AVAILABLE TO OFFICERS OF THE EXECUTIVE

  BRANCH OF GOVERNMENT, THE VARIATION BEING DEPENDENT UPON THE

SCOPE OF DISCRETION AND RESPONSIBILITIES OF THE OFFICE AND ALL

  THE CIRCUMSTANCES AS THEY REASONABLY APPEARED AT THE TIME OF THE

  ACTION ON WHICH LIABILITY IS SOUGHT TO BE BASED.  IT IS THE

  EXISTENCE OF REASONABLE GROUNDS FOR THE BELIEF FORMED AT THE TIME

  AND IN LIGHT OF ALL THE CIRCUMSTANCES, COUPLED WITH GOOD-FAITH

  BELIEF, THAT AFFORDS A BASIS FOR QUALIFIED IMMUNITY OF EXECUTIVE

  OFFICERS FOR ACTS PERFORMED IN THE COURSE OF OFFICIAL CONDUCT." 

  ID., AT 247 - 248.  (EMPHASIS ADDED.) 

THE ITALICIZED SENTENCE FROM SCHEUER STATES, AS I VIEW IT, THE
CORRECT STANDARD FOR QUALIFIED IMMUNITY OF A GOVERNMENT OFFICIAL:
WHETHER IN LIGHT OF THE DISCRETION AND RESPONSIBILITIES OF HIS OFFICE,
AND UNDER ALL OF THE CIRCUMSTANCES AS THEY APPEARED AT THE TIME, THE
OFFICER ACTED REASONABLY AND IN GOOD FAITH.  THIS WAS THE STANDARD
APPLIED TO THE GOVERNOR OF A STATE CHARGED WITH MALICIOUSLY CALLING OUT
NATIONAL GUARDSMEN WHO KILLED AND WOUNDED KENT STATE STUDENTS.  /4/
TODAY'S OPINION OFFERS NO REASON FOR IMPSING A MORE SEVERE STANDARD ON
SCHOOL BOARD MEMBERS CHARGED ONLY WITH WRONGFULLY EXPELLING THREE
TEENAGE PUPILS.     THERE ARE SOME 20,000 SHCOOL BOARDS, EACH WITH FIVE
OR MORE MEMBERS AND THOUSANDS OF SCHOOL SUPERINTENDENTS AND SCHOOL
PRINCIPALS.  MOST OF THE SCHOOL BOARD MEMBERS ARE POPULARLY ELECTED,
DRAWN FROM THE CITIZENRY AT LARGE, AND POSSESS NO UNIQUE COMPETENCY IN
DIVINING THE LAW.  FEW CITIES AND COUNTIES PROVIDE ANY COMPENSATION FOR
SERVICE ON SCHOOL BOARDS, AND OFTEN IT IS DIFFICULT TO PERSUADE
QUALIFIED PERSONS TO ASSUME THE BURDENS OF THIS IMPORTANT FUNCTION IN
OUR SOCIETY.  MOREOVER, EVEN IF COUNSEL'S ADVICE CONSTITUTES A DEFENSE,
IT MAY SAFELY BE ASSUMED THAT FEW SCHOOL BOARDS AND SCHOOL OFFICIALS
HAVE READY ACCESS TO COUNSEL OR INDEED HAVE DEEMED IT NECESSARY TO
CONSULT COUNSEL ON THE COUNTLESS DECISIONS THAT NECESSARILY MUST BE
MADE IN THE OPERATION OF OUR PUBLIC SCHOOLS. 

IN VIEW OF TODAY'S DECISION SIGNIFICANTLY ENHANCING THE POSSIBILITY
OF PERSONAL LIABILITY, ONE MUST WONDER WHETHER QUALIFIED PERSONS WILL
CONTINUE IN THE DESIRED NUMBERS TO VOLUNTEER FOR SERVICE IN PUBLIC
EDUCATION. 

/1/ THE DISAGREEMENT BETWEEN THE COURT OF APPEALS AND THE DISTRICT
COURT OVER THE IMMUNITY STANDARD IN THIS CASE HAS BEEN PUT IN TERMS OF
AN 'OBJECTIVE' VERSUS A 'SUBJECTIVE' TEST OF GOOD FAITH.  AS WE SEE IT,
THE APPROPRIATE STANDARD NECESSARILY CONTAINS ELEMENTS OF BOTH.  THE
OFFICIAL HIMSELF MUST BE ACTING SINCERELY OAND WITH A BELIEF THAT HE IS
DOING RIGHT, BUT AN ACT VIOLATING A STUDENT'S CONSTITUTIONAL RIGHTS CAN
BE NO MORE JUSTIFIED BY IGNORANCE OR DISREGARD OF SETTLED, INDISPUTABLE
AW ON THE PART OF ONE ENTRUSTED WITH SUPERVISION OF STUDENTS' DAILY
LIVES THAN BY THE PRESENCE OF ACTUAL MALICE.  TO BE ENTITLED TO A
SPECIAL EXEMPTION FROM THE CATEGORICAL REMEDIAL LANGUAGE OF 1983 IN A
CASE IN WHICH HIS ACTION VIOLATED A STUDENT'S CONSTITUTIONAL RIGHTS, A
SCHOOL BOARD MEMBER, WHO HAS VOLUNTARILY UNDERTAKEN THE TASK OF
SUPERVISING THE OPERATION OF THE SCHOOL AND THE ACTIVITIES OF THE
STUDENTS, MUST BE HELD TO A STANDARD OF CONDUCT BASED NOT ONLY ON
PERMISSIBLE INTENTIONS, BUT ALSO ON KNOWLEDGE OF THE BASIC,
UNQUESTIONED CONSTITUTIONAL RIGHTS OF HIS CHARGES.  SUCH A STANDARD
MEITHER IMPOSES AN UNFAIR BURDEN UPON A PERSON ASSUMING A RESPONSIBLE
PUBLIC OFFICE REQUIRING A HIGH DEGREE OF INTELLIGENCE AND JUDGMENT FOR
THE PROPER FULFILLMENT OF ITS DUTIES, NOR AN UNWARRANTED BURDEN IN
LIGHT OF THE VALUE WHICH CIVIL RIGHTS HAVE IN OUR LEGAL SYSTEM.  ANY
LESSER STANDARD WOULD DENY MUCH OF THE PROMISE OF 1983.  THEREFORE, IN
THE SPECIFIC CONTEXT OF SCHOOL DISCIPLINE, WE HOLD THAT A SCHOOL BOARD
MEMBER IS NOT IMMUNE FROM LIABILITY FOR DAMAGES UNDER 1983 IF HE KNEW
OR REASONABLY SHOULD HAVE KNOWN THAT THE ACTION HE TOOK WITHIN HIS
SPHERE OF OFFICIAL RESPONSIBILITY WOULD VIOLATE THE CONSTITUTIONAL
RIGHTS OF THE STUDENT AFFECTED, OR IF HE TOOK THE ACTION WITH THE
MALICIOUS INTENTION TO CAUSE A DEPRIVATION OF CONSTITUTIONAL RIGHTS OR
OTHER INJURY TO THE STUDENT.  THAT IS NOT TO SAY THAT SHCOOL BOARD
MEMBERS ARE 'CHARGED WITH PREDICTING THE FUTURE COURSE OF
CONSTITUTIONAL LAW.'  PIERSON V. RAY, 386 U.S. (547, 557 (1967).)  A
COMPENSATORY AWARD WILL BE APPROPRIATE ONLY IF THE SCHOOL BOARD MEMBER
HAS ACTED WITH SUCH AN IMPERMISSIBLE MOTIVATION OR WITH SUCH DISREGARD
OF THE STUDENT'S CLEARLY ESTABLISHED CONSTITUTIONAL RIGHTS THAT HIS
ACTION CANNOT REASONABLY BE CHARACTERIZED AS BEING IN GOOD FAITH." 
ANTE, AT 321 - 322. 

/2/ THE OPINION INDICATES THAT ACTUAL MALICE IS PRESUMED WHERE ONE
ACTS IN IGNORANCE OF THE LAW; THUS IT WOULD APPEAR THAT EVEN GOOD-FAITH
RELIANCE ON THE ADVICE OF COUNSEL IS OF NO AVAIL. 

/3/ THE COURT'S RATIONALE IN GOSS SUGGESTS, FOR EXAMPLE, THAT SCHOOL
OFFICIALS MAY INFRINGE A STUDENT'S RIGHT TO EDUCATION IF THEY PLACE HIM
IN A NONCOLLEGE PREPARATORY TRACK OR DENY HIM PROMOTION WITH HIS CLASS
WITHOUT AFFORDING A DUE PROCESS HEARING.  SEE 419 U.S., AT 597 - 599
(1975) (POWELL, J., DISSENTING).  DOES THIS MEAN THAT SCHOOL OFFICIALS
WHO FAIL TO PROVIDE SUCH HEARINGS IN THE FUTURE WILL BE LIABLE UNDER
1983 IF A COURT SUBSEQUENTLY DETERMINES THAT THEY WERE REQUIRED? 

FOR ANOTHER CURRENT EXAMPLE OF HOW UNSETTLED CONSTITUTIONAL LAW,
DEEMED BY SOME AT LEAST TO BE QUITE SETTLED, MAY TURN OUT TO BE, SEE
THE DECISION AND OPINIONS IN NORTH GEORGIA FINISHING, INC. V. DI-CHEM,
INC., 419 U.S. 601 (1975), AND COMPARE WITH MR. JUSTICE STEWART'S
DISSENT IN MITCHELL V. W.T.GRANT CO., 416 U.S. 600, 629 (1974). 

/4/ THE DECISION OF THE COURT IN SCHEUER WITH RESPECT TO QUALIFIED
IMMUNITY IS CONSISTENT WITH MR. CHIEF JUSTICE WARREN'S OPINION FOR THE
COURT IN PIERSON V. RAY, 386 U.S. 547 (1967), WHERE IT WAS SAID:  " IF
THE JURY BELIEVED THE TESTIMONY OF THE OFFICERS AND DISBELIEVED THAT OF
THE MINISTERS, AND IF OTHE JURY FOUND THAT THE OFFICERS REASONABLY
BELIEVED IN GOOD FAITH THAT THE ARREST WAS CONSTITUTIONAL, THEN A
VERDICT FOR THE OFFICERS WOULD FOLLOW EVEN THOUGH THE ARREST WAS IN
FACT UNCONSTITUTIONAL."  ID., AT 557.  AS IN SCHEUER, THE STANDARD
PRESCRIBED IS ONE OF ACTING IN GOOD FAITH IN ACCORDANCE WITH REASONABLE
BELIEF THAT THE ACTION WAS LAWFUL AND JUSTIFIED.  NOT EVEN POLICE
OFFICERS WERE HELD LIABLE FOR IGNORANCE OF "SETTLED, INDISPUTABLE
LAW." 

G. ROSS SMITH ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS HERSCHEL H. FRIDAY. 

BEN CORE ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

F RAYMOND MARKS FILED A BRIEF FOR THE CHILDHOOD AND GOVERNMENT
PROJECT AS AMICUS CURIAE. 
..END :























UNITED STATES V. WILSON, 420 U.S. 332 


       UNITED STATES V. WILSON

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

         NO. 73 - 1395.  ARGUED DECEMBER 9, 1974--, DECIDED
FEBRUARY

           25, 1975; 492 F.2D 1345, REVERSED AND REMANDED. 


    THE JURY ENTERED A GUILTY VERDICT AGAINST RESPONDENT FOR A

  FEDERAL OFFENSE, BUT ON ONE OF RESPONDENT'S POSTVERDICT MOTIONS

  THE DISTRICT COURT DISMISSED THE INDICTMENT ON THE GROUND THAT

  THE DELAY BETWEEN THE OFFENSE AND THE INDICTMENT PREJUDICED

  RESPONDENT'S DELAY BETWEEN THE OFFENSE AND THE INDICTMENT

  PREJUDICED RESPONDENT'S RIGHT TO A FAIR TRIAL.  THE COURT OF

  APPEALS DISMISSED THE GOVERNMENT'S APPEAL ON THE GROUND THAT THE

  DOUBLE JEOPARDY CLAUSE BARRED REVIEW OF THE DISTRICT COURT'S

  RULING.  BECAUSE THE RULING WAS BASED ON FACTS BROUGHT OUT AT THE

  TRIAL, THE COURT OF APPEALS HELD IT WAS IN EFFECT AN ACQUITTAL. 

  HELD:  WHEN A TRIAL JUDGE RULES IN FAVOR OF THE DEFENDANT AFTER A

  GUILTY VERDICT HAS BEEN ENTERED BY THE TRIER OF FACT, THE

  GOVERNMENT MAY APPEAL FROM THAT RULING WITHOUT CONTRACENING THE

  DOUBLE JEOPARDY CLAUSE.  PP. 335 - 353. 

     (A) THAT CLAUSE PROTECTS AGAINST GOVERNMENT APPEALS ONLY WHERE

  THERE IS A DANGER OF OSUBJECTING THE DEFENDANT TO A SECOND TRIAL

  FOR THE SAME OFFENSE, AND HENCE SUCH PROTECTION DOES NOT ATTACH

  TO A TRIAL JUDGE'S POSTVERDICT CORRECTION OF AN ERROR OF LAW

  WHICH WOULD NOT GRANT THE PROSECUTION A NEW TRIAL OR SUBJECT THE

  DEFENDANT TO MULTIPLE PROSECUTIONS.  PP. 339 - 353. 

     (B) HERE THE DISTRICT COURT'S RULING IN RESPONDENT'S FAVOR

  COULD BE DISPOSED OF ON APPEAL WITHOUT SUBJECTING HIM TO A SECOND

 TRIAL AT THE GOVERNMENT'S BEHEST.  IF HE PREVAILS ON APPEAL, THE

  MATTER WILL BECOME FINAL, AND THE GOVERNMENT WILL NOT BE

  PERMITTED TO BRING A SECOND PROSECUTION FOR THE SAME OFFENSE,

  WHEREAS IF HE LOSES, THE CASE MUST RETURN TO THE DISTRICT COURT

  FOR DISPOSITION OF HIS REMAINING MOTIONS.  P. 353. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION

  IN WHICH BRENNAN, J., JOINED, POST.  P. 353. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

RESPONDENT GEORGE J. WILSON, JR., WAS TRIED IN THE EASTERN DISTRICT
OF PENNSYLVANIA FOR CONVERTING UNION FUNDS TO HIS OWN USE, IN VIOLATION
OF 501(C) OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959,
73 STAT. 536, 29 U.S.C. 501(C) THE JURY ENTERED A GUILTY VERDICT, BUT
ON A POSTVERDICT MOTION THE DISTRICT COURT DISMISSED THE INDICTMENT. 
THE COURT RULED THAT THE DELAY BETWEEN THE OFFENSE AND THE INDICTMENT
HAD PREJUDICED THE DEFENDANT, AND THAT DISMISSAL WAS CALLED FOR UNDER
THIS COURT'S DECISION IN UNITED STATES V. MARION, 404 U.S. 307 (1971). 
THE GOVERNMENT SOUGHT TO APPEAL THE DISMISSAL TO THE COURT OF APPEALS
FOR THE THIRD CIRCUIT, BUT THAT COURT HELD THAT THE DOUBLE JEOPARDY
CLAUSE BARRED REVIEW OF THE DISTRICT COURT'S RULING.  492 F.2D 1345
(1973).  WE GRANTED CERTIORARI TO CONSIDER THE APPLICABILITY OF THE
DOUBLE JEOPARDY CLAUSE TO APPEALS FROM POSTVERDICT RULINGS BY THE TRIAL
COURT.  417 U.S. 908 (1974).  WE REVERSE. 

        I 

IN APRIL 1968 THE FBI BEGAN AN INVESTIGATION OF RESPONDENT WILSON,
THE BUSINESS MANAGER OF LOCAL 367 OF THE INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS.  THE INVESTIGATION FOCUSED ON WILSON'S SUSPECTED
CONVERSION IN 1966 OF $1,233.15 OF UNION FUNDS TO PAY PART OF THE
EXPENSES OF HIS DAUGHTER'S WEDDING RECEPTION.  THE PAYMENT WAS
APPARENTLY MADE BY A CHECK DRAWN ON UNION FUNDS AND ENDORSED BY THE
TREASURER AND THE PRESIDENT OF THE LOCAL UNION.  RESPONDENT CONTENDED
AT TRIAL THAT HE HAD NOT AUTHORIZED THE TWO UNION OFFICIALS TO MAKE THE
PAYMENT ON HIS BEHALF AND THAT HE DID NOT KNOW THE BILL FOR THE
RECEPTION HAD BEEN PAID OUT OF UNION FUNDS.  IN JUNE 1970 THE FBI
COMPLETED ITS INVESTIGATION AND REPORTED TO THE ORGANIZED CRIME STRIKE
FORCE AND THE LOCAL UNITED STATES ATTORNEY'S OFFICE.  /1/  THERE THE
MATTER RESTED FOR SOME 16 MONTHS UNTIL, THREE DAYS PRIOR TO THE RUNNING
OF THE STATUTE OF LIMITATIONS, RESPONDENT WAS INDICTED FOR ILLEGAL
CONVERSION OF UNION FUNDS. 

WILSON MADE A PRETRIAL MOTION TO DISMISS THE INDICTMENT ON THE
GROUND THAT THE GOVERNMENT'S DELAY IN FILING THE ACTION HAD DENIED HIM
THE OPPORTUNITY FOR A FAIR TRIAL.  HIS CHANCE TO MOUNT AN EFFECTIVE
DEFENSE WAS IMPAIRED, WILSON ARGUED, BECAUSE THE TWO UNION OFFICERS WHO
HAD SIGNED THE CHECK FOR THE RECEPTION WERE UNAVAILABLE TO TESTIFY. 
ONE HAD DIED IN 1968, AND THE OTHER WAS SUFFERING FROM A TERMINAL
ILLNESS.  AFTER A HEARING, THE COURT DENIED THE PRETRIAL MOTION, AND
THE CASE PROCEEDED TO TRIAL.  THE JURY RETURNED A VERDICT OF OGUILTY,
AFTER WHICH THE DEFENDANT FILED VARIOUS MOTIONS INCLUDING A MOTION FOR
ARREST OF JUDGMENT, A MOTION FOR A JUDGMENT OF ACQUITTAL, AND A MOTION
FOR A NEW TRIAL. 

THE DISTRICT COURT REVERSED ITS EARLIER RULING AND DISMISSED THE
INDICTMENT ON THE GROUND THAT THE PREINDICTMENT DELAY WAS UNREASONABLE
AND HAD SUBSTANTIALLY PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR
TRIAL.  THE UNION TREASURER HAD DIED PRIOR TO 1970, THE COURT NOTED, SO
THE LOSS OF HIS TESTIMONY COULD NOT BE ATTRIBUTED TO THE PREINDICTMENT
DELAY.  THE UNION PRESIDENT, HOWEVER, HAD BECOME UNAVAILABLE DURING THE
PERIOD OF DELAY.  THE COURT RULED THAT SINCE HE WAS THE ONLY REMAINING
WITNESS WHO COULD EXPLAIN THE CIRCUMSTANCES OF THE PAYMENT OF THE
CHECK, THE PREINDICTMENT DELAY VIOLATED THE RESPONDENT'S FIFTH
AMENDMENT RIGHT TO A FAIR TRIAL.  THIS DISPOSITION OF THE MARION CLAIM
MADE IT UNNECESSARY TO RULE ON THE DEFENDANT'S OTHER POSTVERDICT
MOTIONS. 

THE GOVERNMENT SOUGHT TO APPEAL THE DISTRICT COURT'S RULING PURSUANT
TO THE CRIMINAL APPEALS ACT, 18 U.S.C. 3731, BUT THE COURT OF APPEALS
DISMISSED THE APPEAL IN A JUDGMENT ORDER, CITING OUR DECISION IN UNITED
STATES V. SISSON, 399 U.S. 267 (1970).  ON THE GOVERNMENT'S PETITION
FOR REHEARING, THE COURT WROTE AN OPINION IN WHICH IT REASONED THAT
SINCE THE DISTRICT COURT HAD RELIED ON FACTS BROUGHT OUT AT TRIAL IN
FINDING PREJUDICE FROM THE PREINDICTMENT DELAY, ITS RULING WAS IN
EFFECT AN ACQUITTAL.  UNDER THE DOUBLE JEOPARDY CLAUSE, THE COURT OF
APPEALS HELD, THE GOVERNMENT COULD NOT CONSTITUTIONALLY APPEAL THE
ACQUITTAL, EVEN THOUGH IT WAS RENDERED BY THE JUDGE AFTER THE JURY HAD
RETURNED A VERDICT OF GUILTY. 

        II 

THE GOVERNMENT ARGUES THAT THE COURT OF APPEALS READ THE DOUBLE
JEOPARDY CLAUSE TOO BROADLY AND THAT IT MISCHARACTERIZED THE DISTRICT
COURT'S RULING IN TERMING IT AN ACQUITTAL.  IN THE GOVERNMENT'S VIEW,
THE CONSTITUTIONAL RESTRICTION ON GOVERNMENTAL APPEALS IS INTENDED
SOLELY TO PROTECT AGAINST EXPOSING THE DEFENDANT TO MULTIPLE TRIALS,
NOT TO SHIELD EVERY DETERMINATION FAVORABLE TO THE DEFENDANT FROM
APPELLATE REVIEW.  SINCE A NEW TRIAL WOULD NOT BE NECESSARY WHERE THE
TRIER OF FACT HAS RETURNED A VERDICT OF GUILTY, THE GOVERNMENT ARGUES
THAT IT SHOULD BE PERMITTED TO APPEAL FROM ANY ADVERSE POSTVERDICT
RULING.  IN THE ALTERNATIVE, THE GOVERNMENT URGES THAT EVEN IF THE
DOUBLE JEOPARDY CLAUSE IS READ TO BAR APPEAL OF ANY JUDGMENT OF
ACQUITTAL, THE DISTRICT COURT'S ORDER IN THIS CASE WAS NOT AN ACQUITTAL
AND IT SHOULD THEREFORE BE APPEALABLE.  THE RESPONDENT ARGUES THAT
UNDER OUR PRIOR CASES THE DOUBLE JEOPARDY CLAUSE PROHIBITS APPEAL OF
ANY ORDER DISCHARGING THE DEFENDANT WHEN, AS HERE, THAT ORDER IS BASED
ON FACTS OUTSIDE THE INDICTMENT.  BECAUSE WE AGREE WITH THE GOVERNMENT
THAT THE CONSTITUTIONAL PROTECTION AGAINST GOVERNMENT APPEALS ATTACHES
ONLY WHERE THERE IS A DANGER OF SUBJECTING THE DEFENDANT TO A SECOND
TRIAL FOR THE SAME OFFENSE, WE HAVE NO OCCASION TO DETERMINE WHETHER
THE RULING IN WILSON'S FAVOR WAS ACTUALLY AN "ACQUITTAL" EVEN THOUGH
THE DISTRICT COURT CHARACTERIZED IT OTHERWISE. 

    A. 

THIS COURT EARLY HELD THAT THE GOVERNMENT COULD NOT TAKE AN APPEAL
IN A CRIMINAL CASE WITHOUT EXPRESS STATUTORY AUTHORITY.  UNITED STATES
V. SANGES, 144 U.S. 310 (1892).  NOT REACHING THE UNDERLYING
CONSTITUTIONAL ISSUE, THE COURT HELD ONLY THAT THE GENERAL APPEALS
PROVISIONS OF THE JUDICIARY ACT OF 1891, 26 STAT. 827, 828, WERE NOT
SUFFICIENTLY EXPLICIT TO OVERCOME THE COMMON-LAW RULE THAT THE STATE
COULD NOT SUE OUT A WRIT OF ERROR IN A CRIMINAL CASE UNLESS THE
LEGISLATURE HAD EXPRESSLY GRANTED IT THAT RIGHT.  144 U.S., AT 318, 322
- 323. 

FIFTEEN YEARS LATER, CONGRESS PASSED THE FIRST CRIMINAL APPEALS ACT,
WHICH CONFERRED JURISDICTION ON THIS COURT TO CONSIDER CRIMINAL APPEALS
BY THE GOVERNMENT IN LIMITED CIRCUMSTANCES.  34 STAT. 1246.  THE ACT
PERMITTED THE GOVERNMENT TO TAKE AN APPEAL FROM A DECISION DISMISSING
AN INDICTMENT OR ARRESTING JUDGMENT WHERE THE DECISION WAS BASED ON
"THE INVALIDITY, OR CONSTRUCTION OF THE STATUTE UPON WHICH THE
INDICTMENT IS FOUNDED," AND FROM A DECISION SUSTAINING A SPECIAL PLEA
IN BAR, WHEN THE DEFENDANT HAD NOT BEEN PUT IN JEOPARDY.  /2/ THE ACT
WAS CONSTRUED IN ACCORDANCE WITH THE COMMON-LAW MEANING OF THE TERMS
EMPLOYED, AND THE RULES GOVERNING THE CONDITIONS OF APPEAL BECAME
HIGHLY TECHNICAL.  /3/ THIS COURT HAD A NUMBER OF OCCASIONS TO STRUGGLE
WITH THE VAGARIES OF THE ACT; /4/ IN ONE OF THE LAST OF THESE UNHAPPY
EFFORTS, WE CONCLUDED THAT THE ACT WAS "A FAILURE... A MOST UNRULY
CHILD THAT HAS NOT IMPROVED WITH AGE."  UNITED STATES V. SISSON, 399
U.S., AT 307. 

CONGRESS FINALLY DISPOSED OF THE STATUTE IN 1970 AND REPLACED IT
WITH A NEW CRIMINAL APPEALA ACT INTENDED TO BROADEN THE GOVERNMENT'S
APPEAL RIGHTS.  /5/ WHILE THE LANGUAGE OF THE NEW ACT IS NOT
DISPOSITIVE, THE LEGISLATIVE HISTORY MAKES IT CLEAR THAT CONGRESS
INTENDED TO REMOVE ALL STATUTORY BARRIERS TO GOVERNMENT APPEALS AND TO
ALLOW APPEALS WHENEVER THE CONSTITUTION WOULD PERMIT. 

A BILL PROPOSED BY THE DEPARTMENT OF JUSTICE WOULD HAVE PERMITTED AN
APPEAL BY THE UNITED STATES "FROM A DECISION, JUDGMENT OR ORDER OF A
DISTRICT COURT DISMISSING AN INDICTMENT OR INFORMATION OR TERMINATING A
PROSECUTION IN FAVOR OF A DEFENDANT AS TO ANY ONE OR MORE COUNTS,
EXCEPT THAT NO APPEAL (WOULD) LIE FROM A JUDGMENT OF ACQUITTAL."  S.
3132; H.R. 14588.  THE SENATE REPORT ON THIS BILL INDICATED THAT THE
JUDICIARY COMMITTEE INTENDED TO EXTEND THE GOVERNMENT'S APPEAL RIGHTS
TO THE CONSTITUTIONAL LIMITS.  S. REP. NO. 91 - 1296, P. 18 (1970). 
BOTH THE REPORT AND THE WORDING OF THE BILL, HOWEVER, SUGGESTED THAT
THE COMMITTEE THOUGHT THE DOUBLE JEOPARDY CLAUSE WOULD BAR APPEAL OF
ANY ACQUITTAL, WHETHER A VERDICT OF ACQUITTAL BY A JURY OR A JUDGMENT
OF ACQUITTAL ENTERED BY A JUDGE.  ID., AT 2, 8 - 12.  AT THE SAME TIME,
THE COMMITTEE APPEARS TO HAVE THOUGHT THAT THE CONSTITUTION WOULD
PERMIT REVIEW OF ANY OTHER RULING BY A JUDGE THAT TERMINATED A
PROSECUTION, EVEN IF THE RULING CAME IN THE MIDST OF A TRIAL.  ID., AT
11. 

THE CONFERENCE COMMITTEE MADE TWO IMPORTANT CHANGES IN THE BIL,
ALTHOUGH IT OFFERED NO EXPLANATION FOR THEM.  H.R. CONF. REP. NO. 91 -
1768, P. 21 (1970).  THE COMMITTEE OMITTED THE LANGUAGE PURPORTING TO
PERMIT AN APPEAL FROM AN ORDER "TERMINATING A PROSECUTION IN FAVOR OF A
DEFENDANT," AND IT REMOVED THE PHRASE THAT WOULD HAVE BARRED APPEAL OF
AN ACQUITTAL.  IN PLACE OF THAT PROVISION, THE COMMITTEE SUBSTITUTED
THE LANGUAGE THAT WAS ULTIMATELY ENACTED, UNDER WHICH AN APPEAL WAS
AUTHORIZED "FROM A DECISION, JUDGMENT, OR ORDER OF A DISTRICT COURT
DISMISSING AN INDICTMENT OR INFORMATION . . . EXCEPT THAT NO APPEAL
SHALL LIE WHERE THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES
CONSTITUTION PROHIBITS FURTHER PROSECUTION." 

THESE CHANGES ARE CONSISTENT WITH THE SENATE COMMITTEE'S DESIRE TO
AUTHORIZE APPEALS WHENEVER CONSTITUTIONALLY PERMISSIBLE, BUT THEY
SUGGEST THAT CONGRESS DECIDED TO RELY UPON THE COURTS TO DEFINE THE
CONSTITUTIONAL BOUNDARIES RATHER THAN TO CREATE A STATUTORY SCHEME THAT
MIGHT BE IN SOME RESPECTS NARROWER OR BROADER THAN THE FIFTH AMENDMENT
WOULD ALLOW.  IN LIGHT OF THIS BACKGROUND IT SEEMS INESCAPABLE THAT
CONGRESS WAS DETERMINED TO AVOID CREATING NONCONSTITUTIONAL BARS TO THE
GOVERNMENT'S RIGHT TO APPEAL.  THE DISTRICT COURT'S ORDER IN THIS CASE
IS THEREFORE APPEALABLE UNLESS THE APPEAL IS BARRED BY THE
CONSTITUTION. 

        B. 

THE STATUTORY RESTRICTIONS ON GOVERNMENT APPEALS LONG MADE IT
UNNECESSARY FOR THIS COURT TO CONSIDER THE CONSTITUTIONAL LIMITATIONS
ON THE APPEAL RIGHTS OF THE PROSECUTION EXCEPT IN UNUSUAL
CIRCUMSTANCES.  EVEN IN THE FEW RELEVANT CASES, THE DISCUSSION OF THE
QUESTION HAS BEEN BRIEF.  NOW THAT CONGRESS HAS REMOVED THE STATUTORY
LIMITATIONS AND THE DOUBLE JEOPARDY CLAUSE HAS BEEN HELD TO APPLY TO
THE STATES, SEE BENTON V. MARYLAND, 395 U.S. 784 (1969), IT IS
NECESSARY TO TAKE A CLOSE LOOK AT THE POLICIES UNDERLYING THE CLAUSE IN
ORDER TO DETERMINE MORE PRECISELY THE BOUNDARIES OF THE GOVERNMENT'S
APPEAL RIGHTS IN CRIMINAL CASES. 

AS HAS BEEN DOCUMENTED ELSEWHERE, THE IDEA OF DOUBLE JEOPARDY IS
VERY OLD.  SEE BARTKUS V. ILLINOIS, 359 U.S. 121, 151 - 155 (1959)
(BLACK, J., DISSENTING); UNITED STATES V. JENKINS, 490 F. 2D 868, 870 -
873 (CA2 1973).  THE EARLY DEVELOPMENT OF THE PRINCIPLE CAN BE TRACED
THROUGH A VARIETY OF SOURCES RANGING FROM LEGAL MAXIMS TO CASUAL
REFERENCES IN CONTEMPORARY COMMENTARY.  ALTHOUGH THE FORM AND BREADTH
OF THE PROHIBITION VARIED WIDELY, THE UNDERLYING PREMISE WAS GENERALLY
THAT A DEFENDANT SHOULD NOT BE TWICE TRIED OR PUNISHED FOR THE SAME
OFFENSE.  J. SIGLER, DOUBLE JEOPARDY 2 - 16 (1969).  /6/  WRITING IN
THE 17TH CENTURY, LORD COKE DESCRIBED THE PROTECTION AFFORDED BY THE
PRINCIPLE OF DOUBLE JEOPARDY AS A FUNCTION OF THREE RELATED COMMON-LAW
PLEAS:  AUTREFOIS ACQUIT, AUTREFOIS CONVICT, AND PARDON.  WITH SOME
EXCEPTIONS, THESE PLEAS COULD BE RAISED TO BAR THE SECOND TRIAL OF A
DEFENDANT IF HE COULD PROVE THAT HE HAD ALREADY BEEN CONVICTED OF THE
SAME CRIME.  3 E. COKE, INSTITUTES 212 - 213 (6TH ED. 1680). 
BLACKSTONE LATER USED THE ANCIENT TERM "JEOPARDY" IN CHARACTERIZING THE
PRINCIPLE UNDERLYING THE TWO PLEAS OF AUTREFOIS ACQUIT AND AUTREFOIS
CONVICT.  THAT PRINCIPLE, HE WROTE, WAS A "UNIVERSAL MADIM OF THE
COMMON LAW OF ENGLAND, THAT NO MAN IS TO BE BROUGHT INTO JEOPARDY OF
HIS LIFE MORE THAN ONCE FOR THE SAME OFFENCE."  4 W. BLACKSTONE,
COMMENTARIES 335 - 336. 

THE HISTORY OF THE ADOPTION OF THE DOUBLE JEOPARDY CLAUSE SHEDS SOME
LIGHT ON WHAT THE DRAFTERS THOUGHT BLACKSTONE'S "UNIVERSAL MAXIM"
SHOULD MEAN AS APPLIED IN THIS COUNTRY.  AT THE TIME OF THE FIRST
CONGRESS, ONLY ONE STATE HAD A CONSTITUTIONAL PROVISION EMBODYING
ANYTHING RESEMBLING A PROHIBITION AGAINST DOUBLE JEOPARDY.  /7/ IN THE
COURSE OF THEIR RATIFICATION PROCEEDINGS, HOWEVER, TWO OTHER STATES
SUGGESTED THAT A DOUBLE JEOPARDY CLAUSE BE INCLUDED AMONG THE FIRST
AMENDMENTS TO THE FEDERAL CONSTITUTION.  /8/ APPARENTLY ATTEMPTING TO
ACCOMMODATE THESE SUGGESTIONS, JAMES MADISON ADDED A BAN AGAINST DOUBLE
JEOPARDY TO THE PROPOSED VERSION OF THE BILL OF RIGHTS THAT HE
PRESENTED TO THE HOUSE OF REPRESENTATIVES IN JUNE 1789.  MADISON'S
PROVISION READ:  " NO PERSON SHALL BE SUBJECT, EXCEPT IN CASES OF
IMPEACHMENT, TO MORE THAN ONE PUNISHMENT OR ONE TRIAL FOR THE SAME
OFFENCE."  1 ANNALS OF CONG. 434 (1789).  SEVERAL MEMBERS OF THE HOUSE
CHALLENGED MADISON'S WORDING ON THE GROUND THAT IT MIGHT BE
MISCONSTRUED TO PREVENT A DEFENDANT FROM SEEKING A NEW TRIAL ON APPEAL
OF HIS CONVICTION.  ID., AT 753.  ONE OF MADISON'S SUPPORTERS ASSURED
THE DOUBTERS THAT THE PROPOSED CLAUSE MERELY STATED THE CURRENT LAW,
AND THAT THIS PROTECTION FOR DEFENDANTS WAS IMPLICIT IN THE LANGUAGE AS
IT STOOD.  /9/ MADISON'S WORDING SURVIVED IN THE HOUSE, BUT IN THE
SENATE, HIS PROPOSAL WAS REJECTED IN FAVOR OF THE MORE TRADITIONAL
LANGUAGE EMPLOYING THE FAMILIAR CONCEPT OF "JEOPARDY."  S. JOUR., 1ST
CONG., 1ST SESS., 71, 77 (1820 ED.).  THE SENATE'S CHOICE OF LANGUAGE
THAT TRACKED BLACKSTONE'S STATEMENT OF THE PRINCIPLES OF AUTREFOIS
ACQUIT AND AUTREFOIS CONVICT WAS ADOPTED BY THE CONFERENCE COMMITTEE
AND APPROVED BY BOTH HOUSES WITH NO APPARENT DISSENSION.  ID., AT 87 -
88; H.R. JOUR., 1ST CONG., 1ST SESS., 121 (1826 ED.).     IN THE COURSE
OF THE DEBATES OVER THE BILL OF RIGHTS, THERE WAS NO SUGGESTION THAT
THE DOUBLE JEOPARDY CLAUSE IMPOSED ANY GENERAL BAN ON APPEALS BY THE
PROSECUTION.  THE ONLY RESTRICTION ON APPEAL RIGHTS MENTIONED IN ANY OF
THE PROPOSED VERSIONS OF THE CLAUSE WAS IN MARYLAND'S SUGGESTION THAT
"THERE SHALL BE . . . NO APPEAL FROM MATTER OF FACT," WHICH WAS
APPARENTLY INTENDED TO APPLY EQUALLY TO THE PROSECUTION AND THE
DEFENSE.  NOR DOES THE COMMON-LAW BACKGROUND OF THE CLAUSE SUGGEST AN
IMPLIED PROHIBITION AGAINST STATE APPEALS.  ALTHOUGH IN THE LATE 18TH
CENTURY THE KING WAS PERMITTED TO SUE OUT A WRIT OF ERROR IN A CRIMINAL
CASE UNDER CERTAIN CIRCUMSTANCES, /10/ THE PRINCIPLES OF AUTREFOIS
ACQUIT AND AUTREFOIS CONVICT IMPOSED NO APPARENT RESTRICTIONS ON THIS
RIGHT.  IT WAS ONLY WHEN THE DEFENDANT WAS INDICTED FOR A SECOND TIME
AFTER EITHER A CONVICTION OR AN ACQUITTAL THAT HE COULD SEEK THE
PROTECTION OF THE COMMON-LAW PLEAS.  THE DEVELOPMENT OF THE DOUBLE
JEOPARDY CLAUSE FROM ITS COMMON-LAW ORIGINS THUS SUGGESTS THAT IT WAS
DIRECTED AT THE THREAT OF MULTIPLE PROSECUTIONS, NOT AT GOVERNMENT
APPEALS, AT LEAST WHERE THOSE APPEALS WOULD NOT REQUIRE A NEW TRIAL. 

        C 

THIS COURT'S CASES CONSTRUING THE DOUBLE JEOPARDY CLAUSE REINFORCE
THIS VIEW OF THE CONSTITUTIONAL GUARANTEE.  IN NORTH CAROLINA V.
PEARCE, 395 U.S. 711 (1969), WE OBSERVED THAT THE DOUBLE JEOPARDY
CLAUSE PROVIDES THREE RELATED PROTECTIONS: 

" IT PROTECTS AGAINST A SECOND PROSECUTION FOR THE SAME OFFENSE
AFTER ACQUITTAL.  IT PROTECTS AGAINST A SECOND PROSECUTION FOR THE SAME
OFFENSE AFTER CONVICTION.  AND IT PROTECTS AGAINST MULTIPLE PUNISHMENTS
FOR THE SAME OFFENSE."  ID., AT 717. 

THE INTERESTS UNDERLYING THESE THREE PROTECTIONS ARE QUITE SIMILAR. 
WHEN A DEFENDANT HAS BEEN ONCE CONVICTED AND PUNISHED FOR A PARTICULAR
CRIME, PRINCIPLES OF FAIRNESS AND FINALITY REQUIRE THAT HE NOT BE
SUBJECTED TO THE POSSIBILITY OF FURTHER PUNISHMENT BY BEING AGAIN TRIED
OR SENTENCED FOR THE SAME OFFENSE.  EX PARTE LANGE, 18 WLLL.  163
(1874); IN RE NIELSEN, 131 U.S. 176 (1889).  WHEN A DEFENDANT HAS BEEN
ACQUITTED OF AN OFFENSE, THE CLAUSE GUARANTEES THAT THE STATE SHALL NOT
BE PERMITTED TO MAKE REPEATED ATTEMPTS TO CONVICT HIM, "THEREBY
SUBJECTING HIM TO EMBARRASSMENT, EXPENSE AND ORDEAL AND COMPELLING HIM
TO LIVE IN A CONTINUING STATE OF ANXIETY AND INSECURITY, AS WELL AS
ENHANCING THE POSSIBILITY THAT EVEN THOUGH INNOCENT HE MAY BE FOUND
GUILTY."  GREEN V. UNITED STATES, 355 U.S. 184, 187 - 188 (1957). 

THE POLICY OF AVOIDING MULTIPLE TRIALS HAS BEEN REGARDED AS SO
IMPORTANT THAT EXCEPTIONS TO THE PRINCIPLE HAVE BEEN ONLY GRUDGINGLY
ALLOWED.  INITIALLY, A NEW TRIAL WAS THOUGHT TO BE UNAVAILABLE AFTER
APPEAL, WHETHER REQUESTED BY THE PROSECUTION OR THE DEFENDANT.  SEE
UNITED STATES V. BIBERT, 25 F. CAS. 1287 (N/. 15,204) (CCD MASS. 1834)
(STORY, J.).  IT WAS NOT UNTIL 1896 THAT IT WAS MADE CLEAR THAT A
DEFENDANT COULD SEEK A NEW TRIAL AFTER CONVICTION, EVEN THOUGH THE
GOVERNMENT ENJOYED NO SIMILAR RIGHT.  UNITED STATES V. BALL, 163 U.S.
662.  /11/ FOLLOWING THE SAME POLICY, THE COURT HAS GRANTED THE
GOVERNMENT THE RIGHT TO RETRY A DEFENEANT AFTER A MISTRIAL ONLY WHERE
"THERE IS A MANIFEST NECESSITY FOR THE ACT, OR THE ENDS OF PUBLIC
JUSTICE WOULD OTHERWISE BE DEFEATED."  UNITED STATES V. PEREZ, 9
WHEAT.  579, 580 (1824).  /12/ 

BY CONTRAST, WHERE THERE IS NO THREAT OF EITHER MULTIPLE PUNISHMENT
OR SUCCESSIVE PROSECUTIONS, THE DOUBLE JEOPARDY CLAUSE IS NOT
OFFENDED.  /13/ IN VARIOUS SITUATIONS WHERE APPELLATE REVIEW WOULD NOT
SUBJECT THE DEFENDANT TO A SECOND TRIAL, THIS COURT HAS HELD THAT AN
ORDER FAVORING THE DEFENDANT COULD CONSTITUTIONALLY BE APPEALED BY THE
GOVERNMENT.  SINCE THE 1907 CRIMINAL APPEALS ACT, FOR EXAMPLE, THE
GOVERNMENT HAS BEEN PERMITTED WITHOUT SERIOUS CONSTITUTIONAL CHALLENGE
TO APPEAL FROM ORDERS ARRESTING JUDGMENT AFTER A VERDICT HAS BEEN
ENTERED AGAINST THE DEFENDANT.  SEE, E.G., UNITED STATES V. BRAMBLETT,
348 U.S. 503 (1955); UNITED STATES V. GREEN, 350 U.S. 415 (1956); PRATT
V. UNITED STATES, 70 APP. D.C. 7, 11, 102 F.2D 275, 279 (1939).  SINCE
REVERSAL ON APPEAL WOULD MERELY REINSTATE THE JURY'S VERDICT, REVIEW OF
SUCH AN ORDER DOES NOT OFFEND THE POLICY AGAINST MULTIPLE PROSECUTION. 

SIMILARLY, IT IS WELL SETTLED THAT AN APPELLATE COURT'S ORDER
REVERSING A CONVICTION IS SUBJECT TO FURTHER REVIEW EVEN WHEN THE
APPELLATE COURT HAS ORDERED THE INDICTMENT DISMISSED AND THE DEFENDANTS
DISCHARGED.  FORMAN V. UNITED STATES, 36 S. 416, 426 (1960).  IF
REVERSAL BY A COURT OF APPEALS OPERATED TO DEPRIVE THE GOVERNMENT OF
ITS RIGHT TO SEEK FURTHER REVIEW, DISPOSITION IN THE COURT OF APPEALS
WOULD BE "TANTAMOUNT TO A VERDICT OF ACQUITTAL AT THE HANDS OF THE
JURY, NOT SUBJECT TO REVIEW BY MOTION FOR REHEARING, APPEAL, OR
CERTIORARI IN THIS COURT."  IBID.  SEE ALSO UNITED STATES V. SHOTWELL
MFG. CO., 355 U.S. 233, 243 (1957). 

IT IS DIFFICULT TO SEE WHY THE RULE SHOULD BE ANY DIFFERENT SIMPLY
BECAUSE THE DEFENDANT HAS GOTTEN A FAVORABLE POST-VERDICT RULING OF LAW
FROM THE DISTRICT JUDGE RATHER THAN FROM THE COURT OF APPEALS, OR
BECAUSE THE DISTRICT JUDGE HAS RELIED TO SOME DEGREE ON EVIDENCE
PRESENTED AT TRIAL IN MAKING HIS RULING.  ALTHOUGH REVIEW OF ANY RULING
OF LAW DISCHARGING A DEFENDANT OBVIOUSLY ENHANCES THE LIKELIHOOD OF
CONVICTION AND SUBJECTS HIM TO CONTINUING EXPENSE AND ANXIETY, A
DEFENDANT HAS NO LEGITIMATE CLAIM TO BENEFIT FROM AN ERROR OF LAW WHEN
THAT ERROR COULD BE CORRECTED WITHOUT SUBJECTING HIM TO A SECOND TRIAL
BEFORE A SECOND TRIER OF FACT.  /14/ 

AS WE HAVE NOTED, THIS COURT HAS HAD RELATIVELY FEW OCCASIONS TO
COMMENT DIRECTLY ON THE CONSTITUTIONAL RESTRICTIONS ON GOVERNMENT
APPEALS.  THE FEW RELEVANT CASES ARE NONETHELESS CONSISTENT WITH DOUBLE
JEOPARDY CASES FROM RELATED AREAS, IN FOCUSING ON THE PROHIBITION
AGAINST MULTIPLE TRIALS AS THE CONTROLLING CONSTITUTIONAL PRINCIPLE. 

THE COURT FIRST ADDRESSED THE QUESTION IN UNITED STATES V. BALL,
SUPRA.  AFTER TRIAL ON AN INDICTMENT FOR MURDER, THE JURY FOUND ONE OF
THE DEFENDANTS NOT GUILTY.  THE INDICTMENT WAS LATER DETERMINED TO BE
DEFECTIVE, BUT THIS COURT HELD THAT AN ACQUITTAL, EVEN ON A DEFECTIVE
INDICTMENT, WAS SUFFICIENT TO BAR A SUBSEQUENT PROSECUTION FOR THE SAME
OFFENSE.  163 U.S., AT 669.  " THE VERDICT OF ACQUITTAL WAS FINAL," THE
COURT WROTE, "AND COULD NOT BE REVIEWED, ON ERROR OR OTHERWISE, WITHOUT
PUTTING HIM TWICE IN JEOPARDY, AND THEREBY VIOLATING THE
CONSTITUTION."  ID., AT 671. 

EIGHT YEARS LATER THE COURT WAS AGAIN FACED WITH A DOUBLE JEOPARDY
CHALLENGE TO A GOVERNMENT APPEAL.  /15/ IN KEPNER V. UNITED STATES, 195
U.S. 100 (1904), THE PROSECUTION SOUGHT WHAT WAS IN ESSENCE A TRIAL DE
NOVO AFTER THE DEFENDANT HAD BEEN ACQUITTED BY THE COURT IN A BENCH
TRIAL.  THE COURT, RELYING ON THE BALL CASE, HELD THAT "TO TRY A MAN
AFTER A VERDICT OF ACQUITTAL IS TO PUT HIM TWICE IN JEOPARDY, ALTHOUGH
THE VERDICT WAS NOT FOLLOWED BY JUDGMENT."  ID., AT 133.  PERMITTING AN
APPEAL IN KEPNER WOULD IN EFFECT HAVE EXPOSED THE DEFENDANT TO A SECOND
TRIAL, IN VIOLATION OF THE CONSTITUTIONAL PROTECTION AGAINST MULTIPLE
TRIALS FOR THE SAME OFFENSE. 

RESPONDENT CONTENDS THAT BALL AND KEPNER STAND FOR THE PROPOSITION
THAT THE KEY TO INVOKING DOUBLE JEOPARDY PROTECTION IS NOT WHETHER THE
DEFENDANT MIGHT BE SUBJECTED TO MULTIPLE TRIALS, BUT WHETHER HE CAN
POINT TO A PRIOR VERDICT OR JUDGMENT OF ACQUITTAL.  IN BALL, HOWEVER,
THE COURT EXPLAINED THAT REVIEW OF THE VERDICT OF ACQUITTA WAS BARRED
PRIMARILY BECAUSE IT WOULD EXPOSE THE DEFENDANT TO THE RISK OF A SECOND
TRIAL AFTER THE FINDER OF FACT HAD RULED IN HIS FAVOR IN THE FIRST. 
AND, ALTHOUGH THE KEPNER CASE TECHNICALLY INVOLVED ONLY A SINGLE
PROCEEDING, THE COURT REGARDED THE PRACTICE AS EQUIVALENT TO TWO
SEPARATE TRIALS, AND THE EVIL THAT THE COURT SAW IN THE PROCEDURE WAS
PLAINTLY THAT OF MULTIPLE PROSECUTION:  /16/ 

" THE COURT OF FIRST INSTANCE, HAVING JURISDICTION TO TRY THE
QUESTION OF THE GUILT OR INNOCENCE OF THE ACCUSED, FOUND KEPNER NOT
GUILTY; TO TRY HIM AGAIN UPON THE MERITS, EVEN IN AN APPELLATE COURT,
IS TO PUT HIM A SECOND TIME IN JEOPARDY FOR THE SAME OFFENSE."  195
U.S., AT 133. 

THE RESPONDENT SEEKS SOME COMFORT FROM THIS COURT'S MORE RECENT
DECISION IN FONG FOO V. UNITED STATES, 369 U.S. 141 (1962), BUT THAT
CASE, TOO, REFLECTS THE POLICY AGAINST MULTIPLE TRIALS IN LIMITING THE
GOVERNMENT'S APPEAL RIGHTS.  IN FONG FOO THE TRIAL COURT HAD
INTERRUPTED THE GOVERNMENT'S CASE AND DIRECTED THE JURY TO RETURN
VERDICTS OF ACQUITTAL AS TO ALL THE DEFENDANTS.  THIS COURT HELD THAT
EVEN IF THE DISTRICT COURT HAD ERRED IN DIRECTING THE ACQUITTAL, THE
DOUBLE JEOPARDY CLAUSE WAS OFFENDED "WHEN THE COURT OF APPEALS SET
ASIDE THE JUDGMENT OF ACQUITTAL AND DIRECTED THAT THE PETITIONERS BE
TRIED AGAIN FOR THE SAME OFFENSE."  ID., AT 143.  THE COURT NOTED THAT
ALTHOUGH RETRIAL IS SOMETIMES PERMISSIBLE AFTER A MISTRIAL IS DECLARED
BUT NO VERDICT OR JUDGMENT HAS BEEN ENTERED, THE VERDICT OF ACQUITTAL
FORECLOSED RETRIAL AND THUS BARRED APPELLATE REVIEW. 

FINALLY, RESPONDENT PLACES GREAT WEIGHT ON OUR DECISION IN UNITED
STATES V. SISSON, 399 U.S. 267 (1970).  HE CLAIMS THAT SISSON EXTENDS
THE CONSTITUTIONAL PROTECTION AGAINST GOVERNMENT APPEALS TO ANY CASE IN
WHICH THE RULING APPEALED FROM IS BASED UPON FACTS OUTSIDE THE FACE OF
THE INDICTMENT. 

SISSON AROSE UNDER THE FORMER CRIMINAL APPEALS ACT AND CAME HERE ON
DIRECT APPEAL FROM THE DISTRICT COURT.  THE DEFENDANT HAD BEEN TRIED
FOR REFUSING TO SUBMIT TO INDUCTION, AND THE JURY HAD FOUND HIM
GUILTY.  ON A POSTVERDICT MOTION, HOWEVER, THE DISTRICT COURT ENTERED
WHAT IT TERMED AN "ARREST OF JUDGMENT," DISMISSING THE INDICTMENT ON
THE GROUND THAT SISSON COULD NOT BE CONVICTED BECAUSE HIS SINCERE
OPPOSITION TO THE WAR IN VIETNAM OUTWEIGHED THE COUNTRY'S NEED TO DRAFT
HIM.  THE GOVERNMENT SOUGHT TO APPEAL THE DISTRICT COURT'S RULING ON
THE THEORY THAT IT WAS WITHIN THE "ARRESTING JUDGMENT" PROVISION OF THE
CRIMINAL APPEALS ACT.  WE HELD THAT THE RULING WAS NOT APPEALABLE UNDER
EITHER THE "ARRESTING JUDGMENT" OR THE "MOTION IN BAR" PROVISIONS OF
THE ACT AND DISMISSED THE CASE FOR WANT OF APPELLATE JURISDICTION. 

WRITING FOR A PLURALITY OF FOUR JUSTICES, MR. JUSTICE HARLAN GAVE
THREE REASONS FOR HIS CONCLUSION THAT THE DISTRICT COURT'S RULING WAS
NOT APPEALABLE AS AN ARREST OF JUDGMENT.  FIRST, HE WROTE, THE DISTRICT
COURT'S RULING WAS NOT WITHIN THE COMMON-LAW DEFINITION OF AN ARREST OF
JUDGMENT SINCE IT WENT BEYOND THE FACE OF THE RECORD.  THE CRIMINAL
APPEALS ACT, HE NOTED, WAS DRAFTED AGAINST A COMMON-LAW BACKGROUND IN
WHICH THE STATUTORY PHRASE HAD A "WELL DEFINED AND LIMITED MEANING"
THAT DID NOT INCORPORATE RULINGS THAT RELIED UPON EVIDENCE INTRODUCED
AT TRIAL.  SECOND, THE DISTRICT COURT'S RULING FAILED TO SATISFY THE
STATUTORY REQUIREMENT THAT THE DECISION ARRESTING JUDGMENT BE "FOR
INSUFFICIENCY OF OTHE INDICTMENT."  THE ISSUE OF THE SINCERITY OF
SISSON'S BELIEFS WAS NOT PRESENTED BY THE INDICTMENT; ACCORDINGLY, THE
INDICTMENT WAS NOT "INSUFFICIENT" UNDER THE APPEALS STATUTE, SINCE IT
WAS SUFFICIENT TO CHARGE AN OFFENSE AND IT DID NOT ALLEGE FACTS THAT IN
THEMSELVES ESTABLISHED THE AVAILABILITY OF A CONSTITUTIONAL PRIVILEGE. 
IN PART II-- C OF THE OPINION, FOR WHICH MR. JUSTICE BLACK PROVIDED A
MAJORITY OF THE COURT, MR. JUSTICE HARLAN EXPLAINED THE THIRD REASON
FOR CONCLUDING THAT THE DISTRICT COURT'S ORDER WAS NOT AN ARREST OF
JUDGMENT:  BECAUSE THE ORDER WAS "BOTTOMED ON FACTUAL CONCLUSIONS NOT
FOUND IN THE INDICTMENT BUT INSTEAD MADE ON THE BASIS OF EVIDENCE
ADDUCED AT THE TRIAL," IT WAS AN ACQUITTAL "RENDERED BY THE TRIAL COURT
AFTER THE JURY'S VERDICT OF GUILTY."  399 U.S., AT 288.  THE DISTRICT
COURT'S POST-VERDICT RULING, HE WROTE, WAS INDISTINGUISHABLE FROM A
HYPOTHETICAL VERDICT OF ACQUITTAL ENTERED BY A JURY ON AN INSTRUCTION
INCORPORATING THE CONSTITUTIONAL DEFENSE THAT THE JUDGE HAD RECOGNIZED
IN HIS RULING.  IF THE JURY HAD BEEN SO INSTRUCTED AND HAD ACQUITTED,
HE POINTED OUT, THERE WOULD PLAINLY HAVE BEEN NO APPEAL UNDER THE
CRIMINAL APPEALS ACT.  THE LEGISLATIVE HISTORY OF THE ACT MADE IT CLEAR
THAT CONGRESS DID NOT CONTEMPLATE REVIEW OF VERDICTS OF ACQUITTAL, NO
MATTER HOW ERRONEOUS THE CONSTITUTIONAL THEORY UNDERLYING THE
INSTRUCTIONS.  NOR, HE ADDED, COULD AN APPEAL HAVE BEEN TAKEN
CONSISTENTLY WITH THE DOUBLE JEOPARDY CLAUSE.  THE LATTER POINT WAS
MADE IN THE FOLLOWING PASSAGE: 

" QUITE APART FROM THE STATUTE, IT IS, OF COURSE, WELL SETTLED THAT
AN ACQUITTAL CAN 'NOT BE REVIEWED, ON ERROR OR OTHERWISE, WITHOUT
PUTTING (THE DEFENDANT) TWICE IN JEOPARDY, AND THEREBY VIOLATING THE
CONSTITUTION.  . . . (IN THIS COUNTRY A VERDICT OF ACQUITTAL, ALTHOUGH
NOT FOLLOWED BY ANY JUDGMENT, IS A BAR TO A SUBSEQUENT PROSECUTION FOR
THE SAME OFFENCE.'  UNITED STATES V. BALL, 163 U.S. 662, 671 (1896)." 
399 U.S., AT 289 - 290. 

RESPONDENT ARGUES THAT THIS PASSAGE WAS MEANT TO PROVIDE AN
ALTERNATIVE HOLDING FOR SISSON, THAT EVEN IF THE CRIMINAL APPEALS ACT
WOULD PERMIT AN APPEAL ON THE FACTS IN SISSON, THE DOUBLE JEOPARDY
CLAUSE WOULD NOT.  IN ESSENCE, RESPONDENT RESTS HIS CASE ON WHAT HE
PERCEIVES TO BE THE COURT'S SYLLOGISM IN THIS PORTION OF THE SISSON
OPINION:  (1) THE POSTVERDICT RULING WAS NOT A COMMON-LAW ARREST OF
JUDGMENT, BUT AN ACQUITTAL; (2) UNDER THE BALL CASE, AN ACQUITTAL
CANNOT BE APPEALED WITHOUT OFFENDING THE DOUBLE JEOPARDY CLAUSE; THUS,
73) THE DISTRICT COURT'S RULING IN SISSON WAS SHIELDED FROM REVIEW AS A
MATTER OF CONSTITUTIONAL LAW.     WE ARE CONSTRAINED TO DISAGREE.  A
MORE NATURAL READING OF THIS PASSAGE SUGGESTS THAT THE REFERENCE TO THE
DOUBLE JEOPARDY CLAUSE WAS MEANT TO APPLY TO THE HYPOTHETICAL JURY
VERDICT, NOT TO THE ORDER ENTERED BY THE TRIAL COURT IN SISSON ITSELF. 
/17/ APPEAL FROM THE HYPOTHETICAL JURY VERDICT WOULD HAVE BEEN
PRECLUDED BOTH BY THE STATUTE AND BY THE CONSTITUTION; APPEAL FROM THE
DISTRICT COURT'S ACTUAL RULING IN THE CASE, HOWEVER, WAS BARRED SOLELY
BY THE STATUTE.  THE ONLY DIRECT EFFECT OF THE CONSTITUTION ON THE CASE
WAS, AS THE COURT POINTED OUT IN A FOOTNOTE FOLLOWING THE QUOTED
PASSAGE, THAT AFTER THIS COURT'S JURISDICTIONAL DISMISSAL, SISSON COULD
NOT BE RETRIED.  399 U.S., AT 290 N. 18.  /18/ ACCORDINGLY, WE FIND
SISSON NO AUTHORITY FOR THE PROPOSITION THAT THE GOVERNMENT CANNOT
CONSTITUTIONALLY APPEAL ANY POSTVERDICT ORDER THAT WOULD HAVE BEEN AN
UNAPPEALABLE ACQUITTAL UNDER THE FORMER CRIMINAL APPEALS ACT. 

        D. 

THE GOVERNMENT HAS NOT SERIOUSLY CONTENDED IN THIS CASE THAT ANY
RULING OF LAW BY A JUDGE IN THE COURSE OF A TRIAL IS REVIEWABLE ON THE
STATE'S MOTION, /9/ ALTHOUGH THIS VIEW HAS HAD SOME SUPPORT AMONG THE
COMMENTATORS SINCE MR. JUSTICE HOLMES ADOPTED IT IN HIS DISSENT TO
KEPNER V. UNITED STATES, SUPRA.  /20/ MR. JUSTICE HOLMES ACCEPTED AS
COMMON GROUND THAT THE DOUBLE JEOPARDY CLAUSE FORBIDS "A TRIAL IN A NEW
AND INDEPENDENT CASE WHERE A MAN ALREADY HAD BEEN TRIED ONCE."  195
U.S., AT 134.  BUT IN HIS VIEW THE FIRST JEOPARDY SHOULD BE TREATED AS
CONTINUING UNTIL BOTH SIDES HAVE EXHAUSTED THEIR APPEALS ON CLAIMED
ERRORS OF LAW, REGARDLESS OF THE POSSIBILITY THAT THE DEFENDANT MAY BE
SUBJECTED TO RETRIAL AFTER A VERDICT OF ACQUITTAL. 

A SYSTEM PERMITTING REVIEW OF ALL CLAIMED LEGAL ERRORS WOULD HAVE
SYMMETRY TO RECOMMEND IT AND WOULD AVOID THE RELEASE OF SOME DEFENDANTS
WHO HAVE BENEFITED FROM INSTRUCTIONS OR EVIDENTIARY RULINGS THAT ARE
UNDULY FAVORABLE TO THEM.  BUT WE HAVE REJECTED THIS POSITION IN THE
PAST, AND WE CONTINUE TO BE OF THE VIEW THAT THE POLICIES UNDERLYING
THE DOUBLE JEOPARDY CLAUSE MILITATE AGAINST PERMITTING THE GOVERNMENT
TO APPEAL AFTER A VERDICT OF ACQUITTAL.  GRANTING THE GOVERNMENT SUCH
BROAD APPEAL RIGHTS WOULD ALLOW OTHE PROSECUTOR TO SEEK TO PERSUADE A
SECOND TRIER OF FACT OF OTHE DEFENDANT'S GUILT AFTER HAVING FAILED WITH
THE FIRST; IT WOULD PERMIT HIM TO RE-EXAMINE THE WEAKNESSES IN HIS
FIRST PRESENTATION IN ORDER TO STRENGTHEN THE SECOND; AND IT WOULD
DISSERVE THE DEFENDANT'S LEGITIMATE INTEREST IN THE FINALITY OF A
VERDICT OF ACQUITTAL.  /21/ THESE INTERESTS, HOWEVER, DO NOT APPLY IN
THE CASE OF A POSTVERDICT RULING OF LAW BY A TRIAL JUDGE.  CORRECTION
OF AN ERROR OF LAW AT THAT STAGE WOULD NOT GRANT THE PROSECUTOR A NEW
TRIAL OR SUBJECT THE DEFENDANT TO THE HARASSMENT TRADITIONALLY
ASSOCIATED WITH MULTIPLE PROSECUTIONS.  WE THEREFORE CONCLUDE THAT WHEN
A JUDGE RULES IN FAVOR OF THE DEFENDANT AFTER A VERDICT OF GUILTY HAS
BEEN ENTERED BY THE TRIER OF FACT, THE GOVERNMENT MAY APPEAL FROM THAT
RULING WITHOUT RUNNING AFOUL OF THE DOUBLE JEOPARDY CLAUSE. 

III 

APPLYING THESE PRINCIPLES TO THE PRESENT CASE IS A RELATIVELY
STRAIGHTFORWARD TASK.  THE JURY ENTERED A VERDICT OF GUILTY AGAINST
WILSON.  THE RULING IN HIS FAVOR ON THE MARION MOTION COULD BE ACTED ON
BY THE COURT OF APPEALS OR INDEED THIS COURT WITHOUT SUBJECTING HIM TO
A SECOND TRIAL AT THE GOVERNMENT'S BEHEST.  IF HE PREVAILS ON APPEAL,
THE MATTER WILL BECOME FINAL, AND THE GOVERNMENT WILL NOT BE PERMITTED
TO BRING A SECOND PROSECUTION AGAINST HIM FOR THE SAME OFFENSE.  IF HE
LOSES, THE CASE MUST GO BACK TO THE DISTRICT COURT FOR DISPOSITION OF
HIS REMAINING MOTIONS.  WE THEREFORE REVERSE THE JUDGMENT AND REMAND
FOR THE COURT OF APPEALS TO CONSIDER THE MERITS OF THE GOVERNMENT'S
APPEAL. 

                                  REVERSED AND REMANDED. 

/1/ THE COURT OF APPEALS NOTED THAT THE PORTION OF THE INVESTIGATION
THAT FOCUSED ON WILSON WAS COMPLETED BY JUNE 1969.  492 F.2D 1345,
1346.  THE FBI AGENT WHO CONDUCTED THE INVESTIGATION TESTIFIED THAT HE
HAD COMMUNICATED WITH REPRESENTATIVES OF THE STRIKE FORCE AND THE
UNITED STATES ATTORNEY'S OFFICE ABOUT THE CASE AS EARLY AS DECEMBER
1969.  APP. 28. 

/2/ SIGNIFICANTLY, THE STATUTE EXPRESSLY PROVIDED THAT THE
GOVERNMENT COULD NOT HAVE A WRIT OF ERROR "IN ANY CASE WHERE THERE HAS
BEEN A VERDICT IN FAVOR OF THE DEFENDANT."  THE LEGISLATIVE HISTORY
INDICATES THAT THIS PROVISION WAS ADDED TO ENSURE THAT THE STATUTE
WOULD NOT CONFLICT WITH THE PRINCIPLES OF THE DOUBLE JEOPARDY CLAUSE. 
SEE 41 CONG. REC. 2749 - 2819. 

/3/ THE STATUTE WAS AMENDED SEVERAL TIMES, BUT THE AMENDMENTS DID
NOT RENDER ITS CONSTRUCTION ANY SIMPLER.  THE MOST SIGNIFICANT CHANGE
IN THE STATUTE WAS THE 1942 AMENDMENT, 56 STAT. 271, IN WHICH CONGRESS
PROVIDED THAT SOME DISMISSALS SHOULD BE REVIEWED IN THE COURTS OF
APPEALS AND THAT THE SUPREME COURT'S APPELLATE JURISDICTION SHOULD
EXTEND TO PROSECUTIONS BY INFORMATION.  IN 1968, THE STATUTE WAS
FURTHER AMENDED TO AUTHORIZE GOVERNMENT APPEALS FROM PRETRIAL RULINGS
GRANTING MOTIONS TO SUPPRESS OR TO RETURN SEIZED PROPERTY.  82 STAT.
237. 

/4/ SEE, E.G., UNITED STATES V. WELLER, 401 U.S. 254 (1971); UNITED
STATES V. SISSON, 399 U.S. 267 (1970); UNITED STATES V. MERSKY, 361
U.S. 431 (1960); UNITED STATES V. BORDEN CO., 308 U.S. 188 (1939). 

/5/ THE NEW STATUTE, 18 U.S.C. 3731, WAS PASSED AS TITLE III OF THE
OMNIBUS CRIME CONTROL ACT OF 1970, PUB. L. 91 - 644, 84 STAT. 1890. 

/6/ EXPRESSIONS OF THE PRINCIPLE CAN BE FOUND IN ENGLISH LAW FROM
THE TIME OF THE YEAR BOOKS, AND AS EARLY AS THE 15TH CENTURY THE
ENGLISH COURTS HAD BEGUN TO USE THE TERM "JEOPARDY" IN CONNECTION WITH
THE PRINCIPLE AGAINST MULTIPLE TRIALS.  SEE KIRK, " JEOPARDY" DURING
THE PERIOD OF THE YEAR BOOKS, 82 U. PA. L. REV. 602 (1934). 

/7/ PART I, ART. XVI, OF NEW HAMPSHIRE'S CONSTITUTION OF 1784 READ:
" NO SUBJECT SHALL BE LIABLE TO BE TRIED, AFTER AN ACQUITTAL, FOR THE
SAME CRIME OR OFFENCE."  IT CONTAINED NO PROHIBITION, HOWEVER, AGAINST
RETRIAL AFTER CONVICTION.  4 F. THORPE, THE FEDERAL AND STATE
CONSTITUTIONS 2455 (1909). 

/8/ AMONG THE SUGGESTED AMENDMENTS THAT NEW YORK SENT TO THE
CONGRESS WITH ITS RATIFICATION DECLARATION WAS ONE THAT READ:  "THAT NO
PERSON OUGHT TO BE PUT TWICE IN JEOPARDY OF LIFE OR LIMB, FOR ONE AND
THE SAME OFFENCE; NOR, UNLESS IN CASE OF IMPEACHMENT, BE PUNISHED MORE
THAN ONCE FOR THE SAME OFFENCE."  1 J. ELLIOTT, DEBATES ON THE FEDERAL
CONSTITUTION 328 (1876).  THIS LANGUAGE BORROWED HEAVILY FROM
BLACKSTONE'S FORMULATION.  MARYLAND ALSO SENT A PROPOSED VERSION OF THE
DOUBLE JEOPARDY CLAUSE, WHICH READ:  "THAT THERE SHALL BE . . . NO
APPEAL FROM MATTER OF FACT, OR SECOND TRIAL AFTER ACQUITTAL; BUT THIS
PROVISION SHALL NOT EXTEND TO SUCH CASES AS MAY ARISE IN THE GOVERNMENT
OF THE LAND OR NAVAL FORCES."  ELLIOT, DEBATES 550. 

/9/ FROM THE BRIEF REPORT OF THE DEBATE IT APPEARS THAT BOTH SIDES
AGREED THAT A DEFENDANT COULD HAVE A SECOND TRIAL AFTER A CONVICTION,
BUT THE GOVERNMENT COULD NOT HAVE A NEW TRIAL AFTER AN ACQUITTAL. 
REPRESENTATIVE SHERMAN COMMENTED:  " IF THE (DEFENDANT) WAS ACQUITTED
ON THE FIRST TRIAL, HE OUGHT NOT TO BE TRIED A SECOND TIME; BUT IF HE
WAS CONVICTED ON THE FIRST, AND ANY THING SHOULD APPEAR TO SET THE
JUDGMENT ASIDE, HE WAS ENTITLED TO A SECOND, WHICH WAS CERTAINLY
FAVORABLE TO HIM."  1 ANNALS OF CONG. 753 (1789). 

/10/ THE PROSECUTION'S APPEAL RIGHTS WERE GENERALLY LIMITED TO CASES
IN WHICH THE ERROR APPEARED ON THE FACE OF THE RECORD, OR IN WHICH THE
DEFENDANT HAD OBTAINED HIS ACQUITTAL BY FRAUD OR TREACHERY.  SEE M.
FRIEDLAND, DOUBLE JEOPARDY 287 (1969). 

/11/ THIS EXCEPTION TO THE "ONE TRIAL" RULE HAS BEEN EXPLAINED ON TH
CONCLUSORY THEORIES THAT THE DEFENDANT WAIVES HIS DOUBLE JEOPARDY CLAIM
BY APPEALING HIS CONVICTION, OR THAT THE FIRST JEOPARDY CONTINUES UNTIL
HE IS ACQUITTED OR HIS CONVICTION BECOMES FINAL, SEE GREEN V. UNITED
STATES, 355 U.S. 184, 189 (1957).  AS MR. JUSTICE HARLAN NOTED IN
UNITED STATES V. TATEO, 377 U.S. 463, 465 - 466 (1964), HOWEVER, THE
PRACTICAL JUSTIFICATION FOR THE EXCEPTION IS SIMPLY THAT IT IS FAIRER
TO BOTH THE DEFENDANT AND THE GOVERNMENT. 

/12/ IN PEREZ, THE COURT EMPHASIZED THE LIMITED SCOPE OF THIS
EXCEPTION BY ADDING:  " TO BE SURE, THE POWER (TO DECLARE A MISTRIAL
AND SUBJECT THE DEFENDANT TO RETRIAL) OUGHT TO BE USED WITH THE
GREATEST CAUTION, UNDER URGENT CIRCUMSTANCES, AND FOR VERY PLAIN AND
OBVIOUS CAUSES."  9 WHEAT.  579, 580 (1824). 

/13/ ON A NUMBER OF OCCASIONS, THE COURT HAS OBSERVED THAT THE
DOUBLE JEOPARDY CLAUSE "PROHIBITS MERELY PUNISHING TWICE, OR ATTEMPTING
A SECOND TIME TO PUNISH CRIMINALLY, FOR THE SAME OFFENSE."  HELVERING
V. MITCHELL, 303 U.S. 391, 399 (1938).  SEE ALSO ONE LOT EMERALD CUT
STONES V. UNITED STATES, 409 U.S. 232, 235 - 236 (1972); STROUD V.
UNITED STATES, 251 U.S. 15, 18 (1919); CF. UNITED STATES V. JORN, 400
U.S. 470, 479 (1971). 

/14/ JUDGE LEARNED HAND TOOK THIS POSITION IN UNITED STATES V.
ZISBLATT, 172 F.2D 740, 743 (CA2), APPEAL DISMISSED ON THE GOVERNMENT'S
MOTION, 336 U.S. 934 (1949).  "SO LONG AS THE VERDICT OF GUILTY REMAINS
AS A DATUME, THE CORRECTION OF ERRORS OF LAW IN ATTACHING THE PROPER
LEGAL CONSEQUENCES TO IT DO NOT TRENCH UPON THE CONSTITUTIONAL
PROHIBITION." 

/15/ THE CHALLENGE IN KEPNER WAS BASED, NOT ON THE CONSTITUTION, BUT
ON A STATUTORY PROVISION THAT EXTENDED DOUBLE JEOPARDY PROTECTION TO
THE PHILIPPINES.  WHILE CASES CONSTRUING THAT STATUTE DO NOT
NECESSARILY CONTROL THE CONSTRUCTION OF THE DOUBLE JEOPARDY CLAUSE OF
THE FIFTH AMENDMENT, SEE GREEN V. UNITED STATES, 355 U.S., AT 197, WE
ACCEPT KEPNER AS HAVING CORRECTLY STATED THE RELEVANT DOUBLE JEOPARDY
PRINCIPLES. 

/16/ ALTHOUGH KEPNER TECHNICALLY INVOLVED ONLY ONE PROCEEDING, THE
COURT REGARDED THE SECOND FACTFINDING AS THE EQUIVALENT OF A SECOND
TRIAL.  IN SUBSEQUENT CASES, THIS COURT HAS TREATED THE KEPNER
PRINCIPLE AS BEING ADDRESSED TO THE EVIL OF SUCCESSIVE TRIALS, SEE
STROUD V. UNITED STATES, 251 U.S. 15, 18 (1919); PALKO V. CONNECTICUT,
302 U.S. 319, 322 - 323 (1937). 

/17/ UNDER RESPONDENT'S INTERPRETATION OF THE PASSAGE, THE RELIANCE
ON BALL IS DIFFICULT TO EXPLAIN.  THE RATIONALE OF THE BALL CASE, AND
PARTICULARLY THE PORTION QUOTED IN SISSON, TURNS ON THE FACT THAT AN
APPEAL MIGHT RESULT IN A SECOND TRIAL, WHICH WOULD NOT HAVE BEEN
NECESSARY IN SISSON.  ON THE NARROWER READING OF THE PASSAGE, THE
REFERENCE TO BALL IS PRECISELY IN POINT; THE VERDICT OF THE
HYPOTHETICAL JURY WOULD BE UNAPPEALABLE FOR THE VERY REASON STATED IN
THE QUOTATION FROM THE BALL CASE. 

IN ADDITION, RESPONDENT'S PROPOSED READING OF THE PASSAGE WOULD
CONSTITUTIONALIZE THE VERY COMMON-LAW DISTINCTIONS THAT THE SISSON
COURT ANTICIPATED AN AMENDED CRIMINAL APPEALS ACT WOULD ELIMINATE.  IF
NO POSTVERDICT ORDER EXCEPT A COMMON-LAW ARREST OF JUDGMENT IS
CONSTITUTIONALLY APPEALABLE, THIS COURT AND THE COURTS OF APPEALS WOULD
CONTINUE TO BE PLAGUED WITH THE "LIMITATIONS IMPOSED BY (THE) AWKWARD
AND ANCIENT (CRIMINAL APPEALS) ACT," 399 U.S., AT 308.  WORSE STILL,
THE UNHAPPY TASK OF EXPLORING PLEADING DISTINCTIONS THAT EXISTED AT
COMMON LAW WOULD NOW BE IMPOSED ON THE STATES, SEE BENTON V. MARYLAND,
395 U.S. 784 (1969). 

/18/ ON ANY VIEW, SISSON WOULD HAVE BEEN A SINGULARLY INAPPROPRIATE
CASE IN WHICH TO DECIDE THE CONSTITUTIONAL POINT.  THE CONSTITUTIONAL
QUESTION WAS NOT RAISED OR BRIEFED BY THE PARTIES, AND RESOLUTION OF
THE ISSUE IN THE MANNER RESPONDENT SUGGESTS WOULD HAVE MARKED A
SIGNIFICANT DEVELOPMENT IN DOUBLE JEOPARDY LAW, DESERVING OF PLENARY
TREATMENT. 

/19/ THE GOVERNMENT HAS ADVANCED THIS ARGUMENT, IF RATHER
CAUTIOUSLY, IN ITS BRIEF IN A COMPANION CASE, UNITED STATES V. JENKINS,
POST.  P. 358, UPON WHICH IT HAS RELIED IN THIS CASE.  SEE BRIEF FOR
UNITED STATES IN UNITED STATES V. JENKINS, NO. 73 - 1513, O.T. 1974,
PP. 24 - 25 N. 16. 

/20/ SEE, E.G., MAYERS & YARBROUGH, BIS VEXARI:  NEW TRIALS AND
SUCCESSIVE PROSECUTIONS, 74 HARV. L. REV. 1, 8 - 15 (1960); MILLER,
APPEALS BY THE STATE IN CRIMINAL CASES, 36 YALE L.J. 486 (1927). 

/21/ SEE ASHE V. SWENSON, 397 U.S. 436, 446 - 447 (1970); ID., AT
455 N. 11, 459 (BRENNAN, J., CONCURRING); GREEN V. UNITED STATES, 355
U.S., AT 187; COMMENT, DOUBLE JEOPARDY AND GOVERNMENT APPEALS OF
CRIMINAL DISMISSALS, 52 TEX. L. REV. 303, 340 - 342 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

RESPONDENT WILSON WAS INDICTED FOR CONVERTING TO HIS OWN USE FUNDS
OF LOCAL 367, IBEW, WHICH HE SERVED AS BUSINESS MANAGER AND FINANCIAL
SECRETARY.  THE THEORY OF THE PROSECUTION WAS THAT RESPONDENT HAD
CAUSED UNION FUNDS TO BE EXPENDED FOR HIS DAUGHTER'S WEDDING
RECEPTION.  IT WAS UNDISPUTED THAT A CHECK DRAWN ON THE UNION AND
SIGNED BY TWO UNION OFFICERS, BRINKER AND SCHAEFER, HAD BEEN FORWARDED
TO THE HOTEL WHERE THE WEDDING RECEPTION HAD BEEN HELD, AND THAT THE
HOTEL HAD APPLIED THE PAYMENT IN SATISFACTION OF DEBTS INCURRED ON
ACCOUNT OF THE RECEPTION. 

THE FUNDS WERE PAID IN NOVEMBER 1966.  AN INDICTMENT WAS RETURNED IN
OCTOBER 1971, THREE DAYS PRIOR TO THE RUNNING OF THE STATUTE OF
LIMITATIONS.  BY THAT TIME, NEITHER OF THE TWO SIGNATORIES TO THE UNION
CHECK WAS AVAILABLE TO TESTIFY IN THE CASE.  BRINKER HAD DIED IN 1968;
SCHAEFER WAS TERMINALLY ILL.  RESPONDENT FILED A PRETRIAL MOTION TO
DISMISS THE INDICTMENT ON THE GROUND THAT PREINDICTMENT DELAY VIOLATED
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  SEE UNITED STATES V.
MARION, 404 U.S. 307.  SPECIFICALLY, RESPONDENT ARGUED THAT THE
UNAVAILABILITY OF THE TWO SIGNATORIES, CAUSED BY PREINDICTMENT DELAY,
PREJUDICED HIS DEFENSE.  AFTER TWO PRETRIAL HEARINGS, THE DISTRICT
COURT DENIED THE MOTION.     AT THE TRIAL, IT WAS ESTABLISHED THAT THE
LOCAL'S ATTORNEY, ONE BURKE, HAD MADE A $1,000 DEPOSIT AT THE HOTEL
WHERE THE WEDDING RECEPTION WAS HELD, TO COVER EXPENSES.  A BILL FOR
THE BALANCE HAD BEEN MAILED BY THE HOTEL TO RESPONDENT'S HOME ADDRESS. 
FIVE MONTHS LATER THE CHECK SIGNED BY BRINKER AND SCHAEFER HAD
ARRIVED.  THE TESTIMONY ESTABLISHED THAT THE USUAL PROCEDURE FOR
ISSUANCE OF A CHECK WAS THE COMPLETION OF A VOUCHER SIGNED BY LOCAL
PRESIDENT SCHAEFER AND THE RECORDING SECRETARY, THUS SIGNIFYING
APPROVAL OF THE EXPENDITURE, PREPARATION OF A CHECK BY A SECRETARY, AND
SIGNATURE BY THE LOCAL PRESIDENT AND TREASURER.  IT WAS ESTABLISHED
THAT RESPONDENT HAD FIRST GIVEN BRINKER AND SCHAEFER THEIR OFFICE
POSITIONS, THOUGH THEY HAD BEEN ELECTED TO THE OFFICES THEY HELD IN THE
UNION. 

RESPONDENT TESTIFIED THAT HE HAD NEVER DIRECTED ANYONE TO ISSUE THE
CHECK IN QUESTION AND THAT HE HAD REIMBURSED BURKE PERSONALLY FOR THE
$1,000 DEPOSIT.  HE DID ACKNOWLEDGE, HOWEVER, THAT BURKE HAD TOLD HIM
IN NOVEMBER 1966, SHORTLY AFTER THE PAYMENT REACHED THE HOTEL, THAT THE
BILL HAD BEEN PAID. 

AT THE CLOSE OF EVIDENCE RESPONDENT RENEWED HIS MOTION TO DISMISS ON
ACCOUNT OF PREINDICTMENT DELAY.  THE JUDGE WITHHELD DECISION UNTIL
RECEIVING THE VERDICT. 

THE JURY FOUND RESPONDENT GUILTY.  THE DISTRICT COURT THEN RULED ON
RESPONDENT'S MOTION.  IT FOUND THAT THE GOVERNMENT HAD UNREASONABLY
DELAYED THE INDICTMENT 16 MONTHS AFTER COMPLETION OF AN FBI
INVESTIGATION IN 1970.  THE COURT FOUND THAT THE DELAY CAUSED THE UNION
PRESIDENT SCHAEFER TO BE UNAVAILABLE AS A TRIAL WITNESS.  (BRINKER HAD
DIED IN 1968, WHILE THE GOVERNMENT'S INVESTIGATION WAS IN PROGRESS.) 
SINCE, IN THE COURT'S VIEW, THE PRESENCE OF SCHAEFER, THE SIGNER OF THE
CHECK AND VOUCHER, WOULD HAVE ADDED "TESTIMONY OF UTMOST IMPORTANCE TO
THE TRIAL," THE COURT RULED THAT RESPONDENT HAD BEEN SUBSTANTIALLY
PREJUDICED BY THE DELAY THAT DEPRIVED THE TRIAL OF SCHAEFER'S
TESTIMONY.  ACCORDINGLY, THE COURT DISMISSED THE INDICTMENT. 

THE GOVERNMENT SOUGHT TO APPEAL, ARGUING THAT THE DISMISSAL HAD BEEN
ERRONEOUS.  THE COURT OF APPEALS HELD THAT APPEAL BY THE GOVERNMENT
VIOLATED THE DOUBLE JEOPARDY CLAUSE. 

IN UNITED STATES V. SISSON, 399 U.S. 267, FACTS DEVELOPED IN THE
TRIAL OF SISSON LED A JURY TO CONVICT HIM.  BUT AFTER THE JURY VERDICT
THE DISTRICT COURT RENDERED A POSTVERDICT OPINION CALLED "AN ARREST OF
JUDGMENT" WHICH THIS COURT CALLED "A POST-VERDICT DIRECTED ACQUITTAL,"
ID., AT 290, WHICH WAS DESCRIBED AS "A LEGAL DETERMINATION ON THE BASIS
OF FACTS ADDUCED AT THE TRIAL RELATING TO THE GENERAL ISSUE OF THE
CASE," ID., AT 290 N. 19, A READING REAFFIRMED IN UNITED STATES V.
JORN, 400 U.S. 470, 478 N. 7. 

IN THE PRESENT CASE THE DISTRICT COURT REVIEWED THE EVIDENCE GIVEN
AT THE TRIAL AND CONCLUDED THAT THE RESPONDENT HAD BEEN PREJUDICED
BECAUSE OF TESTIMONY THE MISSING WITNESS (TERMINALLY ILL) PROBABLY
WOULD HAVE ADDED.  WHAT WAS ASKED ON APPEAL WAS THAT THE APPELLATE
JUDGES REVIEW INDEPENDENTLY THE EVIDENCE AT THE TRIAL BEARING ON GUILT
AND REACH A DIFFERENT CONCLUSION.  IN UNITED STATES V. BALL, 163 U.S.
662, 671, THE COURT SAID IN DICTA THAT HAVE HAD A CONTINUING IMPACT ON
THE LAW:  " THE VERDICT OF ACQUITTAL WAS FINAL, AND COULD NOT BE
REVIEWED, ON ERROR OR OTHERWISE, WITHOUT PUTTING HIM TWICE IN JEOPARDY,
AND THEREBY VIOLATING THE CONSTITUTION."  (EMPHASIS SUPPLIED.) 

IN KEPNER V. UNITED STATES, 195 U.S. 100, THE DEFENDANT WAS
ACQUITTED OF AN EMBEZZLING CHARGE FOLLOWING A NONJURY TRIAL IN A COURT
OF THE PHILIPPINES.  THE GOVERNMENT TOOK AN APPEAL TO THE SUPREME COURT
OF THE PHILIPPINES, WHICH INDEPENDENTLY REVIEWED THE RECORD AND FOUND
KEPNER GUILTY.  THIS COURT REVERSED, HOLDING THAT THE DOUBLE JEOPARDY
CLAUSE BARRED THE ENTRY OF CONVICTION BY THE APPELLATE COURT.  /1/ THE
COURT CONSIDERED APPELLATE REVIEW BY THE PHILLIPINE SUPREME COURT TO BE
EQUIVALENT TO THE SECOND TRIAL IN BALL.  THE COURT ACCORDINGLY HELD: 

" IT IS, THEN, THE SETTLED LAW OF THIS COURT THAT FORMER

JEOPARDY INCLUDES ONE WHO HAS BEEN ACQUITTED BY A VERDICT DULY

  RENDERED . . . . THE PROTECTION IS NOT . . . AGAINST THE PERIL OF

  SECOND PUNISHMENT, BUT AGAINST BEING AGAIN TRIED FOR THE SAME

  OFFENSE."  195 U.S., AT 130. 

FONG FOO V. UNITED STATES, 369 U.S. 141, INVOLVED A TRIAL NOT
COMPLETED BUT PROMISING TO BE "LONG AND COMPLICATED," WHERE THE TRIAL
JUDGE DIRECTED A VERDICT FOR THE DEFENDANTS ON THE GROUND OF
PROSECUTORIAL IMPROPRIETIES AND LACK OF CREDIBILITY OF GOVERNMENT
WITNESSES.  THE COURT OF APPEALS HAD HELD THAT THE TRIAL JUDGE HAD NO
POWER TO DIRECT AN ACQUITTAL ON THE RECORD BEFORE IT.  THIS COURT
REVERSED, THOUGH THE COURT OF APPEALS "THOUGHT, NOT WITHOUT REASON,
THAT THE ACQUITTAL WAS BASED UPON AN EGREGIOUSLY ERRONEOUS FOUNDATION,"
ID., AT 143.  THE DICTUM OF BALL, QUOTED ABOVE, WAS DEEMED
CONTROLLING.  IBID. 

IN THE PRESENT CASE, AS IN FONG FOO, THE RULING OF THE TRIAL COURT
IS BASED IN PART ON THE EVIDENCE ADDUCED AT THE TRIAL AND IN PART ON
OTHER RELATED ISSUES.  THUS THE ISSUE OF A SPEEDY TRIAL IN THE PRESENT
CASE IS NOT REVIEWABLE, FOR IT IS PART AND PARCEL OF THE PROCESS OF
WEIGHING THE GOVERNMENT'S EVIDENTIARY CASE AGAINST RESPONDENT. 
THEREFORE WE SHOULD AFFIRM THE JUDGMENT BELOW. 

/1/ TECHNICALLY, THE COURT WAS CONSTRUING, NOT THE DOUBLE JEOPARDY
CLAUSE, BUT A STATUTE PASSED BY CONGRESS FOR ADMINISTRATION OF THE
PHILIPPINES THAT CONTAINED IDENTICAL LANGUAGE.  BUT THE COURT TREATED
THE QUESTION AS A CONSTITUTIONAL ONE, FINDING THE ABOVE-QUOTED DICTUM
FROM BALL CONTROLLING. 

DEPUTY SOLICITOR GENERAL FREY ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL PETERSEN, AND EDWARD R. KORMAN. 

PHILIP D. LAUER ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :




UNITED STATES V. JENKINS, 420 U.S. 358 


       UNITED STATES V. JENKINS

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 73 - 1513.  ARGUED DECEMBER 9, 1974--, DECIDED FEBRUARY

           25, 1975; 490 F.2D 868, AFFIRMED. 


    AFTER RESPONDENT WAS ORDERED TO REPORT FOR INDUCTION, HIS LOCAL

  DRAFT BOARD REFUSED TO POSTPONE HIS INDUCTION TO ALLOW HIM TO

  CLAIM A CONSCIENTIOUS OBJECTOR CLASSIFICATION, AND HE WAS

  SUBSEQUENTLY INDICTED FOR REFUSING AND FAILING TO REPORT FOR

  INDUCTION.  FOLLOWING A BENCH TRIAL THE DISTRICT COURT

  "DISMISSED" THE INDICTMENT AND "DISCHARGED" RESPONDENT, HOLDING

  THAT, ALTHOUGH UNDER EHLERT V. UNITED STATES, 402 U.S. 99, THE

  BOARD WAS NOT REQUIRED TO ENTERTAIN CONSCIENTIOUS OBJECTOR CLAIMS

  ARISING BETWEEN NOTICE OF INDUCTION AND THE SCHEDULED INDUCTION

  DATE, NEVERTHELESS, SINCE RESPONDENT FAILED TO REPORT AT A TIME

  WHEN EHLERT HAD NOT YET BEEN DECIDED AND WHEN THE PREVAILING LAW

  OF THE CIRCUIT REQUIRED A LOCAL BOARD TO REOPEN A REGISTRANT'S

  CLASSIFICATION IF HIS CONSCIENTIOUS OBJECTOR VIEWS RIPENED ONLY

  AFTER HE HAD BEEN NOTIFIED TO REPORT FOR INDUCTION, RESPONDENT

  WAS ENTITLED TO A POSTPONEMENT OF INDUCTION UNTIL THE BOARD

  CONSIDERED HIS CONSCIENTIOUS OBJECTOR CLAIM, AND THAT IT WOULD BE

  UNFAIR TO APPLY EHLERT TO RESPONDENT.  THE COURT OF APPEALS

  DISMISSED THE GOVERNMENT'S APPEAL UNDER 18 U.S.C. 3731 ON THE

  GROUND THAT IT WAS BARRED BY THE DOUBLE JEOPARDY CLAUSE,

CONCLUDING THAT ALTHOUGH THE DISTRICT COURT HAD CHARACTERIZED ITS

  ACTION AS A DISMISSAL OF THE INDICTMENT, RESPONDENT HAD IN EFFECT

  BEEN ACQUITTED, SINCE THE DISTRICT COURT HAD RELIED UPON FACTS

  DEVELOPED AT TRIAL AND HAD CONCLUDED "THAT THE STATUTE SHOULD NOT

  BE APPLIED TO (RESPONDENT) AS A MATTER OF FACT."  HELD:  ALTHOUGH

  IT IS NOT CLEAR WHETHER OR NOT THE DISTRICT COURT'S JUDGMENT

  DISCHARGING RESPONDENT WAS A RESOLUTION OF THE FACTUAL ISSUES

  AGAINST THE GOVERNMENT, IT SUFFICES FOR DOUBLE JEOPARDY PURPOSES,

  AND THEREFORE FOR DETERMINING APPEALABILITY UNDER 18 U.S.C. 3731,

  THAT FURTHER PROCEEDINGS OF SOME SORT, DEVOTED TO RESOLVING

  FACTUAL ISSUES GOING TO THE ELEMENTS OF THE OFFENSE CHARGED AND

  RESULTING IN SUPPLEMENTAL FINDINGS, WOULD HAVE BEEN REQUIRED UPON

  REVERSAL AND REMAND.  THE TRIAL, WHICH COULD HAVE RESULTED IN A

  CONVICTION, HAS LONG SINCE TERMINATED IN RESPONDENT'S FAVOR, AND

  TO SUBJECT HIM TO ANY FURTHER PROCEEDINGS, EVEN IF THE DISTRICT

  COURT WERE TO RECEIVE NO ADDITIONAL EVIDENCE, WOULD VIOLATE THE

  DOUBLE JEOPARDY CLAUSE.  PP. 365 - 370. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, MARSHALL, BLACKMUN, AND POWELL,

  JJ., JOINED.  DOUGLAS, J., FILED A STATEMENT CONCURRING IN THE

  JUDGMENT, IN WHICH BRENNAN, J., JOINED, POST, P. 370. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENT JENKINS WAS INDICTED AND CHARGED WITH VIOLATING 12(A) OF
THE MILITARY SELECTIVE SERVICE ACT, 62 STAT. 622, AS AMENDED, 50 U.S.C.
APP. 462(A) FOR "KNOWINGLY REFUSING AND FAILING TO SUBMIT TO INDUCTION
INTO THE ARMED FORCES OF THE UNITED STATES."  APP.  3.  AFTER A BENCH
TRIAL, THE DISTRICT COURT "DISMISSED" THE INDICTMENT AND "DISCHARGED"
THE RESPONDENT.  349 F. SUPP. 1068, 1073 (EDNY 1972).  THE GOVERNMENT
SOUGHT TO APPEAL THIS RULING PURSUANT TO 18 U.S.C. 3731, /1/  BUT THE
COURT OF APPEALS FOR THE SECOND CIRCUIT DISMISSED THE APPEAL "FOR LACK
OF JURISDICTION ON THE GROUND THAT THE DOUBLE JEOPARDY CLAUSE PROHIBITS
FURTHER PROSECUTION."  490 F.2D 868, 880 (1973).  WE GRANTED CERTIORARI
IN THIS CASE AND UNITED STATES V. WILSON, ANTE, P. 332, ALSO DECIDED
TODAY, TO CONSIDER THE APPLICATION OF THE DOUBLE JEOPARDY CLAUSE OF THE
FIFTH AMENDMENT TO GOVERNMENT APPEALS IN CRIMINAL CASES.  417 U.S. 908
(1974). 

        I 

RESPONDENT, WHO HAD FIRST REGISTERED WITH HIS LOCAL DRAFT BOARD IN
1966, WAS CLASSIFIED 1 - A BY HIS LOCAL BOARD ON NOVEMBER 18, 1970.  HE
WAS FOUND PHYSICALLY FIT FOR INDUCTION, AND ON FEBRUARY 4, 1971, THE
LOCAL BOARD SENT RESPONDENT AN ORDER TO REPORT FOR INDUCTION ON
FEBRUARY 24, 1971.  AFTER CONSULTING AN ATTORNEY AND A LOCAL DRAFT
COUNSELOR, RESPONDENT WROTE THE LOCAL BOARD AND REQUESTED SELECTIVE
SERVICE FORM 150 FOR A CONSCIENTIOUS OBJECTOR CLASSIFICATION.  HAVING
RECEIVED NO RESPONSE FROM THE LOCAL BOARD BY FEBRUARY 23, THE DAY
BEFORE HE HAD BEEN ORDERED TO REPORT FOR INDUCTION, RESPONDENT WENT IN
PERSON TO THE LOCAL BOARD TO REQUEST FORM 150.  ALTHOUGH RESPONDENT DID
SECURE THE DESIRED FORM, LOCAL BOARD OFFICIALS WERE DIRECTED BY
SELECTIVE SERVICE HEADQUARTERS NOT TO POSTPONE HIS INDUCTION TO ALLOW
HIM TO COMPLETE AND SUBMIT THE CONSCIENTIOUS OBJECTOR FORM.  RESPONDENT
DID NOT REPORT FOR INDUCTION ON FEBRUARY 24, 1971, AND HE WAS
SUBSEQUENTLY INDICTED. 

RESPONDENT WAS ARRAIGNED ON JANUARY 13, 1972, AND PLEADED NOT
GUILTY.  THE PARTIES WERE DIRECTED TO FILE ALL PRETRIAL MOTIONS WITHIN
45 DAYS, BUT NO PRETRIAL MOTIONS WERE FILED WITHIN THAT PERIOD.  THE
CASE WAS CALLED AND CONTINUED ON SEVERAL OCCASIONS.  DURING THIS PERIOD
RESPONDENT FILED A MOTION FOR JUDGMENT OF ACQUITTAL BASED, IN PART, ON
THE FOLLOWING GROUND: 

     " THE FAILURE OF THE LOCAL BOARD TO POSTPONE THE INDUCTION

  ORDER PENDING THE DETERMINATION OF THE DEFENDANT'S CLAIM AS A

  CONSCIENTIOUS OBJECTOR WAS ARBITRARY AND CONTRARY TO LAW AND

  RENDERED THE ORDER TO REPORT FOR INDUCTION INVALID.  UNITED

  STATES V. GEAREY, 368 F.2D 144 (2ND CIR. 1966)."  APP.  4.

IN GEARY THE COURT OF APPEALS HAD INTERPRETED THE CONTROLLING SELECTIVE
SERVICE REGULATION /2/ TO REQUIRE A LOCAL BOARD TO REOPEN A
REGISTRANT'S CLASSIFICATION IF IT FOUND THAT THE REGISTRANT'S
CONSCIENTIOUS OBJECTOR VIEWS HAD RIPENED ONLY AFTER HE HAD BEEN
NOTIFIED TO REPORT FOR INDUCTION.  AT THE TIME RESPONDENT WAS ORDERED
TO REPORT FOR INDUCTION, GEAREY REMAINED THE LAW OF THE CIRCUIT.  TWO
MONTHS LATER, HOWEVER, THIS COURT REJECTED GEAREY IN A DECISION
AFFIRMING A CONTRARY HOLDING FROM ANOTHER CIRCUIT.  EHLERT V. UNITED
STATES, 402 U.S. 99 (1971). 

WHEN THE CASE PROCEEDED TO TRIAL, RESPONDENT WAIVED TRIAL TO A JURY,
AND THE CASE WAS TRIED TO THE COURT.  AT THE CLOSE OF THE EVIDENCE, THE
COURT RESERVED DECISION IN ORDER TO GIVE THE PARTIES AN OPPORTUNITY TO
SUBMIT PROPOSED FINDINGS.  ALTHOUGH IT DOES NOT APPEAR FROM THE RECORD
THAT EITHER PARTY REQUESTED THE COURT TO FIND THE FACTS SPECIALLY, FED.
RULE CRIM. PROC. 23(C), THE COURT FILED WRITTEN FINDINGS OF FACT AND
CONCLUSIONS OF LAW, AND DIRECTED THAT THE INDICTMENT BE DISMISSED AND
THE RESPONDENT BE DISCHARGED.  THE COURT ACKNOWLEDGED THAT RESPONDENT
HAD FAILED TO REPORT FOR INDUCTION AS ORDERED, 349 F.SUPP., AT 1070,
AND THAT UNDER EHLERT THE BOARD IS NOT REQUIRED TO ENTERTAIN
CONSCIENTIOUS OBJECTOR CLAIMS ARISING BETWEEN NOTICE OF INDUCTION AND
THE SCHEDULED INDUCTION DATE.  NEVERTHELESS, SINCE RESPONDENT FAILED TO
REPORT FOR INDUCTION AT A TIME WHEN EHLERT HAD NOT YET BEEN DECIDED AND
GEAREY REPRESENTED THE PREVAILING LAW, RESPONDENT WAS ENTITLED TO A
POSTPONEMENT OF INDUCTION UNTIL THE BOARD CONSIDERED HIS CONSCIENTIOUS
OBJECTOR CLAIM.  THE COURT REASONED THAT IT WOULD BE UNFAIR TO APPLY
EHLERT TO RESPONDENT: 

" THIS COURT CANNOT PERMIT THE CRIMINAL PROSECUTION OF THE DEFENDANT
UNDER THESE CIRCUMSTANCES WITHOUT SERIOUSLY ERODING FUNDAMENTAL AND
BASIC EQUITABLE PRINCIPLES OF LAW."  349 F.SUPP., AT 1073.  /3/ 

THE GOVERNMENT FILED A TIMELY NOTICE OF APPEAL /4/ AND ARGUED THAT
THE DISTRICT COURT HAD INCORRECTLY CONCLUDED THAT EHLERT WAS NOT
RETROACTIVE.  /5/ SINCE THIS COURT HELD LONG AGO THAT THE GOVERNMENT
CANNOT BRING AN APPEAL IN A CRIMINAL CASE ABSENT AN EXPRESS ENABLING
STATUTE, UNITED STATES V. SANGES, 144 U.S. 310 (1892), THE COURT OF
APPEALS CONSIDERED FIRST WHETHER PETITIONER'S APPEAL WAS AUTHORIZED BY
18 U.S.C. 3731. 

THE GOVERNMENT CONTENDED, AND RESPONDENT DID NOT DISPUTE, THAT THE
INTENTION OF CONGRESS IN AMENDING 18 U.S.C. 3731 IN 1971 WAS TO EXTEND
THE GOVERNMENT'S RIGHT TO APPEAL TO THE FULLEST EXTENT CONSONANT WITH
THE FIFTH AMENDMENT.  /6/  JUDGE FRIENDLY, WRITING FOR THE COURT OF
APPEALS, CAREFULLY REVIEWED THE EVOLUTION OF THE DOUBLE JEOPARDY CLAUSE
AND CONCLUDED THAT THE DRAFTSMEN "INTENDED TO IMPORT INTO THE
CONSTITUTION THE COMMON LAW PROTECTIONS MUCH AS THEY WERE DESCRIBED BY
BLACKSTONE."  490 F.2D, AT 873.  WHILE AVAILABLE EVIDENCE WAS EQUIVOCAL
ON WHETHER "THE CROWN'S INABILITY TO APPEAL AN ACQUITTAL AFTER A TRIAL
ON THE MERITS" WAS INCORPORATED IN THE COMMON-LAW CONCEPT OF DOUBLE
JEOPARDY, THE MAJORITY WAS OF THE VIEW THAT DECISIONS BY THIS COURT HAD
RESOLVED ANY SUCH AMBIGUITY ADVERSELY TO THE GOVERNMENT.  ID., AT 874,
CITING UNITED STATES V. BALL, 163 U.S. 662 (1896); KEPNER V. UNITED
STATES, 195 U.S. 100 (1904); FONG FOO V. UNITED STATES, 369 U.S. 141
(1962); UNITED STATES V. SISSON, 399 U.S. 267 (1970).  ALTHOUGH THE
DISTRICT COURT HAD CHARACTERIZED ITS ACTION AS A DISMISSAL OF THE
INDICTMENT, THE COURT OF APPEALS CONCLUDED THAT THE RESPONDENT HAD BEEN
ACQUITTED SINCE THE DISTRICT COURT HAD RELIED UPON FACTS DEVELOPED AT
TRIAL AND HAD CONCLUDED "THAT THE STATUTE SHOULD NOT BE APPLIED TO
(RESPONDENT) AS A MATTER OF FACT."  490 F.2D, AT 878. 

JUDGE LUMBARD DISSENTED ON TWO GROUNDS.  FIRST, AN APPEAL BY THE
GOVERNMENT WAS PERMISSIBLE SINCE THE DISTRICT COURT HAD PROPERLY
CHARACTERIZED ITS ACTION AS A DISMISSAL RATHER THAN AN ACQUITTAL.  THE
DISTRICT COURT'S DECISION WAS "ESSENTIALLY A LEGAL DETERMINATION
CONSTRUING THE STATUTE ON WHICH THE INDICTMENT WAS BASED," ID., AT 882,
AND NOT REALLY AN ADJUDICATION ON THE MERITS IN THE SENSE THAT IT
RESTED ON FACTS BROUGHT OUT AT TRIAL.  SECOND, EVEN IF THE DISTRICT
COURT DID ACQUIT RESPONDENT, THE DOUBLE JEOPARDY CLAUSE DOES NOT STAND
AS AN ABSOLUTE BARRIER AGAINST APPEALS BY THE GOVERNMENT; THERE IS A
SOCIETAL INTEREST TO BE WEIGHED IN DETERMINING THE APPEALABILITY OF THE
DECISION.  /7/

        II 

WHEN A CASE HAS BEEN TRIED TO A JURY, THE DOUBLE JEOPARDY CLAUSE
DOES NOT PROHIBIT AN APPEAL BY THE GOVERNMENT PROVIDING THAT A RETRIAL
WOULD NOT BE REQUIRED IN THE EVENT THE GOVERNMENT IS SUCCESSFUL IN ITS
APPEAL.  UNITED STATES V. WILSON, ANTE, AT 344 - 345, 352 - 353.  WHEN
THIS PRINCIPLE IS APPLIED TO THE SITUATION WHERE THE JURY RETURNS A
VERDICT OF GUILT BUT THE TRIAL COURT THEREAFTER ENTERS A JUDGMENT OF
ACQUITTAL, AN APPEAL IS PERMITTED.  IN THAT SITUATION A CONCLUSION BY
AN APPELLATE COURT THAT THE JUDGMENT OF ACQUITTAL WAS IMPROPER DOES NOT
REQUIRE A CRIMINAL DEFENDANT TO SUBMIT TO A SECOND TRIAL; THE ERROR CAN
BE CORRECTED ON REMAND BY THE ENTRY OF A JUDGMENT ON THE VERDICT.  TO
BE SURE, THE DEFENDANT WOULD PREFER THAT THE GOVERNMENT NOT BE
PERMITTED TO APPEAL OR THAT THE JUDGMENT OF CONVICTION NOT BE ENTERED,
BUT THIS INTEREST OF THE DEFENDANT IS NOT ONE THAT THE DOUBLE JEOPARDY
CLAUSE WAS DESIGNED TO PROTECT. 

SINCE THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT NOWHERE
DISTINGUISHES BETWEEN BENCH AND JURY TRIALS, THE PRINCIPLES GIVEN
EXPRESSION THROUGH THAT CLAUSE APPLY TO CASES TRIED TO A JUDGE.  WHILE
THE PROTECTION AGAINST DOUBLE JEOPARDY HAS MOST OFTEN BEEN ARTICULATED
IN THE CONTEXT OF JURY TRIALS, /8/ THE RECENT DECISION BY CONGRESS TO
AUTHORIZE GOVERNMENT APPEALS WHENEVER CONSISTENT WITH THE DOUBLE
JEOPARDY CLAUSE, WHEN COMBINED WITH THE INCREASING NUMBERS /9/ OF BENCH
TRIALS, MAKES THIS AREA IMPORTANT THOUGH UNILLUMINATED BY PRIOR
DECISIONS OF THIS COURT. 

A GENERAL FINDING OF GUILT BY A JUDGE MAY BE ANALOGIZED TO A VERDICT
OF "GUILTY" RETURNED BY A JURY.  MULLONEY V. UNITED STATES, 79 F.2D
566, 584 (CA1 1935), CERT. DENIED, 296 U.S. 658 (1936).  IN A CASE
TRIED TO A JURY, THE DISTINCTION BETWEEN THE JURY'S VERDICT OF GUILTY
AND THE COURT'S RULING ON QUESTIONS OF LAW IS EASILY PERCEIVED.  IN A
BENCH TRIAL, BOTH FUNCTIONS ARE COMBINED IN THE JUDGE, AND A GENERAL
FINDING OF "NOT GUILTY" MAY REST EITHER ON THE DETERMINATION OF FACTS
IN FAVOR OF A DEFENDANT OR ON THE RESOLUTION OF A LEGAL QUESTION
FAVORABLY TO HIM.  IF THE COURT PREPARES SPECIAL FINDINGS OF FACT,
EITHER BECAUSE THE GOVERNMENT OR THE DEFENDANT REQUESTED THEM /10/ OR
BECAUSE THE JUDGE HAS ELECTED TO MAKE THEM SUA SPONTE, /11/ IT MAY BE
POSSIBLE UPON SIFTING THOSE FINDINGS TO DETERMINE THAT THE COURT'S
FINDING OF "NOT GUILTY" IS ATTRIBUTABLE TO AN ERRONEOUS CONCEPTION OF
THE LAW WHEREAS THE COURT HAS RESOLVED AGAINST THE DEFENDANT ALL OF THE
FACTUAL ISSUES NECESSARY TO SUPPORT A FINDING OF GUILT UNDER THE
CORRECT LEGAL STANDARD.  THE GOVERNMENT ARGUES THAT THIS IS ESSENTIALLY
WHAT HAPPENED IN THIS CASE.  BRIEF FOR UNITED STATES 11 - 14. 

WE ARE LESS CERTAIN THAN THE GOVERNMENT, HOWEVER, OF THE BASIS UPON
WHICH THE DISTRICT COURT RULED.  IT IS, TO BE SURE, NOT CLEAR THAT THE
DISTRICT COURT RESOLVED ISSUES OF FACT IN FAVOR OF RESPONDENT.  BUT
NEITHER IS IT CLEAR TO US THAT THE DISTRICT COURT, IN ITS FINDINGS OF
FACT AND CONCLUSIONS OF LAW, EXPRESSLY OR EVEN IMPLIEDLY FOUND AGAINST
RESPONDENT ON ALL THE ISSUES NECESSARY TO ESTABLISH GUILT UNDER EVEN
THE GOVERNMENT'S FORMULATION OF THE APPLICABLE LAW.  THE COURT'S
OPINION CERTAINLY CONTAINS NO GENERAL FINDING OF GUILT, AND ALTHOUGH
THE SPECIFIC FINDINGS RESOLVED AGAINST RESPONDENT MANY OF THE COMPONENT
ELEMENTS OF THE OFFENSE, THERE IS NO FINDING ON THE STATUTORY ELEMENT
OF "KNOWLEDGE."  IN LIGHT OF THE JUDGE'S DISCUSSION OF THE GEAREY ISSUE
IN HIS OPINION, SUCH AN OMISSION MAY HAVE REFLECTED HIS CONCLUSION THAT
THE GOVERNMENT HAD FAILED TO ESTABLISH THE REQUISITE CRIMINAL INTENT
BEYOND A REASONABLE DOUBT.  SEE N.3, SUPRA. 

ON SUCH A RECORD, A DETERMINATION BY THE COURT OF APPEALS FAVORABLE
TO THE GOVERNMENT ON THE MERITS OF THE RETROACTIVITY ISSUE TENDERED TO
IT BY THE GOVERNMENT WOULD NOT JUSTIFY A REVERSAL WITH INSTRUCTIONS TO
REINSTATE THE GENERAL FINDING OF GUILT:  THERE WAS NO SUCH FINDING, IN
FORM OR SUBSTANCE, TO REINSTATE.  WE HOLD TODAY IN WILSON, SUPRA, THAT
THE DOUBLE JEOPARDY CLAUSE DOES NOT BAR AN APPEAL WHEN ERRORS LF LAW
MAY BE CORRECTED AND THE RESULT OF SUCH CORRECTION WILL SIMPLY BE A
REINSTATEMENT OF A JURY'S VERDICT OF GUILTY OR A JUDGE'S FINDING OF
GUILT.  BUT BECAUSE OF THE UNCERTAINTY AS TO THE BASIS FOR THE DISTRICT
COURT'S ACTION HERE, WILSON DOES NOT GOVERN THIS CASE. 

THE GOVERNMENT SUGGESTS TWO POSSIBLE THEORIES, EACH OF WHICH WOULD GO
BEYOND OUR HOLDING IN WILSON, FOR PERMITTING AN APPEAL EVEN THOUGH THE
TRIAL PROCEEDINGS DID NOT RESULT IN EITHER A VERDICT OR A FINDING OF
GUILT.  FIRST, THE GOVERNMENT SUGGESTS THAT "WHETHER A NEW TRIAL MUST
FOLLOW AN APPEAL IS ALWAYS A RELEVANT CONSIDERATION," BUT NO MORE; THE
DOUBLE JEOPARDY CLAUSE IS NOT AN ABSOLUTE BAR IN SUCH A SITUATION. 
/12/ SECOND, AT LEAST IN A BENCH TRIAL SETTING, THE GOVERNMENT CONTENDS
THAT THE CONCEPT OF "TRIAL" MAY BE VIEWED QUITE BROADLY.  IF, IN A
BENCH TRIAL, A JUDGE HAS RULED IN FAVOR OF THE DEFENDANT AT THE CLOSE
OF THE GOVERNMENT'S CASE ON AN ERRONEOUS LEGAL THEORY, THE GOVERNMENT
OUGHT TO BE ABLE TO APPEAL; IF THE APPEAL WERE SUCCESSFUL, ANY
SUBSEQUENT PROCEEDINGS INCLUDING, PRESUMABLY, THE REOPENING OF THE
PROCEEDING FOR THE ADMISSION OF ADDITIONAL EVIDENCE, WOULD MERELY BE A
"CONTINUATION OF THE FIRST TRIAL."  /13/  TR. OF ORAL ARG. 16.  THIS
THEORY WOULD ALSO PERMIT REMANDING A CASE TO THE DISTRICT COURT FOR
MORE EXPLICIT FINDINGS. 

WE ARE UNABLE TO ACCEPT THE GOVERNMENT'S CONTENTIONS.  BOTH REST
UPON AN ASPECT OF THE CONTINUING JEOPARDY" CONCEPT THAT WAS ARTICULATED
BY MR. JUSTICE HOLMES IN HIS DISSENTING OPINION IN KEPNER V. UNITED
STATES, 195 U.S., AT 134 - 137, BUT HAS NEVER BEEN ADOPTED BY A
MAJORITY OF THIS COURT.  BECAUSE UNTIL RECENTLY APPEALS BY THE
GOVERNMENT HAVE BEEN AUTHORIZED BY STATUTE ONLY IN SPECIFIED AND
LIMITED CIRCUMSTANES, MOST OF OUR DOUBLE JEOPARDY HOLDINGS HAVE COME IN
CASES WHERE THE DEFENDANT HAS APPEALED FROM A JUDGMENT OF CONVICTION. 
SEE, E.G., GREEN V. UNITED STATES, 355 U.S. 184 (1957); TRONO V. UNITED
STATES, 199 U.S. 521 (1905); UNITED STATES V. BALL, 163 U.S., AT 671 -
672.  IN THOSE FEW CASES THAT HAVE REACHED THIS COURT WHERE THE
APPELLATE PROCESS WAS INITIATED BY THE GOVERNMENT FOLLOWING A VERDICT
OF ACQUITTAL, THE COURT HAS FOUND THE APPEAL BARRED BY THE DOUBLE
JEOPARDY CLAUSE.  SEE, E.G., KEPNER V. UNITED STATES, SUPRA; FONG FOO
V. UNITED STATES, 369 U.S. 141 (1962).  IN THOSE CASES, WHERE THE
DEFENDANTS HAD NOT BEEN ADJUDGED GUILTY, THE GOVERNMENT'S APPEAL WAS
NOT PERMITTED SINCE FURTHER PROCEEDINGS, USUALLY IN THE FORM OF A FULL
RETRIAL, WOULD HAVE FOLLOWED.  HERE THERE WAS A JUDGMENT DISCHARGING
THE DEFENDANT, ALTHOUGH WE CANNOT SAY WITH ASSURANCE WHETHER IT WAS, OR
WAS NOT, A RESOLUTION OF THE FACTUAL ISSSUES AGAINST THE GOVERNMENT. 
BUT IT IS ENOUGH FOR PURPOSES OF THE DOUBLE JEOPARDY CLAUSE, AND
THEREFORE FOR THE DETERMINATION OF APPEALABILITY UNDER 18 U.S.C. 3731,
THAT FURTHER PROCEEDINGS OF SOME SORT, DEVOTED TO THE RESOLUTION OF
FACTUAL ISSUES GOING TO THE ELEMENTS OF THE OFFENSE CHARGED, WOULD HAVE
BEEN REQUIRED UPON REVERSAL AND REMAND.  EVEN IF THE DISTRICT COURT
WERE TO RECEIVE NO ADDITIONAL EVIDENCE, IT WOULD STILL BE NECESSARY FOR
IT TO MAKE SUPPLEMENTAL FINDINGS.  THE TRIAL, WHICH COULD HAVE RESULTED
IN A JUDGMENT OF CONVICTION, HAS LONG SINCE TERMINATED IN RESPONDENT'S
FAVOR.  TO SUBJECT HIM TO ANY FURTHER SUCH PROCEEDINGS AT THIS STAGE
WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE: 

" THE UNDERLYING IDEA, ONE THAT IS DEEPLY INGRAINED IN AT LEAST THE
ANGLO-AMERICAN SYSTEM OF JURISPRUDENCE, IS THAT THE STATE WITH ALL ITS
RESOURCES AND POWER SHOULD NOT BE ALLOWED TO MAKE REPEATED ATTEMPTS TO
CONVICT AN INDIVIDUAL FOR AN ALLEGED OFFENSE, THEREBY SUBJECTING HIM TO
EMBARRASSMENT, EXPENSE AND ORDEAL AND COMPELLING HIM TO LIVE IN A
CONTINUING STATE OF ANXIETY AND INSECURITY . . . ."  GREEN V. UNITED
STATES, SUPRA, AT 187. 

      AFFIRMED. 

/1/ TITLE 18 U.S.C. 3731 PROVIDES, IN RELEVANT PART: 

" IN A CRIMINAL CASE AN APPEAL BY THE UNITED STATES SHALL LIE TO A
COURT OF APPEALS FROM A DECISION, JUDGMENT, OR ORDER OF A DISTRICT
COURT DISMISSING AN INDICTMENT OR INFORMATION AS TO ANY ONE OR MORE
COUNTS, EXCEPT THAT NO APPEAL SHALL LIE WHERE THE DOUBLE JEOPARDY
CLAUSE OF THE UNITED STATES CONSTITUTION PROHIBITS FURTHER
PROSECUTION. 

" THE APPEAL IN ALL SUCH CASES SHALL BE TAKEN WITHIN THIRTY DAYS
AFTER THE DECISION, JUDGMENT OR ORDER HAS BEEN RENDERED AND SHALL BE
DILIGENTLY PROSECUTED. 

" THE PROVISIONS OF THIS SECTION SHALL BE LIBERALLY CONSTRUED TO
EFFECTUATE ITS PURPOSES." 

/2/ 32 CFR 1625.2 (1965): 

" THE LOCAL BOARD MAY REOPEN AND CONSIDER ANEW THE CLASSIFICATION OF
A REGISTRANT (A) UPON THE WRITTEN REQUEST OF THE REGISTRANT, THE
GOVERNMENT APPEAL AGENT, ANY PERSON WHO CLAIMS TO BE A DEPENDENT OF THE
REGISTRANT, OR ANY PERSON WHO HAS ON FILE A WRITTEN REQUEST FOR THE
CURRENT DEFERMENT OF THE REGISTRANT IN A CASE INVOLVING OCCUPATIONAL
DEFERMENT, IF SUCH REQUEST IS ACCOMPANIED BY WRITTEN INFORMATION
PRESENTING FACTS NOT CONSIDERED WHEN THE REGISTRANT WAS CLASSIFIED,
WHICH, IF TRUE, WOULD JUSTIFY A CHANGE IN THE REGISTRANT'S
CLASSIFICATION; OR (B) UPON ITS OWN MOTION IF SUCH ACTION IS BASED UPON
FACTS NOT CONSIDERED WHEN THE REGISTRANT WAS CLASSIFIED WHICH, IF TRUE,
WOULD JUSTIFY A CHANGE IN THE REGISTRANT'S CLASSIFICATION; PROVIDED, IN
EITHER EVENT, THE CLASSIFICATION OF A REGISTRANT SHALL NOT BE REOPENED
AFTER THE LOCAL BOARD HAS MAILED TO SUCH REGISTRANT AN ORDER TO REPORT
FOR INDUCTION ( S SS FORM NO. 252) OR AN ORDER TO REPORT FOR CIVILIAN
WORK AND STATEMENT OF EMPLOYER (SSS FORM NO. 153) UNLESS THE LOCAL
BOARD FIRST SPECIFICALLY FINDS THERE HAS BEEN A CHANGE IN THE
REGISTRANT'S STATUS RESULTING FROM CIRCUMSTANCES OVER WHICH THE
REGISTRANT HAD NO CONTROL."  THE REGULATION HAD BEEN IN EFFECT SINCE
1955, 20 FED. REG. 737, AND WAS NOT AMENDED BETWEEN THE TIME GEAREY WAS
DECIDED AND THE EVENTS LEADING UP TO RESPONDENT'S INDICTMENT.  THE
REGULATION WAS AMENDED IN 1973, 38 FED. REG. 731. 

/3/ THE DISTRICT COURT MAY HAVE BELIEVED THAT RESPONDENT COULD NOT
BE CONVICTED FOR KNOWINGLY REFUSING TO REPORT FOR INDUCTION IF
RESPONDENT HAD ACTED IN THE BELIEF THAT THE BOARD'S ORDER WAS ILLEGAL
UNDER GEAREY.  THERE WAS NO DIRECT EVIDENCE THAT RESPONDENT RELIED UPON
GEAREY IN REFUSING TO REPORT FOR INDUCTION.  RESPONDENT CALLED AS A
WITNESS A LOCAL DRAFT COUNSELOR WHOM HE HAD CONTACTED UPON RECEIVING
HIS NOTICE TO REPORT FOR INDUCTION.  THE COUNSELOR WOULD HAVE TESTIFIED
AS TO RESPONDENT'S SINCERITY AND APPARENTLY WOULD HAVE TOUCHED UPON THE
GEAREY ISSUE.  APP. 70 - 73.  THE COURT RULED THAT THE COUNSELOR'S
TESTIMONY WAS INADMISSIBLE.  AT THAT TIME, THE COURT REGARDED THE
EFFECT OF GEAREY AS "STRICTLY A QUESTION OF LAW," ID., AT 73, BUT THE
JUDGE APPARENTLY CHANGED HIS MIND AFTER FURTHER DELIBERATION, AS WAS
HIS PREROGATIVE: 

" TRIALS WILL NEVER BE CONCLUDED IF JUDGMENTS RENDERED AFTER FULL
CONSIDERATION ARE TO BE REVERSED BECAUSE OF REMARKS MADE AND TENTATIVE
THEORIES ADVANCED BY A JUDGE IN THE COURSE OF THE TRIAL."  UNITED
STATES V. WAIN, 162 F. 2D 60, 65 (CA2), CERT. DENIED, 332 U.S. 764
(1947). 

/4/ THE NOTICE OF APPEAL WAS FILED WITHIN THE REQUISITE 30 DAYS, BUT
THE GOVERNMENT DID NOT FILE ITS BRIEF UNTIL SEVEN MONTHS LATER.  THE
COURT OF APPEALS INDICATED THAT IT WOULD HAVE DISMISSED THE APPEAL FOR
FAILURE TO PROSECUTE DILIGENTLY, 18 U S. C. 3731, HAD RESPONDENT SO
REQUESTED.  490 F.2D 868, 869 N.2.  RESPONDENT HAS SIMILARLY MADE NO
SUCH ARGUMENT IN THIS COURT. 

/5/ BY THE TIME THE GOVERNMENT FILED ITS BRIEF, THE COURT OF APPEALS
HAD HELD THAT EHLERT COULD BE APPLIED TO A REGISTRANT WHOSE REFUSAL TO
REPORT FOR INDUCTION OCCURRED WHILE GEAREY STILL REPRESENTED THE LAW OF
THE CIRCUIT.  UNITED STATES V. MERCADO, 478 F.2D 1108 (1973).  THE
COURT OBSERVED, HOWEVER:  " WE RECOGNIZE SUCH A RULE MIGHT BE HARSH AS
APPLIED TO A REGISTRANT WHO IN FACT REASONABLY RELIED IN GOOD FAITH ON
THE CASE LAW OR UPON THE KNOWLEDGE THAT LOCAL BOARDS IN THIS CIRCUIT
WOULD CONSIDER A BELATED CONSCIENTIOUS OBJECTION CLAIM, AND PERHAPS
THERE IS ROOM FOR FLEXIBILITY IN ENFORCEMENT OF THIS RULE TO AVOID
INJUSTICE IN A PARTICULAR CASE . . . ."  ID., AT 1111. 

/6/ SEE H.R. CONF. REP. NO. 91 - 1768, P. 21 (1970).  CF. S. REP.
NO. 91 - 1296 (1970). 

/7/ JUDGE LUMBARD ANALOGIZED RESPONDENT'S CASE TO MISTRIAL CASES IN
WHICH THE "'PUBLIC'S INTEREST IN FAIR TRIALS DESIGNED TO END IN JUST
JUDGMENTS'" MAY BE WEIGHED.  ILLINOIS V. SOMERVILLE, 410 U.S. 458, 470
(1973).  THAT INTEREST, HE FELT, WOULD NOT BE SERVED BY PERMITTING A
CLEARLY GUILTY DEFENDANT TO GO FREE BECAUSE OF AN ERRONEOUS
INTERPRETATION OF THE CONTROLLING LAW.  490 F.2D, AT 884.  WE DISAGREE
WITH THIS ANALYSIS BECAUSE WE THINK IT IS OF CRITICAL IMPORTANCE
WHETHER THE PROCEEEDINGS IN THE TRIAL COURT TERMINATE IN A MISTRIAL AS
THEY DID IN THE SOMERVILLE LINE OF CASES, OR IN THE DEFENDANT'S FAVOR,
AS THEY DID HERE. 

/8/ SEE, E.G., UNITED STATES V. BALL, 163 U.S. 662 (1896); GREEN V.
UNITED STATES, 355 U.S. 184 (1957); FONG FOO V. UNITED STATES, 369 U.S.
141 (1962).  CF. KEPNER V. UNITED STATES, 195 U.S. 100 (1904). 

/9/ 1974 ANNUAL REPORT OF THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS IX-97, TRIALS COMPLETED IN THE UNITED STATES
DISTRICT COURTS DURING THE FISCAL YEARS 1962 THROUGH 1974: 

10 TABLE OMITTED 

/10/ FED. RULE CRIM. PROC. 23(C): 

" TRIAL WITHOUT A JURY 

" IN A CASE TRIED WITHOUT A JURY THE COURT SHALL MAKE A GENERAL
FINDING AND SHALL IN ADDITION ON REQUEST FIND THE FACTS SPECIALLY.  IF
AN OPINION OR MEMORANDUM OR DECISION IS FILED, IT WILL BE SUFFICIENT IF
THE FINDINGS OF FACT APPEAR THEREIN." 

/11/ SEE, E.G., SULLIVAN V. UNITED STATES, 348 U.S. 170, 174
(1954). 

/12/ BRIEF FOR UNITED STATES 10 N. 5, 24 N. 16.  THE GOVERNMENT WAS
OF THE VIEW THAT IT DID NOT HAVE TO MAKE THIS BROADER ARGUMENT IN THE
CONTEXT OF THIS CASE BUT MERELY SOUGHT TO PRESERVE IT.  IN LIGHT OF OUR
DISPOSITION OF ITS PRINCIPAL ARGUMENT, WE PROCEED TO THIS ALTERNATIVE
GROUND. 

/13/ THE PREMISE APPARENTLY UNDERLYING THIS POSITION IS THAT THE
FACTFINDER HAS NOT BEEN DISCHARGED IN A BENCH TRIAL; UNLIKE A JURY
TRIAL, WHERE THE DISCHARGE OF THE JURY UPON RETURNING A VERDICT OF
ACQUITTAL TERMINATES A DEFENDANT'S JEOPARDY, GREEN V. UNITED STATES,
355 U.S., AT 191, THE JUDGE THEORETICALLY REMAINS AVAILABLE TO
RECONVENE THE CASE, TAKE UP WHERE HE LEFT OFF, AND RESUME HIS DUTIES AS
FACTFINDER.  PRELIMINARILY, IT MAY BE OBSERVED THAT THE AVAILABILITY OF
THE JUDGE IS BY NO MEANS ASSURED, AS THIS CASE ILLUSTRATES:  THE
DISTRICT JUDGE HAS REPORTEDLY RESIGNED.  43 U.S.L.S. 2268 (1974). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE GRENNAN JOINS, CONCURRING
IN THE JUDGMENT. 

I WOULD HOLD THAT THE DOUBLE JEOPARDY CLAUSE BARS THE GOVERNMENT'S
APPEAL FROM THE RULING OF THIS TRIAL COURT IN RESPONDENT'S FAVOR.  SEE
FONG FOO V. UNITED STATES, 369 U.S. 141.  ACCORDINGLY, I CONCUR IN THE
AFFIRMANCE OF THE JUDGMENT BELOW. 

DEPUTY SOLICITOR GENERAL FREY ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL PETERSEN, LOUIS F. CLAIBORNE, AND EDWARD R. KORMAN. 

JAMES S. CARROLL ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

..END :























UNITED STATES V. N.J. STATE LOTTERY COMM'N, 420 U.S. 371 


       UNITED STATES EL AL. V. NEW JERSEY STATE LOTTERY COMMISSION

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 73 - 1471.  ARGUED NOVEMBER 20, 1974--, DECIDED
FEBRUARY

       25, 1975; 491 F.2D 219, VACATED AND REMANDED. 


    A LICENSED NEW JERSEY RADIO STATION SOUGHT, BUT WAS DENIED,

  DECLARATORY RELIEF FROM THE FEDERAL COMMUNICATIONS COMMISSION

  AGAINST THE APPLICATION OF 18 U.S.C. 1304 TO THE BROADCAST OF

  WINNING NUMBERS IN A LAWFUL STATE-RUN LOTTERY SUCH AS NEW JERSEY

  HAS.  SUBSEQUENT TO THE COURT OF APPEAL'S REVERSAL OF THE FPC'S

  DENIAL OF RELIEF, CONGRESS ENACTED 18 U.S.C. 1307 (A)(2) MAKING

  1304 INAPPLICABLE TO INFORMATION CONCERNING A STATE-AUTHORIZED

  LOTTERY BROADCAST IN THAT STATE OR AN ADJACENT STATE HAVING SUCH

A LOTTERY.  HELD:  IN VIEW OF THE ENACTMENT OF 1307 THE CASE IS

  REMANDED TO THE COURT OF APPEALS SO THAT IT MAY CONSIDER WHETHER

  THE CASE IS MOOT AS THE GOVERNMENT CONTENDS, OR IS NOT MOOT

  BECAUSE, AS INTERVENOR STATE OF NEW HAMPSHIRE CONTENDS, 1307 IN

  VIOLATION OF FIRST AMENDMENT RIGHTS WOULD STILL NOT ALLOW

  BROADCASTERS IN VERMONT, WHICH HAS NO LOTTERY, TO BROADCAST

  WINNING NUMBERS IN THE NEW HAMPSHIRE LOTTERY. 

PER CURIAM. 

THIS CASE INVOLVES A QUESTION REGARDING THE APPLICABILITY OF 18
U.S.C. 1304, WHICH PROVIDES: 

     " WHOEVER BROADCASTS BY MEANS OF ANY RADIO STATION FOR WHICH A

  LICENSE IS REQUIRED BY ANY LAW OF THE UNITED STATES, OR WHOEVER,

  OPERATING ANY SUCH STATION, KNOWINGLY PERMITS THE BROADCASTING

  OF, ANY ADVERTISEMENT OF OR INFORMATION CONCERNING ANY LOTTERY,

  GIFT ENTERPRISE, OR SIMILAR SCHEME, OFFERING PRIZES DEPENDENT IN

  WHOLE OR IN PART UPON LOT OR CHANCE, OR ANY LIST OF THE PRIZES

  DRAWN OR AWARDED BY MEANS OF ANY SUCH LOTTERY, GIFT ENTERPRISE,

  OR SCHEME, WHETHER SAID LIST CONTAINS ANY PART OR ALL OF SUCH

  PRIZES, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT

MORE THAN ONE YEAR, OR BOTH." 

JERSEY CAPE, A LICENSED RADIO STATION IN NEW JERSEY, SUED FOR
DECLARATORY RELIEF BEFORE THE FEDERAL COMMUNICATIONS COMMISSION ARGUING
THAT 1304 SHOULD NOT APPLY TO THE BROADCAST OF THE WINNING NUMBER IN A
LAWFUL STATE-RUN LOTTERY SUCH AS THE ONE CONDUCTED BY THE STATE OF NEW
JERSEY.  SEE N.J. STAT. ANN. 5:9 - 1 ET SEQ. (1973).  THE COMMISSION
DENIED RELIEF.  30 F.C.C.  2D 794 (1971).  UPON A PETITION FOR
REHEARING, THE NEW JERSEY LOTTERY COMMISSION WAS ALLOWED TO INTERVENE
AND THE COMMISSION REAFFIRMED ITS DENIAL.  36 F.C.C. 2D 93 (1972).  THE
LOTTERY COMMISSION PETITIONED FOR REVIEW IN THE COURT OF APPEALS FOR
THE THIRD CIRCUIT, 491 F.2D 219 (1974), AND THE STATES OF NEW HAMPSHIRE
AND PENNSYLVANIA WERE GRANTED PERMISSION TO INTERVENE AS PETITIONERS,
ID., AT 221 N. 2.  SITTING EN BANC, THE THIRD CIRCUIT UNANIMOUSLY
REVERSED THE FCC.  WE GRANTED CERTIORARI TO RESOLVE AN APPARENT
CONFLICT BETWEEN THAT DECISION AND THE DECISION BY THE COURT OF APPEALS
FOR THE SECOND CIRCUIT IN NEW YORK STATE BROADCASTERS ASSN. V. UNITED
STATES, 414 F.2D 990 (1969). 

SUBSEQUENT TO THE BRIEFING AND ORAL ARGUMENT OF THE CASE IN THIS
COURT, CONGRESS PASSED AND THE PRESIDENT SIGNED PUB. L. 93 - 583, 88
STAT. 1916, CODIFIED AT 18 U.S.C.A. 1307 (SUPP. FEB. 1975), WHICH, IN
RELEVANT PART, PROVIDES: 

     "(A) THE PROVISIONS OF SECTION . . . 1304 SHALL NOT APPLY TO
AN

  ADVERTISEMENT, LIST OF PRIZES, OR INFORMATION CONCERNING A

  LOTTERY CONDUCTED BY A STATE ACTING UNDER THE AUTHORITY OF STATE

  LAW--,

        .  .  .  .  . 

     (2) BROADCAST BY A RADIO OR TELEVISION STATION LICENSED TO A

  LOCATION IN THAT STATE OR AN ADJACENT STATE WHICH CONDUCTS SUCH A

  LOTTERY." 

THE UNITED STATES NOW URGES US TO DISMISS THIS CASE AS MOOT.  IT
POINTS OUT THAT THE ONLY RELIEF REQUESTED WAS BY A BROADCASTER LOCATED
IN NEW JERSEY, A STATE THAT CONDUCTS AN AUTHORIZED LOTTERY, AND
THEREFORE THE TYPE OF BROADCAST AT ISSUE IS NOW ALLOWED BY STATUTE. 
INTERVENOR, THE STATE OF NEW HAMPSHIRE DISPUTES THE SUGGESTION OF
MOOTNESS.  NEW HAMPSHIRE ARGUES THAT THE AMENDMENT TO 1304 DOES NOT
GRANT IT FULL RELIEF.  IT IS NOTED THAT VERMONT, AN ADJACENT STATE,
DOES NOT CONDUCT A STATE-AUTHORIZED LOTTERY.  THUS, VERMONT
BROADCASTERS WILL NOT BE ALLOWED, UNDER 1304, AS MODIFIED BY 1307, TO
BROADCAST TO NEW HAMPSHIRE LISTENERS THE WINNING NUMBERS IN THE NEW
HAMPSHIRE STATE LOTTERY.  NEW HAMPSHIRE APPARENTLY BELIEVES THAT THIS
LIMITATION CONSTITUTES A DENIAL OF FIRST AMENDMENT RIGHTS.  THIS
SPECIFIC ISSUE, HOWEVER, WAS NOT BRIEFED OR ARGUED IN THIS COURT. 

IN VIEW OF THE ENACTMENT OF 1307, WE DEEM IT APPROPRIATE TO REMAND
TO THE COURT OF APPEALS SO THAT IT MAY CONSIDER WHETHER THE CASE IS NOW
MOOT.  ACCORDINGLY, THE JUDGMENT BELOW IS VACATED AND THE CASE IS
REMANDED. 

                                  IT IS SO ORDERED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WITH ALL RESPECT, I DO NOT BELIEVE THAT THIS CASE HAS BECOME MOOT--,
CERTAINLY NOT FOR THE REASONS INTIMATED BY THE COURT.  THE FIRST
AMENDMENT PROVIDES THAT CONGRESS SHALL MAKE NO LAW ABRIDGING THE
FREEDOM OF THE PRESS.  IT IS TO ME SHOCKING THAT A RADIO STATION OR A
NEWSPAPER CAN BE REGULATED BY A COURT OR BY A COMMISSION, TO THE EXTENT
OF BEING PREVENTED FROM PUBLISHING ANY ITEM OF NEWS" OF THE DAY.  SO TO
HOLD WOULD BE A PRIOR RESTRAINT OF A SIMPLE AND UNADULTERATED FORM,
BARRED BY CONSTITUTIONAL PRINCIPLES.  CAN ANYONE DOUBT THAT THE WINNER
OF A LOTTERY IS PRIME NEWS BY OUR PRESS STANDARDS? 

IN OUR HISTORY, CONGRESS HAD SHOWN AT TIMES AN APPETITE FOR
PERFORMING THE JUDICIAL FUNCTION OF FINDING PEOPLE GUILTY.  THAT IS THE
REASON WHY THE CONSTITUTION CONTAINS ART. I, 9, CL. 3, WHICH OUTLAWS
BILLS OF ATTAINDER.  SEE UNITED STATES V. BROWN, 381 U.S. 437 (1965);
UNITED STATES V. LOVETT, 328 U.S. 303 (1946).  FOR CONGRESS TO HOLD
THAT THE RADIO STATION IN THE PRESENT CASE WAS OR WAS NOT GUILTY OF
VIOLATING 18 U.S.C. 1304 WOULD BE A FLAGRANT USURPATION OF ART. III
FUNCTIONS. 

OUR DECISION SHOULD REST NOT ON WHAT CONGRESS HAS DONE BUT ON THE
MERITS OF THE CONTROVERSY, WHICH DO NOT SEEM TO ME TO BE SUBSTANTIAL. 
I WOULD NOT PRESUME THAT CONGRESS UNDERTOOK TO PASS ON THE THE MERITS
OF THE CLAIM AT ISSUE BEFORE US.  /1/ 

I WOULD NOT REMAND FOR CONSIDERATION OF THE ISSUE OF MOOTNESS.  TO
ME IT IS MANIFEST THAT THE CASE IS NOT MOOT AND THAT THE JUDGMENT BELOW
SHOULD BE AFFIRMED. 

/1/ AS THE STATE OF NEW HAMPSHIRE POINTS OUT, THE NEW 1307 EVEN ON
ITS FACT DOES NOT RESOLVE THE CLAIMS OF ALL PARTIES TO THIS ACTION. 
HEW HAMPSHIRE, WHICH WAS GRANTED LEAVE TO INTERVENE IN THE COURT OF
APPEALS, CONDUCTS A LOTTERY; NEIGHBORING VERMONT DOES NOT.  TITLE 18
U.S.C. 1307(A)(2) (SUPP. FEB. 1975), UPON WHICH THE COURT RELIES,
APPLIES ONLY TO BROADCASTS BY A STATION IN THE STATE WHICH CONDUCTS THE
LOTTERY, OR IN AN ADJACENT STATE WHICH ALSO CONDUCTS A LOTTERY;
PRESUMABLY, THEN, 1304 REMAINS APPLICABLE TO A VERMONT RADIO STATION
WHICH DESIRES TO BROADCAST INFORMATION CONCERNING THE NEW HAMPSHIRE
LOTTERY.  THE RESTRAINT IMPOSED BY 1304 WILL THUS CONTINUE TO INHIBIT
THE NEW HAMPSHIRE LOTTERY WITH RESPECT TO CERTAIN GROUPS OF PROSPECTIVE
PARTICIPANTS, INCLUDING NEW HAMPSHIRE RESIDENTS WHO LISTEN TO VERMONT
RADIO STATIONS AND VERMONT RESIDENTS WHO MIGHT WISH TO CROSS THE STATE
LINE AND PARTICIPATE. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR PETITIONERS. 
ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
KAUPER, LOUIS F. CLAIBORNE, DANNY J. BOGGS, AND JOSEPH A. MARINO. 

STEPHEN SKILLMAN, ASSISTANT ATTORNEY GENERAL OF NEW JERSEY, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS WILLIAM F. HYLAND,
ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY ROBERT K.
KILLIAN, ATTORNEY GENERAL, AND BARNEY LAPP AND DANIEL R. SCHAEFER,
ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF CONNECTICUT; BY WARREN B.
RUDMAN, ATTORNEY GENERAL, AND DAVID H. SOUTER, DEPUTY ATTORNEY GENERAL,
FOR THE STATE OF NEW HAMPSHIRE; BY LOUIS SCHWARTZ AND ROBERT A. WOODS
FOR THE MARYLAND PUBLIC BROADCASTING COMMISSION; BY WILLIAM J. BROWN,
ATTORNEY GENERAL, AND STEPHEN T. PARISI FOR THE STATE OF OHIO; BY VERNE
HODGE, ATTORNEY GENERAL, AND HENRY L. FEUERZEIG, FIRST ASSISTANT
ATTORNEY GENERAL, FOR THE GOVERNMENT OF THE VIRGIN ISLANDS; BY JOHN B.
SUMMERS FOR THE NATIONAL ASSOCIATION OF BROADCASTERS; AND BY THOMAS R.
ASHER, MELVIN L. WULF, AND JOEL M. GORA FOR THE AMERICAN CIVIL
LIBERTIES UNION. 
..END :








WILLIAMS & WILKINS CO. V. UNITED STATES, 420 U.S. 376 


       WILLIAMS & WILKINS CO V. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS

        NO. 73 - 1279.  ARGUED DECEMBER 17, 1974--, DECIDED
FEBRUARY

          25, 1975 203 CT. CL. 74, 487 F.2D 1345, AFFIRMED BY AN

           EQUALLY DIVIDED COURT. 


PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE DECISION OF THIS CASE. 

ALAN LATMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS
WERE ARTHUR J. GREENBAUM AND MARTIN F. RICHMAN. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL HILLS, HARRIET S.
SHAPIRO, AND WILLIAM G. KANTER. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY ARTHUR B.
HANSON AND WILLIAM J. BUTLER, JR., FOR THE AMERICAN CHEMICAL SOCIETY;
BY ROBERT B. WASHBURN FOR THE AMERICAN SOCIETY FOR TESTING AND
MATERIALS ET AL.; BY JOSEPH CALDERON FOR THE AMERICAN GUILD OF AUTHORS
AND COMPOSERS ET AL.; BY CHARLES H. LIEB FOR THE ASSOCIATION OF
AMERICAN PUBLISHERS, INC., ET AL.; BY IRWIN KARP FOR THE AUTHORS LEAGUE
OF AMERICA, INC.; BY PAUL G. ZURKOWSKI FOR THE INFORMATION INDUSTRY
ASSN.; BY ALFRED H. WASSERSTROM FOR THE MAGAZINE PUBLISHERS ASSN.,
INC.; AND BY THE ASSOCIATED COUNCILS OF THE ARTS. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY WILLIAM D.
NORTH, RONALD L ENGEL, AND JAMES M. AMEND FOR THE AMERICAN LIBRARY
ASSN. AND THE SPECIAL LIBRARIES ASSN.; BY PHILIP B. BROWN, STEPHEN C.
LIEBERMAN, AND JOHN P. FURMAN FOR THE ASSOCIATION OF RESEARCH LIBRARIES
ET AL.; AND BY HARRY N. ROSENFIELD FOR THE NATIONAL EDUCATION ASSN.
..END :











UNITED STATES V. BISCEGLIA, 420 U.S. 141 


       UNITED STATES ET AL. V. BISCEGLIA

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

   SIXTH CIRCUIT

        NO. 73-1245.  ARGUED NOVEMBER 11-12, 1974--DECIDED FEBRUARY

           19, 1975; 486 F.2D 706, REVERSED AND REMANDED. 


    THE INTERNAL REVENUE SERVICE (IRS) HAS AUTHORITY UNDER 7601 AND

  7602 OF THE INTERNAL REVENUE CODE OF 1954 TO ISSUE A "JOHN DOE"

  SUMMONS TO A BANK OR OTHER DEPOSITORY TO DISCOVER THE IDENTITY OF

  A PERSON WHO HAS HAD BANK TRANSACTIONS SUGGESTING THE POSSIBILITY

  OF LIABILITY FOR UNPAID TAXES, IN THIS INSTANCE A SUMMONS TO

  RESPONDENT BANK OFFICER DURING AN INVESTIGATION TO IDENTIFY THE

  PERSON OR PERSONS WHO DEPOSITED 400 DETERIORATED $100 BILLS WITH

 THE BANK WITHIN THE SPACE OF A FEW WEEKS.  PP. 148 - 151. 

     (A) THAT THE SUMMONS WAS STYLED IN A FICTITIOUS NAME IS NOT A

  SUFFICIENT GROUND FOR DENYING ENFORCEMENT.  PP. 148 - 149. 

     (B) THE LANGUAGE OF 7601 PERMITTING THE IRS TO INVESTIGATE AND

  INQUIRE AFTER "ALL PERSONS . . . WHO MAY BE LIABLE TO PAY ANY

  INTERNAL REVENUE TAX . . ."  AND OF 7602 AUTHORIZING THE
SUMMONING

  OF "ANY PERSON" FOR THE TAKING OF TESTIMONY AND EXAMINATION OF

  BOOKS AND WITNESSES THAT MAY BE RELEVANT FOR "ASCERTAINING THE

  CORRECTNESS OF ANY RETURN, . . . DETERMINING THE LIABILITY OF ANY

  PERSON . . . OR COLLEGECTING ANY SUCH LIABILITY . . .," IS

  INCONSISTENT WITH AN INTERPRETATION THAT WOULD LIMIT THE ISSUANCE

  OF SUMMONSES TO INVESTIGATIONS WHICH HAVE ALREADY FOCUSED UPON A

  PARTICULAR RETURN OR PARTICULAR NAMED PERSON, OR A PARTICULAR

  POTENTIAL TAX LIABILITY, AND MOREOVER SUCH A READING OF THE

  SUMMONS POWER OF THE IRS IGNORES THE AGENCY'S LEGITIMATE INTEREST

  IN LARGE OR UNUSUAL FINANCIAL TRANSACTIONS, ESPECIALLY THOSE

  INVOLVING CASH.  PP. 149 - 150. 

     BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, AND REHNQUIST, JJ.,

  JOINED.  BLACKMUN, J., FILED A CONCURRING OPINION, IN WHITE

  POWELL, J., JOINED, POST, P. 151.  STEWART, J., FILED A

  DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P. 152. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO RESOLVE THE QUESTION WHETHER THE INTERNAL
REVENUE SERVICE HAS STATUTORY AUTHORITY TO ISSUE A "JOHN DOE" SUMMONS
TO A BANK OR OTHER DEPOSITORY TO DISCOVER THE IDENTITY OF A PERSON WHO
HAS HAD BANK TRANSACTIONS SUGGESTING THE POSSIBILITY OF LIABILITY FOR
UNPAID TAXES. 

        I 

ON NOVEMBER 6 AND 16, 1970, THE COMMERCIAL BANK OF MIDDLESBORO,
KENTUCKY, MADE TWO SEPARATE DEPOSITS WITH THE CINCINNATI BRANCH OF THE
FEDERAL RESERVE BANK OF CLEVELAND, EACH OF WHICH INCLUDED $20,000 IN
$100 BILLS.  THE EVIDENCE IS UNDISPUTED THAT THE $100 BILLS WERE "PAPER
THIN" AND SHOWED SIGNS OF SEVERE DISINTEGRATION WHICH COULD HAVE BEEN
CAUSED BY A LONG PERIOD OF STORAGE UNDER ABNORMAL CONDITIONS.  AS A
RESULT THE BILLS WERE NO LONGER SUITABLE FOR CIRCULATION AND THEY WERE
DESTROYED BY THE FEDERAL RESERVE IN ACCORD WITH ESTABLISHED
PROCEDURES.  ALSO IN ACCORD WITH REGULAR FEDERAL RESERVE PROCEDURES,
THE CINCINNATI BRANCH REPORTED THESE FACTS TO THE INTERNAL REVENUE
SERVICE. 

IT IS NOT DISPUTED THAT A DEPOSIT OF SUCH A LARGE AMOUNT OF HIGH
DENOMINATION CURRENCY WAS OUT OF THE ORDINARY FOR THE COMMERCIAL BANK
OF MIDDLESBORO; FOR EXAMPLE, IN THE 11 MONTHS PRECEDING THE TWO $20,000
DEPOSITS IN $100 BILLS, THE FEDERAL RESERVE HAD RECEIVED ONLY 218 $100
BILLS FROM THAT BANK.  THIS FACT, TOGETHER WITH UNIFORMLY UNUSUAL STATE
OF DETERIORATION OF THE $40,000 IN $100 BILLS, CAUSED THE INTERNAL
REVENUE SERVICE TO SUSPECT THAT THE TRANSACTIONS RELATING TO THOSE
DEPOSITS MAY NOT HAVE BEEN REPORTED FOR TAX PURPOSES.  AN AGENT WAS
THEREFORE ASSIGNED TO INVESTIGATE THE MATTER. 

AFTER INTERVIEWING SOME OF THE BANK'S EMPLOYEES, NONE OF WHOM COULD
PROVIDE HIM WITH INFORMATION REGARDING THE TWO $20,000 DEPOSITS, THE
AGENT ISSUED A "JOHN DOE" SUMMONS DIRECTED TO RESPONDENT, AN EXECUTIVE
VICE PRESIDENT OF THE COMMERCIAL BANK OF MIDDLESBORO.  THE SUMMONS
CALLED FOR PRODUCTION OF "(THOSE BOOKS AND RECORDS WHICH WILL PROVIDE
INFORMATION AS TO THE PERSONS) OR FIRMS) WHICH DEPOSITED, REDEEMED OR
OTHERWISE GAVE TO THE COMMERCIAL BANK $100 BILLS U.S. CURRENCY WHICH
THE COMMERCIAL BANK SENT IN TWO SHIPMENTS OF (200) TWO HUNDRED EACH
$100 BILLS TO THE CINCINNATI BRANCH OF THE FEDERAL RESERVE BANK ON OR
ABOUT NOVEMBER 6, 1970 AND NOVEMBER 16, 1970."  THIS, OF COURSE, WAS
SIMPLY THE INITIAL STEP IN AN INVESTIGATION WHICH MIGHT LEAD TO NOTHING
OR MIGHT HAVE REVEALED THAT THERE HAD BEEN A FAILURE TO REPORT MONEY ON
WHICH FEDERAL ESTATE, GIFT, OR INCOME TAXES WERE DUE.  /1/ RESPONDENT,
HOWEVER, REFUSED TO COMPLY WITH THE SUMMONS EVEN THOUGH HE HAS NOT
SERIOUSLY ARGUED THAT COMPLIANCE WOULD BE UNDULY BURDENSOME. 

IN DUE COURSE, PROCEEDINGS WERE COMMENCED IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY TO ENFORCE THE
SUMMONS.  THAT COURT NARROWED ITS SCOPE TO REQUIRE PRODUCTION ONLY OF
DEPOSITS SLIPS SHOWING CASH DEPOSITS IN THE AMOUNT OF $20,000 AND
DEPOSIT SLIPS SHOWING CASH DEPOSITS OF $5,00 OR MORE WHICH INVOLVED
$100 BILLS, AND RESTRICTED IT TO THE PERIOD BETWEEN OCTOBER 16, 1970,
AND NOVEMBER 16, 1970.  RESPONDENT WAS ORDERED TO COMPLY WITH THE
SUMMONS AS MODIFIED. 

THE COURT OF APPEALS REVERSED, HOLDING THAT 7602 OF THE INTERNAL
REVENUE CODE OF 1954, 26 U.S.C. 7602, PURSUANT TO WHICH THE SUMMONS HAD
BEEN ISSUED, "PRESUPPOSES THAT THE (INTERNAL REVENUE SERVICE) HAS
ALREADY IDENTIFIED THE PERSON IN WHOM IT IS INTERESTED AS A TAXPAYER
BEFORE PROCEEDING."  486 F.2D 706, 710.  WE DISAGREE, AND REVERSE THE
JUDGMENT OF THE COURT OF APPEALS. 

        II 

THE STATUTORY FRAMEWORK FOR THIS CASE CONSISTS OF 7601 AND 7602 OF
THE INTERNAL REVENUE CODE OF 1954, WHICH PROVIDE: 

     "SECTION 7601.  CANVASS OF DISTRICTS FOR TAXABLE PERSONS AND
OBJECTS. 

     "(A) GENERAL RULE. 

    "THE SECRETARY OF HIS DELEGATE SHALL, TO THE EXTENT HE DEEMS IT

  PRACTICABLE, CAUSE OFFICERS OR EMPLOYEES OF THE TREASURY

  DEPARTMENT TO PROCEED, FROM TIME TO TIME, THROUGH EACH INTERNAL

  REVENUE DISTRICT AND INQUIRE AFTER AND CONCERNING ALL PERSONS

  THEREIN WHO MAY BE LIABLE TO PAY ANY INTERNAL REVENUE TAX, AND

  ALL PERSONS OWNING OR HAVING THE CARE AND MANAGEMENT OF ANY

  OBJECTS WITH RESPECT TO WHICH ANY TAX IS IMPOSED. 

     "SECTION 7602.  EXAMINATION OF BOOKS AND WITNESSES. 

     "FOR THE PURPOSE OF ASCERTAINING THE CORRECTNESS OF ANY
RETURN,

  MAKING A RETURN WHERE NONE HAS BEEN MADE, DETERMINING THE

  LIABILITY OF ANY PERSON FOR ANY INTERNAL REVENUE TAX . . . OR

  COLLECTING ANY SUCH LIABILITY, THE SECRETARY OR HIS DELEGATE IS

AUTHORIZED-- 

     (1) TO EXAMINE ANY BOOKS, PAPERS, RECORDS, OR OTHER DATA WHICH

  MAY BE RELEVANT OR MATERIAL TO SUCH INQUIRY; 

     "(2) TO SUMMON THE PERSON LIABLE FOR TAX OR REQUIRED TO
PERFORM

  THE ACT, OR ANY OFFICER OR EMPLOYEE OF SUCH PERSON, OR ANY PERSON

  HAVING POSSESSION, CUSTODY, OR CARE OF BOOKS OF ACCOUNT

  CONTAINING ENTRIES RELATING TO THE BUSINESS OF THE PERSON LIABLE

  FOR TAX OR REQUIRED TO PERFORM THE ACT, OR ANY OTHER PERSON THE

  SECRETARY OR HIS DELEGATE MAY DEEM PROPER, TO APPEAR BEFORE THE

  SECRETARY OR HIS DELEGATE AT A TIME AND PLACE NAMED IN THE

  SUMMONS AND TO PRODUCE SUCH BOOKS, PAPERS, RECORDS, OR OTHER

  DATA, AND TO GIVE SUCH TESTIMONY, UNDER OATH, AS MAY BE RELEVANT

  OR MATERIAL TO SUCH INQUIRY; AND 

"(3) TO TAKE SUCH TESTIMONY OF THE PERSON CONCERN, UNDER OATH,

  AS MAY BE RELEVANT OR MATERIAL TO SUCH INQUIRY." 

WE BEGIN EXAMINATION OF THESE SECTIONS AGAINST THE FAMILIAR
BACKGROUND THAT OUR TAX STRUCTURE IS BASED ON A SYSTEM OF SELF
REPORTING.  THERE IS LEGAL COMPULSION, TO BE SURE, BUT BASICALLY THE
GOVERNMENT DEPENDS UPON THE GOOD FAITH AND INTEGRITY OF EACH POTENTIAL
TAXPAYER TO DISCLOSE HONESTLY ALL INFORMATION RELEVANT TO TAX
LIABILITY.  NONETHELESS, IT WOULD BE NAIVE TO IGNORE THE REALITY THAT
SOME PERSONS ATTEMPT TO OUTWIT THE SYSTEM, AND TAX EVADERS ARE NOT
READILY IDENTIFIABLE.  THUS, 7601 GIVES THE INTERNAL REVENUE SERVICE A
BROAD MANDATE TO INVESTIGATE AND AUDIT "PERSONS WHO MAY BE LIABLE" FOR
TAXES AND 7602 PROVIDES THE POWER TO "EXAMINE ANY BOOKS, PAPERS,
RECORDS, OR OTHER DATA WHICH MAY BE RELEVANT . . . (AND TO SUMMON) ANY
PERSON HAVING POSSESSION . . . OF BOOKS OF ACCOUNT . . . RELEVANT OR
MATERIAL TO SUCH INQUIRY."  OF NECESSITY, THE INVESTIGATIVE AUTHORITY
SO PROVIDED IS NOT LIMITED TO SITUATIONS IN WHICH THERE IS PROBABLE
CAUSE, IN THE TRADITIONAL SENSE, TO BELIEVE THAT A VIOLATION OF THE TAX
LAWS EXISTS.  UNITED STATES V. POWELL, 379 U.S. 48 (1964).  THE PURPOSE
OF THE STATUTES IS NOT TO ACCUSE, BUT TO INQUIRE.  ALTHOUGH SUCH
INVESTIGATIONS INVESTIGATIONS UNQUESTIONABLY INVOLVE SOME INVASION OF
PRIVACY, THEY ARE ESSENTIAL TO OUR SELF-REPORTING SYSTEM, AND THE
ALTERNATIVES COULD WELL INVOLVE FAR LESS AGREEABLE INVASIONS OF HOUSE,
BUSINESS, AND RECORDS. 

WE RECOGNIZE THAT THE AUTHORITY VESTED IN TAX COLLECTORS MAY BE
ABUSED, AS ALL POWER IS SUBJECT TO ABUSE.  HOWEVER, THE SOLUTION IS NOT
TO RESTRICT THAT AUTHORITY SO AS TO UNDERMINE THE EFFICACY OF THE
FEDERAL TAX SYSTEM, WHICH SEEKS TO ASSURE THAT TAXPAYERS PAY WHAT
CONGRESS HAS MANDATED AND PREVENTS DISHONEST PERSONS FROM ESCAPING
TAXATION AND THUS SHIFTING HEAVIER BURDENS TO HONEST TAXPAYERS. 
SUBSTANTIAL PROTECTION IS AFFORDED BY THE PROVISION THAT AN INTERNAL
REVENUE SERVICE SUMMONS CAN BE ENFORCED ONLY BY THE COURTS.  26 U.S.C.
7604(B); REISMAN V. CAPLIN, 375 U.S. 440 (1964).  ONCE A SUMMONS IS
CHALLENGED IT MUST BE SCRUTINIZED BY A COURT TO DETERMINE WHETHER IT
SEEKS INFORMATION RELEVANT TO A LEGITIMATE INVESTIGATIVE PURPOSE AND IS
NOT MEANT "TO HARASS THE TAXPAYER OR TO PUT PRESSURE ON HIM TO SETTLE A
COLLATERLA DISPUTE, OR FOR ANY OTHER PURPOSE RELFECTING ON THE GOOD
FAITH OF THE PARTICULAR INVESTIGATION."  UNITED STATES V. POWELL,
SUPRA, AT 58.  THE CASES SHOW THAT THE FEDERAL COURTS HAVE TAKEN
SERIOUSLY THEIR OBLIGATION TO APPLY THIS STANDARD TO FIT PARTICULAR
SITUATIONS, EITHER BY REFUSING ENFORCEMENT OR NARROWING THE SCOPE OF
THE SUMMONS.  SEE, E.G., UNITED STATES V. MATRAS, 487 F.2D 1271 (CA8
1973); UNITED STATES V. THEODORE, 479 F.2D 749, 755 (CA4 1973); UNITED
STATES V. PRITCHARD, 438 F.2D 969 (CA5 1971); UNITED STATES V. DAUPHIN
DEPOSIT TRUST CO., 385 F.2D 129 (CA3 1967).  INDEED, THE DISTRICT JUDGE
IN THIS CASE VIEWED THE DEMANDS OF THE SUMMONS AS TOO BROAD AND
CAREFULLY NARROWED THEM. 

FINALLY, WE NOTE THAT THE POWER TO SUMMON AND INQUIRE IN CASES SUCH
AS THE INSTANT ONE IS NOT UNPRECEDENTED.  FOR EXAMPLE, HAD RESPONDENT
BEEN BROUGHT BEFORE A GRAND JURY UNDER IDENTICAL CIRCUMSTANCES THERE
CAN BE LITTLE DOUBT THAT HE WOULD HAVE BEEN REQUIRED TO TESTIFY AND
PRODUCE RECORDS OR BE HELD IN CONTEMPT.  IN BLAIR V. UNITED STATES, 250
U.S. 273 (1919), PETITIONERS WERE SUMMONED TO APPEAR BEFORE A GRAND
JURY.  THEY REFUSED TO TESTIFY ON THE GROUND THAT THE INVESTIGATION
EXCEEDED THE AUTHORITY OF THE COURT AND GRAND JURY, DESPITE THE FACT
THAT IT WAS NOT DIRECTED AT THEM.  THEIR SUBSEQUENT CONTEMPT
CONVICTIONS WERE AFFIRMED BY THIS COURT: 

"(THE WITNESS) IS NOT ENTITLED TO SET LIMITS TO THE

  INVESTIGATION THAT THE GRANT JURY MAY CONDUCT . . . . IT IS A

GRAND INQUEST, A BODY WITH POWERS OF INVESTIGATION AND

INQUISITION, THE SCOPE OF WHOSE INQUIRIES IS NOT TO BE LIMITED

  NARROWLY BY QUESTIONS OF PROPRIETY OR FORECASTS OF THE PROBABLE

  RESULT OF THE INVESTIGATION, OR BY DOUBTS WHETHER ANY PARTICULAR

  INDIVIDUAL WILL BE FOUND PROPERLY SUBJECT TO AN ACCUSATION OF

  CRIME.  AS HAS BEEN SAID BEFORE, THE IDENTITY OF THE OFFENDER,

  AND THE PRECISE NATURE OF THE OFFENSE, IF THERE BE ONE, NORMALLY

  ARE DEVELOPED AT THE CONCLUSION OF THE GRAND JURY'S LABORS, NOT

  AT THE BEGINNING."  ID., AT 282. 

THE HOLDING OF BLAIR IS NOT INSIGNIFICANT FOR OUR RESOLUTION OF THIS
CASE.  IN UNITED STATES V. POWELL, SUPRA, MR. JUSTICE HARLAN REVIEWED
THIS COURT'S CASES DEALING WITH THE SUBPOENA POWER OF FEDERAL
ENFORCEMENT AGENCIES, AND OBSERVED: 

"(THE FEDERAL TRADE COMMISSION . . . 'HAS A POWER OF INQUISITION, IF
ONE CHOOSES TO CALL IT THAT, WHICH IS NOT DERIVED FROM THE JUDICIAL
FUNCTION.  IT IS MORE ANALOGOUS TO THE GRAND JURY, WHICH DOES NOT
DEPEND ON A CASE OR CONTROVERSY FOR POWER TO GET EVIDENCE BUT CAN
INVESTIGATE MERELY ON SUSPICION THAT THE LAW IS BEING VIOLATED, OR EVEN
JUST BECAUSE IT WANTS ASSURANCE THAT IT IS NOT.'  WHILE THE POWER OF
THE COMMISSIONER OF INTERNAL REVENUE DERIVES FROM A DIFFERENT BODY OF
STATUTES, WE DO NOT THINK THE ANALOGIES TO OTHER AGENCY SITUATIONS ARE
WITHOUT FORCE WHEN THE SCOPE OF THE COMMISSIONER'S POWER IS CALLED IN
QUESTION."  379 U.S.,AT 57, QUOTING UNITED STATES V. MORTON SALT CO.,
338 U.S. 632, 642 - 643 (1950). 

III 

AGAINST THIS BACKGROUND, WE TURN TO THE QUESTION WHETHER THE SUMMONS
ISSUED TO RESPONDENT, AS MODIFIED BY THE DISTRICT COURT, WAS
AUTHORIZIED BY THE INTERNAL REVENUE CODE OF 1954.  /2/ OF COURSE, THE
MERE FACT THAT THE SUMMONS WAS STYLED "IN THE MATTER OF THE TAX
LIABILITY OF JOHN DOE" IS NOT SUFFICIENT GROUND FOR DENYING
ENFORCEMENT.  THE USE OF SUCH FICTITIOUS NAMES IS COMMON IN
INDICTMENTS, SEE, E.G., BAKER V. UNITED STATES, 115 F.2D 533 (CA8
1940), CERT. DENIED, 312 U.S. 692 (1941), AND OTHER TYPES OF COMPULSORY
PROCESS.  INDEED, THE COURTS OF APPEALS HAVE REGULARLY ENFORCED
INTERNAL REVENUE SERVICE SUMMONSES WHICH DID NOT NAME A SPECIFIC
TAXPAYER WHO WAS UNDER INVESTIGATION.  E.G., UNITED STATES V. CARTER,
489 F.2D 413 (CA5 1973); UNITED STATES V. TURNER, 480 F.2D 272, 279
(CA7 1973); TILLOTSON V. BOUGHNER, 333 F.2D 515 (CA7), CERT. DENIED,
379 U.S. 913 (1964).  RESPONDENT UNDERTAKES TO DISTINGUISH THESE CASES
ON THE GROUND THAT THEY INVOLVED SITUTATIONS IN WHICH EITHER A TAXPAYER
WAS IDENTIFIED OR A TAX LIABILITY WAS KNOWN TO EXIST AS TO AN
UNIDENTIFIED TAXPAYER.  HOWEVER, WHILE THEY SERVE TO SUGGEST THE ALMOST
INFITE VARIETY OF FACTUAL SITUATIONS IN WHICH A "JOHN DOE" SUMMONS MAY
BE NECESSARY, IT DOES NOT FOLLOW THAT THESE CASES DEFINE THE LIMITS OF
THE INTERNAL REVENUE SERVICE'S POWER TO INQUIRE CONCERNING TAX
LIABILITY. 

THE FIRST QUESTION IS WHETHER THE WORDS OF THE STATUTE REQUIRE THE
RESTRICTIVE READING GIVEN THEM BY THE COURT OF APPEALS.  SECTION 7601
PERMITS THE INTERNAL REVENUE SERVICE TO INVESTIGATE AND INQUIRE AFTER
"ALL PERSONS . . . WHO MAY BE LIABLE TO PAY ANY INTERNAL REVENUE TAX .
. .."  TO AID IN THIS INVESTIGATIVE FUNCTION, 7602 AUTHORIZES THE
SUMMONING OF "ANY . . . PERSON" FOR THE TAKING OF TESTIMONY AND
EXAMINATION OF BOOKS WHICH MAY BE RELEVANT FOR "ASCERTAINING THE
CORRECTNESS OF ANY RETURN, . . . DETERMINING THE LABILITY OF ANY PERSON
. . . OR COLLECTING ANY SUCH LIABILITY . . .."  PLAINLY, THIS LANGUAGE
IS INCONSISTENT WITH AN INTERPRETATION THAT WOULD LIMIT THE ISSUANCE OF
SUMMONSES TO INVESTIGATIONS WHICH HAVE ALREADY FOCUSED UPON A
PARTICULAR RETURN, A PARTICULAR NAMED PERSON, OR A PARTICULAR POTENTIAL
TAX LIABILITY. 

MOREOVER, SUCH A READING OF THE INTERNAL REVENUE SERVICE'S SUMMONS
POWER IGNORES THE FACT THAT IT HAS A LEGITIMATE INTEREST IN LARGE OR
UNUSUAL FINANCIAL TRANSACTIONS, ESPECIALLY THOSE INVOLVING CASH.  THE
REASONS FOR THAT INTEREST ARE TOO NUMEROUS AND TOO OVIOUS TO CATALOG. 
INDEED, CONGRESS HAS RECENTLY DETERMINED THAT INFORMATION REGARDING
TRANSACTIONS WITH FOREIGN FINANCIAL INSTITUTIONS AND TRANSACTIONS WHICH
INVOLVE LARGE AMOUNTS OF MONEY IS SO LIKELY TO BE USEFUL TO PERSONS
RESPONSIBLE FOR ENFORCING THE TAX LAWS THAT IT MUST BE REPORTED BY
BANKS.  SEE GENERALLY CALIFORNIA BANKERS ASSN. V. SHULTZ, 416 U.S. 21,
26 - 40 (1974).     IT WOULD SEEM ELEMENTARY THAT NO MEANINGFUL
INVESTIGATION OF SUCH EVENTS COULD BE CONDUCTED IF THE IDENTITY OF THE
PERSONS INVOLVED MUST FIRST BE ASCERTAINED, AND THAT IS NOT ALWAYS AN
EASY TASK.  FIDUCIARIES AND OTHER AGENTS ARE UNDERSTANDABLY RELUCTANT
TO DISCLOSE INFORMATION REGARDING THEIR PRINCIPALS, AS RESPONDENT WAS
IN THIS CASE.  MOREOVER, IF CRIMINAL ACTIVITY IS AFOOT THE PERSONS
INVOLVED MAY WELL HAVE USED ALIASES OR TAKEN OTHER MEASURES TO COVER
THEIR TRACKS.  THUS, IF THE INTERNAL REVENUE SERVICE IS UNABLE TO ISSUE
A SUMMONS TO DETERMINE THE IDENTITY OF SUCH PERSONS, THE BROAD INQUIRY
AUTHORIZED BY 7601 WILL BE FRUSTRATED IN THIS CASS OF CASES.  SETTLED
PRINCIPLES OF STATUTORY INTERPRETATION REQUIRE THAT WE AVOID SUCH A
RESULT ABSENT UNAMBIGUOUS DIRECTIONS FROM CONGRESS.  SEE NLRB V. LION
OIL CO., 352 U.S. 282, 288 (1957); UNITED STATES V. AMERICAN TRUCKING
ASSNS., 310 U.S. 534, 542 - 544 (1940).  NO SUCH CONGRESSIONAL PURPOSE
IS DISCERNIBLE IN THIS CASE. 

WE HOLD THAT THE INTERNAL REVENUE SERVICE WAS ACTING WITHIN ITS
STATUTORY AUTHORITY IN ISSUING A SUMMONS TO RESPONDENT FOR THE PURPOSE
OF IDENTIFYING THE PERSON OR PERSONS WHO DEPOSITED 400 DECREPIT $100
BILLS WITH THE COMMERCIAL BANK OF MIDDLESBORO WITHIN THE SPACE OF A FEW
WEEKS.  FURTHER INVESTIGATION MAY WELL REVEAL THAT SUCH PERSON OR
PERSONS HAVE A PERFECTLY INNOCENT EXPLANATION FOR THE TRANSACTIONS.  IT
IS NOT UNKNOWN FOR TAXPAYERS TO HIDE LARGE AMOUNTS OF CURRENCY IN ODD
PLACES OUT OF A FEAR OF BANKS.  BUT ON THIS RECORD THE DEPOSITS WERE
EXTRAORDINARY, AND NO MEANINGFUL INQUIRY CAN BE MADE UNTIL RESPONDENT
COMPLIES WITH THE SUMMONS AS MODIFIED BY THE DISTRICT COURT. 

WE DO NOT MEAN TO SUGGEST BY THIS HOLDING THAT RESPONDENT'S FEARS
THAT THE 7602 SUMMONS POWER COULD BE USED TO CONDUCT "FISHING
EXPEDITIONS" INTO THE PRIVATE AFFAIRS OF BANK DEPOSITORS ARE TRIVIAL. 
HOWEVER, AS WE HAVE OBSERVED IN A SIMILAR CONTEXT: 

"'THAT THE POWER MAY BE ABUSED, IS NO GROUND FOR DENYING ITS
EXISTENCE.  IT IS A LIMITED POWER, AND SHOULD BE KEPT WITHIN ITS PROPER
BOUNDS; AND, WHEN THESE ARE EXCEEDED, A JURISDICTIONAL QUESTION IS
PRESENTED WHICH IS COGNIZABLE IN THE COURTS.'"  MCGRAIN V. DAUGHERTY,
273 U.S. 135, 166 (1927), QUOTING PEOPLE EX REL. MCDONALD V. KEELER, 99
N.Y. 463, 482 (1885).  SO HERE, CONGRESS HAS PROVIDED PROTECTION FROM
ARBITRARY OR CAPRICIOUS ACTION BY PLACING THE FEDERAL COURTS BETWEEN
THE GOVERNMENT AND THE PERSON SUMMONED.  THE DISTRICT COURT IN THIS
CASE CONSCIENTIOUSLY DISCHARGED ITS DUTY TO SEE THAT A LEGITIMATE
INVESTIGATION WAS BEING CONDUCTED AND THAT THE SUMMONS WAS NO BROADER
THAN NECESSARY TO ACHIEVE ITS PURPOSE. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED TO IT WITH DIRECTIONS TO AFFIRM THE ORDER OF THE DISTRICT
COURT. 

     IT IS SO ORDERED. 

/1/ THE INTERNAL REVENUE SERVICE AGENT TESTIFIED: 

"Q.  WHAT POSSIBLE TAX EFFECT COULD THIS HAVE ON THE TAXPAYER IF HE
IS DETERMINED? 

"A.  WELL, IT COULD BE ANYTHING FROM NOTHING AT ALL, A SIMPLE
EXPLANATION, OR IT COULD BE THAT THIS IS MONEY THAT HAS BEEN SECRETED
AWAY FOR A PERIOD OF TIME AS A MEANS OF AVOIDING THE TAX. 

.  .  .  . 

"Q.  THEN YOU REALLY HAVE NOT REACHED FIRST BASE YET, IS THAT
COREECT? 

"A.  THAT'S CORRECT." 

/2/ RESPONDENT ALSO ARGUES THAT, EVEN IF THE SUMMONS ISSUED IN THE
CASE WAS AUTHORIZED BY STATUTE, IT VIOLATES THE FOURTH AMENDMENT.  THIS
CONTENTION WASNOT PASSED UPON BY THE COURT OF APPEALS.  IN ANY EVENT,
AS NARROWED BY THE DISTRICT COURT THE SUMMONS IS AT LEAST AS SPECIFIC
AS THE REPORTING REQUIREMENTS WHICH WERE UPHELD AGAINST A FOURTH
AMENDMENT CHALLENGE BY BANKS IN CALIFORNIA BANKERS ASSN. V. SHULTZ, 416
U.S. 21, 63 - 70 (1974). 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE POWELL JOINS,
CONCURRING. 

I JOIN THE COURT'S OPINION AND ITS JUDGMENT, AND ADD THIS WORD ONLY
TO EMPHASIZE THE NARROWNESS OF THE ISSUE AT STAKE HERE.  WE DECIDE
TODAY THAT THE INTERNAL REVENUE SERVICE HAS STATUTORY AUTHORITY TO
ISSUE A SUMMONS TO A BANK IN ORDER TO ASCERTAIN THE IDENTITY OF A
PERSON WHOSE TRANSACTIONS WITH THAT BANK STRONGLY SUGGEST LIABILITY FOR
UNPAID TAXES.  UNDER THE CIRCUMSTANCES HERE, THERE WAS AN OVERWHELMING
PROBABILITY, IF NOT A CERTITUDE, THAT ONE INDIVIDUAL OR ENTITY WAS
RESPONSIBLE FOR THE DEPOSITS.  THE UNIFORMLY DETERIORATED CONDITION OF
THE CURRENCY AND THE AMOUNT, COMBINED WITH OTHER UNUSUAL ASPECTS, GAVE
THE SERVICE GOOD REASON, AND, INDEED, THE DUTY TO INVESTIGATE.  THE
SERVICE'S SUSPICION AS TO POSSIBLE LIABILITY WASMORE THAN PLAUSIBLE. 
/1/ THE SUMMONS WAS CLOSELY SCRUTINIZED AND APPROPRIATELY NARROWED IN
SCOPE BY THE UNITED STATES DISTRICT COURT. 

THE SUMMONS, IN SHORT, WAS ISSUED PURSUANT TO AN GENUINE
INVESTIGATION.  THE SERVICE WAS NOT ENGAGED IN RESEARCHING SOME GENERAL
PROBLEM; ITS MISSION WAS NOT EXPLORATORY.  THE DISTINCTION BETWEEN AN
INVESTIGATIVE AND A MORE GENERAL EXPLORATORY PURPOSE HAS BEEN STRESSED
APPROPRIATELY BY FEDERAL COURTS, SEE, E.G., UNITED STATES V. HUMBLE OIL
& REFINING CO., 488 F.2D 953, 958 (CA5 1974), PET. FOR CERT. PENDING,
NO. 73 - 1827; UNITED STATES V. ARMOUR, 376 F.SUPP.  318 (CONN. 1974),
AND THAT DISTINCTION IS IMPORTANT TO OUR DECISION HERE. 

WE NEED NOT DECIDED IN THIS CASE WHETHER THE SERVICE HAS STATUTORY
AUTHORITY TO ISSUE A "JOHN DOE" SUMMONS WHERE NEITHER A PARTICULAR
TAXPAYER NOR AN ASCERTAINABLE GROUP OF TAXPAYERS IS UNDER
INVESTIGATION.  AT MOST, WE HOLD THAT THE SERVICE IS NOT ALWAYS
REQUIRED TO STATE A TAXPAYER'S NAME IN ORDER TO OBTAIN ENFORCEMENT OF
ITS SUMMONS, AND THAT UNDER THE CIRCUMSTANCES OF THIS CASE IT IS
DEFINITELY NOT REQUIRED TO DO SO.  WE DO NOT DECIDE THAT A "JOHN DOE"
SUMMONS IS ALWAYS ENFORCEABLE WHERE THE NAME OF AN INDIVIDUAL IS
LACKING AND THE SERVICE'S PURPOSE IS OTHER THAN INVESTIGATIVE. 

UPON THIS UNDERSTANDING, I JOIN THE COURT'S OPINION. 

/1/ THE SERVICE MAY NOT HAVE REACHED "FIRST BASE," SEE ANTE, AT 143
N. 1, BUT IT HAD BEEN AT BAT BEFORE, AND IT KNEW BOTH THE GAME AND THE
BALL PARK WELL. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE COURT TODAY SAYS THAT IT "RECOGNIZES) THAT THE AUTHORITY VESTED
IN TAX COLLECTORS MAY BE ABUSED," ANTE, AT 146, BUT IT IS NONETHELESS
UNABLE TO FIND ANY STATUTORY LIMITATION UPON THAT AUTHORITY.  THE ONLY
"PROTECTION" FROM ABUSE THAT CONGRESS HAS PROVIDED, IT SAYS, IS
"PLACING THE FEDERAL COURTS BETWEEN THE GOVERNMENT AND THE PERSON
SUMMONED," ANTE, AT 151.  BUT THAT, OF COURSE, IS NO PROTECTION AT ALL,
UNLESS THE FEDERAL COURTS ARE PROVIDED WITH A MEASURABLE STANDARD WHEN
ASKED TO ENFORCE A SUMMONS.  I AGREE WITH THE COURT OF APPEALS THAT
CONGRESS HAS PROVIDED SUCH A STANDARD, AND THAT THE STANDARD WAS NOT
MET IN THIS CASE.  ACCORDINGLY, I RESPECTFULLY DISSENT FROM THE OPINION
AND JUDGMENT OF THE COURT. 

CONGRESS HAS CAREFULLY RESTRICTED THE SUMMONS POWER TO CERTAIN
RATHER PRECISELY DELINEATED PURPOSES: 

"ASCERTAINING THE CORRECTNESS OF ANY RETURN, MAKING A RETURN WHERE
NONE HAS BEEN MADE, DETERMINING THE LIABILITY OF ANY PERSON FOR ANY
INTERNAL REVENUE TAX OR THE LIABILITY AT LAW OR IN EQUITY OF ANY
TRANSFEREE OR FIDUCIARY OF ANY PERSON IN RESPECT OF ANY INTERNAL
REVENUE TAX, OR COLLECTING ANY SUCH LIABILITY."  26 U.S.C. 7602.  THIS
PROVISION SPEAKS IN THE SINGULAR--REFERRING TO "THE CORRECTNESS OF ANY
RETURN" AND TO "THE LIABILITY OF ANY PERSON."  THE DELINEATED PURPOSES
ARE JOINTLY DENOMINATED AN "INQUIRY" CONCERNING "THE PERSON LIABLE FOR
TAX OR REQUIRED TO PERFORM THE ACT," AND THE SUMMONS IS DESIGNED TO
FACILITATE THE "(EXAMINATION OF BOOKS AND WITNESSES" WHICH "MAY BE
RELEVANT OR MATERIAL TO SUCH INQUIRY."  26 U.S.C. 7602 (1), (2), AND
(3).  THIS LANGUAGE INDICATES UNMISTAKABLY THAT THE SUMMONS POWER IS A
TOOL FOR THE INVESTIGATION OF PARTICULAR TAXPAYERS. 

BY CONTRAST, THE GENERAL DUTIES OF THE IRS ARE VASTLY BROADER THAN
ITS SUMMONS AUTHORITY.  FOR INSTANCE, 7601 MANDATES A "(CANVASS OF
DISTRICTS FOR TAXABLE PERSONS AND OBJECTS."  UNLIKE 7602, THE
CANVASSING PROVISION SPEAKS BROADLY AND IN THE PLURAL, INSTRUCTING
TREASURY DEPARTMENT OFFICIALS 

"TO PROCEED, FROM TIME TO TIME, THROUGH EACH INTERNAL REVENUE
DISTRICT AND INQUIRE AFTER AND CONCERNING ALL PERSONS THEREIN WHO MAY
BE LIABLE TO PAY ANY INTERNAL TAX, AND ALL PERSONS OWNING OR HAVING THE
CARE AND MANAGEMENT OF ANY OBJECTS WITH RESPECT TO WHICH ANY TAX IS
IMPOSED."  (EMPHASIS "TO PROCEED, FROM TIME TO TIME, THROUGH EACH
INTERNAL REVENUE DISTRICT AND INQUIRE AFETER AND CONCERNIG ALL PERSONS
THERIN WHO MAY BE LIABLE TO PAY ANY INTERNAL REVENUW TAX, AND ALL
PERSONS OWNING OR HAVING THE CARE AND MANAGEMENT OF ANY OBJECTS WITH
RESPECT TO WHICH ANY TAX IS IMPOSED."  (EMPHASIS ADDED.)  ADDED.) 

VIRTUALLY ALL "PERSONS" OR "OBJECTS" IN THIS COUNTRY "MAY," OF
COURSE, HAVE FEDERAL TAX PROBLEMS.  EVERY DAY THE ECONOMY GENERATES
THOUSANDS OF SALES, LOANS, FIGTS, PURCHASES, LEASES, DEPOSITS, MERGERS,
WILLS, AND THE LIKE WHICH--BECAUSE OF THEIR SIZE OR COMPLEXITY--SUGGEST
THE POSSIBILITY OF TAX PROBLEMS FOR SOMEBODY.  OUR ECONOMY IS "TAX
RELEVANT" IN ALMOST EVERY DETAIL.  ACCORDINGLY, IF A SUMMONS COULD
ISSUE FOR ANY MATERIAL CONCEIVEABLY RELEVANT TO "TAXATION"--THAT IS,
RELEVANT TO THE GENERAL DUTIES OF THE IRS--THE SERVICE COULD USE THE
SUMMONS POWER AS A BROAD RESEARCH DEVICE.  THE SERVICE COULD USE THAT
POWER METHODICALLY TO FORCE DISCLOSURE OF WHOLE CATEGORIES OF
TRANSACTIONS AND CLOSELY MONITOR THE OPERATIONS OF MYRIAD SEGMENTS OF
THE ECONOMY ON THE THEORY THAT THE INFORMATION THEREBY ACCUMULATED
MIGHT FACILITATE THE ASSESSMENT AND COLLECTION OF SOME KIND OF A
FEDERAL TAX FROM SOMEBODY.  CF. UNITED STATES V. HUMBLE OIL & REFINING
CO., 488 F.2D 953.  AND THE COURT'S OPINION TODAY SEEMS TO AUTHORIZE
EXACTLY THAT. 

BUT CONGRESS HAS PROVIDED OTHERWISE.  THE CONGRESS HAS RECOGNIZED
THAT INFORMATION CONCERNING CERTAIN CLASSES OF TRANSACTIONS IS OF
PECULIAR IMPORTANCE TO THE SOUND ADMINISTRATION OF THE TAX SYSTEM, BUT
THE LEGISLATIVE SOLUTION HAS NOT BEEN THE CONFERRAL OF A LIMITLESS
SUMMONS POWER.  INSTEAD, VARIOUS SPECIAL-PURPOSE STATUTES HAVE BEEN
WRITTEN TO REQUIRE THE REPORTING OR DISCLOSURE OF PARTICULAR KINDS OF
TRANSACTIONS.  E.G., 26 U.S.C. 6049, 6051 - 6053, 31 U.S.C. 1081 -
1083, 1101, AND 1121 - 1122, AND 31 U.S.C. 1141 - 1143 (1970 ED., SUP.
III).  MEANWHILE, THE SCOPE OF THE SUMMONS POWER ITSELF HAS BEEN KEPT
NARROW.  CONGRESS HAS NEVER MADE THAT POWER COEXTENSIVE WITH THE
SERVICE'S BROAD AND GENERAL CANVASSING DUTIES SET OUT IN 7601. 
INSTEAD, THE SUMMONS POWER HAS ALWAYS BEEN RESTRICTED TO THE PARTICULAR
PURPOSES OF INDIVIDUAL INVESTIGATION, DELINEATED IN 7602.  /1/ 

THUS, A FINANCIAL OR ECONOMIC TRANSACTION IS NOT SUBJECT TO
DISCLOSURE THROUGH SUMMONS MERELY BECAUSE IT IS LARGE OR UNUSUAL OR
GENERALLY "TAX RELEVANT"--BUT ONLY WHEN THE SUMMONED INFORMATION IS
REASONABLY PERTINENT TO AN ONGOING INVESTIGATION OF SOMEBODY'S TAX
STATUS.  THIS RESTRICTION CHECKS POSSIBLE ABUSES OF THE SUMMONS POWER
IN TWO RATHER OBVIOUS WAYS.  FIRST, IT GUARDS AGAINST AN OVERBROAD
SUMMONS BY ALLOWING THE ENFORCING COURT TO PRUNE AWAY THOSE DEMANDS
WHICH ARE NOT RELEVANT TO THE PARTICULAR, ONGOING INVESTIGATION.  SEE,
E.G., FIRST NAT. BANK OF MOBILE V. UNITED STATES, 160 F.2D 532, 533 -
535.  SECOND, THE RESTRICTION ALTOGETHER PROHIBITS A SUMMONS WHICH IS
WHOLLY UNCONNECTED WITH SUCH AN INVESTIGATION. 

THE COURT TODAY COMPLETELY OBLITERATES THE HISTORIC DISTINCTION
BETWEEN THE GENERAL DUTIES OF THE IRS, SUMMARIZED IN 7601, AND THE
LIMITED PURPOSES OF WHICH A SUMMONS MAY ISSUE, SPECIFIED IN 7602. 
RELYING HEAVILY ON 7601, AND NOTING THAT THE IRS "HAS A LEGITIMATE
INTEREST IN LARGE OR UNUSUAL FINANCIAL TRANSACTIONS, ESPECIALLY THOSE
INVOLVING CASH," ANTE, AT 149, THE COURT APPROVES ENFORCEMENT OF A
SUMMONS HAVING NO INVESTIGATIVE PREDICATE.  THE SOLE PREMISE FOR THIS
SUMMONS WAS THE SERVICE'S THEORY THAT THE DEPOSIT OF OLD WORNOUT $100
BILLS WAS A SUFFICIENTLY UNUSUAL AND INTERESTING TRANSACTION TO JUTIFY
COMPULSORY DISCLOSURE OF THE IDENTITIES OF ALL THE LARGE-AMOUNT
DEPOSITORS AT THE RESPONDENT'S BANK OVER A ONE-MONTH PERIOD.  /2/ THAT
THE SUMMONS WAS NOT INCIDENT TO AN ONGOING, PARTICULARIZED
INVESTIGATION, BUT WAS MERELY A SHOT IN THE DARK TO SEE IF ONE MIGHT BE
WARRANTED, WAS FREELY CONCEDED BY THE IRS AGENT WHO SERVED THE
SUMMONS.  /3/ 

THE COURT'S OPINION THUS APPROVES A BREATHTAKING EXPANSION OF THE
SUMMONS POWER:  THERE ARE OBVIOUSLY THOUSANDS OF TRANSACTIONS OCCURRING
DAILY THROUGHOUT THE COUNTRY WHICH, ON THEIR FACE, SUGGEST THE
POSSIBILITY OF TAX COMPLICATIONS FOR THE UNKNOWN PARTIES INVOLVED. 
THESE TRANSACTIONS WILL NOW BE SUBJECT TO FORCED DISCLOSURE AT THE WHIM
OF ANY IRS AGENT, SO LONG ONLY AS HE IS ACTING IN "GOOD FAITH."  ANTE,
AT 146. 

THIS IS A SHARP AND DANGEROUS DETOUR FROM THE SETTLED COURSE OF
PRECEDENT.  THE DECISION OF THE COURT OF APPEALS IN THIS CASE HAS BEEN
EXPLICITLY ACCEPTED AS SOUND BY THE COURTS OF APPEALS OF TWO OTHER
CIRCUITS.  SEE UNITED STATES V. BERKOWITZ, 488 F.2D 1235, 1236 (CA3),
AND UNITED STATES V. HUMBLE OIL & REFINING CO., 488 F.2D 953, 960
(CA5).  NO FEDERAL COURT HAS DISAGREED WITH IT. 

THE FEDERAL COURTS HAVE ALWAYS SCRUTINIZED WITH PARTICULAR CARE ANY
IRS SUMMONS DIRECTED TO A "THIRD PARTY," I.E., TO A PARTY OTHER THAN
THE TAXPAYER UNDER INVESTIGATION.  SEE, E.G., UNITED STATES V. HUMBLE
OIL & REFINING CO., SUPRA, AT 963; VENN V. UNITED STATES, 400 F.2D 207,
211 - 212; UNITED STATES V. HARRINGTON, 388 F.2D 520, 523.  WHEN, AS
HERE, THE THIRD-PARTY SUMMONS DOES NOT IDENTIFY THE PARTY UNDER
INVESTIGATION, A PRESUMPTION NATURALLY ARISES THAT THE SUMMONS IS NOT
GENUINELY INVESTIGATIVE BUT MERELY EXPLORATORY--A DEVICE FOR GENERAL
RESEARCH OR FOR THE HIT-OR-MISS MONITORING OF "UNUSUALY" TRANSACTIONS. 
UNLESS THIS PRESUMPTION IS REBUTTED BY THE SERVICE, THE COURTS HAVE
DENIED ENFORCEMENT.     THUS, THE IRS WAS NOT PERMITTED TO SUMMON FROM
A BANK THE NAMES AND ADDRESSES OF ALL BENEFICIARIES OF CERTAIN TYPES OF
TRUST ARRANGEMENTS MERELY ON THE THEORY THAT THESE ARRANGEMENTS WERE
UNUSUAL IN FORM OR SIZE.  MAYS V. DAVIS, 7 F.SUPP.  596.  NOR COULD THE
SERVICE FORCE A COMPANY TO DISCLOSE THE IDENTITY OF WHOLE CLASSES OF
ITS OIL LAND LESSEES MERELY ON THE THEORY THAT OIL LESSEES COMMONLY
HAVE TAX PROBLEMS.  UNITED STATES V. HUMBLE OIL & REFINING CO., SUPRA.
SEE ALSO MCDONOUGH V. LAMBERT, 94 F.2D 838; FIRST NAT. BANK OF MOBILE
V. UNITED STATES, 160 F.2D,AT 533 - 535; TEAMSTERS V. UNITED STATES,
240 F.2D 387, 390. 

ON THE OTHER HAND, ENFORCEMENT HAS BEEN GRANTED WHERE THE SERVICE
HAS BEEN ABLE TO DEMONSTRATE THAT THE JOHN DOE SUMMONS WAS ISSUED
INCIDENT TO AN ONGOING AND PARTICULARIZED INVESTIGATION.  THUS,
ENFORCEMENT WAS GRANTED OF SUMMONSES SEEKING TO IDENTIFY THE CLIENTS OF
THOSE TAX RETURN PREPARATION FIRMS WHICH PRIOR INVESTIGATION HAD SHOW
TO BE LESS THAN HONEST OR ACCURATE IN THE PREPARATION OF SAMPLE
RETURNS.  UNITED STATES V. THEODORE, 479 F.2D 749; UNITED STATES V.
TURNER, 480 F.2D 272; UNITED STATES V. BERKOWITZ, SUPRA; UNITED STATES
V. CARTER, 489 F.2D 413.  SIMILARLY, ENFORCEMENT WAS GRANTED OF
SUMMONSES DIRECTED TO AN ATTORNEY, AND HIS BANK, SEEKING TO IDENTIFY
THE CLIENT FOR WHOM THE ATTORNEY HAD MAILED TO THE IRS A LARGE,
ANONYMOUS CHECK, PURPORTING TO SATISFY AN OUTSTANDING TAX DEFICIENCY OF
THE CLIENT.  TILLOTSON V. BOUGHNER, 333 F.2D 515; SCHULZE V. RAYUNEC,
350 F.2D 666.  LIKE THE PRIOR INVESTIGATIVE WORK IN THE TAX-RETURN
PREPARER CASES, THE RECEIPT OF THE MYSTERIOUS CHECK ESTABLISHED THE
PREDICATE OF A PARTICULARIZED INVESTIGATION WHICH WAS NECESSARY, UNDER
7602, TO THE ENFORCEMENT OF A SUMMONS.  IN EACH CASE, THE SERVICE HAD
ALREADY PROCEEDED TO THE POINT WHERE THE UNKNOWN INDIVIDUAL'S TAX
LIABILITY HAD BECOME A REASONABLE POSSIBILITY, RATHER THAN A MATTER OF
SHEER SPECULATION. 

TODAY'S DECISION SHATTERS THIS LONG LINE OF PRECEDENT.  FOR THIS
SUMMONS, THERE WAS ABSOLUTELY NO INVESTIGATIVE PREDICATE.  THE SOLE
INDICATION OF THIS JOHN DOE'S TAX LIABILITY WAS THE UNUSUAL CHARACTER
OF THE DEPOSIT TRANSACTION ITSELF.  ANY PRIVATE ECONOMIC TRANSACTION IS
NOW FAIR GAME FOR FORCED DISCLOSURE, IF ANY IRS AGENT HAPPENS IN GOOD
FAITH TO WANT IT DISCLOSED.  THIS NEW RULE SIMPLY DISREGARDS THE
LANGUAGE OF 7602, AND THE BODY OF ESTABLISHED CASE LAW CONSTRUING IT. 

THE COURT'S ATTEMPT TO JUSTIFY THIS EXTRAORDINARY DEPARTURE FROM
ESTABLISHED LAW IS HARDLY PERSUASIVE.  THE COURT FIRST NOTED THAT A
WITNESS MAY NOT REFUSE TESTIMONY TO A GRAND JURY MERELY BECAUSE THE
GRAND JURY HAS NOT YET SPECIFIED THE "IDENTITY OF THE OFFENDER," ANTE,
AT 147, QUOTING BLAIR V. UNITED STATES, 250 U.S. 273, 282.  THIS IS
TRUE BUT IRRELEVANT.  THE IRS IS NOT A GRAND JURY.  IT IS A CREATURE
NOT OF THE CONSTITUTION BUT OF LEGISLATION AND IS THUS PECULIARLY
SUBJECT TO LEGISLATIVE CONSTRAINTS.  SEE IN RE GROBAN, 352 U.S. 330,
346 (BLACK, J., DISSENTING).  IT IS TRUE THAT THE COURT DREW AN ANALOGY
BETWEEN AN IRS SUMMONS AND A GRAND JURY SUBPOENA IN UNITED STATES V.
POWELL, 379 U.S. 48, 57, BUT THIS WAS MERELY TO EMPHASIZE THAT AN IRS
SUMMONS DOES NOT REQUIRE THE SUPPORT OF "PROBABLE CAUSE" TO SUSPECT TAX
FRAUD WHEN THE SUMMONS IS ISSUED INCIDENT TO AN ONGOING, INDIVIDUALIZED
INVESTIGATION OF AN IDENTIFIED PARTY.  A MAJOR PREMISE OF POWELL WAS
THAT AN EXTRASTATUTORY "PROBABLE CAUSE" REQUIREMENT WAS UNNECESSARY IN
VIEW OF THE "LEGITIMATE PURPOSE" REQUIREMENTS ALREADY SPECIFIED IN
7602, 379 U.S.,AT 56 - 57. 

THE COURT NEXT SUGGESTS THAT THIS EXPANSION OF THE SUMMONS POWER IS
INNOCUOUS, AT LEAST ON THE FACTS OF THIS CASE, BECAUSE THE BANK SECRECY
ACT OF 1970 /4/ ITSELF COMPELS BANKS TO DISCLOSE THE IDENTITY OF
CERTAIN CASH DEPOSITORS.  ANTE, AT 149 - 150.  ASIDE FROM THE FACT THAT
THE SUMMONS AT ISSUE HERE FORCES DISCLOSURE OF SOME DEPOSITS NOT
COVERED BY THE ACT AND ITS ATTENDANT REGULATIONS, /5/ THE ARGUMENT HAS
A MORE BASIC FLAW.  IF THE SUMMONS AUTHORITY OF 7602 ALLOWS
PREINVESTIGATIVE INQUIRY INTO ANY LARGE OR UNUSUAL BANK DEPOSIT, THE
1970 ACT WAS LARGELY REDUNDANT.  THE IRS COULD HAVE SAVED CONGRESS
MONTHS OF HEARINGS AND DEBATES BY SIMPLY DIRECTING 7602 SUMMONSES ON A
REGULAR BASIS TO THE NATION'S BANKS, DEMANDING THE IDENTITIES OF THEIR
LARGE CASH DEPOSITORS.  IN CALIFORNIA BANKERS ASSN. V. SCULTZ, 416 U.S.
21, WE GAVE EXTENDED CONSIDERATION TO THE COMPLEX CONSTITUIONAL ISSUES
RAISED BY THE 1970 ACT; SOME OF THOSE ISSUES--E.G., WHETHER AND TO WHAT
EXTENT BANK DEPOSITORS HAVE FOURTH AMENDMENT AND FIFTH AMENDMENT RIGHTS
TO THE SECRECY OF THEIR DOMESTIC DEPOSITS--WERE LEFT UNRESOLVED BY THE
COURT'S OPINION, ID., AT 67 - 75.  IF THE DISCLOSURE REQUIREMENTS IN
THE 1970 ACT WERE ALREADY ENCOMPASSED WITHIN THE SERVICE'S SUMMONS
POWER, ONE MUST WONDER WHY THE COURT LABORED SO LONG AND CAREFULLY IN
SHULTZ. 

FINALLY, THE COURT SUGGESTS THAT RESPECT FOR THE PLAIN LANGUAGE OF
7602 WOULD "UNDERMINE THE EFFICACY OF THE FEDERAL TAX SYSTEM, WHICH
SEEKS TO ASSURE THAT TAXPAYERS PAY WHAT CONGRESS HAS MANDATED AND
PREVENTS DISHONEST PERSONS FROM ESCAPING TAXATION AND THUS SHIFTING
HEAVIER BURDENS TO HONEST TAXPAYERS."  ANTE, AT 146.  BUT THE FEDERAL
COURTS HAVE APPLIED THE STRICTURES OF 7602, AND ITS PREDECESSORS, FOR
MANY DECADES WITHOUT OCCASIONING THESE DIRE EFFECTS.  IF SUCH A DANGER
EXISTS, CONGRESS CAN DEAL WITH IT.  BUT UNTIL CONGRESS CHANGES THE
PROVISION OF 7602, IT IS OUR DUTY TO APPLY THE STATUTE AS IT IS
WRITTEN. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/ THE CANVASSING DUTIES AND THE SUMMONS POWER HAVE ALWAYS BEEN
FOUND IN SEPARATE AND DISTINCT SUTATUTORY PROVISIONS.  THE SPATIAL
PROXIMITY OF THE TWO CONTEMPORARY PROVISIONS IS UTTERLY WITHOUT LEGAL
SIGNIFICANCE.  26 U.S.C. 7806(B).  THE FROM 3172 OF THE REVISED
STATUTES OF 1874.  SEE DONALDSON V. UNITED STATES, 400 U.S. 517, 523 -
524.  THE SUMMONS POWER, HOWEVER, HAS DIFFERENT HISTORICAL ROOTS. 
FORWARD SEVERAL PRIOR STATUTES, WITH "NO MATERIAL CHANGE FROM EXISTING
LAW."  H. R. REP. NO. 1337, 83D CONG., 2D SESS., A436; S. REP. NO.
1622, 83D CONG., 2D SESS., 617.  THE RELEVANT PRIOR STATUTES WERE 3614
AND 3615(A) - (C) OF THE INTERNAL REVENUE CODE OF 1939.  SEE TABLE II
OF THE 1954 CODE, 68A STAT. 969.  SECTION 3614 GRANTED THE SUMMONS
POWER TO THE COMMISSIONER "FOR THE PURPOSE OF ASCERTAINING THE
CORRECTNESS OF ANY RETURN OR FOR THE PURPOSE OF MAKING A RETURN WHERE
NONE HAS BEEN MADE."  SECTIONS 3615(A) - (C) GRANTED THE SUMMONS POWER
TO "COLLECTORS" AND PROVIDED THAT A "SUMMONS MAY BE ISSUED" WHENEVER
"ANY PERSON" REFUSES TO MAKE A RETURN OR MAKES A FALSE OR FRAUDULENT
RETURN.  THUS, LIKE THE PRESENT 7602, THESE EARLIER PROVISIONS CLEARLY
LIMITED USE OF THE SUMMONS POWER TO THE INVESTIGATION OF PARTICULAR
TAXPAYERS. 

/2/ THE SUMMONS HERE USED A SCATTERSHOT TECHNIQUE TO LEARN THE
IDENTITY OF THE UNKNOWN DEPOSITOR.  RATHER THAN MERELY ASKING BANK
OFFICIALS WHO THE DEPOSITOR WAS, THE IRS REQUIRED PRODUCTION OF ALL
DEPOSIT SLIPS EXCEEDING SPECIFIED AMOUNTS THAT HAD BEEN FILLED OUT
DURING THE PERIOD WHEN THE SUSPECT DEPOSITS WERE, PRESUMABLY, MADE. 
THUS, ENFORCEMENT OF THE SUMMONS, EVEN AS REDRAFTED BY THE DISTRICT
COURT, WILL DOUBTLESSLY APPRISE THE IRS OF THE IDENTITIES OF MANY BANK
DEPOSITORS OTHER THAN THE ONE WHO SUBMITTED THE OLD AND WORNOUT $100
BILLS. 

/3/ HE TESTIFIED AT THE ENFORCEMENT HEAR: 

"Q.  WHAT POSSIBLE TAX EFFECT COULD THIS HAVE ON THE TAXPAYER IF HE
IS DETERMINED? 

"A.  WELL, IT COULD BE ANYTHING FROM NOTHING AT ALL, A SIMPLE
EXPLANATION, OR IT COULD BE THAT THIS IS MONEY THAT HAS BEEN SECRETED
AWAY FOR A PERIOD OF TIME AS A MEANS OF AVOIDING TAX. 

        .  .  . 

"Q.  THEN YOU REALLY HAVE NOT REACHED FIRST BASE YET, IS THAT
CORRECT? 

"A.  THAT'S CORRECT." 

/4/ PUB. L. 91 - 508, 84 STAT. 1113, 12 U.S.C. 1730D, 1829B, 1951 -
1959, AND 31 U.S.C. 1051 - 1062, 1081 - 1083, 1101 - 1105, 1121 -
1122.  SEE CALIFORNIA BANKERS ASSN. V. SHULTZ, 416 U.S. 21. 

/5/ AS LIMITED BY THE DISTRICT COURT, THE SUMMONS CALLS FOR
PRODUCTION OF DEPOSIT SLIPS SHOWING CASH DEPOSITS IN THE AMOUNT OF
$20,000 AND DEPOSIT SLIPS SHOWING CASH DEPOSITS OF $5,000 OR MORE
INVOLVING $100 BILLS, FOR DEPOSITS MADE BETWEEN OCTOBER 16 AND NOVEMBER
16, 1970.  CURRENT REGULATIONS UNDER THE BANK SECRECY ACT REQUIRE
REPORTING ONLY WITH RESPECT TO CASH TRANSACTIONS EXCEEDING $10,000.  31
CFR 103.22 (1974). 

STUART A. SMITH ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
CRAMPTON, AND DEPUTY SOLICITOR GENERAL WALLACE. 

WILLIAM A. WATSON ARGUED THE CAUSE AND FILED A BRIEF FOR 

RESPONDENT. 

THE AMERICAN BANKDERS ASSN. FILED A BRIEF AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :
























DROPE V. MISSOURI, 420 U.S. 162 


       DROPE V. MISSOURI

        CERTIORARI TO THE COURT OF APPEALS OF MISSOURI FOR THE ST.

           LOUIS DISTRICT

        NO. 73 - 6038.  ARGUED NOVEMBER 13, 1974--DECIDED FEBRUARY

           19, 1975; 498 S.W.2D 838, REVERSED AND REMANDED. 


    IN 1969 PETITIONER WAS INDICTED, WITH TWO OTHERS, FOR RAPE OF

  PETITIONER'S WIFE.  FOLLOWING SEVERANCE OF PETITIONER'S CASE, HE

  FILED A MOTION FOR A CONTINUANCE SO THAT HE MIGHT BE FURTHER

  EXAMINED AND RECEIVE PSYCHIATRIC TREATMENT, ATTACHING THERETO THE

  REPORT OF A PSYCHIATRIST WHO HAD EXAMINED HIM AT HIS COUNSEL'S

  REQUEST AND HAD SUGGESTED SUCH TREATMENT.  THE MOTION WAS DENIED

  AND THE CASE PROCEEDED TO TRIAL.  PETITIONER'S WIFE TESTIFIED,

  REPEATING AND CONFIRMING INFORMATION CONCERNING PETITIONER'S

 "STRANGE BEHAVIOR" WHICH WAS CONTAINED IN THE REPORT AND STATING

  THAT SHE HAD CHANGED HER MIND ABOUT NOT WANTING TO PROSECUTE

  PETITIONER BECAUSE HE HAD TRIED TO KILL HER ON THE SUNDAY PRIOR

  TO TRIAL.  ON THE SECOND DAY OF THE TRIAL PETITIONER SHOT HIMSELF

  IN A SUICIDE ATTEMPT AND WAS HOSPITALIZED, BUT DESPITE HIS

  ABSENCE THE TRIAL COURT DENIED A MOTION FOR A MISTRIAL ON THE

  GROUND THAT HIS ABSENCE WAS VOLUNTARY, AND THE TRIAL CONTINUED. 

  THE JURY RETURNED A GUILTY VERDICT AND PETITIONER WAS SENTENCED

  TO LIFE IMPRISONMENT.  HIS MOTION FOR A NEW TRIAL, ASSERTING THAT

  THE TRIAL COURT HAD ERRED IN PROCEEDING WITH THE TRIAL WHEN NO

  EVIDENCE WAS PRODUCED THAT HIS ABSENCE WAS VOLUNTARY WAS DENIED,

  THE TRIAL COURT FINDING AGAIN THAT HIS ABSENCE WAS VOLUNTARY. 

  THE MISSOURI SUPREME COURT AFFIRMED, SUSTAINING THAT FINDING AND

  ALSO HOLDING THAT THE TRIAL COURT'S DENIAL OF THE CONTINUANCE

  MOTION WAS NOT AN ABUSE OF DISCRETION.  SUBSEQUENTLY,

  PETITIONER'S MOTION TO VACATE THE CONVICTION AND SENTENCE,

  ALLEGING, INTER ALIA, THAT HIS CONSTITUTIONAL RIGHTS HAD BEEN

  VIOLATED BY THE FAILURE TO ORDER A PRETRIAL PSYCHIATRIC

  EXAMINATION AND BY COMPLETING THE TRIAL IN HIS ABSENCE, WAS

  DENIED.  THE MISSOURI COURT OF APPEALS AFFIRMED, HOLDING THAT

NEITHER THE PSYCHIATRIC REPORT ATTACHED TO PETITIONER'S MOTION

  FOR A CONTINUANCE NOR HIS WIFE'S TESTIMONY RAISED A REASONABLE

  DOUBT OF HIS FITNESS TO PROCEED, THAT PETITIONER'S SUICIDE

  ATTEMPT DID NOT CREATE A REASONABLE DOUBT OF HIS COMPETENCE AS A

  MATTER OF LAW, AND THAT HE HAD FAILED TO DEMONSTRATE THE

  INADEQUACY OF THE PROCEDURES EMPLOYED FOR PROTECTING HIS RIGHTS. 

  THE COURT ALSO HELD THAT THE TRIAL COURT'S FINDING AS TO

  VOLUNTARY ABSENCE WAS NOT CLEARLY ERRONEOUS.  HELD: 

     1.  THE MISSOURI COURTS FAILED TO ACCORD PROPER WEIGHT TO THE

  EVIDENCE SUGGESTING PETITIONER'S INCOMPETENCE.  WHEN CONSIDERED

  TOGETHER WITH THE INFORMATION AVAILABLE PRIOR TO TRIAL AND

  TESTIMONY OF PETITIONER'S WIFE AT TRIAL, THE INFORMATION

  CONCERNING PETITIONER'S SUICIDE ATTEMPT CREATED A SUFFICIENT

  DOUBT OF HIS COMPETENCE TO STAND TRAIL TO REQUIRE FURTHER

INQUIRY.  PP. 178 - 181. 

     2.  WHATEVER THE RELATIONSHIP BETWEEN MENTAL ILLNESS AND

  INCOMPETENCE TO STAND TRIAL, IN THIS CASE THE BEARING OF THE

  FORMER ON THE LATTER WAS SUFFICIENTLY LIKELY THAT, IN LIGHT OF

  THE EVIDENCE OF PETITIONER'S BEHAVIOR INCLUDING HIS SUICIDE

  ATTEMPT, AND THERE BEING NO OPPORTUNITY WITHOUT HIS PRESENCE TO

  EVALUATE THAT BEARING IN FACT, THE CORRECT COURSE WAS TO SUSPEND

  THE TRIAL UNTIL SUCH AN EVALUATION COULD BE MADE.  PP. 181 -

  182. 

     3.  ASSUMING PETITIONER'S RIGHT TO BE PRESENT AT THE TRIAL WAS

  ONE THAT COULD BE WAIVED, THERE WAS AN INSUFFICIENT INQUIRY TO

  AFFORD A BASIS FOR DECIDING THE ISSUE OF WAIVER.  P. 182. 

     4.  PETITIONER'S DUE PROCESS RIGHTS WOULD NOT BE ADEQUATELY

  PROTECTED BY REMANDING THE CASE FOR A PSYCHIATRIC EXAMINATION TO

  DETERMINE WHETHER HE WAS IN FACT COMPETENT TO STAND TRIAL IN

 1969, BUT THE STATE IS FREE TO RETRY HIM, ASSUMING THAT AT THE

  TIME OF SUCH TRIAL HE IS COMPETENT TO BE TRIED.  P. 183. 

     BURGER, C. J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO CONSIDER PETITIONER'S CLAIMS
THAT HE WAS DEPRIVED OF DUE PROCESS OF LAW BY THE FAILURE OF THE TRIAL
COURT OT ORDER A PSYCHIATRIC EXAMINATION WITH RESPECT TO HIS COMPETENCE
TO STAND TRIAL AND BY THE CONDUCT IN HIS ABSENCE OF A PORTION OF HIS
TRIAL ON AN INDICTMENT CHARGING A CAPITAL OFFENSE. 

        I 

IN FEBRUARY 1969 AN INDICTMENT WAS RETURNED IN THE CIRCUIT COURT OF
ST. LOUIS, MISSOURI, CHARGING PETITIONER AND TWO OTHERS WITH THE
FORCIBLE RAPE OF PETITIONER'S WIFE.  FOLLOWING SEVERANCE OF
PETITIONER'S CASE FROM THOSE OF THE OTHER DEFENDANTS AND A CONTINUANCE,
ON MAY 27 HIS COUNSEL FILED A MOTION FOR A CONTINUANCE UNTIL SEPTEMBER,
IN ORDER THAT PETITIONER MIGHT BE EXAMINED AND RECEIVE PSYCHIATRIC
TREATMENT.  TREATMENT HAD BEEN SUGGESTED BY A PSYCHIATRIST WHO HAD
EXAMINED PETITIONER AT HIS COUNSEL'S REQUEST AND WHOSE REPORT WAS
ATTACHED TO THE MOTION.  /1/ ON THE SAME DATE RESPONDENT, THROUGH THE
ASSISTANT CIRCUIT ATTORNEY, FILED A DOCUMENT STATING THAT THE STATE DID
NOT OPPOSE THE MOTION FOR A PSYCHIATRIC EXAMINATION.  APPARENTLY NO
ACTION WAS TAKEN ON THE MOTION, AND PETITIONER'S CASE WAS CONTINUED
UNTIL JUNE 23, AT WHICH TIME HIS COUNSEL OBJECTED TO PROCEEDING WITH
THE TRIAL ON THE GROUND THAT HE HAD UNDERSTOOD THE CASE WOULD BE
CONTINUED UNTIL SEPTEMBER AND CONSEQUENTLY WAS NOT PREPARED.  HE
OBJECTED FURTHER "FOR THE REASON THAT THE DEFENDANT IS NOT A PERSON OF
SOUND MIND AND SHOULD HAVE A FURTHER PSYCHIATRIC EXAMINATION BEFORE THE
CASE SHOULD BE FORCED TO TRIAL."  APP.  19.  THE TRIAL JUDGE NOTED THAT
THE MOTION FOR A CONTINUANCE WAS NOT IN PROPER FORM AND THAT, ALTHOUGH
PETITIONER'S COUNSEL HAD AGREED TO FILE ANOTHER, HE HAD FAILED TO DO
SO, AND HE OVERRULED HIS OBJECTIONS AND DIRECTED THAT THE CASE PROCEED
TO TRIAL. 

ON JUNE 24 A JURY WAS EMPANELED, AND THE PROSECUTION CALLED
PETITIONER'S WIFE AS ITS FIRST WITNESS.  SHE TESTIFIED THAT PETITIONER
PARTICIPATED WITH FOUR OF HIS ACQUAINTANCES IN FORCIBLY RAPING HER AND
SUBJECTING HER TO OTHER BIZARRE ABUSE AND INDIGNITIES, BUT THAT SHE HAD
RESUMED LIVING WITH HIM AFTER THE INCIDENT ON THE ADVICE OF
PETITIONER'S PSYCHIATRIST AND SO THAT THEIR CHILDREN WOULD BE TAKEN
CARE OF.  ON CROSS-EXAMINATION, SHE TESTIFIED THAT SHE HAD TOLD
PETITIONER'S ATTORNEY OF HER BELIEF THAT HER HUSBAND WAS SICK AND
NEEDED PSYCHIATRIC CARE AND THAT FOR THESE REASONS SHE HAD SIGNED A
STATEMENT DISAVOWING A DESIRE TO PROSECUTE.  SHE RELATED THAT ON
SEVERAL OCCASIONS WHEN PETITIONER DID NOT "GET HIS WAY OR (WAS) WORRIED
ABOUT SOMETHING," HE WOULD ROLL DOWN THE STAIRS.  SHE COULD EXPLAIN
SUCH BEHAVIOR ONLY BY RELATING "WHAT THEY TOLD HIM MANY TIMES AT CITY
HOSPITAL, THAT IS SOMETHING HE DOES UPON HISSEL (SIC)."  ID., AT 47. 
HOWEVER, SHE ALSO STATED THAT SHE WAS NOT CONVINCED PETITIONER WAS SICK
AFTER TALKING TO HIS PSYCHIATRIST, AND THAT SHE HAD CHANGED HER MIND
ABOUT NOT WANTING TO PROSECUTE PETITIONER BECAUSE, AS SHE TESTIFIED, HE
HAD "TRIED TO CHOKE ME, TRIED TO KILL ME" ON THE SUNDAY EVENING PRIOR
TO TRIAL.  ID., AT 52. 

THE PROSECUTION CALLED THREE MORE WITNESSES, BUT DID NOT CONCLUDE
ITS CASE, BEFORE ADJOURNMENT ON JUNE 24.  THE FOLLOWING MORNING,
PETITIONER DID NOT APPEAR.  WHEN THE TRIAL JUDGE DIRECTED COUNSEL TO
PROCEED, PETITIONER'S ATTORNEY MOVED FOR A MISTRIAL "IN VIEW OF THE
FACT THAT THE DEFENDANT, I AM INFORMED, SHOT HIMSELF THIS MORNING." 
APP. 63.  THE TRIAL JUDGE DENIED THE MOTION, STATING THAT HE HAD
ALREADY DECIDED THE MATTER WOULD PROCEED FOR TRIAL, AND WHEN
PETITIONER'S COUNSEL COMPLAINED OF THE DIFFICULTY OF PROCEEDING WITHOUT
A CLIENT, THE TRIAL JUDGE REPLIED THAT THE DIFFICULTY WAS BROUGHT ABOUT
BY PETITIONER, WHO WAS ON BOND AND HAD A RESPONSIBILITY TO BE PRESENT. 
THE PROSECUTION THEN CALLED FOUR MORE WITNESSES AND AFTER PRODUCING
PROOF OF A PRIOR CONVICTION, /2/ RESTED ITS CASE.  PETITIONER'S "MOTION
FOR VERDICT OF ACQUITTAL," INCLUDING IN EFFECT A RENEWAL OF THE MOTION
FOR A MISTRIAL, WAS DENIED, AND HIS COUNSEL STATED THAT HE HAD "NO
EVIDENCE TO PRODUCE AT THIS TIME UNDER THE CIRCUMSTANCES."  ID., AT
64.  THE JURY RETURNED A VERDICT OF GUILTY, AND ON JULY 21, 1969,
PETITIONER, WHO HAD BEEN IN THE HOSPITAL FOR THREE WEEKS RECOVERING
FROM A BULLET WOUND IN THE ABDOMEN, APPEARED, AND THE TRIAL COURT FIXED
THE PENALTY AT LIFE IMPRISONMENT. 

PETITIONER FILED A MOTION FOR A NEW TRIAL, THE BURDEN OF WHICH WAS
THAT THE TRIAL COURT HAD ERRED IN PROCEEDING WITH THE TRIAL WHEN NO
EVIDENCE HAD BEEN PRODUCED THAT HIS ABSENCE FROM THE TRIAL WAS
VOLUNTARY.  A HEARING WAS HELD BEFORE THE JUDGE WHO HAD PRESIDED AT
TRIAL.  PETITIONER TESTIFIED THAT ON JUNE 25 HE HAD GONE TO HIS
BROTHER'S HOUSE AND THAT HE REMEMBERED NOTHING CONCERNING THE SHOOTING
EXCEPT THAT HE FELT A BURNING PAIN IN HIS STOMACH AND LATER WOKE UP IN
THE HOSPITAL.  HE TESTIFIED HE DID NOT REMEMBER TALKING TO ANYONE AT
THE HOSPITAL.  THE STATE PRESENTED EVIDENCE THAT UPON ADMISSION TO THE
HOSPITAL PETITIONER STATED THAT HE HAD SHOT HIMSELF BECAUSE OF "SOME
PROBLEM WITH THE LAW,'" ID., AT 90, AND THAT HE HAD TOLD A POLICEMAN HE
HAD SHOT HIMSELF BECAUSE "HE WAS SUPPOSED TO GO TO COURT FOR RAPE, AND
HE DIDN'T DO IT; HE RATHER BE (SIC) DEAD THAN TO GO TO TRIAL FOR
SOMETHING HE DIDN'T DO."  ID., AT 97.  THE TRIAL JUDGE DENIED THE
MOTION.  STATING THAT ON THE MORNING OF PETITIONER'S FAILURE TO APPEAR
HE HAD RECEIVED INFORMATION ON THE TELEPHONE WHICH WAS CHECKED WITH THE
HOSPITAL, THE JUDGE CONCLUDED THAT PETITIONER HAD THE BURDEN OF SHOWING
THAT HIS ABSENCE WAS NOT VOLUNTARY AND FOUND ON THE BASIS OF THE
EVIDENCE THAT HIS ABSENCE "'WAS DUE TO HIS OWN VOLUNTARY ACT IN
SHOOTING HIMSELF; DONE FOR THE VERY PURPOSE OF AVOIDING TRIAL.'"  ID.,
AT 103. 

THE MISSOURI SUPREME COURT AFFIRMED, ACCPEPTING THE TRIAL COURT'S
FINDING, IN RULING ON PETITIONER'S MOTION FOR A NEW TRIAL, THAT HIS
ABSENCE WAS VOLUNTARY, /3/ AND HOLDING THAT THERE WAS "NO LOGICAL
BASIS" FOR POSITING A DIFFERENT RULE WITH RESPECT TO WAIVER OF THE
RIGHT TO BE PRESENT IN CAPITAL CASES /4/ THAN THAT WHICH APPLIES IN
FELONG CASES GENERALLY.  462 S.W.2D 677, 683 - 684.  THE MISSOURI
SUPREME COURT ALSO HELD THAT THE DENIAL OF PETITIONER'S MOTION FOR A
CONTINUANCE OF THE TRIAL IN ORDER TO PROCURE FURTHER PSYCHIATRIC
EVALUATION WAS NOT AN ABUSE OF DISCRETION, NOTING THAT PETITIONER DID
NOT CONTEND THAT HE LACKED THE MENTAL CAPACITY TO PROCEED WITH THE
TRIAL. 

IN APRIL 1971 PETITIONER FILED A MOTION TO VACATE THE JUDGMENT OF
CONVICTION AND SENTENCE IN THE COURT WHERE SENTENCE HAD BEEN IMPOSED,
PURSUANT TO MISSOURI SUPREME COURT RULE 27.26.  /5/ HE ALLEGED THAT HIS
RIGHTS UNDER MO. REV. STAT. 552.020(2) (1969) /6/ AND HIS
CONSTITUTIONAL RIGHTS HAD BEEN VIOLATED BY THE FAILURE TO ORDER A
PSYCHIATRIC EXAMINATION PRIOR TO TRIAL AND BY CONDUCTING THE TRIAL TO
CONCLUSION IN HIS ABSENCE.  PETITIONER ALSO ASSERTED THAT HE HAD BEEN
DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, A CLAIM WHICH IS NOT BEFORE
US. 

IN JULY 1971 A HEARING WAS HELD ON THE MOTION; PETITIONER CALLED TWO
PSYCHIATRISTS AS WITNESSES.  THE PSYCHIATRIST WHO HAD EXAMINED
PETITIONER PRIOR TO HIS TRIAL TESTIFIED THAT IN HIS OPINION THERE WAS
REASONABLE CAUSE TO BELIEVE THAT A PERSON WHO ATTEMPTED TO COMMIT
SUICIDE IN THE MIDST OF A TRIAL MIGHT NOT BE MENTALLY COMPETENT TO
UNDERSTAND THE PROCEEDINGS AGAINST HIM.  ANOTHER PSYCHIATRIST, WHOSE
DUTIES INCLUDED THE EXAMINATION OF ACCUSED PERSONS UNDER MO. REV. STAT.
C. 522, TESTIFIED THAT IN HIS OPINION A MAN WHO WAS CHARGED WITH RAPING
HIS WIFE AND ATTEMPTED SUICIDE DURING HIS TRIAL WAS IN NEED OF A
PSYCHIATRIC EVALUATION TO FIND OUT HIS MENTAL CONDITION, AND THAT THERE
SHOULD BE AN EVALUATION TO DETERMINE WHETHER THE PERSON WAS COMPETENT
TO ASSIST IN HIS OWN DEFENSE AND WHETHER HE WAS "MALINGERING OR DID IT
INTENTIONALLY OR IF IT WAS DUE TO A TRUE PSYCHIATRIC DISORDER."  APP. 
156.  THE SAME PSYCHIATRIST STATED THAT HE HAD EXAMINED PETITIONER AT
CITY HOSPITAL IN 1965 AND HAD FOUND THAT HE HAD PSYCHIATRIC PROBLEMS
AND WAS IN NEED OF CARE.  PETITIONER TOOK THE STAND, REPEATING HIS
PREVIOUS TESTIMONY WITH RESPECT TO THE SHOOTING. 

IN JUNE 1972 THE SENTENCING JUDGE DENIED PETITOIONER'S RULE 27.26
MOTION, AND THE MISSOURI COURT OF APPEALS AFFIRMED.  THE COURT OF
APPEALS CONCLUDED THAT THE PROVISIONS FOR PSYCHIATRIC EXAMINATIONS AND
HEARINGS UNDER MO. REV. STAT. 552.020 (1969) COMPORTED WITH THE
REQUIREMENTS OF PATE V. ROBINSON, 383 U.S. 375 (1966), AND THAT THE
TEST OF INCOMPETENCE TO STAND TRIAL WAS THAT STATED IN DUSKY V. UNITED
STATES, 362 U.S. 402 (1960).  /7/  IT REASONED THAT IT WAS NECESSARY TO
EXAMINE THE INDICIA OF PETITIONER'S INCOMPETENCE "AT THREE DIFFERENT
TIMES--BEFORE THE TRIAL, DURING THE TRIAL AFTER THE SUICIDE ATTEMPT,
AND AT THE TIME OF THE MOTION FOR NEW TRIAL."  498 S.W.2D 838, 842. 

AS TO THE SITUATION BEFORE TRIAL, THE COURT HELD THAT THE
PSYCHIATRIC REPORT ATTACHED TO PETITIONER'S MOTION FOR A CONTINUANCE
DID NOT RAISE A REASONABLE DOUBT OF HIS FITNESS TO PROCEED.  TURNING TO
THE SECOND TIME PERIOD, "DURING THE TRIAL AFTER THE SUICIDE ATTEMPT,"
THE COURT HELD THAT PATE V. ROBINSON, SURPA, WHICH INVOLVED A
COMPETENCE HEARING RATHER THAN A COMPETENCE EXAMINATION FOLLOWED BY A
HEARING, DID NOT REQUIRE THAT THE EXAMINATION AND HEARING BE HELD
DURING THE TRIAL RATHER THAN IMMEDIATELY THEREAFTER.  WITH REGARD TO
THE PERIOD AFTER THE TRIAL, AND ACCEPTING PETITIONER'S CONTENTION THAT
HIS WAS A "BONA FIDE ATTEMPT AT SUICIDE," THE COURT WAS OF THE VIEW
THAT THE LEGAL SIGNIFICANCE OF THE ATTEMPT UNDER ROBINSON SHOULD BE
EVALUATED WITHOUT RESORT TO THE PSYCHIATRIC TESTIMONY PRESENTED AT THE
RULE 27.26 HEARING, WHICH WAS NOT BEFORE THE TRIAL JUDGE.  IT HELD THAT
PETITIONER'S SUICIDE ATTEMPT DID NOT CREATE A REASONABLE DOUBT OF HIS
COMPETENCE AS A MATTER OF LAW, THAT PETITIONER HAD FAILED TO
DEMONSTRATE THE INADEQUACY OF THE PROCEDURES EMPLOYED FOR PROTECTING
HIS RIGHTS, AND THAT THE FINDING OF THE TRIAL COURT WAS NOT CLEARLY
ERRONEOUS.  /8/ 

FINALLY, THE MISSOURI COURT OF APPEALS REJECTED PETITIONER'S CLAIM
THAT HE WAS DEPRIVED OF DUE PROCESS OF LAW BY THE CONDUCT OF A PORTION
OF HIS TRIAL IN HIS ABSENCE; IT NOTED THAT THE STATE SUPREME COURT HAD
UPHELD A FINDING OF VOLUNTARY ABSENCE ON PETITIONER'S DIRECT APPEAL AND
CONCLUDED THAT THE PSYCHIATRISTS' TESTIMONY AT THE RULE 27.26 HEARING
DID NOT MEET THE BURDEN OF PROOF PLACED ON PETITIONER.  "AGAIN WE
CANNOT HOLD THE TRIAL COURT'S FINDING TO BE CLEARLY ERRONEOUS."  498
S.W.2D,AT 843.  WE GRANTED CERTIORARI, AND WE NOW REVERSE. 

        II 

IT HAS LONG BEEN ACCEPTED THAT A PERSON WHOSE MENTAL CONDITION IS
SUCH THAT HE LACKS THE CAPACITY TO UNDERSTAND THE NATURE AND OBJECT OF
THE PROCEEDINGS AGAINST HIM TO DEFENSE MAY NOT BE SUBJECTED TO A
TRIAL.  THUS, BLACKSTONE WROTE THAT ONE WHO BECAME "MAD" AFTER THE
COMMISSION OF AN OFFENSE SHOULD NOT BE ARRAIGNED FOR IT "BECAUSE HE IS
NOT ABLE TO PLEAD TO IT WITH THAT ADVICE AND CAUTION THAT HE OUGHT." 
SIMILARLY, IF HE BECAME "MAD" AFTER PLEADING, HE SHOULD NOT BE TRIED,
"FOR HOW CAN HE MAKE HIS DEFENCE?"  4 W. BLACKSTONE* COMMENTARIES 24. 
SEE YOUTSEY V. UNITED STATES, 97 F. 937, 940 - 946 (CA6 1899).  SOME
HAVE VIEWED THE COMMON-LAW PROHIBITION "AS A BY-PRODUCT OF THE BAN
AGAINST TRIALS IN ABSENTIA; PRESENT IN THE COURTROOM, IS IN REALITY
AFFORDED NO OPPORTUNITY TO DEFEND HIMSELF."  FOOTE, A COMMENT ON PRE
TRIAL COMMITMENT OF CRIMINAL DEFENDANTS, 108 U.PA.L.REV.  832, 834
(1960).  SEE THOMAS V. CUNNINGHAM, 313 F.2D 934, 938 (CA4 1963).  FOR
OUR PURPOSES, IT SUFFICES TO NOTE THAT THE PROHIBITION IS FUNDAMENTAL
TO AN ADVERSARY SYSTEM OF JUSTICE.  SEE GENERALLY NOTE, INCOMPETENCY TO
STAND TRIAL, 81 HARV.L.REV.  455, 457 - 459 (1967).  ACCORDINGLY, AS TO
FEDERAL CASES, WE HAVE APPROVED A TEST OF INCOMPETENCE WHICH SEEKS TO
ASCERTAIN WHETHER A CRIMINAL DEFENDANT "'HAS SUFFICIENT PRESENT ABILITY
TO CONSULT WITH HIS LAWYER WITH A REASONABLE DEGREE OF RATIONAL
UNDERSTANDING--AND WHETHER HE HAS A RATIONAL AS WELL AS FACTUAL
UNDERSTANDING OF THE PROCEEDINGS AGAINST HIM.'"  DUSKY V. UNITED
STATES, 362 U.S.,AT 402. 

IN PATE V. ROBINSON, 383 U.S. 375 (1966), WE HELD THAT THE FAILURE
TO OBSERVE PROCEDURES ADEQUATE TO PROTECT A DEFENDANT'S RIGHT NOT TO BE
TRIED OR CONVICTED WHILE INCOMPETENT TO STAND TRIAL DEPRIVES HIM OF HIS
DUE PROCESS RIGHT TO A FAIR TRIAL.  ALTHOUGH IN ROBINSON WE NOTED THAT
ILLINOIS "JEALOUSLY GUARDED) THIS RIGHT," ID., AT 385, WE HELD THAT THE
FAILURE OF THE STATE COURTS TO INVOKE THE STATUTORY PROCEDURES DEPRIVED
ROBINSON OF THE INQUIRY INTO THE ISSUE OF HIS COMPETENCE TO STAND TRIAL
TO WHICH, ON THE FACTS OF THE CASE, WE CONCLUDED HE WAS
CONSTITUTIONALLY ENTITLED.  THE COURT DID NOT HOLD THAT THE PROCEDURE
PRESCRIBED BY ILL. REV. STAT., C. 38, 104 - 2 (1963), WAS
CONSTITUTIONALLY MANDATED, ALTHOUGH CENTRAL TO ITS DISCUSSION WAS THE
CONCLUSION THAT THE STATUTORY PROCEDURE, IF FOLLOWED, WAS
CONSTITUTIONALLY ADEQUATE.  SEE, E.G., UNITED STATES V. KNOHL, 379 F.2D
427, 434 - 435 (CA2), CERT. DENIED, 389 U.S. 973 (1967); UNITED STATES
EX REL. EVANS V. LAVALLEE, 446 F.2D 782, 785 - 786 (CA2 1071), CERT.
DENIED, 404 U.S. 1020 (1972).  NOR DID THE COURT PRESCRIBE A GENERAL
STANDARD WITH RESPECT TO THE NATURE OR QUANTUM OF EVIDENCE NECESSARY TO
REQUIRE RESORT TO AN ADEQUATE PROCEDURE.  /9/ RATHER, IT NOTED THAT
UNDER THE ILLINOIS STATUTE A HEARING WAS REQUIRED WHERE THE EVIDENCE
RAISED A "'BONA FIDE DOUBT'" AS TO A DEFENDANT'S COMPETENCE, AND THE
COURT CONCLUDED "THAT THE EVIDENCE INTRODUCED ON ROBINSON'S BEHALF
ENTITLED HIM TO A HEARING ON THIS ISSUE."  383 U.S.,AT 385.  SEE UNITED
STATES V. MARSHALL, 458 F.2D 446, 450 (CA2 1972).     AS WAS TRUE OF
ILLINOIS IN ROBINSON, MISSOURI'S STATUTORY SCHEME "JEALOUSLY GUARDS" A
DEFENDANT'S RIGHT TO A FAIR TRIAL.  MISSOURI REV. STAT. 552,020(1)
(1969) PROVIDES:  "NO PERSON WHO AS A RESULT OF MENTAL DISEASE OR
DEFECT LACKS CAPACITY TO UNDERSTAND THE PROCEEDINGS AGAINST HIM OR TO
ASSIST IN HIS OWN DEFENSE SHALL BE TRIED, CONVICTED OR SENTENCED FOR
THE COMMISSION OF AN OFFENSE SO LONG AS THE INCAPACITY ENDURES." 
OWN MOTION OR UPON MOTION FILED BY THE STATE OR BY OR ON BEHALF OF THE
ACCUSED," ORDER A PSYCHIATRIC EXAMINATION WHENEVER HE "HAS REASONABLE
CAUSE TO BELIEVE THAT THE ACCUSED HAS A MENTAL DISEASE OR DEFECT
EXCLUDING FITNESS TO PROCEED."  SECTION 552.020(3) PRESCRIBES THE
CONTENTS OF A REPORT OF THE PSYCHIATRIC EXAMINATION, AND 552.030(6)
REQUIRES THE COURT TO HOLD A HEARING IF THE OPINION RELATIVE TO FITNESS
TO PROCEED WHICH IS REQUIRED TO BE INCLUDED IN THE REPORT IS
CONTESTED.  IN ADDITION, THE TRIAL COURT MAY CONDUCT A HEARING ON ITS
OWN MOTION.  SUCH A PROCEDURE IS, ON ITS FACE, CONSTITUTIONALLY
ADEQUATE TO PROTECT A DEFENDANT'S RIGHT NOT TO BE TRIED WHILE LEGALLY
INCOMPETENT.  OUR TASK IS TO DETERMINE WHETHER THE PROCEEDINGS IN THIS
CASE WERE CONSISTENT WITH PETITIONER'S RIGHT TO A FAIR TRIAL . 

AT THE OUTSET WE ARE MET BY RESPONDENT'S ARGUMENT THAT THE COURT IS
BOUND BY "LIMITATION PLACED ON PROCEEDINGS UNDER" MISSOURI SUPREME
COURT RULE 27.26.  BRIEF FOR RESPONDENT 23.  SPECIFICALLY, RESPONDENT
NOTES THAT UNDER RULE 27.26(F) PETITIONER HAD "THE BURDEN OF
ESTABLISHING HIS GROUNDS FOR RELIEF BY A PREPONDERANCE OF THE
EVIDENCE," AND THAT THE APPELLATE-REVIEW FUNCTION OF THE MISSOURI COURT
OF APPEALS WAS LIMITED BY RULE 27.26(J) "TO A DETERMINATION OF WHETHER
THE FINDINGS, CONCLUSIONS AND JUDGMENT OF THE TRIAL COURT (WERE)
CLEARLY ERRONEOUS."  IT URGES THAT THE RULE WAS "DESIGNED . . . TO
PROVIDE A VALUABLE POST-CONVICTION REMEDY AND NOT TO PROVIDE ANOTHER
DIRECT APPEAL . . .," AND EXPRESSES CONCERN THAT "THE STATE-FEDERAL
RELATIONSHIP . . . REMAIN IN PROPER BALANCE."  BRIEF FOR RESPONDENT
22. 

WE SHARE RESPONDENT'S CONCERN FOR THIS NECESSARY BALANCE, AND WE DO
NOT QUESTION THE STATE'S POWER, IN POST-CONVICTION PROCEEDINGS, TO
REALLOCATE THE RESPECTIVE BURDENS OF THE INDIVIDUAL AND THE STATE AND
TO DELIMIT THE SCOPE OF STATE APPELLATE REVIEW.  CF. HAWK V. OLSON, 326
U.S. 271, 279 (1945); CONNER V. WINGO, 429 F.2D 630, 637 - 639 (CA6
1970).  AT THE SAME TIME WE NOTE THAT WHILE PROCEEDINGS UNDER THE RULE
"ORDINARILY CANNOT BE USED AS A SUBSTITUTE FOR DIRECT APPEAL INVOLVING
MERE TRIAL ERRORS OR AS A SUBSTITUTE FOR A SECOND APPEAL," NEVERTHELESS
"TRIAL ERRORS AFFECTING CONSTITUTIONAL RIGHTS MAY BE RAISED EVEN THOUGH
THE ERROR COULD HAVE BEEN RAISED ON APPEAL."  MO. SUP. CT. RULE
27.26(B)(3). 

IN THE PRESENT CASE THERE IS NO DISPUTE AS TO THE EVIDENCE POSSIBLY
RELEVANT TO PETITIONER'S MENTAL CONDITION THAT WAS BEFORE THE TRIAL
COURT PRIOR TO TRIAL AND THEREAFTER.  RATHER, THE DISPUTE CONCERNS THE
INFERENCES THAT WERE TO BE DRAWN FROM THE UNDISPUTED EVIDENCE AND
WHETHER, IN LIGHT OF WHAT WAS THEN KNOWN, THE FAILURE TO MAKE FURTHER
INQUIRY INTO PETITIONER'S COMPETENCE TO STAND TRIAL, DENIED HIM A FAIR
TRIAL.  IN SUCH CIRCUMSTANCES WE BELIEVE IT IS "INCUMBENT UPON US TO
ANALYZE THE FACTS IN ORDER THAT THE APPROPRIATE ENFORCEMENT OF THE
FEDERAL RIGHT MAY BE ASSURED."  NORRIS V. ALABAMA, 294 U.S. 587, 590
(1935).  /10/ "WHEN THE CORRECTIVE PROCESS IS PROVIDED BY THE STATE BUT
ERROR, IN RELATION TO THE FEDERAL QUESTION OF CONSTITUTIONAL VIOLATION,
CREEPS INTO THE RECORD, WE HAVE THE RESPONSIBILITY TO REVIEW THE STATE
PROCEEDINGS."  HAWK V. OLSON, SUPRA, AT 276. 

        III 

THE SENTENCING JUDGE AND THE MISSOURI COURT OF APPEALS CONCLUDED
THAT THE PSYCHIATRIC EVALUATION OF PETITIONER ATTACHED TO HIS PRETRIAL
MOTION FOR A CONTINUANCE DID NOT CONTAIN SUFFICIENT INDICIA OF
INCOMPETENCE TO STAND TRIAL TO REQUIRE FURTHER INQUIRY.  BOTH COURTS
MENTIONED ASPECTS OF THE REPORT SUGGESTING COMPETENCE, SUCH AS THE
IMPRESSIONS THAT PETITIONER DID NOT HAVE "ANY DELUSIONS, ILLIUSIONS,
HALLUCINATIONS . . .," WAS "WELL ORIENTED IN ALL SPHERES," AND "WAS
ABLE, WITHOUT TROUBLE, TO ANSWER QUESTIONS TESTING JUDGEMENT," BUT
NEITHER COURT MENTIONED THE CONTRARY DATA.  THE REPORT ALSO SHOWED THAT
PETITIONER, ALTHOUGH COOPERATIVE IN THE EXAMINATION, "HAD DIFFICULTY IN
PARTICIPATING WELL," "HAD A DIFFICULT TIME RELATING," AND THAT HE "WAS
MARKEDLY CIRCUMSTANTIAL AND IRRELEVANT IN HIS SPEECH."  IN ADDITION,
NEITHER COURT FELT THAT PETITIONER'S EPISODIC IRREATIONAL ACTS
DESCRIBED IN THE REPORT OR THE PSYCHIATRIST'S DIAGNOSES OF "(B)
ORDERLINE MENTAL DEFICIENCY" AND "(CHRONIC (ANXIETY REACTION WITH
DEPRESSION" CREATED A SUFFICIENT DOUBT OF COMPETENCE TO REQUIRE FURTHER
INQUIRY.  /11/ 

IT DOES NOT APPEAR THAT THE EXAMINING PSYCHIATRIST WAS ASKED TO
ADDRESS HIMSELF TO MEDICAL FACTS BEARING SPECIFICALLY ON THE ISSUE OF
PETITIONER'S COMPETENCE TO STAND TRIAL, AS DISTINGUISHED FROM HIS
MENTAL AND EMOTIONAL CONDITION GENERALLY.  THUS, IT IS NOT SURPRISING
THAT BEFORE THIS COURT THE DISPUTE CENTERS ON THE INFERENCES THAT COULD
OR SHOULD PROPERLY HAVE BEEN DRAWN FROM THE REPORT.  EVEN WHERE THE
ISSUE IS IN FOCUS WE HAVE RECOGNIZED "THE UNCERTAINTY OF DIAGNOSIS IN
THIS FIELD AND THE TENTATIVENESS OF PROFESSIONAL JUDGMENT."  GREENWOOD
V. UNITED STATES, 350 U.S. 366, 375 (1956).  HERE THE INQUIRY IS
RENDERED MORE DIFFICULT BY THE FACT THAT A DEFENDANT'S MENTAL CONDITION
MAY BE RELEVANT TO MORE THAN ONE LEGAL ISSUE, EACH GOVERNED BY DISTINCT
RULES REFLECTING QUITE DIFFERENT POLICIES.  SEE JACKSON V. INDIANA, 406
U.S. 715, 739 (1972); PATE V. ROBINSON, 383 U.S.,AT 388 - 389 (HARLAN,
J., DISSENTING); WEIHOFEN, THE DEFINITION OF MENTAL ILLNESS, 21 OHIO
ST.L.J. 1 (1960). 

LIKE THE REPORT ITSELF, THE MOTION FOR A CONTINUANCE DID NOT CLEARLY
SUGGEST THAT PETITIONER'S COMPETENCE TO STAND TRIAL WAS THE QUESTION
SOUGHT TO BE RESOLVED.  WHILE WE HAVE EXPRESSED DOUBT THAT THE RIGHT TO
FURTHER INQUIRY UPON THE QUESTION CAN BE WAIVED, SEE PATE V. ROBINSON,
383 U.S.,AT 384, IT IS NEVERTHELESS TRUE THAT JUDGES MUST DEPEND TO
SOME EXTENT ON COUNSEL TO BRING ISSUES INTO FOCUS.  PETITIONER'S
SOMEWHAT INARTFULLY DRAWN MOTION FOR A CONTINUANCE PROBABLY FELL SHORT
OF APPROPRIATE ASSISTANCE TO THE TRIAL COURT IN THAT REGARD.  HOWEVER,
WE ARE CONSTRAINED TO DISAGREE WITH THE SENTENCING JUDGE THAT COUNSEL'S
PRETRIAL CONTENTION THAT "THE DEFENDANT IS NOT A PERSON OF SOUND MIND
AND SHOULD HAVE A FURTHER PSYCHIATRIC EXAMINATION BEFORE THE CASE
SHOULD BE FORCED TO TRIAL," DID NOT RAISE THE ISSUE OF PETITIONER'S
COMPETENCE TO STAND TRIAL.  /12/ THIS STATEMENT ALSO MAY HAVE TENDED TO
BLUR THE ASPECT OF PETITIONER'S MENTAL CONDITION WHICH WOULD BEAR ON
HIS CRIMINAL RESPONSIBILITY AND THAT WHICH WOULD BEAR ON HIS COMPETENCE
TO STAND TRIAL.  HOWEVER, AT THAT STAGE, AND WITH THE OBVIOUS
ADVANTAGES OF HINDSIGHT, IT SEEMS TO US THAT IT WOULD HAVE BEEN, AT THE
VERY LEAST, THE BETTER PRACTICE TO ORDER AN IMMEDIATE EXAMINATION UNDER
MO. REV. CODE 552.020(2) (1969).  /13/ IT IS UNNECESSARY FOR US TO
DECIDE WHETHER SUCH EXAMINATION WAS CONSTITUTIONALLY REQUIRED ON THE
BASIS OF WHAT WAS THEN KNOWN TO THE TRIAL COURT SINCE IN OUR VIEW THE
QUESTION WAS SETTLED BY LATER EVENTS. 

        IV 

TURNING TO THE SITUATION AT PETITIONER'S TRIAL, THE STATE COURTS
VIEWED THE EVIDENCE AS FAILING TO SHOW THAT DURING TRIAL PETITIONER HAD
ACTED IN A MANNER THAT WOULD CAUSE THE TRIAL COURT TO DOUBT HIS
COMPETENCE.  THE TESTIMONY OF PETITIONER'S WIFE, SOME OF WHICH REPEATED
AND CONFIRMED INFORMATION CONTAINED IN THE PSYCHIATRIC EVALUATION
ATTACHED TO PETITIONER'S MOTION FOR A CONTINUANCE, WAS GIVEN LITTLE
WEIGHT.  /14/ FINALLY, THE SENTENCING JUDGE, RELYING ON HIS FINDING ON
PETITIONER'S MOTION FOR A NEW TRIAL AND ALTHOUGH STATING "THAT IT DOES
NOT TAKE A PSYCHIATRIST TO KNOW THAT SUCH A MAN HAS A PROBLEM AND
INDICATES POOR JUDGMENT," APP. 203, CONCLUDED THAT THE "FACT THAT MR.
DROPE SHOT HIMSELF TO AVOID TRIAL SUGGESTS VERY STRONGLY AN AWARENESS
OF WHAT WAS GOING ON."  ID., AT 208.  THE MISSOURI COURT OF APPEALS,
ACCEPTING ARGUENDO PETITIONER'S CONTENTION THAT HIS WAS "A BONA FIDE
ATTEMPT AT SUICIDE,"  REFUSED TO CONCLUDE "THAT AS A MATTER OF LAW AN
ATTEMPT AT SUICIDE CREATES A REASONABLE DOUBT AS TO THE MOVANT'S
COMPETENCY TO STAND TRIAL."  ID., AT 222. 

NOTWITHSTANDING THE DIFFICULTY OF MAKING EVALUATIONS OF THE KIND
REQUIRED IN THESE CIRCUMSTANCES, WE CONCLUDE THAT THE RECORD REVEALS A
FAILURE TO GIVE PROPER WEIGHT TO THE INFORMATION SUGGESTING
INCOMPETENCE WHICH CAME TO THE LIGHT DURING TRIAL.  THIS IS
PARTICULARLY SO WHEN VIEWED IN THE CONTEXT OF THE EVENTS SURROUNDING
PETITIONER'S SUICIDE ATTEMPT AND AGAINST THE BACKGROUND OF THE PRETRIAL
SHOWING.  ALTHOUGH A DEFENDANT'S DEMEANOR DURING TRIAL MAY BE SUCH AS
TO OBVIATE "THE NEED FOR EXTENSIVE RELIANCE ON PSYCHIATRIC PREDICTION
CONCERNING HIS CAPABILITIE CAPACILITIES," NOTE, 81 HAR.L.REV.,AT 469,
WE CONCLUDED IN PATE V. ROBINSON, 383 U.S.,AT 385 - 386, THAT "THIS
REASONING OFFERS NO JUSTIFICATION FOR IGNORING THE UNCONTRADICTED
TESTIMONY OF . . . (A) HISTORY OF PRONOUNCED IRRATIONAL BEHAVIOR."  WE
DO NOT MEAN TO SUGGEST THAT THE INDICIA OF SUCH BEHAVIOR IN THIS CASE
APPROXIMATED THOSE IN ROBINSON, BUT WE BELIEVE THE MISSOURI COURTS
FAILED TO CONSIDER AND GIVE PROPER WEIGHT TO THE RECORD EVIDENCE.  TOO
LITTLE WIEGHT WAS GIVEN TO THE TESTIMONY OF PETITIONER'S WIFE THAT ON
THE SUNDAY PRIOR TO TRIAL HE TRIED TO CHOKE HER TO DEATH.  FOR A MAN
WHOSE FATE DEPENDED IN LARGE MEASURE ON THE INDULGENCE OF HIS WIFE, WHO
HAD HESITATED ABOUT PRESSING THE PROSECUTION, THIS HARDLY COULD BE
REGARDED AS RATIONAL CONDUCT.  /15/ MOREOVER, IN CONSIDERING THE
INDICIA OF PETITIONER'S INCOMPETENCE SEPARATELY, THE STATE COURTS GAVE
INSUFFICIENT ATTENTION TO THE AGGREGATE OF THOSE INDICIA IN APPLYING
THE OBJECTIVE STANDARD OF MO. REV. STAT. 552.020(2).  WE NEED NOT
ADDRESS THE COURT OF APPEALS' CONCLUSION THAT AN ATTEMPT TO COMMIT
SUICIDE DOES NOT CREATE A REAONSABLE DOUBT OF COMPETENCE TO STAND TRIAL
AS A MATTER OF LAW.  AS WAS TRUE OF THE PSYCHIATRIC EVALUATION,
PETITIONER'S ATTEMPT TO COMMIT SUICIDE "DID NOT STAND ALONE."  MOORE V.
UNITED STATES, 464 F.2D 663, 666 (CA9 1972).  WE CONCLUDE THAT WHEN
CONSIDERED TOGETHER WITH THE INFORMATION AVAILABLE PRIOR TO TRIAL AND
THE TESTIMONY OF PETITIONER'S WIFE AT TRIAL, THE INFORMATION CONCERNING
PETITIONER'S SUICIDE ATTEMPT CREATED A SUFFICIENT DOUBT OF HIS
COMPETENCE TO STAND TRIAL TO REQUIRE FURTHER INQUIRY ON THE QUESTION. 

THE IMPORT OF OUR DECISION IN PATE V. ROBINSON IS THAT EVIDENCE OF A
DEFENDANT'S IRRATIONAL BEHAVIOR, HIS DEMEANOR AT TRIAL, AND ANY PRIOR
MEDICAL OPINION ON COMPETENCE TO STAND TRIAL ARE ALL RELEVANT IN
DETERMINING WHETHER FURTHER INQUIRY IS REQUIRED, BUT THAT EVEN ONE OF
THESE FACTORS STANDING ALONE MAY, IN SOME CIRCUMSTANCES, BE
SUFFICIENT.  THERE ARE, OF COURSE, NO FIXED OR IMMUTABLE SIGNS WHICH
INVARIABLY INDICATE THE NEED FOR FURTHER INQUIRY TO DETERMINE FITNESS
TO PROCEED; THE QUESTION IS OFTEN A DIFFICULT ONE IN WHICH A WIDE RANGE
OF MANIFESTATIONS AND SUBTLE NUANCES ARE IMPLICATED.  THAT THEY ARE
DIFFICULT TO EVALUATE IS SUGGESTED BY THE VARYING OPINIONS TRAINED
PSYCHIATRISTS CAN ENTERTAIN ON THE SAME FACTS. 

HERE, THE EVIDENCE OF IRRATIONAL BEHAVIOR PRIOR TO TRIAL WAS WEAKER
THAN IN ROBINSON, BUT THERE WAS NO OPINION EVIDENCE AS TO PETITIONER'S
COMPETENCE TO STAND TRIAL.  SEE N. 9, SUPRA.  MOREOVER, ROBINSON WAS
PRESENT THROUGHOUT HIS TRIAL; PETITIONER WAS ABSENT FOR A CRUCIAL
PORTION OF HIS TRIAL.  PETITIONER'S ABSENCE BEARS ON THE ANALYSIS IN
TWO WAYS:  FIRST, IT WAS DUE TO AN ACT WHICH SUGGESTS A RATHER
SUBSTANTIAL DEGREE OF MENTAL INSTABILITY CONTEMPORANEOUS
CONTEMPORANEOUS WITH THE TRIAL, SEE PATE V. ROBINSON, 383 U.S.,AT 389
(HARLAN, J., DISSENTING); /16/ SECOND, AS A RESULT OF PETITIONER'S
ABSENCE THE TRIAL JUDGE AND DEFENSE COUNSEL WERE NO LONGER ABLE TO
OBSERVE HIM IN THE CONTEXT OF THE TRIAL AND TO GAUGE FROM HIS DEMEANOR
WHETHER HE WAS ABLE TO COOPERATE WITH HIS ATTORNEY AND TO UNDERSTAND
THE NATURE AND OBJECT OF THE PROCEEDINGS AGAINST HIM. 

EVEN WHEN A DEFENDANT IS COMPETENT AT THE COMMENCEMENT OF HIS TRIAL,
A TRIAL COURT MUST ALWAYS BE ALERT TO CIRCUMSTANCES SUGGESTING A CHANGE
THAT WOULD RENDER THE ACCUSED UNABLE TO MEET THE STANDARDS OF
COMPETENCE TO STAND TRIAL.  WHATEVER TRIAL.  WHATEVER THE RELATIONSHIP
BETWEEN MENTAL ILLNESS AND INCOMPETENCE TO STAND TRIAL, IN THIS CASE
THE BEARING OF THE FORMER ON THE LATTER WAS SUFFICIENTLY LIKELY THAT,
IN LIGHT OF THE EVIDENCE OF PETITIONER'S BEHAVIOR INCLUDING HIS SUICIDE
ATTEMPT, AND THERE BEING NO OPPORTUNITY WITHOUT HIS PRESENCE TO
EVALUATE THAT BEARING IN FACT, THE CORRECT COURSE WAS TO SUSPEND THE
TRIAL UNTIL SUCH AN EVALUATION COULD BE MADE.  /17/ THAT THIS MIGHT
HAVE ABORTED THE TRIAL IS A HARD REALITY, BUT WE CANNOT FAIL TO NOTE
THAT SUCH A RESULT MIGHT HAVE BEEN AVOIDED BY PROMPT PSYCHIATRIC
EXAMINATION BEFORE TRIAL, WHEN IT WAS SOUGHT BY PETITIONER. 

        V 

OUR RESOLUTION OF THE FIRST ISSUE RAISED BY PETITIONER MAKES IT
UNNECESSARY TO DECIDE WHETHER, AS HE CONTENDS, IT WAS CONSTITUTIONALLY
IMPERMISSIBLE TO CONDUCT THE REMAINDER OF HIS TRIAL ON A CAPITAL
OFFENSE IN HIS ENFORCED ABSENCE FROM A SELF-INFLICTED WOUND.  SEE DIAZ
V. UNITED STATES, 223 U.S. 442, 445 (1912).  HOWEVER, EVEN ASSUMING THE
RIGHT TO BE PRESENT WAS ONE THAT COULD BE WAIVED, WHAT WE HAVE ALREADY
SAID MAKES IT CLEAR THAT THERE WAS AN INSUFFICIENT INQUIRY TO AFFORD A
BASIS FOR DECIDING THE ISSUE OF WAIVER.  CF. WESTBROOK V. ARIZONA, 384
U.S. 150 (1966); UNITED STATES V. SILVA, 418 F.2D 328 (CA2 1969). 
THE MISSOURI COURT OF APPEALS CONCLUDED THAT, HAD FURTHER INQUIRY INTO
PETITIONER'S COMPETENCE TO STAND TRIAL BEEN CONSTITUTIONALLY MANDATED
INTHIS CASE, IT WOULD HAVE BEEN PERMISSIBLE TO DEFER IT UNTIL THE TRIAL
HAD BEEN COMPLETED.  SUCH A PROCEDURE MAY HAVE ADVANTAGES, AT LEAST
WHERE THE DEFENDANT IS PRESENT AT THE TRIAL AND THE APPROPRIATE INQUIRY
IS IMPLEMENTED WITH DISPATCH.  SEE NOTE, 81 HAR.L.REV.,AT 469; HANSFORD
V. UNITED STATES, 127 U.S.APP.D.C. 359, 360, 384 F.2D 311, 312 (1966)
(REHEARING EN BANC DENIED) (STATEMENT OF LEVENTHAL, J.); JACKSON V.
INDIANA, 406 U.S.,AT 741.  HOWEVER, BECAUSE OF PETITIONER'S ABSENCE
DURING A CRITICAL STAGE OF HIS TRIAL, NEITHER THE JUDGE NOR COUNSEL WAS
ABLE TO OBSERVE HIM, AND THE HEARING ON HIS MOTION FOR A NEW TRIAL,
HELD APPROXIMATELY THREE MONTHS AFTER THE TRIAL, WAS NOT INFORMED BY AN
INQUIRY INTO EITHER HIS COMPETENCE TO STAND TRIAL OR HIS CAPACITY
EFFECTIVELY TO WAIVE HIS RIGHT TO BE PRESENT. 

THE QUESTION REMAINS WHETHER PETITIONER'S DUE PROCESS RIGHTS WOULD
BE ADEQUATELY PROTECTED BY REMANDING THE CASE NOW FOR A PSYCHIATRIC
EXAMINATION AIMED AT ESTABLISHING WHETHER PETITIONER WAS IN FACT
COMPETENT TO STAND TRIAL IN 1969.  GIVEN THE INHERENT DIFFICULTIES OF
SUCH A NUNC PRO TUNC DETERMINATION UNDER THE MOST FAVORABLE
CIRCUMSTANCES, SEE PATE V. ROBINSON, 383 U.S.,AT 386 - 387; DUSKY V.
UNITED STATES, 362 U.S. 402, WE CANNOT CONCLUDE THAT SUCH A PROCEDURE
WOULD BE ADEQUATE HERE.  CF. CONNER V. WINGO, 429 F.2D,AT 639 - 640. 
THE STATE IS FREE TO RETRY PETITIONER, ASSUMING, OF COURSE, THAT AT THE
TIME OF SUCH TRIAL HE IS COMPETENT TO BE TRIED. 

THE JUDGMENT IS REVERSED, AND THE CAUSE IS REMANDED FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION. 

    REVERSED AND REMANDED. 

/1/ THE MOTION RECITES:  "COMES NOW THE DEFENDANT, JAMES E. DROPE,
AND STATES TO THE COURT THAT HE HAS HAD A PSYCHIATRIC EXAMINATION MADE
BY DR. JOSEPH F. SHUMAN, M.D., A COPY OF WHICH REPORT IS ATTACHED
HERETO. 

"DEFENDANT MOVES THE COURT TO CONTINUE HIS CASE UNTIL SEPTEMBER, 1969
IN ORDER THAT HE MIGHT RECEIVE AN EXAMINATION, EVALUATION AND
PSYCHIATRIC TREATMENT, AS SUGGESTED BY DR. SHUMAN, AT THE MALCOMB BLISS
HOSPITAL IN THE CITY OF ST. LOUIS, MISSOURI."  APP.  7. 

THE REPORT, IN THE FORM OF A LETTER TO PETITIONER'S ATTORNEY, STATES
THAT THE PSYCHIATRIST EXAMINED PETITIONER ON FEBRUARY 20, 1969.  IN A
"MARKEDLY AGITATED AND UPSET," NOTING THAT HE "APPEARED TO BE
COOPERATIVE IN THIS EXAMINATION, BUT HE HAD DIFFICULTY IN PARTICIPATING
WELL."  THE REPORT CONTINUES:  "THE PATIENT HAD A DIFFICULT TIME
RELATING.  HE WAS MARKEDLY CIRCUMSTANTIAL AND IRRELEVANT IN HIS SPEECH
. . . . THERE WAS NO SIGN AS TO THE PRESENCE OF ANY DELUSIONS,
ILLUSIONS, HALLUCINATIONS, OBSESSIONS, IDEAS OF REFERENCE, COMPULSIONS
OR PHOBIAS AT THIS TIME. 

"IN A SIMPLE IQ EXAM MR. DROPE WAS ABLE TO ACHIEVE A SCORE IN THE
LOW NORMA RANGE . . .. MR. DROPE WAS WELL ORIENTED IN ALL SPHERES. 
WITH MUCH DIFFICULTY HE WAS ABLE TO EXPLAIN A FEW ABSTRACTIONS . . ..
HE WAS ABLE, WITHOUT TROUBLE, TO ANSWER QUESTIONS TESTING JUDGMENT.  HE
HAD MUCH DIFFICULTY EVEN DOING THE SIMPLE COUNTING AND CALCULATION
PROBLEMS."  THE REPORT THEN RECOUNTS THE DETAILS OF THE CONVERSATION
BETWEEN THE PSYCHIATRIST AND PETITIONER'S WIFE.  THE LATTER ADMITTED
THAT SHE HAD LEFT PETITIONER ON A NUMBER OF OCCASIONS BECAUSE OF HIS
SEXUAL PERVERSIONS AND DESCRIBED THE "STRANGE BEHAVIOR"  OF PETITIONER,
INCLUDING FALLING DOWN FLIGHTS OF STAIRS, AS AN ATTEMPT TO GAIN
SYMPATHY FROM HER.  IN A SECTION ENTITLED "IMPRESSION," THE REPORT
STATES THAT PETITIONER HAD "ALWAYS LED A MARGINAL EXISTENCE,"  THAT HE
HAD A "HISTORY OF ANTI-SOCIAL CONDUCT," BUT THAT THERE WERE NO "STRONG
SIGNS OF PSYCHOSIS AT THIS TIME."  IT CONCLUDES THAT PETITIONER
"CERTAINLY NEEDS THE AID OF A PSYCHIATRIST," AND THAT HE "IS A VERY
NEUROTIC INDIVIDUAL WHO IS ALSO DEPRESSED AND PERHAPS HE IS DEPRESSED
FOR MOST OF THE TIME," AND IT OFFERS AS DIAGNOSES:  "(1) SOCIOPATHIC
PERSONALITY DISORDER, SEXUAL PERVERSION.  (2) BORDERLINE MENTAL
DEFICIENCY.  (3) CHRONIC ANXIETY REACTION WITH DEPRESSION."  ID., AT 11
- 12. 

/2/ PETITIONER WAS TRIED AS A SECOND OFFENDER UNDER MO. REV. STAT.
556.280 (1969), HAVING BEEN CONVICTED IN 1958 OF SECOND-DEGREE BURGLARY
AND "STEALING." 

/3/ AS TO THE SITUATION AT TRIAL, THE MISSOURI SUPREME COURT STATED:
"WE DISAGREE WITH DEFENDANT'S CONTENTION THAT THERE IS 'NO EVIDENCE
UPON THE RECORD' THAT HE VOLUNTARILY ABSENTED HIMSELF.  THE COURT MADE
SUCH A DETERMINATION BEFORE PROCEEDING WITH THE TRIAL, ALTHOUGH THE
BASIS FOR THAT DETERMINATION IS NOT FULLY DISCLOSED.  HOWEVER, WHEN
DEFENDANT IS FREE ON BOND, AND HE DOES NOT APPEAR AT THE APPOINTED
TIME, IT IS PRESUMED THAT THE ABSENCE IS VOLUNTARY UNTIL ESTABLISHED
OTHERWISE."  462 S.W.2D 677, 681 (1971). 

/4/ AT THE TIME OF PETITIONER'S TRIAL, RAPE WAS PUNISHABLE BY DEATH
UNDER MO. REV. STAT. 559.260 (1969), AND RESPONDENT HAD NOT WAIVED THE
DEATH PENALTY. 

/5/ A PETITION FOR A WRIT OF HABEAS CORPUS PREVIOUSLY FILED IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI HAD
BEEN DISMISSED WITHOUT PREJUDICE ON APRIL 1, 1971, FOR FAILURE TO
EXHAUST AVAILABLE STATE REMEDIES.  SEE 28 U.S.C. 2254(B) - 2254(C). 

/6/ SUBDIVISION 2 OF 552.020 PROVIDES IN PERTINENT PART:  "WHENEVER
ANY JUDGE OR MAGISTRATE HAS REASONABLE CAUSE TO BELIEVE THAT THE
ACCUSED HAS A MENTAL DISEASE OR DEFECT EXLUCING FITNESS TO PROCEED HE
SHALL, UPON HIS OWN MOTION ORUPON MOTION FILED BY THE STATE OR BY OR ON
BEHALF OF THE ACCUSED, BY ORDER OF RECORD, APPOINT ONE OR MORE PRIVATE
PHYSICIANS TO MAKE A PSYCHIATRIC EXAMINATION OF THE ACCUSED OR SHALL
DIRECT THE SUPERINTENDENT OF A FACILITY OF THE DIVISION OF MENTAL
DISEASES TO HAVE THE ACCUSED SO EXAMINED BY ONE OR MORE PHYSICIANS WHOM
THE SUPERINTENDENT SHALL DESIGNATE."  SUBDIVISION 3 DELINEATES THE
REQUIREMENTS FOR REPORTS OF PSYCHIATRIC EXAMINATIONS, AND SUBDIVISION 6
REQUIRES THE COURT TO HOLD A HEARING IF THE OPINION RELATIVE TO FITNESS
TO PROCEED WHICH IS REQUIRED TO BE INCLUDED IN THE REPORT IS
CONTESTED. 

/7/ "(THE 'TEST MUST BE WHETHER HE HAS SUFFICIENT PRESENT ABILITY TO
CONSULT WITH HIS LAYER WITH A REAONSABLE DEGREE OF RATIONAL
UNDERSTANDING--AND WHETHER HE HAS A RATIONAL AS WELL AS FACTUAL
UNDERSTANDING OF THE PROCEEDINGS AGAINST HIM.'"  SEE ALSO MO. REV.
STAT. 552.020(1) (1969). 

/8/ UNDER MISSOURI SUPREME COURT RULE 27.26(F) (1969), THE "PRISONER
HAS THE BURDEN OF ESTABLISHING HIS GROUNDS FOR RELIEF BY A
PREPONDERANCE OF THE EVIDENCE."  APPELLATE REVIEW IS LIMITED UNDER RULE
27.26(J) "TO A DETERMINATION OF WHETHER THE FINDINGS, CONCLUSIONS AND
JUDGMENT OF THE TRIAL COURT ARE CLEARLY ERRONEOUS." 

/9/ IN DISCUSSING THE EVIDENCE ADDUCED AT ROBINSON'S TRIAL, THE
COURT DID, HOWEVER, INDICATE THAT A HISTORY OF IRRATIONAL BEHAVIOR IS A
RELEVANT FACTOR WHICH, ON THE RECORE BEFORE IT, WAS SUFFICIENT TO
REQUIRE FURTHER INQUIRY NOTWITHSTANDING ROBINSON'S DEMEANOR AT TRIAL
AND THE STIPULATED OPINION OF A PSYCHIATRIST THAT ROBINSON KNEW THE
NATURE OF THE CHARGES AGAINST HIM AND COULD COOPERATE WITH COUNSEL WHEN
THE PSYCHIATRIST EXAMINED HIM TWO OR THREE MONTHS BEFORE.  SEE.  INFRA,
AT 180 - 181. 

/10/ "BUT 'ISSUE OF FACT' IS A COAT OF MANY COLORS.  IT DOES NOT
COVER A CONCLUSION DRAWN FROM UNCONTROVERTED HAPPENINGS, WHEN THAT
CONCLUSION INCORPORATES STANDARDS OF CONDUCT OR CRITERIA FOR JUDGMENT
WHICH IN THEMSELVES ARE DECISIVE OF CONSTITUTIONAL RIGHTS.  SUCH
STANDARDS AND CRITERIA, MEASURED AGAINST THE REQUIREMENTS DRAWN FROM
CONSTITUTIONAL PROVISIONS, AND THEIR PROPER APPLICATIONS, ARE ISSUES
FOR THIS COURT'S ADJUDICATION . . .. ESPECIALLY IN CASES ARISING UNDER
THE DUE PROCESS CLAUSE IS IT IMPORTANT TO DISTINGUISH BETWEEN ISSUES OF
FACT THAT ARE HERE FORECLOSED AND ISSUES WHICH, THOUGH CAST IN THE FORM
OF DETERMINATIONS OF FACT, ARE THE VERY ISSUES TO REVIEW WHICH THIS
COURT SITS."  WATTS V. INDIANA, 338 U.S. 49, 51 (1949) (OPINION OF
FRANKFURTER, J.).  SEE ALSO CULOMBE V. CONNECTICUT, 367 U.S. 568, 605
(1961) (OPINION OF FRANKFURTER, J.). 

/11/ SEE N. 1, SUPRA.  THE COURT OF APPEALS DETERMINED THAT THE
OTHER DIAGNOSIS OFFERED, "(SOCIOPATHIC PERSONALITY DISORDER, SEXUAL
PERVERSION," WAS EXCLUDED AS A "MENTAL DISEASE OR DEFECT" UNDER
MISSOURI LAW.  SEE MO. REV. STAT. 552.010 (1969). 

/12/ IN A COLLOQUY WITH THE TRIAL JUDGE, PETITIONER'S COUNSEL NOTED
THAT THE EXAMINATION AND EVALUATION "COULD BE DONE DURING THE SUMMER
MONTHS AND BE READY FOR TRIAL OR ELSE THE EXAMINATION WOULD ELIMINATE
TRIAL BY SEPTEMBER."  APP.  17.  (EMPHASIS ADDED.) 

/13/ THE SENTENCING JUDGE OBSERVED THAT "MOTIONS FOR PSYCHIATRIC
EXAMINATIONS HAVE OFTEN BEEN MADE MERELY FOR THE PURPOSE OF DELAY," AND
"ESTIMATED THAT ALMOST SEVENTY-FIVE PERCENT OF THOSE SENT FOR
PSYCHIATRIC EXAMINATION ARE RETURNED MENTALLY COMPETENT."  APP.  202.
ALTHOUGH WE DO NOT, OF COURSE, SUGGEST THAT COURTS MUST ACCEPT WITHOUT
QUESTION A LAWYER'S REPRESENTATIONS CONCERNING THE COMPETENCE OF HIS
CLIENT, SEE UNITED STATES EX REL. RIZZI V. FOLLETTE, 367 F.2D 559, 561
(CA2 1966), AN EXPRESSED DOUBT IN THAT REGARD BY ONE WITH "THE CLOSEST
CONTACT WITH THE DEFENDANT," PATE V. ROBINSON, 383 U.S. 375, 391 (1966)
(HARLAN, J., DISSENTING), IS UNQUESTIONABLY A FACTOR WHICH SHOULD BE
CONSIDERED.  MOREOVER, RESOLUTION OF THE ISSUE OF COMPETENCE TO STAND
TRIAL AT AN EARLY DATE BEST SERVES BOTH THE INTERESTS OF FAIRNESS, SEE
PEYTON V. ROWE, 391 U.S. 54, 62 (1968), AND OF SOUND JUDICIAL
ADMINISTRATION.  SEE PANEL ON RECOGNIZING AND DETERMINING MENTAL
COMPETENCY TO STAND TRIAL--INSANITY AS A DEFENSE, IN INSTITUTES ON
SENTENCING, 37 F.R.D. 111, 155, 161 (1964).  REALIZATION OF THOSE FACTS
MAY HAVE PROMPTED THE PRACTICE, NOTED BY THE SENTENCING COURT, "OF THE
CIRCUIT ATTORNEY AT THE TIME TO CONSENT IN ALL CASES TO A PSYCHIATRIC
EXAMINATION WHETHER WITH OR WITHOUT MERIT AND WITHOUT LOOKING INTO THE
MATTER FURTHER."  APP.  206. 

/14/ SEE N. 1, SUPRA.  THE SENTENCING COURT NOTED:  "SHE DID TESTIFY
IN ANSWER TO THE QUESTION 'AND AT THAT TIME DIDN'T YOU TELL ME THAT YOU
FELT YOUR HUSBAND WAS SICK AND NEEDED PSYCHIATRIC CARE?'  THE ANSWER
"YES".  THERE WAS ALSO SOME EVIDENCE OF DISPUTES AND TROUBLE
ACCOMPANIED BY SOME PHYSICAL FORCE BETWEEN HUSBAND AND WIFE BUT NOT TO
THE EXTENT TO INDICATE INABILITY TO UNDERSTAND THE PROCEEDINGS.  THERE
WAS NO RECITATION OF FACTS UPON WHICH A LAYMAN COULD BASE THE OPINION
THAT THE DEFENDANT WAS INSANE EXCEPT THE TESTIMONY PERHAPS THAT HE
ROLLED DOWN THE STEPS BUT THIS OCCURED ONLY TWO OR THREE TIMES OVER A
PERIOD OF EIGHT OR NINE OR TEN YEARS."  APP.  201.  THE COURT OF
APPEALS DEALT WITH HER TESTIMONY ONLY INSOFAR AS IT REPEATED
INFORMATION IN THE PSYCHIATRIC EVALUATION.  IT CONCLUDED THAT HER
FEELINGS THAT PETITIONER HAD MENTAL PROBLEMS "BORE ON HIS SEXUAL
PERVERSIONS--NOT HIS COMPETENCY," AND THAT THE STAIRS EPISODES
"DEMONSTRATED) PIQUE MORE THAN ANYTHING."  498 S.W.2D,AT 842. 

/15/ IT APPEARS THAT UNDER MO. REV. STAT. 546.260 (1969)
PETITIONER'S WIFE COULD NOT BE COMPELLED TO TESTIFY AGAINST HIM.  SEE
STATE V. DUNBAR, 360 MO. 788, 230 S.W.2D 845 (1950).  SIMILARLY,
NEITHER COURT MENTIONED MRS. DROPE'S TESTIMONY CONCERNING PETITIONER'S
CONSULTATIONS AT CITY HOSPITAL.  AT THE RULE 27.26 HEARING, IT WILL BE
RECALLED, A PSYCHIATRIST TESTIFIED THAT HE HAD EXAMINED PETITIONER AT
CITY HOSPITAL IN 1965 AND HAD DETERMINED THAT HE WAS IN NEED OF
PSYCHIATRIC CARE. 

/16/ WE ASSUME, AS DID THE MISSOURI COURT OF APPEALS, THAT
PETITIONER'S WAS A "BONA FIDE" SUICIDE ATTEMPT, RATHER THAN, AS
RESPONDENT CONTENDS, MALINGERING.  IN THAT REGARD, THE HEARSAY
INFORMATION IN THE POSSESSION OF THE TRIAL JUDGE WHEN HE DENIED THE
MOTION FOR A MISTRIAL SUGGESTED AN INTENT ON THE PART OF PETITIONER TO
KILL HIMSELF, AND A SELF-INFLICTED WOUND NEAR VITAL ORGANS DOES NOT
SUGGEST MALINGERING.  OF COURSE WE ALSO RECOGNIZE THAT "THE EMPIRICAL
RELATIONSHIP BETWEEN MENTAL ILLNESS AND SUICIDE" OR SUICIDE ATTEMPTS IS
UNCERTAIN AND THAT A SUICIDE ATTEMPT NEED NOT ALWAYS SIGNAL "AN
INABILITY TO PERCEIVE REALITY ACCURATELY, TO REASON LOGICALLY AND TO
MAKE PLANS AND CARRY THEM OUT IN AN ORGANIZED FASHION."  GREENBERG,
INVOLUNTARY PSYCHIATRIC COMMITMENTS TO PREVENT SUICIDE, 49
N.Y.U.L.REV.  227, 234, 236 (1964).  SEE ALSO POKORNY, MYTHS ABOUT
SUICIDE, IN SUICIDAL BEHAVIORS 64 - 65 (H. RESNICK ED. 1968). 

/17/ IN REACHING THIS CONCLUSION WE HAVE NOT RELIED ON THE TESTIMONY
OF THE PSYCHIATRIST AT THE RULE 27.26 HEARING, WHICH, WE AGREE WITH THE
MISSOURI COURT OF APPEALS, IS NOT RELEVANT TO THE QUESTION BEFORE US. 

THOMAS C. WALSH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS CHARLES A. WEISS. 

NEIL MACFARLANE, ASSISTANT ATTORNEY GENERAL OF MISSOURI, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE JOHN C. DANFORTH,
ATTORNEY GENERAL, AND DAVID ROBARDS, ASSISTANT ATTORNEY GENERAL. 
..END :



















ICC V. OREGON PACIFIC INDUSTIRES, INC. 420 U.S. 184 


       INTERSTATE COMMERCE COMMISSION V. OREGON PACIFIC INDUSTRIES,

           INC., ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF OREGON

        NO. 73 - 12.10.  ARGUED NOVEMBER 20, 1974--DECIDED FEBRUARY

           19, 1975; 365 F.SUPP.  609, REVERSED. 


    SERVICE ORDER NO. 1134, PROMULGATED BY THE INTERSTATE COMMERCE

  COMMISION (ICC) WITHOUT NOTICE OR HEARING PURSUANT TO ITS

  EMERGENCY POWERS UNDER 1(15) OF THE INTERSTATE COMMERCE ACT,

  WHICH LIMITED THE HOLDING TIME OF LUMBER CARS AT RECONSIGNMENT

  POINTS TO FIVE WORKING DAYS AND SUBJECTED THE SHIPPER HOLDING THE

  CAR AT SUCH POINTS FOR MORE THAN THAT PERIOD TO THE SUM OF THE

  RATES FROM ORIGIN, TO HOLD POINT, TO DESTINATION, HELD WITHIN THE

  ICC'S POWER UNDER 1(15) TO AVOID UNDUE DETENTION OF FREIGHT CARS

USED AS PLACES OF STORAGE, DURING AN EMERGENCY FREIGHT CAR

  SHORTAGE THAT THE ICC, EXERCISING ITS EXPERTISE, FOUND TO EXIST. 

  PP. 187 - 191. 

     DOUGLAS, J., WROTE THE OPINION FOR A UNANIMOUS COURT.  POWELL,

  J., FILED A CONCURRING OPINION, POST, P. 191. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. CHIEF
JUSTICE BURGER. 

THIS IS AN APPEAL FROM A JUDGMENT OF A THREE-JUDGE DISTRICT COURT,
28 U.S.C. 1253, WHICH HELD INVALID AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION PROMULGATING A CAR SERVICE ORDER /1/ UNDER 1(15) OF THE
INTERSTATE COMMERCE ACT, AS AMENED, 41 STAT. 476, 49 U.S.C. 1 (15). 
/2/  OREGON PACIFIC INDUSTRIES V. UNITED STATES, 365 F.SUPP.  609
(ORE.  1973). 

LUMBER IS OFTEN MOVED TO MARKET ON A WHOLESALERS' SALE-IN-TRANSIT
SCHEDULE.  CARS ARE SENT TO HOLD POINTS, WHERE IN TIME RECONSIGNMENT
ORDERS ARE RECEIVED FOR SHIPMENT TO CUSTOMERS OF WHOLESALERS.  THE
TARIFFS ALLOW INDEFINITE HOLDING, SUBJECT TO DEMURRAGE CHARGES FOR
DETENTION IN EXCESS OF 24 HOURS, BUT THE COMMISSION FOUND THAT THESE
DEMURRAGE CHARGES NEVER DISCOURAGED SHIPPERS FROM LENGTHY HOLDING OF
CARS.  IN 1973 THERE WAS, ACCORDING TO THE COMMISSION, A TRANSPORTATION
"EMERGENCY" WHICH REQUIRED "IMMEDIATE ACTION TO PROMOTE CAR SERVICE IN
THE INTEREST OF THE PUBLIC AND COMMERCE OF THE PEOPLE."  ACCORDINGLY,
ON MAY 8, 1973, THE COMMISSION, SUA SPONTE, WITHOUT NOTICE AND HEARING,
ENTERED ITS SERVICE ORDER NO. 1132 WHICH LIMITED THE HOLD TIME AT
RECONSIGNMENT POINTS TO FIVE DAYS (120 HOURS), EXCLUSIVE OF SATURDAYS,
SUNDAYS, AND HOLDIAYS.  IF THE LUMBER CARS WERE HELD AT RECONSIGNMENT
POINTS LONGER THAN FIVE WORKING DAYS, THE RECONSIGNMENT PRIVILEGE WOULD
BE LOST AND THE SHIPPERS WOULD BE SUBJECT TO LOCAL OR JOINT TARIFF
RATES FROM THE POINT OR ORIGIN TO THE HOLD POINT, AND FROM THE HOLD
POINT TO THE ULTIMATE DESTINATION. 

THE DISTRICT COURT HELD THAT THERE WERE FOUR CATEGORIES OF EMERGENCY
ACTION WHICH THE COMMISSION COULD TAKE UNDER 1(15): 

     "(A) TO SUSPEND . . . RULES, REGULATIONS, OR PRACTICES THEN

  ESTABLISHED WITH RESPECT TO CAR SERVICE . . ., 

     "(B) TO MAKE . . . DIRECTIONS WITH RESPECT TO CAR SERVICE . .
.

  DURING SUCH EMERGENCY AS . . . WILL BEST PROMOTE . . . SERVICE .

  . . (AND PROVIDE COMPENSATION AS BETWEEN CARRIERS). 

     "(C) TO REQUIRE . . . COMMON USE OF TERMINALS, . . . AND 

     "(D) TO GIVE DIRECTIONS FOR PREFERENCE OR PRIORITY IN
TRANSPORTATION . . .." 

THE DISTRICT COURT HELD THAT THE COMMISSION'S AUTHORITY UNDER (B),
(C), OR (D) WOULD NOT SUPPORT THE ORDER IN THIS CASE AND THAT THE ORDER
COULD BE SUSTAINED, IF AT ALL, ONLY UNDER (A).  IT CONCLUDED THAT (A)
WAS NOT ADEQUATE SINCE THE CHALLENGED ORDER DID NOT "SUSPEND" ANY RULE
OR REGULATION "WITH RESPECT TO CAR SERVICE."  IT REASONED THAT THE
ORDER "CONDONES THE PRACTICE OF SALES-IN-TRANSIT" FOR AN INDEFINITE
TIME BUT REQUIRES SHIPPERS EMPLOYING THE PRACTICE TO PAY A HIGHER RATE
TO THE CARRIERS THAN THE DEMURRAGE RATE UNDER THE PRIOR ORDER.  THAT
WAS, IN ITS VIEW, A RATE ORDER HAVING NO PLACE UNDER 1(15), WHICH GIVES
THE COMMISSION POWER TO ACT SUA SPONTE IN AN "EMERGENCY" IN A NARROW
GROUP OF CASES.  365 F.SUPP.,AT 612. 

THE DISTRICT COURT POINTED OUT THAT 1(10) DEFINES "CAR SERVICE" AS
"THE USE . . . MOVEMENT . . . AND RETURN OF . . . CARS . . . USED IN
THE TRANSPORTATION OF PROPERTY . . . BY ANY CARRIER BY RAILROAD"; AND
IT EMPHASIZED THAT "'CAR SERVICE' CONNOTES THE USE TO WHICH THE
VEHICLES OF TRANSPORTATION ARE PUT (BY A CARRIER); NOT THE
TRANSPORTATION SERVICE RENDERED BY MEANS OF THEM," 365 F.SUPP.,AT 611,
PEORIA & P.U.R. CO. V. UNITED STATES, 263 U.S. 528, 533.  WE EMPHASIZED
IN UNITED STATES V. ALLEGHENY-LUDLUM STEEL CORP., 406 U.S. 742, 743,
THAT CAR SERVICE RULES DEALT WITH THE MANAGEMENT OF "A SINGLE COMMON
POOL" OF CARS "USED BY ALL ROADS," AND THAT THEY PERTAIN TO RAILROAD
USE OF CARS.  SINCE "RAILROAD USE" INVOLVES SHIPPERS, WE THINK THE
DISTRICT COURT READ 1(15) TOO NARROWLY. 

WE NOTED IN ALLEGHENY-LUDLUM THAT 1(15) TRACES BACK TO THE ESCH CAR
SERVICE ACT OF 1917, 40 STAT. 101.  /3/ 406 U.S.,AT 744.  THE USE OF
FREIGHT CARS AS WAREHOUSES--THE PRACTICE WHICH PROMPTED THE COMMISSION
TO ACT IN THE PRESENT CASE--WAS ONE OF THE EVILS AT WHICH THE ORIGINAL
CAR SERVICE ACT WAS AIMED. 

MR. ESCH, SPONSOR OF THE LEGISLATION, SAID: /4/ 

"ANOTHER CAUSE OF CAR SHORTAGE IS THE HOLDING OF CARS ON THE PART OF
SHIPPERS THEMSELVES, USING THE CAR AS A SPECIES OF WAREHOUSE, INSTEAD
OF PROMPTLY UNLOADING IT.  I THINK THAT IS QUITE A UNIVERSAL EVIL
THROUGHOUT THE UNITED STATES, BUT IT IS DUE IN SOME MEASURE TO THE LACK
OF WAREHOUSE AND ELEVATOR FACILITIES AT THE TERMINALS. 

        .  .  .  . 

     "MR. MADDEN.  IF THE GENTLEMAN WILL YIELD TO ME, I WOULD LIKE

  TO ASK HIM ONE QUESTION.  I WOULD LIKE TO ASK THE GENTLEMAN IF

  THERE IS ANY PROVISION IN THIS BILL TO COMPEL RAILROAD COMPANIES

  TO PAY DEMURRAGE TO THE SHIPPERS IN CASE THEY FAILED TO FURNISH

  THE CARS WITHIN THE TIME THEY WERE REQUIRED FOR THE SHIPMENT OF

  THE GOODS? 

     "MR. ESCH.  THE GENTLEMAN MEANS RECIPROCAL DEMURRAGE? 

     "MR. MADDEN.  THIS GIVES THE INTERSTATE COMMERCE COMMISSION
THE

  RIGHT TO AUTHORIZE THEM TO CHARGE CERTAIN DEMURRAGE OF THE

  SHIPPER IF HE FAILS TO UNLOAD THE CAR.  OUTGHT NOT THE SHIPPER TO

  HAVE A CLAIM AGAINST THE RAILROAD COMPANY IN CASE THEY FAIL TO

  FURNISH THE CARS? 

     "MR. ESCH.  I HAVE NO DOUBT UNDER THE PROPOSED AMENDMENT, IN

  CASE OF EMERGENCY, THE COMMISSION COULD MAKE ANY RULES OR

  REGULATIONS THAT THEY SAW FIT THAT WOULD PROMOTE THE TRANSIT OF

  FREIGHT, BECAUSE THE POWER IS VERY BROAD.  AND NECESSARILY SO." 

AND THE REPORTS MAKE CLEAR THAT ONE AIM OF THE ACT WAS "TO THE END
THAT THE PUBLIC MAY RECEIVE THE BEST POSSIBLE SERVICE IN
TRANSPORTATION."  /5/ CAR SHORTAGES, IT WAS FOUND, RESULTED IN SHORT
SUPPLIES OF BASIC FOODS IN THE MARKETS "WITH ATTENDANT HIGH PRICES." 
/6/ THE INTERESTS OF SHIPPERS AND CONSUMERS--NOT THE CARRIERS ALONE--
WERE VERY MUCH IN THE FOREFRONT. 

AS WE HAVE NOTED, PEORIA & P. U. R. CO., SUPRA, EMPHASIZED THAT THE
CAR SERVICE AUTHORITY EXTENDS TO THE "USE" OF CARS AND NOT TO A
"TRANSPORTATION SERVICE," BUT THERE THE ISSUE WAS WHETHER ONE CARRIER
WAS BOUND TO PERFORM SWITCHING SERVICES FOR ANOTHER CARRIER.  THE COURT
HELD THAT IT WAS NOT; POWER OVER THE "USE OF CARS, HOWEVER, WAS LEFT
UNDISTURBED.  IN THIS CONNECTION IT IS OBVIOUS THAT A SHIPPER BY RAIL
DOES NOT "RENT" A VEHICLE AS DO SHIPPERS BY TRUCK.  THE CARS ARE ALL
"USED" UNDER THE MANAGEMENT OF CARRIERS, WHO NATURALLY RECEIVE
DIRECTIONS OR REQUESTS FROM SHIPPERS.  THE CARS CANNOT BE USED
EFFICIENTLY TO SERVE THE NEEDS OF SHIPPERS AND CONSUMERS IF THEY ARE
USED NOT AS CARRIERS BUT AS WAREHOUSES. 

IN TURNER LUMBER CO. V. CHICAGO, M. & ST. P. R. CO., 271 U.S. 259,
DEMURRAGE TO PREVENT "UNDUE DETENTION" OF CARS "LOADED WITH LUMBER HELD
FOR RECONSIGNMENT" WAS FIXED BY THE COMMISSION WITHOUT NOTICE.  THE
COURT, SPEAKING THROUGH MR. JUSTICE BRANDEIS, UPHELD THECHARGE SAYING:
"ALL DEMURRAGE CHARGES HAVE A DOUBLE PURPOSE.  ONE IS TO SECURE
COMPENSATION FOR THE USE OF THE CAR AND OF THE TRACK WHICH IT
OCCUPIES.  THE OTHER IS TO PROMOTE CAR EFFICIENCY BY PROVIDING A
DETERRENT AGAINST UNDUE DETENTION."  ID., AT 262.  IN IVERSEN V. UNITED
STATES, 63 F.SUPP.  1001, AFF'D PER CURIAM, 327 U.S. 767, THE
COMMISSION ENTERED A CAR SERVICE ORDER LIMITING RECONSIGNMENT
PREIVILEGES TO A SPECIFIC NUMBER OF DAYS AND PROVIDING THAT CARS HELD
IN EXCESS OF THAT TIME WOULD BE SUBJECT TO THE SUM OF THE LOCAL RATES
FROM ORIGIN TO THE SUM OF THE LOCAL RATES FROM ORIGIN TO RECONSIGNMENT
POINT TO DESTINATION.  /7/ IT WAS HELD THAT THE DEMURRAGE ITEM WAS A
"RULE" RESPECTING "CAR SERVICE" WITHIN THE MEANING OF 1(15).  THE
HOLDING IN IVERSEN WAS IMPLICIT IN THE HOLDING IN TURNER.  /8/ 

THE DISTRICT COURT SUGGESTED THAT THE SERVICE ORDER WAS INVALID
BECAUSE ITS EFFECT WAS TO "FIX" RATES AND CHARGES DURING AN EMERGENCY--
A POWER NOT COVERED BY 1(15).  THAT PRECISE POINT WAS RAISED IN
IVERSEN, 63 F.SUPP.,AT 1006, AND THE RULING, WHICH WE AFFIRMED, WAS
CONTRA.  SUSPENDING OR CHANGING DEMURRAGE CHARGES MAY INCREASE THE
TRANSPORTATION CHARGES; BUT, AS TURNER MAKES CLEAR, DEMURRAGE HARGES
HAVE A DUAL PURPOSE; AND IT IS ENOUGH IF ONE OF THEM IS A DETERRENT
AGAINST UNDUE DETENTION OF CARS.  AS WE SAID IN TURNER, AT TIMES THE
CAUSE OF "UNDUE DETENTION" OF FREIGHT CARS IS THAT THEY ARE USED "AS A
PLACE OF STORAGE, EITHER AT DESTINIATION OR AT RECONSIGNMENT POINTS,
FOR A LONG PERIOD WHILE SEEKING A MARKET FOR THE GOODS STORED
THEREIN."  271 U.S.,AT 262.  THE SUBSTITUTION OF TARIFF RATES ALREADY
FIXED AND ON FILE FOR THE OLD DEMURRAGE RATE IS NOT AN UNREASONABLE
METHOD OF ACCELERATING THE MOVEMENT OF FREIGHT CARS.  THAT WAS THE AIM
AND PURPOSE OF THE PRESENT SERVICE ORDER; AND IT WAS PROMULGATED IN AN
"EMERGENCY" /9/ WHICH THE COMMISSION, USING ITS EXPERTISE, FOUND TO
EXIST.  WE CANNOT SAY THE ORDER WAS UNREASONABLE ON THE RECORD
BEFOREUS.  INSOFAR AS APPELLEES RAISE QUESTIONS OF UNFAIRNESS, THEY ARE
PRECLUDED BY THE OPINIONS OF MR. JUSTICE HOLMES IN AVENT V. UNITED
STATES, 266 U.S. 127, AND OF MR. JUSTICE BRANDEIS IN TURNER LUMBER CO.
V. CHICAGO, M. & ST. P.R. CO., SUPRA, WHICH DISPOSED OF DUE PROCESS
QUESTIONS UNDER 1(15).  WE THEREFORE HOLD THAT THE COMMISSION HAD THE
POWER TO PROMULGATE SERVICE ORDER NO. 1134 SUMMARILY.  /10/

      REVERSED. 

/1/ THIS SERVICE ORDER BY ITS ORIGINAL TERMS WAS TO EXPIRE JULY 31,
1973, UNLESS OTHERWISE MODIFIED OR CHANGED BY THE COMMISSION.  38
FED.REG.  12606.  THE COMMISSION TWICE EXTENDED THE DEADLINE, 38
FED.REG.  19831, 31681, AND ON APRIL 11, 1974, MADE IT EFFECTIVE "UNTIL
FURTHER ORDER OF THE COMMISSION," 39 FED.REG.  12971, ON EACH OCCASION
HAVING FOUND "GOOD CAUSE" FOR THE EXTENSION.  THE APRIL 11 AMENDMENT
ALSO SUSPENDED THE SERVICE ORDER INDEFINITELY, EFFECTIVE APRIL 15,
1974. 

THE SOLICITOR GENERAL WITHOUT CITATION OF ANY AUTHORITY EXPRESSED
HIS VIEW THAT THE DISTRICT COURT'S DECISION WAS CORRECT AND MOVED THAT
ITS JUDGMENT BE AFFIRMED.  THE WESTERN RAILROAD TRAFFIC ASSOCIATION HAS
FILED AN AMICUS BRIEF TAKING THE OPPOSING VIEW. 

/2/ SECTION 1(15), 49 U.S.C. 1(15), PROVIDES: 

"WHENEVER THE COMMISSION IS OF OPINION THAT SHORTAGE OF EQUIPMENT,
CONGESTION OF TRAFFIC, OR OTHER EMERGENCY REQUIRING IMMEDIATE ACTION
EXISTS IN ANY SECTION OF THE COUNTRY, THE COMMISSION SHALL HAVE, AND IT
IS HEREBY GIVEN, AUTHORITY, EITHER UPON COMPLAINT OR UPON ITS OWN
INITIATIVE WITHOUT COMPLAINT, AT ONCE, IF IT SO ORDERS, WITHOUT ANSWER
OR OTHER FORMAL PLEADING BY THE INTERESTED CARRIER OR CARRIERS, AND
WITH OR WITHOUT NOTICE, HEARING, OR THE MAKING OR FILING OF A REPORT,
ACCORDING AS THE COMMISSION MAY DETERMINE:  (A) TO SUSPEND THE
OPERATION OF ANY OR ALL RULES, REGULATIONS, OR PRACTICES THEN
ESTABLISHED WITH RESPECT TO CAR SERVICE FOR SUCH TIME AS MAY BE
DETERMINED BY THE COMMISSION; (B) TO MAKE SUCH JUST AND REASONABLE
DIRECTIONS WITH RESPECT TO CAR SERVICE WITHOUT REGARD TO THE OWNERSHIP
AS BETWEEN CARRIERS OF LOCOMOTIVES, CARS, AND OTHER VEHICLES, DURING
SUCH EMERGENCY AS IN ITS OPINION WILL BEST PROMOTE THE SERVICE IN THE
INTEREST OF THE PUBLIC AND THE COMMERCE OF THE PEOPLE, UPON SUCH TERMS
OF COMPENSATION AS BETWEEN THE CARRIERS AS THEY MAY AGREE UPON, OR, IN
THE EVENT OF THEIR DISAGREEMENT, AS THE COMMISSION MAY AFTER SUBSEQUENT
HEARING FIND TO BE JUST AND REASONABLE; (C) TO REQUIRE SUCH JOINT OR
COMMON USE OF TERMINALS, INCLUDING MAIN-LINE TRACK OR TRACKS FOR A
REASONABLE DISTANCE OUTSIDE OF SUCH TERMINALS, AS IN ITS OPINION WILL
BEST MEET THE EMERGENCY AND SERVE THE PUBLIC INTEREST, AND UPON SUCH
TERMS AS BETWEEN THE CARRIERS AS THEY MAY AGREE UPON, OR, IN THE EVENT
OF THEIR DISAGREEMENT, AS THE COMMISSION MAY AFTER SUBSEQUENT HEARING
FIND TO BE JUST AND REASONABLE; AND (D) TO GIVE DIRECTIONS FOR
PREFERENCE OR PRIORITY IN TRANSPORTATION, EMBARGOES, OR MOVEMENT OF
TRAFFIC UNDER PERMITS, AT SUCH TIME AND FOR SUCH PERIODS AS IT MAY
DETERMINE, AND TO MODIFY, CHANGE, SUSPEND, OR ANNUL THEM.  IN TIME OF
WAR OR THREATENED WAR THE PRESIDENT MAY CERTIFY TO THE COMMISSION THAT
IT IS ESSENTIAL TO THE NATIONAL DEFENSE AND SECURITY THAT CERTAIN
TRAFFIC SHALL HAVE PREFERENCE OR PRIORITY IN TRANSPORTATION, AND THE
COMMISSION SHALL, UNDER THE POWER HEREIN CONFERRED, DIRECT THAT SUCH
PREFERENCE OR PRIORITY BE AFFORDED." 

/3/ SEE H. R. REP. NO. 18, 65TH CONG., 1ST SESS.; S. REP. NO. 43,
65TH CONG., 1ST SESS. 

/4/ 55 CONG.REC.  2020 - 2021. 

/5/ S. REP., SUPRA, N. 2, AT 2. 

/6/ H. R. REP., SUPRA, N. 2, AT 1. 

/7/ IVERSEN V. UNITED STATES, 63 F.SUPP.  1001, INVOLVED FOUR
SERVICE ORDERS OF THE COMMISSION.  SERVICE ORDER NO. 396 IN THAT CASE
WAS ON ALL FOURS WITH THE ONE IN THE INSTANT CASE.  IN IVERSEN, JUDGE
PRETTYMAN, SPEAKING FOR A THREE-JUDGE DISTRICT COURT, SAID:  "(D)
EMURRAGE CHARGES ARE IN PART COMPENSATION AND IN PART PENALTY; . . . IN
FULL CHARACTER THEY ARE NEITHER, NOT BEING RATES AS THAT TERM IS USED
IN CONNECTION WITH RATE-MAKING, NOR PENALTIES AS THAT TERM IS USED IN
RESPECT TO PENAL IMPOSITIONS.  THEY ARE SUI GENERIS.  HISTORICALLY,
TEXTUALLY, IN PURPOSE AND IN CONTENT, THEY ARE AN INTEGRAL PART OF THE
ESTABLISHED RULES AND REGULATIONS RELATING TO THE USE AND MOVEMENT OF
CARS.  FROM THE BEGINNING THEY HAVE BEEN SUSTAINED AS RULES AND
REGULATIONS.  THEY COULD NOT HAVE BEEN SUSTAINED AS CARRIER CHARGES OR
AS PENALTIES.  AS AN INTEGRAL PART OF THE RULES AND REGULATIONS IN
RESPECT TO CAR SERVICE, THEY FALL WITHIN THE PROVISIONS OF SECTION
1(15) OF THE INTERSTATE COMMERCE ACT.  IT FOLLOWS THAT WHEN AN
EMERGENCY EXISTS, THE COMMISSION CAN, WITHOUT HEARING, ISSUE, EFFECTIVE
FOR A LIMITED TIME, ORDERS IN RESPECT OT THESE CHARGES."  63 F.SUPP.,AT
1005 - 1006.     /8/ THE DISTRICT COURT DISTINGUISHED TURNER ON THE
GROUND THAT IT INVOLVED A "DEMURRAGE TARIFF DULY FILED," 271 U.S.,AT
160.  BUT IT WAS FILED BY REASON OF 1(15) DURING AN "EMERGENCY" AND, AS
IN THE PRESENT CASE, "WITHOUT NOTICE".  271 U.S.,AT 260.     /9/ A CAR
SERVICE ORDER OF THE COMMISSION ISSUED JULY 25, 1922, BECAUSE OF AN
"EMERGENCY" WITHOUT NOTICE AND HEARING WAS SUSTAINED IN AVENT V. UNITED
STATES, 266 U.S. 127, AGAINST THE CLAIM THAT THE ORDER VIOLATED THE
FIFTH AMENDMENT. 

/10/ THIS IS THE ONLY QUESTION WE DECIDE TODAY.  THE COMMISSION'S
PRESENT OBLIGATION WITH RESPECT TO THE PROMULGATION OF CAR SERVICE
RULES, THE ISSUE THAT CONCERNS OUR BROTHER POWELL, HAS NOT BEEN RAISED
BY COUNSEL HERE OR IN THE COURT BELOW, AND, ACCORDINGLY, IS A MATTER WE
DO NOT ADDRESS. 

MR. JUSTICE POWELL CONCURRING. 

I AM IN AGREEMENT WITH THE COURT'S OPINION THAT THE INTERSTATE
COMMERCE COMMISSION HAD THE POWER UNDER 1(15) SUMMARILY TO TAKE THE
ACTION WHICH IS THE SUBJECT OF THIS LITIGATION.  I BELIEVE, HOWEVER,
THAT IN ADDITION TO REVERSING THE JUDGMENT OF THE DISTRICT COURT, WE
SHOULD DIRECT THAT THE CASE BE REMANDED FOR A PROMPT PROCEEDING UNDER
1(14) OF THE ACT. 

THE COMMISSION ENTERED SERVICE ORDER NO. 1134 ON MAY 8, 1973,
WITHOUT NOTICE, HEARING, OR AN OPPORTUNITY BY INTERESTED PARTIES TO
SUBMIT EVIDENCE OR GROUNDS OF OBJECTION.  THE COMMISSION FOUND, AS IT
HAD TO UNDER 1(15), THAT: 

"(AN EMERGENCY EXISTS REQUIRING IMMEDIATE ACTION TO PROMOTE CAR
SERVICE IN THE INTEREST OF THE PUBLIC AND THE COMMERCE OF THE PEOPLE. 
ACCORDINGLY, THE COMMISSION FINDS THAT NOTICE AND PUBLIC PROCEDURE ARE
PRACTICABLE AND CONTRARY TO THE PUBLIC INTEREST . . .." 

THE COMMISSION'S COUNSEL STATED AT ORAL ARGUMENT THAT WHILE THE CAR
SHORTAGE PROBLEM HAS A LONG HISTORY, THE PRESENT ORDER WAS IN RESPONSE
TO A PARTICULARLY SHARP BUT TEMPORARY INCREASE IN THE SEVERITY OF THE
PROBLEM.  COUNSEL ACKNOWLEDGED, HOWEVER, THAT THIS TEMPORARY EMERGENCY
HAS SUBSIDED AND THAT THE ORDER HAS BEEN MAINTAINED IN EFFECT LARGELY
BECAUSE OF THIS LITIGATION.  /1/ 

SUMMARY ACTION IS JUSTIFIED BY THE NEED TO PREVENT IMMINENT AND
SEVERE PUBLIC HARM, HARM THAT COULD NOT BE AVOIDED WERE ACTION
DELAYED.  IN AUTHORIZING THIS TYPE OF ACTION, CONGRESS IMPLICITLY
CONCLUDED THAT AVOIDANCE OF ACTION, CONGRESS IMPLICITLY CONCLUDED THAT
AVOIDANCE OF THE PUBLIC HARM JUSTIFIES BYPASSING NORMAL PROCEDURES. 
BUT THE JUSTIFICATION FOR SUMMARY ACTION ENDS WITH THE EMERGENCY THAT
CALLED IT FORTH. 

NO REASON HAS BEEN GIVEN US WHY THE NORMAL PROCEDURES WITH RESPECT
TO "CAR SERVICE" RULES UNDER 1(14) SHOULD NOT NOW BE FOLLOWED.  /2/
ALTHOUGH THESE DO NOT REQUIRE A FULL ADVERSARY HEARING, DUE NOTICE MUST
BE GIVEN ALL INTERESTED PARTIES, WITH THE OPPORTUNITY TO OBJECT, SUBMIT
EVIDENCE, AND FILE BRIEFS IN SUPPORT OF THEIR POSITION.  UNITED STATES
V. FLORIDA EAST COAST R. CO., 410 U.S. 224 (1973); UNITED STATES V.
ALLEGHENY-LUDLUM STEEL CORP., 406 U.S. 742 (1972). 

THE COURT'S REVERSAL OF THE DISTRICT COURT'S DECISION, WITHOUT MORE,
WILL RESULT IN THE VACATING OF ITS ORDER OF OCTOBER 18, 1973,
RESTRAINING ENFORCEMENT OF THE COMMISSION'S EMERGENCY ORDER OF MAY 8,
1973.  ABSENT THE RESTRAINING ORDER OF THE DISTRICT COURT, THE
EMERGENCY CAR SERVICE RULES APPARENTLY WILL REAMIN IN EFFECT.  I THINK
IT UNFORTUNATE TO LEAVE THE CASE IN THIS POSTURE.  ACCORDINGLY, IN
ADDITION TO REVERSING THE JUDGMENT OF THE DISTRICT COURT, I WOULD
DIRECT THAT THE CASE BE REMANDED TO THE COMMISSION WITH DIRECTIONS THAT
IT PROCEED PROMPTLY IN ACCORDANCE WITH THE REQUIREMENTS OF 1(14) TO
DETERMINE WHAT CHANGES, IF ANY, ARE REQUIRED IN THE CAR SERVICE RULES. 

/1/ ALTHOUGH ORIGINALLY DRAWN TO EXPIRE JULY 31, 1973, THE
COMMISSION LATER CONTINUED IT IN EFFECT, WHILE SUSPENDING ITS
APPLICATION, "UNTIL FURTHER ORDER OF THE COMMISSION."  39 FED.REG. 
13971.  THE ORDER WAS VACATED, HOWEVER, BY THE DISTRICT COURT ON
OCTOBER 18, 1973, SOME FIVE AND A HALF MONTHS AFTER ITS PROMULGATION
PROMULGATION.  PRESUMABLY, OUR REVERSAL OF THE DISTRICT COURT WILL
ALLOW THE COMMISSION, IN ITS DISCRETION, TO LIFE THE SUSPENSION OF THE
ORDER WITHOUT ANY RENEWED FINDING OF EMERGENCY. 

/2/ THE PROCEDURAL SAFEGUARDS AFFORDED BY 1(14), AND WHICH THE
COMMISSION MUST FOLLOW ABSENT AN EMERGENCY, NOT ONLY AFFORD PROTECTION
TO THE INTERESTS OF PRIVATE PARTIES AFFECTED BY AGENCY ACTION; THEY
ALSO INSURE THAT THE AGENCY HAS BEFORE IT THE INFORMATION NECESSARY TO
MAKE A DECISION REASONABLY ACCOMMODATING DIVERSE AND OFTEN COMPETING
PUBLIC INTERESTS.  SUMMARY ACTION MAY RESULT IN THE IMPOSITION OF
HARDSHIPS WHICH, UPON A MORE ADEQUATE CONSIDERATION, WILL PROVE TO HAVE
BEEN UNNECESSARY.  SEE FREEDMAN, SUMMARY ACTION BY ADMINISTRATIVE
AGENCIES, 40 U.CHI.L.REV.  1, 27 - 30 (1972). 

CHARLES H. WHITE, JR., ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON
THE BRIEF WERE FRITZ R. KAHN AND BETTY JO CHRISTIAN. 

SEYMOUR L. COBLENS ARGUED THE CAUSE AND FILED A BRIEF FOR 

APPELLEES. 

JAMES H. CLARKE FILED A BRIEF FOR WESTERN RAILROAD TRAFFIC ASSN. AS
AMICUS CURIAE URGING REVERSAL. 
..END :








ANTOINE V. WASHINGTON, 420 U.S. 194 


       ANTOINE ET UX. V. WASHINGTON

        APPEAL FROM THE SUPREME COURT OF WASHINGTON

        NO. 73 - 717.  ARGUED DECEMBER 16, 1974--DECIDED FEBRUARY

           19, 1975; 82 WASH.2D 440, 511 P.2D 1351, REVERSED AND

REMANDED. 


    APPELLANT INDIANS WERE CONVICTED OF STATE STATUTORY GAME

  VIOLATIONS THAT HAD ALLEGEDLY BEEN COMMITTED IN AN AREA OF A

  FORMER INDIAN RESERVATION THAT THE TRIBE HAD CEDED TO "HE

  GOVERNMENT BY AN AGREEMENT MADE IN 1891, LATER RATIFIED AND

  IMPLEMENTED BY CONGRESS, ONE OF WHOSE PROVISIONS (ART. 6), RELIED

  UPON AS A DEFENSE BY APPELLANTS, SPECIFIED THAT THE HUNTING

  RIGHTS OF INDIANS IN COMMON WITH OTHER PERSONS WOULD NOT BE TAKEN

  AWAY OR ABRIDGED.  THE STATE SUPREME COURT, UPHOLDING THE LOWER

  COURT'S REJECTION OF APPELLANTS' DEFENSE, HELD THAT CONGRESS WAS

  NOT CONSTITUTIONALLY EMPOWERED TO INHIBIT A STATE'S EXERCISE OF

  ITS POLICE POWER BY LEGISLATION RATIFYING A CONTRACT, TO WHIC AS

  HERE THE STATE WAS NOT A PARTY, BETWEEN THE EXECUTIVE BRANCH AND

  AN INDIAN TRIBE; THAT IN ANY EVENT THE FEDERAL IMPLEMENTING

  STATUTES (WHICH DID NOT MENTION ART. 6) DID NOT RENDER THE

  STATE'S GAME LAWS INAPPLICABLE TO THE INDTAN BENEFICIARIES OF THE

  AGREEMENT; AND THAT ART. 6 WAS MERELY A PROMISE BY THE UNITED

  STATES THAT SO LONG AS IT RETAINED ANY CEDED LAND AND ALLOWED

  OTHER TO HUNT THEREON, INDIANS ALSO WOULD BE PERMITTED TO HUNT

  THERE.  HELD: 

     1.  THE RATIFYING LEGISLATION MUST BE CONSTRUED IN THE LIGHT
OF

  THE LONGSTANDING CANON OF CONSTRUCTION THAT THE WORDING OF

  TREATIES AND STATUTES RATIFYING AGREEMENTS WITH THE INDIANS IS

  NOT TO BE CONSTRUED TO THEIR PREJUDICE.  PP. 199 - 200. 

     2.  THE SUPREMACY CLAUSE PRECLUDES APPLICATION OF THE STATE

  GAME LAWS HERE SINCE THE FEDERAL STATUTES RATIFYING THE 1891

  AGREEMENT BETWEEN THE EXECUTIVE BRANCH AND THE INDIAN TRIBE ARE

  "LAWS OF THE UNITED STATES . . . MADE IN PURSUANCE" OF THE

CONSTITUTION AND THEREFORE LIKE ALL "TREATIES MADE" ARE MADE

  BINDING UPON AFFECTED STATES.  NOR DOES THE FACT THAT CONGRESS

  HAD ABOLISHED THE CONTRACT-BY-TREATY METHOD OF DEALING WITH

  INDIAN TRIBES AFFECT CONGRESS' POWER TO LEGISLATE ON THE PROBLEMS

  OF INDIANS, INCLUDING LEGISLATION RATIFYING CONTRACTS BETWEEN THE

  EXECUTIVE BRANCH WITH INDIAN TRIBES TO WHICH AFFECTED STATES WERE

  NOT PARTIES.  CHOATE V. TRAPP, 224 U.S. 665; PERRIN V. UNITED

  STATES, 232 U.S. 478.  PP. 200 - 204. 

     3.  IN RATIFYING THE AGREEMENT PURSUANT TO ITS PLENARY

  CONSTITUTIONAL POWERS CONGRESS MANIFESTED NO PURPOSE OF

  SUBJECTING THE RIGHTS CONFERRED UPON THE INDIANS TO STATE

  REGULATION, AND IN VIEW OF THE UNQUALIFIED RATIFICATION OF ART. 6

  ANY STATE QUALIFICATION OF THOSE RIGHTS IS PRECLUDED BY E

  SUPREMACY CLAUSE.  PP. 204 - 205. 

     4.  ALTHOUGH THE STATE IS FREE TO REGULATE NON-INDIAN HUNTING

  RIGHTS IN THE CEDED AREA, THE RATIFYING LEGISLATION MUST BE

  CONSTRUED TO EXEMPT THE INDIANS FROM THE LIKE STATE CONTROL OR

  CONGRESS WOULD HAVE PRESERVED NOTHING THAT THE INDIANS WOULD NOT

  HAVE HAD WITHOUT THE LEGISLATION, WHICH WOULD HAVE BEEN "AN

IMPOTENT OUTCOME TO (THE) NEGOTIATIONS," UNITED STATES V. WINANS,

  198 U.S. 371, 380.  PP. 205 - 206. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND WHITE, MARSHALL, BLACKMUN, AND POWELL, JJ.,

 JOINED.  DOUGLAS, J., FILED A CONCURRING OPINION, POST, P. 208. 

  REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH STEWART, J.,

  JOINED, POST, P. 213. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS, HUSBAND AND WIFE, ARE INDIANS.  THEY WERE CONVICTED
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON /1/ OF THE OFFENSES OF
HUNTING AND POSSESSION OF DEER DURING CLOSED SEASON IN VIOLATION OF
WASH. REV. CODE 77.16.020 AND 77.16.030 (1974).  /2/  THE OFFENSES
OCCURRED ON SEPTEMBER 11, 1971, IN FERRY COUNTY ON UNALLOTTED NON
INDIAN LAND IN WHAT WAS ONCE THE NORTH HALF OF THE COLVILLE INDIAN
RESERVATION.  /3/ THE COLVILLE CONFEDERATED TRIBES CEDED TO THE UNITED
STATES THAT NORTHERN HALF UNDER A CONGRESSIONALLY RATIFIED AND ADOPTED
AGREEMENT, DATED MAY 9, 1891.  ARTICLE 6 OF THAT RATIFIED AGREEMENT
PROVIDED EXPRESSLY THAT "THE RIGHT TO HUNT AND FISH IN COMMON WITH ALL
OTHER PERSONS ON LANDS NOT ALLOTTED TO SAID INDIANS SHALL NOT BE TAKEN
AWAY OR IN ANYWISE ABRIDGED."  /4/ APPELLANTS'  DEFENSE WAS THAT
CONGRESSIONAL APPROVAL OF ART. 6 EXCLUDED FROM THE CESSION AND RETAINED
AND PRESERVED FOR THE CONFEDERATED TRIBES THE EXCLUSIVE, ABSOLUTE, AND
UNRESTRICTED RIGHTS TO HUNT AND FISH THAT HAD BEEN PART OF THE INDIANS'
LARGER RIGHTS IN THE CEDED PORTION OF THE RESERVATION, THUS LIMITING
GOVERNMENTAL REGULATION OF THE RIGHTS TO FEDERAL REGULATION AND
PRECLUDING APPLICATION TO THEM OF WASH. REV. CODE 77.16.020 AND
77.16.030.  THE SUPREME COURT OF WASHINGTON HELD THAT THE SUPERIOR
COURT HAD PROPERLY REJECTED THIS DEFENSE AND AFFIRMED THE CONVICTIONS,
82 WASH.2D 440, 511 P.2D 1351 (1973).  WE NOTED PROBABLE JURISDICTION,
417 U.S. 966 (1974). 

        I 

PRESIDENT GRANT ESTABLISHED THE ORIGINAL COLVILLE INDIAN RESERVATION
BY EXECUTIVE ORDER OF JULY 2, 1872.  WASHINGTON BECAME A STATE IN 1889,
26 STAT. 1552, AND THE NEXT YEAR, BY THE ACT OF AUGUST 19, 1890, 26
STAT. 355, CONGRESS CREATED THE COMMISSION THAT NEGOTIATED THE 1891
AGREEMENT.  /5/ BY ITS TERMS, THE TRIBES CEDED THE NORTHERN HALF OF THE
RESERVATION IN RETURN FOR BENEFITS WHICH INCLUDED THE STIPULATIONS OF
ART. 6 AND THE PROMISE OF THE UNITED STATES TO PAY $1,500,000 IN FIVE
INSTALLMENTS.  THE AGREEMENT WAS TO BECOME EFFECTIVE, HOWEVER, ONLY
"FROM AND AFTER ITS APPROVAL BY CONGRESS."  CONGRESSIONAL APPROVAL WAS
GIVEN IN A SERIES OF STATUTES.  THE FIRST STATUTE WAS THE ACT OF JULY
1, 1892, 27 STAT. 62, WHICH "VACATED AND RESTORED (THE TRACT) TO THE
PUBLIC DOMAIN . . . ," AND "OPENED) . . . (IT) . . . TO SETTLEMENT . .
.."  THE SECOND STATUTE CAME 14 YEARS LATER, THE ACT OF JUNE 21, 1906,
34 STAT. 325, 377 - 378.  THAT STATUTE IN TERMS "CARRIED) INTO EFFECT
THE AGREEMENT," AND AUTHORIZED THE APPROPRIATION OF THE $1,500,000. 
PAYMENT OF THE $1,500,000 WAS EFFECTED BY FIVE SUBSEQUENT ENACTMENTS
FROM 1907 TO 1911, EACH OF WHICH APPROPRIATED $300,000 AND RECITED IN
SUBSTANTIALLY IDENTICAL LANGUAGE THAT IT WAS PART PAYMENT "TO THE
INDIANS ON THE COLVILLE RESERVATION, WASHINGTON, FOR THE CESSION OF
LAND OPENED TO SETTLEMENT BY THE ACT OF JULY FIRST, EIGHTEEN HUNDRED
AND NINETY-TWO . . . BEING A PART OF THE FULL SUM SET ASIDE AND HELD IN
THE TREASURY OF THE UNITED STATES IN PAYMENT FOR SAID LAND UNDER THE
TERMS OF THE ACT OF JUNE TWENTY-FIRST, NINETEEN HUNDRED AND SIX,
RATIFYING THE AGREEMENT CEDING SAID LAND TO THE UNITED STATES UNDER
DATE OF MAY NINTH, EIGHTEEN HUNDRED AND NINETY-ONE . . .."  (EMPHASIS
SUPPLIED.)  34 STAT. 1015, 1050 - 1051 (1907); 35 STAT. 70, 96 (1908);
35 STAT. 781, 813 (1909); 36 STAT. 269, 286 (1910); 36 STAT. 1058, 1075
(1911).  /6/ 

THE CANON OF CONSTRUCTION APPLIED OVER A CENTURY AND A HALF BY THIS
COURT IS THAT THE WORDING OF TREATIES AND STATUTES RATIFYING AGREEMENTS
WITH THE INDIANS IS NOT TO BE CONSTRUED TO THEIR PREJUDICE.  WORCESTER
V. GEORGIA, 6 PET. 515 (1832).  SEE ALSO THE KANSAS INDIANS, 5 WALL. 
737, 760 (1867); UNITED STATES V. KAGAMA, 118 U.S. 375 (1886); CHOCTAW
NATION V. UNITED STATES, 119 U.S. 1, 28 (1886); UNITED STATES V.
WINANS, 198 U.S. 371, 380 - 381 (1905); CHOATE V. TRAPP, 224 U.S. 665,
675 (1912); MENOMINEE TRIBE V. UNITED STATES, 391 U.S. 404, 406 N. 2
(1968).  IN CHOATE V. TRAPP, SUPRA, ALSO A CASE INVOLVING A RATIFYING
STATUTE, THE COURT STATED:  "THE CONSTRUCTION, INSTEAD OF BEING STRICT,
IS LIBERAL; DOUBTFUL EXPRESSIONS, INSTEAD OF BEING RESOLVED IN FAVOR OF
THE UNITED STATES, ARE TO BE RESOLVED IN FAVOR OF A WEAK AND
DEFENSELESS PEOPLE, WHO ARE WARDS OF THE NATION, AND DEPENDENT WHOLLY
UPON ITS PROTECTION AND GOOD FAITH."  224 U.S.,AT 675.  SEE ALSO
SEMINOLE NATION V. UNITED STATES, 316 U.S. 286, 296 (1942); MORTON V.
RUIZ, 415 U.S. 199, 236 (1974).  THUS, EVEN IF THERE WERE DOUBT, AND
THERE IS NONE, THAT THE WORDS "(TO CARRY INTO EFFECT THE (1891)
AGREEMENT," IN THE 1906 ACT, AND THE WORDS "RATIFYING THE (1891)
AGREEMENT," IN THE 1907 - 1911 LAWS, RATIFIED ART. 6, APPLICATION OF
THIS CANON WOULD REQUIRE THAT WE CONSTRUE THE SERIES OF STATUTES AS
HAVING RATIFIED THAT ARTICLE. 

        II 

ALTHOUGH ADMITTED TO STATEHOOD TWO YEARS EARLIER, THE STATE OF
WASHINGTON WAS NOT A PARTY TO THE 1891 AGREEMENT.  THE OPINION OF THE
STATE SUPREME COURT RELIES UPON THAT FACT TO ATTEMPT A DISTINCTION FOR
PURPOSES OF THE SUPREMACY CLAUSE /7/ BETWEEN THE BINDING RESULT UPON
THE STATE OF RATIFICATION OF A CONTRACT BY TREATY EFFECTED BY
CONCURRENCE OF TWO-THIRDS OF THE SENATE, ART. II, 2, CL. 2, AND THE
BINDING RESULT OF RATIFICATION OF A CONTRACT EFFECTED BY LEGISLATION
PASSED BY THE HOUSE AND THE SENATE.  THE OPINION STATES THAT "(ONCE
RATIFIED, A TREATY BECOMES THE SUPREME LAW OF THE LAND" (EMPHASIS
SUPPLIED), BUT THE RATIFIED 1891 AGREEMENT WAS A MERE CONTRACT
ENFORCEABLE "ONLY AGAINST THOSE PARTY TO IT," AND "NOT A TREATY . . .
(AND) . . . NOT THE SUPREME LAW OF THE LAND."  82 WASH.2D,AT 444, 451,
511 P.2D,AT 1354, 1358.  THE GROUNDS OF THIS ATTEMPTED DISTINCTION DO
NOT CLEARLY EMERGE FROM THE OPINION.  THE OPINION STATES, HOWEVER:
"THE STATUTES ENACTED BY CONGRESS IN IMPLEMENTATION OF THIS (1891)
AGREEMENT . . . ARE THE SUPREME LAW IF THEY ARE WITHIN THE POWER OF THE
CONGRESS TO ENACT . . .."  ID., AT 451, 511 P.2D,AT 1358.  IN THE
CONTEXT OF THE DISCUSSION IN THE OPINION WE TAKE THIS TO MEAN THAT THE
CONGRESS IS NOT CONSTITUTIONALLY EMPOWERED TO INHIBIT A STATE'S
EXERCISE OF ITS POLICE POWER BY LEGISLATION RATIFYING A CONTRACT
BETWEEN THE EXECUTIVE BRANCH AND AN INDIAN TRIBE TO WHICH THE STATE IS
NOT A PARTY.  THE FALLACY IN THAT PROPOSITION IS THAT A LEGISLATED
RATIFICATION OF AN AGREEMENT BETWEEN THE EXECUTIVE BRANCH AND AN INDIAN
TRIBE IS A "(LAW) OF THE UNITED STATES . . . MADE IN PURSUANCE" OF THE
CONSTITUTION AND, THEREFORE, LIKE "ALL TREATIES MADE," IS MADE BINDING
UPON AFFECTED STATES BY THE SUPREMACY CLAUSE. 

THE OPINION SEEMS TO FIND SUPPORT FOR THE ATTEMPTED DISTINCTION IN
THE FACT THAT, IN 1891, THE EXECUTIVE BRANCH WAS NOT AUTHORIZED TO
CONTRACT BY TREATY WITH INDIAN TRIBES AS SOVEREIGN AND INDEPENDENT
NATIONS.  ID., AT 444, 511 P.2D,AT 1354.  TWENTY YEARS EARLIER, IN
1871, 16 STAT. 544, 566, CONGRESS HAD FORBIDDEN THEREAFTER RECOGNITION
OF INDIAN NATIONS AND TRIBES AS SOVEREIGN INDEPENDENT NAIIONS, AND THUS
HAD ABROGATED THE CONTRACT-BY-TREATY METHOD OF DEALING WITH INDIAN
TRIBES.  /8/ THE ACT OF 1871 RESULTED FROM THE OPPOSITION OF THE HOUSE
OF REPRESENTATIVES TO ITS PRACTICAL EXCLUSION FROM ANY POLICY ROLE IN
INDIAN AFFAIRS.  FOR NEARLY A CENTURY THE EXECUTIVE BRANCH MADE TREATY
ARRANGEMENTS WITH THE INDIANS "BY AND WITH THE ADVICE AND CONSENT OF
THE SENATE," ART. II, 2, CL. 2.  ALTHOUGH THE HOUSE APPROPRIATED MONEY
TO CARRY OUT THESE TREATIES, IT HAD NO VOICE IN THE DEVELOPMENT OF
SUBSTANTIVE INDIAN POLICY REFLECTED IN THEM.  HOUSE RESENTMENT FIRST
RESULTED IN LEGISLATION IN 1867 REPEALING "ALL LAWS ALLOWING THE
PRESIDENT, THE SECRETARY OF THE INTERIOR, OR THE COMMISSIONER OF INDIAN
AFFAIRS TO ENTER INTO TREATIES WITH ANY INDIAN TRIBES."  ACT OF MARCH
29, 1867, 15 STAT. 7, 9, BUT THIS WAS REPEALED A FEW MONTHS LATER, ACT
OF JULY 20, 1867, 15 STAT. 18.  AFTER FURTHER UNSUCCESSFUL HOUSE
ATTEMPTS TO ENTER THE FIELD OF FEDERAL INDIAN POLICY, THE HOUSE REFUSED
TO GRANT FUNDS TO CARRY OUT NEW TREATIES.  UNITED STATES DEPARTMENT OF
THE INTERIOR, FEDERAL INDIAN LAW 211 (1958).  FINALLY, THE SENATE
CAPITULATED AND JOINED THE HOUSE IN PASSAGE OF THE 1871 ACT AS A RIDER
TO THE INDIAN APPROPRIATION ACT OF 1871.  FEDERAL INDIAN LAW 138.  /9/ 

THIS MEANT NO MORE, HOWEVER, THAN THAT AFTER 1871 RELATIONS WITH
INDIANS WOULD BE GOVERNED BY ACTS OF CONGRESS AND NOT BY TREATY.  ELK
V. WILKINS, 112 U.S. 94 (1884); IN RE HEFF, 197 U.S. 488 (1905).  THE
CHANGE IN NO WAY AFFECTED CONGRESS' PLENARY POWERS TO LEGISLATE ON
PROBLEMS OF INDIANS, INCLUDING LEGISLATING THE RATIFICATION OF
CONTRACTS OF THE EXECUTIVE BRANCH WITH INDIAN TRIBES TO WHICH AFFECTED
STATES WERE NOT PARTIES.  SEVERAL DECISIONS OF THIS COURT HAVE LONG
SETTLED THAT PROPOSITION.  IN CHOATE V. TRAPP, 224 U.S. 665 (1912), THE
COURT HELD THAT TAX EXEMPTIONS CONTAINED IN AN 1897 AGREEMENT RATIFIED
BY CONGRESS BETWEEN THE UNITED STATES AND INDIAN TRIBES AS PART OF A
CESSION OF INDIAN LANDS WERE ENFORCEABLE AGAINST THE STATE OF OKLAHOMA,
WHICH WAS NOT A PARTY TO THE AGREEMENT.  IN PERRIN V. UNITED STATES,
232 U.S. 478 (1914), THE COURT ENFORCED A CLAUSE OF AN AGREEMENT
RATIFIED BY ACT OF CONGRESS THAT NO INTOXICATING LIQUOR SHOULD BE SOLD
ON LAND IN SOUTH DAKOTA CEDED AND RELINQUISHED TO THE UNITED STATES,
ALTHOUGH SOUTH DAKOTA WAS NOT A PARTY TO THE AGREEMENT.  THE COURT
EXPRESSLY REJECTED THE CONTENTION THAT THE POWER TO REGULATE THE SALE
OF INTOXICATING LIQUORS UPON ALL CEDED LANDS RESTED EXCLUSIVELY IN THE
STATE.  RATHER, BECAUSE CONGRESS WAS EMPOWERED, WHEN SECURING THE
CESSION OF PART OF AN INDIAN RESERVATION WITHIN A STATE, TO PROHIBIT
THE SALE OF INTOXICANTS UPON THE CEDED LANDS, "IT FOLLOWS THAT THE
STATE POSSESSES NO EXCLUSIVE CONTROL OVER THE SUBJECT AND THAT THE
CONGRESSIONAL PROHIBITION IS SUPREME."  ID., AT 483.  SEE ALSO DICK V.
UNITED STATES, 208 U.S. 340 (1908).  THESE DECISIONS SUSTAINED THE
RATIFIED AGREEMENTS AS THE EXERCISE BY CONGRESS OF ITS "PLENARY POWER .
. . TO DEAL WITH THE SPECIAL PROBLEMS OF INDIANS (THAT) IS DRAWN BOTH
EXPLICITLY AND IMPLICITLY FROM THE CONSTITUTION ITSELF.  ARTICLE I, 8,
CL. 3, PROVIDES CONGRESS WITH THE POWER TO 'REGULATE COMMERCE . . .
WITH THE INDIAN TRIBES,' AND THUS, TO THIS EXTENT, SINGLES INDIANS OUT
AS A PROPER SUBJECT FOR SEPARATE LEGISLATION."  MORTON V. MANCARI, 417
U.S. 535, 551 - 552 (1974); SEE ALSO MORTON V. RUIZ, 415 U.S.,AT 236. 

ONCE RATIFIED BY ACT OF CONGRESS, THE PROVISIONS OF THE AGREEMENTS
BECOME LAW, AND LIKE TREATIES, THE SUPREME LAW OF THE LAND.  CONGRESS
COULD CONSTITUTIONALLY HAVE TERMINATED THE NORTHERN HALF OF THE
COLVILLE INDIAN RESERVATION ON THE TERMS AND CONDITIONS IN THE 1891
AGREEMENT, EVEN IF THAT AGREEMENT HAD NEVER BEEN MADE.  MATTZ V.
ARNETT, 412 U.S. 481 (1973).  THE DECISIONS IN CHOATE, PERRIN, AND
DICK, SUPRA, SETTLE THAT CONGRESS, BY ITS LEGISLATION RATIFYING THE
1891 AGREEMENT, CONSTITUTED THOSE PROVISIONS, INCLUDING ART. 6, "LAWS
OF THE UNITED STATES . . . MADE IN PURSUANCE" OF THE CONSTITUTION, AND
THE SUPREME LAW OF THE LAND, "SUPERIOR AND PARAMOUNT TO THE AUTHORITY
OF ANY STATE WITHIN WHOSE LIMITS ARE INDIAN TRIBES."  DICK V. UNITED
STATES, SUPRA, AT 353.  /10/

        III 

THE OPINION OF THE STATE SUPREME COURT ALSO HOLDS THAT IN ANY EVENT
THE IMPLEMENTING STATUTES CANNOT BE CONSTRUED TO RENDER WASH. REV. CODE
77.16.020 AND 77.16.030 INAPPLICABLE TO INDIAN BENEFICIARIES OF THE
AGREEMENT SINCE THE IMPLEMENTING STATUTES "MAKE NO REFERENCE TO THE
PROVISION (ART. 6) RELIED UPON BY THE APPELLANTS."  82 WASH.2D,AT 451,
511 P.2D,AT 1358.  THE OPINION REASONS, "IF IT WAS THOUGHT THAT STATE
REGULATION BUT NOT FEDERAL REGULATION WOULD CONSTITUTE AN ABRIDGEMENT,
AN EXPRESS PROVISION TO THAT EFFECT SHOULD HAVE BEEN INSERTED, BUT ONLY
AFTER THE CONSENT OF THE STATE HAD BEEN SOUGHT AND OBTAINED."  ID., AT
448, 511 P.2D,AT 1357.  THIS REASONING IS FATALLY FLAWED.  THE PROPER
INQUIRY IS NOT WHETHER THE STATE WAS OR SHOULD HAVE BEEN A CONSENTING
PARTY TO THE 1891 AGREEMENT, BUT WHETHER APPELLANTS ACQUIRED FEDERALLY
GUARANTEED RIGHTS BY CONGRESSIONAL RATIFICATION OF THE AGREEMENT. 
PLAINLY APPELLANTS ACQUIRED SUCH RIGHTS.  CONGRESS EXERCISED ITS
PLENARY CONSTITUTIONAL POWERS TO LEGISLATE THOSE FEDERALLY PROTECTED
RIGHTS INTO LAW IN ENACTING THE IMPLEMENTING STATUTES THAT RATIFIED THE
AGREEMENT.  NO CONGRESSIONAL PURPOSE TO SUBJECT THE PRESERVED RIGHTS TO
STATE REGULATION IS TO BE FOUND IN THE ACTS OR THEIR LEGISLATIVE
HISTORY.  RATHER, THE IMPLEMENTING STATUTES UNQUALIFIEDLY, "CARRIED)
INTO EFFECT" AND "RATIFIED)" THE EXPLICIT AND UNQUALIFIED PROVISION OF
ART. 6 THAT "THE RIGHT TO HUNT AND FISH . . . SHALL NOT BE TAKEN AWAY
OR IN ANYWISE ABRIDGED."  STATE QUALIFICATION OF THE RIGHTS IS
THEREFORE PRECLUDED BY FORCE OF THE SUPREMACY CLAUSE, AND NEITHER AN
EXPRESS PROVISION PRECLUDING STATE QUALIFICATION NOR THE CONSENT OF THE
STATE WAS REQUIRED TO ACHIEVE THAT RESULT. 

        IV 

FINALLY, THE OPINION OF THE STATE SUPREME COURT CONSTRUES ART. 6 AS
MERELY A PROMISE BY THE UNITED STATES THAT SO LONG AS IT RETAINED ANY
CEDED LAND AND ALLOWED OTHERS TO HUNT THEREON, INDIANS WOULD BE ALLOWED
ALSO TO HUNT THERE.  82 WASH.2D,AT 449 - 450, 511 P.2D,AT 1357 - 1358. 
BUT THE PROVISION OF ART. 6 THAT THE PRESERVED RIGHTS ARE NOT EXCLUSIVE
AND ARE TO BE ENJOYED "IN COMMON WITH ALL OTHER PERSONS," DOES NOT
SUPPORT THAT INTERPRETATION OR AFFECT THE SUPREMACY CLAUSE'S PRECLUSION
OF QUALIFYING STATE REGULATION.  NON-INDIANS ARE, OF COURSE, NOT
BENEFICIARIES OF THE PRESERVED RIGHTS AND THE STATE REMAINS WHOLLY FREE
TO PROHIBIT OR REGULATE NON-INDIAN HUNTING AND FISHING.  THE RATIFYING
LEGISLATION MUST BE CONSTRUED TO EXEMPT THE INDIANS' PRESERVED RIGHTS
FROM LIKE STATE REGULATION, HOWEVER, ELSE CONGRESS PRESERVED NOTHING
WHICH THE INDIANS WOULD NOT HAVE HAD WITHOUT THAT LEGISLATION.  FOR
CONSISTENCY WITH THE CANON THAT THE WORDING IS NOT TO BE CONSTRUED TO
THE PREJUDICE OF THE INDIANS MAKES IT IMPERMISSIBLE IN THE ABSENCE OF
EXPLICIT CONGRESSIONAL EXPRESSION, TO CONSTRUE THE IMPLEMENTING ACTS AS
"AN IMPOTENT OUTCOME TO NEGOTIATIONS AND A CONVENTION, WHICH SEEMED TO
PROMISE MORE AND GIVE THE WORD OF THE NATION FOR MORE."  UNITED STATES
V. WINANS, 198 U.S.,AT 380; PUYALLUP TRIBE V. DEPARTMENT OF GAME (P
YALLUP I), 391 U.S. 392, 397 - 398 (1968).  WINANS INVOLVED A TREATY
THAT RESERVED TO THE INDIANS IN THE AREA CEDED TO THE UNITED STATES
"THE RIGHT OF TAKING FISH AT ALL USUAL AND ACCUSTOMED PLACES, IN COMMON
WITH CITIZENS OF THE TERRITORY."  198 U.S.,AT 378.  PUYALLUP I
CONSIDERED A PROVISION THAT "(THE RIGHT OF TAKING FISH, AT ALL USUAL
AND ACCUSTOMED GROUNDS AND STATIONS, IS FURTHER SECURED TO SAID
INDIANS, IN COMMON WITH ALL CITIZENS OF THE TERRITORY . . .."  391
U.S.,  AT 395.  THE COURT HELD THAT RIGHTS SO PRESERVED "MAY, OF
COURSE, NOT BE QUALIFIED BY THE STATE . . .."  ID., AT 398; 198 U.S.,AT
384.  ARTICLE 6 PRESENTS AN EVEN STRONGER CASE SINCE CONGRESS'
RATIFICATION OF IT INCLUDED THE FLAT PROHIBITION THAT THE RIGHT "SHALL
NOT BE TAKEN AWAY OR IN ANYWISE ABRIDGED." 

      V 

IN PUYALLUP I, SUPRA, AT 398, WE HELD THAT ALTHOUGH, THESE RIGHTS
"MAY . . . NOT BE QUALIFIED BY THE STATE, . . . THE MANNER OF FISHING
(AND HUNTING), THE SIZE OF THE TAKE, THE RESTRICTION OF COMMERCIAL
FISHING (AND HUNTING), AND THE LIKE MAY BE REGULATED BY THE STATE IN
THE INTEREST OF CONSERVATION, PROVIDED THE REGULATION MEETS APPROPRIATE
STANDARDS AND DOES NOT DISCRIMINATE AGAINST THE INDIANS."  THE
"APPROPRIATE STANDARDS" REQUIREMENT MEANS THAT THE STATE MUST
DEMONSTRATE THAT ITS REGULATION IS A REASONABLE AND NECESSARY
CONSERVATION MEASURE, WASHINGTON GAME DEPT. V. PUYALLUP TRIBE, 414 U.S.
44 (1973); TULEE V. WASHINGTON, 315 U.S. 681, 684 (1942), AND THAT ITS
APPLICATION TO THE INDIANS IS NECESSARY IN THE INTEREST OF
CONSERVATION. 

THE UNITED STATES AS AMICUS CURIAE INVITES THE COURT TO ANNOUNCE
THAT STATE RESTRICTIONS "CANNOT ABRIDGE THE INDIANS' FEDERALLY
PROTECTED RIGHTS WITHOUT (THE STATE) DEMONSTRATING A COMPELLING NEED"
IN THE INTEREST OF CONSERVATION.  BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE 16.  WE HAVE NO OCCASION IN THIS CASE TO ADDRESS THIS QUESTION. 
THE STATE OF WASHINGTON HAS NOT ARGUED, LET ALONE ESTABLISHED, THAT
APPLYING THE BAN ON OUT-OF-SEASON HUNTING OF DEER BY THE INDIANS ON THE
LAND IN QUESTION IS IN ANY WAY NECESSARY OR EVEN USEFUL FOR THE
CONSERVATION OF DEER.  SEE HUNT V. UNITED STATES, 278 U.S. 96 (1928). 
/11/ 

THE JUDGMENT OF THE SUPREME COURT OF THE STATE OF WASHINGTON,
SUSTAINING APPELLANTS' CONVICTIONS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT UITH THIS OPINION. 

                                  IT IS SO ORDERED. 

/1/ THE APPELLANT HUSBAND IS AN ENROLLED MEMBER OF THE CONFEDERATED
TRIBES OF THE COLVILLE INDIAN RESERVATION.  TRIBES THAT FORMED THE
CONFEDERATED TRIBES INCLUDED THE COLVILLE, COLUMBIA, SAN POIL,
OKANOGAN, NEZ PERCE, LAKE, SPOKANE, AND COEUR D'ALENE.  APPELLANT WIFE
IS A CANADIAN INDIAN AND IS NOT ENROLLED IN THE UNITED STATES.  WE DO
NOT DEAL, HOWEVER, WITH WHETHER HER CASE IS FOR THAT REASON
DISTINGUISHABLE FROM HER HUSBAND'S SINCE THE STATE SUPREME COURT DREW
NO DISTINCTION BETWEEN THEM.  MOREOVER, APPELLEE STATE CONCEDED AT ORAL
ARGUMENT IN THIS COURT THAT REVERSAL OF THE HUSBAND'S CONVICTION WOULD
REQUIRE REVERSAL OF THE WIFE'S CONVICTION.  TR. OF ORAL ARG. 22. 

/2/ WASH. REV. CODE 77.16.020 PROVIDES IN PERTINENT PART: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO HUNT . . . GAME ANIMALS . .
. DURING THE RESPECTIVE CLOSED SEASONS THEREFOR . . .. 

"ANY PERSON WHO HUNTS . . . DEER IN VIOLATION OF THIS SECTION IS
GUILTY OF A GROSS MISDEMEANOR . . .." 


"IT SHALL BE UNLAWFUL FOR ANY PERSON TO HAVE IN HIS POSSESSION . . .
ANY . . . GAME ANIMAL . . . DURING THE CLOSED SEASON . . .. 

"ANY PERSON WHO HAS IN HIS POSSESSION . . . ANY . . . DEER . . . IN
VIOLATION OF THE FOREGOING PORTION OF THIS SECTION IS GUILTY OF A GROSS
MISDEMEANOR . . .." 

/3/ THE ORIGINAL RESERVATION WAS OVER 3 MILLION ACRES "BOUNDED ON
THE EAST AND SOUTH BY THE COLUMBIA RIVER, ON THE WEST BY THE OKANAGAN
RIVER, AND ON THE NORTH BY THE BRITISH POSSESSIONS."  EXECUTIVE ORDER
OF JULY 2, 1872, 1 C. KAPPLER, INDIAN AFFAIRS, LAWS AND TREATIES 916
(2D ED. 1904); SEE ALSO SEYMOUR V. SUPERINTENDENT, 368 U.S. 351, 354
(1962). 

/4/ ARTICLE 6 PROVIDES IN FULL: 

"IT IS STIPULATED AND AGREED THAT THE LANDS TO BE ALLOTTED AS
AFORESAID TO SAID INDIANS AND THE IMPROVEMENTS THEREON SHALL NOT BE
SUBJECT, WITHIN THE LIMITATIONS PRESCRIBED BY LAW, TO TAXATION FOR ANY
PURPOSE, NATIONAL, STATE OR MUNICIPAL; THAT SAID INDIANS SHALL ENJOY
WITHOUT LET OR HINDRANCE THE RIGHT AT ALL TIMES FREELY TO USE ALL WATER
POWER AND WATER COURSES BELONGING TO OR CONNECTED WITH THE LANDS TO BE
SO ALLOTTED, AND THAT THE RIGHT TO HUNT AND FISH IN COMMON WITH ALL
OTHER PERSONS ON LANDS NOT ALLOTTED TO SAID INDIANS SHALL NOT BE TAKEN
AWAY OR IN ANYWISE ABRIDGED." 

THE STATUTS OF THE SOUTHERN HALF OF THE COLVILLE RESERVATION WAS
CONSIDERED IN SEYMOUR V. SUPERINTENDENT, SUPRA.  AT ISSUE IN THIS CASE
ARE THE RESIDUAL RIGHTS TO HUNT AND FISH ON THE NORTHERN HALF PRESERVED
BY THE ABOVE ART. 6. 

/5/ THE COLVILLE INDIAN COMMISSION WAS COMPOSED OF CHAIRMAN
FULLERTON AND COMMISSIONERS DURFUR AND PAYNE.  THE COMMISSION FIRST MET
ON MAY 7, 1891, WITH REPRESENTATIVES OF THE CONFEDERATED TRIBES AT
NESPELEM, WASHINGTON, ON THE RESERVATION TO DISCUSS "A SALE OF A PART
OF RESERVATION . . .."  DURING SUCCEEDING DAYS, KO-MO-DEL-KIAH, CHIEF
OF THE SAN POIL, STRONGLY OPPOSED THE SALE OF ANY PART OF THE
RESERVATION, BUT ANTOINE, CHIEF OF THE OKANOGAN AND GREAT GRANDFATHER
OF APPELLANT ALEXANDER ANTOINE, MOSES, CHIEF OF THE COLUMBIA, AND
JOSEPH, CHIEF OF THE NEZ PERCE, FAVORED THE PROPOSED 1891 AGREEMENT AS
FAIR.  AT A LATER MEETING ON MAY 23 AT MARCUS ON THE RESERVATION,
BARNABY, CHIEF OF THE COLVILLE, AND THE CHIEF OF THE LAKE AGREED TO THE
PROPOSED SALE.  MINUTES OF COLVILLE INDIAN COMMISSION CONCERNING
NEGOTIATION FOR THE 1891 AGREEMENT OF SALE, NATIONAL ARCHIVES DOCUMENT
21167. 

/6/ THE DELAY IN APPROVAL WAS OCCASIONED BY THE INITIAL RELUCTANCE
OF THE HOUSE TO RATIFY THE AGREEMENT WITHOUT CERTAIN CHANGES, 23
CONG.REC.  3840 (1892), AND BY DOUBTS RAISED IN THE SENATE WHETHER THE
INDIANS HAD TITLE TO THE RESERVATION, SINCE IT WAS CREATED BY EXECUTIVE
ORDER.  SEE S. REP. NO. 664, 52D CONG., 1ST SESS., 2 (1892).  THE
INTERIOR DEPARTMENT REPORTED SOME YEARS LATER THAT THE DOUBTS WERE
UNFOUNDED.  S. REP. NO. 2561, 59TH CONG., 1ST SESS., 137, 139 (1906). 
A BILL PASSED BY THE HOUSE IN 1891 REPLACED THE $1,500,000 LUMP SUM
WITH A PAYMENT OF $1.25 PER ACRE, TO BE PAID FROM THE PROCEEDS OF SALES
OF LAND OPENED FOR HOMESTEADING.  THE SENATE DISAGREED, HOWEVER, AND
PASSED A BILL THAT ULTIMATELY BECAME THE ACT OF JULY 1, 1892.  THAT ACT
MAKES NO MENTION EITHER OF THE CONSIDERATION TO BE PAID, OR OF THE
HUNTING AND FISHING RIGHTS PRESERVED.  MANY PROTESTS WERE THEREUPON
MADE THAT CONGRESS HAD FAILED TO LIVE UP TO THE TERMS OF THE
AGREEMENT.  THESE INCLUDED PROTESTS FROM THE DEPARTMENT OF THE
INTERIOR, S. REP. NO. 2561, 59TH CONG., 1ST SESS., 137, 139, AND FROM
CHAIRMAN F,LL RTO4, WHO HAD BECOME CHIEF JUSTICE OF THE SUPREME COURT
OF WASHINGTON.  IN A LETTER, S. REP. NO. 2561, SUPRA, AT 140, THE CHIEF
JUSTICE SAID: 

"IT MAY BE THAT MY RELATIONS TO THIS TRANSACTION HAVE SOMEWHAT
WARPED MY JUDGMENT, BUT WHEN I RECALL THE IMPASSIONED APPEALS MADE BY
SOME OF THE AGED MEMBERS OF THESE REMNANT BANDS, CALLING UPON THEIR
PEOPLE AND UPON THE HEADS OF THE TRIBES NOT TO SIGN AWAY THEIR LANDS,
EVEN THOUGH THE COMPENSATION OFFERED WAS AMPLE, ON THE GROUND THAT IT
WAS THEIR LAST HERITAGE AND THEIR LAST TIE TO EARTH, I CAN NOT HELP A
FEELING OF BITTERNESS WHEN I REMEMBER THAT THE GOVERNMENT, WHOM WE
REPRESENTED TO THEM AS BEING JUST AND HONORABLE, TOOK AWAY THEIR LAND
WITHOUT EVEN THE SOLACE OF COMPENSATION." 

THE MANY PROTESTS FINALLY BORE FRUIT AND CONGRESS ENACTED THE ACT OF
JUNE 21, 1906, AND THE FIVE SUBSEQUENT INSTALLMENT ACTS.  THE COLVILLE
CLAIMS REQUIRED THE SERVICES OF 16 LAWYERS FROM THE STATES OF
WASHINGTON, PENNSYLVANIA, AND GEORGIA, AND THE DISTRICT OF COLUMBIA. 
THEY RECOVERED JUDGMENTS AGAINST THE UNITED STATES FOR THEIR SERVICES
IN THE COURT OF CLAIMS.  BUTLER AND VALE V. UNITED STATES, 43 CT.CL.
497 (1908). 

/7/ ARTICLE VI, CL. 2, OF THE CONSTITUTION, THE SUPREMACY CLAUSE,
PROVIDES: 

"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." 

/8/ THE ACT OF MARCH 3, 1871, 16 STAT. 544, 566, NOW CODIFIED AS 25
U.S.C. 71, PROVIDES: 

"NO INDIAN NATION OR TRIBE WITHIN THE TERRITORY OF THE UNITED STATES
SHALL BE ACKNOWLEDGED OR RECOGNIZED AS AN INDEPENDENT NATION, TRIBE, OR
POWER WITH WHOM THE UNITED STATES MAY CONTRACT BY TREATY; BUT NO
OBLIGATION OF ANY TREATY LAWFULLY MADE AND RATIFIED WITH ANY SUCH
INDIAN NATION OR TRIBE PRIOR TO MARCH 3, 1871, SHALL BE INVALIDATED OR
IMPAIRED." 

/9/ FORMER COMMISSIONER OF INDIAN AFFAIRS WALKER SUMMARIZED THE
STRUGGLE AS FOLLOWS: 

"IN 1871, HOWEVER, THE INSOLENCE OF CONSCIOUS STRENGTH, AND THE
GROWING JEALOUSY OF THE HOUSE OF REPRESENTATIVES TOWARDS THE
PREROGATIVE--ARROGATED BY THE SENATE--OF DETERMINING, IN CONNECTION
WITH THE EXECUTIVE, ALL QUESTION OF INDIAN RIGHT AND TITLE, AND OF
COMMITTING THE UNITED STATES INCIDENTALLY TO PECUNIARY OBLIGATIONS
LIMITED ONLY BY ITS OWN DISCRETION, FOR WHICH THE HOUSE SHOULD BE BOUND
TO MAKE PROVISION WITHOUT INQUIRY, LED TO THE ADOPTION, AFTER SEVERAL
SEVERE PARLIAMENTARY STRUGGLES, OF THE DECLARATION . . . THAT
'HEREAFTER NO INDIAN NATION OR TRIBE WITHIN THE TERRITORY OF THE UNITED
STATES SHALL BE ACKNOWLEDGED OR RECOGNIZED AS AN INDEPENDENT NATION,
TRIBE, OR POWER, WITH WHOM THE UNITED STATES MAY CONTRACT BY TREATY.'" 
FEDERAL INDIAN LAW 211 - 212, CITING F. WALKER, THE INDIAN QUESTION
(1874). 

/10/ WASH. REV. CODE 37.12.060, WHICH ASSUMES LIMITED JURSIDICTION
OVER INDIANS, EXPRESSLY PROVIDES THAT THE LAW SHALL NOT DEPRIVE ANY
INDIAN OF RIGHTS SECURED BY AGREEMENT. 

"NOTHING IN THIS CHAPTER . . . SHALL DEPRIVE ANY INDIAN OR ANY
INDIAN TRIBE, BANKD, OR COMMUNITY OF ANY RIGHT, PRIVILEGE, OR IMMUNITY
AFFORDED UNDER FEDERAL TREATY, AGREEMENT, STATUTE, OR EXECUTIVE ORDER
WITH RESPECT TO INDIAN LAND GRANTS, HUNTING, TRAPPING, OR FISHING OR
THE CONTROL, LICENSING, OR REGULATION THEREOF."  (EMPHASIS ADDED.) 

/11/ APPELLANTS APPARENTLY CLAIM NO RIGHT TO HUNT ON FENCED PRIVATE
PROPERTY.  THE STATE SUPREME COURT STATED: 

"COUNSEL . . . CONCEDED IN ORAL ARGUMENT THAT THE PRESENT OWNERS OF
LAND IN THE NORTHERN HALF OF THE RESERVATION HAVE THE RIGHT TO FENCE
THEIR LAND AND EXCLUDE HUNTERS.  NEVERTHELESS THEY MAINTAIN THAT STATE
REGULATION OF THE RIGHT TO HUNT IS AN ABRIDGMENT OF THAT RIGHT . . .." 
82 WASH.2D 440, 448, 511 P.2D 1351, 1356 (1973). 

A CLAIM OF ENTITLEMENT TO HUNT ON FENCED OR POSTED PRIVATE LAND
WITHOUT PRIOR PERMISSION OF THE OWNER WOULD RAISE SERIOUS QUESTIONS NOT
PRESENTED IN THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

I AGREE WITH THE OPINION OF THE COURT THAT CONGRESS RATIFIED THE
CESSION AGREEMENT TOGETHER WITH ALL THE RIGHTS SECURED BY THE INDIANS,
THUS PUTTING THE AGREEMENT UNDER THE UMBRELLA OF THE SUPREMACY CLAUSE. 

IN 1872 PRESIDENT GRANT, BY EXECUTIVE ORDER.  /1/ ESTABLISHED A
RESERVATION FOR INDIAN TRIBES WHICH CAME TO BE KNOWN AS THE COLVILLE
CONFEDERATED TRIBES.  BY THE ACT OF AUGUST 19, 1890, /2/ A COMMISSION
WAS APPOINTED BY THE PRESIDENT TO NEGOTIATE WITH THE TRIBES FOR "THE
CESSION OF SUCH PORTION OF SAID RESERVATION AS SAID INDIANS MAY BE
WILLING TO DISPOSE OF . . .."  ON MAY 9, 1891, THE COMMISSION ENTERED
INTO AN AGREEMENT WITH THE TRIBES BY WHICH THE LATTER CEDED TO THE
UNITED STATES "ALL THEIR RIGHT, TITLE, CLAIM AND INTEREST IN " A TRACT
OF LAND CONSTITUTING APPROXIMATELY THE NORTHERN HALF OF THE
RESERVATION.  ARTICLE 6 OF THE AGREEMENT, HOWEVER, PROVIDED THAT "THE
RIGHT TO HUNT AND FISH IN COMMON WITH ALL OTHER PERSONS ON LANDS NOT
ALLOTTED TO SAID INDIANS SHALL NOT BE TAKEN AWAY OR IN ANYWISE
ABRIDGED."  (ITALICS ADDED.) 

IN 1892 THE CONGRESS PASSED AN ACT RESTORING THE NORTHERN TRACT TO
THE PUBLIC DOMAIN AND OPENING IT TO SETTLEMENT.  /3/ THE AGREEMENT HAD
PROMISED THE INDIANS PAYMENT OF $1,500,000 IN CASH BY INSTALLMENTS. 
THE 1892 ACT MADE NO REFERENCE TO THIS PROMISE OR TO THE RIGHTS TO FISH
AND HUNT.  THEREFORE THERE WAS AGITATION FOR FURTHER ACTION BY
CONGRESS.  IN 1906 AND SUCCEEDING YEARS, CONGRESS EVENTUALLY ACTED,
AUTHORIZING AND APPROPRIATING THE MONEY IN FIVE INSTALLMENTS.  /4/ EACH
ACT IS ESSENTIALLY THE SAME, APPROPRIATING THE SUM OF $300,000: 

     "IN PART PAYMENT TO THE INDIANS RESIDING ON THE COLVILLE

  RESERVATION FOR THE CESSION BY SAID INDIANS TO THE UNITED STATES

  OF ONE MILLION FIVE HUNDRED THOUSAND ACRES OF LAND OPENED TO

  SETTLEMENT BY (THE 1892 ACT), . . . BEING A PART OF THE FULL SUM

  SET ASIDE . . . IN PAYMENT FOR SAID LAND UNDER THE TERMS OF THE

  ACT APPROVED JUNE TWENTY-FIRST, NINETEEN HUNDRED AND SIX,

  RATIFYING THE AGREEMENT CEDING SAID LAND TO THE UNITED STATES

  UNDER DATE OF MAY NINTH, EIGHTEEN HUNDRED AND NINETY-ONE . . .." 

  /5/ (ITALICS ADDED.) 

THE AGREEMENT AND ITS RATIFICATION WERE MADE AFTER THE PRACTICE OF
MAKING TREATIES WITH INDIAN TRIBES ENDED.  /6/ YET "THE LAWS OF THE
UNITED STATES" AS WELL AS "ALL TREATIES" ARE COVERED BY THE SUPREMACY
CLAUSE OF THE CONSTITUTION, ART. VI, CL. 2.  WE SO HELD RECENTLY IN
MORTON V. MANCARI, 417 U.S. 535 (1974); MORTON V. RUIZ, 415 U.S. 199
(1974).  AND SEE CHOATE V. TRAPP, 224 U.S. 665 (1912); PERRIN V. UNITED
STATES, 232 U.S. 478 (1914). 

THE PRESSURES ON CONGRESS TO LIVE UP TO ITS AGREEMENT WERE GREAT AND
ARE DISCUSSED IN S. REP. NO. 2561, 59TH CONG., 1ST SESS., 134 - 140. 
WOULD CONGRESS STAND BY THE "AGREEMENT" OF 1891?  THE HEAD OF THE
COMMISSION THAT NEGOTIATED THE AGREEMENT WITH THE INDIANS WAS MARK A.
FULLERTON, WHO IN 1904 WAS CHIEF JUSTICE OF THE SUPREME COURT OF
WASHINGTON.  HE STATED HIS VIEWS: 

"I CAN NOT UNDERSTAND WHY THE RIGHT OF THE INDIANS TO THIS LAND IS
NOT JUST AS SACRED AS IT WOULD HAVE BEEN HAD IT BEEN AWARDED TO THEM
UNDER THE MOST SOLEMN TREATY.  WHEN THEY ENTERED UPON THE RESERVATION
THEY GAVE UP FOREVER LAND TO WHICH THEY HAD TITLE AS ABSOLUTE AS ANY
BAND OF INDIANS EVER HAD TO ANY LAND; AND EVEN THOUGH THE EXCHANGE WAS
A FORCED ONE, YET EXCHANGE IT WAS, AND THE GOVERNMENT WAS, UNDER ITS
PROMISE, AS I BELIEVE, IN ALL HONOR AND RIGHT BOUND TO RESPECT IT AS AN
EXCHANGE AND PROTECT THE INDIANS IN THEIR TITLE ACCORDINGLY.  LEGALLY,
THEREFORE, I CAN SEE NO DIFFERENCE BETWEEN THE RIGHTS OF THESE INDIANS
TO COMPENSATION FOR THE LAND TAKEN AND THE RIGHTS OF THE PUYALLUP, THE
WYAKIMAS, AND THE NEZ PERCES TO THE LANDS ON THEIR RESERVATIONS WHICH
THE GOVERNMENT HAS TAKEN, AND WHICH THE RIGHT TO COMPENSATION UAS NOT
EVEN QUESTIONED; AND, MORALLY, CERTAINLY IT WOULD BE HARD TO MAKE A
DISTINCTION. 

     "IT MAY BE THAT MY RELATIONS TO THIS TRANSACTION HAVE SOMEWHAT

  WARPED MY JUDGMENT, BUT WHEN I RECALL THE IMPASSIONED APPEALS

  MADE BY SOME OF THE AGED MEMBERS OF THESE REMNANT BANDS, CALLING

  UPON THEIR PEOPLE AND UPON THE HEADS OF THE TRIBES NOT TO SIGN

  AWAY THEIR LANDS, EVEN THOUGH THE COMPENSATION OFFERED WAS AMPLE,

  ON THE GROUND THAT IT WAS THEIR LAST HERITAGE AND THEIR LAST TIE

TO EARTH, I CAN NOT HELP A FEELING OF BITTERNESS WHEN I REMEMBER

  THAT THE GOVERNMENT, WHOM WE REPRESENTED TO THEM AS BEING JUST

  AND HONORABLE, TOOK AWAY THEIR LAND WITHOUT EVEN THE SOLACE OF

  COMPENSATION."  /7/ 

THE "RIGHT TO HUNT AND FISH IN COMMON WITH ALL OTHER PERSONS ON
LANDS NOT ALLOTTED TO SAID INDIANS" PLAINLY COVERS LAND CEDED AND HELD
AS PUBLIC LANDS AND ALSO LAND CEDED AND TAKEN UP BY HOMESTAEDERS, FOR
THE RESERVATION OF THE "RIGHT" CONTAINS NO EXCEPTION.  AS TO ALL SUCH
LANDS THE 1891 AGREEMENT SEEMS CLEAR--THE HUNTING AND FISHING RIGHT
"SHALL NOT BE TAKEN AWAY OR IN ANYWISE ABRIDGED."  AS THE SOLITICTOR
GENERAL SAYS, THAT IS "STRONG LANGUAGE."  IT HAS LONG BEEN SETTLED THAT
A GRANT OF RIGHTS--IN THE FIRST CASE, FISHING RIGHTS--ON AN EQUAL
FOOTING WITH CITIZENS OF THE UNITED STATES WOULD NOT BE CONSTRUED AS A
GRANT ONLY OF SUCH RIGHTS AS OTHER INHABITANTS HAD:  AS STATED IN
UNITED STATES V. WINANS, 198 U.S. 371, 380 (1905):  "THIS IS CERTAINLY
AN IMPOTENT OUTCOME TO NEGOTIATIONS AND A CONVENTION, WHICH SEEMED TO
PROMISE MORE AND GIVE THE WORD OF THE NATION FOR MORE."  THAT WAS OUR
VIEW IN PUYALLUP TRIBE V. DEPARTMENT OF GAME, 391 U.S. 392 (1968).  A
"RIGHT" WHICH THE FEDERAL GOVERNMENT GRANTS AN INDIAN MAY "NOT BE
QUALIFIED OR CONDITIONED BY THE STATE," ID., AT 399. 

I AGREE WITH THE COURT THAT CONSERVATION MEASURES, APPLICABLE TO
ALL, ARE AVAILABLE TO THE STATE, ID., AT 398 - 403; BUT DISCRIMINATION
AGAINST THE INDIANS BY CONSERVATION MEASURES IS NOT PERMISSIBLE,
WASHINGTON GAME DEPT. V. PUYALLUP TRIBE, 414 U.S. 44, 48 (1973).  IN
ANY EVENT NO CONSERVATION INTEREST HAS BEEN TENDERED HERE.  THE RECORD
IN THIS CASE IS DEVOID OF ANY FINDINGS AS TO CONSERVATION NEEDS OR
CONSERVATION METHODS.  THE STATE BOLDLY CLAIMS THAT ITS POWER TO EXACT
A HUNTING LICENSE FROM ALL HUNTERS QUALIFIES EVEN THE INDIAN'S RIGHT TO
HUNT GRANTED BY CONGRESS, IRRESPECTIVE OF ANY CONSERVATION NEED.  A
STATE MAY DO THAT WHEN IT COMES TO NON-INDIANS OR TO INDIANS WITH NO
FEDERAL HUNTING RIGHTS, LACOSTE V. DEPT. OF CONSERVATION, 263 U.S. 545,
549 (1924).  BUT INDIANS WITH FEDERAL HUNTING "RIGHTS" ARE QUITE
DIFFERENT. 

AN EFFORT IS MADE TO RESTRICT THESE HUNTING RIGHTS TO PUBLIC LANDS,
NOT TO TRACTS CEDED BY THIS AGREEMENT AND TAKEN UP BY PRIVATE PARTIES. 
THE AGREEMENT, HOWEVER, SPEAKS ONLY OF THE CEDED TRACT, NOT THE
ULTIMATE DISPOSITION OF THE SEVERAL PARTS OF IT.  WE WOULD STRAIN HARD
TO FIND AN IMPLIED EXCEPTION FOR PARCELS IN THE CEDED TRACT THAT ENDED
IN PRIVATE OWNERSHIP.  THE GENERAL RULE OF CONSTRUCTION GOVERNING
CONTRACTS OR AGREEMENTS WITH INDIANS IS APT HERE: 

"THE CONSTRUCTION, INSTEAD OF BEING STRICT, IS LIBERAL; DOUBTFUL
EXPRESSIONS, INSTEAD OF BEING RESOLVED IN FAVOR OF THE UNITED STATES,
ARE TO BE RESOLVED IN FAVOR OF A WEAK AND DEFENSELESS PEOPLE, WHO ARE
WARDS OF THE NATION, AND DEPENDENT WHOLLY UPON ITS PROTECTION AND GOOD
FAITH.  THIS RULE OF CONSTRUCTION HAS BEEN RECOGNIZED, WITHOUT
EXCEPTION, FOR MORE THAN A HUNDRED YEARS . . .."  CHOATE V. TRAPP, 224
U.S.,AT 675. 

WHETHER THE RESULT WOULD BE DIFFERENT IF THE CONTEST WERE BETWEEN
THE OWNER OF THE PRIVATE TRACT AND THE INDIAN IS A QUESTION THAT NEED
NOT BE REACHED.  WE HAVE HERE ONLY AN ISSUE INVOLVING THE POWER OF A
STATE TO IMPOSE A REGULATORY RESTRAINT UPON A RIGHT WHICH CONGRESS
BESTOWED ON THESE INDIANS.  SUCH AN ASSERTION OF STATE POWER MUST FALL
BY REASON OF THE SUPREMACY CLAUSE. 

/1/ EXECUTIVE ORDER OF JULY 2, 1872, 1 C. KAPPLER, INDIAN AFFAIRS,
LAWS AND TREATIES 916 (2D ED. 1904). 

/2/ 26 STAT. 355. 

/3/ 27 STAT. 62. 

/4/ THE AUTHORIZATION APPEARS AT 34 STAT. 325, 377 - 378.  THE
APPROPRIATIONS APPEAR AT 34 STAT. 1015, 1050 - 1051; 35 STAT. 70, 96;
35 STAT. 781, 813; 36 STAT. 269, 286; AND 36 STAT. 1058, 1075. 

/5/ THE QUOTED LANGUAGE IS FROM THE 1907 APPROPRIATIONS ACT, 34

  STAT. 1050 - 1051. 

/6/ SEE ACT OF MAR. 3, 1871, 16 STAT. 544, 566, NOW CODIFIED AS 25

  U.S.C. 71: 

"NO INDIAN NATION OR TRIBE WITHIN THE TERRITORY OF THE UNITED STATES
SHALL BE ACKNOWLEDGED OR RECOGNIZED AS AN INDEPENDENT NATION, TRIBE, OR
POWER WITH WHOM THE UNITED STATES MAY CONTRACT BY TREATY; BUT NO
OBLIGATION OF ANY TREATY LAWFULLY MADE AND RATIFIED WITH ANY SUCH
INDIAN NATION OR TRIBE PRIOR TO MARCH 3, 1871, SHALL BE INVALIDATED OR
IMPAIRED." 

/7/ S.REP.  NO. 2561, 59TH CONG., 1ST SESS., 140. 

MR. JUSTICE REHNQUIST, WITH WHOM MR. JUSTICE STEWART JOINS,
DISSENTING. 

I DO NOT AGREE WITH THE COURT'S CONCLUSION, ANTE, AT 198, THAT "(C)
ONGRESSIONAL APPROVAL WAS GIVEN" TO THE PROVISIONS OF ART. 6 OF THE
AGREEMENT OF MAY 9, 1891. 

THE SUPREMACY CLAUSE OF THE CONSTITUTION SPECIFIES BOTH "LAWS" AND
"TREATIES" AS ENACTMENTS WHICH ARE THE SUPREME LAW OF THE LAND, "ANY
THING IN THE CONSTITUTION OR LAWS OF ANY STATE TO THE CONTRARY
NOTWITHSTANDING."  IF THE GAME LAWS ENACTED BY THE STATE OF WASHINGTON,
CONTAINING CUSTOMARY PROVISIONS RESPECTING SEASONS IN WHICH DEER MAY BE
HUNTED, ARE INVALID UNDER THE SUPREMACY CLAUSE, THEY MUST BE SO BY
VIRTUE OF EITHER A TREATY OR A LAW ENACTED BY CONGRESS.  CONCEDEDLY THE
AGREEMENT OF 1891, BETWEEN COMMISSIONERS APPOINTED BY THE PRESIDENT AND
MEMBERS OF THE COLVILLE CONFEDERATED TRIBES WAS NOT A TREATY; IT WAS
NOT INTENDED TO BE SUCH, AND CONGRESS HAD EXPLICITLY PROVIDED 20 YEARS
EARLIER THAT INDIAN TRIBES WERE NOT TO BE CONSIDERED AS INDEPENDENT
NATIONS WITH WHICH THE UNITED STATES COULD DEAL UNDER THE TREATY
POWER.  WASHINGTON'S GAME LAWS, THEREFORE, CAN ONLY BE INVALID BY
REASON OF SOME LAW ENACTED BY CONGRESS. 

THE COURT'S OPINION REFERS US TO THE ACT OF CONGRESS OF JUNE 21,
1906, WHICH AUTHORIZED MONETARY COMPENSATION TO THE COLVILLES FOR THE
TERMINATION OF THE NORTHERN HALF OF THEIR RESERVATION, AND TO A SERIES
OF APPROPRIATION MEASURES ENACTED DURING THE FOLLOWING FIVE YEARS. 
THERE IS, HOWEVER, NOT ONLY SYLLABLE IN ANY OF THESE ACTS ABOUT INDIAN
HUNTING OR FISHING RIGHTS, AND IT IS FAIR TO SAY THAT A MEMBER OF
CONGRESS VOTING FOR OR AGAINST THEM WOULD NOT HAVE HAD THE REMOTEST
IDEA, EVEN FROM THE MOST CAREFUL OF READINGS, THAT THEY WOULD PRESERVE
INDIAN HUNTING AND FISHING RIGHTS.  BUT BECAUSE THE LANGUAGE IN THE ACT
OF 1906 STATES THAT IT WAS ENACTED FOR THE PURPOSE OF "CARRYING OUT"
THE AGREEMENT OF 1891, AND BECAUSE LANGUAGE IN SUBSEQUENT
APPROPRIATIONS ACTS DESCRIBED THE ACT OF 1906 AS "RATIFYING" THE
AGREEMENT OF 1891, THE COURT CONCLUDES THAT CONGRESS ENACTED AS
SUBSTANTIVE LAW ALL 12 ARTICLES OF THE AGREEMENT. 

THE COURT RELIES ON THREE EARLIER DECISIONS OF THIS COURT AS
SETTLING THE PROPOSITION THAT CONGRESS COULD LEGISLATIVELY RATIFY THE
1891 AGREEMENT, AND THAT ONCE ACCOMPLISHED, THE "LEGISLATION RATIFYING
THE 1891 AGREEMENT, CONSTITUTED THOSE PROVISIONS . . . 'LAWS OF THE
UNITED ST TES . . . IN PURSUANCE' OF THE CONSTITUTION, AND THE SUPREME
LAW OF THE LAND."  ANTE, AT 204.  CONGRESS COULD UNDOUBTEDLY HAVE
ENACTED THE PROVISIONS OF THE 1891 AGREEMENT, BUT THE CRITICAL QUESTION
IS WHETHER IT DID SO.  FAR FROM SUPPORTING THE RESULT REACHED BY THE
COURT IN THIS CASE, THE DECISIONS OF THIS COURT IN CHOATE V. TRAPP, 224
U.S. 665 (1912), PERRIN V. UNITED STATES, 232 U.S. 478 (1914), AND DICK
V. UNITED STATES, 208 U.S. 340 (1908), SHOW INSTEAD HOW VIRTUALLY
DEVOID OF SUPPORT IN EITHER PRECEDENT OR REASON THAT RESULT IS. 

EACH OF THOSE CASES DID INVOLVE AN AGREEMENT NEGOTIATED BETWEEN
COMMISSIONERS REPRESENTING THE UNITED STATES AND INDIAN BANDS AND
TRIBES.  EACH OF THE AGREEMENTS WAS HELD TO HAVE BEEN RATIFIED BY
CONGRESS, AND ITS SUBSTANTIVE PROVISIONS TO HAVE THEREBY BEEN MADE
LAW.  BUT THE CONTRAST WITH THE MANNER IN WHICH CONGRESS ACCOMPLISHED
RATIFICATION IN THOSE CASES, AND THE MANNER IN WHICH IT ACTED IN THIS
CASE, IS GREAT INDEED. 

CHOATE INVOLVED THE ATOKA AGREEMENT NEGOTIATED BETWEEN THE DAWES
COMMISSION AND CHOCTAW AND CHICKASAW REPRESENTATIVES IN 1897.  THE
FOLLOWING YEAR, CONGRESS ENACTED THE CURTIS ACT, 30 STAT. 495, THE
RELEVANT PROVISIONS OF 29 OF WHICH ARE AS FOLLOWS: 

     "THAT THE AGREEMENT MADE BY THE COMMISSION TO THE FIVE

  CIVILIZED TRIBES WITH COMMISSIONS REPRESENTING THE CHOCTAW AND

  CHICKASAW TRIBES OF INDIANS ON THE TWENTY-THIRD DAY OF APRIL,

  EIGHTEEN HUNDRED AND NINETY-SEVEN, AS HEREIN AMENDED, IS HEREBY

  RATIFIED AND CONFIRMED . . .."  30 STAT. 505. 

THE SECTION THEN PROCEEDS TO SET OUT IN HAEC VERBA THE FULL TEXT OF THE
ATOKA AGREEMENT. 

PERRIN V. UNITED STATES, SUPRA, INVOLVED THE SALE OF LIQUOR ON CEDED
LAND, CONTRARY TO PROHIBITION CONTAINED IN THE CESSION AGREEMENT
NEGOTIATED WITH THE SIOUX INDIANS IN DECEMBER 1892.  THAT AGREEMENT WAS
RATIFIED BY CONGRESS IN AN ACT OF AUGUST 15, 1894, 28 STAT. 286, 314,
IN WHICH CONGRESS USED MUCH THE SAME METHOD AS IT HAD EMPLOYED IN
CHOATE: 

     "SEC. 12.  THE FOLLOWING AGREEMENT, MADE BY . . . IS HEREBY

ACCEPTED, RATIFIED AND CONFIRMED." 

THEN FOLLOWED, WITHIN THE TEXT OF THE ACT OF CONGRESS ITSELF, THE
ARTICLES OF AGREEMENT IN HAEC VERBA.  LIKEWISE, RATIFICATION OF THE
AGREEMENT INVOLVED IN DICK, SUPRA, WAS ACCOMPLISHED BY EXPLICIT
STATUTORY LANGUAGE AND IN HAEC VERBA INCORPORATION OF THE ARTICLES OF
AGREEMENT. 

THE COURT TODAY TREATS THE ACT OF JUNE 21, 1906, AS SIMPLY ANOTHER
ONE OF THESE INSTANCES IN WHICH CONGRESS EXERCISED ITS POWER TO ELEVATE
MERE AGREEMENTS INTO THE SUPREME LAW OF THE LAND.  BUT IT HAS DONE SO
WITH LITTLE ATTENTION TO THE CRITICAL ISSUE, THAT OF WHETHER CONGRESS
ACTUALLY EXERCISED THIS POWER.  WHEREAS THE EXERCISE WAS MANIFEST IN
CHOATE, PERRIN, AND DICK, IT IS EVIDENCED IN THE PRESENT CASE BY
NOTHING MORE THAN LITTLE SCRAPS OF LANGUAGE, AMBIGUOUS AT BEST, IN
SEVERAL ACTS OF CONGRESS WHICH CONTAIN NOT A WORD OF THE LANGUAGE OF
ART. 6 OF THE 1891 AGREEMENT.  I THINK CONSIDERATION OF ALL OF THE
LEGISLATIVE MATERIALS, INCLUDING THE ACTUAL LANGUAGE USED BY CONGRESS
ON THE OCCASIONS WHEN IT SPOKE, RATHER THAN THE ELIDED EXCERPTS RELIED
UPON BY THE COURT, SHOW THAT THERE WAS NO RATIFICATION OF ART. 6. 

THE ORIGINAL COLVILLE RESERVATION WAS CREATED BY EXECUTIVE ORDER IN
1872.  IT CONSISTED OF OVER THREE MILLION ACRES LYING BETWEEN THE
OKANOGAN AND COLUMBIA RIVERS IN THE NORTHERN PART OF THE STATE OF
WASHINGTON.  IN 1890 CONGRESS CREATED A COMMISSION TO "NEGOTIATE WITH
SAID COLVILLE AND OTHER BANDS OF INDIANS ON SAID RESERVATION FOR THE
CESSION OF SUCH PORTION OF SAID RESERVATION AS SAID INDIANS MAY BE
WILLING TO DISPOSE OF, THAT THE SAME MAY BE OPEN TO WHITE SETTLEMENT." 
26 STAT. 336, 355.  THE FOLLOWING YEAR COMMISSIONERS APPOINTED BY THE
PRESIDENT MET WITH REPRESENTATIVES OF THE COLVILLE CONFEDERATED
TRIBES.  THE AGREEMENT OF MAY 9, 1891, WAS EXECUTED TO "GO INTO EFFECT
FROM AND AFTER ITS APPROVAL BY CONGRESS."     ARTICLE 1 OF THE
AGREEMENT PROVIDED THAT THE NORTERN HALF OF THE COLVILLE RESERVATION,
AS IT EXISTED UNDER THE EXECUTIVE ORDER OF 1872, SHOULD BE VACATED. 
ARTICLE 5 PROVIDED THAT "IN CONSIDERATION OF THE CESSION SURRENDER AND
RELINQUISHMENT TO THE UNITED STATES:  OF THE NORTHERN HALF OF THE
RESERVATION, THE UNITED STATES WOULD PAY TO MEMBERS OF THE TRIBE THE
SUM OF $1,500,000.  ARTICLE 6, QUOTED IN THE OPINION OF THE COURT,
CONTAINED PROVISIONS RESPECTING TAX EXEMPTION AND INDIAN HUNTING AND
FISHING RIGHTS.     THE AGREEMENT WAS PRESENTED TO THE 52D CONGRESS FOR
RATIFICATION, BUT THAT BODY ADAMANTLY REFUSED TO APPROVE IT.  THE
CHARACTERIZATION IN THE COURT'S OPINION OF THE ACT OF JULY 1, 1892, 27
STAT. 62, AS THE "FIRST" IN A SERIES OF STATUTES IN WHICH CONGRESSIONAL
APPROVAL WAS GIVEN TO THE AGREEMENT OF MAY 9, 1891, IS A BIT OF
HISTORICAL LEGERDEMAIN.  DOUBTS WERE EXPRESSED AS TO WHETHER THE
INDIANS HAD TITLE TO THE RESERVATION, SINCE IT HAD BEEN CREATED BY
EXECUTIVE ORDER, THUS AGAIN HIGHLIGHTING DISAGREEMENT BETWEEN THE
EXECUTIVE AND LEGISLATIVE BRANCHES AS TO HOW BEST TO DEAL WITH THE
INDIAN TRIBES.  1872. 

THE ACT OF JULY 1, 1892, VACATED THE NORTHERN HALF OF THE COLVILLE
RESERVATION, AS IT HAD BEEN ESTABLISHED BY PRESIDENT GRANT,
"NOTWITHSTANDING ANY EXECUTIVE ORDER OR OTHER PROCEEDING WHEREBY THE
SAME WAS SET APART AS A RESERVATION FOR ANY INDIANS OR BANDS OF
INDIANS," AND DECLARED THAT "THE SAME SHALL BE OPEN TO SETTLEMENT AND
ENTRY BY THE PROCLAMATION OF THE PRESIDENT OF THE UNITED STATES AND
SHALL BE DISPOSED OF UNDER THE GENERAL LAWS APPLICABLE TO THE
DISPOSITION OF PUBLIC LANDS IN THE STATE OF WASHINGTON."  27 STAT. 63. 
EACH INDIAN THEN RESIDING ON THE CEDED PORTION OF THE RESERVATION
SHOULD BE ENTITLED TO SELECT 80 ACRES OF THE CEDED LAND TO BE ALLOTTED
TO HIM IN SEVERALTY.  SECTION 5 OF THE ACT TRACKED ART. 3 OF THE
AGREEMENT, PROVIDING THAT INDIANS THEN RESIDING IN THE CEDED PORTION OF
THE RESERVATION SHOULD HAVE A RIGHT TO OCCUPY AND RESIDE ON ITS
REMAINING PARTS, IF THEY CHOSE THAT IN PREFERENCE TO RECEIVING AN
ALLOTMENT.  SECTION 6 OF THE ACT TRACKED ART. 4 OF THE AGREEMENT, AND
CONCERNED VARIOUS SCHOOL AND MILL SITES WITHIN THE CEDED PORTION. 

BUT CONSPICUOUS BY THEIR ABSENCE FROM THE ACT OF JULY 1, 1892, WERE
ANY PROVISION FOR THE PAYMENT OF THE $1,500,000, AND ANY REFERENCE
WHATSOEVER TO THE AGREEMENT'S PROVISIONS DEALING WITH HUNTING AND
FISHING RIGHTS AND IMMUNITY FROM TAXATION.  FAR FROM BEING THE "FIRST"
OF A SERIES OF ACTS RATIFYING THE ENTIRETY OF THE 1891 AGREEMENT, THE
ACT PROVIDED, IN 8: 

     "THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS

  RECOGNIZING TITLE OR OWNERSHIP OF SAID INDIANS TO ANY PART OF THE

  SAID COLVILLE RESERVATION, WHETHER THAT HEREBY RESTORED TO THE

  PUBLIC DOMAIN OR THAT STILL RESERVED BY THE GOVERNMENT FOR THEIR

  USE AND OCCUPANCY."  27 STAT. 64. 

THE ACT OF JULY 1, 1892, BECAME LAW WITHOUT THE SIGNATURE OF
PRESIDENT HARRISON.  MEMBERS OF THE COLVILLE CONFEDERATED TRIBES BECAME
JUSTIFIABLY ALARMED THAT IT HAD TERMINATED THE NORTHERN HALF OF THE
RESERVATION WITHOUT AUTHORIZING THE COMPENSATION FOR WHICH THEY HAD
BARGAINED.  AFTER A 14-YEAR CAMPAIGN, DESCRIBED IN DETAIL IN THE REPORT
OF BUTLER AND VALE V. UNITED STATES, 43 CT.CL. 497 (1908), THEY
OBTAINED CONGRESSIONAL RELIEF.  BUT THE RELIEF EMBODIED IN THE STATUTES
ENACTED IN 1906 AND SUBSEQUENT YEARS DID NOT AMOUNT TO A FULL ADOPTION
AND RATIFICATION OF THE 1891 AGREEMENT.  RATHER, THE DESCRIPTION OF THE
EFFORTS TO OBTAIN RELIEF, AS WELL AS THE LEGISLATION WHICH RESULTED,
DEMONSTRATES THAT THE INDIANS WERE CONCERNED ONLY WITH THE COMPENSATION
PROMISED BY THE 1891 AGREEMENT, AND NOT WITH WHATEVER ANCILLARY RIGHTS
WERE ACCORDED BY ITS ART. 6. 

THE FOLLOWING EXCERPTS FROM THE COURT OF CLAIMS OPINION, WHICH WOULD
APPEAR TO HAVE THE ADDED AUTHENTICITY THAT IS GIVEN BY CONTEMPORANEITY,
DESCRIBE SOME OF THE EVENTS: 

     "IN PURSUANCE OF THE (1891) AGREEMENT THE LANDS SO CEDED WERE

  BY ACT OF CONGRESS THROWN OPEN TO PUBLIC SETTLEMENT; BUT NO

  APPROPRIATION OF MONEY WAS MADE, AND THAT PART OF THE AGREEMENT

  PROVIDING FOR ITS PAYMENT WAS NEVER COMPLIED WITH UNTIL THE

  PASSAGE OF THE ACT OF JUNE 21, 1906.  THE INDIANS BECAME ANXIOUS

  AND, JUSTLY, QUITE SOLICITOUS.  THEIR APPEALS TO THE CONGRESS

  SUBSEQUENT TO THEIR AGREEMENT WAS MET IN 1892 BY AN ADVERSE

  REPORT FROM THE SENATE COMMITTEE ON INDIAN AFFAIRS, IN WHICH

  THEIR RIGHT TO COMPENSATION AS PER AGREEMENT WAS DIRECTLY

  CHALLENGED BY A MOST POSITIVE DENIAL OF THEIR TITLE TO THE LANDS

  IN QUESTION. 

   "IN MAY, 1894, THE SAID COLVILLE INDIANS ENTERED INTO A

  CONTRACT WITH LEVI MAISH, OF PENNSYLVANIA, AND HUGH H. GORDON, OF

  GEORGIA, ATTORNEYS AND COUNSELORS AT LAW, BY THE TERMS OF WHICH

  THE SAID ATTORNEYS WERE TO PROSECUTE THEIR SAID CLAIM AGAINST THE

  UNITED STATES AND RECEIVE AS COMPENSATION THEREFOR 15 PER CENT OF

  WHATEVER AMOUNT THEY MIGHT RECOVER . . ..  NOTHING WAS

  ACCOMPLISHED FOR THE INDIANS UNDER THE MAISH-GORDON CONTRACT. 

  NOTWITHSTANDING ITS EXPIRATION, HOWEVER, A NUMBER OF ATTORNEYS

  CLAIM TO HAVE RENDERED EFFICIENT SERVICES AND TO HAVE

  ACCOMPLISHED, BY THE PERMISSION AND AUTHORITY OF THE CONGRESS AND

THE COMMITTEES THEREOF, THE FINAL COMPLIANCE WITH THE AGREEMENT

  OF 1891 AND SECURED BY THE ACT OF JUNE 21, 1906, AN APPROPRIATION

  COVERING THE MONEY CONSIDERATION MENTIONED IN SAID AGREEMENT." 
43

  CT.CL.,AT 514 - 515 (EMPHASIS ADDED). 

THE AGREEMENT WHICH FORMED THE BASIS OF THE SUIT IN BUTLER AND VAIL
WAS, AS JUST DESCRIBED, ENTERED INTO BETWEEN THE COLVILLES AND TWO
ATTORNEYS WHOM THEY RETAINED TO PRESS THEIR CLAIM.  IT, TOO, RECITES
THAT THE INDIANS' CONCERN WAS DIRECTED TO THE GOVERNMENT'S FAILURE TO
COMPENSATE THEM FOR THE NORTHERN HALF OF THE RESERVATION: 

     "'AND WHEREAS THE PRINCIPAL CONSIDERATION TO SAID INDIANS FOR

  THE CESSION AND SURRENDER OF SAID PORTION OF THE RESERVATION WAS

  THE EXPRESS AGREEMENT UPON THE PART OF THE UNITED STATES

  GOVERNMENT TO PAY TO SAID INDIANS 'THE SUM OF ONE MILLION FIVE

  HUNDRED THOUSAND DOLLARS ($1,500,000) . . .;' 

     "'AND WHEREAS THE UNITED STATES GOVERNMENT HAS FAILED TO
COMPLY

WITH THE TERMS OF SAID AGREEMENT, AND NO PROVISION HAS BEEN MADE

  TO PAY SAID INDIANS THE AMOUNT STIPULATED IN THE SAID AGREEMENT

  FOR THE CESSION OF SAID LANDS; 

     "'AND WHEREAS THE SAID INDIANS ENTERED INTO SAID AGREEMENT
WITH

  AN IMPLICIT TRUST IN THE GOOD FAITH OF THE UNITED STATES

  GOVERNMENT, AND NOW MOST EARNESTLY PROTEST THAT THEIR LANDS

  SHOULD NOT BE TAKEN FROM THEM WITHOUT THE PAYMENT OF THE JUST

  COMPENSATION STIPULATED IN SAID AGREEMENT;

      .  .  .  . 

     "'. . . THE PURPOSE OF THIS AGREEMENT IS TO SECURE THE

  PRESENTATION AND PROSECUTION OF THE CLAIMS OF SAID INDIANS FOR

  PAYMENT FOR THEIR INTEREST IN SAID CEDED LANDS AND TO SECURE THE

  SERVICES OF SAID MAISH AND GORDON AS COUNSEL AND ATTORNEYS FOR

  THE PROSECUTION AND COLLECTION OF SAID CLAIMS.'"  ID., AT 502

  (EMPHASIS ADDED). 

SIMILARLY, THE LETTER OF PROTEST BY THE CHAIRMAN OF THE COLVILLE INDIAN
COMMISSION, ANTE, AT 199 N. 6, FOCUSED SOLELY ON CONGRESS' FAILURE TO
PROVIDE THE INDIANS "THE SOLACE OF COMPENSATION." 

AS A RESULT OF THE EFFORTS OF THE INDIANS, THEIR FRIENDS, AND THEIR
ATTORNEYS, CONGRESS ULTIMATELY ACCEDED TO THEIR CLAIM FOR
COMPENSATION.  IT DID SO IN THE ACT OF JUNE 21, 1906, WHICH IS THE
INDIAN DEPARTMENT APPROPRIATIONS ACT OF 1906.  WITH RESPECT TO THE
COLVILLE CONFEDERATED TRIBES, THE ACT PROVIDED AS FOLLOWS: 

     "TO CARRY INTO EFFECT THE AGREEMENT BEARING DATE MAY NINTH,

  EIGHTEEN HUNDRED AND NINETY-ONE, . . . THERE SHALL BE SET ASIDE

  AND HELD IN THE TREASURY OF THE UNITED STATES FOR THE USE AND

  BENEFIT OF SAID INDIANS, WHICH SHALL AT ALL TIMES BE SUBJECT TO

THE APPROPRIATION OF CONGRESS AND PAYMENT TO SAID INDIANS, IN

  FULL PAYMENT FOR ONE MILLION FIVE HUNDRED THOUSAND (1,500,000)

  ACRES OF LAND OPENED TO SETTLEMENT BY THE ACT OF CONGRESS, . . .

  APPROVED JULY FIRST, EIGHTEEN HUNDRED AND NINETY-TWO, THE SUM OF

  ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) . . .

  ."  34 STAT. 377 - 378. 

THIS ACT IS SURELY THE MAJOR RECOGNITION BY CONGRESS OF THE CLAIMS
OF THE COLVILLES, AND EVEN WITH THE MOST LIBERAL CONSTRUCTION I DO NOT
SEE HOW IT CAN BE READ TO DO MORE THAN AUTHORIZE THE APPROPRIATION OF
$1,500,000 TO EFFECTUATE THE COMPENSATION ARTICLE OF THE 1891
AGREEMENT.  NOT A WORD IS SAID ABOUT TAX EXEMPTION, NOR ABOUT HUNTING
AND FISHING RIGHTS. 

THE COURT ALSO RELIES ON LANGUAGE IN THE INDIAN DEPARTMENT
APPROPRIATIONS ACT OF 1907, 34 STAT. 1015, AND SUBSTANTIALLY IDENTICAL
LANGUAGE IN EACH OF THE SUCCEEDING FOUR ANNUAL INDIAN DEPARTMENT
APPROPRIATION ACTS.  AFTER THE USUAL LANGUAGE OF APPROPRIATION, THE ACT
GOES ON TO PROVIDE: 

     "IN PART PAYMENT TO THE INDIANS RESIDING ON THE COLVILLE

  RESERVATION FOR THE CESSION BY SIAD INDIANS TO THE UNITED STATES

  OF ONE MILLION FIVE HUNDRED THOUSAND ACRES OF LAND OPENED TO

  SETTLEMENT BY AN ACT OF CONGRESS . . . APPROVED JULY FIRST,

  EIGHTEEN HUNDRED AND NINETY-TWO, BEING A PART OF THE FULL SUM SET

ASIDE AND HELD IN THE TREASURY OF THE UNITED STATES IN PAYMENT

  FOR SAID LAND UNDER THE TERMS OF THE ACT APPROVED JUNE

  TWENTY-FIRST, NINETEEN HUNDRED AND SIX, RATIFYING THE AGREEMENT

  CEDING SAID LAND TO THE UNITED STATES UNDER DATE OF MAY NINTH,

  EIGHTEEN HUNDRED AND NINETY-ONE, THREE HUNDRED THOUSAND DOLLARS .

  . . ."  34 STAT. 1050 - 1051. 

THUS THE COURT RESTS ITS DECISION IN THIS CASE ON TWO LEGISLATIVE
PRONOUNCEMENTS.  THE FIRST IS THE 1906 ACT AUTHORIZING PAYMENT OF MONEY
TO THE COLVILLES AND RECITING THAT THE AUTHORIZATION WAS MADE TO "CARRY
INTO EFFECT" THE 1891 AGREEMENT.  THE SECOND IS THE SERIES OF ACTS
APPROPRIATING FUNDS TO COVER THE 1906 AUTHORIZATION AND REFERRING TO
THE AUTHORIZATION AS "RATIFYING THE AGREEMENT CEDING SAID LAND."  ON
THE BASIS OF THESE ACTS, BOTH OF WHICH ARE PART OF THE MECHANISM BY
WHICH CONGRESS EXPENDS PUBLIC FUNDS, THE COURT HAS CONCLUDED THAT
PROVISIONS OF THE 1891 AGREEMENT UTTERLY UNRELATED TO THE PAYMENT OF
MONEY BECAME THE SUPREME LAW OF THE LAND, EVEN THOUGH THERE IS NO
INDICATION THAT THE COLVILLES SOUGHT ANY RELIEF OTHER THAN WITH RESPECT
TO THE GOVERNMENT'S FAILURE TO PAY COMPENSATION, OR THAT CONGRESS
INTENDED ANY RELIEF AFFECTING THE USE OF THE LAND IT QUITE PLAINLY HAD
DETERMINED SHOULD BE RETURNED TO THE PUBLIC DOMAIN. 

A FAR MORE REASONED INTERPRETATION OF THESE LEGISLATIVE MATERIALS
WOULD BEGIN BY PLACING THEM IN THE CONTEXT OF THE EXECUTIVE/LEGISLATIVE
DISPUTE OF INDIAN POLICY AND AUTHORITY.  A YEAR AFTER THE SIGNING OF
THE 1891 AGREEMENT, CONGRESS CLEARLY INDICATED ITS DOUBT AS TO WHETHER
PRESIDENT GRANT WAS JUSTIFIED IN SETTING ASIDE THREE MILLION ACRES FOR
THE COLVILLES, AND AS TO UHETHER HIS EXECUTIVE ORDER ACTUALLY CONVEYED
TITLE.  IN THE ACT OF JULY 1, 1892, CONGRESS CHOSE TO TAKE WHAT THE
INDIANS HAD EXPRESSED A WILLINGNESS TO SURRENDER, BUT TO GIVE ONLY PART
OF WHAT THE COMMISS"ONERS HAD AGREED THE GOVERNMENT SHOULD GIVE IN
RETURN.  THE COLVILLES, AFTER A 14-YEAR BATTLE IN AND AROUND THE
LEGISLATIVE HALLS OF CONGRESS, OBTAINED THE MONETARY RELIEF WHICH THEY
SOUGHT.  SYMPATHY WITH THEIR PLIGHT SHOULD NOT LEAD US NOW TO DISTORT
WHAT IS ON ITS FACE NO MORE THAN CONGRESSIONAL RESPONSE TO DEMANDS FOR
PAYMENT INTO CONGRESSIONAL ENACTMENT OF THE ENTIRE 1891 AGREEMENT. 

I WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF WASHINGTON. 

MASON D. MORISSET ARGUED THE CAUSE AND FILED A BRIEF FOR 

APPELLANTS. 

JOSEPH LAWRENCE CONIFF, JR., ASSISTANT ATTORNEY GENERAL OF
WASHINGTON, ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEFS WERE
SLADE GORTON, ATTORNEY GENERAL, AND JAMES M. JOHNSON, ASSISTANT
ATTORNEY GENERAL. 

SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL JOHNSON, LOUIS F.
CLAIBORNE, HARRY R. SACHSE, AND EDMUND B. CLARK FILED A BRIEF FOR THE
UNITED STATES AS AMICUS CURIAE URGING REVERSAL. 
..END :



















UNITED STATES V. ITT CONTINENTAL BAKING CO., 420 U.S. 223 


       UNITED STATES V. ITT CONTINENTAL BAKING CO.

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 73 - 1290.  ARGUED NOVEMBER 13, 1974--DECIDED FEBRUARY

           19, 1975; 485 F.2D 16, REVERSED AND REMANDED. 


    THE CIVIL PENALTY PROVISIONS OF THE CLAYTON ACT, 15 U.S.C.

  21(L), AND THE FEDERAL TRADE COMMISSION ACT, 15 U.S.C. 45(L),

  SIMILARLY PROVIDE IN PART THAT EACH SEPARATE VIOLATION OF A

  FEDERAL TRADE COMMISSION (FTC) CEASE-AND-DESIST ORDER ISSUED

  UNDER THE RESPECTIVE ACTS SHALL BE A SEPARATE OFFENSE, EXCEPT

  THAT IN THE CASE OF A VIOLATION THROUGH "CONTINUING FAILURE OR

  NEGLECT TO OBEY" A FINAL ORDER OF THE FTC EACH DAY OF CONTINUANCE

  OF SUCH FAILURE SHALL BE DEEMED A SEPARATE OFFENSE.  AFTER THE

  FTC HAD CHARGED THE CONTINENTAL BAKING CO. (CONTINENTAL), A

  BAKERY WHICH LATER MERGED WITH RESPONDENT, WITH VIOLATION OF 7 OF

  THE CLAYTON ACT AND 5 OF THE FEDERAL TRADE COMMISSION BY VARIOUS

  ACQUISITIONS OF OTHER BAKERIES, THE PARTIES AGREED TO A CONSENT

  ORDER PROHIBITING CONTINENTAL FROM "ACQUIRING" OTHER BAKERIES. 

  THEREAFTER, ALLEGING THAT CONTINENTAL HAD ACQUIRED ASSETS IN

  OTHER COMPANIES IN VIOLATION OF THIS ORDER, THE GOVERNMENT

  BROUGHT SUIT FOR CIVIL PENALTIES TO BE IMPOSED DAILY FROM THE

  DATE OF THE CONTRACT OF ACQUISITION TO THE DATE OF FILING OF THE

  COMPLAINT.  THE DISTRICT COURT, WHILE HOLDING THAT THE ORDER HAD

BEEN VIOLATED, DECLINED TO ORDER DAILY PENALTIES, FINDING THAT

  THE ORDER PROSCRIBED ONLY THE INITIAL ACT OF ACQUISITION, THAT

  THE VIOLATIONS DID NOT CONSTITUTE "A CONTINUING FAILURE OR

  NEGLECT TO OBEY" WITHIN THE MEANING OF 21(L) AND 45(L), AND THAT

  THEREFORE ONLY A SINGLE PE ALTY MIGHT BE IMPOSED.  THE COURT OF

  APPEALS AFFIRMED THAT HOLDING.  HELD:  "ACQUIRING" AS USED IN THE

  CONSENT ORDER MEANS BOTH THE INITIAL TRANSACTION AND THE

  MAINTAINING OF THE RIGHTS OBTAINED WITHOUT RESALE, AND THEREFORE

  VIOLATION OF THE ORDER IS A "CONTINUING FAILURE OR NEGLECT TO

  OBEY" AN FTC ORDER WITHIN THE MEANING OF 21(L) AND 45(L) AND THUS

  SUBJECT TO DAILY PENALTIES THEREUNDER.  PP. 230 - 243. 

     (A) THE PURPOSE OF THE "CONTINUING FAILURE OR NEGLECT TO OBEY"

  PROVISIONS OF 21(L) AND 45(L), AS SHOWN BY THEIR LEGISLATIVE

  HISTORIES, TO ASSURE THAT THE PENALTY PROVISIONS WOULD

  MEANINGFULLY DETER VIOLATIONS WHOSE EFFECT IS CONTINUING AND

  WHOSE DETRIMENTAL EFFECT COULD BE TERMINATED OR MINIMIZED BY THE

  VIOLATOR AT SOME TIME AFTER INITIATING THE VIOLATION, WOULD BE

  UNDERMINED AND THE PENALTY WOULD BE CONVERTED INTO A MINOR TAX IF

  VIOLATION OF AN ORDER PROHIBITING "ACQUIRING" ASSETS WERE TREATED

AS A SINGLE VIOLATION.  PP. 230 - 233. 

     (B) SINCE THE CONSENT ORDER "AS IT IS WRITTEN" SUPPORTS AN

  INTERPRETATION THAT THE ACT OF ACQUISITION CONTINUES UNTIL THE

  ASSETS ARE DISGORGED (SEE (C), INFRA), THERE IS NO NEED TO

DETERMINE WHETHER 21(L) AND 45(L) WOULD PERMIT THE IMPOSITION OF

  DAILY PENALTIES EVEN IF THE CONSENT ORDER MUST BE READ, AS

  RESPONDENT CLAIMS, TO PROSCRIBE ONLY THE INITIAL ACT OF

  ACQUISITION.  PP. 233 - 238. 

     (C) UNDER THE CONSENT ORDER "AS IT IS WRITTEN," "ACQUIRING"

  MUST MEAN BOTH THE ACT OF FIRST OBTAINING ASSETS AND THE

  RETENTION AND USE OF THOSE ASSETS, SINCE TO CONCLUDE OTHERWISE

WOULD BE TO IGNORE THE FLEXIBILITY OF THE ENGLISH LANGUAGE, AS

  WELL AS THE CIRCUMSTANCES SURROUNDING THE ORDER AND THE CONTEXT

  IN WHICH THE PARTIES WERE OPERATING.  THAT CONCLUSION IS

  SUPPORTED BY BOTH THE "APPENDIX" TO THE PARTIES' AGREEMENT OF

  WHICH THE ORDER IS A PART AND THE COMPLAINT, AS PROPER AIDS FOR

  CONSTRUING THE ORDER WHICH IS TO BE CONSTRUED BASICALLY AS A

  CONTRACT.  BUT EVEN WITHOUT THE AID OF THESE DOCUMENTS,

  "ACQUIRING" AS USED IN AN ANTITRUST DECREE OR ORDER CONTINUES

  UNTIL THE ASSETS ARE DISGORGED, SINCE "ACQUIRING" AND RELATED

  WORDS AS USED IN THE ANTITRUST CONTEXT ENCOMPASS THE CONTINUING

  ACT OF OBTAINING CERTAIN RIGHTS AND TREATING THEM AS ONE'S OWN. 

 PP. 238 - 243. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, MARSHALL, WHITE, AND BLACKMUN, JJ., JOINED.  STEWART,

  J., FILED A DISSENTING OPINION, IN WHICH BURGER, C. J., AND

  POWELL AND REHNQUIST, JJ., JOINED, POST, P. 243. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER VIOLATIONS OF THE
PROHIBITION OF A FEDERAL TRADE COMMISSION (FTC) CONSENT ORDER AGAINST
"ACQUIRING" OTHER COMPANIES CONSTITUTED SINGLE VIOLATIONS WITHIN THE
MEANING OF THE APPLICABLE CIVIL PENALTY STATUTES, 38 STAT. 734, AS
AMENDED, 15 U.S.C. 21(L); 38 STAT. 719, AS AMENDED, 15 U.S.C. 45(L), OR
WHETHER SUCH VIOLATIONS CONSTITUTED A "CONTINUING FAILURE OR NEGLECT TO
OBEY" WITHIN THE MEANING OF THOSE STATUTES, AUTHORIZING IMPOSITION OF
DAILY PENALTIES.  THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO INTERPRETED THE CONSENT ORDER TO PROSCRIBE ONLY THE INITIAL
ACT OF ACQUISITION AND HELD THAT THEREFORE ONLY A SINGLE PENALTY MIGHT
BE IMPOSED.  1972 CCH TRADE CASES PARA. 73,993, P. 92,127 (AUG. 2,
1971).  THE COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED THE
DISTRICT COURT TO THAT EXTENT, 485 F.2D 16 (1973).  A SUBSEQUENT
DECISION OF THE COURT OF APPEALS FOR THE EIGHTTH CIRCUIT IS IN
CONFLICT, UNITED STATES V. BEATRICE FOODS CO., 493 F.2D 1259 (1974),
CERT. PENDING NO. 73 - 1798.  IN INTERPRETING A CONSENT ORDER WORDED IN
ITS PERTINENT TERMS SIMILARLY TO THAT IN THIS CASE, THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT HELD THAT ACQUISITION IS A CONTINUING
OFFENSE UNTIL IT IS UNDONE, NOTING THAT THE CONSTRUCTION OF "ACQUIRING"
AS A SINGLE RATHER THAN CONTINUING VIOLATION "IGNORES THE CRUCIAL
EFFECTS OF AN ACQUISITION AND WOULD RENDER NONACQUISITION ORDERS
VIRTUALLY MEANINGLESS."  ID., AT 1270. 

WE GRANTED CERTIORARI IN ORDER TO RESOLVE THIS CONFLICT BETWEEN
COURTS OF APPEALS CONCERNING THE PROPER APPLICATION OF THE "CONTINUING"
VIOLATION CLAUSES OF 15 U.S.C. 21(L) AND 45(L) TO WORDING EMPLOYED IN
A LARGE NUMBER OF FTC CONSENT ORDERS.  /1/ SINCE WE INTERPRET
"ACQUIRING"  AS USED IN THE CONSENT ORDER IN THIS CASE TO MEAN BOTH THE
INITIAL TRANSACTION AND THE MAINTAINING OF THE RIGHTS OBTAINED WITHOUT
RESALE, WE HOLD THAT VIOLATION OF THE CONSENT ORDER IS A CONTINUING
VIOLATION SUBJECT TO DAILY PENALTIES, AND REVERSE.  /2/

        I 

THE FTC ALLEGED IN 1960 THAT CONTINENTAL BAKING CO. (CONTINENTAL),
/3/ A MAJOR PRODUCER OF BREAD AND OTHER BAKERY PRODUCTS, HAD VIOLATED 7
OF THE CLAYTON AC 38 STAT. 731, 64 STAT. 1125, 15 U.S.C. 45, BY VARIOUS
ACQUISITIONS WHICH "MAY HAVE THE EFFECT OF SUBSTANTIALLY LESSENING
COMPETITION OR TENDING TO CREATE A MONOPOLY . . . ."  BEFORE ANY
DECISION IN THE CASE, THE PARTIES AGREED TO A PROPOSED CONSENT ORDER
WHICH WAS APPROVED BY THE FTC IN MAY 1962.  THE ORDER, AMONG OTHER
THINGS, PROHIBITED CONTINENTAL FOR 10 YEARS /4/ FROM "ACQUIRING,
DIRECTLY OR INDIRECTLY, THROUGH SUBSIDIARIES OR OTHERWISE, THE WHOLE OR
ANY PART OF THE STOCK, SHARE CAPITAL, OR ASSETS OF ANY CONCERN,
CORPORATE OR NON-CORPORATE, ENGAGED IN ANY STATE OF THE UNITED STATES
IN THE PRODUCTION AND SALE OF BREAD AND BREAD-TYPE ROLLS UNLESS THE
COMMISSION, ON PETITION FOR MODIFICATION OF THIS SECTION III OF THIS
ORDER, PERMITS SUCH AN ACQUISITION . . .."  ALLEGING THAT CONTINENTAL
HAD ACQUIRED ASSETS IN THREE COMPANIES IN VIOLATION OF THIS ORDER, THE
GOVERNMENT BROUGHT SUIT IN THE DISTRICT OF COLORADO UNDER 11(L) OF THE
CLAYTON ACT, 15 U.S.C. 21(L) /5/ AND 5(L) OF THE FEDERAL TRADE
COMMISSION ACT, 15 U.S.C. 45(L), /6/ FOR CIVIL PENALTIES AND OTHER
RELIEF.  THE COMPLAINT PRAYED FOR PENALTIES OF $1,000 PER DAY FROM THE
DATE OF THE CONTRACT OF ACQUISITION TO THE DATE OF FILING OF THE
COMPLAINT ON EACH OF THE THREE COUNTS. 

THE DISTRICT COURT HELD THAT TWO OF THE THREE TRANSACTIONS WERE IN
FACT IN VIOLATION OF THE CONSENT ORDER.  IT DECLINED, HOWEVER, TO ORDER
DAILY PENALTIES, FINDING THAT "THER THERMS OF THE CONSENT ORDER
PROSCRIBE ONLY THE ACT OF ACQUISITION AND THAT THE VIOLATIONS OF THE
CONSENT ORDER . . . DID NOT CONSTITUTE A 'CONTINUING FAILURE OR NEGLECT
TO OBEY' (15 U.S.C. 21(L), 45(L)) SAID ORDER . . ..  ONCE THESE TWO
ACQUISITIONS WERE ACCOMPLISHED, THE VIOLATIONS WERE COMPLETE."  1972
CCH TRADE CASES, AT 92,129.  THE DISTRICT COURT THEREFORE ENTERED A
JUDGMENT AGAINST ITT CONTINENTAL FOR $5,000 FOR EACH OF THE TWO
VIOLATIONS FOUND.  /7/ 

THE COURT OF APPEALS REVERSED THE DISTRICT COURT ONLY INSOFAR AS IT
HAD HELD ONE OF THE THREE TRANSACTIONS NOT IN VIOLATION OF THE CONSENT
ORDER.  IT AFFIRMED ON THE MATTER OF DAILY PENALTIES, HOLDING THAT
"WHETHER THE ORDER WAS DIRECTED TO THE ACQUISITION OR TO THE
ACQUISITION AND RETENTION OF ASSETS OR INTERESTS INTERESTS . . . (IS)
AN INTERPRETATION OF THE CONSENT ORDER, AND THE RESULT IS IN ACCORDANCE
WITH THE PREVAILING STANDARDS."  485 F.2D,AT 21.  REMAND TO THE
DISTRICT COURT WAS ORDERED ONLY FOR IMPOSITION OF A PENALTY FOR THE
THIRD VIOLATION. 

        II 

THE BASIC QUESTION BEFORE US IS WHETHER THERE HAS BEEN A "CONTINUING
FAILURE OR NEGLECT TO OBEY" AN FTC ORDER WITHIN THE MEANING OF 15
U.S.C. 21(L) AND 45(L). 

THE "CONTINUING FAILURE OR NEGLECT TO OBEY" PROVISION OF 45(L) WAS
ADDED TO THE FEDERAL TRADE COMMISION ACT IN 1950, AND THE LIKE
PROVISION OF 21(L) TO THE CLAYTON ACT IN 1959.  ALTHOUGH THE
LEGISLATIVE HISTORY OF THESE PROVISIONS IS SPARSE, SOME EXAMPLES OF
BEHAVIOR INTENDED TO BE COVERED BY THE "CONTINUING"  VIOLATION
PROVISIONS DO APPEAR IN THE LEGISLATIVE HISTORY.  THESE INCLUDED
CONTINUING CONSPIRACIES TO FIX PRICES OR CONTROL PRODUCTION,
MAINTENANCE OF A BILLBORAD IN DEFIANCE OF AN ORDER PROHIBITING FALSE
ADVERTISING, FAILURE TO DISSOLVE AN UNLAWFUL MERGER, AND FAILURE TO
ELIMINATE AN INTERLOCKING DIRECTORATE.  SEE LETTER FROM FTC GENERAL
COUNSEL TO SENATOR FULBRIGHT, 96 CONG.REC.  3026 - 3027 (1950);
HEARINGS ON H. R. 432, HR. R. 2977, H. R. 6049, AND S. 726 BEFORE THE
ANTITRUST SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY, 86TH
CONG., 1ST SESS., 21 (1959); H. R. REP. NO. 580, 86TH CONG., 1ST SESS.,
7 (1959).  THESE VIOLATIONS SHARE TWO DISCERNIBLE CHARACTERISTICS:  THE
DETRIMENTAL EFFECT TO THE PUBLIC AND THE ADVANTAGE TO THE VIOLATOR
CONTINUE AND INCREASE OVER A PERIOD OF TIME, AND THE VIOLATOR COULD
ELIMINATE THE EFFECTS OF THE VIOLATION IF IT WERE MOTIVATED TO DO SO,
AFTER IT HAD BEGUN.  WITHOUT THESE CHARACTERISTICS, DAILY PENALTIES FOR
SUCH VIOLATIONS WOULD PROBABLY HAVE NO GREATER DETERRENT EFFECT THAN A
SINGLE PENALTY AND ACCUMULATING DAILY PENALTIES WOULD THEREFORE BE
UNFAIR. 

THE LEGISLATIVE HISTORY ALSO MAKES CLEAR THAT CONGRESS WAS CONCERNED
WITH AVOIDING A SITUATION IN WHICH THE STATUTORY PENALTY WOULD BE
REGARDED BY POTENTIA VIOLATORS OF FTC ORDERS AS NOTHING MORE THAN AN
ACCEPTABLE COST OF VIOLATION, RATHER THAN AS A DETERRENCE TO
VIOLATION.  FOR EXAMPLE, SENATOR AIKEN, CHIEF PROPONENT OF THE 1950
AMENDMENT, SAID THAT IF DAILY PENALTIES FOR CERTAIN VIOLATIONS OF THE
FEDERAL TRADE COMMISSION ACT WERE NOT PERMITTED, "THE FINE WOULD AMOUNT
TO A LICENSE IN THE AMOUNT OF $5,000 FOR MISREPRESENTATION, WHICH WOULD
BE A VERY CHEAP FINE, INDEED."  96 CONG.REC.  3025 (1950).  SIMILARLY,
THE HOUSE OF REPRESENTATIVES JUDICIARY COMMITTEE SAID IN ITS REPORT ON
THE 1959 AMENDMENTS: 

"ALTHOUGH THE MAXIMUM PENALTY MAY BE SEVERE, IN CERTAIN CASES IT
WOULD BE APPROPRIATE.  IN THE ABSENCE OF THE MAXIMUM PENALTY FOR A
CONTINUING OFFENSE, FOR EXAMPLE, COMMISSION AND BOARD ORDERS WITH
RESPECT TO MERGERS AND INTERLOCKING DIRECTORSHIPS WOULD BE
INEFFECTIVE.  IN SUCH CASES, UNLESS THE MAXIMUM PENALTY APPLIED AND
EACH DAY OF A CONTINUING VIOLATION CONSIDERED A SEPARATE OFFENSE, AN
ORDER DISSOLVING AN UNLAWFUL MERGER COULD BE IGNORED AFTER THE MERE
PAYMENT OF A $5,000 FINE."  H. R. REP. NO. 580, 86TH CONG., 1ST SESS.,
7 (1959).  SEE ALSO HEARINGS ON H. R. 432, H. R. 2977, H. R. 6049, AND
S. 726, SUPRA, AT 30 OPRIATE.  IN THE ABSENCE OF THE MAXIMUM PENALTY
FOR A CONTINUING OFFENSE, EXAMPLE, COMMISSION AND BOARD ORDERS WITH
RESPECT TO MERGERS AND INTERLOCKING CTORSHIPS WOULD BE INEFFECTIVE.  IN
SUCH CASES, UNLESS THE MAXIMUM PENALTY (LETTER FROM FTC GENERAL
COUNSEL). 

THUS, THE "CONTINUING FAILURE OR NEGLECT TO OBEY" PROVISIONS OF 15
U.S.C. 21(L) AND 45(L) WERE INTENDED TO ASSURE THAT THE PENALTY
PROVISIONS WOULD PROVIDE A MEANINGFUL DETERRENCE AGAINST VIOLATIONS
WHOSE EFFECT IS CONTINUING AND WHOSE DETRIMENTAL EFFECT COULD BE
TERMINATED OR MINIMIZED BY THE VIOLATOR AT SOME TIME AFTER INITIATING
THE VIOLATION.  IT SEEMS APPARENT THAT ACQUISITION IN VIOLATION OF AN
FTC ORDER BANNING "ACQUIRING" CERTAIN ASSETS COULD BE SUCH A
VIOLATION.  ANY ANTICOMPETITIVE EFFECT OF AN ACQUISITION CONTINUES AS
LONG AS THE ASSETS OBTAINED ARE RETAINED, AND THE VIOLATOR COULD UNDO
OR MINIMIZE ANY SUCH EFFECT BY DISPOSING OF THE ASSETS AT ANY TIME
AFTER THE INITIAL TRANSACTION.  ON THE OTHER HAND, IF VIOLATION OF AN
ORDER PROHIBITING "ACQUIRING" ASSETS WERE TREATED AS A SINGLE
VIOLATION, ANY DETERRENT EFFECT OF THE PENALTY PROVISIONS WOULD BE
ENTIRELY UNDERMINED, AND THE PENALTY WOULD BE CONVERTED INTO A MINOR
TAX UPON A VIOLATION WHICH COULD REAP LARGE FINANCIAL BENEFITS TO THE
PERPETRATOR.  AS WE HAVE SEEN, CONGRESS ADDED THE CONTINUING-PENALTY
PROVISIONS PRECISELY TO AVOID SUCH A RESULT. 

        III 

RESPONDENT INSISTS, HOWEVER, THAT THE UNDERLYING FTC ORDER WAS A
CONSENT ORDER PROSCRIBING ONLY THE INITIAL ACT OF ACQUISITION, AND THAT
THEREFORE THE IMPOSITION OF DAILY PENALTIES WHICH MIGHT OTHERWISE BE
MANDATED CANNOT BE PERMITTED.  ITS ARGUMENT IS THAT "ACQUIRING" IN THE
CONSENT ORDER UNAMBIGUOUSLY REFERS ONLY TO THE INITIAL TRANSACTION, AND
THAT TO READ IT OTHERWISE IS TO ADD THE WORDS "HOLDING" OR "RETAINING"
ASSETS TO THE LITERAL LANGUAGE OF THE ORDER.  THIS ADDITION TO THE
LANGUAGE OF THE ORDER, ITT CONTINENTAL CONTENDS, VIOLATES THE PRINCIPLE
OF A LINE OF CASES CULMINATING IN UNITED STATES V. ARMOUR & CO., 402
U.S. 673 (1971), THAT ANY COMMAND OF A CONSENT DECREE OR ORDER MUST BE
FOUND "WITHIN ITS FOUR CORNERS," ID., AT 682, AND NOT BY REFERENCE TO
ANY "PURPOSES" OF THE PARTIES OR OF THE UNDERLYING STATUTES.  SEE
UNITED STATES V. ATLANTIC REFINING CO., 360 U.S. 19 (1959); HUGHES V.
UNITED STATES, 342 U.S. 353 (1952).  RESPONDENT ASKS US TO CONCLUDE
THAT THE "ACQUIRINGS" PROHIBITED BY THE CONSENT ORDER ARE NOT CAPABLE
OF PERSISTING OVER TIME, AND THAT THEREFORE THERE CAN BE NO "CONTINUING
FAILURE OR NEGLECT TO OBEY" THE ORDER.  THE GOVERNMENT, ON THE OTHER
HAND, CONTENDS THAT THE PARTIES MEANT "ACQUIRING" TO INCLUDE BOTH
PURCHASE AND RETENTION OF ASSETS, AND THAT THEREFORE IT IS UNNECESSARY
TO DEPART FROM THE "FOUR CORNERS" RULE OF ARMOUR TO CONCLUDE THAT THERE
HAS BEEN A CONTINUING VIOLATION. 

IN ARMOUR, IT WAS FIRST DETERMINED THAT THE CONSTRUCTION OF THE
CONSENT DECREE URGED BY THE GOVERNMENT WAS INCONSISTENT WITH THE
EXPRESS TERMS OF THE CONSENT DECREE IT WAS SEEKING TO ENFORCE.  /8/ THE
DECREE INVOLVED IN ARMOUR WAS THE MEAT PACKERS CONSENT DECREE OF 1920,
ENTERED IN SETTLEMENT OF AN ANTITRUST CASE FILED IN DISTRICT COURT. 
PARAGRAPH FOURTH OF THE DECREE ENJOINED ARMOUR FROM ENGAGING IN CERTAIN
BUSINESSES.  THE GREYHOUND CORPORATION, WHICH WAS ENGAGED IN SOME OF
THOSE BUSINESSES, ACQUIRED CONTROL OF ARMOUR.  THE GOVERNMENT CLAIMED
THAT THIS ACQUISITION WAS IN VIOLATION OF THE CONSENT DECREE,
CONTENDING THAT THE PURPOSE OF THE DECREE WAS STRUCTURALLY TO SEPARATE
THE MEATPACKERS FROM THE RETAIL FOOD BUSINESS ENTIRELY, AND THAT THE
RELATIONSHIP BETWEEN ARMOUR AND GREYHOUND WAS THEREFORE PROHIBITED. 

THE COURT NOTED THAT THE LANGUAGE OF THE DECREE "TAKEN IN ITS
NATURAL SENSE, BARS ONLY ACTIVE CONDUCT ON THE PART OF THE DEFENDANTS .
. .. (THE DECREE DOES NOT SPEAK IN TERMS OF RELATIONSHIPS IN GENERAL,
BUT, RATHER, PROHIBITS CERTAIN BEHAVIOR, AND IN DOING SO PROHIBITS SOME
BUT NOT ALL ECONOMIC INTERRELATIONSHIP BETWEEN ARMOUR AND THE RETAIL
FOOD BUSINESS . . . . IN SHORT, WE DO NOT FIND IN THE DECREE A
STRUCTURAL SEPARATION SUCH AS THE GOVERNMENT CLAIMS . . .. (T)  HE
DECREE LEAVES GAPS IN CONSISTENT WITH SO COMPLETE A SEPARATION."  402
U.S.,AT 678, 680.  (EMPHASIS SUPPLIED.) 

SIMILARLY, IN BOTH ATLANTIC REFINING AND HUGHES THE COURT FIRST
UNDERTOOK TO DETERMINE WHETHER THE LANGUAGE OF THE DECREE COULD SUPPORT
THE CONSTRUCTION URGED BY THE GOVERNMENT AND CONCLUDED THAT IT COULD
NOT.  IN HUGHES, THE DECREE PROVIDED THAT HUGHES WAS EITHER TO DISPOSE
OF HIS STOCK IN A CERTAIN CORPORATION OR COMMIT THE VOITNG RIGHTS OF
HIS STOCK TO A TRUSTEE "UNTIL (HE) SHALL HAVE SOLD HIS HOLDINGS OF
STOCK."  342 U.S.,AT 355 N. THE COURT SAID:  "A READING OF THE
EITHER/OR WORDING WOULD MAKE MOST PERSONS BELIEVE THAT HIGHES WAS TO
HAVE A CHOICE OF TWO DIFFERENT ALTERNATIVES.  HUGHES WOULD HAVE NO
CHOICE IF THE FIRST 'ALTERNATIVE' WAS TO SELL THE STOCK AND THE SECOND
'ALTERNATIVE' WAS ALSO TO SELL THE STOCK."  ID., AT 356.  (EMPHASIS
SUPPLIED.)  THEREFORE, THE COURT CONCLUDED, THE CONSENT DECREE COULD
NOT BE CONSTRUED, AS THE GOVERNMENT DESIRED, TO REQUIRE HUGHES TO SELL
HIS STOCK. 

IN ATLANTIC REFINING, THE COURT CONCLUDED THAT THE CONSTRUCTION
URGED BY THE GOVERNMENT WAS A "STRAINED CONSTRUCTION," 360 U.S.,AT 22,
INCONSISTENT WITH THE "NORMAL MEANING," ID., AT 23, OF THE LANGUAGE
USED.  IT COMMENTED THAT IF THE PARTIES HAD INTENDED THE MEANING URGED
BY THE GOVERNMENT, "ONE CAN HARDLY THINK OF LESS APPROPRIATE
LANGUAGE."  ID., AT 22.     IN ALL THREE OF THESE CASES, IT WAS ONLY
AFTER CONCLUDING THAT THE LANGUAGE, FIARLY READ, COULD NOT SUPPORT THE
GOVERNMENT'S CONSTRUCTION THAT THE COURT TURNED TO THE CONTENTION THAT
THE RESTRICTIVE READING WAS INCONSISTENT WITH THE PURPOSES OF THE
DECREE AND OF THE ANTITRUST LAWS ASSERTEDLY VIOLATED.  IT WAS IN THIS
CONTEXT THAT THE COURT NOTED THAT, BECAUSE CONSENT DECREES ARE NORMALLY
COMPROMISES IN WHICH THE PARTIES GIVE UP SOMETHING THEY MIGHT HAVE WON
IN LITIGATION AND WAIVE THEIR RIGHTS TO LITIGATION, IT IS INAPPROPRIATE
TO SEARCH FOR THE "PURPOSE" OF A CONSENT DECREE AND CONSTRUE IT ON THAT
BASIS.  "(THE DECREE ITSELF CANNOT BE SAID TO HAVE A PURPOSE; RATHER
THE PARTIES HAVE PURPOSES, GENERALLY OPPOSED TO EACH OTHER, AND THE
RESULTANT DECREE EMBODIES AS MUCH OF THOSE OPPOSING PURPOSES AS THE
RESPECTIVE PARTIES HAVE THE BARGAINING POWER AND SKILL TO ACHIEVE . .
..  (THE INSTRUMENT MUST BE CONSTRUED AS IT IS WRITTEN, AND NOT AS IT
MIGHT HAVE BEEN WRITTEN, HAD THE PLAINTIFF ESTABLISHED HIS FACTUAL
CLAIMS AND LEGAL THEORIES IN LITIGATION."  /9/ ARMOUR, 402 U.S.,AT 681
682.  THUS, THE BASIC IMPORT OF ARMOUR, ATLANTIC REFINING, AND HUGHES
IS THAT, SINCE CONSENT DECREES AND ORDERS HAVE MANY OF THE ATTRIBUTES
OF ORDINARY CONTRACTS, /10/ THEY SHOULD BE CONSTRUED BASICALLY AS
CONTRACTS, WITHOUT REFERENCE TO THE LEGISLATION THE GOVERNMENT
ORIGINALLY SOUGHT TO ENFORCE BUT NEVER PROVED APPLICABLE THROUGH
LITIGATION. 

WE NOTE THAT THIS CASE DIFFERS FROM ARMOUR, HUGHES, AND ATLANTIC
REFINING IN A MOST IMPORTANT RESPECT.  IN EACH OF THOSE CASES THE
QUESTION OF WHETHER OR NOT THE CONSENT DECREE WAS VIOLATED WAS THE
QUESTION FOR DECISION; IN THIS CASE RESPONDENT WAS FOUND TO HAVE
COMMITTED VIOLATIONS, AND THE ISSUE BEFORE US AFFECTS ONLY THE MANNER
OF ASSIGNING PENALTIES FOR EACH VIOLATION FOUND.  THUS, RESPONDENT IS
SUBJECT TO SOME PENALTY, AND THERE IS NO POSSIBILITY AS THERE WAS IN
ARMOUR, ATLANTIC REFINING, AND HUGHES THAT RESPONDENT WILL BE PENALIZED
FOR BEHAVIOR NOT PROHIBITED AT ALL BY THE ORDER "WITHIN ITS FOUR
CORNERS, " ARMOUR, 402 U.S.,AT 682.  NOTHING IN THE CONSENT ORDER
SUGGESTS THAT ALTHOUGH THE PARTIES AGREED THAT CONTINENTAL WOULD
REFRAIN FROM "ACQUIRING," THEY ALSO AGREED TO LIMIT THE PENALTIES WHICH
WOULD OTHERWISE APPLY IF CONTINENTAL DID NOT REFRAIN FROM THAT
BEHAVIOR.  SUCH AN AGREEMENT WOULD BE EXCEEDINGLY ODD, FOR IT WOULD
UNDERMINE WHATEVER PROHIBITIONS WERE IMPOSED.  AS WE HAVE SEEN, PART
II, SUPRA, IT IS QUITE POSSIBLE THAT UNDER 21(L) AND 45(L) VIOLATION OF
AN FTC ADJUDICATED ORDER AGAINST "ACQUIRING" WOULD BE SUBJECT TO DAILY
PENALTIES.  IT IS NOT CLEAR THAT ARMOUR WOULD REQUIRE A DIFFERENT
RESULT MERELY BECAUSE WE ARE DEALING WITH A CONSENT ORDER, SINCE THE
PARTIES REACHED NO AGREEMENT AT ALL CONCERNING PENALTIES TO BE APPLIED
IN CASE OF VIOLATION OF THE ORDER. 

WE NEED NOT, HOWEVER, DETERMINE WHETHER 21(L) AND 45(L) WOULD PERMIT
THE IMPOSITION OF DAILY PENALTIES EVEN IF THE CONSENT ORDER MUST BE
READ AS RESPONDENT MAINTAINS TO PROSCRIBE ONLY THE INITIAL ACT OF
ACQUISITION.  FOR WE AGREE WITH THE GOVERNMENT THAT THE ORDER "AS IT IS
WRITTEN" DOES SUPPORT AN INTERPRETATION THAT THE ACT OF ACQUISITION
CONTINUES UNTIL THE ASSETS ACQUIRED ARE DISGORGED. 

        IV 

SINCE A CONSENT DECREE OR ORDER IS TO BE CONSTRUED FOR ENFORCEMENT
PURPOSES BASICALLY AS A CONTRACT, RELIANCE UPON CERTAIN AIDS TO
CONSTRUCTION IS PROPER, AS WITH ANY OTHER CONTRACT.  SUCH AIDS INCLUDE
THE CIRCUMSTANCES SURROUNDING THE FORMATION OF THE CONSENT ORDER, ANY
TECHNICAL MEANING WORDS USED MAY HAVE HAD TO THE PARTIES, AND ANY OTHER
DOCUMENTS EXPRESSLY INCORPORATED IN THE DECREE.  /11/ SUCH RELIANCE
DOES NOT IN ANY WAY DEPART FROM THE "FOUR CORNERS" RULE OF ARMOUR. 

IN THIS CASE, THE CONSENT ORDER WAS PART OF AN AGREEMENT BETWEEN THE
PARTIES ENTITLED "AGREEMENT CONTAINING CONSENT ORDER TO DIVEST AND TO
CEASE AND DESIST."  THE AGREEMENT INCORPORATES BY REFERENCE AN
"APPENDIX," WHICH SETS FORTH AT LENGTH THE BACKGROUND LEADING TO THE
COMPLAINT AND THE PROPOSED ORDER.  IN ADDITION, THE AGREEMENT PROVIDES
THAT "(THE COMPLAIN MAY BE USED IN CONSTRUING THE TERMS OF THE ORDER." 
SINCE THE PARTIES THEMSELVES SO PROVIDED, BOTH THE APPENDIX AND THE
COMPLAINT ARE PROPER AIDS TO THE CONSTRUCTION OF THE ORDER AND OF THE
AGREEMENT OF WHICH IT IS PART.  /12/ 

THE COMPLAINT ALLEGED THAT CONTEINENTAL HAD PURSUED "A CONTINUOUS
PRACTICE OF ACQUIRING VARIOUS BAKERIES THROUGHOUT THE UNITED STATES,"
(EMPHASIS SUPPLIED), WHICH WERE THEREBY "ELIMINATED . . . AS
INDEPENDENT COMPETITIVE FACTORS IN THE MANUFACTURE, SALE AND
DISTRIBUTION OF BREAD AND BREAD-TYPE ROLLS . . .."  IF THE "ACQUIRING"
AGAINST WHICH THE ORDER AND THE COMPALINT INCORPORATED IN IT WAS
DIRECTED WERE LIMITED TO THE SINGLE TRANSACTION BY WHICH CONTINENTAL
OBTAINED RIGHTS IN ANOTHER COMPANY, IT IS HARD TO SEE WHY THE EFFECT
WHICH THE COMPLAINT ALLEGED FOLLOWED FROM ACQUISITIONS WOULD
NECESSARILY OCCUR.  FOR IF CONTINENTAL HAD SOLD THE COMPANIES ACQUIRED
AS SOON AS THE INITIAL TRANSACTIONS WERE COMPLETED TO OTHER,
INDEPENDENT COMPANIES, THE BAKERIES WOULD NOT HAVE BEEN "ELIMINATED . .
. AS INDEPENDENT COMPETITIVE FACTORS." 

REFERENCE TO THE APPENDIX ALSO SUPPORTS THE CONCLUSION THAT
"ACQUIRING" AS USED IN THE ORDER MEANS BOTH THE INITIAL TRANSACTION
GRANTING CONTINENTAL RIGHTS IN AN INDEPENDENT BAKERY AND THE
MAINTAINING OF THOSE RIGHTS WITHOUT RESALE.  THE APPENDIX NOTES:  "ONE
OF THE PRINCIPAL PROBLEMS IN THE BAKING INDUSTRY IS THE TENDENCY
TOWARDS CONCENTRATION AND THE CONTINUOUS GROWTH OF MAJOR BAKING
COMPANIES THROUGH ACQUISITION.  SU H ACQUISITIONAL GROWTH AND TENDENCY
TOWARDS CONCENTRATION PLACES IN THE HANDS OF A FEW LARGE COMPANIES THE
MEANS TO SET THE PATTERN OF COMPETITION . . .. IF THIS ORDER IS ADOPTED
BY THE COMMISSION, THE RESPONDENT'S ALLEGED CONTINUOUS PRACTICE OF
ACQUIRING COMPANIES BAKING AND SELLING BREAD AND BREAD-TYPE ROLLS WILL
BE BROUGHT TO A HALT . . .." 

*#HC240 (EMPHASIS SUPPLIED.)  IT IS APPARENT THAT THE "ACQUISITIONAL
GROWTH" REFERRED TO IN THE APPENDIX CANNOT BE ACHIEVED MERELY BY
DISCRETE TRANSACTIONS WITHOUT REFERENCE TO WHAT IS DONE WITH THE ASSETS
OBTAINED AFTER THOSE TRANSACTIONS.  IF CONTINENTAL WERE MERELY A
SPECULATOR IN BAKING COMPANIES, BUYING ASSETS IN THEM AND SELLING THEM
SOON THEREAFTER, IT WOULD NOT NECESSARILY CREATE "THROUGH ACQUISITION"
A "TENDENCY TOWARDS CONCENTRATION" GIVING IT THE "MEANS TO SET THE
PATTERN OF COMPETITION."  THUS, "ACQUIRING" IN BOTH THE APPENDIX AND
THE ORDER, PARTS OF THE SAME AGREEMENT, MUST MEAN OBTAINING AND
RETAINING ASSETS, NOT MERELY THE FORMER. 

EVEN WITHOUT THE AID OF THESE EXPLANATORY DOCUMENTS PROPERLY USABLE
TO CONSTRUE THIS PARTICULAR ORDER, WE WOULD HAVE TO CONCLUCDE THAT
"ACQUIRING" AS USED IN AN ANTITRUST DECREE OR ORDER CONTINUES UNTIL THE
ASSETS OBTAINED ARE DISGORGED.  AS THE FOREGOING ANALYSIS OF THE
ANCILLARY DOCUMENTS HERE ILLUSTRATES, "ACQUIRING" AND RELATED WORDS DO
NOT, AS RESPONDENT INSISTS, UNAMBIGUOUSLY REFER TO A SINGLE
TRANSACTION.  RATHER, AS A MATTER OF ORDINARY USAGE THEY CAN, AND IN
THE ANTITRUST CONTEXT THEY DO, ENCOMPASS THE CONTINUING ACT OF
OBTAINING CERTAIN RIGHTS AND TREATING THEM AS ONE'S OWN.  WE MUST
ASSUME THAT THE PARTIES HERE USED THE WORDS WITH THE SPECIALIZED
MEANING THEY HAVE IN THE ANTITRUST FIELD, SINCE THEY WERE COMPOSING A
LEGAL DOCUMENT IN SETTLEMENT OF AN ANTITRUST COMPLAINT. 

WE NEED NOT GO BEYOND THE CLAYTON ACT ITSELF TO CONCLUDE THAT
"ACQUISITION" AS USED IN 7 OF THE ACT MEANS HOLDING AS WELL AS
OBTAINING ASSETS.  THE ACT PROVIDES THAT THE FTC, IF IT FINDS A
VIOLATION OF 7, CAN REQUIRE A PARTY TO "DIVEST ITSELF OF THE STOCK, OR
OTHER SHARE CAPITAL, OR ASSETS, HELD . . . CONTRARY TO THE PROVISIONS
OF (7 OF THE CLAYTON ACT)."  15 U.S.C. 21(B).  (EMPHASIS SUPPLIED.) 
THUS, THE FRAMERS OF THE ACT DID NOT REGARD THE TERMS "ACQUIRE" AND
"ACQUISITION" AS UNAMBIGUOUSLY BANNING ONLY THE INITIAL TRANSACTION OF
ACQUISITION; RATHER, THEY READ THE BAN AGAINST "ACQUISITION" TO INCLUDE
A BAN AGAINST HOLDING CERTAIN ASSETS. 

THIS COURT'S OPINIONS REFLECT THE SAME UNDERSTANDING.  FOR EXAMPLE,
IN FTC V. WESTERN MEAT CO., 272 U.S. 554 (1926), THE COURT, IN
DISCUSSING AN FTC ORDER BASED ON A VIOLATION OF 7, SAID:  "THE ORDER
HERE QUESTIONED WAS ENTERED WHEN RESPONDENT ACTUALLY HELD AND OWNED THE
STOCK CONTRARY TO LAW.  THE COMMISSION'S DUTY WAS TO PREVENT THE
CONTINUANCE OF THIS UNLAWFUL ACTION BY AN ORDER DIRECTING THAT IT CEASE
AND DESIS THEREFROM AND DIVEST ITSELF OF WHAT IT HAD NO RIGHT TO
HOLD."  ID., AT 559.  (EMPHASIS SUPPLIED.)  SEE ALSO ARROW-HART &
HEGEMAN ELEC.  CO. V. FTC, 291 U.S. 587, 596 - 599 (1934). 

SIMILARLY, THIS COURT'S OPINION IN UNITED STATES V. DU PONT, 353
U.S. 586 (1957), RESTS UPON THE CONCLUSION THAT "ACQUISITION" CAN MEAN,
AND IN THE CONTEXT OF 7 OF THE CLAYTON ACT DOES MEAN, AND IN THE
CONTEXT OF 7 OF THE CLAYTON ACT DOES MEAN, BOTH THE PURCHASE OF RIGHTS
IN ANOTHER COMPANY AND THE RETENTION OF THOSE RIGHTS. 

IN DU PONT, A 7 CASE WAS BROUGHT IN 1949 BUT BASED ON A PURCHASE OF
STOCK BY DU PONT IN 1917 - 1949.  IT WAS ARGUED THAT "THE GOVERNMENT
COULD NOT MAINTAIN THIS ACTION IN 1949 BECAUSE 7 IS APPLICABLE ONLY TO
THE ACQUISITION OF STOCK AND NOT TO THE HOLDING OR SUBSEQUENT USE OF
STOCK."  ID., AT 596 - 597.  THUS, DU PONT WAS SEEKING TO INTERPRET
"ACQUIRE" AS USED IN 7 /13/ MUCH AS RESPONDENT HERE SEEKS TO READ
"ACQUIRING" IN THE CONSENT DECREE. 

THE COURT IN DU PONT REJECTED THE INTERPRETATION URGED UPON IT.
INSTEAD, THE COURT HELD THAT THERE IS A VIOLATION "ANY TIME WHEN THE
ACQUISITION THREATENS TO RIPEN INTO A PROHIBITED EFFECT . . .. TO
ACCOMPLISH THE CONGRESSIONAL AIM, THE GOVERNMENT MAY PROCEED AT ANY
TIME THAT AN ACQUISITION MAY BE SAID WITH REASONABLY PROBABILITY TO
CONTAIN A THREAT THAT IT MAY LEAD TO A RESTRAINT OF COMMERCE OR TEND TO
CREATE A MONOPOLY OF A LINE OF COMMERCE."  ID., AT 597.  THUS, THERE
CAN BE A VIOLATION AT SOME TIME LATER EVEN IF THERE WAS CLEARLY NO
VIOLATION--NO REALISTIC THREAT OF RESTRAINT OF COMMERCE OR CREATION OF
A MONOPOLY--AT THE TIME OF THE INITIAL ACTS OF ACQUISITION.  CLEARLY,
THIS RESULT CAN OBTAIN ONLY BECAUSE "ACQUSITION" UNDER 7 IS NOT A
DISCRETE TRANSACTION BUT A STATUS WHICH CONTINUES UNTIL THE TRANSACTION
IS UNDONE.  /14/ 

THUS, UNDER THE ORDER "AS IT IS WRITTEN" "ACQUIRING" MUST MEAN BOTH
THE ACT OF FIRST OBTAINING ASSETS AND THE RETENTION AND USE OF THOSE
ASSETS.  TO CONCLUDE OTHERWISE WOULD BE TO IGNORE THE FLEXIBILITY OF
THE ENGLISH LANGUAGE, AS WELL AS THE CIRCUMSTANCES SURROUNDING THE
ORDER AND THE CONTEXT IN WHICH THE PARTIES WERE OPERATING.  AND, SINCE
THE ORDER BANS THE CONTINUING ACT OF OBTAINING AND RETAINING CERTAIN
ASSETS, A VIOLATION OF THE ORDER IS A "CONTINUING FAILURE OR NEGLECT TO
OBEY" IT, AND DAILY PENALTIES MAY BE IMPOSED UNDER 15 U.S.C. 21(L) AND
45(L). 

BECAUSE THE COURT OF APPEALS ERRED IN CONCLUDING THAT DAILY
PENALTIES COULD NOT BE IMPOSED, WE REVERSE AND REMAND FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

                                  IT IS SO ORDERED. 

/1/ ACCORDING TO THE PETITION FOR WRIT OF CERTIORARI 18A - 22A AND
BRIEF FOR THE UNITED STATES 12 N. 12 IN THIS CASE, THERE WERE IN ALL AS
OF JUNE 18, 1974, 67 FTC ORDERS, OF WHICH MOST ARE CONSENT ORDERS BUT
SOME ARE LITIGATED ORDERS, WHICH BAR ACQUISITIONS IN LANGUAGE SIMILAR
TO THE LANGUAGE OF THE ORDER IN THIS CASE.  ALL OF THESE ORDERS BAR
FUTURE ACQUISITIONS BUT DO NOT EXPRESSLY BAR THE "HOLDING" OR
"RETENTION" OF STOCK OR ASSETS ACQUIRED IN VIOLATION OF THEIR TERMS. 

/2/ THE PETITION FOR CERTIORARI OF THE UNITED STATES PRESENTED THE
SINGLE QUESTION WHETHER ITS PRAYER FOR DAILY PENALTIES WAS PROPERLY
DENIED.  RESPONDENT DID NOT CROSS-PETITION, YET SEEKS TO RAISE SEVERAL
ISSUES NOT PRESENTED BY THE PETITION.  RESPONDENT CONTENDS THAT (1) THE
THREE TRANSACTIONS FOR WHICH PENALTIES HAVE BEEN OR ARE TO BE IMPOSED
DID NOT VIOLATE THE CONSENT ORDER; (2) THE CONSENT ORDER WAS NOT
BINDING UPON ITT CONTINENTAL AS SUCCESSOR AFTER CONTINENTAL CEASED TO
EXIST, SO THAT DAILY PENALTIES COULD NOT ACCRUE FOR THE PERIOD AFTER
THE MERGER; AND (3) DAILY PENALTIES COULD NOT BE IMPOSED BECAUSE THE
FTC HAD NOT ADVISED RESPONDENT OF THE ALLEGED VIOLATIONS PRIOR TO THE
FILING OF THE COMPLAINT.  WE DO NOT ADDRESS ANY OF THESE ISSUES IN
DECIDING THE CASE. 

RESPONDENT RECOGNIZES THAT NOT HAVING CROSS-PETITIONED, IT CANNOT
ATTACK THE JUDGMENT INSOFAR AS IT SUSTAINED THE FINDINGS OF VIOLATIONS
AND IMPOSED PENALTIES FOR SUCH VIOLATIONS.  UNITED STATES V. AMERICAN
RAILWAY EXPRESS CO., 265 U.S. 425, 435 (1924).  CF. MORLEY CONSTRUCTION
CO. V. MARYLAND CASUALTY CO., 300 U.S. 185 (1937).  RESPONDENT ARGUES
THAT IT MAY NEVERTHELESS SEEK TO SUSTAIN THE COURT OF APPEALS'
LIMITATION ON THE PENALTIES ON THE THEORY THAT NO PENALTY SHOULD HAVE
BEEN AWARDED AT ALL.  ORDINARILY, HOWEVER, AS A MATTER OF PRACTICE AND
CONTROL OF OUR DOCKET, IF NOT OF OUR POWER, WE DO NOT ENTERTAIN A
CHALLENGE TO A DECISION ON THE MERITS WHERE THE ONLY PETITION FOR
CERTIORARI PRESENTS SOLELY A QUESTION AS TO THE REMEDY GRANTED FOR A
LIABILITY FOUND TO EXIST, EVEN IF THE RESPONDENT IS WILLING TO ACCEPT
WHATEVER JUDGMENT HAS ALREADY BEEN ENTERED AGAINST HIM.  STRUNK V.
UNITED STATES, 412 U.S. 434, 437 (1973); NLRB V. NLRB V. INTERNATIONAL
VAN LINES, 409 U.S. 48, 52 N. 4 (1972); NLRB V. EXPRESS PUBLISHING CO.,
312 U.S. 426, 431 - 432 (1941).  CF. LANGNES V. GREEN, 282 U.S. 531,
538 (1931).  BUT SEE LETULLE V. SCOFIELD, 308 U.S. 415 (1940).  WE
FOLLOW THAT RULE OF PRACTICE IN THIS CASE, PARTICULARLY BECAUSE THE
ISSUE OF WHETHER THERE WERE ANY VIOLATIONS CONCERNS ONLY A PARTICULAR
ORDER AS APPLIED TO A DISCRETE SET OF FACTS AND THEREFORE WOULD NOT
MERIT THIS COURT'S GRANT OF A PETITION FOR CERTIORARI.     THE COURTS
BELOW DID NOT DECIDE THE OTHER TWO ISSUES BECAUSE THEY WERE NOT
PERTINENT ONCE IT WAS DETERMINED THAT THERE WAS NO CONTINUING
VIOLATION.  (THE DISTRICT COURT DID EXPRESS THE OPINION THAT "IT WOULD
SEEM UNREASONABLE TO PERMIT THE COMMISSION TO KNOWINGLY LET DAILY
PENALTIES ACCRUE WITHOUT GIVING NOTICE OF THE COMMISSION'S POSITION AT
THE EARLIEST REASONABLE TIME," 1972 CCH TRADE CASES PARA 73,993, PP.
92,127, 92,129 (AUG. 2, 1971), BUT IT SAID THAT THIS STATEMENT WAS
"OBITER DICTUM.")  IN THE ABSENCE OF DECISIONS ON THESE QUESTIONS BY
THE COURTS BELOW, WE DECLINE TO ADDRESS THEM.  FTC V. ANHEUSER-BUSCH,
INC., 363 U.S. 536, 542 (1960); JAFFKE V. DUNHAM, 352 U.S. 280 (1957);
AETNA CASUALTY &SURETY CO. V. FLOWERS, 330 U.S. 464, 468 (1947).  CF.
DANDRIDGE V. WILLIAMS, 397 U.S. 471, 476 N. 6 (1970). 

/3/ CONTINENTAL WAS MERGED ON SEPTEMBER 13, 1968, WITH A WHOLLY
OWNED SUBSIDIARY OF INTERNATIONAL TELEPHONE AND TELEGRAPH CORP. CALLED
ITT CONTINENTAL BAKING COMPANY (ITT CONTINENTAL).  WHILE ITT
CONTINENTAL HAS NEVER CONTESTED ITS LIABILITY UNDER THE MERGER
AGREEMENT FOR ANY VIOLATIONS OF THE CONSENT ORDER COMMITTED BY
CONTINENTAL BEFORE THE MERGER, IT CONTINUES TO MAINTAIN IN THIS COURT,
AS IT DID BELOW, THAT IT IS NOT ITSELF BOUND BY THE CONSENT ORDER.  SEE
N. 2, SUPRA. 

/4/ THE CONSENT ORDER EXPIRED BY ITS OWN TERMS ON MAY 15, 1972.  IN
APRIL 1972, THE FTC ORDERED ITT CONTINENTAL TO SHOW CAUSE WHY THE
ORDER'S BAN ON ACQUISITIONS SHOULD NOT BE EXTENDED UNTIL APRIL, 1977. 
ALTHOUGH THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THE EXTENSION, THE
FTC DECLINED TO APPROVE THE EXTENSION BECAUSE OF INADEQUATE PROOF OF
INCREASED CONCENTRATION IN THE RELEVANT LOCAL MARKETS.  IN THE MATTER
OF ITT CONTINENTAL BAKING CO., NO. 7880, . . . F.T.C. . . . (1974). 
HOWEVER, THE FTC DID EXPRESS A CONTINUING CONCERN WITH THE LEVELS OF
CONCENTRATION IN THE BAKING INDUSTRY.  IT ISSUED AN ORDER REQUIRING ITT
CONTINENTAL TO INFORM THE COMMISSION "OF ANY ACQUISITIONS OF ANY
INTEREST IN ANY CONCERN ENGAGED IN THE PRODUCTION AND SALE OF BREAD AND
BREAD-TYPE ROLLS, SUCH REPORT TO BE FILED NOT LESS THAN SIXTY (60) DAYS
PRIOR TO EACH SUCH ACQUISITION."  ID., AT . . .. ITT CONTINENTAL AND
OTHER MEMBERS OF THE BAKING INDUSTRY WERE INFORMED THAT "(ANY
SIGNIFICANT MERGERS IN THIS INDUSTRY, AND PARTICULARLY ANY THAT PROMISE
TO RAISE CONCENTRATION STILL HIGHER IN A METROPOLITAN AREA THAT ALREADY
APPEARS TO BE DANGEROUSLY CLOSE TO THE BORDERLINE BETWEEN EFFECTIVE
COMPETITION AND EFFECTIVE MONOPOLY, WILL RECEIVE THE MOST SEARCHING
ATTENTION FROM THIS AGENCY."  ID., AT . . .. 

/5/ TITLE 15 U.S.C. 21(L) PROVIDES: 

"ANY PERSON WHO VIOLATES ANY ORDER ISSUED BY THE COMMISSION OR BAORD
UNDER SUBSECTION (B) OF THIS SECTION AFTER SUCH ORDER HAS BECOME FINAL,
AND WHILE SUCH ORDER IS IN EFFECT, SHALL FORFEIT.AND PAY TO THE UNITED
STATES A CIVIL PENALTY OF NOT MORE THAN $5,000 FOR EACH VIOLATION,
WHICH SHALL ACCRUE TO THE UNITED STATES AND MAY BE RECOVERED IN A CIVIL
ACTION BROUGHT BY THE UNITED STATES.  EACH SEPARATE VIOLATION OF ANY
SUCH ORDER SHALL BE A SEPARATE OFFENSE, EXCEPT THAT IN THE CASE OF A
VIOLATION THROUGH CONTINUING FAILURE OR NEGLECT TO OBEY A FINAL ORDER
OF THE COMMISSION OR BAORD EACH DAY OF CONTINUANCE OF SUCH FAILURE OR
NEGLECT SHALL BE DEEMED A SEPARATE OFFENSE." 

/6/ TITLE 15 U.S.C. 45(L) PROVIDES: 

"ANY PERSON, PARTNERSHIP, OR CORPORATION WHO VIOLATES AN ORDER OF
THE COMMISSION TO CEASE AND DESIST AFTER IT HAS BECOME FINAL, AND WHILE
SUCH ORDER IS IN EFFECT, SHALL FORFEIT AND PAY TO THE UNITED STATES A
CIVIL PENALTY OF NOT MORE THAN $5,000 FOR EACH VIOLATION, WHICH SHALL
ACCRUE TO THE UNITED STATES AND MAY BE RECOVERED IN A CIVIL ACTION
BROUGHT BY THE UNITED STATES.  EACH SEPARATE VIOLATION OF SUCH AN ORDER
SHALL BE A SEPARATE OFFENSE, EXCEPT THAT IN THE CASE OF A VIOLATION
THROUGH CONTINUING FAILURE OR NEGLECT TO OBEY A FINAL ORDER OF THE
COMMISSION EACH DAY OF CONTINUANCE OF SUCH FAILURE OR NEGLECT SHALL BE
DEEMED A SEPARATE OFFENSE." 

THE MAXIMUM PENALTY FOR EACH VIOLATION UNDER 15 U.S.C. 45(L) HAS
SINCE BEEN INCREASED FROM $5,000 TO $10,000.  PUB. L. 93 - 153, 408(C),
87 STAT. 591. 

ALTHOUGH THE GOVERNMENT REQURESTED $1,000 PER DAY PER VIOLATION, THE
STATUTES PRESCRIBE NO MINIMUM PENALTY, AND THE DISTRICT COURT HAS
DISCRETION TO DETERMINE THE AMOUNT OF THE PENALTY FOR EACH VIOLATION
WHETHER THE TRANSACTIONS ARE CONSTRUED AS SINGLE OR AS CONTINUING
VIOLATIONS.  THUS, WHILE TOTALING THE PENALTY AS A SERIES OF DAILY
VIOLATIONS RATHER THAN AS A SINGLE VIOLATION COULD RAISE SUBSTANTIALLY
THE TOTAL PENALTY ASSESSED, THE STATUTORY SCHEME DOES NOT REQUIRE THAT
RESULT, AND THE TRIAL JUDGE'S DETERMINATION WOULD PREVAIL IN THE
ABSENCE OF AN ABUSE OF DISCRETION. 

/7/ THE COMPLAINT ALSO REQUESTED A PERMANENT INJUNCTION COMMANDING
FUTURE COMPLAINCE WITH THE CONSENT ORDER.  THE DISTRICT COURT FOUND
THAT IT WAS EMPOWERED IN A CIVIL PENALTY PROCEEDING BASED ON AN FTC
ORDER TO GRANT EQUITABLE RELIEF, AND IT ISSUED AN INJUNCTION IN THE
EXACT WORDS OF THE FTC ORDER.  THIS INJUNCTION EXPIRED, AS DID THE
CONSENT ORDER, ON MAY 15, 1972.  SEE N. 4, SUPRA.  SINCE THE COURT OF
APPEALS DECISION IN THIS CASE, CONGRESS HAS AMENDED 15 U.S.C. 45(L)
EXPRESSLY TO EMPOWER DISTRICT COURTS IN CIVIL PENALTY PROCEEDINGS TO
GRANT EQUITABLE RELIEF.  PUB. L. 93 - 153, 408(C), 87 STAT. 591. 

ALTHOUGH THE COMPLAINT DID NOT REQUEST A DIVESTITURE ORDER, THE
GOVERNMENT LATER REQUESTED DIVESTITURE, AND THIS REQUEST WAS EMBODIED
IN THE DISTRICT COURT'S PRETRIAL ORDER.  APP. 27.  HOWEVER, THE
DISTRICT COURT DECLINED TO ORDER THIS RELIEF, 1972 CCH TRADE CASES, AT
92, 129, AND THE COURT OF APPEALS AFFIRMED THIS DENIAL AS WITHIN THE
DISCRETION OF THE TRIAL COURT.  485 F.2D 16, 21 (CA10 1973). 

/8/ THE COURT IN ARMOUR NOTED THAT THE GOVERNMENT MIGHT BE ABLE TO
OBTAIN THE RELIEF SOUGH IN WAYS OTHER THAN BY CONSTRUCTION OF THE
CONSENT DECREE.  FIRST, IT COULD HAVE BROUGHT A NEW ACTION TO ENJOIN
THE ACQUISITION UNDER 7 OF THE CLAYTON ACT.  SECOND, "IF THE GOVERNMENT
BELIEVED THAT CHANGED CONDITIONS WARRANTED FURTHER RELIEF AGAINST THE
ACQUISITION, IT COULD HAVE SOUGHT MODIFICATION OF THE MEAT PACKERS
DECREE ITSELF."  402 U.S.,AT 674 - 675.  RESPONDENT ARGUES THAT THESE
ALTERNATIVES ARE ALSO PRESENT IN THIS CASE, AND THAT IT IS THEREFORE
UNNECESSARY TO ADOPT THE CONSTRUCTION OF THE ORDER URGED BY THE
GOVERNMENT.  HOWEVER, THE POSSIBLE AVAILABILITY OF OTHER MEANS OF
OBTAINING SANCTIONS AGAINST THE ACQUISTIONS CHALLENGED HERE CANNOT
PRECLUDE THE GOVERNMENT FROM OBTAINING WHATEVER PENALTIES MAY BE PROPER
FOR VIOLATIONS OF THE CONSENT ORDER. 

/9/ IN HUGHES V. UNITED STATES, 342 U.S. 353 (1952), THE COURT
LIKEWISE REJECTED AN INVITATION TO FURTHER THE ASSERTED "PURPOSES" OF
THE CONSENT DECREE BY APPROVING AN INTERPRETATION THE "LANGUAGE CANNOT
SUPPORT."  ID., AT 356.  IT NOTED THAT EVIDENCE MIGHT SHOW THAT THE
SALE REQUIREMENT WAS JUSTIFIED, BUT IT REGARDED THE CONSTRUCTION URGED
BY THE GOVERNMENT AS EFFECTING "A SUBSTANTIAL MODIFICATION OF THE
ORIGINAL DECREE."  ID., AT 357.  (EMPHASIS SUPPLIED.)  WHILE IT
BELIEVED THIS MODIFICATION COULD BE HAD AFTER A PROPER HEARING PROVING
THE NEED FOR SUCH MODIFICATION UNDER APPLICABLE STANDARDS, IT WOULD NOT
SANCTION SUCH MODIFICATION IN THE GUISE OF CONSTRUING A CONSENT
DECREE.  ID., AT 357 - 358. 

SIMILARLY, IN UNITED STATES V. ATLANTIC REFINING CO., 360 U.S. 19
(1959), WHILE THE COURT AGREED THAT THE INTERPRETATION OFFERED BY THE
GOVERNMENT MIGHT BETTER EFFECTUATE THE PURPOSES OF THE ACTS ASSERTEDLY
VIOLATED, THIS "DOES NOT WARRANT OUT S BSTANTIALLY HANGING THE TERMS OF
A DECREE TO WHICH THE PARTIES CONSENTED WITHOUT ANY ADJUDICATION OF THE
ISSUES.  AND WE AGREE WITH THE DISTRICT COURT THAT ACCEPTING THE
GOVERNMENT'S PRESENT INTERPRETATION WOULD DO JUST THAT."  ID., AT 23. 
(EMPHASIS SUPPLIED.)  AGAIN, THE COURT NOTED THAT MODIFICATION MIGHT BE
APPROPRIATE, BUT MODIFICATION DISGUISED AS CONSTRUCTION WAS NOT.  SEE
ALSO LIQUID CARBONIC CORP. V. UNITED STATES, 350 U.S. 869 (1955), REV'G
123 F.SUPP.  653 (EDNY 1954); UNITED STATES V. INTERNATIONAL HARVESTER
CO., 274 U.S. 693 (1927). 

/10/ CONSENT DECREES AND ORDERS HAVE ATTRIBUTES BOTH OF CONTRACTS
AND OF JUDICIAL DECREES, OR, IN THIS CASE, ADMINISTRATIVE ORDERS. 
WHILE THEY ARE ARRIVED AT BY NEGOTIATION BETWEEN THE PARTIES AND OFTEN
ADMIT NO VIOLATION OF LAW, THEY ARE MOTIVATED BY THREATENED OR PENDING
LITIGATION AND MUST BE APPROVED BY THE COURT OR ADMINISTRATIVE AGENCY. 
COMPARE UNITED STATES V. SWIFT & CO., 286 U.S. 106, 115 (1932), WITH
THE LANGUAGE IN ARMOUR CITED IN THE TEXT, SUPRA, AT 235 - 236.  BECAUSE
OF THIS DUAL CHARACTER, CONSENT DECREES ARE TREATED AS CONTRACTS FOR
SOME PURPOSES BUT NOT FOR OTHERS.  SEE JINKINSON, NEGOTIATION OF
CONSENT DECREES, 9 ANTITRUST BULL.  673, 675 - 676 (1964); HANDLER,
TWENTY-FOURTH ANNUAL ANTITRUST REVIEW, 72 COL.L.REV.  1, 33 - 34
(1972). 

/11/ "ASSUMING THAT A CONSENT DECREE IS TO BE INTERPRETED AS A
CONTRACT, IT WOULD SEEM TO FOLLOW THAT EVIDENCE OF EVENTS SURROUNDING
ITS NEGOTIATION AND TENDING TO EXPLAIN AMBIGUOUS TERMS WOULD BE
ADMISSIBLE IN EVIDENCE."  HANDLER, SUPRA, N. 10, AT 23 N. 148. 

/12/ RESPONDENT ARGUES THAT EVEN IF THE COMPLAINT AND APPENDIX CAN
BE USED AS AIDS TO CONSTRUCTION, THEY ONLY SHOW THAT THE PARTIES COULD
USE BROADER LANGUAGE THAN THAT IN THE ORDER ITSELF, MAKING THE LIMITED
LANGUAGE ACTUALLY USED HIGHLY SIGNIFICANT AND CONTROLLING.  ONE COURT
OF APPEALS HAS SED SIMILAR REASONING TO APPROVE A STRICT READING OF A
CONSENT DECREE WHICH WAS ACCOMPANIED BY A COLLATERAL AGREEMENT. 
ARTVALE, INC. V. RUGBY FABRICS CORP., 303 F.2D 283 (CA2 1962). 
HOWEVER, THIS REASONING IS ERRONEOUS AS APPLIED TO THIS CASE.  WHERE
PARTIES IN ONE AGREEMENT INCLUDE BOTH A CONSENT ORDER AND AN
EXPLANATION OF THAT ORDER, AND ALSO PROVIDE THAT THE COMPLAINT IS TO BE
USED TO CONSTRUE THE ORDER, IT SEEMS LOGICAL TO CONCLUDE THAT, AT LEAST
AS TO INTERPRETATIONS NOT PRECLUDED BY THE WORDS OF THE ORDER ITSELF,
THE COLLATERAL DOCUMENTS CAN AND SHOULD BE USED TO GIVE MEANING TO THE
WORDS OF THE ORDER. 

/13/ THE FIRST PARAGRAPH OF 7, AT THE TIME THE DU PONT CASE WAS
BROUGHT, PROVIDED: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE THE EFFECT OF
SUCH ACQUISITION MAY BE TO SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE
CORPORATION WHOSE STOCK IS SO ACQUIRED AND THE CORPORATION MAKING THE
ACQUISITION, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY,
OR TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE."  15 U.S.C. 18
(1946 ED.). 

THE STATUTE WAS AMENDED IN 1950 TO PROVIDE: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 
15 U.S.C. 18. 

WHILE THE CHANGE IN THE WORDING IS SUBSTANTIAL, NO REASON SUGGESTS
ITSELF WHY THE MEANING OF "ACQUIRE" AND "ACQUISITION" SHOULD DIFFER IN
THE TWO VERSIONS.  DU PONT WAS DECIDED SEVERAL YEARS AFTER THE 1950
AMENDMENTS AND MAKES NOT THE SLIGHTEST SUGGESTION THAT THE RESUTL
PERTINENT HERE WOULD NOT OBTAIN UNDER THE NEW VERSION. 

/14/ THE DISSENT IN DU PONT RECOGNIZED THAT THIS WAS THE IMPORT OF
THIS HOLDING, WITH WHICH IT DISAGREED.  353 U.S. 586, 619 - 621 (1957)
(BURTON, J., DISSENTING). 

SOME LOWER FEDERAL COURTS HAVE ALSO RECOGNIZED THAT THE STATUS
APPROACH TO ACQUISITION IS THE PROPER ONE.  SEE GOTTESMAN V. GENERAL
MOTORS CORP., 414 F.2D 956, 965 (CA2 1969):  "(THE VERY ACQUISITION AND
POSITION OF POTENTIAL CONTROL WHICH WAS FOUND VIOLATIVE OF THE CLAYTON
ACT AS OF 1949 (IN DU PONT) CONTINUED THROUGH 1961 . . .. (W)  HAT WAS
UNLAWFUL WAS DU PONT'S STATUS AS STOCKHOLDER IN GENERAL MOTORS, AND
THAT STATUS CONTINUED UNTIL DIVESTITURE."  (EMPHASIS DIVESTITURE." 
(EMPHASIS SUPPLIED.)  SEE ALSO UNITED STATES V. SCHINE, 260 F.2D 552,
555 - 556 (CA2 1958):  "(IT IS THE MAINTENANCE OF CONDITIONS IN
VIOLATION OF THE DECREE (PROHIBITING ACQUISITIONS, AMONG OTHER THINGS)
WHICH IS THE CHARGE AGAINST THE RESPONDENTS."  THEREFORE, THE COURT IN
S HINE CONCLUDED, IT WAS IRRELEVANT THAT THE INITIAL TRANSACTIONS
OCCURRED PRIOR TO THE STATUTORY LIMITATIONS PERIOD. 

MR. JUSTICE STEWART, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
POWELL, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

THE RESPONDENT'S PREDECESSOR, CONTINENTAL, MADE CORPORATE
ACQUISITIONS IN VIOLATION OF A 1962 CONSENT ORDER THAT, IN PERTINENT
PART, PROHIBITED CONTINENTAL FROM "ACQUIRING" DESCRIBED BAKING
COMPANIES.  THE GOVERNMENT SOUGHT TO IMPOSE DAILY PENALTIES UPON
CONTINENTAL FOR THE CONTINUED HOLDING OF THOSE ASSETS.  THE
GOVERNMENT'S THEORY WAS THAT DILAY PENALTIES WERE APPROPRIATE BECAUSE
CONTINENTAL'S RETENTION OF THE ASSETS WAS A "CONTINUING FAILURE OR
NEGLECT TO OBEY A FINAL ORDER," WITHIN THE MEANING OF THE RELEVANT
CIVIL PENALTIES STATUTES, 15 U.S.C. 21(L), 45(L).  /1/ THE ISSUE IN
THIS CASE IS WHETHER THE CONSENT ORDER CAN BE SO CONSTRUED.  /2/ THE
DISTRICT COURT AND THE COURT OF APPEALS RULED THAT THE CONSENT ORDER
PROHIBITED ONLY THE DISTINCT ACTS OF "ACQUIRING" THE BAKERIES, NOT THE
"RETAINING" OR THE "HOLDING" OF THE ASSETS AFTER ACQUISITION.  THE
COURT OF APPEALS INDICATED THAT AN ORDER TO DIVEST WOULD HAVE BEEN AN
APPROPRIATE REMEDY FOR THE UNLAWFUL ACQUISITIONS, BUT HELD THAT THE
RETENTION OF THE ASSETS WAS NOT IN ITSELF A CONTINUING REFUSAL TO OBEY
THE CONSENT ORDER SUCH AS WOULD SUPPORT THE SANCTION OF DAILY
PENALTIES.  I THINK THAT UNDER OUR CONTROLLING PRECEDENTS, THE DISTRICT
COURT AND THE COURT OF APPEALS WERE CLEARLY CORRECT.     THE GOVERNING
RULE OF CONSTRUCTION, AND ITS RATIONALE, WERE STATED PLAINLY AND APTLY
BY THIS COURT IN UNITED STATES V. ARMOUR & CO., 402 U.S. 673, 681 - 682
(1971): 

     "CONSENT DECREES ARE ENTERED INTO BY PARTIES TO A CASE AFTER

  CAREFUL NEGOTIATION HAS PRODUCED AGREEMENT ON THEIR PRECISE

  TERMS.  THE PARTIES WAIVE THEIR RIGHT TO LITIGATE THE ISSUES

 INVOLVED IN THE CASE AND THUS SAVE THEMSELVES THE TIME, EXPENSE,

  AND INEVITABLE RISK OF LITIGATION.  NATURALLY, THE AGREEMENT

  REACHED NORMALLY EMBODIES A COMPROMISE; IN EXCHANGE FOR THE

  SAVING OF COST AND ELIMINATION OF RISK, THE PARTIES EACH GIVE UP

  SOMETHING THEY MIGHT HAVE WON HAD THEY PROCEED WITH THE

  LITIGATION.  THUS THE DECREE ITSELF CANNOT BE SAID TO HAVE A

  PURPOSE; RATHER THE PARTIES HAVE PURPOSES, GENERALLY OPPOSED TO

  EACH OTHER, AND THE RESULTANT DECREE EMBODIES AS MUCH OF THOSE

  OPPOSING PURPOSES AS THE RESPECTIVE PARTIES HAVE THE BARGAINING

  POWER AND SKILL TO ACHIEVE.  FOR THESE REASONS, THE SCOPE OF A

CONSENT DECREE MUST BE DISCERNED WITHIN ITS FOUR CORNERS, AND NOT

  BY REFERENCE TO WHAT MIGHT SATISFY THE PURPOSES OF ONE OF THE

  PARTIES TO IT.  BECAUSE THE

DEFENDANT HAS, BY THE DECREE, WAIVED HIS RIGHT TO LITIGATE THE ISSUES
RAISED, A RIGHT GUARANTEED TO HIM BY THE DUE PROCESS CLAUSE, THE
CONDITIONS UPON WHICH HE HAS GIVEN THAT WAIVER MUST BE RESPECTED, AND
THE INSTRUMENT MUST BE CONSTRUED AS IT IS WRITTEN, AND NOT AS IT MIGHT
HAVE BEEN WRITTEN HAD THE PLAINTIFF ESTABLISHED HIS FACTUAL CLAIMS AND
LEGAL THEORIES IN LITIGATION."  (EMPHASIS ADDED; FOOTNOTE OMITTED.) 
SEE ALSO UNITED STATES V. ATLANTIC REFINING CO., 360 U.S. 19 (1959);
HUGHES V. UNITED STATES, 342 U.S. 353 (1952). 

THE APPLICATION OF THIS STRAIGHTFORWARD STANDARD TO THE CONSENT
ORDER HERE IS HARDLY A DIFFICULT TASK.  THE ORDER LITERALLY PROHIBITS
ONLY THE "ACQUIRING" OF THE FORBIDDEN ASSETS.  ONCE AN ACQUISITION WAS
CONSUMMATED, THE VIOLATION WAS COMPLETE.  A PROHIBITION ON THE
RETNETION OF ASSETS CANNOT BE FOUND IN ANY PROVISION OF THE ORDER. 
BECAUSE THE ORDER IS A COMPROMISE AGREEMENT NEGOTIATED WITHOUT ANY
ADJUDICATION OF ANTITRUST LIABILITY, WE ARE NOT AT LIBERTY UNDER ARMOUR
TO CONSTRUE THE UNAMBIGUOUS TERM "ACQUIRING" IN THE LIGHT OF CONJECTURE
OR ARGUMENT ABOUT THE "PURPOSES" OF THE DECREE OR OF THE PARTIES.  WE
MAY NOT, CONSISTENT WITH ARMOUR, CONCLUDE THAT THE GOVERNMENT INTENDED
THAT THE ORDER SHOULD PROHIBIT AS A CONTINUING OFFENSE THE RETENTION OF
UNLAWFULLY ACQUIRED ASSETS, WHEN THE GOVERNMENT DID NOT INSIST UPON
LANGUAGE OBJECTIVELY MANIFESTING THAT INTENTION.  NOR MAY WE CONCLUDE
THAT CONTINENTAL AGREED TO RESTRICT ITS FUTURE BUSINESS CONDUCT OR
BECOME S BJECT TO PENALTIES IN ANY MANNER NOT CLEARLY DELINEATED IN THE
ORDER ITSELF.  THE PROVISIONS OF THE ORDER ARE SOMETHING LESS THAN THE
GOVERNMENT COULD HAVE SOUGHT AND MIGHT HAVE OBTAINED.  THE RULE OF
CONSTRUCTION OF CONSENT DECREES, HOWEVER, DEPENDS, NOT UPON AN
EXPEDIENT CONSTRUCT OF WHAT THE PARTIES ARE THOUGHT TO HAVE INTENDED,
BUT UPON THE EXPLICIT PROVISIONS TO WHICH THE PARTIES HAVE AGREED. 

AFTER GIVING A CASUAL NOD IN THE DIRECTION OF THE STANDARD OF
CONSTRUCTION REQUIRED BY ARMOUR, THE COURT EMBARKS UPON A LABORIOUS
SEARCH FOR "PURPOSES" THAT ARE "INCORPORATED IN" THE CONSENT ORDER IN
ORDER TO CHANGE THE MEANING OF THE UNAMBIGUOUS TERM "ACQUIRING."  WE
ARE LED THROUGH THE ANTECEDENT COMPLAINT, THROUGH AN APPENDIX TO THE
CONSENT ORDER, THROUGH THE INTRICACIES OF AN OPINION OF THIS COURT
CONSTRUING THE TERM "ACQUISITION" IN LIGHT OF THE POLICIES UNDERLYING
THE CLAYTON ACT, AND THROUGH THE LEGISLATIVE HISTORY OF THE STATUTORY
PROVISIONS THAT IMPOSE DAILY PENALTIES FOR CONTINUING REFUSALS TO OBEY
COMMISSION ORDERS.  DRAWING UPON THESE DISPARATE SOURCES, THE COURT
DETERMINES THAT THE CONSENT ORDER, DESPITE ITS LITERAL LANGUAGE, MUST
BE CONSTRUED TO PROHIBIT NOT ONLY THE PROSCRIBED ACQUISITIONS BUT ALSO
THE "RETENTION" OF UNLAWFULLY ACQUIRED ASSETS.  /3/ ONE IS REMINDED OF
AN OBSERVATION ONCE MADE BY MR. JUSTICE GRIER IN A SOMEWHAT DIFFERENT
CONTEXT:  "(THE FACT THAT IT REQUIRED SO INGENIOUS AND LABORED AN
ARGUMENT BY MY LEARNED BROTHER TO VINDICATE SUCH A CONSTRUCTION . . .
SEEMS TO ME, OF ITSELF, CONCLUSIVE EVIDENCE THAT THE CONSTRUCTION
SHOULD NOT BE GIVEN TO IT."  THE BINGHAMTON BRIDGE, 3 WALL.  51, 83
(DISSENTING OPINION). 

WHAT THE COURT DOESTODAY IS TO PROCLAIM A NEU RULE OF CONSTRUCTION
FOR CONSENT ORDERS OR DECREES TOTALLY AT ODDS WITH OUR PREVIOUS
DECISIONS: 

     "SINCE A CONSENT DECREE OR ORDER IS TO BE CONSTRUED FOR

  ENFORCEMENT PURPOSES BASICALLY AS A CONTRACT, RELIANCE UPON

  CERTAIN AIDS TO CONSTRUCTION IS PROPER, AS WITH ANY OTHER

  CONTRACT.  SUCH AIDS INCLUDE THE CIRCUMSTANCES SURROUNDING THE

  FORMATION OF THE CONSENT ORDER, ANY TECHNICAL MEANING WORDS USED

MAY HAVE HAD TO THE PARTIES, AND ANY OTHER DOCUMENTS EXPRESSLY

  INCORPORATED IN THE DECREE."  ANTE, AT 238. 

THIS NOVEL APPROACH, FOR WHICH THE COURT CITES NOT A SINGLE
SUPPORTING PRECEDENT, IS DIRECTLY CONTRARY TO THE "FOUR CORNERS" RULE
OF ARMOUR.  FOR AN INQUIRING INTO THE PURPOSE OF A CONSENT DECREE IS
PRECISELY WHAT THAT RULE FORECLOSES:  "(THE SCOPE OF A CONSENT DECREE
MUST BE DISCERNED WITHIN ITS FOUR CORNERS, AND NOT BY REFERENCE TO WHAT
MIGHT SATISFY THE PURPOSES OF ONE OF THE PARTIES TO IT."  402 U.S.,AT
682.  THE COURT TODAY THUS INDULGES IN PRESCISELY THE EXERCISE THAT
ARMOUR SOUGHT TO PRECLUDE:  A WIDE-RANGING SEARCH FOR A "PURPOSE" IN A
DECREE THAT, AS EXPLAINED IN ARMOUR, CANNOT BE SAID TO HAVE A PURPOSE
EXCEPT TO DELINEATE EXPLICITLY THE TERMS AND PROVISIONS OF THE
SETTLEMENT THAT THE PARTIES NEGOTIATED.  /4/ 

BEFORE STRAINING TO PULL THE GOVERNMENT'S CHESTNUTS OUT OF THE FIRE,
THE COURT SHOULD COUNT WITH GREATER CARE THE COSTS OF ABANDONING THE
RULE STATED IN ARMOUR.  UNTIL TODAY, THE PARTIESTO ANY CONSENT DECREE
COULD HAVE CONFIDENCE THAT ITS EXPLICIT TERMS ALONE WOULD CONTROL THE
JUDICIAL CONSTRUCTION OF ITS PROHIBITORY LANGUAGE.  NOW, OTHERWISE
UNAMBIGUOUS TERMS OF A CONSENT DECREE MAY BE CONSTRUED IN LIGHT OF SUCH
CONSIDERATIONS AS THE ANTECEDENT COMPLAINT, THE "MEANING"  OF ANTITRUST
DECISIONS, AND THE POLICIES SAID TO UNDERLIE THE THE STATUTORY
PROVISION FOR DAILY PENALTIES.  CERTAINTY AND REASONED RELIEANCE HAVE
ALWAYS BEEN THE SINE QUA NON OF THE CONSENT ORDERS THAT TERMINATE ABOUT
70% TO 80% OF THE ANTITRUST COMPLAINTS THAT ARE FILED BY THE JUSTICE
DEPARTMENT.  /5/ BUT AFTER TODAY'S DECISION THAT KIND OF CERTAINTY WILL
NO LONGER EXIST.  FOR THERE WILL BE NO APPARENT LIMIT ON THE POWER OF
THE JUDICIARY TO ALTER THE PLAIN LANGUAGE OF AN ORDER IN LIGHT OF THE
"CIRCUMSTANCES SURROUNDING THE ORDER AND THE CONTEXT IN WHICH THE
PARTIES WERE OPERATING."  ANTE, AT 243.  IF A NEGOTIATED CONSENT DECREE
FAILS TO LEAVE A DISPUTE CLEARLY AND FIRMLY SETTLED, THE NECESSARY
RESULT WILL BE THAT THOSE CHARGED WITH ANTITRUST VIOLATIONS WILL BE
LESS INCLINED TO SETTLE THEIR CASES AND MORE APT TO INSIST UPON TIME
CONSUMING AND COSTLY LITIGATION.  TODAY'S DECISION WILL ALSO POSE
SERIOUS DIFFICULTIES FOR THE ENFORCEMENT OF ALL EXISTING AND ALL FUTURE
CONSENT DECREES.  FOR, AS MR. JUSTICE JACKSON ONCE OBSERVED, "THE
VALIDITY OF A DOCTRINE DOES NOT DEPEND ON WHOSE OX IT GORES."  /6/ THE
SAME PURPOSE-ORIENTED TECHNIQUES OF CONSTRUCTION THAT THE COURT TODAY
SERVES UP TO EXPAND THIS CONSENT ORDER BEYOND ITS TERMS CAN BE EXPECTED
TO BE AVAILED OF BY ALLEGED VIOLATORS OF CONSENT ORDERS WHO WILL SEEK
TO NARROW AND THEREBY TO EVADE THE PLAIN LANGUAGE OF ANY PROHIBITION. 

THE COURT CONCLUDES THAT "IF VIOLATION OF AN ORDER PROHIBITING
'ACQUIRING' ASSETS WERE TREATED AS A SINGLE VIOLATION, ANY DETERRENT
EFFECT OF THE PENALTY PROVISIONS WOULD BE ENTIRELY UNDERMINED, AND THE
PENALTY WOULD BE CONVERTED INTO A MINOR TAX UPON A VIOLATION WHICH
COULD REAP LARGE FINANCIAL BENEFITS TO THE PERPETRATOR."  ANTE, AT
232.  THIS IS NOT MERELY OVERTSTATEMENT; IT IS INCORRECT.  BOTH THE
PARTIES AGREE, AND THE COURT OF APPEALS HELD, THAT AN ORDER TO DIVEST
UNLAWFULLY ACQUIRED ASSETS IS AN APPROPRIATE REMEDY FOR VIOLATION OF A
CONSENT ORDER BARRING ACQUISITION.  MOREOVER, THE ARMOUR RULE OF
CONSTRUCTION WOULD NOT IMPAIR IN ANY WAY THE POWER OF THE GOVERNMENT,
IN FUTURE CASES, TO OBTAIN THROUGH NEGOTIATIONS CONSENT ORDERS THAT
CONTAIN A CLEAR AND EXPLICIT DESCRIPTION OF THE CONDUCT THAT IS
PROHIBITED.  /7/ 

IN MY VIEW, THE COURT'S DEPARTURE FROM PRECEDENT THREATENS TO RETARD
SIGNIFICANTLY THE EFFECTIVE USE OF CONSENT DECREES IN THE
ADMINISTRATION OF THE ANTITRUST LAWS.  I WOULD ADHERE TO THE RULE
STATED IN ARMOUR THAT "THE SCOPE OF A CONSENT DECREE MUST BE DISCERNED
WITHIN ITS FOUR CORNERS, AND NOT BE REFERENCE TO WHAT MIGHT SATISFY THE
PURPOSES OF ONE OF THE PARTIES TO IT."  402 U.S., AT 682 (EMPHASIS
ADDED).  APPLYING THIS STANDARD, I WOULD AFFIRM THE CONSIDERED
JUDGMENTS OF THE DISTRICT COURT AND THE COURT OF APPEALS. 

/1/ THESE PROVISIONS ARE SET OUT IN FULL IN THE COURT'S OPINION, ANTE,
AT 228 - 229, NN. 5, 6. 

/2/ FOR THE REASONS STATED BY THE COURT, I AGREE THAT THE OTHER
ISSUES THAT THE RESPONDENT SEEKS TO RAISE IN THIS CASE NEED NOT AND
SHOULD NOT BE ADDRESSED. 

/3/ UPON THIS PREMISE, THE COURT THEN PROCEEDS TO HOLD THAT THE
CONJURED-UP "CONTINUING OFFENSE" OF RETAINING THESE ASSETS IS A
"CONTINUING FAILURE OR NEGLECT TO OBEY A FINAL ORDER" WITHIN THE
MEANING OF THE DAILY-PENALTY STATUTES.  15 U.S.C. 21(L) AND 45(L).  BUT
EVEN IF THE CONSENT ORDER COULD BE CORRECTLY READ TO PROHIBIT NOT ONLY
THE ACQUISITION OF THE DESCRIBED ASSETS BUT ALSO THE RETENTION OF
ASSETS UNLAWFULLY ACQUIRED, IT IS FAR FROM CRYSTAL CLEAR THAT THE
"CONTINUING OFFENSE" OF RETAINING THE ASSETS WOULD BE A "CONTINUING
FAILURE OR NEGLECT TO OBEY A FINAL ORDER" WITHIN THE MEANING OF THE
DAILY-PENALTY STATUTES.  PENALTY PROVISIONS MUST BE STRICTLY CONSTRUED,
AND DUE PROCESS REQUIRES THAT SUCH PROVISIONS MUST GIVE FAIR WARNING OF
THE CONDUCT THAT INVOKES THEIR EXTRAORDINARY SANCTION.  CF. GIACCIO V.
PENNSYLVANIA, 382 U.S. 399.  THE LEGISLATIVE HISTORY OF THE DAILY
PENALTY STATUTES, AS RECITED IN THE COURT'S OPINION, SHOWS THAT THE
MISCHIEF SOUGHT TO BE REMEDIED WAS PRECISELY THE MISCHIEF TO WHICH
CONGRESS ADDRESSED ITS LANGUAGE:  A "CONTINUING FAILURE OR NEGLECT TO
OBEY A FINAL ORDER," AS, FOR EXAMPLE, THE REFUSAL TO DIVEST AFTER A
SPECIFIC ORDER OF DIVESTITURE HAS BEEN ENTERED. 

/4/ WHATEVER THE UTILITY OF EXTRINSIC AIDS IN CONSTRUING A TYPICAL
COMMERCIAL CONTRACT, THIS TECHNIQUE IS SINGULARLY INAPPROPRIATE IN AN
AREA WHERE CERTAINTY OF PROHIBITION IS NECESSARY AND WHERE, ARMOUR
MAKES CLEAR, THERE CAN BE FOUND NO GUIDING PURPOSE UNDERLYING A
NEGOTIATED DECREE.  MOREOVER, EVEN ASSUMING ARGUENDO, THAT SUCH AIDS
MIGHT BE ADMISSIBLE TO CONSTRUE BORDERLINE ISSUES OF APPLICATION--FOR
EXAMPLE, WHETHER A PARTICULAR ACQUIRED COMPANY WAS ENGAGED IN THE
PRODUCTION OF "BREAD-TYPE" ROLLS WITHIN THE MEANING OF THE CONSENT
ORDER--SUCH AIDS MUST NOT BE USED TO IMPOSE A WHOLLY SEPARATE
PROHIBITORY REQUIREMENT UPON A COMPANY THAT CONSENTED TO BE BOUND ONLY
BY THE PLAIN LANGUAGE OF THE CONSENT ORDER.  THIS IS DEMONSTRABLY NOT A
CASE OF AMBIGUITY OR OF BORDERLINE CONSTRUCTION.  IT IS A CASE,
INSTEAD, WHERE THE COURT HAS USED EXTRINSIC AIDS TO ALTER A TERM THAT
IS, ON ITS FACE, WHOLLY UNAMBIGUOUS. 

THE COURT RELIES UPON THE DECISION IN UNITED STATES V. DU PONT, 353
U.S. 586, FOR THE PROPOSITION THAT THE TERM "ACQUIRE" IN A CONSENT
ORDER IS A TERM OF ART THAT PROHIBITS A "STATUS WHICH CONTINUES UNTIL
THE TRANSACTION IS UNDONE."  ANTE, AT 242.  BUT THE COURT'S RELIANCE ON
THE POLICY CONSIDERATIONS DISCUSSED IN THE DU PONT OPINION IS WHOLLY
INCONSISTENT WITH THE ARMOUR RULE.  THE OPINION IN UNITED STATES V. DU
PONT DOES NOT, IN ANY EVENT, RENDER THE TERM "ACQUIRING" IN A CONSENT
DECREE A TERM OF ART. THAT CASE ADDRESSED THE POSITIVE REACH OF THE
CLAYTON ACT UNDER CERTAIN CIRCUMSTANCES.  THE COURT FAILS TO EXPLAIN
HOW ITS OPINION THERE HAS SERVED TO TRANSFORM THE PLAIN TERM
"ACQUIRING" INTO A "TERM OF ART" THAT WOULD BY COMMON UNDERSTANDING
HAVE THE MEANING THAT THE COURT TODAY ASCRIBES TO IT. 

/5/ NOTE, 73 COL.L.REV.  594 (1973). 

/6/ WELLS V. SIMONDS ABRASIVE CO., 345 U.S. 514, 525 (DISSENTING
OPINION 

/7/ THE GOVERNMENT INFORMS US THAT AS OF MAY 1974 THERE WERE
OUTSTANDING 54 CONSENT ORDERS WITH LANGUAGE THAT PROHIBITS ACQUIRING
CERTAIN ASSETS BUT DOES NOT EXPRESSLY PROHIBIT THE RETAINING OF THESE
ASSETS.  THIS COURT NEED NOT ASSUME THAT FLAGRANT VIOLATIONS OF CONSENT
ORDERS WILL OCCUR, NOR THAT THE REMEDIES OF DIVESTITURE AND FINE FOR
THE SINGLE OFFENSE OF ACQUISITION WILL NOT ADEQUATELY DETER UNLAWFUL
CONDUCT. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  ON THE BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY
GENERAL KAUPER, HOWARD E. SHAPIRO, AND GEORGE EDELSTEIN. 

JOHN H. SCHAFER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS MICHAEL BOUDIN. 
..END :















NLRB V. WEIGARTEN, INC., 420 U.S. 251 


       NATIONAL LABOR RELATIONS BOARD V. J. WEINGARTEN, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 73 - 1363.  ARGUED NOVEMBER 18, 1974--DECIDED FEBRUARY

19, 1975; 485 F.2D 1135, REVERSED AND REMANDED. 


    DURING THE COURSE OF AN INVESTIGATIVE INTERVIEW AT WHICH AN

  EMPLOYEE OF RESPONDENT WAS BEING INTERROGATED BY A REPRESENTATIVE

  OF RESPONDENT EMPLOYER ABOUT REPORTED THEFTS AT RESPONDENT'S

  STORE, THE EMPLOYEE ASKED FOR BUT WAS DENIED THE PRESENCE AT THE

  INTERVIEW OF HER UNION REPRESENTATIVE.  THE UNION THEREUPON FILED

  AN UNFAIR LABOR PRACTICE CHARGE WITH THE NATIONAL LABOR RELATIONS

  BOARD (NLRB).  IN ACCORDANCE WITH ITS CONSTRUCTION IN MOBIL OIL

CORP., 196 N.L.R.B. 1052, ENFORCEMENT DENIED, 482 F.2D 842, AND

  QUALITY MFG. CO., 195 N.L.R.B. 197, ENFORCEMENT DENIED, 481 F.2D

  1018, REV'D, POST, P. 276, THE NLRB HELD THAT THE EMPLOYER HAD

  COMMITED AN UNFAIR LABOR PRACTICE AND ISSUED A CEASE-AND-DESIST

  ORDER, WHICH, HOWEVER, THE COURT OF APPEALS SUBSEQUENTLY REFUSED

  TO ENFORCE, CONCLUDING THAT AN EMPLOYEE HAS NO "NEED" FOR UNION

  ASSISTANCE AT AN INVESTIGATIVE INTERVIEW.  [ELD:  THE EMPLOYER

  VIOLATED 8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT BECAUSE IT

INTERFERED WITH, RESTRAINED, AND COERCED THE INDIVIDUAL RIGHT OF

  AN EMPLOYEE, PROTECTED BY 7, "TO ENGAGE IN . . . CONCERTED

  ACTIVITIES FOR . . . MUTUAL AID OR PROTECTION . . .," WHEN IT

  DENIED THE EMPLOYEE'S REQUEST FOR THE PRESENCE OF HER UNION

  REPRESENTATIVE AT THE INVESTIGATIVE INTERVIEW THAT THE EMPLOYEE

  REASONABLY BELIEVED WOULD RESULT IN DISCIPLINARY ACTION.  PP. 256

  - 268. 

     (A) THE NLRB'S HOLDING IS A PERMISSIBLE CONSTRUCTION OF

  "CONCERTED ACTIVITIES FOR . . . MUTUAL AID OR PROTECTION" BY THE

  AGENCY CHARGED BY CONGRESS WITH ENFORCEMENT OF THE ACT.  PP. 260

  - 264. 

     (B) THE NLRB HAS THE "SPECIAL FUNCTION OF APPLYING THE GENERAL

  PROVISIONS OF THE ACT TO THE COMPLEXITIES OF INDUSTRIAL LIFE,"

  NLRB V. ERIE RESISTOR CORP., 373 U.S. 221, 236, AND ITS SPECIAL

  COMPETENCE IN THIS FIELD IS THE JUSTIFICATION FOR THE DEFERENCE

ACCORDED ITS DETERMINATION.  PP. 264 - 267. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, WHITE, MARSHALL, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

 BURGER, C. J., FILED A DISSENTING OPINION, POST, P. 268.  POWELL,

  J., FILED A DISSENTING OPINION, IN WHICH STEWART, J., JOINED,

  POST, P. 269. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD HELD IN THIS CASE THAT RESPONDENT
EMPLOYER'S DENIAL OF AN EMPLOYEE'S REQUEST THAT HER UNION
REPRESENTATIVE BE PRESENT AT AN INVESTIGATORY INTERVIEW WHICH THE
EMPLOYEE REASONABLY BELIEVED MIGHT RESULT IN DISCIPLINARY ACTION
CONSTITUTED AN UNFAIR LABOR PRACTICE IN VIOLATION OF 8(A)(1) OF THE
NATIONAL LABOR RELATIONS ACT, /1/ AS AMENDED, 61 STAT. 140, BECAUSE IT
INTERFERED WITH, RESTRAINED, AND COERCED THE INDIVIDUAL RIGHT OF THE
EMPLOYEE, PROTECTED BY 7 OF THE ACT, "TO ENGAGE IN . . . CONCERTED
ACTIVITIES FOR . . . MUTUAL AID OR PROTECTION . . .."  /2/ 202 N.L.R.B.
446 (1973).  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD THAT THIS
WAS AN IMPERMISSIBLE CONSTRUCTION OF 7 AND REFUSED TO ENFORCE THE
BOARD'S ORDER THAT DIRECTED RESPONDENT TO CEASE AND DESIST FROM
REQUIRING ANY EMPLOYEE TO TAKE PART IN AN INVESTIGATORY INTERVIEW
WITHOUT UNION REPRESENTATION IF THE EMPLOYEE REQUESTS REPRESENTATION
AND REASONABLY FEARS DISCIPLINARY ACTION.  485 F.2D 1135 (1973).  /3/
WE GRANTED CERTIORARI AND SET THE CASE FOR ORAL ARGUMENT WITH NO. 73 -
765, GARMENT WORKERS V. QUALITY MFG. CO., POST, P. 276, 416 U.S. 969
(1974).  WE REVERSE. 

        I 

RESPONDENT OPERATES A CHAIN OF SOME 100 RETAIL STORES WITH LUNCH
COUNTERS AT SOME, AND SO-CALLED LOBBY FOOD OPERATIONS AT OTHERS,
DISPENSING FOOD TO TAKE OUT OR EAT ON THE PREMISES.  RESPONDENT'S SALES
PERSONNEL ARE REPRESENTED FOR COLLECTIVE-BARGAINING PURPOSES BY RETAIL
CLERKS UNION, LOCAL 455.  LEURA COLLINS, ONE OF THE SALES PERSONNEL,
WORKED AT THE LUNCH COUNTER AT STORE NO. 2 FROM 1961 TO 1970 WHEN SHE
WAS TRANSFERRED TO THE LOBBY OPERATION AT STORE NO. 98.  RESPONDENT
MAINTAINS A COMPANYWIDE SECURITY DEPARTMENT STAFFED BY "LOSS PREVENTION
SPECIALISTS" WHO WORK UNDERCOVER IN ALL STORES TO GUARD AGAINST LOSS
FROM SHOPLIFTING AND EMPLOYEE DISHONESTY.  IN JUNE 1972, "SPECIALIST"
HARDY, WITHOUT THE KNOWLEDGE OF THE STORE MANAGER, SPENT TWO DAYS
OBSERVING THE LOBBY OPERATION AT STORE NO. 98 INVESTIGATING A REPORT
THAT COLLINS WAS TAKING MONEY FROM A CASH REGISTER.  WHEN HARDY'S
SURVEILLANCE OF COLLINS AT WORK TURNED UP NO EVIDENCE TO SUPPORT THE
REPORT, HARDY DISCLOSED HIS PRESENCE TO THE STORE MANAGER AND REPORTED
THAT HE COULD FIND NOTHING WRONG.  THE STORE MANAGER THEN TOLD HIM THAT
A FELLOW LOBBY EMPLOYEE OF COLLINS HAD JUST REPORTED THAT COLLINS HAD
PURCHASED A BOX OF CHICKEN THAT SOLD FOR $2.98, BUT HAD PLACED ONLY $1
IN THE CASH REGISTER.  COLLINS WAS SUMMONED TO AN INTERVIEW WITH
SPECIALIST HARDY AND THE STORE MANAGER, AND HARDY QUESTIONED HER.  THE
BOARD FOUND THAT SEVERAL TIMES DURING THE QUESTIONING SHE ASKED THE
STORE MANAGER TO CALL THE UNION SHOP STEWARD OR SOME OTHER UNION
REPRESENTATIVE TO THE INTERVIEW, AND THAT HER REQUESTS WERE DENIED. 
COLLINS ADMITTED THAT SHE HAD PURCHASED SOME CHICKEN, A LOAF OF BREAD,
AND SOME CAKE WHICH SHE SAID SHE PAID FOR AND DONATED TO HER CHURCH FOR
A CHURCH DINNER.  SHE EXPLAINED THAT SHE PURCHASED FOUR PIECES OF
CHICKEN FOR WHICH THE PRICE WAS $1, BUT THAT BECAUSE THE LOBBY
DEPARTMENT WAS OUT OF THE SMALL-SIZE BOXES IN WHICH SUCH PURCHASES WERE
USUALLY PACKAGED SHE PUT THE CHICKEN INTO THE LARGER BOX NORMALLY USED
FOR PACKAGING LARGER QUANTITIES.  SPECIALIST HARDY LEFT THE INTERVIEW
TO CHECK COLLINS' EXPLANATION WITH THE FELLOW EMPLOYEE WHO HAD REPORTED
COLLINS.  THIS EMPLOYEE CONFIRMED THAT THE LOBBY DEPARTMENT HAD RUN OUT
OF SMALL BOXES AND ALSO SAID THAT SHE DID NOT KNOW HOW MANY PIECES OF
CHICKEN COLLINS HAD PUT IN THE LARGER BOX.  SPECIALIST HARDY RETURNED
TO THE INTERVIEW, TOLD COLLINS THAT HER EXPLANATION HAD CHECKED OUT,
THAT HE WAS SORRY IF HE HAD INCONVENIENCED HER, AND THAT THE MATTER WAS
CLOSED. 

COLLINS THEREUPON BURST INTO TEARS AND BLURTED OUT THAT THE ONLY
THING SHE HAD EVER GOTTEN FROM THE STORE WITHOUT PAYING FOR IT WAS HER
FREE LUNCH.  THIS REVELATION SURPRISED THE STORE MANAGER AND HARDY
BECAUSE, ALTHOUGH FREE LUNCHES HAD BEEN PROVIDED AT STORE NO. 2 WHEN
COLLINS WORKED AT THE LUNCH COUNTER THERE, COMPANY POLICY WAS NOT TO
PROVIDE FREE LUNCHES AT STORES OPERATING LOBBY DEPARTMENTS.  IN
CONSEQUENCE, THE STORE MANAGER AND SPECIALIST HARDY CLOSELY
INTERROGATED COLLINS ABOUT VIOLATIONS OF THE POLICY IN THE LOBBY
DEPARTMENT AT STORE NO. 98.  COLLINS AGAIN ASKED THAT A SHOP STEWARD BE
CALLED TO THE INTERVIEW, BUT THE STORE MANAGER DENIED HER REQUEST. 
BASED ON HER ANSWERS TO HIS QUESTIONS, SPECIALIST HARDY PREPARED A
WRITTEN STATEMENT WHICH INCLUDED A COMPUTATION THAT COLLINS OWED THE
STORE APPROXIMATELY $160 FOR LUNCHES.  COLLINS REFUSED TO SIGN THE
STATEMENT.  THE BOARD FOUND THAT COLLINS, AS WELL AS MOST, IF NOT ALL,
EMPLOYEES IN THE LOBBY DEPARTMENT OF STORE NO. 98, INCLUDING THE
MANAGER OF THAT DEPARTMENT, TOOK LUNCH FROM THE LOBBY WITHOUT PAYING
FOR IT, APPARENTLY BECAUSE NO CONTRARY POLICY WAS EVER MADE KNOWN TO
THEM.  INDEED, WHEN COMPANY HEADQUARTERS ADVISED SPECIALIST HARDY BY
TELEPHONE DURING THE INTERVIEW THAT HEADQUARTERS ITSELF WAS UNCERTAIN
WHETHER THE POLICY AGAINST PROVIDING FREE LUNCHES AT LOBBY DEPARTMENTS
WAS IN EFFECT AT STORE NO. 98, HE TERMINATED HIS INTERROGATION OF
COLLINS.  THE STORE MANAGER ASKED COLLINS NOT TO DISCUSS THE MATTER
WITH ANYONE BECAUSE HE CONSIDERED IT A PRIVATE MATTER BETWEEN HER AND
THE COMPANY, OF NO CONCERN TO OTHER.  COLLINS, HOEVER, REPORTED THE
DETAILS OF THE INTERVIEW FULLY TO HER SHOP STEWARD AND OTHER UNION
REPRESENTATIVES, AND THIS UNFAIR LABOR PRACTICE PROCEEDING RESULTED. 
/4/

II 

THE BOARD'S CONSTRUCTION THAT 7 CREATES A STATUTORY RIGHT IN AN
EMPLOYEE TO REFUSE TO SUBMIT WITHOUT UNION REPRESENTATION TO AN
INTERVIEW WHICH HE REASONABLY FEARS MAY RESULT IN HIS DISCIPLINE WAS
ANNOUNCED IN ITS DECISION AND ORDER OF JANUARY 28, 1972, IN QUALITY
MFG. CO., 195 N.L.R.B. 197, CONSIDERED IN GARMENT WORKERS V. QUALITY
MFG. CO., POST, P. 276.  IN ITS OPINIONS IN THAT CASE AND IN MOBIL OIL
COPR., 196 N.L.R.B. 1052, DECIDED MAY 12, 1972, THREE MONTHS LATER, THE
BOARD SHAPED THE CONTOURS AND LIMITS OF THE STATUTORY RIGHT. 

FIRST, THE RIGHT INHERES IN 7'S GUARANTEE OF THE RIGHT OF EMPLOYEES
TO ACT IN CONCERT FOR MUTUAL AID AND PROTECTION.  IN MOBIL OIL, THE
BOARD STATED: 

     "AN EMPLOYEE'S RIGHT TO UNION REPRESENTATION UPON REQUEST IS

  BASED ON SECTION 7 OF THE ACT WHICH GUARANTEES THE RIGHT OF

  EMPLOYEES TO ACT IN CONCERT FOR 'MUTUAL AID AND PROTECTION.'  THE

  DENIAL OF THIS RIGHT HAS A REASONABLE TENDENCY TO INTERFERE WITH,

  RESTRAIN, AND COERCE EMPLOYEES IN VIOLATION OF SECTION 8(A)(1) OF

  THE ACT.  THUS, IT IS A SERIOUS VIOLATION OF THE EMPLOYEE'S

INDIVIDUAL RIGHT TO ENGAGE IN CONCERTED ACTIVITY BY SEEKING THE

  ASSISTANCE OF HIS STATUTORY REPRESENTATIVE IF THE EMPLOYER DENIES

  THE EMPLOYEE'S REQUEST AND COMPELS THE EMPLOYEE TO APPEAR

  UNASSISTED AT AN INTERVIEW WHICH MAY PUT HIS JOB SECURITY IN

  JEOPARDY.  SUCH A DILUTION OF THE EMPLOYEE'S RIGHT TO T

  COLLECTIVELY TO PROTECT HIS JOB INTERESTS IS, IN OUR VIEW,

  UNWARRANTED INTERFERENCE WITH HIS RIGHT TO INSIST ON CONCERTED

  PROTECTION, RATHER THAN THE INDIVIDUAL SELF-PROTECTION, AGAINST

  POSSIBLE ADVERSE EMPLOYER ACTION."  IBID. 

SECOND, THE RIGHT ARISES ONLY IN SITUATIONS WHERE THE EMPLOYEE
REQUESTS REPRESENTATION.  IN OTHER WORDS, THE EMPLOYEE MAY FORGO HIS
GUARANTEED RIGHT AND, IF HE PREFERS, PARTICIPATE IN AN INTERVIEW
UNACCOMPANIED BY HIS UNION REPRESENTATIVE. 

THIRD, THE EMPLOYEE'S RIGHT TO REQUEST REPRESENTATION AS A CONDITION
OF PARTICIPATION IN AN INTERVIEW IS LIMITED TO SITUATIONS WHERE THE
EMPLOYEE REASONABLY RELIEVES THE INVESTIGATION WILL RESULT IN
DISCIPLINARY ACTION.  /5/ THUS THE BOARD STATED IN QUALITY: 

     "WE WOULD NOT APPLY THE RULE TO SUCH RUN-OF-THE-MILL SHOP
FLOOR

  CONVERSATIONS AS, FOR EXAMPLE, THE GIVING OF INSTRUCTIONS OR

  TRAINING OR NEEDED CORRECTIONS OF WORK TECHNIQUES.  IN SUCH CASES

  THERE CANNOT NORMALLY BE ANY REASONABLE BASIS FOR AN EMPLOYEE TO

  FEAR THAT ANY ADVERSE IMPACT MAY RESULT FROM THE INTERVIEW, AND

  THUS WE WOULD THEN SEE NO REASONABLE BASIS FOR HIM TO SEEK THE

  ASSISTANCE OF HIS REPRESENTATIVE."  195 N.L.R.B.,AT 199. 

FOURTH, EXERCISE OF THE RIGHT MAY NOT INTERFERE WITH LEGITIMATE
EMPLOYER PREROGATIVES.  THE EMPLOYER HAS NO OBLIGATION, AND DESPITE
REFUSAL, THE EMPLOYER IS FREE TO CARRY ON HIS INQUIRY WITHOUT
INTERVIEWING THE EMPLOYEE, AND THUS LEAVE TO THE EMPLOYEE THE CHOICE
BETWEEN HAVING AN INTERVIEW UNACCOMPANIED BY HIS REPRESENTATIVE, OR
HAVING NO INTERVIEW AND FORGOING ANY BENEFITS THAT MIGHT BE DERIVED
FROM ONE.  AS STATED IN MOBIL OIL: 

"THE EMPLOYER MAY, IF IT WISHES, ADVISE THE EMPLOYEE THAT IT WILL
NOT PROCEED WITH THE INTERVIEW UNLESS THE EMPLOYEE IS WILLING TO ENTER
THE INTERVIEW UNACCOMPANIED BY HIS REPRESENTATIVE.  THE EMPLOYEE MAY
THEN REFRAIN FROM PARTICIPATING IN THE INTERVIEW, THEREBY PROTECTING
HIS RIGHT TO REPRESENTATION, BUT AT THE SAME TIME RELINQUISHING ANY
BENEFIT WHICH MIGHT BE DERIVED FROM THE INTERVIEW.  THE EMPLOYER WOULD
THEN BE FREE TO ACT ON THE BASIS OF INFORMATION OBTAINED FROM OTHER
SOURCES."  196 N.L.R.B.,AT 1052.  THE BOARD EXPLAINED IN QUALITY: 

"THIS SEEMS TO US TO BE THE ONLY COURSE CONSISTENT WITH ALL OF THE
PROVISIONS OF OUR ACT.  IT PERMITS THE EMPLOYER TO REJECT A COLLECTIVE
COURSE IN SITUATIONS SUCH AS INVESTIGATIVE INTERVIEWS WHERE A
COLLECTIVE COURSE IS NOT REQUIRED BUT PROTECTS THE EMPLOYEE'S RIGHT TO
PROTECTION BY HIS CHOSEN AGENTS.  PARTICIPATION IN THE INTERVIEW IS
THEN VOLUNTARY, AND, IF THE EMPLOYEE HAS REASONABLE GROUND TO FEAR THAT
THE INTERVIEW WILL ADVERSELY AFFECT HIS CONTINUED EMPLOYMENT, OR EVEN
HIS WORKING CONDITIONS, HE MAY CHOOSE TO FOREGO IT UNLESS HE IS
AFFORDED THE SAFEGUARD OF HIS REPRESENTATIVE'S PRESENCE.  HE WOULD THEN
ALSO FOREGO WHATEVER BENEFIT MIGHT COME FROM THE INTERVIEW.  AND, IN
THAT EVENT, THE EMPLOYER WOULD, OF COURSE, BE FREE TO ACT ON THE BASIS
OF WHATEVER INFORMATION HE HAD AND WITHOUT SUCH ADDITIONAL FACTS AS
MIGHT HAVE BEEN GLEANED THROUGH THE INTERVIEW."  195 N.L.R.B.,AT 198 -
199. 

FIFTH, THE EMPLOYER HAS NO DUTY TO BARGAIN WITH ANY UNION
REPRESENTATIVE WHO MAY BE PERMITTED TO ATTEND THE INVESTIGATORY
INTERVIEW.  THE BOARD SAID IN MOBIL, "WE ARE NOT GIVING THE UNION ANY
PARTICULAR RIGHTS WITH RESPECT TO PREDISCIPLINARY DISCUSSIONS WHICH IT
OTHERWISE WAS NOT ABLE TO SEC URE DURING COLLECTIVE-BARGAINING
NEGOTIATIONS."  196 N.L.R.B.,AT 1052 N. 3.  THE BOARD THUS ADHERED TO
ITS DECISIONS DISTINGUISHING BETWEEN DISCIPLINARY AND INVESTIGATORY
INTERVIEWS, IMPOSING A MANDATORY AFFIRMATIVE OBLIGATION TO MEET WITH
THE UNION REPRESENTATIVE ONLY IN THE CASE OF THE DISCIPLINARY
INTERVIEW.  TEXACO, INC., HOUSTON PRODUCING DIVISION, 168 N.L.R.B. 361
(1967); CHEVRON OIL CO., 168 N.L.R.B. 574 (1967); JACOBE-PEARSON FORD,
INC., 172 N.L.R.B. 594 (1968).  THE EMPLOYER HAS NO DUTY TO BARGAIN
WITH THE UNION REPRESENTATIVE AT AN INVESTIGATORY INTERVIEW.  "THE
REPRESENTATIVE IS PRESENT TO ASSIST THE EMPLOYEE, AND MAY ATTEMPT TO
CLARIFY THE FACTS OR SUGGEST OTHER EMPLOYEES WHO MAY HAVE KNOWLEDGE OF
THEM.  THE EMPLOYER, HOWEVER, IS FREE TO INSIST THAT HE IS ONLY
INTERESTED, AT THAT TIME, IN HEARING THE EMPLOYEE'S OWN ACCOUNT OF THE
MATTER UNDER INVESTIGATION."  BRIEF FOR PETITIONER 22. 

        III 

THE BOARD'S HOLDING IS A PERMISSIBLE CONSTRUCTION OF "CONCERTED
ACTIVITIES FOR . . . MUTUAL AID OR PROTECTION" BY THE AGENCY CHARGED BY
CONGRESS WITH ENFORCEMENT OF THE ACT, AND SHOULD HAVE BEEN SUSTAINED. 

THE ACTION OF AN EMPLOYEE IN SEEKING TO HAVE THE ASSISTANCE OF HIS
UNION REPRESENTATIVE AT A CONFRONTATION WITH HIS EMPLOYER CLEARLY FALLS
WITHIN THE LITERAL WORDING OF 7 THAT "(EMPLOYEES SHALL HAVE THE RIGHT .
. . TO ENGAGE IN . . . CONCERTED ACTIVITIES FOR THE PURPOSE OF . . .
MUTUAL AID OR PROTECTION."  MOBIL OIL CORP. V. NLRB, 482 F.2D 842, 847
(CA7 1973).  THIS IS TRUE EVEN THOUGH THE EMPLOYEE ALONE MAY HAVE AN
IMMEDIATE STAKE IN THE OUTCOME; HE SEEKS "AID OR PROTECTION"  AGAINST A
PERCEIVED THREAT TO HIS EMPLOYMENT SECURITY.  THE UNION REPRESENTATIVE
WHOSE PARTICIPATION HE SEEKS IS, HOWEVER, SAFEGUARDING NOT ONLY THE
PARTICULAR EMPLOYEE'S INTEREST, BUT ALSO THE INTERESTS OF THE ENTIRE
BARGAINING UNIT BY EXERCISING VIGILANCE TO MAKE CERTAIN THAT THE
EMPLOYER DOES NOT INITIATE OR CONTINUE A PRACTICE OF IMPOSING
PUNISHMENT UNJUSTLY.  /6/  THE REPRESENTATIVE' PRESENCE IS AN ASSURANCE
TO OTHER EMPLOYEES IN THE BARGAINING UNIT THAT THEY, TOO, CAN OBTAIN
HIS AID AND PROTECTION IF CALLED UPON TO ATTEND A LIKE INTERVIEW. 
CONCERTED ACTIVITY FOR MUTUAL AID OR PROTECTION IS THEREFORE AS PRESENT
HERE AS IT WAS HELD TO BE IN NLRB V. PETER CAILLER KOHLER SWISS
CHOCOLATES CO., 130 F.2D 503, 505 - 506 (CA2 1942), CITED WITH APPROVAL
BY THIS COURT IN HOUSTON CONTRACTORS ASSN. V. NLRB, 386 U.S. 664, 668 -
669 (1967): 

     "'WHEN ALL THE OTHER WORKMEN IN A SHOP MAKE COMMON CAUSE WITH
A

  FELLOW WORKMAN OVER HIS SEPARATE GRIEVANCE, AND GO OUT ON STRIKE

  IN HIS SUPPORT, THEY ENGAGE IN A "CONCERTED ACTIVITY" FOR "MUTUAL

  AID OR PROTECTION," ALTHOUGH THE AGGRIEVED WORKMAN IS THE ONLY

ONE OF THEM WHO HAS ANY IMMEDIATE STAKE IN THE OUTCOME.  THE REST

  KNOW THAT BY THEIR ACTION EACH OF THEM ASSURES HIMSELF, IN CASE

  HIS TURN EVER COMES, OF THE SUPPORT OF THE ONE WHOM THEY ARE ALL

  THEN HELPING; AND THE SOLIDARITY SO ESTABLISHED IS "MUTUAL AID"

  IN THE MOST LITERAL SENSE, AS NOBODY DOUBTS.'" 

THE BOARD'S CONSTRUCTION PLAINLY EFFECTUATES THE MOST FUNDAMENTAL
PURPOSES OF THE ACT.  IN 1, 29 U.S.C. 151, THE ACT DECLARES THAT IT IS
A GOAL OF NATIONAL LABOR POLICY TO PROTECT "THE EXERCISE BY WORKERS OF
FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND DESIGNATION OF
REPRESENTATIVES OF THEIR OWN CHOOSING, FOR THE PURPOSE OF . . . MUTUAL
AID OR PROTECTION."  TO THAT END THE ACT IS DESIGNED TO ELIMINATE THE
"INEQUALITY OF BARGAINING POWER BETWEEN EMPLOYEES . . . AND
EMPLOYERS."  IBID.  REQUIRING A LONE EMPLOYEE TO ATTEND AN
INVESTIGATORY INTERVIEW WHICH HE REASONABLY BELIEVES MAY RESULT IN THE
IMPOSITION OF DISCIPLINE PERPETUATES THE INEQUALITY THE ACT WAS
DESIGNED TO ELIMINATE, AND BARS RECOURSE TO THE SAFEGUARDS THE ACT
PROVIDED "TO REDRESS THE PERCEIVED IMBALANCE OF ECONOMIC POWER BETWEEN
LABOR AND MANAGEMENT."  AMERICAN SHIP BUILDING CO. V. NLRB, 380 U.S.
300, 316 (1965).  VIEWED IN THIS LIGHT, THE BOARD'S RECOGNITION THAT 7
GUARANTEES AN EMPLOYEE'S RIGHT TO THE PRESENCE OF A UNION
REPRESENTATIVE AT AN INVESTIGATORY INTERVIEW IN WHICH THE RISK OF
DISCIPLINE REASONABLY INHERES IS WITHIN THE PROTECTIVE AMBIT OF THE
TO BE ATTAINED.'"  NLRB V. HEARST PUBLICATIONS, INC., 322 U.S. 111, 124
(1944). 

THE BOARD'S CONSTRUCTION ALSO GIVES RECOGNITION TO THE RIGHT WHEN IT
IS MOST USEFUL TO BOTH EMPLOYEE AND EMPLOYER.  /7/ A SINGLE EMPLOYEE
CONFRONTED BY AN EMPLOYER INVESTIGATING WHETHER CERTAIN CONDUCT
DESERVES DISCIPLINE MAY BE TOO FEARFUL OR INARTICULATE TO RELATE
ACCURATELY THE INCIDENT BEING INVESTIGATED, OR TOO IGNORANT TO RAISE
EXTENUATING FACTORS.  A KNOWLEDGEABLE UNION REPRESENTATIVE COULD ASSIST
THE EMPLOYER BY ELICITING FAVORABLE FACTS, AND SAVE THE EMPLOYER
PRODUCTION TIME BY GETTING TO THE BOTTOM OF THE INCIDENT OCCASIONING
THE INTERVIEW.  CERTAINLY HIS PRESENCE NEED NOT TRANSFORM THE INTERVIEW
INTO AN ADVERSARY CONTEST.  RESPONDENT SUGGESTS NONETHELESS THAT UNION
REPRESENTATION AT THIS STAGE IS UNNECESSARY BECAUSE A DECISION AS TO
EMPLOYEE CULPABILITY OR DISCIPLINARY ACTION CAN BE CORRECTED AFTER THE
DECISION TO IMPOSE DISCIPLINE HAS BECOME FINAL.  IN OTHER WORDS,
RESPONDENT WOULD DEFER REPRESENTATION UNTIL THE FILING OF A FORMAL
GRIEVANCE CHALLENGING THE EMPLOYER'S DETERMINATION OF GUILT AFTER THE
EMPLOYEE HAS BEEN DISCHARGED OR OTHERWISE DISCIPLINED.  /8/ AT THAT
POINT, HOWEVER, IT BECOMES INCREASINGLY DIFFICULT FOR THE EMPLOYEE TO
VINDICATE HIMSELF, AND THE VALUE OF REPRESENTATION IS CORRESPONDINGLY
DIMINISHED.  THE EMPLOYER MAY THEN BE MORE CONCERNED WITH JUSTIFYING
HIS ACTIONS THAN RE-EXAMINING THEM. 

        IV 

THE COURT OF APPEALS REJECTED THE BOARD'S CONSTRUCTION AS FORECLOSED
BY THAT COURT'S DECISION FOUR YEARS EARLIER IN TEXACO, INC., HOUSTON
PRODUCING DIVISION V. NLRB, 408 F.2D 142 (1969), AND BY "A LONG LINE OF
BOARD DECISIONS, EACH OF WHICH INDICATES--EITHER DIRECTLY OR INDIRECTLY
-THAT NO UNION REPRESENTATIVE NEED BE PRESENT" AT AN INVESTIGATORY
INTERVIEW.  485 F.2D,AT 1137. 

THE BOARD DISTINGUISHES TEXACO AS PRESENTING NOT THE QUESTION
WHETHER THE REFUSAL TO ALLOW THE EMPLOYEE TO HAVE HIS UNION
REPRESENTATIVE PRESENT CONSTITUTED A VIOLATION OF 8(A)(1) BUT RATHER
THE QUESTION WHETHER 8(A)(5) PRECLUDED THE EMPLOYER FROM REFUSING TO
DEAL WITH THE UNION.  WE NEED NOT DETERMINE WHETHER TEXACO IS
DISTINGUISHABLE.  INSOFAR AS THE COURT OF APPEALS THERE HELD THAT AN
EMPLOYER DOES NOT VIOLATE 8(A)(1) IF HE DENIES AN EMPLOYEE'S REQUEST
FOR UNION REPRESENTATION AT AN INVESTIGATIVE INTERVIEW, AND REQUIRES
HIM TO ATTEND THE INTERVIEW ALONE, OUR DECISION TODAY REVERSING THE
COURT OF APPEALS' JUDGMENT BASED UPON TEXACO SUPERSEDES THAT HOLDING. 
$ IN RESPECT OF ITS OWN PRECEDENTS, THE BOARD ASSERTS THAT EVEN THOUGH
SOME "MAY BE READ AS REACHING A CONTRARY CONCLUSION," THEY SHOULD NOT
BE TREATED AS IMPAIRING THE VALIDITY OF THE BOARD'S CONSTRUCTION,
BECAUSE "(THESE DECISIONS DO NOT REFLECT A CONSIDERED ANALYSIS OF THE
ISSUE."  BRIEF FOR PETITIONER 25.  /9/ IN THAT CIRCUMSTANCE, AND IN THE
LIGHT OF SIGNIFICANT DEVELOPMENTS IN INDUSTRIAL LIFE BELIEVED BY THE
BOARD TO HAVE WARRANTED A REAPPRAISAL OF THE QUESTION, /10/ THE BOARD
ARUGES THAT THE CASE IS ONE WHERE "(THE NATURE OF THE PROBLEM, AS
REVEALED BY UNFOLDING VARIANT SITUATIONS, INEVITABLY INVOLVES AN
EVOLUTIONARY PROCESS FOR ITS RATIONAL RESPONSE, NOT A QUICK, DEFINITIVE
FORMULA AS A COMPREHENSIVE ANSWER.  AND SO, IT IS NOT SURPRISING THAT
THE BOARD HAS MORE OR LESS FELT ITS WAY . . . AND HAS MODIFIED AND
REFORMED ITS STANDARDS ON THE BASIS OF ACCUMULATING EXPERIENCE. 
EXPERIENCE."  ELECTRICAL WORKERS V. NLRB, 366 U.S. 667, 674 (1961). 

WE AGREE THAT ITS EARLIER PRECEDENTS DO NOT IMPAIR THE VALIDITY OF
THE BOARD'S CONSTRUCTION.  THAT CONSTRUCTION IN NO WISE EXCEEDS THE
REACH OF 7, BUT FALLS WELL WITHIN THE SCOPE OF THE RIGHTS CREATED BY
THAT SECTION.  THE USE BY AN ADMINISTRATIVE AGENCY OF THE EVOLUTIONAL
APPROACH IS PARTICULARLY FITTING.  TO HOLD THAT THE BOARD'S EARLIER
DECISIONS FROZE THE DEVELOPMENT OF THIS IMPORTANT ASPECT OF THE
NATIONAL LABOR LAW WOULD MISCONCEIVE THE NATURE OF ADMINISTRATIVE
DECISIONMAKING."  "'CUMULATIVE EXPERIENCE' BEGETS UNDERSTANDING AND
INSIGHT BY WHICH JUDGMENTS . . . 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."  NLRB V. SEVEN-UP CO., 344 U.S. 344, 349 (1953). 

THE RESPONSIBILITY TO ADAPT THE ACT TO CHANGING PATTERNS OF
INDUSTRIAL LIFE IS ENTRUSTED TO THE BOARD.  THE COURT OF APPEALS
IMPERMISSIBLY ENCROACHED UPON THE BOARD'S FUNCTION IN DETERMINING FOR
ITSELF THAT AN EMPLOYEE HAS NO "NEED" FOR UNION ASSISTANCE AT AN
INVESTIGATORY INTERVIEW.  "WHILE A BASIC PURPOSE OF SECTION 7 IS TO
ALLOW EMPLOYEES TO ENGAGE IN CONCERTED ACTIVITIES FOR THEIR MUTUAL AID
AND PROTECTION, SUCH A NEED DOES NOT ARISE AT AN INVESTIGATORY
INTERVIEW."  485 F.2D,AT 1138.  IT IS THE PROVINCE OF THE BOARD, NOT
THE COURTS, TO DETERMINE WHETHER OR NOT THE "NEED" EXISTS IN LIGHT OF
CHANGING INDUSTRIAL PRACTICES AND THE BOARD'S CUMULATIVE EXPERIENCE IN
DEALING WITH LABOR-MANAGEMENT RELATIONS.  FOR THE BOARD HAS THE
"SPECIAL FUNCTION OF APPLYING THE GENERAL PROVISIONS OF THE ACT TO THE
COMPLEXITIES OF INDUSTRIAL LIFE," NLRB V. ERIE RESISTOR CORP., 373 U.S.
221, 236 (1963); SEE REPUBLIC AVAIATION CORP. V. NLRB, 324 U.S. 793,
798 (1945); PHELPS DODGE CORP. V. NLRB, 313 U.S. 177, 196 - 197 (1941),
AND ITS SPECIAL COMPETENCE IN THIS FIELD IS THE JUSTIFICATION FOR THE
DEFENCE ACCORDED ITS DETERMINATION.  AMERCIAN SHIP BUILDING CO. V.
NLRB, 380 U.S.,AT 316.  REVIEWING COURTS ARE OF COURSE NOT "TO STAND
ASIDE AND RUBBER STAMP" BOARD DETERMINATIONS THAT RUM CONTRARY TO THE
LANGUAGE OR TENOR OF THE ACT, NLRB V. BROWN, 380 U.S. 278, 291 (1965). 
BUT THE BOARD'S CONSTRUCTION HERE, WHILE IT MAY NOT BE REQUIRED BY THE
ACT, IS AT LEAST PERMISSIBLE UNDER IT, AND INSOFAR AS THE BOARD'S
APPLICATION OF THAT MEANING ENGAGES IN THE "DIFFICULT AND DELICATE
RESPONSIBILITY" OF RECONCILING CONFLICTING INTERESTS OF LABOR AND
MANAGEMENT, THE BALANCE STRUCK BY THE BOARD IS "SUBJECT TO LIMITED
JUDICIAL REVIEW."  NLRB V. TRUCK DRIVERS, 353 U.S. 87, 96 (1957).  SEE
ALSO NLRB V. BABCOCK & WILCOX CO., 351 U.S. 105 (1956); NLRB V. BROWN,
SUPRA; REPUBLIC AVIATION CORP. V. NLRB, SUPRA.  IN SUM, THE BOARD HAS
REACHED A FAIR AND REASONED BALANCE UPON A QUESTION WITHIN ITS SPECIAL
COMPETENCE, ITS NEWLY ARRIVED AT CONSTRUCTION OF 7 DOES NOT EXCEED THE
REACH OF THAT SECTION, AND THE BOARD HAS ADEQUATELY EXPLICATED THE
BASIS OF ITS INTERPRETATION. 

THE STATUTORY RIGHT CONFIRMED TODAY IS IN FULL HARMONY WITH ACTUAL
INDUSTRIAL PRACTICE.  MANY IMPORTANT COLLECTIVE-BARGAINING AGREEMENTS
HAVE PROVISIONS THAT ACCORD EMPLOYEES RIGHTS OF UNION REPRESENTATION AT
INVESTIGATORY INTERVIEWS.  /11/ EVEN WHERE SUCH A RIGHT IS NOT
EXPLICITLY PROVIDED IN THE AGREEMENT A "WELL-ESTABLISHED CURRENT OF
ARBITRAL AUTHORITY" SUSTAINS THE RIGHT OF UNION REPRESENTATION AT
INVESTIGATORY INTERVIEWS WHICH THE EMPLOYEE REASONABLY BELIEVES MAY
RESULT IN DISCIPLINARY ACTION AGAINST HIM.  CHEVRON CHEMICAL CO., 60
LAB.ARB.  1066, 1071 (1973).  /12/ 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED WITH DIRECTION TO
ENTER A JUDGMENT ENFORCING THE BOARD'S ORDER. 

                  IT IS SO ORDERED. 

/1/ SECTION 8(A)(1), 29 U.S.C. 158(A)(1), PROVIDES THAT IT IS AN
UNFAIR LABOR PRACTICE FOR AN EMPLOYER "TO INTERFERE WITH, RESTRAIN, OR
COERCE EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION
157 OF THIS TITLE." 

/2/ SECTION 7, 29 U.S.C. 157, PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 158(A)(3) OF THIS
TITLE." 

/3/ ACCORD:  NLRB V. QUALITY MFG. CO., 481 F.2D 1018 (CA4 1973),
REV'D, GARMENT WORKERS V. QUALITY MFG. CO., POST, P. 276; MOBIL OIL
CORP. V. NLRB, 482 F.2D 842 (CA7 1973).  THE ISSUE IS A RECURRING ONE. 
IN ADDITION TO THIS CASE AND GARMENT WORKERS V. QUALITY MFG. CO., POST,
P. 276, SEE WESTERN ELECTRIC CO., 205 N.L.R.B. 46 (1973); NEW YORK
TELEPHONE CO., 203 N.L.R.B. 180 (1973); NATIONAL CAN CORP., 200
N.L.R.B. 1116 (1972); WESTERN ELECTRIC CO., 198 N.L.R.B. 82 (1972);
MOBIL OIL CORP., 196 N.L.R.B. 1052 (1972), ENFORCEMENT DENIED, 482 F.2D
842 (CA7 1973); LAFAYETTE RADIO ELECTRONICS, 194 N.L.R.B. 491 (1971);
ILLINOIS BELL TELEPHONE CO., 192 N.L.R.B. 834 (1971); UNITED AIRCRAFT
CORP., 179 N.L.R.B. 935 (1969), AFF'D ON ANOTHER GROUND, 440 F.2D 85
(CA2 1971); TEXACO, INC., LOS ANGELES TERMINAL, 179 N.L.R.B. 976
(1969); WALD MFG. CO., 176 N.L.R.B. 839 (1969), AFF'D ON OTHER GROUNDS,
426 F.2D 1328 (CA6 1970); DAYTON TYPOGRAPHIC SERVICE, INC., 176
N.L.R.B. 357 (1969); JACOBE-PEARSON FORD, INC., 172 N.L.R.B. 594
(1968); CHEVRON OIL CO., 168 N.L.R.B. 574 (1967); TEXACO, INC., HOUSTON
PRODUCING DIVISION, 168 N.L.R.B. 361 (1967), ENFORCEMENT DENIED, 408
F.2D 142 (CA5 1969); ELECTRIC MOTORS & SPECIALTIES, INC., 149 N.L.R.B.
1432 (1964); DOBBS HOUSES, INC., 145 N.L.R.B. 1565 (1964); ROSS GEAR &
TOOL CO., 63 N.L.R.B. 1012 (1945), ENFORCEMENT DENIED, 158 F.2D 607
(CA7 1947).  SEE GENERALLY BRODIE, UNION REPRESENTATION AND THE
DISCIPLINARY INTERVIEW, 15 B.C.IND.  & COM.L.REV.  1 (1973); COMMENT,
UNION PRESENCE IN DISCIPLINARY MEETINGS, 41 U.CHI.L.REV.  329 (1974). 

/4/ THE CHARGES ALSO ALLEGED THAT RESPONDENT HAD VIOLATED 8(A)(5) BY
UNILATERALLY CHANGING A CONDITION OF EMPLOYMENT WHEN, THE DAY AFTER THE
INTERVIEW, RESPONDENT ORDERED DISCONTINUANCE OF THE FREE LUNCH
PRACTICE.  BECAUSE RESPONDENT'S ACTION WAS AN ARBITRABLE GRIEVANCE
UNDER THE COLLECTIVE-BARGAINING AGREEMENT, THE BOARD, PURSUANT TO THE
DEFERRAL-TO-ARBITRATION POLICY ADOPTED IN COLLYER INSULATED WIRE, 192
N.L.R.B. 837 (1971), "DISMISSED" THE 8(A)(5) ALLEGATION.  NO ISSUE
INVOLVING THAT ACTION IS BEFORE US. 

/5/ THE BOARD STATED IN QUALITY:  "'REASONABLE GROUND' WILL OF
COURSE BE MEASURED, AS HERE, BY OBJECTIVE STANDARDS UNDER ALL THE
CIRCUMSTANCES OF THE CASE."  195 N.L.R.B. 197, 198 N. 3.  IN NLRB V.
GISSEL PACKING CO., 395 U.S. 575, 608 (1969), THE COURT ANNOUNCED THAT
IT WOULD "REJECT ANY RULE THAT REQUIRES A PROBE OF AN EMPLOYEE'S
SUBJECTIVE MOTIVATIONS AS INVOLVING AN ENDLESS AND UNRELIABLE INQUIRY,"
AND WE REAFFIRM THAT VIEW TODAY AS APPLICABLE ALSO IN THE CONTEXT OF
THIS CASE.  REASONABLENESS, AS A STANDARD, IS PRESCRIBED IN SEVERAL
PLACES IN THE ACT ITSELF.  E.G., AN EMPLOYER IS NOT RELIEVED OF
RESPONSIBILITY FOR DISCRIMINATION AGAINST AN EMPLOYEE "IF HE HAS
REASONABLE GROUNDS FOR BELIEVING" THAT CERTAIN FACTS EXIST, 8(A)(3)(A),
(B), 29 U.S.C. 158 (A)(3)(A), (B); ALSO, PRELIMINARY INJUNCTIVE RELIEF
AGAINST CERTAIN CONDUCT MUGHT BE SOUGHT IF "THE OFFICER OR REGIONAL
ATTORNEY TO WHOM THE MATTER MAY BE REFERRED HAS REASONABLE CAUSE TO
BELIEVE" SUCH CHARGE IS TRUE, 10(L), 29 U.S.C. 160(L).  SEE ALSO
CONGOLEUM INDUSTRIES, INC., 197 N.L.R.B. 534 (1972); CUMBERLAND SHOE
CORP., 144 N.L.R.B. 1268 (1963), ENFORCED, 351 F.2D 917 (CA6 1965). 

THE KEY OBJECTIVE FACT IN THIS CASE IS THAT THE ONLY EXCEPTION TO
THE REQUIREMENT IN THE COLLECTIVE-BARGAINING AGREEMENT THAT THE
EMPLOYER GIVE A WARNING NOTICE PRIOR TO DISCHARGE IS "IF THE CAUSE OF
SUCH DISCHARGE IS DISHONESTY."  ACCORDINGLY, HAD RESPONDENT BEEN
SATISFIED, BASED ON ITS INVESTIGATORY INTERVIEW, THAT COLLINS WAS
GUILTY OF DISHONESTY, COLLINS COULD HAVE BEEN DISCHARGED WITHOUT
FURTHER NOTICE.  THAT SHE MIGHT REASONABLY BELIEVE THAT THE INTERVIEW
MIGHT RESULT IN DISCIPLINARY ACTION IS THUS CLEAR. 

/6/ "THE QUANTUM OF PROOF THAT THE EMPLOYER CONSIDERS SUFFICIENT TO
SUPPORT DISCIPLINARY ACTION IS OF CONCERN TO THE ENTIRE BARGAINING
UNIT.  A SLOW ACCRETION OF CUSTOM AND PRACTICE MAY COME TO CONTROL THE
HANDLING OF DISCIPLINARY DISPUTES.  IF, FOR EXAMPLE, THE EMPLOYER
ADOPTS A PRACTICE OF CONSIDERING (A) FOREMAN'S UNSUBSTANTIATED
STATEMENTS SUFFICIENT TO SUPPORT DISCIPLINARY ACTION, EMPLOYEE
PROTECTION AGAINST UNWARRANTED PUNISHMENT IS AFFECTED.  THE PRESENCE OF
A UNION STEWARD ALLOWS PROTECTION OF THIS INTEREST BY THE BARGAINING
REPRESENTATIVE."  COMMENT, UNION PRESENCE IN DISCIPLINARY MEETINGS, 41
U.CHI.L.REV.  329, 338 (1974). 

/7/ SEE, E.G., INDEPENDENT LOCK CO., 30 LAB.ARB.  744, 746 (1958):
(PARTICIPATION BY THE UNION REPRESENTATIVE) MIGHT REASONABLY BE
DESIGNED TO CLARIFY THE ISSUES A THIS FIRST STAGE OF THE EXISTENCE OF A
QUESTION, TO GIVE ASSISTANCE TO EMPLOYEES WHO MAY LACK THE ABILITY TO
EXPRESS THEMSELVES IN THEIR CASES, AND WHO, WHEN THEIR LIVELIHOOD IS AT
STAKE, MIGHT IN FACT NEED THE MORE EXPERIENCED KIND OF COUNSEL WHICH
THEIR UNION STEWARD GHT REPRESENT.  THE FOREMAN, HIMSELF, MAY BENEFIT
FROM THE PRESENCE OF THE STEWARD BY SEEING THE ISSUE, THE PROBLEM, THE
IMPLICATIONS OF THE FACTS, AND THE COLLECTIVE BARGAINING CLAUSE IN
QUESTION MORE CLEARLY.  INDEED, GOOD FAITH DISCUSSION AT THIS LEVEL MAY
SOLVE MANY PROBLEMS, AND PREVENT NEEDLESS HARD FEELINGS FROM ARISING .
. .. (IT) CAN BE ADVANTAGEOUS TO BOTH PARTIES IF THEY BOTH ACT IN GOOD
FAITH AND SEEK TO DISCUSS THE QUESTION AT THIS STAGE WITH AS MUCH
INTELLIGENCE AS THEY ARE CAPABLE OF BRINING TO BEAR ON THE PROBLEM." 
SEE ALSO CATERPILLAR TRACTOR CO., 44 LAB.ARB.  647, 651 (1965): 

"THE PROCEDURE . . . CONTEMPLATES THAT THE STEWARD WILL EXERCISE HIS
RESPONSIBILITY AND AUTHORITY TO DISCOURAGE GRIEVANCES WHERE THE ACTION
ON THE PART OF MANAGEMENT APPEARS TO BE JUSTIFIED.  SIMILARLY, THERE
EXISTS THE RESPONSIBILITY UPON MANAGEMENT TO WITHHOLD DISCIPLINARY
ACTION, OR OTHER DECISIONS AFFECTING THE EMPLOYEES, WHERE IT CAN BE
DEMONSTRATED AT THE OUTSET THAT SUCH ACTION IS UNWARRANTED.  THE
PRESENCE OF THE UNION STEWARD IS REGARDED AS A FACTOR CONDUCIVE TO THE
AVOIDANCE OF FORMAL GRIEVANCES THROUGH THE MEDIUM OF DISCUSSION AND
PERSUASION CONDUCTED AT THE THRESHOLD OF AN IMPENDING GRIEVANCE.  IT IS
ENTIRELY LOGICAL THAT THE STEWARD WILL EMPLOY HIS OFFICE IN APPROPRIATE
CASES SO AS TO LIMIT FORMAL GRIEVANCES TO THOSE WHICH INVOLVE
DIFFERENCES OF SUBSTANTIAL MERIT.  WHETHER THIS OBJECTIVE IS
ACCOMPLISHED WILL DEPEND ON THE GOOD FAITH OF THE PARTIES, AND WHETHER
THEY ARE AMENABLE TO REASON AND PERSUASION." 

/8/ 1 CCH LAB.L.REP., UNION CONTRACTS, ARBITRATION PARA. 59,520, PP.
84,988 - 84,989. 

/9/ THE PRECEDENTS CITED BY THE COURT OF APPEALS ARE:  ILLINOIS BELL
TELEPHONE CO., 192 N.L.R.B. 834 (1971); TEXACO, INC., LOS ANGELES
TERMINAL, 179 N.L.R.B. 976 (1969); WALD MFG. CO., 176 N.L.R.B. 839
(1969), AFF'D, 426 F.2D 1328 (CA6 1970); DAYTON TYPOGRAPHIC SERVICE,
INC., 176 N.L.R.B. 357 (1969); JOCOBE-PEARSON FORD, INC., 172 N.L.R.B.
594 (1968); CHEVRON OIL CO., 168 N.L.R.B. 574 (1967); DOBBS HOUSES,
INC., 145 N.L.R.B. 1565 (1964).  SEE ALSO NLRB V. ROSS GEAR & TOOL CO.,
158 F.2D 607 (CA7 1947). 

/10/ "THERE HAS BEEN A RECENT GROWTH IN THE USE OF SOPHISTICATED
TECHNIQUES--SUCH AS CLOSED CIRCUIT TELEVISION, UNDERCOVER SECURITY
AGENTS, AND LIE DETECTORS--TO MONITOR AND INVESTIGATE THE EMPLOYEES'
CONDUCT AT THEIR PLACE OF WORK.  SEE, E.G., WARWICK ELECTRONICS, INC.,
46 L.A. 95, 97 - 98 (1966); BOWMAN TRANSPORTATION, INC., 56 L.A. 283,
286 - 292 (1972); FMC CORP., 46 L.A. 335, 336 - 338 (1966).  THESE
TECHNIQUES INCREASE NOT ONLY THE EMPLOYEES' FEELINGS OF APPREHENSION,
BUT ALSO THEIR NEED FOR EXPERIENCED ASSISTANCE IN DEALING WITH THEM. 
THUS, OFTEN, AS HERE AND IN MOBIL, SUPRA, AN INVESTIGATIVE INTERVIEW IS
CONDUCTED BY SECURITY SPECIALISTS; THE EMPLOYEE DOES NOT CONFRON A
SUPERVISOR WHO IS KNOWN OR FAMILIAR TO HIM, BUT A STRANGER TRAINED
ININTERROGATION TECHNIQUES.  THESE DEVELOPMENTS IN INDUSTRIAL LIFE
WARRANT A CONCOMITANT REAPPRAISAL BY THE BOARD OF THEIR IMPACT ON
STATUTORY RIGHTS.  CF. BOYS MARKETS, INC. V. RETAIL CLERKS, LOCAL 770,
398 U.S. 235, 250."  BRIEF FOR PETITIONER 27 N. 22. 

/11/ 1 BNA COLLECTIVE BARGAINING NEGOTIATIONS AND CONTRACTS 21:22
(GENERAL MOTORS CORP. AND AUTO WORKERS, PARA. 76A); 27:6 (GOODYEAR TIRE
& RUBBER CO. AND RUBBER WORKERS, ART. V (5)); 29:15 - 29:16 (UNITED
STATES STEEL ORP.  COAND UNITED STEELWORKERS, 8B(8.4) AND (8.7).  SEE,
E.G., THE BETHLEHEM STEEL CORP. AND UNITED STEELWORKERS AGREEMENT OF
1971, ART. XI, 4(D), WHICH PROVIDED: 

"ANY EMPLOYEE WHO IS SUMMONED TO MEET IN AN ENCLOSED OFFICE WITH A
SUPERVISOR FOR THE PURPOSE OF DISCUSSING POSSIBLE DISCIPLINARY ACTION
SHALL BE ENTITLED TO BE ACCOMPANIED BY THE ASSISTANT GRIEVANCE
COMMITTEEMAN DESIGNATED FOR THE AREA IF HE REQUESTS SUCH
REPRESENTATION, PROVIDED SUCH REPRESENTATIVE IS AVAILABLE DURING THE
SHIFT." 

/12/ SEE ALSO UNIVERSAL OIL PRODUCTS CO., 60 LAB.ARB.  832, 834
(1973):  "(AN EMPLOYEE IS ENTITLED TO THE PRESENCE OF A COMMITTEEMAN AT
AN INVESTIGATORY INTERVIEW IF HE REQUESTS ONE AND IF THE EMPLOYEE HAS
REASONABLE GROUNDS TO FEAR THAT THE INTERVIEW MAY BE USED TO SUPPORT
DISCIPLINARY ACTION AGAINST HIM."  ALLIED PAPER CO., 53 LAB.ARB.  226
(1969); THRIFTY DRUG STORES CO., INC., 50 LAB.ARB.  1253, 1262 (1968);
WASTE KING UNIVERSAL PRODUCTS CO., 46 LAB.ARB.  283, 286 (1966); DALLAS
MORNING NEWS, 40 LAB.ARB.  619, 623 - 624 (1963); THE ARCRODS CO., 39
LAB.ARB.  784, 788 - 789 (1962); VALLEY IRON WORKS, 33 LAB.ARB.  769,
771 (1960); SCHLITZ BREWING CO., 33 LAB.ARB.  57, 60 (1959); SINGER
MFG. CO., 28 LAB.ARB.  570 (1957); BRANIFF AIRWAYS, INC., 27 LAB.ARB. 
892 (1957); JOHN LUCAS & CO., 19 LAB.ARB.  344, 346 - 347 (1952). 
CONTRA, E.G., E. I. DUPONT DE NEMOURS & CO., 29 LAB.ARB.  646, 652
(1957); UNITED AIR LINES, INC., 28 LAB.ARB.  179, 180 (1956). 

MR. CHIEF JUSTICE BURGER, DISSENTING.  /1/ 

TODAY THE COURT STATES THAT, IN POSITING A NEW 7 RIGHT FOR
EMPLOYEES, THE "BOARD HAS ADEQUATELY EXPLICATED THE BASIS OF ITS
INTERPRETATION."  ANTE, AT 267.  I AGREE THAT THE BOARD HAS THE POWER
TO CHANGE ITS POSITION, BUT SINCE TODAY'S CASES REPRESENT A MAJOR
CHANGE IN POLICY AND A DEPARTURE FROM BOARD DECISIONS SPANNING ALMOST
30 YEARS THE CHANGE OUGHT TO BE JUSTIFIED BY A REASONED BOARD OPINION. 
THE BRIEF BUT SPECTACULAR EVOLUTION OF THE RIGHT, ONCE RECOGNIZED,
ILLUSTRATES THE PROBLEM.  IN QUALITY MFG. CO., 195 N.L.R.B. 197, 198
(1972), THE BOARD DISTINGUISHED ITS PRIOR CASES ON THE GROUND, INTER
ALIA, THAT "NONE OF THOSE CASES PRESENTED A SITUATION WHERE AN EMPLOYEE
OR HIS REPRESENTATIVE HAD BEEN DISCIPLINED OR DISCHARGED FOR
REQUESTING, OR INSISTING ON, UNION REPRESENTATION IN THE COURSE OF AN
INTERVIEW."  YET, SOON AFTERWARDS THE BOARD EXTENDED THE RIGHT WITHOUT
EXPLANATION TO SITUATIONS WHERE NO DISCIPLINE OR DISCHARGE RESULTED. 
MOBIL OIL CORP., 196 N.L.R.B. 1052 (1972); J. WEINGARTEN INC., 202
N.L.R.B. 446 (1973). 

THE TORTURED HISTORY AND INCONSISTENCY OF THE BOARD'S EFFORTS IN
THIS DIFFICULT AREA SUGGEST THE NEED FOR AN EXPLANATION BY THE BOARD OF
WHY THE NEW RULE WAS ADOPTED.  HOWEVER, A MUCH MORE BASIC POLICY
DEMANDS THAT THE BOARD EXPLAIN ITS NEW CONSTRUCTION.  THE INTEGRITY OF
THE ADMINISTRATIVE PROCESS REQUIRES THAT "(WHEN THE BOARD SO EXERCISES
THE DISCRETION GIVEN TO IT BY CONGRESS, IT MUST 'DISCLOSE THE BASIS OF
ITS ORDER' AND 'GIVE CLEAR INDICATION THAT IT HAS EXERCISED THE
DISCRETION WITH WHICH CONGRESS HAS EMPOWERED IT.'  PHELPS DODGE CORP.
V. LABOR BOARD, 313 U.S. 177, 197."  NLRB V. METROPOLITAN 

380 U.S. INS. CO., 438, 443 (1965).  HERE, THERE MAY BE VERY GOOD
REASONS FOR ADOPTING THE NEW RULE, AND THE COURT SUGGESTS SOME.  SEE
ANTE, AT 260 - 261; 262 - 264; 265 N. 10.  BUT THESE REASONS ARE NOT TO
BE FOUND IN THE BOARD'S CASES.  IN METROPOLITAN INS. CO., SUPRA, AT
444, WE MADE IT CLEAR THAT "'COURTS MAY NOT ACCEPT APPELLATE COUNSEL'S
POST HOC RATIONALIZATIONS FOR AGENCY ACTION.'"  THE COURT TODAY GIVES
LIP SERVICE TO THE RULE THAT COURTS ARE NOT "'TO STAND ASIDE AND RUBBER
STAMP'" BOARD DETERMINATIONS.  ANTE, AT 266. 

I WOULD THEREFORE REMAND THE CASES TO THE COURT OF APPEALS WITH
DIRECTIONS TO REMAND TO THE BOARD SO THAT IT MAY ENLIGHTEN US AS TO THE
REASONS FOR THIS MARKED HANGE IN POLICY RATHER THAN LEAVE WITH THIS
COURT THE BURDEN OF JUSTIFYING THE CHANGE FOR REASONS WHICH WE ARRIVE
AT BY INFERENCE AND SURMISE. 

/1/ (THIS OPINION APPLIES ALSO TO NO. 73 - 765, INTERNATIONAL
LADIES' GARMENT WORKERS' UNION, UPPER SOUTH DEPARTMENT, AFL-CIO V.
QUALITY MANUFACTURING CO. ET AL., POST, P. 276.) 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE STEWART JOINS, 

DISSENTING. 

140, GUARANTEES TO EMPLOYEES THE RIGHT TO "ENGAGE IN . . . CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION."  THE COURT TODAY CONSTRUES THAT RIGHT TO INCLUDE UNION
REPRESENTATION OR THE PRESENCE OF ANOTHER EMPLOYEE /1/ AT ANY INTERVIEW
THE EMPLOYEE REASONABLY FEARS INTERVIEW IS NOT CONCERTED ACTIVITY
WITHIN THE INTENDMENT OF THE ACT.  AN EMPLOYEE'S RIGHT TO HAVE A UNION
REPRESENTATIVE OR ANOTHER EMPLOYEE PRESENT AT AN INVESTIGATORY
INTERVIEW IS A MATTER THAT CONGRESS LEFT TO THE FREE AND FLEXIBLE
EXCHANGE OF THE BARGAINING PROCESS. 

THE MAJORITY OPINION ACKNOWLEDGES THAT THE NLRB HAS ONLY RECENTLY
DISCOVERED THE RIGHT TO UNION REPRESENTATION IN EMPLOYER INTERVIEWS. 
IN FACT, AS LATE AS 1964--AFTER ALMOST 30 YEARS OF EXPERIENCE WITH 7--
THE BOARD FLATLY REJECTED AN EMPLOYEE'S CLAIM THAT SHE WAS ENTITLED TO
UNION REPRESENTATION IN A "DISCHARGE CONVERSATION" WITH THE GENERAL
MANAGER, WHO LATER ADMITTED THAT HE HAD ALREADY DECIDED TO FIRE HER. 
THE BOARD ADOPTED THE TRIAL EXAMINER'S ANALYSIS: 

     "I FAIL TO PERCEIVE ANYTHING IN THE ACT WHICH OBLIGES AN

  EMPLOYER TO PERMIT THE PRESENCE OF A REPRESENTATIVE OF THE

  BARGAINING AGENT IN EVERY SITUATION WHERE AN EMPLOYER IS

  COMPELLED TO ADMONISH OR TO OTHERWISE TAKE DISCIPLINARY ACTION

  AGAINST AN EMPLOYEE, PARTICULARLY IN THOSE SITUATIONS WHERE THE

  EMPLOYEE'S CONDUCT IS UNRELATED TO ANY LEGITIMATE UNION OR

  CONCERTED ACTIVITY.  AN EMPLOYER UNDOUBTEDLY HAS THE RIGHT TO

  MAINTAIN DAY-TO-DAY DISCIPLINE IN THE PLANT OR ON THE WORKING

  PREMISES AND ITS SEEMS TO ME THAT ONLY EXCEPTIONAL CIRCUMSTANCES

  SHOULD WARRANT ANY INTERFERENCE WITH THIS RIGHT."  DOBBS HOUSES,

  INC., 145 N.L.R.B. 1565, 1571 (1964).  /2/ 

THE CONVOLUTED COURS5 OF LITIGATION FROM DOBBS HOUSES TO QUALITY
MFG. HARDLY SUGGESTS THAT THE BOARD'S CHANGE OF HEART RESULTED FROM A
LOGICAL "EVOLUTIONAL APPROACH."  ANTE, AT 265.  THE BOARD INITIALLY
RETREATED FROM DOBBS HOUSES, DECIDING THAT IT ONLY APPLIED TO
"INVESTIGATORY" INTERVIEWS AND HOLDING THAT IF THE EMPLOYER ALREADY HAD
DECIDED ON DISCIPLINE THE UNION HAD A 8(A)(5) RIGHT TO ATTEND THE
INTERVIEW.  TEXACO, INC., HOUSTON PRODUCING DIVISION, 168 N.L.R.B. 361
(1967), ENFORCEMENT DENIED, 408 F.2D 142 (CA5 1969).  IT REASONED THAT
EMPLOYEE DISCIPLINE SUFFICIENTLY AFFECTS A "TERM OR CONDITION OF
EMPLOYMENT" TO IMPLICATE THE EMPLOYER'S OBLIGATION TO CONSULT WITH THE
EMPLOYEE'S BARGAINING REPRESENTATIVE, AND THAT DIRECT DEALING WITH AN
EMPLOYEE ON AN ISSUE OF DISCIPLINE VIOLATED 8(A)(5).  /3/ FOR SEVERAL
YEARS, THE BOARD ADHERED TO ITS DISTINCTION BETWEEN "INVESTIGATIVE" AND
"DISCIPLINARY" INTERVIEWS, DISMISSING CLAIMS UNDER BOTH 8(A)(1) AND
8(A)(5) IN THE ABSENCE OF EVIDENCE THAT THE EMPLOYER HAD DECIDED TO
DISCIPLINE THE EMPLOYEE.  /4/ 

QUALITY MFG. CO. WAS FIRST CASE IN WHICH THE BOARD PERCEIVED ANY
GREATER CONTENT IN 7.  IT DID SO, NOT BY RELYING ON "SIGNIFICANT
DEVELOPMENTS IN INDUSTRIAL LIFE," ANTE, AT 265, BUT BY STATING SIMPLY
THAT IN NONE OF THE EARLIER CASES HAD A WORKER BEEN FIRED FOR INSISTING
ON UNION REPRESENTATION.  THE BOARD ALSO ASSERTED, FOR THE FIRST TIME,
THAT ITS EARLIER DECISIONS HAD DISPOSED OF ONLY THE UNION'S RIGHT TO
BARGAIN WITH THE EMPLOYER OVER THE DISCIPLINE TO BE IMPOSED, AND HAD
NOT DEALT WITH THE EMPLOYEE'S RIGHT UNDER 7 TO INSIST ON UNION PRESENCE
AT MEETINGS THAT HE REASONABLY FEARS WOULD LEAD TO DISCIPLINARY
ACTION.  195 N.L.R.B. 197, 198.  EVEN THIS DISTINCTION WAS ABANDONED
SOME FOUR MONTHS LATER IN MOBIL OIL CORP., 196 N.L.R.B. 1052 (1972),
ENFORCEMENT DENIED, 482 F.2D 842 (CA7 1973).  THERE THE BOARD FOLLOWED
QUALITY MFG., EVEN THOUGH THE EMPLOYEES IN MOBIL OIL HAD NOT BEEN FIRED
FOR INSISTING ON UNION REPRESENTATION AND THEIR ONLY CLAIM WAS THAT THE
EMPLOYER HAD EXCLUDED THE UNION FROM AN INVESTIGATORY INTERVIEW.  THUS,
THE BOARD HAS TURNED ITS BACK ON DOBBS HOUSES AND NOW FINDS A 7 RIGHT
TO INSIST ON UNION PRESENCE IN THE ABSENCE OF ANY EVIDENCE THAT THE
EMPLOYER HAS DECIDED TO EMBARK ON A COURSE OF DISCIPLINE. 

CONGRESS' GOAL IN ENACTING FEDERAL LABOR LEGISLATION WAS TO CREATE A
FRAMEWORK WITHIN WHICH LABOR AND MANAGEMENT CAN ESTABLISH THE MUTUAL
RIGHTS AND OBLIGATIONS THAT GOVERN THE EMPLOYMENT RELATIONSHIP.  "THE
THEORY OF THE ACT IS THAT FREE OPPORTUNITY FOR NEGOTIATION WITH
ACCREDITED REPRESENTATIVES OF EMPLOYEES IS LIKELY TO PROMOTE INDUSTRIAL
PEACE AND MAY BRING ABOUT THE ADJUSTMENTS AND AGREEMENTS WHICH THE ACT
IN ITSELF DOES NOT ATTEMPT TO COMPEL."  NLRB V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1, 45 (1937).  THE NATIONAL LABOR RELATIONS ACT ONLY
CREATES THE STRUCTURE FOR THE PARTIES' EXERCISE OF THEIR RESPECTIVE
ECONOMIC STRENGTHS; IT LEAVES DEFINITION OF THE PRECISE CONTOURS OF THE
EMPLOYMENT RELATIONSHIP TO THE COLLECTIVE-BARGAINING PROCESS.  SEE
PORTER CO. V. NLRB, 397 U.S. 99, 108 (1970); NLRB V. AMERICAN NATIONAL
INSURANCE CO., 343 U.S. 395, 402 (1952). 

AS THE COURT NOTED IN EMPORIUM CAPWELL CO. V. WESTERN ADDITION
COMMUNITY ORGANIZATION, 7 GUARANTEES EMPLOYEES' BASIC RIGHTS OF
INDUSTRIAL SELF-ORGANIZATION, RIGHTS WHICH ARE FOR THE MOST PART
"COLLECTIVE RIGHTS . . . TO ACT IN CONCERT WITH ONE'S FELLOW EMPLOYEES,
(WHICH) ARE PROTECTED, NOT FOR THEIR OWN SAKE, BUT AS AN INSTRUMENT OF
THE NATIONAL LABOR POLICY OF MINIMIZING INDUSTRIAL STRIFE 'BY
ENCOURAGING THE PRACTICE AND PROCEDURE OF COLLECTIVE BARGAINING.'" 
ANTE, AT 62.  SECTION 7 PROTECTS THOSE RIGHTS THAT ARE ESSENTIAL TO
EMPLOYEE SELF-ORGANIZATION AND TO THE EXERCISE OF ECONOMIC WEAPONS TO
EXACT CONCESSIONS FROM MANAGEMENT AND DEMAND A VOICE IN DEFINING THE
TERMS OF THE EMPLOYMENT RELATIONSHIP.  /5/ IT DOES NOT DEFINE THOSE
TERMS ITSELF. 

THE POWER TO DISCIPLINE OR DISCHARGE EMPLOYEES HAS BEEN RECOGNIZED
UNIFORMLY AS ONE OF THE ELEMENTAL PERROGATIVES OF MANAGEMENT.  ABSENT
SPECIFIC LIMITATIONS IMPOSED BY STATUTE.  /6/ OR THROUGH THE PROCESS OF
COLLECTIVE BARGAINING, /7/ MANAGEMENT REMAINS FREE TO DISCHARGE
EMPLOYEES AT WILL.  SEE STEELWORKERS V. WARRIOR & GULF CO., 363 U.S.
574, 583 (1960).  AN EMPLOYER'S NEED TO CONSIDER AND UNDERTAKE
DISCIPLINARY ACTION WILL ARISE IN A WIDE VARIETY OF UNPREDICTABLE
SITUATIONS.  THE APPROPRIATE DISCIPLINARY RESPONSE ALSO WILL VARY
SIGNIFICANTLY, DEPENDING ON THE NATURE AND SEVERITY OF THE EMPLOYEE'S
CONDUCT.  LIKEWISE, THE NATURE AND AMOUNT OF INFORMATION REQUIRED FOR
DETERMINING THE APPROPRIATENESS OF DISCIPLINARY ACTION MAY VARY WITH
THE SEVERITY OF THE POSSIBLE SANCTION AND THE COMPLEXITY OF THE
PROBLEM.  AND IN SOME INSTANCES, THE EMPLOYER'S LEGITIMATE NEED TO
MAINTAIN DISCIPLINE AND SECURITY MAY REQUIRE AN IMMEDIATE RESPONSE. 
THIS VARIETY AND COMPLEXITY NECESSARILY CALL FOR FLEXIBLE AND CREATIVE
ADJUSTMENT.  AS THE COURT RECOGNIZES, ANTE, AT 267, THE QUESTION OF
UNION PARTICIPATION IN INVESTIGATORY INTERVIEWS IS A STANDARD TOPIC OF
COLLECTIVE BARGAINING.  /8/  MANY AGREEMENTS INCORPORATE PROVISIONS
THAT GRANT AND DEFINE SUCH RIGHTS, AND ARBITRATION DECISIONS
INCREASINGLY HAVE BEGUN TO RECOGNIZE THEM AS WELL.  RATHER THAN
VINDICATE THE BOARD'S INTERPRETATION OF 7, HOWEVER, THESE DEVELOPMENTS
SUGGEST TO ME THAT UNION REPRESENTATION IN INVESTIGATORY INTERVIEWS IS
A MATTER THAT CONGRESS LEFT TO THE BARGAINING PROCESS.  EVEN AFTER
AFFORDING APPROPRIATE DEFERENCE TO THE BOARD'S MEANDERING
INTERPRETATION OF THE ACT, I CONCLUDE THAT THE RIGHT ANNOUNCED TODAY IS
NOT AMONG THOSE THAT CONGRESS INTENDED TO PROTECT IN 7.  THE TYPE OF
PERSONALIZED INTERVIEW WITH WHICH WE ARE HERE CONCERNED IS SIMPLY NOT
"CONCERTED ACTIVITY" WITHIN THE MEANING OF THE ACT. 

/1/ WHILE THE COURT SPEAKS ONLY OF THE RIGHT TO INSIST ON THE
PRESENCE OF A UNION REPRESENTATIVE, IT MUST BE ASSUMED THAT THE 7 RIGHT
TODAY RECOGNIZED, AFFORDING EMPLOYEES THE RIGHT TO ACT "IN CONCERT" IN
EMPLOYER INTERVIEWS, ALSO EXISTS IN THE ABSENCE OF A RECOGNIZED UNION. 
CF. NLRB V. WASHINGTON ALUMINUM CO., 370 U.S. 9 (1962). 

/2/ IN ONE EARLIER CASE THE BOARD HAD FOUND A 8(A)(1) VIOLATION IN
THE EMPLOYER'S REFUSAL TO ADMIT A UNION REPRESENTATIVE TO AN
INTERVIEW.  ROSS GEAR & TOOL CO., 63 N.L.R.B. 1012, 1033 - 1034 (1945),
ENFORCEMENT DENIED, 158 F.2D 607, 611 - 614 (CA7 1947).  IN THAT CASE,
HOWEVER, THE BOARD FOUND THAT THE EMPLOYEE, A UNION COMMITTEE MEMBER,
WAS CALLED IN TO DISCUSS A PENDING UNION ISSUE.  THE BOARD FOUND THAT
DISCHARGING HER FOR INSISTING ON THE PRESENCE OF THE ENTIRE COMMITTEE
WAS A DISCRIMINATORY DISCHARGE UNDER 8(A)(1).  THE OPINION IN DOBBS
HOUSES DISTINGUISHED ROSS GEAR ON THE GROUND THAT THE MATTER UNDER
INVESTIGATION WAS PROTECTED UNION ACTIVITY.  145 N.L.R.B.,AT 1571. 

/3/ THE BOARD HAS NOT BEEN CALLED UPON TO PURSUE ITS 8(A)(5) THEORY
TO ITS LOGICAL CONCLUSION.  ITS DETERMINATION THAT ALL DISCIPLINARY
DECISIONS ARE MATTERS THAT INVOKE THE EMPLOYER'S MANDATORY DUTY TO
BARGAIN WOULD SEEM TO SUGGEST THAT, ABSENT SOME QUALIFICATION OF THE
DUTY CONTAINED IN THE COLLECTIVE-BARGAINING AGREEMENT, FEDERAL LAW WILL
NOW BE READ TO REQUIRE THAT THE EMPLOYER BARGAIN TO IMPASSE BEFORE
INITIATING UNILATERAL ACTION ON DISCIPLINARY MATTERS.  IT IS DIFFICULT
TO BELIEVE THAT CONGRESS INTENDED SUCH A RADICAL RESTRICTION OF THE
EMPLOYER'S POWER TO DISCIPLINE EMPLOYEES.  SEE FIBREBOARD CORP. V. NLRB
, 379 U.S. 203, 217, 218, 223 (STEWART, J., CONCURRING). 

/4/ LAFAYETTE RADIO ELECTRONICS, 194 N.L.R.B. 491 (1971); ILLINOIS
BELL TELEPHONE CO., 192 N.L.R.B. 834 (1971); TEXACO, INC., LOS ANGELES
TERMINAL, 179 N.L.R.B. 976 (1969); JACOBE-PEARSON FORD, INC., 172
N.L.R.B. 594 (1968); CHEVRON COIL CO., 168 N.L.R.B. 574 (1967). 

/5/ BY CONTRAST, THE EMPLOYEE'S 7 RIGHT ANNOUNCED TODAY MAY PROVE TO
BE OF LIMITED VALUE TO THE EMPLOYEE OR TO THE STABILIZATION OF LABOR
RELATIONS GENERALLY.  THE COURT APPEARS TO ADOPT THE BOARD'S VIEW THAT
INVESTIGATORY INTERVIEWS ARE NOT BARGAINING SESSIONS AND THAT THE
EMPLOYER LEGITIMATELY CAN INSIST ON HEARING ONLY THE EMPLOYEE'S VERSION
OF THE FACTS.  ABSENT EMPLOYER INVITATION, IT WOULD APPEAR THAT THE
EMPLOYEE'S 7 RIGHT DOES NOT ENCOMPASS THE RIGHT TO INSIST ON THE
PARTICIPATION OF THE PERSON HE BRINGS WITH HIM TO THE INVESTIGATORY
MEETING.  THE NEW RIGHT THUS APPEARS RESTRICTED TO THE PRIVILEGE TO
INSIST ON THE MUTE AND INACTIVE PRESENCE OF A FELLOW EMPLOYEE OR A
UNION REPRESENTATIVE; A WITNESS TO THE INTERVIEW, PERHAPS. 

/6/ SECTION 8(A)(1) FORBIDS EMPLOYERS TO TAKE DISCIPLINARY ACTIONS
THAT "INTERFERE WITH, RESTRAIN, OR COERCE" THE EMPLOYEE'S EXERCISE OF 7
RIGHTS.  OTHER FEDERAL STATUTES ALSO LIMIT IN CERTAIN RESPECTS THE
EMPLOYER'S BASIC POWER TO DISCIPLINE AND DISCHARGE EMPLOYEES.  SEE,
E.G., 706 OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 259, 42 U.S.C.
2000E - 5; AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, 81 STAT. 602,
29 U.S.C. 623. 

/7/ THE BOARD AND THE COURTS HAVE RECOGNIZED THAT UNION DEMANDS FOR
PROVISIONS LIMITING THE EMPLOYER'S POWER TO DISCHARGE CAN BE THE
SUBJECT OF MANDATORY BARGAINING.  SEE FIBREBOARD CORP. V. NLRB, 379
U.S.,AT 217, 221 - 223 (STEWART, J., CONCURRING). 

/8/ THE HISTORY OF A SIMILAR CASE, MOBIL OIL, 196 N.L.R.B. 1052
(1972), ENFORCEMENT DENIED, 482 F.2D 842 (CA7 1973), ILLUSTRATES HOW
THE BOARD HAS SUBSTITUTED ITS JUDGMENT FOR THAT OF THE COLLECTIVE
BARGAISNING PROCESS.  DURING NEGOTIATIONS LEADING TO THE ESTABLISHMENT
OF A COLLECTIVE-BARGAINING AGREEMENT IN THAT CASE, THE UNION ADVANCED A
DEMAND THAT EXISTING PROVISIONS GOVERNING SUSPENSION AND DISCHARGE BE
AMENDED TO PROVIDE FOR COMPANY-UNION DISCUSSIONS PRIOR TO DISCIPLINARY
ACTION.  THE EMPLOYER REFUSED TO A CEDE TO THAT DEMAND AND ULTIMATELY
PR AILED, ONLY TO FIND HIS EFFORTS AT THE BARGAINING TABLE VOIDED BY
THE BOARD'S INTERPRETATION OF THE STATUTE. 

CHAIRMAN MILLER SUBSEQUENTLY SUGGESTED THAT THE UNION CAN WAIVE THE
EMPLOYEE'S 7 RIGHT TO THE PRESENCE OF A UNION REPRESENTATIVE.  SEE
WESTERN ELECTRIC CO., 198 N.L.R.B. 82 (1972).  THE COURT TODAY PROVIDES
NO INDICATION WHETHER SUCH WAIVERS IN THE COLLECTIVE-BARGAINING PROCESS
ARE PERMISSIBLE.  CF. NLRB V. MAGNAVOX CO., 415 U.S. 322 (1974). 

PATRICK HARDIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, PETER G. NASH, JOHN S. IRVING,
NORTON J. COME, AND LINDA SHER. 

NEIL MARTIN ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

JERRY KRONENBERG AND MILTON SMITH FILED A BRIEF FOR THE CHAMBER OF
COMMERCE OF THE UNITED STATES AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :









GARMENT WORKERS V. QUALITY MFG. CO., 420 U.S. 276 


       INTERNATIONAL LADIES' GARMENT WORKERS' UNION, UPPER SOUTH

           DEPARTMENT, AFL - CIO V. QUALITY MANUFACTURING CO. ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 73 - 765.  ARGUED NOVEMBER 18, 1974--DECIDED FEBRUARY

           19, 1975; 481 F.2D 1018, REVERSED AND REMANDED. 


    RESPONDENT EMPLOYER'S DENIAL OF EMPLOYEE'S REQUEST THAT HER

  UNION REPRESENTATIVE BE PRESENT AT INVESTIGATIVE INTERVIEW THAT

  THE EMPLOYEE REASONABLY BELIEVED MIGHT RESULT IN DISCIPLINARY

  ACTION CONSTITUTED UNFAIR LABOR PRACTICE VIOLATIVE OF 8(A)(1) OF

  THE NATIONAL LABOR RELATIONS ACT BECAUSE IT INTERFERED WITH,

  RESTRAINED, AND COERCED THE INDIVIDUAL RIGHT OF THE EMPLOYEES

  PROTECTED BY 7 OF THE ACT.  NLRB V. WEINGARTEN, INC., ANTE, P.

  251.  P. 281. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, WHITE, MARSHALL, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

  BURGER, C. J., FILED A DISSENTING OPINION, ANTE, P. 268.  POWELL,

  J., FILED A DISSENTING OPINION, IN WHICH STEWART, J., JOINED,

  POST, P. 282. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

WE SET THIS CASE FOR ARGUMENT WITH NO. 72 - 1363, NLRB V. WEINGARTEN,
INC., ANTE, P. 251, 416 U.S. 968 (1974).  THE NATIONAL LABOR RELATIONS
BOARD HELD IN THIS CASE, AS IT HELD IN WEINGARTEN, THAT THE DENIAL BY
RESPONDENT EMPLOYER (HEREINAFTER RESPONDENT) OF AN EMPLOYEE'S REQUEST
THAT HER UNION REPRESENTATIVE BE PESENT AT AN INVESTIGATORY INTERVIEW
WHICH THE EMPLOYEE REASONABLY BELIEVED MIGHT RESULT IN DISCIPLINARY
ACTION, CONSTITUTED AN UNFAIR LABOR PRACTICE IN VIOLATION OF 8(A)(1) OF
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 61 STAT. 140, 29 U.S.C.
158(A)(1), BECAUSE IT INTERFERED WITH, RESTRAINED, AND COERCED THE
INDIVIDUAL RIGHT OF THE EMPLOYEE, PROTECTED BY 7 OF THE ACT, 29 U.S.C.
157, "TO ENGAGE IN . . . CONCERTED ACTIVITIES FOR . . . MUTUAL AID OR
PROTECTION . . .," 195 N.L.R B. 197 (1972) THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT HELD, AS THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD
IN WEINGARTEN, THAT THIS WAS AN IMPERMISSIBLE CONSTRUCTION OF 7 AND
DENIED ENFORCEMENT OF SO MUCH OF THE BOARD'S ORDER AS DIRECTED
RESPONDENT TO CEASE AND DESIST FROM REQUIRING AN EMPLOYEE REQUESTING
SUCH REPRESENTATION TO TAKE PART IN SUCH AN INTERVIEW WITHOUT THAT
REPRESENTATION IF THE EMPLOYEE REASONABLY FEARED DISCIPLINARY ACTION,
AND ALSO REFUSED ENFORCEMENT OF PROVISIONS THAT DIRECTED RESPONDENT TO
OFFER REINSTATEMENT, WITH BACKPAY TO THE EMPLOYEES WHO WERE DISCHARGED
FOR ASSERTING THIS RIGHT.  481 F.2D 1018 (1973).  WE REVERSE. 

RESPONDENT, A MANUFACTURER OF WOMEN'S CLOTHING, DISCHARGED CATHERINE
KING ON OCTOBER 16, 1969, AFTER SHE REFUSED TO ATTEND AN INTERVIEW WITH
THE COMPANY PRESIDENT WITHOUT UNION REPRESENTATION.  THAT SAME DAY, THE
COMPANY DISCHARGED SHOP CHAIRLADY DELILA MULFORD FOR HER PERSISTENCE IN
SEEKING TO REPRESENT KING AT THE INTERVIEW, AND ASSISTANT CHAIRLADY
MARTHA COCHRAN FOR FILING GRIEVANCES ON BEHALF OF KING AND MULFORD. 

THE EVENTS LEADING TO THE DISCHARGES BEGAN ON OCTOBER 10, 1969, WHEN
MULFORD, KING, AND TWO OTHER EMPLOYEES MET WITH LAWRENCE GERLACH, SR.,
THE COMPANY PRESIDENT, MARY KATHRYN GERLACH, HIS WIFE AND COMPANY
PRODUCTION MANAGER, AND LAWRENCE GERLACH, JR., THEIR SON AND GENERAL
MANAGER, TO COMPLAIN THAT THEY WERE UNABLE TO MAKE A SATISFACTORY WAGE
UNDER THE PIECEWORK SYSTEM THEN IN EFFECT.  THE MEETING ENDED ON AN
ACRIMONIOUS NOTE WHEN GERLACH, JR., ORDERED THE EMPLOYEES TO RETURN TO
WORK AND TOLD THEM THAT THEY WERE FREE TO "GO ELSEWHERE" IF THEY WERE
DISSATISFIED WITH THE COMPANY.  LATER THAT DAY, MRS. GERLACH NOTICED
THAT KING HAD SHUT OFF HER MACHINE AND WAS SPEAKING TO SEVERAL OTHER
WORKERS WHO HAD ALSO STOPPED THEIR MACHINES.  WHEN ORDERED TO RESUME
PRODUCTION, KING TOLD MRS. GERLACH TO MIND HER OWN BUSINESS.  THEREUPON
MRS. GERLACH DIRECTED KING TO REPORT TO GERLACH, SR.'S OFFICE.  KING
COMPLIED, BUT ON HER WAY TO THE OFFICE ASKED UNION CHAIRLADY MULFORD TO
ACCOMPANY HER.  GERLACH, SR., MET KING AND MULFORD IN THE ANTEROOM TO
HIS OFFICE.  HE TOLD MULFORD TO RETURN TO WORK, AND ORDERED KING INTO
HIS OFFICE ALONE.  NEITHER WOMAN COMPLIED, AND KING STATED THAT SHE
WOULD NOT SUBMIT TO AN INTERVIEW IN THE ABSENCE OF HER UNION
REPRESENTATIVE.  AT THIS, GERLACH, SR., TOLD BOTH WOMEN TO RETURN TO
THEIR WORK STATIONS.  THAT SUNDAY, OCTOBER 12, MRS. GERLACH PHONED
MULFORD AND TOLD HER THAT SHE WAS SUSPENDED FOR TWO DAYS.  THE BOARD
FOUND THAT THE SUSPENSION WAS MOTIVATED BY MULFORD'S ATTEMPT TO
REPRESENT KING AT THE INTERVIEW WITH GERLACH, SR.  195 N.L.R.B.,AT
199. 

ON MONDAY, OCTOBER 13, WHEN KING REPORTED FOR WORK HER TIMECARD WAS
MISSING FROM THE RACK, INDICATING UNDER PLANT PRACTICE THAT SHE WAS
WANTED IN THE PRESIDENT'S OFFICE.  BEFORE GOING TO THE OFFICE, HOWEVER,
KING ASKED ASSISTANT CHAIRLADY COCHRAN TO ACCOMPANY HER.  THEY WERE MET
AT THE PRESIDENT'S OFFICE BY MRS. GERLACH WHO TOLD COCHRAN TO GO
DIRECTLY TO WORK IF SHE WANTED TO KEEP HER JOB BECAUSE THE PRESIDENT
WANTED TO TAKE UP WITH KING WHERE THEY LEFT OFF ON FRIDAY.  COCHRAN
REPLIED:  "WELL, MRS. GERLACH, I'M SORRY, BUT IF THAT'S WHAT YOU WANT
TO TALK TO HER ABOUT, THAT IS UNION BUSINESS AND SHE HAS ASKED ME TO
REPRESENT HER."  GERLACH, SR., TOLD KING HE WOULD NOT RETURN HER
TIMECARD UNTIL SHE MET WITH HIM ALONE IN HIS OFFICE.  KING AND COCHRAN
THEN WAITED OUTSIDE THE PRESIDENT'S OFFICE ALL DAY, AND DURING THIS
TIME COCHRAN'S TIMECARD WAS ALSO REMOVED FROM THE RACK. 

AGAIN ON THE MORNING OF OCTOBER 14, GERLACH, SR., TOLD KING HE WOULD
NOT RETURN HER TIMECARD UNTIL SHE AGREED TO MEET WITH HIM ALONE.  WHEN
COCHRAN ASKED ABOUT HER TIMECARD, GERLACH REPLIED THAT SHE WAS
SUSPENDED FOR TWO DAYS FOR BEING AWAY FROM HER MACHINE.  THE BOARD
TERMED THIS REASON "PRETEXTUAL," AND FOUND THAT IN FACT COCHRAN'S
ATTEMPT TO REPRESENT KING WAS THE REASON FOR THE SUSPENSION.  NEITHER
KING NOR COCHRAN WORKED THAT DAY.  MUCH THE SAME TRANSPIRED THE NEXT
DAY, BUT THIS TIME MULFORD, WHOSE TWO-DAY SUSPENSION HAD EXPIRED, WAS
ALSO PRESENT.  AFTER KING REFUSED TO MEET IN PRIVATE WITH GERLACH, SR.,
SHE AND COCHRAN LEFT THE PLANT, AND MULFORD RETURNED TO WORK. 

FINALLY, ON OCTOBER 16, ALL THREE WOMEN WENT TO THE PRESIDENT'S
OFFICE.  MRS. GERLACH GAVE COCHRAN HER TIMECARD AND SHE RETURNED TO
WORK.  GERLACH, SR., TOLD KING IF SHE REFUSED AGAIN TO MEET WITH HIM
ALONE SHE WOULD BE FIRED.  KING WALKED OUT.  MULFORD THEN ASKED IF SHE
COULD RETURN TO WORK, AND GERLACH, SR., REPLIED:  "NO, YOU'VE ABANDONED
YOUR JOB.  YOU'RE FINISHED."  LATER THAT SAME DAY, COCHRAN ATTEMPTED TO
PRESENT GRIEVANCES ON BEHALF OF KING, MULFORD, AND HERSELF TO GERLACH,
JR.  HE STATED HE WAS ABOUT TO LEAVE TOWN AND HAD NO TIME FOR SUCH
THINGS.  WHEN SHE PUT THE LIST OF GRIEVANCES ON HIS DESK, HE PICKED
THEM UP AND THREW THEM INTO THE WASTEBASKET.  HE THEN PULLED COCHRAN'S
TIMECARD AND TOLD HER:  "YOU WORKED THIS MORNING, BUT YOU'RE NOT
WORKING THIS AFTERNOON."  WHEN COCHRAN ASKED GERLACH, SR., IF SHE HAD
BEEN FIRED HE REPLIED:  "JUST GO HOME.  YOU WANTED TO DRAW UNEMPLOYMENT
NOW GO ON AND DRAW IT."  /1/ 

THE BOARD FOUND THAT "(THERE CAN BE NO DOUBT THAT UNDER THE FACTS
AND CIRCUMSTANCES OF THIS CASE KING HAD REASONABLE GOUNDS TO BELIEVE
THAT DISCIPLINARY ACTION MIGHT RESULT FROM THE EMPLOYER'S INVESTIGATION
OF HER CONDUCT."  195 N.L.R.B.,AT 199.  KING, THEREFORE, HAD A
REASONABLE BASIS FOR DESIRING UNION REPRESENTATION, AND THE BOARD FOUND
THAT RESPONDENT DISCHARGED HER FOR INSISTING ON THAT RIGHT.  THE BOARD
FOUND FURTHER THAT MULFORD AND COCHRAN WERE SUSPENDED, AND MULFORD
DISCHARGED, BECAUSE THEY INSISTED ON REPRESENTING KING AT THE
INTERVIEW.  SINCE MULFORD AND COCHRAN WERE ENGAGING IN A PROTECTED
CONCERTED ACTIVITY, THE SUSPENSIONS AND MULFORD'S DISCHARGE VIOLATED
8(A)(1).  FINALLY, THE BOARD DETERMINED THAT RESPONDENT DISCHARGED
COCHRAN BECAUSE SHE SOUGHT TO FILE GRIEVANCES ON BEHALF OF KING,
MULFORD, AND HERSELF, AND THAT HIS DISCHARGE WAS IN VIOLATION OF
8(A)(1) AND (3).  /2/ 

ON THESE FACTS, OUR DECISION TODAY IN NO. 73 - 1363, NLRB V.
WEINGARTEN, INC., ATE, P. 251, CLEARLY REQUIRES REVERSAL OF THE
JUDGMENT OF THE COURT OF APPEALS INSOFAR AS ENFORCEMENT OF THE BOARD'S
ORDER WAS DENIED.  /3/ THE JUDGMENT IS ACCORDINGLY REVERSED AND THE
CASE REMANDED TO THE COURT OF APPEALS WITH DIRECTION TO ENTER A NEW
JUDGMENT ENFORCING THE BOARD'S ORDER IN ITS ENTIRETY. 

IT IS SO ORDERED. 

/1/ LATER THAT DAY, COCHRAN TELEPHONE GERLACH, SR.'S SECRETARY TO
LEARN WHETHER GERLACH WANTED HER TO REPORT TO WORK THE NEXT DAY.  THE
SECRETARY TOLD HER:  "HE SAID NO."  COCHRAN THEN ASKED THE SECRETARY TO
"TELL HIM THAT HE CAN REACH ME AT MY HOME PHONE WHEN HE NEEDS ME." 
COCHRAN WAS NEVER NOTIFIED TO RETURN TO WORK.  THE TRIAL EXAMINER
FOUND, AND THE BOARD AGREED, THAT COCHRAN WAS DISCHARGED, AND THAT SHE
DID NOT ABANDON HER JOB.  195 N.L.R.B. 197, 199 N. 9. 

/2/ THE COURT OF APPEALS ENFORCED THAT PORTION OF THE BOARD'S ORDER
RELATING TO COCHRAN'S DISCHARGE.  THE COURT DETERMINED THAT THERE WAS
SUBSTANTIAL EVIDENCE TO SUPPORT THE BOARD'S FINDING THAT SHE WAS
DISCHARGED BECAUSE SHE SOUGHT TO ENGAGE IN THE PROTECTED UNION ACTIVITY
OF FILING GRIEVANCES ON BEHALF OF KING, MULFORD, AND HERSELF.  THE
COMPANY HAS NOT FILED A CROSS-PETITION, AND THAT ASPECT OF THE COURT OF
APPEALS' DECISION IS NOT BEFORE US.  BRENNAN V. ARNHEIM & NEELY, INC.,
410 U.S. 512, 516 (1973); NLRB V. INTERNATIONAL VAN LINES, 409 U.S. 48,
52 N. 4 (1972); ALASKA IND. BD. V. CHUGACH ASSN., 356 U.S. 320, 325
(1958). 

/3/ WE DO NOT ADDRESS RESPONDENT'S OBJECTION THAT IT WAS DENIED
PROCEDURAL DUE PROCESS BECAUSE THE BOARD BASED ITS ORDER UPON A THEORY
OF LIABILITY UNDER 8(A)(1) ALLEGEDLY NOT CHARGED OR LITIGATED BEFORE
THE BOARD.  THE ARGUMENT IS THAT RESPONDENT PARTICIPATED IN THE
PROCEEDINGS UPON THE PREMISE THAT THE ISSUE FOR DECISION WAS WHETHER
RESPONDENT HAD DECIDED UPON DISCIPLINE PRIOR TO THE INTERVIEW, SO AS TO
CONSTITUTE THE INTERVIEW DISCIPLINARY AND NOT INVESTIGATORY IN NATURE,
AND HAD NO PRIOR NOTICE THAT, INSTEAD OF DECIDING THAT QUESTION, THE
BOARD'S DECISION WOULD TURN UPON A FINDING THAT THE EMPLOYEE HAD
"REASONABLE GROUNDS TO FEAR . . . DISCIPLINE" AT THE INTERVIEW.  BUT
RESPONDENT FAILED TO FILE A PETITION FOR RECONSIDERATION AS PERMITTED
BY BOARD RULES AND REGULATIONS 102.48(D)(1), 29 CFR 102.48(D)(1), THAT
PROVIDES THAT ANY MATERIAL ERROR IN THE BOARD'S DECISION MAY BE
ASSERTED THROUGH A MOTION FOR "RECONSIDERATION, REHEARING, OR REOPENING
OF THE RECORD."  RESPONDENT, THEREFORE CANNOT ASSERT ITS OBJECTION ON
APPEAL "UNLESS THE FAILURE OR NEGLECT TO URGE SUCH OBJECTION SHALL BE
EXCUSED BECAUSE OF EXTRAORDINARY CIRCUMSTANCES."  29 U.S.C. 160(E). 
RESPONDENT DID NOT SUGGEST ANY "EXTRAORDINARY CIRCUMSTANCES" IN EITHER
THE COURT OF APPEALS OR IN THIS COURT.  THE OBJECTION THEREFORE MAY NOT
BE CONSIDERED.  NLRB V. MINE WORKERS, 355 U.S. 453, 463 - 464 (1958);
GLAZIERS' LOCAL NO. 558 V. NLRB, 132 U.S.APP.D.C. 394, 399 - 400, 408
F.2D 197, 202 - 203 (1969). 

(FOR DISSENTING OPINION OF MR. CHIEF JUSTICE BURGER, SEE ANTE, P.
268.) 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE STEWART JOINS, 

DISSENTING. 

FOR THE REASONS STATED IN MY DISSENT IN NLRB V. WEINGARTEN, INC.,
ANTE, P. 269, I DISSENT. 

BERNARD DUNAU ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE MAX ZIMNY, BERNARD RUBENSTEIN, AND BERNARD P. JEWELER. 

JOHN E. JENKINS, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT QUALITY MANUFACTURING CO.  SOLICITOR GENERAL BORK, PETER G.
NASH, JOHN S. IRVING, PATRICK HARDIN, NORTON J. COME, AND LINDA SHER
FILED A BRIEF FOR RESPONDENT NATIONAL LABOR RELATIONS BOARD. 

JERRY KRONENBERG AND MILTON SMITH FILED A BRIEF FOR THE CHAMBER OF
COMMERCE OF THE UNITED STATES AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :
























LEFKOWITZ V. NEWSOME, 420 U.S. 283 


       LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK V. NEWSOME

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 73 - 1627.  ARGUED DECEMBER 11, 1974--DECIDED FEBRUARY

19, 1975; 492 F.2D 1166, AFFIRMED. 


    WHEN STAE LAW PERMITS A DEFENDANT TO PLEAD GUILTY WITHOUT

  FORFEITING HIS RIGHT TO JUDICIAL REVIEW OF SPECIFIED

  CONSTITUTIONAL ISSUES, SUCH AS THE LAWFULNESS OF A SEARCH OR THE

  VOLUNTARINESS OF A CONFESSION, THE DEFENDANT IS NOT FORECLOSED

  FROM PURSUING THOSE CONSTITUTIONAL CLAIMS IN A FEDERAL HABEAS

  CORPUS PROCEEDING.  PP. 288 - 293. 

     (A) THUS, HERE WHERE A NEW YORK STATUTE PERMITTED AN APPEAL

  FROM AN ADVERSE DECISION ON A MOTION TO SUPPRESS EVIDENCE

  ALLEGEDLY OBTAINED AS A RESULT OF UNLAWFUL SEARCH AND SEIZURE

  THOUGH THE CONVICTION WAS BASED ON A GUILTY PLEA, RESPONDENT, WHO

  HAD BEEN CONVICTED IN STATE COURT ON A GUILTY PLEA TO A DRUG

  CHARGE AND WHO HAD UNSUCCESSFULLY PRESENTED TO THE STATE COURTS

  ON DIRECT APPEAL HIS FEDERAL CONSTITUTIONAL CLAIM THAT EVIDENCE

  SEIZED INCIDENT TO AN UNLAWFUL ARREST SHOULD HAVE BEEN

  SUPPRESSED, WAS NOT PRECLUDED FROM RAISING SUCH CLAIM IN A

  FEDERAL HABEAS CORPUS PROCEEDING.  PP. 288 - 292. 

     (B) TO HOLD OTHERWISE NOT ONLY WOULD DEPRIVE RESPONDENT OF A

  FEDERAL FORUM DESPITE HIS HAVING SATISFIED ALL THE REQUIREMENTS

  FOR INVOKING FEDERAL HABEAS CORPUS JURISIDICTION, BUT WOULD ALSO

  FRUSTRATE THE STATE'S POLICY IN PROVIDING FOR POST-GUILTY PLEA

  APPELLATE REVIEW OF PRETRIAL MOTIONS TO SUPPRESS.  PP. 292 -

  293. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, MARSHALL, AND BLACKMUN, JJ., JOINED.  WHITE,

  J., POST, P. 294, AND POWELL, J., POST, P. 302 FILED DISSENTING

  OPINIONS, IN WHICH BURGER, C. J., AND RENHQUIST, J., JOINED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT LEON NEWSOME WAS ARRESTED PURSUANT TO N.Y. PENAL LAW
240.35(6) FOR LOITERING IN THE LOBBY OF A NEW YORK CITY HOUSING
AUTHORITY APARTMENT BUILDING.  A SEARCH OF NEWSOME CONDUCTED AT THE
TIME OF HIS ARREST PRODUCED A SMALL QUANTITY OF HEROIN AND RELATED
NARCOTICS PARAPHERNALIA.  CONSEQUENTLY, IN ADDITION TO THE OFFENSE OF
LOITERING, HE WAS ALSO CHARGED WITH POSSESSION OF A DANGEROUS DRUG,
FOURTH DEGREE, N.Y. PENAL LAW 220.05 (NOW CODIFIED, AS MODIFIED, AS
N.Y. PENAL LAW 220.03), AND CRIMINALLY POSSESSING A HYPODERMIC
INSTRUMENT.  N.Y. PENAL LAW 220.45. 

THE NEW YORK CITY CRIMINAL COURT CONDUCTED A NON-JURY TRIAL ON THE
LOITERING CHARGE AND A HEARING ON NEWSOME'S MOTION TO SUPPRESS THE
EVIDENCE SEIZED AT THE TIME OF HIS ARREST.  NEWSOME ARGUED THAT THE
ARRESTING OFFICER DID NOT HAVE PROBABLE CAUSE FOR THE LOITERING ARREST,
THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A LOITERING CONVICTION,
AND THAT THE LOITERING STATUTE WAS UNCONSTITUTIONAL AND THEREFORE COULD
NOT SERVE AS THE BASIS FOR EITHER A LOITERING CONVICTION OR A LAWFUL
SEARCH INCIDENT TO ARREST.  THE COURT REJECTED THESE ARGUMENTS, FOUND
NEWSOME GUILTY OF LOITERING, AND DENIED THE MOTION TO SUPPRESS. 

ONE MONTH LATER, ON THE DATE SCHEDULED FOR TRIAL ON THE DRUG
CHARGES, NEWSOME WITHDREW HIS PRIOR PLEAS OF NOT GUILTY AND PLEADED
GUILTY TO THE LESSER CHARGE OF ATTEMPTED POSSESSION OF DANGEROUS
DRUGS.  N.Y. PENAL LAW 110.  HE WAS IMMEDIATELY SENTENCED TO 90 DAYS'
IMPRISONMENT ON THE ATTEMPTED-POSSESSION CONVICTION AND RECEIVED AN
UNCONDITIONAL RELEASE ON THE LOITERING CONVICTION. 

AT THE SENTENCING PROCEEDING NEWSOME INDICATED HIS INTENTION TO
APPEAL BOTH THE LOITERING COVICTION AND THE DENIAL OF HIS MOTION TO
SUPPRESS THE DRUGS AND RELATED PARAPHERNALIA SEIZED AT THE TIME OF HIS
ARREST.  APPEAL OF THE ADVERSE DECISION ON THE MOTION TO SUPPRESS WAS
AUTHORIZED BY N.Y. CODE CRIM. PROC. 813 - C (NOW RECODIFIED AS N.Y.
CRIM. PROC. LAW 710.20(1), 710.7(2)), WHICH PROVIDED THAT AN ORDER
DENYING A MOTION TO SUPPRESS EVIDENCE ALLEGED TO HAVE BEEN OBTAINED AS
A RESULT OF UNLAWFUL SEARCH AND SEIZURE "MAY BE REVIEWED ON APPEAL FROM
A JUDGMENT OF CONVICTION NOTWITHSTANDING THE FACT THAT SUCH JUDGMENT OF
CONVICTION IS PREDICATED UPON A PLEA OF GUILTY."  /1/ 

ON DIRECT APPEAL TO THE APPELLATE TERM OF THE NEW YORK SUPREME
COURT, THE LOITERING CONVICTION WAS REVERSED FOR INSUFFICIENT EVIDENCE
AND A DEFECTIVE INFORMATION.  BECAUSE THE COURT HELD THAT THERE WAS
PROBABLE CAUSE TO ARREST NEWSOME FOR LOITERING, HOWEVER, THE SEARCH
INCIDENT TO THAT ARREST WAS UPHELD AND THE DRUG CONVICTION AFFIRMED. 
NEWSOME SOUGHT FURTHER REVIEW OF THE DRUG CONVICTION, BUT LEAVE TO
APPEAL TO THE NEW YORK COURT OF APPEALS WAS DENIED.  THIS COURT DENIED
A PETITION FOR A WRIT OF CERTIORARI.  NEWSOME V. NEW YORK, 405 U.S.
908. 

NEWSOME THEN FILED A PEITION FOR A WRIT OF HABEAS CORPUS IN THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK.  THE PETITION
REITERATED THE CLAIM THAT SHE LOITERING STATUTE WAS UNCONSTITUTIONAL,
AT NEWSOME'S ARREST WAS THEREFORE INVALID, AND THAT AS A RESULT THE
EVIDENCE SEIZED INCIDENT TO THAT ARREST SHOULD HAVE BEEN SUPPRESSED. 
PRIOR TO THE DISTRICT COURT'S DECISION ON THE MERITS OF NEWSOME'S
PETITION, /2/ THE NEWYORK COURT OF APPEALS DECLARED NEW YORK'S
LOITERING STATUTE UNCONSTITUTIONAL.  PEOPLE V. BERCK, 32 N.Y.2D 567,
300 N.E.2D 411.  IN LIGHT OF THE BERCK DECISION, THE DISTRICT COURT
GRANTED NEWSOME'S APPLICATION FOR A WRIT OF HABEAS CORPUS. 

THE PETITIONER, THE ATTORNEY GENERAL OF NEW YORK, WHO HAD BEEN
GRANTED LEAVE BY THE DISTRICT COURT TO INTERVENE AS A RESPONDENT IN THE
HABEAS CORPUS PROCEEDING, APPEALED.  THE COURT OF APPEALS FOR THE
SECOND CIRCUIT AFFIRMED THE JUDGMENT OF THE DISTRICT COURT, UNITED
STATES EX REL. NEWSOME V. MALCOLM, 492 F.2D 1166, ADHERING TO ITS
EARLIER RULINGS THAT A NEW YORK DEFENDANT WHO HAS UTILIZED STATE
PROCEDURES TO APPEAL THE DENIAL OF A MOTION TO SUPPRESS MAY PURSUE HIS
CONSTITUTIONAL CLAIM ON A FEDERAL HABEAS CORPUS PETITION ALTHOUGH THE
CONVICTION WAS BASED ON A PLEA OF GUILTY.  ID., AT 1169 - 1171.  THE
COURT HELD THAT NEW YORK'S LOITERING STATUTE VIOLATED DUE PROCESS
BECAUSE IT FAILED TO SPECIFY ADEQUATELY THE CONDUCT IT PROSCRIBED AND
FAILED TO PROVIDE SUFFICIENTLY CLEAR GUIDANCE FOR POLICE, PROSECUTORS,
AND THE COURTS SO THAT THEY COULD ENFORCE THE STATUTE IN A MANNER
CONSISTENT WITH THE CONSTITUTIONAL REQUIREMENT THAT ARRESTS BE BASED ON
PROBABLE CAUSE.  ID., AT 1171 - 1174.  ACCORDINGLY, THE COURT HELD THAT
BECAUSE NEWSOME WAS SEARCHED INCIDENT TO AN ARREST FOR THE VIOLATION OF
A STATUTE FOUND TO BE UNCONSTITUTIONAL ON THE GROUND THAT IT
SUBSTITUTED MERE SUSPICION FOR PROBABLE CAUSE AS THE BASIS FOR ARREST,
THE SEARCH OF NEWSOME WAS ALSO CONSTITUTIONALLY INVALID.  THE COURT
CONCLUDED THAT THE EVIDNCE SEIZED SHOULD HAVE BEEN SUPPRESSED AND
AFFIRMED THE DISTRICT COURT'S JUDGMENT GRANTING THE WRIT OF HABEAS
CORPUS.  ID., AT 1174 - 1175. 

THE ATTORNEY GENERAL OF NEW YORK SOUGHT REVIEW HERE OF BOTH THE
COURT OF APPEALS' DECISION THAT NEWSOME HAD NOT WAIVED HIS RIGHT TO
FILE A FEDERAL HABEAS CORPUS PETITION BY PLEADING GUILTY AND ITS
DECISION AS TO THE CONSTITUTIONALITY OF NEW YORK'S LOITERING STATUTE. 
BECAUSE OF A CONFLICT BETWEEN THE JUDGMENT IN THE PRESENT CASE AND A
DECISION OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT, CIRCUIT, /3/ WE
GRANTED CERTIORARI LIMITED TO THE QUESTION OF A DEFENDANT'S RIGHT TO
FILE A FEDERAL HABEAS CORPUS PETITION CHALLENGING THE LAWFULNESS OF A
SEARCH OR THE VOLUNTARINESS OF A CONFESSION OR PRESENTING OTHER
CONSTITUTIONAL CLAIMS WHEN A STATE PROVIDES FOR APPELLATE REVIEW OF
THOSE ISSUES AFTER A GUILTY PLEA.  417 U.S. 967.  /4/

        I 

IN CONTENDING THAT NEWSOME IS PRECLUDED FROM RAISING HIS
CONSTITUTIONAL CLAIMS IN THIS FEDERAL HABEAS CORPUS PROCEEDING, THE
PETITIONER RELIES PRIMARILY ON THIS COURT'S DECISIONS IN THE GUILTY
PLEA TRILOGY OF BRADY V. UNITED STATES, 397 U.S. 742, MCMANN V.
RICHARDSON, 397 U.S. 759, AND PARKER V. NORTH CAROLINA, 397 U.S. 790,
AND ON OUR DECISION IN TOLLETT V. HENDERSON, 411 U.S. 258.  THE BRADY
TRILOGY ANNOUNCED THE GENERAL RULE THAT A GUILTY PLEA, INTELLIGENTLY
AND VOLUNTARILY MADE, BARS THE LATER ASSERTION OF CONSTITUTIONAL
CHALLENGES TO THE PRETRIAL PROCEEDINGS.  THIS PRINCIPLE WAS REAFFIRMED
IN TOLLETT V. HENDERSON, SUPRA, AT 267: "WHEN A CRIMINAL DEFENDANT HAS
SOLEMNLY ADMITTED IN OPEN COURT THAT HE IS IN FACT GUILTY OF THE
OFFENSE WITH WHICH HE IS CHARGED, HE MAY NOT THEREAFTER RAISE
INDEPENDENT CLAIMS RELATING TO THE DEPRIVATION OF CONSTITUTIONAL RIGHTS
THAT OCCURRED PRIOR TO THE ENTRY OF THE GUILTY PLEA." 

BUT THE COURT ALSO SUGGESTED IN THE BRADY TRILOGY THAT AN EXCEPTION
TO THIS GENERAL RULE MIGHT BE PROPER WHEN A STATE DECIDES TO PERMIT A
DEFENDANT TO APPEAL FROM AN ADVERSE RULING IN A PRETRIAL HEARING
DESPITE THE FACT THAT HIS CONVICTION IS BASED ON A GUILTY PLEA.  SEE
MCMANN V. RICHARDSON, SUPRA, AT 766, AND NO. 11, 770 N. 13.  /5/ THE
JUSTIFICATION FOR SUCH AN EXCEPTION LIES IN THE SPECIAL NATURE OF THE
GUILTY PLEA OF A NEW YORK DEFENDANT LIKE NEWSOME. 

IN MOST STATES A DEFENDANT MUST PLEAD NOT GUILTY AND GO TO TRIAL TO
PRESERVE THE OPPORTUNITY FOR STATE APPELLATE REVIEW OF HIS
CONSTITUTIONAL CHALLENGES TO ARREST, ADMISSIBILITY OF VARIOUS PIECES OF
EVIDENCE, OR THE VOLUNTARINESS OF A CONFESSION.  A DEFENDANT WHO
CHAOOSES TO PLEAD GUILTY RATHER THAN GO TO TRIAL IN EFFECT DELIBERATELY
REFUSES TO PRESENT HIS FEDERAL CLAIMS TO THE STATE COURT IN THE FIRST
INSTANCE.  MCMANN V. RICHARDSON, SUPRA, AT 768.  ONCE THE DEFENDANT
CHOOSES TO BYPASS THE ORDERLY PROCEDURE FOR LITIGATING HIS
CONSTITUTIONAL CLAIMS IN ORDER TO TAKE THE BENEFITS, IF ANY, OF A PLEA
OF GUILTY, THE STATE ACQUIRES A LEGITIMATE EXPECTATION OF FINALITY IN
THE CONVICTION THEREBY OBTAINED.  CF. FAY V. NOIA, 372 U.S. 391, 438. 
IT IS IN THIS SENSE, THEREFORE, THAT ORDINARILY "A GUILTY PLEA
REPRESENTS A BREAK IN THE CHAIN OF EVENTS" WITH REGARD TO CERTAIN TYPES
OF CONSTITUTIONAL CLAIMS RAISED IN PRETRIAL PROCEEDINGS.  FOR A NEW
YORK DEFENDANT WHOSE BASIC DEFENSE CONSISTS OF ONE OF THOSE
CONSTITUTIONAL CLAIMS AND WHO HAS ALREADY LOST A PRETRIAL MOTION TO
SUPPRESS BASED ON THAT CLAIM, THERE IS NO PRACTICAL DIFFERENCE IN TERMS
OF APPELLATE REVIEW BETWEEN GOING TO TRIAL AND PLEADING GUILTY.  IN
NEITHER EVENT DOES THE STATE ASSERT ANY CLAIM OF FINALITY BECAUSE OF
THE JUDGMENT OF CONVICTION.  IN EITHER EVENT UNDER NEW YORK PROCEDURE
THE DEFENDANT HAS AVAILABLE THE FULL RANGE OF STATE APPELLATE REVIEW OF
HIS CONSTITUTIONAL CLAIMS.  AS TO THOSE CLAIMS, THEREFORE, THERE IS NO
"BREAK" AT ALL IN THE USUAL STATE PROCEDURE FOR ADJUDICATING
CONSTITUTIONAL ISSUES.  THE GUILTY PLEA OPERATES SIMPLY AS A PROCEDURE
BY WHICH THE CONSTITUTIONAL ISSUES CAN BE LITIGATED WITHOUT THE
NECESSITY OF GOING THROUGH THE TIME AND EFFORT OF CONDUCTING A TRIAL,
THE RESULT OF WHICH IS FOREORDAINED IF THE CONSTITUTIONAL CLAIM IS
INVALID.  THE PLEA IS ENTERED WITH THE CLEAR UNDERSTANDING AND
EXPECTATION BY THE STATE, THE DEFENDANT, AND THE COURTS THAT IT WILL
NOT FORECLOSE JUDICIAL REVIEW OF THE MERITS OF THE ALLEGED
CONSTITUTIONAL VIOLATIONS.  /6/ 

IN SUM, ALTHOUGH TERMED BY THE NEW YORK CRIMINAL PROCEDURE LAW A
"GUILTY PLEA," THE SAME LABEL GIVEN TO THE PLEAS ENTERED BY THE
DEFENDANTS IN THE BRADY TRILOGY OF CASES AND TOLLETT V. HENDERSON,
NEWSOME'S PLEA HAD LEGAL CONSEQUENCES QUITE DIFFERENT FROM THE
CONSEQUENCES OF THE PLEAS ENTERED IN TRADITIONAL GUILTY-PLEA CASES. 
FAR FROM PRECLUDING REVIEW OF INDEPENDENT CLAIMS RELATING TO THE
DEPRIVATION OF CONSTITUTIONAL RIGHTS THAT OCCURRED PRIOR TO THE ENTRY
OF HIS "GUILTY PLEA," NEWSOME'S PLEA CARRIED WITH IT THE GUARANTEE THAT
JUDICIAL REVIEW OF HIS CONSTITUTIONAL CLAIMS WOULD CONTINUE TO BE
AVAILABLE TO HIM.  IN THIS RESPECT THERE IS NO MEANINGFUL DIFFERENCE
BETWEEN NEWSOME'S CONVICTION AND A NEW YORK CONVICTION ENTERED AFTER A
TRIAL.  /7/ 

BECAUSE OF THE ENTIRELY DIFFERENT EXPECTATIONS SURROUNDING NEWSOME'S
PLEA AND THE COMPLETELY DIFFERENT LEGAL CONSEQUENCES FLOWING FROM IT,
EARLIER GUILTY-PLEA CASES HOLDING THAT "(THE FOCUS OF FEDERAL HABEAS
INQUIRY IS THE NATURE OF THE ADVICE (OF COUNSEL) AND THE VOLUNTARINESS
OF THE PLEA, NOT THE EXISTENCE OF SUCH OF AN ANTECEDENT CONSTITUTIONAL
INFIRMITY," TOLLETT V. HENDERSON, SUPRA, AT 266, ARE SIMPLY
INAPPOSITE.  NEWSOME HAS SATISFIED ALL THE PREREQUISITES FOR INVOKING
THE HABEAS CORPUS JURISDICTION OF THE FEDERAL COURTS.  /8/ HE IS NO
LESS ENTITLED TO FEDERAL REVIEW OF HIS CONSTITUTIONAL CLAIM THAN IS ANY
OTHER DEFENDANT WHO RAISES HIS CLAIM IN A TIMELY FASHION, IN ACCORDANCE
WITH STATE PROCEDURE, AND WHO PURSUES HIS CLAIM THROUGH ALL AVAILABLE
LEVELS OF STATE APPELLATE REVIEW.  /9/

        II 

DENYING NEWSOME THE RIGHT TO FILE A FEDERAL HABEAS CORPUS PETITION
RAISING HIS CLAIM OF AN UNCONSTITUTIONAL SEIZURE WOULD NOT ONLY DEPRIVE
HIM OF A FEDERAL FORUM DESPITE THE FACT THAT HE HAS SATISFIED ALL THE
REQUIREMENTS FOR INVOKING FEDERAL HABEAS CORPUS JURISIDCTION, IT WOULD
ALSO FRUSTRATE THE STATE'S POLICY IN PROVIDING FOR POST-GUILTY PLEA
APPELLATE REVIEW OF PRETRIAL MOTIONS TO SUPPRESS. 

MANY DEFENDANTS RECOGNIZE THAT THEY CANNOT PREVAIL AT TRIAL UNLESS
THEY SUCCEED IN SUPPRESSING EITHER EVIDENCE SEIZED BY THE POLICE OR AN
ALLEGEDLY INVOLUNTARY CONFESSION.  SUCH DEFENDANTS IN STATES WITH THE
GENERALLY PREVAILING RULE OF FINALITY OF GUILTY PLEAS WILL OFTEN INSIST
ON PROCEEDING TO TRIAL FOR THE SOLEPURPOSE OF PRESERVING THEIR CLAIMS
OF ILLEGAL SEIZURES OR INVOLUNTARY CONFESSIONS FOR POTENTIAL
VINDICATION ON DIRECT APPELLATE REVIEW OR IN COLLATERAL PROCEEDINGS. 
RECOGNIZING THE COMPLETELY UNNECESSARY WASTE OF TIME AND ENERGY
CONSUMED IN SUCH TRIALS.  NEW YORK HAS CHOSEN TO DISCOURAGE THEM BY
CREATING A PROCEDURE WHICH PERMITS A DEFENDANT TO OBTAIN APPELLATE
REVIEW OF CERTAIN PRETRIAL CONSTITUTIONAL CLAIMS WITHOUT IMPOSING ON
THE STATE THE BURDEN OF GOING TO TRIAL. 

TO DENY FEDERAL HABEAS CORPUS RELIEF TO THOSE IN NEWSOME'S POSITION
WOULD MAKE NEW YORK'S LAW A TRAP FOR THE UNWARY.  /10/ ON THE OTHER
HAND, IT IS SAFE TO PREDICT THAT THOSE NEW YORK DEFENDANTS WHO KNEW
THAT FEDERAL HABEAS CORPUS WOULD BE FORECLOSED WOULD AGAIN BE DISUADED
FROM PLEADING GUILTY AND INSTEAD WOULD INSIST ON A TRIAL SOLELY TO
PRESERVE THE RIGHT TO AN ULTIMATE FEDERAL FORUM IN WHICH TO LITIGATE
THEIR CONSTITUTIONAL CLAIMS.  SUCH A RESULT WOULD EVISCERATE NEW YORK'S
COMMENDABLE EFFORTS TO RELIEVE THE PROBLEM OF CONGESTED CRIMINAL TRIAL
CALENDARS IN A MANNER THAT DOES NOT DIMINISH THE OPPORTUNITY FOR THE
ASSERTION OF RIGHTS GUARANTEED BY THE CONSTITUTION.  /11/ 

ACCORDINLY, WE HOLD THAT WHEN STATE LAW PERMITS A DEFENDANT TO PLEAD
GUILTY WITHOUT FORFEITING HIS RIGHT TO JUDICIAL REVIEW OF SPECIFIED
CONSTITUTIONAL ISSUES, THE DEFENDANT IS NOT FORECLOSED FROM PURSUING
THOSE CONSTITUTIONAL CLAIMS IN A FEDERAL HABEAS CORPUS PROCEEDING.  THE
JUDGMENT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IS AFFIRMED. 

                                  IT IS SO ORDERED.     /1/ SECTION
813 - C WAS DIRECTED TO THE RIGHT TO APPEAL AN ADVERSE RULING ON A
CLAIM OF AN UNLAWFUL SEARCH AND SEIZURE AFTER A PLEA OF GUILTY.  N.Y.
CODE CRIM. PROC. 813 - G, RECODIFIED AS N.Y. CRIM. PROC. LAW 710.20(3),
710.70(2), PERMITTED SIMILAR APPEALS FROM DENIALS OF MOTIONS TO
SUPPRESS ALLEGEDLY COERCED CONFESSIONS.  SEE MCMANN V. RICHARDSON, 397
U.S. 759, 766 N. 11.  NEW YORK NOW ALSO PROVIDES BY STATUTE FOR POST
GUILTY PLEA APPEALS FROM DENIALS OF MOTIONS TO SUPPRESS IDENTIFICATION
TESTIMONY CLAIMED TO BE TAINTED BY IMPROPER PRETRIAL IDENTIFICATIONS. 
N.Y. CRIM. PROC. LAW 710.20(5), 710.70(2). 

/2/ THE DISTRICT COURT INITIALLY DISMISSED THE PETITION BECAUSE
NEWSOME, WHO HAD BEEN RELEASED ON BAIL PENDING FINAL DISPOSITION OF HIS
CASE, WAS NOT "IN CUSTODY" AS REQUIRED BY 28 U.S.C. 2241.  NEWSOME
APPEALED THE DISMISSAL, AND, IN LIGHT OF THIS COURT'S HOLDING ON THE
CUSTODY QUESTION IN HENSLEY V. MUNICIPAL COURT, 411 U.S. 345, THE COURT
OF APPEALS FOR THE SECOND CIRCUIT REMANDED THE CASE TO THE DISTRICT
COURT FOR A DECISION ON THE MERITS. 

/3/ CALIFORNIA, LIKE NEW YORK, PERMITS A DEFENDANT TO APPEAL SPECIFIED
ADVERSE PRETRIAL RULINGS EVEN THOUGH HE SUBSEQUENTLY PLEADS GUILTY. 
CAL. PENAL CODE 1538.5(M).  UNLIKE THE COURT OF APPEALS FOR THE SECOND
CIRCUIT, HOWEVER, THE COURT OF APPEALS FOR THE NINTH CIRCUIT BY A
DIVIDED VOTE HELD THAT SUCH A DEFENDANT MAY NOT PURSUE HIS
CONSTITUTIONAL CLAIM ON A FEDERAL HABEAS CORPUS PETITION.  MANN V.
SMITH, 488 F.2D 245, 247. 

/4/ CERTIORARI WAS GRANTED LIMITED TO QUESTION 1 IN ATTORNEY GENERAL
LEFKOWITZ' PETITION:  "DOES A STATE DEFENDANT'S PLEA OF GUILTY WAIVE
FEDERAL HABEAS CORPUS REVIEW OF HIS CONVICTION, EVEN THOUGH UNDER STATE
LAW, HE HAS BEEN PERMITTED REVIEW IN THE STATE APPELLATE COURTS OF THE
DENIAL OF HIS MOTION, ON CONSTITUTIONAL GROUNDS, TO SUPPRESS THE
EVIDENCE THAT WOULD HAVE BEEN OFFERED AGAINST HIM HAD THERE BEEN A
TRIAL?"  417 U.S. 967. 

/5/ SINCE THE GUILTY PLEAS IN MCMANN V. RICHARDSON, 397 U.S. 759,
WERE ENTERED PRIOR TO THE EFFECTIVE DATE OF NEW YORK'S STATUTORY SCHEME
PERMITTING A DEFENDANT PLEADING GUILTY TO CHALLENGE ON APPEAL THE
ADMISSIBILITY OF EVIDENCE ALLEGEDLY SEIZED IMPROPERLY OR OF AN
ALLEGEDLY COERCED CONFESSION, THE COURT IN MCMANN EXPRESSLY RESERVED
RULING ON THE QUESTION PRESENTED BY THE JUDGMENT NOW BEFORE US.  ID.,
AT 770 N. 13.  THAT EXPRESS RESERVATION UNQUESTIONABLY BELIES THE
ARGUMENT ADVANCED IN THE DISSENTING OPINION OF MR. JUSTICE WHITE, POST,
AT 297 - 298, THAT THE QUESTION BEFORE US WAS ANSWERED IN PARKER V.
NORTH CAROLINA, 397 U.S. 790, A CASE DECIDED TOGETHER WITH MCMANN. 

/6/ THE PETITIONER CONCEDES THAT THIS REVIEW ULTIMATELY INCLUDES THE
CERTIORARI OR APPELLATE JURISDICTION OF THIS COURT.  INDEED, IN SIBRON
V. NEW YORK, 392 U.S. 40, WE REVERSED A STATE COURT CONVICTION ON THE
GROUND THAT THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE
BEEN GRANTED, NOTWITHSTANDING THE FACT THAT THE APPELLANT HAD PLEADED
GUILTY AND PURSUED HIS APPEAL UNDER 813 - C. SEE ID., AT 45 N. 2.  IF
NEWSOME'S GUILTY PLEA IS NOT A SUFFICIENT "BREAK IN THE CHAIN OF EVENTS
(THAT) PRECEDED IT" TO PREVENT REVIEW OF HIS CONSTITUTIONAL CLAIMS IN
THIS COURT, THEN A FORTIORI THE PLEA CANNOT RATIONALLY FORECLOSE RESORT
TO FEDERAL HABEAS RELIEF.  FOR EVEN WHEN STATE PROCEDURAL GROUNDS ARE
ADEQUATE TO BAR DIRECT REVIEW OF A CONVICTION IN THIS COURT, FEDERAL
HABEAS CORPUS RELIEF IS NONETHELESS AVAILABLE TO LITIGATE THE
DEFENDANT'S CONSTITUTIONAL CLAIMS UNLESS THERE HAS BEEN A DELIBERATE
BYPASS OF THE STATE PROCEDURES.  SEE FAY V. NOIA, 372 U.S. 391, 428 -
431. 

/7/ NEW YORK COULD EASILY HAVE PROVIDED THAT, RATHER THAN PLEADING
"GUILTY," A DEFENDANT WHO INTENDS TO APPEAL HIS PRETRIAL CLAIM OF AN
INVOLUNTARY CONFESSION OR AN UNLAWFUL SEIZURE BUT HAS NO DESIRE TO
IMPOSE UPON THE STATE THE BURDEN OF GOING TO TRIAL SHOULD PLEAD "NOT
GUILTY" AND AT THE SAME TIME STIPULATE TO ALL THE EVIDENCE THE STATE
CAN INTRODUCE TO PROVE HIS GUILT.  UPON THE INEVITABLE ENTRY OF A
JUDGMENT OF CONVICTION BASED ON THE STIPULATION, THE DEFENDANT WOULD
THEN BE ABLE TO PURSUE HIS STATE APPELLATE REMEDIES.  AND, PRESUMABLY,
BECAUSE THERE WOULD THEN BE NO "SOLEMN ADMISSION OF GUILTY," ALL WOULD
CONCEDE THAT THE DEFENDANT WOULD NOT BE FORECLOSED FROM PURSUING THOSE
CONSTITUTIONAL CLAIMS IN A FEDERAL HABEAS CORPUS PROCEEDING.  BUT THE
ONLY DIFFERENCE BETWEEN SUCH A PROCEDURE AND THE ONE NEW YORK HAS
CHOSEN IS THAT THE PLEA ENTERED IS LABELED AP PLEA OF "NOT GUILTY"
RATHER THAN "GUILTY" AND THERE IS A STIPULATION BY THE DEFENDANT AS TO
THE FACTS THE STATE WOULD PROVE DEMONSTRATING HIS GUILT RATHER THAN A
RECITATION BY THE DEFENDANT IN COURT.  THE AVAILABILITY OF FEDERAL
HABEAS CORPUS DEPENDS UPON FUNCTIONAL REALITY, NOT UPON AN INFATUATION
WITH LABELS.  SEE FAY V. NOIA, SUPRA. 

/8/ NEWSOME IS "IN CUSTODY" WITH THE MEANING OF 28 U.S.C. 2241.  SEE
N. 2, SUPRA.  HIS PETITION FOR A WRIT OF HABEAS CORPUS ALLEGED THAT
THIS CUSTODY WAS IN VIOLATION OF THE LAWS OF THE UNITED STATES. 
2241(C)(3).  AND HE HAS SATISFIED THE EXHAUSTION REQUIREMENT OF 28
U.S.C. 2254 BY PRESENTING HIS FEDERAL CLAIMS TO THE STATE COURTS ON
DIRECT APPEAL.  SEE FRANCISCO V. GATHRIGHT, 419 U.S. 59. 

/9/ IN FAY V. NOIA, SUPRA, THE COURT HELD THAT A FEDERAL HABEAS
JUDGE MAY DENY RELIEF TO AN APPLICANT WHO HAS DELIBERATELY BYPASSED THE
ORDERLY STATE COURT PROCEDURES FOR REVIEWING HIS CONSTITUTIONAL CLAIM. 
372 U.S., AT 438.  BUT THE COURT ALSO HELD THAT IF THE STATE COURTS
HAVE ENTERTAINED THE FEDERAL CONSTITUTIONAL CLAIMS ON THE MERITS IN A
SUBSEQUENT PROCEEDING, NOTWITHSTANDING THE DELIBERATE BYPASS, THE
FEDERAL COURTS HAVE NO DISCRETION TO DENY THE APPLICANT HABEAS RELIEF
TO WHICH HE IS OTHERWISE ENTITLED.  ID., AT 439.  IT WOULD SEEM TO
FOLLOW NECESSARILY THAT WHEN THERE IS NO BYPASS OF STATE APPELLATE
PROCEDURES, DELIBERATE OR OTHERWISE, AND THE STATE COURTS ENTERTAINED
THE FEDERAL CLAIMS ON THE MERITS, A FEDERAL HABEAS CORPUS COURT MUST
ALSO DETERMINE THE MERITS OF THE APPLICANT'S CLAIM. 

/10/ AT THE TIME NEWSOME PLEADED GUILTY THE COURT OF APPEALS FOR THE
SECOND CIRCUIT HAD REPEATEDLY HELD THAT A NEW YORK DEFENDANT WHO HAS
UTILIZED 813 - C IN THE STATE COURTS MAY PURSUE HIS CONSTITUTIONAL
CLAIM ON A FEDERAL HABEAS CORPUS PETITION.  E.G., UNITED STATES EX REL.
ROGERS V. WARDEN, 381 F.2D 209; UNITED STATES EX REL. MOLLOY V.
FOLLETTE, 391 F.2D 231. 

/11/ THE UNIFORM RULES OF CRIMINAL PROCEDURE WOULD CREATE AN EVEN
BROADER RIGHT OF APPEAL THAN IS CURRENTLY PROVIDED FOR IN NEW YORK,
PERMITTING POST-GUILTY PLEA APPEAL OF ANY ORDER DENYING A PRETRIAL
MOTION WHICH, IF GRANTED, WOULD BE DISPOSITIVE OF THE CASE.  UNIFORM
RULE CRIM. PROC. 444(D). 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

BECAUSE I BELIEVE THAT FEDERAL LAW PROVIDES RESPONDENT NEWSOME NO
RIGHT TO SET ASIDE HIS PLEA OF GUILTY--A SOLEMN, COUNSELED ADMISSION IN
OPEN COURT THAT HE IS IN FACT GUILTY--EVEN ASSUMING THAT HE HAD
PREVIOUSLY BEEN THE VICTIM OF A SEARCH WHICH DID NOT MEASURE UP TO
FEDERAL STANDARDS, I RESPECTFULLY DISSENT. 

        I 

THE FEDERAL HABEAS CORPUS STATUTE, PURSUANT TO WHICH NEWSOME SOUGHT
TO HAVE THE COURTS BELOW SET ASIDE HIS PLEA OF GUILTY, PROVIDES RELIEF
ONLY IF THE PETITIONER CAN ESTABLISH THAT "HE IS IN CUSTODY IN
VIOLATION OF THE CONSTITUTION OR LAWS OR TREATIES OF THE UNITED
STATES."  28 U.S.C. 2254(A).  IT IS COMMON GROUND, I TAKE IT, THAT THE
FEDERAL CONSTITUTION DOESNOT ITSELF ENTITLE A DEFENDANT WHO HAS PLEADED
GUILTY TO HAVE THAT PLEA SET ASIDE UPON A SHOWING THAT HE HAS
PREVIOUSLY BEEN THE VICTIM OF AN UNCONSTITUTIONAL SEARCH, EVEN IF HE
CAN ALSO SHOW THAT HE PLEADED GUILTY ONLY BECAUSE THE PROSECUTION
PLANNED TO USE THE FRUITS OF THE SEARCH AGAINST HIM AT TRIAL.  /1/
BLACKLEDGE V. PERRY, 417 U.S. 21 (1974); TOLLETT V. HENDERSON, 411 U.S.
258 (1973); BRADY V. UNITED STATES, 397 U.S. 742 (1970); MCMANN V.
RICHARDSON, 397 U.S. 759 (1970); PARKER V. NORTH CAROLINA, 397 U.S. 790
(1970).  IN TOLLETT, WE SAID: 

     "WE THUS REAFFIRM THE PRINCIPLE RECOGNIZED IN THE BRADY

  TRILOGY:  A GUILTY PLEA REPRESENTS A BREAK IN THE CHAIN OF EVENTS

  WHICH HAS PRECEDED IT IN THE CRIMINAL PROCESS.  WHEN A CRIMINAL

  DEFENDANT HAS SOLEMNLY ADMITTED IN OPEN COURT THAT HE IS IN FACT

  GUILTY OF THE OFFENSE WITH WHICH HE IS CHARGED, HE MAY NOT

  THEREAFTER RAISE INDEPENDENT CLAIMS RELATING TO THE DEPRIVATION

  OF CONSTITUTIONAL RIGHTS THAT OCCURRED PRIOR TO THE ENTRY OF THE

  GUILTY PLEA.  HE MAY ONLY ATTACK THE VOLUNTARY AND INTELLIGENT

  CHARACTER OF THE GUILTY PLEA BY SHOWING THAT THE ADVICE HE

  RECEIVED FROM COUNSEL WAS NOT WITHIN THE STANDARDS SET FORTH IN

MCMANN."  411 U.S.,AT 267.  (EMPHASIS ADDED.) 

THIS "PRINCIPLE" IS A RULE OF SUBSTANTIVE CONSTITUTIONAL LAW
LIMITING THE FEDERAL CONSTITUIONAL GROUNDS OF GUILT.  IT IS NOT, AS THE
MAJORITY ASSUMES, ANTE, AT 289, A RULE OF PROCEDURE, DISENTITLING A
DEFENDANT TO RAISE A FOURTH AMENDMENT CLAIM WHICH WAS NOT PROPERLY
"PRESERVED" UNDER STATE LAW.  IF IT WERE SUCH A RULE OF PROCEDURE, BOTH
MCMANN AND TOLLETT WOULD HAVE COME OUT DIFFERENTLY:  BOTH WERE FEDERAL
HABEAS CORPUS PROCEEDINGS; AS THE MAJORITY POINTS OUT, ANTE, AT 290 N.
6, FEDERAL ISSUES ARE "PRESERVED" FOR HABEAS CORPUS PURPOSES UNLESS
STATE PROCEDURES FOR LITIGATING THEM HAVE BEEN "DELIBERATELY BYPASSED";
AND NEITHER THE PETITIONER IN MCMANN NOR THE PETITIONER IN TOLLETT HAD
"DELIBERATELY BYPASSED" STATE PROCEDURES FOR RAISING THE COERCED
CONFESSION OR GRAND JURY DISCRIMINATION CLAIMS THERE INVOLVED.  /2/
INDEED, THE ENTIRE MAJORITY OPINION RESTS ON THE ERRONEOUS NOTION THAT
WE REFUSED TO HEAR ANTECEDENT CONSTITUTIONAL CLAIMS IN MCMANN AND
TOLLETT BECAUSE THE DEFENDANTS HAD "BYPASSED" THOSE CLAIMS BY PLEADING
GUILTY.  IN FACT, THOSE DECISIONS WERE BASED ON THE SUBSTANTIVE
PROPOSITION THAT THE DEFENDANT'S GUILT IN THOSE CASES, AND THE STATE'S
CONSEQUENT ABSOLUTE RIGHT TO INCARCERATE THEM, WAS ESTABLISHED BY THEIR
VOLUNTARY AND INTELLIGENT PLEAS OF GUILTY.  /3/ 

THE QUESTION RAISED IN THIS CASE, THEREFORE, IS WHETHER, IF A STATE
CHOOSES TO OPEN ITS APPELLATE COURTS TO HEAR CLAIMS OF CONSTITUTIONAL
DEPRIVATIONS PRECEDING ENTRY OF A GUILTY PLEA AND TO SET ASIDE THE PLEA
IF THE ANTECEDENT VIOLATION IS ESTABLISHED, THE STATE THEREBY CREATES A
FEDERAL CONSTITUTIONAL RIGHT TO SET ASIDE THE GUILTY PLEA WHERE NONE
WOULD HAVE EXISTED OTHERWISE.  THE QUESTION ALMOST ANSWERS ITSELF. 
MORE IMPORTANTLY, HOWEVER, IT HAS ALREADY BEEN ANSWERED BY THIS COURT
IN PARKER V. NORTH CAROLINA, SUPRA. 

IN PARKER, THE DEFENDANT SOUGHT TO SET ASIDE HIS GUILTY PLEA IN A
STATE HABEAS CORPUS PROCEEDING ALLEGING, INTER ALIA, THAT A CONFESSION
HAD BEEN UNCONSTITUTIONALLY COERCED FROM HIM AND THAT HE PLEADED GUILTY
ONLY BECAUSE OF THE CONFESSION.  THE STATE TRIAL COURT HELD A HEARING
ON THE MERITS OF THE COERCED-CONFESSION CLAIM AND FOUND BOTH THE
CONFESSION AND THE SUBSEQUENT PLEA TO HAVE BEEN VOLUNTARY.  ON APPEAL,
THE NORTH CAROLINA COURT OF APPEALS CLEARLY ACCEPTED THE PROPOSITION
THAT PARKER'S PLEA SHOULD BE SET ASIDE IF THE CONFESSION WAS
INVOLUNTARY, AND IF IT WAS THE BUT-FOR CAUSE OF THE PLEA.  PARKER V.
STATE, 2 N.C.APP.  27, 32, 162 S.E.2D 526, 529.  IT CONCLUDED, HOWEVER,
THAT PARKER'S CONFESSION WAS VOLUNTARY AND HIS PLEA NOT THE PRODUCT OF
IT.  ON CERTIORARI, WE DID NOT FEEL COMPELLED--BY THE FACT THAT NORTH
CAROLINA GAVE PARKER A RIGHT TO SET ASIDE HIS PLEA IF IT WAS BASED UPON
A CONFESSION COERCED IN VIOLATION OF FEDERAL STANDARDS--TO GIVE HIM A
SIMILAR RIGHT.  INSTEAD, ASSUMING THAT THE CONFESSION WAS INADMISSIBLE
AND THAT HE PLEADED GUILTY IN THE CONTRARY BELIEF, WE HELD THAT PARKER
WAS NOT ENTITLED "TO DISAVOW HIS ADMISSION IN OPEN COURT THAT HE
COMMITTED THE OFFENSE WITH WHICH HE WAS CHARGED."  397 U.S.,AT 797. 
/4/ LIKE NEWSOME IN NEW YORK, A DEFENDANT WHO LOSES A PRETRIAL
SUPPRESSION MOTION IN NORTH CAROLINA AND THEN PLEADS GUILTY MAY ASSUME,
BY READING THE NORTH CAROLINA COURT OF APPEALS OPINION IN PARKER V.
STATE, SUPRA, THAT STATE APPELLATE COURTS WILL HEAR THE MERITS OF HIS
CLAIM (IN A STATE HABEAS CORPUS PROCEEDING, IF HE CAN ESTABLISH THAT
HIS GUILTY PLEA WAS ENTERED BECAUSE THE SUPPRESSION MOTION WAS
DENIED).  HOWEVER, OUR DECISION IN PARKER WOULD PRECLUDE ANY CLAIM THAT
THIS COURT OR ANY FEDERAL COURT WOULD DO LIKEWISE.  SIMILARLY, HERE,
NEWSOME'S GUILTY HAS BEEN ESTABLISHED BY AS RELIABLE A METHOD AS IT
KNOWN TO THE CRIMINAL LAW--HIS SOLEMN ADMISSION OF GUILT, MADE IN OPEN
COURT.  THE FEDERAL CONSTITUTION ENTITLES HIM TO SET ASIDE THAT PLEA
ONLY UPON A SHOWING THAT IT WAS INVOLUNTARY OR UNINTELLIGENT.  THE FACT
THAT NEW YORK STATE HAS NONETHELESS CHOSEN TO SET ASIDE HIS CONVICTION
UPON A SHOWING THAT HE WAS THE VICTIM OF A PREVIOUS ILLEGAL SEIZURE
DOES NOT AND CANNOT ALTER SUBSTANTIVE FEDERAL CONSTITUTIONAL LAW.  /5/

        II 

THE MAJORITY CONTENDS, HOWEVER, THAT SINCE STATE LAW PROVIDES A
DEFENDANT WITH A "GUARANTEE" THAT HE MAY PLEAD GUILTY AND STILL
LITIGATE HIS FOURTH AMENDMENT CLAIM, IT CANNOT POSSIBLY BE SAID THAT HE
HAS CHOSEN TO BYPASS THAT CLAIM BY PLEADING GUILTY.  MOREOVER, THE
MAJORITY ASSERTS THAT THE NEW YORK GUILTY PLEA INVOLVED HERE IS A
"GUILTY PLEA" IN NAME ONLY, AND IS SOMETHING ELSE IN REALITY IN LIGHT
OF THE "DIFFERENT EXPECTATIONS" SURROUNDING IT AND THE DIFFERENT
EXPECTATIONS" SURROUNDING IT AND THE DIFFERENT "LEGAL CONSEQUENCES"
FLOWING FROM IT.  THERE ARE TWO THINGS WRONG WITH THESE CONTENTIONS. 

FIRST, THE CONTENTIONS ASSUME THAT THE BRADY TRILOGY WAS BASED UPON
NOTIONS OF WAIVER.  IN OTHER WORDS, IT ASSUMES THAT HIS COURT HAS IN
THE PAST REFUSED TO SET ASIDE "GUILTY PLEAS" ON THE BASIS OF ANTECEDENT
VIOLATIONS OF CONSTITUTIONAL RIGHTS ONLY BECAUSE THE PLEA WAS DEEMED TO
HAVE "WAIVED"  THOSE RIGHTS.  THIS ASSUMPTION FINDS SOME SUPPORT IN THE
LANGUAGE OF THOSE CASES, BUT WAIVER WAS NOT THEIR BASIC INGREDIENT.  IN
ANY EVENT, THE COURT SQUARELY AND CONCLUSIVELY REJECTED THE WAIVER
RATIONALE IN TOLLETT V. HENDERSON, SUPRA.  WE SAID THERE:     "IF THE
ISSUE WERE TO BE CAST SOLELY IN TERMS OF 'WAIVER,' THE COURT OF APPEALS
WAS UNDOUBTEDLY CORRECT IN CONCLUDING THAT THERE HAD BEEN NO SUCH
WAIVER HERE."  411 U.S.,AT 266.  NONETHELESS, THE COURT OF APPEALS'
DECISION IN TOLLETT WAS REVERSED.  UNDER TOLLETT'S INTERPRETATION OF
THE TRILOGY, AND UNDER TOLLETT ITSELF, FEDERAL CONSTITUTIONAL
PRINCIPLES SIMPLY PRECLUDE THE SETTING ASIDE OF A STATE CONVICTION BY A
FEDERAL COURT WHERE THE DEFENDANT'S GUILT HAS BEEN CONCLUSIVELY
ESTABLISHED BY A VOLUNTARY AND INTELLIGENT PLEA OF GUILTY.  LABELS
ASIDE, A GUILTY PLEA FOR FEDERAL PURPOSES IS A JUDICIAL ADMISSION OF
GUILT CONCLUSIVELY ESTABLISHING A DEFENDANT'S FACTUAL GUILT.  NEWSOME'S
PLEA PLAINLY QUALIFIES.  /6/ 

SECOND, THE CONTENTIONS ASSUME THAT NEW YORK STATE INTENDED TO
CREATE THE EXPECTATION AND HAS THE POWER TO CREATE THE EXPECTATION ON
THE PART OF DEFENDANTS WHO PLEAD GUILTY THAT THEY WILL BE ABLE TO
LITIGATE THEIR ANTECEDENT FOURTH AMENDMENT CLAIMS NOT ONLY IN STATE
COURTS, BUT ALSO IN FEDERAL COURTS.  THERE IS ABSOLUTELY NO REASON TO
SUPPOSE THAT NEW YORK INTENDED, IT WOULD HAVE BEEN ACTING PLAINLY
BEYOND ITS POWER.  NEW YORK STATE MAY, OF COURSE, GIVE ITS DEFENDANTS
AS A MATTER OF STATE LAW THE RIGHT TO SET ASIDE GUILTY PLEAS ON THE
BASIS OF ANTECEDENT VIOLATIONS OF FEDERAL CONSTITUTIONAL SEARCH
STANDARDS.  IF THEY DO, IT CANNOT BE SAID THAT A DEFENDANT WHO PLEADS
GUILTY HAS "WAIVED" THAT STATE LAW RIGHT.  BUT, IT IS FOR CONGRESS OR
THIS COURT TO DECIDE WHETHER FEDERAL LAW GIVES A DEFENDANT THE RIGHT TO
SET ASIDE HIS PLEA UNDER SUCH CIRCUMSTANCES.  THE "LEGAL CIRCUMSTANCES"
IN FEDERAL COURTS WHICH WILL FLOW FROM A STATE PLEA, AND THE
"EXPECTATIONS" WHICH A DEFENDANT SHOULD HAVE ABOUT WHAT WILL OCCUR IN
FEDERAL COURTS FOLLOWING THE PLEA ARE NOT MATTERS TO BE DECIDED BY THE
NEW YORK LEGISLATURE AND SURELY NOT FINALLY BY THE COURT OF APPEALS FOR
THE SECOND CIRCUIT.  IF THIS COURT HAD FOLLOWED ITS PRIOR DECISIONS AND
REITERATED IN THE PRESENT CONTEXT THAT NEWSOME MAY NOT LITIGATE HIS
FOURTH AMENDMENT CLAIM IN FEDERAL COURT, THEN ONCE THOSE WHO COUNSEL
DEFENDANTS IN THE NEW YORK COURT SYSTEM READ THE OPINION, IT WOULD BE
INCONTESTABLE THAT A GUILTY PLEA IN NEW YORK WOULD FORECLOSE FEDERAL
HABEAS CORPUS RELIEF BASED ON ALREADY REJECTED FOURTH AMENDMENT CLAIMS
AND THAT NO DEFENDANT MIGHT LEGITIMATELY HARBOR "EXPECTATIONS" TO THE
CONTRARY.  /7/ 

THUS, EVEN UNDER A WAIVER THEORY, COUNSELED DEFENDANTS WAIVE ALL
RIGHTS BY PLEADING GUILTY, WHICH THE APPLICABLE LAW SAYS THEY WAIVE;
AND, SINCE THE APPLICABLE LAW IN THIS CASE IS FEDERAL, IT IS FOR US,
AND NOT THE NEW YORK STATE LEGISLATURE, TO SAY WHETHER FOURTH AMENDMENT
CLAIMS SUCH AS THOSE INVOLVED HERE WILL OR WILL NOT BE WAIVED BY A
GUILTY PLEA.  TO ILLUSTRATE, SUPPOSE INSTEAD OF PASSING THE STATUTE
INVOLVED HERE NEW YORK HAD SOUGHT TO ACHIEVE SUBSTANTIALLY THE SAME
RESULT BY PERMITTING PRETRIAL APPEALS FROM DENIALS OF SUPPRESSION
MOTIONS IN ALL CASES IN WHICH THE TRIAL JUDGE CERTIFIED THAT THE SEIZED
EVIDENCE WAS LIKELY TO BE DETERMINATIVE OF THE OUTCOME OF THE TRIAL. 
SUPPOSE FURTHER THAT A DEFENDANT AVAILS HIMSELF OF THIS OPPORTUNITY,
LOSES ON THE MERITS OF HIS FOURTH AMENDMENT CLAIM IN THE HIGHEST STATE
COURT, AND SUBSEQUENTLY PLEADS GUILTY.  SUPPOSE, FINALLY, THE STATE
PASSED A SECOND STATUTE PERMITTING A DEFENDANT WHO PLEADS GUILTY UNDER
THE CIRCUMSTANCES JUST DESCRIBED TO APPEAL HIS CONVICTION DIRECTLY TO
THIS COURT OR TO BRING DIRECTLY A FEDERAL HABEAS CORPUS PROCEEDING
ATTACKING THE CONSTITUTIONALITY OF THE SEARCH--THE STATUTE EXPRESSLY
STATING THAT THE FOURTH AMENDMENT RIGHT IS DEEMED NOT WAIVED BY THE
PLEA OF GUILTY.  THE SECOND STATUTE WOULD, OBVIOUSLY, BE OF NO EFFECT
WHATEVER, SINCE IT WOULD BE A PLAIN EFFORT BY THE STATE TO LEGISLATE
FEDERAL LAW.  HOWEVER, SO FAR AS THE FEDERAL COURTS ARE CONCERNED, THE
HYPOTHESIZED STATUTE IS THE FUNCTIONAL EQUIVALENT OF THE STATUTE AT
ISSUE IN THIS CASE AS CONSTRUED AND EFFECTUATED BY THE MAJORITY.  THE
ONLY DIFFERENCE IS THAT, IN THE CASE OF THE REAL STATUTE, THE STATE
APPEALS FOLLOW THE PLEA RATHER THAN PRECEDE IT. 

FINALLY, THE MAJORITY ARGUES THAT A CONTRARY DECISION BY THIS COURT
WOULD INTERFERE WITH THE STATE'S POLICY OF AVOIDING UNNECESSARY TRIALS
BY PERMITTING APPEALS FROM GUILTY PLEAS.  NEW YORK, WHOSE POLICY THIS
COURT IS SEEKING TO FURTHER, HAS APPEARED HERE THROUGH ITS ATTORNEY
GENERAL AND ARGUED PRECISELY TO THE CONTRARY.  OBVIOUSLY NEW YORK
BELIEVES THAT ITS POLICY IS ADEQUATELY SERVED BY THE STATE APPEALS. 
THERE IS NO REASON FOR THE COURT TO DECIDE THE CASE ONE WAY FOR NEW
YORK'S BENEFIT, WHEN NEW YORK IS ARGUING STRENUOUSLY THAT WE SHOULD
DECIDE THE CASE THE OTHER WAY. 

/1/ INDEED, NOT ONLY DOES THE UNITED STATES CONSTITUTION GRANT NO
SUCH ENTITLEMENT, BUT THE FEDERAL COURTS HAVE FOR THE MOST PART REFUSED
TO CREATE SUCH AN ENTITLEMENT IN THE EXERCISE OF THEIR SUPERVISORY
POWERS OVER THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL
SYSTEM.  SEE UNITED STATES V. SEPE, 474 F.2D 784 (CA5 1973), AFF'D EN
BANC, 486 F.2D 1044; UNITED STATES V. COX, 464 F.2D 937 (CA6 1972);
UNITED STATES V. MIZELL, 488 F.2D 97 (CA5 1973), AND CASES THERE
CITED.  BUT SEE UNITED STATES V. DOYLE, 348 F.2D 715, 519 (CA2), CERT.
DENIED, 382 U.S. 843 (1965). 

/2/ MCMANN WAS A CASE INVOLVING A COERCED-CONFESSION CLAIM IN WHICH
THE PLEA WAS ENTERED BEFORE JACKSON V. DENNO, 378 U.S. 368 (1964), AND
THEREFORE AT A TIME WHEN THE DEFENDANT BELIEVED THE JURY WOULD HEAR HIS
CONFESSION REGARDLESS.  TOLLETT INVOLVED A GUILTY PLEA ENTERED IN
IGNORANCE OF THE FACTS UNDERLYING THE DEFENDANT'S LATER ATTACK ON THE
GRAND JURY. 

/3/ IT IS TRUE THAT FOURTH AMENDMENT CLAIMS ARE NEVER ATTACKS ON THE
ACCURACY OF THE FINDING OF FACTUAL GUILT, LINKLETTER V. WALKER, 381
U.S. 618 (1965).  UNDER OUR LEGAL SYSTEM, REVERSAL OF A CONVICTION ON
FOURTH AMENDMENT GROUNDS IS PERFECTLY CONSISTENT WITH A RECOGNITION
THAT THE DEFENDANT IS, IN FACT, GUILTY.  THUS, IT MAY BE ARGUED THAT,
UNLIKE SOME OTHER CLAIMS, FOURTH AMENDMENT CLAIMS ARE NOT UNDERCUT BY A
GUILTY PLEA IN WHICH GUILT IS SOLENMLY ADMITTED.  THE SHORT ANSWER TO
THIS ARGUMENT IS THAT IT APPLIES AS WELL IN THE CASE OF STATES WHICH DO
NOT PERMIT APPEALS FROM GUILTY PLEAS AS IN THE CASE OF THOSE WHICH DO,
AND THE ARGUMENT HAS THEREFORE ALREADY BEEN REJECTED.  TOLLETT V.
HENDERSON, 411 U.S. 258 (1973); BRADY V. UNITED STATES, 397 U.S. 742
(1970); MCMANN V. RICHARDSON, 397 U.S. 759 (1970); PARKER V. NORTH
CAROLINA, 297 U.S. 790 (1970); UNITED STATES V. SEPE, SURPA.  MORE TO
THE POINT, THE DETERRENT PURPOSE OF THE EXCLUSIONARY RULE SHOULD BE
FURTHERED AT THE LOWEST POSSIBLE COST TO SOCIETY IN TERMS OF FREEING
THE GUILTY.  BY PRECLUDING DEFENDANTS WHO PLEAD GUILTY FROM LITIGATING
FOURTH AMENDMENT ISSUES, WE DO NOT SERIOUSLY DETRACT FROM THE DETERRENT
PURPOSE OF THE RULE (A POLICEMAN ABOUT TO IMPROPERLY INVADE SOMEONE'S
PRIVACY CAN HARDLY RELY UPON THE ERRONEOUS PRETRAIL DENIAL OF A
SUPPRESSION MOTION BY A TRIAL JUDGE AND THE DEFENDANT'S MISTAKEN
DECISION TO PLEAD GUILTY) AND WE AVOID UNNECESSARILY FREEING THE
GUILTY. 

/4/ WE DID HOLD THAT A PLEA ENTERED UPON ADVICE OF COUNSEL WITH
REGARD TO THE ADMISSIBILITY OF THE CONFESSION, WHICH ADVICE WAS NOT
"WITHIN THE RANGE OF COMPETENCE REQUIRED OF ATTORNEYS REPRESENTING
DEFENDANTS IN CRIMINAL CASES," 397 U.S.,AT 797 - 798, WOULD WARRANT
VACATION OF THE PLEA ON SIXTH AMENDMENT GROUNDS. 

/5/ SEBRON V. NEW YORK, 392 U.S. 40 (1968), IN WHICH WE HARD A
FOURTH AMENDMENT CLAIM ON DIRECT APPEAL AFTER A GUILY PLEA WAS DECIDED
BEFORE THE COURT CREATED THE RELEVANT CONSTITUTIONAL RULE IN THE BRADY
TRILOGY; AND IN SIBRON THE COURT NEVER ADDRESSED THE QUESTION WHETHER
THE FEDERAL CONSTITUTION ENTITLED THE DEFENDANT TO SET ASIDE HIS GUILTY
PLEA UPON ESTABLISHING THE ANTECEDENT FOURTH AMENDMENT VIOLATION. 

/6/ THE MAJORITY ARGUES THAT NEWSOME WOULD HAVE HAD A RIGHT TO SET
ASIDE HIS CONVICTION ON THE BASIS OF A FOURTH AMENDMENT CLAIM IF HE HAD
PLEADED NOT GUILTY AND PERMITTED HIS ATTORNEY TO STIPULATE THAT, IF
CALLED, CERTAIN GOVERNMENT WITNESSES WOULD TESTIFY TO CERTAIN FACTS,
AND INTRODUCE CERTAIN EXHIBITS, AMONG THEM THE ALLEGEDLY ILLEGALLY
SEIZED EVIDENCE; AND THAT, THEREFORE, HE SHOULD BE PERMITTED TO SET
ASIDE HIS FUNCTIONALLY EQUIVALENT PLEA OF GUILTY ON THE BASIS OF THE
SAME FOURTH AMENDMENT CLAIM.  THE PREMISE IS CORRECT; THE CONCLUSION IS
NOT.  IN THE FIRST PLACE, IF THE CONCLUSION WERE CORRECT, IT SHOULD
APPLY EQUALLY TO STATES WHICH DO NOT PERMIT APPEALS FROM GUILTY PLEAS. 
AS OUR DECISIONS IN THE BRADY TRILOGY AND TOLLETT ESTABLISH, HOWEVER,
GUILTY PLEAS IN THOSE STATES ARE NOT INFIRM ON THE BASIS OF ANTECEDENT
CONSTITUTIONAL VIOLATIONS, EVEN THOUGH CONVICTIONS IN UNCONTESTED
TRIALS ARE.  THE MAJORITY OFFERS NO REASON BY THIS DISTINCTION SHOULD
BE IGNORED FOR FEDERAL PURPOSES JUST BECAUSE NEW YORK IGNORES IT FOR
STATE PURPOSES.  MOREOVER, A CONVICTION BASED UPON THE DEFENDANT'S
SOLEMN ADMISSION OF FACTUAL GUILT IS NOT THE FUNCTIONAL EQUIVALENT OF A
CONVICTION ON UNCONTESTED EVIDENCE.  IN THE LATTER CASE, THE CONVICTION
IS NOT BASED ON THE DEFENDANT'S ADMISSION BUT ON THE EVIDENCE:  THE
TRIAL JUDGE MAY ALWAYS ACQUIT, IF UNPERSUADED, AND AN APPELLATE COURT
MAY FIND THE ILLEGALLY SEIZED EVIDENCE NOT TO HAVE CONTRIBUTED TO THE
VERDICT.  SEE DISCUSSION OF THE DIFFERENCES FOR APPEAL PURPOSES BETWEEN
A PLEA OF GUILTY AND A STIPULATION TO EVIDENCE IN UNITED STATES V.
MIZELL, 488 F.2D,AT 99 - 101 (GUILTY PLEA NOT APPEALABLE), AND UNITED
STATES V. MENDOZA, 491 F.2D 534, 536 - 538 (CA5 1974) (CONVICTION ON
STIPULATED EVIDENCE APPEALABLE).  SEE ALSO UNITED STATES V. COX, 464
F.2D,AT 944 - 945. 

/7/ BECAUSE OF THE POSSIBILITY THAT PRIOR SECOND CIRCUIT LAW, E.G.,
UNITED STATES EX REL. ROGERS V. WARDEN, 381 F.2D 209 (1967), AND UNITED
STATES EX REL. MOLLOY V. FOLLETTE, 391 F.2D 231 (1968), AFFIRMATIVELY
MISLED RESPONDENT'S LAWYER INTO BELIEVING THAT FEDERAL LAW DOES PERMIT
COLLATERAL RELITIGATION OF THE ANTECEDENT FOURTH AMENDMENT VIOLATION
AFTER A NEW YORK GUILTY PLEA, THE BEST COURSE WOULD HAVE BEEN TO PERMIT
ALL THOSE, INCLUDING NEWSOME, WHO PLEADED GUILTY BEFORE THE DATE OF
THIS DECISION IN RELIANCE ON SECOND CIRCUIT LAW TO REPLEAD.  UNITED
STATES V. MIZELL, SUPRA, AT 101.  CF. SANTOBELLO V. NEW YORK, 404 U.S.
257 (1971). 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS FOR THE REASONS
SET FORTH IN MY CONCURRING OPINION IN SCHNECKLOTH V. BUSTAMONTE, 412
U.S. 218, 250 (1973).  THIS CASE IS EVEN MORE INAPPROPRIATE FOR FEDERAL
COLLATERAL REVIEW OF A STATE PRISONER'S FOURTH AMENDMENT CLAIM.  THE
PRISONER HERE, WITH ADVISE OF COUNSEL, PLEADED GUILTY IN OPEN COURT. 
HE DOES NOT QUESTION THE VOLUNTARINESS OF HIS PLEA NOR DOES HE ASSERT
INNOCENCE.  RATHER, HE ARGUES THAT HIS CONVICTION IS REVIEWABLE IN
FEDERAL HABEAS CORPUS BECAUSE OF AN UNCOMMON NEW YORK STATUTE WHICH
ALLOWS APPEAL FROM AN ADVERSE SUPPRESSION RULING NOTWITHSTANDING THE
GUILTY PLEA. 

YET THE COURT TODAY HOLDS THAT RESPONDENT IS ENTITLED TO SEEK
FEDERAL HABEAS CORPUS RELIEF.  THIS RULING DISTORTS BEYOND RECOGNITION
THE WRIT OF HABEAS CORPUS.  THE HISTORIC AND HONORED PURPOSE OF HABEAS
CORPUS, AND INDEED ITS ONLY JUSTIFICATION, IS TO PROVIDE THE ADDED
ASSURANCE TO A FREE SOCIETY THAT NO INNOCENT PERSON WILL SUFFER AN
UNCONSTITUTIONAL DEPRIVATION OF LIBERTY.  THE GREAT WRIT WAS NOT
DESIGNED AS A MEANS FOR FREEING PERSONS WHO HAVE VOLUNTARILY CONFESSED
GUILTY UNDER PROCEDURES COMPORTING WITH DUE PROCESS OF LAW. 

APART FROM MY VIEWS AS TO THE INAPPROPRIATENESS OF FEDERAL HABEAS
CORPUS REVIEW OF FOURTH AMENDMENT CLAIMS DULY ADJUDICATED BY STATE
COURTS, BUSTAMONTE, SUPRA, I ALSO AGREE WITH MR. JUSTICE WHITE'S
DISSENT, ANTE, P. 294.  AS FEDERAL LAW IS INVOKED BY RESPONDENT, HIS
GUILTY PLEA IS DETERMINATIVE UNDER TOLLETT V. HENDERSON, 411 U.S. 258
(1973). 

ROBERT S. HAMMER, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ, FIRST ASSITANT ATTORNEY
GENERAL, AND IRVING GALT, ASSISTANT ATTORNEY GENERAL. 

STANLEY NEUSTADTER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS WILLIAM E. HELLERSTEIN. 
..END :



UTAH V. UNITED STATES, 420 U.S. 304 


       UTAH V. UNITED STATES

        ON EXCEPTIONS TO SPECIAL MASTER'S REPORT

        NO. 31, ORIG.  ARGUED DECEMBER 17, 1974--DECIDED FEBRUARY

           19, 1975. 


    IN THIS DISPUTE BETWEEN UTAH AND THE UNITED STATES OVER CERTAIN

  WATERS AND SHORELANDS OF THE GREAT SALT LAKE, THE UNITED STATES

  EXCEPTIONS TO THE SPECIAL MASTER'S REPORT ARE OVERRULED, AND THE

  PROPOSED DECREE, EXCEPT AS MODIFIED BY AGREEMENT OF THE PARTIES,

  IS ADOPTED AND ENTERED. 

PER CURIAM AND DECREE 

WE HEARD ORAL ARGUMENT UPON THE EXCEPTIONS TO THE REPORT OF THE
SPECIAL MASTER FILED BY THE UNITED STATES.  419 U.S. 814 (1974).  WE
OVERRULE THE EXCEPTIONS AND ADOPT, AND DIRECT THE ENTRY OF, THE DECREE
PROPOSED BY THE SPECIAL MASTER EXCEPT THAT, AS AGREED BY THE PARTIES,
PARAGRAPH NO. 1 OF THE PROPOSED DECREE IS MODIFIED IN FORM BY REVISING
THE PHRASING OF THE OPENING PARAGRAPH TO READ AS FOLLOWS: 

"1.  SUBJECT TO ANY FEDERAL REGULATORY AUTHORITY THAT MAY

  EXTEND TO THE GREAT SALT LAKE OR ITS SHORELANDS, THE UNITED

  STATES OF AMERICA, ITS DEPARTMENTS AND AGENCIES, ARE ENJOINED

  FROM ASSERTING AGAINST THE STATE OF UTAH ANY CLAIM OF RIGHT,

  TITLE AND INTEREST:" 

FURTHER, FINDING OF FACT NO. 10 IS ADJUSTED, AS AGREED BY THE
PARTIES, BY INSERTING 4200.8 IN LIEU OF 4200.2, AND BY INSERTING
396,000 IN LIEU OF 325,000. 

FOR THE PURPOSE OF GIVING EFFECT TO THE ABOVE, THE FOLLOWING DECREE
IS HEREBY ENTERED. 

IT IS ORDERED, ADJUDGED, AND DECREED THAT: 

     "1.  SUBJECT TO ANY FEDERAL REGULATORY AUTHORITY THAT MAY

  EXTEND TO THE GREAT SALT LAKE OR ITS SHORELANDS, THE UNITED

  STATES OF AMERICA, ITS DEPARTMENTS AND AGENCIES, ARE ENJOINED

  FROM ASSERTING AGAINST THE STATE OF UTAH ANY CLAIM OF RIGHT,

  TITLE AND INTEREST: 

     "(A) TO ANY OF THE EXPOSED SHORELANDS SITUATED BETWEEN THE
EDGE

  OF THE WATERS OF THE GREAT SALT LAKE ON JUNE 15, 1967, AND THE

  BED OF THE LAKE ON JANUARY 4, 1896, WHEN UTAH BECAME A STATE,

  WITH THE EXCEPTION OF ANY LANDS WITHIN THE BEAR RIVER MIGRATORY

  BIRD REFUGE AND THE WEBER BASIN FEDERAL RECLAMATION PROJECT; 

     "(B) TO THE NATURAL RESOURCES AND LIVING ORGANISMS IN OR

  BENEATH ANY OF THE EXPOSED SHORELANDS OF THE GREAT SALT LAKE

DELINEATED IN (A) ABOVE; AND 

     "(C) TO THE NATURAL RESOURCES AND LIVING ORGANISMS EITHER

  WITHIN THE WATERS OF THE GREAT SALT LAKE, OR EXTRACTED THEREFROM,

  AS DELINEATED IN (A) ABOVE. 

     "2.  THE STATE OF UTAH IS NOT REQUIRED TO PAY THE UNITED

  STATES, THROUGH THE SECRETARY OF THE INTERIOR, FOR THE EXPOSED

  SHORELANDS, INCLUDING ANY MINERALS, DELINEATED IN PARAGRAPH 1

  ABOVE OF THIS DECREE. 

     "3.  THERE REMAINS THE QUESTION WHETHER ANY LANDS WITHIN THE

  MEANDER LINE OF THE GREAT SALT LAKE (AS DULY SURVEYED PRIOR TO OR

  IN ACCORDANCE WITH SECTION 1 OF THE ACT OF JUNE 3, 1966, 80 STAT.

  192), AND CONVEYED BY QUITCLAIM DEED TO THE STATE OF UTAH,

  INCLUDED ANY FEDERALLY OWNED UPLANDS ABOVE THE BEDS OF THE LAKE

  ON THE DATE OF STATEHOOD (JANUARY 4, 1896) WHICH THE UNITED

  STATES STILL OWNED PRIOR TO THE CONVEYANCE TO UTAH.  /1/  IN THE

ABSENCE OF AGREEMENT BETWEEN THE PARTIES DISPOSING OF THE ABOVE

  QUESTION OR OF THE NECESSITY FOR FURTHER PROCEEDINGS WITH RESECT

  THERETO, THE SPECIAL MASTER IS DIRECTED TO HOLD SUCH HEARINGS,

  TAKE SUCH EVIDENCE, AND CONDUCT SUCH PROCEEDINGS WITH RESPECT TO

  THAT QUESTION AS HE DEEMS APPROPRIATE AND, IN DUE COURSE, TO

  REPORT HIS RECOMMENDATIONS TO THE COURT. 

     "4.  THE PRAYER OF THE UNITED STATES OF AMERICAN IN ITS ANSWER

  TO THE STATE OF UTAH'S COMPLAINT THAT THIS COURT 'CONFIRM,

  DECLARE AND ESTABLISH THAT THE UNITED STATES IS THE OWNER OF ALL

  RIGHT, TITLE AND INTEREST IN ALL OF THE LANDS DESCRIBED IN

  SECTION 2 OF THE ACT OF JUNE 3, 1966, 80 STAT. 192, AS AMENDED BY

  THE ACT OF AUGUST 23, 1966, 80 STAT. 349, AND THAT THE STATE OF

  UTAH IS WITHOUT ANY RIGHT, TITLE OR INTEREST IN SUCH LANDS, SAVE

  FOR THE RIGHT TO HAVE THESE LANDS CONVEYED TO IT BY THE UNITED

  STATES, AND TO PAY FOR THEM, IN ACCORDANCE WITH THE PROVISIONS OF

  THE ACT OF JUNE 3, 1966, AS AMENDED,' IS DENIED." 

                                  IT IS SO ORDERED. 

/1/ AS APPEARS FROM P. 4 OF THE SPECIAL MASTER'S REPORT THE PARTIES
HAVE RESERVED THEIR POSITION WITH RESPECT TO THIS QUESTION. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

DANNY J. BOGGS ARGUED THE CAUSE FOR THEUNITED STATES ON EXCEPTIONS
TO THE REPORT OF THE SPECIAL MASTER.  WITH HIM ON THE BRIEFS WERE
SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL JOHNSON, AND JOHN E.
LINDSKOLD. 

RICHARD L. DEWSNUP, SPECIAL ASSISTANT ATTORNEY GENERAL OF UTAH,
ARGUED THE CAUSE FOR PLAINTIFF IN SUPPORT OF THE REPORT OF THE SPECIAL
MASTER.  WITH HIM ON THE BRIEF WERE VERNON B. ROMNEY, ATTORNEY GENERAL,
ROBERT B. HANSEN, DEPUTY ATTORNEY GENERAL, DALLIN W. JENSEN AND PUAL E.
REIMANN, ASSISTANT ATTORNEYS GENERAL, AND CLIFFORD L. ASHTON AND EDWARD
W. CLYDE, SPECIAL ASSISTANT ATTORNEYS GENERAL. 
..END :







ROE V. DOE, 420 U.S. 307 


       ROE ET AL. V. DOE

        CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

        NO. 73 - 1446.  ARGUED DECEMBER 18, 1974--DECIDED FEBRUARY

           19, 1975; 33 N.Y.2D 902, 307 N.E.2D 823, CERTIORARI

           DISMISSED AS IMPROVIDENTLY GRANTED. 


PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MARVIN M. KARPATKIN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WAS MICHAEL N. POLLET. 

EPHRAIM S. LONDON ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE FRANKLIN S. BONEM, BONNIE P. WINAWER, AND HELEN L.
BUTTENWIESER. 

IRA M. MILLSTEIN FILED A BRIEF FOR THE ASSOCIATION OF AMERICAN
PUBLISHERS, INC., AS AMICUS CURIAE URGING REVERSAL. 

JOSEPH ONEK FILED A BRIEF FOR THE AMERICAN PSYCHIATRIC ASSN. ET AL.
AS AMICI CURIAE URGING AFFIRMANCE. 
..END :
























TRAIN V. CITY OF NEW YORK, 420 U.S. 35 


       TRAIN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY V.

           CITY OF NEW YORK ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

   DISTRICT OF COLUMBIA CIRCUIT

        NO. 73 - 1377.  ARGUED NOVEMBER 12, 1974--DECIDED FEBRUARY

           18, 1975; 161 U.S.APP.D.C. 114, 494 F.2D 1033,

           AFFIRMED. 


    THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972

  PROVIDE A COMPREHENSIVE PROGRAM FOR CONTROLLING AND ABATING WATER

  POLLUTION.  TITLE II OF THESE AMENDMENTS MAKES AVAILABLE FEDERAL

  FINANCIAL ASSISTANCE FOR MUNICIPAL SEWERS AND SEWAGE TREATMENT

  WORKS.  SECTION 207 OF TITLE II AUTHORIZES THE APPROPRIATION OF

  "NOT TO EXCEED" SPECIFIED AMOUNTS FOR EACH OF THREE FISCAL YEARS,

  AND 205(A) PROVIDES THAT THE "(SUMS AUTHORIZED TO BE APPROPRIATED

PURSUANT TO (207) . . . SHALL BE ALLOTTED BY THE ADMINISTRATOR"

  OF THE ENVIRONMENTAL PROTECTION AGENCY.  THE PRESIDENT DIRECTED

  THE ADMINISTRATOR NOT TO ALLOT AMONG THE STATES 207'S MAXIMUM

  AMOUNTS BUT INSTEAD TO ALLOT NO MORE THAN $2 BILLION OF THE $5

  BILLION AUTHORIZED FOR FISCAL YEAR 1973 AND NO MORE THAN $3

  BILLION OF THE $6 BILLION AUTHORIZED FOR FISCAL YEAR 1974; AND

  THE ADMINISTRATOR COMPLIED WITH THIS DIRECTIVE.  THEREUPON

  RESPONDENT CITY OF NEW YORK BROUGHT THIS CLASS ACTION SEEKING A

  DECLARATORY JUDGMENT THAT THE ADMINISTRATOR WAS OBLIGATED TO

  ALLOT TO THE STATES THE FULL AMOUNTS AUTHORIZED BY 207 FOR FISCAL

  YEARS 1973 AND 1974, AND AN ORDER DIRECTING HIM TO MAKE THOSE

  ALLOTMENTS.  THE DISTRICT COURT GRANTED THE RESPONDENTS' MOTION

  FOR SUMMARY JUDGMENT, AND THE COURT OF APPEALS AFFIRMED, HOLDING

  THAT "THE ACT REQUIRES THE ADMINISTRATOR TO ALLOT THE FULL SUMS

  AUTHORIZED TO BE APPROPRIATED IN 207."  HELD:  THE 1972
AMENDMENTS

  DO NOT PERMIT THE ADMINISTRATOR TO ALLOT TO THE STATES UNDER

  205(A) LESS THAN THE ENTIRE AMOUNTS AUTHORIZED TO BE APPROPRIATED

BY 207.  PP. 42 - 49. 

     (A) THAT 205(A) DIRECTS THE ALLOTMENT OF ONLY "SUMS"--NOT "ALL

  SUMS" AS ORIGINALLY PROVIDED WHEN THE LEGISLATION WENT TO

  CONFERENCE--AND THAT THE CONFERENCE COMMITTEE ADDED THE "NOT TO

  EXCEED" QUALIFYING LANGUAGE TO 207, WHICH AUTHORIZED THE

  APPROPRIATION OF SPECIFIC AMOU TS FOR THE THREE FISCAL YEARS,

  SHOW NO CONGRESSIONAL INTENTION OF GIVING THE EXECUTIVE

  DISCRETIONARY CONTROL OVER THE RATE OF ALLOTMENTS UNDER THE TITLE

 II PROGRAMS.  THE "NOT TO EXCEED" QUALIFYING LANGUAGE IN 207 HAS

  MEANING OF ITS OWN, APART FROM 205(A), AND REFLECTS THE REALISTIC

  POSSIBILITY THAT APPROVED APPLICATIONS FOR GRANTS FROM FUNDS

  ALREADY ALLOTTED WOULD NOT TOTAL THE MAXIMUM AMOUNT AUTHORIZED TO

  BE APPROPRIATED.  AND THE WORD "SUMS" HAS NO DIFFERENT MEANING

  AND CAN BE ASCRIBED NO DIFFERENT FUNCTION IN THE CONTEXT OF

  205(A) THAN WOULD THE WORDS "ALL SUMS."  PP. 42 - 46. 

     (B) THE MODIFIED POSITION TAKEN BY PETITIONER IN THIS COURT

  THAT 205(A) AND 207 MERELY GIVE THE ADMINISTRATOR DISCRETION AS

TO THE TIMING OF EXPENDITURES, NOT AS TO THE ULTIMATE AMOUNTS TO

  BE ALLOTTED AND OBLIGATED, AS WAS URGED IN THE LOWER COURTS, DOES

  NOT ALTER THIS COURT'S CONCLUSION.  THE ADMINISTRATOR'S POWER TO

  ALLOT UNDER 205(A) EXTENDS ONLY TO "SUMS" AUTHORIZED TO BE

  APPROPRIATED UNDER 207, SINCE, EVEN ASSUMING SOME SORT OF POWER

  IN THE EXECUTIVE TO CONTROL OUTLAYS UNDER THE ACT, THE

  LEGISLATIVE HISTORY INDICATES THAT THE POWER TO CONTROL WAS TO BE

  EXERCISED AT THE OBLIGATION PHASE, RATHER THAN THE ALLOTMENT

  STAGE, OF THE PROCESS.  PP. 46 - 49. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

  C. J., AND BRENNAN, STEWART, MARSHALL, BLECKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., CONCURRED IN THE RESULT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE POSES CERTAIN QUESTIONS CONCERNING THE PROPER CONSTRUCTION
OF THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, 86 STAT.
816, 33 U.S.C. 1251 ET SEQ. (1970 ED.,SUPP.  II) (1972 ACT), WHICH
PROVIDE A COMPREHENSIVE PROGRAM FOR CONTROLLING AND ABATING WATER
POLLUTION.  SECTION 2 OF THE 1972 ACT, 86 STAT. 833, IN ADDING TITLE
II, 201 - 212, TO THE FEDERAL WATER POLLUTION CONTROL ACT, 62 STAT.
1155, 33 U.S.C. 1281 - 1292, /1/ MAKES AVAILABLE FEDERAL FINANCIAL
ASSISTANCE IN THE AMOUNT OF 75% OF THE COST OF MUNICIPAL SEWERS AND
SEWAGE TREATMENT WORKS.  UNDER 207, THERE IS "AUTHORIZED TO BE
APPROPRIATED" FOR THESE PURPOSES "NOT TO EXCEED" $5 BILLION FOR FISCAL
YEAR 1973, "NOT TO EXCEED" $6 BILLION FOR FISCAL YEAR 1974, AND "NOT TO
EXCEED" $7 BILLION FOR FISCAL YEAR 1975.  SECTION 205(A) DIRECTS THAT
"(SUMS AUTHORIZED TO BE APPROPRIATED PURSUANT TO (207)" FOR FISCAL YEAR
1973 BE ALLOTTED "NOT LATER THAN 30 DAYS AFTER OCTOBER 18, 1972."  THE
"(SUMS AUTHORIZED" FOR THE LATER FISCAL YEARS 1974 AND 1975 "SHALL BE
ALLOTTED BY THE ADMINISTRATOR NOT LATER THAN THE JANUARY 1ST
IMMEDIATELY PRECEDING THE BEGINNING OF THE FISCAL YEAR FOR WHICH
AUTHORIZED.  . . ."  FROM THESE ALLOTTED SUMS, 201(G)(1) AUTHORIZES THE
ADMINISTRATOR "TO MAKE GRANTS TO ANY . . . MUNICIPALITY . . . FOR THE
CONSTRUCTION OF PUBLICLY OWNED TREATMENT WORKS . . .," PURSUANT TO
PLANS AND SPECIFICATIONS AS REQUIRED BY 203 AND MEETING THE OTHER
REQUIREMENTS OF THE ACT, INCLUDING THOSE OF 204.  SECTION 203(A)
SPECIFIES THAT THE ADMINISTRATOR'S APPROVAL OF PLANS FOR A PROJECT
"SHALL BE DEEMED A CONTRACTUAL OBLIGATION OF THE UNITED STATES FOR THE
PAYMENT OF ITS PROPORTIONAL CONTRIBUTION TO SUCH PROJECT."  /2/ 

THE WATER POLLUTION BILL THAT BECAME THE 1972 ACT WAS PASSED BY
CONGRESS ON OCTOBER 4, 1972, BUT WAS VETOED BY THE PRESIDENT ON OCTOBER
17.  CONGRESS PROMPTLY OVERRODE THE VETO.  THEREUPON THE PRESIDENT, BY
LETTER DATED NOVEMBER 22, 1972, /3/ DIRECTED THE ADMINSTRATOR "NOT (TO)
ALLOT AMONG THE STATES THE MAXIMUM AMOUNTS PROVIDED BY SECTION 207"
AND, INSTEAD, TO ALLOT "(NO MORE THAN $2 BILLION OF THE AMOUNT
AUTHORIZED FOR THE FISCAL YEAR 1973, AND NO MORE THAN $3 BILLION OF THE
AMOUNT AUTHORIZED FOR THE FISCAL YEAR 1974.  . . ."  /4/ ON DECEMBER 8,
THE ADMINISTRATOR ANNOUNCED BY REGULATION /5/ THAT IN ACCORDANCE WITH
THE PRESIDENT'S LETTER HE WAS ALLOTTING FOR FISCAL YEARS 1973 AND 1974
"SUMS NOT TO EXCEED $2 BILLION AND $3 BILLION, RESPECTIVELY." 

THIS LITIGATION, BROUGHT BY THE CITY OF NEW YORK AND SIMILARLY
SITUATED MUNICIPALITIES IN THE STATE OF NEW YORK, FOLLOWED
IMMEDIATELY.  /6/ THE COMPLAINT SOUGHT JUDGMENT AGAINST THE
ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY DECLARING THAT HE
WAS OBLIGATED TO ALLOT TO THE STATES THE FULL AMOUNTS AUTHORIZED BY 207
FOR FISCAL YEARS 1973 AND 1974, AS WELL AS AN ORDER DIRECTING HIM TO
MAKE THOSE ALLOTMENTS.  IN MAY 1973, THE DISTRICT COURT DENIED THE
ADMINISTRATOR'S MOTION TO DISMISS AND GRANTED THE CITIES' MOTION FOR
SUMMARY JUDGMENT.  THE COURT OF APPEALS AFFIRMED, HOLDING THAT "THE ACT
REQUIRES THE ADMINISTRATOR TO ALLOT THE FULL SUMS AUTHORIZED TO BE
APPROPRIATED IN 107."  161 U.S.APP.D.C. 114, 131, 494 F.2D 1033, 1050,
(1974). 

BECAUSE OF THE DIFFERING VIEWS WITH RESPECT TO THE PROPER
CONSTRUCTION OF THE ACT BETWEEN THE FEDERAL COURTS IN THE DISTRICT OF
COLUMBIA IN THIS CASE AND THOSE OF THE FOURTH CIRCUIT IN TRAIN V.
CAMPAIGN CLEAN WATER, POST, P. 136, WE GRANTED CERTIORARI IN BOTH
CASES, 416 U.S. 969 (1974), AND HEARD THEM TOGETHER.  THE SOLE ISSUE
/7/ BEFORE US IS WHETHER THE 1972 ACT PERMITS THE ADMINISTRATOR TO
ALLOT TO THE STATES UNDER 205(A) LESS THAN THE ENTIRE AMOUNTS
AUTHORIZED TO BE APPROPRIATED BY 207.  WE HOLD THAT THE ACT DOES NOT
PERMIT SUCH ACTION AND AFFIRM THE COURT OF APPEALS.  /8/ 

APPROPRIATED PURSUANT TO (207) . . . SHALL BE ALLOTTED BY THE
ADMINISTRATOR."  SECTION 207 AUTHORIZES THE APPROPRIATION OF "NOT TO
EXCEED" SPECIFIED AMOUNTS FOR EACH OF THREE FISCAL YEARS.  THE DISPUTE
IN THIS CASE TURNS PRINCIPALLY ON THE MEANING OF THE FOREGOING LANGUAGE
FROM THE INDICATED SECTIONS OF THE ACT. 

THE ADMINISTRATOR CONTENDS THAT 205(A) DIRECTS THE ALLOTMENT OF ONLY
"SUMS"--NOT "ALL SUMS"--AUTHORIZED BY 207 TO BE APPROPRIATED AND THAT
THE SUMS THAT MUST BE ALLOTTED ARE MERELY SUMS THAT DO NOT EXCEED THE
AMOUNTS SPECIFIED IN 207 FOR EACH OF THE THREE FISCAL YEARS.  IN OTHER
WORDS, IT IS ARGUED THAT THERE IS A MAXIMUM, BUT NO MINIMUM, ON THE
AMOUNTS THAT MUST BE ALLOTTED UNDER 205(A).  THIS IS NECESSARILY THE
CASE, HE INSISTS, BECAUSE THE LEGISLATION, AFTER INITIALLY PASSING THE
HOUSE AND SENATE IN SOMEWHAT DIFFERENT FORM, WAS AMENDED IN CONFERENCE
AND THE CHANGES, WHICH WERE ADOPTED BY BOTH HOUSES, WERE INTENDED TO
PROVIDE WIDE DISCRETION IN THE EXECUTIVE TO CONTROL THE RATE OF
SPENDING UNDER THE ACT. 

THE CHANGES RELIED ON BY THE ADMINISTRATOR, THE SO-CALLED HARSHA
AMENDMENTS, WERE TWO.  FIRST, 205 OF THE HOUSE AND SENATE BILLS AS THEY
PASSED THOSE HOUSES AND WENT TO CONFERENCE, DIRECTED THAT THERE BE
ALLOTTED "ALL SUMS" AUTHORIZED TO BE APPROPRIATED BY 207.  /9/ THE WORD
"ALL" WAS STRUCK IN CONFERENCE.  SECOND, 207 OF THE HOUSE BILL
AUTHORIZED THE APPROPRIATION OF SPECIFIC AMOUNTS FOR THE THREE FISCAL
YEARS.  THE CONFERENCE COMMITTEE INSERTED THE QUALIFYING WORDS "NOT TO
EXCEED" BEFORE EACH OF THE SUMS SO SPECIFIED. 

THE ADMINISTRATOR'S ARGUMENTS BASED ON THE STATUTORY LANGUAGE AND
ITS LEGISLATIVE HISTORY ARE UNPERSUASIVE.  SECTION 207 AUTHORIZED
APPROPRIATION OF "NOT TO EXCEED" A SPECIFIED SUM FOR EACH OF THE THREE
FISCAL YEARS.  IF THE STATES FAILED TO SUBMIT PROJECTS SUFFICIENT TO
REQUIRE OBLIGATION, AND HENCE THE APPROPRIATION, OF THE ENTIRE AMOUNTS
AUTHORIZED, OR IF THE ADMINISTRATOR, EXERCISING WHATEVER AUTHORITY THE
ACT MIGHT HAVE GIVEN HIM TO DENY GRANTS, REFUSED TO OBLIGATE THESE
TOTAL AMOUNTS, 207 WOULD OBVIOUSLY PERMIT APPROPRIATION OF THE LESSER
AMOUNTS.  BUT IF, FOR EXAMPLE, THE FULL AMOUNT PROVIDED FOR 1973 WAS
OBLIGATED BY THE ADMINISTRATOR IN THE COURSE OF APPROVING PLANS AND
MAKING GRANTS FOR MUNICIPAL CONTRACTS, 207 PLAINLY "AUTHORIZED" THE
APPROPRIATION OF THE ENTIRE $5 BILLION.  IF A SUM OF MONEY IS
"AUTHORIZED" TO BE APPROPRIATED IN THE FUTURE BY 207, THEN 205(A)
DIRECTS THAT AN AMOUNT EQUAL TO THAT SUM BE ALLOTTED.  SECTION 207
SPEAKS OF SUMS AUTHORIZED TO BE APPROPRIATED, NOT OF SUMS THAT ARE
REQUIRED TO BE APPROPRIATED; AND AS FAR AS 205(A)'S REQUIREMENT TO
ALLOT IS CONCERNED, WE SEE NO DIFFERENCE BETWEEN THE $2 BILLION THE
PRESIDENT DIRECTED TO BE ALLOTTED FOR FISCAL YEAR 1973 AND THE $3
BILLION HE ORDERED WITHHELD.  THE LATTER SUM IS AS MUCH AUTHORIZED TO
BE APPROPRIATED BY 207 AS IS THE FORMER.  BOTH MUST BE ALLOTTED. 

IT IS INSISTED THAT THIS READING OF THE ACT FAILS TO GIVE ANY EFFECT
TO THE CONFERENCE COMMITTEE'S CHANGES IN THE BILL.  BUT, AS ALREADY
INDICATED, THE "NOT TO EXCEED" QUALIFYING LANGUAGE OF 207 HAS MEANING
OF ITS OWN, QUITE APART FROM 205(A), AND REFLECTS THE REALISTIC
POSSIBILITY THAT APPROVED APPLICATIONS FOR GRANTS FROM FUNDS ALREADY
ALLOTTED WOULD NOT TOTAL THE MAXIMUM AMOUNT AUTHORIZED TO BE
APPROPRIATED.  SURELY THERE IS NOTHING INCONSISTENT BETWEEN AUTHORIZING
"NOT TO EXCEED" $5 BILLION FOR 1973 AND REQUIRING THE FULL ALLOTMENT OF
THE $5 BILLION AMONG THE STATES.  INDEED, IF THE ENTIRE AMOUNT
AUTHORIZED IS EVER TO BE APPROPRIATED, THERE MUST BE APPROVED MUNICIPAL
PROJECTS IN THAT AMOUNT, AND GRANTS FOR THOSE PROJECTS MAY ONLY BE MADE
FROM ALLOTTED FUNDS. 

AS FOR STRIKING THE WORD "ALL" FROM 205, IF CONGRESS INTENDED TO
CONFER ANY DISCRETION ON THE EXECUTIVE TO WITHHOLD FUNDS FROM THIS
PROGRAM AT THE ALLOTMENT STAGE, IT CHOSE QUITE INADEQUATE MEANS TO DO
SO.  IT APPEARS TO US THAT THE WORD "SUMS" HAS NO DIFFERENT MEANING AND
CAN BE ASCRIBED NO DIFFERENT FUNCTION IN THE CONTEXT OF 205 THAN WOULD
THE WORDS "ALL SUMS."  IT IS SAID THAT THE CHANGES WERE MADE TO GIVE
THE EXECUTIVE THE DISCRETIONARY CONTROL OVER THE OUTLAY OF FUNDS FOR
TITLE II PROGRAMS AT EITHER STAGE OF THE PROCESS.  BUT LEGISLATIVE
INTENTION, WITHOUT MORE, IS NOT LEGISLATION.  WITHOUT SOMETHING IN
ADDITION TO WHAT IS NOW BEFORE US, WE CANNOT ACCEPT THE ADDITION OF THE
FEW WORDS TO 207 AND THE DELETION OF THE ONE WORD FROM 205(A) AS
ALTERING THE ENTIRE COMPLEXION AND THRUST OF THE ACT.  AS CONCEIVED AND
PASSED IN BOTH HOUSES, THE LEGISLATION WAS INTENDED TO PROVIDE A FIRM
COMMITMENT OF SUBSTANTIAL SUMS WITHIN A RELATIVELY LIMITED PERIOD OF
TIME IN AN EFFORT TO ACHIEVE AN EARLY SOLUTION OF WHAT WAS DEEMED AN
URGENT PROBLEM.  /10/ WE CANNOT BELIEVE THAT CONGRESS AT THE LAST
MINUTE SCUTTLED THE ENTIRE EFFORT BY PROVIDING THE EXECUTIVE WITH THE
SEEMINGLYLIMITLESS POWER TO WITHHOLD FUNDS FROM ALLOTMENT AND
OBLIGATION.  YET SUCH WAS THE GOVERNMENT'S POSITION IN THE LOWER COURTS
-COMBINED WITH THE ARGUMENT THAT THE DISCRETION CONFERRED IS
UNREVIEWABLE. 

THE ADMINISTRATOR HAS NOW HAD SECOND THOUGHTS.  HE DOES NOT NOW
CLAIM THAT THE HARSHA AMENDMENTS SHOULD BE GIVEN SUCH FAR-REACHING
EFFECT.  IN THIS COURT, HE VIEWS 205(A) AND 207 AS MERELY CONFERRING
DISCRETION ON THE ADMINISTRATOR AS TO THE TIMING OF EXPENDITURES, NOT
AS TO THE ULTIMATE AMOUNTS TO BE ALLOTTED AND OBLIGATED.  HE ASSERTS
THAT ALTHOUGH HE MAY LIMIT INITIAL ALLOTMENTS IN THE THREE SPECIFIED
YEARS, "THE POWER TO ALLOT CONTINUES" AND MUST BE EXERCISED, "UNTIL THE
FULL $18 BILLION HAS BEEN EXHAUSTED."  /11/  BRIEF FOR PETITIONER 13;
TR. OF ORAL ARG. 16 - 17.  IT IS TRUE THAT THIS REPRESENTS A MAJOR
MODIFICATION OF THE ADMINISTRATOR'S LEGAL POSTURE, /12/ BUT OUR
CONCLUSION THAT 205(A) REQUIRES THE ALLOTMENT OF SUMS EQUAL TO THE
TOTAL AMOUNTS AUTHORIZED TO BE APPROPRIATED UNDER 207 IS NOT AFFECTED. 
IN THE FIRST PLACE, UNDER 205(A) THE ADMINISTRATOR'S POWER TO ALLOT
EXTENDS ONLY TO "SUMS" THAT ARE AUTHORIZED TO BE APPROPRIATED UNDER
207.  IF HE LATER HAS POWER TO ALLOT, AND MUST ALLOT, THE BALANCE OF
THE $18 BILLION NOT INITIALLY ALLOTTED IN THE SPECIFIED YEARS, IT IS
ONLY BECAUSE THESE ADDITIONAL AMOUNTS ARE "SUMS"  AUTHORIZED BY 207 TO
BE APPROPRIATED.  BUT IF THEY ARE "SUMS" WITHIN THE MEANING OF 205(A),
THEN THAT SECTION REQUIRES THAT THEY BE ALLOTTED BY NOVEMBER 17, 1972,
IN THE CASE OF 1973 FUNDS, AND FOR 1974 AND 1975 "NOT LATER THAN THE
JANUARY 1ST IMMEDIATELY PRECEDING THE BEGINNING OF THE FISCAL YEAR FOR
WHICH AUTHORIZED."  /13/ THE NOVEMBER 22 LETTER OF THE PRECIDENT AND
THE ADMINISTRATOR'S CONSEQUENT WITHHOLDING OF AUTHORIZED FUNDS CANNOT
BE SQUARED WITH THE STATUTE. 

SECOND, EVEN ASSUMING AN INTENTION ON THE PART OF CONGRESS, IN THE
HOPE OF FORSTALLING A VETO, TO IMPLY A POWER OF SOME SORT IN THE
EXECUTIVE TO CONTROL OUTLAYS UNDER THE ACT, THERE IS NOTHING IN THE
LEGISLATIVE HISTORY OF THE ACT INDICATING THAT SUCH DISCRETION ARGUABLY
GRANTED WAS TO BE EXERCISED AT THE ALLOTMENT STAGE RATHER THAN OR IN
ADDITION TO THE OBLIGATION PHASE OF THE PROCESS.  ON THE CONTRARY, AS
WE VIEW THE LEGISLATIVE HISTORY, THE INDICATIONS ARE THAT THE POWER TO
CONTROL, SUCH AS IT WAS, WAS TO BE EXERCISED AT THE POINT WHERE FUNDS
WERE OBLIGATED AND NOT IN CONNECTION WITH THE THRESHOLD FUNCTION OF
ALLOTTING FUNDS TO THE STATES.  /14/ THE COURT OF APPEALS CAREFULLY
EXAMINED THE LEGISLATIVE HISTORY IN THIS RESPECT AND ARRIVED AT THE
SAME CONCLUSION, AS HAVE MOST OF THE OTHER COURTS THAT HAVE DEALT WITH
THE ISSUE.  /15/ WE THUS REJECT THE SUGGESTION THAT THE CONCLUSION WE
HAVE ARRIVED AT IS INCONSISTENT WITH THE LEGISLATIVE HISTORY OF 205(A)
AND 207. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

        SO ORDERED. 

/1/ THE PROVISIONS OF TITLE II, AS ADDED BY THE 1972 AMENDMENTS
CHIEFLY INVOLVED IN THIS CASE ARE, IN PERTINENT PART, AS FOLLOWS: 


"SUMS AUTHORIZED TO BE APPROPRIATED PURSUANT TO SECTION 1287 OF THIS
TITLE FOR EACH FISCAL YEAR BEGINNING AFTER JUNE 30, 1972, SHALL BE
ALLOTTED BY THE ADMINISTRATOR NOT LATER THAN THE JANUARY 1ST
IMMEDIATELY PRECEDING THE BEGINNING OF THE FISCAL YEAR FOR WHICH
AUTHORIZED, EXCEPT THAT THE ALLOTMENT FOR FISCAL YEAR 1973 SHALL BE
MADE NOT LATER THAN 30 DAYS AFTER OCTOBER 18, 1972.  . . ." 


"THERE IS AUTHORIZED TO BE APPROPRIATED TO CARRY OUT THIS SUBCHAPTER
. . . FOR THE FISCAL YEAR ENDING JUNE 30, 1973, NOT TO EXCEED
$5,000,000,000, FOR THE FISCAL YEAR ENDING JUNE 30, 1974, NOT TO EXCEED
$6,000,000,000, AND FOR THE FISCAL YEAR ENDING JUNE 30, 1975, NOT TO
EXCEED $7,000,000,000." 


"(A) EACH APPLICANT FOR A GRANT SHALL SUBMIT TO THE ADMINISTRATOR
FOR HIS APPROVAL, PLANS, SPECIFICATIONS, AND ESTIMATES FOR EACH
PROPOSED PROJECT FOR THE CONSTRUCTION OF TREATMENT WORKS FOR WHICH A
GRANT IS APPLIED FOR (SIC) UNDER SECTION 1281(G)(1) OF THIS TITLE FROM
FUNDS ALLOTTED TO THE STATE UNDER SECTION 1285 OF THIS TITLE AND WHICH
OTHERWISE MEETS THE REQUIREMENTS OF THIS CHAPTER.  THE ADMINISTRATOR
SHALL ACT UPON SUCH PLANS, SPECIFICATIONS, AND ESTIMATES AS SOON AS
PRACTICABLE AFTER THE SAME HAVE BEEN SUBMITTED, AND HIS APPROVAL OF ANY
SUCH PLANS, SPECIFICATIONS, AND ESTIMATES SHALL BE DEEMED A CONTRACTUAL
OBLIGATION OF THE UNITED STATES FOR THE PAYMENT OF ITS PROPORTIONAL
CONTRIBUTION TO SUCH PROJECT.     "(B) THE ADMINISTRATOR SHALL, FROM
TIME TO TIME AS THE WORK PROGRESSES, MAKE PAYMENTS TO THE RECIPIENT OF
A GRANT FOR COSTS OF CONSTRUCTION INCURRED ON A PROJECT.  THESE
PAYMENTS SHALL AT NO TIME EXCEED THE FEDERAL SHARE OF THE COST OF
CONSTRUCTION INCURRED ON A PROJECT.  THESE PAYMENTS SHALL AT NO TIME
EXCEED THE FEDERAL SHARE OF THE COST OF CONSTRUCTION INCURRED TO THE
DATE OF THE VOUCHER COVERING SUCH PAYMENT PLUS THE FEDERAL SHARE OF THE
VALUE OF THE MATERIALS WHICH HAVE BEEN STOCKPILED IN THE VICINITY OF
SUCH CONSTRUCTION IN CONFORMITY TO PLANS AND SPECIFICATIONS FOR THE
PROJECT. 

"(C) AFTER COMPLETION OF A PROJECT AND APPROVAL OF THE FINAL VOUCHER
BY THE ADMINISTRATOR, HE SHALL PAY OUT OF THE APPROPRIATE SUMS THE
UNPAID BALANCE OF THE FEDERAL SHARE PAYABLE ON ACCOUNT OF SUCH
PROJECT." 

/2/ THE ACT THUS ESTABLISHED A FINDING METHOD DIFFERING IN IMPORTANT
RESPECTS FROM THE NORMAL SYSTEM OF PROGRAM APPROVAL AND AUTHORIZATION
OF APPROPRIATION FOLLOWED BY SEPARATE ANNUAL APPROPRIATION ACTS.  UNDER
THAT APPROACH, IT IS NOT UNTIL THE ACTUAL APPROPRIATION THAT THE
GOVERNMENT FUNDS CAN BE DEEMED FIRMLY COMMITTED.  UNDER THE CONTRACT
AUTHORITY SCHEME INCORPORATED IN THE LEGISLATION BEFORE US NOW, THERE
ARE AUTHORIZATIONS FOR FUTURE APPROPRIATIONS BUT ALSO INITIAL AND
CONTINUING AUTHORITY IN THE EXECUTIVE BRANCH CONTRACTUALLY TO COMMIT
FUNDS OF THE UNITED STATES UP TO THE AMOUNT OF THE AUTHORIZATION.  THE
EXPECTATION IS THAT APPROPRIATIONS WILL BE AUTOMATICALLY FORTHCOMING TO
MEET THESE CONTRACTUAL COMMITMENTS.  THIS MECHANISM CONSIDERABLY
REDUCES WHATEVER DISCRETION CONGRESS MIGHT HAVE EXERCISED IN THE COURSE
OF MAKING ANNUAL APPROPRIATIONS.  THE ISSUE IN THIS CASE IS THE EXTENT
OF THE AUTHORITY OF THE EXECUTIVE TO CONTROL EXPENDITURES FOR A PROGRAM
THAT CONGRESS HAS FUNDED IN THE MANNER AND UNDER THE CIRCUMSTANCES
PRESENT HERE. 

/3/ LETTER FROM PRESIDENT NIXON TO WILLIAM D. RUCKELSHAUS,
ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, NOV. 22, 1972, APP. 15
16. 

/4/ ALTHOUGH THE ALLOTMENT FOR FISCAL YEAR 1975 IS NOT DIRECTLY AT
ISSUE IN THIS CASE, ON JANUARY 15, 1974, THE ADMINISTRATOR ALLOTTED $4
BILLION OUT OF THE $7 BILLION AUTHORIZED FOR ALLOTMENT FOR THAT FISCAL
YEAR.  BRIEF FOR PETITIONER 6. 

/5/ 37 FED.REG.  26282 (1972). 

/6/ THE DISTRICT COURT ORDERED THE ACTION TO PROCEED AS A CLASS
ACTION UNDER FED. RULES CIV. PROC. 23(B)(1) AND (2) AND ALSO ALLOWED
THE CITY OF DETROIT TO INTERVENE AS A PLAINTIFF. 

/7/ THE PETITION FOR A WRIT OF CERTIORARI ALSO PRESENTED THE
QUESTION WHETHER A SUIT TO COMPEL THE ALLOTMENT OF THE SUMS IN ISSUE
HERE IS BARRED BY THE DOCTRINE OF SOVEREIGN IMMUNITY, BUT THAT ISSUE
WAS NOT BRIEFED AND APPARENTLY HAS BEEN ABANDONED.  THE ADMINISTRATOR
CONCEDES THAT, IF 205(A) REQUIRES ALLOTMENT OF THE FULL AMOUNTS
AUTHORIZED BY 207, THEN "ALLOTMENT IS A MINISTERIAL ACT AND THE
DISTRICT COURTS HAVE JURISDICTION TO ORDER THAT IT BE DONE."  BRIEF FOR
PETITIONER 14. 

/8/ ON JULY 12, 1974, WHILE THIS CASE WAS PENDING IN THIS COURT THE
CONGRESSIONAL BUDGET AND IMPOUNDMENT CONTROL ACT OF 1974, PUB. L. 93 -
344, 88 STAT. 297, BECAME EFFECTIVE.  TITLE X OF THAT ACT IMPOSES
CERTAIN REQUIREMENTS ON THE PRESIDENT IN POSTPONING OR WITHHOLDING THE
USE OF AUTHORIZED FUNDS.  IF HE DETERMINES THAT CERTAIN BUDGET
AUTHORITY WILL NOT BE REQUIRED TO CARRY OUT A PARTICULAR PROGRAM AND IS
OF THE VIEW THAT SUCH AUTHORITY SHOULD BE RESCINDED, HE MUST SUBMIT A
SPECIAL MESSAGE TO CONGRESS EXPLAINING THE BASIS THEREFOR.  FOR THE
RESCISSION TO BE EFFECTIVE, CONGRESS MUST APPROVE IT WITHIN 45 DAYS. 
SHOULD THE PRESIDENT DESIRE TO WITHHOLD OR DELAY THE OBLIGATION OR
EXPENDITURE OF BUDGET AUTHORITY, HE MUST SUBMIT A SIMILAR SPECIAL
MESSAGE TO CONGRESS.  HIS RECOMMENDATION MAY BE REJECTED BY EITHER
HOUSE ADOPTING A RESOLUTION DISAPPROVING THE PROPOSED DEFERRAL. 

THESE PROVISIONS DO NOT ENDER THIS CASE MOOT OR MAKE ITS DECISION
UNNECESSARY, FOR 1001 PROVIDES THAT: 

"NOTHING CONTAINED IN THIS ACT, OR IN ANY AMENDMENTS MADE BY THIS
ACT, SHALL BE CONSTRUED AS--

        .  .  .  . 

"(3) AFFECTING IN ANY WAY THE CLAIMS OR DEFENSES OF ANY PARTY TO
LITIGATION CONCERNING ANY IMPOUNDMENT." 

THE ACT WOULD THUS NOT APPEAR TO AFFECT CASES SUCH AS THIS ONE,
PENDING ON THE DATE OF ENACTMENT OF THE STATUTE.  THE SOLICITOR
GENERAL, ON BEHALF OF THE ADMINISTRATOR, HAS SUBMITTED A SUPPLEMENTAL
BRIEF TO THIS EFFECT.  THE CITY OF NEW YORK AGREES THAT THE CASE HAS
NOT BEEN MOOTED BY THE IMPOUNDMENT ACT AND NO CONTRARY VIEWS HAVE BEEN
FILED. 

ALTHOUGH ASSERTING ON THE FOREGOING GROUND AND ON OTHER GROUNDS THAT
THE IMPOUNDMENT ACT HAS NO APPLICATION HERE, THE EXECUTIVE BRANCH
INCLUDED AMONG THE DEFERRALS OF BUDGET AUTHORITY REPORTED TO CONGRESS
PURSUANT TO THE NEW ACT: 

"GRANTS FOR WASTE TREATMENT PLANT CONSTRUCTION ($9 BILLION). 
RELEASE OF ALL THESE FUNDS WOULD HE HIGHLY INFLATIONARY, PARTICULARLY
IN VIEW OF THE RAPID RISE IN NON-FEDERAL SPENDING FOR POLLUTION
CONTROL.  SOME OF THE FUNDS NOW DEFERRED WILL BE ALLOTTED ON OR PRIOR
TO FEBRUARY 1, 1975." 

IN CONNECTION WITH THAT SUBMISSION, THE PRESIDENT ASSERTED THAT THE
ACT "APPLIES ONLY TO DETERMINATIONS TO WITHHOLD BUDGET AUTHORITY WHICH
HAVE BEEN MADE SINCE THE LAW WAS APPROVED," BUT NEVERTHELESS THOUGHT IT
APPROPRIATE TO INCLUDE IN THE REPORT ACTIONS WHICH WERE CONCLUDED
BEFORE THE EFFECTIVE DATE OF THE ACT.  120 CONG.REC.  S17195 (SEPT. 23,
1974).  OTHER THAN AS THEY BEAR ON THE POSSIBLE MOOTNESS IN THE
LITIGATION BEFORE US, NO ISSUES AS TO THE REACH OR COVERAGE OF THE
IMPOUNDMENT ACT ARE BEFORE US. 

/9/ SECTION 205 AS IT APPEARED IN THE SENATE BILL DIRECTED THE
ADMINISTRATOR TO "ALLOCATE" RATHER THAN TO "ALLOT."  THE DIFFERENCE
APPEARS TO BE WITHOUT SIGNIFICANCE. 

/10/ THE ACT DECLARES THAT "IT IS THE NATURAL GOAL THAT THE
DISCHARGE OF POLLUTANTS INTO THE NAVIGABLE WATERS BE ELIMINATED BY
1985."  101(A)(1), 33 U.S.C. 1251(A)(1) (1970 ED.,SUPP.  II).  CONGRESS
INTENDED ALSO TO APPLY TO PUBLICLY OWNED SEWAGE TREATMENT WORKS "THE
BEST PRACTICABLE WASTE TREATMENT TECHNOLOGY OVER THE LIFE OF THE WORKS
CONSISTENT WITH THE PURPOSES OF THIS SUBCHAPTER."  201(G)(2)(A), 33
U.S.C. 1281(G)(2)(A) (1970 ED.,SUPP.  II).  SEE 301(B)(1)(B), 33 U.S.C.
1311(B)(1)(B) (1970 ED.,SUPP.  II).  THE CONGRESSIONAL DETERMINATION TO
COMMIT $18 BILLION DURING THE FISCAL YEAR 1973 - 1975 IS REFLECTED IN
THE FOLLOWING REMARKS OF SENATOR MUSKIE, THE CHAIRMAN OF THE SENATE
SUBCOMMITTEE CONCERNED WITH THE LEGISLATION AND THE MANAGER OF THE BILL
ON THE SENATE FLOOR: 

"(THOSE WHO SAY THAT RAISING THE AMOUNTS OF MONEY CALLED FOR IN THIS
LEGISLATION MAY REQUIRE HIGHER TAXES, OR THAT SPENDING THIS MUCH MONEY
MAY CONTRIBUTE TO INFLATION SIMPLY DO NOT UNDERSTAND THE LANGUAGE OF
THIS CRISIS. 

"THE CONFEREES SPENT HOURS AND DAYS STUDYING THE PROBLEM OF
FINANCING THE CLEANUP EFFORT REQUIRED BY THIS NEW LEGISLATION.  THE
MEMBERS AGREED IN THE END THAT A TOTAL OF $18 BILLION HAD TO BE
COMMITTED BY THE FEDERAL GOVERNMENT IN 75-PERCENT GRANTS TO
MUNICIPALITIES DURING FISCAL YEARS 1973 - 75.  THAT IS A GREAT DEAL OF
MONEY; BUT THAT IS HOW MUCH IT WILL COST TO BEGIN TO ACHIEVE THE
REQUIREMENTS SET FORTH IN THE LEGISLATION. 

        .  .  .  . 

". . . (THERE WERE TWO STRONG IMPERATIVES WHICH WORKED TOGETHER TO
CONVINCE THE MEMBERS OF THE CONFERENCE THAT THIS MUCH MONEY WAS NEEDED:
FIRST, THE CONVICTION THAT ONLY A NATIONAL COMMITMENT OF THIS
MAGNITUDE WOULD PRODUCE THE NECESSARY TECHNOLOGY; AND SECOND, THE
KNOWLEDGE THAT A FEDERAL COMMITMENT OF $18 BILLION IN 75-PERCENT GRANTS
TO THE MUNICIPALITIES WAS THE MINIMUM AMOUNT NEEDED TO FINANCE THE
CONSTRUCTION OF WASTE TREATMENT FACILITIES WHICH WILL MEET THE
STANDARDS IMPOSED BY THIS LEGISLATION. 

        .  .  .  . 

"MR. PRESIDENT, TO ACHIEVE THE DEADLINES WE ARE TALKING ABOUT IN
THIS BILL WE ARE GOING TO NEED THE STRONGEST KIND OF EVIDENCE OF THE
FEDERAL GOVERNMENT'S COMMITMENT TO PICK UP ITS SHARE OF THE LOAD.  WE
CANNOT BACK DOWN, WITH ANY CREDIBILITY, FROM THE KIND OF INVESTMENT IN
WASTE TREATMENT FACILITIES THAT IS CALLED FOR BY THIS BILL.  AND THE
CONFEREES ARE CONVINCED THAT THE LEVEL OF INVESTMENT THAT IS AUTHORIZED
IS THE MINIMUM DOSE OF MEDICINE THAT WILL SOLVE THE PROBLEMS WE FACT." 
118 CONG.REC.  33693 - 33694 (1972). 

BOTH HOUSES REJECTED AUTHORIZATION-APPROPRIATION FUNDING IN FAVOR OF
THE CONTRACT-AUTHORITY SYSTEM, WHICH WAS DEEMED TO INVOLVE A MORE
BINDING AND RELIABLE COMMITMENT OF FUNDS.  SEE 117 CONG.REC.  38799,
38846 - 38853 (1971); 118 CONG.REC.  10751 - 10761 (1072).  CONGRESSMAN
HARSHA, THE HOUSE FLOOR MANAGER OF THE BILL, EXPLAINED THE PREFERENCE
FOR THE CONTRACT-AUTHORITY APPROACH AND INDICATED THAT IT WAS ESSENTIAL
FOR ORDERLY AND CONTINUOUS PLANNING.  ID., AT 10757 - 10758. 

/11/ THE ADMINISTRATOR GOES ON TO ARGUE THAT UNDER HIS PRESENT VIEW
OF THE ACT, THESE IS LITTLE IF ANY DIFFERENCE BETWEEN DISCRETION TO
UITHHOLD ALLOTMENTS AND DISCRETION TO REFUSE TO OBLIGATE, FOR UNDER
EITHER APPROACH THE FULL AMOUNTS AUTHORIZED WILL EVENTUALLY BE
AVAILABLE FOR OBLIGATION.  THE CITY OF NEW YORK CONTENDS OTHERWISE. 
OUR VIEW OF THE ACT MAKES IT UNNECESSARY TO REACH THE QUESTION. 

/12/ THE ADMINISTRATOR NOW INDICATES THAT THE ACT IS PRESENTLY BEING
ADMINISTERED IN ACCORDANCE WITH HIS VIEW OF THE ACT ASSERTED HERE. 
BRIEF FOR PETITIONER 13. 

/13/ UNDER 205(B), ANY FUNDS ALLOTTED TO A STATE THAT REMAIN
UNOBLIGATED AT THE END OF A ONE-YEAR PERIOD AFTER THE CLOSE OF THE
FISCAL YEAR FOR WHICH FUNDS ARE AUTHORIZED BECOME AVAILABLE FOR
REALLOTMENT BY THE ADMINISTRATOR IN ACCORDANCE WITH A FORMULA TO BE
DETERMINED BY THE ADMINISTRATOR.  THESE PROVISIONS FOR REALLOTMENT, AS
WELL AS THE REALLOTMENT FORMULA, PLAINLY APPLY ONLY TO FUNDS THAT HAVE
ALREADY BEEN ALLOTTED. 

/14/ SENATOR MUSKIE, WHO WAS THE SENIOR MAJORITY CONFEREE FROM THE
SENATE, GAVE HIS VIEW OF THE MEANING OF THE HARSHA AMENDMENTS ON THE
FLOOR OF THE SENATE: 

"UNDER THE AMENDMENTS PROPOSED BY CONGRESSMAN WILLIAM HARSHA AND
OTHERS, THE AUTHORIZATIONS FOR OBLIGATIONAL AUTHORITY ARE 'NOT TO
EXCEED' $18 BILLION OVER THE NEXT 3 YEARS.  ALSO, 'ALL' SUMS AUTHORIZED
TO BE OBLIGATED NEED NOT BE COMMITTED, THOUGH THEY MUST BE ALLOCATED. 
THESE TWO PROVISIONS WERE SUGGESTED TO GIVE THE ADMINISTRATION SOME
FLEXIBILITY CONCERNING THE OBLIGATION OF CONSTRUCTION GRANT FUNDS." 
118 CONG.REC.  33694 (1972). 

HE REPEATED HIS VIEWS IN THE COURSE OF SENATE PROCEEDINGS TO
OVERRIDE THE PRESIDENT'S VETO.  ID., AT 36871.  NOTHING WAS SAID IN THE
SENATE CHALLENGING THE SENATOR'S VIEW THAT EXECUTIVE DISCRETION DID NOT
EXTEND TO ALLOTMENTS. 

IN THE HOUSE, THE POWER TO MAKE ALLOTMENTS UNDER 205 WAS NOT
MENTIONED IN TERMS.  THE IMPACT OF THE HARSHA AMENDMENTS WAS REPEATEDLY
EXPLAINED BY REFERENCE TO DISCRETION TO OBLIGATE OR TO EXPEND.  TYPICAL
WAS REPRESENTATIVE HARSHA'S REMARKS THAT THE AMENDMENTS WERE INTENDED
TO "EMPHASIZE THE PRESIDENT'S FLEXIBILITY TO CONTROL THE RATE OF
SPENDING . . .," AND THAT "THE PACING ITEM" IN THE EXPENDITURE OF FUNDS
WAS THE ADMINISTRATOR'S POWER TO APPROVE PLANS, SPECIFICATIONS, AND
ESTIMATES.  ID., AT 33754.  SEE ALSO ID., AT 33754 - 33755, 33693,
33704, 33715 - 33716, 36873 - 36874, 37056 - 37060. 

/15/ 161 U.S.APP.D.C. 114, 494 F.2D 1033 (1974), AFF'G 358 F.SUPP. 
669 (DC 1973).  OTHER DISTRICT COURTS HAVE REACHED THIS SAME RESULT:
OHIO EX REL. BROWN V. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY,
NOS. C. 73 - 1061 & C. 74 - 104 (ND OHIO JUNE 26, 1974); MAINE V. FRI,
CIV. NO. 14 - 51 (ME. JUNE 21, 1974); FLORIDA V. TRAIN, CIV. NO. 73 -
156 (ND FLA. FEB. 25, 1974); TEXAS V. RUCKELSHAUS, NO. A - 73 - CA - 38
(WD TEX. OCT. 2, 1973); MARTIN-TRIGONA V. RUCKELSHAUS, NO. 72 - C -
3044 (ND ILL. JUNE 29, 1973); MINNESOTA V. EPA, NO. 4 - 73, CIV. 133
(MINN. JUNE 25, 1974).  THE ONLY DISTRICT COURT IN WHICH THE ISSUE WAS
ACTIVELY LITIGATED WHICH HELD TO THE CONTRARY WAS BROWN V. RUCKELSHAUS,
364 F.SUPP.  258 (CD CAL. 1973). 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE ASSISTANT ATTORNEY GENERAL HILLS, DEPUTY SOLICITOR
GENERAL FRIEDMAN, EDMUND W. KITCH, WILLIAM L. PATTON, ROBERT E. KOPP,
ELOISE E. DAVIES, AND DAVID M. COHEN. 

JOHN R. THOMPSON ARGUED THE CAUSE FOR RESPONDENT CITY OF NEW YORK. 
WITH HIM ON THE BRIEFS WERE ADRIAN P. BURKE, GARY MAILMAN, AND
ALEXANDER GIGANTE, JR. 

BRIEFS OF AMICI CURIAE WERE FILED BY EVELLE J. YOUNGER, ATTORNEY
GENERAL, PRO SE, ROBERT H. O'BRIEN, SENIOR ASSISTANT ATTORNEY GENERAL,
AND NICHOLAS C. YOST, DEPUTY ATTORNEY GENERAL, FOR THE ATTORNEY GENERAL
OF CALIFORNIA; BY FRANK J. KELLEY, ATTORNEY GENERAL, ROBERT A.
DERENGOSKI, SOLICITOR GENERAL, AND STEWART H. FREEMAN AND CHARLES
ALPERT, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF MICHIGAN; BY
WARREN SPANNAUS, ATTORNEY GENERAL, BYRON E. STARNS, DEPUTY ATTORNEY
GENERAL, PETER W. SIPKINS, SOLICITOR GENERAL, AND ELDON G. KAUL,
SPECIAL ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF MINNESOTA; BY
WILLIAM F. HYLAND, ATTORNEY GENERAL, PRO SE, STEPHEN SKILLMAN,
ASSISTANT ATTORNEY GENERAL, AND JOHN M. VAN DALEN, DEPUTY ATTORNEY
GENERAL, FOR THE ATTORNEY GENERAL OF NEW JERSEY; BY WILLIAM J. BROWN,
ATTORNEY GENERAL, AND RICHARD P. FAHEY AND DAVID E. NORTHROP, ASSISTANT
ATTORNEYS GENERAL, FOR THE STATE OF OHIO; BY JOHN L. HILL, ATTORNEY
GENERAL, LARRY F. YORK, FIRST ASSISTANT ATTORNEY GENERAL, AND PHILIP K.
MAXWELL, ASSISTANT ATTORNEY GENERAL OF TEXAS, ROBERT W. WARREN,
ATTORNEY GENERAL, AND THEODORE L. PRIEBE, ASSISTANT ATTORNEY GENERAL OF
WISCONSIN, JOHN C. DANFORTH, ATTORNEY GENERAL, AND ROBERT M. LINDHOLM,
ASSISTANT ATTORNEY GENERAL OF MISSOURI, LARRY DERRYBERRY, ATTORNEY
GENERAL, AND PAUL C. DUNCAN, ASSISTANT ATTORNEY GENERAL OF OKLAHOMA,
AND VERN MILLER, ATTORNEY GENERAL, AND CURT T. SCHNEIDER, ASSISTANT
ATTORNEY GENERAL OF KANSAS, FOR THE STATES OF TEXAS, WISCONSIN,
MISSOURI, OKLAHOMA, AND KANSAS; BY ANDREW P. MILLER, ATTORNEY GENERAL,
GERALD L. BALILES, DEPUTY ATTORNEY GENERAL, AND JAMES E. RYAN, JR.,
ASSISTANT ATTORNEY GENERAL, FOR THE COMMONWEALTH OF VIRGINIA; BY SLADE
GORTON, ATTORNEY GENERAL, CHARLES B. ROE, JR., SENIOR ASSISTANT
ATTORNEY GENERAL, AND MARTIN J. DURKAN AND JAMES B. MCCABE, SPECIAL
ASSISTANT ATTORNEYS GENERAL OF WASHINGTON, AND ISRAEL PACKEL, ATTORNEY
GENERAL, AND JAMES R. ADAMS, DEPUTY ATTORNEY GENERAL OF PENNSYLVANIA,
FOR THE STATE OF WASHINGTON AND THE COMMONWEALTH OF PENNSYLVANIA; AND
BY FLETCHER N. BALDWIN, JR., FOR THE CENTER FOR GOVERNMENTAL
RESPONSIBILITY. 
..END :




EMPORIUM CAPWELL CO. V. COMMUNITY ORGANIZATION, 420 U.S. 50 


       EMPORIUM CAPWELL CO. V. WESTERN ADDITION COMMUNITY

           ORGANIZATION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 73 - 696.  ARGUED OCTOBER 22, 1974.--DECIDED FEBRUARY

           18, 1975; 158 U.S.APP.D.C. 138, 485 F.2D 917, REVERSED. 

        TOGETHER WITH NO. 73 - 830, NATIONAL LABOR RELATIONS BOARD

  V. WESTERN ADDITION COMMUNITY ORGANIZATION ET AL., ALSO

           ON CERTIORARI TO THE SAME COURT. 


    A UNION, AFTER INVESTIGATING COMPLAINTS THAT THE COMPANY WITH

  WHICH IT HAD A COLLECTIVE-BARGAINING AGREEMENT WAS RACIALLY

  DISCRIMINATING AGAINST EMPLOYEES, INVOKED THE CONTRACT GRIEVANCE

  PROCEDURE BY DEMANDING THAT THE JOINT UNION-MANAGEMENT ADJUSTMENT

  BOARD BE CONVENED "TO HEAR THE ENTIRE CASE."  CERTAIN EMPLOYEES

  WHO FELT THAT PROCEDURE INADEQUATE REFUSED TO PARTICIPATE AND,

  AGAINST THE UNION'S ADVICE, PICKETED THE COMPANY'S STORE.  THE

  COMPANY, AFTER WARNING THE EMPLOYEES, FIRED THEM ON THEIR

  RESUMPTION OF PICKETING, WHEREUPON A LOCAL CIVIL RIGHTS

  ASSOCIATION TO WHICH THE FIRED EMPLOYEES BELONGED (HEREINAFTER

  RESPONDENT) FILED CHARGES AGAINST THE COMPANY WITH THE NATIONAL

  LABOR RELATIONS BOARD (NLRB) UNDER 8(A)(1) OF THE NATIONAL LABOR

  RELATIONS ACT (NLRA), WHICH MAKES IT AN UNFAIR LABOR PRACTICE FOR

  AN EMPLOYER TO INTERFERE WITH AN EMPLOYEE'S RIGHT UNDER 7 TO

  ENGAGE IN CONCERTED ACTION "FOR THE PURPOSE OF COLLECTIVE

  BARGAINING OR OTHER MUTUAL AID OR PROTECTION."  THE NLRB FOUND

  THAT THE EMPLOYEES WERE DISCHARGED FOR ATTEMPTING TO BARGAIN WITH

  THE COMPANY OVER THE TERMS AND CONDITIONS OF EMPLOYMENT AS THEY

AFFECTED RACIAL MINORITIES AND HELD THAT THEY COULD NOT

CIRCUMVENT THEIR ELECTED REPRESENTATIVE'S EFFORTS TO ENGAGE IN

  SUCH BARGAINING.  ON RESPONDENT'S PETITION FOR REVIEW THE COURT

  OF APPEALS REVERSED, AND REMANDED, CONCLUDING THAT CONCERTED

  ACTIVITY AGAINST RACIAL DISCRIMINATION ENJOYS A "UNIQUE STATUS"

  UNDER THE NLRA AND TITLE VII OF THE CIVIL RIGHTS ACT OF 1964;

  THAT THE NLRB "SHOULD INQUIRE IN CASES SUCH AS THIS, WHETHER THE

  UNION WAS ACTUALLY REMEDYING THE DISCRIMINATION TO THE FULLEST

  EXTENT POSSIBLE, BY THE MOST EXPEDIENT AND EFFICACIOUS MEANS";

  AND THAT "(WHERE THE UNION'S EFFORTS FALL SHORT OF THIS HIGH

STANDARD, THE MINORITY GROUP'S CONCERTED ACTIVITIES CANNOT LOSE

  (THEIR) SECTION 7 PROTECTION."  HELD:  THOUGH NATIONAL LABOR

  POLICY ACCORDS THE HIGHEST PRIORITY TO NONDISCRIMINATORY

  EMPLOYMENT PRACTICES, THE NLRA DOES NOT PROTECT CONCERTED

  ACTIVITY BY MINORITY EMPLOYEES TO BARGAIN WITH THEIR EMPLOYER

  OVER ISSUES OF EMPLOYMENT DISCRIMINATION, THUS BYPASSING THEIR

  EXCLUSIVE BARGAINING REPRESENTATIVE.  PP. 60 - 70. 

     (A) THE NLRA IN 9(A) RECOGNIZES THE PRINCIPLE OF EXCLUSIVE

  REPRESENTATION, WHICH IS TEMPERED BY SAFEGUARDS FOR THE

  PROTECTION OF MINORITY INTERESTS, AND IN ESTABLISHING THIS REGIME

  OF MAJORITY RULE, CONGRESS SOUGHT TO SECURE TO ALL MEMBERS OF THE

  COLLECTIVE-BARGAINING UNIT THE BENEFITS OF THEIR COLLECTIVE

  STRENGTH IN FULL AWARENESS THAT THE SUPERIOR STRENGTH OF SOME

INDIVIDUALS OR GROUPS MIGHT BE SUBORDINATED TO THE MAJORITY

 INTEREST.  PP. 61 - 65. 

     (B) SEPARATE BARGAINING IS NOT ESSENTIAL TO ELIMINATE

  DISCRIMINATORY EMPLOYMENT PRACTICES, AND MAY WELL HAVE THE

  OPPOSITE EFFECT.  HERE THE GRIEVANCE PROCEDURE OF THE

  COLLECTIVE-BARGAINING AGREEMENT WAS DIRECTED PRECISELY AT

  DETERMINING WHETHER SUCH PRACTICES HAD OCCURRED.  PP. 65 - 70. 

     (C) IF THE DISCHARGES HERE INVOLVED VIOLATE TITLE VII, ITS

  REMEDIAL PROVISIONS ARE AVAILABLE TO THE DISCHARGED EMPLOYEES,

  BUT IT DOES NOT FOLLOW THAT THE DISCHARGES ALSO VIOLATED 8(A)(1)

  OF THE NLRA.  PP. 70 - 72. 

     MARSHALL, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER,

  C. J., AND BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION,

POST, P. 73. 

OPINION OF THE COURT BY MR. JUSTICE MARSHALL, ANNOUNCED BY MR. CHIEF
JUSTICE BURGER. 

THIS LITIGATION PRESENTS THE QUESTION WHETHER, IN LIGHT OF THE
NATIONAL POLICY AGAINST RACIAL DISCRIMINATION IN EMPLOYMENT, THE
NATIONAL LABOR RELATIONS ACT PROTECTS CONCERTED ACTIVITY BY A GROUP OF
MINORITY EMPLOYEES TO BARGAIN WITH THEIR EMPLOYER OVER ISSUES OF
EMPLOYMENT DISCRIMINATION.  THE NATIONAL LABOR RELATIONS BOARD HELD
THAT THE EMPLOYEES COULD NOT CIRCUMVENT THEIR ELECTED REPRESENTATIVE TO
ENGAGE IN SUCH BARGAINING.  THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT REVERSED AND REMANDED, HOLDING THAT IN CERTAIN
CIRCUMSTANCES THE ACTIVITY WOULD BE PROTECTED.  158 U.S.APP.D.C. 138,
485 F.2D 917.  BECAUSE OF THE IMPORTANCE OF THE ISSUE TO THE
ADMINISTRATION OF THE ACT, WE GRANTED CERTIORARI.  415 U.S. 913.  WE
NOW REVERSE. 

        I 

THE EMPORIUM CAPWELL CO. (COMPANY) OPERATES A DEPARTMENT STORE IN
SAN FRANCISCO.  AT ALL TIMES RELEVANT TO THIS LITIGATION IT WAS A PARTY
TO THE COLLECTIVE-BARGAINING AGREEMENT NEGOTIATED BY THE SAN FRANCISCO
RETAILER'S COUNCIL, OF WHICH IT WAS A MEMBER, AND THE DEPARTMENT STORE
EMPLOYEES UNION (UNION) WHICH REPRESENTED ALL STOCK AND MARKETING AREA
EMPLOYEES OF THE COMPANY.  THE AGREEMENT, IN WHICH THE UNION WAS
RECOGNIZED AS THE SOLE COLLECTIVE-BARGAINING AGENCY FOR ALL COVERED
EMPLOYEES, PROHIBITED EMPLOYMENT DISCRIMINATION BY REASON OF RACE,
COLOR, CREED, NATIONAL ORIGIN, AGE, OR SEX, AS WELL AS UNION ACTIVITY. 
IT HAD A NO-STRIKE OR LOCKOUT CLAUSE, AND IT ESTABLISHED GRIEVANCE AND
ARBITRATION MACHINERY FOR PROCESSING ANY CLAIMED VIOLATION OF THE
CONTRACT, INCLUDING A VIOLATION OF THE ANTIDISCRIMINATION CLAUSE.  /1/ 

ON APRIL 3, 1968, A GROUP OF COMPANY EMPLOYEES COVERED BY THE
AGREEMENT MET WITH THE SECRETARY-TREASURER OF THE UNION, WALTER
JOHNSON, TO PRESENT A LIST OF GRIEVANCES INCLUDING A CLAIM THAT THE
COMPANY WAS DISCRIMINATING ON THE BASIS OF RACE IN MAKING ASSIGNMENTS
AND PROMOTIONS.  THE UNION OFFICIAL AGREED TO TAKE CERTAIN OF THE
GRIEVANCES AND TO INVESTIGATE THE CHARGE OF RACIAL DISCRIMINATION.  HE
APPOINTED AN INVESTIGATING COMMITTEE AND PREPARED A REPORT ON THE
EMPLOYEES' GRIEVANCES, WHICH HE SUBMITTED TO THE RETAILER'S COUNCIL AND
WHICH THE COUNCIL IN TURN REFERRED TO THE COMPANY.  THE REPORT
DESCRIBED "THE POSSIBILITY OF RACIAL DISCRIMINATION" AS PERHAPS THE
MOST IMPORTANT ISSUE RAISED BY THE EMPLOYEES AND TERMED THE SITUATION
AT THE COMPANY AS POTENTIALLY EXPLOSIVE IF CORRECTIVE ACTION WERE NOT
TAKEN.  IF OFFERED AS AN EXAMPLE OF THE PROBLEM THE COMPANY'S FAILURE
TO PROMOTE A NEGRO STOCK EMPLOYEE REGARDED BY OTHER EMPLOYEES AS AN
OUTSTANDING CANDIDATE BUT A VICTIM OF RACIAL DISCRIMINATION. 

SHORTLY AFTER RECEIVING THE REPORT, THE COMPANY'S LABOR RELATIONS
DIRECTOR MET WITH UNION REPRESENTATIVES AND AGREED TO "LOOK INTO THE
MATTER" OF DISCRIMINATION AND SEE WHAT NEEDED TO BE DONE.  APPARENTLY
UNSATISFIED WITH THESE REPRESENTATIONS, THE UNION HELD A MEETING IN
SEPTEMBER ATTENDED BY UNION OFFICIALS, COMPANY EMPLOYEES, AND
REPRESENTATIVES OF THE CALIFORNIA FAIR EMPLOYMENT PRACTICES COMMITTEE
(FEPC) AND THE LOCAL ANTIPOVERTY AGENCY.  THE SECRETARY-TREASURER OF
THE UNION ANNOUNCED THAT THE UNION HAD CONCLUDED THAT THE COMPANY WAS
DISCRIMINATING, AND THAT IT WOULD PROCESS EVERY SUCH GRIEVANCE THROUGH
TO ARBITRATION IF NECESSARY.  TESTIMONY ABOUT THE COMPANY'S PRACTICES
WAS TAKEN AND TRANSCRIBED BY A COURT REPORTER, AND THE NEXT DAY THE
UNION NOTIFIED THE COMPANY OF ITS FORMAL CHARGE AND DEMANDED THAT THE
JOINT UNION-MANAGEMENT ADJUSTMENT BOARD BE CONVENED "TO HEAR THE ENTIRE
CASE." 

AT THE SEPTEMBER MEETING SOME OF THE COMPANY'S EMPLOYEES HAD
EXPRESSED THEIR VIEW THAT THE CONTRACT PROCEDURES WERE INADEQUATE TO
HANDLE A SYSTEMIC GRIEVANCE OF THIS SORT; THEY SUGGESTED THAT THE UNION
INSTEAD BEGIN PICKETING THE STORE IN PROTEST.  JOHNSON EXPLAINED THAT
THE COLLECTIVE AGREEMENT BOUND THE UNION TO ITS PROCESSES AND EXPRESSED
HIS VIEW THAT SUCCESSFUL GRIEVANTS WOULD HE HELPING NOT ONLY THEMSELVES
BUT ALL OTHERS WHO MIGHT BE THE VICTIMS OF INVIDIOUS DISCRIMINATION AS
WELL.  THE FEPC AND ANTIPOVERTY AGENCY REPRESENTATIVES OFFERED THE SAME
ADVICE.  NONETHELESS, WHEN THE ADJUSTMENT BOARD MEETING CONVENED ON
OCTOBER 16, JAMES JOSEPH HOLLINS, TOM HAWKINS, AND TWO OTHER EMPLOYEES
WHOSE TESTIMONY THE UNION HAD INTENDED TO ELICIT REFUSED TO PARTICIPATE
IN THE GRIEVANCE PROCEDURE.  INSTEAD, HOLLINS READ A STATEMENT
OBJECTING TO RELIANCE ON CORRECTION OF INDIVIDUAL INEQUITIES AS AN
APPROACH TO THE PROBLEM OF DISCRIMINATION AT THE STORE AND DEMANDING
THA THE PRESIDENT OF THE COMPANY MEET WITH THE FOUR PROTESTANTS TO WORK
OUT A BROADER AGREEMENT FOR DEALING WITH THE ISSUE AS THEY SAW IT.  THE
FOUR EMPLOYEES THEN WALKED OUT OF THE HEARING. 

HOLLINS ATTEMPTED TO DISCUSS THE QUESTION OF RACIAL DISCRIMINATION
WITH THE COMPANY PRESIDENT SHORTLY AFTER THE INCIDENTS OF OCTOBER 16. 
THE PRESIDENT REFUSED TO BE DRAWN INTO SUCH A DISCUSSION BUT SUGGESTED
TO HOLLINS THAT HE SEE THE PERSONNEL DIRECTOR ABOUT THE MATTER. 
HOLLINS, WHO HAD SPOKEN TO THE PERSONNEL DIRECTOR BEFORE, MADE NO
EFFORT TO DO SO AGAIN.  RATHER, HE AND HAWKINS AND SEVERAL OTHER
DISSIDENT EMPLOYEES HELD A PRESS CONFERENCE ON OCTOBER 22 AT WHICH THEY
DENOUNCED THE STORE'S EMPLOYMENT POLICY AS RACIST, REITERATED THEIR
DESIRE TO DEAL DIRECTLY WITH "THE TOP MANAGEMENT" OF THE COMPANY OVER
MINORITY EMPLOYMENT CONDITIONS, AND ANNOUNCED THEIR INTENTION TO PICKET
AND INSTITUTE A BOYCOTT OF THE STORE.  ON SATURDAY, NOVEMBER 2,
HOLLINS, HAWKINS, AND AT LEAST TWO OTHER EMPLOYEES PICKETED THE STORE
THROUGHOUT THE DAY AND DISTRIBUTED AT THE ENTRANCE HANDBILLS URGING
CONSUMERS NOT TO PATRONIZE THE STORE.  /2/ JOHNSON ENCOUNTERED THE
PICKETING EMPLOYEES, AGAIN URGED THEM TO RELY ON THE GRIEVANCE PROCESS,
AND WARNED THAT THEY MIGHT BE FIRED FOR THEIR ACTIVITIES.  THE PICKETS,
HOWEVER, WERE NOT DISSUADED, AND THEY CONTINUED TO PRESS THEIR DEMAND
TO DEAL DIRECTLY WITH THE COMPANY PRESIDENT.  /3/ 

ON NOVEMBER 7, HOLLINS AND HAWKINS WERE GIVEN WRITTEN WARNINGS THAT
A REPETITION OF THE PICKETING OR PUBLIC STATEMENTS ABOUT THE COMPANY
COULD LEAD TO THEIR DISCHARGE.  /4/ WHEN THE CONDUCT WAS REPEATED THE
FOLLOWING SATURDAY, THE TWO EMPLOYEES WERE FIRED. 

WESTERN ADDITION COMMUNITY ORGANIZATION (HEREINAFTER RESPONDENT), A
LOCAL CIVIL RIGHTS ASSOCIATION OF WHICH HOLLINS AND HAWKINS WERE
MEMBERS, FILED A CHARGE AGAINST THE COMPANY WITH THE NATIONAL LABOR
RELATIONS BOARD.  THE BOARD'S GENERAL COUNSEL SUBSEQUENTLY ISSUED A
COMPLAINT ALLEGING THAT IN DISCHARGING THE TWO THE COMPANY HAD VIOLATED
8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 61 STAT. 140,
29 U.S.C. 158(A)(1).  AFTER A HEARING, THE NLRB TRIAL EXAMINER FOUND
THAT THE DISCHARGED EMPLOYEES HAD BELIEVED IN GOOD FAITH THAT THE
COMPANY WAS DISCRIMINATING AGAINST MINORITY EMPLOYEES, AND THAT THEY
HAD RESORTED TO CONCERTED ACTIVITY ON THE BASIS OF THAT BELIEF.  HE
CONCLUDED, HOWEVER, THAT THEIR ACTIVITY WAS NOT PROTECTED BY 7 OF THE
ACT AND THAT THEIR DISCHARGES DID NOT, THEREFORE, VIOLATE 8(A)(1). 

THE BOARD, AFTER ORAL ARGUMENT, ADOPTED THE FINDINGS AND CONCLUSIONS
OF ITS TRIAL EXAMINER AND DISMISSED THE COMPLAINT.  192 N.L.R.B. 173. 
AMONG THE FINDINGS ADOPTED BY THE BOARD WAS THAT THE DISCHARGED
EMPLOYEES' COURSE OF CONDUCT. 

"WAS NO MERE PRESENTATION OF A GRIEVANCE BUT NOTHING SHORT OF A
DEMAND THAT THE (COMPANY) BARGAIN WITH THE PICKETING EMPLOYEES FOR THE
ENTIRE GROUP OF MINORITY EMPLOYEES."  /5/ THE BOARD CONCLUDED THAT
PROTECTION OF SUCH AN ATTEMPT TO BARGAIN WOULD UNDERMINE THE STATUTORY
SYSTEM OF BARGAINING THROUGH AN EXCLUSIVE, ELECTED REPRESENTATIVE,
IMPEDE ELECTED UNIONS' EFFORTS AT BETTERING THE WORKING CONDITIONS OF
MINORITY EMPLOYEES, "AND PLACE ON THE EMPLOYER AN UNREASONABLE BURDEN
OF ATTEMPTING TO PLACATE SELF-DESIGNATED REPRESENTATIVES OF MINORITY
GROUPS WHILE ABIDING BY THE TERMS OF A VALID BARGAINING AGREEMENTS AND
ATTEMPTING IN GOOD FAITH TO MEET WHATEVER DEMANDS THE BARGAINING
REPRESENTATIVE PUT FORTH UNDER THAT AGREEMENT."  /6/ 

ON RESPONDENT'S PETITION FOR REVIEW THE COURT OF APPEALS REVERSED
AND REMANDED.  THE COURT WAS OF THE VIEW THAT CONCERTED ACTIVITY
DIRECTED AGAINST RACIAL DISCRIMINATION ENJOYS A "UNIQUE STATUS" BY
VIRTUE OF THE NATIONAL LABOR POLICY AGAINST DISCRIMINATION, AS
EXPRESSED IN BOTH THE NLRA, SEE UNITED PACKINGHOUSE WORKERS V. NLRB,
135 U.S.APP.D.C. 111, 416 F.2D 1126, CERT. DENIED, 396 U.S. 903 (1969),
AND IN TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 253, AS
AMENDED, 42 U.S.C. 2000E ET SEQ., AND THAT THE BOARD HAD NOT ADEQUATELY
TAKEN ACCOUNT OF THE NECESSITY TO ACCOMODATE THE EXCLUSIVE BARGAINING
PRINCIPLE OF THE NLRA TO THE NATIONAL POLICY OF PROTECTING ACTION TAKEN
IN OPPOSITION TO DISCRIMINATION FROM EMPLOYER RETALIATION.  /7/  THE
COURT RECOGNIZED THAT PROTECTION OF THE MINORITY-GROUP CONCERTED
ACTIVITY INVOLVED IN THIS CASE WOULD INTERFERE TO SOME EXTENT WITH THE
ORDERLY COLLECTIVE-BARGAINING PROCESS, BUT IT CONSIDERED THE DISRUPTIVE
EFFECT ON THAT PROCESS TO BE OUT-WEIGHED WHERE PROTECTION OF MINORITY
ACTIVITY IS NECESSARY TO FULL AND IMMEDIATE REALIZATION OF THE POLICY
AGAINST DISCRIMINATION.  IN FORMULATING A STANDARD FOR DISTINGUISHING
BETWEEN PROTECTED AND UNPROTECTED ACTIVITY, THE MAJORITY HELD THAT THE
"BOARD SHOULD INQUIRE, IN CASES SUCH AS THIS, WHETHER THE UNION WAS
ACTUALLY REMEDYING THE DISCRIMINATION TO THE FULLEST EXTENT POSSIBLE,
BY THE MOST EXPEDIENT AND EFFICACIOUS MEANS.  WHERE THE UNION'S EFFORTS
FALL SHORT OF THIS HIGH STANDARD, THE MINORITY GROUP'S CONCERTED
ACTIVITIES CANNOT LOSE (THEIR) SECTION 7 PROTECTION."  /8/ ACCORDINGLY,
THE COURT REMANDED THE CASE FOR THE BOARD TO MAKE THIS DETERMINATION
AND, IF IT FOUND IN FAVOR OF THE EMPLOYEES, TO CONSIDER WHETHER THEIR
PARTICULAR TACTIES WERE SO DISLOYAL TO THEIR EMPLOYER AS TO DEPRIVE
THEM OF 7 PROTECTION UNDER OUR DECISION IN NLRB V. ELECTRICAL WORKERS,
346 U.S. 464 (1953).  /9/

        II 

BEFORE TURNING TO THE CENTRAL QUESTIONS OF LABOR POLICY RAISED BY
THESE CASES, IT IS IMPORTANT TO HAVE FIRMLY IN MIND THE CHARACTER OF
THE UNDERLYING CONDUCT TO WHICH WE APPLY THEM.  AS STATED, THE TRIAL
EXAMINER AND THE BOARD FOUND THAT THE EMPLOYEES WERE DISCHARGED FOR
ATTEMPTING TO BARGAIN WITH THE COMPANY OVER THE TERMS AND CONDITIONS OF
EMPLOYMENT AS THEY AFFECTED RACIAL MINORITIES.  ALTHOUGH THE COURT OF
APPEALS EXPRESSLY DECLINED TO SET ASIDE THIS FINDING, /10/ RESPONDENT
HAS DEVOTED 

NSIDERABLE EFFORT TO ATTACKING IT IN THIS COURT, /11/ ON THE THEORY
THAT THE EMPLOYEES WERE ATTEMPTING ONLY TO PRESENT A GRIEVANCE TO THEIR
EMPLOYER WITHIN THE MEANING OF THE FIRST PROVISO TO 9(A).  /12/  WE SEE
NO OCCASION TO DISTURB THE FINDING OF THE BOARD.  UNIVERSAL CAMERA
CORP. V. NLRB, 340 U.S. 474, 491 (1951).  THE ISSUE, THEN, IS WHETHER
SUCH ATTEMPTS TO ENGAGE IN SEPARATE BARGAINING ARE PROTECTED BY 7 OF
THE ACT OR PROSCRIBED BY 9(A). 

        A 

OF INDUSTRIAL SELF-DISCRIMINATION, "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," AS WELL AS THE RIGHT TO REFRAIN FROM THESE
ACTIVITIES.  THESE ARE, FOR THE MOST PART, COLLECTIVE RIGHTS, RIGHTS TO
ACT IN CONCERT WITH ONE'S FELLOW EMPLOYEES; THEY ARE PROTECTED NOT FOR
THEIR OWN SAKE BUT AS AN INSTRUMENT OF THE NATIONAL LABOR POLICY OF
MINIMIZING INDUSTRIAL STRIFE "BY ENCOURAGING THE PRACTICE AND PROCEDURE
OF COLLECTIVE BARGAINING."  29 U.S.C. 151. 

CENTRAL TO THE POLICY OF FOSTERING COLLECTIVE BARGAINING, WHERE THE
EMPLOYEES ELECT THAT COURSE, IS THE PRINCIPLE OF MAJORITY RULE.  SEE
NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1 (1937).  IF THE
MAJORITY OF A UNIT CHOOSES UNION REPRESENTATION, THE NLRA PERMITS IT TO
BARGAIN WITH ITS EMPLOYER TO MAKE UNION MEMBERSHIP A CONDITION OF
EMPLOYMENT, THEREBY IMPOSING ITS CHOICE UPON THE MINORITY.  29 U.S.C.
157, 158(A)(3).  IN ESTABLISHING A REGIME OF MAJORITY RULE, CONGRESS
SOUGHT TO SECURE TO ALL MEMBERS OF THE UNIT THE BENEFITS OF THEIR
COLLECTIVE STRENGTH AND BARGAINING POWER, /13/ IN FULL AWARENESS THAT
THE SUPERIOR STRENGTH OF SOME INDIVIDUALS OR GROUPS MIGHT BE
SUBORDINATED TO THE INTEREST OF THE MAJORITY.  VACA V. SIPES, 386 U.S.
171, 182 (1967); J. I. CASE CO. V. NLRB, 321 U.S. 332, 338 - 339
(1944); REP.  H. R. NO. 972, 74TH CONG., 1ST SESS., 18 (1935).  AS A
RESULT, "(THE COMPLETE SATISFACTION OF ALL WHO ARE REPRESENTED IS
HARDLY TO BE EXPECTED."  FORD MOTOR CO. V. HUFFMAN, 345 U.S. 330, 338
(1953). 

THE COURT MOST RECENTLY HAD OCCASION TO RE-EXAMINE THE UNDERPINNINGS
OF THE MAJORITARIAN PRINCIPLE IN NLRB V. ALLIS-CHALMERS MFG. CO., 388
U.S. 175 (1967).  IN THAT CASE EMPLOYEES IN TWO LOCAL UNIONS HAD STRUCK
THEIR COMMON EMPLOYER TO ENFORCE THEIR BARGAINING DEMANDS FOR A NEW
CONTRACT.  IN EACH LOCAL AT LEAST THE TWO-THIRDS MAJORITY REQUIRED BY
THE CONSTITUTION OF THE INTERNATIONAL UNION HAD VOTED FOR THE STRIKE,
BUT SOME MEMBERS NONETHELESS CROSSED THE PICKET LINES AND CONTINUED TO
WORK.  WHEN THE UNION LATER TRIED AND FINED THESE MEMBERS, THE EMPLOYER
CHARGED THAT IT HAD VIOLATED 8(B)(1)(A) BY RESTRAINING OR COERCING THE
EMPLOYEES IN THE EXERCISE OF THEIR 7 RIGHT TO REFRAIN FROM CONCERTED
ACTIVITIES.  IN HOLDING THAT THE UNIONS HAD NOT COMMITTED AN UNFAIR
LABOR PRACTICE BY DISCIPLINING THE DISSIDENT MEMBERS, WE APPROACHED THE
LITERAL LANGUAGE OF 8(B)(1)(A) WITH AN EYE TO THE POLICY WITHIN WHICH
IT MUST BE READ: 

     "NATIONAL LABOR POLICY HAS BEEN BUILT ON THE PREMISE THAT BY

  POOLING THEIR ECONOMIC STRENGTH AND ACTING THROUGH A LABOR

  ORGANIZATION FREELY CHOSEN BY THE MAJORITY, THE EMPLOYEES OF AN

  APPROPRIATE UNIT HAVE THE MOST EFFECTIVE MEANS OF BARGAINING FOR

  IMPROVEMENTS IN WAGES, HOURS, AND WORKING CONDITIONS.  THE POLICY

  THEREFORE EXTINGUISHES THE INDIVIDUAL EMPLOYEE'S POWER TO ORDER

HIS OWN RELATIONS WITH HIS EMPLOYER AND CREATES A POWER VESTED IN

  THE CHOSEN REPRESENTATIVE TO ACT IN THE INTERESTS OF ALL

  EMPLOYEES.  'CONGRESS HAS SEEN FIT TO CLOTHE THE BARGAINING

  REPRESENTATIVE WITH POWERS COMPARABLE TO THOSE POSSESSED BY A

  LEGISLATIVE BODY BOTH TO CREATE AND RESTRICT THE RIGHTS OF THOSE

  WHOM IT REPRESENTS.  . . .'  STEELE V. LOUISVILLE & N.R. CO., 323

  U.S. 192, 202.  THUS ONLY THE UNION MAY CONTRACT THE EMPLOYEE'S

  TERMS AND CONDITIONS OF EMPLOYMENT, AND PROVISIONS FOR PROCESSING

  HIS GRIEVANCES; THE UNION MAY EVEN BARGAIN AWAY HIS RIGHT TO

STRIKE DURING THE CONTRACT TERM.  . . ."  388 U.S.,AT 180

(FOOTNOTES OMITTED).  /14/ 

IN VESTING THE REPRESENTATIVES OF THE MAJORITY WITH THIS BROAD POWER
CONGRESS DID NOT, OF COURSE, AUTHORIZE A TYRANNY OF THE MAJORITY OVER
MINORITY INTERESTS.  FIRST, IT CONFINED THE EXERCISE OF THESE POWERS TO
THE CONTEXT OF A "UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE
BARGAINING," I.E., A GROUP OF EMPLOYEES WITH A SUFFICIENT COMMONALITY
OF CIRCUMSTANCES TO ENSURE AGAINST THE SUBMERGENCE OF A MINORITY WITH
DISTINCTIVELY DIFFERENT INTERESTS IN THE TERMS AND CONDITIONS OF THEIR
EMPLOYMENT.  SEE CHEMICAL WORKERS V. PITTSBURGH GLASS, 404 U.S. 157,
171 (1971).  SECOND, IT UNDERTOOK IN THE 1959 LANDRUM-GRIFFIN
AMENDMENTS, 73 STAT. 519, TO ASSURE THAT MINORITY VOICES ARE HEARD AS
THEY ARE IN THE FUNCTIONING OF A DEMOCRATIC INSTITUTION.  THIRD, WE
HAVE HELD, BY THE VERY NATURE OF THE EXCLUSIVE BARGAINING
REPRESENTATIVE'S STATUS AS REPRESENTATIVE OF ALL UNIT EMPLOYEES,
CONGRESS IMPLICITY IMPOSED UPON IT A DUTY FAIRLY AND IN GOOD FAITH TO
REPRESENT THE INTERESTS OF MINORITIES WITHIN THE UNIT.  VACA V. SIPES,
SUPRA; WALLACE CORP. V. NLRB, 323 U.S. 248 (1944); CF. STEELE V.
LOUISVILLE & N.R. CO., 323 U.S. 192 (1944).  AND THE BOARD HAS TAKEN
THE POSITION THAT A UNION'S REFUSAL TO PROCESS GRIEVANCES AGAINST
RACIAL DISCRIMINATION, IN VIOLATION OF THAT DUTY, IS AN UNFAIR LABOR
PRACTICE.  HUGHES TOOL CO., 147 N.L.R.B. 1573 (1964); SEE MIRANDA FUEL
CO., 140 N.L.R.B. 181 (1962), ENFORCEMENT DENIED, 326 F.2D 172 (CA2
1963).  INDEED, THE BOARD HAS ORDERED A UNION IMPLICATED BY A
COLLECTIVE-BARGAINING AGREEMENT IN DISCRIMINATION WITH AN EMPLOYER TO
PROPOSE SPECIFIC CONTRACTUAL PROVISIONS TO PROHIBIT RACIAL
DISCRIMINATION.  SEE LOCAL UNION NO. 12, UNITED RUBBER WORKERS OF
AMERICA V. NLRB, 368 F.2D 12 (CA5 1966) (ENFORCEMENT GRANTED). 

        B 

AGAINST THIS BACKGROUND OF LONG AND CONSISTANT ADHERENCE TO THE
PRINCIPLE OF EXCLUSIVE REPRESENTATION TEMPERED BY SAFEGUARDS FOR THE
PROTECTION OF MINORITY INTERESTS, RESPONDENT URGES THIS COURT TO
FASHION A LIMITED EXCEPTION TO THAT PRINCIPLE:  EMPLOYEES WHO SEEK TO
BARGAIN SEPARATELY WITH THEIR EMPLOYER AS TO THE ELIMINATION OF
RACIALLY DISCRIMINATORY EMPLOYMENT PRACTICES PECULIARLY AFFECTING THEM,
/15/ SHOULD BE FREE FROM THE CONSTRAINTS OF THE EXCLUSIVITY PRINCIPLE
OF 9(A).  ESSENTIALLY BECAUSE ESTABLISHED PROCEDURES UNDER TITLE VII
OR, AS IN THIS CASE, A GRIEVANCE MACHINERY, ARE TOO TIME CONSUMING, THE
NATIONAL LABOR POLICY AGAINST DISCRIMINATION REQUIRES THIS EXCEPTION,
RESPONDENT ARGUES, AND ITS ADOPTION WOULD NOT UNDULY COMPROMISE THE
LEGITIMATE INTERESTS OF EITHER UNIONS OR EMPLOYERS.  /16/ 

PLAINLY, NATIONAL LABOR POLICY EMBODIES THE PRINCIPLES OF
NONDISCRIMINATION AS A MATTER OF HIGHEST PRIORITY, ALEXANDER V. GARDNER
DENVER CO., 415 U.S. 36, 47 (1974), AND IT IS A COMMONPLACE THAT WE
MUST CONSTRUE THE NLRA IN LIGHT OF THE BROAD NATIONAL LABOR POLICY OF
WHICH IT IS A PART.  SEE TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S.
448, 456 - 458 (1957).  THESE GENERAL PRINCIPLES DO NOT AID RESPONDENT,
HOWEVER, AS IT IS FAR FROM CLEAR THAT SEPARATE BARGAINING IS NECESSARY
TO HELP ELIMINATE DISCRIMINATION.  INDEED, AS THE FACTS OF THIS
LITIGATION DEMONSTRATE, THE PROPOSED REMEDY MIGHT HAVE JUST THE
OPPOSITE EFFECT.  THE COLLECTIVE-BARGAINING AGREEMENT INVOLVED HERE
PROHIBITED WITHOUT QUALIFICATION ALL MANNER OF INVIDIOUS DISCRIMINATION
AND MADE ANY CLAIMED VIOLATION OF GRIEVABLE ISSUE.  THE GRIEVANCE
PROCEDURE IS DIRECTED PRECISELY AT DETERMINING WHETHER DISCRIMINATION
HAS OCCURRED.  /17/ THAT ORDERLY DETERMINATION, IF AFFIRMATIVE, COULD
LEAD TO AN ARBITRAL AWARD ENFORCEABLE IN COURT.  /18/ NOR IS THERE ANY
REASON TO BELIEVE THAT THE PROCESSING OF GRIEVANCES IS INHERENTLY
LIMITED TO THE CORRECTION OF INDIVIDUAL CASES OF DISCRIMINATION.  QUITE
APART FROM THE ESEENTIALLY CONTRACTUAL QUESTION OF WHETHER THE UNION
COULD GRIEVE AGAINST A "PATTERN OR PRACTICE" IT DEEMS INCONSISTENT WITH
THE NONDISCRIMINATION CLAUSE OF THE CONTRACT, ONE WOULD HARDLY EXPECT
AN EMPLOYER TO CONTINUE IN EFFECT AN EMPLOYMENT PRACTICE THAT ROUTINELY
RESULTS IN ADVERSE ARBITRAL DECISIONS.  /19/ 

THE DECISION BY A HANDFUL OF EMPLOYEES TO BYPASS THE GRIEVANCE
PROCEDURE IN FAVOR OF ATTEMPTING TO BARGAIN WITH THEIR EMPLOYER, BY
CONTRAST, MAY OR MAY NOT BE PREDICATED UPON THE ACTUAL EXISTENCE OF
DISCRIMINATION.  AN EMPLOYER CONFRONTED WITH BARGAINING DEMANDS FROM
EACH OF SEVERAL MINORITY GROUPS WOULD NOT NECESSARILY, OR EVEN
PROBABLY, BE ABLE TO AGREE TO REMEDIAL STEPS SATISFACTORY TO ALL AT
ONCE.  COMPETING CLAIMS ON THE EMPLOYER'S ABILITY TO ACCOMODATE EACH
GROUP'S DEMANDS, E.G., FOR REASSIGNMENTS AND PROMOTIONS TO A LIMITED
NUMBER OF POSITIONS, COULD ONLY SET ONE GROUP AGAINST THE OTHER EVEN IF
IT IS NOT THE EMPLOYER'S INTENTION TO DIVIDE AND OVERCOME THEM.  HAVING
DIVIDED THEMSELVES, THE MINORITY EMPLOYEES WILL NOT BE IN POSITION TO
ADVANCE THEIR CAUSE UNLESS IT BE BY RECOURSE SERIATIM TO ECONOMIC
COERCION WHICH CAN ONLY HAVE THE EFFECT OF FURTHER DIVIDING THEM ALONG
RACIAL OR OTHER LINES.  /20/ NOR IS THE SITUATION MATERIALLY DIFFERENT
WHERE, AS APPARENTLY HAPPENED HERE, SELF-DESIGNATED REPRESENTATIVES
PURPORT TO SPEAK FOR ALL GROUPS THAT MIGHT CONSIDER THEMSELVES TO BE
VICTIMS OF DISCRIMINATION.  EVEN IF IN ACTUAL BARGAINING THE VARIOUS
GROUPS DID NOT PERCEIVE THEIR INTERESTS AS DIVERGENT AND FURTHER
SUBDIVIDE THEMSELVES, THE EMPLOYER WOULD BE BOUND TO BARGAIN WITH THEM
IN A FIELD LARGELY PRE-EMPTED BY THE CURRENT COLLECTIVE-BARGAINING
AGREEMENT WITH THE ELECTED BARGAINING REPRESENTATIVE.  IN THIS INSTANCE
WE DO NOT KNOW PRECISELY WHAT FORM THE DEMANDS ADVANCED BY HOLLINS,
HAWKINS, ET AL. WOULD TAKE, BUT THE NATURE OF THE GRIEVANCE THAT
MOTIVATED THEM INDICATES THAT THE DEMANDS WOULD HAVE INCLUDED THE
TRANSFER OF SOME MINORITY EMPLOYEES TO SALES AREAS IN WHICH HIGHER
COMMISSIONS WERE PAID.  /21/ YET THE COLLECTIVE-BARGAINING AGREEMENT
PROVIDED THAT NO EMPLOYEE WOULD BE TRANSFERRED FROM A HIGHER-PAYING TO
A LOWER-PAYING CLASSIFICATION EXCEPT BY CONSENT OR IN THE COURSE OF A
LAYOFF OR REDUCTION IN FORCE.  /22/ THE POTENTIAL FOR CONFLICT BETWEEN
THE MINORITY AND OTHER EMPLOYEES IN THIS SITUATION IS MANIFEST.  WITH
EACH GROUP ABLE TO ENFORCE ITS CONFLICTING DEMANDS--THE INCUMBENT
EMPLOYEES BY RESORT TO CONTRACTUAL PROCESSES AND THE MINORITY EMPLOYEES
BY ECONOMIC COERCION--  THE PROBABILITY OF STRIFE AND DEADLOCK, IS
HIGH; THE LIKELIHOOD OF MAKING HEADWAY AGAINST DISCRIMINATORY PRACTICES
WOULD BE MINIMAL.  SEE GATEWAY COAL CO. V. MINE WORKERS, 414 U.S. 368,
379 (1974). 

WHAT HAS BEEN SAID HERE IN EVALUATING RESPONDENT'S CLAIM THAT THE
POLICY AGAINST DISCRIMINATION REQUIRES 7 PROTECTION FOR CONCERTED
EFFORTS AT MINORITY BARGAINING HAS OBVIOUS IMPLICATIONS FOR THE RELATED
CLAIM THAT LEGITIMATE EMPLOYER AND UNION INTERESTS WOULD NOT BE UNDULY
COMPROMISED THEREBY.  THE COURT BELOW MINIMIZED THE IMPACT ON THE UNION
IN THIS CASE BY NOTING THAT IT WAS NOT WORKING AT CROSS-PURPOSES WITH
THE DISSIDENTS, AND THAT INDEED IT COULD NOT DO SO CONSISTENT WITH ITS
DUTY OF FAIR REPRESENTATION AND PERHAPS ITS OBLIGATIONS UNDER TITLE
VII.  AS TO THE COMPANY, ITS OBLIGATIONS UNDER TITLE VII ARE CITED FOR
THE PROPOSITION THAT IT COULD HAVE NO LEGITIMATE OBJECTION TO
BARGAINING WITH THE DISSIDENTS IN ORDER TO ACHIEVE FULL COMPLIANCE WITH
THAT LAW. 

THIS ARGUMENT CONFUSES THE EMPLOYEES' SUBSTANTIVE RIGHT TO BE FREE
OF RACIAL DISCRIMINATION WITH THE PROCEDURES AVAILABLE UNDER THE NLRA
FOR SECURING THESE RIGHTS.  WHETHER THEY ARE THOUGHT TO DEPEND UPON
TITLE VII OR HAVE AN INDEPENDENT SOURCE IN THE NLRA, /23/ THEY CANNOT
BE PURSUED AT THE EXPENSE OF THE ORDERLY COLLECTIVE-BARGAINING PROCESS
CONTEMPLATED BY THE NLRA.  THE ELIMINATION OF DISCRIMINATION AND ITS
VESTIGES IS AN APPROPRIATE SUBJECT OF BARGAINING, AND AN EMPLOYER MAY
HAVE NO OBJECTION TO INCORPORATING INTO A COLLECTIVE AGREEMENT THE
SUBSTANCE OF HIS OBLIGATION NOT TO DISCRIMINATE IN PERSONNEL DECISIONS;
THE COMPANY HERE HAS DONE AS MUCH, MAKING ANY CLAIMED DERELICTION A
MATTER SUBJECT TO THE GRIEVANCE-ARBITRATION MACHINERY AS WELL AS TO THE
PROCESSES OF TITLE VII.  BUT THAT DOES NOT MEAN THAT AN EMPLOYER MAY
NOT HAVE STRONG AND LEGITIMATE OBJECTIONS TO BARGAINING ON SEVERAL
FRONTS OVER THE IMPLEMENTATION OF THE RIGHT TO BE FREE OF
DISCRIMINATION FOR SOME OF THE REASONS SET FORTH ABOVE.  SIMILARLY,
WHILE A UNION CANNOT LAWFULLY BARGAIN FOR THE ESTABLISHMENT OR
CONTINUATION OF DISCRIMINATORY PRACTICES, SEE STEELE V. LOUISVILLE &
N.R. CO., 323 U.S. 192 (1944); 42 U.S.C. 2000E - 2(C)(3), IT HAS A
LEGITIMATE INTEREST IN PRESENTING A UNITED FRONT ON THIS AS ON OTHER
ISSUES AND IN NOT SEEING ITS STRENGTH DISSIPATED AND ITS STATURE
DENIGRATED BY SUBGROUPS WITHIN THE UNIT SEPARATELY PURSUING WHAT THEY
SEE AS SEPARATE INTERESTS.  WHEN UNION AND EMPLOYER ARE NOT RESPONSIVE
TO THEIR LEGAL OBLIGATIONS, THE BARGAIN THEY HAVE STRUCK MUST YIELD PRO
TANTO TO THE LAW, WHETHER BY MEANS OF CONCILIATION THROUGH THE OFFICERS
OF THE EEOC, OR BY MEANS OF FEDERAL COURT ENFORCEMENT AT THE INSTANCE
OF EITHER THAT AGENCY OR THE PARTY CLAIMING TO BE AGGRIEVED. 

ACCORDINGLY, WE THINK NEITHER ASPECT OF RESPONDENT'S CONTENTION IN
SUPPORT OF A RIGHT TO SHORT-CIRCUIT ORDERLY, ESTABLISHED PROCESSES FOR
ELIMINATING DISCRIMINATION IN EMPLOYMENT IS WELL-FOUNDED.  THE POLICY
OF INDUSTRIAL SELF-DETERMINATION AS EXPRESSED IN 7 DOES NOT REQUIRE
FRAGMENTATION OF THE BARGAINING UNIT ALONG RACIAL OR OTHER LINES IN
ORDER TO CONSIST WITH THE NATIONAL LABOR POLICY AGAINST
DISCRIMINATION.  AND IN THE FACE OF SUCH FRAGMENTATION, WHATEVER ITS
EFFECT ON DISCRIMINATORY PRACTICES, THE BARGAINING PROCESS THAT THE
PRINCIPLE OF EXCLUSIVE REPRESENTATION IS MEANT TO LUBRICATE COULD NOT
ENDURE UNHAMPERED. 

        III 

EVEN IF THE NLRA, WHEN READ IN THE CONTEXT OF THE GENERAL POLICY
AGAINST DISCRIMINATION, DOES NOT SANCTION THESE EMPLOYEES' ATTEMPT TO
BARGAIN WITH THE COMPANY, IT IS CONTENDED THAT IT MUST DO SO IF A
SPECIFIC ELEMENT OF THAT POLICY IS TO BE PRESERVED.  THE ELEMENT IN
QUESTION IS THE CONGRESSIONAL POLICY OF PROTECTING FROM EMPLOYER
REPRISAL EMPLOYEE EFFORTS TO OPPOSE UNLAWFUL DISCRIMINATION, AS
EXPRESSED IN 704(A) OF TITLE VII.  SEE N. 7, SUPRA.  SINCE THE
DISCHARGED EMPLOYEES HERE HAD, BY THEIR OWN LIGHTS, "OPPOSED"
DISCRIMINATION, IT IS ARGUED THAT THEIR ACTIVITIES "FELL PLAINLY WITHIN
THE SCOPE OF," AND THEIR DISCHARGES THEREFORE VIOLATED, 704(A).  /24/
THE NOTION HERE IS THAT IF THE DISCHARGES DID NOT ALSO VIOLATE 8(A)(1)
OF THE NLRA, THEN THE INTEGRITY OF 704(A) WILL BE SERIOUSLY
UNDERMINED.  WE CANNOT AGREE. 

EVEN ASSUMING THAT 704(A) PROTECTS EMPLOYEES' PICKETING AND
INSTITUTING A CONSUMER BOYCOTT OF THEIR EMPLOYER, /25/ THE SAME CONDUCT
IS NOT NECESSARILY ENTITLED TO AFFIRMATIVE PROTECTION FROM THE NLRA. 
UNDER THE SCHEME OF THAT ACT, CONDUCT WHICH IS NOT PROTECTED CONCERTED
ACTIVITY MAY LAWFULLY FORM THE BASIS FOR THE PARTICIPANTS' DISCHARGE. 
THAT DOES NOT MEAN THAT THE DISCHARGE IS IMMUNE FROM ATTACK ON OTHER
STATUTORY GROUNDS IN AN APPROPRIATE CASE.  IF THE DISCHARGES IN THESE
CASES ARE VIOLATIVE OF 704(A) OF TITLE VII, THE REMEDIAL PROVISIONS OF
THAT TITLE PROVIDE THE MEANS BY WHICH HOLLINS AND HAWKINS MAY RECOVER
THEIR JOBS WITH BACK PAY.  42 U.S.C. 2000E - 5(G) (1970 ED.,SUPP. 
II). 

RESPONDENT OBJECTS THAT RELIANCE ON THE REMEDIES PROVIDED BY TITLE
VII IS INADEQUATE EFFECTIVELY TO SECURE THE RIGHTS CONFERRED BY TITLE
VII.  THERE ARE INDEED SIGNIGICANT DIFFERENCES BETWEEN PROCEEDINGS
INITIATED UNDER TITLE VII AND AN UNFAIR LABOR PRACTICE PROCEEDING. 
CONGRESS CHOSE TO ENCOURAGE VOLUNTARY COMPLIANCE WITH TITLE VII BY
EMPHASIZING CONCILIATORY PROCEDURES BEFORE FEDERAL COERCIVE POWERS
COULD BE INVOKED.  EVEN THEN IT DID NOT PROVIDE THE EEOC WITH THE POWER
OF DIRECT ENFORCEMENT, BUT MADE THE FEDERAL COURTS AVAILABLE TO THE
AGENCY OR INDIVIDUAL TO SECURE COMPLIANCE WITH TITLE VII.  SEE
ALEXANDER V. GARDNER-DENVER CO., 415 U.S.,AT 44 - 45.  BY CONTRAST,
ONCE THE GENERAL COUNSEL OF THE NLRB DECIDES TO ISSUE A COMPLAINT,
VINDICATION OF THE CHARGING PARTY'S STATUTORY RIGHTS BECOMES A PUBLIC
FUNCTION DISCHARGED AT PUBLIC EXPENSE, AND A FAVORABLE DECISION BY THE
BOARD BRINGS FORTH AN ADMINISTRATIVE ORDER.  AS A RESULT OF THESE AND
OTHER DIFFERENCES, WE ARE TOLD THAT RELIEF IS TYPICALLY AVAILABLE TO
THE PARTY FILING A CHARGE WITH THE NLRB IN A SIGNIFICANTLY SHORTER
TIME, AND WITH LESS RISK, THAN OBTAINS FOR ONE FILING A CHARGE WITH THE
EEOC.     WHATEVER ITS FACTUAL MERIT, THIS ARGUMENT IS PROPERLY
ADDRESSED TO THE CONGRESS AND NOT TO THIS COURT OR THE NLRB.  IN ORDER
TO HOLD THAT EMPLOYER CONDUCT VIOLATES 8(A)(1) OF THE NLRA BECAUSE IT
VIOLATES 704(A) OF TITLE VII, WE WOULD HAVE TO OVERRIDE A HOST OF
CONSCIOUSLY MADE DECISIONS WELL WITHIN THE EXCLUSIVE COMPETENCE OF THE
LEGISLATURE.  /26/ THIS OBVIOUSLY, WE CANNOT DO.
          REVERSED. 

/1/ SECTION 5B PROVIDED: 

"ANY ACT OF ANY EMPLOYER, REPRESENTATIVE OF THE UNION, OR ANY
EMPLOYEE THAT IS INTERFERING WITH THE FAITHFUL PERFORMANCE OF THIS
AGREEMENT, OR A HARMONIOUS RELATIONSHIP BETWEEN THE EMPLOYERS AND THE
UNION, MAY BE REFERRED TO THE ADJUSTMENT BOARD FOR SUCH ACTION AS THE
ADJUSTMENT BOARD DEEMS PROPER, AND IS PERMISSIVE WITHIN THIS
AGREEMENT."  APP.  100 - 101. 

UNION AND THREE MANAGEMENT MEMBERS.  SECTION 36C PROVIDED THAT IF ANY
MATTER REFERRED TO THE ADJUSTMENT BOARD REMAINED UNSETTLED AFTER SEVEN
DAYS, EITHER PARTY COULD INSIST THAT THE DISPUTE BE SUBMITTED TO FINAL
AND BINDING ARBITRATION.  APP. 101 - 102. 

/2/ THE FULL TEXT OF THE HANDBILL READ:

        "**BEWARE****BEWARE****BEWARE**

        "EMPORIUM SHOPPERS

        "'BOYCOTT IS ON' 'BOYCOTT IS ON' 'BOYCOTT IS ON' 

"FOR YEARS AT THE EMPORIUM BLACK, BROWN, YELLOW AND RED PEOPLE HAVE
WORKED AT THE LOWEST JOBS, AT THE LOWEST LEVELS.  TIME AND TIME AGAIN
WE HAVE SEEN INTELLIGENT, HARD WORKING BROTHERS AND SISTERS DENIED
PROMOTIONS AND RESPECT. 

"THE EMPORIUM IS A 20TH CENTURY COLONIAL PLANTATION.  THE BROTHERS
AND SISTERS ARE BEING TREATED THE SAME WAY AS OUR BROTHERS ARE BEING
TREATED IN THE SLAVE MINES OF AFRICA. 

"WHENEVER THE RACIST PIG AT THE EMPORIUM INJURES OR HARMS A BLACK
SISTER OR BROTHER, THEY INJURE AND INSULT ALL BLACK PEOPLE.  THE
EMPORIUM MUST PAY FOR THESE INSULTS.  THEREFORE, WE ENCOURAGE ALL OF
OUR PEOPLE TO TAKE THEIR MONEY OUT OF THIS RACIST STORE, UNTIL BLACK
PEOPLE HAVE FULL EMPLOYMENT AND ARE PROMOTED JUSTLY THROUGH OUT THE
EMPORIUM. 

"WE WELCOME THE SUPPORT OF OUR BROTHERS AND SISTERS FROM THE
CHURCHES, UNIONS, SORORITIES, FRATERNITIES, SOCIAL CLUBS, AFRO-AMERICAN
INSTITUTE, BLACK PANTHER PARTY, W.A.C.O. AND THE POOR PEOPLES
INSTITUTE."  APP.  107. 

/3/ JOHNSON TESTIFIED THAT HOLLINS "INFORMED ME THAT THE ONLY ONE
THEY WANTED TO TALK TO WAS MR. BATCHELDER (THE COMPANY PRESIDENT) AND I
INFORMED HIM THAT WE HAD CONCLUDED REGOTIATIONS IN 1967 AND I WAS A
SPOKESMAN FOR THE UNION AND REPRESENTED A FEW THOUSAND CLERKS AND I
HAVE NEVER MET MR. BATCHELDER.  . . ."  APP. 76. 

/4/ THE WARNING GIVEN TO HOLLINS READ: 

"ON OCTOBER 22, 1968, YOU ISSUED A PUBLIC STATEMENT AT A PRESS
CONFERENCE TO WHICH ALL NEWSPAPERS, RADIO, AND TV STATIONS WERE
INVITED.  THE CONTENTS OF THIS STATEMENT WERE SUBSTANTIALLY THE SAME AS
THOSE SET FORTH IN THE SHEET ATTACHED.  THIS STATEMENT WAS BROADCAST ON
CHANNEL 2 ON OCTOBER 22, 1968 AND STATION KDIA. 

"ON NOVEMBER 2ND YOU DISTRIBUTED COPIES OF THE ATTACHED STATEMENT TO
NEGRO CUSTOMERS AND PROSPECTIVE CUSTOMERS, AND TO OTHER PERSONS PASSING
BY IN FRONT OF THE EMPORIUM. 

"THESE STATEMENTS ARE UNTRUE AND ARE INTENDED TO AND WILL, IF
CONTINUED INJURE THE REPUTATION OF THE EMPORIUM. 

"THERE ARE AMPLE LEGAL REMEDIES TO CORRECT ANY DISCRIMINATION YOU
MAY CLAIM TO EXIST.  THEREFORE, WE VIEW YOUR ACTIVITIES AS A DELIBERATE
AND UNJUSTIFIED ATTEMPT TO INJURE YOUR EMPLOYER. 

"THIS IS TO INFORM YOU THAT YOU MAY BE DISCHARGED IF YOU REPEAT ANY
OF THE ABOVE ACTS OR MAKE ANY SIMILAR PUBLIC STATEMENT." 

THAT GIVEN TO HAWKINS WAS THE SAME EXCEPT THAT THE FIRST PARAGRAPH
WAS NOT INCLUDED.  APP. 106. 

/5/ 192 N.L.R.B.,AT 185.  THE EVIDENCE MARSHALED IN SUPPORT OF THIS
FINDING CONSISTED OF HOLLINS' MEETING WITH THE COMPANY PRESIDENT IN
WHICH HE SAID THAT HE WANTED TO DISCUSS THE PROBLEM PERCEIVED BY
MINORITY EMPLOYEES; HIS STATEMENT THAT THE PICKETS WOULD NOT DESIST
UNTIL THE PRESIDENT TREATED WITH THEM; HAWKINS' TESTIMONY THAT THEIR
PURPOSE IN PICKETING WAS TO "TALK TO THE TOP MANAGEMENT TO GET BETTER
CONDITIONS"; AND HIS STATEMENT THAT THEY WANTED TO ACHIEVE THEIR
PURPOSE THROUGH "GROUP TALK AND THROUGH THE PRESIDENT IF WE COULD TALK
TO HIM," AS OPPOSED TO USE OF THE GRIEVANCE-ARBITRATION MACHINERY. 

/6/ THE BOARD CONSIDERED BUT STOPPED SHORT OF RESOLVING THE QUESTION
OF WHETHER THE EMPLOYEES' INVECTIVE AND CALL FOR A BOYCOTT OF THE
COMPANY BESPOKE SO MALICIOUS AN ATTEMPT TO HARM THEIR EMPLOYER AS TO
DEPRIVE THEM OF THE PROTECTION OF THE ACT.  THE BOARD DECISION IS
THEREFORE GROUNDED SQUARELY ON THE VIEW THAT A MINORITY GROUP MEMBER
MAY NOT BYPASS THE UNION AND BARGAIN DIRECTLY OVER MATTERS AFFECTING
MINORITY EMPLOYEES, AND NOT AT ALL ON THE TACTIES USED IN THIS
PARTICULAR ATTEMPT TO OBTAIN SUCH BARGAINING. 

MEMBER JENKINS DISSENTED ON THE GROUND THAT THE EMPLOYEES' ACTIVITY
WAS PROTECTED BY 7 BECAUSE IT CONCERNED THE TERMS AND CONDITIONS OF
THEIR EMPLOYMENT.  MEMBER BROWN AGREED BUT EXPRESSLY RELIED UPON HIS
VIEW THAT THE FACTS REVEALED NO ATTEMPT TO BARGAIN "BUT SIMPLY TO URGE
(THE COMPANY) TO TAKE ACTION TO CORRECT CONDITIONS OF RACIAL
DISCRIMINATION WHICH THE EMPLOYEES REASONABLY BELIEVED EXISTED AT THE
EMPORIUM."  192 N.L.R.B.,AT 179. 

/7/ SECTION 9(A) OF THE NLRA, 29 U.S.C. 159(A), PROVIDES IN PART: 

"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.  . . ." 


  ED.,SUPP.  II), PROVIDES: 

"IT SHALL BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER TO
DISCRIMINATE AGAINST ANY OF HIS EMPLOYEES OR APPLICANTS FOR EMPLOYMENT,
FOR AN EMPLOYMENT AGENCY OR JOINT LABOR-MANAGEMENT COMMITTEE
CONTROLLING APPRENTICESHIP OR OTHER TRAINING OR RESTRAINING, INCLUDING
ON-THE-JOB TRAINING PROGRAMS, TO DISCRIMINATE AGAINST ANY INDIVIDUAL;
OR FOR A LABOR ORGANIZATION TO DISCRIMINATE AGAINST ANY MEMBER THEREOF
OR APPLICANT FOR MEMBERSHIP, BECAUSE HE HAS OPPOSED ANY PRACTICE MADE
AN UNLAWFUL EMPLOYMENT PRACTICE BY THIS SUBCHAPTER, OR BECAUSE HE HAS
MADE A CHARGE, TESTIFIED, ASSISTED, OR PARTICIPATED IN ANY MANNER IN AN
INVESTIGATION, PROCEEDING, OR HEARING UNDER THIS SUBCHAPTER. 

/8/ 158 U.S.APP.D.C.,AT 152, 485 F.2D,AT 931 (EMPHASIS IN
ORIGINIAL).  WE HASTERN TO POINT OUT THAT IT HAD NEVER BEEN DETERMINED
IN ANY FORUM, AT LEAST AS OF THE TIME THAT HOLLINS AND HAWKINS ENGAGED
IN THE ACTIVITY FOR WHICH THEY WERE DISCHARGED, THAT THE COMPANY HAD
ENGAGED IN ANY DISCRIMINATORY CONDUCT.  THE BOARD FOUND THAT THE
EMPLOYEES BELIEVED THAT THE COMPANY HAD DONE SO, BUT THAT NO EVIDENCE
INTRODUCED IN DEFENSE OF THEIR RESORT TO SELF-HELP SUPPORTED THIS
BELIEF. 

/9/ JUDGE WYZANSKI DISSENTED INSOFAR AS THE BOARD WAS DIRECTED ON
REMAND TO EVALUTATE THE ADEQUACY OF THE UNION'S EFFORTS IN OPPOSING
DISCRIMINATION.  HE WAS OF THE VIEW THAT MINORITY CONCERTED ACTIVITY
AGAINST DISCRIMINATION WOULD BE PROTECTED REGARDLESS OF THE UNION'S
EFFORTS. 

/10/ ID., AT 150 N.34, 485 F.2D,AT 929 N. 34 (MAJORITY OPINION);
ID., AT 158, 485 F.2D,AT 937 (DISSENTING OPINION) ("THERE COULD NOT BE
A PLAINER INSTANCE OF AN ATTEMPT TO BARGAIN RESPECTING WORKING
CONDITIONS, AS DISTINGUISHED FROM AN ADJUSTMENT OF GRIEVANCES"). 

/11/ BRIEF FOR RESPONDENT 27 - 34; TR. OF ORAL ARG. 34, 37 - 40,
44,49 

/12/ THAT PROVISO STATES: 

"THAT ANY INDIVIDUAL EMPLOYEE OR A GROUP OF EMPLOYEES SHALL HAVE THE
RIGHT AT ANY TIME TO PRESENT GRIEVANCES TO THEIR EMPLOYER AND TO HAVE
SUCH GRIEVANCES ADJUSTED, WITHOUT THE INTERVENTION OF THE BARGAINING
REPRESENTATIVE, AS LONG AS THE ADJUSTMENT IS NOT INCONSISTENT WITH THE
TERMS OF A COLLECTIVE-BARGAINING CONTRACT OR AGREEMENT THEN IN EFFECT. 
. . ." 

RESPONDENT CLEARLY MISAPPREHENDS THE NATURE OF THE "RIGHT"
CONFERRED BY THIS SECTION.  THE INTENDMENT OF THE PROVISO IS TO PERMIT
EMPLOYEES TO PRESENT GRIEVANCES AND TO AUTHORIZE THE EMPLOYER TO
ENTERTAIN THEM WITHOUT OPENING ITSELF TO LIABILITY FOR DEALING DIRECTLY
WITH EMPLOYEES IN DEROGATION OF THE DUTY TO BARGAIN ONLY WITH THE
EXCLUSIVE BARGAINING REPRESENTATIVE, A VIOLATION OF 8(A)(5).  H. R.
REP. NO. 245, 80TH CONG., 1ST SESS., 7 (1947); H. R. CONF. REP. NO.
510, 80TH CONG., 1ST SESS., 46 (1947).  THE ACT NOWHERE PROTECTS THIS
"RIGHT" BY MAKING IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO REFUSE
TO ENTERTAIN SUCH A PRESENTATION, NOR CAN IT BE READ TO AUTHORIZE
RESORT TO ECONOMIC COERCION.  THIS MATTER IS FULLY EXPLICATED IN BLACK
CLAWSON CO. V. MACHINISTS, 313 F.2D 179 (CA2 1962).  SEE ALSO REPUBLIC
STEEL V. MADDOX, 379 U.S. 650 (1965).  IF THE EMPLOYEES' ACTIVITY IN
THE PRESENT LITIGATION IS TO BE DEEMED PROTECTED, THEREFORE, IT MUST BE
SO BY REASON OF THE READING GIVEN TO THE MAIN PART OF 9(A), IN LIGHT OF
TITLE VII AND THE NATIONAL POLICY AGAINST EMPLOYMENT DISCRIMINATION,
AND NOT BY BURDENING THE PROVISO TO THAT SECTION WITH A LOAD IT WAS NOT
MEANT TO CARRY. 

/13/ IN INTRODUCING THE BILL THAT BECAME THE NLRA, SENATOR WAGNER
SAID OF THE PROVISIONS ESTABLISHING MAJORITY RULE:  "WITHOUT THEM THE
PHRASE 'COLLECTIVE BARGAINING' IS DEVOID OF MEANING, AND THE VERY FEW
UNFAIR EMPLOYERS ARE ENCOURAGED TO DIVIDE THEIR WORKERS AGAINST
THEMSELVES."  79 CONG.REC.  2372 (1935). 

/14/ THE UNION MAY NOT, OF COURSE, BARGAIN AWAY THE EMPLOYEES'
STATUTORY RIGHT TO CHOOSE A NEW, OR TO HAVE NO, BARGAINING
REPRESENTATIVE.  SEE NLRB V. MAGNAVOX CO., 415 U.S. 322 (1974). 

/15/ AS RESPONDENT CONCEDED AT ORAL ARGUMENT, THE RULE IT ESPOUSES
HERE WOULD NECESSARILY HAVE EQUAL APPLICATION TO ANY IDENTIFIABLE GROUP
OF EMPLOYEES--RACIAL OR RELIGIOUS GROUPS, WOMEN, ETS.--THAT REASONABLY
BELIEVED THEMSELVES TO BE THE OBJECT OF INVIDIOUS DISCRIMINATION BY
THEIR EMPLOYER.  TR. OF ORAL ARG. 30 - 31.  AS SEEMINGLY LIMITED BY THE
COURT OF APPEALS, HOWEVER, SUCH A GROUP WOULD HAVE TO GIVE THEIR
ELECTED REPRESENTATIVE AN OPPORTUNITY TO ADJUST THE MATTER IN SOME WAY
BEFORE RESORTING TO SELF-HELP. 

/16/ OUR ANALYSIS OF RESPONDENT'S ARGUMENT IN FAVOR OF THE EXCEPTION
MAKES IT UNNECESSARY EITHER TO ACCEPT OR REJECT ITS FACTUAL PREDICATE,
VIZ., THAT THE PROCEDURES NOW ESTABLISHED FOR THE ELIMINATION OF
DISCRIMINATION IN EMPLOYMENT ARE TOO CUMBERSOME TO BE EFFECTIVE.  WE
NOTE, HOWEVER, THAT THE PRESENT RECORD PROVIDES NO SUPPORT FOR THE
PROPOSITION.  THUS, WHILE RESPONDENT STRESSES THE FACT THAT HOLLINS AND
HAWKINS HAD BROUGHT THEIR EVIDENCE OF DISCRIMINATION TO THE UNION IN
APRIL 1968 BUT DID NOT RESORT TO SELF-HELP UNTIL THE FOLLOWING OCTOBER,
IT OVERLOOKS THE FACT THAT ALTHOUGH THEY HAD BEEN IN CONTACT WITH THE
STATE FAIR EMPLOYMENT PRACTICES COMMISSION THEY DID NOT FILE A CHARGE
WITH THAT AGENCY OR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
(EEOC).  FURTHER, WHEN THEY ABANDONED THE PROCEDURES TO WHICH THE UNION
WAS BOUND BECAUSE THEY THOUGHT "THE UNION WAS SORT OF PUTTING US OFF
AND ON AND WAS GOING INTO A LOT OF DELAY THAT WE FELT WAS UNNECESSARY,"
APP. 26, IT WAS AT THE VERY MOMENT THAT THE ADJUSTMENT BOARD HAD BEEN
CONVENED TO HEAR THEIR TESTIMONY. 

/17/ THE UNION IN THIS CASE HAD BEEN "PREPARED TO GO INTO
ARBITRATION" TO ENFORCE ITS POSITION, BUT WAS ADVISED BY ITS ATTORNEY
THAT IT WOULD BE DIFFICULT TO DO SO WITHOUT THE DISSIDENT MEMBERS'
TESTIMONY.  TESTIMONY OF WALTER JOHNSON, APP. 76. 

/18/ EVEN IF THE ARBITRAL DECISION DENIES THE PUTATIVE
DISCRIMINATEE'S COMPLAINT HIS ACCESS TO THE PROCESSES OF TITLE VII AND
THEREBY TO THE FEDERAL COURTS IS NOT FORECLOSED.  ALEXANDER V. GARDNER
DENVER CO., 415 U.S. 36 (1974). 

/19/ "THE PROCESSING OF DISPUTES THROUGH THE GRIEVANCE MACHINERY IS
ACTUALLY A VEHICLE BY WHICH MEANING AND CONTENT ARE GIVEN TO THE
COLLECTIVE BARGAINING AGREEMENT," STEELWORKERS V. WARRIOR & GULF CO.,
363 U.S. 574, 581 (1960); HENCE THE "'COMMON LAW OF THE SHOP,'" ID., AT
580, QUOTING COX, REFLECTIONS UPON LABOR ARBITRATION, 72 HARV.L.REV. 
1482, 1499 (1959). 

THE REMARKS OF UNION SECRETARY-TREASURER JOHNSON IN RESPONSE TO THE
SUGGESTION THAT THE UNION ABANDON THE GRIEVANCE-ARBITRATION AVENUE IN
FAVOR OF ECONOMIC COERCION ARE INDICATIVE.  "'I INFORMED THEN,'" HE
TESTIFIED, "'WHAT AN INDIVIDUAL WANTED TO DO ON THEIR OWN, THEY COULD
DO, BUT I WASN'T GOING TO ENGAGE IN ANY DRAMA, BUT I WANTED SOME
ORDERLY LEGAL PROCEDURES THAT WOULD HAVE SOME LONG LASTING EFFECT.'" 
192 N.L.R.B.,AT 182. 

/20/ THE COMPANY'S EMPLOYER INFORMATION REPORT EEO - 1 TO THE EEOC
FOR THE PERIOD DURING WHICH THIS DISPUTE AROSE INDICATES THAT IT HAD
EMPLOYEES IN EVERY MINORITY GROUP FOR WHICH INFORMATION WAS REQUIRED. 
AMONG SALES WORKERS ALONE IT RECORDED MALE AND FEMALE EMPLOYEES WHO
WERE NEGRO, ORIENTAL, AND SPANISH SURNAMED.  APP. 120.  IN ADDITION,
THE UNION TOOK THE POSITION THAT OLDER EMPLOYEES WERE ALSO BEING
DISCRIMINATED AGAINST. 

/21/ AT THE BOARD HEARING HOLLINS AND HAWKINS ADVANCED AS A BASIS
FOR THEIR BELIEF THAT THE COMPANY WAS DISCRIMINATING IN ASSIGNMENTS AND
PROMOTIONS THEIR OWN SURVEY, BRIEFING ON CONDITIONS, GEN. COUNSEL EX.
10, COURT APPEALS APP. 167.  THIS DOCUMENT, REPRODUCED IN PART IN THIS
COURT, STATES:  "WE DEMAND SELLING PERSONNEL OF THE FOLLOWING RACIAL
GROUPS TO BE INFILTRATED INTO THE FOLLOWING HIGH COMMISSION SELLING
AREAS.  BLACK, MEXICANS, CHINESE, FILIPINOS, ETC." A NUMBER OF SUCH
DEPARTMENTS OF THE STORE ARE THEN LISTED.  APP. 118.     /22/ 20B
(SENIORITY).  COURT OF APPEALS APP. 205. 

/23/ SEE UNITED PACKINGHOUSE WORKERS V. NLRB, 135 U.S.APP.D.C. 111,
416 F.2D 1126, CERT. DENIED, 396 U.S. 903 (1969); LOCAL UNION NO. 12,
UNITED RUBBER WORKERS OF AMERICA V. NLRB, 368 F.2D 12 (CA5 1966). 

/24/ THIS ARGUMENT AS ADVANCED BY RESPONDENT IS SOMEWHAT WEAKENED BY
ITS CONTEXT OF INSISTENCE THAT THE DISCHARGED EMPLOYEES WERE NOT
SEEKING TO BARGAIN WITH THE COMPANY.  THE SAME ARGUMENT IS MADE IN THE
AMICUS CURIAE BRIEF OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, PP. 9 - 14, ON THE ASSUMPTION, HOWEVER, THAT BARGAINING
-OVER THE ISSUE OF RACIAL DISCRIMINATION ALONE--WAS THEIR OBJECTIVE. 
IN LIGHT OF OUR DECLINATION TO UPSET THE FINDING TO THAT EFFECT, WE
TAKE THE ARGUMENT AS THE AMICUS MAKES IT. 

/25/ THE QUESTION OF WHETHER 704(A) IS APPLICABLE TO THE FACTS OF
THIS CASE IS NOT AS FREE FROM DOUBT AS THE RESPONDENT AND AMICUS WOULD
HAVE IT.  IN ITS BRIEF THE NLRB ARGUES THAT 704(A) IS DIRECTED AS
PROTECTING ACCESS TO THE EEOC AND FEDERAL COURTS.  PETTWAY V. AMERICAN
CAST IRON PIPE CO., 411 F.2D 998 (CA5 1969).  WE HAVE PREVIOUSLY HAD
OCCASION TO NOTE THAT "(NOTHING IN TITLE VII COMPELS AN EMPLOYER TO
ABSOLVE AND REHIRE ONE WHO HAS ENGAGED IN . . . DELIBERATE, UNLAWFUL
ACTIVITY AGAINST IT."  MCDONNELL DOUGLAS CORP. V. GREEN, 411 U.S. 792,
803 (1973).  WHETHER THE PROTECTION AFFORDED BY 704(A) EXTENDS ONLY TO
THE RIGHT OF ACCESS OR WELL BEYOND IT, HOWEVER, IS NOT A QUESTION
PROPERLY PRESENTED BY THESE CASES.  NOR IS IT AN APPROPRIATE QUESTION
TO BE ANSWERED IN THE FIRST INSTANCE BY THE NLRB.  QUESTIONS ARISING
UNDER TITLE VII MUST BE RESOLVED BY THE MEANS THAT CONGRESS PROVIDED
FOR THAT PURPOSE. 

IN THE COURSE OF ARGUING FOR AFFIRMANCE OF THE DECISION BELOW, UNDER
WHICH THE NLRB WOULD BE CALLED UPON TO EVALUATE THE EFFECTIVENESS OF A
UNION'S EFFORTS TO OPPOSE EMPLOYER DISCRIMINATION IN THE BARGAINING
UNIT, RESPONDENT TAKES THE POSITION THAT THE BOARD IS WELL EQUIPPED BY
REASON OF EXPERIENCE AND PERSPECTIVE TO PLAY A MAJOR ROLE IN THE
PROCESS OF ELIMINATING DISCRIMINATION IN EMPLOYMENT.  THE BOARD
ENFORCED DUTY OF FAIR REPRESENTATION, IT IS NOTED, HAS ALREADY EXPOSED
IT TO THE PROBLEMS THAT INHERE IN DETECTING AND DETERRING RACIAL
DISCRIMINATION WITHIN UNIONS.  WHAT IS SAID ABOVE DOES NOT CALL INTO
QUESTION EITHER THE CAPACITY OR THE PROPRIETY OF THE BOARD'S
SENSITIVETY TO QUESTIONS OF DISCRIMINATION.  IT PERTAINS, RATHER, TO
THE PROPER ALLOCATION OF A PARTICULAR FUNCTION--ADJUDICATION OF CLAIMED
VIOLATIONS OF TITLE VII--THAT CONGRESS HAS ASSIGNED ELSEWHERE. 

/26/ IN ALEXANDER V. GARDNER-DENVER CO., 415 U.S.,AT 48 N. 9, WE HAD
OCCASION TO REFER TO SENATOR CLARK'S INTERPRETIVE MEMORANDUM STATING
THAT "(NOTHING IN TITLE VII OR ANYWHERE ELSE IN THIS BILL AFFECTS
RIGHTS AND OBLIGATIONS UNDER THE NLRA.  . . ."  SINCE THE SENATOR'S
REMARKS WERE DIRECTED TO THE SUGGESTION THAT ENACTMENT OF TITLE VII
WOULD SOMEHOW CONSTRICT AN EMPLOYEE'S ACCESS TO REDRESS UNDER OTHER
STATUTORY REGIMES, WE DO NOT TAKE THEM AS FORECLOSING THE POSSIBILITY
THAT IN SOME CIRCUMSTANCES RIGHTS CREATED BY THE NLRA AND RELATED LAWS
AFFECTING THE EMPLOYMENT RELATIONSHIP MUST BE BROADENED TO ACCOMMODATE
THE POLICIES OF TITLE VII. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE COURT'S OPINION MAKES THESE UNION MEMBERS--AND OTHERS SIMILARLY
SITUATED--PRISONERS OF THE UNION.  THE LAW, I THINK, WAS DESIGNED TO
PREVENT THAT TRAGIC CONSEQUENCE.  HENCE, I DISSENT. 

THE EMPLOYEES INVOLVED, WHO ARE BLACK AND WHO WERE MEMBERS OF A
UNION THROUGH WHICH THEY OBTAINED EMPLOYMENT BY THE EMPORIUM, WOULD
SEEM TO HAVE SUFFERED RANK DISCRIMINATION BECAUSE OF THEIR RACE.  THEY
THEORETICALLY HAD A CAUSE OF ACTION AGAINST THEIR UNION FOR BREACH OF
ITS DUTY OF FAIR REPRESENTATION SPELLED OUT IN STEELE V. LOUISVILLE &
N.R. CO., 323 U.S. 192.  BUT AS THE LAW ON THAT PHASE OF THE PROBLEM
HAS EVOLVED IT WOULD SEEM THAT THE BURDEN ON THE EMPLOYEE IS HEAVY. 
SEE VACA V. SIPES, 386 U.S. 171, 190, WHERE IT WAS HELD THAT THE UNION
ACTION MUST BE "ARBITRARY, DISCRIMINATORY, OR IN BAD FAITH." 

THE EMPLOYEES MIGHT ALSO HAVE SOUGHT RELIEF UNDER TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, 78 STAT. 253, WHICH FORBIDS DISCRIMINATION IN
EMPLOYMENT ON THE BASIS OF "RACE, COLOR, RELIGION, SEX OR NATIONAL
ORIGIN."  SECTION 704(A) OF THAT ACT MAKES IT UNLAWFUL FOR AN EMPLOYER
TO "DISCRIMINATE AGAINST ANY OF HIS EMPLOYEES . . . BECAUSE HE HAS
OPPOSED ANY PRACTICE MADE AN UNLAWFUL EMPLOYMENT PRACTICE BY (THE ACT),
OR BECAUSE HE HAS MADE A CHARGE, TESTIFIED, ASSISTED, OR PARTICIPATED
IN ANY MANNER IN AN INVESTIGATION, PROCEEDING, OR HEARING UNDER (THE
ACT)."  IN DISTINGUISHING "OPPOSITION" FROM PARTICIPATION IN LEGAL
PROCEEDINGS BROUGHT PURSUANT TO THE STATUTE, IT WOULD SEEM THAT
CONGRESS BROUGHT EMPLOYEE SELF-HELP WITHIN THE PROTECTION OF 704.  /1/ 

IN THIS CASE, THE EMPLOYEES TOOK NEITHER OF THE FOREGOING COURSES,
EACH FRAUGHT WITH OBSTACLES, BUT PICKETED TO PROTEST EMPORIUM'S
PRACTICES.  I BELIEVE THESE WERE "CONCERTED ACTIVITIES" PROTECTED UNDER
7 OF THE NATIONAL LABOR RELATION ACT.  THE EMPLOYEES WERE ENGAGED IN A
TRADITIONAL FORM OF LABOR PROTEST, DIRECTED AT MATTERS WHICH ARE
UNQUESTIONABLY A PROPER SUBJECT OF EMPLOYEE CONCERN.  AS LONG AGO AS
NEW NEGRO ALLIANCE V. SANITARY GROCERY CO., 303 U.S. 552, 561, WE
OBSERVED:

"THE DESIRE FOR FAIR AND EQUITABLE CONDITIONS OF EMPLOYMENT ON THE
PART OF PERSONS OF ANY RACE, COLOR, OR PERSUASION, AND THE REMOVAL OF
DISCRIMINATIONS AGAINST THEM BY REASON OF THEIR RACE OR RELIGIOUS
BELIEFS IS QUITE AS IMPORTANT TO THOSE CONCERNED AS FAIRNESS AND EQUITY
IN TERMS AND CONDITIONS OF EMPLOYMENT CAN BE TO TRADE OR CRAFT UNIONS
OR ANY FORM OF LABOR ORGANIZATION OR ASSOCIATION."  THESE OBSERVATIONS
HAVE ADDED FORCE TODAY WITH THE ENACTMENT OF TITLE VI,, WHICH
UNEQUIVOCALLY MAKES THE ERADICATION OF EMPLOYMENT DISCRIMINATION PART
OF THE FEDERAL LABOR POLICY, IN LIGHT OF WHICH ALL LABOR LAWS MUST BE
CONSTRUED. 

THE BOARD HAS HELD THAT THE EMPLOYEES WERE UNPROTECTED BECAUSE THEY
SOUGHT TO CONFRONT THE EMPLOYER OUTSIDE THE GRIEVANCE PROCESS, WHICH
WAS UNDER UNION CONTROL.  THE COURT UPHOLDS THE BOARD, ON THE VIEW THAT
THIS RESULT IS COMMANDED BY THE PRINCIPLE OF "EXCLUSIVE REPRESENTATION"
EMBODIED IN 9 OF THE NLRA.  BUT IN THE AREA OF RACIAL DISCRIMINATION
THE UNION IS HARDLY IN A POSITION TO DEMAND EXCLUSIVE CONTROL, FOR THE
EMPLOYEE'S RIGHT TO NONDISCRIMINATORY TREATMENT DOES NOT DEPEND UPON
UNION DEMAND BUT IS BASED ON THE LAW.  WE HELD IN ALEXANDER V. GARDNER
DENVER CO., 415 U.S. 36, THAT A UNION MAY NOT CIRCUMSCRIBE AN
EMPLOYEE'S OPPORTUNITY TO SEEK RELIEF UNDER TITLE VII.  WE SAID THERE
THAT TITLE VII "CONCERNS NOT MAJORITARIAN PROCESSES, BUT AN
INDIVIDUAL'S RIGHT TO EQUAL EMPLOYMENT OPPORTUNITIES.  TITLE VII'S
STRICTURES ARE ABSOLUTE AND REPRESENT A CONGRESSAL COMMAND THAT EACH
EMPLOYEE BE FREE FROM DISCRIMINATORY PRACTICES."  ID., AT 51. 

THE LAW SHOULD FACILITATE THE INVOLVEMENT OF UNIONS IN THE QUEST FOR
RACIAL EQUALITY IN EMPLOYMENT, BUT IT SHOULD NOT MAKE THE INDIVIDUAL A
PRISONER OF THE UNION.  WHILE EMPLOYEES MAY REASONABLY BE REQUIRED TO
APPROACH THE UNION FIRST, AS A KIND OF "EXHAUSTION"  REQUIREMENT BEFORE
RESORTING TO ECONOMIC PROTEST, CF. NLRB V. TANNER MOTOR LIVERY, 419
F.2D 216 (CA9), THEY SHOULD NOT BE UNDER CONTINUED INHIBITION WHEN IT
BECOMES APPARENT THAT THE UNION RESPONSE IS INADEQUATE.  THE COURT OF
APPEALS HELD THAT THE EMPLOYEES SHOULD BE PROTECTED FROM DISCHARGE
UNLESS THE BOARD FOUND ON REMAND THAT THE UNION HAD BEEN PROSECUTING
THEIR COMPLAINTS "TO THE FULLEST EXTENT POSSIBLE, BY THE MOST EXPEDIENT
AND EFFICACIOUS MEANS."  158 U.S.APP.D.C. 138, 152, 485 F.2D 917, 931. 
I WOULD NOT DISTURB THIS STANDARD.  UNION CONDUCT CAN BE OPPRESSIVE
EVEN IF NOT MADE IN BAD FAITH.  THE INERTIA OF WEAK-KNEED, DOCILE UNION
LEADERSHIP CAN BE AS DEVASTING TO THE CAUSE OF RACIAL EQUALITY AS
AGGRESSIVE SUBVERSION.  CONTINUED SUBMISSION BY EMPLOYEES TO SUCH A
REGIME SHOULD NOT BE DEMANDED. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/ SEE CCH EEOC DECISIONS (1973) PARA. 6264 (APR. 19, 1971).  THERE
THE EEOC HELD THAT IN SPITE OF A COLLECTIVE AGREEMENT INVOLVING A "NO
STRIKE" CLAUSE AN EMPLOYEE MIGHT PICKET THE PLANT FOR DISCRIMINATION
AGAINST BLACKS.  THE COMMISSION SAID: 

"AN EMPLOYEE HAS A STATUTORY RIGHT UNDER TITLE VII TO OPPOSE, WITHOUT
RETALIATION, ANY UNLAWFUL EMPLOYMENT PRACTICES OF HIS EMPLOYER.  WE
BELIEVE THIS RIGHT CANNOT BE ABOLISHED OR DIMINISHED BY A COLLECTIVE
BARGAINING AGREEMENT.  THE PROTECTION WHICH TITLE VII AFFORDS TO
CHARGING PARTY NO. 1'S CONDUCT MAY BE ANALOGIZED TO THE PROTECTION THE
NATIONAL LABOR RELATIONS ACT AFFORDS EMPLOYEES WHO PICKET IN PROTEST
AGAINST UNFAIR LABOR PRACTICES COMMITTED BY THEIR EMPLOYER, ALTHOUGH
THERE EXISTS A VALID COLLECTIVE BARGAINING AGREEMENT CONTAINING A NO
STRIKE CLAUSE." 

THE COMMISSION RIGHTLY CONCLUDED THAT THAT DECISION WAS IN LINE WITH
MASTRO PLASTICS CORP. V. NLRB, 350 U.S. 270. 

GEORGE O. BAHRS ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER IN
NO. 73 - 696.  DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR
PETITIONER IN NO. 73 - 830.  WITH HIM ON THE BRIEFS WERE SOLICITOR
GENERAL BORK, KEITH A. JONES, PETER G. NASH, JOHN S. IRVING, PATRICK
HARDIN, NORTON J. COME, AND LINDA SHER. 

KENNETH HECHT ARGUED THE CAUSE FOR RESPONDENT WESTERN ADDITION
COMMUNITY ORGANIZATION IN BOTH CASES.  WITH HIM ON THE BRIEF WERE
EDWARD H. STEINMAN AND LEE M. MODJESKA. 

BRIEFS OF AMICI CURIAE URGING REVERSAL IN BOTH CASES WERE FILED BY
J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN
FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS; BY GERARD
C. SMETANA, LAWRENCE M. COHEN, JEFFREY S. GOLDMAN, AND MILTON A. SMITH
FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES; AND BY IRA M.
MILLSTEIN FOR THE NATIONAL RETAIL MERCHANTS ASSN., INC. 

FLETCHER FARRINGTON AND NATHANIEL R. JONES FILED A BRIEF FOR THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE AS AMICUS
CURIAE URGING AFFIRMANCE IN BOTH CASES. 

BRIEFS OF AMICI CURIAE IN BOTH CASES WERE FILED BY DENNIS G. LYONS,
DAVID BONDERMAN, AND J. HAROLD FLANNERY FOR THE NATIONAL URBAN LEAGUE
ET AL.; BY LUTZ ALEXANDER PRAGER FOR WAYNE STATE UNIVERSITY CLINICAL
LAW PROGRAM IN EMPLOYMENT DISCRIMINATION; AND BY THE DEPARTMENT STORE
EMPLOYEES UNION, LOCAL 1100. 
..END :





HARRIS COUNTY COMMISSIONERS COURT V. MOORE, 420 U.S. 77 


       HARRIS COUNTY COMMISSIONERS COURT ET AL. V. MOORE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF TEXAS

NO. 73 - 1475.  ARGUED NOVEMBER 11, 1974--DECIDED FEBRUARY

           18, 1975; 378 F.SUPP.  1006, REVERSED AND REMANDED. 


    APPELLEE JUSTICES OF THE PEACE AND CONSTABLES, THREATENED WITH

  REMOVAL BEFORE THEIR ELECTED TERMS EXPIRED, BROUGHT THIS ACTION

  IN FEDERAL COURT, CHALLENGING ON DUE PROCESS AND EQUAL PROTECTION

  GROUNDS THE CONSTITUTIONALITY OF A TEXAS STATUTE PROVIDING, INTER

  ALIA, THAT WHEN THE BOUNDARIES OF CERTAIN PRECINCTS ARE CHANGED

  AND MORE THAN THE ALLOTTED NUMBER OF JUSTICES OF THE PEACE OR

  CONSTABLES RESIDE WITHIN THE CHANGED DISTRICT THE OFFICES SHALL

BECOME VACANT AND SHALL BE FILLED AS ARE OTHER VACANCIES.  UNDER

  TEXAS CONSTITUTIONAL PROVISIONS (A) A JUSTICE OF THE PEACE OR

  CONSTABLE "SHALL HOLD HIS OFFICE FOR FOUR YEARS AND UNTIL HIS

  SUCCESSOR SHALL BE ELECTED AND QUALIFIED,"  AND (B) SUCH OFFICERS

  MAY BE REMOVED BY STATE DISTRICT COURT JUDGES FOR VARIOUS CAUSES

  AFTER NOTICE AND JURY TRIAL.  A THREE-JUDGE FEDERAL DISTRICT

  COURT HELD THAT THE STATUTE VIOLATED EQUAL PROTECTION BY REMOVING

  SOME COUNTY OFFICERS BUT NOT OTHERS, AND ORDERED APPELLEE

  OFFICIALS' REINSTATEMENT.  HELD:  IN VIEW OF THE UNSETTLED STATE

  OF TEXAS LAW AS TO WHETHER THE STATE CONSTITUTIONAL PROVISIONS

  ENSURE JUSTICES OF THE PEACE AND CONSTABLES TENURE UNTIL THEIR

  ELECTED TERMS EXPIRE EVEN WHEN THE CHALLENGED STATUTE WOULD

  REQUIRE THEIR OUSTER, THE DISTRICT COURT SHOULD HAVE ABSTAINED

  FROM DECIDING THE FEDERAL CONSTITUTIONAL ISSUE, IT BEING FAR FROM

  CERTAIN UNDER VARIOUS TEXAS PRECEDENTS THAT APPELLEE

  OFFICEHOLDERS MUST LOSE THEIR JOBS OR THAT THE REINSTATEMENT

  RELIEF ORDERED BY THE DISTRICT COURT IS AVAILABLE.  PP. 82 - 89. 

     MARSHALL, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER,

C. J., AND BRENNAN, STEWART, WHITE, BLECKMUN, POWELL, AND

REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION,

  POST, P. 89. 

OPINION OF THE COURT BY MR. JUSTICE MARSHALL, ANNOUNCED BY MR. CHIEF
JUSTICE BURGER. 

THE APPELLEES BROUGHT THIS ACTION TO CHALLENGE A PLAN REDISTRICTING
THE JUSTICE OF THE PEACE PRECINCTS IN HARRIS COUNTY, TEXAS.  BECAUSE
THE PLAN PROVIDED FOR CONSOLIDATION OF SEVERAL PRECINCTS, THREE
JUSTICES OF THE PEACE AND TWO CONSTABLES LOST THEIR JOBS.  THESE FIVE
OFFICIALS, ALONG WITH TWO VOTERS FROM THE DEFUNCT PRECINCTS, SOUGHT TO
ENJOIN IMPLEMENTATION OF THE REDISTRICTING PLAN ON THE GROUND THAT THE
TEXAS STATUTE PROVIDING FOR THEIR REMOVAL FROM OFFICE AT THE TIME OF
REDISTRICTING DENIED THEM THE EQUAL PROTECTION OF THE LAWS.  THE THREE
JUDGE DISTRICT COURT GRANTED RELIEF, DECLARING THE STATUTE
UNCONSTITUTIONAL AND ENJOINING THE REDISTRICTING.  THE ORDER OF THE
DISTRICT COURT WAS STAYED BY MR. JUSTICE POWELL.  WE DENIED A MOTION TO
VACATE THE STAY, 415 U.S. 905 (1974), AND SUBSEQUENTLY NOTED PROBABLE
JURISDICTION, 417 U.S. 928 (1974).  WE REVERSE AND REMAND TO THE
DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE COMPLAINT WITHOUT
PREJUDICE. 

I 

UNDER TEXAS LAW, THE COMMISSIONERS COURT IS THE GENERAL GOVERNING
BODY OF EACH COUNTY; ONE OF ITS DUTIES IS TO DIVIDE THE COUNTY INTO
PRECINCTS FOR THE ELECTION OF JUSTICES OF THE PEACE AND CONSTABLES, AND
TO REDISTRICT THE PRECINCTS WHEN NECESSARY.  TEX. REV. CIV. STAT. ANN.,
ART. 2351 (1) (1971). 

IN JUNE 1973, THE COMMISSIONERS COURT OF HARRIS COUNTY ADOPTED A
REDISTRICTING PLAN FOR THE EIGHT JUSTICE OF THE PEACE IN THE COUNTY. 
THE LAST REDISTRICTING HAD TAKEN PLACE IN 1876, AND THE ENORMOUS
POPULATION CHANGES IN THE HOUSTON AREA HAD RESULTED IN GROSS
DISPARITIES IN POPULATION AMONG THE PRECINCTS:  THE LARGEST PRECINCT
CONTAINED APPROXIMATELY ONE MILLION PERSONS, WHILE THE SMALLEST HAD
FEWER THAN 7,000. 

UNDER THE OLD PLAN, ONE JUSTICE OF THE PEACE AND ONE CONSTABLE WERE
ASSIGNED TO EACH PRECINCT EXCEPT THE LARGEST, WHICH WAS ALLOTTED TWO
JUSTICES AND ONE CONSTABLE.  BECAUSE OF THE APPARENT DISCREPANCY IN THE
WORKLOAD OF THE OFFICIALS IN DIFFERENT PRECINCTC, THE COMMISSIONERS
COURT ADOPTED A REDISTRICTING PLAN THAT REDREW THE PRECINCT LINES. 
ALTHOUGH THE PROPOSED NEW PRECINCTS STILL VARIED SUBSTANTIALLY IN
POPULATION SIZE, THE DISPARITY WAS MUCH LESS THAN IT HAD BEEN. 

AMONG OTHER CHANGES, THE PLAN CONSOLIDATED THREE OF THE SMALLEST
PRECINCTS AND PARTS OF TWO OTHERS INTO A SINGLE NEW PRECINCT.  AS A
RESULT, FOUR JUSTICES AND THREE CONSTABLES FOUND THEMSELVES RESIDENTS
OF A SINGLE PRECINCT, WHICH WAS ENTITLED BY LAW TO A MAXIMUM OF ONLY
ONE CONSTABLE AND TWO JUSTICES OF THE PEACE.  PURSUANT TO A TEXAS
STATUTE, TEX. REV. CIV. STAT. ANN., ART 2351 1/2 (C) (1971), THE
COMMISSIONERS COURT DECLARED THE CONSTABLE AND JUSTICE POSTS FOR THAT
PRECINCT TO BE VACANT, SINCE THERE WERE MORE OFFICIALS LIVING IN THE
PRECINCT THAN POSITIONS AVAILABLE.  /1/ THE COMMISSIONERS COURT THEN
FILLED THE VACANCIES, TEX. REV. CIV. STAT. ANN., ART. 2355 (1971),
APPOINTING ONE OF THE DISPLACED CONSTABLES TO THE NEW CONSTABLE POST
AND ONE OF THE DISPLACED JUSTICES TO ONE OF THE TWO NEW JUSTICE
POSITIONS.  A NONINCUMBENT WAS APPOINTED TO FILL THE OTHER SLOT. 

THE FIVE OFFICEHOLDERS, THREATENED WITH REMOVAL PRIOR TO THE
EXPIRATION OF THEIR ELECTED TERMS, RESORTED TO COURT ACTION IN AN
EFFORT TO BLOCK IMPLEMENTATION OF THE REDISTRICTING PLAN.  ONE OF THE
CONSTABLES FILED SUIT IN STATE COURT, BUT WHEN THAT COURT DENIED HIS
APPLICATION FOR A TEMPORARY INJUNCTION, HE APPARENTLY ABANDONED THE
ACTION.  SHORTLY THEREAFTER, THE THREE DISPLACED JUSTICES AND TWO
CONSTABLES, ALONG WITH TWO VOTERS WHO HAD LIVED IN THEIR PRECINCTS,
BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS, CLAIMING THAT THE REDISTRICTING SCHEME WAS
UNCONSTITUTIONAL.  THEIR REMOVAL PURSUANT TO ART. 2351 1/2 (C) VIOLATED
THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT, THE OFFICIALS CONTENDED.  MORE SPECIFICALLY, THEY ARGUED
THAT THE REDISTRICTING ORDER WAS CONSTITUTIONALLY INVALID BECAUSE IT
DID NOT MEET "ONE MAN, ONE VOTE" STANDARDS, BECAUSE IT DENIED VOTERS IN
CERTAIN PRECINCTS THE FULL EFFECT OF THEIR VOTES, AND BECAUSE THE
PRECINCTS WERE REDRAWN ALONG RACIAL LINES.  ALTHOUGH THE APPELLEES DID
NOT EXPRESSLY RAISE A STATE LAW CLAIM IN THEIR COMPLAINT, /2/ THEY
ARGUED IN THEIR PRETRIAL BRIEF THAT ART. 2351 1/2(C) WAS INVALID UNDER
THE STATE CONSTITUTION AS WELL, RELYING ON SEVERAL STATE COURT CASES
AND TWO OPINIONS OF THE TEXAS ATTORNEY GENERAL.  IN RESPONSE, THE
APPELLANTS REQUESTED THAT THE COMPLAINT BE DISMISSED BECAUSE THE SUIT
RAISED NO SUBSTANTIAL FEDERAL QUESTIONS AND BECAUSE THE APPELLEES HAD
FAILED TO EXHAUST THEIR STATE REMEDIES BEFORE BRINGING SUIT IN FEDERAL
COURT.  /3/ 

A THREE-JUDGE COURT WAS CONVENED.  IT HEARD ARGUMENT AND ISSUED AN
ORDER LATER THE SAME DAY.  IN ITS ORDER, THE COURT ASSERTED
JURISDICTION AND ENJOINED IMPLEMENTATION OF THE REDISTRICTING PLAN ON
THE GROUND THAT THE TEXAS STATUTE PROVIDING FOR THE REMOVAL OF THE
PLAINTIFF JUSTICES AND CONSTABLES WAS UNCONSTITUTIONAL ON ITS FACE.  A
WEEK LATER THE COURT FILED A BRIEF OPINION IN WHICH IT WROTE THAT
INSOFAR AS THE STATUTE SHORTENS THE TERM OF AN ELECTED PUBLIC OFFICIAL
MERELY BECAUSE REDISTRICTING PLACES HIM IN A DISTRICT WITH OTHERS, "IT
INVIDIOUSLY AND IRRATIONALLY DISCRIMINATES BETWEEN HIM AND OTHERS NOT
SO AFFECTED."  IN ADDITION, THE COURT HELD THAT THE STATUTE AS APPLIED
HAD DISCRIMINATED BETWEEN THOSE WHO VOTED FOR OR WERE ENTITLED TO VOTE
FOR THE DISPLACED OFFICIALS, AND THE VOTERS IN OTHER PRECINCTS WHERE
THE ELECTED OFFICIALS WERE PERMITTED TO SERVE A FULL TERM.  BECAUSE IT
FOUND NO COMPELLING INTEREST SERVED BY REDISTRICTING IN THE MIDDLE OF
PLAINTIFFS' TERMS, /4/ THE COURT HELD THAT TO THE EXTENT THAT THE
REDISTRICTING ORDER APPOINTED OTHER PERSONS TO PLAINTIFFS' OFFICES AND
PREVENTED PLAINTIFFS FROM CARRYING OUT THEIR DUTIES AND RECEIVING THEIR
SALARIES FOR THE REMAINDER OF THEIR ELECTED TERMS, THE ORDER WAS
INVALID.  /5/

        II 

THE APPELLANTS URGE US TO REVERSE THE DISTRICT COURT ON THE MERITS
OR, IN THE ALTERNATIVE, TO ORDER THE COURT TO ABSTAIN PENDING
DETERMINATION OF THE STATE LAW QUESTIONS THAT PERVADE THIS CASE.  /6/
BECAUSE WE AGREE WITH APPELLANTS THAT THE DISTRICT COURT SHOULD HAVE
ABSTAINED, WE REVERSE WITHOUT REACHING THE MERITS OF THE EQUAL
PROTECTION CLAIM SUSTAINED BY THE DISTRICT COURT. 

IN RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496 (1941), THE COURT
HELD THAT WHEN A FEDERAL CONSTITUTIONAL CLAIM IS PREMISED ON AN
UNSETTLED QUESTION OF STATE LAW, THE FEDERAL COURT SHOULD STAY ITS HAND
IN ORDER TO PROVIDE THE STATE COURTS AN OPPORTUNITY TO SETTLE THE
UNDERLYING STATE LAW QUESTION AND THUS AVOID THE POSSIBILITY OF
UNNECESSARILY DECIDING A CONSTITUTIONAL QUESTION.  SINCE THAT DECISION,
WE HAVE INVOKED THE "PULLMAN DOCTRINE" ON NUMEROUS OCCASIONS.  E.G.,
LAKE CARRIERS' ASSN. V. MACMULLAN, 406 U.S. 498 (1972); ASKEW V.
HARGRAVE, 401 U.S. 476 (1971); ETZ V.  REEBOZANICH, 397 U.S. 82 (1970);
HARRISON V. NAACP, 360 U.S. 167 (1959); SPECTOR MOTOR SERVICE, INC. V.
MCLAUGHLIN, 323 U.S. 101 (1944); SEE FIELD, ABSTENTION IN
CONSTITUTIONAL CASES:  THE SCOPE OF THE PULLMAN ABSTENTION DOCTRINE,
122 U.PA.L.REV.  1071, 1084 - 1101 (1974).  WE HAVE REPEATEDLY WARNED,
HOWEVER, THAT BECAUSE OF THE DELAYS INHERENT IN THE ABSTENTION PROCESS
AND THE DANGER THAT VALUABLE FEDERAL RIGHTS MIGHT BE LOST IN THE
ABSENCE OF EXPEDITIONS ADJUDICATION IN THE FEDERAL COURT, ABSTENTION
MUST BE INVOKED ONLY IN "SPECIAL CIRCUMSTANCES," SEE ZWICKLER V. KOOTA,
389 U.S. 241, 248 (1967), AND ONLY UPON CAREFUL CONSIDERATION OF THE
FACTS OF EACH CASE.  BAGGETT V. BULLITT, 377 U.S. 360, 375 - 379
(1964); RAILROAD COMM'N V. PULLMAN CO., SUPRA, AT 500. 

WHERE THERE IS AN ACTION PENDING IN STATE COURT THAT WILL LIKELY
RESOLVE THE STATE LAW QUESTIONS UNDERLYING THE FEDERAL CLAIM, WE HAVE
REGULARLY ORDERED ABSTENTION.  SEE ASKEW V. HARGRAVE, SUPRA; ALBERTSON
V. MILLARD, 345 U.S. 242 (1953); CHICAGO V. FIELDCREST DAIRIES, INC.,
316 U.S. 168, 173 (1942); CF. MEREDITH V. WINTER HAVEN, 320 U.S. 228,
236 (1943).  /7/ SIMILARLY, WHEN THE STATE LAW QUESTIONS HAVE CONCERNED
MATTERS PECULIARLY WITHIN THE PROVINCE OF THE LOCAL COURTS, SEE REETZ
V. BOZANICH, SUPRA; FORNARIS V. RIDGE TOOL CO., 400 U.S. 41 (1970); CF.
LOUISIANA POWER & LIGHT CO. V. CITY OF THIBODAUX, 360 U.S. 25 (1959),
WE HAVE INCLINED TOWARD ABSTENTION.  ON THE OTHER HAND, WHERE THE
LITIGATION HAS ALREADY BEEN LONG DELAYED, SEE HOSTETTER V. IDLEWILD BON
VOYAGE LIQUOR CORP., 377 U.S. 324, 329 (1964), OR WHERE IT HAS SEEMED
UNLIKELY THAT RESOLUTION OF THE STATE LAW QUESTION WOULD SIGNIFICANTLY
AFFECT THE FEDERAL CLAIM, SEE CHICAGO V. ATCHISON, T. & S.F.R. CO., 357
U.S. 77, 84 (1958); PUBLIC UTILITIES COMM'N V. UNITED FUEL GAS CO., 317
U.S. 456, 462 - 463 (1943), THE COURT HAS HELD THAT ABSTENTION SHOULD
NOT BE REQUIRED. 

AMONG THE CASES THAT CALL MOST INSISTENTLY FOR ABSTENTION ARE THOSE
IN WHICH THE FEDERAL CONSTITUTIONAL CHALLENGE TURNS ON A STATE STATUTE,
THE MEANING OF WHICH IS UNCLEAR UNDER STATE LAW.  IF THE STATE COURTS
WOULD BE LIKELY TO CONSTRUE THE STATUTE IN A FASHION THAT WOULD AVOID
THE NEED FOR A FEDERAL CONSTITUTIONAL RULING OR OTHERWISE SIGNIFICANTLY
MODIFY THE FEDERAL CLAIM, THE ARGUMENT FOR ABSTENTION IS STRONG.  SEE
KUSPER V. PONTIKES, 414 U.S. 51 (1973); LAKE CARRIERS'  ASSN. V.
MACMULLEN, SUPRA; HARMAN V. FORSSENIUS, 380 U.S. 528 (1965); HARRISON
V. NAACP, SUPRA.  THE SAME CONSIDERATIONS APPLY WHERE, AS IN THIS CASE,
THE UNCERTAIN STATUS OF LOCAL LAW STEMS FROM THE UNSETTLED RELATIONSHIP
BETWEEN THE STATE CONSTITUTION AND A STATUTE.  /8/ HERE RESOLUTION OF
THE QUESTION WHETHER THE TEXAS CONSTITUTION PERMITS THE COUNTY
COMMISSIONERS COURT TO REPLACE CONSTABLES AND JUSTICES OF THE PEACE
WHEN SEVERAL LIVE IN THE SAME PRECINCT WILL DEFINE THE SCOPE OF ART.
2351 1/2 (C) AND, AS A CONSEQUENCE, THE NATURE AND CONTINUED VITALITY
OF THE FEDERAL CONSTITUTIONAL CLAIM.  AS WE WROTE IN REETZ V. BOZANICH,
397 U.S.,AT 87, "THE NUB OF THE WHOLE CONTROVERSY MAY BE THE STATE
CONSTITUTION." 

THE APPELLEES INSIST THAT ABSTENTION WOULD BE IMPROPER IN THIS CASE
BECAUSE A TEXAS COURT CONSTRUCTION OF ART. 2351 1/2 (C) WOULD NOT
MODIFY OR AVOID THE EQUAL PROTECTION QUESTION PASSED ON BY THE DISTRICT
COURT.  HAVING ANALYZED THE RELEVANT TEXAS STATUTES, CONSTITUTIONAL
PROVISIONS, AND PRECEDENTS, HOWEVER, WE ARE UNABLE TO SHARE THEIR
CONVICTION. 

THE TEXAS CONSTITUTION PROVIDES THAT A JUSTICE OF THE PEACE OR
CONSTABLE "SHALL HOLD HIS OFFICE FOR FOUR YEARS AND UNTIL HIS SUCCESSOR
SHALL BE ELECTED AND QUALIFIED."  ART.  5, 18.  JUSTICES OF THE PEACE
AND CONSTABLES MAY BE REMOVED BY STATE DISTRICT COURT JUDGES FOR
VARIOUS CAUSES, AFTER NOTICE AND A TRIAL BY JURY.  ART. 5, 24.  WHAT IS
UNSETTLED IS WHETHER THESE TWO PROVISIONS ENSURE JUSTICES AND
CONSTABLES TENURE UNTIL THE COMPLETION OF THEIR ELECTED TERMS EVEN WHEN
MIDTERM REDISTRICTING PLACES THEM OUTSIDE THEIR ORIGINAL PRECINCT OR
PUTS THEM INTO A PRECINCT THAT HAS MORE THAN ITS FULL COMPLEMENT OF
OFFICEHOLDERS. 

IN TWO EARLY CASES, THE TEXAS COURTS HELD THAT THE STATE CONSTITUTION
PROVIDES NO GUARANTEE OF TENURE FOR JUSTICES AND CONSTABLES WHEN THE
COUNTY COMMISSIONERS COURT ELECTS TO EXERCISE ITS REDISTRICTING
AUTHORITY.  STATE EX REL. DOWLEN V. RIGSBY, 17 TEX.CIV.APP.  171, 43
S.W. 271, HOLDING APPROVED, 91 TEX. 351, 43 S.W. 1101 (1897); WARD V.
BOND, 10 S.W.2D 590 (TEX. CT. CIV. APP. 1928).  THE STATE SUPREME COURT
LATER APPEARED TO REVERSE THIS STAND IN APPROVING A LOWER COURT
DECISION THAT THE STATE CONSTITUTION GUARANTEED TO COUNTY COMMISSIONERS
THE RIGHT TO SERVE UNTIL THE EXPIRATION OF THEIR TERMS, EVEN IF
REDISTRICTING RESULTED IN THEIR LIVING OUTSIDE THEIR PRECINCTS. 
CHILDRESS COUNTY V. SACHSE, 310 S.W.2D 414 (TEX. CT. CIV. APP.),
HOLDING APPROVED, 158 TEX. 371, 312 S.W.2D 380 (1958).  IN AN OPINION
FILED SHORTLY BEFORE THE DISTRICT COURT HEARING IN THIS CASE, THE TEXAS
ATTORNEY GENERAL APPLIED THE REASONING OF THE SACHSE CASE AND RULED
THAT TO THE EXTENT THAT ART. 2351 1/2 (C) VACATED THE OFFICE OF A
JUSTICE OF THE PEACE WHO NO LONGER LIVED WITHIN HIS PRECINCT, THE
STATUTE WAS INVALID.  /9/ THE ATTORNEY GENERAL CONCLUDED THAT THE STATE
CONSTITUTION ENTITLES JUSTICES AND CONSTABLES TO SERVE THEIR FULL TERMS
UNLESS THEY ARE REMOVED PURSUANT TO ART. 5, 24.  OP. ATTY. GEN. H - 220
(1974).  THE REASONING OF THE ATTORNEY GENERAL'S OPINION WOULD APPEAR
TO EXTEND TO THIS CASE.  /10/  ALTHOUGH APPELLANTS CONTEND THAT THE
ATTORNEY GENERAL HAS MISCONSTRUED THE TEXAS PRECEDENTS, IT SEEMS FAR
FROM SETTLED THAT UNDER STATE LAW THE APPELLEE OFFICE-HOLDERS MUST LOST
THEIR JOBS.  /11/ 

THESE DIFFICULT STATE LAW QUESTIONS INTRUDE IN YET ANOTHER WAY THAT
STRENGTHENS THE CASE FOR ABSTENTION.  THE PROPER SCOPE OF THE ORDER
ENTERED BY THE DISTRICT COURT AND THE APPLICABILITY OF THAT ORDER TO
THE PLAINTIFFS' CLAIMS DEPEND DIRECTLY ON QUESTIONS OF STATE LAW.  THE
COURT'S INITIAL ORDER HELD ART. 2351 1/2 (C) UNCONSTITUTIONAL AND
ENJOINED THE REDISTRICTING PLAN ALTOGETHER.  IN ITS OPINION, THE COURT
APPARENTLY INTENDED TO NARROW ITS ORDER SOMEWHAT, BY HOLDING THE
STATUTE UNCONSTITUTIONAL AS APPLIED AND BY ENJOINING THE REDISTRICTING
ORDER ONLY TO THE EXTENT THAT IT REMOVED THE APPELLEES FROM THEIR
JOBS.  YET EVEN THAT RELIEF WAS BROADER THAN THE COURT'S HOLDING WOULD
SUPPORT.  ABSENT ART. 2351 1/2 (C), TEXAS LAW MAY WELL DICTATE THAT
UPON REDISTRICTING, ALL THE JUSTICE AND CONSTABLE POSITIONS IN THE
COUNTY WOULD BE VACATED.  /12/  SINCE THE DISTRICT COURT CONCLUDED ONLY
THAT ART. 2351 1/2 (C) DENIED THE OFFICEHOLDERS AND VOTERS EQUAL
PROTECTION BY REMOVING SOME OFFICIALS IN THE COUNTY BUT NOT OTHERS, IT
SHOULD NOT AUTOMATICALLY HAVE IMPOSED ONE REMEDY--REINSTATEMENT--WHEN
TEXAS LAW MIGHT WELL CALL FOR QUITE ANOTHER--REMOVAL OF ALL THE
AFFECTED OFFICE-HOLDERS.  YET IF THE DISTRICT COURT HAD LIMITED ITSELF
TO DECLARING ART. 2351 1/2 (C) UNCONSTITUTIONAL, AND THE COMMISSIONERS
COURT HAD DETERMINED THAT STATE LAW WOULD THEN REQUIRE THAT ALL THE
COUNTY JUSTICE AND CONSTABLE POSITIONS BE VACATED, /13/ THE APPELLEES
WOULD BE FORCED TO RESORT TO STATE COURT IN ORDER TO VINDICATE THEIR
CLAIMED RIGHT TO REINSTATEMENT.  IN SHORT, NOT ONLY THE CHARACTER OF
THE FEDERAL RIGHT ASSERTED IN THIS CASE, BUT EVEN THE AVAILABILITY OF
THE RELIEF SOUGHT TURN IN LARGE PART ON THE SAME UNSETTLED STATE LAW
QUESTIONS.  BECAUSE THE FEDERAL CLAIM IN THIS CASE IS "ENTANGLED IN A
SKEIN OF STATE LAW THAT MUST BE UNTANGLED BEFORE THE FEDERAL CASE CAN
PROCEED," MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668, 674 (1963), WE
CONCLUDE THAT THE DISTRICT COURT ERRED IN NOT ADOPTING APPELLANTS'
SUGGESTION TO ABSTAIN. 

IN ORDER TO REMOVE ANY POSSIBLE OBSTACLES TO STATE COURT
JURISDICTION, WE DIRECT THE DISTRICT COURT TO DISMISS THE COMPLAINT. 
/14/ THE DISMISSAL SHOULD BE WITHOUT PREJUDICE SO THAT ANY REMAINING
FEDERAL CLAIM MAY BE RAISED IN A FEDERAL FORUM AFTER THE TEXAS COURTS
HAVE BEEN GIVEN THE OPPORTUNITY TO ADDRESS THE STATE LAW QUESTIONS IN
THIS CASE.  ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375
U.S. 411, 421 - 422 (1964). 

                                  REVERSED AND REMANDED. 

/1/ ARTICLE 2351 1/2 (C) PROVIDES: 

"WHEN BOUNDARIES OF JUSTICE OF THE PEACE PRECINCTS ARE CHANGED, SO
THAT EXISTING PRECINCTS ARE ALTERED, NEW PRECINCTS ARE FORMED, OR
FORMER PRECINCTS ARE ABOLISHED, IF ONLY ONE PREVIOUSLY ELECTED OR
APPOINTED JUSTICE OF THE PEACE OR CONSTABLE RESIDES WITHIN A PRECINCT
AS SO CHANGED, HE SHALL CONTINUE IN OFFICE AS JUSTICE OR CONSTABLE OF
THAT PRECINCT FOR THE REMAINDER OF THE TERM TO WHICH HE WAS ELECTED OR
APPOINTED.  IF MORE THAN ONE JUSTICE OR CONSTABLE RESIDES WITHIN A
PRECINCT AS SO CHANGED, OR IF NONE RESIDES THEREIN, THE OFFICE SHALL
BECOME VACANT AND THE VACANCY SHALL BE FILLED AS OTHER VACANCIES;
PROVIDED, HOWEVER, THAT IN PRECINCTS HAVING TWO JUSTICES, IF TWO RESIDE
THEREIN, BOTH SHALL CONTINUE IN OFFICE, AND IF MORE THAN TWO RESIDE
THEREIN, BOTH OFFICES SHALL BECOME VACANT." 

ANOTHER STATUTE, TEX. ELEC.  CODE ANN., ART. 1.05 (SUPP. 1974 -
1975), HAS BEEN READ TO REQUIRE THAT SCHOOL DISTRICT OFFICIALS RESIDE
THROUGHOUT THEIR TERMS IN THE DISTRICTS THAT THEY SERVE.  WHITMARSH V.
BUCKLEY, 324 S.W.2D 298 (TEX. CT. CIV. APP. 1959).  COUNTY
COMMISSIONERS, BY CONTRAST, ARE NOT REQUIRED TO RESIDE IN THEIR
PRECINCTS FOR THEIR FULL TERMS.  CHILDRESS COUNTY V. SACHSE, 310 S.W.2D
414 (TEX. CT. CIV. APP.), HOLDING APPROVED, 158 TEX. 371, 312 S.W.2D
380 (1958).  THE TEXAS COURTS HAVE NOT YET SETTLED WHETHER ART. 1.05
REQUIRES THAT JUSTICES OF THE PEACE AND CONSTABLES RESIDE IN THEIR
PRECINCTS THROUGHOUT THEIR TERMS, OR WHETHER THE STATE CONSTITUTIONAL
PROVISIONS ESTABLISHING A REQUIREMENT OF COUNTY RESIDENCE FOR ALL
COUNTY OFFICERS, TEX. CONST., ART. 16, 14; ART. 5, 24, EXCUSE JUSTICES
AND CONSTABLES FROM THE REQUIREMENTS OF ART. 1.05. 

/2/ THE APPELLEES NOTED IN THEIR FIRST AMENDED COMPLAINT FOR
DECLARATORY JUDGMENT, FILED SEPT. 17, 1973, THAT THE STATE STATUTE, AS
INTERPRETED BY THE COMMISSIONERS COURT, WAS IN APPARENT CONFLICT WITH
ART. 5, 24, OF THE TEXAS CONSTITUTION, WHICH PROVIDES A MECHANISM FOR
REMOVAL OF COUNTY OFFICERS, INCLUDING JUSTICES AND CONSTABLES. 

/3/ IN THEIR PRETRIAL BRIEF, THE APPELLANTS MORE PROPERLY
CHARACTERIZED THEIR "EXHAUSTION" DEFENSE AS A REQUEST FOR THE DISTRICT
COURT TO ABSTAIN. 

/4/ THE APPELLANTS POINT OUT THAT SINCE STAGGERED TERMS ARE
CONSTITUTIONALLY MANDATED IN TEXAS, TEX. CONST., ART. 16, 65, IT WOULD
HAVE BEEN IMPOSSIBLE FOR THE COMMISSIONERS COURT TO HAVE REDISTRICTED
AT A TIME THAT WOULD HAVE FALLEN IN THE MIDDLE OF SOME OF THE JUSTICES'
OR CONSTABLES' TERMS. 

/5/ BECAUSE IT GRANTED RELIEF ON THE EQUAL PROTECTION CLAIM, THE
COURT FOUND IT UNNECESSARY TO REACH THE APPELLEES' OTHER CONTENTIONS. 
NOR DID THE COURT ADDRESS THE STATE LAW QUESTIONS OR THE APPELLANTS'
ABSTENTION ARGUMENT. 

/6/ WE HAVE JURISDICTION OF THIS APPEAL UNDER 28 U.S.C. 1253.  THE
STATUTE CHALLENGED HERE WAS PLAINLY OF STATEWIDE APPLICATION; IT WAS
ATTACKED AS BEING UNCONSTITUTIONAL ON ITS FACE OR AS APPLIED; AND FOR
THE PURPOSES OF THE THREE-JUDGE COURT ACT, 28 U.S.C. 2281, THE
DEFENDANT COUNTY COMMISSIONERS WERE "STATE OFFICERS" IN ADMINISTERING
THE CHALLENGED STATUTE.  BOARD OF REGENTS V. NEW LEFT EDUCATION
PROJECT, 404 U.S. 541, 544 N. 2 (1972).  THE APPELLEES' CLAIM,
MOREOVER, APPEARS SUFFICIENT TO RAISE A QUESTION FOR A THREE-JUDGE
COURT.  WE RECENTLY STATE THAT "CLAIMS ARE CONSTITUTIONALLY
INSUBSTANTIAL ONLY IF THE PRIOR DECISIONS INESCAPABLY RENDER THE CLAIMS
FRIVOLOUS; PREVIOUS DECISIONS THAT MERELY RENDER CLAIMS OF DOUBTFUL OR
QUESTIONABLE MERIT DO NOT RENDER THEM INSUBSTANTIAL FOR THE PURPOSES OF
28 U.S.C. 2281."  GOOSBY V. OSSER, 409 U.S. 512, 518 (1973). 

/7/ IN GIBSON V. BERRYHILL, 411 U.S. 564, 580 - 581 (1973), WE HELD
THAT ABSTENTION WAS NOT REQUIRED, EVEN THOUGH A SUIT THAT MIGHT HAVE
OBVIATED THE NEED FOR FEDERAL INJUNCTIVE RELIEF WAS PENDING IN THE
STATE COURTS.  IN GIBSON, HOWEVER, STATE AUTHORITIES WERE PRESSING
CHARGES AGAINST THE PLAINTIFFS WITHOUT AWAITING THE RESULTS OF THE
STATE COURT ACTION, AND SOME OF THE CHARGES AGAINST THE PLAINTIFFS
MIGHT HAVE SURVIVED EVEN A FAVORABLE RULING IN THE STATE SUPREME
COURT.  UNDER THOSE CIRCUMSTANCES, WE HELD THAT IT WAS NOT AN ABUSE OF
DISCRETION FOR THE DISTRICT COURT TO DECLINE TO ABSTAIN. 

/8/ IN WISCONSIN V. CONSTANTINEAU, 400 U.S. 433 (1971), WE DECLINED
TO ORDER ABSTENTION WHERE THE FEDERAL DUE PROCESS CLAIM WAS NOT
COMPLICATED BY AN UNRESOLVED STATE LAW QUESTION, EVEN THOUGH THE
PLAINTIFFS MIGHT HAVE SOUGHT RELIEF UNDER A SIMILAR PROVISION OF THE
STATE CONSTITUTION.  BUT WHERE THE CHALLENGED STATUTE IS PART OF THE
STATE CONSTITUTION.  BUT WHERE THE CHALLENGED STATUTE IS PART OF AN
INTEGRATED SCHEME OF RELATED CONSTITUTIONAL PROVISIONS, STATUTES, AND
REGULATIONS, AND WHERE THE SCHEME AS A WHOLE CALLS FOR CLARIFYING
INTERPRETATION BY THE STATE COURTS, WE HAVE REGULARLY REQUIRED THE
DISTRICT COURTS TO ABSTAIN.  SEE REETZ V. BOZANICH, 397 U.S. 82 (1970);
MERIDIAN V. SOUTHERN BELL TEL. & TEL. CO., 358 .S.  U.639 (1959). 

/9/ THE APPELLEES' ALLEGATION THAT ART. 2351 1/2 (C) IS
UNCONSTITUTTIONALLY VAGUE IS REVEALING.  THE "VAGUENESS" OF WHICH THEY
COMPLAIN IS NO MORE THAN UNCERTAINTY ABOUT THE APPLICABILITY OF THE
STATUTE TO A PARTICULAR SITUATION; IT IS NOT THE SORT OF VAGUENESS THAT
LEAVES THOSE SUBJECT TO A STATUTE UNCERTAIN ABOUT WHAT IS REQUIRED OF
THEM.  IN THE CASE WHERE APPLICABILITY OF THE STATUTE IS UNCERTAIN,
ABSTENTION IS OFTEN PROPER, WHILE IN THE CASE WHERE THE VAGUENESS CLAIM
GOES TO THE OBLIGATIONS IMPOSED BY THE STATUTE, IT IS NOT, SINCE A
SINGLE STATE CONSTRUCTION OFTEN WOULD NOT BRING THE CHALLENGED STATUTE
"WITHIN THE BOUNDS OF PERMISSIBLE CONSTITUTIONAL CERTAINTY."  BAGGETT
V. BULLITT, 377 U.S. 360, 378 (1964); PROCUNIER V. MARTINEZ, 416 U.S.
396, 401 N. 5 (1974). 

/10/ OPINIONS OF THE ATTORNEY GENERAL ARE "ENTITLED TO CAREFUL
CONSIDERATION BY THE COURTS, AND QUITE GENERALLY REGARDED AS HIGHLY
PERSUASIVE," JONES V. WILLIAMS, 121 TEX. 94, 98, 45 S.W.2D 130, 131
(1931).  THE 1974 OPINION, HOWEVER, MAY BE GIVEN CLOSE SCRUTINY BY THE
STATE COURTS, AS IT APPEARS TO BE IN DIRECT CONFLICT WITH SEVERAL
EARLIER OPINIONS OF THE ATTORNEY GENERAL, SEE N. 12, INFRA. 

/11/ EVEN IF THE SACHSE CASE DOES NOT APPLY TO JUSTICE PRECINCTS,
ART. 2351 1/2 (C) MAY STILL BE INVALID UNDER STATE LAW AS A LEGISLATIVE
ENCROACHMENT ON THE COUNTY COMMISSIONERS' CONSTITUTIONAL POWERS TO FILL
JUSTICE VACANCIES CREATED IN THE COURSE OF REDISTRICTING.  TEX. CONST.,
ART. 5, 28.  SEE OP. ATTY. GEN. M - 68 (1967).  IF THE STATUTE IS
UNCONSTITUTIONAL FOR THIS REASON, ALL THE JUSTICE POSITIONS IN THE
COUNTY WOULD HAVE BEEN VACATED, NOT JUST THOSE OCCUPIED BY THE
APPELLEES.  OBVIOUSLY, THIS CONSTRUCTION OF TEXAS LAW WOULD DRASTICALLY
ALTER THE NATURE OF APPELLEES' FEDERAL CLAIM. 

/12/ THERE IS SUPPORT FOR THIS VIEW IN SEVERAL EARLY CASES AND IN A
NUMBER OF STATE ATTORNEY GENERAL'S OPINIONS.  SEE BROWN V. MEEKS, 96
S.W.2D 839 (TEX. CT. CIV. APP. 1936); STATE EX REL. DOWLEN V. RIGSBY,
17 TEX.CIV.APP.  171, 43 S.W. 271, HOLDING APPROVED, 91 TEX. 351, 43
S.W. 1101 (1897); OP. ATTY. GEN. V - 790 (1949); V - 1032 (1950); WW -
536 (1958); C - 112 (1963).  THESE OPINIONS OF THE ATTORNEY GENERAL
WERE QUALIFIED IN A MANNER NOT AFFECTING THIS CASE IN OP. ATTY. GEN. M
68 (1967); SEE ALSO OP. ATTY. GEN. M - 562 (1970). 

/13/ THE COMMISSIONS COURT HAS IN FACT ADOPTED THIS VIEW OF TEXAS
LAW IN THIS CASE.  BRIEF FOR APPELLANTS 18 - 20. 

/14/ ORDINARILY THE PROPER COURSE IN ORDERING "PULLMAN ABSTENTION"
IS TO REMAND WITH INSTRUCTIONS TO RETAIN JURISDICTION BUT TO STAY THE
FEDERAL SUIT PENDING DETERMINATION OF THE STATE LAW QUESTIONS IN STATE
COURT.  SEE ZWICKLER V. KOOTA, 389 U.S. 241, 244 N. 4 (1967).  THE
TEXAS SUPREME COURT HAS RULED, HOWEVER, THAT IT CANNOT GRANT
DECLARATORY RELIEF UNDER STATE LAW IF A FEDERAL COURT RETAINS
JURISDICTION OVER THE FEDERAL CLAIM.  UNITED SERVICES LIFE INS. CO. V.
DELANEY, 396 S.W.2D 855 (1965); SEE ROMERO V. COLDWELL, 455 F.2D 1163,
1167 (CA5 1972); BARRETT V. ATLANTIC RICHFIELD CO., 444 F.2D 38, 45 -
46 (CA5 1971). 

WE HAVE ADOPTED THE UNUSUAL COURSE OF DISMISSING IN THIS CASE SOLELY
IN ORDER TO AVOID THE POSSIBILITY THAT SOME STATE LAW REMEDIES MIGHT
OTHERWISE BE FORECLOSED TO APPELLEES ON THEIR RETURN TO STATE COURT. 
OBVIOUSLY, THE DISMISSAL MUST NOT BE USED AS A MEANS TO DEFEAT THE
APPELLEES' FEDERAL CLAIMS IF AND WHEN THEY RETURN TO FEDERAL COURT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE PRINCIPLE OF ABSTENTION--JUDICIALLY CREATED BY RAILROAD COMM'N
V. PULLMAN CO., 312 U.S. 496 (1941)--PROMISES TO BECOME A SERIOUS
BARRIER TO THE ASSERTION BY FEDERAL COURTS OF THE JURISDICTION CONGRESS
HAS BESTOWED ON THEM.  IN THE PRESENT CASE, SUIT WAS STARTED IN 1973 IN
THE DISTRICT COURT, WHICH RENDERED ITS JUDGMENT JANUARY 30, 1974.  THE
TERM OF OFFICE OF THE THREE JUSTICES OF THE PEACE WHO WERE OUSTED
EXPIRED DECEMBER 31, 1974; THAT OF THE TWO CONSTABLES WILL EXPIRE
DECEMBER 31, 1976.  AFTER BEING BROUGHT ALL THE WAY HERE BY THE STATE
THAT OUSTED THEM FROM OFFICE, THEY ARE NOW TOLD THAT THEIR FEDERAL SUIT
IS DISMISSED AND THAT THEY MUST START LITIGATION ANEW IN THE STATE
COURTS.  THEY WOULD NECESSARILY HAVE TO BE VERY RICH OFFICEHOLDERS--OR
ELSE BE FINANCED BY SOME FOUNDATION--TO BE ABLE TO PAY THE EXPENSE OF
THIS LONG, DRAWN-OUT LITIGATION. 

THE THREE JUDGES WHO MADE UP THE DISTRICT COURT IN THIS CASE WERE
THOMAS G. GEE, JOHN V. SINGLETON, JR., AND CARL O. BUE, JR., ALL NAMED
FROM TEXAS, ALL VERSED IN THE IDIOSYNCRASIS OF TEXAS LAW.  A STATE
AGENCY, ACTING WITH FULL AUTHORITY OF STATE LAW, /1/ HAS OUSTED THESE
ELECTED OFFICIALS.  BY REMITTING THEM TO A STATE COURT WE NOW LEAVE
THEM WITHOUT AN EFFECTIVE REMEDY IN VIEW OF THE SHORT TERMS OF OFFICE
THAT ARE INVOLVED.  I SAID IN HARRISON V. NAACP, 360 U.S. 167, 184
(1959) (DISSENTING OPINION): 

"WE NEED NOT--WE SHOULD NOT--GIVE DEFERENCE TO A STATE POLICY

  THAT SEEKS TO UNDERMINE PARAMOUNT FEDERAL LAW.  WE FAIL TO

  PERFORM THE DUTY EXPRESSLY ENJOINED BY CONGRESS ON THE FEDERAL

  JUDICIARY IN THE CIVIL RIGHTS ACTS WHEN WE DO SO." 

WE HAVE A LIKE SITUATION HERE. 

HERE, AS IN CASES IN A FEDERAL COURT BY REASON OF DIVERSITY OF
CITIZENSHIP, ORDINARILY A FEDERAL COURT MUST NOT DECLINE TO EXERCISE
THE JURISDICTION CONGRESS HAS CONFERRED UPON IT "MERELY BECAUSE THE
ANSWERS TO THE QUESTIONS OF STATE LAW ARE DIFFICULT OR UNCERTAIN OR
HAVE NOT YET BEEN GIVEN BY THE HIGHEST COURT OF THE STATE," MEREDITY V.
WINTER HAVEN, 320 U.S. 228, 234 - 235 (1943).  THE ALTERNATIVE COURSE,
WE HELD, "WOULD THWART THE PURPOSE OF THE JURISDICTIONAL ACT,"  ID., AT
235. 

THE TEACHING OF PULLMAN IS GREATLY EXAGGERATED HERE.  NO SPECIAL
CIRCUMSTANCES WARRANTING ABDICATION OF FEDERAL JURISDICTION HAVE BEEN
SHOWN.  WHERE THE JUDGES MAKING UP THE PANEL OF THE THREE-JUDGE COURT
ARE FROM THE STATE WHOSE LOCAL LAW IS AT ISSUE, I WOULD LEAVE IT TO
THEM TO DECIDE WHETHER THE POLICY OF PULLMAN SHOULD BE APPLIED IN A
GIVEN CASE.  THEY KNOW ABOUT PULLMAN AS WELL AS MOST AS US.  IT WAS A
NEW DOCTRINE WHEN ANNOUNCED.  IT IS WORD THAT HAS LONG BEEN PART OF THE
WARP AND WOOF OF FEDERAL LAW. 

THE THREE JUDGES, SEASONED IN TEXAS LAW, SAW NO AMBIGUITIES, NO
EXOTIC QUESTION OF LAW REMAINING UNRESOLVED, AND RENDERED A FORTHRIGHT
DECISION THAT WAS EMINENTLY CORRECT ON FEDERAL LAW.  I WOULD LEAVE TO
OUR DISTRICT JUDGES THE QUESTION WHETHER THE LOCAL LAW PROBLEM
COUNSELED ABSTENTION. 

WE DO A GREAT DISSERVICE WHEN WE SEND THESE TIRED AND EXHAUSTED
LITIGANTS INTO THE DESERT IN SEARCH OF THIS HOLY GRAIL THAT IS ALREADY
IN THE KEEPING OF THE FEDERAL COURT. 

/1/ TEXAS REV. CIV. STAT. ANN., ART. 2351 1/2 (C) (1971), 

PROVIDES: 

"WHEN BOUNDARIES OF JUSTICE OF THE PEACE PRECINCTS ARE CHANGED, SO
THAT EXISTING PRECINCTS ARE ALTERED, NEW PRECINCTS ARE FORMED, OR
FORMER PRECINCTS ARE ABOLISHED, IF ONLY ONE PREVIOUSLY ELECTED OR
APPOINTED JUSTICE OF THE PEACE OR CONSTABLE RESIDES WITHIN A PRECINCT
AS SO CHANGED, HE SHALL CONTINUE IN OFFICE AS JUSTICE OR CONSTABLE OF
THAT PRECINCT FOR THE REMAINDER OF THE TERM TO WHICH HE WAS ELECTED OR
APPOINTED.  IF MORE THAN ONE JUSTICE OR CONSTABLE RESIDES WITHIN A
PRECINCT AS SO CHANGED, OR IF NONE RESIDES THEREIN, THE OFFICE SHALL
BECOME VACANT AND THE VACANCY SHALL BE FILLED AS OTHER VACANCIES;
PROVIDED, HOWEVER, THAT IN PRECINCTS HAVING TWO JUSTICES, IF TWO RESIDE
THEREIN, BOTH SHALL CONTINUE IN OFFICE, AND IF MORE THAN TWO RESIDE
THEREIN, BOTH OFFICES SHALL BECOME VACANT."     EDWARD J. LANDRY ARGUED
THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WERE JOE RESWEBER AND
MICHAEL R. DAVIS.     JOHN G. GILLELAND ARGUED THE CAUSE FOR APPELLEES
MOORE ET AL. WITH HIM ON THE BRIEF WAS VIRGIL H. BARFIELD.  C. ANTHONY
FRILOUX, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE
ZABOROSKI. 
..END :







FOSTER V. DRAVO CORP., 420 U.S. 92 


       FOSTER V. DRAVO CORP.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 73 - 1773.  ARGUED JANUARY 20, 1975--DECIDED FEBRUARY

           18, 1975; 490 F.2D 55, AFFIRMED. 


    1.  THE MILITARY SELECTIVE SERVICE ACT PROVIDES THAT A VETERAN

  WHO APPLIES FOR RE-EMPLOYMENT IF STILL QUALIFIED SHALL BE

  RESTORED BY HIS EMPLOYER TO HIS FORMER POSITION "OR A POSITION OF

  LIKE SENIORITY, STATUS, AND PAY," 9(B)(B)(I).  THE ACT FURTHER

  ASSURES THAT BENEFITS AND ADVANCEMENTS THAT WOULD NECESSARILY

  HAVE ACCRUED BY VIRTUE OF CONTINUED EMPLOYMENT WILL NOT BE DENIED

  THE VETERAN MERELY BECAUSE OF HIS ABSENCE IN THE MILITARY

  SERVICE.  THESE PROVISIONS, HOWEVER, DO NOT APPLY TO CLAIMED

  BENEFITS REQUIRING MORE THAN SIMPLE CONTINUED STATUS AS AN

  EMPLOYEE.  IN THIS CASE THE ACT'S PROVISIONS DO NOT ENTITLE

PETITIONER EMPLOYEE TO FULL VACATION BENEFITS FOR THE YEARS HE

  WAS IN MILITARY SERVICE, UNDER THE TERMS OF A

  COLLECTIVE-BARGAINING AGREEMENT THAT CONDITIONED THE AWARD OF

  SUCH BENEFITS ON THE RECEIPT OF EARNINGS DURING 25 WEEKS OF THE

  PREVIOUS YEAR, SINCE THE VACATION SCHEME WAS INTENDED AS A FORM

  OF SHORT-TERM DEFERRED COMPENSATION FOR WORK PERFORMED AND NOT AS

  ACCRUING AUTOMATICALLY AS A FUNCTION OF CONTINUED ASSOCIATION

  WITH THE COMPANY.  PP. 96 - 101. 

     2.  WHETHER UNDER A CONTRACT PROVISION APPLICABLE TO THOSE

  EMPLOYEES WHO WERE UNABLE TO ACCUMULATE THE MINIMUM OF 25 WEEKS'

  EMPLOYMENT BECAUSE OF LAYOFFS SHOULD BE DETERMINED BY THE

  DISTRICT COURT ON REMAND.  PP. 101 - 102. 

     MARSHALL, J., WROTE THE OPINION OF THE COURT, IN WHICH ALL

  OTHER MEMBERS JOINED EXCEPT DOUGLAS, J., WHO TOOK NO PART IN THE

  CONSIDERATION OR DECISION OF THE CASE. 

OPINION OF THE COURT BY MR. JUSTICE MARSHALL, ANNOUNCED BY MR. CHIEF
JUSTICE BURGER. 

THROUGH THE MILITARY SELECTIVE SERVICE ACT, CONGRESS HAS SOUGHT TO
PROTEST VETERANS RETURNING TO CIVILIAN JOBS FROM BEING PENALIZED FOR
HAVING SERVED IN THE ARMED FORCES.  SECTION 9 OF THE ACT, 62 STAT. 614,
AS AMENDED, 50 U.S.C. APP. 459, ENSURES A RETURNING SERVICEMAN THE
RIGHT TO BE RESTORED TO HIS JOB WITH THE SAME LEVELS OF SENIORITY,
STATUS, AND PAY THAT HE WOULD HAVE ENJOYED IF HE HAD HELD THE JOB
THROUGHOUT THE TIME HE WAS IN THE MILITARY.  /1/ THIS CASE PRESENTS THE
QUESTION WHETHER THE STATUTE ENTITLES A VETERAN TO VACATION BENEFITS
WHEN, BECAUSE OF HIS DEPARTURE FOR MILITARY SERVICE, HE HAS FAILED TO
SATISFY A SUBSTANTIAL WORK REQUIREMENT UPON WHICH THE VACATION BENEFITS
ARE CONDITIONED. 

        I 

PETITIONER, EARL R. FOSTER, BEGAN WORKING FULL TIME FOR RESPONDENT
DRAVO CORP. IN 1965.  HE WORKED 22 WEEKS FOR THE COMPANY DURING THAT
YEAR AND EARNED 20 HOURS OF PAID VACATION ELGIBILITY.  /2/ IN 1966, HE
WORKED THE ENTIRE YEAR AND EARNED THE STANDARD SECOND-YEAR VACATION
BENEFITS, /3/ FOR WHICH HE SUBSEQUENTLY ACCEPTED PAYMENT. 

IN MARCH OF THE FOLLOWING YEAR, PETITIONER TOOK A MILITARY LEAVE OF
ABSENCE FROM HIS JOB.  BEFORE LEAVING, HE WORKED THE FIRST SEVEN WEEKS
OF 1967 FOR THE COMPANY, AND UPON HIS RETURN SOME 18 MONTHS LATER HE
WORKED THE LAST 13 WEEKS IN 1968.  BECAUSE THE COLLECTIVE-BARGAINING
AGREEMENT BETWEEN PETITIONER'S UNION AND DRAVO REQUIRED EMPLOYEES TO
WORK A MINIMUM OF 25 WEEKS IN EACH CALENDAR YEAR IN ORDER TO EARN FULL
VACATION BENEFITS, /4/ FOSTER WAS NOT AWARDED ANY BENEFITS FOR EITHER
YEAR.  SINCE THAT TIME, HE HAS CONTINUED TO WORK FULL TIME FOR DRAVO
AND HAS RECEIVED FULL VACATION BENEFITS FROM THE COMPANY FOR EACH YEAR
OF HIS EMPLOYMENT. 

UNHAPPY WITH THE DENIAL OF VACATION BENEFITS FOR 1967 AND 1968,
PETITIONER BROUGHT SUIT AGAINST DRAVO IN THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA.  /5/ HE SOUGHT CREDIT FOR FULL
VACATION BENEFITS IN BOTH YEARS, CLAIMING THAT SINCE HE WOULD HAVE
EARNED TWO VACATIONS IF HE HAD WORKED FOR RESPONDENT THROUGHOUT THE
TIME HE WAS IN THE SERVICE, 9 OF THE MILITARY SELECTIVE SERVICE ACT
REQUIRES THAT HE BE CREDITED WITH THE BENEFITS EVEN THOUGH HE FAILED TO
MEET THE 25-WEEK WORK REQUIREMENT IN EITHER YEAR. 

THE DISTRICT COURT HELD THAT SINCE THE VACATION BENEFITS IN QUESTION
DID NOT ACCRUE AUTOMATICALLY WITH CONTINUED EMPLOYMENT, IT DID NOT
VIOLATE THE STATUTE TO DENY THEM TO EMPLOYEES ON MILITARY LEAVE OF
ABSENCE.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT AGREED WITH THE
DISTRICT COURT THAT PETITIONER HAD NO STATUTORY RIGHT TO FULL VACATION
BENEFITS.  FROM ITS EXAMINATION OF THE CONTRACT AND OTHER RELATED
FACTORS, THE COURT CONCLUDED THAT THE VACATION RIGHT IN DISPUTE WAS NOT
A PERQUISITE OF SENIORITY BUT AN EARNED BENEFIT, AND WAS THUS
UNAVAILABLE TO A RETURNING SERVICEMAN WHO HAD NOT SATISFIED THE WORK
REQUIREMENT.  NOTING THAT A LIMITED PRO RATA VACATION PROVISION IN THE
COLLECTIVE-BARGAINING AGREEMENT MIGHT PROVIDE AN ALTERNATIVE BASIS FOR
PETITIONER TO RECEIVE SOME VACATION BENEFITS FOR 1967 AND 1968, THE
COURT REMANDED THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
ON THAT NARROW QUESTION.  490 F.2D 55 (1973).  WE GRANTED CERTIORARI,
419 U.S. 823 (1974), BECAUSE OF AN APPARENT CONFLICT WITH THE DECISIONS
OF THE COURTS OF APPEALS FOR THE SEVENTH AND NINTH CIRCUITS.  SEE EWERT
V. WROUGHT WASHER MFG. CO., 477 F.2D 128 (CA7 1973); LOCAYNIA V.
AMERICAN AIRLINES, 457 F.2D 1253 (CA9), CERT. DENIED, 409 U.S. 982
(1972).  WE AFFIRM. 

        II 

THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, 890,
WHICH WAS VERY SIMILAR TO THE PRESENT 50 U.S.C. APP. 459(C)(1), /6/
PROVIDED THAT ANY PERSON LEAVING A CIVILIAN JOB TO ENTER THE MILITARY
WOULD BE ENTITLED TO BE RESTORED TO A POSITION OF "LIKE SENIORITY,
STATUS, AND PAY" UPON HIS RETURN UNLESS CIRCUMSTANCES HAD SO CHANGED
"AS TO MAKE IT IMPOSSIBLE OR UNREASONABLE TO DO SO."  THE STATUTE
FURTHER REQUIRED THAT THE VETERAN BE RESTORED "WITHOUT LOSS OF
SENIORITY" AND BE CONSIDERED "AS HAVING BEEN ON FURLOUGH OR LEAVE OF
ABSENCE" DURING THE PERIOD OF HIS MILITARY SERVICE. 

ON THE FIRST OF SEVERAL ENCOUNTERS WITH THE ACT, THIS COURT
INTERPRETED THE GUARANTEE AGAINST LOSS OF SENIORITY RIGHTS TO MEAN THAT
THE VETERAN'S TIME IN THE SERVICE MUST BE CREDITED TOWARD HIS SENIORITY
WITH HIS EMPLOYER JUST AS IF HE HAD REMAINED ON THE JOB THROUGHOUT. 
FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. 275, 285 (1946). 
TO DENY HIM CREDIT FOR TIME SPENT IN THE MILITARY WOULD MEAN THAT THE
VETERAN WOULD LOSE GROUND BY REASON OF HIS ABSENCE.  THIS, THE COURT
STATED, WOULD VIOLATE THE STATUTORY PRINCIPLE THAT THE SERVICEMAN "DOES
NOT STEP BACK ON THE SENIORITY ESCALATOR AT THE POINT HE STEPPED OFF. 
HE STEPS BACK ON AT THE PRECISE POINT HE WOULD HAVE OCCUPIED HAD HE
KEPT HIS POSITION CONTINUOUSLY DURING THE WAR."  ID., AT 284 - 285. 
SEE ALSO OAKLEY V. LOUISVILLE & NASHVILLE R. CO., 338 U.S. 278, 283
(1949). 

AFTER THE FISHGOLD DECISION, CONGRESS RE-ENACTED THE STATUTE, ADDING
LANGUAGE THAT EXPRESSLY CODIFIED THE HOLDING IN THAT CASE.  THE
AMENDMENT PROVIDED THAT A VETERAN MUST BE RESTORED TO HIS POSITION WITH
THE STATUS THAT "HE WOULD HAVE ENJOYED IF HE HAD CONTINUED IN SUCH
EMPLOYMENT CONTINUOUSLY FROM THE TIME OF HIS ENTERING THE ARMED FORCES
UNTIL THE TIME OF HIS RESTORATION."  62 STAT. 604, 615 - 616, 50 U.S.C.
APP. 459(C)(2). 

IN SUBSEQUENT CASES, THE COURT HAS CONSISTENTLY APPLIED THE STATUTE
TO ASSURE THAT BENEFITS AND ADVANCEMENTS THAT WOULD NECESSARILY HAVE
ACCRUED BY VIRTUE OF CONTINUED EMPLOYMENT WOULD NOT BE DENIED THE
VETERAN MERELY BECAUSE OF HIS ABSENCE IN THE MILITARY SERVICE. 
MCKINNEY V. MISSOURI-KANSAS-TEXAS R. CO., 357 U.S. 265, 272 (1958).  ON
THE OTHER HAND, WHERE THE CLAIMED BENEFIT REQUIRES MORE THAN SIMPLE
CONTINUED STATUS AS AN EMPLOYEE, THE COURT HAS HELD THAT IT IS NOT
PROTECTED BY THE STATUTE.  SEE ID., AT 273; TILTON V. MISSOURI PACIFIC
R. CO., 376 U.S. 169, 181 (1964). 

IN ACCARDI V. PENNSYLVANIA R. CO., 383 U.S. 225 (1966), THE COURT
APPLIED THESE PRINCIPLES FOR THE FIRST TIME TO A BENEFIT NOT
TRADITIONALLY CONSIDERED A SENIORITY RIGHT.  THE DISPUTE IN THAT CASE
CONCERNED A VETERAN'S ELIGIBILITY FOR A SEVERANCE PAYMENT.  UNDER THE
APPLICABLE COLLECTIVE-BARGAINING AGREEMENT, THE AMOUNT OF SEVERANCE PAY
DUE EACH EMPLOYEE DEPENDED ON THE LENGTH OF THE EMPLOYEE'S "
COMPENSATED SERVICE" WITH THE RESPONDENT RAILROAD.  THE RAILROAD ARGUED
THAT THE ACT WAS INAPPLICABLE BECAUSE THE AMOUNT OF THE SEVERANCE
PAYMENT DID NOT DEPEND DIRECTLY ON SENIORITY.  THE COURT, HOWEVER, TOOK
A BROADER VIEW.  LOOKING BEYOND THE NARROW CHARACTERIZATION OF
SENIORITY RIGHTS IN THE COLLECTIVE-BARGAINING AGREEMENT, THE COURT
CONCLUDED THAT THE SEVERANCE PAYMENTS WERE NOT INTENDED AS A FORM OF
DEFERRED COMPENSATION FOR WORK DONE IN THE PAST, BUT RATHER AS A MEANS
OF COMPENSATING EMPLOYEES FOR THE LOSS OF RIGHTS AND BENEFITS
ACCUMULATED OVER A LONG PERIOD OF SERVICE.  ACCORDINGLY, THE COURT HELD
THAT THE SEVERANCE PAYMENTS IN THAT CASE WERE "JUST AS MUCH A
PERQUISITE OF SENIORITY AS THE MORE TRADITIONAL BENEFITS SUCH AS WORK
PREFERENCE AND ORDER OF LAY-OFF AND RECALL."  ID., AT 230. 

TWO YEARS LATER, IN EAGAR V. MAGMA COPPER CO., 389 U.S. 323 (1967),
THE COURT APPLIED THE STATUTE TO A VACATION AND HOLIDAY PAY PROVISION
IN A COLLECTIVE-BARGAINING AGREEMENT.  THE PETITIONER IN THAT CASE HAD
SATISFIED ALL THE WORK REQUIREMENTS FOR THE BENEFITS IN QUESTION, BUT
HE HAD NOT MET THE FURTHER CONDITIONS THAT HE BE EMPLOYED ON THE ONE
YEAR ANNIVERSARY DATE OF HIS STARTING WORK WITH THE COMPANY, AND THAT
HE BE ON THE PAYROLL FOR THE THREE MONTHS PRECEDING EACH PAID HOLIDAY. 

IN A PER CURIAM OPINION, THE COURT REVERSED THE JUDGMENT FOR THE
COMPANY ON THE AUTHORITY OF ACCARDI.  SINCE THE PETITIONER HAD MET ALL
THE CONTRACTUAL WORK REQUIREMENTS AND WOULD HAVE BEEN ELIGIBLE FOR THE
CONTESTED BENEFITS IF HE HAD SIMPLY REMAINED ON THE COMPANY PAYROLL, IT
WAS UNNECESSARY TO CONSIDER WHETHER THE WORK REQUIREMENTS WOULD HAVE
BARRED VETERANS WHO HAD NOT MET THEM.  ON THE FACTS BEFORE THE COURT,
THE DECISION FELL WITHIN THE PRINCIPLE THAT A RETURNING SERVICEMAN MUST
BE TREATED AS IF HE HAD KEPT HIS JOB CONTINUOUSLY THROUGHOUT THE PERIOD
OF HIS MILITARY SERVICE.  /7/

       III 

PETITIONER ARGUES THAT UNDER ACCARDI AND EAGAR THE VACATION BENEFITS
IN THIS CASE MUST BE GRANTED TO HIM AS A RETURNING SERVICEMAN BECAUSE
THE ENTITLEMENT TO A VACATION IS NOT CLOSELY CORRELATED TO THE AMOUNT
OF WORK ACTUALLY PERFORMED BY THE EMPLOYER.  UNDER THE COLLECTIVE
BARGAINING AGREEMENT, A DRAVO EMPLOYEE THEORETICALLY COULD EARN FULL
VACATION BENEFITS BY DOING AS LITTLE AS ONE HOUR'S WORK IN EACH OF 25
WEEKS DURING THE YEAR.  FROM THIS, PETITIONER CONCLUDES THAT THE
AGREEMENT REALLY CONDITIONS VACATION BENEFITS ONLY ON CONTINUED
EMPLOYMENT, AND THAT DRAVO THEREFORE COULD NOT LEGALLY DENY HIM FULL
VACATION BENEFITS FOR EITHER 1967 OR 1968. 

THIS APPROACH WOULD EXTEND THE STATUTE WELL BEYOND THE LIMITS SET
OUT IN OUR PRIOR CASES.  GENERALLY, THE PRESENCE OF A WORK REQUIREMENT
IS STRONG EVIDENCE THAT THE BENEFIT IN QUESTION WAS INTENDED AS A FORM
OF COMPENSATION.  OF COURSE, AS IN THE ACCARDI CASE, THE WORK
REQUIREMENT MAY BE SO INSUBSTANTIAL THAT IT APPEARS PLAINLY DESIGNED TO
MEASURE TIME ON THE PAYROLL RATHER THAN HOURS ON THE JOB; IN THAT
EVENT, THE ACT REQUIRES THAT THE BENEFIT BY GRANTED TO RETURNING
VETERANS.  BUT WHERE THE WORK REQUIREMENT CONSTITUTES A BONA FIDE
EFFORT TO COMPENSATE FOR WORK ACTUALLY PERFORMED, THE FACT THAT IT
CORRELATES ONLY LOOSELY WITH THE BENEFIT IS NOT ENOUGH TO INVOKE THE
STATUTORY GUARANTEE. 

WE AGREE WITH THE COURT OF APPEALS THAT, UNLIKE THE SEVERANCE
PAYMENTS IN ACCARDI, THE VACATION BENEFITS IN THIS CASE WERE INTENDED
AS A FORM OF SHORT-TERM COMPENSATION FOR WORK PERFORMED.  ALTHOUGH
DRAVO EMPLOYEES WHO WORK FOR 25 WEEKS RECEIVE THE SAME PAID VACATION
RIGHTS AS THOSE WHO WORK A FULL YEAR, THE COLLECTIVE-BARGAINING
AGREEMENT PROVIDES ADDITIONAL VACATION CREDIT FOR EMPLOYEES WHO WORK
OVERTIME FOR A SUBSTANTIAL PERIOD.  THE BENEFITS UNDER THE OVERTIME
VACATION PROVISION INCREASE WITH THE AMOUNT OF OVERTIME WORKED.  IN
ADDITION, THE AGREEMENT PROVIDES THAT IF AN EMPLOYEE IS LAID OFF DURING
THE YEAR AND DOES NOT WORK THE REQUISITE 25 WEEKS, HE WILL BE AWARDED
VACATION BENEFITS ON A PRO RATA BASIS. 

THESE PROVISIONS LEND SUBSTANTIAL SUPPORT TO RESPONDENT'S CLAIM THAT
THE VACATION SCHEME WAS INTENDED AS A FORM OF DEFERRED COMPENSATION. 
PETITIONER'S OBSERVATION THAT AN EMPLOYEE COULD IN THEORY EARN A
VACATION UNDER THE COLLECTIVE-BARGAINING AGREEMENT WITH ONLY A FEW
CAREFULLY SPACED HOURS OF WORK IS NOT ENOUGH TO REBUT THE PLAIN
INDICATION THAT A FULL VACATION WAS INTENDED IN MOST CASES TO BE
AWARDED FOR A FULL YEAR'S WORK.  /8/ 

ON PETITIONER'S THEORY OF THE CASE, THE COMPANY WOULD BE REQUIRED TO
PROVIDE FULL VACATION BENEFITS TO A RETURNING SERVICEMAN IF HE WORKED
NO MORE THAN ONE WEEK IN EACH YEAR; INDEED, FOLLOWING THIS APPROACH TO
ITS LOGICAL LIMITS, A VETERAN WHO SERVED IN THE ARMED FORCES FOR FOUR
YEARS WOULD BE ENTITLED TO ACCUMULATED VACATION BENEFITS FOR ALL FOUR
YEARS UPON HIS RETURN.  THIS RESULT IS SO SHARPLY INCONSISTENT WITH THE
COMMON CONCEPTION OF A VACATION AS A REWARD FOR AND RESPITE FROM A
LENGTHY PERIOD OF LABOR THAT THE STATUTE SHOULD BE APPLIED ONLY WHERE
IT CLEARLY APPEARS THAT VACATIONS WERE INTENDED TO ACCRUE AUTOMATICALLY
AS A FUNCTION OF CONTINUED ASSOCIATION WITH THE COMPANY.  SINCE NO SUCH
SHOWING WAS MADE HERE, AND SINCE PETITIONER HAS NOT MET THE BONA FIDE
WORK REQUIREMENT IN THE COLLECTIVE-BARGAINING AGREEMENT, WE CONCLUDE
THAT 9 DID NOT GUARANTEE HIM FULL VACATION RIGHTS FOR THE TWO YEARS IN
QUESTION.  /9/

        IV 

IN THE ALTERNATIVE, PETITIONER ASSERTS THAT THE STATUTE ENTITLES HIM
AT LEAST TO PRO RATA VACATION BENEFITS FOR THE TIME HE SERVED DRAVO
DURING 1967 AND 1968.  IF HE IS DENIED EVEN A PRO RATA SHARE OF
VACATION BENEFITS, PETITIONER CLAIMS HE WILL IN EFFECT BE PENALIZED FOR
TAKING A MILITARY LEAVE OF ABSENCE, A RESULT THAT THE ACT WAS EXPRESSLY
INTENDED TO PREVENT. 

WE CAN FIND NOTHING IN THE STATUTE, INDEPENDENT OF THE RIGHTS
CONFERRED IN THE COLLECTIVE-BARGAINING AGREEMENT, THAT WOULD JUSTIFY
SUCH A SOLOMONIC SOLUTION.  THE STATUTE REQUIRES THAT A RETURNING
VETERAN BE TREATED THE SAME AS AN EMPLOYEE "ON FURLOUGH OR LEAVE OF
ABSENCE," 50 U.S.C. APP. 459(C)(1), BUT PETITIONER'S SUGGESTION WOULD
GRANT PRO RATA VACATION RIGHTS TO VETERANS REGARDLESS OF WHETHER ANY
OTHER CLASS OF EMPLOYEES WOULD BE SIMILARLY TREATED. 

ALTHOUGH WE REJECT PETITIONER'S STATUTORY THEORY, THE POTENTIAL
AVAILABILITY OF PRO RATA VACATION RIGHTS ENTERS THE CASE IN A SOMEWHAT
DIFFERENT WAY.  THE COLLECTIVE-BARGAINING AGREEMENT PROVIDES PRO RATA
VACATION RIGHTS TO THOSE EMPLOYEES WHO WERE UNABLE TO ACCUMULATE THE
MINIMUM OF 25 WEEKS OF EMPLOYMENT BECAUSE OF LAYOFFS.  ART. XIV, 2.  IN
LIGHT OF THIS PROVISION, THE COURT OF APPEALS NOTED THAT PETITIONER
MIGHT HAVE A CLAIM FOR PRO RATA BENEFITS UNDER THE AGREEMENT.  IT
THEREFORE REMANDED THE CASE TO THE DISTRICT COURT TO DETERMINE WHETHER
PETITIONER HAD ADEQUATELY PRESERVED THAT POINT BEFORE THE DISTRICT
COURT AND, IF SO, WHETHER HE WAS ENTITLED TO SOME VACATION BENEFITS. 
/10/     WE AGREE WITH THE COURT OF APPEALS THAT BECAUSE IT WAS NOT
LITIGATED AT THE TRIAL LEVEL, THIS QUESTION SHOULD BE REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS.  ACCORDINGLY, WE AFFIRM THE
JUDGEMENT OF THE COURT OF APPEALS. 

                    AFFIRMED. 

/1/ SECTION 9(B) PROVIDES A RIGHT TO RE-EMPLOYMENT FOR ANY
SERVICEMAN WHO "HAS LEFT OR LEAVES A POSITION . . . AND . . . MAKES
APPLICATION FOR REEMPLOYMENT WITHIN NINETY DAYS AFTER HE IS RELIEVED
FROM SUCH TRAINING AND SERVICE."  SECTION 9(B)(B)(I) ADDS THAT IF THE
SERVICEMAN IS "STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION,
(HE SHALL) BE RESTORED BY SUCH EMPLOYER . . . TO SUCH POSITION OR TO A
POSITION OF LIKE SENIORITY, STATUS, AND PAY."  SECTION 9(C), WHICH
GOVERNS THE RIGHTS OF THOSE RESTORED TO POSITIONS AFTER RETURN FROM THE
SERVICE, PROVIDES IN RELEVANT PART: 

"(1) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE
PROVISIONS OF . . . THIS SECTION SHALL BE CONSIDERED AS HAVING BEEN ON
FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE
IN THE ARMED FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY,
SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED
BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO
EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER
AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE
DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH
RESTORATION. 

"(2) IT IS DECLARED TO BE THE SENSE OF THE CONGRESS THAT ANY PERSON
WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF . .
. THIS SECTION SHOULD BE SO RESTORED IN SUCH MANNER AS TO GIVE HIM SUCH
STATUS IN HIS EMPLOYMENT AS HE WOULD HAVE ENJOYED IF HE HAD CONTINUED
IN SUCH EMPLOYMENT CONTINUOUSLY FROM THE TIME OF HIS ENTERING THE ARMED
FORCES UNTIL THE TIME OF HIS RESTORATION TO SUCH EMPLOYMENT." 

/2/ THE COLLECTIVE-BARGAINING AGREEMENT BETWEEN DRAVO AND PETITIONER'S
UNION, THE INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF
AMERICA, AFL - CIO, GOVERNED THE ELIGIBILITY CONDITIONS FOR VACATION
BENEFITS.  IN HIS FIRST YEAR WITH THE COMPANY, PETITIONER WAS ELIGIBLE
FOR FOUR HOURS OF PAID VACATION FOR EACH MONTH WORKED, UP TO A MAXIMUM
OF 40 HOURS.  ART. XIV, 1. 

/3/ UNDER THE COLLECTIVE-BARGAINING AGREEMENT, THE LENGTH OF THE
VACATION EARNED EACH YEAR INCREASES WITH THE EMPLOYEE'S SENIORITY.  THE
ORDINARY SECOND-YEAR VACATION IS SEVEN DAYS' LEAVE WITH PAY.  AFTER THE
SECOND YEAR, THE VACATION INCREASES BY ONE DAY PER YEAR, FOR THE FIRST
FIVE YEARS WITH THE COMPANY, AND THEN BY ONE WEEK FOR EACH FIVE YEARS
OF "CONTINUOUS EMPLOYMENT," TO A MAXIMUM OF FIVE WEEKS.  ART. XIV, 1. 

/4/ THE AGREEMENT PROVIDES THAT AFTER THE FIRST YEAR AN EMPLOYEE CAN
QUALIFY FOR A VACATION IF HE HAS RECEIVED EARNINGS IN AT LEAST 25
WORKWEEKS DURING THE CALENDAR YEAR.  A VACATION EARNED IN ONE YEAR CAN
BE TAKEN DURING THE NEXT YEAR AT A TIME DESIGNATED BY THE COMPANY. 
WHEN AN EMPLOYEE IS LAID OFF PRIOR TO TAKING HIS EARNED VACATION, THE
COMPANY GIVES HIM HIS VACATION PAY AT THAT TIME, REGARDLESS OF WHEN HIS
VACATION WAS SCHEDULED.  ART. XIV, 1. 

/5/ PETITIONER HAS BEEN REPRESENTED BY THE GOVERNMENT THROUGHOUT
THIS ACTION.  BY STATUTE, THE UNITED STATES ATTORNEY IS CHARGED WITH
REPRESENTING CLAIMANTS UNDER 9 OF THE MILITARY SELECTIVE SERVICE ACT,
IF THE CLAIMANT REASONABLY APPEARS ENTITLED TO THE BENEFITS IN
DISPUTE.  50 U.S.C. APP. 459(D). 

/6/ THE 1940 ACT WAS ESSENTIALLY RE-ENACTED IN THE SELECTIVE SERVICE
ACT OF 1948, 62 STAT. 604.  THE NAME OF THE ACT WAS CHANGED IN 1951 TO
THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 65 STAT. 75.  IN 1967
IT WAS RENAMED THE MILITARY SELECTIVE SERVICE ACT OF 1967, 81 STAT.
100.  IT WAS GIVEN ITS PRESENT NAME, THE MILITARY SELECTIVE SERVICE
ACT, IN 1971, 85 STAT. 348.  THE PRESENT 9(B) AND 9(C)(1) HAVE REMAINED
LARGELY UNCHANGED SINCE 1940, AND 9(C)(2) HAS BEEN PRESERVED IN ITS
CURRENT FORM SINCE THE RE-ENACTMENT OF 1948. 

THE RE-EMPLOYMENT PROVISIONS OF THE ACT APPLY NOT ONLY TO THOSE
DRAFTED UNDER THE PROVISIONS OF THE ACT, BUT ALSO TO MEN AND WOMEN WHO
ENLIST VOLUNTARILY IN THE ARMED FORCES, AS LONG AS THE PERIOD OF
SERVICE DOES NOT EXCEED FOUR, OR IN CERTAIN CASES, FIVE YEARS.  50
U.S.C. APP. 459(G)(1). 

/7/ THE DISSENTERS IN EAGAR V. MAGMA COPPER CO. ARGUED THAT THE
STATUTE'S PROTECTION APPLIED ONLY TO RIGHTS ASSOCIATED WITH SENIORITY. 
389 U.S. 323, 325 (1967) (DOUGLAS, J., JOINED BY HARLAN AND STEWART,
JJ., DISSENTING).  THEY WOULD HAVE DISTINGUISHED BETWEEN ELIGIBILITY
BASED UPON BEING ON THE PAYROLL ON A PARTICULAR DATE OR FOR A
PARTICULAR PERIOD FROM ELIGIBILITY BASED UPON LENGTH OF SERVICE WITH
THE COMPANY.  THE MAJORITY IMPLICITLY REJECTED THIS DISTINCTION. 

/8/ PETITIONER'S RELIANCE ON THE TREATMENT OF THE WORK REQUIREMENT
IN ACCARDI IS MISPLACED.  THE COURT THERE CONCLUDED THAT THE SEVERANCE
PAYMENTS WERE BASED PRIMARILY ON THE EMPLOYEES' LENGTH OF SERVICE WITH
THE RAILROAD, NOT ON THE ACTUAL TOTAL SERVICE RENDERED.  THE PUTATIVE
"WORK REQUIREMENT" IN THAT CASE, THE COURT CONCLUDED, DID NOT DISGUISE
THE TRUE NATURE OF THE PAYMENTS AS COMPENSATION FOR THE LOSS OF JOBS. 
THE EAGAR CASE PROVIDES EVEN LESS SUPPORT FOR PETITIONER SINCE THAT
CASE DID NOT INVOLVE AN UNSATISFIED WORK REQUIREMENT. 

/9/ IN CONTRAST TO THE CONDITIONS OF ELIGIBILITY FOR A VACATION ARE
THE TERMS GOVERNING THE LENGTH OF THE VACATION TO WHICH AN EMPLOYEE IS
ENTITLED.  AS NOTED ABOVE, THE LENGTH OF VACATION INCREASES WITH THE
EMPLOYEE'S LENGTH OF "CONTINUOUS EMPLOYMENT" WITH DRAVO, WHICH IS
DEFINED IN THE COLLECTIVE-BARGAINING AGREEMENT AS "CONTINUOUS
SENIORITY."  ART.  XIV, 1, 2.  RESPONDENT CONCEDES THAT THE EMPLOYEE'S
TIME IN THE SERVICE MUST BE COUNTED IN DETERMINING THE LENGTH OF THE
VACATION THAT IS EARNED; FOR THE YEARS IN WHICH PETITIONER HAS WORKED
THE 25 WEEKS REQUIRED TO EARN A VACATION, THE LENGTH OF HIS VACATION
HAS BEEN CALCULATED AS IF HE HAD BEEN CONTINUOUSLY EMPLOYED WITH THE
COMPANY SINCE 1965. 

/10/ EVEN IF PETITIONER IS NOT ELIGIBLE FOR VACATION BENEFITS AS A
PURELY CONTRACTUAL MATTER, HE MAY BE ENTITLED TO PRO RATA BENEFITS
UNDER THE "OTHER BENEFITS" PROVISION OF 9(C)(1) OF THE ACT, READ IN
CONJUNCTION WITH THE COLLECTIVE-BARGAINING AGREEMENT.  SINCE THE
STATUTE REQUIRES THAT VACATION BENEFITS BE GRANTED TO RETURNING
VETERANS ON THE SAME BASIS AS THEY ARE TO THOSE ON FURLOUGH OR LEAVE OR
ABSENCE, PETITIONER WOULD BE ENTITLED TO PRO RATA BENEFITS IF THE
LAYOFF REFERRED TO IN THE COLLECTIVE-BARGAINING AGREEMENT INCLUDES A
FURLOUGH OR LEAVE OF ABSENCE, OR IS FOUND TO BE THE EQUIVALENT OF
EITHER. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

HARRY R. SACHSE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL HILLS,
ROBERT E. KOPP, HAROLD C. NYSTROM, AND BOBBYE D. SPEARS. 

ROBERT H. SHOOP, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS CLYDE H. SLEASE. 
..END :





GERSTEIN V. PUGH, 420 U.S. 103 


       GERSTEIN V. PUGH ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 73 - 477.  ARGUED MARCH 25, 1974--REARGUED OCTOBER 21,

           1974--DECIDED FEBRUARY 18, 1975; 483 F.2D 778, AFFIRMED

           IN PART, REVERSED IN PART, AND REMANDED. 


    1.  THE FOURTH AMENDMENT REQUIRES A JUDICIAL DETERMINATION OF

  PROBABLE CAUSE AS A PREREQUISITE TO EXTENDED RESTRAINT OF LIBERTY

  FOLLOWING ARREST.  ACCORDINGLY, THE FLORIDA PROCEDURES CHALLENGED

  HERE WHEREBY A PERSON ARRESTED WITHOUT A WARRANT AND CHARGED BY

  INFORMATION MAY BE JAILED OR SUBJECTED TO OTHER RESTRAINTS

  PENDING TRIAL WITHOUT ANY OPPORTUNITY FOR A PROBABLE CAUSE

  DETERMINATION ARE UNCONSTITUTIONAL.  PP. 111 - 119. 

     (A) THE PROSECUTOR'S ASSESSMENT OF PROBABLE CAUSE, STANDING

  ALONE, DOES NOT MEET THE REQUIREMENTS OF THE FOURTH AMENDMENT AND

IS INSUFFICIENT TO JUSTIFY RESTRAINT OF LIBERTY PENDING TRIAL. 

  PP. 116 - 118. 

     (B) THE CONSTITUTION DOES NOT REQUIRE, HOWEVER, JUDICIAL

  OVERSIGHT OF THE DECISION TO PROSECUTE BY INFORMATION, AND A

  CONVICTION WILL NOT BE VACATED ON THE GROUND THAT THE DEFENDANT

  WAS DETAINED PENDING TRIAL WITHOUT A PROBABLE CAUSE

  DETERMINATION.  PP. 118 - 119. 

     2.  THE PROBABLE CAUSE DETERMINATION, AS AN INITIAL STEP IN
THE

  CRIMINAL JUSTICE PROCESS, MAY BE MADE BY A JUDICIAL OFFICER

  WITHOUT AN ADVERSARY HEARING.  PP. 119 - 125. 

     (A) THE SOLE ISSUE IS WHETHER THERE IS PROBABLE CAUSE FOR

  DETAINING THE ARRESTED PERSON PENDING FURTHER PROCEEDINGS, AND

  THIS ISSUE CAN BE DETERMINED RELIABLY BY THE USE OF INFORMAL

  PROCEDURES.  PP. 120 - 122. 

     (B) BECAUSE OF ITS LIMITED FUNCTION AND ITS NONADVERSARY

  CHARACTER, THE PROBABLE CAUSE DETERMINATION IS NOT A "CRITICAL

  STAGE" IN THE PROSECUTION THAT WOULD REQUIRE APPOINTED COUNSEL. 

  PP. 122 - 123. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN PARTS I AND

  II OF WHICH ALL OTHER MEMBERS JOINED, AND IN PARTS III AND IV OF

  WHICH BURGER, C. J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ.,

  JOINED.  STEWART, J., FILED A CONCURRING OPINION, IN WHICH

  DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED, POST, P. 126. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER A PERSON ARRESTED AND HELD FOR TRIAL
UNDER A PROSECUTOR'S INFORMATION IS CONSTITUTIONALLY ENTITLED TO A
JUDICIAL DETERMINATION OF PROBABLE CAUSE FOR PRETRIAL RESTRAINT OF
LIBERTY. 

        I 

IN MARCH 1971 RESPONDEN S PUGH AND HENDERSON WERE ARRESTED IN DADE
COUNTY, FLORIDA.  EACH WAS CHARGED WITH SEVERAL OFFENSES UNDER A
PROSECUTOR'S INFORMATION.  /1/ PUGH WAS DENIED BAIL BECAUSE ONE OF THE
CHARGES AGAINST HIM CARRIED A POTENTIAL LIFE SENTENCE, AND HENDERSON
REMAINED IN CUSTODY BECAUSE HE WAS UNABLE TO POST A $4,500 BOND. 

IN FLORIDA, INDICTMENTS ARE REQUIRED ONLY FOR PROSECUTION OF CAPITAL
OFFENSES.  PROSECUTORS MAY CHARGE ALL OTHER CRIMES BY INFORMATION,
WITHOUT A PRIOR PRELIMINARY HEARING AND WITHOUT OBTAINING LEAVE OF
COURT.  FLA. RULE CRIM. PROC. 3.140(A); STATE V. HERNANDEZ, 217 SO.2D
190 (FLA. 1968); DI BONA V. STATE, 121 SO.2D 192 (FLA. APP. 1960).  AT
THE TIME RESPONDENTS WERE ARRESTED, A FLORIDA RULE SEEMED TO AUTHORIZE
ADVERSARY PRELIMINARY HEARINGS TO TEST PROBABLE CAUSE FOR DETENTION IN
ALL CASES.  FLA. RULE CRIM. PROC. 1.122 (BEFORE AMENDMENT IN 1972). 
BUT THE FLORIDA COURTS HAD HELD THAT THE FILING OF AN INFORMATION
FORECLOSED THE SUSPECT'S RIGHT TO A PRELIMINARY HEARING.  SEE STATE EX
REL. HARDY V. BLOUNT, 261 SO.2D 172 (FLA. 1972).  /2/ THEY HAD ALSO
HELD THAT HABEAS CORPUS COULD NOT BE USED, EXCEPT PERHAPS IN
EXCEPTIONAL CIRCUMSTANCES, TO TEST THE PROBABLE CAUSE FOR DETENTION
UNDER AN INFORMATION.  SEE SULLIVAN V. STATE EX REL. MCCRORY, 49 SO.2D
794, 797 (FLA. 1951).  THE ONLY POSSIBLE METHODS FOR OBTAINING A
JUDICIAL DETERMINATION OF PROBABLE CAUSE WERE A SPECIAL STATUTE
ALLOWING A PRELIMINARY HEARING AFTER 30 DAYS, FLA. STAT. ANN. 907.045
(1973), /3/ AND ARRAIGNMENT, WHICH THE DISTRICT COURT FOUND WAS OFTEN
DELAYED A MONTH OR MORE AFTER ARREST.  PUGH V. RAINWATER, 332 F.SUPP. 
1107, 1110 (SD FLA. 1971).  /4/ AS A RESULT, A PERSON CHARGED BY
INFORMATION COULD BE DETAINED FOR A SUBSTANTIAL PERIOD SOLELY ON THE
DECISION OF A PROSECUTOR. 

RESPONDENTS PUGH AND HENDERSON FILED A CLASS ACTION AGAINST DADE
COUNTY OFFICIALS IN THE FEDERAL DISTRICT COURT, /5/ CLAIMING A
CONSTITUTIONAL RIGHT TO A JUDICIAL HEARING ON THE ISSUE OF PROBABLE
CAUSE AND REQUESTING DECLARATORY AND INJUNCTIVE RELIEF.  /6/
RESPONDENTS TURNER AND FAULK, ALSO IN CUSTODY UNDER INFORMATION,
SUBSEQUENTLY INTERVENED.  /7/ PETITIONER GERSTEIN, THE STATE ATTORNEY
FOR DADE COUNTY, WAS ONE OF SEVERAL DEFENDANTS.  /8/ 

AFTER AN INITIAL DELAY WHILE THE FLORIDA LEGISLATURE CONSIDERED A
BILL THAT WOULD HAVE AFFORDED PRELIMINARY HEARINGS TO PERSONS CHARGED
BY INFORMATION, THE DISTRICT COURT GRANTED THE RELIEF SOUGHT.  PUGH V.
RAINWATER, SUPRA.  THE COURT CERTIFIED THE CASE AS A CLASS ACTION UNDER
FED. RULE CIV. PROC. 23(B)(2), AND HELD THAT THE FOURTH AND FOURTEENTH
AMENDMENTS GIVE ALL ARRESTED PERSONS CHARGED BY INFORMATION A RIGHT TO
A JUDICIAL HEARING ON THE QUESTION OF PROBABLE CAUSE.  THE DISTRICT
COURT ORDERED THE DADE COUNTY DEFENDANTS TO GIVE THE NAMED PLAINTIFFS
AN IMMEDIATE PRELIMINARY HEARING TO DETERMINE PROBABLE CAUSE FOR
FURTHER DETENTION.  /9/  IT ALSO ORDERED THEM TO SUBMIT A PLAN
PROVIDING PRELIMINARY HEARINGS IN ALL CASES INSTITUTED BY INFORMATION. 

THE DEFENDANTS SUBMITTED A PLAN PREPARED BY SHERIFF E. WILSON PURDY,
AND THE DISTRICT COURT ADOPTED IT WITH MODIFICATIONS.  THE FINAL ORDER
PRESCRIBED A DETAILED POST-ARREST PROCEDURE.  336 F.SUPP.  490 (SD FLA.
1972).  UPON ARREST THE ACCUSED WOULD BE TAKEN BEFORE A MAGISTRATE FOR
A "FIRST APPEARANCE HEARING."  THE MAGISTRATE WOULD EXPLAIN THE
CHARGES, ADVISE THE ACCUSED OF HIS RIGHTS, APPOINT COUNSEL IF HE WAS
INDIGENT, AND PROCEED WITH A PROBABLE CAUSE DETERMINATION UNLESS EITHER
THE PROSECUTOR OR THE ACCUSED WAS UNPREPARED.  IF EITHER REQUESTED MORE
TIME, THE MAGISTRATE WOULD SET THE DATE FOR A "PRELIMINARY HEARING," TO
BE HELD WITHIN FOUR DAYS IF THE ACCUSED WAS IN CUSTODY AND WITHIN 10
DAYS IF HE HAD BEEN RELEASED PENDING TRIAL.  THE ORDER PROVIDED
SANCTIONS FOR FAILURE TO HOLD THE HEARING AT PRESCRIBED TIMES.  AT THE
"PRELIMINARY HEARING" THE ACCUSED WOULD BE ENTITLED TO COUNSEL, AND HE
WOULD BE ALLOWED TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES, TO
SUMMON FAVORABLE WITNESSES, AND TO HAVE A TRANSCRIPT MADE ON REQUEST. 
IF THE MAGISTRATE FOUND NO PROBABLE CAUSE, THE ACCUSED WOULD BE
DISCHARGED.  HE THEN COULD NOT BE CHARGED WITH THE SAME OFFENSE BY
COMPLAINT OR INFORMATION, BUT ONLY BY INDICTMENT RETURNED WITHIN 30
DAYS. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT STAYED THE DISTRICT
COURT'S ORDER PENDING APPEAL, BUT WHILE THE CASE WAS AWAITING DECISION,
THE DADE COUNTY JUDICIARY VOLUNTARILY ADOPTED A SIMILAR PROCEDURE OF
ITS OWN.  UPON LEARNING OF THIS DEVELOPMENT, THE COURT OF APPEALS
REMANDED THE CASE FOR SPECIFIC FINDINGS ON THE CONSTITUTIONALITY OF THE
NEW DADE COUNTY SYSTEM.  BEFORE THE DISTRICT COURT AMENDED THE
PROCEDURAL RULES GOVERNING PRELIMINARY HEARINGS STATEWIDE, AND THE
PARTIES AGREED THAT THE DISTRICT COURT SHOULD DIRECT ITS INQUIRY TO THE
NEW RULES RATHER THAN THE DADE COUNTY PROCEDURES. 

UNDER THE AMENDED RULES EVERY ARRESTED PERSON MUST BE TAKEN BEFORE A
JUDICIAL OFFICER WITHIN 24 HOURS.  FLA. RULE CRIM. PROC. 3.130(B). 
THIS "FIRST APPEARANCE" IS SIMILAR TO THE "FIRST APPEARANCE HEARING"
ORDERED BY THE DISTRICT COURT IN ALL RESPECTS BUT THE CRUCIAL ONE:  THE
MAGISTRATE DOES NOT MAKE A DETERMINATION OF PROBABLE CAUSE.  THE RULE
AMENDMENTS ALSO CHANGED THE PROCEDURE FOR PRELIMINARY HEARINGS,
RESTRICTING THEM TO FELONY CHARGES AND CODIFYING THE RULE THAT NO
HEARINGS ARE AVAILABLE TO PERSONS CHARGED BY INFORMATION OR
INDICTMENT.  RULE 3.131; SEE IN RE RULE 3.131(B), FLORIDA RULES OF
CRIMINAL PROCEDURE, 289 SO.2D 3 (FLA. 1974). 

IN A SUPPLEMENTAL OPINION THE DISTRICT COURT HELD THAT THE AMENDED
RULES HAD NOT ANSWERED THE BASIC CONSTITUTIONAL OBJECTION, SINCE A
DEFENDANT CHARGED BY INFORMATION STILL COULD BE DETAINED PENDING TRIAL
WITHOUT A JUDICIAL DETERMINATION OF PROBABLE CAUSE.  355 F.SUPP.  1286
(SD FLA. 1973).  REAFFIRMING ITS ORIGINAL RULING, THE DISTRICT COURT
DECLARED THAT THE CONTINUATION OF THIS PRACTICE WAS UNCONSTITUTIONAL. 
/10/ THE COURT OF APPEALS AFFIRMED, 483 F.2D 778 (CA5 1973), MODIFYING
THE DISTRICT COURT'S DECREE IN MINOR PARTICULARS AND SUGGESTING THAT
THE FORM OF PRELIMINARY HEARING PROVIDED BY THE AMENDED FLORIDA RULES
WOULD BE ACCEPTABLE, AS LONG AS IT WAS PROVIDED TO ALL DEFENDANTS IN
CUSTODY PENDING TRIAL.  ID., AT 788 - 789. 

STATE ATTORNEY GERSTEIN PETITIONED FOR REVIEW, AND WE GRANTED
CERTIORARI BECAUSE OF THE IMPORTANCE OF THE ISSUE.  /11/ 414 U.S. 1062
(1973).  WE AFFIRM IN PART AND REVERSE IN PART. 

        II 

AS FRAMED BY THE PROCEEDINGS BELOW, THIS CASE PRESENTS TWO ISSUES:
WHETHER A PERSON ARRESTED AND HELD FOR TRIAL ON AN INFORMATION IS
ENTITLED TO A JUDICIAL DETERMINATION OF PROBABLE CAUSE FOR DETENTION,
AND IF SO, WHETHER THE ADVERSARY HEARING ORDERED BY THE DISTRICT COURT
AND APPROVED BY THE COURT OF APPEALS IS REQUIRED BY THE CONSTITUTION. 

        A 

BOTH THE STANDARDS AND PROCEDURES FOR ARREST AND DETENTION HAVE BEEN
DERIVED FROM THE FOURTEENTH AMENDMENT AND ITS COMMON-LAW ANTECEDENTS. 
SEE CUPP V. MURPHY, 412 U.S. 291, 294 - 295 (1973); EX PARTE BOLLMAN, 4
CRANCH 75 (1807); EX PARTE BURFORD, 3 CRANCH 448 (1806).  THE STANDARD
FOR ARREST IS PROBABLE CAUSE, DEFINED IN TERMS OF FACTS AND
CIRCUMSTANCES "SUFFICIENT TO WARRANT A PRUDENT MAN IN BELIEVING THAT
THE (SUSPECT) HAD COMMITTED OR WAS COMMITTING AN OFFENSE."  BECK V.
OHIO, 379 U.S. 89, 91 (1964).  SEE ALSO HENRY V. UNITED STATES, 361
U.S. 98 (1959); BRINEGAR V. UNITED STATES, 338 U.S. 160, 175 - 176
(1949).  THIS STANDARD LIKE THOSE FOR SEARCHES AND SEIZURES, REPRESENTS
A NECESSARY ACCOMMODATION BETWEEN THE INDIVIDUAL'S RIGHT TO LIBERTY AND
THE STATE'S DUTY TO CONTROL CRIME. 

     "THESE LONG-PREVAILING STANDARDS SEEK TO SAFEGUARD CITIZENS

  FROM RASH AND UNREASONABLE INTERFERENCES WITH PRIVACY AND FROM

  UNFOUNDED CHARGES OF CRIME.  THEY ALSO SEEK TO GIVE FAIR LEEWAY

  FOR ENFORCING THE LAW IN THE COMMUNITY'S PROTECTION.  BECAUSE

  MANY SITUATIONS WHICH CONFRONT OFFICERS IN THE COURSE OF

  EXECUTING THEIR DUTIES ARE MORE OR LESS AMBIGUOUS, ROOM MUST BE

  ALLOWED FOR SOME MISTAKES ON THEIR PART.  BUT THE MISTAKES MUST

  BE THOSE OF REASONABLE MEN, ACTING ON FACTS LEADING SENSIBLY TO

  THEIR CONCLUSIONS OF PROBABILITY.  THE RULE OF PROBABLE CAUSE IS

  A PRACTICAL, NONTECHNICAL CONCEPTION AFFORDING THE BEST

  COMPROMISE THAT HAS BEEN FOUND FOR ACCOMMODATING THESE OFTEN

  OPPOSING INTERESTS.  REQUIRING MORE WOULD UNDULY HAMPER LAW

  ENFORCEMENT.  TO ALLOW LESS WOULD BE TO LEAVE LAW-ABIDING

  CITIZENS AT THE MERCY OF THE OFFICERS' WHIM OR CAPRICE."  ID., AT

  176. 

TO IMPLEMENT THE FOURTH AMENDMENT'S PROTECTION AGAINST UNFOUNDED
INVASIONS OF LIBERTY AND PRIVACY, THE COURT HAS REQUIRED THAT THE
EXISTENCE OF PROBABLE CAUSE BE DECIDED BY A NEUTRAL AND DETACHED
MAGISTRATE WHENEVER POSSIBLE.  THE CLASSIC STATEMENT OF THIS PRINCIPLE
APPEARS IN JOHNSON V. UNITED STATES, 333 U.S. 10, 13 - 14 (1948): 

"THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT GRASPED

  BY ZEALOUS OFFICERS, IS NOT THAT IT DENIES LAW ENFORCEMENT THE

  SUPPORT OF THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM

  EVIDENCE.  ITS PROTECTION CONSISTS IN REQUIRING THAT THOSE

  INFERENCES BY DRAWN BY A NEUTRAL AND DETACHED MAGISTRATE INSTEAD

  OF BEING JUDGED BY THE OFFICER ENGAGED IN THE OFTEN COMPETITIVE

  ENTERPRISES OF FERRETING OUT CRIME." 

SEE ALSO TERRY V. OHIO, 392 U.S. 1, 20 - 22 (1968).  /12/ 

MAXIMUM PROTECTION OF INDIVIDUAL RIGHTS COULD BE ASSURED BY
REQUIRING A MAGISTRATE'S REVIEW OF THE FACTUAL JUSTIFICATION PRIOR TO
ANY ARREST, BUT SUCH A REQUIREMENT WOULD CONSTITUTE AN INTOLERABLE
HANDICAP FOR LEGITIMATE LAW ENFORCEMENT.  THUS, WHILE THE COURT HAS
EXPRESSED A PREFERENCE FOR THE USE OF ARREST WARRANTS WHEN FEASIBLE,
BECK V. OHIO, SUPRA, AT 96; WONG SUN V. UNITED STATES, 371 U.S. 471,
479 - 482 (1963), IT HAS NEVER INVALIDATED AN ARREST SUPPORTED BY
PROBABLE CAUSE SOLELY BECAUSE THE OFFICERS FAILED TO SECURE A WARRANT. 
SEE KER V. CALIFORNIA, 374 U.S. 23 (1963); DRAPER V. UNITED STATES, 358
U.S. 307 (1959); TRUPIANO V. UNITED STATES, 334 U.S. 699, 705 (1948). 
/13/ 

UNDER THIS PRACTICAL COMPROMISE, A POLICEMAN'S ON-THE-SCENE
ASSESSMENT OF PROBABLE CAUSE PROVIDES LEGAL JUSTIFICATION FOR ARRESTING
A PERSON SUSPECTED OF CRIME, AND FOR A BRIEF PERIOD OF DETENTION TO
TAKE THE ADMINISTRATIVE STEPS INCIDENT TO ARREST.  ONCE THE SUSPECT IS
IN CUSTODY, HOWEVER, THE REASONS THAT JUSTIFY DISPENSING WITH THE
MAGISTRATE'S NEUTRAL JUDGMENT EVAPORATE.  THERE NO LONGER IS ANY DANGER
THAT THE SUSPECT WILL ESCAPE OR COMMIT FURTHER CRIMES WHILE THE POLICE
SUBMIT THEIR EVIDENCE TO A MAGISTRATE.  AND, WHILE THE STATE'S REASONS
FOR TAKING SUMMARY ACTION SUBSIDE, THE SUSPECT'S NEED FOR A NEUTRAL
DETERMINATION OF PROBABLE CAUSE INCREASES SIGNIFICANTLY.  THE
CONSEQUENCES OF PROLONGED DETENTION MAY BE MORE SERIOUS THAN THE
INTERFERENCE OCCASIONED BY ARREST.  PRETRIAL CONFINEMENT MAY IMPERIL
THE SUSPECT'S JOB, INTERRUPT HIS SOURCE OF INCOME, AND IMPAIR HIS
FAMILY RELATIONSHIPS.  SEE R. GOLDFARB, RANSOM 32 - 91 (1965); L. KATZ,
JUSTICE IS THE CRIME 51 - 62 (1972).  EVEN PRETRIAL RELEASE MAY BE
ACCOMPANIED BY BURDENSOME CONDITIONS THAT EFFECT A SIGNIFICANT
RESTRAINT OF LIBERTY.  SEE, E.G., 18 U.S.C. 3146(A)(2), (5).  WHEN THE
STAKES ARE THIS HIGH, THE DETACHED JUDGMENT OF A NEUTRAL MAGISTRATE IS
ESSENTIAL IF THE FOURTH AMENDMENT IS TO FURNISH MEANINGFUL PROTECTION
FROM UNFOUNDED INTERFERENCE WITH LIBERTY.  ACCORDINGLY, WE HOLD THAT
THE FOURTH AMENDMENT REQUIRES A JUDICIAL DETERMINATION OF PROBABLE
CAUSE AS A PREREQUISITE TO EXTENDED RESTRAINT OF LIBERTY FOLLOWING
ARREST. 

THIS RESULT HAS HISTORICAL SUPPORT IN THE COMMON LAW THAT HAS GUIDED
INTERPRETATION OF THE FOURTH AMENDMENT.  SEE CARROLL V. UNITED STATES,
267 U.S. 132, 149 (1925).  AT COMMON LAW IT WAS CUSTOMARY, IF NOT
OBLIGATORY, FOR AN ARRESTED PERSON TO BE BROUGHT BEFORE A JUSTICE OF
THE PEACE SHORTLY AFTER ARREST.  2 M.HALE,PLEAS OF THE CROWN 77, 81,
95, 121 (1736); 2 W.HAWKINS,PLEAS OF THE CROWN 116 - 117 (4TH ED.
1762).  SEE ALSO KURTZ V. MOFFITT, 115 U.S. 487, 498 - 499 (1885). 
/14/ THE JUSTICE OF THE PEACE WOULD "EXAMINE" THE PRISONER AND THE
WITNESSES TO DETERMINE WHETHER THERE WAS REASON TO BELIEVE THE PRISONER
HAD COMMITTED A CRIME.  IF THERE WAS, THE SUSPECT WOULD BE COMMITTED TO
JAIL OR BAILED PENDING TRIAL.  IF NOT, HE WOULD BE DISCHARGED FROM
CUSTODY.  1 M.HALE,SUPRA,AT 583 - 586; 2 W.HAWKINS,SUPRA,AT 116 - 119;
1 J.STEPHEN,HISTORY OF THE CRIMINAL LAW OF ENGLAND 233 (1833).  /15/
THE INITIAL DETERMINATION OF PROBABLE CAUSE ALSO COULD BE REVIEWED BY
HIGHER COURTS ON A WRIT OF HABEAS CORPUS.  2 W.HAWKINS,SUPRA,AT 112 -
115; 1 J.STEPHEN,SUPRA,AT 243; SEE EX PARTE BOLLMAN, 4 CRANCH 75, 97 -
101 (1807).  THIS PRACTICE FURNISHED THE MODEL FOR CRIMINAL PROCEDURE
IN AMERICA IMMEDIATELY FOLLOWING THE ADOPTION OF THE FOURTH AMENDMENT,
SEE EX PARTE BOLLMAN, SUPRA; /16/ EX PARTE BURFORD, 3 CRANCH 448
(1806); UNITED STATES V. HAMILTON, 3 DALL.  17 (1795), AND THERE ARE
INDICATIONS THAT THE FRAMERS OF THE BILL OF RIGHTS REGARDED IT AS A
MODEL FOR A "REASONABLE" SEIZURE.  SEE DRAPER V. UNITED STATES, 358
U.S. 307, 317 - 320 (1959) (DOUGLAS, J., DISSENTING).  /17/
B 

UNDER THE FLORIDA PROCEDURES CHALLENGED HERE, A PERSON ARRESTED
WITHOUT A WARRANT AND CHARGED BY INFORMATION MAY BE JAILED OR SUBJECTED
TO OTHER RESTRAINTS PENDING TRIAL WITHOUT ANY OPPORTUNITY FOR A
PROBABLE CAUSE DETERMINATION.  /18/ PETITIONER DEFENDS THIS PRACTICE ON
THE GROUND THAT THE PROSECUTOR'S DECISION TO FILE AN INFORMATION IS
ITSELF A DETERMINATION OF PROBABLE CAUSE THAT FURNISHES SUFFICIENT
REASON TO DETAIN A DEFENDANT PENDING TRIAL.  ALTHOUGH A CONSCIENTIOUS
DECISION THAT THE EVIDENCE WARRANTS PROSECUTION AFFORDS A MEASURE OF
PROTECTION AGAINST UNFOUNDED DETENTION, WE DO NOT THINK PROSECUTORIAL
JUDGMENT STANDING ALONE MEETS THE REQUIREMENTS OF THE FOURTH
AMENDMENT.  INDEED, WE THINK THE COURT'S PREVIOUS DECISIONS COMPEL
DISAPPROVAL OF THE FLORIDA PROCEDURE.  IN ALBRECHT V. UNITED STATES,
273 U.S. 1, 5 (1927), THE COURT HELD THAT AN ARREST WARRANT ISSUED
SOLELY UPON A UNITED STATES ATTORNEY'S INFORMATION WAS INVALID BECAUSE
THE ACCOMPANYING AFFIDAVITS WERE DEFECTIVE.  ALTHOUGH THE COURT'S
OPINION DID NOT EXPLICITLY STATE THAT THE PROSECUTOR'S OFFICIAL OATH
COULD NOT FURNISH PROBABLE CAUSE, THAT CONCLUSION WAS IMPLICIT IN THE
JUDGMENT THAT THE ARREST WAS ILLEGAL UNDER THE FOURTH AMENDMENT.  /19/
MORE RECENTLY, IN COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 449 - 453
(1971), THE COURT HELD THAT A PROSECUTOR'S RESPONSIBILITY TO LAW
ENFORCEMENT IS INCONSISTENT WITH THE CONSTITUTIONAL ROLE OF A NEUTRAL
AND DETACHED MAGISTRATE.  WE REAFFIRMED THAT PRINCIPLE IN SHADWICK V.
CITY OF TAMPA, 407 U.S. 345 (1972), AND HELD THAT PROBABLE CAUSE FOR
THE ISSUANCE OF AN ARREST WARRANT MUST BE DETERMINED BY SOMEONE
INDEPENDENT OF POLICE AND PROSECUTION.  SEE ALSO UNITED STATES V.
UNITED STATES DISTRICT COURT, 407 U.S. 297, 317 (1972).  /20/ THE
REASON FOR THIS SEPARATION OF FUNCTIONS WAS EXPRESSED BY MR. JUSTICE
FRANKFURTER IN A SIMILAR CONTEXT: 

"A DEMOCRATIC SOCIETY, IN WHICH RESPECT FOR THE DIGNITY OF ALL MEN
IS CENTRAL, NATURALLY GUARDS AGAINST THE MISUSE OF THE LAW ENFORCEMENT
PROCESS.  ZEAL IN TRACKING DOWN CRIME IS NOT IN ITSELF AN ASSURANCE OF
SOBERNESS OF JUDGMENT.  DISINTERESTEDNESS IN LAW ENFORCEMENT DOES NOT
ALONE PREVENT DISREGARD OF CHERISHED LIBERTIES.  EXPERIENCE HAS
THEREFORE COUNSELED THAT SAFEGUARDS MUST BE PROVIDED AGAINST THE
DANGERS OF THE OVERZEALOUS AS WELL AS THE DESPOTIC.  THE AWFUL
INSTRUMENTS OF THE CRIMINAL LAW CANNOT BE ENTRUSTED TO A SINGLE
FUNCTIONARY.  THE COMPLICATED PROCESS OF CRIMINAL JUSTICE IS THEREFORE
DIVIDED INTO DIFFERENT PARTS, RESPONSIBILITY FOR WHICH IS SEPARATELY
VESTED IN THE VARIOUS PARTICIPANTS UPON WHOM THE CRIMINAL LAW RELIES
FOR ITS VINDICATIONS."  MCNABB V. UNITED STATES, 318 U.S. 332, 343
(1943). 

IN HOLDING THAT THE PROSECUTOR'S ASSESSMENT OF PROBABLE CAUSE IS NOT
SUFFICIENT ALONE TO JUSTIFY RESTRAINT OF LIBERTY PENDING TRIAL, WE DO
NOT IMPLY THAT THE ACCUSED IS ENTITLED TO JUDICIAL OVERSIGHT OR REVIEW
OF THE DECISION TO PROSECUTE.  INSTEAD, WE ADHERE TO THE COURT'S PRIOR
HOLDING THAT A JUDICIAL HEARING IS NOT PREREQUISITE TO PROSECUTION BY
INFORMATION.  BECK V. WASHINGTON, 369 U.S. 541, 545 (1962); LEM WOON V.
OREGON, 229 U.S. 586 (1913).  NOR DO WE RETREAT FROM THE ESTABLISHED
RULE THAT ILLEGAL ARREST OR DETENTION DOES NOT VOID A SUBSEQUENT
CONVICTION.  FRISBIE V. COLLINS, 342 U.S. 519 (1952); KER V. ILLINOIS,
119 U.S. 436 (1886).  THUS, AS THE COURT OF APPEALS NOTED BELOW,
ALTHOUGH A SUSPECT WHO IS PRESENTLY DETAINED MAY CHALLENGE THE PROBABLE
CAUSE FOR THAT CONFINEMENT, A CONVICTION WILL NOT BE VACATED ON THE
GROUND THAT T E DEFENDANT WAS DETAINED PENDING TRIAL WITHOUT A
DETERMINATION OF PROBABLE CAUSE.  483 F.2D,AT 786 - 787.  COMPARE
SCARBROUGH V. DUTTON, 393 F.2D 6 (CA5 1968), WITH BROWN V. FAUNTLEROY,
143 U.S.APP.D.C. 116, 442 F.2D 838 (1971), AND COOLEY V. STONE, 134
U.S.APP.D.C. 317, 414 F.2D 1213 (1969). 

        III 

BOTH THE DISTRICT COURT AND THE COURT OF APPEALS HELD THAT THE
DETERMINATION OF PROBABLE CAUSE MUST BE ACCOMPANIED BY THE FULL PANOPLY
OF ADVERSARY SAFEGUARDS--COUNSEL, CONFRONTATION, CROSS-EXAMINATION, AND
COMPULSORY PROCESS FOR WITNESSES.  A FULL PRELIMINARY HEARING OF THIS
SORT IS MODELED AFTER THE PROCEDURE USED IN MANY STATES TO DETERMINE
WHETHER THE EVIDENCE JUSTIFIES GOING TO TRIAL UNDER AN INFORMATION OR
PRESENTING THE CASE TO A GRAND JURY.  SEE COLEMAN V. ALABAMA, 399 U.S.
1 (1970); Y. KAMISAR, W. LAFAVE & J. ISRAEL, MODERN CRIMINAL PROCEDURE
957 - 967, 996 - 1000 (4TH ED. 1974).  THE STANDARD OF PROOF REQUIRED
OF THE PROSECUTION IS USUALLY REFERRED TO AS "PROBABLE CAUSE,"  BUT IN
SOME JURISDICTIONS IT MAY APPROACH A PRIMA FACIE CASE OF GUILT.  ALI,
MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE, COMMENTARY ON ART. 330, PP. 90
- 91 (TENT.  DRAFT NO. 5, 1972).  WHEN THE HEARING TAKES THIS FORM,
ADVERSARY PROCEDURES ARE CUSTOMARILY EMPLOYED.  THE IMPORTANCE OF THE
ISSUE TO BOTH THE STATE AND THE ACCUSED JUSTIFIES THE PRESENTATION OF
WITNESSES AND FULL EXPLORATION OF THEIR TESTIMONY ON CROSS
EXAMINATION.  THIS KIND OF HEARING ALSO REQUIRES APPOINTMENT OF COUNSEL
FOR INDIGENT DEFENDANTS.  COLEMAN V. ALABAMA, SUPRA.  AND, AS THE
HEARING ASSUMES INCREASED IMPORTANCE AND THE PROCEDURES BECOME MORE
COMPLEX, THE LIKELIHOOD THAT IT CAN BE HELD PROMPTLY AFTER ARREST
DIMINISHES.  SEE ALI, MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE, SUPRA,
AT 33 - 34. 

THESE ADVERSARY SAFEGUARDS ARE NOT ESSENTIAL FOR THE PROBABLE CAUSE
DETERMINATION REQUIRED BY THE FOURTH AMENDMENT.  THE SOLE ISSUE IS
WHETHER THERE IS PROBABLE CAUSE FOR DETAINING THE ARRESTED PERSON
PENDING FURTHER PROCEEDINGS.  THIS ISSUE CAN BE DETERMINED RELIABLY
WITHOUT AN ADVERSARY HEARING.  THE STANDARD IS THE SAME AS THAT FOR
ARREST.  /21/ THAT STANDARD--PROBABLE CAUSE TO BELIEVE THE SUSPECT HAS
COMMITTED A CRIME--TRADITIONALLY HAS BEEN DECIDED BY A MAGISTRATE IN A
NONADVERSARY PROCEEDING ON HEARSAY AND WRITTEN TESTIMONY, AND THE COURT
HAS APPROVED THESE INFORMAL MODES OF PROOF. 

"GUILT IN A CRIMINAL CASE MUST BE PROVED BEYOND A REASONABLE DOUBT
AND BY EVIDENCE CONFINED TO THAT WHICH LONG EXPERIENCE IN THE COMMON
LAW TRADITION, TO SOME EXTENT EMBODIED IN THE CONSTITUTION, HAS
CRYSTALLIZED INTO RULES OF EVIDENCE CONSISTENT WITH THAT STANDARD. 
THESE RULES ARE HISTORICALLY GROUNDED RIGHTS OF OUR SYSTEM, DEVELOPED
TO SAFEGUARD MEN FROM DUBIOUS AND UNJUST CONVICTIONS, WITH RESULTING
FORFEITURES OF LIFE, LIBERTY AND PROPERTY. 

        .  .  .  . 

     "IN DEALING WITH PROBABLE CAUSE, HOWEVER, AS THE VERY NAME

  IMPLIES, WE DEAL WITH PROBABILITIES.  THESE ARE NOT TECHNICAL;

  THEY ARE THE FACTUAL AND PRACTICAL CONSIDERATIONS OF EVERYDAY

  LIFE ON WHICH REASONABLE AND PRUDENT MEN, NOT LEGAL TECHNICIANS,

  ACT.  THE STANDARD OF PROOF IS ACCORDINGLY CORRELATIVE TO WHAT

  MUST BE PROVED."  BRINEGAR V. UNITED STATES, 338 U.S.,AT 174 -

  175. 

CF. MCCRAY V. ILLINOIS, 386 U.S. 300 (1 7). 

THE USE OF AN INFORMAL PROCEDURE IS JUSTIFIED NOT ONLY BY THE LESSER
CONSEQUENCES OF A PROBABLE CAUSE DETERMINATION BUT ALSO BY THE NATURE
OF THE DETERMINATION ITSELF.  IT DOES NOT REQUIRE THE FINE RESOLUTION
OF CONFLICTING EVIDENCE THAT A REASONABLE-DOUBT OR EVEN A PREPONDERANCE
STANDARD DEMANDS, AND CREDIBILITY DETERMINATIONS ARE SELDOM CRUCIAL IN
DECIDING WHETHER THE EVIDENCE SUPPORTS A REASONABLE BELIEF IN GUILT. 
SEE F. MILLER, PROSECUTION:  THE DECISION TO CHARGE A SUSPECT WITH A
CRIME 64 - 109 (1969).  /22/ THIS IS NOT TO SAY THAT CONFRONTATION AND
CROSS-EXAMINATION MIGHT NOT ENHANCE THE RELIABILITY OF PROBABLE CAUSE
DETERMINATIONS IN SOME CASES.  IN MOST CASES, HOWEVER, THEIR VALUE
WOULD BE TOO SLIGHT TO JUSTIFY HOLDING, AS A MATTER OF CONSTITUTIONAL
PRINCIPLE, THAT THESE FORMALITIES AND SAFEGUARDS DESIGNED FOR TRIAL
MUST ALSO BE EMPLOYED IN MAKING THE FOURTH AMENDMENT DETERMINATION OF
PROBABLE CAUSE.  /23/ 

BECAUSE OF ITS LIMITED FUNCTION AND ITS NONADVERSARY CHARACTER, THE
PROBABLE CAUSE DETERMINATION IS NOT A "CRITICAL STAGE" IN THE
PROSECUTION THAT WOULD REQUIRE APPOINTED COUNSEL.  THE COURT HAS
IDENTIFIED AS "CRITICAL STAGES" THOSE PRETRIAL PROCEDURES THAT WOULD
IMPAIR DEFENSE ON THE MERITS IF THE ACCUSED IS REQUIRED TO PROCEED
WITHOUT COUNSEL.  COLEMAN V. ALABAMA, 399 U.S. 1 (1970); UNITED STATES
V. WADE, 388 U.S. 218, 226 - 227 (1967).  IN COLEMAN V. ALABAMA, WHERE
THE COURT HELD THAT A PRELIMINARY HEARING WAS A CRITICAL STAGE OF AN
ALABAMA PROSECUTION, THE MAJORITY AND CONCURRING OPINIONS IDENTIFIED
TWO CRITICAL FACTORS THAT DISTINGUISH THE ALABAMA PRELIMINARY HEARING
FROM THE PROBABLE CAUSE DETERMINATION REQUIRED BY THE FOURTH
AMENDMENT.  FIRST, UNDER ALABAMA LAW THE FUNCTION OF THE PRELIMINARY
HEARING WAS TO DETERMINE WHETHER THE EVIDENCE JUSTIFIED CHARGING THE
SUSPECT WITH AN OFFENSE.  A FINDING OF NO PROBABLE CAUSE COULD MEAN
THAT HE WOULD NOT BE TRIED AT ALL.  THE FOURTH AMENDMENT PROBABLE CAUSE
DETERMINATION IS ADDRESSED ONLY TO PRETRIAL CUSTODY.  TO BE SURE,
PRETRIAL CUSTODY MAY AFFECT TO SOME EXTENT THE DEFENDANT'S ABILITY TO
ASSIST IN PREPARATIONS OF HIS DEFENSE, BUT THIS DOES NOT PRESENT THE
HIGH PROBABILITY OF SUBSTANTIAL HARM IDENTIFIED AS CONTROLLING IN WADE
AND COLEMAN.  SECOND, ALABAMA ALLOWED THE SUSPECT TO CONFRONT AND CROSS
EXAMINE PROSECUTION WITNESSES AT THE PRELIMINARY HEARING.  THE COURT
NOTED THAT THE SUSPECT'S DEFENSE ON THE MERITS COULD BE COMPROMISED IF
HE HAD NO LEGAL ASSISTANCE FOR EXPLORING OR PRESERVING THE WITNESSES'
TESTIMONY.  THIS CONSIDERATION DOES NOT APPLY WHEN THE PROSECUTION IS
NOT REQUIRED TO PRODUCE WITNESSES FOR CROSS-EXAMINATION. 

ALTHOUGH WE CONCLUDE THAT THE CONSTITUTION DOES NOT REQUIRE AN
ADVERSARY DETERMINATION OF PROBABLE CAUSE, WE RECOGNIZE THAT STATE
SYSTEMS OF CRIMINAL PROCEDURE VARY WIDELY.  THERE IS NO SINGLE
PREFERRED PRETRIAL PROCEDURE, AND THE NATURE OF THE PROBABLE CAUSE
DETERMINATION USUALLY WILL BE SHAPED TO ACCORD WITH A STATE'S PRETRIAL
PROCEDURE VIEWED AS A WHOLE.  WHILE WE LIMIT OUR HOLDING TO THE PRECISE
REQUIREMENT OF THE FOURTH AMENDMENT, WE RECOGNIZE THE DESIRABILITY OF
FLEXIBILITY AND EXPERIMENTATION BY THE STATES.  IT MAY BE FOUND
DESIRABLE, FOR EXAMPLE, TO MAKE THE PROBABLE CAUSE DETERMINATION AT THE
SUSPECT'S FIRST APPEARANCE BEFORE A JUDICIAL OFFICER, /24/ SEE MCNABB
V. UNITED STATES, 318 U.S. 332, 342 - 344 (1943), OR THE DETERMINATION
MAY BE INCORPORATED INTO THE PROCEDURE FOR SETTING BAIL OR FIXING OTHER
CONDITIONS OF PRETRIAL RELEASE.  IN SOME STATES, EXISTING PROCEDURES
MAY SATISFY THE REQUIREMENT OF THE FOURTH AMENDMENT.  OTHERS MAY
REQUIRE ONLY MINOR ADJUSTMENT, SUCH AS ACCELERATION OF EXISTING
PRELIMINARY HEARINGS.  CURRENT PROPOSALS FOR CRIMINAL PROCEDURE REFORM
SUGGEST OTHER WAYS OF TESTING PROBABLE CAUSE FOR DETENTION.  /25/
WHATEVER PROCEDURE A STATE MAY ADOPT, IT MUST PROVIDE A FAIR AND
RELIABLE DETERMINATION OF PROBABLE CAUSE AS A CONDITION FOR ANY
SIGNIFICANT PRETRIAL RESTRAINT OF LIBERTY, /26/ AND THIS DETERMINATION
MUST BE MADE BY A JUDICIAL OFFICER EITHER BEFORE OR PROMPTLY AFTER
ARREST.  /27/ 

WE AGREE WITH THE COURT OF APPEALS THAT THE FOURTH AMENDMENT
REQUIRES A TIMELY JUDICIAL DETERMINATION OF PROBABLE CAUSE AS A
PREREQUISITE TO DETENTION, AND WE ACCORDINGLY AFFIRM THAT MUCH OF THE
JUDGMENT.  AS WE DO NOT AGREE THAT THE FOURTH AMENDMENT REQUIRES THE
ADVERSARY HEARING OUTLINED IN THE DISTRICT COURT'S DECREE, WE REVERSE
IN PART AND REMAND TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

                                  IT IS SO ORDERED. 

/1/ RESPONDENT PUGH WAS ARRESTED ON MARCH 3, 1971.  ON MARCH 16 AN
INFORMATION WAS FILED CHARGING HIM WITH ROBBERY, CARRYING A CONCEALED
WEAPON, AND POSSESSION OF A FIREARM DURING COMMISSION OF A FELONY. 
RESPONDENT HENDERSON WAS ARRESTED ON MARCH 2, AND CHARGED BY
INFORMATION ON MARCH 19 WITH THE OFFENSES OF BREAKING AND ENTERING AND
ASSAULT AND BATTERY.  THE RECORD DOES NOT INDICATE WHETHER THERE WAS AN
ARREST WARRANT IN EITHER CASE. 

/2/ FLORIDA LAW ALSO DENIES PRELIMINARY HEARINGS TO PERSONS CONFINED
UNDER INDICTMENT, SEE SANGAREE V. HAMLIN, 235 SO.2D 729 (FLA. 1970);
FLA. RULE CRIM. PROC. 3.131(A); BUT THAT PROCEDURE IS NOT CHALLENGED IN
THIS CASE.  SEE INFRA, AT 117 N. 19. 

/3/ THIS STATUTE MAY HAVE BEEN CONSTRUED TO MAKE THE HEARING
PERMISSIVE INSTEAD OF MANDATORY.  SEE EVANS V. STATE, 197 SO.2D 323
(FLA. APP. 1967); FLA. OP. ATTY. GEN. 067 - 29 (1967).  BUT CF. KARZ V.
OVERTON, 249 763 (FLA. APP.  SO.2D 1971).  IT MAY ALSO HAVE BEEN
SUPERSEDED BY THE SUBSEQUENT AMENDMENTS TO THE RULES OF CRIMINAL
PROCEDURE.  IN RE FLORIDA RULES OF CRIMINAL PROCEDURE, 272 SO.2D 65
(1972). 

/4/ THE FLORIDA RULES DO NOT SUGGEST THAT THE ISSUE OF PROBABLE
CAUSE CAN BE RAISED AT ARRAIGNMENT, FLA. RULE CRIM. PROC. 3.160, BUT
COUNSEL FOR PETITIONER REPRESENTED AT ORAL ARGUMENT THAT ARRAIGNMENT
AFFORDS THE SUSPECT AN OPPORTUNITY TO "ATTACK THE SUFFICIENCY OF THE
EVIDENCE TO HOLD HIM."  TR. OF ORAL ARG. 17 (MAR. 25, 1974).  THE COURT
OF APPEALS ASSUMED, WITHOUT DECIDING, THAT THIS WAS TRUE.  483 F.2D
778, 781 N. 8 (CA5 1973). 

/5/ THE COMPLAINT WAS FRAMED UNDER 42 U.S.C. 1983, AND JURISDICTION
IN THE DISTRICT COURT WAS BASED ON 28 U.S.C. 1343(3). 

/6/ RESPONDENTS DID NOT ASK FOR RELEASE FROM STATE CUSTODY, EVEN AS
AN ALTERNATIVE REMEDY.  THEY ASKED ONLY THAT THE STATE AUTHORITIES BE
ORDERED TO GIVE THEM A PROBABLE CAUSE DETERMINATION.  THIS WAS ALSO THE
ONLY RELIEF THAT THE DISTRICT COURT ORDERED FOR THE NAMED RESPONDENTS. 
332 F.SUPP.  1107, 1115 - 1116, (SD FLA. 1971).  BECAUSE RELEASE WAS
NEITHER ASKED NOR ORDERED, THE LAWSUIT DID NOT COME WITHIN THE CLASS OF
CASES FOR WHICH HABEAS CORPUS IS THE EXCLUSIVE REMEDY.  PREISER V.
RODRIGUEZ, 411 U.S. 475 (1973); SEE WOLFF V. MCDONNELL, 418 U.S. 539,
554 - 555 (1974).     /7/ TURNER WAS BEING HELD ON A CHARGE OF AUTO
THEFT, FOLLOWING ARREST ON MARCH 11, 1971.  FAULK WAS ARRESTED ON MARCY
19 ON CHARGES OF SOLICITING A RIDE AND POSSESSION OF MARIHUANA. 

/8/ THE NAMED DEFENDANTS INCLUDED JUSTICES OF THE PEACE AND JUDGES OF
SMALL-CLAIMS COURTS, WHO WERE AUTHORIZED TO HOLD PRELIMINARY HEARINGS
IN CRIMINAL CASES, AND A GROUP OF LAW ENFORCEMENT OFFICERS WITH POWER
TO MAKE ARRESTS IN DADE COUNTY.  GERSTEIN WAS THE ONLY ONE WHO
PETITIONED FOR CERTIORARI. 

/9/ THE DISTRICT COURT CORRECTLY HELD THAT RESPONDENTS' CLAIM FOR
RELIEF WAS NOT BARRED BY THE EQUITABLE RESTRICTIONS ON FEDERAL
INTERVENTION IN STATE PROSECUTIONS, YOUNGER V. HARRIS, 401 U.S. 37
(1971).  THE INJUNCTION WAS NOT DIRECTED AT THE STATE PROSECUTIONS AS
SUCH, BUT ONLY AT THE LEGALITY OF PRETRIAL DETENTION WITHOUT A JUDICIAL
HEARING, AN ISSUE THAT COULD NOT BE RAISED IN DEFENSE OF THE CRIMINAL
PROSECUTION.  THE ORDER TO HOLD PRELIMINARY HEARINGS COULD NOT
PREJUDICE THE CONDUCT OF THE TRIAL ON THE MERITS.  SEE CONOVER V.
MONTEMURO, 477 F.2D 1073, 1082 (CA3 1972); CF. PEREZ V. LEDESMA, 401
U.S. 82 (1971); STEFANELLI V. MINARD, 342 U.S. 117 (1951). 

/10/ ALTHOUGH THIS RULING HELD A STATEWIDE "LEGISLATIVE RULE"
UNCONSTITUTIONAL, IT WAS NOT O TSIDE THE JURISDICTION OF A SINGLE JUDGE
BY VIRTUE OF 28 U.S.C. 2281.  THE ORIGINAL COMPLAINT DID NOT ASK FOR AN
INJUNCTION AGAINST ENFORCEMENT OF ANY STATE STATUTE OR LEGISLATIVE RULE
OF STATEWIDE APPLICATION, SINCE THE PRACTICE OF DENYING PRELIMINARY
HEARINGS TO PERSONS CHARGED BY INFORMATION WAS THEN EMBODIED ONLY IN
JUDICIAL DECISIONS.  THE DISTRICT COURT THEREFORE HAD JURISDICTION TO
ISSUE THE INITIAL INJUNCTION, AND THE COURT OF APPEALS HAD JURISDICTION
OVER THE APPEAL.  ON REMAND, THE CONSTITUTIONALITY OF A STATE "STATUTE"
WAS DRAWN INTO QUESTION FOR THE FIRST TIME WHEN THE CRIMINAL RULES
WERE AMENDED.  THE DISTRICT COURT'S SUPPLEMENTAL OPINION CAN FAIRLY BE
READ AS A DECLARATORY JUDGMENT THAT THE AMENDED RULES WERE
UNCONSTITUTIONAL; THE INJUNCTIVE DECREE WAS NEVER AMENDED TO
INCORPORATE THAT HOLDING; AND THE OPINION IN THE COURT OF APPEALS IS
NOT INCONSISTENT WITH THE CONCLUSION THAT THE DISTRICT COURT DID NOT
ENJOIN ENFORCEMENT OF THE STATEWIDE RULE.  SEE 483 F.2D,AT 788 - 790. 
ACCORDINGLY, A DISTRICT COURT OF THREE JUDGES WAS NOT REQUIRED FOR THE
ISSUANCE OF THIS ORDER.  SEE KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144,
152 - 155 (1963); FLEMMING V. NESTOR, 363 U.S. 603, 606 - 608 (1960). 

/11/ AT ORAL ARGUMENT COUNSEL INFORMED US THAT THE NAMED RESPONDENTS
HAVE BEEN CONVICTED.  THEIR PRETRIAL DETENTION THEREFORE HAS ENDED. 
THIS CASE BELONGS, HOWEVER, TO THAT NARROW CLASS OF CASES IN WHICH THE
TERMINATION OF A CLASS REPRESENTATIVE'S CLAIM DOES NOT MOOT THE CLAIMS
OF THE UNNAMED MEMBERS OF THE CLASS.  SEE SOSNA V. IOWA, 419 U.S. 393
(1975).  PRETRIAL DETENTION IS BY NATURE TEMPORARY, AND IT IS MOST
UNLIKELY THAT ANY GIVEN INDIVIDUAL COULD HAVE HIS CONSTITUTIONAL CLAIM
DECIDED ON APPEAL BEFORE HE IS EITHER RELEASED OR CONVICTED.  THE
INDIVIDUAL COULD NONETHELESS SUFFER REPEATED DEPRIVATIONS, AND IT IS
CERTAIN THAT OTHER PERSONS SIMILARLY SITUATED WILL BE DETAINED UNDER
THE ALLEGEDLY UNCONSTITUTIONAL PROCEDURES.  THE CLAIM, IN SHORT, IS ONE
THAT IS DISTINCTLY "CAPABLE OF REPETITION, YET EVADING REVIEW." 

AT THE TIME THE COMPLAINT WAS FILED, THE NAMED RESPONDENTS WERE
MEMBERS OF A CLASS OF PERSONS DETAINED WITHOUT A JUDICIAL PROBABLE
CAUSE DETERMINATION, BUT THE RECORD DOES NOT INDICATE WHETHER ANY OF
THEM WERE STILL IN CUSTODY AWAITING TRIAL WHEN THE DISTRICT COURT
CERTIFIED THE CLASS.  SUCH A SHOWING ORDINARILY WOULD BE REQUIRED TO
AVOID MOOTNESS UNDER SOSNA.  BUT THIS CASE IS A SUITABLE EXCEPTION TO
THAT REQUIREMENT.  SEE SOSNA, SUPRA, AT 402 N. 11; CF. RIVERA V.
FREEMAN, 469 F.2D 1159, 1162 - 1163 (CA9 1972).  THE LENGTH OF PRETRIAL
CUSTODY CANNOT BE ASCERTAINED AT THE OUTSET, AND IT MAY BE ENDED AT ANY
TIME BY RELEASE ON RECOGNIZANCE, DISMISSAL OF THE CHARGES, OR A GUILTY
PLEA, AS WELL AS BY ACQUITTAL OR CONVICTION AFTER TRIAL.  IT IS BY NO
MEANS CERTAIN THAT ANY GIVEN INDIVIDUAL, NAMED AS PLAINTIFF, WOULD BE
IN PRETRIAL CUSTODY LONG ENOUGH FOR A DISTRICT JUDGE TO CERTIFY THE
CLASS.  MOREOVER, IN THIS CASE THE CONSTANT EXISTENCE OF A CLASS OF
PERSONS SUFFERING THE DEPRIVATION IS CERTAIN.  THE ATTORNEY
REPRESENTING THE NAMED RESPONDENTS IS A PUBLIC DEFENDER, AND WE CAN
SAFELY ASSUME THAT HE HAS OTHER CLIENTS WITH A CONTINUING LIVE INTEREST
IN THE CASE. 

/12/ WE REITERATED THIS PRINCIPLE IN UNITED STATES V. UNITED STATES
DISTRICT COURT, 407 U.S. 297 (1972).  IN TERMS THAT APPLY EQUALLY TO
ARRESTS, WE DESCRIBED THE "VERY HEART OF THE FOURTH AMENDMENT
DIRECTIVE" AS A REQUIREMENT THAT "WHERE PRACTICAL, A GOVERNMENTAL
SEARCH AND SEIZURE SHOULD REPRESENT BOTH THE EFFORTS OF THE OFFICER TO
GATHER EVIDENCE OF WRONGFUL ACTS AND THE JUDGMENT OF THE MAGISTRATE
THAT THE COLLECTED EVIDENCE IS SUFFICIENT TO JUSTIFY INVASION OF A
CITIZEN'S PRIVATE PREMISES OR CONVERSATION."  ID., AT 316. 

/13/ ANOTHER ASPECT OF TRUPIANO WAS OVERRULED IN UNITED STATES V.
RABINOWITZ, 339 U.S. 56 (1950), WHICH WAS OVERRULED IN TURN BY CHIMEL
V. CALIFORNIA, 395 U.S. 752 (1969). 

THE ISSUE OF WARRANTLESS ARREST THAT HAS GENERATED THE MOST
CONTROVERSY, AND WHICH REMAINS UNSETTLED, IS WHETHER AND UNDER WHAT
CIRCUMSTANCES AN OFFICER MAY ENTER A SUSPECT'S HOME TO MAKE A
WARRANTLESS ARREST.  SEE COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 474 -
481 (1971); ID., AT 510 - 512, AND N. 1 (WHITE, J., DISSENTING); JONES
V. UNITED STATES, 357 U.S. 493, 499 - 500 (1958). 

/14/ THE PRIMARY MOTIVATION FOR THE REQUIREMENT SEEMS TO HAVE BEEN
THE PENALTY FOR ALLOWING AN OFFENDER TO ESCAPE, IF HE HAD IN FACT
COMMITTED THE CRIME, AND THE FEAR OF LIABILITY FOR FALSE IMPRISONMENT,
IF HE HAD NOT.  BUT HALE ALSO RECOGNIZED THAT A JUDICIAL WARRANT OF
COMMITMENT, CALLED A MITTIMUS, WAS REQUIRED FOR MORE THAN BRIEF
DETENTION. 

"WHEN A PRIVATE PERSON HATH ARRESTED A FELON, OR ONE SUSPECTED OF
FELONY, HE MAY DETAIN HIM IN CUSTODY TILL HE CAN REASONABLY DISMISS
HIMSELF OF HIM; BUT WITH AS MUCH SPEED AS CONVENIENTLY HE CAN, HE MAY
DO EITHER OF THESE THINGS. 

"1.  HE MAY CARRY HIM TO THE COMMON GAOL, . . . BUT THAT IS NOW
RARELY DONE 

"2.  HE MAY DELIVER HIM TO THE CONSTABLE OF THE VILL, WHO MAY EITHER
CARRY HIM TO THE COMMON GAOL, . . . OR TO A JUSTICE OF PEACE TO BE
EXAMINED, AND FARTHER PROCEEDED AGAINST AS CASE SHALL REQUIRE.  . . . 

"3.  OR HE MAY CARRY HIM IMMEDIATELY TO ANY JUSTICE OF PEACE OF THE
COUNTY WHERE HE IS TAKEN, WHO UPON EXAMINATION MAY DISCHARGE, BAIL, OR
COMMIT HIM, AS THE CASE SHALL REQUIRE. 

"AND THE BRINGING THE OFFENDER EITHER BY THE CONSTABLE OR PRIVATE
PERSON TO A JUSTICE OF PEACE IS MOST USUAL AND SAFE, BECAUSE A GAOLER
WILL EXPECT A MITTIMUS FOR HIS WARRANT OF DETAINING."  1 M.HALE,PLEAS
OF THE CROWN 589 - 590 (1736). 

/15/ THE EXAMINATION OF THE PRISONER WAS INQUISITORIAL, AND THE
WITNESSES WERE QUESTIONED OUTSIDE THE PRISONER'S PRESENCE.  ALTHOUGH
THIS METHOD OF PROCEEDING WAS CONSIDERED QUITE HARSH, 1 J. STEPHEN,
SUPRA, AT 219 - 225, IT WAS WELL ESTABLISHED THAT THE PRISONER WAS
ENTITLED TO BE DISCHARGED IF THE INVESTIGATION TURNED UP INSUFFICIENT
EVIDENCE OF HIS GUILT.  ID., AT 233. 

/16/ IN EX PARTE BOLLMAN, TWO MEN CHARGED IN THE AARON BURR CASE
WERE COMMITTED FOLLOWING AN EXAMINATION IN THE CIRCUIT COURT OF THE
DISTRICT OF COLUMBIA.  THEY FILED A PETITION FOR WRIT OF HABEAS CORPUS
IN THE SUPREME COURT.  THE COURT, IN AN OPINION BY MR. CHIEF JUSTICE
MARSHALL, AFFIRMED ITS JURISDICTION TO ISSUE HABEAS CORPUS TO PERSONS
IN CUSTODY BY ORDER OF FEDERAL TRIAL COURTS.  THEN, FOLLOWING ARGUMENTS
ON THE FOURTH AMENDMENT REQUIREMENT OF PROBABLE CAUSE, THE COURT
SURVEYED THE EVIDENCE AGAINST THE PRISONERS AND HELD THAT IT DID NOT
ESTABLISH PROBABLE CAUSE THAT THEY WERE GUILTY OF TREASON.  THE
PRISONERS WERE DISCHARGED. 

/17/ SEE ALSO N. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION 15 - 16 (1937).  A SIMILAR
PROCEDURE AT COMMON LAW, THE WARRANT FOR RECOVERY OF STOLEN GOODS, IS
SAID TO HAVE FURNISHED THE MODEL FOR A "REASONABLE" SEARCH UNDER THE
FOURTH AMENDMENT.  THE VICTIM WAS REQUIRED TO APPEAR BEFORE A JUSTICE
OF THE PEACE AND MAKE AN OATH OF PROBABLE CAUSE THAT HIS GOODS COULD BE
FOUND IN A PARTICULAR PLACE.  AFTER THE WARRANT WAS EXECUTED, AND THE
GOODS SEIZED, THE VICTIM AND THE ALLEGED THIEF WOULD APPEAR BEFORE THE
JUUSTICE OF THE PEACE FOR A PROMPT DETERMINATION OF THE CAUSE FOR
SEIZURE OF THE GOODS AND DETENTION OF THE THIEF.  2 M.HALE,SUPRA,AT 149
- 152; T. TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 24 - 25,
39 - 40 (1969); SEE BOYD V. UNITED STATES, 116 U.S. 616, 626 - 629
(1886). 

/18/ A PERSON ARRESTED UNDER A WARRANT WOULD HAVE RECEIVED A PRIOR
JUDICIAL DETERMINATION OF PROBABLE CAUSE.  UNDER FLA. RULE CRIM. PROC.
3.120, A WARRANT MAY BE ISSUED UPON A SWORN COMPLAINT THAT STATES FACTS
SHOWING THAT THE SUSPECT HAS COMMITTED A CRIME.  THE MAGISTRATE MAY
ALSO TAKE TESTIMONY UNDER OATH TO DETERMINE IF THERE IS REASONABLE
GROUND TO BELIEVE THE COMPLAINT IS TRUE. 

/19/ BY CONTRAST, THE COURT HAS HELD THAT AN INDICTMENT, "FAIR UPON
ITS FACE," AND RETURNED BY A "PROPERLY CONSTITUTED GRAND JURY,"
CONCLUSIVELY DETERMINES THE EXISTENCE OF PROBABLE CAUSE AND REQUIRES
ISSUANCE OF AN ARREST WARRANT WITHOUT FURTHER INQUIRY.  EX PARTE UNITED
STATES, 287 U.S. 241, 250 (1932).  SEE ALSO GIODENELLO V. UNITED
STATES, 357 U.S. 480, 487 (1958).  THE WILLINGNESS TO LET A GRAND
JURY'S JUDGMENT SUBSTITUTE FOR THAT OF A NEUTRAL AND DETACHED
MAGISTRATE IS ATTRIBUTABLE TO THE GRAND JURY'S RELATIONSHIP TO THE
COURTS AND ITS HISTORICAL ROLE OF PROTECTING INDIVIDUALS FROM UNJUST
PROSECUTION.  SEE UNITED STATES V. CALANDRA, 414 U.S. 338, 342 - 346
(1974). 

/20/ THE COURT HAD EARLIER REACHED A DIFFERENT RESULT IN OCAMPO V.
UNITED STATES, 234 U.S. 91 (1914), A CRIMINAL APPEAL FROM THE
PHILIPPINE ISLANDS.  INTERPRETING A STATUTORY GUARANTEE SUBSTANTIALLY
IDENTICAL TO THE FOURTH AMENDMENT, ACT OF JULY 1, 1902, 5, 32 STAT.
693, THE COURT HELD THAT AN ARREST WARRANT COULD ISSUE SOLELY UPON A
PROSECUTOR'S INFORMATION.  THE COURT HAS SINCE HELD THAT INTERPRETATION
OF A STATUTORY GUARANTEE APPLICABLE TO THE PHILIPPINES IS NOT
CONCLUSIVE FOR INTERPRETATION OF A COGNATE PROVISION IN THE FEDERAL
CONSTITUTION, GREEN V. UNITED STATES, 355 U.S. 184, 194 - 198 (1957). 
EVEN IF IT WERE, THE RESULT REACHED IN OCAMPO IS INCOMPATIBLE WITH THE
LATER HOLDINGS OF ALBRECHT, COOLIDGE, AND SHADWICK. 

/21/ BECAUSE THE STANDARDS ARE IDENTICAL, ORDINARILY THERE IS NO
NEED FOR FURTHER INVESTIGATION BEFORE THE PROBABLE CAUSE DETERMINATION
CAN BE MADE. 

"PRESUMABLY, WHOMEVER THE POLICY ARREST THEY MUST ARREST ON
'PROBABLE CAUSE.'  IT IS NOT THE FUNCTION OF THE POLICE TO ARREST, AS
IT WERE, AT LARGE AND TO USE AN INTERROGATING PROCESS AT POLICE
HEADQUARTERS IN ORDER TO DETERMINE WHOM THEY SHOULD CHARGE BEFORE A
COMMITTING MAGISTRATE ON 'PROBABLE CAUSE.'"  MALLORY V. UNITED STATES,
354 U.S. 449, 456 (1957). 

/22/ IN MORRISSEY V. BREWER, 408 U.S. 471 (1972), AND GAGNON V.
SCARPELLI, 411 U.S. 778 (1973), WE HELD THAT A PAROLEE OR PROBATIONER
ARRESTED PRIOR TO REVOCATION IS ENTITLED TO AN INFORMAL PRELIMINARY
HEARING AT THE PLACE OF ARREST, WITH SOME PROVISION FOR LIVE
TESTIMONY.  408 U.S.,AT 487; 411 U.S.,AT 786.  THAT PRELIMINARY
HEARING, MORE THAN THE PROBABLE CAUSE DETERMINATION REQUIRED BY THE
FOURTH AMENDMENT, SERVES THE PURPOSE OF GATHERING AND PRESERVING LIVE
TESTIMONY, SINCE THE FINAL REVOCATION HEARING FREQUENTLY IS HELD AT
SOME DISTANCE FROM THE PLACE WHERE THE VIOLATION OCCURRED.  408 U.S.,AT
485; 411 U.S.,AT 782 - 783, N. 5.  MOREOVER, REVOCATION PROCEEDINGS MAY
OFFER LESS PROTECTION FROM INITIAL ERROR THAN THE MORE FORMAL CRIMINAL
PROCESS, WHERE VIOLATIONS ARE DEFINED BY STATUTE AND THE PROSECUTOR HAS
A PROFESSIONAL DUTY NOT TO CHARGE A SUSPECT WITH CRIME UNLESS HE IS
SATISFIED OF PROBABLE CAUSE.  SEE ABA CODE OF PROFESSIONAL
RESPONSIBILITY DR 7 - 103(A) (FINAL DRAFT 1969) (A PROSECUTOR "SHALL
NOT INSTITUTE OR CAUSE TO BE INSTITUTED CRIMINAL CHARGES WHEN HE KNOWS
OR IT IS OBVIOUS THAT THE CHARGES ARE NOT SUPPORTED BY PROBABLE
CAUSE"); AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, THE PROSECUTION FUNCTION 1.1, 3.4, 3.9 (1974); AMERICAN
COLLEGE OF TRIAL LAWYERS, CODE OF TRIAL CONDUCT, RULE 4(C) (1963). 

/23/ CRIMINAL JUSTICE IS ALREADY OVERBURDENED BY THE VOLUME OF CASES
AND THE COMPLEXITIES OF OUR SYSTEM.  THE PROCESSING OF MISDEMEANORS, IN
PARTICULAR, AND THE EARLY STAGES OF PROSECUTION GENERALLY ARE MARKED BY
DELAYS THAT CAN SERIOUSLY AFFECT THE QUALITY OF JUSTICE.  A
CONSTITUTIONAL DOCTRINE REQUIRING ADVERSARY HEARINGS FOR ALL PERSONS
DETAINED PENDING TRIAL COULD EXACERBATE THE PROBLEM OF PRETRIAL DELAY. 

/24/ SEVERAL STATES ALREADY AUTHORIZE A DETERMINATION OF PROBABLE
CAUSE AT THIS STAGE OR IMMEDIATELY THEREAFTER.  SEE HAWAII REV. STAT.
708 - 9(5), 710 - 7 (1968); VT. RULES CRIM. PROC. 3(B), 5(C).  THIS
COURT HAS INTERPRETED THE FEDERAL RULES OF CRIMINAL PROCEDURE TO
REQUIRE A DETERMINATION OF PROBABLE CAUSE AT THE FIRST APPEARANCE. 
JABEN V. UNITED STATES, 381 U.S. 214, 218 (1965); MALLORY V. UNITED
STATES, 354 U.S. 449, 454 (1957). 

/25/ UNDER THE UNIFORM RULES OF CRIMINAL PROCEDURE (PROPOSED FINAL
DRAFT 1974), A PERSON ARRESTED WITHOUT A WARRANT IS ENTITLED, "WITHOUT
UNNECESSARY DELAY," TO A FIRST APPEARANCE BEFORE A MAGISTRATE AND A
DETERMINATION THAT GROUNDS EXIST FOR ISSUANCE OF AN ARREST WARRANT. 
THE DETERMINATION MAY BE MADE ON AFFIDAVITS OR TESTIMONY, IN THE
PRESENCE OF THE ACCUSED.  RULE 311.  PERSONS WHO REMAIN IN CUSTODY FOR
INABILITY TO QUALIFY FOR PRETRIAL RELEASE ARE OFFERED ANOTHER
OPPORTUNITY FOR A PROBABLE CAUSE DETERMINATION AT THE DETENTION
HEARING, HELD NO MORE THAN FIVE DAYS AFTER ARREST.  THIS IS AN
ADVERSARY HEARING, AND THE PARTIES MAY SUMMON WITNESSES, BUT RELIABLE
HEARSAY EVIDENCE MAY BE CONSIDERED.  RULE 344.     THE ALI MODEL CODE
OF PRE-ARRANGEMENT PROCEDURE (TENT.  DRAFT NO. 5, 1972, AND TENT. 
DRAFT NO. 5A, 1973) ALSO PROVIDES A FIRST APPEARANCE, AT WHICH A
WARRANTLESS ARREST MUST BE SUPPORTED BY A REASONABLY DETAILED WRITTEN
STATEMENT OF FACTS.  310.1.  THE MAGISTRATE MAY MAKE A DETERMINATION OF
PROBABLE CAUSE TO HOLD THE ACCUSED, BUT HE IS NOT REQUIRED TO DO SO AND
THE ACCUSED MAY REQUEST AN ATTORNEY FOR AN "ADJOURNED SESSION" OF THE
FIRST APPEARANCE TO BE HELD WITHIN TWO "COURT DAYS."  AT THAT SESSION,
THE MAGISTRATE MAKES A DETERMINATION OF PROBABLE CAUSE UPON A
COMBINATION OF WRITTEN AND LIVE TESTIMONY. 

"THE ARRESTED PERSON MAY PRESENT WRITTEN AND TESTIMONIAL EVIDENCE
AND ARGUMENTS FOR HIS DISCHARGE AND THE STATE MAY PRESENT ADDITIONAL
WRITTEN AND TESTIMONIAL EVIDENCE AND ARGUMENTS THAT THERE IS REASONABLE
CAUSE TO BELIEVE THAT HE HAS COMMITTED THE CRIME OF WHICH HE IS
ACCUSED.  THE STATE'S SUBMISSION MAY BE MADE BY MEANS OF AFFIDAVITS,
AND NO WITNESSES SHALL BE REQUIRED TO APPEAR UNLESS THE COURT, IN THE
LIGHT OF THE EVIDENCE AND ARGUMENTS SUBMITTED BY THE PARTIES,
DETERMINES THAT THERE IS A BASIS FOR BELIEVING THAT THE APPEARANCE OF
ONE OR MORE WITNESSES FOR WHOM THE ARRESTED PERSON SEEKS SUBPEONAS
MIGHT LEAD TO A FINDING THAT THERE IS NO REASONABLE CAUSE."  310.2(2)
(TENT.  DRAFT NO. 5A, 1973). 

/26/ BECAUSE THE PROBABLE CAUSE DETERMINATION IS NOT A
CONSTITUTIONAL PREREQUISITE TO THE CHARGING DECISION, IT IS REQUIRED
ONLY FOR THOSE SUSPECTS WHO SUFFER RESTRAINTS ON LIBERTY OTHER THAN THE
CONDITION THAT THEY APPEAR FOR TRIAL.  THERE ARE MANY KINDS OF PRETRIAL
RELEASE AND MANY DEGREES OF CONDITIONAL LIBERTY.  SEE 18 U.S.C. 3146;
AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE,
PRETRIAL RELEASE 5.2 (1974); UNIFORM RULES OF CRIMINAL PROCEDURE, RULE
341 (PROPOSED FINAL DRAFT 1974).  WE CANNOT DEFINE SPECIFICALLY THOSE
THAT WOULD REQUIRE A PRIOR PROBABLE CAUSE DETERMINATION, BUT THE KEY
FACTOR IS SIGNIFICANT RESTRAINT ON LIBERTY. 

/27/ IN HIS CONCERNING OPINION, MR. JUSTICE STEWART OBJECTS TO THE
COURT'S CHOICE OF THE FOURTH AMENDMENT AS THE RATIONALE FOR DECISION
AND SUGGESTS THAT THE COURT OFFERS LESS PROCEDURAL PROTECTION TO A
PERSON IN JAIL THAN IT REQUIRES IN CERTAIN CIVIL CASES.  HERE WE DEAL
WITH THE COMPLEX PROCEDURES OF A CRIMINAL CASE AND A THRESHOLD RIGHT
GUARANTEED BY THE FOURTH AMENDMENT.  THE HISTORICAL BASIS OF THE
PROBABLE CAUSE REQUIREMENT IS QUITE DIFFERENT FROM THE RELATIVELY
RECENT APPLICATION OF VARIABLE PROCEDURAL DUE PROCESS IN DEBTOR
CREDITOR DISPUTES AND TERMINATION OF GOVERNMENT-CREATED BENEFITS.  THE
FOURTH AMENDMENT WAS TAILORED EXPLICITY FOR THE CRIMINAL JU;TICE
SYSTEM, AND ITS BALANCE BETWEEN INDIVIDUAL AND PUBLIC INTERESTS ALWAYS
HAS BEEN THOUGHT TO DEFINE THE "PROCESS THAT IS DUE" FOR SEIZURES OF
PERSON OR PROPERTY IN CRIMINAL CASES, INCLUDING THE DETENTION OF
SUSPECTS PENDING TRIAL.  PART II - A, SUPRA.  MOREOVER, THE FOURTH
AMENDMENT PROBABLE CAUSE DETERMINATION IS IN FACT ONLY THE FIRST STAGE
OF AN ELABORATE SYSTEM, UNIQUE IN JURISPRUDENCE, DESIGNED TO SAFEGUARD
THE RIGHTS OF THOSE ACCUSED OF CRIMINAL CONDUCT.  THE RELATIVELY SIMPLE
CIVIL PROCEDURES (E.G., PRIOR INTERVIEW WITH SCHOOL PRINCIPAL BEFORE
SUSPENSION) PRESENTED IN THE CASES CITED IN THE CONCURRING OPINION ARE
INAPPOSITE AND IRRELEVANT IN THE WHOLLY DIFFERENT CONTEXT OF THE
CRIMINAL JUSTICE SYSTEM. 

IT WOULD NOT BE PRACTICABLE TO FOLLOW THE FURTHER SUGGESTION
IMPLICIT IN MR. JUSTICE STEWART'S CONCURRING OPINION THAT WE LEAVE FOR
ANOTHER DAY DETERMINATION OF THE PROCEDURAL SAFEGUARDS THAT ARE
REQUIRED IN MAKING A PROBABLE CAUSE DETERMINATION UNDER THE FOURTH
AMENDMENT.  THE JUDGMENT UNDER REVIEW BOTH DECLARES THE RIGHT NOT TO BE
DETAINED WITHOUT A PROBABLE CAUSE DETERMINATION AND AFFIRMS THE
DISTRICT COURT'S ORDER PRESCRIBING AN ADVERSARY HEARING FOR THE
IMPLEMENTATION OF THAT RIGHT.  THE CIRCUMSTANCES OF THE CASE THUS
REQUIRE A DECISION ON BOTH ISSUES. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, CONCURRING. 

I CONCUR IN PARTS I AND II OF THE COURT'S OPINION, SINCE THE
CONSTITUTION CLEARLY REQUIRES AT LEAST A TIMELY JUDICIAL DETERMINATION
OF PROBABLE CAUSE AS A PREREQUISITE TO PRETRIAL DETENTION.  BECAUSE
FLORIDA DOES NOT PROVIDE ALL DEFENDANTS IN CUSTODY PENDING TRIAL WITH A
FAIR AND RELIABLE DETERMINATION OF PROBABLE CAUSE FOR THEIR DETENTION,
THE RESPONDENTS AND THE MEMBERS OF THE CLASS THEY REPRESENT ARE
ENTITLED TO DECLARATORY AND INJUNCTIVE RELIEF. 

HAVING DETERMINED THAT FLORIDA'S CURRENT PRETRIAL DETENTION
PROCEDURES ARE CONSTITUTIONALLY INADEQUATE, I THINK IT IS UNNECESSARY
TO GO FURTHER BY WAY OF DICTA.  IN PARTICULAR, I WOULD NOT, IN THE
ABSTRACT, ATTEMPT TO SPECIFY THOSE PROCEDURAL PROTECTIONS THAT
CONSTITUTIONALLY NEED NOT BE ACCORDED INCARCERATED SUSPECTS AWAITING
TRIAL. 

SPECIFICALLY, I SEE NO NEED IN THIS CASE FOR THE COURT TO SAY THAT
THE CONSTITUTION EXTENDS LESS PROCEDURAL PROTECTION TO AN IMPRISONED
HUMAN BEING THAN IS REQUIRED TO TEST THE PROPRIETY OF GARNISHING A
COMMERCIAL BANK ACCOUNT, NORTH GEORGIA FINISHING, INC. V. DI-CHEM,
INC., 419 U.S. 601; THE CUSTODY OF A REFRIGERATOR, MITCHELL V. W. T.
GRANT CO., 416 U.S. 600; THE TEMPORARY SUSPENSION OF A PUBLIC SCHOOL
STUDENT, GOSS V. LOPEZ, 419 U.S. 565; OR THE SUSPENSION OF A DRIVER'S
LICENSE, BELL V. BURSON, 402 U.S. 535.  ALTHOUGH IT MAY BE TRUE THAT
THE FOURTH AMENDMENT'S "BALANCE BETWEEN INDIVIDUAL AND PUBLIC INTERESTS
ALWAYS HAS BEEN THOUGHT TO DEFINE THE 'PROCESS THAT IS DUE'  FOR
SEIZURES OF PERSON OR PROPERTY IN CRIMINAL CASES," ANTE, AT 125 N. 27,
THIS CASE DOES NOT INVOLVE AN INITIAL ARREST, BUT RATHER THE CONTINUING
INCARCERATION OF A PRESUMPTIVELY INNOCENT PERSON.  ACCORDINGLY, I
CANNOT JOIN THE COURT'S EFFORT TO FORECLOSE ANY CLAIM THAT THE
TRADITIONAL REQUIREMENTS OF CONSTITUTIONAL DUE PROCESS ARE APPLICABLE
IN THE CONTEXT OF PRETRIAL DETENTION. 

IT IS THE PREROGATIVE OF EACH STATE IN THE FIRST INSTANCE TO DEVELOP
PRETRIAL PROCEDURES THAT PROVIDE DEFENDANTS IN PRETRIAL CUSTODY WITH
THE FAIR AND RELIABLE DETERMINATION OF PROBABLE CAUSE FOR DETENTION
REQUIRED BY THE CONSTITUTION.  CF. MORRISSEY V. BREWER, 408 U.S. 471,
488.  THE CONSTITUTIONALITY OF ANY PARTICULAR METHOD FOR DETERMINATING
PROBABLE CAUSE CAN BE PROPERLY DECIDED ONLY BY EVALUATING A STATE'S
PRETRIAL PROCEDURES AS A WHOLE, NOT BY ISOLATING A PARTICULAR PART OF
ITS TOTAL SYSTEM.  AS THE COURT RECOGNIZES, GREAT DIVERSITY EXISTS
AMONG THE PROCEDURES EMPLOYED BY THE STATES IN THIS ASPECT OF THEIR
CRIMINAL JUSTICE SYSTEM.  ANTE, AT 123 - 124. 

THERE WILL BE ADEQUATE OPPORTUNITY TO EVALUATE IN AN APPROPRIATE
FUTURE CASE THE CONSTITUTIONALITY OF ANY NEW PROCEDURES THAT MAY BE
ADOPTED BY FLORIDA IN RESPONSE TO THE COURT'S JUDGMENT TODAY HOLDING
THAT FLORIDA'S PRESENT PROCEDURES ARE CONSTITUTIONALLY INADEQUATE. 

LEONARD R. MELLON REARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WAS N. JOSEPH DURANT, JR. 

BRUCE S. ROGOW REARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEFS WAS PHILLIP A. HUBBART. 

PAUL L. FRIEDMAN REARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
BORK, ASSISTANT ATTORNEY GENERAL PETERSEN, AND DEPUTY SOLICITOR GENERAL
FREY.  RAYMOND L. MARKY, ASSISTANT ATTORNEY GENERAL, REARGUED THE CAUSE
FOR THE STATE OF FLORIDA AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON
THE BRIEF WERE ROBERT L. SHEVIN, ATTORNEY GENERAL, AND GEORGE R.
GEORGIEFF, ASSISTANT ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY ARTHUR K.
BOLTON, ATTORNEY GENERAL, ROBERT S. STUBBS II, EXECUTIVE ASSISTANT
ATTORNEY GENERAL, RICHARD L. CHAMBERS, ASSISTANT ATTORNEY GENERAL, AND
JOHN W. DUNSMORE, JR., DEPUTY ASSISTANT ATTORNEY GENERAL, FOR THE STATE
OF GEORGIA; BY WILLIAM J. GUSTE, JR., ATTORNEY GENERAL, AND WALTER L.
SMITH, JR., ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF LOUISIANA; BY
ROBERT H. QUINN, ATTORNEY GENERAL, JOHN J. IRWIN, JR., DAVID A. MILLS,
AND BARBARA A. H. SMITH, ASSISTANT ATTORNEYS GENERAL, AND MICHAEL C.
DONAHUE, DEPUTY ASSISTANT ATTORNEY GENERAL, FOR THE COMMONWEALTH OF
MASSACHUSETTS; BY JOHN L. HILL, ATTORNEY GENERAL, LARRY F. YORK, FIRST
ASSISTANT ATTORNEY GENERAL, JOE B. DIBRELL AND MAX P. FLUSCHE, JR.,
ASSISTANT ATTORNEYS GENERAL, AND LARRY GIST FOR THE STATE OF TEXAS; BY
VERNON B. ROMNEY, ATTORNEY GENERAL, AND M. REID RUSSELL, CHIEF
ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF UTAH; AND BY SLADE GORTON,
ATTORNEY GENERAL, MALACHY R. MURPHY, DEPUTY ATTORNEY GENERAL, AND KEVIN
M. RYAN, ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF WASHINGTON. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY DANIEL S.
PEARSON AND LOUIS M. JEPEWAY, JR., FOR THE DADE COUNTY BAR ASSN., AND
BY MALVINE NATHANSON FOR THE NATIONAL LEGAL AID AND DEFENDER ASSN. 

BRIEFS OF AMICI CURIAE WERE FILED BY EVELL J. YOUNGER, ATTORNEY
GENERAL, JACK R. WINKLER, CHIEF ASSISTANT ATTORNEY GENERAL, DORIS H.
MAIER, ASSISTANT ATTORNEY GENERAL, AND JOSEPH P. BUSCH FOR THE
APPELLATE COMMITTEE OF THE CALIFORNIA DISTRICT ATTORNEYS ASSN. ET AL.;
BY WILLIAM F. HYLAND, ATTORNEY GENERAL, AND HOWARD E. DRUCKS, DEPUTY
ATTORNEY GENERAL, FOR THE STATE OF NEW JERSEY; AND BY KIMBERLY B.
CHENEY, ATTORNEY GENERAL, AND ALAN W. COOK, ASSISTANT ATTORNEY GENERAL,
FOR THE STATE OF VERMONT. 
..END :








INDIANAPOLIS SCHOOL COMMISSIONERS V. JACOBS, 420 U.S. 128 


       BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS ET

           AL. V. JACOBS ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

    SEVENTH CIRCUIT

        NO. 73 - 1347.  ARGUED DECEMBER 11, 1974--DECIDED FEBRUARY

           18, 1975; 490 F.2D 601, VACATED AND REMANDED. 


    A PURPORTED CLASS ACTION BY SIX NAMED PLAINTIFFS, WHO AT THE

  TIME WERE HIGH SCHOOL STUDENTS, CHALLENGING THE CONSTITUTIONALITY

  OF CERTAIN SCHOOL RULES AND REGULATIONS, IS MOOT, WHERE ALL SIX

  HAVE GRADUATED FROM SCHOOL AND THE DISTRICT COURT NEITHER

  PROPERLY CERTIFIED THE CLASS ACTION UNDER FED. RULE CIV. PROC.

  23(C)(1) NOR PROPERLY IDENTIFIED THE CLASS UNDER RULE 23(C)(3). 

PER CURIAM. 

THIS ACTION WAS BROUGHT IN THE DISTRICT COURT BY SIX NAMED
PLAINTIFFS SEEKING TO HAVE DECLARED UNCONSTITUTIONAL CERTAIN
REGULATIONS AND RULES PROMULGATED BY THE PETITIONER BOARD AND TO HAVE
THE ENFORCEMENT OF THOSE REGULATIONS AND RULES ENJOINED, AS WELL AS
SEEKING OTHER RELIEF NO LONGER RELEVANT TO THIS CASE.  /1/ IN THE
COMPLAINT, THE NAMED PLAINTIFFS STATED THAT THE ACTION WAS BROUGHT AS A
CLASS ACTION PURSUANT TO FED. RULES CIV. PROC. 23(A) AND (B)(2), AND
FURTHER STATED THAT "(PLAINTIFF CLASS MEMBERS ARE ALL HIGH SCHOOL
STUDENTS ATTENDING SCHOOLS MANAGED, CONTROLLED, AND MAINTAINED BY THE
BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS."  AT THE
TIME THIS ACTION WAS BROUGHT, PLAINTIFFS WERE OR HAD BEEN INVOLVED IN
THE PUBLICATION AND DISTRIBUTION OF A STUDENT NEWSPAPER, AND THEY
ALLEGED THAT CERTAIN ACTIONS TAKEN BY PETITIONER BOARD OR ITS
SUBORDINATES, AS WELL AS CERTAIN OF ITS RULES AND REGULATIONS,
INTERFERED OR THREATENED TO INTERFERE WITH THE PUBLICATION AND
DISTRIBUTION OF THE NEWSPAPER IN VIOLATION OF THEIR FIRST AND
FOURTEENTH AMENDMENT RIGHTS.  THE PLAINTIFFS (RESPONDENTS HERE)
PREVAILED ON THE MERITS OF THEIR ACTION IN THE DISTRICT COURT, 349
F.SUPP.  605 (SD IND. 1972), AND THE COURT OF APPEALS, ONE JUDGE
DISSENTING IN PART, AFFIRMED, 490 F.2D 601 (CA7 1973).  PETITIONERS
BROUGHT THE CASE TO THIS COURT, AND WE GRANTED CERTIORARI, 417 U.S. 929
(1974).  AT ORAL ARGUMENT, WE WERE INFORMED BY COUNSEL FOR PETITIONERS
THAT ALL OF THE NAMED PLAINTIFFS IN THE ACTION HAD GRADUATED FROM THE
INDIANAPOLIS SCHOOL SYSTEM; IN THESE CIRCUMSTANCES, IT SEEMS CLEAR THAT
A CASE OR CONTROVERSY NO LONGER EXISTS BETWEEN THE NAMED PLAINTIFFS AND
THE PETITIONERS WITH RESPECT TO THE VALIDITY OF THE RULES AT ISSUE. 
THE CASE IS THEREFORE MOOT UNLESS IT WAS DULY CERTIFIED AS A CLASS
ACTION PURSUANT TO FED. RULE CIV. PROC. 23, A CONTROVERSY STILL EXISTS
BETWEEN PETITIONERS AND THE PRESENT MEMBERS OF THE CLASS, AND THE ISSUE
IN CONTROVERSY IS SUCH THAT IT IS CAPABLE OF REPETITION YET EVADING
REVIEW.  SOSNA V. IOWA, 419 U.S. 393 (1975).  BECAUSE IN OUR VIEW THERE
WAS INADEQUATE COMPLIANCE WITH THE REQUIREMENTS OF RULE 23(C), WE HAVE
CONCLUDED THAT THE CASE HAS BECOME MOOT. 

THE ONLY FORMAL ENTRY MADE BY THE DISTRICT COURT BELOW PURPORTING TO
CERTIFY THIS CASE AS A CLASS ACTION IS CONTAINED IN THAT COURT'S "ENTRY
ON MOTION FOR PERMANENT INJUNCTION," WHEREIN THE COURT "CONCLUDED) AND
ORDERED" THAT "THE REMAINING NAMED PLAINTIFFS ARE QUALIFIED AS PROPER
REPRESENTATIVES OF THE CLASS WHOSE INTEREST THEY SEEK TO PROTECT."  349
F.SUPP.,AT 611.  NO OTHER EFFORT WAS MADE TO IDENTIFY THE CLASS OR TO
CERTIFY THE CLASS ACTION AS CONTEMPLATED BY RULE 23(C)(1); NOR DOES THE
QUOTED LANGUAGE COMPLY WITH THE REQUIREMENT OF RULE 23(C)(3) THAT "(THE
JUDGMENT IN AN ACTION MAINTAINED AS A CLASS ACTION UNDER SUBDIVISION .
. . (B)(2) . . . SHALL INCLUDE AND DESCRIBE THOSE WHOM THE COURT FINDS
TO BE MEMBERS OF THE CLASS."  THE NEED FOR DEFINITION OF THE CLASS
PURPORTED TO BE REPRESENTED BY THE NAMED PLAINTIFFS IS ESPECIALLY
IMPORTANT IN CASES LIKE THIS ONE WHERE THE LITIGATION IS LIKELY TO
BECOME MOOT AS TO THE INITIALLY NAMED PLAINTIFFS PRIOR TO THE
EXHAUSTION OF APPELLATE REVIEW.  BECAUSE THE CLASS ACTION WAS NEVER
PROPERLY CERTIFIED NOR THE CLASS PROPERLY IDENTIFIED BY THE DISTRICT
COURT, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS
REMANDED TO THAT COURT WITH INSTRUCTIONS TO ORDER THE DISTRICT COURT TO
VACATE ITS JUDGMENT AND TO DISMISS THE COMPLAINT. 

                                  SO ORDERED. 

/1/ THE NAMED PLAINTIFFS SOUGHT EXPUNCTION FROM THEIR RESPECTIVE
RECORDS OF CERTAIN INFORMATION AND COMPENSATORY AND PUNITIVE DAMAGES
AGAINST PETITIONERS.  THESE PRAYERS FOR RELIEF WERE DENIED BY THE
DISTRICT COURT FOR FAILURE OF PROOF AND NO APPEAL WAS TAKEN FROM THIS
DECISION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IN SOSNA V. IOWA, 419 U.S. 393 (1975), WE FOUND NO MOOTNESS PROBLEM
WHERE A NAMED PLAINTIFF BELATEDLY SATISFIED THE DURATIONAL RESIDENCY
REQUIREMENT WHICH SHE HAD INITIALLY SOUGHT TO ATTACK.  OUR HOLDING TO
THAT EFFECT WAS BASED UPON THREE FACTORS WHICH WE FOUND PRESENT IN THAT
CASE:  (1) A CERTIFICATION OF THE SUIT AS A CLASS ACTION; (2) A
CONTINUING INJURY SUFFERED BY OTHER MEMBERS OF THE CLASS; AND (3) A
TIME FACTOR WHICH MADE IT HIGHLY PROBABLE THAT ANY SINGLE INDIVIDUAL
WOULD FIND HIS CLAIM INEVITABLY MOOTED BEFORE THE FULL COURSE OF
LITIGATION HAD BEEN RUN.  APPLYING THOSE PRINICPLES TO THE PRESENT
CASE, I WOULD HOLD THAT AN ART. III CONTROVERSY EXISTS AND THAT THE
PARTIES ARE THEREFORE ENTITLED TO A RULING ON THE MERITS. 

THIS SUIT WAS INSTITUTED AS A CLASS ACTION ON BEHALF OF ALL HIGH
SCHOOL STUDENTS 

ATTENDING INDIANAPOLIS PUBLIC SCHOOLS.  THE RECORD DOES NOT CONTAIN
ANY WRITTEN ORDER 

FORMALLY CERTIFYING THE CLASS, BUT THE ABSENCE OF SUCH A WRITTEN
ORDER IS TOO SLENDER A REED TO SUPPORT A HOLDING OF MOOTNESS,
PARTICULARLY IN THE FACE OF THE INCONTROVERTIBLE EVIDENCE THAT
CERTIFICATION WAS INTENDED AND DID, IN FACT, TAKE PLACE.  AT THE CLOSE
OF THE SECOND DAY OF THE PROCEEDINGS ON PLAINTIFFS' APPLICATION FOR A
TEMPORARY RESTRAINING ORDER, THE DISTRICT JUDGE STATED:  "I WILL MAKE A
FINDING THAT THIS IS AN APPROPRIATE ACTION, OR A CLASS ACTION IS
APPROPRIATE INSOFAR AS THIS CONTROVERSY IS CONCERNED."  /1/ LATER, IN
HIS WRITTEN OPINION, HE STATED THAT THE TWO NAMED PLAINTIFFS WHO HAD
NOT GRADUATED BY THE TIME OF THESE PROCEEDINGS WERE "QUALIFIED AS
PROPER REPRESENTATIVES OF THE CLASS WHOSE INTEREST THEY SEEK TO
PROTECT."  /2/ 349 F.SUPP.  605, 611.  AT ORAL ARGUMENT, MOREOVER,
COUNSEL FOR THE BOARD OF SCHOOL COMMISSIONERS STATED, IN RESPONSE TO A
QUESTION FROM US, THAT THERE HAD BEEN A DECLARATION OF CERTIFICATION OF
CLASS ACTION.  /3/ THE FINDINGS OF THE LOWER COURT, COUPLED WITH THE
REPRESENTATIONS OF COUNSEL FOR THE PETITIONERS, PROVIDE, IN MY VIEW, A
MORE THEN AMPLE BASIS FOR FOR HOLDING THAT THE FIRST SOSNA CRITERION
HAS BEEN MET.  /4/ 

THE COURT TODAY, HOWEVER, PURPORTS TO FIND THIS CASE DISTINGUISHABLE
FROM SOSNA IN TERMS OF THE ADEQUACY OF COMPLIANCE BELOW WITH THE
REQUIREMENTS OF FED. RULE CIV. PROC. 23(C).  A REVIEW OF THE RECORD IN
SOSNA DISCLOSES THAT THE JUDGMENT ENTERED BY THE DISTRICT COURT IN THAT
CASE DOES NOT IN ANY WAY "INCLUDE AND DESCRIBE THOSE WHOM THE COURT
FINDS TO BE MEMBERS OF THE CLASS," AS REQUIRED BY RULE 23(C)(3); NOR IS
THERE ANYTHING IN THE RECORD IDENTIFIABLE AS A SEPARATE CERTIFICATION
OF THE CLASS IN THE SENSE WHICH THE COURT FINDS TO BE CONTEMPLATED BY
RULE 23(C)(1).  THE DISTRICT COURT IN SOSNA, IN ITS PRETRIAL ORDER,
ADOPTED A STIPULATION OF THE PARTIES TO THE EFFECT THAT THE
PREREQUISITES FOR A CLASS ACTION WERE MET, AND THAT THERE WERE NUMEROUS
PERSONS BARRED BY IOWA'S RESIDENCY REQUIREMENT FROM HAVING THEIR
MARRIAGES DISSOLVED; AND IN ITS FINAL OPINION, THE DISTRICT COURT
INCORPORATED A BARE REFERENCE TO THE FACT THAT THE SUIT WAS BEING
TREATED AS A CLASS ACTION.  SOSNA V. IOWA, 360 F.SUPP.  1182, 1183 N. 5
(1973).  IF THESE TWO FACTORS ALONE WERE SUFFICIENT TO ESTABLISH PROPER
CERTIFICATION OF THE CLASS IN SOSNA, THEN I AM AT A LOSS TO SEE WHY THE
FACTORS CATALOGUED EARLIER ARE NOT SUFFICIENT TO ESTABLISH PROPER
CERTIFICATION IN THE INSTANT CASE. 

IT IS UNDOUBTEDLY TRUE THAT MANY FEDERAL DISTRICT JUDGES HAVE BEEN
CARELESS IN THEIR DEALINGS WITH CLASS ACTIONS, AND HAVE FAILED TO
COMPLY CAREFULLY WITH THE TECHNICAL REQUIREMENTS OF RULE 23.  IF WE ARE
TO EMBARK UPON A PROGRAM OF SCRUPULOUS ENFORCEMENT OF COMPLIANCE WITH
THOSE REQUIREMENTS, SO BE IT; THE END RESULT MAY WELL BE TO AVOID
TROUBLESOME MOOTNESS PROBLEMS OF THE SORT WHICH AROSE BOTH HERE AND IN
SOSNA.  ELEMENTARY PRINCIPLES OF FAIRNESS TO LITIGANTS SUGGEST,
HOWEVER, THAT WE SHOULD BE RELUCTANT TO THROW THESE RESPONDENTS
ENTIRELY OUT OF COURT FOR THEIR FAILURE TO INDUCE THE DISTRICT COURT TO
COMPLY WITH TECHNICAL REQUIREMENTS, WHEN THOSE REQUIREMENTS CLEARLY
WERE NOT BEING STRICTLY ENFORCED DURING THE PENDENCY OF THIS LITIGATION
IN THE LOWER COURTS.  AND IN PARTICULAR, THESE PRINCIPLES OF FAIRNESS
SUGGEST THAT THE COURT OUGHT TO PROVIDE A MORE REASONED EXPLANATION
THAN IT HAS GIVEN TODAY FOR THE DIFFERENCE IN TREATMENT WHICH IT HAS
ACCORDED TO THE APPELLANTS IN SOSNA AND TO THE RESPONDENTS HEREIN. 

WITH RESPECT TO THE SECOND SOSNA CRITERION, IT IS CLEAR THAT THE
BOARD INTENDS TO ENFORCE THE REGULATION STRUCK DOWN BY THE COURTS BELOW
UNLESS IT IS FLATLY BARRED FROM DOING SO.  A CONTINUING DISPUTE
THEREFORE EXISTS BETWEEN THE BOARD AND THE MEMBERS OF THE CLASS, UNLESS
IT CAN BE SAID WITH SOME ASSURANCE THAT THERE ARE NO CLASS MEMBERS WHO
DESIRE EITHER TO RESURRECT THE "CORN COB CURTAIN" OR TO DISTRIBUTE SOME
COMPARABLE "UNDERGROUND" PUBLICATION.  THE MERE STATEMENT BY COUNSEL
FOR THE BOARD THAT THE CORN COB CURTAIN "IS NO LONGER IN EXISTENCE" /5/
CAN HARDLY BE DEEMED TO PROVIDE THAT ASSURANCE; TO THE CONTRARY, THE
BOARD'S VERY INSISTENCE ON THE NEED FOR ENFORCEABLE REGULATIONS
REINFORCES THE LIKELIHOOD THAT THE DESIRE FOR UNFETTERED EXPRESSION
WILL CONTINUE TO BREED CLASHES BETWEEN INDIANAPOLIS HIGH SCHOOL
STUDENTS AND THE BOARD'S PROPOSED REGULATIONS.  THE INFERENCE OF A
CONTINUING CONTROVERSY IS, IN MY VIEW, JUST AS STRONG AS THAT WHICH WE
FOUND SUFFICIENT IN SOSNA. 

THE COURT'S READINESS TO FIND THIS CONTROVERSY MOOT IS PARTICULARLY
DISTRESSING IN LIGHT OF THE ISSUES AT STADE.  TRUE, THERE IS NO
ABSOLUTE TIME FACTOR (SUCH AS THAT IN SOSNA) WHICH WILL INEVITABLY MOOT
ANY FUTURE LITIGATION OVER THESE REGULATIONS BEFORE IT REACHES A
CONCLUSION; IT IS CONCEIVABLE THAT ANOTHER PLAINTIFF IN A SUBSEQUENT
SUIT WILL BE ABLE TO AVOID THE TRAP OF MOOTNESS WHICH THE COURT HAS
SPRUNG UPON THESE UNWITTING PARTIES.  IN REMITTING THE UNDERLYING
ISSUES OF THIS CASE TO THE COURSE OF SOME FUTURE, MORE EXPEDITIOUS
LAWSUIT, HOWEVER, WE PERMIT THE BOARD TO CONTINUE ITS ENFORCEMENT, FOR
AN INDEFINITE PERIOD OF TIME, OF REGULATIONS WHICH HAVE BEEN HELD
FACIALLY UNCONSTITUTIONAL BY BOTH OF THE COURTS BELOW.  IN ALLOWING THE
BOARD TO REIMPOSE ITS SYSTEM OF PRIOR RESTRAINTS ON STUDENT
PUBLICATIONS, WE RAISE A VERY SERIOUS PROSPECT OF THE PRECISE SORT OF
CHILLING EFFECT WHICH HAS LONG BEEN A CENTRAL CONCERN IN OUR FIRST
AMENDMENT DECISIONS.  NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713
(1971); ORGANIZATION FOR A BETTER AUSTIN V. KEEFE, 402 U.S. 415 (1971);
BLOUNT V. RIZZI, 400 U.S. 410 (1971); FREEDMAN V. MARYLAND, 380 U.S. 51
(1965); NEAR V. MINNESOTA, 283 U.S. 697 (1931).  ANY STUDENT WHO
DESIRES TO EXPRESS HIS VIEWS IN A MANNER WHICH MAY BE OFFENSIVE TO
SCHOOL AUTHORITIES IS NOW PUT ON NOTICE THAT HE FACES NOT ONLY A THREAT
OF IMMEDIATE SUPPRESSION OF HIS IDEAS, BUT ALSO THE PROSPECT OF A LONG
AND ARDUOUS COURT BATTLE IF HE IS TO VINDICATE HIS RIGHTS OF FREE
EXPRESSION.  NOT THE LEAST INHIBITING OF ALL THESE FACTORS WILL BE THE
KNOWLEDGE THAT ALL HIS EFFORTS MAY COME TO NAUGHT AS HIS CLAIMS ARE
MOOTED BY CIRCUMSTANCES BEYOND HIS CONTROL. 

IN VIEW OF THESE LIKELY CONSEQUENCES OF TODAY'S DECISION, I AM
UNABLE TO JOIN IN THE COURT'S RUSH TO AVOID RESOLVING THIS CASE ON THE
MERITS. 

/1/ TR., AUG. 25, 1972, P. 368.  THIS STATEMENT WAS MADE IMMEDIATELY
AFTER A DISCUSSION OF WHETHER THE FOUR PLAINTIFFS WHO HAD PREVIOUSLY
GRADUATED COULD BE "PROPER REPRESENTATIVES OF A CLASS,"  IBID.; WHILE
TENTATIVELY HOLDING THAT THEY COULD NOT, THE DISTRICT JUDGE PERMITTED
THE ACTION TO CONTINUE IN THE NAMES OF THE TWO PLAINTIFFS WHO HAD NOT
YET GRADUATED.  IBED,; 349 F.SUPP.  605, 611. 

/2/ RESPONDENTS' COMPLAINT ALLEGED THAT THE PLAINTIFF CLASS MEMBERS
WERE "ALL HIGH SCHOOL STUDENTS ATTENDING SCHOOLS MANAGED, CONTROLLED,
AND MAINTAINED BY THE BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF
INDIANAPOLIS."  WHILE THERE HAD BEEN A SUGGESTION IN THE TRIAL COURT
THAT THE CLASS MIGHT BE BROADENED TO INCLUDE ALL INDIANAPOLIS PUBLIC
SCHOOL STUDENTS, IT WAS CONCEDED IN THE COURT OF APPEALS THAT THE CASE
WAS CONCERNED ONLY WITH THE APPLICATION OF PETITIONERS' RULES IN HIGH
SCHOOLS.  490 F.2D 601, 610.  THIS CONCESSION IS CONSISTENT WITH THE
SCOPE OF THE CLASS AS DEFINED IN THE COMPLAINT, AND WITH THE DISTRICT
COURT'S OBVIOUS INTENT IN FINDING THE NAMED PLAINTIFFS TO BE "PROPER
REPRESENTATIVES OF THE CLASS WHOSE INTEREST THEY SEEK TO PROTECT"
(EMPHASIS ADDED).  I SEE NO SERIOUS PROBLEM, THEREFORE, IN DEFINING THE
PROPER AND INTENDED SCOPE OF THE CLASS AS APPROVED BY THE TRIAL COURT. 

/3/ TR. OF ORAL ARG. 11. 

/4/ THE COURT OF APPEALS ADVERTED AT ONE POINT IN ITS OPINION TO THE
ISSUE OF WHETHER "PLAINTIFFS OR CLASS MEMBERS" WOULD BE BOUND BY THE
JUDGMENT, 490 F.2D,AT 603, A REFERENCE WHICH MIGHT BE TAKEN TO SUGGEST
THAT THAT COURT AS WELL HARBORED NO DOUBTS AS TO WHETHER THE SUIT WAS
IN FACT PROCEEDING AS A CLASS ACTION. 

/5/ TR. OF ORAL ARG. 4, 5. 

LILA J. YOUNG ARGUED THE CAUSE FOR PETITIONERS.  WITH HER ON THE
BRIEFS WERE HAROLD H. BREDELL AND LAWRENCE MCTURNAN. 

CRAIG ELDON PINKUS ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS RONALD E. ELBERGER. 
..END :























TRAIN V. CAMPAIGN CLEAN WATER, 420 U.S. 136 


       TRAIN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY V.

           CAMPAIGN CLEAN WATER, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

      FOURTH CIRCUIT

        NO. 73 - 1378.  ARGUED NOVEMBER 12, 1974--DECIDED FEBRUARY

           18, 1975; 489 F.2D 492, VACATED AND REMANDED. 


    IN RESPONDENT'S ACTION TO COMPEL PETITIONER ADMINISTRATOR OF

  THE ENVIRONMENTAL PROTECTION AGENCY TO ALLOT AMONG THE STATES THE

  FULL SUMS AUTHORIZED TO BE APPROPRIATED FOR FISCAL YEARS 1973 AND

  1974 BY 207 OF THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS

  OF 1972 FOR MUNICIPAL WASTE TREATMENT PLANTS, THE DISTRICT COURT

  HELD THAT THE ADMINISTRATOR HAD ABUSED HIS DISCRETION BY

  ALLOTTING ONLY 45% OF THE AUTHORIZED SUMS.  THE COURT OF APPEALS,

ON THE PREMISE THAT THERE WAS DISCRETION TO CONTROL OR DELAY

  ALLOTMENTS, CONCLUDED THAT FURTHER PROCEEDINGS WERE ESSENTIAL TO

  DETERMINE WHETHER THAT DISCRETION HAD BEEN ABUSED.  HELD:  SINCE

  THE HOLDING IN TRAIN V. CITY OF NEW YORK, ANTE, P. 35, THAT THE

  ADMINISTRATOR HAS NO AUTHORITY TO ALLOT LESS THAN THE FULL

  AMOUNTS AUTHORIZED TO BE APPROPRIATED UNDER 207, IS AT ODDS WITH

  THE COURT OF APPEALS' PREMISE, THAT COURT'S JUDGMENT IS VACATED

  AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH

  TRAIN V. CITY OF NEW YORK. 

PER CURIAM. 

ON JANUARY 15, 1973, RESPONDENT FILED A COMPLAINT IN THE DISTRICT
COURT SEEKING TO COMPEL THE PETITIONER, AS ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, TO ALLOT AMONG THE STATES THE FULL
SUMS AUTHORIZED TO BE APPROPRIATED FOR FISCAL YEARS 1973 AND 1974 BY
207 OF THE FEDERAL WATER POLLUTION CONTROL ACT, AS ADDED BY THE
AMENDMENTS OF 1972, 86 STAT. 839, 33 U.S.C. 1287 (1970 ED.,SUPP.  II),
FOR FEDERAL GRANTS TO MUNICIPALITIES FOR CONSTRUCTION OF PUBLICLY OWNED
WASTE TREATMENTS WORKS.  ALTHOUGH CONCEDING IN THE TRIAL COURT THAT THE
ADMINISTRATOR HAD A MEASURE OF DISCRETION IN MAKING THE ALLOTMENTS
AUTHORIZED BY 205 OF THE ACT, 86 STAT. 837, 33 U.S.C. 1285 (1970 ED.,
SUPP. II), RESPONDENT ASSERTED THAT THE ADMINISTRATOR HAD ABUSED HIS
DISCRETION BY ALLOTTING ONLY 45% OF THE SUMS AUTHORIZED TO BE
APPROPRIATED BY 207.  IN SUSTAINING RESPONDENT'S POSITION, THE DISTRICT
COURT REJECTED THE HOLDING BY THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA IN CITY OF NEW YORK V. RUCKELSHAUS, 358 F.SUPP. 
669 (1973), THAT THE ADMINISTRATOR HAS NO DISCRETION TO ALLOT LESS THAN
THE FULL AMOUNTS AUTHORIZED BY THE ACT.  THE COURT OF APPEALS PROCEEDED
ON THE PREMISE THAT THERE WAS DISCRETION TO CONTROL OR DELAY ALLOTMENTS
BUT CONCLUDED DISCRETION TO CONTROL OR DELAY ALLOTMENTS BUT CONCLUDED
THAT FURTHER PROCEEDINGS WERE ESSENTIAL TO DETERMINE WHETHER THE
ADMINISTRATOR'S DISCRETION HAD BEEN ABUSED.  THE ADMINISTRATOR
PETITIONED FOR CERTIORARI, ASSERTING THAT THE EXERCISE OF HIS
DISCRETION TO ALLOT FUNDS UNDER 205 IS NOT SUBJECT TO JUDICIAL REVIEW. 
/1/ WE GRANTED CERTIORARI, 416 U.S. 969 (1974), AND HEARD THE CASE WITH
TRAIN V. CITY OF NEW YORK, ANTE, P. 35. 

WE HELD IN TRAIN V. CITY OF NEW YORK THAT THE ADMINISTRATOR HAS NO
AUTHORITY UNDER 205 TO ALLOT LESS THAN THE FULL AMOUNTS SOUGHT TO BE
APPROPRIATED UNDER 207.  BECAUSE THAT HOLDING IS AT ODDS WITH THE
PREMISE UNDERLYING THE JUDGMENT OF THE COURT OF APPEALS, WE VACATE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION AND WITH THE OPINION IN TRAIN
V. CITY OF NEW YORK. 

                                  SO ORDERED. 

/1/ THE PETITION ALSO ASSERTED THAT THE DOCTRINE OF SOVEREIGN
IMMUNITY FORECLOSED ORDERING THE ADMINISTRATOR TO ALLOT FUNDS THAT HE
HAD WITHHELD IN THE COURSE OF EXERCISING HIS DISCRETION UNDER THE ACT. 
IN LIGHT OF TRAIN V. CITY OF NEW YORK, ANTE, P. 35, AND OUR DISPOSITION
OF THE INSTANT CASE, WE NEED NOT ADDRESS THIS QUESTION. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE ASSISTANT ATTORNEY GENERAL HILLS, DEPUTY SOLICITOR
GENERAL FRIEDMAN, EDMUND W. KITCH, WILLIAM L. PATTON, ROBERT E. KOPP,
ELOISE E. DAVIES, AND DAVID M. COHEN. 

W. THOMAS JACKS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS ALAN B. MORRISON. 

BRIEFS OF AMICI CURIAE WERE FILED BY EVELLE J. YOUNGER, ATTORNEY
GENERAL, PRO SE, ROBERT H. O'BRIEN, SENIOR ASSISTANT ATTORNEY GENERAL,
AND NICHOLAS C. YOST, DEPUTY ATTORNEY GENERAL, FOR THE ATTORNEY GENERAL
OF CALIFORNIA; BY FRANK J. KELLEY, ATTORNEY GENERAL, ROBERT A.
DERENGOSKI, SOLICITOR GENERAL, AND STEWART H. FREEMAN AND CHARLES
ALPERT, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF MICHIGAN; BY
WARREN SPANNAUS, ATTORNEY GENERAL, BYRON E. STARNS, DEPUTY ATTORNEY
GENERAL, PETER W. SIPKINS, SOLICITOR GENERAL, AND ELDON G. KAUL,
SPECIAL ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF MINNESOTA; BY
WILLIAM J. BROWN, ATTORNEY GENERAL, AND RICHARD P. FAHEY, AND DAVID E.
NORTHROP, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF OHIO; BY JOHN
L. HILL, ATTORNEY GENERAL, LARRY F. YORK, FIRST ASSISTANT ATTORNEY
GENERAL, AND PHILIP K. MAXWELL, ASSISTANT ATTORNEY GENERAL OF TEXAS,
ROBERT W. WARREN, ATTORNEY GENERAL, AND THEODORE L. PRIEBE, ASSISTANT
ATTORNEY GENERAL OF WISCONSIN, JOHN C. DANFORTH, ATTORNEY GENERAL, AND
ROBERT M. LINDHOLM, ASSISTANT ATTORNEY GENERAL OF MISSOURI, LARRY
DERRYBERRY, ATTORNEY GENERAL, AND PAUL C. DUNCAN, ASSISTANT ATTORNEY
GENERAL OF OKLAHOMA, AND VERN MILLER, ATTORNEY GENERAL, AND CURT T.
SCHNEIDER, ASSISTANT ATTORNEY GENERAL OF KANSAS, FOR THE STATES OF
TEXAS, WISCONSIN, MISSOURI, OKLAHOMA, AND KANSAS; BY ANDREW P. MILLER,
ATTORNEY GENERAL, GERALD L. BALILES, D UTY ATTORNEY GENERAL, AND JAMES
E. RYAN, JR., ASSISTANT ATTORNEY GENERAL, FOR THE COMMONWEALTH OF
VIRGINIA; BY SLADE GORTON, ATTORNEY GENERAL, CHARLES B. ROE, JR.,
SENIOR ASSISTANT ATTORNEY GENERAL, AND MARTIN J. DURKAN AND JAMES B.
MCCABE, SPECIAL ASSISTANT ATTORNEYS GENERAL OF W SHINGTON, AND ISRAEL
PACKEL, ATTORNEY GENERAL, AND JAMES R. ADAMS, DEPUTY ATTORNEY GENERAL
OF PENNSYLVANIA, FOR THE STATE OF WASHINGTON AND THE COMMONWEALTH OF
PENNSYLVANIA; AND BY FLETCHER N. BALDWIN, JR., FOR THE CENTER FOR
GOVERNMENTAL RESPONSIBILITY. 
..END :









LEE V. THORNTON, 420 U.S. 139 


       LEE ET AL. V. THORNTON, DISTRICT DIRECTOR, UNITED STATES

           CUSTOMS FOR VERMONT, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

   DISTRICT OF VERMONT

        NO. 73 - 7006.  DECIDED FEBRUARY 18, 1975; VACATED AND

           REMANDED. 


    THE DISTRICT COURTS' JURISDICTION UNDER TUCKER ACT OVER "ANY

  CIVIL ACTION OR CLAIM AGAINST THE UNITED STATES . . . FOUNDED

  EITHER UPON THE CONSTITUTION OR ANY ACT OF CONGRESS," DID NOT

  GIVE DISTRICT COURT HERE JURISDICTION OVER APPELLANTS' CLAIMS TO

  ENJOIN ENFORCEMENT OF CERTAIN CHALLENGED PROVISIONS OF THE

  CUSTOMS LAW, SINCE THE TUCKER ACT EMPOWERS A DISTRICT COURT ONLY

  TO AWARD DAMAGES.  THEREFORE, A THREE-JUDGE COURT WAS IMPROPERLY

  CONVENED, AND THIS COURT HAS NO JURISDICTION OVER THE APPEAL

  BASED ON THE DISTRICT COURT'S REFUSAL TO GRANT INJUNCTIVE RELIEF

  FOUNDED ON CERTAIN CONSTITUTIONAL CLAIMS. 

PER CURIAM. 

APPELLANTS BROUGHT ACTIONS IN THE DISTRICT COURT FOR THE DISTRICT OF
VERMONT THAT CHALLENGED THE CONSTITUTIONALITY, FACIALLY AND AS APPLIED,
OF VARIOUS PROVISIONS OF THE CUSTOMS LAWS, 46 STAT. 717 AND 757, AS
AMENDED, 19 U.S.C. 1460 AND 1618, THAT MANDATE PROCEDURES TO EFFECT
FORFEITURE AND REMISSION OR MITIGATION OF PENALTIES IMPOSED AFTER
BORDER PATROL AGENTS APPREHENDED THEM AND SEIZED THEIR VEHICLES WHEN
THEY CROSSED THE BORDER FROM CANADA WITHOUT PASSING THROUGH A CUSTOMS
STATION.  THE COMPLAINTS SOUGHT (1) DECLARATORY JUDGMENTS THAT THE
CHALLENGED PROVISIONS WERE UNCONSTITUTIONAL, (2) INJUNCTIONS AGAINST
THEIR ENFORCEMENT, (3) MANDAMUS RELIEF REQUIREING THE RETURN OF MONEYS
PAID AS MITIGATED FORFEITURES OR PENALTIES BASED ON VIOLATIONS OF THE
CUSTOMS LAWS, AND (4) DAMAGES.  A THREE-JUDGE COURT WAS CONVENED.  THE
COURT HELD THAT IT HAD JURISDICTION UNDER THE TUCKER ACT, 28 U.S.C.
1346(A)(2), REJECTED APPELLANTS' CONSTITUTIONAL CLAIMS, ENJOINED
APPELLEES FROM APPLYING THE CUSTOMS LAWS EXCEPT AS CONSTRUED BY THE
COURT, DECLINED TO REMIT APPELLEES' FINES, AND RETURNED TO THE SINGLE
JUDGE DISTRICT COURT THE QUESTION OF DAMAGES. 

THE DISTRICT COURT HELD THAT IT HAD JURISDICTION OF THE COMPLAINTS
UNDER THE TUCKER ACT, AND DID NOT ADDRESS OTHER ALTERNATIVE BASES OF
JURISDICTION ASSERTED IN THE COMPLAINTS.  THE JURISDICTION OF THE
DISTRICT COURTS UNDER THE TUCKER ACT OVER "(ANY . . . CIVIL ACTION OR
CLAIM AGAINST THE UNITED STATES . . . FOUNDED EITHER UPON THE
CONSTITUTION, OR ANY ACT OF CONGRESS . . ."  DOES NOT INCLUDE
JURISDICTION OVER APPELLANTS' CLAIMS TO ENJOIN ENFORCEMENT OF THE
CHALLENGED PROVISIONS OF THE CUSTOMS LAWS.  THE TUCKER ACT EMPOWERS
DISTRICT COURTS TO AWARD DAMAGES BUT NOT TO GRANT INJUNCTIVE OR
DECLARATORY RELIEF.  RICHARDSON V. MORRIS, 409 U.S. 464 (1973); UNITED
STATES V. KING, 395 U.S. 1 (1969); UNITED STATES V. SHERWOOD, 312 U.S.
584, 589 - 591 (1941).  IT FOLLOWS THAT THE THREE-JUDGE COURT WAS
IMPROPERLY CONVENED, AND THIS COURT THEREFORE HAS NO JURISDICTION TO
ENTERTAIN THE APPEAL BASED ON THE DISTRICT COURT'S REFUSAL TO GRANT
INJUNCTIVE RELIEF FOUNDED ON APPELLANTS' ADDITIONAL CONSTITUTIONAL
CLAIMS.  APPELLANTS' MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED, THE JUDGMENT OF THE DISTRICT COURT IS VACATED, AND THE CASE IS
REMANDED FOR CONSIDERATION OF APPELLANTS' OTHER ASSERTED BASES OF
JURISDICTION. 

                                  SO ORDERED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :
















CHAPMAN V. MEIER, 420 U.S. 1 


       CHAPMAN ET AL. V. MEIER, SECRETARY OF STATE OF NORTH DAKOTA

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NORTH DAKOTA

NO. 73 - 1406.  ARGUED NOVEMBER 13, 1974--DECIDED JANUARY

           27, 1975; 372 F.SUPP.  371, REVERSED AND REMANDED. 


    THIS CASE INVOLVES THE ISSUE OF THE CONSTITUTIONALITY OF A

  FEDERAL-COURT-ORDERED REAPPORTIONMENT OF THE NORTH DAKOTA

  LEGISLATIVE ASSEMBLY.  FOLLOWING PROTRACTED STATE AND FEDERAL

  LITIGATION CHALLENGING VARIOUS APPORTIONMENT PLANS, STATUTES, AND

  STATE CONSTITUTIONAL PROVISIONS, INCLUDING A FEDERAL ACTION IN

  UHICH A THREE-JUDGE DISTRICT COURT IN 1965 APPROVED A

  REAPPORTIONMENT PLAN THAT INCLUDED FIVE MULTIMEMBER SENATORIAL

  DISTRICTS, APPELLANTS BROUGHT THE PRESENT FEDERAL ACTION AGAINST

  APPELLEE, THE SECRETARY OF STATE, ALLEGING THAT SUBSTANTIAL

  POPULATION SHIFTS HAD OCCURRED AND THAT THE 1965 PLAN NO LONGER

MET EQUAL PROTECTION REQUIREMENTS, AND REQUESTING THE COURT TO

  ORDER APPORTIONMENT BASED ON THE 1970 CENSUS FIGURES, TO PROVIDE

  FOR SINGLE-MEMBER DISTRICTS, TO DECLARE THE 1965 PLAN INVALID,

  AND TO RESTRAIN APPELLEE FROM ADMINISTERING THE ELECTION LAWS

  UNDER THAT PLAN.  A THREE-JUDGE DISTRICT COURT, HOLDING THAT SUCH

  PLAN FAILED TO MEET CONSTITUTIONAL STANDARDS, APPROVED ANOTHER

  PLAN THAT CALLED FOR FIVE MULTIMEMBER SENATORIAL DISTRICTS AND

  THAT CONTAINED A 20% POPULATION VARIANCE BETWEEN THE LARGEST AND

  SMALLEST SENATORIAL DISTRICTS.  HELD: 

     1.  THIS COURT HAS JURISDICTION OF THE APPEAL UNDER 28 U.S.C.

  1253.  ALTHOUGH THE CHALLANGED REAPPORTIONMENT PLAN WAS COURT

  ORDERED, ITS ENFORCEMENT IS BASED ON THE STATE'S CONSTITUTIONAL

  AND STATUTES, ITS EFFECTUATION DIRECTLY DEPENDS ON THE STATE

  ELECTION LAW MACHINERY, AND THE PLAN ITSELF IS A COURT-IMPOSED

  REPLACEMENT OF STATE CONSTITUTIONAL PROVISIONS AND

  REAPPORTIONMENT STATUTES.  PP. 13 - 14. 

2.  ABSENT PERSUASIVE JUSTIFICATION, A FEDERAL DISTRICT COURT

  IN ORDERING STATE LEGISLATIVE REAPPORTIONMENT SHOULD REFRAIN FROM

  IMPOSING MULTIMEMBER DISTRICTS UPON A STATE.  HERE THE DISTRICT

  COURT HAS FAILED TO ARTICULATE A SIGNIFICANT STATE INTEREST

  SUPPORTING ITS DEPARTURE FROM THE GENERAL PREFERENCE FOR

  SINGLE-MEMBER DISTRICTS IN COURT-ORDERED REAPPORTIONMENT PLANS

  THAT THIS COURT RECOGNIZED IN CONNOR V. JOHNSON, 402 U.S. 690,

  AND UNLESS THE DISTRICT COURT CAN ARTICULATE SUCH A "SINGULAR

  COMBINATION OF UNIQUE FACTORS" AS WAS FOUND TO EXIST IN MAHAN V.

  HOWELL, 410 U.S. 315, 333, OR UNLESS THE 1975 LEGISLATIVE

  ASSEMBLY APPROPRIATELY ACTS, THE COURT SHOULD PROCEED

  EXPEDITIOUSLY TO REINSTATE SINGLE-MEMBER SENATE DISTRICTS.  PP.

14 - 21. 

     3.  A POPULATION DEVIATION OF SUCH MAGNITUDE IN A COURT
ORDERED

  REAPPORTIONMENT PLAN AS THE 20% VARIANCE INVOLVED HERE IS

  CONSTITUTIONALLY IMPERMISSIBLE ABSENT SIGNIFICANT STATE POLICIES

  OR OTHER ACCEPTABLE CONSIDERATIONS REQUIRING ITS ADOPTION.  THE

  BURDEN IS ON THE DISTRICT COURT TO ELUCIDATE THE REASONS

  NECESSITATING ANY DEPARTURE FROM APPROXIMATE POPULATION EQUALITY

  AND TO ARTICULATE CLEARLY THE RELATIONSHIP BETWEEN THE VARIANCE

  AND THE STATE POLICY FURTHERED.  HERE THE DISTRICT COURT'S

  ALLOWANCE OF THE 20% VARIANCE IS NOT JUSTIFIED, AS THE COURT

  CLAIMED, BY THE ABSENCE OF "ELECTORALLY VICTIMIZED MINORITIES,"

  BY THE SPARSENESS OF NORTH DAKOTA'S POPULATION, BY THE DIVISION

  OF THE STATE CAUSED BY THE MISSOURI RIVER, OR BY THE ASSERTED

  STATE POLICY OF OBSERVING GEOGRAPHICAL BOUNDARIES AND EXISTING

  POLITICAL SUBDIVISIONS, ESPECIALLY WHEN IT APPEARS THAT OTHER,

  LESS STATISTICALLY OFFENSIVE, REAPPORTIONMENT PLANS ALREADY

  DEVISED ARE FEASIBLE.  PP. 21 - 26. 

     BLACKMAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE ISSUE OF THE CONSTITUTIONALITY OF A FEDERAL
COURT-ORDERED REAPPORTIONMENT OF THE NORTH DAKOTA LEGISLATURE, CALLED
IN THAT STATE THE LESGILATIVE ASSEMBLY.  THAT STATE, LIKE MANY OTHERS,
HAS STRUGGLED TO SATISFY CONSTITUTIONAL REQUIREMENTS FOR LEGISLATIVE
APPORTIONMENT DELINEATED IN BAKER V. CARR, 369 U.S. 186 (1962); RENOLDS
V. SIMS, 377 U.S. 533 (1964); WMCA, INC. V. LOMENZO, 377 U.S. 633
(1964); MARYLAND COMMITTEE V. TAWES, 377 U.S. 656 (1964); DAVIS V.
MANN, 377 U.S. 678 (1964); ROMAN V. SINCOCK, 377 U.S. 695 (1964); LUCAS
V. COLORADO GENERAL ASSEMBLY, 377 U.S. 713 (1964), AND OTHER CASES. 
THIS LITIGATION IS THE CULMINATION OF THAT STRUGGLE, TOTALLY
INEFFECTUAL ON THE LEGISLATIVE SIDE, DURING THE PAST DECADE. 

  I

        THE STATE'S CONSTITUTION AND ITS STATUTES 

NORTH DAKOTA'S ORGINIAL CONSTITUTION, ADOPTED AT THE STATE'S
ADMISSION INTO THE UNION IN 1889, IS STILL IN EFFECT.  IT HAS BEEN
AMENDED, OF COURSE, FROM TIME TO TIME.  SINCE 1918, 25 THEREOF HAS
READ:  "THE LEGISLATIVE POWER OF THIS STATE SHALL BE VESTED IN A
LEGISLATURE CONSISTING OF A SENATE AND A HOUSE OF REPRESENTATIVES."  N.
D. CONST. ART. II, 25.  THAT LEGISLATIVE POWER FOR 70 YEARS HAS BEEN
SUBJECT TO THE INITIATIVE AND THE REFERENDUM.  IBID.  THE CONSTITUTION
HAS FURTHER PROVIDED THAT THE STATE'S SENATE "SHALL BE COMPOSED OF
FORTY-NINE MEMBERS," 26, ELECTED FOR A FOUR-YEAR TERM, 27, WITH ONE
HALF THEREOF ELECTED EVERY TWO YEARS, 30, AND THAT NO ONE SHALL BE A
SENATOR UNLESS HE IS A QUALIFIED ELECTOR OF THE SENATORIAL DISTRICT,
HAS ATTAINED THE AGE OF 25 YEARS, AND HAS BEEN A RESIDENT OF THE STATE
FOR THE TWO YEARS NEXT PRECEDING THE ELECTION, 28.  SINCE 1960, 29 HAS
READ: 

     "EACH EXISTING SENATORIAL DISTRICT AS PROVIDED BY LAW AT THE

  EFFECTIVE DATE OF THIS AMENDMENT SHALL PERMANENTLY CONSTITUTE A

  SENATORIAL DISTRICT.  EACH SENATORIAL DISTRICT SHALL BE

  REPRESENTED BY ONE SENATOR AND NO MORE."  /1/ LAWS 1959, C. 438;

  LAWS 1961, C. 405. 

THE DOCUMENT ALSO STATE THAT THE HOUSE OF REPRESENTATIVES "SHALL BE
COMPOSED OF NOT LESS THAN SIXTY, NOR MORE THAN ONE HUNDRED FORTY
MEMBERS," 32, ELECTED FOR A TWO-YEAR TERM, 33, AND THAT NO ONE SHALL BE
A REPRESENTATIVE UNLESS HE IS A QUALIFIED ELECTOR OF THE DISTRICT, HAS
ATTAINED THE AGE OF 21 YEARS, AND HAS BEEN A RESIDENT OF THE STATE FOR
THE TWO YEARS NEXT PRECEDING THE ELECTION, 34.  SECTION 35 PROVIDES FOR
AT LEAST ONE REPRESENTATIVE FOR EACH SENATORIAL DISTRICT AND FOR AS
MANY REPRESENTATIVES AS THERE ARE COUNTIES IN THE DISTRICT; STATES THAT
THE LEGISLATIVE ASSEMBLY, AFTER EACH FEDERAL DECENNIAL CENSUS, SHALL
APPORTION "THE BALANCE OF THE MEMBERS OF THE HOUSE OF REPRESENTATIVES,"
AND, IF THE LEGISLATIVE ASSEMBLY FAILS IN ITS APPORTIONMENT DUTY,
PLACES THE TASK OF APPORTIONING THE HOUSE IN A DESIGNATED GROUP OF
OFFICIALS OF THE STATE.  /2/ 

THERE HAVE BEEN COMPLEMENTARY STATUTORY PROVISIONS.  AN
APPORTIONMENT EFFECTED BY LAWS 1931, C. 7, N. D. CENT. CODE 54 - 03 -
01 (1960), WAS IN EFFECT FOR OVER 30 YEARS DESPITE THE MANDATE OF 35 OF
THE CONSTITUTION THAT APPORTIONMENT BE EFFECTED AFTER EACH FEDERAL
CENSUS. 

        II

        PRIOR LITIGATION 

A. THINGS BEGAN TO STIR IN NORTH DAKOTA EVEN PRIOR TO THIS COURT'S
DECISION IN BAKER V. CARR IN 1962.  THE STATE'S LEGISLATIVE ASSEMBLY OF
1961 HAD FAILED TO APPORTION THE HOUSE FOLLOWING THE 1960 CENSUS. 
AFTER BAKER HAD BEEN DECIDED AT THE DISTRICT COURT LEVEL, 179 F.SUPP. 
824 (MD TENN. 1959), AND BETWEEN THE ARGUMENT AND REARGUMENT OF THE
CASE HERE, THE SUPREME COURT OF NORTH DAKOTA DISMISSED AN ORIGINAL
ACTION FOR A PREROGATIVE WRIT TO ENJOIN ITS CHIEF JUSTICE FROM ISSUING
THE APPORTIONMENT PROCLAMATION WHICH WOULD HAVE ANNOUNCED THE
CONCLUSIONS OF THE STATUTORILY DESIGNATED "APPORTIONMENT GROUP" THAT
WERE THEN ANTICIPATED.  THE PETITION ASSERTED THAT THE GROUP'S PLAN
WOULD APPORTION THE HOUSE IN AN UNCONSTITUTIONAL MANNER AND NOT
ACCORDING TO POPULATION.  THE SUPREME COURT RULED THAT THE FUNCTION OF
THE GROUP WAS LEGISLATIVE; THAT IT HAD NOT YET COMPLETED ITS WORK; THAT
IT WAS PERFORMING A FUNCTION THE LEGISLATIVE ASSEMBLY SHOULD HAVE
PERFORMED; AND THAT, UNTIL THE PROCLAMATION WAS ISSUED, THE GROUP'S
ACTION WAS NOT SUBJECT TO CHALLENGE IN THE COURTS.  STATE EX REL.
AAMOTH V. SATHRE, 110 N.W.2D 228 (1961). 

B. CITIZENS OF NORTH DAKOTA THEN SOUGHT DECLARATORY AND INJUNCTIVE
RELIEF IN FEDERAL COURT UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. 1983 AND
1988.  BY THIS TIME THE STATE'S CHIEF JUSTICE HAD ISSUED THE
PROCLAMATION.  A THREE-JUDGE DISTRICT COURT HELD THAT THE PRESENCE OF
THE PROCLAMATION ELIMINATED THE ASPECT OF PREMATURITY THAT HAD
CHARACTERIZED THE EARLIER CHALLENGE IN THE STATE COURT.  BUT THE "BASIC
ISSUES," THE COURT CONCLUDED WITH ONE DISSENT, HAD NOT BEEN PRESENTED
TO THE SUPREME COURT OF NORTH DAKOTA.  "WE BELIEVE THAT COURT SHOULD
HAVE THE OPPORTUNITY OF PASSING ON ALL QUESTIONS HEREIN."  THE COURT,
ACCORDINGLY, ABSTRAINED FROM PASSING UPON THOSE ISSUES; IT STAYED
FURTHER PROCEEDINGS BEFORE IT, BUT DID NOT DISMISS THE ACTION.  LEIN V.
SATHRE, 201 F.SUPP.  535, 542 (ND 1962). 

C. THE PLAINTIFFS IN THE FEDERAL CASE PROMPTLY TOOK TO THE SUPREME
COURT OF NORTH DAKOTA THEIR ATTACK UPON THE PLAN ADOPTED BY THE
APPORTIONMENT GROUP.  THAT COURT ASSUMED JURISDICTION.  STATE EX REL.
LEIN V. SATHRE, 113 N.W.2D 679, 681 (1962).  IT NOTED THAT NO QUESTION
ARISING UNDER THE UNITED STATES CONSTITUTION WAS PRESENTED, ID., AT 681
- 682, AND THAT IT WAS NOT CONCERNED WITH THE VALIDITY OF THE ALLOTMENT
OF ONE REPRESENTATIVE TO EACH SENATORIAL DISTRICT, AS PRESCRIBED BY THE
FIRST SENTENCE OF 35 OF THE CONSTITUTION, ID., AT 683.  THE COURT
RECOGNIZED THAT THERE WAS INHERENT IN A CONSTITUTIONAL DIRECTION TO
APPORTION ACCORDING TO POPULATION "A LIMITED DISCRETION TO MAKE THE
APPORTIONMENT THAT WILL APPROACH, AS NEALY AS IS REASONABLY POSSIBLE, A
MATHEMATICAL EQUALITY."  ID., AT 685.  IT THEN WENT ON TO HOLD THAT THE
APPORTIONMENT MADE BY THE GROUP "VIOLATES THE CONSTITUTIONAL MANDATE OF
APPORTIONMENT ACCORDING TO THE POPULATION OF THE SEVERAL DISTRICTS AND
IS VOID," ID., AT 687, AND THAT THE APPORTIONMENT EFFECTED BY THE 1931
STATUTE CONTINUED TO BE THE LAW UNTIL SUPERSEDED BY AN APPORTIONMENT
VALID UNDER 35 OR UNDER A FURTHER AMENDMENT OF THE CONSTITUTION.  ID.,
AT 687 - 688. 

D. THE SAME PLAINTIFFS THEN TURNED AGAIN TO THE FEDERAL COURT.  THE
THREE-JUDGE COURT, WITH ONE JUDGE DISSENTING, DENIED THE REQUEST FOR
INJUNCTIVE RELIEF ON THE GROUND THAT THE ONLY CHALLENGE BEFORE IT WAS
TO THE APPORTIONMENT GROUP'S PLAN, AND THAT THE 1931 APPORTIONMENT WAS
NOT CHALLENGED.  LEIN V. SATHRE, 205 F.SUPP.  536 (ND 1962).  IT NOTED
THAT THE LEGISLATIVE ASSEMBLY WOULD MEET THE FOLLOWING JANUARY, THAT IT
HAD "THE MANDATORY DUTY" TO APPORTION THE HOUSE, AND THAT THE COURT
WOULD NOT PRESUME THAT IT WOULD NOT PERFORM THAT DUTY.  JURISDICTION
WAS RETAINED, WITH THE OBSERVATION THAT IF THE LEGISLATIVE ASSEMBLY
FAILED TO ACT, THE PLAINTIFFS, UPON APPROPRIATE AMENDMENT OF THEIR
COMPLAINT, MIGHT FURTHER PETITION THE COURT FOR RELIEF.  ID., AT 540. 

E. THE 1963 LEGISLATIVE ASSEMBLY DID REAPPORTION.  LAWS 1963, C.
345 

F. REYNOLDS V. SIMS, 377 U.S. 533, AND ITS COMPANION CASES WERE
DECIDED A NEW SUIT THEN WAS INSTITUTED IN FEDERAL COURT TO INVALIDATE
NORTH DAKOTA'S ENTIRE APPORTIONMENT SYSTEM ON FEDERAL CONSTITUTIONAL
GROUNDS.  SECTIONS 26, 29, AND 35 OF THE CONSTITUTION AND THE 1963
STATUTE WERE CHALLENGED.  THE THREE-JUDGE COURT HELD THAT THESE
CONSTITUTIONAL AND STATUTORY PROVISIONS WERE VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE.  PAULSON V. MEIER, 232 F.SUPP.  183 (ND 1964).  IT
WENT ON TO HOLD THAT THE 1931 APPORTIONMENT, BEING "THE LAST VALID
APPORTIONMENT," AS DESCRIBED BY THE NORTH DAKOTA SUPREME COURT, AND BY
WHICH THE 1963 LEGISLATORS HAD BEEN ELECTED, WAS ALSO INVALID.  THUS,
"THERE IS NO CONSTITUTIONALLY VALID LEGISLATIVE APPORTIONMENT LAW IN
EXISTENCE IN THE STATE OF NORTH DAKOTA AT THIS TIME."  ID., AT 187. 
THE COURT ENCOUNTERED DIFFICULTY AS TO AN APPROPRIATE REMEDY.  IT
CONCLUDED, ONE JUDGE DISSENTING, THAT ADEQUATE TIME WAS NOT AVAILABLE
WITHIN WHICH TO FORMULATE A PROPER PLAN FOR THE THEN FORTHCOMING 1964
ELECTIONS, ID., AT 188; THAT THE 1965 LEGISLATIVE ASSEMBLY WOULD HAVE A
DE FACTO STATUS; AND THAT THAT ASSEMBLY SHOULD PROMPTLY DEVISE A
CONSTITUTIONAL SYSTEM.  INJUNCTIVE RELIEF WAS DENIED.  ID., AT 190. 

G. THE 1965 LEGISLATIVE ASSEMBLY PRODUCED A REAPPORTIONMENT ACT
ALTHOUGH IT WAS NOT APPROVED OR DISAPPROVED BY THE GOVERNOR.  LAWS
1965, C. 338. 

H. THE NORTH DAKOTA SECRETARY OF STATE, DEFENDANT IN THE FEDERAL
COURT, THEN MOVED TO DISMISS THE FEDERAL ACTION ON THE GROUND THAT THE
1965 ACT MET CONSTITUTIONAL REQUIREMENTS.  THE THREE-JUDGE COURT,
HOWEVER, RULED OTHERWISE.  PAULSON V. MEIER, 246 F.SUPP.  36, 43 (ND
1965).  IT TURNED TO THE QUESTION OF REMEDY AND CONCLUDED THAT THE
LEGISLATIVE ASSEMBLY HAD HAD ITS OPPORTUNITY AND THAT THE COURT NOW HAD
THE DUTY ITSELF TO TAKE AFFIRMATIVE ACTION.  ID., AT 43 - 44.  IT
CONSIDERED SEVERAL PLANS THAT HAD BEEN INTRODUCED IN THE ASSEMBLY AND
CENTERED ITS ATTENTION ON THE SMITH PLAN.  ALTHOUGH THE COURT FOUND THE
PLAN "NOT PERFECT" (FIVE MULTIMEMBER SENATORIAL DISTRICTS, /3/ AND
COUNTY LINES VIOLATED IN 12 INSTANCES), IT CONCLUDED THAT THE PLAN, IF
"SLIGHTLY" MODIFIED, WOULD MEET CONSTITUTIONAL STANDARDS ("IMPRESSIVE
MATHEMATICAL EXACTNESS," NAMELY, 25 OF 39 DISTRICTS WITHIN 5% OF THE
AVERAGE POPULATION, FOUR SLIGHTLY OVER 5%, AND ONLY TWO EXCEEDING 9%). 
ID., AT 44 - 45.  THE "SLIGHT"  MODIFICATION WAS MADE AND
REAPPORTIONMENT, REALLY THE FIRST TO BE FINALLY EFFECTED SINCE 1931,
WAS THEREFORE ACCOMPLISHED IN NORTH DAKOTA BY FEDERAL COURT
INTERVENTION. 

I. STILL ANOTHER ORIGINAL PROCEEDING IN THE STATE'S SUPREME COURT
WAS INSTITUTED.  THIS ONE CHALLENGED THE RIGHT OF SENATORS FROM THE
MULTIMEMBER DISTRICTS TO HOLD OFFICE.  IT WAS CLAIMED THAT THIS
MULITPLE MEMBERSHIP VIOLATED 29 OF THE NORTH DAKOTA CONSTITUTION WHICH
PROVIDED THAT EACH SENATORIAL DISTRICT "SHALL BE REPRESENTED BY ONE
SENATOR AND NO MORE."  THE STATE COURT HELD THAT THE 1965 JUDGMENT OF
THE FEDERAL COURT WAS NOT RES JUDICATA AS TO THE THEN PLAINTIFFS; THAT
THE INITIAL OR "FREEZING" PORTION OF 29 WAS CLEARLY INVALID; THAT THE
CONCLUDING PORTION, RESTRICTING REPRESENTATION OF A DISTRICT TO ONE
SENATOR, WOULD NOT HAVE BEEN DESIRED BY THE PEOPLE WITHOUT THE
"BALANCE" OF THE FREEZING PORTION; AND THAT 29 AS A UNIT MUST FALL AS
VIOLATIVE OF EQUAL PROTECTION.  STATE EX REL. STOCKMAN V. ANDERSON, 184
N.W.2D 53 (1971).  THE RESULT WAS THAT MULTIMEMBER SENATORIAL DISTRICTS
WERE NOT HELD ILLEGAL BY THE STATE COURT. 

        III

        THE PRESENT LITIGATION 

THE 1970 FEDERAL CENSUS WAS TAKEN IN DUE COURSE.  THE 1971
LEGISLATIVE ASSEMBLY FAILED TO REAPPORTION.  THE PRESENT FEDERAL ACTION
WAS INSTITUTED THE FOLLOWING NOVEMBER.  THE PLAINTIFFS ALLEGED THAT
SUBSTANTIAL SHIFTS IN POPULATION HAD TAKEN PLACE, AND THAT THE COURT
ORDERED PLAN OF 1965 NO LONGER COMPLIED WITH THE REQUIREMENTS OF THE
EQUAL PROTECTION CLAUSE.  THE RELIEF REQUESTED WAS THAT THE COURT ORDER
APPORTIONMENT UPON THE 1970 CENSUS FIGURES AND ALSO PROVIDE FOR SINGLE
MEMBER DISTRICTS; THAT THE 1965 PLAN BE DECLARED INVALID; AND THAT THE
SECRETARY OF STATE BE RESTRAINED FROM ADMINISTERING THE ELECTION LAWS
UNDER THAT PLAN. 

ON MAY 22, 1972, THE THREE-JUDGE COURT ENTERED AN ORDER TO THE
EFFECT THAT THE EXISTING NORTH DAKOTA APPORTIONMENT FAILED TO MEET
FEDERAL CONSTITUTIONAL STANDARDS AND THAT THE COURT WOULD ATTEMPT TO
REAPPORTION.  JURISDICTIONAL STATEMENT A - 54.  IT APPOINTED A
COMMISSION TO FORMULATE AND PRESENT A PLAN WITHIN 30 DAYS, AND IT
SUBMITTED GUIDELINES TO THE COMMISSION.  WITH RESPECT TO MULTIMEMBER
DISTRICTS, THE ORDER PROVIDED: 

"WE HAVE CONSIDERED THE MATTER OF 'MULTI-MEMBER' DISTRICTS AND
CONCLUDE THERE IS INSUFFICIENT TIME PRIOR TO THE 1972 ELECTIONS TO
FULLY EXPLORE AND RESOLVE THE ISSUES INVOLVED.  THE MATTER OF 'MULTI
MEMBER' DISTRICTS WILL BE STUDIED IN DEPTH BY THE COMMISSION, AND THE
RESULTS OF THAT STUDY BE MADE AVAILABLE TO US."  ID., AT A - 55. 

AN OPINION WAS FILED ON JUNE 30.  372 F.SUPP.  363.  THIS RECITED
THAT THE COMMISSION HAD PRESENTED EIGHT SEPARATE PLANS TO THE COURT;
THAT SHIFTS IN POPULATION SINCE 1960 HAD RESULTED IN CONSTITUTIONALLY
IMPERMISSIBLE POPULATION VARIATIONS AMONG EXISTING DISTRICTS; THAT A
PLAN SUBMITTED BY COMMISSIONER DODSON SUBSTANTIALLY REDUCED THE
DISPROPORTIONATE REPRESENTATION, ALTHOUGH IT DECREASED THE NUMBER OF
DISTRICTS BY ONE AND INCREASED THE NUMBER OF SENATORS BY TWO AND THE
NUMBER OF REPRESENTATIVES BY FOUR.  /4/  "(CERTAIN WEAKNESSES" IN THE
PLAN WERE RECOGNIZED, INCLUDING "SOME VARIANCE IN POPULATION . . .
WHICH, IN A FEW INSTANCES, SEEMS SUBSTANTIAL," AND A CONSTITUTION OF
MULTIMEMBER DISTRICTS.  ID., AT 366.  THESE DISTRICTS INCLUDED THE
STATE'S FIVE LARGEST CITIES.  THE COURT NOTED THAT THE DISTRICTS HAD
BEEN CREATED NOT BY ENACTMENT OF THE LEGISLATIVE ASSEMBLY, BUT BY THE
FEDERAL COURT IN THE 1965 PAULSON DECISION, AND OBSERVED, IBID.: "IN
LIGHT OF SUBSEQUENT (UNITED STATES) SUPREME COURT PRONOUNCEMENTS, WE
BELIEVE IT WOULD BE IMPROPER FOR THIS COURT TO PERMIT THEIR
CONTINUATION IN A COURT-FASHIONED PLAN."  CONNOR V. JOHNSON, 402 U.S.
690 (1971), AND CONNOR V. WILLIAMS, 404 U.S. 549, 551 (1972), WERE
CITED.  THE COURT, HOWEVER, FELT     "CONSTRAINED TO PERMIT MULTI
MEMBER DISTRICTS TO CONTINUE DURING THE 1972 ELECTIONS . . . TO AVOID
EXTREME DISRUPTIONS IN THE ELECTIVE PROCESSES.  . . . WE FEEL THAT THE
ELECTORATE WILL BE BETTER SERVED BY MINIMIZING THE CONFUSION
SURROUNDING THE IMPENDING ELECTIONS, THAN IT WOULD BE BY THE ABOLITION
OF MULTI-MEMBER DISTRICTS AT THIS ELEVENTH HOUR."  372 F.SUPP.,AT 366. 
THE DOBSON PLAN WAS THEREFORE APPROVED "FOR THE 1972 ELECTION ONLY." 
ID., AT 367.  AN ALTERNATIVE, THE OSTENSON PLAN, WAS COMMENDED TO THE
COMMISSION FOR "FURTHER STUDY," WITH A DIRECTION TO MODIFY IT "SO AS TO
ELIMINATE THE EXISTING MULTI-MEMBER SENATE DISTRICTS."  ID., AT 367 -
368.  CHIEF DISTRICT JUDGE BENSON DISSENTED AS TO THE LIMITATION OF THE
DOBSON PLAN TO THE 1972 ELECTION; FOR HIM, THE CONNOR LITIGATION WAS
DISTINGUISHABLE ON RACIAL GROUNDS AND THE DESIRABILITY OF MULTIMEMBER
DISTRICTS WAS A QUESTION FOR THE LEGISLATIVE ASSEMBLY AND NOT FOR THE
COURT.  ID., AT 368 - 369.  JURISDICTION WAS RETAINED. 

ON NOVEMBER 8, 1972, IMMEDIATELY AFTER THE ELECTION THAT YEAR, THE
THREE-JUDGE COURT SUSPENDED ITS JUNE 30 ORDER UNTIL FURTHER NOTICE AND
DIRECTED THE STATE'S ATTORNEY GENERAL PROMPTLY TO REPORT ANY ACTION
TAKEN BY THE 1973 LEGISLATIVE ASSEMBLY. 

THAT ASSEMBLY NOT ONLY PASSED AN APPORTIONMENT ACT BUT OVERRODE ITS
VETO BY THE GOVERNOR.  /5/ LAWS 1973, C. 411, AND NOTE, AT 1178.  THE
ACT PROVIDED FOR 37 LEGISLATIVE DISTRICTS, EACH HAVING ONE SENATOR AND
TWO REPRESENTATIVES, EXCEPT FOR FIVE MULTIMEMBER SENATORIAL DISTRICTS. 
AND THE POPULATION VARIANCE (PLUS 3.3% TO MINUS 3.5%, A TOTAL OF 6.8%;
OR PLUS 408 PERSONS TO MINUS 432 PERSONS, A TOTAL OF 840 PERSONS) FROM
THE AVERAGE OF 12,355 PER SENATOR. 

THE EFFECTIVENESS OF THE LEGISLATIVE PLAN, HOWEVER, PROMPTLY WAS
SUSPENDED BY A REFERENDUM PETITION.  SEE LAWS 1973, P. 1549.  BY A
COMPANION INITIATIVE PETITION, AN AMENDMENT TO THE STATE'S CONSTITUTION
WAS PROPOSED; THIS WOULD HAVE CREATED A COMMISSION TO REAPPORTION THE
STATE AND, IN ADDITION, WOULD HAVE MANDATED SINGLE-MEMBER SENATORIAL
DISTRICTS.  A SPECIAL ELECTION ON THESE TOOK PLACE DECEMBER 4, 1973. 
BOTH WERE DEFEATED.  THE LEGISLATIVE ASSEMBLY'S WORK TO REAPPORTION WAS
THUS NULLIFIED BY THE PEOPLE.  IT COULD BE SUGGESTED, AND APPARENTLY
WAS, THAT THE PEOPLE ALSO REACTED AGAINST THE ELIMINATION OF THE FIVE
MULTIMEMBER DISTRICTS.  IN ANY EVENT, THE DEFENDANT THEREUPON MOVED THE
FEDERAL COURT TO READOPT THE PLAN TEMPORARILY APPROVED BY ITS ORDER OF
JUNE 1972.  THE PLAINTIFFS RESISTED. 

THE THREE-JUDGED DISTRICT COURT, WITH CIRCUIT JUDGE BRIGHT
DISSENTING, THEN MADE "PERMANENT" THE 1972 DOBSON PLAN, WITH ITS FIVE
MULTIMEMBER DISTRICTS PROVIDING 18 SENATORS OUT OF A STATEWIDE TOTAL OF
51.  372 F.SUPP.  371, 379 (ND 1974).  WE NOTED PROBABLE JURISDICTION. 
416 U.S. 966 (1974). 

 IV

        JURISDICTION 

WE ARE MET AT THE THRESHOLD WITH A MILD QUESTION OF JURISDICTION NOT
PRESSED BY THE PARTIES.  WE HAVE JURISDICTION UNDER 28 U.S.C. 1253 /6/
ONLY IF A THREE-JUDGE COURT WAS REQUIRED BY 28 U.S.C. 2281.  /7/ 

IT MIGHT BE SUGGESTED THAT THE THREE-JUDGE COURT HERE DID NOT
RESTRAIN THE ENFORCEMENT OF A STATUTE BUT, INSTEAD, THE ENFORCEMENT OF
THE COURT-ORDERED PLAN OF 1965 WHICH HAD BECOME UNCONSTITUTIONAL IN THE
CIRCUMSTANCES OF 1972, AND, HENCE, THAT THE PROVISIONS OF 2281 WERE NOT
SATISFIED.  THE ARGUMENT IS LESS THAN PERSUASIVE AND WE CONCLUDE THAT
IT IS WITHOUT MERIT.  ALTHOUGH THE REAPPORTIONMENT NOW UNDER ATTACK WAS
INDEED COURT ORDERED, ITS ENFORCEMENT IS DOUBLY BASED ON THE STATE'S
CONSTITUTION AND STATUTES.  ITS EFFECTUATION DIRECTLY DEPENDS ON THE
STATE ELECTION LAW MACHINERY AND, IN ADDITION, THE PLAN ITSELF IS A
COURT-IMPOSED REPLACEMENT OF THE NORTH DAKOTA CONSTITUTIONAL PROVISIONS
AND THE 1931, 1963, AND 1965 REAPPORTIONMENT STATUTES.  IT IS THESE
THAT ARE, AND HAVE BEEN, THE PRIMARY OBJECTS OF ATTACK.  IT WOULD BE
HIGHLY ANOMALOUS IF JURISDICTION WERE NOT HERE, FOR THEN IT WOULD
FOLLOW THAT A SINGLE JUDGE COULD INVALIDATE AN APPORTIONMENT PLAN THAT
HAD BEEN EVOLVED OR APPROVED, AND WAS REQUIRED SO TO BE, BY A THREE
JUDGE COURT SOME TIME BEFORE.  SUBJECT MATTER OF THIS KIND IS REGULAR
GRIST FOR THE THREE-JUDGE COURT, AND THAT ROUTE TYPICALLY HAS BEEN
EMPLOYED UNDER CONDITIONS SIMILAR TO THOSE PRESENT HERE.  SEE, E.G.,
SKOLNICK V. STATE ELECTORAL BOARD OF ILLINOIS, 336 F.SUPP.  839 (ND
ILL. 1971).  WE THINK THIS IS CORRECT PROCEDURE AND WE CONCLUDE THAT WE
HAVE JURISDICTION. 

        V

        THE MULTIMEMBER DISTRICTS 

FROM THE ABOVE REVIEW OF THE NORTH DAKOTA CONSTITUTIONAL AND
STATUTORY PROVISIONS AND OF THE LITIGATION OF THE PAST 12 YEARS, TWO
SIGNIFICANT FACTS EMERGE:  THE FIRST IS THAT SOME MULTIMEMBERSHIP ON
THE HOUSE SIDE OF THE LEGISLATIVE ASSEMBLY TRADITIONALLY HAS EXISTED. 
THIS PLAINLY QUALIFIES AS ESTABLISHED STATE POLICY.  /8/ THE SECOND IS
THAT, IN CONTRAST, MULTIMEMBERSHIP ON THE SENATE SIDE, EVEN AS TO THE
FIVE DISTRICTS, HAS NEVER EXISTED EXCEPT AS IMPOSED (A) BY THE THREE
JUDGE FEDERAL COURT BY ITS 1965 PAULSON DECISION; (B) BY A MAJORITY OF
THE THREE-JUDGE COURT AS A TEMPORARY EXPEDIENT FOR THE 1972 ELECTION
ONLY; (C) BY THE PROVISIONS OF THE 1973 ACT IMMEDIATELY NULLIFIED BY
REFERENDUM; AND (D) BY A DIFFERENT MAJORITY OF THE THREE-JUDGE COURT AS
A "PERMANENT" SOLUTION IN THE JUDGMENT UNDER REVIEW.  THUS ONLY ONCE
HAS THE LEGISLATIVE ASSEMBLY PROVIDED FOR MULTIMEMBER SENATE
REPRESENTATION AND THAT EFFORT WAS PROMPTLY ABORTED.  EVERY OTHER SUCH
PROVISION IN NORTH DAKOTA'S HISTORY HAS BEEN COURT IMPOSED. 
MULTIMEMBER SENATE REPRESENTATION, THEREFORE, OBVIOUSLY DOES NOT
QUALIFY AS ESTABLISHED STATE POLICY. 

THIS COURT HAS REFRAINED FROM HOLDING THAT MULTIMEMBER DISTRICTS IN
APPORTIONMENT PLANS ADOPTED BY STATES FOR THEIR LEGISLATURES ARE PER SE
UNCONSTITUTIONAL.  WHITE V. REGESTER, 412 U.S. 755, 765 (1973), AND
CASES CITED THEREIN.  ON THE CONTRARY, THE COURT HAS UPHELD NUMEROUS
STATE-INITIATED APPORTIONMENT SCHEMES UTILIZING MULTIMEMBER DISTRICTS. 
SEE, E.G., KILGARLIN V. HILL, 386 U.S. 120 (1967); BURNS V. RICHARDSON,
384 U.S. 73 (1966); FORTSON V. DORSEY, 379 U.S. 433 (1965).  AND,
BEGINNING WITH REYNOLDS V. SIMS, 377 U.S.,AT 577, THE COURT HAS
INDICATED THAT A STATE MIGHT DEVISE AN APPORTIONMENT PLAN FOR A
BICAMERAL LEGISLATURE WITH ONE BODY COMPOSED OF AT LEAST SOME
MULTIMEMBER DISTRICTS, AS LONG AS SUBSTANTIAL EQUALITY OF POPULATION
PER REPRESENTATIVE IS MAINTAINED. 

NOTWITHSTANDING THIS PAST ACCEPTANCE OF MULTIMEMBER DISTRICTING
PLANS, WE RECOGNIZE THAT THERE ARE PRACTICAL WEAKNESSES INHERENT IN
SUCH SCHEMES.  FIRST, AS THE NUMBER OF LEGISLATIVE SEATS WITHIN THE
DISTRICT INCREASES, THE DIFFICULTY FOR THE VOTER IN MAKING INTELLIGENT
CHOICES AMONG CANDIDATES ALSO INCREASES.  SEE LUCAS V. COLORADO GENERAL
ASSEMBLY, 377 U.S.,AT 731.  BALLOTS TEND TO BECOME UNWIELDY, CONFUSING,
AND TOO LENGTHY TO ALLOW THOUGHTFUL CONSIDERATION.  SECOND, WHEN
CANDIDATES ARE ELECTED AT LARGE, RESIDENTS OF PARTICULAR AREAS WITHIN
THE DISTRICT MAY FEEL THAT THEY HAVE NO REPRESENTATIVE SPECIALLY
RESPONSIBLE TO THEM.  IBID.  /9/ THIRD, IT IS POSSIBLE THAT BLOC VOTING
BY DELEGATES FROM A MULTIMEMBER DISTRICT MAY RESULT IN UNDUE
REPRESENTATION OF RESIDENTS OF THESE DISTRICTS RELATIVE TO VOTERS IN
SINGLE-MEMBER DISTRICTS.  THIS POSSIBILITY, HOWEVER, WAS REJECTED,
ABSENT CONCRETE PROOF, IN WHITCOMB V. CHAVIS, 403 U.S. 124, 147
(1971).  CRITICISM OF MULTIMEMBER DISTRICTS HAS BEEN FREQUENT AND
WIDESPREAD.  ID., AT 157 - 160, /10/  AND ARTICLES CITED THEREIN.  SEE
GENERALLY CARPENETI, LEGISLATIVE APPORTIONMENT:  MULTIMEMBER DISTRICTS
AND FAIR REPRESENTATION, 120 U.PA.L.REV.  666 (1972); BANZHAF, MULTI
MEMBER ELECTORAL DISTRICTS--DO THEY VIOLATE THE "ONE MAN, ONE VOTE"
PRINCIPLE, 75 YALE L.J. 1309 (1966). 

IN FORTSON V. DORSEY, SUPRA, WE HELD THAT THE MERE ASSERTION OF SUCH
POSSIBLE WEAKNESSES IN A LEGISLATURE'S MULTIMEMBER DISTRICTING PLAN WAS
INSUFFICIENT TO ESTABLISH A DENIAL OF EQUAL PROTECTION.  RATHER, IT
MUST BE SHOWN THAT 

"DESIGNEDLY OR OTHERWISE, A MULTI-MEMBER CONSTITUENCY APPORTIONMENT
SCHEME, UNDER THE CIRCUMSTANCES OF A PARTICULAR CASE, WOULD OPERATE TO
MINIMIZE OR CANCEL OUT THE VOTING STRENGTH OF RACIAL OR POLITICAL
ELEMENTS OF THE VOTING POPULATION."  379 U.S.,AT 439.  FURTHER, THERE
MUST BE MORE EVIDENCE THAN A SIMPLE DISPROPORTIONALITY BETWEEN THE
VOTING POTENTIAL AND THE LEGISLATIVE SEATS WON BY A RACIAL OR POLITICAL
GROUP.  THERE MUST BE EVIDENCE THAT THE GROUP HAS BEEN DENIED ACCESS TO
THE POLITICAL PROCESS EQUAL TO THE ACCESS OF OTHER GROUPS.  WHITE V.
REGESTER, 412 U.S.,AT 765 - 766.  SUCH EVIDENCE MAY BE MORE EASILY
DEVELOPED WHERE THE MULTIMEMBER DISTRICTS COMPOSE A LARGE PART OF THE
LEGISLATURE, WHERE BOTH BODIES IN A BICAMERAL LEGISLATURE UTILIZE
MULTIMEMBER DISTRICTS OR WHERE THE MEMBERS'  RESIDENCES ARE
CONCENTRATED IN ONE PART OF THE DISTRICT.  BURNS V. RICHARDSON, 384
U.S.,AT 88.  /11/ WHETHER SUCH FACTORS ARE PRESENT OR NOT, PROOF OF
LESSENING OR CANCELLATION OF VOTING STRENGTH MUST BE OFFERED. 

THIS REQUIREMENT THAT ONE CHALLENGING A MULTIMEMBER DISTRICTING PLAN
MUST PROVE THAT THE PLAN MINIMIZES OR CANCELS OUT THE VOTING POWER OF A
RACIAL OR POLITICAL GROUP HAS BEEN APPLIED IN CASES INVOLVING
APPORTIONMENT SCHEMES ADOPTED BY STATE LEGISLATURES.  IN CONNOR V.
JOHNSON, 402 U.S. 690 (1971), HOWEVER, WHICH CAME TO US ON AN
APPLICATION FOR A STAY, WE WERE PRESENTED WITH A COURT-ORDERED
REAPPORTIONMENT SCHEME HAVING SOME MULTIMEMBER DISTRICTS IN BOTH BODIES
OF THE STATE LEGISLATURE.  WE STATED EXPLICITLY THAT "WHEN DISTRICT
COURTS ARE FORCED TO FASHION APPORTIONMENT PLANS, SINGLE-MEMBER
DISTRICTS ARE PREFERABLE TO LARGE MULTI-MEMBER DISTRICTS AS A GENERAL
MATTER."  ID., AT 692.  EXERCISING OUR SUPERVISORY POWER, WE DIRECTED
THE DISTRICT COURT TO DEVISE A SINGLE-MEMBER DISTRICTING PLAN, "ABSENT
INSURMOUNTABLE DIFFICULTIES."  IBID.  THIS PREFERENCE FOR AND EMPHASIS
UPON SINGLE-MEMBER DISTRICTS IN COURT-ORDERED PLANS WAS REAFFIRMED IN
CONNOR V. WILLIAMS, 404 U.S.,AT 551, AND AGAIN IN MAHAN V. HOWELL, 410
U.S. 315, 333 (1973).  IN THE LATTER CASE A DISTRICT COURT WAS HELD TO
HAVE ACTED WITHIN ITS DISCRETION IN FORMING A MULTIMEMBER DISTRICT AS
AN INTERIM REMEDY IN ORDER TO ALLEVIATE SUBSTANTIAL UNDERREPRESENTATION
OF MILITARY PERSONNEL IN AN IMPENDING ELECTION.  /12/ 

THE STANDARDS FOR EVALUATING THE USE OF MULTIMEMBER DISTRICTS THUS
CLEARLY DIFFER DEPENDING ON WHETHER A FEDERAL COURT OR A STATE
LEGISLATURE HAS INITIATED THE USE.  THE PRACTICAL SIMULTANEITY OF
DECISION IN CONNOR V. JOHNSON AND IN WHITCOMB V. CHAVIS, SUPRA, SO
DEMONSTRATES.  WHEN THE PLAN IS COURT ORDERED, THERE OFTEN IS NO STATE
POLICY OF MULTIMEMBER DISTRICTING WHICH MIGHT DESERVE RESPECT OR
DEFERENCE.  INDEED, IF THE COURT IS IMPOSING MULTIMEMBER DISTRICTS UPON
A STATE WHICH ALWAYS HAS EMPLOYED SINGLE-MEMBER DISTRICTS, THERE IS
SPECIAL REASON TO FOLLOW THE CONNOR RULE FAVORING THE LATTER TYPE OF
DISTRICTING. 

APPELLANTS DO NOT CONTEND THAT ANY RACIAL OR POLITICAL GROUP /13/
HAS BEEN DISCRIMINATED AGAINST BY THE MULTIMEMBER DISTRICTING ORDERED
BY THE DISTRICT COURT.  THEY ONLY SUGGEST THAT THE DISTRICT COURT HAS
NOT FOLLOWED OUR MANDATE IN CONNOR V. JOHNSON, AND THAT THE COURT HAS
FAILED TO ARTICULATE ANY REASONS FOR THIS DEPARTURE.  WE AGREE.  ABSENT
PARTICULARLY PRESSING FEATURES CALLING FOR MULTIMEMBER DISTRICTS, A
UNITED STATES DISTRICT COURT SHOULD REFRAIN FROM IMPOSING THEM UPON A
STATE. 

THE DISTRICT COURT CANNOT AVOID THE MULTIMEMBER ISSUE BY LABELING
IT, SEE 372 F.SUPP.,AT 377, A POLITICAL ISSUE TO BE RESOLVED BY THE
STATE.  THE DISTRICT COURT ITSELF CREATED MULTIMEMBER DISTRICTING IN
NORTH DAKOTA, AND IT MIGHT BE SAID TO BE DISINGENUOUS TO SUGGEST THAT
THE JUDICIAL CREATION BECAME A POLITICAL QUESTION SIMPLY BY THE PASSAGE
OF NINE YEARS.  THE DISTRICT COURT'S TREATMENT OF THIS ISSUE DIRECTLY
CONFLICTS WITH ITS PRIOR OPINION IN THIS CASE, WHERE IT ALLOWED
CONTINUATION OF THE MULTIMEMBER DISTRICTS FIRST ESTABLISHED IN THE
PAULSON DECISION IN 1965 ONLY AS AN INTERIM REMEDY.  372 F.SUPP.,AT
367.  THE COURT THERE NOTED THAT IN THE LARGEST MULTIMEMBER DISTRICT, A
VOTER WOULD BE ASKED TO EVALUATE THE QUALIFICATIONS OF AT LEAST 30
CANDIDATES FOR THE STATE LEGISLATURE, A "MOST FORMIDABLE" TASK.  ID.,
AT 366.  TAKING NOTE OF CONNOR V. JOHNSON, THE COURT HELD IN 1972 THAT
IT WOULD BE IMPROPER TO PERMIT MULTIMEMBER DISTRICTS TO REMAIN
PERMANENTLY, AND ALLOWED CONTINUED USE ONLY FOR THE IMPENDING ELECTION
BECAUSE OF THE GREAT CONFUSION THAT OTHERWISE WOULD RESULT.  THE COURT
APPEARS NOW TO HAVE ABANDONED THAT POSITION, WITH NO SUGGESTION OF
REASONS FOR THE ABRUPT CHANGE.  IT IS ESPECIALLY ANOMALOUS THAT THE
COURT WOULD CONTINUE WITH THE MULTIMEMBER DISTRICTING PLAN, WHEN THE
SPECIAL MASTER WHO INITIALLY PROPOSED IT HAS DISAVOWED USE OF PERMANENT
MULTIMEMBER DISTRICTS.  DOBSON, REAPPORTIONMENT PROBLEMS, 48
N.D.L.REV.  281, 289 (1972). 

IN CONTRAST, THE DISSENT IN THE DISTRICT COURT SUGGESTS A WIDE RANGE
OF ATTRIBUTES OF SINGLE-MEMBER DISTRICTS.  372 F.SUPP.,AT 391.  ONE
ADVANTAGE IS OBVIOUS:  CONFUSION ENGENDERED BY MULTIPLE OFFICES WILL BE
REMOVED.  OTHER ADVANTAGES PERHAPS ARE MORE SPECULATIVE:  SINGLE-MEMBER
DISTRICTS MAY PREVENT DOMINATION OF AN ENTIRE SLATE BY A NARROW
MAJORITY, MAY EASE DIRECT COMMUNICATION WITH ONE'S SENATOR, MAY REDUCE
CAMPAIGN COSTS, AND MAY AVOID BLOC VOTING.  OF COURSE, THESE ARE
GENERAL VIRTUES OF SINGLE-MEMBER DISTRICTS, AND THERE IS NO GUARANTEE
THAT ANY PARTICULAR FEATURE WILL BE FOUND IN A SPECIFIC PLAN.  NEITHER
THE DISTRICT COURT MAJORITY NOR APPELLEE, HOWEVER, HAS PROVIDED US WITH
ANY SUGGESTION OF A LEGITIMATE STATE INTEREST SUPPORTING THE
ABANDONMENT OF THE GENERAL PREFERENCE FOR SINGLE-MEMBER DISTRICTS IN
COURT-ORDERED PLANS WHICH WE RECOGNIZED IN CONNOR V. JOHNSON.  /14/ THE
FACT THAT NO ALLEGATION OF MINORITY GROUP DISCRIMINATION IS RAISED BY
APPELLANTS HERE DOES NOT MAKE CONNOR INAPPLICABLE.     IT IS TRUE THAT
IN 1973 THE VOTERS OF NORTH DAKOTA VOTED DOWN A PROPOSED CONSTITUTIONAL
AMENDMENT WHICH WOULD HAVE RE-ESTABLISHED THE STATE'S TRADITION OF
SINGLE-MEMBER SENATORIAL DISTRICTS.  AT THE SAME TIME THE VOTERS ALSO
REJECTED BY REFERENDUM THE LEGISLATIVE ASSEMBLY'S 1973 ACT WHICH WOULD
HAVE CONTINUED THE MULTIMEMBER FORMAT FOR FIVE DISTRICTS.  WE ARE
UNABLE TO INFER FROM THESE SIMULTANEOUS ACTIONS OF THE ELECTORATE ANY
PARTICULAR ATTITUDE TOWARD MULTIMEMBER DISTRICTS.  IT SIMPLY APPEARS
THAT NORTH DAKOTA'S VOTERS HAVE NOT BEEN SATISFIED WITH ANY
REAPPORTIONMENT PROPOSAL, AND THAT THEY ARE FRUSTRATED BY THE YEARS OF
CONFUSION SINCE THE OBVIOUSLY IMPERMISSIBLE APPORTIONMENT PROVISIONS OF
THE STATE'S CONSTITUTION WERE INVALIDATED. 

WE ARE CONFIDENT THAT THE DISTRICT COURT, WITH PERHAPS THE AID OF
ITS SPECIAL MASTERS, WILL BE ABLE TO REINSTITUTE THE USE OF SINGLE
MEMBER DISTRICTS WHILE ALSO ATTAINING THE NECESSARY GOAL OF SUBSTANTIAL
POPULATION EQUALITY.  SPECIAL MASTER OSTENSON HAD INDICATED THAT IT
"'WOULD NOT BE TERRIBLY DIFFICULT TO ADOPT SINGLE-MEMBER DISTRICTS.'" 
SEE 372 F.SUPP.,AT 392.  /15/ UNLESS THE DISTRICT COURT CAN ARTICULATE
SUCH A "SINGULAR COMBINATION OF UNIQUE FACTORS" AS WAS FOUND TO EXIST
IN MAHAN V. HOWELL, 410 U.S.,AT 333, OR UNLESS THE 1975 LEGISLATIVE
ASSEMBLY APPROPRIATELY ACTS, THE COURT SHOULD PROCEED EXPEDITIOUSLY TO
REINSTATE SINGLE-MEMBER SENATE DISTRICTS IN NORTH DAKOTA. 

VI

        THE POPULATION VARIANCE 

THE SECOND ASPECT OF THE COURT-ORDERED REAPPORTIONMENT PLAN THAT IS
CHALLENGED BY THE APPELLANTS IS THE POPULATION DIVERGENCE IN THE
VARIOUS SENATE DISTRICTS.  SINCE THE POPULATION OF THE STATE UNDER THE
1970 CENSUS WAS 617,761, AND THE NUMBER OF SENATORS PROVIDED FOR BY THE
COURT'S PLAN WAS 51, EACH SENATE DISTRICT WOULD CONTAIN 12,112 PERSONS
IF POPULATION EQUALITY WERE ACHIEVED.  IN FACT, HOWEVER, ONE DISTRICT
UNDER THE PLAN HAS 13,176 PERSONS, AND THUS IS UNDERREPRESENTED BY
8.71%, WHILE ANOTHER DISTRICT HAS 10,728 PERSONS, AND IS
OVERREPRESENTED BY 11.43%.  THE TOTAL VARIANCE BETWEEN THE LARGEST AND
SMALLEST DISTRICTS CONSEQUENTLY IS 20.14%, AND THE RATIO OF THE
POPULATION OF THE LARGEST TO THE SMALLEST IS 1.23 TO 1. 

REYNOLDS V. SIMS, SUPRA, ESTABLISHED THAT BOTH HOUSES OF A STATE
LEGISLATURE MUST BE APPORTIONED SO THAT DISTRICTS ARE "AS NEARLY OF
EQUAL POPULATION AS IS PRACTABLE."  377 U.S.,AT 577.  WHILE "(M)
ATHEMATICAL EXACTNESS OR PRECISION" IS NOT REQUIRED, THERE MUST BE
SUBSTANTIAL COMPLIANCE WITH THE GOAL OF POPULATION EQUIALITY.  IBID.
REYNOLDS V. SIMS, OF COURSE, INVOLVED GROSS POPULATION DISPARITY AMONG
DISTRICTS. 

SINCE REYNOLDS, WE HAVE HAD THE OPPORTUNITY TO OBSERVE ATTEMPTS IN
MANY STATE LEGISLATIVE REAPPORTIONMENT PLANS TO ACHIEVE THE GOAL OF
POPULATION EQUALITY.  ALTHOUGH EACH CASE MUST BE EVALUATED ON ITS OWN
FACTS, AND A PARTICULAR POPULATION DEVIATION FROM THE IDEAL MAY BE
PERMISSIBLY IN SOME CASES BUT NOT IN OTHERS, SWANN V. ADAMS, 385 U.S.
440, 445 (1967), CERTAIN GUIDELINES HAVE BEEN DEVELOPED FOR DETERMINING
COMPLIANCE WITH THE BASIC GOAL OF ONE PERSON, ONE VOTE.  IN SWANN WE
HELD THAT A VARIANCE OF 25.65% IN ONE HOUSE AND 33.55% IN THE OTHER WAS
IMPERMISSIBLE ABSENT "A SATISFACTORY EXPLANATION GROUNDED ON ACCEPTABLE
STATE POLICY."  ID., AT 444.  SEE ALSO KILGARLIN V. HILL, 386 U.S.,AT
123 - 124.  IN SWANN, NO JUSTIFICATION OF THE DIVERGENCES HAD BEEN
ATTEMPTED.  POSSIBLE JUSTIFICATIONS, EACH REQUIRING ADEQUATE PROOF,
WERE SUGGESTED BY THE COURT.  AMONG THESE WERE "SUCH STATE POLICY
CONSIDERATIONS AS THE INTEGRITY OF POLITICAL SUBDIVISIONS, THE
MAINTENANCE OF COMPACTNESS AND CONTIGUITY IN LEGISLATIVE DISTRICTS OR
THE RECOGNITION OF NATURAL OR HISTORICAL BOUNDARY LINES."  SWANN, 385
U.S.,AT 444.  SEE ALSO REYNOLDS V. SIMS, 377 U.S.,AT 578 - 581. 

ON THE OTHER HAND, WE HAVE ACKNOWLEDGED THAT SOME LEEWAY IN THE
EQUAL-POPULATION REQUIREMENT SHOULD BE AFFORDED STATES IN DEVISING
THEIR LEGISLATIVE REAPPORTIONMENT PLANS.  AS CONTRASTED WITH
CONGRESSIONAL DISTRICTING, WHERE POPULATION EQUALITY APPEARS NOW TO BE
THE PRE-EMINENT, IF NOT THE SOLE, CRITERION ON WHICH TO ADJUDGE
CONSTITUTIONALITY, WESBERRY V. SANDERS, 376 U.S. 1 (1964); KIRKPATRICK
V. PREISLER, 394 U.S. 526 (1969); WELLS V. ROCKEFELLER, 394 U.S. 542
(1969); WHITE V. WEISER, 412 U.S. 783 (1973), WHEN STATE LEGISLATIVE
DISTRICTS ARE AT ISSUE WE HAVE HELD THAT MINOR POPULATION DEVIATIONS DO
NOT ESTABLISH A PRIMA FACIE CONSTITUTIONAL VIOLATION.  FOR EXAMPLE, IN
GAFFNEY V. CUMMINGS, 412 U.S. 735 (1973), WE PERMITTED A DEVIATION OF
7.83% WITH NO SHOWING OF INVIDIOUS DISCRIMINATION.  IN WHITE V.
REGESTER, SUPRA, A VARIATION OF 9.9% WAS LIKEWISE PERMITTED. 

THE TREATMENT OF THE REAPPORTIONMENT PLAN IN MAHAN V. HOWELL, SUPRA,
IS ILLUSTRATIVE OF OUR APPROACH IN THIS AREA.  THERE THE VIRGINIA
LEGISLATURE HAD FASHIONED A PLAN PROVIDING A TOTAL POPULATION VARIANCE
OF 16.4% AMONG HOUSE DISTRICTS.  THIS DISPARITY WAS OF SUFFICIENT
MAGNITUDE TO REQUIRE AN ANALYSIS OF THE STATE POLICIES ASSERTED IN
JUSTIFICATION.  WE FOUND THAT THE DEVIATIONS FROM THE AVERAGE WERE
CAUSED BY THE ATTEMPT OF THE LEGISLATURE TO FULFILL THE RATIONAL STATE
POLICY OF REFRAINING FROM SPLITTING POLITICAL SUBDIVISIONS BETWEEN
HOUSE DISTRICTS, AND WE ACCEPTED THE POLICY AS LEGITIMATE
NOTWITHSTANDING THE FACT THAT SUBDIVISION SPLITS WERE PERMITTED IN
SENATORIAL DISTRICTS.  SINCE THE POPULATION DIVERGENCES IN THE VIRGINIA
PLAN WERE "BASED ON LEGITIMATE CONSIDERATIONS INCIDENT TO THE
EFFECTUATION OF A RATIONAL STATE POLICY," REYNOLDS V. SIMS, 377 U.S.,AT
579, WE HELD THAT THE PLAN MET CONSTITUTIONAL STANDARDS. 

IT IS TO BE OBSERVED THAT THIS MEASURE OF ACCEPTABLE DEVIATION FROM
POPULATION EQUALITY HAS BEEN DEVELOPED IN CASES THAT CONCERNED
APPORTIONMENT PLANS ENACTED BY STATE LEGISLATURES.  IN THE PRESENT
NORTH DAKOTA CASE, HOWEVER, THE 20% VARIANCE IS IN THE PLAN FORMULATED
BY THE FEDERAL COURT.  WE BELIEVE THAT A POPULATION DEVIATION OF THAT
MAGNITUDE IN A COURT-ORDERED PLAN IS CONSTITUTIONALLY IMPERMISSIBLE IN
THE ABSENCE OF SIGNIFICANT STATE POLICIES OR OTHER ACCEPTABLE
CONSIDERATIONS THAT REQUIRE ADOPTION OF A PLAN WITH SO GREAT A
VARIANCE.  THE BURDEN IS ON THE DISTRICT COURT TO ELUCIDATE THE REASONS
NECESSITATING ANY DEPARTURE FROM THE GOAL OF POPULATION EQUALITY, AND
TO ARTICULATE CLEARLY THE RELATIONSHIP BETWEEN THE VARIANCE AND THE
STATE POLICY FURTHERED. 

THE BASIS FOR THE DISTRICT COURT'S ALLOWANCE OF THE 20% VARIANCE IS
CLAIMED TO LIE IN THE ABSENCE OF "ELECTORALLY VICTIMIZED MINORITIES,"
IN THE FACT THAT NORTH DAKOTA IS SPARSELY POPULATED, IN THE DIVISION OF
THE STATE CAUSED BY THE MISSOURI RIVER, AND IN THE GOAL OF OBSERVING
GEOGRAPHICAL BOUNDARIES AND EXISTING POLITICAL SUBDIVISIONS.  WE FIND
NONE OF THESE FACTORS PERSUASIVE HERE, AND NONE OF THEM HAS BEEN
EXPLICITY SHOWN TO NECESSITATE THE SUBSTANTIAL POPULATION DEVIATION
EMBRACED BY THE PLAN. 

FIRST, A VARIANCE OF THIS DEGREE CANNOT BE JUSTIFIED SIMPLY BECAUSE
THERE IS NO PARTICULAR RACIAL OR POLITICAL GROUP WHOSE VOTING POWER IS
MINIMIZED OR CANCELED.  ALL CITIZENS ARE AFFECTED WHEN AN APPORTIONMENT
PLAN PROVIDES DISPROPORTIONATE VOTING STRENGTH, AND CITIZENS IN
DISTRICTS THAT ARE UNDERREPRESENTED LOSE SOMETHING EVEN IF THEY DO NOT
BELONG TO A SPECIFIC MINORITY GROUP. 

SECOND, SPARSE POPULATION IS NOT A LEGITIAMTE BASIS FOR A DEPARTURE
FROM THE GOAL OF EQUALITY.  A STATE WITH A SPARSE POPULATION MAY FACE
PROBLEMS DIFFERENT FROM THOSE FACED BY ONE WITH A CONCENTRATED
POPULATION, BUT THAT, WITHOUT MORE, DOES NOT PERMIT A SUBSTANTIAL
DEVIATION FROM THE AVERAGE.  INDEED, IN A STATE WITH A SMALL
POPULATION, EACH INDIVIDUAL VOTE MAY BE MORE IMPORTANT TO THE RESULT OF
AN ELECTION THAN IN A HIGHLY POPULATED STATE.  THUS, PARTICULAR
EMPHASIS SHOULD BE PLACED ON ESTABLISHING DISTRICTS WITH AS EXACT
POPULATION EQUALITY AS POSSIBLE.  THE DISTRICT COURT'S BARE STATEMENT
THAT NORTH DAKOTA'S SPARSE POPULATION PERMITTED OR PERHAPS CAUSED THE
20% DEVIATION IS INADEQUATE JUSTIFICATION.  /16/ 

THIRD, THE SUGGESTION THAT THE DIVISION OF THE STATE CAUSED BY THE
MISSOURI RIVER AND THE ASSERTED STATE POLICY OF OBSERVING EXISTING
GEOGRAPHICAL AND POLITICAL SUBDIVISION BOUNDARIES WARRANT DEPARTURE
FROM POPULATION EQUALITY IS ALSO NOT PERSUASIVE.  IT IS FAR FROM
APPARENT THAT NORTH DAKOTA POLICY CURRENTLY REQUIRES OR FAVORS STRICT
ADHERENCE TO POLITICAL LINES.  AS THE DISSENTING JUDGE IN THIS CASE
NOTED, APPELLEE'S COUNSEL ACKNOWLEDGED THAT REAPPORTIONMENT PROPOSED BY
THE LEGISLATIVE ASSEMBLY BROKE COUNTY LINES, 372 F.SUPP.,AT 393 N. 22,
AND THE DISTRICT COURT INDICATED AS LONG AS A DECADE AGO THAT THE
LEGISLATURE HAD ABANDONED THE STRICT POLICY.  PAULSON V. MEIER, 246
F.SUPP.,AT 42 - 43.  FURTHERMORE, A PLAN DEVISED BY SPECIAL MASTER
OSTENSON DEMONSTRATES THAT NEITHER THE MISSOURI RIVER NOR THE POLICY OF
MAINTAINING TOWNSHIP LINES PREVENTS ATTAINING A SIGNIFICANTLY LOWER
POPULATION VARIANCE.  /17/ WE DO NOT IMPLY THAT THE OSTENSON PLAN
SHOULD BE ADOPTED BY THE DISTRICT COURT, OR THAT ITS 5.95% POPULATION
VARIANCE NECESSARILY WOULD BE PERMISSIBLE IN A COURT-ORDERED PLAN. 
WHAT WE INTEND BY OUR REFERENCE TO THE OSTENSON PLAN IS TO SHOW THAT
THE FACTORS CITED BY THE DISTRICT COURT CANNOT BE VIEWED AS CONTROLLING
AND PERSUASIVE WHEN OTHER, LESS STATISTICALLY OFFENSIVE, PLANS ALREADY
DEVISED ARE FEASIBLE.  /18/ THE DISTRICT COURT HAS PROVIDED NO
RATIONALE FOR ITS REJECTION OF THE OSTENSON PLAN. 

EXAMINATION OF THE ASSERTED JUSTIFICATIONS OF THE COURT-ORDERED PLAN
THUS PLAINLY DEMONSTRATES THAT IT FAILS TO MEET THE STANDARDS
ESTABLISHED FOR EVALUATING VARIANCES IN PLANS FORMULATED BY STATE
LEGISLATURES OR OTHER STATE BODIES.  THE PLAN, HENCE, WOULD FAIL EVEN
UNDER THE CRITERIA ENUNCIATED IN MAHAN V. HOWELL AND SWANN V. ADAMS.  A
COURT-ORDERED PLAN, HOWEVER, MUST BE HELD TO HIGHER STANDARDS THAN A
STATE'S OWN PLAN.  WITH A COURT PLAN, ANY DEVIATION FROM APPROXIMATE
POPULATION EQUALITY MUST BE SUPPORTED BY ENUNCIATION OF HISTORICALLY
SIGNIFICANT STATE POLICY OR UNIQUE FEATURES.  WE HAVE FELT IT NECESSARY
IN THIS CASE TO CLARIFY THE GREATER RESPONSIBILITY OF THE DISTRICT
COURT, WHEN DEVISING ITS OWN REAPPORTIONMENT PLAN, BECAUSE OF THE
SEVERE PROBLEMS OCCASIONED FOR THE CITIZENS OF NORTH DAKOTA DURING THE
SEVERAL YEARS OF REDISTRICTING CONFUSION. 

    VII 

WE HOLD TODAY THAT UNLESS THERE ARE PERSUASIVE JUSTIFICATIONS, A
COURT-ORDERED REAPPORTIONMENT PLAN OF A STATE LEGISLATURE MUST AVOID
USE OF MULTIMEMBER DISTRICTS, AND, AS WELL, MUST ORDINARILY ACHIEVE THE
GOAL OF POPULATION EQUALITY WITH LITTLE MORE THAN DE MINIMIS
VARIATION.  /19/  WHERE IMPORTANT AND SIGNIFICANT STATE CONSIDERATIONS
RATIONALLY MANDATE DEPARTURE FROM THESE STANDARDS, IT IS THE
REAPPORTIONING COURT'S RESPONSIBILITY TO ARTICULATE PRECISELY WHY A
PLAN OF SINGLE-MEMBER DISTRICTS WITH MINIMAL POPULATION VARIANCE CANNOT
BE ADOPTED. 

WE SAY ONCE AGAIN WHAT HAS BEEN SAID ON MANY OCCASIONS:
REAPPORTIONMENT IS PRIMARILY THE DUTY AND RESPONSIBILITY OF THE STATE
THROUGH ITS LEGISLATURE OR OTHER BODY, RATHER THAN OF A FEDERAL COURT. 
REYNOLDS V. SIMS, 377 U.S.,AT 586; MARYLAND COMMITTEE V. TAWES, 377
U.S.,AT 676.  IT IS TO BE HOPED THAT THE 1975 NORTH DAKOTA LEGISLATIVE
ASSEMBLY WILL PERFORM THAT DUTY AND ENACT A CONSTITUTIONALLY ACCEPTABLE
PLAN.  IF IT FAILS IN THAT TASK, THE RESPONSIBILITY FALLS ON THE
DISTRICT COURT AND IT SHOULD PROCEED WITH DISPATCH TO RESOLVE THIS
SEEMINGLY INTERMINABLE PROBLEM. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED FOR FUTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

                                  IT IS SO ORDERED. 

/1/ PRIOR TO THE 1960 AMENDMENT, 29 READ: 

"THE LEGISLATIVE ASSEMBLY SHALL FIX THE NUMBER OF SENATORS, AND DIVIDE
THE STATE INTO AS MANY SENATORIAL DISTRICTS AS THERE ARE SENATORS,
WHICH DISTRICTS, AS NEARLY AS MAY BE, SHALL BE EQUAL TO EACH OTHER IN
THE NUMBER OF INHABITANTS ENTITLED TO REPRESENTATION.  EACH DISTRICT
SHALL BE ENTITLED TO ONE SENATOR AND NO MORE, AND SHALL BE COMPOSED OF
COMPACT AND CONTIGUOUS TERRITORY; AND NO PORTION OF ANY COUNTY SHALL BE
ATTACHED TO ANY OTHER COUNTY, OR PART THEREOF, SO AS TO FORM A
DISTRICT.  THE DISTRICTS AS THUS ASCERTAINED AND DETERMINED SHALL
CONTINUE UNTIL CHANGED BY LAW." 

/2/ SECTION 35 READS IN FULL AS FOLLOWS: 

"EACH SENATORIAL DISTRICT SHALL BE REPRESENTED IN THE HOUSE OF
REPRESENTATIVES BY AT LEAST ONE REPRESENTATIVE EXCEPT THAT ANY
SENATORIAL DISTRICT COMPRISED OF MORE THAN ONE COUNTY SHALL BE
REPRESENTED IN THE HOUSE OF REPRESENTATIVES BY AT LEAST AS MANY
REPRESENTATIVES AS THERE ARE COUNTIES IN SUCH SENATORIAL DISTRICT.  IN
ADDITION THE LEGISLATIVE ASSEMBLY SHALL, AT THE FIRST REGULAR SESSION
AFTER EACH FEDERAL DECENNIAL CENSUS, PROCEED TO APPORTION THE BALANCE
OF THE MEMBERS OF THE HOUSE OF REPRESENTATIVES TO BE ELECTED FROM THE
SEVERAL SENATORIAL DISTRICTS, WITHIN THE LIMITS PRESCRIBED BY THIS
CONSTITUTION, ACCORDING TO THE POPULATION OF THE SEVERAL SENATORIAL
DISTRICTS.  IF ANY LEGISLATIVE ASSEMBLY WHOSE DUTY IT IS TO MAKE AN
APPORTIONMENT SHALL FAIL TO MAKE THE SAME AS HEREIN PROVIDED IT SHALL
BE THE DUTY OF THE CHIEF JUSTICE OF THE SUPREME COURT, ATTORNEY
GENERAL, SECRETARY OF STATE, AND THE MAJORITY AND MINORITY LEADERS OF
THE HOUSE OF REPRESENTATIVES WITHIN NINETY DAYS AFTER THE ADJOURNMENT
OF THE LEGISLATURE TO MAKE SUCH APPORTIONMENT AND WHEN SO MADE A
PROCLAMATION SHALL BE ISSUED BY THE CHIEF JUSTICE ANNOUNCING SUCH
APPORTIONMENT WHICH SHALL HAVE THE SAME FORCE AND EFFECT AS THOUGH MADE
BY THE LEGISLATIVE ASSEMBLY."     PRIOR TO THE 1960 AMENDMENT, 35
CALLED FOR THE LEGISLATIVE ASSEMBLY (SEEMINGLY AT LEAST EVERY 10 YEARS)
"TO FIX BY LAW" THE NUMBER OF SENATORS AND THE NUMBER OF
REPRESENTATIVES "WITHIN THE LIMITS PRESCRIBED BY THIS CONSTITUTION" AND
TO "PROCEED TO REAPPORTION THE STATE INTO SENATORIAL DISTRICTS AS
PRESCRIBED BY THIS CONSTITUTION, AND TO FIX THE NUMBER OF MEMBERS OF
THE HOUSE OF REPRESENTATIVES TO BE ELECTED FROM THE SEVERAL SENATORIAL
DISTRICTS," WITH THE PROVISO THAT AT ANY REGULAR SESSION "THE
LEGISLATIVE ASSEMBLY MAY . . . REDISTRICT THE STATE INTO SENATORIAL
DISTRICTS, AND APPORTION THE SENATORS AND REPRESENTATIVES
RESPECTIVELY." 

/3/ THIS FEATURE WAS LATER DESCRIBED AS "A RADICAL DEPARTURE FROM
STATE PRECEDENT."  CHAPMAN V. MEIER, 372 F.SUPP.  371, 382 (ND 1974)
(DISSENTING OPINION). 

/4/ CF. MINNESOTA STATE SENATE V. BEENS, 406 U.S. 187 (1972). 

/5/ THE GOVERNOR'S PRINCIPAL OBJECTION, AS ANNOUNCED IN HIS VETO
MESSAGE, WAS THE FAILURE OF THE LEGISLATIVE ASSEMBLY TO ELIMINATE THE
MULTIMEMBER SENATORIAL DISTRICTS.  RETURN TO AND COMPLIANCE WITH ORDER,
FILED MARCH 30, 1973. 

/6/ 28 U.S.C. 1253: 

"EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO THE
SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION,
SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

/7/ 28 U.S.C. 2281: 

"AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE
ENFORCEMENT, OPERATION OR EXECUTION OF ANY STATE STATUTE BY RESTRAINING
THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION
OF SUCH STATUTE . . . SHALL NOT BE GRANTED BY ANY DISTRICT COURT OR
JUDGE THEREOF UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH
STATUTE UNLESS THE APPLICATION THEREOF IS HEARD AND DETERMINED BY A
DISTRICT COURT OF THREE JUDGES UNDER SECTION 2284 OF THIS TITLE." 

/8/ INDEED, AT ORAL ARGUMENT, THE APPELLANTS DID NOT OPPOSE THE
ALLOCATION OF TWO HOUSE MEMBERS TO EACH SENATORIAL DISTRICT.  TR. OF
ORAL ARG. 16 - 17. 

/9/ CF., HOWEVER, FORTSON V. DORSEY, 379 U.S. 433, 438 (1965), FOR
THE SUGGESTION THAT THE AT-LARGE REPRESENTATIVE SERVES ALL RESIDENTS IN
THE SUBDISTRICTS.  FURTHERMORE, WHILE WE MENTIONED THESE POTENTIAL
WEAKNESSES OF MULTIMEMBER DISTRICTS IN LUCAS V. COLORADO GENERAL
ASSEMBLY, 377 U.S. 713, 731 N. 21 (1964), WE NOTED THAT WE "DO NOT
INTIMATE THAT APPORTIONMENT SCHEMES WHICH PROVIDE FOR THE AT-LARGE
ELECTION OF A NUMBER OF LEGISLATORS FROM A COUNTY, OR ANY POLITICAL
SUBDIVISION, ARE CONSTITUTIONALLY DEFECTIVE.  RATHER, WE MERELY POINT
OUT THAT THERE ARE CERTAIN ASPECTS . . . THAT MIGHT WELL MAKE THE
ADOPTION OF SUCH A SCHEME UNDESIRABLE TO MANY VOTERS RESIDING IN
MULTIMEMBER COUNTIES." 

/10/ IN WHITCOMBE V. CHAVIS, 403 U.S. 124, 158 - 159 (1971), WE
ACKNOWLEDGED THAT 

"(CRITICISM (OF MULTIMEMBER DISTRICTS) IS ROOTED IN THEIR WINNER
TAKE-ALL ASPECTS, THEIR TENDENCY TO SUBMERGE MINORITIES AND TO
OVERREPRESENT THE WINNING PARTY AS COMPARED WITH THE PARTY'S STATEWIDE
ELECTORIAL POSITION, A GENERAL PREFERENCE FOR LEGISLATURES REFLECTING
COMMUNITY INTERESTS AS CLOSELY AS POSSIBLE AND DISENCHANTMENT WITH
POLITICAL PARTIES AND ELECTIONS AS DEVICES TO SETTLE POLICY DIFFERENCES
BETWEEN CONTENDING INTERESTS." 

SUCH CRITICISM DID NOT AMOUNT TO A SHOWING THAT THE USE OF
MULTIMEMBER DISTRICTS WAS "INHERENTLY INVIDIOUS" OR VIOLATIVE OF THE
FOURTEENTH AMENDMENT.  ID., AT 160. 

/11/ THESE FACTORS HAVE BEEN CRITICIZED AS NOT BEING PARTICULARLY
HELPFUL.  SEE CARPENETI, LEGISLATIVE APPORTIONMENT:  MULTIMEMBER
DISTRICTS AND FAIR REPRESENTATION, 120 U.PA.L.REV.  666, 694 - 695
(1972). 

/12/ IN MAHAN V. HOWELL, 410 U.S. 315, 333 (1973), WE STATED THAT
THE DISTRICT COURT 

"WAS CONFRONTED WITH PLAUSIBLE EVIDENCE OF SUBSTANTIAL
MALAPPORTIONMENT WITH RESPECT TO MILITARY PERSONNEL, THE MANDATE OF
THIS COURT THAT VOTING DISCRIMINATION AGAINST MILITARY PERSONNEL IS
CONSTITUTIONALLY IMPERMISSIBLE, DAVIS V. MANN, (377 U.S. 678), 691 -
692 ((1964)), AND THE FEAR THAT TOO MUCH DELAY WOULD HAVE SERIOUSLY
DISRUPTED THE FALL 1971 ELECTIONS.  FACING AS IT DID THIS SINGULAR
COMBINATION OF UNIQUE FACTORS, WE CANNOT SAY THAT THE DISTRICT COURT
ABUSED ITS DISCRETION IN FASHIONING THE INTERIM REMEDY OF COMBINING THE
THREE DISTRICTS INTO ONE MULTIMEMBER DISTRICT." 

NORTH DAKOTA, TOO, HAS ITS MILITARY PERSONNEL APPORTIONMENT PROBLEM
WITH RESPECT TO THE BASES NEAR GRAND FORKS AND MINOT.  THE APPELLANTS
RECOGNIZE THE EXISTENCE OF THAT PROBLEM AND ACKNOWLEDGE THAT,
CONCEIVABLY, IT COULD RESULT IN SOME TYPE OF MULTIMEMBER DISTRICTING. 
TR. OF ORAL ARG. 10. 

/13/ THE ONLY MINORITY GROUP OF SIGNIFICANT SIZE IN NORTH DAKOTA ARE
INDIANS, AND THE COURT-ORDERED REAPPORTIONMENT PLAN AFFECTS THEM NO
DIFFERENTLY FROM ANY OTHER GROUP. 

/14/ FOR AN EXAMPLE OF A CONCEIVABLE RATIONALE SUPPORTING
MULTIMEMBER DISTRICTS, SEE CARPENETI, SUPRA, N. 11, AT 695 - 696, WHERE
IT IS SUGGESTED THAT MULTIMEMBER DISTRICTS MAY INSURE THAT CERTAIN
INTERESTS SUCH AS CITY- OR REGION-WIDE VIEWS ARE REPRESENTED. 

/15/ SEE ALSO THE VIEWS OF THE LATE SPECIAL MASTER SMITH, 372
F.SUPP.,AT 392. 

/16/ AS EARLY AS REYNOLDS V. SIMS, 377 U.S. 533 (1964), THE COURT
INDICATED THAT SUGGESTIONS THAT POPULATION DEVIATION WAS NECESSARY "TO
INSURE EFFECTIVE REPRESENTATION FOR SPARSELY SETTLED AREAS AND TO
PREVENT LEGISLATIVE DISTRICTS FROM BECOMING SO LARGE (GEOGRAPHICALLY)
THAT THE AVAILABILITY OF ACCESS OF CITIZENS TO THEIR REPRESENTATIVES IS
IMPAIRED" WERE UNCONVINCING.  ID., AT 580. 

/17/ SEE APPENDIX B TO MEMORANDUM OPINION AND ORDER OF JUNE 30,
1972, BY JUDGES BRIGHT AND VAN SICKLE (THE OSTENSON PLAN), APP. 12 -
22.  THE OSTENSON PLAN WOULD ALLOW A TOTAL POPULATION DEVIATION OF ONLY
5.95%. 

/18/ ANOTHER PLAN APPEARING TO BE MORE ACCEPTABLE WITH RESPECT TO
POPULATION VARIANCE THAN THAT ADOPTED BY THE DISTRICT COURT IS THE ONE
SUGGESTED BY THE STATE'S SPECIAL COMMITTEE ON REAPPORTIONMENT, REFERRED
TO IN JUDGE BRIGHT'S DISSENTING OPINION, 372 F.SUPP.,AT 394 N. 23. 

/19/ THIS IS NOT TO SAY, HOWEVER, THAT COURT-ORDERED REAPPORTIONMENT
OF A STATE LEGISLATURE MUST ATTAIN THE MATHEMATICAL PRECISENESS
REQUIRED FOR CONGRESSIONAL REDISTRICTING UNDER WESBERRY V. SANDERS, 376
U.S. 1 (1964); KIRKPATRICK V. PREISLER, 394 U.S. 526 (1969); WELLS V.
ROCKEFELLER, 394 U.S. 542 (1969); AND WHITE V. WEISER, 412 U.S. 783
(1973). 

JOHN D. KELLY ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANTS. 

PAUL M. SAND, FIRST ASSISTANT ATTORNEY GENERAL OF NORTH DAKOTA,
ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WAS ALLEN I.
OLSON, ATTORNEY GENERAL. 
..END :












TEST V. UNITED STATES, 420 U.S. 28 


       TEST V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 73 - 5903.  ARGUED DECEMBER 11, 1974--DECIDED JANUARY

           27, 1975; 486 F.2D 922, VACATED AND REMANDED. 


    AN UNQUALIFIED RIGHT OF A LITIGANT TO INSPECT JURY LISTS IS

  REQUIRED NOT ONLY BY THE PLAIN TEXT OF THE PROVISIONS OF THE JURY

  SELECTION AND SERVICE ACT OF 1968, 28 U.S.C. 1867(F), ALLOWING

  THE PARTIES IN A CASE "TO INSPECT" SUCH LISTS AT ALL REASONABLE

  TIMES DURING THE "PREPARATION" OF A MOTION CHALLENGING COMPLIANCE

  WITH JURY-SELECTION PROCEDURES, BUT ALSO BY THE ACT'S OVERALL

  PURPOSE OF INSURING "GRAND AND PETIT JURIES SELECTED AT RANDOM

  FROM A FAIR CROSS SECTION OF THE COMMUNITY," 28 U.S.C. 1861. 

 HENCE, WHERE THE DISTRICT COURT DENIED PETITIONER'S MOTION, PRIOR

  TO HIS TRIAL AND CONVICTION ON A FEDERAL DRUG CHARGE, TO INSPECT

  THE JURY LISTS IN CONNECTION WITH HIS CHALLENGE TO THE GRAND AND

  PETIT JURIES-SELECTION PROCEDURES, THE COURT OF APPEALS' JUDGMENT

  AFFIRMING HIS CONVICTION IS VACATED, AND THE CASE IS REMANDED SO

  THAT HE MAY ATTEMPT TO SUPPORT HIS CHALLENGE. 

PER CURIAM. 

PETITIONER WAS CONVICTED UNDER 21 U.S.C. 841(A)(1) FOR DISTRIBUTION
OF A HALLUCINOGENIC DRUG COMMONLY KNOWN AS LSD.  PRIOR TO TRIAL HE
FILED A MOTION TO DISMISS HIS INDICTMENT CLAIMING THAT THE MASTER LISTS
/1/ FROM WHICH HIS GRAND JURY HAD BEEN, AND PETIT JURY WOULD BE,
SELECTED SYSTEMATICALLY EXCLUDED DISPROPORTIONATE NUMBERS OF PEOPLE
WITH SPANISH SURNAMES, STUDENTS, AND BLACKS.  THESE EXCLUSIONS,
PETITIONER ALLEGED, VIOLATED BOTH HIS SIXTH AMENDMENT RIGHT TO AN
IMPARTIAL JURY AND THE PROVISIONS OF THE JURY SELECTION AND SERVICE ACT
OF 1968, 28 U.S.C. 1861 ET SEQ.  ATTACHED TO THIS MOTION WAS AN
AFFIDAVIT BY PETITIONER'S COUNSEL STATING FACTS THAT HAD BEEN DISCLOSED
BY TESTIMONY AT A JURY CHALLENGE IN ANOTHER CASE, AND UHICH PETITIONER
CLAIMED SUPPORTED HIS CHALLENGE.  ALSO ACCOMPANYING THE MOTION WAS
ANOTHER MOTION REQUESTING PERMISSION TO INSPECT AND COPY THE JURY LISTS
"PERTAINING TO THE GRAND AND PETIT JURIES IN THE INSTANT INDICTMENT." 
PETITIONER ASSERTED THAT INSPECTION WAS NECESSARY FOR DISCOVERING
EVIDENCE TO BUTTRESS HIS CLAIMS. 

THE DISTRICT COURT REJECTED THE JURY CHALLENGE AND DENIED THE MOTION
TO INSPECT THE LISTS.  PETITIONER RENEWED HIS CLAIMS BEFORE THE COURT
OF APPEALS FOR THE TENTH CIRCUIT, BUT THAT COURT AFFIRMED HIS
CONVICTION WITHOUT DISCUSSING THESE ISSUES.  WE GRANTED CERTIORARI TO
DECIDE WHETHER THE JURY SELECTION AND SERVICE ACT REQUIRED THAT
PETITIONER BE PERMITTED TO INSPECT THE JURY LISTS. 

IN ITS BRIEF AND ORAL ARGUMENT BEFORE THIS COURT, THE UNITED STATES
HAS AGREED THAT PETITIONER WAS ERRONEOUSLY DENIED ACCESS TO THE LISTS
AND URGES US TO REMAND THE CASE.  WE ALSO AGREE WITH PETITIONER.  /2/

     "THE CONTENTS OF RECORDS OR PAPERS USED BY THE JURY COMMISSION

  OR CLERK IN CONNECTION WITH THE JURY SELECTION PROCESS SHALL NOT

BE DISCLOSED, EXCEPT . . . AS MAY BE NECESSARY IN THE PREPARATION

  OR PRESENTATION OF A MOTION (CHALLENGING COMPLIANCE WITH

  SELECTION PROCEDURES) UNDER . . . THIS SECTION . . . . THE

  PARTIES IN A CASE SHALL BE ALLOWED TO INSPECT, REPRODUCE, AND

  COPY SUCH RECORDS OR PAPERS AT ALL REASONABLE TIMES DURING THE

  PREPARATION AND PENDENCY OF SUCH A MOTION.  . . ."  (EMPHASIS

  SUPPLIED.) 

THIS PROVISION MAKES CLEAR THAT A LITIGANT /3/ HAS ESSENTIALLY AN
UNQUALIFIED RIGHT TO INSPECT JURY LISTS.  /4/ IT GRANTS ACCESS IN ORDER
TO AID PARTIES IN THE "PREPARATION" OF MOTIONS CHALLENGING JURY
SELECTION PROCEDURES.  INDEED, WITHOUT INSPECTION, A PARTY ALMOST
INVARIABLY WOULD BE UNABLE TO DETERMINE WHETHER HE HAS A POTENTIALLY
MERITORIOUS JURY CHALLENGE.  THUS, AN UNQUALIFIED RIGHT TO INSPECTION
IS REQUIRED NOT ONLY BY THE PLAIN TEXT OF THE STATUTE, BUT ALSO BY THE
STATUTE'S OVERALL PURPOSE OF INSURING "GRAND AND PETIT JURIES SELECTED
AT RANDOM FROM A FAIR CROSS SECTION OF THE COMMUNITY."  28 U.S.C.
1861. 

SINCE PETITIONER WAS DENIED AN OPPORTUNITY TO INSPECT THE JURY
LISTS, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE
CASE TO THAT COURT WITH INSTRUCTIONS TO REMAND TO THE DISTRICT COURT SO
THAT PETITIONER MAY ATTEMPT TO SUPPORT HIS CHALLENGE TO THE JURY
SELECTION PROCEDURES.  WE EXPRESS NO VIEWS ON THE MERITS OF THAT
CHALLENGE. 

                                  IT IS SO ORDERED. 

/1/ THESE LISTS WERE BASED ON COLORADO VOTER-REGISTRATION RECORDS. 

/2/ PETITIONER FURTHER ARGUES THAT THE AFFIDAVIT ACCOMPANYING HIS
MOTION TO INSPECT ESTABLISHED A PRIMA FACIE CASE OF JURY EXCLUSION
THEREBY ENTITLING HIM TO INSPECTION UNDER 28 U.S.C. 1867(D).  SINCE WE
CONCLUDE THAT PETITIONER HAD AN UNQUALIFIED RIGHT TO INSPECTION UNDER
1867(D) WE DO NOT DECIDE WHETHER HIS COUNSEL'S AFFIDAVIT WAS SUFFICIENT
TO ESTABLISH A PRIMA FACIE CASE. 

/3/ THE STATUTE GRANTS THE RIGHTS TO CHALLENGE SELECTION PROCEDURES
AND INSPECT LISTS TO THE UNITED STATES AND THE DEFENDANT IN A CRIMINAL
CASE, AND TO ANY PARTY IN A CIVIL CASE. 

/4/ THE STATUTE DOES LIMIT INSPECTION TO "REASONABLE TIMES."  NO
ISSUE OF TIMELINESS HAS BEEN RAISED IN THIS COURT. 

WALTER L. GERASH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS LOUIS M. FISCHER. 

WILLIAM L. PATTON ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
POTTINGER, AND DEPUTY SOLICITOR GENERAL WALLACE. 

SANFORD JAY ROSEN FILED A BRIEF FOR THE MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND AS AMICUS CURIAE. 
..END :





DANIEL V. LOUISIANNA, 420 U.S. 31 


       DANIEL V. LOUISIANNA

        ON APPEAL FROM THE SUPREME COURT OF LOUISIANA

        NO. 74 - 5369.  DECIDED JANUARY 27, 1975; 297 SO.2D 417,

           AFFIRMED. 


    THE DECISION IN TAYLOR V. LOUISIANA, 419 U.S. 522, WHEREIN IT

  WAS HELD THAT THE SIXTH AND FOURTEENTH AMENDMENTS REQUIRE PETIT

  JURIES TO BE SELECTED FROM A SOURCE FAIRLY REPRESENTATIVE OF THE

  COMMUNITY AND THAT SUCH REQUIREMENT IS VIOLATED BY THE SYSTEMATIC

  EXCLUSION OF WOMEN FROM JURY PANELS, IS NOT TO BE APPLIED

  RETROACTIVELY, AS A MATTER OF FEDERAL LAW, TO CONVICTIONS

  OBTAINED BY JURIES EMPANELED PRIOR TO THE DATE OF THAT DECISION. 

  DESTEFANO V. WOODS, 392 U.S. 631. 

PER CURIAM. 

APPELLANT DANIEL WAS TRIED BEFORE A JURY OF THE TWENTY-SECOND
JUDICIAL DISTRICT COURT OF LOUISIANA AND CONVICTED OF ARMED ROBBERY ON
NOVEMBER 20, 1973.  THE JURY THAT TRIED APPELLANT WAS SELECTED FROM A
VENIRE CHOSEN IN ACCORDANCE WITH THE PROCEDURES THEN PROVIDED FOR IN
LA. CONST., ART. VII, 41, AND LA. CODE CRIM. PROC., ART. 402. 
APPELLANT RAISED A TIMELY MOTION TO QUASH THE PETIT JURY VENIRE,
CONTENDING THAT THESE PROCEDURES VIOLATED THE FOURTEENTH AMENDMENT
BECAUSE THEY RESULTED IN THE SYSTEMATIC EXCLUSION OF WOMEN FROM THE
PETIT JURY VENIRE FROM WHICH HIS JURY WAS CHOSEN.  HIS MOTION TO QUASH
WAS DENIED AND THIS DENIAL WAS AFFIRMED ON APPEAL TO THE LOUISIANA
SUPREME COURT.  297 SO.2D 417 (1974). 

IN TAYLOR V. LOUISIANA, 419 U.S. 522 (1975), WE HELD THAT THE SIXTH
AND FOURTEENTH AMENDMENTS COMMAND THAT PETIT JURIES MUST BE SELECTED
FROM A SOURCE FAIRLY REPRESENTATIVE OF THE COMMUNITY.  IN THIS CASE, IT
IS NOT DISPUTED THAT THE JURY VENIRE FROM WHICH APPELLANT'S PETIT JURY
WAS CHOSEN DID NOT CONSTITUTE A FAIR CROSS SECTION OF THE COMMUNITY. 
THE QUESTION IS WHETHER OUR DECISION IN TAYLOR V. LOUISIANA IS TO BE
APPLIED RETROACTIVELY TO OTHER DEFENDANTS WHOSE OPPORTUNITY TO RAISE A
TIMELY OBJECTION TO THE JURY-SELECTION PROCEDURES HAD PASSED AS OF THE
DATE OF OUR DECISION IN TAYLOR.  WE HOLD THAT TAYLOR IS NOT TO BE
APPLIED RETROACTIVELY, AS A MATTER OF FEDERAL LAW, TO CONVICTIONS
OBTAINED BY JURIES EMPANELED PRIOR TO THE DATE OF THAT DECISION. 

AS WE STATED IN TAYLOR V. LOUISIANA, SUPRA, "UNTIL TODAY NO CASE HAD
SQUARELY HELD THAT THE EXCLUSION OF WOMEN FROM JURY VENIRES DEPRIVES A
CRIMINAL DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO TRIAL BY AN
IMPARTIAL JURY DRAWN FROM A FAIR SECTION OF THE COMMUNITY."  GIVEN THIS
STATEMENT, AS WELL AS THE DOCTRINAL UNDERPINNINGS OF THE DECISION IN
TAYLOR, THE QUESTION OF THE RETROACTIVE APPLICATION OF TAYLOR IS
CLEARLY CONTROLLED BY OUR DECISION IN DESTEFANO V. WOODS, 392 U.S. 631
(1968), WHERE WE HELD DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), TO BE
APPLICABLE ONLY PROSPECTIVELY.  THE THREE RELEVANT FACTORS, AS
IDENTIFIED IN STOVALL V. DENNO, 388 U.S. 293, 297, ARE 

"(A) THE PURPOSE TO BE SERVED BY THE NEW STANDARDS, (B) THE EXTENT
OF THE RELIANCE BY LAW ENFORCEMENT AUTHORITIES ON THE OLD STANDARDS,
AND (C) THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A RETROACTIVE
APPLICATION OF THE NEW STANDARDS."  IN TAYLOR, AS IN DUNCAN, WE WERE
CONCERNED GENERALLY WITH THE FUNCTION PLAYED BY THE JURY IN OUR SYSTEM
OF CRIMINAL JUSTICE, MORE SPECIFICALLY THE FUNCTION OF PREVENTING
ARBITRARINESS AND REPRESSION.  IN TAYLOR, AS IN DUNCAN, OUR DECISION
DID NOT REST ON THE PREMISE THAT EVERY CRIMINAL TRIAL, OR ANY
PARTICULAR TRIAL, WAS NECESSARILY UNFAIR BECAUSE IT WAS NOT CONDUCTED
IN ACCORDANCE WITH WHAT WE DETERMINED TO BE THE REQUIREMENTS OF THE
SIXTH AMENDMENT.  IN TAYLOR, AS IN DUNCAN, THE RELIANCE OF LAW
ENFORCEMENT OFFICIALS AND STATE LEGISLATURES ON PRIOR DECISIONS OF THIS
COURT, SUCH AS HOYT V. FLORIDA, 368 U.S. 57 (1961), IN STRUCTURING
THEIR CRIMINAL JUSTICE SYSTEMS IS CLEAR.  HERE, AS IN DUNCAN, THE
REQUIREMENT OF RETRYING A SIGNIFICANT NUMBER OF PERSONS WERE TAYLOR TO
BE HELD RETROACTIVE WOULD DO LITTLE, IF ANYTHING, TO VINDICATE THE
SIXTH AMENDMENT INTEREST AT STAKE AND WOULD HAVE A SUBSTANTIAL IMPACT
ON THE ADMINISTRATION OF CRIMINAL JUSTICE IN LOUISIANA AND IN OTHER
STATES WHOSE PAST PROCEDURES HAVE NOT PRODUCED JURY VENIRES THAT
COMPORT WITH THE REQUIREMENT ENUNCIATED IN TAYLOR. 

THE JUDGMENT IS AFFIRMED. 

                                  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE DECISION IN TAYLOR V. LOUISIANA WAS APPLIED RETROACTIVELY TO THE
TRIAL AND CONVICTION IN THAT CASE, NOT PROSPECTIVELY.  I SEE NO
EQUITIES THAT PERMIT RETROACTIVITY OF THE NEW RULING IN TAYLOR AND THAT
DISALLOW IT HERE.  MY VIEW HAS BEEN THAT WE SHOULD MAKE OUR
CONSTITUTIONAL RULING RETROACTIVE IN ALL CASES IF WE MAKE IT
RETROACTIVE IN ONE.  WE CAN NEVER KNOW WHAT DIFFERENCES, IF ANY, WOULD
HAVE RESULTED IF A TRIAL HAD BEEN HELD PURSUANT TO CONSTITUTIONAL
STANDARDS OF PROCEDURAL DUE PROCESS.  I HAVE RECORDED MY DISSENTS IN
OTHER LIKE SITUATIONS, E.G., STOVALL V. DENNO, 388 U.S. 293, 302 - 303;
LINKLETTER V. WALKER, 381 U.S. 618, 640; JOHNSON V. NEW JERSEY, 384
U.S. 719, 736; WHISMAN V. GEORGIA, 384 U.S. 895.  /1/ WHEN MIRANDA V.
ARIZONA, 384 U.S. 436, WAS DECIDED WE APPLIED ITS RULING TO THREE OTHER
CASES IN WHICH WE ALSO GRANTED CERTIORARI, ID., AT 499.  WE HAD HELD 40
ADDITIONAL CASES RAISING THE SAME POINT; AND WHEN MIRANDA WAS DECIDED
WE DENIED CERTIORARI IN EACH OF THEM, 384 U.S. 1020 - 1025.  I
DISSENTED FROM THESE DENIALS SAYING: 

"MR. JUSTICE DOUGLAS IS OF THE OPINION THAT CERTIORARI SHOULD
GRANTED IN THESE CASES AND THE JUDGMENTS BELOW REVERSED.  HE WOULD
REMAND THE CASES FOR A NEW TRIAL, IT BEING CLEAR FROM THE RECORDS THAT
THE PRINCIPLES ANNOUNCED IN MIRANDA V. ARIZONA, ANTE, P. 436, WERE NOT
APPLIED.  HE SEES NO REASON FOR DISCRIMINATING AGAINST THESE
PETITIONERS, ALL OF THESE CASES HAVING COME HERE ON DIRECT REVIEW AND
BEING OF THE SAME VINTAGE AS MIRANDA V. ARIZONA."  384 U.S.,AT 1020 -
1021. 

HERE, AS IN THE CASE OF MIRANDA, IT IS LARGELY CHANCE THAT WE TAKE
FOR REVIEW ONE OF SEVERAL OR MANY CASES PRESENTING THE SAME ISSUE.  IT
IS, I THINK, HIGHLY UNFAIR TO MAKE THE OPINION IN THE CASE WE TAKE
RETROACTIVE IN THAT APPELLANT'S CASE BUT NOT RETROACTIVE IN OTHERS OF
THE SAME VINTAGE AND PENDING HERE.  IF WE SOUGHT EQUAL JUSTICE FOR ALL
WE WOULD EITHER MAKE ALL OF OUR CONSTITUTIONAL DECISIONS RETROACTIVE OR
ALL OF THEM PROSPECTIVE ONLY. 

/1/ SEE ALSO TEHAN V. UNITED STATES EX REL. SHOTT, 382 U.S. 406,
419; DESTEFANO V. WOODS, 392 U.S. 631, 635; FULLER V. ALASKA, 393 U.S.
80, 82; DESIST V. UNITED STATES, 394 U.S. 244, 255; JENKINS V.
DELAWARE, 395 U.S. 213, 222; MACKEY V. UNITED STATES, 401 U.S. 667,
713; ADAMS V. ILLINOIS, 405 U.S. 278, 286; MICHIGAN V. PAYNE, 412 U.S.
47, 58; MICHIGAN V. TUCKER, 417 U.S. 433, 464. 
..END :









STANDARD STEEL CO. V. WASH. REVENUE DEPT., 419 U.S. 560 


       STANDARD PRESSED STEEL CO. V. DEPARTMENT OF REVENUE OF

           WASHINGTON

        APPEAL FROM THE COURT OF APPEALS OF WASHINGTON

        NO. 73 - 1697.  ARGUED DECEMBER 16, 1974--DECIDED JANUARY

           22, 1975; (10 WASH. APP. 45, 516 P.2D 1043, AFFIRMED.) 


    APPELLANT MANUFACTURER, WITH A HOME OFFICE AND MANUFACTURING

  PLANT IN PENNSYLVANIA AND ANOTHER PLANT IN CALIFORNIA, CHALLENGES

  THE CONSTITUTIONALITY OF WASHINGTON STATE'S BUSINESS AND

  OCCUPATION TAX WHICH WAS LEVIED ON THE UNAPPORTIONED GROSS

  RECEIPTS OF APPELLANT RESULTING FROM ITS SALE OF AEROSPACE

  FASTENERS TO BOEING, ITS PRINCIPAL WASHINGTON CUSTOMER. 

  APPELLANT'S ONE WASHINGTON-BASED EMPLOYEE, AN ENGINEER, WHOSE

  OFFICE WAS IN HIS HOME BUT WHO TOOK NO FASTENER ORDERS FROM

  BOEING, PRIMARILY CONSULTED WITH BOEING REGARDING ITS ANTICIPATED

  FASTENER NEEDS AND FOLLOWED UP ANY DIFFICULTIES IN THE USE OF

  FASTENERS AFTER DELIVERY.  THE STATE TAXING AUTHORITIES FOUND

THAT APPELLANT'S BUSINESS ACTIVITIES IN WASHINGTON WERE

SUFFICIENT TO SUSTAIN THE TAX, AND THAT DECISION WAS AFFIRMED ON

  APPEAL.  HELD: WASHINGTON'S BUSINESS AND OCCUPATION TAX ON

  APPELLANT IS CONSTITUTIONAL.  PP. 562 - 564. 

   (A) THERE IS NO VIOLATION OF DUE PROCESS AS THE MEASURE OF THE

  TAX BEARS A RELATIONSHIP TO THE BENEFITS CONFERRED ON APPELLANT

  BY THE STATE.  P. 562. 

     (B) THE TAX IS NOT REPUGNANT TO THE COMMERCE CLAUSE, APPELLANT

  HAVING MADE NO SHOWING OF MULTIPLE TAXATION ON ITS INTERSTATE

  BUSINESS, THE TAX BEING APPORTIONED TO THE ACTIVITIES TAXED, ALL

  OF WHICH ARE INTRASTATE.  GENERAL MOTORS CORP. V. WASHINGTON, 377

  U.S. 436.  PP. 562 - 564.  DOUGLAS, J., WROTE THE OPINION FOR A

  UNANIMOUS COURT. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. CHIEF
JUSTICE BURGER. 

APPELLANT, A MANUFACTURER OF INDUSTRIAL AND AEROSPACE FASTENERS
(NUTS AND BOLTS GENERALLY), HAS ITS HOME OFFICE IN PENNSYLVANIA, ONE
MANUFACTURING PLANT THERE AND ANOTHER IN CALIFORNIA.  ITS PRINCIPAL
CUSTOMER IN THE STATE OF WASHINGTON IS THE BOEING COMPANY, IN SEATTLE. 
IN THE YEARS RELEVANT HERE IT HAD ONE EMPLOYEE, ONE MARTINSON, IN
WASHINGTON WHO WAS PAID A SALARY AND WHO OPERATED OUT OF HIS HOME NEAR
SEATTLE.  HE WAS AN ENGINEER WHOSE PRIMARY DUTY WAS TO CONSULT WITH
BOEING REGARDING ITS ANTICIPATED NEEDS AND REQUIREMENTS FOR AEROSPACE
FASTENERS AND TO FOLLOW UP ANY DIFFICULTIES IN THE USE OF APPELLANT'S
PRODUCT AFTER DELIVERY.  MARTINSON WAS ASSISTED BY A GROUP OF ENGINEERS
OF APPELLANT WHO VISITED BOEING ABOUT THREE DAYS EVERY SIX WEEKS, THEIR
MEETINGS BEING ARRANGED BY MARTINSON.  MARTINSON DID NOT TAKE ORDERS
FROM BOEING; THEY WERE SENT DIRECTLY TO APPELLANT.  ORDERS ACCEPTED
WOULD BE FILLED AND SHIPMENT MADE BY COMMON CARRIER TO BOEING DIRECT,
ALL PAYMENTS BEING MADE DIRECTLY TO APPELLANT.  MARTINSON HAD NO OFFICE
EXCEPT IN HIS HOME; HE HAD NO SECRETARY; BUT APPELLANT MAINTAINED AN
ANSWERING SERVICE IN THE SEATTLE AREA WHICH RECEIVED CALLS FOR
MARTINSON, BILLS FOR THAT SERVICE BEING SENT DIRECT TO APPELLANT. 

THE STATE BOARD OF TAX APPEALS FOUND THAT THE ACTIVITIES OF
MARTINSON WERE NECESSARY TO APPELLANT IN MAKING IT AWARE OF WHICH
PRODUCTS BOEING MIGHT USE, IN OBTAINING THE ENGINEERING DESIGN OF THOSE
PRODUCTS, IN SECURING THE TESTING OF SAMPLE PRODUCTS TO QUALIFY THEM
FOR SALE TO BOEING, IN RESOLVING PROBLEMS OF THEIR USE AFTER RECEIPT BY
BOEING, IN OBTAINING AND RETAINING GOOD WILL AND RAPPORT WITH BOEING
PERSONNEL, AND IN KEEPING THE INVOICING PERSONNEL OF APPELLANT UP TO
DATE ON BOEING'S LISTS OF PURCHASING SPECIALISTS OR CONTROL BUYERS. 
THE BOARD SUSTAINED THE ASSESSMENT OF THE WASHINGTON BUSINESS AND
OCCUPATION TAX, WASH. REV. CODE 82.04.270 (1972), LEVIED ON THE
UNAPPORTIONED GROSS RECEIPTS OF APPELLANT RESULTING FROM ITS SALE OF
FASTENERS TO BOEING.  /1/  THE SUPERIOR COURT AFFIRMED THE BOARD AND
THE COURT OF APPEALS IN TURN AFFIRMED, 10 WASH. APP. 45, 516 P. 2D 1043
(1973).  THE SUPREME COURT DENIED REVIEW.  THE CONSTITUTIONALITY, AS
APPLIED, OF THE WASHINGTON STATUTE BEING CHALLENGED, WE NOTED PROBABLE
JURISDICTION, 417 U.S. 966 (1974). 

APPELLANT ARGUES THAT IMPOSITION OF THE TAX VIOLATES DUE PROCESS
BECAUSE THE IN-STATE ACTIVITIES WERE SO THIN AND INCONSEQUENTIAL AS TO
MAKE THE TAX ON ACTIVITIES OCCURRING BEYOND THE BORDERS OF THE STATE
ONE WHICH HAS NO REASONABLE RELATION TO THE PROTECTION AND BENEFITS
CONFERRED BY THE TAXING STATE, WISCONSIN V. J.C. PENNEY CO., 311 U.S.
435 (1940).  IN OTHER WORDS THE QUESTION IS "WHETHER THE STATE HAS
GIVEN ANYTHING FOR WHICH IT CAN ASK RETURN," ID., AT 444.  WE THINK THE
QUESTION IN THE CONTEXT OF THE PRESENT CASE VERGES ON THE FRIVOLOUS. 
FOR APPELLANT'S EMPLOYEE, MARTINSON, WITH A FULL-TIME JOB WITHIN THE
STATE, MADE POSSIBLE THE REALIZATION AND CONTINUANCE OF VALUABLE
CONTRACTUAL RELATIONS BETWEEN APPELLANT AND BOEING. 

THE CASE IS ARGUED ON THE INTERSTATE COMMERCE ASPECT AS IF
WASHINGTON WERE TAXING THE PRIVILEGE OF DOING AN INTERSTATE BUSINESS
WITH ONLY ORDERS BEING SENT FROM WITHIN THE STATE AND FILLED OUTSIDE
THE STATE, MCLEOD V. DILWORTH CO., 322 U.S. 327 (1944).  MUCH RELIANCE
IS PLACED ON NORTON CO. V. DEPARTMENT OF REVENUE, 340 U.S. 534 (1951),
WHERE A MASSACHUSETTS CORPORATION QUALIFIED TO DO BUSINESS IN ILLINOIS
AND MAINTAINED AN OFFICE THERE FROM WHICH IT MADE LOCAL SALES AT
RETAIL.  IT WAS ACCORDINGLY SUBJECTED TO THE ILLINOIS GROSS RECEIPTS
TAX ON RETAILERS.  THERE WERE, HOWEVER, ORDERS SENT BY ILLINOIS BUYERS
DIRECTLY TO MASSACHUSETTS, FILLED THERE, AND SHIPPED DIRECTLY TO THE
CUSTOMER.  AS TO THESE A DIVIDED COURT HELD THAT THE INCOME FROM THOSE
SALES WAS NOT TAXABLE BY ILLINOIS BY REASON OF THE COMMERCE CLAUSE. 
THE DISAGREEMENT IN THE COURT WAS NOT OVER THE GOVERNING PRINCIPLE; IT
CONCERNED THE BURDEN OF SHOWING A NEXUS BETWEEN THE LOCAL OFFICE AND
INTERSTATE SALES--WHETHER A NEXUS COULD BE ASSUMED AND WHETHER THE
TAXPAYER HAD CARRIED THE BURDEN OF ESTABLISHING ITS IMMUNITY. 

GENERAL MOTORS CORP. V. WASHINGTON, 377 U.S. 436 (1964), IS ALMOST
PRECISELY IN POINT SO FAR AS THE PRESENT CONTROVERSY GOES.  WHILE THE
ZONE MANAGER FOR SALES OF THE CHEVROLET, PONTIAC, AND OLDSMOBILE
DIVISIONS WAS IN PORTLAND, ORE., DISTRICT MANAGERS LIVED AND OPERATED
WITHIN WASHINGTON.  EACH OPERATED FROM HIS HOME, HAVING NO SEPARATE
OFFICE.  EACH HAD FROM 12 TO 30 DEALERS, UNDER SUPERVISION.  HE CALLED
ON EACH OF THESE DEALERS, KEPT TABS ON THE SALES FORCES, AND ADVISED AS
TO PROMOTIONAL AND TRAINING PLANS.  HE ALSO ADVISED ON USED CAR
INVENTORY CONTROL.  HE WORKED OUT WITH THE DEALER ESTIMATED NEEDS OVER
A 30-, 60-, AND 90-DAY PROJECTION OF ORDERS.  GENERAL MOTORS ALSO HAD
IN WASHINGTON SERVICE REPRESENTATIVES WHO CALLED ON DEALERS REGULARLY,
ASSISTED IN ANY TROUBLES EXPERIENCED, AND CHECKED THE ADEQUACY OF THE
SERVICE DEPARTMENT'S INVENTORY.  THEY CONDUCTED SERVICE CLINICS,
TEACHING DEALERS AND EMPLOYEES EFFICIENT SERVICE TECHNIQUES.  WE HELD
THAT THESE ACTIVITIES SERVED GENERAL MOTORS AS EFFECTIVELY WHEN
ADMINISTERED FROM "HOMES"  AS FROM "OFFICES" AND THAT THOSE SERVICES
WERE SUBSTANTIAL "WITH RELATION TO THE ESTABLISHMENT AND MAINTENANCE OF
SALES, UPON WHICH THE TAX WAS MEASURED, "ID., AT 447. 

WE NOTED IN GENERAL MOTORS THAT A VICE IN A TAX ON GROSS RECEIPTS OF
A CORPORATION DOING AN INTERSTATE BUSINESS IS THE RISK OF MULTIPLE
TAXATION; BUT THAT THE BURDEN IS ON THE TAXPAYER TO DEMONSTRATE IT,
ID., AT 449.  THE CORPORATION MADE NO SUCH SHOWING THERE.  NOR IS ANY
EFFORT MADE TO ESTABLISH IT HERE.  THIS VERY TAX WAS INVOLVED IN GWIN,
WHITE & PRINCE, INC. V. HENNEFORD, 305 U.S. 434 (1939).  THE TAXPAYER
WAS A WASHINGTON CORPORATION, DOING BUSINESS THERE AND SHIPPING FRUIT
FROM WASHINGTON TO PLACES OF SALE IN THE VARIOUS STATES AND IN FOREIGN
COUNTRIES.  THE COURT HELD THE TAX UNCONSTITUTIONAL UNDER THE COMMERCE
CLAUSE. 

   "HERE THE TAX, MEASURED BY THE ENTIRE VOLUME OF THE INTERSTATE

  COMMERCE IN WHICH APPELLANT PARTICIPATES, IS NOT APPORTIONED TO

  ITS ACTIVITIES WITHIN THE STATE.  IF WASHINGTON IS FREE TO EXACT

  SUCH A TAX, OTHER STATES TO WHICH THE COMMERCE EXTENDS MAY, WITH

  EQUAL RIGHT, LAY A TAX SIMILARLY MEASURED FOR THE PRIVILEGE OF

  CONDUCTING WITHIN THEIR RESPECTIVE TERRITORIAL LIMITS THE

  ACTIVITIES THERE WHICH CONTRIBUTE TO THE SERVICE.  THE PRESENT

  TAX, THOUGH NOMINALLY LOCAL, THUS IN ITS PRACTICAL OPERATION

  DISCRIMINATES AGAINST INTERSTATE COMMERCE, SINCE IT IMPOSES UPON

  IT, MERELY BECAUSE INTERSTATE COMMERCE IS BEING DONE, THE RISK OF

  A MULTIPLE BURDEN TO WHICH LOCAL COMMERCE IS NOT EXPOSED."  ID.,

  AT 439. 

IN THE INSTANT CASE, AS IN FICKLEN V. SHELBY COUNTY TAXING DISTRICT,
145 U.S. 1 (1892), /2/  THE TAX IS ON THE GROSS RECEIPTS FROM SALES
MADE TO A LOCAL CONSUMER, WHICH MAY HAVE SOME IMPACT ON COMMERCE.  YET
AS WE SAID IN GWIN, WHITE & PRINCE, SUPRA, AT 440, IN DESCRIBING THE
TAX IN FICKLEN, IT IS "APPORTIONED EXACTLY TO THE ACTIVITIES TAXED,"
ALL OF WHICH ARE INTRASTATE. 

              AFFIRMED. 

/1/  APPELLANT PAID THE TAXES UNDER PROTEST, AND IT IS STIPULATED
THAT SHOULD APPELLANT PREVAIL IT WOULD BE ENTITLED TO A REFUND OF
$33,444.91. 

/2/  IN THAT CASE THE TAXPAYERS DID BUSINESS AS BROKERS IN
TENNESSEE.  THEY SOLICITED LOCAL CUSTOMERS AND SENT THEIR ORDERS TO OUT
OF-STATE VENDORS WHO SHIPPED DIRECTLY TO THE PURCHASER.  TENNESSEE
LEVIED A TAX ON THEIR GROSS COMMISSIONS.  THE COURT, IN DISTINGUISHING
THE "DRUMMER" CASES ILLUSTRATED BY ROBBINS V. SHELBY COUNTY TAXING
DISTRICT, 120 U.S. 489 (1887), STATED THAT IN FICKLEN TENNESSEE DID NOT
TAX MORE THAN ITS OWN INTERNAL COMMERCE. 

KENNETH L. CORNELL ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WAS HAROLD S. FARDAL. 

SLADE GORTON, ATTORNEY GENERAL OF WASHINGTON, ARGUED THE CAUSE FOR
APPELLEE.  WITH HIM ON THE BRIEF WERE TIMOTHY R. MALONE, SENIOR
ASSISTANT ATTORNEY GENERAL, AND WILLIAM D. DEXTER, ASSISTANT ATTORNEY
GENERAL. 
..END :
















GOSS V. LOPEZ, 419 U.S. 565 


       GOSS ET AL. V. LOPEZ ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF OHIO

        NO. 73 - 898.  ARGUED OCTOBER 16, 1974--DECIDED JANUARY 22,

           1975; (372 F. SUPP. 1279, AFFIRMED.) 


    APPELLEE OHIO PUBLIC HIGH SCHOOL STUDENTS, WHO HAD BEEN

  SUSPENDED FROM SCHOOL FOR MISCONDUCT FOR UP TO 10 DAYS WITHOUT A

  HEARING, BROUGHT A CLASS ACTION AGAINST APPELLANT SCHOOL

  OFFICIALS SEEKING A DECLARATION THAT THE OHIO STATUTE PERMITTING

  SUCH SUSPENSIONS WAS UNCONSTITUTIONAL AND AN ORDER ENJOINING THE

  OFFICIALS TO REMOVE THE REFERENCES TO THE SUSPENSIONS FROM THE

  STUDENTS' RECORDS.  A THREE-JUDGE DISTRICT COURT DECLARED THAT

  APPELLEES WERE DENIED DUE PROCESS OF LAW IN VIOLATION OF THE

  FOURTEENTH AMENDMENT BECAUSE THEY WERE "SUSPENDED WITHOUT HEARING

PRIOR TO SUSPENSION OR WITHIN A REASONABLE TIME THEREAFTER," AND

  THAT THE STATUTE AND IMPLEMENTING REGULATIONS WERE

  UNCONSTITUTIONAL, AND GRANTED THE REQUESTED INJUNCTION.  HELD: 

     1.  STUDENTS FACING TEMPORARY SUSPENSION FROM A PUBLIC SCHOOL

  HAVE PROPERTY AND LIBERTY INTERESTS THAT QUALIFY FOR PROTECTION

  UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP.

  572 - 576. 

     (A) HAVING CHOSEN TO EXTEND THE RIGHT TO AN EDUCATION TO
PEOPLE

  OF APPELLEES' CLASS GENERALLY, OHIO MAY NOT WITHDRAW THAT RIGHT

  ON GROUNDS OF MISCONDUCT, ABSENT FUNDAMENTALLY FAIR PROCEDURES TO

  DETERMINE WHETHER THE MISCONDUCT HAS OCCURRED, AND MUST RECOGNIZE

  A STUDENT'S LEGITIMATE ENTITLEMENT TO A PUBLIC EDUCATION AS A

  PROPERTY INTEREST THAT IS PROTECTED BY THE DUE PROCESS CLAUSE,

  AND THAT MAY NOT BE TAKEN AWAY FOR MISCONDUCT WITHOUT OBSERVING

  MINIMUM PROCEDURES REQUIRED BY THAT CLAUSE.  PP. 573 - 574. 

(B) SINCE MISCONDUCT CHARGES IF SUSTAINED AND RECORDED COULD

  SERIOUSLY DAMAGE THE STUDENTS' REPUTATION AS WELL AS INTERFERE

  WITH LATER EDUCATIONAL AND EMPLOYMENT OPPORTUNITIES, THE STATE'S

  CLAIMED RIGHT TO DETERMINE UNILATERALLY AND WITHOUT PROCESS

  WHETHER THAT MISCONDUCT HAS OCCURRED IMMEDIATELY COLLIDES WITH

  THE DUE PROCESS CLAUSE'S PROHIBITION AGAINST ARBITRARY

  DEPRIVATION OF LIBERTY.  PP. 574 - 575. 

     (C) A 10-DAY SUSPENSION FROM SCHOOL IS NOT DE MINIMIS AND MAY

  NOT BE IMPOSED IN COMPLETE DISREGARD OF THE DUE PROCESS CLAUSE. 

  NEITHER THE PROPERTY INTEREST IN EDUCATIONAL BENEFITS TEMPORARILY

  DENIED NOR THE LIBERTY INTEREST IN REPUTATION IS SO INSUBSTANTIAL

  THAT SUSPENSIONS MAY CONSTITUTIONALLY BE IMPOSED BY ANY PROCEDURE

THE SCHOOL CHOOSES, NO MATTER HOW ARBITRARY.  PP. 575 - 576. 

     2.  DUE PROCESS REQUIRES, IN CONNECTION WITH A SUSPENSION OF
10

  DAYS OR LESS, THAT THE STUDENT BE GIVEN ORAL OR WRITTEN NOTICE OF

  THE CHARGES AGAINST HIM AND, IF HE DENIES THEM, AN EXPLANATION OF

  THE EVIDENCE THE AUTHORITIES HAVE AND AN OPPORTUNITY TO PRESENT

  HIS VERSION.  GENERALLY, NOTICE AND HEARING SHOULD PRECEDE THE

  STUDENT'S REMOVAL FROM SCHOOL, SINCE THE HEARING MAY ALMOST

  IMMEDIATELY FOLLOW THE MISCONDUCT, BUT IF PRIOR NOTICE AND

  HEARING ARE NOT FEASIBLE, AS WHERE THE STUDENT'S PRESENCE

  ENDANGERS PERSONS OR PROPERTY OR THREATENS DISRUPTION OF THE

 ACADEMIC PROCESS, THUS JUSTIFYING IMMEDIATE REMOVAL FROM SCHOOL,

  THE NECESSARY NOTICE AND HEARING SHOULD FOLLOW AS SOON AS

  PRACTICABLE.  PP. 577 - 584. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, STEWART, AND MARSHALL, JJ., JOINED.  POWELL,

  J., FILED A DISSENTING OPINION, IN WHICH BURGER, C.J., AND

BLACKMUN AND REHNQUIST, JJ., JOINED, POST, P. 584. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL BY VARIOUS ADMINISTRATORS OF THE COLUMBUS, OHIO, PUBLIC
SCHOOL SYSTEM (CPSS) CHALLENGES THE JUDGMENT OF A THREE-JUDGE FEDERAL
COURT, DECLARING THAT APPELLEES--VARIOUS HIGH SCHOOL STUDENTS IN THE
CPSS--WERE DENIED DUE PROCESS OF LAW CONTRARY TO THE COMMAND OF THE
FOURTEENTH AMENDMENT IN THAT THEY WERE TEMPORARILY SUSPENDED FROM THEIR
HIGH SCHOOLS WITHOUT A HEARING EITHER PRIOR TO SUSPENSION OR WITHIN A
REASONABLE TIME THEREAFTER, AND ENJOINING THE ADMINISTRATORS TO REMOVE
ALL REFERENCES TO SUCH SUSPENSIONS FROM THE STUDENTS'  RECORDS. 

        I 

OHIO LAW, REV. CODE ANN. 3313.64 (1972), PROVIDES FOR FREE EDUCATION
TO ALL CHILDREN BETWEEN THE AGES OF SIX AND 21.  SECTION 3313.66 OF THE
CODE EMPOWERS THE PRINCIPAL OF AN OHIO PUBLIC SCHOOL TO SUSPEND A PUPIL
FOR MISCONDUCT FOR UP TO 10 DAYS OR TO EXPEL HIM.  IN EITHER CASE, HE
MUST NOTIFY THE STUDENT'S PARENTS WITHIN 24 HOURS AND STATE THE REASONS
FOR HIS ACTION.  A PUPIL WHO IS EXPELLED, OR HIS PARENTS, MAY APPEAL
THE DECISION TO THE BOARD OF EDUCATION AND IN CONNECTION THEREWITH
SHALL BE PERMITTED TO BE HEARD AT THE BOARD MEETING.  THE BOARD MAY
REINSTATE THE PUPIL FOLLOWING THE HEARING.  NO SIMILAR PROCEDURE IS
PROVIDED IN 3313.66 OR ANY OTHER PROVISION OF STATE LAW FOR A SUSPENDED
STUDENT.  ASIDE FROM A REGULATION TRACKING THE STATUTE, AT THE TIME OF
THE IMPOSITION OF THE SUSPENSIONS IN THIS CASE THE CPSS ITSELF HAD NOT
ISSUED ANY WRITTEN PROCEDURE APPLICABLE TO SUSPENSIONS.  /1/  NOR, SO
FAR AS THE RECORD REFLECTS, HAD ANY OF THE INDIVIDUAL HIGH SCHOOLS
INVOLVED IN THIS CASE.  /2/  EACH, HOWEVER, HAD FORMALLY OR INFORMALLY
DESCRIBED THE CONDUCT FOR WHICH SUSPENSION COULD BE IMPOSED. 

THE NINE NAMED APPELLEES, EACH OF WHOM ALLEGED THAT HE OR SHE HAD
BEEN SUSPENDED FROM PUBLIC HIGH SCHOOL IN COLUMBUS FOR UP TO 10 DAYS
WITHOUT A HEARING PURSUANT TO 3313.66, FILED AN ACTION AGAINST THE
COLUMBUS BOARD OF EDUCATION AND VARIOUS ADMINISTRATORS OF THE CPSS
UNDER 42 U.S.C. 1983.  THE COMPLAINT SOUGHT A DECLARATION THAT 3313.66
WAS UNCONSTITUTIONAL IN THAT IT PERMITTED PUBLIC SCHOOL ADMINISTRATORS
TO DEPRIVE PLAINTIFFS OF THEIR RIGHTS TO AN EDUCATION WITHOUT A HEARING
OF ANY KIND, IN VIOLATION OF THE PROCEDURAL DUE PROCESS COMPONENT OF
THE FOURTEENTH AMENDMENT.  IT ALSO SOUGHT TO ENJOIN THE PUBLIC SCHOOL
OFFICIALS FROM ISSUING FUTURE SUSPENSIONS PURSUANT TO 3313.66 AND TO
REQUIRE THEM TO REMOVE REFERENCES TO THE PAST SUSPENSIONS FROM THE
RECORDS OF THE STUDENTS IN QUESTION.  /3/ 

THE PROOF BELOW ESTABLISHED THAT THE SUSPENSIONS AROSE OUT OF A
PERIOD OF WIDESPREAD STUDENT UNREST IN THE CPSS DURING FEBRUARY AND
MARCH 1971.  SIX OF THE NAMED PLAINTIFFS, RUDOLPH SUTTON, TYRONE
WASHINGTON, SUSAN COOPER, DEBORAH FOX, CLARENCE BYARS, AND BRUCE
HARRIS, WERE STUDENTS AT THE MARION-FRANKLIN HIGH SCHOOL AND WERE EACH
SUSPENDED FOR 10 DAYS /4/  ON ACCOUNT OF DISRUPTIVE OR DISOBEDIENT
CONDUCT COMMITTED IN THE PRESENCE OF THE SCHOOL ADMINISTRATOR WHO
ORDERED THE SUSPENSION.  ONE OF THESE, TYRONE WASHINGTON, WAS AMONG A
GROUP OF STUDENTS DEMONSTRATING IN THE SCHOOL AUDITORIUM WHILE A CLASS
WAS BEING CONDUCTED THERE.  HE WAS ORDERED BY THE SCHOOL PRINCIPAL TO
LEAVE, REFUSED TO DO SO, AND WAS SUSPENDED.  RUDOLPH SUTTON, IN THE
PRESENCE OF THE PRINCIPAL, PHYSICALLY ATTACKED A POLICE OFFICER WHO WAS
ATTEMPTING TO REMOVE TYRONE WASHINGTON FROM THE AUDITORIUM.  HE WAS
IMMEDIATELY SUSPENDED.  THE OTHER FOUR MARION-FRANKLIN STUDENTS WERE
SUSPENDED FOR SIMILAR CONDUCT.  NONE WAS GIVEN A HEARING TO DETERMINE
THE OPERATIVE FACTS UNDERLYING THE SUSPENSION, BUT EACH, TOGETHER WITH
HIS OR HER PARENTS, WAS OFFERED THE OPPORTUNITY TO ATTEND A CONFERENCE,
SUBSEQUENT TO THE EFFECTIVE DATE OF THE SUSPENSION, TO DISCUSS THE
STUDENT'S FUTURE. 

TWO NAMED PLAINTIFFS, DWIGHT LOPEZ AND BETTY CROME, WERE STUDENTS AT
THE CENTRAL HIGH SCHOOL AND MCGUFFEY JUNIOR HIGH SCHOOL, RESPECTIVELY. 
THE FORMER WAS SUSPENDED IN CONNECTION WITH A DISTURBANCE IN THE
LUNCHROOM WHICH INVOLVED SOME PHYSICAL DAMAGE TO SCHOOL PROPERTY.  /5/
LOPEZ TESTIFIED THAT AT LEAST 75 OTHER STUDENTS WERE SUSPENDED FROM HIS
SCHOOL ON THE SAME DAY.  HE ALSO TESTIFIED BELOW THAT HE WAS NOT A
PARTY TO THE DESTRUCTIVE CONDUCT BUT WAS INSTEAD AN INNOCENT
BYSTANDER.  BECAUSE NO ONE FROM THE SCHOOL TESTIFIED WITH REGARD TO
THIS INCIDENT, THERE IS NO EVIDENCE IN THE RECORD INDICATING THE
OFFICIAL BASIS FOR CONCLUDING OTHERWISE.  LOPEZ NEVER HAD A HEARING. 

BETTY CROME WAS PRESENT AT A DEMONSTRATION AT A HIGH SCHOOL OTHER
THAN THE ONE SHE WAS ATTENDING.  THERE SHE WAS ARRESTED TOGETHER WITH
OTHERS, TAKEN TO THE POLICE STATION, AND RELEASED WITHOUT BEING
FORMALLY CHARGED.  BEFORE SHE WENT TO SCHOOL ON THE FOLLOWING DAY, SHE
WAS NOTIFIED THAT SHE HAD BEEN SUSPENDED FOR A 10-DAY PERIOD.  BECAUSE
NO ONE FROM THE SCHOOL TESTIFIED WITH RESPECT TO THIS INCIDENT, THE
RECORD DOES NOT DISCLOSE HOW THE MCGUFFEY JUNIOR HIGH SCHOOL PRINCIPAL
WENT ABOUT MAKING THE DECISION TO SUSPEND CROME, NOR DOES IT DISCLOSE
ON WHAT INFORMATION THE DECISION WAS BASED.  IT IS CLEAR FROM THE
RECORD THAT NO HEARING WAS EVER HELD. 

THERE WAS NO TESTIMONY WITH RESPECT TO THE SUSPENSION OF THE NINTH
NAMED PLAINTIFF, CARL SMITH.  THE SCHOOL FILES WERE ALSO SILENT AS TO
HIS SUSPENSION, ALTHOUGH AS TO SOME, BUT NOT ALL, OF THE OTHER NAMED
PLAINTIFFS THE FILES CONTAINED EITHER DIRECT REFERENCES TO THEIR
SUSPENSIONS OR COPIES OF LETTERS SENT TO THEIR PARENTS ADVISING THEM OF
THE SUSPENSION. 

ON THE BASIS OF THIS EVIDENCE, THE THREE-JUDGE COURT DECLARED THAT
PLAINTIFFS WERE DENIED DUE PROCESS OF LAW BECAUSE THEY WERE "SUSPENDED
WITHOUT HEARING PRIOR TO SUSPENSION OR WITHIN A REASONABLE TIME
THEREAFTER," AND THAT OHIO REV. CODE ANN. 3313.66 (1972) AND
REGULATIONS ISSUED PURSUANT THERETO WERE UNCONSTITUTIONAL IN PERMITTING
SUCH SUSPENSIONS.  /6/  IT WAS ORDERED THAT ALL REFERENCES TO
PLAINTIFFS' SUSPENSIONS BE REMOVED FROM SCHOOL FILES. 

ALTHOUGH NOT IMPOSING UPON THE OHIO SCHOOL ADMINISTRATORS ANY
PARTICULAR DISCIPLINARY PROCEDURES AND LEAVING THEM "FREE TO ADOPT
REGULATIONS PROVIDING FOR FAIR SUSPENSION PROCEDURES WHICH ARE
CONSONANT WITH THE EDUCATIONAL GOALS OF THEIR SCHOOLS AND REFLECTIVE OF
THE CHARACTERISTICS OF THEIR SCHOOL AND LOCALITY," THE DISTRICT COURT
DECLARED THAT THERE WERE "MINIMUM REQUIREMENTS OF NOTICE AND A HEARING
PRIOR TO SUSPENSION, EXCEPT IN EMERGENCY SITUATIONS."  IN EXPLICATION,
THE COURT STATED THAT RELEVANT CASE AUTHORITY WOULD:  (1) PERMIT
"(IMMEDIATE REMOVAL OF A STUDENT WHOSE CONDUCT DISRUPTS THE ACADEMIC
ATMOSPHERE OF THE SCHOOL, ENDANGERS FELLOW STUDENTS, TEACHERS OR SCHOOL
OFFICIALS, OR DAMAGES PROPERTY"; (2) REQUIRE NOTICE OF SUSPENSION
PROCEEDINGS TO BE SENT TO THE STUDENT'S PARENTS WITHIN 24 HOURS OF THE
DECISION TO CONDUCT THEM; AND (3) REQUIRE A HEARING TO BE HELD, WITH
THE STUDENT PRESENT, WITHIN 72 HOURS OF HIS REMOVAL.  FINALLY, THE
COURT STATED THAT, WITH RESPECT TO THE NATURE OF THE HEARING, THE
RELEVANT CASES REQUIRED THAT STATEMENTS IN SUPPORT OF THE CHARGE BE
PRODUCED, THAT THE STUDENT AND OTHERS BE PERMITTED TO MAKE STATEMENTS
IN DEFNESE OR MITIGATION, AND THAT THE SCHOOL NEED NOT PERMIT
ATTENDANCE BY COUNSEL. 

THE DEFENDANT SCHOOL ADMINISTRATORS HAVE APPEALED THE THREE-JUDGE
COURT'S DICISION.  BECAUSE THE ORDER BELOW GRANTED PLAINTIFFS' REQUEST
FOR AN INJUNCTION--ORDERING DEFENDANTS TO EXPUNGE THEIR RECORDS--THIS
COURT HAS JURISDICTION OF THE APPEAL PURSUANT TO 28 U.S.C. 1253.  WE
AFFIRM. 

        II 

AT THE OUTSET, APPELLANTS CONTEND THAT BECAUSE THERE IS NO
CONSTITUTIONAL RIGHT TO AN EDUCATION AT PUBLIC EXPENSE, THE DUE PROCESS
CLAUSE DOES NOT PROTECT AGAINST EXPULSIONS FROM THE PUBLIC SCHOOL
SYSTEM.  THIS POSITION MISCONCEIVES THE NATURE OF THE ISSUE AND IS
REFUTED BY PRIOR DECISIONS.  THE FOURTEENTH AMENDMENT FORBIDS THE STATE
TO DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS
OF LAW.  PROTECTED INTERESTS IN PROPERTY ARE NORMALLY "NOT CREATED BY
THE COMSTITUTION.  RATHER, THEY ARE CREATED AND THEIR DIMENSIONS ARE
DEFINED"  BY AN INDEPENDENT SOURCE SUCH AS STATE STATUTES OR RULES
ENTITLING THE CITIZEN TO CERTAIN BENEFITS.  BOARD OF REGENTS V. ROTH,
408 U.S. 564, 577 (1972). 

ACCORDINGLY, A STATE EMPLOYEE WHO UNDER STATE LAW, OR RULES
PROMULGATED BY STATE OFFICIALS, HAS A LEGITIMATE CLAIM OF ENTITLEMENT
TO CONTINUED EMPLOYMENT ABSENT SUFFICIENT CAUSE FOR DISCHARGE MAY
DEMAND THE PROCEDURAL PROTECTIONS OF DUE PROCESS.  CONNELL V.
HIGGINBOTHAM, 403 U.S. 207 (1971); WIEMAN V. UPDEGRAFF, 344 U.S. 183,
191 - 192 (1952); ARNETT V. KENNEDY, 416 U.S. 134, 164 (POWELL, J.,
CONCURRING), 171 (WHITE, J., CONCURRING AND DISSENTING) (1974).  SO MAY
WELFARE RECIPIENTS WHO HAVE STATUTORY RIGHTS TO WELFARE AS LONG AS THEY
MAINTAIN THE SPECIFIED QUALIFICATIONS.  GOLDBERG V. KELLY, 397 U.S. 254
(1970).  MORRISSEY V. BREWER, 408 U.S. 471 (1972), APPLIED THE
LIMITATIONS OF THE DUE PROCESS CLAUSE TO GOVERNMENTAL DECISIONS TO
REVOKE PAROLE, ALTHOUGH A PAROLEE HAS NO CONSTITUTIONAL RIGHT TO THAT
STATUS.  IN LIKE VEIN WAS WOLFF V. MCDONNELL, 418 U.S. 539 (1974),
WHERE THE PROCEDURAL PROTECTIONS OF THE DUE PROCESS CLAUSE WERE
TRIGGERED BY OFFICIAL CANCELLATION OF A PRISONER'S GOOD-TIME CREDITS
ACCUMULATED UNDER STATE LAW, ALTHOUGH THOSE BENEFITS WERE NOT MANDATED
BY THE CONSTITUTION. 

HERE, ON THE BASIS OF STATE LAW, APPELLEES PLAINLY HAD LEGITIMATE
CLAIMS OF ENTITLEMENT TO A PUBLIC EDUCATION.  OHIO REV. CODE ANN.
3313.48 AND 3313.64 (1972 AND SUPP. 1973) DIRECT LOCAL AUTHORITIES TO
PROVIDE A FREE EDUCATION TO ALL RESIDENTS BETWEEN FIVE AND 21 YEARS OF
AGE, AND A COMPULSORY-ATTENDNACE LAW REQUIRES ATTENDANCE FOR A SCHOOL
YEAR OF NOT LESS THAN 32 WEEKS.  OHIO REV. CODE ANN. 3321.04 (1972). 
IT IS TRUE THAT 3313.66 OF THE CODE PERMITS SCHOOL PRINCIPALS TO
SUSPEND STUDENTS FOR UP TO TWO WEEKS; BUT SUSPENSIONS MAY NOT BE
IMPOSED WITHOUT ANY GROUNDS WHATSOEVER.  ALL OF THE SCHOOLS HAD THEIR
OWN RULES SPECIFYING THE GROUNDS FOR EXPULSION OR SUSPENSION.  HAVING
CHOSEN TO EXTEND THE RIGHT TO AN EDUCATION TO PEOPLE OF APPELLEES'
CLASS GENERALLY, OHIO MAY NOT WITHDRAW THAT RIGHT ON GROUNDS OF
MISCONDUCT, ABSENT FUNDAMENTALLY FAIR PROCEDURES TO DETERMINE WHETHER
THE MISCONDUCT HAS OCCURRED.  ARNETT V. KENNEDY, SUPRA, AT 164 (POWELL,
J., CONCURRING), 171 (WHITE, J., CONCURRING AND DISSENTING), 206
(MARSHALL, J., DISSENTING). 

ALTHOUGH OHIO MAY NOT BE CONSTITUTIONALLY OBLIGATED TO ESTABLISH AND
MAINTAIN A PUBLIC SCHOOL SYSTEM, IT HAS NEVERTHELESS DONE SO AND HAS
REQUIRED ITS CHILDREN TO ATTEND.  THOSE YOUNG PEOPLE DO NOT "SHED THEIR
CONSTITUTIONAL RIGHTS" AT THE SCHOOLHOUSE DOOR.  TINKER V. DES MOINES
SCHOOL DIST., 393 U.S. 503, 506 (1969).  "THE FOURTEENTH AMENDMENT, AS
NOW APPLIED TO THE STATES, PROTECTS THE CITIZEN AGAINST THE STATE
ITSELF AND ALL OF ITS CREATURES--BOARDS OF EDUCATION NOT EXCEPTED." 
WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 637
(1943).  THE AUTHORITY POSSESSED BY THE STATE TO PRESCRIBE AND ENFORCE
STANDARDS OF CONDUCT IN ITS SCHOOLS ALTHOUGH CONCEDEDLY VERY BROAD,
MUST BE EXERCISED CONSISTENTLY WITH CONSTITUTIONAL SAFEGUARDS.  AMONG
OTHER THINGS, THE STATE IS CONSTRAINED TO RECOGNIZE A STUDENT'S
LEGITIMATE ENTITLEMENT TO A PUBLIC EDUCATION AS A PROPERTY INTEREST
WHICH IS PROTECTED BY THE DUE PROCESS CLAUSE AND WHICH MAY NOT BE TAKEN
AWAY FOR MISCONDUCT WITHOUT ADHERENCE TO THE MINIMUM PROCEDURES
REQUIRED BY THAT CLAUSE. 

THE DUE PROCESS CLAUSE ALSO FORBIDS ARBITRARY DEPRIVATIONS OF
LIBERTY.  "WHERE A PERSON'S GOOD NAME, REPUTATION, HONOR, OR INTEGRITY
IS AT STAKE BECAUSE OF WHAT THE GOVERNMENT IS DOING TO HIM," THE
MINIMAL REQUIREMENTS OF THE CLAUSE MUST BE SATISFIED.  WISCONSIN V.
CONSTANTINEAU, 400 U.S. 433, 437 (1971); BOARD OF REGENTS V. ROTH,
SUPRA, AT 573.  SHCOOL AUTHORITIES HERE SUSPENDED APPELLEES FROM SCHOOL
FOR PERIODS OF UP TO 10 DAYS BASED ON CHARGES OF MISCONDUCT.  IF
SUSTAINED AND RECORDED, THOSE CHARGES COULD SERIOUSLY DAMAGE THE
STUDENTS'  STANDING WITH THEIR FELLOW PUPILS AND THEIR TEACHERS AS WELL
AS INTERFERE WITH LATER OPPORTUNITIES FOR HIGHER EDUCATION AND
EMPLOYMENT.  /7/  IT IS APPARENT THAT THE CLAIMED RIGHT OF THE STATE TO
DETERMINE UNILATERALLY AND WITHOUT PROCESS WHETHER THAT MISCONDUCT HAS
OCCURRED IMMEDIATELY COLLIDES WITH THE REQUIREMENTS OF THE
CONSTITUTION. 

APPELLANTS PROCEED TO ARGUE THAT EVEN IF THERE IS A RIGHT TO A
PUBLIC EDUCATION PROTECTED BY THE DUE PROCESS CLAUSE GENERALLY, THE
CLAUSE COMES INTO PLAY ONLY WHEN THE STATE SUBJECTS A STUDENT TO A
"SEVERE DETRIMENT OR GRIEVOUS LOSS."  THE LOSS OF 10 DAYS, IT IS SAID,
IS NEITHER SEVERE NOR GRIEVOUS AND THE DUE PROCESS CLAUSE IS THEREFORE
OF NO RELEVANCE.  APPELLANTS' ARGUMENT IS AGAIN REFUTED BY OUR PRIOR
DECISIONS; FOR IN DETERMINING "WHETHER DUE PROCESS REQUIREMENTS APPLY
IN THE FIRST PLACE, WE MUST LOOK NOT TO THE 'WEIGHT' BUT TO THE NATURE
OF THE INTEREST AT STAKE.  BOARD OF REGENTS V. TOTH, SUPRA, AT 570 -
571.  APPELLEES WERE EXCLUDED FROM SCHOOL ONLY TEMPORARILY, IT IS TRUE,
BUT THE LENGTH AND CONSEQUENT SEVERITY OF A DEPRIVATION, WHILE ANOTHER
FACTOR TO WEIGH IN DETERMINING THE APPROPRIATE FORM OF HEARING, "IS NOT
DECISIVE OF THE BASIC RIGHT" TO A HEARING OF SOME KIND.  FUENTES V.
SHEVIN, 407 U.S. 67, 86 (1972).  THE COURT'S VIEW HAS BEEN THAT AS LONG
AS A PROPERTY DEPRIVATION IS NOT DE MINIMIS, ITS GRAVITY IS IRRELEVANT
TO THE QUESTION WHETHER ACCOUNT MUST BE TAKEN OF THE DUE PROCESS
CLAUSE.  SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337, 342 (1969)
(HARLAN, J., CONCURRING); BODDIE V. CONNECTICUT, 401 U.S. 371, 378 -
379 (1971); BOARD OF REGENTS V. ROTH, SUPRA, AT 570 N. 8.  A 10-DAY
SUSPENSION FROM SCHOOL IS NOT DE MINIMIS IN OUR VIEW AND MAY NOT BE
IMPOSED IN COMPLETE DISREGARD OF THE DUE PROCESS CLAUSE.     A SHORT
SUSPENSION IS, OF COURSE, A FAR MILDER DEPRIVATION THAN EXPULSION. 
BUT, "EDUCATION IS PERHAPS THE MOST IMPORTANT FUNCTION OF STATE AND
LOCAL GOVERNMENTS,"  BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 193
(1954), AND THE TOTAL EXCLUSION FROM THE EDUCATIONAL PROCESS FOR MORE
THAN A TRIVIAL PERIOD, AND CERTAINLY IF THE SUSPENSION IS FOR 10 DAYS,
IS A SERIOUS EVENT IN THE LIFE OF THE SUSPENDED CHILD.  NEITHER THE
PROPERTY INTEREST IN EDUCATIONAL BENEFITS TEMPORARILY DENIED NOR THE
LIBERTY INTEREST IN REPUTATION, WHICH IS ALSO IMPLICATED, IS SO
INSUBSTANTIAL THAT SUSPENSIONS MAY CONSTITUTIONALLY BE IMPOSED BY ANY
PROCEDURE THE SCHOOL CHOOSES, NO MATTER HOW ARBITRARY.  /8/ 

"ONCE IT IS DETERMINED THAT DUE PROCESS APPLIES, THE QUESTION
REMAINS WHAT PROCESS IS DUE."  MORRISSEY V. BREWER, 408 U.S., AT 481. 
WE TURN TO THAT QUESTION, FULLY REALIZING AS OUR CASES REGULARLY DO
THAT THE INTERPRETATION AND APPLICATION OF THE DUE PROCESS CLAUSE ARE
INTENSELY PRACTICAL MATTERS AND THAT "THE VERY NATURE OF DUE PROCESS
NEGATES ANY CONCEPT OF INFLEXIBLE PROCEDURES UNIVERSALLY APPLICABLE TO
EVERY IMAGINABLE SITUATION."  CAFETERIA WORKERS V. MCELROY, 367 U.S.
886, 895 (1961).  WE ARE ALSO MINDFUL OF OUR OWN ADMONITION THAT 

     "JUDICIAL INTERPOSITION IN THE OPERATION OF THE PUBLIC SCHOOL

  SYSTEM OF THE NATION RAISES PROBLEMS REQUIRING CARE AND

  RESTRAINT.  . . . BY AND LARGE, PUBLIC EDUCATION IN OUR NATION IS

 COMMITTED TO THE CONTROL OF STATE AND LOCAL AUTHORITIES." 

  EPPERSON V. ARKANSAS, 393 U.S. 97, 104 (1968). 

THERE ARE CERTAIN BENCH MARKS TO GUIDE US, HOWEVER.  MULLANE V.
CENTRAL HANOVER TRUST CO., 339 U.S. 306 (1950), A CASE OFTEN INVOKED BY
LATER OPINIONS, SAID THAT "(MANY CONTROVERSIES HAVE RAGED ABOUT THE
CRYPTIC AND ABSTRACT WORDS OF THE DUE PROCESS CLAUSE BUT THERE CAN BE
NO DOUBT THAT AT A MINIMUM THEY REQUIRE THAT DEPRIVATION OF LIFE,
LIBERTY OR PROPERTY BY ADJUDICATION BE PRECEDED BY NOTICE AND
OPPORTUNITY FOR HARING APPROPRIATE TO THE NATURE OF THE CASE."  ID., AT
313.  "THE FUNDAMENTAL REQUISITE OF DUE PROCESS OF LAW IS THE
OPPORTUNITY TO BE HEARD," BRANNIS V. ORDEAN, 234 U.S. 385, 394 (1914),
A RIGHT THAT "HAS LITTLE REALITY OR WORTH UNLESS ONE IS INFORMED THAT
THE MATTER IS PENDING AND CAN CHOOSE FOR HIMSELF WHETHER TO . . .
CONTEST."  MULLANE V. CENTRAL HANOVER TRUST CO., SUPRA, AT 314.  SEE
ALSO ARMSTRONG V. MANZO, 380 U.S. 545, 550 (1965); ANTI-FASCIST
COMMITTEE V. MCGRATH, 341 U.S. 123, 168 - 169 (1951) (FRANKFURTER, J.,
CONCURRING).  AT THE VERY MINIMUM, THEREFORE, STUDENTS FACING
SUSPENSION AND THE CONSEQUENT INTERFERENCE WITH A PROTECTED PROPERTY
INTEREST MUST BE GIVEN SOME KIND OF NOTICE AND AFFORDED SOME KIND OF
HEARING.  "PARTIES WHOSE RIGHTS ARE TO BE AFFECTED ARE ENTITLED TO BE
HEARD; AND IN ORDER THAT THEY MAY ENJOY THAT RIGHT THEY MUST FIRST BE
NOTIFIED."  BALDWIN V. HALE, 1 WALL.  223, 233 (1864). 

IT ALSO APPEARS FROM OUR CASES THAT THE TIMING AND CONTENT OF THE
NOTICE AND THE NATURE OF THE HEARING WILL DEPEND ON APPROPRIATE
ACCOMODATION OF THE COMPETING INTERESTS INVOLVED.  CAFETERIA WORKERS V.
MCELROY, SUPRA, AT 895; MORRISSEY V. BREWER, SUPRA, AT 481.  THE
STUDENT'S INTEREST IS TO AVOID UNFAIR OR MISTAKEN EXCLUSION FROM THE
EDUCATIONAL PROCESS, WITH ALL OF ITS UNFORTUNATE CONSEQUENCES.  THE DUE
PROCESS CLAUSE WILL NOT SHIELD HIM FROM SUSPENSIONS PROPERLY IMPOSED,
BUT IT DISSERVES BOTH HIS INTEREST AND THE INTEREST OF THE STATE IF HIS
SUSPENSION IS IN FACT UNWARRANTED.  THE CONCERN WOULD BE MOSTLY
ACADEMIC IF THE DISCIPLINARY PROCESS WERE A TOTALLY ACCURATE, UNERRING
PROCESS, NEVER MISTAKEN AND NEVER UNFAIR.  UNFORTUNATELY, THAT IS NOT
THE CASE, AND NO ONE SUGGESTS THAT IT IS.  DISCIPLINARIANS, ALTHOUGH
PROCEEDING IN UTMOST GOOD FAITH, FREQUENTLY ACT ON THE REPORTS AND
ADVICE OF OTHERS; AND THE CONTROLLING FACTS AND THE NATURE OF THE
CONDUCT UNDER CHALLENGE ARE OFTEN DISPUTED.  THE RISK OF ERROR IS NOT
AT ALL TRIVIAL, AND IT SHOULD BE GUARDED AGAINST IF THAT MAY BE DONE
WITHOUT PROHIBITIVE COST OR INTERFERENCE WITH THE EDUCATIONAL PROCESS. 

THE DIFFICULTY IS THAT OUR SCHOOLS ARE VAST AND COMPLEX.  SOME
MODICUM OF DISCIPLINE AND ORDER IS ESSENTIAL IF THE EDUCATIONAL
FUNCTION IS TO BE PERFORMED.  EVENTS CALLING FOR DISCIPLINE ARE
FREQUENT OCCURRENCES AND SOMETIMES REQUIRE IMMEDIATE, EFFECTIVE
ACTION.  SUSPENSION IS CONSIDERED NOT ONLY TO BE A NECESSARY TOOL TO
MAINTAIN ORDER BUT A VALUABLE EDUCATIONAL DEVICE.  THE PROSPECT OF
IMPOSING ELABORATE HEARING REQUIREMENTS IN EVERY SUSPENSION CASE IS
VIEWED WITH GREAT CONCERN, AND MANY SCHOOL AUTHORITIES MAY WELL PREFER
THE UNTRAMMELED POWER TO ACT UNILATERALLY, UNHAMPERED BY RULES ABOUT
NOTICE AND HEARING.  BUT IT WOULD BE A STRANGE DISCIPLINARY SYSTEM IN
AN EDUCATIONAL INSTITUTION IF NO COMMUNICATION WAS SOUGHT BY THE
DISCIPLINARIAN WITH THE STUDENT IN AN EFFORT TO INFORM HIM OF HIS
DERELICTION AND TO LET HIM TELL HIS SIDE OF THE STORY IN ORDER TO MAKE
SURE THAT AN INJUSTICE IS NOT DONE.  "(FAIRNESS CAN RARELY BE OBTAINED
BY SECRET, ONE-SIDED DETERMINATION OF FACTS DECISIVE OF RIGHTS.  . .
."  "SECRECY IS NOT CONGENIAL TO TRUTH-SEEKING AND SELF-RIGHTEOUSNESS
GIVES TOO SLENDER AN ASSURANCE OF RIGHTNESS.  NO BETTER INSTRUMENT HAS
BEEN DEVISED FOR ARRIVING AT TRUTH THAN TO GIVE A PERSON IN JEOPARDY OF
SERIOUS LOSS NOTICE OF THE CASE AGAINST HIM AND OPPORTUNITY TO MEET
IT."  ANTI-FASCIST COMMITTEE V. MCGRATH, SUPRA, AT 170, 171 - 172
(FRANKFURTER, J., CONCURRING).  /9/ 

WE DO NOT BELIEVE THAT SCHOOL AUTHORITIES MUST BE TOTALLY FREE FROM
NOTICE AND HEARING REQUIREMENTS IF THEIR SCHOOLS ARE TO OPERATE WITH
ACCEPTABLE EFFICIENCY.  STUDENTS FACING TEMPORARY SUSPENSION HAVE
INTERESTS QUALIFYING FOR PROTECTION OF THE DUE PROCESS CLAUSE, AND DUE
PROCESS REQUIRES, IN CONNECTION WITH A SUSPENSION OF 10 DAYS OR LESS,
THAT THE STUDENT BE GIVEN ORAL OR WRITTEN NOTICE OF THE CHARGES AGAINST
HIM AND, IF HE DENIES THEM, AN EXPLANATION OF THE EVIDENCE THE
AUTHORITIES HAVE AND AN OPPORTUNITY TO PRESENT HIS SIDE OF THE STORY. 
THE CLAUSE REQUIRES AT LEAST THESE RUDIMENTARY PRECAUTIONS AGAINST
UNFAIR OR MISTAKEN FINDINGS OF MISCONDUCT AND ARBITRARY EXCLUSION FROM
SCHOOL.  /10/ 

THERE NEED BE NO DELAY BETWEEN THE TIME "NOTICE" IS GIVEN AND THE
TIME OF THE HEARING.  IN THE GREAT MAJORITY OF CASES THE DISCIPLINARIAN
MAY INFORMALLY DISCUSS THE ALLEGED MISCONDUCT WITH THE STUDENT MINUTES
AFTER IT HAS OCCURRED.  WE HOLD ONLY THAT, IN BEING GIVEN AN
OPPORTUNITY TO EXPLAIN HIS VERSION OF THE FACTS AT THIS DISCUSSION, THE
STUDENT FIRST BE TOLD WHAT HE IS ACCUSED OF DOING AND WHAT THE BASIS OF
THE ACCUSATION IS.  LOWER COURTS WHICH HAVE ADDRESSED THE QUESTION OF
THE NATURE OF THE PROCEDURES REQUIRED IN SHORT SUSPENSION CASES HAVE
REACHED THE SAME CONCLUSION.  TATE V. BOARD OF EDUCATION, 453 F. 2D
975, 979 (CA8 1972); VAIL V. BOARD OF EDUCATION, 354 F. SUPP. 592, 603
(NH 1973).  SINCE THE HEARING MAY OCCUR ALMOST IMMEDIATELY FOLLOWING
THE MISCONDUCT, IT FOLLOWS THAT AS A GENERAL RULE NOTICE AND HEARING
SHOULD PRECEDE REMOVAL OF THE STUDENT FROM SCHOOL.  WE AGREE WITH THE
DISTRICT COURT, HOWEVER, THAT THERE ARE RECURRING SITUATIONS IN WHICH
PRIOR NOTICE AND HEARING CANNOT BE INSISTED UPON.  STUDENTS WHOSE
PRESENCE POSES A CONTINUING DANGER TO PERSONS OR PROPERTY OR AN ONGOING
THREAT OF DISRUPTING THE ACADEMIC PROCESS MAY BE IMMEDIATELY REMOVED
FROM SCHOOL.  IN SUCH CASES, THE NECESSARY NOTICE AND RUDIMENTARY
HEARING SHOULD FOLLOW AS SOON AS PRACTICABLE, AS THE DISTRICT COURT
INDICATED. 

IN HOLDING AS WE DO, WE DO NOT BELIEVE THAT WE HAVE IMPOSED
PROCEDURES ON SCHOOL DISCIPLINARIANS WHICH ARE INAPPROPRIATE IN A
CLASSROOM SETTING.  INSTEAD WE HAVE IMPOSED REQUIREMENTS WHICH ARE, IF
ANYTHING, LESS THAN A FAIR-MINDED SCHOOL PRINCIPAL WOULD IMPOSE UPON
HIMSELF IN ORDER TO AVOID UNFAIR SUSPENSIONS.  INDEED, ACCORDING TO THE
TESTIMONY OF THE PRINCIPAL OF MARION-FRANKLIN HIGH SCHOOL, THAT SCHOOL
HAD AN INFORMAL PROCEDURE, REMARKABLY SIMILAR TO THAT WHICH WE NOW
REQUIRE, APPLICABLE TO SUSPENSIONS GENERALLY BUT WHICH WAS NOT FOLLOWED
IN THIS CASE.  SIMILARLY, ACCORDING TO THE MOST RECENT MEMORANDUM
APPLICABLE TO THE ENTIRE CPSS, SEE N. 1, SUPRA, SCHOOL PRINCIPALS IN
THE CPSS ARE NOW REQUIRED BY LOCAL RULE TO PROVIDE AT LEAST AS MUCH AS
THE CONSTITUTIONAL MINIMUM WHICH WE HAVE DESCRIBED. 

WE STOP SHORT OF CONSTRUING THE DUE PROCESS CLAUSE TO REQUIRE,
COUNTRYWIDE, THAT HEARINGS IN CONNECTION WITH SHORT SUSPENSIONS MUST
AFFORD THE STUDENT THE OPPORTUNITY TO SECURE COUNSEL, TO CONFRONT AND
CROSS-EXAMINE WITNESSES SUPPORTING THE CHARGE, OR TO CALL HIS OWN
WITNESSES TO VERIFY HIS VERSION OF THE INCIDENT.  BRIEF DISCIPLINARY
SUSPENSIONS ARE ALMOST COUNTLESS.  TO IMPOSE IN EACH SUCH CASE EVEN
TRUNCATED TRIAL-TYPE PROCEDURES MIGHT WELL OVERWHELM ADMINISTRATIVE
FACILITIES IN MANY PLACES AND, BY DIVERTING RESOURCES, COST MORE THAN
IT WOULD SAVE IN EDUCATIONAL EFFECTIVENESS.  MOREOVER, FURTHER
FORMALIZING THE SUSPENSION PROCESS AND ESCALATING ITS FORMALITY AND
ADVERSARY NATURE MAY NOT ONLY MAKE IT TOO COSTLY AS A REGULAR
DISCIPLINARY TOOL BUT ALSO DESTROY ITS EFFECTIVENESS AS PART OF THE
TEACHING PROCESS. 

ON THE OTHER HAND, REQUIRING EFFECTIVE NOTICE AND INFORMAL HEARING
PERMITTING THE STUDENT TO GIVE HIS VERSION OF THE EVENTS WILL PROVIDE A
MEANINGFUL HEDGE AGAINST ERRONEOUS ACTION.  AT LEAST THE DISCIPLINARIAN
WILL BE ALERTED TO THE EXISTENCE OF DISPUTES ABOUT FACTS AND ARGUMENTS
ABOUT CAUSE AND EFFECT.  HE MAY THEN DETERMINE HIMSELF TO SUMMON THE
ACCUSER, PERMIT CROSS-EXAMINATION, AND ALLOW THE STUDENT TO PRESENT HIS
OWN WITNESSES.  IN MORE DIFFICULT CASES, HE MAY PERMIT COUNSEL.  IN ANY
EVENT, HIS DISCRETION WILL BE MORE INFORMED AND WE THINK THE RISK OF
ERROR SUBSTANTIALLY REDUCED. 

REQUIRING THAT THERE BE AT LEAST AN INFORMAL GIVE-AND-TAKE BETWEEN
STUDENT AND DISCIPLINARIAN, PREFERABLY PRIOR TO THE SUSPENSION, WILL
ADD LITTLE TO THE FACTFINDING FUNCTION WHERE THE DISCIPLINARIAN HIMSELF
HAS WITNESSED THE CONDUCT FORMING THE BASIS FOR THE CHARGE.  BUT THINGS
ARE NOT ALWAYS AS THEY SEEM TO BE, AND THE STUDENT WILL AT LEAST HAVE
THE OPPORTUNITY TO CHARACTERIZE HIS CONDUCT AND PUT IT IN WHAT HE DEEMS
THE PROPER CONTEXT. 

WE SHOULD ALSO MAKE IT CLEAR THAT WE HAVE ADDRESSED OURSELVES SOLELY
TO THE SHORT SUSPENSION, NOT EXCEEDING 10 DAYS.  LONGER SUSPENSIONS OR
EXPULSIONS FOR THE REMAINDER OF THE SCHOOL TERM, OR PERMANENTLY, MAY
REQUIRE MORE FORMAL PROCEDURES.  NOR DO WE PUT ASIDE THE POSSIBILITY
THAT IN UNUSUAL SITUATIONS, ALTHOUGH INVOLVING ONLY A SHORT SUSPENSION,
SOMETHING MORE THAN THE RUDIMENTARY PROCEDURES WILL BE REQUIRED. 

        IV 

THE DISTRICT COURT FOUND EACH OF THE SUSPENSIONS INVOLVED HERE TO
HAVE OCCURRED WITHOUT A HEARING, EITHER BEFORE OR AFTER THE SUSPENSION,
AND THAT EACH SUSPENSION WAS THEREFORE INVALID AND THE STATUTE
UNCONSTITUTIONAL INSOFAR AS IT PERMITS SUCH SUSPENSIONS WITHOUT NOTICE
OR HEARING.  ACCORDINGLY, THE JUDGMENT IS

           AFFIRMED. 

/1/  AT THE TIME OF THE EVENTS INVOLVED IN THIS CASE, THE ONLY
ADMINISTRATIVE REGULATION ON THIS SUBJECT WAS 1010.04 OF THE
ADMINISTRATIVE GUIDE OF THE COLUMBUS PUBLIC SCHOOLS WHICH PROVIDED:
"PUPILS MAY BE SUSPENDED OR EXPELLED FROM SCHOOL IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3313.66 OF THE REVISED CODE."  SUBSEQUENT TO THE
EVENTS INVOLVED IN THIS LAWSUIT, THE DEPARTMENT OF PUPIL PERSONNEL OF
THE CPSS ISSUED THREE MEMORANDA RELATING TO SUSPENSION PROCEDURES,
DATED AUGUST 16, 1971, FEBRUARY 21, 1973, AND JULY !0, 1973,
RESPECTIVELY.  THE FIRST TWO ARE SUBSTANTIALLY SIMILAR TO EACH OTHER
AND REQUIRE NO FACTFINDING HEARING AT ANY TIME IN CONNECTION WITH A
SUSPENSION.  THE THIRD, WHICH WAS APPARENTLY IN EFFECT WHEN THIS CASE
WAS ARGUED, PLACES UPON THE PRINCIPAL THE OBLIGATION TO "INVESTIGATE"
"BEFORE COMMENCING SUSPENSION PROCEDURES"; AND PROVIDES AS PART OF THE
PROCEDURES THAT THE PRINCIPAL SHALL DISCUSS THE CASE WITH THE PUPIL, SO
THAT THE PUPIL MAY "BE HEARD WITH RESPECT TO THE ALLEGED OFFENSE,"
UNLESS THE PUPIL IS "UNAVAILABLE" FOR SUCH A DISCUSSION OR "UNWILLING"
TO PARTICIPATE IN IT.  THE SUSPENSIONS INVOLVED IN THIS CASE OCCURRED,
AND RECORDS THEREOF WERE MADE, PRIOR TO THE EFFECTIVE DATE OF THESE
MEMORANDA.  THE DISTRICT COURT'S JUDGMENT, INCLUDING ITS EXPUNCTION
ORDER, TURNS ON THE PROPRIETY OF THE PROCEDURES EXISTING AT THE TIME
THE SUSPENSIONS WERE ORDERED AND BY WHICH THEY WERE IMPOSED. 

/2/  ACCORDING TO THE TESTIMONY OF PHILLIP FULTON, THE PRINCIPAL OF
ONE OF THE HIGH SCHOOLS INVOLVED IN THIS CASE, THERE WAS AN INFORMAL
PROCEDURE APPLICABLE AT THE MARION-FRANKLIN HIGH SCHOOL.  IT PROVIDED
THAT IN THE ROUTINE CASE OF MISCONDUCT, OCCURRING IN THE PRESENCE OF A
TEACHER, THE TEACHER WOULD DESCRIBE THE MISCONDUCT ON A FORM PROVIDED
FOR THAT PURPOSE AND WOULD SEND THE STUDENT, WITH THE FORM, TO THE
PRINCIPAL'S OFFICE.  THERE, THE PRINCIPAL WOULD OBTAIN THE STUDENT'S
VERSION OF THE STORY, AND, IF IT CONFLICTED WITH THE TEACHER'S WRITTEN
VERSION, WOULD SEND FOR THE TEACHER TO OBTAIN THE TEACHER'S ORAL
VERSION--APPARENTLY IN THE PRESENCE OF THE STUDENT.  MR. FULTON
TESTIFIED THAT, IF A DISCREPANCY STILL EXISTED, THE TEACHER'S VERSION
WOULD BE BELIEVED AND THE PRINCIPAL WOULD ARRIVE AT A DISCIPLINARY
DECISION BASED ON IT.     /3/  THE PLAINTIFFS SOUGHT TO BRING THE
ACTION ON BEHALF OF ALL STUDENTS OF THE COLUMBUS PUBLIC SCHOOLS
SUSPENDED ON OR AFTER FEBRUARY 1971, AND A CLASS ACTION WAS DECLARED
ACCORDINGLY.  SINCE THE COMPLAINT SOUGHT TO RESTRAIN THE "ENFORCEMENT"
AND "OPERATION" OF A STATE STATUTE "BY RESTRAINING THE ACTION OF ANY
OFFICER OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION OF SUCH STATUTE,"
A THREE-JUDGE COURT WAS REQUESTED PURSUANT TO 2, U.S.C. 2281 AND
CONVENED.  THE STUDENTS ALSO ALLEGED THAT THE CONDUCT FOR WHICH THEY
COULD BE SUSPENDED WAS NOT ADEQUATELY DEFINED BY OHIO LAW.  THIS
VAGUENESS AND OVERBREADTH ARGUMENT WAS REJECTED BY THE COURT BELOW AND
THE STUDENTS HAVE NOT APPEALED FROM THIS PART OF THE COURT'S DECISION. 
/4/  FOX WAS GIVEN TWO SEPARATE 10-DAY SUSPENSIONS FOR MISCONDUCT
OCCURRING ON TWO SEPARATE OCCASIONS--THE SECOND FOLLOWING IMMEDIATELY
UPON HER RETURN TO SCHOOL.  IN ADDITION TO HIS SUSPENSION, SUTTON WAS
TRANSFERRED TO ANOTHER SCHOOL. 

/5/  LOPEZ WAS ACTUALLY ABSENT FROM SCHOOL, FOLLOWING HIS
SUSPENSION, FOR OVER 20 DAYS.  THIS SEEMS TO HAVE OCCURRED BECAUSE OF A
MISUNDERSTANDING AS TO THE LENGTH OF THE SUSPENSION.  A LETTER SENT TO
LOPEZ AFTER HE HAD BEEN OUT FOR OVER 10 DAYS PURPORTS TO ASSUME THAT,
BEING OVER COMPULSORY SCHOOL AGE, HE WAS VOLUNTARILY STAYING AWAY. 
UPON ASSERTING THAT THIS WAS NOT THE CASE, LOPEZ WAS TRANSFERRED TO
ANOTHER SCHOOL. 

/6/  IN ITS JUDGMENT, THE COURT STATED THAT THE STATUTE IS
UNCONSTITUTIONAL IN THAT IT PROVIDES "FOR SUSPENSION . . . WITHOUT
FIRST AFFORDING THE STUDENT DUE PROCESS OF LAW."  (EMPHASIS SUPPLIED.) 
HOWEVER, THE LANGUAGE OF THE JUDGMENT MUST BE READ IN LIGHT OF THE
LANGUAGE IN THE OPINION WHICH EXPRESSLY CONTEMPLATES THAT UNDER SOME
CIRCUMSTANCES STUDENTS MAY PROPERLY BE REMOVED FROM SCHOOL BEFORE A
HEARING IS HELD, SO LONG AS THE HEARING FOLLOWS PROMPTLY. 

/7/  APPELLEES ASSERT IN THEIR BRIEF THAT FOUR OF 12 RANDOMLY
SELECTED OHIO COLLEGES SPECIFICALLY INQUIRE OF THE HIGH SCHOOL OF EVERY
APPLICANT FOR ADMISSION WHETHER THE APPLICANT HAS EVER BEEN SUSPENDED. 
BRIEF FOR APPELLEES 34 - 35 AND N. 40.  APPELLEES ALSO CONTEND THAT
MANY EMPLOYERS REQUEST SIMILAR INFORMATION.  IBID. 

CONGRESS HAS RECENTLY ENACTED LEGISLATION LIMITING ACCESS TO
INFORMATION CONTAINED IN THE FILES OF A SCHOOL RECEIVING FEDERAL
FUNDS.  SECTION 513 OF THE EDUCATION AMENDMENTS OF 1974, PUB. L. 93 -
380, 88 STAT. 571, ADDING 438 TO THE GENERAL EDUCATION PROVISIONS ACT. 
THAT SECTION WOULD PRECLUDE RELEASE OF "VERIFIED REPORTS OF SERIOUS OR
RECURRENT BEHAVIOR PATTERNS" TO EMPLOYERS WITHOUT WRITTEN CONSENT OF
THE STUDENT'S PARENTS.  WHILE SUBSECTION (B)(1)(B) PERMITS RELEASE OF
SUCH INFORMATION TO "OTHER SCHOOLS . . . IN WHICH THE STUDENT INTENDS
TO ENROLL," IT DOES SO ONLY UPON CONDITION THAT THE PARENT BE ADVISED
OF THE RELEASE OF THE INFORMATION AND BE GIVEN AN OPPORTUNITY AT A
HEARING TO CHALLENGE THE CONTENT OF THE INFORMATION TO INSURE AGAINST
INCLUSION OF INACCURATE OR MISLEADING INFORMATION.  THE STATUTE DOES
NOT EXPRESSLY STATE WHETHER THE PARENT CAN CONTEST THE UNDERLYING BASIS
FOR A SUSPENSION, THE FACT OF WHICH IS CONTAINED IN THE STUDENT'S
SCHOOL RECORD. 

/8/  SINCE THE LANDMARK DECISION OF THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT IN DIXON V. ALABAMA STATE BOARD OF EDUCATION, 294 F.2D
150, CERT. DENIED, 368 U.S. 930 (1961), THE LOWER FEDERAL COURTS HAVE
UNIFORMLY HELD THE DUE PROCESS CLAUSE APPLICABLE TO DECISIONS MADE BY
TAX-SUPPORTED EDUCATIONAL INSTITUTIONS TO REMOVE A STUDENT FROM THE
INSTITUTION LONG ENOUGH FOR THE REMOVAL TO BE CLASSIFIED AS AN
EXPULSION.  HAGOPIAN V. KNOWLTON, 470 F.2D 201, 211 (CA2 1972); WASSON
V. TROWBRIDGE, 382 F.2D 807, 812 (CA2 1967); ESTEBAN V. CENTRAL
MISSOURI STATE COLLEGE, 415 F.2D 1077, 108.  (CA8 1969), CERT DENIED,
398 U.S. 965 (1970); VOUGHT V. VAN BUREN PUBLIC SCHOOLS, 306 F. SUPP.
1388 (ED MICH. 1969); WHITFIELD V. SIMPSON, 312 F. SUPP. 889 (ED ILL.
1970); FIELDER V. BOARD OF EDUCATION OF SCHOOL DISTRICT OF WINNEBAGO,
NEB., 346 F. SUPP. 722, 729 (NEB. 1972); DEJESUS V. PENBERTHY, 344 F.
SUPP. 70, 74 (CONN. 1972); SOGLIN V. KAUFFMAN, 295 F. SUPP. 978, 994
(WD WIS. 1968), AFF'D, 418 F.2D 163 (CA7 1969); STRICKLIN V. REGENTS OF
UNIVERSITY OF WISCONSIN, 297 F. SUPP. 416, 420 (WD WIS. 1969), APPEAL
DISMISSED, 420 F.2D 1257 (CA7 1970); BUCK V. CARTER, 308 F. SUPP. 1246
(WD WIS. 1970); GENERAL ORDER ON JUDICIAL STANDARDS OF PROCEDURE AND
SUBSTANCE IN REVIEW OF STUDENT DISCIPLINE IN TAX SUPPORTED INSTITUTIONS
OF HIGHER EDUCATION, 45 F.R.D. 133, 147 - 148 (WD MO. 1968) (EN BANC). 
THE LOWER COURTS HAVE BEEN LESS UNIFORM, HOWEVER, ON THE QUESTION
WHETHER REMOVAL FROM SCHOOL FOR SOME SHORTER PERIOD MAY EVER BE SO
TRIVIAL A DEPRIVATION AS TO REQUIRE NO PROCESS, AND, IF SO, HOW SHORT
THE REMOVAL MUST BE TO QUALIFY.  COURTS OF APPEALS HAVE HELD OR ASSUMED
THE DUE PROCESS CLAUSE APPLICABLE TO LONG SUSPENSIONS, PERVIS V.
LAMARQUE IND. SCHOOL DIST., 466 F.2D 1054 (CA5 1972); TO INDEFINITE
SUSPENSIONS, SULLIVAN V. HOUSTON IND. SCHOOL DIST., 475 F.2D 1071
(CA5), CERT. DENIED, 414 U.S. 1032 (1973); TO THE ADDITION OF A 30-DAY
SUSPENSION TO A 10-DAY SUSPENSION, WILLIAMS V. DADE COUNTY SCHOOL
BOARD, 441 F.2D 299 (CA5 1971); TO A 10-DAY SUSPENSION, BLACK STUDENTS
OF NORTH FORT MYERS JR.-SR. HIGH SCHOOL V. WILLIAMS, 470 F.2D 957 (CA5
1972); TO "MILD" SUSPENSIONS, FARRELL V. JOEL, 437 F.2D 160 (CA2 1971),
AND TATE V. BOARD OF EDUCATION, 453 F.2D 975 (CA8 1972):  AND TO A
THREE-DAY SUSPENSION, SHANLEY V. NORTHEAST IND. SCHOOL DIST., BEXAS
COUNTY, TEXAS, 462 F.2D 960, 967 N. 4 (CA5 1972); BUT INAPPLICABLE TO A
SEVEN-DAY SUSPENSION, LINWOOD V. BOARD OF ED. OF CITY OF PEORIA, 463
F.2D 763 (CA7), CERT. DENIED, 409 U.S. 1027 (1972); TO A THREE-DAY
SUSPENSION, DUNN V. TYLER IND. SCHOOL DIST., 460 F.2D 137 (CA5 1972);
TO A SUSPENSTION FOR NOT "MORE THAN A FEW DAYS," MURRAY V. WEST BATON
ROUGE PARISH SCHOOL BOARD, 472 F.2D 438 (CA5 1973); AND TO ALL
SUSPENSIONS NO MATTER HOW SHORT, BLACK COALITION V. PORTLAND SCHOOL
DISTRICT NO. 1, 484 F.2D 1040 (CA9 1973).  THE FEDERAL DISTRICT COURTS
HAVE HELD THE DUE PROCESS CLAUSE APPLICABLE TO AN INTERIM SUSPENSION
PENDING EXPULSION PROCEEDINGS IN STRICKLIN V. REGENTS OF UNIVERSITY OF
WISCONSIN, SUPRA, AND BUCK V. CARTER, SUPRA; TO A 10-DAY SUSPENSION,
BANKS V. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, 314 F. SUPP. 285
(SD FLA. 1970), VACATED, 401 U.S. 988 (1971) (FOR ENTRY OF A FRESH
DECREE SO THAT A TIMELY APPEAL MIGHT BE TAKEN TO THE COURT OF APPEALS),
AFF'D, 450 F.2D 1103 (CA5 1971); TO SUSPENSIONS OF UNDER FIVE DAYS,
VAIL V. BOARD OF EDUCATION OF PORTSMOUTH SCHOOL DIST., 254 F. SUPP. 592
(NH 1973); AND TO ALL SUSPENSIONS, MILLS V. BOARD OF EDUCATION OF THE
DIST. OF COLUMBIA, 348 F. SUPP. 866 (DC 1972), AND GIVENS V. POE, 346
F. SUPP. 202 (WDNC 1972); BUT INAPPLICABLE TO SUSPENSIONS OF 25 DAYS,
HERNANDEZ V. SCHOOL DISTRICT NUMBER ONE, DENVER, COLORADO, 315 F. SUPP.
289 (COLO. 1970); TO SUSPENSIONS OF 10 DAYS, BAKER V. DOWNEY CITY BOARD
OF EDUCATION, 307 F. SUPP. 517 (CD CAL. 1969); AND TO SUSPENSIONS OF
EIGHT DAYS, HATTER V. LOS ANGELES CITY HIGH SCHOOL DISTRICT, 310 F.
SUPP. 1309 (CD CAL. 1970), REV'D ON OTHER GROUNDS, 452 F.2D 673 (CA9
1971).  IN THE CASES HOLDING NO PROCESS NECESSARY IN CONNECTION WITH
SHORT SUSPENSIONS, IT IS NOT ALWAYS CLEAR WHETHER THE COURT VIEWED THE
DUE PROCESS CLAUSE AS INAPPLICABLE, OR SIMPLY FELT THAT THE PROCESS
RECEIVED WAS "DUE" EVEN IN THE ABSENCE OF SOME KIND OF HEARING
PROCEDURE. 

/9/  THE FACTS INVOLVED IN THIS CASE ILLUSTRATE THE POINT.  BETTY
CROME WAS SUSPENDED FOR CONDUCT WHICH DID NOT OCCUR ON SCHOOL GROUNDS,
AND FOR WHICH MASS ARRESTS WERE MADE--HARDLY GUARANTEEING CAREFUL
INDIVIDUALIZED FACTFINDING BY THE POLICE OR BY THE SCHOOL PRINCIPAL. 
SHE CLAIMS TO HAVE BEEN INVOLVED IN NO MISCONDUCT.  HOWEVER, SHE WAS
SUSPENDED FOR 10 DAYS WITHOUT EVER BEING TOLD WHAT SHE WAS ACCUSED OF
DOING OR BEING GIVEN AN OPPORTUNITY TO EXPLAIN HER PRESENCE AMONG THOSE
ARRESTED.  SIMILARLY, DWIGHT LOPEZ WAS SUSPENDED, ALONG WITH MANY
OTHERS, IN CONNECTION WITH A DISTURBANCE IN THE LUNCHROOM.  LOPEZ SAYS
HE WAS NOT ONE OF THOSE IN THE LUNCHRROM WHO WAS INVOLVED.  HOWEVER, HE
WAS NEVER TOLD THE BASIS FOR THE PRINCIPAL'S BELIEF THAT HE WAS
INVOLVED, NOR WAS HE EVER GIVEN AN OPPORTUNITY TO EXPLAIN HIS PRESENCE
IN THE LUNCHROOM.  THE SCHOOL PRINCIPALS WHO SUSPENDED CROME AND LOPEZ
MAY HAVE BEEN CORRECT ON THE MERITS, BUT IT IS INCONSISTENT WITH THE
DUE PROCESS CLAUSE TO HAVE MADE THE DECISION THAT MISCONDUCT HAD
OCCURRED WITHOUT AT SOME MEANINGFUL TIME GIVING CROME OR LOPEZ AN
OPPORTUNITY TO PERSUADE THE PRINCIPALS OTHERWISE. 

WE RECOGNIZE THAT BOTH SUSPENSIONS WERE IMPOSED DURING A TIME OF
GREAT DIFFICULTY FOR THE SCHOOL ADMINISTRATIONS INVOLVED.  AT LEAST IN
LOPEZ' CASE THERE MAY HAVE BEEN AN IMMEDIATE NEED TO SEND HOME EVERYONE
IN THE LUNCHROOM IN ORDER TO PRESERVE SCHOOL ORDER AND PROPERTY; AND
THE ADMINISTRATIVE BURDEN OF PROVIDING 75 "HEARINGS"  OF ANY KIND IS
CONSIDERABLE.  HOWEVER, NEITHER FACTOR JUSTIFIES A DISCIPLINARY
SUSPENSION WITHOUT AT ANY TIME GATHERING FACTS RELATING TO LOPEZ
SPECIFICALLY, CONFRONTING HIM WITH THEM, AND GIVING HIM AN OPPORTUNITY
TO EXPLAIN. 

/10/ APPELLANTS POINT TO THE FACT THAT SOME PROCESS IS PROVIDED
UNDER OHIO LAW BY WAY OF JUDICIAL REVIEW.  OHIO REV. CODE ANN. 2506.01
(SUPP. 1973).  APPELLANTS DO NOT CITE ANY CASE IN WHICH THIS GENERAL
ADMINISTRATIVE REVIEW STATUTE HAS BEEN USED TO APPEAL FROM A
DISCIPLINARY DECISION BY A SCHOOL OFFICIAL.  IF IT BE ASSUMED THAT IT
COULD BE SO USED, IT IS FOR TWO REASONS INSUFFICIENT TO SAVE INADEQUATE
PROCEDURES AT THE SCHOOL LEVEL.  FIRST, ALTHOUGH NEW PROOF MAY BE
OFFERED IN A 2501.06 PROCEEDING, SHAKER COVENTRY CORP. V. SHAKER
HEIGHTS PLANNING COMM'N, 18 OHIO OP. 2D 272, 176 N.E. 2D 332 (1961),
THE PROCEEDING IS NOT DE NOVO.  IN RE LOCKE, 33 OHIO APP. 2D 177, 294
N.E. 2D 230 (1972).  THUS THE DECISION BY THE SCHOOL--EVEN IF MADE UPON
INADEQUATE PROCEDURES--IS ENTITLED TO WEIGHT IN THE COURT PROCEEDING. 
SECOND, WITHOUT A DEMONSTRATION TO THE CONTRARY, WE MUST ASSUME THAT
DELAY WILL ATTEND ANY 2501.06 PROCEEDING, THAT THE SUSPENSION WILL NOT
BE STAYED PENDING HEARING, AND THAT THE STUDENT MEANWHILE WILL
IRREPARABLY LOSE HIS EDUCATIONAL BENEFITS. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

THE COURT TODAY INVALIDATES AN OHIO STATUTE THAT PERMITS STUDENT
SUSPENSIONS FROM SCHOOL WITHOUT A HEARING "FOR NOT MORE THAN TEN
DAYS."  /1/  THE DECISION UNNECESSARILY OPENS AVENUES FOR JUDICIAL
INTERVENTION IN THE OPERATION OF OUR PUBLIC SCHOOLS THAT MAY AFFECT
ADVERSELY THE QUALITY OF EDUCATION.  THE COURT HOLDS FOR THE FIRST TIME
THAT THE FEDERAL COURTS, RATHER THAN EDUCATIONAL OFFICIALS AND STATE
LEGISLATURES, HAVE THE AUTHORITY TO DETERMINE THE RULES APPLICABLE TO
ROUTINE CLASSROOM DISCIPLINE OF CHILDREN AND TEENAGERS IN THE PUBLIC
SCHOOLS.  IT JUSTIFIES THIS UNPRECEDENTED INTRUSION INTO THE PROCESS OF
ELEMENTARY AND SECONDARY EDUCATION BY IDENTIFYING A NEW CONSTITUTIONAL
RIGHT:  THE RIGHT OF A STUDENT NOT TO BE SUSPENDED FOR AS MUCH AS A
SINGLE DAY WITHOUT NOTICE AND A DUE PROCESS HEARING EITHER BEFORE OR
PROMPTLY FOLLOWING THE SUSPENSION.  /2/ 

THE COURT'S DECISION RESTS ON THE PREMISE THAT, UNDER OHIO LAW,
EDUCATION IS A PROPERTY INTEREST PROTECTED BY THE FOURTEENTH
AMENDMENT'S DUE PROCESS CLAUSE AND THEREFORE THAT ANY SUSPENSION
REQUIRES NOTICE AND A HEARING.  /3/  IN MY VIEW, A STUDENT'S INTEREST
IN EDUCATION IS NOT INFRINGED BY A SUSPENSION WITHIN THE LIMITED PERIOD
PRESCRIBED BY OHIO LAW.  MOREOVER, TO THE EXTENT THAT THERE MAY BE SOME
AUGUABLE INFRINGEMENT, IT IS TOO SPECULATIVE, TRANSITORY, AND
INSUBSTANTIAL TO JUSTIFY IMPOSITION OF A CONSTITUTIONAL RULE. 

        I 

ALTHOUGH WE HELD IN SAN ANTONIO INDEPENDENT SCHOOL DIST. V.
ROGRIGUEZ, 411 U.S. 1, 35 (1973), THAT EDUCATION 

NOT A RIGHT PROTECTED BY THE CONSTITUTION, OHIO HAS ELECTED BY
STATUTE TO PROVIDE FREE EDUCATION FOR ALL YOUTHS AGE SIX TO 21, OHIO
REV. CODE ANN. 3313.48, 3313.64 (1972 AND SUPP. 1973), WITH CHILDREN
UNDER 18 YEARS OF AGE BEING COMPELLED TO ATTEND SCHOOL.  3321.01 ET
SEQ. STATE LAW, THEREFORE, EXTENDS THE RIGHT OF FREE PUBLIC SCHOOL
EDUCATION TO OHIO STUDENTS IN ACCORDANCE WITH THE EDUCATION LAWS OF
THAT STATE.  THE RIGHT OR ENTITLEMENT TO EDUCATION SO CREATED IS
PROTECTED IN A PROPER CASE BY THE DUE PROCESS CLAUSE.  SEE, E.G., BOARD
OF REGENTS V. TOTH, 408 U.S. 564 (1972); ARNETT V. KENNEDY, 416 U.S.
134, 164 (1974) (POWELL, J., CONCURRING).  IN MY VIEW, THIS IS NOT SUCH
A CASE. 

IN IDENTIFYING PROPERTY INTERESTS SUBJECT TO DUE PROCESS
PROTECTIONS, THE COURT'S PAST OPINIONS MAKE CLEAR THAT THESE INTERESTS
"ARE CREATED AND THEIR DIMENSIONS ARE DEFINED BY EXISTING RULES OR
UNDERSTANDINGS THAT STEM FROM AN INDEPENDENT SOURCE SUCH AS STATE
LAW."  BOARD OF REGENTS V. ROTH, SUPRA, AT 577 (EMPHASIS SUPPLIED). 
THE OHIO STATUTE THAT CREATES THE RIGHT TO A "FREE" EDUCATION ALSO
EXPLICITLY AUTHORIZES A PRINCIPAL TO SUSPEND A STUDENT FOR AS MUCH AS
10 DAYS.  OHIO REV. CODE ANN. 3313.48, 3313.64, 3313.66 (1972 AND SUPP.
1973).  THUS THE VERY LEGISLATION WHICH "DEFINES" THE "DIMENSION" OF
THE STUDENT'S ENTITLEMENT, WHILE PROVIDING A RIGHT TO EDUCATION
GENERALLY, DOES NOT ESTABLISH THIS RIGHT FREE OF DISCIPLINE IMPOSED IN
ACCORD WITH OHIO LAW.  RATHER, THE RIGHT IS ENCOMPASSED IN THE ENTIRE
PACKAGE OF STATUTORY PROVISIONS GOVERNING EDUCATION IN OHIO--OF WHICH
THE POWER TO SUSPEND IS ONE. 

THE COURT THUS DISREGARDS THE BASIC STRUCTURE OF OHIO LAW IN
POSTURING THIS CASE AS IF OHIO HAD CONFERRED AN UNQUALIFIED RIGHT TO
EDUCATION, THEREBY COMPELLING THE SCHOOL AUTHORITIES TO CONFORM TO DUE
PROCESS PROCEDURES IN IMPOSING THE MOST ROUTINE DISCIPLINE.  /4/ 
BUT HOWEVER ONE MAY DEFINE THE ENTITLEMENT TO EDUCATION PROVIDED BY
OHIO LAW, I WOULD CONCLUDE THAT A DEPRIVATION OF NOT MORE THAN 10 DAYS'
SUSPENSION FROM SCHOOL, IMPOSED AS A ROUTINE DISCIPLINARY MEASURE, DOES
NOT ASSUME CONSTITUTIONAL DIMENSIONS.  CONTRARY TO THE COURT'S
ASSERTION, OUR CASES SUPPORT RATHER THAN "REFUTE" APPELLANTS'  ARGUMENT
THAT "THE DUE PROCESS CLAUSE . . . COMES INTO PLAY ONLY WHEN THE STATE
SUBJECTS A STUDENT TO A 'SEVERE DETRIMENT OR GRIEVOUS LOSS.'"  ANTE, AT
575.  RECENTLY, THE COURT REITERATED PRECISELY THIS STANDARD FOR
ANALYZING DUE PROCESS CLAIMS: 

"WHETHER ANY PROCEDURAL PROTECTIONS ARE DUE DEPENDS ON THE EXTENT TO
WHICH AN INDIVIDUAL WILL BE 'CONDEMNED TO SUFFER GRIEVOUS LOSS.'  JOINT
ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 168 (1951)
(GRANKFURTER, J., CONCURRING), QUOTED IN GOLDBERG V. KELLY, 397 U.S.
254, 263 (1970)."  MORRISSEY V. BREWER, 408 U.S. 471,. 481 (1972).  IN
MORRISSEY WE APPLIED THAT STANDARD TO REQUIRE DUE PROCESS PROCEDURES
FOR PAROLE REVOCATION ON THE GROUND THAT REVOCATION "INFLICTS A
'GRIEVOUS LOSS' ON THE PAROLEE AND OFTEN ON OTHERS."  ID., AT 482.  SEE
ALSO BOARD OF REGENTS V. ROTH, 408 U.S., AT 573 ("SERIOUSLY DAMAGE"
REPUTATION AND STANDING); BELL V. BURSON, 402 U.S. 535, 539 (1971)
("IMPORTANT INTERESTS OF THE LICENSEES"); BODDIE V. CONNECTICUT, 401
U.S. 371, 379 (1971) ("SIGNIFICANT PROPERTY INTEREST").  /5/ 

THE OHIO SUSPENSION STATUTE ALLOWS NO SERIOUS OR SIGNIFICANT
INFRINGEMENT OF EDUCATION.  IT AUTHORIZES ONLY A MAXIMUM SUSPENSION OF
EIGHT SCHOOL DAYS, LESS THAN 5% OF THE NORMAL 180-DAY SCHOOL YEAR. 
ABSENCES OF SUCH LIMITED DURATION WILL RARELY AFFECT A PUPIL'S
OPPORTUNITY TO LEARN OR HIS SCHOLASTIC PERFORMANCE.  INDEED, THE RECORD
IN THIS CASE REFLECTS NO EDUCATIONAL INJURY TO APPELLEES.  EACH
COMPLETED THE SEMESTER IN WHICH THE SUSPENSION OCCURRED AND PERFORMED
AT LEAST AS WELL AS HE OR SHE HAD IN PREVIOUS YEARS.  /6/  DESPITE THE
COURT'S UNSUPPORTED SPECULATION THAT A SUSPENDED STUDENT COULD BE
"SERIOUSLY DAMAGED" (ANTE, AT 575), THERE IS NO FACTUAL SHOWING OF ANY
SUCH DAMAGE TO APPELLEES. 

THE COURT ALSO RELIES ON A PERCEIVED DEPRIVATION OF "LIBERY"
RESULTING FROM ANY SUSPENSION, ARGUING--AGAIN WITHOUT FACTUAL SUPPORT
IN THE RECORD PERTAINING TO THESE APPELLEES--THAT A SUSPENSION HARMS A
STUDENT'S REPUTATION.  IN VIEW OF THE COURT'S DECISION IN BOARD OF
REGENTS V. ROTH, SUPRA, I WOULD HAVE THOUGHT THAT THIS ARGUMENT WAS
PLAINLY UNTENABLE.  UNDERSCORING THE NEED FOR "SERIOUS DAMAGE" TO
REPUTATION, THE ROTH COURT HELD THAT A NONTENURED TEACHER WHO IS NOT
REHIRED BY A PUBLIC UNIVERSITY COULD NOT CLAIM TO SUFFER SUFFICIENT
REPUTATIONAL INJURY TO REQUIRE CONSTITUTIONAL PROTECTIONS.  /7/  SURELY
A BRIEF SUSPENSION IS OF LESS SERIOUS CONSEQUENCE TO THE REPUTATION OF
A TEENAGE STUDENT. 

    II 

IN PRIOR DECISIONS, THIS COURT HAS EXPLICITLY RECOGNIZED THAT SCHOOL
AUTHORITIES MUST HAVE BROAD DISCRETIONARY AUTHORITY IN THE DAILY
OPERATION OF PUBLIC SCHOOLS.  THIS INCLUDES WIDE LATITUDE WITH RESPECT
TO MAINTAINING DISCIPLINE AND GOOD ORDER.  ADDRESSING THIS POINT
SPECIFICALLY, THE COURT STATED IN TINKER V. DES MOINES SCHOOL DIST.,
393 U.S. 503, 507 (1969): 

"THE COURT HAS REPEATEDLY EMPHASIZED THE NEED FOR AFFIRMING THE
COMPREHENSIVE AUTHORITY OF THE STATES AND OF SCHOOL OFFICIALS,
CONSISTENT WITH FUNDAMENTAL CONSTITUTIONAL SAFEGUARDS, TO PRESCRIBE AND
CONTROL CONDUCT IN THE SCHOOLS.  /8/ SUCH AN APPROACH PROPERLY
RECOGNIZES THE UNIQUE NATURE OF PUBLIC EDUCATION AND THE
CORRESPONDINGLY LIMITED ROLE OF THE JUDICIARY IN ITS SUPERVISION.  IN
EPPERSON V. ARKANSAS, 393 U.S. 97, 104 (1968), THE COURT STATED: 

"BY AND LARGE, PUBLIC EDUCATION IN OUR NATION IS COMMITTED TO THE
CONTROL OF STATE AND LOCAL AUTHORITIES.  COURTS DO NOT AND CANNOT
INTERVENE IN THE RESOLUTION OF CONFLICTS WHICH ARISE IN THE DAILY
OPERATION OF SCHOOL SYSTEMS AND WHICH DO NOT DIRECTLY AND SHARPLY
INPLICATE BASIC CONSTITUTIONAL VALUES." 

THE COURT TODAY TURNS ITS BACK ON THESE PRECEDENTS.  IT CAN HARDLY
SERIOUSLY BE CLAIMED THAT A SCHOOL PRINCIPAL'S DECISION TO SUSPEND A
PUPIL FOR A SINGLE DAY WOULD "DIRECTLY AND SHARPLY IMPLICATE BASIC
CONSTITUTIONAL VALUES."  IBID. 

MOREOVER, THE COURT IGNORES THE EXPERIENCE OF MANKIND, AS WELL AS
THE LONG HISTORY OF OUR LAW, RECOGNIZING THAT THERE ARE DIFFERENCES
WHICH MUST BE ACCOMMODATED IN DETERMINING THE RIGHTS AND DUTIES OF
CHILDREN AS COMPARED WITH THOSE OF ADULTS.  EXAMPLES OF THIS
DISTINCTION ABOUND IN OUR LAW:  IN CONTRACTS, IN TORTS, IN CRIMINAL LAW
AND PROCEDURE, IN CRIMINAL SANCTIONS AND REHABILITATION, AND IN THE
RIGHT TO VOTE AND TO HOLD OFFICE.  UNTIL TODAY, AND EXCEPT IN THE
SPECIAL CONTEXT OF THE FIRST AMENDMENT ISSUE IN TINKER, THE EDUCATIONAL
RIGHTS OF CHILDREN AND TEENAGERS IN THE ELEMENTARY AND SECONDARY
SCHOOLS HAVE NOT BEEN ANALOGIZED TO THE RIGHTS OF ADULTS OR TO THOSE
ACCORDED COLLEGE STUDENTS.  EVEN WITH RESPECT TO THE FIRST AMENDMENT,
THE RIGHTS OF CHILDREN HAVE NOT BEEN REGARDED AS "CO-EXTENSIVE WITH
THOSE OF ADULTS."  MR. JUSTICE STEWART, CONCURRING IN TINKER, SUPRA, AT
515. 

        A 

I TURN NOW TO SOME OF THE CONSIDERATIONS WHICH SUPPORT THE COURT'S
FORMER VIEW REGARDING THE COMPREHENSIVE AUTHORITY OF THE STATES AND
SCHOOL OFFICIALS "TO PRESCRIBE AND CONTROL CONDUCT IN THE SCHOOLS." 
ID., AT 507.  UNLIKE THE DIVERGENT AND EVEN SHARP CONFLICT OF INTERESTS
USUALLY PRESENT WHERE DUE PROCESS RIGHTS ARE ASSERTED, THE INTERESTS
HERE IMPLICATED--OF THE STATE THROUGH ITS SCHOOLS AND OF THE PUPILS-
ARE ESSENTIALLY CONGRUENT. 

THE STATE'S, BROADLY PUT, IS IN THE PROPER FUNCTIONING OF ITS PUBLIC
SCHOOL SYSTEM FOR THE BENEFIT OF ALL PUPILS AND THE PUBLIC GENERALLY. 
FEW RULINGS WOULD INTERFERE MORE EXTENSIVELY IN THE DAILY FUNCTIONING
OF SCHOOLS THAN SUBJECTING ROUTINE DISCIPLINE TO THE FORMALITIES AND
JUDICIAL OVERSIGHT OF DUE PROCESS.  SUSPENSIONS ARE ONE OF THE
TRADITIONAL MEANS--RANGING FROM KEEPING A STUDENT AFTER CLASS TO
PERMANENT EXPULSION--USED TO MAINTAIN DISCIPLINE IN THE SCHOOLS.  IT IS
COMMON KNOWLEDGE THAT MAINTAINING ORDER AND REASONABLE DECORUM IN
SCHOOL BUILDINGS AND CLASSROOMS IS A MAJOR EDUCATIONAL PROBLEM, AND ONE
WHICH HAS INCREASED SIGNIFICANTLY IN MAGNITUDE IN RECENT YEARS.  /9/
OFTEN THE TEACHER, IN PROTECTING THE RIGHTS OF OTHER CHILDREN TO AN
EDUCATION (IF NOT HIS OR THEIR SAFETY), IS COMPELLED TO RELY ON THE
POWER TO SUSPEND. 

THE FACTS SET FORTH IN THE MARGIN /10/  LEAVE LITTLE ROOM FOR DOUBT
AS TO THE MAGNITUDE OF THE DISCIPLINARY PROBLEM IN THE PUBLIC SCHOOLS,
OR AS TO THE EXTENT OF RELIANCE UPON THE RIGHT TO SUSPEND.  THEY ALSO
DEMONSTRATE THAT IF HEARINGS WERE REQUIRED FOR A SUBSTANTIAL PERCENTAGE
OF SHORT-TERM SUSPENSIONS, SCHOOL AUTHORITIES WOULD HAVE TIME TO DO
LITTLE ELSE. 

B 

THE STATE'S GENERALIZED INTEREST IN MAINTAINING AN ORDERLY SCHOOL
SYSTEM IS NOT INCOMPATIBLE WITH THE INDIVIDUAL INTEREST OF THE
STUDENT.  EDUCATION IN ANY MEANINGFUL SENSE INCLUDES THE INCULCATION OF
AN UNDERSTANDING IN EACH PUPIL OF THE NECESSITY OF RULES AND OBEDIENCE
THERETO.  THIS UNDERSTANDING IS NO LESS IMPORTANT THAN LEARNING TO READ
AND WRITE.  ONE WHO DOES NOT COMPREHEND THE MEANING AND NECESSITY OF
DISCIPLINE IS HANDICAPPED NOT MERELY IN HIS EDUCATION BUT THROUGHOUT
HIS SUBSEQUENT LIFE.  IN AN AGE WHEN THE HOME AND CHURCH PLAY A
DIMINISHING ROLE IN SHAPING THE CHARACTER AND VALUE JUDGMENTS OF THE
YOUNG, A HEAVIER RESPONSIBILITY FALLS UPON THE SCHOOLS.  WHEN AN
IMMATURE STUDENT MERITS CENSURE FOR HIS CONDUCT, HE IS RENDERED A
DISSERVICE IF APPROPRIATE SANCTIONS ARE NOT APPLIED OR IF PROCEDURES
FOR THEIR APPLICATION ARE SO FORMALIZED AS TO INVITE A CHALLENGE TO THE
TEACHER'S AUTHORITY /11/  --AN INVITATION WHICH REBELLIOUS OR EVEN
MERELY SPIRITED TEENAGERS ARE LIKELY TO ACCEPT. 

THE LESSON OF DISCIPLINE IS NOT MERELY A MATTER OF THE STUDENT'S
SELF-INTEREST IN THE SHAPING OF HIS OWN CHARACTER AND PERSONALITY; IT
PROVIDES AN EARLY UNDERSTANDING OF THE RELEVANCE TO THE SOCIAL COMPACT
OF RESPECT FOR THE RIGHTS OF OTHERS.  THE CLASSROOM IS THE LABORATORY
IN WHICH THIS LESSON OF LIFE IS BEST LEARNED.  MR. JUSTICE BLACK SUMMED
IT UP: 

"SCHOOL DISCIPLINE, LIKE PARENTAL DISCIPLINE, IS AN INTEGRAL AND
IMPORTANT PART OF TRAINING OUR CHILDREN TO BE GOOD CITIZENS--TO BE
BETTER CITIZENS."  TINKER, 393 U.S., AT 524 (DISSENTING OPINION). 

IN ASSESSING IN CONSTITUTIONAL TERMS THE NEED TO PROTECT PUPILS FROM
UNFAIR MINOR DISCIPLINE BY SCHOOL AUTHORITIES, THE COURT IGNORES THE
COMMONALITY OF INTEREST OF THE STATE AND PUPILS IN THE PUBLIC SCHOOL
SYSTEM.  RATHER, IT THINKS IN TRADITIONAL JUDICIAL TERMS OF AN
ADVERSARY SITUATION.  TO BE SURE, THERE WILL BE THE OCCASIONAL PUPIL
INNOCENT OF ANY RULE INFRINGEMENT WHO IS MISTAKENLY SUSPENDED OR WHOSE
INFRACTION IS TOO MINOR TO JUSTIFY SUSPENSION.  BUT, WHILE THERE IS NO
EVIDENCE INDICATING THE FREQUENCY OF UNJUST SUSPENSIONS, COMMON SENSE
SUGGESTS THAT THEY WILL NOT BE NUMEROUS IN RELATION TO THE TOTAL
NUMBER, AND THAT MISTAKES OR INJUSTICES WILL USUALLY BE RIGHTED BY
INFORMAL MEANS. 

        C 

ONE OF THE MORE DISTURBING ASPECTS OF TODAY'S DECISION IS ITS
INDISCRIMINATE RELIANCE UPON THE JUDICIARY, AND THE ADVERSARY PROCESS,
AS THE MEANS OF RESOLVING MANY OF THE MOST ROUTINE PROBLEMS ARISING IN
THE CLASSROOM.  IN MANDATING DUE PROCESS PROCEDURES THE COURT
MISAPPREHENDS THE REALITY OF THE NORMAL TEACHER-PUPIL RELATIONSHIP. 
THERE IS AN ONGOING RELATIONSHIP, ONE IN WHICH THE TEACHER MUST OCCUPY
MANY ROLES--EDUCATOR, ADVISER, FRIEND, AND, AT TIMES, PARENT
SUBSTITUTE.  /12/  IT IS RARELY ADVERSARY IN NATURE EXCEPT WITH RESPECT
TO THE CHRONICALLY DISRUPTIVE OR INSUBORDINATE PUPIL WHOM THE TEACHER
MUST BE FREE TO DISCIPLINE WITHOUT FRUSTRATING FORMALITIES.  /13/ 

THE OHIO STATUTE, PROVIDING AS IT DOES FOR DUE NOTICE BOTH TO
PARENTS AND THE BOARD, IS COMPATIBLE WITH THE TEACHER-PUPIL
RELATIONSHIP AND THE INFORMAL RESOLUTION OF MISTAKEN DISCIPLINARY
ACTION.  WE HAVE RELIED FOR GENERATIONS UPON THE EXPERIENCE, GOOD FAITH
AND DEDICATION OF THOSE WHO STAFF OUR PUBLIC SCHOOLS, /14/  AND THE
NONADVERSARY MEANS OF AIRING GRIEVANCES THAT ALWAYS HAVE BEEN AVAILABLE
TO PUPILS AND THEIR PARENTS.  ONE WOULD HAVE THOUGHT BEFORE TODAY'S
OPINION THAT THIS INFORMAL METHOD OF RESOLVING DIFFERENCES WAS MORE
COMPATIBLE WITH THE INTERESTS OF ALL CONCERNED THAN RESORT TO ANY
CONSTITUTIONALIZED PROCEDURE, HOWEVER BLANDLY IT MAY BE DEFINED BY THE
COURT. 

        D 

IN MY VIEW, THE CONSTITUTIONALIZING OF ROUTINE CLASSROOM DECISIONS
NOT ONLY REPRESENTS A SIGNIFICANT AND UNWISE EXTENSION OF THE DUE
PROCESS CLAUSE, BUT IT ALSO WAS QUITE UNNECESSARY IN VIEW OF THE
SAFEGUARDS PRESCRIBED BY THE OHIO STATUTE.  THIS IS DEMONSTRABLE FROM A
COMPARISON OF WHAT THE COURT MANDATES AS REQUIRED BY DUE PROCESS WITH
THE PROTECTIVE PROCEDURES IT FINDS CONSTITUTIONALLY INSUFFICIENT. 

THE OHIO STATUTE, LIMITING SUSPENSIONS TO NOT MORE THAN EIGHT SCHOOL
DAYS, REQUIRES WRITTEN NOTICE INCLUDING THE "THE REASONS THEREFOR" TO
THE STUDENT'S PARENTS AND TO THE BOARD OF EDUCATION WITHIN 24 HOURS OF
ANY SUSPENSION.  THE COURT ONLY REQUIRES ORAL OR WRITTEN NOTICE TO THE
PUPIL, WITH NO NOTICE BEING REQUIRED TO THE PARENTS OR THE BOARD OF
EDUCATION.  THE MERE FACT OF THE STATUTORY REQUIREMENT IS A DETERRENT
AGAINST ARBITRARY ACTION BY THE PRINCIPAL.  THE BOARD, USUALLY ELECTED
BY THE PEOPLE AND SENSITIVE TO CONSTITUENT RELATIONS, MAY BE EXPECTED
TO IDENTIFY A PRINCIPAL WHOSE RECORD OF SUSPENSIONS MERITS INQUIRY.  IN
ANY EVENT, PARENTS PLACED ON WRITTEN NOTICE MAY EXERCISE THEIR RIGHTS
AS CONSTITUENTS BY GOING DIRECTLY TO THE BOARD OR A MEMBER THEREOF IF
DISSATISFIED WITH THE PRINCIPAL'S DECISION. 

NOR DOES THE COURT'S DUE PROCESS "HEARING" APPEAR TO PROVIDE
SIGNIFICANTLY MORE PROTECTION THAN THAT ALREADY AVAILABLE.  THE COURT
HOLDS ONLY THAT THE PRINCIPAL MUST LISTEN TO THE STUDENT'S "VERSION OF
THE EVENTS," EITHER BEFORE SUSPENSION OR THEREAFTER--DEPENDING UPON THE
CIRCUMSTANCES.  ANTE, AT 583.  SUCH A TRUNCATED "HEARING"  IS LIKELY TO
BE CONSIDERABLY LESS MEANINGFUL THAN THE OPPORTUNITIES FOR CORRECTING
MISTAKES ALREADY AVAILABLE TO STUDENTS AND PARENTS.  INDEED, IN THIS
CASE ALL OF THE STUDENTS AND PARENTS WERE OFFERED AN OPPORTUNITY TO
ATTEND A CONFERENCE WITH SCHOOL OFFICIALS. 

IN ITS RUSH TO MANDATE A CONSTITUTIONAL RULE, THE COURT APPEARS TO
GIVE NO WEIGHT TO THE PRACTICAL MANNER IN WHICH SUSPENSION PROBLEMS
NORMALLY WOULD BE WORKED OUT UNDER OHIO LAW.  /15/  ONE MUST DOUBT,
THEN, WHETHER THE CONSTITUTIONALIZATION OF THE STUDENT-TEACHER
RELATIONSHIP, WITH ALL OF ITS ATTENDANT DOCTRINAL AND PRACTICAL
DIFFICULTIES, WILL ASSURE IN ANY MEANINGFUL SENSE GREATER PROTECTION
THAN THAT ALREADY AFFORDED UNDER OHIO LAW. 

        III 

NO ONE CAN FORESEE THE ULTIMATE FRONTIERS OF THE NEW "THICKET" THE
COURT NOW ENTERS.  TODAY'S RULING APPEARS TO SWEEP WITHIN THE PROTECTED
INTEREST IN EDUCATION A MULTITUDE OF DISCRETIONARY DECISIONS IN THE
EDUCATIONAL PROCESS.  TEACHERS AND OTHER SCHOOL AUTHORITIES ARE
REQUIRED TO MAKE MANY DECISIONS THAT MAY HAVE SERIOUS CONSEQUENCES FOR
THE PUPIL.  THEY MUST DECIDE, FOR EXAMPLE, HOW TO GRADE THE STUDENT'S
WORK, WHETHER A STUDENT PASSES OR FAILS A COURSE, /16/  WHETHER HE IS
TO BE PROMOTED, WHETHER HE IS REQUIRED TO TAKE CERTAIN SUBJECTS,
WHETHER HE MAY BE EXCLUDED FROM INTERSCHOLASTIC ATHLETICS /17/  OR
OTHER EXTRACURRICULAR ACTIVITIES, WHETHER HE MAY BE REMOVED FROM ONE
SCHOOL AND SENT TO ANOTHER, WHETHER HE MAY BE BUSED LONG DISTANCES WHEN
AVAILABLE SCHOOLS ARE NEARBY, AND WHETHER HE SHOULD BE PLACED IN A
"GENERAL" "VOCATIONAL," OR "COLLEGE-PREPARATORY" TRACK. 

IN THESE AND MANY SIMILAR SITUATIONS CLAIMS OF IMPAIRMENT OF ONE'S
EDUCATIONAL ENTITLEMENT IDENTICAL IN PRINCIPLE TO THOSE BEFORE THE
COURT TODAY CAN BE ASSERTED WITH EQUAL OR GREATER JUSTIFICATION. 
LIKEWISE, IN MANY OF THESE SITUATIONS, THE PUPIL CAN ADVANCE THE SAME
TYPES OF SPECULATIVE AND SUBJECTIVE INJURY GIVEN CRITICAL WEIGHT IN
THIS CASE.  THE DISTRICT COURT, RELYING UPON GENERALIZED OPINION
EVIDENCE, CONCLUDED THAT A SUSPENDED STUDENT MAY SUFFER PSYCHOLOGICAL
INJURY IN ONE OR MORE OF THE WAYS SET FORTH IN THE MARGIN BELOW.  /18/
THE COURT APPEARS TO ADOPT THIS RATIONALE.  SEE ANTE, AT 575.     IT
HARDLY NEED BE SAID THAT IF A STUDENT, AS A RESULT OF A DAY'S
SUSPENSION, SUFFERS "A BLOW" TO HIS "SELF-ESTEEM,"  "FEELS POWERLESS,"
VIEWS "TEACHERS WITH RESENTMENT," OR FEELS "STIGMATIZED BY HIS
TEACHERS," IDENTICAL PSYCHOLOGICAL HARMS WILL FLOW FROM MANY OTHER
ROUTINE AND NECESSARY SCHOOL DECISIONS.  THE STUDENT WHO IS GIVEN A
FAILING GRADE, WHO IS NOT PROMOTED, WHO IS EXCLUDED FROM CERTAIN
EXTRACURRICULAR ACTIVITIES, WHO IS ASSIGNED TO A SCHOOL RESERVED FOR
CHILDREN OF LESS THAN AVERAGE ABILITY, OR WHO IS PLACED IN THE
"VOCATIONAL" RATHER THAN THE "COLLEGE PREPARATORY" TRACK, IS UNLIKELY
TO SUFFER ANY LESS PSYCHOLOGICAL INJURY THAN IF HE WERE SUSPENDED FOR A
DAY FOR A RELATIVELY MINOR INFRACTION.  /19/ 

IF, AS SEEMS APPARENT, THE COURT WILL NOW REQUIRE DUE PROCESS
PROCEDURES WHENEVER SUCH ROUTINE SCHOOL DECISIONS ARE CHALLENGED, THE
IMPACT UPON PUBLIC EDUCATION WILL BE SERIOUS INDEED.  THE DISCRETION
AND JUDGMENT OF FEDERAL COURTS ACROSS THE LAND OFTEN WILL BE
SUBSTITUTED FOR THAT OF THE 50 STATE LEGISLATURES, THE 14,000 SCHOOL
BOARDS, /20/ AND THE 2,000,000 /21/  TEACHERS WHO HERETOFORE HAVE BEEN
RESPONSIBLE FOR THE ADMINISTRATION OF THE AMERICAN PUBLIC SCHOOL
SYSTEM.  IF THE COURT PERCEIVES A RATIONAL AND ANALYTICALLY SOUND
DISTINCTION BETWEEN THE DISCRETIONARY DECISION BY SCHOOL AUTHORITIES TO
SUSPEND A PUPIL FOR A BRIEF PERIOD, AND THE TYPES OF DISCRETIONARY
SCHOOL DECISIONS DESCRIBED ABOVE, IT WOULD BE PRUDENT TO ARTICULATE IT
IN TODAY'S OPINION.  OTHERWISE, THE FEDERAL COURTS SHOULD PREPARE
THEMSELVES FOR A VAST NEW ROLE IN SOCIETY. 

        IV 

NOT SO LONG AGO, STATE DEPRIVATIONS OF THE MOST SIGNIFICANT FORMS OF
STATE LARGESSE WERE NOT THOUGHT TO REQUIRE DUE PROCESS PROTECTION ON
THE GROUND THAT THE DEPRIVATION RESULTED ONLY IN THE LOSS OF A STATE
PROVIDED "BENEFIT."  E.G., BAILEY V. RICHARDSON, 86 U.S. APP. D.C. 248,
182 F.2D 46 (1950), AFF'D BY AN EQUALLY DIVIDED COURT, 341 U.S. 918
(1951).  IN RECENT YEARS THE COURT, WISELY IN MY VIEW, HAS REJECTED THE
"WOODEN DISTINCTION BETWEEN 'RIGHTS' AND 'PRIVILEGES,'" BOARD OF
REGENTS V. ROTH, 408 U.S., AT 571, AND LOOKED INSTEAD TO THE
SIGNIFICANCE OF THE STATE-CREATED OR STATE-ENFORCED RIGHT AND TO THE
SUBSTANTIALITY OF THE ALLEGED DEPRIVATION.  TODAY'S OPINION APPEARS TO
ABANDON THIS REASONABLE APPROACH BY HOLDING IN EFFECT THAT GOVERNMENT
INFRINGEMENT OF ANY INTEREST TO WHICH A PERSON IS ENTITLED, NO MATTER
WHAT THE INTEREST OR HOW INCONSEQUENTIAL THE INFRINGEMENT, REQUIRES
CONSTITUTIONAL PROTECTION.  AS IT IS DIFFICULT TO THINK OF ANY LESS
CONSEQUENTIAL INFRINGEMENT THAN SUSPENSION OF A JUNIOR HIGH SCHOOL
STUDENT FOR A SINGLE DAY, IT IS EQUALLY DIFFICULT TO PERCEIVE ANY
PRINCIPLED LIMIT TO THE NEW REACH OF PROCEDURAL DUE PROCESS.  /22/

/1/  THE OHIO STATUTE, OHIO REV. CODE ANN. 3313.66 (1972), ACTUALLY
IS A LIMITATION ON THE TIME-HONORED PRACTICE OF SCHOOL AUTHORITIES
THEMSELVES DETERMINING THE APPROPRIATE DURATION OF SUSPENSIONS.  THE
STATUTE ALLOWS THE SUPERINTENDENT OR PRINCIPAL OF A PUBLIC SCHOOL TO
SUSPEND A PUPIL "FOR NOT MORE THAN TEN DAYS . . ."  (ITALICS SUPPLIED);
AND REQUIRES NOTIFICATION TO THE PARENT OR GUARDIAN IN WRITING WITHIN
24 HOURS OF ANY SUSPENSION. 

/2/  SECTION 3313.66 ALSO PROVIDES AUTHORITY FOR THE EXPULSION OF
PUPILS, BUT REQUIRES A HEARING THEREON BY THE SCHOOL BOARD UPON REQUEST
OF A PARENT OR GUARDIAN.  THE RIGHTS OF PUPILS EXPELLED ARE NOT
INVOLVED IN THIS CASE, WHICH CONCERNS ONLY THE LIMITED DISCRETION OF
SCHOOL AUTHORITIES TO SUSPEND FOR NOT MORE THAN 10 DAYS.  EXPULSION,
USUALLY RESULTING AT LEAST IN LOSS OF A SCHOOL YEAR OR SEMESTER, IS AN
INCOMPARABLY MORE SERIOUS MATTER THAN THE BRIEF SUSPENSION,
TRADITIONALLY USED AS THE PRINCIPAL SANCTION FOR ENFORCING ROUTINE
DISCIPLINE.  THE OHIO STATUTE RECOGNIZES THIS DISTINCTION. 

/3/  THE COURT SPEAKS OF "EXCLUSION FROM THE EDUCATIONAL PROCESS FOR
MORE THAN A TRIVIAL PERIOD . . . ," ANTE, AT 576, BUT ITS OPINION MAKES
CLEAR THAT EVEN ONE DAY'S SUSPENSION INVOKES THE CONSTITUTIONAL
PROCEDURE MANDATED TODAY. 

/4/  THE COURT APPARENTLY READS INTO OHIO LAW BY IMPLICATION A
QUALIFICATION THAT SUSPENSIONS MAY BE IMPOSED ONLY FOR "CAUSE,"
THEREBY ANALOGIZING THIS CASE TO THE CIVIL SERVICE LAWS CONSIDERED IN
ARNETT V. KENNEDY, 416 U.S. 134 (1974).  TO BE SURE, ONE MAY ASSUME
THAT PUTILS ARE NOT SUSPENDED AT THE WHIM OR CAPRICE OF THE SCHOOL
OFFICIAL, AND THE STATUTE DOES PROVIDE FOR NOTICE OF THE SUSPENSION
WITH THE "REASONS THEREFOR."  BUT THE SAME STATUTE DRAWS A SHARP
DISTINCTION BETWEEN SUSPENSION AND THE FAR MORE DRASTIC SANCTION OF
EXPULSION.  A HEARING IS REQUIRED ONLY FOR THE LATTER.  TO FOLLOW THE
COURT'S ANALYSIS, ONE MUST CONCLUDE THAT THE LEGISLATURE NEVERTHELESS
INTENDED--WITHOUT SAYING SO--THAT SUSPENSION ALSO IS OF SUCH
CONSEQUENCE THAT IT MAY BE IMPOSED ONLY FOR CAUSES WHICH CAN BE
JUSTIFIED AT A HEARING.  THE UNSOUNDNESS OF READING THIS SORT OF
REQUIREMENT INTO THE STATUTE IS APPARENT FROM A COMPARISON WITH
ARNETT.  IN THAT CASE, CONGRESS EXPRESSLY PROVIDED THAT NONPROBATIONARY
FEDERAL EMPLOYEES SHOULD BE DISCHARGED ONLY FOR "CAUSE."  THIS
REQUIREMENT REFLECTED CONGRESSIONAL RECOGNITION OF THE SERIOUSNESS OF
DISCHARGING SUCH EMPLOYEES.  THERE SIMPLY IS NO ANALOGY BETWEEN
TERMINATION OF NONPROBATIONARY EMPLOYMENT OF A CIVIL SERVICE EMPLOYEE
AND THE SUSPENSION OF A PUBLIC SCHOOL PUPIL FOR NOT MORE THAN 10 DAYS. 
EVEN IF THE COURT IS CORRECT IN IMPLYING SOME CONCEPT OF JUSTIFIABLE
CAUSE IN THE OHIO PROCEDURE, IT COULD HARDLY BE STRETCHED TO THE
CONSTITUTIONAL PROPORTIONS FOUND PRESENT IN ARNETT. 

/5/  INDEED, THE COURT ITSELF QUOTES FROM A PORTION OF MR. JUSTICE
FRANKFURTER'S CONCURRENCE IN ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH,
341 U.S. 123, 171 (1951), WHICH EXPLICITLY REFERS TO "A PERSON IN
JEOPARDY OF SERIOUS LOSS."  SEE ANTE, AT 580. 

NOR IS THE "DE MINIMIS" STANDARD REFERRED TO BY THE COURT RELEVANT
IN THIS CASE.  THAT STANDARD WAS FIRST STATED BY MR. JUSTICE HARLAN IN
A CONCURRING OPINION IN SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337,
342 (1969), AND THEN QUOTED IN A FOOTNOTE TO THE COURT'S OPINION IN
FUENTES V. SHEVIN, 407 U.S. 67, 90 N. 21 (1972).  BOTH SNIADACH AND
FUENTES, HOWEVER, INVOLVED RESOLUTION OF PROPERTY DISPUTES BETWEEN TWO
PRIVATE PARTIES CLAIMING AN INTEREST IN THE SAME PROPERTY.  NEITHER
CASE PERTAINED TO AN INTEREST CONFERRED BY THE STATE. 

/6/  2 APP. 163 - 171 (TESTIMONY OF NORVAL GOSS, DIRECTOR OF PUPIL
PERSONNEL).  SEE OPINION OF THE THREE-JUDGE COURT, 372 F. SUPP. 1279,
1291 (SD OHIO 1973). 

/7/  SEE ALSO WISCONSIN V. CONSTANTINEAU, 400 U.S. 433, 437 (1971),
QUOTING THE "GRIEVOUS LOSS" STANDARD FIRST ARTICULATED IN ANTI-FASCIST
COMMITTEE V. MCGRATH, SUPRA. 

/8/  IN DISSENT ON THE FIRST AMENDMENT ISSUE, MR. JUSTICE HARLAN
RECOGNIZED THE COURT'S BASIC AGREEMENT ON THE LIMITED ROLE OF THE
JUDICIARY IN OVERSEEING SCHOOL DISCIPLINARY DECISIONS:  "I AM RELUCTANT
TO BELIEVE THAT THERE IS ANY DISAGREEMENT BETWEEN THE MAJORITY AND
MYSELF ON THE PROPOSITION THAT SCHOOL OFFICIALS SHOULD BE ACCORDED THE
WIDEST AUTHORITY IN MAINTAINING DISCIPLINE AND GOOD ORDER IN THEIR
INSTITUTIONS."  393 U.S., AT 526. 

/9/  SEE GENERALLY S. BAILEY, DISRUPTION IN URBAN SECONDARY SCHOOLS
(1970), WHICH SUMMMARIZES SOME OF THE RECENT SURVEYS ON SCHOOL
DISRUPTION.  A SYRACUSE UNIVERSITY STUDY, FOR EXAMPLE, FOUND THAT 85%
OF THE SCHOOLS RESPONDING REPORTED SOME TYPE OF SIGNIFICANT DISRUPTION
IN THE YEARS 1967 - 1970. 

/10/  AN AMICUS BRIEF FILED BY THE CHILDREN'S DEFENSE FUND STATES
THAT AT LEAST 10% OF THE JUNIOR AND SENIOR HIGH SCHOOL STUDENTS IN THE
STATES SAMPLED WERE SUSPENDED ONE OR MORE TIMES IN THE 1972 - 1973
SCHOOL YEAR.  THE DATA ON WHICH THIS CONCLUSION RESTS WERE OBTAINED
FROM AN EXTENSIVE SURVEY PREPARED BY THE OFFICE FOR CIVIL RIGHTS OF THE
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE.  THE CHILDREN'S DEFENSE
FUND REVIEWED THE SUSPENSION DATA FOR FIVE STATES--ARKANSAS, MARYLAND,
NEW JERSEY, OHIO, AND SOUTH CAROLINA. 

LIKEWISE, AN AMICUS BRIEF SUBMITTED BY SEVERAL SCHOOL ASSOCIATIONS
IN OHIO INDICATES THAT THE NUMBER OF SUSPENSIONS IS SIGNIFICANT:  IN
1972 - 1973, 4,054 STUDENTS OUT OF A SCHOOL ENROLLMENT OF 81,007 WERE
SUSPENDED IN CINCINNATI; 7,352 OF 57,000 STUDENTS WERE SUSPENDED IN
AKRON; AND 14,598 OF 142,053 STUDENTS WERE SUSPENDED IN CLEVELAND.  SEE
ALSO THE OFFICE OF CIVIL RIGHTS SURVEY, SUPRA, FINDING THAT
APPROXIMATELY 20,000 STUDENTS IN NEW YORK CITY, 12,000 IN CLEVELAND,
9,000 IN HOUSTON, AND 9,000 IN MEMPHIS WERE SUSPENDED AT LEAST ONCE
DURING THE 1972 - 1973 SCHOOL YEAR.  EVEN THESE FIGURES ARE PROBABLY
SOMEWHAT CONSERVATIVE SINCE SOME SCHOOLS DID NOT REPLY TO THE SURVEY. 

/11/  SEE GENERALLY J. DOBSON, DARE TO DISCIPLINE (1970). 

/12/  THE ROLE OF THE TEACHER IN OUR SOCIETY HISTORICALLY HAS BEEN
AN HONORED AND RESPECTED ONE, ROOTED IN THE EXPERIENCE OF DECADES THAT
HAS LEFT FOR MOST OF US WARM MEMORIES OF OUR TEACHERS, ESPECIALLY THOSE
OF THE FORMATIVE YEARS OF PRIMARY AND SECONDARY EDUCATION. 

/13/  IN THIS REGARD, THE RELATIONSHIP BETWEEN A STUDENT AND TEACHER
IS MANIFESTLY DIFFERENT FROM THAT BETWEEN A WELFARE ADMINISTRATOR AND A
RECIPIENT (SEE GOLDBERG V. KELLY, 397 U.S. 254 (1970)), A MOTOR VEHICLE
DEPARTMENT AND A DRIVER (SEE BELL V. BURSON, 402 U.S. 535 (1971)), A
DEBTOR AND A CREDITOR (SEE SNIADACH V. FAMILY FINANCE CORP., SUPRA;
FUENTES V. SHEVIN, SUPRA; MITCHELL V. W.T. GRANT CO., 416 U.S. 600
(1974)), A PAROLE OFFICER AND A PAROLEE (SEE MORRISSEY V. BREWER, 408
U.S. 471 (1972)), OR EVEN AN EMPLOYER AND AN EMPLOYEE (SEE ARNETT V.
KENNEDY, 416 U.S. 134 (1974)).  IN MANY OF THESE NONEDUCATION SETTINGS
THERE IS--FOR PURPOSES OF THIS ANALYSIS--A "FACELESS" ADMINISTRATOR
DEALING WITH AN EQUALLY "FACELESS"  RECIPIENT OF SOME FORM OF
GOVERNMENT BENEFIT OR LICENSE; IN OTHERS, SUCH AS THE GARNISHMENT AND
REPOSSESSION CASES, THERE IS A CONFLICT-OF-INTEREST RELATIONSHIP.  OUR
PUBLIC SCHOOL SYSTEM, HOWEVER, IS PREMISED ON THE BELIEF THAT TEACHERS
AND PUPILS SHOULD NOT BE "FACELESS" TO EACH OTHER.  NOR DOES THE
EDUCATIONAL RELATIONSHIP PRESENT A TYPICAL "CONFLICT OF INTEREST." 
RATHER, THE RELATIONSHIP TRADITIONALLY IS MARKED BY A COINCIDENCE OF
INTERESTS. 

YET THE COURT, RELYING ON CASES SUCH AS SNIADACH AND FUENTES,
APPARENTLY VIEWS THE CLASSROOM OF TEENAGERS AS COMPARABLE TO THE
COMPETITIVE AND ADVERSARY ENVIRONMENT OF THE ADULT, COMMERCIAL WORLD. 

/14/  A TRADITIONAL FACTOR IN ANY DUE PROCESS ANALYSIS IS "THE
PROTECTION IMPLICIT IN THE OFFICE OF THE FUNCTIONARY WHOSE CONDUCT IS
CHALLENGED . . . ."  ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S., AT
163 (FRANKFURTER, J., CONCURRING).  IN THE PUBLIC SCHOOL SETTING THERE
IS A HIGH DEGREE OF SUCH PROTECTION SINCE A TEACHER HAS RESPONSIBILITY
FOR, AND A COMMITMENT TO, HIS PUPILS THAT IS ABSENT IN OTHER DUE
PROCESS CONTEXTS. 

/15/  THE COURT ITSELF RECOGNIZES THAT THE REQUIREMENTS IT IMPOSES
ARE, "IF ANYTHING, LESS THAN A FAIR-MINDED SCHOOL PRINCIPAL WOULD
IMPOSE UPON HIMSELF IN ORDER TO AVOID UNFAIR SUSPENSIONS."  ANTE, AT
583. 

/16/  SEE CONNELLY V. UNIVERSITY OF VERMONT, 244 F. SUPP. 156 (VT.
1956). 

/17/  SEE KELLEY V. METROPOLITAN COUNTY BOARD OF EDUCATION OF
NASHVILLE, 293 F. SUPP. 485 (MD TENN. 1968). 

/18/  THE PSYCHOLOGICAL INJURIES SO PERCEIVED WERE AS FOLLOWS: 

"1.  THE SUSPENSION IS A BLOW TO THE STUDENT'S SELF-ESTEEM. 

"2.  THE STUDENT FEELS POWERLESS AND HELPLESS. 

"3.  THE STUDENT VIEWS SCHOOL AUTHORITIES AND TEACHERS WITH
RESENTMENT, SUSPICION AND FEAR. 

"4.  THE STUDENT LEARNS WITHDRAWAL AS A MODE OF PROBLEM SOLVING. 

"5.  THE STUDENT HAS LITTLE PERCEPTION OF THE REASONS FOR THE
SUSPENSION.  HE DOES NOT KNOW WHAT OFFENDING ACTS HE COMMITTED. 

"6.  THE STUDENT IS STIGMATIZED BY HIS TEACHERS AND SCHOOL
ADMINISTRATORS AS A DEVIANT.  THEY EXPECT THE STUDENT TO BE A
TROUBLEMAKER IN THE FUTURE."  372 F. SUPP., AT 1292. 

/19/  THERE IS, NO DOUBT, A SCHOOL OF MODERN PSYCHOLOGICAL OR
PSYCHIATRIC PERSUASION THAT MAINTAINS THAT ANY DISCIPLINE OF THE YOUNG
IS DETRIMENTAL.  WHATEVER ONE MAY THINK OF THE WISDOM OF THIS UNPROVED
THEORY, IT HARDLY AFFORDS DEPENDABLE SUPPORT FOR A CONSTITUTIONAL
DECISION.  MOREOVER, EVEN THE THEORY'S PROPONENTS WOULD CONCEDE THAT OF
THE MAGNITUDE OF INJURY DEPENDS PRIMARILY UPON THE INDIVIDUAL CHILD OR
TEENAGER.  A CLASSROOM REPRIMAND BY THE TEACHER MAY BE MORE TRAUMATIC
TO THE SHY, TIMID INTROVERT THAN EXPULSION WOULD BE TO THE AGGRESIVE,
REBELLIOUS EXTROVERT.  IN MY VIEW WE TEND TO LOSE OUR SENSE OF
PERSPECITVE AND PROPORTION IN A CASE OF THIS KIND.  FOR AVERAGE, NORMAL
CHILDREN--THE VAST MAJORITY--SUSPENSION FOR A FEW DAYS IS SIMPLY NOT A
DETRIMENT; IT IS A COMMONPLACE OCCURRENCE, WITH SOME 10% OF ALL
STUDENTS BEING SUSPENDED; IT LEAVES NO SCARS; AFFECTS NO REPUTATIONS;
INDEED, IT OFTEN MAY BE VIEWED BY THE YOUNG AS A BADGE OF SOME
DISTINCTION AND A WELCOME HOLIDAY. 

/20/  THIS ESTIMATE WAS SUPPLIED BY THE NATIONAL SCHOOL BOARD
ASSOCIATION, WASHINGTON, D.C. 

/21/  SEE U.S. OFFICE OF EDUCATION, ELEMENTARY AND SECONDARY PUBLIC
SCHOOL STATISTICS, 1972 - 1973. 

/22/  SOME HALF DOZEN YEARS AGO, THE COURT EXTENDED FIRST AMENDMENT
RIGHTS UNDER LIMITED CIRCUMSTANCES TO PUBLIC SCHOOL PUPILS.  MR.
JUSTICE BLACK, DISSENTING, VIEWED THE DECISION AS USHERING IN "AN
ENTIRELY NEW ERA IN WHICH THE POWER TO CONTROL PUPILS BY THE ELECTED
'OFFICIALS OF STATE SUPPORTED PUBLIC SCHOOLS' . . . IS IN ULTIMATE
EFFECT TRANSFERRED TO THE SUPREME COURT."  TINKER V. DES MOINES SCHOOL
DIST., 393 U.S. 503, 515 (1969).  THERE WERE SOME WHO THOUGHT MR.
JUSTICE BLACK WAS UNDELY CONCERNED.  BUT HIS PROPHECY IS NOW BEING
FULFILLED.  IN THE FEW YEARS SINCE TINKER THERE HAVE BEEN LITERALLY
HUNDREDS OF CASES BY SCHOOLCHILDREN ALLEGING VIOLATION OF THEIR
CONSTITUTIONAL RIGHTS.  THIS FLOOD OF LITIGATION, BETWEEN PUPILS AND
SCHOOL AUTHORITIES, WAS TRIGGERED BY A NARROWLY WRITTEN FIRST AMENDMENT
OPINION WHICH I COULD WELL HAVE JOINED ON ITS FACTS.  ONE CAN ONLY
SPECULATE AS TO THE EXTENT TO WHICH PUBLIC EDUCATION WILL BE DISRUPTED
BY GIVING EVERY SCHOOLCHILD THE POWER TO CONTEST IN COURT ANY DECISION
MADE BY HIS TEACHER WHICH ARGUABLY INFRINGES THE STATE-CONFERRED RIGHT
TO EDUCATION.     THOMAS A. BUSTIN ARGUED THE CAUSE FOR APPELLANTS. 
WITH HIM ON THE BRIEFS WERE JAMES J. HUGHES, JR., ROBERT A. BELL, AND
PATRICK M. MCGRATH. 

PETER D. ROOS ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
WERE DENIS MURPHY AND KENNETH C. CURTIN. 

JOHN F. LEWIS FILED A BRIEF FOR THE BUCKEYE ASSOCIATION OF SCHOOL
ADMINISTRATORS ET AL. AS AMICI CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY DAVID
BONDERMAN, PETER VAN N. LOCKWOOD, PAUL L. TRACTENBERG, DAVID RUBIN, AND
W. WILLIAM HODES FOR THE NATIONAL COMMITTEE FOR CITIZENS IN EDUCATION
ET AL.; BY ALAN H. LEVINE, MELVIN L. WULF, AND JOEL M. GORA FOR THE
AMERICAN CIVIL LIBERTIES UNION; BY ROBERT H. KAPP, R. STEPHEN BROWNING,
AND NATHANIEL R. JONES FOR THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE ET AL.; AND BY MARIAN WRIGHT EDELMAN FOR THE
CHILDREN'S DEFENSE FUND OF THE WASHINGTON RESEARCH PROJECT, INC., ET
AL.
..END :









NORTH GEORGIA FINISHING, INC. V. DI-CHEM, INC., 419 U.S. 601 


       NORTH GEORGIA FINISHING, INC. V. DI-CHEM, INC.

      CERTIORARI TO THE SUPREME COURT OF GEORGIA

NO. 73 - 1121.  ARGUED NOVEMBER 18, 1974--DECIDED JANUARY

          22, 1975; (231 GA. 260, 201 S. E. 2D 321, REVERSED AND

           REMANDED.) 


    GEORGIA STATUTES PERMITTING A WRIT OF GARNISHMENT TO BE ISSUED

  IN PENDING SUITS ON AN AFFIDAVIT OF THE PLAINTIFF OR HIS ATTORNEY

  CONTAINING ONLY CONCLUSORY ALLEGATIONS, PRESCRIBING FILING OF A

  BOND AS THE ONLY METHOD OF DISSOLVING THE GARNISHMENT, WHICH

  DEPRIVES THE DEFENDANT OF THE USE OF THE PROPERTY IN THE

  GARNISHEE'S HANDS PENDING THE LITIGATION, AND MAKING NO PROVISION

  FOR AN EARLY HEARING, VIOLATE THE DUE PROCESS CLAUSE OF THE

  FOURTEENTH AMENDMENT, SNIADACH V. FAMILY FINANCE CORP., 395 U.S.

337; FUENTES V. SHEVIN, 407 U.S. 67.  MITCHELL V. W.T. GRANT CO.,

  416 U.S. 600, DISTINGUISHED.  THAT THIS CASE INVOLVED GARNISHMENT

  OF A CORPORATION'S SIZABLE BANK ACCOUNT, RATHER THAN A CONSUMER'S

  HOUSEHOLD NECESSITIES, IS IMMATERIAL, SINCE THE PROBABILITY OF

  IRREPARABLE INJURY IF THE GARNISHMENT PROVES UNJUSTIFIED IS

  SUFFICIENTLY GREAT TO REQUIRE SOME PROCEDURE TO GUARD AGAINST

  INITIAL ERROR.  PP. 605 - 608. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, STEWART, AND MARSHALL, JJ., JOINED.  STEWART,

  J., FILED A CONCURRING STATEMENT, POST, P. 608.  POWELL, J.,

  FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 609. 

  BLACKMUM, J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, J.,

  JOINED, AND IN NUMBERED PARAGRAPH 5 OF WHICH BURGER, C.J.,

  JOINED, POST, P. 614. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

UNDER THE STATUTES OF THE STATE OF GEORGIA, PLAINTIFFS IN PENDING
SUITS ARE "ENTITLED TO THE PROCESS OF GARNISHMENT."  G. CODE ANN. 46 -
101.  /1/  TO EMPLOY THE PROCESS, PLAINTIFF OR HIS ATTORNEY MUST MAKE
AN AFFIDAVIT BEFORE "SOME OFFICER AUTHORIZED TO ISSUE AN ATTACHMENT, OR
THE CLERK OF ANY COURT OF RECORD IN WHICH THE SAID GARNISHMENT IS BEING
FILED OR IN WHICH THE MAIN CASE IS FILED, STATING THE AMOUNT CLAIMED TO
BE DUE IN SUCH ACTION . . . AND THAT HE HAS REASON TO APPREHEND THE
LOSS OF THE SAME OR SOME PART THEREOF UNLESS PROCESS OF GARNISHMENT
SHALL ISSUE."  46 - 102.  TO PROTECT DEFENDANT AGAINST LOSS OR DAMAGE
IN THE EVENT PLAINTIFF FAILS TO RECOVER, THAT SECTION ALSO REQUIRES
PLAINTIFF TO FILE A BOND IN A SUM DOUBLE THE AMOUNT SWORN TO BE DUE. 
FILING A BOND "CONDITIONED FOR THE PAYMENT OF ANY JUDGMENT THAT SHALL
BE RENDERED ON SAID GARNISHMENT."  WHETHER THESE PROVISIONS SATISFY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT IS THE ISSUE BEFORE US
IN THIS CASE. 

ON AUGUST 20, 1971, RESPONDENT FILED SUIT AGAINST PETITIONER IN THE
SUPERIOR COURT OF WHITFIELD COUNTY, GA., ALLEGING AN INDEBTEDNESS DUE
AND OWING FROM PETITIONER FOR GOODS SOLD AND DELIVERED IN THE AMOUNT OF
$51,279.17.  SIMULTANEOUSLY WITH THE FILING OF THE COMPLAINT AND PRIOR
TO ITS SERVICE ON PETITIONER, RESPONDENT FILED AFFIDAVIT AND BOND FOR
PROCESS OF GARNISHMENT, NAMING THE FIRST NATIONAL BANK OF DALTON AS
GARNISHEE.  THE AFFIDAVIT ASSERTED THE DEBT AND "REASON TO APPREHEND
THE LOSS OF SAID SUM OR SOME PART THEREOF UNLESS PROCESS OF GARNISHMENT
ISSUES."  /2/  THE CLERK OF THE SUPERIOR COURT FORTHWITH ISSUED SUMMONS
OF GARNISHMENT TO THE BANK, WHICH WAS SERVED THAT DAY.  ON AUGUST 23,
PETITIONER FILED A BOND IN THE SUPERIOR COURT CONDITIONED TO PAY ANY
FINAL JUDGMENT IN THE MAIN ACTION UP TO THE AMOUNT CLAIMED, AND THE
JUDGE OF THAT COURT THEREUPON DISCHARGED THE BANK AS GARNISHEE.  ON
SEPTEMBER 15, PETITIONER FILED A MOTION TO DISMISS THE WRIT OF
GARNISHMENT AND TO DISCHARGE ITS BOND, ASSERTING, AMONG OTHER THINGS,
THAT THE STATUTORY GARNISHMENT PROCEDURE WAS UNCONSTITUTIONAL IN THAT
IT VIOLATED "DEFENDANT'S DUE PROCESS AND EQUAL PROTECTION RIGHTS
GUARANTEED HIM BY THE CONSTITUTION OF THE UNITED STATES AND THE
CONSTITUTION OF THE STATE OF GEORGIA."  APP. 11.  THE MOTION WAS HEARD
AND OVERRULED ON NOVEMBER 29.  THE GEORGIA SUPREME COURT, /3/  FINDING
THAT THE ISSUE OF THE CONSTITUTIONALITY OF THE STATUTORY GARNISHMENT
PROCEDURE WAS PROPERLY BEFORE IT, SUSTAINED THE STATUTE AND REJECTED
PETITIONER'S CLAIMS THAT THE STATUTE WAS INVALID FOR FAILURE TO PROVIDE
NOTICE AND HEARING IN CONNECTION WITH THE ISSUANCE OF THE WRIT OF
GARNISHMENT.  231 GA. 260, 201 S.E. 2D 321 (1973).  /4/  WE GRANTED
CERTIORARI.  417 U.S. 907 (1974).  WE REVERSE. 

THE GEORGIA COURT RECOGNIZED THAT SNIADACH V. FAMILY FINANCE CORP.,
395 U.S. 337 (1969), HAD INVALIDATED A STATUTE PERMITTING THE
GARNISHMENT OF WAGES WITHOUT NOTICE AND OPPORTUNITY FOR HEARING, BUT
CONSIDERED THAT CASE TO HAVE DONE NOTHING MORE THAN TO CARVE OUT AN
EXCEPTION, IN FAVOR OF WAGE EARNERS, "TO THE GENERAL RULE OF LEGALITY
OF GARNISHMENT STATUTES."  231 GA., AT 264; 201 S.E.2D, AT 323.  THE
GARNISHMENT OF OTHER ASSETS OR PROPERTIES PENDING THE OUTCOME OF THE
MAIN ACTION, ALTHOUGH THE EFFECT WAS TO "'IMPOUND (THEM) IN THE HANDS
OF THE GARNISHEE,'" ID., AT 263, 201 S.E.2D, AT 323, WAS APPARENTLY
THOUGHT NOT TO IMPLICATE THE DUE PROCESS CLAUSE. 

THIS APPROACH FAILED TO TAKE ACCOUNT OF FUENTES V. SHEVIN, 407 U.S.
67 (1972), A CASE DECIDED BY THIS COURT MORE THAN A YEAR PRIOR TO THE
GEORGIA COURT'S DECISION.  THERE THE COURT HELD INVALID THE FLORIDA AND
PENNSYLVANIA REPLEVIN STATUTES WHICH PERMITTED A SECURED INSTALLMENT
SELLER TO REPOSSESS THE GOODS SOLD, WITHOUT NOTICE OR HEARING AND
WITHOUT JUDICIAL ORDER OR SUPERVISION, BUT WITH THE HELP OF THE SHERIFF
OPERATING UNDER A WRIT ISSUED BY THE CLERK OF THE COURT AT THE BEHEST
OF THE SELLER.  THAT THE DEBTOR WAS DEPRIVED OF ONLY THE USE AND
POSSESSION OF THE PROPERTY, AND PERHAPS ONLY TEMPORARILY, DID NOT PUT
THE SEIZURE BEYOND SCRUTINY UNDER THE DUE PROCESS CLAUSE.  "THE
FOURTEENTH AMENDMENT DRAWS NO BRIGHT LINES AROUND THREE-DAY, 10-DAY, OR
50-DAY DEPRIVATIONS OF PROPERTY.  ANY SIGNIFICANT TAKING OF PROPERTY BY
THE STATE IS WITHIN THE PURVIEW OF THE DUE PROCESS CLAUSE."  ID., AT
86.  ALTHOUGH THE LENGTH OR SEVERITY OF A DEPRIVATION OF USE OR
POSSESSION WOULD BE ANOTHER FACTOR TO WEIGH IN DETERMINING THE
APPROPRIATE FORM OF HEARING, IT WAS NOT DEEMED TO BE DETERMINATIVE OF
THE RIGHT TO A HEARING OF SOME SORT.  BECAUSE THE OFFICIAL SEIZURES HAD
BEEN CARRIED OUT WITHOUT NOTICE AND WITHOUT OPPORTUNITY FOR A HEARING
OR OTHER SAFEGUARD AGAINST MISTAKEN REPOSSESSION, THEY WERE HELD TO BE
IN VIOLATION OF THE FOURTEENTH AMENDMENT. 

THE GEORGIA STATUTE IS VULNERABLE FOR THE SAME REASONS.  HERE, A
BANK ACCOUNT, SURELY A FORM OF PROPERTY, WAS IMPOUNDED AND, ABSENT A
BOND, PUT TOTALLY BEYOND USE DURING THE PENDENCY OF THE LITIGATION ON
THE ALLEGED DEBT, ALL BY A WRIT OF GARNISHMENT ISSUED BY A COURT CLERK
WITHOUT NOTICE OR OPPORTUNITY FOR AN EARLY HEARING AND WITHOUT
PARTICIPATION BY A JUDICIAL OFFICER. 

NOR IS THE STATUTE SAVED BY THE MORE RECENT DECISION IN MITCHELL V.
W.T. GRANT CO., 416 U.S. 600 (1974).  THAT CASE UPHELD THE LOUISIANA
SEQUESTRATION STATUTE WHICH PERMITTED THE SELLER-CREDITOR HOLDING A
VENDOR'S LIEN TO SECURE A WRIT OF SEQUESTRATION AND, HAVING FILED A
BOND, TO CAUSE THE SHERIFF TO TAKE POSSESSION OF THE PROPERTY AT
ISSUE.  THE WRIT, HOWEVER, WAS ISSUABLE ONLY BY A JUDGE UPON THE FILING
OF AN AFFIDAVIT GOING BEYOND MERE CONCLUSORY ALLEGATIONS AND CLEARLY
SETTING OUT THE FACTS ENTITLING THE CREDITOR TO SEQUESTRATION.  THE
LOUISIANA LAW ALSO EXPRESSLY ENTITLED THE DEBTOR TO AN IMMEDIATE
HEARING AFTER SEIZURE AND TO DISSOLUTION OF THE WRIT ABSENT PROOF BY
THE CREDITOR OF THE GROUNDS ON WHICH THE WRIT WAS ISSUED. 

THE GEORGIA GARNISHMENT STATUTE HAS NONE OF THE SAVING
CHARACTERISTICS OF THE LOUISIANA STATUTE.  THE WRIT OF GARNISHMENT IS
USSUABLE ON THE AFFIDAVIT OF THE CREDITOR OR HIS ATTORNEY, AND THE
LATTER NEED NOT HAVE PERSONAL KNOWLEDGE OF THE FACTS.  46 - 103.  THE
AFFIDAVIT, LIKE THE ONE FILED IN THIS CASE, NEED CONTAIN ONLY
CONCLUSORY ALLEGATIONS.  THE WRIT IS ISSUABLE, AS THIS ONE WAS, BY THE
COURT CLERK, WITHOUT PARTICIPATION BY A JUDGE.  UPON SERVICE OF THE
WRIT, THE DEBTOR IS DEPRIVED OF THE USE OF THE PROPERTY IN THE HANDS OF
THE GARNISHEE.  HERE A SIZABLE BANK ACCOUNT WAS FROZEN, AND THE ONLY
METHOD DISCERNIBLE ON THE FACE OF THE STATUTE TO DISSOLVE THE
GARNISHMENT WAS TO FILE A BOND TO PROTECT THE PLAINTIFF CREDITOR. 
THERE IS NO PROVISION FOR AN EARLY HEARING AT WHICH THE CREDITOR WOULD
BE REQUIRED TO DEMONSTRATE AT LEAST PROBABLE CAUSE FOR THE
GARNISHMENT.  INDEED, IT WOULD APPEAR THAT WITHOUT THE FILING OF A BOND
THE DEFENDANT DEBTOR'S CHALLENGE TO THE GARNISHMENT WILL NOT BE
ENTERTAINED, WHATEVER THE GROUNDS MAY BE.  /5/ 

RESPONDENT ALSO ARGUES THAT NEITHER FUENTES NOR MITCHELL IS APPOSITE
HERE BECAUSE EACH OF THOSE CASES DEALT WITH THE APPLICATION OF DUE
PROCESS PROTECTIONS TO CONSUMERS WHO ARE VICTIMS OF CONTRACTS OF
ADHESION AND WHO MIGHT BE IRREPARABLY DAMAGED BY TEMPORARY DEPRIVATION
OF HOUSEHOLD NECESSITIES, WHEREAS THIS CASE DEALS WITH ITS APPLICATION
IN THE COMMERCIAL SETTING TO A CASE INVOLVING PARTIES OF EQUAL
BARGAINING POWER.  SEE ALSO SNIADACH V. FAMILY FINANCE CORP., 395 U.S.
337 (1969).  IT IS ASSERTED IN ADDITION THAT THE DOUBLE BOND POSTED
HERE GIVES ASSURANCE TO PETITIONER THAT IT WILL BE MADE WHOLE IN THE
EVENT THE GARNISHMENT TURNS OUT TO BE UNJUSTIFIED.  IT MAY BE THAT
CONSUMERS DEPRIVED OF HOUSEHOLD APPLIANCES WILL MORE LIKELY SUFFER
IRREPARABLY THAN CORPORATIONS DEPRIVED OF BANK ACCOUNTS, BUT THE
PROBABILITY OF IRREPARABLE INJURY IN THE LATTER CASE IS SUFFICIENTLY
GREAT SO THAT SOME PROCEDURES ARE NECESSARY TO GUARD AGAINST THE RISK
OF INITIAL ERROR.  WE ARE NO MORE INCLINED NOW THAN WE HAVE BEEN IN THE
PAST TO DISTINGUISH AMONG DIFFERENT KINDS OF PROPERTY IN APPLYING THE
DUE PROCESS CLAUSE.  FUENTES V. SHEVIN, 407 U.S., AT 89 - 90. 

ENOUGH HAS BEEN SAID, WE THINK, TO REQUIRE THE REVERSAL OF THE
JUDGMENT OF THE GEORGIA SUPREME COURT.  THE CASE IS REMANDED TO THAT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/  THE RELEVANT PROVISIONS OF THE GEORGIA CODE ANNOTATED ARE AS
FOLLOWS:  46 - 101 

"RIGHT TO WRIT; WAGES EXEMPT UNTIL AFTER FINAL JUDGMENT 

"IN CASES WHERE SUIT SHALL BE PENDING, OR WHERE JUDGMENT SHALL HAVE
BEEN OBTAINED, THE PLAINTIFF SHALL BE ENTITLED TO THE PROCESS OF
GARNISHMENT UNDER THE FOLLOWING REGULATIONS:  PROVIDED, HOWEVER, NO
GARNISHMENT SHALL ISSUE AGAINST THE DAILY, WEEKLY OR MONTHLY WAGES OF
ANY PERSON RESIDING IN THIS STATE UNTIL AFTER FINAL JUDGMENT SHALL HAVE
BEEN HAD AGAINST SAID DEFENDANT: PROVIDED, FURTHER, THAT THE WAGES OF A
SHARE CROPPER SHALL ALSO BE EXEMPT FROM GARNISHMENT UNTIL AFTER FINAL
JUDGMENT SHALL HAVE BEEN HAD AGAINST SAID SHARE CROPPER:  PROVIDED,
FURTHER, THAT NOTHING IN THIS SECTION SHALL BE CONSTRUED AS ABRIDGING
THE RIGHT OF GARNISHMENT IN ATTACHMENT BEFORE JUDGMENT IS OBTAINED." 
46 - 102 

"AFFIDAVIT; NECESSITY AND CONTENTS.  BOND 

"THE PLAINTIFF, HIS AGENT, OR ATTORNEY AT LAW SHALL MAKE AFFIDAVIT
BEFORE SOME OFFICER AUTHORIZED TO ISSUE AN ATTACHMENT, OR THE CLERK OF
ANY COURT OF RECORD IN WHICH THE SAID GARNISHMENT IS BEING FILED OR IN
WHICH THE MAIN CASE IS FILED, STATING THE AMOUNT CLAIMED TO BE DUE IN
SUCH ACTION, OR ON SUCH JUDGMENT, AND THAT HE HAS REASON TO APPREHEND
THE LOSS OF THE SAME OR SOME PART THEREOF UNLESS PROCESS OF GARNISHMENT
SHALL ISSUE, AND SHALL GIVE BOND, WITH GOOD SECURITY, IN A SUM AT LEAST
EQUAL TO DOUBLE THE AMOUNT SWORN TO BE DUE, PAYABLE TO THE DEFENDANT IN
THE SUIT OR JUDGMENT, AS THE CASE MAY BE, CONDITIONED TO PAY SAID
DEFENDANT ALL COSTS AND DAMAGES THAT HE MAY SUSTAIN IN CONSEQUENCE OF
SUING OUT SAID GARNISHMENT, IN THE EVENT THAT THE PLAINTIFF SHALL FAIL
TO RECOVER IN TEH SUIT, OR IT SHALL APPEAR THAT THE AMOUNT SWORN TO BE
DUE ON SUCH JUDGMENT WAS NOT DUE, OR THAT THE PROPERTY OR MONEY SOUGHT
TO BE GARNISHED WAS NOT SUBJECT TO PROCESS OF GARNISHMENT.  NO PERSON
SHALL BE TAKEN AS SECURITY ON THE BOND WHO IS AN ATTORNEY FOR THE
PLAINTIFF OR A NONRESIDENT UNLESS THE NON-RESIDENT IS POSSESSED OF REAL
ESTATE IN THE COUNTY WHERE THE GARNISHMENT ISSUES OF THE VALUE OF THE
AMOUNT OF SUCH BOND."  46 - 103 

"AFFIDAVIT BY AGENT OR ATTORNEY 

"WHEN THE AFFIDAVIT SHALL BE MADE BY THE AGENT OR ATTORNEY AT LAW OF
THE PLAINTIFF, HE MAY SWEAR ACCORDING TO THE BEST OF HIS KNOWLEDGE AND
BELIEF, AND MAY SIGN THE NAME OF THE PLAINTIFF TO THE BOND, WHO SHALL
BE BOUND THEREBY IN THE SAME MANNER AS THOUGH HE HAD SIGNED IT
HIMSELF."  46 - 104 

"AFFIDAVIT AND BOND BY ONE OF FIRM, ETC. 

"WHEN THE DEBT FOR RECOVERY OF WHICH GARNISHMENT IS SOUGHT SHALL BE
DUE TO PARTNERS OR SEVERAL PERSONS JOINTLY, ANY ONE OF SAID PARTNERS OR
JOINT CREDITORS MAY MAKE THE AFFIDAVIT AND GIVE BOND IN THE NAME OF THE
PLAINTIFF, AS PRESCRIBED IN CASES OF ATTACHMENT."  46 - 401 

"DISSOLUTION OF GARNISHMENTS; BOND; JUDGMENT ON BOND 

"WHEN GARNISHMENT SHALL HAVE BEEN ISSUED, THE DEFENDANT MAY DISSOLVE
SUCH GARNISHMENT UPON FILING IN THE CLERK'S OFFICE OF THE COURT, OR
WITH THE JUSTICE OF THE PEACE, WHERE SUIT IS PENDING OR JUDGMENT WAS
OBTAINED, A BOND WITH GOOD SECURITY, PAYABLE TO THE PLAINTIFF,
CONDITIONED FOR THE PAYMENT OF ANY JUDGMENT THAT SHALL BE RENDERED ON
SAID GARNISHMENT.  THE PLAINTIFF MAY ENTER UP JUDGMENT UPON SUCH BOND
AGAINST THE PRINCIPAL AND SECURITIES, AS JUDGMENT MAY BE ENTERED
AGAINST SECURITIES UPON APPEAL, WHENEVER SAID PLAINTIFF SHALL OBTAIN
THE JUDGMENT OF THE COURT AGAINST THE PROPERTY OR FUNDS AGAINST WHICH
GARNISHMENT SHALL HAVE BEEN ISSUED." 

/2/ 

"SUPERIOR COURT OF WHITFIELD COUNTY GEORGIA, WHITFIELD COUNTY. 

"PERSONALLY APPEARED R.L. GOSTER, PRESIDENT OF DI-CHEM, INS., WHO ON
OATH SAYS THAT HE IS PRESIDENT OF DI-CHEM, INC., PLAINTIFF HEREIN AND
THAT NORTH GEORGIA FINISHING, INC., DEFENDANT, IS INDEBTED TO SAID
PLAINTIFF IN THE SUM OF $51,279.17 DOLLARS, PRINCIPAL, $. . . . . . . .
. . , INTEREST, $. . . . . . . . . . ATTORNEY'S FEES, AND $. . . . . .
. . . . COST AND THAT SAID PLAINTIFF HAS--A SUIT PENDING--RETURNABLE TO
THE SUPERIOR COURT OF WHITFIELD COUNTY, AND THAT AFFIANT HAS REASON TO
APPREHEND THE LOSS OF SAID SUM OR SOME PART THEREOF UNLESS PROCESS OF
GARNISHMENT ISSUES. 

"SWORN TO AND SUBSCRIBED BEFORE ME, THIS AUGUST 20, 1971.  "/S/ R.L.
FOSTER, AFFIANT.  "/S/ DUAL BROADRICK, CLERK "SUPERIOR COURT OF
WHITFIELD COUNTY."  APP. 3 - 4. 

/3/  APPEAL WAS TAKEN IN THE FIRST INSTANCE TO THE GEORGIA SUPREME
COURT.  THAT COURT, WITHOUT OPINION, TRANSFERRED THE CASE TO THE
GEORGIA COURT OF APPEALS.  THE LATTER COURT ISSUED AN OPINION 127 GA.
APP. 593, 194 S.E. 2D 508 (1972).  THE GEORGIA SUPREME COURT THEN
ISSUED CERTIORARI, 230 GA. 623, 198 S.E. 2D 284 (1973).     /4/
SUBSEQUENT TO THE GEORGIA SUPREME COURT'S DECISION IN THIS CASE, A
THREE-JUDGE FEDERAL COURT, SITTING IN THE NORTHERN DISTRICT OF GEORGIA
DECLARED THESE SAME STATUTORY PROVISIONS UNCONSTITUTIONAL.  MORROW
ELECTRIC CO. V. CRUSE, 370 F.SUPP.  639 (1974). 

/5/  PETITIONER SO ASSERTS, RELYING ON JACKSON V. BARKSDALE, 17 GA.
APP. 461, 87 S.E. 691 (1916); POWELL V. POWELL, 95 GA APP. 122, 97 S.E.
2D 193 (1957).  RESPONDENT, WITHOUT CITATION OF AUTHORITY STATES THAT
"COUNSEL COULD HAVE ATTACKED THE GARNISHMENT IN OTHER WAYS EITHER IN
THE STATE OR FEDERAL COURTS.  . . ."  BRIEF FOR RESPONDENT 5.     MR.
JUSTICE STEWART, CONCURRING. 

IT IS GRATIFYING TO NOTE THAT MY REPORT OF THE DEMISE OF FUENTES V.
SHEVIN, 407 U.S. 67, SEE MITCHELL V. W.T. GRANT CO., 416 U.S. 600, 629
636 (DISSENTING OPINION), SEEMS TO HAVE BEEN GREATLY EXAGGERATED.  CF.
S. CLEMENS, CABLE FROM EUROPE TO THE ASSOCIATED PRESS, QUOTED IN 2 A.
PAINE, MARK TWAIN:  A BIOGRAPHY 1039 (1912). 

MR. JUSTICE POWELL, CONCURRING IN THE JUDGMENT. 

I JOIN IN THE COURT'S JUDGMENT, BUT I CANNOT CONCUR IN THE OPINION
AS I THINK IT SWEEPS MORE BROADLY THAN IS NECESSARY AND APPEARS TO
RESUSCITATE FUENTES V. SHEVIN, 407 U.S. 67 (1972).  ONLY LAST TERM IN
MITCHELL V. W.T. GRANT, CO. 416 U.S. 600 (1974), THE COURT
SIGNIFICANTLY NARROWED THE PRECEDENTIAL SCOPE OF FUENTES.  IN MY
CONCURRENCE IN MITCHELL, I NOTED: 

"THE COURT'S DECISION TODAY WITHDRAWS SIGNIFICANTLY FROM THE FULL
REACH OF (FUENTES') PRINCIPLE, AND TO THIS EXTENT I THINK IT FAIR TO
SAY THAT THE FUENTES OPINION IS OVERRULED."  416 U.S., AT 623 (POSELL,
J., CONCURRING).  THREE DISSENTING JUSTICES, INCLUDING THE AUTHOR OF
FUENTES, WENT FURTHER IN THEIR DESCRIPTION OF THE IMPACT OF MITCHELL: 

"(THE COURT TODAY HAS UNMISTAKABLY OVERRULED A CONSIDERED DECISION
OF THIS COURT THAT IS BARELY TWO YEARS OLD, WITHOUT POINTING TO ANY
CHANGE . . . THAT MIGHT JUSTIFY THIS TOTAL DISREGARD OF STARE
DECISIS."  416 U.S., AT 635 (STEWART, J., DISSENTING).  THE COURT'S
OPINION IN THIS CASE, RELYING SUBSTANTIALLY ON FUENTES, SUGGESTS THAT
THAT DECISION WILL AGAIN BE READ AS CALLING INTO QUESTION MUCH OF THE
PREVIOUSLY SETTLED LAW GOVERNING COMMERCIAL TRANSACTIONS.  I CONTINUE
TO DOUBT WHETHER FUENTES STRIKES A PROPER BALANCE, ESPECIALLY IN CASES
WHERE THE CREDITOR'S INTEREST IN THE PROPERTY MAY BE AS SIGNIFICANT OR
EVEN GREATER THAN THAT OF THE DEBTOR.  NOR DO I DIND IT NECESSARY TO
RELEGATE MITCHELL TO ITS NARROW FACTUAL SETTING IN ORDER TO DETERMINE
THAT THE GEORGIA GARNISHMENT STATUTES FAIL TO SATISFY THE REQUIREMENTS
OF PROCEDURAL DUE PROCESS. 

AS WE OBSERVED IN MITCHELL, THE TRADITIONAL VIEW OF PROCEDURAL DUE
PROCESS HAD BEEN THAT "'(WHERE ONLY PROPERTY RIGHTS ARE INVOLVED, MERE
POSTPONEMENT OF THE JUDICIAL ENQUIRY IS NOT A DENIAL OF DUE PROCESS, IF
THE OPPORTUNITY GIVEN FOR ULTIMATE JUDICIAL DETERMINATION OF LIABILITY
IS ADEQUATE.'"  ID., AT 611, QUOTING PHILLIPS V. COMMISSIONER, 283 U.S.
589, 596 - 597 (1931).  CONSISTENT WITH THIS VIEW, THE COURT IN THE
PAST UNANIMOUSLY APPROVED PREJUDGMENT ATTACHMENT LIENS SIMILAR TO THOSE
AT ISSUE IN THIS CASE.  MCKAY V. MCINNES, 279 U.S. 820 (1929); COFFIN
BROS. V. BENNETT, 277 U.S. 29 (1928); OWNBEY V. MORGAN, 256 U.S. 94
(1921).  SEE GENERALLY MITCHELL, SUPRA, AT 613 - 614.  BUT THE RECENT
EXPANSION OF CONCEPTS OF PROCEDURAL DUE PROCESS REQUIRES A MORE CAREFUL
ASSESSMENT OF THE NATURE OF THE GOVERNMENTAL FUNCTION SERVED BY THE
CHALLENGED PROCEDURE AND OF THE COSTS THE PROCEDURE EXACTS OF PRIVATE
INTERESTS.  SEE, E.G., GOLDBERG V. KELLY, 397 U.S. 254, 263 - 266
(1970); CAFETERIA WORKERS V. MCELROY, 367 U.S. 886, 895 (1961).  UNDER
THIS ANALYSIS, THE GEORGIA PROVISIONS CANNOT STAND. 

GARNISHMENT AND ATTACHMENT REMEDIES AFFORD THE ACTUAL OR POTENTIAL
JUDGMENT CREDITOR A MEANS OF ASSURING, UNDER APPROPRIATE CIRCUMSTANCES,
THAT THE DEBTOR WILL NOT REMOVE FROM THE JURISDICTION, ENCUMBER, OR
OTHERWISE DISPOSE OF CERTAIN ASSETS THEN AVAILABLE TO SATISFY THE
CREDITOR'S CLAIM.  /1/  GARNISHMENT MAY HAVE A SERIOUSLY ADVERSE IMPACT
ON THE DEBTOR, DEPRIVING HIM OF THE USE OF HIS ASSETS DURING THE PERIOD
THAT IT APPLIES.  BUT THIS FACT ALONE DOES NOT GIVE RISE TO
CONSTITUTIONAL OBJECTION.  THE STATE'S LEGITIMATE INTEREST IN
FACILITATING CREDITOR RECOVERY THROUGH THE PROVISION OF GARNISHMENT
REMEDIES HAS NEVER BEEN SERIOUSLY QUESTIONED. 

PREGARNISHMENT NOTICE AND A PRIOR HEARING HAVE NOT BEEN
CONSTITUTIONALLY MANDATED IN THE PAST.  DESPITE THE AMBIGUITY
ENGENDERED BY THE COURT'S RELIANCE ON FUENTES, I DO NOT INTERPRET ITS
OPINION TODAY AS IMPOSING THESE REQUIREMENTS FOR THE FUTURE.  /2/  SUCH
RESTRICTIONS, ANTITHETICAL TO THE VERY PURPOSE OF THE REMEDY, WOULD
LEAVE LITTLE EFFICACY TO THE GARNISHMENT AND ATTACHMENT LAWS OF THE 50
STATES. 

IN MY VIEW, PROCEDURAL DUE PROCESS WOULD BE SATISFIED WHERE STATE
LAW REQUIRES THAT THE GARNISHMENT BE PRECEDED BY THE GARNISHOR'S
PROVISION OF ADEQUATE SECURITY AND BY HIS ESTABLISHMENT BEFORE A
NEUTRAL OFFICER /3/  OF A FACTUAL BASIS OF THE NEED TO RESORT TO THE
REMEDY AS A MEANS OF PREVENTING REMOVAL OR DISSIPATION OF ASSETS
REQUIRED TO SATISFY THE CLAIM.  DUE PROCESS FURTHER REQUIRES THAT THE
STATE AFFORD AN OPPORTUNITY FOR A PROMPT POST-GARNISHMENT JUDICIAL
HEARING IN WHICH THE GARNISHOR HAS THE BURDEN OF SHOWING PROBABLE CAUSE
TO BELIEVE THERE IS A NEED TO CONTINUE THE GARNISHMENT FOR A SUFFICIENT
PERIOD OF TIME TO ALLOW PROOF AND SATISFACTION OF THE ALLEGED DEBT. 
SINCE THE GARNISHED ASSETS MAY BEAR NO RELATION TO THE CONTROVERSY
GIVING RISE TO THE ALLEGED DEBT, THE STATE ALSO SHOULD PROVIDE THE
DEBTOR AN OPPORTUNITY TO FREE THOSE ASSETS BY POSTING ADEQAUATE
SECURITY IN THEIR PLACE. 

THE GEORGIA PROVISIONS FALL SHORT OF THESE REQUIREMENTS. 
GARNISHMENT MAY ISSUE ON THE BASIS OF A SIMPLE AND CONCLUSORY AFFIDAVIT
THAT THE GARNISHOR HAS REASON TO APPREHEND THE LOSS OF MONEY ALLEGEDLY
OWED.  SEE GA. CODE ANN. 46 - 101, SET FORTH IN FULL IN THE COURT'S
OPINION, ANTE, AT 602 N. 1.  AS SHOWN BY THE AFFIDAVIT FILED IN THIS
CASE, SEE ANTE, AT 604 N. 2, AN UNREVEALING ASSERTION OF APPREHENSION
OF LOSS SUFFICES TO INVOKE THE ISSUANCE OF GARNISHMENT.  /4/  THIS IS
INSUFFICIENT TO ENABLE A NEUTRAL OFFICER TO MAKE EVEN THE MOST
SUPERFICIAL PRELIMINARY ASSESSMENT OF THE CREDITOR'S ASSERTED NEED. 
/5/ 

THE MOST COMPELLING DEFICIENCY IN THE GEORGIA PROCEDURE IS ITS
FAILURE TO PROVIDE A PROMPT AND ADEQUATE POSTGARNISHMENT HEARING. 
UNDER GEORGIA LAW, GARNISHMENT IS A SEPARATE PROCEEDING BETWEEN THE
GARNISHOR AND THE GARNISHEE.  THE DEBTOR IS NOT A PARTY AND CAN
INTERVENE ONLY BY FILING A DISSOLUTION BOND AND SUBSTITUTING HIMSELF
FOR THE GARNISHEE.  LEAKE V. TYNER, 112 GA. 919, 38 S.E. 343 (1901);
POWELL V. POWELL, 95 GA. APP. 122, 97 S.E. 2D 193 (1957).  AS NOTED
ABOVE, THE ISSUANCE OF THE GARNISHMENT MAY IMPOSE SERIOUS HARDSHIP ON
THE DEBTOR.  IN THIS CONTEXT, DUE PROCESS PRECLUDES IMPOSING THE
ADDITIONAL BURDEN OF CONDITIONING THE DEBTOR'S ABILITY TO QUESTION THE
VALIDITY OF ITS ISSUANCE OR CONTINUATION ON THE FILING OF A BOND. 
MOREOVER, THE GEORGIA STATUTE CONTAINS NO PROVISION ENABLING THE DEBTOR
TO OBTAIN PROMPT DISSOLUTION OF THE GARNISHMENT UPON A SHOWING OF FACT,
/6/  NOR ANY INDICATION THAT THE GARNISHOR BEARS THE BURDEN OF PROVING
ENTITLEMENT TO THE GARNISHMENT. 

I CONSIDER THE COMBINATION OF THESE DEFICIENCIES TO BE FATAL TO THE
GEORGIA STATUTE.  QUITE SIMPLY, THE GEORGIA PROVISIONS FAIL TO AFFORD
FUNDAMENTAL FAIRNESS IN THEIR ACCOMODATION OF THE RESPECTIVE INTERESTS
OF CREDITOR AND DEBTOR.  FOR THESE REASONS, I JOIN IN THE JUDGMENT OF
THE COURT. 

/1/  GARNISHMENT AND ATTACHMENT REMEDIES ALSO SERVE TO INSURE THAT
THE STATE WILL RETAIN JURISDICTION TO ADJUDICATE THE UNDERLYING
CONTROVERSY.  THE ADVENT OF THE MORE LIBERAL INTERPRETATION OF THE
STATES'  POWER TO EXERT JURISDICTION OVER NONRESIDENTS WHO ARE NOT
PRESENT IN THE STATE, INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S.
310 (1945), DIMINISHES THE IMPORTANCE OF THIS FUNCTION. 

/2/  THE COURT ALSO CITES SNIADACH V. FAMILY FINANCE CORP., 395 U.S.
337 (1969), WHICH ESTABLISHED AN EXCEPTION FOR GARNISHMENT OF AN
INDIVIDUAL'S WAGES.  IN SUCH CASES, THE DUE PROCESS CLAUSE REQUIRES
NOTICE AND A HEARING PRIOR TO APPLICATION OF THE GARNISHMENT REMEDY. 
AS THE OPINION INSELF INDICATES, HOWEVER, THE SNIADACH RULE IS LIMITED
TO WAGES, "A SPECIALIZED TYPE OF PROPERTY PRESENTING DISTINCT PROBLEMS
IN OUR ECONOMIC SYSTEM."  ID., AT 340.  THE COURT DID NOT PURPORT TO
IMPOSE REQUIREMENTS OF PREGARNISHMENT NOTICE AND HEARING IN OTHER
INSTANCES.  IBID I THEREFORE DO NOT CONSIDER SNIADACH TO BE MORE THAN
PERIPHERALLY RELEVANT TO THE PRESENT CASE. 

/3/  I AM NOT IN ACCORD WITH THE COURT'S SUGGESTION THAT THE DUE
PROCESS CLAUSE MIGHT REQUIRE THAT A JUDICIAL OFFICER ISSUE THE WRIT OF
GARNISHMENT.  THE BASIC PROTECTION REQUIRED FOR THE DEBTOR IS THE
ASSURANCE OF A PROMPT POSTGARNISHMENT HEARING BEFORE A JUDGE.  SUCH A
HEARING AFFORDS AN OPPORTUNITY TO RECTIFY ANY ERROR IN THE INITIAL
DECISION TO ISSUE THE GARNISHMENT.  WHEN COMBINED WITH THE AVAILABILITY
OF THE GARNISHOR'S BOND TO COMPENSATE FOR ANY HARM CAUSED, THE
POSSIBILITY OF PROMPT CORRECTION OF POSSIBLE ERROR SUFFICES TO SATISFY
THE REQUIREMENTS OF PROCEDURAL DUE PROCESS IN THIS CONTEXT.  IT THUS
SHOULD BE SUFFICIENT FOR A CLERK OR OTHER OFFICER OF THE COURT TO ISSUE
THE ORIGINAL WRIT UPON THE FILING OF A PROPER AFFIDAVIT. 

/4/  THE GEORGIA COURTS HAVE NOT AMPLIFIED THE STATUTORY AFFIDAVIT
REQUIREMENT THROUGH THE PROCESS OF JUDICIAL CONSTRUCTION.  SEE WILSON
V. FULTON METAL BED MFG. CO., 88 GA. APP. 884, 886, 78 S.E. 2D 360, 362
(1953). 

/5/  SINCE GARNISHMENT CAN ISSUE IN GEORGIA ONLY IN CASES IN WHICH
SUIT IS PENDING OR JUDGMENT HAS BEEN RENDERED, SEE GA. CODE ANN. 46 -
101, THE ISSUING OFFICER NEED NOT PRELIMINARILY INQUIRE INTO THE
ALLEGATION OF THE EXISTENCE OF A DEBT.  NOR DO I CONTEMPLATE THAT THE
INITIAL SHOWING OF PROBABLE INABILITY TO COLLECT THE DEBT ABSENT THE
ISUANCE OF THE GARNISHMENT NEED BE ELABORATE. 

THE FACTS OF THIS CASE SERVE TO ILLUSTRATE THE POINT.  FROM THE
RECORD AND ORAL AUGUMENT, IT APPEARS THAT THE RESPONDENT FEARED THAT
THE ONLY ACCESSIBLE AND UNENCUMBERED ASSETS OF THE NORTH GEORGIA
FINISHING COMPANY WERE ITS BANK ACCOUNTS.  AT ORAL ARGUMENT, COUNSEL
FOR PETITIONER INDICATED THAT NORTH GEORGIA FINISHING CO.'S HOLDINGS IN
REAL ESTATE AND TANGIBLE PROPERTY IN THE STATE OF GEORGIA WERE
ENCUMBERED BY MORTGAGES AND FACTORING CONTRACTS.  IT THUS APPEARS THAT
RESPONDENT'S APPREHENSION OF EVENTUAL INABILITY TO RECOVER THE DEBT MAY
WELL HAVE BEEN ENTIRELY SUFFICIENT TO JUSTIFY THE GARNISHMENT FOR THE
BRIEF PERIOD REQUIRED TO CONDUCT THE POST-GARNISHMENT HEARING. 

BANK ACCOUNTS ARE READILY SUSCEPTIBLE TO ALMOST IMMEDIATE TRANSFER
OR DISSIPATION, AND THIS OCCURRENCE IS OFTEN A LIKELIHOOD WHERE THE
DEBTOR IS A FOREIGN CORPORATION OR A NONRESIDENT OF THE STATE.  AN
AFFIDAVIT IN SUPPORT OF THE GARNISHMENT OR ATTACHMENT OF A NON
RESIDENT'S BANK ACCOUNT WOULD NORMALLY BE SUFFICIENT FOR THE WRIT IF IT
AVERRED THAT OTHER LESS TRANSITORY ASSETS WERE NOT AVAILABLE WITHIN THE
STATE TO SATISFY ANY PROSPECTIVE JUDGMENT. 

/6/  PETITIONER ASSERTS, WITHOUT CONTRADICTION BY THE RESPONDENT,
THAT GEORGIA LAW DOES NOT AUTHORIZE THE ALLEGED DEBTOR TO QUESTION THE
FACTS CONTAINED IN THE GARNISHOR'S AFFIDAVIT OR TO MAKE A CONTRARY
SUBMISSION OF FACT INDICATING THAT THE GARNISHOR'S APPREHENSION OF
POSSIBLE LOSS IS MISCONCEIVED OR IS INSUFFICIENT TO WARRANT THE
CONTINUATION OF THE WRIT OF GARNISHMENT. 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

THE COURT ONCE AGAIN--FOR THE THIRD TIME IN LESS THAN THREE YEARS-
STRUGGLES WITH WHAT IT REGARDS AS THE DUE PROCESS ASPECTS OF A STATE'S
OLD AND LONG-UNATTACKED COMMERICAL STATUTES DESIGNED TO AFFORD A WAY
FOR RELIEF TO A CREDITOR AGAINST A DELINQUENT DEBTOR.  ON THIS THIRD
OCCASION, THE COURT, IT SEEMS TO ME, DOES LITTLE MORE THAN MAKE VERY
GENERAL AND VERY SPARSE COMPARISIONS OF THE PRESENT CASE WITH FUENTES
V. SHEVIN, 407 U.S. 67 (1972), ON THE ONE HAND, AND WITH MITCHELL V.
W.T. GRANT CO., 416 U.S. 600 (1974), ON THE OTHER; CONCLUDES THAT THIS
CASE RESEMBLES FUENTES MORE THAN IT DOES MITCHELL; AND THEN STRIKES
DOWN THE GEORGIA STATUTORY STRUCTURE AS OFFENSIVE TO DUE PROCESS.  ONE
GAINS THE IMPRESSION, PARTICULARLY FROM THE FINAL PARAGRAPH OF ITS
OPINION, THAT THE COURT IS ENDEAVORING TO SAY AS LITTLE AS POSSIBLE IN
EXPLAINING JUST WHY THE SUPREME COURT OF GEORGIA IS BEING REVERSED. 
AND, AS A RESULT, THE CORRESPONDING COMMERCIAL STATUTES OF ALL OTHER
STATES, SIMILAR TO BUT NOT EXACTLY LIKE THOSE OF FLORIDA OR
PENNSYLVANIA OR LOUISIANA OR GEORGIA, ARE LEFT IN QUESTIONABLE
CONSTITUTIONAL STATUS, WITH LITTLE OR NO APPLICABLE STANDARD BY WHICH
TO MEASURE AND DETERMINE THEIR VALIDITY UNDER THE FOURTEENTH
AMENDMENT.  THIS, IT SEEMS TO ME, IS AN UNDESIRABLE STATE OF AFFAIRS,
AND I DISSENT.  I DO SO FOR A NUMBER OF REASONS: 

1.  SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337 (1969), MENTIONED
IN PASSING BY THE COURT IN ITS PRESENT OPINION, ANTE, AT 605 - 606, WAS
CORRECTLY REGARDED BY THE GEORGIA SUPREME COURT, 231 GA. 260, 263 -
264, 201 S.E. 2D 321, 323, AS A CASE RELATING TO THE GARNISHMENT OF
WAGES.  THE OPINION IN SNIADACH MAKES THIS EMPHASIS: 

"WE DEAL HERE WITH WAGES--A SPECIALIZED TYPE OF PROPERTY PRESENTING
DISTINCT PROBLEMS IN OUR ECONOMIC SYSTEM.  WE TURN THEN TO THE NATURE
OF THAT PROPERTY AND PROBLEMS OF PROCEDURAL DUE PROCESS."  395 U.S., AT
340.  IT GOES ON TO SPEAK OF POSSIBLE "TREMENDOUS HARDSHIP ON WAGE
EARNERS WITH FAMILIES TO SUPPORT," IBID., AND THE "ENORMOUS" LEVERAGE
OF THE CREDITOR "ON THE WAGE EARNER," ID., AT 341.  SNIADACH SHOULD BE
ALLOWED TO REMAIN IN ITS NATURAL ENVIRONMENT--WAGES--AND NOT BE
EXPANDED TO ARM'S-LENGTH RELATIONSHIPS BETWEEN BUSINESS ENTERPRISES OF
SUCH FINANCIAL CONSEQUENCE AS NORTH GEORGIA FINISHING AND DI-CHEM. 
2.  THE COURT, ANTE, AT 606, REGARDS THE NARROW LIMITAIONS OF SNIADACH
AS AFFECTED BY FUENTES.  IT ALSO BOWS TO MORROW ELECTRIC CO. V. CRUSE,
370 F. SUPP. 639 (ND GA. 1974), AND THE THREE-JUDGE HOLDING THERE THAT
THE GEORGIA STATUTES BEFORE US ARE UNCONSTITUTIONAL.  ANTE, AT 605 N.
4.  INDEED, PERHAPS SNIADACH FOR A TIME WAS SO EXPANDED (SOMEWHAT
SURPRISINGLY, I AM SURE, TO THE SNIADACH COURT) BY THE IMPLICATIONS AND
OVERTONES OF FUENTES.  BUT MITCHELL CAME ALONG AND MORROW WAS MORE THAN
THREE MONTHS PRE-MITCHELL.  SNIADACH'S EXPANSION WAS SURELY LESS UNDER
MITCHELL THAN IT MIGHT HAVE APPEARED TO BE UNDER FUENTES. 

3.  I WOULD HAVE THOUGHT THAT, WHATEVER FUENTES MAY HAVE STOOD FOR IN
THIS AREA OF DEBTOR-CREDITOR COMMERCIAL RELATIONSHIPS, WITH ITS 4 - 3
VOTE BY A BOBTAILED COURT, IT WAS SUBSTANTIALLY CUT BACK BY MITCHELL. 
CERTAINLY, MR. JUSTICE STEWART, THE AUTHOR OF FUENTES AND THE WRITER OF
THE DISSENTING OPINION IN MITCHELL, THOUGHT SO: 

     "THE DEPRIVATION OF PROPERTY IN THIS CASE IS IDENTICAL TO THAT

  AT ISSUE IN FUENTES, AND THE COURT DOES NOT SAY OTHERWISE."  416

  U.S., AT 631. 

  "IN SHORT, THIS CASE IS CONSTITUTIONALLY INDISTINGUISHABLE FROM

  FUENTES V. SHEVIN, AND THE COURT TODAY HAS SIMPLY REJECTED THE

  REASONING OF THAT CASE AND ADOPTED INSTEAD THE ANALYSIS OF THE

  FUENTES DISSENT."  ID., AT 634. 

    "YET THE COURT TODAY HAS UNMISTAKABLY OVERRULED A CONSIDERED

  DECISION OF THIS COURT THAT IS BARELY TWO YEARS OLD . . . . THE

  ONLY PERCEIVABLE CHANGE THAT HAS OCCURRED SINCE THE FUENTES CASE

  IS IN THE MAKEUP OF THIS COURT."  ID., AT 635. 

SURELY, MR. JUSTICE BRENNAN THOUGHT SO WHEN HE ASSERTED IN DISSENT THAT
HE WAS "IN AGREEMENT THAT FUENTES . . . REQUIRES REVERSAL" OF THE
LOUISIANA JUDGMENT.  ID., AT 636.  AND SURELY, MR. JUSTICE POWELL
THOUGHT SO, SUBSTANTIALLY, WHEN, IN HIS CONCURRENCE, HE OBWERVED: 

"THE COURT'S DECISION TODAY WITHDRAWS SIGNIFICANTLY FROM THE FULL
REACH OF (THE FUENTES) PRINCIPLE, AND TO THIS EXTENT I THINK IT FAIR TO
SAY THAT THE FUENTES OPINION IS OVERRULED."  ID., AT 623. 

I ACCEPT THE VIEWS OF THESE DISSENTING AND CONCURRING JUSTICES IN
MITCHELL THAT FUENTES AT LEAST WAS SEVERELY LIMITED BY MITCHELL, AND I
CANNOT REGARD FUENTES AS OF MUCH INFLUENCE OR PRECEDENT FOR THE PRESENT
CASE. 

4.  FUENTES, A CONSTITUTIONAL DECISION, OBVIOUSLY SHOULD NOT HAVE
BEEN BROUGHT DOWN AND DECIDED BY A 4 - 3 VOTE WHEN THERE WERE TWO
VACANCIES ON THE COURT AT THE TIME OF AUGUMENT.  IT PARTICULARLY SHOULD
NOT HAVE BEEN DECIDED BY A 4 - 3 VOTE WHEN JUSTICES FILLING THE VACANT
SEATS HAD QUALIFIED AND WERE ON HAND AND AVAILABLE TO PARTICIPATE ON
REARGUMENT.  /1/  ANNOUNCING THE CONSTITUTIONAL DECISION, WITH A FOUR
JUSTICE MAJORITY OF A SEVEN-JUSTICE SHORTHANDED COURT, DID VIOLENCE TO
MR. CHIEF JUSTICE MARSHALL'S WISE ASSURANCE, IN BRISCOE V.
COMMONWEALTH'S BANK OF KENTUCKY, 8 PET. 118, 122 (1834), THAT THE
PRACTICE OF THE COURT "EXCEPT IN CASES OF ABSOLUTE NECESSITY"  IS NOT
TO DECIDE A CONSTITUTIONAL QUESTION UNLESS THERE IS A MAJORITY "OF THE
WHOLE COURT." 

THE COURT ENCOUNTERED THE SAME SITUATION A CENTURY AGO WITH RESPECT
TO THE LEGAL TENDER CASES; MISHANDLED THE DECISIONAL PROCES SIMILARLY;
AND CAME TO REGRET THE ERROR.  ORIGINALLY, IN HEPBURN V. GRISWOLD, 8
WALL.  603 (1870), /2/  THE COURT, ASSERTEDLY BY A 5 - 3 VOTE, WITH ONE
VACANCY, HELD THE LEGAL TENDER ACT OF 1862, 12 STAT. 345, TO BE
UNCONSTITUTIONAL WITH RESPECT TO PRIOR DEBTS.  MR. JUSTICE GRIER, WHO
WAS IN FAILING HEALTH, WAS NOTED AS CONCURRING.  8 WALL., AT 626.  IT
WAS STATED THAT THE CASE "WAS DECIDED IN CONFERENCE" ON NOVEMBER 27,
1869, AND THE OPINION "DIRECTED TO BE READ" ON JANUARY 29, 1870.  IBID.
MR. JUSTICE GRIER, HOWEVER, HAD SUBMITTED HIS RESIGNATION TO THE
PRESIDENT IN DECEMBER 1869, EFFECTIVE FEBRUARY 1, 1870, AND IT HAD BEEN
ACCEPTED ON DECEMBER 15.  THE JUSTICE LAST SAT ON JANUARY 31.  8 WALL.,
AT VII - VIII.  THE OPINION AND JUDGMENT IN HEPBURN ACTUALLY WERE
RENDERED ON FEBRUARY 7, WHEN MR. JUSTICE BRIER WAS NO LONGER ON THE
BENCH. 

A YEAR LATER, WITH THE TWO VACANCIES FILLED, THE COURT, BY A 5 - 4
VOTE, OVERRULED HEPBURN AND HELD THE LEGAL TENDER ACT CONSTITUTIONAL
WITH RESPECT TO ALL DEBTS.  LEGAL TENDER CASES, 12 WALL.  457 (1871). 
THE COURT SAID: 

"THAT CASE (HEPBURN V. GRISWOLD) WAS DECIDED BY A DIVIDED COURT, AND
BY A COURT HAVING A LESS NUMBER OF JUDGES THAN THE LAW THEN IN
EXISTENCE PROVIDED THIS COURT SHALL HAVE.  . . . WE HAVE BEEN IN THE
HABIT OF TREATING CASES INVOLVING A CONSIDERATION OF CONSTITUTIONAL
POWER DIFFERENTLY FROM THOSE WHICH CONCERN MERELY PRIVATE RIGHT (CITING
BRISCOE V. COMMONWEALTH'S BANK OF KENTUCKY).  WE ARE NOT ACCUSTOMED TO
HEAR THEM IN THE ABSENCE OF A FULL COURT, IF IT CAN BE AVOIDED."  ID.,
AT 553 - 554.  THE FAILURE IN HEPBURN TO RECALL OR ADHERE TO THE
PRACTICE ANNOUNCED BY THE MARSHALL COURT RESULTED IN CONFUSION, PROMPT
REVERSAL OF POSITION, EMBARRASSMENT, AND RECRIMINATION.  SEE THE
OPINION OF MR. CHIEF JUSTICE CHASE IN DISSENT.  12 WALL., AT 572.  /3/ 

LATER, MR. JUSTICE BURTON CALLED ATTENTION TO THIS LAPSE AND
HEARTILY ENDORSED THE PRACTICE OF WITHHOLDING DECISION ON A
CONSTITUTIONAL ISSUE BY LESS THAN A MAJORITY OF A FULL COURT, THAT IS,
TODAY, BY LESS THAN FIVE VOTES WHEN VACANCIES EXIST AND ARE WAITING TO
BE FILLED OR HAVE BEEN FILLED.  BURTON, THE LEGAL TENDER CASES:  A
CELEBRATED SUPREME COURT REVERSAL, 42 A.B.A.J. 231 (1956), REPRINTED AS
CHAPTER IX IN THE OCCASIONAL PAPERS OF MR. JUSTICE BURTON (E. HUDON ED.
1969).  WE ALLOWED HIS ADVICE, AS WELL AS THAT OF THE MARSHALL COURT,
TO GO UNHEEDED WHEN WE PERMITTED FUENTES TO COME DOWN WITH ONLY FOUR
SUPPORTING VOTES WHEN A NINE-JUSTICE COURT ALREADY WAS AVAILABLE ON ANY
REARGUMENT. 

THE ADMONITION OF THE GREAT CHIEF JUSTICE, IN MY VIEW, SHOULD
OVERRIDE ANY NATURAL, AND PERHAPS UNDERSTANDABLE, EAGERNESS TO DECIDE. 
HAD WE BOWED TO THAT WISDOM WHEN FUENTES WAS BEFORE US, AND WAITED A
BRIEF TIME FOR REARGUMENT BEFORE A FULL COURT, WHATEVER ITS DECISION
MIGHT HAVE BEEN, I VENTURE TO SUGGEST THAT WE WOULD NOT BE IMMERSED IN
CONFUSION, WITH FUENTES ONE WAY, MITCHELL ANOTHER, AND NOW THIS CASE
DECIDED IN A MANNER THAT LEAVES COUNSEL AND THE COMMERCIAL COMMUNITIES
IN OTHER STATES UNCERTAIN AS TO WHETHER THEIR OWN ESTABLISHED AND LONG
ACCEPTED STATUTES PASS CONSTITUTIONAL MUSTER WITH A WAVERING TRIBUNAL
OFF IN WASHINGTON, D.C.  THIS COURT SURELY FAILS IN ITS INTENDED
PURPOSE WHEN CONFUSING RESULTS OF THIS KIND ARE FORTHCOMING AND ARE
IMPOSED UPON THOSE WHO OWE AND THOSE WHO LEND. 

5.  NEITHER DO I CONCLUDE THAT, BECAUSE THIS IS A GARNISHMENT CASE,
RATHER THAN A LIEN OR VENDOR-VENDEE CASE, IT IS AUTOMATICALLY
CONTROLLED BY SNIADACH.  SNIADACH, AS HAS BEEN NOTED, CONCERNED AND
REEKS OF WAGES.  NORTH GEORGIA FINISHING IS NO WAGE EARNER.  IT IS A
CORPORATION ENGAGED IN BUSINESS.  IT WAS PROTECTED (A) BY THE FACT THAT
THE GARNISHMENT PROCEDURE MAY BE INSTITUTED IN GEORGIA ONLY AFTER THE
PRIMARY SUIT HAS BEEN FILED OR JUDGMENT OBTAINED BY THE CREDITOR, THUS
PLACING ON THE CREDITOR THE OBLIGATION TO INITIATE THE PROCEEDINGS AND
THE BURDEN OF PROOF, AND ASSURING A FULL HEARING TO THE DEBTOR; (B) BY
THE RESPONDENT'S STATUTORILY REQUIRED AND DEPOSITED DOUBLE BOND; AND
(C) BY THE REQUIREMENT OF THE RESPONDENT'S AFFIDAVIT OF APPREHENSION OF
LOSS.  IT WAS IN A POSITION TO DISSOLVE THE GARNISHMENT BY THE FILING
OF A SINGLE BOND.  THESE ARE TRANSACTIONS OF A DAY-TO-DAY TYPE IN THE
COMMERCIAL WORLD.  THEY ARE NOT SITUATIONS INVOLVING CONTRACTS OF
ADHESION OR BASIC UNFAIRNESS, IMBALANCE, OR INEQUALITY.  SEE D.H.
OVERMYER CO. V. FRICK CO., 405 U.S. 174 (1972); SWARB V. LENNOX, 405
U.S. 191 (1972).  THE CLERK-JUDGE DISTINCTION, RELIED ON BY THE COURT,
SURELY IS OF LITTLE SIGNIFICANCE SO LONG AS THE COURT OFICER IS NOT AN
AGENT OF THE CREDITOR.  THE GEORGIA SYSTEM, FOR ME, AFFORDS COMMERCIAL
ENTITIES ALL THE PROTECTION THAT IS REQUIRED BY THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT. 

6.  DESPITE ITS APPARENT DISCLAIMER, THE COURT NOW HAS EMBARKED ON A
CASE-BY-CASE ANALYSIS (WEIGHTED HEAVILY IN FAVOR OF FUENTES AND WITH
LITTLE HOPE UNDER MITCHELL) OF THE RESPECTIVE STATE STATUTES IN THIS
AREA.  THAT ROAD IS A LONG AND UNREWARDING ONE, AND PROVIDES NO
SATISFACTORY ANSWERS TO ISSUES OF CONSTITUTIONAL MAGNITUDE. 

I WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF GEORGIA. 

/1/  FUENTES WAS DECIDED JUNE 12, 1972.  MR. JUSTICE POWELL AND MR.
JUSTICE REHNQUIST HAD TAKEN THEIR RESPECTIVE SEATS AS MEMBERS OF THE
COURT FIVE MONTHS BEFORE, ON JANUARY 7.  404 U.S. XI - XVII.  FUENTES
HAD BEEN ARGUED NOVEMBER 9, 1971. 

/2/  SEE ALSO BRODERICK'S EXECUTOR V. MAGRAW, 8 WALL.  639 (1870). 

/3/  MR. CHIEF JUSTICE HUGHES DESCRIBED THE RESULT IN THE LEGAL
TENDER CASES AS ONE OF "THREE NOTABLE INSTANCES (IN WHICH) THE COURT
HAS SUFFERED SEVERELY FROM SELF-INFLICTED WOUNDS."  C. HUGHES, THE
SUPREME COURT OF THE UNITED STATES 50 (1928).  THE OTHERS HE NAMED WERE
THE DRED SCOTT DECISION, SCOTT V. SANDFORD, 19 HOW.  393 (1857), AND
THE INCOME TAX CASE, POLLOCK V. FARMERS' LOAN & TRUST CO., 157 U.S. 429
(1895); 158 U.S. 601 (1895). 

MR. CHIEF JUSTICE BURGER DISSENTS FOR THE REASONS STATED IN NUMBERED
PARAGRAPH 5 OF THE OPINION OF MR. JUSTICE BLACKMUN. 

WARREN N. COPPEDGE, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM
ON THE BRIEF WAS NATHANIEL HANSFORD. 

LEMUEL HUGH KEMP ARGUED THE CASE AND FILED A BRIEF FOR RESPONDENT. 
..END :















TAYLOR V. LOUISIANA, 419 U.S. 522 


       TAYLOR V. LOUISIANA

        APPEAL FROM THE SUPREME COURT OF LOUISISNA

        NO. 73 - 5744.  ARGUED OCTOBER 16, 1974--DECIDED JANUARY
21,

           1975; (282 SO. 2D 491, REVERSED AND REMANDED.) 


    APPELLANT, A MALE, WAS CONVICTED OF A CRIME BY A PETIT JURY

  SELECTED FROM A VENIRE ON WHICH THERE WERE NO WOMEN AND WHICH WAS

  SELECTED PURSUANT TO A SYSTEM RESULTING FROM LOUISIANA

  CONSTITUTIONAL AND STATUTORY REQUIREMENTS THAT A WOMAN SHOULD NOT

  BE SELECTED FOR JURY SERVICE UNLESS SHE HAD PREVIOUSLY FILED A

  WRITTEN DECLARATION OF HER DESIRE TO BE SUBJECT TO JURY SERVICE. 

  THE STATE SUPREME COURT AFFIRMED, HAVING REJECTED APPELLANT'S

  CHALLENGE TO THE CONSTITUTIONALITY OF THE STATE JURY-SELECTION

  SCHEME.  HELD: 

     1.  APPELLANT HAD STANDING TO MAKE HIS CONSTITUTIONAL CLAIM,

  THERE BEING NO RULE THAT SUCH A CLAIM MAY BE ASSERTED ONLY BY

  DEFENDANTS WHO ARE MEMBERS OF THE GROUP EXCLUDED FROM JURY

  SERVICE.  PETERS V. KIFF, 407 U.S. 493.  P. 526. 

     2.  THE REQUIREMENT THAT A PETIT JURY BE SELECTED FROM A

  REPRESENTATIVE CROSS SECTION OF THE COMMUNITY, WHICH IS

  FUNDAMENTAL TO THE JURY TRIAL GUARANTEED BY THE SIXTH AMENDMENT,

  IS VIOLATED BY THE SYSTEMATIC EXCLUSION OF WOMEN FROM JURY

  PANELS, WHICH IN THE JUDICIAL DISTRICT HERE INVOLVED AMOUNTED TO

  53% OF THE CITIZENS ELIGIBLE FOR JURY SERVICE.  PP. 526 - 533. 

   3. NO ADEQUATE JUSTIFICATION WAS SHOWN HERE FOR THE CHALLENGED

  JURY-SELECTION PROVISIONS AND THE RIGHT TO A JURY SELECTED FROM A

  FAIR CROSS SECTION OF THE COMMUNITY CANNOT BE OVERCOME ON MERELY

  RATIONAL GROUNDS.  PP. 533 - 535. 

     4.  IT CAN NO LONGER BE HELD THAT WOMEN AS A CLASS MAY BE

  EXCLUDED FROM JURY SERVICE OR GIVEN AUTOMATIC EXEMPTIONS BASED

  SOLELY ON SEX IF THE CONSEQUENCE IS THAT CRIMINAL JURY VENIRES

  ARE ALMOST ALL MALE, AND CONTRARY IMPLICATIONS OF PRIOR CASES,

  E.G., HOYT V. FLORIDA, 368 U.S. 57, CANNOT BE FOLLOWED.  PP. 535

  - 537. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

DOUGLAS, BRENNAN, STEWART, MARSHALL, BLACKMUN, AND POWELL, JJ.,

  JOINED.  BURGER, C.J., CONCURRED IN THE RESULT.  REHNQUIST, J.,

  FILED A DISSENTING OPINION, POST, P. 538. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

WHEN THIS CASE WAS TRIED, ART. VII, 41, /1/  OF THE LOUISIANA
CONSTITUTION, AND ART. 402 OF THE LOUISIANA CODE OF CRIMINAL PROCEDURE
/2/  PROVIDED THAT A WOMAN SHOULD NOT BE SELECTED FOR JURY SERVICE
UNLESS SHE HAD PREVIOUSLY FILED A WRITTEN DECLARATION OF HER DESIRE TO
BE SUBJECT TO JURY SERVICE.  THE CONSTITUTIONALITY OF THESE PROVISIONS
IN THE ISSUE IN THIS CASE. 

 I 

APPELLANT, BILLY J. TAYLOR, WAS INDICTED BY THE GRAND JURY OF ST.
TAMMANY PARISH, IN THE TWENTY-SECOND JUDICIAL DISTRICT OF LOUISIANA,
FOR AGGRAVATED KIDNAPPING.  ON APRIL 12, 1972, APPELLANT MOVED THE
TRIAL COURT TO QUASH THE PETIT JURY VENIRE DRAWN FOR THE SPECIAL
CRIMINAL TERM BEGINNING WITH HIS TRIAL THE FOLLOWING DAY.  APPELLANT
ALLEGED THAT WOMEN WERE SYSTEMATICALLY EXCLUDED FROM THE VENIRE AND
THAT HE WOULD THEREFORE BE DEPRIVED OF WHAT HE CLAIMED TO BE HIS
FEDERAL CONSTITUTIONAL RIGHT TO "A FAIR TRIAL BY JURY OF A
REPRESENTATIVE SEGMENT OF THE COMMUNITY...." 

THE TWENTY-SECOND JUDICIAL DISTRICT IS COMPRISED OF THE PARISHES OF
ST. TAMMANY AND WASHINGTON.  THE APPELLEE HAS STIPULATED THAT 53% OF
THE PERSONS ELIGIBLE FOR JURY SERVICE IN THESE PARISHES WERE FEMALE,
AND THAT NO MORE THAN 10% OF THE PERSONS ON THE JURY WHEEL IN ST.
TAMMANY PARISH WERE WOMEN.  /3/  DURING THE PERIOD FROM DECEMBER 8,
1971, TO NOVEMBER 3, 1972, 12 FEMALES WERE AMONG THE 1,800 PERSONS
DRAWN TO FILL PETIT JURY VENIRES IN ST. TAMMANY PARISH.  IT WAS ALSO
STIPULATED THAT THE DISCREPANCY BETWEEN FEMALES ELIGIBLE FOR JURY
SERVICE AND THOSE ACTUALLY INCLUDED IN THE VENIRE WAS THE RESULT OF THE
OPERATION OF LA. CONST., ART.VII, 41, AND LA. CODE CRIM. PROC., ART.
402.  /4/  IN THE PRESENT CASE, A VENIRE TOTALING 175 PERSONS WAS DRAWN
FOR JURY SERVICE BEGINNING APRIL 13, 1972.  THERE WERE NO FEMALES ON
THE VENIRE. 

APPELLANT'S MOTION TO QUASH THE VENIRE WAS DENIED THAT SAME DAY. 
AFTER BEING TRIED, CONVICTED, AND SENTENCED TO DEATH, APPELLANT SOUGHT
REVIEW IN THE SUPREME COURT OF LOUISIANA, WHERE HE RENEWED HIS CLAIM
THAT THE PETIT JURY VENIRE SHOULD HAVE BEEN QUASHED.  THE SUPREME COURT
OF LOUISIANA, RECOGNIZING THAT THIS CLAIM DREW INTO QUESTION THE
CONSTITUTIONALITY OF THE PROVISIONS OF THE LOUISIANA CONSTITUTION AND
CODE OF CRIMINAL PROCEDURE DEALING WITH THE SERVICE OF WOMEN ON JURIES,
SQUARELY HELD, ONE JUSTICE DISSENTING, THAT THESE PROVISIONS WERE VALID
AND NOT UNCONSTITUTIONAL UNDER FEDERAL LAW.  282 SO. 2D 491, 497
(1973).  /5/ 

APPELLANT APPEALED FROM THAT DECISION TO THIS COURT.  WE NOTED
PROBABLE JURISDICTION, 415 U.S. 911 (1974), TO CONSIDER WHETHER THE
LOUISIANA JURY-SELECTION SYSTEM DEPRIVED APPELLANT OF HIS SIXTH AND
FOURTEENTH AMENDMENT RIGHT TO AN IMPARTIAL JURY TRIAL.  WE HOLD THAT IT
DID AND THAT THESE AMENDMENTS WERE VIOLATED IN THIS CASE BY THE
OPERATION OF LA. CONST., ART. VII, 41, AND LA. CODE CRIM. PROC., ART.
402.  IN CONSEQUENCE, APPELLANT'S CONVICTION MUST BE REVERSED. 

        II 

THE LOUISIANA JURY SELECTION SYSTEM DOES NOT DISQUALIFY WOMEN FROM
JURY SERVICE, BUT IN OPERATION ITS CONCEDED SYSTEMATIC IMPACT IS THAT
ONLY A VERY FEW WOMEN, GROSSLY DISPROPORTIONATE TO THE NUMBER OF
ELIGIBLE WOMEN IN THE COMMUNITY, ARE CALLED FOR JURY SERVICE.  IN THIS
CASE, NO WOMEN WERE ON THE VENIRE FROM WHICH THE PETIT JURY WAS DRAWN. 
THE ISSUE WE HAVE, THEREFORE, IS WHETHER A JURY-SELECTION SYSTEM WHICH
OPERATES TO EXCLUDE FROM JURY SERVICE AN IDENTIFIABLE CLASS OF CITIZENS
CONSTITUTING 53% OF ELIGIBLE JURORS IN THE COMMUNITY COMPORTS WITH THE
SIXTH AND FOURTEENTH AMENDMENTS. 

THE STATE FIRST INSISTS THAT TAYLOR, A MALE, HAS NO STANDING TO
OBJECT TO THE EXCLUSION OF WOMEN FROM HIS JURY.  BUT TAYLOR'S CLAIM IS
THAT HE WAS CONSTITUTIONALLY ENTITLED TO A JURY DRAWN FROM A VENIRE
CONSTITUTING A FAIR CROSS SECTION OF THE COMMUNITY AND THAT THE JURY
THAT TRIED HIM WAS NOT SUCH A JURY BY REASON OF THE EXCLUSION OF
WOMEN.  TAYLOR WAS NOT A MEMBER OF THE EXCLUDED CLASS; BUT THERE IS NO
RULE THAT CLAIMS SUCH AS TAYLOR PRESENTS MAY BE MADE ONLY BY THOSE
DEFENDANTS WHO ARE MEMBERS OF THE GROUP EXCLUDED FROM JURY SERVICE.  IN
PETERS V. KIFF, 407 U.S. 493 (1972), THE DEFENDANT, A WHITE MAN,
CHALLENGED HIS CONVICTION ON THE GROUND THAT NEGROES HAD BEEN
SYSTEMATICALLY EXCLUDED FROM JURY SERVICE.  SIX MEMBERS OF THE COURT
AGREED THAT PETITIONER WAS ENTITLED TO PRESENT THE ISSUE AND CONCLUDED
THAT HE HAD BEEN DEPRIVED OF HIS FEDERAL RIGHTS.  TAYLOR, IN THE CASE
BEFORE US, WAS SIMILARLY ENTITLED TO TENDER AND HAVE ADJUDICATED THE
CLAIM THAT THE EXCLUSION OF WOMEN FROM JURY SERVICE DEPRIVED HIM OF THE
KIND OF FACTFINDER TO WHICH HE WAS CONSTITUTIONALLY ENTITLED. 

        III 

THE BACKGROUND AGAINST WHICH THIS CASE MUST BE DECIDED INCLUDES OUR
HOLDING IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), THAT THE SIXTH
AMENDMENT'S PROVISION FOR JURY TRIAL IS MADE BINDING ON THE STATES BY
VIRTUE OF THE FOURTEENTH AMENDMENT.  OUR INQUIRY IS WHETHER THE
PRESENCE OF A FAIR CROSS SECTION OF THE COMMUNITY ON VENIRES, PANELS,
OR LISTS FROM WHICH PETIT JURIES ARE DRAWN IS ESSENTIAL TO THE
FULFILLMENT OF THE SIXTH AMENDMENT'S GUARANTEE OF AN IMPARTIAL JURY
TRIAL IN CRIMINAL PROSECUTIONS. 

THE COURT'S PRIOR CASES ARE INSTRUCTIVE.  BOTH IN THE COURSE OF
EXERCISING ITS SUPERVISORY POWERS OVER TRIALS IN FEDERAL COURTS AND IN
THE CONSTITUTIONAL CONTEXT, THE COURT HAS UNAMBIGUOUSLY DECLARED THAT
THE AMERICAN CONCEPT OF THE JURY TRIAL CONTEMPLATES A JURY DRAWN FROM A
FAIR CROSS SECTION OF THE COMMUNITY.  A UNANIMOUS COURT STATED IN SMITH
V. TEXAS, 311 U.S. 128, 130 (1940), THAT "(IT IS PART OF THE
ESTABLISHED TRADITION IN THE USE OF JURIES AS INSTRUMENTS OF PUBLIC
JUSTICE THAT THE JURY BE A BODY TRULY REPRESENTATIVE OF THE
COMMUNITY."  TO EXCLUDE RACIAL GROUPS FROM JURY SERVICE WAS SAID TO BE
"AT WAR WITH OUR BASIC CONCEPTS OF A DEMOCRATIC SOCIETY AND A
REPRESENTATIVE GOVERNMENT."  A STATE JURY SYSTEM THAT RESULTED IN
SYSTEMATIC EXCLUSION OF NEGROES AS JURORS WAS THEREFORE HELD TO VIOLATE
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  GLASSER V.
UNITED STATES, 315 U.S. 60, 85 - 86 (1942), IN THE CONTEXT OF A FEDERAL
CRIMINAL CASE AND THE SIXTH AMENDMENT'S JURY TRIAL REQUIREMENT, STATED
THAT "(OUR NOTIONS OF WHAT A PROPER JURY IS HAVE DEVELOPED IN HARMONY
WITH OUR BASIC CONCEPTS OF A DEMOCRATIC SOCIETY AND A REPRESENTATIVE
GOVERNMENT,"  AND REPEATED THE COURT'S UNDERSTANDING THAT THE JURY "'BE
A BODY TRULY REPRESENTATIVE OF THE COMMUNITY'...AND NOT THE ORGAN OF
ANY SPECIAL GROUP OR CLASS." 

A FEDERAL CONVICTION BY A JURY FROM WHICH WOMEN HAD BEEN EXCLUDED,
ALTHOUGH ELIGIBLE FOR SERVICE UNDER STATE LAW, WAS REVIEWED IN BALLARD
V. UNITED STATES, 329 U.S. 187 (1946).  NOTING THE FEDERAL STATUTORY
"DESIGN TO MAKE THE JURY 'A CROSS-SECTION OF THE COMMUNITY'" AND THE
FACT THAT WOMEN HAD BEEN EXCLUDED, THE COURT EXERCISED ITS SUPERVISORY
POWERS OVER THE FEDERAL COURTS AND REVERSED THE CONVICTION.  IN BROWN
V. ALLEN, 344 U.S. 443, 474 (1953), THE COURT DECLARED THAT "(OUR DUTY
TO PROTECT THE FEDERAL CONSTITUTIONAL RIGHTS OF ALL DOES NOT MEAN WE
MUST OR SHOULD IMPOSE ON STATES OUR CONCEPTION OF THE PROPER SOURCE OF
JURY LISTS, SO LONG AS THE SOURCE REASONABLY REFLECTS A CROSS-SECTION
OF THE POPULATION SUITABLE IN CHARACTER AND INTELLIGENCE FOR THAT CIVIC
DUTY." 

SOME YEARS LATER IN CARTER V. JURY COMM'N, 396 U.S. 320, 330 (1970),
THE COURT OBSERVED THAT THE EXCLUSION OF NEGROES FROM JURY SERVICE
BECAUSE OF THEIR RACE "CONTRAVENES THE VERY IDEA OF A JURY--'A BODY
TRULY REPRESENTATIVE OF THE COMMUNITY'...."  (QUOTING FROM SMITH V.
TEXAS, SUPRA.) AT ABOUT THE SAME TIME IT WAS CONTENDED THAT THE USE OF
SIX-MAN JURIES IN NONCAPITAL CRIMINAL CASES VIOLATED THE SIXTH
AMENDMENT FOR FAILURE TO PROVIDE JURIES DRAWN FROM A CROSS SECTION OF
THE COMMUNITY, WILLIAMS V. FLORIDA, 399 U.S. 78 (1970).  IN THE COURSE
OF REJECTING THAT CHALLENGE, WE SAID THAT THE NUMBER OF PERSONS ON THE
JURY SHOULD "BE LARGE ENOUGH TO PROMOTE GROUP DELIBERATION, FREE FROM
OUTSIDE ATTEMPTS AT INTIMIDATION, AND TO PROVIDE A FAIR POSSIBILITY FOR
OBTAINING A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY."  ID., AT
100.  IN LIKE VEIN, IN APODACA V. OREGON, 406 U.S. 404, 410 - 411
(1972) (PLURALITY OPINION), IT WAS SAID THAT "A JURY WILL COME TO SUCH
A (COMMONSENSE) JUDGMENT AS LONG AS IT CONSISTS OF A GROUP OF LAYMEN
REPRESENTATIVE OF A CROSS SECTION OF THE COMMUNITY WHO HAVE THE DUTY
AND THE OPPORTUNITY TO DELIBERATE....ON THE QUESTION OF A DEFENDANT'S
GUILT."  SIMILARLY, THREE JUSTICES IN PETERS V. KIFF, 407 U.S., AT 500,
OBSERVED THAT THE SIXTH AMENDMENT COMPREHENDED A FAIR POSSIBILITY FOR
OBTAINING A JURY CONSTITUTING A REPRESENTATIVE CROSS SECTION OF THE
COMMUNITY. 

THE UNMISTAKABLE IMPORT OF THIS COURT'S OPINIONS, AT LEAST SINCE
1940, SMITH V. TEXAS, SUPRA, AND NOT REPUDIATED BY INTERVENING
DECISIONS, IS THAT THE SELECTION OF A PETIT JURY FROM A REPRESENTATIVE
CROSS SECTION OF THE COMMUNITY IS AN ESSENTIAL COMPONENT OF THE SIXTH
AMENDMENT RIGHT TO A JURY TRIAL.  RECENT FEDERAL LEGISLATION GOVERNING
JURY SELECTION WITHIN THE FEDERAL COURT SYSTEM HAS A SIMILAR THRUST. 
SHORTLY PRIOR TO THIS COURT'S DECISION IN DUNCAN V. LOUISIANA, SUPRA,
THE FEDERAL JURY SELECTION AND SERVICE ACT OF 1968 /6/  WAS ENACTED. 
IN THAT ACT, CONGRESS STATED "THE POLICY OF THE UNITED STATES THAT ALL
LITIGANTS IN FEDERAL COURTS ENTITLED TO TRIAL BY JURY SHALL HAVE THE
RIGHT TO GRAND AND PETIT JURIES SELECTED AT RANDOM FROM A FAIR CROSS
CONVENES."  28 U.S.C. 1861.  IN THAT ACT, CONGRESS ALSO ESTABLISHED THE
MACHINERY BY WHICH THE STATED POLICY WAS TO BE IMPLEMENTED.  28 U.S.C.
1862 - 1866.  IN PASSING THIS LEGISLATION, THE COMMITTEE REPORTS OF
BOTH THE HOUSE /7/  AND THE SENATE /8/  RECOGNIZED THAT THE JURY PLAYS
A POLITICAL FUNCTION IN THE ADMINISTRATION OF THE LAW AND THAT THE
REQUIREMENT OF A JURY'S BEING CHOSEN FROM A FAIR CROSS SECTION OF THE
COMMUNITY IS FUNDAMENTAL TO THE AMERICAN SYSTEM OF JUSTICE.  DEBATE ON
THE FLOORS OF THE HOUSE AND SENATE ON THE ACT INVOKED THE SIXTH
AMENDMENT, /9/  THE CONSTITUTION GENERALLY, /10/  AND PRIOR DECISIONS
OF THIS COURT /11/  IN SUPPORT OF THE ACT. 

WE ACCEPT THE FAIR-CROSS-SECTION REQUIREMENT AS FUNDAMENTAL TO THE
JURY TRIAL GUARANTEED BY THE SIXTH AMENDMENT AND ARE CONVINCED THAT THE
REQUIREMENT HAS SOLID FOUNDATION.  THE PURPOSE OF A JURY IS TO GUARD
AGAINST THE EXERCISE OF ARBITRARY POWER--TO MAKE AVAILABLE THE
COMMONSENSE JUDGMENT OF THE COMMUNITY AS A HEDGE AGAINST THE
OVERZEALOUS OR MISTAKEN PROSECUTOR AND IN PREFERENCE TO THE
PROFESSIONAL OR PERHAPS OVER-CONDITIONED OR BIASED RESPONSE OF A
JUDGE.  DUNCAN V. LOUISIANA, 391 U.S., AT 155 - 156.  THIS PROPHYLACTIC
VEHICLE IS NOT PROVIDED IF THE JURY POOL IS MADE UP OF ONLY SPECIAL
SEGMENTS OF THE POPULACE OR IF LARGE, DISTINCTIVE GROUPS ARE EXCLUDED
FROM THE POOL.  COMMUNITY PARTICIPATION IN THE ADMINISTRATION OF THE
CRIMINAL LAW, MOREOVER, IS NOT ONLY CONSISTENT WITH OUR DEMOCRATIC
HERITAGE BUT IS ALSO CRITICAL TO PUBLIC CONFIDENCE IN THE FAIRNESS OF
THE CRIMINAL JUSTICE SYSTEM.  RESTRICTING JURY SERVICE TO ONLY SPECIAL
GROUPS OR EXCLUDING IDENTIFIABLE SEGMENTS PLAYING MAJOR ROLES IN THE
COMMUNITY CANNOT BE SQUARED WITH THE CONSTITUTIONAL CONCEPT OF JURY
TRIAL.  "TRIAL BY JURY PRESUPPOSES A JURY DRAWN FROM A POOL BROADLY
REPRESENTATIVE OF THE COMMUNITY AS WELL AS IMPARTIAL IN A SPECIFIC
CASE... (THE BROAD REPRESENTATIVE CHARACTER OF THE JURY SHOULD BE
MAINTAINED, PARTLY AS ASSURANCE OF A DIFFUSED IMPARTIALITY AND PARTLY
BECAUSE SHARING IN THE ADMINISTRATION OF JUSTICE IS A PHASE OF CIVIC
RESPONSIBILITY."  THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217, 227
(1946) (FRANKFURTER, J., DISSENTING). 

        IV 

WE ARE ALSO PERSUADED THAT THE FAIR-CROSS-SECTION REQUIREMENT IS
VIOLATED BY THE SYSTEMATIC EXCLUSION OF WOMEN, WHO IN THE JUDICIAL
DISTRICT INVOLVED HERE AMOUNTED TO 53% OF THE CITIZENS ELIGIBLE FOR
JURY SERVICE.  THIS CONCLUSION NECESSARILY ENTAILS THE JUDGMENT THAT
WOMEN ARE SUFFICIENTLY NUMEROUS AND DISTINCT FROM MEN AND THAT IF THEY
ARE SYSTEMATICALLY ELIMINATED FROM JURY PANELS, THE SIXTH AMENDMENT'S
FAIR-CROSS-SECTION REQUIREMENT CANNOT BE SATISFIED.  THIS VERY MATTER
WAS DEBATED IN BALLARD V. UNITED STATES, SUPRA.  POSITING THE FAIR
CROSS-SECTION RULE--THERE SAID TO BE A STATUTORY ONE--THE COURT
CONCLUDED THAT THE SYSTEMATIC EXCLUSION OF WOMEN WAS UNACCEPTABLE.  THE
DISSENTING VIEW THAT AN ALL-MALE PANEL DRAWN FROM VARIOUS GROUPS IN THE
COMMUNITY WOULD BE AS TRULY REPRESENTATIVE AS IF WOMEN WERE INCLUDED,
WAS FIRMLY REJECTED: 

"THE THOUGHT IS THAT THE FACTORS WHICH TEND TO INFLUENCE THE ACTION
OF WOMEN ARE THE SAME AS THOSE WHICH INFLUENCE THE ACTION OF MEN-
PERSONALITY, BACKGROUND, ECONOMIC STATUS--AND NOT SEX.  YET IT IS NOT
ENOUGH TO SAY THAT WOMEN WHEN SITTING AS JURORS NEITHER ACT NOR TEND TO
ACT AS A CLASS.  MEN LIKEWISE DO NOT ACT AS A CLASS.  BUT, IF THE SHOE
WERE ON THE OTHER FOOT, WHO WOULD CLAIM THAT A JURY WAS TRULY
REPRESENTATIVE OF THE COMMUNITY IF ALL MEN WERE INTENTIALLY AND
SYSTEMATICALLY EXCLUDED FROM THE PANEL?  THE TRUTH IS THAT THE TWO
SEXES ARE NOT FUNGIBLE; A COMMUNITY MADE UP EXCLUSIVELY OF ONE IS
DIFFERENT FROM A COMMUNITY COMPOSED OF BOTH; THE SUBTLE INTERPLAY OF
INFLUENCE ONE ON THE OTHER IS AMONG THE IMPONDERABLES.  TO INSULATE THE
COURTROOM FROM EITHER MAY NOT IN A GIVEN CASE MAKE AN IOTA OF
DIFFERENCE.  YET A FLAVOR, A DISTINCT QUALITY IS LOST IF EITHER SEX IS
EXCLUDED.  THE EXCLUSION OF ONE MAY INDEED MAKE THE JURY LESS
REPRESENTATIVE OF THE COMMUNITY THAN WOULD BE TRUE IF AN ECONOMIC OR
RACIAL GROUP WERE EXCLUDED."  329 U.S., AT 193 - 194.  /12/ IN THIS
RESPECT, WE AGREE WITH THE COURT IN BALLARD: IF THE FAIR-CROSS-SECTION
RULE IS TO GOVERN THE SELECTION OF JURIES, AS WE HAVE CONCLUDED IT
MUST, WOMEN CANNOT BE SYSTEMATICALLY EXCLUDED FROM JURY PANELS FROM
WHICH PETIT JURIES ARE DRAWN.  THIS CONCLUSION IS CONSISTENT WITH THE
CURRENT JUDGMENT OF THE COUNTRY, NOW EVIDENCED BY LEGISLATIVE OR
CONSTITUTIONAL PROVISIONS IN EVERY STATE AND AT THE FEDERAL LEVEL
QUALIFYING WOMEN FOR JURY SERVICE.  /13/

        V 

THERE REMAINS THE ARGUMENT THAT WOMEN AS A CLASS SERVE A DISTINCTIVE
ROLE IN SOCIETY AND THAT JURY SERVICE WOULD SO SUBSTANTIALLY INTERFERE
WITH THAT FUNCTION THAT THE STATE HAS AMPLE JUSTIFICATION FOR EXCLUDING
WOMEN FROM SERVICE UNLESS THEY VOLUNTEER, EVEN THOUGH THE RESULT IS
THAT ALMOST ALL JURORS ARE MEN.  IT IS TRUE THAT HOYT V. FLORIDA, 368
U.S. 57 (1961), HELD THAT SUCH A SYSTEM /14/  DID NOT DENY DUE PROCESS
OF LAW OR EQUAL PROTECTION OF THE LAWS BECAUSE THERE WAS A SUFFICIENTLY
RATIONAL BASIS FOR SUCH AN EXEMPTION.  /15/  BUT HOYT DID NOT INVOLVE A
DEFENDANT'S SIXTH AMENDMENT RIGHT TO A JURY DRAWN FROM A FAIR CROSS
RIGHT IF WOMEN AS A CLASS ARE SYSTEMATICALLY EXCLUDED.  THE RIGHT TO A
PROPER JURY CANNOT BE OVERCOME ON MERELY RATIONAL GROUNDS.  /16/  THERE
MUST BE WEIGHTIER REASONS IF A DISTINCTIVE CLASS REPRESENTING 53% OF
THE ELIGIBLE JURORS IS FOR ALL PRACTICAL PURPOSES TO BE EXCLUDED FROM
JURY SERVICE.  NO SUCH BASIS HAS BEEN TENDERED HERE. 

THE STATES ARE FREE TO GRANT EXEMPTIONS FROM JURY SERVICE TO
INDIVIDUALS IN CASE OF SPECIAL HARDSHIP OR INCAPACITY AND TO THOSE
ENGAGED IN PARTICULAR OCCUPATIONS THE UNINTERRUPTED PERFORMANCE OF
WHICH IS CRITICAL TO THE COMMUNITY'S WELFARE.  RAWLINS V. GEORGIA, 201
U.S. 638 (1906).  IT WOULD NOT APPEAR THAT SUCH EXEMPTIONS WOULD POSE
SUBSTANTIAL THREATS THAT THE REMAINING POOL OF JURORS WOULD NOT BE
REPRESENTATIVE OF THE COMMUNITY.  A SYSTEM EXCLUDING ALL WOMEN,
HOWEVER, IS A WHOLLY DIFFERENT MATTER.  IT IS UNTENABLE TO SUGGEST
THESE DAYS THAT IT WOULD BE A SPECIAL HARDSHIP FOR EACH AND EVERY WOMAN
TO PERFORM JURY SERVICE OR THAT SOCIETY CANNOT SPARE ANY WOMEN FROM
THEIR PRESENT DUTIES.  /17/  THIS MAY BE THE CASE WITH MANY, AND IT MAY
BE BURDENSOME TO SORT OUT THOSE WHO SHOULD BE EXEMPTED FROM THOSE WHO
SHOULD SERVE.  BUT THAT TASK IS PERFORMED IN THE CASE OF MEN, AND THE
ADMINISTRATIVE CONVENIENCE IN DEALING WITH WOMEN AS A CLASS IS
INSUFFICIENT JUSTIFICATION FOR DILUTING THE QUALITY OF COMMUNITY
JUDGMENT REPRESENTED BY THE JURY IN CRIMINAL TRIALS. 

 VI 

ALTHOUGH THIS JUDGMENT MAY APPEAR A FOREGONE CONCLUSION FROM THE
PATTERN OF SOME OF THE COURT'S CASES OVER THE PAST 30 YEARS, AS WELL AS
FROM LEGISLATIVE DEVELOPMENTS AT BOTH FEDERAL AND STATE LEVELS, IT IS
NEVERTHELESS TRUE THAT UNTIL TODAY NO CASE HAD SQUARELY HELD THAT THE
EXCLUSION OF WOMEN FROM JURY VENIRES DEPRIVES A CRIMINAL DEFENDANT OF
HIS SIXTH AMENDMENT RIGHT TO TRIAL BY AN IMPARTIAL JURY DRAWN FROM A
FAIR CROSS SECTION OF THE COMMUNITY.  IT IS APPARENT THAT THE FIRST
CONGRESS DID NOT PERCEIVE THE SIXTH AMENDMENT AS REQUIRING WOMEN ON
CRIMINAL JURY PANELS; FOR THE DIRECTION OF THE FIRST JUDICIARY ACT OF
1789 WAS THAT FEDERAL JURORS WERE TO HAVE THE QUALIFICATIONS REQUIRED
BY THE STATES IN WHICH THE FEDERAL COURT WAS SITTING /18/  AND AT THE
TIME WOMEN WERE DISQUALIFIED UNDER STATE LAW IN EVERY STATE. 
NECESSARILY, THEN, FEDERAL JURIES IN CRIMINAL CASES WERE ALL MALE, AND
IT WAS NOT UNTIL THE CIVIL RIGHTS ACT OF 1957, 71 STAT. 638, 28 U.S.C.
1861 (1964 ED.), THAT CONGRESS ITSELF PROVIDED THAT ALL CITIZENS, WITH
LIMITED EXCEPTIONS, WERE COMPETENT TO SIT ON FEDERAL JURIES.  UNTIL
THAT TIME, FEDERAL COURTS WERE REQUIRED BY STATUTE TO EXCLUDE WOMEN
FROM JURY DUTY IN THOSE STATES WHERE WOMEN WERE DISQUALIFIED.  UTAH WAS
THE FIRST STATE TO QUALIFY WOMEN FOR JURIES; IT DID SO IN 1898, N. 13,
SUPRA.  MOREOVER, HOYT V. FLORIDA WAS DECIDED AND HAS STOOD FOR THE
PROPOSITION THAT, EVEN IF WOMEN AS A GROUP COULD NOT BE
CONSTITUTIONALLY DISQUALIFIED FROM JURY SERVICE, THERE WAS AMPLE REASON
TO TREAT ALL WOMEN DIFFERENTLY FROM MEN FOR THE PURPOSE OF JURY SERVICE
AND TO EXCLUDE THEM UNLESS THEY VOLUNTEERED.  /19/ 

ACCEPTING AS WE DO, HOWEVER, THE VIEW THAT THE SIXTH AMENDMENT
AFFORDS THE DEFENDANT IN A CRIMINAL TRIAL THE OPPORTUNITY TO HAVE THE
JURY DRAWN FROM VENIRES REPRESENTATIVE OF THE COMMUNITY, WE THINK IT IS
NO LONGER TENABLE TO HOLD THAT WOMEN AS A CLASS MAY BE EXCLUDED OR
GIVEN AUTOMATIC EXEMPTIONS BASED SOLELY ON SEX IF THE CONSEQUENCE IS
THAT CRIMINAL JURY VENIRES ARE ALMOST TOTALLY MALE.  TO THIS EXTENT WE
CANNOT FOLLOW THE CONTRARY IMPLICATIONS OF THE PRIOR CASES, INCLUDING
HOYT V. FLORIDA.  IF IT WAS EVER THE CASE THAT WOMEN WERE UNQUALIFIED
TO SIT ON JURIES OR WERE SO SITUATED THAT NONE OF THEM SHOULD BE
REQUIRED TO PERFORM JURY SERVICE, THAT TIME HAS LONG SINCE PASSED.  IF
AT ONE TIME IT COULD BE HELD THAT SIXTH AMENDMENT JURIES MUST BE DRAWN
FROM A FAIR CROSS SECTION OF THE COMMUNITY BUT THAT THIS REQUIREMENT
PERMITTED THE ALMOST TOTAL EXCLUSION OF WOMEN, THIS IS NOT THE CASE
TODAY.  COMMUNITIES DIFFER AT DIFFERENT TIMES AND PLACES.  WHAT IS A
FAIR CROSS SECTION AT ONE TIME OR PLACE IS NOT NECESSARILY A FAIR CROSS
BEEN PRESENTED TO US IN THIS CASE SUGGESTING THAT ALL-MALE VENIRES IN
THE PARISHES INVOLVED HERE ARE FAIRLY REPRESENTATIVE OF THE LOCAL
POPULATION OTHERWISE ELIGIBLE FOR JURY SERVICE. 

        VII 

OUR HOLDING DOES NOT AUGUR OR AUTHORIZE THE FASHIONING OF DETAILED
JURY-SELECTION CODES BY FEDERAL COURTS.  THE FAIR-CROSS-SECTION
PRINCIPLE MUST HAVE MUCH LEEWAY IN APPLICATION.  THE STATES REMAIN FREE
TO PRESCRIBE RELEVANT QUALIFICATIONS FOR THEIR JURORS AND TO PROVIDE
REASONABLE EXEMPTIONS SO LONG AS IT MAY BE FAIRLY SAID THAT THE JURY
LISTS OR PANELS ARE REPRESENTATIVE OF THE COMMUNITY.  CARTER V. JURY
COMM'N, SUPRA, AS DID BROWN V. ALLEN, SUPRA; RAWLINS V. GEORGIA, SUPRA,
AND OTHER CASES, RECOGNIZED BROAD DISCRETION IN THE STATES IN THIS
RESPECT.  WE DO NOT DEPART FROM THE PRINCIPLES ENUNCIATED IN CARTER. 
BUT, AS WE HAVE SAID, LOUISIANA'S SPECIAL EXEMPTION FOR WOMEN OPERATES
TO EXCLUDE THEM FROM PETIT JURIES, WHICH IN OUR VIEW IS CONTRARY TO THE
COMMAND OF THE SIXTH AND FOURTEENTH AMENDMENTS. 

IT SHOULD ALSO BE EMPHASIZED THAT IN HOLDING THAT PETIT JURIES MUST
BE DRAWN FROM A SOURCE FAIRLY REPRESENTATIVE OF THE COMMUNITY WE IMPOSE
NO REQUIREMENT THAT PETIT JURIES ACTUALLY CHOSEN MUST MIRROR THE
COMMUNITY AND REFLECT THE VARIOUS DISTINCTIVE GROUPS IN THE
POPULATION.  DEFENDANTS ARE NOT ENTITLED TO A JURY OF ANY PARTICULAR
COMPOSITION, FAY V. NEW YORK, 332 U.S. 261, 284 (1947); APODACA V.
OREGON, 406 U.S., AT 413 (PLURALITY OPINION); BUT THE JURY WHEELS,
POOLS OF NAMES, PANELS, OR VENIRES FROM WHICH JURIES ARE DRAWN MUST NOT
SYSTEMATICALLY EXCLUDE DISTINCTIVE GROUPS IN THE COMMUNITY AND THEREBY
FAIL TO BE REASONABLY REPRESENTATIVE THEREOF. 

THE JUDGMENT OF THE LOUISIANA SUPREME COURT IS REVERSED AND THE CASE
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

             SO ORDERED. 

/1/  LA. CONST., ART. VII, 41, READ, IN PERTINENT PART: 

"THE LEGISLATURE SHALL PROVIDE FOR THE ELECTION AND DRAWING OF
COMPETENT AND INTELLIGENT JURORS FOR THE TRIAL OF CIVIL AND CRIMINAL
CASES; PROVIDED, HOWEVER, THAT NO WOMAN SHALL BE DRAWN FOR JURY SERVICE
UNLESS SHE SHALL HAVE PREVIOUSLY FILED WITH THE CLERK OF THE DISTRICT
COURT A WRITTEN DECLARATION OF HER DESIRE TO BE SUBJECT TO SUCH
SERVICE."  AS OF JANUARY 1, 1975, THIS PROVISION OF THE LOUISIANA
CONSTITUTION WAS REPEALED AND REPLACED BY THE FOLLOWING PROVISION, LA.
CONST., ART. V, 33: 

"(A) QUALIFICATIONS. 

"A CITIZEN OF THE STATE WHO HAS REACHED THE AGE OF MAJORITY IS
ELIGIBLE TO SERVE AS A JUROR WITHIN THE PARISH IN WHICH HE IS
DOMICILED.  THE LEGISLATURE MAY PROVIDE ADDITIONAL QUALIFICATIONS. 

"(B) EXEMPTIONS. 

"THE SUPREME COURT SHALL PROVIDE BY RULE FOR EXEMPTION OF JURORS." 

/2/  LA. CODE CRIM. PROC., ART. 402, PROVIDED: 

"A WOMAN SHALL NOT BE SELECTED FOR JURY SERVICE UNLESS SHE HAS
PREVIOUSLY FILED WITH THE CLERK OF COURT OF THE PARISH IN WHICH SHE
RESIDES A WRITTEN DECLARATION OF HER DESIRE TO BE SUBJECT TO JURY
SERVICE."  THIS PROVISION HAS BEEN REPEALED, EFFECTIVE JANUARY 1,
1975.  THE REPEAL, HOWEVER, HAS NO EFFECT ON THE CONVICTION OBTAINED IN
THIS CASE. 

/3/  THE STIPULATION APPEARS IN THE APPENDIX, AT 82 - 84, FILED IN
EDWARDS V. HEALY, NO. 73 - 759, NOW PENDING BEFORE THE COURT. 

/4/  IBID. 

/5/  THE DEATH SENTENCE IMPOSED ON APPELLANT WAS ANNULLED AND SET
ASIDE BY THE SUPREME COURT OF LOUISIANA IN ACCORD WITH THIS COURT'S
DECISION IN FURMAN V. GEORGIA, 408 U.S. 238 (1972), WITH INSTRUCTIONS
TO THE DISTRICT COURT TO IMPOSE A LIFE SENTENCE ON REMAND.  THE SUPREME
COURT OF LOUISIANA GRANTED A REHEARING TO APPELLANT ON CERTAIN OTHER
ISSUES NOT RELEVANT TO THIS APPEAL, 282 SO. 2D 491, 500 (1973), AND
LATER DENIED A SECOND PETITION FOR REHEARING. 

/6/  PUB. L. 90 - 274, 82 STAT. 53, 28 U.S.C. 1861 ET SEQ. 

/7/  H.R. REP. NO. 1076, 90TH CONG., 2D SESS., 8 (1968):  "IT MUST
BE REMEMBERED THAT THE JURY IS DESIGNED NOT ONLY TO UNDERSTAND THE
CASE, BUT ALSO TO REFLECT THE COMMUNITY'S SENSE OF JUSTICE IN DECIDING
IT.  AS LONG AS THERE ARE SIGNIFICANT DEPARTURES FROM THE CROSS
THEY REFLECT A SLANTED VIEW OF THE COMMUNITY THEY ARE SUPPOSED TO
REPRESENT."  SEE S. REP. NO. 92 - 516, P. 3 (1971). 

/8/  S. REP. NO. 891, 90TH CONG., 1ST SESS., 9 (1967): "A JURY
CHOSEN FROM A REPRESENTATIVE COMMUNITY SAMPLE IS A FUNDAMENTAL OF OUR
SYSTEM OF JUSTICE." 

BOTH THE SENATE AND HOUSE REPORTS MADE REFERENCE TO THE DECISION OF
THE COURT OF APPEALS IN RABINOWITZ V. UNITED STATES, 366 F. 2D 34, 57
(CA5 1966), WHICH, IN SUSTAINING AN ATTACK ON THE COMPOSITION OF GRAND
AND PETIT JURY VENIRES IN THE MIDDLE DISTRICT OF GEORGIA, HAD HELD THAT
BOTH THE CONSTITUTION AND 28 U.S.C. 1861, PRIOR TO ITS AMENDMENT IN
1968, REQUIRED A SYSTEM OF JURY SELECTION "THAT WILL PROBABLY RESULT IN
A FAIR CROSS-SECTION OF THE COMMUNITY BEING PLACED ON THE JURY ROLLS." 
SEE S. REP. NO. 891, SUPRA, AT 11, 18; H.R. REP. NO. 1076, SUPRA, N. 7,
AT 4, 5. 

ELIMINATION OF THE "KEY MAN" SYSTEM THROUGHOUT THE FEDERAL COURTS
WAS THE PRIMARY FOCUS OF THE FEDERAL JURY SELECTION AND SERVICE ACT OF
1968.  SEE ID., AT 4 AND N. 1. 

/9/  114 CONG. REC. 3992 (1968) (REMARKS OF MR. ROGERS).  SEE ALSO
118 CONG. REC. 6939 (1972) (REMARKS OF MR. POFF). 

/10/  114 CONG. REC. 3999 (1968) (REMARKS OF MR. MACHEN). 

/11/  ID., AT 6609 (REMARKS OF SEN. TYDINGS). 

/12/  COMPARE PETERS V. KIFF, 407 U.S. 493, 502-504 (1972) (OPINION
OF MARSHALL, J., JOINED BY DOUGLAS AND STEWART, JJ.): 

"THESE PRINCIPLES COMPEL THE CONCLUSION THAT A STATE CANNOT,
CONSISTENT WITH DUE PROCESS, SUBJECT A DEFENDANT TO INDICTMENT OR TRIAL
BY A JURY THAT HAS BEEN SELECTED IN AN ARBITRARY AND DISCRIMINATORY
MANNER, IN VIOLATION OF THE CONSTITUTION AND LAWS OF THE UNITED
STATES.  ILLEGAL AND UNCONSTITUTIONAL JURY SELECTION PROCEDURES CAST
DOUBT ON THE INTERGRITY OF THE WHOLE JUDICIAL PROCESS.  THEY CREATE THE
APPEARANCE OF BIAS IN THE DECISION OF INDIVIDUAL CASES, AND THEY
INCREASE THE RISK OF ACTUAL BIAS AS WELL. 

        .         .         .  .         .         . 

"BUT THE EXCLUSION FROM JURY SERVICE OF A SUBSTANTIAL AND
IDENTIFIABLE CLASS OF CITIZENS HAS A POTENTIAL IMPACT THAT IS TOO
SUBTLE AND TOO PERVASIVE TO ADMIT OF CONFINEMENT TO PARTICULAR ISSUES
OR PARTICULAR CASES.... 

"MOREOVER, WE ARE UNWILLING TO MAKE THE ASSUMPTION THAT THE
EXCLUSION OF NEGROES HAS RELEVANCE ONLY FOR ISSUES INVOLVING RACE. 
WHEN ANY LARGE AND IDENTIFIABLE SEGMENT OF THE COMMUNITY IS EXCLUDED
FROM JURY SERVICE, THE EFFECT IS TO REMOVE FROM THE JURY ROOM QUALITIES
OF HUMAN NATURE AND VARIETIES OF HUMAN EXPERIENCE, THE RANGE OF WHICH
IS UNKNOWN AND PERHAPS UNKNOWABLE.  IT IS NOT NECESSARY TO ASSUME THAT
THE EXCLUDED GROUP WILL CONSISTENTLY VOTE AS A CLASS IN ORDER TO
CONCLUDE, AS WE DO, THAT ITS EXCLUSION DEPRIVES THE JURY OF A
PERSPECTIVE ON HUMAN EVENTS THAT MAY HAVE UNSUSPECTED IMPORTANCE IN ANY
CASE THAT MAY BE PRESENTED."  (FOOTNOTE OMITTED.) 

CONTROLLED STUDIES OF THE PERFORMANCE OF WOMEN AS JURORS CONDUCTED
SUBSEQUENT TO THE COURT'S DECISION IN BALLARD HAVE CONCLUDED THAT WOMEN
BRING TO JURIES THEIR OWN PERSPECTIVES AND VALUES THAT INFLUENCE BOTH
JURY DELIBERATION AND RESULT.  SEE GENERALLY RUDOLPH, WOMEN ON JURIES-
VOLUNTARY OR COMPULSORY?, 44 J. AM. JUD.  SOC.  206 (1961); 55 J.
SOCIOLOGY & SOCIAL RESEARCH 442 (1971); 3J.  APPLIED SOCIAL PSYCHOLOGY
267 (1973); 19 SOCIOMETRY 3 (1956). 

/13/  THIS IS A RELATIVELY MODERN DEVELOPMENT.  UNDER THE ENGLISH
COMMON LAW, WOMEN, WITH THE EXCEPTION OF THE TRIAL OF A NARROW CLASS OF
CASES, WERE NOT CONSIDERED TO BE QUALIFIED FOR JURY SERVICE BY VIRTUE
OF THE DOCTRINE OF PROPTER DEFECTUM SEXUS, A "DEFECT OF SEX."  3 W.
BLACKSTONE, COMMENTARIES *362.  THIS COMMON-LAW RULE WAS MADE STATUTORY
BY PARLIAMENT IN 1870, 33 & 34 VICT., C. 77, AND THEN REJECTED BY
PARLIAMENT IN 1919, 9 & 10 GEO. 5, C. 71.  IN THIS COUNTRY WOMEN WERE
DISQUALIFIED BY STATE LAW TO SIT AS JURORS UNTIL THE END OF THE 19TH
CENTURY.  THEY WERE FIRST DEEMED QUALIFIED FOR JURY SERVICE BY A STATE
IN 1898, UTAH REV. STAT. ANN., TIT. 35, 1297 (1898).  TODAY, WOMEN ARE
QUALIFIED AS JURORS IN ALL THE STATES.  THE JURY SERVICE STATUTES AND
RULES OF MOST STATES DO NOT ON THEIR FACE EXTEND TO WOMEN THE TYPE OF
EXEMPTION PRESENTLY BEFORE THE COURT, ALTHOUGH THE EXEMPTION PROVISIONS
OF SOME STATES DO APPEAR TO TREAT MEN AND WOMEN DIFFERENTLY IN CERTAIN
RESPECTS.     /14/  FLA. STAT. 1959, 40.01 (1), PROVIDED THAT GRAND AND
PETIT JURORS BE TAKEN FROM MALE AND FEMALE CITIZENS OF THE STATE
POSSESSED OF CERTAIN QUALIFICATIONS AND ALSO PROVIDED THAT "THE NAME OF
NO FEMALE PERSON SHALL BE TAKEN FOR JURY SERVICE UNLESS SAID PERSON HAS
REGISTERED WITH THE CLERK OF THE CIRCUIT COURT HER DESIRE TO BE PLACED
ON THE JURY LIST."  HOYT V. FLORIDA, 368 U.S. 57, 58 (1961). 

/15/  THE STATE INTEREST, AS ARTICULATED BY THE COURT, WAS BASED ON
THE ASSUMPTION THAT "WOMAN IS STILL REGARDED AS THE CENTER OF HOME AND
FAMILY LIFE."  HOYT V. FLORIDA, SUPRA, AT 62.  LOUISIANA MAKES A
SIMILAR ARGUMENT HERE, STATING THAT ITS GRANT OF AN AUTOMATIC EXEMPTION
FROM JURY SERVICE TO FEMALES INVOLVES ONLY THE STATE'S ATTEMPT "TO
REGULATE AND PROVIDE STABILITY TO THE STATE'S OWN IDEA OF FAMILY
LIFE."  BRIEF FOR APPELLEE 12. 

/16/  IN HOYT, THE COURT DETERMINED BOTH THAT THE UNDERLYING
CLASSIFICATION WAS RATIONAL AND THAT THE STATE'S PROFFERED RATIONALE
FOR EXTENDING THIS EXEMPTION TO FEMALES WITHOUT FAMILY RESPONSIBILITIES
WAS JUSTIFIED BY ADMINISTRATIVE CONVENIENCE.  368 U.S., AT 62 - 63. 

/17/  IN HOYT V. FLORIDA, SUPRA, THE COURT PLACED SOME EMPHASIS ON
THE NOTION, ADVANCED BY THE STATE THERE AND BY LOUISIANA HERE IN
SUPPORT OF THE RATIONALITY OF ITS STATUTORY SCHEME, THAT "WOMAN IS
STILL REGARDED AS THE CENTER OF HOME AND FAMILY LIFE."  ID., AT 62. 
STATISTICS COMPILED BY THE DEPARTMENT OF LABOR INDICATE THAT IN OCTOBER
1974, 54.2% OF ALL WOMEN BETWEEN 18 AND 64 YEARS OF AGE WERE IN THE
LABOR FORCE.  UNITED STATES DEPT. OF LABOR, WOMEN IN THE LABOR FORCE
(OCT. 1974).  ADDITIONALLY, IN MARCH 1974, 45.7% OF WOMEN WITH CHILDREN
UNDER THE AGE OF 18 WERE IN THE LABOR FORCE; WITH RESPECT TO FAMILIES
CONTAINING CHILDREN BETWEEN THE AGES OF SIX AND 17, 67.3% OF MOTHERS
WHO WERE WIDOWED, DIVORCED, OR SEPARATED WERE IN THE WORK FORCE, WHILE
51.2% OF THE MOTHERS WHOSE HUSBANDS WERE PRESENT IN THE HOUSEHOLD WERE
IN THE WORK FORCE.  EVEN IN FAMILY UNITS IN WHICH THE HUSBAND WAS
PRESENT AND WHICH CONTAINED A CHILD UNDER THREE YEARS OLD, 31% OF THE
MOTHERS WERE IN THE WORK FORCE.  UNITED STATES DEPT. OF LABOR, MARITAL
AND FAMILY CHARACTERISTICS OF THE LABOR FORCE, TABLE F (MARCH 1974). 
WHILE THESE STATISTICS PERHAPS SPEAK MORE TO THE EVOLVING NATURE OF THE
OF THE FAMILY UNIT IN AMERICAN SOCIETY THAN TO THE NATURE OF THE ROLE
PLAYED BY WOMEN WHO HAPPEN TO BE MEMBERS OF A FAMILY UNIT, THEY
CERTAINLY PUT TO REST THE SUGGESTION THAT ALL WOMEN SHOULD BE EXEMPT
FROM JURY SERVICE BASED SOLELY ON THEIR SEX AND THE PRESUMED ROLE IN
THE HOME. 

/18/  SECTION 29 OF THAT ACT PROVIDED THAT "THE JURORS SHALL HAVE
THE SAME QUALIFICATIONS AS ARE REQUISITE FOR JURORS BY THE LAWS OF THE
STATE OF WHICH THEY ARE CITIZENS, TO SERVE IN THE HIGHEST COURTS OF LAW
OR SUCH STATE...."  1 STAT. 88. 

/19/  HOYT V. FLORIDA, AS HAD FAY V. NEW YORK, 332 U.S. 261, 289 -
290 (1947), ALSO REFERRED TO THE HISTORIC VIEW THAT JURY SERVICE COULD
CONSTITUTIONALLY BE CONFINED TO MALES: "WE NEED NOT, HOWEVER, ACCEPT
APPELLANT'S INVITATION TO CANVASS IN THIS CASE THE CONTINUING VALIDITY
OF THIS COURT'S DICTUM IN STRAUDER V. WEST VIRGINIA, 100 U.S. 303, 310,
TO THE EFFECT THAT A STATE MAY CONSTITUTIONALLY 'CONFINE' JURY DUTY 'TO
MALES.'  THIS CONSTITUTIONAL PROPOSITION HAS GONE UNQUESTIONED FOR MORE
THAN EIGHTY YEARS IN THE DECISIONS OF THE COURT, SEE FAY V. NEW YORK,
SUPRA, AT 289 - 290, AND HAD BEEN REFLECTED, UNTIL 1957, IN
CONGRESSIONAL POLICY RESPECTING JURY SERVICE IN THE FEDERAL COURTS
THEMSELVES."  368 U.S., AT 60.  (FOOTNOTE OMITTED.)  SEE ALSO GLASSER
V. UNITED STATES, 315 U.S. 60, 64 - 65, 85 - 86 (1942). 

IT IS MOST INTERESTING TO NOTE THAT STRAUDER V. WEST VIRGINIA ITSELF
STATED:  "(THE CONSTITUTION OF JURIES IS A VERY ESSENTIAL PART OF THE
PROTECTION SUCH A MODE OF TRIAL IS INTENDED TO SECURE.  THE VERY IDEA
OF A JURY IS A BODY OF MEN COMPOSED OF THE PEERS OR EQUALS OF THE
PERSON WHOSE RIGHTS IT IS SELECTED OR SUMMONED TO DETERMINE; THAT IS,
OF HIS NEIGHBORS, FELLOWS, ASSOCIATES, PERSONS HAVING THE SAME LEGAL
STATUS IN SOCIETY AS THAT WHICH HE HOLDS."  100 U.S. 303, 308 (1880). 

MR. CHIEF JUSTICE BURGER CONCURS IN THE RESULT. 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE COURT'S OPINION REVERSES A CONVICTION WITHOUT A SUGGESTION, MUCH
LESS A SHOWING, THAT THE APPELLANT HAS BEEN UNFAIRLY TREATED OR
PREJUDICED IN ANY WAY BY THE MANNER IN WHICH HIS JURY WAS SELECTED.  IN
SO DOING, THE COURT INVALIDATES A JURY SELECTION SYSTEM WHICH IT
APPROVED BY A SUBSTANTIAL MAJORITY ONLY 13 YEARS AGO.  I DISAGREE WITH
THE COURT AND WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF
LOUISIANA. 

THE MAJORITY OPINION CANVASSES VARIOUS OF OUR JURY TRIAL CASES,
BEGINNING WITH SMITH V. TEXAS, 311 U.S. 128 (1940).  RELYING ON
CAREFULLY CHOSEN QUOTATIONS, IT CONCLUDES THAT THE "UNMISTAKABLE
IMPORT" OF OUR CASES IS THAT THE FAIR-CROSS-SECTION REQUIREMENT "IS AN
ESSENTIAL COMPONENT OF THE SIXTH AMENDMENT RIGHT TO A JURY TRIAL."  I
DISAGREE.  FAIRLY READ, THE ONLY "UNMISTAKABLE IMPORT"  OF THOSE CASES
IS THAT DUE PROCESS AND EQUAL PROTECTION PROHIBIT JURY SELECTION
SYSTEMS WHICH ARE LIKELY TO RESULT IN BIASED OR PARTIAL JURIES.  SMITH
V. TEXAS SUPRA, CONCERNED THE EQUAL PROTECTION CLAIM OF A NEGRO WHO WAS
INDICTED BY A GRAND JURY FROM WHICH NEGRES HAD BEEN SYSTEMATICALLY
EXCLUDED.  GLASSER V. UNITED STATES, 315 U.S. 60 (1942), DEALT WITH
ALLEGATIONS THAT THE ONLY WOMEN SELECTED FOR JURY SERVICE WERE MEMBERS
OF A PRIVATE ORGANIZATION WHICH HAD CONDUCTED PRO-PROSECUTION CLASSES
FOR PROSPECTIVE JURORS.  BROWN V. ALLEN, 344 U.S. 443 (1953), REJECTED
THE EQUAL PROTECTION AND DUE PROCESS CONTENTIONS OF SEVERAL BLACK
DEFENDANTS THAT MEMBERS OF THEIR RACE HAD BEEN DISCRIMINATORILY
EXCLUDED FROM THEIR JURIES.  CARTER V. JURY COMM'N, 396 U.S. 320
(1970), SIMILARLY DEALT WITH EQUAL PROTECTION CHALLENGES TO A JURY
SELECTION SYSTEM, BUT THE PERSONS CLAIMING SUCH RIGHTS WERE BLACKS WHO
HAD SOUGHT TO SERVE AS JURORS. 

IN HOYT V. FLORIDA, 368 U.S. 57 (1961), THIS COURT GAVE PLENARY
CONSIDERATION TO CONTENTIONS THAT A SYSTEM SUCH AS LOUISIANA'S DEPRIVED
A DEFENDANT OF EQUAL PROTECTION AND DUE PROCESS.  THESE CONTENTIONS
WERE REJECTED, DESPITE CIRCUMSTANCES WHICH WERE MUCH MORE SUGGESTIVE OF
POSSIBLE BIAS AND PREJUDICE THAN ARE THOSE HERE--THE DEFENDANT IN HOYT
WAS A WOMAN WHOSE DEFENSE TO CHARGES OF MURDERING HER HUSBAND WAS THAT
SHE HAD BEEN DRIVEN TEMPORARILY INSANE BY HIS SUSPECTED INFIDELITY AND
BY HIS REJECTION OF HER EFFORTS AT RECONCILIATION.  ID., AT 58 - 59. 
THE COMPLETE SWING OF THE JUDICIAL PENDULUM 13 YEARS LATER MUST DEPEND
FOR ITS VALIDITY ON THE PROPOSITION THAT DURING THOSE YEARS THINGS HAVE
CHANGED IN CONSTITUTIONALLY SIGNIFICANT WAYS.  I AM NOT PERSUADED OF
THE SUFFICIENCY OF EITHER OF THE MAJORITY'S PROFFERED EXPLANATIONS AS
TO INTERVENING EVENTS. 

THE FIRST DETERMINATIVE EVENT, IN THE COURT'S VIEW, IS DUNCAN V.
LOUISIANA, 391 U.S. 145 (1968).  BECAUSE THE SIXTH AMENDMENT WAS THERE
HELD APPLICABLE TO THE STATES, THE COURT FEELS FREE TO DISMISS HOYT AS
A CASE WHICH DEALT WITH ENTIRELY DIFFERENT ISSUES--EVEN THOUGH IN FACT
IT PRESENTED THE IDENTICAL PROBLEM.  BUT DUNCAN'S RATIONALE IS A GOOD
DEAL LESS EXPANSIVE THAN IS SUGGESTED BY THE COURT'S PRESENT
INTERPRETATION OF THAT CASE.  DUNCAN RESTS ON THE FOLLOWING REASONING: 

     "THE TEST FOR DETERMINING WHETHER A RIGHT EXTENDED BY THE
FIFTH

  AND SIXTH AMENDMENTS WITH RESPECT TO FEDERAL CRIMINAL PROCEEDINGS

  IS ALSO PROTECTED AGAINST STATE ACTION BY THE FOURTEENTH

AMENDMENT HAS BEEN PHRASED IN A VARIETY OF WAYS IN THE OPINIONS

  OF THIS COURT.  THE QUESTION HAS BEEN ASKED WHETHER A RIGHT IS

  AMONG THOSE '"FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE WHICH

  LIE AT THE BASE OF ALL OUR CIVIL AND POLITICAL INSTITUTIONS,"'

  POWELL V. ALABAMA, 287 U.S. 45, 67 (1932); WHETHER IT IS 'BASIC

  IN OUR SYSTEM OF JURISPRUDENCE,' IN RE OLIVER, 333 U.S. 257, 273

  (1948); AND WHETHER IT IS 'A FUNDAMENTAL RIGHT, ESSENTIAL TO A

  FAIR TRIAL,' GIDEON V. WAINWRIGHT, 372 U.S. 335, 343 - 344

  (1963); MALLOY V. HOGAN, 378 U.S. 1, 6 (1964); POINTER V. TEXAS,

  380 U.S. 400, 403 (1965.... BECAUSE WE BELIEVE THAT TRIAL BY JURY

  IN CRIMINAL CASES IS FUNDAMENTAL TO THE AMERICAN SCHEME OF

  JUSTICE, WE HOLD THAT THE FOURTEENTH AMENDMENT GUARANTEES A RIGHT

  OF JURY TRIAL IN ALL CRIMINAL CASES...."  ID., AT 148 - 149. 

THAT THIS IS A STURDY TEST, ONE NOT READILY SATISFIED BY EVERY
DISCREPANCY BETWEEN FEDERAL AND STATE PRACTICE, WAS MADE CLEAR NOT ONLY
IN WILLIAMS V. FLORIDA, 399 U.S. 78 (1970), AND APODACA V. OREGON, 406
U.S. 404 (1972), BUT ALSO IN DUNCAN ITSELF.  IN EXPLAINING THE
CONCLUSION THAT A JURY TRIAL IS FUNDAMENTAL TO OUR SCHEME OF JUSTICE,
AND THEREFORE SHOULD BE REQUIRED OF THE STATES, THE COURT POINTED OUT
THAT JURY TRIAL WAS DESIGNED TO BE A DEFENSE "AGAINST ARBITRARY LAW
ENFORCEMENT," 391 U.S., AT 156, AND "TO PREVENT OPPRESSION BY THE
GOVERNMENT."  ID., AT 155.  THE COURT STATED ITS BELIEF THAT JURY TRIAL
FOR SERIOUS OFFENSES IS "ESSENTIAL FOR PREVENTING MISCARRIAGES OF
JUSTICE AND FOR ASSURING THAT FAIR TRIALS ARE PROVIDED FOR ALL
DEFENDANTS."  ID., AT 158. 

I CANNOT CONCEIVE THAT TODAY'S DECISION IS NECESSARY TO GUARD
AGAINST OPPRESSIVE OR ARBITRARY LAW ENFORCEMENT, OR TO PREVENT
MISCARRIAGES OF JUSTICE AND TO ASSURE FAIR TRIALS.  ESPECIALLY IS THIS
SO WHEN THE CRIMINAL DEFENDANT INVOLVED MAKES NO CLAIMS OF PREJUDICE OR
BIAS.  THE COURT DOES ACCORD SOME SLIGHT ATTENTION TO JUSTIFYING ITS
RULING IN TERMS OF THE BASIS ON WHICH THE RIGHT TO JURY TRIAL WAS READ
INTO THE FOURTEENTH AMENDMENT.  IT CONCLUDES THAT THE JURY IS NOT
EFFECTIVE, AS A PROPHYLAXIS AGAINST ARBITRARY PROSECUTORIAL AND
JUDICIAL POWER, IF THE "JURY POOL IS MADE UP OF ONLY SPECIAL SEGMENTS
OF THE POPULACE OR IF LARGE, DISTINCTIVE GROUPS ARE EXCLUDED FROM THE
POOL."  ANTE, AT 530.  IT FAILS, HOWEVER, TO PROVIDE ANY SATISFACTORY
EXPLANATION OF THE MECHANISM BY WHICH THE LOUISIANA SYSTEM UNDERMINES
THE PROPHYLACTIC ROLE OF THE JURY, EITHER IN GENERAL OR IN THIS CASE. 
THE BEST IT CAN DO IS TO POSIT "'A FLAVOR, A DISTINCT QUALITY,'" WHICH
ALLEGEDLY IS LOST IF EITHER SEX IS EXCLUDED.  ANTE, AT 532.  HOWEVER,
THIS "FLAVOR" IS NOT OF SUCH IMPORTANCE THAT THE CONSTITUTION IS
OFFENDED IF ANY GIVEN PETIT JURY IS NOT SO ENRICHED.  ANTE, AT 538. 
THIS SMACKS MORE OF MYSTICISM THAN OF LAW.  THE COURT DOES NOT EVEN
PURPORT TO PRACTICE ITS MYSTICISM IN A CONSISTENT FASHION--PRESUMABLY
DOCTORS, LAWYERS, AND OTHER GROUPS, WHOSE FREQUENT EXEMPTION FROM JURY
SERVICE IS ENDORSED BY THE MAJORITY, ALSO OFFER QUALITIES AS DISTINCT
AND IMPORTANT AS THOSE AT ISSUE HERE. 

IN HOYT, THIS COURT CONSIDERED A STRONGER DUE PROCESS CLAIM THAN IS
BEFORE IT TODAY, BUT FOUND THAT FUNDAMENTAL FAIRNESS HAD NOT BEEN
OFFENDED.  I DO NOT UNDERSTAND HOW OUR INTERVENING DECISION IN DUNCAN
CAN SUPPORT A DIFFERENT RESULT.  AFTER ALL, DUNCAN IMPORTED THE SIXTH
AMENDMENT INTO THE DUE PROCESS CLAUSE ONLY BECAUSE, AND ONLY TO THE
EXTENT THAT, THIS WAS PERCEIVED TO BE REQUIRED BY FUNDAMENTAL
FAIRNESS. 

THE SECOND CHANGE SINCE HOYT THAT APPEARS TO UNDERGIRD THE COURT'S
TURNABOUT IS SOCIETAL IN NATURE, ENCOMPASSING BOTH OUR HIGHER DEGREE OF
SENSITIVITY TO DISTINCTIONS BASED ON SEX, AND THE "EVOLVING NATURE OF
THE STRUCTURE OF THE FAMILY UNIT IN AMERICAN SOCIETY."  ANTE, AT 535 N.
17.  THESE ARE MATTERS OF DEGREE, AND IT IS PERHAPS OF SOME
SIGNIFICANCE THAT IN 1961 MR. JUSTICE HARLAN SAW FIT TO REFER TO THE
"ENLIGHTENED EMANCIPATION OF WOMEN FROM THE RESTRICTIONS AND
PROTECTIONS OF BYGONE YEARS, AND THEIR ENTRY INTO MANY PARTS OF
COMMUNITY LIFE FORMERLY CONSIDERED TO BE RESERVED TO MEN."  HOYT, 368
U.S., AT 61 - 62.  NONETHELESS, IT MAY BE FAIR TO CONCLUDE THAT THE
LOUISIANA SYSTEM IS IN FACT AN ANACHRONISM, INAPPROPRIATE AT THIS "TIME
OR PLACE."  ANTE, AT 537.  BUT SURELY CONSTITUTIONAL ADJUDICATION IS A
MORE CANALIZED FUNCTION THAN ENFORCING AS AGAINST THE STATES THIS
COURT'S PERCEPTION OF MODERN LIFE. 

ABSENT ANY SUGGESTION THAT APPELLANT'S TRIAL WAS UNFAIRLY CONDUCTED,
OR THAT ITS RESULT WAS UNRELIABLE, I WOULD NOT REQUIRE LOUISIANA TO
RETRY HIM (ASSUMING THE STATE CAN ONCE AGAIN PRODUCE ITS EVIDENCE AND
WITNESSES) IN ORDER TO IMPOSE ON HIM THE SANCTIONS WHICH ITS LAWS
PROVIDE. 

WILLIAM MCM.  KING ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLANT. 

KENDALL L. VICK, ASSISTANT ATTORNEY GENERAL OF LOUISIANA, ARGUED THE
CAUSE FOR APPELLEE.  ON THE BRIEF WERE WILLIAM J. GUSTE, JR., ATTORNEY
GENERAL, WALTER SMITH, AND WOODROW W. ERWIN. 
..END :













UNITED STATES V. MAZURIE, 419 U.S. 544 


       UNITED STATES V. MAZURIE ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 TENTH CIRCUIT

        NO. 73 - 1018.  ARGUED NOVEMBER 12, 1974--DECIDED JANUARY

           21, 1975; (487 F.2D 14, REVERSED.) 


    RESPONDENTS, WHO OPERATED A BAR ON NON-INDIAN LAND ON THE

  OUT-SKIRTS OF AN UNINCORPORATED VILLAGE WITHIN THE WIND RIVER

  RESERVATION AND WHO HAD BEEN DENIED A TRIBAL LIQUOR LICENSE BY

  THE WIND RIVER TRIBES PURSUANT TO THEIR OPTION UNDER 18 U.S.C.

  1161 TO REGULATE THE INTRODUCTION OF LIQUOR INTO INDIAN COUNTRY,

  WERE CONVICTED AT A NONJURY TRIAL OF INTRODUCING SPIRITUOUS

  BEVERAGES INTO INDIAN COUNTRY IN VIOLATION OF 18 U.S.C. 1154. 

  SECTION 1154 (C) DEFINES THE TERM "INDIAN COUNTRY" AS NOT

  INCLUDING FEE-PATENTED LANDS IN NON-INDIAN COMMUNITIES, BUT DOES

  NOT DEFINE THE TERM "NON-INDIAN COMMUNITIES."  IN ENTERING

JUDGMENT OF CONVICTION, THE DISTRICT COURT, ON THE BASIS OF

  TESTIMONY ABOUT THE BAR'S LOCATION AND THE RACIAL COMPOSITION OF

  RESIDENTS OF THE SURROUNDING AREA AS BEING LARGELY INDIAN

  FAMILIES, CONCLUDED THAT THE BAR WAS LOCATED WITHIN "INDIAN

  COUNTRY" AND HELD THAT FEDERAL AUTHORITY COULD REACH NON-INDIANS

  LOCATED ON PRIVATELY HELD LAND WITHIN A RESERVATION'S

  BOUNDARIES.  THE COURT OF APPEALS REVERSED, HOLDING THAT THE

  PROSECUTION HAD NOT MET ITS BURDEN OF PROVING BEYOND A REASONABLE

  DOUBT THAT THE BAR WAS NOT EXCLUDED FROM INDIAN COUNTRY BY THE

  1154 (C) EXCEPTION FOR "FEE-PATENTED LANDS IN NON-INDIAN

  COMMUNTIES"; THAT 1154 WAS FATALLY DEFECTIVE BECAUSE OF THE

  INDEFINITENESS AND VAGUENESS OF THE TERM "NON-INDIAN COMMUNITY";

AND THAT INSOFAR AS 1161 AUTHORIZED INDIAN TRIBES TO CONTROL THE

  INTRODUCTION OF ALCHOLIC BEVERAGES ONTO NON-INDIAN LAND, IT WAS

  AN INVALID CONGRESSIONAL ATTEMPT TO DELEGATE AUTHORITY.  HELD: 

     1.  SECTION 1154 IS NOT UNCONSTITUTIONALLY VAGUE.  GIVEN THE

  NATURE OF THE BAR'S LOCATION AND THE SURROUNDING POPULATION, THE

  STATUTE WAS SUFFICIENT TO ADVISE RESPONDENTS THAT THEIR BAR WAS

  NOT EXCEPTED FROM TRIBAL REGULATION BY VIRTUE OF BEING LOCATED IN

  A NON-INDIAN COMMUNITY.  PP. 550 - 553. 

     2.  CONGRESS HAS THE AUTHORITY UNDER ART. I, 8, OF THE

  CONSTITUTION TO REGULATE THE DISTRIBUTION OF ALCHOLIC BEVERAGES

  BY ESTABLISHMENTS SUCH AS RESPONDENTS' BAR.  SUCH AUTHORITY IS

ADEQUATE, EVEN THOUGH THE LAND WAS HELD IN FEE BY NON-INDIANS AND

  THE PERSONS REGULATED WERE NON-INDIANS.  PP. 553 - 556. 

     3.  CONGRESS COULD VALIDLY DELEGATE SUCH AUTHORITY TO A

  RESERVATION'S TRIBAL COUNCIL.  THE INDEPENDENT AUTHORITY OF

  INDIAN TRIBES OVER MATTERS THAT AFFECT THE INTERNAL AND SOCIAL

  RELATIONS OF TRIBAL LIFE IS SUFFICIENT TO PROTECT CONGRESS'

  DECISION TO VEST IN TRIBAL COUNCILS THIS PORTION OF ITS OWN

  AUTHORITY "TO REGULATE COMMERCE ... WITH THE INDIAN TRIBES" UNDER

  ART. I, 8.  PP. 556 - 557. 

     REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS WERE CONVICTED OF INTRODUCING SPIRITUOUS BEVERAGES
INTO INDIAN COUNTRY, IN VIOLATION OF 18 U.S.C. 1154.  /1/  THE COURT OF
APPEALS FOR THE TENTH CIRCUIT REVERSED.  487 F. 2D 14 (1973).  WE
GRANTED CERTIORARI, 415 U.S. 947 (1974), IN ORDER TO CONSIDER THE
SOLICITOR GENERAL'S CONTENTIONS THAT 18 U.S.C. 1154 IS NOT
UNCONSTITUTIONALLY VAGUE, THAT CONGRESS HAS THE CONSTITUTIONAL
AUTHORITY TO CONTROL THE SALE OF ALCOHOLIC BEVERAGES BY NON-INDIANS ON
FEE-PATENTED LAND WITHIN THE BOUNDARIES OF AN INDIAN RESERVATION, AND
THAT CONGRESS COULD VALIDLY MAKE A DELEGATION OF THIS AUTHORITY TO A
RESERVATION'S TRIBAL COUNCIL.  WE REVERSE THE COURT OF APPEALS. 

        I 

THE WIND RIVER RESERVATION WAS ESTABLISHED BY TREATY IN 1868. 
LOCATED IN A RATHER ARID PORTION OF CENTRAL WYOMING, AT LEAST SOME OF
ITS 2,300,000 ACRES HAVE BEEN DESCRIBED BY MR JUSTICE CARDOZO AS "FAIR
AND FERTILE,"  SHOSHONE TRIBE V. UNITED STATES, 299 U.S. 476, 486
(1937).  IT STRADDLES THE WIND RIVER, WITH ITS REMARKABLE CANYON, AND
LIES IN A MILE-HIGH BASIN AT THE FOOT OF THE WIND RIVER MOUNTAINS,
WHOSE RUGGED, GLACIATED PEAKS AND RIDGES FORM A PORTION OF THE
CONTINENTAL DIVIDE.  /2/  THE RESERVATION IS OCCUPIED BY THE SHOSHONE
AND ARAPAHOE TRIBES.  ALTHOUGH THESE TRIBES WERE ONCE "ANCESTRAL FOES,"
IBID., THEY ARE TODAY JOINTLY KNOWN AS THE WIND RIVER TRIBES.  AS A
RESULT OF VARIOUS PATENTS, SUBSTANTIAL TRACTS OF NON-INDIAN-HELD LAND
ARE SCATTERED WITHIN THE RESERVATION'S BOUNDARIES.  IT WAS ON SUCH NON
INDIAN LAND THAT RESPONDENTS MARTIN AND MARGARET MAZURIE OPERATED THEIR
BAR, WHICH DID BUSINESS UNDER THE CORPORATE NAME OF THE BLUE BULL,
INC. 

BEFORE 1953 FEDERAL LAW GENERALLY PROHIBITED THE INTRODUCTION OF
ALCOHOLIC BEVERAGES INTO "INDIAN COUNTRY."  18 U.S.C. 1154 (A). 
"INDIAN COUNTRY" WAS DEFINED BY 18 U.S.C. 1151 TO INCLUDE NON-INDIAN
HELD LANDS "WITHIN THE LIMITS OF ANY INDIAN RESERVATION."  /3/  IN
1949, THE TERM WAS GIVEN A NARROWER MEANING, INSOFAR AS RELEVANT TO THE
LIQUOR PROHIBITION, SO AS TO EXCLUDE BOTH FEE-PATENTED LANDS WITHIN
"NON-INDIAN COMMUNITIES" AND RIGHTS-OF-WAY THROUGH RESERVATIONS.  ACT
OF MAY 24, 1949, 63 STAT. 94, 18 U.S.C. 1154 (C), SUPRA, N. 1.  THE
QUOTED TERM IS NOT DEFINED, A FACT WHICH CREATS PROBLEMS WITH WHICH WE
SHALL SHORTLY DEAL.  IN 1953 CONGRESS PASSED LOCAL-OPTION LEGISLATION
ALLOWING INDIAN TRIBES, WITH THE APPROVAL OF THE SECRETARY OF THE
INTERIOR, TO REGULATE THE INTRODUCTION OF LIQUOR INTO INDIAN COUNTRY,
SO LONG AS STATE LAW WAS NOT VIOLATED.  ACT OF AUG. 15, 1953, 67 STAT.
586, 18 U.S.C. 1161.  /4/  THE WIND RIVER TRIBES RESPONDED TO THIS
OPTION BY ADOPTING AN ORDINANCE WHICH PERMITTED LIQUOR SALES ON THE
RESERVATION IF MADE IN ACCORDANCE WITH WYOMING LAW.  WHEN THE BLUE BULL
ORGINALLY OPENED, A LIQUOR LICENSE HAD BEEN ISSUED TO IT BY FREMONT
COUNTY, WYO., AND ITS OPERATION WAS THEREFORE CONSISTENT WITH THAT
TRIBAL ORDINANCE.  BUT IN 1971 THE WIND RIVER TRIBES ADOPTED A NEW
LIQUOR ORDINANCE, ORDINANCE NO. 26.  /5/  THAT ORDINANCE REQUIRED THAT
RETAIL LIQUOR OUTLETS WITHIN INDIAN COUNTRY OBTAIN BOTH TRIBAL AND
STATE LICENSES. 

IN 1972, THE MAZURIES APPLIED FOR A TRIBAL LICENSE, AFTER WARNINGS
THAT THEY WOULD BE SUBJECT TO CRIMINAL CHARGES IF THEY CONTINUED TO
OPERATE WITHOUT ONE.  THE TRIBES HELD A PUBLIC HEARING WHICH MARTIN
MAZURIE AND THE MAZURIES'  LAWYER ATTENDED.  WITNESSES PROTESTED GRANT
OF THE LICENSE, COMPLAINING OF SINGING AND SHOOTING AT LATE HOURS,
DISTURBANCES OF ELDERLY RESIDENTS OF A NEARBY HOUSING DEVELOPMENT, AND
THE PERMITTING OF INDIAN MINORS IN THE BAR.  THE APPLICATION WAS
DENIED. 

THEREAFTER, THE MAZURIES CLOSED THE BLUE BULL.  THREE WEEKS LATER
THEY REOPENED IT.  IT REMAINED IN OPERATION FOR APPROXIMATELY A YEAR,
UNTIL FEDERAL OFFICERS SEIZED ITS ALCOHOLIC BEVERAGES, AND THIS
CRIMINAL PROSECUTION WAS INITIATED.  /6/ 

THE CASE WAS TRIED TO THE DISTRICT COURT WITHOUT A JURY.  SINCE MOST
OF THE FACTUAL ISSUES WERE DISPOSED OF BY STIPULATIONS, /7/  THE
TESTIMONY AT TRIAL PRIMARILY DEALT WITH WHETHER THE BAR WAS WITHIN
"INDIAN COUNTRY."  ON THE BASIS OF TESTIMONY ABOUT THE BLUE BULL'S
LOCATION, AND ABOUT THE RACIAL COMPOSITION OF RESIDENTS OF THE
SURROUNDING AREA, THE COURT CONCLUDED THAT THE BAR WAS SO LOCATED. 
HOLDING THAT FEDERAL AUTHORITY COULD REACH NON-INDIANS LOCATED ON
PRIVATELY HELD LAND WITHIN A RESERVATION'S BOUNDARIES, THE COURT
ENTERED JUDGMENTS OF CONVICTION.  EACH RESPONDENT WAS FINED $100. 

THE COURT OF APPEALS REVERSED THE CONVICTIONS.  IT CONCLUDED THAT
THE PROSECUTION HAD NOT CARRIED ITS BURDEN OF PROVING BEYOND A
REASONABLE DOUBT THAT THE BAR WAS NOT EXCLUDED FROM INDIAN COUNTRY BY
THE 1154 (C) EXCEPTION FOR "FEE-PATENTED LANDS IN NON-INDIAN
COMMUNITIES."  /8/  THIS CONCLUSION WAS TIED DIRECTLY TO THE MORE BASIC
HOLDING: 

"(THE TERMINOLOGY OF 'NON-INDIAN COMMUNITY' IS NOT CAPABLE OF
SUFFICIENTLY PRECISE DEFINITION TO SERVE AS AN ELEMENT OF THE CRIME
HEREIN CONSIDERED....  THE STATUTE IS THUS FATALLY DEFECTIVE BY REASON
OF THIS INDEFINITE AND VAGUE TERMINOLOGY."  487 F.2D, AT 18. 

AS A SECOND BASIS FOR REVERSAL, THE COURT HELD THAT INSOFAR AS 18
U.S.C. 1161 AUTHORIZED INDIAN TRIBES TO ADOPT ORDINANCES CONTROLLING
THE INTRODUCTION BY NON-INDIANS OF ALCOHOLIC BEVERAGES ONTO NON-INDIAN
LAND, IT WAS AN INVALID CONGRESSIONAL ATTEMPT TO DELEGATE AUTHORITY. 
THE COURT OF APPEALS ALSO SUGGESTED THAT CONGRESS ITSELF COULD NOT
REGULATE THE SALE OF ALCOHOL BY NON-INDIANS ON FEE-PATENTED NON-INDIAN
LANDS WITHIN INDIAN RESERVATIONS. 

        II 

IT IS WELL ESTABLISHED THAT VAGUENESS CHALLENGES TO STATUTES WHICH
DO NOT INVOLVE FIRST AMENDMENT FREEDOMS MUST BE EXAMINED IN THE LIGHT
OF THE FACTS OF THE CASE AT HAND.  UNITED STATES V. NATIONAL DAIRY
PRODUCTS CORP., 372 U.S. 29 (1963).  IN DETERMINING WHETHER 1154 (C) IS
UNCONSTITUTIONALLY VAGUE AS TO RESPONDENTS, WE MUST THEREFORE FIRST
CONSIDER THE EVIDENCE AS TO THE LOCATION OF THE BLUE BULL.  /9/ 

THE EVIDENCE SHOWED THAT THE BAR WAS LOCATED ON THE OUTSKIRTS OF
FORT WASHAKIE, WYO., AN UNINCORPORATED VILLAGE BEARING THE NAME OF THE
MAN WHO WAS CHIEF OF THE SHOSHONES DURING THEIR EARLY YEARS ON THE WIND
RIVER RESERVATION.  SHOSHONE TRIBE V. UNITED STATES, 299 U.S., AT 486;
HARMSTON, SUPRA, N. 2, AT 3 - 4.  FORT WASHAKIE IS THE LOCATION OF THE
WIND RIVER AGENCY OF THE BUREAU OF INDIAN AFFAIRS, AND OF THE TRIBAL
HEADQUARTERS OF THE WIND RIVER TRIBES.  ONE WITNESS TESTIFIED THAT THE
VILLAGE WAS AN "INDIAN COMMUNITY."  APP 49.  THE EVIDENCE ALSO SHOWED
THAT OF THE 212 FAMILIES LIVING WITHIN A 20-SQUARE-MILE AREA ROUGHLY
CENTERED ON THE BLUE BULL, 170 WERE INDIAN FAMILIES, 41 WERE NON
INDIANS, AND ONE WAS MIXED.  A LARGE-SCALE UNITED STATES GEOLOGICAL
SURVEY MAP WAS INTRODUCED TO SHOW THE LIMITS OF THIS HOUSING SURVEY. 
IT INDICATES THAT THE SURVEY INCLUDED ALL SETTLEMENTS WITHIN THE FORT
WASHAKIE AREA, AND THAT THE NEAREST NOT-INCLUDED CONCENTRATIONS OF
HOUSING WERE AT SAINT JAMES CHURCH AND ETHETE, SOME FOUR MILES BEYOND
THE BOUNDARIES OF THE SURVEY AND SOME SIX MILES FROM FORT WASHAKIE. 
THE EVIDENCE ALSO ESTABLISHED THAT THE STATE SCHOOL SERVING FORT
WASHAKIE, AND LOCATED ABOUT TWO AND ONE-HALF MILES FROM THE BLUE BULL,
HAD A TOTAL ENROLLMENT OF 243 STUDENTS, 223 OF WHOM WERE INDIAN. 

OTHER EVIDENCE BEARING ON WHETHER THE BLUE BULL WAS LOCATED IN A NON
INDIAN COMMUNITY WAS MARTIN MAZURIE'S TESTIMONY THAT THE BAR SERVED
BOTH INDIANS AND NON-INDIANS, AND THAT: "WE ARE KIND OF OUT THERE BY
OURSELVES, YOU KNOW."  APP. 70.  A TRANSCRIPT OF THE HEARING ON THE
MAZURIES' APPLICATION TO THE TRIBES FOR A RETAIL LIQUOR LICENSE WAS
ALSO ADMITTED AT THE TRIAL.  THAT TRANSCRIPT INDICATES THAT THE BLUE
BULL WAS LOCATED NEAR A PUBLIC HOUSING DEVELOPMENT POPULATED LARGELY IF
NOT ENTIRELY BY INDIANS.  RESIDENTS OF THIS DEVELOPMENT COMPLAINED THAT
PERSONS LEAVING THE BAR LATE AT NIGHT, AND FOR ONE REASON OR ANOTHER
HAVING EITHER NO TRANSPORTATION OR NO DESTINATION, WOULD WANDER INTO
THE DEVELOPMENT. 

THERE WAS NO TESTIMONY THAT THE BLUE BULL WAS IN A NON-INDIAN
COMMUNITY.  THE DEFENSE DID OBTAIN ACKNOWLEDGMENTS BY PROSECUTION
WITNESSES THAT THEY COULD NOT PRECISELY STATE THE BOUNDARIES OF THE
FORT WASHAKIE INDIAN COMMUNITY.  OTHERWISE, EXAMINATION BY THE DEFENSE
WAS DIRECTED AT ESTABLISHING THAT THE TERM "INDIAN"  WAS WITHOUT
PRECISE MEANING, AND THAT THE STATE OF WYOMING GENERALLY HAD
JURISDICTION OVER NON-INDIANS AND THEIR LANDS WITHIN THE RESERVATION. 

WE THINK THAT THE FOREGOING EVIDENCE WAS SUFFICIENT TO JUSTIFY THE
DISTRICT COURT'S IMPLIED CONCLUSION THAT FORT WASHAKIE AND ITS
SURROUNDING SETTLEMENTS DID NOT COMPOSE A NON-INDIAN COMMUNITY.  WE DO
NOT READ THE OPINION OF THE COURT OF APPEALS AS REACHING A CONCLUSION
CONTRARY TO THAT WE HAVE JUST STATED.  THAT COURT INSTEAD BASED ITS
DECISION ON THE PROPOSITION THAT SUCH PROOF DID NOT GO FAR ENOUGH, A
VIEW GENERATED BY ITS OPINION OF THE REQUIREMENTS THIS STATUTE MUST
MEET IN ORDER TO AVOID THE VICE OF VAGUENESS.  THE COURT OF APPEALS WAS
LOOKING FOR PROOF BEYOND A REASONABLE DOUBT OF PRECISELY DEFINED
CONCEPTS OF "INDIAN" AND "COMMUNITY."  WE GATHER THAT IT EXPECTED
PERSONS TREATED AS "INDIANS" IN THE HOUSING AND SCHOOL SURVEYS TO BE
PROVED TO SATISFY A SPECIFIC STATUTORY DEFINITION.  SIMILARLY, IT
APPARENTLY EXPECTED THAT PROOF CONCERNING THE "COMMUNITY" SHOULD HAVE
CONFORMED TO SOME SPECIFIC STATUTORY DEFINITION, PRESUMABLY ONE KEYED
TO A GEOGRAPHICAL AREA WITH PRECISE BOUNDARIES. 

WE BELIEVE THAT THE COURT OF APPEALS ERRED BY HOLDING THAT THE
CONSTITUTION REQUIRES PROOF OF SUCH PREVISELY DEFINED CONCEPTS.  THE
PROSECUTION WAS REQUIRED TO DO NO MORE THAN PROVE THAT THE BLUE BULL
WAS NOT LOCATED IN A NON-INDIAN COMMUNITY, WHERE THAT TERM HAS A
MEANING SUFFICIENTLY PRECISE FOR A MAN OF AVERAGE INTELLIGENCE TO
"REASONABLY UNDERSTAND THAT HIS CONTEMPLATED CONDUCT IS PROSCRIBED." 
UNITED STATES V. NATIONAL DAIRY PRODUCTS CORP., 372 U.S., AT 32 - 33. 
GIVEN THE NATURE OF THE BLUE BULL'S LOCATION AND SURROUNDING
POPULATION, THE STATUTE WAS SUFFICIENT TO ADVISE THE MAZURIES THAT
THEIR BAR WAS NOT EXCEPTED FROM TRIBAL REGULATION BY VIRTUE OF BEING
LOCATED IN A NON-INDIAN COMMUNITY.  /10/

        III 

THE COURT OF APPEALS EXPRESSED DOUBT THAT "THE GOVERNMENT HAS THE
POWER TO REGULATE A BUSINESS ON THE LAND IT GRANTED IN FEE WITHOUT
RESTRICTIONS."  487 F. 2D, AT 18.  BECAUSE THAT COURT WENT ON TO HOLD
THAT EVEN IF CONGRESS DID POSSESS SUCH POWER, IT COULD NOT BE DELEGATED
TO AN INDIAN TRIBE, THAT COURT DID NOT FIND IT NECESSARY TO RESOLVE THE
ISSUE OF CONGRESSIONAL POWER.  WE DO, HOWEVER, REACH THE ISSUE, BECAUSE
WE HEREINAFTER CONCLUDE THAT FEDERAL AUTHORITY WAS PROPERLY DELEGATED
TO THE INDIAN TRIBES.  WE CONCLUDE THAT FEDERAL AUTHORITY IS ADEQUATE,
EVEN THOUGH THE LANDS WERE HELD IN FEE BY NON-INDIANS, AND EVEN THOUGH
THE PERSONS REGULATED WERE NON-INDIANS. 

ARTICLE I, 8, OF THE CONSTITUTION GIVES CONGRESS POWER "(TO REGULATE
COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL STATES, AND WITH
THE INDIAN TRIBES."  THIS COURT HAS REPEATEDLY HELD THAT THIS CLAUSE
AFFORDS CONGRESS THE POWER TO PROHIBIT OR REGULATE THE SALE OF
ALCOHOLIC BEVERAGES TO TRIBAL INDIANS, WHEREVER SITUATED, AND TO
PROHIBIT OR REGULATE THE INTRODUCTION OF ALCOHOLIC BEVERAGES INTO
INDIAN COUNTRY.  /11/  UNITED STATES V. HOLLIDAY, 3 WALL.  407, 417 -
418 (1866); UNITED STATES V. FORTY-THREE GALLONS OF WHISKEY, 93 U.S.
188, 194 - 195 (1876); EX PARTE WEBB, 225 U.S. 663, 683 - 684 (1912);
PERRIN V. UNITED STATES, 232 U.S. 478, 482 (1914); JOHNSON V. GEARLDS,
234 U.S. 422, 438 - 439 (1914); UNITED STATES V. NICE, 241 U.S. 591,
597 (1916). 

PERRIN V. UNITED STATES, SUPRA, DEMONSTRATES THE CONTROLLING
PRINCIPLE.  IT DEALT WITH THE SALE OF INTOXICATING BEVERAGES WITHIN
PREMISES OWNED BY NON-INDIANS, ON PRIVATELY HELD LAND IN AN ORGANIZED
NON-INDIAN MUNICIPALITY.  THE LAND ORGINALLY HAD BEEN INCLUDED IN THE
YANKTON SIOUX INDIAN RESERVATION, BUT HAD BEEN CEDED TO THE UNITED
STATES.  THE CESSION AGREEMENT, AS RATIFIED AND CONFIRMED BY CONGRESS,
SPECIFIED THAT ALCOHOLIC BEVERAGES WOULD NEVER BE SOLD ON THE CEDED
LAND.  THE LAND WAS SUBSEQUENTLY OPENED TO PRIVATE NON-INDIAN
SETTLERS.  IN UPHOLDING PERRIN'S CONVICTION, THIS COURT STATED: 

     "THE POWER OF CONGRESS TO PROHIBIT THE INTRODUCTION OF

  INTOXICATING LIQUORS INTO AN INDIAN RESERVATION, WHERESOEVER

  SITUATE, AND TO PROHIBIT TRAFFIC IN SUCH LIQUORS WITH TRIBAL

  INDIANS, WHETHER UPON OR OFF A RESERVATION AND WHETHER WITHIN OR

  WITHOUT THE LIMITS OF A STATE, DOES NOT ADMIT OF ANY DOUBT.  IT

  ARISES IN PART FROM THE CLAUSE IN THE CONSTITUTION INVESTING

  CONGRESS WITH AUTHORITY 'TO REGULATE COMMERCE WITH FOREIGN

  NATIONS, AND AMONG THE SEVERAL STATES, AND WITH THE INDIAN

  TRIBES,' AND IN PART FROM THE RECOGNIZED RELATION OF TRIBAL

INDIANS TO THE FEDERAL GOVERNMENT."  232 U.S., AT 482. 

SEYMOUR V. SUPERINTENDENT, 368 U.S. 351 (1962), IS A MORE RECENT
INDICATION OF CONGRESSIONAL AUTHORITY OVER EVENTS OCCURRING ON NON
INDIAN LAND WITHIN A RESERVATION.  THE CASE CONCERNED AN INDIAN'S
CHALLENGE TO A STATE BURGLARY CONVICTION.  THE INDIAN CONTENDED THAT
BECAUSE THE OFFENSE TOOK PLACE WITHIN "INDIAN COUNTRY," IT WAS WITHIN
THE EXCLUSIVE JURISDICTION OF THE UNITED STATES BY VIRTUE OF 18 U.S.C.
1153.  THIS COURT AGREED, DESPITE THE FACT THAT THE CRIME OCCURRED ON
LAND PATENTED IN FEE TO NON-INDIANS.  WHILE THE OPINION DID NOT ADDRESS
THE CONSTITUTIONAL ISSUE, IT DID REJECT A VARIETY OF STATUTORY
ARGUMENTS FOR EXCLUDING THE CRIME'S SITUS FROM 18 U.S.C. 1151'S
DEFINITION OF "INDIAN COUNTRY."  OF SIGNIFICANCE FOR OUR PURPOSES IS
THE FACT THAT CONGRESS' AUTHORITY TO DEFINE "INDIAN COUNTRY" SO
BROADLY, AND TO SUPERSEDE STATE JURISDICTION WITHIN THE DEFINED AREA,
WENT BOTH UNCHALLENGED BY THE PARTIES AND UNQUESTIONED BY THIS COURT. 
WE HOLD THAT NEITHER THE CONSTITUTION NOR OUR PREVIOUS CASES LEAVE
ANY ROOM FOR DOUBT THAT CONGRESS POSSESSES THE AUTHORITY TO REGULATE
THE DISTRIBUTION OF ALCOHOLIC BEVERAGES BY ESTABLISHMENTS SUCH AS THE
BLUE BULL. 

       IV 

THE COURT OF APPEALS SAID, HOWEVER, THAT EVEN IF CONGRESS POSSESSED
AUTHORITY TO REGULATE THE BLUE BULL, IT COULD NOT DELEGATE SUCH
AUTHORITY TO THE INDIAN TRIBES.  THE COURT REASONED AS FOLLOWS: 

     "THE TRIBAL MEMBERS ARE CITIZENS OF THE UNITED STATES.  IT IS

  DIFFICULT TO SEE HOW SUCH AN ASSOCIATION OF CITIZENS COULD

  EXERCISE ANY DEGREE OF GOVERNMENTAL AUTHORITY OR SOVEREIGNTY OVER

  OTHER CITIZENS WHO DO NOT BELONG, AND WHO CANNOT PARTICIPATE IN

ANY WAY IN THE TRIBAL ORGANIZATION.  THE SITUATION IS IN NO WAY

  COMPARABLE TO A CITY, COUNTY, OR SPECIAL DISTRICT UNDER STATE

  LAWS.  THERE CANNOT BE SUCH A SEPARATE 'NATION' OF UNITED STATES

  CITIZENS WITHIN THE BOUNDARIES OF THE UNITED STATES WHICH HAS ANY

  AUTHORITY, OTHER THAN AS LANDOWNERS, OVER INDIVIDUALS WHO ARE

  EXCLUDED AS MEMBERS. 

        .         .         .         .         . 

"THE PURPORTED DELEGATION OF AUTHORITY TO THE TRIBAL OFFICIALS

  CONTAINED IN 18 U.S.C. 1161 IS THEREFORE INVALID.  CONGRESS

  CANNOT DELEGATE ITS AUTHORITY TO A PRIVATE, VOLUNTARY

  ORGANIZATION, WHICH IS OBVIOUSLY NOT A GOVERNMENTAL AGENCY, TO

  REGULATE A BUSINESS ON PRIVATELY OWNED LANDS, NO MATTER WHERE

  LOCATED.  IT IS OBVIOUS THAT THE AUTHORITY OF CONGRESS UNDER THE

  CONSTITUTION TO REGULATE COMMERCE WITH INDIAN TRIBES IS BROAD,

  BUT IT CANNOT ENCOMPASS THE RELATIONSHIPS HERE CONCERNED."  487

  F. 2D, AT 19. 

THIS COURT HAS RECOGNIZED LIMITS ON THE AUTHORITY OF CONGRESS TO
DELEGATE ITS LEGISLATIVE POWER.  PANAMA REFINING CO. V. RYAN, 293 U.S.
388 (1935).  THOSE LIMITATIONS ARE, HOWEVER, LESS STRINGENT IN CASES
WHERE THE ENTITY EXERCISING THE DELEGATED AUTHORITY ITSELF POSSESSES
INDEPENDENT AUTHORITY OVER THE SUBJECT MATTER.  UNITED STATES V.
CURTISS-WRIGHT EXPORT CORP., 299 U.S. 304, 319 - 322 (1936).  THUS IT
IS AN IMPORTANT ASPECT OF THIS CASE THAT INDIAN TRIBES ARE UNIQUE
AGGREGATIONS POSSESSING ATTRIBUTES OF SOVEREIGNTY OVER BOTH THEIR
MEMBERS AND THEIR TERRITORY, WORCESTER V. GEORGIA, 6 PET. 515, 557
(1832); THEY ARE "A SEPARATE PEOPLE" POSSESSING "THE POWER OF
REGULATING THEIR INTERNAL AND SOCIAL RELATIONS ...,"  UNITED STATES V.
KAGAMA, 118 U.S. 375, 381 - 382 (1886); MCCLANAHAN V. ARIZONA STATE TAX
COMM'N, 411 U.S. 164, 173 (1973). 

CASES SUCH AS WORCESTER, SUPRA, AND KAGAMA, SUPRA, SURELY ESTABLISH
THE PROPOSITION THAT INDIAN TRIBES WITHIN "INDIAN COUNTRY" ARE A GOOD
DEAL MORE THAN "PRIVATE, VOLUNTARY ORGANIZATIONS," AND THEY THUS
UNDERMINE THE RATIONALE OF THE COURT OF APPEALS' DECISION.  THESE SAME
CASES, IN ADDITION, MAKE CLEAR THAT WHEN CONGRESS DELEGATED ITS
AUTHORITY TO CONTROL THE INTRODUCTION OF ALCOHOLIC BEVERAGES INTO
INDIAN COUNTRY, IT DID SO TO ENTITIES WHICH POSSESS A CERTAIN DEGREE OF
INDEPENDENT AUTHORITY OVER MATTERS THAT AFFECT THE INTERNAL AND SOCIAL
RELATIONS OF TRIBAL LIFE.  CLEARLY THE DISTRIBUTION AND USE OF
INTOXICANTS IS JUST SUCH A MATTER.  WE NEED NOT DECIDE WHETHER THIS
INDEPENDENT AUTHORITY IS ITSELF SUFFICIENT FOR THE TRIBES TO IMPOSE
ORDINANCE NO. 26.  IT IS NECESSARY ONLY TO STATE THAT THE INDEPENDENT
TRIBAL AUTHORITY IS QUITE SUFFICIENT TO PROTECT CONGRESS' DECISION TO
VEST IN TRIBAL COUNSILS THIS PORTION OF ITS OWN AUTHORITY "TO REGULATE
COMMERCE ... WITH THE INDIAN TRIBES."  CF. UNITED STATES V. CURTISS
WRIGHT EXPORT CORP., SUPRA. 

THE FACT THAT THE MAZURIES COULD NOT BECOME MEMBERS OF THE TRIBE,
AND THEREFORE COULD NOT PARTICIPATE IN THE TRIBAL GOVERNMENT, DOES NOT
ALTER OUR CONCLUSION.  THIS CLAIM, THAT BECAUSE RESPONDENTS ARE NON
INDIANS CONGRESS COULD NOT SUBJECT THEM TO THE AUTHORITY OF THE TRIBAL
COUNCIL WITH RESPECT TO THE SALE OF LIQUOR, /12/  IS ANSWERED BY THIS
COURT'S OPINION IN WILLIAMS V. LEE, 358 U.S. 217 (1959).  IN HOLDING
THAT THE AUTHORITY OF TRIBAL COURTS COULD EXTEND OVER NON-INDIANS,
INSOFAR AS CONCERNED THEIR TRANSACTIONS ON A RESERVATION WITH INDIANS,
WE STATED: 

"IT IS IMMATERIAL THAT RESPONDENT IS NOT AN INDIAN.  HE WAS ON THE
RESERVATION AND THE TRANSACTION WITH AN INDIAN TOOK PLACE THERE.  THE
CASES IN THIS COURT HAVE CONSISTENTLY GUARDED THE AUTHORITY OF INDIAN
GOVERNMENTS OVER THEIR RESERVATIONS.  CONGRESS RECOGNIZED THIS
AUTHORITY IN THE NAVAJOS IN THE TREATY OF 1868, AND HAS DONE SO EVER
SINCE.  IF THIS POWER IS TO BE TAKEN AWAY FROM THEM, IT IS FOR CONGRESS
TO DO IT.  LONE WOLF V. HITCHCOCK, 187 U.S. 553, 564 - 566."  ID., AT
223 (CITATIONS OMITTED). 

FOR THE FOREGOING REASONS THE JUDGMENT OF THE COURT OF APPEALS MUST
BE REVERSED, AND THE CONVICTIONS OF RESPONDENTS REINSTATED. 

              REVERSED. 

/1/  TITLE 18 U.S.C. 1154 PROVIDES IN PERTINENT PART: 

"(A) (WHOEVER INTRODUCES OR ATTEMPTS TO INTRODUCE ANY MALT,
SPIRITUOUS, OR VINOUS LIQUOR, INCLUDING BEER, ALE, AND WINE, OR ANY
ARDENT OR INTOXICATING LIQUOR OF ANY KIND WHATSOEVER INTO THE INDIAN
COUNTRY, SHALL, FOR THE FIRST OFFENSE, BE FINED NOT MORE THAN $500 OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH; AND, FOR EACH SUBSEQUENT
OFFENSE, BE FINED NOT MORE THAN $2,000 OR IMPRISONED NOT MORE THAN FIVE
YEARS, OR BOTH. 

        .         .         .         .         . 

"(C) THE TERM 'INDIAN COUNTRY' AS USED IN THIS SECTION DOES NOT
INCLUDE FEE-PATENTED LANDS IN NON-INDIAN COMMUNITIES OR RIGHTS-OF-WAY
THROUGH INDIAN RESERVATIONS, AND THIS SECTION DOES NOT APPLY TO SUCH
LANDS OR RIGHTS-OF-WAY IN THE ABSENCE OF A TREATY OR STATUTE EXTENDING
THE INDIAN LIQUOR LAWS THERETO." 

/2/  F. HARMSTON, WIND RIVER BASIN 2 (1953); H. GRANGER ET AL.,
MINERAL RESOURCES OF THE GLACIER PRIMITIVE AREA, WYOMING, GEOLOGICAL
SURVEY BULL.  NO. 1319-F, PP. F2-F5 (1971). 

/3/  TITLE 18 U.S.C. 1151 PROVIDES IN PERTINENT PART: 

"EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 1154 AND 1156 OF THIS
TITLE, THE TERM 'INDIAN COUNTRY,' AS USED IN THIS CHAPTER, MEANS (A)
ALL LAND WITHIN THE LIMITS OF ANY INDIAN RESERVATION UNDER THE
JURISDICTION OF THE UNITED STATES GOVERNMENT, NOTWITHSTANDING THE
ISSUANCE OF ANY PATENT, AND, INCLUDING RIGHTS-OF-WAY RUNNING THROUGH
THE RESERVATION...." 

/4/  TITLE 18 U.S.C. 1161 PROVIDES: 

"THE PROVISIONS OF SECTIONS 1154, 1156, 3113, 3488, AND 3618, OF
THIS TITLE, SHALL NOT APPLY WITHIN ANY AREA THAT IS NOT INDIAN COUNTRY,
NOR TO ANY ACT OR TRANSACTION WITHIN ANY AREA OF INDIAN COUNTRY
PROVIDED SUCH ACT OR TRANSACTION IS IN CONFORMITY BOTH WITH THE LAWS OF
THE STATE IN WHICH SUCH ACT OR TRANSACTION OCCURS AND WITH AN ORDINANCE
DULY ADOPTED BY THE TRIBE HAVING JURISDICTION OVER SUCH AREA OF INDIAN
COUNTRY, CERTIFIED BY THE SECRETARY OF THE INTERIOR, AND PUBLISHED IN
THE FEDERAL REGISTER." 

/5/  THE ORDINANCE WAS PROPERLY APPROVED BY THE SECRETARY OF THE
INTERIOR AND PUBLISHED IN THE FEDERAL REGISTER.  37 FED. REG. 1253 -
1254 (1972). 

/6/  THE BLUE BULL WAS REOPENED AFTER THE DECISION OF THE COURT OF
APPEALS.  IN APRIL 1974, HOWEVER, FREMONT COUNTY REFUSED TO RENEW ITS
LICENSE AND IT WAS AGAIN CLOSED.  BRIEF FOR UNITED STATES 5 N. 4; BRIEF
FOR RESPONDENTS 20 N. 8. 

/7/  IT WAS STIPULATED THAT THE BLUE BULL WAS BEING OPERATED WITHOUT
THE LICENSE REQUIRED BY ORDINANCE NO. 26, THAT ALCOHOLIC BEVERAGES HAD
BEEN SOLD AT THE BLUE BULL, THAT THE BLUE BULL WAS LOCATED WITHIN THE
WIND RIVER RESERVATION, BUT ON LAND WHICH IT OWNED IN FEE, AND THAT THE
BLUE BULL HAD BEEN PROPERLY LICENSED BY STATE AUTHORITIES. 

/8/  THE DISTRICT COURT DID NOT MAKE A SPECIFIC FINDING OF FACT THAT
THE BLUE BULL WAS NOT LOCATED IN A NON-INDIAN COMMUNITY.  THE COURT DID
FIND THAT IT WAS IN "INDIAN COUNTRY," THAT IT WAS SITUATED "AT A SITE
KNOWN AS FORT WASHAKIE, WYOMING," THAT "FORT WASHAKIE IS NOT AN
INCORPORATED NON-INDIAN COMMUNITY WITH RECOGNIZED BOUNDARIES," AND THAT
THE BAR HAD BEEN OPERATED IN VIOLATION OF 18 U.S.C. 1154 (WHICH
CONTAINS THE EXCLUSION FROM "INDIAN COUNTRY"  OF FEE-PATENTED LANDS IN
NON-INDIAN COMMUNITIES).  THE AMBIGUITY IN THE TRIAL COURT'S FINDINGS
IS READILY EXPLAINED BY RESPONDENTS'  FAILURE TO FOCUS ON THE ISSUE AT
TRIAL.  THE NATURE OF DEFENSE TESTIMONY AND CROSS-EXAMINATION IS
DISCUSSED INFRA, AT 552.  THAT RESPONDENTS FAILED TO CONTEST THE ISSUE
IS FURTHER ESTABLISHED BY THE MOTION TO DISMISS AT THE CLOSE OF THE
GOVERNMENT'S EVIDENCE.  THE BASIS OF THE MOTION WAS FAILURE "TO PROVE
BEYOND A DOUBT THAT (RESPONDENTS) ARE OPERATING IN AN INDIAN
COMMUNITY," APP. 64 (EMPHASIS ADDED), WHICH EVEN IF TRUE IS PLAINLY
IRRELEVANT UNDER THE WORDING OF 1154 (C).  RESPONDENTS' COUNSEL THEN
PROCEEDED WITH AN ARGUMENT BASED ON RESPONDENTS' UNRESTRICTED FEE
OWNERSHIP OF THE PROPERTY ON WHICH THE BAR WAS LOCATED.  IBID.  IN
ADDITION, RESPONDENTS' COUNSEL DID NOT DISPUTE THE COURT'S STATEMENT AT
THE CLOSE OF THE TRIAL THAT THE "SOLE ISSUE" WAS "WHETHER OR NOT THE
TRIBAL COUNCIL HAS JURISDICTION OVER DEEDED LAND HELD BY THESE PARTIES
IN FEE...."  2 RECORD ON APPEAL 140.  THE COURT WENT ON TO STATE:  "(IT
IS IN INDIAN COUNTRY.  THERE IS NOT ANY QUESTION.  YOU DO NOT NEED TO
CITE A SINGLE CASE THAT THIS BAR AND THIS TEN ACRES IS (SIC) LOCATED IN
INDIAN COUNTRY.  I AM NOT SAYING IT IS INDIAN LAND, BUT IT IS INDIAN
COUNTRY."  IBID.  AGAIN, RESPONDENTS' COUNSEL MADE NO OBJECTION.  HE
ALSO APPARENTLY DID NOT SEEK TO FOCUS THE COURT'S ATTENTION ON THE
ISSUE BY FILING EITHER A POST-TRIAL BRIEF OR PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW--WHILE BOTH PARTIES HAD THE OPPORTUNITY TO MAKE
SUCH SUBMISSIONS, ONLY THE PROSECUTION'S APPEARS IN THE RECORD ON
APPEAL. 

/9/  WE ASSUME, ARGUENDO, AS HAS THE GOVERNMENT IN ITS ARGUMENTS
BEFORE THIS COURT, THAT THE PROSECUTION HAS THE BURDEN OF PROVING THAT
THE 1154 (C) STATUTORY EXCEPTIONS ARE NOT APPLICABLE.  BECAUSE OF THIS
ASSUMPTION, AND BECAUSE WE CONCLUDE THAT THE GOVERNMENT IN ANY EVENT
DID CARRY THIS BURDEN, WE NEED NOT CONSIDER WHETHER THE EXCEPTION MUST
BE PLEADED AND PROVED BY CRIMINAL DEFENDANTS.  CF. UNITED STATES V.
VUITCH, 402 U.S. 62, 70 (1971) (DEALING WITH A CRIMINAL STATUTE IN
WHICH "AN EXCEPTION IS INCORPORATED IN THE ENACTING CLAUSE OF A
STATUTE"). 

/10/  WE NOTE THAT THE 1154 (C) EXCEPTION IS AVAILABLE FOR FEE
PATENTED LANDS WHICH ARE IN NON-INDIAN COMMUNITIES, RATHER THAN FOR
THOSE WHICH ARE NOT IN INDIAN COMMUNITIES.  THIS FACT RENDERS
IRRELEVANT THE INABILITY OF PROSECUTION WITNESSES TO SPECIFY PRECISE
BOUNDARIES OF THE FORT WASHAKIE INDIAN COMMUNITY. 

WE NEED NOT DETAIN OURSELVES WITH AN ISSUE WHICH SEEMED TO CAUSE THE
COURT OF APPEALS SOME DIFFICULTIES, THAT OF WHAT QUALIFIES A PERSON AS
AN "INDIAN."  THE RECORD PLAINLY ESTABLISHES THAT, IN THE CIRCUMSTANCES
OF THIS CASE, THE DISTINCTION BETWEEN INDIANS AND NON-INDIANS WAS
GENERALLY UNDERSTOOD.  THOSE WHO TESTIFIED ABOUT THE HOUSING AND SCHOOL
SURVEYS DISPLAYED NO DIFFICULTY IN MAKING SUCH CLASSIFICATIONS.  NOR
DID MR. MAZURIE.  HE TESTIFIED THAT WHEN THERE WAS TROUBLE AT HIS BAR
HE WOULD CALL THE COUNTY SHERIFF TO DEAL WITH AN INDIAN.  WHEN HIS
COUNSEL QUESTIONED HIM AS TO HOW HE DETERMINED WHICH WAS WHICH, HE
SIMPLY REPLIED: "BECAUSE I KNEW THEM."  APP. 70. 

/11/  IT IS UNDISPUTED THAT THE WIND RIVER TRIBES HAVE NOT BEEN
EMANCIPATED FROM FEDERAL GUARDIANSHIP AND CONTROL.  THERE IS THUS NO
DOUBT THAT THIS CASE IS PROPERLY ANALYZED IN TERMS OF CONGRESS'
EXCLUSIVE CONSTITUTIONAL AUTHORITY TO DEAL WITH INDIAN TRIBES. 

/12/  RESPONDENTS ATTEMPT TO BOLSTER THIS CLAIM WITH THE ARGUMENT
THAT "THE BASIC RIGHTS AND PRINCIPLES OF EQUAL PROTECTION AND DUE
PROCESS (ARE) CURRENTLY NOT AVAILABLE TO NON-INDIANS WITHIN THE TRIBAL
COUNSILS."  BRIEF FOR RESPONDENTS 24.  HOWEVER, RESPONDENTS MAKE NO
CLAIM THAT THE TRIBAL DECISION TO DENY THEM A LICENSE CONSTITUTED A
DENIAL OF EQUAL PROTECTION OR THAT IT RESULTED FROM A HEARING WHICH
LACKED DUE PROCESS.  WHETHER AND TO WHAT EXTENT THE FIFTH AMENDMENT
WOULD BE AVAILABLE TO CORRECT ARBITRARY OR DISCRIMINATORY TRIBAL
EXERCISE OF ITS DELEGATED FEDERAL AUTHORITY MUST THEREFORE AWAIT
DECISION IN A CASE IN WHICH THE ISSUE IS SQUARELY PRESENTED AND
APPROPRIATELY BRIEFED.  THIS OBSERVATION IS ALSO APPLICABLE WITH REGARD
TO 202 OF PUB. L. 90 - 284, 82 STAT. 77, 25 U.S.C. 1302, WHICH
PROVIDES: "NO INDIAN TRIBE IN EXERCISING POWERS OF SELF-GOVERNMENT
SHALL...(8) DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL
PROTECTION OF ITS LAWS OR DEPRIVE ANY PERSON OF LIBERTY OR PROPERTY
WITHOUT DUE PROCESS OF LAW."  QUITE APART FROM THESE POTENTIAL SOURCES
OF PROTECTION AGAINST ARBITRARY TRIBAL ACTION, SUCH PROTECTION IS TO
SOME EXTENT ASSURED BY 1161'S REQUIREMENT THAT DELEGATED AUTHORITY BE
EXERCISED PURSUANT TO A TRIBAL ORDINANCE WHICH ITSELF HAS BEEN APPROVED
BY THE SECRETARY OF THE INTERIOR. 

HARRY R. SACHSE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
JOHNSON, JACQUES B. GELIN, AND LAWRENCE E. SHEARER. 

CHARLES E. HAMILTON ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 

JEROME F. STATKUS, ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE FOR
THE STATE OF WYOMING AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON
THE BRIEF WAS STERLING A. CASE, DEPUTY ATTORNEY GENERAL.     MARVIN J.
SONOSKY AND GLEN A. WILKINSON FILED A BRIEF FOR THE SHOSHONE AND
ARAPAHOE TRIBES OF THE WIND RIVER INDIAN RESERVATION AS AMICI CURIAE
URGING REVERSAL. 
..END :



















MANESS V. MEYERS, 419 U.S. 449 


       MANESS V. MEYERS, JUDGE

        CERTIORARI TO THE 169TH JUDICIAL DISTRICT COURT OF TEXAS,

           BELL COUNTY

        NO. 73 - 689.  ARGUED OCTOBER 22, 1974--DECIDED JANUARY 15,

           1975; (REVERSED.) 


    A LAWYER IS NOT SUBJECT TO THE PENALTY OF CONTEMPT FOR ADVISING

  HIS CLIENT, DURING THE TRIAL OF A CIVIL CASE, TO REFUSE ON FIFTH

  AMENDMENT GROUNDS TO PRODUCE MATERIAL DEMANDED BY A SUBPOENA

  DUCES TECUM WHEN THE LAWYER BELIEVES IN GOOD FAITH THAT THE

  MATERIAL MAY TEND TO INCRIMINATE HIS CLIENT.  TO HOLD OTHERWISE

  WOULD DENY THE CONSTITUTIONAL PRIVILEGE AGAINST

  SELF-INCRIMINATION THE MEANS OF ITS OWN IMPLEMENTATION, SINCE

  WHEN A WITNESS IS SO ADVISED THE ADVICE BECOMES AN INTEGRAL PART

  OF THE PROTECTION ACCORDED THE WITNESS BY THE FIFTH AMENDMENT. 

  PP. 458 - 470. 

     (A) THAT THE CLIENT IN ANY ENSUING CRIMINAL ACTION COULD MOVE

  TO SUPRESS THE SUBPOENAED MATERIAL AFTER IT HAD BEEN PRODUCED

  DOES NOT AFFORD ADEQUATE PROTECTION, BECAUSE WITHOUT SOMETHING

  MORE "HE WOULD BE COMPELLED TO SURRENDER THE VERY PROTECTION

  WHICH THE PRIVILEGE IS DESIGNED TO GUARANTEE," HOFFMAN V. UNITED

  STATES, 341 U.S. 479, 486.  UNITED SATES V. BLUE, 384 U.S. 251,

  DISTINGUISHED.  PP. 461 - 463. 

     (B) HERE WHERE PETITIONER LAWYER ADMITTED THAT THE ALLEGEDLY

  OBSCENE MAGAZINES SUBPOENAED FOR THE PURPOSE OF ENJOINING THEIR

  DISTRIBUTION WERE "OF THE SAME CHARACTER" AS MAGAZINES FOR

  DISTRIBUTION OF WHICH HIS CLIENT HAD RECENTLY BEEN CONVICTED (SO

THAT PETITIONER HAD, AT THE VERY LEAST, A REASONABLE BASIS FOR

  ASSUMING THAT A RISK OF FURTHER CRIMINAL PROSECUTION EXISTED),

  AND WHERE THERE WAS NO ASSURANCE UNDER STATE LAW THAT THE

  MATERIAL COULD BE SUPPRESSED AND NO AVENUE OTHER THAN ASSERTION

  OF THE PRIVILEGE, WITH THE RISK OF CONTEMPT, THAT WOULD HAVE

  ASSURED APPELLATE REVIEW IN ADVANCE OF SURRENDERING THE

  MAGAZINES, THE ADVICE WAS GIVEN IN GOOD FAITH.  PP. 468 - 470. 

     BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, MARSHALL, POWELL, AND REHNQUIST, JJ., JOINED. 

  STEWART, J., FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH

BLACKMUN, J., JOINED, POST, P. 470.  WHITE J., FILED AN OPINION

  CONCURRING IN THE RESULT, OPOST, P. 472. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO DECIDE WHETHER IN A STATE CIVIL PROCEEDING
A LAWYER MAY BE CITED FOR CONTEMPT FOR ADVISING HIS CLIENT, A PARTY TO
THE LITIGATION, THAT THE CLIENT MAY REFUSE ON FIFTH AMENDMENT GROUNDS
TO PRODUCE SUBPOENAED MATERIAL. 

      I 

PETITIONER IS A LAWYER.  IN JANUARY 1973 HIS CLIENT WAS CONVICTED
BEFORE A MUNICIPAL COURT IN THE CITY OF TEMPLE, TEXAS, OF SELLING SEVEN
OBSCENE MAGAZINES IN VIOLATION OF A TEMPLE ORDINANCE.  SIX DAYS LATER
THE CLIENT MICHAEL MCKELVA, WAS SERVED BY A BELL COUNTY DEPUTY SHERIFF
WITH A SUBPOENA DUCES TECUM DIRECTING HIM TO PRODUCE 52 MAGAZINES
BEFORE THE 169TH JUDICIAL DISTRICT COURT.  THE TITLES OF THE MAGAZINES
WERE GIVEN, BUT NO OTHER DESCRIPTION WAS CONTAINED IN THE WARRANT. 

UNDER THE TEXAS PENAL CODE /1/  UPON APPLICATION BY ANY CITY ATTORNEY
THE DISTRICT COURTS MAY ISSUE INJUNCTIONS TO PREVENT ILLEGAL
DISTRIBUTION OF OBSCENE MATTER.  THE SUBPOENA HERE WAS REQUESTED BY THE
TEMPLE CITY ATTORNEY IN ORDER TO OBTAIN SUCH AN INJUNCTION.  BESIDES
COMMANDING PRODUCTION OF THE MAGAZINES IT ORDERED PETITIONER'S CLIENT
TO APPEAR AT A HEARING ON FEBRUARY 1, 1973, AND GIVE TESTIMONY. 

MCKELVA APPEARED REPRESENTED BY PETITIONER AND AN ASSOCIATE, KARL A.
MALEY.  EARLIER, MALEY HAD FILED A WRITTEN MOTION TO QUASH THE
SUBPOENA.  THE MOTION CLAIMED, INTER ALIA, THAT THE ISSUEANCE OF THE
SUBPOENA WAS MERELY AN ATTEMPT TO REQUIRE MATERIALS AND TESTIMONY IN
VIOLATION OF MCKELVA'S CONSTITUTIONAL RIGHT NOT TO INCRIMINATE
HIMSELF. 

THE THE HEARING PETITIONER ORALLY ARGUED THE MOTION TO QUASH.  HE,
TOO, CONTENDED THAT THE CITY WAS ATTMEPTING, THROUGH A CIVIL
PROCEEDING, TO DISCOVER EVIDENCE WHICH PROPERLY SHOULD BE DISCOVERED,
IF AT ALL, THROUGH CRIMINAL PROCESS.  HE FREELY ADMITTED THAT THE
MAGAZINES DEALT EXPLICITLY WITH ACTS OF A SEXUAL NATURE, AND THAT THEY
WERE "OF THE SAME CHARACTER" AS THE MAGAZINES FOR DISTRIBUTION OF WHICH
MCKELVA PREVIOUSLY HAD BEEN CONVICTED.  /2/  THUS, HE ARGUED, IT WAS
QUITE CLEAR THAT A "SUBSTANTIAL POSSIBILITY OF SELF-INCRIMINATION"
EXISTED IF MCKELVA WAS REQUIRED TO PRODUCE THE MAGAZINES.  PETITIONER
FORESAW POSSIBLE CRIMINAL PROSECUTION EITHER UNDER THE TEMPLE ORDINANCE
/3/  AGAIN, OR UNDER ART. 527 ITSELF. 

ALTHOUGH PETITIONER CLAIMED THE FIFTH AMENDMENT'S PEOTECTION WAS
AVAILABLE IN ANY PROCEEDING WHETHER CIVIL OR CRIMINAL, HE ALSO URGED
THAT UNDER THE CIRCUMSTANCES THE INJUNCTIVE PROCEEDING FOR WHICH THE
MAGAZINES WERE SUBPOENAED WAS QUASI-CRIMINAL IN NATURE.  HE NOTED THAT
IT WAS BROUGHT UNDER THE PENAL CODE OF TEXAS AND CONCLUDED THAT THE
CITY SHOULD SECURE A SEARCH WARRANT, DESCRIBING WITH PARTICULARITY THE
MAGAZINES IT DESIRED PRODUCED. 

THE CITY ATTORNEY RESPONDED THAT THE PROCEEDING WAS PURELY CIVIL AND
THAT "THERE IS NO CONTENTION ON THE PART OF THE CITY OR ANY ATTEMPT ON
THE PART OF THE CITY TO GET ANY EVIDENCE FOR ANY CRIMINAL PROSECUTION,"
AND THUS ANY MATERIAL PRODUCED WOULD NOT BE INCRIMINATING.  FURTHER, HE
MAINTAINED, BECAUSE THERE "ARE NO CRIMINAL SANCTIONS ... THERE WILL BE
NO EVIDENCE THAT WOULD BE INCRIMINATING UNDER THE RULES ...." 

IN REPLY PETITIONER DREW AN ANALOGY TO TAX CASES WHERE, HE ARGUED,
COURTS HAVE PROHIBITED THE INTERNAL REVENUE SERVICE FROM USING
SUBPOENAS TO DISCOVER RECORDS WHICH MIGHT TEND TO INCRIMINATE
TAXPAYERS.  PETITIONER CONTENDED THAT THE NATURE OF THE PROCEEDING IN
WHICH EVIDENCE IS SOUGHT IS IRRELEVANT TO THE COMPASS OF THE FIFTH
AMENDMENT, AND THAT THE CHARACTER OF THE MATERIAL REQUESTED IS THE ONLY
RELEVANT INQUIRY.  HE ASSERTED THAT THE SOLE TEST IS WHETHER PRODUCTION
OF THE MATERIAL WOULD CREATE A SUBSTANTIAL PROBABILITY OF CRIMINAL
PROSECUTION FOR HIS CLIENT.  HE NOTED THAT THE CITY ATTORNEY'S
REPRESENTATION THAT THE CITY IS NOT INTERESTED IN A CRIMINAL
PROSECUTION "CERTAINLY DOES NOT BIND FOR EXAMPLE THE COUNTY ATTORNEY,
OR ANYONE ELSE . . . WHO MIGHT BE INTERESTED IN PROSECUTING SUCH A
CASE." 

THE COURT THEN DENIED THE MOTION TO QUASH AND PETITIONER'S CLIENT,
MCKELVA, TOOK THE STAND.  IN ANSWER TO PRELIMINARY QUESTIONS HE GAVE
HIS NAME AND ADDRESS AND STATED THAT HE WAS THE OPERATOR OF MIKE'S NEWS
IN TEMPLE.  HE ADMITTED TO HAVING BEEN SERVED WITH THE SUBPOENA, BUT
WHEN HE WAS ASKED WHETHER HE HAD BROUGHT THE MAGAZINES HE REPLIED:
"(UNDER THE ADVICE OF COUNSEL, I REFUSE TO ANSWER ON THE GROUNDS THAT
IT MAY TEND TO INCRIMINATE ME."  THE CITY ATTORNEY THEN MOVED THE COURT
TO INSTRUCT THE WITNESS TO ANSWER, AND IF HE FAILED TO DO SO TO HOLD
HIM IN CONTEMPT.  THE COURT ASKED PETITIONER'S COCOUNSEL WHAT WOULD BE
A REASONABLE TIME TO ALLOW FOR THE WITNESS TO BRING THE MAGAZINES INTO
COURT, BECAUSE THE COURT UNDERSTOOD THE APPLICABLE RULE TO REQUIRE TIME
FOR COMPLIANCE BEFORE A MOTION FOR CONTEMPT SHOULD BE ENTERTAINED. 
COUNSEL REPLIED THAT ACCORDING TO THEIR POSITION NO TIME NEED BE
ALLOWED BECAUSE, IN ANY EVENT, THE SUBPOENA WOULD REQUIRE PRODUCTION OF
EVIDENCE WHICH WOULD TEND TO INCRIMINATE THE WITNESS.  THE COURT THEN
RECESSED UNTIL THE AFTERNOON AND INSTRUCTED THE WITNESS TO RETURN AT
THAT TIME WITH THE REQUESTED MAGAZINES.  PETITIONER'S COCOUNSEL SAID HE
UNDERSTOOD THE INSTRUCTION.  HC #453 

WHEN THE COURT RECONVENED, MCKELVA WAS RECALLED, AND HE RESPONDED
NEGATIVELY WHEN THE CITY ATTORNEY ASKED WHETHER HE HAD MADE ANY EFFORT
TO OBTAIN THE SUBPOENAED MAGAZINES.  HE DID, HOWEVER, ACKNOWLEDGE THAT
HE HAD UNDERSTOOD THE COURT'S ORDER TO BRIND THEM, AFTER HE INDICATED
THAT THE SOLE REASON FOR HIS FAILURE TO COMPLY WAS HIS BELIEF THAT IF
HE DID SO IT WOULD ENTAIL A SUBSTANTIAL POSSIBILITY OF SELF
INCRIMINATION, THE CITY ATTORNEY AGAIN MOVED FOR A CONTEMPT CITATION. 
THIS TIME THE COURT FOUND MCKELVA IN CONTEMPT AND STATED THAT THE
FAILURE TO RESPOND WOULD BE TREATED AS AN ADMISSION THAT THE SUBPOENAED
MAGAZINES ARE OBSCENE.  PETITIONER OBJECTED, ARGUING THAT A PERSON MAY
NOT BE PENALIZED FOR ASSERTING A CONSTITUTIONAL RIGHT BY WAY OF MAKING
AN ADVERSE FINDING AGAINST HIM.  THE JUDGE REPLIED THAT NO FINDING HAD
BEEN MADE, BUT IN VIEW OF PETITIONER'S ADMISSION THAT THE MAGAZINES
WERE OF THE SAME NATURE AS THOSE FOR WHICH HIS CLIENT PREVIOUSLY HAD
BEEN CONVICTED, THERE WAS JUSTIFICATION FOR TREATING A REFUSAL TO
PRODUCE THEM AS AN ADMISSION TO BE CONSIDERED WITH OTHER EVIDENCE.  /4/
PETITIONER RESPONDED THAT HE WAS OBLIGED TO ASSERT THAT ALTHOUGH THE
OTHER MAGAZINES HAD BEEN HELD OBSCENE THE SUBPOENAED MAGAZINES WERE
NOT. 

AFTER OTHER TESTIMONY WAS HEARD, MCKELVA WAS AGAIN RECALLED AND THE
COURT ASKED HIM IF HIS DISOBEDIENCE WAS HIS OWN DECISION, OR IF IT WAS
ON THE ADVICE OF COUNSEL.  MCKELVA REPLIED THAT IT WAS ON THE ADVICE OF
COUNSEL, SPECIFICALLY PETITIONER AND MALEY.  PETITIONER THEN ASKED HIS
CLIENT WHETHER HE WOULD PRODUCE THE MAGAZINES IF COUNSEL ADVISED HIM
THEY WERE NOT INCRIMINATORY.  MCKELVA REPLIED THAT HE WOULD.  THIS MADE
IT CLEAR THAT BUT FOR THE ADVICE OF COUNSEL MCKELVA WOULD HAVE
PRODUCED 

AFTER A SHORT RECESS THE COURT RULED THE SUBPOENAED MAGAZINES
OBSCENE, AND ENJOINED THEIR CONTINUED EXHIBITION AND SALE.  FINALLY,
THE COURT HELD PETITIONER AND HIS COCOUNSEL IN CONTEMPT, AS WELL AS
THEIR CLIENT, /5/  AND FIXED PUNISHMENT FOR EACH OF THEM AT 10 DAYS'
CONFINEMENT AND A $200 FINE. 

THE JUDGE NOTED HIS RELUCTANCE TO FIND THE ATTORNEYS IN CONTEMPT,
STATING THIS WAS THE FIRST TIME HE HAD EVER DONE SO, BUT HE FELT THAT
THE ATTORNEYS HAD USURPED THE AUTHORITY OF THE COURT: "THIS COURT HAS
NOT BEEN PERMITTED TO RULE ON THE ADMISSIBILITY OF THAT EVIDENCE.  YOU
HAVE RULED ON IT . . . ."  BEFORE THE HEARING ENDED, HOWEVER,
PETITIONER STATED THAT HE AND HIS COCOUNSEL HAD NOT DELIBERATELY AND
INTENTIONALLY ATTEMPTED TO FRUSTRATE THE COURT.  PETITIONER FELT THERE
WAS MERELY A PHILOSOPHICAL DIFFERENCE BETWEEN COUNSEL AND THE COURT AS
TO THE SCOPE OF THE FIFTH AMENDMENT PORTECTION.  THE COURT RESPONDED
THAT THE SELF-INCRIMINATION DEFENSE COULD HAVE BEEN REACHED EITHER BY A
MOTION TO SUPPRESS THE EVIDENCE AFTER IT HAD BEEN PRODUCED FOR
INJUNCTIVE PURPOSES, OR BY AN OBJECTION TO AN ATTEMPT TO INTRODUCE IT
AT A CRIMINAL TRIAL 

THE RECORD SHOWS NO INDICATION WHATSOEVER OF CONTUMACIOUS CONDUCT ON
THE PART OF PETITIONER OR HIS COCOUNSEL.  THE COURT APPEARS TO HAVE
BEEN OFFENDED, IN A STRICTLY LEGAL SENSE, ONLY BY THE LAWYERS' ADVICE
WHICH CAUSED THEIR CLIENT TO DECLINE ON FIFTH AMENDMENT GROUNDS TO
PRODUCE SUBPOENAED MATERIAL.  THERE IS NOTHING IN THE RECORD TO SUGGEST
THAT PETITIONER OR HIS COCOUNSEL ACTED OTHERWISE THAN IN THE GOOD-FAITH
BELIEF THAT IF THEIR CLIENT PRODUCED THE MATERIALS HE WOULD RUN A
SUBSTANTIAL RISK OF SELF-INCRIMINATION. 

THE DAY THE CONTEMPT CITATION WAS ISSUED PETITIONER, ON BEHALF OF
MCKELVA, APPLIED TO THE SUPREME COURT OF TEXAS FOR AN ORIGINAL WRIT OF
HABEAS CORPUS.  THE SAME DAY THAT COOURT DENIED THE APPLICATION PENDING
FURTHER INFORMATION TO COMPLETE THE RECORD, AND THEN FINALLY DENIED THE
WRIT ON FEBRUARY 5, 1973. 

ON FEBRUARY 8, 1973, PETITIONER FILED AN APPLICATION ON BEHALF OF
MCKELVA FOR A WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS, WACO DIVISION.  HOWEVER, AT 10 A.M.
THAT DAY THE JUDGE WHO ISSUED THE CONTEMPT CITATION ORDERED MCKELVA
RELEASED FROM CUSTODY ALTHOUGH HE HAD ONLY SERVED SEVEN OF HIS 10
DAYS.  THE RELEASE WAS "FOR GOOD BEHAVIOR." 

PURSUANT TO TEXAS PROCEDURE /6/  THE CITATION OF THE ATTORNEYS WAS
REVIEWED BY ANOTHER STATE DISTRICT JUDGE, THE RESPONDENT HERE, JUDGE
JAMES R. MEYERS.  A HEARING WAS HELD ON MAY 11, 1973, WITH THE TEXAS
ATTORNEY GENERAL'S OFFICE APPEARING IN SUPPORT OF THE CONTEMPT
CITATION.  THE PARTIES AGREED THAT THE BURDEN OF PROOF WAS ON THE
ATTORNEY GENERAL, AND ALSO AGREED THAT THE RECORD OF THE INJUNCTION
HEARING WOULD PROVIDE THE BASIS FOR THE COURT'S DECISION. 

THE COURT NOTED THAT IT FELT THAT THE RECORD SUPPORTED A FINDING
BEYOND A REASONABLE DOUBT, THAT THE CLIENT WAS ADVISED NOT TO BRING THE
MATERIALS, AND THE COURT WAS DUBIOUS THAT MATERIALS DISPLAYED FOR
PUBLIC SALE ARE PROTECTED BY THE FIFTH AMENDMENT.  HOWEVER, THE COURT
ALSO STATED, " I THINK IT IS A VERY CLOSE POINT."  COUNSEL FOR
PETITIONER AGREED THAT THE RECORD CLEARLY REFLECTED THAT PETITIONER HAD
ADVISED HIS CLIENT THAT HE HAD A FIFTH AMENDMENT PRIVILEGE ON THE
ISSUE, BUT CLAIMED THAT IT DID NOT REFLECT THAT PETITIONER HAD
INSTRUCTED HIM NOT TO BRING THE SUBPOENAED MATERIALS. 

ON OCTOBER 1, 1973, JUDGE MEYERS AFFIRMED THE FINDING OF CONTMEPT
BUT CHANGED THE PENALTY TO A $500 FINE WITH NO CONFINEMENT.  IT IS THAT
JUDGMENT  WHICH IS UNDER REVIEW HERE. 

BOTH TEXAS  APPELLATE COURTS REFUSED TO REVIEW THE JUDGMENT.  THE
TEXAS COURT OF CRIMINAL APPEALS DENIED PETITIONER'S MOTION FOR LEAVE TO
FILE AN ORIGINAL APPLICATION FOR A WRIT OF HABEAS CORPUS, AND THE
SUPREME COURT OF TEXAS ALSO DENIED A PETITION FOR A WRIT OF HEABEAS
CORPUS.  BOTH COURTS' ORDERS WERE ENTERED OCTOBER 11.  BY ORDER OF
JUDGE MEYERS, PERSONAL RECOGNIZANCE BONDS OF PETITIONER AND MALEY WERE
OCNTINUED IN ORDER THAT MALEY COULD SEEK A WRIT OF HABEAS CORPUS FROM
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AND
PETITIONER COULD PETITION FOR A WRIT OF CERTIORARI FROM THIS COURT. 

ON DECEMBER 20, 1973, JUDGE JACK ROBERTS OF THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, WACO DIVISION,
GRANTED MALEY'S PETITION FOR A WRIT OF HABEAS CORPUS.  HE NOTED THAT
EVEN INCORRECT ORDERS FROM COURTS ORDINARILY MUST BE OBEYED UNTIL SET
ASIDE, BUT HE CONCLUDED THAT MCKELVA HAD ASSERTED VALID FIFTH AMENDMENT
PRIVILEGE, AND THEREFORE NEITHER HE NOR HIS LAWYER COULD BE HELD IN
CONTEMPT FOR ASSERTING THAT PRIVILEGE.  SINCE CIVIL AND CRIMINAL
LIABILITY UNDER ART. 527 ARISE FROM THE SAME ACT THE JUDGE ALSO
CONCLUDED THAT THE FIFTH AMENDMENT APPLIED EVEN IN THE INJUNCTIVE
ACTION.  INDEED, HE NOTED THAT THE LEADING CASE OF BOYD V. UNITED
STATES, 116 U.S. 616 (1886), INVOLVED FORFEITURE PROCEEDINGS WHICH,
"THOUGH THEY MAY BE CIVIL IN FORM, ARE IN THEIR NATURE CRIMINAL,"  ID.,
AT 634.  HE HELD THAT SINCE MALEY WAS ONLY ACTING TO PROTECT RIGHTS
GUARANTEED BY THE CONSTITUTION TO HIS CLIENT, "HE CANNOT BE HELD IN
CONTEMPT." 

AN APPEAL HAS BEEN FILED FROM THAT JUDGMENT AND IS NOW PENDING
BEFORE THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.  ON
APRIL 15, 1974, WE GRANTED THE PETITION FOR A WRIT OF CERTIORARI, 416
U.S. 934; WE ARE ADVISED THAT THE CASE IS BEING HELD PENDING OUR
DECISION IN THIS CASE. 

     II 

THE NARROW ISSUE IN THIS CASE IS WHETHER A LAWYER MAY BE HELD IN
CONTEMPT FOR ADVISING HIS CLIENT, DURING THE TRIAL OF A CIVIL CASE, TO
REFUSE TO PRODUCE MATERIAL DEMANDED BY A SUBPOENA DUCES TECUM WHEN THE
LAWYER BELIEVES IN GOOD FAITH THE MATERIAL MAY TEND TO INCRIMINATE HIS
CLIENT. 

WE BEGIN WITH THE BASIC PROPOSITION THAT ALL ORDERS AND JUDGMENTS OF
COURTS MUST BE COMPLIED WITH PROMPTLY.  IF A PERSON TO WHOM A COURT
DIRECTS AN ORDER BELIEVES THAT ORDER IS INCORRECT THE REMEDY IS TO
APPEAL, BUT ABSENT A STAY, TO COMPLY PROMPTLY WITH THE ORDER PENDING
APPEAL.  PERSONS WHO MAKE PRIVATE DETERMINATIONS OF THE LAW AND REFUSE
TO OBEY AND ORDER GENERALLY RISK CRIMINAL CONTEMPT EVEN IF THE ORDER IS
ULTIMATLEY RULED INCORRECT.  HOWAT V. KANSAS, 258 U.S. 181, 189 - 190
(1922); WORDEN V. SEARLS, 121 U.S. 14 (1887).  THE ORDERLY AND
EXPEDITIOUS ADMINISTRATION OF JUSTICE BY THE COURTS REQUIRES THAT "AN
ORDER ISSUED BY A COURT WITH JURISDICTION OVER THE SUBJECT MATTER AND
PERSON MUST BE OBEYED BY THE PARTIES UNTIL IT IS REVERSED BY ORDERLY
AND PROPER PROCEEDINGS."  UNITED STATES V. MINE WORKERS, 330 U.S. 258,
293 (1947).  THIS PRINCIPLE IS ESPECIALLY APPLICABLE TO ORDERS ISSUED
DURING TRIAL.  E.G., ILLINOIS V. ALLEN, 397 U.S. 337 (1970).  SUCH
ORDERS MUST BE COMPLIED WITH PROMPTLY AND COMPLETELY, FOR THE
ALTERNATIVE WOULD BE TO FRUSTRATE AND DISRUPT THE PROGRESS OF THE TRIAL
WITH ISSUES COLLATERAL TO THE CENTRAL QUESTIONS IN LITIGATION.  THIS
DOES NOT MEAN, OF COURSE, THAT EVERY RULING BY A PRESIDING JUDGE MUST
BE ACCEPTED IN SILENCE.  COUNSEL MAY OBJECT TO A RULING.  AN OBJECTION
ALERTS OPPOSING COUNSEL AND THE COURT TO AN ISSUE SO THAT THE FORMER
MAY RESPOND AND THE LATTER MAY BE FULLY ADVISED BEFORE RULING.  UNITED
STATES V. LA FRANCA, 282 U.S. 568, 570 (1931).  BUT, ONCE THE COURT HAS
RULED, COUNSEL AND OTHERS INVOLVED IN THE ACTION MUST ABIDE BY THE
RULING AND COMPLY WITH THE COURT'S ORDERS.  WHILE CLAIMS OF ERROR MAY
BE PRESERVED IN WHATEVER WAY THE APPLICABLE RULES PROVIDE, COUNSEL
SHOULD NEITHER ENGAGE THE COURT IN EXTENDED DISCUSSION ONCE A RULING IS
MADE, NOR ADVISE A CLIENT NOT TO COMPLY.  /7/  A LAWYER WHO COUNSELS
HIS CLIENT NOT TO COMPLY WITH A COURT ORDER DURING TRIAL WOULD, FIRST,
SUBJECT HIS CLIENT TO CONTEMPT, AND IN ADDITION, IF HE PERSISTED THE
LAWYER WOULD BE EXPOSED TO SANCTIONS FOR OBSTRUCTING THE TRIAL. 
REMEDIES FOR JUDICIAL ERROR MAY BE CUMBERSOME BUT THE INJURY FLOWING
FROM AN ERROR GENERALLY IS NOT IRREPARABLE, AND ORDERLY PROCESSES ARE
IMPERATIVE TO THE OPERATION OF THE ADVERSARY SYSTEM OF JUSTICE. 

WHEN A COURT DURING TRIAL ORDERS A WITNESS TO REVEAL INFORMATION,
HOWEVER, A DIFFERENT SITUATION MAY BE PRESENTED.  COMPLIANCE COULD
CAUSE IRREPARABLE INJURY BECAUSE APPELLATE COURTS CANNOT ALWAYS "UNRING
THE BELL"  ONCE THE INFORMATION HAS BEEN RELEASED.  SUBSEQUENT
APPELLATE VINDICATION DOES NOT NECESSARILY HAVE ITS ORDINARY
CONSEQUENCE OF TOTALLY REPAIRING THE ERROR.  IN THOSE SITUATIONS WE
HAVE INDICATED THE PERSON TO WHOM SUCH AN ORDER IS DIRECTED HAS AN
ALTERNATIVE: 

"(WE HAVE CONSISTENTLY HELD THAT THE NECESSITY FOR EXPEDITION IN THE
ADMINISTRATION OF THE CRIMINAL LAW JUSTIFIES PUTTING ONE WHO SEEKS TO
RESIST THE PRODUCTION OF DESIRED INFORMATION TO A CHOICE BETWEEN
COMPLIANCE WITH A TRIAL COURT'S ORDER TO PRODUCE PRIOR TO ANY REVIEW OF
THAT ORDER, AND RESISTANCE TO THAT ORDER WITH THE CONCOMITANT
POSSIBILITY OF AN ADJUDICATION OF CONTEMPT IF HIS CLAIMS ARE REJECTED
ON APPEAL.  COBBLEDICK V. UNITED STATES, (309 U.S. 323 (1940);
ALEXANDER V. UNITED STATES, 201 U.S. 117 (1906); CF. UNITED STATES V.
BLUE, 384 U.S. 251 (1966); DIBELLA V. UNITED STATES, 369 U.S. 121
(1962); CARROLL V. UNITED STATES, 354 U.S. 394 (1957)."  UNITED STATES
V. RYAN, 402 U.S. 530, 532 - 533 (1971). 

THIS METHOD OF ACHIEVING PRECOMPLIANCE REVIEW IS PARTICULARLY
APPROPRIATE WHERE THE FIFTH AMENDMENT PRIVILEGE /8/  AGAINST SELF
INCRIMINATION IS INVOLVED.  THE PRIVILEGE HAS ANCIENT ROOTS, SEE, E.G.,
BROWN V. WALKER, 161 U.S. 591, 596 - 597 (1896); MIRANDA V. ARIZONA,
384 U.A. 436, 458 - 463 (1966); SEE ESPECIALLY ID., AT 458 N. 27.  THIS
COURT HAS ALWAYS BROADLY CONSTRUED ITS PROTECTION TO ASSURE THAT AN
INDIVIDUAL IS NOT COMPELLED TO PRODUCE EVIDENCE WHICH LATER MAY BE USED
AGAINST HIM AS AN ACCUSED IN A CRIMINAL ACTION.  COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 562 (1892); ARNDSTEIN V. MCCARTHY , 254 U.S.
71, 72 - 73 (1920).  THE PROTECTION DOES NOT MERELY ENCOMPASS EVIDENCE
WHICH MAY LEAD TO CRIMINAL CONVICTION, BUT INCLUDES INFORMATION WHICH
WOULD FURNISH A LINK IN THE CHAIN OF EVIDENCE THAT COULD LEAD TO
PROSECUTION, AS WELL AS EVIDENCE WHICH AN INDIVIDUAL REASONABLY
BELIEVES COULD BE USED AGAINST HIM IN A CRIMINAL PROSECUTION.  HOFFMAN
V. UNITED STATES, 341 U.S. 479, 486 (1951).  IN VIEW OF THE PLACE THIS
PRIVILEGE OCCUPIES IN THE CONSTITUTION AND IN OUR ADVERSARY SYSTEM OF
JUSTICE, AS WELL AS THE TRADITIONAL RESPECT FOR THE INDICIDUAL THAT
UNDERGIRDS THE PRIVILEGE, THE PROCEDURE DESCRIBED IN RYAN SEEMS AN
EMINENTLY REASONABLE METHOD TO ALLOW PRECOMPLIANCE REVIEW. 

IN THE PRESENT CASE THE CITY ATTORNEY ARGUED THAT IF PETITIONER'S
CLIENT PRODUCED THE MAGAZINES HE WAS AMPLY PROTECTED BECAUSE IN ANY
ENSUING CRIMINAL ACTION HE COULD ALWAYS MOVE TO SUPPRESS, /9/  OR
OBJECT ON FIFTH AMENDMENT GROUNDS TO THE INTRODUCTION OF THE MAGAZINES
INTO EVIDENCE.  LAYING TO ONE SIDE POSSIBLE WAIVER PROBLEMS THAT MIGHT
ARISE IF THE WITNESS FOLLOWED THAT COURSE, CF. ROGERS V. UNITED STATES,
340 U.S. 367 (1951), WE NEVERTHELESS CANNOT CONCLUDE THAT IT WOULD
AFFORD ADQUATE PROTECTION.  WITHOUT SOMETHING MORE  /10/  "HE WOULD BE
COMPELLED TO SURRENDER THE VERY PROTECTION WHICH THE PRIVILEGE IS
DESIGNED TO GUARANTEE."  HOFFMAN V. UNITED STATES, SUPRA, AT 486. 

OUR VIEWS AS TO THE EFFECTIVENESS OF A LATER OBJECTION OR MOTION TO
SUPPRESS DO NOT CONFLICT WITH UNITED STATES V. BLUE, 384, U.S. 251
(1966).  THERE WE SAID: 

     "EVEN IF WE ASSUME THAT THE GOVERNMENT DID ACQUIRE

  INCRIMINATING EVIDENCE IN VIOLATION OF THE FIFTH AMENDMENT, BLUE

  WOULD AT MOST BE ENTITLED TO SUPPRESS THE EVIDENCE AND ITS FRUITS

  IF THEY WERE SOUGHT TO BE USED AGAINST HIM AT TRIAL."  ID., AT

  255. 

BUT THE CRUCIAL DISTINCTION BETWEEN THAT CASE AND THE INSTANT QUESTION
IS THAT THERE THE GOVERNMENT INDEED "DID ACQUIRE" THE INFORMATION. 
BLUE HAD TURNED IT OVER DURING A CIVIL INVESTIGATION WITHOUT ASSERTING
THE FIFTH AMENDMENT PRIVILEGE.  HERE, ON THE CONTRARY, PETITIONER'S
CLIENT HAD NOT YET DELIVERED THE SUBPOENAED MATERIAL, AND HE
CONSISTENTLY AND VIGOROUSLY ASSERTED HIS PRIVILEGE.  HERE THE "CAT" WAS
NOT YET "OUT OF THE BAG" AND RELIANCE UPON A LATER OBJECTION OR MOTION
TO SURPRESS WOULD "LET THE CAT OUT" WITH NO ASSURANCE WHATEVER OF
PUTTING IT BACK. 

THUS IN ADVISING HIS CLIENT TO RESIST AND RISK A CONTEMPT CITATION,
THEREBY ALLOWING PRECOMPLIANCE APPELLATE REVIEW OF THE CLAIM,
PETITIONER COUNSELED A FAMILIAR PROCEDURE.  ALTHOUGH IT IS CLEAR THAT
NONCOMPLIANCE RISKED BOTH AN IMMEDIATE CONTEMPT CITATION AND A FINAL
CRIMINAL CONTEMPT JUDGMENT AGAINST THE WITNESS IF, ON APPEAL,
PETITIONER'S ADVICE PROVED TO BE WRONG, THE ISSUE HERE IS WHETHER
PETITIONER, AS COUNSEL, CAN BE PENALIZED FOR GOOD-FAITH ADVICE TO CLAIM
THE PRIVILEGE. 

IT APPEARS THAT HERE THE TRIAL JUDGE REJECTED THE FIFTH AMENDMENT
CLAIM &RIMARILY BECAUSE IT WAS RAISED IN A CIVIL  /11/  AND NOT A
CRIMINAL CASE.  THE CITY ATTORNEY RELIED MOST HEAVILY ON THAT
DISTINCTION IN HIS ARGUMENT IN OPPOSITION TO THE MOTION TO QUASH.  /12/
JUST AS VIGOROUSLY, PETITIONER CONTENDED THAT THE PRIVILEGE AGAINST
SELF-INCRIMINATION PROTECTED HIS CLIENT REGARDLESS OF THE NATURE OF THE
PROCEEDING.  HE SAID: 

     "IT IS VERY CLEAR THAT THE COVERAGE OF THE FIFTH AMENDMENT IS

  NOT TO BE DETERMINED BY THE NATURE OF THE PROCEEDING IN WHICH IT

  IS ASSERTED.  THE FIFTH AMENDMENT APPLIES TO ALL PROCEEDINGS, TO

  INJUNCTIVE PROCEEDINGS, TO ADMINISTRATIVE PROCEEDINGS, AND TO

  CRIMINAL PROCEEDINGS.  IT APPLIES TO INTERROGATION BY POLICE

  OFFICERS OUT OF COURT.  IT APPLIES ACROSS THE BOARD.  WE ARE NOT

  TALKING ABOUT THE CONTEXT OF THE PROCEEDINGS IN WHICH THE

  PRIVILEGE AGAINST SELF-INCRIMINATION IS ASSERTED.  WE ARE TALKING

  ABOUT THE CHARACTER OF MATERIAL THAT IS SOUGHT TO BE TAKEN FROM

  THE PERSON WHO IS SUBJECT TO THE SUBPOENA. 

     "... (THE TEST IN THOSE CIRCUMSTANCES IS WHETHER THERE IS A

  SUBSTANTIAL PROBABILITY IN REQUIRING THE PARTY THAT IS SERVED

  WITH THE SUPOENA TO PRODUCE THE EVIDENCE, WHICH EVIDENCE WOULD

  ENTAIL SELF-INCRIMINATION, AND WITH THE PRODUCTION OF THE

  MAGAZINES FOR POSSIBLE USE IN A CRIMINAL PROSECUTION, AND WE SAY

THAT THIS WOULD AMOUNT TO A VIOLATION OF THE PRIVILEGE UNDER THE

  FIFTH AMENDMENT, AND WE CONTEND THAT IT MOST CERTAINLY WOULD, AND

  THAT IT MUST."  APP. 13 - 14. 

IN OVERRULING THE CLAIMED PRIVILEGE THE TRIAL JUDGE SEEMS TO HAVE
ACCEPTED THE CITY ATTORNEY'S CONTENTION THAT THE CLAIM IS NOT AVAILABLE
IN A CIVIL PROCEEDING.  WE DISAGREE. 

IN KASTIGAR V. UNITED STATES, 406 U.S. 441 (1972), WE RECENTLY
REAFFIRMED THE PRINCIPLE THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION
CAN BE ASSERTED "IN ANY PROCEEDING, CIVIL OR CRIMINAL, ADMINISTRATIVE
OR JUDICIAL, INVESTIGATORY OR ADJUDICATORY."  ID., AT 444; LEFKOWITZ V.
TURLEY, 414 U.S. 70, 77 (1973); MURPHY V. WATERFRONT COMM'N, 378 U.S.
52, 94 (1964) (WHITE, J., CONCURRING); MCCARTHY V. ARNDSTEIN, 266 U.S.
34, 40 (1924); UNITED STATES V. SALINE BANK, 1 PET. 100 (1828); CF.
GARDNER V. BRODERICK, 392 U.S. 273 (1968).  THE TRIAL JUDGE SEEMS TO
HAVE PROCEEDED UPON THE MISTAKEN PREMISE THAT PETITIONER'S CLIENT WAS
MISADVISED EVEN TO ASSERT THE PRIVILEGE IN A CIVIL PROCEEDING,
REGARDLESS OF ITS ULTIMATE MERIT.  THIS ERROR EXPLAINS THE SEVERE
SANCTION THE COURT PLACED--, ALBEIT RELUCTANTLY--UPON PETITIONER
BECAUSE HIS ADVICE SEEMED TO HAVE CAUSED THE WITNESS' REFUSAL TO OBEY. 
/13/  THUS THE ISSUE IS WHETHER IN A CIVIL PROCEEDING A LAWYER MAY BE
HELD IN CONTEMPT FOR COUNSELING A WITNESS IN GOOD FAITH TO REFUSE TO
PRODUCE COURT-ORDERED MATERIALS ON THE GROUND THAT THE MATERIALS MAY
TEND TO INCRIMINATE THE WITNESS IN ANOTHER PROCEEDING.  WE HOLD THAT ON
THIS RECORD PETITIONER MAY NOT BE PENALIZED EVEN THOUGH HIS ADVICE
CAUSED THE WITNESS TO DISOBEY THE COURT'S ORDER. 

THE PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION WOULD BE DRAINED
OF ITS MEANING IF COUNSEL, BEING LAWFULLY PRESENT, /14/  AS HERE, COULD
BE PENALIZED FOR ADVISING HIS CLIENT IN GOOD FAITH TO ASSERT IT.  THE
ASSERTION OF A TESTIMONIAL PRIVILEGE, AS OF MANY OTHER RIGHTS, OFTEN
DEPENDS UPON LEGAL ADVICE FROM SOMEONE WHO IS TRAINED AND SKILLED IN
THE SUBJECT MATTER, AND WHO MAY OFFER A MORE OBJECTIVE OPINION.  A
LAYMAN MAY NOT BE AWARE OF THE PRECISE SCOPE, THE NUANCES, AND
BOUNDARIES OF HIS FIFTH AMENDMENT PRIVILEGE.  /15/  IT IS NOT A SELF
EXECUTING MECHANISM; IT CAN BE AFFIRMATIVELY WAIVED, OR LOST BY NOT
ASSERTING IT IN A TIMELY FASHION.  IF PERFORMANCE OF A LAWYER'S DUTY TO
ADVISE A CLIENT THAT A PRIVILEGE IS AVAILABLE EXPOSES A LAWYER TO THE
THREAT OF CONTEMPT FOR GIVING HONEST ADVICE IT IS HARDLY DEBATABLE THAT
SOME ADVOCATES MAY LOSE THEIR ZEAL FOR FORTHRIGHTNESS AND
INDEPENDENCE.  /16/ 

THERE IS A CRUCIAL DISTINCTION BETWEEN CITING A RECALCITRANT WITNESS
FOR CONTEMPT, UNITED STATES V. RYAN, SUPRA, AND CITING THE WITNESS'
LAWYER FOR CONTEMPT BASED ONLY ON ADVICE GIVEN IN GOOD FAITH TO ASSERT
THE PRIVILEGE AGAINST SELF-INCRIMINATION.  THE WITNESS, ONCE ADVISED OF
THE RIGHT, CAN CHOOSE FOR HIMSELF WHETHER TO RISK CONTEMPT IN ORDER TO
TEST THE PRIVILEGE BEFORE EVIDENCE IS PRODUCED.  THAT DECISION IS, AND
SHOULD BE, FOR THE WITNESS.  BUT, IF HIS LAWYER MAY BE PUNISHED FOR
ADVICE SO GIVEN THERE IS A GENUINE RISK THAT A WITNESS EXPOSED TO
POSSIBLE SELF-INCRIMINATION WILL NOT BE ADVISED OF HIS RIGHT.  THEN THE
WITNESS MAY BE DEPRIVED OF THE OPPORTUNITY TO DECIDE WHETHER OR NOT TO
ASSERT THE PRIVILEGE. 

AN EARLY EXAMPLE OF THIS SITUATION IS FOUND IN RE WATTS, 190 U.S. 1
(1903).  THERE LAWYERS ADVISED THEIR CLIENTS IN GOOD FAITH THAT STATE,
NOT FEDERAL, COURTS HAD BANKRUPTCY JURISDICTION OVER A CERTAIN PROPERTY
IN THE HANDS OF A STATE RECEIVER.  THIS ADVICE LED TO A COLLISION
BETWEEN THE STATE AND FEDERAL COURTS, AND CONTEMPT CITATIONS FOR THE
LAWYERS.  ALTHOUGH THIS COURT HELD THAT THE LAWYERS' ADVICE WAS
SUBSTANTIVELY INCORRECT, IT REFUSED TO ALLOW THE FEDERAL CONTEMPT
CONVICTIONS TO STAND BECAUSE THERE WAS NO EVIDENCE THE ADVICE WAS GIVEN
IN BAD FAITH.  ID., AT 32.  MR. CHIEF JUSTICE FULLER, SPEAKING FOR THE
COURT, SAID: 

"IN THE ORDINARY CASE OF ADVICE TO CLIENTS, IF AN ATTORNEY ACTS IN
GOOD FAITH AND IN THE HONEST BELIEF THAT HIS ADVICE IS WELL FOUNDED AND
IN THE JUST INTERESTS OF HIS CLIENT, HE CANNOT BE HELD LIABLE FOR ERROR
IN JUDGMENT.  THE PRESERVATION OF THE INDEPENDENCE OF THE BAR IS TOO
VITAL TO THE DUE ADMINISTRATION OF JUSTICE TO ALLOW OF THE APPLICATION
OF ANY OTHER GENERAL RULE."  ID., AT 29. 

WE CONCLUDE THAT AN ADVOCATE IS NOT SUBJECT TO THE PENALTY OF
CONTEMPT FOR ADVISING HIS CLIENT, IN GOOD FAITH, TO ASSERT THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION IN ANY PROCEEDING
EMBRACING THE POWER TO COMPEL TESTIMONY.  TO HOLD OTHERWISE WOULD DENY
THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION THE MEANS OF
ITS OWN IMPLEMENTATION.  WHEN A WITNESS IS SO ADVISED THE ADVICE
BECOMES AN INTEGRAL PART OF THE PROTECTION ACCORDED THE WITNESS BY THE
FIFTH AMENDMENT. 

        III 

IN APPLYING THESE PRINCIPLES IT IS IMPORTANT TO NOTE WHAT THIS CASE
DOES NOT INVOLVE: THE CLAIM IS NOT BASED SOLELY ON PRIVACY; THIS IS NOT
A CASE WHERE STATE LAW IS CLEAR THAT RESPONSE TO COMPULSORY PROCESS
UNDER PROTEST RENDERS THE RESPONSE INADMISSIBLE IN ANY CRIMINAL
PROSECUTION AGAINST THE WITNESS; MOST IMPORTANT, THERE IS NO CONTENTION
HERE AS TO LACK OF GOOD FAITH OR REASONABLE GROUNDS FOR ASSERTION OF A
FIFTH AMENDMENT CLAIM. 

BOTH IN A PRETRIAL WRITTEN MOTION AND ORALLY DURING TRIAL,
PETITIONER CONGENTLY STATED HIS REASONS FOR BELIEVING THE PRIVILEGE
APPLIED: 

  "THE VIEW OF THE FACT THAT THERE IS THIS SUBSTANTIAL

POSSIBILITY OF SELF-INCRIMINATION; IN VIEW OF THE FACT THAT SEVEN

  OTHER MAGAZINES THAT ARE OF THE SAME CHARACTER AS THE . . .

  MAGAZINES NAMED IN THE SUBPOENA, THAT THEY HAVE PROVIDED THE

  BASIS FOR PAST CRIMINAL PROSECUTIONS; IN VIEW OF THE FACT THAT

  CRIMINAL PROSECUTIONS ARE NOT ONLY A VERY DEFINITE POSSIBILITY,

  THEY ARE IN FACT A PRONOUNCED POSSIBILITY, AND SO THERE IS LITTLE

  REASONABLE DOUBT IN THESE CIRCUMSTANCE THAT THE SUBPOENA SHOULD

  BE QUASHED BECAUSE IN FACT IT SEEKS TO COMPEL THE PERSON NAMED IN

THE SUBPOENA TO INCRIMINATE HIMSELF, AND, OF COURSE, THIS IS

  PROHIBITED BY THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE

  UNITED STATES."  APP. 9 - 10. 

PETITIONER STATED THAT THE MAGAZINES WERE "OF THE SAME CHARACTER"  /17/
AS MAGAZINES FOR DISTRIBUTION OF WHICH HIS CLIENT HAD RECENTLY
SUFFERED A CRIMINAL CONVICTION.  THERE WAS THEREFORE, AT THE VERY
LEAST, A REASONABLE BASIS FOR PETITIONER TO ASSUME THAT A RISK OF
FURTHER CRIMINAL PROSECUTION EXISTED.  /18/  BOTH SIDES AGREE THAT THE
RECORD IS DEVOID OF EVIDENCE OF CONTUMACIOUS CONDUCT OR ANY DISRESPECT
FOR THE COURT, CF., E.G., IN RE LITTLE, 404 U.S. 553, 554 - 555
(1972).  THE HIGHLY PROFESSIONAL TONE OF THE PROCEEDING IS REVEALED BY
THE STATEMENTS OF THE JUDGE, AND BY PETITIONER'S CLOSING COMMENTS TO
THE JUDGE AFTER HE HAD BEEN CITED FOR CONTEMPT: 

"IF IT PLEASE THE COURT, I CERTAINLY APPRECIATE THE COURT'S

 POSITION.  I THINK WHAT WE HAVE HERE IS NOT A SITUATION, AND I

  HOPE THIS IS CORRECT, WHERE COUNSEL HAVE DELIBERATELY AND

  INTENTIONALLY ATTEMPTED TO FRUSTRATE THE COURT.  I THINK THAT

  RATHER WHAT WE HAVE IS WHERE THERE IS A PHILOSPHICAL DIFFERENCE

  BETWEEN COUNSEL FOR THE DEFENDANT AND THE COURT WITH REGARD TO

  THE APPLICABLE LAW AS TO SELF-INCRIMINATION AND THE PRODUCTION OF

  EVIDENCE IN A CIVIL CASE."  APP. 32. 

ON THIS RECORD, WITH NO STATE STATUTE OR RULE GUARANTEEING A PRIVILEGE
OR ASSURING THAT AT A LATER CRIMINAL PROSECUTION THE COMPELLED
MAGAZINES WOULD BE INADMISSIBLE, IT APPEARS THAT THERE WAS NO AVENUE
OTHER THAN ASSERTION OF THE PRIVILEGE, WITH THE RISK OF CONTEMPT, THAT
WOULD HAVE PROVIDED ASSURANCE OF APPELLATE REVIEW IN ADVANCE OF
SURRENDERING THE MAGAZINES.  WE ARE SATISFIED THAT PETITIONER PROPERLY
PERFORMED HIS DUTIES AS AN ADVOCATE HERE, AND HE CANNOT SUFFER ANY
PENALTY FOR PERFORMING SUCH DUTIES IN GOOD FAITH.  /19/

 REVERSED. 

/1/  TEXAS PENAL CODE, ART. 527 (SUPP. 1973), REGULATES DISTRIBUTION
OF OBSCENE ARTICLES.  GENERALLY, IT PROVIDES CRIMINAL PENALITIES FOR
SPECIFIC ACTS OF DISTRIBUTION.  IN 13, HOWEVER, IT PROVIDES FOR AN
INJUNCTION TO ENFORCE ITS OTHER PROVISIONS: 

"SEC. 13.  THE DISTRICT COURTS OF THIS STATE AND THE JUDGES THEREOF
SHALL HAVE FULL POWER, AUTHORITY, AND JURISDICTION, UPON APPLICATION BY
ANY DISTRICT, COUNTY, OR CITY ATTORNEY WITHIN THEIR RESPECTIVE
JURISDICTIONS, OR THE ATTORNEY GENERAL TO ISSUE ANY AND ALL PROPER
RESTRAINING ORDERS, TEMPORARY AND PERMANENT INJUNCTIONS, AND ANY OTHER
WRITS AND PROCESSES APPROPRIATE TO CARRY OUT AND ENFORCE THE PROVISIONS
OF THIS ARTICLE.  SUCH RESTRAINING ORDERS OR INJUNCTIONS MAY ISSUE TO
PREVENT ANY PERSON FROM VIOLATING ANY OF THE PROVISIONS OF THIS
ARTICLE.  HOWEVER, NO RESTRAINING ORDER OR INJUNCTION SHALL ISSUE
EXCEPT UPON NOTICE TO THE PERSON SOUGHT TO BE ENJOINED.  SUCH PERSON
SHALL BE ENTITLED TO A TRIAL OF THE ISSUES WITHIN ONE DAY AFTER JOINDER
OF ISSUE AND A DECISION SHALL BE RENDERED BY THE COURT WITHIN TWO DAYS
OF THE CONCLUSION OF THE TRIAL.  IN THE EVENT THAT A FINAL ORDER OR
JUDGMENT OF INJUNCTION BE ENTERED AGAINST THE PERSON SOUGHT TO BE
ENJOINED, SUCH FINAL ORDER OR JUDGMENT SHALL CONTAIN A PROVISION
DIRECTING THE PERSON TO SURRENDER TO THE SHERIFF OF THE COUNTY IN WHICH
THE ACTION WAS BROUGHT ANY OBSCENE MATTER IN HIS POSSESSION AND SUCH
SHERIFF SHALL BE DIRECTED TO SEIZE AND DESTROY SUCH MATTER."  THE
ENTIRE ARTICLE WAS REPEALED BY ACTS 1973, 63D LEG., C. 399, 3 (A), P.
992, EFFECTIVE JANUARY 1, 1974.  THE NEW LAW DOES NOT SEEM TO HAVE ANY
PROVISION EQUIVALENT TO 13. 

/2/  THE PARTIES STIPULATED THAT THE CONVICTION HAD OCCURRED AND AND
WAS THEN UNDER APPEAL. 

/3/  IT APPEARS THAT THE TEMPLE CITY CRIMINAL ORDINANCE DEALING WITH
OBSCENITY IS SUBSTANTIALLY IDENTICAL TO CRIMINAL PROVISIONS OF ART.
527.  TEXAS PENAL CODE, ART. 527, 12 (SUPP. 1973), PROVIDES: 

"SEC. 12.  NO CITY, COUNTY OR OTHER POLITICAL SUBDIVISION MAY ENACT
ANY REGULATION OF OBSCENE MATERIAL WHICH CONFLICTS WITH PROVISIONS OF
THIS ACT; HOWEVER, A CITY, COUNTY, OR OTHER POLITICAL SUBDIVISION IS
AUTHORIZED TO REGULATE FURTHER THE MEANS AND MANNER OF DISTRIBUTION AND
EXHIBITION OF MATTER."  AT THE HEARING THE COURT TOOK JUDICIAL NOTICE
OF THE SIMILARITY BETWEEN ART. 527 AND THE TEMPLE CRIMINAL ORDINANCE. 
APP. 29. 

/4/  THE CORRECTNESS OF THE CONCLUSION AS TO INFERENCES TO BE DRAWN
FROM A WITNESS' FAILURE TO RESPOND IS NOT BEFORE US FOR DECISION. 

/5/  THE ONLY QUESTION PRESENTED HERE IS THE VALIDITY OF THE
CONTEMPT PENALTY IMPOSED UPON THE ATTORNEY.  THE VALIDITY OF THE
CONTEMPT PENALTY IMPOSED ON PETITIONER'S CLIENT IS NOT BEFORE US. 

/6/  "ART.  1911A.  CONTEMPT; POWER OF COURTS; PENALTIES

        *         *    *         *         *

        "PENALITIES FOR CONTEMPT 

"SEC. 2.  (A) EVERY COURT OTHER THAN A JUSTICE COURT OR MUNICIPAL
COURT MAY PUNISH BY A FINE OF NOT MORE THAN $500, OR BY CONFINEMENT IN
THE COUNTY JAIL FOR NOT MORE THAN SIX MONTHS, OR BOTH, ANY PERSON
GUILTY OF CONTEMPT OF THE COURT. 

*         *         *         *         * 

"(C) PROVIDED, HOWEVER, AN OFFICER OF A COURT HELD IN CONTMEPT BY A
TRIAL COURT, SHALL, UPON PROPER MOTION FILED IN THE OFFENDED COURT, BE
RELEASED UPON HIS OWN PERSONAL RECOGNIZANCE PENDING A DETERMINATION OF
HIS GUILT OR INNOCENCE BY A JUDGE OF A DISTRICT COURT, OTHER THAN THE
OFFENDED COURT.  SAID JUDGE TO BE APPOINTED FOR THAT PURPOSE BY THE
PRESIDING JUDGE OF THE ADMINISTRATIVE JUDICIAL DISTRICT WHEREIN THE
ALLEGED CONTEMPT OCCURRED. 

"CONFINEMENT TO ENFORCE ORDER 

"SEC. 3.  NOTHING IN THIS ACT AFFECTS A COURT'S POWER TO CONFINE A
CONTEMNER IN ORDER TO COMPEL HIM TO OBEY A COURT ORDER."  TEX. REV.
CIV. STAT., ART. 1911 (SUPP. 1974 - 1975). 

/7/  IN A CASE DEALING WITH MISCONDUCT OF ATTORNEYS BUT DECIDED
UNDER THE FEDERAL RULES OF CRIMINAL PROCEDURE, MR. JUSTICE JACKSON
DISCUSSED THESE SAME ELEMENTARY PROPOSITIONS: 

"OF COURSE, IT IS THE RIGHT OF COUNSEL FOR EVERY LITIGANT TO PRESS
HIS CLAIM, EVEN IF IT APPEARS FARFETCHED AND UNTENABLE, TO OBTAIN THE
COURT'S CONSIDERED RULING.  FULL ENJOYMENT OF THAT RIGHT, WITH DUE
ALLOWANCE FOR THE HEAT OF CONTROVERSY, WILL BE PROTECTED BY APPELATE
COURTS WHEN INFRINGED BY TRIAL COURTS.  BUT IF THE RULING IS ADVERSE,
IT IS NOT COUNSEL'S RIGHT TO RESIST OR TO INSULT THE JUDGE--HIS RIGHT
IS ONLY RESPECTFULLY TO PRESERVE HIS POINT FOR APPEAL.  DURING A TRIAL,
LAWYERS MUST SPEAK, EACH IN HIS OWN TIME AND WITHIN HIS ALLOWED TIME,
AND WITH RELEVANCE AND MODERATION.  THESE ARE SUCH OBVIOUS MATTERS THAT
WE SHOULD NOT REMIND THE BAR OF THEM WERE IT NOT FOR THE MISCONCEPTIONS
MANIFEST IN THIS CASE."  SACHER V. UNITED STATES, 343 U.S. 1,9 (1952). 

/8/  THIS CASE DEALS ONLY WITH THE PRIVILEGE AGAINST SELF
INCRIMINATION CONTAINED IN THE FIFTH AMENDMENT OT THE CONSTITUTION AND
MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDEMNT.  MALLOY V.
HOGAN, 378 U.S. 1 (1964).  THE CONSTITUTIONAL BASIS FOR THIS PRIVILEGE
DISTINGUISHES IT FROM OTHER PRIVILEGES ESTABLISHED BY STATE STATUTE OR
COMMON LAW SUCH AS THOSE ARISING FROM THE RELATION OF PRIEST AND
PENITENT, LAWYER AND CLIENT, PHYSICIAN AND PATIENT, AND HUSBAND AND
WIFE.  WE ARE NOT NOW PRESENTED WITH QUESTIONS AS TO THE SCOPE OF
PRIVILEGES NOT FOUND IN THE CONSTITUTION. 

/9/  COUNSEL FOR RESPONDENT COULD CITE NO TEXAS STATUTE OR CASE
GIVING ASSURANCE THAT THE MAGAZINES WOULD BE SUPPRESSED BECAUSE THEY
WERE PRODUCED INVOLUNTARILY SO THE WITNESS COULD AVOID A CONTEMPT
CITATION. 

/10/  IT IS IMPORTANT HERE THAT THE WITNESS WAS NOT GRANTED IMMUNITY
FROM PROSECUTION ON THE BASIS OF ANY MAGAZINES HE MIGHT PRODUCE.  QUITE
THE CONTRARY, HE WAS ORDERED TO PRODUCE AFTER VULNERABILITY TO
PROSECUTION HAD BEEN MADE ONLY TOO CLEAR TO HIM.  IN RESPONSE TO THE
CITY ATTORNEY'S ASSERTION THAT HE DID NOT INTEND TO PROSECUTE BASED ON
THE MAGAZINES, PETITIONER NOTED THAT THE STATE OR COUNTY MIGHT STILL
PROSECUTE, SUPRA, AT 452, 453, AND NEITHER THE CITY ATTORNEY NOR THE
JUDGE DISAGREED.  SEE NO. 9, SUPRA. 

HAD THE WITNESS BEEN GRANTED FORMAL IMMUNITY A DIFFERENT CASE WOULD
BE PRESENTED; IN THAT EVENT A WITNESS MAY BE COMPELLED TO TESTIFY. 
KASTIGAR.  V UNITED STATES, 406 U.S. 411 (1972).  IF COUNSEL, IN THE
FACE OF A GRANT IF IMMUNITY, ADVISED HIS CLIENT NOT TO TESTIFY OR
PRODUCE INFORMATION, A DIFFERENT QUESTION WOULD BE PRESENTED BECAUSE
THE GOOD FAITH OF THE ATTORNEY WOULD BE OPEN TO DOUBT. 

/11/  PETITIONER ALSO ARGUED, AS WE NOTED EARLIER, THAT THE
PROCEEDING WAS NOT CIVIL AT ALL BUT RATHER WAS "QUASI CRIMINAL."  APP.
10.  HE NOTED THAT THE PROCEEDING WAS BASED UPON "THE PROVISIONS OF
THE INJUNCTIVE ACTION AS A MERE PRELUDE TO A CRIMINAL PROSECUTION. 
THUS HE CONTENDED THAT THE CITY SHOULD HAVE SOUGHT THE MAGAZINES WITH A
SEARCH WARRANT INSTEAD OF A SUBPOENA DUCES TECUM. 

/12/  ID., AT 12. 

/13/  PETITIONER READILY CONCEDES THAT HIS ADVICE INDEED CAUSED HIS
CLIENT TO DISOBEY THE ORDER.  WHEN THE COURT GAVE PETITIONER'S CLIENT A
FINAL CHANCE TO PURGE HIMSELF OF THE CONTEMPT CITATION THIS COLLOQUY
TOOK PLACE: 

"THE COURT: MR. MCKELVA, YOU HAVE BEEN ADJUDGED TO BE IN CONTEMPT OF
THIS COURT FOR HAVING FAILED TO OBSERVE A SUBPOENA DUCES TECUM TO BRING
CERTAIN MATTERS WITH YOU AS A WITNESS.  IN YOUR TESTIMONY WITH
REDERENCE TO WHY YOU FAILED TO DO THIS, YOU FIRST INDICATED THAT IT WAS
ON THE ADVICE OF COUNSEL THAT YOU WERE DECLINING TO OBEY THE SUBPOENA,
AND SO I WANT TO ASK YOU DIRECTLY THIS MORNING, IS YOUR DISOBEDIENCE TO
THIS SUBPOENA YOUR OWN DECISION, OR IS IT ON THE ADVICE OF COUNSEL, AND
IF SO, WHAT COUNSEL? 

"A.  IT IS ON THE ADVICE OF COUNSEL, SIR, AND MR. FRIEDMAN, MR.
MALEY AND MR. MANESS. 

"THE COURT: DOES EITHER COUNSEL HAVE ANY QUESTIONS THAT THEY WANT TO
ASK THIS WITNESS? 

"MR. MANESS: YOUR HONOR, I WOULD ONLY LIKE TO ASK MR. MCKELVA, IN
THE EVENT THAT HIS COUNSEL WERE TO ADVISE HIM THAT HIS PRIVILEGES
AGAINST SELF-INCRIMINATION WERE NOT ENDANGERED BY PRODUCING THE . . .
MAGAZINES IN QUESTION, WHETHER OR NOT UNDER THOSE CIRCUMSTANCES HE
WOULD PRODUCE THE MAGAZINES? 

"A. I WOULD."  APP. 27.  COUNSEL THUS TOOK FULL RESPONSIBILITY FOR
HIS CLIENT'S ACTS, AS, OF COURSE, HIS DUTY TO HIS CLIENT REQUIRED. 

/14/  UNDER TEXAS PROCEDURE AND THE RULINGS OF THE TRIAL COURT IN
THIS CASE THE CLIENT WAS UNDOUBTEDLY ENTITLED TO CONSULT WITH COUNSEL
AT THE TIMES AND IN THE MANNER HE DID. 

/15/  MR. JUSTICE STEWART WOULD APPEAR TO EXTEND OUR REASONING FAR
BEYOND THE CONFINES OF THIS CASE.  WE DO NOT AGREE THAT OUR REASONING
LEADS "INEXORABLY" TO HIS CONCLUSION.  WE HAVE HERE A CASE WHERE
RETAINED COUNSEL, IN A PROCEEDING WHICH HE STRENUOUSLY ARGUED WAS NOT
CIVIL BUT QUASI-CRIMINAL, HAS BEEN HELD IN CONTEMPT FOR ADVISING HIS
CLIENT THAT HE MAY ASSERT THE FIFTH AMENDMENT PRIVILEGE. 

RELIANCE SEEMS TO US MISPLACED ON THE STATEMENT IN POWELL V.
ALABAMA, 287 U.S. 45, 69 (1932), THAT "(IF IN ANY CASE, CIVIL OR
CRIMINAL, A STATE OR FEDERAL COURT WERE ARBITRARILY TO REFUSE TO HEAR A
PARTY BY COUNSEL, EMPLOYED BY AND APPEARING FOR HIM . . . SUCH A
REFUSAL WOULD BE A DENIAL OF A HEARING, AND, THEREFORE, OF DUE
PROCESS...."  COMMENTS IN A CRIMINAL CASE AS TO THE LAW IN A CIVIL CASE
HARDLY REACH THE LEVEL OF CONSTITUTIONAL DOCTRINE, IF INDEED THEY ARE
ANY MORE THAN DICTA.  FROM THESE DICTA IT IS ARGUED THAT IT EQUALLY
VIOLATES DUE PROCESS TO PUNISH AN ATTORNEY FOR ADVISING A WITNESS OF A
PRIVILEGE AS TO PREVENT THE ATTORNEY FROM APPEARING AT ALL; ALSO THAT A
CONTEMPT CITATION MAY "CONSTITUTE AN ARBITRARY INTERFERENCE WITH THE
CONSTITUTIONALLY PROTECTED ATTORNEY-CLIENT RELATIONSHIP," POST, AT 472,
EVEN WHERE NO CONSTITUTIONAL PRIVILEGE IS INVOLVED.  WE NEED NOT GO SO
FAR NOR TRAVEL SUCH A CIRCUITOUS ROUTE TO REACH OUR CONCLUSION HERE. 
WE ARE NOT AWARE THAT THE COURT HAS EVER IDENTIFIED A "CONSTITUTIONALLY
PROTECTED ATTORNEY-CLIENT" PRIVILEGE OF THE SCOPE POSTULATED BY MR.
JUSTICE STEWART. 

/16/  THE AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, DEFENSE FUNCTION 1.6 (APPROVED DRAFT 1971) SHOWS THE
DIFFICULTY SUCH A SITUATION WOULD PRESENT FOR A LAWYER:  "(THE DUTIES
OF A LAWYER TO HIS CLIENT ARE TO REPRESENT HIS LEGITIMATE INTERESTS,
AND CONSIDERATIONS OF PERSONAL AND PROFESSIONAL ADVANTAGE SHOULD NOT
INFLUENCE HIS ADVICE OR PERFORMANCE."  THE INTRODUCTORY COMMENTS NOTE
THAT:  "A LAWYER CQANNOT BE TIMOROUS IN HIS REPRESENTATION.  COURAGE
AND ZEAL IN THE DEFENSE OF HIS CLIENT'S INTEREST ARE QUALITIES WITHOUT
WHICH ONE CANNOT FULLY PERFORM AS AN ADVOCATE."  ID., AT 146. 

/17/  PETITIONER'S CONCESSION THAT THE SUBPOENAED MAGAZINES WERE OF
THE SAME CHARACTER WAS NOT AN ADMISSION THEY WERE OBSCENE.  HIS
CONTENTION SEEMS TO HAVE BEEN THAT THEY WERE SUFFICIENTLY LIKE THOSE
FOR WHICH HIS CLIENT PREVIOUSLY HAD BEEN CONVICTED AS TO RAISE THE
POSSIBILITY OF PROSECUTION, AND THUS TO ALLOW ASSERTION OF THE FIFTH
AMENDMENT PRIVILEGE. 

/18/  IN VIEW OF OUR DISPOSITION OF THIS CASE UPON OTHER GROUNDS WE
NEED NOT, AND DO NOT, DECIDE WHETHER THE FIFTH AMENDMENT PRIVILEGE
ACTUALLY ENCOMPASSES THESE MAGAZINES. 

/19/  WE RECOGNIZE THAT THERE MAY BE INSTANCES WHERE ADVICE TO PLEAD
THE FIFTH ADMENDMENT COULD BE GIVEN IN BAD FAITH, OR COULD BE PATENTLY
FRIVOLOUS OR FOR PURPOSES OF DELAY, AND SUCH INSTANCES WOULD PRESENT
FAR DIFFERENT ISSUES FROM THOSE HERE.  SEE COLE V. UNITED STATES, 329
F.2D 437 (CA9), CERT. DENIED, 377 U.S. 954 (1964); UNITED STATES V.
CIOFFI, 493 F.2D 1111, 1119 (CA2), CERT. DENIED, 419 U.S. 917 (1974). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BLACKMUN JOINS,
CONCURRING IN THE RESULT. 

THE COURT TODAY HOLDS THAT THE CONSTITUTIONAL PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION EMBRACES THE RIGHT OF A TESTIFYING PARTY
TO THE UNFETTERED ADVICE OF COUNSEL IN A CIVIL PROCEEDING.  AS THE
COURT PUTS THE MATTER, A "LAYMAN MAY NOT BE AWARE OF THE PRECISE SCOPE,
THE NUANCES, AND BOUNDARIES OF HIS FIFTH AMENDMENT PRIVILEGE.  IT IS
NOT A SELF-EXECUTING MECHANISM; IT CAN BE AFFIRMATIVELY WAIVED, OR LOST
BY NOT ASSERTING IT IN A TIMELY FASHION.  . . . (IF HIS LAWYER MAY BE
PUNISHED FOR ADVICE SO GIVEN THERE IS A GENUINE RISK THAT A WITNESS
EXPOSED TO POSSIBLE SELF-INCRIMINATION WILL NOT BE ADVISED OF HIS
RIGHT.  THEN THE WITNESS MAY BE DEPRIVED OF THE OPPORTUNITY TO DECIDE
WHETHER OR NOT TO ASSERT THE PRIVILEGE."  ANTE, AT 466 - 467.  HC #470
THE PREMISE UNDERLYING THE CONCLUSION THAT THE CONSTITUTIONAL PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION INCLUDES THE RIGHT TO THE
UNFETTERED ADVICE OF COUNSEL IN CIVIL PROCEEDINGS MUST BE THAT THERE IS
A CONSTITUTIONAL RIGHT, ALSO DERIVED FROM THE PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION, TO SOME ADVICE OF COUNSEL CONCERNING THE
PRIVILEGE IN THE FIRST PLACE.  THE COURT'S RATIONALE THUS INEXORABLY
IMPLIES THAT COUNSEL MUST BE APPOINTED FOR ANY INDIGENT WITNESS,
WHETHER OR NOT HE IS A PARTY, IN ANY PROCEEDING IN WHICH HIS TESTIMONY
CAN BE COMPELLED.  FOR SURELY FEW INDIGENTS WILL BE MORE COGNIZANT THAN
WAS MANESS' CLIENT OF THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION, LET ALONE AWARE OF THE "NUANCES" OF THE PRIVILEGE. 
UNLESS COUNSEL IS APPOINTED, THESE INDIGENTS WILL BE DEPRIVED, JUST AS
SURELY AS MANESS' CLIENT WOULD HAVE BEEN HAD HE NOT BEEN ADVISED BY
MANESS, OF THE OPPORTUNITY TO DECIDE WHETHER TO ASSERT THEIR
CONSTITUTIONAL PRIVILEGE.  "TO HOLD OTHERWISE WOULD DENY THE
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION THE MEANS OF ITS
OWN IMPLEMENTATION."  ANTE, AT 468. 

I AM UNWILLING TO GO THAT FAR TOWARD RECOGNIZING AN UNQUALIFIED
RIGHT TO APPOINTED COUNSEL IN CIVIL PROCEEDINGS IN A CASE THAT DOES NOT
DEMAND IT.  BUT I CONCUR IN THE COURT'S JUDGMENT UPON A WHOLLY
DIFFERENT GROUND. 

MORE THAN 40 YEARS AGO THE COURT RECOGNIZED A DUE PROCESS RIGHT TO
RETAINED COUNSEL IN CIVIL PROCEEDINGS.  "IF IN ANY CASE, CIVIL OR
CRIMINAL, A STATE OR FEDERAL COURT WERE ARBITRARILY TO REFUSE TO HEAR A
PARTY BY COUNSEL, EMPLOYED BY AND APPEARING FOR HIM, IT REASONABLY MAY
NOT BE DOUBTED THAT SUCH A REFUSAL WOULD BE A DENIAL OF A HEARING, AND,
THEREFORE, OF DUE PROCESS IN THE CONSTITUTIONAL SENSE."  POWELL V.
ALABAMA, 287 U.S. 45, 69.  IT REQUIRES NO EXPANSION OF THIS WELL
ESTABLISHED PRINCIPLE TO HOLD THAT JUST AS A STATE COURT MAY NOT
ARBITRARILY PROHIBIT RETAINED COUNSEL'S PRESENCE IN A COURTROOM, SO TOO
IT MAY NOT ARBITRARILY PROHIBIT OR PUNISH GOOD-FAITH ADVICE GIVEN BY
RETAINED COUNSEL.  THE "RIGHT TO BE HEARD BY COUNSEL"  IS FRUSTRATED
EQUALLY BY DENYING THE RIGHT TO HAVE COUNSEL PRESENT DURING TRIAL AS BY
PREVENTING COUNSEL, ONCE IN THE COURTROOM, FROM GIVING GOOD-FAITH
PROFESSIONAL ADVICE TO HIS CLIENT. 

THE RIGHT TO BE ADVISED BY RETAINED COUNSEL IN A CIVIL PROCEEDING
DOES NOT, OF COURSE, GUARANTEE A LAWYER ABSOLUTE IMMUNITY FOR ADVICE HE
GIVES TO HIS CLIENT.  WHETHER A CONTEMPT CITATION CONSTITUTES AN
ARBITRARY INTERFERENCE WITH THE CONSTITUTIONALLY PROTECTED ATTORNEY
CLIENT RELATIONSHIP DEPENDS ON BOTH THE TENOR OF THE ADVICE AND THE
CIRCUMSTANCES UNDER WHICH IT IS GIVEN.  IT DOES NOT DEPEND SOLELY ON
THE NATURE OF THE LEGAL ISSUE INVOLVED.  ADVICE TO INVOKE A STATE
RECOGNIZED TESTIMONIAL PRIVELEGE, FOR EXAMPLE, MAY BE JUST AS ESSENTIAL
TO THE DISCHARGE OF A LAWYER'S RESPONSIBILITY TO HIS CLIENT AS WAS
MANESS' ADVICE TO INVOKE THE CONSTITUTIONAL PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION. 

THE COURT'S OPINION AND MR. JUSTICE WHITE'S CONCURRING OPINION FULLY
EXPLAIN THE CIRCUMSTANCES THAT IN THIS CASE JUSTIFIED MANESS' ADVICE TO
HIS CLIENT TO REFUSE TO COMPLY WITH THE TRIAL JUDGE'S ORDER TO PRODUCE
THE SUBPOENAED MATERIAL.  UNDER THESE CIRCUMSTANCES MANESS DID NO MORE
THAN PROPERLY PERFORM THE CONVENTIONAL SERVICE OF A LAWYER.  TO PUNISH
HIM FOR PERFORMING HIS PROFESSIONAL DUTY IN GOOD FAITH WOULD BE AN
ARBITRARY INTERFERENCE WITH HIS CLIENT'S RIGHT TO THE PRESENCE AND
ADVICE OF RETAINED COUNSEL--AND THUS A DENIAL OF DUE PROCESS OF LAW. 

MR. JUSTICE WHITE, CONCURRING IN THE RESULT. 

THE ISSUE IN THIS CASE IS NOT SIMPLY WHETHER A LAWYER MAY BE HELD IN
CONTEMPT FOR ADVISING HIS CLIENT TO PLEAD THE FIFTH AMENDMENT. 
OBVIOUSLY, PUT THAT WAY, HE MAY NOT.  THE ISSUE IS WHETHER, AFTER HIS
CLIENT'S SELF-INCRIMINATION OBJECTION TO TESTIFYING OR COMPLYING WITH A
SUBPOENA IS OVERRULED AND HIS CLIENT IS ORDERED TO ANSWER, THE LAWYER
IS IN CONTEMPT OF COURT WHEN HE ADVISES THE CLIENT NOT TO OBEY THE
COURT'S ORDER.  I AGREE WITH THE COURT'S JUDGMENT THAT THE CONTEMPT
JUDGMENT AGAINST THE LAWYER CANNOT STAND IN THE CIRCUMSTANCES OF THIS
CASE. 

ALTHOUGH THE PROCEEDING IN WHICH HE IS CALLED IS NOT CRIMINAL, IT IS
ESTABLISHED THAT A WITNESS MAY NOT BE REQUIRED TO ANSWER A QUESTION IF
THERE IS SOME RATIONAL BASIS FOR BELIEVING THAT IT WILL INCRIMINATE
HIM, AT LEAST WITHOUT AT THAT TIME BEING ASSURED THAT NEITHER IT NOR
ITS FRUITS MAY BE USED AGAINST HIM.  THE OBJECT OF THE AMENDMENT "WAS
TO INSURE THAT A PERSON SHOULD NOT BE COMPELLED, WHEN ACTING AS A
WITNESS IN ANY INVESTIGATION, TO GIVE TESTIMONY WHICH MIGHT TEND TO
SHOW THAT HE HIMSELF HAD COMMITTED A CRIME."  COUNSELMAN V. HITCHCOCK,
142 U.S. 547, 562 (1892); MCCARTHY V. ARNDSTEIN, 266 U.S. 34, 40
(1924); LEFKOWITZ V. TURLEY, 414 U.S. 70, 77 (1973).  IN ANY OF THESE
NONCRIMINAL CONTEXTS, THEREFORE, "A WITNESS PROTECTED BY THE PRIVILEGE
MAY RIGHTFULLY REFUSE TO ANSWER UNLESS AND UNTIL HE IS PROTECTED AT
LEAST AGAINST THE USE OF HIS COMPELLED ANSWERS AND EVIDENCE DERIVED
THEREFROM IN ANY SUBSEQUENT CRIMINAL CASE IN WHICH HE IS A DEFENDANT." 
ID., AT 78; KASTIGAR V. UNITED STATES, 406 U.S. 441 (1972). 

IF THE WITNESS, HAVING OBJECTED ON FIFTH AMENDMENT GROUNDS, IS
GRANTED IMMUNITY AGAINST THE USE OF HIS TESTIMONY AND ITS FRUITS IN A
LATER PROSECUTION, OUR CASES HOLD THAT THE DANGER OF SELF-INCRIMINATION
IS REMOVED AND THE PRIVILEGE WHOLLY SATISFIED.  THE PURPOSE OF THE
RELEVANT PART OF THE FIFTH AMENDMENT IS TO PREVENT COMPELLED SELF
INCRIMINATION, NOT TO PROTECT PRIVATE INFORMATION.  TESTIMONY DEMANDED
OF A WITNESS MAY BE VERY PRIVATE INDEED, BUT UNLESS IT IS INCRIMINATING
AND PROTECTED BY THE AMENDMENT OR UNLESS PROTECTED BY ONE OF THE
EVIDENTIARY PRIVILEGES, IT MUST BE DISCLOSED.  WHEN THE OBJECTION
INTERPOSED IS THAT OF SELF-INCRIMINATION, A GRANT OF IMMUNITY REMOVES
ANY GROUND FOR A REFUSAL TO ANSWER AND FOR A GOOD-FAITH SUGGESTION BY
COUNSEL THAT THE CLIENT NOT ANSWER, HOWEVER PRIVATE HIS INFORMATION MAY
BE.  SHOULD THE ATTORNEY THEN ADVISE HIS CLIENT NOT TO ANSWER, THERE
SHOULD BE NO BARRIER TO HIS CONVICTION FOR CONTEMPT. 

BUT WHAT OF THE CASE, SUCH AS WE HAVE HERE, WHERE THE CLAIM OF
PRIVILEGE IS OVERRULED BECAUSE THE WITNESS HAS NOT CARRIED HIS BURDEN
OF DEMONSTRATING TO THE SATISFACTION OF THE TRIAL JUDGE THAT THE SOUGHT
AFTER ANSWER MAY INCRIMINATE HIM AND THERE IS APPARENTLY NO OCCASION
FOR AN ASSURANCE OF IMMUNITY?  IT SEEMS TO ME THAT IN SUCH EVENT THE
WITNESS IS NEVERTHELESS PROTECTED BY A CONSTITUTIONALLY IMPOSED USE
IMMUNITY IF HE ANSWERS IN RESPONSE TO THE ORDER AND UNDER THREAT OF
CONTEMPT.  IF, CONTRARY TO THE EXPECTATIONS OF THE JUDGE BUT CONSISTENT
WITH THE CLAIM OF THE WITNESS AND HIS LAWYER, THE STATE LATER FINDS THE
ANSWER OR ITS FRUITS INCRIMINATING AND OFFERS EITHER AGAINST THE
WITNESS IN A CRIMINAL PROSECUTION, THE WITNESS HAS A VALID OBJECTION TO
THE EVIDENCE ON THE GROUND THAT HE WAS COERCED BY A COURT ORDER TO
REVEAL IT AND THAT IT IS THEREFORE COMPELLED SELF-INCRIMINATION BARRED
FROM USE BY THE FIFTH AMENDMENT. 

IN GARRITY V. NEW JERSEY, 385 U.S. 493 (1967), THE STATE ATTORNEY
GENERAL SUMMONED POLICE OFFICERS TO AN INQUIRY INTO THE FIXING OF
TRAFFIC TICKETS.  FOLLOWING WARNINGS THAT IF THEY DID NOT ANSWER THEY
WOULD BE REMOVED FROM OFFICE AND THAT ANYTHING THEY SAID MIGHT BE USED
AGAINST THEM IN A CRIMINAL PROCEEDING, THEY WERE INTERROGATED ABOUT THE
CONDUCT OF THEIR OFFICIAL DUTIES.  NO IMMUNITY OF ANY KIND WAS OFFERED
OR AVAILABLE UNDER STATE LAW.  THE QUESTIONS WERE ANSWERED AND THE
ANSWERS LATER USED OVER THEIR OBJECTIONS IN A CONSPIRACY PROSECUTION OF
THE OFFICERS.  THE COURT HELD THAT "THE PROTECTION OF THE INDIVIDUAL
UNDER THE FOURTEENTH AMENDMENT AGAINST COERCED STATEMENTS PROHIBITS USE
IN SUBSEQUENT CRIMINAL PROCEEDINGS OF STATEMENTS OBTAINED UNDER THREAT
OF REMOVAL FROM OFFICE, AND THAT IT EXTENDS TO ALL, WHETHER THEY ARE
POLICEMEN OR OTHER MEMBERS OF OUR BODY POLITIC."  ID., AT 500. 
LEFKOWITZ V. TURLEY, SUPRA, REAFFIRMED THIS HOLDING, 414 U.S., AT 79 -
80, AND DECLARED THAT ABSENT FORMAL IMMUNITY PROTECTIONS, "IF HE IS
NEVERTHELESS COMPELLED TO ANSWER, HIS ANSWERS ARE INADMISSIBLE AGAINST
HIM IN A LATER CRIMINAL PROSECUTION.  BRAM V. UNITED STATES, (168 U.S.
532 (1897)); BOYD V. UNITED STATES, (116 U.S. 616 (1886))."  ID., AT
78. 

GIVEN THIS ULTIMATE IMMUNITY FROM BEING INCRIMINATED BY HIS
RESPONSES TO HIS INTERROGATION, A REFUSAL TO ANSWER SHOULD SUBJECT THE
WITNESS TO CONTEMPT WITHOUT THE NECESSITY OF APPELLATE REVIEW EXTENDING
TO THE MERITS OF THE FIFTH AMEMDMENT CLAIM.  IF THE STATE MAKES
SUFFICIENTLY CLEAR THAT IT RECOGNIZES THIS ESTABLISHED RULE, THE
ATTORNEY WOULD HAVE NO BUSINESS ADVISING HIS CLIENT TO DISOBEY THE
COURT'S ORDER TO ANSWER.  BUT THE POSSIBILITY, MUCH LESS THE REALITY,
OF A COMPELLED ANSWER, ALONG WITH ITS FRUITS, BEING IMMUNIZED FROM
LATER USE WAS HARDLY BROUGHT HOME TO THIS PETITIONER OR TO HIS CLIENT. 
HAD THE CLIENT BEEN GRANTED IMMUNITY OR HAD HE BEEN ADVISED OF ITS
FUNCTIONAL EQUIVALENT--THAT ALTHOUGH HE WAS NOT IMMUNE FROM CRIMINAL
PROSECUTION WITH RESPECT TO THE SUBJECT MATTER OF HIS ANSWERS, NEITHER
HIS ANSWER NOR ITS FRUITS COULD LATER BE USED AGAINST HIM, KASTIGAR V.
UNITED STATES, SUPRA--IT MAY WELL HAVE BEEN THAT HIS CHOICE, AND THE
ADVICE OF PETITIONER, WOULD HAVE BEEN QUITE DIFFERENT. 

AS THE MATTER STANDS NOTHING OF THE SORT WAS CLEAR IN THIS CASE TO
EITHER THE PETITIONER OR TO HIS CLIENT.  AS FAR AS CAN BE ASCERTAINED
FROM THIS RECORD, THE TRIAL JUDGE INSISTED THAT PETITIONER'S CLIENT
ANSWER WITHOUT ANY ASSURANCE  THEN THAT THE FORTHCOMING ANSWERS COULD
NOT BE USED TO CONVICT HIM IN THE EVENT THAT THE JUDGE WAS WRONG ABOUT
THEIR NOT BEING INCRIMINATING.  I THEREFORE AGREE THAT IT WAS ERROR TO
HOLD THE ATTORNEY IN CONTEMPT FOR ADVISING HIS CLIENT NOT TO ANSWER. 
CF. LEFKOWITZ V. TURKEY, SUPRA; GARDNER V. BRODERICK, 392 U.S. 273
(1968); SANITATION MEN V. SANITATION COMM'R, 392 U.S. 280 (1968).  AT
THE VERY LEAST, IF THERE WERE STILL A LIVE CONTROVERSY BETWEEN THE
STATE AND PETITIONER'S CLIENT, WHICH APPARENTLY THERE IS NOT, THE
CONTEMPT JUDGMENT WOULD BE VACATED AND THE CLIENT WOULD BE GIVEN
ANOTHER OPPORTUNITY TO ANSWER, HAVING IN MIND THE CONTROLLING
CONSTITUTIONAL PRINCIPLES.  MURPHY V. WATERFRONT COMM'N, 378 U.S. 52,
80 (1964). 

WILLIAM F. WALSH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE STUART M. NELKIN AND MICHAEL ANTHONY MANESS PRO SE. 

JOE B. DIBRELL ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WERE JOHN L. HILL, ATTORNEY GENERAL OF TEXAS, LARRY F. YORK,
FIRST ASSISTANT ATTORNEY GENERAL, AND LONNY F. ZWIENER, ASSISTANT
ATTORNEY GENERAL. 
..END :













COUSINS V. WIGODA, 419 U.S. 477 


       COUSINS ET AL. V. WIGODA ET AL.

        CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIRST

DISTRICT

        NO. 73 - 1106.  ARGUED NOVEMBER 11, 1974--, DECIDED JANUARY

           15, 1975; (14 ILL. APP. 3D 460, 302 N.E. 2D 614,

           REVERSED.) 


    PETITIONERS (COUSINS DELEGATES) CHALLENGED BEFORE THE NATIONAL

  DEMOCRATIC PARTY CREDENTIALS COMMITTEE, AS VIOLATIVE OF PARTY

  GUIDE-LINES, THE SEATING OF RESPONDENTS (WIGODA DELEGATES) WHO

  HAD BEEN ELECTED FROM CHICAGO DISTRICTS AT THE MARCH 1972

  ILLINOIS PRIMARY ELECTION AS DELEGATES TO THE 1972 DEMOCRATIC

  NATIONAL CONVENTION TO BE HELD IN JULY 1972.  THE COMMITTEE

  DECIDED THAT THE COUSINS DELEGATES SHOULD BE SEATED INSTEAD OF

  THE WIGODA DELEGATES, WHO, ON JULY 8, 1972, TWO DAYS BEFORE THE

  CONVENTION OPENED, WERE GRANTED AN INJUNCTION BY THE ILLINOIS

  CIRCUIT COURT ENJOINING THE COUSINS GROUP FROM ACTING AS

DELEGATES AT THE CONVENTION.  THE COUSINS DELEGATES NEVERTHELESS

  WERE SEATED BY THE CONVENTION AND FUNCTIONED AS DELEGATES.  THE

  ILLINOIS APPELLATE COURT AFFIRMED, HOLDING THAT "THE RIGHT TO SIT

  AS A DELEGATE REPRESENTING ILLINOIS AT THE NATIONAL NOMINATING

  CONVENTION IS GOVERNED EXCLUSIVELY BY THE ILLINOIS ELECTION

  CODE,"AND THAT THE "INTEREST OF THE STATE IN PROTECTING THE

  EFFECTIVE RIGHT TO PARTICIPATE IN PRIMARIES IS SUPERIOR TO

  WHATEVER OTHER INTERESTS THE PARTY ITSELF MIGHT WISH TO

  PROTECT."  IN ANOTHER SUIT, WHICH HAD BEEN BROUGHT IN THE

  DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, ONE KEANE, A WIGODA

  DELEGATE, CHALLENGED THE CONSTITUTIONALITY OF THE PARTY

  GUIDELINES A ALLEGEDLY VIOLATED IN THE WIGODA DELEGATE'S

  SELECTION.  THE DISTRICT COURT SUSTAINED ONE OF THE CHALLENGED

GUIDELINES AND DISMISSED KEANE'S SUIT WHILE DENYING THE PARTY'S

  COUNTERCLAIM FOR AN INJUNCTION AGAINST THE WIGODA DELEGATES'

  PROCEEDING WITH THE STATE-COURT ACTION.  THE COURT OF APPEALS ON

  JULY 5 AFFIRMED THE DISMISSAL BUT GRANTED THE COUNTERCLAIM.  THIS

  COURT IN A PER CURIAM OPINION STAYED THE JUDGMENT OF THE COURT OF

  APPEALS AND LATER, HAVING GRANTED KEANE'S PETITION FOR

  CERTIORARI, VACATED THE COURT OF APPEALS'  JUDGMENT AND REMANDED

  FOR A DETERMINATION OF MOOTNESS.  THE COURT OF APPEALS THEREAFTER

  HELD THE CASE MOOT INSOFAR AS IT INVOLVED THE SEATING OF

  DELEGATES AT THE COMPLETED CONVENTION AND AFFIRMED DISMISSAL OF

  THE KEANE SUIT.  IN ADDITION TO THEIR ARGUMENTS ON THE MERITS,

  PETITIONERS CONTEND THAT LANGUAGE IN THE PER CURIAM ESTABLISHED

  THE CONVENTION'S RIGHT TO DECIDE THE CHICAGO CREDENTIALS CONTEST,

  AND THAT THIS COURT'S ACTION IN STAYING, BUT NOT VACATING, THE

  COURT OF APPEALS' JUDGMENT LEFT THAT JUDGMENT AS A RES JUDICATA

  BAR TO THE INJUNCTION.  HELD: 

     1.  THIS COURT'S PER CURIAM UNQUALIFIEDLY SUSPENDED THE

  OPERATIVE EFFECTS OF THE COURT OF APPEALS JUDGMENT WITHOUT

  RESOLVING THE MERITS OF THE CONTROVERSY; AND PETITIONERS' RES

  JUDICATA CONTENTION IS NOT OPEN FOR CONSIDERATION, NOT HAVING

  BEEN PLEADED AND PROVED IN THE CIRCUIT COURT AS REQUIRED BY STATE

  LAW.  PP. 485 - 487. 

     2.  IN THE SELECTION OF CANDIDATES FOR NATIONAL OFFICE A

  NATIONAL PARTY CONVENTION SERVES THE PERVASIVE NATIONAL INTEREST,

  WHICH IS PARAMOUNT TO ANY INTEREST OF A STATE IN PROTECTING THE

  INTEGRITY OF ITS ELECTORAL PROCESS, AND THE CIRCUIT COURT ERRED

  IN ISSUING AN INJUNCITON THAT ABRIDGED THE ASSOCIATIONAL RIGHTS

  OF PETITIONERS AND THEIR PARTY AND THE PARTY'S RIGHT TO DETERMINE

THE COMPOSITION OF ITS NATIONAL CONVENTION IN ACCORDANCE WITH

  PARTY STANDARDS.  PP. 487 - 491. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  REHNQUIST,

  J., FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH BURGER,

  C.J., AND STEWART, J., JOINED, POST, P. 491.  POWELL, J., FILED

  AN OPINION CONCURRING IN PART AND DISSENTING IN PART, POST, P.

  496. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

AT THE MARCH 1972 ILLINOIS PRIMARY ELECTION, CHICAGO'S DEMOCRATIC
VOTERS ELECTED THE 59 RESPONDENTS (WIGODA DELEGATES) AS DELEGATES TO
THE 1972 DEMOCRATIC NATIONAL CONVENTION TO BE HELD IN JULY 1972 IN
MIAMI, FLORIDA.  SOME OF THE 59 PETITIONERS (COUSINS DELEGATES)
CHALLENGED THE SEATING OF THE WIGODA DELEGATES BEFORE THE CREDENTIALS
COMMITTEE OF THE NATIONAL DEMOCRATIC PARTY ON THE GROUND, AMONG OTHERS,
THAT THE SLATE-MAKING PROCEDURES UNDER WHICH THE WIGODA DELEGATES WERE
SELECTED VIOLATED PARTY GUIDELINES INCORPORATED IN THE CALL OF THE
CONVENTION.  ON JUNE 30, 1972, THE CREDENTIALS COMMITTEE SUSTAINED THE
FINDINGS AND REPORT OF A HEARING OFFICER THAT THE WIGODA DELEGATES HAD
BEEN CHOSEN IN VIOLATION OF THE GUIDELINES, /1/  AND ALSO ADOPTED THE
HEARING OFFICER'S RECOMMENDATION THAT THE WIGODA DELEGATES BE UNSEATED
AND THE COUSINS DELEGATES (WHO HAD BEEN CHOSEN IN JUNE AT PRIVATE
CAUCUSES IN CHICAGO) BE SEATED IN THEIR STEAD. 

ON JULY 8, 1972, TWO DAYS BEFORE THE CONVENTION OPENED, THE WIGODA
DELEGATES OBTAINED FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, AN
INJUNCTION THAT ENJOINED EACH OF THE 59 PETITIONERS "FROM ACTING OR
PURPORTING TO ACT AS A DELEGATE TO THE DEMOCRATIC NATIONAL
CONVENTION...(AND) FROM PERFORMING THE FUNCTIONS OF DELEGATES...(AND)
FROM RECEIVING OR ACCEPTING ANY CREDENTIALS, BADGES OR OTHER INDICIA OF
DELEGATE STATUS...."  /2/  NEVERTHELESS WHEN THE CONVENTION ON JULY 10
ADOPTED THE CREDENTIALS COMMITTEE'S RECOMMENDATION AND SEATED THE
COUSINS DELEGATES, THEY TOOK THEIR SEATS AND PARTICIPATED FULLY AS
DELEGATES THROUGHOUT THE CONVENTION.  IN CONSEQUENCE, PROCEEDINGS TO
ADJUDGE PETITIONERS IN CRIMINAL CONTEMPT OF THE JULY 8 INJUNCTION ARE
PENDING IN THE CIRCUIT COURT AWAITING THIS COURT'S DECISION IN THIS
CASE. 

THE ILLINOIS APPELLATE COURT AFFIRMED THE INJUNCTION, 14 ILL. APP.
3D 460, 302 N.E. 2D 614 (1973), /3/  AND THE SUPREME COURT OF ILLINOIS,
WITHOUT OPINION, ON NOVEMBER 29, 1973, DENIED LEAVE TO APPEAL.  THE
APPELLATE COURT HELD THAT "(THE RIGHT TO SIT AS A DELEGATE REPRESENTING
ILLINOIS AT THE NATIONAL NOMINATING CONVENTION IS GOVERNED EXCLUSIVELY
BY THE ILLINOIS ELECTION CODE," 14 ILL. APP. 3D, AT 472, 302 N.E. 2D,
AT 626, AND REJECTED THE COUSINS DELEGATES' CONTENTION THAT THE
INJUNCTION ATTEMPTING TO ENFORCE THAT CODE, BY PREVENTING THEM FROM
PARTICIPATING AS DELEGATES AT THE CONVENTION, VIOLATED THEIR RIGHT, AND
THE RIGHT OF THE NATIONAL DEMOCRATIC PARTY, TO FREEDOM OF POLITICAL
ACTIVITY AND ASSOCIATION ASSURED THEM UNDER THE FIRST AND FOURTEENTH
AMENDMENTS.  THE APPELLATE COURT STATED: 

"(THE PURPOSES AND GUIDELINES FOR REFORM ADOPTED BY THE DEMOCRATIC
NATIONAL PARTY IN ITS CALL FOR THE 1972 DEMOCRATIC NATIONAL
CONVENTION...IN NO WAY TAKE PRECEDENCE IN THE STATE OF ILLINOIS OVER
THE ILLINOIS ELECTION CODE (ILL. REV. STAT. 1971, CH. 46, 7 - 1 ET
SEQ.).  THE OPENING SECTION OF ARTICLE 7 OF THE ELECTION CODE, WHICH
DEALS WITH THE MAKING OF NOMINATIONS BY POLITICAL PARTIES (7 - 1), IS
MOST CLEAR WHEN IN DISCUSSING THE SELECTION OF DELEGATES TO NATIONAL
NOMINATING CONVENTONS, IT STATES:  "'...(DELEGATES AND ALTERNATE
DELEGATES TO NATIONAL NOMINATING CONVENTIONS BY ALL POLITICAL
PARTIES....SHALL BE MADE IN THE MANNER PROVIDED IN THIS ARTICLE 7, AND
NOT OTHERWISE.'"  ID., AT 471, 302 N.E. 2D, AT 625.  "(THE LAW OF THE
STATE IS SUPREME AND PARTY RULES TO THE CONTRARY ARE OF NO EFFECT...." 
ID., AT 475, 302 N.E. 2D, AT 627. 

     "THE INTEREST OF THE STATE IN PROTECTING THE EFFECTIVE RIGHT
TO

  PARTICIPATE IN PRIMARIES IS SUPERIOR TO WHATEVER OTHER INTERESTS

  THE PARTY ITSELF MIGHT WISH TO PROTECT...."  ID., AT 477, 302

  N.E. 2D, AT 629. 

     "SINCE (RESPONDENTS) WERE ADMITTEDLY ELECTED TO THE POSITION
OF

  DELEGATES TO THE 1972 DEMOCRATIC NATIONAL CONVENTION BY OPERATION

  OF THE ELECTION CODE, AN ILLINOIS STATUTE, THIS COURT FINDS THE

  TRIAL COURT'S INJUNCTIONS DID NOT ABROGATE (PETITIONERS')

  FUNDAMENTAL CONSTITUTINAL RIGHTS OF FREE POLITICAL

  ASSOCIATION...."  ID., AT 479, 302 N.E. 2D, AT 631. 

WE GRANTED CERTIORARI TO DECIDE THE IMPORTANT QUESTION PRESENTED
WHETHER THE APPELLATE COURT WAS CORRECT IN ACCORDING PRIMACY TO STATE
LAW OVER THE NATIONAL POLITICAL PARTY'S RULES IN THE DETERMINATION OF
THE QUALIFICATIONS AND ELIGIBILITY OF DELEGATES TO THE PARTY'S NATIONAL
CONVENTION.  415 U.S. 956 (1974).  /4/  WE REVERSE. 

     I 

THERE IS A THRESHOLD QUESTION TO BE DECIDED BEFORE WE DISCUSS THE
MERITS OF THE CONSTITUTIONAL ISSUE.  DURING JUNE AND JULY 1972 THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AND THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT TWICE CONSIDERED AN ACTION BROUGHT
BY ONE OF THE WIGODA DELEGATES, THOMAS E. KEANE, AGAINST THE NATIONAL
DEMOCRATIC PARTY.  THAT ACTION CHALLENGED THE CONSTITUTIONALITY OF THE
PARTY GUIDELINES ALLEGEDLY VIOLATED IN THE SELECTION OF THE WIGODA
DELEGATES.  THE COUSINS DELEGATES INTERVENED AND THE PARTY
COUNTERCLAIMED FOR AN INJUNCTION ENJOINING THE WIGODA DELEGATES FROM
PROCEEDING WITH THE STATE-COURT ACTION.  THE CASE WAS INITIALLY
DISMISSED ON APPEAL BECAUSE THE CREDENTIALS COMMITTEE HAD NOT YET
DECIDED THE PETITIONERS' CHALLENGE, KEANE V. NATIONAL DEMOCRATIC PARTY,
NO. 1010 - 72 (DC JUNE 19, 1972); KEANE V. NATIONAL DEMOCRATIC PARTY,
NO. 72 - 1562 (DC CIR. JUNE 20, 1972).  AFTER THE CREDENTIALS COMMITTEE
ANNOUNCED ITS ADOPTION OF THE HEARING OFFICER'S FINDINGS AND REPORT,
THE SUIT PROCEEDED.  THE DISTRICT COURT SUSTAINED THE CONSTITUTIONALITY
OF GUIDELINE C-6, SEE N. 1, AND DISMISSED KEANE'S SUIT, WHILE DENYING
THE COUNTERCLAIM.  THE COURT OF APPEALS, ON JULY 5, AFFIRMED THE
DISMISSAL BUT GRANTED THE COUNTERCLAIM DIRECTING THE ENTRY OF AN ORDER
ENJOINING THE WIGODA DELEGATES FROM PROCEEDING WITH THE CIRCUIT COURT
SUIT.  BROWN V. O'BRIEN, 152 U.S. APP. D.C. 157, 469 F.2D 563.  THIS
COURT, HOWEVER, AT A SPECIAL TERM ON JULY 7, STAYED THE JUDGMENT OF THE
COURT OF APPEALS, 409 U.S. 1.  ON OCTOBER 10, 1972, WE GRANTED KEANE'S
PETITION FOR CERTIORARI, VACATED THE JUDGMENT OF THE COURT OF APPEALS,
AND REMANDED FOR A DETERMINATION OF MOOTNESS.  409 U.S. 816.  THE COURT
OF APPEALS, ON FEBRUARY 16, 1973, HELD THE CASE MOOT INSOFAR AS IT
CONCERNED SEATING OF DELEGATES AT THE JULY CONVENTION, FOUND NO BASIS
FOR RELIEF AS TO ANY OTHER MATTER, AND ENTERED A JUDGMENT AFFIRMING THE
DISTRICT COURT'S ORDER OF JULY 3 DISMISSING KEANE'S SUIT, 155 U.S. APP.
D.C. 18, 475 F.2D 1287. 

BASED UPON THESE EVENTS, PETITIONERS ARGUE THAT THE ILLINOIS CIRCUIT
COURT WAS WITHOUT JURISDICTION TO ENTER ITS JULY 8 INJUNCTION
NOTWITHSTANDING THIS COURT'S JULY 7 STAY OF THE COURT OF APPEALS'
JUDGMENT.  THE ARGUMENT RELIES UPON THE REFERENCE IN THE COURT'S PER
CURIAM OPINION SUPPORTING THE STAY TO "THE LARGE PUBLIC INTEREST IN
ALLOWING THE POLITICAL PROCESSES TO FUNCTION FREE FROM JUDICIAL
SUPERVISION," 409 U.S., AT 5, WHICH, PETITIONERS ARGUE, "ESTABLISHED
THE RIGHT, IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE, OF THE 1972
DEMOCRATIC NATIONAL CONVENTION TO DECIDE THE CHICAGO CREDENTIALS
CONTEST."  BRIEF FOR PETITIONERS 20.  THE ARGUMENT IS WITHOUT MERIT. 
THE PER CURIAM DID NOT DECIDE THE QUESTION BEFORE US IN THIS CASE.  THE
STAY ORDER, IN TERMS, UNAMBIGUOUSLY SUSPENDED THE OPERATIVE EFFECT OF
THE COURT OF APPEALS' JUDGMENT WITHOUT QUALIFICATION AND IN ITS
ENTIRETY, AND NOTHING IN THE QUOTED EXCERPT FROM THE PER CURIAM OPINION
IN ANY WISE QUALIFIED THAT EFFECT.  /5/  WE AGREE WITH THE ILLINOIS
APPELLATE COURT, THEREFORE, THAT THE STAY ORDER "COMPLETELY FROZE THE
ORDER OF THE COURT OF APPEALS, INCLUDING THE INJUNCTION ORDER DIRECTED
TO THE CIRCUIT COURT OF ILLINOIS, THERBY ALLOWING THE CIRCUIT COURT TO
PROCEED."  14 ILL. APP. 3D, AT 468, 302 N.E. 2D, AT 622 - 623. 

PETITIONERS ARGUE FURTHER THAT IN ANY EVENT THE STAY ORDER "DID NOT
ALTER THE BINDING COLLATERAL ESTOPPEL AND RES JUDICATA EFFECT OF THAT
(COURT OF APPEALS) JUDGMENT SO AS TO PERMIT COLLATERAL ATTACK IN THE
ILLINOIS STATE COURTS."  BRIEF FOR PETITIONERS 28.  WE NEED NOT ADDRESS
THE MERITS OF THAT ARGUMENT.  THE ILLINOIS APPELLATE COURT REJECTED IT
ON THE GROUND THAT THE RESJUDICATA DEFENSE HAD NOT BEE PLEADED AND
PROVED IN THE CIRCUIT COURT AS REQUIRED BY ILLINOIS LAW ESTABLISHED IN
SVALINA V. SARAVANA, 341 ILL. 236, 173 N.E. 281 (1930).  14 ILL. APP.
3D, AT 469, 302 N.E. 2D, AT 6239 /6/  WE HAVE NO BASIS FOR DISAGREEMENT
WITH THE HOLDING OF THE APPELLATE COURT "THAT THE (PETITIONERS) NEITHER
FORMALLY PLEADED NOR ATTEMPTED TO PROVE THEIR CLAIM OF RES JUDICATA
BASED ON THE DECISION OF THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT."  IBID.  /7/  THIS CONSTITUTES AN ADEQUATE STATE
GROUND THAT FORECLOSES ANY JURISDICTION THAT WE MIGHT POSSESS TO REVIEW
THE MERITS OF THE RES JUDICATA DEFENSE.  SEE, E.G., LOUISVILLE & N.R.
CO. V. WOODFORD, 234 U.S. 46 (1914).  ACCORDINGLY, WE TURN TO
CONSIDERATION OF THE MERITS OF THE CONSTITUTIONAL QUESTION. 

        II 

THE NATIONAL DEMOCRATIC PARTY AND ITS ADHERENTS ENJOY A
CONSTITUTIONALLY PROTECTED RIGHT OF POLITICAL ASSOCIATION.  "THERE CAN
NO LONGER BE ANY DOUBT THAT FREEDOM TO ASSOCIATE WITH OTHERS FOR THE
COMMON ADVANCEMENT OF POLITICAL BELIEFS AND IDEAS IS A FORM OF 'ORDERLY
GROUP ACTIVITY' PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS....
THE RIGHT TO ASSOCIATE WITH THE POLITICAL PARTY OF ONE'S CHOICE IS AN
INTEGRAL PART OF THIS BASIC CONSTITUTIONAL FREEDOM."  KUSPER V.
PONTIKES, 414 U.S. 51, 56 - 57 (1973).  "AND OF COURSE THIS FREEDOM
PROTECTED AGAINST FEDERAL ENCROACHMENT BY THE FIRST AMENDMENT IS
ENTITLED UNDER THE FOURTEENTH AMENDMENT TO THE SAME PROTECTION FROM
INFRINGEMENT BY THE STATES."  WILLIAMS V. RHODES, 393 U.S. 23, 30 - 31
(1968).  MOREOVER, "(ANY INTERFERENCE WITH THE FREEDOM OF A PARTY IS
SIMULTANEOUSLY AN INTERFERENCE WITH THE FREEDOM OF ITS ADHERENTS." 
SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 250 (1957); SEE NAACP V. BUTTON,
371 U.S. 415, 431 (1963). 

PETITIONERS RELY UPON THESE PRINCIPLES AND CONTEND THAT, SINCE THE
JULY 8 CIRCUIT COURT INJUNCTION WAS FASHIONED TO EFFECTUATE STATE LAW
BY BARRING THEM FROM SERVING AS DELEGATES AT THEIR PARTY'S NATIONAL
CONVENTION, THE INJUNCTION CONSTITUTED AN UNCONSTITUTIONAL "SIGNIFICANT
INTERFERENCE"  WITH PROTECTED RIGHTS OF POLITICAL ASSOCIATION.  BATES
V. LITTLE ROCK, 361 U.S. 516, 523 (1960); SEE ALSO KUSPER V. PONTIKES,
SUPRA, AT 58. 

THE ILLINOIS APPELATE COURT CONCEDED THAT PETITIONERS AND THE PARTY
ENJOYED "FUNDAMENTAL CONSTITUTIONAL RIGHTS OF FREE POLITICAL
ASSOCIATION."  14 ILL. APP. 3D, AT 470, 302 N.E. 2D, AT 624.  THE
APPELLATE COURT JUSTIFIED THE INJUNCTION, HOWEVER, ON THE GROUND THAT
THE "INTEREST OF THE STATE IN PROTECTING THE EFFECTIVE RIGHT TO
PARTICIPATE IN PRIMARIES IS SUPERIOR TO WHATEVER OTHER INTERESTS THE
PARTY ITSELF MIGHT WISH TO PROTECT."  ID., AT 477, 302 N.E. 2D, AT
629.  IN OTHER WORDS, THE APPELLATE COURT IDENTIFIED AS THE STATE'S
LEGITIMATE INTEREST THE PROTECTION OF VOTES CAST AT THE PRIMARY FROM
THE IMPAIRMENT THAT WOULD RESULT FROM STRIPPING THE RESPONDENTS OF
THEIR ELECTED-DELEGATE STATUS. 

WE OBSERVE AT THE OUTSET THAT PETITIONERS' COMPLIANCE WITH THE
INJUNCTION WOULD NOT HAVE ASSURED EFFECTUATION OF THE STATE OBJECTIVE
TO SEAT RESPONDENTS AT THE CONVENTION.  THE CONVENTION WAS UNDER NO
OBLIGATION TO SEAT THE RESPONDENTS BUT WAS FREE, AS RESPONDENTS
CONCEDE, /8/  TO LEAVE THE CHICAGO SEATS VACANT AND THUS DEFEAT THE
OBJECTIVE. 

WE PROCEED, HOWEVER, TO CONSIDERING WHETHER THE ASSERTED STATE
INTEREST JUSTIFIES THE INJUNCTION.  EVEN THOUGH LEGITIMATE, THE
"'SUBORDINATING INTEREST OF THE STATE MUST BE COMPELLING'..."TO JUSTIFY
THE INJUNCTION'S ABRIDGMENT OF THE EXERCISE BY PETITIONERS AND THE
NATIONAL DEMOCRATIC PARTY OF THEIR CONSTITUTIONALLY PROTECTED RIGHTS OF
ASSOCIATION.  NAACP V. ALABAMA, 357 U.S. 449, 463 (1958). 

RESPONDENTS ARGUE THAT ILLINOIS HAD A COMPELLING INTEREST IN
PROTECTING THE INTEGRITY OF ITS ELECTORAL PROCESSES AND THE RIGHT OF
ITS CITIZENS UNDER THE STATE AND FEDERAL CONSTITUTIONS TO EFFECTIVE
SUFFRAGE.  THEY RELY ON THE NUMEROUS STATEMENTS OF THIS COURT THAT THE
RIGHT TO VOTE IS A "FUNDAMENTAL POLITICAL RIGHT, BECAUSE PRESERVATIVE
OF ALL RIGHTS."  YICK WO V. HOPKINS, 118 U.S. 356, 370 (1886); REYNOLDS
V. SIMS, 377 U.S. 533, 562 (1964); WILLIAMS V. RHODES, 393 U.S., AT 31;
KRAMER V. UNION SCHOOL DISTRICT, 395, U.S. 621, 626 (1969); DUNN V.
BLUMSTEIN, 405 U.S. 330, 336 (1972).  BUT RESPONDENTS OVERLOOK THE
SIGNIFICANT FACT THAT THE SUFFRAGE WAS EXERCISED AT THE PRIMARY
ELECTION TO ELECT DELEGATES TO A NATIONAL PARTY CONVENTION. 
CONSIDERATION OF THE SPECIAL FUNCTION OF DELEGATES TO SUCH A CONVENTION
MILITATES PERSUASIVELY AGAINST THE CONCLUSION THAT THE ASSERTED
INTEREST CONSTITUTES A COMPELLING STATE INTEREST.  DELEGATES PERFORM A
TASK OF SUPREME IMPORTANCE TO EVERY CITIZEN OF THE NATION REGARDLESS OF
THEIR STATE OF RESIDENCE.  THE VITAL BUSINESS OF THE CONVENTION IS THE
NOMINATION OF THE PARTY'S CANDIDATES FOR THE OFFICES OF PRESIDENT AND
VICE PRESIDENT OF THE UNITED STATES.  TO THAT END, THE STATE POLITICAL
PARTIES ARE "AFFILIATED WITH A NATIONAL PARTY THROUGH ACCEPTANCE OF THE
NATIONAL CALL TO SEND STATE DELEGATES TO THE NATIONAL CONVENTION."  RAY
V. BLAIR, 343 U.S. 214, 225 (1952).  THE STATES THEMSELVES HAVE NO
CONSTITUTIONALLY MANDATED ROLE IN THE GREAT TASK OF THE SELECTION OF
PRESIDENTIAL AND VICE-PRESIDENTIAL CANDIDATES.  /9/  IF THE
QUALIFICATIONS AND ELIGIBILITY OF DELEGATES TO NATIONAL POLITICAL PARTY
CONVENTIONS WERE LEFT TO STATE LAW "EACH OF THE FIFTY STATES COULD
ESTABLISH THE QUALIFICATIONS OF ITS DELEGATES TO THE VARIOUS PARTY
CONVENTIONS WITHOUT REGARD TO PARTY POLICY, AN OBVIOUSLY INTOLERABLE
RESULT."  WIGODA V. COUSINS, 342 F. SUPP. 82, 86 (ND ILL. 1972).  SUCH
A REGIME COULD SERIOUSLY UNDERCUT OR INDEED DESTROY THE EFFECTIVENESS
OF THE NATIONAL PARTY CONVENTION AS A CONCERTED ENTERPRISE ENGAGED IN
THE VITAL PROCESS OF CHOOSING PRESIDENTIAL AND VICE-PRESIDENTIAL
CANDIDATES--A PROCESS WHICH USUALLY INVOLVES COALITIONS CUTTING ACROSS
STATE LINES.  /10/  THE CONVENTION SERVES THE PERVASIVE NATIONAL
INTEREST IN THE SELECTION OF CANDIDATES FOR NATIONAL OFFICE, AND THIS
NATIONAL INTEREST IS GREATER THAN ANY INTEREST OF AN INDIVIDUAL STATE. 
THE PARAMOUNT NECESSITY FOR EFFECTIVE PERFORMANCE OF THE CONVENTION'S
TASK IS UNDERSCORED BY MR. JUSTICE PITNEY'S ADMONITION "THAT THE
LIKELIHOOD OF A CANDIDATE SUCCEEDING IN AN ELECTION WITHOUT A PARTY
NOMINATION IS PRACTICALLY NEGLIGIBLE....  AS A PRACTICAL MATTER, THE
ULTIMATE CHOICE OF THE MASS OF VOTERS IS PREDETERMINED WHEN THE
NOMINATIONS HAVE BEEN MADE."  NEWBERRY V. UNITED STATES, 256 U.S. 232,
286 (1921) (DISSENTING OPINION). 

THUS, ILLINOIS' INTEREST IN PROTECTING THE INTEGRITY OF ITS
ELECTORAL PROCESS CANNOT BE DEEMED COMPELLING IN THE CONTEXT OF THE
SELECTION OF DELEGATES TO THE NATIONAL PARTY CONVENTION.  WHATEVER THE
CASE OF ACTIONS PRESENTING CLAIMS THAT THE PARTY'S DELEGATE SELECTION
PROCEDURES ARE NOT EXERCISED WITHIN THE CONFINES OF THE CONSTITUTION-
AND NO SUCH CLAIMS ARE MADE HERE--THIS IS A CASE WHERE "THE CONVENTION
ITSELF (WAS) THE PROPER FORUM FOR DETERMINING INTRA-PARTY DISPUTES AS
TO WHICH DELEGATES (SHOULD) BE SEATED."  3'BRIEN V. BROWN, 409 U.S. 1,
4 (1972). 

              REVERSED. 

/1/  THE HEARING OFFICER FOUND VIOLATIONS OF GUIDELINES A-1
(MINORITY GROUP PARTICIPATION), A-2 (WOMEN AND YOUTH PARTICIPATION), A
5 (EXISTENCE OF PARTY RULES), C-1 (ADEQUATE PUBLIC NOTICE OF PARTY
AFFAIRS), C-4 (TIMING OF DELEGATE SELECTION), AND C-6 (SLATE-MAKING). 
1972).  GUIDELINE C-6, RELATING TO SLATE-MAKING, WAS AS FOLLOWS:  "C-6
SLATE-MAKING 

"IN MANDATING A FULL AND MEANINGFUL OPPORTUNITY TO PARTICIPATE IN
THE DELEGATE SELECTION PROCESS, THE 1968 CONVENTION MEANT TO PROHIBIT
ANY PRACTICE IN THE PROCESS OF SELECTION WHICH MADE IT DIFFICULT FOR
DEMOCRATS TO PARTICIPATE.  SINCE THE PROCESS BY WHICH INDIVIDUALS ARE
NOMINATED FOR DELEGATE POSITIONS AND SLATES OF POTENTIAL DELEGATES ARE
FORMED IS AN INTEGRAL AND CRUCIAL PART OF THE PROCESS BY WHICH
DELEGATES ARE ACTUALLY SELECTED, THE COMMISSION REQUIRES STATE PARTIES
TO EXTEND TO THE NOMINATING PROCESS ALL GUARANTEES OF FULL AND
MEANINGFUL OPPORTUNITY TO PARTICIPATE INTHE DELEGATE SELECTION
PROCESS.  WHEN STATE LAW CONTROLS, THE COMMISSION REQUIRES STATE
PARTIES TO MAKE ALL FEASIBLE EFFORTS TO REPEAL, AMEND OR OTHERWISE
MODIFY SUCH LAWS TO ACCOMPLISH THE STATED PURPOSE. 

"FURTHERMORE, WHENEVER SLATES ARE PRESENTED TO CAUCUSES, MEETINGS. 
CONVENTIONS, COMMITTEES, OR TO VOTERS IN A PRIMARY, THE COMMISSION
REQUIRES STATE PARTIES TO ADOPT PROCEDURES WHICH ASSURE THAT:

"1.  THE BODIES MAKING UP THE SLATES HAVE BEEN ELECTED, ASSEMBLED,
OR APPOINTED FOR THE SLATE-MAKING TASK WITH ADEQUATE PUBLIC NOTICE THAT
THEY WOULD PERFORM SUCH TASK; 

"2.  THOSE PERSONS MAKING UP EACH SLATE HAVE ADOPTED PROCEDURES THAT
WILL FACILITATE WIDESPREAD PARTICIPATION IN THE SLATE-MAKING PROCESS,
WITH THE PROVISO THAT ANY SLATE PRESENTED IN THE NAME OF A PRESIDENTIAL
CANDIDATE IN A PRIMARY STATE BE ASSEMBLED WITH DUE CONSULTATION WITH
THE PRESIDENTIAL CANDIDATE OR HIS REPRESENTATIVE. 

"3.  ADEQUATE PROCEDURAL SAFEGUARDS ARE PROVIDED TO ASSURE THAT THE
RIGHT TO CHALLENGE THE PRESENTED SLATE IS MORE THAN PERFUNCTORY AND
PLACES NO UNDUE BURDEN ON THE CHALLENGERS. 

"WHEN STATE LAW CONTROLS, THE COMMISSION REQUIRES STATE PARTIES TO
MAKE ALL FEASIBLE EFFORTS TO REPEAL, AMEND OR OTHERWISE MODIFY SUCH
LAWS TO ACCOMPLISH THE STATED PURPOSE." 

FOR COMMENTS ON THE DEVELOPMENT OF THE GUIDELINES, SEE SCHMIDT &
WHALEN, CREDENTIALS CONTESTS AND THE 1968 AND 1972 DEMOCRATIC NATIONAL
CONVENTIONS, 82 HARV. L. REV. 1438 (1969); SEGAL, DELEGATE SELECTION
STANDARDS: THE DEMOCRATIC PARTY'S EXPERIENCE, 38 GEO. WASH. L. REV. 873
(1970); REPORT OF COMMISSION ON PARTY STRUCTURE AND DELEGATE SELECTION:
MANDATE FOR REFORM (1970), REPRINTED AT 117 CONG. REC. 32909 (1971). 

/2/  THE INJUNCTION WAS OBTAINED IN A CIRCUIT COURT ACTION FILED
APRIL 19, 1972, BY THE WIGODA DELEGATES AGAINST THE COUSINS DELEGATES. 
IN THE INTERVAL BETWEEN THE FILING OF THE SUIT AND THE ACTION OF THE
CREDENTIALS COMMITTEE ON JUNE 30, 1972, TWO PROCEEDINGS OCCURRED IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS RELATED TO THE
SUIT.  ON APRIL 20 PETITIONERS REMOVED THE CASE TO THAT FEDERAL COURT. 
ON MAY 17 THE CASE WAS REMANDED ON THE GROUND THAT THERE WAS NO BASIS
FOR FEDERAL JURISDICTION.  WIGODA V. COUSINS, 342 F. SUPP. 82.  ON JUNE
30, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT, IN AN UNPUBLISHED
ORDER, AFFIRMED THE REMAND.  WIGODA V. COUSINS, NO. 72 - 1384. 

WHILE THE REMAND ISSUE WAS PENDING, PETITIONERS FILED THEIR OWN
ACTION IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
SEEKING AN INJUNCTION AGAINST RESPONDENTS PROCEEDING WITH THE CIRCUIT
COURT SUIT ON THE GROUND THAT IT VIOLATED THEIR FIRST AMENDMENT
RIGHTS.  ON JUNE 9, AFTER TRIAL, A PRELIMINARY INJUNCTION ISSUED
BARRING RESPONDENTS FROM PROCEEDING WITH THE STATE DOURT ACTION. 
COUSINS V. WIGODA, CIVIL NO. 72C 1108.  THAT INJUNCTION WAS REVERSED BY
THE SEVENTH CIRCUIT ON JUNE 29.  COUSINS V. WIGODA, 463 F.2D 603. 
PETITIONERS' APPLICATION TO MR. JUSTICE REHINQUIST, CIRCUIT JUSTICE,
FOR A STAY OF THE COURT OF APPEALS ORDER WAS DENIED ON JULY 1.  409
U.S. 1201. 

/3/  THE APPELLATE COURT ALSO AFFIRMED ANOTHER INJUNCTION OF THE
CIRCUIT COURT ENTERED AUGUST 2, 1972, BARRING PETITIONERS FROM
PARTICIPATING AS DELEGATES AT A POST-CONVENTION CAUCUS ON AUGUST 5,
1972, TO SELECT THE ILLINOIS REPRESENTATIVES TO THE DEMOCRATIC NATIONAL
COMMITTEE TO SERVE UNTIL THE 1976 CONVENTION.  PETITIONERS COMPLIED
WITH THAT INJUNCTION AND RESPONDENTS PARTICIPATED IN THE AUGUST 5
CAUCUS.  SINCE THE NATIONAL COMMITTEE PLANS THE NATIONAL CONVENTION THE
QUESTION OF THE VALIDITY OF THE AUGUST 2 INJUNCTION IS ANALYTICALLY
INDISTINGUISHABLE FROM THE QUESTION OF THE VALIDITY OF THE JULY 8
INJUNCTION AND OUR DECISION TODAY APPLIES TO BOTH INJUNCTIONS. 

/4/  WE EMPHASIZE THAT THIS IS THE ONLY QUESTION THAT WE DECIDE
TODAY.  THERE ARE NOT BEFORE US IN THIS CASE, AND WE INITIMATE NO VIEWS
UPON THE MERITS OF, SUCH QUESTIONS AS: 

(1) WHETHER THE DECISIONS OF A NATIONAL POLITICAL PARTY IN THE AREA
OF DELEGATE SELECTION CONSTITUTE STATE OR GOVERNMENTAL ACTION, AND, IF
SO, WHETHER OR TO WHAT EXTENT PRINCIPLES OF THE POLITICAL QUESTION
DOCTRINE COUNSEL AGAINST JUDICIAL INTERVENTION.  RESPONDENTS CONCEDE,
AND WE AGREE, THAT "(IN THE CONTEXT OF THE INSTANT CASE, IT IS NOT
NECESSARY TO DETERMINE WHETHER CONVENTION ACTION IS 'STATE
ACTION'...."  BRIEF FOR RESPONDENTS 47.  SEE BROWN V. O'BRIEN, 152 U.S.
APP. D.C. 157, 469 F.2D 563 (1972); GEORGIA V. NATIONAL DEMOCRATIC
PARTY, 145 U.S. APP. D.C. 102, 447 F.2D 1271 (1971); SMITH V. STATE
EXECUTIVE COMMITTEE OF DEMOCRATIC PARTY OF GEORGIA, 288 F. SUPP. 371
(ND GA. 1968); LYNCH V. TORQUATO, 343 F. 2D 370 (CA3 1965).  SEE ALSO
THE TEXAS WHITE PRIMARY CASES, NIXON V. HERNDON, 273 U.S. 536 (1927);
NIXON V. CONDON, 286 U.S. 73 (1932); SMITH V. ALLWRIGHT, 321 U.S. 649
(1944); TERRY V. ADAMS, 345 U.S. 461 (1953).  FOR THE DIFFERING VIEWS
OF COMMENTATORS, SEE NOTE, LEGAL ISSUES OF THE 1972 DEMOCRATIC
CONVENTION AND BEYOND, 4 LOYOLA U. OF CHI.  L.J. 137 (1973); NOTE,
REGULATION OF POLITICAL PARTIES: VOTE DILUTION IN THE PRESIDENTIAL
NOMINATION PROCEDURE, 54 IOWA L. REV. 471 (1968); CHAMBERS & ROTUNDA,
REFORM OF PRESIDENTIAL NOMINATING CONVENTIONS, 56 VA. L. REV. 179
(1970); NOTE, CONSTITUTIONAL SAFEGUARDS IN THE SELECTION OF DELEGATES
TO PRESIDENTIAL NOMINATING CONVENTIONS, 78 YALE L.J. 1228 (1969);
COMMENT, ONE MAN, ONE VOTE AND SELECTION OF DELEGATES TO NATIONAL
NOMINATING CONVENTIONS, 37 U. CHI.  L. REV. 536 (1970); BELLAMY,
APPLICABILITY OF THE FOURTEENTH AMENDMENT TO THE ALLOCATION OF
DELEGATES TO THE DEMOCRATIC NATIONAL CONVENTION, 38 GEO. WASH. L. REV.
892 (1970); RAYMAR, JUDICIAL REVIEW OF CREDENTIALS CONTESTS: THE
EXPERIENCE OF THE 1972 DEMOCRATIC NATIONAL CONVENTION, 42 GEO. WASH. L.
REV. 1 (1973); NOTE, JUDICIAL INTERVENTION IN THE PRESIDENTIAL
CANDIDATE SELECTION PROCESS: ONE STEP BACKWARDS, 47 N.Y.U.L. REV. 1184
(1972). 

(2) WHETHER NATIONAL POLITICAL PARTIES ARE SUBJECT TO THE PRINCIPLES
OF THE REAPPORTIONMENT DECISIONS, OR OTHER CONSTITUTIONAL RESTRAINTS,
IN THEIR METHODS OF DELEGATE SELECTION AND ALLOCATION.  COMPARE BODE V.
NATIONAL DEMOCRATIC PARTY, 146 U.S. APP. D.C. 373, 452 F.2D 1302
(1971), WITH IRISH V. DEMOCRATIC-FARMER-LABOR PARTY, 399 F.2D 119 (CA8
1968); AND SEE GARY V. SANDERS, 372 U.S. 368, 378 N. 10 (1963).  FOR A
HISTORY OF A CENTURY OF RESOLUTIONS OF CREDENTIALS DISPUTES THROUGH
PARTY PROCEDURED AND MACHINERY SEE R. BAIN & J. PARRIS, CONVENTION
DECISIONS AND VOTING RECORDS (2D ED. 1973); GOLDSTEIN, ONE MAN, ONE
VOTE AND THE POLITICAL CONVENTION, 40 U. CIN.  L. REV. 1 (1971). 

(3) WHETHER OR TO WHAT EXTENT NATIONAL POLITICAL PARTIES AND THIER
NOMINATING CONVENTIONS ARE REGULABLE BY, OR ONLY BY, CONGRESS.  SEE
NEWBERRY V. UNITED STATES, 256 U.S. 232, 275 (1921) (PITNEY, J.,
DISSENTING).  R. HORN, GROUPS AND THE CONSTITUTION 17 - 18 (1956);
NOTE, FREEDOM OF ASSOCIATION AND THE SELECTION OF DELEGATES TO NATIONAL
POLITICAL CONVENTIONS, 56 CORNELL L. REV. 148, 152 - 160 (1970). 

/5/  OUR ORDER PROVIDED THAT "THE APPLICATIONS FOR STAYS OF THE
JUDGMENTS OF THE COURT OF APPEALS ARE GRANTED."  409 U.S., AT 5.  THIS
ORDER APPLIED ALSO TO KEANE'S COMPANION CASE, O'BRIEN V. BROWN, 409
U.S. 1 (1972), WHICH CONCERNED CHALLENGES TO THE CALIFORNIA DELEGATION
TO THE 1972 DEMOCRATIC NATIONAL CONVENTION. 

/6/  THE ILLINOIS APPELLATE COURT ALSO FOUND RES JUDICATA
UNAVAILABLE FOR OTHER REASONS, INCLUDING A DIFFERENCE BETWEEN THE ISSUE
BEFORE IT AND THE ISSUE IN KEANE:  "THE ISSUE WHICH IS CENTRAL TO THE
INSTANT CAUSE IS THE ILLINOIS ELECTION CODE (ILL. REV. STAT. 1971, CH.
46, 7 - 1 ET SEQ.), AND THE RIGHT OF THE PLAINTIFFS WHO WERE ELECTED
PURSUANT TO ITS PROVISIONS TO SERVE IN THEIR ELECTIVE OFFICE.  THE
ISSUE WHICH WAS CENTRAL TO THE LITIGATION WHICH ENSUED IN KEANE V.
NATIONAL DEMOCRATIC PARTY WAS THE CONSTITUTIONALITY OF THE GUIDELINES
OF THE NATIONAL DEMOCRATIC PARTY...."  14 ILL. APP. 3D 460, 468 - 469,
302 N.E. 2D 614, 623. 

/7/  INDEED, PETITIONERS MAINTAIN ONLY THAT THE COURT OF APPEALS'
DECISION WAS "PRESENTED" AND "ARUGED" BEFORE THE CIRCUIT COURT JUDGE,
NOT THAT RES JUDICATA WAS FORMALLY PLEADED.  SEE BRIEF FOR PETITIONERS
16, 45.  MOREOVER, WHILE PETITIONERS ARGUED IN THE CIRCUIT COURT THAT
THE COURT OF APPEALS' INJUNCTION AGAINST THE STATE PROCEEDING WAS
EFFECTIVE DESPITE THIS COURT'S STAY, THEY DID NOT COUCH THE ARGUMENT IN
TERMS OF THE COURT OF APPEALS' DECISION HAVING RES JUDICATA EFFECT. 
TRANSCRIPT OF JULY 8, 1972, PP. 25 - 30, ET SEQ. 

/8/  IT IS POSSIBLE THAT THE CONVENTION WOULD HAVE REJECTED THE
ELECTED DELEGATES AND THAT CHICAGO, ILLINOIS WOULD HAVE BEEN WITHOUT
REPRESENTATION AT THE CONVENTION."  BRIEF FOR RESPONDENTS 46.  THUS,
RESPONDENTS CONCEDE THAT THEIR PROTECTED RIGHTS OF POLITICAL
ASSOCIATION DO NOT ENTITLE THEM TO RELIEF COMPELLING THE PARTY TO
ACCEPT THEM AS DELEGATES. 

/9/  EARLY PRESIDENTIAL NOMINATIONS WERE MADE BY CAUCUSES OF MEMBERS
OF CONGRESS BELONGING TO THE NATIONAL PARTIES.  SEE W. GOODMAN, THE TWO
PARTY SYSTEM IN THE UNITED STATES 153 - 158 (3D ED. 1964).  THERE HAVE
BEEN RECENT PROPOSALS THAT PARTIES USE REGIONAL OR NATIONAL PRIMARIES
TO CHOOSE THEIR NOMINEES.  SEE, E.G., NEW YORK TIMES, ARP.  18, 1972,
P. 12, COL. 5 (FIVE REGIONAL PRIMARIES PROPOSED BY SENATOR PACKWOOD;
NATIONAL PRIMARY PROPOSED BY SENATORS MANSFIELD AND AIKEN). 

/10/  SEVERAL DELEGATIONS SELECTED ACCORDING TO STATE LAW HAVE BEEN
DENIED SEATING IN CONVENTION RESOLUTION OF DISPUTES.  SEE, E.G., R.
BAIN & J. PARRIS, CONVENTION DECISIONS AND VOTING RECORDS 283 - 284,
323 (2D ED. 1973) (1952 REPUBLICAN CONVENTION, GEORGIA DELEGATION; 1968
DEMOCRATIC CONVENTION, MISSISSIPPI DELEGATION). 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
STEWART JOIN, CONCURRING IN THE RESULT. 

WE AGREE WITH THE COURT THAT THE MEMBERS OF POLITICAL PARTIES ENJOY
A CONSTITUTIONALLY PROTECTED RIGHT OF FREEDOM OF ASSOCIATION SECURED BY
THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 
THE RIGHT OF MEMBERS OF A POLITICAL PARTY TO GATHER IN A NATIONAL
POLITICAL CONVENTION IN ORDER TO FORMULATE PROPOSED PROGRAMS AND
NOMINATE CANDIDATES FOR POLITICAL OFFICE IS AT THE VERY HEART OF THE
FREEDOM OF ASSEMBLY AND ASSOCIATION WHICH HAS BEEN ESTABLISHED IN
EARLIER CASES DECIDED BY THE COURT.  NAACP V. ALABAMA, 357 U.S. 449
(1958); BATES V. LITTLE ROCK, 361 U.S. 516, 523 (1960); HEALY V. JAMES,
408 U.S. 169 (1972). 

WE ALSO AGREE THAT THE INTEREST OF THE STATE OF ILLINOIS IN
PROTECTING ITS ELECTORAL PROCESSES FOR PRIMARY DELEGATE SELECTION IS
NOT SUFFICIENT TO AUTHORIZE A FLAT PROHIBITION AGAINST PETITIONERS'
EFFORTS TO HAVE THE 1972 NATIONAL DEMOCRATIC CONVENTION SEAT THEM AS
PARTY DELEGATES FROM ILLINOIS.  THE OPERATION OF THE INJUNCTION ISSUED
BY THE ILLINOIS CIRCUIT COURT IN THIS CASE WAS DIRECT AND SEVERE AN
INFRINGEMENT OF THE RIGHT OF ASSOCIATION AS CAN BE CONCEIVED.  BESIDE
IT, THE SORT OF "SUBTLE GOVERNMENTAL INTERFERENCE" WHICH WAS REFERRED
TO IT BATES V. LITTLE ROCK, SUPRA, PALES.  WE WOULD BY NO MEANS
DOWNPLAY THE LEGITIMACY OF THE INTEREST OF THE STATE IN ASSURING THAT
DELEGATES TO THE PARTY CONVENTION CHOSEN PURSUANT TO ITS ELECTORAL
PROCESSES, AND PRESUMABLY REPRESENTING THE VIEW OF THE MAJORITY OF THE
PARTY'S ELECTORS IN THAT STATE, ARE SEATED AT THE CONVENTION.  BUT
SINCE IT IS CONCEDED THAT THE NATIONAL CONVENTION, AND NOT THE STATE,
HAD THE ULTIMATE AUTHORITY TO CHOOSE AMONG CONTESTING DELEGATIONS, WE
DO NOT BELIEVE THE STATE'S INTEREST IS SUFFICIENT TO SUPPORT A TOTAL
RESTRICTION ON THE PETITIONERS'  RIGHT TO ASSEMBLE, ASSOCIATE WITH
FELLOW MEMBERS OF A POLITICAL PARTY, AND URGE UPON THE CONVENTION THEIR
CLAIM TO BE SEATED AS DELEGATES. 

WHILE THE COURT ARRIVES AT SUBSTANTIALLY THE SAME CONCLUSION, IN THE
PROCESS OF DOING SO IT SEEMS TO US TO USE UNNECESSARILY BROAD LANGUAGE,
TO INTIMATE VIEWS ON QUESTIONS ON WHICH IT DISCLAIMS ANY INTIMATION OF
VIEWS, AND TO TURN VIRTUALLY ON ITS HEAD THE COURT'S OPINION IN O'BRIEN
V. BROWN, 409 U.S. 1 (1972). 

FOOTNOTE 4 OF THE COURT'S OPINION DISCLAIMS ANY INTIMATION OF VIEWS
ON THE FOLLOWING QUESTIONS: "(1) WHETHER THE DECISIONS OF A NATIONAL
POLITICAL PARTY IN THE AREA OF DELEGATE SELECTION CONSTITUTE STATE OR
GOVERNMENTAL ACTION..... (2) WHETHER NATIONAL POLITICAL PARTIES ARE
SUBJECT TO THE PRINCIPLES OF THE REAPPORTIONMENT DECISIONS, OR OTHER
CONSTITUTIONAL RESTRAINTS, IN THEIR METHODS OF DELEGATE SELECTION AND
ALLOCATION.... (3) WHETHER OR TO WHAT EXTENT NATIONAL POLITICAL PARTIES
AND THEIR NOMINATING CONVENTIONS ARE REGULABLE BY, OR ONLY BY,
CONGRESS."  BUT IMMEDIATELY FOLLOWING THE DISCLAIMER, THE COURT
PROCEEDS TO CITE NUMEROUS OPINIONS OF COURTS OF APPEALS AND DISTRICT
COURTS, AS WELL AS LAW REVIEW COMMENTARIES, WHICH TO THE
UNSOPHISTICATED MIND MIGHT SEEM TO PORTEND AN ANSWER TO EACH OF THESE
QUESTIONS.  CONSPICUOUS BY ITS ABSENCE IN THE FOOTNOTE IS ANY REFERENCE
TO THIS COURT'S OPINION IN O'BRIEN V. BROWN, SUPRA, DECIDED SLIGHTLY
MORE THAN TWO YEARS AGO, WHERE WE REVIEWED TWO CASES FROM THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  THAT
COURT IN THOSE CASES HAD TAKEN THE VIEW THAT ACTION BY THE NATIONAL
PARTY DID CONSTITUTE "STATE ACTION" FOR PURPOSES OF THE FOURTEENTH
AMENDMENT, AND PROCEEDED TO APPLY ITS INTERPRETATION OF THAT AMENDMENT
TO ACTION OF THE CREDENTIALS COMMITTEE OF THE DEMOCRATIC NATIONAL
CONVENTION.  WE STAYED THE ORDERS OF THE COURT OF APPEALS IN THOSE
CASES, SAYING: 

"IT HAS BEEN UNDERSTOOD SINCE OUR NATIONAL POLITICAL PARTIES FIRST
CAME INTO BEING AS VOLUNTARY ASSOCIATIONS OF INDIVIDUALS THAT THE
CONVENTION ITSELF IS THE PROPER FORUM FOR DETERMINING INTRA-PARTY
DISPUTES AS TO WHICH DELEGATES SHALL BE SEATED.  THUS, THESE CASES
INVOLVE CLAIMS OF THE POWER OF THE FEDERAL JUDICIARY TO REVIEW ACTIONS
HERETOFORE THOUGHT TO LIE IN THE CONTROL OF POLITICAL PARTIES.  HIGHLY
IMPORTANT QUESTIONS ARE PRESENTED CONCERNING JUSTICIABILITY, WHETHER
THE ACTION OF THE CREDENTIALS COMMITTEE IS STATE ACTION AND, IF SO, THE
REACH OF THE DUE PROCESS CLAUSE IN THIS UNIQUE CONTEXT.  VITAL RIGHTS
OF ASSOCIATION GUARANTEED BY THE CONSTITUTION ARE ALSO INVOLVED.  WHILE
THE COURT IS UNWILLING TO UNDERTAKE FINAL RESOLUTION OF THE IMPORTANT
CONSTITUTIONAL QUESTIONS PRESENTED WITHOUT FULL BRIEFING AND ARGUMENT
AND ADEQUATE OPPORTUNITY FOR DELIBERATION, WE ENTERTAIN GRAVE DOUBTS AS
TO THE ACTION TAKEN BY THE COURTS OF APPEALS."  409 U.S. AT 4-5. 

IN THE SAME OPINION, WE DISTINGUISHED THE CASES OF TERRY V. ADAMS,
345 U.S. 461 (1953), AND SMITH V. ALLWRIGHT, 321 U.S. 649 (1944), BOTH
CITED IN N. 4 OF THE COURT'S OPINION IN THE PRESENT CASE, ON THE GROUND
THAT THEY INVOLVED INVIDIOUS DISCRIMINATION BASED ON RACE IN A PRIMARY
CONTEST WITHIN A SINGLE STATE.  409 U.S., AT 4. 

WE SEE NO REASON TO RECEDE FROM ANY OF THE LANGUAGE WE USED IN
O'BRIEN V. BROWN, SUPRA, AND THEREFORE FIND THE COURT'S CITATION OF
THAT CASE TO BE A VIRTUAL REPUDIATION OF IT.  THE COURT SAYS, ANTE, AT
491: 

"WHATEVER THE CASE OF ACTIONS PRESENTING CLAIMS THAT THE PARTY'S
DELEGATE SELECTION PROCEDURES ARE NOT EXERCISED WITHIN THE CONFINES OF
THE CONSTITUTION--AND NO SUCH CLAIMS ARE MADE HERE--THIS IS A CASE
WHERE '...THE CONVENTION ITSELF (WAS THE PROPER FORUM FOR DETERMINING
INTRA-PARTY DISPUTES AS TO WHICH DELEGATES (SHOULD) BE SEATED.' 
O'BRIEN V. BROWN, 409 U.S. 1, 4 (1972)." 

IN O'BRIEN V. BROWN WE WERE DEALING, AS WE NEED NOT DEAL HERE, WITH
ACTIONS PRESENTING CLAIMS THAT THE PARTY'S DELEGATE SELECTION
PROCEDURES WERE NOT EXERCISED WITHIN THE CONFINES OF THE CONSTITUTION,
AND IT WAS IN THAT CONTEXT THAT THE EARLIER QUOTED LANGUAGE FROM THAT
CASE WAS USED.  THAT ISSUE IS NOT PRESENT IN THIS CASE, NOR ARE THE
OTHERS ON WHICH THE COURT DISCLAIMS ANY VIEWS, AND FOR THAT REASON WE
WOULD THINK IT BETTER JUDICIAL PROCEDURE NOT TO GO BEYOND WHAT WE HAVE
ALREADY SAID IN O'BRIEN V. BROWN, AND FORESHADOW RESULTS IN CASES NOT
BEFORE US.  /1/ 

THE COURT STATES, ANTE, AT 490, THAT THE NATIONAL CONVENTION "SERVES
THE PERVASIVE NATIONAL INTEREST IN THE SELECTION OF CANDIDATES FOR
NATIONAL OFFICE, AND THIS NATIONAL INTEREST IS GREATER THAN ANY
INTEREST OF AN INDIVIDUAL STATE."  WHILE THIS MAY BE A PERFECTLY APT
STATEMENT OF A POLITICAL FACT, WE BELIEVE IT IS AN UNNECESSARILY BROAD
AND VAGUE STATEMENT TO BE CONTAINED IN AN OPINION OF THIS COURT.  THE
POLITICAL FACT--THAT THE INTEREST SERVED BY NATIONAL POLITICAL
CONVENTIONS TRANSCENDS THE BOUNDARIES OF ANY SINGLE STATE--WEIGHS IN
FAVOR OF PETITIONERS ON THE SCALE WHICH BALANCES THEIR CONSTITUTIONAL
CLAIM AGAINST THE STATE'S INTEREST IN THE INTEGRITY OF ITS ELECTORAL
PROCESS.  BUT THE DISSENTING OPINION OF MR. JUSTICE PITNEY IN NEWBERRY
V. UNITED STATES, 256 U.S. 232, 285 (1921), WITHOUT MORE, DOES NOT
ESTABLISH FOR US THAT THERE IS A "NATIONAL INTEREST" WHICH STANDING
ALONE, APART FROM VALID CONGRESSIONAL LEGISLATION OR CONSTITUTIONAL
PROVISION, WOULD OVERRIDE STATE REGULATION IN THIS SITUATION. 

NOR CAN WE AGREE WITH THE COURT'S CHARACTERIZATION OF THE ROLE OF
THE STATES IN THIS PROCESS WHEN IT SAYS THAT "(THE STATES THEMSELVES
HAVE NO CONSTITUTIONALLY MANDATED ROLE IN THE GREAT TASK OF THE
SELECTION OF PRESIDENTIAL AND VICE-PRESIDENTIAL CANDIDATES."  ANTE, AT
489 - 490.  UNDER ART. II, 1, THE STATES ARE GIVEN THE POWER TO
"APPOINT, IN SUCH MANNER AS THE LEGISLATURE THEREOF MAY DIRECT"
PRESIDENTIAL ELECTORS.  /2/  SEE IN RE GREEN, 134 U.S. 377, 379 (1890);
MCPHERSON V. BLACKER, 146 U.S. 1, 27 - 28 (1892); RAY V. BLAIR, 343
U.S. 214 (1952); OREGON V. MITCHELL, 400 U.S. 112, 291 (1970) (OPINION
OF STEWART, J., JOINED BY BURGER, C.J., AND BLACKMUN, J.).  UNDER OUR
CONSTITUTIONAL SYSTEM, THE STATES ALSO HAVE RESIDUAL AUTHORITY IN ALL
AREAS NOT TAKEN FROM THEM BY THE CONSTITUTION OR BY VALIDLY ENACTED
CONGRESSIONAL LEGISLATION.  THE QUESTION FOR US, THEREFORE, IS NOT
WHETHER THE STATES HAVE A "CONSTITUTIONALLY MANDATED ROLE" IN THE TASK
OF SELECTING PRESIDENTIAL AND VICE-PRESIDENTIAL CANDIDATES, BUT WHETHER
THE AUTHORITY OF THE STATE OF ILLINOIS IS SUFFICIENT IN THIS CASE TO
AUTHORIZE AN INJUNCTION FLATLY PROHIBITING PETITIONERS FROM ASSERTING
BEFORE THE DEMOCRATIC NATIONAL CONVENTION THEIR CLAIM TO BE SEATED AS
DELEGATES.  WE DO NOT BELIEVE THAT IT IS, AND THEREFORE CONCUR IN THE
RESULT REACHED BY THE COURT.  BUT WE WOULD REST THE RESULT
UNEQUIVOCALLY ON THE FREEDOM TO ASSEMBLE AND ASSOCIATE GUARANTEED BY
THE FIRST AND FOURTEENTH AMENDMENTS, AND NEITHER DISCUSS NOR HINT AT
RESOLUTION OF ISSUES NEITHER PRESENTED HERE NOR PREVIOUSLY RESOLVED BY
OUR CASES. 

/1/  GRATUITOUS OBSERVATIONS ARE PARTICULARLY INAPPROPRIATE IN THIS
AREA WHERE THE COURT HAS LONG ESCHEWED PASSING ON ISSUES NOT REQUIRED
FOR RESOLUTION OF THE CASE PRESENTED.  GRAY V. SANDERS, 372 U.S. 368,
378 N. 10 (1963).  THE CRUCIAL AND SENSITIVE NATURE OF QUESTIONS
RELATING TO THE PROCESS OF PRESIDENTIAL SELECTION WAS POINTED OUT BY
JAMES WILSON, A DELEGATE TO THE CONSTITUTIONAL CONVENTION, IN
COMMENTING ON THE MANNER OF PRESIDENTIALSELECTION SET FORTH IN THE
CONSTITUTION:  "THIS SUBJECT HAS GREATLY DIVIDED THE HOUSE, AND WILL
ALSO DIVIDE PEOPLE OUT OF DOORS.  IT IS IN TRUTH THE MOST DIFFICULT OF
ALL ON WHICH WE HAVE HAD TO DECIDE."  2 M. FARRAND, RECORDS OF THE
FEDERAL CONVENTION OF 1787, P. 501 (REV. ED. 1937). 

/2/  ARTICLE II, 1, PROVIDES IN PART: 

EACH STATE SHALL APPOINT, IN SUCH MANNER AS THE LEGISLATURE THEREOF
MAY DIRECT, A NUMBER OF ELECTORS....  THE CONGRESS MAY DETERMINE THE
TIME OF CHUSING THE ELECTORS, AND THE DAY ON WHICH THEY SHALL GIVE
THEIR VOTES...." 

MR. JUSTICE POWELL, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE THAT THE NATIONAL CONVENTION OF THE DEMOCRATIC PARTY COULD
NOT BE COMPELLED TO SEAT RESPONDENTS.  I DISAGREE, HOWEVER, THAT THE
ILLINOIS COURTS ARE WITHOUT POWER TO ENJOIN PETITIONERS FROM SITTING AS
DELEGATES REPRESENTING DISTRICTS IN THAT STATE.  TO THIS LIMITED
EXTENT, I DISSENT. 

THE ILLINOIS LEGISLATURE HAS ENACTED A COMPREHENSIVE SCHEME FOR
REGULATING THE ELECTION OF DELEGATES TO NATIONAL PARTY CONVENTIONS,
ILL. REV. STAT., C. 46, 7 - 1 ET SEQ. (1973), INCLUDING A MEANS BY
WHICH A DEFEATED CANDIDATE MAY CHALLENGE THE ELECTION.  7 - 63. 
RESPONDENTS WERE DULY ELECTED IN PRIMARIES HELD IN VARIOUS ELECTION
DISTRICTS IN THE CITY OF CHICAGO.  PETITIONERS, FOR THE MOST PART, WERE
PEOPLE WHO HAD LOST IN THESE PRIMARIES AND WHO EVENTUALLY WERE SELECTED
IN PRIVATE CAUCUSES AS A CHALLENGE DELEGATION.  THEY MADE NO CHALLENGE
UNDER STATE LAW BUT, RATHER, THEY SUCCESSFULLY UNSEATED RESPONDENTS AT
THE CONVENTION AND HAD THEMSELVES SEATED AS DELEGATES REPRESENTING THE
DISTRICTS IN WHICH THE OUSTED DELEGATES HAD BEEN ELECTED. 

THE ILLINOIS APPELLATE COURT CONCLUDED THAT THE DEMOCRATIC PARTY 

"MOST CERTAINLY COULD NOT SEAT PEOPLE OF THEIR CHOICE AND FORCE THEM
UPON THE PEOPLE OF ILLINOIS AS THEIR REPRESENTATIVES, CONTRARY TO THEIR
ELECTIVE MANDATE."  14 ILL. APP. 3D 460, 479, 302 N.E. 2D 614, 631
(1973).  I AGREE WITH THIS STATEMENT.  HAD THE COURT'S DECISION BEEN
LIMITED TO THIS CONCLUSION, IT WOULD NOT HAVE INFRINGED IN ANY WAY THE
ASSOCIATIONAL RIGHTS OF PETITIONERS OR THE DEMOCRATIC PARTY.  THE
NATIONAL CONVENTION OF THE PARTY MAY SEAT WHOMEVER IT PLEASES,
INCLUDING PETITIONERS, AS DELEGATES AT LARGE.  THE STATE OF ILLINOIS,
ON THE OTHER HAND, HAS A LEGITIMATE INTEREST IN PROTECTING ITS CITIZENS
FROM BEING REPRESENTED BY DELEGATES WHO HAVE BEEN REJECTED BY THESE
CITIZENS IN A DEMOCRATIC ELECTION.  ACCORDINGLY I WOULD AFFIRM THE
INJUNCTIONS OF THE TRIAL COURT INSOFAR AS THEY BARRED PETITIONERS FROM
PURPORTING, CONTRARY TO ILLINOIS LAW, TO REPRESENT CERTAIN ELECTION
DISTRICTS OF THAT STATE.  /1/ 

/1/  I ALSO AGREE WITH THE COURT THAT THIS CASE INTIMATES NO VIEWS
REGARDING OTHER EFFORTS TO REGULATE PARTY CONVENTIONS.  CONGRESSIONAL
REGULATION OF NATIONAL CONVENTIONS OR STATE REGULATION OF STATE
PRIMARIES OR CONVENTIONS FOR STATE OFFICES RAISES DIFFERENT
CONSIDERATIONS REQUIRING A WHOLLY DIFFERENT BALANCE. 

WAYNE W. WHALEN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE JOHN R. SCHMIDT, DOUGLAS A. POE, ROBERT L. TUCKER, AND JOHN
C. TUCKER. 

JEROME H. TORSHEN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE LAWRENCE H. EIGER, EARL L. NEAL, AND GAYLE F. HAGLUND. 

JOSEPH L. RAUH, JR., JOHN SILARD, AND ELLIOTT LICHTMAN FILED A BRIEF
FOR AMERICANS FOR DEMOCRATIC ACTION ET AL. AS AMICI CURIAE URGING
REVERSAL. 
..END :























SCHLESINGER V. BALLARD, 419 U.S. 498 


       SCHLESINGER, SECRETARY OF DEFENSE, ET AL. V. BALLARD

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF CALIFORNIA

NO. 73 - 776.  ARGUED OCTOBER 15, 1974--DECIDED JANUARY 15,

           1975; 360 F. SUPP. 643, REVERSED. 


    APPELLEE, A NAVAL OFFICER WITH MORE THAN NINE YEARS OF ACTIVE

  SERVICE, WHO FAILED FOR A SECOND TIME TO BE SELECTED FOR

  PROMOTION AND THUS UNDER 10 U.S.C. 6382 (A) WAS SUBJECT TO

  MANDATORY DISCHARGE, BROUGHT THIS ACTION CLAIMING THAT

  APPLICATION OF THAT STATUTE TO HIM WHEN COMPARED TO 10 U.S.C.

  6401 (UNDER WHICH HAD HE BEEN A WOMAN OFFICER HE WOULD HAVE BEEN

  ENTITLED TO 13 YEARS OF COMMISSIONED SERVICE BEFORE A MANDATORY

  DISCHARGE FOR WANT OF PROMOTION) WAS AN UNCONSTITUTIONAL

  DISCRIMINATION BASED ON SEX IN VIOLATION OF THE FIFTH AMENDMENT'S

  DUE PROCESS CLAUSE.  A THREE-JUDGE DISTRICT COURT, RELYING ON

  FRONTIERO V. RICHARDSON, 411 U.S. 677, CONCLUDED THAT THE

  CHALLENGED MANDATORY-DISCHARGE PROVISIONS ARE SUPPORTED SOLELY BY

  CONSIDERATIONS OF FISCAL AND ADMINISTRATIVE POLICY, AND UPHELD

  APPELLEE'S CLAIM.  HELD: THE CHALLENGED LEGISLATIVE

  CLASSIFICATION IS COMPLETELY RATIONAL AND DOES NOT VIOLATE THE

  DUE PROCESS CLAUSE.  PP. 505 - 510. 

(A) THE DIFFERENT TREATMENT OF MEN AND WOMEN NAVAL OFFICERS

  UNDER 6382 AND 6401 RESULTS, NOT FROM MERE ADMINISTRATIVE OR

  FISCAL CONVENIENCE, BUT FROM THE FACT THAT FEMALE LINE OFFICERS

  BECAUSE OF RESTRICTIONS ON THEIR PARTICIPATING IN COMBAT AND MOST

  SEA DUTY DO NOT HAVE OPPORTUNITIES FOR PROFESSIONAL SERVICE EQUAL

  TO THOSE OF MALE LINE OFFICERS, AND CONGRESS COULD RATIONALLY

  CONCLUDE THAT A LONGER PERIOD OF TENURE FOR WOMEN OFFICERS

  COMPORTED WITH THE GOAL OF PROVIDING WOMEN OFFICERS WITH "FAIR

  AND EQUITABLE CAREER ADVANCEMENT PROGRAMS."  FRONTIERO V.

  RICHARDSON, SUPRA; REED V. REED, 404 U.S. 71, DISTINGUISHED.  PP.

505 - 508. 

     (B) IN NAVAL CORPS WHERE MALE AND FEMALE OFFICERS ARE
SIMILARLY

  SITUATED CONGRESS MADE NO TENURE DISTINCTIONS, THUS UNDERSCORING

  THE RATIONALITY OF THE LEGISLATIVE CLASSIFICATION.  P. 509. 

     (C) THE CHALLENGED STATUTES FURTHER A FLOW OF PROMOTIONS

  COMMENSURATE WITH THE NAVY'S CURRENT NEEDS AND SERVE TO MOTIVATE

  QUALIFIED COMMISSIONED OFFICERS SO TO CONDUCT THEMSELVES THAT

THEY MAY REALISTICALLY ANTICIPATE HIGHER COMMAND LEVELS.  P.

  510. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 

  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND

  MARSHALL, JJ., JOINED, POST, P. 511.  WHITE, J., FILED A

  DISSENTING STATEMENT, POST, P. 521. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

APPELLEE ROBERT C. BALLARD IS A LIEUTENANT IN THE UNITED STATES
NAVY.  AFTER MORE THAN NINE YEARS OF ACTIVE SERVICE AS A COMMISSIONED
OFFICER, HE FAILED, FOR A SECOND TIME, TO BE SELECTED FOR PROMOTION TO
THE GRADE OF LIEUTANT COMMANDER, AND WAS THEREFORE SUBJECT TO MANDATORY
DISCHARGE UNDER 10 U.S.C. 6382 (A).  /1/  HE BROUGHT SUIT IN FEDERAL
COURT CLAIMING THAT IF HE HAD BEEN A WOMAN OFFICER, HE WOULD HAVE BEEN
SUBJECT TO A DIFFERENT SEPARATION STATUTE, 10 U.S.C. 6401, UNDER WHICH
HE WOULD HAVE BEEN ENTITLED TO 13 YEARS OF COMMISSIONED SERVICE BEFORE
A MANDATORY DISCHARGE FOR WANT OF PROMOTION.  /2/  HE CLAIMED THAT THE
APPLICATION OF 6382 TO HIM, WHEN COMPARED WITH THE TREATMENT OF WOMEN
OFFICERS SUBJECT TO 6401, WAS AN UNCONSTITUTIONAL DISCRIMINATION BASED
ON SEX IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 
/3/ 

THE DISTRICT JUDGE ISSUED A TEMPORARY RESTRAINING ORDER PROHIBITING
BALLARD'S DISCHARGE.  SUBSEQUENTLY, A THREE-JUDGE DISTRICT COURT WAS
CONVENED TO HEAR THE CLAIM PURSUANT TO 28 U.S.C. 2282, 2284.  AFTER
HEARINGS UPON MOTIONS BY THE GOVERNMENT DEFENDANTS, THAT COURT ISSUED A
PRELIMINARY INJUNCTION AGAINST BALLARD'S DISCHARGE.  350 F. SUPP. 167. 
THEREAFTER, THE CASE CAME BEFORE THE THREE-JUDGE COURT FOR DECISION ON
THE MERITS.  RELYING UPON FRONTIERO V. RICHARDSON, 411 U.S. 677, AND
CONCLUDING THAT THE CHALLENGED MANDATORY-DISCHARGE PROVISIONS ARE
SUPPORTED SOLELY BY CONSIDERATIONS OF FISCAL AND ADMINISTRATIVE POLICY,
THE COURT HELD THAT 6382 IS UNCONSTITUTIONAL BECAUSE THE 13-YEAR TENURE
PROVISION OF 6401 DISCRIMINATES IN FAVOR OF WOMEN WITHOUT SUFFICIENT
JUSTIFICATION.  360 F. SUPP. 643.  ACCORDINGLY, THE COURT ENJOINED THE
NAVY FROM DISCHARGING BALLARD FOR FAILURE TO BE PROMOTED TO THE GRADE
OF LIEUTENANT COMMANDER BEFORE THE EXPIRATION OF 13 YEARS OF
COMMISSIONED SERVICE.  ID., AT 648.  WE NOTED PEOBABLE JURISDICTION OF
THIS APPEAL FROM THAT INJUNCTIVE ORDER.  415 U.S. 912.  SEE 28 U.S.C.
1253. 

        I 

AT THE BASE OF THE SYSTEM GOVERNING THE PROMOTION AND ATTRITION OF
MALE LINE OFFICERS IN THE NAVY IS A CONGRESSIONAL DESIGNATION OF THE
AUTHORIZED NUMBER OF THE NAVY'S ENLISTED PERSONNEL, 10 U.S.C. 5401, AND
A CORRELATIVE LIMITATION UPON THE NUMBER OF ACTIVE LINE OFFICERS AS A
PERCENTAGE OF THAT FIGURE.  5403.  /4/  CONGRESS HAS ALSO ESTABLISHED
THE RATIO OF DISTRIBUTION OF LINE OFFICERS IN THE SEVERAL GRADES ABOVE
LIEUTENANT IN FIXED PROPORTIONS TO THE TOTAL NUMBER OF LINE OFFICERS. 
5442, 5447 (A). 

THE SECRETARY OF THE NAVY IS REQUIRED PERIODICALLY TO CONVENE
SELECTION BOARDS TO CONSIDER AND RECOMMEND FOR PROMOTION MALE LINE
OFFICERS IN EACH OF THE SEPARATE RANKS, 5701, AND MUST PROVIDE THE
BOARDS SO CONVENED WITH THE NUMBER OF MALE LINE OFFICERS THAT MAY BE
RECOMMENDED FOR PROMOTION TO THE NEXT HIGHER GRADE.  ELIGIBLE OFFICERS
ARE THEN RECOMMENDED FOR PROMOTION BY THE SELECTION BOARDS, BASED UPON
MERIT, AND ARE PLACED ON A PROMOTION LIST AND PROMOTED IN DUE COURSE AS
VACANCIES OCCUR IN THE HIGHER RANKS.  5769.  BECAUSE THE NUMBER OF
LIEUTENANT COMMANDERS IS SET BY STATUTE, THE NUMBER OF LIEUTENANTS,
LIKE BALLARD, WHO MAY BE RECOMMENDED FOR PROMOTION AND PLACED ON A
PROMOTION LIST IN ANY YEAR DEPENDS UPON THE NUMBER OF VACANCIES
EXISTING AND ESTIMATED FOR THE COMING YEAR IN THE RANK OF LIEUTENANT
COMMANDER.  5756. 

WHOLLY SEPARATE PROMOTION LINES ARE ESTABLISHED FOR THE VARIOUS
CATEGORIES OF OFFICERS.  THUS, IN ADDITION TO THE SELECTION BOARDS THAT
ARE CONVENED TO REVIEW THE PROMOTION OF MALE LINE OFFICERS, DIFFERENT
SELECTION BOARDS ARE CONVENED TO RECOMMEND FOR PROMOTION STAFF CORPS
OFFICERS (EXCEPT FOR WOMEN OFFICERS APPOINTED UNDER 10 U.S.C. 5590),
5702, MALE OFFICERS IN THE MARINE CORPS, 5703, WOMEN LINE OFFICERS,
5704 (A), AND WOMEN STAFF OFFICERS WHO ARE APPOINTED UNDER 5590.  5704
(B).  THE CONVENING OF THESE SEPARATE SELECTION BOARDS PERMITS NAVAL
OFFICERS WITHIN EACH CATEGORY TO BE CONSIDERED FOR PROMOTION IN
COMPARISON WITH OTHER OFFICERS WITH SIMILAR OPPORTUNITIES AND
EXPERIENCE. 

BECAUSE THE NAVY HAS A PYRAMIDAL ORGANIZATIONAL STRUCTURE, FEWER
OFFICERS ARE NEEDED AT EACH HIGHER RANK THAN WERE NEEDED IN THE RANK
BELOW.  IN THE ABSENCE OF SOME MANDATORY ATTRITION OF NAVAL OFFICERS,
THE RESULT WOULD BE STAGNATION OF PROMOTION OF YOUNGER OFFICERS AND
DISINCENTIVE TO NAVAL SERVICE.  IF THE OFFICERS WHO FAILED TO BE
PROMOTED REMAINED IN THE SERVICE, THE PROMOTION OF YOUNGER OFFICERS
THROUGH THE RANKS WOULD BE RETARDED.  ACCORDINGLY, A BASIC "UP OR OUT"
PHILOSOPHY WAS DEVELOPED TO MAINTAIN EFFECTIVE LEADERSHIP BY
HEIGHTENING COMPETITION FOR THE HIGHER RANKS WHILE PROVIDING JUNIOR
OFFICERS WITH INCENTIVE AND OPPORTUNITY FOR PROMOTION.  IT IS FOR THIS
REASON, AND NOT MERELY BECAUSE OF ADMINISTRATIVE OR FISCAL POLICY
CONSIDERATIONS, THAT 6382 (A) REQUIRES THAT LIEUTENANTS BE DISCHARGED
WHEN THEY ARE "CONSIDERED AS HAVING FAILED OF SELECTION FOR PROMOTION
TO THE GRADE OF LIEUTENANT COMMANDER ... FOR THE SECOND TIME."  /5/
SIMILAR SELECTION-OUT RULES APPLY TO OFFICERS IN DIFFERENT RANKS WHO
ARE TWICE OVER FOR PROMOTION.  /6/ 

THE PHRASE "FAILED OF SELECTION FOR PROMOTION" IN 6382 (A) IS A
STATUTORY TERM OF ART. IT DOES NOT EMBRACE ALL ELIGIBLE OFFICERS WHO
HAVE BEEN CONSIDERED AND NOT SELECTED FOR PROMOTION.  BEFORE AN OFFICER
IS CONSIDERED TO HAVE FAILED OF SELECTION FOR THE FIRST TIME, HE MUST
HAVE BEEN PLACED WITHIN A "PROMOTION ZONE" ESTABLISHED BY THE SECRETARY
OF THE NAVY.  THE SECRETARY EACH YEAR ESTABLISHES "PROMOTION ZONES" OF
OFFICERS WHO WILL EITHER BE SELECTED FOR PROMOTION TO THE NEXT HIGHER
GRADE OR WHO WILL BE CONSIDERED TO HAVE FAILED OF SELECTION FOR
PROMOTION FOR THE FIRST TIME.  SEE 5764, 5776.  THE NUMBER OF OFFICERS
IN THE ZONES, ESTABLISHED FOR EACH GRADE, IS SET AT A LEVEL TO ENSURE A
FLOW OF PROMOTION CONSISTENT WITH THE APPROPRIATE TERMS OF SERVICE IN
EACH GRADE, SEE 5768, AND TO PROVIDE OPPORTUNITY FOR PROMOTION OF
OTHERS IN SUCCEEDING YEARS.  THE NUMBER OF OFFICERS WITHIN EACH ZONE IS
THUS BASED ON "A CONSIDERATION OF THE NUMBER OF VACANCIES ESTIMATED FOR
THE NEXT HIGHER GRADE IN EACH OF THE NEXT FIVE YEARS, THE NUMBER OF
OFFICERS WHO WILL BE ELIGIBLE FOR SELECTION IN EACH OF THOSE YEARS, AND
THE TERMS OF SERVICE THAT THOSE OFFICERS WILL HAVE COMPLETED."  5764
(A). 

WOMEN OFFICERS APPOINTED UNDER 10 U.S.C. 5590, INCLUDING ALL WOMEN LINE
OFFICERS AND MOST WOMEN OFFICERS IN THE STAFF CORPS.  /7/  IT PROVIDES
FOR MANDATORY DISCHARGE OF A WOMAN OFFICER APPOINTED UNDER 5590 WHEN
SHE "IS NOT ON A PROMOTION LIST"  /8/  AND "HAS COMPLETED 13 YEARS OF
ACTIVE COMMISSIONED SERVICE IN THE NAVY."  6401.  SECTION 6401 WAS
INITIALLY INTENDED APPROXIMATELY TO EQUATE THE LENGTH OF SERVICE OF
WOMEN OFFICERS BEFORE MANDATORY DISCHARGE FOR WANT OF PROMOTION WITH
THAT OF MALE LIEUTENANTS DISCHARGED UNDER 6382 (A).  /9/  SUBSEQUENTLY,
HOWEVER, CONGRESS SPECIFICALLY RECOGNIZED THAT THE PROVISIONS OF 6401
WOULD PROBABLY RESULT IN LONGER TENURE FOR WOMEN LIEUTENANTS THAN FOR
MALE LIEUTENANTS UNDER 6382. 

WHEN IT ENACTED LEGISLATION ELIMINATING MANY OF THE FORMER
RESTRICTIONS ON WOMEN OFFICERS' PARTICIPATION IN THE NAVAL SERVICE IN
1967, /10/  CONGRESS EXPRESSLY LEFT UNDISTURBED THE 13-YEAR TENURE
PROVISION OF 6401.  AND BOTH THE HOUSE AND THE SENATE REPORTS OBSERVED
THAT THE ATTRITION PROVISIONS GOVERNING WOMEN LINE OFFICERS WOULD
PARALLEL "PRESENT PROVISIONS WITH RESPECT TO MALE OFFICERS EXCEPT THAT
THE DISCHARGE OF MALE OFFICERS PROBABLY OCCURS ABOUT 2 YEARS EARLIER." 
S. REP. NO. 676, 90TH CONG., 1ST SESS., 12; H.R. REP. NO. 216, 90TH
CONG., 1ST SESS., 17.  /11/

        II 

IT IS AGAINST THIS BACKGROUND THAT WE MUST DECIDE WHETHER, AGREEABLY
TO THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, THE CONGRESS MAY
ACCORD TO WOMEN NAVAL OFFICERS A 13-YEAR TENURE OF COMMISSIONED SERVICE
UNDER 6401 BEFORE MANDATORY DISCHARGE FOR WANT OF PROMOTION, WHILE
REQUIRING UNDER 6382 (A) THE MANDATORY DISCHARGE OF MALE LIEUTENANTS
WHO HAVE BEEN TWICE PASSED OVER FOR PROMOTION BUT WHO, LIKE BALLARD,
MAY HAVE HAD LESS THAN 13 YEARS OF COMMISSIONED SERVICE.  IN ARGUING
THAT CONGRESS HAS ACTED UNCONSTITUTIONALLY, APPELLEE RELIES PRIMARILY
UPON THE COURT'S RECENT DECISIONS IN FRONTIERO V. RICHARDSON, 411 U.S.
677, AND REED V. REED, 404 U.S. 71. 

IN FRONTIERO THE COURT WAS CONCERNED WITH "THE RIGHT OF A FEMALE
MEMBER OF THE UNIFORMED SERVICES TO CLAIM HER SPOUSE AS A 'DEPENDENT'
FOR THE PURPOSES OF OBTAINING INCREASED QUARTERS ALLOWANCES AND MEDICAL
AND DENTAL BENEFITS UNDER 37 U.S.C. 401, 403, AND 10 U.S.C. 1072, 1076,
ON AN EQUAL FOOTING WITH MALE MEMBERS."  411 U.S., AT 678.  UNDER THE
GOVERNING STATUTES, A SERVICEMAN COULD AUTOMATICALLY CLAIM HIS SPOUSE
AS A "DEPENDENT," BUT A SERVICEWOMAN'S MALE SPOUSE WAS NOT CONSIDERED
TO BE A "DEPENDENT" UNLESS HE WAS SHOWN IN FACT TO BE DEPENDENT UPON
HIS WIFE FOR MORE THAN ONE-HALF OF HIS SUPPORT.  THE CHALLENGED
CLASSIFICATION WAS BASED EXCLUSIVELY ON GENDER, AND THE GOVERNMENT
CONCEDED THAT THE DIFFERENT TREATMENT OF MEN AND WOMEN SERVICE MEMBERS
WAS BASED SOLELY UPON CONSIDERATIONS OF ADMINISTRATIVE CONVENIENCE. 
THE COURT FOUND THIS DISPARITY OF TREATMENT CONSTITUTIONALLY INVALID. 
IN THE WORDS OF THE PLURALITY OPINION: 

"(ANY STATUTORY SCHEME WHICH DRAWS A SHARP LINE BETWEEN THE SEXES,
SOLELY FOR THE PURPOSE OF ACHIEVING ADMINISTRATIVE CONVENIENCE,
NECESSARILY COMMANDS 'DISSIMILAR TREATMENT FOR MEN AND WOMEN WHO ARE
... SIMILARLY SITUATED,' AND THEREFORE INVOLVES THE 'VERY KIND OF
ARBITRARY LEGISLATIVE CHOICE FORBIDDEN BY THE (CONSTITUTION)....'  REED
V. REED, 404 U.S., AT 77, 76.  WE THEREFORE CONCLUDE THAT BY ACCORDING
DIFFERENTIAL TREATMENT TO MALE AND FEMALE MEMBERS OF THE UNIFORMED
SERVICES FOR THE SOLE PURPOSE OF ACHIEVING ADMINISTRATIVE CONVENIENCE,
THE CHALLENGED STATUTES VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT INSOFAR AS THEY REQUIRE A FEMALE MEMBER TO PROVE THE
DEPENDENCY OF HER HUSBAND."  411 U.S., AT 690 - 691. 

THE CASE OF REED V. REED, SUPRA, INVOLVED QUITE SIMILAR
CONSIDERATIONS.  IN THAT CASE THE COURT CONSIDERED THE
CONSTITUTIONALITY OF AN IDAHO PROBATE CODE PROVISION THAT, IN
ESTABLISHING WHO WOULD ADMINISTER A DECEDENT'S ESTATE, GAVE A
"MANDATORY" PREFERENCE TO MEN OVER WOMEN WHEN THEY WERE IN THE SAME
DEGREE OF RELATIONSHIP TO THE DECEDENT.  THE IDAHO LAW PERMITTED NO
CONSIDERATION OF THE INDIVIDUAL QUALIFICATIONS OF PARTICULAR MEN OR
WOMEN AS POTENTIAL ADMINISTRATORS, BUT SIMPLY PERFERRED MALES IN ORDER
TO REDUCE PROBATE EXPENSES BY ELIMINATING CONTESTS OVER THE RELATIVE
QUALIFICATIONS OF MEN AND WOMEN OTHERWISE SIMILARLY SITUATED.  THE
COURT HELD THAT "(BY PROVIDING DISSIMILAR TREATMENT FOR MEN AND WOMEN
WHO ARE THUS SIMILARLY SITUATED, THE CHALLENGED SECTION VIOLATES THE
EQUAL PROTECTION CLAUSE."  404 U.S., AT 77. 

IN BOTH REED AND FRONTIERO THE CHALLENGED CLASSIFICATIONS BASED ON
SEX WERE PREMISED ON OVERBROAD GENERALIZATIONS THAT COULD NOT BE
TOLERATED UNDER THE CONSTITUTION.  IN REED, THE ASSUMPTION UNDERLYING
THE IDAHO STATUTE WAS THAT MEN WOULD GENERALLY BE BETTER ESTATE
ADMINISTRATORS THAN WOMEN.  IN FRONTIERO, THE ASSUMPTION UNDERLYING THE
FEDERAL ARMED SERVICES BENEFIT STATUTES WAS THAT FEMALE SPOUSES OF
SERVICEMEN WOULD NORMALLY BE DEPENDENT UPON THEIR HUSBANDS, WHILE MALE
SPOUSES OF SERVICEWOMEN WOULD NOT. 

IN CONTRAST, THE DIFFERENT TREATMENT OF MEN AND WOMEN NAVAL OFFICERS
UNDER 6382 AND 6401 REFLECTS, NOT ARCHAIC AND OVERBROAD
GENERALIZATIONS, BUT, INSTEAD, THE DEMONSTRABLE FACT THAT MALE AND
FEMALE LINE OFFICERS IN THE NAVY ARE NOT SIMILARLY SITUATED WITH
RESPECT TO OPPORTUNITIES FOR PROFESSIONAL SERVICE.  APPELLEE HAS NOT
CHALLENGED THE CURRENT RESTRICTIONS ON WOMEN OFFICERS' PARTICIPATION IN
COMBAT AND IN MOST SEA DUTY.  SPECIFICALLY, "WOMEN MAY NOT BE ASSIGNED
TO DUTY IN AIRCRAFT THAT ARE ENGAGED IN COMBAT MISSIONS NOR MAY THEY BE
ASSIGNED TO DUTY ON VESSELS OF THE NAVY OTHER THAN HOSPITAL SHIPS AND
TRANSPORTS."  10 U.S.C. 6015.  THUS, IN COMPETING FOR PROMOTION, FEMALE
LIEUTENANTS WILL NOT GENERALLY HAVE COMPILED RECORDS OF SEAGOING
SERVICE COMPARABLE TO THOSE OF MALE LIEUTENANTS.  IN ENACTING AND
RETAINING 6401, CONGRESS MAY THUS QUITE RATIONALLY HAVE BELIEVED THAT
WOMEN LINE OFFICERS HAD LESS OPPORTUNITY FOR PROMOTION THAN DID THEIR
MALE COUNTERPARTS, AND THAT A LONGER PERIOD OF TENURE FOR WOMEN
OFFICERS WOULD, THEREFORE, BE CONSISTENT WITH THE GOAL TO PROVIDE WOMEN
OFFICERS WITH "FAIR AND EQUITABLE CAREER ADVANCEMENT PROGRAMS."  H.R.
REP. NO. 216, SUPRA, AT 5.  CF. KAHN V. SHEVIN, 416 U.S. 351.  /12/ 

THE COMPLETE RATIONALITY OF THIS LEGISLATIVE CLASSIFICATION IS
UNDERSCORED BY THE FACT THAT IN CORPS WHERE MALE AND FEMALE LIEUTENANTS
ARE SIMILARLY SITUATED, CONGRESS HAS NOT DIFFERENTIATED BETWEEN THEM
WITH RESPECT TO TENURE.  THUS WOMEN STAFF OFFICERS NOT APPOINTED UNDER
5590 ARE SUBJECT TO THE SAME MANDATORY ATTRITION RULE OF 6382 (A) AS
ARE MALE OFFICERS.  THESE INCLUDE OFFICERS IN THE MEDICAL, DENTAL,
JUDGE ADVOCATE GENERAL'S, AND MEDICAL SERVICE CORPS.  SEE 10 U.S.C.
5574, 5578, 5578A, 5579.  CONVERSELY, ACTIVE MALE LIEUTENANTS WHO ARE
MEMBERS OF THE NURSE CORPS, LIKE FEMALE LIEUTENANTS IN THAT CORPS, ARE
WITHIN THE AMBIT OF 10 U.S.C. 6396 (C), WHICH CONTAINS A 13-YEAR TENURE
PROVISION LIKE 6401.  HC #509     IN BOTH REED AND FRONTIERO THE REASON
ASSERTED TO JUSTIFY THE CHALLENGED GENDER-BASED CLASSIFICATIONS WAS
ADMINISTRATIVE CONVENIENCE, AND THAT ALONE.  HERE, ON THE CONTRARY, THE
OPERATION OF THE STATUTES IN QUESTION RESULTS IN A FLOW OF PROMOTIONS
COMMENSURATE WITH THE NAVY'S CURRENT NEEDS AND SERVES TO MOTIVATE
QUALIFIED COMMISSIONED OFFICERS TO SO CONDUCT THEMSELVES THAT THEY MAY
REALISTICALLY LOOK FORWARD TO HIGHER LEVELS OF COMMAND.  THIS COURT HAS
RECOGNIZED THAT "IT IS THE PRIMARY BUSINESS OF ARMIES AND NAVIES TO
FIGHT OR BE READY TO FIGHT WARS SHOULD THE OCCASION ARISE."  TOTH V.
QUARLES, 350 U.S. 11, 17.  SEE ALSO ORLOFF V. WILLOUGHBY, 345 U.S. 83,
94.  THE RESPONSIBILITY FOR DETERMINING HOW BEST OUR ARMED FORCES SHALL
ATTEND TO THAT BUSINESS RESTS WITH CONGRESS, SEE UNITED STATES
CONSTITUTION, ART. I, 8, CLS. 12 - 14, AND WITH THE PRESIDENT.  SEE
UNITED STATES CONSTITUTION, ART. II, 2, CL. 1.  WE CANNOT SAY THAT, IN
EXERCISING ITS BROAD CONSTITUTIONAL POWER HERE, CONGRESS HAS VIOLATED
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  /13/ 

THE JUDGMENT IS REVERSED. 

/1/  TITLE 10 U.S.C. 6382 PROVIDES: 

"(A) EACH OFFICER ON THE ACTIVE LIST OF THE NAVY SERVING IN THE
GRADE OF LIEUTENANT, EXCEPT AN OFFICER IN THE NURSE CORPS, AND EACH
OFFICER ON THE ACTIVE LIST OF THE MARINE CORPS SERVING IN THE GRADE OF
CAPTAIN SHALL BE HONORABLY DISCHARGED ON JUNE 30 OF THE FISCAL YEAR IN
WHICH HE IS CONSIDERED AS HAVING FAILED OF SELECTION FOR PROMOTION TO
THE GRADE OF LIEUTENANT COMMANDER OR MAJOR FOR THE SECOND TIME. 
HOWEVER, IF HE SO REQUESTS, HE MAY BE HONORABLY DISCHARGED AT ANY TIME
DURING THAT FISCAL YEAR. 

        .         .         .         . . 

"(D) THIS SECTION DOES NOT APPLY TO WOMEN OFFICERS APPOINTED UNDER
DUTY." 

BALLARD'S SCHEDULED DISCHARGE CARRIED WITH IT AN ENTITLEMENT TO A
"LUMP-SUM" SEVERANCE PAYMENT OF APPROXIMATELY $15,000, 10 U.S.C. 6382
(C), BUT WOULD HAVE TERMINATED BALLARD'S TOTAL SERVICE TIME (INCLUDING
SEVEN YEARS OF ENLISTED SERVICE) SHORT OF THE 20 YEARS OF SERVICE
NECESSARY FOR SUBSTANTIALLY GREATER RETIREMENT BENEFITS. 

/2/  TITLE 10 U.S.C. 6401 (A) PROVIDES: 

"EACH WOMAN OFFICER ON THE ACTIVE LIST OF THE NAVY, APPOINTED UNDER
GRADE OF LIEUTENANT AND EACH WOMAN OFFICER ON THE ACTIVE LIST OF THE
MARINE CORPS WHO HOLDS A PERMANENT APPOINTMENT IN THE GRADE OF CAPTAIN
SHALL BE HONORABLY DISCHARGED ON JUNE 30 OF THE FISCAL YEAR IN WHICH-
, 

"(1) SHE IS NOT ON A PROMOTION LIST; AND 

"(2) SHE HAS COMPLETED 13 YEARS OF ACTIVE COMMISSIONED SERVICE IN
THE NAVY OR IN THE MARINE CORPS.  "HOWEVER, IF SHE SO REQUESTS, SHE MAY
BE HONORABLY DISCHARGED AT ANY TIME DURING THAT FISCAL YEAR." 

/3/ THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
PROVIDES IN PERTINENT PART THAT NO PERSON SHALL "BE DEPRIVED OF LIFE,
LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW."  ALTHOUGH IT
CONTAINS NO EQUAL PROTECTION CLAUSE AS DOES THE FOURTEENTH AMENDMENT,
THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE PROHIBITS THE FEDERAL
GOVERNMENT FROM ENGAGING IN DISCRIMINATION THAT IS "SO UNJUSTIFIABLE AS
TO BE VIOLATIVE OF DUE PROCESS."  BOLLING V. SHARPE, 347 U.S. 497,
499.  SEE ALSO SCHNEIDER V. RUSK, 377 U.S. 163, 168. 

/4/  SIMILARLY, THE AUTHORIZED STRENGTH OF THE SUPPLY CORPS AND THE
CIVIL ENGINEERS CORPS IS ESTABLISHED IN SET PROPORTIONS TO THE
AUTHORIZED NUMBER OF LINE OFFICERS.  10 U.S.C. 5404 (A).  MORE
COMPLICATED FORMULAS SET THE BOUNDS FOR THE NUMBERS OF STAFF OFFICERS
IN OTHER CORPS.  E.G., 5404 (B). 

/5/  SEE S. REP. NO. 2120, 75TH CONG., 3D SESS., 4.  PARTS OF THE
OFFICER PERSONNEL ACT OF 1947 THAT AFFECTED NAVAL OFFICERS WERE
CODIFIED IN 10 U.S.C. 5401 ET SEQ., BY THE ACT OF AUG. 10, 1956, 70A
STAT. 297.  TITLE 10 U.S.C. 6382 (A) IS A CODIFICATION OF 312 (H) OF
THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 860, AND THAT SECTION WAS
BASED, IN TURN, ON 12 (C) OF THE ACT OF JUNE 23, 1938, 52 STAT. 949. 

/6/  TITLE 10 U.S.C. 6382 (B) CALLS FOR THE MANDATORY DISCHARGE OF
LIEUTENANTS (JUNIOR GRADE) WHO TWICE FAIL TO BE SELECTED FOR PROMOTION
TO THE GRADE OF LIEUTENANT.  IN THE GRADES ABOVE LIEUTENANT, STATUTORY
PROVISIONS REQUIRE THE MANDATORY RETIREMENT, INSTEAD OF DISCHARGE, OF
OFFICERS TWICE PASSED OVER FOR PROMOTION.  10 U.S.C. 6376, 6379, 6380. 

/7/  SECTION 6401 DOES NOT APPLY TO WOMEN OFFICERS, APPOINTED
PURSUANT TO 10 U.S.C. 5574, 5578, 5578A, AND 5579, WHO ARE IN THE
MEDICAL, DENTAL, JUDGE ADVOCATE GENERAL'S, AND MEDICAL SERVICE CORPS. 
THESE WOMEN STAFF OFFICERS ARE, LIKE MALE OFFICERS, SUBJECT TO 6382
(A). 

/8/  THE REASON FOR THE "NOT ON A PROMOTION LIST" LANGUAGE OF 6401,
AS CONTRASTED WITH THE "FAILED OF SELECTION" LANGUAGE OF 6382 (A), IS
IN PART HISTORICAL.  SECTION 6401 WAS ENACTED AS 207 (J) OF THE WOMEN'S
ARMED SERVICES INTEGRATION ACT OF 1948, 62 STAT. 368.  THE "PROMOTION
ZONE" SYSTEM WAS NOT ESTABLISHED FOR WOMEN APPOINTED UNDER 10 U.S.C.
5590 UNTIL 1967.  PUB. L. 90 - 130, 81 STAT. 374 (1967).  SEE 5764
(D). 

/9/  SEE HEARINGS ON S. 1527 BEFORE THE SENATE COMMITTEE ON ARMED
SERVICES (SUBSEQUENTLY S. 1641), 80TH CONG., 1ST SESS., 39.  ALTHOUGH
THE STATUTORY ELIGIBILITY PERIODS FOR PROMOTION THROUGH THE RANKS TO
LIEUTENANT COMMANDER IS SOMEWHAT SHORTER, 10 U.S.C. 5751 (B), THE
NORMAL TIME IN SERVICE AS AN ENSIGN, LIEUTENANT (JUNIOR GRADE), AND
LIEUTENANT IS 12 YEARS UNDER PEACETIME CONDITIONS.  10 U.S.C. 5768
(A).  ACCORDINGLY, A MALE LINE OFFICER WHO HAD ACHIEVED THE RANK OF
LIEUTENANT WOULD TYPICALLY HAVE COMPLETED 12 YEARS OF SERVICE BEFORE
BEING CONSIDERED FOR THE RANK OF LIEUTENANT COMMANDER, AND WOULD HAVE
COMPLETED 13 YEARS OF SERVICE BEFORE BEING PASSED OVER TWICE FOR
PROMOTION TO THE GRADE OF LIEUTENANT COMMANDER. 

/10/  SEE PUB. L. 90 - 130, 81 STAT. 374 (1967).  THIS ACT REPEALED
NUMERICAL AND PERCENTAGE RESTRICTIONS ON WOMEN OFFICERS IN CERTAIN
GRADES, REMOVED RESTRICTIONS ON PERMANENT APPOINTMENT OF WOMEN OFFICERS
TO THE RANK OF CAPTAIN, AND AUTHORIZED WOMEN OFFICERS UNDER CERTAIN
CIRCUMSTANCES TO BE ELIGBLE FOR FLAG RANK.  CONGRESS ALSO ESTABLISHED A
"PROMOTION ZONE" SYSTEM FOR WOMEN OFFICERS AND INDICATED THAT THE
PROMOTION AND ATTRITION OF FEMALE OFFICERS WERE GENERALLY TO CORRESPOND
TO THE TREATMENT OF MALE OFFICERS.  S. REP. NO. 676, 90TH CONG., 1ST
SESS., 2. 

/11/  ACCORDING TO THE BRIEF OF THE SOLICITOR GENERAL, THE TENURE
DIFFERENTIAL HAS SINCE BEEN INCREASED BY THE REMOVAL OF TIME-IN-GRADE
RESTRICTIONS AND ACCELERATED PROMOTIONS RESULTING FROM THE VIETNAM
CONFLICT.  SEE EXECUTIVE ORDER NO. 11437, DEC. 2, 1968, 3 CFR 754 (1966
- 1970 COMP.).  THUS IN RECENT YEARS THE DISCHARGE OF MALE OFFICERS
UNDER 6382 (A) MAY HAVE OCCURRED ABOUT FOUR YEARS EARLIER THAN THE
DISCHARGE OF WOMEN OFFICERS UNDER 6401, INSTEAD OF THE TWO YEARS'
DIFFERENCE ACKNOWLEDGED BY CONGRESS IN 1967. 

/12/  THE DISSENTING OPINION ARGUES THAT, IN RETAINING 6401 IN 1967,
CONGRESS MAY NOT HAVE INTENDED TO GIVE A LONGER TENURE TO WOMEN LINE
OFFICERS THAN TO THEIR MALE COUNTERPARTS, BECAUSE "IT IS CERTAINLY
PLAUSIBLE TO CONCLUDE THAT CONGRESS CONTINUED TO BELIEVE, AS IT HAD IN
1948, THAT THE SEPARATION PROVISIONS FOR MEN AND WOMEN WOULD, GIVEN THE
OPPORTUNITY TO WORK PROPERLY, RESULT IN EQUAL AVERAGE TENURE FOR BOTH
SEXES.  POST, AT 517.  ATHIS CONCLUSION CANNOT, HOWEVER, BE RECONCILED
WITH CONGRESS' RECOGNITION THAT MANDATORY RETIREMENT PROVISIONS FOR
WOMEN LINE OFFICERS "PARALLEL PRESENT PROVISIONS WITH RESPECT TO MALE
OFFICERS EXCEPT THAT THE DISCHARGE OF MALE OFFICERS PROBABLY SESS., 17
(EMPHASIS ADDED).  ALTERNATIVELY, THE DISSENT SEEMS TO IMPLY THAT THE
SESS., 17.  ALTERNATIVELY, THE DISSENT SEEMS TO IMPLY THAT THE
"ANOMALOUS"  RETENTION IN 1967 OF THE 13-YEAR TENURE PROVISION OF 6401
MAY HAVE RESULTED FROM CONGRESSIONAL INADVERTENCE.  POST, AT 514 -
515.  BUT THIS VIEW CANNOT BE SQUARED WITH THE LEGISLATIVE HISTORY
EITHER.  A MAJOR FACTOR PROMPTING THE 1967 AMENDMENTS WAS CONGRESS'
EXPRESS CONCERN THAT UNLESS RESTRICTIONS ON PROMOTIONS OF WOMEN NAVAL
OFFICERS WERE LIFTED, THE OPERATION OF 6401 WOULD CAUSE EXCESSIVE
FORCED RETIREMENT OF WOMEN LIEUTENANTS.  IN DISCUSSING THE PROBLEM, THE
HOUSE REPORT EXPLICITLY DESCRIBED THE 13-YEAR PROVISION: 

"A PARTICULARLY SEVERE PROBLEM OF PROMOTION STAGNATION EXISTS AMONG
WAVE OFFICERS IN THE NAVY.  THE PRESENT GRADE LIMITATIONS ON PROMOTION
OF WAVE OFFICERS TO THE GRADES OF COMMANDER-LIEUTENANT COMMANDER HAVE
SO REDUCED THE VACANCIES THAT THE NAVY WILL BE FORCED TO DISCHARGE MOST
REGULAR WAVE LIEUTENANTS WHEN THEY REACH THEIR 13TH YEAR OF SERVICE IF
RELIEF IS NOT PROVIDED. 

        .         .         .   .         . 

"PRESENT LAW (SEC. 6401, TITLE 10, UNITED STATES CODE) PROVIDES THAT
WOMEN OFFICERS ON THE ACTIVE LIST OF THE NAVY IN THE GRADE OF
LIEUTENANT MUST BE DISCHARGED ON JUNE 30 OF THE FISCAL YEAR IN WHICH
THEY COMPLETE 13 YEARS OF ACTIVE COMMISSIONED SERVICE IF NOT ON A
PROMOTION LIST THAT YEAR.  THE NAVY ESTIMATES THAT WITHOUT LEGISLATIVE
RELIEF, THE ATTRITION AMONG WOMEN LINE LIEUTENANTS WILL AVERAGE 50
PERCENT OR MORE OVER THE NEXT 5 YEARS.  THE NAVY CONSIDERS SUCH HEAVY
ATTRITION UNACCEPTABLE."  H.R. REP. NO. 216, SUPRA, AT 6. 

IT IS THUS CLEAR THAT CONGRESS IN 1967 INTENTIONALLY RETAINED THE 13
YEAR TENURE PROVISION OF 6401, AND DID SO WITH SPECIFIC KNOWLEDGE THAT
IT GAVE WOMEN LINE OFFICERS A LONGER TENURE THAN THEIR MALE
COUNTERPARTS. 

/13/  WE OBSERVE THAT BECAUSE OF THE RESTRICTIONS THAT WERE REMOVED
FROM WOMEN OFFICERS' PARTICIPATION IN NAVAL SERVICE IN 1967, SEE ACT OF
NOV. 8, 1967, 81 STAT. 374; S. REP. NO. 676, 90TH CONG., 1ST SESS.,
MORE OPPORTUNITY HAS BECOME AVAILABLE FOR WOMEN OFFICERS.  WE ARE TOLD
BY THE SOLICITOR GENERAL THAT SINCE 1967, THE SECRETARY OF THE NAVY HAS
IMPLEMENTED A PROGRAM FOR ACCELERATION OF WOMEN OFFICERS' PROMOTION AND
THAT TODAY WOMEN ARE BEING CONSIDERED FOR PROMOTION WITHIN THE SAME
TIME PERIODS AS ARE MEN.  APPARENTLY BELIEVING THAT THE NEED FOR A
TENURE DIFFERENTIAL HAS SUBSIDED, THE DEPARTMENT OF DEFENSE HAS
SUBMITTED A BILL TO CONGRESS THAT WOULD SUBSTITUTE FOR 6401 THE SAME
RULE THAT GOVERNS MALE LIEUTENANTS.  SEE 2 (5) AND 4 (18) (L) OF H.R.
12405 (93D CONG., 2D SESS.), WHICH CONTAINS A NEW PROVISION AS A
PROPOSED REPLACEMENT OF BOTH 6382 AND 6401.  THESE DEVELOPMENTS NO MORE
THAN REINFORCE THE VIEW THAT IT IS FOR CONGRESS, AND NOT FOR THE
COURTS, TO DECIDE WHEN THE POLICY GOALS SOUGHT TO BE SERVED BY 6401 ARE
NO LONGER NECESSARY TO THE NAVY'S OFFICER PROMOTION ATTRITION
PROGRAMS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE COURT CONCLUDES THAT THE STATUTORY SCHEME WHICH RESULTS IN
DIFFERENT PERIODS OF TENURE FOR MALE AND FEMALE LINE LIEUTENANTS OF THE
NAVY DOES NOT CONTRAVENE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
BECAUSE "CONGRESS MAY...QUITE RATIONALLY HAVE BELIEVED THAT WOMEN LINE
OFFICERS HAD LESS OPPORTUNITY FOR PROMOTION THAN DID THEIR MALE
COUNTERPARTS, AND THAT A LONGER PERIOD OF TENURE FOR WOMEN OFFICERS
WOULD, THEREFORE, BE CONSISTENT WITH THE GOAL TO PROVIDE WOMEN OFFICERS
WITH 'FAIR AND EQUITABLE CAREER ADVANCEMENT PROGRAMS.'"  ANTE, AT 508. 
I BELIEVE, HOWEVER, THAT A LEGISLATIVE CLASSIFICATION THAT IS PREMISED
SOLELY UPON GENDER MUST BE SUBJECTED TO CLOSE JUDICIAL SCRUTINY. 
FRONTIERO V. RICHARDSON, 411 U.S. 677 (1973); KAHN V. SHEVIN, 416 U.S.
351 (1974) (BRENNAN, J., DISSENTING).  SUCH SUSPECT CLASSIFICATIONS CAN
BE SUSTAINED ONLY IF THE GOVERNMENT DEMONSTRATES THAT THE
CLASSIFICATION SERVES COMPELLING INTERESTS THAT CANNOT BE OTHERWISE
ACHIEVED.  HERE, THE GOVERNMENT AS MUCH AS CONCEDES THAT THE GENDER
BASED DISTINCTIONS IN SEPARATION PROVISIONS FOR NAVY OFFICERS FULFILL
NO COMPELLING PURPOSE. 

FURTHER, THE COURT GOES FAR TO CONJURE UP A LEGISLATIVE PURPOSE
WHICH MAY HAVE UNDERLAIN THE GENDER-BASED DISTINCTION HERE ATTACKED.  I
FIND NOTHING IN THE STATUTORY SCHEME OR THE LEGISLATIVE HISTORY TO
SUPPORT THE SUPPOSITION THAT CONGRESS INTENDED, BY ASSURING WOMEN BUT
NOT MEN LINE LIEUTENANTS IN THE NAVY A 13-YEAR TENURE, TO COMPENSATE
WOMEN FOR OTHER FORMS OF DISADVANTAGE VISITED UPON THEM BY THE NAVY. 
/1/ THUS, THE GENDER-BASED CLASSIFICATION OF WHICH APPELLEE COMPLAINS
IS NOT RELATED, RATIONALLY OR OTHERWISE, TO ANY LEGITIMATE LEGISLATIVE
PURPOSE FAIRLY TO BE INFERRED FROM THE STATUTORY SCHEME OR ITS HISTORY,
AND CANNOT BE SUSTAINED. 

        I 

AS THE COURT RECOUNTS, 6401 WAS ENACTED AS PART OF THE WOMEN'S ARMED
SERVICES INTEGRATION ACT OF 1948, 62 STAT. 368.  THIS ACT, WHILE
PROVIDING FOR THE FIRST TIME A PERMANENT ROLE FOR WOMEN IN THE
MILITARY, SEVERELY LIMITED THEIR CAREER OPPORTUNITIES.  AMONG OTHER
THINGS, IT PROVIDED THAT WOMEN IN THE NAVY COULD NOT BE PERMANENTLY
PROMOTED ABOVE THE RANK OF COMMANDER, AND IT SET THE NUMBER OF WOMEN
LIEUTENANTS, LIEUTENANT COMMANDERS, AND COMMANDERS AT A SMALL
PERCENTAGE OF THE NUMBER OF REGULAR WOMEN OFFICERS ON ACTIVE DUTY. 
PERHAPS BECAUSE THESE LIMITATIONS UPON PROMOTION OPPORTUNITIES MADE IT
IMPRACTICAL TO GUARANTEE WOMEN LINE OFFICERS PROMOTION AT ANY UNIFORM
RATE, THE PROMOTION ZONE SYSTEM PROVIDED FOR MEN BY THE OFFICER
PERSONNEL ACT OF 1947, 61 STAT. 860, WAS NOT APPLIED TO THEM.  AND, AS
EXPLAINED BY THE COURT, WITHOUT A PROMOTION ZONE SYSTEM, THE BASIS FOR
DETERMINING INVOLUNTARY SEPARATION UNDER 6382 (A), WHETHER AN OFFICER
HAS TWICE "FAILED OF SELECTION FOR PROMOTION," HAS NO MEANING.  /2/
THEREFORE, THE SEPARATION PROVISIONS FOR WOMEN LINE OFFICERS, GIVEN THE
REST OF THE STATUTORY PROVISIONS APPLICABLE TO THEM, HAD TO BE PEGGED
TO TIME SERVED RATHER THAN TO OPPORTUNITIES FOR PROMOTION.  THE NUMBER
OF YEARS SELECTED FOR WOMEN LINE LIEUTENANTS, 13, CORRESPONDED EXACTLY
TO THE NORMAL NUMBER OF YEARS CONGRESS INTENDED TO PRECEDE SEPARATION
FOR A MALE OFFICER NOT CHOSEN FOR PROMOTION.  SEE ANTE, AT 504 - 505,
N. 9.  /3/  THUS, CONGRESS' ORIGINAL PURPOSE IN ENACTING SLIGHTLY
DIFFERENT SEPARATION PROVISIONS FOR MEN AND WOMEN IS QUITE CERTAIN--TO
CREATE THE SAME TENURE IN YEARS FOR WOMEN LIEUTENANTS AS FOR THE
AVERAGE MALE LIEUTENANT BEFORE INVOLUNTARY SEPARATION WAS PERMITTED. 
HOWEVER, FOR REASONS NOT ENTIRELY CLEAR UPON THE RECORD IN THIS CASE,
THE PROMOTION ZONE SYSTEM FOR MEN DID NOT, AS ADMINISTERED BY THE NAVY,
RESULT IN THE NORMAL 13-YEAR TENURE FOR MEN BEFORE INVOLUNTARY
SEPARATION CONTEMPLATED BY 5764 AND 5768.  /4/  RATHER, IN 1967 THE
NORMAL TENURE FOR MEN SEEMS TO HAVE BEEN ABOUT 11 YEARS, SEE H.R. REP.
NO. 216, 90TH CONG., 1ST SESS., 17; S. REP. NO. 676, 90TH CONG., 1ST
SESS., 12; AND IN 1972, WHEN RESPONDENT WAS DUE FOR DISCHARGE, IT WAS
EIGHT OR NINE YEARS.  BRIEF FOR APPELLANTS 16. 

IN 1967, CONGRESS DECIDED TO ELIMINATE MANY OF THE PROVISIONS
RESTRICTING CAREER OPPORTUNITIES FOR WOMEN.  IN DOING SO IT WISHED, AS
THE COURT NOTES, TO PROVIDE WOMEN WITH "FAIR AND EQUITABLE CAREER
ADVANCEMENT PROGRAMS."  H.R. REP. NO. 216, SUPRA, AT 5.  HOWEVER,
CONTRARY TO THE COURT'S ASSUMPTION, CONGRESS DETERMINED TO ACHIEVE THIS
GOAL, NOT BY PROVIDING SPECIAL COMPENSATORY TREATMENT FOR WOMEN, BUT BY
REMOVING MOST OF THE RESTRICTIONS UPON THEM AND THEN SUBJECTING THEM TO
THE SAME PROVISIONS GENERALLY GOVERNING MEN.  ID., AT 3; S. REP. NO.
676, SUPRA, AT 2. 

FIRST, THE ENTIRE STRUCTURE OF THE 1967 ACT IS DIRECTED TOWARD
ASSIMILATING AS MUCH AS POSSIBLE THE PROMOTION STRUCTURE FOR WOMEN LINE
OFFICERS TO THAT OF MEN.  THE ACT, FOR EXAMPLE, PROVIDED FOR A
PROMOTION ZONE SYSTEM FOR WOMEN LINE OFFICERS IN THE NAVY, 10 U.S.C.
5764 (D), AND APPLIED THE "FAILURE OF SELECTION" DESIGNATION TO WOMEN
BY AMENDING 10 U.S.C. 5776.  /5/  THESE ADDITIONS MAKE THE RETENTION OF
13-YEAR TENURE FOR WOMEN LINE LIEUTENANTS SOMEWHAT ANOMALOUS, SINCE THE
"FAILURE OF SELECTION" DESIGNATION APPEARS TO HAVE NO FUNCTION EXCEPT
AS AN AID TO DETERMINING INVOLUNTARY SEPARATION.  THUS, AS THE HESITANT
LANGUAGE THE COURT USES IN DESCRIBING CONGRESS' POSSIBLE COMENSATORY
PURPOSE RECOGNIZES, IT IS IMPOSSIBLE TO DIVINE FROM THE STRUCTURE OF
THE ACT ITSELF A REASON FOR RETAINING THE 13-YEAR TENURE FOR WOMEN BUT
NOT FOR MEN. 

SECOND, THE LEGISLATIVE HISTORY OF THE 1967 ACT MAKES QUITE CLEAR
THAT CONGRESS' PURPOSE IN RETAINING THE 13-YEAR TENURE FOR WOMEN LINE
LIEUTENANTS WAS NOT TO TAKE ACCOUNT OF THE LIMITED OPPORTUNITIES
AVAILABLE TO WOMEN IN THE NAVY.  CONGRESS EXPLICITLY RECOGNIZED THAT IN
SOME INSTANCES INVOLUNTARY RETIREMENT AND SEPARATION PROVISIONS "PERMIT
WOMEN TO REMAIN ON ACTIVE DUTY FOR LONGER BASIS FOR THESE
DIFFERENCES."  S. REP. NO. 676, SUPRA, AT 2.  (EMPHASIS ADDED.)  SEE
BASIS FOR THESE DIFFERENCES."  S. REP. NO. 676, SUPRA, AT 2.  SEE H.R.
REP. NO. 216, SUPRA, AT 2 - 3; HEARING ON H.R. 4772, 4903, 5894, BEFORE
THE SENATE COMMITTEE ON ARMED SERVICES, 90TH CONG., 1ST SESS., 41
(1967).  THE 1967 ACT WAS TO "APPLY THE STANDARD ATTRITION PROVISIONS
OF MALE OFFICERS PROMOTION AND RETIREMENT LAWS TO WOMEN OFFICERS.  THE
ONLY EXCEPTION TO THIS WOULD BE THE SELECTIVE CONTINUATION OF NURSES." 
H.R. REP. NO. 216, SUPRA, AT 3.  /6/  SEE S. REP. NO. 676, SUPRA AT 2. 
IN LIGHT OF THESE STATEMENTS, CONGRESS COULD NOT HAVE HAD THE PURPOSE
OF COMPENSATING WOMEN LINE OFFICERS FOR THEIR INFERIOR POSITION IN THE
NAVY BY RETAINING LONGER TENURE PERIODS FOR WOMEN. 

MOREOVER, THE LEGISLATIVE HISTORY IS REPLETE WITH INDICATIONS OF A
DECISION NOT TO GIVE WOMEN ANY SPECIAL ADVANTAGE.  "THE PURPOSE OF THE
LEGISLATION HAS BEEN LIMITED TO THE REMOVAL OF ARBITRARY RESTRICTIONS. 
NO EFFORT HAS BEEN MADE TO PROVIDE SPECIAL ASSURANCES TO WOMEN
OFFICERS, AND NONE IS RECOMMENDED."  LETTER FROM GENERAL COUNSEL,
DEPARTMENT OF DEFENSE, IN S. REP. NO. 676, SUPRA, AT 5; H.R. REP. NO.
216, SUPRA, AT 9.  "THE PURPOSE OF THE BILL IS TO CREATE PARITY ONLY IN
RESPECT TO RECOGNIZING MERIT AND PERFORMANCE."  ID., AT 7.  SEE S. REP.
NO. 676, SUPRA, AT 3.  /7/ 

TO INFER A DETERMINATION PURPOSELY TO PERPETUATE A LONGER RETENTION
PERIOD FOR WOMEN LINE OFFICERS IS, THEREFORE, ENTIRELY TO MISCONCEIVE
CONGRESS' PERCEPTION OF THE PROBLEM AND OF THE PROPER SOLUTION.  WHILE
THE REASON FOR THE FAILURE TO REVISE 6382 AND 6401 IS NOT CLEAR, IT IS
CERTAINLY PLAUSIBLE TO CONCLUDE THAT CONGRESS CONTINUED TO BELIEVE, AS
IT HAD IN 1948, THAT THE SEPARATION PROVISIONS FOR MEN AND WOMEN WOULD,
GIVEN THE OPPORTUNITY TO WORK PROPERLY, RESULT IN EQUAL AVERAGE TENURE
FOR BOTH SEXES.  /8/

        II 

GIVEN THIS ANALYSIS OF THE RELATIONSHIP BETWEEN 6382 AND 6401, THE
DIFFERENCE IN TENURE WHICH RESULTED IN FACT FROM THE OPERATION OF THESE
INTEREST.  INDEED, THE GOVERNMENT CONCEDES AS MUCH IN DISCUSSING
PROPOSED H.R. 12405 (93D CONG., 2D SESS.), 2(5) AND 4 (18), TO WHICH
THE COURT REFERS, ANTE, AT 510 N. 13: "THE DEPARTMENT OF DEFENSE
CONSIDERS THAT THE SEPARATE RULE FOR WOMEN, WHILE SERVING A LEGITIMATE
GOVERNMENTAL PURPOSE ...  IS ON BALANCE NO LONGER NEEDED AS A MATTER OF
MILITARY PERSONNEL POLICY."  BRIEF FOR APPELLANTS 18.  (EMPHASIS
SUPPLIED.)  SINCE THE EXECUTIVE DEPARTMENT MOST INTIMATELY CONCERNED
WITH THE PROMOTION POLICY IN THE NAVY CAN PERCEIVE NO NEED FOR THE
GENDER-BASED CLASSIFICATION UNDER ATTACK, THE INTEREST SERVED BY THE
CLASSIFICATION, IF ANY, CAN HARDLY BE OVERRIDING OR COMPELLING.  /9/ 

FURTHER, WHILE I BELIEVE THAT "PROVIDING SPECIAL BENEFITS FOR A
NEEDY SEGMENT OF SOCIETY LONG THE VICTIM OF PURPOSEFUL DISCRIMINATION
AND NEGLECT" CAN SERVE "THE COMPELLING ... INTEREST OF ACHIEVING
EQUALITY FOR SUCH GROUPS,"  KAHN V. SHEVIN, 416 U.S., AT 358 - 359
(BRENNAN, J., DISSENTING), I COULD NOT SUSTAIN THIS STATUTORY SCHEME
EVEN IF I ACCEPTED THE COURT'S SUPPOSITION THAT SUCH A PURPOSE LAY
BEHIND THIS CLASSIFICATION.  CONTRARY TO THE COURT'S INTIMATION, ANTE,
AT 508, WOMEN DO NOT COMPETE DIRECTLY WITH MEN FOR PROMOTION IN THE
NAVY.  RATHER, SELECTION BOARDS FOR WOMEN ARE SEPARATELY CONVENED, 10
U.S.C. 5704, THE NUMBER OF WOMEN OFFICERS TO BE SELECTED FOR PROMOTION
IS SEPARATELY DETERMINED, 10 U.S.C. 5760, PROMOTION ZONES FOR WOMEN ARE
SEPARATELY DESIGNATED, 10 U.S.C. 5764, AND WOMEN'S FITNESS FOR
PROMOTION IS JUDGED AS COMPARED TO OTHER WOMEN, 10 U.S.C. 5707.  IN
THIS SITUATION, IT IS HARD TO SEE HOW WOMEN ARE DISADVANTAGED IN THEIR
OPPORTUNITY FOR PROMOTION BY THE FACT THAT THEIR DUTIES IN THE NAVY ARE
LIMITED, OR HOW INCREASING THEIR TENURE BEFORE SEPARATION FOR
NONPROMOTION IS NECESSARY TO COMPENSATE FOR OTHER DISADVANTAGES. 

    III 

THE COURT SUGGESTS NO PURPOSE OTHER THAN COMPENSATION FOR
DISADVANTAGES OF WOMEN WHICH MIGHT JUSTIFY THIS GENDER-BASED
CLASSIFICATION.  I AGREE THAT THE "UP AND OUT" PHILOSOPHY "WAS
DEVELOPED TO MAINTAIN EFFECTIVE LEADERSHIP BY HEIGHTENING COMPETITION
FOR THE HIGHER RANKS WHILE PROVIDING JUNIOR OFFICERS WITH INCENTIVE AND
OPPORTUNITY FOR PROMOTION."  ANTE, AT 502 - 503.  BUT THE PURPOSE
BEHIND THE "UP AND OUT" PHILOSOPHY APPLIES AS WELL TO WOMEN AS TO MEN. 
THE ISSUE HERE IS NOT WHETHER THE TREATMENT ACCORDED EITHER WOMEN OR
MEN UNDER THE STATUTORY SCHEME WOULD, IF APPLIED EVENHANDEDLY TO BOTH
SEXES, FORWARD A LEGITIMATE OR COMPELLING STATE INTEREST, BUT WHETHER
THE DIFFERENCES IN THE PROVISIONS APPLICABLE TO MEN AND WOMEN CAN BE
JUSTIFIED BY A GOVERNMENTAL PURPOSE.  /10/ 

FOR THIS SAME REASON, THE INVOCATION OF THE DEFERENCE DUE CONGRESS
IN DETERMINING HOW BEST TO ASSURE THE READINESS OF OUR ARMED FORCES FOR
BATTLE CANNOT SETTLE THE ISSUE BEFORE US.  AS FRONTIERO V. RICHARDSON,
411 U.S. 677 (1973), ILLUSTRATES, THE FACT THAT AN EQUAL PROTECTION
CLAIM ARISES FROM STATUTES CONCERNING MILITARY PERSONNEL POLICY DOES
NOT ITSELF MANDATE DEFERENCE TO THE CONGRESSIONAL DETERMINATION, AT
LEAST IF THE SEX-BASED CLASSIFICATION IS NOT ITSELF RELEVANT TO AND
JUSTIFIED BY THE MILITARY PURPOSES. 

THUS, THE VALIDITY OF THE STATUTORY SCHEME MUST STAND OR FALL UPON
THE COURT'S ASSERTED COMPENSATORY GOAL.  YET, AS THE ANALYSIS IN PART
I, SUPRA, DEMONSTRATES, THIS PURPOSE WAS NOT IN FACT BEHIND EITHER THE
ORIGINAL ENACTMENT OF 6401 OR ITS RETENTION IN 1967.  WHILE WE HAVE IN
THE PAST EXERCISED OUR IMAGINATIONS TO CONCEIVE OF POSSIBLE RATIONAL
JUSTIFICATIONS FOR STATUTORY CLASSIFICATIONS, SEE MCGOWAN V. MARYLAND,
366 U.S. 420, 425 - 428 (1961), WE HAVE RECENTLY DECLINED TO
MANUFACTURE JUSTIFICATIONS IN ORDER TO SAVE AN APPARENTLY INVALID
STATUTORY CLASSIFICATION.  CF. JAMES V. STRANGE, 407 U.S. 128 (1972);
WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164 (1972).  MOREOVER,
WE HAVE ANALYZED ASSERTED GOVERNMENTAL INTERESTS TO DETERMINE WHETHER
THEY WERE IN FACT THE LEGISLATIVE PURPOSE OF A STATUTORY
CLASSIFICATION, EISENSTADT V. BAIRD, 405 U.S. 438, 442 - 443 (1972),
AND HAVE LIMITED OUR INQUIRY TO THE LEGISLATURE'S STATED PURPOSES WHEN
THESE PURPOSES ARE CLEARLY SET OUT IN THE STATUTE OR ITS LEGISLATIVE
HISTORY.  JOHNSON V. ROBINSON, 415 U.S. 361, 376 (1974).  NEVER, TO MY
KNOWLEDGE, HAVE WE ENDEAVORED TO SUSTAIN A STATUTE UPON A SUPPOSITION
ABOUT THE LEGISLATURE'S PURPOSE IN ENACTING IT WHEN THE ASSERTED
JUSTIFICATION CAN BE SHOWN CONCLUSIVELY NOT TO HAVE UNDERLAIN THE
CLASSIFICATION IN ANY WAY.  /11/ 

SINCE THE GOVERNMENT HERE HAS ADVANCED NO GOVERNMENTAL INTEREST
FAIRLY TO BE GLEANED FROM 6382 AND 6401 OR THEIR HISTORY WHICH CAN
JUSTIFY THIS GENDER-BASED CLASSIFICATION, I WOULD AFFIRM THE JUDGMENT
BELOW. 

/1/  INDEED, I FIND QUITE TROUBLESOME THE NOTION THAT A GENDER-BASED
DIFFERENCE IN TREATMENT CAN BE JUSTIFIED BY ANOTHER, BROADER, GENDER
BASED DIFFERENCE IN TREATMENT IMPOSED DIRECTLY AND CURRENTLY BY THE
NAVY ITSELF.  WHILE IT IS TRUE THAT THE RESTRICTIONS UPON WOMEN
OFFICERS' OPPORTUNITIES FOR PROFESSIONAL SERVICE ARE NOT HERE DIRECTLY
UNDER ATTACK, THEY ARE OBVIOUSLY IMPLICATED ON THE COURT'S CHOSEN
GROUND FOR DECISION, AND THE COURT OUGHT AT LEAST TO CONSIDER WHETHER
THEY MAY BE VALID BEFORE SUSTAINING A PROVISION IT CONCEIVES TO BE
BASED UPON THEM. 

/2/  ALSO, EVEN IF IT WERE POSSIBLE TO DEVISE SOME ALTERNATIVE WAY
OF DECIDING WHEN A WOMAN OFFICER HAD "FAILED OF SELECTION FOR
PROMOTION,"  THE LIMITATION UPON PROMOTION OPPORTUNITIES FOR WOMEN
MEANT THAT RETENTION UNTIL TWO FAILURES OF SELECTION COULD HAVE BEEN
INDEFINITE RETENTION.  IN 1967, IN FACT, THE STATUTORY GRADE
LIMITATIONS UPON PROMOTIONS FOR WOMEN HAD PRODUCED SUCH LIMITED
VACANCIES IN THE UPPER RANKS THAT, BUT FOR THE FACT THAT SOME OF THE
LIMITATIONS WERE REMOVED BY THE 1967 ACT, PROMOTIONS OF LIEUTENANTS IN
THE WAVES WOULD HAVE HAD TO BE SUSPENDED ALTOGETHER FOR FOUR OR FIVE
YEARS.  H.R. REP. NO. 216, 90TH CONG., 1ST SESS., 6 (1967).  SEE
HEARINGS ON H.R. 5894 BEFORE SUBCOMMITTEE NO.1 OF THE HOUSE COMMITTEE
ON ARMED SERVICES, 90TH CONG., 1ST SESS., 384 (1967).  IF INVOLUNTARY
SEPARATION HAD BEEN KEYED TO FAILURE OF SELECTION, NO WAVE LINE
LIEUTENANTS COULD HAVE BEEN SEPARATED DURING THOSE FIVE YEARS. 

/3/  SECTION 5768 SETS OUT THE NORMAL TIMES OF SERVICE FOR MALE
OFFICERS IN THE LINE OF THE NAVY.  SECTION 5764, THE SECTION
ESTABLISHING THE PROMOTION ZONE SYSTEM, SPECIFIES THAT THE NUMBER OF
OFFICERS IN THE PROMOTION ZONE EACH YEAR SHALL BE CHOSEN "IN ORDER TO
MAINTAIN A FLOW OF PROMOTION CONSISTENT WITH THE TERMS OF SERVICE SET
OUT IN SECTION 5768 ... AND IN ORDER BEST TO ASSURE TO INDIVIDUALS IN
SUCCEEDING YEARS EQUALITY OF OPPORTUNITY FOR PROMOTION."  THUS, THE
"NORMAL TERMS OF SERVICE," 5768, WERE TO BE ACHIEVED THROUGH THE
ADMINISTRATIVE DETERMINATION OF PROMOTION ZONES EACH YEAR. 

/4/  THE EXPLANATION SEEMINGLY LIES IN THE PROVISIONS PERMITTING
SUSPENSION OF THESE SECTIONS.  SECTION 48 OF THE ACT OF AUG. 10, 1956,
PROVIDED THAT: 

"(A) EXCEPT AS THEY MAY APPLY TO WOMEN OFFICERS OF THE REGULAR NAVY
... APPOINTED UNDER SECTION 5590 OF TITLE 10,... THE FOLLOWING SECTIONS
OF TITLE 10 CEASE TO OPERATE WHENEVER THE NUMBER OF MALE OFFICERS
SERVING ON ACTIVE DUTY IN THE GRADE OF ENSIGN OR ABOVE THE LINE OF THE
NAVY DOES NOT EXCEED THE NUMBER OF MALE OFFICERS HOLDING PERMANENT
APPOINTMENTS IN THE GRADE OF ENSIGN OR ABOVE ON THE ACTIVE LIST IN THE
LINE OF THE REGULAR NAVY:  SECTIONS ... 5764 - 5770 ..."  70A STAT.
639.  ALSO, 10 U.S.C. 5785 PROVIDES THAT: 

"(B) DURING A WAR OR NATIONAL EMERGENCY, THE PRESIDENT MAY SUSPEND
ANY PROVISION OF THE PRECEDING SECTIONS OF THIS CHAPTER RELATING TO
OFFICERS OF THE NAVY..., OTHER THAN WOMEN OFFICERS APPOINTED UNDER

BECAUSE THESE SECTIONS DO NOT APPLY TO WOMEN COVERED BY 6401, ANY
SUSPENSIONS COULD HAVE THE EFFECT OF SHORTENING NORMAL TENURE FOR MEN
WITHOUT AFFECTING THE TENURE OF WOMEN.  SEE ANTE, AT 505 N. 11. 

/5/  OTHER EXAMPLES OF THE DEGREE TO WHICH WOMEN OFFICERS WERE
SUBJECTED TO THE SAME PROMOTION AND RETENTION SYSTEM AS MEN ARE: 

(1) THE AMENDMENT OF 10 U.S.C. 5771 SO THAT WOMEN OFFICERS ON A
PROMOTION LIST, LIKE MEN, CAN BE PROMOTED AS SOON AS VACANCIES OCCUR. 
THIS WAS DONE TO PREVENT A DELAY OF SIX TO EIGHT MONTHS IN PROMOTION
WHICH CAUSED "WOMEN OFFICERS TO FALL BEHIND THEIR MALE
CONTEMPORARIES."  H.R. REP. NO.216, SUPRA, AT 15; S. REP. NO. 676, 90TH
CONG., 1ST SESS., 10. 

(2) THE AMENDMENT OF 10 U.S.C. 5704, 5711, AND RELATED SECTIONS SO
THAT ALL WOMEN LINE OFFICERS ON ACTIVE DUTY, INCLUDING RESERVE
OFFICERS, WILL, LIKE ALL MEN LINE OFFICERS ON ACTIVE DUTY, BE
CONSIDERED FOR PROMOTION BY THE SAME SELECTION BOARDS AND IN THE SAME
WAY. 

ASIDE FROM 6401, SOME DISTINCTIONS BETWEEN THE PROMOTION SYSTEMS FOR
MALE AND FEMALE LINE OFFICERS DID SURVIVE THE 1967 ACT.  SEE, E.G., 10
U.S.C. 5707 (DIFFERENCE BETWEEN MEN AND WOMEN ON STANDARD FOR SELECTION
BELOW LIEUTENANT COMMANDER).  IT IS SIGNIFICANT, HOWEVER, THAT AS A
RESULT OF THE 1967 AMENDMENTS, THE TENURE IN YEARS FOR UNRESTRICTED MEN
AND WOMEN LINE OFFICERS IS THE SAME FOR ALL GRADES IN WHICH INVOLUNTARY
SEPARATION OR RETIREMENT IS LINKED FOR BOTH TO YEARS SERVED.  COMPARE
10 U.S.C. 6376 AND 6379 WITH 6398; 6380 WITH 6400.  HOWEVER, IN MOST
INSTANCES MEN CANNOT BE INVOLUNTARILY RETIRED UNTIL THEY HAVE TWICE
FAILED OF SELECTION AND REACHED THE REQUIRED TENURE IN YEARS, WHILE FOR
WOMEN FAILURE TO BE PROMOTED WITHIN THE REQUISITE NUMBER OF YEARS IS
SUFFICIENT.     /6/  CONGRESSMAN RIVERS, CHAIRMAN OF THE HOUSE
COMMITTEE ON ARMED SERVICES, STATED FLATLY DURING FLOOR DEBATE ON H.R.
5894 THAT THE BILL ASSURED THAT WOMEN "HAVE THE SAME TENURE AS MALE
OFFICERS OF THE SAME GRADE."  113 CONG. REC. 11303 (MAY 1, 1967). 

/7/  SENATOR THURMOND, FLOOR MANAGER OF THE BILL, MADE MUCH THE SAME
POINT DURING HEARINGS ON THE BILL.  HE SAID: "(THE PURPOSE OF THIS BILL
IS NOT TO PROVIDE SPECIAL PROMOTIONAL OPPORTUNITIES FOR WOMEN OR TO
GIVE THEM ANY ADVANTAGE, BUT IT IS TO PLACE THEM ON A PARITY WITH OR
GIVE THEM EQUAL OPPORTUNITIES...."  HEARING ON H.R. 4772, 4903, 5894
BEFORE THE SENATE COMMITTEE ON ARMED SERVICES, 90TH CONG., 1ST SESS.,
46 (1967). 

/8/  IN ADDITION, THERE ARE INDICATIONS IN THE HEARINGS ON THE BILL
THAT THE REASON FOR NOT CHANGING 6382 AND 6401 WAS THAT THE PROMOTIONAL
SYSTEMS FOR ALL SERVICES WERE THEN UNDER REVIEW, AND THAT THE ARMED
SERVICES THERFORE DID NOT WANT TO CHANGE IN THE INTERIM PROVISIONS
BELIEVED BASICALLY TO APPLY EQUITABLY TO BOTH SEXES.  SEE HEARINGS ON
H.R. 5894 BEFORE SUBCOMMITTEE NO.1 OF THE HOUSE COMMITTEE ON ARMED
SERVICES, 90TH CONG., 1ST SESS., 383 (1967) (REMARKS OF ASSISTANT
SECRETARY MORRIS); HEARINGS, SENATE COMMITTEE ON ARMED SERVICES, SUPRA,
AT 44 (REMARKS OF GENERAL BERG). 

/9/  THE COURT COMMENTS THAT THE SUBMISSION OF H.R. 12405 "NO MORE
THAN REINFORCES) THE VIEW THAT IT IS FOR CONGRESS, AND NOT FOR THE
COURTS, TO DECIDE WHEN THE POLICY GOALS SOUGHT TO BE SERVED BY 6401 ARE
NO LONGER NECESSARY TO THE NAVY'S OFFICER PROMOTION AND ATTRITION
PROGRAMS."  ANTE, AT 510 N. 13.  BUT THE COURT DOES NOT, AND COULD NOT,
SHOW THAT THE GENDER-BASED CLASSIFICATION UNDERLYING 6401 WAS EVER
NECESSARY TO THE NAVY'S PROGRAM; IT ONLY VENTURES THAT CONGRESS "MAY
... RATIONALLY," ANTE, AT 508 (EMPHASIS SUPPLIED), HAVE BELIEVED THE
POLICY TO BE WISE OR FAIR.  FURTHER, THE CLOSE SCRUTINY WHICH I BELIEVE
GENDER-BASED CLASSIFICATIONS REQUIRE NECESSITATES THAT COURTS EVALUATE
BOTH THE STRENGTH OF THE ASSERTED INTEREST AND THE NEED FOR THE MEANS
CHOSEN TOWARD THAT END.  IMPLICIT IN THIS TASK IS THAT THE COURTS DO
NOT NECESSARILY ACCEPT THE LEGISLATURE'S DECISIONS ABOUT THE NEED FOR
CERTAIN LEGISLATION WHEN GENDER-BASED DISTINCTIONS ARE INVOLVED. 

/10/  IN NEITHER REED V. REED, 404 U.S. 71 (1971), NOR FRONTIERO V.
RICHARDSON, 411 U.S. 677 (1973), WAS IT DOUBTED THAT THE STATUTES IN
QUESTION FORWARDED LEGITIMATE GOVERNMENTAL GOALS, ABSENT THE
CLASSIFICATIONS BY SEX.  IN REED, THE COURT EXPRESSLY NOTED THAT "THE
OBJECTIVE OF REDUCING THE WORKLOAD ON PROBATE COURTS BY ELIMINATING ONE
CLASS OF CONTESTS IS NOT WITHOUT SOME LEGITIMACY," 404 U.S., AT 76, AND
IT NOTED THAT THE STATUTORY SCHEME SET UP NONSEX-BASED CLASSIFICATIONS
TOWARD THE SAME END, WHICH IT SEEMINGLY APPROVED.  ID., AT 77. 
SIMILARLY, IN FRONTIERO, THE INQUIRY FOCUSED UPON THE "DIFFERENCE IN
TREATMENT," 411 U.S., AT 679, ACCORDED WOMEN AND MEN IN DETERMINING
ELIGIBILITY FOR DEPENDENTS' BENEFITS, NOT UPON THE STRENGTH OF THE
GOVERNMENT'S INTEREST IN ACCORDING DEPENDENTS' BENEFITS TO MEMBERS OF
THE ARMED SERVICES.  THUS, I FAIL TO SEE HOW THE STRENGTH OF THE
GOVERNMENTAL INTEREST IN THE "UP AND OUT" SYSTEM CAN DISTINGUISH REED
OR FRONTIERO.  SEE ALSO JAMES V. STRANGE, 407 U.S. 128, 141 (1972);
WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164, 173 (1972). 

/11/  INDEED, TO DO SO IS TO UNDERMINE THE VERY PREMISES OF
DEFERENCE TO LEGISLATIVE DETERMINATION.  IF A LEGISLATURE, CONSIDERING
THE COMPETING FACTORS, DETERMINES THAT IT IS WISE POLICY TO TREAT TWO
GROUPS OF PEOPLE DIFFERENTLY IN PURSUIT OF A CERTAIN GOAL, COURTS OFTEN
DEFER TO THAT LEGISLATIVE DETERMINATION.  BUT WHEN A LEGISLATURE HAS
DECIDED NOT TO PURSUE A CERTAIN GOAL, UPHOLDING A STATUTE ON THE BASIS
OF THAT GOAL IS NOT PROPERLY DEFERENCE TO A LEGISLATIVE DECISION AT
ALL; IT IS DEFERENCE TO A DECISION WHICH THE LEGISLATURE COULD HAVE
MADE BUT DID NOT.  SEE GUNTHER, FOREWORD: IN SEARCH OF EVOLVING
DOCTRINE ON A CHANGING COURT: A MODEL FOR A NEWER EQUAL PROTECTION, 86
HARV. L. REV. 1, 44 - 45 (1972). 

MR. JUSTICE WHITE, DISSENTING. 

AGREEING FOR THE MOST PART WITH MR. JUSTICE BRENNAN'S DISSENTING
OPINION, I ALSO DISSENT FROM THE JUDGMENT OF THE COURT. 

HARRIET S. SHAPIRO ARGUED THE CAUSE FOR APPELLANTS.  ON THE BRIEFS
WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL HILLS, DEPUTY
SOLICITOR GENERAL LAFONTANT, EDMUND W. KITCH, ROBERT E. KOPP, AND
MICHAEL KIMMEL. 

CHARLES R. KHOURY, JR., ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON
THE BRIEF WAS MORRIS S. DEES, JR.
..END :



FUSARI V. STEINBERG, 419 U.S. 379 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT

        NO. 73 - 848.  ARGUED OCTOBER 15 - 16, 1974--DECIDED
JANUARY

   14, 1975; 364 F.SUPP.  922, VACATED AND REMANDED. 


    THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT HOLDING THAT THE

  CONNECTICUT "SEATED INTERVIEW" PROCEDURES FOR ASSESSING

  CONTINUING ELIGIBILITY FOR UNEMPLOYMENT COMPENSATION BENEFITS

  VIOLATED DUE PROCESS IS VACATED AND THE CASE IS REMANDED FOR

  RECONSIDERATION IN LIGHT OF INTERVENING CHANGES IN CONNECTICUT

  LAW.  PP. 385 - 389. 

POWELL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

 BURGER, C.J., FILED A CONCURRING OPINION, POST, P. 390. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE COMES TO US ON APPEAL FROM A THREE-JUDGE DISTRICT COURT
DETERMINATION THAT THE CONNECTICUT "SEATED INTERVIEW" PROCEDURES FOR
ASSESSING CONTINUING ELIGIBILITY FOR UNEMPLOYMENT COMPENSATION BENEFITS
VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  364 F.
SUPP. 922 (CONN. 1973).  OUR INDEPENDENT EXAMINATION OF CONNECTICUT LAW
REVEALS THAT THE STATE SIGNIFICANTLY REVISED ITS UNEMPLOYMENT
COMPENSATION SYSTEM FOLLOWING THE DISTRICT COURT'S DECISION.  SOME OF
THE AMENDMENTS ARE DESIGNED TO AMELIORATE PROBLEMS THAT THE COURT
IDENTIFIED.  IN THESE CIRCUMSTANCES, WE THINK IT INAPPROPRIATE TO
DECIDE THE ISSUES TENDERED BY THE PARTIES.  WE THEREFORE VACATE THE
DECISION OF THE DISTRICT COURT AND REMAND FOR RECONSIDERATION IN LIGHT
OF THE INTERVENING CHANGES IN CONNECTICUT LAW. 

        I 

IN CONNECTICUT, UNEMPLOYMENT COMPENSATION BENEFITS ARE PAID FROM A
TRUST FUND MAINTAINED BY EMPLOYER CONTRIBUTIONS.  APPELLANT FUSARI,
STATE COMMISSIONER OF LABOR AND ADMINISTRATOR OF THE UNEMPLOYMENT
COMPENSATION ACT, ADMINISTERS THE FUND.  UNDER THE CONNECTICUT STATUTE,
A CLAIMANT FIRST MUST FILE AN INITIATING CLAIM AND ESTABLISH HIS
GENERAL ENTITLEMENT TO RECEIVE STATE UNEMPLOYMENT COMPENSATION
BENEFITS.  CONN. GEN. STAT. REV. 31 - 230 AND 31 - 235 (1973). 
THEREAFTER, THE CLAIMANT MUST REPORT TO THE LOCAL UNEMPLOYMENT
COMPENSATION OFFICE BIWEEKLY AND DEMONSTRATE CONTINUED ELIGIBILITY FOR
BENEFITS FOR THE PRECEDING TWO-WEEK PERIOD.  THE CLAIMANT MUST SUBMIT
FORMS SWEARING TO HIS AVAILABILITY FOR WORK AND TO HIS REASONABLE
EFFORTS TO OBTAIN EMPLOYMENT DURING THE PERIOD IN QUESTION.  HE ALSO
MUST SUBMIT A FORM LISTING THE PERSONS TO WHOM HE HAS APPLIED FOR
EMPLOYMENT DURING THE PRECEDING TWO WEEKS. 

UPON RECEIPT OF THE FORMS, THE PAYING OFFICIAL MAY MAKE ROUTINE
INQUIRIES.  IF NO SERIOUS QUESTION OF ELIGIBILITY ARISES, IMMEDIATE
PAYMENT IS MADE.  IF, HOWEVER, THE FORMS OR RESPONSES TO QUESTIONS
RAISE SUSPICION OF POSSIBLE DISQUALIFICATION, THE CLAIMANT IS DIRECTED
TO A "SEATED INTERVIEW" WITH A FACTFINDING EXAMINER FOR A MORE THOROUGH
INQUIRY INTO THE POSSIBLE FACTORS THAT MIGHT RENDER HIM INELIGIBLE FOR
BENEFITS.  ALTHOUGH THE CLAIMANT BEARS THE BURDEN OF ESTABLISHING
ELIGIBILITY, NORTHRUP V. ADMINISTRATOR, 148 CONN. 475, 480, 172 A. 2D
390, 393 (1961); WASKIEWICZ V. EGAN, 15 CONN. SUPP. 286, 287 (1947),
DOUBTFUL CASES ARE TO BE DECIDED IN HIS FAVOR.  CONN. GEN. STAT. REV.
31 - 274 (C). 

AN EXAMINER'S FAVORABLE DETERMINATION OF ELIGIBILITY RESULTS IN
IMMEDIATE PAYMENT OF BENEFITS.  IF, HOWEVER, THE EXAMINER CONCLUDES
THAT THE CLAIMANT IS INELIGIBLE, NO PAYMENT IS MADE.  WITHIN A FEW DAYS
THE CLAIMANT RECEIVES A WRITTEN STATEMENT INDICATING THE REASONS FOR
DISQUALIFICATION AND NOTIFYING HIM OF THE RIGHT TO APPELA.  BENEFITS
FOR THE PERIOD IN QUESTION NORMALLY ARE WITHHELD PENDING RESOLUTION OF
THE ADMINISTRATIVE APPELA.  /1/  THE STATE'S POLICY, SOMETIMES HONORED
IN THE BREACH, IS THAT PENDENCY OF AN APPELA DOES NOT AFFECT THE
CLAIMANT'S ELIGIBILITY TO RECEIVE BENEFITS FOR SUBSEQUENT PERIODS. 
/2/ 

THIS APPEAL ARISES FROM A CLASS ACTION CHALLENGING THE LEGALITY OF
THE PROCEDURES USED FOR DETERMINING CONTINUED ELIGIBILITY FOR
BENEFITS.  /3/  APPELLEES ASSERTED THAT CONNECTICUT VIOLATED THE
FEDERAL STATUTORY REQUIREMENT THAT STATE PROCEDURES BE DESIGNED
REASONABLY TO ASSURE THE PAYMENT OF BENEFITS "WHEN DUE," 42 U.S.C. 503,
/4/  AND ALSO THAT THE CONNECTICUT SEATED-INTERVIEW PROCEDURES WERE
CONSTITUTIONALLY DEFECTIVE IN FAILING TO PROVIDE A PRETERMINATION
HEARING SATISFYING THE STANDARDS OF GOLDBERT V. KELLY, 397 U.S. 254
(1970).  AT APPELLEES' REQUEST, A THREE-JUDGE COURT WAS CONVENED TO
HEAR THE MATTER.  /5/ 

THE DISRICT COURT'S FINDINGS OF FACT PROVIDE SOME INDICATION IF THE
ACTUAL OPERATION OF THE CONNECTICUT SYSTEM.  THE FINDINGS REVEAL THAT
THE REVERSAL RATE OF APPEALED DENIALS OF BENEFITS WAS SIGNIFICANT,
RANGING FROM 19.4% TO 26.1% DURING THE PERIODS SURVEYED.  /6/  THE
DISTRICT COURT ALSO FOUND THAT A SIGNIFICANT DELAY WAS REQUIRED FOR
OBTAINING ADMINISTRATIVE REVIEW OF THE EXAMINER'S DETERMINATION:  89.9%
OF THE 461 INTRASTATE APPELAS /7/  FILED IN THE MONTH OF DECEMBER 1972
REQUIRED MORE THAN 100 DAYS TO RESOLVE.  THE AVERAGE DELAY DURING THAT
PERIOD EXCEEDED 126 DAYS.  MOREOVER, THE COURT DETERMINED THAT THE
DECEMBER 1972 FIGURES PROBABLY WERE TYPICAL OF THE DELAYS THAT MIGHT BE
ENCOUNTERED IN OTHER TIME PERIODS.  /8/ 

THE DISTRICT COURT EXPRESSED SERIOUS RESERVATIONS WHETHER THE
CONNECTICUT SYSTEM SATISFIED THE "WHEN DUE"  REQUIREMENT OF FEDERAL
LAW.  IT FELT FORECLOSED FROM SO RULING ON THIS STATUTORY ISSUE,
HOWEVER, BY THIS COURT'S SUMMARY AFFIRMANCE IN TORRES V. NEW YORK STATE
DEPT. OF LABOR, 405 U.S. 949 (1972).  THE DISTRICT COURT CONCLUDED THAT
TORRES WAS DISTINGUISHABLE ON THE CONSTITUTIONAL ISSUE, AND HELD THAT
THE CONNECTICUT PROCEDURES VIOLATED DUE PROCESS "BECAUSE (A) A PROPERTY
INTEREST HAS BEEN DENIED (B) AT AN INADEQUATE HEARING (C) THAT IS NOT
REVIEWABLE DE NOVO UNTIL AN UNREASONABLE LENGTH OF TIME."  364 F.
SUPP., AT 937 - 938.  AFTER SUGGESTING A NUMBER OF ALTERATIONS OF THE
STATE SYSTEM THAT MIGHT RAISE ITS OPERATION TO A CONSTITUTIONALLY
ADEQUATE LEVEL, THE COURT ENJOINED APPELLANT FROM DENYING UNEMPLOYMENT
BENEFITS UNDER THEN-EXISTING PROCEDURES WITHOUT FIRST PROVIDING A
CONSTITUTIONALLY SUFFICIENT PRIOR HEARING.  ID., AT 938.  AT
APPELLANT'S REQUEST, THE DISTRICT COURT STAYED ITS INJUNCTION PENDING
RESOLUTION OF AN APPEAL TO THIS COURT.  WE SUBSEQUENTLY NOTED PROBABLE
JURISDICTION.  415 U.S. 912 (1974). 

        II 

FOLLOWING OUR NOTATION OF PROBABLE JURISDICTION, THE CONNECTICUT
LEGISLATURE ENACTED MAJOR REVISIONS OF THE PROCEDURES BY WHICH
UNEMPLOYMENT COMPENSATION CLAIMS ARE DETERMINED.  CONN. PUB. ACT 74 -
339 (1974).  /9/  SECTION 31 - 241, ONE OF THE SECTIONS UNDER
CONSIDERATION IN THIS APPEAL, WAS AMENDED TO REQUIRE THAT EXAMINERS
ONLY CONSIDER EVIDENCE PRESENTED IN PERSON OR IN WRITING AT A HEARING
PROVIDED FOR THAT PURPOSE.  /10/  ID., 14, AMENDING CONN. GEN. STAT.
REV. 31 - 241.  THE LEGISLATURE ALSO COMPLETELY ALTERED THE STRUCTURE
OF THE CONNECTICUT SYSTEM OF ADMINISTRATIVE REVIEW, SUBSTITUTING A TWO
TIERED EMPLOYMENT SECURITY APPEALS DIVSION FOR THE UNEMPLOYMENT
COMPENSATION COMMISSION.  ID., 1 - 12. 

THE AMENDED STATUTE PROVIDES FOR THE CREATION OF A STAFF OF REFEREES
TO REVIEW THE EXAMINERS' DECISIONS DE NOVO.  ID., 15.  REFEREES ARE TO
BE APPOINTED BY AN EMPLOYMENT SECURITY BOARD OF REVIEW, ID., 9, /11/
THE THREE MEMBERS OF WHICH ARE APPOINTED BY THE GOVERNOR.  ID., 3.  THE
STATUTE FURTHER PROVIDES THAT THE REFEREE SECTION "SHALL CONSIST OF
SUCH REFEREES AS THE BOARD DEEMS NECESSARY FOR THE PROMPT PROCESSING OF
APPEALS HEARINGS AND DECISIONS AND FOR THE PERFORMANCE OF THE DUTIES
IMPOSED BY THIS ACT."  ID., 9.  APPEALS FROM THE REFEREES' DECISIONS
ARE TO BE TAKEN TO THE EMPLOYMENT SECURITY BOARD OF REVIEW AND
THEREAFTER TO THE STATE COURTS.  ID., 15 AND 21, AMENDING CONN. GEN
STAT. REV. 31 - 242 AND 31 - 248, AND NEW 25 ADDED BY THE 1974
AMENDMENTS. 

THE LEGISLATIVE HISTORY INDICATES THAT THE CONNECTICUT LEGISLATURE
ANTICIPATED THAT THESE AMENDEMNTS WOULD HAVE A SIGNIFICANT IMPACT ON
THE SPEED AND FAIRNESS OF THE RESOLUTION OF CONTESTED CLAIMS. 
LEGISLATORS REPEATEDLY CHARACTERIZED THE AMENDEMNTS AS A "TRUE REFORM"
OF IMPORTANT CONSEQUENCE.  SEE CONN. S. PROC. 2578, 2624, 2629 (MAY 7,
1974).  PARTICULAR EMPHASIS WAS PLACED ON THE NEED TO IMPROVE THE
STATE'S TREATMENT OF ADMINISTRATIVE APPEALS.  IT WAS RECOGNIZED THAT
CONNECTICUT'S TORPID SYSTEM OF ADMINISTRATIVE APPEAL WAS MARKEDLY
INFERIOR TO THOSE USED IN OTHER STATES.  ID., AT 2578, 2621; CONN. H.
PROC. 5133 - 5135, 5152 (MAY 2, 1974).  REVISION OF THE APPELLATE
SYSTEM WAS DESIGNED TO REMEDY THAT PROBLEM.  IN THE WORDS OF ONE MEMBER
OF THE HOUSE: "THE BILL . . . SETS UP A UNIQUE SYSTEM WHICH IS DESIGNED
TO CUT DOWN THAT (APPELLATE) BACKLOG."  ID., AT 5152. 

        III 

THE AMENDMENTS TO THE CONNECTICUT STATUTE, WHICH BECAME EFFECTIVE ON
JULY 1, 1974, CONN. PUB. ACT 74 - 339, 36 (1974), MAY ALTER
SIGNIFICANTLY THE CHARACTER OF THE SYSTEM CONSIDERED BY THE DISTRICT
COURT.  ALTHOUGH THE PRECISE SIGNIFICANCE OF THE ADMENDMENT TO 31 - 241
IS UNCLEAR, THE COURT'S CONCERN FOR THE ABSENCE OF A RIGHT OF
CONFRONTATION, 364 F. SUPP., AT 935, MAY BE DIMINISHED BY THE
REQUIREMENT THAT EXAMINERS BASE THEIR DECISIOS ONLY ON EVIDENCE
SUBMITTED IN PERSON OR IN WRITING.  PERHAPS OF GREATER IMPORTANCE IS
THE REVISION OF THE STATE'S SYSTEM OF ADMINISTRATIVE APPEAL.  BOTH IN
DISTINGUISHING TORRES AND IN DETERMINING THAT THE CONNECTICUT SYSTEM
FAILED TO SATISFY THE MINIMAL REQUIREMENTS OF PROCEDURAL DUE PROCESS,
THE DISTRICT COURT PLACED SUBSTANTIAL RELIANCE ON THE LENGTH OF TIME
REQUIRED TO OBTAIN ADMINISTRATIVE REVIEW OF THE EXAMINER'S DECISION. 
THE AMENDMENTS TO CONNECTICUT LAW ARE DESIGNED TO REMEDY THIS PORBLEM. 

THIS COURT MUST REVIEW THE DISTRICT COURT'S JUDGMENT IN LIGHT OF
PRESENTLY EXISTING CONNECTICUT LAW, NOT THE LAW IN EFFECT AT THE TIME
THAT JUDGMENT WAS RENDERED.  /12/  DIFFENDERFER V. CENTRAL BAPTIST
CHURCH, 404 U.S. 412, 414 (1972); HALL V. BEALS, 396 U.S. 45, 48
(1969); UNITED STATES V. ALABAMA, 362 U.S. 602, 604 (1960).  WE ARE
UNABLE MEANINGFULLY TO ASSESS THE ISSUES IN THIS APPEAL ON THE PRESENT
RECORD. 

BOTH THE STATUTORY AND CONSTITUTIONAL QUESTIONS ARE SIGNIFICANTLY
AFFECTED BY THE LENGTH OF THE PERIOD OF DEPRIVATION OF BENEFITS.  /13/
THE BASIC THRUST OF THE STATUTORY "WHEN DUE" REQUIREMENT /14/  IS
TIMELINESS.  SEE CALIFORNIA HUMAN RESOURCES DEPT. V. JAVA, 402 U.S.
121, 130 - 133 (1971).  WHILE WE CAN DETERMINE ON THIS RECORD THAT
CONNECTICUT'S PREVIOUS SYSTEM OFTEN FAILED TO DELIVER BENEFITS IN A
TIMELY MANNER, /15/  WE CAN ONLY SPECULATE HOW THE NEW SYSTEM MIGHT
OPERATE.  AND, ASSUMING THAT THE FEDERAL STATURORY REQUIREMENTS WERE
SATISFIED, IT WOULD PROVE EQUALLY DIFFICULT TO ASSESS THE QUESTION OF
PROCEDURAL DUE PROCESS. 

IDENTIFICATION OF THE PRECISE DICTATES OF DUE PROCESS REQUIRES
CONSIDERATION OF BOTH THE GOVERNMENTAL FUNCTION INVOLVED AND THE
PRIVATE INTERESTS AFFECTED BY OFFICIAL ACTION.  CAFETERIA WORKERS V.
MCELROY, 367 U.S. 886, 895 (1961); GOLDBERG V. KELLY, 397 U.S., AT 263
266.  AS THE COURT RECOGNIZED IN BODDIE V. CONNECTICUT, 401 U.S. 371,
378 (1971): "THE FORMALITY AND PROCEDURAL REQUISITES FOR (A DUE
PROCESS) HEARING CAN VARY, DEPENDING UPON THE IMPORTANCE OF THE
INTERESTS INVOLVED AND THE NATURE OF THE SUBSEQUENT PROCEEDINGS."  IN
THIS CONTEXT, THE POSSIBLE LENGTH OF WRONGFUL DEPRIVATION OF
UNEMPLOYMENT BENEFITS IS AN IMPORTANT FACTOR IN ASSESSING THE IMPACT OF
OFFICIAL ACTIONON THE PRIVATE INTEREST.  CF. ARNETT V. KENNEDY, 416
U.S. 134, 168 - 169 (OPINION OF POWELL, J.); ID., AT 190, 192 (WHITE,
J., CONCURRING IN PART AND DISSENTING IN PART).  PROMPT AND ADEQUATE
ADMINISTRATIVE REVIEW PROVIDES AN OPPORTUNITY FOR CONSIDERATION AND
CORRECTION OF ERRORS MADE IN INITIAL ELIGIBILITY DETERMINATIONS.  THUS,
THE RAPIDITY OF ADMINISTRATIVE REVIEW IS A SIGNIFICANT FACTOR IN
ASSESSING THE SUFFICIENCY OF THE ENTIRE PROCESS.  THE RECORD, OF
COURSE, PROVIDES NO INDICATION OF THE PROMPTNESS AND ADEQUACY OF REVIEW
UNDER THE NEW SYSTEM.  WE ARE UNABLE, THEREFORE, TO DECIDE THIS APPELA
ON ITS MERITS.  THE JUDGMENT OF THE DISTRICT COURT IS VACATED, AND THE
CASE REMANDED FOR RECONSIDERATION IN LIGHT OF THE INTERVENING CHANGES
IN CONNECTICUT LAW. 

IT IS SO ORDERED. 

/1/  PRIOR TO THE 1974 AMENDMENTS, THE ADMINISTRATOR COULD AUTHORIZE
PAYMENT OF BENEFITS DURING PENDENCY OF AN ADMINISTRATIVE APPEAL IF
"GOOD CAUSE" WAS SHOWN.  CONN. GEN. STAT. REV. 31 - 241.  THE RECORD
PROVIDES NO INDICATION OF THE FREQUENCY OF SUCH AUTHORIZATIONS.  ONE OF
THE 1974 AMENDMENTS REQUIRES THAT BENEFITS BE PAID IN ACCORDANCE WITH
THE ADMINISTRATOR'S DETERMINATION, REGARDLESS OF THE FILING OF AN
APPEAL.  THE AMENDMENT REMOVES THE ADMINISTRATOR'S SPECIFIC AUTHORITY
TO AWARD BENEFITS DURING APPEAL FOR "GOOD CAUSE SHOWN."  SEE CONN. PUB.
ACT 74 - 339, 14 (1974).  WE CANNOT DETERMINE WHETHER THIS AMENDMENT
WAS INTENDED TO DEPRIVE THE ADMINISTRATOR OF THE POWER TO AWARD
BENEFITS FOR CAUSE FOLLOWING AN ADVERSE RULING OF ELIGIBILITY. 

/2/  THE STIPULATION OF FACTS INDICATES ONLY THAT SOME CLAIMANTS
SUBSEQUENTLY WERE DENIED BENEFITS BECAUSE THEY HAD APPEALS PENDING. 
APP. 39A.  IT DOES NOT REVEAL THE FREQUENCY OF THIS OCCURRENCE. 

/3/  EACH OF THE NAMED PLAINTIFFS HAD FILED A VALID INITIATING CLAIM
AND RECEIVED BENEFITS FOR A PERIOD OF TIME.  EACH SUBSEQUENTLY WAS
DENIED BENEFITS FOLLOWING A SEATED INTERVIEW IN WHICH THE EXAMINER
CONCLUDED THAT THE OR SHE HAD MADE INSUFFICIENT EFFORTS TO OBTAIN
EMPLOYMENT.  THE DISTRICT COURT DEFINED THE CLASS TO BE ALL PRESENT AND
FUTURE UNEMPLOYMENT BENEFIT RECIPIENTS WHOSE BENEFITS WERE OR WOULD BE
SUBJECT TO TERMINATION WITHOUT A PRIOR HHEARING, EXCEPTING THOSE
PERSONS WHOSE BENEFITS TERMINATE DUE TO EXHAUSTION OF ENTITLEMENT.  364
F. SUPP. 922, 927 - 928. 

/4/  THE "WHEN DUE" REQUIREMENT IS ONE OF A NUMBER OF CONDITIONS
IMPOSED ON STATE RECEIPT OF FEDERAL ASSISTANCE.  THE FEDERAL GOVERNMENT
PLAYS A COOPERATIVE ROLE IN THE IMPLEMENTATION STATE UNEMPLOYMENT
COMPENSATION PROGRAMS, BEARING THE COSTS OF ADMINISTRATION OF THOSE
PROGRAMS THAT SATISFY FEDERAL REQUIREMENTS.  ON DETERMINING THAT STATE
LAWS AND PRACTICES SATISFY THE STANDARDS OF 303 OF THE SOCIAL SECURITY
ACT, 49 STAT. 626, AS AMENDED, 42 U.S.C. 503, THE SECRETARY OF LABOR
MUST CERTIFY THAT THE STATE SHOULD RECEIVE THE AMOUNT THAT HE CONSIDERS
NECESSARY FOR THE PROPER AND EFFICIENT ADMINISTRATION OF SUCH LAW
DURING THE FICAL YEAR IN WHICH PAYMENT IS MADE.  ID., 502 (A).     IN
ADDITION TO IMPOSING RESTRICTIONS ON THE FISCAL ADMINISTRATION OF STATE
UNEMPLOYMENT COMPENSATION FUNDS, 303 ESTABLISHES SPECIFIC PROCEDURAL
SAFEGUARDS FOR BENEGIT CLAIMANTS.  ID., 503 (A)(1) AND (A)(3).  IT
PROVIDES: 

"(A) THE SECRETARY OF LABOR SHALL MAKE NO CERTIFICATION FOR PAYMENT
TO ANY STATE UNLESS HE FINDS THAT THE LAW OF SUCH STATE, APPROVED BY
THE SECRETARY OF ALBOR UNDER THE FEDERAL UNEMPLOYMENT TAX ACT, INCLUDES
PROVISION FOR--, 

"(1) SUCH METHODS OF ADMINISTRATION (INCLUDING AFTER JANUARY 1,
1940, METHODS RELATING TO THE ESTABLISHMENT AND MAINTENANCE OF
PERSONNEL STANDARDS ON A MERIT BASIS, EXCEPT THAT THE SECRETARY OF
LABOR SHALL EXERCISE NO AUTHORITY WITH RESPECT TO THE SELECTION, TENURE
OF OFFICE, AND COMPENSATION OF ANY INIDVUDUAL EMPLOYED IN ACCORDANCE
WITH SUCH METHODS) AS ARE FOUND BY THE SECRETARY OF LABOR TO BE
REASONABLY CALCULATED TO INSURE FULL PAYMENT OF UNEMPLOYMENT
COMPENSATION WHEN DUE;

        *         *         *         *         * 

"(3) OPPORTUNITY FOR AFAIR HEARING, BEFORE AN IMPARTIAL TRIBUNAL,
FOR ALL INDIVIDUALS WHOSE CLAIMS FOR UNEMPLOYMENT COMPENSATION ARE
DENIED. 

/5/  THE ACTION WAS BROUGHT PURSUANT TO 42 U.S.C. 1983 AND 28 U.S.C.
2201 AND 2202.  JURISDICITON WAS ALLEGED UNDER 28 U.S.C. 1343.  THIS
COURT'S JURISDICTION RESTS ON 28 U.S.C. 1253. 

/6/  DURING THE PERIOD JULY 1971 TO JUNE 1972, THERE WERE 6,534
APPEALED DENIALS, OF WHICH 26.1% WERE REVERSED.  THE REVERSAL RATE FOR
JULY TO OCTOBER 1972 REMAINED AT APPROXIMATELY 26%, BUT FELL TO 19.4%
DURING THE THREE-MONTH PERIOD FROM JANUARY TO MARCH 1973.  364 F.
SUPP., AT 936 - 937, N. 28.  THE DIRECTOR OF THE WATERBURY OFFICE
TESTIFIED THAT THE REVERSAL RATE HAD FALLEN TO 18.8% BY MAY 1973.  SEE
APP. 215A. 

A MORE COMPLETE ASSESSMENT OF THE OPERATION OF THE CONNECTICUT
SYSTEM MIGHT BE OBTAINED BY ATTEMPTING TO DETERMINE THE OVERALL ERROR
RATE FOR ALL DENIALS OF BENEFITS.  THE DISTRICT COURT MADE NO FINDING
ON THIS POINT. 

/7/  THE STATE OF CONNECTICUT HAS ENTERED INTO RECIPROCAL AGREEMENTS
WITH OTHER STATES, ENABLING CLAIMANTS WHO HAVE MOVED INTO CONNECTICUT
TO RELY ON WAGE CREDITS EARNED ELSEWHERE.  APPEALS OF DENIALS OF
INTERSTATE CLAIMS OFTEN REQUIRE TRANSFER OF INFORMATION FROM THE
RECIPROCATING STATE AND THUS CONSUME A GREATER PERIOD OF TIME. 

/8/  IN 1973, THE CONNECTICUT ADMINISTRATIVE APPELLATE PROCEDURE WAS
THE SLOWEST IN THE NATION.  STATISTICS REVEAL THAT DURING THAT CALENDAR
YEAR THE COMMISSION DECIDED ONLY 5.3% OF THE APPEALS WITHIN 30 DAYS. 
DURING THAT SAME PERIOD THE COMMISSION DECIDED ONLY 15.5% OF APPEALS
WITHIN 45 DAYS AND RESOLVED APPEALS WITHIN 75 DAYS OF FILING IN ONLY
31.4% OF THE CASES.  SEE UNEMPLOYMENT INSURANCE STATISTICS, TABLE 17B-
APPEALS DECISIONS UNDER STATE PROGRAMS, TIME LAPSE BETWEEN DATE OF
FILING APPEAL AND DATE OF DECISIONS, JANUARY-DECEMBER 1973.  U.S. DEPT.
OF LABOR, MANPOWER ADMINISTRATION (MARCH-APRIL 1974). 

/9/  THE RECORD AVAILABLE TO US SUGGESTS THAT THE DEPARTMENT OF
LABOR WAS INSTRUMENTAL IN ENCOURAGING REFORM.  SEE CONN. H. PROC. 5132,
5151 (MAY 2, 1974).  THAT RECORD IS SILENT AS TO WHETHER THE DISTRICT
COURT'S DECISION OR THIS COURT'S NOTATION OF JURISDICTION PROVIDED
ADDITIONAL ENCOURAGEMENT. 

/10/  AS NOTED BY THE DISTRICT CURT, FACTFINDING EXAMINERS OFTEN
TELEPHONED EMPLOYERS TO OBTAIN EVIDENCE RELATING TO THE VALIDITY OF
BENEFIT CLAIMS.  364 F. SUPP., AT 925.  THE AMENDMENT APPEARS DESIGNED
TO ELIMINATE THAT PRACTICE. 

/11/  UNDER CONNECTUCUT'S PRIOR SYSTEM, THE COMMISSIONERS WHO
DECIDED APPEALS WERE APPOINTED BY THE GOVERNOR.  SEE CONN. GEN. STAT.
REV. 31 238.  THE LEGISLATIVE DEBATES INDICATE THAT THEY HELD OTHER
EMPLOYMENT AND SERVED ONLY ON A PART-TIME BASIS.  SEE CONN. H. PROC.
5152.  IN REVISING THE CONNECTICUT SYSTEM, THE LEGISLATORS EXPRESSED A
DESIRE TO INSULATE THE REFEREE SYSTEM FROM THE INFLUENCES OF PARTISAN
POLITICS.  CONN. S. PROC. 2629; CONN. H. PROC. 5153 - 5154.  THE
REVISED CONNECTICUT SYSTEM PROVIDES THAT REFEREES MUST BE MEMBERS OF
THE STATE'S CIVIL SERVICE, CONN. PUB. ACT 74 - 339 9 (1974), AND THE
HISTORY OF THE AMENDMENTS CLEARLY INDICATES THAT THE REFEREES'
COMMITMENT TO THE PROCESSING OF APPEALS WILL BE FULL TIME.  CONN. S.
PROC. 2628, 2630; CONN. H. PROC. 5142, 5147. 

/12/  OUR DETERMINATION OF THE EXISTENCE AND SIGNIFICANCE OF
CONNECTICUT'S AMENDMENTS TO ITS UMEMPLOYMENT COMPENSATION ACT WAS
LARGELY UNASSISTED BY COUNSEL.  INDEED, INITIAL EXAMINATION OF THE
BRIEFS AND CONSIDERATION OF ORAL ARGUMENT LED US TO BELIEVE THAT THE
SYSTEM CONSIDERED BY THE DISTRICT COURT REMAINED SUBSTANTIALLY INTACT. 
WE FIND IT DIFFICULT TO UNDERSTAND THE FAILURE OF COUNSEL FULLY TO
INFORM THE COURT OF THESE AMENDMENTS TO CONNECTICUT LAW. 

/13/  THE DISTRICT COURT RULED THAT OUR SUMMRY AFFIRMANCE IN TORRES
V. NEW YORK STATE DEPARTMENT OF LABOR, 405 U.S. 949 (1972), PRECLUDED
ANY DETERMINATION THAT THE CONNECTICUT SYSTEM FAILED TO SATISFY THE
FEDERAL "WHEN DUE" REQUIREMENT.  APPELLEES DID NOT CROSS-APPEAL TO
QUESTION THAT RULING, AND APPELLANT MAINTAINS THAT THE ISSUE IS NOT
BEFORE THE COURT.  WE OBSERVED IN UNITED STATES V. RAINES, 362 U.S. 17,
27 N. 7 (1960), THAT AN APPEAL UNDER 28 U.S.C. 1252 BRINGS THE "WHOLE
CASE" BEFORE THE COURT.  THUS, ISSUES THAT MIGHT PROVIDE ALTERNATIVE
GROUNDS FOR SUPPORT OF THE DISTRICT COURT JUDGMENT CAN BE CONSIDERED BY
THIS COURT EVEN THOUGH NOT SPECIFICALLY PRESENTED BY CROSS-APPEAL.  THE
SAME PRINCIPLE GOVERNS APPEALS BROUGHT UNDER 28 U.S.C. 1253.  WE
THEREFORE HAVE JURISDICTION TO DECIDE THE POINT, AND WE WOULD FEEL
COMPELLED TO RE-EXAMINE A STATUTORY CLAIM THAT MAY BE DISPOSITIVE
BEFORE CONSIDER ING A DIFFICULT CONSTITUTIONAL ISSUE.  SEE ROSADO V.
WYMAN, 397 U.S. 397, 402 (1970); HARMON V. BRUCKER, 355 U.S. 579, 581
(1958). 

/14/  SEE N. 4, SUPRA. 

/15/  THE DISTRICT COURT INTERPRETED OUR SUMMARY AFFIRMANCE IN
TORRES TO INDICATE THAT BENEFITS ARE NOT "DUE" UNDER 303 UNTIL
ADMINISTRATIVELY DEEMED PAYABLE.  364 F. SUPP., AT 930.  WHILE THIS IS
A PLAUSIBLE READING OF THE EVOLUTION AND AFFIRMANCE OF TORRES, IT IS
NOT ONE THAT WE CAN ENDORSE.  SUCH A DEFINITION OF THE "WHEN DUE"
REQUIREMNT OF FEDERAL LAW WOULD LEAVE LITTLE VIALITY TO JAVA AND WOULD
NULLIFY THE CONGRESSIONAL INTENTION OF REQUIRING PROMPT ADMINISTRATIVE
PROVISION OF UNEMPLOYMENT BENEFITS.  SEE 402 U.S., AT 130 - 133.  BY
READING UOR SUMMARY AFFIRMANCE IN TORRES AT ITS BROADEST, THE DISTRICT
COURT HEIGHTENED THE TENSION BETWEEN THAT JUDGMENT AND OUR MORE
CONSIDERED DISPOSITION OF JAVE.  A NARROWER INTERPRETATION OF TORRES
WOULD HAVE BEEN APPROPRIATE. 

ANY STATUTORY REQUIREMENT THAT EMBODIES NOTIONS OF TIMELINESS,
ACCURACY, AND ADMINISTRATIVE FEASIBILITY INEVITABLY WILL GENERATE FACT
SPECIFIC APPLICATIONS.  IN THIS INSTANCE, MANY OF THE FACTUAL
DISTINCTION THAT THE DISTRICT COURT RELIED ON TO DISTINGUISH TORRES ON
THE CONSTITUTIONAL ISSUE APPLY EQUALLY TO THE "WHEN DUE" QUESTION.  FOR
EXAMPLE, THE DELAY IN RESOLVING ADMINISTRATIVE APPELAS IS CONSIDERABLY
GREATER IN CONNECTICUT THAN IN THE NEW YORK SYSTEM, WHERE
ADMINISTRATIVE APPEALS WERE RESOLVED IN AN AVERAGE OF 45 DAYS.  SEE
TORRES V. NEW YORK STATE DEPT. OF LABOR, 321 F. SUPP. 432, 439 (SDNY
1971).  AND, AS THE DISTRICT CURT OBSERVED, THE TORRES COURT APPARENTLY
DID NOT CONSIDER THE PROBABLE ACCURACY OF THE CHALLENGED PROCEDURE IN
DETERMINING WHETHER IT ADEQUATELY ASSURED DELIVERY OF BENEFITS "WHEN
DUE."  SEE 364 F. SUPP., AT 936.  WE DO NOT UNDERTAKE TO IDENTIFY THE
COMBINATION OF FACTORS THAT JUSTIFY THE TORRES DECISION.  HAVING ONCE
DECIDED THE CASE SUMMARILY, WE DECLINE TO DO SO AGAIN.  WE ONLY
INDICATE THAT THE DISTRICT COURT SHOULD NOT HAVE FELT PRECLUDED FROM
UNDERTAKING A MORE PRECISE ANALYSIS OF THE STATUTORY ISSUE THAN IT FELT
EMPOWERED TO DO IN THIS CASE. 

MR. CHIEF JUSTICE BURGER, CONCURRINNG. 

I JOIN THE OPINION OF THE COURT; HOWEVER, IT MAY BE USEFUL TO
MENTION TWO POINTS WHICH BEAR FURTHER DISCUSSION.  FIRST, AS THE COURT
NOTES, ANTE, AT 387 N. 12, ALL PARTIES FAILED TO INFORM US THAT AFTER
THE DISTRICT COURT ENTERED JUDGMENT THE CONNECTICUT LEGISLATURE
SIGNIFICANTLY CHANGED ITS UNEMPLOYMENT COMPENSATION SYSTEM.  I AGREE
WITH THE COURT THAT THIS FAILURE IS "DIFFICULT TO UNDERSTAND."  IBID.
IT IS DISCONCERTING TO THIS COURT TO LEARN OF RELEVANT AND IMPORTANT
DEVELOPMENTS IN A CASE AFTER THE ENTIRE COURT HAS COME TO THE BENCH TO
HEAR ARGUMENTS. 

EVEN AT ORAL ARGUMENT WE WERE NOT INFORMED OF THE CHANGES IN STATE
LAW ALTHOUGH BOTH PARTIES FILED THEIR BRIEFS AFTER THE NEW STATUTE WAS
PASSED, THE CONNECTICUT LEGISLATURE APPEARS TO HAVE CHANGED THE SYSTEM
AT LEAST IN PART TO EXPEDITE ADMINISTRATIVE APPEALS AND THEREBY TREAT
CLAIMANTS MORE FAIRLY, SEE ANTE, AT 380, 386, THUS MEETING IN PART, AT
LEAST, THE BASIS OF THE ATTACK ON THE SYSTEM.  ALL PARTIES HAD AN
OBLIGATION TO INFORM THE COURT THAT THE SYSTEM WHICH THE DISTRICT COURT
HAD ENJOINED HAD BEEN CHANGED; HOWEVER, ONLY A CRYPTIC REFERENCE WAS
MADE TO THE CHANGE OF LAW.  THE APPELLEES'  BRIEF IS 122 PAGES LONG AND
NOTES THE CHANGE ONCE, AT THE END OF A FOOTNOTE.  BRIEF FOR APPELLEES
65 N. 52.  AT THAT POINT APPELLEES ARE CONTENDING THAT THE LONG DELAY
BETWEEN THE SEATED INTERVIEW AND ADMINISTRATIVE REVIEW OF A DECISION TO
WITHHOLD BENEFITS AGGRAVATES THE DEFECTS WHICH THEY CONTEND EXIST IN
THE SEATED INTERVIEW ITSELF.  THERE APPELLEES QUOTE BODDIE V.
CONNECTICUT, 401 U.S. 371 378 (1971), WHERE THE COURT SAID: "THE
FORMALITY AND PROCEDURAL REQUISITES FOR THE HEARING CAN VARY, DEPENDING
UPON THE IMPORTANCE OF THE INTERESTS INVOLVED AND THE NATURE OF THE
SUBSEQUENT PROCEEDINGS."  (BRIEF FOR APPELLEES 64; EMPHASIS
APPELLEES'.)  GIVEN THE FACT THAT THE CHANGES IN THE PROCEDURES MAY
WELL HAVE AN EFFECT ON "SUBSEQUENT PROCEEDINGS," ANTE, AT 386, THE
COURT SHOULD HAVE BEEN EXPLICITLY ADVISED THAT CHANGES HAD OCCURRED. 
THE ONLY REFERENCE TO CHANGES IN THE LAW ACTUALLY GIVES THE IMPRESSION
THAT THEIR EFFECT IS NEGLIGIBLE. 

THIS COURT MUST RELY ON COUNSEL TO PRESENT ISSUES FULLY AND FAIRLY,
AND COUNSEL HAVE A CONTINUING DUTY TO INFORM THE COURT OF ANY
DEVELOPMENT WHICH MAY CONCEIVABLY AFFECT AN OUTCOME. 

SECOND, ALTHOUGH I AGREE WHOLEHEARTEDLY WITH THE COURT'S REASONED
DISCUSSION OF THE TENSION BETWEEN THE SUMMARY AFFIRMANCE IN TORRES V.
NEW YORK STATE DEPT. OF LABOR, 405 U.S. 949 (1972), AFF'G 333 F. SUPP.
341 (SDNY 1971), AND THE COURT'S OPINION IN CALIFORNIA HUMAN RESOURCES
DEPT. V. JAVA, 402 U.S. 121 (1971), ANTE, AT 388 - 389, N. 15, WE MIGHT
WELL GO BEYOND THAT AND MAKE EXPLICIT WHAT IS IMPLICIT IN SOME PRIOR
HOLDINGS.  E. G., GIBSON V. BERRYHILL, 411 U.S. 564, 576 (1973);
EDELMAN V. JORDAN, 415 U.S. 651, 671 (1974).  WHEN WE SUMMARILY AFFIRM,
WITHOUT OPINION, THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT WE AFFIRM
THE JUDGMENT BUT NOT NECESSARILY THE REASONING BY WHICH IT WAS
REACHED.  /1/  AN UNEXPLICATED SUMMARY AFFIRMANCE SETTLES THE ISSUES
FOR THE PARTIES, AND IS NOT TO BE READ AS A RENUNCIATION BY THIS COURT
OF DOCTRINES PREVIOUSLY ANNOUNCED IN OUR OPINIONS AFTER FULL ARGUMENT. 
INDEED, UPON FULLER CONSIDERATION OF AN ISSUE UNDER PLENARY REVIEW, THE
COURT HAS NOT HESTITATED TO DISCARD A RULE WHICH A LINE OF SUMMARY
AFFIRMANCES MAY APPEAR TO HAVE ESTABLISHED.  E. G., ELEMAN V. JORDAN,
SUPRA, AT 671; SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337, 343 -
344 (1969) (HARLAN, J., CONCURRING); ID., AT 350 (BLACK, J.,
DISSENTING); REYNOLDS V. SIMS, 377 U.S. 533, 614 (1964) (HARLAN, J.,
DISSENTING). 

/1/  SOME ARE QUICK TO USE THE DISTRICT COURT OPINION TO DEFINE THIS
COURT'S JUDGMENT.  SEE NOTE, THE SUPREME COURT, 1953 TERM, 68 HARV. L.
REV. 96, 102 (1955); NOTE, SUMMARY DISPOSITION OF SUPREME COURT
APPEALS: THE SIGNIFICANCE OF LIMITED DISCRETION AND A THEORY OF LIMITED
PRECEDENT, 52 B. U. L. REV. 373, 409 (1972).  ANOTHER COMMON RESPONSE
TO SUMMARY AFFIRMANCES OF THREE-JUDGE-COURT JUDGMENTS IS CONFUSION AS
TO WHAT THEY ACTUALLY DO MEAN.  SEE CURRIE, THE THREE-JUDGE DISTRICT
COURT IN CONSTITUTIONAL LITIGATION, 32 U. CHI.  L. REV. 1, 74 N. 365
(1964); SHANKS, BOOK REVIEW, 84 HARV. L. REV. 256, 257 - 258, N. 17
(1970); NOTE, IMPACT OF THE SUPREME COURT'S SUMMARY DISPOSITIONPRACTICE
ON ITS APPEALS JURISDICITON, 27 RUTGERS L. REV. 952, 962 (1974); NOTE,
52 B. U. L. REV., SUPRA, AT 407 - 415. 

DONALD E. WASIK, ASSISTANT ATTORNEY GENERAL OF CONNECTICUT, ARGUED
THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF WAS ROBERT K. KILLIAN,
ATTORNEY GENERAL. 

JOHN M. CREANE, BY APPOINTMENT OF THE COURT, POST, P. 990, ARGUED
THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE RAYMOND J. KELLY
AND JOHN A DZIAMBA.  /1/ 

/1/  DENNIS R. YEAGER, E. RICHARD LARSON, STEPHEN M. RANDELS, JOHN
M. LEVY, JERRY L. COVINGTON, MARTTIE LOUIS THOMPSON, STEPHEN E.
GOTTLIEB, C. CHRISTOPHER BROWN, AND C. LYONEL JONES FILED A BRIEF FOR
THE NATIONAL EMPLOYMENT LAW PROJECT, INC., ET AL. AS AMICI CURIAE
URGING AFFIRMANCE. 

STEPHEN P. BERZON, STEFAN M. ROSENZWEIG, J. ALBERT WOLL, AND BERNARD
KLEIMAN FILED A BRIEF FOR ELLENMAE CROW ET AL. AS AMICI CURIAE. 
..END :




















SOSNA V. IOWA, 419 U.S. 393 


       SOSNA V. IOWA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF IOWA

        NO. 73 - 762.  ARGUED OCTOBER 17, 1974--DECIDED JANUARY 14,

           1975; (360 F. SUPP. 1182, AFFIRMED.) 


    APPELLANT MRS. SOSNA'S PETITION FOR DIVORCE WAS DISMISSED BY AN

  IOWA TRIAL COURT FOR LACK OF JURISDICTION BECAUSE SHE FAILED TO

  MEET THE IOWA STATUTORY REQUIREMENT THAT A PETITIONER IN A

  DIVORCE ACTION BE A RESIDENT OF THE STATE FOR ONE YEAR PRECEDING

  THE FILING OF THE PETITION.  APPELLANT THEN BROUGHT A CLASS

  ACTION UNDER FED. RULE CIV. PROC. 23 IN THE FEDERAL DISTRICT

  COURT AGAINST APPELLEES STATE AND STATE TRIAL JUDGE, ASSERTING

  THAT IOWA'S DURATIONAL RESIDENCY REQUIREMENT VIOLATED THE FEDERAL

CONSTITUTION ON EQUAL PROTECTION AND DUE PROCESS GROUNDS AND

  SEEKING INJUNCTIVE AND DECLARATORY RELIEF.  AFTER CERTIFYING THAT

  APPELLANT REPRESENTED THE CLASS OF PERSONS RESIDING IN IOWA FOR

  LESS THAN A YEAR WHO DESIRED TO INITIATE DIVORCE ACTIONS, THE

  THREE-JUDGE DISTRICT COURT UPHELD THE CONSTITUTIONALITY OF THE

  STATUTE.  HELD: 

1.  THE FACT THAT APPELLANT HAD LONG SINCE SATISFIED THE

DURATIONAL RESIDENCY REQUIREMENT BY THE TIME THE CASE REACHED

  THIS COURT DOES NOT MOOT THE CASE, SINCE THE CONTROVERSY REMAINS

  VERY MUCH ALIVE FOR THE CLASS OF UNNAMED PERSONS WHOM SHE

  REPRESENTS AND WHO, UPON CERTIFICATION OF THE CLASS ACTION,

  ACQUIRED A LEGAL STATUS SEPARATE FROM HER ASSERTED INTEREST. 

  DUNN V. BLUMSTEIN, 405 U.S. 330.  PP. 397 - 403. 

     (A) WHERE, AS HERE, THE ISSUE SOUGHT TO BE LITIGATED ESCAPES

  FULL APPELLATE REVIEW AT THE BEHEST OF ANY SINGLE CHALLENGER, THE

  CASE DOES NOT INEXORABLY BECOME MOOT BY THE INTERVENING

  RESOLUTION OF THE CONTROVERSY AS TO THE NAMED PLAINTIFFS.  P.

  401. 

     (B) AT THE TIME THE CLASS ACTION WAS CERTIFIED, APPELLANT

DEMONSTRATED A "REAL AND IMMEDIATE" THREAT OF INJURY AND BELONGED

  TO THE CLASS THAT SHE SOUGHT TO REPRESENT.  PP. 402 - 403. 

     (C) THE TEST OF RULE 23 (A) THAT THE NAMED REPRESENTATIVE IN A

  CLASS ACTION "FAIRLY AND ADEQUATELY PROTECT THE INTERESTS OF THE

  CLASS," IS MET HERE, WHERE IT IS UNLIKELY THAT SEGMENTS OF THE

  CLASS REPRESENTED WOULD HAVE INTERESTS CONFLICTING WITH

  APPELLANT'S, AND THE INTERESTS OF THE CLASS HAVE BEEN COMPETENTLY

  URGED AT EACH LEVEL OF THE PROCEEDING.  P. 403. 

     2.  THE IOWA DURATIONAL RESIDENCY REQUIREMENT FOR DIVORCE IS
NOT UNCONSTITUTIONAL.  PP. 404

     (A) SUCH REQUIREMENT IS NOT UNCONSTITUTIONAL ON THE ALLEGED

  GROUND THAT IT ESTABLISHES TWO CLASSES OF PERSONS AND

  DISCRIMINATES AGAINST THOSE WHO HAVE RECENTLY EXERCISED THEIR

  RIGHT TO TRAVEL TO IOWA.  APPELLANT WAS NOT IRRETRIEVABLY

  FORECLOSED FROM OBTAINING SOME PART OF WHAT SHE SOUGHT AND SUCH

  REQUIREMENT MAY REASONABLY BE JUSTIFIED ON GROUNDS OF THE STAT'S

  INTEREST IN REQUIRING THOSE SEEKING A DIVORCE FROM ITS COURTS TO

  BE GENUINELY ATTACHED TO THE STATE, AS WELL AS OF THE STATE'S

DESIRE TO INSULATE ITS DIVORCE DECREES FROM THE LIKELIHOOD OF

  SUCCESSFUL COLLATERAL ATTACK.  SHAPIRO V. THOMPSON, 394 U.S. 618;

  DUNN, SUPRA; MEMORIAL HOSPITAL V. MARICOPA COUNTY, 415 U.S. 250,

  DISTINGUISHED.  PP. 406 - 409. 

   (B) NOR DOES THE DURATIONAL RESIDENCY REQUIREMENT VIOLATE THE

  DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ON THE ASSERTED

  GROUND THAT IT DENIES A LITIGANT THE OPPORTUNITY TO MAKE AN

  INDIVIDUALIZED SHOWING OF BONA FIDE RESIDENCE AND THUS BARS

  ACCESS TO THE DIVORCE COURTS.  EVEN IF APPELLANT COULD MAKE AN

  INDIVIDUALIZED SHOWING OF PHYSICAL PRESENCE PLUS THE INTENT TO

  REMAIN, SHE WOULD NOT BE ENTITLED TO A DIVORCE, FOR IOWA REQUIRES

  NOT MERELY "DOMICILE" IN THAT SENSE, BUT RESIDENCE IN THE STATE

  FOR ONE YEAR.  SEE VLANDIS V. KLINE, 412 U.S. 441, 452. 

  MOREOVER, NO TOTAL DEPRIVATION OF ACCESS TO DIVORCE COURTS BUT

 ONLY DELAY IN SUCH ACCESS IS INVOLVED HERE.  BODDIE V.

CONNECTICUT, 401 U.S. 371, DISTINGUISHED.  PP. 409 - 410. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND DOUGLAS, STEWART, BLACKMUN, AND POWELL, JJ.,

  JOINED.  WHITE, J., FULED A DISSENTING OPINION, POST, P. 410. 

  MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, J.,

  JOINED, POST, P. 418. 

MR. JUSTICE REHNQUIST DELEVERED THE OPINION OF THE COURT. 

APPELLANT CAROL SOSNA MARRIED MICHAEL SOSNA ON SEPTEMBER 5, 1964, IN
MICHIGAN.  THEY LIVED TOGETHER IN NEW YORK BETWEEN OCTOBER 1967 AND
AUGUST 1971, AFTER WHICH DATE THEY SEPARATED BUT CONTINUED TO LIVE IN
NEW YORK.  IN AUGUST 1972, APPELLANT MOVED TO IOWA WITH HER THREE
CHILDREN, AND THE FOLLOWING MONTH SHE PETITIONED THE DISTRICT COURT OF
JACKSON COUNTY, IOWA, FOR A DISSOLUTION OF HER MARRIAGE.  MICHAEL
SOSNA, WHO HAD BEEN PERSONALLY SERVED WITH NOTICE OF THE ACTION WHEN HE
CAME TO IOWA TO VISIT HIS CHILDREN, MADE A SPECIAL APPEARANCE TO
CONTEST THE JURISDICTION OF THE IOWA COURT.  THE IOWA COURT DISMISSED
THE PETITION FOR LACK OF JURISDICTION, FINDING THAT MICHAEL SOSNA WAS
NOT A RESIDENT OF IOWA FOR ONE YEAR PRECEDING THE FILING OF HER
PETITION.  IN SO DOING THE IOWA COURT APPLIED THE PROVISIONS OF IOWA
CODE 598.6 (1973) REQUIRING THAT THE PETITIONER IN SUCH AN ACTION BE
"FOR THE LAST YEAR A RESIDENT OF THE STATE."  /1/ 

INSTEAD OF APPEALING THIS RULE TO THE IOWA APPELLATE COURTS,
APPELLANT FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF IOWA ASSERTING THAT IOWA'S DURATIONAL RESIDENCY
REQUIREMENT FOR INVOKING ITS DIVORCE JURISDICTION VIOLATED THE UNITED
STATES CONSTITUTION.  SHE SOUGHT BOTH INJUCTIVE AND DECLARATORY RELIEF
AGAINST THE APPELLEES IN THIS CASE, ONE OF WHICH IS THE STATE OF IOWA,
/2/  AND THE OTHER OF WHOM IS THE JUDGE OF THE DISTRICT COURT OF
JACKSON COUNTY, IOWA, WHO HAD PREVIOUSLY DISMISSED HER PETITION. 

A THREE-JUDGE COURT, CONVENED PURSUANT TO 28 U.S.C. 2281, 2284, HELD
THAT THE IOWA DURATIONAL RESIDENCY REQUIREMENT WAS CONSTITUTIONAL.  360
F. SUPP. 1182 (1973).  WE NOTED PROBABLE JURISDICTION, 415 U.S. 911
(1974), AND DIRECTED THE PARTIES TO DISCUSS "WHETHER THE UNITED STATES
DISTRICT COURT SHOULD HAVE PROCEEDED TO THE MERITS OF THE
CONSTITUTIONAL ISSUE PRESENTED IN LIGHT OF YOUNGER V. HARRIS, 401 U.S.
37 (1971) AND RELATED CASES."  FOR REASONS STATED IN THIS OPINION, WE
DECIDE THAT THIS CASE IS NOT MOOT, AND HOLD THAT THE IOWA DURATIONAL
RESIDENCY REQUIREMENT FOR DIVORCE DOES NOT OFFEND THE UNITED STATES
CONSTITUTION.  /3/

I 

APPELLANT SOUGHT CERTIFICATION OF HER SUIT AS A CLASS ACTION
PURSUANT TO FED. RULE CIV. PROC. 23 SO THAT SHE MIGHT REPRESENT THE
"CLASS OF THOSE RESIDENTS OF THE STATE OF IOWA WHO HAVE RESIDED THEREIN
FOR PERIOD OF LESS THAN ONE YEAR AND WHO DESIRE TO INITIATE ACTIONS FOR
DISSOLUTION OF MARRIAGE OR LEGAL SEPARATION, AND WHO ARE BARRED FROM
DOING SO BY THE ONE-YEAR DURATIONAL RESIDENCY REQUIREMENT EMBODIED IN
STIPULATED THAT THERE WERE IN THE STATE OF IOWA "NUMEROUS PEOPLE IN THE
SAME SITUATION AS PLAINTIFF," THAT JOINDER OF THOSE PERSONS WAS
IMPRACTICABLE, THAT APPELLANT'S CLAIMS WERE REPRESENTATIVE OF THE
CLASS, AND THAT SHE WOULD FAIRLY AND ADEQUATELY PROTECT THE INTERESTS
OF THE CLASS.  SEE RULE 23 (A).  THIS STIPULATION WAS APPROVED BY THE
DISTRICT COURT IN A PRETRIAL ORDER.  /5/  AFTER THE SUBMISSION OF
BRIEFS AND PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW BY THE
PARTIES, THE THREE-JUDGE COURT BY A DIVIDED VOTE UPHELD THE
CONSTITUTIONALITY OF THE STATUTE. 

WHILE THE PARTIES MAY BE PERMITTED TO WAIVE NONJURISDICTIONAL
DEFECTS, THEY MAY NOT BY STIPULATION INVOKE THE JUDICIAL POWER OF THE
UNITED STATES IN LITIGATION WHICH DOES NOT PRESENT AN ACTUAL "CASE OR
CONTROVERSY,"  RICHARDSON V. RAMIREZ, 418 U.S. 24 (1974), AND ON THE
RECORD BEFORE US WE FEEL OBLIGED TO ADDRESS THE QUESTION OF MOOTNESS
BEFORE REACHING THE MERITS OF APPELLANT'S CLAIM.  AT THE TIME THE
JUDGMENT OF THE THREE-JUDGE COURT WAS HANDED DOWN, APPELLANT HAD NOT
YET RESIDED IN IOWA FOR ONE YEAR, AND THAT COURT WAS CLEARLY PRESENTED
WITH A CASE OR CONTROVERSY IN EVERY SENSE CONTEMPLATED BY ART. III OF
THE CONSTITUTION.  /6/  BY THE TIME HER CASE REACHED THIS IOWA CODE
598.6 (1973) NO LONGER STOOD AS A BARRIER TO HER ATTEMPTS TO SECURE
DISSOLUTION OF HER MARRIAGE IN THE IOWA COURTS.  /7/  THIS IS NOT AN
UNUSUAL DEVELOPMENT IN A CASE CHALLENGING THE VALIDITY OF A DURATIONAL
RESIDENCY REQUIREMENT, FOR MANY CASES APPELLATE REVIEW WILL NOT BE
COMPLETED UNTIL AFTER THE PLAINTIFF HAS SATISFIED THE RESIDENCY
REQUIREMENT ABOUT WHICH COMPLAINT WAS ORIGINALLY MADE. 

IF APPELLANT HAD SUED ONLY ON HER OWN BEHALF, BOTH THE FACT THAT SHE
NOW SATISFIES THE ONE-YEAR RESIDENCY REQUIREMENT AND THE FACT THAT SHE
HAS OBTAINED A DIVORCE ELSEWHERE WOULD MAKE THIS CASE MOOT AND REQUIRE
DISMISSAL.  ALTON V. ALTON, 207 F.2D 337 (CA3 1953), DISMISSED AS MOOT,
347 U.S. 610 (1954); SEC V. MEDICAL COMMITTEE FOR HUMAN RIGHTS, 404
U.S. 403 (1972).  BUT APPELLANT BROUGTH THIS SUIT AS A CLASS ACTION AND
SOUGHT TO LITIGATE THE CONSTITUTIONALITY OF THE DURATIONAL RESIDENCY
REQUIREMENT IN A REPRESENTATIVE CAPACITY.  WHEN THE DISTRICT OCURT
CERTIFIED THE PROPRIETY OF THE CLASS ACTION, THE CLASS OF UNNAMED
PERSONS DESCRIBED IN THE CERTIFICATION ACQUIRED A LEGAL STATUS SEPARATE
FROM THE INTEREST ASSERTED BY APPELLANT.  /8/  WE ARE OF THE VIEW THAT
THIS FACTOR SIGNIFICANTLY AFFECTS THE MOOTNESS DETERMINATION. 

IN SOUTHERN PACIFIC TERMINAL CO. V. ICC, 219 U.S. 498 (1911), WHERE
A CHALLENGED ICC ORDER HAD EXPIRED, AND IN MOORE V. OGILVIE, 394 U.S.
814 (1969), WHERE PETITIONERS SOUGHT TO BE CERTIFIED AS CNADIDATES IN
AN ELECTION THAT HAD ALREADY BEEN HELD, THE COURT EXPRESSED ITS CONCERN
THAT THE DEFENDANTS IN THOSE CASES COULD BE EXPECTED AGAIN TO ACT
CONTRARY TO THE RIGHTS ASSERTED BY THE PARTICULAR NAMED PLAINTIFFS
INVOLVED, AND IN EACH CASE THE CONTROVERSY WAS HELD NOT TO BE MOOT
BECAUSE THE QUESTIONS PRESENTED WERE "CAPABLE OF REPETITION, YET
EVADING REVIEW."  THAT SITUATION IS NOT PRESENTED IN APPELLANT'S CASE,
FOR THE DURATIONAL RESIDENCY REQUIREMENT ENFORCED BY IOWA DOES NOT AT
THIS TIME BAR HER FROM THE IOWA COURTS.  UNLESS WE WERE TO SPECULATE
THAT SHE MAY MOVE FROM IOWA, ONLY TO RETURN AND LATER SEEK A DIVORCE
WITHIN ONE YEAR FROM HER RETURN, THE CONCERNS THAT PROMPTED THIS
COURT'S HOLDINGS IN SOUTHERN PACIFIC AND MOORE DO NOT GOVERN
APPELLANT'S SITUATION.  BUT EVEN THOUGH APPELLEES IN THIS PROCEEDING
MIGHT NOT AGAIN ENFORCE THE IOWA DURATIONAL RESIDENCY REQUIREMENT
AGAINST APPELLANT, IT IS CLEAR THAT THEY WILL ENFORCE IT AGAINST THOSE
PERSONS IN THE CLASS THAT APPELLANT SOUGHT TO REPRESENT AND THAT THE
DISTRICT COURT CERTIFIED.  IN THIS SENSE OF THE CASE BEFORE US IS ONE
IN WHICH STATE OFFICIALS WILL UNDOUBTEDLY CONTINUE TO ENFORCE THE
CHALLENGED STATUTE AND YET, BECAUSE OF THE PASSAGE OF TIME, NO SINGLE
CHALLENGER WILL REMAIN SUBJECT TO ITS RESTRICTIONS FOR THE PERIOD
NECESSARY TO SEE SUCH A LAWSUIT TO ITS CONCLUSION. 

THIS PROBLEM WAS PRESENT IN DUNN V. BLUMSTEIN, 405 U.S. 330 (1972),
AND WAS THERE IMPLICITLY RESOLVED IN FAVOR OF THE REPRESENTATIVE OF THE
CLASS.  RESPONDENT BLUMSTEIN BROUGHT A CLASS ACTION CHALLENGING THE
TENNESSEE LAW WHICH BARRED PERSONS FROM REGISTERING TO VOTE UNLESS, AT
THE TIME OF THE NEXT ELECTION, THEY WOULD HAVE RESIDED IN THE STATE FOR
A YEAR AND IN A PARTICULAR COUNTY FOR THREE MONTHS.  BY THE TIME THE
DISTRICT COURT OPINION WAS FILED, BLUMSTEIN HAD RESIDED IN THE COUNTY
FOR THE REQUISITE THREE MONTHS, AND THE STATE CONTENDED THAT HIS
CHALLENGE TO THE COUNTY REQUIREMENT WAS MOOT.  THE DISTRICT COURT
REJECTED THIS ARGUMENT, BLUMSTEIN V. ELLINGTON, 337 F. SUPP. 323, 324 -
326 (MD TENN. 1970).  ALTHOUGH THE STATE DID NOT RAISE A MOOTNESS
ARGUMENT IN THIS COURT, WE OBSERVED THAT THE DISTRICT COURT HAD BEEN
CORRECT: 

"ALTHOUGH APPELLEE NOW CAN VOTE, THE PROBLEM TO VOTERS POSED BY THE
TENNESSEE RESIDENCE REQUIREMENTS IS '"CAPABLE OF REPETITION, YET
EVADING REVIEW."'"  405 U.S., AT 333 N. 2.  ALTHOUGH THE COURT DID NOT
EXPRESSLY NOTE THE FACT, BY THE TIME IT DECIDED THE CASE BLUMSTEIN HAD
RESIDED IN TENNESSEE FOR FAR MORE THAN A YEAR. 

THE RATIONALE OF DUNN CONTROLS THE PRESENT CASE.  ALTHOUGH THE
CONTROVERSY IS NO LONGER LIVE AS TO APPELLANT SOSNA, IT REMAINS VERY
MUCH ALIVE FOR THE CLASS OF PERSONS SHE HAS BEEN CERTIFIED TO
REPRESENT.  LIKE THE OTHER VOTERS IN DUNN, NEW RESIDENTS OF IOWA ARE
AGGRIEVED BY AN ALLEGEDLY UNCONSTITUTIONAL STATUTE ENFORCED BY STATE
OFFICIALS.  WE BELIEVE THAT A CASE SUCH AS THIS, IN WHICH, AS IN DUNN,
THE ISSUE SOUGHT TO BE LITIGATED ESCAPES FULL APPELLATE REVIEW AT THE
BEHEST OF ANY SINGLE CHALLENGER, DOES NOT INEXORABLY BECOME MOOT BY THE
INTERVENING RESOLUTION OF THE CONTROVERSY AS TO THE NAMED PLAINTIFFS. 
/9/  DUNN, SUPRA; ROSARIO V. ROCKEFELLER, 410 U.S. 752, 756 N. 5
(1973); VAUGHN V. BOWER, 313 F. SUPP. 37, 40 (ARIZ.), AFF'D, 400 U.S.
884 (1970).  /10/  WE NOTE, HOWEVER, THAT THE SAME EXIGNECY THAT
JUSTIFIES THIS DOCTRINE SERVES TO IDENTIFY ITS LIMITS.  IN CASES IN
WHICH THE ALLEGED HARM WOULD NOT DISSIPATE DURING THE NORMAL TIME
REQUIRED FOR RESOLUTION OF THE CONTROVERSY, THE GENERAL PRICIPLES OF
ART. III JURISDICTION REQUIRE THAT THE PLAINTIFF'S PERSONAL STAKE IN
THE LITIGATION CONTINUE THROUGHOUT THE ENTIRETY OF THE LITIGATION. 

OUR CONCLUSION THAT THIS CASE IS NOT MOOT IN NO WAY DETRACTS FROM
THE FIRMLY ESTABLISHED REQUIREMENT THAT THE JUDICIAL POWER OF ART. III
COURTS EXTENDS ONLY TO "CASES AND CONTROVERSIES" SPECIFIED IN THAT
ARTICLE.  THERE MUST NOT ONLY BE A NAMED PLAINTIFF WHO HAS SUCH A CASE
OR CONTROVERSY AT THE TIME THE COMPLAINT IS FILED, AND AT THE TIME THE
CLASS ACTION IS CERTIFIED BY THE DISTRICT COURT PURSUANT TO RULE 23,
/11/  BUT THERE MUST BE A LIVE CONTROVERSY AT THE TIME THIS COURT
REVIEWS THE CASE.  /12/  SEC V. MEDICAL COMMITTEE FOR HUMAN RIGHTS,
SUPRA.  THE CONTROVERSY MAY EXIST, HOWEVER, BETWEEN A NAMED DEFENDANT
AND A MEMBER OF THE CLASS REPRESENTED BY THE NAMED PLAINTIFF, EVEN
THOUGH THE CLAIM OF THE NAMED PLAINTIFF AHS BECOME MOOT. 

IN SO HOLDING, WE DISTURB NO PRINCIPLES ESTABLISHED BY OUR DECISIONS
WITH RESPECT TO CLASS ACTION LITIGATION.  A NAMED PLAINTIFF IN A CLASS
ACTION MUST SHOW THAT THE THREAT OF INJURY IN A CASE SUCH AS THIS IS
"REAL AND IMMEDIATE," NOT "CONJECTURAL" OR "HYPOTHETICAL."  O'SHEA V.
LITTLETON, 414 U.S. 488, 494 (1974); GOLDNE V. ZWICKLER, 394 U.S. 103,
109 - 110 (1969).  A LITIGANT MUST BE A MEMBER OF THE CLASS WHICH HE OR
SHE SEEKS TO REPRESENT AT THE TIME THE CLASS ACTION IS CERTIFIED BY THE
DISTRICT COURT.  BAILEY V. PATTERSON, 369 U.S. 31 (1962); ROSARIO,
SUPRA; HALL V. BEALS, 396 U.S. 45 (1969).  APPELLANT SOSNA SATISFIED
THESE CRITERIA. 

THIS CONCLUSION DOES NOT AUTOMATICALLY ESTABLISH THAT APPELLANT IS
ENTITLED TO LITIGATE THE INTERESTS OF THE CLASS SHE SEEKS TO REPRESENT,
BUT IT DOES SHIFT THE FOCUS OF EXAMINATION FROM THE ELEMENTS OF
JUSTICIABILITY TO THE ABILITY OF THE NAMED REPRESENTATIVE TO "FAIRLY
AND ADEQUATELY PROTECT THE INTERESTS OF THE CLASS."  RULE 23 (A). 
SINCE IT IS CONTEMPLATED THAT ALL MEMBERS OF THE CLASS WILL BE BOUND BY
THE ULTIMATE RULING ON THE MERITS, RULE 23 (C)(3), THE DISTRICT COURT
MUST ASSURE ITSELF THAT THE NAMED REPRESENTATIVE WILL ADEQUATELY
PROTECT THE INTERESTS OF THE CLASS.  IN THE PRESENT SUIT, WHERE IT IS
UNLIKELY THAT SEGMENTS OF THE CLASS APPELLANT REPRESENTS WOULD HAVE
INTEREST CONFLICTING WITH THOSE SHE HAS SOUGHT TO ADVANCE, /13/  AND
WHERE THE INTERESTS OF THAT CLASS HAVE BEEN COMPETENTLY URGED AT EACH
LEVEL OF THE PROCEEDING, WE BELIEVE THAT THE TEST OF RULE 23 (A) IS
MET.  WE THEREFORE ADDRESS OURSELVES TO THE MERITS OF APPELLANT'S
CONSTITUTIONAL CLAIM. 

        II 

THE DURATIONAL RESIDNECY REQUIREMNET UNDER ATTACK IN THIS CASE IS A
PART OF IOWA'S COMPREHENSIVE STATUTORY REGULATION OF DOMESTIC
RELATIONS, AN AREA THAT HAS LONG BEEN REGARDED AS A VIRTUALLY EXCLUSIVE
PROVNCE OF THE STATES.  CASES DECIDED BY THIS COURT OVER A PERIOD OF
MORE THAN A CENTURY BEAR WITNESS TO THIS HISTORICAL FACT.  IN BARBER V.
BARBER, 21 HOW.  582, 584 (1859), THE COURT SAID: "WE DISCLAIM
ALTOGETHER ANY JURISDICTION IN THE COURTS OF THE UNITED STATES UPON THE
SUBJECT OF DIVORCE . . . ."  IN PENNOYER V. NEFF, 95 U.S. 714, 734 -
735 (1878), THE COURT SAID: "THE STATE . . . HAS ABSOLUTE RIGHT TO
PRESCRIBE THE CONDITIONS UPON WHICH THE MARRIAGE RELATION BETWEEN ITS
OWN CITIZENS SHALL BE CREATED, AND THE CAUSES FOR WHICH IT MAY BE
DISSOLVED," AND THE SAME VIEW WAS REAFFIRMED IN SIMMS V. SIMMS, 175
U.S. 162, 167 (1899). 

THE STATUTORY SCHEME IN IOWA, LIKE THOSE IN OTHER STATES, SET FORTH
IN CONSIDERABLE DETAIL THE GROUNDS UPON WHICH A MARRIAGE MAY BE
DISSOLVED AND THE CIRCUMSTANCES IN WHICH A DIVORCE MAY BE OBTAINED. 
JURISDICTION OVER A PETITION FOR DISSOLUTION IS ESTABLISHED BY STATUTE
IN "THE COUNTY WHERE EITHER PARTY RESIDES," IOWA CODE 598.2 (1973), AND
THE IOWA COURTS HAVE CONSTRUED THE TERM "RESIDENT" TO HAVE MUCH THE
SAME MEANING AS IS ORDINARILY ASSOCIATED WITH THE CONCEPT OF DOMICILE. 
KORSRUD V. KORSRUD, 242 IOWA 178, 45 N. W. 2D 848 (1951).  IOWA HAS
RECENTLY REVISED ITS DIVORCE STATUTES, INCORPORATING THE NO-FAULT
CONCEPT, /14/  BUT IT RETAINED THE ONE-YEAR DURATIONAL RESIDENCY
REQUIREMENT.     THE IMPOSITION OF A DURATIONAL RESIDENCY REQUIREMENT
FOR A DIVORCE IS SCARCELY UNIQUE TO IOWA, SINCE 48 STATES IMPOSE SUCH A
REQUIREMENT AS A CONDITION FOR MAINTAINING AN ACTION FOR DIVORCE.  /15/
AS MIGHT BE EXPECTED, THE PERIODS VARY AMONG THE STATES AND RANGE FROM
SIX WEEKS /16/  TO TWO YEARS.  /17/  THE ONE-YEAR PERIOD SELECTED BY
IOWA IS THE MOST COMMON LENGTH OF TIME PRESCRIBED.  /18/ 

APPELLANT CONTENDS THAT THE IOWA REQUIREMENT OF ONE YEAR'S RESIDENCE
IS UNCONSTITUTIONAL FOR TWO SEPARATE REASONS:  FIRST, BECAUSE IT
ESTABLISHES TWO CLASSES OF PERSONS AND DISCRIMINATES AGAINST THOSE WHO
HAVE RECENTLY EXERCISED THEIR RIGHT TO TRAVEL TO IOWA, THEREBY
CONTRAVENING THE COURT'S HOLDINGS IN SHAPIRO V. THOMPSON, 394 U.S. 618
(1969); DUNN V. BLUMSTEIN, 405 U.S. 330 (1972); AND MEMORIAL HOSPITAL
V. MARICOPA COUNTY, 415 U.S. 250 (1974); AND, SECOND, BECAUSE IT DENIES
A LITIGANT THE OPPORTUNITY TO MAKE AQN INDIVIDUALIZED SHOWING OF BONA
FIDE RESIDENCE AND THEREFORE DENIES SUCH RESIDENTS ACCTSS TO THE ONLY
METHOD OF LEGALLY DISSOLVING THEIR MARRIAGE.  VLANDIS V. KLINE, 412
U.S. 411 (1973); BODDIE V. CONNECTICUT, U.S. 371 (1971) 

STATE STATUTES IMPOSING DURATIONAL RESIDENCY REQUIREMENTS WERE, OF
COURSE, INVALIDATED WHEN IMPOSED BY STATES AS A QUALIFICAITON FOR
WELFARE PAYMENTS, SHAPIRO, SUPRA; FOR VOTING, DUNN, SUPRA; AND FOR
MEDICAL CARE, MARICOPA COUNTY, SUPRA.  BUT NONE OF THOSE CASES
INTIMATED THAT THE STATES MIGHT NEVER IMPOSE DURATIONAL RESIDENCY
REQUIREMENTS, AND SUCH A PROPOSITION WAS IN FACT EXPRESSLY DISCLAIMED. 
/19/  WHAT TOSE CASES HAD IN COMMON WAS THAT THE DURATIONAL RESIDENCY
REQUIREMENTS THEY STRUCK DOWN WERE JUSTIFIED ON THE BASIS OF BUDGETARY
OR RECORDKEEPING CONSIDERATIONS WHICH WERE HELD INSUFFICIENT TO
OUTWEIGH THE CONSTITUTIONAL CLAIMS OF THE INDIVIDUALS.  BUT IOWA'S
DIVORCE RESIDENCY REQUIREMENT IS OF A DIFFERENT STRIPE.  APPELLANT WAS
NOT IRRETRIEVABLY FORECLOSED FROM OBTAINING SOME PART OF WHAT SHE
SOUGHT , AS WAS THE CASE WITH THE WELFARE RECIPIENTS IN MARICOPA
CONTY.  SHE WOULD EVENTUALLY INDIGENT PATIENT IN MARICOPA COUNTY.  SHE
WOULD EVENTUALLY QUALIFY FOR THE SAME SORT OF ADJUDICATION WHICH SHE
DEMANDED VIRTUALLY UPON HER ARRIVAL IN THE STATE.  IOWA'S REQUIREMENT
DELAYED HER ACCESS TO THE COURTS, BUT, BY FULFILLING IT, A PETITIONER
COULD ULTIMATELY OBTAIN THE SAME OPPORTUNITY FOR ADJUDICATION WHICH SHE
ASSERTS OUGHT TO BE HERS AT AN EARLIER POINT IN TIME. 

IOWA'S RESIDENCY REQUIREMENT MAY REASONABLY BE JUSTIFIED ON GROUNDS
OTHER THAN PURELY BUDGETARY CONSIDERATIONS OR ADMINISTRATIVE
CONVENIENCE.  CF. KAHN V. SHEVIN, 416 U.S. 351 (1974).  A DECREE OF
DIVORCE IS NOT A MATTER IN WHICH THE ONLY INTERESTED PARTIES ARE THE
STATE AS A SORT OF "GRANTOR," AND A PLAINTIFF SUCH AS APPELLANT IN THE
ROLE OF "GRANTEE."  BOTH SPOUSES ARE OBVIOUSLY INTERESTED IN THE
PROCEEDINGS, SINCE IT WILL AFFTECT THEIR MARITAL STATUS AND VERY LIKELY
THEIR PROPERTY RIGHTS.  WHERE A MARRIED COUPLE HAS MINOR CHILDREN, A
DECREE OF DIVORCE WOULD USUALLY INCLUDE PROVISIONS FOR THEIR CUSTODY
AND SUPPORT.  WITH CONSEQUENCES OF SUCH MOMENT RIDING ON A DIVORCE
DECREE ISSUED BY ITS COURTS, IOWA MAY INSIST THAT ONE SEEKING TO
INITIATE SUCH A PROCEEDING HAVE THE MODICUM OF ATTACHMENT TO THE STATE
REQUIRED HERE. 

SUCH A REQUIREMENT ADDITIONALLY FURTHERS THE STATE'S PARALLEL
INTERESTS BOTH IN AVOIDING OFFICIOUS INTERMEDDLING IN MATTERS IN WHICH
ANOTHER STATE HAS A PARAMOUNT INTEREST, AND IN MINIMIZING THE
SUSECPTIBILITY OF ITS OWN DIVORCE DECREES TO COLLATERAL ATTACK.  A
STATE SUCH AS IOWA MAY QUITE REASONABLY DECIDE THAT IT DOES NOT WISH TO
BECOME A DIVORCE MILL FOR UNHAPPY SPOUSES WHO HAVE LIVED THERE AS SHORT
A TIME AS APPELLANT HAD WHEN SHE COMMENCED HER ACTION IN THE STATE
COURT AFTER HAVING LONG RESIDED ELSEWHERE.  UNTIL SUCH TIME AS IOWA IS
CONVINCED THAT APPELLANT INTENDS TO REMAIN IN THE STATE, IT LACKS THE
"NEXUS BETWEEN PERSON ADN PLACE F SUCH PERMANENCE AS TO CONTROL THE
CREATION OF LEGAL RELATIONS AND RESPONSIBILITIES OF THE UTMOST
SIGNIFIANCE."  WILLIAMS V. NORTH CAROLINA, 325 U.S. 226, 229 (1945). 
PERHPAS EVEN MORE IMPORTANT, IOWA'S INTERESTS EXTEND BEYOND ITS BORDERS
AND INCLUDE THE RECOGNITION OF ITS DIVORCE DECREES BY OTHER STATES
UNDER THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION, ART. IV,
1.  FOR THAT PURPOSE, THIS COURT HAS OFTEN STATED THAT "JUDICIAL POWER
TO GRANT A DIVORCE--JURISDICTION, STRICTLY SPEAKING--IS FOUNDED ON
DOMICIL."  WILLIAMS, SUPRA; ANDREWS V. ANDREWS, 188 U.S. 14 (1903);
BELL V. BELL, 181 U.S. 175 (1901).  WHERE A DIVORCE DECREE IS ENTERED
AFTER A FINDING OF DOMICILE IN EX PARTE PROCEEDINGS, /20/  THIS COURT
HAS HELD THAT THE FINDING OF DOMICILE IS NOT BINDING UPON ANOTHER STATE
AND MAY BE DISREGARDED IN THE FACE OF "COGENT EVIDENCE" TO THE
CONTRARY.  WILLIAMS, SUPRA, AT 236.  FOR THAT REASON, THE STATE ASKED
TO ENTER SUCH A DECREE IS ENTITLED TO INSIST THAT THE PUTATIVE DIVORCE
PETITIONER SATISFY SOMETHING MORE THAN THE BARE MINIMUM OF
CONSTITUTIONAL REQUIREMENTS BEFORE A DIVORCE MAY BE GRANTED.  THE
STATE'S DECISION TO EXACT A ONE-YEAR RESIDENCY REQUIREMENT AS A MATTER
OF POLICY IS THEREFORE BUTTRESSED BY A QUITE PERMISSIBLE INFERENCE THAT
THIS REQUIREMENT NOT ONLY EFFECTUATES STATE SUBSTANTIVE POLICY BUT
LIKEWISE PROVIDES A GREATER SAFEGUARD AGAINST SUCCESSFUL COLLATERAL
ATTACK THAN WOULD A REQUIREMENT OF BONA FIDE RESIDENCE ALONE.  /21/
THIS IS PRECISELY THE SORT OF DETERMINATION THAT A STATE IN THE
EXERCISE OF ITS DOMESTIC RELATIONS JURISDICTION IS ENTITLED TO MAKE. 

WE THEREFORE HOLD THAT THE STATE INTEREST IN REQUIRING THAT THOSE
WHO SEEK A DIVORCE FROM ITS COURTS BE GENUINELY ATTACHED TO THE STATE,
AS WELL AS A DESIRE TO INSULATE DIVORCE DECREES FROM THE LIKELIHOOD OF
COLLATERAL ATTACK, REQUIRES A DIFFERENT RESOLUTION OF THE
CONSTITUTIONAL ISSUE PRESENTED THAN WAS THE CASE IN SHAPIRO, SUPRA,
DUNN, SUPRA, AND MARICOPA COUNTY, SUPRA. 

NOR ARE WE OF THE VIEW THAT THE FAILURE TO PROVIDE AN INDIVIDUALIZED
DETERMINATION OF RESIDENCY VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  VLANDIS V. KLINE, 412 U.S. 441 (1973), RELIED
UPON BY APPELLANT, HELD THAT CONNECTICUT MIGHT NOT ARBITRARILY INVOKE A
PERMANENT AND IRREBUTTABLE PRESUMPTION OF NON-RESIDENCE AGAINST
STUDENTS WHO SOUGHT TO OBTAIN IN-STATE TUITION RATES WHEN THAT
PRESUMPTION WAS NOT NECESSARILY OR UNIVERSALLY TRUE IN FACT.  BUT IN
VLANDIS THE COURT WARNED THAT ITS DECISION SHOULD NOT "BE CONSTRUED TO
DENY A STATE THE RIGHT TO IMPOSE ON A STUDENT, AS ONE ELEMENT IN
DEMONSTRATING BONA FIDE RESIDENCE, A REASONABLE DURATIONAL RESIDENCY
REQUIREMENT."  ID., AT 452.  SEE STARNS V. MALKERSON, 326 F. SUPP. 234
(MINN. 1970), AFF'D, 401 U.S. 985 (1971).  AN INDIVIDUALIZED
DETERMINATION OF PHYSICAL PRESENCE PLUS THE INTENT TO REMAIN, WHICH
APPELLANT APPARENTLY SEEKS, WOULD NOT ENTITLE HER TO A DIVORCE EVEN IF
SHE COULD HAVE MADE SUCH A SHOWING.  /22/  FOR IOWA REQUIRES NOT MERELY
"DOMICILE" IN THAT SENSE, BUT RESIDENCE IN THE STATE FOR A YEAR IN
ORDER FOR ITS COURTS TO EXERCISE THEIR DIVORCE JURISDICTION. 

IN BODDIE V. CONNECTICUT, SUPRA, THIS COURT HELD THAT CONNECTICUT
MIGHT NOT DENY ACCESS TO DIVORCE COURTS TO THOSE PERSONS WHO COULD NOT
AFFORD TO PAY THE REQUIRED FEE.  BECAUSE OF THE EXCLUSIVE ROLE PLAYED
BY THE STATE IN THE TERMINATION OF MARRIAGES, IT WAS HELD THAT
INDIGENTS COULD NOT BE DENIED AN OPPORTUNITY TO BE HEARD "ABSENT A
COUNTERVAILING STATE INTEREST OF OVERRIDING SIGNIFICANCE."  401 U.S.,
AT 377.  BUT THE GRAVAMEN OF APPELLANT SOSNA'S CLAIM IS NOT TOTAL
DEPRIVATION, AS IN BODDIE, BUT ONLY DELAY.  THE OPERATION OF THE FILING
FEE IN BODDIE SERVED TO EXCLUDE FOREVER A CERTAIN SEGMENT OF THE
POPULATION FROM OBTAINING A DIVORCE IN THE COURTS OF CONNECTICUT.  NO
SIMILAR TOTAL DEPRIVATION IS PRESENT IN APPELLANT'S CASE, AND THE DELAY
WHICH ATTENDS THE ENFORCEMENT OF THE ONE-YEAR DURATIONAL RESIDENCY
REQUIREMENT IS, FOR THE REASONS PREVIOUSLY STATED, CONSISTENT WITH THE
PROVISONS OF THE UNITED STATES CONSTITUTION. 

AFFIRMED. 

/1/  IOWA CODE 598.6 (1973) PROVIDES: 

"EXCEPT WHERE THE RESPONDENT IS A RESIDENT OF THIS STATE AND IS
SERVED BY PERSONAL SERVICE, THE PETITION FOR DISSOLUTION OF MARRIAGE,
IN ADDITION TO SETTING FORTH THE INFORMATION REQUIRED BY SECTION 598.5,
MUST STATE THAT THE PETITIONER HAS BEEN FOR THE LAST YEAR A RESIDENT OF
THE STATE, SPECIFYING THE COUNTY IN WHICH THE PETITIONER HAS RESIDED,
AND THE LENGTH OF SUCH RESIDENCE THEREIN AFTER DEDUCTING ALL ABSENCES
FROM THE STATE; AND THAT THE MAINTENANCE OF THE RESIDENCE HAS BEEN IN
GOOD FAITH AND NOT FOR THE PURPOSE OF OBTAINING A MARRIAGE DISSOLUTION
ONLY."  IOWA CODE 598.9 (1973) REQUIRES DISMISSAL OF THE ACTION "(IF
THE AVERMENTS AS TO RESIDENCE ARE NOT FULLY PROVED." 

/2/  IN THEIR ANSWER TO THE COMPLAINT, APPELLEES ASSERTED THAT THE
COURT LACKED JURISDICTION OVER THE STATE BY VIRTUE OF THE ELEVENTH
AMENDMENT, BUT THEREAFTER ABANDONED THIS DEFENSE TO THE ACTION.  WHILE
THE FAILURE OF THE STATE TO RAISE THE DEFENSE OF SOVEREIGN IMMUNITY IN
THE DISTRICT COURT WOULD NOT HAVE BARRED IOWA FROM RAISING THAT ISSUE
IN THIS COURT, EDELMAN V. JORDAN, 415 U.S. 651 (1974); FORD MOTOR CO.
V. DEPARTMENT OF TREASURY OF INDIANA, 323 U.S. 459 (1945), NO SUCH
DEFENSE HAS BEEN ADVANCED IN THIS COURT.  THE FAILURE OF IOWA TO RAISE
THE ISSUE HAS LIKEWISE LEFT US WITHOUT ANY GUIDANCE FROM THE PARTIES'
BRIEFS AS TO THE CIRCUMSTANCES UNDER WHICH IOWA LAW PERMITS WAIVER OF
THE DEFENSE OF SOVEREIGN IMMUNITY BY ATTORNEYS REPRESENTING THE STATE. 
OUR OWN EXAMINATION OF IOWA PRECEDENTS DISCLOSES, HOWEVER, THAT THE
IOWA SUPREME COURT HAS HELD THAT THE STATE CONSENTS TO SUIT AND WAIVES
ANY DEFENSE OF SOVEREIGN IMMUNITY BY ENTERING A VOLUNTARY APPEARANCE
AND DEFENDING A SUIT ON THE MERITS.  MCKEOWN V. BROWN, 167 IOWA 489,
499, 149 N.W. 593, 597 (1914).  THE LAW OF IOWA ON THE POINT THEREFORE
APPEARS TO BE DIFFERENT FROM THE LAW OF INDIANA TREATED IN FORD,
SUPRA. 

/3/  OUR REQUEST THAT THE PARTIES ADDRESS THEMSELVES TO YOUNGER V.
HARRIS, 401 U.S. 37 (1971), AND RELATED CASES, INDICATED OUR CONCERN AS
TO WHETHER EITHER THIS COURT OR THE DISTRICT COURT SHOULD REACH THE
MERITS OF THE CONSTITUTIONAL ISSUE PRESENTED BY THE PARTIES IN LIGHT OF
APPELLANT SOSNA'S FAILURE TO APPEAL THE ADVERSE RULING OF THE STATE
DISTRICT COURT THROUGH THE STATE APPELLATE NETWORK.  IN RESPONSE TO OUR
REQUEST, BOTH PARTIES URGED THAT WE REACH THE MERITS OF APPELLANT'S
CONSTITUTIONAL ATTACK ON IOWA'S DURATIONAL RESIDENCY REQUIREMENT. 

IN THIS POSTURE OF THE CASE, AND IN THE ABSENCE OF A DISAGREEMENT
BETWEEN THE PARTIES, WE HAVE NO OCCASION TO CONSIDER WHETHER ANY
CONSEQUENCES ADVERSE TO APPELLANT RESULTED FROM HER FIRST OBTAINING AN
ADJUDICATION OF HER CLAIM ON THE MERITS IN THE IOWA STATE COURT AND
ONLY THEN COMMENCING THIS ACTION IN THE UNITED STATES DISTRICT COURT. 

/4/  SINCE JURISDICTION WAS PREDICATED ON 28 U.S.C. 1343 (3), THIS
CASE PRESENTS NO PROBLEM OF AGGREGATION OF CLAIMS IN AN ATTEMPT TO
SATISFY THE REQUISITE AMOUNT IN CONTROVERSY OF 28 U.S.C. 1331 (A).  CF.
ZAHN V. INTERNATIONAL PAPER CO., 414 U.S. 291 (1973); SNYDER V. HARRIS,
394 U.S. 332 (1969).  ALTHOUGH THE COMPLAINT DID NOT SO SPECIFY, THE
ABSENCE OF A CLAIM FOR MONETARY RELIEF AND THE NATURE OF THE CLAIM
ASSERTED DISCLOSE THAT A RULE 23 (B)(2) CLASS ACTION WAS CONTEMPLATED. 
THEREFORE, THE PROBLEMS ASSOCIATED WITH A RULE 23 (B) (3) CLASS ACTION,
WHICH WERE CONSIDERED BY THIS COURT LAST TERM IN EISEN V. CARLISLE &
JACQUELIN, 417 U.S. 156 (1974), ARE NOT PRESENT IN THIS CASE. 

/5/  THE DEFENDANT STATE COURT JUDGE NEITHER RAISED ANY CLAIM OF
IMMUNITY AS A DEFENSE TO APPELLANT'S ACTION, NOR QUESTIONED THE
PROPRIETY OF THE APPELLANT'S EFFORT TO REPRESENT A STATEWIDE CLASS
AGAINST HIM WHO APPARENTLY SAT IN A SINGLE COUNTY OR JUDICIAL DISTRICT
WITHIN THE STATE. 

/6/  THE DISTRICT COURT WAS AWARE OF THE POSSIBILITY OF MOOTNESS,
360 F. SUPP. 1182, 1183 N. 5 (ND IOWA 1973), AND EXPRESSED THE VIEW
THAT EVEN THE "TERMINATION OF PLAINTIFF'S DEFERRAL PERIOD ... WOULD NOT
RENDER THIS CASE MOOT SINCE THE CAUSE BEFORE US IS A CLASSS ACTION AND
THE COURT IS CONFRONTED WITH THE REASONABLE LIKELIHOOD THAT THE PROBLEM
WILL OCCUR TO MEMBERS OF THE CLASS OF WHICH PLAINTIFF IS CURRENTLY A
MEMBER." 

/7/  COUNSEL FOR APPELLANT DISCLOSED AT ORAL ARGUMENT THAT APPELLANT
HAS IN FACT OBTAINED A DIVORCE IN NEW YORK.  TR. OF ORAL ARG. 22. 

/8/  THE CERTIFICATION OF A SUIT AS A CLASS ACTION HAS IMPORTANT
CONSEQUENCES FOR THE UNNAMED MEMBERS OF THE CLASS.  IF THE SUIT
PROCEEDS TO JUDGMENT ON THE MERITS, IT IS CONTEMPLATED THAT THE
DECISION WILL BIND ALL PERSONS WHO HAVE BEEN FOUND AT THE TIME OF
CERTIFICATION TO BE MEMBERS OF THE CLASS.  RULE 23 (C)(3); ADVISORY
COMMITTEE NOTE, 39 F.R.D. 69, 105 - 106.  ONCE THE SUIT IS CERTIFIED AS
A CLASS ACTION, IT MAY NOT BE SETTLED OR DISMISSED WITHOUT THE APPROVAL
OF THE COURT.  RULE 23 (E). 

/9/  THIS VIEW DRAWS STRENGTH FROM THE PRACTICAL DEMANDS OF TIME.  A
BLANKET RULE UNDER WHICH A CLASS ACTION CHALLENGE TO A SHORT DURATIONAL
RESIDENCY REQUIREMENT WOULD BE DISMISSED UPON THE INTERVENING MOOTNESS
OF THE NAMED REPRESENTATIVE'S DISPUTE WOULD PERMIT A SIGNIFICANT CLASS
OF FEDERAL CLAIMS TO REMAIN UNREDRESSED FOR WANT OF A SPOKESMAN WHO
COULD RETAIN A PERSONAL ADVERSARY POSITION THROUGHOUT THE COURSE OF THE
LITIGATION.  SUCH A CONSIDERATION WOULD NOT ITSELF JUSTIFY ANY
RELAXATION OF THE PROVISION OF ART. III WHICH LIMITS OUR JURISDICTION
TO "CASES AND CONTROVERSIES," BUT IT IS A FACTOR SUPPORTING THE RESULT
WE REACH IF CONSISTENT WITH ART. III.  FOR THE REASONS STATED IN THE
TEXT, INFRA, WE BELIEVE THAT OUR HOLDING HERE DOES COMPORT WITH BOTH
THE LANGUAGE OF ART. III AND OUR PRIOR DECISIONS.     /10/  THIS HAS
BEEN THE PREVAILING VIEW IN THE CIRCUITS.  SEE, E.G., CLEAVER V.
WILCOX, 499 F. 2D 940 (CA9 1974); RIVERA V. FREEMAN, 469 F.2D 1159 (CA9
1972); CONOVER V. MONTEMURO, 477 F.2D 1073 (CA3 1972); ROBERTS V. UNION
CO., 487 F.2D 387 (CA6 1973); SHIFFMAN V. ASKEW, 359 F. SUPP. 1225 (MD
FLA. 1973), AFF'D SUB NOM. MAKRES V. ASKEW, 500 F.2D 577 (CA5 1974);
MOSS V. LANE CO., INC., 471 F.2D 853 (CA4 1973).  CONTRA: WATKINS V.
CHICAGO HOUSING AUTHORITY, 406 F.2D 1234 (CA2 1969); CF. NORMAN V.
CONNECTICUT STATE BOARD OF PAROLE, 458 F.2D 497 (CA2 1972). 

/11/  THERE MAY BE CASES IN WHICH THE CONTROVERSY INVOLVING THE NAMED
PLAINTIFFS IS SUCH THAT IT BECOMES MOOT AS TO THEM BEFORE THE DISTRICT
COURT CAN REASONABLY BE EXPECTED TO RULE ON A CERTIFICATION MOTION.  IN
SUCH INSTANCES, WHETHER THE CERTIFICATION CAN BE SAID TO "RELATE BACK"
TO THE FILING OF THE COMPLAINT MAY DEPEND UPON THE CIRCUMSTANCES OF THE
PARTICULAR CASE AND ESPECIALLY THE REALITY OF THE CLAIM THAT OTHERWISE
THE ISSUE WOULD EVADE REVIEW. 

/12/  WHEN THIS COURT HAS ENTERTAINED DOUBT ABOUT THE CONTINUING
NATURE OF A CASE OR CONTROVERSY, IT HAS REMANDED THE CASE TO THE LOWER
COURT FOR CONSIDERATION OF THE POSSIBILITY OF MOOTNESS.  INDIANA
EMPLOYMENT DIV. V. BURNEY, 409 U.S. 540 (1973). 

/13/  THERE ARE FREQUENTLY CASES IN WHICH IT APPEARS THAT THE
PARTICULAR CLASS A PARTY SEEKS TO REPRESENT DOES NOT HAVE A SUFFICIENT
HOMOGENEITY OF INTERESTS TO WARRANT CERTIFICATION.  HANSBERRY V. LEE,
311 U.S. 32, 44 (1940); PHILLIPS V. KLASSEN, -- U.S. APP. D.C. --, 502
F.2D 362, CERT. DENIED, POST, P. 996.  IN THIS CASE, HOWEVER, IT IS
DIFFICULT TO IMAGINE WHY ANY PERSON IN THE CLASS APPELLANT REPRESENTS
WOULD HAVE AN INTEREST IN SEEING IOWA CODE 598.6 (1973) UPHELD. 

/14/  SEE GENERALLY PETERS, IOWA REFORM OF MARRIAGE TERMINATION, 20
DRAKE L. REV. 211 (1971). 

/15/  LOUISIANA AND WASHINGTON ARE THE EXCEPTIONS.  LA. CODE CIV.
PROC., ART. 10A (7) (SUPP. 1974); BUT SEE ART. 10B PROVIDING THAT "IF A
SPOUSE HAS ESTABLISHED AND MAINTAINED A RESIDENCE IN A PARISH OF THIS
STATE FOR A PERIOD OF TWELVE MONTHS, THERE SHALL BE A REBUTTABLE
PRESUMPTION THAT HE HAS A DOMICILE IN THIS STATE IN THE PARISH OF SUCH
RESIDENCE."  WASH. LAWS 1973, 1ST EX. SESS., C. 157.  AMONG THE OTHER
48 STATES, THE DURATIONAL RESIDENCY REQUIREMENTS ARE OF MANY VARIETIES,
WITH SOME APPLICABLE TO ALL DIVORCE ACTIONS, OTHERS ONLY WHEN THE
RESPONDENT IS NOT DOMICILED IN THE STATE, AND STILL OTHERS APPLICABLE
DEPENDING ON WHERE THE GROUNDS FOR DIVORCE ACCRUED.  SEE THE 50-STATE
COMPLIATION ISSUED BY THE NATIONAL LEGAL AID AND DEFENDER ASSOCIATION,
DIVORCE, ANNULMENT AND SEPARATION IN THE UNITED STATES (1973). 

/16/  SEE, E.G., IDAHO CODE 32 - 701 (1963); NEV. REV. STAT. 125.  -
020 (1973). 

/17/  SEE, E.G., R.I. GEN LAWS ANN. 15 - 5 - 12 (1970); MASS. GEN.
LAWS ANN., C. 208, 4 - 5 (1958 AND SUPP. 1974). 

/18/  A MAJORITY OF THE STATES IMPOSE A ONE-YEAR RESIDENCY
REQUIREMENT OF SOME KIND.  DIVORCE, ANNULMENT AND SEPARATION IN THE
UNITED STATES, SUPRA, N. 15. 

/19/  SHAPIRO, 394 U.S., AT 638 N. 21; MARICOPA COUNTY, 415 U.S., AT
258 - 259. 

/20/  WHEN A DIVORCE DECREE IS NOT ENTERED ON THE BASIS OF EX PARTE
PROCEEDINGS, THIS COURT HELD IN SHERRER V. SHERRER, 334 U.S. 343, 351 -
352 (1948):  "(THE REQUIREMENTS OF FULL FAITH AND CREDIT BAR A
DEFENDANT FROM COLLATERALLY ATTACKING A DIVORCE DECREE ON
JURISDICTIONAL GROUNDS IN THE COURTS OF A SISTER STATE WHERE THERE HAS
BEEN PARTICIPATION BY THE DEFENDANT IN THE DIVORCE PROCEEDINGS, WHERE
THE DEFENDANT HAS BEEN ACCORDED FULL OPPORTUNITY TO CONTEST THE
JURISDICTIONAL ISSUES, AND WHERE THE DECREE IS NOT SUSCEPTIBLE TO SUCH
COLLATERAL ATTACK IN THE COURTS OF THE STATE WHICH RENDERED THE
DECREE." 

OUR BROTHER MARSHALL ARGUES IN DISSENT THAT THE IOWA DURATIONAL
RESIDENCY REQUIREMENT "SWEEPS TO BROADLY" SINCE IT IS NOT LIMITED TO EX
PARTE PROCEEDINGS AND COULD BE NARROWED BY A WAIVER PROVISION.  POST,
AT 425.  BUT IOWA'S DURATIONAL RESIDENCY REQUIREMENT CANNOT BE TAILORED
IN THIS MANNER WITHOUT DISRUPTING SETTLED PRINCIPLES OF IOWA PRACTICE
AND PLEADING.  IOWA'S RULES GOVERNING SPECIAL APPEARANCES MAKE IT
IMPOSSIBLE FOR THE STATE COURT TO KNOW, EITHER AT THE TIME A PETITION
FOR DIVORCE IS FILED OR WHEN A MOTION TO DISMISS FOR WANT OF
JURISDICTION IS FILED, WHETHER OR NOT A DEFENDANT WILL APPEAR AND
PARTICIPATE IN THE DIVORCE PROCEEDINGS.  IOWA RULES CIV. PROC. 66,
104.  THE FACT THAT THE STATE LEGISLATURE MIGHT CONCEIVABLY ADIPT A
SYSTEM OF WAIVERS AND REVISE CURT RULES GOVERNING SPECIAL APPEARANCES
DOES NOT MAKE SUCH DETAILED REWRITING APPROPRIATE BUSINESS FOR THE
FEDERAL JUDICIARY. 

/21/  SINCE THE MAJORITY OF STATES REQUIRE RESIDENCE FOR AT LEAST A
YEAR, SEE N. 18, SUPRA, IT IS REASONABLE TO ASSUME THAT IOWA'S ONE-YEAR
"FLOOR"  MAKES ITS DECREES LESS SUSCEPTIBLE TO SUCESSFUL COLLATERAL
ATTACK IN OTHER STATES.  AS THE COURT OF APPELAS FOR THE FIFTH CIRCUIT
OBSERVED IN UPHOLDING A SIX-MONTH DURATIONAL RESIDENCY REQUIREMENT
IMPOSED BY FLORIDA, AN OBJECTIVE TEST MAY IMPART TO A STATE'S DIVORCE
DECREES "A VERITY THAT TENDS TO SAFEGUARD THEM AGAINST THE SUSPICIOUS
EYES OF OTHER STATES' PROSECUTORIAL AUTHORITIES, THE SUSPICIONS OF
PRIVATE COUNSEL IN OTHERE STATES, AND THE POST-DECREE DISSATISFACTIONS
OF PARTIES TO THE DIVORCE WHO WISH A SECOND BITE.  SUCH A REPUTATION
FOR VALIDITY OF DIVORCE DECREES IS NOT, THEN, MERELY COSMETIC."  MAKRES
V. ASKEW, 500 F.2D 577, (1974), AFF'G 359 F. SUPP. 1225 (MD FLA.
1973). 

/22/  IN ADDITION TO A SHOWING OF RESIDENCE WITHIN THE STATE FOR A
YEAR, IOWA CODE 598.6 (1973) REQUIRES ANY PETITION FOR DISSOLUTION TO
STATE "THAT THE MAINTENANCE OF THE RESIDENCE HAS BEEN IN GOOD FAITH AND
NOT FOR THE PURPOSE OF OBTAINING A MARRIAGE DISSOLUTION ONLY."  IN
DISMISSING APPELLANT'S PETITION INSTATE COURT, JUDGE KECK OBSERVED THAT
APPELLANT HAD FAILED TO ALLEGE GOOD-FAITH RESIDENCE.  (JURISDICTIONAL
STATEMENT APP. B.2.) 

MR. JUSTICE WHITE, DISSENTING. 

IT IS AXIOMATIC THAT ART. III OF THE CONSTITUTION IMPOSES A
"THRESHOLD REQUIREMENT ... THAT THOSE WHO SEEK TO INVOKE THE POWER OF
FEDERAL COURTS MUST ALLEGE AN ACTUAL CASE OR CONTROVERSY."  O'SHEA V.
LITTLETON, 414 U.S. 488, 493 (1974); FLAST V. COHEN, 392 U.S. 83, 94 -
101 (1968); JENKINS V. MCKEITHEN, 395 U.S. 411, 421 - 425 (1969)
(OPINION OF MARSHALL, J.).  TO SATISFY THE REQUIREMENT, PLAINTIFFS MUST
ALLEGE "SOME THREATENED OR ACTUAL INJURY," LINDA R.S. V. RICHARD D.,
410 U.S. 614, 617 (1973), THAT IS "REAL AND IMMEDIATE" AND NOT
CONJECTURAL OR HYPOTHETICAL.  GOLDEN V. ZWICKLER, 394 U.S. 103, 108 -
109 (1969); MARYLAND CASUALTY CO. V. PACIFIC COAL & OIL CO., 312 U.S.
270, 273 (1941); PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 98 - 91
(1947).  FURTHERMORE, AND OF GREASTEST RELEVANCE HERE: 

"THE FUNDAMENTAL ASPECT OF STANDING IS THAT IT FOCUSES ON THE PARTY
SEEKING TO GET HIS COMPLAINT BEFORE A FEDERAL COURT AND NOT ON THE
ISSUES HE WISHES TO HAVE ADJUDICATED.  THE 'GIST OF THE QUESTION OF
STANDING' IS WHETHER THE PARTY SEEKING RELIEF HAS 'ALLEGED SUCH A
PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY AS TO ASSURE THAT
CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF ISSUES UPON
WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULT
CONSTITUTIONAL QUESTIONS.'  BAKER V. CARR, 369 U.S. 186, 204 (1962). 
IN OTHER WORDS, WHEN STANDING IS PLACED IN ISSUE IN A CASE, THE
QUESTION IS WHETHER THE PERSON WHOS STANDING IS CHALLENGED IS A PROPER
PARTY TO REQUEST AN ADJUDICATION OF A PARTICULAR ISSUE AND NOT WHETHER
THE ISSUE ITSELF IS JUSTICIABLE."  FLAST V. COHEN, SUPRA, AT 99 - 100
(FOOTNOTE OMITTED). 

ALL OF THIS THE COURT CONCEDES.  IT IS CONCEDED AS WELL THAT HAD THE
NAMED PLAINTIFF IN THIS CASE NOT BROUGHT A CLASS ACTION, THE CASE WOULD
NOW BE DISMISSED AS MOOT BECAUSE THE PLAINTIFF, APPELLANT HERE, HAS NOW
SATISFIED THE IOWA RESIDENCY REQUIREMENT AND, WHAT IS MORE, HAS SECURED
A DIVORCE IN ANOTHER STATE.  APPELLANT COULD NOT HAVE BEGUN THIS SUIT
EITHER FOR HERSELF OR FOR A CLASS IF AT THE TIME OF FILING SHE HAD BEEN
AN IOWA RESIDENT FOR A YEAR OR HAD SECURED A DIVORCE IN ANOTHER
JURISDICTION.  THERE MUST BE A NAMED PLAINTIFF INITIATING THE ACTION
WHO HAS AN EXISTING CONTROVERSY WITH THE DEFENDANT, WHETHER THE
PLAINTIFF IS SUING ON HIS OWN BEHALF OR ON BEHALF OF A CLASS AS WELL. 
HOWEVER UNQUESTIONED IT MAY BE THAT A CLASS OF PERSONS IN THE COMMUNITY
HAS A "REAL"  DISPUTE OF SUBSTANCE WITH THE DEFENDANT, AN ATTORNEY MAY
NOT INITIATE A CLASS ACTION WITHOUT HAVING A CLIENT WITH A PERSONAL
STAKE IN THE CONTROVERSY WHO IS A MEMBER OF THE CLASS, AND WHO IS
WILLING TO BE THE NAMED PLAINTIFF IN THE CASE.  THE COURT RECENTLY MADE
THIS VERY CLEAR WHEN IT SAID THAT "IF NONE OF THE NAMED PLAINTIFFS
PURPORTING TO REPRESENT A CLASS ESTABLISHES THE REQUISITE OF A CASE OR
CONTROVERSY WITH THE DEFENDANTS, NONE MAY SEEK RELIEF ON BEHALF OF
HIMSELF OR ANY OTHER MEMBER OF THE CLASS.  O'SHEA V. LITTLETON, SUPRA,
AT 494 (FOOTNOTE OMITTED). 

THE COURT NEVERTHELESS HOLDS THAT ONCE A CASE IS CERTIFIED AS A
CLASS ACTION, THE NAMED PLAINTIFF MAY LOSE THAT STATUS WHICH HAD
QUALIFIED HIM TO BRING THE SUIT AND STILL BE ACCEPTABLE AS A PARTY TO
PROSECUTE THE SUIT TO CONCLUSION ON BEHALF OF THE CLASS.  I AM UNABLE
TO AGREE.  THE APPELLANT NOW SATISFIES THE IOWA RESIDENCE REQUIREMENT
AND HAS SECURED A DIVORCE.  SHE RETAINS NO REAL INTEREST WHATSOEVER IN
THIS CONTROVERSY, CERTAINLY NOT AN INTEREST THAT WOULD HAVE ENTITLED
HER TO BE A PLAINTIFF IN THE FIRST PLACE, EITHER ALONE OR AS
REPRESENTING A CLASS.  IN REALITY, THERE IS NO LONGER A NAMED PLAINTIFF
IN THE CASE, NO MEMBER OF THE CLASS BEFORE THE COURT.  THE UNRESOLVED
ISSUE, THE ATTORNEY, AND A CLASS OF UNNAMED LITIGANTS REMAIN.  NONE OF
THE ANONYMOUS MEMBERS OF THE CLASS IS PRESENT TO DIRECT COUNSEL AND
ENSURE THAT CLASS INTERESTS ARE BEING PROPERLY SERVED.  FOR ALL
PRACTICAL PURPOSES, THIS CASE HAS BECOME ONE-SIDED AND HAS KOST THE
ADVERSARY QUALITY NECESSARY TO SATISFY THE CONSTITUTIONAL "CASE OR
CONTROVERSY" RE QUIREMENT.  A REAL ISSUE UNQUESTIONABLY REMAINS, BUT
THE NECESSARY ADVERSE PARTY TO PRESS IT HAS DISAPPEARED. 

THE COURT THUS DILUTED THE JURISDICITONAL COMMAND OF ART. III TO A
MERE PRUDENTIAL GUIDELINE.  THE ONLY SPECIFIC, IDENTIFIABLE INDIVIDUAL
WITH AN EVIDENT CONTINUING INTEREST IN PRESENTING AN ATTACK UPON THE
RESIDENCY REQUIREMENT IS APPELLANT'S COUNSEL.  THE COURT IN REALITY
HOLDS THWT AN ATTORNEY'S COMPETENCE IN PRESENTING HIS CASE, EVALUATED
POST HOC THROUGH A REVIEW OF HIS PERFORMANCE AS REVEALED BY THE RECORD,
FULFILLS THE "CASE OR CONTROVERSY" MANDATE.  THE LEGAL FICTION EMPLOYED
TO CLOAK THIS REALITY IS THE REIFICATION OF AN ABSTRACT ENTITY, "THE
CLASS," CONSTITUTED OF FACELESS, UNNAMED INDIVIDUALS WHO ARE DEEMED TO
HAVE A LIVE CASE OR CONTROVERSY WITH APPELLEES.  /1/ 

NO PRIOR DECISION DECISION SUPPORTS THE COURT'S BROAD RATIONALE.  IN
CASES IN WHICH THE INADEQUACY OF THE NAMED REPRESENTATIVE'S CLAIM HAS
BECOME APPARENT PRIOR TO CLASS CERTIFIFICATION, THE COURT HAS BEEN
EMPHATIC IN REJECTING THE ARGUMENT THAT THE CLASS ACTION COULD STILL BE
PURSUED.  O'SHEA V. LITTLETON, SUPRA, AT 494 - 495; BAILEY V.
PATTERSON, 369 U.S. 31, 32 - 33 (1962).  CF. RICHARDSON V. RAMIREZ, 418
U.S. 24 (1974); HALL V. BEALS, 396 U.S. 45, 48 - 49 (1969). 

IT IS TRUE THAT DUNN V. BLUMSTEIN, 405 U.S. 330, 333 N. 2 (1972),
LOOKS IN THE OTHER DIRECTION.  THERE, BY THE TIME THE COURT RENDERED
ITS DECISION, THE CLASS REPRESENTATIVE IN AN ACTION CHALLENGING A
DURATIONAL RESIDENCY REQUIREMENT FOR VOTING HAD SATISFIED THE
REQUIREMENT AND WAS ELIGIBLE TO VOTE IN THE NEXT ELECTION.  THE COURT
INDICATED THAT THE CASE WAS NOT MOOT, SAYING THAT THE ISSE WAS "CAPABLE
OF REPETITION, YET EVADING REVIEW."  BUT THE QUESTION WAS NOT CONTESTED
BETWEEN THE PARTIES AND WAS NOTED ONLY IN PASSING.  ITS REMIFICATIONS
FOR THE QUESTION OF MOOTNESS IN A CLASS ACTION SETTING WERE NOT
EXPLORED.  ALTHOUGH I JOINED THE OPINION IN THAT CASE, I DO NOT DEEM IT
DISPOSITIVE OF THE JURISDICITONAL ISSUE HERE, ESPECIALLY IN LIGHT OF
INDIANA EMPLOYMENT DIVISION V. BURNEY, 409 U.S. 540 (1973).  THERE THE
CLASS REPRESENTATIVE'S CLAIM HAD BEEN FULLY SETTLED, AND THE COURT
REMANDED THE CASE TO THE DISTRICT COURT FOR CONSIDERATION OF MOOTNESS,
A COURSE WHICH THE MAJORITY, RELYING ON DUNN, REJECTS HERE.  AS I SEE
IT, THE QUESTION OF WHETHER A CLASS ACTION SURVIVES AFTER THE
REPRESENTATIVE'S CLAIM HAS BEEN MOOTED REMAINS UNSETTLED BY PRIOR
DECISIONS.  INDEED, WHAT AUTHORITY THERE IS PROVIDES MORE SUPPORT FOR A
CONSLUSION THAT WHEN THE PERSONNAL STAKE OF THE NAMED PLAINTIFF
TERMINATES, THE CLASS ACTION FAILS.  ALTHOUGH THE COURT CITES DUNN V.
BLUNSTEIN, SUPRA AS CONTROLLING AUTHORITY, THE PRINCIPAL BASIS FOR ITS
APPROACH IS A CONCEPTION OF THE CLASS ACTION THAT SUBSTANTIALLY
DISSIPATES THE CASE-OR-CONTROVERSY REQUIREMENT AS WELL AS THE NECESSITY
FOR ADEQUATE REPRESENTATION UNDER FED. RULE CIV. PROC. 23 (A)(4).  IN
THE COURT'S VIEW, THE LITIGATION BEFORE US IS SAVED FROM MOOTNESS ONLY
BY THE FACT THAT CLASS CERTIFICATION OCCURRED PRIOR TO APPELLANT'S
CHANGE IN CIRCUMSTANCE.  IN JUSTIFICATION, THE COURT POINTS TO TWO
SIGNIFICANT CONSEQUENCES OF CERTIFICATION.  FIRST, ONCE CERTIFIED, THE
CLASS ACTION MAY NOT BE SETTLED OR DISMISSED WITHOUT THE DISTRICT
COURT'S APPROVAL.  SECOND, IF THE ACTION RESULTS IN A JUDGMENT ON THE
MERITS, THE DECISION WILL BIND ALL MEMBERS FOUND AT THE TIME OF
CERTIFICATION TO BE MEMBERS OF THE CLASS.  THESE ARE SIGNIFICANT
ASPECTS OF CLASS-ACTION PROCEDURE, BUT IT IS NOT EVIDENT AND NOT
EXPLAINED HOW AND WHY THESE PROCEDURAL CONSEQUENCES OF CERTIFICATION
MODIFY THE NORMAL MOOTNESS CONSIDERATIONS WHICH WOULD OTHERWISE
ATTACH.  CERTIFICATION IS NO SUBSTITUTE FOR A LIVE PLAINTIFF WITH A
PERSOANL INTEREST IN THE CASE SUFFICIENT TO MAKE IT AN ADVERSARY
PROCEEDING.  MOREOVER, CERTIFICATION IS NOT IRREVERSIBLE OR
INALTERABLE; IT "MAY BE CONDITIONAL, AND MAY BE ALTERED OR AMENDED
BEFORE THE DECISION ON THE MERITS."  RULE 23 (C)(1).  /2/  FURTHERMORE,
UNDER RULE 23 (D) THE COURT MAY MAKE VARIOUS TYPES OF ORDERS IN
CONDUCTING THE LITIGATION, INCLUDING AN ORDER THAT NOTICE BE GIVERN "OF
THE OPPORTUNITY OF MEMBERS TO SIGNIFY WHETHER THEY CONSIDER THE
REPRESENTATION FAIR AND ADEQUATE, TO INTERVENE AND PRESENT CLAIMS OR
DEFENSES, OR OTHERWISE TO COME INTO THE ACTION" AND "REQUIRING THAT THE
PLEADINGS BE AMENDED TO ELIMINATE THEREFROM ALLEGATION AS TO
REPRESENTATION OF ABSENT PERSONS . . . ."  /3/  CLASS LITIGATIONIS MOST
OFTEN CHARACTERIZED BY ITS COMPLEXITY AND CONCOMITANT FLEXIBILITY OF A
COURT IN MANAGING IT, AND EMPHASIS UPON ONE POINT IN THE PROCESS FLIES
IN THE FACE OF THAT REALITY. 

THE NEW CERTIFICATION PROCEDURE OF RULE 23 (C)(1), AS AMENDED IN
1966, WAS NOT INTENDED TO MODIFY THE STRICTURES OF FED. RULE CIV. PROC.
82 THAT "(THESE RULES SHALL NOT BE CONSTRUED TO EXTEND ... THE
JURISDICTION OF THE UNITED STATES DISTRICT COURTS ...."  CF. SNYDER V.
HARRIS, 394 U.S. 332, 337 - 338 (1969).  THE INTENTION BEHIND THE
CERTIFICATION AMENDMENT, WHICH HAD NO COUNTERPART IN THE EARLIER
VERSION OF THE RULE, WAS MERELY "TO GIVE CLEAR DEFINITION TO THE ACTION
. . . ."  ADVISORY COMMITTEE NOTE, 28 U.S.C., P. 7767; 3B J. MOORE,
FEDERAL PRACTICE 23.50, PP. 23 - 1101 TO 23 - 1102 (1974), NOT AS THE
COURT WOULD NOW HAVE IT, TO AVOID JURISDICTIONAL PROBLEMS OF MOOTNESS. 
/4/ 

IT IS CLAIMED THAT THE CERTIFIED CLASS SUPPLIES THE NECESSARY
ADVERSE PARTIES FOR A CONTINUING CASE OR CONTROVERSY WITH APPELLEES. 
THIS IS NOT TRUE; BUT EVEN IF IT WERE, THE COURT IS LEFT WITH THE
PROBLEM OF DETERMINING WHETHER THE CLASS ACTION IS STILL A GOOD ONE AND
WHETHER UNDER RULE 23 (A)(4) APPELLANT IS A FAIR AND ADEQUATE
REPRESENTATIVE OF THE CLASS.  THAT APPELLANT CAN NO LONGER IN ANY
REALISTIC SENSE BE CONSIDERED A MEMBER OF THE CLASS MAKES THESE
DETERMINATIONS IMPERATIVE.  THE COURT DISPOSES OF THE PROBLEM TO ITS
OWN SATISFACTION BY SAYING THAT IT IS UNLIKELY THAT SEGMENTS OF THE
CLASS APPELLANT REPRESENTS WOULD HAVE CONFLICTING INTERESTS WITH THOSE
SHE HAS SOUGHT TO ADVANCE AND THAT BECAUSE THE INTERESTS OF THE CLASS
HAVE BEEN COMPETENTLY URGED AT EACH LEVEL OF THE PROCEEDING THE TEST OF
RULE 23 (A)(4) IS MET.  THE COURT CITES NO AUTHORITY FOR THIS
RETROSPECTIVE DECISION AS TO THE ADEQUACY OF REPRESENTATION WHICH SEEMS
TO FOCUS ON THE COMPETENCE OF COUNSEL RATHER THAN A PARTY PLAINTIFF WHO
IS A REPRESENTATIVE MEMBER OF THE CLASS.  /5/  AT THE VERY LEAST, THE
CASE SHOULD BE REMANDED TO THE DISTRICT COURT WHERE THESE
CONSIDERATIONS COULD BE EXPLORED AND THE DESIRABILITY OF ISSUING ORDERS
UNDER RULE 23 (D) TO PROTECT THE CLASS MIGHT BE CONSIDERED. 

THE COURT'S REFUSAL TO REMAND FOR CONSIDERATION OF MOOTNESS AND
ADEQUACY OF REPRESENTATION CAN BE EXPLAINED ONLY BY ITS APPARENT NOTION
THAT THERE MAY BE CATEGORIES OF ISSUES WHICH WILL PERMIT LOWER COURTS
TO PASS UPON THEM BUT WHICH BY THEIR VERY NATURE WILL BECOME MOOT
BEFORE THIS COURT CAN ADDRESS THEM.  THUS IT IS SAID THAT "NO SINGLE
CHALLENGER WILL REMAIN SUBJECT TO (THE RESIDENCY REQUIREMENT) FOR THE
PERIOD NECESSARY TO SEE SUCH A LAWSUIT TO ITS CONCLUSION."  ANTE, AT
400.  HENCE, THE COURT PERCEIVES THE NEED FOR A GENERAL RULE WHICH WILL
ELIMINATE THE PROBLEM.  ARTICLE III, HOWEVER, IS AN "AWKWARD"
LIMITATION.  IT PREVENTS ALL FEDERAL COURTS FROM ADDRESSING SOME
IMPORTANT QUESTIONS; THERE IS NOTHING SURPRISING IN THE FACT THAT IT
MAY PERMIT ONLY THE LOWER FEDERAL COURTS TO ADDRESS OTHER QUESTIONS. 
ARTICLE III IS NOT A RULE ALWAYS CONSISTENT WITH JUDICIAL ECONOMY.  ITS
OVERRIDING PURPOSE IS TO DEFINE THE BOUNDARIES SEPARATING THE BRANCHES
AND TO KEEP THIS COURT FROM ASSUMING A LEGISLATIVE PERSPECTIVE AND
FUNCTION.  SEE FLAST V. COHEN, 392 U.S. 83, 96 (1968).  THE ULTIMATE
BASIS OF THE COURT'S DECISION MUST BE A CONCLUSION THAT THE ISSUE
PRESENTED IS AN IMPORTANT AND RECURRING ONE WHICH SHOULD BE FINALLY
RESOLVED HERE.  BUT THIS NOTION CANNOT OVERRIDE CONSTITUTIONAL
LIMITATIONS. 

BECAUSE I FIND THAT THE CASE BEFORE THE COURT HAS BECOME MOOT, I
MUST RESPECTFULLY DISSENT. 

/1/  THE COURT CONTENDS THAT ITS RATIONALE IS THE PREVAILING VIEW IN
THE CIRCUITS AND LISTS FIVE CIRCUITS IN SUPPORT AND TWO OPPOSING. 
ANTE, AT 401 - 402, N. 10.  OF THE FIVE DECISIONS CITED IN SUPPORT,
FOUR ARE WITHOUT WEIGHT OR INAPPOSITE IN THE PRESENT CONTEXT.  CONOVER
V. MONTEMURO, 477 F.2D 1073, 1081 - 1082 (CA3 1973), CONTAINS ONLY
DICTUM.  MAKRES V. ASKEW, 500 F.2D 577 (CA5 1974), IS ONLY AN
AFFIRMANCE OF A DISTRICT COURT DECISION WITHOUT DISCUSSION OF
MOOTNESS.  TWO OTHER CASES, MOSS V. LANE CO., INC., 471 F.2D 853 (CA4
1973), AND ROBERTS V. UNION CO., 487 F.2D 387 (CA6 1973), DEAL WITH
CLAIMS OF RACIAL AND SEXUAL DISCRIMINATION, RESPECTIVELY, IN EMPLOYMENT
PRACTICES, UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT.
253, 42 U.S.C. 2000E ET SEQ. IN SUCH CASES, CONGRESS HAS EXPRESSED AN
INTENTION AND PROVIDED THAT ANY PERSON "CLAIMING TO BE AGGRIEVED" COULD
BRING SUIT UNDER TITLE VII TO CHALLENGE DISCRIMINATORY EMPLOYMENT
PRACTICES.  42 U.S.C. 2000E-5; TRAFFICANTE V. METROPOLITAN LIFE
INSURANCE CO., 409 U.S. 205, 209 (1972).  SINCE ANY DISCRIMINATION IN
EMPLOYMENT BASED UPON SEXUAL OR RACIAL CHARACTERISTICS AGGRIEVES AN
EMPLOYEE OR AN APPLICANT FOR EMPLOYMENT HAVING SUCH CHARACTERISTICS BY
STIGMATIZATION AND EXPLICIT OR IMPLICIT APPLICATION OF A BADGE OF
INFERIORITY, CONGRESS GAVE SUCH PERSONS STANDING BY STATUTE TO CONTINUE
AN ATTACK UPON SUCH DISCRIMINATION EVEN THOUGH THEY FAIL TO ESTABLISH
PARTICULAR INJURY TO THEMSELVES IN BEING DENIED EMPLOYMENT UNLAWFULLY. 
CF. TRAFFICANTE, SUPRA.  CONGRESS HAS EXPRESSED NO SIMILAR INTENTION AS
TO THE SUBJECT MATTER OF THE INSTANT LITIGATION, THAT IS, TO ALLOW
SUITS BY "'PRIVATE ATTORNEYS GENERAL IN VINDICATING A POLICY THAT
CONGRESS CONSIDERED TO BE OF THE HIGHEST PRIORITY,'" ID., AT 211, NOR
ARE THE CIRCUMSTANCES PRESENT HERE ANALOGOUS TO A CASE OF RACIAL OR
SEXUAL DISCRIMINATION WHICH INHERENTLY IS CLASS BASED.  HENCE, THESE
CASES PROVIDE NO AUTHORITY FOR THE COURT'S EXPANSIVE CONSTRUCTION OF
ART. III'S CASE-OR-CONTROVERSY REQUIREMENT. 

/2/  SEE 7A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE
1785, PP. 137 - 138 (1972); 3B J. MOORE, FEDERAL PRACTICE 23.50.  P. 23
- 1103 (1974). 

/3/  SEE 7A WRIGHT & MILLER, SUPRA, N. 2, 1793, 1974; 3B MOORE,
SUPRA, N. 2, 23.72 - 23.74. 

/4/  THE COURT APPARENTLY ALSO DOES NOT VIEW CERTIFICATION AS THE
KEY TO ITS HOLDING SINCE IT MENTIONS IN DICTA THAT SOME CLASS ACTIONS
WILL NOT BE MOOT EVEN THOUGH THE NAMED REPRESENTATIVES' CLAIMS BECOME
MOOT PRIOR TO CERTIFICATION.  IF THE DISTRICT COURT DOES NOT HAVE A
REASONABLE AMOUNT OF TIME WITHIN WHICH TO DECIDE THE CERTIFICATION
QUESTION PRIOR TO THE MOOTING OF THE NAMED PARTIES' CONTROVERSIES, THE
COURT SAYS, "(IN SUCH INSTANCES, WHETHER THE CERTIFICATION CAN BE SAID
TO 'RELATE BACK' TO THE FILING OF THE COMPLAINT MAY DEPEND UPON THE
CIRCUMSTANCES OF THE PARTICULAR CASE AND ESPECIALLY THE REALITY OF THE
CLAIM THAT OTHERWISE THE ISSUE WOULD EVADE REVIEW."  ANTE, AT 402 N.
11.  IF CERTIFICATION IS NOT THE FACTOR WHICH SAVES THE CASE FROM
MOOTNESS, IT APPEARS THAT THE COURT IS SATISFIED THAT THE CASE IS A
LIVE CONTROVERSY AS LONG AS AN ISSUE WOULD OTHERWISE NOT BE REVIEWABLE
HERE.  THE COURT DOES NOT SAY WHETHER THE SAME FLEXIBLE STANDARD OF
MOOTNESS APPLIES TO CASES APPEALABLE TO THE COURTS OF APPEALS. 

/5/  THE GENERAL RULE HAS BEEN THAT THE "(QUALITY OF REPRESENTATION
EMBRACES BOTH THE COMPETENCE OF THE LEGAL COUNSEL OF THE
REPRESENTATIVES AND THE STATURE AND INTEREST OF THE NAMED OPARTIES
THEMSELVES."  7 WRIGHT & MILLER, SUPRA, N.2, 1766, PP. 632 - 633
(FOOTNOTES OMITTED).  THE DECISIONS IN THE PAST HAVE RESTED ON SEVERAL
CONSIDERATIONS.  SEE ID., AT 633 - 635. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

THE COURT TODAY DEPARTS SHARPLY FROM THE COURSE WE HAVE FOLLOWED IN
ANALYZING DURATIONAL RESIDENCY REQUIREMENTS SINCE SHAPIRO V. THOMPSON,
394 U.S 618 (1969).  BECAUSE I THINK THE PRINCIPLES SET OUT IN THAT
CASE AND ITS PROGENY COMPEL REVERSAL HERE, I RESPECTFULLY DISSENT. 

AS WE HAVE MADE CLEAR IN SHAPIRO AND SUBSEQUENT CASES, ANY
CLASSIFICATION THAT PENALIZES EXERCISE OF THE CONSTITUTIONAL RIGHT TO
TRAVEL IS INVALID UNLESS IT IS JUSTIFIED BY A COMPELLING GOVERNMENTAL
INTEREST.  AS RECENTLY AS LAST TERM WE HELD THAT THE RIGTH TO TRAVEL
REQUIRES THAT STATES PROVIDE THE SAME VITAL GOVERNMENTAL BENEFITS AND
PRIVILEGES TO RECENT IMMIGRANTS THAT THEY DO TO LONGTIME RESIDENTS. 
MEMORIAL HOSPITAL V. MARICOPA COUNTY, 415 U.S. 250, 161 (1974). 
ALTHOUGH WE RECOGNIZED THAT NOT ALL DURATIONAL RESIDENCY REQUIREMENTS
ARE PENALITIES UPON THE EXERCISE OF THE RIGHT TO TRAVEL INTERSTATE, /1/
WE HELD THAT FREE MEDICAL AID, LIKE VOTING, SEE DUNN V. BLUMSTEIN, 405
U.S. 330 (1972), AND WELFARE ASSISTANCE, SEE SHAPIRO V. THOMPSON,
SUPRA, WAS OF SUCH FUNDAMENTAL IMPORTANCE THAT THE STATE COULD NOT
CONSTITUTIONALLY CONDITION ITS RECEIPT UPON LONG-TERM RESIDENCE.  AFTER
EXAMINING ARIZONA'S JUSTIFICATIONS FOR RESTRICTING THE AVAILABILITY OF
FREE MEDICAL SERVICES, WE CONCLUDED THAT THE STATE HAD FAILED TO SHOW
THAT IN PURSUING LEGITIMATE OBJECTIVES IT HAD CHOSEN MEANS THAT DID NOT
IMPINGE UNNECESSARILY UPON CONSTITUTIONALLY PROTECTED INTERESTS. 

THE COURT'S FAILURE TO ADDRESS THE INSTANT CASE IN THESE TERMS
SUGGESTS A NEW DISTATE FOR THE MODE OF ANALYSIS WE HAVE APPLIED TO THIS
CORNER OF EQUAL PROTECTION LAW.  IN ITS STEAD, THE COURT HAS EMPLOYED
WHAT APPEARS TO BE AN AD HOC BALANCING TEST, UNDER WHICH THE STATE'S
PUTATIVE INTEREST IN ENSURING THAT ITS DIVORCE PLAINTIFFS ESTABLISH
SOME ROOTS IN IOWA IS SAID TO JUSTIFY THE ONE-YEAR RESIDENCY
REQUIREMENT.  I AM CONCERNED NOT ONLY ABOUT THE DISPOSITION OF THIS
CASE, BUT ALSO ABLUT THE IMPLICATIONS OF THE MAJORITY'S ANALYSIS FOR
OTHER DIVORCE STATUTES AND FOR DURATIONAL RESIDENCY REQUIREMENT CASES
IN GENERAL. 

        I 

THE COURT OMITS ALTOGETHER WHAT SHOULD BE THE FIRST INQUIRY: WHETHER
THE RIGHT TO OBTAIN A DIVORCE IS OF SUFFICIENT IMPORTANCE THAT ITS
DENIAL TO RECENT IMMIGRANTS CONSTITUTES A PENALTY ON INTERSTATE
TRAVEL.  IN MY VIEW, IT CLEARLY MEETS THAT STANDARD.  THE PREVIOUS
DECISIONS OF THIS COURT MAKE IT PLAIN THAT THE RIGHT OF MARITAL
ASSOCIATION IS ONE OF THE MOST BASIC RIGHTS CONFERRED ON THE INDIVIDUAL
BY THE STATE.  THE INTERESTS ASSOCIATED WITH MARRIAGE AND DIVORCE HAVE
REPEATEDLY BEEN ACCORDED PARTICULAR DEFERENCE, AND THE RIGHT TO MARRY
HAS BEEN TERMED "ONE OF THE VITAL PERSONAL RIGHTS ESSENTIAL TO THE
ORDERLY PURSUIT OF HAPPINESS BY FREE MEN."  LOVING V. VIRGINIA, 388
U.S. 1, 12 (1967).  IN BODDIE V. CONNECTICUT, 401 U.S. 371 (1971), WE
RECOGNIZED THAT THE RIGHT TO SEEK DISSOLUTION OF THE MARITAL
RELATIONSHIP WAS CLOSELY RELATED TO THE RIGHT TO MARRY, AS BOTH INVOLVE
THE VOLUNTARY ADJUSTMENT OF THE SAME FUNDAMENTAL HUMAN RELATIONSHIP. 
ID., AT 383.  WITHOUT FURTHER LAOBRING THE POINT, I THINK IT IS CLEAR
BEYOND CAVIL THAT THE RIGHT TO SEEK DISSOLUTION OF THE MARITAL
RELATIONSHIP IS OF SUCH FUNDAMENTAL IMPORTANCE THAT DENIAL OF THIS
RIGHT TO THE CLASS OF RECENT INTERSTATE TRAVELERS PENALIZES INTERSTATE
TRAVEL WITHIN THE MEANING OF SHAPIRO, DUNN, AND MARICOPA COUNTY. 

     II 

HAVING DETERMINED THAT THE INTEREST IN OBTAINING A DIVORCE IS OF
SUBSTANTIAL SOCIAL IMPORTANCE, I WOULD SCRUTINIZE IOWA'S DURATIONAL
RESIDENCY REQUIREMENT TO DETERMINE WHETHER IT CONSTITUTES A REASONABLE
MEANS OF FURTHERING IMPORTANT INTERESTS ASSERTED BY THE STATE.  THE
COURT, HOWEVER, HAS NOT ONLY DECLINED TO APPLY THE "COMPELLING
INTEREST" TEST TO THIS CASE, IT HAS CONJURED UP POSSIBLE JUSTIFICATIONS
FOR THE STATE'S RESTRICTION IN A MANNER MUCH MORE AKIN TO THE LENIENT
STANDARD WE HAVE IN THE PAST APPLIED IN ANALYZING EQUAL PROTECTION
CHALLENGES TO BUSINESS REGULATIONS.  SEE MCGOWAN V. MARYLAND, 366 U.S.
420, 425 - 428 (1961); KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS, 330
U.S. 552, 557 (1947); BUT SEE JOHNSON V. ROBISION, 415 U.S. 361, 376
(1974).  I CONTINUE TO BE OF THE VIEW THAT THE "RATIONAL BASIS" TEST
HAS NO PLACE IN EQUAL PROTECTION ANALYSIS WHEN IMPORTANT INDIVIDUAL
INTERESTS WITH CONSTITUTIONAL IMPLICATIONS ARE AT STAKE, SEE ANTONIO
SCHOOL DISTRICT V. RODRIGUES, 411 U.S. 1, 109 (1973) (MARSHALL, J.,
DISSENTING); DANDRIDGE V. WILLIAMS, 397 U.S. 471, 520 - 522 (1970)
(MARSHALL, J., DISSENTING).  BUT WHATEVER THE ULTIMATE RESTING POINT OF
THE CURRENT READJUSTMENTS IN EQUAL PROTECTION ANALYSIS, THE COURT HAS
CLEARLY DIRECTED THAT THE PROPER STANDARD TO APPLY TO CASES IN WHICH
STATES STATUTES HAVE PENALIZED THE EXERCISE OF THE RIGHT TO INTERSTATE
TRAVEL IS THE "COMPELLING INTEREST" TEST.  SHAPIRO V. THOMPSON, 394
U.S., AT 634, 638; OREGON V. MITCHELL, 400 U.S. 112, 238 (1970)
(OPINION OF BRENNAN, WHITE, AND MARSHQALL, JJ.); DUNN V. BLUMSTEIN, 405
U.S., AT 342 - 343; MEMORIAL HOSPITAL V. MARICOPA COUNTY, 415 U.S., AT
262 - 263. 

THE COURT PROPSES THREE DEFENSES FOR THE IOWA STATUTE:  FIRST, THE
RESIDENCY REQUIREMENT MERELY DELAYS RECEIPT OF THE BENEFIT IN QUESTION
- IT DOES NOT DEPRIVE THE APPLICANT OF THE BENEFIT ALTOGETHER; SECOND,
SINCE SIGNIFICANT SOCIAL CONSEQUENCES MAY FOLLOW FROM THE CONFERRAL OF
A DIVORCE, THE STATE MAY LEGITIMATELY REGULATE THE DIVORCE PROCESS; AND
THIRD, THE STATE HAS INTERESTS BOTH IN PROTECTING ITSELF FROM USE AS A
"DIVORCE MILL" AND IN PROTECTING ITS JUDGMENTS FROM POSSIBLE COLLATERAL
ATTACK IN OTHER STATES.  IN MY VIEW, THE FIRST TWO DEFENSES PROVIDE NO
SIGNIFICANT SUPPORT FOR THE STATUTE IN QUESTION HERE.  ONLY THE THIRD
HAS ANY REAL FORCE.              A 

WITH THE FIRST JUSTIFICATION, THE COURT SEEKS TO DISTINGUISH THE
SHAPIRO, DUNN, AND MARICOPA COUNTY CASES.  YET THE DISTINCTION THE
COURT DRAWS SEEMS TO ME SPECIOUS.  IOWA'S RESIDENCY REQUIREMENT, THE
COURT SAYS, MERELY FORESTALLS ACCESS TO THE COURTS; APPLICANTS SEEKING
WELFARE PAYMENTS, MEDICAL AID, AND THE RIGHT TO VOTE, ON THE OTHER
HAND, SUFFER UNRECOVERABLE LOSSES THROUGHOUT THE WAITING PERIOD.  THIS
ANALYSIS, HOWEVER, IGNORES THE SEVERITY OF THE DEPRIVATION SUFFERED BY
THE DIVORCE PETITIONER WHO IS FORCED TO WAIT A YEAR FOR RELIEF.  SEE
STANLEY V. ILLINOIS, 405 U.S. 645, 647 (1972).  THE INJURY ACCOMPANYING
THAT DELAY IS NOT DIRECTLY MEASURABLE IN MONEY TERMS LIKE THE LOSS OF
WELFARE BENEFITS, BUT IT CANNOT REASONABLY BE ARGUED THAT WHEN THE YEAR
HAS ELAPSED, THE PETITIONER IS MADE WHOLE.  THE YEAR'S WAIT PREVENTS
REMARRIAGE AND LOCKS BOTH PARTNERS INTO WHAT MAY BE AN INTOLERABLE,
DESTRUCTIVE RELATIONSHIP.  EVEN APPLYING THE COURT'S ARGUMENT ON ITS
OWN TERMS, I FAIL TO SEE HOW THE MARICOPA COUNTY CASE CAN BE
DISTINGUISHED.  A POTENTIAL PATIENT MAY WELL NEED TREATMENT FOR A
SINGLE AILMENT.  UNDER ARIZONA STATUTES HE WOULD HAVE TO WAIT A YEAR
BEFORE HE COULD BE TREATED.  YET THE MAJORITY'S ANALYSIS WOULD SUGGEST
THAT MR. EVARO'S CLAIM FOR NONEMERGENCY MEDICAL AID IS NOT COGNIZABLE
BECAUSE HE WOULD "EVENTUALLY QUALIFY FOR THE SAME SORT OF (SERVICE),"
ANTE, AT 406.  THE COURT CANNOT MEAN THAT MRS. SOSNA HAS NOT SUFFERED
ANY INJURY BY BEING FORECLOSED FROM SEEKING A DIVORCE IN IOWA FOR A
YEAR.  IT MUST INSTEAD MEAN THAT IT DOES NOT REGARD THAT DEPRIVATION AS
BEING VERY SEVERE.  /2/

  B 

I FIND THE MAJORITY'S SECOND ARGUMENT NO MORE PERSUASIVE.  THE COURT
FORGOES RELIANCE ON THE USUAL JUSTIFICATIONS FOR DURATIONAL RESIDENCY
REQUIREMENTS--BUDGETARY CONSIDERATIONS AND ADMINISTRATIVE CONCENIENCE,
SEE SHAPIRO, 394 U.S., AT 627 - 638; MARICOPA COUNTY, 415 U.S., AT 262
269.  INDEED, IT WOULD BE HARD TO MAKE A PERSUASIVE ARGUMENT THAT
EITHER OF THESE INTERESTS IS SIGNIFICANTLY IMPLICATED IN THIS CASE.  IN
THEIR PLACE, THE MAJORITY INVOKES A MORE AMORPHOUS JUSTIFICATION--THE
MAGNITUDE OF THE INTERESTS AFFECTED AND RESOLVED BY A DIVORCE
PROCEEDING.  CERTAINLY THE STAKES IN A DIVORCE ARE WEIGHTY BOTH FOR THE
INDIVIDUALS DIRECTLY INVOLVED IN THE ADJUDICATION AND FOR OTHERS
IMMEDIATELY AFFECTED BY IT.  THE CRITICAL IMPORTANCE OF THE DIVORCE
PROCESS, HOWEVER, WEAKENS THE ARGUMENT FOR A LONG RESIDENCY REQUIREMENT
RATHER THAN STRENGTHENING IT.  THE IMPACT OF THE DIVORCE DECREE ONLY
UNDERSCORES THE NECESSITY THAT THE STATE'S REGULATION BE EVENHANDED. 
/3/ 

IT IS NOT ENOUGH TO RECITE THE STATE'S TRADITIONALLY EXCLUSIVE
RESPONSIBILITY FOR REGULATING FAIMLY LAW MATTERS; SOME TANGIBLE
INTERFERENCE WITH THE STATE'S REGULATORY SCHEME MUST BE SHOWN.  YET IN
THIS CASE, I FAIL TO SEE HOW ANY LEGITIMATE OBJECTIVE OF IOWA'S DIVORCE
REGULATIONS WOULD BE FRUSTRATED BY GRANTING EQUAL ACCESS TO NEW STATE
RESIDENTS.  /4/  TO DRAW ON AN ANALOGY, THE STATES HAVE GREAT INTERESTS
IN THE LOCAL VOTING PROCESS AND WIDE LATITUDE IN REGULATING THAT
PROCESS.  YET ONE REGULATION THAT THE STATES MAY NOT IMPOSE IS AN
UNDULY LONG RESIDENCY REQUIREMENT.  DUNN V. BLUMSTEIN, 405 U.S. 330
(1972).  TO REMARK, AS THE COURT DOES, THAT BECAUSE OF THE CONSEQUENCES
RIDING ON A DIVORCE DECREE "IOWA MAY INSIST THAT ONE SEEKING TO
INITIATE SUCH A PROCEEDING HAVE THE MODICUM OF ATTACHMENT TO THE STATE
REQUIRED HERE"  IS NOT TO MAKE AN ARGUMENT, BUT MERELY TO STATE THE
RESULT. 

     C 

THE COURT'S THIRD JUSTIFICATION SEEMS TO ME THE ONLY ONE THAT
WARRANTS CLOSE CONSIDERATION.  IOWA HAS A LEGITIMATE INTEREST IN
PROTECTING TSELF AGAINST INVASION BY THOSE SEEKING QUICK DIVORCES IN A
FORUM WITH RELATIVELY LAX DIVORCE LAWS, AND IT MAY HAVE SOME INTEREST
IN AVOIDING COLLATERAL ATTACKS ON ITS DECREE IN OTHER STATES.  /5/
THESE INTERESTS, HOWEVER, WOULD ADEQUATELY BE PROTECTED BY A SIMPLE
REQUIREMENT OF DOMICILE--PHYSICAL PRESENCE PLUS INTENT TO REMAIN--WHICH
WOULD REMOVE THE RIGID ONE-YEAR BARRIER WHILE PERMITTING THE STATE TO
RESTRICT THE AVAILABILITY OF ITS DIVORCE PROCESS TO CITIZENS WHO ARE
GENUINELY ITS OWN.  /6/ 

THE MAJORITY NOTES THAT IN WILLIAMS V. NORTH CAROLINA, 325 U.S. 226
(1945), THE COURT HELD THAT FOR EX PARTE DIVORCES ONE STATE'S FINDING
OF DOMICILE COULD, UNDER LIMITED CIRCUMSTANCES, BE CHALLENGED IN THE
COURTS OF ANOTHER.  FROM THIS, THE MAJORITY CONCLUDES THAT SINCE IOWA'S
FINDINGS OF DOMICILE MIGHT BE SUBJECT TO COLLATERAL ATTACK ELSEWHERE,
IT SHOULD BE PERMITTED TO CUSHION ITS FINDINGS WITH A ONE-YEAR
RESIDENCY REQUIREMENT. 

FOR SEVERAL REASONS, THE YEAR'S WAITING PERIOD SEEMS TO ME NEITHER
NECESSARY NOR MUCH OF A CUSHION.  FIRST, THE WILLIAMS OPINION WAS NOT
AIMED AT STATES SEEKING TO AVOID BECOMING DIVORCE MILLS.  QUITE THE
OPPOSITE, IT WAS RATHER PLAINLY DIRECTED AT STATES THAT HAD CULTIVATED
A "QUICKIE DIVORCE" REPUTATION BY PLAYING FAST AND LOOSE WITH FINDINGS
OF DOMICILE.  SEE 325 U.S., AT 236 - 237; ID., AT 241 (MURPHY, J.,
CONCURRING).  IF IOWA WISHES TO AVOID BECOMING A HAVEN FOR DIVORCE
SEEKERS, IT IS INCONCEIVABLE THAT ITS GOOD-FAITH DETERMINATIONS OF
DOMICILE WOULD NOT MEET THE RATHER LENIENT FULL FAITH AND CREDIT
STANDARDS SET OUT IN WILLIAMS. 

A SECOND PROBLEM WITH THE MAJORITY'S ARGUMENT ON THIS SCORE IS THAT
WILLIAMS APPLIES ONLY TO EX PARTE DIVORCES.  THIS COURT HAS HELD THAT
IF BOTH SPOUSES WERE BEFORE THE DIVORCING COURT, A FOREIGN STATE CANNOT
RECOGNIZE A COLLATERAL CHALLENGE THAT WOULD NOT BE PERMISSIBLE IN THE
DIVORCING STATE.  SHERRER, 334 U.S. 343 (1948); COE V. COE, 334 1.S.
378 (1948); JOHNSON V. MUELBERGER, 340 U.S. 581 (1951); COOK V. COOK,
342 U.S. 126 (1951).  THEREFORE, THE IOWA STATUTE SWEEPS TOO BROADLY
EVEN AS A DEFENSE TO POSSIBLE COLLATERAL ATTACKS, SINCE IT IMPOSES A
ONE-YEAR REQUIREMENT WHENEVER THE RESPONDENT DOES NOT RESIDE IN THE
STATE, REGARDLESS OF WHETHER THE PROCEEDING IS EX PARTE.  /7/ 

THIRD, EVEN A ONE-YEAR PERIOD DOES NOT PROVIDE COMPLETE PROTECTION
AGAINST COLLATERAL ATTACK.  IT MERELY MAKES IT SOMEWHAT LESS LIKELY
THAT A SECOND STATE WILL BE ABLE TO FIND "COGENT EVIDENCE" THAT IOWA'S
DETERMINATION OF DOMICILE WAS INCORRECT.  BUT IF THE IOWA COURT HAS
ERRONEOUSLY DETERMINED THE QUESTION OF DOMICILE, THE YEAR'S RESIDENCE
WILL DO NOTHING TO PRECLUDE COLLATERAL ATTACK UNDER WILLIAMS. 

FINALLY, IN ONE SENSE THE YEAR'S RESIDENCY REQUIREMENT MAY
TECHNICALLY INCREASE RATHER THAN REDUCE THE EXPOSURE OF IOWA'S DECREES
TO COLLATERAL ATTACK.  IOWA APPEARS TO BE AMONG THE STATES THAT HAVE
INTERPTETED THEIR DIVORCE RESIDENCY REQUIREMENTS AS BEING OF
JURISDICTIONAL IMPORT.  /8/  SINCE A STATE'S DIVORCE DECREE IS SUBJECT
TO COLLATERAL CHALLENGE IN A FOREIGN FORUM FOR ANY JURISDICTIONAL FLAW
THAT WOULD VOID IT IN THE STATE'S OWN COURTS, NEW YORK EX RE. HALVEY V.
HALVEY, 330 U.S. 610 (1947), THE RESIDENCY REQUIREMENT EXPOSES IOWA
DIVORCE PROCEEDINGS TO ATTACK BOTH FOR FAILURE TO PROVE DOMICILE AND
FOR FAILURE TO PROVE ONE YEAR'S RESIDENCE.  IF NOTHING ELSE, THIS CASTS
DOUBT ON THE MAJORITY'S SPECULATION THAT IOWA'S RESIDENCY REQUIREMENT
MAY HAVE BEEN INTENDED AS A STATUTORY SHIELD FOR ITS DIVORCE DECREES. 
IN SUM, CONCERNS ABOUT THE NEED FOR A LONG RESIDENCY REQUIREMENT TO
DEFRAY COLLATERAL ATTACKS ON STATE JUDGMENTS SEEM MORE FANCIFUL THAN
REAL.  IF, AS THE MAJORITY ASSUMES, IOWA IS INTERESTED IN ASSURING
ITSELF THAT ITS DIVORCE PETITIONERS ARE LEGITIMATELY IOWA CITIZENS,
REQUIRING PETITIONERS TO PROVIDE CONVINCING EVIDENCE OF BONA FIDE
DOMICILE SHOULD BE MORE THAN ADEQUATE TO THE TASK.  /9/

        III 

I CONCLUDE THAT THE COURSE IOWA HAS CHOSEN IN RESTRICTING ACCESS TO
ITS DIVORCE COURTS UNDULY INTERFERES WITH THE RIGHT TO "MIGRATE,
RESETTLE, FIND A NEW JOB, AND START A NEW LIFE."  SHAPIRO V. THOMPSON,
394 U.S., AT 629.  I WOULD REVERSE THE JUDGMENT OF THE DISTRICT COURT
AND REMAND FOR ENTRY OF AN ORDER GRANTING RELIEF IF THE COURT FINDS
THAT THERE IS A CONTINUING CONTROVERSY IN THIS CASE.  SEE STEFFEL V.
THOMPSON, 415 U.S. 452 (1974); JOHNSON V. NEW YORK STATE EDUCATION
DEPT., 409 U.S. 75, 79 N. 7 (1972) (MARSHALL, J., CONCURRING). 

/1/  MEMORIAL HOSPITAL V. MARICOPA COUNTY, 415 U.S., AT 256 - 259;
SEE ALSO SHAPIRO V. THOMPSON, 394 U.S., AT 638 N.21. 

/2/  THE MAJORITY ALSO RELIES ON ITS "MERE DELAY" DISTINCTION TO
DISPOSE OF BODDIE V. CONNECTICUT, 401 U.S. 371 (1971), SEE ANTE, AT
410.  YET EVEN THOUGH THE MAJORITY IN BODDIE RELIED ON DUE PROCESS
RATHER THAN EQUAL PROTECTION, I AM FULLY CONVINCED THAT IF THE
CONNECTICUT STATUTE IN QUESTION IN THAT CASE HAD REQUIRED INDIGENTS TO
WAIT A YEAR FOR A DIVORCE, THE STATUTE WOULD STILL HAVE BEEN
CONSTITUTIONALLY INFIRM, SEE 401 U.S., AT 383 - 386 (DOUGLAS, J.,
CONCURRING IN RESULT), A POINT THE COURT IMPLICITLY REJECTS TODAY. 

/3/  THE MAJORITY IDENTIFIES MARITAL STATUS, PROPERTY RIGHTS, AND
CUSTODY AND SUPPORT ARRANGEMENTS AS THE IMPORTANT CONCERNS COMMONLY
RESOLVED BY DIVORCE PROCEEDINGS.  BUT BY DECLINING TO EXERCISE DIVORCE
JURISDICTION OVER ITS NEW CITIZENS, IOWA DOES NOT AVOID AFFECTING THESE
WEIGHTY SOCIAL CONCERNS; INSTEAD, IT FREEZES THEM IN AN UNSATISFACTORY
STATE THAT IT WOULD NOT REQUIRE ITS LONG-TIME RESIDENTS TO ENDURE. 

/4/  A DURATIONAL REQUIREMENT SUCH AS IOWA'S 90-DAY CONCILIATION
PERIOD WOULD NOT, OF COURSE, BE SUBJECT TO AN EQUAL PROTECTION
CHALLENGE, AS IT IS REQUIRED UNIFORMLY OF ALL DIVORCE PETITIONERS. 

/5/  APPELLEES DO NOT RELY ON THESE FACTORS TO SUPPORT THE IOWA
STATUTE.  IN THEIR BRIEF APPELLEES ARGUE THAT THE LEGISLATURE'S
DETERMINATION TO IMPOSE A ONE-YEAR RESIDENCY REQUIREMENT WAS REASONABLE
"IN THE LIGHT OF THE INTEREST OF THE STATE OF IOWA IN A DISSOLUTION
PROCEEDING."  BRIEF FOR APPELLEES 8.  THE FULL FAITH AND CREDIT
ARGUMENT IS MENTIONED ONLY IN THE MIDDLE OF A LONG QUOTATION FROM
ANOTHER COURT'S OPINION, ID., AT 9.  THIS IS HARDLY SUFFICIENT TO MEET
THE REQUIREMENT OF A "CLEAR SHOWING THAT THE BURDEN IMPOSED IS
NECESSARY TO PROTECT A COMPELLING AND SUBSTANTIAL GOVERNMENTAL
INTEREST."  OREGON V. MITCHELL, 400 U.S. 112, 238 (1970) (OPINION OF
BRENNAN, WHITE, AND MARSHALL, JJ.); SHERBERT V. VERNER, 374 U.S. 398,
406 - 409 (1963). 

/6/  THE AVAILABILITY OF A LESS RESTRICTIVE ALTERNATIVE SUCH AS A
DOMICILE REQUIREMENT WEIGHS HEAVILY IN TESTING CHALLENGED STATE
REGULATION AGAINST THE "COMPELLING INTEREST" STANDARD.  SEE SHAPIRO V.
THOMPSON, 394 U.S., AT 368; DUNN V. BLUMSTEIN, 405 U.S. 330, 342, 350 -
352 (1972); MEMORIAL HOSPITAL V. MARICOPA COUNTY, 415 U.S., AT 267;
SHELTON V. TUCKER, 364 U.S. 479, 488 (1960).  SINCE THE IOWA COURTS
HAVE IN EFFECT INTERPRETED THE RESIDENCE STATUTE TO REQUIRE PROOF OF
DOMICILE AS WELL AS ONE YEAR'S RESIDENCE, SEE KORSRUD V. KORSRUD, 242
IOWA 178, 45 N.W. 2D 848 (1951); JULSON V. JULSON, 255 IOWA 301, 122
N.W. 2D 329 (1963), A SHIFT TO A "PURE" DOMICILE TEST WOULD IMPOSE NO
NEW BURDEN ON THE STATE'S FACTFINDING PROCESS. 

/7/  THIS PROBLEM COULD BE CURED IN LARGE PART IF THE STATE WAIVED
ITS YEAR'S RESIDENCY REQUIREMENT WHENEVER THE RESPONDENT AGREED TO
CONSENT TO THE COURT'S JURISDICTION. 

/8/  SEE HINDS V. HINDS, 1 IOWA 36 (1855); WILLIAMSON V. WILLIAMSON,
179 IOWA 489, 495, 161 N.W. 482, 485 (1917); KORSRUD V. KORSRUD, 242
IOWA 178, 45 N.W. 2D 848 (1951); SCHAEFER V. SCHAEFER, 245 IOWA 1343,
1350, 66 N.W. 2D 428, 433 (1954); CF. WHITE V. WHITE, 138 CONN. 1, 81
A.2D 450 (1951); WYMAN V. WYMAN, 212 N.W. 2D 368 (MINN. 1973); CAMP V.
CAMP, 21 MISC. 2D 908, 189 N.Y.S.2D 561 (1959) (CONSTRUING FLORIDA
LAW).  WHILE THE WILLIAMS CASE ESTABLISHES THAT COLLATERAL ATTACK CAN
ALWAYS BE MOUNTED AGAINST THE DIVORCING STATE'S FINDING OF DOMICILE,
OTHER STATES HAVE PROVIDED THAT FAILURE TO MEET THE DURATIONAL
RESIDENCY REQUIREMENT IS NOT JURISDICTIONAL AND THUS DOES NOT PROVIDE
AN INDEPENDENT BASIS FOR COLLATERAL ATTACK, SEE, E.G., SCHREINER V.
SCHREINER, 502 S. W. 2D 840 (TEX. CT. CIV. APP. 1973); HAMMOND V.
HAMMOND, 45 WASH. 2D 855, 278 P. 2D 387 (1954) (CONSTRUING IDAHO LAW). 

/9/  THE MAJORITY ARGUES THAT SINCE MOST STATES REQUIRE A YEAR'S
RESIDENCE FOR DIVORCE, IOWA GAINS REFUGE FROM THE RISK OF COLLATERAL
ATTACK IN THE UNDERSTANDING SOLICITUDE OF STATES WITH SIMILAR LAWS.  OF
COURSE, ABSENT UNUSUAL CIRCUMSTANCES, A JUDGMENT BY THIS COURT STRIKING
DOWN THE IOWA STATUTE WOULD SIMILARLY AFFECT THE OTHER STATES WITH ONE
AND TWO-YEAR RESIDENCY REQUIREMENTS.  FOR THE SAME REASON, THE RISK OF
SUBJECTING IOWA TO AN INVASION OF DIVORCE SEEKERS SEEMS MINIMAL.  IF
LONG RESIDENCY REQUIREMENTS ARE HELD UNCONSTITUTIONAL, IOWA WILL NOT
STAND CONSPICUOUSLY ALONE WITHOUT A RESIDENCY REQUIREMENT "DEFENSE." 
MOREOVER, ITS 90-DAY CONCILIATION PERIOD, REQUIRED OF ALL DIVORCE
SEEKERS WHO ARE LOOKING FOR THE QUICKEST POSSIBLE ADJUDICATION. 

JAMES H. REYNOLDS ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WAS PAUL E. KEMPTER. 

ELIZABETH A. NOLAN, ASSISTANT ATTORNEY GENERAL OF IOWA, ARGUED THE
CAUSE FOR APPELLEES.  WITH HER ON THE BRIEF WERE RICHARD C. TURNER,
ATTORNEY GENERAL, AND GEORGE W. MURRAY, SPECIAL ASSISTANT ATTORNEY
GENERAL.  HC #394
..END :



















ITT V. ELECTRICAL WORKERS, 419 U.S. 428 


       INTERNATIONAL TELEPHONE & TELEGRAPH CORP., COMMUNICATIONS

           EQUIPMENT & SYSTEMS DIVISION V. LOCAL 134, INTERNATIONAL

           BROTHERHOOD OF ELECTRICAL WORKERS, AFL--CIO, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT DECIDED JANUARY 14, 1975; 486 F.2D 863,

           REVERSED AND REMANDED. 


    PETITIONER EMPLOYER FILED AN UNFAIR LABOR PRACTICE CHARGE

  AGAINST RESPONDENT UNION UNDER 8(B)(4)(D) OF THE NATIONAL LABOR

  RELATIONS ACT (NLRA), WHICH MAKES IT AN UNFAIR LABOR PRACTICE FOR

  A LABOR ORGANIZATION TO INDUCE EMPLOYEES TO STRIKE TO FORCE AN

  EMPLOYER TO ASSIGN PARTICULAR WORK TO EMPLOYEES IN A PARTICULAR

  LABOR ORGANIZATION.  SECTION 10 (K) OF THE NLRA PROVIDES THAT

  WHENEVER A 8(B)(4)(D) UNFAIR LABOR PRACTICE CHARGE IS FILED, THE

  NATIONAL LABOR RELATIONS BOARD SHALL HEAR AND DETERMINE THE

DISPUTE OUT OF WHICH SUCH UNFAIR LABOR PRACTICE AROSE, UNLESS

  WITHIN 10 DAYS AFTER NOTICE THAT SUCH CHARGE HAS BEEN FILED THE

  PARTIES SUBMIT EVIDENCE THAT THEY HAVE ADJUSTED THE DISPUTE, IN

  WHICH CASE OR UPON COMPLIANCE WITH THE BOARD'S DECISION, SUCH

  CHARGE SHALL BE DISMISSED.  PURSUANT TO 10 (K) A HEARING WAS HELD

  BEFORE A HEARING OFFICER, AND SUBSEQUENTLY THE BOARD RENDERED A

  DECISION ADVERSE TO RESPONDENT, WHICH THEN INDICATED IT WOULD NOT

  COMPLY THEREWITH.  THE BOARD'S COUNSEL THEREAFTER ISSUED A

  COMPLAINT ON THE UNFAIR LABOR PRACTICE CHARGE, AND AT A TRIAL

EXAMINER'S HEARING, AT WHICH THE GENERAL COUNSEL WAS REPRESENTED

  BY THE SAME ATTORNEY WHO HAD BEEN THE HEARING OFFICER IN THE 10

  (K) PROCEEDING, THE TRIAL EXAMINER CONCLUDED THAT RESPONDENT HAD

  VIOLATED 8 (B)(4)(D), AND THE BOARD ISSUED A CEASE-AND-DESIST

  ORDER.  THE COURT OF APPEALS, ON RESPONDENT'S PETITION TO SET

  ASIDE THE ORDER, AGREED THAT RESPONDENT HAD VIOLATED 8(B)(4)(D),

  BUT REFUSED TO ENFORCE THE ORDER, ON THE GROUND THAT BECAUSE THE

  10 (K) HEARING OFFICER HAD PARTICIPATED IN BOTH THE 10 (K) AND

THE 8(B)(4)(D) PROCEEDINGS, THE BOARD HAD NOT COMPLIED WITH THE

  ADMINISTRATIVE PROCEDURE ACT (APA), 5 U.S.C. 554 (A), WHICH

  PROHIBITS COMMINGLING PROSECUTORIAL AND ADJUDICATORY FUNCTIONS IN

  AGENCY PROCEEDINGS, AND GENERALLY APPLIES TO "EVERY CASE OF

  ADJUDICATION REQUIRED BY STATUTE TO BE DETERMINED ON THE RECORD

  AFTER OPPORTUNITY FOR AN AGENCY HEARING," 5 U.S.C. 551 (7)

  DEFINING "ADJUDICATION" AS "AGENCY PROCESS FOR THE FORMULATION OF

  AN ORDER," AND "ORDER" AS "THE WHOLE OR A PART OF A FINAL

  DISPOSITION . . . OF AN AGENCY IN A MATTER OTHER THAN RULE

  MAKING."  551 (6).  HELD: THE QAPA, 5 U.S.C. 554, DOES NOT GOVERN

PROCEEDINGS CONDUCTED UNDER 10 (K) OF THE NLRA.  PP. 441 - 448. 

     (A) THE 10 (K) DETERMINATION IS NOT ITSELF A "FINAL

  DISPOSITION"  WITHIN THE MEANING OF "3RDER" AND "ADJUDICATION" IN

  THE APA.  WHEN CONGRESS DEFINED "3RDER" IN TERMS OF A "FINAL

  DISPOSITION," IT REQUIRED THAT "FINAL DISPOSITION" TO HAVE SOME

  DETERMINATE CONSEQUENCES FOR THE PARTY TO THE PROCEEDING, AND

  HERE THE BOARD DOES NOT ORDER ANYBODY TO DO ANYTHING AT THE

  CONCLUSION OF THE 10 (K) PROCEEDING.  PP. 441 - 444. 

     (B) NOR IS SUCH DETERMINATION "AGENCY PROCESS FOR THE

  FORMULATION OF AN ORDER" WITHIN THE MEANING OF 5 U.S.C. 551 (M). 

  ALTHOUGH IMPORTANT PRACTICAL CONSEQUENCES IN THE 8 (B)(4)(D)

  PROCEEDING RESULT FROM THE BOARD'S DETERMINATION IN THE 10(K)

  PROCEEDING, THEY DO NOT ALONE MAKE THE 10(K) PROCEEDING RELATED

  TO THE 8(B)(4)(D) PROCEEDING IN A MANNER THAT WOULD MAKE THE

  FORMER "AGENCT PROCESS" FOR THE FORMULATION OF THE ORDER OF THE

  LATTER.  THE 10 (K) PROCEEDING IS UNLIKE THE TYPICAL HEARING

  BEFORE AN ADMINISTRATIVE LAW JUDGE WHICH IS THEN SUBJECT TO

  CONSIDERATION BY THE AGENCY.  THE ISSUES IN A 10(K) PROCEEDING

  ARE SIMILAR TO BUT NOT IDENTICAL WITH THE FOCUS OF THE 8(B)(4)(D)

  PROCEEDING.  THE STANDARD OF PROOF IS DIFFERENT, AND THE INQUIRY

  IN A 8(B)(4)(D) PROCEEDING IS WHETHER THE UNION ENGAGED IN

  FORBIDDEN CONDUCT WITH A FORBIDDEN OBJECTIVE.  THE PROCEEDINGS

ARE SEPARATE, AND THE AGENCY MAKES THE DETERMINATION IN EACH OF

  THEM.  PP. 444 - 448. 

     REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

IN 1947 CONGRESS RESPONDED TO THE LABOR UNREST CAUSED BY
JURISDICTIONAL DISPUTES BY ADDING 8(B)(4)(D) TO THE NATIONAL LABOR
RELATIONS ACT, WHICH MADE IT AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION TO INDUCE THE EMPLOYEES OF ANY EMPLOYER TO STRIKE IN THE
HOPES OF FORCING AN EMPLOYER TO ASSIGN PARTICULAR WORK TO EMPLOYEES IN
A PARTICULAR LABOR ORGANIZATION.  /1/  IN THE BELIEF THAT RESOLUTION OF
JURISDICTIONAL DISPUTES WAS MORE IMPORTANT TO INDUSTRIAL PEACE THAN THE
IMPOSITION OF UNFAIR LABOR PRACTICE SANCTIONS, NLRB V. RADIO ENGINEERS,
364 U.S. 573, 576 - 577 (1961) (HEREINAFTER CBS), CONGRESS AT THE SAME
TIME ENACTED 10 (K), /2/  29 U.S.C. 160 (K), TO INDUCE UNIONS TO SETTLE
THEIR DIFFERENCES WITHOUT AWAITING UNFAIR LABOR PRACTICE PROCEEDINGS
AND ENFORCEMENT OF BOARD ORDERS BY COURTS OF APPEALS. 

ONE YEAR EARLIER CONGRESS HAD RESPONDED TO THE MANY EXPRESSED
CONCERNS FOR FAIRNESS AND REGULARITY IN THE ADMINISTRATIVE PROCESS
SUMMARIZED IN WONG YANG SUNG V. MCGRATH, 339 U.S. 33, 36 - 41 (1950),
BY ENACTING THE ADMINISTRATIVE PROCEDURE ACT (ACT).  /3/  SECTION 5 OF
THAT ACT, NOW 5 U.S.C. 554, ESTABLISHES REQUIREMENTS GOVERNING CERTAIN
AGENCY PROCEEDINGS THAT COME WITHIN THE ACT'S DEFINITION OF
"ADJUDICATION."  WE GRANTED CERTIORARI TO THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT IN THIS CASE, 416 U.S. 981 (1974), TO REVIEW ITS
CONCLUSION THAT 5 U.S.C. 554 APPLIED TO A 10 (K) PROCEEDING CONDUCTED
BY THE BOARD, 486 F.2D 863 (1973).  ANOTHER COURT OF APPEALS HAD
DECIDED A SHORT TIME EARLIER THAT SUCH A BOARD PROCEEDING WAS NOT
SUBJECT TO 554, BRICKLAYERS V. NLRB, 155 U.S. APP. D.C. 47, 475 F.2D
1316 (1973). 

THE CASE NOW BEFORE US AROSE OUT OF A JURISDICTIONAL DISPUTE BETWEEN
RESPONDENT LOCAL 134 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS (IBEW) AND THE COMMUNICATIONS WORKERS OF AMERICA (CWA) OVER
WHOSE MEMBERS WOULD PERFORM CERTAIN TELEPHONE INSTALLATION WORK IN COOK
COUNTY, ILL.  PETITIONER INTERNATIONAL TELEPHONE & TELEGRAPH CORP.,
WHICH HAD A NATIONWIDE COLLECTIVE-BARGAINING ARGEEMENT WITH THE CWA,
HAD ESTABLISHED A COMMUNICATIONS EQUIPMENT AND SYSTEMS DIVISION TO SELL
AND INSTALL PRIVATE TELEPHONE SYSTEMS.  /4/  IN 1970 PETITIONER ENTERED
INTO A CONTRACT WITH THE VILLAGE OF ELK GROVE, ILL., FOR THE
INSTALLATION AND SALE OF A SWITCHING SYSTEM AND RELATED TELEPHONE AND
CIRCUITRY WORK.  SINCE EMPLOYEES OF THE ILLINOIS BELL TELEPHONE CO.,
WHO WERE MEMBERS OF LOCAL 134, IBEW, HAD ALREADY RUN TRUNKLINES FROM
THE LOCAL OPERATING TELEPHONE SYSTEM TO THE ADMINISTRATIVE OFFICE OF
THE VILLAGE, PETITIONER'S CONTRACT COVERED ONLY THE REMAINING TWO
STAGES NECESSARY TO COMPLETE INSTALLATION OF THE SYSTEM.  FIRST THE
TELEPHONE CABLE HAD TO BE ROUTED FROM THE TELEPHONE ROOM IN THE
BASEMENT TO THE TELEPHONE INSTRUMENTS IN PARTICULAR ROOMS AND OFFICES
BY A PROCESS KNOWN AS "PULLING CABLE"; PETITIONER SUBCONTRACTED THIS
WORK TO THE C.A. RILEY ELECTRIC CONSTRUCTION CO., WHOSE EMPLOYEES ARE
REPRESENTED BY RESPONDENT LOCAL 134, IBEW.  SECOND, BY A PROCESS KNOWN
AS "TERMINATING THE CABLE," THE CABLE WOULD BE CONNECTED TO THE
TELEPHONE INSTRUMENTS.  PETITIONER PLANNED TO HAVE ITS OWN TECHNICIANS,
WHO WERE REPRESENTED BY THE CWA, PERFORM THIS WORK. 

C.A. RILEY HAD HOPED TO PERFORM THE TERMINATING WORK AND INQUIRED OF
PETITIONER'S SUPERVISOR WHETHER THAT WAS POSSIBLE.  THE SUPERVISOR
INFORMED RILEY OF PETITIONER'S PLAN TO HAVE ITS OWN EMPLOYEES DO THE
WORK, AND RILEY TOLD THE SUPERVISOR THAT PETITIONER'S REPRESENTATIVES
HAD BETTER MEET WITH THE BUSINESS AGENT OF RESPONDENT IBEW.  ON TWO
OCCASIONS PETITIONER'S REPRESENTATIVES MET WITH THE UNION BUSINESS
AGENT, WHO TOLD THEM THAT LOCAL 134, IBEW INSTALLED ALL TELEPHONE
EQUIPEMNT IN COOK COUNTY AND THAT CWA MEMBERS WOULD INSTALL NO
TELEPHONE EQUIPMENT IN COOK COUNTY.  ON THE SECOND OCCASION THE
RESPONDENT'S BUSINESS AGENT WAS QUITE EXPLICIT:  "WE'D BETTER GET THAT
WORK OR THERE WILL BE TROUBLE."  /5/ 

WHEN CWA EMPLOYEES APPEARED AT THE JOBSITE ON DECEMBER 3, 1970, TO
BEGIN THEIR PORTION OF THE WORK, ALL OF RESPONDENT'S MEMBERS LEFT THEIR
JOBS.  /6/  THAT AFTERNOON A REPRESENTATIVE OF THE VILLAGE OF ELK GROVE
MET WITH PETITIONER'S REGIONAL SALES MAMAGER, AND THEY AGREED TO PULL
PETITIONER'S EMPLOYEES OFF THE JOB TEMPORARILY.  REPRESENTATIVES OF
RESPONDENT WERE INFORMED, AND ALL LOCAL 134 EMPLOYEES THEREAFTER
RETURNED TO WORK.  /7/ 

ON DECEMBER 3, 1970, PETITIONER FILED A CHARGE ALLEGING THAT
RESPONDENT HAD VIOLATED 8 (B)(4)(D) OF THE NATIONAL LABOR RELATIONS
ACT, 29 U.S.C. 158 (B)(4)(D).  THE BOARD'S REGIONAL DIRECTOR FOUND
REASONABLE CAUSE TO BELIEVE THAT THE CHARGE HAD MERIT AND PROCEEDED IN
ACCORDANCE WITH THE LANGUAGE OF 10 (K): 

     "WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN AN

  UNFAIR LABOR PRACTICE WITHIN THE MEANING OF PARAGRAPH (4)(D) OF

  SECTION 158(B) OF THIS TITLE, THE BOARD IS EMPOWERED AND DIRECTED

  TO HEAR AND DETERMINE THE DISPUTE OUT OF WHICH SUCH UNFAIR LABOR

  PRACTICE SHALL HAVE ARISEN, UNLESS, WITHIN TEN DAYS AFTER NOTICE

THAT SUCH CHARGE HAS BEEN FILED, THE PARTIES TO SUCH DISPUTE

  SUBMIT TO THE BOARD SATISFACTORY EVIDENCE THAT THEY HAVE

  ADJUSTED, OR AGREED UPON METHODS FOR THE VOLUNTARY ADJUSTMENT OF,

  THE DISPUTE.  UPON COMPLIANCE BY THE PARTIES TO THE DISPUTE WITH

  THE DECISION OF THE BOARD OR UPON SUCH VOLUNTARY ADJUSTMENT OF

  THE DISPUTE, SUCH CHARGE SHALL BE DISMISSED."  29 U.S.C. 160

  (K). 

RESPONDENT WAS NOTIFIED THAT A HEARING WOULD BE CONDUCTED BY A HEARING
OFFICER /8/  UPON THE DISPUTE ALLEGED IN THE CHARGE, AND THE HEARING
WAS HELD ON MARCH 12, 15, AND 17, 1971, WITH STEPHEN S. SCHULSON, AN
ATTORNEY IN THE REGIONAL OFFICE, PRESIDING.  ALL PARTIES APPEARED AT
THE HEARING AND WERE GIVEN FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, AND TO ADDUCE EVIDENCE BEARING ON THE ISSUES. 
IN ACCORDANCE WITH NLRB REGULATIONS THE RECORD WAS TRANSMITTED TO THE
BOARD FOR DECISION WITHOUT ANY RECOMMENDATION FROM THE HEARING
OFFICER.  /9/  THE BOARD RECEIVED BRIEFS FROM PETITIONER, RESPONDENT,
AND THE CWA, AND CONCLUDED THAT EMPLOYEES REPRESENTED BY THE CWA, AND
CONCLUDED THAT EMPLOYEES REPRESENTED BY THE CWA WERE ENTITLED TO
PERFORM THE WORK IN DISPUTE.  191 N.L.R.B. 828 (1971).  ON AUGUST 30,
1971, RESPONDENT NOTIFIED THE REGIONAL DIRECTOR THAT IT WOULD NOT
COMPLY WITH THE BOARD'S 10 (K) DETERMINATION.  THE REGIONAL DIRECTOR,
ON BEHALF OF THE BOARD'S GENERAL COUNSEL, THEN ISSUED A COMPLAINT UPON
THE 8 (B)(4)(D) UNFAIR LABOR PRACTICE CHARGE THAT HAD BEEN HELD IN
ABEYANCE PENDING THE ATTEMPT TO RESOLVE THE DISPUTE PURSUANT TO THE 10
(K) PROCEEDING.  AT THE HEARING BEFORE A TRIAL EXAMINER, THE GENERAL
COUNSEL WAS REPRESENTED BY THE SAME ATTORNEY WHO HAD PRESIDED OVER THE
COMPLIATION OF TESTIMONY FOR THE BOARD IN THE 10 (K) PROCEEDING.  THE
TRIAL EXAMINER CONCLUDED THAT RESPONDENT HAD VIOLATED 8(B)(4) (D) AND
HE RECOMMENDED THAT RESPONDENT BE ORDERED TO CEASE ITS UNLAWFUL
CONDUCT; EXCEPTIONS WERE FILED WITH THE BOARD /10/  WHICH IT OVERRULED
IN ORDERING RESPONDENT TO CEASE AND DESIST FROM ITS UNLAWFUL CONDUCT. 
197 N.L.R.B. 879 (1972). 

RESPONDENT FILED A PETITION TO REVIEW AND SET ASIDE THE BOARD'S
ORDER IN THE COURT OF APPELAS FOR THE SEVENTH CIRCUIT, AND THE BOARD
FILED A CROSS-APPLICATION FOR ENFORCEMENT OF ITS ORDERS.  /11/  THE
COURT OF APPELAS FOUND RESPONDENT'S CONDUCT TO BE "THE VERY ACTIVITY 8
(B)(4) (D) WAS INTENDED TO PROHIBIT," 486 F.2D, AT 866, BUT REFUSED TO
ENFORCE THE BOARD'S ORDER BECASUE IT DECIDED THAT THE BOARD HAD NOT
COMPLIED WITH THE ACT, 5 U.S.C. 5549 /12/  THE COURT WAS UNDER THE
IMPRESSION THAT THE PARTIES HAD "ADMITTED THAT 554 APPLIES TO 10 (K)
HEARINGS,"  486 F.2D, AT 867, AND REGARDED THE PARTICIPATION BY
SCHULSON IN BOTH PROCEEDINGS AS A VIOLATION OF 5 U.S.C. 554 (D), WHICH
PROHIBITS COMMINGLING PROSECUTORIAL AND ADJUDICATORY FUNCTIONS.  SEE N.
12, SUPRA.  EVEN THOUGH THE BOARD HAD ARGUED THAT THE 10 (K) PROCEEDING
"WAS WITHOUT BINDING EFFECT ON ANYONE" SO THAT "IT WAS NOT IMPROPER FOR
THE SAME PERSON TO PERFORM THE FUNCTIONS OF HEARING OFFICER AND
SUBSEQUENTLY PROSECUTE AN UNFAIR LABOR PRACTICE CHARGE BASED UPON THE
EVIDENCE ADDUCED AT THAT HEARING," THE COURT OF APPELAS RELIED UPON
THIS COURT'S OPINION IN NLRB V. PLASTERS' UNION, 404 U.S. 116 (1971),
TO SUPPORT ITS CONCLUSION THAT "THE HEARING OFFICER'S RULINGS AT THE 10
(K) HEARING LARGELY DETERMINE WHAT EVIDENCE THE BOARD WILL HAVE TO
CONSIDER AT THE UNFAIR LABOR PRACTICE HEARING.  . . ."  486 F.2D, AT
866 - 867.  WITH THAT PERSPECTIVE, THE COURT OF APPEALS FOUND THE
ATTORNEY'S PARTICIPATION TO BE "PLAINLY INCONSISTENT WITH BOTH THE
SPIRIT AND THE LETTER OF THE ACT."  ID., AT 868. 

        I 

TO DETERMINE WHETHER 554 GOVERNS PROCEEDINGS CONDUCTED UNDER 10 (K)
OF THE NATIONAL LABOR RELATIONS ACT NECESSITATES SOME UNDERSTANDING OF
BOTH STATUTORY PROVISIONS WHICH, AS NOTED ABOVE, WERE ENACTED WITHIN A
YEAR OF EACH OTHER.  THE ADMINISTRATIVE PROCEDURE ACT WAS APTLY
DESCRIBED IN WONG YANG SUNG, SUPRA, AS "A NEW, BASIC AND COMPREHENSIVE
REGULATION OF PROCEDURES IN MANY AGENCIES," 339 U.S., AT 36.  THE COURT
THERE FURTHER OBSEERVED THAT THE ACT "CONTAINS MANY COMPROMISES AND
GENERALITIES AND, NO DOUBT, SOME AMBIGUITIES."  ID., AT 40 - 41. 
BECAUSE IT WAS DESIGNED TO REGULATE ADMINISTRATIVE PROCEEDINGS
THROUGHOUT A WIDE SPECTRUM OF AGENCY ACTIVITIES, ITS LANGUAGE IS
NECESSARILY ABSTRACT IN MANY PLACES.  THE MORE WE MAY KNOW ABOUT THE
PARTICULAR AGENCY PROCEEDING TO WHICH THE ACT IS SOUGHT TO BE APPLIED,
THE BETTER WE WILL BE ABLE TO APPLY IT. 

THE EVENTS LEADING UP TO THE ENACTMENT OF 8 (B)(4)(D) AND 10 (K)
HAVE BEEN RECOUNTED BY THIS COURT IN CBS, SUPRA, AND PLASTERERS' UNION,
SUPRA, AND NEED NOT HERE BE REVIEWED IN DETAIL.  CONGRESS MADE THE
JUDGMENT "THAT IT IS MORE IMPORTANT TO INDUSTRIAL PEACE HAT
JURISDICTIONAL DISPUTES BE SETTLED PERMANENTLY THAN IT IS THAT UNFAIR
LABOR PRACTICE SANCTIONS FOR JURISDICTIONAL STRIKES BE IMPOSED UPON
UNIONS."  CBA, 364 U.S., AT 577.  VOLUNTARY AND THEREFORE PROMPT
RESOLUTION OF SUCH JURISDICTIONLA DISPUTES IS ENCOURAGED BOTH BY THE 10
DAY GRACE PERIOD FOLLOWING NOTICE OF THE FILING OF AN UNFAIR LABOR
PRACTICE CHARGE, AND BY THE DISMISSAL OF SUCH A CHARGE IF THE UNION
COMPLIES WITH THE BOARD'S ADVERSE 10 (K) DETERMINATION.  29 CFR
101.36. 

TO EFFECTUATE THE CONGRESSIONAL OBJECTIVE OF PROMPT RESOLUTION OF
JURISDICTIONAL DISPUTES, ALMOST FROM THE DATE OF THE ENACTMENT OF 10
(K), THE BOARD HAS APPLIED PROCEDURES TO PROCEEDINGS UNDER THAT SECTION
THAT ARE QUITE DIFFERENT FROM THOSE OF A PROCEEDING UNDER 8 (B)(4)(D). 
THE 10 (K) HEARING IS DESCRIBED IN THE BOARD'S REGULATIONS: 

     "IF THE PARTIES HAVE NOT ADJUSTED THE DISPUTE OR AGREED UPON

  METHODS OF VOLUNTARY ADJUSTMENT, A HEARING, USUALLY OPEN TO THE

 PUBLIC, IS HELD BEFORE A HEARING OFFICER.  THE HEARING IS

  NONADVERSARY IN CHARACTER, AND THE PRIMARY INTEREST OF THE

  HEARING OFFICER IS TO INSURE THAT THE RECORD CONTAINS AS FULL A

  STATEMENT OF THE PERTINENT FACTS AS MAY BE NECESSARY FOR A

  DETERMINATION OF THE ISSUES BY THE BOARD.  ALL PARTIES ARE

  AFFORDED FULL OPPORTUNITY TO PRESENT THEIR RESPECTIVE POSITIONS

  AND TO PRODUCE EVIDENCE IN SUPPORT OF THEIR CONTENTIONS.  THE

  PARTIES ARE PERMITTED TO ARGUE ORALLY ON THE RECORD BEFORE THE

  HEARING OFFICER.  AT THE CLOSE OF THE HEARING, THE CASE IS

  TRANSMITTED TO THE BOARD FOR DECISION.  THE HEARING OFFICER

  PREPARES AN ANALYSIS OF THE ISSUES AND THE EVIDENCE, BUT MAKES NO

  RECOMMENDATIONS IN REGARD TO RESOLUTION OF THE DISPUTE."  29 CFR

  101.34. 

STREAMLINED PROCEDURES WERE BOTH DESIGNED AND JUSTIFIED BECAUSE "THE
DECISION IN THE PROCEEDINGS UNDER SECTION 10 (K) IS A PRELIMINARY
ADMINISTRATIVE DETERMINATION MADE FOR THE PURPOSE OF ATTEMPTING TO
RESOLVE A DISPUTE WITHIN THE MEANING OF THAT SECTION; THE UNFAIR LABOR
PRACTICE ITSELF IS LITIGATED AT A SUBSEQUENT HEARING BEFORE A TRIAL
EXAMINER IN THE EVENT THE DISPUTE REMAINS UNRESOLVED."  NATIONAL UNION
OF MARINE COOKS & STEWARDS (IRWIN-LYONS LUMBER CO.), 83 N.L.R.B. 341
(1949).  /13/ 

THE BOARD CONCLUDED FROM THIS ANALYSIS OF THE NATURE OF THE 10 (K)
PROCEEDING THAT THE PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT
GOVERNING ADJUDICATIONS WERE NOT APPLICABLE.  WHILE AN AGENCY'S
INTERPRETATION OF THE ADMINISTRATIVE PROCEDURE ACT MAY NOT BE ENTITLED
TO THE SAME WEIGHT AS THE AGENCY'S INTERPRETATION OF ITS OWN
SUBSTANTIVE MANDATE, SEE UNITED STATES V. FLORIDA EAST COAST R. CO.,
410 U.S. 224, 236 N. 6 (1973), ITS CHARACTERIZATION OF ITS OWN
PROCEEDING IS ENTITLED TO WEIGHT, AND THAT CHARACTERIZATION MAY IN TURN
HAVE RELEVANCE IN DETERMINING THE APPLICABILITY OF THE ADMINISTRATIVE
PROCEDURE ACT. 

        II 

THE QUESTION WHICH WE MUST DECIDE HERE IS WHETHER THE 10 (K)
DETERMINATION IS AN "ADJUDICATION" GOVERNED BY THE ACT, 5 U.S.C. 554. 
THE COURT OF APPEALS DID NOT CONSIDER IN ANY DETAIL WHETHER 554 GOVERNS
10 (K) PROCEEDINGS SINCE IT WAS UNDER THE IMPRESSION THAT THE PARTIES
HAD CONCEDED THE GENERAL APPLICABILITY OF THIS SECTION TO SUCH
HEARINGS.  486 F.2D, AT 867.  PETITIONER AND THE BOARD CONTEND THAT THE
COURT OF APPEALS WAS MISTAKEN WITH RESPECT TO ANY SUCH CONCESSION, AND
STATE THAT THEY ARGUED BOTH IN THEIR PRINCIPAL BRIEFS AND IN THEIR
PETITIONS FOR REHEARING THAT 554 WAS NOT APPLICABLE.  RESPONDENT
ACKNOWLEDGES THAT NO SUCH CONCESSION WAS MADE,  /14/ AND WE THEREFORE
ADDRESS THE ISSUE ON ITS MERITS.     IF ONE WERE TO START WITH THE
PROPOSITION THAT ALL ADMINISTRATIVE ACTION FALLS INTO ONE OF TWO
CATEGORIES, RULEMAKING OR ADJUDICATION, THE 10 (K) DETERMINATION
CERTAINLY IS CLOSER TO THE LATTER THAN TO THE FORMER.  BUT SUCH LIGHT
AS WE HAVE ON THE INTENTION OF CONGRESS WHEN IT ENACTED THE ACT DOES
NOT INDICATE THAT THIS IS A SOUND STARTING POINT.  KNOWLEDGEABLE
AUTHORITIES N THIS FIELD OBSERVED SHORTLY AFTER PASSAGE OF THE ACT THAT
"CERTAIN TYPES OF AGENCY ACTION ARE NEITHER RULE MAKING NOR
ADJUDICATION."  GINNANE, "RULE MAKING, " "ADJUDICATION"  AND EXEMPTIONS
UNDER THE ADMINISTRATIVE PROCEDURE ACT, 95 U. PA. L. REV. 621, 633
(1947); NETTERVILLE, THE ADMINISTRATIVE PROCEDURE ACT: A STUDY IN
INTERPRETATION, 20 GEO. WASH. L. REV. 1, 33 (1951); CF. ATTORNEY
GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 40 (1947). 

STATUTE TO THE DETERMINED ON THE RECORD AFTER OPPORTUNITY FOR AN AGENCY
HEARING,"  /15/  AND 5 U.S.C. 551 (7), DEFINES "ADJUDICATION" AS
"AGENCY PROCESS FOR THE FORMULATION OF AN ORDER"; "ORDER"  IS IN TURN
DEFINED AS "THE WHOLE OR A PART OF A FINAL DISPOSITION ... OF AN AGENCY
IN A MATTER OTHER THAN RULE MAKING BUT INCLUDING LICENSING," 5 U.S.C.
551 (6).  WHILE ONE MIGHT ARGUE THAT AN INTERMEDIATE PROCEEDING WITHIN
AN AGENCY IS NECESSARILY A "PART" OF A "FINAL ORDER,"  WE THINK A
SOUNDER INTERPRETATION OF THE LANGUAGE CONGRESS USED IS THAT THE PHRASE
"WHOLE OR A PART" REFERS TO COMPONENTS OF THAT WHICH IS ITSELF THE
FINAL DISPOSITION REQUIRED BY THE DEFINITION OF ORDER" IN 551 (6). 
INTERMEDIATE PROCEEDINGS WITHIN AN AGENCY MAY BE SUBJECT TO THE
PROVISIONS OF 554, HOWEVER, BY VIRTUE OF THE FACT THAT THEY ARE "AGENCY
PROCESS FOR THE FORMULATION OF AN ORDER" RATHER THAN BECAUSE THEIR
PRODUCT IS A "PART" OF THE FINAL DISPOSITION.  THUS IF THE BOARD'S 10
(K) DETERMINATION IS ITSELF A "FINAL DISPOSITION" OF A BOARD PROCEEDING
OR IS "AGENCY PROCESS FOR THE FORMULATION" OF AN ORDER IN A RESULTING
8(B)(4)(D) PROCEEDING, THEN THE 10 (K) PROCEEDING IS GOVERNED BY 5
U.S.C. 554. 

IN A TAUTOLOGICAL SENSE, OF COURSE, THE BOARD'S DETERMINATION IN A
10 (K) PROCEEDING IS A "FINAL DISPOSITION"  OF THAT PROCEEDING, BUT WE
THINK THAT WHEN CONGRESS DEFINED "ORDER" IN TERMS OF A "FINAL
DISPOSITION," IT REQUIRED THAT "FINAL DISPOSITION" TO HAVE SOME
DETERMINATE CONSEQUENCES FOR THE PARTY TO THE PROCEEDING.  THE BOARD
DOES NOT ORDER ANYBODY TO DO ANYTHING AT THE CONCLUSION OF A 10 (K)
PROCEEDING.  AS THE ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE
PROCEDURE ACT 40 (1947) OBSERVED: "(INVESTIGATORY PROCEEDINGS, NO
MATTER HOW FORMAL, WHICH DO NOT LEAD TO THE ISSUANCE OF AN ORDER
CONTAINING THE ELEMENT OF FINAL DISPOSITION AS REQUIRED BY DEFINITION,
DO NOT CONSTITUTE ADJUDICATION."  THIS COURT NOTED IN PLASTERERS'
UNION, 404 U.S., AT 126, THAT "THE 10 (K) DECISION STANDING ALONE,
BINDS NO ONE."  WE CONCLUDE, THEREFORE, THAT THE 10 (K) DETERMINATION
IS NOT ITSELF A "FINAL DISPOSITION" WITHIN THE MEANING OF "ORDER" AND
"ADJUDICATION" IN 5 U.S.C 551 (6), (7). 

RESPONDENT'S PRINCIPAL ARGUMENT FOR AFFIRMANCE OF THIS CASE RESTS ON
THE CONTENTION THAT ALTHOUGH THE 10 (K) DETERMINATION MAY NOT ITSELF BE
A "FINAL DISPOSITION," AND THEREFORE AN "ORDER," IT IS "AGENCY PROCESS
FOR THE FORMULATION"  OF THE ULITMATE 8 (B)(4)(D) ORDER THAT THE BOARD
MAY ISSUE. 

THERE ARE UNDOUBTEDLY IMPORTANT PRACTICAL CONSEQUENCES IN THE 8
(B)(4)(D) PROCEEDING THE RESULT FROM THE BOARD'S DETERMINATION IN THE
10 (K) PROCEEDING.  THESE WERE DESCRIBED IN THE FOLLOWING LANGUAGE IN
PLASTERERS' UNION, 404 U.S., AT 126 - 127: 

"(THE IMPACT OF THE 10 (K) DECISION IS FELT IN THE 8 (B)(4)(D)
HEARING BECAUSE FOR ALL PRACTICAL PURPOSES THE BOARD'S AWARD DETERMINES
WHO WILL PREVAIL IN THE UNFAIR LABOR PRACTICE PROCEEDING.  IF THE
PICKETING UNION PERSISTS IN ITS CONDUCT DESPITE A 10 (K) DECISION
AGAINST IT, A 8 (B)(4)(D) COMPLAINT ISSUES AND THE UNION WILL LIKELY BE
FOUND GUILTY OF AN UNFAIR LABOR PRACTICE AND BE ORDERED TO CEASE AND
DESIST.  ON THE OTHER HAND, IF THAT UNION WINS THE 10 (K) DECISION AND
THE EMPLOYER DOES NOT COMPLY, THE EMPLOYER'S 8 (B)(4)(D) CASE
EVAPORATES AND THE CHARGES HE FILED AGAINST THE PICKETING UNION WILL BE
DISMISSED.  NEITHER THE EMPLOYER NOR THE EMPLOYEES TO WHOM HE HAS
ASSIGNED THE WORK ARE LEGALLY BOUND TO OBSERVE THE 10 (K) DECISION, BUT
BOTH WILL LOSE THEIR 8 (B)(4)(D) PROTECTION AGAINST THE PICKETING WHICH
MAY, AS IT DID HERE, SHUT DOWN THE JOB.  THE EMPLOYER WILL BE UNDER
INTENSE PRESSURE, PRACTICALLY TO CONFORM TO THE BOARD'S DECISION.  THIS
IS THE DESIGN OF THE ACT; CONGRESS PROVIDED NO OTHER WAY TO IMPLEMENT
THE BOARD'S 10 (K) DECISION."  (FOOTNOTE OMITTED.)  BUT WE DO NOT THINK
THAT SUCH PRACTICAL CONSEQUENCES ALONE MAKE THE 10 (K) PROCEEDING
RELATED TO THE 8 (B)(4)(D) PROCEEDING IN A MANNER THAT WOULD MAKE THE
FORMER "AGENCY PROCESS" FOR THE FORMULATION OF THE ORDER IN THE
LATTER.  THE PROTOTYPE OF AN INTERMEDIATE PROCEEDING THAT IS "AGENCY
PROCESS FOR THE FORMULATION OF AN ORDER," IS A HEARING BEFORE AN
ADMINISTRATIVE LAW JUDGE WHO MAKES FINDINGS OF FACT AND CONCLUSIONS OF
LAW, INITIALLY DECIDES THE CASE, AND WHOSE RECOMMENDED DECISION
"BECOMES THE DECISION OF THE AGENCY ... UNLESS THERE IS AN APPEAL TO,
OR REVIEW ON MOTION OF, THE AGENCY."  5 U.S.C. 557 (B).  ALL OF THE
PARTIES TO THIS CASE, FOR INSTANCE, AGREE THAT THE 5 (B)(4)(D) UNFAIR
LABOR PRACTICE HEARING BEFORE THE TRIAL EXAMINER (NOW ADMINISTRATIVE
LAW JUDGE) WAS SUBJECT TO 554 SINCE IT WAS "AGENCY PROCESS FOR THE
FORMULATION OF AN ORDER." 

THE RELATIONSHIP BETWEEN THE 10 (K) PROCEEDING AND THE 8 (B)(4)(D)
PROCEEDING, HOWEVER, IS QUITE DISTINCT FROM THE RELATIONSHIP BETWEENT
HE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE AND ULTIMATE REVIEW OF
HIS FINDINGS AND RECOMMENDATIONS BY THE AGENCY.  THE 10 (K) PROCEEDING
HAS A LIFE OF ITS OWN FROM THE TIME THAT TESTIMONY IS TAKEN IN THE
FIELD BY A HEARING OFFICER UNTIL THE TIME THE BOARD, WITH THE RECORD OF
THE TESTIMONY BEFORE IT BUT WITH NO PROPOSED FINDINGS OR CONCLUSIONS OR
RECOMMENDATONS FROM THE HEARING OFFICER, REACHES ITS OWN
DETERMINATION.  THE BOARD'S ATTENTION IN THE 10 (K) PROCEEDING IS NOT
DIRECTED TO ASCERTAINING WHETHER THERE IS SUBSTANTIAL EVIDENCE TO SHOW
THAT A UNION HAS ENGAGED IN FORBIDDEN CONDUCT WITH A FORBIDDEN
OBJECTIVE.  THOSE INQUIRIES ARE LEFT FOR THE 8 (B)(4)(D) PROCEEDING. 
/16/  INDEED, THE BOARD'S 10 (K) DETERMINATION IS NOT UNLIKE AN
ADVISORY OPINION, SINCE THE MATTER MAY WELL END THERE.  IF THE BOARD
DETERMINES THAT EMPLOYEES OF THE CHARGED UNION ARE ENTITLED TO THE
WORK, THE 8 (B)(4)(D) CHARGE AGAINST IT WILL BE DISMISSED.  29 CFR
102.91.  IF THE BOARD DETERMINATION IS ADVERSE TO THE CHARGED UNION AND
THE UNION ACCEDES, THE 8(B)(4)(D) CHARGE WILL BE DISMISSED AND THE
GENERAL COUNSEL WILL NOT ISSUE A COMPLAINT.  IBID.  ONLY IF THE UNION
INDICATES THAT IT WILL NOT COMPLY WITH THE BOARD'S DETERMINATION ARE
FURTHER PROCEEDINGS NECESSITATED, AND THOSE PROCEEDINGS WILL BE UNDER 8
(B)(4)(D), NOT 10 (K).  AS THIS COURT OBSERVED IN PLASTERERS' UNION,
404 U.S., AT 122 N. 10: 

"THE 10 (K) DETERMINATION IS NOT BINDING AS SUCH EVEN ON THE

  STRIKING UNION.  IF THAT UNION CONTINUES TO PICKET DESPITE AN

  ADVERSE 10 (K) DECISION, THE BOARD MUST PROVE THE UNION GUILTY OF

  A 8 (B)(4) (D) VIOLATION BEFORE A CEASE-AND-DESIST ORDER CAN

  ISSUE.  THE FINDINGS AND CONCLUSIONS IN A 10 (K) PROCEEDING ARE

  NOT RES JUDICATA ON THE UNFAIR LABOR PRACTICE USSIE IN THE LATER

  8(B)(4)(D) DETERMINATION.  INTERNATIONAL TYPOGRAPHICAL UNION, 125

  U.L.R.B. 759, 761 (1959).  BOTH PARTIES MAY PUT IN NEW EVIDENCE

AT THE 8 (B)(4)(D) STAGE, ALTHOUGH OFTEN, AS IN THE PRESENT

  CASES, THE PARTIES AGREE TO STIPULATE THE RECORD OF THED 10 (K)

  HEARING AS A BASIS FOR THE BOARD'S DETERMINATION OF THE UNFAIR

  LABOR PRACTICE.  FINALLY, TO EXERCISE ITS POWERS UNDER 10 (K),

  THE BOARD NEED ONLY FIND THAT THERE IS REASONABLE CAUSE TO

  BELIEVE THAT A 8 (B)(4)(D) VIOLATION HAS OCCURRED, WHILE IN THE 8

  (B)(4)(D) PROCEEDING ITSELF THE BOARD MUST FIND BY A

  PREPONDERANCE OF THE EVIDENCE THAT THE PICKETING UNION HAS

  VIOLATED 8 (B)(4)(D).  INTERNATIONAL TYPOGRAPHICAL UNION, SUPRA,

  AT 761 N. 5 (1959)." 

IN EACH CASE IT IS THE AGENCY ITSELF, THE NATIONAL LABOR RELATIONS
BOARD, WHICH MAKES THE ULTIMATE DETERMINATION.  THE SAME ISSUES WILL
GENERALLY BE RELEVANT, THE RECORD OF THE EARLIER PROCEEDING WILL BE
ADMITTED IN THE LATER ONE, 29 CFR 102.92, AND THE BOARD'S RULING ON THE
MERITS OF THOSE ISSUES WHICH ARE COMMON TO THE TWO PROCEEDINGS IS
LIKELY TO BE THE SAME IN THE ONE AS IN THE OTHER.  BUT THE PROCEEDINGS
ARE NONETHELESS SEPARATE; THE SAME TRIBUNAL FINALLY DETERMINES EACH OF
THEM. 

WERE WE TO ADOPT RESPONDENT'S POSITION THAT MERELY BECAUSE A 10 (K)
DETERMINATION HAS A SIGNIGICANT PRACTICAL EFFECT ON THE 8 (B)(4)(D)
PROCEEDING, IT WAS THEREFORE "AGENCY PROCESS FOR THE FORMULATION" OF
THE 8 (B) (4)(D) ORDER, WE MIGHT WELL SWEEP UNDER THE DEFINITION OF
THAT TERM NUMEROUS ANCILLARY AGENCY PROCEEDINGS THAT ARE DISTINCT FROM
THE ADJUDICATIONS ON WHICH THEY HAVE AN EFFECT, AND WHICH THE LANGUAGE
OF THE ACT DOES NOT APPEAR TO HAVE BEEN DESIGNED TO REACH.  WE
THEREFORE DECLINE TO ADOPT THAT POSITION.  WE ACCORDINGLY CONCLUDE THAT
A 10 (K) DETERMINATION IS NEITHER ITSELF A FINAL DISPOSITION UNDER THE
DEFINITIONAL SECTION OF THE ADMINISTRATIVE PROCEDURE ACT, NOR IS IT
"AGENCY PROCESS FOR THE FORMULATION OF AN ORDER" WITHIN THE MEANING OF
THAT SECTION.  PROCEEDINGS UNDER 10(K) ARE THEREFORE NOT GOVERNED BY
THE ACT, 5 U.S.C. 554. 

ALTHOUGH THE BOARD'S 10(K) PROCEEDINGS NEED NOT BE CONDUCTED
PURSUANT TO THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 554, THE AGENCY
REMAINS "FREE UNDER THE ACT TO ACCORD LITIGANTS APPEARING BEFORE IT
MORE PROCEDURAL RIGHTS THAN THE ACT REQUIRES," FLORIDA EAST COAST R.
CO., 410 U.S., AT 236 N. 6.  /17/  THE BOARD'S PROCEDURES ARE, OF
COURSE, CONSTRAINED BY THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT,
BUT RESPONDENT HAS RAISED NO CONTENTION THAT ATTORNEY SCHULSON'S
PARTICIPATION IN BOTH PROCEEDINGS APPROACHED A CONSTITUTIONAL
VIOLATION.  /18/ 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 141, AS AMENDED
BY THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT.
542, 8(B)(4)(D), 29 U.S.C. 158 (B)(4)(D), PRESENTLY PROVIDES: 

"(B) IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR
ITS AGENTS--,

        *         *         *  *         * 

"(4) (I) TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE,
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY
PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE
IN EITHER CASE AN OBJECT THEREOF IS--,

        *         *         *         *         * 

"(D) FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE,
CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION
OR IN ANOTHER TRADE, CRAFT, OR CLASS, UNLESS SUCH EMPLOYER IS FAILING
TO CONFORM TO AN ORDER OR CERTIFICATION OF THE BOARD DETERMINING THE
BARGAINING REPRESENTATIVE FOR EMPLOYEES PERFORMING SUCH WORK." 

/2/  TITLE 29 U.S.C. 160 (K) PROVIDES: 

"WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN AN UNFAIR
LABOR PRACTICE WITHIN THE MEANING OF PARAGRAPH (4)(D) OF SECTION 158
(B) OF THIS TITLE, THE BOARD IS EMPOWERED AND DIRECTED TO HEAR AND
DETERMINE THE DISPUTE OUT OF WHICH SUCH UNFAIR LABOR PRACTICE SHALL
HAVE ARISEN, UNLESS, WITHIN TEN DAYS AFTER NOTICE THAT SUCH CHARGE HAS
BEEN FILED, THE PARTIES TO SUCH DISPUTE SUBMIT TO THE BOARD
SATISFACTORY EVIDENCE THAT THEY HAVE ADJUSTED, OR AGREED UPON METHODS
FOR THE VOLUNTARY ADJUSTMENT OF, THE DISPUTE.  UPON COMPLIANCE BY THE
PARTIES TO THE DISPUTE WITH THE DECISION OF THE BOARD OR UPON SUCH
VOLUNTARY ADJUSTMENT OF THE DISPUTE, SUCH CHARGE SHALL BE DISMISSED." 

/3/  60 STAT. 237, AS CODIFIED BY AN ACT TO ENACT TITLE 5, U.S.C.
80 STAT. 378.  SLIGHT MODIFICATIONS IN THE ACT SECTIONS UNDER
CONSIDERATION IN THIS CASE WERE MADE AT THE TIME OF CODIFICATION, BUT
NO SUBSTANTIVE CHANGES WERE INTENDED.  H.R. REP. NO. 901, 89TH CONG.,
1ST SESS., 3 (1965); S. REP. NO. 1380, 89TH CONG., 2D SESS., 18
(1966). 

/4/  THE DIVISION WAS ORGANIZED TO TAKE ADVANTAGE OF A RULING BY THE
FEDERAL COMMUNICATIONS COMMISSION THAT PRIVATE TELEPHONE SYSTEMS COULD
BE INTERCONNECTED WITH AN OPERATING TELEPHONE COMPANY SYSTEM.  USE OF
THE CARTERFONE DEVICE IN MESSAGE TOLL TELEPHONE SERVICE, 13 F.C.C. 2D
420 (1968). 

/5/  197 N.L.R.B. 879, 881 (1972). 

/6/  THE RESPONDENT'S BUSINESS AGENT HAD BEEN NOTIFIED THE PREVIOUS
EVENING THAT PETITIONER'S EMPLOYEES WOULD BEGIN THEIR WORK ON DECEMBER
3.  WHEN PETITIONER'S TWO EMPLOYEES REPORTED TO THE BASEMENT TELEPHONE
ROOM FOR WORK, TWO OF RESPONDENT'S MEMBERS, WHO WERE EMPLOYED BY THE
ILLINOIS BELL TELEPHONE CO., PACKED UP THEIR TOOLS AND LEFT BECAUSE
THEY WOULD NOT WORK WITH CWA MEMBERS.  RESPONDENT'S STEWARD ENTERED THE
ROOM AND DEMANDED TO SEE PETITIONER'S EMPLOYEES' UNION CARDS.  WHEN
THEY COULD NOT PRODUCE LOCAL 134 MEMBERSHIP CARDS, THE STEWARD
ANNOUNCED, "I CAN'T WORK HERE" OR "WE CANT'T WORK HERE."  197 N.L.R.B.,
AT 881.  AFTER THIS COMMENT, FOUR OR FIVE EMPLOYEES OF THE JOHNSON
ELECTRIC CO., WHO ALSO WERE MEMBERS OF LOCAL 134, DRIFTED AWAY.  AT A
COFFEE BREAK A FEW MOMENTS LATER, THE STEWARD TOLD ALL THE ASSEMBLED
MEMBERS OF LOCAL 134 THAT HE WAS GOING GOME BECAUSE HE DID NOT WANT TO
WORK WITH "NONUNION" MEN.  THE OTHER LOCAL 134 MEMBERS ALSO LEFT THE
JOB SITE AT THAT TIME, AND NONE WORKED ON THE JOB FOR THE REST OF THE
DAY.     /7/  PETITIONER'S EMPLOYEES REMAINED OFF THE JOB UNTIL
DECEMBER 21, AT WHICH TIME THEY RETURNED AND PERFORMED THE TERMINATING
WORK.  RESPONDENT'S MEMBERS, WHO HAD WORKED ON THE PROJECT AS EMPLOYEES
OF RILEY, ILLINOIS BELL, AND THE JOHNSON ELECTRIC CO., HAD COMPLETED
THEIR WORK BY DECEMBER 21 SO THAT NO SECOND CONFRONTATION OCCURRED. 

/8/  THE BOARD'S REGULATIONS PROVIDED THAT A "HEARING OFFICER" IS
"THE AGENT OF THE BOARD CONDUCTING THE HEARING IN A PROCEEDING UNDER
29 CFR 102.6 (1971).  A HEARING OFFICER "NORMALLY IS AN ATTORNEY OR
FIELD EXAMINER ATTACHED TO THE REGIONAL OFFICE BUT MAY BE ANOTHER
QUALIFIED OFFICIAL."  29 CFR 101.20 (C).  THE "HEARING OFFICER" IS TO
BE DISTINGUISHED FROM A "TRIAL EXAMINER," WHO PRESIDES OVER UNFAIR
LABOR PRACTICE PROCEEDINGS.  29 CFT 102.6.  THE BOARD'S CURRENT
REGULATION IS IDENTICAL TO THE REGULATION IN FORCE AT THE TIME OF THE
10 (K) PROCEEDING OF THE PRESENT CASE EXCEPT THAT THE TERM "TRIAL
EXAMINER" HAS BEEN CHANGED TO "ADMINISTRATIVE LAW JUDGE," 29 CFR 102.6
(1974).  SEE 37 FED. REG. 16787 (1972). 

/9/  THE BOARD'S REGULATIONS, 29 CFT 101.34, REQUIRE THE HEARING
OFFICER TO TRANSMIT THE RECORD TO THE BOARD BUT PROVIDE THAT HE SHALL
MAKE "NO RECOMMENDATIONS IN REGARD TO RESOLUTION OF THE DISPUTE." 

/10/  EXECPTION 16 BROUGHT TO THE BOARD'S ATTENTION THE FAILURE OF
THE TRAIL EXAMINER TO ADDRESS RESPONDENT'S ARGUMENT THAT THE ACT HAD
BEEN VIOLATED BY THE PARTICIPATION OF ATTORNEY SCHULSON IN BOTH THE 10
(K) AND 8 (B)(4)(D) PROCEEDINGS.  SINCE THE ISSUE OF THE APPLICABILITY
OF THE ACT WAS PRESENTED TO THE BOARD, THE COURT OF APPEALS WAS
ENTITLED TO CONSIDER THE OBJECTION, AND SO ARE WE.  29 U.S.C 160 (E)
(F). 

/11/  29 U.S.C. 160 (E)-(F). 

/12/  TITLE 5 U.S.C. 554 PROVIDES: 

"(A) THIS SECTION APPLIES, ACCORDING TO THE PROVISIONS THEREOF, IN
EVERY CASE OF ADJUDICATION REQUIRED BY STATUTE TO BE DETERMINED ON THE
RECORD AFTER OPPORTUNITY FOR AN AGENCY HEARING, EXCEPT TO THE EXTENT
THAT THERE IS INVOLVED--, 

"(1) A MATTER SUBJECT TO A SUBSEQUENT TRIAL OF THE LAW AND THE FACTS
DE NOVO IN A COURT; 

"(2) THE SELECTION OR TENURE OF AN EMPLOYEE, EXCEPT A HEARING
EXAMINER APPOINTED UNDER SECTION 3105 OF THIS TITLE; 

"(3) PROCEEDINGS IN WHICH DECISIONS REST SOLEY ON INSPECTIONS,
TESTS, OR ELECTIONS; 

"(4) THE CONDUCT OF MILITARY OR FOREIGN AFFAIRS FUNCTIONS; 

"(5) CASES IN WHICH AN AGENCY IS ACTING AS AN AGENT FOR A COURT; OR 

"(6) THE CERTIFICATION OF WORKER REPRESENTATIVES. 

"(B) PERSONS ENTITLED TO NOTICE OF AN AGENCY HEARING SHALL BE TIMELY
INFORMED OF--, 

"(1) THE TIME, PLACE, AND NATURE OF THE HEARINGS; 

"(2) THE LEGAL AUTHORITY AND JURISDICTION UNDER WHICH THE HEARING IS
TO BE HELD; AND 

"(3) THE MATTERS OF FACT AND LAW ASSERTED.  "WHEN PRIVATE PERSONS
ARE THE MOVING PARTIES, OTHER PARTIES TO THE PROCEEDING SHALL GIVE
PROMPT NOTICE OF ISSUES CONTROVERTED IN FACT OR LAW; AND IN OTHER
INSTANCES AGENCIES MAY BY RULE REQUIRE RESPONSIVE PLEADING.  IN FIXING
THE TIME AND PLACE FOR HEARINGS, DUE REGARD SHALL BE HAD FOR THE
CONVENIENCE AND NECESSITY OF THE PARTIES OR THEIR REPRESENTATIVES. 

"(C) THE AGENCY SHALL GIVE ALL INTERESTED PARTIES OPPORTUNITY FOR-
, 

"(1) THE SUBMISSION AND CONSIDERATION OF FACTS, ARGUMENTS, OFFERS OF
SETTLEMENT, OR PROPOSALS OF ADJUSTMENT WHEN TIME, THE NATURE OF THE
PROCEEDING, AND THE PUBLIC INTEREST PERMIT; AMD 

"(2) TO THE EXTENT THAT THE PARTIES ARE UNABLE SO TO DETERMINE A
CONTROVERSY BY CONSENT, HEARING AND DECISION ON NOTICE AND IN
ACCORDANCE WITH SECTION 556 AND 557 OF THIS TITLE. 

"(D) THE EMPLOYEE WHO PRESIDES AT THE RECEPTION OF EVIDENCE PURSUANT
TO SECTION 556 OF THIS TITLE SHALL MAKE THE RECOMMENDED DECISION OR
INTIAL DECISION REQUIRED BY SECTION 557 OF THIS TITLE, UNLESS HE
BECOMES UNAVAILABLE TO THE AGENCY.  EXCEPT TO THE EXTENT REQUIRED FOR
THE DISPOSITION OF EX PARTE MATTERS AS AUTHORIZED BY LAW, SUCH AN
EMPLOYEE MAY NOT--, 

"(1) CONSULT A PERSON OR PARTY ON A FACT IN ISSUE, UNLESS ON NOTICE
AND OPPORTUNITY FOR ALL PARTIES TO PARTICIPATE; OR 

"(2) BE RESPONSIBLE TO OR SUBJECT TO THE SUPERVISION OR DIRECTION OF
AN EMPLOYEE OR AGENT ENGAGED IN THE PERFORMANCE OF INVESTIGATIVE OR
PROSECUTING FUNCTIONS FOR AN AGENCY.  "AN EMPLOYEE OR AGENT ENGAGED IN
THE PERFORMANCE OF INVESTIGATIVE OR PROSECUTING FUNCTIONS FOR AN AGENCY
IN A CASE MAY NOT, IN THAT OR A FACTUALLY RELATED CASE, PARTICIPATE OR
ADVISE IN THE DECISION, RECOMMENDED DECISION OR AGENCY REVIEW PURSUANT
TO SECTION 557 OF THIS TITLE, EXCEPT AS WITNESS OR COUNSEL IN PUBLIC
PROCEEDINGS.  THIS SUBSECTION DOES NOT APPLY--, 

"(A) IN DETERMINING APPLICATIONS FOR INITIAL LICENSES; 

"(B) TO PROCEEDINGS INVOLVING THE VALIDITY OR APPLICATION OF RATES,
FACILITIES, OR PRACTICES OF PUBLIC UTILITIES OR CARRIERS; OR 

"(C) TO THE AGENCY OR A MEMBER OR MEMBERS OF THE BODY COMPRISING THE
AGENCY. 

"(E) THE AGENCY, WITH LIKE EFFECT AS IN THE CASE OF THE OTHER
ORDERS, AND IN IS SOUND DISCRETION, MAY ISSUE A DECLARATORY ORDER TO
TERMINATE A CONTROVERSY OR REMOVE UNCERTAINTY." 

/13/  THE BOARD HAS ADHERED CONSISTENTLY TO THIS POSITION.  SEE,
E.G., INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION (GENERAL ORE,
INC.), 124 N.L.R.B. 626, 628 - 629 (1959): 

"IT IS WELL ESTABLISHED THAT SECTION 8 OF THE ADMINISTRATIVE
PROCEDURE ACT, WHICH PROVIDES FOR THE ISSUANCE OF THE INITIAL DECISION
BY THE HEARING OFFICER, DOES NOT APPLY TO A PROCEEDING UNDER SECTION 10
(K).  UNDER SECTION 101.30 OF THE STATEMENTS OF PROCEDURE AND SECTION
102.80 OF THE BOARD'S RULES AND REGULATIONS, SERIES 7, THE HEARING
UNDER SECTION 10 (K) IS NONADVERSARY IN CHARACTER AND, ACCORDING TO THE
PROCEDURE ADOPTED THEREFOR, CONDUCTED IN THE SAME WAY AS A HEARING IN A
REPRESENTATION PROCEEDING.  THE BOARD ADOPTED SUCH PROCEDURE BECAUSE
THE DECISION UNDER SECTION 10 (K) IS A PRELIMINARY ADMINISTRATIVE
DETERMINATION MADE FOR THE PURPOSE OF ATTEMPTING TO SOLVE A DISPUTE
WITHIN THE MEANING OF THAT SECTION.  THE UNFAIR LABOR PRACTICE ITSELF
IS LITIGATED AT A SUBSEQUENT HEARING BEFORE A TRIAL EXAMINER IF THE
DISPUTE REMAINS UNRESOLVED.  IT IS TO THE SUBSEQUENT ADVERSARY
PROCEEDING, WHICH LEADS TO A FINAL BOARD DETERMINATION, THAT SECTION 8
OF THE ADMINISTRATIVE PROCEDURE ACT APPLIES.  THE PRIMARY FUNCTION OF
THE HEARING OFFICER, WHO IS ACTING UNDER THE DELEGATION OF AUTHORITY
FROM THE BOARD, IN A NONADVERSARY PROCEEDING IS TO INSURE THAT THE
RECORD CONTAINS A FULL STATEMENT OF PERTINENT FACTS AS MAY BE NECESSARY
FOR THE DETERMINATION OF THE DISPUTE BY THE BOARD.  THE HEARING OFFICER
MAKES NO RECOMMENDATIONS IN REGARD TO THE RESOLUTION OF THE DISPUTE. 
WHILE WE THINK IT BETTER PRACTICE NOT TO ASSIGN A BOARD AGENT WHO HAS
PREVIOUSLY ENGAGED IN THE PERFORMANCE OF INVESTIGATIVE AND PROSECUTING
FUNCTIONS FOR THE AGENCY TO ACT AS A HEARING OFFICER IN THE SAME OR IN
A RELATED CASE, WE FIND THAT THE LONGSHOREMEN IN THE INSTANT CASE WAS
NOT PREJUDICED BY SUCH ASSIGNMENT.  THE LONGSHOREMEN DOES NOT ALLEGE
THAT IT WAS DENIED THE OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORT OF
ITS CONTENTIONS, OR THAT IT WAS PREJUDICED IN ANY OTHER MANNER BY THE
CONDUCT OF THE HEARING OFFICER."  (FOOTNOTES OMITTED.)  IN GENERAL ORE,
UNLIKE THE PRESENT CASE, THE HEARING OFFICER HAD PREVIOUSLY PRESENTED
THE GENERAL COUNSEL IN PROCEEDINGS FACTUALLY RELATED TO THE 10 (K)
PROCEEDING AT WHICH HE LATER PRESIDED. 

/14/  TR. OF ORAL ARG. 20. 

/15/  THE BOARD, WHICH DID NOT JOIN WITH PETITIONER IN SEEKING
REVIEW OF THIS CASE BUT IS NEVERTHELESS A PARTY TO THE CASE UNDER THIS
COURT'S RULE 21 (4), URGES THAT EVEN IF THE 10 (K) PROCEEDING IS AN
"ADJUDICATION" UNDER THE ACT, THE LANGUAGE IN 10 (K) DIRECTING THE
BOARD "TO HEAR AND DETERMINE THE DISPUTE" IS NOT SUFFICIENT TO BRING
THE PROCEEDING WITHIN THE LANGUAGE OF 5 U.S.C. 554, WHICH OPERATES IN
THE CASE OF ADJUDICATIONS "REQUIRED BY STATUTE TO BE DETERMINED ON THE
RECORD AFTER OPPORTUNITY FOR AN AGENCY HEARING."  IN LIGHT OF OUR
DISPOSITION OF THE CASE IT IS UNNECESSARY TO ADDRESS THIS CONTENTION. 

/16/  THE BOARD'S POWERS UNDER 13 (K) DEPEND UPON WHETHER THERE IS
REASONABLE CAUSE TO BELIEVE THAT 8 (B)(4)(D) HAS BEEN VIOLATED.  IN THE
PRESENT CASE THE BOARD REVIEWED THE RECORD COMPLIED BY THE HEARING
OFFICER AND CONCLUDED THAT THE REQUISITE REASONABLE CAUSE EXISTED.  THE
RESPONDENT SUGGESTED THAT CERTAIN TESTIMONIAL EVIDENCE WAS INCREDIBLE,
BUT THE BOARD OBSERVED:  "IN A JURISDICTIONAL DISPUTE CONTEXT, THE
BOARD IS NOT CHARGED WITH FINDING THAT A VIOLATION DID IN FACT OCCUR,
BUT ONLY THAT THERE IS REASONABLE CAUSE TO BELIEVE THAT THERE HAS BEEN
A VIOLATION.  ON THIS TESTIMONY, AND WITHOUT RULING ON THE CREDIBILITY
OF THE TESTIMONY IN ISSUE, WE ARE SATISFIED THAT THERE IS REASONABLE
CAUSE TO BELIEVE THAT A VIOLATION OF SECTION 8 (B)(4)(D) HAS
OCCURRED."  191 N.L.R.B., AT 830 (FOOTNOTES OMITTED).  BY CONTRAST, A
UNION CAN BE FOUND GUILTY OF COMMITTING AN UNFAIR LABOR PRACTICE ONLY
IF A VIOLATION IS ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE.  29
U.S.C. 160 (C). 

/17/  THE BOARD INDICATES THAT "(IT IS NOT GENERAL PRACTICE TO USE
THE SAME PERSON WHO HEARS THE SECTION 10 (K) CASE TO INVESTIGATE AND
PROSECUTE THE SUBSEQUENT SECTION 8 (B)(4)(D) CASE."  MEMORANDUM FOR THE
NLRB 4 N. 4. 

/18/  THERE IS A SUGGESTION IN THE OPINION OF THE COURT OF APPEALS
THAT THE BOARD'S ORDER SHOULD NOT BE ENFORCED EVEN IF THE ACT DOES NOT
GOVERN THE 10 (K) PROCEEDING BECAUSE THE COMMINGLING OF FUNCTIONS WAS
"INCOMPATIBLE WITH THE ACCEPTED NORMS FOR THE PROPER ADMINISTRATION OF
JUSTICE."  486 F.2D 863, 868.  CF. WONG YANG SUNG V. MCGRATH, 339 U.S.
33 (1950).  IN THE PRESENT CASE, HOWEVER, ATTORNEY SCHULSON PROSECTED
THE CASE FOR THE GENERAL COUNSEL AFTER HE HAD PRESIDED AT THE 10 (K)
PROCEEDING.  EVEN IF IT BE ASSUMED THAT HIS FUNCTION AT THE 10 (K)
PROCEEDING WAS JUDICIAL IN NATURE, IT IS HARD TO SEE HOW THIS SEQUENCE
OF EVENTS WOULD PRESENT THE DANGER OF COMMINGLING WHICH THE COURT OF
APPEALS SAW.  THE COURT OF APPEALS MAY HAVE CONFUSED "HEARING OFFICERS"
WITH "TRIAL EXAMINERS" OR "HEARING EXAMINERS" (NOW "ADMINISTRATIVE LAW
JUDGES") WHO ARE ORDINARILY REQUIRED TO MAKE RECOMMENDED DECISIONS, 5
U.S.C. 557 (B), AND WHO MUST BE APPOINTED PURSUANT TO 5 U.S.C. 3105. 
486 F.2D, AT 867 N. 3. 

MATTHEW E. MURRAY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS JOHN D. O'BRIEN. 

ROBERT E. FITZGERALD, JR., ARGUED THE CAUSE FOR RESPONDENT LOCAL
134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS.  WITH HIM ON THE
BRIEF WAS EDWARD J. CALIHAN, JR. NORTON J. COME ARGUED THE CASUE FOR
RESPONDENT NATIONAL LABOR RELATIONS BOARD IN SUPPORT OF PETITIONER. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, PETER G. NASH, JOHN
S. IRVING, AND PATRICK HARDIN.  CHARLES V. KOONS, IRVING M. FRIEDMAN,
AND HAROLD A. KATZ FILED A BRIEF FOR RESPONDENT COMMUNICATIONS WORKERS
OF AMERICA IN SUPPORT OF PETITIONER. 
..END :













NATIONAL LEAGUE OF CITIES V. BRENNAN, 419 U.S. 1321 


       NATIONAL LEAGUE OF CITIES ET AL V. BRENNAN, SECRETARY OF

           LABOR

        ON APPLICATION FOR STAY

        NO. A-553.  DECEMBER 31, 1974 


    APPLICANT STATES, MUNICIPALITIES, AND OTHERS, WHICH HAVE
BROUGHT SUIT CHALLENGING THE CONSTITUTIONALITY OF THE 1974 AMENDMENTS
TO THE FAIR LABOR STANDARDS ACT, REQUEST, INTER ALIA, A STAY OF
PROVISIONS THAT GO INTO EFFECT JANUARY 1, 1975, FOLLOWING THE DISTRICT
COURT'S DENIAL OF A PRELIMINARY INJUNCTION AND DISMISSAL OF THE
COMPLAINT, WHICH THE COURT CHARACTERIZED AS INVOLVING "A DIFFICULT AND
SUBSTANTIAL QUESTION OF LAW."  IN VIEW OF VARIOUS FACTORS, INCLUDING
THAT COURT'S CONCERN, THE PERVASIVE IMPACT OF ITS JUDGMENT ON ALL STATE
AND MUNICIPAL GOVERNMENTS, AND THE BREVITY OF TIME, AN ORDER IS ENTERED
GRANTING THE REQUESTED RELIEF UNTIL THE APPLICATION CAN BE PRESENTED TO
THE FULL COURT AT THE EARLIEST CONVENIENT DATE.  SEE:  406 F. SUPP.
826. 

MR. CHIEF JUSTICE BURGER, CIRCUIT JUSTICE. 

THIS MATTER CAME TO ME AS AN INDIVIDUAL CIRCUIT JUSTICE FOR THE
DISTRICT OF COLUMBIA CIRCUIT AFTER THE CLOSE OF REGULAR BUSINESS HOURS
OF THIS COURT ON TUESDAY, DECEMBER 31, 1974, ON A MOTION OF THE ABOVE
NAMED APPLICANTS, STATES AND MUNICIPALITIES, THE NATIONAL LEAGUE OF
CITIES, AND THE NATIONAL GOVERNORS' CONFERENCE.  THE APPLICATION OF
SAID PARTIES REQUESTS A STAY OF THOSE PARTS OF THE 1974 AMENDMENTS TO
THE FAIR LABOR STANDARDS ACT, PUB. L. 93-259, 88 STAT. 55, AMENDING 29
U.S. C. 201 ET SEQ., WHICH GO INTO EFFECT JANUARY 1, 1975, A STAY OF
REGULATIONS PROMULGATED BY THE SECRETARY OF LABOR, 29 CFR PART 553, 39
FED. REG. 44142, EMPLOYEES OF PUBLIC AGENCIES ENGAGED IN FIRE
PROTECTION OR LAW ENFORCEMENT ACTIVITIES, INCLUDING SECURITY PERSONNEL
IN CORRECTIONAL INSTITUTIONS OF SAID STATES AND MUNICIPALITIES, AND AN
INJUNCTION AGAINST ENFORCEMENT BY THE SECRETARY OF LABOR OR BY ANY
OTHER PERSON IN ANY FEDERAL COURT TO ENFORCE PARTS OF THE SAID 1974
AMENDMENTS TO THE ABOVE-DESCRIBED ACT, WHICH WENT INTO EFFECT MAY 1,
1974. 

THE ABOVE-ENTITLED CASE WAS FILED IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA ON DECEMBER 12, 1974.  A THREE-JUDGE
DISTRICT COURT WAS CONVENED AND ON MONDAY, DECEMBER 30, 1974, HEARD
ARGUMENTS ON PLAINTIFFS' AND PLAINTIFF INTERVENORS' (ALL OF WHOM EXCEPT
FOR PLAINTIFF INTERVENOR STATE OF CALIFORNIA, ARE APPLICANTS ON THIS
APPLICATION) APPLICATION FOR A PRELIMINARY INJUNCTION.  EARLIER TODAY
AN ORDER WAS ENTERED, DENYING A PRELIMINARY INJUNCTION AND DISMISSING
THE COMPLAINT IN THE ABOVE-ENTITLED ACTION. 

THE THREE-JUDGE DISTRICT COURT IN DENYING THE RELIEF ON THE DAY
AFTER IT HEARD ARGUMENTS EXPRESSED THE VIEW THAT THE COMPLAINT RAISED
"A DIFFICULT AND SUBSTANTIAL QUESTION OF LAW" BUT CONCLUDED THAT IT WAS
BOUND BY THIS COURT'S HOLDING IN MARYLAND V. WIRTZ, 392 U.S. 183
(1968). 

IN LIGHT OF PERVASIVE IMPACT OF THE JUDGMENT OF THE DISTRICT COURT
ON EVERY STATE AND MUNICIPAL GOVERNMENT IN THE UNITED STATES, THE
NOVELTY OF THE LEGAL QUESTIONS PRESENTED, THE EXPRESSED CONCERN OF THE
DISTRICT COURT AS TO THE SUBSTANTIALITY OF THE CONSITITUTIONAL
QUESTIONS RAISED, THE BREVITY OF TIME AVAILABLE TO THE DISTRICT COURT
AND TO ME AS CIRCUIT JUSTICE, AND THE EXTENT AND NATURE OF THE INJURY
TO THE APPLICANTS, IT IS NOT APPROPRIATE TO TAKE FINAL ACTION AS AN
INDIVIDUAL JUSTICE. 

AGAINST THIS BACKGROUND, AND BALANCING THE INJURY TO THE
CONTEMPLATED ENFORCEMENT OF THE REGULATIONS BY THE SECRETARY, AGAINST
THE INJURY TO THE APPLICANTS IF THEY ARE ULTIMATELY SUCCESSFUL, AND
SHARING THE DOUBTS AND CONCERNS ARTICULATED BY THE DISTRICT COURT, I AM
NOT PREPARED--LESS THAN FIVE HOURS BEFORE THE REGULATIONS OF THE
SECRETARY BECOME EFFECTIVE--TO DO MORE THAN ENTER AN INTERIM ORDER
GRANTING THE RELIEF PRAYED FOR UNTIL THE APPLICATION CAN BE PRESENTED
TO THE FULL COURT AT THE EARLIEST CONVENIENT DATE.  AT THAT TIME THE
ENTIRE MATTER CAN BE CONSIDERED WITH THE BENEFIT OF A RESPONSE FROM THE
SOLICITOR GENERAL ON BEHALF OF THE SECRETARY. 

ACCORDINGLY, AN ORDER WILL BE ENTERED FORTHWITH, GRANTING THE RELIEF
PRAYED FOR UNTIL FURTHER ORDER OF THE COURT AND REFERRING THE
APPLICATION TO THE FULL COURT. 

THE SOLICITOR GENERAL HAS BEEN DIRECTED TO FILE ANY RESPONSE HE
DESIRES TO MAKE ON OR BEFORE WENDESDAY, JANUARY 8, 1975. 
..END :











SOCIALIST WORKERS PARTY V. ATTORNEY GENERAL, 419 U.S. 1314 


       SOCIALIST WORKERS PARTY V. ATTORNEY GENERAL

   ON APPLICATION FOR STAY

        NO. A-534. 


APPLICANTS, THE SOCIALIST WORKERS PARTY, ITS YOUTH ORGANIZATION
(YSA), AND VARIOUS INDIVIDUALS, BROUGHT AN ACTION AGAINST VARIOUS
GOVERNMENT OFFICIALS FOR ALLEGED INTERFERENCE IN THEIR POLITICAL
ACTIVITIES AND SOUGHT AN INJUNCTION, WHICH THE DISTRICT COURT GRANTED,
BARRING FBI AGENTS AND INFORMANTS FROM ATTENDING OR OTHERWISE
MONITORING THE YSA NATIONAL CONVENTION.  EXCEPT FOR UPHOLDING A BAR
AGAINST THE FBI'S TRANSMITTING TO THE CIVIL SERVICE COMMISSION (CSC)
THE NAMES OF PERSONS ATTENDING THE CONVENTION, THE COURT OF APPEALS
VACATED THE INJUNCTION, NOTING THAT THE CONVENTION WAS OPEN TO ANYONE
UNDER AGE 29 AND THAT THE ONLY INVESTIGATIVE METHOD WOULD BE THE USE OF
INFORMANTS WHO WOULD ATTEND MEETINGS AS THE PUBLIC WOULD AND THAT ANY
"CHILLING EFFECT" ON APPLICANTS' RIGHTS WAS NOT SUFFICIENT TO OUTWEIGH
PREJUDICE TO THE GOVERNMENT THAT COMPROMISING ITS INFORMANTS WOULD
ENTAIL.  APPLICANTS APPLY FOR A STAY OF THE COURT OF APPEALS' ORDER AND
REINSTATEMENT OF THE DISTRICT COURT'S INJUNCTION.  HELD:  ALTHOUGH,
UNLIKE THE SITUATION IN LAIRD V. TATUM, 408 U.S. 1, APPLICANTS'
ALLEGATIONS OF A "CHILLING EFFECT" ARE SUFFICIENTLY SPECIFIC TO SATISFY
ART. III'S JURISDICTIONAL REQUIREMENTS, NEVERTHELESS A STAY WOULD BE
IMPROPER, SINCE THE FBI HAS REPRESENTED THAT IT PLANS NO DISRUPTIVE
ACTIVITY AT THE CONVENTION AND WILL NOT TRANSMIT INFORMATION TO
NONGOVERNMENTAL ENTITIES, AND SINCE INTERIM RELIEF AGAINST DISCLOSURE
OF DELEGATES' NAMES TO THE CSC HAS BEEN GRANTED. 

MR. JUSTICE MARSHALL, CIRCUIT JUSTICE. 

THIS CASE IS BEFORE ME ON AN APPLICATION TO STAY AN ORDER ENTERED BY
A PANEL OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT, VACATING IN
PART AN ORDER OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK.  THE DISTRICT COURT HAD GRANTED A PRELIMINARY INJUNCTION AGAINST
THE DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION AND OTHERS, BARRING
GOVERNMENT AGENTS AND INFORMANTS FROM ATTENDING OR OTHERWISE MONITORING
THE NATIONAL CONVENTION OF THE YOUNG SOCIALIST ALLIANCE (YSA), TO BE
HELD IN ST. LOUIS, MISSOURI, BETWEEN DECEMBER 28, 1974, AND JANUARY 1,
1975.  APPLICANTS ALSO SEEK TO HAVE THE INJUNCTION OF THE DISTRICT
COURT REINSTATED IN FULL. 

APPLICANTS, THE SOCIALIST WORKERS PARTY, THE YSA-THE PARTY'S YOUTH
ORGANIZATION-AND SEVERAL INDIVIDUALS, ORIGINALLY BROUGHT THIS ACTION
AGAINST VARIOUS GOVERNMENT OFFICIALS, SEEKING INJUNCTIVE AND MONETARY
RELIEF FOR ALLEGED GOVERNMENTAL INTERFERENCE IN THE POLITICAL
ACTIVITIES OF THE TWO ORGANIZATIONS.  IN THE COURSE OF PREPARING FOR
TRIAL ON THE MERITS, THE APPLICANTS APPARENTLY LEARNED THAT THE FBI
PLANNED TO MONITOR THE YSA NATIONAL CONVENTION AND TO USE CONFIDENTIAL
INFORMANTS TO GAIN INFORMATION ABOUT CONVENTION ACTIVITIES.  THEY
SOUGHT TO ENJOIN THE FBI, ITS AGENTS, AND ITS INFORMANTS FROM
"ATTENDING, SURVEILLING, LISTENING TO, WATCHING, OR OTHERWISE
MONITORING," THE CONVENTION.  AFTER SEVERAL HEARINGS, THE DISTRICT
COURT GRANTED THE INJUNCTION IN THE FORM REQUESTED BY THE PLAINTIFFS. 
ON AN EXPEDITED APPEAL, /1/  THE COURT OF APPEALS VACATED THE DISTRICT
COURT'S INJUNCTION IN ALL RESPECTS EXCEPT ONE:  IT BARRED THE FBI FROM
TRANSMITTING THE NAMES OF PERSONS ATTENDING THE CONVENTION TO THE CIVIL
SERVICE COMMISSION PENDING FINAL DETERMINATION OF THE ACTION.  FOR THE
REASONS STATED BELOW, I HAVE CONCLUDED THAT ON THE FACTS OF THIS CASE,
THE EXTRAORDINARY RELIEF OF A STAY IS NOT WARRANTED. 

        I 

THE APPLICANTS ARGUE THAT A STAY IS NECESSARY TO PROTECT THE FIRST
AMENDMENT SPEECH AND ASSOICATION RIGHTS OF THOSE PLANNING TO ATTEND THE
YSA CONVENTION.  SURVEILLANCE AND OTHER FORMS OF MONITORING, THEY
CLAIM, WILL CHILL FREE PARTICIPATION AND DEBATE, AND MAY EVEN
DISCOURAGE SOME FROM ATTENDING THE CONVENTION ALTOGETHER.  BEYOND THIS,
THE APPLICANTS ALLEGE THAT THE FBI HAS ADMITTED THAT ITS AGENTS OR
INFORMANTS "INTEND TO PARTICIPATE IN THE CONVENTION DEBATE POSING AS
BONA FIDE YSA MEMBERS."  /2/  THIS "DOUBLE AGENT" ACTIVITY, THE
APPLICANTS CLAIM, WILL RESULT IN "CORRUPTION OF THE DEMOCRATIC PROCESS"
AND CONSEQUENT IRREPARABLE HARM TO THE APPLICANTS AND OTHERS WHO WOULD
PARTICIPATE IN THE CONVENTION. 

THE APPLICANTS FURTHER ASSERT THAT GRANTING THE RELIEF REQUESTED
HERE WILL NOT RESULT IN INJURY TO THE FBI.  THE FACT THAT THE FBI HAS A
DUTY TO KEEP ITSELF INFORMED CONCERNING THE POSSIBLE COMMISSION OF
CRIMES, APPLICANTS SAY, DOES NOT JUSTIFY ITS PERMITTING INFORMANTS AND
AGENTS TO PARTICIPATE IN THE CONVENTION, SINCE THE YSA HAS NOT BEEN
SHOWN TO HAVE ENGAGED IN ILLEGAL ACTIVITIES.  THEY FURTHER CLAIM THAT
THE RISK THAT FBI INFORMANTS WILL BECOME IDENTIFIABLE BY THEIR
NONATTENDANCE AT THE CONVENTION IS NOT SUFFICIENT TO SUPPORT THE COURT
OF APPEALS' ORDER.  WHILE THE APPLICANTS' ALLEGATIONS EVOKE AN UNSAVORY
PICTURE OF DECEIT AND POLITICAL SABOTAGE, THE FACTS AS CHARACTERIZED BY
THE COURT OF APPEALS SUGGEST A LESS SINISTER VIEW OF THE GOVERNMENT'S
PLANNED ACTIVITIES AT THE CONVENTION.  THE COURT NOTED THAT THE
CONVENTION WOULD BE OPEN TO ANYONE UNDER THE AGE OF 29; THAT ANYONE
COULD REGISTER; THAT EVEN THE "DELEGATED" SESSIONS WOULD BE OPEN TO
ANYONE REGISTERED AT THE CONVENTION; THAT THE GOVERNMENT PLANNED NO
ELECTRONIC SURVEILLANCE OR DISRUPTIVE ACTIVITY; AND THAT THE ONLY
INVESTIGATIVE METHOD WOULD BE THE USE OF INFORMANTS WHO WOULD ATTEND
THE MEETINGS JUST AS ANY MEMBER OF THE PUBLIC WOULD BE PERMITTED TO
DO. 

THE COURT OF APPEALS HELD THAT ON THE FACTS OF THIS CASE, THE
CHILLING EFFECT ON ATTENDANCE AND PARTICIPATION AT THE CONVENTION WAS
NOT SUFFICIENT TO OUTWEIGH THE SERIOUS PREJUDICE TO THE GOVERNMENT OF
PERMANENTLY COMPROMISING SOME OR ALL OF ITS INFORMANTS.  THE 11TH-HOUR
GRANT OR DENIAL OF INJUNCTIVE RELIEF WOULD NOT BE LIKELY TO HAVE A
SIGNIFICANT EFFECT ON ATTENDANCE AT THE CONVENTION, THE COURT STATED,
AND SINCE THE CONVENTION IS TO BE OPEN TO THE PUBLIC AND THE PRESS, THE
USE OF INFORMANTS TO GATHER INFORMATION WOULD NOT APPEAR TO INCREASE
APPRECIABLY THE "CHILL" ON FREE DEBATE AT THE CONVENTION.  IN WEIGHING
THE NATURE OF THE PLANNED INVESTIGATIVE ACTIVITY, THE JUSTIFICATION FOR
THAT ACTIVITY, AND THE CLAIMED FIRST AMENDMENT INFRINGEMENT IN THIS
CASE, THE COURT OF APPEALS DETERMINED THAT THE BALANCE OF THE EQUITIES
TIPPED IN FAVOR OF THE GOVERNMENT AND THAT A PRELIMINARY INJUNCTION WAS
THEREFORE IMPROPER. 

        II 

THIS CASE PRESENTS A DIFFICULT THRESHOLD QUESTION-- WHETHER THE
APPLICANTS HAVE RAISED A JUSTICIABLE CONTROVERSY UNDER THIS COURT'S
DECISION IN LAIRD V. TATUM, 408 U.S. 1 (1972).  IN LAIRD, THE
PLAINTIFFS PROTESTED SURVEILLANCE ACTIVITIES BY THE ARMY THAT WERE IN
MANY WAYS SIMILAR TO THOSE PLANNED BY THE FBI IN THIS CASE.  THE COURT
HELD, HOWEVER, THAT THE PLAINTIFFS' CLAIM THAT THE ARMY'S SURVEILLANCE
ACTIVITIES HAD A GENERAL CHILLING EFFECT ON THEM WAS NOT SUFFICIENT TO
ESTABLISH A CASE OR CONTROVERSY UNDER ART. III OF THE CONSTITUTION. 

THE GOVERNMENT HAS CONTENDED THAT UNDER LAIRD, A "CHILLING EFFECT"
WILL NOT GIVE RISE TO A JUSTICIABLE CONTROVERSY UNLESS THE CHALLENGED
EXERCISE OF GOVERNMENTAL POWER IS "REGULATORY, PROSCRIPTIVE, OR
COMPULSORY IN NATURE," AND THE COMPLAINANT IS EITHER PRESENTLY OR
PROSPECTIVELY SUBJECT TO THE REGULATIONS, PROSCRIPTIONS, OR COMPULSIONS
THAT HE IS CHALLENGING.  ID., AT 11.  IN MY VIEW, THE GOVERNMENT READS
LAIRD TOO BROADLY.  IN THE PASSAGE RELIED UPON BY THE GOVERNMENT, THE
COURT WAS MERELY DISTINGUISHING EARLIER CASES, NOT SETTING OUT A RULE
FOR DETERMINING WHETHER AN ACTION IS JUSTICIABLE OR NOT.  MORE APPOSITE
IS THE COURT'S OBSERVATION IN LAIRD THAT THE RESPONDENTS' CLAIM WAS 

"THAT THEY DISAGREE WITH THE JUDGMENTS MADE BY THE EXECUTIVE BRANCH
WITH RESPECT TO THE TYPE AND AMOUNT OF INFORMATION THE ARMY NEEDS AND
THAT THE VERY EXISTENCE OF THE ARMY'S DATA-GATHERING SYSTEM PRODUCES A
CONSTITUTIONALLY IMPERMISSIBLE CHILLING EFFECT UPON THE EXERCISE OF
THEIR FIRST AMENDMENT RIGHTS."  ID., AT 13.  BECAUSE THE "CHILLING
EFFECT" ALLEGED BY RESPONDENTS IN LAIRD AROSE FROM THEIR DISTASTE FOR
THE ARMY'S ASSUMPTION OF A ROLE IN CIVILIAN AFFAIRS OR FROM THEIR
APPREHENSION THAT THE ARMY MIGHT AT SOME FUTURE DATE "MISUSE THE
INFORMATION IN SOME WAY THAT WOULD CAUSE DIRECT HARM TO (THEM)," IBID.,
THE COURT HELD THE "CHILLING EFFECT" ALLEGATIONS INSUFFICIENT TO
ESTABLISH A CASE OR CONTROVERSY. 

IN THIS CASE, THE ALLEGATIONS ARE MUCH MORE SPECIFIC:  THE
APPLICANTS HAVE COMPLAINED THAT THE CHALLENGED INVESTIGATIVE ACTIVITY
WILL HAVE THE CONCRETE EFFECTS OF DISSUADING SOME YSA DELEGATES FROM
PARTICIPATING ACTIVELY IN THE CONVENTION AND LEADING TO POSIBLE LOSS OF
EMPLOYMENT FOR THOSE WHO ARE IDENTIFIED AS BEING IN ATTENDANCE. 
WHETHER THE CLAIMED "CHILL" IS SUBSTANTIAL OR NOT IS STILL SUBJECT TO
QUESTION, BUT THAT IS A MATTER TO BE REACHED ON THE MERITS, NOT AS A
THRESHOLD JURISDICTIONAL QUESTION.  THE SPECIFICITY OF THE INJURY
CLAIMED BY THE APPLICANTS IS SUFFICIENT, UNDER LAIRD, TO SATISFY THE
REQUIREMENTS OF ART. III. 

        III 

ALTHOUGH THE APPLICANTS HAVE ESTABLISHED JURISDICTION, THEY HAVE
NOT, IN MY VIEW, MADE OUT A COMPELLING CASE ON THE MERITS.  I CANNOT
AGREE THAT THE GOVERNMENT'S PROPOSED CONDUCT IN THIS CASE CALLS FOR A
STAY, WHICH, GIVEN THE SHORT LIFE REMAINING TO THIS CONTROVERSY, WOULD
AMOUNT TO AN OUTRIGHT REVERSAL OF THE COURT OF APPEALS. 

IT IS TRUE THAT GOVERNMENTAL SURVEILLANCE AND INFILTRATION CANNOT IN
ANY CONTEXT BE TAKEN LIGHTLY.  THE DANGERS INHERENT IN UNDERCOVER
INVESTIGATION ARE EVEN MORE PRONOUNCED WHEN THE INVESTIGATIVE ACTIVITY
THREATENS TO DAMPEN THE EXERCISE OF FIRST AMENDMENT RIGHTS.  SEE
DEGREGORY V. NEW HAMP.  ATTY.  GEN., 383 U.S. 825 (1966); GIBSON V.
FLORIDA LEGISLATIVE COMM., 372 U.S. 539 (1963); NAACP V. ALABAMA, 357
U.S. 449 (1958).  BUT OUR ABHORRENCE FOR ABUSES OF GOVERNMENTAL
INVESTIGATIVE AUTHORITY CANNOT BE PERMITTED TO LEAD TO AN
INDISCRIMINATE WILLINGNESS TO ENJOIN UNDERCOVER INVESTIGATION OF ANY
NATURE, WHENEVER A CONTERVAILING FIRST AMENDMENT CLAIM IS RAISED. 

IN THIS CASE, THE COURT OF APPEALS HAS ANALYZED THE COMPETING
INTERESTS AT SOME LENGTH, AND ITS ANALYSIS SEEMS TO ME TO COMPEL DENIAL
OF RELIEF.  AS THE COURT POINTED OUT, THE NATURE OF THE PROPOSED
MONITORING IS LIMITED, THE CONDUCT IS ENTIRELY LEGAL, AND IF RELIEF
WERE GRANTED, THE POTENTIAL INJURY TO THE FBI'S CONTINUING
INVESTIGATIVE EFFORTS WOULD BE APPARENT.  MOREOVER, AS TO THE THREAT OF
DISCLOSURE OF NAMES TO THE CIVIL SERVICE COMMISSION, THE COURT OF
APPEALS HAS ALREADY GRANTED INTERIM RELIEF.  ON THESE FACTS, I AM
RELUCTANT TO UPSET THE JUDGMENT OF THE COURT OF APPEALS.  /3/ 

AS NOTED ABOVE, THE GOVERNMENT HAS STATED THAT IT HAS NOT AUTHORIZED
ANY DISRUPTIVE ACTIVITY AT THE CONVENTION.  IN ADDITION, THE GOVERNMENT
HAS REPRESENTED THAT IT HAS NO INTENTION OF TRANSMITTING ANY
INFORMATION OBTAINED AT THE CONVENTION TO NONGOVERNMENTAL ENTITIES SUCH
AS SCHOOLS OR EMPLOYERS.  I SHALL HOLD THE GOVERNMENT TO BOTH
REPRESENTATIONS AS A CONDITION OF THIS ORDER.  ACCORDINGLY, THE
APPLICATION TO STAY THE ORDER OF THE COURT OF APPEALS AND TO REINSTATE
THE INJUNCTION ENTERED BY THE DISTRICT COURT IS

              DENIED. 

/1/  APPLICANTS OBJECT TO THE COURT OF APPEALS' TREATMENT OF THE
CASE AS AN APPEAL, AFTER INITIALLY SETTING IT AS A MOTION FOR A STAY. 
WHEN THE TIME IS AS SHORT AS IT WAS IN THIS CASE, OF COURSE, THE
DIFFERENCE BETWEEN THE TWO IS VERY SLIGHT.  THE COURT'S DETERMINATION
THAT THE DISTRICT COURT ABUSED ITS DISCRETION IN ORDERING THE
INJUNCTION WOULD APPEAR TO MEET THE STANDARD OF REVIEW FOR EITHER A
STAY OR THE REVERSAL OF PRELIMINARY INJUNCTION. 

/2/ APPLICANTS ARGUE THAT THIS ADMISSION, MADE AFTER THE DISTRICT
COURT'S DECISION, SIGNIFICANTLY ALTERS THE BALANCE OF THE EQUITIES IN
THIS CASE.  HOWEVER, THE GOVERNMENT HAS REPRESENTED THAT NO FBI AGENTS
WILL ATTEND THE CONVENTION AND THAT THE INFORMANTS WHO ARE MEMBERS OF
THE YSA WILL PARTICIPATE IN THE CONVENTION ONLY IN A MANNER CONSISTENT
WITH THEIR PREVIOUS ROLES IN THE ORGANIZATION.  THE GOVERNMENT ASSURED
BOTH THE COURT OF APPEALS AND ME THAT THE FBI HAS AUTHORIZED NO
DISRUPTIVE ACTIVITY AT THE YSA CONVENTION.  TO REQUIRE INFORMANTS WHO
MAY BE ACTIVE MEMBERS OF THE ORGANIZATION TO REMAIN SILENT THROUGHOUT
THE CONVENTION WOULD RENDER THEM AS READILY IDENTIFIABLE IN SOME CASES
AS AN ORDER EXCLUDING THEM. 

/3/  THIS IS ESPECIALLY TRUE WHERE, AS HERE, THE MATTER BEFORE ME
INVOLVES A PRELIMINARY INJUNCTION GRANTED WITHOUT A FULL HEARING ON THE
MERITS.  MUCH OF THE INFORMATION BEFORE ME IS IN DISPUTE.  THE DENIAL
OF THE STAY IN THIS CASE IN NO WAY AFFECTS THE OUTCOME OF THE CASE ON
MERITS, WHICH WAS FILED IN 1973 AND IS STILL PENDING IN THE DISTRICT
COURT. 
..END :




SCHICK V. REED, 419 U.S. 256 


       SCHICK V. REED, CHAIRMAN, UNITED STATES BOARD OF PAROLE, ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 73 - 5677.  ARGUED OCTOBER 23, 1974--DECIDED DECEMBER

           23, 1974; 157 U.S.APP.D.C. 263, 483 F.2D 1266,

           AFFIRMED. 


    PETITIONER, SENTENCED TO DEATH, UNDER ART. 118 OF THE UNIFORM

  CODE OF MILITARY JUSTICE, BY A COURT-MARTIAL FOR MURDER, ATTACKED

  THE VALIDITY OF A PRESIDENTIAL COMMUTATION TO LIFE IMPRISONMENT

  (UNDER WHICH PETITIONER HAD SERVED 20 YEARS) CONDITIONED ON

  PETITIONER'S NEVER BEING PAROLED.  THE DISTRICT COURT GRANTED

  RESPONDENTS' MOTION FOR SUMMARY JUDGMENT.  THE COURT OF APPEALS

  AFFIRMED, ADDITIONALLY REJECTING PETITIONER'S CONTENTION THAT

  THIS COURT'S INTERVENING DECISION IN FURMAN V. GEORGIA, 408 U.S.

238, REQUIRED THAT PETITIONER BE RESENTENCED TO A LIFE TERM WITH

  THE POSSIBILITY OF PAROLE, THE ALTERNATIVE PUNISHMENT FOR MURDER

  UNDER ART. 118.  HELD:  THE CONDITIONAL COMMUTATION OF

  PETITIONER'S DEATH SENTENCE WAS WITHIN THE PRESIDENT'S POWERS

  UNDER ART. II, 2, CL. 1, OF THE CONSTITUTION TO "GRANT REPRIEVES

  AND PARDONS FOR OFFENSES AGAINST THE UNITED STATES."  PP. 260 -

  268. 

     (A) THE EXECUTIVE PARDONING POWER UNDER THE CONSTITUTION,
WHICH

 HAS CONSISTENTLY ADHERED TO THE ENGLISH COMMON-LAW PRACTICE,

  HISTORICALLY INCLUDED THE POWER TO COMMUTE SENTENCES ON

  CONDITIONS NOT SPECIFICALLY AUTHORIZED BY STATUTE.  UNITED STATES

  V. WILSON, 7 PET. 150; EX PARTE WELLS, 18 HOW.  307.  PP. 260 -

  266. 

     (B) SINCE THE PARDONING POWER DERIVES FROM THE CONSTITUTION

  ALONE, IT CANNOT BE MODIFIED, ABRIDGED, OR DIMINISHED BY ANY

  STATUTE, INCLUDING ART. 118, AND FURMAN V. GEORGIA, SUPRA, DID

  NOT AFFECT THE CONDITIONAL COMMUTATION OF PETITIONER'S SENTENCE. 

  PP. 266 - 268. 

     BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  STEWART, WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 

  MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND

  BRENNAN, JJ., JOINED, POST, P. 268. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

IN 1960, THE PRESIDENT, ACTING UNDER THE AUTHORITY OF ART. II, 2,
CL. 1, OF THE CONSTITUTION, COMMUTED PETITIONER MAURICE L. SCHICK'S
SENTENCE FROM DEATH TO LIFE IMPRISONMENT, SUBJECT TO THE CONDITION THAT
HE WOULD NOT THEREAFTER BE ELIGIBLE FOR PAROLE.  THE PETITIONER
CHALLENGES THE VALIDITY OF THE CONDITION, AND WE GRANTED CERTIORARI TO
DETERMINE THE ENFORCEABILITY OF THAT COMMUTATION AS SO CONDITIONED. 

THE PERTINENT FACTS ARE UNDISPUTED.  IN 1954 PETITIONER, THEN A
MASTER SERGEANT IN THE UNITED STATES ARMY STATIONED IN JAPAN, WAS TRIED
BEFORE A COURT-MARTIAL FOR THE BRUTAL MURDER OF AN EIGHT-YEAR-OLD
GIRL.  HE ADMITTED THE KILLING, BUT CONTENDED THAT HE WAS INSANE AT THE
TIME THAT HE COMMITTED IT.  MEDICAL OPINION DIFFERED ON THIS POINT. 
DEFENSE EXPERTS TESTIFIED THAT PETITIONER COULD NEITHER DISTINGUISH
BETWEEN RIGHT AND WRONG NOR ADHERE TO THE RIGHT WHEN HE KILLED THE
GIRL; A BOARD OF PSYCHIATRISTS TESTIFYING ON BEHALF OF THE PROSECUTION
CONCLUDED THAT PETITIONER WAS SUFFERING FROM A NONPSYCHOTIC BEHAVIOR
DISORDER AND WAS MENTALLY AWARE OF AND ABLE TO CONTROL HIS ACTIONS. 
THE COURT-MARTIAL REJECTED PETITIONER'S DEFENSE AND HE WAS SENTENCED TO
DEATH ON MARCH 27, 1954, PURSUANT TO ART. 118 OF THE UNIFORM CODE OF
MILITARY JUSTICE, 10 U.S.C. 918.  THE CONVICTION AND SENTENCE WERE
AFFIRMED BY AN ARMY BOARD OF REVIEW AND, FOLLOWING A REMAND FOR
CONSIDERATION OF ADDITIONAL PSYCHIATRIC REPORTS, BY THE COURT OF
MILITARY APPEALS.  7 U.S.C.M.A. 419, 22 C.M.R. 209 (1956). 

THE CASE WAS THEN FORWARDED TO PRESIDENT EISENHOWER FOR FINAL REVIEW
AS REQUIRED BY ART. 71(A) OF THE UCMJ, 10 U.S.C. 871(A).  THE PRESIDENT
ACTED ON MARCH 25, 1960: 

"(PURSUANT TO THE AUTHORITY VESTED IN ME AS PRESIDENT OF THE UNITED
STATES BY ARTICLE II, SECTION 2, CLAUSE 1, OF THE CONSTITUTION, THE
SENTENCE TO BE PUT TO DEATH IS HEREBY COMMUTED TO DISHONORABLE
DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES BECOMING DUE ON AND
AFTER THE DATE OF THIS ACTION, AND CONFINEMENT AT HARD LABOR FOR THE
TERM OF HIS (PETITIONER'S) NATURAL LIFE.  THIS COMMUTATION OF SENTENCE
IS EXPRESSLY MADE ON THE CONDITION THAT THE SAID MAURICE L. SCHICK
SHALL NEVER HAVE ANY RIGHTS, PRIVILEGES, CLAIMS, OR BENEFITS ARISING
UNDER THE PAROLE AND SUSPENSION OR REMISSION OF SENTENCE LAWS OF THE
UNITED STATES AND THE REGULATIONS PROMULGATED THEREUNDER GOVERNING
FEDERAL PRISONERS CONFINED IN ANY CIVILIAN OR MILITARY PENAL
INSTITUTION (18 U.S.C. 4201 ET SEQ., 10 U.S.C. 3662 ET SEQ., 10 U.S.C.
871, 874), OR ANY ACTS AMENDATORY OR SUPPLEMENTARY THEREOF."  APP. 35. 
THE ACTION OF THE PRESIDENT SUBSTITUTED A LIFE SENTENCE FOR THE DEATH
SENTENCE IMPOSED IN 1954, SUBJECT TO THE CONDITIONS DESCRIBED IN THE
COMMUTATION.  PETITIONERS WAS ACCORDINGLY DESCRIBED IN THE
COMMUTATION.  PETITIONER WAS ACCORDINGLY DISCHARGED FROM THE ARMY AND
TRANSFERRED TO THE FEDERAL PENITENTIARY AT LEWISBURG, PA.  HE HAS NOW
SERVED 20 YEARS OF HIS SENTENCE.  HAD HE ORIGINALLY RECEIVED A SENTENCE
OF LIFE IMPRISONMENT HE WOULD HAVE BEEN ELIGIBLE FOR PAROLE
CONSIDERATION IN MARCH 1969; THE CONDITION IN THE PRESIDENT'S ORDER OF
COMMUTATION BARRED PAROLE AT ANY TIME. 

IN 1971, WHILE APPEALS CHALLENGING THE VALIDITY OF THE DEATH PENALTY
WERE PENDING IN THIS COURT, PETITIONER FILED SUIT IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TO REQUIRE THE MEMBERS OF
THE UNITED STATES BOARD OF PAROLE TO CONSIDER HIM FOR PAROLE.  THE
DISTRICT COURT GRANTED THE BOARD OF PAROLE'S MOTION FOR SUMMARY
JUDGMENT AND THE COURT OF APPEALS AFFIRMED, UNANIMOUSLY UPHOLDING THE
PRESIDENT'S POWER TO COMMUTE A SENTENCE UPON CONDITION THAT THE
PETITIONER NOT BE PAROLED.  IN ADDITION, IT REJECTED BY A 2 - 1 VOTE
PETITIONER'S ARGUMENT THAT FURMAN V. GEORGIA, 408 U.S. 238, DECIDED ON
JUNE 29, 1972, REQUIRES THAT HE BE RESENTENCED TO A SIMPLE LIFE TERM,
THE ALTERNATIVE PUNISHMENT FOR MURDER UNDER ART. 118.  157 U.S.APP.D.C.
263, 483 F.2D 1266.  WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

        I 

WHEN THE DEATH SENTENCE WAS IMPOSED IN 1954 IT WAS, AS PETITIONER
CONCEDES, VALID UNDER THE CONSTITUTION OF THE UNITED STATES AND SUBJECT
ONLY TO FINAL ACTION BY THE PRESIDENT.  ABSENT THE COMMUTATION OF MARCH
25, 1960, THE SENTENCE COULD, AND IN ALL PROBABILITY WOULD, HAVE BEEN
CARRIED OUT PRIOR TO 1972.  ONLY THE PRESIDENT'S ACTION IN COMMUTING
THE SENTENCE UNDER HIS ART. II POWERS, ON THE CONDITIONS STIPULATED,
PREVENTED EXECUTION OF THE SENTENCE IMPOSED BY THE COURT-MARTIAL. 

THE ESSENCE OF PETITIONER'S CASE IS THAT, IN LIGHT OF THIS COURT'S
HOLDING IN FURMAN V. GEORGIA, SUPRA, WHICH HE COULD NOT ANTICIPATE, HE
MADE A "BAD BARGAIN" BY ACCEPTING A NO-PAROLE CONDITION IN PLACE OF A
DEATH SENTENCE.  HE DOES NOT CAST HIS CLAIM IN THOSE TERMS, OF COURSE. 
RATHER, HE ARGUES THAT THE CONDITIONS ATTACHED TO THE COMMUTATION PUT
HIM IN A WORSE POSITION THAT HE WOULD HAVE BEEN IN HAD HE CONTESTED HIS
DEATH SENTENCE--AND REMAINED ALIVE--UNTIL THE FURMAN CASE WAS DECIDED
18 YEARS AFTER THAT SENTENCE WAS ORIGINALLY IMPOSED. 

IT IS CORRECT THAT PENDING DEATH SENTENCES NOT CARRIED OUT PRIOR TO
FURMAN WERE THEREBY SET ASIDE WITHOUT CONDITIONS SUCH AS WERE ATTACHED
TO PETITIONER'S COMMUTATION.  HOWEVER, PETITIONER'S DEATH SENTENCE WAS
NOT PENDING IN 1972 BECAUSE IT HAD LONG SINCE BEEN COMMUTED.  THE
QUESTION HERE IS WHETHER FURMAN MUST NOW BE READ AS NULLIFYING THE
CONDITION ATTAC ED TO THAT COMMUTATION WHEN IT WAS GRANTED IN 1960. 
ALTERNATIVELY, PETITIONER ARGUES THAT EVEN IN 1960 PRESIDENT EISENHOWER
EXCEEDED HIS POWERS UNDER ART. II BY IMPOSING A CONDITION NOT EXPRESSLY
AUTHORIZED BY THE UNIFORM CODE OF MILITARY JUSTICE. 

IN SUM, PETITIONER'S CLAIM GIVES RISE TO THREE QUESTIONS:  FIRST,
WAS THE CONDITIONAL COMMUTATION OF HIS DEATH SENTENCE LAWFUL IN 1960;
SECOND, IF SO, DID FURMAN RETROACTIVITY VOID SUCH CONDITIONS; AND
THIRD, DOES THAT CASE APPLY TO DEATH SENTENCES IMPOSED BY MILITARY
COURTS WHERE THE ASSERTED VAGARIES OF JURIES ARE NOT PRESENT AS IN
OTHER CRIMINAL CASES.  OUR DISPOSITION OF THE CASE WILL MAKE IT
UNNECESSARY TO REACH THE THIRD QUESTION. 

        II 

THE EXPRESS POWER OF ART. II, 2, CL. 1, FROM WHICH THE PRESIDENTIAL
POWER TO COMMUTE CRIMINAL SENTENCES DERIVES, IS TO "GRANT REPRIEVES AND
PARDONS . . . EXCEPT IN CASES OF IMPEACHMENT."  ALTHOUGH THE AUTHORS OF
THIS CLAUSE SURELY DID NOT ACT THOUGHTLESSLY, NEITHER DID THEY DEVOTE
EXTENDED DEBATE TO ITS MEANING.  THIS CAN BE EXPLAINED IN LARGE PART BY
THE FACT THAT THE DRAFTSMEN WERE WELL ACQUAINTED WITH THE ENGLISH CROWN
AUTHORITY TO ALTER AND REDUCE PUNISHMENTS AS IT EXISTED IN 1787.  THE
HISTORY OF THAT POWER, WHICH WAS CENTURIES OLD, REVEALS A GRADUAL
CONTRACTION TO AVOID ITS ABUSE AND MISUSE.  /1/  CHANGES WERE MADE AS
POTENTIAL OR ACTUAL ABUSES WERE PERCEIVED; FOR EXAMPLE, PARLIAMENT
RESTRICTED THE POWER TO GRANT A PARDON TO ONE WHO TRANSPORTED A
PRISONER OVERSEAS TO EVADE THE HABEAS CORPUS ACT, BECAUSE TO ALLOW SUCH
PARDONS WOULD DRAIN THE GREAT WRIT OF ITS VITALITY.  THERE WERE OTHER
LIMITS, BUT THEY WERE FEW IN NUMBER AND SIMILARLY SPECIFICALLY
DEFINED.  /2/ 

AT THE TIME OF DRAFTING AND ADOPTION OF OUR CONSTITUTION IT WAS
CONSIDERED ELEMENTARY THAT THE PREROGATIVE OF THE ENGLISH CROWN COULD
BE EXERCISED UPON CONDITIONS: 

"IT SEEMS AGREED, THAT THE KING MAY EXTEND HIS MERCY ON WHAT TERMS
HE PLEASES, AND CONSEQUENTLY MAY ANNEX TO HIS PARDON ANY CONDITION THAT
HE THINKS FIT, WHETHER PRECEDENT OR SUBSEQUENT, ON THE PERFORMANCE
WHEREOF THE VALIDITY OF THE PARDON WILL DEPEND."  2 W. HAWKINS, PLEAS
OF THE CROWN 557 (6TH ED. 1787). 

VARIOUS TYPES OF CONDITIONS, BOTH PENAL AND NOMPENAL IN NATURE, WERE
EMPLOYED.  /3/  FOR EXAMPLE, IT WAS COMMON FOR A PARDON OR COMMUTATION
TO BE GRANTED ON CONDITION THAT THE FELON BE TRANSPORTED TO ANOTHER
PLACE, AND INDEED OUR OWN COLONIES WERE THE RECIPIENTS OF NUMEROUS
SUBJECTS OF "BANISHMENT."  THIS PRACTICE WAS NEVER QUESTIONED DESPITE
THE FACT THAT BRITISH SUBJECTS GENERALLY COULD NOT BE FORCED TO LEAVE
THE REALM WITHOUT AN ACT OF PARLIAMENT AND BANISHMENT WAS RARELY
AUTHORIZED AS A PUNISHMENT FOR CRIME.  THE IDEA LATER DEVELOPED THAT
THE SUBJECT'S CONSENT TO TRANSPORTATION WAS NECESSARY, BUT IN MOST
CASES HE WAS SIMPLE "AGREEING" THAT HIS LIFE SHOULD BE SPARED.  THUS,
THE REQUIREMENT OF CONSENT WAS A LEGAL FICTION AT BEST; IN REALITY, BY
GRANTING PARDONS OR COMMUTATIONS CONDITIONAL UPON BANISHMENT, THE CROWN
WAS EXERCISING A POWER THAT WAS THE EQUIVALENT AND COMPLETELY
INDEPENDENT OF LEGISLATIVE AUTHORIZATION.  /4/  11 W. HOLDSWORTH,
HISTORY OF ENGLISH LAW 569 - 575 (1938).  IN SHORT, BY 1787 THE ENGLISH
PREROGATIVE TO PARDON WAS UNFETTERED EXCEPT FOR A FEW SPECIFICALLY
ENUMERATED LIMITATIONS. 

THE HISTORY OF OUR EXECUTIVE PARDONING POWER REVEALS A CONSISTENT
PATTERN OF ADHERENCE TO THE ENGLISH COMMON-LAW PRACTICE.  THE RECORDS
OF THE CONSTITUTIONAL CONVENTION, AS NOTED EARLIER, REVEAL LITTLE
DISCUSSION OR DEBATE ON 2, CL. 1, OF ART. II.  THE FIRST REPORT OF THE
COMMITTEE ON DETAIL PROPOSED THAT THE PERTINENT CLAUSE READ:  "HE (THE
PRESIDENT) SHALL HAVE POWER TO GRANT REPRIEVES AND PARDONS; BUT HIS
PARDON SHALL NOT BE PLEADABLE IN BAR OF AN IMPEACHMENT."  /5/  THIS
LIMITATION AS TO IMPEACHMENTS TRACKED A SIMILAR RESTRICTION UPON THE
ENGLISH ROYAL PREROGATIVE WHICH EXISTED IN 1787.  4 W. BLACKSTONE,
COMMENTARIES *399 - 400.  AN EFFORT WAS MADE IN THE CONVENTION TO AMEND
WHAT FINALLY EMERGED AS 2, CL. 1, AND IS REFLECTED IN JAMES MADISON'S
JOURNAL FOR AUGUST 25, 1787, WHERE THE FOLLOWING NOTE APPEARS: 

     "MR. SHERMAN MOVED TO AMEND THE 'POWER TO GRANT REPRIEVES AND

  PARDONS' SO AS TO READ 'TO GRANT REPRIEVES UNTIL THE NEXT SESSION

  OF THE SENATE, AND PARDONS WITH CONSENT OF THE SENATE.'"  2 M.

  FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, P. 419

  (1911). 

THE PROPOSED AMENDMENT WAS REJECTED BY A VOTE OF 8 - 1.  IBID.  THIS
ACTION CONFIRMS THAT, AS IN ENGLAND IN 1787, THE PARDONING POWER WAS
INTENDED TO BE GENERALLY FREE FROM LEGISLATIVE CONTROL. 

LATER EDMUND RANDOLPH PROPOSED TO ADD THE WORDS "'EXCEPT CASES OF
TREASON.'"  MADISON'S DESCRIPTION OF RANDOLPH'S ARGUMENT REFLECTS
FAMILIARITY WITH THE ENGLISH FORM AND PRACTICE:  "THE PREROGATIVE OF
PARDON IN THESE (TREASON) CASES WAS TOO GREAT A TRUST" ID., AT 626. 
RANDOLPH'S PROPOSAL WAS REJECTED BY A VOTE OF 8 - 2, AND THE CLAUSE WAS
ADOPTED IN ITS PRESENT FORM.  THEREAFTER, HAMILTON'S FEDERALIST NO. 69
SUMMARIZED THE PROPOSED 2 POWERS, INCLUDING THE POWER TO PARDON, AS
"RESEMBLING) EQUALLY THAT OF THE KING OF GREAT-BRITAIN AND THE GOVERNOR
OF NEW-YORK."  THE FEDERALIST NO. 69, P. 464 (J. COOKE ED. 1961).  /6/ 

WE SEE THEREFORE, THAT THE DRAFTSMEN OF ART. II, 2, SPOKE IN TERMS
OF A "PREROGATIVE"  OF THE PRESIDENT, WHICH OUGHT NOT BE "FETTERED OR
EMBARRASSED."  IN LIGHT OF THE ENGLISH COMMON LAW FROM WHICH SUCH
LANGUAGE WAS DRAWN, THE CONCLUSION IS INESCAPABLE THAT THE PARDONING
POWER WAS INTENDED TO INCLUDE THE POWER TO COMMUTE SENTENCES ON
CONDITIONS WHICH DO NOT IN THEMSELVES OFFEND THE CONSTITUION, BUT WHICH
ARE NOT SPECIFICALLY PROVIDED FOR BY STATUTE. 

THE FEW CASES DECIDED IN THIS AREA ARE CONSISTENT WITH THE VIEW OF
THE POWER DESCRIBED ABOVE.  IN UNITED STATES V. WILSON, 7 PET. 150
(1833), THIS COURT WAS CONFRONTED WITH THE QUESTION OF WHETHER A PARDON
MUST BE PLEADED IN ORDER TO BE EFFECTIVE.  MR. CHIEF JUSTICE MARSHALL
HELD FOR THE COURT THAT IT MUST, BECAUSE THAT WAS THE ENGLISH COMMON
LAW PRACTICE: 

     "AS THIS POWER HAD BEEN EXERCISED FROM TIME IMMEMORIAL BY THE

  EXECUTIVE OF THAT NATION WHOSE LANGUAGE IS OUR LANGUAGE, AND TO

  WHOSE JUDICIAL INSTITUTIONS OURS BEAR A CLOSE RESEMBLANCE; WE

  ADOPT THEIR PRINCIPLES RESPECTING THE OPERATION AND EFFECT OF A

  PARDON, AND LOOK INTO THEIR BOOKS FOR THE RULES PRESCRIBING THE

  MANNER IN WHICH IT IS TO BE USED BY THE PERSON WHO WOULD AVAIL

  HIMSELF OF IT."  ID., AT 160. 

SIMILARLY, IN EX PARTE WELLS, 18 HOW.  307 (1856), THE PETITIONER
HAD BEEN CONVICTED OF MURDER AND SENTENCED TO BE HANGED.  PRESIDENT
FILLMORE GRANTED A PARDON "'UPON CONDITION THAT HE BE IMPRISONED DURING
HIS NATURAL LIFE; THAT IS, THE SENTENCE OF DEATH IS HEREBY COMMUTED TO
IMPRISONMENT FOR LIFE IN THE PENITENTIARY OF WASHINGTON.'"  ID., AT
308.  LATER, WELLS SOUGHT RELEASE BY HABEAS CORPUS, CONTENDING THAT THE
CONDITION ANNEXED TO THE PARDON AND ACCEPTED BY HIM WAS ILLEGAL.  HIS
ARGUMENT WAS REMARKABLY SIMILAR TO THAT MADE BY PETITIONER HERE: 

"(A) PRESIDENT GRANTING SUCH A PARDON ASSUMES A POWER NOT CONFERRED
BY THE CONSTITUTION--THAT HE LEGISLATES A NEW PUNISHMENT INTO
EXISTENCE, AND SENTENCES THE CONVICT TO SUFFER IT; IN THIS WAY
VIOLATING THE LEGISLATIVE AND JUDICIAL POWERS OF THE GOVERNMENT, IT
BEING THE PROVINCE OF THE FIRST, TO ENACT LAWS FOR THE PUNISHMENT OF
OFFENSES . . ., AND THAT OF THE JUDICIARY, TO SENTENCE . . . ACCORDING
TO THEM."  ID., AT 309. 

HOWEVER, THE COURT WAS NOT PERSUADED.  AFTER AN EXTENSIVE REVIEW OF
THE ENGLISH COMMON LAW AND THAT OF THE STATES, WHICH NEED NOT BE
REPEATED HERE, IT CONCLUDED: 

"THE REAL LANGUAGE OF (ART. II, 2, CL. 1) IS GENERAL, THAT IS,
COMMON TO THE CLASS OF PARDONS, OR EXTENDING THE POWER TO PARDON TO ALL
KINDS OF PARDONS KNOWN IN THE LAW AS SUCH, WHATEVER MAY BE THEIR
DENOMINATION.  WE HAVE SHOWN THAT A CONDITIONAL PARDON IS ONE OF THEM. 
. . . 

     "IN THIS VIEW OF THE CONSTITUTION, BY GIVING TO ITS WORDS
THEIR

  PROPER MEANING, THE POWER TO PARDON CONDITIONALLY IS NOT ONE OF

  INFERENCE AT ALL, BUT ONE CONFERRED IN TERMS. 

        .          .          .          . 

    ". . . (THE POWER TO OFFER A CONDITION, WITHOUT ABILITY TO

  ENFORCE ITS ACCEPTANCE, WHEN ACCEPTED BY THE CONVICT, IS THE

  SUBSTITUTION, BY HIMSELF, OF A LESSER PUNISHMENT THAN THE LAW HAS

  IMPOSED UPON HIM, AND HE CANNOT COMPLAIN IF THE LAW EXECUTES THE

  CHOICE HE HAS MADE. 

"'. . . AND A MAN CONDEMNED TO BE HUNG CANNOT BE PERMITTED TO

  ESCAPE THE PUNISHMENT ALTOGETHER, BY PLEADING THAT HE HAD

  ACCEPTED HIS LIFE BY DURESS PER MINAS.'"  ID., AT 314 - 315. 

IN OTHER WORDS, THIS COURT HAS LONG READ THE CONSTITUTION AS
AUTHORIZING THE PRESIDENT TO DEAL WITH INDIVIDUAL CASES BY GRANTING
CONDITIONAL PARDONS.  THE VERY ESSENCE OF THE PARDONING POWER IS TO
TREAT EACH CASE INDIVIDUALLY. 

THE TEACHINGS OF WILSON AND WELLS HAVE BEEN FOLLOWED CONSISTENTLY BY
THIS COURT.  SEE, E.G., EX PARTE GROSSMAN, 267 U.S. 87 (1925)
(UPHOLDING A PRESIDENTIAL PARDON OF A CONTEMPT OF COURT AGAINST AN
ARGUMENT THAT IT VIOLATED THE PRINCIPLE OF SEPARATION OF POWERS); EX
PARTE GARLAND, 4 WALL.  333 (1867).  ADDITIONALLY, WE NOTE THAT
PRESIDENTS THROUGHOUT OUR HISTORY AS A NATION HAVE EXERCISED THE POWER
TO PARDON OR COMMUTE SENTENCES UPON CONDITIONS THAT ARE NOT
SPECIFICALLY AUTHORIZED BY STATUTE.  SUCH CONDITIONS HAVE GENERALLY
GONE UNCHALLENGED AND, AS IN THE WELLS CASE, ATTACKS HAVE BEEN FIRMLY
REJECTED BY THE COURTS.  SEE 41 OP.ATTY.GEN.  251 (1955).  THESE FACTS
ARE NOT INSIGNIFICANT FOR OUR INTERPRETATION OF ART. II, 2, CL. 1,
BECAUSE, AS OBSERVED BY MR. JUSTICE HOLMES:  "IF A THING HAS BEEN
PRACTICED FOR TWO HUNDRED YEARS BY COMMON CONSENT, IT WILL NEED A
STRONG CASE" TO OVERTURN IT.  JACKMAN V. ROSENBAUM CO., 260 U.S. 22, 31
(1922). 

      III 

A FAIR READING OF THE HISTORY OF THE ENGLISH PARDONING POWER, FROM
WHICH OUR ART. II, 2, CL. 1, DERIVES, OF THE LANGUAGE OF THAT CLAUSE
ITSELF, AND OF THE UNBROKEN PRACTICE SINCE 1790 COMPELS THE CONCLUSION
THAT THE POWER FLOWS FROM THE CONSTITUTION ALONE, NOT FROM ANY
LEGISLATIVE ENACTMENTS, AND THAT IT CANNOT BE MODIFIED, ABRIDGED, OR
DIMINISHED BY THE CONGRESS.  ADDITIONALLY, CONSIDERATIONS OF PUBLIC
POLICY AND HUMANITARIAN IMPULSES SUPPORT AN INTERPRETATION OF THAT
POWER SO AS TO PERMIT THE ATTACHMENT OF ANY CONDITION WHICH DOES NOT
OTHERWISE OFFEND THE CONSTITUTION.  THE PLAIN PURPOSE OF THE BROAD
POWER CONFERRED BY 2, CL. 1, WAS TO ALLOW PLENARY AUTHORITY IN THE
PRESIDENT TO "FORGIVE" THE CONVICTED PERSON IN PART OR ENTIRELY, TO
REDUCE A PENALTY IN TERMS OF A SPECIFIED NUMBER OF YEARS, OR TO ALTER
IT WITH CONDITIONS WHICH ARE IN THEMSELVES CONSTITUTIONALLY
UNOBJECTIONABLE.  IF WE WERE TO ACCEPT PETITIONER'S CONTENTIONS, A
COMMUTATION OF HIS DEATH SENTENCE TO 25 OR 30 YEARS WOULD BE SUBJECT TO
THE SAME CHALLENGE AS IS NOW MADE, I.E., THAT PAROLE MUST BE AVAILABLE
TO PETITIONER BECAUSE IT IS TO OTHERS.  THAT SUCH AN INTERPRETATION OF
2, CL. 1, WOULD IN ALL PROBABILITY TEND TO INHIBIT THE EXERCISE OF THE
PARDONING POWER AND REDUCE THE FREQUENCY OF COMMUTATIONS IS HARDLY OPEN
TO DOUBT.  WE THEREFORE HOLD THAT THE PARDONING POWER IS AN ENUMERATED
POWER OF THE CONSTITUTIONA AND ITS LIMITATIONS, IF ANY, MUST BE FOUND
IN THE CONSTITUTION ITSELF.  IT WOULD BE A CURIOUS LOGIC TO ALLOW A
CONVICTED PERSON WHO PETITIONS FOR MERCY TO RETAIN THE FULL BENEFIT OF
A LESSER PUNISHMENT WITH CONDITIONS, YET ESCAPE BURDENS READILY ASSUMED
IN ACCEPTING THE COMMUTATION WHICH HE SOUGHT. 

PETITIONER'S CLAIM MUST THEREFORE FAIL.  THE NO-PAROLE CONDITION
ATTACHED TO THE COMMUTATION OF HIS DEATH SENTENCE IS SIMILAR TO
SANCTIONS IMPOSED BY LEGISLATURES SUCH AS MANDATORY MINIMUM SENTENCES
OR STATUTES OTHERWISE PRECLUDING PAROLE; /7/  IT DOES NOT OFFEND THE
CONSTITUTION.  SIMILARLY, THE PRESIDENT'S ACTION DERIVED SOLELY FROM
HIS ART. II POWERS; IT DID NOT DEPEND UPON ART. 118 OF THE UCMJ OR ANY
OTHER STATUTE FIXING A DEATH PENALTY FOR MURDER.  IT IS NOT CORRECT TO
SAY THAT THE CONDITION UPON PETITIONER'S COMMUTATION WAS "MADE POSSIBLE
ONLY THROUGH THE COURT-MARTIAL'S IMPOSITION OF THE DEATH SENTENCE." 
POST, AT 269 - 270.  OF COURSE, THE PRESIDENT MAY NOT AGGRAVATE
PUNISHMENT; THE SENTENCE IMPOSED BY STATUTE IS THEREFORE RELEVANT TO A
LIMITED EXTENT.  BUT, AS SHOWN, THE PRESIDENT HAS CONSTITUTIONAL POWER
TO ATTACH, CONDITIONS TO HIS COMMUTATION OF ANY SENTENCE.  THUS, EVEN
IF FURMAN V. GEORGIA APPLIES TO THE MILITARY, A MATTER WHICH WE NEED
NOT AND DO NOT DECIDE, IT COULD NOT AFFECT A CONDITIONAL COMMUTATION
WHICH WAS GRANTED 12 YEARS EARLIER. 

WE HARE NOT MOVED BY PETITIONER'S ARGUMENT THAT IT IS SOMEHOW
"UNFAIR" THAT HE BE TREATED DIFFERENTLY FROM PERSONS WHOSE DEATH
SENTENCES WERE PENDING AT THE TIME THAT FURMAN WAS DECIDED.  INDIVIDUAL
ACTS OF ELEMENCY INHERENTLY CALL FOR DISCRIMINATING CHOICES BECAUSE NO
TWO CASES ARE THE SAME.  INDEED, AS NOTED EARLIER, PETITIONER'S LIFE
WAS UNDOUBTEDLY SPARED BY PRESIDENT EISENHOWER'S COMMUTATION ORDER OF
MARCH 25, 1960.  NOR IS PETITIONER WITHOUT FURTHER REMEDIES SINCE HE
MAY, OF COURSE, APPLY TO THE PRESENT OR FUTURE PRESIDENTS FOR A
COMPLETE PARDON, COMMUTATION TO TIME SERVED, OR RELIEF FROM THE NO
PAROLE CONDITION.  WE HOLD ONLY THAT THE CONDITIONAL COMMUTATION OF HIS
DEATH SENTENCE WAS LAWFUL WHEN MADE AND THAT INTERVENING EVENTS HAVE
NOT ALTERED ITS VALIDITY. 

AFFIRMED. 

/1/  SEE GENERALLY 6 W. HOLDSWORTH, HISTORY OF ENGLISH LAW 203
(1938). 

/2/  SEE 3 E. COKE, INSTITUTES 233 (6TH ED. 1680); 5 J. COMYNS,
DIGEST OF THE LAWS OF ENGLAND 230 (5TH ED. 1822); J. CHITTY,
OREROGATIVES OF THE CROWN 90 - 91 (1820); 4 W. BLACKSTONE, COMMENTARIES
*398. 

/3/  TYPICAL CONDITIONS WERE THAT THE FELON BE CONFINED AT HARD
LABOR FOR A STATED PERIOD OF TIME, 4 BLACKSTONE, SUPRA, N. 2, AT *401,
OR THAT HE SERVE IN THE ARMED FORCES.  2 D. HUME, CRIMES 481 (2D ED.
1819). 

/4/  IN EX PARTE WELLS, 18 HOW.  307 (1856), THIS COURT EXPRESSED
THE VIEW THAT LEGISLATIVE AUTHORIZATION WAS ESSENTIAL TO THE USE OF
BANISHMENT FROM THE REALM AS A COMMUTABLE PUNISHMENT BY THE ENGLISH
CROWN.  ID., AT 313.  HOWEVER, THAT CONCLUSION WAS NO MORE THAN DICTUM
AND IS HISTORICALLY INCORRECT.  INDEED, ABOUT THE TIME THAT WELLS WAS
DECIDED PARLIAMENT ABOLISHED BANISHMENT AS A PENALTY IN ENGLAND, BUT
THE CROWN RETAINED AND CONTINUED TO EXERCISE THE POWER TO ANNEX SUCH
CONDITIONS TO PARDONS.  11 HOLDSWORTH, SUPRA, N. 1, AT 575. 

/5/  2 M. FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, P. 185
(1911). 

/6/  IN THE FEDERALIST NO. 74 HAMILTON ENLARGED ON THIS POINT: 

"HUMANITY AND GOOD POLICY CONSPIRE TO DICTATE, THAT THE BENIGN
PREROGATIVE OF PARDONING SHOULD BE AS LITTLE AS POSSIBLE FETTERED OR
EMBARRASSED.  THE CRIMINAL CODE OF EVERY COUNTRY PARTAKES SO MUCH OF
NECESSARY SEVERITY, THAT WITHOUT AN EASY ACCESS TO EXCEPTIONS IN FAVOR
OF UNFORTUNATE GUILT, JUSTICE WOULD WEAR A COUNTENANCE TOO SANGUINARY
AND CRUEL.  AS THE SENSE OF RESPONSIBILITY IS ALWAYS STRONGEST IN
PROPORTION AS IT IS UNDIVIDED, IT MAY BE INFERRED THAT A SINGLE MAN
WOULD BE MOST READY TO ATTEND TO THE FORCE OF THOSE MOTIVES, WHICH
MIGHT PLEAD FOR A MITIGATION OF THE RIGOR OF THE LAW, AND LEAST APT TO
YIELD TO CONSIDERATIONS, WHICH WERE CALCULATED TO SHELTER A FIT OBJECT
OF ITS VENGEANCE.  THE REFLECTION, THAT THE FATE OF A FELLOW CREATURE
DEPENDED ON HIS SOLE FIAT, WOULD NATURALLY INSPIRE SCRUPULOUSNESS AND
CAUTION:  THE DREAD OF BEING ACCUSED OF WEAKNESS OR CONNIVANCE WOULD
BEGET EQUAL CIRCUMSPECTION, THOUGH OF A DIFFERENT KIND."  THE
FEDERALIST NO. 74, PP. 500 - 501 (J. COOKE ED. 1961). 

/7/  SEE, E.G., 21 U.S.C. 848(C); MASS. GEN. LAWS ANN., C. 265, 2
(1970); NEV. REV. STAT., TIT. 16, C. 200.030, 6, C. 200,363, 1(A)
(1973). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

THE COURT TODAY DENIES PETITIONER RELIEF FROM THE NO-PAROLE
CONDITION OF HIS COMMUTED DEATH SENTENCE, PAYING ONLY LIP SERVICE TO
OUR INTERVENING DECISION IN FURMAN V. GEORGIA, 408 U.S. 238 (1972). 
BECAUSE I BELIEVE THE RETROSPECTIVE APPLICATION OF FURMAN REQUIRES US
TO VACATE PETITIONER'S SENTENCE AND SUBSTITUTE THE ONLY LAWFUL
ALTERNATIVE--LIFE WITH THE OPPORTUNITY FOR PAROLE, I RESPECTFULLY
DISSENT. 

        I 

THE COURT MISCONSTRUES PETITIONER'S RETROACTIVITY ARGUMENT.  SCHICK
DOES NOT DISPUTE THE CONSTITUTIONAL VALIDITY OF THE DEATH PENALTY IN
1954 UNDER THEN-EXISTING CASE LAW.  NOR DOES HE CONTEND THAT HE WAS
UNDER SENTENCE OF DEATH /1/  IN 1972 WHEN THE DECISION ISSUED IN
FURMAN, INVALIDATING "THE IMPOSITION AND CARRYING OUT"  OF
DISCRETIONARY DEATH SENTENCES.  ID., AT 239.  RATHER, HE ARGUES THAT
THE RETROACTIVE APPLICATION OF FURMAN TO HIS NO-PAROLE COMMUTATION IS
REQUIRED BECAUSE THE IMPOSITION OF THE DEATH SENTENCE WAS THE
INDISPENSABLE VEHICLE THROUGH WHICH HE BECAME SUBJECT TO HIS PRESENT
SENTENCE.  IN OTHER WORDS, THE NO-PAROLE CONDITION COULD NOT NOW EXIST
HAD THE COURT-MARTIAL BEFORE WHICH SCHICK WAS TRIED NOT IMPOSED THE
DEATH PENALTY. 

THE RELATIONSHIP BETWEEN THE DEATH SENTENCE AND THE CONDITION IS
CLEAR.  ARTICLE 118 OF THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ) /2/
AUTHORIZES ONLY TWO SENTENCES FOR THE CRIME OF PREMEDITATED MURDER:
DEATH OR LIFE IMPRISONMENT WHICH ENTAILS AT LEAST THE POSSIBILITY OF
PAROLE.  CONFINEMENT WITHOUT POSSIBILITY OF PAROLE IS UNKNOWN TO
MILITARY LAW; /3/  IT IS NOT AND HAS NEVER BEEN AUTHORIZED FOR ANY UCMJ
OFFENSE, 10 U.S.C. 877 - 934; MANUAL FOR COURTS-MARTIAL, 34 FED.REG. 
10502 (1969).  IN SHORT, THE PENAL RESTRICTION OF THE COMMUTATION WAS A
CREATURE OF PRESIDENTIAL CLEMENCY MADE POSSIBLE ONLY THROUGH THE COURT
MARTIAL'S IMPOSITION OF THE DEATH SENTENCE. 

THE RETROACTIVITY OF FURMAN IS EQUALLY UNCLOUDED.  THE COURT "(HAS)
NOT HESITATED"  TO GIVE FULL RETROACTIVE EFFECT TO THE FURMAN
DECISION.  ROBINSON V. NEIL, 409 U.S. 505, 508 (1973).  SEE STEWART V.
MASSACHUSETTS, 408 U.S. 845 (1972); MARKS V. LOUISIANA, 408 U.S. 933
(1972); WALKER V. GEORGIA, 408 U.S. 936 (1972).  THE PER CURIAM
DECISION STRUCK DOWN BOTH "THE IMPOSITION AND THE CARRYING OUT" OF
DISCRETIONARY DEATH SENTENCES AS CRUEL AND UNUSUAL PUNISHMENT IN
VIOLATION OF THE EIGHTH AMENDMENT.  408 U.S.,AT 239.  THE OPINION
SPECIFICALLY HELD THAT THE "JUDGMENT . . . IS . . . REVERSED INSOFAR AS
IT LEAVES UNDISTURBED THE DEATH SENTENCE IMPOSED.  . . ."  ID., AT
240.  THE RETROACTIVE APPLICATION OF FURMAN RESULTS IN MORE THAN THE
SIMPLE ENJOINING OF EXECUTION; IT NULLIFIES THE VERY ACT OF
SENTENCING.  IN EFFECT A POST-FURMAN COURT MUST ENSURE A PRISONER THE
SAME TREATMENT THAT HE WOULD HAVE BEEN AFFORDED HAD THE DEATH PENALTY
NOT BEEN IMPOSED INITIALLY.  /4/ 

THE FULL RETROACTIVITY OF A CONSTITUTIONAL RULING IS AIMED AT THE
ERADICATION OF ALL ADVERSE CONSEQUENCES OF PRIOR VIOLATIONS OF THAT
RULE.  WE HAVE RECOGNIZED THE IMPORTANCE OF ERASING "ROOT AND BRANCH"
THE ADVERSE LEGAL CONSEQUENCES, BOTH DIRECT AND INDIRECT, OF PRIOR
CONSTITUTIONAL VIOLATIONS.  SEE, E.G., MCCONNELL V. RHAY, 393 U.S. 2, 3
(1968); LINKLETTER V. WALKER, 381 U.S. 618, 639 (1965).  THE EFFECTIVE
OPERATION OF THIS PROCEDURE WAS DEMONSTRATED IN THE DECISIONS ON THE
RIGHT TO COUNSEL IN STATE FELONY TRIALS.  SEE PICKELSIMER V.
WAINWRIGHT, 375 U.S. 2 (1963); KITCHENS V. SMITH, 401 U.S. 847 (1971);
BURGETT V. TEXAS, 389 U.S. 109 (1967); UNITED STATES V. TUCKER, 404
U.S. 443 (1972). 

SINCE FURMAN IS FULLY RETROACTIVE PETITIONER'S CASE SHOULD BE SIMPLE
TO RESOLVE.  THE TERMS ART. 118 OF THE UCMJ PROVIDE THAT A PERSON
CONVICTED OF PREMEDITATED MURDER "SHALL SUFFER DEATH OR IMPRISONMENT
FOR LIFE AS A COURT-MARTIAL MAY DIRECT."  A DEATH SENTENCE WAS IMPOSED
BY THE COURT-MARTIAL AND AFFIRMED BY THE BOARD OF REVIEW AND THE UNITED
STATES COURT OF MILITARY APPEALS, 7 U.S.C.M.A. 419, 22 C.M.R. 209
(1956).  THE DEATH SENTENCE SO IMPOSED WAS DECLARED UNCONSTITUTIONAL BY
FURMAN AND IS THEREFORE NULL AND VOID AS A MATTER OF LAW.  THE ONLY
LEGAL ALTERNATIVE--SIMPLE LIFE IMPRISONMENT--MUST BE SUBSTITUTED. 
CONCOMITANTLY, THE ADVERSE CONSEQUENCE OF THE DEATH SENTENCE--THE NO
PAROLE CONDITION OF PETITIONER'S 1960 COMMUTATION--MUST ALSO BE VOIDED,
AS IT EXCEEDS THE LAWFUL ALTERNATIVE PUNISHMENT THAT SHOULD HAVE BEEN
IMPOSED.  PETITIONER SHOULD NOW BE SUBJECT TO TREATMENT AS A PERSON
SENTENCED TO LIFE IMPRISONMENT ON THE DATE OF HIS ORIGINAL SENTENCE AND
ELIGIBLE FOR PAROLE.  /5/ 

THE COURT TODAY SUGGESTS THAT PETITIONER CANNOT CLAIM ANY BENEFIT
FROM FURMAN BECAUSE NO DEATH PENALTY WAS PENDING AGAINST HIM AT THE
TIME OF THE DECISION.  THE 1960 COMMUTATION IS TOUTED AS THE PANACEA
FOR THE CONSTITUTIONAL DEFECTS OF PETITIONER'S ORIGINAL SENTENCE. 
UNFORTUNATELY, SUCH IS NOT THE CASE. 

THE IMPOSITION OF THE DEATH SENTENCE WAS THE INDISPENSABLE VEHICLE
THROUGH WHICH PETITIONER BECAME SUBJECT TO HIS PRESENT SENTENCE.  THE
COMMUTATION OF THE SENTENCE DID NOT CURE THE CONSTITUTIONAL
DISABILITIES OF THE PUNISHMENT.  A NOTED EXPERT ON THE SUBJECT OF
PRESIDENTIAL CLEMENCY STATES:     "UNLIKE A PARDON, A COMMUTATION DOES
NOT ABSOLVE THE BENEFICIARY FROM MOST OF THE LEGAL CONSEQUENCES OF AN
OFFENSE."  /6/ ALTHOUGH PETITIONER IS NOT UNDER DIRECT THREAT OF THE
DEATH SENTENCE, "HE HAS SUFFERED AND CONTINUES TO SUFFER ENHANCED
PUNISHMENT--THE LOSS OF HIS STATUTORY RIGHT TO BE CONSIDERED FOR PAROLE
-AS A RESULT OF AN ILLEGALLY IMPOSED DEATH SENTENCE."  /7/  FROM FURMAN
FULL RETROSPECTIVE APPLICATION OF FURMAN REQUIRES THE ERADICATION OF
THIS VESTIGE OF THE PRIOR CONSTITUTIONAL VIOLATION.  IF PETITIONER HAD
BEEN GRANTED STAYS OF EXECUTION UNTIL FURMAN WAS DECIDED, THERE IS NO
DOUBT THAT HIS SENTENCE WOULD HAVE TO BE VACATED AND A LIFE SENTENCE
IMPOSED INSTEAD.  THE SITUATION SHOULD BE NO DIFFERENT SIMPLY BECAUSE
THE CHIEF EXECUTIVE COMMUTED HIS SENTENCE--IN EFFECT GRANTING A
PERMANENT STAY OF EXECUTION.  NULLIFICATION OF THE NO-PAROLE PROVISION
WOULD RELIEVE PETITIONER OF THIS UNCONSTITUTIONAL BURDEN AND CLEAR THE
WAY FOR LAWFUL RESENTENCING WITH ELIGIBILITY FOR PAROLE. 

    II 

SINCE THE MAJORITY DEVOTES ITS OPINION TO A DISCUSSION OF THE SCOPE
OF PRESIDENTIAL POWER, I AM COMPELLED TO COMMENT.  I HAVE NO QUARREL
WITH THE PROPOSITION THAT THE SOURCE OF THE PRESIDENT'S COMMUTATION
POWER IS FOUND IN ART. II, 2, CL. 1, OF THE CONSTITUTION, WHICH
AUTHORIZES THE PRESIDENT TO GRANT REPRIEVES AND PARDONS FOR OFFENSES
AGAINST THE UNITED STATES EXCEPT FOR CASES OF IMPEACHMENT.  BIDDLE V.
PEROVICH, 274 U.S. 480 (1927).  COMMUTATION IS DEFINED AS THE
SUBSTITUTION OF A LESSER TYPE OF PUNISHMENT FOR THE PUNISHMENT ACTUALLY
IMPOSED AT TRIAL.  /8/ 

THE ISSUE HERE IS WHETHER THE PRESIDENT'S EXPANSION OF AN
UNENCUMBERED LIFE TERM BY ADDITION OF A CONDITION PROSCRIBING SCHICK'S
ELIGIBILITY FOR PAROLE WENT BEYOND THE AUTHORITY CONFERRED BY ART. II.
ARTICLE 118 OF THE UCMJ AND THE IMPLEMENTING COURT-MARTIAL REGULATIONS
PRESCRIBE MANDATORY ADJUDICATION OF EITHER DEATH OR LIFE IMPRISONMENT
FOR THE CRIME OF PREMEDITATED MURDER.  10 U.S.C. 918; 34 FED.REG. 
10704.  I TAKE ISSUE WITH THE COURT'S CONCLUSION THAT ANNEXATION OF THE
"NO-PAROLE CONDITION . . . DOES NOT OFFEND THE CONSTITUTION."  ANTE, AT
267.  IN MY VIEW THE PRESIDENT'S ACTION EXCEEDED THE LIMITS OF THE ART.
II PARDON POWER.  IN COMMUTING A SENTENCE THE CHIEF EXECUTIVE IS NOT
EMBUED WITH THE CONSTITUTIONAL POWER TO CREATE UNAUTHORIZED
PUNISHMENTS. 

THE CONGRESSIONALLY PRESCRIBED PARAMETERS OF PUNISHMENT MARK THE
BOUNDARIES WITHIN WHICH THE EXECUTIVE MUST EXERCISE HIS AUTHORITY.  /9/
BY VIRTUE OF THE PARDON POWER THE EXECUTIVE MAY ABSTAIN FROM ENFORCING
A JUDGMENT BY JUDICIAL AUTHORITIES; HE MAY NOT, UNDER THE AEGIS OF THAT
POWER, ENGAGE IN LAWMKAING OR ADJUDICATION.  CF. UNITED STATES V. BENZ,
282 U.S. 304, 311 (1931) (AN ACT OF CLEMENCY IS AN EXERCISE OF
EXECUTIVE POWER WHICH ABRIDGES THE ENFORCEMENT OF THE JUDGMENT, BUT
DOES NOT ALTER IT QUA JUDGMENT); UNITED STATES EX REL. BRAZIER V.
COMMISSIONER OF IMMIGRATION, 5 F.2D 162 (CA2 1924) (PARDON POWER DOES
NOT EMBRACE RIGHT TO BAR CONGRESSIONALLY PRESCRIBED DEPORTATION OF
PRISONERS). 

WHILE THE CLEMENCY FUNCTION OF THE EXECUTIVE IN THE FEDERAL CRIMINAL
JUSTICE SYSTEM /10/  IS CONSISTENT WITH THE SEPARATION OF POWERS, THE
ATTACHMENT OF PUNITIVE CONDITIONS TO GRANTS OF CLEMENCY IS NOT. 
PRESCRIBING PUNISHMENT IS A PREROGATIVE RESERVED FOR THE LAWMAKING
BRANCH OF GOVERNMENT, THE LEGISLATURE.  AS A CONSEQUENCE, PRESIDENT
EISENHOWER'S ADDITION TO SCHICK'S COMMUTATION OF A CONDITION THAT DID
NOT COINCIDE WITH PUNISHMENT PRESCRIBED BY THE LEGISLATURE FOR ANY
MILITARY CRIME, /11/  MUCH LESS THIS SPECIFIC OFFENSE, WAS A USURPATION
OF A LEGISLATIVE FUNCTION.  WHILE THE EXERCISE OF THE PARDON POWER WAS
PROPER, THE IMPOSITION OF THIS PENAL CONDITION WAS NOT EMBRACED BY THAT
POWER.  /12/ 

THE COURT TODAY ADVANCES THE ANTECEDENT ENGLISH PARDON POWER AND
PRIOR HOLDINGS OF THIS COURT IN SUPPORT OF THE LEGALITY OF THE NO
PAROLE CONDITION.  NEITHER BODY OF LAW HAS ESTABLISHED AN EXECUTIVE
RIGHT TO DEFINE EXTRA-LEGISLATIVE PUNISHMENTS.  /13/  NOR DOES THE
HISTORICAL STATUS OF THE PARDON POWER IN ENGLAND OR ANALYSIS OF PRIOR
NON-PENAL CONDITIONS SUPPLY ANY RELEVANCE HERE. 

        A 

THE ENGLISH ANNALS OFFER DUBIOUS SUPPORT TO THE COURT.  THE MAJORITY
OPINION RECOUNTS IN COPIOUS DETAIL THE HISTORICAL EVOLUTION OF THE
PARDON POWER IN ENGLAND.  ANTE, AT 260 - 262.  SEE ALSO EX PARTE WELLS,
18 HOW.  307, 309 - 313 (1856).  THE REFERENCES TO ENGLISH STATUTES AND
CASES ARE NO MORE THAN DICTUM; AS THE COURT ITSELF ADMONISHES, "THE
(PARDON) POWER FLOWS FROM THE CONSTITUTION ALONE."  ANTE, AT 266. 
ACCORDINGLY, THE PRIMARY RESOURCE FOR ANALYZING THE SCOPE OF ART. II IS
OUR OWN REPUBLICAN SYSTEM OF GOVERNMENT.  SEE GROSJEAN V. AMERICAN
PRESS CO., 297 U.S. 233, 248 - 249 (1936).  THE SEPARATION OF POWERS
DOCTRINE DOES NOT VEST THE CHIEF EXECUTIVE WITH AN UNRESTRAINED
CLEMENCY POWER, SUPRA, AT 274 - 275, BUT VIEWS HIS FUNCTIONS AS
DISTINCT FROM THE OTHER COORDINATE BRANCHES.  ANTE, AT 262 - 264.  THE
REFERENCE TO THE EARLY AMERICAN EXPERIENCE ARE NOT DISPOSITIVE.  /14/ 

INDEED, HISTORY RECOUNTS THAT EVEN THE PARDON POWER OF THE KING TO
"ANNEX (A CONDITION) TO HIS BOUNTY" WAS SUBJECT TO STATUTORY
LIMITATION.  4 W. BLACKSTONE, COMMENTARIES *401.  AS NOTED IN THE WELLS
CASE: 

  "THE SOVEREIGN OF ENGLAND, WITH ALL THE PREROGATIVES OF THE

  CROWN, IN GRANTING A CONDITIONAL PARDON, CANNOT SUBSTITUTE A

  PUNISHMENT WHICH THE LAW DOES NOT AUTHORIZE."  18 HOW.,AT 323

  (MCLEAN, J., DISSENTING). 

EVEN THE AUTHORITY QUOTED BY BLACKSTONE IN SUPPORT OF THE PROPOSITION,
2 W. HAWKINS, PLEAS OF THE CROWN 547 (8TH ED. 1824), DOES NOT ACTUALLY
SUPPORT THE SUGGESTION OF UNLIMITED POWER IN THE KING.  IN FACT, THE
CONDITIONS DISCUSSED WERE EITHER IMPOSED PURSUANT TO STATUTE OR OF A
NONPUNITIVE NATURE.  SEE COLES CASE, MOORE K. B. 466, 72 ENG.REP.  700
(1597); E. COKE, A COMMENTARY UPON LITTLETON 274B (19TH ED. 1832).  THE
COURT ACKNOWLEDGES INSTANCES IN WHICH STATUTORY AUTHORITY PLACED
RESTRICTIONS ON THE MONARCH'S POWER.  ANTE, AT 260.  THE CRITICAL ROLE
OF STATUTES IN THE IMPOSITION OF THE CONDITION OF BANISHMENT ON PARDONS
OF CONVICTED FELONS WAS RECOGNIZED IN A LETTER ADDRESSED TO A MEMBER OF
THE HOUSE OF LORDS: 

     "THERE IS HARDLY ANYTHING TO BE FOUND RESPECTING CONDITIONAL

  PARDONS IN THE OLD ENGLISH LAW-BOOKS; BUT THE AUTHORITY OF THE

  CROWN TO GRANT A CONDITIONAL PARDON IN CAPITAL CASES IS . . .

  RECOGNIZED IN STATUTE 5 GEO. 4, C. 84, S. 2.  . . ."  W. FORSYTH,

  CASES AND OPINIONS ON CONSTITUTIONAL LAW 460 (1869). 

THE KING'S PREROGATIVE WAS THUS NOT AS BROAD AS THE MAJORITY'S
READING OF BLACKSTONE INDICATES.  THE GREAT DISCRETION AVAILABLE TO THE
KING TO DISPENSE MERCY DID NOT INCORPORATE INTO THE PARDONING POWER THE
ROYAL RIGHT TO INVADE THE LEGISLATIVE PROVINCE OF ASSESSING
PUNISHMENTS. 

        B 

CONTRARY TO THE COURT'S SUGGESTION, LIMITATION OF EXECUTIVE ACTION
TO THE STATUTORY FRAMEWORK IS NOT UNDERMINED BY EARLIER DECISIONS OF
THIS COURT.  IN BIDDLE V. PEROVICH, 274 U.S. 480, 483 (1927), THE
SOLICITOR GENERAL EXPRESSLY NOTED THAT "(A) COMMUTATION IS THE
SUBSTITUTION OF A MILDER PUNISHMENT KNOWN TO THE LAW FOR THE ONE
INFLICTED BY THE COURT."  MR. JUSTICE HOLMES, WRITING FOR A UNANIMOUS
COURT, CONCLUDED ON A RELATED MATTER THAT CONSENT TO COMMUTATION WAS
UNNECESSARY SINCE "(BY COMMON UNDERSTANDING IMPRISONMENT FOR LIFE IS A
LESS PENALTY THAN DEATH."  ID., AT 487.  THE COURT HELD THAT THE "ONLY
QUESTION IS WHETHER THE SUBSTITUTED PUNISHMENT WAS AUTHORIZED BY LAW. 
. . ."  IBID.  WHILE HOLMES' SPECIFIC REFERENCE IS TO THE LAW OF THE
CONSTITUTION, HE THEN PROCEEDS WITH A DISCUSSION OF THE STATUTORY
SANCTIONS.  COMMUTATION TO LIFE IMPRISONMENT WITHOUT ANY OPPORTUNITY
FOR PAROLE WOULD PENALIZE THE PRISONER HERE BEYOND THE TERMS OF THE
UCMJ SANCTIONS. 

THE REQUIREMENT THAT THE SUBSTITUTED SENTENCE BE ONE PROVIDED BY LAW
IS NOT HAMPERED BY EX PARTE WELLS, SUPRA, IN WHICH THIS COURT UPHELD
CONDITIONAL COMMUTATION FROM A DEATH SENTENCE TO A SIMPLE LIFE TERM. 
THE VALIDITY OF MITIGATION OF A SENTENCE WITHOUT DEPRIVING THE PRISONER
OF ANY ADDITIONAL RIGHTS IS NOT INCONSISTENT WITH REJECTION OF
UNAUTHORIZED PENAL CONDITIONS.  IN WELLS THE COURT ACKNOWLEDGED THAT
LIMITATIONS ON THE PARDON POWER MANDATED ITS EXERCISE "ACCORDING TO
LAW; THAT IS, AS IT HAD BEEN USED IN ENGLAND, AND THESE STATES."  18
HOW.,AT 310.  ALTHOUGH THE WELLS COURT WAS NOT FACED WITH THE QUESTION
WHETHER ALL POSSIBLE CONDITIONS WERE IN THE AMBIT OF ART. II, IT
ADDRESSED THE SPECIFIC LIMITATION ON PENAL CONDITIONS ATTACHED TO
COMMUTATIONS: 

"SO, CONDITIONAL PARDONS BY THE KING DO NOT PERMIT TRANSPORTATION OR
EXILE AS A COMMUTABLE PUNISHMENT, UNLESS THE SAME HAS BEEN PROVIDED FOR
BY LEGISLATION."  ID., AT 313.  THE REMAINING CASES ON WHICH THE COURT
RELIES TO SUSTAIN THE CONDITION OFFER MINIMAL SUPPORT AND ARE EASILY
DISTINGUISHED.  /15/ 

IN CONCLUSION I NOTE THAT WHERE A PRESIDENT CHOOSES TO EXERCISE HIS
CLEMENCY POWER HE SHOULD BE MINDFUL THAT 

"THE PUNISHMENT APPROPRIATE FOR THE DIVERSE FEDERAL OFFENSES IS

  A MATTER FOR THE DISCRETION OF CONGRESS, SUBJECT ONLY TO

  CONSTITUTIONAL LIMITATIONS, MORE PARTICULARLY THE EIGHTH

  AMENDMENT."  BELL V. UNITED STATES, 349 U.S. 81, 82 (1955). 

SEE EX PARTE UNITED STATES, 242 U.S. 27, 42 (1916).  THE CONGRESS HAS
NOT DELEGATED SUCH AUTHORITY TO THE PRESIDENT.  I DO NOT CHALLENGE THE
RIGHT OF THE PRESIDENT TO ISSUE PARDONS ON NONPENAL CONDITIONS, BUT,
WHERE THE EXECUTIVE ELECTS TO EXERCISE THE PRESIDENTIAL POWER FOR
COMMUTATION THE CLEAR IMPORT OF THE CONSTITUTION MANDATES THAT 

IN SUM, THE NO-PAROLE CONDITION IS CONSTITUTIONALLY DEFECTIVE IN THE
FACE OF THE RETROSPECTIVE APPLICATION OF FURMAN AND THE EXTRA-LEGAL
NATURE OF THE EXECUTIVE ACTION.  I WOULD NULLIFY THE CONDITION, AND
DIRECT THE LOWER COURT TO REMAND THE CASE FOR RESENTENCING TO THE ONLY
ALTERNATIVE AVAILABLE--LIFE WITH THE OPPORTUNITY FOR PAROLE--AND ITS
ATTENDANT BENEFITS. 

/1/  BUT SEE PART II, INFRA. 

/2/  ARTICLE 118, 10 U.S.C. 918, READS: 

"ANY PERSON SUBJECT TO THIS CODE WHO, WITHOUT JUSITIFICATION OR
EXCUSE, UNLAWFULLY KILLS A HUMAN BEING, WHEN HE-- 

"(1) HAS A PREMEDITATED DESIGN TO KILL;

        .          .          .  . "SHALL SUFFER DEATH OR
IMPRISONMENT FOR LIFE AS A COURT-MARTIAL MAY DIRECT." 

MAY 5, 1950, C. 169, 1, 64 STAT. 140. 

/3/  MILITARY PRISONERS INCARCERATED IN FEDERAL PENITENTIARIES ARE
GOVERNED BY THE SAME PAROLE STATUTES AND REGULATIONS APPLICABLE TO ALL
FEDERAL PRISONERS.  UNDER THE FEDERAL PAROLE ELGIBILITY STATUTE, 18
U.S.C. 4202 - 4203 (1970 ED. AND SUPP. II), PETITIONER, AN INMATE FOR
20 YEARS AT LEWISBURG, NOW HAS SATISFIED THE 15-YEAR PREREQUISITE FOR
PAROLE CONSIDERATION.  SEE 10 U.S.C. 858.  LIKEWISE, IF SCHICK HAD BEEN
CONFINED IN A MILITARY FACILITY HE WOULD NOW BE ELIGIBLE FOR PAROLE
UNDER 10 U.S.C. 952 - 953. 

/4/  WHERE ONLY ONE ALTERNATIVE PUNISHMENT IS AVAILABLE TO THE TRIAL
COURT, THAT PUNISHMENT HAS BEEN AUTOMATICALLY IMPOSED EITHER BY THE
APPELLATE COURT ITSELF, E.G., STATE V. JOHNSON, 31 OHIO ST.2D 106, 285
N.E.2D 751 (1972); COMMONWEALTH V. BRADLEY, 449 PA. 19, 295 A.2D 842
(1972); ANDERSON V. STATE, 267 SO.2D 8, 10 (FLA. 1972); OR BY THE TRIAL
JUDGE ON DIRECTION FROM THE APPELLATE COURT, E.G., CAPLER V. STATES,
268 SO.2D 338 (MISS.  1972); STATE V. SQUARE, 263 LA. 291, 268 SO.2D
229 (1972); GARCIA V. STATE, 501 P.2D 1128 (OKLA. CRIM. 1972). 

/5/  NOTHING IN FURMAN SUGGESTS THAT IT IS INAPPLICABLE TO THE
MILITARY.  THE PER CURIAM CARVES OUT NO EXCEPTIONS TO THE PROHIBITION
AGAINST DISCRETIONARY DEATH SENTENCES.  THE OPINIONS OF THE FIVE
MEMBERS MAJORITY RECOGNIZE NO BASIS FOR EXCLUDING THE MEMBERS OF THE
ARMED FORCES FROM PROTECTION AGAINST THIS FORM OF PUNISHMENT.  EVEN THE
LIST OF FOUR CAPITAL PUNISHMENT STATUTES NOT AFFECTED BY THE COURT'S
DECISION, PROVIDED BY MY BROTHER STEWART, DOES NOT INCLUDE THE FEDERAL
MILITARY STATUTES.  408 U.S. 238, 307 (1972).  EVEN MORE PERSUASIVE IS
THE LANGUAGE OF MY BROTHER POWELL IN DISSENT WHICH STATES THAT
"NUMEROUS PROVISIONS OF . . . THE UNIFORM CODE OF MILITARY JUSTICE ARE
ALSO VOIDED."  ID., AT 417 - 418. 

BEYOND THE LANGUAGE OF FURMAN THE COURT HAS MADE CLEAR IN TROP V.
DULLES, 356 U.S. 86 (1958), THAT THE EIGHTH AMENDMENT IS APPLICABLE TO
THE MILITARY.  WHILE THE COURT DIVIDED ON THE PENAL NATURE OF THE
STATUTE WHICH PROVIDED ADDITIONAL SANCTIONS FOR SERVICEMEN CONVICTED OF
WARTIME DESERTION, THERE WAS NO DISAGREEMENT ON THE APPLICATION OF THE
AMENDMENT. 

I WOULD ALSO NOTE THAT UCMJ, ENACTED IN 1950, HAS BE DECISION AND
PRACTICE INCORPORATED THE BILL OF RIGHTS AND AFFORDED ITS PROTECTION TO
THE MEMBERS OF THE ARMED FORCES.  SEE, E.G., UNITED STATES V. TEMPIA,
16 U.S.C.M.A. 629, 634, 37 C.M.R. 249, 254 (1967); UNITED STATES V.
JACOBY, 11 U.S.C.M.A. 428, 430 - 431, 29 C.M.R. 244, 246 - 247 (1960);
UNITED STATES V. JOBE, 10 U.S.C.M.A. 276, 279, 27 C.M.R. 350, 353
(1959). 

THE FACT THAT A COURT-MARTIAL RATHER THAN A JURY IMPOSES THE DEATH
SENTENCE IS IRRELEVANT.  IN MY VIEW THE PENALTY IS EQUALLY SEVERE, AND
IN MY VIEW EQUALLY OFFENSIVE TO THE EIGHTH AMENDMENT FOR THAT REASON,
SEE FURMAN V. GEORGIA, 408 U.S.,AT 314 - 374 (MARSHALL, J.,
CONCURRING).  MOREOVER, THE POTENTIAL FOR ABUSE AND DISCRIMINATION WITH
WHICH MY BRETHEN WERE CONCERNED IN FURMAN IS AS EVIDENT HERE AS IN THE
CIVILIAN COURTS. 

/6/ W. HUMBERT, THE PARDONING POWER OF THE PRESIDENT 27 (1941). 

/7/  157 U.S.APP.D.C. 263, 270, 483 F.2D 1266, 1273 (1973) (WRIGHT,
J., DISSENTING). 

/8/  ALTHOUGH PARDON AND COMMUTATION EMANATE FROM THE SAME SOURCE,
THEY REPRESENT CLEARLY DISTINCT FORMS OF CLEMENCY.  WHEREAS COMMUTATION
IS A SUBSTITUTION OF A MILDER FORM OF PUNISHMENT, PARDON IS AN ACT OF
PUBLIC CONSCIENCE THAT RELIEVES THE RECIPIENT OF ALL THE LEGAL
CONSEQUENCES OF THE CONVICTION.  SEE, E.G., UNITED STATES EX REL.
BRAZIER V. COMMISSIONER OF IMMIGRATION, 5 F.2D 162 (CA2 1924); CHAPMAN
V. SCOTT, 10 F.2D 156, 159 (CONN. 1925), AFF'D, 10 F.2D 690 (CA2),
CERT. DENIED, 270 U.S. 657 (1926); NOTE, EXECUTIVE CLEMENCY IN CAPITAL
CASES, 39 N.Y.U.L.REV.  136, 138 (1964); HUMBERT, SUPRA, N. 6, AT 27;
BLACK'S LAW DICTIONARY 351, 1268 - 1269 (4TH ED. 1968).     /9/
INDEED, MR. CHIEF JUSTICE MARSHALL EXPANDED ON THE NOTION OF SEPARATION
OF POWERS STATING:  "(THE POWER OF PUNISHMENT IS VESTED IN THE
LEGISLATIVE . . . DEPARTMENT.  IT IS THE LEGISLATURE . . . WHICH IS TO
DEFINE A CRIME, AND ORDAIN ITS PUNISHMENT."  UNITED STATES V.
WILTBERGER, 5 WHEAT.  76, 95 (1820). 

/10/  ARTICLE 71(A), 10 U.S.C. 871(A), OUTLINES THE PRESIDENTIAL
ROLE IN THE REVIEW OF MILITARY CONVICTIONS. 

WITH THE EXCEPTION OF PREMEDITATED MURDER AND FELONY MURDER THE UCMJ
AUTHORIZES PUNISHMENT AT THE DISCRETION OF THE COURT-MARTIAL.  THUS, IN
THE MAJORITY OF CASES THE PRESIDENT WOULD NOT BE LIMITED TO ONLY TWO
ALTERNATIVES BUT COULD COMMUTE TO ANY LESSER SENTENCE THAN THAT IMPOSED
BY THE COURT-MARTIAL CONSISTENT WITH THE STATUTORY AUTHORIZATION.  IT
IS ONLY IN THE FACT OF THE MANDATE OF ART. 118, LIMITING THE
ALTERNATIVES TO DEATH OR LIFE IMPRISONMENT WITH THE POSSIBILITY OF
PAROLE, THAT, THE RESTRICTION TO THE STATUTORY ALTERNATIVES MAY APPEAR
AT FIRST BLUSH UNDULY DRACONIAN. 

/11/  CONFINEMENT WITHOUT OPPORTUNITY FOR PAROLE IS UNKNOWN TO
MILITARY LAW.  10 U.S.C. 877 - 934; MANUAL FOR COURTS-MARTIAL, 34
FED.REG.  10502 (1969).  MOREOVER, THE ONLY FEDERAL-LAW RECOGNITION OF
THIS PUNISHMENT IN A CIVILIAN CONTEXT IS FOUND IN THE VERY LIMITED NO
PAROLE PROVISIONS DEALING WITH CONTINUING NARCOTICS ENTERPRISES.  21
U.S.C. 848.  GUIDED BY THE SPECIAL NATURE OF DRUG OFFENSES AND DRUG
OFFENDERS THE CONGRESS ENACTED THIS NARROW EXCEPTION TO UNIVERSAL
ELIGIBILITY FOR PAROLE.  SEE H. R. REP. NO. 2388, 84TH CONG., 2D SESS.,
4, 8, 11, 64 (1956). 

/12/  THE COURT CITES EX PARTE WELLS, 18 HOW.  307 (1856), AND AN
OPINION OF ATTORNEY GENERAL BROWNELL, 41 OP.ATTY.GEN.  251 (1955), IN
SUPPORT OF THE STATEMENT THAT "PRESDIENTS . . . HAVE (FREQUENTLY)
EXERCISED THE POWER TO PARDON OR COMMUTE SENTENCES UPON CONDITIONS THAT
ARE NOT SPECIFICALLY AUTHORIZED BY STATUTE."  ANTE, AT 266.  WELLS
INVOLVED THE SIMPLE SUBSTITUTION OF THE LESSER PENALTY OF LIFE
IMPRISONMENT FOR DEATH; NO SEPARATE PUNITIVE CONDITION WAS ATTACHED TO
THE EXECUTIVE ACTION.  A LEGAL OPINION FROM THE ATTORNEY GENERAL
SUPPLIES REASONED INTERPRETATIONS BUT HARDLY BEARS THE FORCE OF LAW. 

/13/  THE KING'S PARDON POWER, FROM WHICH THE PRESIDENT'S ART. II
POWER DERIVES, ALSO WAS SUBJECT HISTORICALLY TO STATUTORY LIMITATIONS. 
SEE EX PARTE WELLS, SUPRA, AT 312 - 313; ID., AT 322 (MCLEAN, J.,
DISSENTING). 

/14/  WITH FEW EXCEPTIONS CONDITIONAL PARDONS WERE NOT GRANTED BY
STATE GOVERNORS EXCEPT WHERE AUTHORIZED BY LAW, EX PARTE WELLS, SUPRA,
AT 322 (MCLEAN, J., DISSENTING).  THE COURT'S REFERENCES TO THE
FRAMERS' WRITINGS ON THE PARDON POWER FAIL TO TAKE ACCOUNT OF THE
SEPARATION OF POWERS DOCTRINE SO FERVENTLY EMBRACED BY THE
CONSTITUTIONAL DRAFTERS.  NATIONAL MUTUAL INS. CO. V. TIDEWATER
TRANSFER CO., 337 U.S. 582 (1949); THE FEDERALIST NO. 47 (J. MADISON)
(J. COOKE ED. 1961); E. CORWIN, THE PRESIDENT:  OFFICE AND POWERS 140
(1940).  IN FACT CORWIN NOTES: 

"(THE PRESIDENT IS NOT AUTHORIZED TO ADD TO SENTENCES IMPOSED BY THE
COURTS (PURSUANT TO LEGISLATIVE DIRECTION)--HE MAY ONLY MITIGATE THEM. 
. . ."  IBID. (EMPHASIS IN ORIGINAL). 

/15/  UNITED STATES V. WILSON, 7 PET. 150 (1833), TURNED ON THE
TECHNICAL QUESTION OF WHETHER A PARDON MUST BE PLEADED AND ONLY
REFERRED IN DICTUM TO THE POSSIBILITY THAT THE PRESIDENT COULD
CONDITION A PARDON.  IN EX PARTE GARLAND, 4 WALL.  333 (1867), AND EX
PARTE GROSSMAN, 267 U.S. 87 (1925), THE COURT FOCUSED ON THE
DISCRETIONARY ASPECT OF THE PARDON POWER WHICH IS HERE UNCHALLENGED. 
THE EMPHASIS WAS ON THE RIGHT OF THE PRESIDENT TO GRANT A PARDON TO ANY
CRIMINAL, FOR ANY OFFENSE, AT ANY TIME.  THE QUESTION OF CONDITIONAL
ACTION WAS RAISED IN ONLY A TANGENTIAL MANNER. 

/16/  THE COURT LIKENS THE NO-PAROLE CONDITION TO "SANCTIONS IMPOSED
BY LEGISLATURES SUCH AS MANDATORY MINIMUM SENTENCES.  . . ."  THE
SIMILARITY IS ALL TOO CLOSE, IN MY VIEW.  INDEED, IT IS PRECISELY
BECAUSE THE PRESIDENT HAS INVADED THE LEGISLATIVE DOMAIN THAT THE
CONDITION MUST FAIL. 

HOMER E. MOYER, JR., ARGUED THE CAUSE FOR PETITIONER PRO HAC VICE. 
WITH HIM ON THE BRIEFS WAS ROBERT N. SAYLER. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
PETERSEN, AND HARRY R. SACHSE. 
..END :















BOWMAN TRANSP. V. ARK.-BEST FREIGHT SYSTEM, 419 U.S. 281 


       BOWMAN TRANSPORTATION, INC. V. ARKANSAS-BEST FREIGHT SYSTEM,

           INC., ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

DISTRICT OF ARKANSAS

        NO. 73 - 1055.  ARGUED NOVEMBER 20, 1974--DECIDED DECEMBER

           23, 1974*

      *TOGETHER WITH NO. 73 - 1069, JOHNSON MOTOR LINES, INC. V.

           ARKANSAS-BEST FREIGHT SYSTEM, INC., ET AL.; NO. 73 -

           1070, RED BALL MOTOR FREIGHT, INC. V. ARKANSAS-BEST

           FREIGHT SYSTEM, INC., ET AL.; NO. 73 - 1071,

           LORCH-WESTWAY CORP. ET AL. V. ARKANSAS-BEST FREIGHT

           SYSTEM, INC., ET AL.; AND NO. 73 - 1072, UNITED STATES

           ET AL. V. ARKANSAS-BEST FREIGHT SYSTEM, INC., ET AL.,

           ALSO ON APPEAL TO THE SAME COURT. 

        364 F.SUPP.  1239, REVERSED AND REMANDED. 


    IN 1969 HEARING EXAMINERS FOR THE INTERSTATE COMMERCE

  COMMISSION (ICC), FOLLOWING HEARINGS IN 1966 AND 1967 AND THE

  SUBSEQUENT FILING OF EXTENSIVE BRIEFS, REJECTED APPELLANT MOTOR

  CARRIERS' APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND

  NECESSITY TO TRANSPORT GENERAL COMMODITIES BETWEEN SPECIFIED

  POINTS IN THE SOUTHWEST AND SOUTHEAST.  IN 1971 THE ICC, OVER THE

  OPPOSITION OF APPELLEE COMPETING MOTOR CARRIERS, AUTHORIZED THE

  ISSUANCE OF THE CERTIFICATES.  APPELLEES THEN BROUGHT ACTION IN

  THE DISTRICT COURT TO SET ASIDE THE ICC'S ORDER.  THE DISTRICT

  COURT REFUSED TO ENFORCE THE ORDER ON THE GROUND THAT THE ICC HAD

  ACTED ARBITRARILY IN REFUSING TO CREDIT CERTAIN EVIDENCE

  INTRODUCED BY APPELLEES.  HELD: 

     1.  THE DISTRICT COURT ERRED IN REFUSING TO ENFORCE THE ICC'S
ORDER.  PP. 284 - 294. 

     (A) UNDER THE "ARBITRARY AND CAPRICIOUS" STANDARD THE SCOPE OF

  REVIEW IS A NARROW ONE WHEREBY A REVIEWING COURT MUST "CONSIDER

  WHETHER THE DECISION WAS BASED ON A CONSIDERATION OF THE RELEVANT

  FACTORS AND WHETHER THERE HAS BEEN A CLEAR ERROR OF JUDGMENT,"

CITIZENS TO PRESERVE OVERTON PARK V. VOLPE, 401 U.S. 402, 416. 

  PP. 285 - 286. 

     (B) THE ICC'S OBSERVATION THAT APPELLEES' EXHIBITS AS TO THE

  ACCEPTABILITY OF THEIR EXISTING SERVICE COVERED PERIODS

  SUBSEQUENT TO THE ICC'S NOTICE OF HEARING SUPPORTED ITS REFUSAL

  TO CREDIT THIS EVIDENCE.  THE ICC WAS ENTITLED TO REGARD SUCH

  EXHIBITS AS NON-REPRESENTATIVE OF THE USUAL SERVICE, TO REASON

  THAT THE SHORTCOMINGS WERE GREATER THAN THE EXHIBITS SHOWED, AND

  TO CONCLUDE THAT SERVICE WOULD BE IMPROVED BY GRANTING THE

  APPLICATIONS.  PP. 286 - 289. 

     (C) THERE WAS A RATIONAL BASIS FOR THE ICC'S ATTRIBUTING
LITTLE

  SIGNIFICANCE TO APPELLEES' EXHIBITS SHOWING APPELLANTS' TRANSIT

TIMES OVER OTHER ROUTES.  THE QUESTION WAS WHETHER SERVICE ON THE

  ROUTES AT ISSUE WOULD BE ENHANCED BY NEW ENTRY AND, AS TO THIS,

  PERFORMANCE BY PROSPECTIVE ENTRANTS ON OTHER ROUTES WAS OF

  LIMITED RELEVANCE.  THE ICC ERRED IN NOT ATTRIBUTING THE SAME

  QUALIFICATION TO APPELLANTS'  TRANSIT TIME EXHIBITS, BUT ITS

  FINDING THAT SERVICE WOULD BE IMPROVED BY NEW ENTRY WAS SUPPORTED

  BY OTHER EVIDENCE.  PP. 289 - 292. 

     (D) THE ICC'S CONCLUSION THAT CONSUMER BENEFITS OF NEW ENTRY

  OUTWEIGHED ANY ADVERSE IMPACT UPON THE EXISTING CARRIERS REFLECTS

  THE KIND OF JUDGMENT THAT IS ENTRUSTED TO IT, NAMELY, THE POWER

  TO WEIGH THE COMPETING INTERESTS AND ARRIVE AT A BALANCE THAT IS

  DEEMED "THE PUBLIC CONVENIENCE AND NECESSITY."  PP. 292 - 294. 

     2.  THE LAPSE OF TIME BETWEEN THE CONCLUSION OF EVIDENTIARY

  HEARINGS AND THE ULTIMATE AGENCY DECISION IN THIS CASE DOES NOT

  JUSTIFY A REVIEWING COURT'S REQUIRING THAT THE RECORD BE

  REOPENED.  PP. 294 - 296. 

     3.  THE ICC WAS ENTITLED TO TAKE AN APPROACH, DIVERGENT FROM

THAT OF ITS EXAMINERS, FAVORING ADDED COMPETITION AMONG

CARRIERS.  PP. 297 - 299. 

     4.  WHETHER OR NOT THE CERTIFICATE GRANTED APPELLANT BOWMAN

  TRANSPORTATION CO. CONFORMED TO THE AUTHORITY SET FORTH IN ITS

  APPLICATION, AN ISSUE NOT BRIEFED OR ARGUED IN THIS COURT, SHOULD

  BE CONSIDERED BY THE DISTRICT COURT ON REMAND.  PP.  299 - 300. 

    DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL FROM A FINAL JUDGMENT OF A THREE-JUDGE
DISTRICT COURT, 28 U.S.C. 1253, 2101, INVALIDATING AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION.  TEN APPLICATIONS OF MOTOR CARRIERS TO
CONDUCT GENERAL COMMODITIES OPERATIONS BETWEEN POINTS IN THE SOUTHWEST
AND SOUTHEAST WERE CONSOLIDATED IN ONE PROCEEDING.  THREE ADDITIONAL
APPLICANTS WERE ALLOWED TO INTERVENE.  THE HEARING EXAMINERS, AFTER
EXTENSIVE HEARINGS, REJECTED EACH APPLICATION.  THE COMMISSION GRANTED
THREE OF THE APPLICATIONS OF APPELLANT CARRIERS.  APPELLEES, COMPETING
CARRIERS, BROUGHT AN ACTION IN THE DISTRICT COURT, 28 U.S.C. 1336, TO
SUSPEND, ENJOIN, AND ANNUL THAT PORTION OF THE ORDER OF THE COMMISSION
THAT AUTHORIZES ISSUANCE OF CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY TO RED BALL, BOWMAN, AND JOHNSON.  THE DISTRICT COURT REFUSED
TO ENFORCE THE COMMISSION'S ORDER BECAUSE ITS FINDINGS AND CONCLUSIONS
WERE ARBITRARY, CAPRICIOUS, AND WITHOUT RATIONAL BASIS WITHIN THE
MEANING OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 706, AND LIKEWISE
REFUSED TO REMAND THE CASE BELIEVING THAT NO USEFUL PURPOSE WOULD BE
SERVED, 364 F.SUPP.  1239, 1264.  /1/ 

THE ADMINISTRATIVE PROCEDURE ACT IN 5 U.S.C. 706 PROVIDES THAT: 

"THE REVIEWING COURT SHALL . . . (2) HOLD UNLAWFUL AND SET ASIDE
AGENCY ACTION, FINDINGS, AND CONCLUSIONS FOUND TO BE-- 

     "(A) ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, OR

  OTHERWISE NOT IN ACCORDANCE WITH LAW (OR) . . .

        .          .          .          . 

     "(E) UNSUPPORTED BY SUBSTANTIAL EVIDENCE.  . . ." 

THESE TWO PROVISIONS OF 5 U.S.C. 706(2) ARE PART OF SIX WHICH ARE
"SEPARATE STANDARDS."  SEE CITIZENS TO PRESERVE OVERTON PARK V. VOLPE,
401 U.S. 402, 413 (1971).  THE DISTRICT COURT PROPERLY CONCLUDED THAT,
THOUGH AN AGENCY'S FINDING MAY BE SUPPORTED BY SUBSTANTIAL EVIDENCE,
BASED ON THE DEFINITION IN UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474
(1951), /2/  IT MAY NONETHELESS REFLECT ARBITRARY AND CAPRICIOUS
ACTION.  THERE SEEMS, HOWEVER, TO BE AGREEMENT THAT THE FINDINGS AND
CONCLUSIONS OF THE COMMISSION ARE SUPPORTED BY SUBSTANTIAL EVIDENCE. 
THE QUESTION REMAINS WHETHER, AS THE DISTRICT COURT HELD, THE
COMMISSION'S ACTION WAS "ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION,
OR OTHERWISE NOT IN ACCORDANCE WITH LAW" AS PROVIDED IN 5 U.S.C.
706(2)(A).  WE DISAGREE WITH THE DISTRICT COURT AND ACCORDINGLY REVERSE
ITS JUDGMENT AND REMAND THE CASES FOR CONSIDERATION OF ONE ISSUE NOT
REACHED BY THE DISTRICT COURT OR BY THIS COURT. 

        I 

THE MOTOR CARRIER PROVISIONS OF THE INTERSTATE COMMERCE ACT, 49
STAT. 551, 49 U.S.C. 307, EMPOWER THE COMMISSION TO GRANT AN
APPLICATION FOR A CERTIFICATE IF IT FINDS (1) THAT THE APPLICANT IS
"FIT, WILLING, AND ABLE PROPERLY TO PERFORM THE SERVICE PROPOSED"; AND
(2) THAT THE SERVICE PROPOSED "IS OR WILL BE REQUIRED BY THE PRESENT OR
FUTURE PUBLIC CONVENIENCE AND NECESSITY."  THE COMMISSION MADE BOTH
FINDINGS, RELYING UPON THE APPLICANTS' GENERAL SERVICE RECORD IN
SUPPORT OF A FINDING OF FITNESS, AND UPON EXPRESSIONS OF CUSTOMER
DISSATISFACTION WITH THE EXISTING SERVICE IN SUPPORT OF ITS CONCLUSION
THAT THE SERVICE PROPOSED WAS CONSISTENT WITH THE PUBLIC CONVENIENCE
AND NECESSITY.  THE COMPETING APPELLEE CARRIERS MADE PRESENTATION
DESIGNED TO SHOW THAT THEIR EXISTING SERVICE WAS SATISFACTORY AND THAT
THE APPLICANTS WOULD NOT OFFER MEASURABLY SUPERIOR PERFORMANCE.  THE
DISTRICT COURT CONCLUDED THAT THE COMMISSION HAD ACTED ARBITRARILY IN
ITS TREATMENT OF THE PRESENTATION MADE BY THE PROTESTING CARRIERS. 
WHILE THE COMMISSION HAD ACKNOWLEDGED THE APPELLEES' EVIDENCE, ITS
REASONS FOR REFUSING TO CREDIT IT WOULD NOT, IN THE DISTRICT COURT'S
VIEW, WITHSTAND SCRUTINY, MAKING ITS ACTION TANTAMOUNT TO AN ARBITRARY
REFUSAL TO CONSIDER MATTERS IN THE RECORD. 

UNDER THE "ARBITRARY AND CAPRICIOUS" STANDARD THE SCOPE OF REVIEW IS
A NARROW ONE.  A REVIEWING COURT MUST "CONSIDER WHETHER THE DECISION
WAS BASED ON A CONSIDERATION OF THE RELEVANT FACTORS AND WHETHER THERE
HAS BEEN A CLEAR ERROR OF JUDGMENT.  . . . ALTHOUGH THIS INQUIRY INTO
THE FACTS IS TO BE SEARCHING AND CAREFUL, THE ULTIMATE STANDARD OF
REVIEW IS A NARROW ONE.  THE COURT IS NOT EMPOWERED TO SUBSTITUTE ITS
JUDGMENT FOR THAT OF THE AGENCY."  CITIZENS TO PRESERVE OVERTON PARK V.
VOLPE, SUPRA, AT 416.  THE AGENCY MUST ARTICULATE A "RATIONAL
CONNECTION BETWEEN THE FACTS FOUND AND THE CHOICE MADE."  BURLINGTON
TRUCK LINES V. UNITED STATES, 371 U.S. 156, 168 (1962).  WHILE WE MAY
NOT SUPPLY A REASONED BASIS FOR THE AGENCY'S ACTION THAT THE AGENCY
ITSELF HAS NOT GIVEN, SEC V. CHENERY CORP., 332 U.S. 194, 196 (1947),
WE WILL UPHOLD A DECISION OF LESS THAN IDEAL CLARITY IF THE AGENCY'S
PATH MAY REASONABLY BE DISCERNED.  COLORADO INTERSTATE GAS CO. V. FPC,
324 U.S. 581, 595 (1945).  HAVING SUMMARIZED THE APPROPRIATE SCOPE OF
REVIEW, WE PROCEED TO CONSIDER THE DISTRICT COURT'S OBJECTIONS
SERIATIM. 

        A. EVIDENCE AS TO EXISTING SERVICE 

THE APPLICANT CARRIERS PRESENTED EXHIBITS SHOWING THE TIME IN TRANSIT
OF SELECTED SHIPMENTS THAT HAD BEEN CONSIGNED TO APPELLEE CARRIERS BY
PARTICULAR SHIPPERS DURING A DESIGNATED STUDY PERIOD.  AS THE
COMMISSION ACKNOWLEDGED, THE SELECTION OF PARTICULAR SHIPMENTS FROM
THOSE OCCURRING DURING THE STUDY PERIOD HAD BEEN MADE WITH AN EYE
TOWARD DEMONSTRATING SERVICE INADEQUACIES.  /3/  THESE "WORST CASE"
STUDIES FIGURED IN THE COMMISSIONER'S FINDING THAT SERVICE WOULD BE
IMPROVED BY THE ENTRY OF NEW CARRIERS TO THE ROUTES AT ISSUES. 

THE APPELLEE CARRIERS OFFERED STUDIES OF THEIR OWN.  THESE COVERED
THE SAME PERIOD AND THE SAME SHIPPERS AS THE APPLICANTS' PRESENTATIONS,
BUT WHEREAS THE APPLICANTS HAD SELECTED PARTICULAR SHIPMENTS TO
EMPHASIZE INADEQUACIES, THE APPELLEE CARRIERS INCLUDED IN THEIR
PRESENTATIONS ALL OF THE SHIPMENTS CONSIGNED DURING THE STUDY PERIOD. 
THESE EXHIBITS, ARGUED THE PROTESTING CARRIERS, PLACED THE INCIDENTS
CITED BY THE APPLICANTS IN PERSPECTIVE AND DEMONSTRATED THAT THE
EXISTING SERVICE WAS GENERALLY ACCEPTABLE.  THE COMMISSION ACKNOWLEDGED
THE APPELLEES'  PRESENTATIONS BUT CONCLUDED THAT THEY OFFERED AN
INADEQUATE REBUTTAL TO THE APPLICANTS'  EXHIBITS BECAUSE (1) THEY
"RELATE TO SHORT PERIODS OF TIME OR COVER TRAFFIC HANDLED FOR SPECIFIED
SHIPPERS"; AND (2) THE STUDIES REPRESENTED SERVICE PROVIDED BY
APPELLEES AFTER THE COMMISSION HAD DESIGNATED THE APPLICATIONS FOR
HEARING.  HERRIN TRANSPORTATION CO., 114 M.C.C. 571, 599 (1971).  THE
DISTRICT COURT RULED THAT THE COMMISSION HAD APPLIED INCONSISTENT
STANDARDS IN REVIEWING THE EVIDENCE OF THE PARTIES, SINCE THE
APPELLEES' EXHIBITS WERE BASED UPON THE SAME STUDY PERIODS AND THE SAME
SHIPPERS AS THE APPLICANTS' EXHIBITS.  364 F.SUPP.,AT 1259 - 1260. 

WE AGREE WITH THE DISTRICT COURT THAT THE FIRST REASON ASSIGNED BY
THE COMMISSION--THAT THE APPELLEES' EXHIBITS WERE BASED ONLY UPON
PERIODS AND PARTICULAR SHIPPERS--FAILED TO DISTINGUISH THE
PRESENTATIONS OF APPLICANTS AND OPPONENTS.  TO COUNTER THE APPLICANTS'
PRESENTATIONS, THE PROTESTING CARRIERS CHOSE THE IDENTICAL STUDY
PERIODS AND SHIPPERS BUT EXPANDED THE PRESENTATION TO SHOW ALL THE
SHIPMENTS CONSIGNED.  SINCE THE PROTESTERS CONFINED THEMSELVES TO THE
PERIODS AND SHIPPERS THE APPLICANTS HAD SELECTED, THERE WAS NO BASIS
FOR AN INFERENCE THAT THE FORMER HAD CHOSEN SO AS TO MAKE THE EXHIBITS
UNREPRESENTATIVE IN THEIR FAVOR. 

THE COMMISSION'S SECOND REASON, HOWEVER--THAT THE APPELLEES' STUDIES
COVERED PERIODS SUBSEQUENT TO A NOTICE OF HEARING--PROVIDES SUPPORT FOR
THE COMMISSION'S ASSESSMENT OF THE EVIDENCE.  THE COMMISSION RECOGNIZED
THAT PROTESTING CARRIERS MIGHT HAVE BEEN SPURRED TO IMPROVE THEIR
SERVICE BY THE THREAT OF COMPETITION RAISED BY THE DESIGNATION OF
APPLICANTS FOR HEARING.  THEREFORE, REASONED THE COMMISSION, THE
PROTESTING CARRIERS' PERFORMANCE SUBSEQUENT TO THE NOTICE OF HEARING
MIGHT BE SUPERIOR TO THE SERVICE THEY NORMALLY OFFERED, AND THEIR
EXHIBITS, COVERING THOSE PERIODS, HAD TO BE READ IN LIGHT OF THAT
POSSIBILITY.  BUT THE COMMISSION WAS NOT PRECLUDED FROM RELYING UPON
THE DEMONSTRATED SHORTCOMINGS OF THE PROTESTERS' SERVICE DURING THAT
PERIOD, FOR THE INCENTIVE EFFECT THE COMMISSION IDENTIFIED WOULD HAVE,
IF ANYTHING, DISTORTED THE PERFORMANCE STUDIES IN THE PROTESTERS'
FAVOR. 

THE ISSUE BEFORE THE COMMISSION WAS NOT WHETHER THE APPELLEES
SERVICE MET SOME ABSOLUTE STANDARDS OF PERFORMANCE BUT WHETHER THE
"PUBLIC CONVENIENCE AND NECESSITY" WOULD BE SERVED BY THE ENTRY OF NEW
CARRIERS INTO THE MARKETS SERVED BY APPELLEES.  UNITED STATES V. DIXIE
HIGHWAY EXPRESS, 389 U.S. 409, 411 - 412 (1967).  EVEN IF THE
COMMISSION HAD ACCEPTED APPELLEES' EXHIBITS AT FACE VALUE, IT COULD
STILL HAVE CONCLUDED THAT THE DEFICIENCIES WERE SUFFICIENT TO JUSTIFY
THE ADMISSION OF ADDITIONAL CARRIERS.  CERTAINLY THE COMMISSION WAS
ENTITLED TO REGARD THE APPELLEES' STUDIES AS POSSIBLY NONREPRESENTATIVE
OF THE USUAL SERVICE AFFORDED, /4/  TO REASON THAT THE SHORTCOMINGS
WERE PROBABLY GREATER THAN THESE STUDIES SHOWED, AND TO CONCLUDE THAT
SERVICE WOULD BE IMPROVED BY GRANTING THE APPLICATIONS. 

        B. EVIDENCE OF APPLICANTS' FITNESS 

THE APPLICANTS SUPPORTED THEIR SERVICE PROPOSALS WITH EXHIBITS
SHOWING TRANSIT TIMES OVER COMPARABLE DISTANCES ON OTHER ROUTES.  THE
APPELLEES ONCE AGAIN POINTED OUT THAT THE APPLICANTS HAD BEEN SELECTIVE
AND OFFERED TRANSIT TIMES ON DIFFERENT ROUTES SERVED BY THE APPLICANTS
THAT WERE SUBSTANTIALLY LONGER THAN THOSE APPLICANTS PROPOSED TO
PROVIDE ON THE ROUTES AT ISSUE.  APPELLEES THUS ARGUED THAT THE
APPLICANTS COULD NOT REASONABLY BY EXPECTED TO LIVE UP TO THEIR
SERVICES PROPOSALS.  IN ADDITION, THE APPELLEES CITED SERVICE
RESTRICTIONS THAT THE APPLICANTS PRACTICED ON OTHER ROUTES--REFUSAL TO
MAKE SCHEDULED PICKUP OF MERCHANDISE, REFUSAL TO HANDLE SHIPMENTS LESS
THAN A CERTAIN WEIGHT, REFUSAL TO TRANSPORT GOODS TO CERTAIN
DESTINATIONS, AND THE LIKE. 

THE COMMISSION ATTRIBUTED LITTLE SIGNIFICANCE TO THE APPELLEES'
REBUTTAL.  WITH RESPECT TO TRANSIT TIMES, THE COMMISSION NOTED THAT
DIFFERENT HIGHWAY CONDITIONS MIGHT MAKE TRANSIT TIMES OVER IDENTICAL
DISTANCES TOTALLY INCOMPARABLE.  114 M.C.C.,AT 611.  THE DISTRICT COURT
HELD THAT THE COMMISSION HAD ACTED ARBITRARILY IN SO TREATING THE
EVIDENCE, FOR IT HAD APPARENTLY RELIED ON THE APPLICANTS'  TRANSIT-TIME
EVIDENCE (ID., AT 586, 600) TO SUPPORT ITS FINDING OF FITNESS.  364
F.SUPP.,AT 1260 - 1261.  SIMILARLY, THE DISTRICT COURT VIEWED AS
ARBITRARY THE COMMISSIONER'S FAILURE TO MENTION IN ITS OPINION THE
SERVICE RESTRICTIONS BY APPLICANTS THAT APPELLEES'  HAD CITED, SINCE
THE COMMISSION HAD RELIED UPON IDENTICAL RESTRICTIONS PRACTICED BY
APPELLEES TO SUPPORT ITS FINDING THAT EXISTING SERVICE WAS NOT
SATISFACTORY.  114 M.C.C.,AT 600. 

THE COMMISSION'S TREATMENT OF THE EVIDENCE OF THE APPLICANTS'
PERFORMANCE ON OTHER ROUTES IS NOT A PARAGON OF CLARITY.  HAD THE
COMMISSION RESPONDED IN A MORE CONSIDERED MANNER TO THE EVIDENCE
APPELLEES PRESENTED, REVIEW WOULD HAVE BEEN GREATLY FACILITATED, AND
FURTHER REVIEW BY THIS COURT PERHAPS AVOIDED ENTIRELY.  BUT WE CAN
DISCERN IN THE COMMISSION'S OPINION A RATIONAL BASIS FOR ITS TREATMENT
OF THE EVIDENCE, AND THE "ARBITRARY AND CAPRICIOUS" TEST DOES NOT
REQUIRE MORE.  THE QUESTION BEFORE THE COMMISSION WAS WHETHER SERVICE
ON THE ROUTES AT ISSUE WOULD BE ENHANCED BY PERMITTING NEW ENTRY, AND
AS TO THIS THE PERFORMANCE BY PROSPECTIVE ENTRANTS ON NEW ROUTES WAS OF
LIMITED RELEVANCE.  THE COMMISSION NOTED WITH RESPECT TO TRANSIT TIMES
THAT DIFFERENT HIGHWAY CONDITIONS MIGHT MAKE EXPERIENCE THERE A POOR
INDICATION OF THE TIMES APPLICANTS COULD PROVIDE ON THE ROUTES THEY
SOUGHT TO ENTER.  MORE GENERALLY, THE APPLICANTS' PERFORMANCE ON OTHER
ROUTES MIGHT, BECAUSE OF MARKET CONDITIONS PECULIAR TO THAT ROUTE
(E.G., THE NATURE OF DEMAND FOR SERVICE, OR THE NUMBER OF COMPETING
CARRIERS) OFFER AN INACCURATE BASIS FOR PREDICTING WHAT THE APPLICANTS
WOULD DO IF ADMITTED TO THE ROUTES THEY SOUGHT IN COMPETITION WITH THE
CARRIERS ALREADY THERE.  A CARRIER PERFORMING LETHARGICALLY ON A ROUTE
WHERE IT WAS THE SOLE PROVIDED OF MOTOR TRANSPORTATION, FOR EXAMPLE,
COULD ILL AFFORD TO CONTINUE THE SAME PRACTICE WHERE THE SITUATION WAS
MORE COMPETITIVE.  /5/ 

THE PARTICULAR FEATURES OF THE APPLICANTS' PERFORMANCE ELSEWHERE
THAT THE APPELLEES CITED WERE NOT SHOWN BY THE COMMISSION TO BE
EXPLAINABLE BY SPECIAL MARKET CONDITIONS ON THE ROUTES WHERE THEY
OCCURRED.  IT IS SAID THAT THE COMMISSION COULD CONCLUDE THAT THE
EVIDENCE OF PERFORMANCE ELSEWHERE WOULD BE UNLIKELY TO PROVE
DISPOSITIVE, AND THAT ACCORDINGLY, ABSENT SOME COMPELLING DEMONSTRATION
BY A PROPONENT OF A "PERFORMANCE ELSEWHERE" STUDY THAT IT OFFERED
IMPORTANT PREDICTIVE VALUE, THE COMMISSION SHOULD DISREGARD SUCH
EVIDENCE.  /6/  OF COURSE, EVIDENCE OF ESPECIALLY EGREGIOUS PERFORMANCE
ELSEWHERE MIGHT HAVE BEEN VIEWED AS AN EXCEPTION; A GENERAL ASSUMPTION
THAT COMPETITION WOULD FORCE NEW ENTRANTS TO EXCEED THE PRE-EXISTING
QUALITY OF SERVICE IN AN EFFORT TO ATTRACT BUSINESS MIGHT HAVE TO YIELD
IN THE FACE OF AN APPLICANT WHOSE SHORTCOMINGS ELSEWHERE WERE MANY AND
FLAGRANT.  BUT NO SUCH EVIDENCE WAS OFFERED HERE, AND NONE OF THE
APPLICANTS WAS SO CHARACTERIZED.  INDEED THE EXAMINERS FOUND THAT "IN
THE MAIN THE CARRIERS PARTICIPATING IN THESE PROCEEDINGS ARE
SUBSTANTIAL AND RESPONSIBLE CARRIERS," (2 APP. 878) AND NO PARTY HAS
DISPUTED THIS FINDING.  WE DO NOT FIND THE COMMISSION'S TREATMENT OF
THE EVIDENCE ARBITRARY.              II 

HAVING FOUND THAT THE ADMISSION OF THE APPLICANT CARRIERS TO THE
ROUTES THEY SOUGHT WOULD PRODUCE BENEFITS TO THE CONSUMERS SERVED, THE
COMMISSION PROCEEDED TO CONSIDER THE EFFECT OF NEW ENTRY UPON THE
APPELLEES.  WHILE THE COMMISSION ACKNOWLEDGED THAT COMPETITION FROM NEW
ENTRANTS MIGHT CAUSE AT LEAST SHORT-RUN BUSINESS LOSSES FOR EXISTING
CARRIERS, IT FOUND THAT, WITH THE EXCEPTION OF ONE CARRIER, NONE WOULD
BE "SERIOUSLY ADVERSELY AFFECTED."  FURTHER, THE COMMISSION CONCLUDED
THAT IN ANY EVENT, "THE GAINS TO BE DERIVED BY THE SHIPPING PUBLIC IN
GENERAL FAR OUTWEIGH ANY ADVERSE EFFECT THIS CARRIER OR ANY OTHER
PROTESTANT MAY EXPERIENCE."  114 M.C.C.,AT 611. 

THE DISTRICT COURT THOUGHT THE COMMISSION'S TREATMENT UNSUPPORTABLE,
IN VIEW OF THE FINDINGS BY THE HEARING EXAMINERS AS TO ADVERSE IMPACTS
IF THE APPLICATIONS WERE GRANTED.  364 F.SUPP.,AT 1262 - 1263.  INSOFAR
AS THE DISTRICT COURT'S COMMENTS EXPRESS THE VIEW THAT THE COMMISSION
FAILED TO CONSIDER THE EXAMINER'S FINDINGS OR THE APPELLEES' INTERESTS,
THE RECORD SHOWS OTHERWISE.  THE COMMISSION STATED IN ITS OPINION THAT
"GRANTS OF AUTHORITY WILL SUBJECT SOME OF PROTESTANTS'  TRAFFIC TO THE
POSSIBILITY OF DIVERSION," BUT WENT ON TO MAKE FINDINGS THAT THERE
WOULD BE NO "SERIOUS ADVERSE IMPACT."  114 M.C.C.,AT 610 - 611. 

THE EVIDENCE THAT MOVED THE EXAMINERS TO A CONTRARY VIEW CONSISTED
OF TESTIMONY BY APPELLEES' WITNESSES ABOUT THE VOLUME OF SHIPMENTS FOR
WHICH NEW ENTRANTS WOULD COMPETE IF ALLOWED TO ENTER THE MARKET.  THE
TESTIMONY THUS PRESENTED THE CARRIERS'  MAXIMUM POTENTIAL EXPOSURE,
LEAVING CONSIDERABLE LEEWAY FOR PREDICTING WHAT WAS LIKELY IF
APPLICATIONS WERE GRANTED.  CF. MARKET STREET R. CO. V. RAILROAD
COMM'N, 324 U.S. 548 (1945).  THE EXAMINERS EMPHASIZED THE MAGNITUDE OF
POTENTIAL HARM; THE COMMISSION TOOK A MORE OPTIMISTIC VIEW.  WE SEE
NOTHING ARBITRARY IN THIS POSTURE.  THAT A CARRIER'S ENTIRE BUSINESS
WILL BE SUBJECT TO COMPETITION HARDLY COMPELS THE CONCLUSION THAT ITS
OPERATIONS WILL SHOW NO PROFIT.  IT WAS RATIONAL FOR THE COMMISSION SO
TO CONCLUDE THAT THE NEW ENTRANT MAY BE EXPECTED NOT TO SWALLOW UP
EXISTING CARRIERS, ESPECIALLY IF THE LATTER MAKE EFFORTS TO ATTRACT
BUSINESS.  MOREOVER, THE TESTIMONY OFFERED BY APPELLEES'  WITNESSES
GAVE THE CARRIERS' EXPOSURE TO COMPETITION IF EVERY NEW APPLICATION
SOUGHT BY APPELLEES WERE GRANTED.  /7/  THUS, THE EXAMINERS WERE
REPORTING UPON POTENTIAL DIVERSIONS OF TRAFFIC UNDER CONDITIONS THAT
WERE NEVER REALIZED.  SINCE THE COMMISSION GRANTED ONLY THREE OF THE 10
PENDING APPLICATIONS, MUCH OF THE TESTIMONY ON THIS MATTER HAD TO BE
REGARDED WITH QUALIFICATION, AND SOME OF IT DISREGARDED ENTIRELY.  /8/ 

THE COMMISSION'S CONCLUSION THAT CONSUMER BENEFITS OUTWEIGHED ANY
ADVERSE IMPACT UPON THE EXISTING CARRIERS REFLECTS THE KIND OF JUDGMENT
THAT IS ENTRUSTED TO IT, A POWER TO WEIGH THE COMPETING INTERESTS AND
ARRIVE AT A BALANCE THAT IS DEEMED "THE PUBLIC CONVENIENCE AND
NECESSITY."  UNITED STATES V. PIERCE AUTO LINES, 327 U.S. 515, 535 -
536 (1946).  IF THE COMMISSION HAS "DRAWN OUT AND CRYSTALLIZED THESE
COMPETING INTERESTS (AND) ATTEMPTED TO JUDGE THEM WITH AS MUCH DELICACY
AS THE PROSPECTIVE NATIVE OF THE INQUIRY PERMITS," ICC V. J - T
TRANSPORT CO., 368 U.S. 81, 89 (1961), WE CAN REQUIRE NO MORE.  HERE
THE COMMISSION IDENTIFIED THE COMPETING INTERESTS.  WE CANNOT SAY THAT
THE BALANCE IT STRUCK WAS ARBITRARY OR CONTRARY TO LAW. 

        III 

THE DISTRICT COURT EXPRESSED CONCERN ABOUT THE CONSIDERABLE LAPSE OF
TIME BETWEEN THE CONCLUSION OF EVIDENTIARY HEARINGS AND THE
COMMISSION'S DECISION.  364 F.SUPP.,AT 1261 - 1262.  WHILE IT IS
UNCLEAR WHETHER THIS WAS AN INDEPENDENT GROUND FOR SETTING ASIDE THE
COMMISSION'S ORDER, WE DEEM IT ADVISABLE TO DEAL DIRECTLY WITH THE
SUGGESTION THAT THE RECORD HAS GROWN TOO STALE TO SUPPORT THE ORDER. 

HEARINGS ON THE APPLICATIONS IN THESE CASES BEGAN IN 1966 AND
CONCLUDED IN 1967.  THEREAFTER, THE PARTIES PREPARED EXTENSIVE BRIEFS
FOR THE EXAMINERS, WHO RENDERED THEIR DECISION IN NOVEMBER 1969.  THE
DECISION OF THE COMMISSION WAS HANDED DOWN ON DECEMBER 30, 1971.  THUS,
THE EVIDENTIARY MATERIAL PERTAINED TO SERVICE CONDITIONS WHICH WERE
DATED BY FIVE YEARS AT THE TIME THE COMMISSION RENDERED ITS DECISION. 

WE APPRECIATE THE DIFFICULTIES THAT ARISE WHEN THE LAPSE BETWEEN
HEARING AND ULTIMATE DECISION IS SO LONG.  UNDOUBTEDLY ECONOMIC CHANGES
DATED THE 1966 STUDIES THAT THE PARTIES, BOTH APPLICANTS AND APPELLEES,
HAD PLACED IN THE RECORD.  NEVERTHELESS, WE HAVE ALWAYS BEEN LOATH TO
REQUIRE THAT FACTFINDING BEGIN ANEW MERELY BECAUSE OF DELAY IN
PROCEEDINGS OF SUCH MAGNITUDE AND COMPLEXITY.  TO REPEAT WHAT WAS SAID
IN ICC V. JERSEY CITY, 322 U.S. 503, 514 - 515 (1944): 

"ADMINISTRATIVE CONSIDERATION OF EVIDENCE--PARTICULARLY WHERE THE
EVIDENCE IS TAKEN BY AN EXAMINER, HIS REPORT SUBMITTED TO THE PARTIES,
AND A HEARING HELD ON THEIR EXCEPTIONS TO IT--ALWAYS CREATES A GAP
BETWEEN THE TIME THE RECORD IS CLOSED AND THE TIME THE ADMINISTRATIVE
DECISION IS PROMULGATED.  THIS IS ESPECIALLY TRUE IF THE ISSUES ARE
DIFFICULT, THE EVIDENCE INTRICATE, AND THE CONSIDERATION OF THE CASE
DELIBERATE AND CAREFUL.  IF UPON THE COMING DOWN OF THE ORDER LITIGANTS
MIGHT DEMAND REHEARINGS AS A MATTER OF LAW BECAUSE SOME NEW
CIRCUMSTANCES HAS ARISEN, SOME NEW TREND HAS BEEN OBSERVED, OR SOME NEW
FACT DISCOVERED, THERE WOULD BE LITTLE HOPE THAT THE ADMINISTRATIVE
PROCESS COULD EVER BE CONSUMMATED IN AN ORDER THAT WOULD NOT BE SUBJECT
TO REOPENING.  IT HAS BEEN ALMOST A RULE OF NECESSITY THAT REHEARINGS
WERE NOT MATTERS OF RIGHT, BUT WERE PLEAS TO DISCRETION.  AND LIKEWISE
IT HAS BEEN CONSIDERED THAT THE DISCRETION TO BE INVOKED WAS THAT OF
THE BODY MAKING THE ORDER, AND NOT THAT OF A REVIEWING BODY. 

ONLY IN ATCHISON, T. & S.F.R. CO. V. UNITED STATES, 284 U.S. 248
(1932), DID WE REMAND A CASE FOR REOPENING OF EVIDENTIARY PROCEEDINGS;
THERE THE COMMISSION'S REFUSAL TO REOPEN IN LIGHT OF THE ECONOMIC
METAMORPHOSIS BROUGHT ON BY THE GREAT DEPRESSION LED THE COURT TO FIND
AN ABUSE OF DISCRETION.  THE SAME EXCEPTIONAL CIRCUMSTANCES THAT
COMPELLED THAT DISPOSITION, HOWEVER, HAVE BEEN FOUND LACKING IN MORE
RECENT CASES.  SEE UNITED STATES V. NORTHERN PACIFIC R. CO., 288 U.S.
490 (1933); ILLINOIS COMMERCE COMM'N V. UNITED STATES, 292 U.S. 474
(1934); ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38
(1936); ICC V. JERSEY CITY, SUPRA; UNITED STATES V. PIERCE AUTO LINES,
SUPRA; NORTHERN LINES MERGER CASES, 396 U.S. 491 (1970).  ILLINOIS
COMMERCE COMM'N V. UNITED STATES, SUPRA, IS OF PARTICULAR RELEVANCE,
FOR THERE THE COURT REFUSED TO COMPEL THE INTERSTATE COMMERCE
COMMISSION TO REOPEN FOR THE INCLUSION OF NEW ECONOMIC STUDIES A RECORD
ALREADY CLOSED FOR A COMPARABLE PERIOD.  WE BELIEVE APPELLEES FAILED TO
MEET THE HEAVY BURDEN THRUST UPON THEM BY OUR CASES.  /9/ 

THE PROTRACTED CHARACTER OF THE PROCEEDINGS RESULTED, NOT FROM
BUREAUCRATIC INERTIA, BUT FROM THE NUMBER AND COMPLEXITY OF THE ISSUES
AND FROM THE AGENCY PROCEDURES THAT EXTENDED TO THE PARTIES, IN AN
EFFORT TO INSURE FAIRNESS IN APPEARANCE AS WELL AS REALITY, AND AN
OPPORTUNITY TO COMMENT UPON THE PROCEEDINGS AT EVERY STAGE.  MORE THAN
900 WITNESSES TESTIFIED IN THE ORIGINAL HEARINGS, WHICH CONSUMED 150
DAYS.  AT THE CONCLUSION THE PARTIES SUBMITTED BRIEFS REQUIRING SEVEN
MONTHS TO PREPARE.  THE EXAMINERS' DECISION DID NOT ISSUE UNTIL NEARLY
TWO YEARS LATER.  IT IS DOUBTFUL THAT THE COMMISSION COULD HAVE MADE
THE RECORD MORE CURRENT BY JUDICIAL NOTICE ALONE; WHILE LIVE TESTIMONY
MIGHT NOT HAVE BEEN REQUIRED, THE COMMISSION WOULD AT LEAST HAVE HAD TO
ENTERTAIN EVIDENCE IN AFFIDAVIT FORM.  YET THERE WOULD HAVE BEEN LITTLE
ASSURANCE THAT AT THE CONCLUSION OF SUCH A REOPENING, AND THE TIME
REQUIRED TO DIGEST THE NEW MATERIAL, THE RECORD WOULD NOT AGAIN HAVE
BECOME "STALE."  ACCORDINGLY, WE CONCLUDE THAT THERE IS SOUND BASIS FOR
ADHERING TO OUR PRACTICE OF DECLINING TO REQUIRE REOPENING OF THE
RECORD, EXCEPT IN THE MOST EXTRAORDINARY CIRCUMSTANCES. 

        IV 

WE CONCLUDE BY ADDRESSING A CONCERN VOICED BY THE DISTRICT COURT,
THAT THE COMMISSION'S DECISION 

"INDICATES A PREDILECTION TO GRANT THESE PARTICULAR APPLICATIONS,
FOLLOWED BY A STRAINED ATTEMPT TO MARSHAL FINDINGS TO SUPPORT SUCH
CONCLUSION."  364 F. SUPP.,AT 1264.  WE DISAGREE WITH THE DISTRICT
COURT INSOFAR AS ITS REMARKS CHARGE THE COMMISSION WITH PREJUDGING THE
ISSUE AND DECIDING WITHOUT GIVING CONSIDERATION TO THE EVIDENCE.  BUT
WE THINK THE APPROACH ADOPTED BY THE COMMISSION DOES DIFFER FROM THAT
TAKEN BY THE EXAMINERS IN SIGNIFICANT RESPECTS THAT ARE IMPORTANT TO
IDENTIFY. 

THE EXAMINERS VIEWED THE EVIDENCE AGAINST A BACKDROP OF ASSUMPTIONS
ABOUT THE RELATIONSHIP BETWEEN CONSUMER NEEDS AND CARRIER
RESPONSIBILITIES.  THE EXAMINERS RULED, FOR EXAMPLE, THAT ALL SHIPPERS
WERE NOT ENTITLED TO "SINGLELINE SERVICE" AND THAT THE SHIPPERS'
DIFFICULTIES WERE ATTRIBUTABLE, IN PART, TO LACK OF DILIGENCE.  THE
EXAMINERS PUT IT THAT 

"NORMALLY EXISTING CARRIERS SHOULD HAVE AN OPPORTUNITY . . . TO
TRANSPORT ALL OF THE TRAFFIC THEY CAN HANDLE ADEQUATELY AND EFFICIENTLY
IN THE TERRITORY THEY ARE AUTHORIZED TO SERVE WITHOUT THE COMPETITION
OF NEW OPERATIONS."  AND TO THE EXTENT THAT SERVICE INADEQUACIES WERE
DEMONSTRATED, THE EXAMINERS VIEWED COMPLAINTS TO FORCE COMPLIANCE WITH
CERTIFICATES HELD BY EXISTING CARRIERS AS A PREFERRED MODE OF RELIEF. 

THE COMMISSION'S APPROACH, ON THE OTHER HAND, WAS MORE CONGENIAL TO
NEW ENTRY AND THE RESULTING COMPETITION.  THIS IS THE COMMISSION'S
PREROGATIVE IN CARRYING OUT ITS MANDATE TO INSURE "SAFE, ADEQUATE,
ECONOMICAL, AND EFFICIENT SERVICE," NATIONAL TRANSPORTATION POLICY,
PROCEDING 48 U.S.C. 1.  THE COMMISSION WAS NOT COMPELLED TO ADOPT THE
SAME APPROACH AS THE EXAMINERS.  IT COULD CONCLUDE THAT THE BENEFITS OF
COMPETITIVE SERVICE TO CONSUMERS MIGHT OUTWEIGH THE DISCOMFORTS
EXISTING CERTIFICATED CARRIERS COULD FEEL AS A RESULT OF NEW ENTRY. 
/10/  OUR DECISIONS HAVE DISPELLED ANY NOTION THAT THE COMMISSION'S
PRIMARY OBLIGATION IS THE PROTECTION OF FIRMS HOLDING EXISTING
CERTIFICATES.  ICC V. J - T TRANSPORT CO., SUPRA, DISAPPROVED THE
PROPOSIDTION THAT SHIPPERS MUST TAKE THEIR GRIEVANCES THROUGH COMPLAINT
PROCEDURES BEFORE IMPROVEMENT THROUGH NEW ENTRY IS PERMITTED.  368
U.S.,AT 91.  AND IN UNITED STATES V. DIXIE EXPRESS, 389 U.S. 409
(1967), WE REJECTED THE SUGGESTION BY A REVIEWING COURT HTAT EXISTING
CARRIERS HAVE "A PROPERTY RIGHT" TO AN OPPORTUNITY TO MAKE AMENDS
BEFORE NEW CERTIFICATES ISSUE.  ID., AT 411. 

A POLICY IN FAVOR OF COMPETITION EMBODIED IN THE LAWS HAS
APPLICATION IN A VARIETY OF ECONOMIC AFFAIRS.  EVEN WHERE CONGRESS HAS
CHOSEN GOVERNMENT REGULATION AS THE PRIMARY DEVICE FOR PROTECTING THE
PUBLIC INTEREST, A POLICY OF FACILITATING COMPETITIVE MARKET STRUCTURE
AND PERFORMANCE IS ENTITLED TO CONSIDERATION.  MCLEAN TRUCKING CO. V.
UNITED STATES, 321 U.S. 67 (1944); FMC V. SVENSKA AMERIKA LINIEN, 390
U.S. 238 (1968); GULF STATES UTILITIES CO. V. FPC, 411 U.S. 747 (1973);
DENVER & R.G.W.R. CO. V. UNITED STATES, 387 U.S. 485 (1967).  THE
COMMISSION, OF COURSE, IS ENTITLED TO CONCLUDE THAT PRESERVATION OF A
COMPETITIVE STRUCTURE IN A GIVEN CASE IS OVERRIDDEN BY OTHER INTERESTS,
UNITED STATES V. DRUM, 368 U.S. 370, 374 - 375 (1962), BUT WHERE, AS
HERE, THE COMMISSION CONCLUDES THAT COMPETITION "AIDS IN THE ATTAINMENT
OF THE OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY,"  MCLEAN
TRUCKING CO. V. UNITED STATES, SUPRA, AT 85 - 86, WE HAVE NO BASIS FOR
DISTURBING THE COMMISSION'S ACCOMMODATION. 

V 

OUR OPINION DISPOSES OF APPELLEES' OBJECTIONS TO THE COMMISSION'S
ORDER INSOFAR AS IT GRANTED THE APPLICATIONS OF JOHNSON AND RED BALL. 
/11/  AS TO APPELLANT BOWMAN, HOWEVER, AS ISSUE REMAINS.  IN GRANTING
BOWMAN A CERTIFICATE THE COMMISSION NOTED THAT THE AUTHORITY SOUGHT BY
BOWMAN EXCEEDED THAT SET FORTH IN BOWMAN'S APPLICATION.  THE "EXCESS"
WAS GRANTED, SUBJECT TO A CONDITION PRECEDENT OF PUBLICATION IN THE
FEDERAL REGISTER OF BOWMAN'S REQUEST FOR THE EXCESS AUTHORITY.  VARIOUS
APPELLEES FILED OBJECTIONS TO THE AUGMENTED AUTHORITY SOUGHT BY BOWMAN,
WHICH THE COMMISSION OVERRULED.  APPELLEES CHALLENGED THE COMMISSION'S
PROCEDURE IN THE DISTRICT COURT ON A VARIETY OF GROUNDS, AND THOUGH THE
DISTRICT COURT ON A VARIETY OF GROUNDS, AND THOUGH THE DISTRICT COURT
INDICATED DISAPPROVAL OF THE COMMISSION'S ACTION, THE COURT DID NOT
HAVE TO RULE ON THE MERITS OF APPELLEES'  OBJECTIONS SINCE IT SET ASIDE
THE COMMISSION'S APPROVAL OF ALL THE APPLICATIONS. 

WHILE WE HAVE ON OCCASION DECIDED RESIDUAL ISSUES IN THE INTEREST OF
AN EXPEDITIOUS CONCLUSION OF PROTRACTED LITIGATION, SEE CONSOLO V. FMC,
383 U.S. 607, 621 (1966), WE BELIEVE THAT THE ISSUE OF CONFORMITY OF
THE BOWMAN CERTIFICATE TO ITS APPLICATION IS ONE FOR THE DISTRICT
COURT.  THE ISSUE WAS NOT BRIEFED OR ARGUED HERE, OWING TO THE
LIMITATIONS SET FORTH IN OUR ORDER NOTING PROBABLE JURISDICTION.  AND
WHILE THE DISTRICT COURT SPOKE OF THE COMMISSION'S ACTION IN THIS
REGARD, WE DO NOT CONSTRUE ITS EXPRESSIONS AS A FINAL RULING, SINCE
THEY WERE UNNECESSARY TO THE DISTRICT COURT'S DISPOSITION OF THE CASE. 
ACCORDINGLY, THE ISSUE REMAINS OPEN ON REMAND. 

WE HASTEN TO ADD, HOWEVER, THAT OUR REMAND PROVIDES NO BASIS FOR
DEPRIVING BOWMAN OF AUTHORITY CONFERRED BY THE COMMISSION THAT WAS
WITHIN ITS ORIGINIAL APPLICATION.                    REVERSED AND
REMANDED. 

/1/  THE HEARING LASTED OVER 18 MONTHS: THIS TRANSCRIPT COVERS
23,423 PAGES:  THERE ARE 1,989 EXHIBITS; A TOTAL OF 950 WITNESSES
TESTIFIED ON BEHALF OF 10 APPLICANTS; 66 RAIL AND MOTOR CARRIERS
ENTERED APPEARANCES IN OPPOSITION TO THE APPLICATIONS; 48 OF THE
PROTESTANTS OFFERED EVIDENCE THROUGH 62 WITNESSES AND NUMEROUS
EXHIBITS. 

/2/  "THE SUBSTANTIALITY OF EVIDENCE MUST TAKE INTO ACCOUNT WHATEVER
IN THE RECORD FAIRLY DETRACTS FROM ITS WEIGHT."  340 U.S.,AT 488.  AND
SEE 4 K. DAVIS, ADMINISTRATIVE LAW TREATIES 29.03, P. 129 (1958); L.
JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 601.  (1965).     /3/
THE COMMISSION STATED:  "MANY OF THE SERVICE EXHIBITS DO NOT COVER ALL
OF THE SHIPPER'S PERTINENT TRAFFIC DURING THE STUDY PERIOD AND SOME
INCLUDE SHIPMENTS WHICH WERE LISTED BECAUSE COMPLAINTS WERE RECEIVED ON
THIS TRAFFIC."  HERRIN TRANSPORTATION CO., 114 M.C.C. 571, 596 (1971). 

/4/  THE DISTRICT COURT ALSO RULED THAT SINCE THERE HAD BEEN NO
SUGGESTION DURING THE EVIDENTIARY HEARINGS THAT PERFORMANCE STUDIES
SUBSEQUENT TO NOTICE OF HEARING MIGHT NOT BE VIEWED AS REPRESENTATIVE,
THE APPELLEES HAD BEEN DENIED FAIR NOTICE OF THE STANDARDS BY WHICH
THEIR EVIDENCE WOULD BE JUDGED.  364 F.SUPP.  1239, 1260.  WE
DISAGREE.  A PARTY IS ENTITLED, OF COURSE, TO KNOW THE ISSUES ON WHICH
DECISION WILL TURN AND TO BE APPRISED OF THE FACTUAL MATERIAL ON WHICH
THE AGENCY RELIES FOR DECISION SO THAT HE MAY REBUT IT.  INDEED, THE
DUE PROCESS CLAUSE FORBIDS AN AGENCY TO USE EVIDENCE IN A WAY THAT
FORECLOSES AN OPPORTUNITY TO OFFER A CONTRARY PRESENTATION.  OHIO BELL
TELEPHONE CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292 (1937); UNITED
STATES V. ABILENE & S.R. CO., 265 U.S. 274 (1924).  BUT THESE SALUTARY
PRINCIPLES DO NOT PRECLUDE A FACTFINDER FROM OBSERVING STRENGTHS AND
WEAKNESSES IN THE EVIDENCE THAT NO PARTY IDENTIFIED.  IF THE EXAMINERS
HAD RAISED THE QUALIFICATIONS TO APPELLEES' EVIDENCE THE COMMISSION
LATER INTERPOSED, THERE WOULD HAVE BEEN NO BASIS FOR SUGGESTING
UNFAIRNESS.  SEE AMERICAN TRUCKING ASSNS.  V. FRISCO TRANSPORTATION
CO., 358 U.S. 133, 144 (1958).  THE SITUATION IS NOT ALTERED BY THE
FACT THAT THE COMMISSION PARTED COMPANY WITH THE EXAMINERS.  EVEN AS TO
MATTERS, SUCH AS THE CREDIBILITY OF WITNESSES, WHERE THE EXAMINER IS
THOUGHT TO HAVE AN ADVANTAGE, THE REVIEWING AGENCY IS NOT RIGIDLY
BARRED FROM TAKING A CONTRARY POSITION.  UNIVERSAL CAMERA CORP. V.
NLRB, 340 U.S. 474 (1951).  WE PERCEIVE NO REASON FOR BINDING AN AGENCY
TO THE EXPERIENCE AND VIEWPOINT OF THE EXAMINER IN THE INTERPRETATION
OF STUDIES IN THE RECORD.  APPELLEES ARE NOT IN A POSITION TO CLAIM
UNFAIR SURPRISE.  THE COMMISSION OFFERED THE IDENTICAL RATIONALE IN
INTERPRETING TRANSIT-TIME STUDIES IN A CASE DECIDED JUST AS HEARINGS IN
THIS CASE BEGAN.  SEE BRASWELL FREIGHT LINES, 100 M.C.C. 482, 493 - 494
(1966).  APPELLEES OFFERED THEIR STUDIES KNOWING THAT THE COMMISSION
MIGHT INTERPOSE QUALIFICATIONS. 

/5/  WE THUS DISTINGUISH THE CASE WHERE A FIRM ALREADY IN POSSESSION
OF A FRANCHISE THAT OFFERS A HIGH DEGREE OF PROTECTION FROM COMPETITION
SEEKS ITS RENEWAL.  CF. OFFICE OF COMMUNICATIONS OF UNITED CHURCH OF
CHRIST V. FCC, 123 U.S. APP.D.C. 328, 341, 359 F.2D 994, 1007 (1966)
("HISTORY OF PROGRAMMING MISCONDUCT . . . WOULD PRECLUDE . . . THE
REQUIRED FINDING THAT RENEWAL OF THE LICENSE WOULD SERVE THE PUBLIC
INTEREST"). 

/6/  FAIRNESS AS WELL AS RATIONALITY, HOWEVER, COMMAND EVENHANDED
APPLICATION OF SUCH A RULE.  THE COMMISSION SHOULD NOT HAVE CITED
APPLICANTS'  "PERFORMANCE ELSEWHERE"  PRESENTATIONS WITHOUT NOTING
APPROPRIATE QUALIFICATIONS.  COMPARE 114 M.C.C.,AT 586, WITH ID., AT
611.  YET IN VIEW OF THE EXAMINERS' UNDISPUTED CONCLUSION THAT ALL THE
CARRIERS WERE "SUBSTANTIAL AND RESPONSIBLE," THERE WAS ADEQUATE
REMAINING BASIS FOR THE COMMISSION'S FINDING OF THE APPLICANTS'
FITNESS.  AND THE SERVICE BENEFITS THE COMMISSION ANTICIPATED FROM NEW
ENTRY INCLUDED, NOT MERELY A POSSIBILITY OF IMPROVED TRANSIT TIMES, BUT
MANY OTHER IMPROVEMENTS IN SERVICE QUALITY.  THE COMMISSION IDENTIFIED
AS SERVICE DEFICIENCIES THAT WOULD BE REMOVED BY NEW ENTRY THE
FOLLOWING:  "RESTRICTIONS OR EMBARGOES (OR) OUTRIGHT REFUSALS BY
EXISTING CARRIERS TO HANDLE . . . TRAFFIC"; "PICKUP AND DELIVERY
PROBLEMS; INTERLINE DIFFICULTIES RELATING TO LOSS, DAMAGE, TRACING,
SHORTAGE, AND MISROUTING.  . . ."  ID., AT 600. 

/7/  EACH CARRIER PRESENTED THE POSSIBLE DIVERSION OF TRAFFIC THAT
WOULD RESULT IF THE APPLICATIONS IF WAS OPPOSING WERE GRANTED.  IN MANY
CASES, THE PROTESTING CARRIER WAS OPPOSING APPLICATIONS NOT ULTIMATELY
GRANTED BY THE COMMISSION.  SEE, E.G., EXAMINERS' DECISION, APP. D, AT
6, 13, 14, 19, 24, 25, 34, 35, AND 48 (REPRODUCED IN 2 APP. 864,
1191). 

/8/  THE SAME MUST BE SAID OF THE EXAMINERS' CONCERN THAT SERVICE TO
SMALL COMMUNITIES MIGHT BE ADVERSELY AFFECTED BY GRANTING ALL THE
APPLICATIONS, SINCE THESE FEARS DERIVED FROM THOSE ABOUT IMPACT UPON
PROTESTING CARRIERS. 

/9/  MUCH IS MADE, FOR EXAMPLE, OF THE COMMISSION'S FAILURE TO
NOTICE A NUMBER OF TERMINAL CLOSINGS BY APPELLANT RED BALL THAT HAD
OCCURRED SINCE EVIDENTIARY PROCEEDINGS HAD CONCLUDED.  364 F.SUPP.,AT
1261.  THE COMMISSION, HOWEVER, CITED THE NUMBER OF RED BALL TERMINALS-
REDUCED BY INTERVENING EVENTS--ONLY IN SUPPORT OF ITS CONCLUSION THAT
RED BALL, RATHER THAN THREE OTHER CARRIERS, SHOULD BE CERTIFICATED TO
OFFER NEW SERVICE.  114 M.C.C.,AT 603.  SINCE THESE THREE CARRIERS ARE
NOT AMONG APPELLEES, WE HAVE DOUBT THAT APPELLEES CAN SHOW SUBSTANTIAL
PREJUDICE FROM THE COMMISSION'S FAILURE TO UPDATE THE INFORMATION. 

/10/  IN COMMENTING UPON THE PERCEIVED LACK OF DILIGENCE BY THE
SHIPPERS IN SEEKING OUT SERVICE, THE EXAMINERS REJECTED THE NOTION THAT
"THE BURDEN IS UPON CARRIERS TO INFORM SHIPPERS OF THEIR SERVICES
THROUGH SOLICITATION."  THE COMMISSION, HOWEVER, WOULD HAVE BEEN FREE
TO CONCLUDE THAT GREATER PROMOTIONAL EFFORT BY CARRIERS, BROUGHT ABOUT
THROUGH COMPETITION, MIGHT MOST ECONOMICALLY FACILITATE THE MATCHING OF
SERVICES TO NEEDS. 

/11/  AT ORAL ARGUMENT COUNSEL FOR APPELLEES DISPOSED OF ANY
"SUBSTANTIAL EVIDENCE"  OBJECTIONS TO THE COMMISSION'S ORDER BY
CONCEDING THAT "WE DID NOT ALLEGE THAT ANY FINDING OF FACT ITSELF WAS
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE."  TR. OF ORAL ARG. 25. 

CHARLES S. RHYNE ARGUED THE CAUSE FOR APPELLANTS IN NOS. 73 - 1055,
73 - 1069, 73 - 1070, AND 73 - 1071.  WITH HIM ON THE BRIEFS WERE BRYCE
REA, JR., DONALD E. CROSS, COURTS OULAHAN, ROBERT L. JONES, JR.,
MAURICE F. BISHOP, SANDER W. SHAPIRO, AND JERRY C. PRESTRIDGE.  WILLIAM
L. PATTON ARGUED THE CAUSE FOR THE UNITED STATES ET AL. IN NO. 73 -
1072.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL KAUPER, CARL D. LAWSON, FRITZ R. KAHN, BETTY JO
CHRISTIAN, AND RICHARD H. STREETER. 

PHINEAS STEVENS ARGUED THE CAUSE FOR APPELLEES IN ALL CASE.  WITH
HIM ON THE BRIEF WERE DREW L. CARRAWAY, PHILLIP ROBINSON, M. WARD
BAILEY, DON A. SMITH, THOMAS HARPER, WENTWORTH E. GRIFFIN, FRANK W.
TAYLOR, JR., WILLIAM O. TURNEY, AND J. WILLIAM CAIN, JR.
..END :



















LINDEN LUMBER DIVISON V. NLRB, 419 U.S. 301 


       LINDEN LUMBER DIVISION, SUMMER & CO. V. NATIONAL LABOR

           RELATIONS BOARD ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

        NO. 73 - 1231.  ARGUED NOVEMBER 18, 1974--DECIDED DECEMBER

           23, 1974* 159 U.S.APP.D.C. 228, 487 F.2D 1099,

           REVERSED. 

        *TOGETHER WITH NO. 73 - 1234, NATIONAL LABOR RELATIONS
BOARD

           V. TRUCK DRIVERS UNION LOCAL NO. 413 ET AL., ALSO ON

           CERTIORARI TO THE SAME COURT. 


    AN EMPLOYER WHO HAS NOT ENGAGED IN AN UNFAIR LABOR PRACTICE

  IMPAIRING THE ELECTORAL PROCESS DOES NOT COMMIT A VIOLATION OF

  8(A)(5) OF THE NATIONAL LABOR RELATIONS ACT SIMPLY BECAUSE HE

  REFUSES TO ACCEPT EVIDENCE OF THE UNION'S MAJORITY STATUS OTHER

  THAN THE RESULTS OF A BOARD ELECTION.  AT LEAST IN THE ABSENCE OF

  ANY AGREEMENT TO PERMIT MAJORITY STATUS TO BE DETERMINED BY MEANS

  OTHER THAN A BOARD ELECTION, A UNION THAT IS REFUSED RECOGNITION

DESPITE AUTHORIZATION CARDS OR OTHER SUCH EVIDENCE PURPORTING TO

  SHOW THAT IT REPRESENTS A MAJORITY OF THE EMPLOYEES HAS THE

  BURDEN OF TAKING THE NEXT STEP AND INVOKING THE BOARD'S ELECTION

  PROCEDURE.  PP. 303 - 310. 

     DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND BRENNAN, BLACKMUN, AND REHNQUIST, JJ.,

JOINED.  STEWART, J., FILED A DISSENTING OPINION, IN WHICH WHITE,

  MARSHALL, AND POWELL, JJ., JOINED, POST, P. 310. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT A QUESTION EXPRESSLY RESERVED IN NLRB V. GISSEL
PACKING CO., 395 U.S. 575, 595, 601 N. 18 (1969). 

IN LINDEN RESPONDENT UNION OBTAINED AUTHORIZATION CARDS FROM A
MAJORITY OF PETITIONER'S EMPLOYEES AND DEMANDED THAT IT BE RECOGNIZED
AS THE COLLECTIVE-BARGAINING REPRESENTATIVE OF THOSE EMPLOYEES.  LINDEN
SAID IT DOUBTED THE UNION'S CLAIMED MAJORITY STATUS AND SUGGESTED THE
UNION PETITION THE BOARD FOR AN ELECTION.  THE UNION FILED SUCH A
PETITION WITH THE BOARD BUT LATER WITHDREW IT WHEN LINDEN DECLINED TO
ENTER A CONSENT ELECTION AGREEMENT OR ABIDE BY AN ELECTION, ON THE
GROUND THAT RESPONDENT UNION'S ORGANIZATIONAL CAMPAIGN HAD BEEN
IMPROPERLY ASSISTED BY COMPANY SUPERVISORS.  RESPONDENT UNION THEREUPON
RENEWED ITS DEMAND FOR COLLECTIVE BARGAINING; AND AGAIN LINDEN
DECLINED, SAYING THAT THE UNION'S CLAIMED MEMBERSHIP HAD BEEN
IMPROPERLY INFLUENCED BY SUPERVISORS.  THEREUPON RESPONDENT UNION
STRUCK FOR RECOGNITION AS THE BARGAINING REPRESENTATIVE AND SHORTLY
FILED A CHARGE OF UNFAIR LABOR PRACTICE AGAINST LINDEN BASED ON ITS
REFUSAL TO BARGAIN. 

THERE IS NO CHARGE THAT LINDEN ENGAGED IN AN UNFAIR LABOR PRACTICE
/1/  APART FROM ITS REFUSAL TO BARGAIN.  THE BOARD HELD THAT LINDEN
SHOULD NOT BE GUILTY OF AN UNFAIR LABOR PRACTICE /2/  SOLELY ON THE
BASIS "OF ITS REFUSAL TO ACCEPT EVIDENCE OF MAJORITY STATUS OTHER THAN
THE RESULTS OF A BOARD ELECTION."  190 N.L.R.B. 718, 721 (1971). 

IN WILDER /3/ THERE APPARENTLY WERE 30 EMPLOYEES IN THE PLANT, AND
THE UNION WITH 11 SIGNED AND TWO UNSIGNED AUTHORIZATION CARDS REQUESTED
RECOGNITION AS THE BARGAINING AGENT FOR THE COMPANY'S PRODUCTION AND
MAINTENANCE EMPLOYEES.  OF THE 30 EMPLOYEES 18 WERE IN THE PRODUCTION
AND MAINTENANCE UNIT WHICH THE BOARD FOUND TO BE APPROPRIATE FOR
COLLECTIVE BARGAINING.  NO ANSWER WAS GIVEN BY THE EMPLOYER, WILDER,
AND RECOGNITIONAL PICKETING BEGAN.  THE REQUEST WAS RENEWED WHEN THE
TWO UNSIGNED CARDS WERE SIGNED, BUT WILDER DENIED RECOGNITION. 
THEREUPON THE UNION FILED UNFAIR LABOR PRACTICE CHARGES AGAINST
WILDER.  A SERIES OF BOARD DECISIONS AND JUDICIAL DECISIONS, NOT
NECESSARY TO RECAPITULATE HERE, CONSUMED ABOUT SEVEN YEARS UNTIL THE
PRESENT DECISION BY THE COURT OF APPEALS.  /4/  THE BOARD MADE THE SAME
RULING AS RESPECTS WILDER AS IT DID IN LINDEN'S CASE.  SEE 198 N.L.R.B.
NO. 123 (1972).  ON PETITIONS FOR REVIEW THE COURT OF APPEALS
REVERSED.  159 U.S.APP.D.C. 228, 487 F.2D 1099 (1973).  WE REVERSE THE
COURT OF APPEALS. 

IN GISSEL WE HELD THAT AN EMPLOYER WHO ENGAGES IN "UNFAIR" LABOR
PRACTICES "'LIKELY TO DESTROY THE UNION'S MAJORITY AND SERIOUSLY IMPEDE
THE ELECTION'" MAY NOT INSIST THAT BEFORE IT BARGAINS THE UNION GET A
SECRET BALLOT ELECTION.  395 U.S.,AT 600.  THERE WERE NO SUCH UNFAIR
LABOR PRACTICES HERE, NOR HAD THE EMPLOYER IN EITHER CASE AGREED TO A
VOLUNTARY SETTLEMENT OF THE DISPUTE AND THEN RENEGED.  AS NOTED, WE
RESERVED IN GISSEL THE QUESTIONS "WHETHER, ABSENT ELECTION INTERFERENCE
BY AN EMPLOYER'S UNFAIR LABOR PRACTICES, HE MAY OBTAIN AN ELECTION ONLY
IF HE PETITIONS FOR ONE HIMSELF; WHETHER, IF HE DOES NOT, HE MUST
BARGAIN WITH A CARD MAJORITY IF THE UNION CHOOSES NOT TO SEEK AN
ELECTION; AND WHETHER, IN THE LATTER SITUATION, HE IS BOUND BY THE
BOARD'S ULTIMATE DETERMINATION OF THE CARD RESULTS REGARDLESS OF HIS
EARLIER GOOD FAITH DOUBTS, OR WHETHER HE CAN STILL INSIST ON A UNION
SOUGHT ELECTION IF HE MAKES AN AFFIRMATIVE SHOWING OF HIS POSITIVE
REASONS FOR BELIEVING THERE IS A REPRESENTATION DISPUTE."  ID., AT 601
N. 18. 

WE RECOGNIZED IN GISSEL THAT WHILE THE ELECTION PROCESS HAD
ACKNOWLEDGED SUPERIORITY IN ASCERTAINING WHETHER A UNION HAS MAJORITY
SUPPORT, CARDS MAY "ADEQUATELY REFLECT EMPLOYEE SENTIMENT."  ID., AT
603. 

GENERALIZATION ARE DIFFICULT; AND IT IS URGED BY THE UNIONS THAT
ONLY THE PRECISE FACTS SHOULD DISPOSE OF CONCRETE CASES.  AS WE SAID,
HOWEVER, IN GISSEL, THE BOARD HAD LARGELY ABANDONED ITS EARLIER TEST
THAT THE EMPLOYER'S REFUSAL TO BARGAIN WAS WARRANTED, IF HE HAD A GOOD
FAITH DOUBT THAT THE UNION REPRESENTED A MAJORITY.  A DIFFERENT
APPROACH WAS INDICATED.  WE SAID: 

"(AN EMPLOYER IS NOT OBLIGATED TO ACCEPT A CARD CHECK AS PROOF OF
MAJORITY STATUS, UNDER THE BOARD'S CURRENT PRACTICE, AND HE IS NOT
REQUIRED TO JUSTIFY HIS INSISTENCE ON AN ELECTION BY MAKING HIS OWN
INVESTIGATION OF EMPLOYEE SENTIMENT AND SHOWING AFFIRMATIVE REASONS FOR
DOUBTING THE MAJORITY STATUS.  SEE AARON BROTHERS, 158 N.L.R.B. 1077,
1078.  IF HE DOES MAKE AN INVESTIGATION, THE BOARD'S RECENT CASES
INDICATE THAT REASONABLE POLLING IN THIS REGARD WILL NOT ALWAYS BE
TERMED VIOLATIVE OF 8(A)(1) IF CONDUCTED IN ACCORDANCE WITH THE
REQUIREMENTS SET OUT IN STRUKSNES CONSTRUCTION CO., 165 N.L.R.B.
(1062), 65 L.R.R.M. 1385 (1967).  AND EVEN IF AN EMPLOYER'S LIMITED
INTERROGATION IS FOUND VIOLATIVE OF THE ACT, IT MIGHT NOT BE SERIOUS
ENOUGH TO CALL FOR A BARGAINING ORDER.  SEE AARON BROTHERS, SUPRA;
HAMMOND & IRVING, INC., 154 N.L.R.B. 1071 (1965).  AS NOTED ABOVE, THE
BOARD HAS EMPHASIZED THAT NOT 'ANY EMPLOYER CONDUCT FOUND VIOLATIVE OF
NECESSARILY SUPPORT A REFUSAL-TO-BARGAIN FINDING,' AARON BROTHERS,
SUPRA, AT 1079."  395 U.S.,AT 609 - 610. 

IN THE PRESENT CASES THE BOARD FOUND THAT THE EMPLOYERS "SHOULD NOT
BE FOUND GUILTY OF A VIOLATION OF SECTION 8(A)(5) SOLELY UPON THE BASIS
OF (THEIR) REFUSAL TO ACCEPT EVIDENCE OF MAJORITY STATUS OTHER THAN THE
RESULTS OF A BOARD ELECTION."  190 N.L.R.B.,AT 721; SEE 198 N.L.R.B.,AT
. . . . THE QUESTION WHETHER THE EMPLOYERS HAD GOOD REASONS OR POOR
REASONS WAS NOT DEEMED RELEVANT TO THE INQUIRY.  THE COURT OF APPEALS
CONCLUDED THAT IF THE EMPLOYER HAD DOUBTS AS TO A UNION'S MAJORITY
STATUS, IT COULD AND SHOULD TEST OUT ITS DOUBTS BY PETITIONING FOR AN
ELECTION.  IT SAID: 

     "WHILE WE HAVE INDICATED THAT CARDS ALONE, OR RECOGNITIONAL

  STRIKES AND AMBIGUOUS UTTERANCES OF THE EMPLOYER, DO NOT

  NECESSARILY PROVIDE SUCH 'CONVINCING EVIDENCE OF MAJORITY

  SUPPORT' SO AS TO REQUIRE A BARGAINING ORDER, THEY CERTAINLY

  CREATE A SUFFICIENT PROBABILITY OF MAJORITY SUPPORT AS TO REQUIRE

  AN EMPLOYER ASSERTING A DOUBT OF MAJORITY STATUS TO RESOLVE THE

 POSSIBILITY THROUGH A PETITION FOR AN ELECTION, IF HE IS TO AVOID

  BOTH ANY DUTY TO BARGAIN, AND ANY INQUIRY INTO THE ACTUALITY OF

  HIS DOUBT.  159 U.S.APP.D.C.,AT 240, 487 F.2D,AT 1111. 

TO TAKE THE BOARD'S POSITION IS NOT TO SAY THAT AUTHORIZATION CARDS
ARE WHOLLY UNRELIABLE AS AN INDICATION OF EMPLOYEE SUPPORT OF THE
UNION.  AN EMPLOYER CONCEDEDLY MAY HAVE VALID OBJECTIONS TO RECOGNIZING
A UNION ON THAT BASIS.  HIS OBJECTION TO CARDS MAY, OF COURSE, MASK HIS
OPPOSITION TO UNIONS.  ON THE OTHER HAND HE MAY HAVE RATIONAL, GOOD
FAITH GROUNDS FOR DISTRUSTING AUTHORIZATION CARDS IN A GIVEN
SITUATION.  HE MAY BE CONVINCED THAT THE FACT THAT A MAJORITY OF THE
EMPLOYEES STRIKE AND PICKET DOES NOT NECESSARILY ESTABLISH THAT THEY
DESIRE THE PARTICULAR UNION AS THEIR REPRESENTATIVE.  FEAR MAY INDEED
PREVENT SOME FROM CROSSING A PICKET LINE; OR SYMPATHY FOR STRIKERS, NOT
THE DESIRE TO HAVE THE PARTICULAR UNION IN THE SADDLE, MAY INFLUENCE
OTHERS.  THESE FACTORS MAKE DIFFICULT AN EXAMINATION OF THE EMPLOYER'S
MOTIVE TO ASCERTAIN WHETHER IT WAS IN GOOD FAITH.  TO ENTER THAT DOMAIN
IS TO REJECT THE APPROVAL BY GISSEL OF THE RETREAT WHICH THE BOARD TOOK
FROM ITS "GOOD FAITH"  INQUIRIES. 

THE UNION WHICH IS FACED WITH AN UNWILLING EMPLOYER HAS TWO
ALTERNATIVE REMEDIES UNDER THE BOARD'S DECISION IN THE INSTANT CASES. 
IT CAN FILE FOR AN ELECTION; OR IT CAN PRESS UNFAIR LABOR PRACTICE
CHARGES AGAINST THE EMPLOYER UNDER GISSEL.  THE LATTER ALTERNATIVE
PROMISES TO CONSUME MUCH TIME.  IN LINDEN THE TIME BETWEEN FILING THE
CHARGE AND THE BOARD'S RULING WAS ABOUT 4 1/2 YEARS; IN WILDER, ABOUT 6
1/2 YEARS.  THE BOARD'S EXPERIENCE INDICATES THAT THE MEDIAN TIME IN A
CONTESTED CASE IS 388 DAYS.  GISSEL, 395 U.S.,AT 611 N. 30.  ON THE
OTHER HAND THE MEDIAN TIME BETWEEN THE FILING OF THE PETITION FOR AN
ELECTION AND THE DECISION OF THE REGIONAL DIRECTOR IS ABOUT 45 DAYS. 
/5/  IN TERMS OF GETTING ON WITH THE PROBLEMS OF INAUGURATING REGIMES
OF INDUSTRIAL PEACE, THE POLICY OF ENCOURAGING SECRET ELECTIONS UNDER
THE ACT IS FAVORED.  THE QUESTION REMAINS--SHOULD THE BURDEN BE ON THE
UNION TO ASK FOR AN ELECTION OR SHOULD IT BE THE RESPONSIBILITY OF THE
EMPLOYER? 

THE COURT OF APPEALS CONCLUDED THAT SINCE CONGRESS IN 1947
AUTHORIZED EMPLOYERS TO FILE THEIR OWN REPRESENTATION PETITIONS BY
ENACTING 9(C)(1)(B), /6/  THE BURDEN WAS ON THEM.  BUT THE HISTORY OF
THAT PROVISION INDICATES IT WAS AIMED AT ELIMINATING THE DISCRIMINATION
AGAINST EMPLOYERS WHICH HAD PREVIOUSLY EXISTED UNDER THE BOARD'S PRIOR
RULES, PERMITTING EMPLOYERS TO PETITION FOR AN ELECTION ONLY WHEN
CONFRONTED WITH CLAIMS BY TWO OR MORE UNIONS.  /7/  THERE IS NO
SUGGESTION THAT CONGRESS WANTED TO PLACE THE BURDEN OF GETTING A SECRET
ELECTION ON THE EMPLOYER. 

   "TODAY AN EMPLOYER IS FACED WITH THE SITUATION.  A MAN COMES

  INTO HIS OFFICE AND SAYS, 'I REPRESENT YOUR EMPLOYEES.  SIGN T IS

  AGREEMENT, OR WE STRIKE TOMORROW.'  SUCH INSTANCES HAVE OCCURRED

  ALL OVER THE UNITED STATES.  THE EMPLOYER HAS NO WAY IN WHICH TO

  DETERMINE WHETHER THIS MAN REALLY DOES REPRESENT HIS EMPLOYEES OR

  DOES NOT.  THE BILL GIVES HIM THE RIGHT TO GO TO THE BOARD UNDER

  THOSE CIRCUMSTANCES, AND SAY, 'I WANT AN ELECTION.  I WANT TO

KNOW WHO IS THE BARGAINING AGENT FOR MY EMPLOYEES.'"  93

CONG.REC.  3838 (1947) (REMARKS OF SENATOR TAFT). 

OUR PROBLEM IS NOT ONE OF PICKING FAVORITES BUT OF TRYING TO FIND
THE CONGRESSIONAL PURPOSE BY EXAMINING THE STATUTORY AND ADMINISTRATIVE
INTERPRETATIONS THAT INCLINE ONE WAY OR ANOTHER.  LARGE ISSUES RIDE ON
WHO TAKES THE INITIATIVE.  A COMMON ISSUE IS, WHAT SHOULD BE THE
REPRESENTATIVE UNIT?  IN WILDER THE EMPLOYER AT FIRST TOOK THE POSITION
THAT THE UNIT SHOULD BE ONE OF 30 EMPLOYEES.  IF IT WERE 18, AS THE
UNION CLAIMED (OR EVEN 25 AS THE EMPLOYER LATER ARGUED), THE UNION WITH
ITS 13 AUTHORIZATION CARDS (ASSUMING THEM TO BE VALID) WOULD HAVE A
MAJORITY.  IF THE UNIT WERE 30, THE UNION WOULD BE OUT OF BUSINESS. 

INDIVIDUALS OR UNIONS "TO BE RECOGNIZED AS THE REPRESENTATIVE DEFINED
IN 9(A)."  /8/  THAT QUESTION OF REPRESENTATION IS RAISED ONLY BY A
CLAIM THAT THE APPLICANT REPRESENTS A MAJORITY OF EMPLOYEES, "IN A UNIT
APPROPRIATE FOR SUCH PURPOSES."  9(A).  IF THERE IS A SIGNIFICANT
DISCREPANCY BETWEEN THE UNIT WHICH THE EMPLOYER WANTS AND THE UNIT FOR
WHICH THE UNION ASKED RECOGNITION, THE BOARD WILL DISMISS THE
EMPLOYER'S PETITION.  AEROJET-GENERAL CORP., 185 N.L.R.B. 794 (1970);
BOWMAN BLDG. PRODUCTS DIV., 170 N.L.R.B. 312 (1968); AMPEREX ELECTRONIC
CORP., 109 N.L.R.B. 353 (1954); WM. WOOD BAKERY, INC., 97 N.L.R.B. 122
(1951).  IN THAT EVENT THE UNION, IF IT DESIRED THE SMALLER UNIT, WOULD
HAVE TO FILE ITS OWN PETITION, LEAVING THE EMPLOYER FREE TO CONTEST THE
APPROPRIATENESS OF THAT UNIT.  THE COURT OF APPEALS THOUGHT THAT IF THE
EMPLOYER WERE REQUIRED TO PETITION THE BOARD FOR AN ELECTION, THE
LITIGABLE ISSUES WOULD BE REDUCED.  THE RECURRING CONFLICT OVER WHAT
SHOULD BE THE APPROPRIATE BARGAINING UNIT, COUPLED WITH THE FACT THAT
IF THE EMPLOYER ASKS FOR A UNIT WHICH THE UNION OPPOSES HIS ELECTION
PETITION IS DISMISSED, IS ANSWER ENOUGH. 

THE BOARD HAS AT LEAST SOME EXPERTISE IN THESE MATTERS AND ITS
JUDGEMENT IS THAT AN EMPLOYER'S PETITION FOR AN ELECTION, THOUGH
PERMISSIBLE, IS NOT THE REQUIRED COURSE.  IT POINTS OUT IN ITS BRIEF
HERE THAT AN EMPLOYER WANTING TO GAIN DELAY CAN DRAW A PETITION TO
ELICIT PROTESTS BY THE UNION, AND THE THOUGHT THAT AN EMPLOYER PETITION
WOULD OBVIATE LITIGATION OVER THE SUFFICIENCY OF THE UNION'S SHOWING OF
INTEREST IS IN ITS PURVIEW APPARENTLY NOT WELL TAKEN.  A UNION PETITION
TO BE SURE MUST BE BACKED BY A 30% SHOWING OF EMPLOYEE INTEREST.  BUT
THE SUFFICIENCY OF SUCH A SHOWING IS NOT LITIGABLE BY THE PARTIES. 
/9/ 

IN LIGHT OF THE STATUTORY SCHEME AND THE PRACTICAL ADMINISTRATIVE
PROCEDURAL QUESTIONS INVOLVED, WE CANNOT SAY THAT THE BOARD'S DECISION
THAT THE UNION SHOULD GO FORWARD AND ASK FOR AN ELECTION ON THE
EMPLOYER'S REFUSAL TO RECOGNIZE THE AUTHORIZATION CARDS WAS ARBITRARY
AND CAPRICIOUS OR AN ABUSE OF DISCRETION. 

IN SUM, WE SUSTAIN THE BOARD IN HOLDING THAT, UNLESS AN EMPLOYER HAS
ENGAGED IN AN UNFAIR LABOR PRACTICE THAT IMPAIRS THE ELECTORAL PROCESS,
/10/  A UNION WITH AUTHORIZATION CARDS PURPORTING TO REPRESENT A
MAJORITY OF THE EMPLOYEES, WHICH IS REFUSED RECOGNITION, HAS THE BURDEN
OF TAKING THE NEXT STEP IN INVOKING THE BOARD'S ELECTION PROCEDURE. 

 REVERSED. 

/1/  AT THE CONCLUSION OF THE STRIKE PETITIONER REFUSED TO REINSTATE
TWO EMPLOYEES IT ALLEGED TO BE SUPERVISORS AND THEREFORE UNPROTECTED BY
THE ACT.  THE BOARD FOUND THAT TO BE AN UNFAIR LABOR PRACTICE. 
THEREUPON PETITIONER REINSTATED THE TWO EMPLOYEES AND THIS ISSUE WAS
NOT TENDERED TO THE COURT BELOW.  159 U.S.APP.D.C. 228, 234, 487 F.2D
1099, 1105 (1973). 

/2/  SECTION 8(A)(5) PROVIDES:     "(A) IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN EMPLOYER--

        .          .          .          . 

"(5) TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A)."  49 STAT.
453, AS AMENDED, 61 STAT. 141, 29 U.S.C. 158(A)(5). 

/3/  SEE N. 4, INFRA. 

/4/  THE LONG SERIES OF RULINGS IS DESCRIBED IN THE OPINION OF THE
COURT OF APPEALS, 159 U.S.APP.D.C.,AT 229 - 232, 487 F.2D,AT 1100 -
1103.  WILDER DID NOT PETITION FOR CERTIORARI.  NO. 73 - 1234, WHICH WE
GRANTED, IS THE PETITION OF THE BOARD, BUT FOR CONVENIENCE IT IS
REFERRED TO HEREIN AS THE WILDER CASE. 

/5/  THIRTY-SEVENTH ANNUAL REPORT OF THE NATIONAL LABOR RELATIONS
BOARD 13 (1972). 

/6/  SECTION 9(C)(1)(B) PROVIDES: 

"(1) WHENEVER A PETITION SHALL HAVE BEEN FILED, IN ACCORDANCE WITH
SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE BOARD--

        .          .          . . 

"(B) BY AN EMPLOYER, ALLEGING THAT ONE OR MORE INDIVIDUALS OR LABOR
ORGANIZATIONS HAVE PRESENTED TO HIM A CLAIM TO BE RECOGNIZED AS THE
REPRESENTATIVE DEFINED IN SECTION 9(A); 

"THE BOARD SHALL INVESTIGATE SUCH PETITION AND IF IT HAS REASONABLE
CAUSE TO BELIEVE THAT A QUESTION OF REPRESENTATION AFFECTING COMMERCE
EXISTS SHALL PROVIDE FOR AN APPROPRIATE HEARING UPON DUE NOTICE.  SUCH
HEARING MAY BE CONDUCTED BY AN OFFICER OR EMPLOYEE OF THE REGIONAL
OFFICE, WHO SHALL NOT MAKE ANY RECOMMENDATIONS WITH RESPECT THERETO. 
IF THE BOARD FINDS UPON THE RECORD OF SUCH HEARING THAT SUCH A QUESTION
OF REPRESENTATION EXISTS, IT SHALL DIRECT AN ELECTION BY SECRET BALLOT
AND SHALL CERTIFY THE RESULTS THEREOF."  61 STAT. 144, 29 U.S.C.
159(C)(1)(B). 

/7/  S. REP. NO. 105, 80TH CONG., 1ST SESS., 10 - 11 (1947); 93
CONG.REC.  3838 (1947). 

/8/  SECTION 9(A) PROVIDES: 

"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.  . . ."  49 STAT. 453, AS AMENDED, 61
STAT. 143, 29 U.S.C.  159(A). 

/9/  NLRB V. SAVAIR MFG. CO., 414 U.S. 270, 287 N. 6 (1973) (WHITE,
J., DISSENTING). 

/10/  WE DO NOT REACH THE QUESTION WHETHER THE SAME RESULT OBTAINS
IF THE EMPLOYER BREACHES HIS AGREEMENT TO PERMIT MAJORITY STATUS TO BE
DETERMINED BY MEANS OTHER THAN A BOARD ELECTION.  SEE SNOW & SONS, 134
N.L.R.B. 709 (1961), ENF'D, 308 F.2D 687 (CA9 1962).  IN THE INSTANT
CASES THE BOARD SAID THAT THE EMPLOYERS AND THE UNIONS "NEVER
VOLUNTARILY AGREED UPON ANY MUTUALLY ACCEPTABLE AND LEGALLY PERMISSIBLE
MEANS, OTHER THAN A BOARD-CONDUCTED ELECTION, FOR RESOLVING THE ISSUE
OF UNION MAJORITY STATUS."  190 N.L.R.B., AT 721; SEE 198 N.L.R.B., AT
998. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE WHITE, MR. JUSTICE
MARSHALL, AND MR. JUSTICE POWELL JOIN, DISSENTING. 

UNDER A RECENTLY ADOPTED BOARD POLICY, AN EMPLOYER WHO DOES NOT
COMMIT INDEPENDENT UNFAIR LABOR PRACTICES PREJUDICING THE HOLDING OF A
FAIR ELECTION HAS AN ABSOLUTE RIGHT TO REFUSE TO BARGAIN WITH A UNION
SELECTED BY A MAJORITY OF HIS EMPLOYEES UNTIL THAT UNION PETITIONS FOR
AND WINS A BOARD-SUPERVISED ELECTION.  I CANNOT AGREE WITH THE COURT'S
CONCLUSION THAT THIS BOARD POLICY CONSTITUTES A PERMISSIBLE
INTERPRETATION OF 8(A)(5) AND 9(A) OF THE ACT.  /1/  ACCORDINGLY, I
WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS REMANDING THE CASE TO
THE BOARD FOR FURTHER PROCEEDINGS, ALTHOUGH MY VIEWS ARE SOMEWHAT AT
VARIANCE WITH THOSE EXPRESSED IN THE COURT OF APPEALS' OPINION. 

BARGAINING REPRESENTATIVE SHALL BE THE UNION "DESIGNATED OR SELECTED"
BY A MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE UNIT.  NEITHER 9(A)
NOR 8(A)(5), WHICH MAKES IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO
REFUSE TO BARGAIN WITH THE REPRESENTATIVE OF HIS EMPLOYEES, SPECIFIES
HOW THAT REPRESENTATIVE IS TO BE CHOSEN.  THE LANGUAGE OF THE ACT THUS
SEEMS PURPOSEFULLY DESIGNED TO IMPOSE A DUTY UPON AN EMPLOYER TO
BARGAIN WHENEVER THE UNION REPRESENTATIVE PRESENTS CONVINCING EVIDENCE
OF MAJORITY SUPPORT, REGARDLESS OF THE METHOD BY WHICH THAT SUPPORT IS
DEMONSTRATED.  AND BOTH THE BOARD AND THIS COURT HAVE IN THE PAST
CONSISTENTLY INTERPRETED 8(A)(5) AND 9(A) TO MEAN EXACTLY THAT.  A
"UNION DID NOT HAVE TO BE CERTIFIED AS THE WINNER OF A BOARD ELECTION
TO INVOKE A BARGAINING OBLIGATION; IT COULD ESTABLISH MAJORITY STATUS
BY OTHER MEANS UNDER THE UNFAIR LABOR PRACTICE PROVISION OF 8(A)(5)--BY
SHOWING CONVINCING SUPPORT, FOR INSTANCE, BY A UNION-CALLED STRIKE OR
STRIKE VOTE, OR AS HERE, BY POSSESSION OF CARDS SIGNED BY A MAJORITY OF
THE EMPLOYEES AUTHORIZING THE UNION TO REPRESENT THEM FOR COLLECTIVE
BARGAINING PURPOSES."  NLRB V. GISSEL PACKING CO., 395 U.S. 575, 597
(FOOTNOTE OMITTED).  /2/ 

AS THE COURT RECOGNIZED IN GISSEL, THE 1947 TAFT-HARTLEY AMENDMENTS
STRENGTHEN THIS INTERPRETATION OF THE ACT.  ONE EARLY VERSION OF THE
HOUSE BILL WOULD HAVE AMENDED THE ACT TO PERMIT THE BOARD TO FIND AN
EMPLOYER UNFAIR LABOR PRACTICE FOR REFUSING TO BARGAIN WITH A UNION
ONLY IF THE UNION WAS "CURRENTLY RECOGNIZED BY THE EMPLOYER OR
CERTIFIED AS SUCH (THROUGH AN ELECTION) UNDER SECTION 9."  SECTION
8(A)(5) OF H. R. 3020, 80TH CONG., 1ST SESS.  THE PROPOSED CHANGE,
WHICH WOULD HAVE ELIMINATED ANY METHOD OF REQUIRING EMPLOYER
RECOGNITION OF A UNION OTHER THAN A BOARD-SUPERVISED ELECTION, WAS
REJECTED IN CONFERENCE.  H. R. CONG. REP. NO. 510, 80TH CONG., 1ST
SESS., 41.  AFTER REJECTION OF THE PROPOSED HOUSE AMENDMENT, THE HOUSE
CONFERENCE REPORT EXPLICITY STATED THAT 8(A)(5) WAS INTENDED TO FOLLOW
THE PROVISIONS OF "EXISTING LAW."  IBID.  AND "EXISTING LAW"
UNEQUIVOCALLY RECOGNIZED THAT A UNION COULD ESTABLISH MAJORITY STATUS
AND THEREBY IMPOSE A BARGAINING OBLIGATION ON AN UNWILLING EMPLOYER BY
MEANS OTHER THAN PETITIONING FOR AND WINNING A BOARD-SUPERVISED
ELECTION.  NLRB V. GISSEL PACKING CO., SUPRA, AT 596 - 598. 

THE 1947 AMENDMENTS, HOWEVER, DID PROVIDE AN ALTERNATIVE TO
IMMEDIATE UNION RECOGNITION FOR AN EMPLOYER FACED WITH A UNION DEMAND
TO BARGAIN ON BEHALF OF HIS EMPLOYEES.  SECTION 9(C)(1)(B), ADDED TO
THE ACT IN 1947, PROVIDES THAT AN EMPLOYER, ALLEGING THAT ONE OR MORE
INDIVIDUALS OR LABOR ORGANIZATIONS HAVE PRESENTED A CLAIM TO BE
RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE OF HIS EMPLOYEES, MAY FILE A
PETITION FOR A BOARD-SUPERVISED REPRESENTATION ELECTION. 

THIS SECTION, TOGETHER WITH 8(A)(5) AND 9(A), PROVIDES CLEAR
CONGRESSIONAL DIRECTION AS TO THE PROPER APPROACH TO THE SITUATION
BEFORE US.  WHEN AN EMPLOYER IS FACED WITH A DEMAND FOR RECOGNITION BY
A UNION THAT HAS PRESENTED-CONVINCING EVIDENCE OF MAJORITY SUPPORT, HE
MAY ELECT TO FOLLOW ONE OF FOUR ALTERNATIVES.  FIRST, HE IS FREE TO
RECOGNIZE THE UNION AND THEREBY SATISFY HIS 8(A)(5) OBLIGATION TO
BARGAIN WITH THE REPRESENTATIVES "DESIGNATED OR SELECTED" BY HIS
EMPLOYEES.  /3/  SECOND, HE MAY PETITION FOR A BORAD-SUPERVISED
ELECTION, PURSUANT TO 9(C)(1)(B).  NLRB V. GISSEL PACKING CO., SUPRA,
AT 599.  THIRD, RATHER THAN FILE HIS OWN ELECTION PETITION, THE
EMPLOYER CAN AGREE TO BE BOUND BY THE RESULTS OF AN EXPEDITED CONSENT
ELECTION ORDERED AFTER THE FILING OF A UNION ELECTION PETITION.  SEE 29
CFR 102.62.  FINALLY, THE EMPLOYER CAN REFUSE TO RECOGNIZE THE UNION,
DESPITE ITS CONVINCING EVIDENCE OF MAJORITY SUPPORT, AND ALSO REFUSE
EITHER TO PETITION FOR AN ELECTION OR TO CONSENT TO A UNION-REQUESTED
ELECTION.  IN THIS EVENT, HOWEVER, THE ACT CLEARLY PROVIDES THAT THE
UNION MAY CHARGE THE EMPLOYER WITH AN UNFAIR LABOR PRACTICE UNDER
8(A)(5) FOR REFUSING TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES
OF HIS EMPLOYEES.  IF THE GENERAL COUNSEL ISSUES A COMPLAINT AND THE
BOARD DETERMINES THAT THE UNION IN FACT REPRESENTS A MAJORITY OF THE
EMPLOYEES, THE BOARD MUST ISSUE AN ORDER DIRECTING THE EMPLOYER TO
BARGAIN WITH THE UNION.  SEE, E.G., NLRB V. DAHLSTROM METALLIC DOOR
CO., 112 F.2D 756; CF. NLRB V. GISSEL PACKING CO., SUPRA, AT 595 -
600. 

THE COURT OFFERS TWO JUSTIFICATIONS FOR ITS APPROVAL OF THE NEW
BOARD PRACTICE WHICH, DISREGARDING THE CLEAR LANGUAGE OF 8(A)(5) AND
9(A), REQUIRES AN EMPLOYER TO BARGAIN ONLY WITH A UNION CERTIFIED AS
BARGAINING REPRESENTATIVE AFTER A BOARD-SUPERVISED ELECTION CONDUCTED
UPON THE PETITION OF THE UNION.  /4/ 

FIRST, IT IS SUGGESTED THAT TO REQUIRE THE BOARD UNDER SOME
CIRCUMSTANCES TO FIND A 8(A)(5) VIOLATION WHEN AN EMPLOYER REFUSES TO
BARGAIN WITH THE NONCERTIFIED UNION SUPPORTED BY A MAJORITY OF HIS
EMPLOYEES WOULD COMPEL THE BOARD TO RE-ENTER THE DOMAIN OF SUBJECTIVE
"GOOD FAITH" INQUIRIES.  ANTE, AT 306.  THIS FEAR IS UNWARRANTED.  IT
IS TRUE THAT EARLY IN THE ADMINISTRATION OF THE ACT IT WAS HELD THAT AN
EMPLOYER COULD LAWFULLY REFUSE TO BARGAIN IF HE HAD A GOOD-FAITH DOUBTS
AS TO THE UNION'S MAJORITY STATUS, EVEN IF IN FACT THE UNION DID
REPRESENT A MAJORITY OF THE EMPLOYEES.  SEE NLRB V. GISSEL PACKING CO.,
SUPRA, AT 597 N. 11; NLRB V. REMINGTON RAND, INC., 94 F.2D 862, 868. 
BUT IT WAS RECOGNIZED AT THE SAME TIME THAT A UNION COULD PRESENT
"CONVINCING EVIDENCE OF MAJORITY SUPPORT" THAT "COULD NOT IN GOOD FAITH
BE IGNORED."  NLRB V. DAHLSTROM METALLIC DOOR CO., SUPRA, AT 757; SEE
NLRB V. GISSEL PACKING CO., SUPRA, AT 596; NLRB V. REMINGTON RAND,
INC., SUPRA, AT 868. 

WITHIN BROAD LIMITS IMPOSED BY THE ACT ITSELF, THE BOARD MAY USE ITS
UNDERSTANDING OF THE POLICIES AND PRACTICAL CONSIDERATIONS OF THE ACT'S
ADMINISTRATION TO DETERMINE THE CIRCUMSTANCES UNDER WHICH AN EMPLOYER
MUST TAKE EVIDENCE OF MAJORITY SUPPORT AS "CONVINCING."  CF. NLRB V.
INSURANCE AGENTS, 361 U.S. 477, 499; NLRB V. TRUCK DRIVERS UNION, 353
U.S. 87, 96.  THE ACT IN NO WAY REQUIRES THE BOARD TO DEFINE
"CONVINCING EVIDENCE" IN A MANNER THAT REINTRODUCES A SUBJECTIVE TEST
OF THE EMPLOYER'S GOOD FAITH IN REFUSING TO BARGAIN WITH THE UNION.  IF
THE BOARD CONTINUES TO BELIEVE, AS IT HAS IN THE RECENT PAST, THAT IT
IS UNWORKABLE TO ADOPT ANY STANDARD FOR DETERMINING WHEN AN EMPLOYER
HAS BREACHED HIS DUTY TO BARGAIN THAT INCORPORATES A SUBJECTIVE
ELEMENT, SEE NLRB V. GISSEL PACKING CO., 395 U.S.,AT 592 - 594, IT MAY
DEFINE "CONVINCING EVIDENCE OF MAJORITY SUPPORT" SOLELY BY REFERENCE TO
OBJECTIVE CRITERIA--FOR EXAMPLE, BY REFERENCE TO "A UNION-CALLED STRIKE
OR STRIKE VOTE, OR, AS HERE, BY POSSESSION OF CARDS SIGNED BY A
MAJORITY OF THE EMPLOYEES.  . . ."  ID., AT 597.  /5/ 

EVEN WITH ADOPTION OF SUCH AN OBJECTIVE STANDARD FOR MEASURING
"CONVINCING EVIDENCE OF MAJORITY SUPPORT," THE EMPLOYER'S "SUBJECTIVE"
DOUBTS WOULD BE ADEQUATELY SAFEGUARDED BY 9(C)(1)(B)'S ASSURANCE OF THE
RIGHT TO FILE HIS OWN PETITION FOR AN ELECTION.  DESPITE THE BOARD'S
BROAD DISCRETION IN THIS AREA, HOWEVER, THE ACT SIMPLY DOES NOT PERMIT
THE BOARD TO ADOPT A RULE THAT AVOIDS SUBJECTIVE INQUIRIES BY
ELIMINATING ENTIRELY ALL INQUIRIES INTO AN EMPLOYER'S OBLIGATION TO
BARGAIN WITH A NONCERTIFIED UNION SELECTED BY A MAJORITY OF HIS
EMPLOYEES. 

THE SECOND GROUND UPON WHICH THE COURT JUSTIFIES ITS APPROVAL OF THE
BOARD'S NEW PRACTICE IS THAT IT SERVES TO REMOVE FROM THE EMPLOYER THE
BURDEN OF OBTAINING A BOARD-SUPERVISED ELECTION.  ANTE, AT 307. 
ALTHOUGH I AGREE WITH THE COURT THAT IT WOULD BE IMPROPER TO IMPOSE
SUCH AN OBLIGATION ON AN EMPLOYER, THE BOARD'S NEW POLICY IS NOT
NECESSARY TO ELIMINATE SUCH A BURDEN. 

THE ONLY EMPLOYER OBLIGATION RELEVANT TO THIS CASE, APART FROM THE
REQUIREMENT THAT THE EMPLOYER NOT COMMIT INDEPENDENT UNFAIR LABOR
PRACTICES THAT WOULD PREJUDICE THE HOLDING OF A FAIR ELECTION, IS THE
ONE IMPOSED BY 8(A)(5) AND 9(A) OF THE ACT; AN EMPLOYER HAS A DUTY TO
BARGAIN COLLECTIVELY WITH THE REPRESENTATIVE DESIGNATED OR SELECTED BY
HIS EMPLOYEES.  WHEN AN EMPLOYER IS CONFRONTED WITH "CONVINCING
EVIDENCE OF MAJORITY SUPPORT," HE HAS THE OPTION OF PETITIONING FOR AN
ELECTION OR CONSENTING TO AN EXPEDITED UNION-PETITIONED ELECTION.  AS
THE COURT EXPLAINS, 9(C)(1)(B) DOES NOT REQUIRE THE EMPLOYER TO
EXERCISE THIS OPTION.  IF HE DOES NOT, HOWEVER, AND IF HE DOES NOT
VOLUNTARILY RECOGNIZE THE UNION, HE MUST TAKE THE RISK THAT HIS CONDUCT
WILL BE FOUND BY THE BOARD TO CONSTITUTE A VIOLATION OF HIS 8(A)(5)
DUTY TO BARGAIN.  IN SHORT, PETITIONING FOR AN ELECTION IS NOT AN
EMPLOYER OBLIGATION; IT IS A DEVICE CREATED BY CONGRESS FOR THE
EMPLOYER'S SELF-PROTECTION, MUCH AS CONGRESS GAVE UNIONS THE RIGHT TO
PETITION FOR ELECTIONS TO ESTABLISH THEIR MAJORITY STATUS BUT
DELIBERATELY CHOSE NOT TO REQUIRE A UNION TO SEEK AN ELECTION BEFORE IT
COULD IMPOSE A BARGAINING OBLIGATION ON AN UNWILLING EMPLOYER.  NLRB V.
GISSEL PACKING CO., SUPRA, AT 598 - 599.  /6/ 

THE LANGUAGE AND HISTORY OF THE ACT CLEARLY INDICATE THAT CONGRESS
INTENDED TO IMPOSE UPON AN EMPLOYER THE DUTY TO BARGAIN WITH A UNION
THAT HAS PRESENTED CONVINCING EVIDENCE OF MAJORITY SUPPORT, EVEN THOUGH
THE UNION HAS NOT PETITIONED FOR AND WON A BOARD-SUPERVISED ELECTION. 
"IT IS NOT NECESSARY FOR US TO JUSTIFY THE POLICY OF CONGRESS.  IT IS
ENOUGH THAT WE FIND IT IN THE STATUTE.  THAT POLICY CANNOT BE DEFEATED
BY THE BOARD'S POLICY."  COLGATE-PALMOLIVE-PEET CO. V. NLRB, 338 U.S.
355, 363.  ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS REMANDING THE CASE TO THE BOARD, BUT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THE VIEWS EXPRESSED IN THIS OPINION. 

/1/  SECTION 9(A) OF THE ACT, 49 STAT. 453, AS AMENDED, 61 STAT.
143, 29 U.S.C. 159(A), PROVIDES THAT "(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.  . . ."  SECTION
8(A)(5), 29 U.S.C. 158(A)(5), MAKES IT AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER "TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A)."     /2/  FOR
EXAMPLE, IN MINE WORKERS V. ARKANSAS FLOORING CO., 351 U.S. 62, 69, THE
COURT STATED THAT WHERE THE UNION HAD OBTAINED SIGNED AUTHORIZATION
CARDS FROM A MAJORITY OF THE EMPLOYEES, DENIAL OF RECOGNITION OF THE
UNION BY THE EMPLOYER WOULD HAVE VIOLATED 8(A)(5) IN THE ABSENCE OF ANY
BONA FIDE DISPUTE AS TO THE EXISTENCE OF THE REQUIRED MAJORITY OF
ELIGIBLE EMPLOYEES. 

/3/  IF DESPITE ITS CONVINCING EVIDENCE OF MAJORITY SUPPORT THE
UNION IN FACT HAS NOT ATTAINED MAJORITY STATUS, A GRANT OF EXCLUSIVE
RECOGNITION TO THE MINORITY UNION BY THE EMPLOYER WOULD CONSTITUTE
UNLAWFUL SUPPORT IN VIOLATION OF 8(A)(1) AND 8(A)(2) OF THE ACT. 
GARMENT WORKERS V. NLRB, 366 U.S. 731, 737 - 738.  THIS RESULT,
HOWEVER, IMPOSES NO REAL HARDSHIP ON THE EMPLOYER OR THE UNION SINCE IT
MERELY REQUIRES THAT RECOGNITION BE WITHHELD UNTIL A BOARD-CONDUCTED
ELECTION RESULTS IN MAJORITY SELECTION OF A REPRESENTATIVE.  ID., AT
739.  IN ADDITION, AN EMPLOYER CONCERNED ABOUT THE POSSIBILITY OF
RECOGNIZING A MINORITY UNION MAY ALWAYS PETITION FOR AN ELECTION
PURSUANT TO 9(C)(1)(B) PRIOR TO RECOGNITION. 

/4/  THE BOARD, OF COURSE, CONTINUES TO PERMIT AN EMPLOYER
VOLUNTARILY TO RECOGNIZE A NONCERTIFIED UNION SUPPORTED BY A MAJORITY
OF HIS EMPLOYEES.  BUT UNDER THE BOARD RULE APPROVED BY THE COURT, AN
EMPLOYER HAS NO OBLIGATION TO DO SO UNDER THE ACT. 

/5/  I DO NOT ATTEMPT TO INDICATE HOW THE BOARD SHOULD SPECIFY
STANDARDS AS TO WHAT MAY CONSTITUTE "CONVINCING EVIDENCE."  IN VIEW OF
ITS EXPERIENCE AND EXPERTISE, THE BOARD IS BETTER QUALIFIED THAN WE ARE
TO UNDERTAKE THE SPECIFIES OF THIS TASK.  I DO SUGGEST THAT THE SUPPORT
OF A BARE MAJORITY OF EMPLOYEES, WHETHER DEMONSTRATED BY AUTHORIZATION
CARDS, A STRIKE, OR A STRIKE VOTE, WOULD NOT NECESSARILY CONSTITUTE
CONVINCING EVIDENCE.  GIVEN THE POSSIBILITY OF UNDUE PEER PRESSURE OR
EVEN COERCION IN PERSONAL CARD SOLICITATION OR NONSECRET STRIKE VOTES,
A HIGHER LEVEL OF OBJECTIVE DEPENDABILITY MIGHT BE OBTAINED BY
REQUIRING A GREATER SHOW OF SUPPORT THAN A BARE MAJORITY. 

/6/  ALTHOUGH THE COURT REITERATES THE GENERALLY ACKNOWLEDGED VIEW
THAT ELECTIONS ARE THE PREFERRED METHOD FOR DETERMINING WHETHER A UNION
HAS MAJORITY SUPPORT, IT SUGGESTS THAT AN ELECTION HELD AS A RESULT OF
AN EMPLOYER PETITION OR AN EXPEDITED ELECTION TO WHICH THE EMPLOYER HAS
CONSENTED IS SOMEHOW LESS DESIRABLE THAN A UNION-REQUESTED ELECTION. 
ANTE, AT 309.  NO SUCH DISTINCTION IS POSSIBLE.  THE ADVANTAGES OF A
SECRET ELECTION TO DETERMINE THE TRUE DESIRES OF EMPLOYEES WITH RESPECT
TO THE SELECTION OF A COLLECTIVE-BARGAINING REPRESENTATIVE, ENSURING A
CHOICE THAT IS FREE FROM THE INFLUENCES OF MASS PSYCHOLOGY, SEE BROOKS
V. NLRB, 348 U.S. 96, 100, ARE ENTIRELY UNRELATED TO WHETHER THE UNION
OR THE EMPLOYER HAS INITIATED THE ELECTION PROCEEDINGS. 

NORTON J. COME, ARGUED THE CAUSE FOR THE NATIONAL LABOR RELATIONS
BOARD, RESPONDENT IN NO. 73 - 1231 AND PETITIONER IN NO. 73 - 1234. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, PETER G. NASH, JOHN
S. IRVING, AND PATRICK HARDIN.  LAWRENCE M. COHEN ARGUED THE CAUSE FOR
PETITIONER IN NO. 73 - 1231.  WITH HIM ON THE BRIEFS WERE STEVEN R.
SEMLER AND RONALD F. HARTMAN.  LAURENCE GOLD ARGUED THE CAUSE AND FILED
A BRIEF FOR RESPONDENT UNIONS IN BOTH CASES. 

GENERAL C. SMETANA, JERRY KRONENBERG, AND MILTON SMITH FILED A BRIEF
FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICUS CURIAE
URGING REVERSAL. 
..END :
























KELLEY V. SOUTHERN PACIFIC CO., 419 U.S. 318 


       KELLEY V. SOUTHERN PACIFIC CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

        NO. 73 - 1270.  ARGUED OCTOBER 22, 1974--DECIDED DECEMBER

           23, 1974 486 F.2D 1084, VACATED AND REMANDED. 


    PETITIONER, AN EMPLOYEE OF A TRUCKING COMPANY (PMT), WAS

  INJURED WHILE TRANSFERRING AUTOMOBILES IN RESPONDENT'S RAILYARD

  FROM RESPONDENT'S RAILROAD CAR TO A PMT AUTO TRAILER, AN

  OPERATION THAT PMT PERFORMED UNDER CONTRACT FOR RESPONDENT

  RAILROAD.  ALTHOUGH RESPONDENT'S EMPLOYEES OCCASIONALLY CONSULTED

  WITH PMT EMPLOYEES ABOUT THE OPERATION, PMT SUPERVISORS

  CONTROLLED THE DAY-TO-DAY UNLOADING PROCESS.  PETITIONER,

  CLAIMING THAT HE WAS SUFFICIENTLY UNDER RESPONDENT'S CONTROL TO

  BRING HIM UNDER THE COVERAGE OF THE FEDERAL EMPLOYERS'  LIABILITY

  ACT (FELA), WHICH MAKES A COVERED RAILROAD LIABLE FOR NEGLIGENTLY

  CAUSING INJURY OR DEATH TO ANY PERSON "WHILE HE IS EMPLOYED" BY

  THE RAILROAD, AND THAT THE ACCIDENT RESULTED FROM RESPONDENT'S

  NEGLIGENCE, BROUGHT SUIT AGAINST RESPONDENT UNDER THE FELA.  THE

  DISTRICT COURT FOUND THAT THE RELATIONSHIP BETWEEN PETITIONER AND

  RESPONDENT SUFFICED TO MAKE THE FELA APPLY, THE COURT HAVING

  CONCLUDED THAT:  PMT WAS SERVING GENERALLY AS RESPONDENT'S AGENT;

  PMT EMPLOYEES WERE RESPONDENT'S AGENTS FOR PURPOSES OF THE

  UNLOADING OPERATION; AND THE WORK PERFORMED BY PETITIONER

  FULFILLED A NON-DELEGABLE DUTY OF RESPONDENT.  THE COURT OF

  APPEALS REVERSED, HAVING CONCLUDED THAT THE DISTRICT COURT'S TEST

 FOR FELA LIABILITY WAS TOO BROAD.  HELD: 

     1.  THE "WHILE EMPLOYED" LANGUAGE OF THE FELA REQUIRES NOT
ONLY

THAT THE FELA PLAINTIFF BE AN AGENT OF THE RAIL CARRIER BUT THE

  CARRIER'S SERVANT, AND HERE THE DISTRICT COURT ERRED IN HOLDING

  THAT PETITIONER (WHO ACCORDING TO THE COURT'S FINDINGS WAS

  NEITHER A BORROWED SERVANT OF RESPONDENT NOR A DUAL SERVANT OF

  RESPONDENT AND PMT) CAME WITHIN THE COVERAGE OF THE FELA, SINCE

  THOSE FINDINGS ALSO DID NOT ESTABLISH A MASTER-SERVANT

  RELATIONSHIP BETWEEN RESPONDENT AND PMT THAT WOULD BE NECESSARY

  TO RENDER PETITIONER A SUBSERVANT OF THE RAILROAD.  NOR WAS THE

  DISTRICT COURT'S CONCLUSION THAT RESPONDENT WAS "RESPONSIBLE"

  FOR THE UNLOADING OPERATION TANTAMOUNT TO A FINDING THAT THE

  RAILROAD CONTROLLED OR HAD THE RIGHT TO CONTROL THE PHYSICAL

 CONDUCT OF PMT EMPLOYEES LIKE PETITIONER IN THE UNLOADING

  OPERATION.  PP. 322 - 326. 

     2.  THE DISTRICT COURT'S FINDINGS THAT PETITIONER WORKED MOST

  OF THE TIME ON RESPONDENT'S PREMISES AND THAT RESPONDENT'S

  EMPLOYEES WERE RESPONSIBLE FOR CHECKING THE SAFETY CONDITIONS ON

  THE RAILROAD CARS SHOWED ONLY THAT THE TWO COMPANIES' OPERATIONS

  WERE CLOSELY RELATED, NOT THAT RESPONDENT'S EMPLOYEES SUPERVISED

  THE UNLOADING OPERATION, AND CONSEQUENTLY THE FELA'S "WHILE

  EMPLOYED"  REQUIREMENT REMAINS UNSATISFIED EVEN UNDER THE PROPER

  TEST.  PP. 326 - 331. 

3.  THE RECORD SHOULD BE RE-EXAMINED BY THE DISTRICT COURT IN

  LIGHT OF THE PROPER LEGAL STANDARD.  PP. 331 - 332. 

   MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND WHITE, POWELL, AND REHNQUIST, JJ., JOINED. 

  STEWART, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, POST,

  P. 332.  DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH

  BRENNAN, J., JOINED, POST, P. 333.  BLACKMUN, J., FILED A

  DISSENTING OPINION, POST, P. 341. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

PETITIONER EUGENE KELLEY WAS SERIOUSLY INJURED WHEN HE FELL FROM THE
TOP OF A TRI-LEVEL RAILROAD CAR WHERE HE HAD BEEN WORKING.  HE SOUGHT
RECOVERY FOR HIS INJURIES FROM THE RESPONDENT RAILROAD UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT (FELA), 35 STAT. 65, AS AMENDED, 45
U.S.C. 51 - 60.  UNDER THE FELA, A COVERED RAILROAD IS LIABLE FOR
NEGLIGENTLY CAUSING THE INJURY OR DEATH OF ANY PERSON "WHILE HE IS
EMPLOYED" BY THE RAILROAD.  ALTHOUGH PETITIONER ACKNOWLEDGED THAT HE
WAS TECHNICALLY IN THE EMPLOY OF A TRUCKING COMPANY RATHER THAN THE
RAILROAD, HE CONTENDED THAT HIS WORK WAS SUFFICIENTLY UNDER THE CONTROL
OF THE RAILROAD TO BRING HIM WITHIN THE COVERAGE OF THE FELA.  THE
DISTRICT COURT AGREED, BUT THE COURT OF APPEALS FOR THE NINTH CIRCUIT
REVERSED, 486 F.2D 1084 (1973), CREATING AN APPARENT CONFLICT WITH A
PREVIOUS DECISION OF THE FOURTH CIRCUIT, SMITH V. NORFOLK & WESTERN R.
CO., 407 F.2D 501, CERT. DENIED, 395 U.S. 979 (1969).  /1/  WE GRANTED
CERTIORARI TO RESOLVE THE CONFLICT.  416 U.S. 935 (1974).  WE VACATE
THE JUDGMENT AND REMAND THE CASE FOR FURTHER PROCEEDINGS IN THE
DISTRICT COURT. 

        I 

AT THE TIME OF HIS ACCIDENT, PETITIONER HAD WORKED FOR THE PACIFIC
MOTOR TRUCKING CO. (PMT), A WHOLLY OWNED SUBSIDIARY OF THE SOUTHERN
PACIFIC CO., FOR ABOUT EIGHT YEARS.  /2/  PMT WAS ENGAGED IN VARIOUS
TRUCKING ENTERPRISES, PRIMARILY IN CONJUNCTION WITH THE RAILROAD
OPERATIONS OF ITS PARENT COMPANY.  AMONG PMT'S FUNCTIONS WAS
TRANSPORTING NEW AUTOMOBILES FROM RESPONDENT'S SAN FRANCISCO RAILYARD
TO AUTOMOBILE DEALERS IN THE SAN FRANCISCO AREA.  AS PART OF ITS
CONTRACTUAL ARRANGEMENT WITH THE RAILROAD, PMT WOULD UNLOAD AUTOMOBILES
FROM SOUTHERN PACIFIC'S "TRI-LEVEL" AUTO-CARRYING FLATCARS WHEN THEY
ARRIVED IN THE YARD.  IT WAS PETITIONER'S JOB TO UNHOOK THE AUTOMOBILES
FROM THEIR PLACES ON THE RAILROAD CARS AND TO DRIVE THEM INTO THE YARD
FOR FURTHER TRANSFER TO PMT AUTO TRAILERS.  PMT MAINTAINED THE
UNLOADING OPERATION IN THE YARD ON A PERMANENT BASIS.  ALTHOUGH THERE
WERE SOUTHERN PACIFIC EMPLOYEES IN THE AREA WHO WOULD OCCASIONALLY
CONSULT WITH PMT EMPLOYEES ABOUT THE UNLOADING PROCESS, PMT SUPERVISORS
CONTROLLED AND DIRECTED THE DAY-TO-DAY OPERATIONS. 

ON JULY 3, 1963, PETITIONER WAS UNHOOKING AUTOMOBILES IN THE USUAL
FASHION FROM THE TOP LEVEL OF ONE OF THE TRI-LEVEL FLATCARS.  A SAFETY
CABLE, NORMALLY AFFIXED TO THE FLATCAR TO PROTECT AGAINST FALLS, WAS
APPARENTLY NOT IN PLACE BECAUSE OF AN EQUIPMENT DEFECT.  DURING THE
UNHOOKING PROCESS, PETITIONER FELL FROM THE TOP OF THE CAR AND SUFFERED
A DISABLING INJURY.  HE SUBSEQUENTLY RECEIVED WORKMEN'S COMPENSATION
PAYMENTS FROM PMT.  SHORTLY BEFORE THE THREE-YEAR FELA STATUTE OF
LIMITATIONS HAD RUN, HE BROUGHT SUIT AGAINST THE RESPONDENT, /3/
CLAIMING IT HAD BEEN NEGLIGENT IN FAILING TO MAINTAIN THE SAFETY CABLE
IN ITS PROPER PLACE AND IN PROPER WORKING ORDER. 

IN HIS COMPLAINT, PETITIONER ALLEGED THAT HE WAS EMPLOYED BY THE
RESPONDENT RAILROAD, WITHIN THE MEANING OF THE FELA.  AFTER A SIX-DAY
HEARING, THE DISTRICT COURT, SITTING AS TRIER OF FACT, /4/  RULED IN
PETITIONER'S FAVOR ON THE EMPLOYMENT QUESTION.  THE JOB OF UNLOADING
AUTOMOBILES WAS THE RAILROAD'S RESPONSIBILITY, THE COURT FOUND,
"PURSUANT TO ITS CONTRACTUAL RESPONSIBILITIES TO THE SHIPPERS AND ITS
TARRIFF RESPONSIBILITIES."  IN ADDITION, THE COURT FOUND THAT THE
RAILROAD SUPPLIED THE NECESSARY RAMPS AND OWNED THE AREA IN WHICH THE
PMT EMPLOYEES WORKED.  THE RESPONSIBILITY FOR SUPERVISORS AND CONTROL
OF THE UNLOADING OPERATIONS WAS RESPONDENT'S, THE COURT CONCLUDED, EVEN
THOUGH "THE EXERCISE THEREOF WAS EXECUTED BY EMPLOYEES OF PACIFIC MOTOR
TRUCKING COMPANY."  IN SUM, THE COURT FOUND THAT PMT WAS SERVING
GENERALLY AS THE RAILROAD'S AGENT; PMT EMPLOYEES WERE AGENTS OF THE
RAILROAD FOR THE PURPOSES OF THE UNLOADING OPERATION; AND BECAUSE THE
WORK BEING PERFORMED BY PETITIONER WAS "IN FULFILLMENT OF A NON
DELEGABLE DUTY OF DEFENDANT SOUTHERN PACIFIC COMPANY," THE RELATIONSHIP
BETWEEN PETITIONER AND THE RAILROAD WAS SUFFICIENT TO BRING HIM WITHIN
THE COVERAGE OF THE FELA.  AFTER THIS RESOLUTION OF THE EMPLOYMENT
ISSUE, THE RAILROAD STIPULATED TO ITS NEGLIGENCE, THE PARTIES AGREED TO
SET DAMAGES AT $200,000, AND THE TRIAL COURT ENTERED JUDGMENT FOR
PETITIONER IN THAT AMOUNT. 

THE COURT OF APPEALS OBSERVED THAT THE DISTRICT COURT HAD NOT FOUND
THAT PETITIONER WAS "EMPLOYED" BY THE RAILROAD, EITHER PERMANENTLY OR
AT THE TIME OF HIS ACCIDENT.  THE COURT NOTED THAT THE "WHILE EMPLOYED"
CLAUSE OF THE FELA REQUIRES A FINDING NOT JUST OF AGENCY BUT OF A
MASTER-SERVANT RELATIONSHIP BETWEEN THE RAIL CARRIER AND THE FELA
PLAINTIFF.  CONCLUDING THAT THE DISTRICT COURT HAD APPLIED AN UNDULY
BROAD TEST FOR FELA LIABILITY, THE COURT OF APPEALS REVERSED THE
DISTRICT COURT'S JUDGMENT. 

        II 

PETITIONER INSISTS THAT THE DISTRICT COURT IN EFFECT MADE A FACTUAL
FINDING OF EMPLOYMENT AND THAT THE COURT OF APPEALS ERRED IN UPSETTING
THAT FINDING.  OF COURSE, EVEN IF THE DISTRICT COURT MADE SUCH A
FINDING OF EMPLOYMENT AFTER APPLYING THE PROPER PRINCIPLES OF LAW, THAT
WOULD NOT BE THE END OF THE MATTER.  UNDER FED. RULE CIV. PROC. 52(A),
AN APPELLATE COURT MUST SET ASIDE THE TRIAL COURT'S FINDINGS IF IT
CONCLUDES THAT THEY ARE "CLEARLY ERRONEOUS."  SEE UNITED STATES V.
UNITED STATES GYPSUM CO., 333 U.S. 364, 394 - 395 (1948).  WE NEED NOT
REACH THE QUESTION WHETHER ANY OF THE DISTRICT COURT'S FINDINGS IN THIS
CASE WERE CLEARLY ERRONEOUS, HOWEVER, SINCE WE AGREE WITH THE COURT OF
APPEALS THAT THE TRIAL COURT APPLIED AN ERRONEOUS LEGAL STANDARD IN
HOLDING THAT THE PLAINTIFF WAS WITHIN THE REACH OF THE FELA.  UNITED
STATES V. SINGER MFG. CO., 374 U.S. 174, 194 N. 9(1963). 

THE HEART OF THE DISTRICT COURT'S ANALYSIS WAS ITS CONCLUSION THAT
THE "TRADITIONAL AGENCY RELATIONSHIP" BETWEEN RESPONDENT AND PMT, IN
CONJUNCTION WITH THE MASTER-SERVANT RELATIONSHIP BETWEEN PMT AND
PETITIONER, WAS SUFFICIENT UNDER THE CIRCUMSTANCES OF THIS CASE TO
BRING PETITIONER UNDER THE COVERAGE OF THE ACT.  BUT THIS COURT HAS
REPEATEDLY REQUIRED MORE THAN THAT TO SATISFY THE "WHILE EMPLOYED"
CLAUSE OF THE FELA.  FROM THE BEGINNING THE STANDARD HAS BEEN PROOF OF
A MASTER-SERVANT RELATIONSHIP BETWEEN THE PLAINTIFF AND THE DEFENDANT
RAILROAD.  SEE ROBINSON V. BALTIMORE & OHIO R. CO., 237 U.S. 84, 94
(1915); HULL V. PHILADELPHIA & READING R. CO., 252 U.S. 475, 479
(1920); BAKER V. TEXAS & PACIFIC R. CO., 359 U.S. 227, 228 (1959). 

IN AN EARLY FELA CASE, THIS COURT NOTED THAT THE WORDS "EMPLOYEE"
AND "EMPLOYED" IN THE STATUTE WERE USED IN THEIR NATURAL SENSE, AND
WERE "INTENDED TO DESCRIBE THE CONVENTIAL RELATION OF EMPLOYER AND
EMPLOYE."  ROBINSON, SUPRA, AT 94.  IN BAKER, SUPRA, THE COURT
REAFFIRMED THAT FOR THE PURPOSES OF THE FELA THE QUES ION OF
EMPLOYMENT, OR MASTER-SERVANT STATUS, WAS TO BE DETERMINED BY REFERENCE
TO COMMON-LAW PRINICPLES.  THE COURT IN BAKER REFERRED TO SECTIONS OF
THE RESTATEMENT (SECOND) OF AGENCY DEALING WITH THE BORROWED-SERVANT
DOCTRINE AND THE GENERAL MASTER-SERVANT RELATIONSHIP AS A GUIDELINE FOR
ANALYSIS AND PROPER JURY INSTRUCTIONS.  /5/  SECTION 220(1) OF THE
RESTATEMENT DEFINES A SERVANT AS "A PERSON EMPLOYED TO PERFORM SERVICES
IN THE AFFAIRS OF ANOTHER AND WHO WITH RESPECT TO THE PHYSICAL CONDUCT
IN THE PERFORMANCE OF THE SERVICES IS SUBJECT TO THE OTHER'S CONTROL OR
RIGHT TO CONTROL."  IN 220(2), THE RESTATEMENT RECITES VARIOUS FACTORS
THAT ARE HELPFUL IN APPLYING THAT DEFINITION.  WHILE THAT SECTION IS
DIRECTED PRIMARILY AT DETERMINING WHETHER A PARTICULAR BILATERAL
ARRANGEMENT IS PROPERELY CHARACTERIZED AS A MASTER-SERVANT OR
INDEPENDENT CONTRACTOR RELATIONSHIP, IT CAN ALSO BE INSTRUCTIVE IN
ANALYZING THE THREE-PARTY RELATIONSHIP BETWEEN TWO EMPLOYERS AND A
WORKER. 

UNDER COMMON-LAW PRINCIPLES, THERE ARE BASICALLY THREE METHODS BY
WHICH A PLAINTIFF CAN ESTABLISH HIS "EMPLOYMENT" WITH A RAIL CARRIER
FOR FELA PURPOSES EVEN WHILE HE IS NOMINALLY EMPLOYED BY ANOTHER. 
FIRST, THE EMPLOYEE COULD BE SERVING AS THE BORROWED SERVANT OF THE
RAILROAD AT THE TIME OF HIS INJURY.  SEE RESTATEMENT (SECOND) OF AGENCY
227; LINSTEAD V. CHESAPEAKE & OHIO R. CO., 276 U.S. 28 (1928).  SECOND,
HE COULD BE DEEMED TO BE ACTING FOR TWO MASTERS SIMULTANEOUSLY.  SEE
RESTATEMENT 226; WILLIAMS V. PENNSYLVANIA R. CO., 313 F.2D 203, 209
(CA2 1963).  FINALLY, HE COULD BE A SUBSERVANT OF A COMPANY THAT WAS IN
TURN A SERVANT OF THE RAILROAD.  SEE RESTATEMENT 5(2); SCHROEDER V.
PENNSYLVANIA R. CO., 397 F.2D 452 (CA7 1968). 

NOTHING IN THE DISTRICT COURT'S FINDINGS SUGGESTS THAT PETITIONER WAS
SUFFICIENTLY UNDER THE CONTROL OF RESPONDENT TO BE EITHER A BORROWED
SERVANT OF THE RAILROAD OR A DUAL SERVANT OF THE RAILROAD AND PMT.  /6/
THE DISTRICT COURT'S FINDINGS COME CLOSEST TO SUGGESTING A SUBSERVANT
RELATIONSHIP RUNNING FROM THE RAILROAD THROUGH PMT TO PETITIONER.  BUT
EVEN THAT THEORY FAILS ON THE FINDINGS IN THE TRIAL COURT, SINCE THOSE
FINDINGS, DID NOT ESTABLISH THE MASTER-SERVANT RELATIONSHIP BETWEEN
RESPONDENT AND PMT NECESSARY TO RENDER PETITIONER A SUBSERVANT OF THE
RAILROAD. 

THE DISTRICT COURT FOUND THAT PMT EMPLOYEES EXERCISED SUPERVISION
AND CONTROL OVER THE UNLOADING OPERATIONS, ALTHOUGH THE RAILROAD BORE
THE "RESPONSIBILITY" FOR THOSE FUNCTIONS.  ON THESE FACTS, THE DISTRICT
COURT WAS PLAINLY CORRECT IN CONCLUDING THAT PMT WAS AN AGENT OF THE
RAILROAD.  BUT A FINDING OF AGENCY IS NOT TANTAMOUNT TO A FINDING OF A
MASTER-SERVANT RELATIONSHIP.  SEE RESTATEMENT (SECOND) OF AGENCY 2. 
THE FINDING THAT THE RAILROAD WAS "RESPONSIBLE" FOR THE UNLOADING
OPERATIONS IS SIGNIFICANTLY WEAKER THAN WOULD BE A FINDING THAT IT
CONTROLLED OR HAD THE RIGHT TO CONTROL THE PHYSICAL CONDUCT OF THE PMT
EMPLOYEES IN THE COURSE OF THEIR UNLOADING OPERATIONS.  THE RAILROAD
WOULD SATISFY THE DISTRICT COURT'S "RESPONSIBILITY" TEST WHENEVER IT
AGREED TO PERFORM A SERVICE AND SUBSEQUENTLY ENGAGED ANOTHER COMPANY TO
PERFORM THAT SERVICE FOR IT ON ITS PREMISES.  THE "CONTROL OR RIGHT TO
CONTROL" TEST, BY CONTRACT, WOULD BE MET ONLY IF IT WERE SHOWN THAT THE
ROLE OF THE SECOND COMPANY WAS THAT OF A CONVENTIONAL COMMON-LAW
SERVANT.  /7/  ACCORDINGLY, WE AGREE WITH THE COURT OF APPEALS THAT THE
DISTRICT COURT'S TEST FOR FELA COVERAGES WAS TOO BROAD. 

        III 

THE DISSENTERS ARGUE THAT EVEN IF THE DISTRICT COURT ERRED IN
DEFINING THE APPLICABLE LEGAL STANDARD, WE SHOULD REVERSE THE COURT OF
APPEALS AND REINSTATE THE JUDGMENT OF THE DISTRICT COURT.  THE FACTS
FOUND BY THE DISTRICT COURT, THEY CONTEND, SATISFIED THE REQUIREMENTS
OF THE "WHILE EMPLOYED" CLAUSE, EVEN UNDER THE PROPER TEST.  WE
DISAGREE. 

AS WE NOTED IN PART II, THE DISTRICT COURT'S FINDINGS CONCERNING THE
CONTRACTUAL RELATIONSHIP BETWEEN PMT AND THE RAILROAD FALL FAR SHORT OF
COMPELLING THE CONCLUSION THAT KELLEY WAS EMPLOYED BY SOUTHERN
PACIFIC.  THE COURT'S OTHER FACTUAL DETERMINATIONS ADD NO MORE FORCE TO
THE CLAIM.  THE FINDINGS THAT KELLEY'S CREW WORKED MOST OF THE TIME ON
THE RAILROAD'S PREMISES AND THAT RAILROAD EMPLOYEES WERE EMPLOYEES WERE
RESPONSIBLE FOR CHECKING SAFETY CONDITIONS ON THE TRI-LEVEL CARS
REFLECT THE FACT THAT THE ACTIVITIES OF THE TWO COMPANIES WERE CLOSELY
RELATED AND NECESSARILY HAD TO BE COORDINATED.  RAILROAD EMPLOYEES
TENDING THE CARS AND PMT EMPLOYEES UNLOADING THEM NATUALLY HAD
SUBSTANTIAL CONTACT WITH ONE ANOTHER.  IN ADDITION, SOUTHERN PACIFIC
SUPERVISORY PERSONNEL WERE OCCASIONALLY IN THE AREA WHERE PMT CONDUCTED
ITS UNLOADING OPERATIONS AND FROM TIME TO TIME WOULD ADVISE OR CONSULT
WITH PMT EMPLOYEES AND SUPERVISORS.  BUT THE TRIAL COURT DID NOT FIND
THAT SOUTHERN PACIFIC EMPLOYEES PLAYED A SIGNIFICANT SUPERVISORY ROLE
IN THE UNLOADING OPERATION OR, MORE PARTICULARLY, THAT PETITIONER WAS
BEING SUPERVISED BY SOUTHERN PACIFIC EMPLOYEES AT THE TIME OF HIS
INJURY.  /8/  NOR DID THE COURT FIND THAT SOUTHERN PACIFIC EMPLOYEES
HAD ANY GENERAL RIGHT TO CONTROL THE ACTIVITIES OF PETITIONER AND THE
OTHER PMT WORKERS.  /9/ 

THE TWO COMPANIES WERE SUFFICIENTLY DISTINCT IN ORGANIZATION AND
RESPONSIBILITY THAT THERE WAS NO APPARENT OVERLAP IN THE SUPERVISORY
RANKS.  INDEED, THE LABOR CONTRACT BETWEEN THE TEAMSTERS AND PMT
EXPRESSLY PROVIDED THAT THE PMT EMPLOYEES WOULD BE SUBJECT ONLY TO THE
CONTROL OF PMT SUPERVISORS.  IN LIGHT OF THE ANALYSIS IN THIS COURT'S
PREVIOUS CASES, THE DISTRICT COURT'S FINDINGS CLEARLY FAIL TO ESTABLISH
THAT PETITIONER WAS "EMPLOYED" BY THE RAILROAD. 

IN ROBINSON V. BALTIMORE & OHIO R. CO., SUPRA, THE PETITIONER WAS AN
EMPLOYEE OF THE PULLMAN COMPANY, SERVING AS PORTER IN CHARGE OF A
PULLMAN CAR THAT WAS HAULED BY THE RESPONDENT RAILROAD.  ALTHOUGH THE
PULLMAN EMPLOYEES WORKED CLOSELY WITH RAILROAD EMPLOYEES, AND ALTHOUGH
THE PULLMAN CAR WAS AN INTEGRAL PART OF THE RAILROAD OPERATION, THE
COURT HELD THAT THAT WAS NOT ENOUGH TO MAKE PETITIONER AN EMPLOYEE OF
THE RAILROAD FOR THE PURPOSES OF THE ACT.  EVEN THE PETITIONER'S
RESPONSIBILITY FOR TAKING TICKETS OR FARES OF PASSENGERS BOARDING THE
PULLMAN CAR AT NIGHT WAS NOT ENOUGH TO MAKE HIM A SERVANT OF THE
RAILROAD.  THIS SERVICE WAS MERELY AN ACCOMODATION TO THE RAILROAD, NOT
A DEMONSTRATION OF THE RAILROAD'S RIGHT TO CONTROL THE CONDUCT OF THE
PULLMAN EMPLOYEE.  THE COURT STATED THAT AT THE TIME THE ACT WAS
PASSED, "(IT WAS WELL KNOWN THAT THERE WERE ON INTERSTATE TRAINS
PERSONS ENGAGED IN VARIOUS SERVICES FOR OTHER MASTERS.  CONGRESS,
FAMILIAR WITH THIS SITUATION, DID NOT USE ANY APPROPRIATE EXPRESSION
WHICH COULD BE TAKEN TO INDICATE A PURPOSE TO INCLUDE SUCH PERSONS
AMONG THOSE TO WHOM THE RAILROAD COMPANY WAS TO BE LIABLE UNDER THE
ACT."  237 U.S.,AT 94.  THE PULLMAN COMPANY, LIKE PMT IN THIS CASE,
SELECTED ITS OWN EMPLOYEES, AND IT "DEFINED THEIR DUTIES, FIXED AND
PAID THEIR WAGES, DIRECTED AND SUPERVISED THE PERFORMANCE OF THEIR
TASKS, AND PLACED AND REMOVED THEM AT ITS PLEASURE."  ID., AT 93. 
IN THE FOLLOWING YEAR, THE COURT WAS AGAIN FACED WITH THE QUESTION
WHETHER A PARTICULAR WORKER WAS AN EMPLOYEE OF THE RAILROAD THAT HAD
CAUSED HIS DEATH, OR WHETHER HE WAS AN INDEPENDENT CONTRACTOR. 
CHICAGO, R.I. & P.R. CO. V. BOND, 240 U.S. 449 (1916).  THE DECEDENT
HAD BEEN ENGAGED BY THE RAILROAD TO PROCURE COAL AND WOOD AND TO
PERFORM VARIOUS OTHER SERVICES AT ITS LOADING CENTER IN ENID, OKLA.
ALTHOUGH THE RAILROAD DIRECTED THE DECEDENT'S ACTIVITIES TO SOME
EXTENT, THE COURT OBSERVED THAT THOSE DIRECTIONS WERE SIMPLY
REFORMULATIONS OF THE FLEXIBLE OBLIGATIONS ASSUMED BY THE DECEDENT
UNDER HIS CONTRACT, NOT "A DETAILED CONTROL OF THE ACTIONS OF
(DECEDENT) OR THOSE OF HIS EMPLOYEES."  ID., AT 455 - 456.  THE
ARRANGEMENT BY WHICH DECEDENT HAD BEEN ENGAGED TO PROVIDE SERVICES FOR
THE RAILROAD, THE COURT CONCLUDED, WAS "NOT THE ENGAGEMENT OF A SERVANT
SUBMITTING TO SUBORDINATION AND SUBJECT MOMENTARILY TO SUPERINTENDENCE,
BUT OF ONE CAPABLE OF INDEPENDENT ACTION, TO BE JUDGED OF BY ITS
RESULTS."  ID., AT 456. 

IN BOND THE COURT RELIED ON THE EARLIER DECISION IN STANDARD OIL CO.
V. ANDERSON, 212 U.S. 215 (1909), TO CLARIFY THE DISTINCTION BETWEEN A
CONTRACTOR AND AN EMPLOYEE.  IN THAT CASE, A LONGSHOREMAN WAS INJURED
WHEN A WINCH OPERATOR NEGLIGENTLY LOWERED A LOAD OF OIL CASES ON HIM. 
PETITIONER, THE GENERAL EMPLOYER OF THE NEGLIGENT WINCHMAN, ARGUED THAT
AT THE TIME OF THE ACCIDENT THE WINCHMAN WAS THE BORROWED SERVANT OF
THE STEVEDORING COMPANY, THE LONGSHOREMAN'S EMPLOYER.  THE COURT,
HOWEVER, HELD THAT THE WINCHMAN WAS NOT A SERVANT OF THE STEVEDORE BUT
THE SERVANT OF AN INDEPENDENT CONTRACTOR.  THE GENERAL EMPLOYER HAD NOT
FURNISHED THE EMPLOYER TO THE STEVEDORE, THE COURT WROTE; IT HAD
FURNISHED ONLY THE EMPLOYEE'S WORK.  FOCUSING ON THE LOCUS OF THE POWER
TO CONTROL AND DIRECT THE SERVANT'S WORK, THE COURT EMPHASIZED THE
IMPORTANCE OF DISTINGUISHING BETWEEN "AUTHORITATIVE DIRECTION AND
CONTROL, AND MERE SUGGESTION AS TO DETAILS OR THE NECESSARY
COOPERATION, WHERE THE WORK FURNISHED IS PART OF A LARGER
UNDERTAKING."  ID., AT 222.  CT. DENTON V. YAZOO & MISSISSIPPI VALLEY
R. CO., 284 U.S. 305 (1932). 

IN THIS CASE, AS IN ANDERSON, THE EVIDENCE OF CONTACTS BETWEEN
SOUTHERN PACIFIC EMPLOYEES AND PMT EMPLOYEES MAY INDICATE, NOT
DIRECTION OR CONTROL, BUT RATHER THE PASSING OF INFORMATION AND THE
ACCOMMODATION THAT IS OBVIOUSLY REQUIRED IN A LARGE AND NECESSARILY
COORDINATED OPERATION.  SEE DEL VECCHIO V. PENNSYLVANIA R. CO., 233
F.2D 2, 5 (CA3 1956).  THE INFORMAL CONTACTS BETWEEN THE TWO GROUPS
MUST ASSUME A SUPERVISORY CHARACTER BEFORE THE PMT EMPLOYEES CAN BE
DEEMED PRO HAC VICE EMPLOYEES OF THE RAILROAD.  /10/ 

THE FACTUAL SETTING OF BAKER V. TEXAS & PACIFIC R. CO., SUPRA,
PROVIDES AN INSTRUCTIVE CONTRAST.  PETITIONER IN BAKER WAS NOMINALLY
EMPLOYED BY A CONTRACTOR WHO WAS ENGAGED IN MAINTENANCE WORK FOR THE
RAILROAD.  AT TRIAL, HE INTRODUCED EVIDENCE TO SHOW THAT HIS WORK WAS
PART OF THE MAINTENANCE TASK OF THE RAILROAD AND THAT THE MATERIAL HE
WAS PUMPING INTO THE ROADBED WAS SUPPLIED BY THE RAILROAD.  MOST
SIGNIFICANTLY, THERE WAS EVIDENCE TO SHOW THAT 

"A SUPERVISOR, ADMITTEDLY IN THE EMPLOY OF THE RAILROAD, IN THE
DAILY COURSE OF THE WORK EXERCISED DIRECTIVE CONTROL OVER THE DETAILS
OF THE JOB PERFORMED BY THE INDIVIDUAL WORKMEN, INCLUDING THE PRECISE
POINT WHERE THE MIXTURE SHOULD BE PUMPED, WHEN THEY SHOULD MOVE TO THE
NEXT POINT, AND THE CONSISTENCY OF THE MIXTURE."  359 U.S.,AT 228 -
229.  BECAUSE THE EVIDENCE OF CONTROL OR RIGHT TO CONTROL WAS IN
SERIOUS DISPUTE, THE COURT HELD THAT THE CASE MUST BE PERMITTED TO GO
TO THE JURY.  AS WE HAVE INDICATED, HOWEVER, THE DISTRICT COURT FOUND
NO SUCH DAY-TO-DAY SUPERVISION THAT WOULD SUPPORT A FINDING THAT
PETITIONER AND HIS COWORKERS WERE, IN EFFECT, EMPLOYEES OF THE
RAILROAD. 

        IV 

WE PART COMPANY WITH THE COURT OF APPEALS ON THE PROPRIETY OF A
REMAND.  THE COURT RENDERED JUDGMENT FOR RESPONDENT APPARENTLY BECAUSE
IT DETERMINED THAT THE DISTRICT COURT HAD FOUND THAT THERE WAS NO
EMPLOYMENT RELATIONSHIP, OR BECAUSE IT HAD DECIDED ON ITS OWN THAT ANY
SUCH FINDING WOULD HAVE BEEN CLEARLY ERRONEOUS.  YET, WHILE THE
DISTRICT COURT'S FAILURE TO ADOPT PETITIONER'S PROPOSED FINDINGS OF
FACT RELATING TO EMPLOYMENT IS OF SOME SIGNIFICANCE IN DETERMINING WHAT
THAT COURT DEEMED TO BE THE REQUIREMENTS OF THE "WHILE EMPLOYED"
CLAUSE, SEE N. 6, SUPRA, IT IS NOT ENOUGH TO CONSTITUTE A REVIEWABLE
FINDING THAT THERE WAS NO MASTER-SERVANT RELATIONSHIP BETWEEN
PETITIONER AND THE RAILROAD.  SIMILARLY, WHILE THE COURT OF APPEALS MAY
HAVE MEANT TO SUGGEST THAT IN ITS VIEW THE RECORD COULD NOT SUPPORT A
FINDING OF EMPLOYMENT, THAT SUGGESTION IS NOT DEVELOPED IN ITS OPINION,
AND WE THINK THE BEST COURSE AT THIS POINT IS TO REQUIRE THE TRIER OF
FACT TO RE-EXAMINE THE RECORD IN LIGHT OF THE PROPER LEGAL STANDARD. 
ACCORDINGLY, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE
DISTRICT COURT FOR FURTHER FINDINGS IN ACCORDANCE WITH THIS OPINION. 

              REMANDED WITH INSTRUCTIONS. 

/1/  VERY SIMILAR FACT SITUATIONS HAVE ARISEN IN A NUMBER OF FEDERAL
AND STATE CASES.  E.G., TARBORO V. READING CO., 396 F.2D 941 (CA3
1968), CERT. DENIED, 393 U.S. 1027 (1969); MAZZUCOLA V. PENNSYLVANIA R.
CO., 281 F.2D 267 (CA3 1960); LI V. CIMORELLNEW YORK CENTRAL R. CO.,
148 F.2D 575 (CA6 1945); THORNTON V. NORFOLK & WESTERN R. CO., 307
F.SUPP.  677 (ED VA. 1969); HUNTER V. MISSOURI-KANSAS-TEXAS R. CO., 258
F.SUPP.  20 (ND OKLA. 1 66); FAWCETT V. MISSOURI PACIFIC R. CO., 242
F.SUPP.  675 (WD LA. 1963), AFF'D PER CURIAM, 347 F.2D 233 (CA5), CERT.
DENIED, 382 U.S. 907 (1965); VALENTINE V. SOUTH COAST CORP., 218
F.SUPP.  148 (ED LA. 1963), AFF'D PER CURIAM, 334 F.2D 244 (CA5 1964);
WILLIAMS V. CHICAGO & EASTERN ILLINOIS R. CO., 13 ILL.APP.3D 596, 300
N.E.2D 766 (1973); WATERS V. CHICAGO & EASTERN ILLINOIS R. CO., 86
ILL.APP.2D 48, 229 N.E.2D 151 (1967); TURPIN V. CHICAGO, B. & Q.R. CO.,
403 S.W.2D 233 (MO.), CERT. DENIED, 384 U.S. 1003 (1966); DRAGO V.
CENTRAL R. CO., 93 N.J.L. 176, 106 A. 803, CERT. DENIED, 251 U.S. 553
(1919). 

/2/  PETITIONER HAS ABANDONED HIS CLAIM THAT PMT'S STATUS AS
RESONDENT'S WHOLLY OWNED SUBSIDIARY SHOULD RENDER RESPONDENT LIABLE
GENERALLY FOR INJURIES TO PMT EMPLOYEES. 

/3/  IN MOST FELA CASES A FINDING OF NONEMPLOYMENT DOES NO MORE THAN
DEPRIVE THE PLAINTIFF OF THE VARIOUS PROCEDURAL AND PROOF ADVANTAGES OF
THE ACT, SINCE THE COMMON-LAW NEGLIGENCE ACTION AGAINST A NONEMPLOYER
IS GENERALLY AVAILABLE IN THE ALTERNATIVE.  IN THIS CASE, HOWEVER, WHEN
PETITIONER BROUGHT HIS FELA SUIT, THE STATUTE OF LIMITATIONS FOR
CALIFORNIA'S COMMON-LAW NEGLIGENCE ACTION HAD ALREADY RUN. 

/4/  ALTHOUGH BOTH PARTIES INITIALLY DEMANDED A JURY TRIAL, THEY
AGREED TO TRY THE LIMITED QUESTION OF EMPLOYMENT TO THE COURT. 

/5/  A YEAR LATER, IN WARD V. ATLANTIC COAST LINE R. CO., 362 U.S.
396, 400 (1960), THE COURT AGAIN CITED THE RESTATEMENT AS THE PROPER
BASIS FOR INSTRUCTING A JURY ON THE VARIOUS FACTORS THAT BEAR ON THE
FACTUAL QUESTION OF EMPLOYMENT.  THE COURT IN WARD APPROVED AN
INSTRUCTION THAT INCORPORATED SEVERAL OF THE FACTORS MENTIONED IN
RESTATEMENT 220. 

/6/  IT APPEARS THAT THE DISTRICT COURT CONSCIOUSLY DECLINED TO MAKE
A FINDING OF "EMPLOYMENT" OR MASTER-SERVANT RELATIONSHIP BETWEEN THE
RAILROAD AND KELLEY.  PETITIONER PROPOSED FINDINGS THAT RESPONDENT "HAD
THE RIGHT TO EXERCISE CONTROL OVER THE DETAILS OF THE WORK BEING
PERFORMED BY (PETITIONER)," THAT THE PARTIES "BELIEVED THAT A
RELATIONSHIP OF MASTER AND SERVANT EXISTED" BETWEEN THEM, AND THAT
PETITIONER "WAS AN 'EMPLOYEE' OF DEFENDANT SOUTHERN PACIFIC COMPANY." 
THE COURT DECLINED TO MAKE ANY OF THESE THREE PROPOSED FINDINGS,
ALTHOUGH IT ADOPTED SEVERAL OF PETITIONER'S LESS CRITICAL PROPOSED
FINDINGS IN WHOLE OR IN PART.  MOREOVER, THE COURT SPECIFICALLY FOUND
THAT AT THE TIME OF HIS INJURY, PETITIONER WAS IN THE EMPLOYMENT OF
PMT, A FINDING THAT PETITIONER, OF COURSE, HAD NOT REQUESTED. 

/7/  THE DISTRICT COURT APPEARED TO PLACE SUBSTANTIAL WEIGHT ON ITS
FINDING THAT THE UNLOADING OPERATION WAS A "NON-DELEGABLE DUTY" OF THE
RAILROAD, "PURSUANT TO ITS CONTRACTUAL RESPONSIBILITIES TO THE SHIPPERS
AND ITS TARIFF RESPONSIBILITIES."  BUT THE FACT THAT RESPONDENT
UNDERTOOK THE CONTRACTUAL OBLIGATION TO UNLOAD THE CARS AND ADDED THE
UNLOADING COST TO ITS OVERALL CHARGE TO THE SHIPPER DOES NOT AFFECT THE
NATURE OF ITS ARRANGEMENT WITH PMT.  THE RAILROAD WAS FREE EITHER TO
USE ITS OWN EMPLOYEES TO UNLOAD THE AUTOMOBILES OR TO SUBCONTRACT THE
WORK TO ANOTHER COMPANY.  NOR DID THE PUBLICATION OF TARIFFS FOR THE
UNLOADING SERVICES AUTOMATICALLY RENDER ANYONE WHO PERFORMED THOSE
TASKS AN EMPLOYEE OF THE RAILROAD FOR FELA PURPOSES.  SEE NORMAN V.
SPOKANE-PORTLAND & S.R. CO., 101 F.SUPP.  350 (ORE.  1950), AFF'D PER
CURIAM, 192 F.2D 1020 (CA9 1951). 

/8/  PETITIONER HAS POINTED TO TESTIMONY FROM PMT EMPLOYEES WHO
STATED THAT IN THE COURSE OF THE UNLOADING OPERATION THEY HAD CONTRACT
WITH VARIOUS SOUTHERN PACIFIC EMPLOYEES, INCLUDING CLERKS, WHO WOULD
CHECK ON ARRIVING AND DEPARTING CARS, "CAR-WHACKERS," WHO WERE
RESPONSIBLE FOR CAR MAINTENANCE AND INSPECTION, AND SWITCHMEN, WHO
WOULD OCCASIONALLY ASK THE PMT EMPLOYEES TO INDICATE WHEN THEY WERE
FINISHED WORKING ON A CAR SO THAT THE SWITCH ENGINE COULD CLEAR THE
TRACKS.  THESE CONTACTS, HOWEVER, WERE PLAINLY NOT SUPERVISORY IN
NATURE AND DO NOT BUTTRESS PETITIONER'S CLAIM TO RAILROAD EMPLOYMENT. 

/9/  IN ADDITION TO THE FINDINGS DISCUSSED ABOVE, THE DISTRICT COURT
FOUND THAT PETITIONER HAD WORKED FOR PMT FOR A SUBSTANTIAL PERIOD, THAT
HE PERFORMED UNSKILLED LABOR, AND THAT HE WAS COMPENSATED BY AN HOURLY
WAGE.  WHILE THESE FACTORS ARE GENERALLY RELEVANT TO THE EMPLOYMENT
INQUIRE, SEE RESTATEMENT (SECOND) OF AGENCY 220(2)(D), (F), (G), WE
FAIL TO SEE HOW THEY AID PETITIONER HERE.  THEY MAKE IT PLAIN THAT
KELLEY WAS A GENERAL SERVANT OF PMT, BUT NEITHER THE DISTRICT COURT NOR
THE DISSENTERS EXPLAIN HOW THEY BEAR SIGNIFICANTLY ON RESPONDENT'S
CONTROL OVER OR RIGHT TO CONTROL KELLEY'S ACTIVITIES. 

/10/  THE COURT IN SHENKER V. BALTIMORE & OHIO R. CO., 374 U.S. 1
(1963), APPLIED THE ANALYSIS OF STANDARD OIL CO. V. ANDERSON, 212 U.S.
215 (1909), IN A FACTUAL SETTING SOMEWHAT ANALOGOUS TO THAT OF THE
PRESENT CASE.  THE PETITIONER IN SHENKER WAS EMPLOYED AS A JANITOR FOR
THE B&O RAILROAD.  IN ADDITION TO HIS WORK FOR THE B&O, HE MAINTAINED A
NEARBY RAIL STATION AND PERFORMED VARIOUS SERVICES FOR THE PITTSBURGH &
LAKE ERIE RAILROAD (P&LE).  ALTHOUGH PETITIONER WAS ON P&LE'S PREMISES
AND WAS DOING P&LE'S WORK WHEN HE WAS INJURED, THE COURT NOTED THAT
"THERE CAN BE NO QUESTION THAT THE PETITIONER IS AN EMPLOYEE OF THE
B&O."  ID., AT 5.  CITING ANDERSON, THE COURT WROTE: 

"(UNDER T E COMMON LAW LOANED-SERVANT DOCTRINE IMMEDIATE CONTROL AND
SUPERVISION IS CRITICAL IN DETERMINING FOR WHOM THE SERVANTS ARE
PERFORMING SERVICES.  IN THE PRESENT CASE, THE UNDISPUTED FACTS SHOW
THAT THE PETITIONER WAS AT ALL TIMES PAID BY THE B&O AND UNDER THE SOLE
SUPERVISION OF B&O EMPLOYEES.  THE INTIMATIONS OF THE B&O THAT THE
PETITIONER MIGHT HAVE BEEN GIVEN DIRECTIONS BY THE P&LE BAGGAGEMAN IS
AT MOST AN EXAMPLE OF THE MINIMUM COOPERATION NECESSARY TO CARRY OUT A
COORDINATED UNDERTAKING, AND, AS NOTED IN ANDERSON, CANNOT AMOUNT TO
CONTROL OR SUPERVISION."  ID., AT 6 (FOOTNOTE OMITTED). 

ACCORD, HULL V. PHILADELPHIA & READING R. CO., 252 U.S. 475, 479 -
480 (1920).  IN LINSTEAD V. CHESAPEAKE & OHIO R. CO., 276 U.S. 28
(1928), THE COURT HELD THAT THE BORROWED-SERVANT TEST WAS MET WHERE AN
EMPLOYER HAD MADE THE SERVICES OF SEVERAL OF ITS EMPLOYEES AVAILABLE TO
THE C&O RAILROAD FOR A SPECIFIC PURPOSE.  LINSTEAD, A CONDUCTOR
EMPLOYED BY THE BIG FOUR RAILROAD WAS INSTRUCTED TO ACCOMPANY A C&O
TRAIN ALONG C&O TRACKS BETWEEN KENTUCKY AND OHIO, UNDER THE IMMEDIATE
SUPERVISION OF A C&O TRAINMASTER.  ON THESE FACTS THE COURT HELD THAT
HE WAS THE "SPECIAL EMPLOYEE" OF THE C&O AND COULD RECOVER FROM THE
RAILROAD UNDER THE FELA. 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT. 

IN DETERMINING KELLEY'S STATUS UNDER THE FELA, THE DISTRICT JUDGE
APPARENTLY RELIED ON GENERAL AGENCY PRINCIPLES, RATHER THAN ON THE
PARTICULAR PRINCIPLES OF MASTER-SERVANT LAW.  THIS WAS ERROR, AND IT IS
THUS PROPER TO REMAND THIS CASE TO THE DISTRICT JUDGE SO THAT HE CAN
TAKE A FRESH LOOK AT THE RECORD, IN LIGHT OF THE CORRECT LEGAL
STANDARD. 

THE CORRECT STANDARD IS NOT A NOVEL ONE.  THE LAW OF MASTER AND
SERVANT HAS BEEN WITH US FOR A LONG TIME, AND ITS ADEQUATE EXPOSITION
ELSEWHERE, E.G., RESTATEMENT (SECOND) OF AGENCY 5(2), 220, 226, AND 227
RENDERS MUCH OF THE COURT'S EXTENDED DISCUSSION UNNECESSARY.  BUT MY
CHIEF PROBLEM WITH THE COURT'S OPINION IS ITS INSISTENCE UPON
DISSECTING THE PARTICULARIZED EVIDENCE IN THIS CASE.  WHETHER OR NOT
THE SOUTHERN PACIFIC CO. CONTROLLED OR HAD THE RIGHT TO CONTROL
KELLEY'S WORK IS FOR THE ORIGINAL FACTFINDER TO DETERMINE.     THE
COURT TODAY SUBSTANTIALLY INVADES THE TRIAL COURT'S FUNCTION.  IF THE
COURT WISHES TO DECIDE THE ISSUE ITSELF, A REMAND IS UNNECESSARY.  IF
THE COURT WISHES TO LEAVE THE DECISION TO THE DISTRICT JUDGE, WHO SAW
THE EVIDENCE AND HEARD THE WITNESSES, MUCH OF THE DETAILED DISCUSSION
OF THE EVIDENCE IN THE COURT'S OPINION IS GRATUITOUS. 

I BELIEVE THAT BOTH THE EFFICIENT ALLOCATION OF JUDICIAL RESOURCES
AND THE ENDS OF JUSTICE ARE BEST SERVED BY A REMAND--BUT A GENUINE
REMAND, AFFORDING THE DISTRICT JUDGE LATITUDE TO PERFORM HIS PROPER
FUNCTION AS FACTFINDER.  BECAUSE THE COURT'S OPINION BRISTLES WITH
BROAD HINTS THAT A FINDING OF FELA COVERAGE WOULD BE CLEARLY ERRONEOUS,
ITS REMAND OF THIS CASE SEEMS TO ME TO APPROACH DISINGENUOUSNESS. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

TODAY'S DECISION MARKS A RETURN TO THE ERA WHEN THE FELA WAS
INTERPRETED IN A HOSTILE AND RESTRICTIVE MANNER BY THE FEDERAL
JUDICIARY.  ACCORDINGLY, I AM CONSTRAINED TO REGISTER MY DISSENT. 

THE FIRST EMPLOYERS' LIABILITY ACT WAS ENACTED IN 1906, 34 STAT.
232, AND THIS COURT RESPONDED BY HOLDING THE ACT UNCONSTITUTIONAL. 
EMPLOYERS'  LIABILITY CASES, 207 U.S. 463 (1908).  CONGRESS TRIED AGAIN
IN 1908 AND PRODUCED THE ACT WHICH IS NOW IN EFFECT.  35 STAT. 65, 45
U.S.C. 51 ET SEQ. THIS TIME THE COURT UPHELD THE STATUTE, SECOND
EMPLOYERS' LIABILITY CASES, 223 U.S. 1 (1912), BUT JUDICIAL HOSTILITY
DID NOT END.  THE DEFENSE OF ASSUMPTION OF RISK WAS, FOR THE MOST PART,
HELD TO BE STILL AVAILABLE TO THE EMPLOYER.  SEABOARD AIR LINE R. CO.
V. HORTON, 233 U.S. 492 (1914).  THE ACT SOUGHT EXPRESSLY TO CONTROL
THE USE OF A CONTRIBUTORY NEGLIGENCE DEFENSE, BUT THE COURT
CIRCUMVENTED THIS TO A CONSIDERABLE DEGREE BY DEVELOPING THE DOCTRINE
OF "PRIMARY DUTY."  SEE GREAT NORTHERN R. CO. V. WILES, 240 U.S. 444
(1916).  FINALLY, IN 1939, THE CONGRESS DECIDED THAT FURTHER
LEGISLATION WAS NEEDED.  53 STAT. 1404.  THE RESULT WAS A MORE LIBERAL
VIEW OF THE ACT WHICH DID NOT PROVIDE THE EMPLOYER WITH SO MANY
DEFENSES.  SEE TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54
(1943). 

SINCE 1939 THIS COURT HAS INTERPRETED THE ACT IN THE SPIRIT OF THOSE
AMENDMENTS.  GRADUAL LIBERALIZATION HAS OCCURRED, AND THE NARROW,
TECHNICAL APPROACH OF EARLIER YEARS HAS BEEN ESCHEWED.  SEE W. PROSSER,
LAW OF TORTS 536 - 537 (4TH ED. 1971).  THIS DEVELOPMENT DID NOT OCCUR
WITHOUT DISSENT.  DIVISIONS OF OPINION OCCURRED ON THE MERITS AND ALSO
ON THE QUESTIONN OF WHETHER THE COURT SHOULD INVOLVE ITSELF IN THIS
AREA AT ALL.  SEE, E.G., ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S.
500 (1957).  NEVERTHELESS, THE COURT CONTINUED TO OVERSEE THE
APPLICATION OF THE ACT AND TO INSIST THAT JUDICIAL INTERPRETATIONS BE
CONSISTENT WITH THE ACT'S OVERALL PURPOSE. 

ONE OF THE QUESTIONS WHICH HAS ARISEN UNDER THE ACT HAS BEEN THE
DEFINITION OF EMPLOYMENT.  SECTION 1 OF THE FELA, 45 U.S.C. 51,
PROVIDES THAT THE CARRIER IS LIABLE IN DAMAGES FOR INJURY OR DEATH
RESULTING TO AN EMPLOYEE FROM THE CARRIER'S NEGLIGENCE.  BUT THE DAMAGE
MUST BE DONE TO THE ONE INJURED OR KILLED "WHILE HE IS EMPLOYED" BY THE
CARRIER.  IN THE PAST JUDGES HAVE SOMETIMES TRIED TO GIVE THIS
REQUIREMENT A RIGID, TECHNICAL CONTENT, BUT SUCH AN APPROACH HAS BEEN
REJECTED BY THIS COURT. 

IN BAKER V. TEXAS & PACIFIC R. CO., 359 U.S. 227 (1959), THE
PETITIONER'S DECEDENT HAD BEEN HIRED AS A WORKMAN BY W. H. NICHOLS &
CO., A FIRM WHICH HAD ENTERED INTO A CONTRACT WITH THE RESPONDENT
RAILROAD.  THE DECEDENT WAS WORKING ALONG THE MAIN LINE OF THE RAILROAD
PERFORMING VARIOUS OPERATIONS DESIGNED TO STRENGTHEN AND STABILIZE THE
ROADBED.  HE WAS KILLED WHEN HE WAS STRUCK BY A TRAIN.  THE TRIAL JUDGE
REFUSED TO SUBMIT THE ISSUE OF EMPLOYMENT TO THE JURY AND HELD THAT AS
A MATTER OF LAW THE DECEDENT WAS NOT IN AN EMPLOYMENT RELATIONSHIP WITH
THE RAILROAD AT THE TIME OF HIS DEATH.  THIS COURT REVERSED ON THE
GROUND THAT WHETHER THE DECEDENT WAS AN EMPLOYEE WITHIN THE MEANING OF
THE ACT WAS PROPERLY A QUESTION FOR THE JURY.  NOTING THAT THE TERMS
"EMPLOYEE" AND "EMPLOYED" ARE NOT USED IN ANY "SPECIAL SENSE," THE
COURT REASONED THAT THE ISSUE OF EMPLOYMENT "CONTAINS FACTUAL ELEMENTS
SUCH AS TO MAKE IT ONE FOR THE JURY UNDER APPROPRIATE INSTRUCTIONS AS
TO THE VARIOUS RELEVANT FACTORS UNDER LAW.  SEE RESTATEMENT, AGENCY 2D,
220, COMMENT C; 227, COMMENT A."  ID., AT 228. 

WARD V. ATLANTIC COAST LINE R. CO., 362 U.S. 396 (1960), INVOLVED
SIMILAR CONSIDERATIONS TO THOSE IN BAKER.  THE PETITIONER WAS EMPLOYED
AS A LABORER BY THE RAILROAD, BUT HE WAS WORKING ON HIS DAY OFF WITH A
CREW WHICH WAS FIXING A SIDING TRACK THAT BELONGED TO A THIRD PARTY. 
SINCE THE PETITIONER WAS BEING PAID BY THIS THIRD PARTY ON THE DAY OF
THE INJURY, A QUESTION EXISTED AS TO WHETHER THE PETITIONER WAS AN
EMPLOYEE OF THE RAILROAD AT THE TIME OF THE ACCIDENT.  WE HELD THAT THE
TRIAL JUDGE HAD IMPROPERLY CHARGED THE JURY TO CONSIDER ONLY ONE
FACTOR, THAT OF THE AWARENESS OF THE VICTIM THAT HE WAS WORKING FOR A
THIRD PARTY ON THE DAY IN QUESTION.  WE NOTED THAT A NUMBER OF FACTORS
MUST BE CONSIDERED UNDER RESTATEMENT (SECOND) OF AGENCY 220. 

MANY COURTS OF APPEALS HAVE BEEN CONFRONTED WITH PROBLEMS SIMILAR TO
THOSE IN BAKER AND WARD, AND THEY TOO HAVE TAKEN A NONTECHNICAL
APPROACH BASED ON THE VARIOUS ASPECTS OF THE PARTICULAR CASE
PRESENTED.  FOR EXAMPLE, IN MISSOURI K - T R. CO. V. HEARSON, 422 F.2D
1037 (CA10 1970), THE INJURED WORKER WAS A CAR CLEANER.  THE RAILROAD
HAD STOPPED DOING ITS OWN CAR CLEANING AND HAD HIRED A FIRM TO DO THE
JOB, AND THE INJURED WORKER WAS NOMINALLY THE EMPLOYEE OF THIS HIRED
FIRM.  BUT, UPON EXAMINING ALL THE FACTORS, THE COURT OF APPEALS
AFFIRMED THE DISTRICT COURT RULING THAT REASONABLE MEN COULD NOT DIFFER
IN THE CONCLUSION THAT THE VICTIM WAS IN AN EMPLOYMENT RELATIONSHIP
WITH THE RAILROAD FOR FELA PURPOSES.  IN SCHROEDER V. PENNSYLVANIA R.
CO., 397 F.2D 452 (CA7 1968), THE DECEASED WORKER WAS NOMINALLY AN
EMPLOYEE OF A TRUCKING COMPANY WHICH WAS UNDER CONTRACT TO PERFORM
CERTAIN PICKUP AND DELIVERY SERVICES FOR THE RAILROAD.  CONSIDERING ALL
THE FACTS THE COURT OF APPEALS HELD THAT THE TRIAL JUDGE HAD PROPERLY
SUBMITTED TO THE JURY THE QUESTION OF WHETHER THE DECEASED HAD BEEN
EMPLOYED BY THE RAILROAD FOR FELA PURPOSES.  MANY MORE CASES OF A
SIMILAR NATURE EXIST.  SEE, E.G., BYRNE V. PENNSYLVANIA R. CO., 262
F.2D 906 (CA3 1958); CIMORELLI V. NEW YORK CENTRAL R. CO., 148 F.2D 575
(CA6 1945).  BUT SEE, E.G., FAWCETT V. MISSOURI PACIFIC R. CO., 242
F.SUPP.  675 (WD LA. 1963), AFF'D, 347 F.2D 233 (CA5 1965). 

THE CASE MOST CLEARLY IN POINT FROM ANOTHER COURT OF APPEALS IS
SMITH V. NORFOLK & WESTERN R. CO., 407 F.2D 501 (CA4 1969).  THERE THE
INJURED WORKER WAS ALSO EMPLOYED BY A COMPANY WHICH UNLOADED AUTOS FROM
RAILROAD CARS, AND, LIKE THE PETITIONER HERE, THE WORKER FELL TO THE
GROUND FROM THE TOP TIER OF ONE OF THE CARS.  THE DISTRICT COURT
GRANTED THE WORKER SUMMARY JUDGMENT, SINCE IT HAD NO DOUBT THAT HE WAS
AN EMPLOYEE OF THE RAILROAD WITHIN THE MEANING OF THE FELA.  THE COURT
OF APPEALS AFFIRMED, USING THE FOLLOWING LANGUAGE:  "THOUGH EMPLOYEES
OF INDEPENDENT CONTRACTORS ARE NOT ACCORDED COVERAGE UNDER THE ACT . .
. IF THE INJURED WORKER IS EMPLOYED BY AN AGENT OR ADJUNCT OF THE
RAILROAD HE WILL BE TREATED AS AN EMPLOYEE OF THE RAILROAD FOR PURPOSES
OF THE ACT.  . . . THUS TRADITIONAL CONCEPTS OF AGENCY EXTEND THE
COVERAGE OF THE ACT."  ID., AT 502.  THE DISTRICT COURT IN THIS CASE
RELIED ON THE LANGUAGE OF THE COURT OF APPEALS IN SMITH V. NORFOLK &
WESTERN R. CO., SUPRA.  THE COURT TODAY HOLDS THAT THIS LANGUAGE
MISTAKES THE LAW. 

ALL SERVANTS /1/  ARE AGENTS OF THEIR MASTERS.  RESTATEMENT (SECOND)
OF AGENCY 2(2).  BUT MANY AGENTS ARE NOT SERVANTS WITHIN THE MEANING OF
220 OF THE RESTATEMENT.  FOR EXAMPLE, AN AGENT MAY BE AN INDEPENDENT
CONTRACTOR, BUT AN INDEPENDENT CONTRACTOR MAY NEVER BE A SERVANT.  ID.
14 N, COMMENT A.  IN BAKER AND WARD WE REFERRED TO THE RESTATEMENT AS A
SOURCE OF PRINCIPLES WHICH PROVIDE A BASIS FOR THE FACTUAL DECISION AS
TO WHETHER AN INDIVIDUAL IS AN EMPLOYEE FOR FELA PURPOSES.  UNDER THOSE
PRINCIPLES AN EMPLOYEE MUST BE A SERVANT AND NOT MERELY AN AGENT.  /2/ 

BECAUSE THE DISTRICT COURT IN THE PRESENT CASE USED THE WORK AGENT
RATHER THAN SERVANT OR EMPLOYEE IT COMMITTED A TECHNICAL ERROR.  BUT
OUR INQUIRY HERE SHOULD NOT BE LIMITED TO A NARROW EXAMINATION OF
WHETHER THE RIGHT FORM OF WORDS WAS USED TO SUPPORT A JUDGMENT IN FAVOR
OF A SERIOUSLY INJURED WORKER.  THE DISTRICT COURT FOUND THAT THE
REQUISITE RELATIONSHIP WAS PRESENT TO PERMIT A RECOVERY UNDER THE FELA,
AND WE SHOULD ASK WHETHER THE FINDINGS OF FACT THAT WERE MADE WERE
SUFFICIENT TO SUPPORT THAT CONCLUSION UNDER THE LEGAL STANDARD AS
CORRECTLY DESCRIBED. 

THE DISTRICT COURT MADE NUMEROUS FINDINGS OF FACT WHICH SUPPORT ITS
CONCLUSION THAT THE FELA IS APPLICABLE HERE, AND THESE FINDINGS HAVE
NOT BEEN HELD TO BE "CLEARLY ERRONEOUS" UNDER FED. RULE CIV. PROC.
52(A).  PETITIONER HAD BEEN WORKING IN THE JOB OF UNLOADING AUTOMOBILES
FROM RESPONDENT'S RAILROAD CARS FOR EIGHT YEARS.  RESTATEMENT (SECOND)
OF AGENCY 220(2)(F); 227, COMMENT C. THE WORK PERFORMED WAS THAT OF
RESPONDENT, TO BE PERFORMED IN THE GENERAL COURSE OF RESPONDENT'S
BUSINESS PURSUANT TO ITS CONTRACTUAL RESPONSIBILITIES.  ID. 220(2)(H). 
THE WORK WAS OF AN UNSKILLED VARIETY.  ID. 220(2)(D); 227, COMMENT C.
PETITIONER WAS PAID BY THE HOUR.  ID. 220(2)(G).  THE RECORD WAS
UNCLEAR AS TO WHO SUPPLIED THE NECESSARY HAMMERS AND WRENCHES, BUT
RESPONDENT CLEARLY SUPPLIED THE NECESSARY RAMPS AND WORKING AREA, AND
IT WAS RESPONSIBLE FOR SAFETY.  ID. 220(2)(E).  RESPONDENT HAD THE
IMMEDIATE RESPONSIBILITY FOR SUPERVISION AND CONTROL OF THE WORK,
THOUGH THIS TASK WAS CARRIED OUT BY OTHERS WHO, LIKE PETITIONER, WERE
SERVANTS OF PACIFIC MOTOR TRUCKING CO. ID. 220(2)(A).  /3/ 

THERE WAS BASICALLY TWO REASONS FOR THE COURT OF APPEALS' REVERSAL
OF THE DISTRICT COURT'S HOLDING IN PETITIONER'S FAVOR.  FIRST, THE
DISTRICT COURT FOUND THAT PETITIONER WAS AN EMPLOYEE OF THE TRUCKING
COMPANY.  BUT THIS DOES NOT MEAN THAT PETITIONER WAS NOT ALSO AN
EMPLOYEE OF THE RAILROAD FOR THE PURPOSES OF THE FELA.  IN BYRNE V.
PENNSYLVANIA R. CO., 262 F.2D,AT 910, THE VICTIM WAS AN EMPLOYEE OF
WESTINGHOUSE WHO WAS WORKING ON A RAILROAD LOCOMOTIVE AT THE TIME OF
HIS DEATH.  THE COURT OF APPEALS NOTED IN THAT CASE THAT "(THERE IS, OF
COURSE, NO QUESTION BUT THAT (THE VICTIM) WAS AN EMPLOYEE OF
WESTINGHOUSE.  THE ISSUE IS WHETHER SUFFICIENT EVIDENCE WAS ADDUCED THE
JURY TO CONCLUDE THAT (THE VICTIM) WAS ALSO AN EMPLOYEE OF THE
RAILROAD."  SEE RESTATEMENT (SECOND) OF AGENCY 226 AND 227.  IF THE
MERE FACT THAT AN INDIVIDUAL IS ON THE PAYROLL OF SOMEONE OTHER THAN
THE RAILROAD SUFFICED TO MAKE THAT INDIVIDUAL NOT AN EMPLOYEE OF THE
RAILROAD FOR FELA PURPOSES, THEN THIS COURT WOULD NOT HAVE FOUND IT
NECESSARY TO REVERSE IN THE BAKER CASE.  SUCH A SIMPLE TEST COULD BE
DEVISED, BUT WHETHER SUCH A CHANGE IN THE LAW IS TO BE MADE SHOULD BE
UP TO CONGRESS TO DECIDE. 

THE SECOND REASON THE COURT OF APPEALS USED FOR REVERSING THE
DISTRICT COURT WAS THAT THE DISTRICT COURT HAD REJECTED A FINDING THAT
PETITIONER WAS AN EMPLOYEE OF THE RAILROAD.  THE TRIAL JUDGE WAS
RELYING ON THE "AGENCY" LANGUAGE OF SMITH V. NORFOLK & WESTERN R. CO.,
SUPRA, AND HE THEREFORE APPARENTLY HAD HIS LABELS CONFUSED.  HE WAS
USING THE CONCEPT OF EMPLOYMENT IN A NARROW AND RESTRICTED WAY, YET WAS
EXPANDING IT TO ACCOMMODATE DECISIONS SUCH AS BAKER BY INCLUDING BOTH
EMPLOYMENT AND AGENCY RELATIONSHIPS WITHIN THE SCOPE OF THE FELA.  IF
THE DISTRICT JUDGE DID NOT FIND AN EMPLOYMENT RELATIONSHIP IN THIS
NARROW SENSE, THAT FACT IS UNIMPORTANT, FOR HE DID FIND A RELATIONSHIP
SUFFICIENT TO SATISFY THE CORRECT TEST.  WHILE HE USED LANGUAGE OF
AGENCY HE GAVE THAT LANGUAGE THE SUBSTANTIVE CONTENT OF BAKER AND OF
THE SOURCE RELIED UPON BY BAKER--RESTATEMENT (SECOND) OF AGENCY 220. 
HE MADE FINDINGS OF FACT EASILY SUFFICIENT TO SUPPORT THE EXISTENCE OF
AN EMPLOYMENT RELATIONSHIP UNDER THE CORRECT SUBSTANTIVE TEST, AND HE
IN FACT FOUND THAT THE REQUISITE RELATIONSHIP EXISTED.  THE FACT THAT
HE USED THE WORD "AGENCY" RATHER THAN THE WORD "EMPLOYMENT" TO DESCRIBE
THIS RELATIONSHIP IS THUS OF NO MORE THAN TECHNICAL, ABSTRACT CONCERN. 
THIS IS NOT THE SORT OF CONCERN THAT SHOULD MOTIVATE US IN THE FELA
CONTEXT. 

THE MAJORITY HERE HAS TAKEN A DIFFERENT TACK FROM THAT OF THE COURT
OF APPEALS.  CITING NUMEROUS CASES FROM THE ERA BEFORE THE 1939
AMENDMENTS TO THE ACT, THE MAJORITY ARGUES THAT THE RAILROAD HERE
EXERCISED INSUFFICIENT CONTROL OVER THE PETITIONER TO ESTABLISH THE
REQUISITE EMPLOYMENT RELATIONSHIP.  UNDER THE APPROACH TAKEN IN BAKER
AND WARD, HOWEVER, THE EXISTENCE OF A MASTER-SERVANT RELATIONSHIP IS TO
BE DETERMINED FROM AN EXAMINATION OF MANY FACTORS.  THIS IS QUITE
DIFFERENT FROM THE MAJORITY'S CONCENTRATION ON TECHNICAL DISTINCTIONS
REGARDING KINDS AND DEGREES OF CONTROL AND COOPERATIVE.  /4/  AS I HAVE
INDICATED, I THINK THAT A JUDGMENT IN FAVOR OF THE PETITIONER IS QUITE
JUSTIFIED ON THE BASIS OF FACTS ALREADY FOUND BY THE DISTRICT COURT.  I
HAVE NO STRONG OBJECTION TO THE DECISION THAT THE CASE BE REMANDED FOR
NEW FINDINGS IN LIGHT OF THE CORRECTLY STATED LEGAL STANDARD, BUT I
DISSENT FROM THE RIGID AND OLD-FASHIONED STANDARD OF LIABILITY WHICH
THE MAJORITY INDICATES SHOULD BE MADE APPLICABLE.     IN A STRICTLY
DOCTRINAL SENSE THIS CASE MAY NOT HAVE A GREAT IMPACT ON THE COVERAGE
OF THE FELA, BUT I FEAR THAT THE PRECEDENT SET TODAY BODES ILL FOR THE
FUTURE.  IT DISTORTS THE ACCEPTED MEANING OF THE ACT AND REFLECTS A
JUDICIAL HOSTILITY TO THE FELA OF THE KIND THAT EXISTED PRIOR TO THE
1939 AMENDMENTS. 

I WOULD REVERSE THE JUDGMENT BELOW.     /1/  THE TERM "SERVANT" AS
USED IN THE RESTATEMENT EXPRESSES THE SAME CONCEPT THAT "EMPLOYEE" DOES
WITHIN THE MEANING OF THE FELA.  RESTATEMENT (SECOND) OF AGENCY 220,
COMMENT G. 

/2/  SUPPORT FOR THIS POINT IS FOUND IN THE FACT THAT, AS NOTED BY
THE COURT OF APPEALS BELOW, CONGRESS ONCE REJECTED A PROPOSAL THAT
SUPPLIERS OF ACCESSORIAL SERVICES TO RAILROADS BE INCLUDED UNDER THE
FELA.  SEE S. REP. NO. 661, 76TH CONG., 1ST SESS., 2 (1939). 

/3/  THE VALUE OF EXAMINING MULTIPLE FACTORS SUCH AS THESE IS THAT
IT PERMITS THE ANALYST TO AVOID RELIANCE ON ABSTRACT INQUIRIES AS TO
KINDS AND DEGREES OF CONTROL.  SOME FACTORS--SUCH AS WHO IS RESPONSIBLE
FOR SUPERVISION, WHOSE WORK IS BEING PERFORMED, AND WHO SUPPLIES THE
TOOLS AND PLACE OF WORK--ARE OF OBVIOUS RELEVANCE.  OTHER FACTORS,
THOUGH PERHAPS OF LESS WEIGHT, ARE ALSO HELPFUL.  FOR EXAMPLE, THE
SKILL OF THE WORKER AND THE MANNER IN WHICH HE IS PAID ARE RELEVANT TO
THE EASE WITH WHICH CONTROL OVER HIM MAY BE SHIFTED FROM ONE MASTER TO
ANOTHER.  AND THE LENGTH OF TIME THAT THE NOMINAL SERVANT OF ONE MASTER
HAS BEEN AIDING IN THE BUSINESS OF ANOTHER IS LIKEWISE INDICATIVE OF A
SHIFT IN CONTROL. 

IT STATES SHOULD BE CONSIDERED "AMONG OTHERS."  ANOTHER FACTOR WHICH
MIGHT BE CONSIDERED IN THIS CASE IS THAT PACIFIC MOTOR TRUCKING CO., IS
A WHOLLY OWNED SUBSIDIARY OF RESPONDENT.  THE COURT OF APPEALS NOTED
THAT NO CASE HAS BEEN MADE FOR PIERCING THE CORPORATE VEIL AND THUS
DISREGARDING THE FACT THAT THE RAILROAD AND THE TRUCKING COMPANY ARE
SEPARATE ENTITIES.  INDEED, PETITIONER DOES NOT URGE THAT WE DO SO.
BRIEF FOR PETITIONER 6 N. 3.  IF THE CORPORATE VEIL WERE TO BE PIERCED
THAT WOULD PRESUMABLY END THE INQUIRY, AN INAPPROPRIATE RESULT ON THIS
RECORD.  NEVERTHELESS, IT SEEMS REASONABLE TO TAKE INTO ACCOUNT AS ONE
OF MANY FACTORS THE RELATIONSHIP BETWEEN THE TRUCKING COMPANY AND THE
RESPONDENT. 

/4/  THE MAJORITY RELIES ON TWO MODERN CASES, BAKER V. TEXAS &
PACIFIC R. CO., 359 U.S. 227 (1959), AND SHENKER V. BALTIMORE & OHIO R.
CO., 374 U.S. 1 (1963).  BUT THERE IS NOTHING IN THESE CASES TO
INDICATE THAT TECHNICAL DISTINCTIONS BETWEEN CONTROL AND COOPERATION
ARE THE ONLY SUBJECTS OF INVESTIGATION IN CONSIDERING WHETHER A MASTER
SERVANT RELATIONSHIP EXISTS UNDER THE FELA. 

MR. JUSTICE BLACKMUN, DISSENTING. 

THE COURT IN ITS DECIDED CASES HAS TRAVELED FAR IN ORDER TO ACCORD
FEDERAL EMPLOYERS' LIABILITY ACT COVERAGE TO A VARIETY OF EMPLOYMENT
SITUATIONS.  SEE, FOR EXAMPLE, SHENKER V. BALTIMORE & OHIO R. CO., 374
U.S. 1, 5 (1963), AND NORTH CAROLINA R. CO. V. ZACHARY, 232 U.S. 248,
260 (1914).  ITS MANY DECISIONS ARE NOW A WELL-CHALKED SLATE THAT
SHOULD NOT BE SIGNIFICANTLY ERASED WITHOUT GOOD REASONS.  NEITHER
SHOULD THE COURT CHANGE A MATURE AND HIGHLY DEVELOPED LEGAL STANDARD,
LONG ACCEPTED BY CONGRESS, WITHOUT EXPLAINING THOSE REASONS OR EVEN
SAYING WHAT THE EFFECT WILL BE. 

FOR ME, THE COURT'S PER CURIAM OPINION IN BAKER V. TEXAS & PACIFIC
R. CO., 359 U.S. 227 (1959), CONTROLS THIS CASE.  THERE THE INJURED
WORKMAN HAD BEEN HIRED BY A CORPORATION ENGAGED IN WORK ALONG THE
RAILROAD'S MAIN-LINE RIGHT-OF-WAY.  THE WORK CONSISTED OF PUMPING SAND
AND CEMENT INTO THE ROADBED IN ORDER TO STRENGTHEN AND STABLIZE IT.
THE WORKMAN WAS STRUCK BY A TRAIN WHILE ENGAGED AT THIS JOB.  THE
PETITIONERS CONTENDED THAT HE WAS KILLED WHILE HE WAS "EMPLOYED" BY THE
RAILROAD, WITHIN THE MEANING OF THE ACT.  EVIDENCE ON THE QUESTION WAS
INTRODUCED, BUT THE TRIAL JUDGE DECLINED TO SUBMIT THE ISSUE TO THE
JURY, HOLDING AS A MATTER OF LAW THAT THE WORKMAN WAS NOT IN SUCH A
RELATIONSHIP TO THE RAILROAD AT THE TIME OF HIS DEATH AS TO ENTITLE HIM
TO THE ACT'S PROTECTION.  THE STATE COURTS REFUSED TO DISTURB THE
JUDGMENT FOR THE RAILROAD. 

THIS COURT, HOWEVER, HELD THAT THE ACT DOES NOT USE THE TERMS
"EMPLOYEE" AND "EMPLOYED" IN ANY SPECIAL SENSE, AND THAT THE FAMILIAR
GENERAL LEGAL PROBLEMS AS TO WHOSE EMPLOYEE OR SERVANT A WORKER IS AT A
GIVEN TIME PRESENT THEMSELVES AS MATTERS OF FEDERAL LAW UNDER THE ACT. 
EACH CASE, THE COURT SAID, MUST BE DECIDED ON ITS PECULIAR FACTS AND
"'ORDINARILY NO ONE FEATURE OF THE RELATIONSHIP IS DETERMINATIVE.'" 
THE COURT CONCLUDED THAT IT WAS "PERFECTLY PLAIN" THAT THE QUESTION
"CONTAINS FACTUAL ELEMENTS SUCH AS TO MAKE IT ONE FOR THE JURY UNDER
APPROPRIATE INSTRUCTIONS AS TO THE VARIOUS RELEVANT FACTORS UNDER
LAW."  ID., AT 228.  IT POINTED OUT THAT THE PETITIONERS INTRODUCED
EVIDENCE TENDING TO PROVE THAT THE WORK "WAS PART OF THE MAINTENANCE
TASK OF THE RAILROAD"; THAT THE ROAD "FURNISHED THE MATERIAL TO BE
PUMPED INTO THE ROADBED"; AND THAT A SUPERVISOR, ADMITTEDLY IN THE
EMPLOY OF THE RAILROAD, IN THE DAILY COURSE OF THE WORK EXERCISED
DIRECTIVE CONTROL OVER THE DETAILS OF THE JOB.  IBID.  THE RAILROAD
INTRODUCED EVIDENCE TENDING TO CONTROVERT THIS.  THE COURT THEN HELD
THAT AN ISSUE FOR DETERMINATION BY THE JURY WAS PRESENTED. 

SO IT IS HERE.  KELLEY WAS INJURED AT THE RAILROAD'S LOADING-AND
UNLOADING RAMP IN SAN FRANCISCO.  HE AND OTHERS WERE UNCHAINING NEW
AUTOMOBILES FOR UNLOADING WHEN HE FELL FROM THE THIRD LEVEL OF THE
RAILROAD CAR.  HE WAS HIRED, PAID BY, AND COULD BE DISCHARGED BY THE
RAILROAD'S WHOLLY OWNED SUBSIDIARY.  ALL THE OTHERS AND DIRECTORS OF
THAT SUBSIDIARY WERE OFFICERS OR DIRECTORS OF THE RAILROAD.  THE
SUBSIDIARY WAS THE ONLY COMPANY THEN HAVING A CONTRACT WITH THE
RAILROAD TO UNLOAD CARS AT THAT RAMP.  KELLEY HAD BEEN EMPLOYED AT THIS
PARTICULAR JOB AND AT THIS SITE FOR EIGHT YEARS AND WAS PAID ON AN
HOURLY BASIS.  THE UNLOADING WAS THE RAILROAD'S RESPONSIBILITY PURSUANT
TO ITS CONTRACTUAL OBLIGATION TO ITS SHIPPER.  THE RAILROAD SUPPLIED
THE NECESSARY WORKING AREA.  THE WORK RAILROAD SUPPLIED THE NECESSARY
WORKING AREA.  THE WORK PERFORMED BY KELLEY WAS UNSKILLED.  RAILROAD
EMPLOYEES HAD THE RESPONSIBILITY DAILY TO CHECK THE SAFETY OF THE CARS
AND TO MAKE NECESSARY REPAIRS.  THERE WAS EVIDENCE THAT THE RAILROAD
EXERCISED A DEGREE OF CONTROL OVER THE UNLOADING OPERATION AND THAT PMT
EMPLOYEES PERFORMING THIS WORK FREQUENTLY FELT THEY HAD TO HEED THE
RAILROAD SUPERVISOR'S COMMAND.  /1/ 

ALL THIS, IT SEEMS TO ME, IS ENOUGH TO CREATE AN ISSUE FOR THE TRIER
OF FACT, JUST AS THE BAKER CASE ILLUSTRATES AND AS IT TEACHES.  THE
TRIER COULD FIND THAT KELLEY WAS DOING WORK OF A KIND AND IN A WAY AND
UNDER SUCH SUPERVISION OF THE SOUTHERN PACIFIC AS MADE HIM AN EMPLOYEE
OF THAT RAILROAD FOR PURPOSES OF THE FELA. 

I FEEL THE COURT, ANTE, AT 325 N. 6, GIVES UNDUE EMPHASIS TO THE
DISTRICT COURT'S TREATMENT OF FINDINGS OF FACT PROPOSED BY THE
PETITIONER.  EVERY ACTIVITY PRACTICING TRIAL ATTORNEY KNOWS THAT SOME
JUDGES READILY ADOPT FINDINGS PRESENTED BY COUNSEL; THAT OTHER JUDGES
ALMOST ALWAYS REJECT PROPOSED FINDINGS AND PREFER TO DRAFT THEIR OWN OR
HAVE THEIR CLERKS PREPARE THEM; AND THAT STILL OTHERS ADOPT A MIDDLE
COURSE.  IN THIS CASE THE DISTRICT COURT PRODUCED A JUDGMENT FOR THE
INJURED WORKMAN.  I DOUBT WHETHER THERE CAN BE MUCH SIGNIFICANCE IN THE
ADJUSTMENT-OF-PROPOSED-FINDINGS ROUTE BY WHICH THAT JUDGMENT WAS
REACHED. 

WHILE THE COURT DISCLAIMS ANY MODIFICATION OF THE STANDARDS FOR
ALLOWING QUESTIONS OF FACT IN FELA CASES TO GO TO THE JURY, ITS
DECISION HERE SUGGESTS OTHERWISE.  THE COURT IMPLIES THAT SUPERVISION
MUST BE "DAY-TO-DAY" IN ORDER TO CONSTITUTE "SUPERVISION"  FOR PURPOSES
OF CREATING "EMPLOYEE" STATUS UNDER THE FELA.  ANTE, AT 331.  DOES THIS
MEAN THAT ORDERS MUST BE ISSUED WITH A CERTAIN FREQUENCY (E.G., EVERY
DAY, OR MOST DAYS) OR MERELY IN A CERTAIN MANNER (E.G., THE "DAILY"
NORMAL "COURSE OF THE WORK,"  BAKER, SUPRA, 359 U.S.,AT 228 - 229)? 
THE COURT DOES NOT SAY.  I SUSPECT THAT TRIAL JUDGES WILL BE INCLINED
TO RESOLVE MOST DOUBTS AGAINST PLAINTIFFS IF THEIR FINDINGS ARE TO BE
SO VULNERABLE TO CHALLENGE. 

I ALSO FEAR THAT THE COURT'S HOLDING MAY BE ONE THAT OPENS THE WAY
FOR THE RAILROADS OF THIS COUNTRY TO AVOID FELA LIABILITY.  THAT WAY
APPARENTLY IS TO CONTRACT OUT LARGE PORTIONS OF MAINTENANCE AND LOADING
AND UNLOADING RESPONSIBILITIES THAT NORMALLY ARE PART OF THE RAILROAD'S
OPERATION. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS, AND I
THEREFORE DISSENT. 

/1/  THERE WAS TESTIMONY BY PMT EMPLOYEES THAT IN PRACTICE THEY TOOK
INSTRUCTIONS AND DIRECTIONS FROM SOUTHERN PACIFIC SUPERVISORS, AND THAT
FAILING TO FOLLOW THEM COULD JEOPARDIZE THEIR JOBS.  E.G., APP. 57. 

R. JAY ENGEL ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

JOHN J. CORRIGAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS DONALD O. ROY. 
..END :














JACKSON V. METROPOLITAN EDISON CO., 419 U.S. 345 


       JACKSON V. METROPOLITAN EDISON CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

    THIRD CIRCUIT

        NO. 73 - 5845.  ARGUED OCTOBER 15, 1974--DECIDED DECEMBER

        23, 1974; 483 F.2D 754, AFFIRMED. 


    PETITIONER BROUGHT SUIT AGAINST RESPONDENT, A PRIVATELY OWNED

  AND OPERATED UTILITY CORPORATION WHICH HOLDS A CERTIFICATE OF

  PUBLIC CONVENIENCE ISSUED BY THE PENNSYLVANIA UTILITY COMMISSION,

  SEEKING DAMAGES AND INJUNCTIVE RELIEF UNDER 42 U.S.C. 1983 FOR

  TERMINATION OF HER ELECTRIC SERVICE ALLEGEDLY BEFORE SHE HAD BEEN

  AFFORDED NOTICE, A HEARING, AND AN OPPORTUNITY TO PAY ANY AMOUNTS

  FOUND DUE.  PETITIONER CLAIMED THAT UNDER STATE LAW SHE WAS

  ENTITLED TO REASONABLY CONTINUOUS ELECTRIC SERVICE AND THAT

RESPONDENT'S TERMINATION FOR ALLEGED NONPAYMENT, PERMITTED BY A

  PROVISION OF ITS GENERAL TARIFF FILED WITH THE COMMISSION, WAS

  STATE ACTION DEPRIVING PETITIONER OF HER PROPERTY WITHOUT DUE

  PROCESS OF LAW AND GIVING RISE TO A CAUSE OF ACTION UNDER 1983. 

  THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S DISMISSAL OF

  PETITIONER'S COMPLAINT.  HELD:  PENNSYLVANIA IS NOT SUFFICIENTLY

  CONNECTED WITH THE CHALLENGED TERMINATION TO MAKE RESPONDENT'S

  CONDUCT ATTRIBUTABLE TO THE STATE FOR PURPOSES OF THE FOURTEENTH

AMENDMENT, PETITIONER HAVING SHOWN NO MORE THAN THAT RESPONDENT

  WAS A HEAVILY REGULATED PRIVATE UTILITY WITH A PARTIAL MONOPOLY

  AND THAT IT ELECTED TO TERMINATE SERVICE IN A MANNER THAT THE

  COMMISSION FOUND PERMISSIBLE UNDER STATE LAW.  CF. MOOSE LODGE

  NO. 107 V. IRVIS, 407 U.S. 163.  PUBLIC UTILITIES COMM'N V.

  POLLAK, 343 U.S. 451; BURTON V. WILMINGTON PARKING AUTHORITY, 365

  U.S. 715, DISTINGUISHED.  349 - 359. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ.,

  JOINED.  DOUGLAS, J., POST, P. 359, BRENNAN, J., POST, P. 364,

  AND MARSHALL, J., POST, P. 365, FILED DISSENTING OPINIONS. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENT METROPOLITAN EDISON CO. IS A PRIVATELY OWNED AND OPERATED
PENNSYLVANIA CORPORATION WHICH HOLDS A CERTIFICATE OF PUBLIC
CONVENIENCE ISSUED BY THE PENNSYLVANIA PUBLIC UTILITY COMMISSION
EMPOWERING IT TO DELIVER ELECTRICITY TO A SERVICE AREA WHICH INCLUDES
THE CITY OF YORK, PA.  AS A CONDITION OF HOLDING ITS CERTIFICATE, IT IS
SUBJECT TO EXTENSIVE REGULATION BY THE COMMISSION.  UNDER A PROVISION
OF ITS GENERAL TARIFF FILED WITH THE COMMISSION, IT HAS THE RIGHT TO
DISCONTINUE SERVICE TO ANY CUSTOMER ON REASONABLE NOTICE OF NONPAYMENT
OF BILLS.  /1/ 

PETITIONER CATHERINE JACKSON IS A RESIDENT OF YORK, WHO HAS RECEIVED
ELECTRICITY IN THE PAST FROM RESPONDENT.  UNTIL SEPTEMBER 1970,
PETITIONER RECEIVED ELECTRIC SERVICE TO HER HOME IN YORK UNDER AN
ACCOUNT WITH RESPONDENT IN HER OWN NAME.  WHEN HER ACCOUNT WAS
TERMINATED BECAUSE OF ASSERTED DELINQUENCY IN PAYMENTS DUE FOR SERVICE,
A NEW ACCOUNT WITH RESPONDENT WAS OPENED IN THE NAME OF ONE JAMES
DODSON, ANOTHER OCCUPANT OF THE RESIDENCE, AND SERVICE TO THE RESIDENCE
WAS RESUMED.  THERE IS A DISPUTE AS TO WHETHER PAYMENTS DUE UNDER THE
DODSON ACCOUNT FOR SERVICES PROVIDED DURING THIS PERIOD WERE EVER
MADE.  IN AUGUST 1971, DODSON LEFT THE RESIDENCE.  SERVICE CONTINUED
THEREAFTER BUT CONCEDEDLY NO PAYMENTS WERE MADE.  PETITIONER STATES
THAT NO BILLS WERE RECEIVED DURING THIS PERIOD. 

ON OCTOBER 6, 1971, EMPLOYEES OF METROPOLITAN CAME TO THE RESIDENCE
AND INQUIRED AS TO DODSON'S PRESENT ADDRESS.  PETITIONER STATED THAT IT
WAS UNKNOWN TO HER.  ON THE FOLLOWING DAY, ANOTHER EMPLOYEE VISITED THE
RESIDENCE AND INFORMED PETITIONER THAT THE METER HAD BEEN TAMPERED WITH
SO AS NOT TO REGISTER AMOUNTS USED.  SHE DISCLAIMED KNOWLEDGE OF THIS
AND REQUESTED THAT THE SERVICE ACCOUNT FOR HER HOME BE SHIFTED FROM
DODSON'S NAME TO THAT OF ONE ROBERT JACKSON, LATER IDENTIFIED AS HER 12
YEAR-OLD SON.  FOUR DAYS LATER ON OCTOBER 11, 1971, WITHOUT FURTHER
NOTICE TO PETITIONER, METROPOLITAN EMPLOYEES DISCONNECTED HER SERVICE. 

PETITIONER THEN FILED SUIT AGAINST METROPOLITAN IN THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNDER THE CIVIL
RIGHTS ACT OF 1871, 42 U.S.C. 1983, SEEKING DAMAGES FOR THE TERMINATION
AND AN INJUNCTION REQUIRING METROPOLITAN TO CONTINUE PROVIDING POWER TO
HER RESIDENCE UNTIL SHE HAD BEEN AFFORDED NOTICE, A HEARING, AND AN
OPPORTUNITY TO PAY ANY AMOUNTS FOUND DUE.  SHE URGED THAT UNDER STATE
LAW SHE HAD AN ENTITLEMENT TO REASONABLY CONTINUOUS ELECTRICAL SERVICE
TO HER HOME /2/  AND THAT METROPOLITAN'S TERMINATION OF HER SERVICE FOR
ALLEGED NONPAYMENT, ACTION ALLOWED BY A PROVISION OF ITS GENERAL TARIFF
FILED WITH THE COMMISSION, CONSTITUTED "STATE ACTION" DEPRIVING HER OF
PROPERTY IN VIOLATION OF THE FOURTEENTH AMENDMENT'S GUARANTEE OF DUE
PROCESS OF LAW.  /3/ 

THE DISTRICT COURT GRANTED METROPOLITAN'S MOTION TO DISMISS
PETITIONER'S COMPLAINT ON THE GROUND THAT THE TERMINATION DID NOT
CONSTITUTE STATE ACTION AND HENCE WAS NOT SUBJECT TO JUDICIAL SCRUTINY
UNDER THE FOURTEENTH AMENDMENT.  /4/  ON APPEAL, THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED, ALSO FINDING AN
ABSENCE OF STATE ACTION.  /5/  WE GRANTED CERTIORARI TO REVIEW THIS
JUDGMENT.  /6/ 

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PROVIDES:  "(NOR
SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY,
WITHOUR DUE PROCESS OF LAW."  IN 1883, THIS COURT IN THE CIVIL RIGHTS
CASES, 109 U.S. 3, AFFIRMED THE ESSENTIAL DICHOTOMY SET FORTH IN THAT
AMENDMENT BETWEEN DEPRIVATION BY THE STATE, SUBJECT TO SCRUTINY UNDER
ITS PROVISIONS, AND PRIVATE CONDUCT, "HOWEVER DISCRIMINATORY OR
WRONGFUL," AGAINST WHICH THE FOURTEENTH AMENDMENT OFFERS NO SHIELD. 
SHELLEY V. KRAEMER, 334 U.S. 1 (1948). 

WE HAVE REITERATED THAT DISTINCTION ON MORE THAN ONE OCCASION SINCE
THEN.  SEE, E.G., EVANS V. ABNEY, 396 U.S. 435, 445 (1970); MOOSE LODGE
NO. 107 V. IRVIS, 407 U.S. 163, 171 - 179 (1972).  WHILE THE PRINCIPLE
THAT PRIVATE ACTION IS IMMUNE FROM THE RESTRICTIONS OF THE FOURTEENTH
AMENDMENT IS WELL ESTABLISHED AND EASILY STATED, THE QUESTION WHETHER
PARTICULAR CONDUCT IS "PRIVATE," ON THE ONE HAND, OR "STATE ACTION," ON
THE OTHER, FREQUENTLY ADMITS OF NO EASY ANSWER.  BURTON V. WILMINGTON
PARKING AUTHORITY, 365 U.S. 715, 723 (1961); MOOSE LODGE NO. 107 V.
IRVIS, SUPRA, AT 172. 

HERE THE ACTION COMPLAINED OF WAS TAKEN BY A UTILITY COMPANY WHICH
IS PRIVATELY OWNED AND OPERATED, BUT WHICH IN MANY PARTICULARS OF ITS
BUSINESS IS SUBJECT TO EXTENSIVE STATE REGULATION.  THE MERE FACT THAT
A BUSINESS IS SUBJECT TO STATE REGULATION DOES NOT BY ITSELF CONVERT
ITS ACTION INTO THAT OF THE STATE FOR PURPOSES OF THE FOURTEENTH
AMENDMENT.  /7/  ID., AT 176 - 177.  NOR DOES THE FACT THAT THE
REGULATION IS EXTENSIVE AND DETAILED, AS IN THE CASE OF MOST PUBLIC
UTILITIES, DO SO.  PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451, 462
(1952).  IT MAY WELL BE THAT ACTS OF A HEAVILY REGULATED UTILITY WITH
AT LEAST SOMETHING OF A GOVERNMENTALLY PROTECTED MONOPOLY WILL MORE
READILY BE FOUND TO BE "STATE" ACTS THAN WILL THE ACTS OF AN ENTITY
LACKING THESE CHARACTERISTICS.  BUT THE INQUIRY MUST BE WHETHER THERE
IS A SUFFICIENTLY CLOSE NEXUS BETWEEN THE STATE AND THE CHALLENGED
ACTION OF THE REGULATED ENTITY SO THAT THE ACTION OF THE LATTER MAY BE
FAIRLY TREATED AS THAT OF THE STATE ITSELF.  MOOSE LODGE NO. 107,
SUPRA, AT 176.  THE TRUE NATURE OF THE STATE'S INVOLVEMENT MAY NOT BE
IMMEDIATELY OBVIOUS, AND DETAILED INQUIRY MAY BE REQUIRED IN ORDER TO
DETERMINE WHETHER THE TEST IS MET.  BURTON V. WILMINGTON PARKING
AUTHORITY, SUPRA. 

PETITIONER ADVANCES A SERIES OF CONTENTIONS WHICH, IN HER VIEW, LEAD
TO THE CONCLUSION THAT THIS CASE SHOULD FALL ON THE BURTON SIDE OF THE
LINE DRAWN IN THE CIVIL RIGHTS CASES, SUPRA, RATHER THAN ON THE MOOSE
LODGE SIDE OF THAT LINE.  WE FIND NONE OF THEM PERSUASIVE. 

PETITIONER FIRST ARGUES THAT "STATE ACTION" IS PRESENT BECAUSE OF
THE MONOPOLY STATUS ALLEGEDLY CONFERRED UPON METROPOLITAN BY THE STATE
OF PENNSYLVANIA.  AS A FACTUAL MATTER, IT MAY WELL BE DOUBTED THAT THE
STATE EVER GRANTED OR GUARANTEED METROPOLITAN A MONOPOLY.  /8/  BUT
ASSUMING THAT IT HAD, THIS FACT IS NOT DETERMINATIVE IN CONSIDERING
WHETHER METROPOLITAN'S TERMINATION OF SERVICE TO PETITIONER WAS "STATE
ACTION" FOR PURPOSES OF THE FOURTEENTH AMENDMENT.  IN POLLAK, SUPRA,
WHERE THE COURT DEALT WITH THE ACTIVITIES OF THE DISTRICT OF COLUMBIA
TRANSIT CO., A CONGRESSIONALLY ESTABLISHED MONOPOLY, WE EXPRESSLY
DISCLAIMED RELIANCE ON THE MONOPOLY STATUS OF THE TRANSIT AUTHORITY. 
ID., AT 462.  SIMILARLY, ALTHOUGH CERTAIN MONOPOLY ASPECTS WERE
PRESENTED IN MOOSE LODGE NO. 107, SUPRA, WE FOUND THAT THE LODGE'S
ACTION WAS NOT SUBJECT TO THE PROVISIONS OF THE FOURTEENTH AMENDMENT. 
IN EACH OF THOSE CASES, THERE WAS INSUFFICIENT RELATIONSHIP BETWEEN THE
CHALLENGED ACTIONS OF THE ENTITIES INVOLVED AND THEIR MONOPOLY STATUS. 
THERE IS NO INDICATION OF ANY GREATER CONNECTION HERE. 

PETITIONER NEXT URGES THAT STATE ACTION IS PRESENT BECAUSE
RESPONDENT PROVIDES AN ESSENTIAL PUBLIC SERVICE REQUIRED TO BE SUPPLIED
ON A REASONABLY CONTINUOUS BASIS BY PA. STAT. ANN., TIT. 66, 1171
(1959), AND HENCE PERFORMS A "PUBLIC FUNCTION."  WE HAVE, OF COURSE,
FOUND STATE ACTION PRESENT IN THE EXERCISE BY A PRIVATE ENTITY OF
POWERS TRADITIONALLY EXCLUSIVELY RESERVED TO THE STATE.  SEE, E.G.,
NIXON V. CONDON, 286 U.S. 73 (1932) (ELECTION); TERRY V. ADAMS, 345
U.S. 461 (1953) (ELECTION); MARSH V. ALABAMA, 326 U.S. 501 (1946)
(COMPANY TOWN); EVANS V. NEWTON, 382 U.S. 296 (1966) (MUNICIPAL PARK). 
IF WE WERE DEALING WITH THE EXERCISE BY METROPOLITAN OF SOME POWER
DELEGATED TO IT BY THE STATE WHICH IS TRADITIONALLY ASSOCIATED WITH
SOVEREIGNTY, SUCH AS EMINENT DOMAIN, OUR CASE WOULD BE QUITE A
DIFFERENT ONE.  BUT WHILE THE PENNSYLVANIA STATUTE IMPOSES AN
OBLIGATION TO FURNISH SERVICE ON REGULATED UTILITIES, IT IMPOSES NO
SUCH OBLIGATIONS ON THE STATE.  THE PENNSYLVANIA COURTS HAVE REJECTED
THE CONTENTION THAT THE FURNISHING OF UTILITY SERVICES ARE EITHER STATE
FUNCTIONS OR MUNICIPAL DUTIES.  GIRARD LIFE INSURANCE CO. V. CITY OF
PHILADELPHIA, 88 PA. 393 (1879); BAILY V. PHILADELPHIA, 184 PA. 594, 39
A. 494 (1898). 

PERHAPS IN RECOGNITION OF THE FACT THAT THE SUPPLYING OF UTILITY
SERVICE IS NOT TRADITIONALLY THE EXCLUSIVE PREROGATIVE OF THE STATE,
PETITIONER INVITES THE EXPANSION OF THE DOCTRINE OF THIS LIMITED LINE
OF CASES INTO A BROAD PRINCIPLE THAT ALL BUSINESSES "AFFECTED WITH THE
PUBLIC INTEREST" ARE STATE ACTORS IN ALL THEIR ACTIONS. 

WE DECLINE THE INVITATION FOR REASONS STATED LONG AGO IN NEBBIA V.
NEW YORK, 291 U.S. 502 (1934), IN THE COURSE OF REJECTING A SUBSTANTIVE
DUE PROCESS ATTACK ON STATE LEGISLATION: 

     "IT IS CLEAR THAT THERE IS NO CLOSED CLASS OR CATEGORY OF

  BUSINESSES AFFECTED WITH A PUBLIC INTEREST.  . . . THE PHRASE

  'AFFECTED WITH A PUBLIC INTEREST' CAN, IN THE NATURE OF THINGS,

  MEAN NO MORE THAN THAT AN INDUSTRY, FOR ADEQUATE REASON, IS

  SUBJECT TO CONTROL FOR THE PUBLIC GOOD.  IN SEVERAL OF THE

  DECISIONS OF THIS COURT WHEREIN THE EXPRESSIONS 'AFFECTED WITH A

  PUBLIC INTEREST,'  AND 'CLOTHED WITH A PUBLIC USE,' HAVE BEEN

 BROUGHT FORWARD AS THE CRITERIA . . . IT HAS BEEN ADMITTED THAT

  THEY ARE NOT SUSCEPTIBLE OF DEFINITION AND FORM AN UNSATISFACTORY

  TEST.  . . ."  ID., AT 536. 

SEE, E.G., TYSON & BROTHER V. BANTON, 273 U.S. 418, 451 (1927) (STONE,
J., DISSENTING). 

DOCTORS, OPTOMETRISTS, LAWYERS, METROPOLITAN, AND NEBBIA'S UPSTATE
NEW YORK GROCERY SELLING A QUART OF MILK ARE ALL IN REGULATED
BUSINESSES, PROVIDING ARGUABLY ESSENTIAL GOODS AND SERVICES, "AFFECTED
WITH A PUBLIC INTEREST."  WE DO NOT BELIEVE THAT SUCH A STATUS CONVERTS
THEIR EVERY ACTION, ABSENT MORE, INTO THAT OF THE STATE.  /9/ 

WE ALSO REJECT THE NOTION THAT METROPOLITAN'S TERMINATION IS STATE
ACTION BECAUSE THE STATE "HAS SPECIFICALLY AUTHORIZED AND APPROVED" THE
TERMINATION PRACTICE.  IN THE INSTANT CASE, METROLPOLITAN FILED WITH
THE PUBLIC UTILITIES COMMISSION A GENERAL TARIFF--A PROVISION OF WHICH
STATES METROPOLITAN'S RIGHT TO TERMINATE SERVICE FOR NONPAYMENT.  /10/
THIS PROVISION HAS APPEARED IN METROPOLITAN'S PREVIOUSLY FILED TARIFFS
FOR MANY YEARS AND HAS NEVER BEEN THE SUBJECT OF A HEARING OR OTHER
SCRUTINY BY THE COMMISSION.  /11/  ALTHOUGH THE COMMISSION DID HOLD
HEARINGS ON PORTIONS OF METROPOLITAN'S GENERAL TARIFF RELATING TO A
GENERAL RATE INCREASE, IT NEVER EVEN CONSIDERED THE REINSERTION OF THIS
PROVISION IN THE NEWLY FILED GENERAL TARIFF.  /12/  THE PROVISION
BECAME EFFECTIVE 60 DAYS AFTER FILING WHEN NOT DISAPPROVED BY THE
COMMISSION.  /13/ 

AS A THRESHOLD MATTER, IT IS LESS THAN CLEAR UNDER STATE LAW THAT
METROPOLITAN WAS EVEN REQUIRED TO FILE THIS PROVISION AS PART OF ITS
TARIFF OR THAT THE COMMISSION WOULD HAVE HAD THE POWER TO DISAPPROVE
IT.  /14/  THE DISTRICT COURT OBSERVED THAT THE SOLE CONNECTION OF THE
COMMISSION WITH THIS REGULATION WAS METROPOLITAN'S SIMPLE NOTICE FILING
WITH THE COMMISSION AND THE LACK OF ANY COMMISSION ACTION TO PROHIBIT
IT.  /15/ 

THE CASE MOST HEAVILY RELIED ON BY PETITIONER IS PUBLIC UTILITIES
COMM'N V. POLLAK, SUPRA.  THERE THE COURT DEALT WITH THE CONTENTION
THAT CAPITAL TRANSIT'S INSTALLATION OF A PIPED MUSIC SYSTEM ON ITS
BUSES VIOLATED THE FIRST AMENDMENT RIGHTS OF THE BUS RIDERS.  IT IS NOT
ENTIRELY CLEAR WHETHER THE COURT ALTERNATIVELY HELD THAT CAPITAL
TRANSIT'S ACTION WAS ACTION OF THE "STATE" FOR FIRST AMENDMENT
PURPOSES, OR WHETHER IT MERELY ASSUMED, ARGUENDO, THAT IT WAS AND WENT
ON TO RESOLVE THE FIRST AMENDMENT QUESTION ADVERSELY TO THE BUS
RIDERS.  /16/  IN EITHER EVENT, THE NATURE OF THE STATE INVOLVEMENT
THERE WAS QUITE DIFFERENT THAN IT IS HERE.  THE DISTRICT OF COLUMBIA
PUBLIC UTILITIES COMMISSION, ON ITS OWN MOTION, COMMENCED AN
INVESTIGATION OF THE EFFECTS OF THE PIPED MUSIC, AND AFTER A FULL
HEARING CONCLUDED NOT ONLY THAT CAPITAL TRANSIT'S PRACTICES WERE "NOT
INCONSISTENT WITH PUBLIC CONVENIENCE, COMFORT, AND SAFETY," 81
P.U.R.(N.S.)  122, 126 (1950), BUT ALSO THAT THE PRACTICE "IN FACT,
THROUGH THE CREATION OF BETTER WILL AMONG PASSENGERS, . . . TENDS TO
IMPROVE THE CONDITIONS UNDER WHICH THE PUBLIC RIDE."  IBID.  HERE, ON
THE OTHER HAND, THERE WAS NO SUCH IMPRIMATUR PLACED ON THE PRACTICE OF
METROPOLITAN ABOUT WHICH PETITIONER COMPLAINS.  THE NATURE OF
GOVERNMENTAL REGULATION OF PRIVATE UTILITIES IS SUCH THAT A UTILITY MAY
FREQUENTLY BE REQUIRED BY THE STATE REGULATORY SCHEME TO OBTAIN
APPROVAL FOR PRACTICES A BUSINESS REGULATED IN LESS DETAIL WOULD BE
FREE TO INSTITUTE WITHOUT ANY APPROVAL FROM A REGULATORY BODY. 
APPROVAL BY A STATE UTILITY COMMISSION OF SUCH A REQUEST FROM A
REGULATED UTILITY, WHERE THE COMMISSION HAS NOT PUT ITS OWN WEIGHT ON
THE SIDE OF THE PROPOSED PRACTICE BY ORDERING IT, DOES NOT TRANSMUTE A
PRACTICE INITIATED BY THE UTILITY AND APPROVED BY THE COMMISSION INTO
"STATE ACTION."  AT MOST, THE COMMISSION'S FAILURE TO OVERTURN THIS
PRACTICE AMOUNTED TO NO MORE THAN A DETERMINATION THAT A PENNSYLVANIA
UTILITY WAS AUTHORIZED TO EMPLOY SUCH A PRACTICE IF IT SO DESIRED. 
RESPONDENT'S EXERCISE OF THE CHOICE ALLOWED BY STATE LAW WHERE THE
INITIATIVE COMES FROM IT AND NOT FROM THE STATE, /17/  DOES NOT MAKE
ITS ACTION IN DOING SO "STATE ACTION" FOR PURPOSES OF THE FOURTEENTH
AMENDMENT.     WE ALSO FIND ABSENT IN THE INSTANT CASE THE SYMBIOTIC
RELATIONSHIP PRESENTED IN BURTON V. WILMINGTON PARKING AUTHORITY, 365
U.S. 715 (1961).  THERE WHERE A PRIVATE LESSEE, WHO PRACTICED RACIAL
DISCRIMINATION, LEASED SPACE FOR A RESTAURANT FROM A STATE PARKING
AUTHORITY IN A PUBLICLY OWNED BUILDING, THE COURT HELD THAT THE STATE
HAD SO FAR INSINUATED ITSELF INTO A POSITION OF INTERDEPENDENCE WITH
THE RESTAURANT THAT IT WAS A JOINT PARTICIPANT IN THE ENTERPRISE.  ID.,
AT 725.  WE CAUTIONED, HOWEVER, THAT WHILE "A MULTITUDE OF
RELATIONSHIPS MIGHT APPEAR TO SOME TO FALL WITHIN THE AMENDMENT'S
EMBRACE," DIFFERENCES IN CIRCUMSTANCES BEGET DIFFERENCES IN LAW,
LIMITING THE ACTUAL HOLDING TO LESSEES OF PUBLIC PROPERTY.  ID., AT
726. 

METROPOLITAN IS A PRIVATELY OWNED CORPORATION, AND IT DOES NOT LEASE
ITS FACILITIES FROM THE STATE OF PENNSYLVANIA.  IT ALONE IS RESPONSIBLE
FOR THE PROVISION OF POWER TO ITS CUSTOMERS.  IN COMMON WITH ALL
CORPORATIONS OF THE STATE IT PAYS TAXES TO THE STATE, AND IT IS SUBJECT
TO A FORM OF EXTENSIVE REGULATIONS BY THE STATE IN A WAY THAT MOST
OTHER BUSINESS ENTERPRISES ARE NOT.  BUT THIS WAS LIKEWISE TRUE OF THE
APPELLANT CLUB IN MOOSE LODGE NO. 107 V. IRVIS, SUPRA, WHERE WE SAID: 

     "HOWEVER DETAILED THIS TYPE OF REGULATION MAY BE IN SOME

  PARTICULARS, IT CANNOT BE SAID TO IN ANY WAY FOSTER OR ENCOURAGE

  RACIAL DISCRIMINATION.  NOR CAN IT BE SAID TO MAKE THE STATE IN

  ANY REALISTIC SENSE A PARTNER OR EVEN A JOINT VENTURER IN THE

CLUB'S ENTERPRISE."  407 U.S.,AT 176 - 177. 

ALL OF PETITIONER'S ARGUMENTS TAKEN TOGETHER SHOW NO MORE THAN THAT
METROPOLITAN WAS A HEAVILY REGULATED PRIVATELY OWNED UTILITY, ENJOYING
AT LEAST A PARTIAL MONOPOLY IN THE PROVIDING OF ELECTRICAL SERVICE
WITHIN ITS TERRITORY, AND THAT IT ELECTED TO TERMINATE SERVICE TO
PETITIONER IN A MANNER WHICH THE PENNSYLVANIA PUBLIC UTILITY COMMISSION
FOUND PERMISSIBLE UNDER STATE LAW.  UNDER OUR DECISION THIS IS NOT
SUFFICIENT TO CONNECT THE STATE OF PENNSYLVANIA WITH RESPONDENT'S
ACTION SO AS TO MAKE THE LATTER'S CONDUCT ATTRIBUTABLE TO THE STATE FOR
PURPOSES OF THE FOURTEENTH AMENDMENT. 

WE CONCLUDE THAT THE STATE OF PENNSYLVANIA IS NOT SUFFICIENTLY
CONNECTED WITH RESPONDENT'S ACTION IN TERMINATING PETITIONER'S SERVICE
SO AS TO MAKE RESPONDENT'S CONDUCT IN SO DOING ATTRIBUTABLE TO THE
STATE FOR PURPOSES OF THE FOURTEENTH AMENDMENT.  WE THEREFORE HAVE NO
OCCASION TO DECIDE WHETHER PETITIONER'S CLAIM TO CONTINUED SERVICE WAS
"PROPERTY" FOR PURPOSES OF THAT AMENDMENT, OR WHETHER "DUE PROCESS OF
LAW"  WOULD REQUIRE A STATE TAKING SIMILAR ACTION TO ACCORD PETITIONER
THE PROCEDURAL RIGHTS FOR WHICH SHE CONTENDS.  THE JUDGMENT OF THE
COURT OF APPEALS FOR THE THIRD CIRCUIT IS THEREFORE

  AFFIRMED. 

/1/  METROPOLITAN EDISON COMPANY ELECTRICAL TARIFF, ELECTRIC PA.
P.U.C. NO. 41, RULE 15.  THIS PORTION OF METROPOLITAN'S GENERAL TARIFF,
FILED WITH THE UTILITY COMMISSION UNDER THE NOTICE FILING REQUIREMENT
OF PA. STAT. ANN., TIT. 66, 1142 (1959) (SINCE THE GENERAL TARIFF
INVOLVED A RATE INCREASE), PROVIDES IN PERTINENT PART: 

"(15)--CAUSE FOR DISCONTINUANCE OF SERVICE. 

"COMPANY RESERVES THE RIGHT TO DISCONTINUE ITS SERVICE ON REASONABLE
NOTICE AND TO REMOVE ITS EQUIPMENT IN CASE OF NONPAYMENT OF BILL.  . .
." 

ITS FILED TARRIFF ALSO GIVES IT THE RIGHT TO TERMINATE SERVICE FOR
FRAUD OR FOR TAMPERING WITH A METER BUT METROPOLITAN DID NOT SEEK TO
ASSERT THESE GROUNDS BELOW. 

/2/  THE BASIS FOR THIS CLAIMED ENTITLEMENT IS PA. STAT. ANN., TIT.
66, 1171 (1959), PROVIDING IN PART: 

"EVERY PUBLIC UTILITY SHALL FURNISH AND MAINTAIN ADEQUATE,
EFFICIENT, SAFE, AND REASONABLE SERVICE AND FACILITIES.  . . . SUCH
SERVICE ALSO SHALL BE REASONABLE CONTINUOUS AND WITHOUT UNREASONABLE
INTERRUPTIONS OR DELAY.  . . ." 

MRS. JACKSON FINDS IN THIS PROVISION A STATE LAW ENTITLEMENT IN HER
TO CONTINUING UTILITY SERVICE TO HER RESIDENCE.  SHE REASONS THAT UNDER
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT SHE CANNOT BE
DEPRIVED OF THIS ENTITLEMENT TO UTILITY SERVICE WITHOUT ADEQUATE NOTICE
AND A HEARING BEFORE AN IMPARTIAL BODY:  UNTIL THESE ARE COMPLETED, HER
SERVICE MUST CONTINUE.  BECAUSE OF OUR CONCLUSION ON THE THRESHOLD
QUESTION OF STATE ACTION, WE DO NOT REACH QUESTIONS RELATING TO THE
EXISTENCE OF A PROPERTY INTEREST OR OF WHAT PROCEDURAL GUARANTEES THE
FOURTEENTH AMENDMENT WOULD REQUIRE IF A PROPERTY INTEREST WERE FOUND TO
EXIST. 

MR. JUSTICE BRENNAN, DISSENTING, POST, AT 364, CONCLUDES THAT THERE
IS NO JUSTICIABLE CONTROVERSY BETWEEN PETITIONER AND RESPONDENT BECAUSE
WHATEVER ENTITLEMENT TO SERVICE PETITIONER HAD WAS PREVIOUSLY
TERMINATED BY RESPONDENT IN ACCORDANCE WITH ITS TARIFF.  WE DO NOT
BELIEVE THIS TO BE ANY LESS A DETERMINATION OF THE MERITS OF THE ACTION
THAN IS OUR CONCLUSION THAT WHATEVER DEPRIVATION SHE MAY HAVE SUFFERED
WAS NOT CAUSED BY THE STATE.  ISSUES OF WHETHER A CLAIMED ENTITLEMENT
IS "PROPERTY"  WITHIN THE MEANING OF THE DUE PROCESS CLAUSE, BOARD OF
REGENTS V. ROTH, 408 U.S. 564 (1972), AND WHETHER IF SO ITS DEPRIVATION
WAS CONSISTENT WITH DUE PROCESS, SEE ARNETT V. KENNEDY, 416 U.S. 134
(1974), ARE THEMSELVES CONSTITUTIONAL QUESTIONS WHICH WE FIND NO
OCCASION TO REACH IN THIS CASE. 

/3/  SECTION 1 OF THE FOURTEENTH AMENDMENT PROVIDES IN PART: 

"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." 

/4/  THE DECISION IS REPORTED AT 348 F.SUPP.  954 (1972). 

/5/  THE DECISION IS REPORTED AT 483 F.2D 754 (1973). 

/6/  415 U.S. 12 (1974).  COMPARE KADLEC V. ILLINOIS BELL TELEPHONE
CO., 407 F.2D 624 (CA7), CERT. DENIED, 396 U.S. 846 (1969); LUCAS V.
WISCONSIN ELECTRIC POWER CO., 466 F.2D 638 (CA7 1972), CERT. DENIED,
409 U.S. 1114 (1973), WITH PALMER V. COLUMBIA GAS OF OHIO, INC., 479
F.2D 153 (CA6 1973), MODIFIED IN TURNER V. IMPALA MOTORS, 503 F.2D 607
(CA6 1974).  CF. IHRKE V. NORTHERN STATES POWER CO., 459 F.2D 566
(CA8), VACATED AS MOOT, 409 U.S. 815 (1972). 

/7/  ENTERPRISES SUBJECT TO THE SAME REGULATORY SYSTEM AS
METROPOLITAN ARE ENUMERATED IN THE DEFINITION OF "PUBLIC UTILITY"
CONTAINED IN PA. STAT. ANN., TIT. 66, 1102(17) (1959 AND SUPP. 1794 -
1975).  INCLUDED IN THIS DEFINITION ARE ALL COMPANIES ENGAGED IN
PROVIDING GAS, POWER, OR WATER; ALL COMMON CARRIERS, PIPELINE
COMPANIES, TELEPHONE AND TELEGRAPH COMPANIES, SEWAGE COLLECTION AND
DISPOSAL COMPANIES; AND CORPORATIONS AFFILIATED WITH ANY COMPANY
ENGAGING IN SUCH ACTIVITIES.  AMONG SOME OF THE ENTERPRISES HELD
SUBJECT TO THIS REGULATORY SCHEME ARE FREIGHT FORWARDING AND STORAGE
COMPANIES (HIGHWAY FREIGHT CO. V. PUBLIC SERVICE COMM'N, 108 PA.SUPER. 
178, 164 A. 835 (1933)), REAL ESTATE DEVELOPERS WHO, INCIDENT TO THEIR
BUSINESS, PROVIDE WATER SERVICES (SAYRE LAND CO. V. PENNSYLVANIA PUBLIC
UTILITY COMM'N, 21 D.& C.2D 469 (1959)), AND INDIVIDUALLY OWNED
TAXICABS.  PENNSYLVANIA PUBLIC UTILITY COMM'N V. ISRAEL, 356 PA. 400,
52 A.2D 317 (1947).  IN PHILADELPHIA RURAL TRANSIT V. CO. PHILADELPHIA,
309 PA. 84, 93, 159 A. 861, 864 (1932), THE COURT ESTIMATED THAT THERE
WERE 26 DISTINCT TYPES OF ENTERPRISES SUBJECT TO THIS REGULATORY
SYSTEM, AND A FAIR READING OF PENNSYLVANIA LAW INDICATES A SUBSTANTIAL
EXPANSION OF INCLUDED ENTERPRISES SINCE THAT CASE.  THE INCIDENTS OF
REGULATION DO NOT APPEAR MATERIALLY DIFFERENT BETWEEN ENTERPRISES.  IF
THE MERE EXISTENCE OF THIS REGULATORY SCHEME MADE METROPOLITAN'S ACTION
THAT OF THE STATE, THEN PRESUMABLY THE ACTIONS OF A LONE PHILADELPHIA
CAB DRIVER COULD ALSO BE FAIRLY TREATED AS THOSE OF THE STATE OF
PENNSYLVANIA. 

/8/  IT IS PROVIDED IN PA. STAT. ANN. TIT. 66, 1121 (SUPP. 1974 -
1975), THAT ISSUANCE OF A CERTIFICATE OF PUBLIC CONVENIENCE IS A
PREREQUISITE FOR ENGAGING IN THE UTILITY BUSINESS IN PENNSYLVANIA.  THE
REQUIREMENTS FOR OBTAINING SUCH A CERTIFICATE ARE DESCRIBED IN PA.
STAT. ANN. TIT. 66, 1122, 1123 (1959 AND SUPP. 1974 - 1975).  THERE IS
NOTHING IN EITHER METROPOLITAN'S CERTIFICATE OR IN THE STATUTES UNDER
WHICH IT WAS ISSUED INDICATING THAT THE STATE HAS GRANTED OR GUARANTEED
TO METROPOLITAN MONOPOLY STATUS.  IN FACT METROPOLITAN DOES FACE
COMPETITION WITHIN PORTIONS OF ITS SERVICE AREA FROM ANOTHER PRIVATE
UTILITY COMPANY AND FROM MUNICIPAL UTILITY COMPANIES.  METROPOLITAN WAS
ORGANIZED IN 1874, 39 YEARS BEFORE PENNSYLVANIA'S ADOPTION OF ITS FIRST
UTILITY REGULATORY SCHEME IN 1913.  THERE IS NO INDICATION THAT IT
FACED ANY GREATER COMPETITION IN 1912 THAN TODAY.  AS PETITIONER
ADMITS, SUCH PUBLIC UTILITY COMPANIES ARE NATURAL MONOPOLIES CREATED BY
THE ECONOMIC FORCES OF HIGH THRESHOLD CAPITAL REQUIREMENTS AND
VIRTUALLY UNLIMITED ECONOMY OF SCALE.  BURDICK, THE ORIGIN OF THE
PECULIAR DUTIES OF PUBLIC SERVICE COMPANIES, 11 COL.L.REV.  514
(1911).  H. TRACHSEL, PUBLIC UTILITY REGULATION 7 - 8, 52 (1947). 
REGULATION WAS SUPERIMPOSED ON SUCH NATURAL MONOPOLIES AS A SUBSTITUTE
FOR COMPETITION AND NOT TO ELIMINATE IT: 

'THE PRIMARY OBJECT OF THE PUBLIC UTILITY LAW IS NOT TO ESTABLISH
MONOPOLIES OR TO GUARANTEE THE SECURITY OF INVESTMENTS IN PUBLIC
SERVICE CORPORATIONS, BUT TO SERVE THE INTERESTS OF THE PUBLIC." 
HIGHWAY EXPRESS LINES, INC. V. PENNSYLVANIA PUBLIC UTILITY COMM'N, 195
PA.SUPPER.  92, 100, 169 A.2D 798, 802 (1961); CF. POTTSVILLE UNION
TRACTION CO. V. PUBLIC SERVICE COMM'N, 67 PA.SUPPER.  301, 304 (1917). 

/9/  THE ARGUMENT HAS BEEN IMPLIEDLY REJECTED BY THIS COURT ON A
NUMBER OF OCCASIONS.  SEE, E.G., CIVIL RIGHTS CASES, 109 U.S. 3, 8
(1883).  IT IS DIFFICULT TO IMAGINE A REGULATED ACTIVITY MORE ESSENTIAL
OR MORE "CLOTHED WITH THE PUBLIC INTEREST"  THAN THE MAINTENANCE OF
SCHOOLS, YET WE STATED IN EVANS V. NEWTON, 382 U.S. 296, 300 (1966): 

"THE RANGE OF GOVERNMENTAL ACTIVITIES IS BROAD AND VARIED, AND THE
FACT THAT GOVERNMENT HAS ENGAGED IN A PARTICULAR ACTIVITY DOES NOT
NECESSARILY MEAN THAT AN INDIVIDUAL ENTREPRENEUR OR MANAGER OF THE SAME
KIND OF UNDERTAKING SUFFERS THE SAME CONSTITUTIONAL INHIBITIONS.  WHILE
A STATE MAY NOT SEGREGATE PUBLIC SCHOOLS SO AS TO EXCLUDE ONE OR MORE
RELIGIOUS GROUPS, THOSE SECTS MAY MAINTAIN THEIR OWN PAROCHIAL
EDUCATIONAL SYSTEMS." 

/10/  SEE N. 1, SUPRA.  THE SAME PROVISION APPEARED IN ALL OF
METROPOLITAN'S PRIOR GENERAL TARIFFS.  THE SOLE REASON FOR SUBSTITUTING
THE NEW GENERAL TARIFF, WHICH CONTAINS ALL THE TERMS AND CONDITIONS OF
METROPOLITAN'S SERVICE, WAS TO PROCURE A RATE INCREASE.  THIS WAS THE
SOLE CHANGE BETWEEN METROPOLITAN'S ELECTRICAL TARIFF NO. 41 AND ITS
PREDECESSOR. 

/11/  PETITIONER DOES NOT CONTEST THE FACT THAT METROPOLITAN HAD
THIS RIGHT, BEFORE THE ADVENT OF REGULATION, AT COMMON LAW.  BRIEF FOR
PETITIONER 31. 

/12/  PETITIONER CONCEDES THAT THE HEARING WAS SOLELY DEVOTED TO THE
QUESTION OF THE PROPOSED RATE INCREASE.  ID., AT 30. 

/13/  SEE PA. STAT. ANN., TIT. 66, 1148 (1959); PA. P.U.C. TARIFF
REGULATIONS, II, "PUBLIC NOTICE OF TARIFF CHANGES."  THESE PROVISIONS
PROVIDE THAT UTILITY COMPANIES MUST GIVE 60 DAYS' NOTICE TO THE PUBLIC
BEFORE CHANGING THEIR RULES FILED IN THEIR GENERAL TARIFF.  SINCE PA.
STAT. ANN., TIT. 66, 1171 (1959), PROVIDES THAT "(SUBJECT TO . . . THE
REGULATIONS OR ORDERS OF THE COMMISSION, EVERY PUBLIC UTILITY MAY HAVE
REASONABLE RULES AND REGULATIONS GOVERNING THE CONDITIONS UNDER WHICH
IT SHALL BE REQUIRED TO RENDER SERVICE," THE COMMISSION ARGUABLY HAD
THE POWER TO DISAPPROVE UTILITY RULES.  THERE IS NO EVIDENCE THAT IT
HAS EVER EVEN CONSIDERED THE PROVISION IN QUESTION.  WHEN THE 60-DAY
NOTICE PERIOD PASSED, THE PROVISIONS BECAME EFFECTIVE. 

/14/  PA. P.U.C. TARIFF REGULATION VIII, "DISCOUNT FOR PROMPT
PAYMENT AND PENALTIES FOR DELAYED PAYMENT OF BILLS," IS THE ONLY
AUTHORITY CITED FOR A STATE-IMPOSED REQUIREMENT THAT METROPOLITAN FILE
ITS TERMINATION PROVISION AS PART OF ITS GENERAL TARIFF.  THIS SECTION
REQUIRES THE FILING OF "PENALTIES" IMPOSED UPON CUSTOMERS FOR FAILURES
TO PAY BILLS PROMPTLY.  RESPONDENTS ARGUES THAT THIS APPLIES ONLY TO
MONETARY PENALTIES.  THESE IS NO PENNSYLVANIA CASE LAW ON THE
QUESTION. 

/15/  "THE ONLY APPARENT STATE INVOLVEMENT WITH THE ACITIVITY
COMPLAINED OF HERE IS IN TARIFF REG. VIII OF THE PENNSYLVANIA P.U.C. .
. . (THE PURPOSE OF TARIFF REG. VIII IS TO INSURE THAT PUBLIC UTILITIES
INFORM THEIR PATRONS OF ANY POSSIBLE PENALTY FOR FAILING TO PAY THEIR
BILLS.  AS IN KADLEC, DEFENDANT HERE ACTED PURSUANT TO ITS OWN
REGULATIONS AND OUT OF A PURELY PRIVATE, ECONOMIC MOTIVE.  NO STATE
OFFICIAL PARTICIPATED IN THE PRACTICE COMPLAINED OF, NOR IS IT ALLEGED
THAT THE STATE REQUESTED OR CO-OPERATED IN THE SUSPENSION OF SERVICE." 
348 F.SUPP.,AT 958. 

/16/  SEE PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451, 462
(1952).  AT ONE POINT THE COURT STATES: 

"WE FIND IN THE REASONING OF THE COURT BELOW A SUFFICIENTLY CLOSE
RELATION BETWEEN THE FEDERAL GOVERNMENT AND THE RADIO SERVICE TO MAKE
IT NECESSARY FOR US TO CONSIDER THOSE AMENDMENTS."  IBID. 

LATER, THE OPINION STATES: 

"WE, THEREFORE, FIND IT APPROPRIATE TO EXAMINE INTO WHAT
RESTRICTION, IF ANY, THE FIRST AND FIFTH AMENDMENTS PLACE UPON THE
FEDERAL GOVERNMENT . . . ASSUMING THAT THE ACTION OF CAPITAL TRANSIT .
. . AMOUNTS TO SUFFICIENT FEDERAL GOVERNMENT ACTION TO MAKE THE FIRST
AND FIFTH AMENDMENTS APPLICABLE THERETO."  ID., AT 462 - 463. 
(EMPHASIS ADDED.) 

THE COURT THEN WENT ON TO FIND NO CONSTITUTIONAL VIOLATION IN THE
CHAALLENGED ACTION. 

/17/  AS IN MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163, 173 (1972),
THERE IS NO SUGGESTION IN THIS RECORD THAT THE PENNSYLVANIA PUBLIC
UTILITY COMMISSION INTENDED EITHER OVERTLY OR COVERTLY TO ENCOURAGE THE
PRACTICE.  SEE N. 15, SUPRA.     MR. JUSTICE DOUGLAS, DISSENTING. 

I REACH THE OPPOSITE CONCLUSION FROM THAT REACHED BY THE MAJORITY ON
THE STATE-ACTION ISSUE. 

THE INJURY ALLEGED TOOK PLACE WHEN RESPONDENT DISCONTINUED ITS
SERVICE TO THIS HOUSEHOLDER WITHOUT NOTICE OR OPPORTUNITY TO REMEDY OR
CONTESTS HER ALLEGED DEFAULT, EVEN THOUGH ITS TARIFF PROVIDED THAT
RESPONDENT MIGHT "DISCONTINUE ITS SERVICE ON REASONABLE NOTICE."  /1/
MAY A STATE ALLOW A UTILITY--WHICH IN THIS CASE HAS NO COMPETITOR--TO
EXPLOIT ITS MONOPOLY IN VIOLATION OF ITS OWN TARIFF?  MAY A UTILITY
HAVE COMPLETE I MUNITY UNDER FEDERAL LAW WHEN THE STATE ALLOWS ITS
REGULATORY AGENCY TO BECOME THE PRISONER OF THE UTILITY OR, BY A
LISTLESS ATTITUDE OF NO CONCERN, TO PERMIT THE UTILITY TO USE ITS
MONOPOLY POWER IN A LAWLESS WAY? 

IN BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715 (1961), WE
SAID:  "ONLY BY SIFTING FACTS AND WEIGHING CIRCUMSTANCES CAN THE
NONOBVIOUS INVOLVEMENT OF THE STATE IN PRIVATE CONDUCT BE ATTRIBUTED
ITS TRUE SIGNIFICANCE."  ID., AT 722.  A PARTICULARIZED INQUIRY INTO
THE CIRCUMSTANCES OF EACH CASE IS NECESSARY IN ORDER TO DETERMINE
WHETHER A GIVEN FACTUAL SITUATION FALLS WITHIN "THE VARIETY OF
INDIVIDUAL-STATE RELATIONSHIPS WHICH THE (FOURTEENTH) AMENDMENT WAS
DESIGNED TO EMBRACE."  IBID.  AS OUR SUBSEQUENT DISCUSSION IN BURTON
MADE CLEAR, THE DISPOSITIVE QUESTION IN ANY STATE-ACTION CASE IS NOT
WHETHER ANY SINGLE FACT OR RELATIONSHIP PRESENTS A SUFFICIENT DEGREE OF
STATE INVOLVEMENT, BUT RATHER WHETHER THE AGGREGATE OF ALL RELEVANT
FACTORS COMPELS A FINDING OF STATE RESPONSIBILITY.  /2/  ID., AT 722 -
726.  SEE GENERALLY MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163 (1972). 

IT IS NOT ENOUGH TO EXAMINE SERIATIM EACH OF THE FACTORS UPON WHICH
A CLAIMANT RELIES AND TO DISMISS EACH INDIVIDUALLY AS BEING
INSUFFICIENT TO SUPPORT A FINDING OF STATE ACTION.  IT IS THE AGGREGATE
THAT IS CONTROLLING. 

IT IS SAID THAT THE MERE FACT OF RESPONDENT'S MONOPOLY STATUS,
ASSUMING ARGUENDO THAT THAT STATUS IS STATE CONFERRED OR STATE
PROTECTED, /3/  "IS NOT DETERMINATIVE IN CONSIDERING WHETHER
METROPOLITAN'S TERMINATION OF SERVICE TO PETITIONER WAS 'STATE ACTION'
FOR PURPOSES OF THE FOURTEENTH AMENDMENT."  ANTE, AT 351 - 352.  EVEN
SO, A STATE-PROTECTED MONOPOLY STATUS IS HIGHLY RELEVANT IN ASSESSING
THE AGGREGATE WEIGHT OF A PRIVATE ENTITY'S TIES TO THE STATE.  /4/ 

IT IS SAID THAT THE FACT THAT RESPONDENT'S SERVICE ARE "AFFECTED
WITH A PUBLIC INTEREST" IS NOT DETERMINATIVE.  I AGREE THAT DOCTORS,
LAWYERS, AND GROCERS ARE NOT TRANSFORMED INTO STATE ACTORS SIMPLY
BECAUSE THEY PROVIDE ARGUABLY ESSENTIAL GOODS AND SERVICES AND ARE
REGULATED BY THE STATE.  IN THE PRESENT CASE, HOWEVER, RESPONDENT IS
NOT JUST ONE PERSON AMONG MANY; IT IS THE ONLY PUBLIC UTILITY
FURNISHING ELECTRIC POWER TO THE TOWN.  WHEN POWER IS DENIED A
HOUSEHOLDER, THE HOME, UNDER MODERN CONDITIONS, IS LIKELY TO BECOME
UNLIVABLE. 

RESPONDENT'S PROCEDURES FOR TERMINATION OF SERVICE MAY NEVER HAVE
BEEN SUBJECTED TO THE SAME DEGREE OF STATE SCRUTINY AND APPROVAL,
WHETHER EXPLICIT OR IMPLICIT, THAT WAS PRESENT IN PUBLIC UTILITIES
COMM'N V. POLLAK, 343 U.S. 451 (1952).  YET IN THE PRESENT CASE THE
STATE IS HEAVILY INVOLVED IN RESPONDENT'S TERMINATION PROCEDURES,
GETTING INTO THE APPROVED TARIFF A REQUIREMENT OF "REASONABLE NOTICE." 
PENNSYLVANIA HAS UNDERTAKEN TO REGULATE NUMEROUS ASPECTS OF
RESPONDENT'S OPERATIONS IN SOME DETAIL, /5/  AND A "HANDS-OFF" ATTITUDE
OF PERMISSIVENESS OR NEUTRALITY TOWARD THE OPERATIONS IN THIS CASE IS
AT WAR WITH THE STATE AGENCY'S FUNCTIONS OF SUPERVISION OVER
RESPONDENT'S CONDUCT IN THE AREA OF SERVICING HOUSEHOLDERS,
PARTICULARLY WHERE (AS HERE) THE STATE WOULD PRESUMABLY LEND ITS WEIGHT
AND AUTHORITY TO FACILITATE THE ENFORCEMENT OF RESPONDENT'S PUBLISHED
PROCEDURES.  CF. ADICKES V. S. H. KRESS & CO., 398 U.S. 144 (1970);
REITMAN V. MULKEY, 387 U.S. 369 (1967); RAILWAY EMPLOYES' DEPT. V.
HANSON, 351 U.S. 225 (1956); EY V. SHELLEKRAEMER, 334 U.S. 1 (1948). 

IN THE AGGREGATE, THESE FACTORS DEPICT A MONOPOLIST PROVIDING
ESSENTIAL PUBLIC SERVICES AS A LICENSES OF THE STATE AND WITHIN A
FRAMEWORK OF EXTENSIVE STATE SUPERVISION AND CONTROL.  THE PARTICULAR
REGULATIONS AT ISSUE, PROMULGATED BY THE MONOPOLIST, WERE AUTHORIZED BY
STATE LAW AND WERE MADE ENFORCEABLE BY THE WEIGHT AND AUTHORITY OF THE
STATE.  MOREOVER, THE STATE RETAINS THE POWER OF OVERSIGHT TO REVIEW
AND AMEND THE REGULATIONS IF THE PUBLIC INTEREST SO REQUIRES. 
RESPONDENT'S ACTIONS ARE SUFFICIENTLY INTERTWINED WITH THOSE OF THE
STATE, AND ITS TERMINATION-OF-SERVICE PROVISIONS ARE SUFFICIENTLY
BUTTRESSED BY STATE LAW, TO WARRANT A HOLDING THAT RESPONDENT'S ACTIONS
IN TERMINATING THIS HOUSEHOLDER'S SERVICE WERE "STATE ACTION" FOR THE
PURPOSE OF GIVING FEDERAL JURISDICTION OVER RESPONDENT UNDER 42 U.S.C.
1983.  THOUGH THE COURT PAYS LIP SERVICE TO THE NEED FOR ASSESSING THE
TOTALITY OF THE STATE'S INVOLVEMENT IN THIS ENTERPRISE, ANTE, AT 358,
ITS UNDERLYING ANALYSIS IS FUNDAMENTALLY SEQUENTIAL RATHER THAN
CUMULATIVE.  IN THAT PERSPECTIVE, WHAT THE COURT DOES TODAY IS TO MAKE
A SIGNIFICANT DEPARTURE FROM OUR PREVIOUS TREATMENT OF STATE-ACTION
ISSUES. 

MR. JUSTICE BRANDEIS IN LIGGETT CO. V. LEE, 288 U.S. 517 (1933), IN
SPEAKING OF THE COMPETITION AMOUNG THE STATES TO EASE THE OPPORTUNITIES
AND METHODS OF INCORPORATION, SAID:  "THE RACE WAS ONE NOT OF DILIGENCE
BUT OF LAXITY."  ID., AT 559 (DISSENTING OPINION).  ONE HAS ONLY TO
PERSUE THE 84-PART UTILITY CORPORATIONS REPORT BY THE FEDERAL TRADE
COMMISSION (UNDER THE DIRECTION OF ITS ABLE COUNSEL THE LATE ROBERT E.
HEALY) TO REALIZE THAT STATE REGULATION OF UTILITIES HAS LARGELY MADE
STATE COMMISSIONS PRISONERS OF THE UTILITIES.  SEE ESPECIALLY S. DOC.
NO. 92, 70TH CONG., 1ST SESS., PT. 73 - A (1936); AND SEE ID., PT. 72 -
A, P. 880.  IN THIS CONNECTION IT SHOULD BE NOTED THAT SUCCESSFUL
ATTEMPTS BY PUBLIC UTILITIES TO EXCLUDE THEMSELVES FROM THE ANTITRUST
LAWS HAVE BEEN BASED ON THE ASSERTION THAT THEIR MONOPOLY ACTIVITY
CONSTITUTES "STATE ACTION."  SEE WASHINGTON GAS LIGHT CO. V. VIRGINIA
ELECTRIC & POWER CO., 438 F.2D 248, 250 - 252 (CA4 1971); GAS LIGHT CO.
OF COLUMBIA V. GEORGIA POWER CO., 440 F.2D 1135, 1138 - 1140 (CA5
1971). 

BY LIKE TAKEN THE TARIFF PRESCRIBING TERMINATION-OF-SERVICE
PROCEDURES WAS POSSIBLE ONLY BECAUSE OF "STATE ACTION."  AND IT WOULD
BE COMPATIBLE ONLY WITH ADMINISTRATIVE ABDICATION OF AUTHORITY TO
EQUATE "ADMINISTRATIVE SILENCE WITH ABANDONMENT OF ADMINISTRATIVE
DUTY."  WASHINGTON GAS LIGHT CO. V. VIRGINIA ELECTRIC & POWER CO.,
SUPRA, AT 252. 

CIVIL RIGHTS COMPLAINTS WHEREVER, BY DIRECT OR INDIRECT ACTIONS, A
STATE, ACTING "IN CAHOOTS" WITH A PRIVATE GROUP OR THROUGH NEGLECT OR
LISTLESS OVERSIGHT, ALLOWS A PRIVATE GROUP TO PERPETRATE AN INJURY. 
THE THEORY IS THAT IN THOSE COZY SITUATIONS, LOCAL POLITICS AND THE
PRESSURE OF ECONOMIC OVERLORDS ON SUBSERVIENT STATE AGENCIES MAKE
RECOVERY IN STATE COURTS UNLIKELY.  I REALIZE WE ARE IN AN AREA WHERE
WE WITNESS A GREAT RETREAT FROM THE EXERCISE OF FEDERAL JURISDICTION
WHICH THE CONGRESS HAS CONFERRED ON FEDERAL COURTS.  THE SENTIMENT HERE
IS THAT STATE COURTS ARE AS HOSPITABLE AS FEDERAL COURTS TO FEDERAL
CLAIMS.  THAT MAY WELL BE TRUE, IN SOME INSTANCES.  BUT IT IS FOR THE
SENATE AND THE HOUSE TO MAKE THAT DECISION.  WE SHOULD NOT TOLERATE AN
EROSION OF THE POLICY CONGRESS EXPRESSED IN DRAFTING 1983. 

OF ANY STATUTE, ORDINANCE, (OR) REGULATION . . . OF ANY STATE.  . . ." 
THE REGULATORY REGIME IMPOSED BY PENNSYLVANIA ON RESPONDENT UTILITY
SEEMS TO FIT THIS STATUTE LIKE A GLOVE.  ELECTRICAL SERVICE, BEING A
NECESSITY OF LIFE UNDER THE CIRCUMSTANCES OF THIS CASE, IS AN
ENTITLEMENT WHICH UNDER OUR DECISIONS MAY NOT BE TAKEN WITHOUT THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS.  FUENTES V. SHEVIN, 407 U.S.
67, 80 (1972); GOLDBERG V. KELLY, 397 U.S. 254 (1970); PALMER V.
COLUMBIA GAS OF OHIO, INC., 479 F.2D 153 (CA6 1973). 

/1/  RULE 15 OF THE TARIFF PROVIDES IN PART: 

"COMPANY RESERVES THE RIGHT TO DISCONTINUE ITS SERVICE ON REASONABLE
NOTICE AND TO REMOVE ITS EQUIPMENT IN CASE OF NONPAYMENT OF BILL OR
VIOLATION OF THE PENNSYLVANIA PUBLIC UTILITY COMMISSION'S OR COMPANY'S
RULES AND REGULATIONS; OR, WITHOUT NOTICE, FOR ABUSE, FRAUD, OR
TAMPERING WITH THE CONNECTIONS, METERS OR OTHER EQUIPMENT OF COMPANY. 
FAILURE BY COMPANY TO EXERCISE THIS RIGHT SHALL NOT BE DEEMED A WAIVER
THEREOF." 

/2/  THE COURT BELOW IN BURTON HAD RELIED HEAVILY ON A NUMBER OF
FACTS INDICATING MINIMAL STATE INVOLVEMENT, BUT WE REGARDED THAT
COURT'S ANALYSIS AS UNDULY RESTRICTED IN ITS SCOPE:  "WHILE THESE
FACTUAL CONSIDERATIONS ARE INDEED VALIDLY ACCOUNTABLE ASPECTS OF THE
ENTERPRISE UPON WHICH THE STATE HAS EMBARKED, WE CANNOT SAY THAT THEY
LEAD INESCAPABLY TO THE CONCLUSION THAT STATE ACTION IS NOT PRESENT. 
THEIR PERSUASIVENESS IS DIMINISHED WHEN EVALUATED IN THE CONTEXT OF
OTHER FACTORS WHICH MUST BE ACKNOWLEDGED."  365 U.S.,AT 723. 

AFTER DISCUSSING THOSE ADDITIONAL FACTORS IN GREATER DETAIL, WE
CONCLUDED:  "ADDITION OF ALL THESE ACTIVITIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE AUTHORITY, THE BENEFITS MUTUALLY CONFERRED,
TOGETHER WITH THE OBVIOUS FACT THAT THE RESTAURANT IS OPERATED AS AN
INTEGRAL PART OF A PUBLIC BUILDING DEVOTED TO A PUBLIC PARKING SERVICE,
INDICATES THAT DEGREE OF STATE PARTICIPATION AND INVOLVEMENT IN
DISCRIMINATORY ACTION WHICH IT WAS THE DESIGN OF THE FOURTEENTH
AMENDMENT TO CONDEMN."  ID., AT 724. 

/3/  IT SEEMS IRRELEVANT THAT METROPOLITAN WAS ORGANIZED PRIOR TO
THE INAUGURATION OF UTILITY REGULATION IN PENNSYLVANIA, AND THAT A
UTILITY OF THIS SORT IS, FOR ALL PRACTICAL PURPOSES, A NATURAL
MONOPOLY.  WHATEVER ITS ORIGINS, THE EXISTING SITUATION PRESENTS A
MONOPOLY ENTERPRISE SUBJECT TO DETAILED STATE REGULATION; THE NATURE
AND EXTENT OF THAT REGULATION TAKE ON PARTICULAR SIGNIFICANCE IN LIGHT
OF THE LACK OF ANY ALTERNATIVE SOURCE OF SERVICE AVAILABLE TO
METROPOLITAN'S CUSTOMERS. 

/4/  OUR DISCLAIMER OF RELIANCE UPON THIS FACTOR IN PUBLIC UTILITIES
COMM'N V. POLLAK, 343 U.S. 451, 462 (1952), SHOULD NOT BE READ AS
HOLDING THAT MONOPOLY STATUS IS WHOLLY IRRELEVANT; THE "DISCLAIMER" ON
ITS FACR SIMPLY STATES THAT MONOPOLY STATUS WAS NOT USED AS AN
INGREDIENT OF THE FINDING OF FEDERAL GOVERNMENTAL INVOLVEMENT IN THAT
CASE. 

/5/  THE PUBLIC UTILITY COMMISSION IS GIVEN EXTENSIVE CONTROL OVER
UTILITY RATES, PA. STAT. ANN., TIT. 66, 1141 ET SEQ. (1959 AND SUPP.
1974 - 1975), AND OVER THE CHARACTER AND QUALITY OF UTILITY SERVICES
AND FACILITIES, 1171, 1182 - 1183; IT IS GIVEN BROAD POWER TO RECEIVE
AND INVESTIGATE COMPLAINTS, 1391, 1398, AND TO REGULATE AND SUPERVISE
THE ACTIVITIES, RULES, AND CONTRACTUAL UNDERTAKINGS OF UTILITIES, 1171,
1341 - 1343, 1360. 

/6/  THERE IS NO REQUIREMENT FOR AN EXHAUSTION OF STATE REMEDIES
BEFORE SUING UNDER 1983 (SEE WILWORDING V. SWENSON, 404 U.S. 249
(1971)), THOUGH SUGGESTIONS FOR STATUTORY CHANGES IN THAT REGARD HAVE
BEEN MADE.  JUDD, THE EXPANDING JURISDICTION OF THE FEDERAL COURTS, 60
A.B.A.J. 938, 941 (1974). 

MR. JUSTICE BRENNAN, DISSENTING. 

I DO NOT THINK THAT A CONTROVERSY EXISTED BETWEEN PETITIONER AND
RESPONDENT ENTITLING PETITIONER TO BE HEARD IN THIS ACTION.  UNDER
PENNSYLVANIA LAW RESPONDENT'S DUTY UNDER PA. STAT. ANN., TIT. 66, 1171
(1959), TO PROVIDE SERVICE WAS LIMITED BY 25 OF THE GENERAL RULES AND
REGULATIONS, THE ELECTRIC SERVICE TARIFF, ON FILE WITH THE PENNSYLVANIA
PUBLIC UTILITY COMMISSION, TO PROVISION OF SUCH SERVICE ONLY TO
"CUSTOMERS," DEFINED AS "(ANY PERSONS) . . . LAWFULLY RECEIVING SERVICE
FROM (THE) COMPANY."  PETITIONER, AS THE COURT NOTES, CEASED BEING A
"CUSTOMER" IN SEPTEMBER 1970 WHEN HER ACCOUNT WAS TERMINATED FOR
NONPAYMENT OF BILLS.  THAT TERMINATION WAS PURSUANT TO RULE 15 OF THE
TARIFF QUOTED BY THE COURT IN N. 1.  FROM SEPTEMBER 1970 TO SEPTEMBER
1971, RESPONDENT'S "CUSTOMER" WAS JAMES DODSON; AND HIS DELINQUENCY IN
PAYMENT FOR SERVICE DURING THAT PERIOD, NOT PETITIONER'S DELINQUENCY
BEFORE SEPTEMBER 1970, WAS THE OCCASION FOR THE TERMINATION OF SERVICE
ON OCTOBER 11, 1971.  AN EFFORT BY PETITIONER AT THAT TIME TO HAVE
SERVICE CONTINUED IF SHE PAID $30 ON ACCOUNT ON HER DELINQUENT 1970
BILL FAILED WHEN RESPONDENT REJECTED THE OFFER AND SHUT OFF THE
SERVICE.  IN THESE CIRCUMSTANCES PETITIONER HAD NO BASIS IN MY VIEW FOR
THE CLAIMED ENTITLEMENT UNDER 1171 QUOTED BY THE COURT IN N. 2, AND
THEREFORE NO CONTROVERSY EXISTED BETWEEN PETITIONER AND RESPONDENT
WHICH COULD BE THE SUBJECT OF HER ACTION.  I WOULD THEREFORE INTIMATE
NO VIEW UPON THE CORRECTNESS OF THE HOLDINGS BELOW WHETHER THE
TERMINATION OF SERVICE ON OCTOBER 11, 1971, CONSTITUTED STATE ACTION
BUT WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS WITH DIRECTION
THAT THE CASE BE REMANDED TO THE DISTRICT COURT WITH INSTRUCTION TO
ENTER A NEW JUDGMENT DISMISSING THE COMPLAINT.  SEE GOLDEN V. ZWICKLER,
394 U.S. 103, 109 - 110 (1969). 

MR. JUSTICE MARSHALL, DISSENTING. 

I AGREE WITH MY BROTHER BRENNAN THAT THIS CASE IS A VERY POOR
VEHICLE FOR RESOLVING THE DIFFICULT AND IMPORTANT QUESTIONS PRESENTED
TODAY.  THE CONFUSING SEQUENCE OF EVENTS LEADING TO THE CHALLENGED
TERMINATION MAKES IT UNCLEAR WHETHER PETITIONER HAS A PROPERTY RIGHT
UNDER STATE LAW TO THE SERVICE SHE WAS RECEIVING FROM THE RESPONDENT
COMPANY.  BECAUSE THESE COMPLEXITIES WOULD SERIOUSLY HAMPER RESOLUTION
OF THE MERITS OF THE CASE, I WOULD DISMISS THE WRIT AS IMPROVIDENTLY
GRANTED.  SINCE THE COURT HAS DISPOSED OF THE CASE BY FINDING NO STATE
ACTION, HOWEVER, I THINK IT APPROPRIATE TO REGISTER MY DISSENT ON THAT
POINT.              I 

THE METROPOLITAN EDISON COMPANY PROVIDES AN ESSENTIAL PUBLIC SERVICE
TO THE PEOPLE OF YORK, PA.  IT IS THE ONLY ENTITY, PUBLIC OR PRIVATE,
THAT IS AUTHORIZED TO SUPPLY ELECTRIC SERVICE TO MOST OF THE
COMMUNITY.  AS A PART OF ITS CHARTER TO THE COMPANY, THE STATE IMPOSES
EXTENSIVE REGULATIONS, AND IT COOPERATES WITH THE COMPANY IN MYRIAD
WAYS.  ADDITIONALLY, THE STATE HAS GRANTED ITS APPROVAL TO THE
COMPANY'S MODE OF SERVICE TERMINATION--THE VERY CONDUCT THAT IS
CHALLENGED HERE.  TAKING THESE FACTORS TOGETHER, I HAVE NO DIFFICULTY
FINDING STATE ACTION IN THIS CASE.  AS THE COURT CONCLUDED IN BURTON V.
WILMINGTON PARKING AUTHORITY, 365 U.S. 715, 725 (1961), THE STATE HAS
SUFFICIENTLY "INSINUATED ITSELF INTO A POSITION OF INTERDEPENDENCE WITH
(THE COMPANY) THAT IT MUST BE RECOGNIZED AS A JOINT PARTICIPANT IN THE
CHALLENGED ACITIVITY." 

OUR STATE-ACTION CASES HAVE REPEATEDLY RELIED ON SEVERAL FACTORS
CLEARLY PRESENTED BY THIS CASE:  A STATE-SANCTIONED MONOPOLY; AN
EXTENSIVE PATTERN OF COOPERATION BETWEEN THE "PRIVATE" ENTITY AND THE
STATE; AND A SERVICE UNIQUELY PUBLIC IN NATURE.  TODAY THE COURT TAKES
A MAJOR STEP IN REPUDIATING THIS LINE OF AUTHORITY AND ADOPTS A STANCE
THAT IS BOUND TO LEAD TO MISCHIEF WHEN APPLIED TO PROBLEMS BEYOND THE
NARROW SPHERE OF DUE PROCESS OBJECTIONS TO UTILITY TERMINATIONS. 

        A 

WHEN THE STATE CONFERS A MONOPOLY ON A GROUP OR ORGANIZATION, THIS
COURT HAS HELD THAT THE ORGANIZATION ASSUMES MANY OF THE OBLIGATIONS OF
THE STATE.  RAILWAY EMPLOYES'  DEPT. V. HANSON, 351 U.S. 225 (1956). 
EVEN WHEN THE COURT HAS NOT FOUND STATE ACTION BASED SOLELY ON THE
STATE'S CONFERRAL OF A MONOPOLY, IT HAS SUGGESTED THAT THE MONOPOLY
FACTOR WEIGHS HEAVILY IN DETERMINING WHETHER CONSTITUTIONAL OBLIGATIONS
CAN BE IMPOSED ON FORMALLY PRIVATE ENTITIES.  SEE STEELE V. LOUISVILLE
& NASHVILLE R. CO., 323 U.S. 192 (1944).  INDEED, IN MOOSE LODGE NO.
107 V. IRVIS, 407 U.S. 163, 177 (1972), THE COURT WAS CAREFUL TO POINT
OUT THAT THE PENNSYLVANIA LIQUOR LICENSING SCHEME "FALLS FAR SHORT OF
CONFERRING UPON CLUB LICENSEES A MONOPOLY IN THE DISPENSING OF LIQUOR
IN ANY GIVEN MUNICIPALITY OR IN THE STATE AS A WHOLE." 

THE MAJORITY DISTINGUISHES THIS LINE OF CASES WITH A CRYPTIC
ASSERTION THAT PUBLIC UTILITY COMPANIES ARE "NATURAL MONOPOLIES." 
ANTE, AT 351 - 352, N. 8.  THE THEORY BEHIND THE DISTINCTION APPEARS TO
BE THAT SINCE THE STATE'S PURPOSE IN REGULATING A NATURAL MONOPOLY IS
NOT TO AID THE COMPANY BUT TO PREVENT ITS CHARGING MONOPOLY PRICES, THE
STATE'S INVOLVEMENT IS SOMEHOW LESS SIGNIFICANT FOR STATE-ACTION
PURPOSES.  I CANNOT AGREE THAT SO MUCH SHOULD TURN ON SO NARROW A
DISTINCTION.  INITIALLY, IT IS FAR FROM OBVIOUS THAT AN ELECTRIC
COMPANY WOULD NOT BE SUBJECT TO COMPETITION IF THE MARKET WERE
UNIMPEDED BY GOVERNMENTAL RESTRICTIONS.  CERTAINLY THE "START-UP" COSTS
OF INITIATING ELECTRIC SERVICE ARE SUBSTANTIAL, BUT THE REWARDS
AVAILABLE IN A RELATIVELY INELASTIC MARKET MIGHT WELL BE SUFFICIENT
UNDER THE RIGHT CIRCUMSTANCES TO ATTRACT COMPETITIVE INVESTMENT. 
INSTEAD, THE STATE HAS CHOSEN TO FORBID THE HIGH PROFIT MARGINS THAT
MIGHT INVITE PRIVATE COMPETITION OR INCREASE PRESSURE FOR STATE
OWNERSHIP AND OPERATION OF ELECTRIC POWER FACILITIES. 

THE DIFFICULTY INHERENT IN THIS KIND OF ECONOMIC ANALYSIS COUNSELS
AGAINST EXCUSING NATURAL MONOPOLIES FROM THE REACH OF STATE-ACTION
PRINCIPLES.  TO INVITE INQUIRY INTO WHETHER A PARTICULAR STATE
SANCTIONED MONOPOLY MIGHT HAVE SURVIVED WITHOUT THE STATE'S EXPRESS
APPROVAL GROUNDS THE ANALYSIS IN HOPELESS SPECULATION.  WORSE, THIS
APPROACH IGNORES IMPORTANT IMPLICATIONS OF THE STATE'S POLICY OF
UTILIZING PRIVATE MONOPOLIES TO PROVIDE ELECTRIC SERVICE.  ENCOMPASSED
WITHIN THIS POLICY IS THE STATE'S DETERMINATION NOT TO PERMIT
GOVERNMENTAL COMPETITION WITH THE SELECTED PRIVATE COMPANY, BUT TO
COOPERATE WITH AND REGULATE THE COMPANY IN A MULTITUDE OF WAYS TO
ENSURE THAT THE COMPANY'S SERVICE WILL BE THE FUNCTIONAL EQUIVALENT OF
SERVICE PROVIDED BY THE STATE.  /1/

     B 

THE PATTERN OF COOPERATION BETWEEN METROPOLITAN EDISON AND THE STATE
HAS LED TO SIGIFICANT STATE INVOLVEMENT IN VIRTUALLY EVERY PHASE OF THE
COMPANY'S BUSINESS.  THE MAJORITY, HOWEVER, ACCEPTS THE RELEVANCE OF
THE STATE'S REGULATORY SCHEME ONLY TO THE EXTENT THAT IT DEMONSTRATES
STATE SUPPORT FOR THE CHALLENGED TERMINATION PROCEDURE.  MOREOVER,
AFTER CONCLUDING THAT THE STATE IN THIS CASE HAD NOT APPROVED THE
COMPANY'S TERMINATION PROCEDURES, THE MAJORITY SUGGESTS THAT EVEN STATE
AUTHORIZATION AND APPROVAL WOULD NOT BE SUFFICIENT:  THE STATE WOULD
APPARENTLY HAVE TO ORDER THE TERMINATION PRACTICE IN QUESTION TO
SATISFY THE MAJORITY'S STATE-ACTION TEST, SEE ANTE, AT 357. 

I DISAGREE WITH THE MAJORITY'S POSITION ON THREE SEPARATE GROUNDS. 
FIRST, THE SUGGESTION THAT THE STATE WOULD HAVE TO "PUT ITS OWN WEIGHT
ON THE SIDE OF THE PROPOSED PRACTICE BY ORDERING IT" SEEMS TO ME TO
MARK A SHARP DEPARTURE FROM OUR PREVIOUS STATE-ACTION CASES.  FROM E
CIVIL RIGHTS CASES, 109 U.S. 3 (1883), TO MOOSE LODGE, SUPRA, WE HAVE
CONSISTENTLY INDICATED THAT STATE AUTHORIZATION AND APPROVAL OF
"PRIVATE" CONDUCT WOULD SUPPORT A FINDING OF STATE ACTION.  /2/ 

SECOND, I QUESTION THE WISDOM OF GIVING SUCH SHORT SHRIFT TO THE
EXTENSIVE INTERACTION BETWEEN THE COMPANY AND THE STATE, AND FOCUSING
SOLELY ON THE EXTENT OF STATE SUPPORT FOR THE PARTICULAR ACTIVITY UNDER
CHALLENGE.  IN CASES WHERE THE STATE'S ONLY SIGNIFICANT INVOLVEMENT IS
THROUGH FINANCIAL SUPPORT OR LIMITED REGULATION OF THE PRIVATE ENTITY,
IT MAY BE WELL TO INQUIRE WHETHER THE STATE'S INVOLVEMENT SUGGESTS
STATE APPROVAL OF THE OBJECTIONABLE CONDUCT.  SEE POWE V. MILES, 407
F.2D 73, 81 (CA2 1968); GROSSNER V. TRUSTEES OF COLUMBIA UNIVERSITY,
287 F.SUPP.  535, 547 - 548 (SDNY 1968).  BUT WHERE THE STATE HAS SO
THOROUGHLY INSINUATED ITSELF INTO THE OPERATIONS OF THE ENTERPRISE, IT
SHOULD NOT BE FATAL IF THE STATE HAS NOT AFFIRMATIVELY SANCTIONED THE
PARTICULAR PRACTICE IN QUESTION. 

FINALLY, IT SEEMS TO ME IN ANY EVENT THAT THE STATE HAS GIVEN ITS
APPROVAL TO METROPOLITAN EDISON'S TERMINATION PROCEDURES.  THE STATE
UTILITY COMMISSION APPROVED A TARIFF PROVISION UNDER WHICH THE COMPANY
RESERVED THE RIGHT TO DISCONTINUE ITS SERVICE ON REASONABLE NOTICE FOR
NONPAYMENT OF BILLS. 

THE MAJORITY ATTEMPTS TO MAKE SOMETHING OF THE FACT THAT THE TARIFF
PROVISION WAS NOT CHALLENGED IN THE MOST RECENT UTILITY COMMISSION
HEARINGS, AND THAT IT HAD APPARENTLY NOT BEEN CHALLENGED BEFORE.  BUT
THE PROVISION HAD BEEN INCLUDED IN A TARIFF REQUIRED TO BE FILED AND
APPROVED BY THE STATE PURSUANT TO STATUTE.  THAT IT WAS NOT SERIOUSLY
QUESTIONED BEFORE APPROVAL DOES NOT MEAN THAT IT WAS NOT APPROVED.  IT
SUGGESTS, INSTEAD, THAT THE COMMISSION WAS SATISFIED TO PERMIT THE
COMPANY TO PROCEED IN THE TERMINATION AREA AS IT HAD DONE IN THE PAST. 
THE MAJORITY'S TEST PUTS POTENTIAL PLAINTIFFS IN A DIFFICULT POSITION:
IF THE COMMISSION APPROVES THE TARIFF WITHOUT ARGUMENT OR A HEARING,
THE STATE HAS NOT SUFFICIENTLY DEMONSTRATED ITS APPROVAL AND SUPPORT
FOR THE COMPANY'S PRACTICES.  IF, ON THE OTHER HAND, THE STATE
CHALLENGES THE TARIFF PROVISION ON THE GROUND, FOR EXAMPLE, THAT THE
"REASONABLE NOTICE" DOES NOT MEET THE STANDARDS OF FAIRNESS THAT IT
EXPECTS OF THE UTILITY, THEN THE STATE HAS NOT PUT ITS WEIGHT BEHIND
THE TERMINATION PROCEDURE EMPLOYED BY THE COMPANY, AND AGAIN THERE IS
NOT STATE ACTION.  APPARENTLY, AUTHORIZATION AND APPROVAL WOULD REQUIRE
THE KIND OF HEARING THAT WAS HELD IN POLLAK, WHERE THE PUBLIC UTILITIES
COMMISSION EXPRESSLY STATED THAT THE BUS COMPANY'S INSTALLATION OF
RADIOS IN BUSES AND STREETCARS WAS NOT INCONSISTENT WITH THE PUBLIC
CONVENIENCE, SAFETY, AND NECESSITY.  I AM AFRAID THAT THE MAJORITY HAS
IN EFFECT RESTRICED POLLAK TO ITS FACTS IF IT HAS NOT DISCARDED IT
ALTOGETHER.  /3/

        C 

THE FACT THAT THE METROPOLITAN EDISON COMPANY SUPPLIES AN ESSENTIAL
PUBLIC SERVICE THAT IS IN MANY COMMUNITIES SUPPLIED BY THE GOVERNMENT
WEIGHS MORE HEAVILY FOR ME THAN FOR THE MAJORITY.  THE COURT CONCEDES
THAT STATE ACTION MIGHT BE PRESENT IF THE ACTIVITY IN QUESTION WERE
"TRADITIONALLY ASSOCIATED WITH SOVEREIGNTY,"  BUT IT THEN UNDERCUTS
THAT POINT BY SUGGESTING THAT A PARTICULAR SERVICE IS NOT A PUBLIC
FUNCTION IF THE STATE IN QUESTION HAS NOT REQUIRED THAT IT BE
GOVERNMENTALLY OPERATED.  THIS READS THE "PUBLIC FUNCTION" ARGUMENT TOO
NARROWLY.  THE WHOLE POINT OF THE "PUBLIC FUNCTION" CASES IS TO LOOK
BEHIND THE STATE'S DECISION TO PROVIDE PUBLIC SERVICES THROUGH PRIVATE
PARTIES.  SEE EVANS V. NEWTON, 382 U.S. 296 (1966); TERRY V. ADAMS, 345
U.S. 461 (1953); MARSH V. ALABAMA, 326 U.S. 501 (1946).  IN MY VIEW,
UTILITY SERVICE IS TRADITIONALLY IDENTIFIED WITH THE STATE THROUGH
UNIVERSAL PUBLIC REGULATION OR OWNERSHIP TO A DEGREE SUFFICIENT TO
RENDER IT A "PUBLIC FUNCTION." 

I AGREE WITH THE MAJORITY THAT IT REQUIRES MORE THAN A FINDING THAT
A PARTICULAR BUSINESS IS "AFFECTED WITH THE PUBLIC INTEREST" BEFORE
CONSTITUTIONAL BURDENS CAN BE IMPOSED ON THAT BUSINESS.  BUT WHEN THE
ACTIVITY IN QUESTION IS OF SUCH PUBLIC IMPORTANCE THAT THE STATE
INVARIABLY EITHER PROVIDES THE SERVICE ITSELF OR PERMITS PRIVATE
COMPANIES TO ACT AS STATE SURROGATES IN PROVIDING IT, MUCH MORE IS
INVOLVED THAN JUST A MATTER OF PUBLIC INTEREST.  IN THOSE CASES, THE
STATE HAS DETERMINED THAT IF PRIVATE COMPANIES WISH TO ENTER THE FIELD,
THEY WILL HAVE TO SURRENDER MANY OF THE PREROGATIVES NORMALLY
ASSOCIATED WITH PRIVATE ENTERPRISE AND BEHAVE IN MANY WAYS LIKE A
GOVERNMENTAL BODY.  AND WHEN THE STATE'S REGULATORY SCHEME HAS GONE
THAT FAR, IT SEEMS ENTIRELY CONSISTENT TO IMPOSE ON THE PUBLIC UTILITY
THE CONSTITUTIONAL BURDENS NORMALLY RESERVED FOR THE STATE. 

PRIVATE PARTIES PERFORMING FUNCTIONS AFFECTING THE PUBLIC INTEREST
CAN OFTEN MAKE A PERSUASIVE CLAIM TO BE FREE OF THE CONSTITUTIONAL
REQUIREMENTS APPLICABLE TO GOVERNMENTAL INSTITUTIONS BECAUSE OF THE
VALUE OF PRESERVING A PRIVATE SECTOR IN WHICH THE OPPORTUNITY FOR
INDIVIDUAL CHOICE IS MAXIMIZED.  SEE EVANS V. NEWTON, SUPRA, AT 298; H.
FRIENDLY, THE DARTMOUTH COLLEGE CASE AND THE PUBLIC-PRIVATE PENUMBRA
(1969).  MAINTAINING THE PRIVATE STATUS OF PAROCHIAL SCHOOLS, CITED BY
THE MAJORITY, ADVANCES JUST THIS VALUE.  IN THE DUE PROCESS AREA, A
SIMILAR VALUE OF DIVERSITY MAY OFTEN BE FURTHERED BY ALLOWING VARIOUS
PRIVATE INSTITUTIONS THE FLEXIBILITY TO SELECT PROCEDURES THAT FIT
THEIR PARTICULAR NEEDS.  SEE WALBA V. NEW YORK UNIVERSITY, 492 F.2D 96,
102 (CA2), CERT. DENIED, POST, P. 874.  BUT IT IS HARD TO IMAGINE ANY
SUCH INTERESTS THAT ARE FURTHERED BY PROTECTING PUBLIC UTILITY
COMPANIES FROM MEETING THE CONSTITUTIONAL STANDARDS THAT WOULD APPLY IF
THE COMPANIES WERE STATE OWNED.  THE VALUES OF PLURALISM AND DIVERSITY
ARE SIMPLY NOT RELEVANT WHEN THE PRIVATE COMPANY IS THE ONLY ELECTRIC
COMPANY IN TOWN. 

        II 

THE MAJORITY'S CONCLUSION THAT THERE IS NO STATE ACTION IN THIS CASE
IS LIKELY GUIDED IN PART BY ITS RELUCTANCE TO IMPOSE ON A UTILITY
COMPANY BURDENS THAT MIGHT ULTIMATELY HURT CONSUMERS MORE THAN THEY
WOULD HELP THEM.  ELABORATE HEARINGS PRIOR TO TERMINATION MIGHT BE
QUITE EXPENSIVE, AND FOR A RESPONSIBLE COMPANY THERE MIGHT BE
RELATIVELY FEW CASES IN WHICH SUCH HEARINGS WOULD DO ANY GOOD.  THE
SOLUTION TO THIS PROBLEM, HOWEVER, IS TO REQUIRE ONLY ABBREVIATED
PRETERMINATION PROCEDURES FOR ALL UTILITY COMPANIES, NOT TO FREE THE
"PRIVATE" COMPANIES TO BEHAVE HOWEVER THEY SEE FIT.  AT LEAST ON
OCCASION, UTILITY COMPANIES HAVE FAILED TO DEMONSTRATE MUCH SENSITIVITY
TO THE EXTREME IMPORTANCE OF THE SERVICE THEY RENDER, AND IN SOME
CITIES, THE PERCENTAGE OF ERROR IN SERVICE TERMINATION IS DISTURBINGLY
HIGH.  SEE PALMER V. COLUMBIA GAS CO. OF OHIO, INC., 342 F.SUPP.  241,
243 (ND OHIO 1972), AFF'D, 479 F.2D 153 (CA6 1973); BRONSON V.
CONSOLIDATED EDISON CO., 350 F.SUPP.  443, 448 (SDNY 1972).  /4/
ACCORDINGLY, I THINK THAT AT THE MINIMUM, DUE PROCESS WOULD REQUIRE
ADVANCE NOTICE OF A PROPOSED TERMINATION WITH A CLEAR INDICATION THAT A
RESPONSIBLE COMPANY OFFICIAL CAN READILY BE CONTACTED TO CONSIDER ANY
CLAIM OF ERROR. 

        III 

WHAT IS PERHAPS MOST TROUBLING ABOUT THE COURT'S OPINION IS THAT IT
WOULD APPEAR TO APPLY TO A BROAD RANGE OF CLAIMED CONSTITUTIONAL
VIOLATIONS BY THE COMPANY.  THE COURT HAS NOT ADOPTED THE NOTION,
ACCEPTED ELSEWHERE, THAT DIFFERENT STANDARDS SHOULD APPLY TO STATE
ACTION ANALYSIS WHEN DIFFERENT CONSTITUTIONAL CLAIMS ARE PRESENTED. 
SEE ADICKES V. S. H. KRESS & CO., 398 U.S. 144, 190 - 191 (1970)
(BRENNAN, J., CONCURRING AND DISSENTING); GRAFTON V. BROOKLYN LAW
SCHOOL, 478 F.2D 1137, 1142 (CA2 1973).  THUS, THE MAJORITY'S ANALYSIS
WOULD SEEMINGLY APPLY AS WELL TO A COMPANY THAT REFUSED TO EXTEND
SERVICE TO NEGROES, WELFARE RECIPIENTS, OR ANY OTHER GROUP THAT THE
COMPANY PREFERRED, FOR ITS OWN REASONS, NOT TO SERVE.  I CANNOT BELIEVE
THAT THIS COURT WOULD HOLD THAT THE STATE'S INVOLVEMENT WITH THE
UTILITY COMPANY WAS NOT SUFFICIENT TO IMPOSE UPON THE COMPANY AN
OBLIGATION TO MEET THE CONSTITUTIONAL MANDATE OF NONDISCRIMINATION. 
YET NOTHING IN THE ANALYSIS OF THE MAJORITY OPINION SUGGESTS
OTHERWISE. 

I DISSENT. 

/1/  THE STATE'S REGULATORY PATTERN MAKES IT AMPLY CLEAR THAT IT
EXPECTS UTILITY COMPANIES TO BEHAVE MORE LIKE GOVERNMENTAL ENTITIES
THAN PRIVATE CORPORATIONS.  THE RATES ARE FIXED BY THE PUBLIC UTILITY
COMMISSION, AS ARE THE STANDARDS OF SERVICE AND THE COMPANY'S SYSTEM OF
ACCOUNTING.  PA. STAT. ANN., TIT. 66, 1141, 1149, 1171, 1182, 1183,
1211 (1959).  THE CHARACTER OF THE FACILITIES IS SUBJECT TO STATE
APPROVAL AND CONTINUING SUPERVISION, AND THE STATE ALSO REQUIRES THAT
THE SERVICE "SHALL BE REASONABLY CONTINUOUS AND WITHOUT UNREASONABLE
INTERRUPTIONS OR DELAY."  1171.  THE CERTIFICATE OF PUBLIC CONVENIENCES
CONFERS CERTAIN EMINENT DOMAIN RIGHTS UPON THE COMPANY, 1124 (SUPP.
1974 - 1975), AS WELL AS THE RIGHT OF ENTRY ONTO A CUSTOMER'S PROPERTY
TO MAINTAIN AND INSPECT ITS EQUIPMENT.  PA. P.U.C. ELECTRIC
REGULATIONS, RULE 14D.     /2/  IN THE CIVIL RIGHTS CASES, THE COURT
SUGGESTED THAT STATE ACTION MIGHT BE FOUND IF THE CONDUCT IN QUESTION
WERE "SANCTIONED IN SOME WAY BY THE STATE," 109 U.S.,AT 17.  LATER
CASES MADE IT CLEAR THAT THE STATE'S SANCTION DID NOT NEED TO BE IN THE
FORM OF AN AFFIRMATIVE COMMAND.  MCCABE V. ATCHISON, T. & S.F.R. CO.,
235 U.S. 151 (1914); NIXON V. CONDON, 286 U.S. 73 (1932); PUBLIC
UTILITIES COMM'N V. POLLAK, 343 U.S. 451 (1952).  IN BURTON V.
WILMINGTON PARKING AUTHORITY, 365 U.S. 715, 725 (1961), THE COURT NOTED
THAT BY ITS INACTION, THE STATE HAD "ELECTED TO PLACE ITS POWER,
PROPERTY AND PRESTIGE BEHIND THE ADMITTED DISCRIMINATION," ALTHOUGH THE
STATE DID NOT ACTUALLY ORDER THE DISCRIMINATION.  SEE ID., AT 726 - 727
(STEWART, J., CONCURRING).  AND IN REITMAN V. MULKEY, 387 U.S. 369, 381
(1967), THE COURT BASED ITS "STATE ACTION" RULING ON THE FACT THAT THE
CALIFORNIA CONSTITUTIONAL PROVISION "WAS INTENDED TO AUTHORIZE, AND
DOES AUTHORIZE, RACIAL DISCRIMINATION IN THE HOUSING MARKET."  EVEN IN
MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163, 176 - 177 (1972), THE COURT
SUGGESTED THAT IF THE STATE'S REGULATION HAD IN ANY WAY FOSTERED OR
ENCOURAGED RACIAL DISCRIMINATION, A STATE-ACTION FINDING MIGHT HAVE
BEEN JUSTIFIED.  CERTAINLY THIS IS A LESS RIGID STANDARD THAN THE
COURT'S REQUIREMENT IN THIS CASE THAT THE PUBLIC UTILITY COMMISSION BE
SHOWN TO HAVE ORDERED THE CHALLENGED CONDUCT, NOT MERELY TO HAVE
APPROVED IT. 

/3/  I CANNOT ACCEPT THE MAJORITY'S CHARACTERIZATION OF POLLAK AS
NOT NECESSARILY DECIDING THE STATE-ACTION QUESTION THERE PRESENTED. 
ANTE, AT 356.  WHATEVER DOUBT ON THAT SCORE MAY HAVE BEEN CREATED BY
THE ORIGINAL OPINION HAS LONG SINCE BEEN RESOLVED BY THIS COURT.  SEE
EVANS V. NEWTON, 382 U.S. 296, 301 (1966); ID., AT 319 320 (HARLAN, J.,
DISSENTING); COLUMBIA BROADCASTING SYSTEM, INC. V. DEMOCRATIC NATIONAL
COMMITTEE, 412 U.S. 94, 119 (1973) (OPINION OF BURGER, C. J.); ID., AT
133 (STEWART, J., CONCURRING). 

/4/  IN BRONSON JUDGE TYLER NOTED THAT THE STATE UTILITY COMMISSION
HAD FOUND THAT 16% OF THE COMPLAINTS INVESTIGATED RESULTED IN
ADJUSTMENTS IN FAVOR OF THE CUSTOMER.  350 F.SUPP.,AT 448 N. 11. 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONER.  ON THE BRIEFS WERE
ALAN LINDER AND JONATHAN M. STEIN. 

THOMAS M. DEBEVOISE ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY FRANKLIN A.
MARTENS FOR THE NATIONAL CONSUMER LAW CENTER, INC., ET AL., AND BY
RICHARD A. WEISZ, STEFAN M. ROSENZWEIG, MICHAEL B. WEISZ, AND ANTHONY
G. AMSTERDAM FOR THE LEGAL AID FOUNDATION OF LONG BEACH ET AL. 

GILBERT STEIN FILED A BRIEF FOR THE CITY OF PHILADELPHIA AS AMICUS
CURIAE URGING AFFIRMANCE. 

PETER H. SCHIFF AND RICHARD A. SOLOMON FILED A BRIEF FOR THE PUBLIC
SERVICE COMMISSION OF NEW YORK AS AMICUS CURIAE. 
..END :







CANTRELL V. FOREST CITY PUBLISHING CO., 419 U.S. 245 


       CANTRELL ET AL. V. FOREST CITY PUBLISHING CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 5520.  ARGUED NOVEMBER 13, 1974--DECIDED DECEMBER

18, 1974; 484 F.2D 150, REVERSED AND REMANDED. 


    PETITIONERS, A MOTHER AND HER SON, BROUGHT A DIVERSITY ACTION

  AGAINST RESPONDENTS, A NEWSPAPER PUBLISHER AND A REPORTER, FOR

  INVASION OF PRIVACY BASED ON A FEATURE STORY IN THE NEWSPAPER

  DISCUSSING THE IMPACT UPON PETITIONERS'  FAMILY OF THE DEATH OF

  THE FATHER IN A BRIDGE COLLAPSE.  THE STORY CONCEDEDLY CONTAINED

  A NUMBER OF INACCURACIES AND FALSE STATEMENTS ABOUT THE FAMILY. 

  THE DISTRICT JUDGE STRUCK THE CLAIMS FOR PUNITIVE DAMAGES FOR

  LACK OF EVIDENCE OF MALICE "WITHIN THE LEGAL DEFINITION OF THAT

  TERM," BUT ALLOWED THE CASE TO GO TO THE JURY ON THE "FALSE

  LIGHT" THEORY OF INVASION OF PRIVACY, AFTER INSTRUCTING THE

  JURORS THAT LIABILITY COULD BE IMPOSED ONLY IF THEY FOUND THAT

  THE FALSE STATEMENTS WERE PUBLISHED WITH KNOWLEDGE OF THEIR

  FALSITY OR IN RECKLESS DISREGARD OF THE TRUTH, AND THE JURY

  RETURNED A VERDICT FOR COMPENSATORY DAMAGES.  THE COURT OF

  APPEALS REVERSED, HOLDING THAT THE DISTRICT JUDGE SHOULD HAVE

  DIRECTED A VERDICT FOR RESPONDENTS, SINCE HIS FINDING OF NO

  MALICE IN STRIKING THE PUNITIVE DAMAGES CLAIMS WAS BASED ON THE

  DEFINITION OF "ACTUAL MALICE" ESTABLISHED IN NEW YORK TIMES CO.

  V. SULLIVAN, 376 U.S. 254, AND THUS WAS A DETERMINATION THAT

  THERE WAS NO EVIDENCE OF THE KNOWING FALSITY OR RECKLESS

DISREGARD OF THE TRUTH REQUIRED FOR LIABILITY.  HELD:  THE COURT

  OF APPEALS ERRED IN SETTING ASIDE THE JURY'S VERDICT.  PP. 251 -

  254. 

     (A) THE RECORD DISCLOSES THAT THE DISTRICT JUDGE WHEN HE

  DISMISSED THE PUNITIVE DAMAGES CLAIMS WAS NOT REFERRING TO THE

  NEW YORK TIMES "ACTUAL MALICE" STANDARD BUT TO THE COMMON-LAW

  STANDARD OF MALICE THAT IS GENERALLY REQUIRED UNDER STATE TORT

  LAW TO SUPPORT AN AWARD OF PUNITIVE DAMAGES AND THAT IN A "FALSE

LIGHT" CASE WOULD FOCUS ON THE DEFENDANT'S ATTITUDE TOWARD THE

  PLAINTIFF'S PRIVACY AND NOT ON THE TRUTH OR FALSITY OF THE

  MATERIAL PUBLISHED, AND THUS WAS NOT DETERMINING THAT PETITIONERS

  HAD FAILED TO INTRODUCE EVIDENCE OF KNOWING FALSITY OR RECKLESS

  DISREGARD OF THE TRUTH.  PP. 251 - 252. 

     (B) MOREOVER, THE EVIDENCE WAS SUFFICIENT TO SUPPORT JURY

  FINDINGS THAT RESPONDENTS HAD PUBLISHED KNOWING OR RECKLESS

  FALSEHOODS ABOUT PETITIONERS, PARTICULARLY WITH RESPECT TO

  "CALCULATED FALSEHOODS" ABOUT PETITIONER MOTHER'S BEING PRESENT

  WHEN THE STORY WAS BEING PREPARED, AND THAT RESPONDENT REPORTER'S

  WRITING OF THE STORY WAS WITHIN THE SCOPE OF HIS EMPLOYMENT AT

  THE NEWSPAPER SO AS TO RENDER RESPONDENT PUBLISHER VICARIOUSLY

  LIABLE UNDER RESPONDENT SUPERIOR FOR THE KNOWING FALSEHOODS IN

THE STORY.  PP. 252 - 254. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL,

  AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING

  OPINION, POST, P. 254. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

MARGARET CANTRELL AND FOUR OF HER MINOR CHILDREN BROUGHT THIS
DIVERSITY ACTION IN A FEDERAL DISTRICT COURT FOR INVASION OF PRIVACY
AGAINST THE FOREST CITY PUBLISHING CO., PUBLISHER OF A CLEVELAND
NEWSPAPER, THE PLAIN DEALER, AND AGAINST JOSEPH ESZTERHAS, A REPORTER
FORMERLY EMPLOYED BY THE PLAIN DEALER, AND RICHARD CONWAY, A PLAIN
DEALER PHOTOGRAPHER.  THE CANTRELLS ALLEGED THAT AN ARTICLE PUBLISHED
IN THE PLAIN DEALER SUNDAY MAGAZINE UNREASONABLY PLACED THEIR FAMILY IN
A FALSE LIGHT BEFORE THE PUBLIC THROUGH ITS MANY INACCURACIES AND
UNTRUTHS.  THE DISTRICT JUDGE STUCK THE CLAIMS RELATING TO PUNITIVE
DAMAGES AS TO ALL THE PLAINTIFFS AND DISMISSED THE ACTIONS OF THREE OF
THE CANTRELL CHILDREN IN THEIR ENTIRETY, BUT ALLOWED THE CASE TO GO TO
THE JURY AS TO MRS. CANTRELL AND HER OLDEST SON, WILLIAM.  THE JURY
RETURNED A VERDICT AGAINST ALL THREE OF THE RESPONDENTS FOR
COMPENSATORY MONEY DAMAGES IN FAVOR OF THESE TWO PLAINTIFFS. 

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED, HOLDING THAT, IN
THE LIGHT OF THE FIRST AND FOURTEENTH AMENDMENTS, THE DISTRICT JUDGE
SHOULD HAVE GRANTED THE RESPONDENTS' MOTION FOR A DIRECTED VERDICT AS
TO ALL THE CANTRELL'S CLAIMS.  484 F.2D 150.  WE GRANTED CERTIORARI,
418 U.S. 909. 

        I 

IN DECEMBER 1967, MARGARET CANTRELL'S HUSBAND MELVIN WAS KILLED
ALONG WITH 43 OTHER PEOPLE WHEN THE SILVER BRIDGE ACROSS THE OHIO RIVER
AT POINT PLEASURE, WEST VIRGINIA, COLLAPSED.  THE RESPONDENT ESZTERHAS
WAS ASSIGNED BY THE PLAIN DEALER TO COVER THE STORY OF THE DISASTER. 
HE WROTE A "NEWS FEATURE" STORY FOCUSING ON THE FUNERAL OF MELVIN
CANTRELL AND THE IMPACT OF HIS DEATH ON THE CANTRELL FAMILY. 

FIVE MONTHS LATER, AFTER CONFERRING WITH THE SUNDAY MAGAZINE EDITOR
OF THE PLAIN DEALER, ESZTERHAS AND PHOTOGRAPHER CONWAY RETURNED TO THE
POINT PLEASANT AREA TO WRITE A FOLLOW-UP FEATURE.  THE TWO MEN WENT TO
THE CANTRELL RESIDENCE, WHERE ESZTERHAS TALKED WITH THE CHILDREN AND
CONWAY TOOK 50 PICTURES.  MRS. CANTRELL WAS NOT AT HOME AT ANY TIME
DURING THE 60 TO 90 MINUTES THAT THE MEN WERE AT THE CANTRELL
RESIDENCE. 

ESZTERHAS' STORY APPEARED AS THE LEAD FEATURE IN THE AUGUST 4, 1968,
EDITION OF THE PLAIN DEALER SUNDAY MAGAZINE; THE CHILDREN'S OLD, ILL
FITTING CLOTHES AND THE DETERIORATING CONDITION OF THEIR HOME WERE
DETAILED IN BOTH THE TEXT AND ACCOMPANYING PHOTOGRAPHS.  AS HE HAD DONE
IN HIS ORIGINAL, PRIZE-WINNING ARTICLE ON THE SILVER BRIDGE DISASTER,
ESZTERHAS USED THE CANTRELL FAMILY TO ILLUSTRATE THE IMPACT OF THE
BRIDGE COLLAPSE ON THE LIVES OF THE PEOPLE IN THE POINT PLEASANT AREA. 

IT IS CONCEDED THAT THE STORY CONTAINED A NUMBER OF INACCURACIES AND
FALSE STATEMENTS.  MOST CONSPICUOUSLY, ALTHOUGH MRS. CANTRELL WAS NOT
PRESENT AT ANY TIME DURING THE REPORTER'S VISIT TO HER HOME, ESZTERHAS
WROTE, "MARGARET CANTRELL WILL TALK NEITHER ABOUT WHAT HAPPENED NOR
ABOUT HOW THEY ARE DOING.  SHE WEARS THE SAME MASK OF NON-EXPRESSION
SHE WORE AT THE FUNERAL.  SHE IS A PROUD WOMAN.  HER WORLD HAS
CHANGED.  SHE SAYS THAT AFTER IT HAPPENED, THE PEOPLE IN TOWN OFFERED
TO HELP THEM OUT WITH MONEY AND THEY REFUSED TO TAKE IT."  /1/  OTHER
SIGNIFICANT MISREPRESENTATIONS WERE CONTAINED IN DETAILS OF ESZTERHAS'
DESCRIPTIONS OF THE POVERTY IN WHICH THE CANTRELLS WERE LIVING AND THE
DIRTY AND DILAPIDATED CONDITIONS OF THE CANTRELL HOME. 

THE CASE WENT TO THE JURY ON A SO-CALLED "FALSE LIGHT" THEORY OF
INVASION OF PRIVACY.  IN ESSENCE, THE THEORY OF THE CASE WAS THAT BE
PUBLISHING THE FALSE FEATURE STORY ABOUT THE CANTRELLS AND THEREBY
MAKING THEM THE OBJECTS OF PITY AND RIDICULE, THE RESPONDENTS DAMAGED
MRS. CANTRELL AND HER SON WILLIAM BY CAUSING THEM TO SUFFER OUTRAGE,
MENTAL DISTRESS, SHAME, AND HUMILIATION.  /2/

        II 

IN TIME, INC. V. HILL, 385 U.S. 374, THE COURT CONSIDERED A SIMILAR
FALSE-LIGHT, INVASION-OF-PRIVACY ACTION.  THE NEW YORK COURT OF APPEALS
HAD INTERPRETED NEW YORK CIVIL RIGHTS LAW 50 - 51 TO GIVE A "NEWSWORTHY
PERSON" A RIGHT OF ACTION WHEN HIS OR HER NAME, PICTURE OR PORTRAIT WAS
THE SUBJECT OF A "FICTITIOUS"  REPORT OR ARTICLE.  MATERIAL AND
SUBSTANTIAL FALSIFICATION WAS THE TEST FOR RECOVERY.  ID., AT 384 -
386.  UNDER THIS DOCTRINE THE NEW YORK COURTS AWARDED THE PLAINTIFF
JAMES HILL COMPENSATORY DAMAGES BASED ON HIS COMPLAINT THAT LIFE
MAGAZINE HAD FALSELY REPORTED THAT A NEW BROADWAY PLAY PORTRAYED THE
HILL FAMILTY'S EXPERIENCE IN BEING HELD HOSTAGE BY THREE ESCAPED
CONVICTS.  THIS COURT, GUIDED BY ITS DECISION IN NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254, WHICH RECOGNIZED CONSTITUTIONAL LIMITS ON A
STATE'S POWER TO AWARD DAMAGES FOR LIBEL IN ACTIONS BROUGHT BY PUBLIC
OFFICIALS, HELD THAT THE CONSTITUTIONAL PROTECTION FOR SPEECH AND PRESS
PRECLUDED THE APPLICATION OF THE NEW YORK STATUTE TO ALLOW RECOVERY FOR
"FALSE REPORTS OF MATTERS OF PUBLIC INTEREST IN THE ABSENCE OF PROOF
THAT THE DEFENDANT PUBLISHED THE REPORT WITH KNOWLEDGE OF ITS FALSITY
OR IN RECKLESS DISREGARD OF THE TRUTH."  385 U.S.,AT 388.  ALTHOUGH THE
JURY COULD HAVE REASONABLY CONCLUDED FROM THE EVIDENCE IN THE HILL CASE
THAT LIFE HAD ENGAGED IN KNOWING FALSEHOOD OR HAD RECKLESSLY
DISREGARDED THE TRUTH IN STATING IN THE ARTICLE THAT "THE STORY RE
ENACTED" THE HILL FAMILY'S EXPERIENCE, THE COURT CONCLUDED THAT THE
TRIAL JUDGE'S INSTRUCTIONS HAD NOT CONFINED THE JURY TO SUCH A FINDING
AS A PREDICATE FOR LIABILITY AS REQUIRED BY THE CONSTITUTION.  ID., AT
394. 

THE DISTRICT JUDGE IN THE CASE BEFORE US, IN CONTRAST TO THE TRIAL
JUDGE IN TIME, INC. V. HILL, DID INSTRUCT THE JURY THAT LIABILITY COULD
BE IMPOSED ONLY IF IT CONCLUDED THAT THE FALSE STATEMENTS IN THE SUNDAY
MAGAZINE FEATURE ARTICLE ON THE CANTRELLS HAD BEEN MADE WITH KNOWLEDGE
OF THEIR FALSITY OR IN RECKLESS DISREGARD OF THE TRUTH.  /3/  NO
OBJECTION WAS MADE BY ANY OF THE PARTIES TO THIS KNOWING-OR-RECKLESS
FALSEHOOD INSTRUCTION.  CONSEQUENTLY, THIS CASE PRESENTS NO OCCASION TO
CONSIDER WHETHER A STATE MAY CONSTITUTIONALLY APPLY A MORE RELAXED
STANDARDS OF LIABILITY FOR A PUBLISHER OR BROADCASTER OF FALSE
STATEMENTS INJURIOUS TO A PRIVATE INDIVIDUAL UNDER A FALSE-LIGHT THEORY
OF INVASION OF PRIVACY, OR WHETHER THE CONSTITUTIONAL STANDARD
ANNOUNCED IN TIME, INC. V. HILL APPLIES TO ALL FALSE-LIGHT CASES.  CF.
GERTZ V. ROBERT WELCH, INC., 418 U.S. 323.  RATHER, THE SOLE QUESTION
THAT WE NEED DECIDE IS WHETHER THE COURT OF APPEALS ERRED IN SETTING
ASIDE THE JURY'S VERDICT. 

        III 

AT THE CLOSE OF THE PETITIONERS' CASE-IN-CHIEF, THE DISTRICT JUDGE
STRUCK THE DEMAND FOR PUNITIVE DAMAGES.  HE FOUND THAT MRS. CANTRELL
HAD FAILED TO PRESENT ANY EVIDENCE TO SUPPORT THE CHARGES THAT THE
INVASION OF PRIVACY "WAS DONE MALICIOUSLY WITHIN THE LEGAL DEFINITION
OF THAT TERM."  THE COURT OF APPEALS INTERPRETED THIS FINDING TO BE A
DETERMINATION BY THE DISTRICT JUDGE THAT THERE WAS NO EVIDENCE OF
KNOWING FALSITY OR RECKLESS DISREGARD OF THE TRUTH INTRODUCED AT THE
TRIAL.  HAVING MADE SUCH A DETERMINATION, THE COURT OF APPEALS HELD
THAT THE DISTRICT JUDGE SHOULD HAVE GRANTED THE MOTION FOR A DIRECTED
VERDICT FOR RESPONDENTS AS TO ALL THE CANTRELLS' CLAIMS.  484 F.2D,AT
155. 

THE COURT OF APPEALS APPEARS TO HAVE ASSUMED THAT THE DISTRICT
JUDGE'S FINDING OF NO MALICE "WITHIN THE LEGAL DEFINITION OF THAT TERM"
WAS A FINDING BASED ON THE DEFINITION OF "ACTUAL MALICE" ESTABLISHED BY
THIS COURT IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.,AT 180:  "WITH
KNOWLEDGE THAT (A DEFAMATORY STATEMENT) WAS FALSE OR WITH RECKLESS
DISREGARD OF WHETHER IT WAS FALSE OR NOT."  AS SO DEFINED, OF COURSE,
"ACTUAL MALICE" IS A TERM OF ART, CREATED TO PROVIDE A CONVENIENT
SHORTHAND EXPRESSION FOR THE STANDARD OF LIABILITY THAT MUST BE
ESTABLISHED BEFORE A STATE MAY CONSTITUTIONALLY PERMIT PUBLIC OFFICIALS
TO RECOVER FOR LIBEL IN ACTIONS BROUGHT AGAINST PUBLISHERS.  /4/  AS
SUCH, IT IS QUITE DIFFERENT FROM THE COMMON-LAW STANDARD OF "MALICE"
GENERALLY REQUIRED UNDER STATE TORT LAW TO SUPPORT AN AWARD OF PUNITIVE
DAMAGES.  IN A FALSE-LIGHT CASE, COMMON-LAW MALICE--FREQUENTLY
EXPRESSED IN TERMS OF EITHER PERSONAL ILL WILL TOWARD THE PLAINTIFF OR
RECKLESS OR WANTON DISREGARD OF THE PLAINTIFF'S RIGHTS--WOULD FOCUS ON
THE DEFENDANT'S ATTITUDE TOWARD THE PLAINTIFF'S PRIVACY, NOT TOWARD THE
TRUTH OR FALSITY OF THE MATERIAL PUBLISHED.  SEE TIME, INC. V. HILL,
385 U.S.,AT 396 N. 12.  SEE GENERALL W. PROSSER, LAW OF TORTS 9 - 10
(4TH ED.). 

ALTHOUGH THE VERBAL RECORD OF THE DISTRICT COURT PROCEEDINGS IS NOT
ENTIRELY UNAMBIGUOUS, THE CONCLUSION IS INESCAPABLE THAT THE DISTRICT
JUDGE WAS REFERRING TO THE COMMON-LAW STANDARD OF MALICE RATHER THAN TO
THE NEW YORK TIMES "ACTUAL MALICE"  STANDARD WHEN HE DISMISSED THE
PUNITIVE DAMAGES CLAIMS.  FOR AT THE SAME TIME THAT HE DISMISSED THE
DEMANDS FOR PUNITIVE DAMAGES, THE DISTRICT JUDGE REFUSED TO GRANT THE
RESPONDENTS' MOTION FOR DIRECTED VERDICTS AS TO MRS. CANTRELL'S AND
WILLIAM'S CLAIMS FOR COMPENSATORY DAMAGES.  AND, AS HIS INSTRUCTIONS TO
THE JURY MADE CLEAR, THE DISTRICT JUDGE WAS FULLY AWARE THAT THE TIME,
INC. V. HILL MEANING OF THE NEW YORK TIMES "ACTUAL MALICE" STANDARD HAD
TO BE SATISFIED FOR THE CANTRELLS TO RECOVER ACTUAL DAMAGES.  THUS, THE
ONLY WAY TO HARMONIZE THESE TWO VIRTUALLY SIMULTANEOUS RULINGS BY THE
DISTRICT JUDGE IS TO CONCLUDE, CONTRARY TO THE DECISION OF THE COURT OF
APPEALS, THAT IN DISMISSING THE PUNITIVE DAMAGES CLAIMS HE WAS NOT
DETERMINING THAT MRS. CANTRELL HAD FAILED TO INTRODUCE ANY EVIDENCE OF
KNOWING FALSITY OR RECKLESS DISREGARD OF THE TRUTH.  THIS CONCLUSION IS
FURTHER FORTIFIED BY THE DISTRICT JUDGE'S SUBSEQUENT DENIAL OF THE
RESPONDENTS' MOTION FOR JUDGMENT N.O.V. AND ALTERNATIVE MOTION FOR A
NEW TRIAL. 

MOREOVER, THE DISTRICT JUDGE WAS CLEARLY CORRECT IN BELIEVING THAT
THE EVIDENCE INTRODUCED AT TRIAL WAS SUFFICIENT TO SUPPORT A JURY
FINDING THAT THE RESPONDENTS JOSEPH ESZTERHAS AND FOREST CITY
PUBLISHING CO. HAD PUBLISHED KNOWING OR RECKLESS FALSEHOODS ABOUT THE
CANTRELLS.  /5/  THERE WAS NO DISPUTE DURING THE TRIAL THAT ESZTERHAS,
WHO DID NOT TESTIFY, MUST HAVE KNOWN THAT A NUMBER OF THE STATEMENTS IN
THE FEATURE STORY WERE UNTRUE.  IN PARTICULAR, HIS ARTICLE PLAINLY
IMPLIED THAT MRS. CANTRELL HAD BEEN PRESENT DURING HIS VISIT TO HER
HOME AND THAT ESZTERHAS HAD OBSERVED HER "WEARING) THE SAME MASK OF NON
EXPRESSION SHE WORE (AT HER HUSBAND'S) FUNERAL."  THESE WERE
"CALCULATED FALSEHOODS," AND THE JURY WAS PLAINLY JUSTIFIED IN FINDING
THAT ESZTERHAS HAD PORTRAYED THE CANTRELLS IN A FALSE LIGHT THROUGH
KNOWING OR RECKLESS UNTRUTH. 

THE COURT OF APPEALS CONCLUDED THAT THERE WAS NO EVIDENCE THAT
FOREST CITY PUBLISHING CO. HAD KNOWLEDGE OF ANY OF THE INACCURACIES
CONTAINED IN ESZTERHAS'  ARTICLE.  HOWEVER, THERE WAS SUFFICIENT
EVIDENCE FOR THE JURY TO FIND THAT ESZTERHAS' WRITING OF THE FEATURE
WAS WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE PLAIN DEALER AND THAT
FOREST CITY PUBLISHING CO. WAS THEREFORE LIABLE UNDER TRADITIONAL
DOCTRINES OF RESPONDEAT SUPERIOR.  /6/  ALTHOUGH ESZTERHAS WAS NOT
REGULARLY ASSIGNED BY THE PLAIN DEALER TO WRITE FOR THE SUNDAY
MAGAZINE, THE EDITOR OF THE MAGAZINE TESTIFIED THAT AS A STAFF WRITER
FOR THE PLAIN DEALER ESZTERHAS FREQUENTLY SUGGESTED STORIES HE WOULD
LIKE TO WRITE FOR THE MAGAZINE.  WHEN ESZTERHAS SUGGESTED THE FOLLOW-UP
ARTICLE ON THE SILVER BRIDGE DISASTER, THE EDITOR APPROVED THE IDEA AND
TOLD ESZTERHAS THE MAGAZINE WOULD PUBLISH THE FEATURE IF IT WAS GOOD. 
FROM THIS EVIDENCE, THE JURY COULD REASONABLY CONCLUDE THAT FOREST CITY
PUBLISHING CO., PUBLISHER OF THE PLAIN DEALER, SHOULD BE HELD
VICARIOUSLY LIABLE FOR THE DAMAGE CAUSED BY THE KNOWING FALSEHOODS
CONTAINED IN ESZTERHAS'  STORY. 

FOR THE FOREGOING REASONS, THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO
ENTER A JUDGMENT AFFIRMING THE JUDGMENT OF THE DISTRICT COURT AS TO THE
RESPONDENTS FOREST CITY PUBLISHING CO. AND JOSEPH ESZTERHAS. 

              IT IS SO ORDERED. 

/1/  ESZTERHAS, LEGACY OF THE SILVER BRIDGE, THE PLAIN DEALER SUNDAY
MAGAZINE, AUG. 4, 1968, P. 32, COL. 1. 

/2/  ALTHOUGH THIS IS A DIVERSITY ACTION BASED ON STATE TORT LAW,
THERE IS REMARKABLY LITTLE DISCUSSION OF THE RELEVANT OHIO OR WEST
VIRGINIA LAW BY THE DISTRICT COURT, THE COURT OF APPEALS, AND COUNSEL
FOR THE PARTIES.  IT IS CLEAR, HOWEVER, THAT BOTH OHIO AND WEST
VIRGINIA RECOGNIZE A LEGALLY PROTECTED INTEREST IN PRIVACY.  E.G.,
HOUSH V. PETH, 165 OHIO ST. 35, 133 N.E.2D 340; ROACH V. HARPER, 143
W.VA. 869, 105 S.E.2D 564; SUTHERLAND V. KROGER CO., 144 W.VA. 673, 110
S.E.2D 716.  PUBLICITY THAT PLACES THE PLAINTIFF IN A FALSE LIGHT IN
THE PUBLIC EYE IS GENERALLY RECOGNIZED AS ONE OF THE SEVERAL DISTINCT
KINDS OF INVASIONS ACTIONABLE UNDER THE PRIVACY RUBRIC.  SEE PROSSER,
PRIVACY, 48 CALIF.L.REV 383, 398-401; RESTATEMENT (SECOND) OF TORTS
652E (TENT.  DRAFT NO. 13). 

/3/  THE DISTRICT JUDGE INSTRUCTED THE JURY IN PART: 

"(THE CONSTITUTIONAL PROTECTION FOR SPEECH AND PRESS PRECLUDES)
REDRESS FOR FALSE REPORTS OF MATTERS OF PUBLIC INTEREST IN THE ABSENCE
OF PROOF THAT THE DEFENDANTS PUBLISHED THE REPORT WITH KNOWLEDGE OF ITS
FALSITY OR IN RECKLESS DISREGARD OF THE TRUTH.              .
.          .          . 

"THUS, IN THIS CASE THE BURDEN OF PROOF IS UPON THE PLAINTIFFS TO
PROVE BY A PREPONDERANCE OF THE EVIDENCE THEIR ASSERTIONS OF AN
INVASION OF PRIVACY, THE ELEMENTS OF WHICH ARE: 

"(1) AN UNWARRANTED AND/OR WRONGFUL INTRUSION BY THE DEFENDANTS INTO
THEIR PRIVATE OR PERSONAL AFFAIRS WITH WHICH THE PUBLIC HAD NO
LEGITIMATE CONCERN. 

"(2) PUBLISHING A REPORT OR ARTICLE ABOUT PLAINTIFF WITH KNOWLEDGE
OF ITS FALSITY OR IN RECKLESS DISREGARD OF THE TRUTH.     "(3)
DEFENDANTS' ACTS OF PUBLISHING A REPORT OR ARTICLE ABOUT PLAINTIFFS
WITH KNOWLEDGE OF ITS FALSITY OR IN RECKLESS DISREGARD OF THE TRUTH
CAUSED PLAINTIFFS INJURY AS INDIVIDUALS OF ORDINARY SENSIBILITIES AND
DAMAGE IN THE FORM OF OUTRAGE OR MENTAL SUFFERING, SHAME OR
HUMILIATION. 

        .        .          .          . 

"THUS, IF IT BE YOUR CONCLUSION AND DETERMINATION THAT PLAINTIFFS
HAVE FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT DEFENDANTS
INVADED THE (PLAINTIFFS') PRIVACY BY PUBLISHING A REPORT OR ARTICLE
ABOUT THEM WITH KNOWLEDGE OF ITS FALSITY OR IN RECKLESS DISREGARD OF
THE TRUTH, YOU NEED NOT DELIBERATE FURTHER AND YOU WILL RETURN A
VERDICT IN FAVOR OF THE DEFENDANTS." 

THE DISTRICT JUDGE ALSO CHARGED THE JURY: 

"AN ACT IS KNOWINGLY DONE IF DONE VOLUNTARILY AND INTENTIONALLY AND
NOT BECAUSE OF MISTAKE OR ACCIDENT OR OTHER INNOCENT REASON. 

"RECKLESSNESS IMPLIES A HIGHER DEGREE OF CULPABILITY THAN
NEGLIGENCE.  RECKLESSLY MEANS WANTONLY, WITH INDIFFERENCE TO
CONSEQUENCE." 

/4/  IN TIME, INC. V. HILL, 385 U.S. 374, THE COURT DID NOT EMPLOY
THIS TERM OF ART. INSTEAD, THE COURT REPEATED THE ACTUAL STANDARD OF
KNOWING OR RECKLESS FALSEHOOD AT EVERY RELEVANT POINT.  SEE, E.G., ID.,
AT 388, 390, 394. 

/5/  ALTHOUGH WE CONCLUDE THAT THE JURY VERDICTS SHOULD HAVE BEEN
SUSTAINED AS TO ESZTERHAS AND FOREST CITY PUBLISHING CO., WE AGREE WITH
THE COURT OF APPEALS'  CONCLUSION THAT THERE WAS INSUFFICIENT EVIDENCE
TO SUPPORT THE JURY'S VERDICT AGAINST THE PHOTOGRAPHER CONWAY.  CONWAY
TESTIFIED THAT THE PHOTOGRAPHS HE TOOK WERE FAIR AND ACCURATE
DEPICTIONS OF THE PEOPLE AND SCENES HE FOUND AT THE CANTRELL
RESIDENCE.  THIS TESTIMONY WAS NOT CONTRADICTED BY ANY OTHER EVIDENCE
INTRODUCED AT THE TRIAL.  NOR WAS THERE ANY EVIDENCE THAT CONWAY WAS IN
ANY WAY RESPONSIBLE FOR THE INACCURACIES AND MISSTATEMENTS CONTAINED IN
THE TEXT OF THE ARTICLE WRITTEN BY ESZTERHAS.  IN SHORT, CONWAY SIMPLY
WAS NOT SHOWN TO HAVE PARTICIPATED IN PORTRAYING THE CANTRELLS IN A
FALSE LIGHT. 

/6/  THE DISTRICT JUDGE INSTRUCTED THE JURY: 

"ANY ACT OF AN EMPLOYEE OR AGENT, TO BECOME THE ACT OF THE
CORPORATION, MUST BE PERFORMED BY THE EMPLOYEE WHILE ACTING WITHIN THE
SCOPE OF HIS EMPLOYMENT. 

     .          .          .          . 

"THE COURT CHARGES YOU AS A MATTER OF LAW THAT BEFORE ANY ACTS OR
KNOWLEDGE OF JOSEPH ESZTERHAS OR RICHARD T. CONWAY MAY BE IMPUTED TO
THE DEFENDANT, FOREST CITY PUBLISHING COMPANY, THE PLAINTIFFS MUST
PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT DEFENDANT, FOREST CITY
PUBLISHING COMPANY, HAD ACTUAL KNOWLEDGE OF THOSE ACTS AND INFORMATION
OR THAT CONWAY AND ESZTERHAS WERE ACTING WITHIN THE SCOPE OF THEIR
EMPLOYMENT WHEN THEY PERFORMED THE ACTS OR ACQUIRED THE INFORMATION." 

NONE OF THE PARTIES OBJECTED TO THIS INSTRUCTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I ADHERE TO THE VIEWS WHICH I EXPRESSED IN TIMES, INC. V. HILL, 385
U.S. 374, 401 - 402 (1967), AND TO THOSE OF MR. JUSTICE BLACK IN WHICH
I CONCURRED, ID., AT 398 - 401.  FREEDOM OF THE PRESS IS "ABRIDGED" IN
VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS BY WHAT WE DO TODAY. 
THIS LINE OF CASES, WHICH OF COURSE INCLUDES NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254 (1 64), SEEMS TO ME TO PLACE FIRST AMENDMENT
RIGHTS OF THE PRESS AT A MIDWAY POINT SIMILAR TO WHAT OUR ILL-FATED
BETTS V. BRADY, 316 U.S. 455 (1942), DID TO THE RIGHT TO COUNSEL.  THE
PRESS WILL BE "FREE" IN THE FIRST AMENDMENT SENSE WHEN THE JUDGE-MADE
QUALIFICATIONS OF THAT FREEDOM AR WITHDRAWN AND THE SUBSTANCE OF THE
FIRST AMENDMENT RESTORED TO WHAT I BELIEVE WAS THE PURPOSE OF ITS
ENACTMENT. 

A BRIDGE ACCIDENT CATAPULTED THE CANTRELLS INTO THE PUBLIC EYE AND
THEIR DISASTER BECAME NEWSWORTHY.  TO MAKE THE FIRST AMENDMENT FREEDOM
TO REPORT THE NEWS TURN ON SUBTLE DIFFERENCES BETWEEN COMMON-LAW MALICE
AND ACTUAL MALICE IS TO STAND THE AMENDMENT ON ITS HEAD.  THOSE WHO
WRITE THE CURRENT NEWS SELDOM HAVE THE OBJECTIVE, DISPASSIONATE POINT
OF VIEW--OR THE TIME--OF SCIENTIFIC ANALYSTS.  THEY DEAL IN FAST-MOVING
EVENTS AND THE NEED FOR "SPOT" REPORTING.  THE JURY UNDER TODAY'S
FORMULA SITS AS A CENSOR WITH BROAD POWERS--NOT TO IMPOSE A PRIOR
RESTRAINT, BUT TO LAY HEAVY DAMAGES ON THE PRESS.  THE PRESS IS "FREE"
ONLY IF THE JURY IS SUFFICIENTLY DISENCHANTED WITH THE CANTRELLS TO LET
THE PRESS BE FREE OF THIS DAMAGES CLAIM.  THAT REGIME IS THOUGHT BY
SOME TO BE A WAY OF SUPERVISING THE PRESS WHICH IS BETTER THAN NOT
SUPERVISING IT AT ALL.  BUT THE INSTALLATION OF THE COURT'S REGIME
WOULD REQUIRE A CONSTITUTIONAL AMENDMENT.  WHATEVER MIGHT BE THE
ULTIMATE REACH OF THE DOCTRINE MR. JUSTICE BLACK AND I HAVE EMBRACED,
IT SEEMS CLEAR THAT IN MATTERS OF PUBLIC IMPORT SUCH AS THE PRESENT
NEWS REPORTING, THERE MUST BE FREEDOM FROM DAMAGES LEST THE PRESS BE
FRIGHTENED INTO PLAYING A MORE IGNOBLE ROLE THAN THE FRAMERS
VISUALIZED. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

HARRY ALAN SHERMAN ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONERS. 

SMITH WARDER ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE JOHN R. COUGHLIN AND MARK L. ROSEN. 
..END :



GULF OIL CORP. V. COPP PAVING CO., 419 U.S. 186 


       GULF OIL CORP. ET AL. V. COPP PAVING CO., INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 73 - 1012.  ARGUED OCTOBER 21 - 22, 1974--DECIDED

           DECEMBER 17, 1974; 487 F.2D 202, REVERSED. 


    RESPONDENT OPERATORS OF A CALIFORNIA "HOT PLANT," AT WHICH

  ASPHALTIC CONCRETE FOR SURFACING HIGHWAYS IS MANUFACTURED AND

  SOLD ENTIRELY INTRASTATE, ALLEGING VIOLATIONS OF, INTER ALIA,

  2(A) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT

  (HEREAFTER 2(A)), AND 3 AND 7 OF THE CLAYTON ACT, BROUGHT SUIT

  AGAINST PETITIONER LIQUID ASPHALT PRODUCERS AND TWO OF THEIR

  SUBSIDIARIES, TO WHICH SUCH ASPHALT IS SOLD AND WHICH USE IT TO

  MANUFACTURE AND SELL ASPHALTIC CONCRETE IN COMPETITION WITH

  RESPONDENTS.  SECTION 2(A) FORBIDS "ANY PERSON ENGAGED IN

  COMMERCE, IN THE COURSE OF SUCH COMMERCE" TO DISCRIMINATE IN

  PRICE "WHERE EITHER OR ANY OF THE PURCHASES INVOLVED IN SUCH

 DISCRIMINATION ARE IN COMMERCE"  AND THE DISCRIMINATION HAS

  SUBSTANTIAL ANTICOMPETITIVE EFFECTS "IN ANY LINE OF COMMERCE." 

  SECTION 3 MAKES IT UNLAWFUL "FOR ANY PERSON ENGAGED IN COMMERCE,

  IN THE COURSE OF SUCH COMMERCE" TO MAKE TIE-IN SALES OR ENTER

  EXCLUSIVE-DEALING ARRANGEMENTS WHERE THE EFFECT "MAY BE TO

  SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY IN

  ANY LINE OF COMMERCE."  AND 7 FORBIDS CERTAIN ACQUISITIONS BY A

  CORPORATION "ENGAGED IN COMMERCE" OF THE ASSETS OR STOCK "OF

  ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE" WHERE THE EFFECT

MAY BE SUBSTANTIALLY TO LESSEN COMPETITION "IN ANY LINE OF

COMMERCE IN ANY SECTION OF THE COUNTRY."  THE DISTRICT COURT HELD

  THAT IT HAD NO JURISDICTION OF THE CLAIMS BECAUSE THE MARKET FOR

  ASPHALTIC CONCRETE IS EXCLUSIVELY AND NECESSARILY LOCAL, BUT THE

  COURT OF APPEALS REVERSED, HOLDING THAT THE JURISDICTIONAL

  REQUIREMENTS OF 2(A), 3, AND 7 WERE SATISFIED BY THE FACT THAT

  SALES OF ASPHALTIC CONCRETE ARE MADE FOR USE IN INTERSTATE

  HIGHWAYS.  HELD: 

     1.  THE FACT THAT INTERSTATE HIGHWAYS ARE INSTRUMENTALITIES OF

  COMMERCE DOES NOT RENDER PETITIONERS' CONDUCT WITH RESPECT TO A

  MATERIAL SOLD FOR USE IN CONSTRUCTING THESE HIGHWAYS "IN

  COMMERCE" AS A MATTER OF LAW FOR PURPOSES OF 2(A), 3, AND 7 OF

  THE CLAYTON ACT.  OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125,

  AND ALSLATE CONSTRUCTION CO. V. DURKIN, 345 U.S. 13,

  DISTINGUISHED.  PP. 193 - 199. 

     2.  THE "IN COMMERCE" LANGUAGE OF THE ROBINSON-PATMAN AND

  CLAYTON ACT PROVISIONS IN QUESTION DOES NOT EXTEND ON AN "EFFECTS

  ON COMMERCE" THEORY TO PETITIONERS'  SALES AND ACQUISITIONS.  PP.

  199 - 203. 

     (A) IN FACE OF THE LONGSTANDING JUDICIAL INTERPRETATION OF THE

  LANGUAGE OF 2(A) REQUIRING THAT "EITHER OR ANY OF THE PURCHASES

  INVOLVED IN SUCH DISCRIMINATION (BE) IN COMMERCE," AS MEANING

  THAT 2(A) APPLIES ONLY WHERE "'AT LEAST ONE OF THE TWO

  TRANSACTIONS WHICH, WHEN COMPARED, GENERATE A DISCRIMINATION . .

  . CROSSES) A STATE LINE,'" HIRAM WALKER, INC. V. A & S TROPICAL,

  INC., 407 F.2D 4, 9; BELLISTON V. TEXACO, INC., 455 F.2D 175,

  178, AND THE CONTINUED CONGRESSIONAL SILENCE ON THE SUBJECT, THIS

  COURT IS NOT WARRANTED IN EXTENDING 2(A) BEYOND ITS CLEAR

  LANGUAGE TO REACH A MULTITUDE OF LOCAL ACTIVITIES HITHERTO LEFT

  TO STATE AND LOCAL REGULATION.  PP. 199 - 201. 

     (B) THE "EFFECTS ON COMMERCE" THEORY, WHEREBY 3 AND 7 OF THE

  CLAYTON ACT WOULD BE HELD TO EXTEND TO ACQUISITIONS AND SALES

  HAVING SUBSTANTIAL EFFECTS ON COMMERCE, EVEN IF LEGALLY CORRECT,

  FAILS HERE FOR WANT OF PROOF, SINCE RESPONDENTS PRESENTED NO

  EVIDENCE OF EFFECT ON INTERSTATE COMMERCE FROM THE USE OF

  ASPHALTIC CONCRETE IN INTERSTATE HIGHWAYS.  PP. 201 - 203. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND STEWART, WHITE, MARSHALL, BLACKMUN, AND

  REHNQUIST, JJ., JOINED.  MARSHALL, J., FILED A CONCURRING

  OPINION, POST, P. 203.  DOUGLAS, J., FILED A DISSENTING OPINION,

  IN WHICH BRENNAN, J., JOINED, POST, P. 204. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE JURISDICTIONAL REQUIREMENTS OF 2(A) OF THE
CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT, 49 STAT. 1529, /20/
15 U.S.C. 13(A), AND OF 3 AND 7 OF THE CLAYTON ACT, 38 STAT. 731, AS
AMENDED, 15 U.S.C. 14 AND 18.  IT PRESENTS THE QUESTIONS WHETHER A FIRM
ENGAGED IN ENTIRELY INTRASTATE SALES OF ASPHALTIC CONCRETE, A RPODUCT
THAT CAN BE MARKETED ONLY LOCALLY, IS A CORPORATION "IN COMMERCE"
WITHIN THE MEANING OF EACH OF THESE SECTIONS, AND WHETHER SUCH SALES AS
"IN COMMERCE" AND "IN THE COURSE OF SUCH COMMERCE" WITHIN THE MEANING
OF 2(A) AND 3 RESPECTIVELY.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT
HELD THESE JURISDICTIONAL REQUIREMENTS SATISFIED, WITHOUT MORE, BY THE
FACT THAT SALES OF ASPHALTIC CONCRETE ARE MADE FOR USE IN CONSTRUCTION
OF INTERSTATE HIGHWAYS.  487 F.2D 202 (1973).  WE REVERSE. 

        I 

ASPHALTIC CONCRETE IS A PRODUCT USED TO SURFACE ROADS AND HIGHWAYS. 
IT IS MANUFACTURED AS "HOT PLANTS" BY COMBINING, AT TEMPERATURES OF
APPROXIMATELY 375 DEGREES F, ABOUT 5% LIQUID PETROLEUM ASPHALT WITH
ABOUT 95% AGGREGATES AND FILLERS.  THE SUBSTANCE IS DELIVERED BY TRUCK
TO CONSTRUCTION SITES, WHERE IT IS PLACED AT TEMPERATURES OF ABOUT 275
DEGREES F. BECAUSE IT MUST BE HOT WHEN PLACED AND BECAUSE OF ITS GREAT
WEIGHT AND RELATIVELY LOW VALUE, ASPHALTIC CONCRETE CAN BE SOLD AND
DELIVERED PROFITABLY ONLY WITHIN A RADIUS OF 35 MILES OR SO FROM THE
HOT PLANT. 

PETITIONERS UNION OIL CO., GULF OIL CORP., AND EDGINGTON OIL CO.,
DEFENDANTS BELOW, PRODUCE LIQUID PETROLEUM ASPHALT FROM CRUDE OIL AT
THEIR CALIFORNIA REFINERIES.  THE COMPANIES SELL LIQUID ASPHALT TO
THEIR SUBSIDIARIES AND OTHER FIRMS THROUGHOUT THE WESTERN STATES.  THE
MARKET IN LIQUID ASPHALT IS INTERSTATE, AND EACH OIL COMPANY CONCEDES
THAT IT ENGAGES IN INTERSTATE COMMERCE. 

PETITIONER UNION OIL SELLS SOME OF ITS LIQUID ASPHALT TO ITS WHOLLY
OWNED SUBSIDIARY, SULLY-MILLER CONTRACTING CO., WHICH USES IT TO
MANUFACTURE ASPHALTIC CONCRETE AT 11 HOT PLANTS IN LOS ANGELES AND
ORANGE COUNTIES, CALIFORNIA.  GULF OIL SELLS ALL OF ITS LIQUID ASPHALT
TO ITS WHOLLY OWNED SUBSIDIARY, PETITIONER INDUSTRIAL ASPHALT, INC.
INDUSTRIAL DISTRIBUTES THE LIQUID ASPHALT TO THIRD PARTIES AND ALSO
USES IT TO PRODUCE ASPHALTIC CONCRETE AT 55 HOT PLANTS IN CALIFORNIA,
ARIZONA, AND NEVADA.  EDGINGTON OIL SELLS ITS LIQUID ASPHALT TO, INTER
ALIA, SULLY-MILLER, INDUSTRIAL, AND RESPONDENTS. 

RESPONDENTS, COPP PAVING CO., INC., COPP EQUIPMENT CO., INC., AND
ERNEST A. COPP, /1/  OPERATE A HOT PLANT IN ARTESIA, CALIFORNIA, WHERE
THEY PRODUCE ASHPALTIC CONCRETE BOTH FOR COPP'S OWN USE AS A PAVING
CONTRACTOR AND FOR SALE TO OTHER CONTRACTORS.  COPP'S OPERATIONS AND
ASPHALTIC CONCRETE SALES ARE LIMITED TO THE SOUTHERN HALF OF LOS
ANGELES COUNTY, WHERE IT COMPETES WITH SULLY-MILLER AND INDUSTRIAL IN
THE ASPHALTIC CONCRETE MARKET.  ALL THREE FIRMS SELL A MORE THAN DE
MINIMIS SHARE OF THEIR ASPHALTIC CONCRETE FOR USE IN THE CONSTRUCTION
OF LOCAL SEGMENTS OF THE INTERSTATE HIGHWAY SYSTEM.  NEITHER COPP,
INDUSTRIAL, NOR SULLY-MILLER MAKES ANY INTERSTATE SALES OF THE
PRODUCT.  /2/ 

COPP FILED THIS COMPLAINT IN THE DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA AGAINST THE OIL COMPANIES, SULLY-MILLER, AND
INDUSTRIAL, SEEKING INJUNCTIVE RELIEF AND TREBLE DAMAGES.  /3/  THE
COMPLAINT, AS AMENDED, ALLEGED THAT THE VARIOUS DEFENDANTS HAD
COMMITTED A CATALOG OF ANTITRUST VIOLATIONS WITH RESPECT TO BOTH THE
ASPHALT OIL AND ASPHALTIC CONCRETE MARKETS.  CLAIMING HARM TO ITSELF AS
A CONSUMER OF LIQUID ASPHALT, COPP ALLEGED:  THAT THE DEFENDANTS HAD
FIXED PRICES AND ALLOCATED THE ASPHALT OIL MARKET GEOGRAPHICALLY, IN
VIOLATION OF 1 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C.
1; THAT THEY HAD SOLD LIQUID ASPHALT AT DISCRIMINATORY PRICES TO COPP
AND OTHER PURCHASERS, IN VIOLATION OF 2(A) OF THE ROBINSON-PATMAN ACT;
AND THAT GULF OIL HAD VIOLATED 7 OF THE CLAYTON ACT BY ACQUIRING
INDUSTRIAL.  ALSO CLAIMING HARM TO ITSELF AS A COMPETITOR IN THE
ASPHALTIC CONCRETE MARKET, COPP FURTHER ALLEGED:  THAT THE DEFENDANTS
HAD FIXED PRICES, DIVIDED THE MARKET GEOGRAPHICALLY, AND EMPLOYED
VARIOUS METHODS OF MONOPOLIZING AND ATTEMPTING TO GAIN A MONOPOLY IN
THE LOS ANGELES AREA MARKET, IN VIOLATION OF 1 AND 2 OF THE SHERMAN
ACT; THAT, IN VIOLATION OF 3 OF THE CLAYTON ACT, INDUSTRIAL AND SULLY
MILLER HAD CONDITIONED SALES OF ASPHALTIC CONCRETE IN AREAS WHERE COPP
DID NOT COMPETE ON CUSTOMERS' AGREEING TO BUY ONLY FROM THE DEFENDANTS
IN AREAS WHERE COPP DID COMPETE, AND HAD "TIED" SALES OF ASPHALTIC
CONCRETE TO SALES OF OTHER COMMODITIES AND TO FAVORABLE EXTENSIONS OF
CREDIT; THAT, IN VIOLATION OF 7 OF THE CLAYTON ACT, GULF OIL HAD
ACQUIRED INDUSTRIAL AND UNION OIL HAD ACQUIRED SULLY-MILLER, THESE
ACQUISITIONS APPARENTLY HAVING THE EFFECT OF LESSENING COMPETITION IN
THE LOS ANGELES ASPHALTIC CONCRETE MARKET; AND, FINALLY, THAT
INDUSTRIAL AND SULLY-MILLER HAD DISCRIMINATED IN THE PRICES AT WHICH
THEY SOLD ASPHALTIC CONCRETE, CHARGING HIGHER PRICES IN AREAS WHERE
COPP DID NOT COMPETE, THIS IN VIOLATION OF 2(A). 

BECAUSE OF THE LIQUID ASPHALT CLAIMS, THE CASE WAS ONE OF THE
WESTERN LIQUID ASPHALT CASES TRANSFERRED, PURSUANT TO 28 U.S.C. 1407,
TO THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA FOR
COORDINATED PRETRIAL PROCEEDINGS.  /4/  THE DEFENDANTS THEREAFTER MOVED
FOR SUMMARY JUDGMENT IN FAVOR OF SULLY-MILLER, AGAINST WHICH COPP HAD
ALLEGED ONLY VIOLATIONS ARISING FROM CONDUCT IN THE ASPHALTIC CONCRETE
MARKET.  THE MOTION ALSO SOUGHT TO LIMIT THE ISSUES AS TO THE OTHER
DEFENDANTS TO THOSE INVOLVING LIQUID ASPHALT. 

THE DISTRICT COURT ORDERED FULL DISCOVERY AS TO JURISDICTION OVER
COPP'S ASPHALTIC CONCRETE CLAIMS.  AT THE CONCLUSION OF DISCOVERY,
COPP'S JURISDICTIONAL SHOWING RESTED SOLELY ON THE FACT THAT SOME OF
THE STREETS AND ROADS IN THE LOS ANGELES AREA ARE SEGMENTS OF THE
FEDERAL INTERSTATE HIGHWAY SYSTEM, AND ON A STIPULATION THAT A GREATER
THEN DE MINIMIS AMOUNT OF ASPHALTIC CONCRETE IS USED IN THEIR
CONSTRUCTION AND REPAIR.  THE DISTRICT COURT THEREUPON ENTERED AN ORDER
DISMISSING ALL CLAIMS AGAINST SULL-MILLER AND THOSE CLAIMS AGAINST THE
OTHER DEFENDANTS INVOLVING THE MARKETING OF ASPHALTIC CONCRETE. 

IN ITS OPINION ACCOMPANYING THIS ORDER THE COURT EXPLICITY DISCUSSED
ONLY THE JURISDICTIONAL REQUIREMENTS OF THE SHERMAN ACT.  /5/  ON THE
FACTS PRESENTED TO IT, THE COURT FOUND THAT ASPHALTIC CONCRETE IS MADE
WHOLLY FROM COMPONENTS PRODUCED AND PURCHASED INTRASTATE AND THAT THE
PRODUCT'S MARKET IS EXCLUSIVELY AND NECESSARILY LOCAL.  BECAUSE OF
THESE FACTORS, THE COURT CONCLUDED THAT THE ALLEGED RESTRAINTS OF TRADE
IN ASPHALTIC CONCRETE COULD NOT BE DEEMED WITHIN THE FLOW OF INTERSTATE
COMMERCE, DESPITE USE OF THE PRODUCT IN INTERSTATE HIGHWAYS.  MOREOVER,
COPP HAD FAILED TO SHOW, EITHER BY DEDUCTION FROM THE EVIDENCE OR BY
THE EVIDENCE ITSELF, THAT THE ALLEGED RESTRAINTS AS TO ASPHALTIC
CONCRETE WOULD AFFECT ANY INTERSTATE MARKET.  IT HAD NEITHER SHOWN A
NECESSARY OR PROBABLE ADVERSE CONSEQUENCE TO THE CONSTRUCTION OF
INTERSTATE HIGHWAYS AND HENCE TO THE FLOW OF COMMERCE, NOR HAD IT
SUGGESTED OR SUPPORTED A THEORY BY WHICH RESTRAINTS ON LOCAL TRADE IN
ASPHALTIC CONCRETE AFFECT THE INTERSTATE LIQUID ASPHALT MARKET.  THE
COURT HELD THAT IT LACKED JURISDICTION OF COPP'S ASPHALTIC CONCRETE
CLAIMS UNDER THE SHERMAN ACT AND THEREFORE THAT COPP ALSO HAD FAILED TO
SUPPORT JURISDICTION UNDER THE ROBINSON-PATMAN AND CLAYTON ACTS. 

ON COPP'S INTERLOCUTORY APPEAL, 28 U.S.C. 1292(B), THE NINTH CIRCUIT
REVERSED, HOLDING AS TO THE SHERMAN ACT CLAIMS "THAT THE PRODUCTION OF
ASPHALT FOR USE IN INTERSTATE HIGHWAYS RENDERED THE PRODUCERS
'INSTRUMENTALITIES' OF INTERSTATE COMMERCE AND PLACED THEM 'IN' THAT
COMMERCE AS A MATTER OF LAW."  487 F.2D,AT 204.  HAVING SO CONCLUDED,
THE COURT HELD THAT JURISDICTION PROPERLY ATTACHED TO COPP'S CLAYTON
AND ROBINSON-PATMAN ACT CLAIMS AS WELL, SINCE THOSE ACTS WERE INTENDED
TO SUPPLEMENT THE PURPOSE AND EFFECT OF THE SHERMAN ACT.  ID., AT 205 -
206.  /6/ 

WE GRANTED CERTIORARI, DESPITE THE INTERLOCUTORY CHARACTER OF THE
NINTH CIRCUIT'S JUDGMENT, BECAUSE OF THE INPORTANCE OF THE ISSUES BOTH
TO THIS LITIGATION AND TO PROPER INTERPRETATION OF THE JURISDICTIONAL
REACH OF THE ANTITRUST LAWS, AND BECAUSE OF OSTENSIBLE CONFLICTS WITH
DECISIONS OF OTHER CIRCUITS.  /7/  WE LIMITED THE GRANT, HOWEVER, TO
THE QUESTION ARISING UNDER THE CLAYTON AND ROBINSON-PATMAN ACTS.  /8/
415 U.S. 988 (1974). 

        II 

THE TEST OF EACH OF THE STATUTORY PROVISIONS INVOLVED HERE IS SET
FORTH IN THE MARGIN.  /9/  IN BRIEF, 2(A) OF THE ROBINSON-PATMAN ACT
FORBIDS "ANY PERSON ENGAGED IN COMMERCE, IN THE COURSE OF SUCH
COMMERCE" TO DISCRIMINATE IN PRICE "WHERE EITHER OR ANY OF THE
PURCHASERS INVOLVED IN SUCH DISCRIMINATION ARE IN COMMERCE" AND WHERE
THE DISCRIMINATION HAS SUBSTANTIAL ANTICOMPETITIVE EFFECTS "IN ANY LINE
OF COMMERCE."  SECTION 3 OF THE CLAYTON ACT MAKES IT UNLAWFUL "FOR ANY
PERSON ENGAGED IN COMMERCE, IN THE COURSE OF SUCH COMMERCE" TO MAKE TIE
IN SALES OR ENTER EXCLUSIVE-DEALING ARRANGEMENTS, WHERE THE EFFECT "MAY
BE TO SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY IN
ANY LINE OF COMMERCE."  SECTION 7 OF THE CLAYTON ACT FORBIDS CERTAIN
ACQUISITIONS BY A CORPORATION "ENGAGED IN COMMERCE" OF THE ASSETS OR
STOCK "OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE," WHERE THE
EFFECT MAY BE SUBSTANTIALLY TO LESSEN COMPETITION "IN ANY LINE OF
COMMERCE IN ANY SECTION OF THE COUNTRY." 

THE EXPLICIT REACH OF THESE PROVISIONS EXTENDS ONLY TO PERSONS AND
ACITIVITIES THAT ARE THEMSELVES "IN COMMERCE," THE TERM "COMMERCE"
BEING DEFINED IN 1 OF THE CLAYTON ACT, INSOFAR AS RELEVANT HERE, AS
"TRADE OR COMMERCE AMONG THE SEVERAL STATES AND WITH FOREIGN NATIONS. 
. . ."  15 U.S.C. 12.  THIS "IN COMMERCE"  LANGUAGE DIFFERS DISTINCTLY
FROM THAT OF 1 OF THE SHERMAN ACT, WHICH INCLUDES WITHIN ITS SCOPE ALL
PROHIBITED CONDUCT "IN RESTRAINT OF TRADE OR COMMERCE AMONG THE SEVERAL
STATES, OR WITH FOREIGN NATIONS.  . . ."  THE JURISDICTIONAL REACH OF
SEC . 1 THUS IS KEYED DIRECTLY TO EFFECTS ON INTERSTATE MARKETS AND THE
INTERSTATE FLOW OF GOODS.  MOREOVER, OUR CASES HAVE RECOGNIZED THAT IN
ENACTING 1 CONGRESS "WANTED TO GO TO THE UTMOST EXTENT OF ITS
CONSTITUIONAL POWER IN RESTRAINING TRUST AND MONOPOLY AGREEMENTS.  . .
."  UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533,
558 (1944).  CONSISTENTLY WITH THIS PURPOSE AND WITH THE PLAIN THRUST
OF THE STATUTORY LANGUAGE, THE COURT HAS HELD THAT, HOWEVER LOCAL ITS
IMMEDIATE OBJECT, A "CONTRACT, COMBINATION . . . OR CONSPIRACY"
NONETHELESS MAY CONSTITUTE A RESTRAINT WITHIN THE MEANING OF 1 IF IT
SUBSTANTIALLY AND ADVERSELY AFFECTS INTERSTATE COMMERCE.  E.G.,
MANDEVILLE ISLAND FARMS V. AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219,
234 (1948).  "IF IT IS INTERSTATE COMMERCE THAT FEELS THE PINCH, IT
DOES NOT MATTER HOW LOCAL THE OPERATION WHICH APPLIES THE SQUEEZE." 
UNITED STATES V. WOMEN'S SPORTSWEAR MFRS.  ASSN., 336 U.S. 460, 464
(1949). 

IN CONTRAST TO 1, THE DISTINCT "IN COMMERCE" LANGUAGE OF THE CLAYTON
AND ROBINSON-PATMAN ACT PROVISIONS WITH WHICH WE ARE CONCERNED HERE
APPEARS TO DENOTE ONLY PERSONS OR ACTIVITIES WITHIN THE FLOW OF
INTERSTATE COMMERCE--THE PRACTICAL, ECONOMIC CONTINUITY IN THE
GENERATION OF GOODS AND SERVICES FOR INTERSTATE MARKETS AND THEIR
TRANSPORT AND DISTRIBUTION TO THE CONSUMER.  IF THIS IS SO, THE
JURISDICTIONAL REQUIREMENTS OF THESE PROVISIONS CANNOT BE SATISFIED
MERELY BY SHOWING THAT ALLEGEDLY ANTICOMPETITIVE ACQUISITIONS AND
ACTIVITIES AFFECT COMMERCE.  UNLESS IT APPEARS (I) THAT SULLY-MILLER
ENGAGES IN INTERSTATE COMMERCIAL ACTIVITIES (7), (II) THAT INDUSTRIAL'S
ALLEGED EXCLUSIVE-DEALING ARRANGEMENTS AND DISCRIMINATORY SALES OCCUR
IN THE COURSE OF ITS INTERSTATE ACTIVITIES (2(A) AND 3), AND (III) THAT
AT LEAST ONE OF INDUSTRIAL'S ALLEGEDLY DISCRIMINATORY SALES WAS MADE IN
INTERSTATE COMMERCE (2(A)), COPP'S CLAIM MUST FAIL. 

COPP ARGUES, AND THE COURT OF APPEALS FOR THE NINTH CIRCUIT AGREED,
THAT IT HAD MADE EXACTLY THIS SORT OF "IN COMMERCE" SHOWING.  COPP DOES
NOT CONTEND THAT INDUSTRIAL AND SULLY-MILLER IN FACT MAKE INTERSTATE
ASPHALTIC CONCRETE SALES OR ARE OTHERWISE DIRECTLY INVOLVED IN NATIONAL
MARKETS.  CF. UNITED STATES V. PHILADEPHIA NATIONAL BANK, 374 U.S. 321,
336 N. 12 (1963).  NOR DOES IT CONTEND THAT THE LOCAL MARKET IN
ASPHALTIC CONCRETE IS AN INTEGRAL PART OF THE INTERSTATE MARKET IN
OTHER COMPONENT COMMODITIES OR PRODUCTS.  INSTEAD, COPP'S "IN COMMERCE"
ARGUMENT TURNS ENTIRELY ON THE USE OF ASPHALTIC CONCRETE IN THE
CONSTRUCTION OF INTERSTATE HIGHWAYS. 

IN SUPPORT OF THIS ARGUMENT, COPP RELIES PRIMARI Y ON CASES DECIDED
UNDER THE FAIR LABOR STANDARDS ACT.  /10/  IN THE FIRST OF THESE,
OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125 (1943), THE COURT HELD
THAT BECAUSE INTERSTATE ROADS AND RAILROADS ARE INDISPENSABLE
INSTRUMENTALITIES OF INTERSTATE COMMERCE, EMPLOYEES ENGAGED IN THE
CONSTRUCTION OR REPAIR OF SUCH ROADS ARE EMPLOYEES "IN COMMERCE" TO
WHOM, BY ITS TERMS, THE FAIR LABOR STANDARDS ACT EXTENDS.  SUBSEQUENTLY
IN ALSTATE CONSTRUCTION CO. V. DURKIN, 345 U.S. 13 (1953), THE COURT
HELD THAT SINCE INTERSTATE HIGHWAYS ARE INSTRUMENTALITIES OF COMMERCE,
EMPLOYEES ENGAGED IN THE MANUFACTURE OF MATERIALS USED IN THEIR
CONSTRUCTION ARE PROPERLY DEEMED TO BE ENGAGED "IN THE PRODUCTION OF
GOODS FOR COMMERCE," WITHIN THE MEANING OF THAT PHRASE IN THE FAIR
LABOR STANDARDS ACT.  COPP REASONS THAT SINCE THE CONNECTION BETWEEN
MANUFACTURE OF ROAD MATERIALS AND INTERSTATE COMMERCE WAS ENOUGH FOR
APPLICATION OF THE FAIR LABOR STANDARDS ACT, IT ALSO SHOULD BE
SUFFICIENT TO WARRANT INVOCATION OF THE CLAYTON AND ROBINSON-PATMAN ACT
PROVISIONS AGAINST SELLERS AND SALES OF SUCH MATERIALS.     BUT WE ARE
CONCERNED IN THIS CASE WITH SIGNIFICANTLY DIFFERENT STATUTES.  AS IN
OVERSTREET AND ALSTATE, THERE IS NO QUESTION OF CONGRESS' POWER UNDER
THE COMMERCE CLAUSE TO INCLUDE OTHERWISE OSTENSIBLY LOCAL ACTIVITIES
WITHIN THE REACH OF FEDERAL ECONOMIC REGULATION, WHEN SUCH ACTIVITIES
SUFFICIENTLY IMPLICATE INTERSTATE COMMERCE.  /11/  THE QUESTION,
RATHER, IS HOW FAR CONGRESS INTENDED TO EXTEND ITS MANDATE UNDER THE
CLAYTON AND ROBINSON-PATMAN ACTS.  /12/  THE ANSWER DEPENDS ON THE
STATUTORY LANGUAGE, READ IN LIGHT OF ITS PURPOSES AND LEGISLATIVE
HISTORY.  SEE FTC V. BUNTE BROS., 312 U.S. 349 (1941). 

CONGRESS HAS DEEMED INTERSTATE HIGHWAYS CRITICAL TO THE NATIONAL
ECONOMY AND HAS AUTHORIZED EXTENSIVE FEDERAL PARTICIPATION IN THEIR
FINANCING AND REGULATION.  NOTHING, HOWEVER, IN THE FEDERAL-AID HIGHWAY
ACT /13/  OR OTHER LEGISLATION EVINCES AN INTENTION TO APPLY THE FULL
RANGE OF ANTITRUST LAWS TO PERSONS WHO, AS PART OF THEIR LOCAL
BUSINESS, SUPPLY MATERIALS USED IN CONSTRUCTION OF LOCAL SEGMENTS OF
INTERSTATE ROADS.  NOR DOES THE FACT THAT INTERSTATE HIGHWAYS ARE
INSTRUMENTALITIES OF COMMERCE SOMEHOW RENDER THE SUPPLIERS OF MATERIALS
INSTRUMENTALITIES OF COMMERCE AS WELL, IN THE SENSE USED IN
OVERSTREET.  NO DIFFERENT CONCLUSION CAN BE DRAWN FROM ALSTATE.  THE
STATUTE INVOLVED THERE EXPLICITLY REACHED PERSONS EMPLOYED "IN THE
PRODUCTION OF GOODS FOR COMMERCE."  CONGRESS COULD AND, ACCORDING TO
THE COURT IN ALSTATE, DID FIND THAT THE FEDERAL CONCERNS EMBODIED IN
THE FAIR LABOR STANDARDS ACT REQUIRED ITS APPLICATION TO EMPLOYEES
PRODUCING MATERIALS FOR USE IN INTERSTATE HIGHWAYS.  BUT NEITHER THIS
NOR THE COURT'S HOLDING IN ALSTATE PLACES SUCH EMPLOYEES, OR THE
SELLERS AND SALES OF SUCH MATERIALS, "IN COMMERCE" AS A MATTER OF LAW
FOR PURPOSES OF THE CLAYTON AND ROBINSON-PATMAN ACTS. 

COPP'S "IN COMMERCE" ARGUMENT RESTS ESSENTIALLY ON A PURELY FORMAL
"NEXUS" TO COMMERCE:  THE HIGHWAYS ARE INSTRUMENTALITIES OF INTERSTATE
COMMERCE; THEREFORE ANY CONDUCT OF PETITIONERS WITH RESPECT TO AN
INGREDIENT OF A HIGHWAY IS PER SE "IN COMMERCE."  COPP THUS WOULD HAVE
US EXPAND THE CONCEPT OF THE FLOW OF COMMERCE BY INCORPORATING
CATEGORIES OF ACTIVITIES THAT ARE PERCEPTIBLY CONNECTED TO ITS
INSTRUMENTALITIES.  BUT WHATEVER MERIT THIS CATEGORICAL INCLUSION-AND
EXCLUSION APPROACH MAY HAVE WHEN DEALING WITH THE LANGUAGE AND PURPOSES
OF OTHER REGULATORY ENACTMENTS, IT DOES NOT CARRY OVER TO THE CONTEXT
OF THE ROBINSON-PATMAN AND CLAYTON ACTS.  THE CHAIN OF CONNECTION HAS
NO LOGICAL ENDPOINT.  THE UNIVERSE OF ARGUABLY INCLUDED ACTIVITIES
WOULD BE BROAD AND ITS LIMITS NEBULOUS IN THE EXTREME.  SEE ALSTATE
CONSTRUCTION CO. V. DURKIN, SUPRA, AT 17 - 18 (DOUGLAS, J.,
DISSENTING).  MORE IMPORTANTLY, TO THE EXTENT THAT THOSE LIMITS COULD
BE DEFINED AT ALL, THE DEFINITION WOULD IN NO WAY BE ANCHORED IN THE
ECONOMIC REALITIES OF INTERSTATE MARKETS, THE INTENSELY PRACTICAL
CONCERNS THAT UNDERLIE THE PURPOSES OF THE ANTITRUST LAWS.  SEE UNITED
STATES V. YELLOW CAB CO., 332 U.S. 218, 231 (1947). 

IN SHORT, ASSUMING, ARGUENDO, THAT THE FACIALLY NARROW LANGUAGE OF
THE CLAYTON AND ROBINSON-PATMAN ACTS WAS INTENDED TO DENOTE SOMETHING
MORE THAN THE RELATIVELY RESTRICTIVE FLOW-OF-COMMERCE CONCEPT, WE THINK
THE NEXUS APPROACH WOULD BE AN IRRATIONAL WAY TO PROCEED.  THE
JUSTIFICATION FOR AN EXPANSIVE INTERPRETATION OF THE "IN COMMERCE"
LANGUAGE, IF SUCH AN INTERPRETATION IS VIABLE AT ALL, MUST REST ON A
CONGRESSIONAL INTENT THAT THE ACTS REACH ALL PRACTICES, EVEN THOSE OF
LOCAL CHARACTER, HARMFUL TO THE NATIONAL MARKETPLACE.  THIS
JURISDICTION, HOWEVER, WOULD REQUIRE COURTS TO LOOK TO PRACTICAL
CONSEQUENCES, NOT TO APPARENT AND PERHAPS NOMINAL CONNECTIONS BETWEEN
COMMERCE AND ACTIVITIES THAT MAY HAVE NO SIGNIFICANT ECONOMIC EFFECT ON
INTERSTATE MARKETS.  WE HOLD, THEREFORE, THAT SULLY-MILLER'S AND
INDUSTRIAL'S SALES TO INTERSTATE HIGHWAY CONTRACTORS ARE NOT SALES "IN
COMMERCE" AS A MATTER OF LAW WITHIN THE JURISDICTIONAL AMBIT OF
ROBINSON-PATMAN ACT 2(A) AND CLAYTON ACT 3 AND 7. 

        III 

OUT REJECTION OF THE "NEXUS TO COMMERCE" THEORY REQUIRES THAT THE
NINTH CIRCUIT'S JUDGMENT BE REVERSED.  COPP ALSO ADVANCES, SOMEWHAT
OBLIQUELY, A SECOND THEORY TO SUPPORT THAT JUDGMENT.  IT CONTENDS THAT,
DESPITE THE FACIALLY NARROW "IN COMMERCE"  LANGUAGE OF THE ROBINSON
PATMAN AND CLAYTON ACT PROVISIONS, CONGRESS INTENDED THOSE PROVISIONS
TO MANIFEST THE FULL DEGREE OF ITS COMMERCE POWER.  THEREFORE, IT IS
ARGUED, THE LANGUAGE SHOULD NOT BE LIMITED TO THE FLOW-OF-COMMERCE
CONCEPT DEFINED BY THIS COURT AND OTHER COURTS, BUT RATHER SHOULD BE
HELD TO EXTEND, AS DOES 1 OF THE SHERMAN ACT, TO ALL PERSONS AND
ACTIVITIES THAT HAVE A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE.  WE
FIND THIS THEORY EQUALLY UNAVAILING ON THE RECORD HERE. 

        A 

AS TO 2(A) OF THE ROBINSON-PATMAN ACT AT LEAST, THE EXTRAORDINARILY
COMPLEX LEGISLATIVE HISTORY FAILS TO SUPPORT COPP'S ARGUMENT.  WHEN THE
PATMAN BILL WAS PASSED BY THE HOUSE, IT CONTAINED, IN ADDITION TO THE
PRESENT NARROW LANGUAGE OF 2(A), THE FOLLOWING PROVISION: 

"(IT SHALL ALSO BE UNLAWFUL FOR ANY PERSON, WHETHER IN COMMERCE OR
NOT, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE IN PRICE BETWEEN
DIFFERENT PURCHASERS . . . WHERE . . . SUCH DISCRIMINATION MAY
SUBSTANTIALLY LESSEN COMPETITION . . . ."  /14/ THE CONFERENCE
COMMITTEE, HOWEVER, DELETED THIS "EFFECTS ON COMMERCE"  PROVISION,
LEAVING ONLY THE "IN COMMERCE" LANGUAGE OF 2(A).  /15/  WHETHER
CONGRESS TOOK THIS ACTION BECAUSE IT WANTED TO REACH ONLY PRICE
DISCRIMINATION IN INTERSTATE MARKETS OR BECAUSE OF ITS THEN
UNDERSTANDING OF THE REACH OF THE COMMERCE POWER, /16/  ITS ACTION
STRONGLY MILITATES AGAINST A JUDGMENT THAT CONGRESS INTENDED A RESULT
THAT IT EXPRESSLY DECLINED TO ENACT.  MOREOVER, EVEN IF THE LEGISLATIVE
HISTORY WERE AMBIGUOUS, THE COURTS IN NEARLY FOUR DECADES OF LITIGATION
HAVE INTERPRETED THE STATUTE IN A MANNER DIRECTLY CONTRARY TO AN
"EFFECTS ON COMMERCE" APPROACH.  WITH ALMOST PERFECT CONSISTENCY, THE
COURTS OF APPEALS HAVE READ THE LANGUAGE REQUIRING THAT "EITHER OR ANY
OF THE PURCHASES INVOLVED IN SUCH DISCRIMINATION (BE) IN COMMERCE" TO
MEAN THAT 2(A) APPLIES ONLY WHERE "'AT LEAST ONE OF THE TWO
TRANSACTIONS WHICH, WHEN COMPARED, GENERATE A DISCRIMINATION . . .
CROSSES) A STATE LINE.'"  /17/  IN THE FACT OF THIS LONGSTANDING
INTERPRETATION AND THE CONTINUED CONGRESSIONAL SILENCE, THE LEGISLATIVE
HISTORY DOES NOT WARRANT OUR EXTENDING 2(A) BEYOND ITS CLEAR LANGUAGE
TO REACH A MULTITUDE OF LOCAL ACTIVITIES THAT HITHERTO HAVE BEEN LEFT
TO STATE AND LOCAL REGULATION.  SEE FTC V. BUNTE, BROS., 312 U.S. 349
(1941). 

        B 

WITH RESPECT TO 3 AND 7 OF THE CLAYTON ACT, THE SITUATION IS NOT SO
CLEAR.  BOTH PROVISIONS WERE INTENDED TO COMPLEMENT THE SHERMAN ACT AND
TO FACILITATE ACHIEVEMENT OF ITS PURPOSES BY REACHING, IN THEIR
INCIPIENCY, ACTS AND PRACTICES THAT PROMISE, IN THEIR FULL GROWTH, TO
IMPAIR COMPETITION IN INTERSTATE COMMERCE.  E.G., UNITED STATES V. E.I.
DU PONT DE NEMOURS & CO., 353 U.S. 586, 589 (1957); STANDARD FASHION
CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346 (1922).  THE UNITED STATES
ARGUES IN ITS AMICUS BRIEF THAT, GIVEN THIS PURPOSE, THE "IN COMMERCE"
LANGUAGE OF 3 AND 7 SHOULD BE SEEN AS NO MORE THAN A HISTORICAL
ANOMALY.  WHEN THESE SECTIONS WERE ORIGINALLY ENACTED, IT WAS THOUGHT
THAT CONGRESS' COMMERCE CLAUSE POWER REACHED ONLY THOSE SUBJECTS WITHIN
THE FLOW OF COMMERCE, THEN DEFINED RATHER NARROWLY BY THE COURT.  THUS,
IT IS ARGUED, THE "IN COMMERCE" LANGUAGE WAS THOUGHT TO BE COEXTENSIVE
WITH THE REACH OF THE COMMERCE CLAUSE AND TO BRING WITHIN THE AMBIT OF
THE ACT ALL ACTIVITIES OVER WHICH CONGRESS COULD EXERCISE ITS
CONSTITUTIONAL AUTHORITY.  SINCE PASSAGE OF THE ACT, THIS COURT'S
DECISIONS HAVE READ CONGRESS' POWER UNDER THE COMMERCE CLAUSE MORE
EXPANSIVELY, EXTENDING IT BEYOND THE FLOW OF COMMERCE TO ALL ACTIVITIES
HAVING A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE.  SEE MANDEVILLE
ISLAND FARMS V. AMERICAN CRYSTAL SUGAR CO., 334 U.S.,AT 229 - 233.  THE
UNITED STATES CONCLUDES THAT THE SCOPE OF THE CLAYTON ACT, LIKE THAT OF
THE SHERMAN ACT, SHOULD BE HELD TO HAVE EXPANDED CORRESPONDINGLY, BOTH
BECAUSE OF CONGRESS' CLEAR INTENTION TO REACH AS FAR AS IT COULD AND
BECAUSE OF CONGRESS' PURPOSE TO FOSTER COMPETITION IN INTERSTATE
COMMERCE COULD NOT OTHERWISE WHOLLY BE ACHIEVED. 

THIS ARGUMENT FROM THE HISTORY AND PRACTICAL PURPOSES OF THE CLAYTON
ACT IS NEITHER WITHOUT FORCE NOR AT LEAST A MEASURE OF SUPPORT.  /18/
BUT WHETHER IT WOULD JUSTIFY RADICAL EXPANSION OF THE CLAYTON ACT'S
SCOPE BEYOND THAT WHICH THE STATUTORY LANGUAGE DEFINES--EXPANSION,
MOREOVER, BY JUDICIAL DECISION RATHER THAN AMENDATORY LEGISLATION--IS
DOUBTFUL.  IN ANY EVENT, THIS CASE DOES NOT PRESENT AN OCCASION TO
DECIDE THE QUESTION.  EVEN IF THE CLAYTON ACT WERE HELD TO EXTEND TO
ACQUISITIONS AND SALES HAVING SUBSTANTIAL EFFECTS ON COMMERCE, A COURT
CANNOT PRESUME THAT SUCH EFFECTS EXIST.  THE PLAINTIFF MUST ALLEGE AND
PROVE THAT APPARENTLY LOCAL ACTS IN FACT HAVE ADVERSE CONSEQUENCES ON
INTERSTATE MARKETS AND THE INTERSTATE FLOW OF GOODS IN ORDER TO INVOKE
FEDERAL ANTITRUST PROHIBITIONS.  SEE UNITED STATES V. YELLOW CAB CO.,
332 U.S.,AT 230 - 234. 

COPP WAS ALLOWED FULL DISCOVERY AS TO ALL INTERSTATE COMMERCE
ISSUES.  IT RELIED PRIMARILY ON THE NEXUS THEORY REJECTED ABOVE, AND
PRESENTED NO EVIDENCE OF EFFECT ON INTERSTATE COMMERCE.  INSTEAD IT
ARGUED MERELY THAT SUCH EFFECTS COULD BE PRESUMED FROM THE USE OF
ASPHALTIC CONCRETE IN INTERSTATE HIGHWAYS.  THE DISTRICT COURT
CONCLUDED, ON THE BASIS OF THE RECORD BEFORE IT, THAT PETITIONERS'
ALLEGED ANTITRUST VIOLATIONS HAD NO "SUBSTANTIAL IMPACT ON INTERSTATE
COMMERCE."  /19/  THERE MAY BE CIRCUMSTANCES IN WHICH ACTIVITIES, LIKE
THOSE OF SULLY-MILLER AND INDUSTRIAL, WOULD HAVE SUCH EFFECTS ON
COMMERCE.  ON THE RECORD IN THIS CASE, HOWEVER, THE CONCLUSION OF THE
DISTRICT COURT THAT NO SUCH CIRCUMSTANCES EXISTED HERE CANNOT BE
CONSIDERED ERRONEOUS.  THIS BEING SO, THE "EFFECTS ON COMMERCE"
THEORY, EVEN IF LEGALLY CORRECT, MUST FALL FOR WANT OF PROOF. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  RESPONDENTS ARE COLLECTIVELY REFERRED TO HEREINAFTER AS COPP. 

/2/  ALTHOUGH INDUSTRIAL'S NEVADA HOT PLANT IS SUFFICIENTLY CLOSE TO
THE CALIFORNIA AND ARIZONA BORDERS TO ALLOW SALES AND DELIVERIES TO
THOSE STATES, INDUSTRIAL HAS DISAVOWED SUCH SALES, WITHOUT
CONTRADICTION.  APP. 117. 

/3/  15 U.S.C. 15. 

/4/  IN RE WESTERN LIQUID ASPHALT, 303 F.SUPP.  1053 (JPML 1969); IN
RE WESTERN LIQUID ASPHALT, 309 F.SUPP.  157 (JPML 1970).  AS EXPLAINED
INFRA, THE CASE HERE CONCERNS ONLY ASPHALTIC CONCRETE, NOT LIQUID
ASPHALT. 

/5/  1972 CCH TRADE CASES PARA. 74,013. 

THE COURT HELD THE ASPHALT OIL CLAIMS AGAINST THE OIL COMPANIES AND
INDUSTRIAL WITHIN ITS JURISDICTION BECAUSE OF THE INTERSTATE CHARACTER
OF THAT MARKET.  THAT RULING IS NOT BEFORE US. 

/6/  THE COURT RESERVED THE QUESTION OF SUMMARY JUDGMENT IN FAVOR OF
DEFENDANT SULLY-MILLER, HOLDING THAT QUESTION NOT PROPERLY BEFORE IT
UNDER FED. RULE CIV. PROC. 54(B). 

/7/  28 U.S.C. 1254(1).  SEE HAWAII V. STANDARD OIL CO. OF
CALIFORNIA, 405 U.S. 251 (1972). 

/8/  BECAUSE OF OUR LIMITED GRANT AND BECAUSE OF THE NINTH CIRCUIT'S
RESERVATION OF JUDGMENT AS TO SULLY-MILLER, SEE N. 6, SUPRA, UNION OIL
AND INDUSTRIAL ARE THE ONLY DEFENDANTS WHO HAVE PARTICIPATED IN
ARGUMENT HERE. 

/9/  ROBINSON-PATMAN ACT, 2(A), ACT OF JUNE 19, 1936, C. 592, 49
STAT. 1526, 15 U.S.C. 13(A): 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY, WHERE EITHER OR ANY OF THE PURCHASES INVOLVED IN SUCH
DISCRIMINATION ARE IN COMMERCE . . . WHERE THE EFFECT OF SUCH
DISCRIMINATION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION OR TEND TO
CREATE A MONOPOLY IN ANY LINE OF COMMERCE.  . . ." 

CLAYTON ACT, ACT OF OCT. 15, 1914, C. 323, 38 STAT. 730, AS
AMENDED: 


"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
. . . 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." 


"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL .
. . OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE
OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH
ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY.  . . ."     /10/  52 STAT. 1060, AS AMENDED, 29
U.S.C. 201 ET SEQ. 

/11/  E.G., HEART OF ATLANTA MOTEL V. UNITED STATES, 379 U.S. 241, 249
258 (1964). 

/12/  THE JURISDICTIONAL INQUIRY UNDER GENERAL PROHIBITIONS LIKE
THESE ACTS AND 1 OF THE SHERMAN ACT, TURNING AS IT DOES ON THE
CIRCUMSTANCES PRESENTED IN EACH CASE AND REQUIRING A PARTICULARIZED
JUDICIAL DETERMINATION, DIFFERS SIGNIFICANTLY FROM THAT REQUIRED WHEN
CONGRESS ITSELF HAS DEFINED THE SPECIFIC PERSONS AND ACTIVITIES THAT
AFFECT COMMERCE AND THEREFORE REQUIRE FEDERAL REGULATION.  COMPARE
UNITED STATES V. YELLOW CAB CO., 332 U.S. 218, 232 - 233 (1947), WITH,
E.G., PEREZ V. UNITED STATES, 402 U.S. 146 (1971); MARYLAND V. WIRTZ,
392 U.S. 183 (1968); AND KATZENBACH V. MCCLUNG, 379 U.S. 294 (1964). 

/13/  23 U.S.C. 101 ET SEQ. 

/14/  H. R. 8442, 74TH CONG., 2D SESS. (1936) (EMPHASIS ADDED). 

/15/  H. R. CONF. REP. NO. 2951, 74TH CONG., 2D SESS. (1936). 

/16/  COMPARE F. ROWE, PRICE DISCRIMINATION UNDER THE ROBINSON
PATMAN ACT 77 - 83 (1962) WITH NOTE, RESTRAINT OF TRADE--ROBINSON
PATMAN ACT, 86 HARV. L. REV. 765, 770 - 772 (1973). 

/17/  HIRAM WALKER, INC. V. A & S TROPICAL, INC., 407 F.2D, 4, 9
(CA5), CERT. DENIED, 396 U.S. 901 (1969); BELLISTON V. TEXACO, INC.,
455 F.2D 175, 178 (CA10), CERT. DENIED, 408 U.S. 928 (1972). 

NO DECISION OF THIS COURT IMPLIES ANY CONTRARY APPROACH.  IN MOORE V.
MEAD'S FINE BREAD CO., 348 U.S. 115 (1954), THE PLAINTIFF SOLD BREAD
LOCALLY, IN COMPETITION WITH MEAD'S, A FIRM WITH BAKERIES IN SEVERAL
STATES.  MOORE ALLEGED THAT MEAD'S SOLD BREAD IN HIS TOWN AT A PRICE
LOWER THAN THAT WHICH IT CHARGED FOR BREAD DELIVERED FROM ITS IN-STATE
PLANT TO CUSTOMERS IN AN ADJOINING STATE.  THE TENTH CIRCUIT HELD THAT
MEAD'S ACTIVITIES WERE ESSENTIALLY LOCAL, AND THAT IF 2(A) APPLIED TO
THEM IT WOULD EXCEED CONGRESS' COMMERCE POWER.  THE COURT (DOUGLAS,
J.)  UNANIMOUSLY REVERSED, STATING THAT CONGRESS CLEARLY HAS POWER TO
REACH THE LOCAL ACTIVITIES OF A FIRM THAT FINANCES ITS PREDATORY
PRACTICES THROUGH MULTI-STATE OPERATIONS.  THIS LANGUAGE, HOWEVER,
SPOKE TO THE COMMERCE POWER RATHER THAN TO JURISDICTION UNDER 2(A).  IN
FACT, MEAD'S DID HAVE INTERSTATE SALES AND ITS PRICE DISCRIMINATION
THUS FELL WITHIN THE LITERAL LANGUAGE OF THE STATUTE. 

/18/  SEE STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293, 314 - 315
(1949).  0 

/19/  1972 CCH TRADE CASES PARA. 74 - 013, P. 92,208.  COPP MAKES NO
SPECIFIC OBJECTION HERE TO THE DISTRICT COURT'S USE OF SUMMARY JUDGMENT
PROCEDURE, SEE BRIEF FOR RESPONDENTS 11 - 12, NOR TO THE FORM OF THE
JUDGMENT.  MOREOVER, THERE IS NO INDICATION THAT COPP WAS FORECLOSED
FROM PRESENTING ALL AVAILABLE EVIDENCE CONCERNING THE INTERSTATE
COMMERCE ISSUES, AT LEAST AS TO 3 AND 7.  CF. MCBEATH V. INTER-AMERICAN
CITIZENS FOR DECENCY COMM., 374 F.2D 359, 363 (CA5 1967).  IN ANY
EVENT, ASSUMING THAT THE INTERSTATE COMMERCE REQUIREMENTS OF 3 AND 7
ARE PROPERLY DEEMED ISSUES OF SUBJECT-MATTER JURISDICTION, RATHER THAN
SIMPLY NECESSARY ELEMENTS OF THE FEDERAL CLAIMS, CF., E.G., UNITED
STATES V. EMPLOYING PLASTERERS ASSN., 347 U.S. 186 (1954); MANDEVILLE
ISLAND FARMS V. AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219 (1948); 5 J.
MOORE, FEDERAL PRACTICE PARA. 38.36 (2.  - 2), P. 299 (2D ED. 1974),
THERE IS, AS THE DISSENTING OPINION BY MR. JUSTICE DOUGLAS NOTES, AN
IDENTITY BETWEEN THE "JURISDICTIONAL" ISSUES AND CERTAIN ISSUES ON THE
MERITS, AND HENCE, UNDER LAND V. DOLLAR, 330 U.S. 731 (1947), NO
OBJECTION TO RESERVING THE JURISDICTIONAL ISSUES UNTIL A HEARING ON THE
MERITS.  BY THE SAME TOKEN, HOWEVER, THERE IS NO OBJECTION TO USE, IN
APPROPRIATE CASES, OF SUMMARY JUDGMENT PROCEDURE TO DETERMINE WHETHER
THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO THE INTERSTATE COMMERCE
ELEMENTS. 

/20/  HEREAFTER, FOR SIMPLICITY, CITED AS 2(A) OF THE ROBINSON
PATMAN ACT. 

MR. JUSTICE MARSHALL, CONCURRING. 

I JOIN THE JUDGMENT AND OPINION OF THE COURT, WITH ONE
QUALIFICATION.  PART III - B OF THE OPINION CORRECTLY NOTES THAT WE
HAVE NO OCCASION TODAY TO PASS UPON THE APPLICABILITY OF THE CLAYTON
ACT TO ACTIVITIES HAVING A SUBSTANTIAL EFFECT ON COMMERCE ALTHOUGH NOT
"IN COMMERCE," SINCE NO SUCH EFFECTS ARE PRESENT IN THIS CASE.  FOR THE
SAME REASON, WE OUGHT NOT TO CHARACTERIZE THE CONSTRUCTION OFFERED BY
THE UNITED STATES AS A "RADICAL EXPANSION OF THE CLAYTON ACT'S SCOPE." 
AS THE COURT ITSELF SAYS, "THE SITUATION IS NOT SO CLEAR."  UNTIL THE
ISSUE IS PROPERLY PRESENTED BY A CASE REQUIRING ITS RESOLUTION, I WOULD
EXPRESS NO OPINION ON IT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

I SUPPOSE IT WOULD BE CONCEDED THAT IF ONE PERSON OR COMPANY
ACQUIRED ALL THE ASPHALTIC CONCRETE PLANTS IN THE UNITED STATES, THERE
MIGHT WELL BE A VIOLATION OF 2 OF THE SHERMAN ACT, WHICH MAKES UNLAWFUL
A MONOPOLY OF "ANY PART OF THE TRADE OR COMMERCE AMONG THE SEVERAL
STATES."  26 STAT. 209, AS AMENDED, 15 U.S.C. 2.  MOREOVER, EVEN THOUGH
THEIR SALES WERE ALL INTRASTATE, THEY WOULD COME WITHIN THE BAN OF 1 OF
THE SHERMAN ACT, IF THEY SUBSTANTIALLY AFFECTED INTERSTATE COMMERCE. 
FOR IN THE SHERMAN ACT, WE HELD, "CONGRESS WANTED TO GO TO THE UTMOST
EXTENT OF ITS CONSTITUTIONAL POWER IN RESTRAINING TRUST AND MONOPOLY
AGREEMENTS.  . . ."  UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN.,
322 U.S. 533, 558 (1944). 

WHILE THE CLAYTON ACT MODIFIED THE SHERMAN ACT BY RESTRICTING
POSSIBLE APPLICATION OF THE ANTITRUST LAWS TO LABOR UNIONS, /1/  AND BY
EXPANDING THE SCOPE OF THOSE LAWS TO COVER THE AGGREGATION OF ECONOMIC
POWER THROUGH STOCK ACQUISITIONS, /2/  THERE IS NOT A WORD TO SUGGEST
THAT WHEN CONGRESS DEFINED THE TERM "COMMERCE"  IT DESIRED TO CONTRACT
THE SCOPE OF THAT TERM.  /3/  THE LEGISLATIVE HISTORY DOES NOT FURNISH
EVEN A BARE SUGGESTION OR INFERENCE THAT "COMMERCE" UNDER THE CLAYTON
ACT MEANT SOMETHING LESS THAN IT MEANT UNDER THE SHERMAN ACT.  THE
CLAYTON ACT BECAME THE LAW IN 1914; AND PRIOR TO THAT TIME THE COURT
HAD HELD OVER AND OVER AGAIN THAT ACTS OR CONDUCT WHOLLY INTRASTATE
MIGHT BE "IN RESTRAINT OF TRADE OR COMMERCE" AS THAT PHRASE WAS USED IN
THE SHERMAN ACT.  SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 397
(1905); UNITED STATES V. PATTEN, 226 U.S. 525, 541 - 543 (1913).  THESE
HOLDINGS WERE REFLECTED IN THE "AFFECTING COMMERCE"  STANDARD OF THE
SHREVEPORT RATE CASES, HOUSTON & TEXAS R. CO. V. UNITED STATES, 234
U.S. 342, 353 - 355 (1914).  THE PRIMARY DEFINITION OF COMMERCE FOR
CLAYTON ACT PURPOSES, IS "TRADE OR COMMERCE AMONG THE SEVERAL STATES." 
/4/  IN THE YEARS JUST PRECEDING PASSAGE OF THAT ACT, THIS COURT HAD
HELD ON SEVERAL OCCASIONS THAT THE PHRASE "AMONG THE SEVERAL STATES"
EMBRACES ALL COMMERCE SAVE THAT "WHICH IS CONFINED TO A SINGLE STATE
AND DOES NOT AFFECT OTHER STATES."  SECOND EMPLOYERS' LIABILITY CASES,
223 U.S. 1, 46 - 47 (1912) (EMPHASIS ADDED); THE MINNESOTA RATE CASES,
230 U.S. 352, 398 - 399 (1913).  IN APPLYING THE CLAYTON ACT
PROHIBITIONS TO PERSONS AND CORPORATIONS "ENGAGED IN COMMERCE (AMONG
THE SEVERAL STATES)," CONGRESS THUS MAY REASONABLY BE SAID TO HAVE
INTENDED TO REACH PERSONS OR CORPORATIONS WHOSE ACTIVITIES, WHILE
WHOLLY INTRASTATE IN NATURE, AFFECT OTHER STATES THROUGH THEIR EFFECTS
ON INTERSTATE COMMERCE. 

THE HOLDING IN TRANSAMERICA CORP. V. BOARD OF GOVERNORS, 206 F.2D
163, 166 (CA3 1953), THAT CONGRESS, WHEN IT ENACTED THE CLAYTON ACT,
DESIRED "TO EXERCISE ITS POWER UNDER THE COMMERCE CLAUSE OF THE
CONSTITUTION TO THE FULLEST EXTENT," HAS NOTHING TO REBUT IT.  CONGRESS
APPARENTLY WAS NOT AS TIMOROUS AS THE PRESENT COURT IN MOVING AGAINST
CENTERS OF ECONOMIC POWER AND PRACTICES THAT AGGRANDIZE IT.  HERETOFORE
THAT IS THE WAY WE HAVE READ THE CLAYTON ACT:  THAT ACT WAS INTENDED TO
COMPLEMENT THE SHERMAN ACT BY REGULATING IN THEIR INCIPIENCY ACTIONS
WHICH MIGHT IRREPARABLY DAMAGE COMPETITION BEFORE REACHING THE LEVEL OF
ACTUAL RESTRAINT PROSCRIBED BY THE SHERMAN ACT, AND, IN THE ABSENCE OF
SOME INDICATION OF LEGISLATIVE INTENT TO THE CONTRARY, WE SHOULD NOT
LIGHTLY ASSUME THAT CONGRESS INTENDED TO UNDERCUT THAT COMPLEMENTARY
FUNCTION BY CIRCUMSCRIBING THE JURISDICTIONAL REACH OF THE CLAYTON ACT
MORE NARROWLY THAN THAT OF THE SHERMAN ACT.  /5/  SEE UNITED STATES V.
PENN-OLIN CHEMICAL CO., 378 U.S. 158, 170 - 171 (1964); UNITED STATES
V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, 589, 597 (1957);
STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346, 355 - 356
(1922); S. REP. NO. 698, 63RD CONG., 2D SESS., 1 (1914).  AND THAT IS
THE WAY IN WHICH WE ASSUMED THAT THE CELLER-KEFAUVER ACT IN 1950, 64
STAT. 1125, 15 U.S.C. 18, ADDRESSED ITSELF TO THE PROBLEM.  FOR WE SAID
IN BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 315 - 323 (1962),
THAT THE LEGISLATIVE HISTORY SHOWED CONGRESSIONAL CONCERN OVER THE
"DESIRABILITY OF RETAINING 'LOCAL CONTROL' OVER INDUSTRY AND THE
PROTECTION OF SMALL BUSINESSES."  ID., AT 315 - 316.  ONE DRAMATIC WAY
OF LEVELING LOCAL BUSINESS IS PULLING IT INTO A VAST INTERSTATE
BUSINESS REGIME OF THE NATURE ALLEGED IN THIS COMPLAINT. 

        I 

I AGREE WITH THE COURT BELOW THAN JURISDICTION MAY BE SUSTAINED ON
AN "IN COMMERCE"  THEORY.  /6/  CLAYTON ACT 3 AND 7 APPLY TO PERSONS OR
CORPORATIONS "ENGAGED IN COMMERCE"; WE HAVE HELD, IN A LINE OF CASES
ARISING UNDER THE FAIR LABOR STANDARDS ACT (FLSA), 52 STAT. 1060, AS
AMENDED, 29 U.S.C. 201 ET SEQ., THAT PERSONS OR ENTERPRISES ENGAGED IN
BUILDING OR REPAIRING TOLL ROADS, BRIDGES AND CANAL LOCKS ARE "ENGAGED
IN COMMERCE" AND THEREFORE WITHIN THE REACH OF THE COMMERCE POWER, BY
VIRTUE OF THEIR RELATIONSHIP TO INDISPENSABLE INSTRUMENTALITIES OF OUR
SYSTEM OF INTERSTATE COMMERCE.  MITCHELL V. VOLLMER & CO., 349 U.S. 427
(1955); FITZGERALD CO. V. PEDERSEN, 324 U.S. 720 (1945); OVERSTREET V.
NORTH SHORE CORP., 318 U.S. 125 (1943).  IT IS TRUE, AS THE MAJORITY
NOTES, THAT THE FLSA AND THE ANTITRUST LAWS ARE DIFFERENT STATUTUES,
BUT THE CRITICAL DIFFERENCE BETWEEN THE STATUTES ARISES IN AN AREA
WHICH IN NO WAY WEAKENS THE APPLICABILITY OF THE FLSA CASES TO THE
PRESENT INQUIRY. 

IN THE FLSA AND IN MANY OTHER REGULATORY ENACTMENTS, CONGRESS ITSELF
HAS DETERMINED THAT CERTAIN CLASSES OF ACTIVITIES HAVE A SUFFICIENT
IMPACT UPON INTERSTATE COMMERCE TO WARRANT REGULATION OF THE ENTIRE
CLASS, REGARDLESS OF WHETHER AN INDIVIDUAL INSTANCE OF THE ACTIVITY IN
QUESTION CAN BE SHOWN TO BE IN OR TO AFFECT COMMERCE.  SEE GENERALLY
PEREZ V. UNITED STATES, 402 U.S. 146, 152 - 154 (1971); UNITED STATES
V. DARBY, 312 U.S. 100, 119 - 121 (1941).  THE FLSA REPRESENTS SUCH A
CONGRESSIONAL DETERMINATION WITH RESPECT TO THE PAYMENT OF WAGES BELOW
A SPECIFIED LEVEL AND WITH RESPECT TO EMPLOYMENT EXCEEDING A SPECIFIED
LEVEL AND WITH RESPECT TO EMPLOYMENT EXCEEDING A SPECIFIED NUMBER OF
HOURS PER WEEK (UNDER SPECIFIED CONDITIONS).  29 U.S.C. 206, 207.  ONCE
EITHER OF THESE PRACTICES IS FOUND TO EXIST WITH RESPECT TO AN EMPLOYER
OR EMPLOYEE COVERED BY THE FLSA, THE REGULATORY PROVISIONS OF THAT ACT
ARE CALLED INTO PLAY WITHOUT FURTHER INQUIRY INTO THE POSSIBLE EFFECT
OF THE INDIVIDUAL EMPLOYER'S PRACTICES ON INTERSTATE COMMERCE. 

IN THE ANTITRUST LAWS, CONGRESS HAS PROVIDED A DIFFERENT SORT OF
TREATMENT.  THE SHERMAN ACT BROADLY PROHIBITS PRACTICES IN RESTRAINT OF
TRADE OR COMMERCE, AND THE CLAYTON AND ROBINSON-PATMAN ACTS BAR PRICE
DISCRIMINATION, TIE-INS AND CORPORATE STOCK OR ASSETS ACQUISITIONS
WHERE "THE EFFECT OF" SUCH PRACTICES "MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE."  THE
FINDING THAT A PERSON OR CORPORATION IS COVERED BY THESE ACTS DOES NOT
TRIGGER AUTOMATIC APPLICATION OF THE REGULATORY PROHIBITION; INSTEAD, A
COURT MUST GO ON TO MAKE AN INDIVIDUALIZED DETERMINATION OF THE ACTUAL
OR POTENTIAL IMPACT OF THAT PARTICULAR PERSON'S OR CORPORATION'S
ACTIVITIES ON COMPETITION OR ON INTERSTATE COMMERCE.  /7/ 

IT IS IN THIS RESPECT THAT THE ANTITRUST LAWS DIFFER FROM THE FLSA
AND OTHER REGULATORY ENACTMENTS.  THE PRESENT CASE, HOWEVER, DOES NOT
TURN ON THAT DIFFERENCE, BECAUSE IT DOES NOT RAISE THE ISSUE OF WHETHER
THE ACTIONS OF THE NAMED DEFENDANTS HAD A SUFFICIENTLY ADVERSE EFFECT
ON INTERSTATE COMMERCE TO MAKE OUT A VIOLATION OF THE ANTITRUST LAWS;
THAT ISSUE GOES TO THE MERITS OF COPP'S CLAIMS, AND CANNOT PROPERLY BE
REACHED AT THIS STAGE.  INSTEAD, THE CASE AS NOW PRESENTED RAISES THE
THRESHOLD ISSUE OF WHETHER THE NAMED DEFENDANTS ARE WITHIN THE
JURISDICTIONAL REACH OF THE ANTITRUST LAWS, AND OUR INQUIRY ON THAT
POINT DOES NOT DIFFER SIGNIFICANTLY FROM OUR INQUIRY UNDER THE FLSA OR
ANY OTHER REGULATORY STATUTE.  THE FLSA COVERS EMPLOYERS OF EMPLOYEES
"ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE"; THE
CLAYTON ACT AND ROBINSON-PATMAN ACT PROVISIONS AT ISSUE HERE COVER
PERSONS OR CORPORATIONS "ENGAGED IN COMMERCE."  WE HAVE HELD, IN FLSA
AND FEDERAL EMPLOYERS' LIABILITY ACT (FELA) CASES, THAT CONGRESS'  USE
OF THE PHRASE "ENGAGED IN COMMERCE" IS SUFFICIENTLY BROAD TO REACH
EMPLOYEES ENGAGED IN REPAIRING HIGHWAYS OR IN CARRYING BOLTS TO BE USED
FOR BRIDGE REPAIRS, OVERSTREET V. NORTH SHORE CORP., SUPRA; IN LIGHT OF
THE PURPOSES OF THE CLAYTON ACT, I SEE NO REASON WHY THE PHRASE
"ENGAGED IN COMMERCE" AS USED IN THAT ACT SHOULD NOT BE READ EQUALLY
BROADLY, AND SHOULD NOT THEREBY BE DEEMED SUFFICIENT TO REACH
CORPORATIONS ENGAGED IN BUILDING HIGHWAYS OR IN PRODUCING AND SUPPLYING
THE VERY MATERIALS USED IN SUCH CONSTRUCTION.  AS THE COURT OF APPEALS
APTLY NOTED, "(REGULATION OF BUSINESS PRACTICES THROUGH THE ANTITRUST
LAWS . . . MAY JUSTIFIABLY REACH FURTHER THAN SOME OTHER TYPES OF
REGULATION BECAUSE THE ANTITRUST LAWS ARE CONCERNED DIRECTLY WITH
AIDING THE FLOW OF COMMERCE."  487 F.2D 202, 204 (1973). 

        II 

AN ALTERNATIVE GROUND FOR AFFIRMING THE JUDGMENT BELOW, LIKEWISE
REJECTED BY THE MAJORITY, IS THAT THE CLAYTON ACT'S "ENGAGED IN
COMMERCE"  JURISDICTIONAL LANGUAGE IS SUFFICIENTLY BROAD TO ENCOMPASS
CORPORATIONS WHICH ARE NOT IN THE FLOW OF COMMERCE ITSELF BUT WHICH,
THROUGH THEIR ACTIVITIES, AFFECT COMMERCE.  FOR THE REASON STATED IN
THE INTRODUCTORY PORTION OF THIS OPINION, I, FOR ONE, AM PERSUADED THAT
CLAYTON ACT 3 AND 7 ARE AS BROAD AS THE SHERMAN ACT IN THIS RESPECT. 
THE MAJORITY EXPRESSLY DISCLAIMS ANY INTENT TO RESOLVE THAT ISSUE ON
THE GROUND THAT COPP HAS FAILED TO PRODUCE ANY "PROOF" OF SUCH EFFECTS,
AND IS THEREFORE NOT ENTITLED TO CONTINUE THIS SUIT EVEN UNDER A BROAD
READING OF THE JURISDICTIONAL PHRASE; IN MY VIEW, THE BURDEN OF PROOF
WHICH THE COURT THEREBY IMPOSES UPON COPP IS ONE WHICH MAY NOT PROPERLY
BE IMPOSED AT THIS STAGE OF THE LITIGATION.     THE COMPLAINT ALLEGES
THE ACQUISITION BY GULF OF NAMED COMPANIES WITH THE PURPOSE AND EFFECT
OF CREATING A MONOPOLY UNDER THE SHERMAN ACT AND LIKEWISE SUBSTANTIALLY
LESSENING COMPETITION AND CREATING A MONOPOLY IN VIOLATION OF 7 OF THE
CLAYTON ACT.  LIKE ALLEGATIONS ARE MADE RESPECTING CERTAIN ACQUISITIONS
OF UNION OIL.  ALLEGATIONS ARE MADE THAT THE PETITIONERS DIVIDE THE
GEOGRAPHIC AREAS OF COMPETITION FOR THE PURPOSE OF ELIMINATING
COMPETITION.  THE PETITIONERS ARE ALLEGED TO INDULGE IN TIE-IN
PRACTICES, WHEREBY BASE ROCK MATERIAL WOULD BE SOLD SUBSTANTIALLY MORE
CHEAPLY TO CONTRACTORS WHO BUY THEIR ASPHALTIC CONCRETE FROM THE NAMED
PETITIONERS.  THE COMPLAINT ALLEGES THAT THE PETITIONERS HAVE
MAINTAINED HIGH PRICES IN AREAS WHERE THERE IS NO COMPETITION AND THAT
WHERE COMPETITION EXISTS, THEY SELL THEIR PRODUCTS AT ARTIFICALLY LOW
PRICES--BELOW COST--AND THAT THAT IS THE PRACTICE OF PETITIONERS WHERE
THEY COMPETE WITH COPP.  THUS, VIOLATIONS OF THE SHERMAN ACT, CLAYTON
ACT, AND ROBINSON-PATMAN ACT ARE ALLEGED. 

THERE HAS BEEN NO TRIAL.  THE CASE WAS DISPOSED OF ON PLEADINGS AND
AFFIDAVITS.  THE DISTRICT JUDGE ORDERED DISCOVERY SO THAT ALL THE
PARTIES COULD "DEVELOP THE FACTS BEARING UPON THE QUESTION OF WHETHER
THE ALLEGED CONSPIRACY WAS ONE AFFECTING INTERSTATE COMMERCE."  AT THE
END OF THE TIME ALLOTTED FOR DISCOVERY, THE DISTRICT COURT RULED THAT
"THE LOCAL ACTIVITIES OF THE DEFENDANTS WITH REGARD TO ASPHALTIC
CONCRETE DID NOT HAVE A SUBSTANTIAL IMPACT ON INTERSTATE COMMERCE," AND
AS RESPECTS ONE OF THE DEFENDANTS (WHO IS NOT A PARTY IN THE CASE NOW
BEFORE US) GRANTED ITS MOTION FOR SUMMARY JUDGMENT.  /8/ 

THE COURT OF APPEALS SPEAKING THROUGH JUDGE ALFRED T. GOODWIN SAID-
PROPERLY, I THINK: 

"NOR CAN WE ACCEPT DEFENDANTS' ARGUMENT THAT THE PLAINTIFFS MUST
SHOW NOT ONLY THAT THE PARTIES AND SALES ARE 'IN' COMMERCE BUT MUST
SHOW THAT COMPETITION WAS INJURED BEFORE THE COURT HAS JURISDICTION. 
THIS IS THE RESULT OF CONFUSING THE SUBSTANTIVE WITH THE JURISDICTIONAL
REQUIREMENTS OF THE ANTITRUST LAWS.  IT IS NOT NECESSARY FOR A
PLAINTIFF TO PROVE HIS WHOLE CASE IN ORDER TO GIVE THE COURTS
JURISDICTION TO HEAR IT."  487 F.2D,AT 206. 

THE ALLEGATIONS AND THE COMPLAINT PLAINLY GAVE THE DISTRICT COURT
JURISDICTION.  /9/  WHAT A TRIAL ON THE MERITS MIGHT PRODUCE NO ONE
KNOWS.  THE DISTRICT JUDGE SAID:  "I CONCLUDE THAT THE LOCAL ACTIVITIES
OF THE DEFENDANTS WITH REGARD TO ASPHALTIC CONCRETE DID NOT HAVE A
SUBSTANTIAL IMPACT ON INTERSTATE COMMERCE."  THAT COULD NOT POSSIBLY BE
SAID UNTIL AT LEAST THE PLAINTIFFS HAD OFFERED THEIR PROOF; YET, AS THE
COURT OF APPEALS SAID, THE PLAINTIFFS NEED NOT PROVE, ON A MOTION THAT
GOES TO THE JURISDICTION OF THE COURT, THE MERITS OF THEIR CASE IN
ORDER TO OBTAIN AN OPPORTUNITY TO TRY IT.  /10/ 

/1/  38 STAT. 731, 15 U.S.C. 17.  SEE H. R. REP. NO. 627, 63RD
CONG., 2D SESS., 14 - 16 (1914); UNITED STATES V. HUTCHESON, 312 U.S.
219 (1941). 

/2/  15 U.S.C. 18; H. R. REP. NO. 627, SUPRA, N. 1, AT 17.  SEE ALSO
UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S. 158, 170 - 171
(1964); UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586,
597 (1957). 

/3/  THE DEFINITION OF "ANTITRUST LAWS" AS USED IN THE CLAYTON ACT
INCLUDES THE SHERMAN ACT.  15 U.S.C. 12.  THE DEFINITION OF "COMMERCE"
WAS ACTUALLY "BROADENED SO AS TO INCLUDE TRADE AND COMMERCE BETWEEN ANY
INSULAR POSSESSIONS OR OTHER PLACES UNDER THE JURISDICTION OF THE
UNITED STATES, WHICH AT PRESENT DO NOT COME WITHIN THE SCOPE OF THE
SHERMAN ANTITRUST LAW OR OTHER LAWS RELATING TO TRUSTS."  H. R. REP.
NO. 627, SUPRA, N. 1, AT 7. 

THE SHERMAN ACT DECLARES ILLEGAL EVERY CONTRACT, COMBINATION, OR
CONSPIRACY "IN RESTRAINT OF TRADE OR COMMERCE AMONG THE SEVERAL STATES
. . . ."  15 U.S.C. 1.  IT ALSO MAKES A MISDEMEANOR A MONOPOLY OF "ANY
PART OF THE TRADE OR COMMERCE AMONG THE SEVERAL STATES . . . ."  15
U.S.C. 2. 

/4/  "COMMERCE" AS USED IN THE CLAYTON ACT IS DEFINED IN 1 AS
FOLLOWS: 

"'COMMERCE', AS USED HERIN, MEANS TRADE OR COMMERCE AMONG THE
SEVERAL STATES AND WITH FOREIGN NATIONS, OR BETWEEN THE DISTRICT OF
COLUMBIA OR ANY TERRITORY OF THE UNITED STATES AND ANY STATE,
TERRITORY, OR FOREIGN NATION, OR BETWEEN ANY INSULAR POSSESSIONS OR
OTHER PLACES UNDER THE JURISDICTION OF THE UNITED STATES, OR BETWEEN
ANY SUCH POSSESSION OR PLACE AND ANY STATE OR TERRITORY OF THE UNITED
STATES OR THE DISTRICT OF COLUMBIA OR ANY FOREIGN NATION, OR WITHIN THE
DISTRICT OF COLUMBIA OR ANY TERRITORY OR ANY INSULAR POSSESSION OR
OTHER PLACE UNDER THE JURISDICTION OF THE UNITED STATES."  15 U.S.C.
12. 

/5/  INDEED, WE WOULD HAVE TO SIT AS A COMMITTEE OF REVISION OVER
CONGRESS, SHAPING THE LAW TO FIT OUR PREJUDICES AGAINST ANTITRUST
REGULATIONS, TO HOLD THAT "IN COMMERCE" AS USED IN THE CLAYTON ACT WAS
INTENDED TO PROVIDE LESS COMPREHENSIVE COVERAGE THAN THE LANGUAGE OF
THE SHERMAN ACT.  PRIOR TO PASSAGE OF THE CLAYTON ACT, LABOR UNION
PRACTICES HAD BEEN HELD BY THIS COURT TO AFFECT COMMERCE AND THUS TO
FALL WITHIN THE REACH OF THE SHERMAN ACT, DESPITE THE FACT THAT THE
UNION ACTIVITIES COULD NOT BE REGARDED AS BEING IN THE FLOW OF
COMMERCE.  LOEWE V. LAWLOR, 208 U.S. 274, 300 - 301 (1908).  SEE ALSO
TEAMSTERS LOCAL 167 V. UNITED STATES, 291 U.S. 293, 297 (1934); APEX
HOSIERY CO. V. LEADER, 310 U.S. 469 (1940); UNITED STATES V. EMPLOYING
PLASTERERS ASSN., 347 U.S. 186, 189 (1954).  IF THE COURT IS RIGHT
TODAY IN SAYING THAT "IN COMMERCE" AS USED IN THE CLAYTON ACT IS TO BE
READ MORE RESTRICTIVELY THAN THE SHERMAN ACT, THEN THOSE WHO DRAFTED
THE CLAYTON ACT (INCLUDING LOUIS D. BRANDEIS) TO PROTECT LABOR WERE
NEEDLESSLY CONCERNED--NO EXPRESS EXEMPTION OF LABOR WOULD HAVE BEEN
NECESSARY, SINCE THE "IN COMMERCE" LANGUAGE OF THE CLAYTON ACT (IF
NARROWLY READ) WOULD NOT HAVE SUPPORTED JUDICIAL ATTEMPTS TO REACH
LABOR ACTIVITIES ON AN "AFFECTING COMMERCE" THEORY.  THE DRAFTERS
OBVIOUSLY THOUGHT OTHERWISE. 

/6/  THE DECISION OF THE COURT OF APPEALS ON THE SHERMAN ACT ISSUE,
WHICH REMAINS INTACT BY VIRTUE OF OUR LIMITED GRANT OF CERTIORARI, HELD
THAT PETITIONERS AND THEIR ALLEGED ACTIVITIES WERE SUFFICIENTLY "IN
COMMERCE" TO SUPPORT SHERMAN ACT JURISDICTION.  487 F.2D 202, 205
(1973).  THE MAJORITY NOW HOLDS, HOWEVER, THAT PETITIONERS AND THEIR
ALLEGED ACTIVITIES WERE NOT SUFFICIENTLY "IN COMMERCE" TO SUPPORT
CLAYTON AND ROBINSON-PATMAN ACT COVERAGE.  IN LIGHT OF THE LATTER
HOLDING, IT IS DIFFICULT TO IMAGINE THE RECEPTION THAT COPP'S SHERMAN
ACT CLAIMS WILL RECEIVE ON REMAND. 

/7/  OF COURSE, IN A LIMITED RANGE OF SHERMAN ACT CASES, THIS COURT
HAS HELD THAT CERTAIN PRACTICES ARE PER SE VIOLATIONS OF THE ANTITRUST
LAWS; THAT IS TO SAY, THESE PRACTICES ARE CONCLUSIVELY PRESUMED TO BE
ILLEGAL WITHOUT THE NEED FOR ANY PARTICULARIZED INQUIRY INTO THEIR
EFFECTS.  SEE GENERALLY WHITE MOTOR CO. V. UNITED STATES, 372 U.S. 253,
259 - 262 (1963), AND CASES COLLECTED THEREIN.  THESE CASES MAY BE
VIEWED AS LIMITED EXCEPTIONS TO THE INDIVIDUALIZED APPROACH DESCRIBED
IN THE TEXT ABOVE. 

/8/  FEDERAL RULE CIV. PROC. 56 "DEALS WITH THE MERITS" OF A CLAIM
AND IF IN FAVOR OF THE DEFENDANT IS "IN BAR AND NOT IN ABATEMENT," 6 J.
MOORE, FEDERAL PRACTICE PARA. 56.03, P. 2051 (2D ED. 1974).  LACK OF
JURISDICTION OF THE COURT IS A MATTER IN ABATEMENT AND THUS IS NOT
USUALLY APPROPRIATE FOR A SUMMARY JUDGMENT, WHICH IS NOT A SUBSTITUTE
FOR A MOTION TO DISMISS FOR WANT OF JURISDICTION.  ID., AT 2052 -
2053. 

ON THE GENERAL PROPRIETY OF DISCOVERY ORDERS OF THIS SORT, SEE 4
ID., PARA. 26.56(6); BUT "(THERE ARE CASES . . . IN WHICH THE
JURISDICTIONAL QUESTIONS ARE SO INTERTWINED UITH THE MERITS THAT THE
COURT MIGHT PREFER TO RESERVE JUDGMENT ON THE JURISDICTION UNTIL AFTER
DISCOVERY HAS BEEN COMPLETED."  ID., AT 26 - 191.  SEE ALSO THE
DISCUSSION IN N. 10, INFRA. 

/9/  THE ISSUE OF WHETHER THERE IS SUBJECT-MATTER JURISDICTION
RAISES THE QUESTION WHETHER THE COMPLAINT, ON ITS FACE, ASSERTS A
NONFRIVOLOUS CLAIM "ARISING UNDER"  FEDERAL LAW.  BAKER V. CARR, 369
U.S. 186, 199 - 200 (1962); BELL V. HOOD, 327 U.S. 678, 682 - 683
(1946).  IF SUCH A CLAIM IS STATED, THE DISTRICT COURT IS THEN
EMPOWERED TO ASSUME JURISDICTION AND TO DETERMINE WHETHER THE CLAIM IS
GOOD OR BAD, ON THE BASIS OF A MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM OR CAUSE OF ACTION.  ROMERO V. INTERNATIONAL TERMINAL OPERATING
CO., 358 U.S. 354, 359 (1959); MONTANA-DAKOTA UTILITIES CO. V.
NORTHWESTERN PUBLIC SERVICE CO., 341 U.S. 246, 249 (1951).  SUCH A
DISMISSAL IS ON THE MERITS, NOT FOR WANT OF JURISDICTIONAL.  BELL V.
HOOD, SUPRA. 

/10/  IT IS SOMETIMES SAID THAT WHERE THE DISTRICT COURT'S
JURISDICTION IS CHALLENGED, THAT COURT HAS THE POWER, EITHER ON ITS OWN
MOTION OR ON MOTION OF A PARTY, TO INQUIRE INTO THE FACTS AS THEY EXIST
FOR PURPOSES OF RESOLVING THE JURISDICTIONAL ISSUE.  LAND V. DOLLAR,
330 U.S. 731, 735 N. 4 (1947), AND CASES CITED; LOCAL 336, AMERICAN
FEDERATION OF MUSICIANS V. BONATZ, 475 F.2D 433, 437 (CA3 1973).  ON
THE OTHER HAND, IF THE JURISDICTIONAL ISSUE IS CLOSELY INTERTWINED WITH
OR DEPENDENT ON THE MERITS OF THE CASE, THE PREFERRED PROCEDURE IS TO
PROCEED TO A DETERMINATION OF THE CASE ON THE MERITS.  MCBEATH V. INTER
AMERICAN CITIZENS FOR DECENCY COMM., 374 F.2D 359, 362 - 363 (CA5),
CERT. DENIED, 389 U.S. 896 (1967); JACONSKI V. AVISUN CORP., 359 F.2D
931, 935 - 936 (CA3 1966). 

THE CASES CITED FOR THE PROPOSITION THAT A DISTRICT COURT MAY
INQUIRE INTO JURISDICTIONAL FACTS ON A MOTION TO DISMISS FOR WANT OF
JURISDICTION ARE CASES IN WHICH THE JURISDICTIONAL ISSUE WAS WHETHER
THE PLAINTIFF MET THE AMOUNT-IN-CONTROVERSY REQUIREMENT.  THAT
JURISDICTIONAL ISSUE IS SUFFICIENTLY INDEPENDENT OF THE MERITS OF THE
CLAIM TO WARRANT INDEPENDENT EXAMINATION, IF CHALLENGED.  WHERE THE
JURISDICTIONAL ISSUE IS MORE CLOSELY LINKED TO THE MERITS, DISPOSITION
OF THE JURISDICTIONAL ISSUE ON MOTION BECOMES INAPPROPRIATE.  THUS IN
LAND V. DOLLAR, WHERE THE COMPLAINT ALLEGED THAT MEMBERS OF THE UNITED
STATES MARITIME COMMISSION WERE UNLAWFULLT HOLDING SHARES OF DOLLAR
STOCK UNDER A CLAIM THAT THE STOCK BELONGED TO THE UNITED STATES, THE
DISTRICT COURT DISMISSED ON THE GROUND THAT THE SUIT WAS AGAINST THE
UNITED STATES.  IN AFFIRMING A REVERSAL OF THAT DISMISSAL, THE COURT
SAID:  "(ALTHOUGH AS A GENERAL RULE THE DISTRICT COURT WOULD HAVE
AUTHORITY TO CONSIDER QUESTIONS OF JURISDICTIONAL ON THE BASIS OF
AFFIDAVITS AS WELL AS THE PLEADINGS, THIS IS THE TYPE OF CASE WHERE THE
QUESTION OF JURISDICTION IS DEPENDENT ON DECISION OF THE MERITS."  330
U.S.,AT 735.  THIS WAS TRUE BECAUSE IF THE PLAINTIFFS PREVAILED ON
EITHER OF THEIR THEORIES ON THE MERITS (THAT THE COMMISSION WAS WITHOUT
AUTHORITY TO ACQUIRE THE SHARES, OR THAT THE CONTRACT WAS SIMPLY A
PLEDGE OF THE SHARES RATHER THAN AN OUTRIGHT TRANSFER), THEN THEY WOULD
ALSO PREVAIL ON THE JURISDICTIONAL ISSUE.  AND IN THE MCBEATH CASE,
SUPRA, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED A PRETRIAL
DISMISSAL OF A SHERMAN ACT CLAIM ON GROUNDS OF LACK OF JURISDICTION
(FOR FAILURE TO SHOW AN EFFECT ON INTERSTATE COMMERCE).  RELYING ON
LAND V. DOLLAR, IT HELD THAT THE ISSUE OF EFFECTS ON INTERSTATE
COMMERCE WAS SO INTERTWINED WITH THE MERITS OF THE CLAIM THAT IT WAS
ERROR FOR THE DISTRICT COURT TO DISMISS WITHOUT GIVING THE PLAINTIFF A
FULL CHANCE TO PROVE HIS CASE ON THE MERITS. 

IN CASES SUCH AS UNITED STATES V. EMPLOYING PLASTERERS ASSN., 347
U.S. 186 (1954); MANDEVILLE ISLAND FARMS V. AMERICAN CRYSTAL SUGAR CO.,
334 U.S. 219 (1948); AND UNITED STATES V. YELLOW CAB CO., 332 U.S. 218
(1947), THIS COURT HAS REVIEWED "INTERSTATE COMMERCE" ISSUES IN THE
CONTEXT OF DISMISSALS OF ANTITRUST SUITS PRIOR TO TRIAL ON THE MERITS. 
THOSE DISMISSALS, HOWEVER, WERE BASED, NOT UPON MOTIONS FOR SUMMARY
JUDGMENT OR FOR DISMISSAL FOR WANT OF JURISDICTION, BUT RATHER UPON
MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM.  IN SUCH CASES, OF
COURSE, THE ALLEGATIONS OF THE COMPLAINT MUST BE TAKEN AS TRUE.  ID.,
AT 224.  IN THE CASE NOW BEFORE US, THE DISTRICT COURT CLEARLY WENT
BEYOND THE FACE OF THE COMPLAINT AND REQUIRED RESPONDENTS TO PRODUCE
PROOF OF INTERSTATE EFFECTS. 

MOSES LASKY ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE RICHARD HAAS AND GEORGE A. CUMMING, JR. 

MARTIN M. SHAPERO ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS JACK CORINBLIT. 

SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL KAUPER, WILLIAM
L. PATTON, AND CARL D. LAWSON FILED A BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE. 
..END :



AMERICAN RADIO ASSN. V. MOBILE S.S. ASSN., 419 U.S. 215 


       AMERICAN RADIO ASSN., AFL - CIO, ET AL. V. MOBILE STEAMSHIP

           ASSN., INC., ET AL.

        CERTIORARI TO THE SUPREME COURT OF ALABAMA

        NO. 73 - 748.  ARGUED OCTOBER 21, 1974--DECIDED DECEMBER
17,

1974; 291 ALA. 201, 279 SO.2D 467, AFFIRMED. 


    RESPONDENTS, AS ASSOCIATION REPRESENTING STEVEDORING COMPANIES,

  AND A SHIPPER, SOUGHT INJUNCTIVE RELIEF IN AN ALABAMA STATE COURT

  AGAINST PICKETING OF A FOREIGN-FLAG SHIP BY PETITIONER MARITIME

  UNIONS WHICH WERE PROTESTING AS SUBSTANDARD THE WAGES PAID THE

  FOREIGN CREWMEN WHO MANNED THE SHIP.  THE TRIAL COURT ISSUED A

  TEMPORARY INJUNCTION, AND THE ALABAMA SUPREME COURT AFFIRMED. 

  PETITIONERS CONTEND THAT THE STATE COURTS WERE WITHOUT

  JURISDICTION TO GRANT RELIEF, AND THAT THE ISSUANCE OF AN

  INJUNCTION INTERFERED WITH THEIR FREE SPEECH RIGHTS.  HELD: 

1.  THE JURISDICTION OF THE ALABAMA COURTS WERE NOT PRE-EMPTED

  BY THE NATIONAL LABOR RELATIONS ACT (NLRA).  WINDWARD SHIPPING V.

  AMERICAN RADIO ASSN., 415 U.S. 104.  PP. 219 - 228. 

     (A) EVEN IF THERE IS A DISPUTE BETWEEN PETITIONERS AND

  RESPONDENTS INDEPENDENT OF PETITIONERS' DISPUTE WITH FOREIGN-FLAG

  SHIPS, IT IS SUBJECT TO STATE COURT DISPOSITION UNLESS IT

  SATISFIES THE JURISDICTIONAL REQUIREMENTS OF THE NLRA.  P. 221. 

     (B) THE FACT THAT THE STATE COURT'S JURISDICTION IS INVOKED BY

  STEVEDORES AND SHIPPERS, RATHER THAN BY THE FOREIGN-SHIP OWNERS

  AS IN WINDWARD, SUPRA, DOES NOT CONVERT INTO "COMMERCE" WITHIN

THE MEANING OF THE NLRA'S JURISDICTIONAL REQUIREMENTS, ACTIVITIES

  THAT PLAINLY WERE NOT SUCH IN WINDWARD.  PP. 221 - 225. 

     (C) NEITHER THE SHIPPER SEEKING TO SHIP HIS PRODUCTS, THE

  STEVEDORES WHO CONTRACTED TO UNLOAD THE FOREIGN-FLAG VESSEL'S

  CARGO, NOR THE LONGSHOREMEN EMPLOYED TO DO THE UNLOADING, WERE,

  FOR THE PURPOSES OF JURISDICTION OF THE NATIONAL LABOR RELATIONS

  BOARD OVER A DISPUTE DIRECTLY AFFECTING THE MARITIME OPERATIONS

  OF FOREIGN-FLAG VESSELS, "ENGAGED IN OR AFFECTING COMMERCE"

  WITHIN THE PURVIEW OF THE NLRA, AND THEREFORE PETITIONERS'

  PICKETING DID NOT EVEN "ARGUABLY" CONSTITUTE AN UNFAIR LABOR

  PRACTICE UNDER 8(B)(4) OF THE ACT, THE SECONDARY BOYCOTT

  PROVISION.  PP. 225 - 228. 

     2.  THE ALABAMA COURTS' ACTION IN ENJOINING THE PICKETING

  VIOLATED NO RIGHT CONFERRED UPON PETITIONERS BY THE FIRST AND

  FOURTEENTH AMENDMENTS, BECAUSE THAT ACTION IS WELL WITHIN THAT

  "BROAD FIELD IN WHICH A STATE, IN ENFORCING SOME PUBLIC POLICY,

  WHETHER OF ITS CRIMINAL OR ITS CIVIL LAW, AND WHETHER ANNOUNCED

 BY ITS LEGISLATURE OR ITS COURTS, COULD CONSTITUTIONALLY ENJOIN

  PEACEFUL PICKETING AIMED AT PREVENTING EFFECTUATION OF THAT

  POLICY," TEAMSTERS UNION V. VOGT, INC., 354 U.S. 284, 293.  PP.

  228 - 232. 

     (A) SINCE THE PICKETING HERE WAS FOR A PROHIBITED PURPOSE, IT

  IS NOT ENTITLED TO PROTECTION ON THE GROUND THAT THE PLACE WHERE

  IT OCCURRED CONSTITUTED A PUBLIC FORUM FOR PRESENTATION OF LAWFUL

  COMMUNICATIONS.  FOOD EMPLOYEES V. LOGAN VALLEY PLAZA, 391 U.S.

  308, DISTINGUISHED.  P. 230. 

     (B) THE INJUNCTION IS SUPPORTED BY A "VALID PUBLIC POLICY." 
IN

THE CONTEXT IN WHICH THE ALABAMA SUPREME COURT STATED THE PUBLIC

  POLICY TO BE THE PREVENTION OF "WRONGFUL INTERFERENCE" WITH

  RESPONDENTS' BUSINESSES, THAT TERM OBVIOUSLY REFERS TO THIRD

  PARTIES' EFFORTS TO INDUCE EMPLOYEES TO CEASE PERFORMING SERVICES

  ESSENTIAL TO THE CONDUCT OF THEIR EMPLOYER'S BUSINESS,

  THIRD-PARTY PARTICIPATION BEING CRITICAL TO PICKETING BEING

  CATEGORIZED AS "WRONGFUL INTERFERENCE."  PP. 230 - 231. 

     (C) PETITIONERS' CONTENTION THAT THE RECORD FAILS TO SUPPORT

  THE CONCLUSION THAT THERE WAS A SUBSTANTIAL QUESTION WHETHER THE

  PICKETING CONSTITUTED "WRONGFUL INTERFERENCE," IS WITHOUT MERIT,

  SINCE THE QUESTION WHETHER EVIDENCE IS SUFFICIENT TO MAKE OUT A

 CAUSE OF ACTION CREATED BY STATE LAW AND TRIED IN THE STATE

  COURTS IS A MATTER FOR DECISION BY THOSE COURTS.  PP. 231 - 232. 

     REHNQUIST, J., DELIEVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C J., AND WHITE, BLACKMUN, AND POWELL, JJ., JOINED. 

  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 232.  STEWART,

  J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND

  MARSHALL, JJ., JOINED, POST, P. 234. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE THE SIX MARITIME UNIONS WHICH APPEARED BEFORE THIS
COURT AS RESPONDENTS IN WINDWARD SHIPPING V. AMERICAN RADIO ASSN., 415
U.S. 104 (1974).  WE GRANTED THEIR PETITION FOR CERTIORARI TO THE
SUPREME COURT OF ALABAMA, 415 U.S. 947, IN ORDER TO REVIEW THEIR
CONTENTIONS THAT THIS CASE WAS DISTINGUISHABLE FROM WINDWARD ON THE PRE
EMPTION ISSUE, AND THAT THE TEMPORARY INJUNCTION UPHELD BY THAT COURT
HAD INFRINGED RIGHTS GUARANTEED TO THEM UNDER THE FIRST AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUION.  /1/ 

AS IN WINDWARD, THIS CASE ARISES FROM PICKETING DESIGNED TO
PUBLICIZE THE ADVERSE IMPACT ON AMERICAN SEAMEN OF THE OPERATIONS OF
FOREIGN-FLAG CARRIERS WHICH EMPLOY FOREIGN CREWMEN AT WAGES
SUBSTANTIALLY BELOW THOSE PAID TO AMERICAN SEAMEN.  AS IN WINDWARD, THE
PICKETING OCCURRED DURING 1971, BUT IN THIS CASE IT TOOK PLACE IN
MOBILE, ALABAMA, AND WAS DIRECTED AGAINST THE AQUA GLORY, A SHIP OF
LIBERIAN REGISTRY.  THE PICKETS DISPLAYED THE SAME SIGNS AND
DISTRIBUTED THE SAME LITERATURE AS THEY DID IN WINDWARD, /2/  AND THEY
WERE SUBJECT TO THE SAME INSTRUCTIONS. 

THE PICKETING IN EACH CASE ALSO HAD SIMILAR RESULTS.  IN WINDWARD,
WE OBSERVED:  "THE PICKETING, ALTHOUGH NEITHER OBSTRUCTIVE NOR VIOLENT,
WAS NOT WITHOUT EFFECT.  LONGSHOREMEN AND OTHER PORT WORKERS REFUSED TO
CROSS THE PICKET LINES TO LOAD AND UNLOAD PETITIONERS' VESSELS."  415
U.S.,AT 108.  HERE, THE SUPREME COURT OF ALABAMA, IN AFFIRMING A
TEMPORARY INJUNCTION ISSUED BY THE ALABAMA CIRCUIT COURT, SAID OF
PETITIONERS' ACTIVITIES IN MOBILE: 

     "POSTING THE PICKETS, AS WAS DONE ON THE DOCK ADJACENT TO THE

AQUA GLORY, BROUGHT ABOUT AN IMMEDIATE REFUSAL BY THE STEVEDORE

  WORKERS OF THE LOCALS OF INTERNATIONAL LONGSHOREMEN'S ASSOCIATION

  TO CROSS THE PICKET LINE OF THE APPELLANT UNIONS.  ABOUT EIGHTY

  PERCENT OF THE CARGO SHIPS THAT ENTER THE PORT OF MOBILE, SAID

  UNDER A FOREIGN-FLAG AND ARE MANNED BY ALIEN CREWS."  /3/

        I 

IT IS APPARENT FROM THE FACTS ALREADY STATED THAT THE HOUSTON
PICKETING IN WINDWARD AND THE MOBILE PICKETING HERE WERE FOR ALL
PRACTICAL PURPOSES IDENTICAL.  PETITIONERS'  BRIEF REFERS TO WINDWARD
AS "INVOLVING THE UNION PETITIONERS IN THE IDENTICAL NATIONAL PICKETING
DISPUTE AS PART OF THE COMMITTEE'S PROGRAM.  . . ."  BRIEF FOR
PETITIONERS 7 N. 1.  BUT PETITIONERS CONTEND THAT SINCE THE STATE COURT
PLAINTIFFS IN THIS CASE ARE NOT THE FOREIGN OWNERS OF A PICKETED SHIP,
AS THEY WERE IN WINDWARD, BUT ARE INSTEAD STEVEDORING COMPANIES WHICH
SEEK TO SERVICE THE SHIP /4/  AND A SHIPPER WHO WISHES TO HAVE HIS
CROPS LOADED ON IT, THE QUESTION OF PRE-EMPTION OF STATE COURT
JURISDICTION BY THE NATIONAL LABOR RELATIONS ACT SHOULD BE ANSWERED
DIFFERENTLY THAN IT WAS IN WINDWARD.  /5/  PETITIONERS REASON THAT
RESPONDENTS COULD HAVE CHARGED THEM WITH AN UNFAIR LABOR PRACTICE UNDER
THE SECONDARY BOYCOTT PROVISION OF THE NATIONAL LABOR RELATIONS ACT,
8(B)(4), 49 STAT. 452, AS AMENDED, 29 U.S.C. 158(B)(4), AND THAT SINCE
PETITIONERS' ACTIVITIES WERE ARGUABLY PROHIBITED UNDER THAT SECTION,
THE RESPONDENTS' EXCLUSIVE REMEDY WAS TO SEEK RELIEF FROM THE NATIONAL
LABOR RELATIONS BOARD.  CF. SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236 (1959). 

PETITIONERS' POSITION IN THIS RESPECT CONTRASTS MARKEDLY WITH THEIR
POSTURE IN THE WINDWARD LITIGATION.  THERE PETITIONERS, AS RESPONDENTS
IN THIS COURT, URGED THAT "PEACEFUL AND TRUTHFUL PRIMARY PICKETING, NON
OBSTRUCTIVE AND WITHOUT TRESPASS UPON PRIVATE PROPERTY, BY AMERICAN
WORKERS PROTESTING SUBSTANDARD WAGES AND BENEFITS PAID," ARE ACTIVITIES
"ACTUALLY PROTECTED BY THE ACT."  BRIEF FOR RESPONDENTS IN NO. 72 -
1061, O.T. 1973, P. 15.  THEY ALSO URGED THAT "THE AMERICAN SEAMEN'S
ACTIVITIES AT BAR CONSTITUTES TYPICAL LAWFUL PRIMARY PICKETING,
SANCTIONED AND PROTECTED BY THE ACT, GARNER (V. TEAMSTERS UNION, 346
U.S. 485 (1953),) AND (LONGSHOREMEN'S V.)  ARIADNE (CO.), 397 U.S. (195
(1970)), AT 202."  BRIEF FOR RESPONDENTS IN NO. 72 - 1061, O.T. 1973,
P. 16.  PETITIONERS APPARENTLY URGED THE SAME ARGUMENTS IN THE TEXAS
COURT OF CIVIL APPEALS, WHOSE JUDGMENT WE REVIEWED IN WINDWARD, BECAUSE
THAT COURT STATED: 

"(APPELLEES' PICKETING CAREFULLY REMAINED WITHIN THE GUIDELINES FOR
PERMISSIBLE PICKETING ON THE PREMISES OF A SECONDARY EMPLOYER
PROMULGATED IN SAILOR'S UNION OF THE PACIFIC, 92 N.L.R.B. 547 AND
ADOPTED IN LOCAL 761, INTER.  UNION OF ELEC., RADIO AND MACH. WKRS.  V.
NLRB, 366 U.S. 667 . . . (1961)."  /6/ 

PETITIONERS, HAVING FAILED TO PERSUADE THIS COURT IN WINDWARD THAT
THEIR HOUSTON PICKETING WAS PROTECTED UNDER 7 OF THE NATIONAL LABOR
RELATIONS ACT, 29 U.S.C. 157, NOW CONTEND THAT THEIR MOBILE PICKETING
WAS AT LEAST ARGUABLY A SECONDARY BOYCOTT PROHIBITED BY 8(B)(4)(B) OF
THE ACT, 29 U.S.C. 158(B)(4)(B).  THEY WOULD HAVE US HOLD NOT ONLY THAT
THERE IS AN INDEPENDENT CONTROVERSY BETWEEN PETITIONER UNIONS,
REPRESENTING AMERICAN SEAMEN, AND THE CONTRACTING STEVEDORES
REPRESENTED BY RESPONDENT, BUT ALSO THAT THIS INDEPENDENT DISPUTE IS
SUBJECT TO THE JURISDICTION OF THE BOARD. 

ACCEPTANCE OF PETITIONERS' ARGUMENT WOULD RESULT IN A RULE WHEREBY A
STATE COURT HAD JURISDICTION OVER A COMPLAINT FOR INJUNCTION FILED BY A
FOREIGN-SHIP OWNER CLAIMING THAT PICKETING ACTIVITIES OF A UNION WERE
INTERFERING WITH HIS BUSINESS RELATIONSHIPS WITH A CONTRACT STEVEDORE,
BUT THE SAME COURT WOULD HAVE NO JURISDICTION WHERE THE CONTRACT
STEVEDORE SOUGHT AN INJUNCTION ON PRECISELY THE SAME GROUNDS.  THE
ANOMALY OF SUCH A RESULT IS REASON ENOUGH TO QUESTION IT, BUT WE
BELIEVE THAT THERE IS A MORE FUNDAMENTAL FLAW IN PETITIONERS' CLAIM. 

EVEN IF THERE IS A DISPUTE BETWEEN PETITIONERS AND RESPONDENTS WHICH
IS, IN SOME SEMANTIC SENSE, INDEPENDENT OF PETITIONERS' DISPUTE WITH
FOREIGN-FLAG, SHIPS, THAT DISPUTE IS SUBJECT TO STATE COURT DISPOSITION
UNLESS IT SATISFIES THE JURISDICTIONAL REQUIREMENTS OF THE NLRA.  IN
THIS REGARD, WE NOTE THAT A NECESSARY PREDICATE FOR A FINDING BY THE
BOARD OF AN UNFAIR LABOR PRACTICE UNDER 8(B)(4)(I) IS THAT THE
INDIVIDUAL INDUCED OR ENCOURAGED MUST BE EMPLOYED BY A "PERSON ENGAGED
IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE."  SIMILARLY, A
NECESSARY PREDICATE FOR FINDING AN UNFAIR LABOR PRACTICE UNDER
8(B)(4)(II) IS THAT THE PERSON THREATENED, COERCED, OR RESTRAINED MUST
HAVE BEEN ENGAGED IN "COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE,"
AND A NECESSARY PREDICATE FOR BOARD JURISDICTION OF UNFAIR LABOR
PRACTICES UNDER 10(A) OF THE ACT, 29 U.S.C. 160(A) IS THAT THEY BE
PRACTICES "AFFECTING COMMERCE." 

PETITIONERS INTERPRET WINDWARD AS HAVING DONE NOTHING MORE THAN
ESTABLISH THAT THE MARITIME OPERATIONS OF FOREIGN SHIPS ARE NOT "IN
COMMERCE."  THEY ASSUME THAT WINDWARD SAID NOTHING ABOUT EITHER THE
BUSINESS ACTIVITIES OF PERSONS SEEKING TO DEAL WITH SUCH SHIPS, OR
ABOUT WHETHER, FOR THESE PURPOSES, THOSE ACTIVITIES ARE "IN COMMERCE"
OR "AFFECTING COMMERCE."  PETITIONERS THEREFORE ARE ABLE TO STATE THAT
THE REQUIREMENTS OF 8(B)(4) AND 10 ARE SATISFIED BECAUSE 

     "(UNQUESTIONABLY, THE ASSOCIATION, CONSTITUTING STEVEDORING

  COMPANIES EMPLOYING LONGSHOREMEN TO LOAD AND DISCHARGE VESSELS AT

  THE PORT OF MOBILE, ALABAMA, IS AN 'EMPLOYER' ENGAGED IN

  'COMMERCE' UNDER THE ACT, AND EQUALLY UNQUESTIONABLY, RESPONDENT

  MALONE, DELIVERING HIS SOYBEANS TO THE DOCK ELEVATOR, IS A

  'PERSON'  ENGAGED IN 'COMMERCE,' UNDER THE ACT."  BRIEF FOR

  PETITIONERS 15 - 16. 

WE DO NOT BELIEVE, HOWEVER, THAT THE LINE OF CASES /7/  COMMENCING WITH
BENZ AND CULMINATING IN WINDWARD PERMIT SUCH A BIFURCATED VIEW OF THE
EFFECTS OF A SINGLE GROUP OF PICKETS AT A SINGLE SITE. 

IN WINDWARD WE STATED THAT OUR TASK WAS TO DETERMINE "WHETHER THE
ACTIVITIES . . . COMPLAINED OF WERE ACTIVITIES 'AFFECTING COMMERCE'
WITHIN THE MEANING . . . OF THE NATIONAL LABOR RELATIONS ACT,"  /8/
AND WE CONCLUDED THAT THEY WERE NOT.  415 U.S.,AT 105 - 106.  WE
RECOGNIZED THAT THE PICKETING ACTIVITIES DID NOT INVOLVE THE
INESCAPABLE INTRUSION INTO THE AFFAIRS OF FOREIGN SHIPS THAT WAS
PRESENT IN BENZ AND INCRES, BUT WE WENT ON TO SAY THAT THE LATTER CASES
"DO NOT PURPORT TO FULLY DELINEATE THE THRESHOLD OF INTERFERENCE WITH
THE MARITIME OPERATIONS OF FOREIGN VESSELS WHICH MAKES THE LMRA
INAPPLICABLE."  415 U.S.,AT 114.  WE FURTHER OBSERVED: 

"AT THE VERY LEAST, THE PICKETS MUST HAVE HOPED TO EXERT SUFFICIENT
PRESSURE SO THAT FOREIGN VESSELS WOULD BE FORCED TO RAISE THEIR
OPERATING COSTS TO LEVELS COMPARABLE TO THOSE OF AMERICAN SHIPPERS,
EITHER BECAUSE OF LOST CARGO RESULTING FROM THE LONGSHOREMEN'S REFUSAL
TO LOAD OR UNLOAD THE VESSELS, OR BECAUSE OF WAGE INCREASES AWARDED AS
A VIRTUAL SELF-IMPOSED TARIFF TO REGAIN ENTRY TO AMERICAN PORTS.  SUCH
A LARGE-SCALE INCREASE IN OPERATING COSTS WOULD HAVE MORE THAN A
NEGLIGIBLE IMPACT ON THE 'MARITIME OPERATIONS' OF THESE FOREIGN SHIPS,
AND THE EFFECT WOULD BE BY NO MEANS LIMITED TO COSTS INC,RRED WHILE IN
AMERICAN PORTS.  UNLIKE ARIADNE, THE PROTEST HERE COULD NOT BE
ACCOMMODATED BY A WAGE DECISION ON THE PART OF THE SHIPOWNERS WHICH
WOULD AFFECT ONLY WAGES PAID WITHIN THIS COUNTRY."  /9/  (EMPHASIS
SUPPLIED.  

WHILE WE THUS SPOKE IN WINDWARD OF THE EFFECT OF THE HOUSTON PICKETS
ON THE MARITIME OPERATIONS OF FOREIGN SHIPS, THE QUOTED PASSAGE SHOWS
THAT WE FULLY RECOGNIZED THAT THIS EFFECT WOULD NOT BE PRODUCED SOLELY
BY THE PICKETS AND THE MESSAGES CARRIED BY THEIR SIGNS.  IT WOULD BE
PRODUCED IN LARGE PART BY THE REFUSAL OF AMERICAN WORKMEN EMPLOYED BY
DOMESTIC STEVEDORING COMPANIES TO CROSS THE PICKET LINE IN ORDER TO
LOAD AND UNLOAD CARGO COMING TO OR FROM THE FOREIGN SHIPS.  SINCE
WINDWARD HELD TH T THE HOUSTON PICKETING WAS NOT IN OR AFFECTING
COMMERCE, IT WOULD BE WHOLLY INCONSISTENT TO NOW HOLD, INSOFAR AS
CONCERNS BOARD JURISDICTION OVER A COMPLAINT BY RESPONDENTS, THAT THE
EMPLOYER OF THE LONGSHOREMEN WHO HONORED THE PICKET LINE, OR THE
SHIPPER WHOSE GOODS THEY DID NOT HANDLE, WAS IN OR AFFECTING COMMERCE. 

THAT WE FOUND IT UNNECESSARY TO EXPRESSLY STATE THIS CONCLUSION IN
WINDWARD SUGGESTS NOT THAT THE POINT IS AN UNDECIDED ONE, BUT THAT SUCH
A CONCLUSION INEVITABLY FLOWS FROM THE FACT THAT THE RESPONSE OF THE
EMPLOYEES OF THE AMERICAN STEVEDORES WAS A CRUCIAL PART OF THE
MECHANISM BY WHICH THE MARITIME OPERATIONS OF THE FOREIGN SHIPS WERE TO
BE AFFECTED.  THE EXACTION OF THE "SELF-IMPOSED TARIFF TO REGAIN ENTRY
TO AMERICAN PORTS" DOES NOT DEPEND UPON AMERICAN SHIPPERS HEEDING THE
MESSAGE ON THE PICKET SIGNS AND DECLINING TO SHIP THEIR CARGOES IN
FOREIGN BOTTOMS.  THE SAME PRESSURE UPON THE FOREIGN-FLAG OWNERS WILL
RESULT IF LONGSHOREMEN REFUSE TO LOAD OR UNLOAD THEIR SHIPS.  THE
EFFECT OF THE PICKETING ON THE OPERATIONS OF THE STEVEDORES AND
SHIPPERS, AND THENCE ON THESE MARITIME OPERATIONS, IS PRECISELY THE
SAME WHETHER IT BE COMPLAINED OF BY THE FOREIGN-SHIP OWNERS OR BY
PERSONS SEEKING TO SERVICE AND DEAL WITH THE SHIPS.  THE FACT THAT THE
JURISDICTION OF THE STATE COURTS IN THIS CASE IS INVOKED BY STEVEDORES
AND SHIPPERS DOES NOT CONVERT INTO "COMMERCE"  ACTIVITIES WHICH PLAINLY
WERE NOT SUCH IN WINDWARD.  /10/ 

OUR DISSENTING BRETHEN CONTEND THAT OUR DISPOSITION IS INCONSISTENT
WITH THE COURT'S DECISION IN HATTIESBURG BUILDING & TRADES COUNCIL V.
BROOME, 377 U.S. 126 (1964), AND WITH THE BOARD'S DECISION IN SAILORS'
UNION OF THE PACIFIC (MOORE DRY DOCK), 92 N.L.R.B. 547 (1950). 
HATTIESBURG DEALT WITH THE QUITE DIFFERENT QUESTION OF APPLYING THE
BOARD'S OWN LIMITATION OF ITS STATUTORY JURISDICTION TO THOSE CASES
WHICH HAVE "A SUBSTANTIAL EFFECT ON COMMERCE."  23 N.L.R.B.ANN.REP.  7
(1958).  THE BOARD HAD PROMULGATED A SERIES OF ADMINISTRATIVELY
ESTABLISHED STANDARDS, IN EFFECT CEDING TO STATE COURTS AND AGENCIES
DISPUTES INVOLVING ENTITIES WHICH ADMITTEDLY "AFFECTED COMMERCE," BUT
WHOSE VOLUME OF INTERSTATE BUSINESS WAS NOT "SUFFICIENTLY SUBSTANTIAL
TO WARRANT THE EXERCISE OF (BOARD) JURISDICTION."  29 U.S.C. 164(C). 
THE STANDARDS PROVIDED THAT THEY COULD BE "SATISFIED BY REFERENCE TO
THE BUSINESS OPERATIONS OF EITHER THE PRIMARY OR THE SECONDARY
EMPLOYER."  HATTIESBURG, SUPRA, AT 126.  BECAUSE OF THIS PROVISION, THE
BOARD HAD NOT IN FACT CEDED IN JURISDICTION OVER THE PARTICULAR DISPUTE
THAT HAD BEEN PRESENTED TO THE MISSISSIPPI COURTS.  IN HATTIESBURG THIS
COURT DID NO MORE THAN ENFORCE THE NATURAL CONSEQUENCE OF THIS FACT BY
HOLDING THAT GARMON DEPRIVED THE STATE COURTS OF JURISDICTION.  WE FIND
NOTHING IN THAT HOLDING INCONSISTENT WITH WHAT WE SAY OR HOLD HERE. 
CERTAINLY HATTIESBURG DOES NOT, AS MR. JUSTICE STEWART'S DISSENT WOULD
HAVE IT, STAND FOR THE PROPOSITION THAT A SECONDARY EMPLOYER'S DOMESTIC
BUSINESS ACTIVITIES MAY BE THE BASIS FOR BOARD JURISDICTION WHERE THE
PRIMARY DISPUTE IS BEYOND ITS STATUTORY AUTHORITY OVER UNFAIR LABOR
PRACTICES "AFFECTING COMMERCE."  29 U.S.C. 160(A). 

THAT DISSENT'S TREATMENT OF MOORE DRY DOCK, SUPRA, READS A GREAT
DEAL MORE INTO THAT 1950 BOARD DECISION THAN ITS LANGUAGE AND ANALYSIS
CAN SUPPORT.  THE DECISION ITSELF CONTAINS NO REFERENCE WHATEVER TO THE
JURISDICTION OF THE BOARD OVER THE PRIMARY EMPLOYER, THE FOREIGN-FLAG
VESSEL PHOPHO, AND NEITHER THE DECISION NOR THE TRIAL EXAMINER'S REPORT
CONSIDERED THE JURISDICTIONAL CHALLENGE PRESENTLY CONFRONTING THIS
COURT.  THE TRIAL EXAMINER'S REPORT, FROM WHICH THAT DISSENTING OPINION
QUOTES, DID STATE THAT THE BOARD, IN AN APPARENTLY UNREPORTED
DETERMINATION, HAD PREVIOUSLY DISMISSED A PETITION FOR ELECTION ABOARD
THE PHOPHO, 92 N.L.R.B. 547, 560 - 561.  THE REPORT LATER ACKNOWLEDGED
THAT THE BOARD HAD "LEFT SOMEWHAT OBSCURE THE PRECISE LEGAL BASIS" OF
ITS JURISDICTIONAL RULING, A COMMENT WHICH WAS EVOKED BY THE CONTENTION
THAT BECAUSE THE PRIMARY EMPLOYER WAS "CLEARLY ENGAGED IN COMMERCE,"
THE RULING MUST HAVE BEEN BASED ON A DIFFERENT JURISDICTIONAL DEFECT. 
ID., AT 568.  THIS COURT IN BENZ, 353 U.S. 138, NOT ONLY NOTED THAT
MOORE DRY DOCK INVOLVED A DIFFERENT SITUATION, BUT ALSO RATHER
POINTEDLY STATED:  "WE NEED ONLY SAY THAT THESE CASES ARE INAPPOSITE,
WITHOUT, OF COURSE, INTIMATING ANY VIEW AS TO THEIR RESULT."  353
U.S.,AT 143 N. 5.  A 1950 BOARD PRECEDENT SUCH AS THIS CAN SCARCELY BE
REGARDED AS CONTROLLING WHEN IT IS CLEARLY CONTRARY TO THE THRUST OF
THIS COURT'S BENZ-WINDWARD LINE OF CASES. 

PETITIONERS RELY ON TEAMSTERS UNION V. N.Y., N.H. & H.R. CO., 350
U.S. 155 (1956), AND PLUMBERS' UNION V. DOOR COUNTY, 359 U.S. 354
(1959), FOR THE PROPOSITION THAT EVEN THOUGH THE BOARD MAY NOT HAVE
JURISDICTION OVER THE PRIMARY LABOR RELATIONS OF A PARTY WHICH IS
EXCLUDED FROM THE ACT'S DEFINITION OF "EMPLOYER,"  /11/  IT IS
NONETHELESS COMPETENT TO CONSIDER SECONDARY DISPUTES INVOLVING SUCH A
PARTY.  IN TEAMSTERS UNION, SUPRA, A RAILROAD WAS HELD TO BE BARRED
FROM SEEKING RELIEF IN THE STATE COURTS AGAINST A SECONDARY BOYCOTT. 
THE COURT HELD THAT WHILE THE RAILROAD WAS NOT A STATUTORY "EMPLOYER,"
IT WAS NONETHELESS A "PERSON" PROTECTED BY 8(B)(4).  A SIMILAR RESULT
WAS REACHED IN DOOR COUNTY, SUPRA, IN WHICH A NON-"EMPLOYER"  COUNTY
SOUGHT STATE COURT RELIEF, NOT WITH RESPECT TO ACTIVITIES OF ITS OWN
EMPLOYEES, BUT WITH RESPECT TO A CLAIMED SECONDARY BOYCOTT ARISING FROM
PICKETING AGAINST A NONUNION SUBCONTRACTOR WORKING ON AN ADDITION TO
THE COUNTY COURTHOUSE.  WHILE THESE CASES ESTABLISH THE PROPOSITION
THAT AN ENTITY WHICH IS NOT WITHIN THE ACT'S DEFINITION OF "EMPLOYER"
MAY NONETHELESS BE A "PERSON" FOR PURPOSES OF PROTECTION AGAINST
SECONDARY BOYCOTTS, NEITHER THEY NOR ANY OTHER CASE DECIDED BY THIS
COURT SUGGESTS THAT THE BOARD HAS JURISDICTION OF 8(B)(4) COMPLAINTS IF
THE ALLEGED UNFAIR LABOR PRACTICE DOES NOT AFFECT COMMERCE.  INDEED, IN
DOOR COUNTY, SUPRA, THE COURT POINTEDLY INQUIRED WHETHER THE OUT-OF
STATE ORIGIN OF CONSTRUCTION MATERIALS WAS SUFFICIENT TO ESTABLISH THE
JURISDICTIONALLY REQUIRED EFFECT ON INTERSTATE COMMERCE.  359 U.S.,AT
356. 

HERE, NEITHER THE FARMER SEEKING TO SHIP HIS SOYBEANS, THE
STEVEDORES WHO CONTRACTED TO UNLOAD THE CARGO OF THE FOREIGN-FLAG
VESSEL, NOR THE LONGSHOREMEN WHOM THE STEVEDORES EMPLOYED TO CARRY OUT
THIS UNDERTAKING, WERE FOR THESE PURPOSES ENGAGED IN OR AFFECTING
COMMERCE WITHIN THE PURVIEW OF THE NATIONAL LABOR RELATIONS ACT. 
THEREFORE THE PETITIONERS' PICKETING DID NOT EVEN "ARGUABLY" VIOLATE
8(B)(4)(B) OF THAT ACT.  SINCE CONGRESS DID NOT INTEND TO STRAIN
THROUGH THE FILAMENT OF THE NLRA PICKETING ACTIVITIES WHICH SO DIRECTLY
AFFECT THE MARITIME OPERATIONS OF FOREIGN VESSELS, WE HOLD THAT THE
ALABAMA COURTS WERE COMPETENT TO APPLY THEIR OWN LAW IN RESOLVING THE
DISPUTE BETWEEN PETITIONERS AND RESPONDENTS UNLESS, AS PETITIONERS
CLAIM, SUCH A RESOLUTION VIOLATED PETITIONERS' RIGHTS UNDER THE FIRST
AND FOURTEENTH AMENDMENTS. 

        II 

AFTER CONCLUDING THAT THE STATE COURTS HAD JURISDICTION, THE SUPREME
COURT OF ALABAMA CONSIDERED WHETHER THE PICKETING WAS PROTECTED BY THE
FIRST AND FOURTEENTH AMENDMENTS.  RELYING ON TEAMSTERS UNION V. VOGT,
INC., 354 U.S. 284 (1957), IT CONCLUDED THAT IF THE PICKETING
COMPROMISED VALID PUBLIC POLICIES, IT WAS NOT PROTECTED BY ITS PUTATIVE
PURPOSE OF CONVEYING INFORMATION.  THE COURT THEREFORE THOUGHT THAT THE
MATTER NARROWED TO WHETHER OR NOT THE PICKETING HAD A PURPOSE OR
OBJECTIVE TO "WRONGFULLY INTERFERE" WITH RESPONDENTS' BUSINESSES. 
RECOGNIZING THAT THE UNIONS WERE APPEALING A TEMPORARY INJUNCTION,
ISSUED AS A MATTER OF EQUITABLE DISCRETION TO PRESERVE THE STATUS QUO
PENDING FINAL RESOLUTION OF THE DISPUTE, THE COURT INQUIRED ONLY
WHETHER THERE WAS EVIDENCE OF A PROHIBITED PURPOSE SUFFICIENT TO
ESTABLISH THAT THE TRIAL JUDGE HAD NOT ABUSED THE "WIDE DISCRETION" HE
POSSESSES IN SUCH MATTERS.  THE COURT FOUND SUCH EVIDENCE IN THE
TESTIMONY OF A LOCAL UNION OFFICIAL CHARGED WITH CARRYING OUT THE
PICKETING.  HE HAD EXPRESSED THE HOPE THAT UNION MEN WOULD NOT CROSS
THE LINES, THAT THE PORT WOULD BECOME CLUTTERED WITH FOREIGN SHIPS
UNABLE TO LOAD OR UNLOAD, AND THAT THE DOCKS WOULD BE SHUT DOWN.  ON
THIS BASIS THE COURT CONCLUDED THAT A SUBSTANTIAL QUESTION WAS
PRESENTED AS TO WHETHER THE PICKETING HAD A PROHIBITED PURPOSE, AND
THAT THE TRIAL JUDGE HAD NOT ABUSED HIS DISCRETION. 

PETITIONERS REPEAT THEIR FIRST AND FOURTEENTH AMENDMENT ARGUMENTS
BEFORE THIS COURT.  THEY CONTEND THAT THE PICKETING WAS EXPRESSIVE
CONDUCT INFORMING THE PUBLIC OF THE INJURIES THEY SUFFER AT THE HANDS
OF FOREIGN SHIPS, AND "IMPLORING THE PUBLIC" TO "'BUY AMERICAN' OR
'SHIP AMERICAN.'"  BRIEF FOR PETITIONERS 21.  THIS CONDUCT, THEY
CONTEND, CONSTITUTES "THE LAWFUL EXERCISE OF PROTECTED FUNDAMENTAL
RIGHTS OF FREE SPEECH," AND IS THUS NOT SUBJECT TO INJUNCTION. 

WE THINK THIS LINE OF ARGUMENT IS FORECLOSED BY OUR HOLDING IN VOGT,
SUPRA.  THERE THE COURT, IN AN OPINION BY MR. JUSTICE FRANKFURTER,
REVIEWED THE CASES IN WHICH WE HAD DEALT WITH DISPUTES INVOLVING THE
INTERESTS OF PICKETS IN DISSEMINATING THEIR MESSAGE AND OF THE STATE IN
PROTECTING VARIOUS COMPETING ECONOMIC AND SOCIAL INTERESTS.  VOGT
ENDORSED THE VIEW THAT PICKETING INVOLVES MORE THAN AN EXPRESSION OF
IDEAS, 354 U.S.,AT 289, AND REFERRED TO OUR "GROWING AWARENESS THAT
THESE CASES INVOLVED NOT SO MUCH QUESTIONS OF FREE SPEECH AS REVIEW OF
THE BALANCE STRUCK BY A STATE BETWEEN PICKETING THAT INVOLVED MORE THAN
'PUBLICITY' AND COMPETING INTERESTS OF STATE POLICY."  ID., AT 290. 
THE COURT CONCLUDED THAT OUR CASES "ESTABLISHED A BROAD FIELD IN WHICH
A STATE, IN ENFORCING SOME PUBLIC POLICY, WHETHER OF ITS CRIMINAL OR
ITS CIVIL LAW, ANS WHETHER ANNOUNCED BY ITS LEGISLATURE OR ITS COURTS,
COULD CONSTITUTIONALLY ENJOIN PEACEFUL PICKETING AIMED AT PREVENTING
EFFECTUATION OF THAT POLICY."  ID., AT 203.  WE BELIEVE THAT IN THE
CASE NOW BEFORE US ALABAMA'S INTERFERENCE WITH PETITIONERS' PICKETING
IS WELL WITHIN THAT "BROAD FIELD." 

PETITONERS SEEK TO ESCAPE FROM VOGT IN THREE WAYS.  FIRST, THEY
CONTEND THAT THIS CASE IS SQUARELY CONTROLLED BY FOOD EMPLOYEES V.
LOGAN VALLEY PLAZA, 391 U.S. 308 (1968).  IN THAT CASE, CLAIM
PETITIONERS, PICKETING "IDENTICAL AS AT BAR, (DESIGNED) TO PEACEFULLY
AND TRUTHFULLY PUBLICIZE SUBSTANDARD WAGES AND CONCOMITANTLY REQUEST
THE PUBLIC NOT TO PATRONIZE THE PICKETED ENTITY," WAS HELD TO BE
PROTECTED.  BRIEF FOR PETITIONERS 20.  IN REJECTING THIS CONTENTION, WE
NEED ONLY POINT OUT THAT LOGAN VALLEY CONCERNED THE LOCATION OF
PICKETING, NOT ITS PURPOSE; INDEED, IT WAS ON EXACTLY THIS BASIS THAT
THE LOGAN VALLEY COURT DISTINGUISHED THE LINE OF CASES CULMINATING IN
VOGT.  391 U.S.,AT 314.  LOGAN VALLEY ESTABLISHED ONLY THAT IN SOME
CIRCUMSTANCES PRIVATE BUSINESS PROPERTY CAN BE SO THOROUGHLY CLOTHED IN
THE ATTRIBUTES OF PUBLIC PROPERTY THAT IT MAY NOT BE COMPLETELY CLOSED
AS A PUBLIC FORUM TO THOSE WHO WISH TO PRESENT OTHERWISE LAWFUL
COMMUNICATIONS. 

PETITIONERS' SECOND ARGUMENT IS THAT THE INJUNCTION HERE IS NOT
SUPPORTED BY A "VALID PUBLIC POLICY," AS REQUIRED BY VOGT.  THEY POINT
OUT THAT WHILE THE ALABAMA SUPREME COURT STATED THE PUBLIC POLICY TO BE
THE PREVENTION OF "WRONGFUL INTERFERENCE" WITH RESPONDENTS' BUSINESSES,
IT DID NOT EXPRESSLY DEFINE THAT TERM.  WE, HOWEVER, THINK IT OBVIOUS
THAT IN THIS CONTEXT "WRONGFUL INTERFERENCE"  REFERS TO EFFORTS BY
THIRD PARTIES TO INDUCE EMPLOYEES TO CEASE PERFORMING SERVICES
ESSENTIAL TO THE CONDUCT OF THEIR EMPLOYER'S BUSINESS.  THAT THIRD
PARTY PARTICIPATION IS CRITICAL TO PICKETING BEING CATEGORIZED AS
"WRONGFUL INTERFERENCE"  IS CLEAR FROM PENNINGTON V. BIRMINGHAM
BASEBALL CLUB, 277 ALA. 336, 170 SO.2D 410 (1964), A CASE CITED BY THE
ALABAMA SUPREME COURT IN ITS OPINION IN THIS CASE. 

IN PENNINGTON THE SUPREME COURT OF ALABAMA INDICATED THAT THE STATE
POLICY AGAINST "WRONGFUL INTERFERENCE" IS QUITE ANALOGOUS TO THE
FEDERAL POLICY OF PROHIBITING SECONDARY BOYCOTTS, AND IS BASED ON
SIMILAR CONSIDERATIONS.  THE STATE'S POLICY ALSO APPEARS TO BE BASED ON
THE STATE INTEREST IN PRESERVING ITS ECONOMY AGAINST THE STAGNATION
THAT COULD BE PRODUCED BY PICKETS' DISRUPTION OF THE BUSINESSES OF
EMPLOYERS WITH WHOM THEY HAVE NO PRIMARY DISPUTE.  AT MOBILE THE
PICKETING THREATENED TO ELIMINATE THE 70% TO 80% OF THE STEVEDORES'
BUSINESS THAT DEPENDED ON FOREIGN SHIPPING, AND TO CAUSE SERIOUS LOSSES
FOR FARMERS WHOSE AGRICULTURAL CROPS REQUIRED IMMEDIATE HARVESTING AND
SHIPPING.  /12/  UNDER VOGT, SUPRA, THE STATE MAY PREFER THESE
INTERESTS OVER PETITIONERS' INTERESTS IN CONVEYING THEIR "SHIP
AMERICAN" MESSAGE THROUGH THE SPEECH-PLUS DEVICE OF DOCKSIDE
PICKETING. 

PETITIONERS' FINAL CONTENTION IS THAT THE RECORD FAILS TO SUPPORT
THE CONCLUSION THAT A SUBSTANTIAL QUESTION EXISTED AS TO WHETHER THE
PICKETING CONSTITUTED "WRONGFUL INTERFERENCE" UNDER ALABAMA LAW.  THE
QUESTION OF WHETHER EVIDENCE IS SUFFICIENT TO MAKE OUT A CAUSE OF
ACTION CREATED BY STATE LAW AND TRIED IN THE STATE COURTS IS A MATTER
FOR DECISION BY THOSE COURTS.  INSOFAR AS PETITIONERS' ARGUMENT ON THIS
SCORE MAY BE READ TO SUGGEST THAT THE EVIDENCE BEFORE THE ALABAMA COURT
WOULD NOT SUPPORT A FINDING THAT THEIR ACTIVITIES WERE SUCH AS COULD BE
ENJOINED UNDER VOGT, SUPRA, WE REJECT IT.  PETITIONERS SEEM TO ARGUE
THAT THE ALABAMA COURTS WERE BOUND BY THE STATEMENTS OF PURPOSE
APPEARING ON THE PICKETS' SIGNS AND LITERATURE, AND THAT IN ANY EVENT
ONE LOCAL OFFICIAL'S STATEMENTS OF HIS HOPES AND EXPECTATIONS AS TO THE
PICKETING'S EFFECT COULD NOT OVERRIDE THOSE STATED PURPOSES.  THIS
ARGUMENT IGNORES THE WIDE LATITUDE OPEN TO TRIERS OF FACT TO MAKE
FACTUAL DETERMINATIONS ON THE BASIS OF RATIONAL INFERENCES WHICH ARISE
FROM THE NATURE, LOCATION, AND EFFECT OF PICKETING.  SEE VOGT, SUPRA,
AT 286, 295; PLUMBERS UNION V. GRAHAM, 345 U.S. 192, 197 - 200 (1953). 

CONCLUDING THAT THE JURISDICTION OF THE ALABAMA COURTS IN THIS CASE
WAS NOT PRE-EMPTED BY THE NATIONAL LABOR RELATIONS ACT, AND THAT THE
ACTION OF THOSE COURTS IN ENJOINING THE PICKETING AT MOBILE VIOLATED NO
RIGHT CONFERRED UPON PETITIONERS BY THE FIRST AND FOURTEENTH
AMENDMENTS, WE AFFIRM THE JUDGMENT OF THE SUPREME COURT OF ALABAMA. 

              AFFIRMED. 

/1/  THE DECISION OF THE SUPREME COURT OF ALABAMA IS REPORTED AT 291
ALA. 201, 279 SO.2D 467 (1973).  BECAUSE THAT COURT VALIDATED ONLY A
TEMPORARY INJUNCTION, AND REMANDED FOR TRIAL ON THE MERITS, AN ISSUE
HAS BEEN RAISED AS TO OUR JURISDICTION TO CONSIDER THIS CASE.  WE THINK
THAT CONSTRUCTION LABORERS V. CURRY, 371 U.S. 542 (1963), IS CONCLUSIVE
OF THE FINALITY OF THE JUDGMENT BELOW FOR THE PURPOSES OF 28 U.S.C.
1257. 

/2/  THE PICKETS CARRIED SIGNS WHICH READ: 

"ATTENTION TO THE PUBLIC, THE WAGES AND BENEFITS PAID ABOARD THE
VESSEL SS (NAME OF VESSEL) ARE SUBSTANDARD TO THOSE OF THE AMERICAN
SEAMAN.  THIS RESULTS IN EXTREME DAMAGE TO OUR WAGE STANDARD AND THE
LOSS OF OUR JOBS.  PLEASE DO NOT PATRONIZE (THIS VESSEL).  HELP THE
AMERICN SEAMEN.  WE HAVE NO DISPUTE WITH OTHER VESSELS AT THIS SITE." 
(PRINTED NAMES OF SIX UNIONS.)  APP. 6A 

THEY DISTRIBUTED LITERATURE WHICH STATED: 

"TO THE PUBLIC--AMERICAN SEAMEN HAVE LOST APPROXIMATELY 50% OF THEIR
JOBS IN THE PAST FEW YEARS TO FOREIGN FLAG SHIPS EMPLOYING SEAMEN AT A
FRACTION OF THE WAGES OF AMERICAN SEAMEN. 

"AMERICAN DOLLARS FLOWING TO THESE FOREIGN SHIPOUNERS OPERATING
SHIPS AT WAGES AND BENEFITS SUBSTANTIAL TO AMERICAN SEAMEN, ARE HURTING
OUR BALANCE OF PAYMENTS IN ADDITION TO HURTING OUR ECONOMY BY THE LOSS
OF JOBS. 

"A STRONG AMERICAN MERCHANT MARINE IS ESSENTIAL TO OUR NATIONAL
DEFENSE.  THE FEWER AMERICAN FLAG SHIPS THERE ARE, THE WEAKER OUT
POSITION WILL BE IN A PERIOD OF NATIONAL EMERGENCY. 

#PLEASE PATRONIZE AMERICAN FLAG VESSELS, SAVE OUR JOBS, HELP OUR
ECONOMY AND SUPPORT OUR NATIONAL DEFENSE BY HELPING TO CREATE A STRONG
AMERICAN MERCHANT MARINE. 

"OUR DISPUTE HERE IS LIMITED TO THE VESSEL PICKETED AT THIS SITE,
THE S.S. . . ."  APP. 7A. 

(PRINTED NAMES OF THE SIX UNIONS.) 

/3/  291 ALA.,AT 205, 279 SO.2D,AT 470. 

/4/  THE STEVEDORING COMPANIES APPEAR HERE THROUGH THEIR BARGAINING
REPRESENTATIVE, MOBILE STEAMSHIP ASSOCIATION, INC. 

/5/  PETITIONERS ALSO SUGGEST THAT THE RESULT SHOULD BE DIFFERENT
BECAUSE WINDWARD DID NOT INVOLVE VESSELS WHICH, WHILE FLYING FOREIGN
FLAGS, WERE AMERICAN OWNED.  PETITIONERS DO NOT, HOWEVER, DIRECT OUR
ATTENTION TO ANY EVIDENCE IN THE RECORD AS TO THE OWNERSHIP OF THE AQUA
GLORY.  IN ANY EVENT, WE THINK THIS FACTOR IRRELEVANT, IN LIGHT OF
MCCULLOCH V. SOCIEDAD NACIONAL, 372 U.S. 10, 19 (1963). 

/6/  WINDWARD SHIPPING V. AMERICAN RADIO ASSN., 482 S.W.2D 675, 678
(1972). 

/7/  BENZ V. COMPANIA NAVIERA HIDALGO, 353 U.S. 138 (1957); MCCULLOCH
V. SOCIEDAD NACIONAL, 372 U.S. 10 (1963); INCRES S.S. CO. V. MARITIME
WORKERS, 372 U.S. 24 (1963). 

/8/  THE RELEVANT DEFINITIONS APPEAR IN 29 U.S.C. 152 (6) AND (7); 

"(6) THE TERM 'COMMERCE' MEANS TRADE, TRAFFIC, COMMERCE,
TRANSPORTATION, OR COMMUNICATION AMONG THE SEVERAL STATES, OR BETWEEN
THE DISTRICT OF COLUMBIA OR ANY TERRITORY OF THE UNITED STATES AND ANY
STATE OR OTHER TERRITORY, OR BETWEEN ANY FOREIGN COUNTRY AND ANY STATE,
TERRITORY, OR THE DISTRICT OF COLUMBIA, OR WITHIN THE DISTRICT OF
COLUMBIA OR ANY TERRITORY, OR BETWEEN POINTS IN THE SAME STATE BUT
THROUGH ANY OTHER STATE OR ANY TERRITORY OR THE DISTRICT OF COLUMBIA OR
ANY FOREIGN COUNTRY.     "(7) THE TERM 'AFFECTING COMMERCE' MEANS IN
COMMERCE, OR BURDENING OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF
COMMERCE, OR HAVING LED OR TENDING TO LEAD TO A LABOR DISPUTE BURDENING
OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE." 

/9/  415 U.S.,AT 114. 

OUR BROTHER STEWART SUGGESTS IN DISSENT THAT LONGSHOREMEN V. ARIADNE
CO., 397 U.S. 195 (1970), REQUIRES REVERSAL HERE, BECAUSE IN THAT CASE
IT WAS HELD THAT LONGSHOREMEN SERVICING FOREIGN-FLAG VESSELS IN
AMERICAN PORTS ARE IN "COMMERCE"  WITHIN THE MEANING OF THE ACT.  BUT
THE ARIADNE COURT, IN DISTINGUISHING BENZ, SUPRA, AND MCCULLOCH, SUPRA,
STATED THAT "(THE CONSIDERATION THAT INFORMED THE COURT'S CONSTRUCTION
OF THE STATUTE" IN THOSE CASES "ARE CLEARLY INAPPLICABLE TO THE
SITUATION PRESENTED HERE.  THE PARTICIPATION OF SOME CREW MEMBERS IN
THE LONGSHORE WORK DOES NOT OBSCURE THE FACT THAT THIS DISPUTE CENTERED
ON THE WAGES TO BE PAID AMERICAN RESIDENTS, WHO WERE EMPLOYED BY EACH
FOREIGN SHIP NOT TO SERVE AS MEMBERS OF ITS CREW BUT RATHER TO DO
CASUAL LONGSHORE WORK."  397 U.S.,AT 199.  THE COURT IN WINDWARD
REITERATED THAT DISTINCTION: 

"THE PICKETS IN ARIADNE, UNLIKE THE PICKETS IN BENZ OR INCRES, WERE
PRIMARILY ENGAGED IN A DISPUTE AS TO WHETHER AN EMPLOYER SHOULD HIRE
UNIONIZED OR NONUNIONIZED AMERICAN WORKERS TO PERFORM LONGSHOREMEN'S
WORK, AND THE SUBSTANTIAL WAGES WHICH THEY WERE PROTESTING WERE BEING
PAID TO FELLOW AMERICAN WORKERS."  415 U.S.,AT 112. 

HER THE PICKETING WHICH TRIGGERED THE DISPUTE WAS NOT DIRECTED
TOWARD ANY WAGES OR CONDITIONS OF EMPLOYMENT OF THE LONGSHOREMEN.  IT
WAS INSTEAD DIRECTED TO SUBSTANDARD WAGES BEING PAID TO THE CREWS OF
FOREIGN-FLAG VESSELS THROUGHOUT THOSE VESSELS' WORLDWIDE MARITIME
OPERATIONS.  IN ARIADNE, ON THE CONTRARY, THE PICKETING WAS DIRECTED
TOWARD REQUIRING A FOREIGN-FLAG VESSEL TO HIRE UNIONIZED AMERICAN
WORKERS, RATHER THAN NONUNIONIZED AMERICAN WORKERS, TO SERVICE VESSELS
BERTHED IN AMERICAN PORTS.  THAT THE LATTER EFFECT DOES NOT SURPASS
"THE THRESHOLD OF INTERFERENCE WITH THE MARITIME OPERATIONS OF FOREIGN
VESSELS WHICH MAKES THE LMRA INAPPLICABLE," WINDWARD, SUPRA, AT 114,
CERTAINLY PROVIDES NO SUPPORT FOR THE PROPOSITION THAT THE FORMER
EFFECT ALSO DOES NOT SURPASS THAT THRESHOLD. 

/10/  IN SO HOLDING, WE NEED CAST NO DOUBT ON THOSE CASES WHICH HOLD
THAT THE BOARD HAS JURISDICTION UNDER 8(B)(4) OF DOMESTIC SECONDARY
ACTIVITIES WHICH ARE IN COMMERCE, EVEN THOUGH THE PRIMARY EMPLOYER IS
LOCATED OUTSIDE THE UNITED STATES.  SEE MADDEN V. GRAIN ELEVATOR
WORKERS LOCAL 418, 334 F.2D 1014 (CA7 1964), CERT. DENIED, 379 U.S. 967
(1965); GRAIN ELEVATOR WORKERS LOCAL 418 V. NLRB, 126 U.S.APP.D.C. 219,
376 F.2D 774, CERT. DENIED, 389 U.S. 932 (1967). 

/11/  THE DEFINITION APPEARS IN 29 U.S.C. 152(2): 

"(2) THE TERM 'EMPLOYER' INCLUDES ANY PERSON ACTING AS AN AGENT OF
AN EMPLOYER, DIRECTLY OR INDIRECTLY, BUT SHALL NOT INCLUDE THE UNITED
STATES OF ANY WHOLLY OWNED GOVERNMENT CORPORAION, OR ANY FEDERAL
RESERVE BANK, OR ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
CORPORATION OR ASSOCIATION OPERATING A HOSPITAL, IF NO PART OF THE NET
EARNINGS INURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER OR
INDIVIDUAL, OR ANY PERSON SUBJECT TO THE RAILWAY LABOR ACT, AS AMENDED
FROM TIME TO TIME, OR ANY LABOR ORGANIZATION (OTHER THAN WHEN ACTING AS
AN EMPLOYER), OR ANYONE ACTING IN THE CAPACITY OF OFFICER OR AGENT OF
SUCH LABOR ORGANIZATION." 

/12/  THE RECORD INDICATES THAT ALL GRAIN STORAGE FACILITIES IN THE
MOBILE AREA WERE FULL.  ADDITIONAL SOYBEANS COULD BE HARVESTED ONLY AS
THOSE ALREADY STORED WERE TRANSFERRED TO WAITING VESSELS.  APP. 77A -
80A. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH MY BROTHER STEWART THAT THE DISPUTE IN THE PRESENT CASE
IS WITHIN THE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD AND
THAT THAT JURISDICTION IS EXCLUSIVE OF STATE JURISDICTION.  THE FOREIGN
FLAG SHIP INVOLVED IN THE PRESENT CONTROVERSY IS LIBERIAN.  HENCE I ADD
A FEW OBSERVATIONS GENERATED BY NOEL MOSTERT'S SUPERSHIP (1974)
DISCUSSING THE PROBLEMS OF THE BIG NEW OIL TANKERS AND THEIR VAST
POLLUTION OF THE OCEANS OF THE WORLD.  HE PUTS LIBERIAN-FLAG SHIPS IN
THE FOLLOWING PERSPECTIVE: 

"LIBERIA NOW HAS THE WORLD'S LARGEST MERCHANT MARINE, FOLLOWED BY
JAPAN AND BRITAIN, AND HER LEAD IS RAPIDLY INCREASING; FLAG OF
CONVENIENCE FLEETS HAVE REGULARLY GROWN AT RATES MORE THAN TWICE THOSE
OF WORLD FLEETS AS A WHOLE.  LIBERIA AND PANAMA TOGETHER NOW OWN, ON
PAPER, NEARLY A QUARTER OF WORLD SHIPPING.  TANKERS DOMINATE THESE
EXPATRIATE FLEETS. 

     "THIRTY-FIVE TO 40 PERCENT OF THE LIBERIAN TONNAGE IS

  AMERICAN-OWNED, AND AN ADDITIONAL 10 PERCENT OF IT IS

  AMERICAN-FINANCED, WHICH HELPS EXPLAIN WHERE THE AMERICAN

  MERCHANT FLEET, IN STEADY DECLINE SINCE THE END OF THE WAR, HAS

  TAKEN ITSELF.  ACCORDING TO LAW, AMERICAN-FLAG SHIPS MUST BE

  BUILT IN THE UNITED STATES AND MUST BE THREE-QUARTERS MANNED BY

  AMERICANS.  AMERICAN SHIPBUILDING COSTS USED TO BE DOUBLE THOSE

  ELSEWHERE (INFLATION ABROAD HAD HELPED MAKE THEM COMPETITIVE

AGAIN), AND AMERICAN SEAMEN'S WAGES ARE STILL HIGHER THAN

 ELSEWHERE.  . . . 

     "FLAG OF CONVENIENCE OPERATORS OFTEN SAY THAT THEIR SHIPS,

  ESPECIALLY MANY OF THOSE UNDER THE LIBERIAN FLAG, ARE AMONG THE

  LARGEST, BEST-EQUIPPED, AND MOST MODERN IN THE WORLD . THIS MAY

  BE TRUE.  BUT SHIPS ARE ONLY AS GOOD AS THE MEN WHO RUN THEM, AND

  THE RECORD IS NOT IMPRESSIVE.  OLD SHIPS TRADITIONALLY HAVE A

  HIGHER CASUALTY RATE THAN THAN NEW ONES.  LIBERIAN LOSSES BETWEEN

  1966 AND 1970 NOT ONLY AVERAGED TWICE AS HIGH AS THOSE OF THE

  OTHER MAJOR MARITIME NATIONS, BUT, CONTRARY TO THE RULE, THE

  SHIPS THEY WERE LOSING WERE ON THE WHOLE NEW ONES, CERTAINLY

  NEWER THAN THE ONES LOST BY THE OTHER PRINCIPAL MERCHANT MARINES:

   THE AVERAGE AGE OF LIBERIAN LOSSES IN THAT FOUR-YEAR PERIOD WAS

  8.7 YEARS, WHILE THAT OF THE JAPANESE AND EUROPEAN AVERAGED 12

  YEARS. 

     "TO A DISCONCERTING DEGREE, OIL CARGOES HAVE BEEN DELIVERED IN

  RECENT YEARS BY IMPROPERLY TRAINED AND UNCERTIFIED OFFICERS,

  ABOARD SHIPS NAVIGATING WITH DEFECTIVE EQUIPMENT."  ID., AT 58 -

  59. 

WHILE THE LIBERIAN-FLAG VESSEL IN THE PRESENT CASE WAS NOT AN OIL
TANKER, THE QUOTED PASSAGES DEMONSTRATE THE SCOPE OF THE PUBLIC
INTEREST OF OUR PEOPLE IN KEEPING MARINE TRAFFIC IN MORE RESPONSIBLE
HANDS THAN THOSE WHICH THE "FLAG OF CONVENIENCE"  COMMONLY USES.  NO
PUBLIC ISSUE IS TODAY MORE IMPORTANT, AT LEAST TO THE LIFE OF THE
OCEANS OF THE WORLD AND THE WELL-BEING OF OUR OWN WORKING FORCE.  LARGE
NATIONAL INTERESTS RIDE ON TODAY'S DECISION.  CONGRESS, IN THIS TYPE OF
CASE, HAS APPROPRIATELY MADE THE NATIONAL LABOR RELATIONS BOARD THE
EXCLUSIVE ARBITER OF THE PRESENT CONTROVERSY, AS MY BROTHER STEWART
COVINCINGLY DEMONSTRATES.  I ACCORDINGLY WOULD REVERSE THE JUDGMENT
BELOW. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

THE ISSUE IN THE PRESENT CASE IS QUITE DIFFERENT FROM THE ISSUE
DECIDED LAST TERM IN WINDWARD SHIPPING V. AMERICAN RADIO ASSN., 415
U.S. 104.  BECAUSE THE DISPUTE IN THIS CASE CLEARLY "AFFECTS COMMERCE"
AND THUS FALLS WITHIN THE EXCLUSIVE REGULATORY POWER OF THE NATIONAL
LABOR RELATIONS BOARD, I WOULD REVERSE THE JUDGMENT BEFORE US. 

IN WINDWARD SHIPPING, THE OWNERS AND MANAGING AGENTS OF TWO FOREIGN
FLAG VESSELS SOUGHT INJUNCTIVE RELIEF IN STATE COURTS IN TEXAS TO BAR
PICKETING OF THEIR VESSELS BY SEVERAL AMERICAN MARITIME UNIONS.  THE
UNIONS WERE ATTEMPTING TO PUBLICIZE THE COMPETITIVE ADVANTAGE ENJOYED
BY FOREIGN-FLAG VESSELS BECAUSE OF THE SUBSTANTIAL DISPARITY BETWEEN
FOREIGN AND DOMESTIC SEAMEN'S WAGES.  THE VESSELS'  OWNERS AND MANAGING
AGENTS ASKED THE STATE COURTS TO ENJOIN THE PICKETING AS TORTIOUS UNDER
TEXAS LAW.  THE PRIMARY BASIS FOR THIS CLAIM WAS THAT THE PICKETING
SOUGHT TO INDUCE THE FOREIGN-FLAG VESSEL OWNERS AND THEIR FOREIGN CREWS
TO BREAK PRE-EXISTING CONTRACTS.  THE TEXAS COURTS CONCLUDED THAT THEY
LACKED JURISDICTION TO CONSIDER THE COMPLAINT OF INTERFERENCE WITH
CONTRACT BECAUSE THE DISPUTE BETWEEN THE FOREIGN-FLAG SHIPOWNERS AND
THE AMERICAN UNIONS WAS "ARGUABLY" WITHIN THE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD. 

IN REVERSING THE JUDGMENT OF THE TEXAS COURT OF APPEALS, THIS COURT
REAFFIRMED EARLIER CASES THAT HAD RECOGNIZED THAT "CONGRESS, WHEN IT
USED THE WORDS 'IN COMMERCE'  IN THE (LABOR MANAGEMENT RELATIONS ACT),
SIMPLY DID NOT INTEND THAT ACT TO ERASE LONGSTANDING PRINCIPLES OF
COMITY AND ACCOMMODATION IN INTERNATIONAL MARITIME TRADE."  415 U.S.,AT
112 - 113.  IN THOSE EARLIER CASES THE COURT HAD CONCLUDED THAT
MARITIME OPERATIONS OF FOREIGN-FLAG SHIPS EMPLOYING ALIEN SEAMEN ARE
NOT IN "COMMERCE" WITHIN THE MEANING OF 2(6) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED BY LMRA, 29 U.S.C. 152(6).  THEREFORE,
DISPUTES AFFECTING THOSE OPERATIONS DO NOT "AFFECT COMMERCE," AND ARE
NOT WITHIN THE JURISDICTION OF THE BOARD.  SEE BENZ V. COMPANIA NAVIERA
HIDALGO, 353 U.S. 138; MCCULLOCH V. SOCIEDAD NACIONAL, 372 U.S. 10;
INCRES S.S. CO. V. MARITIME WORKERS, 372 U.S. 24. 

ALTHOUGH THE UNION ACTIVITY SOUGHT TO BE ENJOINED BY THE FOREIGN
FLAG SHIPOWNERS IN WINDWARD SHIPPING DID NOT INVOLVE THE SAME DEGREE OF
INTRUSION INTO THE INTERNAL AFFAIRS OF FOREIGN VESSELS THAT WAS PRESENT
IN BENZ, MCCULLOCK, AND INCRES, THE COURT CONCLUDED THAT THE ECONOMIC
IMPACT UPON FOREIGN SHIPPING FROM THE UNIONS'  CONDUCT MIGHT SEVERELY
DISRUPT THE MARITIME OPERATIONS OF THE FOREIGN VESSELS.  "VIRTUALLY
NONE OF THE PREDICTABLE RESPONSES OF A FOREIGN SHIPOWNERS TO PICKETING
OF THIS TYPE," THE COURT NOTED, "WOULD BE LIMITED TO THE SORT OF WAGE
COST DECISION BENEFITING AMERICAN WORKINGMEN WHICH THE LMRA WAS
DESIGNED TO REGULATE."  415 U.S.,AT 115.  CF. LONGSHOREMEN V. ARIADNE
CO., 397 U.S. 195.  ACCORDINGLY, THE COURT HELD THAT THE TEXAS COURTS
HAD JURISDICTION OVER THE FOREIGN SHIPOWNERS' COMPLAINT THAT THE UNION
ACTIVITY WAS INTERFERING WITH PRE-EXISTING CONTRACTS BETWEEN THE OWNERS
AND THEIR CREWS. 

THE QUESTION PRESENTED BY THIS CASE, HOWEVER, IS NOT WHETHER STATE
COURT JURISDICTION OVER A DISPUTE BETWEEN OWNERS OF FOREIGN-FLAG
VESSELS AND AMERICAN MARITIME UNIONS IS OUTSIDE THE SCOPE OF THE ACT,
AS IT WAS IN WINDWARD SHIPPING.  RATHER, THE QUESTION IS WHETHER STATE
COURTS HAVE JURISDICTION OVER A COMPLAINT BY AN ASSOCIATION OF AMERICAN
STEVEDORING COMPANIES THAT SECONDARY PRESSURE CAUSED BY THE PICKETING
OF AMERICAN MARITIME UNIONS CONSTITUTED A WRONGFUL INTERFERENCE WITH
THE AMERICAN COMPANIES' RIGHT TO CARRY ON THEIR LAWFUL BUSINESS. 
NEITHER THE LANGUAGE OF THE ACT NOR THE PRINCIPLES OF COMITY UNDERLYING
OUR DECISION IN WINDWARD SHIPPING SUPPORT THE COURT'S CONCLUSION THAT
THIS DISPUTE BETWEEN AMERICAN EMPLOYERS AND AMERICAN UNIONS IS OUTSIDE
THE JURISDICTION OF THE LABOR BOARD. 

AS IN WINDWARD SHIPPING, THE LABOR DISPUTE IN THIS CASE BEGAN WHEN
SIX AMERICAN MARITIME UNIONS PICKETED A FOREIGN VESSEL TO PUBLICIZE THE
ADVERSE CONSEQUENCES TO AMERICAN SEAMEN OF THE LOW WAGES PAID BY THE
FOREIGN SHIPOWNER.  AS A RESULT OF THE PICKETING, AMERICAN LONGSHOREMEN
AND OTHER WORKERS EMPLOYED BY THE MEMBER COMPANIES OF THE MOBILE
STEAMSHIP ASSOCIATION REFUSED TO SERVICE THE FOREIGN-FLAG VESSEL.  IT
WAS THIS ALLEGEDLY UNLAWFUL SECONDARY PRESSURE GENERATED BY THE
MARITIME UNIONS'  PICKETING THAT THE MOBILE STEAMSHIP ASSOCIATION
SOUGHT TO ENJOIN IN STATE COURT AS A TORTIOUS INTERFERENCE WITH ITS
RIGHT TO CONTRACT AND TO CARRY ON ITS LAWFUL BUSINESS. 

THE ALLEGEDLY TORTIOUS SECONDARY PRESSURE THAT FORMED THE BASIS FOR
MOBILE STEAMSHIP ASSOCIATION'S STATE COURT COMPLAINT IS PRECISELY THE
TYPE OF CONCERTED ACTIVITY MADE SUBJECT TO BOARD REGULATION BY
8(B)(4)(I)(B) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 73 STAT.
542, 29 U.S.C. 158(B)(4)(I)(B).  THAT SECTION, DESIGNED TO SHIELD
NEUTRAL THIRD PARTIES FROM THE ADVERSE IMPACT OF LABOR DISPUTES IN
WHICH THEY ARE NOT INVOLVED, MAKES IT AN UNFAIR LABOR PRACTICE FOR A
LABOR ORGANIZATION "TO INDUCE OR ENCOURAGE ANY INDIVIDUAL EMPLOYED BY
ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE TO
ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS EMPLOYMENT TO
USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE OR WORK ON
ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES . . . WHERE . . . AN
OBJECT THEREOF IS . . . FORCING OR REQUIRING ANY PERSON . . . TO CEASE
DOING BUSINESS WITH ANY OTHER PERSON.  . . ." 

I CANNOT AGREE WITH THE COURT'S CONCLUSION THAT THE SECONDARY
DISPUTE BETWEEN THE AMERICAN MARITIME UNIONS AND THE MOBILE STEAMSHIP
ASSOCIATION THAT IS THE BASIS FOR THIS LAWSUIT FAILS TO SATISFY ALL THE
JURISDICTIONAL REQUIREMENTS OF 8(B)(4)(B).  /1/ WINDWARD SHIPPING AND
THE CASES ON WHICH IT RELIED HAVE ESTABLISHED THAT THE MARITIME
OPERATIONS OF FOREIGN-FLAG SHIPS EMPLOYING ALIEN SEAMEN ARE NOT IN
"COMMERCE" WITHIN THE MEANING OF THE ACT.  ACCORDINGLY, WE HELD IN
THOSE CASES THAT LABOR DISPUTES AFFECTING THOSE OPERATIONS DO NOT
"AFFECT COMMERCE," SO FAR AS THE ACT IS CONCERNED.  BUT THOSE DECISIONS
CANNOT BE READ TO SUGGEST THAT AMERICAN STEVEDORING COMPANIES WHOSE
AMERICAN EMPLOYEES LOAD AND UNLOAD BOTH AMERICAN- AND FOREIGN-FLAG
VESSELS IN AMERICAN PORTS ARE NOT "ENGAGED IN COMMERCE OR IN AN
INDUSTRY AFFECTING COMMERCE."  INDEED, IN LONGSHOREMEN V. ARIADNE CO.,
397 U.S.,AT 200, WE HELD THAT LONGSHOREMEN SERVICING FOREIGN-FLAG
VESSELS IN AMERICAN PORTS ARE IN "COMMERCE"  WITHIN THE MEANING OF 2(6)
OF THE ACT, AND THUS SUBJECT TO THE REGULATORY POWER OF THE BOARD. 
CONSEQUENTLY, STEVEDORING COMPANIES EMPLOYING SUCH LONGSHOREMEN MUST BE
"ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE" WITHIN THE
MEANING OF 8(B)(4)(B), AND A LABOR DISPUTE AFFECTING THEIR OPERATIONS
NECESSARILY "AFFECTS COMMERCE" WITHIN THE MEANING OF THE ACT.     THE
COURT'S CONTRARY CONCLUSION APPEARS TO BE BASED ON THE PREMISE THAT IT
WOULD BE "WHOLLY INCONSISTENT" TO HOLD THAT THE UNIONS' PICKETING WAS
NOT "AFFECTING COMMERCE" SO FAR AS THE PRIMARY DISPUTE WITH THE FOREIGN
FLAG SHIPOWNER WAS CONCERNED BUT WAS "AFFECTING COMMERCE" IN THE
SECONDARY DISPUTE HERE INVOLVED.  ANTE, AT 224.  THE COURT DOES NOT
INDICATE THAT A SECONDARY DISPUTE BETWEEN THE MARITIME UNIONS AND THE
MOBILE STEAMSHIP ASSOCIATION COULD NEVER "AFFECT COMMERCE" WITHIN THE
MEANING OF THE ACT, UNLIKE THE WINDWARD SHIPPING DISPUTE BETWEEN THE
UNIONS AND THE FOREIGN SHIPOWNERS WHICH WOULD NEVER "AFFECT COMMERCE." 

IF THE MARITIME UNIONS HAD A PRIMARY DISPUTE WITH AMERICAN-FLAG
SHIPOWNERS, THAT DISPUTE WOULD CLEARLY "AFFECT COMMERCE" WITHIN THE
MEANING OF THE ACT, AND WOULD THUS CLEARLY FALL WITHIN THE BOARD'S
REGULATORY POWER.  TO AVOID INCONSISTENCY THE COURT WOULD PRESUMABLY
CONCLUDE THAT A SECONDARY DISPUTE BETWEEN STEVEDORING COMPANIES AND
MARITIME UNIONS IN SUCH A SITUATION WOULD ALSO "AFFECT COMMERCE."  THE
COURT WOULD THUS MAKE THE DETERMINATION WHETHER AN AMERICAN STEVEDORING
COMPANY WAS "ENGAGED IN AN INDUSTRY AFFECTING COMMERCE," THE 8(B)(4)(B)
JURISDICTIONAL REQUIREMENT, DEPEND ENTIRELY ON WHETHER IN A PARTICULAR
CASE A PRIMARY LABOR DISPUTE TO WHICH THE STEVEDORING COMPANY WAS NOT
PRIVY WAS BETWEEN AN AMERICAN UNION AND AN AMERICAN-FLAG SHIPOWNER OR
AN AMERICAN UNION AND A FOREIGN-FLAG SHIPOWNER.  "THE ANOMALY OF SUCH A
RESULT IS REASON ENOUGH TO QUESTION IT. . . ."  ANTE, AT 221. 

MORE IMPORTANTLY, THE COURT'S CONCLUSION THAT HTIS SECONDARY DISPUTE
BETWEEN AN AMERICAN EMPLOYER AND AMERICAN UNIONS DOES NOT AFFECT
COMMERCE BECAUSE THE PRIMARY DISPUTE BETWEEN THE UNIONS AND FOREIGN
FLAG SHIPOWNERS IS NOT WITHIN THE BOARD'S JURISDICTION SQUARELY
CONFLICTS WITH OUR DECISION IN HATTIESBURG BUILDING & TRADES COUNCIL V.
BROOME, 377 U.S. 126.  IN THAT CASE, AN EMPLOYER SUBJECTED TO SECONDARY
PRESSURE BROUGHT SUIT IN STATE COURT TO ENJOIN PICKETING AT ITS
PREMISES.  AFTER FINDING THAT THE PRIMARY EMPLOYER WAS NOT IN
"COMMERCE" WITHIN THE MEANING OF THE ACT, THE STATE COURT RULED THAT
THE PRE-EMPTION DOCTRINE OF SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236, WAS NOT APPLICABLE.  THE STATE COURT THEN
ENJOINED THE SECONDARY PICKETING OF THE UNION.  THIS COURT UNANIMOUSLY
REVERSED THAT JUDGMENT, HOLDING THAT THE RECORD CLEARLY SHOWED THAT
"THE SECONDARY EMPLOYER'S OPERATIONS MET THE (BOARD'S) JURISDICTIONAL
REQUIREMENTS.  SINCE THE UNION'S ACTIVITIES IN THIS CASE WERE ARGUABLY
AN UNFAIR LABOR PRACTICE, THE STATE COURT HAD NO JURISDICTION TO ISSUE
THE INJUNCTION."  377 U.S.,AT 127 (EMPHASIS ADDED; CITIATIONS
OMITTED). 

THE UNANIMOUS HOLDING IN BROOME THAT EXCLUSIVE BOARD JURISDICTION
OVER A SECONDARY DISPUTE EXISTS ALTHOUGH THE PRIMARY DISPUTE DID NOT
"AFFECT COMMERCE"  WITHIN THE MEANING OF THE ACT FINDS SOLID SUPPORT IN
THE LANGUAGE OF 8(B)(4)(B) ITSELF.  THE SECTION EXPRESSLY REQUIRES THAT
THE NEUTRAL, SECONDARY EMPLOYER BE "ENGAGED IN COMMERCE OR IN AN
INDUSTRY AFFECTING COMMERCE."  HOWEVER, IT REQUIRES ONLY THAT THE
PRIMARY OBJECT OF THE SECONDARY PRESSURE BE A "PERSON."  AS DEFINED BY
2(1) OF THE ACT, 29 U.S.C. 152(1), THERE IS NO REQUIREMENT THAT A
"PERSON," WHICH INCLUDES "INDIVIDUALS, LABOR ORGANIZATIONS,
PARTNERSHIPS, ASSOCIATIONS, (AND) CORPORATIONS,"  EITHER BE "ENGAGED IN
COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE," OR OTHERWISE BE WITHIN
THE JURISDICTION OF THE ACT.  SEE PLUMBERS' UNION V. DOOR COUNTY, 359
U.S. 354 (GOVERNMENTAL UNIT); TEAMSTERS UNION V. N.Y., N.H. & H.R. CO.,
350 U.S. 155 (RAILROAD).  THUS, THE FACT THAT THE FOREIGN-FLAG VESSEL
WHICH WAS THE PRIMARY OBJECT OF THE UNIONS' PICKETING ACTIVITY WAS NOT
IN "COMMERCE" CANNOT STAND AS A BAR TO THE BOARD'S EXERCISE OF
JURISDICTION OVER THE SECONDARY DISPUTE IN THIS CASE. 

NEITHER CONSIDERATIONS OF COMITY NOR A "RELUCTANCE TO INTRUDE
DOMESTIC LABOR LAW WILLY-NILLY INTO THE COMPLEX OF CONSIDERATIONS
AFFECTING FOREIGN TRADE,"  WINDWARD SHIPPING V. AMERICAN RADIO ASSN.,
415 U.S.,AT 110, JUSTIFIES THE COURT'S DISREGARD OF THE CLEAR LANGUAGE
OF 8(B)(4)(B) OR ITS FAILURE TO FOLLOW THE BROOME DECISION.  THE
DISPUTE BEFORE THE ALABAMA COURTS DID NOT INVOLVE THE MARITIME
OPERATIONS OF THE FOREIGN-FLAG VESSEL THAT WAS THE PRIMARY TARGET OF
THE UNIONS'  ACTIVITY.  THE SHIPOWNERS WERE NOT PARTIES TO THE STATE
COURT LAWSUIT.  THE INJUNCTION APPROVED BY THE ALABAMA SUPREME COURT IS
CONCERNED SOLELY WITH UNION INTERFERENCE WITH OPERATIONS AND
CONTRACTUAL RELATIONS OF THE MOBILE STEAMSHIP ASSOCIATION AT THE PORT
OF MOBILE.  THAT ONE OF THE CONTRACTUAL RELATIONSHIPS ALLEGEDLY
INTERFERED WITH WAS BETWEEN MEMBERS OF THE ASSOCIATION AND A FOREIGN
FLAG VESSEL IS NOT APPARENT FROM THE FACE OF THE STATE COURT
INJUNCTION.  /2/ 

IN SHORT, THE DISPUTE BETWEEN AMERICAN WORKINGMEN AND UNIONS AND
THEIR AMERICAN EMPLOYERS WAS WELL WITHIN THE BOUNDARIES OF THE ACT AS
WE HAVE DEFINED THOSE BOUNDARIES IN WINDWARD SHIPPING, BENZ, MCCULLOCH,
AND INCRES.  AS SUCH, IT IS INDISTINGUISHABLE FROM A NUMBER OF
SECONDARY BOYCOTT CASES OVER WHICH THE BOARD HAS EXERCISED ITS
EXCLUSIVE JURISDICTION.  FOR EXAMPLE, IN SAILORS' UNION OF THE PACIFIC
(MOORE DRY DOCK), 92 N.L.R.B. 547, THE BOARD CONSIDERED CHARGES BY AN
AMERICAN DRYDOCK OWNER THAT UNION PICKETING OF A PANAMANIAN SHIP TIED
UP AT THE DRYDOCK CONSTITUTED UNLAWFUL SECONDARY ACTIVITY.  THE UNION
WAS PICKETING IN AN ATTEMPT TO BE RECOGNIZED AS THE BARGAINING
REPRESENTATIVE OF THE PANAMANIAN SHIPOWNER'S CREW.  PRIOR TO THE
BOARD'S CONSIDERATION OF THE SECONDARY DISPUTE, THE UNION HAD FILED A
PETITION FOR CERTIFICATION WITH THE REGIONAL DIRECTOR OF THE NLRB.  THE
PETITION WAS DISMISSED "'INASMUCH AS THE INTERNAL ECONOMY OF A VESSEL
OF FOREIGN REGISTRY AND OWNERSHIP IS INVOLVED.'"  UPON APPEAL, THE
BOARD SUSTAINED THE REGIONAL DIRECTOR'S ACTION ON THE GROUND THAT
"'UPON THE FACTS PRESENTLY EXISTING IN THIS CASE, IT DOES NOT APPEAR
THAT THE BOARD HAS JURISDICTION OVER THE (EMPLOYER.'"  ID., AT 560 -
561.  NOTWITHSTANDING THE BOARD'S REFUSAL TO EXERCISE JURISDICTION OVER
THE PRIMARY DISPUTE BECAUSE IT INVOLVED A FOREIGN-FLAG VESSEL, THE
BOARD ASSUMED JURISDICTION OVER THE SECONDARY DISPUTE BETWEEN THE UNION
AND THE DRYDOCK OWNER.  THIS COURT IN BENZ OBSERVED THAT THE BOARD'S
ASSUMPTION OF JURISDICTION OVER THE SECONDARY DISPUTE IN MOORE DRY DOCK
WAS VERY DIFFERENT FROM AN ATTEMPT TO ASSERT JURISDICTION OVER THE
PRIMARY DISPUTE INVOLVING THE FOREIGN-FLAG SHIPOWNER.  BENZ V. COMPANIA
NAVIERA HIDALGO, 353 U.S.,AT 143 N. 5.  /3/ 

BECAUSE THE SECONDARY DISPUTE IN THIS CASE IMPLICATES ONLY AMERICAN
EMPLOYERS AND THEIR AMERICAN EMPLOYEES, FOLLOWING THE LITERAL LANGUAGE
OF 8(B)(4)(B) AND RECOGNIZING THE BOARD'S EXCLUSIVE JURISDICTION OVER
THE DISPUTE WOULD NOT IN ANY WAY UNDERMINE THE PRINCIPLES OF COMITY
EMPHASIZED IN OUR DECISION IN WINDWARD SHIPPING.  THE BOARD WILL ONLY
DECIDE WHETHER THE SECONDARY EFFECTS OF THE DISPUTE ARE PROHIBITED BY
8(B)(4)(B).  EXERCISE OF THIS JURISDICTION WILL NOT "THRUST THE
NATIONAL LABOR RELATIONS BOARD INTO 'A DELICATE FIELD OF INTERNATIONAL
RELATIONS.'"  LONGSHOREMEN V. ARIADNE CO., 397 U.S.,AT 199.  CERTAINLY
A BOARD DECISION THAT SECONDARY PRESSURE VIOLATED 8(B)(4)(B) WOULD NOT
RISK INTERFERENCE WITH INTERNATIONAL MARITIME TRADE.  NOR WOULD A
DECISION THAT THE SECONDARY PRESSURE DID NOT VIOLATE 8(B)(4)(B)
ENDANGER THE FOREIGN-FLAG SHIPOWNERS' INTERESTS FROM THE IMPACT OF THE
UNIONS'  PICKETING.  THESE INTERESTS ARE FULLY PROTECTED UNDER WINDWARD
SHIPPING BY PERMITTING THE FOREIGN-SHIP OWNER TO SEEK AN INJUNCTION IN
STATE COURT. 

WHERE ACTIVITIES BY PARTIES SUBJECT TO THE REGULARTORY POWER OF THE
NATIONAL LABOR RELATIONS BOARD ARE "ARGUABLY" PROHIBITED BY 8 OF THE
NATIONAL LABOR RELATIONS ACT, THE GENERAL RULE IS THAT THE JURISDICTION
OF THE BOARD IS EXCLUSIVE, PRE-EMPTING BOTH FEDERAL AND STATE COURT
JURISDICTION.  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S.,AT
245; SEE LONGSHOREMEN V. ARIADNE CO., 397 U.S.,AT 201 - 202 (WHITE, J.,
CONCURRING).  DESPITE THIS RULE THE SOLICITOR GENERAL HAS SUGGESTED AS
AMICUS CURIAE THAT WE RECOGNIZE CONCURRENT JURISDICTION IN STATE COURTS
AND THE BOARD TO ENJOIN SECONDARY CONDUCT WHEN THE PRIMARY DISPUTE
INVOLVES A FOREIGN-FLAG VESSEL.  CONGRESS ADOPTED SUCH A PROPOSAL FOR
CONCURRENT STATE COURT JURISDICTION TO AWARD DAMAGES FOR CONDUCT THAT
VIOLATES 8(B)(4).  LABOR MANAGEMENT RELATIONS ACT, AS AMENDED, 303, 29
U.S.C. 187; SEE TEAMSTERS UNION V. MORTON, 377 U.S. 252.  BUT CONGRESS
EXPRESSLY REJECTED A PROPOSAL FOR A COMPARABLE EXCEPTION TO THE GENERAL
RULE OF EXCLUSIVE JURISDICTION FOR COMPLAINTS SEEKING INJUNCTIVE RELIEF
AGAINST SECONDARY CONDUCT ARGUABLY PROHIBITED BY 8(B)(4).  /4/  THE
ONLY DISTINCTION BETWEEN THE AMENDMENT PROVIDING FOR GENERAL CONCURRENT
JURISDICTION OVER SECONDARY CONDUCT REJECTED BY CONGRESS AND THE SCHEME
SUGGESTED BY THE GOVERNMENT IS THAT THE SOLICITOR GENERAL WOULD LIMIT
CONCURRENT STATE COURT JURISDICTION TO SECONDARY DISPUTES IN WHICH THE
PRIMARY EMPLOYER WAS A FOREIGN-FLAG SHIPOWNER.  WINDWARD SHIPPING FULLY
PROTECTS THE INTERESTS OF THESE SHIPOWNERS IN MAINTAINING THE INTEGRITY
OF THE MARITIME OPERATIONS OF THEIR VESSELS BY PERMITTING THEM TO SEEK
STATE COURT INJUNCTIONS.  CONSEQUENTLY, THIS DISTINCTION CANNOT JUSTIFY
OVERRULING THE CONGRESSIONAL DETERMINATION THAT AMERICAN EMPLOYERS WHO
ENJOY THE PROTECTION OF 8(B)(4) SHOULD BE LIMITED TO SECURING
INJUNCTIVE RELIEF THROUGH THE BOARD. 

THE SOLICITOR GENERAL ALSO ARGUES THAT THERE IS NO JUSTIFICATION FOR
THE PRE-EMPTION DOCTRINE IN CASES INVOLVING SECONDARY DISPUTES WHERE
THE PRIMARY DISPUTE IS OUTSIDE THE JURISDICTION OF THE BOARD.  THAT
POSITION, OF COURSE, DIRECTLY CONFLICTS WITH HATTIESBURG BUILDING &
TRADES COUNCIL V. BROOME, 377 U.S. 126, WHERE THIS COURT, AS PREVIOUSLY
NOTED, REVERSED A STATE COURT INJUNCTION DIRECTED AGAINST SECONDARY
CONDUCT, HOLDING THE PRE-EMPTION DOCTRINE APPLICABLE EVEN THOUGH THE
BOARD HAD NO JURISDICTION OVER THE PRIMARY DISPUTE. 

MOREOVER, EVEN THOUGH THE PRIMARY DISPUTE IS OUTSIDE THE BOARD'S
JURISDICTION, THERE IS A CONTINUING NEED TO AVOID DEVELOPMENT OF
CONFLICTING RULES OF SUBSTANTIVE LAW GOVERNING CONCERTED SECONDARY
CONDUCT.  THROUGH INITIAL PASSAGE HAS CLEARLY STATED THAT CERTAIN TYPES
OF SECONDARY ACTIVITY ARE ILLEGAL WITHOUT REGARD TO THE IDENTITY OF THE
PRIMARY EMPLOYER.  BUT JUST AS DELIBERATELY, CONGRESS HAS CHOSEN NOT TO
PROHIBIT RESORT TO CERTAIN TYPES OF SECONDARY PRESSURE.  IF THE ALABAMA
LAW OF SECONDARY BOYCOTTS CAN BE APPLIED TO PROSCRIBE CONDUCT THAT
CONGRESS DECIDED NOT TO PROHIBIT WHEN IT ENACTED 8(B)(4)(B), "THE
INEVITABLE RESULT WOULD BE TO FRUSTRATE THE CONGRESSIONAL DETERMINATION
TO LEAVE THIS WEAPON OF SELF-HELP AVAILABLE, AND TO UPSET THE BALANCE
OF POWER BETWEEN LABOR AND MANAGEMENT EXPRESSED IN OUR NATIONAL LABOR
POLICY.  'FOR A STATE TO IMPINGE ON THE AREA ON LABOR COMBAT DESIGNED
TO BE FREE IS QUITE AS MUCH AN OBSTRUCTION OF FEDERAL POLICY AS IF THE
STATE WERE TO DECLARE PICKETING FREE FOR PURPOSES OR BY METHODS WHICH
THE FEDERAL ACT PROHIBITS.'"  TEAMSTERS UNION V. MORTON, 377 U.S.,AT
260, QUOTING GARNER V. TEAMSTERS UNION, 346 U.S. 485, 500. 

THE NEED TO AVOID CONFLICTING RULES OF SUBSTANTIVE LAW IN THE LABOR
RELATIONS AREA AND THE DESIRABILITY OF LEAVING THE DEVELOPMENT OF SUCH
RULES TO THE NATIONAL LABOR RELATIONS BOARD, THE AGENCY CREATED BY
CONGRESS FOR THAT PURPOSE, IS A "PRIMARY JUSTIFICATION FOR THE PRE
EMPTION DOCTRINE."  VACA V. SIPES, 386 U.S. 171, 180.  BECAUSE THE
SECONDARY ACTIVITY OF THE MARITIME UNIONS CHALLENGED BY THE MOBILE
STEAMSHIP ASSOCIATION "ARGUABLY" VIOLATES 8(B)(4)(B) OF THE ACT, THAT
NEED IS FULLY PRESENT IN THE INSTANT CASE. 

IN SUM, THE DISPUTE BETWEEN THE AMERICAN UNIONS AND THE AMERICAN
STEVEDORING COMPANIES IN THIS CASE CLEARLY "AFFECTS COMMERCE" WITHIN
THE MEANING OF THE ACT AND THUS FALLS WITHIN THE EXCLUSIVE REGULATORY
POWER OF THE NATIONAL LABOR RELATIONS BOARD.  THE JUDGMENT OF THE
ALABAMA SUPREME COURT SHOULD, THEREFORE, BE REVERSED. 

/1/  NOBODY HAS SUGGESTED THAT THE MARITIME UNIONS ENGAGED IN THE
SECONDARY PICKETING ARE NOT "LABOR ORGANIZATIONS" WITHIN THE MEANING OF
2(5) OF THE ACT, 29 U.S.C. 152(5), OR THAT THE LONGSHOREMEN AND OTHER
WORKERS WHO REFUSED TO CROSS THE PICKET LINES AND SERVICE THE FOREIGN
FLAG VESSEL ARE NOT "EMPLOYEES"  WITHIN THE MEANING OF 2(3), 29 U.S.C.
152(3). 

/2/  THE ALABAMA COURTS ENJOINED THE SIX MARITIME UNIONS, THEIR
OFFICERS, MEMBERS, AND EMPLOYEES, FROM: 

"1.  LOITERING, CONGREGATING, OR PICKETING, BY STANDING, WALKING,
MARCHING, SITTING, OR OTHERWISE, AT OR NEAR ANY PART OF THE PREMISES
OWNED, OCCUPIED, OR USED BY MEMBERS OF COMPLAINANT MOBILE STEAMSHIP
ASSOCIATION, INC. 

"2.  IN ANY MANNER INTERFERING WITH OR OBSTRUCTING, BY WORDS OR
ACTIONS, ANY PERSON OR PERSONS WORKING FOR OR DESIRING TO WORK FOR
MEMBERS OF COMPLAINANT MOBILE STEAMSHIP ASSOCIATION, INC. 

"3.  INTERFERING WITH THE OPERATIONS OF ANY MEMBER OF COMPLAINANT
MOBILE STEAMSHIP ASSOCIATION, INC. IN ANY MANNER WHATSOEVER. 

"4.  PICKETING OR INTERFERING AT OR NEAR COMPLAINANT MOBILE
STEAMSHIP ASSOCIATION, INC. AND ITS MEMBERS' PREMISES OR PREMISES USED
BY COMPLAINANT MOBILE STEAMSHIP ASSOCIATION'S MEMBERS IN A MANNER
CALCULATED TO INTIMIDATE COMPLAINANT MOBILE STEAMSHIP ASSOCIATION'S
MEMBERS' EMPLOYEES OR ANYONE WORKING IN ASSOCIATION WITH THE
COMPLAINANT MOBILE STEAMSHIP ASSOCIATION'S MEMBERS, OR ANY OTHER PERSON
ENTERING OR LEAVING OR ATTEMPTING TO ENTER OR LEAVE MOBILE STEAMSHIP
ASSOCIATION'S MEMBERS'  PREMISES, OR CALCULATED TO INDUCE ANY SUCH
PERSONS NOT TO REPORT OR APPLY FOR WORK AT MOBILE STEAMSHIP
ASSOCIATION'S MEMBERS' PREMISES, OR ANY FACILITY USED BY MOBILE
STEAMSHIP ASSOCIATION'S MEMBERS.     "5.  PICKETING DIRECTED AT VESSELS
WITH WHOM MEMBERS OF THE MOBILE STEAMSHIP ASSOCIATION, INC. HAVE
CONTRACTUAL RELATIONS. 

"6.  INTERFERING WITH THE CONTRACTUAL RELATIONS EXISTING OR TO EXIST
BETWEEN THE MEMBERS OF THE MOBILE STEAMSHIP ASSOCIATION, INC. AND
COMPANIES OWNING AND/OR OPERATING VESSELS CALLING AT THE PORT OF
MOBILE." 

/3/  THE ONLY TWO COURTS OF APPEALS THAT APPEAR TO HAVE ADDRESSED
THE QUESTION HAVE ALSO SUSTAINED BOARD JURISDICTION OVER SECONDARY
DISPUTES INVOLVING AMERICAN EMPLOYERS AND UNIONS DESPITE THE FACT THAT
THE PRIMARY DISPUTE INVOLVED FOREIGN-FLAG VESSELS.  MADDEN V. GRAIN
ELEVATOR WORKERS LOCAL 418, 334 F.2D 1014 (CA7); GRAIN ELEVATOR WORKERS
418 V. NLRB, 126 U.S.APP.D.C. 219, 376 F.2D 774. 

/4/  WHEN CONGRESS WAS CONSIDERING THE TAFT-HARDLEY BILL IN 1947, AN
AMENDMENT WAS PROPOSED IN THE SENATE WHICH WOULD HAVE GIVEN AN INJURED
PARTY SUFFERING FROM A SECONDARY BOYCOTT THE RIGHT TO GO DIRECTLY INTO
A DISTRICT COURT AND SEEK INJUNCTIVE RELIEF.  93 CONG.REC.  4835. 
SENATOR TAFT OPPOSED THE AMENDMENT, ARGUING THAT RESISTANCE TO
PROVIDING A PRIVATE INJUNCTIVE REMEDY IN CASES OF SECONDARY BOYCOTTS
WAS SO STRONG THAT THE LANGUAGE OF THE COMMITTEE BILL AUTHORIZING THE
BOARD ALONE TO OBTAIN INJUNCTIVE RELIEF SHOULD BE RETAINED.  SENATOR
TAFT PROPOSED THAT PRIVATE PARTIES BE GIVEN ONLY THE RIGHT TO SUE FOR
DAMAGES.  93 CONG.REC.  4843 - 4844.  THE AMENDMENT WAS THEREAFTER
DEFEATED, ID., AT 4847; AND SENATOR TAFT'S PROPOSAL FOR A PRIVATE
DAMAGES REMEDY, PRESENTLY LMRA 303, 29 U.S.C. 187, WAS ADOPTED.  93
CONG.REC.  4874 - 4875. 

HOWARD SCHULMAN ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

FRANK MCRIGHT ARGUED THE CAUSE FOR RESPONDENTS MOBILE STEAMSHIP
ASSN., INC. WITH HIM ON THE BRIEF WAS KIRK C. SHAW.  ALEX F. LANKFORD
III ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT MALONE. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY SOLICITOR
GENERAL BORK FOR THE UNITED STATES; BY FRANK L. WISWALL, JR., FOR THE
REPUBLIC OF LIBERIA; BY ROBERT S. OGDEN, JR., AND JOSEPH FORTENBERRY
FOR WESTWIND AFRICA LINE, LTD.; AND BY BRYAN F. WILLIAMS, JR., FOR WEST
GULF MARITIME ASSN. ET AL.
..END :
























REGIONAL RAIL REORGANIZATION ACT CASES, 419 U.S. 102 


       REGIONAL RAIL REORGANIZATION ACT CASES* *NO. 74 - 165,

           BLANCHETTE ET AL., TRUSTEES OF PROPERTY OF PENN CENTRAL

           TRANSPORTATION CO. V. CONNECTICUT GENERAL INSURANCE

           CORP. ET AL.; NO. 74 - 166, SMITH, TRUSTEE OF PROPERTY

           OF NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. V. UNITED

           STATES ET AL.; NO. 74 - 167, UNITED STATES RAILWAY ASSN.

           V. CONNECTICUT GENERAL INSURANCE CORP. ET AL.; AND NO.

    74 - 168, UNITED STATES ET AL. V. CONNECTICUT GENERAL

           INSURANCE CORP. ET AL., ON APPEAL FROM THE UNITED STATES

           DISTRICT COURT FOR THE EASTERN DISTRICT OF

           PENNSYLVANIA. 

        ARGUED OCTOBER 23, 1974--DECIDED DECEMBER 16, 1974; 383

           F.SUPP.  510, REVERSED. 


    AS A COMPREHENSIVE SOLUTION TO A NATIONAL RAIL CRISIS

  PRECIPITATED BY THE ENTRY INTO REORGANIZATION PROCEEDINGS UNDER

  77 OF THE BANKRUPTCY ACT OF EIGHT MAJOR RAILROADS IN THE

  NORTHEAST AND MIDWEST REGIONS OF THE COUNTRY, CONGRESS

  SUPPLEMENTED 77 WITH THE REGIONAL RAIL REORGANIZATION ACT OF 1973

  (RAIL ACT).  EACH RAILROAD UNDER A 77 REORGANIZATION MUST PROCEED

  UNDER THE RAIL ACT UNLESS ITS REORGANIZATION COURT WITHIN

  SPECIFIED TIMES FINDS (A) THAT THE RAILROAD IS REORGANIZABLE ON

  AN INCOME BASIS WITHIN A REASONABLE TIME UNDER 77 AND THAT THE

  PUBLIC INTEREST WOULD BE BETTER SERVED BY A 77 RATHER THAN A RAIL

  ACT REORGANIZATION OR (B) THAT THE RAIL ACT DOES NOT PROVIDE A

  PROCESS THAT IS FAIR AND EQUITABLE TO THE ESTATE OF THE RAILROAD

  IN REORGANIZATION (HEREAFTER RAILROAD).  207(B) OF THE RAIL ACT. 

  APPEALS FROM 207(B) ORDERS ARE PROVIDED TO A SPECIAL COURT, WHOSE

  DECISION IS FINAL.  THE RAIL ACT ESTABLISHES A GOVERNMENT

  CORPORATION, THE UNITED STATES RAILWAY ASSOCIATION (USRA), WHICH

  IS DIRECTED TO FORMULATE A "FINAL SYSTEM PLAN" (PLAN) BY JULY 26,

  1975, FOR RESTRUCTURING THE RAILROADS INTO A "FINANCIALLY

  SELF-SUSTAINING RAIL SERVICE SYSTEM."  THE PLAN MUST PROVIDE FOR

 TRANSFER OF DESIGNATED RAILROAD PROPERTIES TO THE CONSOLIDATED

  RAIL CORP. (CONRAIL), A PRIVATE STATE-INCORPORATION, IN RETURN

  FOR CONRAIL SECURITIES, PLUS UP TO $500 MILLION OF FEDERALLY

  GUARANTEED USRA OBLIGATIONS AND THE OTHER BENEFITS ACCRUING TO

  THE RAILROAD FROM THE TRANSFER.  THE PLAN, WHICH BECOMES

  EFFECTIVE IF NEITHER HOUSE OF CONGRESS DISAPPROVES IT WITHIN 60

  DAYS, MUST BE TRANSMITTED TO THE SPECIAL COURT, WHICH HAS

  EXCLUSIVE JURISDICTION OF ALL PROCEEDINGS CONCERNING THE PLAN. 

  209.  WITHIN 10 DAYS AFTER DEPOSIT WITH IT OF CONRAIL SECURITIES

  AND USRA OBLIGATIONS, THE SPECIAL COURT MUST ORDER THE RAILROAD

TRUSTEE TO CONVEY FORTHWITH TO CONRAIL THE RAILROAD'S PROPERTIES

  DESIGNATED IN THE PLAN.  303(B).  THE SPECIAL COURT THEN

  DETERMINES UNDER 303(C), WITH AN APPEAL EXTENDING TO THIS COURT,

  WHETHER THE CONVEYANCE IS FAIR AND EQUITABLE TO THE RAILROAD'S

  ESTATE UNDER 77 STANDARDS, OR WHETHER THE TRANSFER IS MORE FAIR

  AND EQUITABLE THAN A CONSTITUTIONAL MINIMUM REQUIRES (IN WHICH

  CASE NECESSARY ADJUSTMENTS MUST BE MADE).  IF THE SPECIAL COURT

  FINDS THE CONVEYANCE NOT FAIR AND EQUITABLE, THE COURT MUST

  REALLOCATE, OR ORDER ISSUANCE OF ADDITIONAL CONRAIL SECURITIES

AND USRA OBLIGATIONS, ENTER A JUDGMENT AGAINST CONRAIL, OR

COMBINE SUCH REMEDIES.  RAILROADS MAY DISCONTINUE SERVICE AND

  ABANDON PROPERTIES NOT DESIGNATED FOR TRANSFER UNDER THE PLAN,

  BUT UNTIL THE PLAN BECOMES EFFECTIVE MAY ONLY DISCONTINUE SERVICE

  OR ABANDON ANY LINE WITH USRA CONSENT AND ABSENT REASONABLE STATE

  OPPOSITION.  304(F).  PARTIES WITH INTERESTS IN PENN CENTRAL

  TRANSPORTATION CO. (PENN CENTRAL) BROUGHT SUITS ATTACKING THE

  CONSTITUTIONALITY OF THE RAIL ACT, CONTENDING THAT THE ACT

  VIOLATES THE FIFTH AMENDMENT BY TAKING PENN CENTRAL PROPERTY

  WITHOUT JUST COMPENSATION ON THE GROUNDS (1) THAT THE CONRAIL

  SECURITIES AND USRA OBLIGATIONS AND OTHER BENEFITS WOULD NOT BE

  THE CONSTITUTIONALLY REQUIRED EQUIVALENT OF THE RAIL PROPERTIES

  WHOSE TRANSFER IS COMPELLED BY 303(B) (THE "CONVEYANCE TAKING"

  ISSUE), AND (2) THAT 304(F) COMPELS CONTINUATION OF .  L

  OPERATIONS PENDING THE PLAN'S IMPLEMENTATION EVEN IF EROSION,

  BEYOND CONSTITUTIONAL LIMITS, OF PENN CENTRAL'S ESTATE OCCURS

  DURING THE INTERIM PERIOD (THE "EROSION TAKING" ISSUE).  WHILE

  REJECTING THE "CONVEYANCE TAKING" ISSUE AS PREMATURE IN VIEW OF A

  NUMBER OF DECISIONAL STEPS REQUIRED BEFORE THE FINAL CONVEYANCE,

  THE DISTRICT COURT HELD THAT THE "EROSION TAKING"  ISSUE WAS NOT

  PREMATURE, AND REJECTED THE CONTENTION OF THE UNITED STATES,

  USRA, AND THE PENN CENTRAL TRUSTEES THAT IF THE CONSTITUTIONAL

  LIMIT OF PERMISSIBLE UNCOMPENSATED EROSION SHOULD BE PASSED, THE

  PLAINTIFFS WOULD HAVE AN ADEQUATE REMEDY AT LAW UNDER THE TUCKER

  ACT, WHICH GIVES THE COURT OF CLAIMS JURISDICTION TO RENDER

  JUDGMENT "UPON ANY CLAIM AGAINST THE UNITED STATES FOUNDED EITHER

  UPON THE CONSTITUTION, OR ANY ACT OF CONGRESS . . . ," THE

  DISTRICT COURT FINDING THAT THE RAIL ACT PRECLUDED A TUCKER ACT

  REMEDY.  THE COURT THEREFORE DECLARED 304(F) INVALID AS VIOLATING

  THE FIFTH AMENDMENT "TO THE EXTENT THAT IT WOULD REQUIRE

  CONTINUED OPERATION OF RAIL SERVICES AT A LOSS IN VIOLATION OF

  THE CONSTITUTIONAL RIGHTS OF THE OWNERS AND CREDITORS OF A

  RAILROAD," AND THE COURT DECLARED 303 INVALID TO THE EXTENT IT

  FAILED TO COMPENSATE FOR INTERIM EROSION PENDING FINAL

  IMPLEMENTATION OF THE PLAN.  IN ADDITION TO OTHER INJUNCTIVE

  RELIEF, THE DISTRICT COURT ENJOINED USRA FROM CERTIGYING THE PLAN

  TO THE SPECIAL COURT UNDER 209(C).  THE COURT FURTHER DETERMINED

  THAT THE PROVISION OF 207(B) REQUIRING DISMISSAL OF CERTAIN

  REORGANIZATION PROCEEDINGS IS CONSTITUTIONALLY INVALID AS A

  GEOGRAPHICALLY NONUNIFORM LAW ON THE SUBJECT OF BANKRUPTCIES. 

HELD: 

     1.  THE ISSUE OF THE AVAILABILITY OF A TUCKER ACT REMEDY IF
THE

  RAIL ACT EFFECTS AN "EROSION TAKING" IS RIPE FOR ADJUDICATION IN

  VIEW OF THE DISTRICT POSSIBILITY THAT COMPELLED CONTINUED RAIL

  OPERATIONS BY PENN CENTRAL, WHICH IN THE PAST SEVERAL YEARS HAS

  SUSTAINED GREAT LOSSES AND IS NOT "REORGANIZABLE ON AN INCOME

  BASIS WITHIN A REASONABLE TIME UNDER (77)," WOULD INJURE

  PLAINTIFFS BELOW WITHOUT ANY ASSURANCE BEFORE THE PLAN IS

  IMPLEMENTED OF THEIR BEING COMPENSATED.  PP. 122 - 125. 

2.  THE TUCKER ACT REMEDY IS NOT BARRED BY THE RAIL ACT, BUT IS

  AVAILABLE TO PROVIDE JUST COMPENSATION FOR ANY "EROSION TAKING"

  EFFECTED BY THE RAIL ACT.  PP. 125 - 136. 

   (A) THE CORRECT ISSUE IS WHETHER CONGRESS INTENDED TO PREVENT

  RECOURSE TO THE TUCKER ACT AND NOT AS THE DISTRICT COURT HELD

  WHETHER THE RAIL ACT AFFIRMATIVELY MANIFESTS A CONGRESSIONAL

  INTENT TO PERMIT SUCH RECOURSE.  PP. 126 - 127. 

     (B) RAIL ACT PROVISIONS RELIED ON AS EVINCING A CONGRESSIONAL

  DETERMINATION THAT NO FEDERAL FUNDS BEYOND THOSE EXPRESSLY

  COMMITTED BY THE ACT WERE TO BE PAID FOR THE RAIL PROPERTIES,

  EQUALLY SUPPORT THE INFERENCE THAT CONGRESS FELT THAT THE RAIL

  ACT PROVIDED AT LEAST THE MINIMUM COMPENSATION AND GAVE NO

  CONSIDERATION TO WITHDRAWAL OF THE TUCKER ACT REMEDY.  PP. 127 -

  129. 

   (C) SECTION 601 OF THE RAIL ACT, WHICH SPECIFICALLY DEALS WITH

  OTHER STATUTES INCONSISTENT WITH THE RAIL ACT, DOES NOT MENTION

  THE TUCKER ACT.  P. 129. 

     (D) THERE IS NO LEGISLATIVE HISTORY SUPPORTING THE ARGUMENT

  THAT THE RAIL ACT SHOULD BE CONSTRUED TO WITHDRAW THE TUCKER ACT

  REMEDY.  PP. 129 - 133. 

     (E) APPLICABLE CANONS OF CONSTRUCTION FORTIFY THE CONCLUSION

  THAT THE RAIL ACT DOES NOT WITHDRAW THE TUCKER ACT REMEDY.  PP.

  133 - 136. 

     3.  CERTAIN BASIC "CONVEYANCE TAKING" ISSUES ARE NOW RIPE FOR
ADJUDICATION.  PP. 136 - 148. 

     (A) SINCE AFTER THE DISTRICT COURT'S OPINION THE SPECIAL COURT

REVERSED THE PENN CENTRAL REORGANIZATION COURT'S DETERMINATION

  THAT THE RAIL ACT DID NOT PROVIDE A PROCESS THAT WOULD BE FAIR

  AND EQUITABLE TO THE ESTATE, SOME OF THE "CONVEYANCE TAKING"

  ISSUES MUST NOW BE DECIDED.  PP. 138 - 140. 

     (B) IMPLEMENTATION OF THE RAIL ACT WILL NOW LEAD INEXORABLY TO

  THE FINAL CONVEYANCE THOUGH THE EXACT DATE CANNOT NOW BE

  DETERMINED, AND THE SPECIAL COURT MUST ORDER THE CONVEYANCE OF

  RAIL PROPERTIES INCLUDED IN THE PLAN; SINCE THE CONVEYANCE IS

  INEVITABLE IT IS NOT RELEVANT TO THE JUSTICIABLE-CONTROVERSY

  ISSUE THAT THERE WILL BE A DELAY BEFORE THE TRANSFER OCCURS.  PP.

  140 - 143. 

   (C) SEVERAL FACTORS MILITATE AGAINST THE COURT'S DEFERRING

  RESOLUTION OF THE CONSTITUTIONAL ISSUES HERE UNTIL A TIME CLOSER

  TO THE OCCURRENCE OF THE DISPUTED EVENT AND THE COURT WILL BE IN

  NO BETTER POSITION LATER THAN IT IS NOW TO DETERMINE THE VALIDITY

  OF BASIC FINAL CONVEYANCE ISSUES.  HOWEVER, RESOLUTION OF OTHER

  ISSUES, SUCH AS THOSE INVOLVING VALUATION, SHOULD BE POSTPONED. 

  PP. 143 - 148. 

     4.  FOR THE SAME REASONS AS OBTAINED WITH RESPECT TO THE

  "EROSION TAKING" ISSUE, A SUIT IN THE COURT OF CLAIMS IS

  AVAILABLE UNDER THE TUCKER ACT FOR A CASH AWARD TO COVER ANY

  SHORTFALL BETWEEN THE CONSIDERATION THAT THE RAILROADS RECEIVE

  FOR THEIR RAIL PROPERTIES FINALLY CONVEYED UNDER THE RAIL ACT AND

  THE CONSTITUTIONAL MINIMUM.  P. 148. 

      5.  THE TUCKER ACT GUARANTEES AN ADEQUATE REMEDY AT LAW FOR
ANY

  TAKING THAT MIGHT OCCUR AS A RESULT OF THE FINAL CONVEYANCE

  PROVISIONS OF THE RAIL ACT.  PP. 148 - 156. 

     (A) PLAINTIFFS' ARGUMENT THAT THE TUCKER ACT REMEDY IS

  INADEQUATE BECAUSE THE "CONVEYANCE TAKING" IS AN EXERCISE OF THE

  EMINENT DOMAIN POWER AND REQUIRES FULL CASH PAYMENT FOR THE RAIL

  PROPERTIES IS WITHOUT MERIT.  THE RAIL ACT COUPLED WITH THE

  TUCKER ACT IS VALID AS A REORGANIZATION STATUTE AND DOES NOT

  CONSTITUTE AN EMINENT DOMAIN STATUTE BY VIRTUE OF ITS PROVISIONS

  FOR FEDERAL REPRESENTATION ON CONRAIL'S BOARD OF DIRECTORS (WHICH

  DOES NOT CONSTITUTE CONRAIL A FEDERAL INSTRUMENTALITY) AND THE

PROVISIONS FOR CONVEYANCE AND CONTINUATION OF SERVICES PENDING

  THE PLAN'S INFORAMTION; OR BECAUSE OF ANY DEFECTS IN THE ACT'S

  PROVISIONS FOR JUDICIAL REVIEW.  PP. 152 - 155. 

     (B) THOUGH THE RAIL ACT DIFFERS FROM OTHER REORGANIZATION

  STATUTES BY MANDATING CONVEYANCE WITHOUT ANY PRIOR JUDICIAL

  FINDING THAT THERE WILL BE ADEQUATE RESOURCES IN THE REORGANIZED

  COMPANY TO COMPENSATE THE DEBTOR ESTATES AND, EVENTUALLY, THEIR

  CREDITORS, RECOURSE TO A TUCKER ACT SUIT FOR ANY SHORTFALL

  PROVIDES ADEQUATE ASSURANCE THAT ANY TAKING WILL BE COMPENSATED. 

  PP. 155 - 156. 

     (C) THE TUCKER ACT ALSO ASSURES THAT THE RAILROAD ESTATES AND

  THEIR CREDITORS WILL EVENTUALLY BE MADE WHOLE FOR THE ASSETS

  CONVEYED, AND THUS THE RAIL ACT DOES NOT DEPRIVE PLAINTIFFS OF

  PROCEDURAL DUE PROCESS.  P. 156. 

     6.  THE RAIL ACT DOES NOT CONTRAVENE THE UNIFORMITY
REQUIREMENT

  OF THE BANKRUPTCY CLAUSE.  PP. 156 - 161. 

     (A) THIS COURT'S HOLDING THAT THE TUCKER ACT REMEDY IS

  AVAILABLE FOR ANY UNCOMPENSATED TAKING UNDER THE RAIL ACT

  OBVIATES THE POSSIBILITY THAT THE PENN CENTRAL REORGANIZATION

  COURT WILL EVER CONFRONT THE PROVISION FOR DISMISSAL OF A 77

  PROCEEDING UNDER 207(B) OF THE RAIL ACT, WHICH THE DISTRICT COURT

  HELD VIOLATIVE OF THE BANKRUPTCY UNIFORMITY REQUIREMENTS.  PP.

  156 - 158. 

     (B) PLAINTIFFS' ARGUMENT THAT CONSTITUTIONAL BANKRUPTCY

  UNIFORMITY IS VIOLATED BECAUSE THE RAIL ACT IS RESTRICTED TO A

SINGLE STATUTORILY DEFINED REGION LACKS MERIT SINCE THE

UNIFORMITY REQUIREMENT DOES NOT PRECLUDE CONGRESS FROM FASHIONING

  LEGISLATION TO RESOLVE GEOGRAPHICALLY ISOLATED PROBLEMS, AND HERE

  CONGRESS ACTED CONSISTENTLY WITH THAT REQUIREMENT WHEN IT DEALT

  WITH THE NATIONAL RAIL CRISIS CENTERING IN THE PROBLEMS OF RAIL

  CARRIERS IN THE REGION DEFINED BY THE RAIL ACT ACT AND APPLIED

  THE RAIL ACT TO EVERY RAILROAD IN REORGANIZATION THROUGHOUT THE

  UNITED STATES.  PP. 158 - 161. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND WHITE, MARSHALL, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION,

  POST, P. 161.  STEWART, J., FILED A DISSENTING STATEMENT, POST,

  P. 161. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THESE DIRECT APPEALS AND THE CROSS-APPEAL ARE FROM A JUDGMENT OF A
THREE-JUDGE DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THAT DECLARED THE REGIONAL RAIL REORGANIZATION ACT OF 1973 (RAIL ACT),
87 STAT. 986, 45 U.S.C. 701 ET SEQ. (1970 ED.,SUPP.  III),
UNCONSTITUTIONAL IN PART AND ENJOINED ITS ENFORCEMENT.  /1/  383
F.SUPP.  510 (1974).  WE NOTED PROBABLE JURISDICTION, POST, P. 801.  WE
RESERVE. 

        I

INTRODUCTION 

A RAIL TRANSPORTATION CRISIS SERIOUSLY THREATENING THE NATIONAL
WELFARE WAS PRECIPITATED WHEN EIGHT MAJOR RAILROADS IN THE NORTHEAST
AND MIDWEST REGIONS OF THE COUNTRY /2/  ENTERED REORGANIZATION
PROCEEDINGS UNDER 77 OF THE BANKRUPTCY ACT, 11 U.S.C. 205.  /3/  AFTER
INTERIM MEASURES PROVED TO BE INSUFFICIENT, /4/  CONGRESS CONCLUDED
THAT SOLUTION OF THE CRISIS REQUIRED REORGANIZATION OF THE RAILROADS,
STRIPPED OF EXCESS FACILITIES, INTO A SINGLE, VIABLE SYSTEM OPERATED BY
A PRIVATE, FOR-PROFIT CORPORATION.  SINCE SUCH A SYSTEM CANNOT BE
CREATED UNDER 77 RAIL REORGANIZATION LAW, AND SINCE SIGNIFICANT FEDERAL
FINANCING WOULD BE NECESSARY TO MAKE SUCH A PLAN WORKABLE, CONGRESS
SUPPLEMENTED 77 WITH THE RAIL ACT, WHICH BECAME EFFECTIVE ON JANUARY 2,
1974.  THE SALIENT FEATURES OF THE RAIL ACT ARE: 

1.  REORGANIZATION OF EACH RAILROAD IN 77 REORGANIZATION MUST
PROCEED PURSUANT TO THE RAIL ACT UNLESS THE DISTRICT COURT HAVING
JURISDICTION OVER ITS REORGANIZATION (A) FINDS, WITHIN 120 DAYS AFTER
JANUARY 2, 1974, "THAT THE RAILROAD IS REORGANIZABLE ON AN INCOME BASIS
WITHIN A REASONABLE TIME UNDER SECTION (77) AND THAT THE PUBLIC
INTEREST WOULD BE BETTER SERVED BY SUCH A REORGANIZATION THAN BY A
REORGANIZATION UNDER THIS CHAPTER,"  /5/  OR (B) WITHIN 180 DAYS AFTER
JANUARY 2, 1974, "FINDS THAT THIS CHAPTER DOES NOT PROVIDE A PROCESS
WHICH WOULD BE FAIR AND EQUITABLE TO THE ESTATE OF THE RAILROAD IN
REORGANIZATION . . ."  207(B), 45 U.S.C. 717(B) (1970 ED.,SUPPL. 
III).  /6/  APPEALS FROM 207(B) ORDERS MAY BE TAKEN WITHIN 10 DAYS OF
ENTRY TO A SPECIAL COURT CONSTITUTED UNDER 209(B), 45 U.S.C. 719(B)
(1970 ED.,SUPP.  III), AND MUST BE DECIDED BY THE SPECIAL COURT WITHIN
80 DAYS AFTER THE APPEAL IS TAKEN.  SECTION 207(B) EXPRESSLY PROVIDES
THAT "(THERE SHALL BE NO REVIEW OF THE DECISION OF THE SPECIAL COURT." 
/7/ 

2.  APPELLANT UNITED STATES RAILWAY ASSOCIATION (USRA) IS
ESTABLISHED AS A NEW GOVERNMENT CORPORATION.  201(A), 45 U.S.C. 711(A)
(1970 ED.,SUPP.  III).  USRA MUST PREPARE A "FINAL SYSTEM PLAN" FOR
RESTRUCTURING THE RAILROADS IN REORGANIZATION INTO A "FINANCIALLY SELF
SUSTAINING RAIL SERVICE SYSTEM."  206(A)(1), 45 U.S.C. 716(A)(1) (1970
ED.,SUPP.  III).  SEE 201, 202, 204 - 206, 45 U.S.C. 711, 712, 714 -
716 (1970 ED.,SUPP.  III).  THE FINAL SYSTEM PLAN MUST PROVIDE FOR
TRANSFER OF DESIGNATED RAIL PROPERTIES BY THE RAILROADS IN
REORGANIZATION TO A PRIVATE STATE-INCORPORATED CORPORATION,
CONSOLIDATED RAIL CORPORATION (CONRAIL), 301(A), 45 U.S.C. 741(A) (1970
ED.,SUPP.  III), IN RETURN FOR SECURITIES OF CONRAIL, PLUS UP TO $500
MILLION OF USRA OBLIGATIONS GUARANTEED BY THE UNITED STATES, AND "THE
OTHER BENEFITS ACCRUING TO SUCH RAILROAD BY REASON OF SUCH TRANSFER." 
206(D)(1), 45 U.S.C. 716(D)(1) (1970 ED.,SUPP.  III); SEE ALSO 210, 45
U.S.C. 720 (1970 ED.,SUPP.  III).  /8/ 

3.  USRA MUST SUBMIT A PROPOSED FINAL SYSTEM PLAN TO CONGRESS WITHIN
570 DAYS AFTER JANUARY 2, 1974, 207(C), 207(D), 208(A), 45 U.S.C.
717(C), 717(D), 718(A) (1970 ED.,SUPP.  III), THAT IS, BY JULY 26,
1975.  /9/  THE PLAN BECOMES "EFFECTIVE" IF NEITHER HOUSE OF CONGRESS
DISAPPROVES IT WITHIN 60 CONTINUOUS SESSION DAYS AFTER SUBMISSION. 
102(4), 208(A), 45 U.S.C. 702(4), 718(A) (1970 ED.,SUPP.  III).  /10/
USRA IS REQUIRED TO TRANSMIT THE PLAN WITHIN 90 DAYS AFTER ITS
EFFECTIVE DATE TO THE SPECIAL COURT WHICH, UNDER 209(B), IS GIVEN
EXCLUSIVE JURISDICTION OF ALL "PROCEEDINGS WITH RESPECT TO THE FINAL
SYSTEM PLAN."  45 U.S.C. 719(B) (1970 ED.,SUPP.  III).  THE SPECIAL
COURT "WITHIN 10 DAYS AFTER DEPOSIT . . . OF" CONRAIL SECURITIES AND
USRA OBLIGATIONS "SHALL . . . ORDER THE TRUSTEE OR TRUSTEES OF EACH
RAILROAD IN REORGANIZATION . . . TO CONVEY FORTHWILE" TO CONRAIL "ALL
RIGHT, TITLE, AND INTEREST IN THE RAIL PROPERTIES OF SUCH RAILROAD IN
REORGANIZATION . . ."  DESIGNATED IN THE FINAL SYSTEM PLAN.  303(B), 45
U.S.C. 743(B) (1970 ED.,SUPP.  III). 

4.  THE SPECIAL COURT NEXT DETERMINES WHETHER THE CONVEYANCES OF THE
RAIL PROPERTIES TO CONRAIL "(A) . . . ARE IN THE PUBLIC INTEREST AND
ARE FAIR AND EQUITABLE TO THE ESTATE OF EACH RAILROAD IN REORGANIZATION
IN ACCORDANCE WITH THE STANDARD OF FAIRNESS AND EQUITY APPLICABLE TO
THE APPROVAL OF A PLAN OF REORGANIZATION . . . UNDER SECTION (77) . . .
(OR) (B) WHETHER THE TRANSFERS OR CONVEYANCES ARE MORE FAIR AND
EQUITABLE THAN IS REQUIRED AS A CONSTITUTIONAL MINIMUM."  303(C), 45
U.S.C. 743(C) (1970 ED.,SUPP.  III).  IF THE SPECIAL COURT FINDS THAT
THE TRANSFER IS NOT FAIR AND EQUITABLE, THE SPECIAL COURT MUST
REALLOCATE, OR ORDER ISSUANCE OF ADDITIONAL, CONRAIL SECURITIES AND
USRA OBLIGATIONS (SUBJECT TO THE OVERALL $500 MILLION LIMITATION ON
USRA OBLIGATIONS FOR THIS PURPOSE), OR ENTER A JUDGMENT AGAINST
CONRAIL, OR DECREE A COMBINATION OF THESE REMEDIES.  303(C)(2).  THE
SPECIAL COURT IS NOT AUTHORIZED TO ENTER A JUDGMENT AGAINST THE UNITED
STATES.  SECTION 303 PROVIDES ALSO THAT IF THE SPECIAL COURT DECIDES
THAT THE CONSIDERATION EXCHANGED FOR THE RAIL PROPERTIES IS "MORE FAIR
AND EQUITABLE THAN IS REQUIRED AS A CONSTITUTIONAL MINIMUM,"
303(C)(1)(B), IT SHALL MAKE NECESSARY ADJUSTMENTS SO THAT THE
"CONSTITUTIONAL MINIMUM" IS NOT EXCEEDED.  303(C)(3).  APPEAL FROM
303(C) DETERMINATIONS IS TO THIS COURT.  303(D).  /11/ 

5.  ALTHOUGH RAILROADS IN REORGANIZATION SUBJECT TO THE ACT ARE FREE
TO ABANDON SERVICE AND DISPOSE AS THEY WISH OF ANY RAIL PROPERTIES NOT
DESIGNATED FOR TRANSFER UNDER THE FINAL SYSTEM PLAN, 304(A) - (C), 45
U.S.C. 744(A) - (C) (1970 ED.,SUPP.  III), UNTIL THAT PLAN BECOMES
EFFECTIVE NONE "MAY DISCONTINUE SERVICE OR ABANDON ANY LINE OF RAILROAD
. . . UNLESS . . . AUTHORIZED TO DO SO BY (USRA) AND UNLESS NO AFFECTED
STATE OR LOCAL OR REGIONAL TRANSPORTATION AUTHORITY REASONABLY OPPOSES
SUCH ACTION.  . . ."  304(F). 

     II

        PROCEEDINGS IN THE DISTRICT COURT 

CONSTITUTIONAL QUESTIONS CONCERNING THE ACT ARE RAISED IN THIS
LITIGATION BY PARTIES WITH INTERESTS IN THE PENN CENTRAL TRANSPORTATION
CO. (PENN CENTRAL), THE LARGEST OF THE EIGHT RAILROADS IN
REORGANIZATION.  /12/  THE PRINCIPAL CONTENTION OF THE PLAINTIFFS IN
THE DISTRICT COURT WAS THAT THE RAIL ACT IN TWO RESPECTS EFFECTS A
TAKING OF RAIL PROPERTIES OF PENN CENTRAL WITHOUT PAYMENT OF JUST
COMPENSATION, IN VIOLATION OF THE FIFTH AMENDMENT.  THEY CONTENDED,
FIRST, THAT THE CONRAIL SECURITIES AND USRA OBLIGATIONS AND OTHER
BENEFITS TO BE RECEIVED WOULD NOT BE THE CONSTITUTIONALLY REQUIRED
EQUIVALENT OF THE RAIL PROPERTIES COMPELLED BY 303(B) TO BE
TRANSFERRED.  THIS IS THE "CONVEYANCE TAKING" ISSUE.  THIS CLAIM WAS
REJECTED BY THE DISTRICT COURT AS PREMATURE.  383 F.SUPP.,AT 517 -
518.  THEY CONTENDED, SECOND, THAT A TAKING OF THEIR PROPERTY WITHOUT
JUST COMPENSATION WILL RESULT FROM THE SEVERE INHIBITIONS IMPOSED UPON
DISCONTINUANCE OF SERVICE AND ABANDONMENT OF LINES.  IN PARTICULAR,
THEY CLAIMED THAT 304(F) COMPELS CONTINUATION OF RAIL OPERATIONS
PENDING IMPLEMENTATION OF THE FINAL SYSTEM PLAN EVEN IF EROSION OF THE
PENN CENTRAL ESTATE BEYOND CONSTITUTIONAL LIMITS OCCURS DURING THIS
PERIOD.  THIS IS THE "EROSION TAKING" ISSUE.  THE DISTRICT COURT AGREED
THAT 304(F) REQUIRED CONTINUED OPERATIONS TO THIS EXTENT, AND VIEWED
THE HUGE OPERATING LOSSES ALREADY INCURRED BY PENN CENTRAL AS MAKING
THIS CONTENTION RIPE FOR DETERMINATION, SAYING: 

"(WE ARE PERSUADED THAT A SIGNIFICANT POSSIBILITY EXISTS THAT A
POINT OF EROSION EITHER HAS BEEN OR MAY SOON BE REACHED SO THAT IT CAN
BE SAID THAT (THE CONTENTION OF PLAINTIFFS BELOW) OF INTERIM
UNCONSTITUTIONAL TAKING BY CONTINUED LOSS OPERATIONS IS RIPE FOR
ADJUDICATION."  383 F.SUPP., AT 525 

THE DISTRICT COURT REJECTED THE ARGUMENT OF THE UNITED STATES, USRA,
AND THE PENN CENTRAL TRUSTEES THAT IF IN FACT THE CONSTITUTIONAL LIMIT
OF PERMISSIBLE UNCOMPENSATED EROSION SHOULD BE PASSED, PLAINTIFFS WOULD
HAVE AN ADEQUATE REMEDY AT LAW IN THE COURT OF CLAIMS UNDER THE TUCKER
ACT, 28 U.S.C. 1491.  THE DISTRICT COURT CONSTRUED THE RAIL ACT AS
PRECLUDING A TUCKER ACT REMEDY, STATING: 

"WE ARE PERSUADED THAT THE LEGISLATIVE HISTORY SUPPORTS THE
CONCLUSION THAT CONGRESS INTENDED THAT FINANCIAL OBLIGATIONS BE LIMITED
TO THE EXPRESS TERMS OF THE ACT.  ARTICLE I, SECTION 9, CLAUSE 7 (OF
THE CONSTITUTION) PROVIDES THAT NO MONEY SHALL BE DRAWN FROM THE
TREASURY OF THE UNITED STATES EXCEPT IN CONSEQUENCE OF AN APPROPRIATION
MADE BY LAW.  SECTION 213(B) (OF THE RAIL ACT), AND SECTION 214
ENTITLED 'AUTHORIZATION FOR APPROPRIATIONS' PLACE AN EXPRESS CEILING ON
EXPENDITURES.  SECTION 210 DESCRIBES THE MAXIMUM OBLIGATIONAL AUTHORITY
OF (USRA), AND THE AUTHORIZATION FOR APPROPRIATION IS LIMITED TO 'SUCH
AMOUNTS AS ARE NECESSARY TO DISCHARGE THE OBLIGATIONS OF THE UNITED
STATES ARISING UNDER THIS SECTION.'  (EMPHASIS SUPPLIED.)  JUDICIAL
REVIEW IS DELINEATED WITH SPECIFICITY IN SECTIONS 209(A) AND 303 WITH
NO MENTION OF THE COURT OF CLAIMS."  383 F.SUPP.,AT 528 - 529. 

THE DISTRICT COURT THEREFORE DECLARED 304(F) GOVERNING INTERIM
ABANDMENTS. 

"NULL AND VOID AS VIOLATIVE OF THE FIFTH AMENDMENT OF THE UNITED
STATES CONSTITUTION, TO THE EXTENT THAT IT WOULD REQUIRE CONTINUED
OPERATION OF RAIL SERVICES AT A LOSS IN VIOLATION OF THE CONSTITUTIONAL
RIGHTS OF THE OWNERS AND CREDITORS OF A RAILROAD."  IT CONSEQUENTLY
ENJOINED DEFENDANTS BELOW 

"FROM TAKING ANY ACTION TO ENFORCE THE PROVISIONS OF SECTION 304(F)
. . . WITH RESPECT TO ANY ABANDONMENT, CESSATION, OR REDUCTION OF
SERVICE WHICH HAS BEEN OR MAY HEREAFTER BE DETERMINED BY A COURT OF
COMPETENT JURISDICTION TO BE NECESSARY FOR THE PRESERVATION OF RIGHTS
GUARANTEED BY THE UNITED STATES CONSTITUTION." 

THE DISTRICT COURT ALSO DECLARED THAT 303 RELATING TO THE FINAL
CONVEYANCE OF RAIL PROPERTIES PURSUANT TO THE FINAL SYSTEM PLAN IS 

"NULL AND VOID AS CONTRAVENING THE FIFTH AMENDMENT . . . INSOFAR AS
IT FAILS TO PROVIDE COMPENSATION FOR INTERIM EROSION PENDING FINAL
IMPLEMENTATION OF THE FINAL SYSTEM PLAN . . . ." 

FINALLY, THE DISTRICT COURT ENJOINED USRA "FROM CERTIFYING A FINAL
SYSTEM PLAN TO THE SPECIAL COURT PURSUANT TO SECTION 209(C)."  383
F.SUPP.,AT 530. 

THE RAIL ACT WAS ALSO CHALLENGED IN THE DISTRICT COURT AS NOT
"UNIFORM" WITHIN THE REQUIREMENT OF ART. I, 8, CL. 4, OF THE
CONSTITUTION, WHICH PROVIDES THAT CONGRESS SHALL HAVE THE POWER TO
ENACT "UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES THROUGHOUT THE
UNITED STATES."  THE DISTRICT COURT DISMISSED THIS CONTENTION AS
WITHOUT MERIT EXCEPT AS TO ONE PROVISION OF 207(B).  THE SECTION
PROVIDES THAT IF ANY REORGANIZATION COURT DETERMINES IN THE 180-DAY
PROCEEDINGS UNDER 207(C) THAT THE ACT DOES NOT PROVIDE A FAIR AND
EQUITABLE PROCESS FOR THE REORGANIZATION OF A DEBTOR, THE DEBTOR SHALL
NOT BE REORGANIZED PURSUANT TO THE ACT, AND THE REORGANIZATION COURT
"SHALL DISMISS THE REORGANIZATION PROCEEDING."  THE DISTRICT COURT
DECLARED THIS PART OF 207(B) "NULL AND VOID, AS VIOLATIVE OF ARTICLE I,
FROM ENFORCING, OR TAKING ANY ACTION TO IMPLEMENT, SO MUCH OF SECTION
207(B) . . . AS PURPORTS TO REQUIRE DISMISSAL OF PENDING PROCEEDINGS
FOR REORGANIZATION UNDER SECTION 77 OF THE BANKRUPTCY ACT." 

        III

        THE ISSUES FOR DECISION 

THE MAJOR ISSUES DIVIDING THE PARTIES ARE (1) WHETHER AN ACTION AT
LAW IN THE COURT OF CLAIMS UNDER THE TUCKER ACT, 28 U.S.C. 1491, WILL
BE AVAILABLE TO RECOVER ANY DEFICIENCY OF CONSTITUTIONAL DIMENSION IN
THE COMPENSATION PROVIDED UNDER THE RAIL ACT FOR EITHER THE ALLEGED
"EROSION TAKING" OR THE ALLEGED "CONVEYANCE TAKING," AND (2) IF THE
TUCKER ACT REMEDY IS AVAILABLE, WHETHER IT IS AN ADEQUATE REMEDY.  THE
UNITED STATES, USRA, AND THE PENN CENTRAL TRUSTEES CONTEND THAT IF
RESORT TO A SUPPLEMENTAL REMEDY UNDER THE TUCKER ACT IS NECESSARY, IT
IS BOTH AVAILABLE AND ADEQUATE.  THE PLAINTIFFS BELOW CONTENDED THAT
THE RAIL ACT PRECLUDES RESORT TO THE TUCKER ACT REMEDY, AND IF IT DOES
NOT, THAT THE REMEDY IS INADEQUATE. 

THE SPECIAL COURT, SPEAKING THROUGH JUDGE FRIENDLY, COMPREHENSIVELY
CANVASSED BOTH ISSUES, AND IN A THOROUGH OPINION, CONCLUDED THAT THE
RAIL ACT DOES NOT BAR ANY NECESSARY RESORT TO THE TUCKER ACT REMEDY AND
THAT THE REMEDY IS ADEQUATE.  OUR INDEPENDENT EXAMINATION OF THE ISSUES
BRINGS US TO THE SAME CONCLUSION, SUBSTANTIALLY FOR THE REASONS STATED
BY JUDGE FRIENDLY IN PARTS VII AND VIII - A OF THE SPECIAL COURT
OPINION.  384 F.SUPP.  895, 941 - 953 (1974).  /14/ 

ALSO DISPUTED IS THE DISTRICT COURT'S RULING ON THE UNIFORMITY OF
THE RAIL ACT UNDER THE BANKRUPTCY CLAUSE.  WE HOLD THAT THE CURRENTLY
OPERABLE PORTIONS OF THE ACT ARE UNIFORM. 

    5.  THE TUCKER ACT GUARANTEES AN ADEQUATE REMEDY AT LAW FOR ANY

  TAKING THAT MIGHT OCCUR AS A RESULT OF THE FINAL CONVEYANCE

  PROVISIONS OF THE RAIL ACT.  PP. 148 - 156. 

     (A) PLAINTIFFS' ARGUMENT THAT THE TUCKER ACT REMEDY IS

  INADEQUATE BECAUSE THE "CONVEYANCE TAKING" IS AN EXERCISE OF THE

  EMINENT DOMAIN POWER AND REQUIRES FULL CASH PAYMENT FOR THE RAIL

  PROPERTIES IS WITHOUT MERIT.  THE RAIL ACT COUPLED WITH THE

  TUCKER ACT IS VALID AS A REORGANIZATION STATUTE AND DOES NOT

  CONSTITUTE AN EMINENT DOMAIN STATUTE BY VIRTUE OF ITS PROVISIONS

  FOR FEDERAL REPRESENTATION ON CONRAIL'S BOARD OF DIRECTORS (WHICH

  DOES NOT CONSTITUTE CONRAIL A FEDERAL INSTRUMENTALITY) AND THE

PROVISIONS FOR CONVEYANCE AND CONTINUATION OF SERVICES PENDING

  THE PLAN'S INFORAMTION; OR BECAUSE OF ANY DEFECTS IN THE ACT'S

  PROVISIONS FOR JUDICIAL REVIEW.  PP. 152 - 155. 

     (B) THOUGH THE RAIL ACT DIFFERS FROM OTHER REORGANIZATION

  STATUTES BY MANDATING CONVEYANCE WITHOUT ANY PRIOR JUDICIAL

  FINDING THAT THERE WILL BE ADEQUATE RESOURCES IN THE REORGANIZED

  COMPANY TO COMPENSATE THE DEBTOR ESTATES AND, EVENTUALLY, THEIR

  CREDITORS, RECOURSE TO A TUCKER ACT SUIT FOR ANY SHORTFALL

  PROVIDES ADEQUATE ASSURANCE THAT ANY TAKING WILL BE COMPENSATED. 

  PP. 155 - 156. 

     (C) THE TUCKER ACT ALSO ASSURES THAT THE RAILROAD ESTATES AND

  THEIR CREDITORS WILL EVENTUALLY BE MADE WHOLE FOR THE ASSETS

  CONVEYED, AND THUS THE RAIL ACT DOES NOT DEPRIVE PLAINTIFFS OF

  PROCEDURAL DUE PROCESS.  P. 156. 

     6.  THE RAIL ACT DOES NOT CONTRAVENE THE UNIFORMITY
REQUIREMENT

  OF THE BANKRUPTCY CLAUSE.  PP. 156 - 161. 

     (A) THIS COURT'S HOLDING THAT THE TUCKER ACT REMEDY IS

  AVAILABLE FOR ANY UNCOMPENSATED TAKING UNDER THE RAIL ACT

  OBVIATES THE POSSIBILITY THAT THE PENN CENTRAL REORGANIZATION

  COURT WILL EVER CONFRONT THE PROVISION FOR DISMISSAL OF A 77

  PROCEEDING UNDER 207(B) OF THE RAIL ACT, WHICH THE DISTRICT COURT

  HELD VIOLATIVE OF THE BANKRUPTCY UNIFORMITY REQUIREMENTS.  PP.

  156 - 158. 

     (B) PLAINTIFFS' ARGUMENT THAT CONSTITUTIONAL BANKRUPTCY

  UNIFORMITY IS VIOLATED BECAUSE THE RAIL ACT IS RESTRICTED TO A

SINGLE STATUTORILY DEFINED REGION LACKS MERIT SINCE THE

UNIFORMITY REQUIREMENT DOES NOT PRECLUDE CONGRESS FROM FASHIONING

  LEGISLATION TO RESOLVE GEOGRAPHICALLY ISOLATED PROBLEMS, AND HERE

  CONGRESS ACTED CONSISTENTLY WITH THAT REQUIREMENT WHEN IT DEALT

  WITH THE NATIONAL RAIL CRISIS CENTERING IN THE PROBLEMS OF RAIL

  CARRIERS IN THE REGION DEFINED BY THE RAIL ACT ACT AND APPLIED

  THE RAIL ACT TO EVERY RAILROAD IN REORGANIZATION THROUGHOUT THE

  UNITED STATES.  PP. 158 - 161. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND WHITE, MARSHALL, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION,

  POST, P. 161.  STEWART, J., FILED A DISSENTING STATEMENT, POST,

  P. 161. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THESE DIRECT APPEALS AND THE CROSS-APPEAL ARE FROM A JUDGMENT OF A
THREE-JUDGE DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THAT DECLARED THE REGIONAL RAIL REORGANIZATION ACT OF 1973 (RAIL ACT),
87 STAT. 986, 45 U.S.C. 701 ET SEQ. (1970 ED.,SUPP.  III),
UNCONSTITUTIONAL IN PART AND ENJOINED ITS ENFORCEMENT.  /1/  383
F.SUPP.  510 (1974).  WE NOTED PROBABLE JURISDICTION, POST, P. 801.  WE
RESERVE. 

        I

INTRODUCTION 

A RAIL TRANSPORTATION CRISIS SERIOUSLY THREATENING THE NATIONAL
WELFARE WAS PRECIPITATED WHEN EIGHT MAJOR RAILROADS IN THE NORTHEAST
AND MIDWEST REGIONS OF THE COUNTRY /2/  ENTERED REORGANIZATION
PROCEEDINGS UNDER 77 OF THE BANKRUPTCY ACT, 11 U.S.C. 205.  /3/  AFTER
INTERIM MEASURES PROVED TO BE INSUFFICIENT, /4/  CONGRESS CONCLUDED
THAT SOLUTION OF THE CRISIS REQUIRED REORGANIZATION OF THE RAILROADS,
STRIPPED OF EXCESS FACILITIES, INTO A SINGLE, VIABLE SYSTEM OPERATED BY
A PRIVATE, FOR-PROFIT CORPORATION.  SINCE SUCH A SYSTEM CANNOT BE
CREATED UNDER 77 RAIL REORGANIZATION LAW, AND SINCE SIGNIFICANT FEDERAL
FINANCING WOULD BE NECESSARY TO MAKE SUCH A PLAN WORKABLE, CONGRESS
SUPPLEMENTED 77 WITH THE RAIL ACT, WHICH BECAME EFFECTIVE ON JANUARY 2,
1974.  THE SALIENT FEATURES OF THE RAIL ACT ARE: 

1.  REORGANIZATION OF EACH RAILROAD IN 77 REORGANIZATION MUST
PROCEED PURSUANT TO THE RAIL ACT UNLESS THE DISTRICT COURT HAVING
JURISDICTION OVER ITS REORGANIZATION (A) FINDS, WITHIN 120 DAYS AFTER
JANUARY 2, 1974, "THAT THE RAILROAD IS REORGANIZABLE ON AN INCOME BASIS
WITHIN A REASONABLE TIME UNDER SECTION (77) AND THAT THE PUBLIC
INTEREST WOULD BE BETTER SERVED BY SUCH A REORGANIZATION THAN BY A
REORGANIZATION UNDER THIS CHAPTER,"  /5/  OR (B) WITHIN 180 DAYS AFTER
JANUARY 2, 1974, "FINDS THAT THIS CHAPTER DOES NOT PROVIDE A PROCESS
WHICH WOULD BE FAIR AND EQUITABLE TO THE ESTATE OF THE RAILROAD IN
REORGANIZATION . . ."  207(B), 45 U.S.C. 717(B) (1970 ED.,SUPPL. 
III).  /6/  APPEALS FROM 207(B) ORDERS MAY BE TAKEN WITHIN 10 DAYS OF
ENTRY TO A SPECIAL COURT CONSTITUTED UNDER 209(B), 45 U.S.C. 719(B)
(1970 ED.,SUPP.  III), AND MUST BE DECIDED BY THE SPECIAL COURT WITHIN
80 DAYS AFTER THE APPEAL IS TAKEN.  SECTION 207(B) EXPRESSLY PROVIDES
THAT "(THERE SHALL BE NO REVIEW OF THE DECISION OF THE SPECIAL COURT." 
/7/ 

2.  APPELLANT UNITED STATES RAILWAY ASSOCIATION (USRA) IS
ESTABLISHED AS A NEW GOVERNMENT CORPORATION.  201(A), 45 U.S.C. 711(A)
(1970 ED.,SUPP.  III).  USRA MUST PREPARE A "FINAL SYSTEM PLAN" FOR
RESTRUCTURING THE RAILROADS IN REORGANIZATION INTO A "FINANCIALLY SELF
SUSTAINING RAIL SERVICE SYSTEM."  206(A)(1), 45 U.S.C. 716(A)(1) (1970
ED.,SUPP.  III).  SEE 201, 202, 204 - 206, 45 U.S.C. 711, 712, 714 -
716 (1970 ED.,SUPP.  III).  THE FINAL SYSTEM PLAN MUST PROVIDE FOR
TRANSFER OF DESIGNATED RAIL PROPERTIES BY THE RAILROADS IN
REORGANIZATION TO A PRIVATE STATE-INCORPORATED CORPORATION,
CONSOLIDATED RAIL CORPORATION (CONRAIL), 301(A), 45 U.S.C. 741(A) (1970
ED.,SUPP.  III), IN RETURN FOR SECURITIES OF CONRAIL, PLUS UP TO $500
MILLION OF USRA OBLIGATIONS GUARANTEED BY THE UNITED STATES, AND "THE
OTHER BENEFITS ACCRUING TO SUCH RAILROAD BY REASON OF SUCH TRANSFER." 
206(D)(1), 45 U.S.C. 716(D)(1) (1970 ED.,SUPP.  III); SEE ALSO 210, 45
U.S.C. 720 (1970 ED.,SUPP.  III).  /8/ 

3.  USRA MUST SUBMIT A PROPOSED FINAL SYSTEM PLAN TO CONGRESS WITHIN
570 DAYS AFTER JANUARY 2, 1974, 207(C), 207(D), 208(A), 45 U.S.C.
717(C), 717(D), 718(A) (1970 ED.,SUPP.  III), THAT IS, BY JULY 26,
1975.  /9/  THE PLAN BECOMES "EFFECTIVE" IF NEITHER HOUSE OF CONGRESS
DISAPPROVES IT WITHIN 60 CONTINUOUS SESSION DAYS AFTER SUBMISSION. 
102(4), 208(A), 45 U.S.C. 702(4), 718(A) (1970 ED.,SUPP.  III).  /10/
USRA IS REQUIRED TO TRANSMIT THE PLAN WITHIN 90 DAYS AFTER ITS
EFFECTIVE DATE TO THE SPECIAL COURT WHICH, UNDER 209(B), IS GIVEN
EXCLUSIVE JURISDICTION OF ALL "PROCEEDINGS WITH RESPECT TO THE FINAL
SYSTEM PLAN."  45 U.S.C. 719(B) (1970 ED.,SUPP.  III).  THE SPECIAL
COURT "WITHIN 10 DAYS AFTER DEPOSIT . . . OF" CONRAIL SECURITIES AND
USRA OBLIGATIONS "SHALL . . . ORDER THE TRUSTEE OR TRUSTEES OF EACH
RAILROAD IN REORGANIZATION . . . TO CONVEY FORTHWILE" TO CONRAIL "ALL
RIGHT, TITLE, AND INTEREST IN THE RAIL PROPERTIES OF SUCH RAILROAD IN
REORGANIZATION . . ."  DESIGNATED IN THE FINAL SYSTEM PLAN.  303(B), 45
U.S.C. 743(B) (1970 ED.,SUPP.  III). 

4.  THE SPECIAL COURT NEXT DETERMINES WHETHER THE CONVEYANCES OF THE
RAIL PROPERTIES TO CONRAIL "(A) . . . ARE IN THE PUBLIC INTEREST AND
ARE FAIR AND EQUITABLE TO THE ESTATE OF EACH RAILROAD IN REORGANIZATION
IN ACCORDANCE WITH THE STANDARD OF FAIRNESS AND EQUITY APPLICABLE TO
THE APPROVAL OF A PLAN OF REORGANIZATION . . . UNDER SECTION (77) . . .
(OR) (B) WHETHER THE TRANSFERS OR CONVEYANCES ARE MORE FAIR AND
EQUITABLE THAN IS REQUIRED AS A CONSTITUTIONAL MINIMUM."  303(C), 45
U.S.C. 743(C) (1970 ED.,SUPP.  III).  IF THE SPECIAL COURT FINDS THAT
THE TRANSFER IS NOT FAIR AND EQUITABLE, THE SPECIAL COURT MUST
REALLOCATE, OR ORDER ISSUANCE OF ADDITIONAL, CONRAIL SECURITIES AND
USRA OBLIGATIONS (SUBJECT TO THE OVERALL $500 MILLION LIMITATION ON
USRA OBLIGATIONS FOR THIS PURPOSE), OR ENTER A JUDGMENT AGAINST
CONRAIL, OR DECREE A COMBINATION OF THESE REMEDIES.  303(C)(2).  THE
SPECIAL COURT IS NOT AUTHORIZED TO ENTER A JUDGMENT AGAINST THE UNITED
STATES.  SECTION 303 PROVIDES ALSO THAT IF THE SPECIAL COURT DECIDES
THAT THE CONSIDERATION EXCHANGED FOR THE RAIL PROPERTIES IS "MORE FAIR
AND EQUITABLE THAN IS REQUIRED AS A CONSTITUTIONAL MINIMUM,"
303(C)(1)(B), IT SHALL MAKE NECESSARY ADJUSTMENTS SO THAT THE
"CONSTITUTIONAL MINIMUM" IS NOT EXCEEDED.  303(C)(3).  APPEAL FROM
303(C) DETERMINATIONS IS TO THIS COURT.  303(D).  /11/ 

5.  ALTHOUGH RAILROADS IN REORGANIZATION SUBJECT TO THE ACT ARE FREE
TO ABANDON SERVICE AND DISPOSE AS THEY WISH OF ANY RAIL PROPERTIES NOT
DESIGNATED FOR TRANSFER UNDER THE FINAL SYSTEM PLAN, 304(A) - (C), 45
U.S.C. 744(A) - (C) (1970 ED.,SUPP.  III), UNTIL THAT PLAN BECOMES
EFFECTIVE NONE "MAY DISCONTINUE SERVICE OR ABANDON ANY LINE OF RAILROAD
. . . UNLESS . . . AUTHORIZED TO DO SO BY (USRA) AND UNLESS NO AFFECTED
STATE OR LOCAL OR REGIONAL TRANSPORTATION AUTHORITY REASONABLY OPPOSES
SUCH ACTION.  . . ."  304(F). 

     II

        PROCEEDINGS IN THE DISTRICT COURT 

CONSTITUTIONAL QUESTIONS CONCERNING THE ACT ARE RAISED IN THIS
LITIGATION BY PARTIES WITH INTERESTS IN THE PENN CENTRAL TRANSPORTATION
CO. (PENN CENTRAL), THE LARGEST OF THE EIGHT RAILROADS IN
REORGANIZATION.  /12/  THE PRINCIPAL CONTENTION OF THE PLAINTIFFS IN
THE DISTRICT COURT WAS THAT THE RAIL ACT IN TWO RESPECTS EFFECTS A
TAKING OF RAIL PROPERTIES OF PENN CENTRAL WITHOUT PAYMENT OF JUST
COMPENSATION, IN VIOLATION OF THE FIFTH AMENDMENT.  THEY CONTENDED,
FIRST, THAT THE CONRAIL SECURITIES AND USRA OBLIGATIONS AND OTHER
BENEFITS TO BE RECEIVED WOULD NOT BE THE CONSTITUTIONALLY REQUIRED
EQUIVALENT OF THE RAIL PROPERTIES COMPELLED BY 303(B) TO BE
TRANSFERRED.  THIS IS THE "CONVEYANCE TAKING" ISSUE.  THIS CLAIM WAS
REJECTED BY THE DISTRICT COURT AS PREMATURE.  383 F.SUPP.,AT 517 -
518.  THEY CONTENDED, SECOND, THAT A TAKING OF THEIR PROPERTY WITHOUT
JUST COMPENSATION WILL RESULT FROM THE SEVERE INHIBITIONS IMPOSED UPON
DISCONTINUANCE OF SERVICE AND ABANDONMENT OF LINES.  IN PARTICULAR,
THEY CLAIMED THAT 304(F) COMPELS CONTINUATION OF RAIL OPERATIONS
PENDING IMPLEMENTATION OF THE FINAL SYSTEM PLAN EVEN IF EROSION OF THE
PENN CENTRAL ESTATE BEYOND CONSTITUTIONAL LIMITS OCCURS DURING THIS
PERIOD.  THIS IS THE "EROSION TAKING" ISSUE.  THE DISTRICT COURT AGREED
THAT 304(F) REQUIRED CONTINUED OPERATIONS TO THIS EXTENT, AND VIEWED
THE HUGE OPERATING LOSSES ALREADY INCURRED BY PENN CENTRAL AS MAKING
THIS CONTENTION RIPE FOR DETERMINATION, SAYING: 

"(WE ARE PERSUADED THAT A SIGNIFICANT POSSIBILITY EXISTS THAT A
POINT OF EROSION EITHER HAS BEEN OR MAY SOON BE REACHED SO THAT IT CAN
BE SAID THAT (THE CONTENTION OF PLAINTIFFS BELOW) OF INTERIM
UNCONSTITUTIONAL TAKING BY CONTINUED LOSS OPERATIONS IS RIPE FOR
ADJUDICATION."  383 F.SUPP., AT 525 

THE DISTRICT COURT REJECTED THE ARGUMENT OF THE UNITED STATES, USRA,
AND THE PENN CENTRAL TRUSTEES THAT IF IN FACT THE CONSTITUTIONAL LIMIT
OF PERMISSIBLE UNCOMPENSATED EROSION SHOULD BE PASSED, PLAINTIFFS WOULD
HAVE AN ADEQUATE REMEDY AT LAW IN THE COURT OF CLAIMS UNDER THE TUCKER
ACT, 28 U.S.C. 1491.  THE DISTRICT COURT CONSTRUED THE RAIL ACT AS
PRECLUDING A TUCKER ACT REMEDY, STATING: 

"WE ARE PERSUADED THAT THE LEGISLATIVE HISTORY SUPPORTS THE
CONCLUSION THAT CONGRESS INTENDED THAT FINANCIAL OBLIGATIONS BE LIMITED
TO THE EXPRESS TERMS OF THE ACT.  ARTICLE I, SECTION 9, CLAUSE 7 (OF
THE CONSTITUTION) PROVIDES THAT NO MONEY SHALL BE DRAWN FROM THE
TREASURY OF THE UNITED STATES EXCEPT IN CONSEQUENCE OF AN APPROPRIATION
MADE BY LAW.  SECTION 213(B) (OF THE RAIL ACT), AND SECTION 214
ENTITLED 'AUTHORIZATION FOR APPROPRIATIONS' PLACE AN EXPRESS CEILING ON
EXPENDITURES.  SECTION 210 DESCRIBES THE MAXIMUM OBLIGATIONAL AUTHORITY
OF (USRA), AND THE AUTHORIZATION FOR APPROPRIATION IS LIMITED TO 'SUCH
AMOUNTS AS ARE NECESSARY TO DISCHARGE THE OBLIGATIONS OF THE UNITED
STATES ARISING UNDER THIS SECTION.'  (EMPHASIS SUPPLIED.)  JUDICIAL
REVIEW IS DELINEATED WITH SPECIFICITY IN SECTIONS 209(A) AND 303 WITH
NO MENTION OF THE COURT OF CLAIMS."  383 F.SUPP.,AT 528 - 529. 

THE DISTRICT COURT THEREFORE DECLARED 304(F) GOVERNING INTERIM
ABANDMENTS. 

"NULL AND VOID AS VIOLATIVE OF THE FIFTH AMENDMENT OF THE UNITED
STATES CONSTITUTION, TO THE EXTENT THAT IT WOULD REQUIRE CONTINUED
OPERATION OF RAIL SERVICES AT A LOSS IN VIOLATION OF THE CONSTITUTIONAL
RIGHTS OF THE OWNERS AND CREDITORS OF A RAILROAD."  IT CONSEQUENTLY
ENJOINED DEFENDANTS BELOW 

"FROM TAKING ANY ACTION TO ENFORCE THE PROVISIONS OF SECTION 304(F)
. . . WITH RESPECT TO ANY ABANDONMENT, CESSATION, OR REDUCTION OF
SERVICE WHICH HAS BEEN OR MAY HEREAFTER BE DETERMINED BY A COURT OF
COMPETENT JURISDICTION TO BE NECESSARY FOR THE PRESERVATION OF RIGHTS
GUARANTEED BY THE UNITED STATES CONSTITUTION." 

THE DISTRICT COURT ALSO DECLARED THAT 303 RELATING TO THE FINAL
CONVEYANCE OF RAIL PROPERTIES PURSUANT TO THE FINAL SYSTEM PLAN IS 

"NULL AND VOID AS CONTRAVENING THE FIFTH AMENDMENT . . . INSOFAR AS
IT FAILS TO PROVIDE COMPENSATION FOR INTERIM EROSION PENDING FINAL
IMPLEMENTATION OF THE FINAL SYSTEM PLAN . . . ." 

FINALLY, THE DISTRICT COURT ENJOINED USRA "FROM CERTIFYING A FINAL
SYSTEM PLAN TO THE SPECIAL COURT PURSUANT TO SECTION 209(C)."  383
F.SUPP.,AT 530. 

THE RAIL ACT WAS ALSO CHALLENGED IN THE DISTRICT COURT AS NOT
"UNIFORM" WITHIN THE REQUIREMENT OF ART. I, 8, CL. 4, OF THE
CONSTITUTION, WHICH PROVIDES THAT CONGRESS SHALL HAVE THE POWER TO
ENACT "UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES THROUGHOUT THE
UNITED STATES."  THE DISTRICT COURT DISMISSED THIS CONTENTION AS
WITHOUT MERIT EXCEPT AS TO ONE PROVISION OF 207(B).  THE SECTION
PROVIDES THAT IF ANY REORGANIZATION COURT DETERMINES IN THE 180-DAY
PROCEEDINGS UNDER 207(C) THAT THE ACT DOES NOT PROVIDE A FAIR AND
EQUITABLE PROCESS FOR THE REORGANIZATION OF A DEBTOR, THE DEBTOR SHALL
NOT BE REORGANIZED PURSUANT TO THE ACT, AND THE REORGANIZATION COURT
"SHALL DISMISS THE REORGANIZATION PROCEEDING."  THE DISTRICT COURT
DECLARED THIS PART OF 207(B) "NULL AND VOID, AS VIOLATIVE OF ARTICLE I,
FROM ENFORCING, OR TAKING ANY ACTION TO IMPLEMENT, SO MUCH OF SECTION
207(B) . . . AS PURPORTS TO REQUIRE DISMISSAL OF PENDING PROCEEDINGS
FOR REORGANIZATION UNDER SECTION 77 OF THE BANKRUPTCY ACT." 

        III

        THE ISSUES FOR DECISION 

THE MAJOR ISSUES DIVIDING THE PARTIES ARE (1) WHETHER AN ACTION AT
LAW IN THE COURT OF CLAIMS UNDER THE TUCKER ACT, 28 U.S.C. 1491, WILL
BE AVAILABLE TO RECOVER ANY DEFICIENCY OF CONSTITUTIONAL DIMENSION IN
THE COMPENSATION PROVIDED UNDER THE RAIL ACT FOR EITHER THE ALLEGED
"EROSION TAKING" OR THE ALLEGED "CONVEYANCE TAKING," AND (2) IF THE
TUCKER ACT REMEDY IS AVAILABLE, WHETHER IT IS AN ADEQUATE REMEDY.  THE
UNITED STATES, USRA, AND THE PENN CENTRAL TRUSTEES CONTEND THAT IF
RESORT TO A SUPPLEMENTAL REMEDY UNDER THE TUCKER ACT IS NECESSARY, IT
IS BOTH AVAILABLE AND ADEQUATE.  THE PLAINTIFFS BELOW CONTENDED THAT
THE RAIL ACT PRECLUDES RESORT TO THE TUCKER ACT REMEDY, AND IF IT DOES
NOT, THAT THE REMEDY IS INADEQUATE. 

THE SPECIAL COURT, SPEAKING THROUGH JUDGE FRIENDLY, COMPREHENSIVELY
CANVASSED BOTH ISSUES, AND IN A THOROUGH OPINION, CONCLUDED THAT THE
RAIL ACT DOES NOT BAR ANY NECESSARY RESORT TO THE TUCKER ACT REMEDY AND
THAT THE REMEDY IS ADEQUATE.  OUR INDEPENDENT EXAMINATION OF THE ISSUES
BRINGS US TO THE SAME CONCLUSION, SUBSTANTIALLY FOR THE REASONS STATED
BY JUDGE FRIENDLY IN PARTS VII AND VIII - A OF THE SPECIAL COURT
OPINION.  384 F.SUPP.  895, 941 - 953 (1974).  /14/ 

ALSO DISPUTED IS THE DISTRICT COURT'S RULING ON THE UNIFORMITY OF
THE RAIL ACT UNDER THE BANKRUPTCY CLAUSE.  WE HOLD THAT THE CURRENTLY
OPERABLE PORTIONS OF THE ACT ARE UNIFORM.              IV

        A

        THE ALLEGED "EROSION TAKING" 

IN ITS OPENING BRIEF, THE UNITED STATES, SPEAKING FOR ALL FEDERAL
PARTIES EXCEPT USRA, ARGUED THAT THE CASE INVOLVED NO "EROSION TAKING"
BECAUSE, AS A MATTER OF LAW, COMPELLED-LOSS OPERATIONS PENDING
IMPLEMENTATION OF THE FINAL SYSTEM PLAN WOULD NOT CONSTITUTE A TAKING
OF THE PROPERTY OF THE CLAIMANTS AGAINST THE BANKRUPT RAILROAD
ESTATES.  THE ARGUMENT WAS THAT THE GENERAL RULE THAT IF THE RAILROAD
"BE TAKEN TO HAVE GRANTED TO THE PUBLIC AN INTEREST IN THE USE OF THE
RAILROAD IT MAY WITHDRAW ITS GRANT BY DISCONTINUING THE USE WHEN THAT
USE CAN BE KEPT UP ONLY AT A LOSS,"  BROOKS-SCANLON CO. V. RAILROAD
COMM'N OF LOUISIANA, 251 U.S. 396, 399 (1920); SEE ALSO BULLOCK V.
FLORIDA EX REL. RAILROAD COMM'N, 254 U.S. 513 (1921); RAILROAD COMM'N
OF TEXAS V. EASTERN TEXAS R. CO., 264 U.S. 79 (1924), IS QUALIFIED BY
THE REQUIREMENT THAT A RAILROAD ESTATE SUFFER INTERIM LOSSES FOR A
REASONABLE PERIOD PENDING GOOD-FAITH EFFORTS TO DEVELOP A FEASIBLE
REORGANIZATION PLAN IF THE PUBLIC INTEREST IN CONTINUED RAIL SERVICE
JUSTIFIES THE REQUIREMENT.  CONTINENTAL ILLINOIS NAT. BANK & TRUST CO.
V. CHICAGO, R.I. & P.R. CO., 294 U.S. 648, 677 (1935); SEE ALSO RFC V.
DENVER & R.G.W.R. CO., 328 U.S. 495, 535 - 536 (1946); NEW HAVEN
INCLUSION CASES, 399 U.S. 392, 493 (1970).  THE UNITED STATES
MAINTAINED THAT THE RAIL ACT REPRESENTED JUST SUCH A GOOD-FAITH
EFFORT.  IN ITS REPLY BRIEF, AT 3 - 4, HOWEVER, IT ABANDONED THE
POSITION THAT THE FINAL SYSTEM PLAN WAS SURE TO BE IMPLEMENTED WITHIN A
REASONABLE PERIOD: 

"DIFFICULTIES NOW UNFORESEEN AND UNANTICIPATED COULD IN FACT DELAY
FINAL IMPLEMENTATION OF THE FINAL SYSTEM PLAN.  FOR EXAMPLE, CONGRESS
COULD, IN THEORY, SUCCESSIVELY DISAPPROVE SEVERAL PROPOSED FINAL SYSTEM
PLANS.  THUS, WHATEVER THE PROBABILITIES, THE PARTIES AND THIS COURT
HAVE NO ABSOLUTE ASSURANCE THAT THE PLAN WILL IN FACT BE IMPLEMENTED
WITHIN A REASONABLE TIME.  FOR THAT REASON, WE HAVE DETERMINED THAT A
TAKING OF PROPERTY THROUGH INTERIM EROSION, ALTHOUGH EXTREMELY
UNLIKELY, REMAINS A THEORETICAL POSSIBILITY UNDER THE RAIL ACT. 

  "ACCORDINGLY, WE BELIEVE THAT AN INJUNCTION PREVENTING (USRA)

  FROM DENYING APPLICATIONS FOR DISCONTINUANCE OF SERVICE UNDER

  SECTION 304(F) IN THOSE CIRCUMSTANCES MIGHT BE APPROPRIATE

  UNLESS, AS WE CONTEND, A REMEDY FOR ANY OTHERWISE UNCOMPENSATED

  TAKING WILL BE AVAILABLE UNDER THE TUCKER ACT.  WE ARE THEREFORE

  PERSUADED THAT THIS COURT MUST REACH AND DECIDE THE 'TUCKER ACT

  QUESTION' PRESENTED BY THESE APPEALS."  (FOOTNOTE OMITTED.) 

WE CONCLUDE IN ANY EVENT THAT THE AVAILABILITY OF A TUCKER ACT
REMEDY IF THE RAIL ACT EFFECTS AN "EROSION TAKING" IS RIPE FOR
ADJUDICATION.  IT IS TRUE THAT THERE HAS BEEN NO DEFINITION
DETERMINATION THAT EROSION OF THE PENN CENTRAL ESTATE HAS REACHED
UNCONSTITUTIONAL DIMENSIONS--THAT IS, THAT THE ESTATE HAS SUFFERED
LOSSES UNREASONABLE EVEN IN LIGHT OF THE PUBLIC INTEREST IN CONTINUED
RAIL SERVICE PENDING REORGANIZATION.  BUT THE PENN CENTRAL
REORGANIZATION COURT FOUND THAT PENN CENTRAL IS NOT "REORGANIZABLE ON
AN INCOME BASIS WITHIN A REASONABLE TIME UNDER 77 OF THE BANKRUPTCY
ACT."  382 F.SUPP.  831, 842 (ED PA. 1974).  AND IT WAS STIPULATED IN
THE DISTRICT COURT THAT PENN CENTRAL SUSTAINED ORDINARY NET LOSSES FROM
MID-1970 THROUGH 1973 AGGREGATING APPROXIMATELY $850 MILLION, AND THAT
IN THE TWO MONTHS FOLLOWING ENACTMENT OF THE RAIL ACT ON JANUARY 2,
1974, PENN CENTRAL HAD DEFICITS IN NET RAILWAY OPERATING INCOME, TOTAL
INCOME, NET INCOME, AND INCOME AVAILABLE FOR FIXED CHARGES.  IT IS
THEREFORE REASONABLE TO CONCLUDE THAT COMPELLED CONTINUED RAIL
OPERATIONS UNDER THESE CONDITIONS PENDING IMPLEMENTATION OF THE FINAL
SYSTEM PLAN MAY ACCELERATE EROSION OF THE INTERESTS OF PLAINTIFFS BELOW
THROUGH ACCRUAL OF POST-BANKRUPTCY CLAIMS HAVING PRIORITY OVER THEIR
CLAIMS.  THUS, FAILURE TO DECIDE THE AVAILABILITY OF THE TUCKER ACT
WOULD RAISE THE DISTINCT POSSIBILITY THAT THOSE PLAINTIFFS WOULD SUFFER
AN "EROSION TAKING" WITHOUT ADEQUATE ASSURANCE THAT COMPENSATION WILL
EVER BE PROVIDED.  /15/  YET THERE MUST BE AT THE TIME OF TAKING
"REASONABLE, CERTAIN AND ADEQUATE PROVISION FOR OBTAINING
COMPENSATION."  CHEROKEE NATION V. SOUTHERN KANSAS R. CO., 135 U.S.
641, 659 (1890); SEE ALSO JOSLIN MFG. CO. V. CITY OF PROVIDENCE, 262
U.S. 668, 677 (1923); UNITED STATES V. DOW, 357 U.S. 17, 21 (1958). 
THEREFORE WE MUST DETERMINE IF THE TUCKER ACT IS AVAILABLE. 

        B

AVAILABILITY OF THE TUCKER ACT REMEDY FOR ANY "EROSION

      TAKING" 

THE TUCKER ACT, 28 U.S.C. 1491, PROVIDES IN PERTINENT PART: 

     "THE COURT OF CLAIMS SHALL HAVE JURISDICTION TO RENDER
JUDGMENT

  UPON ANY CLAIM AGAINST THE UNITED STATES FOUNDED EITHER UPON THE

  CONSTITUTION, OR ANY ACT OF CONGRESS, OR ANY REGULATION OF AN

  EXECUTIVE DEPARTMENT, OR UPON ANY EXPRESS OR IMPLIED CONTRACT

  WITH THE UNITED STATES, OR FOR LIQUIDATED OR UNLIQUIDATED DAMAGES

  IN CASES NOT SOUNDING IN TORT." 

A CLAIM FOUNDED UPON A TAKING OF PROPERTY FOR PUBLIC USE BY
OPERATION OF THE RAIL ACT WITHOUT JUST COMPENSATION IN VIOLATION OF THE
FIFTH AMENDMENT PLAINLY WOULD FALL WITHIN THE LITERAL WORDS OF "ANY
CLAIM AGAINST THE UNITED STATES FOUNDED . . . UPON THE CONSTITUTION.  .
. ."  THE DISTRICT COURT, HOWEVER, INQUIRED WHETHER THE RAIL ACT
AFFIRMATIVELY PROVIDED THE TUCKER ACT REMEDY, AND HELD THAT TO "READ A
TUCKER ACT REMEDY INTO THE (RAIL) ACT" WOULD BE "JUDICIAL LEGISLATION
ON A GRAND, IF NOT ARROGANT, SCALE."  383 F.SUPP.,AT 529. 

THE DISTRICT COURT MADE THE WRONG INQUIRY.  THE QUESTION IS NOT
WHETHER THE RAIL ACT EXPRESSES AN AFFIRMATIVE SHOWING OF CONGRESSIONAL
INTENT TO PERMIT RECOURSE TO A TUCKER ACT REMEDY.  RATHER, IT IS
WHETHER CONGRESS HAS IN THE RAIL ACT WITHDRAWN THE TUCKER ACT GRANT OF
JURISDICTION TO THE COURT OF CLAIMS TO HEAR A SUIT INVOLVING THE RAIL
ACT "FOUNDED . . . UPON THE CONSTITUTION."  FOR WE AGREE WITH THE
SPECIAL COURT THAT 

"THE TRUE ISSUE IS WHETHER THERE IS SUFFICIENT PROOF THAT CONGRESS
INTENDED TO PREVENT SUCH RECOURSE.  THE (RAIL) ACT BEING ADMITTEDLY
SILENT OF THE POINT, THE ISSUE BECOMES WHETHER THE SCHEME OF THE (RAIL)
ACT, SUPPLEMENTED BY THE LEGISLATIVE HISTORY, SUFFICIENTLY EVIDENCES A
CONGRESSIONAL INTENTION TO WITHDRAW A REMEDY THAT WOULD OTHERWISE
EXIST."  384 F.SUPP.,AT 942  

OUR DECISIONS AFFIRM THAT THIS IS THE CORRECT INQUIRY.  THE GENERAL
RULE IS THAT WHETHER OR NOT THE UNITED STATES SO INTENDED, "(IF THERE
IS A TAKING, THE CLAIM IS 'FOUNDED UPON THE CONSTITUTION' AND WITHIN
THE JURISDICTION OF THE COURT OF CLAIMS TO HEAR AND DETERMINE."  UNITED
STATES V. CAUSBY, 328 U.S. 256, 267 (1946).  "(IF THE AUTHORIZED ACTION
. . . DOES CONSTITUTE A TAKING OF PROPERTY FOR WHICH THERE MUST BE JUST
COMPENSATION UNDER THE FIFTH AMENDMENT, THE GOVERNMENT HAS IMPLIEDLY
PROMISED TO PAY THAT COMPENSATION AND HAS AFFORDED A REMEDY FOR ITS
RECOVERY BY A SUIT IN THE COURT OF CLAIMS."  YEARSLEY V. ROSS
CONSTRUCTION CO., 309 U.S. 18, 21 (1940).  /16/  SEE ALSO HURLEY V.
KINCAID, 285 U.S. 95 (1932).  IN YEARSLEY, THE COURT, SPEAKING THROUGH
MR. CHIEF JUSTICE HUGHES, WENT ON TO HOLD THAT "IT CANNOT BE DOUBTED
THAT THE REMEDY TO OBTAIN COMPENSATION FROM THE GOVERNMENT IS AS
COMPREHENSIVE AS THE REQUIREMENT OF THE CONSTITUTION.  . . ."  309
U.S.,AT 22.  (EMPHASIS SUPPLIED.) 

WE TURN THEN TO THE INQUIRY WHETHER THE RAIL ACT WITHDREW THE TUCKER
ACT REMEDY "THAT WOULD OTHERWISE EXIST."  384 F.SUPP.,AT 942.  THE
ARGUMENT THAT IT SHOULD BE SO READ RESTS ON PROVISIONS OF THE RAIL ACT
SAID PLAINLY TO EVINCE CONGRESS'  DETERMINATION THAT NO FEDERAL FUNDS
BEYOND THOSE EXPRESSLY COMMITTED BY THE ACT WERE TO BE PAID FOR THE
RAIL PROPERTIES. 

THE FIRST PROVISION REFERRED TO IS 209 WHICH PROVIDES FOR THE
IMPANELING OF THE SPECIAL COURT AND THE CONSOLIDATION BEFORE IT OF "ALL
JUDICIAL PROCEEDINGS WITH RESPECT TO THE FINAL SYSTEM PLAN."  THE
ARGUMENT ATTACHES SIGNIFICANCE TO THE OMISSION IN 303 OF ANY AUTHORITY
IN THE SPECIAL COURT TO ENTER A JUDGMENT AGAINST THE UNITED STATES. 
RELIANCE IS ALSO PLACED ON TWO OF THE ACT'S FUNDING PROVISIONS. 
THAT THE "AGGREGATE AMOUNT OF (USRA) OBLIGATIONS . . . WHICH MAY BE
OUTSTANDING AT ANY ONE TIME SHALL NOT EXCEED $1,500,000,000 OF WHICH
THE AGGREGATE AMOUNT ISSUED TO (CONRAIL) SHALL NOT EXCEED
$1,000,000,000 . . .," AND THAT "(ANY MODIFICATION TO (THESE)
LIMITATIONS . . . SHALL BE MADE BY JOINT RESOLUTION ADOPTED BY THE
CONGRESS."  SECTION 214 EXPLICITY APPROPRIATES UP TO $12,500,000 TO THE
SECRETARY OF TRANSPORTATION, TO PAY THE EXPENSES OF "PREPARING THE
REPORTS AND EXERCISING OTHER FUNCTIONS TO BE PERFORMED BY HIM UNDER
THIS CHAPTER," APPROPRIATES UP TO $5,000,000 TO THE INTERSTATE COMMERCE
COMMISSION FOR ITS USE IN CARRYING OUT ITS FUNCTIONS, AND APPROPRIATES
UP TO $26,000,000 TO USRA "FOR PURPOSES OF CARRYING OUT ITS
ADMINISTRATIVE EXPENSES.  . . ." 

BUT THESE PROVISIONS AT LEAST EQUALLY SUPPORT THE INFERENCE THAT
CONGRESS WAS SO CONVINCED THAT THE HUGE SUMS PROVIDED WOULD SURELY
EQUAL OR EXCEED THE REQUIRED CONSTITUTIONAL MINIMUM THAT IT NEVER
FOCUSED UPON THE POSSIBLE NEED FOR A SUIT IN THE COURT OF CLAIMS.  THAT
THIS MAY VERY WELL HAVE BEEN THE CASE IS EVIDENT IN A STATEMENT IN THE
HOUSE REPORT: 

"THE TIMELY IMPLEMENTATION OF THE FINAL SYSTEM PLAN CANNOT BE
OBSTRUCTED BY CONTROVERSY OVER THE PAYMENT FOR THE PROPERTIES.  THE
COMMITTEE IS OF THE OPINION THAT PROVISIONS OF THIS TITLE OF THE (RAIL)
ACT, AND ESPECIALLY THE PROVISION FOR DEFICIENCY JUDGMENT AND PAYMENT
OF OBLIGATIONS OF (USRA) . . . ARE MORE THAN ADEQUATE TO GUARANTEE THAT
THE CREDITORS OF THE BANKRUPT RAILROAD WILL RECEIVE ALL THAT THEY MAY
CONSTITUTIONALLY CLAIM.  IN VIEW OF THESE EXTRAORDINARY PROTECTIONS, NO
LITIGATION SHOULD BE PERMITTED TO DELAY THE FINAL SYSTEM PLAN."  H. R.
REP. NO. 93 - 620, P. 55 (1973) (HEREINAFTER H. REP.). 

THAT INFERENCE ALSO FINDS SUPPORT IN THE PROVISION OF 303(C)(3) THAT
AUTHORIZES THE SPECIAL COURT TO REDUCE PAYMENTS TO BANKRUPT ESTATES IF
THEY "ARE FAIRER AND MORE EQUITABLE THAN IS REQUIRED AS A
CONSTITUTIONAL MINIMUM."  THAT PROVISION SUGGESTS THAT CONGRESS THOUGHT
THE COMPENSATION MADE POSSIBLE BY THE RAIL ACT COULD WELL EXCEED THAT
REQUIRED BY THE CONSTITUTION, AND GAVE NO CONSIDERATION TO WITHDRAWAL
OF THE TUCKER ACT REMEDY BECAUSE IT WAS SURE THE RAIL ACT ITSELF
PROVIDED AT LEAST THE CONSTITUTIONAL MINIMUM COMPENSATION. 

FINALLY, THE MANNER IN WHICH CONGRESS IN 601, 45 U.S.C. 791 (1970
ED.,SUPP.  III), EXPRESSLY ADDRESSED THE RAIL ACT'S "RELATIONSHIP TO
OTHER LAWS" PLAINLY IMPLIES THAT CONGRESS GAVE NO THOUGHT TO
CONSIDERATION OF WITHDRAWAL OF THE TUCKER ACT REMEDY.  SECTION
601(A)(2) PROVIDES THAT THE "ANTITRUST LAWS ARE INAPPLICABLE WITH
RESPECT TO ANY ACTION TAKEN TO FORMULATE OR IMPLEMENT THE FINAL SYSTEM
PLAN . . ."; 601(B) PROVIDES THAT "(THE PROVISIONS OF THE INTERSTATE
COMMERCE ACT AND THE BANKRUPTCY ACT ARE INAPPLICABLE TO TRANSACTIONS
UNDER THIS CHAPTER TO THE EXTENT NECESSARY TO FORMULATE AND IMPLEMENT
THE FINAL SYSTEM PLAN WHENEVER A PROVISION OF ANY SUCH ACT IS
INCONSISTENT WITH THIS CHAPTER"; 601(C) PROVIDES THAT, "(THE PROVISIONS
OF SECTION 4332(2)(C) OF TITLE 42 (NATIONAL ENVIRONMENTAL POLICY ACT OF
1969) SHALL NOT APPLY WITH RESPECT TO ANY ACTION TAKEN UNDER AUTHORITY
OF THIS CHAPTER BEFORE THE EFFECTIVE DATE OF THE FINAL SYSTEM PLAN." 
YET DESPITE THIS CLEAR EVIDENCE THAT CONGRESS WAS AWARE OF THE
NECESSITY TO DEAL EXPRESSLY WITH INCONSISTENT LAWS, CONGRESS NOWHERE
ADDRESSES THE TUCKER ACT QUESTION. 

IT IS ARGUED THAT ANY UNCERTAINTY IN THE SCHEME AND TEXT OF THE RAIL
ACT IS CLEARED UP BY LEGISLATIVE HISTORY FROM THE HOUSE AND THE SENATE
THAT DISCLOSES THAT CONGRESS MEANT THE RAIL ACT TO WITHDRAW THE
JURISDICTION OF THE COURT OF CLAIMS UNDER THE TUCKER ACT.  TO THE
CONTRARY, WE READ THE LEGISLATIVE HISTORY AS DISCLOSING NO MORE THAN A
REPEATEDLY EMPHASIZED BELIEF THAT THE RAIL ACT'S PROVISIONS FOR
COMPENSATION FOR THE RAIL PROPERTIES ASSURED PAYMENT OF THE
CONSTITUTIONAL MINIMUM.  THIS IS PLAINLY THE IMPORT OF THE OFT-STATED
VIEW THAT THE TAXPAYERS WOULD NOT BE UNDULY BURDENED BY THE SUMS
PROVIDED, SEE, E.G., 119 CONG.REC.H. 9741 (NOV. 8, 1973) (REMARKS OF
REP. METCALFE); ID., AT H 9746 (REMARKS OF REP. CONTE); AND ALSO OF
SENATOR HARTKE'S EXPLANATION OF THE CONFERENCE REPORT TO THE SENATE,
119 CONG.REC.S 237823 - 23784 (DEC. 21, 1973) WHICH INCLUDED THE
STATEMENT: 

"IF WE DID NOTHING WHILE CONTINUING TO MANDATE RAIL SERVICE, THERE
IS THE DISTINCT POSSIBILITY IN VIEW OF THE PRIOR ACTION OF CONGRESS
THAT A NUMBER OF THESE PEOPLE COULD MAKE A CLAIM AGAINST THE GOVERNMENT
WHICH COULD BE SUSTAINED IN THE COURT OF CLAIMS."  /17/ AS THE SPECIAL
COURT REMARKED, AND WE AGREE, THIS STATEMENT IN CONTEXT IS "NOT
INCONSISTENT WITH THE VIEW THAT THE SENATOR WAS SO CONVINCED THAT THE
BILL, AS AMENDED IN CONFERENCE, CONTAINED SUCH ADEQUATE COMPENSATION
PROVISIONS THAT A SUIT IN THE COURT OF CLAIMS COULD NOT PREVAIL,
PARTICULARLY IN VIEW OF WHAT HE HAD CHARACTERIZED AS A 'RATHER SLIM'
CHANCE OF THE CREDITORS GETTING THEIR MONEY THROUGH LIQUIDATION, (ID.,
AT S 23783) RATHER THAN AS MEANING THAT SUCH A CLAIM COULD NOT BE
MAINTAINED."  384 F.SUPP.,AT 944. 

WE DO NOT THINK THAT THE ARGUMENT IN SUPPORT OF READING THE RAIL ACT
TO WITHDRAW THE TUCKER ACT REMEDY IS AIDED BY THE COLLOQUY ON THE HOUSE
SIDE BETWEEN THE HOUSE MANAGERS OF THE BILL, 119 CONG.REC.  11876 (DEC.
20, 1973).  /18/  THAT COLLOQUY DOES NOT EVEN CONCERN THE WITHDRAWAL OF
COURT OF CLAIMS JURISDICTION.  IT CONCERNS ONLY THE DEFICIENCY JUDGMENT
AGAINST CONRAIL AND THE POWERS OF THE SPECIAL COURT.     FINALLY,
RELIANCE IS PUT UPON WHAT IS REFERRED TO AS "SUBSEQUENT LEGISLATIVE
HISTORY" INTHE FORM OF STATEMENTS BY CONGRESSMEN DURING OVERSIGHT
HEARINGS OF THE HOUSE SUBCOMMITTEE ON TRANSPORTATION AND AERONAUTICS ON
JUNE 14, 1974, AND ON AN AMICUS BRIEF FILED IN THIS COURT ON BEHALF OF
36 CONGRESSMEN.  BUT POST-PASSAGE REMARKS OF LEGISLATORS, HOWEVER
EXPLICIT, CANNOT SERVE TO CHANGE THE LEGISLATIVE INTENT OF CONGRESS
EXPRESSED BEFORE THE ACT'S PASSAGE.  SEE, E.G., UNITED STATES V. MINE
WORKERS OF AMERICA, 330 U.S. 258, 282 (1947).  SUCH STATEMENTS
"REPRESENT ONLY THE PERSONAL VIEWS OF THESE LEGISLATORS, SINCE THE
STATEMENTS WERE (MADE) AFTER PASSAGE OF THE ACT."  NATIONAL WOODWORK
MANUFACTURERS ASSN. V. NLRB, 386 U.S. 612, 639 N. 34 (1967).  MOREOVER,
DURING ORAL ARGUMENT BEFORE THIS COURT, REPRESENTATIVE ADAMS, SPOKESMAN
FOR THE CONGRESSIONAL GROUP, EXPRESSLY CONCEDED THAT CIRCUMSTANCES
MIGHT ARISE WHEN THE TUCKER ACT REMEDY WOULD BE AVAILABLE: 

     "QUESTION:  SO YOU DO ANTICIPATE A SITUATION WHERE THE TUCKER
ACT WOULD BE AVAILABLE? 

     "MR. ADAMS:  OH, YES.  LET'S SAY, FOR EXAMPLE, THAT AFTER THIS

  IS ALL OVER--AND THIS IS THE THREE-JUDGE COURT'S PROBLEM--THAT IF

  A PARTY COMES IN AND SAYS, YOU HELD US BEYOND THE CONSTITUTIONAL

  LIMIT ON EROSION AND AT THAT POINT WE ARE OF THE OPINION THAT IT

  WENT JUST TOO LONG, IT WAS UNREASONABLE, BUT THAT IS A SPECIFIC

  INDIVIDUAL CASE AT THAT POINT. 

     "QUESTION:  AND SO THE TUCKER ACT, YOU THINK, WOULD BE
AVAILABLE IN THAT SITUATION? 

     "MR. ADAMS:  OF COURSE.  WE DID NO REPEAL THE TUCKER ACT." 
/19/  (EMPHASIS SUPPLIED.) 

IN SUM, WE CANNOT FIND THAT THE LEGISLATIVE HISTORY SUPPORTS THE
ARGUMENT THAT THE RAIL ACT SHOULD BE CONSTRUED TO WITHDRAW THE TUCKER
ACT REMEDY.  THE MOST THAT CAN BE SAID IS THAT THE RAIL ACT IS
AMBIGUOUS ON THE QUESTION.  IN THAT CIRCUMSTANCES, APPLICABLE CANONS OF
STATUTORY CONSTRUCTION REQUIRE US TO CONCLUDE THAT THE RAIL ACT IS NOT
TO BE READ TO WITHDRAW THE REMEDY UNDER THE TUCKER ACT. 

ONE CANON OF CONSTRUCTION IS THAT REPEALS BY IMPLICATION ARE
DISFAVORED.  SEE, E.G., MERCANTILE NATIONAL BANK V. LANGDEAU, 371 U.S.
555, 565 (1963); UNITED STATES V. BORDEN CO., 308 U.S. 188, 198 - 199
(1939); AMELL V. UNITED STATES, 384 U.S. 158, 165 - 166 (1966). 
RATHER, SINCE THE TUCKER ACT AND THE RAIL ACT ARE "CAPABLE OF CO
EXISTENCE, IT IS THE DUTY OF THE COURTS, ABSENT A CLEARLY EXPRESSED
CONGRESSIONAL INTENTION TO THE CONTRARY, TO REGARD EACH AS EFFECTIVE." 
MORTON V. MANCARI, 417 U.S. 535, 551 (1974).  MOREOVER, THE RAIL ACT IS
THE LATER OF THE TWO STATUTES AND WE AGREE WITH THE SPECIAL COURT: 

"A NEW STATUTE WILL NOT BE READ AS WHOLLY OR EVEN PARTIALLY AMENDING
A PRIOR ONE UNLESS THERE EXISTS A 'POSITIVE REPUGNANCY' BETWEEN THE
PROVISIONS OF THE NEW AND THOSE OF THE OLD THAT CANNOT BE RECONCILED. 
. . . THIS PRINCIPLE RESTS ON A SOUND FOUNDATION.  PRESUMABLY CONGRESS
HAD GIVEN SERIOUS THOUGHT TO THE EARLIER STATUTE, HERE THE BROADLY
BASED JURISDICTION OF THE COURT OF CLAIMS.  BEFORE HOLDING THAT THE
RESULT OF THE EARLIER CONSIDERATION HAS BEEN REPEALED OR QUALIFIED, IT
IS REASONABLE FOR A COURT TO INSIST ON THE LEGISLATURE'S USING LANGUAGE
SHOWING THAT IT HAS MADE A CONSIDERED DETERMINATION TO THAT END.  . .
."  384 F.SUPP.,AT 946. 

THE OTHER RELEVANT CANON OF CONSTRUCTION THAT COMES INTO PLAY IS
THAT WHEN A STATUTE IS AMBIGUOUS, "CONSTRUCTION SHOULD GO IN THE
DIRECTION OF CONSTITUTIONAL POLICY."  UNITED STATES V. JOHNSON, 323
U.S. 273, 276 (1944).  THERE ARE CLEARLY GRAVE DOUBTS WHETHER THE RAIL
ACT WOULD BE CONSTITUTIONAL IF A TUCKER ACT REMEDY WERE NOT AVAILABLE
AS COMPENSATION FOR ANY UNCONSTITUTIONAL EROSION NOT COMPENSATED UNDER
THE ACT ITSELF.  IN SUCH CASE, AS THE SPECIAL COURT OBSERVED, "(WHEN
ONE ADMISSIBLE CONSTRUCTION WILL PRESERVE A STATUTE FROM
UNCONSTITUTIONALITY AND ANOTHER WILL PRESERVE A STATUTE FROM
UNCONSTITUTIONALITY AND ANOTHER WILL CONDEMN IT, THE FORMER IS FAVORED
EVEN IF LANGUAGE, . . . AND ARGUABLY THE LEGISLATIVE HISTORY POINT
SOMEWHAT MORE STRONLY IN ANOTHER WAY."  384 F.SUPP.,AT 946.  IN OTHER
WORDS OUR "TASK IS NOT TO DESTROY THE ACT IF WE CAN, BUT TO CONSTRUE
IT, IF CONSISTENT WITH THE WILL OF CONGRESS, SO AS TO COMPORT WITH
CONSTITUTIONAL LIMITATIONS."  CSC V. LETTER CARRIERS, 413 U.S. 548, 571
(1973). 

LYNCH V. UNITED STATES, 292 U.S. 571 (1934), FULLY SUPPORTS OUR
CONCLUSION.  LYNCH, PRESENTED A SITUATION REQUIRING THIS COURT TO
DETERMINE WHETHER A STATUTE THAT EFFECTED AS UNCONSTITUTIONAL TAKING
WAS ALSO TO BE CONSTRUED TO WITHDRAW A CAUSE OF ACTION CREATED BY AN
EARLIER STATUTE.  THE ECONOMY ACT OF 1933, 48 STAT. 11, PROVIDED IN 17
THAT "ALL LAWS GRANTING OR PERTAINING TO YEARLY RENEWABLE TERM
INSURANCE ARE HEREBY REPEALED.  . . ."  DISTRICT COURTS, AFFIRMED BY
THE COURTS OF APPEALS FOR THE FIFTH CIRCUIT, 67 F.2D 490 (1933), AND
THE SEVENTH CIRCUIT, WILNER V. UNITED STATES, 68 F.2D 442 (1934),
DISMISSED, ON THE BASIS OF THIS PROVISION, SUITS BY BENEFICIARIES OF
YEARLY RENEWABLE TERM POLICIES BROUGHT UNDER 405 OF THE WAR RISK
INSURANCE ACT OF 1917, 40 STAT. 410, EXPRESSLY AUTHORIZING SUITS IN THE
DISTRICT COURTS RESPECTING ANY "DISAGREEMENT AS TO A CLAIM UNDER THE
CONTRACT OF INSURANCE."  THE BENEFICIARIES'  CLAIM WAS THAT THERE WAS
AN ACTIONABLE "DISAGREEMENT" WITHIN THE MEANING OF 405 BECAUSE THE
GOVERNMENT HAD VIOLATED THE TERMS OF THE POLICIES BY FAILING TO PAY THE
PREMIUMS WHEN THE INSUREDS BECAME TOTALLY AND PERMANENTLY DISABLED AND
HAD REFUSED PAYMENT OF BENEFITS AFTER THE INSUREDS DIED.  THIS COURT
UNANIMOUSLY REVERSED THE DISMISSALS.  SECTION 17 OF THE ECONOMY ACT WAS
HELD TO EFFECT AN UNCONSTITUTIONAL TAKING OF VESTED PROPERTY RIGHTS IN
THE BENEFICIARIES CREATED BY THE INSURANCE CONTRACTS.  THE QUESTION
THEN BECAME WHETHER 17 HAD REPEALED THE REMEDY OF A SUIT IN THE
DISTRICT COURT PROVIDED BY 405 OF THE INSURANCE ACT.  THE COURT HELD,
SPEAKING THROUGH MR. JUSTICE BRANDEIS, THAT 17 WOULD NOT BE READ AS
DEPRIVING THE BENEFICIARIES OF THAT REMEDY IN THE A ENCE OF A CLEAR
INDICATION FROM CONGRESS THAT THE REMEDY WAS TAKEN AWAY.  THE COURT
SAID: 

     "FIFTH.  THERE IS A SUGGESTION THAT ALTHOUGH, IN REPEALING ALL

  LAWS 'GRANTING OR PERTAINING TO YEARLY RENEWABLE TERM INSURANCE,'

  CONGRESS INTENDED TO TAKE AWAY THE CONTRACTUAL RIGHT, IT ALSO

INTENDED TO TAKE AWAY THE REMEDY; THAT SINCE IT HAD POWER TO TAKE

  AWAY THE REMEDY, THE STATUTE SHOULD BE GIVEN EFFECT TO THAT

  EXTENT, EVEN IF VOID INSOFAR AS PURPORTED TO TAKE AWAY THE

  CONTRACTUAL RIGHT.  THE SUGGESTION IS AT WAR WITH SETTLED RULES

  OF CONSTRUCTION.  IT IS TRUE THAT A STATUTE BAD IN PART IS NOT

  NECESSARILY VOID IN ITS ENTIRETY.  A PROVISION WITHIN THE

  LEGISLATIVE POWER MAY BE ALLOWED TO STAND IF IT IS SEPARABLE FROM

  THE BAD.  BUT NO PROVISION HOWEVER UNOBJECTIONABLE IN ITSELF, CAN

  STAND UNLESS IT APPEARS BOTH THAT, STANDING ALONE, THE PROVISION

CAN BE GIVEN LEGAL EFFECT AND THAT THE LEGISLATURE INTENDED THE

  UNOBJECTIONABLE PROVISION TO STAND IN CASE OTHER PROVISIONS HELD

  BAD SHOULD FALL.  DORCHY V. KANSAS, 264 U.S. 286, 288, 290. 

  HERE, BOTH THOSE ESSENTIALS ARE ABSENT.  THERE IS NO SEPARATE

  PROVISION IN 17 DEALING WITH THE REMEDY; AND IT DOES NOT APPEAR

  THAT CONGRESS WISHED TO DENY THE REMEDY IF THE REPEAL OF THE

  CONTRACTUAL RIGHT WAS HELD VOID UNDER THE FIFTH AMENDMENT."  292

  U.S.,AT 586. 

SIMILARLY, "(THERE IS NO SEPARATE PROVISION IN (THE RAIL ACT)
DEALING WITH THE (TUCKER ACT) REMEDY; AND IT DOES NOT APPEAR (FROM THE
STATUTE OR ITS LEGISLATIVE HISTORY) THAT CONGRESS WISHED TO DENY THE
REMEDY" IF THE RAIL ACT SHOULD CAUSE AN "EROSION TAKING" THAT WOULD
REQUIRE THE PAYMENT OF JUST COMPENSATION. 

WE ACCORDINGLY HOLD THAT THE TUCKER ACT REMEDY IS NOT BARRED BY THE
RAIL ACT BUT IS AVAILABLE TO PROVIDE JUST COMPENSATION FOR ANY "EROSION
TAKING"  EFFECTED BY THE RAIL ACT. 

      V

        A

        THE ALLEGED "CONVEYANCE TAKING" 

THE DISTRICT COURT DECLINED TO DECIDE WHETHER THE PROVISIONS
GOVERNING THE PROVISIONS GOVERNING THE PROCEDURES FOR AND TERMS OF THE
FINAL ONVEYANCE OF RAIL PROPERTIES TO CONRAIL (THE "CONVEYANCE TAKING"
ISSUE) VIOLATE THE FIFTH AMENDMENT, THUS RENDERING THE RAIL ACT INVALID
IN ITS ENTIRETY.  /20/  THE DISTRICT COURT WAS "PERSUADED THAT THESE
ISSUES ARE PREMATURE."  383 F.SUPP.,AT 517. 

BRIEFLY, THE CHALLENGES TO THE FINAL CONVEYANCE PROVISIONS ASSERT
THAT THE RAIL ACT IS BASICALLY AN EMINENT DOMAIN STATUTE AND, BECAUSE
COMPENSATION IS NOT IN CASH BUT LARGELY IN STOCK OF AN UNPROVED ENTITY,
WILL NECESSARILY WORK AN UNCONSTITUTIONAL TAKING.  /21/  A VARIANT OF
THE ARGUMENT IS THAT, EVEN IF A REORGANIZATION STATUTE, THE RAIL ACT
WOULD BE UNCONSTITUTIONAL UNLESS THE TUCKER ACT REMEDY IS NOW HELD TO
ASSURE PAYMENT OF ANY AMOUNT BY WHICH THE MARKET VALUE OF STOCKS AND
SECURITIES AWARDED BY THE SPECIAL COURT IS LESS THAN THE VALUE OF THE
RAIL PROPERTIES CONVEYED.  THE NEW HAVEN TRUSTEE GOES FURTHER; HE
ARGUES THAT EVEN IF A REORGANIZATION STATUTE, THE RAIL ACT VIOLATES
SUBSTANTIVE DUE PROCESS BY FAILING TO ASSURE THE "FAIR AND EQUITABLE
EQUIVALENT" OF THE RAIL PROPERTIES VALUED AT THEIR "HIGHEST AND BEST
USE."  THE NEW HAVEN TRUSTEE ALSO CONTENDS THAT THE CONVEYANCE
PROVISIONS CONSTITUTE A TAKING SUCH AS THAT THREATENED BY INTERIM
EROSION; THEY REQUIRE OPERATIONS OF THE RAILROAD TO CONTINUE, ALBEIT IN
A DIFFERENT FORM, EVEN IF THE LIQUIDATION VALUE FOR "HIGHEST AND BEST
USE" IS GREATER THAN THE VALUE OF THE RAILROAD AS A GOING CONCERN. 
FINALLY, THE NEW HAVEN TRUSTEE AND THE CREDITOR PARTIES CONTEND THAT
THE CONVEYANCE PROVISIONS DENY PROCEDURAL DUE PROCESS, BECAUSE THEY
MANDATE THE FINAL CONVEYANCE BEFORE ANY MEANINGFUL DETERMINATION OF ITS
FAIRNESS, AND BECAUSE NO PROVISION IS MADE FOR CREDITOR OR STOCKHOLDER
CONSIDERATION OF OR VOTING UPON THE FINAL SYSTEM PLAN. 

ALL OF THE PARTIES NOW URGE THAT THE "CONVEYANCE TAKING" ISSUES ARE
RIPE FOR ADJUDICATION.  HOWEVER, BECAUSE ISSUES OF RIPENESS INVOLVE, AT
LEAST IN PART, THE EXISTENCE OF A LIVE "CASE OR CONTROVERSY,"  /22/  WE
CANNOT RELY UPON CONCESSIONS OF THE PARTIES AND MUST DETERMINE WHETHER
THE ISSUES ARE RIPE FOR DECISION IN THE "CASE OR CONTROVERSY" SENSE. 
FURTHER, TO THE EXTENT THAT QUESTIONS OF RIPENESS INVOLVE THE EXERCISE
OF JUDICIAL RESTRAINT FROM UNNECESSARY DECISION OF CONSTITUTIONAL
ISSUES, /23/  THE COURT MUST DETERMINE WHETHER TO EXERCISE THAT
RESTRAINT AND CANNOT BE BOUND BY THE WISHES OF THE PARTIES. 

THE DISTRICT COURT'S HOLDING OF PREMATURITY WAS INFLUENCED BY THE
STATUTORY SCHEME THAT REQUIRES SEVERAL DECISIONAL STEPS BEFORE THE
FINAL CONVEYANCE.  THE POSSIBILITY THAT THE REORGANIZATION COURT MIGHT
DETERMINE UNDER 207(B) THAT THE RAIL ACT PROCESS IS NOT FAIR AND
EQUITABLE TO THE RAILROAD ESTATE, OR THAT CONGRESS MIGHT DISAPPROVE THE
FINAL SYSTEM PLAN, 208(A), OR THAT THE SPECIAL COURT WOULD NOT ORDER
THE FINAL CONVEYANCE PURSUANT TO 303(B), LED THE DISTRICT COURT TO
CONCLUDE THAT THE QUESTION WHETHER THE FINAL CONVEYANCE PROVISIONS ARE
CONSTITUTIONAL WAS "TOO SPECULATIVE TO WARRANT ANTICIPATORY JUDICIAL
DETERMINATIONS."  ECCLES V. PEOPLES BANK, 333 U.S. 426, 432 (1948). 
/24/ 

BUT SUBSEQUENT TO THE DISTRICT COURT'S OPINION, THE PENN CENTRAL
REORGANIZATION COURT DETERMINED THAT THE RAIL ACT DID NOT PROVIDE A
PROCESS THAT WOULD BE FAIR AND EQUITABLE TO THE ESTATE.  IN RE PENN
CENTRAL TRANS.  CO., 382 F.SUPP.  856 (ED PA. 1974).  ON APPEAL TO THE
SPECIAL COURT UNDER 207(B), THAT DETERMINATION HAS BEEN REVERSED,
ALTHOUGH THE SPECIAL COURT HAS NOT RENDERED ITS JUDGMENT, PENDING OUR
DECISION OF THIS CASE.  384 F.SUPP.,AT 958.  SEE N. 14, SUPRA. 

WE AGREE WITH THE PARTIES THAT THIS CHANGE IN CIRCUMSTANCE HAS
SUBSTANTIALLY ALTERED THE POSTURE OF THE CASE AS REGARDS THE MATURITY
OF THE FINAL-CONVEYANCE ISSUES.  WHATEVER MAY HAVE BEEN THE CASE AT THE
TIME OF THE DISTRICT COURT DECISION, THERE CAN BE LITTLE DOUBT, FOR
REASONS TO BE DETAILED, THAT SOME OF THE "CONVEYANCE TAKING"  ISSUES
CAN AND MUST BE DECIDED AT THIS TIME.  AND, SINCE RIPENESS IS
PECULIARLY A QUESTION OF TIMING, IT IS THE SITUATION NOW RATHER THAN
THE SITUATION AT THE TIME OF THE DISTRICT COURT'S DECISION THAT MUST
GOVERN.  /25/ 

FIRST, THE IMPLEMENTATION OF THE RAIL ACT WILL NOW LEAD INEXORABLY
TO THE FINAL CONVEYANCE, ALTHOUGH THE EXACT DATE OF THAT CONVEYANCE
CANNOT BE PRESENTLY DETERMINED.  IT IS TRUE THAT CONGRESS CAN REJECT
THE FIRST PLAN PRESENTED TO IT BY THE USRA, 208(A), AND THAT THE RAIL
ACT, WHILE PRESCRIBING WITH PRECISION THE TIMING OF THE PRESENTATION OF
THAT PLAN, 207(C) AND (D), DOES NOT MANDATE THE PRESENTATION PF
SUCCESSIVE PLANS AT ANY PARTICULAR TIME.  THE RAIL ACT DOES, HOWEVER,
CONTEMPLATE THAT USRA WILL CONTINUE TO PRESENT PLANS, 208(B), UNTIL ONE
BECOMES "EFFECTIVE,"  209(A).  THUS, WE MUST ASSUME THERE WILL BE
COMPLIANCE WITH THE RAIL ACT'S MANDATORY TERMS IN THIS RESPECT AND THAT
A FINAL SYSTEM PLAN WILL AT SOME TIME BE CERTIFIED TO THE SPECIAL
COURT.  209(C).  /26/ 

SECOND, THE SPECIAL COURT IS MANDATED TO ORDER THE CONVEYANCE OF
RAIL PROPERTIES INCLUDED IN THE FINAL SYSTEM PLAN AND IS GRANTED NO
DISCRETION NOT TO ORDER THE TRANSFER.  /27/  WHILE MANDATORY LANGUAGE
DOES NOT NECESSARILY DENY A COURT OF EQUITY FLEXIBILITY, HECHT CO. V.
BOWLES, 321 U.S. 321, 329 (1944), THE CENTRAL SCHEME OF THE RAIL ACT
DEFERS DECISION OF ANY CONTROVERSIES OVER THE TERMS OF THE TRANSFER OF
RAIL PROPERTIES UNTIL AFTER THE TRANSFER HAS OCCURRED.  H. REP. 55; S.
REP. NO. 93 - 601, P. 34 (1973) (HEREINAFTER S. REP.).  /28/  THE
SPECIAL COURT'S OPINION SUGGESTS THAT THE MANDATORY ORDER TO CONVEY
PROBABLY COULD NOT PREVENT THE SPECIAL COURT FROM REFUSING TO ORDER THE
CONVEYANCE, INDIRECTLY IF NOT BY A DIRECT INJUNCTION, IF IT WERE
CONVINCED THAT APPELLEES'  CONSTITUTIONAL RIGHTS WERE CERTAIN TO BE
VIOLATED.  384 F.SUPP.,AT 933 - 934; MARBURY V. MADISON, 1 CRANCH 137
(1803).  BUT THE POSSIBILITY THAT A COURT MAY LATER DECLINE TO ENFORCE
THE RAIL ACT AS WRITTEN BECAUSE OF ITS UNCONSTITUTIONALITY CANNOT
CONSTITUTE A CONTINGENCY ITSELF PRETERMITTING EARLIER CONSIDERATION OF
THE CONSTITUTIONALITY OF THE ACT.  CF. ALBERTSON V. SACB, 382 U.S. 70,
76 - 77 (1965).     IT APPEARS, THEN, THAT THE CONVEYANCE OF PENN
CENTRAL'S RAIL PROPERTIES TO CONRAIL CANNOT BE PREVENTED BY THE DEBTOR
OR ITS CREDITORS OR STOCKHOLDER; AND, WHILE THE EXACT TERMS OF THE
CONVEYANCE REMAIN TO BE DECIDED, AN ORDER OF THE SPECIAL COURT
DIRECTING THE CONVEYANCE IS VIRTUALLY A CERTAINTY.  THE RAIL ACT
EMPOWERS NO COURT, INCLUDING THIS COURT, TO PREVENT IT. 

THUS, OCCURENCE OF THE CONVEYANCE ALLEGEDLY VIOLATIVE OF FIFTH
AMENDMENT RIGHTS IS IN NO WAY HYPOTHETICAL OR SPECULATIVE.  WHERE THE
INEVITABILITY OF THE OPERATION OF A STATUTE AGAINST CERTAIN INDIVIDUALS
IS PATENT, IT IS IRRELEVANT TO THE EXISTENCE OF A JUSTICIABLE
CONTROVERSY THAT THERE WILL BE A TIME DELAY BEFORE THE DISPUTED
PROVISIONS WILL COME INTO EFFECT.  PENNSYLVANIA V. WEST VIRGINIA, 262
U.S. 553, 592 - 593 (1923); PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510,
536 (1925); CARTER V. CARTER COAL CO., 298 U.S. 238, 287 (1936).  "ONE
DOES NOT HAVE TO AWAIT THE CONSUMMATION OF THREATENED INJURY TO OBTAIN
PREVENTIVE RELIEF.  IF THE INJURY IS CERTAINLY IMPENDING THAT IS
ENOUGH."  PENNSYLVANIA V. WEST VIRGINIA, SUPRA, AT 592.  /29/ 

TRUE, THERE ARE SITUATIONS WHERE, EVEN THOUGH AN ALLEGEDLY INJURIOUS
EVENT IS CERTAIN TO OCCUR, THE COURT MAY DELAY RESOLUTION OF
CONSTITUTIONAL QUESTIONS UNTIL A TIME CLOSER TO THE ACTUAL OCCURRENCE
OF THE DISPUTED EVENT, WHEN A BETTER FACTUAL RECORD MIGHT BE
AVAILABLE.  CF. PUBLIC AFFAIRS PRESS V. RICKOVER, 369 U.S. 111 (1962). 
SEVERAL FACTORS MILITATE, HOWEVER, AGAINST THAT COURSE IN THIS CASE. 

FIRST, DECISIONS TO BE MADE NOW OR IN THE SHORT FUTURE MAY BE
AFFECTED BY WHETHER OR NOT THE "CONVEYANCE TAKING" ISSUES ARE NOW
DECIDED.  THE CONSTITUTIONALITY OF THE FINAL CONVEYANCE MAY BE
INTERWOVEN WITH THE VALIDITY OF THE ABANDONMENT PROVISIONS.  SEE N. 24,
SUPRA.  THE PENN CENTRAL TRUSTEES MAY DELAY EXPENDING FUNDS FOR
MAINTENANCE IN THE INTERVAL BEFORE THE FINAL CONVEYANCE IF
CONSTITUTIONAL DOUBTS LINGER ABOUT ULTIMATE REORGANIZATION UNDER THE
RAIL ACT.  SEE REPLY BRIEF FOR PENN CENTRAL TRUSTEES 12. 

SECOND, THE ACT IS A CAREFULLY STRUCTURED METHOD FOR PLANNING AND
IMPLEMENTING A REORGANIZATION SCHEME.  IT NECESSITATES THE PRESENT
DENIAL TO THE RAILROADS IN REORGANIZATION OF OPTIONS OTHERWISE
AVAILABLE.  FOR EXAMPLE, THE NEW HAVEN TRUSTEE FILED IN THE DISTRICT
COURT A MOTION TO DISMISS THE 77 PROCEEDING, AND TO SET UP AN EQUITY
RECEIVERSHIP TO LIQUIDATE PENN CENTRAL'S ASSETS.  SO LONG AS
REORGANIZATION UNDER THE RAIL ACT REMAINS POSSIBLE, AN EQUITY
RECEIVERSHIP IS NOT AVAILABLE. 

THIRD, AND PARTICULARLY SIGNIFICANT, BECAUSE OF THE STRUCTURE OF THE
ACT THERE IS NO BETTER TIME TO DECIDE THE CONSTITUTIONALITY OF THE
ACT'S MANDATORY CONVEYANCE SCHEME TO MINIMIZE OR PREVENT IRREPARABLE
INJURY.  THE PRECISE CONTOURS OF THE FINAL SYSTEM PLAN WILL NOT BE
KNOWN UNTIL SHORTLY BEFORE ITS CERTIFICATION TO THE SPECIAL COURT. 
/30/  UNTIL THAT PLAN HAS BEEN FINALLY DEVELOPED, THE COURTS WILL NOT
HAVE ANY MORE SETTLED FACTS CONCERNING THE RAIL PROPERTIES TO BE
CONVEYED, THE VALUATION OF THOSE PROPERTIES, OR THE VALUE OF CONRAIL
STOCK AND OTHER SECURITIES TO BE TRANSFERRED TO THE PENN CENTRAL ESTATE
THAN THEY DO NOW. 

AFTER THE FINAL SYSTEM PLAN IS EFFECTIVE, THE RAIL ACT PROHIBITS
INITIAL JUDICIAL REVIEW OF ISS TERMS EXCEPT BY THE SPECIAL COURT. 
209(A), 303(B)(2).  AND THIS REVIEW IS TO OCCUR AFTER CONVEYANCE, NOT
BEFORE.  /31/  FURTHER, AS ALL PARTIES AGREE, THE CONVEYANCE, BECAUSE
OF ITS COMPLEXITY AND BECAUSE OF THE LONG TIME LAPSE PROBABLE BEFORE
VALUATION REVIEW IS COMPLETED, IN PRACTICAL EFFECT WILL BE IRREVERSIBLE
ONCE IT IS MADE. 

THUS, WE WILL BE IN NO BETTER POSITION LATER THAN WE ARE NOW TO
CONFRONT THE VALIDITY OF THE FINAL-CONVEYANCE PROVISIONS.  RATHER,
DELAY IN DECISION WILL CREATE THE SERIOUR RISK THAT CONSIDERATION OF
THE VALIDITY OF THOSE PROVISIONS MAY EITHER BE TOO HASTY TO AFFORD
PROTECTION OF RIGHTS OR TOO LATE TO PREVENT THE CONVEYANCE OR ASSURE
COMPENSATION IF THE RAIL ACT WERE FOUND UNCONSTITUTIONAL.  /32/ 

WE HOLD, THEREFORE, THAT THE BASIC "CONVEYANCE TAKING" ISSUES ARE
NOW RIPE FOR ADJUDICATION.  THIS DOES NOT MEAN HOWEVER THAT WE NEED
DECIDE NOW ALL OF THE CONTENTIONS PRESSED UPON US.  "EVEN WHERE SOME OF
THE PROVISIONS OF A COMPREHENSIVE LEGISLATIVE ENACTMENT ARE RIPE FOR
ADJUDICATION, PORTIONS OF THE ENACTMENT NOT IMMEDIATELY INVOLVED ARE
NOT THEREBY THROWN OPEN FOR A JUDICIAL DETERMINATION OF
CONSTITUTIONALITY."  COMMUNIST PARTY V. SACB, 367 U.S. 1, 71 (1961). 

FOR EXAMPLE, THE CONTROVERSY OVER THE PROPER VALUATION THEORY TO BE
APPLIED TO BOTH THE RAIL PROPERTIES AND THE STOCK OF CONRAIL PROVIDED
AS COMPENSATION DEPENDS UPON CONTINGENCIES THAT ARGUE FORCEFULLY FOR
POSTPONEMENT OF ITS RESOLUTION.  THE PARTIES HAVE STIPULATED THAT IT
WILL BE IMPOSSIBLE TO ASCERTAIN UNTIL THE FINAL SYSTEM PLAN IS
EFFECTIVE WHICH RAIL PROPERTIES WILL BE TRANSFERRED TO CONRAIL, OR
THEIR VALUE ON ANY VALUATION THEORY, OR THE VALUE OF THE CONSIDERATION
TO BE EXCHANGED FOR THE RAIL PROPERTIES.  APP. 205, 319, 371.  THUS, IT
CANNOT BE DETERMINED NOW WHAT IMPACT ANY PARTICULAR THEORY OF VALUATION
MAY HAVE WHEN APPLIED TO EITHER SIDE OF THE EQUATION, NOR CAN WE KNOW
WHERE THE INTERESTS OF THE VARIOUS PARTIES LIE--THAT IS, WHICH METHODS
OF VALUATION WOULD RESULT IN HIGHER COMPENSATION TO THE ESTATE OR LOWER
COST TO CONRAIL.  RULINGS ON THESE QUESTIONS WOULD PLAINLY BE RULINGS
UPON "HYPOTHETICAL SITUATIONS THAT MAY OR MAY NOT (ARISE)." 
LONGSHOREMEN'S UNION V. BOYD, 347 U.S. 222, 224 (1954). 

MOREOVER, VALUATION ISSUES PECULIARLY REQUIRE A MUCH MORE DEVELOPED
RECORD THAN HAS BEEN PREPARED.  WITHOUT EVIDENCE OF ACTUAL FIGURES
SUPPORTING VARIOUS VALUATION THEORIES, A COURT IS NOT ABLE TO DISCERN
"WHAT LEGAL ISSUES IT IS DECIDING, WHAT EFFECT ITS DECISION WILL HAVE
ON THE ADVERSARIES, (OR) SOME USEFUL PURPOSE TO BE ACHIEVED IN DECIDING
THEM."  PUBLIC SERVICE COMM'N V. WYCOFF CO., 344 U.S. 237, 244 (1952). 
CLEARLY THE RECORD ON THESE ISSUES DOES NOT YET PROVIDE THE "CONFINING
CIRCUMSTANCES OF PARTICULAR SITUATIONS," COMMUNIST PARTY V. SACB,
SUPRA, AT 72, WHICH BEST INFORM CONSTITUTIONAL ADJUDICATION. 

FINALLY, THERE WILL BE AMPLE OPPORTUNITY LATER TO LITIGATE VALUATION
CONTROVERSIES AFTER THE FACTUAL RECORD HAS MATURED.  THE RAIL ACT IN
TERMS VESTS THE SPECIAL COURT WITH THE INITIAL RESPONSIBILITY FOR
VALUATION DETERMINATIONS, /33/  SUBJECT TO REVIEW BY THIS COURT.  IN
THAT CIRCUMSTANCE, WE SHOULD SURELY AWAIT THE SPECIAL COURT'S
DETERMINATIONS.  PUBLIC SERVICE COMM'N V. WYCOFF CO., SUPRA, AT 246. 
WERE WE TO ATTEMPT DECISIONS OF VALUATION QUESTIONS BEFORE THE SPECIAL
COURT'S DETERMINATIONS, WE WOULD NECESSARILY BE FORCED TO A SPECULATIVE
INTERPRETATION OF A STATUTE NOT CLEAR ON THE SUBJECT OF VALUATION
BEFORE THE COURT ENTRUSTED WITH ITS CONSTRUCTION HAS GIVEN US THE
BENEFIT OF ITS VIEWS.  /34/  CF. PUBLIC SERVICE COMM'N V. WYCOFF CO.,
SUPRA; GREAT ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S. 412
(1937). 

IN SUM, OF THE "CONVEYANCE TAKING" ISSUES, WE HOLD RIPE FOR
ADJUDICATION THE QUESTIONS (A) OF THE AVAILABILITY OF THE TUCKER ACT
REMEDY IF THE CONSIDERATION EXCHANGED UPON FINAL CONVEYANCE OF THE RAIL
PROPERTIES IS LESS THAN THE CONSTITUTIONAL MINIMUM, (B) WHETHER STOCKS,
HOWEVER VALUED, CAN BE PART OF THE CONSIDERATION FOR THE RAIL
PROPERTIES, AND (C) WHETHER PROCEDURAL DUE PROCESS WILL BE DENIED BY
THE STATUTORY PROCESS FOR CONVEYANCE.  WE HOLD FURTHER THAT DECISION OF
THE QUESTIONS CONCERNING THE METHOD OF VALUATION TO BE APPLIED TO
EITHER THE RAIL PROPERTIES OR THE CONSIDERATION THEREFOR IS PREMATURE. 

        B

        AVAILABILITY OF TUCKER ACT REMEDY FOR ANY "CONVEYANCE

           TAKING" 

WHETHER THE RAIL ACT PRECLUDES THE AVAILABILITY OF THE TUCKER ACT
REMEDY FOR ANY AMOUNT BY WHICH THE CONSIDERATION EXCHANGED FOR THE RAIL
PROPERTIES FINALLY CONVEYED FALLS SHORT OF THE CONSTITUTIONAL MINIMUM
NEED NOT DETAIN US.  THE REASONS THAT LED TO OUR CONCLUSION THAT THE
RAIL ACT, INSOFAR AS IT MAY WORK AN UNCONSTITUTIONAL TAKING DUE TO
INTERIM EROSION, DOES NOT RENDER A TUCKER ACT REMEDY UNAVAILABLE APPLY
EQUALLY TO THE "CONVEYANCE TAKING" ISSUE.  NO PARTY HAS SUGGESTED THAT
A DIFFERENCE IN RESULT CAN BE SUPPORTED.  THE RAIL ACT AUTHORIZES
INCLUSION IN THE FINAL SYSTEM PLAN OF DIFFERENT KINDS OF CONSIDERATION
IN EXCHANGE FOR THE RAIL PROPERTIES, SUBJECT TO ADJUSTMENT BY THE
SPECIAL COURT TO ASSURE FAIRNESS AND EQUITY.  CONGRESS FULLY EXPECTED
THAT THIS CONSIDERATION WOULD PROVIDE THE MINIMUM COMPENSATION REQUIRED
BY THE CONSTITUTION; IT WISHED TO PROVIDE NO MORE.  IF, HOWEVER, THAT
HOPEFUL EXPECTATION SHOULD NOT BE FULFILLED, AND THE CONSIDERATION
EXCHANGED FOR THE RAIL PROPERTIES SHOULD PROVE TO BE LESS THAN THE
CONSTITUTIONAL MINIMUM, THE TUCKER ACT WILL BE AVAILABLE AS THE
JURISDICTIONAL BASIS FOR A SUIT IN THE COURT OF CLAIMS FOR A CHAS AWARD
TO COVER ANY CONSTITUTIONAL SHORTFALL. 

        C

        ADEQUACY OF THE TUCKER ACT REMEDY FOR "CONVEYANCE TAKING" 

IT IS ARGUED, HOWEVER, THAT, EVEN IF A TUCKER ACT REMEDY REMAINS
OPEN, THE REMEDY IS INADEQUATE BECAUSE IT FAILS TO CURE BASIC
DEFICIENCIES IN THE CONVEYANCE PROVISIONS OF THE RAIL ACT.  /35/  WE
HOLD, TO THE CONTRARY, THAT WHILE THE CONVEYANCE PROVISIONS OF THE RAIL
ACT MIGHT RAISE SERIOUS CONSTITUTIONAL QUESTIONS IF A TUCKER ACT SUIT
WERE PRECLUDED, THE AVAILABILITY OF THE TUCKER ACT GUARANTEES AN
ADEQUATE REMEDY AT LAW FOR ANY TAKING WHICH MIGHT OCCUR AS A RESULT OF
THE FINAL-CONVEYANCE PROVISIONS.  FURTHER, WITH THE TUCKER ACT REMEDY,
THE PAYMENT OF "FAIR AND EQUITABLE CONSIDERATION" IN COMPLIANCE WITH
THE REORGANIZATION STATUTES IS ASSURED, AND PROCEDURAL DUE PROCESS IS
SATISFIED. 

PRIMARILY, IT IS CONTENDED THAT THE TUCKER ACT REMEDY IS INADEQUATE
BECAUSE THE "CONVEYANCE TAKING" IS AN EXERCISE OF THE EMINENT DOMAIN
POWER AND THEREFORE REQUIRES FULL CASH PAYMENT FOR THE RAIL
PROPERTIES.  /36/  SINCE OUR REASONS SUPPORTING THE AVAILABILITY OF THE
TUCKER ACT REMEDY ASSUME THAT THE BASIC COMPENSATION SCHEME OF THE ACT
IS VALID BUT COULD RESULT IN PAYMENT OF LESS THAN THE CONSTITUTIONAL
MINIMUM, IT MIGHT INDEED HE INCONSISTENT WITH THE RAIL ACT TO SUPPOSE
THAT A TUCKER ACT SUIT WOULD LIE FOR THE ENTIRE VALUE, IN CASH, OF THE
RAIL PROPERTIES. 

THIS ARGUMENT FAILS, HOWEVER, FOR TWO REASONS.  FIRST, IT IS EXTREMELY
QUESTIONABLE WHETHER, EVEN IF THE RAIL ACT WERE ON ITS FACE AN
ACQUISITION OF PRIVATE PROPERTY FOR PUBLIC USE, THE ENTIRE VALUE OF THE
PROPERTY ACQUIRED WOULD HAVE TO BE PAID IN CASH.  MORE IMPORTANT, WE
BELIEVE THAT THERE IS NOTHING IN THE ACT FUNDAMENTALLY AT ODDS WITH THE
EXPRESSED PURPOSE OF CONGRESS TO SUPPLEMENT THE REORGANIZATION LAWS,
SEE H. REP. 29, AND, WITH THE TUCKER ACT, THE RAIL ACT IS VALID AS A
REORGANIZATION STATUTE. 

NO DECISION OF THIS COURT HOLDS THAT COMPENSATION OTHER THAN MONEY
IS AN INADEQUATE FORM OF COMPENSATION UNDER EMINENT DOMAIN STATUTES. 
STATEMENTS CAN BE FOUND IN OPINIONS THAT THE COMPENSATION "MUST BE A
FULL AND PERFECT EQUIVALENT FOR THE PROPERTY TAKEN," MONONGAHELA
NAVIGATION CO. V. UNITED STATES, 148 U.S. 312, 326 (1893); MUST
REIMBURSE "THE FULL AND PERFECT EQUIVALENT IN MONEY OF THE PROPERTY
TAKEN," UNITED STATES V. MILLER, 317 U.S. 369, 373 (1943); AND MUST BE
THE "FULL MONETARY EQUIVALENT OF THE PROPERTY TAKEN," UNITED STATES V.
REYNOLDS, 397 U.S. 14, 16 (1970); SEE ALSO ALMOTA FARMERS ELEVATOR &
WAREHOUSE CO. V. UNITED STATES, 409 U.S. 470, 473 (1973).  /37/  YET,
IN NONE OF THESE CASES WAS COMPENSATION IN A FORM OTHER THAN CASH AT
ISSUE.  THE CLEAR IMPLICATION OF OTHER DECISIONS IS THAT CONSIDERATION
OTHER THAN CASH--FOR EXAMPLE, ANY SPECIAL BENEFITS /38/  TO A PROPERTY
OWNER'S REMAINING PROPERTIES--MAY BE COUNTED IN THE DETERMINATION OF
JUST COMPENSATION.  BAUMAN V. ROSS, 167 U.S. 548, 584 (1897); SEE 3 P.
NICHOLS, EMINENT DOMAIN 8.62 ET SEQ. (REV. 3D ED. 1974).  /39/ 

WE NEED NOT, HOWEVER, DETERMINE WHETHER COMPENSATION IF THE FORM OF
SECURITIES WOULD BE CONSTITUTIONAL IF THE RAIL ACT WERE MERELY AN
EMINENT DOMAIN STATUTE.  FOR THE ARGUMENTS IN FAVOR OF THIS
CONSTRUCTION HAVE NO MERIT. 

FIRST, IT IS CONTENDED THAT DESPITE THE EXPRESS PROVISION OF 301(B)
THAT CONRAIL "SHALL NOT BE AN AGENCY OR INSTRUMENTALITY OF THE FEDERAL
GOVERNMENT,"  45 U.S.C. 741(B) (1970 ED.,SUPP.  III), FEDERAL
PARTICIPATION THROUGH FEDERALLY APPOINTED MEMBERS OF THE BOARD OF
DIRECTORS CONSTITUTES CONRAIL A FEDERAL INSTRUMENTALITY.  /40/  FROM
THAT PREMISE THE CONTENTION PROCEEDS THAT THE CONVEYANCE IS AN EXERCISE
OF EMINENT DOMAIN.  BUT CONRAIL IS NOT A FEDERAL INSTRUMENTALITY BY
REASON OF THE FEDERAL REPRESENTATION ON ITS BOARD OF DIRECTORS.  THAT
REPRESENTATION WAS PROVIDED TO PROTECT THE UNITED STATES' IMPORTANT
INTEREST IN ASSURING PAYMENT OF THE OBLIGATIONS GUARANTEED BY THE
UNITED STATES.  FULL VOTING CONTROL OF CONRAIL WILL SHIFT TO THE
SHAREHOLDERS IF FEDERAL OBLIGATIONS FALL BELOW 50% OF CONRAIL'S
INDEBTEDNESS.  THE RESPONSIBILITIES OF THE FEDERAL DIRECTORS ARE NOT
DIFFERENT FROM THOSE OF THE OTHER DIRECTORS--TO OPERATE CONRAIL AT A
PROFIT FOR THE BENEFIT OF ITS SHAREHOLDERS.  THUS, CONRAIL WILL BE
BASICALLY A PRIVATE, NOT A GOVERNMENTAL, ENTERPRISE. 

SECOND, IT IS CONTENDED THAT THE RAIL ACT'S PROVISIONS FOR A
COMPELLED CONVEYANCE AND FOR THE CONTINUATION OF RAIL SERVICES PENDING
FORMULATION OF THE FINAL SYSTEM PLAN CONSTITUTE THE ACT A CONDEMNATION
STATUTE.  WE SEE NO SIGNIFICANCE IN THESE FEATURES OF THE ACT EITHER. 
CONGRESS, IN ENACTING THOSE PROVISIONS, CLEARLY INTENDED TO LEGISLATE
PURSUANT TO THE BANKRUPTCY POWER.  THE RAIL ACT, LIKE 77 OF THE
BANKRUPTCY ACT, WHICH THE RAIL ACT SUPPLEMENTS, MERELY "ADVANCES
ANOTHER STEP IN THE DIRECTION OF LIBERALIZING THE LAW ON THE SUBJECT OF
BANKRUPTCIES," CONTINENTAL ILLINOIS NAT. BANK & TRUST CO. V. CHICAGO,
R.I. & P.R. CO., 294 U.S. 648, 671 (1935), AND "FARREACHING THOUGH (IT)
BE, (IT HAS) NOT GONE BEYOND THE LIMIT OF CONGRESSIONAL POWER.  . . ." 
IBID.  THAT IS THE TEACHING OF RFC V. DENVER & R.G.W.R. CO., 328 U.S.
495 (1946), WHERE THE COURT SUSTAINED THE "CRAM-DOWN" PROVISION OF 77
AUTHORIZING A REORGANIZATION COURT TO CONFIRM A PLAN DESPITE ITS
REJECTION BY CREDITORS.  THE COURT SAID:  "WE THINK THAT THE PROVISIONS
FOR CONFIRMATION BY THE COURTS OVER THE CREDITORS' OBJECTION ARE WITHIN
THE BANKRUPTCY POWERS OF CONGRESS.  THOSE POWERS ARE ADEQUATE TO
ELIMINATE CLAIMS BY ADMINISTRATIVE VALUATIONS WITH JUDICIAL REVIEW AND
THEY ARE ADEQUATE TO REQUIRE CREDITORS TO ACQUIESCE IN A FAIR
ADJUSTMENT OF THEIR CLAIMS, SO LONG AS THE CREDITOR GETS ALL THE VALUE
OF HIS LIEN AND HIS SHARE OF ANY FREE ASSETS."  ID., AT 533.  /41/
SIMILARLY, UNDER THE RAIL ACT, THE SPECIAL COURT HAS THE DUTY TO
PROVIDE THE RAILROAD ESTATES WITH THE "FAIR AND EQUITABLE" EQUIVALENT
IN CONRAIL SECURITIES FOR THE RAIL PROPERTIES CONVEYED. 

FINALLY, IT IS ARGUED THAT THERE ARE DEFECTS IN THE RAIL ACT'S
PROVISIONS FOR JUDICIAL REVIEW THAT IDENTIFY THE ACT AS AN EXERCISE OF
THE EMINENT DOMAIN POWER.  THE ARGUMENT IS FRIVOLOUS.  ALTHOUGH THE
TIME HAS NOT YET ARRIVED FOR THE MANDATORY TRANSFER TO CONRAIL, THE
REORGANIZATION COURTS HAVE HAD A FULL OPPORTUNITY TO ASSESS THE
FAIRNESS OF THE RAIL ACT'S SCHEME TO THE RAIL ESTATES.  207(B).  THE
SPECIAL COURT HAS REVIEWED THOSE DETERMINATIONS AND UNDER 303(C) WILL
HAVE AN OPPORTUNITY TO REVIEW THE TERMS OF THE TRANSFER, ALTHOUGH NOT
THE CONVEYANCE ITSELF.  IN ADDITION, NEITHER THE RAIL ACT ITSELF NOR
THE PROCEDURES THEREUNDER FINALLY DETERMINE THE INTERESTS OF THE
RESPECTIVE CREDITORS.  THOSE WILL BE DECIDED IN THE 77 REORGANIZATION
COUTS, WHICH WILL DISTRIBUTE TO CREDITORS THE CONSIDERATION RECEIVED
FOR THE RAIL PROPERTIES.  THERE ARE, THEREFORE, AMPLE ADEQUATE
"(SAFEGUARDS . . . TO PROTECT THE RIGHTS OF SECURED CREDITORS . . . TO
THE EXTENT OF THE VALUE OF THE PROPERTY."  WRIGHT V. UNION CENTRAL LIFE
INS. CO., 311 U.S. 273, 278 (1940); CF. NORTH AMERICAN CO. V. SEC, 327
U.S. 686 (1946). 

WE ARE NOT TO BE UNDERSTOOD TO INTIMATE THAT THE RAIL ACT PROCEEDING
COULD NOT RESULT IN A COMPENSABLE TAKING.  WE HOLD ONLY THAT, SINCE THE
RAIL ACT DOES NOT ON ITS FACT EXCEED THE BROAD SCOPE OF CONGRESSIONAL
POWER UNDER THE BANKRUPTCY CLAUSE, CF. CONTINENTAL ILLINOIS NAT. BANK &
TRUST CO. V. CHICAGO, R.I. & P.R. CO., SUPRA, AT 670, /42/  CONGRESS
HAS NOT FORMULATED AN UNCONSTITUTIONAL REORGANIZATION PLAN IN
COMPELLING A REORGANIZATION WHEREIN THE COMPENSATION TO APPELLEES
CONSISTS OF CONRAIL AND USRA SECURITIES AND OTHER BENEFITS "SO LONG AS
THE CREDITOR GETS ALL THE VALUE OF HIS LIEN AND HIS SHARE OF ANY FREE
ASSETS."  RFC V. DENVER & R.G.W.R. CO., SUPRA, AT 533. 

THIS ACT DOES DIFFER FROM OTHER REORGANIZATION STATUTES SUCH AS 77,
HOWEVER, IN THAT IT REQUIRES A CONVEYANCE BEFORE IT IS POSSIBLE TO
ASCERTAIN WHETHER THIS LAST CONDITION WILL BE MET.  THUS, THE
CONVEYANCE IS MANDATED WITHOUT ANY PRIOR JUDICIAL FINDING THAT THERE
WILL BE ADEQUATE RESOURCES IN THE REORGANIZED COMPANY OF WHATEVER KIND
TO COMPENSATE THE DEBTOR ESTATES AND, EVENTUALLY, THEIR CREDITORS. 
BECAUSE OF THIS CONGRESSIONAL INSISTENCE UPON ACCOMPLISHING THE
TRANSFER WHATEVER THE ULTIMATE EQUITY OF THE COMPENSATION PROVISIONS,
ANY DEFICIENCY OF CONSTITUTIONAL MAGNITUDE IN THE VALUE OF THE LIMITED
COMPENSATION PROVIDED UNDER THE ACT WILL INDEED BE A TAKING OF PRIVATE
PROPERTY FOR PUBLIC USE.  CF. NORTH AMERICAN CO. V. SEC, SUPRA, AT
710.  /43/  SINCE WE HAVE ALREADY DETERMINED, HOWEVER, THAT THERE WOULD
THEN BE RECOURSE TO A TUCKER ACT SUIT IN THE COURT OF CLAIMS FOR A CASH
AWARD TO COVER ANY CONSTITUTIONAL SHORTFALL, THE RAIL ACT DOES PROVIDE
ADEQUATE ASSURANCE THAT ANY TAKING WILL BE COMPENSATED. 

THE REMAINING CONTENTIONS REGARDING THE VALIDITY OF THE FINAL
CONVEYANCE PROVISIONS REQUIRE LITTLE DISCUSSION IN VIEW OF THE
AVAILABILITY OF A TUCKER ACT SUIT. 

THE FIRST CONTENTION IS THAT, EVEN IF CONSIDERED AS A REORGANIZATION
STATUTE, THE RAIL ACT FAILS TO ASSURE THAT CREDITORS WILL RECEIVE THE
FULL VALUE OF THEIR LIENS IN STOCK OR SECURITIES.  HOWEVER, WE HAVE
ALREADY HELD THAT, BECAUSE OF THE POSSIBILITY THAT THE RAIL ACT WILL
WORK A TAKING, THERE MUST BE ASSURANCE OF CONSIDERATION EQUAL TO ANY
CONSTITUTIONAL SHORTFALL, AND THAT A TUCKER ACT REMEDY IS AVAILABLE TO
PROVIDE THAT ASSURANCE.  THUS, THE VALUE OF THE STOCKS AND SECURITIES
PROVIDED UNDER T ACT IS BACKED UP BY WHAT IS ESSENTIALLY A GUARANTEE OF
CASH PAYMENT FOR ANY LACK OF FAIRNESS AND EQUITY OF CONSTITUTIONAL
DIMENSIONS.  THE TUCKER ACT REMEDY FULFILLS PERFECTLY, THEN, THE
FUNCTION OF THE UNDERWRITING PROVISIONS APPROVED IN THE NEW HAVEN
INCLUSION CASES, 399 U.S.,AT 486 - 488. 

SIMILARLY, THE AVAILABILITY OF THE TUCKER AT CURES WHAT MIGHT
OTHERWISE BE A TROUBLESOME PROBLEM OF PROCEDURAL DUE PROCESS.  THE
TUCKER ACT ASSURES THAT THE RAILROAD ESTATES AND THE CREDITORS WILL
EVENTUALLY BE MADE WHOLE FOR THE ASSETS CONVEYED.  COMPLAINANTS
EVIDENCE NO INTEREST IN RETAINING THEIR PROPERTY FOR LONGER THAN THE
RAIL ACT REQUIRES.  INDEED, THEIR POSITION IS REALLY THAT THEY WANT TO
BE FREE TO DISPOSE OF IT SOONER.  THUS, THERE IS NO INTEREST ASSERTED
IN RETAINING THE PROPERTIES THEMSELVES; THE ONLY INTEREST IS IN MAKING
SURE THAT CREDITORS RECEIVE FAIR COMPENSATION FOR THOSE PROPERTIES.  ON
THE OTHER HAND, THE PROCEDURAL SEQUENCE IS VITAL TO ACCOMPLISHING THE
GOALS OF THE ACT.  IF JUDICIAL REVIEW OF THE TERMS OF THE TRANSFER WAS
REQUIRED BEFORE THE CONVEYANCE COULD OCCUR, THE CONVEYANCE MIGHT WELL
COME TOO LATE TO RESOLVE THE RAIL TRANSPORTATION CRISIS.  AS LONG AS
CREDITORS ARE ASSURED FAIR VALUE, WITH INTEREST, FOR THEIR PROPERTIES,
THE CONSTITUTION REQUIRES NOTHING MORE. 

        VI

        VALIDITY OF THE RAIL ACT UNDER UNIFORMITY REQUIREMENT OF

           BANKRUPTCY CLAUSE 

WE CONSIDER FINALLY THE CONTENTION THAT, BECAUSE THE RAIL ACT'S
PROVISIONS APPLY ONLY TO RAILROADS IN REORGANIZATION IN THE "REGION,"
THE STATUTE LACKS THE UNIFORMITY REQUIRED BY ART. I, 8, CL. 4, OF THE
CONSTITUTION GIVING CONGRESS POWER "TO ESTABLISH . . . UNIFORM LAWS ON
THE SUBJECT OF BANKRUPTCIES THROUGHOUT THE UNITED STATES." 

THE DISTRICT COURT HELD THAT "RECOURSE TO THE BANKRUPTCY CLAUSE TO
JUSTIFY CONGRESSIONAL ACTION IS NECESSARY ONLY IF THAT ACTION IMPAIRS
THE OBLIGATION OF CONTRACTS."  383 F.SUPP.,AT 534 (FULLAM, J.,
CONCURRING).  IN THAT RESPECT, THE COURT FOUND THAT THE RAIL ACT ADDS
VIRTUALLY NOTHING TO THE POWERS ALREADY GRANTED TO REORGANIZATION
COURTS UNDER THE "UNIFORM AND ADMITTEDLY VALID PROVISIONS OF 77 OF THE
BANKRUPTCY ACT.  . . . AUTHORITY TO ORDER CONVEYANCE FREE AND CLEAR OF
LIENS, AND TO 'CRAM DOWN' A PLAN OF REORGANIZATION, ALREADY EXISTS
UNDER 77, AND IS NOT NEWLY CREATED OR ADDED BY THE (RAIL) ACT."  IBID. 

THE COURT DETERMINED, HOWEVER, THAT ONE PROVISION OF THE RAIL ACT IS
"NEWLY CREATED OR ADDED BY THE (RAIL) ACT."  SECTION 207(B) REQUIRES
THE REORGANIZATION COURT TO DISMISS THE 77 PROCEEDING IF IT FINDS THAT
THE RAILROAD IS NOT REORGANIZABLE ON AN INCOME BASIS WITHIN A
REASONABLE TIME, AND THAT THE RAIL ACT DOES NOT PROVIDE A PROCESS WHICH
WOULD BE FAIR AND EQUITABLE TO THE ESTATE OF THE RAILROAD IN
REORGANIZATION.  THE DISTRICT COURT NOTED THAT THE NEW HAVEN INCLUSION
CASES, 399 U.S. 392 (1970), HELD THAT INASMUCH AS THE PLAN DISPOSED OF
THE NEW HAVEN'S ASSETS TO THE PENN CENTRAL FOR CONTINUED OPERATIONS, 77
COULD BE USED TO REORGANIZE THE ENTERPRISE AS AN INVESTMENT HOLDING
COMPANY, "AT LEAST WHERE THE PLAN CONTEMPLATES THAT THE BULK OF THE
RAIL PROPERTIES WILL CONTINUE TO BE OPERATED AS A RAILROAD BY
SOMEONE."  383 F.SUPP.,AT 534.  THE DISTRICT COURT HELD THAT 207(B) OF
THE RAIL ACT PRECLUDES A LIKE REORGANIZATION UNDER 77 BY REQUIRING
DISMISSAL OF THE 77 PROCEEDINGS, AND TO THAT EXTENT VIOLATES THE
UNIFORMITY CLAUSE SINCE THIS DISMISSAL RELATES ONLY TO DEBTORS WITHIN
THE REGION COVERED BY THE RAIL ACT. 

WE NEED NOT DECIDE WHETHER THE DISTRICT COURT WAS CORRECT IN THIS
RESPECT.  FOLLOWING THE DECISION OF THE DISTRICT COURT, THE PENN
CENTRAL REORGANIZATION COURT ISSUED ITS 180-DAY ORDER FINDING THAT,
ALTHOUGH PENN CENTRAL IS NOT REORGANIZATION ON AN INCOME BASIS UNDER
77, THE RAIL ACT DOES NOT PROVIDE A PROCESS WHICH WOULD BE FAIR AND
EQUITABLE TO THE DEBTOR'S ESTATE.  382 F.SUPP.  856, 870 - 971.  RATHER
THAN DISMISS THE 77 PROCEEDING AS REQUIRED BY 207(B), HOWEVER, THE
COURT STAYED ITS ORDER PENDING AN APPEAL TO THE SPECIAL COURT.  THE
SPECIAL COURT FOUND THAT THE PROCESSES PRESCRIBED IN THE RAIL ACT ARE
FAIR AND EQUITABLE IF A REMEDY EXISTS UNDER THE TUCKER ACT, AND
REVERSED.  384 F.SUPP.,AT 913.  THE RAIL ACT EXPRESSLY PROVIDES THAT
THIS HOLDING IS NONREVIEWABLE.  207(B).  ALTHOUGH WE NEED NOT ADDRESS
TODAY THE ISSUE WHETHER THE JUDGMENT OF THE SPECIAL COURT IS SUBJECT TO
REVIEW, WE DO HOLD THAT THE TUCKER ACT REMEDY IS AVAILABLE FOR ANY
UNCOMPENSATED TAKING OCCURRING UNDER THE RAIL ACT.  THAT HOLDING
OBVIATES THE POSSIBILITY THAT THE PENN CENTRAL REORGANIZATION COURT
WILL EVER CONFRONT THE PROVISIONS FOR DISMISSAL OF A 77 PROCEEDING
UNDER 207(B) OF THE RAIL ACT. 

THERE REMAINS, HOWEVER, ANOTHER ASPECT OF THE UNIFORMITY ISSUE FOR
DECISION.  APPELLEES URGE THAT THE ENTIRE RAIL ACT VIOLATES THE
UNIFORMITY CLAUSE.  THE ARGUMENT IS THAT THE UNIFORMITY REQUIRED BY THE
CONSTITUTION IS GEOGRAPHIC, HANOVER NATIONAL BANK V. MOYSES, 186 U.S.
181, 188 (1902), AND SINCE THE RAIL ACT OPERATES ONLY IN A SINGLE
STATUTORILY DEFINED REGION, THE ACT IS GEOGRAPHICALLY NONUNIFORM. 

THE ARGUMENT HAS A CERTAIN SURFACE APPEAL BUT IS WITHOUT MERIT
BECAUSE IT OVERLOOKS THE FLEXIBILITY INHERENT IN THE CONSTITUTIONAL
PROVISION.  SECTION 77 WAS UPHELD AGAINST A LIKE CHALLENGE ON THE
GROUND OF THE "CAPACITY OF THE BANKRUPTCY CLAUSE TO MEET NEW CONDITIONS
AS THEY HAVE BEEN DISCLOSED AS A RESULT OF THE TREMENDOUS GROWTH OF
BUSINESS AND DEVELOPMENT OF HUMAN ACTIVITIES FROM 1800 TO THE PRESENT
DAY."  CONTINENTAL ILLINOIS NAT. BANK & TRUST CO. V. CHICAGO, R.I. &
P.R. CO., 294 U.S.,AT 671.  THE COURT THEREFORE HELD THAT, THOUGH 77
WAS A DISTINCTION AND FAR-REACHING STATUTE, TREATING RAILROAD
BANKRUPTCIES AS A DISTINCTIVE AND SPECIAL PROBLEM, IT WAS NOT "BEYOND
THE LIMIT OF CONGRESSIONAL POWER."  /44/ 

THE UNIFORMITY PROVISION DOES NOT DENY CONGRESS POWER TO TAKE INTO
ACCOUNT DIFFERENCES THAT EXIST BETWEEN DIFFERENT PARTS OF THE COUNTRY,
AND TO FASHION LEGISLATION TO RESOLVE GEOGRAPHICALLY ISOLATED
PROBLEMS.  "THE PROBLEM DEALT WITH (UNDER THE BANKRUPTCY CLAUSE) MAY
PRESENT SIGNIFICANT VARIATIONS IN DIFFERENT PARTS OF THE COUNTRY." 
WRIGHT V. VINTON BRANCH, 300 U.S. 440, 463 N. 7 (1937).  WE THEREFORE
AGREE WITH THE SPECIAL COURT THAT THE UNIFORMITY CLAUSE WAS NOT
INTENDED "TO HOBBLE CONGRESS BY FORCING IT INTO NATIONWIDE ENACTMENTS
TO DEAL WITH CONDITIONS CALLING FOR REMEDY ONLY IN CERTAIN REGIONS." 
384 F.SUPP.,AT 918. 

THE NATIONAL RAIL TRANSPORTATION CRISIS THAT PRODUCED THE RAIL ACT
CENTERED IN THE PROBLEMS OF THE RAIL CARRIERS OPERATING IN THE REGION
DEFINED BY THE ACT, AND THESE WERE THE PROBLEM CONGRESS ADDRESSED. 
/45/  NO RAILROAD REORGANIZATION PROCEEDING, WITHIN THE MEANING OF THE
RAIL ACT, WAS PENDING OUTSIDE THAT DEFINED REGION ON THE EFFECTIVE DATE
OF THE ACT OR DURING THE 180-DAY PERIOD FOLLOWING THE STATUTE'S
EFFECTIVE DATE.  THUS THE RAIL ACT IN FACT OPERATES UNIFORMLY UPON ALL
BANKRUPT RAILROADS THEN OPERATING IN THE UNITED STATES AND UNIFORMLY
WITH RESPECT TO ALL CREDITORS OF EACH OF THESE RAILROADS. 

THE UNIFORMITY CLAUSE REQUIRES THAT THE RAIL ACT APPLY EQUALLY TO
ALL CREDITORS AND ALL DEBTORS, AND PLAINLY THIS ACT FULFILLS THOSE
REQUIREMENTS.  VANSTON BONDHOLDERS PROTECTIVE COMMITTEE V. GREEN, 329
U.S. 156, 172 (1946) (FRANKFURTER, J., CONCURRING).  "NO PROVISION OF
THE ACT RESTRICTS THE RIGHT OF ANY CREDITOR WHERESOEVER LOCATED TO
OBTAIN RELIEF BECAUSE OF REGIONALISM."  383 F.SUPP.,AT 519.  (ALDISERT,
J.) 

OUR CONSTRUCTION OF THE BANKRUPTCY CLAUSE'S UNIFORMITY PROVISION
COMPORTS WITH THIS COURT'S CONSTRUCTION OF OTHER "UNIFORM" PROVISIONS
OF THE CONSTITUTION.  THE HEAD MONEY CASES, 112 U.S. 580 (1884),
INVOLVED THE LEVY ON SHIPS' AGENTS OR OWNERS OF A 50-CENT TAX FOR ANY
PASSENGER NOT A UNITED STATES CITIZEN WHO ENTERED AN AMERICAN PORT FROM
A FOREIGN PORT "BY STEAM OR SAIL VESSEL."  INDIVIDUALS ENGAGED IN
TRANSPORTING PASSENGERS FROM HOLLAND TO THE UNITED STATES CHALLENGED
THE LEVY AS CONTRARY TO ART. 1, 8, CL. 1, UNDER WHICH CONGRESS IS
EMPOWERED TO LAY AND COLLECT "ALL DUTIES, IMPOSTS AND EXCISES (WHICH)
SHALL BE UNIFORM THROUGHOUT THE UNITED STATES."  THE ARGUMENT WAS THAT
THE HEAD TAX VIOLATED THE UNIFORMITY CLAUSE BECAUSE IT WAS NOT ALSO
LEVIED ON NONCITIZEN PASSENGERS ENTERING THIS COUNTRY BY RAIL OR OTHER
INLAND MODE OF CONVEYANCE.  THE COURT UPHELD THE TAX, STATING: 

"THE TAX IS UNIFORM WHEN IT OPERATES WITH THE SAME FORCE AND

  EFFECT IN EVERY PLACE WHERE THE SUBJECT OF IT IS FOUND.  THE TAX

  IN THIS CASE . . . IS UNIFORM AND OPERATES PRECISELY ALIKE IN

  EVERY PORT OF THE UNITED STATES WHERE SUCH PASSENGERS CAN BE

  LANDED."  112 U.S.,AT 594. 

THAT THE TAX WAS NOT IMPOSED ON NONCITIZENS ENTERING THE NATION ACROSS
INLAND BORDERS DID NOT RENDER THE TAX NON-UNIFORM SINCE "THE EVIL TO BE
REMEDIED BY THIS LEGISLATION HAS NO EXISTENCE ON OUR INLAND BORDERS,
AND IMMIGRATION IN THAT QUARTER NEEDED NO SUCH REGULATION."  ID., AT
595.  SIMILARLY, THE RAIL ACT IS DESIGNED TO SOLVE "THE EVIL TO BE
REMEDIED,"  AND THUS SATISFIES THE UNIFORMITY REQUIREMENT OF THE
BANKRUPTCY CLAUSE.  THE ARGUMENT THAT THE RAIL ACT DIFFERS FROM THE
HEAD TAX STATUTE BECAUSE BY ITS OWN TERMS THE RAIL ACT APPLIES ONLY TO
ONE DESIGNATED REGION IS WITHOUT MERIT.  THE DEFINITION OF THE REGION
DOES NOT OBSCURE THE REALITY THAT THE LEGISLATION APPLIES TO ALL
RAILROADS UNDER REORGANIZATION PURSUANT TO 77 DURING THE TIME THE ACT
APPLIES.                    REVERSED. 

/1/  THE JUDGEMENT WAS ENTERED IN THREE CONSOLIDATED CASES.  ONE
ACTION WAS BROUGHT IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA BY CONNECTICUT GENERAL INSURANCE CORP. AND OTHERS AGAINST
THE UNITED STATES, THE UNITED STATES RAILWAY ASSOCIATION (USRA), AND
THE SECRETARIES OF TREASURY AND TRANSPORTATION AND THE CHAIRMAN OF THE
INTERSTATE COMMERCE COMMISSION IN THEIR CAPACITIES AS INCORPORATORS AND
DIRECTORS OF USRA.  A SECOND ACTION WAS BROUGHT IN THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA BY PENN CENTRAL CO., A CREDITOR AND THE
SOLE STOCKHOLDER OF PENN CENTRAL TRANSPORTATION CO. (PENN CENTRAL), NOW
IN REORGANIZATION UNDER 77 OF THE BANKRUPTCY ACT, AGAINST THE SAME
DEFENDANTS NAMED IN THE FIRST ACTION.  A THIRD ACTION WAS BROUGHT IN
THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BY RICHARD J. SMITH,
TRUSTEE OF THE PROPERTY OF THE NEW YORK, NEW HAVEN & HARTFORD RAILROAD
CO. CNEW HAVEN TRUSTEE) AGAINST THE UNITED STATES, USRA, AND THE
SECRETARY OF TRANSPORTATION.  THREE-JUDGE COURTS WERE CONVENED IN EACH
SUIT BUT, BY CONSENT OF THE PARTIES, THE SECOND AND THIRD ACTIONS WERE
TRANSFERRED TO THE EASTERN DISTRICT AND CONSOLIDATED FOR DISPOSITION
BEFORE THE THREE-JUDGE COURT CONVENED IN THAT ACTION.  THE TRUSTEES OF
PENN CENTRAL INTERVENED. 

THREE DIRECT APPEALS AND ONE CROSS-APPEAL FROM THE DISTRICT COURT'S
JUDGMENT WERE CONSOLIDATED FOR DECISION IN THIS COURT.  NO. 74 - 165 IS
THE APPEAL OF THE TRUSTEES OF PENN CENTRAL; NO. 76 - 167 IS THE APPEAL
OF USRA; NO. 74 - 168 IS THE APPEAL OF THE UNITED STATES; AND NO 74 -
166 IS THE CROSS-APPEAL OF THE NEW HAVEN TRUSTEE. 

/2/  THE RAIL ACT DEFINES "REGION" AS THE "STATES OF MAINE, NEW
HAMPSHIRE, VERMONT, MASSACHUSETTS, CONNECTICUT, RHODE ISLAND, NEW YORK,
NEW JERSEY, PENNSYLVANIA, DELAWARE, MARYLAND, VIRGINIA, WEST VIRGINIA,
OHIO, INDIANA, MICHIGAN, AND ILLINOIS; THE DISTRICT OF COLUMBIS; AND
THOSE PORTIONS OF CONTIGUOUS STATES IN WHICH ARE LOCATED RAIL
PROPERTIES OWNED OR OPERATED BY RAILROADS DOING BUSINESS PRIMARILY IN
THE AFOREMENTIONED JURISDICTION (AS DETERMINED BY THE (INTERSTATE
COMMERCE) COMMISSION BY ORDER)."  102(13), 45 U.S.C. 702(13) (1970
ED.,SUPP.  III).  ICC ORDER EX PARTE NO. 293; APPROVED JANUARY 14,
1974, DELINEATED AREAS NEAR LOUISVILLE, KY.; ST. LOUIS, MO.; AND
KEWAUNEE AND MANITOWOC, WIS., AS INCLUDED IN THE REGION.  39 REG.
FED.R3605 (1974). 

/3/  IN ADDITION TO PENN CENTRAL, THE RAILROADS ARE THE READING (IN
RE READING CO., BKY.  NO. 71 - 828, ED PA.), ERIR LACKAWANNA (IN RE
ERIE LACKAWANNA R. CO., NO. B72 - 2838, ND OHIO), CENTRAL OF NEW JERSEY
(IN RE CENTRAL R. CO. OF NEW NO. JERSEY, B401 - 67, N.J.), LEHIGH
VALLEY (IN RE LEHIGH VALLEY R. CO., BKY.  NO. 70 - 432, ED PA.), BOSTON
& MAINE (IN RE BOSTON & MAINE CORP., BKY.  NO. 70 - 250 - M, MASS.),
ANN ARBOR (IN RE ANN ARBOR R. CO., BKY.  NO. 74 - 90833, ED MICH.), AND
THE LEHIGH & HUDSON RIVER (IN RE LEHIGH & HUDSON RIVER R. CO., NO. 72 -
B - 419, SDNY). 

THE FOLLOWING LESSORS OF LEASED LINES OF PENN CENTRAL ALSO FILED 77
PETITIONS IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA IN BKY.  NO. 70 - 347; UNITED NEW JERSEY RAILROAD & CANAL
CO.; BEECH CREEK RAILROAD CO.; CLEVELAND, CINCINNATI, CHICAGO & ST.
LOUIS RAILWAY CO.; CLEVELAND & PITTS0URGH RAILROAD CO.; CONNECTING
RAILWAY CO.; DELAWARE RAILROAD CO.; ERIR & PITTSBURGH RAILROAD CO.;
MICHIGAN CENTRAL RAILROAD CO.; NORTHERN CENTRAL RAILWAY CO.; PENNDEL
CO.; PHILADELPHIA, BALTIMORE & WASHINGTON RAILROAD CO.; PHILADELPHIA &
TRENTON RAILROAD CO.; PITTSBURGH, YOUNGSTOWN & ASHTABULA RAILWAY CO.;
PITTSBURGH, FORT WAYWE & CHICAGO RAILWAY CO.; AND UNION RAILROAD CO. OF
BALTIMORE. 

/4/  THESE INCLUDED THE EMERGENCY RAIL SERVICES ACT OF 1970, 84
STAT. 1975, 45 U.S.C. 661 ET SEQ., WHICH AUTHORIZED THE SECRETARY OF
TRANSPORTAION TO GUARANTEE UP TO $125 MILLION IN CERTIFICATES ISSUED BY
TRUSTEES OF RAILROADS IN REORGANIZATION IF HE FOUND, INTER ALIA, THAT
THERE WAS A THREAT OF IMMINENT CESSATION OF ESSENTIAL RAIL SERVICES AND
THAT THE ONLY PRACTICABLE MEANS OF MEETING EXPENSES NECESSARY TO
CONTINUE SUCH SERVICES WAS THE ISSUANCE OF SUCH GUARANTEED
CERTIFICATES. 

/5/  THE ERIE LACKAWANNA AND BOSTON & MAINE REORGANIZATION COURTS
EACH DETERMINED THAT ITS RAILROAD IS REORGANIZABLE ON AN INCOME BASIS
WITHIN A REASONABLE TIME; REORGANIZATION OF THOSE RAILROADS WILL NOT
PROCEED UNDER THE RAIL ACT.  IN RE ERIE LACKAWANNA R. CO.,--F.SUPP.-
(ND OHIO 1974); IN RE BOSTON& MAINE CORP., 378 F.SUPP.  68 (MASS.
1974). 

/6/  THREE REORGANIZATION COURTS FOUND THAT THE RAIL ACT DOES NOT
PROVIDE A PROCESS THAT IS FAIR AND EQUITABLE TO THE ESTATES OF THE
RAILROADS UNDER THEIR JURISCITION.  IN RE PENN CENTRAL TRANS.  CO., 382
F.SUPP.  856 (ED PA. 1974); IN RE LEHIGH VALLEY R. CO., 382 F.SUPP. 
854 (ED PA. 1974); IN RE PENN CENTRAL TRANS.  CO. (SECONDARY DEBTORS),
382 F.SUPP.  821 (ED PA. 1974); IN RE CENTRAL R. CO. OF NEW JERSEY,-
F.SUPP.--(NJ 1974); IN RE LEGHIGH & HUDSON RIVER R. CO., 377 F.SUPP. 
475 (SDNY 1974).  THE SPECIAL COURT ESTABLISHED UNDER 209(B), SEE N. 7,
INFRA, ON SEPTEMBER 30, 1974, REVERSED THE ORDERS IN THOSE CASES AND
DIRECTED REORGANIZATION UNDER THE RAIL ACT, 384 F.SUPP.  895. 

TWO OTHER REORGANIZATION COURTS HELD THAT THE RAIL ACT DOES PROVIDE
A FAIR AND EQUITABLE PROCESS AND ORDERED THAT REORGANIZATION PROCEED
UNDER THE RAIL ACT.  IN RE THE READING CO., 378 F.SUPP.  481 (ED PA.
1974); IN RE ANN ARBOR R. CO.,--F.SUPP.--(ED MICH. 1974). 

/7/  SECTION 209(B) PROVIDES IN PERTINENT PART: 

"WITHIN 30 DAYS AFTER JANUARY 2, 1974, (USRA) SHALL MAKE APPLICATION
TO THE JUDICIAL PANEL ON MULTI-DISTRICT LITIGATION AUTHORIZED BY
DISTRICT COURT OF THE UNITED STATES OF ALL JUDICIAL PROCEEDINGS WITH
RESPECT TO THE FINAL SYSTEM PLAN.  . . . SUCH PROCEEDINGS SHALL BE
CONDUCTED BY THE SPECIAL COURT WHICH SHALL BE COMPOSED OF THREE FEDERAL
JUDGES WHO SHALL BE SELECTED BY THE PANEL.  . . . THE SPECIAL COURT IS
AUTHORIZED TO EXERCISE THE POWERS OF A DISTRICT JUDGE IN ANY JUDICIAL
DISTRICT WITH RESPECT TO SUCH PROCEEDINGS AND SUCH POWERS SHALL INCLUDE
THOSE OF A REORGANIZATION COURT.  THE SPECIAL COURT SHALL HAVE THE
POWER TO ORDER THE CONVEYANCE OF RAIL PROPERTIES OF RAILROADS LEASED,
OPERATED, OR CONTROLLED BY A RAILROAD IN REORGANIZATION IN THE REGION. 
. . ." 

THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION SELECTED CIRCUIT
JUDGE HENRY J. FRIENDLY, CIRCUIT JUDGE CARL MCGOWAN, AND DISTRICT JUDGE
ROSZEL C. THOMSEN TO COMPOSE THE SPECIAL COURT. 

/8/  SECTION 206(C) PROVIDES AS FOLLOWS FOR THE DESIGNATION OF RAIL
PROPERTIES FOR THE FINAL SYSTEM PLAN: 

"(C) DESIGNATIONS. 

"THE FINAL SYSTEM PLAN SHALL DESIGNATE-- 

"(1) WHICH RAIL PROPERTIES OF RAILROADS IN REORGANIZATION IN THE
REGION OR OF RAILROADS LEASED, OPERATED, OR CONTROLLED BY ANY RAILROAD
IN REORGANIZATION IN THE REGION-- 

"(A) SHALL BE TRANSFERRED TO (CONRAIL); 

"(B) SHALL BE OFFERED FOR SALE TO A PROFITABLE RAILROAD OPERATING IN
THE REGION AND, IF SUCH OFFER IS ACCEPTED, OPERATED BY SUCH RAILROAD;
THE PLAN SHALL DESIGNATE WHAT ADDITIONS SHALL BE MADE TO THE
DESIGNATION UNDER SUBPARAGRAPH (A) OF THIS PARAGRAPH IN THE EVENT SUCH
PROFITABLE RAILROAD FAILS TO ACCEPT SUCH OFFER; 

"(C) SHALL BE PURCHASED, LEASED, OR OTHERWISE ACQUIRED FROM
(CONRAIL) BY THE NATIONAL RAILROAD PASSENGER CORPORATION . . .; 

"(D) MAY BE PURCHASED OR LEASED FROM (CONRAIL) BY A STATE OR A LOCAL
OR REGIONAL TRANSPORTATION AUTHORITY TO MEET THE NEEDS OF COMMUTER AND
INTERCITY RAIL PASSENGER SERVICE; AND 

"(E) IF NOT OTHERWISE REQUIRED TO BE OPERATED BY (CONRAIL), A
GOVERNMENT ENTITY, OR A RESPONSIBLE PERSON, ARE SUITABLE FOR USE FOR
OTHER PUBLIC PURPOSES, INCLUDING HIGHWAYS, OTHER FORMS OF
TRANSPORTATION, CONSERVATION, ENERGY TRANSMISSION, EDUCATION OR HEALTH
CARE FACILITIES, OR RECREATION . . .; AND 

"(2) WHICH RAIL PROPERTIES OF PROFITABLE RAILROADS OPERATING IN THE
REGION MAY BE OFFERED FOR SALE TO (CONRAIL) OR TO OTHER PROFITABLE
RAILROADS OPERATING IN THE REGION SUBJECT TO PARAGRAPHS (3) AND (4) OF
SUBSECTION (D) OF THIS SECTION." 


"(D) TRANSFERS. 

"ALL TRANSFERS OR CONVEYANCES PURSUANT TO THE FINAL SYSTEM PLAN
SHALL BE MADE IN ACCORDANCE WITH, AND SUBJECT TO, THE FOLLOWING
PRINCIPLES: 

"(1) ALL RAIL PROPERTIES TO BE TRANSFERRED TO (CONRAIL) BY A
PROFITABLE RAILROAD, BY TRUSTEES OF A RAILROAD IN REORGANIZATION, OR BY
ANY RAILROAD LEASED, OPERATED, OR CONTROLLED BY A RAILROAD IN
REORGANIZATION IN THE REGION, SHALL BE TRANSFERRED IN EXCHANGE FOR
STOCK AND OTHER SECURITIES OF (CONRAIL) (INCLUDING OBLIGATIONS OF
(URSA)) AND THE OTHER BENEFITS ACCRUING TO SUCH RAILROAD BY REASON OF
SUCH TRANSFER." 

FOLLOWS 

"(B) MAXIMUM OBLIGATIONAL AUTHORITY. 

"EXCEPT AS OTHERWISE PROVIDED IN THE LAST SENTENCE OF THIS
SUBSECTION, THE AGGREGATE AMOUNT OF OBLIGATIONS OF (USRA) ISSUED UNDER
THIS SECTION WHICH MAY BE OUTSTANDING AT ANY ONE TIME SHALL NOT EXCEED
$1,500,000,000 OF WHICH THE AGGREGATE AMOUNT ISSUED TO (CONRAIL) SHALL
NOT EXCEED $1,000,000,000.  OF THE AGGREGATE AMOUNT OF OBLIGATIONS
ISSUED TO (CONRAIL) BY (USRA), NOT LESS THAN $500,000,000 SHALL BE
AVAILABLE SOLELY FOR THE REHABILITATION AND MODERNIZATION OF RAIL
PROPERTIES ACQUIRED BY (CONRAIL) UNDER THIS CHAPTER AND NOT DISPOSED OF
BY (CONRAIL) PURSUANT TO SECTION 716(C)(1)(C) OF THIS TITLE.  ANY
MODIFICATION TO THE LIMITATIONS SET FORTH IN THIS SUBSECTION SHALL BE
MADE BY JOINT RESOLUTION ADOPTED BY THE CONGRESS."  210, 45 U.S.C. 720
(1970 ED.,SUPP.  III). 

        .          .          .         . 

"(A) EMERGENCY ASSISTANCE. 

"THE SECRETARY IS AUTHORIZED, PENDING THE IMPLEMENTATION OF THE
FINAL SYSTEM PLAN, TO PAY TO THE TRUSTEES OF RAILROADS IN
REORGANIZATION SUCH SUMS AS ARE NECESSARY FOR THE CONTINUED PROVISION
OF ESSENTIAL TRANSPORTATION SERVICES BY SUCH RAILROADS.  SUCH PAYMENTS
SHALL BE MADE BY THE SECRETARY UPON SUCH REASONABLE TERMS AND
CONDITIONS AS THE SECRETARY ESTABLISHES, EXCEPT THAT RECIPIENTS MUST
AGREE TO MAINTAIN AND PROVIDE SERVICE AT A LEVEL NO LESS THAN THAT IN
EFFECT ON JANUARY 2, 1974. 

"(B) AUTHORIZATION FOR APPROPRIATIONS. 

"THERE ARE AUTHORIZED TO BE APPROPRIATED TO THE SECRETARY FOR
CARRYING OUT THIS SECTION SUCH SUMS AS ARE NECESSARY, NOT TO EXCEED
$85,000,000, TO REMAIN AVAILABLE UNTIL EXPENDED."  213, 45 U.S.C. 723
(1970 ED.,SUPP.  III). 

  .          .          .          . 

"(A) SECRETARY (OF TRANSPORTATION). 

"THERE ARE AUTHORIZED TO BE APPROPRIATED TO THE SECRETARY FOR
PURPOSES OF PREPARING THE REPORTS AND EXERCISING OTHER FUNCTIONS TO BE
PERFORMED BY HIM UNDER THIS CHAPTER SUCH SUMS AS ARE NECESSARY, NOT TO
EXCEED $12,500,000, TO REMAIN AVAILABLE UNTIL EXPENDED. 

"(B) OFICE. 

"THERE ARE AUTHORIZED TO BE APPROPRIATED TO THE (INTERSTATE
COMMERCE) COMMISSION FOR THE USE OF THE OFFICE IN CARRYING OUT ITS
FUNCTIONS UNDER THIS CHAPTER SUCH SUMS AS ARE NECESSARY, NOT TO EXCEED
$5,000,000, TO REMAIN AVAILABLE UNTIL EXPENDED.  . . . 

"(C) ASSOCIATION. 

"THERE ARE AUTHORIZED TO BE APPROPRIATED TO (USRA) FOR PURPOSES OF
CARRYING OUT ITS ADMINISTRATIVE EXPENSES UNDER THIS CHAPTER SUCH SUMS
AS ARE NECESSARY, NOT TO EXCEED $26,000,000, TO REMAIN AVAILABLE UNTIL
EXPENDED."  214, 45 U.S.C. 724 (1970 ED.,SUPP.  III). 

        .          .   .          . 

"PRIOR TO THE DATE UPON WHICH RAIL PROPERTIES ARE CONVEYED TO
(CONRAIL) UNDER THIS CHAPTER, THE SECRETARY, WITH THE APPROVAL OF
(USRA), IS AUTHORIZED TO ENTER INTO AGREEMENTS WITH RAILROADS IN
REORGANIZATION IN THE REGION (OR RAILROADS LEASED, OPERATED, OR
CONTROLLED BY RAILROADS IN REORGANIZATION) FOR THE ACQUISITION,
MAINTENANCE, OR IMPROVEMENT OF RAILROAD FACILITIES AND EQUIPMENT
NECESSARY TO IMPROVE PROPERTY THAT WILL BE IN THE FINAL SYSTEM PLAN. 
AGREEMENTS ENTERED INTO PURSUANT TO THIS SECTION SHALL SPECIFICALLY
IDENTIFY THE TYPE AND QUALITY OF IMPROVEMENTS TO BE MADE PURSUANT TO
SUCH AGREEMENTS.  NOTWITHSTANDING SECTION 720(B) OF THIS TITLE, (USRA)
SHALL ISSUE OBLIGATIONS UNDER SECTION 720(A) OF THIS TITLE IN AN AMOUNT
SUFFICIENT TO FINANCE SUCH AGREEMENTS AND SHALL REQUIRE (CONRAIL) TO
ASSUME ANY SUCH OBLIGATIONS.  HOWEVER, (USRA) MAY NOT ISSUE OBLIGATIONS
UNDER THIS SECTION IN AN AGGREGATE AMOUNT IN EXCESS OF $150,000,000.  .
. ."  215, 45 U.S.C. 725 (1970 ED.,SUPP.  III). 

/9/  THE PERIOD OF 450 DAYS PROVIDED BY 207(C) WAS EXTENDED 120 DAYS
BY PUB. L. 93 - 488, 88 STAT. 1465, EFFECTIVE OCT. 26, 1974. 

/10/  CONCERNING CONGRESSIONAL REVIEW OF THE FINAL SYSTEM PLAN, 208
PROVIDES 

"(A) GENERAL. 

"THE BOARD OF DIRECTORS OF (USRA) SHALL DELIVER THE FINAL SYSTEM
PLAN ADOPTED BY (USRA) TO BOTH HOUSE OF CONGRESS AND TO THE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE OF THE HOUSE OF REPRESENTATIVES AND
THE COMMITTEE ON COMMERCE OF THE SENATE.  THE FINAL SYSTEM PLAN SHALL
BE DEEMED APPROVED AT THE END OF THE FIRST PERIOD OF 60 CALENDAR DAYS
OF CONTINUOUS SESSION OF CONGRESS AFTER SUCH DATE OF TRANSMITTAL UNLESS
EITHER THE HOUSE OF REPRESENTATIVES OR THE SENATE PASSES A RESOLUTION
DURING SUCH PERIOD STATING THAT IT DOES NOT FAVOR THE FINAL SYSTEM
PLAN. 

"(B) REVISED PLAN. 

"IF EITHER THE HOUSE OR THE SENATE PASSES A RESOLUTION OF
DISAPPROVAL UNDER SUBSECTION (A) OF THIS SECTION, (USRA), WITH THE
COOPERATION AND ASSISTANCE OF THE SECRETARY AND THE OFFICE, SHALL
PREPARE, DETERMINE, AND ADOPT A REVISED FINAL SYSTEM PLAN.  EACH SUCH
REVISED PLAN SHALL BE SUBMITTED TO CONGRESS FOR REVIEW PURSUANT TO
SUBSECTION (A) OF THIS SECTION.     "(C) COMPUTATION. 

"(1) CONTINUITY OF SESSION OF CONGRESS IS BROKEN ONLY BY AN
ADJOURNMENT SINE DIE; AND 

"(2) THE DAYS ON WHICH EITHER HOUSE IS NOT IN SESSION BECAUSE OF AN
ADJOURNMENT OF MORE THAN 3 DAYS TO A DAY CERTAIN ARE EXCLUDED IN THE
COMPUTATION OF THE 60-DAY PERIOD."  208, 45 U.S.C. 718 (1970 ED.,SUPP. 
III). 

/11/  SECTION 303(D) PROVIDES: 

"(D) APPEAL. 

"A FINDING OR DETERMINATION ENTERED PURSUANT TO SUBSECTION (C) OF
THIS SECTION MAY BE APPEALED DIRECTLY TO THE SUPREME COURT OF THE
UNITED STATES IN THE SAME MANNER THAT AN INJUNCTION ORDER MAY BE
APPEALED UNDER SECTION 1253 OF TITLE 28: PROVIDED, THAT SUCH APPEAL IS
EXCLUSIVE AND SHALL BE FILED IN THE SUPREME COURT NOT MORE THAN 5 DAYS
AFTER SUCH FINDING OR DETERMINATION IS ENTERED BY THE SPECIAL COURT. 
THE SUPREME COURT SHALL DISMISS ANY SUCH APPEAL WITHIN 7 DAYS AFTER
SUCH FINDING OR DETERMINATION IS ENTERED BY THE SPECIAL APPEAL WOULD
NOT BE IN THE INTEREST OF AN EXPEDITIOUS CONCLUSION OF THE PROCEEDINGS
AND SHALL GRANT THE HIGHEST PRIORITY TO THE DETERMINATION OF ANY SUCH
APPEALS WHICH IT DETERMINES NOT TO DISMISS." 

WE ARE NOT REQUIRED TO CONSIDER IN THIS CASE THE VALIDITY OF THIS
ATTEMPTED CONGRESSIONAL REGULATION OF THE COURT'S DISPOSITION OF ANY
APPEAL FROM A JUDGMENT ENTERED BY THE SPECIAL COURT PURSUANT TO
SUBSECTION (C). 

/12/  THE SUITS HERE WERE BROUGHT BY THE MAJOR CREDITORS AND SOLE
SHAREHOLDER OF PENN CE RAL.  PENN CENTRAL WAS THE PRODUCT OF THE MERGER
OF THE PENNSYLVANIA RAILROAD WITH THE NEW YORK CENTRAL RAILROAD.  PENN
CENTRAL MERGER CASES, 389 U.S. 486 (1968).  A CONDITION OF THAT MERGER
WAS PENN CENTRAL'S PROMISE TO TAKE IN THE NEW YORK, NEW HAVEN &
HARTFORD RAILROAD CO. AS AN OPERATING ENTITY, AND THAT PROMISE WAS
FULFILLED.  NEW HAVEN INCLUSION CASES, 399 U.S. 392 (1970). 

THE PENN CENTRAL OPERATION DOMINATES THE NORTHEAST-MIDWEST REGION. 
IT SERVES 55% OF THE NATION'S MANUFACTURING PLANTS EMPLOYING 60% OF THE
COUNTRY'S INDUSTRIAL EMPLOYEES.  MORE THAT 20% OF ALL FREIGHT CARS
LOADED IN THE UNITED STATES PASS OVER PENN CENTRAL'S 20,000 MILES OF
TRACK, AND OVER 70% OF PENN CENTRAL TRAFFIC INVOLVES OTHER RAILROADS. 
RAIL SERVICE IN THE MIDWEST AND NORTHEAST REGION, 39 FED.REG.  5392,
5401 (1974); H. R. REP. NO. 93 - 620, P. 26 (1973) (HEREINAFTER H.
REP.).  SINCE 1973 PENN CENTRAL (INCLUDING ITS LEASED LINES) ACCOUNTED
FOR 94% OF THE OPERATING MILEAGE AND 87% OF THE OPERATING REVENUES OF
THE SIX BANKRUPT RAILROADS INVOLVED UNDER THE RAIL ACT.  THE MERGER
FAILED TO REALIZE ANTICIPATED SAVINGS AND PENN CENTRAL ENTERED
REORGANIZATION PROCEEDINGS IN 1970, TWO YEARS AFTER THE MERGER WAS
APPROVED.  HUGE OPERATING LOSSES MADE REORGANIZATION INEVITABLE AND
HAVE CONTINUED.  THE FINANCIAL COLLAPSE OF THE PENN CENTRAL COMPANY,
SEC STAFF REPORT 86 (1972).  THE PENN CENTRAL TRUSTEES IN A REPORT OF
FEBRUARY 10, 1971, CONCERNING PREMISES FOR A REORGANIZATION, JOINT
DOCUMENTARY SUBMISSION NO. 1, CONCLUDED THAT THE "OVERRIDING PROBLEM OF
PENN CENTRAL . . . IS FOUND IN AN OBLIGATION TO PERFORM AS A PUBLIC
SERVICE COMPANY IN CERTAIN AREAS AND UNDER CERTAIN CONDITIONS WHICH
SIMPLY DO NOT LEND THEMSELVES TO PROFITABLE OPERATIONS, NO MATTER WHO
THE OPERATOR IS, OR HOW EFFICIENT.  THE ONLY POSSIBLE REMEDY HERE IS
FOR PUBLIC AUTHORITY TO LEND ITS HAND TO A SPEEDY ELIMINATION OF THE
CONDITIONS WHICH PRODUCE THE LOSSES, OR RESPOND WITH ADEQUATE
COMPENSATION IF IT INSISTS UPON A CONTINUANCE OF THE CONDITIONS." 

/13/  FOR REASONS STATED IN PART VI OF THIS OPINION, INFRA, WE HAVE
NO OCCASION TO PASS UPON THE CORRECTNESS OF THIS CONCLUSION. 

/14/  PART VIII - B OF THE SPECIAL COURT OPINION CONSIDERED THE
ARGUMENTS OF INVESTORS OF SEVERAL OF THE SMALLER LINES.  BUT THOSE
INVESTORS ARE NOT PARTIES TO THE CASES BEFORE US. 

PART VIII - C OF THE SPECIAL COURT'S OPINION DISCUSSES THE QUESTION
WHETHER THE COURT OF CLAIMS IS FREE TO DENY THE EXISTENCE OF THE TUCKER
ACT REMEDY IF ITS EXISTENCE SHOULD BE CHALLENGED BEFORE THE COURT OF
CLAIMS.  THE FACT THAT THE DISTRICT COURT BELOW CONCLUDED, CONTRARY TO
THE SPECIAL COURT, THAT THE TUCKER ACT REMEDY WAS NOT AVAILABLE WAS
VIEWED AS MAKING THE QUESTION A "PUZZLEMENT."  384 F.SUPP.,AT 957.  IN
CONSEQUENCE, THE SPECIAL COURT STAYED ITS ORDER REMANDING THE PENN
CENTRAL AND FOUR OTHER CASES FOR THE ENTRY OF ORDERS IN THE
REORGANIZATION COURTS AND AFFIRMING THE ORDERS DIRECTING THAT THE
READING AND ANN ARBOR REORGANIZATIONS PROCEED UNDER THE RAIL ACT UNTIL
"AFTER FINAL DETERMINATION BY THE SUPREME COURT" OF THE INSTANT
APPEALS.  ID., AT 958. 

/15/  THE SEVERLY LIMITED FUNDS AVAILABLE PURSUANT TO 213 AND 215
FOR EMERGENCY ASSISTANCE AND PLANT MAINTENANCE PENDING IMPLEMENTATION
OF THE FINAL SYSTEM PLAN DO NOT ASSURE THAT ADEQUATE COMPENSATION WILL
BE AVAILABLE FOR ANY "EROSON TAKING."  SECTION 213 PROVIDES $85 MILLION
IN EMERGENCY GRANTS FOR CONTINUED ESSENTIAL TRANSPORTATION SERVICES
WHILE 215 PROVIDES $150 MILLION IN USRA OBLIGATIONS FOR MAINTENANCE AND
IMPROVEMENT OF PLANT. 

NOR IS ADEQUATE ASSURANCE PROVIDED BY THE POSSIBILITY THAT CONRAIL
SECURITIES AND OTHER BENEFITS CAN BE PROVIDED FOR UNCONSTITUTIONAL
EROSION WHEN THE SPECIAL COURT DETERMINES THE PROPER CONSIDERATION FOR
THE RAIL PROPERTIES CONVEYED TO CONRAIL.  AS THE SPECIAL COURT ITSELF
FOUND: 

"THE GOVERNMENT PARTIES (CONTEND) THAT . . . THIS COURT COULD
COMPENSATE FOR ANY UNCONSTITUTIONAL EROSION IN THE FINAL SYSTEM PLAN,
EITHER BY FIXING A VALUATION DATE PRIOR TO THE DATE OF CONVEYANCE OR BY
A SPECIFIC AWARD, 303(C)(2)(B), OR A DEFICIENCY JUDGMENT AGAINST
CONRAIL UNDER 303(C)(2)(C).  THE EARLIER VALUATION DATE METHOD WOULD
HARDLY BE SATISFACTORY EVEN IF PERMISSIBLE, (*) SINCE THIS WOULD NOT
CURE EROSION WITH RESPECT TO RAIL PROPERTIES THAT WERE NOT CONVEYED. 
IT WOULD BE PERMISSIBLE FOR THE FINAL SYSTEM PLAN TO PROVIDE OR FOR US
TO DIRECT THAT COMPENSATION FOR EROSION SHOULD BE MADE IN THE CASE OF
ANY RAILROAD SOME OF WHOSE PROPERTIES ARE CONVEYED.  HOWEVER, IF, AS
THE OPPONENTS URGE, THE CONSIDERATION NOW AUTHORIZED IS INADEQUATE AS
COMPENSATION FOR THE PROPERTIES THEMSELVES, ENLARGING THE AMOUNT OF
CLAIMS THAT MAY BE MADE AGAINST IT WOULD BE OF NO AVAIL." 

     (*) THE HOUSE VERSION OF THE ACT, AS EXPLAINED BY THE REPORT
ACCOMPANYING IT, PROVIDED THAT

"(THE VALUE OF CONSIDERATION MUST EQUAL THE FAIR AND EQUITABLE VALUE
OF THE RAIL PROPERTIES AS OF THE DATE OF THE CONVEYANCE.'  HOUSE REPORT
AT 53.  HOWEVER, THE ACT CONTAINS NO SUCH LIMITATION AND THE CONFERENCE
REPORT, H. R. REP. NO. 93 - 774, 93RD CONG., 1ST SESS. (1973), MAKES NO
MENTION OF THE DELETION."  384 F.SUPP.,AT 928. 

/16/  AS THIS PASSAGE FROM YEARSLEY INDICATES, THE GOVERNMENT ACTION
MUST BE AUTHORIZED.  "THE TAKING OF PRIVATE PROPERTY BY AN OFFICER OF
THE UNITED STATES FOR PUBLIC USE, WITHOUT BEING AUTHORIZED, EXPRESSLY
OR BY NECESSARY IMPLICATION, TO DO SO BY SOME ACT OF CONGRESS, IS NOT
THE ACT OF THE GOVERNMENT," AND HENCE RECOVERY IS NOT AVAILABLE IN THE
COURT OF CLAIMS.  HOOE V. UNITED STATES, 218 U.S. 322, 336 (1910).  SEE
ALSO YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579, 585 (1952). 
THESE CASES ARE INAPPOSITE SINCE THE GOVERNMENT ACTIONS AT ISSUE HERE
ARE AUTHORIZED BY THE RAIL ACT. 

/17/  "MR. HARTKE.  WE ARE PROVIDING THAT THE CREDITORS OF THIS
CORPORATION WOULD BE REQUIRED TO TAKE COMMON STOCK IN THE NEW QUASI
GOVERNMENT OPERATION.  IN OTHER WORDS, THEY ARE EXCHANGING THEIR
PRESENT SECURITY INTEREST IN THE RAIL PROPERTIES FOR COMMON STOCK IN
THE NEW CORPORATION. 

"THE RAILROAD PROPERTIES THEN BECOME THE PROPERTIES OF THE NEW
CORPORATION FREE AND CLEAR OF LIENS AND ENCUMBRANCES.  IN OTHER WORDS,
THE ASSETS ARE BEING TRANSFERRED AND THE RIGHTS ARE BEING CHANGED.  THE
NONRAILROAD PROPERTY WILL REMAIN IN THE BANKRUPTCY COURT TO BE DEALT
WITH BY THEM.  ONE CAN TALK ABOUT WHAT IS AVAILABLE IF THE RAILROAD IS
LIQUIDATED AND PUT THROUGH THE WRINGER, BUT EVEN THEN THE CHANCES OF
THESE CREDITORS GETTING THEIR MONEY IS (SIC) RELATIVELY SLIM, AND THIS
COUNTRY CANNOT AFFORD CESSATION OF RAIL SERVICE WHILE THE RAILROADS ARE
PUT THROUGH THE WRINGER.  SO WHAT, IN EFFECT, IS CALLED THE 'CRAM DOWN'
THEORY FORCES THEM TO ACCEPT THIS KIND OF SETTLEMENT AND JUDGES HAVE
RULES THAT THIS IS FAIR.  IF WE DID NOTHING WHILE CONTINUING TO MANDATE
RAIL SERVICE, THERE IS THE DISTINCT POSSIBILITY IN VIEW OF THE PRIOR
ACTION OF CONGRESS THAT A NUMBER OF THESE PEOPLE COULD MAKE A CLAIM
AGAINST THE GOVERNMENT WHICH COULD BE SUSTAINED IN THE COURT OF
CLAIMS." 

/18/  "MR. KUYKENDALL.  MR. SPEAKER, I WOULD LIKE TO ASK THE
GENTLEMAN FROM WASHINGTON TO CLARIFY ONE POINT, AND THAT IS THE MATTER
OF THE DEFICIENCY JUDGMENT.  THERE WAS A LOT OF COLLOQUY IN THE
ORIGINAL DEBATE WHICH EXPRESSED FEARS THAT THE FEDERAL COURT HAD THE
KEY TO THE TREASURY. 

"WILL THE GENTLEMAN GIVE US HIS INTERPRETATION OF THE GUARANTEES WE
HAVE TO KEEP THAT FROM HAPPENING IN THE COURT PROCEEDINGS? 

"MR. ADMAS.  MR. SPEAKER, THERE IS A DEFINITE LIMITATION ON THE
TOTAL AMOUNT THAT CAN BE AUTHORIZED UNDER THIS BILL.  ANY AMOUNTS THAT
GO BEYOND THAT, OR THE SHIFTING OF THE WAY IN WHICH IT IS SPENT, IS TO
BE APPROVED BY AN ACT OF CONGRESS, TO BE SIGNED BY THE PRESIDENT.  IT
IS DEFINED AS A JOINT RESOLUTION IN THE BILL, AND THE STATEMENT OF THE
MANAGERS, AND IT WAS THE CLEAR INTENT OF THE MANAGERS THAT ANY AMOUNT
OTHER THAN COMMON STOCK WAS TO BE AT THE LOWEST POSSIBLE LIMIT TO MEET
THE CONSTITUTIONAL GUARANTEES. 

"MR. KUYKENDALL.  MR. SPEAKER, IT IS NOT TRUE, I WILL ASK THE
GENTLEMAN FROM WASHINGTON (MR. ADAMS) THAT THE CREDITORS, OF COURSE,
ARE GIVEN PROTECTION, AND THAT THE BOARD OF DIRECTORS, UNDER THE
CONTROL OF GOVERNMENT OFFICIALS, IS THE OWNER OF THE ENTIRE BLOCK OF
STOCK OF 100 MILLION SHARES, WHATEVER IT IS? 

"MR. ADAMS.  THE GENTLEMAN IS CORRECT.  IT IS CONTROLLED BY THE UNITED
STATES, SO LONG AS THE SECRETARY DETERMINES THAT THERE IS AN AMOUNT OF
OBLIGATION FUNDS WHICH THE UNITED STATES MIGHT, IN ANY WAY EVER, HAVE
TO HAVE ANYTHING TO DO WITH. 

"DURING THAT PERIOD OF TIME, IT IS CONTROLLED BY A BOARD OF
DIRECTORS WHICH CONSISTS OF GOVERNMENT OFFICIALS. 

"MR. KUYKENDALL.  THERE IS NO WAY THE FEDERAL COURT MAY ASSESS THE
TAXPAYERS OR THIS CONGRESS ON THE JUDGMENTS OF THE CREDITORS; IS THAT
CORRECT? 

"MR. ADAMS.  THE GENTLEMAN IS CORRECT. 

"MR. KUYKENDALL.  THERE IS NO WAY THEY CAN ASSESS THE CONGRESS FOR
THE MONEY? 

"MR. ADAMS.  THE GENTLEMAN IS CORRECT." 

/19/  TR. OF ORAL ARG. 50 - 51. 

AT THREE OTHER TIMES DURING ORAL ARGUMENT REPRESENTATIVE ADAMS
IMPLIED THAT THE TUCKER ACT WAS AVAILABLE FOR TAKINGS RESULTING FROM
THE RAIL ACT.  SEE ID., AT 48 ("AS JUSTICE WHITE WAS ASKING IN HIS
QUESTION, IS THERE A RIGHT TO SUE FOR SOME FAILURE--MAYBE WE HOLD A
PARTY TOO LONG, THEN THEY COULD"); ID., AT 49 ("NOW AS FAR AS THE
CAUSBY CASE IS CONCERNED, HURLEY V. KINCAID AND THE OTHER TUCKER ACT
CASES, WE DID NOT TRY TO REPEAL THE FIFTH AMENDMENT OR CERTAINLY REPEAL
THE TUCKER ACT JURISDICTIONAL STATEMENTS"); ID., AT 50 ("IF YOU DECIDE,
HOWEVER, THAT THERE MAY BE, SOME PLACE ALONG THE LINE, IN THE LAWFUL
PROCESS, A MISTAKE, THEN YOU REACH AND SAY THE TUCKER ACT CASE WILL
HAVE TO BE DECIDED WHEN AND IF SOME PARTY CAN DECIDE THAT THEY HAVE
CREATED A CASE ON THE MERITS"). 

/20/  THE CONVEYANCE PROVISIONS ARE THE HEART OF THE RAIL ACT. 
THUS, IF IT WERE CLEAR THAT THEY WERE UNCONSTITUTIONAL, A STRONG
ARGUMENT MIGHT BE MADE THAT THEY ARE INSEVERABLE FROM THE REMAINDER OF
THE ACT AND THAT THE ACT AS A WHOLE IS VOID. 

/21/  THE NEW HAVEN TRUSTEE IN HIS REPLY BRIEF 45 - 46, SEEMS TO
CONCEDE THAT VALUATION AT MARKET VALUE OF ANY CONRAIL STOCK MAY BE
SUFFICIENT.  HE THEN SUGGESTS, HOWEVER, THAT IT MIGHT BE IMPOSSIBLE,
FOR LEGAL AND PRACTICAL REASONS, TO OFFER CONRAIL STOCK PUBLICLY FOR
MANY YEARS.  THUS, HE CLAIMS, THERE WILL BE NO WAY TO ASCERTAIN MARKET
VALUE, AND HE IMPLIES THAT THE MARKET VALUE WILL EFFECTIVELY BE ZERO. 

/22/  AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240 - 242
(1937); MARYLAND CASUALTY CO. V. PACIFIC COAL & OIL CO., 312 U.S. 270,
273 (1941); JOINT ANTI-FACIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S.
123, 140 - 141 (1951); ID., AT 154 - 155 (FRANKFURTER, J.,
CONCURRING). 

/23/  ASHWANDER V. TVA, 297 U.S. 288, 346 - 347 (1936) (BRANDEIS,
J., CONCURRING); POE V. ULLMAN, 367 U.S. 497, 502 - 503 (1961). 

/24/  JUDGE FULLAM DISAGREED WITH THE MAJORITY BELOW ON THE RIPENESS
OF SOME OF THE FINAL-CONVEYANCE ISSUES, 383 F.SUPP.,AT 530 - 533. 
AMONG OTHER THINGS, HE OBSERVED THAT THE VALIDITY OF THE FINAL
CONVEYANCE PROVISIONS WAS INEXTRICABLY INTERWOVEN WITH THE ISSUES
CONCERNING INTERIM EROSION WHICH THE THREE-JUDGE COURT DID ADDRESS.  AS
SUGGESTED, SUPRA, AT 122 - 124, THE CONSTITUTIONALITY OF REQUIRING
DEFICIT RAILROAD OPERATIONS BY A RAILROAD IN REORGANIZATION MAY DEPEND
IN PART UPON THE LIKELIHOOD OF A SUCCESSFUL REORGANIZATION; IF THE
PROVISIONS FOR THE FINAL CONVEYANCE WERE FACIALLY UNCONSTITUTIONAL,
THERE WOULD BE LITTLE LIKELIHOOD OF SUCH REORGANIZATION, AND IT MIGHT
BE NECESSARY TO PERMIT IMMEDIATE ABANDONMENT FOR THAT REASON ALONE. 
383 F.SUPP.,AT 530 - 533.  WE BELIEVE, UNLIKE JUDGE FULLAM, THAT THE
TUCKER ACT IS AVAILABLE TO COMPENSATE ANY UNCONSTITUTIONAL TAKING WHICH
MIGHT ARISE FROM INTERIM EROSION.  SEE SUPRA, AT 125 - 136.  HOWEVER,
HIS OBSERVATION ABOUT THE INTERRELATIONSHIP OF THE "EROSION TAKING" AND
THE "CONVEYANCE TAKING" ISSUES IS STILL PERTINENT.  IF IT WERE ENTIRELY
CLEAR THAT NO REORGANIZATION COULD TAKE PLACE UNDER THE ACT BECAUSE ITS
CONVEYANCE PROVISIONS WERE UNCONSTITUTIONAL, IT MIGHT BE POINTLESS TO
PERMIT CONTINUING EROSION OF THE ESTATE AND THE INEVITABLE BUILDUP OF A
HUGE TUCKER ACT CLAIM.  THUS, WE WOULD HAVE TO DECIDE WHETHER THOSE
PORTIONS OF THE ACT SEVERELY LIMITING ABANDONMENTS ARE SEVERABLE FROM
THE CONVEYANCE PROVISIONS.  BECAUSE WE FIND THAT SOME OF THE FINAL
CONVEYANCE ISSUES REQUIRE RESOLUTION AT THIS JUNCTURE FOR INDEPENDENT
REASONS, WE NEED NOT DETERMINE WHETHER WE WOULD HAVE TO CONFRONT ANY OF
THEM ANYWAY IN ORDER COMPLETELY TO DETERMINE THE VALIDITY OF THE
ABANDONMENT PROVISIONS.     /25/  IT MIGHT BE APPROPRIATE UNDER
DIFFERENT CIRCUMSTANCES ONLY TO DECIDE THAT THE ISSUES ARE RIPE, AND TO
REMAND TO THE DISTRICT COURT FOR THEIR DETERMINATION ON THE MERITS. 
HOWEVER, SUCH A REMAND HERE WOULD BE BOTH UNDESIRABLE AND UNNECESSARY. 
THE RAIL ACT PROVIDES A STRICT TIMETABLE FOR ITS IMPLEMENTATION.  ANY
DELAY OCCASIONED BY REMANDING TO THE DISTRICT COURT COULD SERIOUSLY
IMPEDE THAT TIMETABLE AND FRUSTRATE THE ACCOMPLISHMENT OF THE RAIL
ACT'S OBJECTIVES.  FURTHER, THESE ISSUES HAVE BEEN FULLY VENTILATED BY
THESE SAME PARTIES IN THE SPECIAL COURT, WHICH PROCEEDED TO DECIDE
THEM. 

/26/  THE PARTIES HAVE STIPULATED THAT "(IT IS LIKELY" THAT SOME OF
THE RAIL PROPERTIES OF PENN CENTRAL WILL BE DESIGNATED FOR TRANSFER,
SALE, OR OTHER CONVEYANCE IN ANY FINAL SYSTEM PLAN EXECUTED UNDER THE
RAIL ACT.  APP. 205, 318 - 319, 370 - 371.  SINCE THE PENN CENTRAL
SYSTEM HOLDS AN OVERWHELMING PERCENTAGE OF THE TRACKAGE, SEE N. 12,
SUPRA, TO BE REORGANIZED UNDER THE ACT, IT IS INCONCEIVABLE THAT ALL OF
THE PENN CENTRAL RAIL PROPERTIES COULD BE ELIMINATED FROM THE FINAL
SYSTEM PLAN WITHOUT DESTROYING THE POSSIBILITY OF ACHIEVING THE GOALS
OF THE ACT.  SEE 101, 206(A), 45 U.S.C. 701, 716 (1970 ED.,SUPP. 
III).  WHILE THE ACT DOES CONTEMPLATE THAT, UNDER THE FINAL SYSTEM
PLAN, SOME OF THE RAIL PROPERTIES MAY BE DESIGNATED FOR TRANSFER TO
EXISTING PROFITABLE RAILROADS, 206(C)(1)(B), 206(D)(2), 209(C)(2),
303(A)(2), 303(B), 45 U.S.C. 701(C)(1)(B), 716(D)(2), 719(C)(2),
743(A)(2), 743(B) (1970 ED.,SUPP.  III), NO SUCH TRANSFER CAN OCCUR
UNLESS THE PURCHASER RAILROAD AGREES TO THE PURCHASE.  206(D)(4).  IF
ANY SUBSTANTIAL PORTION OF THE PENN CENTRAL RAIL PROPERTIES WERE AN
ATTRACTIVE INVESTMENT FOR AN EXISTING RAILROAD, THE REORGANIZATION OF
THE PENN CENTRAL PRESUMABLY COULD HAVE BEEN ACCOMPLISHED UNDER 77,
WITHOUT RECOURSE TO THE NOVEL PLAN ENVISIONED BY THE ACT.  THUS, WE CAN
PROPERLY ASSUME THAT SOME PENN CENTRAL PROPERTIES WILL BE TRANSFERRED
TO CONRAIL. 

/27/  SECTION 209(A) PROVIDES THAT "(NOTWITHSTANDING ANY OTHER
PROVISION OF LAW, THE FINAL SYSTEM PLAN . . . IS NOT SUBJECT TO REVIEW
BY ANY COURT EXCEPT IN ACCORDANCE WITH THIS SECTION.  AFTER THE FINAL
SYSTEM PLAN BECOMES EFFECTIVE UNDER SECTION 718 FO THIS TITLE, IT MAY
BE REVIEWED WITH RESPECT TO MATTERS CONCERNING THE VALUE OF THE RAIL
PROPERTIES TO BE CONVEYED UNDER THE PLAN AND THE VALUE OF THE
CONSIDERATION TO BE RECEIVED FOR SUCH PROPERTIES." 

COMPENSATION PROVIDED IN THE FINAL SYSTEM PLAN HAS BEEN DEPOSITED WITH
THE SPECIAL COURT PURSUANT TO 303(A), THE SPECIAL COURT "SHALL" ORDER
THE CONVEYANCE.  SECTION 303(B)(2) PROVIDES THAT THE CONVEYANCE "SHALL
NOT BE RESTRAINED OR ENJOINED BY ANY COURT." 

FINALLY, 303(C)(1) PROVIDES:  "AFTER THE RAIL PROPERTIES HAVE BEEN
CONVEYED . . . THE SPECIAL COURT . . . SHALL DECIDE . . . WHETHER THE
TRANSFERS OR . . . CONVEYANCES ARE IN THE PUBLIC INTEREST AND ARE FAIR
AND EQUITABLE.  . . ."  (EMPHASIS ADDED.)  THUS, THE STATUTORY COMMAND
IS THAT ONCE THE FINAL SYSTEM PLAN HAS BEEN PRESENTED TO CONGRESS AND
NOT DISAPPROVED, THE SPECIAL COURT CAN REVIEW IT ONLY AFTER IT HAS
ORDERED THE CONVEYANCE. 

/28/  THE SENATE BILL CONTAINED A PROVISION THAT MIGHT BE READ AS
AUTHORIZING THE SPECIAL COURT TO REFUSE TO ORDER THE CONVEYANCE IF IT
FOUND IT NOT FAIR AND EQUITABLE.  S. 2767, 303(C)(2).  SEE S. REP. 35. 
HOWEVER, THIS PROVISION WAS DELETED.  IT SEEMS FUNDAMENTALLY AT ODDS
WITH 303(B) AND (C)(1) OF THE SENATE BILL, AND WITH THE INTENT
EXPRESSED BY THE SENATE COMMITTEE REPORT, AS CITED IN THE TEXT.  WE
INFER, THEREFORE, THAT THE PROVISION WAS ELIMINATED AT CONFERENCE
PRECISELY TO MAKE CLEAR THAT THE ORDER OF CONVEYANCE IS MANDATORY, AND
THAT ANY LITIGATION CONCERNING VALUATION IS TO OCCUR AFTER THE
TRANSFER.  SEE H. R. CONF. REP. NO. 93 - 744, PP. 57, 58 (1973), WHICH
STATES THAT, EXCEPT FOR CERTAIN PROVISIONS NOT PERTINENT HERE, THE
FINAL BILL FOLLOWS THE SENATE VERSION OF THE IMPLEMENTATION SCHEME,
"SUBJECT TO TECHNICAL AND CLARIFYING CHANGES."  (EMPHASIS ADDED). 

/29/  FOR THIS REASON, DECISIONS CONCERNING JUSTICIABILITY OF CASES
OF APPREHENDED CRIMINAL PROSECUTION ARE NOT PERTINENT.  BECAUSE THE
DECISION TO INSTIGATE A CRIMINAL PROSECUTION IS USUALLY DISCRETIONARY
WITH THE PROSECUTING AUTHORITIES, EVEN A PERSON WITH A SETTLED
INTENTION TO DISOBEY THE LAW CAN NEVER BE SURE THAT THE SANCTIONS OF
THE LAW WILL BE INVOKED AGAINST HIM.  FURTHER, WHETHER OR NOT THE
INJURY WILL OCCUR IS TO SOME EXTENT WITHIN THE CONTROL OF THE
COMPLAINING PARTY HIMSELF, SINCE HE CAN DECIDE TO ABANDON HIS INTENTION
TO DISOBEY THE LAW.  FOR THESE REASONS, THE MATURITY OF SUCH DISPUTES
FOR RESOLUTION BEFORE A PROSECUTION BEGINS IS DECIDED ON A CASE-BY-CASE
BASIS, BY CONSIDERING THE LIKELIHOOD THAT THE COMPLAINANT WILL DISOBEY
THE LAW, THE CERTAINTY THAT SUCH DISOBEDIENCE WILL TAKE A PARTICULAR
FORM, ANY PRESENT INJURY OCCASIONED BY THE THREAT OF PROSECUTION, AND
THE LIKELIHOOD THAT A PROSECUTION WILL ACTUALLY ENSUE.  COMPARE GOLDEN
V. ZWICKLER, 394 U.S. 103 (1969), WITH ALBERTSON V. SACB, 382 U.S. 70
(1965); STEFFEL V. THOMPSON, 415 U.S. 452, 459 (1974). 

/30/  THE FINAL SYSTEM PLAN WILL BECOME "EFFECTIVE" IF IT IS NOT
DISAPPROVED BY EITHER HOUSE OF CONGRESS WITHIN 60 CALENDAR DAYS OF
CONTINUOUS SESSION FROM THE TIME IT IS TRANSMITTED TO CONGRESS. 
102(4), 208(A), 209(A).  AFTER THAT, IT MAY STILL HAVE TO BE CHANGED IF
USRA IS UNABLE TO EXECUTE AGREEMENTS WITH PROFITABLE RAILROADS FOR
PURCHASES FROM THE REORGANIZED RAILROADS (WITHIN 30 DAYS OF THE
EFFECTIVE DATE) OR FOR SALES TO CONRAIL OR TO OTHER PROFITABLE
RAILROADS (WITHIN 90 DAYS OF THE EFFECTIVE DATE).  206(D)(4).  THUS, IT
IS POSSIBLE THAT THE FINAL SYSTEM PLAN TO BE CERTIFIED TO THE SPECIAL
COURT WILL NOT BE KNOWN UNTIL 60 DAYS AFTER THE EFFECTIVE DATE OF THE
PLAN.  THE PLAN MUST BE CERTIFIED WITHIN 90 DAYS OF THE EFFECTIVE DATE;
HOWEVER, IT CAN BE CERTIFIED EARLIER.  209(C). 

/31/  THE SPECIAL COURT MAY HAVE JURISDICTION DERIVED FROM THE
CONSTITUTION ITSELF TO REFUSE TO CONVEY IF THE TERMS OF THE TRANSFER
ARE CLEARLY UNCONSTITUTIONAL.  SEE SUPRA, AT 142.  BUT, AS THE SPECIAL
COURT NOTED, ANY SUCH REVIEW WOULD BE HASTY AND MADE WITHOUT ADEQUATE
INFORMATION.  384 F.SUPP.,AT 934.  THUS, WHILE REVIEW AT THIS STAGE IS
A THEORETICAL POSSIBILITY, IT WOULD NOT AFFORD A BETTER OPPORTUNITY
THAN THE PRESENT ONE FOR AN INFORMED DECISION IN LIGHT OF WELL
DEVELOPED FACTS. 

/32/  SEE ALSO N. 36, INFRA. 

/33/  THE HOUSE BILL ATTEMPTED TO DEFINE THE VALUATION THEORY TO BE
APPLIED TO THE RAIL PROPERTIES CONVEYED.  H. R. 9142, 102(5); SEE H.
REP. 31.  HOWEVER, THE DEFINITION OF "FAIR AND EQUITABLE VALUE" IS NOT
IN THE RAIL ACT AS ADOPTED. 

/34/  THE NEW HAVEN TRUSTEE'S CONTENTION THAT THE CONVEYANCE
PROVISIONS WILL CONSTITUTE A TAKING BECAUSE THEY MANDATE CONTINUATION
OF RAIL SERVICES INDEFINITELY IS SIMILARLY PREMATURE, BECAUSE IT IS
PREMISED UPON A HYPOTHETICAL RELATIONSHIP BETWEEN THE RAILROAD'S
LIQUIDATION VALUE FOR "HIGHEST AND BEST USE" AND ITS VALUE AS A GOING
CONCERN.  BOTH OF THESE VALUES ARE BY STIPULATION UNKNOWN, AND THE
PROPER METHOD OF VALUING THE RAILROAD PROPERTIES IS ITSELF NOT
JUSTICIABLE NOW. 

/35/  IT IS ALSO CONTENDED THAT THE TUCKER ACT IS INADEQUATE SINCE
CONGRESS MAY NOT APPROPRIATE THE MONEY AWARDED BY THE COURT OF CLAIMS. 
BUT, AS MR. JUSTICE HARLAN WROTE, "THERE SEEMS TO BE NO SOUND REASON
WHY THE COURT OF CLAIMS MAY NOT RELY ON THE GOOD FAITH OF THE UNITED
STATES."  GLIDDEN CO. V. ZDANOK, 370 U.S. 530, 571 (1962).  SEE ALSO
ALBERT HANSON LUMBER CO. V. UNITED STATES, 261 U.S. 581, 587 (1923);
SILESIAN-AMERICAN CORP. V. CLARK, 332 U.S. 469, 480 (1947). 

WE REJECT AS WELL THE SUGGESTION THAT A TUCKER ACT REMEDY COMES TOO
LATE.  SEE HURLEY V. KINCAID, 285 U.S. 95 (1932).  INTEREST ON A JUST
COMPENSATION AWARD RUNS FROM THE DATE OF THE TAKING.  SEE, E.G., UNITED
STATES V. THAYER-WEST POINT HOTEL CO., 329 U.S. 585, 588 (1947). 
FINALLY, CONTRARY TO THE SUGGESTION OF SOME OF THE PLAINTIFFS BELOW, WE
SEE NO REASON WHY A TUCKER ACT REMEDY IS INADEQUATE BECAUSE THE
VALUATIONS INVOLVED MAY BE COMPLEX.  CF. PHILLIPS V. COMMISSIONER, 283
U.S. 589, 596 - 601 (1931). 

ALL OF THE ARGUMENTS CONCERNING INADEQUACY OF THE TUCKER ACT REMEDY
ARE PRESSED WITH REGARD TO BOTH THE ALLEGED "EROSION TAKING" AND THE
ALLEGED "CONVEYANCE TAKING."  AS WITH THE AVAILABILITY OF THE TUCKER
ACT REMEDY, SEE SUPRA, AT 148, THERE IS NO DISTINCTION BETWEEN THESE
ARGUMENTS OR THEIR RESOLUTIONS IN THE TWO CONTEXTS. 

/36/  TO DELAY UNTIL ANY COURT OF CLAIMS ADJUDICATION WITH RESPECT
TO THE FORM OF CONSIDERATION PROVIDED BY THE ACT WOULD BE EXCEEDINGLY
IRRESPONSIBLE:  WHILE THE FACT THAT CONGRESS DID NOT CONTEMPLATE A
TAKING DOES NOT PRETERMIT A TUCKER ACT REMEDY, IT DOES SUGGEST THAT
CONGRESS MIGHT WISH TO CONSIDER WHETHER TO ABANDON THE WHOLE ACT IF IT
TURNED OUT THAT THE ENTIRE VALUE OF THE RAIL PROPERTIES MUST BE PAID IN
CASH. 

/37/  AT LEAST TWO OF THE COMPLAINING PARTIES AGREE THAT, TO THE
EXTENT COMPENSATION TO THE RAIL ESTATES IS PAID IN OBLIGATIONS OF USRA
BACKED BY FEDERAL GUARANTEES, THE SECURITIES CAN BE FIGURED AT FACE
VALUE AS THE PERFECT EQUIVALENT OF MONEY.  REPLY BRIEF FOR CROSS
APPELLANT NEW HAVEN TRUSTEE 45; BRIEF FOR APPELLEE PENN CENTRAL CO.
56.  SEE 206(H), 210, 303(C)(2). 

/38/  THE SPECIAL-BENEFITS RULE OF COMPENSATION MAY LATER HAVE
DIRECT RELEVANCE TO THE PENN CENTRAL REORGANIZATION.  THE ACT PROVIDES
THAT DETERMINATION OF THE FAIRNESS AND EQUITY OF THE TERMS OF THE
TRANSFER SHOULD TAKE INTO ACCOUNT "SECURITIES AND OTHER BENEFITS"
(EMPHASIS ADDED) PROVIDED TO THE RAILROAD ESTATE.  303(C)(2).  SEE ALSO
206(D)(1).  THE PARTIES HERE DISAGREE ABOUT WHAT "OTHER BENEFITS" MAY
BE UNDER THE ACT, AND THE EXTENT TO WHICH ANY SUCH MAY BE COUNTED AS
CONSTITUTIONAL CONSIDERATION.  IN PARTICULAR, THERE IS A DISPUTE OVER
WHETHER THE SUMS UP TO $250,000,000 IN BENEFITS TO BE PAID CONRAIL AS
REIMBURSEMENT FOR CERTAIN LABOR EXPENSES ARE "OTHER BENEFITS" TO BE
COUNTED IN EVALUATING THE EXCHANGE.  SEE 509, 45 U.S.C. 779, (1970
ED.,SUPP.  III).  FOR THE REASONS GIVEN SUPRA, AT 146 - 147, WITH
RESPECT TO OTHER VALUATION PROBLEMS, THIS ISSUE IS PRESENTLY
PREMATURE. 

/39/  THE CLAIM IS ALSO MADE THAT, WHATEVER THE FORM OF COMPENSATION
PROPER UNDER THE FIFTH AMENDMENT, THE LEGISLATURE CANNOT SPECIFY THE
FORM OF COMPENSATION BUT MUST LEAVE THE DECISION TO THE JUDICIARY. 
THIS ARGUMENT IS BASED UPON AN ERRONEOUS READING OF MONONGAHELA
NAVIGATION CO. V. UNITED STATES, 148 U.S. 312, 327 (1892).  MONONGAHELA
HELD ONLY THAT THE LEGISLATURE COULD NOT, BY SETTING EITHER A FIXED
AMOUNT TO BE PAID FOR PROPERTY CONDEMNED OR A PRINCIPLE FOR ARRIVING AT
THAT AMOUNT, SETTLE THE CONSTITUTIONAL RIGHT TO JUST COMPENSATION. 
THUS, MONONGAHELA DID NO MORE THAN RESTATE THE GENERAL PRINCIPLE THAT
THE COURTS, NOT THE LEGISLATURE, ARE ULTIMATELY ENTRUSTED WITH ASSURING
COMPLIANCE WITH CONSTITUTIONAL COMMANDS.  IT SAID NOTHING ABOUT WHETHER
CONGRESS CAN DICTATE THE MODE OF COMPENSATION RATHER THAN THE AMOUNT. 

/40/  SECTION 301(D) PROVIDES: 

"(D) BOARD OF DIRECTORS. 

"THE BOARD OF DIRECTORS OF (CONRAIL) SHALL CONSIST OF 15 INDIVIDUALS
SELECTED IN ACCORDANCE WITH THE ARTICLES AND BYLAWS OF (CONRAIL):
PROVIDED, THAT SO LONG AS 50 PER CENTUM OR MORE, AS DETERMINED BY THE
SECRETARY OF THE TREASURY, OF THE OUTSTANDING INDEBTEDNESS OF (CONRAIL)
CONSISTS OF OBLIGATIONS OF (USRA) OR OTHER DEBTS OWING TO OR GUARANTEED
BY THE UNITED STATES, THREE OF THE MEMBERS OF SUCH BOARD SHALL BE THE
SECRETARY (OF TRANSPORTATION), THE CHAIRMAN AND THE PRESIDENT OF (USRA)
AND FIVE OF THE MEMBERS OF SUCH BOARD SHALL BE INDIVIDUALS APPOINTED AS
SUCH BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE
SENATE." 

/41/  AN ATTEMPT IS MADE TO DISTINGUISH THE "CRAM-DOWN" PROVISIONS
OF 77(E) BECAUSE 77(E) PROVIDES FOR A VOTE OF ALL CLASSES OF CREDITORS
AFTER THE REORGANIZATION COURT HAS DETERMINED THAT A PLAN IS FAIR AND
EQUITABLE.  A "CRAM-DOWN" IS PERMITTED ONLY IF THE REORGANIZATION COURT
FINDS ANY OBJECTION BY A CLASS OF CREDITORS "NOT REASONABLY
JUSTIFIED."  BUT THE CREDITORS' RIGHT TO OBJECT TO A PLAN APPROVED BY
THE COURT HAS A SEVERELY LIMITED SCOPE.  "IF A PLAN GIVES FAIR AND
EQUITABLE TREATMENT TO DISSENTERS, THE ELEMENTS WHICH MAKE THE PLAN
FAIR AND EQUITABLE CANNOT BE THE BASIS FOR A REASONABLY JUSTIFIED
REJECTION."  RFC V. DENVER & R.G.W.R. CO., 328 U.S. 495, 535 (1946).  A
"REASONABLE" OBJECTION MUST BE BASED UPON FACTS ARISING AFTER THE
ORIGINAL APPROVAL OF THE PLAN BY THE COURT.  IBID.  THE OMISSION IN THE
RAIL ACT OF THIS VERY LIMITED RIGHT OF OBJECTION CANNOT CONSTITUTE THE
ACT AN EMINENT DOMAIN STATUTE. 

/42/  CONTINENTAL BANK EXPRESSLY NOTES THAT 77 DOES NOT REPRESENT
THE LIMITS OF THE BANKRUPTCY POWER.  294 U.S.,AT 671. 

/43/  NONE OF THE PARTIES QUESTION THAT ANY "TAKING" EFFECTED BY THE
RAIL ACT WILL BE FOR "PUBLIC USE."  CF. BERMAN V. PARKER, 348 U.S. 26
(1954). 

/44/  THE COURT OBSERVED THAT IT IS NOT UNUSUAL FOR RAILROADS TO
RECEIVE DISPARATE TREATMENT UNDER THE BANKRUPTCY LAWS: 

"RAILWAY CORPORATIONS HAD BEEN DEFINITELY EXCLUDED FROM THE
OPERATION OF THE LAW IN 1910 (C. 412, 4, 36 STAT. 838, 839), PROBABLY
BECAUSE SUCH CORPORATIONS COULD NOT BE LIQUIATED IN THE ORDINARY WAY OR
BY A DISTRIBUTION OF ASSETS.  A RAILWAY IS A UNIT; IT CAN NOT BE
DIVIDED UP AND DISPOSED OF PIECEMEAL LIKE A STOCK OF GOODS.  IT MUST BE
SOLD, IF SOLD AT ALL, AS A UNIT AND AS A GOING CONCERN.  ITS
ACITIVITIES CAN NOT BE HALTED BECAUSE ITS CONTINUOUS, UNINTERRUPTED
OPERATION IS NECESSARY IN THE PUBLIC INTEREST; AND, FOR THE
PRESERVATION OF THAT INTEREST, AS WELL AS FOR THE PROTECTION OF THE
VARIOUS PRIVATE INTERESTS INVOLVED, REORGANIZATION WAS EVIDENTLY
REGARDED AS THE MOST FEASIBLE SOLUTION WHENEVER THE CORPORATION HAD
BECOME 'INSOLVENT OR UNABLE TO MEET ITS DEBTS AS THEY MATURE.'"  294
U.S.,AT 671 - 672.     /45/  H. REP. 25 - 29; S. REP. 6 - 14.     MR.
JUSTICE STEWART DISSENTS FROM THE OPINION AND JUDGMENT OF THE COURT,
SUBSTANTIALLY FOR THE REASONS SET OUT IN PART II OF THE DISSENTING
OPINION OF MR. JUSTICE DOUGLAS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THESE CASES HAVE CREATED, AS DID THE PENN-CENTRAL MERGER CASES, /1/
THAT "HYDRAULIC PRESSURE" WHICH, MR. JUSTICE HOLMES ONCE SAID, "MAKES
WHAT PREVIOUSLY WAS CLEAR SEEM DOUBTFUL, AND BEFORE WHICH EVEN WELL
SETTLED PRINCIPLES OF LAW WILL BEND."  /2/ 

IF THE RULE OF LAW UNDER A MORAL ORDER IS THE MEASURE OF OUR
RESPONSIBILITY, AS I HAVE ALWAYS ASSUMED, WE CAN ONLY HOLD THAT THE
RAIL ACT OF JANUARY 2, 1974, 87 STAT. 985, 45 U.S.C. 701 ET SEQ. (1970
ED.,SUPP.  III), UNDER TAKES TO SANCTION A FRAUDULENT CONVEYANCE, AS
THOSE WORDS WERE USED IN 13 ELIZ., /3/  AND IN OUR BANKRUPTCY ACT.  I
HAVE BEEN RELUCTANT SO TO HOLD, IMPLICATING AS IT DOES OUR LEGISLATIVE
BRANCH IN A LAWLESS MANEUVER OF GIGANTIC PROPORTIONS.  BUT, BALDLY PUT,
THE PRESENT LAW IS A TOUR DE FORCE TO THAT END. 

ARTICLE I, 10, OF THE CONSTITUTION BARS THE STATES FROM PASSING A
LAW "IMPAIRING THE OBLIGATIONS OF CONTRACTS."  THOUGH THE FEDERAL
GOVERNMENT IS NOT SO ENJOINED, IT IS RESTRAINED BY THE FIFTH AMENDMENT
WHICH PROVIDES THAT NO PERSON CAN BE DEPRIVED OF "PROPERTY" WITHOUT
"DUE PROCESS OF LAW."  I ASSUME IT IS CONCEDED THAT CONGRESS, APART
FROM THE BANKRUPTCY POWER IN ART. I, 8, MAY NOT IMPAIR THE OBLIGATION
OF CONTRACTS WITHOUT VIOLATING THE DUE PROCESS CLAUSE.  /4/  BUT "(THE
BANKRUPTCY POWER, LIKE THE OTHER GREAT SUBSTANTIVE POWERS OF CONGRESS,
IS SUBJECT TO THE FIFTH AMENDMENT," AS MR. JUSTICE BRANDEIS, WRITING
FOR THE COURT IN LOUISVILLE BANK V. RADFORD, 295 U.S. 555, 589 (1935),
HELD. 

THIS DOES NOT MEAN THAT SO FAR AS RAIL CARRIERS ARE CONCERNED THE
CREDITORS CAN EXACT THEIR POUND OF FLESH, DISMEMBERING OR LIQUIDATING
THE DEBTOR.  THE PUBLIC INTEREST MAY NOT BE SUBVERTED IN THAT MANNER. 
AS THE COURT SAID IN CONTINENTAL ILLINOIS NAT. BANK & TRUST CO. V.
CHICAGO, R.I. & P.R. CO., 294 U.S. 648, 671 (1935), A CASE INVOLVING A
RAIL REORGANIZATION UNDER 77 OF THE BANKRUPTCY ACT, 11 U.S.C. 205: 

"A RAILWAY IS A UNIT; IT CAN NOT BE DIVIDED UP AND DISPOSED OF
PIECEMEAL LIKE A STOCK OF GOODS.  IT MUST BE SOLD, IF SOLD AT ALL, AS A
UNIT AND AS A GOING CONCERN.  ITS ACTIVITIES CAN NOT BE HALTED BECAUSE
ITS CONTINUOUS, UNINTERRUPTED OPERATION IS NECESSARY IN THE PUBLIC
INTEREST.  . . ." 

CONGRESS MADE SUCH FINDINGS IN THESE CASES IN 101(A) OF THE ACT, 45
U.S.C. 701(A) (1970 ED.,SUPP.  III).  HENCE THE CONGRESSIONAL OBJECTIVE
IN THE RAIL ACT OF PRESERVING THE ASSETS OF THESE SIX RAILROADS /5/  AS
PART OF A CONTINUING ENTERPRISE IN THE FORM OF A NEW CORPORATION (FOR
CONVENIENCE CALLED CONRAIL /6/  ) IS WELL WITHIN THE BANKRUPTCY
CLAUSE.  THE QUESTION REMAINS, HOWEVER, WHETHER BY THE MEANS IT HAS
CHOSEN CONGRESS HAS TRANSGRESSED CONSTITUTIONAL BOUNDARIES. 

        I 

THE PROPERTY IS "TAKEN FOR PUBLIC USE" WITHIN THE MEANING OF THE FIFTH
AMENDMENT.  FIRST IS THE MANDATE OF CONGRESS.  THE RAIL ACT PROVIDES
FOR AN OBLIGATORY TRANSFER OF THE ASSETS OF THESE COMPANIES TO
CONRAIL.  THE CREDITORS, THE TRUSTEES, THE STOCKHOLDERS, THE
REORGANIZATION JUDGE HAVE NO OTHER OPTION.  THE RECORD MAKES ABUNDANTLY
CLEAR WHAT ALL THE PARTIES CONCEDE, THAT CONRAIL, THOUGH DUBBED "A FOR
PROFIT CORPORATION" BY 301(B) OF THE ACT, 45 U.S.C. 741(B) (1970
ED.,SUPP.  III), SHOWS NO PROSPECT OF BEING AN ENTERPRISE OPERATING ON
A PROFITABLE BASIS.  /7/  PENN CENTRAL LOSSES BETWEEN JUNE 21, 1970,
AND DECEMBER 31, 1973, WERE $851 MILLION, AND THE REORGANIZATION COURT,
/8/  WHOSE JUDGMENT WE ARE NOT REVIEWING, FOUND THAT REORGANIZATION ON
AN INCOME BASIS WAS NOT POSSIBLE.  THE VALUES THAT RIDE ON TODAY'S
DECISIONS ARE THEREFORE NOT BASED ON THE PROSPECT OF FUTURE PROFITABLE
OPERATIONS.  /9/  THE ONLY CONSIDERATION IN THE FRAMEWORK OF THE ACT
WHICH PROVIDES "JUST COMPENSATION" FOR THE TAKING IS IN THE FORM OF
"SECURITIES" OF CONRAIL, 206(D)(1), 45 U.S.C. 716(D)(1) (1970
ED.,SUPP.  III).  IF THOSE "SECURITIES" ARE COMMON STOCK, THEY WILL
HAVE VALUE ONLY INSOFAR AS CONRAIL WILL BE A VIABLE ENTITY WHICH
GENERATES INCOME IN EXCESS OF COSTS AND FIXED CHARGES.  IF THE TRUSTEES
UNDER 77 OF THE BANKRUPTCY ACT, 11 U.S.C. 205, CANNOT MAKE ENDS MEET,
THERE IS NO REASON TO EXPECT THAT CONRAIL CAN.  CONRAIL, TO BE SURE, IS
MADE ELIGIBLE TO RECEIVE OBLIGATIONS OF THE UNITED STATES RAILWAY
ASSOCIATION (USRA), AN INCORPORATED NONPROFIT ASSOCIATION CREATED BY
THE ACT TO ISSUE OBLIGATIONS NOT EXCEEDING $1,500,000,000, WHICH ARE
GUARANTEED BY THE SECRETARY OF THE TREASURY, 210, 45 U.S.C. 720 (1970
ED.,SUPP.  III).  BUT OF THIS ONE BILLION AND A HALF NOT MORE THAN ONE
BILLION CAN BE ISSUED TO CONRAIL; OF THE ONE BILLION "NOT LESS THAN
$500,000,000 SHALL BE AVAILABLE SOLELY FOR THE REHABILIATION AND
MODERNIZATION" OF THE RAIL PROPERTIES, 210(B).  HENCE $500 MILLION
MIGHT BE APPORTIONED UNDER A PLAN TO CREDITORS.  BUT IF THE SPECIAL
COURT DETERMINES UNDER 303(C), 45 U.S.C. 743(C), (1970 ED.,SUPP.  III),
THAT THE VALUE OF THE SECURITIES GIVEN CREDITORS IN EXCHANGE FOR THE
PROPERTY PLEDGED UNDER PRIOR LAW FOR PAYMENT OF THEIR CLAIMS IS LESS
THAN THE FAIR VALUE OF THE PROPERTIES CONVEYED, THE SPECIAL COURT CAN
UNDER 303(C)(2) DO ONLY THREE THINGS: 

1.  REALLOCATE THE SECURITIES ISSUED; 

2.  REQUIRE CONRAIL TO ISSUE ADDITIONAL SECURITIES; 

3.  ENTER A DEFICIENCY JUDGMENT AGAINST CONRAIL. 

THE COMMON STOCK OF CONRAIL IS PLAINLY ONLY TOKEN PAYMENT.  ISSUANCE
OF NEW AND DIFFERENT SECURITIES BY CONRAIL WOULD HAVE TO HAVE INTEREST
OR DIVIDEND RIGHTS TO BE MARKETABLE AND THAT WOULD BRING BACK INTO PLAY
SOME OF THE FORCES THAT PLAGUE THE PRESENT TRUSTEES UNDER 77.  ANY
SECURITIES ISSUED BY CONRAIL MUST "MINIMIZE ANY ACTUAL OR POTENTIAL
DEBT BURDEN" OF CONRAIL, 206(I), 45 U.S.C. 716(I) (1970 ED.,SUPP. 
III).  MOREOVER, 301(D) OF THE RAIL ACT PROVIDES THAT SO LONG AS MORE
THAN HALF THE DEBT OF CONRAIL IS GUARANTEED BY THE GOVERNMENT, A
MAJORITY OF THE 15 DIRECTORS ARE DESIGNATED FROM OUTSIDE--THE SECRETARY
OF TRANSPORTATION, THE CHAIRMAN AND THE PRESIDENT OF THE USRA, AND FIVE
OTHERS NAMED BY THE PRESIDENT WITH THE CONSENT OF THE SENATE.  ONE
CANNOT READ THE RAIL ACT AND BELIEVE THAT CONGRESS THOUGHT THAT FEDERAL
MONEY GOING INTO CONRAIL COULD BE MADE SUBORDINATE TO ANY DEBT CREATED
BY CONRAIL.  A CONTRARY ASSUMPTION WOULD MAKE THE WATCH-DOG PURPOSE OF
301(D) QUITE SUPERFLUOUS.  YET, UNLESS CONRAIL'S NEW DEBT WERE
SERVICED, IT COULD NOT BE MARKETED AND EVEN IF IT WERE, IT COULD ADD NO
ELEMENT OF VALUE TO THE COMPENSATION RECEIVED BY THE CREDITORS OF THESE
RAILROADS UNDER A REORGANIZATION PLAN.  THE UPSHOT IS THAT COMPENSATION
FOR PROPERTIES ACQUIRED BY CONRAIL WOULD BE MOSTLY PAID FOR IN CONRAIL
STOCK WITH A SPRINKLING OF THE BONDS OF THE ASSOCIATION ISSUED TO
CONRAIL, ASSUMING THAT THEY WERE NOT EXPENDED IN THE OPERATIONS OF
CONRAIL BETWEEN THE TIME IT STARTED ITS OPERATION AND THE DATE OF THE
FINAL PLAN OF REORGANIZATION. 

THE VALUE OF THE PROPERTIES TO BE TRANSFERRED HAS NOT YET BEEN
DETERMINED.  WE HELD IN THE NEW HAVEN INCLUSION CASES, 399 U.S. 392,
489 (1970), WHERE THE NEW HAVEN ROAD WAS BEING SHUT DOWN AND ITS ASSETS
SOLD, THAT JUST COMPENSATION WAS TO BE MEASURED BY THE "HIGHEST AND
BEST VALUE" OF THE ASSETS SOLD.  IN THAT CASE THAT VALUE WAS
LIQUIDATION VALUE.  IN LIGHT OF THE FINDINGS OF THE REORGANIZATION
COURTS IN THE PRESENT CASES, WE CANNOT SAY THAT THE $500 MILLION OF
FEDERALLY GUARANTEED BONDS COMES ANYWHERE NEAR ANY REASONABLY ASSURED
VALUE.  /10/  VALUE OF ANY SUBSTANTIAL AMOUNT CANNOT BE ATTRIBUTED TO
THE COMMON STOCK OF CONRAIL, BECAUSE MOST OF THE PROBLEMS OF THE
EXISTING ROADS WILL BE INHERITED BY CONRAIL AND ITS PROSPECTS OF
GENERATING INCOME IN EXCESS OF COSTS AND FIXED CHARGES ARE, IF NOT NIL,
REMOTE.  IT WOULD BE IRONY TO CALL ENTRY OF A DEFICIENCY JUDGMENT
AGAINST CONRAIL ADEQUATE TO MAKE UP ANY DEFICIENCY.  FOR THAT JUDGMENT
WOULD ONLY EAT AWAY AT ANY VALUE WHICH THE COMMON STOCK OF CONRAIL
HAD. 

THE VICIOUS CHARACTER OF THESE LEGISLATIVE DECISIONS IS EMPHASIZED
BY THE CRAM-DOWN PROVISION OF THE RAIL ACT.  IN 77 PROCEEDINGS THERE IS
A CRAM-DOWN PROVISION TO PREVENT ONE CLASS FROM A HOLDUP OF A FAIR AND
EQUITABLE PLAN.  SECTION 77, HOWEVER, ALLOWS A CRAM-DOWN ONLY IF THE
COURT FIRST FINDS THE PLAN FAIR AND EQUITABLE AND AFTER THE SECURITY
HOLDERS HAVE HAD THEIR HEARING.  UNDER THE RAIL ACT THE ASSETS ARE
FIRST TRANSFERRED TO CONRAIL EVEN BEFORE THE SPECIAL COURT HAS MADE ITS
"FAIR AND EQUITABLE" FINDING.  MOREOVER, THE SECURITY HOLDERS NEVER
HAVE A VOTE ON THE PLAN. 

CONGRESS HAS LOWERED ALL THE PROCEDURAL BARRIERS AND FOISTED ON
THESE RAIL CARRIERS A CONVEYANCE OF THEIR ASSETS WHICH, IF DONE BY
PRIVATE PARTIES IN CONTROL OF A BANKRUPT ESTATE, WOULD BE A FRAUDULENT
CONVEYANCE.  HERE IT IS ACHIEVED BY CONGRESS'  PURPORTING TO ACT IN THE
"PUBLIC INTEREST."  THAT IS TAKING FOR A PUBLIC PURPOSE; BUT BY FIFTH
AMENDMENT STANDARDS IT IS A TAKING OF PROPERTY WITHOUT ASSURANCE OF
JUST COMPENSATION. 

        II 

THE COURT RELIES, AS DO ALL PARTIES WHO SEEK TO SUSTAIN THE STATUTE,
ON THE ASSUMED AVAILABILITY OF A SUIT IN THE COURT OF CLAIMS UNDER THE
TUCKER ACT, 28 U.S.C. 1491, TO RECOVER ANY SHORTFALL BETWEEN FAIR
LIQUIDATION VALUE AND THE COMPENSATION THE BANKRUPT ROADS RECEIVE UNDER
THE RAIL ACT.  THE SOLICITOR GENERAL, WHILE INITIALLY ARGUING THAT THE
JUDGMENT BELOW COULD BE REVERSED WITHOUT REACHING THE TUCKER ACT
QUESTION, NOW PITCHES HIS ARGUMENT IN SUPPORT OF THE STATUTE CHIEFLY
UPON THE AVAILABILITY OF A TUCKER ACT SUIT. 

THE TUCKER ACT CONFERS JURISDICTION ON THE COURT OF CLAIMS 

"TO RENDER JUDGMENT UPON ANY CLAIM AGAINST THE UNITED STATES FOUNDED
EITHER UPON THE CONSTITUTION, OR ANY ACT OF CONGRESS, OR ANY REGULATION
OF AN EXECUTIVE DEPARTMENT, OR UPON ANY EXPRESS OR IMPLIED CONTRACT
WITH THE UNITED STATES, OR FOR LIQUIDATED OR UNLIQUIDATED DAMAGES IN
CASES NOT SOUNDING IN TORT."  THE RAIL ACT NEITHER EXPRESSLY PERMITS
NOR EXPRESSLY EXCLUDES A SUIT UNDER 1491.  USRA SAYS THAT "(ONE
SEARCHES THE RAIL ACT IN VAIN FOR A SENTENCE SUCH AS 'THE COURT OF
CLAIMS SHALL HAVE NO JURISDICTION OVER ANY ACTION ALLEGING THAT THE
PROPERTY OF ANY PERSON HAS BEEN TAKEN PURSUANT TO THIS ACT WITHOU JUST
COMPENSATION.'"  BUT THIS OBSERVATION IS ONLY THE BEGINNING OF
ANALYSIS.  IT IS NOT ENOUGH MERELY TO NOTE THAT THE RAIL ACT CARVES OUT
NO EXCEPTION TO 1491 IN EXPRESS WORDS.  "STATUTORY INTERPRETATION
REQUIRES MORE THAN CONCENTRATION UPON ISOLATED WORDS; RATHER,
CONSIDERATION MUST BE GIVEN TO THE TOTAL CORPUS OF PERTINENT LAW AND
THE POLICIES THAT INSPIRED OSTENSIBLY INCONSISTENT PROVISIONS."  BOYS'
MARKETS, INC. V. RETAIL CLERKS, 398 U.S. 235, 250 (1970).  THIS PRECEPT
REQUIRES US TO INQUIRE WHETHER PROVISIONS THAT ARE NOT MUTUALLY
EXCLUSIVE BY THEIR TERMS ARE SO DIVERGENT IN APPROACH THAT THEY CANNOT
CO-EXIST IN A PARTICULAR SETTING.  CONGRESS MAY PROVIDE A MECHANISM FOR
DEALING WITH A PARTICULAR PROBLEM THAT BY ITS STRUCTURE AND PURPOSE IS
INCONSISTENT WITH A TRADITIONAL AVENUE OF RELIEF APPLICABLE TO A
BROADER CLASS OF CASES.  UNDER THESE CIRCUMSTANCES, CONGRESS MAY HAVE
SUPPLANTED THE TRADITIONAL REMEDY, ALBEIT BY IMPLICATION.  IN MY VIEW,
THIS IS PRECISELY WHAT CONGRESS HAS DONE IN THE RAIL ACT. 

THE ACT PROVIDES A STRICT TIMETABLE FOR BRINGING CONRAIL INTO
OPERATION.  USRA IS EXPECTED TO PRESENT THE FINAL SYSTEM PLAN TO
CONGRESS WITHIN 570 DAYS OF THE ENACTMENT OF THE RAIL ACT.  /11/  THE
PLAN IS DEEMED APPROVED UNLESS CONGRESS SPECIFICALLY DISAPPROVES WITHIN
A SPECIFIED PERIOD.  208(B).  ONCE THE PLAN IS APPROVED, USRA MUST
CERTIFY IT TO THE THREE-JUDGE SPECIAL COURT WITHIN 90 DAYS, 209(C). 
WITHIN 10 DAYS AFTER CERTIFICATION, CONRAIL MUST DEPOSIT ITS STOCK AND
SECURITIES WITH THE SPECIAL COURT, 303(A), AND THE COURT MUST DIRECT
THE CONVEYANCE OF PROPERTIES TO CONRAIL PURSUANT TO THE PLAN WITHIN 10
DAYS THEREAFTER, 303(B). 

CONGRESS PLAINLY SOUGHT EXPEDITION IN THE PROCESS OF CREATING
CONRAIL.  THIS IS APPARENTLY THE REASON FOR DEFERRING UNTIL AFTER THE
TRANSFER OF THE PROPERTIES THE QUESTION OF VALUATION AND DISTRIBUTION
OF STOCK TO THE CONTRIBUTING RAILROADS.  /12/  THE POLICY OF EXPEDITION
CARRIES OVER INTO THE PROVISIONS FOR JUDICIAL PARTICIPATION IN THIS
PROCESS.  APPEALS FROM DECISIONS OF THE REORGANIZATION DISTRICT COURTS
CONCERNING THE INCLUSION OF THE DEBTOR ROADS IN THE PROVISIONS OF THE
RAIL ACT LIE EXCLUSIVELY TO THE SPECIAL COURT; ITS DECISION IN THESE
APPEALS MUST BE MADE WITHIN 80 DAYS, 207(B), 45 U.S.C. 717(B) (1970
ED.,SUPP.  III).  ONCE THE FINAL SYSTEM PLAN IS APPROVED BY CONGRESS,
209(B) OF THE ACT, 45 U.S.C. 719(B) (1970 ED.,SUPP.  III), PROVIDES FOR
CONSOLIDATION IN THE SPECIAL COURT OF "ALL JUDICIAL PROCEEDINGS WITH
RESPECT TO THE FINAL SYSTEM PLAN."  THE DECISION OF THE SPECIAL COURT
REGARDING THE DISTRIBUTION OF CONRAIL STOCK AND SECURITIES PURSUANT TO
303(C) IS APPEALABLE DIRECTLY TO THIS COURT.  WE ARE DIRECTED TO GIVE
THE APPEAL "THE HIGHEST PRIORITY" AND EVEN TO DISMISS IT WITHIN SEVEN
DAYS IF WE CONCLUDE THAT ITS PENDENCY "WOULD NOT BE IN THE INTEREST OF
AN EXPEDITIOUS CONCLUSION OF THE PROCEEDINGS."  303(D).     A SUIT IN
THE COURT OF CLAIMS WOULD BE QUITE AN ODD APPENDAGE TO THE STREAMLINED
JUDICIAL PROCEDURES JUST DESCRIBED.  THE LANGUAGE OF 209(B) VESTING IN
THE SPECIAL COURT "ALL JUDICIAL PROCEEDINGS WITH RESPECT TO THE FINAL
SYSTEM PLAN"  IMMEDIATELY RAISES DOUBT THAT A TUCKER ACT REMEDY IS
COMPATIBLE WITH THE ACT.  /13/  THE DOUBT IS AMPLIFIED WHEN ONE LOOKS
AT THE ENTIRE SCHEME OF JUDICIAL PARTICIPATION.  I DO NOT THINK THAT
CONGRESS, IN SETTING UP A SPECIAL COURT, CONSOLIDATING PROCEEDINGS,
LIMITING APPEALS, AND DEMANDING EXPEDITIOUS DECISIONS, INTENDED AT THE
SAME TIME TO PERMIT YET ANOTHER ROUND OF LITIGATION ON THE COMPENSATION
QUESTION TO BEGIN IN THE COURT OF CLAIMS AFTER ALL THE PROCEDURES
MANDATED BY THE RAIL ACT HAD BEEN EXHAUSTED. 

DESPITE THE OBVIOUS FRUSTRATION OF THE POLICY OF EXPEDITION, THE
INFERENCE THAT A TUCKER ACT REMEDY IS AVAILABLE MIGHT STILL BE
JUSTIFIED WERE IT NOT FOR THE SPECIAL FEATURES OF THE COMPENSATION
ARRANGEMENT THAT LIMIT THE INFUSION OF FEDERAL FUNDS.  AS WILL BE SEEN,
THESE FEATURES WERE IMPORTANT TO CONGRESS, AND THEY ARE CIRCUMVENTED IF
A SUIT IN THE COURT OF CLAIMS IS ALLOWED. 

THE SPECIAL COURT, AFTER IT HAS DIRECTED THE TRANSFER TO CONRAIL OF
"ALL RIGHT, TITLE, AND INTEREST" IN THE PROPERTIES OF CONTRIBUTING
ROADS DESIGNATED IN THE FINAL SYSTEM PLAN, 303(B), MUST DETERMINE
WHETHER THE TRANSFERS OF PROPERTY FROM THE BANKRUPT ROADS ARE "FAIR AND
EQUITABLE TO THE ESTATE."  BUT THE SPECIAL COURT HAS ONLY LIMITED TOOLS
FOR RECTIFYING ANY UNFAIRNESS OR INEQUITY IT FINDS, AND THE LIMITATIONS
ON ITS POWERS QUITE CLEARLY INDICATE CONGRESSIONAL INTENT TO LIMIT THE
COMMITTMENT OF FEDERAL FUNDS.  THE PREFERRED FORM OF COMPENSATION TO
THE DEBTOR ROADS IS STOCK OF CONRAIL.  303(C)(2)(A).  IF THE STOCK IS
INSUFFICIENT, THE SPECIAL COURT MAY NEXT ORDER DISTRIBUTION OF
GOVERNMENT-GUARANTEED OBLIGATIONS OF CONRAIL, 303(C)(2)(B), BUT THESE
ARE LIMITED IN FACE VALUE TO $500 MILLION, /14/ ABSENT AN AUTHORIZATION
BY JOINT RESOLUTION OF CONGRESS TO EXCEED THE LIMITATION.  IF ANY
SHORTFALL REMAINS AFTER DISTRIBUTION OF STOCK AND GOVERNMENT-GUARANTEED
OBLIGATIONS, THE SPECIAL COURT IS DIRECTED TO ENTER A DEFICIENCY
JUDGMENT AGAINST CONRAIL, 303(C)(2)(C).  THE JUDGMENT IS AGAINST THE
CORPORATION AND NOT THE UNITED STATES, WITH THE APPARENT PURPOSE OF
PROECTING THE TREASURY FROM A LIABILITY OF UNANTICIPATED MAGNITUDE.  AS
REPRESENTATIVE ADAMS, ONE OF THE PRINCIPAL ARCHITECTS OF THE RAIL ACT
IN THE HOUSE, EXPLAINED WHEN SPECIFIC ASSUR CE ABOUT THE FEDERAL
EXPOSURE WERE SOUGHT EARLY IN DEBATE ON THE BILL: 

"MR. ADAMS.  THERE IS A SPECIFIC LIMITATIO IN THE FINAL BILL

  WHICH SAYS NO MORE THAN $200 MILLION (LATER RAISED TO $500

  MILLION) OF GOVERNMENT LOAN GUARANTEES CAN BE USED FOR

  ACQUISITION IN ANY EVENT, SO IF THE COURT IN 5 TO 10 YEARS SHOULD

  COME IN WITH A HIGHER VALUE, THE ONLY JUDGMENT WOULD BE AGAINST

  THIS NEW CORPORATION THAT IS THERE. 

     "UNDER THE NEW HAVEN CASE THE COURT WAS PLACED IN THIS KIND OF

  POSITION THAT IF IT LOADS UP THAT NEW CORPORATION WITH A DEBT

  STRUCTURE BY REQUIRING IT TO ISSUE ADDITIONAL BONDS, IT LOWERS

  THE VALUE OF THE COMMON STOCK, WHICH IS WHAT IT IS BEING PAID FOR

  IN TERMS OF THESE ASSETS. 

     "MR. RUPPE.  DOES IT NOT HAVE TO DELIVER MORE STOCK?  IT SEEMS

  TO ME FROM READING THE LANGUAGE THAT WE HAVE TO CAUSE THE

  CORPORATION SECURITIES ISSUED IN PAYMENT OF THE PROPERTIES TO

  HAVE A VALUE WHICH IS A FAIR AND EQUITABLE VALUE AS DETERMINED BY

  THE COURT. 

     "MR. ADAMS.  THAT IS CORRECT, BUT THAT IS THIS CORPORATION'S

 AND NOT THE TAXPAYERS OF THE UNITED STATES MONEY."  119

 CONG.REC.  H9742 (NOV. 8, 1973). 

THE POSSIBILITY THAT THERE MIGHT BE A LARGE DEFICIENCY JUDGMENT WAS
NOT UNNOTICED.  SEE ID., AT H9739 (REMARKS OF REP. SKUBITZ) AND H9742
(REMARKS OF REP. SHOUP).  BUT THOSE WHO ADVERTED TO THIS POSSIBILITY
NOTED THAT CONGRESS WOULD HAVE AN OPPORTUNITY TO CONSIDER LATER WHETHER
TO DEAL WITH IT BY RELAXING THE LIMITATIONS ON THE AMOUNT OF GOVERNMENT
LOAN GUARANTEES AVAILABLE TO CONRAIL, BY MEANS OF A JOINT RESOLUTION AS
PROVIDED IN 210(B).  CONGRESS WAS THUS TO HAVE A "SECOND LOOK" AT THE
DEBT STRUCTURE OF CONRAIL AFTER THE SPECIAL COURT VALUATION PROCEEDINGS
HAD CONCLUDED; AT THAT POINT CONGRESS MIGHT IMPROVE THE CORPORATION'S
BALANCE SHEET BY AN ADDITIONAL COMMITMENT FROM PUBLIC FUNDS.  WHAT IS
CLEAR, HOWEVER, IS THAT CONGRESS INTENDED TO PRESERVE A CHOICE WHETHER
TO ALLOW CONRAIL TO BEGIN LIFE WITH A LARGE DEFICIENCY JUDGMENT
UNALLEVIATED BY FURTHER FEDERAL AID.  /15/ 

TO HOLD THAT A TUCKER ACT REMEDY IS AVAILABLE IS, FIRST, TO LEAVE
JUST COMPENSATION OF SECURITY HOLDERS TO WHOLLY SPECULATIVE CHANCES
THAT CONGRESS MIGHT GRANT IT AND, SECOND, TO DEPRIVE CONGRESS OF THAT
OPPORTUNITY TO CHOOSE, SINCE THE BANKRUPT ESTATES WOULD BE PERMITTED TO
OBTAIN A DEFICIENCY JUDGMENT AGAINST THE UNITED STATES AFTER
PROCEEDINGS UNDER THE RAIL ACT HAVE BEEN EXHAUSTED.  ASSURANCE AGAINST
SUCH AN EVENTUALITY WERE GIVEN IN THE FOLLOWING COLLOQUY BETWEEN TWO OF
THE MANAGERS FOR THE HOUSE, DURING DEBATE ON THE CONFERENCE REPORT: 

     "MR. KUYKENDALL.  MR. SPECKER, I WOULD LIKE TO ASK THE

  GENTLEMAN FROM WASHINGTON TO CLARIFY ONE POINT, AND THAT IS THE

  MATTER OF THE DEFICIENCY JUDGMENT.  THERE WAS A LOT OF COLLOQUY

  IN THE ORIGINAL DEBATE WHICH EXPRESSED FEARS THAT THE FEDERAL

  COURT HAS THE KEY TO THE TREASURY. 

     "WILL THE GENTLEMAN GIVE US HIS INTERPRETATION OF THE

  GUARANTEES WE HAVE TO KEEP THAT FROM HAPPENING IN THE COURT

  PROCEEDINGS? 

    "MR. ADAMS.  MR. SPEAKER, THERE IS A DEFINITE LIMITATION ON THE

  TOTAL AMOUNT THAT CAN BE AUTHORIZED UNDER THIS BILL.  ANY AMOUNTS

  THAT GO BEYOND THAT, OR THE SHIFTING OF THE WAY IN WHICH IT IS

  SPENT, IS TO BE APPROVED BY AN ACT OF CONGRESS, TO BE SIGNED BY

  THE PRESIDENT.  IT IS DEFINED AS A JOINT RESOLUTION IN THE BILL,

  AND THE STATEMENT OF THE MANAGERS, AND IT WAS THE CLEAR INTENT OF

  THE MANAGERS THAT ANY AMOUNT OTHER THAN COMMON STOCK WAS TO BE AT

  THE LOWEST POSSIBLE LIMIT TO MEET THE CONSTITUTIONAL GUARANTEES. 

     "MR. KUYKENDALL.  MR. SPEAKER, IS IT NOT TRUE, I WILL ASK THE

  GENTLEMAN FROM WASHINGTON (MR. ADAMS) THAT THE CREDITORS, OF

  COURSE, ARE GIVEN PROTECTION, AND THAT THE BOARD OF DIRECTORS,

  UNDER THE CONTROL OF GOVERNMENT OFFICIALS, IS THE OWNER OF THE

  ENTIRE BLOCK OF STOCK OF 100 MILLION SHARES, WHATEVER IT IS? 

     "MR. ADAMS.  THE GENTLEMAN IS CORRECT.  IT IS CONTROLLED BY
THE

  UNITED STATES, SO LONG AS THE SECRETARY DETERMINES THAT THERE IS

  AN AMOUNT OF OBLIGATION FUNDS WHICH THE UNITED STATES MIGHT, IN

  ANY WAY EVER, HAVE TO HAVE ANYTHING TO DO WITH. 

     "DURING THAT PERIOD OF TIME, IT IS CONTROLLED BY A BOARD OF

  DIRECTORS WHICH CONSISTS OF GOVERNMENT OFFICIALS. 

     "MR. KUYKENDALL.  THERE IS NO WAY THE FEDERAL COURT MAY ASSESS

  THE TAXPAYERS OR THIS CONGRESS ON THE JUDGMENTS OF THE CREDITORS;

  IS THAT CORRECT? 

     "MR. ADAMS.  THE GENTLEMAN IS CORRECT. 

     "MR. KUYKENDALL.  THERE IS NO WAY THEY CAN ASSESS THE CONGRESS
FOR THE MONEY? 

     "MR. ADAMS.  THE GENTLEMAN IS CORRECT."  119 CONG.REC.  H11876
(DEC. 20, 1973). 

NONE OF THESE COMMENTS REFER EXPRESSLY TO THE COURT OF CLAIMS OR TO
THE TUCKER ACT.  BUT THE IMPLICATION OF DEPRIVING THE COURTS OF A "KEY
TO THE FEDERAL TREASURY"  IS POWERFUL, AND THE REFERENCE TO "ASSESSING)
CONGRESS FOR THE MONEY"  EQUALLY SO, SINCE THAT IS IN PRACTICAL TERMS
WHAT THE COURT OF CLAIMS DOES.  FOR ME, THE IMPORT OF THE WORDS IS
CLEAR:  THERE WAS TO BE NO POSSIBILITY THAT AN AGGRIEVED PARTY WAS TO
HAVE RECOURSE AGAINST THE UNITED STATES IN SUCH A WAY AS TO CIRCUMVENT
THE LIMITATIONS ON FEDERAL FUNDS EMBODIED IN THE RAIL ACT.  /16/  ON
ORAL ARGUMENT AS AMICUS CURIAE, REPRESENTATIVE ADAMS STATED THAT
CONGRESS HAD NOT REPEALED THE TUCKER ACT.  THE MAJORITY SEIZES UPON
THIS STATEMENT AS A CONCESSION THAT SUIT MIGHT BE BROUGHT IN THE COURT
OF CLAIMS TO SUPPLEMENT COMPENSATION.  BUT THAT INTERPRETATION OF HIS
WORDS IS OVERBORNE BY THE MANIFESTATIONS OF A CONTRARY CONGRESSIONAL
INTENT REVIEWED ABOVE.  MR. ADAMS' REMARKS, HOWEVER, HAVE A
STRAIGHTFORWARD IMPORT THAT ACCORDS WITH THE COLLOQUY CITED ABOVE AND
WITH THE POSITION TAKEN IN THE BRIEF HE FILED WITH THIS COURT, WHICH
URGED US TO UPHOLD THE RAIL ACT WITHOUT REFERENCE TO A TUCKER ACT
REMEDY.  HIS REMARKS CONFIRM THAT THE TUCKER ACT REMAINS AVAILABLE TO
ENFORCE OBLIGATIONS AGAINST THE UNITED STATES (AND NOT MERELY AGAINST
CONRAIL) CREATED BY THE ACT.  FOR EXAMPLE, SHOULD THE GOVERNMENT FAIL
TO MAKE GOOD ON ITS GUARANTEE OF BONDS ISSUED UNDER 210, HOLDERS
THEREOF COULD OBTAIN RELIEF IN THE COURT OF CLAIMS. 

WE ARE ASKED TO INFER A TUCKER ACT REMEDY BY APPLYING THE CANON THAT
FAVORS INTERPRETATIONS OF STATUTES THAT AVOID SUBSTANTIAL
CONSTITUTIONAL QUESTIONS.  SEE, E.G., UNITED STATES EX REL. ATTORNEY
GENERAL V. DELAWARE & HUDSON CO., 213 U.S. 366, 407 - 408 (1909);
UNITED STATES V. JIN FUEY MOY, 241 U.S. 394 (1916); RICHMOND SCREW
ANCHOR CO. V. UNITED STATES, 275 U.S. 331 (1928); CROWELL V. BENSON,
285 U.S. 22, 62 (1932); SCREWS V. UNITED STATES, 325 U.S. 91, 98
(1945).  AS ORIGINALLY STATED, THE PROPOSITION WAS THAT WHERE A STATUTE
IS "REASONABLY SUSCEPTIBLE OF TWO INTERPRETATIONS,"  THE COURTS WILL
CHOOSE THE ONE THAT STEERS CLEAR OF COLLISION WITH CONSTITUTIONAL
LIMITATIONS.  UNITED STATES EX REL. ATTORNEY GENERAL V. DELAWARE &
HUDSON CO., SUPRA, AT 407; TEXAS V. EASTERN TEXAS R. CO., 258 U.S. 204,
217 (1922).  THE PRINCIPLE IS APPLIED SO AS TO PRESERVE SUBSTANTIALLY
THE LEGISLATIVE PURPOSE, EVEN WHERE A STATUTE MUST BE TAILORED TO AVOID
A QUESTION OF CONSTITUTIONAL INFIRMITY.  SEE SCREWS V. UNITED STATES,
SUPRA; CROWELL V. BENSON, SUPRA; FTC V. AMERICAN TOBACCO CO., 264 U.S.
298 (1924).  IN MORE RECENT APPLICATIONS, HOWEVER, THE COURT HAS ON
OCCASION ABANDONED ANY FIDELITY TO CONGRESSIONAL INTENT IN ORDER TO
AVOID A CONSTITUTIONAL QUESTION.  SEE UNITED STATES V. RUMELY, 345 U.S.
41 (1953); UNITED STATES V. CIO, 335 U.S. 106, 130 (1948) (RUTLEDGE,
J., CONCURRING).  IN THOSE CASES, I BELIEVE, THE COURT ENGAGED IN A
JUDICIAL REWRITING OF THE RELEVANT CONGRESSIONAL ACTS, AND I CONCURRED
IN THE RESULT ONLY AFTER REACHING THE CONSTITUTIONAL QUESTIONS THE
COURT AVOIDED.  TODAY'S DECISION, HOWEVER, GOES WELL BEYOND WHAT WAS
DONE IN RUMELEY AND CIO.  IN THOSE CASES, AS IN MOST THAT HAVE APPLIED
THE CANON OF CONSTRUCTION, THE COURT HAS NARROWED THE CONGRESSIONAL
REGULATORY SCHEME IN ORDER TO AVOID CONFRONTING THE POSSIBILITY OF
OVERREACHING.  SEE UNITED STATES V. DELAWARE & HUDSON CO., SUPRA;
UNITED STATES V. JIN FUEY MOY, SUPRA; TEXAS V. EASTERN TEXAS R. CO.,
SUPRA; FTC V. AMERICAN TOBACCO CO., SUPRA; BLODGETT V. HOLDEN, 275 U.S.
142, 148 (1927) (HOLMES, J., CONCURRING); MISSOURI PACIFIC R. CO. V.
BOONE, 270 U.S. 466 (1926).  TODAY, HOWEVER, THE COURT EXPANDS THE
OPPORTUNITIES FOR CORRECTING UNFAIRNESS IN THE CONGRESSIONAL PROGRAM,
FOISTING UPON CONGRESS A DEVICE IT NEVER CHOSE AND INDEED THOUGHT IT
HAD REJECTED.  TODAY'S HOLDING THUS REPRESENTS A SHEER TOUR DE FORCE. 
CF. UNITED STATES V. SEEGER, 380 U.S. 163, 188 (1965) (DOUGLAS, J.,
CONCURRING).  THIS JUDICIAL LEGISLATION TRANSGRESSES THE BOUNDS OF OUR
RESPONSIBILITY TO AVOID UNNECESSARY CONSTITUTIONAL QUESTIONS.  WHAT MR.
JUSTICE CARDOZO SAID IN MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373
(1933), BEARS REPEATING: 

"'A STATUTE MUST BE CONSTRUED, IF FAIRLY POSSIBLE, SO AS TO AVOID
NOT ONLY THE CONCLUSION THAT IT IS UNCONSTITUTIONAL, BUT ALSO GRAVE
DOUBTS UPON THAT SCORE.'  (CITATION OMITTED.)  BUT AVOIDANCE OF A
DIFFICULTY WILL NOT BE PRESSED TO THE POINT OF DISINGENUOUS EVASION. 
HERE THE INTENTION OF THE CONGRESS IS REVEALED TOO DISTINCTLY TO PERMIT
US TO IGNORE IT. . . . THE PROBLEM MUST BE FACED AND ANSWERED."  ID.,
AT 379.  SEE ALSO APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 515
(1964); UNITED STATES V. CIO, SUPRA, AT 129 - 130 (RUTLEDGE, J.,
CONCURRING). 

THE DRAFTERS OF THE RAIL ACT WROTE AGAINST A BACKGROUND OF
REORGANIZATION LAW, IN WHICH THE TUCKER ACT HAS NEVER BEFORE BEEN
REGARDED AS A DEVICE FOR ESCAPING CONSTITUTIONAL QUESTIONS.  CHALLENGES
TO BANKRUPTCY LEGISLATION AS PERMITTING UNCONSTITUTIONAL DEPRIVATIONS
OF PROPERTY HAVE OCCURRED BEFORE.  OUR CASES UNTIL TODAY HAVE FACED
THESE CHALLENGES WITHOUT ADVERTING TO ANY TUCKER ACT REMEDY.  SEE
CONTINENTAL ILLINOIS NAT. BANK & TRUST CO. V. CHICAGO, R.I. & P.R. CO.,
294 U.S. 648 (1935); LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295
U.S. 555 (1935); WRIGHT V. VINTON BRANCH, 300 U.S. 440 (1937); ECKER V.
WESTERN PACIFIC R. CO., 318 U.S. 448 (1943).  /17/  IN CONSTRUING THE
RAIL ACT TO EMBRACE A TUCKER ACT REMEDY, THE COURT DISREGARDS THIS
TRADITION, AND IN THIS CASE OPENS UP THE POSSIBILITY WHICH CONGRESS
SOUGHT DILIGENTLY TO AVOID--THE IMPOSITION OF A LARGE FINANCIAL BURDEN
UPON THE TREASURY FOR THE CONRAIL ACQUISITION. 

THE COURT OF CLAIMS IS WITHOUT POWER TO ENFORCE ITS JUDGMENTS. 
WHILE THOSE AMOUNTING TO LESS THAN $100,000 ARE PAID FROM A GENERAL
APPROPRIATION, THE PAYMENT OF JUDGMENTS EXCEEDING THIS SUM REQUIRE
SPECIAL ACTION BY CONGRESS.  ORDINARILY, OF COURSE, CONGRESS PAYS THESE
JUDGMENTS AS A MATTER OF ROUTINE.  SEE GLIDDEN CO. V. ZDANOK, 370 U.S.
530, 570 - 571 (1962).  BUT THIS IS AN EXCEPTIONAL CASE, INVOLVING THE
POSSIBILITY OF JUDGMENTS IN THE BILLIONS OF DOLLARS. 

THE CONSTRUCTION THE COURT GIVES THE RAIL ACT TODAY WILL AMAZE THE
LEGISLATORS WHO DRAFTED AND VOTED FOR THIS STATUTE.  I CANNOT BELIEVE
THAT CONGRESS WOULD HAVE ENACTED THIS LAW HAD IT BEEN TOLD THAT IN THE
END IT MIGHT HAVE TO DIG INTO TAXPAYERS' POCKETS NOT FOR THE ONE
BILLION APPROPRIATED BUT FOR UNKNOWN BILLIONS--PERHAPS 10 OR 12 BILLION
-FOR "JUST COMPENSATION" FOR PROPERTY IT AUTHORIZED TO BE "TAKEN." 
   III 

ARTICLE I, 8, CL. 4, OF THE CONSTITUTION EMPOWERS CONGRESS TO
ESTABLISH "UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES THROUGHOUT THE
UNITED STATES."  THIS COURT HELD MANY YEARS BACK THAT THAT REQUIREMENT
REQUIRED "GEOGRAPHICAL"  UNIFORMITY.  ITS MAIN PURPOSE WAS TO TREAT
CLAIMANTS AGAINST DEBTORS THE SAME IN ONE AREA AS IN ANOTHER.  AS
STATED BY MR. JUSTICE FRANKFURTER, CONCURRING IN VANSTON BONDHOLDERS
PROTECTIVE COMMITTEE V. GREEN, 329 U.S. 156, 172 - 173 (1946):  /18/ 

"THE CONSTITUTIONAL REQUIREMENT OF UNIFORMITY IS A REQUIREMENT OF
GEOGRAPHIC UNIFORMITY.  IT IS WHOLLY SATISFIED WHEN EXISTING
OBLIGATIONS OF A DEBTOR ARE TREATED ALIKE BY THE BANKRUPTCY
ADMINISTRATION THROUGHOUT THE COUNTRY, REGARDLESS OF THE STATE IN WHICH
THE BANKRUPTCY COURT SITS.  SEE HANOVER NATIONAL BANK V. MOYSES, 186
U.S. 181, 190.  TO ESTABLISH UNIFORM LAWS OF BANKRUPTCY DOES NOT MEAN
WIPING OUT THE DIFFERENCES AMONG THE FORTY-EIGHT STATES IN THEIR LAWS
GOVERNING COMMERCIAL TRANSACTIONS.  THE CONSTITUTION DID NOT INTEND
THAT TRANSACTIONS THAT HAVE DIFFERENT LEGAL CONSEQUENCES BECAUSE THEY
TOOK PLACE IN DIFFERENT STATES SHALL COME OUT WITH THE SAME RESULT
BECAUSE THEY PASSED THROUGH A BANKRUPTCY COURT.  IN THE ABSENCE OF
BANKRUPTCY SUCH DIFFERENCES ARE THE FAMILIAR RESULTS OF A FEDERAL
SYSTEM HAVING FORTY-EIGHT DIVERSE CODES OF LOCAL LAW.  THESE
DIFFERENCES INHERENT IN OUR FEDERAL SCHEME THE DAY BEFORE A BANKRUPTCY
ARE NOT WIPED OUT OR TRANSMUTED THE DAY AFTER." 

THE SOLICITOR GENERAL MAKES THE CURIOUS ARGUMENT THAT THE COMMERCE
CLAUSE POWER WHICH SUPPORTS THE CONTINUANCE OF THIS RAIL SYSTEM
REQUIRES NO UNIFORMITY.  BUT IT IS THE BANKRUPTCY POWER THAT GIVES
CONGRESS POWER TO CUT DOWN ON THE OBLIGATION OF CONTRACTS.  RECOURSE TO
THE BANKRUPTCY CLAUSE IS NECESSARY TO SUSTAIN THIS STATUTE, FOR, AS
NOTED BELOW, IT AUTHORIZES SIGNIFICANT IMPAIRMENT BEYOND THAT PERMITTED
UNDER 77. 

THE ACT APPLIES NOT ACROSS THE NATION BUT ONLY IN THE NORTHEAST
ED.,SUPP.  III), INDEED SO DEFINES "REGION."  IT IS TO THAT "REGION"
THAT USRA IS CONFINED BY 202(B), 45 U.S.C. 712(B) (1970 ED.,SUPP. 
III), IN THE PERFORMANCE OF ITS VARIOUS DUTIES.  REPORTING FEATURES OF
THE ACT REACH ONLY RAILROADS IN THIS "REGION."  203(A), 45 U.S.C.
713(A) (1970 ED.,SUPP.  III).  THE SECRETARY OF TRANSPORTATION IS
LIKEWISE SO CONFINED.  204(A), 45 U.S.C. 714(A) (1970 ED.,SUPP.  III). 
SO IS THE NEW OFFICE--RAIL SERVICES PLANNING OFFICE--IN THE INTERSTATE
COMMERCE COMMISSION.  205(A), (D), 45 U.S.C. 715(A), (D) (1970
ED.,SUPP.  III).  THE "FINAL SYSTEM PLAN" COVERS ONLY RAIL SERVICE IN
THIS "REGION."  206(A), (C), (D), 45 U.S.C. 716(A), (C), (D) (1970
ED.,SUPP.  III).  IN SHORT, THE ACT WOULD HAVE TO BE AMENDED TO MAKE
ITS PROCEDURE APPLICABLE TO RAIL CARRIERS NOT IN THE NORTHEASTERN
REGION.  THE SOLICITOR GENERAL IS THEREFORE QUITE WRONG WHEN HE SAYS
THAT THE RAIL ACT APPLIES WITH THE SAME FORCE AND EFFECT WHEREVER
RAILROAD REORGANIZATION ARE FOUND. 

THE SPECIAL COURT IS A BANKRUPTCY COURT, FOR CONGRESS HAS GIVEN IT
"SUCH POWERS"  AS "A REORGANIZATION COURT" HAS.  209(B), 45 U.S.C.
719(B) (1970 ED.,SUPP.  III).  AND, "A RAILROAD IN REORGANIZATION" AS
DEFINED IN 102(12) INCLUDES THOSE IN 77 OF THE BANKRUPTCY ACT.  THAT
MEANS THAT A RAILROAD IN 77 PROCEEDINGS BUT NOT LOCATED IN THE
NORTHEASTERN SECTION HAS MORE BENIGN TREATMENT THAN THE SIX RAIL
CARRIERS BEFORE US IN THESE CASES.  THE IMPORTANCE OF THAT DIFFERENCE
IS FELT AMONG THE RANKS OF SECURITY HOLDERS:  SECURITY HOLDERS OF RAIL
CARRIERS WHO NOW OR IN THE FUTURE ARE IN A 77 REORGANIZATION IN THE
MIDDLE WEST, SOUTH, OR WEST WILL RECEIVE MORE CONSIDERATE TREATMENT
THAN PLAINTIFFS BELOW IN THESE CASES.  THE DIFFERENCES ARE NOT MINOR
BUT EXCEEDINGLY SUBSTANTIAL. 

(1) UNDER 77, AS WE HELD IN THE NEW HAVEN INCLUSION CASES, SUPRA, A
PLAN WAS APPROVED WHEREBY THE RAIL ASSETS WERE DISPOSED OF WITH A VIEW
TO REORGANIZING THE REMAINING ENTERPRISE AS AN INVESTMENT COMPANY. 
UNDER THE RAIL ACT, 207(B) MANDATES A DISMISSAL IF "THIS CHAPTER DOES
NOT PROVIDE A PROCESS WHICH WOULD BE FAIR AND EQUITABLE TO THE ESTATE
OF THE RAILROAD."  45 U.S.C. 717(B) (1970 ED.,SUPP.  III).  AS THE
REORGANIZATION COURT HELD, THE PLAN APPROVED IN THE NEW HAVEN INCLUSION
CASES WOULD NOT BE PERMISSIBLE UNDER THE RAIL ACT, AS THE RAIL ACT
NOWHERE ENVISAGES A BIFURCATED REORGANIZATION, ONE FOR NONRAIL ASSETS
AND ANOTHER FOR RAIL ASSETS.  THE ONLY CHOICE IS BETWEEN AN OVERALL
REORGANIZATION ON THE ONE HAND AND A DISMISSAL WHEREUPON ALL THE
DIVERSITIES OF THE OLD EQUITY RECEIVERSHIP CAN BE EXPLORED.  THUS,
SECURITY HOLDERS OF COMPANIES REORGANIZED UNDER THE ACT ARE DEPRIVED OF
ADVANTAGES WHICH SECURITY HOLDERS OF OTHER RAIL CARRIERS IN 77
PROCEEDINGS ENJOY. 

(2) IN A SALE OR CONVEYANCE OF ASSETS PURSUANT TO A PLAN UNDER 77,
ANY LIEN ON THOSE ASSETS IS TRANSFERRED TO THE PROCEEDS.  77(O).  BUT
BY REASON OF 303(B)(2) OF THE RAIL ACT THE TRANSFER IS "FREE AND CLEAR
OF ANY LIENS OR ENCUMBRANCES." 

(3) UNDER 77(D) BEFORE A PLAN CAN BE CONSUMMATED, THE JUDGE (AS WELL
AS THE INTERSTATE COMMERCE COMMISSION) MUST FIND IT TO BE "FAIR AND
EQUITABLE."  UNDER THE RAIL ACT, 303(C), THAT FINDING IS MADE ONLY EX
POST FACTO.  THUS THE PRESSURES ARE ON TO CONSUMMATE THE PLAN WITH NO
ALTERNATIVES OPEN TO THE SPECIAL COURT EXCEPT DISMISSAL.  THE CHOICE
UNDER 77, WHICH THE NEW HAVEN INCLUSION CASES ILLUSTRATE, IS BARRED;
AND THE SECURITY HOLDERS HERE LACK THE BENEFIT OF THE EXPERTISE OF THE
INTERSTATE COMMERCE COMMISSION TO WHICH THE COURTS GIVE VERY GREAT
DEFERENCE.  SEE ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448, 472 -
475 (1943).  THE EX POST FACTO FINDING ON THE "FAIR AND EQUITABLE"
PREREQUISITE OF THIS PLAN ROBS THESE SECURITY HOLDERS OF PROTECTIVE
MEASURES THAT SECURITY HOLDERS ENJOY IN REORGANIZATIONS OF RAIL
CARRIERS IN OTHER GEOGRAPHICAL AREAS. 

(4) WHILE THE RAIL SERVICES PLANNING OFFICE IS DIRECTED TO HOLD
PUBLIC HEARINGS ON THE "PRELIMINARY SYSTEM PLAN," 207(A)(2), IT IS USRA
THAT PREPARES THE FINAL SYSTEM PLAN, 207(C), (D) AND SUBMITS IT TO THE
CONGRESS.  208.  THAT SUBMISSION TO CONGRESS IS, HOWEVER, PERFUNCTORY
IN THE SENSE THAT THE PLAN CLEARS THAT HURDLE UNLESS CONGRESS
DISAPPROVES IT.  UNDER 77(E) THE SECURITY HOLDERS ("ALL PARTIES IN
INTEREST") HAVE A RIGHT TO BE HEARD BEFORE THE COURT APPROVES A PLAN. 
UNDER THE RAIL ACT NO LIKE HEARING IS GRANTED.  THE DENIAL OF THE RIGHT
TO BE HEARD MAY AT TIMES AMOUNT TO A DENIAL OF DUE PROCESS.  I INTIMATE
NO OPINION ON WHETHER SUCH A RIGHT COULD BE CONSTITUTIONALLY ELIMINATED
FROM ALL 77 RAIL REORGANIZATIONS.  /19/  BUT WHERE THE SECURITY HOLDERS
OF SOME RAIL CARRIERS UNDER 77 ARE GIVEN THAT RIGHT AND THOSE WHO ARE
CLAIMANTS AGAINST PLAINTIFFS BELOW ARE DENIED IT, THAT PROVISION OF
THIS RAIL ACT OBVIOUSLY LACKS THAT "UNIFORMITY" WHICH THE CONSTITUTION
MANDATES. 

WHILE WE HAVE HERETOFORE RECOGNIZED THAT LOCAL VARIATIONS BY REASON
OF STATE LAW GOVERNING THE RIGHTS OF CREDITORS AND DEBTORS MAY BE
HONORED IN BANKRUPTCY WITHOUT VIOLATING THE UNIFORMITY CLAUSE, /20/  WE
HAVE NEVER SANCTIONED A HARSHER BANKRUPTCY PROCEDURE FOR THE SAME CLASS
OF DEBTORS IN ONE REGION THAN IS APPLIED TO THE SAME CLASS IN A
DIFFERENT REGION.  THE BANKRUPTCY COURT MAY, OF COURSE, BE EMPOWERED TO
MAKE ITS ORDERS TURN ON THE AVAILABILITY OF CREDIT WHICH MAY BE
EXISTENT IN ONE AREA BUT NOT IN ANOTHER.  /21/  BUT DOWN TO THIS DAY WE
HAVE NEVER DREAMED OF ALLOWING DEBTORS IN THE SAME CLASS AND THEIR
CREDITORS TO BE TREATED MORE LENIENTLY IN ONE REGION THAN IN ANOTHER. 
/22/ 

MY CONCLUSION THAT THIS RAIL ACT DOES NOT HAVE THAT "UNIFORMITY"
REQUIRED BY ART.I, 8, CL. 4, OF THE CONSTITUTION DOES NOT MEAN THAT IT
IS UNCONSTITUTIONAL IN ITS ENTIRETY.  IT DOES MEAN, HOWEVER, THAT THE
FOUR WAYS IN WHICH "UNIFORMITY" IS LACKING MUST BE REMEDIED BEFORE THE
PRESENT GROUP OF SECURITY HOLDERS CAN BE MADE TO SUFFER BOTH FROM
207(B) OF THE ACT AND FROM THE CRAM-DOWN PROVISIONS IN 303, INCLUDING
THE ABSENCE OF ANY MEANINGFUL RIGHT OF THE SECURITY HOLDERS TO BE HEARD
ON THE FAIRNESS OF A LAW. 

WE ARE URGED TO BOW TO THE PRESSURE OF EVENTS AND EXPEDITE IN THE
PUBLIC INTEREST THE REORGANIZATION OF THESE SIX RAIL CARRIERS.  AN
EMERGENCY OFTEN GIVES CONGRESS THE OCCASION TO ACT.  BUT I KNOW OF NO
EMERGENCY THAT PERMITS IT TO DISREGARD THE JUST COMPENSATION CLAUSE OF
THE FIFTH AMENDMENT OR THE UNIFORMITY REQUIREMENT OF THE BANKRUPTCY
CLAUSE OF THE CONSTITUTION. 

I FEAR THAT THE "HYDRAULIC PRESSURE" GENERATED BY THIS CASE WILL
HAVE A SERIOUS IMPACT ON A HISTORIC AREA OF THE LAW, JEALOUSLY
PROTECTED OVER THE CENTURIES BY COURTS OF EQUITY IN THE INTERESTS OF
JUSTICE. 

/1/  SEE BALTIMORE & O. R. CO. V. UNITED STATES, 386 U.S. 372
(1967); PENN-CENTRAL MERGER CASES, 389 U.S. 486(1968); NEW HAVEN
INCLUSION CASES, 399 U.S. 392 (1970).  IN BALTIMORE & O. R. CO. V.
UNITED STATES, SUPRA, I SUMMARIZE IN MY DISSENT, 386 U.S.,AT 452 - 459,
SOME OF THE FINANCIAL CHICANERY BEHIND THE CREATION OF THE "NEW
FRANKENSTEINS" WITH WHICH WE NOW DEAL, ID., AT 455. 

/2/  NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197, 401
(1904) (DISSENTING OPINION). 

/3/  13 ELIZ., C.5 (1570); G. GLENN, FRAUDULENT CONVEYANCE &
PREFERENCES (REV. ED. 1940). 

/4/  THE GOLD CLAUSE CASES ARE ON A DIFFERENT FOOTING, FOR AS MR.
CHIEF JUSTICE HUGHES WROTE IN NORMAN V. BALTIMORE & O. R. CO., 294 U.S.
240 (1935), THE POWER OF CONGRESS TO REGULATE THE CURRENCY AND
ESTABLISH THE MONETARY SYSTEM WAS INVOLVED. 

/5/  PENN CENTRAL TRANSPORTATION CO. AND ITS SUBSIDIARIES; LEHIGH
VALLEY RAILROAD CO.; CENTRAL RAILROAD CO. OF NEW JERSEY; LEHIGH &
HUDSON RIVER RAILWAY CO.; READING CO.; ANN ARBOR RAILWAY CO. 

/6/  CONSOLIDATED RAIL CORP. CREATED BY 301 OF THE ACT, 45 U.S.C.
741 (1970 ED.,SUPP.  III). 

/7/  THE REORGANIZATION COURT FOUND THAT PENN-CENTRAL (THE DEBTOR)
WAS "NOT REORGANIZABLE ON AN INCOME BASIS WITHIN A REASONABLE TIME";
AND THAT RULING HAS NOT BEEN APPEALED.  IN RE PENN-CENTRAL TRANS.  CO.,
382 F.SUPP.  831, 842 (ED PA. 1974). 

/8/  SECTION 209(B), 45 U.S.C. 719(B) (1970 ED.,SUPP.  III),
DESIGNATES A SPECIAL COURT OF THREE FEDERAL JUDGES WHICH, INTER ALIA,
IS TO PASS ON THE QUESTION WHETHER THE PLAN IS "FAIR AND EQUITABLE." 
303(C)(2), 45 U.S.C. 743(C)(2) (1970 ED.,SUPP.  III).  A PRELIMINARY
DECISION BY THE SPECIAL COURT UHICH IN CERTAIN IMPORTANT ASPECTS
CONFLICTS WITH THAT OF THE REORGANIZATION COURT WAS RENDERED SEPTEMBER
30, 1974.  IN RE PENN CENTRAL TRANS.  CO., 384 F.SUPP.  895. 

/9/  A STUDY COMMISSIONED BY THE PENN CENTRAL TRUSTEES, ON FILE WITH
THE ICC, ESTIMATES FOR PENN CENTRAL ASSETS AS OF DECEMBER 31, 1970, A
"COMMAND RAILROAD USE"  VALUE OF $3,532,110,000.  PCTC PHYSICAL ASSET
VALUATION STUDY (APR. 1973, REVISED MAY 30, 1973), ICC FIN.  DOCKET NO.
26241 (JOINT DOCUMENTARY SUBMISSION NO. 40). 

/10/  SEE N. 9, SUPRA.  IN THE CASE OF PENN CENTRAL ALONE, THE
REORGANIZATION COURT SAID THAT "THERE IS EVERY REASON TO SUPPORT THAT
THE INCLUDED PROPERTIES WOULD BE WORTH CONSIDERABLY MORE THAN $500
MILLION."  382 F.SUPP.  856, 864 (ED PA. 1974) (FULLAM, J.). 

JUDGE FULLAM'S CONCURRING OPINION IN THE DISTRICT COURT NOTED: 

"AS A MATTER OF SIMPLE MAXIMIZATION OF VALUES, IF THERE IS NO 'GOING
CONCERN' VALUE IN THE USUAL SENSE, THERE IS NO JUSTIFICATION FOR
CONTINUING A REORGANIZATION PROCEEDING, UNLESS EITHER OR BOTH OF THE
FOLLOWING CONDITIONS ARE ESTABLISHED:  (1) A REASONABLE PROSPECT THAT,
BECAUSE OF STREAMLINING, CONSOLIDATIONS, AND OTHER CHANGES IN
CIRCUMSTANCES, EARNING POWER AND PROFITABILITY CAN BE RESTORED; OR (2)
A REASONABLE PROSPECT THAT THE PUBLIC NEED FOR PRESERVING THE DEBTOR'S
RAILROAD IS SUCH THAT IT WILL BE APPROPRIATED FOR PUBLIC USE, AND THAT
THE VALUES INHERENT IN ITS ASSEMBLAGE AS AN OPERATING RAILROAD WILL BE
RECOGNIZED AND PAID FOR.  CF. PORT AUTHORITY TRANS.  HUDSON CORP. V.
HUDSON RAPID TUBES, 20 N.Y.2D 457, 231 N.E. 734, CERT. DENIED 390 U.S.
1002 (1967)."  383 F.SUPP.  510, 537 (ED PA. 1974).  (FOOTNOTE
OMITTED.) 

/11/  SECTION 207(C), 45 U.S.C. 717(C) (1970 ED.,SUPP.  III),
REQUIRED THE EXECUTIVE COMMITTEE OF USRA TO PRESENT THE FINAL SYSTEM
PLAN TO USRA'S BOARD OF DIRECTORS FOR APPROVAL WITHIN 420 DAYS AFTER
ENACTMENT OF THE ACT, LATER EXTENDED TO 540 DAYS BY PUB. L. 93 - 488. 
WITHIN 30 DAYS AFTER PRESENTATION BY THE EXECUTIVE COMMITTEE, THE BOARD
SHALL "APPROVE A FINAL SYSTEM PLAN WHICH MEETS ALL OF THE REQUIREMENTS
OF SECTION 716 (PRESCRIBING CONTENTS OF THE PLAN AND THE GENERAL
GOALS)."  THE PLAN IS THEN SUBMITTED TO CONGRESS, 208(A), 45 U.S.C.
718(A) (1970 ED.,SUPP III). 

/12/  SEE H. R. REP. NO. 93 - 620, PP. 54 - 55 (1973) (HEREINAFTER
CITED AS HOUSE REPORT). 

/13/  THIS LANGUAGE ORIGINATED IN THE SENATE BILL.  THE HOUSE BILL
HAD PROVIDED FOR CONSOLIDATION IN THE SPECIAL COURT OF "ALL PROCEEDINGS
OF ANY KING WHICH ARISE OR MAY ARISE CONCERNING THE FINAL SYSTEM PLAN
OR IMPLEMENTATION THEREOF."  (501(A)).  THE HOUSE REPORT EXPLAINS THAT
"TITLE V . . . GUARANTEES THE CREDITORS THEIR DAY IN COURT AND
PRESERVES THEIR CONSTITUTIONAL RIGHT TO A JUDICIAL DETERMINATION OF
JUST COMPENSATION FOR THEIR PROPERTY."  HOUSE REPORT 47.  THE SENATE
LANGUAGE WAS INCORPORATED IN THE FINAL BILL, AND APPARENTLY NO
SIGNIFICANCE WAS ATTACHED TO THE DISPARITY BETWEEN THE TWO VERSIONS. 
SEE H. R. CONF. REP. NO. 93 - 744, PP. 56 - 59 (1973). 

/14/  UNDER 210(B), 45 U.S.C. 720(B) (1970 ED.,SUPP.  III), USRA IS
AUTHORIZED TO ISSUE GOVERNMENT-GUARANTEED OBLIGATIONS NOT EXCEEDING
$1.5 BILLION.  ONLY $1 BILLION, HOWEVER, MAY BE ISSUED TO CONRAIL, AND
OF THIS AMOUNT $500 MILLION MUST BE MADE AVAILABLE SOLELY FOR
REHABILITATION AND MODERNIZATION OF PROPERTIES ACQUIRED FROM
CONTRIBUTING ROADS.  THIS LEAVES $500 MILLION OF OBLIGATIONS AVAILABLE
TO THE SPECIAL COURT FOR DISTRIBUTION TO THE ESTATES UNDER
303(C)(2)(B).     /15/  WERE CONGRESS SO TO CHOOSE, THE CREDITORS OF
THE BANKRUPT ROADS, ARMED WITH A LARGE DEFICIENCY JUDGMENT, MIGHT CAUSE
A LEVY TO BE MADE UPON CONRAIL'S ASSETS.  SINCE THE VALUE OF CONRAIL
STOCK HELD WOULD PRESUMABLY REFLECT THE VALUE OF THE ASSETS, A LEVY
WOULD NOT GIVE THE ESTATES ANY ADDITIONAL VALUE BUT WOULD MERELY CHANGE
ITS FORM.  LIQUIDATION WOULD, AT MOST, TERMINATE FURTHER EROSION OF
ASSET VALUE DUE TO CONTINUED UNPROFITABLE OPERATIONS. 

AN AMICUS BRIEF SUBMITTED BY REPRESENTATIVE ADAMS FOR HIMSELF AND 35
OTHER REPRESENTATIVES SUGGEST THAT LIQUIDATION WOULD ALLOW THE
CREDITORS TO GET BACK WHAT THEY RELINQUISHED, INVOLUNTARILY, TO CONRAIL
(P. 7).  BUT, AS THE SPECIAL COURT NOTED, THIS POSITION IGNORES THE
PROBABLE EROSION OF ASSET VALUE DURING THE PENDENCY OF VALUATION
PROCEEDINGS, THE POSSIBILITY OF NEW SENIOR DEBT, AND THE DIFFICULTY OF
UNSCRAMBLING THE ASSETS.  IN RE PENN CENTRAL TRANS.  CO., 384
F.SUPP.,AT 933. 

APPEARING AS AMICUS CURIAE AT ORAL ARGUMENT.  REPREENTATIVE ADAMS
MADE STATEMENTS THAT THE MAJORITY NOW READS AS INDICATING A CONCLUSION
THAT A TUCKER ACT SUIT WOULD BE AVAILABLE TO REMEDY AN UNCOMPENSATED
"EROSION TAKING."  ANTE, AT 132 - 133.  YET THIS POSITION IS CONTRARY
TO THAT TAKEN IN THE BRIEF MR. ADAMS SUBMITTED, WHICH URGES US TO
DECIDE THE CASE WITHOUT REACHING THE TUCKER ACT QUESTION AND
SPECIFICALLY CITES THE COLLOQUY PRINTED, INFRA, AT 174 - 175.  THE
COURT PROPERLY NOTES THAT THESE POST-ENACTMENT EXPRESSIONS SHOULD BE
TREATED WITH CAUTION, A WARNING THAT APPLIES AS MUCH TO THE "RELATIVELY
SPONTANEOUS RESPONSES OF COUNSEL TO EQUALLY SPONTANEOUS QUESTIONING
FROM THE COURT," MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163, 170
(1972), AS TO THE MORE CONSIDERED STATEMENTS THAT APPEAR IN WRITTEN
SUBMISSIONS.  VIEWED IN THEIR ENTIRETY, THE POST-ENACTMENT EXPRESSIONS
ARE AMBIGUOUS AND ADD LITTLE TO THE STATUTE AND LEGISLATIVE HISTORY. 
MOREOVER, MR. ADAMS' REMARKS BEAR AN INTERPRETATION FULLY CONSISTENT
WITH THE NONAVAILABILITY OF THE TUCKER ACT.  SEE INFRA, AT 177. 

/16/  THE HOUSE REPORT IN ITS COST ESTIMATE SPECIFICALLY NOTES THOSE
COST ELEMENTS AS TO WHICH THE CEILING IS NOT FIXED, SUCH AS THE OPEN
ENDED AUTHORIZATION FOR A FEDERAL CONTRIBUTION TO OPERATING SUBSIDIES
PAID FOR LOCAL RAIL SERVICE.  THIS AUTHORIZATION, ORIGINALLY CONTAINED
IN 701 OF THE HOUSE BILL, APPEARS IN 402 OF THE RAIL ACT, 45 U.S.C.
762, SUBJECT TO AN ANNUAL LIMITATION OF $90 MILLION.  SIGNIFICANTLY,
THERE IS NO MENTION OF A POSSIBLE COURT OF CLAIMS JUDGMENT OF UNCERTAIN
BUT POTENTIALLY ASTRONOMICAL PROPORTIONS.  SEE HOUSE REPORT 30.  THE
SENATE REPORT IS SIMILAR.  IN A SECTION ENTITLED "MINIMIZING TAXPAYER
EXPENSE" IT EXPLAINS: 

"ALTHOUGH THE AMOUNTS OF MONEY REQUIRED TO IMPLEMENT THE
RATIONALIZATION AND RESTRUCTING OF THE BANKRUPT RAILROADS IN THE
NORTHEAST AUTHORIZED BY THIS LEGISLATION MAY SEEM SUBSTANTIAL TO THE
UNINITIATED, EVERY EFFORT HAS BEEN MADE TO DESIGN A BILL WHICH
MINIMIZES THE DIRECT COST TO THE U.S. TAXPAYER.  INDEED, THE VERY
PROCESS BY WHICH THE BILL WOULD CREATE A NEW HEALTHY RAILROAD OUT OF
THE BANKRUPT ONES AROSE FROM THIS STRONG DESIRE TO LIMIT THE USE OF
FEDERAL MONEY.  THE BILL IS THUS WRITTEN TO PERMIT THE TRANSFER OF THE
REQUIRED RAIL PROPERTIES OF THE BANKRUPT ESTATES IN EXCHANGE FOR
SECURITIES OF THE NEW CORPORATION VIA A REORGANIZATION PLAN UNDER THE
UMBRELLA OF A SECTI PROCEEDING UNDER THE BANKRUPTCY ACT.  IN ADDITION,
THE BILL CALLS FOR THE USE OF FEDERAL LOAN GUARANTEES RATHER THAN
DIRECT GRANTS WHEREVER POSSIBLE.  THIS PROCEDURE ALLOWS FOR THE
NECESSARY FUNDS TO COME FROM THE PRIVATE SECTOR IN EXCHANGE FOR LOANS
WHICH ARE TO BE REPAID BY THE NEW CORPORATION OR OTHER RECIPIENTS.  THE
USE OF LOAN GUARANTEES IN THIS INSTANCE WAS FELT TO BE PARTICULARLY
APPROPRIATE IN THIS INSTANCE WAS FELT TO BE PARTICULARLY APPROPRIATE
SINCE THEY WILL SUPPORT A NEW RAILROAD WITH EXCELLENT EARNINGS
PROSPECTS."  S. REP. NO. 93 - 601, P. 18 (1973). 

IN THE SECTION ON COST ESTIMATES IT IS NOTED:  "THE OBLIGATIONAL
AUTHORITY OF THE ASSOCIATION LIMITED TO $150,000,000 TO FINANCE THE
SECRETARY'S AGREEMENTS WITH RAILROADS IN REORGANIZATION FOR THE
ACQUISITION, MAINTENANCE AND IMPROVEMENT OF RAIL FACILITIES PRIOR TO
THE COMPLETION OF THE FINAL SYSTEM PLAN.  UNDER THE BILL ANY ADDITIONAL
OBLIGATION AUTHORITY NECESSARY FOR THE IMPLEMENTATION OF THE FINAL
SYSTEM PLAN MUST BE DESIGNATED IN THE FINAL SYSTEM PLAN AND
AFFIRMATIVELY APPROVED BY A JOINT RESOLUTION OF CONGRESS."  ID., AT 125
- 126.  HAD CONGRESS INTENDED TO ALLOW A TUCKER ACT REMEDY IN ADDITION
TO ALL THAT WAS CREATED BY THE RAIL ACT, ALL OF THE FOREGOING
ASSURANCES WOULD HAVE BEEN WORTHLESS. 

/17/  LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555
(1935), HELD THAT THE FIRST FRAZIER-LEMKE ACT, WHICH PROVIDED SPECIAL
RELIEF TO FARM MORTGAGORS IN BANKRUPTCY, WAS AN UNCONSTITUTIONAL TAKING
OF THE MORTGAGEE'S SECURITY.  HAD THE THEORY OFFERED HERE BY THE
GOVERNMENT BEEN APPLIED THERE, THE COURT COULD HAVE AVOIDED THE ISSUE
BY INFERRING A TUCKER ACT REMEDY.  THE POSSIBILITY OF SUCH A COURSE
COULD NOT HAVE ESCAPED THE COURT'S ATTENTION; HURLEY V. KINCAID, 285
U.S. 95 (1932), HAD BEEN DECIDED JUST THREE YEARS EARLIER, AND MR.
JUSTICE BRANDEIS, AUTHOR OF THE RADFORD OPINION, HAD WRITTEN LYNCH V.
UNITED STATES, 292 U.S. 571 (1934), ONLY THE PREVIOUS TERM. 

/18/  THE REQUIREMENT OF "UNIFORMITY" DOES NOT PRECLUDE LOCAL
VARIATIONS THAT MAKE RIGHTS OF CREDITORS OR DEBTORS DEPEND ON
PECULIARITIES OF STATE LAW RELATING, E.G., TO DOWER EXEMPTIONS,
VALIDITY OF MORTGAGES, AND THE RIGHT TO ENFORCE THROUGH BANKRUPTCY
STATE REMEDIES AGAINST FRAUDULENT CONVEYANCES.  STELLWAGEN V. CLUM, 245
U.S. 605, 613 - 615 (1918); WRIGHT V. VINTON BRANCH, 300 U.S. 440, 463
N. 7 (1937). 

/19/  UNDER 77(E) A TWO-THIRDS VOTE OF EACH CLASS OF SECURITY
HOLDERS AFFECTED BY THE PLAN IS NORMALLY REQUIRED.  THE BANKRUPTCY
COURT, HOWEVER, MAY NEVERTHELESS APPROVE THE PLAN EVEN THOUGH THE TWO
THIRDS VOTE IS LACKING IF IT FINDS THE PLAN IS FAIR AND EQUITABLE AND
THE REJECTION OF IT BY A CLASS OF SECURITY HOLDERS "IS NOT REASONABLY
JUSTIFIED IN THE LIGHT OF THE RESPECTIVE RIGHTS AND INTERESTS OF THOSE
REJECTING IT AND ALL THE RELEVANT FACTS."  FOR AN INSTANCE WHERE WE
SUSTAINED A BANKRUPTCY COURT IN APPROVING A PLAN THAT A CLASS OF
SECURITY HOLDERS HAD REJECTED, SEE RFC V. DENVER & R.G.W.R. CO., 328
U.S. 495, 531 - 535 (1946). 

/20/  N. 18, SUPRA. 

/21/  WRIGHT V. VINTON BRANCH, 300 U.S. 440 (1937). 

/22/  CONTINENTAL ILLINOIS NAT. BANK & TRUST CO. V. CHICAGO, R.I. &
P.R. CO., 294 U.S. 648 (1935), CITED BY THE MAJORITY, ANTE, AT 158 -
159, INVOLVED NO QUESTION OF GEOGRAPHICAL NONUNIFORMITY; 77, UPHELD IN
THAT CASE, ADOPTED SPECIAL PROCEDURES FOR ALL RAILROAD BANKRUPTCIES. 
SIMILARLY INAPPOSITE ARE THE HEAD MONEY CASES, 112 U.S. 580 (1884),
WHICH INVOLVED THE UNIFORMITY REQUIREMENT OF ART. I, 8, CL. 1. 
ALTHOUGH THE HEAD TAX CLASSIFIED PERSONS BY CITIZENSHIP AND MODE OF
ENTRY, IT APPLIED "ALIKE IN EVERY PORT OF THE UNITED STATES WHERE SUCH
PASSENGERS CAN BE LANDED."  ID., AT 594. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR THE UNITED STATES ET AL.
WITH HIM ON THE BRIEFS WERE ASSISTANT ATTORNEY GENERAL HILLS, KEITH A.
JONES, AND JEROME E. SHARFMAN.  LLOYD N. CUTLER ARGUED THE CAUSE FOR
THE UNITED STATES RAILWAY ASSN.  WITH HIM ON THE BRIEFS WERE WILLIAM R.
PERLIK, WILLIAM T. LAKE, AND JORDAN JAY HILLMAN.  CHARLES A. HORSKY
ARGUED THE CAUSE FOR BLANCHETTE ET AL., TRUSTEES OF THE PROPERTY OF
PENN CENTRAL TRANSPORTATION CO. WITH HIM ON THE BRIEFS WERE BRICE M.
CLAGETT AND PAUL R. DUKE.  LOUIS A. CRACO ARGUED THE CAUSE FOR
CONNECTICUT GENERAL INSURANCE CORP. ET AL. WITH HIM ON THE BRIEFS WERE
FREDERIC L. BALLARD, WALTER H. BROWN, JR., AND THOMAS L. BRYAN, DAVID
BERGER ARGUED THE CAUSE AND FILED BRIEFS FOR PENN CENTRAL CO. JOSEPH
AUERBACH ARGUED THE CAUSE FOR SMITH, TRUSTEE OF THE PROPERTY OF NEW
YORK, NEW HAVEN AND HARTFORD RAILROAD CO.  WITH HIM ON THE BRIEFS WERE
JAMES WM. MOORE, MORRIS RAKER, AND CHARLES W. MORSE, JR. BROCKMAN ADAMS
ARGUED THE CAUSE AND FILED A BRIEF FOR CERTAIN UNITED STATES
REPRESENTATIVES AS AMICI CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE WERE FILED BY ISRAEL PACKEL, ATTORNEY
GENERAL, AND GORDAN P. MACDOUGALL, SPECIAL ASSISTANT ATTORNEY GENERAL,
FOR THE COMMONWEALTH OF PENNSYLVANIA; BY DAVID F. MAXWELL FOR TRUSTEES
OF READING CO.; AND BY JOHN F. DONELAN FOR THE NATIONAL INDUSTRIAL
TRAFFIC LEAGUE. 
..END :









GONZALEZ V. EMPLOYEES CREDIT UNION, 419 U.S. 90 


       GONZALEZ V. AUTOMATIC EMPLOYEES CREDIT UNION ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS

NO. 73 - 858.  ARGUED OCTOBER 21, 1974--DECIDED DECEMBER 10,

           1974*  363 F.SUPP.  143, VACATED AND REMANDED. 

*(REPORTER'S NOTE:  THIS CASE WAS DOCKETED UNDER THE CAPTION SHOWN. 
HOWEVER, THE MERCANTILE NATIONAL BANK OF CHICAGO IS THE APPELLEE
DIRECTLY INVOLVED IN THE LITIGATION BEFORE THIS COURT AND AUTOMATIC
EMPLOYEES CREDIT UNION IS NO LONGER INVOLVED.) 

           F.SUPP.  143, VACATED AND REMANDED. 


    APPELLANT BROUGHT THIS CLASS ACTION FOR INJUNCTIVE AND

  DECLARATORY RELIEF ATTACKING THE CONSTITUTIONALITY OF ILLINOIS

  AUTOMOBILE REPOSSESSION AND RESALE STATUTORY PROVISIONS AND

  ALLEGING THAT HE HAD PURCHASED A CAR ON A RETAIL INSTALLMENT

  CONTRACT LATER ASSIGNED TO APPELLEE BANK WHICH (ASSERTEDLY

  WITHOUT ANY DEFAULT BY APPELLANT OR NOTICE TO HIM) REPOSSESSED

  THE CAR AND RESOLD IT TO A THIRD PARTY TO WHOM TITLE WAS

  TRANSFERRED.  A THREE-JUDGE DISTRICT COURT HELD THAT APPELLANT

  LACKED STANDINNG TO ATTACK THE CONSTITUTIONALITY OF THE STATUTORY

  SCHEME SINCE THE REPOSSESSION AND SALE OF THE CAR HAD ALREADY

  TAKEN PLACE AND THAT SINCE APPELLANT WAS ALLEGEDLY NOT IN DEFAULT

  THE COMPLAINT WAS DIRECTED, NOT AT THE CONSTITUTIONALITY OF THE

  STATUTORY PROVISIONS, BUT ONLY AT THE BANK'S ABUSE OF THOSE

  PROVISIONS.  APPELLANT SOUGHT REVIEW UNDER 28 U.S.C. 1253, WHICH

  PROVIDES FOR AN APPEAL TO THIS COURT FROM AN ORDER GRANTING OR

  DENYING AN INJUNCTION IN A CIVIL ACTION REQUIRED BY ANY ACT OF

  CONGRESS TO BE HEARD AND DETERMINED BY A THREE-JUDGE DISTRICT

  COURT.  APPELLANT CONTENDS, INTER ALIA, THAT DISMISSAL OF HIS

  COMPLAINT "DENIED" HIM THE INJUNCTIVE RELIEF THAT HE SOUGHT,

  WHEREAS APPELLEE BANK MAINTAINS THAT AN INJUCTION IS NOT "DENIED"

 FOR PURPOSES OF 1253 BY A DISMISSAL BASED ON GROUNDS SHORT OF A

  STATUTE'S CONSTITUTIONAL VALIDITY.  HELD:  WHEN A THREE-JUDGE

  DISTRICT COURT DENIES A PLAINTIFF INJUNCTIVE RELIEF ON GROUNDS

  THAT, IF SOUND, WOULD HAVE JUSTIFIED DISSOLUTION OF THE COURT AS

  TO THAT PLAINTIFF OR A REFUSAL TO CONVENE A THREE-JUDGE COURT TO

  BEGIN WITH, REVIEW OF THE DENIAL IS AVAILABLE IN THE COURT OF

  APPEALS; AND SINCE HERE THE THREE-JUDGE DISTRICT COURT'S DECISION

  THAT THE COMPLAINT WAS NONJUSTICIABLE FOR LACK OF "STANDING" WAS

  A GROUND UPON WHICH THAT COURT COULD HAVE DISSOLVED ITSELF,

  LEAVING THE COMPLAINT'S DISPOSITION TO A SINGLE JUDGE, THE COURT

  OF APPEALS SHOULD DETERMINE THE "STANDING" ISSUE, WHICH THIS

  COURT HAS NO JURISDICTION UNDER 1253 TO CONSIDER.  PP. 93 - 101. 

     STEWART, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL UNDER 28 U.S.C. 1253 FROM AN ORDER OF A THREE-JUDGE
COURT DISMISSING THE APPELLANT'S COMPLAINT FOR LACK OF "STANDING."  /1/
WE DEFERRED CONSIDERATION OF OUR JURISDICTION UNTIL THE HEARING ON THE
MERITS.  415 U.S. 947.  FOR THE REASONS THAT FOLLOW, WE HAVE CONCLUDED
THAT THE DISTRICT COURT'S ORDER IS NOT DIRECTLY APPEALABLE TO THIS
COURT. 

        I 

THE APPELLANT GONZALEZ AND THREE OTHER NAMED PLAINTIFFS BROUGHT A
CLASS ACTION IN THE DISTRICT COURT ATTACKING AS UNCONSTITUTIONAL
VARIOUS PROVISIONS OF THE COMMERICAL CODE AND MOTOR VEHICLE CODE OF
ILLINOIS GOVERNING REPOSSESSION, RETITLING AND RESALE OF AUTOMOBILES
PURCHASED ON AN INSTALLMENT BASIS UNDER SECURITY AGREEMENTS.  /2/  THE
PLAINTIFFS ALLEGED THAT THE STATUTORY SCHEME VIOLATED A DEBTOR
PURCHASER'S RIGHTS--UNDER THE FOURTEENTH, FOURTH, AND FIFTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION--TO NOTICE, HEARING, AND IMPARTIAL
DETERMINATION OF CONTRACTUAL DEFAULT PRIOR TO REPOSSESSION OF THE CAR,
TRANSFER OF TITLE TO THE SECURED PARTY, OR RESALE OF THE CAR BY THE
SECURED PARTY.  THE PLAINTIFFS SOUGHT A DECLARATORY JUDGMENT TO THIS
EFFECT, A PERMANENT INJUNCTION, AND COMPENSATORY AND PUNITIVE DAMAGES
FOR PAST VIOLATIONS OF THEIR ALLEGED CONSTITUTIONAL RIGHTS.  A THREE
JUDGE COURT WAS CONVENED PURSUANT TO 28 U.S.C. 2281.  /3/ 

THE NAMED PLAINTIFFS SOUGHT TO REPRESENT THE CLASS OF ALL DEBTOR
PURCHASERS, UNDER SECURITY AGREEMENTS INVOLVING MOTOR VEHICLES, "WHO
HAVE HAD OR MAY HAVE THEIR AUTOMOBILES OR OTHER MOTOR VEHICLES
REPOSSESSED AND SOLD FOR AN ALLEGED DEFAUL WITHOUT PRIOR NOTICE AND AN
OPPORTUNITY TO BE HEARD AND WHOSE CERTIFICATE OF TITLE HAS BEEN OR WILL
BE TERMINATED AND TRANSFERRED BY THE SECRETARY OF STATE.  THE NAMED
DEFENDANTS WERE THE SECRETARY OF STATE OF ILLINOIS, RESPONSIBLE FOR
TRANSFERRING TITLE UNDER THE CHALLENGED STATUTES, AND FIVE
ORGANIZATIONS OPERATING AS SECURED CREDITORS IN THE MOTOR VEHICLE
FIELD.  THE COMPLAINT ALSO DESIGNATED A DEFENDANT CLASS, CONSISTING OF
ALL SECURED CREDITORS WHO MAY, "UPON THEIR UNILATERAL DETERMINATION OF
DEFAULT BY DEBTOR-OBLIGEES," SEEK TO REPOSSESS, AND TO DISPOSE OF,
MOTOR VEHICLES UNDER THE CHALLENGED STATUTES. 

THE PLEADINGS AND SUPPLEMENTARY DOCUMENTS SHOWED THAT GONZALEZ HAD
PURCHASED A CAR ON A RETAIL INSTALLMENT CONTRACT, WHICH HAD LATER BEEN
ASSIGNED TO THE DEFENDANT-APPELLEE, MERCANTILE NATIONAL BANK OF CHICAGO
(MERCANTILE).  BEFORE GONZALEZ JOINED THIS LAWSUIT, MERCANTILE HAD
REPOSSESSED THE CAR, RESOLD IT TO A THIRD PARTY, AND ARRANGED A TITLE
TRANSFER TO THAT PARTY THROUGH THE OFFICE OF THE SECRETARY OF STATE. 
THE COMPLAINT ALLEGED THAT ALL OF THIS HAD BEEN DONE WITHOUT NOTICE TO
GONZALEZ, AND THAT HE HAD NOT IN FACT BEEN IN DEFAULT UNDER THE
INSTALLMENT CONTRACT.  ON THE BASIS OF THESE FACTS, THE THREE-JUDGE
COURT DISMISSED THE COMPLAINT.  /4/ 

THE COURT HELD THAT GONZALEZ LACKED "STANDING" TO CONTEST THE
CONSTITUTIONALITY OF THE STATUTORY SCHEME.  FIRST, THE COURT OBSERVED
THAT ENJOINING FUTURE ENFORCEMENT OF THE SCHEME WOULD BE A "USELESS
ACT" SO FAR AS GONZALEZ WAS CONCERNED, SINCE THE EVENTS OF WHICH HE
COMPLAINED--THE REPOSSESSION AND RESALE OF HIS CAR--HAD ALREADY TAKEN
PLACE.  /5/  SECONDLY, THE COURT REASONED THAT THE COMPLAINT, BECAUSE
IT ALLEGED THAT GONZALEZ HAD NOT BEEN IN DEFAULT, WAS DIRECTED, NOT AT
THE CONSTITUTIONAL VALIDITY OF THE STATUTORY SCHEME, BUT ONLY AT
MERCANTILE'S ABUSE OF THE SCHEME.  NOTING THAT THE STATUTORY PROVISIONS
AUTHORIZED REPOSSESSION AND TITLE TRANSFER ONLY UPON DEFAULT, AND
PROVIDED FOR INJUNCTIVE RELIEF AND DAMAGES WHERE CREDITORS ACTED IN THE
ABSENCE OF DEFAULT, THE COURT HELD THAT GONZALEZ LACKED STANDING TO
LITIGATE "THE VALIDITY OF THESE STATUTES WHEN PROPERLY APPLIED TO
DEBTORS ACTUALLY IN DEFAULT."  /6/  THE COMPLAINT WAS DIMISSED "SINCE .
. . ALL PLAINTIFFS IN THIS CASE FAIL TO PRESENT A CLAIM WHICH CAN BE
REACHED ON THE MERITS."  /7/

        II 

APPEALING HERE INDIVIDUALLY AND AS A PURPORTED CLASS REPRESENTATIVE,
GONZALEZ SEEKS REVERSAL OF THE DISTRICT COURT'S "STANDING"
DETERMINATION, AND AN ORDER DIRECTING THE REINSTATEMENT OF HIS
COMPLAINT.  OUR APPELLATE JURISDICTION IS CONTROLLED BY 28 U.S.C.
1253: 

     "EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO

  THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE

AND HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY

  CIVIL ACTION, SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS

  TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

GONZALEZ' JURISDICTIONAL ARGUMENT IS VERY SIMPLE:  THE DISMISSAL OF
HIS COMPLAINT DID IN FACT "DENY" HIM THE PERMANENT INJUNCTIVE RELIEF HE
REQUESTED, AND THE CASE WAS ONE "REQUIRED . . . TO BE HEARD AND
DETERMINED" BY THREE JUDGES BECAUSE THE SEVERAL CONDITIONS PRECEDENT TO
CONVENING A THREE-JUDGE COURT UNDER 28 U.S.C. 2281 AND 2284 WERE MET. 
THAT IS, THE CONSTITUTIONAL QUESTION RAISED WAS SUBSTANTIAL; /8/  THE
ACTION SOUGHT TO ENJOIN A STATE OFFICIAL FROM EXECUTING STATUTES OF
STATEWIDE APPLICATION; /9/  AND THE COMPLAINT AT LEAST FORMALLY ALLEGED
A BASIS FOR EQUITABLE RELIEF.  /10/ 

MERCANTILE DENIES THAT ALL OF THESE CONDITIONS WERE MET, BUT PLACES
GREATER EMPHASIS ON AN ENTIRELY DIFFERENT READING OF 1253.  MERCANTILE
ARGUES THAT AN INJUNCTION IS NOT "DENIED" FOR PURPOSES OF 1253. 
MERCANTILE ARGUES BASED UPON AN ADVERSE DETERMINATION ON THE MERITS OF
THE PLAINTIFF'S CONSTITUTIONAL ATTACK ON THE STATE STATUTES.  IN THE
PRESENT CASE, INJUNCTIVE RELIEF WAS DENIED, NOT BECAUSE THE COURT FOUND
THE CHALLENGED STATUTES CONSTITUTIONALLY SOUND, BUT ONLY BECAUSE THE
COURT FOUND THAT GONZALEZ LACKED STANDING TO MAKE THE CHALLENGE. 
MERCANTILE ARGUES THAT A DISMISSAL PREMISED ON GROUNDS SHORT OF THE
CONSTITUTIONAL MERITS SHOULD BE REVIEWED IN THE FIRST INSTANCE BY THE
COURT OF APPEALS, RATHER THAN BY DIRECT APPEAL TO THIS COURT. 

IT IS AN UNDERSTATEMENT TO SAY THAT THIS ARGUMENT IS NOT WHOLLY
SUPPORTED BY PRECEDENT, FOR THE FACT IS THAT THE COURT HAS ON SEVERAL
OCCASIONS ENTERTAINED DIRECT APPEALS FROM THREE-JUDGE-COURT ORDERS
DENYING INJUNCTIONS ON GROUNDS SHORT OF THE MERITS.  /11/ BUT IT IS
ALSO A FACT THAT IN THE AREA OF STATUTORY THREE-JUDGE-COURT LAW THE
DOCTRINE OF STARE DECISIS HAS HISTORICALLY BEEN ACCORDED CONSIDERABLY
LESS THAN ITS USUAL WEIGHT.  THESE PROCEDURAL STATUTES ARE VERY
AWKWARDLY DRAFTED, /12/  AND IN STRUGGLING TO MAKE WORKABLE SENSE OF
THEM, THE COURT HAS NOT INFREQUENTLY BEEN INDUCED TO RETRACE ITS
STEPS.  /13/  WRITING FOR THE COURT ON ONE OF THESE OCCASIONS, MR.
JUSTICE HARLAN NOTED: 

"UNLESS INEXORABLY COMMANDED BY STATUTE, A PROCEDURAL PRINCIPLE OF
THIS IMPORTANCE SHOULD NOT BE KEPT ON THE BOOKS IN THE NAME OF STARE
DECISIS ONCE IT IS PROVED TO BE UNWORKABLE IN PRACTICE; THE MISCHIEVOUS
CONSEQUENCES TO LITIGANTS AND COURTS ALIKE FROM THE PERPETUATION OF AN
UNWORKABLE RULE ARE TOO GREAT."  SWIFE & CO. V. WICKHAM, 382 U.S. 111,
116. 

THE READING GIVEN TO 1253 BY APPELLANT GONZALEZ IS NOT "INEXORABLY
COMMANDED BY STATUTE."  FOR THE STATUTE "AUTHORIZES DIRECT REVIEW BY
THIS COURT . . . AS A MEANS OF ACCELERATING A FINAL DETERMINATION ON
THE MERITS."  SWIFT & CO. V. WICKHAM, SUPRA, AT 119.  IT IS TRUE THAT
DISMISSAL OF A COMPLAINT ON GROUNDS SHORT OF THE MERITS DOES "DENY" THE
INJUNCTION IN A LITERAL SENSE, BUT A LITERALISTIC APPROACH IS FULLY
PERSUASIVE ONLY IF FOLLOWED WITHOUT DEVIATION.  IN FACT, THIS COURT'S
INTERPRETATION OF THE THREE-JUDGE-COURT STATUTES HAS FREQUENTLY
DEVIATED FROM THE PATH OF LITERALISM.  /14/  IF THE OPAQUE TERMS AND
PROLIX SYNTAX OF THESE STATUTES WERE GIVEN THEIR FULL PLAY, THREE-JUDGE
COURTS WOULD BE CONVENED, AND MANDATORY APPEALS WOULD LIE HERE, IN MANY
CIRCUMSTANCES WHERE SUCH EXTRAORDINARY PROCEDURES WOULD SERVE NO
DISCERNIBLE PURPOSE. 

CONGRESS ESTABLISHED THE THREE-JUDGE-COURT APPARATUS FOR ONE REASON:
TO SAVE STATE AND FEDERAL STATUTES FROM IMPROVIDENT DOOM, ON
CONSTITUTIONAL GROUNDS, AT THE HANDS OF A SINGLE FEDERAL DISTRICT
JUDGE.  /15/  BUT SOME OF THE LITERAL WORDS OF THE STATUTORY APPARATUS
BEAR LITTLE OR NO RELATION TO THAT UNDERLYING POLICY, AND IN CONSTRUING
THESE WE HAVE STRESSED THAT THE THREE-JUDGE-COURT PROCEDURE IS NOT "A
MEASURE OF BROAD SOCIAL POLICY TO BE CONSTRUED WITH GREAT LIBERALITY." 
PHILLIPS V. UNITED STATES, 312 U.S. 246, 251.  SEE ALSO KESLER V. DEPT.
OF PUBLIC SAFETY, 369 U.S. 153, 156 - 157; SWIFT & CO. V. WICKHAM, 382
U.S., AT 124; ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544, 561 -
562. 

THE WORDS OF 1253 GOVERNING THIS COURT'S APPELLATE JURISDICTION OVER
ORDERS DENYING INJUNCTIONS FALL WITHIN THIS CANON OF NARROW
CONSTRUCTION.  WHETHER THIS JURISDICTION BE READ BROADLY OR NARROWLY,
THERE WILL BE NO IMPACT ON THE UNDERLYING CONGRESSIONAL POLICY OF
ENSURING THIS COURT'S SWIFT REVIEW OF THREE-JUDGE-COURT ORDERS THAT
GRANT INJUNCTIONS.  FURTHERMORE, ONLY A NARROW CONSTRUCTION IS
CONSONANT WITH THE OVERRIDING POLICY, HISTORICALLY ENCOURAGED BY
CONGRESS, OF MINIMIZING THE MANDATORY DOCKET OF THIS COURT IN THE
INTERESTS OF SOUND JUDICIAL ADMINISTRATION.  /16/ 

MERCANTILE ARGUES THAT 1253 SHOULD BE READ TO LIMIT OUR DIRECT
REVIEW OF THREE-JUDGE-COURT ORDERS DENYING INJUNCTIONS TO THOSE THAT
REST UPON RESOLUTION OF THE CONSTITUTIONAL MERITS OF THE CASE.  THERE
WOULD BE EVIDENT VIRTUES TO THIS RULE.  IT WOULD LEND SYMMETRY TO THE
COURT'S JURISDICTION SINCE, IN REVIEWING ORDERS GRANTING INJUNCTIONS,
THE COURT IS NECESSARILY DEALING WITH A RESOLUTION OF THE MERITS. 
WHILE ISSUES SHORT OF THE MERITS--SUCH AS JUSTICIABILITY, SUBJECT
MATTER JURISDICTION, EQUITABLE JURISDICTION, AND ABSTENTION--ARE OFTEN
OF MORE THAN TRIVIAL CONSEQUENCE, THAT ALONE DOES NOT ARGUE FOR OUR
REVIEWING THEM ON DIRECT APPEAL.  DISCRETIONARY REVIEW IN ANY CASE
WOULD REMAIN AVAILABLE, INFORMED BY THE MEDIATING WISDOM OF A COURT OF
APPEALS.  FURTHERMORE, THE COURTS OF APPEALS MIGHT IN MANY INSTANCES
GIVE MORE DETAILED CONSIDERATION TO THESE ISSUES THAN THIS COURT, WHICH
DISPOSES OF MOST MANDATORY APPEALS IN SUMMARY FASHION.  /17/ 

BUT THE FACTS OF THIS CASE DO NOT REQUIRE US TO EXPLORE THE FULL
SWEEP OF MERCANTILE'S ARGUMENT.  HERE THE THREE-JUDGE COURT DISMISSED
THE COMPLAINT FOR LACK OF "STANDING."  THIS GROUND FOR DECISION, THAT
THE COMPLAINT WAS NONJUSTICIABLE, WAS NOT MERELY SHORT OF THE ULTIMATE
MERITS; IT WAS ALSO, LIKE AN ABSENCE OF STATUTORY SUBJECT-MATTER
JURISDICTION, A GROUND UPON WHICH A SINGLE JUDGE COULD HAVE DECLINED TO
CONVENE A THREE-JUDGE COURT, OR UPON WHICH THE THREE-JUDGE COURT COULD
HAVE DISSOLVED ITSELF, LEAVING FINAL DISPOSITION OF THE COMPLAINT TO A
SINGLE JUDGE.  /18/ 

A THREE-JUDGE COURT IS NOT REQUIRED WHERE THE DISTRICT COURT ITSELF
LACKS JURISDICTION OF THE COMPLAINT OR THE COMPLAINT IS NOT JUSTICIABLE
IN THE FEDERAL COURTS.  SEE EX PARTE PORESKY, 290 U.S. 30, 31.  IT IS
NOW WELL SETTLED THAT REFUSAL TO REQUEST THE CONVENTION OF A THREE
JUDGE COURT, DISSOLUTION OF A THREE-JUDGE COURT, AND DISMISSAL OF A
COMPLAINT BY A SINGLE JUDGE ARE ORDERS REVIEWABLE IN THE COURT OF
APPEALS, NOT HERE.  /19/  IF THE THREE-JUDGE COURT IN THE PRESENT CASE
HAD DISSOLVED ITSELF ON GROUNDS THAT "STANDING" WAS ABSENT, AND HAD
LEFT SUBSEQUENT DISMISSAL OF THE COMPLAINT TO A SINGLE JUDGE, THIS
COURT WOULD THUS CLEARLY HAVE LACKED APPELLATE JURISDICTION OVER BOTH
ORDERS.  THE SAME WOULD HAVE BEEN TRUE IF THE DISSOLUTION AND DISMISSAL
DECISIONS HAD BEEN MADE SIMULTANEOUSLY, WITH THE SINGLE JUDGE MERELY
ADOPTING THE ACTION OF THE THREE-JUDGE COURT.  /20/  THE LOCUS OF
APPELLATE REVIEW SHOULD NOT TURN ON SUCH TECHNICAL DISTINCTIONS. 

WHERE THE THREE-JUDGE COURT PERCEIVES A GROUND JUSTIFYING BOTH
DISSOLUTION AND DISMISSAL, THE CHRONOLOGY OF DECISIONMAKING IS
TYPICALLY A MATTER OF MERE CONVENIENCE OR HAPPENSTANCE.  OUR MANDATORY
DOCKET MUST REST ON A FIRMER FOUNDATION THAN THIS.  WE HOLD, THEREFORE,
THAT WHEN A THREE-JUDGE COURT DENIES A PLAINTIFF INJUNCTIVE RELIEF ON
GROUNDS WHICH, IF SOUND, WOULD HAVE JUSTIFIED DISSOLUTION OF THE COURT
AS TO THAT PLAINTIFF, OR A REFUSAL TO REQUEST THE CONVENTION OF A THREE
JUDGE COURT AB INITIO, REVIEW OF THE DENIAL IS AVAILABLE ONLY IN THE
COURT OF APPEALS. 

IN THE PRESENT CASE, ACCORDINGLY, THE CORRECTNESS OF THE DISTRICT
COURT'S VIEW OF GONZALEZ' STANDING TO SUE IS FOR THE COURT OF APPEALS
TO DETERMINE.  WE INTIMATE NO VIEWS ON THE ISSUE, FOR WE ARE WITHOUT
JURISDICTION TO CONSIDER IT.  /21/  WE SIMPLY VACATE THE ORDER BEFORE
US AND REMAND THE CASE TO THE DISTRICT COURT SO THAT A FRESH ORDER MAY
BE ENTERED AND A TIMELY APPEAL PROSECUTED TO THE COURT OF APPEALS. 
/22/

              IT IS SO ORDERED. 

/1/  MOJICA V. AUTOMATIC EMPLOYEES CREDIT UNION, 363 F.SUPP.  143. 

/2/  ILL. REV. STAT., C. 26, 9 - 503 AND 9 - 504, AND ILL. REV.
STAT., C. 95 1/2, 3 - 114(B), 3 - 116(B), AND 3 - 612. 

/3/ SECTION 2281 PROVIDES: 

AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAING THE ENFORCEMENT,
OPERATION OR EXECUTION OF ANY STATE STATUTE BY RESTRAINING THE ACTION
OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION OF SUCH
STATUTE OR OF AN ORDER MADE BY AN ADMINISTRATIVE BOARD OR COMMISSION
ACTING UNDER STATE STATUTES, SHALL NOT BE GRANTED BY ANY DISTRICT COURT
OR JUDGE THEREOF UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH
STATUTE UNLESS THE APPLICATION THEREFOR IS HEARD AND DETERMINED BY A
DISTRICT COURT OF THREE JUDGES UNDER SECTION 2284 OF THIS TITLE. 
/4/  SINCE ONLY GONZALEZ HAS SOUGHT REVIEW OF THE THREE-JUDGE COURT'S
DISMISSAL OF THE COMPLAINT, WE CONFINE OUR SUMMARY OF THAT COURT'S
ANALYSIS TO THE SPECIFIC FACTS OF HIS CASE.  THE DISTRICT COURT'S
ANALYSIS WAS SIMILAR, HOWEVER, WITH REGARD TO EACH OF THE NAMED
PLAINTIFFS. 

/5/  MOJICA V. AUTOMATIC EMPLOYEES CREDIT UNION, SUPRA, AT 145 -

  146.     /6/  ID., AT 145. 

/7/  ID., AT 146. 

/8/  SEE GOOSBY V. OSSER, 409 U.S. 512. 

/9/  SEE MOODY V. FLOWERS, 387 U.S. 97. 

/10/  SEE IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN, 370 U.S. 713. 

/11/  CASES IN WHICH THE DISTRICT COURT HAD DENIED INJUNCTIVE RELIEF
FOR WANT OF STANDING, OR OF JUSTICIABILITY GENERALLY:  FLORIDA LIME &
AVOCADO GROWERS V. JACOBSEN, 362 U.S. 73; BAKER V. CARR, 369 U.S. 186;
FLAST V. COHEN, 392 U.S. 83; RICHARDSON V. KENNEDY, 401 U.S. 901;
GRANITE FALLS STATE BANK V. SCHNEIDER, 402 U.S. 1006.  CASES WHERE
DENIAL WAS FOR WANT OF SUBJECT-MATTER JURISDICTION:  LYNCH V. HOUSEHOLD
FINANCE CORP., 405 U.S. 538; CARTER V. STANTON, 405 U.S. 669.  CASES
WHERE DENIAL WAS ON GROUNDS OF ABSTENTION OR FOR WANT OF EQUITABLE
JURISDICTION:  DOUD V. HODGE, 350 U.S. 485; ZWICKLER V. KOOTA, 389 U.S.
241; MITCHUM V. FOSTER, 407 U.S. 225; AMERICAN TRIAL LAWYERS ASSN V.
NEW JERSEY SUPREME COURT, 409 U.S. 467. 

/12/  PERHAPS THE ODDEST FEATURE OF 1253 IS THAT IT CONDITIONS THIS
COURT'S APPELLATE JURISDICTION ON WHETHER THE THREE-JUDGE COURT WAS
CORRECTLY CONVENED.  BUT THE COURT HAS ABJURED THIS LITERALISTIC
READING OF THE STATUTE AND HAS NOT HESITATED TO EXERCISE JURISDICTION
"TO DETERMINE THE AUTHORITY OF THE COURT BELOW AND 'TO MAKE SUCH
CORRECTIVE ORDER AS MAY BE APPROPRIATE TO THE ENFORCEMENT OF THE
LIMITATIONS WHICH THAT SECTION IMPOSES.'# BAILEY V. PATTERSON, 369 U.S.
31, 34, QUOTING GULLY V. INTERSTATE NATURAL GAS CO., 292 U.S. 16, 18. 

/13/  FOR EXAMPLE:  COMPARE IDLEWILD BON VOYAGE LIQUOR CORP. V.
EPSTEIN, SUPRA, WITH STRATTON V. ST. LOUIS S.W.R. CO., 282 U.S. 10
(WHETHER REVIEW OF A SINGLE JUDGE'S REFUSAL TO CONVENE A THREE-JUDGE
COURT IS AVAILABLE IN THE COURT OF APPEALS); COMPARE KENNEDY V. MENDOZA
MARTINEZ, 372 U.S. 144, WITH FHA V. THE DARLINGTON, INC., 358 U.S. 84,
87 (WHETHER THREE JUDGES ARE REQUIRED WHERE ONLY DECLARATORY RELIEF IS
REQUESTED); COMPARE SWIFT & CO. V. WICKHAM, 382 U.S. 111, WITH KESLER
V. DEPT. OF PUBLIC SAFETY, 369 U.S. 153 (WHETHER A THREE-JUDGE COURT IS
REQUIRED WHEN A COMPLAINT SEEKS TO ENJOIN A STATE STATUTE ON THE GROUND
THAT IT VIOLATES THE SUPREMACY CLAUSE). 

/14/  READ LITERALLY, 1253 WOULD GIVE THIS COURT APPELLATE
JURISDICTION OVER EVEN A SINGLE JUDGE'S ORDER GRANTING OR DENYING AN
INJUNCTION IF THE "ACTION, SUIT, OR PROCEEDING# WERE IN FACT ONE
"REQUIRED . . . TO BE HEARD AND DETERMINED"  BY THREE JUDGES.  BUT WE
HAVE GLOSSED THE PROVISION SO AS TO RESTRICT OUR JURISDICTION TO ORDERS
ACTUALLY ENTERED BY THREE-JUDGE COURTS.  SEE EX PARTE METROPOLITAN
WATER CO., 220 U.S. 539, 545. 

A SINGLE JUDGE IS LITERALLY FORBIDDEN TO "DISMISS THE ACTION, OR
ENTER A SUMMARY OR FINAL JUDGMENT" IN ANY CASE REQUIRED TO BE HEARD BY
THREE JUDGES.  28 U.S.C. 2284(5).  READ LITERALLY, THIS PROVISION MIGHT
BE HELD TO PROHIBIT A SINGLE JUDGE FROM DISMISSING A CASE UNLESS HE HAS
DETERMINED THAT IT FAILS TO MEET THE REQUIREMENTS OF 2281 OR 2282.  SEE
BERUEFFY, THE THREE JUDGE FEDERAL COURT, 15 ROCKY MT.L.REV.  64, 73 -
74 (1942), AND NOTE, 28 MINN.L.REV.  131, 132 (1944).  BUT WE HAVE
ALWAYS RECOGNIZED A SINGLE JUDGE'S POWER TO DISMISS A COMPLAINT FOR
WANT OF GENERAL SUBJECT-MATTER JURISDICTION, WITHOUT INQUIRY INTO THE
ADDITIONAL REQUISITES SPECIFIED IN 2281 AND 2282.  EX PARTE PORESKY,
290 U.S. 30, 31; BAILEY V. PATTERSON, 369 U.S., AT 33; IDLEWILD BON
VOYAGE LIQUOR CORP., 370 U.S., AT 715; GOOSBY V. OSSER, SUPRA. 

WHILE THE LITERAL TERMS OF THE THREE-JUDGE-COURT ORDER GRANTING OR
DENYING AN "INTERLOCUTORY OR PERMANENT INJUNCTION," WE HAVE IN FACT
DISCLAIMED JURISDICTION OVER INTERLOCUTORY ORDERS DENYING PERMANENT
INJUNCTIONS, GOLDSTEIN V. COX, 396 U.S. 471, AND ROCKEFELLER V.
CATHOLIC MEDICAL CENTER, 397 U.S. 820. 

WHILE 2281 REQUIRES A THREE-JUDGE COURT WHERE THE INJUNCTION WILL
OPERATE AGAINST ANY STATE "STATUTE," WE HAVE CONSTRUED THE TERM
NARROWLY, TO INCLUDE ONLY ENACTMENTS OF STATEWIDE APPLICATION, MOODY V.
FLOWERS, 387 U.S., AT 101.  CF. KING MFG. CO. V. CITY COUNCIL OF
AUGUSTA, 277 U.S. 100, 103 - 104, CONSTRUING FAR MORE BROADLY THE TERM
"STATUTE" AS USED IN THE PREDECESSOR TO 28 U.S.C. 1257(2). 

WHILE 2281 CALLS FOR THREE JUDGES TO ENJOIN A STATUTE "UPON THE
GROUND" OF ITS "UNCONSTITUTIONALITY," WE HAVE HELD THAT THREE JUDGES
ARE NOT IN FACT NECESSARY WHERE THE UNCONSTITUTIONALITY OF THE STATUTE
IS OBVIOUS AND PATENT, BAILEY V. PATTERSON, SUPRA, OR WHERE THE
CONSTITUTIONAL CHALLENGE IS GROUNDED ON THE SUPREMACY CLAUSE, SWIFT &
CO. V. WICKHAM, SUPRA.  SEE ALSO N. 12, SUPRA. 

/15/ PHILLIPS V. UNITED STATES, 312 U.S. 246, 250 - 251; BAILEY V.
PATTERSON, SUPRA, AT 33.  THE COURT SKETCHED THE LEGISLATIVE HISTORY OF
THE THREE-JUDGE-COURT STATUTES IN SWIFT & CO. V. WICKHAM, 382 U.S., AT
116 - 119.  SEE ALSO CURRIE, THE THREE-JUDGE DISTRICT COURT IN
CONSTITUTIONAL LITIGATION, 32 U.CHI.L.REV.  1, 3 - 12 (1964); NOTE, THE
THREE-JUDGE DISTRICT COURT:  SCOPE AND PROCEDURE UNDER SECTION 2281, 77
HARV.L.REV.  299, 299 - 301 (1963). 

/16/  "INASMUCH AS THIS PROCEDURE ALSO BRINGS DIRECT REVIEW OF A
DISTRICT COURT TO THIS COURT, ANY LOOSE CONSTRUCTION OF THE
REQUIREMENTS . . . WOULD DEFEAT THE PURPOSES OF CONGRESS, AS EXPRESSED
BY THE JURISDICTIONAL ACT OF FEBRUARY 13, 1925, TO KEEP WITHIN NARROW
CONFINES OUR APPELLATE DOCKET."  PHILLIPS V. UNITED STATES, 312 U.S. AT
250.  SEE ALSO GOLDSTEIN V. COX, 396 U.S., AT 478; GUNN V. UNIVERSITY
COMMITTEE, 399 U.S. 383, 387 - 388; ALLEN V. STATE BOARD OF ELECTIONS,
393 U.S., AT 562; BOARD OF REGENTS V. NEW LEFT EDUCATION PROJECT, 404
U.S. 541, 543. 

"THE HISTORY OF LATTER-DAY JUDICIARY ACT IS LARGELY THE STORY OF
RESTRICTING THE RIGHT OF APPEAL TO THE SUPREME COURT."  F. FRANKFURTER
& J. LANDIS, THE BUSINESS OF THE SUPREME COURT 119 (1927).  TO THIS
TREND OF REFORM, THE COURT'S MANDATORY APPELLATE JURISDICTION UNDER THE
THREE-JUDGE-COURT STATUTES REPRESENTS A MAJOR, AND INCREASINGLY
CONTROVERSIAL, EXCEPTION.  THE NUMBER OF CASES HEARD BY THREE-JUDGE
COURTS HAS DRAMATICALLY INCREASED IN THE PAST DECADE.  SEE AMMERMAN,
THREE-JUDGE COURTS:  SEE HOW THEY RUN., 52 F.R.D. 293, 304 - 306;
ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS, 1974, P. IX - 44.  IN THE 1972 TERM, 43 OF THE
COURT'S OPINIONS--NEARLY A QUARTER OF THE TOTAL--WERE IN THREE-JUDGE
COURT CASES.  SYMPOSIUM, THE FREUND REPORT:  A STATISTICAL ANALYSIS AND
CRITIQUE, 27 RUTGERS L.REV.  878, 902 (1974).  THIS MARKS A DILUTION OF
THAT CONTROL OVER OUR DOCKET WHICH MR. CHIEF JUSTICE TAFT IDENTIFIED AS
THE PRIME OBJECT OF THE 1925 ACT.  TAFT, THE JURISDICTION OF THE
SUPREME COURT UNDER THE ACT OF FEBRUARY 13, 1925, 35 YALE L.J. 1
(1925). 

/17/  THIS COURT TYPICALLY DISPOSES SUMMARILY OF BETWEEN TWO-THIRDS
AND THREE-FOURTHS OF THE THREE-JUDGE-COURT APPEALS FILED EACH TERM. 
DOUGLAS, THE SUPREME COURT AND ITS CASE LOAD, 45 CORNELL L.Q. 401, 410
(1960).  SEE SYMPOSIUM, 27 RUTGERS L.REV., SUPRA, N. 9, AT 902 - 903. 
IT SEEMS MORE THAN PROBABLE THAT MANY OF THESE CASES, WHILE UNWORTHY OF
PLENARY CONSIDERATION HERE, WOULD BENEFIT FROM THE NORMAL APPELLATE
REVIEW AVAILABLE TO SINGLE-JUDGE CASES IN THE COURTS OF APPEALS. 

/18/  SEE ROSADO V. WYMAN, 304 F.SUPP.  1354, APPEAL DISMISSED, 395
U.S. 826; MENGELKOCH V. INDUSTRIAL WELFARE COMM'N, 284 F.SUPP.  950,
VACATED TO PERMIT APPEAL TO COURT OF APPEALS, 393 U.S. 83; CROSSEN V.
BRECKENRIDGE, 446 F.2D 833, 837; AMERICAN COMMUTERS ASSN. V. LEVITT,
279 F.SUPP.  40, AFF'D, 405 F.2D 1148; HART V. KENNEDY, 314 F.SUPP. 
823, 824. 

/19/  WHERE A SINGLE JUDGE REFUSES TO REQUEST THE CONVENTION OF A
THREE-JUDGE COURT, BUT RETAINS JURISDICTION, REVIEW OF HIS REFUSAL MAY
BE HAD IN THE COURT OF APPEALS, SEE IDLEWILD BON VOYAGE LIQUOR CORP. V.
EPSTEIN, SUPRA, AND SCHACKMAN V. ARNEBERGH, 387 U.S. 427, EITHER
THROUGH PETITION FOR WRIT OF MANDAMUS OR THROUGH A CERTIFIED
INTERLOCUTORY APPEAL UNDER 28 U.S.C. 1292(B).  THESE ALSO ARE THE
ROUTES OF REVIEW OF A THREE-JUDGE COURT'S DECISION TO DISSOLVE ITSELF,
MENGELKOCH V. INDUSTRIAL WELFARE COMM'N, 393 U.S. 83, AND WILSON V.
PORT LAVACA, 391 U.S. 352.  WHERE A SINGLE JUDGE HAS DISPOSED OF THE
COMPLAINT THROUGH A FINAL ORDER, APPEAL LIES TO THE COURT OF APPEALS
UNDER 28 U.S.C. 1291. 

/20/  WILSON V. PORT LAVACA, SUPRA. 

/21/  IT APPEARS THAT GONZALEZ AND MERCANTILE SETTLED THE FORMER;S
DAMAGE CLAIM WHILE THIS APPEAL WAS PENDING.  THE COURT OF APPEALS WILL,
OF COURSE, BE FREE TO CONSIDER THIS NEW DEVELOPMENT IN APPRAISING THE
CORRECTNESS OF THE DISMISSAL OF THE COMPLAINT.  SEE SEC V. MEDICAL
COMMITTEE FOR HUMAN RIGHTS, 404 U.S. 403. 

/22/  28 U.S.C. 1291.  SEE MENGELKOCH V. INDUSTRIAL WELFARE COMM;N,
SUPRA, AT 84. 

JAMES O. LATTURNER ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

ALBERT E. JENNER, JR., ARGUED THE CAUSE FOR APPELLEE MERCANTILE
NATIONAL BANK OF CHICAGO.  WITH HIM ON THE BRIEF WERE WILLIAM B.
DAVENPORT, KEITH F. BODE, AND DANIEL R. MURRAY. 
..END :



















SAXBE V. BUSTOS, 419 U.S. 65 


       SAXBE, ATTORNEY GENERAL, ET AL. V. BUSTOS ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT. 

NO. 73 - 300.  ARGUED OCTOBER 17, 1974--DECIDED NOVEMBER 25,

           1974; 156 U.S. APP. D.C. 304, 481 F.2D 479, AFFIRMED IN

           PART AND REVERSED IN PART.  TOGETHER WITH NO. 73 - 480,

           CARDONA ET AL. V. SAXBE, ATTORNEY GENERAL, ET AL., ALSO

           ON CERTIORARI TO THE SAME COURT. 


    SOME ALIENS WHO LIVE IN MEXICO AND CANADA COMMUTE TO WORK IN

  THE UNITED STATES.  THE IMMIGRATION AND NATURALIZATION SERVICE

  HAS APPROVED THIS PRACTICE WITH RESPECT TO BOTH DAILY AND

  SEASONAL COMMUTERS, AND HAS CLASSIFIED SUCH ALIENS AS IMMIGARANTS

  "LAWFULLLY ADMITTED OFR PERMANENT RESIDENCE" WHO ARE "RETURNING

  FROM A TEMPORARY VISIT ABROAD," A CATEGORY OF "SPECIAL IMMIGRANT"

  DEFINED BY THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.

  1101(A)(27)(B).  THOSE WITH THAT CLASSIFICATION HAVE FREEDOM FROM

  USUAL DOCUMENTATION AND NUMERICAL REQUIREMENTS AND FROM THE LABOR

  CERTIFICATION REQUIREMENTS OF 8 U.S.C. 1182(A)(14).  CERTAIN

  FARMWORKERS AND A COLLECTIVE-BARGAINING AGENT FOR FARMWORKERS

  BROUGHT THIS SUIT FOR DECLARATORY AND INJUNCTIVE RELIEF AGAINST

  THE PRACTICE OF THUS CLASSIFYING SUCH ALIEN COMMUTERS.  THE

  DISTRICT COURT DISMISSED THE ACTION.  THE COURT OF APPEALS UPHELD

  THE CLASSIFICATION AS TO DAILY COMMUTERS BUT REJECTED IT AS TO

  SEASONAL COMMUTERS.  HELD:  ALIEN COMMUTERS ARE IMMIGRANTS WHO

  ARE "LAWFULLY ADMITTED FOR PERMANENT RESIDENCE," AND ARE

  "RETURNING FROM A TEMPORARY VISIT ABROAD" WHEN THEY ENTER THE

UNITED STATES, AND THIS "SPECIAL IMMIGRANT" CLASSIFICATION IS

  APPLICABLE TO BOTH DAILY AND SEASONAL COMMUTERS.  THIS HAS LONG

  BEEN THE ADMINISTRATIVE CONSTRUCTION OF THE STATUTE IN THE

  CONTEXT OF ALIEN COMMUTERS, A FACTOR WHICH MUST BE ACCORDED GREAT

  WEIGHT WHEN, AS HERE, CONGRESS HAS CONSIDERED THE SUBJECT AND HAS

  NOT SEEN FIT TO ALTER THE ADMINISTRATIVE PRACTICE.  PP. 69 - 80. 

     DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND STEWART, POWELL, AND REHNQUIST, JJ., JOINED. 

  WHITE, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN,

  MARSHALL, AND BLACKMUN, JJ., JOINED, POSTE, P. 80. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SOME ALIENS WHO HAVE THEIR HOMES IN CANADA OR MEXICO COMMUTE DAILY TO
PLACES OF EMPLOYMENT IN THIS COUNTRY AND OTHERS DO SO ON A SEASONAL
BASIS, A PRACTICE PERMITTED BY THE IMMIGRATION AND NATURALIZATION
SERVICE.  THE QUESTION IS WHETHER THE PRACTICE ON THE FACTS OF THESE
CASES CONFORMS WITH THE IMMIGRATION AND NATIONALITY ACT.  IT TURNS ON
THE MEANING OF 101(A)(27)(B), 66 STAT. 169, AS AMENDED, 79 STAT. 916, 8
U.S.C. 1101(A)(27)(B) WHICH DEFINES AS ONE VARIETY OF "SPECIAL
IMMIGRANT" AN IMMIGRANT "LAWFULLY ADMITTED FOR PERMANENT RESIDENCE, WHO
IS RETURNING FROM A TEMPORARY VISIT ABROAD." 

THOSE WHO QUALIFY UNDER 1101(A)(27)(B) MAY BE PERMITTED ENTRY
WITHOUT THE USUAL DOCUMENTATION REQUIREMENTS.  8 U.S.C. 1181(B).  THE
REGULATIONS /1/  IMPLEMENT 1181(B) BY ALLOWING SUCH AN IMMIGRANT TO USE
AN ALIEN REGISTRATION RECEIPT CARD, NORMALLY CALLED A "GREEN CARD," IN
LIEU OF AN IMMIGRANT VISA AND WITHOUT REGARD TO NUMERICAL LIMITATIONS
/2/  IF HE IS "RETURNING TO AN UNRELINQUISHED LAWFUL PERMANENT
RESIDENCE IN THE UNITED STATES AFTER A TEMPORARY ABSENCE ABROAD NOT
EXCEEDING 1 YEAR." 

THE ACT PRESUMES THAT AN ALIEN IS AN IMMIGRANT "UNTIL HE ESTABLISHES
. . . THAT HE IS ENTITLED TO A NONIMMIGRANT STATUS"; /3/  AND IT
DEFINES "IMMIGRANT"  AS EVERY ALIEN WHO CANNOT BRING HIMSELF INTO AN
ENUMERATED CLASS OF NONIMMIGRANTS.  /4/  ONE CLASS OF NONIMMIGRANTS /5/
IS "AN ALIEN HAVING A RESIDENCE IN A FOREIGN COUNTRY WHICH HE HAS NO
INTENTION OF ABANDONING . . . (II) WHO IS COMING TEMPORARILY TO THE
UNITED STATES TO PERFORM TEMPORARY SERVICES OR LABOR, IF UNEMPLOYED
PERSONS CAPABLE OF PERFORMING SUCH SERVICE OR LABOR CANNOT BE FOUND IN
THIS COUNTRY." 

AN ALIEN DOES NOT QUALIFY AS A NONIMMIGRANT UNDER THIS CLASS OF
NONIMMIGRANTS IF HE SEEKS TO PERFORM TEMPORARY LABOR AT A TIME WHEN
UNEMPLOYED PERSONS CAPABLE OF PERFORMING THAT LABOR CAN BE FOUND IN
THIS COUNTRY.  /6/  IF HE CANNOT QUALIFY AS A NONIMMIGRANT SOME OTHER
WAY, SUCH AN ALIEN IS SUBJECT TO THE ACT'S NUMERICAL LIMITATIONS,
UNLESS HE IS INCLUDED IN THE CLASSES OF "IMMEDIATE RELATIVES" OF A
UNITED STATES CITIZEN OR "SPECIAL IMMIGRANTS."  /7/  ON THE OTHER HAND,
AS ALREADY NOTED, ONE VARIETY OF "SPECIAL IMMIGRANT" IS AN ALIEN
"LAWFULLY ADMITTED FOR PERMANENT RESIDENCE, WHO IS RETURNING FROM A
TEMPORARY VISIT ABROAD."  /8/  ONE WHO SO QUALIFIES IS EXCLUDED FROM
THE LABOR CERTIFICATION PROVISIONS IN 8 U.S.C. 1182(A)(14).  /9/  THE
TERM "LAWFULLY ADMITTED FOR PERMANENT RESIDENCE" IS DEFINED AS "THE
STATUS OF HAVING BEEN LAWFULLY ACCORDED THE PRIVILEGE OF RESIDING
PERMANENTLY IN THE UNITED STATES AS AN IMMIGRANT . . . , SUCH STATUS
NOT HAVING CHANGED."  /10/  AN ALIEN ACHIEVES THAT STATUS IN THE FIRST
INSTANCE BY COMPLYING WITH ANY APPLICABLE NUMERICAL LIMITATIONS AND
WITH THE ACT'S OTHER REQUIREMENTS FOR ADMISSION, DETAILS NOT IMPORTANT
HERE.  AFTER HIS INITIAL ADMISSION ON THAT BASIS, HE IS FREE TO LEAVE
THIS COUNTRY TEMPORARILY AND TO RE-ENTER WITHOUT REGARD TO NUMERICAL
LIMITATIONS.  THE ACT AUTHORIZES THE ATTORNEY GENERAL TO RE-ADMIT SUCH
AN ALIEN WITHOUT A VISA OR OTHER FORMAL DOCUMENTATION.  1181(B).  HE
HAS EXERCISED THAT AUTHORITY, ALLOWING SUCH AN IMMIGRANT TO RETURN WITH
WHAT WAS CALLED IN THE BRIEFS AND ORAL ARGUMENT THE "GREEN CARD." 

THIS SUIT WAS BROUGHT BY THE UNITED FARM WORKERS ORGANIZING
COMMITTEE /11/  FOR DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE
PRACTICE OF GIVING ALIEN COMMUTERS THE DOCUMENTATION AND LABOR
CERTIFICATION BENEFITS OF CLASSIFICATION AS IMMIGRANTS "LAWFULLY
ADMITTED FOR PERMANENT RESIDENCE" WHO ARE "RETURNING FROM A TEMPORARY
VISIT ABROAD."  /12/  THE DISTRICT COURT DISMISSED THE ACTION WITHOUT
OPINION.  THE COURT OF APPEALS HELD THAT THE ADMISSION OF DAILY
COMMUTERS WAS PROPER BUT THAT THE ADMISSION OF SEASONAL COMMUTERS WAS
NOT, 156 U.S.APP.D.C. 304, 481 F.2D 479 (1973).  WE GRANTED THE
PETITION AND CROSS-PETITION IN LIGHT OF A CONFLICT BETWEEN THE DECISION
BELOW AND THAT OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN GOOCH
V. CLARK, 433 F.2D 74 (1970). 

OUR CONCLUSIONS ARE THAT COMMUTERS ARE IMMIGRANTS, THAT THEY ARE
"LAWFULLY ADMITTED FOR PERMANENT RESIDENCE," AND THAT THEY ARE
"RETURNING FROM A TEMPORARY VISIT ABROAD" WHEN THEY ENTER THE UNITED
STAES.  MOREOVER, THE WORDING AND LEGISLATIVE HISTORY OF THE STATUTE
AND THE LONG ADMINISTRATIVE CONSTRUCTION INDICATE THAT THE SAME
TREATMENT IS APPROPRIATE FOR BOTH DAILY AND SEASONAL COMMUTERS. 
COMMUTERS ARE THUS DIFFERENT FROM THOSE GROUPS OF ALIENS WHO CAN BE
ADMITTED ONLY ON CERTIFICATION BY THE SECRETARY OF LABOR THAT
UNEMPLOYED PERSONS CANNOT BE FOUND IN THIS COUNTRY AND THAT THE
EMPLOYMENT OF THE ALIENS "WILL NOT ADVERSELY AFFECT THE WAGES AND
WORKING CONDITIONS OF THE WORKERS IN THE UNITED STATES."  8 U.S.C.
1182(A)(14).  WE THUS AGREE WITH THE CONCLUSION OF THE NINTH CIRCUIT IN
GOOCH.  ACCORDINGLY, WE AFFIRM THE JUDGMENT NOW BEFORE US AS RESPECTS
DAILY COMMUTERS AND REVERSE IT AS RESPECTS SEASONAL COMMUTERS. 

A MAIN RELIANCE OF PLAINTIFFS IS ON THE PROVISION OF THE ACT /13/
WHICH IN THE MUCH-DISCUSSED SUBSECTION (15)(H)(II) PROVIDES THAT ONE
CATEGORY OF ALIEN NONIMMIGRANT IS "AN ALIEN HAVING A RESIDENCE IN A
FOREIGN COUNTRY WHICH HE HAS NO INTENTION OF ABANDONING . . . (II) WHO
IS COMING TEMPORARILY TO THE UNITED STATES TO PERFORM TEMPORARY
SERVICES OR LABOR, IF UNEMPLOYED PERSONS CAPABLE OF PERFORMING SUCH
SERVICE OR LABOR CANNOT BE FOUND IN THIS COUNTRY."  UNDER THE ARGUMENT
TENDERED, THESE ALIEN COMMUTERS PARTIALLY MEET THE DEFINITION OF
NONIMMIGRANTS IN SUBSECTION (15)(H)(II) IN THAT THEY HAVE A FOREIGN
RESIDENCE WHICH THEY DO NOT INTEND TO ABANDON AND COME HERE TEMPORARILY
TO PERFORM TEMPORARY SERVICE, BUT FAIL TO SATISFY SUBSECTION
(15)(H)(II) COMPLETELY IN THAT THEY DO NOT SHOW THAT UNEMPLOYED PEOPLE
CAPABLE OF PERFORMING THE SERVICES CANNOT BE FOUND IN THIS NATION. 
THAT SHOULD INVOKE THE PRESUMPTION IN THE ACT, ALREADY NOTED, THAT AN
ALIEN IS AN IMMIGRANT UNTIL OR UNLESS HE PROVES HE IS A NONIMMIGRANT. 
/14/ 

WE AGREE, MOREOVER, WITH THE NINTH CIRCUIT THAT THIS PROVISION "WAS
INTENDED TO CONFER NONIMMIGRANT STATUS ON CERTAIN ALIENS WHO WERE
NEEDED IN THE AMERICAN LABOR FORCE BUT WHO, UNLIKE COMMUTERS, WOULD BE
UNABLE TO ACHIEVE ADMITTANCE UNDER IMMIGRANT STATUS."  433 F.2D, AT
78.  THE ADMINISTRATIVE CONSTRUCTION OF THIS SUBSECTION (15)(H)(II) BY
THE IMMIGRATION SERVICE /15/  HAS BEEN THAT IT DOES NOT COVER AN ALIEN,
LIKE THE COMMUTER, WHO HAS A "PERMANENT RESIDENCE" HERE AND WHO COMES
TO PERFORM A JOB OF A PERMANENT CHARACTER, EVEN THOUGH THE PERIOD OF
HIS SERVICE IS LIMITED.  TO REPEAT, THE ACT PROVIDES THAT "(EVERY ALIEN
SHALLL BE PRESUMED TO BE AN IMMIGRANT UNTIL HE ESTABLISHES TO THE
SATISFACTION OF THE CONSULAR OFFICER . . . AND THE IMMIGRATION OFFICERS
. . . THAT HE IS ENTITLED TO A NONIMMIGRANT STATUS UNDER SECTION
1101(A)(15)."  /16/  BEFORE AN ALIEN CAN BE CLASSIFIED AS A
NONIMMIGRANT UNDER SUBSECTION (15)(H)(II) HIS PROSPECTIVE EMPLOYER MUST
SUBMIT A PETITION ON HIS BEHALF UNDER 8 U.S.C. 1184(C); AND AFTER THE
INS APPROVES THE PETITION, THE ALIEN MUST APPLY FOR NONIMMIGRANT STATUS
AND DEMONSTRATE THAT HE IN FACT QUALIFIES FOR THAT STATUS.  /17/ 

WE CONCLUDE THAT COMMUTERS ARE NOT NONIMMIGRANTS UNDER SUBSECTION
(15)(H)(II).  NONE OF THE OTHER CATEGORIES OF NONIMMIGRANTS ARE
APPLICABLE, AND THUS UNDER 1184(B) THE COMMUTERS ARE IMMIGRANTS. 

THE FACT THAT AN ALIEN COMMUTER WHO HAS NOT SHOWN HE MUST BE
CLASSIFIED AS A NONIMMIGRANT MUST BE CLASSIFIED AS AN IMMIGRANT IS NOT
THE END OF OUR PROBLEM.  THE QUESTION REMAINS WHETHER HE MAY PROPERLY
BE TREATED AS ONE WHO IS IN THE GROUP DEFINED AS "SPECIAL IMMIGRANTS"
UNDER SUBSECTION (27)(B), /18/  THAT IS, WHETHER COMMUTERS ARE
"LAWFULLY ADMITTED FOR PERMANENT RESIDENCE"  WHEN THEY HAVE NO ACTUAL
RESIDENCE IN THIS COUNTRY. 

RESIDENCE" AS THE STATUS OF HAVING BEEN LAWFULLY ACCORDED THE PRIVILEGE
OF RESIDING PERMANENTLY IN THE UNITED STATES AS AN IMMIGRANT IN
ACCORDANCE WITH THE IMMIGRATION LAWS, SUCH STATUS NOT HAVING CHANGED"
(ITALICS ADDED).  THE DEFINITION MAKES THE PHRASE DESCRIPTIVE OF A
STATUS OR PRIVILEGE WHICH NEED NOT BE REDUCED TO A PERMANENT RESIDENCE
TO BE SATISFIED, SO LONG AS THAT STATUS HAS NOT CHANGED. 

ONE ARGUMENT OF THE PLAINTIFFS IS THAT THE STATUS HAS CHANGED
BECAUSE RESIDENCE IN THIS COUNTRY WAS NEVER CLAIMED.  BUT WE READ THE
ACT AS DID THE NINTH CIRCUIT IN THE GOOCH CASE TO MEAN THAT THE CHANGE
IN STATUS WHICH CONGRESS HAD IN MIND WAS A CHANGE FROM AN IMMIGRANT
LAWFULLY ADMITTED FOR PERMANENT RESIDENCE TO THE STATUS OF A
NONIMMIGRANT PURSUANT TO 8 U.S.C. 1257.  433 F.2D, AT 79. 

THE STATUS REFERRED TO IN 1101(A)(20) IS ACQUIRED WHEN AN ALIEN
SATISFIES (1) ANY NUMERICAL LIMITATIONS ON THE ENTRY OF IMMIGRANTS,
/19/  (2) REQUIREMENTS AS TO QUALITATIVE MATTERS SUCH AS HEALTH,
MORALS, AND ECONOMIC STATUS, /20/  AND (3) THE NEED FOR AN IMMIGRANT
VISA.  /21/  THE APPLICANT MUST ALSO STATE WHETHER HE PLANS TO REMAIN
IN THE UNITED STATES PERMANENTLY.  /22/  BUT THE ACT DOES NOT DECLARE
OR SUGGEST THAT THE STATUS WILL BE DENIED HIM, IF HE DOES NOT INTEND TO
RESIDE PERMANENTLY HERE.  AS WE READ THE ACT, THE "STATUS" ACQUIRED
CARRIES SEVERAL IMPORTANT PRIVILEGES:  HE MAY REMAIN IN THE UNITED
STATES INDEFINITELY; HE IS FREE TO WORK IN THIS COUNTRY; HE MAY RETURN
TO THIS COUNTRY AFTER A TEMPORARY ABSENCE ABROAD; AND HE HAS THE
PRIVILEGE OF ESTABLISHING A PERMANENT RESIDENCE IN THE UNITED STATES. 

THUS WE CONCLUDE THAT COMMUTERS ARE IMMIGRANTS "LAWFULLY ADMITTED
FOR PERMANENT RESIDENCE."  AS DID BOTH THE MAJORITY AND DISSENT IN
GOOCH, WE ALSO FIND THAT COMMUTERS CAN BE VIEWED AS "RETURNING FROM A
TEMPORARY VISIT ABROAD."  433 F.2D, AT 79 - 81, 82 N. 1.  THE COURT
BELOW SO AGREED AS RESPECTS DAILY COMMUTERS, DISAGREEING ONLY AS TO
SEASONAL COMMUTERS.  NEITHER THE COURT BELOW NOR THE COURT OF APPEALS
IN GOOCH TOOK THE POSITION NOW TAKEN IN DISSENT HERE. 

OUR CONCLUSION REFLECTS THE ADMINISTRATIVE PRACTICE, DATING BACK AT
LEAST TO 1927 WHEN THE BUREAU OF IMMIGRATION WAS A PART OF THE
DEPARTMENT OF LABOR.  /23/  IN 1940 THE BUREAU WAS TRANSFERRED TO THE
DEPARTMENT OF JUSTICE /24/  WHERE IT REMAINS TODAY.  ON APRIL 1, 1927,
IT ISSUED GENERAL ORDER NO. 86.  /25/  UNDER THE ORDER, COMMUTERS WERE
REQUIRED TO GAIN ADMISSION AS IMMIGRANTS BEFORE THEY COULD HAVE BORDER
CROSSING PRIVILEGES.  THE ORDER PROVIDES THAT "(ALIENS WHO HAVE
COMPLIED WITH THE REQUIREMENTS OF THIS GENERAL ORDER GOVERNING
PERMANENT ADMISSION WILL BE CONSIDERED AS HAVING ENTERED FOR PERMANENT
RESIDENCE."  "THUS," SAID THE COURT OF APPEALS IN THE INSTANT CASES,
"THE DAILY COMMUTER WAS BORN," 156 U.S. APP. D.C., AT 304, 481 F.2D, AT
485. 

SUCH LONGSTANDING ADMINISTRATIVE CONSTRUCTION IS ENTITLED TO GREAT
WEIGHT, PARTICULARLY WHEN, AS HERE, CONGRESS HAS REVISITED THE ACT AND
LEFT THE PRACTICE UNTOUCHED.  SUCH A HISTORY OF ADMINISTRATIVE
CONSTRUCTION AND CONGRESSIONAL ACQUIESCENCE MAY ADD A GLOSS OR
QUALIFICATION TO WHAT IS ON ITS FACE UNQUALIFIED STATUTORY LANGUAGE. 
MASSACHUSETTS TRUSTEES V. UNITED STATES, 377 U.S. 235 (1964); UNITED
STATES V. MIDWEST OIL CO., 236 U.S. 459 (1915).  AS THE DEFENDANTS
BELOW ACKNOWLEDGE, THE MEANING OF THE PHRASE "LAWFULLY ADMITTED FOR
PERMANENT RESIDENCE" IN 1101(A)(27)(B) MAY NOT BE IDENTICAL TO THE
MEANING OF THE SAME LANGUAGE IN OTHER SECTIONS OF THE ACT WHERE THE
SAME HISTORY OF ADMINISTRATIVE CONSTRUCTION IS NOT PRESENT. 

WE SEE NO DIFFERENCE IN THE TREATMENT OF DAILY COMMUTERS AND
SEASONAL COMMUTERS.  THE STATUS OF THE SEASONAL COMMUTER IS THE SAME AS
THE STATUS OF THE DAILY COMMUTER BECAUSE THE IDENTICAL STATUTORY WORDS
COVER EACH.  THE COURT OF APPEALS, HOWEVER, RESTED ESSENTIALLY ON A
DIFFERENT LEGISLATIVE HISTORY OF SEASONAL COMMUTERS THAN HAD OBTAINED
IN CASES OF DAILY COMMUTERS. 

PRIOR TO 1917 THERE WERE ESSENTIALLY NO LIMITATIONS ON THE PRACTICE
OF COMMUTING FROM MEXICO OR CANADA TO THE UNITED STATES.  LEGISLATION
WAS PASSED IN 1917, 1921, AND 1924.  /26/  BUT UNDER THOSE STATUTES
COMMUTERS REMAINED ABLE FREELY TO CROSS THE BORDER SUBJECT ONLY TO
QUALITATIVE RESTRICTIONS IN THE 1917 ACT. 

AS ALREADY NOTED, THE ADMINISTRATIVE APPROACH CHANGED IN 1927 WHEN
THE BUREAU OF IMMIGRATION ISSUED ITS GENERAL ORDER NO. 86.  WHILE THE
1952 ACT, 66 STAT. 163, MADE NO MENTION OF COMMUTERS AND WHILE THE 1965
AMENDMENTS OF THE 1952 ACT, 79 STAT. 911, WERE LIKEWISE SILENT AS
RESPECTS COMMUTERS, THE COURT OF APPEALS ASSUMED THAT THE LONGSTANDING
PRACTICE OF ALLOWING DAILY COMMUTERS WAS NOT REPEALED SUB SILENTIO; AND
WE AGREE.  THE COURT OF APPEALS, HOWEVER, TOOK QUITE A DIFFERENT VIEW
OF THE SEASONAL COMMUTER PROBLEM BECAUSE OF ITS DIFFERENT HISTORY. 

THE SEASONAL COMMUTER PROBLEM DATES BACK AT LEAST TO 1943 WHEN THIS
GOVERNMENT AND MEXICO AGREED TO THE SEASONAL IMPORTATION OF MEXICAN
AGRICULTURAL WORKERS.  56 STAT. 1759.  CONGRESS LEGISLATED ON THE
PROBLEM IN 1951, /27/  REQUIRING FARMERS IN THIS NATION TO MAKE
REASONABLE EFFORTS TO ATTRACT DOMESTIC WORKERS PRIOR TO CERTIFICATION
BY THE SECRETARY OF LABOR OF THE NEED FOR FOREIGN LABOR.  THAT WAS
KNOWN AS THE BRACERO PROGRAM AND THE COURT OF APPEALS CALLED THE
SEASONAL COMMUTER MERELY A NEW NAME FOR THE FORMER BRACERO.  THAT IS
QUITE INACCURATE.  THE BRACEROS WERE AT THE START NONIMMIGRANTS; THE
SEASONAL COMMUTERS WERE IMMIGRANTS.  SOME BRACEROS, INDEED QUITE A FEW,
H.R. REP. NO. 722, 88TH CONG., 1ST SESS., 7, ACQUIRED PERMANENT
RESIDENCE STATUS.  THE SEASONAL COMMUTER, LIKE THE DAILY COMMUTER, HAS
ALWAYS BEEN IN THAT CATEGORY.     IN 1964 THE BRACERO TYPE OF SEASONAL
PROGRAM LAPSED; AND THE NEXT YEAR CONGRESS AMENDED THE IMMIGRATION AND
NATIONALITY ACT BY MAKING STRICTER THE CERTIFICATION BY THE SECRETARY
OF LABOR OF THE NEED FOR FOREIGN LABOR AND REQUIRING FINDINGS ON THE
LACK OF ANY ADVERSE EFFECT OF THE EMPLOYMENT OF ALIENS ON THE WAGES AND
WORKING CONDITIONS OF WORKERS IN THIS COUNTRY. 

BUT THAT PROVISION, WHICH WE HAVE QUOTED, /28/  DOES NOT APPLY TO
ALIENS LAWFULLY ADMITTED FOR PERMANENT RESIDENCE RETURNING FROM A
TEMPORARY VISIT ABROAD AND TO CERTAIN CLOSE RELATIVES.  AN ALIEN WHO
FIRST SOUGHT ADMISSION AFTER THE EFFECTIVE DATE OF THE 1965 AMENDMENT
WOULD NEED A CERTIFICATE OF THE SECRETARY OF LABOR; BUT IF HE ALREADY
WAS AN ALIEN LAWFULLY ADMITTED TO THE UNITED STATES FOR PERMANENT
RESIDENCE AND RETURNING FROM A TEMPORARY VISIT ABROAD, THE 1965
AMENDMENTS WOULD NOT AFFECT HIM.  THE PURPOSE OF CONGRESS WAS TO LIMIT
NEW ADMISSIONS OF ALIEN LABORERS, NOT TO PREJUDICE THE STATUS OF ALIENS
WHO, WHETHER DAILY OR SEASONAL COMMUTERS, HAD ACQUIRED PERMANENT
RESIDENCE HERE AND WERE RETURNING TO EXISTING JOBS.  /29/ 

WE HAVE MENTIONED GENERAL ORDER NO. 86 ISSUED ON APRIL 1, 1927,
WHICH TREATED THE COMMUTERS AS IMMIGRANTS (NOT NONIMMIGRANTS), WHO ON
OBTAINING THEIR ADMISSION CARDS WOULD BE "CONSIDERED AS HAVING ENTERED
FOR PERMANENT RESIDENCE."  /30/  CF. KARNUTH V. UNITED STATES EX REL.
ALBRO, 279 U.S. 231, 244 (1929).  /31/  THE THRUST OF GENERAL ORDER NO.
86 WAS TO LIFT ALIENS WHO WERE NATIVES OF CANADA AND MEXICO FROM THE
QUOTA PROVISIONS FOR NONIMMIGRANTS.  THUS, THEY ENTERED FROM THAT TIME
DOWN TO DATE, WITH NONQUOTA IMMIGRATION DOCUMENTS.  THAT REULATION WAS
CARRIED FORWARD IN VARIOUS REGULATIONS BEFORE 1952.  /32/  THE PRACTICE
WAS REVIEWED AND SUSTAINED IN VARIOUS PUBLISHED ADMINISTRATIVE
DECISIONS.  /33/ SOME SUGGESTED THAT THE 1952 ACT ELIMINATED THE ALIEN
COMMUTER.  THE BOARD OF IMMIGRATION APPEALS, HOWEVER, REAFFIRMED THE
VALIDITY OF THE PRACTICE.  MATTER OF H . . . O . . ., 5 I. & N. DEC.
716 (1954).  THEREAFTER REPEATED ADMINISTRATIVE DECISIONS /34/
AFFIRMED THE ADHERENCE TO THE ALIEN-COMMUTER CONCEPT.  WE DO NOT LABOR
THE ADMINISTRATIVE CONSTRUCTION PHASE OF THESE CASES FURTHER, BECAUSE
WHEN THE 1952 ACT WAS REPORTED, THE SENATE JUDICIARY COMMITTEE TENDERED
A VOLUMINOUS REPORT OF NEARLY 1,000 OAGES TOUCHING ON THE ALIEN
COMMUTERS, DESCRIBING THE PRACTICE IN SOME DETAIL, AND INCLUDING THE
CANADA AND MEXICO WERE TREATED AS LAWFULLY ADMITTED IMMIGRANTS.  NO
DOUBT AS TO THE DESIRABILITY OF THE PRACTICE WAS EXPRESSED.  IT IS
CLEAR THAT S.REP.  NO. 1515, 81ST CONG., 2D SESS. (1950) (THE OMNIBUS
STUDY REPORT), REVEALS A CONGRESSIONAL ACCEPTANCE OF THE SYSTEM. 

THE CHANGES RELEVANT TO COMMUTERS IN THE 1965 AMENDMENTS WERE, AS
STATED IN GOOCH, MINOR AND TECHNICAL AND CONTAIN NO SUGGESTION OF A
CHANGE IN THE COMMUTER PROBLEM, 433 F.2D, AT 80 - 81.  H.R. REP. NO.
745, 89TH CONG., 1ST SESS.; S.REP.  NO. 748, 89TH CONG., 1ST SESS. 

SINCE 1965 THERE HAVE BEEN NUMEROUS REPORTS BY COMMITTEES OF THE
CONGRESS ON THE ALIEN COMMUTER PROBLEM WHICH INDICATE THAT CONGRESS IS
VERY KNOWLEDGEABLE ABOUT THE PROBLEM AND HAS NOT REACHED A CONSENSUS
THAT THE ADMINISTRATIVE POLICY REACHING BACK AT LEAST TO GENERAL ORDER
NO. 86 IS WRONG.  WE KNOW FROM THE WESTERN HEMISPHERE REPORT /35/  THAT
THE DIMENSIONS OF THE PROBLEM ARE CONSIDERABLE.  DAILY COMMUTERS FROM
MEXICO NUMBER MORE THAN 42,000 OF WHOM 25,000 ARE ENGAGED IN
OCCUPATIONS OTHER THAN AGRICULTURE.  THE TOTAL OF CANADIAN COMMUTERS
EXCEEDS 10,000.  SEASONAL COMMUTERS NUMBER AT LEAST 8,300 ACCORDING TO
THE SERVICE'S ESTIMATE.  THE UNITED STATES COMMISSION ON CIVIL RIGHTS
ESTIMATES THAT IF MEXICAN COMMUTERS WERE CUT OFF, THEY WOULD LOSE $50
MILLION ANNUALLY.  /36/  THE STATE DEPARTMENT ESTIMATES THERE ARE
250,000 FAMILY MEMBERS DEPENDENT ON INCOME EARNED BY COMMUTERS /37/
AND THAT COMMUTERS ACCOUNT FOR 25% TO 30% OF THE INCOME EARNED BY THE
LABOR FORCE IN SOME MEXICAN BORDER COMMUNITIES.  /38/  TERMINATION OF
THE ALIEN COMMUTER PRACTICE MIGHT WELL HAVE A GREAT IMPACT ON AMERICAN
BORDER COMMUNITIES BECAUSE THE MEXICANS WHO HAVE THE STATUS OF
PERMANENT RESIDENTS COULD SETTLE HERE, INCREASING THE PROBLEMS OF
HOUSING AND EDUCATION IN THE BORDER TOWNS THIS SIDE OF THE RIO GRANDE. 
FORMER SECRETARY OF STATE ROGERS SUBMITTED TO THE DISTRICT COURT AN
AFFIDAVIT STATING THAT ANY "SUDDEN JUDICIAL TERMINATION OF THE COMMUTER
SYSTEM, DISPLACING THE PRESENT IMMIGRANT COMMUTERS, WOULD HAVE A
SERIOUS DELETERIOUS EFFECT UPON OUR RELATIONS WITH BOTH MEXICO AND
CANADA." 

OUR CONCLUSION IS TWOFOLD.  FIRST, THE PROVISIONS OF THE ACT WHICH
SANCTION DAILY COMMUTERS ARE THE ONES THAT ALSO SUPPORT SEASONAL
COMMUTERS.  WE WOULD HAVE TO READ THE SAME LANGUAGE IN TWO OPPOSED WAYS
TO SANCTION THE DAILY COMMUTER PROGRAM AND STRIKE DOWN THE SEASONAL
COMMUTER PROGRAM.  THERE IS NO DIFFERENCE IN ADMINISTRATIVE TREATMENT
OF THE TWO CLASSES OF COMMUTERS. 

SECOND, IF ALIEN COMMUTERS ARE TO BE ABOLISHED OR IF SEASONAL
COMMUTERS ARE TO BE TREATED DIFFERENTLY FROM DAILY COMMUTERS, THE
CONGRESS MUST DO IT.  THE CHANGES SUGGESTED IMPLICATE SO MANY POLICIES
AND RAISE SO MANY PROBLEMS OF A POLITICAL, ECONOMIC, AND SOCIAL NATURE
THAT IT IS FIT THAT THE JUDICIARY RECUSE ITSELF.  AT TIMES JUDGES MUST
LEGISLATE "INTERSTITIALLY" TO RESOLVE AMBIGUITIES IN LAWS.  BUT THE
PROBLEM OF TAKING ALL OR SOME ALIEN COMMUTERS ENGAGING IN FARM WORK OUT
OF THE ACT IS NOT "INTERSTITIAL" OR, AS MR. JUSTICE HOLMES ONCE PUT IT,
"MOLECULAR."  /39/  IT IS A MASSIVE OR "MOLOR" ACTION FOR WHICH THE
JUDICIARY IS ILL-EQUIPPED. 

WE AFFIRM THE COURT OF APPEALS INSOFAR AS IT HELD DAILY COMMUTERS
ARE LAWFULLY ADMITTED AND REVERSE IT INSOFAR AS SEASONAL COMMUTERS ARE
CONCERNED. 

              SO ORDERED. 

/1/  8 CFR 211.1(B)(1). 

/2/  8 U.S.C. 1181(A) AND 1151 - 1153. 

/3/  1184(B). 

/4/  1101(A)(15). 

/5/  1101(A)(15)(H).  LEGISLATION PROPOSED IN 1973 WOULD LIMIT THE
STAY OF THESE NONIMMIGRANTS TO ONE YEAR WITH POSSIBLE EXTENSION TO TWO
YEARS.  H.R. REPORT NO. 93 - 461, P. 16 (1973). 

/6/  8 U.S.C. 1101(A)(15)(H)(II). 

/7/  1151(A). 

/8/  1101(A)(27)(B).  THE 1973 HOUSE REPORT, SUPRA, N. 5, AT 16,
RECOGNIZES THE DIFFERENCE BETWEEN A "SPECIAL IMMIGRANT" AND
NONIMMIGRANTS COVERED BY 1101(A)(15)(H). 

/9/  TITLE 8 U.S.C. 1182(A)(14) PROVIDES IN RELEVANT PART: 

"(A) EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER, THE FOLLOWING
CLASSES OF ALIENS SHALL BE INELIGIBLE TO RECEIVE VISAS AND SHALL BE
EXCLUDED FROM ADMISSION INTO THE UNITED STATES:

        .          .          .        . 

"(14) ALIENS SEEKING TO ENTER THE UNITED STATES FOR THE PURPOSE OF
PERFORMING SKILLED OR UNSKILLED LABOR, UNLESS THE SECRETARY OF LABOR
HAS DETERMINED AND CERTIFIED TO THE SECRETARY OF STATE AND TO THE
ATTORNEY GENERAL THAT (A) THERE ARE NOT SUFFICIENT WORKERS IN THE
UNITED STATES WHO ARE ABLE, WILLING, QUALIFIED, AND AVAILABLE AT THE
TIME OF APPLICATION FOR A VISA AND ADMISSION TO THE UNITED STATES AND
AT THE PLACE TO WHICH THE ALIEN IS DESTINED TO PERFORM SUCH SKILLED OR
UNSKILLED LABOR, AND (B) THE EMPLOYMENT OF SUCH ALIENS WILL NOT
ADVERSELY AFFECT THE WAGES AND WORKING CONDITIONS OF THE WORKERS IN THE
UNITED STATES SIMILARLY EMPLOYED." 

/10/  1101(A)(20). 

/11/  A COLLECTIVE-BARGAINING AGENT FOR FARMWORKERS.  TWO FARM
LABORERS WERE ALSO PLAINTIFFS AND FOUR MORE INTERVENED IN THE DISTRICT
COURT.  THE PARTIES HEREIN ARE REFERRED TO AS THEY WERE IN THE DISTRICT
COURT. 

/12/  IN THE DISTRICT COURT AND THE COURT OF APPEALS PLAINTIFFS ALSO
ARGUED THAT 8 CFR 211.1(B)(1) SHOULD BE READ TO PRECLUDE THE ENTRY OF A
COMMUTER TO WORK AT A PLACE WHERE A LABOR DISPUTE EXISTS, EVEN IF THE
COMMUTER HAS PREVIOUSLY BEEN EMPLOYED THERE.  THIS CLAIM WAS NOT
DECIDED BY THE COURT OF APPEALS AND WAS NOT PRESENTED IN PLAINTIFFS'
PETITION FOR CERTIORARI.  HENCE WE OFFER NO VIEWS ON THE MERITS OF THIS
CLAIM. 

/13/  8 U.S.C. 1101(A)(15)(H). 

/14/  1184(B). 

/15/  MATTER OF CONTOPOULOS, 10 I. & N. DEC. 654 (1964). 

/16/  8 U.S.C. 1184(B). 

/17/  1 C. GORDON & H. ROSENFIELD, IMMIGRATION LAW AND PROCEDURE
2.14B (REV. ED. 1974). 

/18/  THE SUBSECTION IS IN 8 U.S.C. 1101(A). 

/19/  8 U.S.C. 1151(A). 

/20/  1182.  GINNIE AYERS 

/21/  1181(A), 1201. 

/22/  1202(A). 

/23/  SEE 32 STAT. 826; 34 STAT. 596; C. 141, 37 STAT. 736. 

/24/  BY THEN IT WAS CALLED THE IMMIGRATION AND NATURALIZATION
SERVICE.  REORGANIZATION PLAN NO. V, 54 STAT. 1238. 

/25/  GENERAL ORDER NO. 86 READS AS FOLLOWS:

        "SUBJECT:  LAND BORDER CORSSING PROCEDURE 

"1.  HEREAFTER ALIENS RESIDING IN FOREIGN CONTIGUOUS COUNTRIES AND
ENTERING THE UNITED STATES TO ENGAGE IN EXISTING EMPLOYMENT OR TO SEEK
EMPLOYMENT IN THIS COUNTRY WILL NOT BE CONSIDERED AS VISITING THE
UNITED STATES TEMPORARILY AS TOURISTS, OR TEMPORARILY FOR BUSINESS OR
PLEASURE, UNDER ANY PROVISIONS OF THE IMMIGRATION LAW WHICH EXEMPT
VISITORS FROM COMPLYING WITH CERTAIN REQUIREMENTS THEREOF; THAT IS,
THEY WILL BE CONSIDERED AS ALIENS OF THE 'IMMIGRANT'  CLASS. 

"2.  HOWEVER, THE FOLLOWING ALIENS OF THE SAID 'IMMIGRANT CLASS
RESIDING IN FOREIGN CONTIGUOUS COUNTRIES AND WHO ARE NOW ENJOYING THE
BORDER CROSSING PRIVILEGE MAY CONTINUE SO TO ENJOY IT UPON THE PAYMENT
OF HEAD TAX, PROVIDED SUCH HEAD TAX WAS ASSESSABLE ON ALIENS ENTERING
PERMANENTLY AT THE TIME OF ORIGINAL ADMISSION AND, PROVIDED FURTHER,
THAT THEY ARE NOT COMING TO SEEK EMPLOYMENT. 

"A.  ALIENS WHOSE ORIGINAL ADMISSION OCCURRED PRIOR TO JUNE 3,
1921. 

"B.  NATIVES OF NONQUOTA COUNTRIES WHOSE ORIGINAL ADMISSION OCCURRED
PRIOR TO JULY 1, 1924. 

        .          .          .          . 

"3.  ALIENS OF ALL NATIONALITIES OF THE 'IMMIGRANT' CLASS WHOSE
ORIGINAL ADMISSION OCCURRED SUBSEQUENT TO JUNE 30, 1924, WILL BE
REQUIRED TO MEET ALL PROVISIONS OF THE IMMIGRATION LAWS APPLYING TO
ALIENS OF THE 'IMMIGRANT'  CLASS.  ALIENS OF THIS CLASS ALREADY
ENJOYING THE BORDER CROSSING PRIVILEGE, HOWEVER, WILL BE GRANTED A
REASONABLE TIME, NOT TO EXCEED SIX MONTHS FROM JULY 1, 1927, WITHIN
WHICH TO OBTAIN IMMIGRATION VISAS AND OTHERWISE COMPLY WITH THE LAWS. 

"4.  ALIENS WHO HAVE ALREADY COMPLIED WITH THE REQUIREMENTS OF THE
IMMIGRATION LAWS AND THIS GENERAL ORDER MAY BE PERMITTED TO CONTINUE TO
ENJOY THE BORDER CROSSING PRIVILEGE. 

"5.  ALIENS WHO HAVE COMPLIED WITH THE REQUIREMENTS OF THIS GENERAL
ORDER GOVERNING PERMANENT ADMISSION WILL BE CONSIDERED AS HAVING
ENTERED FOR PERMANENT RESIDENCE. 

"6.  THE USE AND ISSUANCE OF IDENTIFICATION CARDS TO ALL CLASSES OF
ALIENS ENTITLED TO SAME WILL CONTINUE AS HERETOFORE. 

"7.  IDENTIFICATION CARDS HELD BY OR ISSUED TO ALIENS OF THE
'IMMIGRANT'  CLASS SHALL BE RUBBER-STAMPED AS FOLLOWS:

        "IMMIGRANT

        .       .          .          . 

"10.  ALL IDENTIFICATION CARDS HERETOFORE ISSUED, HELD BY ALIENS WHO
CANNOT, OR DO NOT, MEET THE REQUIREMENTS OF LAW, REGULATIONS AND THIS
ORDER, WILL BE TAKEN UP AND CANCELED UPON AN INCOMING TRIP OF THE
HOLDER AND APPROPRIATE ACTION TAKEN. 

        .          .          .          . 

"12.  THE STATUS OF HOLDERS OF IDENTIFICATION CARDS SHALL BE
INQUIRED INTO PERIODICALLY.  . . . WHEN THE HOLDER OF A 'NONIMMIGRANT'
IDENTIFICATION CARD QUALIFIES AS AN 'IMMIGRANT,' A NEW IDENTIFICATION
CARD SHALL BE ISSUED, STAMPED TO SHOW THE CORRECT STATUS." 

/26/  C. 29, 39 STAT. 874; 42 STAT. 5; C. 190, 43 STAT. 153. 

/27/  65 STAT. 119. 

/28/  N. 9, SUPRA.  SEE 1 GORDON & ROSENFIELD, SUPRA, N. 17, 2.40. 

/29/  WE FIND IN THE REPORTS ON THE 1965 ACT NO SUGGESTION THAT THE
COMMUTER PROGRAM WAS TO BE UPROOTED IN ITS ENTIRETY, S. REP. NO. 748,
89TH CONG., 1ST SESS. (1965).  THAT REPORT EMPHASIZES THE PURPOSE TO
PREVENT AN "INFLUX" OF FOREIGN LABOR, NOT TO DESTROY EXISTING LABOR
ARRANGEMENTS.  ID., AT 15. 

/30/  FOR THE TEXT OF GENERAL ORDER NO. 86 SEE N. 25, SUPRA. 

/31/  THE ALIENS IN KARNUTH WANTED TO BE TREATED AS NONIMMIGRANTS. 
ONE OF THE CATEGORIES OF NONIMMIGRANTS UNDER 3 OF THE IMMIGRATION ACT
OF 1924, 43 STAT. 154, WAS DEFINED AS "AN ALIEN VISITING THE UNITED
STATES TEMPORARILY . . . FOR BUSINESS OR PLEASURE."  THE COURT HELD
THEY DID NOT QUALIFY AS LABORERS FOR HIRE. 

/32/  IMMIGRATION RULES AND REGULATIONS, JAN. 1, 1930, RULE 3, SUBD.
C; 8 CFR 3.6 (1939); 8 CFR 110.6 (1947). 

/33/  MATTER OF D . . . C . . ., 3 I. & N. DEC. 519 (1949); MATTER
OF L. . . ., 4 I. & N. DEC. 454 (1951). 

/34/  MATTER OF M . . . D . . . S . . ., 8 I. & N. DEC. 209 (1958);
MATTER OF BAILEY, 11 I. & N. DEC. 466 (1966); MATTER OF BURCIAGA
SALCEDO, 11 I. & N. DEC. 665 (1966); MATTER OF GERHARD, 12 I. & N. DEC.
556 (1967); MATTER OF WIGHTON, 13 I. & N. DEC. 683 (1971); MATTER OF
HOFFMAN-ARVAYO, 13 I. & N. DEC. 750 (1971). 

/35/  REPORT OF SELECT COMMISSION ON WESTERN HEMISPHERE IMMIGRATION
104 (1968).  SEE S. REP. NO. 91 - 83, P. 65 (1969), STATING THAT THE
ALIEN COMMUTER PROBLEM "CAN BE RESOLVED NOT BY DRASTICALLY PUTTING AN
END TO THE COMMUTER SYSTEM, BUT BY REFINING ITS CURRENT OPERATIONS." 
SEE HEARINGS ON H.R. 9112, H.R. 15092, H.R. 17370 BEFORE SUBCOMMITTEE
NO. 1 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 91ST CONG., 2D SESS.,
205 - 207. 

/36/  STRANGER IN ONE'S LAND 12 (CLEARINGHOUSE PUBLICATION NO. 19,
1970). 

/37/  STATEMENT OF ASSISTANT SECRETARY OF STATE OLIVER TO THE SENATE
SUBCOMMITTEE ON IMMIGRATION, SEPT. 25, 1967, P. 6. 

/38/  ID., AT 4. 

/39/  I RECOGNIZE WITHOUT HESITATION THAT JUDGES DO AND MUST
LEGISLATE, BUT THEY CAN DO SO ONLY INTERSTITIALLY; THEY ARE CONFINED
FROM MOLAR TO MOLECULAR MOTIONS."  SOUTHERN PACIFIC CO. V JENSEN.  244
U.S. 205, 221 (1917) (DISSENTING OPINION). 

MR. JUSTICE WHITE, JOINED BY MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, AND MR. JUSTICE BLACKMUN, DISSENTING. 

THE COURT, IN REACHING AN INTERPRETATION OF THE IMMIGRATION STATUTES
WHICH PERMITS A FINDING THAT DAILY AND SEASONAL COMMUTERS FROM MEXICO
AND CANADA ARE "SPECIAL IMMIGRANTS" NOT SUBJECT TO DOCUMENTATION AND
NUMERICAL RESTRICTIONS UPON ENTRY TO THIS COUNTRY, CONTRAVENES ONE OF
THE CARDINAL PRINCIPLES OF STATUTORY CONSTRUCTION:  "ADMINISTRATIVE
PRACTICE DOES NOT AVAIL TO OVERCOME A STATUE SO PLAIN IN ITS COMMANDS
AS TO LEAVE NOTHING FOR CONSTRUCTION."  NORWEGIAN NITROGEN PRODUCTS CO.
V. UNITED STATES, 288 U.S. 294, 315 (1933) (CARDOZO, J.). 
ADMINISTRATIVE CONSTRUCTION OVER A LONG PERIOD OF TIME IS AN AVAILABLE
TOOL FOR JUDICIAL INTERPRETATION OF A STATUTE ONLY WHEN THE STATUTORY
TERMS ARE DOUBTFUL OR AMBIGUOUS.  UNITED STATES V. SOUTHERN UTE
INDIANS, 402 U.S. 159, 173 N. 8 (1971); ESTATE OF SANFORD V.
COMMISSIONER, 308 U.S. 39, 52 (1939); NORWEGIAN NITROGEN PRODUCTS CO.
V. UNITED STATES, SUPRA.  IN LIGHT OF THE CHARACTERISTICS OF THE ALIENS
WHOSE STATUS IS IN QUESTION AND THE ORDINARY MEANING OF THE VERY
SPECIFIC TERMS CONGRESS USED IN THESE IMMIGRATION STATUTES, THIS
PRINCIPLE APPLIES WITH FORCE HERE. 

        I 

DAILY AND SEASONAL COMMUTERS BOTH RESIDE IN FACT IN EITHER MEXICO OR
CANADA AND CROSS THE BORDER INTO THIS COUNTRY EITHER DAILY OR
SEASONALLY TO WORK.  /1/ THE DAILY COMMUTER'S DEFINING CHARACTERISTIC
IS HIS LIMITED PRESENCE IN THIS COUNTRY; HE COMES ACROSS THE BORDER TO
WORK EACH DAY AND RETURNS TO HIS ACTUAL DWELLING PLACE IN MEXICO OR
CANADA WHEN HIS WORK IS DONE.  THE SEASONAL COMMUTER, IN CONTRAST,
REMAINS IN THIS COUNTRY CONTINUOUSLY DURING THE SEASONS IN WHICH HE
WORKS HERE, BUT THEN ABSENTS HIMSELF COMPLETELY FOR THE REMAINING
PORTIONS OF THE YEAR.  FOR THE COURT TO REACH ITS RESULT, IT MUST
UNDERTAKE THE UNLIKELY PROJECT OF DEMONSTRATING THAT THESE ALIENS ARE
IN LEGAL EFFECT PERMANENT RESIDENTS OF THE UNITED STATES UNDER THE
IMMIGRATION LAWS. 

TO QUALITY AS A "SPECIAL IMMIGRANT" GIVEN DISPENSTATIONS FROM NORMAL
DOCUMENTATION REQUIREMENTS AND NUMERICAL LIMITATIONS, A COMMUTER MUST
BE "AN IMMIGRANT, LAWFULLY ADMITTED FOR PERMANENT RESIDENCE, WHO IS
RETURNING FROM A TEMPORARY VISIT ABROAD."  8 U.S.C. 1101(A)(27)(B). 
THE INCLUDED PHRASE "LAWFULLY ADMITTED FOR PERMANENT RESIDENCE" MEANS
IN TURN "THE STATUS OF HAVING BEEN LAWFULLY ACCORDED THE PRIVILEGE OF
RESIDING PERMANENTLY IN THE UNITED STATES AS AN IMMIGRANT IN ACCORDANCE
WITH THE IMMIGRATION LAWS, SUCH STATUS NOT HAVING CHANGED." 
1101(A)(20).  THE IMMIGRATION LAWS DEFINE "PERMANENT RESIDENCE" AS "THE
PLACE OF GENERAL ABODE," A PERSON'S "PRINCIPAL, ACTUAL DWELLING PLACE
IN FACT, WITHOUT REGARD TO INTENT," 1101 (A)(33), WITH THE RELATIONSHIP
OF THE PERSON TO THE PLACE OF RESIDENCE BEING #OF CONTINUING OR LASTING
NATURE, AS DISTINGUISHED FROM TEMPORARY.  . . ."  1101 (A)(31).  UNDER
THE IMMIGRATION AND NATURALIZATION SERVICE'S OWN REGULATIONS, IN ORDER
TO BE EXEMPT FROM THE NORMAL DOCUMENTATION REQUIREMENTS UPON ENTRY, AN
ALIEN MUST BE RETURNING TO HIS 'UNRELINQUISHED LAWFUL PERMANENT
RESIDENCE' FROM A "TEMPORARY ABSENCE ABROAD."  8 CFR 211.1(B)(1).  ON
ITS FACE, THE PRESENT PRACTICE OF THE SERVICE IS FLATLY CONTRARY TO ITS
OWN REGULATION. 

CONFRONTED WITH THE OBVIOUS DIFFICULTY THAT THIS STATUTORY LANGUAGE
DEFINING PERMANENT RESIDENT STATUS AND THE REGULATIONS WILL NOT
ACCOMMODATE THE DAILY AND SEASONAL COMMUTERS, /2/  THE MAJORITY,
WITHOUT THE AID OF LEGISLATIVE HISTORY, CONTENDS THAT THESE PLAIN WORDS
SHOULD BE GIVEN SPECIAL, TECHNICAL MEANINGS: 

   "SECTION 1101(A)(20) DEFINES 'LAWFULLY ADMITTED FOR PERMANENT

  RESIDENCE' AS 'THE STATUS OF HAVING BEEN LAWFULLY ACCORDED THE

  PRIVILEGE OF RESIDING PERMANENTLY IN THE UNITED S AT S A AN

  IMMIGRANT IN ACCORDANCE WITH THE IMMIGRATION LAWS, SUCH STATUS

  NOT HAVING CHANGED' (ITALICS ADDED).  THE DEFINITION MAKES THE

  PHRASE DESCRIPTIVE OF A STATUS OR PRIVILEGE WHICH NEED NOT BE

  REDUCED TO A PERMANENT RESIDENCE TO BE SATISFIED, SO LONG AS THAT

  STATUS HAS NOT CHANGED."  ANTE, AT 71 (ITALICS SUPPLIED BY THE

  COURT). 

THE USE OF ITALICS WILL NOT ALTER THE ORDINARY MEANING OF THE
STATUTORY TERMINOLOGY, HOWEVER, AND THE COURT GIVES NO BASIS FOR
BELIEVING THAT CONGRESS INTENDED SOMETHING OTHER THAN THE ORDINARY
MEANING OF THE WORDS IT USED.  NO ONE COULD REASONABLY SUGGEST THAT
CONGRESS WAS SEEKING TO ACCOMMODATE THE COMMUTERS WHEN IT ENACTED THESE
DEFINITIONS AND TO PROVIDE SPECIAL STATUS TO THOSE WHO DO NOT RESIDE
AND DO NOT INTEND TO RESIDE IN THIS COUNTRY.  CLEARLY IT WAS DEALING
WITH THOSE ALIENS WHO SEEK PERMANENT-RESIDENT STATUS IN THIS COUNTRY
AND WHO FULFILL THAT INTENTION. 

SINCE THE LANGUAGE OF THE STATUTE SIMPLY WILL NOT BEND TO ALLOW THE
PROPOSITION WHICH THE GOVERNMENT AND THE COURT ADOPT--THAT IN DEFINING
"LAWFULLY ADMITTED FOR PERMANENT RESIDENCE" CONGRESS MEANT TO INCLUDE
PERSONS WHO HAVE NEVER INTENDED TO RESIDE PERMANENTLY IN THIS COUNTRY,
WHO DO NOT CURRENTLY RESIDE IN THIS COUNTRY, AND WHO NEVER WILL BECOME
ACTUAL PERMANENT RESIDENTS /3/  --THE ULTIMATE RATIONALE FOR THE
DECISION MUST BE THAT THE PLAIN MEANING OF THE STATUTE HAS BEEN CHANGED
BY A LONGSTANDING ADMINISTRATIVE PRACTICE ACCEPTED BY CONGRESS AS THE
APPROPRIATE CONSTRUCTION.  /4/

        II 

ADMINISTRATIVE CONSTRUCTION OF A STATUTE WHICH CONFLICTS WITH THE
EXPRESS MEANING OF THE STATUTORY TERMS CAN BE VIEWED AS AUTHORITATIVE
ONLY IF IT APPEARS THAT CONGRESS HAS IN FACT ACCEPTED THAT
CONSTRUCTION, AND THE BURDEN OF PROOF NECESSARILY IS ON THE PROPONENT
OF THE ADMINISTRATIVE VIEW.  SINCE "(CONGRESSIONAL INACTION FREQUENTLY
BETOKENS UNAWARENESS, PREOCCUPATION, OR PARALYSIS," ZUBER V. ALLEN, 396
U.S. 168, 185 - 186, N. 21 (1969), CONGRESSIONAL SILENCE STANDING ALONE
CANNOT CONSTITUTE CONGRESSIONAL ACCEPTANCE OF A CONTINUING
ADMINISTRATIVE PRACTICE.  THE COURT, HOWEVER, ELEVATES SUCH SILENCE TO
ACQUIESCENCE BY STRESSING PROOF OF THE PRACTICE AND THE ABSENCE OF ANY
INDICATION THAT CONGRESS HAS "REPEALED" IT.  ANTE, AT 75. 

THE ADMINISTRATIVE PRACTICE OF TREATING DAILY COMMUTERS AS IMMIGRANT
ALIENS BEGAN IN 1927 WITH THE DEPARTMENT OF LABOR'S GENERAL ORDER NO.
86.  /5/  SINCE MEXICANS AND CANADIANS WERE NOT SUBJECT TO NUMERICAL
LIMITATIONS ON ENTRY INTO THIS COUNTRY, THIS CLASSIFICATION OF THE
COMMUTERS HAD NO PRACTICAL EFFECT UPON THEM; INFORMAL DOCUMENTATION
REQUIREMENTS WERE FOLLOWED.  /6/  IT WAS NOT UNTIL 1952 THAT CONGRESS
ENACTED A PROVISION WHICH COULD HAVE LIMITED THE ENTRY OF COMMUTERS. 
UNDER 212(A)(14) OF THE 1952 ACT, 66 STAT. 183, CONGRESS PROVIDED THAT
AN IMMIGRANT COULD NOT ENTER IF THE SECRETARY OF LABOR CERTIFIED THAT
THERE WERE SUFFICIENT DOMESTIC WORKERS AVAILABLE IN HIS FIELD OF WORK
OR THAT HIS ENTRY WOULD HAVE AN ADVERSE IMPACT ON THE WAGES OR WORKING
CONDITIONS OF DOMESTIC WORKERS.  IN 1965, CONGRESS TIGHTENED THIS
RESTRICTION BY PROVIDING THAT ALIENS WERE INADMISSIBLE UNLESS THE
SECRETARY OF LABOR CERTIFIED THAT THERE WERE INSUFFICIENT DOMESTIC
WORKERS AVAILABLE IN THE FIELD AND THAT THE EMPLOYMENT OF ALIENS WOULD
NOT ADVERSELY AFFECT WAGES AND CONDITIONS OF AMERICAN WORKERS.  8
U.S.C. 1182(A)(14).  /7/  IN ANOTHER 1965 AMENDMENT, CONGRESS IMPOSED
THE FIRST QUOTA ON IMMIGRATION FROM THE WESTERN HEMISPHERE, EFFECTIVE
IN 1968.  /8/ 

THERE CAN BE NO REASONABLE PRESUMPTION, THEREFORE, THAT PRIOR TO
1952 CONGRESS CONCERNED ITSELF WITH THE PROPRIETY OF THE ADMINISTRATIVE
CLASSIFICATION OF DAILY COMMUTERS UNDER THE IMMIGRATION STATUTES.  /9/
ONLY WITH THE PASSAGE OF THE 1952 LEGISLATION AND SUBSEQUENT AMENDMENTS
WAS THERE EVIDENCE OF SOME POSSIBLE CONCERN ON THE PART OF CONGRESS
WITH THE NUMBER OF MEXICAN AND CANADIAN ALIENS ENTERING THIS COUNTRY TO
WORK.  THUS IF CONGRESS BOTH EXPRESSED CONCERN AT THE INFLUX OF ALIEN
WORKERS BUT APPROVED THE COMMUTER PRACTICE, THEN THE COURT'S CONCLUSION
OF CONGRESSIONAL ACQUIESCENCE IN THE ADMINISTRATIVE CONSTRUCTION WOULD
HAVE SOME PERSUASIVE FORCE.  SINCE THAT CONSTRUCTION CONFLICTS WITH THE
MEANING OF THE STATUTE ON ITS FACE, HOWEVER, SOMETHING MORE THAN
SILENCE IS REQUIRED TO ESTABLISH ACQUIESCENCE.  CF. LEARY V. UNITED
STATES, 395 U.S. 6, 24 - 25 (1969).  THE ONLY EVIDENCE OF CONGRESSIONAL
ACCEPTANCE CITED BY THE COURT IS A BRIEF DESCRIPTION OF THE PRIOR
PRACTICE WITH RESPECT TO COMMUTERS CONTAINED IN AN EXTREMELY EXTENSIVE
REPORT OF AN INVESTIGATION OF THIS NATION'S IMMIGRATION SYSTEM
PUBLISHED BY THE SENATE JUDICIARY COMMITTEE IN 1950.  /10/  THE FACT
THAT "(NO DOUBT AS TO THE DESIRABILITY OF THE PRACTICE WAS EXPRESSED,"
ANTE, AT 78, WILL NOT OVERCOME THE FACT THAT THE TERMS OF THE STATUTE
PASSED TWO YEARS LATER ARE INCOMPATIBLE WITH THAT PRACTICE, AND NEITHER
THE COURT NOR THE GOVERNMENT CAN POINT TO ANY EXPRESS CONGRESSIONAL
ACCEPTANCE OF THAT PRACTICE IN SPITE OF THE INCOMPATIBILITY.  /11/  THE
COURT DOES SAY THAT SINCE 1965 THERE HAVE BEEN NUMEROUS COMMITTEE
REPORTS INDICATING CONGRESSIONAL KNOWLEDGE OF THE COMMUTER PROBLEM AND
THAT CONGRESS "HAS NOT REACHED A CONSENSUS THAT THE ADMINISTRATIVE
POLICY . . . IS WRONG."  IBID.  BUT THE COURT HAS CLEARLY, AND
ERRONEOUSLY, PLACED THE BURDEN UPON CONGRESS TO SHOW THAT IT HAS NOT
ACCEPTED THE PRACTICE RATHER THAN ON THE ADMINISTRATIVE AGENCY TO
ESTABLISH THAT CONGRESS HAS ACQUIESCED. 

VERY RECENTLY, IN NOTING AN EXCEPTION TO THE PRINCIPLE OF GIVING
GREAT WEIGHT TO AN ADMINISTRATIVE CONSTRUCTION OF A STATUTE, WE SAID
THAT "AN AGENCY MAY NOT BOOTSTRAP ITSELF INTO AN AREA IN WHICH IT HAS
NO JURISDICTION BY REPEATEDLY VIOLATING ITS STATUTORY MANDATE."  FMC V.
SEATRAIN LINES, INC., 411 U.S. 726, 745 (1973).  BUT THE COURT HAS
ALLOWED AN AGENCY TO DO SO IN THIS CASE.  /12/

        III 

THE MAJORITY ACKNOWLEDGES THE MANY POLITICAL, ECONOMIC, AND SOCIAL
IMPLICATIONS OF THE ISSUES IN THIS CASE AND THE NEED FOR THE COURT TO
LEGISLATE ONLY WHEN INTERSTITIAL AMBIGUITIES IN A STATUTE REQUIRE
RESOLUTION, BUT IT THEN RESTS ITS REJECTION OF THESE UNAMBIGUOUS
PROVISIONS OF THE IMMIGRATION LAWS UPON LEGISLATIVE CONSIDERATIONS:
THE ECONOMIC CONSEQUENCES TO THE ALIEN COMMUTERS AND TO THEIR
COMMUNITIES OF FINDING THAT THE ADMINISTRATIVE PRACTICE IS NOT
CONSISTENT WITH THE STATUTE, THE POSSIBLE IMPACT UPON AMERICAN BORDER
COMMUNITIES IF THOSE COMMUTERS WHO ARE LEGALLY CAPABLE OF DOING SO
CHOOSE TO TAKE UP ACTUAL RESIDENCE IN THIS COUNTRY, AND THE NEED TO
AVOID NEGATIVE EFFECTS UPON THIS COUNTRY'S RELATIONS WITH MEXICO AND
CANADA.  ANTE, AT 78 - 79.  BUT THESE INTERESTS, AS WELL AS THE
OPPOSING INTERESTS OF DOMESTIC LABOR, FORM PART OF THE CONGRESSIONAL
CALCULUS, AND THIS COURT IS HARDLY EQUIPPED OR AUTHORIZED TO PREDICT BY
ITS DECISION THE DIRECTION IN WHICH THAT BALANCE OF INTERESTS WILL
ULTIMATELY TIP.  BECAUSE I BELIEVE THAT THE COURT HAS STRAYED FROM THE
NEUTRAL JUDICIAL FUNCTION OF APPLYING TRADITIONAL PRINCIPLES OF
STATUTORY CONSTRUCTION, I MUST RESPECTFULLY DISSENT. 

/1/  COUNSEL FOR THE FEDERAL PARTIES (HEREINAFTER THE GOVERNMENT)
INDICATED AT ORAL ARGUMENT THAT COMMUTERS ACTUALLY FORM A SPECTRUM
RATHER THAN TWO HARD-AND-FAST CATEGORIES.  SOME COMMUTERS STAY IN THIS
COUNTRY FOR WHOLE SEASONS AND THEN SWITCH LATER TO DAILY COMMUTING. 
SOME DAILY COMMUTERS COME ACROSS THE BORDER LESS REGULARLY THAN EVERY
WORKDAY, AND SOMETIMES SEEK ONLY TEMPORARY EMPLOYMENT AND SWITCH
EMPLOYERS.  TR. OF ORAL ARG. 18, 52, 54. 

/2/  STRAIN BETWEEN THE STATUTE AND THE ADMINISTRATIVE PRACTICE IS
ALSO EVIDENT IN THE NEED FOR THE GOVERNMENT TO FIT THE DAILY COMMUTER'S
TRIP EACH DAY FROM HIS HOME IN MEXICO OR CANADA TO HIS WORKPLACE IN
THIS COUNTRY AS A RETURN TO THIS COUNTRY "FROM A TEMPORARY VISIT
ABROAD."  8 U.S.C. 1101 (A)(27)(B).  AS INDICATED IN THE TEXT, THE
REGULATIONS REFER TO A RETURN TO "AN UNRELINQUISHED LAWFUL PERMANENT
RESIDENCE" IN THIS COUNTRY FROM "A TEMPORARY ABSENCE ABROAD.  . . ."  8
CFR 211.1(B). 

/3/  IN AN EFFORT TO MAKE THE FACTS FIT THE STATUTE, THE COURT OF
APPEALS FOUND THAT THE COMMUTER'S PLACE OF WORK COULD BE CONSIDERED HIS
PERMANENT RESIDENCE.  156 U.S.APP.D.C. 304, 311, 481 F.2D 479, 486
(1973).  OTHERS HAVE NOTED THE "LOGICAL INCONSISTENCY# AND THE LACK OF
A PRECISE FIT BETWEEN THE PRACTICE AND THE LAW BUT HAVE JUSTIFIED THE
DISCORDANCE BY CITING "PRACTICAL NEEDS AND CONSIDERATIONS OF FOREIGN
POLICY."  1 C. GORDON & H. ROSENFIELD, IMMIGRATION LAW AND PROCEDURE
2.19, P. 2 - 105 (1973 CUM. SUPP.).  THE PRACTICE HAS BEEN VIEWED AS AN
"AMIABLE FICTION" AND THE PRODUCT OF "ADMINISTRATIVE INGENUITY." 
ID.,2.8B, P. 2-43 (1974).  THE BOARD OF IMMIGRATION APPEALS HAS
SIMILARLY ACKNOWLEDGED THAT THE COMMUTER PRACTICE "MANIFESTLY DOES NOT
FIT INTO ANY PRECISE CATEGORY FOUND IN THE IMMIGRATION STATUTES" AND
THAT "(THE STATUS IS AN ARTIFICIAL ONE, PREDICATED UPON GOOD
INTERNATIONAL RELATIONS MAINTAINED AND CHERISHED BETWEEN FRIENDLY
NEIGHBORS."  MATTER OF M . . . D . . . S . . ., 8 I. & N. DEC. 209, 213
(1958). 

/4/  THE EFFECT OF THE COURT'S DECISION IS NOT ONLY TO STRETCH THE
MEANING OF THE STATUTE SO AS TO INCLUDE COMMUTERS WITHIN THE PERMANENT
RESIDENT STATUS, BUT ALSO TO THROW INTO QUESTION THE MEANING OF
"PERMANENT RESIDENT" THROUGHOUT THE IMMIGRATION LAWS WITH OBVIOUS
ANOMALOUS CONSEQUENCES.  SEE GOOCH V. CLARK, 433 F.2D 74, 83 - 85 (CA9
1970) (WRIGHT, J., DISSENTING).  FOR EXAMPLE, THE SPOUSES, UNMARRIED
SONS OR UNMARRIED DAUGHTERS OF AN ALIEN LAWFULLY ADMITTED FOR PERMANENT
RESIDENCE" ARE INCLUDED IN THE SECOND PREFERENCE GROUP FOR IMMIGRATION
VISAS.  8 U.S.C. 1153(A)(2).  THUS A COMMUTER'S IMMEDIATE KIN ARE
PERHAPS ELIGIBLE FOR A PREFERENCE ALTHOUGH THE COMMUTER MAY HIMSELF
HAVE BEEN ENTITLED TO NO PREFERENCE.  THE GOVERNMENT SUGGESTS THAT THE
COMMUTER'S STATUS FOR OTHER PURPOSES IS NOT BEFORE THE COURT AND NEED
NOT BE DECIDED.  BRIEF FOR FEDERAL PARTIES 28.  BUT THE COURT SHOULD BE
RELUCTANT TO ACCEPT AN INVITATION TO MAKE AN AD HOC DECISION WITH
RESPECT TO ONE ASPECT OF A STATUTORY DEFINITION WHERE IT IS CLEAR THAT
THE DEFINITION IS A CENTRAL ONE WHICH CONGRESS HAS PROVIDED WITH THE
INTENT OF HAVING IT APPLIED GENERALLY. 

/5/  SEE THE RELEVANT TEXT OF GENERAL ORDER NO. 86, ANTE, AT 73 -
74, N. 25 

/6/  THE COURT'S OPINION SUGGESTS THAT GENERAL ORDER NO. 86 REMOVED
COMMUTERS FROM QUOTA RESTRICTIONS APPLICABLE TO NONIMMIGRANTS.  ANTE,
AT 77.  BUT MEXICAN AND CANADIAN COMMUTERS HAD NOT BEEN SUBJECT TO ANY
QUOTAS.  THE IMMIGRATION ACT OF 1924 IMPOSED NO QUOTAS ON
NONIMMIGRANTS, AND MEXICANS AND CANADIANS WERE NOT SUBJECT TO IMMIGRANT
QUOTAS.  43 STAT. 153.  THE GENERAL ORDER WAS DESIGNED PRIMARILY TO
PREVENT QUOTA ALIENS FROM ENTERING THIS COUNTRY THROUGH CANADA AND
MEXICO AS NONIMMIGRANTS.  LETTER FROM SECRETARY OF LABOR, DATED NOV.
26, 1928, IN APP. A. OF H.R. REP. NO. 2401, 70TH CONG., 2D SESS., 5 -
10 (1929).  INFORMAL DOCUMENTATION WAS MAINTAINED DESPITE THE
CLASSIFICATION OF THE COMMUTERS AS IMMIGRANTS BECAUSE THE IMMIGRATION
AUTHORITIES DID NOT VIEW CONGRESS AS INTENDING TO INTERFERE WITH THE
PRACTICE OF BORDER CROSSINGS BY COMMUTERS.  REPORT OF SELECT COMMISSION
ON WESTERN HEMISPHERE IMMIGRATION 101 - 102 (1968). 

/7/  THE SECRETARY OF LABOR HAS NOT ISSUED A CERTIFICATION ALLOWING
THE ENTRY OF ALIENS SEEKING EMPLOYMENT AS FARM LABORERS.  29 CFR
60.2(A)(2), 60.7 (SCHEDULE B). 

/8/  21(E), 79 STAT. 921. 

/9/  THE GOVERNMENT REFERS TO THE INCLUSION IN AN EARLY DRAFT OF A
HOUSE BILL, H.R. 5138, WHICH ULTIMATELY BECAME THE ALIEN REGISTRATION
ACT OF 1940, OF A PROVISION WHICH WOULD HAVE PROHIBITED ANY ALIEN FROM
ENTERING THIS COUNTRY FROM MEXICO OR CANADA FOR THE PURPOSES OF WORKING
OR SEEKING EMPLOYMENT.  HEARING ON H.R. 5138 BEFORE SUBCOMMITTEE NO. 3
OF THE HOUSE COMMITTEE ON THE JUDICIARY, 76TH CONG., 1ST SESS., SER. 
3, P. 3 (1939).  THE DELETION OF THAT PROVISION PRIOR TO THE REPORTING
OF THE BILL DOES NOT SIGNAL CONGRESSIONAL APPROVAL OF THE
ADMINISTRATIVE CLASSIFICATION OF COMMUTERS, BUT RATHER, AS WITH THE
ABSENCE OF QUOTAS RESTRICTING THE ENTRY OF MEXICANS AND CANADIANS, AN
UNWILLINGNESS TO RESTRICT SUCH ENTRY WHICH PERSISTED AT LEAST UNTIL
1952. 

/10/  S. REP. NO. 1515, 81ST CONG., 2D SESS., 535 - 536, 616
(1950). 

/11/  THE GOVERNMENT CONCEDES THAT THE SEASONAL COMMUTER PRACTICE
GREW AFTER THE BRACERO PROGRAM HAD LAPSED.  TR. OF ORAL ARG. 53; BRIEF
FOR FEDERAL PARTIES 75.  SEE ALSO GORDON, THE AMIABLE FICTION--ALIEN
COMMUTERS UNDER OUR IMMIGRATION LAWS, IN EMPLOYMENT OF "GREEN CARD"
ALIENS DURING LABOR DISPUTES, HEARINGS ON H.R. 12667 BEFORE THE SPECIAL
SUBCOMMITTEE ON LABOR OF THE HOUSE COMMITTEE ON EDUCATION AND LABOR,
91ST CONG., 1ST SESS., 181, 183 (1969).  THEREFORE, THERE IS EVEN LESS
REASON FOR BELIEVING THAT CONGRESS ACQUIESCED IN THE ADMINISTRATIVE
CLASSIFICATION OF SEASONAL COMMUTERS. 

/12/  THE MAJORITY CITES MASSACHUSETTS TRUSTEES V. UNITED STATES,
377 U.S. 235 (1964), AND UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459
(1915), IN SUPPORT OF ITS RATIONALE OF STATUTORY CONSTRUCTION.  ANTE,
AT 74.  A COMPARISON OF THE STATUTES AND FACTS OF THOSE CASES WITH THE
SITUATION HERE, HOWEVER, GRAPHICALLY REVEALS THE EXTENT OF THE
MAJORITY'S DEPARTURE FROM ACCEPTED CANONS OF CONSTRUCTION. 

IN MASSACHUSETTS TRUSTEES THE COURT WAS FACED WITH THE PROBLEM OF
HARMONIZING APPARENTLY INCONSISTENT SECTIONS OF THE SAME STATUTE
GOVERNING AN AGENCY'S AUTHORITY.  THE LITERAL LANGUAGE OF THE STATUTE
WAS FOUND INSUFFICIENTLY PRECISE TO DISPOSE OF THE QUESTION.  UNDER
THESE CIRCUMSTANCES, THE COURT LOOKED TO THE AGENCY'S PRACTICE, WHICH
COULD BE GIVEN "SOME WEIGHT"; BUT THE SUCCESSIVE EXTENSIONS BY CONGRESS
OF THE AGENCY'S AUTHORITY IN THE FACE OF THE AGENCY'S PRIOR PRACTICE
WAS NOT, EVEN THEN, TO BE CONTROLLING.  377 U.S., AT 241 - 245. 

IN MIDWEST OIL CO. THE PRESIDENTIAL POWER TO WITHDRAW PUBLIC LANDS
FROM PRIVATE ACQUISITION WHICH CONGRESS BY LEGISLATION HAD MADE FREE
AND OPEN TO OCCUPATION AND PURCHASE WAS FOUND IN THE HUNDREDS OF SUCH
WITHDRAWAL ORDERS, BEGINNING IN THE EARLY YEARS OF THE GOVERNMENT,
WHICH HAD NOT BEEN REPUDIATED BY CONGRESS.  IN ADDITION, THE EXECUTIVE
ORDER IN QUESTION WAS ISSUED SEVEN YEARS AFTER THE SECRETARY OF THE
INTERIOR, IN RESPONSE TO A RESOLUTION OF THE SENATE CALLING FOR
INFORMATION AS TO THE AUTHORITY FOR SUCH WITHDRAWALS, SENT TO THE
SENATE A REPORT WHICH CITED THE LONGSTANDING PRACTICE AND THE
EXECUTIVE'S CLAIM OF AUTHORITY.  CONGRESS TOOK NO ACTION TO REPUDIATE
THAT CLAIM.  LEGISLATION SOON AFTER THE ORDER IN QUESTION AUTHORIZED
SUCH WITHDRAWALS BY THE PRESIDENT PROSPECTIVELY, EXPRESSED NO INTENTION
ON THE PART OF CONGRESS TO REPUDIATE PAST WITHDRAWALS, AND LEFT THE
QUESTION OF THE VALIDITY OF PAST WITHDRAWALS TO THE COURTS.  236 U.S.
AT 469 - 471, 480 - 483.  NOTHING IN THIS CASE REMOTELY RESEMBLES THE
HISTORICAL RECORD UPON WHICH CONGRESSIONAL ACQUIESCENCE WAS PREMISED IN
MIDWEST OIL CO. 

MARK L. EVANS ARGUED THE CAUSE FOR PETITIONERS IN NO. 73 - 300 AND
RESPONDENTS IN NO. 73 - 480.  WITH HIM ON THE BRIEF WERE SOLICITOR
GENERAL BORK, ASSISTANT ATTORNEY GENERAL PETERSEN, DEPUTY SOLICITOR
GENERAL LAFONTANT, JEROME M. FEIT, AND CHARLES GORDON. 

BRUCE J. TERRIS ARGUED THE CAUSE FOR RESPONDENTS IN NO. 73 - 300 AND
PETITIONERS IN NO. 73 - 480.  WITH HIM ON THE BRIEF WERE JOHN W. KARR
AND JOSEPH ONEK. 

BRIEFS OF AMICI CURIAE WERE FILED BY J. ALBERT WOLL, LAURENCE GOLD,
AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS; BY RONALD H. BONAPARTE, JOHN A. JOANNES,
MILTON C. GELENIAN, THOMAS F. OLSON, AND ALLEN LAUTERBACH FOR THE
AMERICAN FARM BUREAU FEDERATION ET AL.; AND BY RICHARD D. MALTZMAN AND
PHILIP B. BASS FOR BUD ANTLE, INC.
..END :















ALLENBERG COTTON CO. V. PITTMAN, 419 U.S. 20 


       ALLENBERG COTTON CO., INC. V. PITTMAN

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI

        NO. 73 - 628.  ARGUED OCTOBER 17, 1974--DECIDED NOVEMBER
19,

      1974; 276 SO.2D 678, REVERSED AND REMANDED. 


    APPELLANT, A COTTON MERCHANT WITH ITS PRINCIPAL OFFICE IN

  MEMPHIS, TENN., IN JANUARY 1971 NEGOTIATED A "FORWARD" CONTRACT

  WITH APPELLEE, A MISSISSIPPI FARMER, FOR APPELLEE'S FORTHCOMING

  COTTON CROP.  THE AGREEMENT WAS MADE THROUGH A MISSISSIPPI BROKER

  WHO ARRANGED CONTRACTS FOR APPELLANT FOR COTTON TO BE RESOLD IN

  INTERSTATE AND FOREIGN MARKETS.  APPELLANT HAD CONTRACTED WITH

  MILLS OUTSIDE MISSISSIPPI FOR SALE OF MOST OF THE COTTON TO BE

  PURCHASED IN MISSISSIPPI, INCLUDING THAT TO BE GROWN BY APPELLEE

  UNDER THIS CONTRACT.  ALLEGING REFUSAL BY APPELLEE FARMER TO

  DELIVER THE COTTON, APPELLANT BROUGHT SUIT FOR INJUNCTIVE RELIEF

  AND DAMAGES.  THE SUPREME COURT OF MISSISSIPPI, REVERSING THE

  COURT BELOW, DISMISSED THE COMPLAINT, HOLDING THAT APPELLANT'S

  CONTRACTS WERE WHOLLY INTRASTATE, BEING COMPLETED UPON DELIVERY

  OF COTTON AT THE WAREHOUSE, AND UPHOLDING APPELLEE'S CONTENTION

  THAT THE MISSISSIPPI COURTS COULD NOT BE USED TO ENFORCE THE

  CONTRACT AS APPELLANT WAS DOING BUSINESS IN MISSISSIPPI WITHOUT

  THE REQUISITE CERTIFICATE.  APPELLEE MOVED TO DISMISS IN THIS

 COURT ON THE GROUND THAT THE STATE SUPREME COURT DID NOT PASS ON

  THE FEDERAL QUESTION.  HELD: 

     1.  A CERTIFICATE EXECUTED BY THE CHIEF JUSTICE OF THE STATE

  SUPREME COURT MAKES IT CLEAR THAT A FEDERAL QUESTION WAS RAISED

AND DECIDED BY THAT COURT ON THE VALIDITY OF A STATE STATUTE AS

  APPLIED TO THE FACTS OF THIS CASE UNDER THE COMMERCE CLAUSE OF

  THE FEDERAL CONSTITUTION, AND THIS COURT HAS JURISDICTION OVER

  THE APPEAL.  PP. 22 - 23. 

     2.  THE MISSISSIPPI SUPREME COURT'S REFUSAL TO ENFORCE THE

CONTRACT CONTRAVENED THE COMMERCE CLAUSE, SINCE THE COTTON IN THE

  INSTANT TRANSACTION, THOUGH TO BE DELIVERED TO APPELLANT AT A

  LOCAL WAREHOUSE, WAS TO BE THERE ONLY TEMPORARILY FOR SORTING AND

  CLASSIFICATION FOR OUT-OF-STATE SHIPMENT AND WAS THUS ALREADY IN

  THE STREAM OF INTERSTATE COMMERCE.  DAHNKE-WALKER MILLING CO. V.

  BONDURANT, 257 U.S. 282.  PP. 25 - 34. 

     DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN,

  AND POWELL, JJ., JOINED.  REHNQUIST, J., FILED A DISSENTING

  OPINION, POST, P. 34. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF
MISSISSIPPI, 276 SO.2D 678 (1973), WHICH HELD THAT UNDER THE APPLICABLE
MISSISSIPPI STATUTE /1/  APPELLANT MIGHT NOT RECOVER DAMAGES FOR BREACH
OF A CONTRACT TO DELIVER COTTON BECAUSE OF ITS FAILURE TO QUALIFY TO DO
BUSINESS IN THE STATE.  APPELLANT CLAIMS THAT THAT MISSISSIPPI STATUTE
AS APPLIED TO THE FACTS OF THIS CASE IS REPUGNANT TO THE COMMERCE
CLAUSE OF THE CONSTITUTION.  A MOTION TO DISMISS WAS MADE ON THE GROUND
THAT THE MISSISSIPPI SUPREME COURT DID NOT PASS ON THAT FEDERAL
QUESTION AND THAT SUCH QUESTION WAS NOT IN FACT RAISED.  WE ACCORDINGLY
POSTPONED THE QUESTION OF PROBABLE JURISDICTION TO A HEARING ON THE
MERITS, 415 U.S. 988 (1974). 

        I 

ON APPLICATION OF APPELLANT (APPELLEE BELOW), THE CHIEF JUSTICE OF
THE SUPREME COURT OF MISSISSIPPI EXECUTED A CERTIFICATE DATED AUGUST
17, 1973, STATING IN PART: 

"(THIS COURT . . . HEREBY CERTIFIES . . . THAT IN THIS APPEAL . . .
AND IN THE ARGUMENTS BOTH ORAL AND BY BRIEF MADE IN THIS COURT ON
BEHALF OF THE APPELLEE ON THE ORIGINAL APPEAL AND THE PETITION OF
APPELLEE FOR REHEARING AND BRIEF FILED IN SUPPORT THEREOF, IT WAS
INSISTED BY APPELLEE THAT UNDER THE FACTS OF THIS CASE, THE CONTRACT
SUED UPON BY THE APPELLEE WAS MADE IN 'INTERSTATE COMMERCE' AND THAT IT
WAS TRANSACTING BUSINESS IN INTERSTATE COMMERCE, AND THUS ENTITLED TO
PROTECTION AS SUCH UNDER THE APPLICABLE STATUTES OF MISSISSIPPI AND THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION; AND THAT IN ITS
DELIBERATION OF THIS CASE, THIS COURT BOTH ON THE ORIGINAL APPEAL AND
THE PETITION FOR REHEARING CONSIDERED THESE QUESTIONS OF INTERSTATE
COMMERCE; AND IT WAS THE JUDGMENT OF THIS COURT THAT SAID CONTRACT WAS
NOT MADE IN INTERSTATE COMMERCE, NOR THAT THE FACTS OF THE CASE SHOWED
APPELLEE TO BE TRANSACTING BUSINESS IN INTERSTATE COMMERCE WITHIN THE
MEANING OF THE LAWS OF MISSISSIPPI AND THAT MISSISSIPPI CODE 1942 ANN.
TO THE ALLENBERG COTTON COMPANY, INC., A TENNESSEE CORPORATION, TO BAR
IT FROM MAINTAINING SUIT IN THE COURTS OF THIS STATE WAS NOT REPUGNANT
TO THE COMMERCE CLAUSE OF THE UNITED STATES CONSTITUTION; AND IT WAS
NECESSARY TO THE COURT'S JUDGMENT IN SAID CASE TO DETERMINE SAID
QUESTIONS RAISED AS TO INTERSTATE COMMERCE, AND THAT SUCH QUESTIONS
WERE DETERMINED ADVERSELY TO THE POSITION OF APPELLEE." 

THE CHIEF JUSTICE, SPEAKING FOR THE COURT, MAKES IT CLEAR THAT A
FEDERAL QUESTION WAS RAISED AND DECIDED AND THAT THAT QUESTION WAS THE
VALIDITY OF THE STATE STATUTE AS APPLIED TO THE FACTS OF THIS CASE
UNDER THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  THAT
CERTIFICATE IS ADEQUATE UNDER OUR DECISIONS.  /2/  SO WE PROCEED TO THE
MERITS. 

        II 

APPELLANT IS A COTTON MERCHANT WITH ITS PRINCIPAL OFFICE IN MEMPHIS,
TENN.  IT HAD ARRANGED WITH ONE COVINGTON, A LOCAL COTTON BUYER IN
MARKS, MISS., "TO CONTRACT COTTON" TO BE PRODUCED THE FOLLOWING SEASON
BY FARMERS IN QUITMAN COUNTY, MISS.  THE FARMER, PITTMAN, IN THE
PRESENT CASE, MADE THE INITIAL APPROACH TO COVINGTON, SEEKING A
CONTRACT FOR HIS COTTON; IN OTHER INSTANCES COVINGTON MIGHT CONTACT THE
LOCAL FARMERS.  /3/  IN EITHER EVENT, COVINGTON WOULD OBTAIN ALL THE
INFORMATION NECESSARY FOR A PURCHASE CONTRACT AND TELEPHONE THE
INFORMATION TO APPELLANT IN MEMPHIS, WHERE A CONTRACT WOULD BE
PREPARED, SIGNED BY AN OFFICER OF APPELLANT, AND FORWARDED TO
COVINGTON.  THE LATTER WOULD THEN HAVE THE FARMER SIGN THE CONTRACT. 
FOR THESE SERVICES COVINGTON RECEIVED A COMMISSION ON EACH BALE OF
COTTON DELIVERED TO APPELLANT'S ACCOUNT AT THE LOCAL WAREHOUSE.  /4/
WHEN THE FARMERS DELIVERED THE COTTON, COVINGTON WOULD DRAW ON
APPELLANT AND PAY THEM THE AGREED PRICE. 

THE SUPREME COURT OF MISSISSIPPI HELD THAT APPELLANT'S TRANSACTIONS
WITH MISSISSIPPI FARMERS WERE WHOLLY INTRASTATE IN NATURE, BEING
COMPLETED UPON DELIVERY OF THE COTTON AT THE WAREHOUSE, AND THAT THE
FACT THAT APPELLANT MIGHT SUBSEQUENTLY SELL THE COTTON IN INTERSTATE
COMMERCE WAS IRRELEVANT TO THE FEDERAL QUESTION "AS THE MISSISSIPPI
TRANSACTION HAD BEEN COMPLETED AND THE COTTON THEN BELONGED EXCLUSIVELY
TO ALLENBERG, TO BE DISPOSED OF AS IT SAW FIT, AT ITS SOLE ELECTION AND
DISCRETION," 276 SO.2D, AT 681.  UNDER THE CONTRACT WHICH COVINGTON
NEGOTIATED WITH APPELLEE, PITTMAN, THE LATTER WAS TO PLANT, CULTIVATE,
AND HARVEST A CROP OF COTTON ON HIS LAND, DELIVER IT TO A NAMED COMPANY
IN MARKS, MISS., FOR GINNING, AND THEN TURN OVER THE GINNED COTTON TO
APPELLANT AT A LOCAL WAREHOUSE.  THE SUIT BROUGHT BY APPELLANT ALLEGED
A REFUSAL OF PITTMAN TO DELIVER THE COTTON AND ASKED FOR INJUNCTIVE
RELIEF AND DAMAGES.  ONE DEFENSE TENDERED BY PITTMAN WAS THAT APPELLANT
COULD NOT USE THE COURTS OF MISSISSIPPI TO ENFORCE ITS CONTRACTS, AS IT
WAS DOING BUSINESS IN THE STATE WITHOUT THE REQUISITE CERTIFICATE.  THE
SUPREME COURT OF MISSISSIPPI SUSTAINED THAT PLEA, REVERSING A JUDGMENT
IN FAVOR OF APPELLANT, AND DISMISSED THE COMPLAINT. 

APPELLANT'S ARRANGEMENTS WITH PITTMAN AND THE BROKER, COVINGTON, ARE
REPRESENTATIVE OF A COURSE OF DEALING WITH MANY FARMERS WHOSE COTTON,
ONCE SOLD TO APPELLANT, ENTERS A LONG INTERSTATE PIPELINE.  THAT
PIPELINE ULTIMATELY TERMINATES AT MILLS ACROSS THE COUNTRY OR INDEED
AROUND THE WORLD, AFTER A COMPLEX SORTING AND MATCHING PROCESS DESIGNED
TO PROVIDE EACH MILL WITH THE PARTICULAR GRADE OF COTTON WHICH THE MILL
IS EQUIPPED TO PROCESS. 

DUE TO DIFFERENCES IN SOIL, TIME OF PLANTING, HARVESTING, WEATHER,
AND THE LIKE, EACH BALE OF COTTON, EVEN THOUGH PRODUCED ON THE SAME
FARM, MAY HAVE A DIFFERENT QUALITY.  /5/  TRADERS OR MERCHANTS LIKE
APPELLANT, WITH THE ASSISTANCE OF THE DEPARTMENT OF AGRICULTURE, MUST
SAMPLE EACH BALE AND CLASSIFY IT ACCORDING TO GRADE, STAPLE LENGTH, AND
COLOR.  /6/  SIMILAR BALES, WHETHER FROM DIFFERENT FARMS OR EVEN FROM
DIFFERENT COLLECTION POINTS, ARE THEN GROUPED IN MULTIPLES OF 100 INTO
"EVEN-RUNNING LOTS" WHICH ARE UNIFORM AS TO ALL MEASURABLE
CHARACTERISTICS.  THIS GROUPING PROCESS TYPICALLY TAKES PLACE IN CARD
FILES IN THE MERCHANT'S OFFICE; WHEN ENOUGH BALES HAVE BEEN POOLED TO
MAKE AN EVEN-RUNNING LOT, THE ENTIRE LOT CAN BE TARGETED FOR A MILL
EQUIPPED TO HANDLE COTTON OF THAT PARTICULAR QUALITY, AND THE
INDIVIDUAL BALES IN THE LOT WILL THEN BE SHIPPED TO THE MILL FROM THEIR
RESPECTIVE COLLECTION POINTS.  /7/  IT IS TRUE THAT TITLE OFTEN
FORMALLY PASSES TO THE MERCHANT UPON DELIVERY OF THE COTTON AT THE
WAREHOUSE, AND THAT THE COTTON MAY REST AT THE WAREHOUSE PENDING
COMPLETION OF THE CLASSIFICATION AND GROUPING PROCESSES; BUT, AS THE
DESCRIPTION ABOVE INDICATES, THESE FLEETING EVENTS ARE AN INTEGRAL
FIRST STEP IN A VAST SYSTEM OF DISTRIBUTION OF COTTON IN INTERSTATE
COMMERCE. 

THE CONTRACT ENTERED INTO BETWEEN APPELLANT AND PITTMAN WAS A
STANDARD "FORWARD" CONTRACT, EXECUTED IN JANUARY 1971 AND COVERING THE
CROP TO BE GROWN THAT YEAR.  SUCH CONTRACTS HAVE BECOME COMMON IN THE
AMERICAN COTTON-MARKETING SYSTEM; THEY PROVIDE A READY WAY FOR THE
COTTON FARMER TO PROTECT HIMSELF AGAINST A PRICE DECLINE BY ENSURING
THAT HE WILL BE ABLE TO SELL HIS CROP AT A SUFFICIENT PRICE TO COVER
HIS EXPENSES.  /8/  THE MERCHANT WHO HAS CONTRACTED TO BUY THE COTTON
FROM THE FARMER MUST IN TURN PROTECT HIMSELF AGAINST MARKET
FLUCTUATIONS.  IN THIS CASE, APPELLANT HAD ENTERED INTO CONTRACTS FOR
SALE OF COTTON TO CUSTOMERS OUTSIDE MISSISSIPPI, /9/  IN QUANTITIES
APPROXIMATING THE EXPECTED YIELD OF THE PITTMAN CONTRACT AND
APPELLANT'S OTHER MISSISSIPPI CONTRACTS.  A RESALE CONTRACT OF THIS
SORT ENSURES THAT THE MERCHANT WILL BE ABLE TO COVER HIS OWN EXPENSES
AND RECOUP A SMALL PROFIT; ALTERNATIVELY, THE MERCHANT MAY PROTECT
HIMSELF BY "HEDGING," I.E., OFFSETTING HIS PURCHASES WITH A SALE OF
FUTURES CONTRACTS ON THE COTTON EXCHANGE.  /10/  THE STABILITY OF THE
POSITION HE HAS CONSTRUCTED FOR HIMSELF, HOWEVER, CLEARLY DEPENDS ON
THE INTEGRITY AND ENFORCEABILITY OF HIS CONTRACTS FOR PURCHASE AND
RESALE.  /11/ 

A RECENT HOUSE REPORT ON THE FUNCTIONING OF THE COMMODITY EXCHANGES
IN CONNECTION WITH THE MARKETING OF AGRICULTURAL PRODUCTS SAID: 

   "THE COMMODITY FUTURES MARKETS ARE A VERY IMPORTANT PART OF OUR

  MARKETING SYSTEM.  PRODUCERS, PROCESSORS, AND MERCHANDISERS OF

  COMMODITIES HEDGE THE PRICES AT WHICH THEY BUY OR SELL ON A

  PARTICULAR DAY.  WHEN THE LOCAL ELEVATOR BUYS GRAIN FROM A FARMER

  HE SELLS THE SAME QUANTITY ON THE FUTURES MARKET DELIVERABLE AT

  ABOUT THE SAME TIME HE ANTICIPATES SALE OF THE CASH GRAIN HE HAS

  PURCHASED.  WHEN THE ACTUAL SALE IS MADE, HE 'LIFTS'  HIS HEDGE

  BY BUYING THE SAME QUANTITY ON THE FUTURES MARKET IN THE SAME

FUTURES MONTH HE PREVIOUSLY SOLD IN.  IF THE PRICE OF GRAIN ON

  THE CASH MARKET FLUCTUATES EITHER UP OR DOWN, THE GAIN OR LOSS

  SHOULD BE APPROXIMATELY OFFSET BY THE HEDGED POSITION. 

        .          .          .          . 

   "(IN THIS SITUATION IF THE MARKET PRICE OF THE CASH COMMODITY

  DROPS 15 CENTS PER BUSHEL BETWEEN THE TIME THE ELEVATOR OPERATOR

  PURCHASES THE GRAIN AND THE TIME HE RESELLS IT 6 MONTHS LATER, HE

  WOULD INCUR A LOSS OF $1,500 ON EACH 10,000 BUSHELS.  IF,

  HOWEVER, AT THE TIME HE PURCHASED THE GRAIN FROM THE FARMER HE

  HAD SOLD THE SAME AMOUNT OF GRAIN ON THE FUTURES MARKET IN A

  CONTRACT WHICH MATURED 6 MONTHS LATER, THE FUTURES PRICE SHOULD

  ALSO DECREASE A SIMILAR 15 CENTS PER BUSHEL AND THE ELEVATOR

  OPERATOR WOULD PROFIT $1,500 ON EACH 10,000 BUSHELS HE SOLD ON

THE FUTURES MARKET.  THE NET EFFECT, OF COURSE, OF THESE

OFFSETTING PURCHASES AND SALES WOULD BE TO GUARD THE ELEVATOR

  OPERATOR AGAINST LOSS, THEREBY PERMITTING HIM TO CONTINUE IN

  BUSINESS WITHOUT REGARD TO PRICE FLUCTUATION, PROVIDING THE

  FUTURES MARKET OPERATES IN THE NORMAL HISTORICAL MANNER. 

      "SUCH USE OF THE FUTURES MARKET BY A PRODUCER, BUYER, OR
SELLER

  OF THE COMMODITY TAKES THE GAMBLE OF COMMODITY PRICE FLUCTUATION

  OUT OF HIS OPERATION FOR HIM AND ENABLES HIM TO LOCK IN A

  RELATIVELY SMALL MARGIN OF PROFIT.  THIS SYSTEM HAS WORKED WELL

  MOST OF THE TIME, BUT WHENEVER THE SUPPLIES OF COMMODITIES ARE

  SHORT OR THE NUMBER OF SPECULATORS BECOMES EXCESSIVE, THERE EXIST

  OPPORTUNITIES FOR MANIPULATIONS AND DISTORTIONS IN THE MARKETING

  SYSTEM TO SUCH A GREAT EXTENT THAT THE MARKET NO LONGER REFLECTS

  SUPPLY AND DEMAND, AND DURING PART OF THE MARKETING SEASON,

  PRICES CAN EITHER BE ARTIFICIALLY RAISED OR LOWERED. 

     "IN THE PAST YEAR, FLUCTUATIONS IN THE MARKET HAVE BEEN SO
WIDE

  AND ERRATIC AS TO INDICATE THE POSSIBILITY OF PRICE MANIPULATION

  AND SQUEEZING.  BUSINESSMEN WHO HANDLE COMMODITIES ON SOME

  OCCASIONS HAVE BEEN UNABLE TO BUY BACK CONTRACTS THE DAY THEY

  SELL THE COMMODITY AND MANY OF THEM HAVE FOUND THAT THE

  COMMODITIES MARKETS SUCH AS THE CHICAGO BOARD OF TRADE AND THE

  CHICAGO MERCANTILE EXCHANGE DO NOT ALWAYS PROVIDE A DEPENDABLE

  PLACE TO HEDGE THEIR BUSINESS DEALS.  WITH THE COMPROMISING OF

  THIS KIND OF PRICE INSURANCE, MANY BUSINESSMEN WHO HANDLE

  COMMODITIES HAVE FELT COMPELLED TO SUBSTANTIALLY INCREASE THE

  AMOUNT THEY CHARGE FOR THEIR PART IN THE MARKETING SYSTEM AND

  SOME HAVE LOST VAST SUMS OF MONEY.  SOME NOW FEEL COMPELLED TO

  TRIPLE OR QUADRUPLE THE NORMAL MARGIN TO COVER NEW RISKS OR TO

  ACT ONLY ON A COMMISSION BASIS. 

  "CONSUMERS ARE ALSO GREATLY AFFECTED BY ANY BREAKDOWN IN OUR

  MARKETING SYSTEM.  WHEN THE FUTURES MARKETS ARE MANIPULATED OR

  BECOME UNDEPENDABLE, WIDER MARGINS REQUIRED AT EACH LEVEL ADD TO

  THE PRICE OF THE FINAL PRODUCT.  HISTORICALLY, ERRATIC SWINGS IN

  PRICES RESULT IN RETAIL PRICES GOING UP MORE THAN THEY EVER COME

  BACK DOWN.  SO CONSUMERS ALSO HAVE A GREAT STAKE IN PREVENTING

  EXCESSIVE SPECULATION OR MANIPULATION FROM CAUSING WIDE

  FLUCTUATIONS IN COMMODITY PRICES."  H.R. REP. NO. 93 - 963, PP. 2

  - 4 (1974). 

WHILE THAT DISCUSSION COVERS GRAIN, THERE IS NO ESSENTIAL
DIFFERENCE, RELEVANT HERE, WHEN IT COMES TO COTTON. 

WE DEAL HERE WITH A SPECIES OF CONTROL OVER AN INTRICATE INTERSTATE
MARKETING MECHANISM.  THE COTTON EXCHANGE, LIKE THE LIVESTOCK-MARKETING
REGIME INVOLVED IN SWIFT & CO. V. UNITED STATES, 196 U.S. 375 (1905),
AND IN STAFFORD V. WALLACE, 258 U.S. 495 (1922), HAS FEDERAL PROTECTION
UNDER THE COMMERCE CLAUSE.  IN DAHNKE-WALKER MILLING CO. V. BONDURANT,
257 U.S. 282 (1921), WHEAT RAISED IN KENTUCKY WAS PURCHASED BY A MILLER
IN TENNESSEE, PAYMENT AND DELIVERY TO A COMMON CARRIER BEING MADE IN
KENTUCKY.  THERE, AS HERE, A SUIT AGAINST THE FARMER IN A KENTUCKY
COURT WAS DEFENDED ON THE GROUNDS THAT THE BUYER HAD NOT QUALIFIED TO
DO BUSINESS IN KENTUCKY AND THAT, THEREFORE, THE CONTRACT WAS
UNENFORCEABLE.  THE COURT HELD THAT THE KENTUCKY STATUTE COULD NOT BE
APPLIED TO DEFEAT THIS TRANSACTION WHICH, THOUGH HAVING INTRASTATE
ASPECTS, WAS IN FACT "A PART OF INTERSTATE COMMERCE,"  ID., AT 292. 
THE SAME OBSERVATION IS PERTINENT HERE.  DELIVERY OF THE COTTON TO A
WAREHOUSE, TAKEN IN ISOLATION, IS AN INTRASTATE TRANSACTION.  BUT THAT
DELIVERY IS ALSO ESSENTIAL FOR THE COMPLETION OF THE INTERSTATE
TRANSACTION, FOR SORTING AND CLASSIFICATION IN THE WAREHOUSE ARE
ESSENTIAL BEFORE THE PRECISE INTERSTATE DESTINATION OF THE COTTON,
WHETHER IN THIS COUNTRY OR ABROAD, IS DETERMINED.  THE DETERMINATION OF
THE PRECISE MARKET CANNOT INDEED BE MADE UNTIL THE CLASSIFICATION IS
MADE.  THE COTTON IN THIS MISSISSIPPI SALE, LIKE THE WHEAT INVOLVED IN
CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1, 33 (1923), THOUGH
TEMPORARILY IN A WAREHOUSE, WAS STILL IN THE STREAM OF INTERSTATE
COMMERCE.  AS THE COURT STATED IN THE OLSEN CASE: 

"THE FACT THAT THE GRAIN SHIPPED FROM THE WEST AND TAKEN FROM THE
CARS MAY HAVE BEEN STORED IN WAREHOUSES AND MIXED WITH OTHER GRAIN, SO
THAT THE OWNER RECEIVES OTHER GRAIN WHEN PRESENTING HIS RECEIPT FOR
CONTINUING THE SHIPMENT, DOES NOT TAKE AWAY FROM THE INTERSTATE
CHARACTER OF THE THROUGH SHIPMENT ANY MORE THAN A MIXTURE OF THE OIL OR
GAS IN THE PIPE LINES OF THE OIL AND GAS COMPANIES IN WEST VIRGINIA,
WITH THE RIGHT IN THE OWNERS TO WITHDRAW THEIR SHARES BEFORE CROSSING
STATE LINES, PREVENT THE GREAT BULK OF THE OIL AND GAS WHICH DID
THEREAFTER CROSS STATE LINES FROM BEING A STREAM OR CURRENT OF
INTERSTATE COMMERCE."  ID., AT 33 - 34. 

THE COURT HELD IN SHAFER V. FARMERS GRAIN CO., 268 U.S. 189 (1925),
THAT A PERVASIVE STATE REGULATORY SCHEME GOVERNING THE PURCHASE OF
WHEAT FOR INTERSTATE SHIPMENT WAS NOT PERMISSIBLE, SINCE THE "(BUYING
FOR SHIPMENT" WAS "AS MUCH A PART OF (INTERSTATE COMMERCE) AS THE
SHIPPING."  ID., AT 198.  AND IT ADDED: 

     "WHEAT--BOTH WITH AND WITHOUT DOCKAGE--IS A LEGITIMATE ARTICLE

  OF COMMERCE AND THE SUBJECT OF DEALINGS THAT ARE NATION-WIDE. 

  THE RIGHT TO BUY IT FOR SHIPMENT, AND TO SHIP IT, IN INTERSTATE

  COMMERCE IS NOT A PRIVILEGE DERIVED FROM STATE LAWS AND WHICH

  THEY MAY FETTER WITH CONDITIONS, BUT IS A COMMON RIGHT, THE

  REGULATION OF WHICH IS COMMITTED TO CONGRESS AND DENIED TO THE

STATES BY THE COMMERCE CLAUSE OF THE CONSTITUTION."  ID., AT 198

  - 199 (FOOTNOTE OMITTED). 

IN HOOD & SONS V. DUMOND, 336 U.S. 525 (1949), WE HELD THAT A STATE
MIGHT NOT DENY A LICENSE TO A MILK DISTRIBUTOR SERVING THE INTERSTATE
MARKET ON THE GROUND THAT THE NEW FACILITIES WOULD REDUCE THE SUPPLY OF
MILK FOR LOCAL MARKETS.  IN EXPRESSING THE PHILOSOPHY OF THE COMMERCE
CLAUSE TO FEDERALIZE THE REGULATION OF INTERSTATE AND FOREIGN COMMERCE,
WE SAID: 

     "THE COMMERCE CLAUSE IS ONE OF THE MOST PROLIFIC SOURCES OF

  NATIONAL POWER AND AN EQUALLY PROLIFIC SOURCE OF CONFLICT WITH

  LEGISLATION OF THE STATE.  WHILE THE CONSTITUTION VESTS IN

  CONGRESS THE POWER TO REGULATE COMMERCE AMONG THE STATES, IT DOES

  NOT SAY WHAT THE STATES MAY OR MAY NOT DO IN THE ABSENCE OF

CONGRESSIONAL ACTION, NOR HOW TO DRAW THE LINE BETWEEN WHAT IS

  AND WHAT IS NOT COMMERCE AMONG THE STATES.  PERHAPS EVEN MORE

  THAN BY INTERPRETATION OF ITS WRITTEN WORD, THIS COURT HAS

  ADVANCED THE SOLIDARITY AND PROSPERITY OF THIS NATION BY THE

  MEANING IT HAS GIVEN TO THESE GREAT SILENCES OF THE

  CONSTITUTION."  ID., AT 534 - 535. 

AND WE ADDED: 

     "OUR SYSTEM, FOSTERED BY THE COMMERCE CLAUSE, IS THAT EVERY

  FARMER AND EVERY CRAFTSMAN SHALL BE ENCOURAGED TO PRODUCE BY THE

  CERTAINTY THAT HE WILL HAVE FREE ACCESS TO EVERY MARKET IN THE

  NATION, THAT NO HOME EMBARGOES WILL WITHHOLD HIS EXPORTS, AND NO

  FOREIGN STATE WILL BY CUSTOMS DUTIES OR REGULATIONS EXCLUDE

  THEM.  LIKEWISE, EVERY CONSUMER MAY LOOK TO THE FREE COMPETITION

  FROM EVERY PRODUCING AREA IN THE NATION TO PROTECT HIM FROM

EXPLOITATION BY ANY.  SUCH WAS THE VISION OF THE FOUNDERS; SUCH

  HAS BEEN THE DOCTRINE OF THIS COURT WHICH HAS GIVEN IT REALITY." 

  ID., AT 539. 

MUCH RELIANCE IS PLACED ON ELI LILLY & CO. V. SAV-ON-DRUGS, INC.,
366 U.S. 276 (1961), FOR SUSTAINING MISSISSIPPI'S ACTION.  THE CASE IS
NOT IN POINT.  THERE THE COURT FOUND THAT THE FOREIGN CORPORATION HAD
AN OFFICE AND SALESMEN IN NEW JERSEY SELLING DRUGS INTRASTATE.  SINCE
IT WAS ENGAGED IN AN INTRASTATE BUSINESS IT COULD BE REQUIRED TO OBTAIN
A LICENSE EVEN THOUGH IT ALSO DID AN INTERSTATE BUSINESS. 

RELIANCE IS ALSO PLACED ON UNION BROKERAGE CO. V. JENSEN, 322 U.S.
202 (1944), WHICH IS LIKEWISE NOT IN POINT.  IT IS TRUE THAT THE
CUSTOMHOUSE BROKER IN THAT CASE WAS IN THE BUSINESS OF DEALING WITH
GOODS IN INTERSTATE TRANSIT.  NEVERTHELESS, WE EXPRESSLY NOTED THAT
"(UNION'S) ACTIVITIES ARE NOT CONFINED TO ITS SERVICES AT THE PORT OF
ENTRY.  IT HAS LOCALIZED ITS BUSINESS, AND TO FUNCTION EFFECTIVELY IT
MUST HAVE A WIDE VARIETY OF DEALINGS WITH THE PEOPLE IN THE
COMMUNITY."  ID., AT 210.  AS IN ELI LILLY, THIS ELEMENT OF
LOCALIZATION WAS HELD TO BE DISTINGUISHABLE FROM CASES SUCH AS DAHNKE
WALKER IN WHICH A FOREIGN CORPORATION ENTERS THE STATE "TO CONTRIBUTE
TO OR TO CONCLUDE A UNITARY INTERSTATE TRANSACTION."  ID., AT 211.  IN
THIS RESPECT WE HAVE FOUND APPELLANT'S TRANSACTIONS, WHEN VIEWED
AGAINST THE BACKGROUND OF CUSTOMARY TRADE PRACTICES IN THE COTTON
MARKET, TO BE INDISTINGUISHABLE FROM THE ACTIVITIES IN DAHNKE-WALKER IN
ANY SIGNIFICANT REGARD. 

THE MISSISSIPPI SUPREME COURT, AS NOTED, RULED THAT APPELLANT WAS
DOING BUSINESS IN MISSISSIPPI.  APPELLANT, HOWEVER, HAS NO OFFICE IN
MISSISSIPPI, NOR DOES IT OWN OR OPERATE A WAREHOUSE THERE.  IT HAS NO
EMPLOYEES SOLICITING BUSINESS IN MISSISSIPPI OR OTHERWISE OPERATING
THERE ON A REGULAR BASIS; /12/  ITS CONTRACTS ARE ARRANGED THROUGH AN
INDEPENDENT BROKER, WHOSE COMMISSION IS PAID EITHER BY APPELLANT OR BY
THE FARMER HIMSELF AND WHO HAS NO AUTHORITY TO ENTER INTO CONTRACTS ON
BEHALF OF APPELLANT.  /13/  THESE FACTS ARE IN SHARP CONTRAST TO THE
SITUATION IN ELI LILLY, WHERE LILLY OPERATED A NEW JERSEY OFFICE WITH
18 SALARIED EMPLOYEES WHOSE JOB WAS TO PROMOTE USE OF LILLY'S
PRODUCTS.  366 U.S., AT 279 - 281.  THERE IS NO INDICATION THAT THE
COTTON WHICH MAKES UP APPELLANT'S "PERPETUAL INVENTORY" IN MISSISSIPPI
IS ANYTHING OTHER THAN WHAT APPELLANT HAS CLAIMED IT TO BE, NAMELY,
COTTON WHICH IS AWAITING NECESSARY SORTING AND CLASSIFICATION AS A
PREREQUISITE TO ITS SHIPMENT IN INTERSTATE COMMERCE. 

IN SHORT, APPELLANT'S CONTACTS WITH MISSISSIPPI DO NOT EXHIBIT THE
SORT OF LOCALIZATION OR INTRASTATE CHARACTER WHICH WE HAVE REQUIRED IN
SITUATIONS WHERE A STATE SEEKS TO REQUIRE A FOREIGN CORPORATION TO
QUALIFY TO DO BUSINESS.  WHETHER THERE WERE LOCAL TAX INCIDENTS OF
THOSE CONTACTS WHICH COULD BE REACHED IS A DIFFERENT QUESTION ON WHICH
WE EXPRESS NO OPINION.  WHETHER THE COURSE OF DEALING WOULD SUBJECT
APPELLANT TO SUITS IN MISSISSIPPI IS LIKEWISE A DIFFERENT QUESTION ON
WHICH WE EXPRESS NO VIEW.  WE HOLD ONLY THAT MISSISSIPPI'S REFUSAL TO
HONOR AND ENFORCE CONTRACTS MADE FOR INTERSTATE OR FOREIGN COMMERCE IS
REPUGNANT TO THE COMMERCE CLAUSE. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

   SO ORDERED. 

/1/MISSISSIPPI CODE ANN. 79 - 3 - 247 (1972), FORMERLY MISS.  CODE
ANN. 5309 - 239 (1942), PROVIDES IN PART: 

"NO FOREIGN CORPORATION TRANSACTING BUSINESS IN THIS STATE WITHOUT A
CERTIFICATE OF AUTHORITY SHALL BE PERMITTED TO MAINTAIN ANY ACTION,
SUIT OR PROCEEDING IN ANY COURT OF THIS STATE.  NOR SHALL ANY ACTION,
SUIT OR PROCEEDING BE MAINTAINED IN ANY COURT OF THIS STATE BY ANY
SUCCESSOR OR ASSIGNEE OF SUCH CORPORATION ON ANY RIGHT, CLAIM OR DEMAND
ARISING OUT OF THE TRANSACTION OF BUSINESS BY SUCH CORPORATION IN THIS
STATE." 

/2/  SEE INTERNATIONAL STEEL & IRON CO. V. NATIONAL SURETY CO., 297
U.S. 657, 661 - 662 (1936).  AS STATED IN HERB V. PITCAIRN, 324 U.S.
117, 127 (1945): 

"THE PRACTICE HAS BECOME COMMON BY WHICH SOME STATE COURTS, SUCH AS
THE NEW YORK COURT OF APPEALS, PROVIDE COUNSEL ON MOTION WITH A
CERTIFICATE OF THE COURT OR OF THE CHIEF JUDGE THAT A STATED FEDERAL
QUESTION WAS PRESENTED AND NECESSARILY PASSED UPON IF SUCH WAS THE
CASE.  SEE, E.G., CASES CITED IN ROBERTSON AND KIRKHAM, JURISDICTION OF
THE SUPREME COURT, 75." 

IN WHITNEY V. CALIFORNIA, 274 U.S. 357, 360 - 362 (1927), WHILE THE
RECORD DID NOT SHOW THAT THE PARTY RAISED OR THAT THE STATE COURT
CONSIDERED "ANY FEDERAL QUESTION WHATEVER, "A SUPPLEMENTAL ORDER
ENTERED BY THE STATE COURT AFTER THE CASE HAD REACHED THIS COURT,
SETTING FORTH THE FEDERAL QUESTION RAISED AND DECIDED BY THE STATE
COURT, WAS GIVEN THE SAME EFFECT "AS WOULD BE DONE IF THE STATEMENT HAD
BEEN MADE IN THE OPINION OF THAT COURT WHEN DELIVERED." 

IN CASES WHERE THE CERTIFICATE (HONEYMAN V. HANAN, 300 U.S. 14
(1937)) OR SUPPLEMENTAL OPINION BY ONE MEMBER OF THE STATE COURT
(CHARLESTON FEDERAL SAVINGS & LOAN ASSN. V. ALDERSON, 324 U.S. 182
(1945)) HAS BEEN HELD TO BE INSUFFICIENT, THERE WERE LINGERING DOUBTS
AS TO WHETHER THE PRECISE FEDERAL QUESTION WAS NECESSARILY DECIDED. 
HERE WE HAVE NO REMAINING DOUBTS. 

/3/  THE LATTER PRACTICE SEEMS TO HAVE BEEN THE MORE USUAL ONE. 
(APP. 54, 102 - 105.) 

/4/  THE COMMISSION WAS PAID IN SOME INSTANCES BY APPELLANT, IN
OTHER INSTANCES BY THE INDIVIDUAL FARMER.  (ID., AT 53, 68.) 

/5/  A. B. COX, COTTON--DEMAND, SUPPLY, MERCHANDISING 4 - 5 (1953);
A. GARSIDE, COTTON GOES TO MARKET 66 - 67 (1935). 

/6/  FOR A MORE DETAILED DESCRIPTION OF THE CLASSIFICATION PROCESS,
SEE COX, SUPRA, N. 5, AT 131 - 147; GARSIDE, SUPRA, N. 5, AT 46 - 85. 

/7/  SEE COX, SUPRA, N. 5, AT 4 - 5, 233 - 236.  VIRTUALLY ALL
COTTON GROWN IN MISSISSIPPI IS SHIPPED OUT OF STATE, SINCE THERE IS NO
SIGNIFICANT MILLING ACTIVITY IN MISSISSIPPI.  U.S. DEPT OF AGRICULTURE
(USDA), STATISTICAL BULLETIN NO. 417--STATISTICS ON COTTON AND RELATED
DATA, 1930 - 1967, PP. 58, 77 (SUPP. 1972).     /8/  SEE CONE MILLS
CORP. V. HURDLE, 369 F.SUPP.  426, 430 (ND MISS.  1974); COX, SUPRA, N.
5, AT 10.  GOVERNMENT FIGURES SHOWED 32% OF THE 1972 CROP AND AT LEAST
45% OF THE 1973 CROP BEING "FORWARD" CONTRACTED.  USDA, AUGUST 1973
CROP PRODUCTION A - 6; USDA, COTTON SITUATION (CS - 265) P. 6 (APR.
1974).  OF COURSE, THERE IS ALWAYS THE POSSIBILITY THAT THE PRICE WILL
INCREASE RATHER THAN DECREASE; SUCH IN FACT WAS THE CASE DURING 1971. 
UNDER THESE CIRCUMSTANCES, THE FORWARD CONTRACT BECOMES RELATIVELY
UNPROFITABLE, SINCE THE FARMER IS OBLIGATED TO DELIVER HIS COTTON FOR A
LOWER PRICE THAN IT WOULD BRING ON THE SPOT MARKET.  THIS SITUATION MAY
GENERATE A STRONG ECONOMIC INCENTIVE FOR HIM TO BREACH HIS CONTRACT AND
SELL THE COTTON ELSEWHERE. 

/9/  APP. 79, 96.  CF. N. 7, SUPRA. 

/10/  THE NEW YORK COTTON EXCHANGE IS A DESIGNATED CONTRACT MARKET
UNDER THE COMMODITY EXCHANGE ACT, 42 STAT. 998, 49 STAT. 1491, 7 U.S.C.
1 ET SEQ. FOR A MORE DETAILED DISCUSSION OF THE HEDGING MECHANISM, SEE
COX, SUPRA, N. 5, AT 303 - 315; GARSIDE, SUPRA, N. 5, AT 206 - 226, 377
- 382; VOLKART BROS., INC. V. FREEMAN, 311 F.2D 52, 54 - 56 (CA5 1962);
AND SEE THE DISCUSSION OF THE WHEAT FUTURES MARKET QUOTED IN THE TEXT,
THIS PAGE AND 28 - 29. 

/11/  THE MERCHANT'S ABILITY TO SECURE FINANCING WILL ALSO DEPEND ON
THE EXTENT TO WHICH BANKS AND OTHER SOURCES OF CREDIT PERCEIVE THESE
CONTRACTS AS BEING RELIABLE.  IN SOME SITUATIONS, UP TO 90% OF THE COST
OF THE RAW COTTON MAY BE FINANCED BY BORROWING AGAINST FUTURES
CONTRACTS AND WAREHOUSE RECEIPTS AS COLLATERAL, SINCE A VIABLE HEDGING
SYSTEM DRASTICALLY REDUCES THE RISK TO BOTH MERCHANTS AND LENDERS.  SEE
COX, SUPRA, N. 5, AT 181. 

/12/  ONE OF APPELLANT'S MEMPHIS EMPLOYEES, JERRY HILL, CAME TO
MISSISSIPPI ON TWO OR THREE OCCASIONS TO DELIVER CONTRACTS TO THE
BROKER, COVINGTON.  THE MORE USUAL PRACTICE, HOWEVER, APPEARS TO HAVE
BEEN FOR THE CONTRACTS TO BE MAILED.  (APP. 56 - 57, 66 - 67, 72 -
76.) 

/13/  ID., AT 60 - 61, 65 - 66, 106 - 107.  SEE ALSO N. 4, SUPRA. 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE QUESTION IN THIS CASE IS WHETHER MISSISSIPPI MAY REQUIRE
APPELLANT, A TENNESSEE CORPORATION, TO QUALIFY AS A FOREIGN CORPORATION
UNDER MISSISSIPPI LAW BEFORE IT MAY SUE IN THE COURTS OF MISSISSIPPI TO
ENFORCE A CONTRACT.  THE SUPREME COURT OF MISSISSIPPI SUMMARIZED THE
FACTS OF THE TRANSACTION, WHICH IT STATED WERE "WITHOUT SUBSTANTIAL
DISPUTE," AS FOLLOWS: 

   "IT IS APPARENT THAT THESE TRANSACTIONS OF ALLENBERG IN EACH

  CASE, INCLUDING THAT WITH PITTMAN, TOOK PLACE WHOLLY IN

  MISSISSIPPI.  THE CONTRACT WAS NEGOTIATED IN MISSISSIPPI,

  EXECUTED IN MISSISSIPPI, THE COTTON WAS PRODUCED IN MISSISSIPPI,

  AND PAYMENT WAS MADE TO THE PRODUCER IN MISSISSIPPI.  ALL

  INTEREST OF THE PRODUCER IN THE COTTON TERMINATED FINALLY UPON

  DELIVERY TO ALLENBERG AT THE WAREHOUSE IN MARKS.  THE FACT THAT

  AFTERWARD ALLENBERG MIGHT OR MIGHT NOT SELL THE COTTON IN

  INTERSTATE COMMERCE IS IRRELEVANT TO THE ISSUE HERE, AS THE

  MISSISSIPPI TRANSACTION HAD BEEN COMPLETED AND THE COTTON THEN

  BELONGED EXCLUSIVELY TO ALLENBERG.  . . ."  276 SO.2D 678, 681

  (1973). 

THE SUPREME COURT OF MISSISSIPPI MIGHT HAVE ADDED THAT THROUGH AN
EXCLUSIVE AGENT, WHO WAS A MISSISSIPPI RESIDENT, ALLENBERG ENTERED INTO
OVER 20 SIMILAR CONTRACTS IN 1971 WITH FARMERS IN QUITMAN COUNTY ALONE,
CONTRACTS COVERING COTTON PRODUCTION FROM OVER 9,000 ACRES IN THIS ONE
COUNTY.  ALLENBERG'S TOTAL 1971 PURCHASES OF COTTON GROWN IN
MISSISSIPPI UNDER SUBSTANTIALLY IDENTICAL CONTRACTS EXCEEDED 25,000
BALES.  WHEN COTTON GROWN UNDER THESE CONTRACTS ARRIVED AT MISSISSIPPI
WAREHOUSES DESIGNATED BY ALLENBERG THE COTTON WAS COMPRESSED AND SORTED
BY WAREHOUSEMEN ACTING AT ALLENBERG'S DIRECTION.  IT WAS THEN STORED AT
THE WAREHOUSE AS A PART OF A PERPETUAL REVOLVING INVENTORY OF COTTON,
MAINTAINED BY ALLENBERG AT COTTON CONCENTRATION POINTS THROUGHOUT
MISSISSIPPI TO AWAIT FUTURE SHIPPING ORDERS.  /1/ 

FOR REASONS WHICH ARE NOT ENTIRELY CLEAR TO ME, THE COURT HOLDS THAT
MISSISSIPPI MAY NOT REQUIRE ALLENBERG TO QUALIFY AS A FOREIGN
CORPORATION AS A CONDITION OF USING MISSISSIPPI COURTS TO ENFORCE ITS
CONTRACT WITH APPELLEE PITTMAN.  /2/ 

THE COURT SAYS THAT "(DELIVERY OF THE COTTON TO A WAREHOUSE, TAKEN
IN ISOLATION, IS AN INTRASTATE TRANSACTION.  BUT THAT DELIVERY IS ALSO
ESSENTIAL FOR THE COMPLETION OF THE INTERSTATE TRANSACTION, FOR SORTING
AND CLASSIFICATION IN THE WAREHOUSE ARE ESSENTIAL BEFORE THE PRECISE
INTERSTATE DESTINATION OF THE COTTON, WHETHER IN THIS COUNTRY OR
ABROAD, IS DETERMINED."  ANTE, AT 30.  YET IN PARKER V. BROWN, 317 U.S.
341, 361 (1943), THIS COURT STATED THAT "NO CASE HAS GONE SO FAR AS TO
HOLD THAT A STATE COULD NOT LICENSE OR OTHERWISE REGULATE THE SALE OF
ARTICLES WITHIN THE STATE BECAUSE THE BUYER, AFTER PROCESSING AND
PACKING THEM, WILL, IN THE NORMAL COURSE OF BUSINESS, SELL AND SHIP
THEM IN INTERSTATE COMMERCE."  BUT PUTTING ASIDE SUCH UNCERTAINTIES
ENGENDERED BY THE COURT'S LANGUAGE, ITS HOLDING SEEMS TO ME QUITE
INCONSISTENT WITH OUR PREVIOUS CASES APPLYING THE COMMERCE CLAUSE TO
THIS KIND OF FACTUAL SITUATION. 

THE MOST RECENT CASE FROM THIS COURT DEALING WITH THIS QUESTION IS
ELI LILLY & CO. V. SAV-ON-DRUGS, 366 U.S. 276 (1961), WHERE THE COURT
SAID: 

"(IF LILLY IS ENGAGED IN INTRASTATE AS WELL AS INTERSTATE ASPECTS OF
THE NEW JERSEY DRUG BUSINESS, THE STATE CAN REQUIRE IT TO GET A
CERTIFICATE OF AUTHORITY TO DO BUSINESS.  IN SUCH A SITUATION, LILLY
COULD NOT ESCAPE STATE REGULATION MERELY BECAUSE IT IS ALSO ENGAGED IN
INTERSTATE COMMERCE."  ID., AT 279 (FOOTNOTE OMITTED). 

IN LILLY, THE FACTS SUPPORTING A "CORPORATE PRESENCE" IN NEW JERSEY
WERE PROBABLY STRONGER THAN THE FACTS SUPPORTING A CONCLUSION THAT
ALLENBERG WAS "DOING BUSINESS" IN MISSISSIPPI IN THIS CASE.  BUT IT IS
OF SOME IMPORTANCE TO NOTE THAT THE INTRASTATE CONTACTS BETWEEN LILLY
AND NEW JERSEY HAD NO APPARENT CONNECTION WITH THE SUIT WHICH LILLY
SOUGHT TO BRING AGAINST SAV-ON-DRUGS; THE COURT HELD THAT THERE WERE
SUFFICIENT INTRASTATE ACTIVITIES OF LILLY SO THAT IT COULD BE REQUIRED
GENERALLY TO QUALIFY TO DO BUSINESS IN NEW JERSEY, RATHER THAN THAT
LILLY'S BUSINESS WITH SAV-ON WAS INTRASTATE.  HERE THE VERY DEALINGS OF
ALLENBERG WHICH ARE CONCEDEDLY INTRASTATE ARE THE DEALINGS BETWEEN IT
AND PITTMAN REVOLVING AROUND THE CONTRACT UPON WHICH IT SEEKS TO SUE IN
THE MISSISSIPPI COURTS. 

BUT EVEN IF I WERE ABLE TO AGREE WITH THE COURT THAT ALLENBERG'S
ACTIVITIES IN MISSISSIPPI WERE PURELY "INTERSTATE," I DO NOT BELIEVE
THAT OUR CASES, PROPERLY UNDERSTOOD, PREVENT MISSISSIPPI FROM EXACTING
QUALIFICATION FROM A FOREIGN CORPORATION AS A CONDITION FOR USE OF THE
MISSISSIPPI COURTS. 

IT HAS BEEN SETTLED SINCE MR. CHIEF JUSTICE TANEY'S OPINION FOR THE
COURT IN BANK OF AUGUSTA V. EARLE, 13 PET. 519 (1839), THAT A
CORPORATION ORGANIZED IN ONE STATE WHICH SEEKS TO DO BUSINESS IN
ANOTHER STATE MAY BE REQUIRED BY THE LATTER TO QUALIFY UNDER ITS LAWS
BEFORE DOING SUCH BUSINESS.  AN EXCEPTION TO THIS GENERAL RULE WAS
ESTABLISHED IN CASES SUCH AS CRUTCHER V. KENTUCKY, 141 U.S. 47 (1891),
IN WHICH THE COURT HELD THAT SUCH A LICENSE MIGHT NOT BE REQUIRED OF AN
EXPRESS COMPANY ENGAGED ONLY IN INTERSTATE COMMERCE.  ID., AT 56 - 57. 
THAT EXCEPTION WAS SUBSEQUENTLY APPLIED IN INTERNATIONAL TEXTBOOK CO.
V. PIGG, 217 U.S. 91 (1910), AND EXPANDED IN DAHNKE-WALKER MILLING CO.
V. BONDURANT, 257 U.S. 282 (1921), AND SHAFER V. FARMERS GRAIN CO. 268
U.S. 189 (1925). 

THE COURT TODAY EXCERPTS A PARAGRAPH FROM SHAFER DEALING WITH WHEAT,
AND CITES IT FOR THE APPARENT PROPOSITION THAT TRADING IN AGRICULTURAL
COMMODITIES, WHETHER WHEAT OR COTTON, IS A FORM OF INTERSTATE COMMERCE
WHICH MAY NOT BE REGULATED BY THE STATES.  BUT SHAFER INVALIDATED, NOT
A STATUTE REQUIRING A FOREIGN CORPORATION TO QUALIFY TO DO BUSINESS
BEFORE USING THE COURTS, BUT INSTEAD A COMPREHENSIVE STATUTORY SCHEME
REGULATING THE METHOD BY WHICH GRAIN MIGHT BE SOLD.  THE COURT IN ITS
OPINION IN SHAFER WAS CAREFUL TO DISTINGUISH OTHER SITUATIONS IN WHICH
STATE REGULATION OF TRADE IN AGRICULTURAL COMMODITIES WHICH CONCEDEDLY
WENT ACROSS STATE LINES HAD BEEN UPHELD.  ID., AT 201 - 202. 

DAHNKE-WALKER MILLING CO., SUPRA, DID DEAL WITH A STATUTE REQUIRING
FOREIGN CORPORATIONS TO QUALIFY, AND THE COURT HELD THE STATE STATUTE
COULD NOT BE APPLIED CONSISTENTLY WITH THE COMMERCE CLAUSE, BUT ITS
REASONING IN REACHING THIS CONCLUSION IN NO WAY SUPPORTS THE RESULT THE
COURT REACHES TODAY. 

"THIS CONTRACT WAS MADE IN CONTINUANCE OF THAT PRACTICE, THE
PLAINTIFF INTENDING TO FORWARD THE GRAIN TO ITS MILL AS SOON AS THE
DELIVERY WAS MADE.  IN KEEPING WITH THAT PURPOSE THE DELIVERY WAS TO BE
ON BOARD THE CARS OF A PUBLIC CARRIER.  APPLYING TO THESE FACTS THE
PRINCIPLES BEFORE STATED, WE THINK THE TRANSACTION WAS IN INTERSTATE
COMMERCE.  THE STATE COURT, STRESSING THE FACT THAT THE CONTRACT WAS
MADE IN KENTUCKY AND WAS TO BE PERFORMED THERE, PUT ASIDE THE FURTHER
FACTS THAT THE DELIVERY WAS TO BE ON BOARD THE CARS AND THAT THE
PLAINTIFF, IN CONTINUANCE OF ITS PRIOR PRACTICE, WAS PURCHASING THE
GRAIN FOR SHIPMENT TO ITS MILL IN TENNESSEE.  WE THINK THE FACTS SO
NEGLECTED HAD A MATERIAL BEARING AND SHOULD HAVE BEEN CONSIDERED.  THEY
SHOW THAT WHAT OTHERWISE SEEMED AN INTRASTATE TRANSACTION WAS A PART OF
INTERSTATE COMMERCE."  257 U.S., AT 292. 

HERE, UNLIKE THE SITUATION WHICH THE DAHNKE-WALKER COURT REGARDED AS
CRITICAL THERE, ALLENBERG CHOSE TO STORE COTTON OWNED BY IT IN
MISSISSIPPI WAREHOUSES FOR VARYING LENGTHS OF TIME IN ORDER THAT IT
MIGHT HAVE A PERPETUAL REVOLVING INVENTORY OF COTTON AVAILABLE FOR
FUTURE SHIPMENT ORDERS.  HERE, TOO, ALLENBERG HAD CONTRACTED WITH
MISSISSIPPI FARMERS, INCLUDING PITTMAN, TO GROW THE COTTON FROM SEED. 

CASES SUCH AS SHAFER, SUPRA, AND DAHNKE-WALKER, SUPRA, WERE DECIDED
DURING A PERIOD OF THIS COURT'S HISTORY WHEN THE APPROVED JUDICIAL
TECHNIQUE "WAS TO DECIDE WHETHER A SUBJECT WAS OR WAS NOT INTERSTATE
COMMERCE; IF IT WAS, CONGRESS ALONE COULD REGULATE IT, AND IF NOT, ONLY
THE STATES COULD."  /3/  THIS DOCTRINE OF MUTUAL EXCLUSIVITY WAS
LARGELY DISPELLED IN LATER CASES BEGINNING WITH SOUTH CAROLINA HIGHWAY
DEPT. V. BARNWELL BROS., 303 U.S. 177 (1938), AND FOLLOWED IN A LONG
LINE OF SUCCEEDING CASES.  /4/  THE RULE STATED BY THE COURT IN PIKE V.
BRUCE CHURCH, INC., 397 U.S. 137, 142 (1970), IS QUITE DIFFERENT FROM
THAT FOUND IN CASES SUCH AS SHAFER AND DAHNKE-WALKER:

  WHERE THE STATUTE REGULATES EVENHANDEDLY TO EFFECTUATE A
LEGITIMATE LOCAL PUBLIC INTEREST, AND

  ITS EFFECTS ON INTERSTATE COMMERCE ARE ONLY INCIDENTAL, IT WILL
BE UPHELD UNLESS THE BURDEN

  IMPOSED ON SUCH COMMERCE IS CLEARLY EXCESSIVE IN RELATION TO THE
PUTATIVE LOCAL BENEFITS." 

IN UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202 (1944), /5/  THIS
COURT UPHELD MINNESOTA'S DENIAL OF ACCESS TO ITS COURTS TO A NORTH
DAKOTA CUSTOMHOUSE BROKER, WHOSE SOLE BUSINESS IN MINNESOTA WAS
INTERSTATE COMMERCE, WHERE THE BROKER HAD FAILED TO QUALIFY AS REQUIRED
OF SUCH FOREIGN CORPORATIONS: 

"(THE COMMERCE CLAUSE DOES NOT CUT THE STATES OFF FROM ALL
LEGISLATIVE RELATION TO FOREIGN AND INTERSTATE COMMERCE.  SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 404 U.S. 177.  . . . THE
INCIDENCE OF THE PARTICULAR STATE ENACTMENT MUST DETERMINE WHETHER IT
HAS TRANSGRESSED THE POWER LEFT TO THE STATES TO PROTECT THEIR SPECIAL
STATE INTERESTS ALTHOUGH IT IS RELATED TO A PHASE OF A MORE EXTENSIVE
COMMERCIAL PROCESS."  ID., AT 209 - 210. 

SEE PARKER V. BROWN, 317 U.S. 341, 361 (1942). 

MISSISSIPPI'S QUALIFICATION STATUTE IS CONCEDEDLY NOT
DISCRIMINATORY.  DOMESTIC CORPORATIONS ORGANIZED UNDER HER LAWS MUST
SUBMIT THEMSELVES TO HER TAXING JURISDICTION, TO SERVICE OF PROCESS
WITHIN THE STATE, AND TO A NUMBER OF OTHER INCIDENTS OF CORPORATE
EXISTENCE WHICH STATE LAW MAY IMPOSE.  UNION BROKERAGE RECOGNIZED THAT
QUALIFICATION STATUTES WERE IMPORTANT IN THE COLLECTION OF STATE TAXES
BY IDENTIFYING FOREIGN CORPORATIONS OPERATING WITHIN THE STATE /6/  AND
IN THE PROTECTION OF CITIZENS WITHIN THE STATE THROUGH INSURING READY
SUSCEPTIBILITY OF THE CORPORATION TO SERVICE OF PROCESS.  /7/  THE
QUALIFICATION STATUTE ALSO SERVES AN IMPORTANT INFORMATIONAL FUNCTION
MAKING AVAILABLE TO CITIZENS OF THE STATE WHO MAY DEAL WITH THE FOREIGN
CORPORATION DETAILS OF ITS FINANCING AND CONTROL.  /8/  ALTHOUGH THE
RESULT OF ALLENBERG'S FAILURE TO COMPLY WITH THE QUALIFICATION STATUTE
IS A DRASTIC ONE, /9/  OUR DECISIONS HOLD THAT THE BURDEN IMPOSED ON
INTERSTATE COMMERCE BY SUCH STATUTES IS TO BE JUDGED WITH REFERENCE TO
THE MEASURES REQUIRED TO COMPLY WITH SUCH LEGISLATION, AND NOT TO THE
SANCTIONS IMPOSED FOR VIOLATION OF IT.  ELI LILLY, 366 U.S., AT 282 -
283; RAILWAY EXPRESS CO. V. VIRGINIA, 282 U.S. 440, 444 (1931).  THE
STEPS NECESSARY IN ORDER TO COMPLY WITH THIS STATUTE ARE NOT
UNREASONABLY BURDENSOME.  /10/ 

I WOULD NOT EXPAND THE HOLDINGS OF SHAFER AND DAHNKE-WALKER IN THE
FACE OF SO SUBSTANTIAL A BODY OF SUBSEQUENT CASE LAW WHICH LEAVES THEIR
REASONING, IF NOT THEIR HOLDINGS, SUSPECT.  I WOULD AFFIRM THE JUDGMENT
OF THE SUPREME COURT OF MISSISSIPPI.     /1/  APP. 92; BRIEF FOR
APPELLANT 11.  THE RECORD DOES NOT DISCLOSE THE TURNOVER TIME OF THE
INVENTORY BUT THIS IS NOT MATERIAL IN LIGHT OF ALLENBERG'S ADMISSION
THAT IT MAINTAINS PERPETUAL INVENTORIES IN MISSISSIPPI. 

/2/  IN ITS CONCLUDING PARAGRAPH THE COURT STATES:  "WE HOLD ONLY
THAT MISSISSIPPI'S REFUSAL TO HONOR AND ENFORCE CONTRACTS MADE FOR
INTERSTATE OR FOREIGN COMMERCE IS REPUGNANT TO THE COMMERCE CLAUSE." 
THE COURT OFFERS NO DEFINITION OR ANALYSIS AS TO WHY THIS PARTICULAR
CONTRACT WAS "MADE FOR INTERSTATE OR FOREIGN COMMERCE, "AND THE
LANGUAGE IS TRACEABLE TO NONE OF OUR PREVIOUS CASES DEALING WITH THE
COMMERCE CLAUSE.     /3/  STERN, THE COMMERCE CLAUSE AND THE NATIONAL
ECONOMY, 1933 - 1946, 59 HARV.L.REV.  645, 648 (1946).  SEE ALSO P.
BENSON, THE SUPREME COURT AND THE COMMERCE CLAUSE, 1937 - 1970 (1970). 

/4/  IN ADDITION TO SHAFER V. FARMERS GRAIN CO., 268 U.S. 189
(1925), AND DAHNKE-WALKER MILLING CO. V. BONDURANT, 257 U.S. 282
(1921), THE COURT TODAY RELIES ON SWIFT & CO. V. UNITED STATES, 196
U.S. 375 (1905); STAFFORD V. WALLACE, 258 U.S. 495 (1922); AND CHICAGO
BOARD OF TRADE V. OLSEN, 262 .S.  U.1 (1923).  THESE CASES UPHELD
FEDERAL REGULATORY LEGISLATION APPLIED TO COMMODITIES EXCHANGES AS
JUSTIFIED BY THE COMMERCE POWER.  UNLESS THE COURT TODAY TAKES A GIANT
STEP BACKWARDS, THESE ARE NOT RELEVANT TO THE QUESTION OF THE
CONSTITUTIONALITY OF MISSISSIPPI'S STATUTE.  SEE, E.G., DI SANTO V.
PENNSYLVANIA, 273 U.S. 34, 37 (1927) (BRANDEIS, J., JOINED BY HOLMES,
J., DISSENTING), A CASE LATER OVERRULED IN CALIFORNIA V. THOMPSON, 313
U.S. 109, 116 (1941). 

/5/  THE COURT DISTINGUISHES UNION BROKERAGE ON THE GROUND THAT THE
ACTIVITIES OF THE BROKER THERE WERE "LOCALIZED" INTERSTATE COMMERCE,
BUT A COMPARISON OF THE FACTS OF THAT CASE WITH THE FACTS HERE SUGGESTS
THAT ALLENBERG'S ACTIVITIES IN MISSISSIPPI WERE EVERY BIT AS
"LOCALIZED" AS THOSE OF UNION BROKERAGE IN MINNESOTA. 

/6/  MOST COMMENTATORS STUDYING QUALIFICATION STATUTES HAVE
CONCLUDED THAT A MAJOR PURPOSE OF SUCH STATUTES IS FACILITATION OF THE
ASSESSMENT AND COLLECTION OF STATE AD VALOREM AND FRANCHISE TAXES. 
SEE, E.G., COMMENT, FOREIGN CORPORATIONS-STATE BOUNDARIES FOR NATIONAL
BUSINESS, 59 YALE L.J. 737, 746 (1950).  CASES SUCH AS CHASSANIOL V.
GREENWOOD, 291 U.S. 584 (1934); FEDERAL COMPRESS CO. V. MCLEAN, 291
U.S. 17 (1934); AND KOSYDAR V. NATIONAL CASH REGISTER CO., 417 U.S. 62
(1974), MAKE IT CLEAR THAT THE COTTON STORED IN MISSISSIPPI IS SUBJECT
TO STATE TAXATION.  MISSISSIPPI CODE ANN. 27 - 13 - 7 (1972) IMPOSES A
FRANCHISE TAX ON FOREIGN CORPORATIONS OPERATING WITHIN THE STATE
MEASURED BY THE AMOUNT OF CAPITAL LOCATED IN MISSISSIPPI.  A PORTION OF
THE INFORMATION REQUIRED TO BE FILED WITH THE MISSISSIPPI SECRETARY OF
STATE IN ORDER TO QUALIFY WITHIN THE STATE IS AN ESTIMATE OF CAPITAL
LOCATED WITHIN MISSISSIPPI.  THE INFORMATION IS ESSENTIAL TO THE
IDENTIFICATION OF FOREIGN CORPORATIONS SUBJECT TO THE TAX.  THE COURT
TODAY LEAVES THE TAX STANDING BUT ILLOGICALLY DEPRIVES MISSISSIPPI OF
ITS SOLE MEANS OF ENFORCEMENT OF THE TAX. 

/7/  ALTHOUGH IT MAY BE POSSIBLE TO ASSERT JURISDICTION OVER AN
UNQUALIFIED FOREIGN CORPORATION DOING BUSINESS IN THE STATE UNDER A
LONG-ARM STATUTE SINCE MINIMUM CONTACTS WITH THE STATE WILL NORMALLY
EXIST, THE ABSENCE OF A REGISTERED AGENT IN THE STATE CREATES
SUBSTANTIAL PROBLEMS FOR ANY POTENTIAL PLAINTIFF SINCE HE WILL BE
REQUIRED TO PROVE THE EXISTENCE OF SUCH MINIMUM CONTACTS--OFTEN IN THE
ABSENCE OF ANY SUBPOENA POWER OVER THE FOREIGN CORPORATION.  SEE, E.G.,
NOTE, THE SUPREME COURT, 1960 TERM, 75 HARV.L.REV.  40, 138, 140
(1961).  IN THIS AREA SUCH QUALIFICATION STATUTES PROVIDE A ROUGH FORM
OF RECIPROCITY (A GUARANTEE OF SUSCEPTIBILITY OF SUIT IN EXCHANGE FOR
THE RIGHT TO BRING SUIT) AND OPERATE AS SECURITY FOR PERFORMANCE OF THE
FOREIGN CORPORATION'S OBLIGATIONS OWED TO CITIZENS OF THE STATE.  CF.
PAUL V. VIRGINIA, 8 WALL.  168, 181 (1869).  SEE, E.G., COMMENT, SUPRA,
N. 6, 59 YALE L.J., AT 742 - 745. 

/8/  SEE, E.G., COMMENT, THE LILLY CASE:  DICTUM, HOLDING, AND
FINDING, 57 NW.U.L.REV.  306, 321 (1962).  WHILE STATE AND FEDERAL
SECURITIES LAWS MAY ON OCCASION PROVIDE PARALLEL DISCLOSURES, THEY WILL
OFTEN NOT.  FOR EXAMPLE, IN THE IMMEDIATE CASE, THERE IS NO INDICATION
THAT ALLENBERG WAS SUBJECT TO ANY DISCLOSURE REQUIREMENTS OTHER THAN
THOSE PROVIDED BY THE QUALIFICATION STATUTE.  MISSISSIPPI REQUIRES SUCH
FOREIGN CORPORATIONS TO UPDATE INFORMATION IN THEIR CERTIFICATES
THROUGH ANNUAL REPORTS.  MISS.  CODE ANN. 79 - 3 - 249 (1972).  THIS
INFORMATION IS AVAILABLE TO ALL CITIZENS OF THE STATE THROUGH PAYMENT
OF A NOMINAL FEE TO THE SECRETARY OF STATE'S OFFICE.  MISS.  CODE ANN.
79 - 3 - 257 (1972).  INFORMATION SUCH AS THE FINANCIAL STRUCTURE AND
CONTROL OF THE FOREIGN CORPORATION IS OBVIOUSLY HIGHLY RELEVANT TO ANY
CITIZEN OF MISSISSIPPI WHO IS CONSIDERING DOING BUSINESS WITH THE
CORPORATION. 

/9/  THE LARGE VARIETY OF POSSIBLE SANCTIONS IMPOSED BY THE STATES
WAS DISCUSSED AT LENGTH IN NOTE, SANCTIONS FOR FAILURE TO COMPLY WITH
CORPORATE QUALIFICATION STATUTES:  AN EVALUATION, 63 COL.L.REV.  117,
122 - 123 (1963).  "BECAUSE OF THE DIFFICULTIES INVOLVED IN DISCOVERY
AND ENFORCEMENT BY STATE OFFICIALS, DENIAL OF ACCESS TO STATE COURTS IS
AN ESSENTIAL ELEMENT OF A STATUTORY SCHEME DESIGNED TO ENCOURAGE
COMPLIANCE WITH QUALIFICATION REQUIREMENTS."  ID., AT 129 - 130
(FOOTNOTE OMITTED).  THE DENIAL-OF-A-FORUM SANCTION UTILIZED BY
MISSISSIPPI IS ALSO USED BY FIVE OTHER STATES.  ALA. CODE, TIT. 10, 21
(89) (1973 CUM. SUPP.); ARIZ. REV. STAT. ANN. 10 - 482 (1956); ARK.
STAT. ANN. 64 - 1202 (1966); VT. STAT. ANN., TIT. 11, 2120 (1973).  THE
RULE IS APPLIED IN MONTANA BY CASE LAW.  NOTE, RIGHT OF A FOREIGN
CORPORATION TO SUE UPON CONTRACTS IN MONTANA COURTS--DOING BUSINESS-
FAILURE TO QUALIFY--SUBSEQUENT QUALIFICATION, 26 MONT.L.REV.  218
(1965).  THERE MAY CERTAINLY BE A DISPUTE AS TO THE WISDOM OF
MISSISSIPPI'S CHOICE OF THIS SANCTION BUT UNLESS SUBSTANTIVE DUE
PROCESS NOW CLOTHED IN COMMERCE CLAUSE GARB ONCE MORE ELEVATES THE
COURT INTO AN ARBITER OF LEGISLATIVE WISDOM, THIS CONSIDERATION IS
IRRELEVANT TO OUR DISPOSITION OF THE CASE. 

/10/  THE PRINCIPAL REQUIREMENTS ARE THE FILING OF CERTAIN
INFORMATION WITH THE MISSISSIPPI SECRETARY OF STATE AND THE PAYMENT OF
A FEE RANGING BETWEEN $20 AND $500 DEPENDING ON THE AMOUNT OF STATED
CAPITAL OF THE FOREIGN CORPORATION.  MISS.  CODE ANN. 79 - 3 - 219 AND
79 - 3 - 255(Q) (1972).  WHEN THE REQUIRED INFORMATION IS PROVIDED AND
THE FEE IS PAID, THE SECRETARY OF STATE ISSUES THE REQUESTED
CERTIFICATE.  MISS.  CODE ANN. 79 - 3 - 221 (1972).  THE BURDEN OF
QUALIFYING APPEARS SMALL, PARTICULARLY WHEN COMPARED TO ALLENBERG'S
ACTIVITIES IN THE STATE.  SEE UNION BROKERAGE CO. V. JENSEN, 322 U.S.
202, 210 (1944). 

JOHN MCQUISTON II ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANT. 

GEORGE COLVIN COCHRAN ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON
THE BRIEF WERE C. "CLIFF" FINCH AND ANNA C. MADDAN. 

JAMES F. BLUMSTEIN FILED A BRIEF FOR THE AMERICAN COTTON SHIPPERS
ASSN. AS AMICUS CURIAE. 
..END :




OTTE V. UNITED STATES, 419 U.S. 43 


       OTTE, TRUSTEE IN BANKRUPTCY V. UNITED STATES ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 73 - 375.  ARGUED OCTOBER 15, 1974--DECIDED NOVEMBER
19,

1974; 480 F.2D 184, AFFIRMED. 


    1.  A TRUSTEE IN BANKRUPTCY FOR AN EMPLOYER IS REQUIRED BY THE

  WITHHOLDING PROVISIONS OF THE INTERNAL REVENUE CODE OF 1954 (IRC)

  AND SIMILAR PROVISIONS OF THE NEW YORK CITY ADMINISTRATIVE CODE

  TO WITHHOLD TAXES FROM THE PAYMENT OF PRIORITY CLAIMS FOR WAGES

  EARNED BY EMPLOYEES PRIOR TO THE EMPLOYER'S BANKRUPTCY, BUT

  UNPAID AT THE INCEPTION OF THE BANKRUPTCY PROCEEDING.  THE

  PAYMENT OF THE WAGE CLAIMS IS "PAYMENT OF WAGES" UNDER IRC

  3402(A) REQUIRING WITHHOLDING OF SOCIAL SECURITY TAXES, AND AN

  "EMPLOYER," DEFINED BY IRC 3401 (D)(1) TO INCLUDE "THE PERSON

HAVING CONTROL OF THE PAYMENT"  OF WAGES, IS PRESENT UNDER

  3402(A).  THE SAME RATIONALE APPLIES TO THE WITHHOLDING OF CITY

  INCOME TAXES UNDER THE SIMILAR CITY CODE PROVISIONS.  PP. 48 -

  52. 

     2.  FROM THE OBLIGATION TO WITHHOLD IT FOLLOWS THAT THE
TRUSTEE

  IS ALSO REQUIRED TO PREPARE AND SUBMIT TO THE WAGE CLAIMANTS AND

  TO THE TAXING AUTHORITIES THE REPORTS AND RETURNS REQUIRED OF

  EMPLOYERS UNDER IRC 6051(A), 6001, AND 6011 AND SIMILAR

  PROVISIONS OF THE CITY CODE.  P. 52. 

     3.  REQUIRING THE TRUSTEE TO WITHHOLD, REPORT, AND FILE
RETURNS

  DOES NOT UNDULY BURDEN THE ADMINISTRATION OF BANKRUPT ESTATES SO

  AS TO CONTRAVENE THE SPIRIT OF THE BANKRUPTCY ACT, FOR THE BURDEN

  IS THE SAME AS ANY EMPLOYER, OR RECEIVER, ARRANGEMENT DEBTOR, OR

  OTHER FIDUCIARY, WITH A LIKE NUMBER OF EMPLOYEES MUST BEAR;

  MOREOVER, BOTH THE IRC AND THE CITY CODE ALLOW THE TRUSTEE TO

  WITHHOLD TAXES AT A FLAT RATE, THUS FACILITATING THE TAX

  COMPUTATION.  PP. 52 - 54. 

4.  PROOFS OF CLAIM BY THE UNITED STATES AND NEW YORK CITY WITH

  RESPECT TO THE WITHHOLDING TAXES ON THE PRIORITY WAGE CLAIMS ARE

  NOT REQUIRED.  SINCE TAX LIABILITY ACCRUES ONLY WHEN THE WAGE IS

  PAID, AND SINCE THE WAGES SUBJECT TO THE WAGE CLAIMS HERE,

  ALTHOUGH EARNED BEFORE BANKRUPTCY, WERE NOT PAID PRIOR THERETO,

  SO THAT THE BANKRUPT EMPLOYER'S TAX LIABILITY CAME INTO BEING

  ONLY DURING BANKRUPTCY, THE TAXES ARE NOT LIKE DEBTS OF THE

  BANKRUPT FOR WHICH PROOFS OF CLAIM MUST BE FILED.  PP. 54 - 55. 

     5.  THE FEDERAL AND CITY WITHHOLDING TAXES ARE ENTITLED, AS
ARE

  THE PRIORITY WAGE CLAIMS FROM WHICH THEY EMERGE, TO SECOND

  PRIORITY OF PAYMENT UNDER 64A(2) OF THE BANKRUPTCY ACT.  SUCH

  TAXES ARE NOT WITHIN THE FOURTH PRIORITY UNDER 64A(4), SINCE THEY

  DID NOT BECOME DUE AND OWING BY THE BANKRUPT UNTIL AFTER THE WAGE

  CLAIMS WERE PAID FOLLOWING BANKRUPTCY.  NOR ARE SUCH TAXES

  ENTITLED TO FIRST PRIORITY UNDER 64A(1), SINCE THEY ARE NOT COSTS

  OR EXPENSES OF ADMINISTRATION OF THE BANKRUPT ESTATE, BUT ARE

  PART OF THE WAGE CLAIMS THEMSELVES AND ARE CARVED OUT OF THE

  PAYMENT OF THOSE CLAIMS.  PP. 55 - 58. 

     BLACKMUN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS BANKRUPTCY CASE RAISES ISSUES (A) AS TO WHETHER PRIORITY CLAIMS
FOR WAGES EARNED BY EMPLOYEES PRIOR TO AN EMPLOYER'S BANKRUPTCY, BUT
UNPAID AT THE INCEPTION OF THE BANKRUPTCY PROCEEDING, ARE SUBJECT TO
WITHHOLDING TAXES, AND, IF SO, (B) AS TO WHETHER THE TAXING ENTITIES
MUST FILE PROOFS OF CLAIM, AND (C) AS TO WHICH PRIORITY OF PAYMENT, IF
ANY, THE WITHHOLDING TAXES ENJOY UNDER 64A OF THE BANKRUPTCY ACT (THE
ACT), 11 U.S.C. 104(A).  /1/

        I 

ON SEPTEMBER 15, 1964, FREEDOMLAND, INC., A NEW YORK CORPORATION,
FILED A PETITION WITH THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR AN ARRANGEMENT UNDER CHAPTER XI OF THE ACT, 11
U.S.C. 701 - 799.  THE ARRANGEMENT FAILED, AND ON AUGUST 30, 1965,
FREEDOMLAND WAS ADJUDICATED A BANKRUPT.  PETITIONER, WILLIAM OTTE, WAS
APPOINTED AND QUALIFIED AS THE TRUSTEE. 

DURING THE STATUTORILY PRESCRIBED SIX-MONTH PERIOD FOR THE FILING OF
PROOFS OF CLAIM AGAINST THE ESTATE, SEE 57 AND 63 OF THE ACT, 11 U.S.C.
93 AND 103, 413 FORMER EMPLOYEES OF FREEDOMLAND FILED PROOFS FOR UNPAID
WAGES (EACH CLAIM IN THE AMOUNT OF $600 OR LESS AND ALL THE CLAIMS
AGGREGATING APPROXIMATELY $80,000) THAT HAD BEEN EARNED WITHIN THREE
MONTHS PRECEDING THE FILING OF THE CHAPTER XI PETITION.  THESE WAGE
CLAIMS CONCEDEDLY WERE ENTITLED TO A SECOND PRIORITY OF PAYMENT UNDER
64A(2).  NO PROOFS FOR ANY FEDERAL INCOME OR FEDERAL INSURANCE
CONTRIBUTIONS ACT TAXES ON THESE WAGE CLAIMS, WITHHOLDABLE UNDER
CHAPTERS 24 AND 21, RESPECTIVELY, OF THE INTERNAL REVENUE CODE OF 1954,
26 U.S.C. 3401 - 3404 AND 3101 - 3126, WERE FILED BY THE UNITED STATES,
AND NO PROOFS FOR ANY NEW YORK CITY PERSONAL INCOME TAX, WITHHOLDABLE
UNDER CHAPTER 46, TITLES T AND U, OF THE NEW YORK CITY ADMINISTRATIVE
CODE, WERE FILED BY THE CITY. 

IN NOVEMBER 1969 THE TRUSTEE FILED A MOTION FOR AN ORDER DIRECTING
DISTRIBUTION TO THE 413 PRIORITY WAGE CLAIMANTS WITHOUT DEDUCTION FOR
ANY FEDERAL, STATE, OR CITY WITHHOLDING TAXES.  HE ALSO ASKED THAT THE
REFEREE DECLARE THAT THE TRUSTEE WAS NOT REQUIRED TO WITHHOLD OR PAY
ANY SUCH TAX OR TO FILE ANY REPORT OR RETURN RELATIVE THERETO WITH THE
RESPECTIVE TAXING AUTHORITIES.  THE STATE OF NEW YORK, ALTHOUGH SERVED,
FILED NO RESPONSE TO THE TRUSTEE'S MOTION.  THE UNITED STATES AND THE
CITY DID RESPOND.  THE REFEREE ISSUED AN ORDER GRANTING THE TRUSTEE THE
RELIEF HE REQUESTED.  APP. 48A - 50A.  IN A SUPPORTING MEMORANDUM
DECISION, THE REFEREE STATED THAT THE WITHHOLDING AND REPORTING
REQUIREMENTS OF THE FEDERAL AND CITY STATUTES "WOULD IMPOSE A FURTHER
BURDEN ON THE ADMINISTRATION OF THESE ESTATES WHICH IS ENTIRELY
INCONSISTENT WITH THE OBJECTIVE OF EFFICIENT EXPEDITIOUS ECONOMIC
ADMINISTRATION OF BANKRUPT ESTATES," AND THAT "COMPLIANCE WITH
WITHHOLDING AND REPORTING REQUIREMENTS . . . IS UTTERLY INCONSISTENT
WITH THE SPIRIT AND THE LETTER OF THE BANKRUPTCY ACT."  ID., AT 36A
37A. 

THE UNITED STATES AND THE CITY FILED PETITIONS WITH THE UNITED
STATES DISTRICT COURT TO REVIEW THE REFEREE'S ORDER AND DECISION. 
AFTER A HEARING, THE DISTRICT COURT REVERSED THE ORDER AND DECISION
INSOFAR AS THEY PERTAINED TO FEDERAL TAXES.  IT DIRECTED THE
WITHHOLDING OF FEDERAL TAXES ON THE PRIORITY WAGE CLAIMS, AND ALSO
CONCLUDED THAT THE AMOUNTS TO BE WITHHELD WERE "TAXES WHICH BECAME
LEGALLY DUE AND OWING BY THE BANKRUPT," WITHIN THE LANGUAGE OF 64A(4),
AND, THEREFORE, WERE TO BE PAID AS TAX CLAIMS OF THE FOURTH PRIORITY. 
THE COURT OBSERVED THAT LITTLE MORE THAN A SIMPLE BOOKKEEPING EFFORT
WOULD BE INVOLVED IN WITHHOLDING 25% OF THE WAGE DISTRIBUTIONS.  /2/
IT HELD THAT PROOFS OF CLAIM WERE NOT REQUIRED BECAUSE THE EMPLOYEES'
PROOFS GAVE NOTICE TO THE TRUSTEE AND OTHER CREDITORS OF THE TOTAL
AMOUNTS DISTRIBUTABLE ON ACCOUNT OF THE CLAIMS.  THE DISTRICT COURT,
HOWEVER, RULED AGAINST THE CITY ON THE GROUND THAT THE CITY'S PERSONAL
INCOME TAX DID NOT BECOME EFFECTIVE UNTIL 1966, AND THUS NO CITY TAX
WAS DUE AND OWING BY THE BANKRUPT IN 1964 WHEN THE CHAPTER XI PETITION
WAS FILED.  IN RE FREEDOMLAND, INC., 341 F.SUPP.  647 (1972). 

THE TRUSTEE, THE UNITED STATES, AND THE CITY ALL APPEALED.  THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED IN PART
AND REVERSED IN PART.  IT HELD THAT THE TRUSTEE WAS OBLIGATED TO
WITHHOLD, TO REPORT, AND TO PAY OVER THE WITHHOLDING TAXES ON THE WAGE
CLAIMS, AND THAT THE TAXING ENTITIES WERE NOT REQUIRED TO FILE PROOFS
OF CLAIM.  IT FURTHER HELD, HOWEVER--AND THUS TO THIS EXTENT DISAGREED
WITH THE DISTRICT COURT--THAT BOTH THE UNITED STATES AND THE CITY WERE
ENTITLED TO BE PAID AS SECOND PRIORITY CLAIMANTS UNDER 64A(2).  IN RE
FREEDOMLAND, INC., 480 F.2D 184 (1973). 

WE GRANTED THE TRUSTEE'S PETITION FOR CERTIORARI (UNOPPOSED BY THE
UNITED STATES) PRIMARILY BECAUSE THE CIRCUITS ARE IN DISARRAY AS TO THE
PRIORITY TO BE ACCORDED TO WITHHOLDING TAXES ON PREBANKRUPTCY WAGE
CLAIMS.  /3/  414 U.S. 1156 (1974).  NO CROSS-PETITION WAS FILED BY
EITHER THE UNITED STATES OR THE CITY OF NEW YORK. 

        II

        WITHHOLDING, REPORTS, AND RETURNS 

EVERY COURT OF APPEALS WHICH HAS FACED THE ISSUE, INCLUDING THE
SECOND CIRCUIT IN THE PRESENT CASE, HAS HELD, CONTRARY TO THE RULING OF
THE REFEREE, THAT THE WITHHOLDING PROVISIONS OF THE INTERNAL REVENUE
CODE, AND OF STATE OR MUNICIPAL TAX STATUTES, REQUIRE THAT A TRUSTEE IN
BANKRUPTCY WITHHOLD INCOME AND SOCIAL SECURITY TAXES FROM PAYMENTS OF
WAGE CLAIMS, AND THAT HE PREPARE AND SUBMIT TO THE WAGE CLAIMANTS AND
TO THE TAXING AUTHORITIES THE REPORTS AND RETURNS STATUTORILY REQUIRED
OF EMPLOYERS.  UNITED STATES V. FOGARTY, 164 F.2D 26, 30 - 33 (CA8
1947); UNITED STATES V. CURTIS, 178 F.2D 268, 269 (CA6 1949), CERT.
DENIED, 339 U.S. 965 (1950); LINES V. CALIFORNIA DEPT. OF EMPLOYMENT,
242 F.2D 201, 202, REH. DEN., 246 F.2D 70 (CA9), CERT. DENIED, 355 U.S.
857 (1957); IN RE CONNECTICUT MOTOR LINES, INC., 336 F.2D 96 (CA3
1964).  TO THE SAME EFFECT IS IN RE DAIGLE, 111 F.SUPP.  109, 111 (ME.
1953). 

A. THE REQUIREMENT OF WITHHOLDING.  SECTION 3402(A) OF THE INTERNAL
REVENUE CODE, 26 U.S.C. 3402(A), REQUIRES "EVERY EMPLOYER MAKING
PAYMENT OF WAGES" TO "DEDUCT AND WITHHOLD UPON SUCH WAGES . . . A TAX
DETERMINED.  . . ."  SECTION 3401(A) DEFINES "WAGES" FOR WITHHOLDING
PURPOSES TO MEAN, WITH CERTAIN EXCEPTIONS, "ALL REMUNERATION . . . FOR
SERVICES PERFORMED BY AN EMPLOYEE FOR HIS EMPLOYER," AND 3401(D)
DEFINES "EMPLOYER" AS "THE PERSON FOR WHOM AN INDIVIDUAL PERFORMS OR
PERFORMED ANY SERVICE, OF WHATEVER NATURE, AS THE EMPLOYEE OF SUCH
PERSON.  THE LATTER SECTION MAKES AN EXCEPTION WHERE "THE PERSON FOR
WHOM THE INDIVIDUAL PERFORMS OR PERFORMED THE SERVICES DOES NOT HAVE
CONTROL OF THE PAYMENT OF THE WAGES FOR SUCH SERVICE"; IN THAT CASE,
"EMPLOYER" MEANS "THE PERSON HAVING CONTROL OF THE PAYMENT OF SUCH
WAGES."  SECTIONS T46 - 51.0(A) AND U46 - 8.0 OF THE NEW YORK CITY
ADMINISTRATIVE CODE ARE GENERALLY TO THE SAME EFFECT.  /4/ 

THE TRUSTEE CONTENDS THAT THE PAYMENT OF WAGE CLAIMS UNDER THE
BANKRUPTCY ACT, ALTHOUGH FOR "WAGES" WITHIN THE MEANING OF THAT ACT, IS
NOT THE "PAYMENT OF WAGES" UNDER 3402(A), AND THAT, IN ANY EVENT, THE
TRUSTEE IS NOT THE WAGE CLAIMANT'S "EMPLOYER" TO WHOM 3402(A) RELATES. 

THE PAYMENTS TO THE WAGE CLAIMANTS WHO FILED IN THIS CASE ARE
PAYMENTS FOR SERVICES PERFORMED BY THEM FOR THEIR FORMER EMPLOYER,
FREEDOMLAND, BEFORE THE COMMENCEMENT OF THE PROCEEDING UNDER THE ACT. 
THERE IS, AND CAN BE, NO DISPUTE AS TO THIS.  THE FACT THAT THE
SERVICES WERE PERFORMED FOR THE BANKRUPT, RATHER THAN FOR THE TRUSTEE,
AND THE FACT THAT PAYMENT IS MADE AFTER THE EMPLOYMENT RELATIONSHIP
TERMINATED, DO NOT CONVERT THE REMUNERATION INTO SOMETHING OTHER THAN
"WAGES," AS DEFINED BY 3401(A) OF THE INTERNAL REVENUE CODE.  THAT
STATUTE, AS HAS BEEN NOTED, BROADLY DEFINES "WAGES" TO INCLUDE, WITH
STATED EXCEPTIONS NOT MATERIAL HERE, "ALL REMUNERATION."  AND 3401(D),
IN DEFINING "EMPLOYER,"  TWICE REFERS TO SERVICES THAT THE EMPLOYEE
"PERFORMS OR PERFORMED."  IT THUS SPEAKS IN THE PAST TENSE AS WELL AS
THE PRESENT AND THEREBY PLAINLY REVEALS THAT A CONTINUING EMPLOYMENT
RELATIONSHIP IS NOT A PREREQUISITE FOR A PAYMENT'S QUALIFICATION AS
"WAGES."  THE INCOME TAX WITHHOLDING REGULATIONS SINCE 1943 HAVE SO
PROVIDED IN SPECIFIC TERMS.  26 CFR 31.3401(A) - 1(A)(5); TREAS. REG.
120 406.205(B) (1954); TREAS. REG. 116 405.105 (1944 AND 1951 EDS.);
TREAS. REG. 115 404.101(A) (1943.)  THE REGULATIONS ARE NOT IN CONFLICT
WITH THE STATUTE; THEY FURTHER THE STATUTORY PURPOSE AND ARE
REASONABLE; AND THEY ARE A VALID EXERCISE OF THE RULEMAKING POWER. 
CAMMARANO V. UNITED STATES, 358 U.S. 498, 507 - 512 (1959).  /5/ 

THE PAYMENT OF THE WAGE CLAIMS IS THUS "PAYMENT OF WAGES" UNDER
3402(A) OF THE INTERNAL REVENUE CODE. 

THE FACT THAT IN BANKRUPTCY PAYMENT OF WAGE CLAIMS IS EFFECTED BY
ONE OTHER THAN THE BANKRUPT FORMER EMPLOYER DOES NOT DEFEAT ANY
WITHHOLDING REQUIREMENT.  ALTHOUGH 3402(A) REFERS TO THE "EMPLOYER
MAKING PAYMENT OF WAGES,"  3401(D)(1), AS ALSO HAS BEEN NOTED, PROVIDES
THAT IF THE PERSON FOR WHOM THE SERVICES WERE PERFORMED "DOES NOT HAVE
CONTROL OF THE PAYMENT OF THE WAGES FOR SUCH SERVICES," THE TERM
#EMPLOYER" THEN MEANS "THE PERSON HAVING CONTROL OF THE PAYMENT OF SUCH
WAGES."  THIS OBVIOUSLY WAS INTENDED TO PLACE RESPONSIBILITY FOR
WITHHOLDING AT THE POINT OF CONTROL.  THE PETITIONER TRUSTEE SUGGESTS
THAT CONTROL RESTS IN THE REFEREE RATHER THAN IN THE TRUSTEE, BECAUSE
OF THE FORMER'S DUTY, UNDER 39A(5) OF THE ACT, 11 U.S.C. 67(A)(5), TO
"DECLARE DIVIDENDS."  WE NEED NOT DETERMINE WHETHER IT IS THE TRUSTEE,
WITH HIS RESPONSIBILITY, UNDER 47A(8) AND (11) OF THE ACT, 11 U.S.C.
75(A)(8) AND (11), FOR AKING RECOMMENDATIONS AND ACTUAL PAYMENTS, OR
THE REFEREE, WITH HIS SUPERVISION OVER THE GENERAL ADMINISTRATION OF
THE BANKRUPT ESTATE, OR THE ESTATE ITSELF, THAT HAS "CONTROL OF THE
PAYMENT OF SUCH WAGES," WITHIN THE MEANING OF 3401(D)(1) OF THE
INTERNAL REVENUE CODE.  ONE OF THEM IS THE "EMPLOYER" AND, AS SUCH, HAS
THE DUTY TO WITHHOLD OR TO ORDER THE WITHHOLDING, AS THE CASE MAY BE. 
/6/  AN "EMPLOYER," UNDER 3402(A), IS THUS PRESENT. 

THE SITUATION IS THE SAME WITH RESPECT TO FICA WITHHOLDING.  SECTION
3102(A) OF THE INTERNAL REVENUE CODE, 26 U.S.C. 3102(A), PROVIDES THAT
THE TAX IS TO BE COLLECTED BY THE EMPLOYER BY DEDUCTING "FROM THE WAGES
AS AND WHEN PAID."  HERE, TOO, THE PAYMENTS CLEARLY ARE "WAGES" UNDER
THAT STATUTE, EVEN THOUGH AGAIN, AT THE TIME OF PAYMENT, THE EMPLOYMENT
RELATIONSHIP BETWEEN THE BANKRUPT AND THE CLAIMANT NO LONGER EXISTS. 
AND HERE, ALSO, THE REGULATIONS LONG AND CONSISTENTLY HAVE BEEN TO THIS
EFFECT.  26 CFR 31.3121(A) - 1(1); TREAS. REG. 128 408.226(A) (1951);
TREAS. REG. 106 402.227(A) (1940).  THE FACT THAT THE FICA WITHHOLDING
PROVISIONS OF THE CODE DO NOT DEFINE "EMPLOYER" IS OF NO SIGNIFICANCE,
FOR THAT TERM IS NOT TO BE GIVEN A NARROWER CONSTRUCTION FOR FICA
WITHHOLDING THAN FOR INCOME TAX WITHHOLDING. 

BECAUSE OF THE IDENTITY OF DEFINITION ALREADY OBSERVED, N. 4, SUPRA,
THE SAME RATIONALE NECESSARILY APPLIES TO THE NEW YORK CITY WITHHOLDING
TAX. 

THE TRUSTEE FINALLY SUGGEST THAT THE PLACING OF WITHHOLDING
OBLIGATION UPON THE TRUSTEE AMOUNTS TO THE IMPOSITION OF A PENALTY
BARRED BY 57J OF THE ACT, 11 U.S.C. 93(J).  THIS ARGUMENT, HOWEVER,
RESTS UPON THE PRESENCE OF 6672 OF THE INTERNAL REVENUE CODE, 26 U.S.C.
6672, AND T46 - 65.0(G) AND U46 - 35.0(G) OF THE NEW YORK CITY
ADMINISTRATIVE CODE, ALL OF WHICH IMPOSE A PENALTY, APART FROM THE TAX,
ON A PERSON WHO WILLFULLY FAILS TO FULFILL HIS OBLIGATION TO WITHHOLD
OR WHO WILLFULLY ATTEMPTS TO EVADE OR DEFEAT ANY TAX.  THAT, OBVIOUSLY,
IS NOT THIS CASE. 

B. THE REQUIREMENT OF REPORTS AND RETURNS.  THIS ROUTINELY FOLLOWS
FROM THE OBLIGATION TO WITHHOLD.  SECTION 6051(A) OF THE INTERNAL
REVENUE CODE, 26 U.S.C. 6051(A), PROVIDES THAT A PERSON REQUIRED TO
WITHHOLD MUST FURNISH THE EMPLOYEE A WRITTEN STATEMENT SHOWING THE
WAGES SUBJECT TO WITHHOLDING AND THE AMOUNT WITHHELD ON ACCOUNT OF EACH
TAX.  A DUPLICATE OF THAT STATEMENT IS TO BE AVAILABLE FOR FILING WITH
THE INTERNAL REVENUE SERVICE.  6051(D).  SECTIONS 6001 AND 6011 REQUIRE
EVERY PERSON RESPONSIBLE FOR PAYMENT OR COLLECTION OF TAX TO KEEP SUCH
RECORDS AND MAKE SUCH RETURNS AS THE SECRETARY PRESCRIBES.  THE
APPLICABLE REGULATIONS RESPOND TO THESE STATUTES.  26 CFR 31.6001 - 1,
31.6001 - 2, 31.6001 - 5, 31.6011(A) - 6(A)(1), AND 31.6051 - 1; REV.
PROC. 71 - 18, 1971 - 1 CUM. BULL.  684.  IT IS UNDISPUTED THAT THE
PETITIONER TRUSTEE MUST COMPLY WITH THESE PROVISIONS IF HE IS SUBJECT
TO THE WITHHOLDING REQUIREMENTS OF 3402 AND 3102.  NICHOLAS V. UNITED
STATES, 384 U.S. 678, 693 (1966). 

THE NEW YORK CITY ADMINISTRATIVE CODE PROVISIONS ARE TO SIMILAR
EFFECT, T46 - 52.0 AND T46 - 54.0, U46 - 9.0 AND U46 - 11.0, AND WE
REACH THE SAME CONCLUSIONS WITH RESPECT TO REPORTS AND RETURNS
THEREUNDER. 

C. EXPENSE AND DELAY.  THE TRUSTEE ARGUES, AS THE REFEREE HELD, THAT
THE IMPOSITION OF OBLIGATIONS TO WITHHOLD, REPORT, AND FILE RETURNS
PLACES A BURDEN ON THE ADMINISTRATION OF BANKRUPT ESTATES THAT IS AT
ODDS WITH ECONOMIC AND EXPEDITIOUS ADMINISTRATION AND WITH THE SPIRIT
OF THE ACT.  HE PLACES SOME RELIANCE, AS DID THE REFEREE, ON THE PAPER
BY REFEREE HILLER, THE FOLLY OF THE FOGARTY CASE, 32 REF. J. 54 (1958),
WHERE THE AUTHOR STATES THAT "THE APPLICATION OF THE FOGARTY RULE IS
SHEER NONSENSE" AND THAT THE CASE IS "OUT OF HARMONY WITH SOUND
BANKRUPTCY LAW."  ID. AT 54, 56.     THERE IS, OF COURSE, AN OVERRIDING
CONCERN IN THE ACT WITH KEEPING FEES AND ADMINISTRATIVE EXPENSES AT A
MINIMUM SO AS TO PRESERVE AS MUCH OF THE ESTATE AS POSSIBLE FOR THE
CREDITORS.  2A W. COLLIER, BANKRUPTCY PARA. 62.05(1), 62.02(5) (14TH
ED. 1972).  AND IT CANNOT BE DENIED THAT PAPERWORK TAKES TIME AND
OCCASIONS EXPENSE.  IN THIS PARTICULAR CASE, WITHHOLDING MUST BE
COMPUTED ON THE 413 WAGE CLAIMS; RETURNS (FORMS W - 2, W - 3, AND 941)
MUST BE PREPARED AND FURNISHED THE CLAIMANT AND THE INTERNAL REVENUE
SERVICE; RECORDS MUST BE MAINTAINED; AND THE TAXES WITHHELD MUST BE
REMITTED TO THE RESPECTIVE TAXING ENTITIES. 

WE ARE NOT PERSUADED, HOWEVER, THAT THIS BURDEN WOULD BE SO UNDUE AS
TO BE INCONSISTENT WITH OR VIOLATIVE OF THE SPIRIT OF THE ACT.  IT IS
THE SAME BURDEN, NO MORE AND NO LESS, THAT ANY EMPLOYER OF THE SAME
SIZE MUST BEAR, AND IT IS THE SAME BURDEN THAT IS BORNE BY ANY RECEIVER
OR ARRANGEMENT DEBTOR OR ANY OTHER FIDUCIARY WITH A LIKE NUMBER OF
EMPLOYEES.  THE BURDEN IS NOT DISPROPORTIONATE.  /7/  FURTHER, THE
INTERNAL REVENUE SERVICE HAS ENDEAVORED TO LIGHTEN THE LOAD BY ITS
ALTERNATIVE 25% COMBINED BANKRUPTCY WITHHOLDING RATE FOR INCOME AND
FICA TAXES.  SEE N. 2, SUPRA.  NEW YORK CITY HAS DONE THE SAME WITH ITS
1% WITHHOLDING RATE.  NEITHER SHOULD THE BURDEN MAKE IT NECESSARY, AS
IS SO OFTEN AND SO EASILY SUGGESTED, TO EMPLOY AN ACCOUNTANT. 
COMPUTATIONS AT THE RATES OF 25% AND 1%, RESPECTIVELY, ARE SIMPLE AND
ELEMENTARY ARITHMETIC EXERCISES, HARDLY WORTHY OF AN ACCOUNTANT'S
TALENT; A HIGH SCHOOL STUDENT IS ABLE TO MAKE THOSE COMPUTATIONS AS IS
ANY BOOKKEEPER, CLERK, OR THE TRUSTEE HIMSELF.  THE ADDED TASKS OF
WITHHOLDING, REPORTING, RETURNING, AND REMITTING ARE CONTEMPLATED, IN
OUR VIEW, BY THE ACT.  THE INTERESTS OF THE TAXING ENTITIES, WHO ARE
CREDITORS, TOO, AND, THROUGH THEM, THE INTERESTS OF THE PUBLIC OUTWEIGH
THE MINUSCULE ADDED BURDEN FOR THE ESTATE.  SEE SWARTS V. HAMMER, 194
U.S. 441, 444 (1904).  IF RELIEF IS TO BE CONSIDERED FOR BANKRUPT
ESTATES IN THIS RESPECT, IT IS A MATTER FOR LEGISLATIVE, NOT JUDICIAL,
CONCERN.  THERE IS NOTHING IN THE ACT OR IN THE INTERNAL REVENUE CODE
THAT RELIEVES THE TRUSTEE OF THESE DUTIES.  CF. 7507, 108(B), 371, AND
273 OF THE INTERNAL REVENUE CODE, 26 U.S.C. 7507, 108(B), 371, AND
372. 

        III

        PROOFS OF CLAIM 

THE TRUSTEE ASSERTS THAT BECAUSE THE UNITED STATES AND THE CITY
FAILED TO FILE PROOFS OF CLAIM FOR THE TAXES AT ISSUE, PAYMENT THEREOF
IS BARRED.  IT IS SAID THAT THESE TAXING ENTITIES WERE ON NOTICE, BY
REASON OF FREEDOMLAND'S BANKRUPTCY SCHEDULES, THAT THE BANKRUPT OWED
THE PRIORITY WAGE CLAIMS; THAT THESE CLAIMS WERE TO BE FILED WITHIN SIX
MONTHS; THAT THE ENTITIES COULD OBTAIN AN EXTENSION OF TIME, UNDER 57N
OF THE ACT, 11 U.S.C. 93(N), IN WHICH TO COMPUTE AND FILE THEIR CLAIMS;
AND THAT THEY CHOSE TO IGNORE THE REFEREE'S BAR ORDER DIRECTED, AMONG
OTHERS, TO "TAXING AUTHORITIES AND AGENCIES,"  APP. 24A. 

THIS ARGUMENT, IN OUR VIEW, MISCONCEIVES THE NATURE OF THE TAXES
THAT ARE TO BE WITHHELD.  LIABILITY FOR THE TAXES ACCRUES ONLY WHEN THE
WAGE IS PAID.  SECTIONS 3402(A) AND 3101(A) OF THE 1954 CODE; NEW YORK
CITY ADMINISTRATIVE CODE T46 - 51.0(A) AND U46 - 8.0.  THE WAGES THAT
ARE THE SUBJECT OF THE WAGE CLAIMS, ALTHOUGH EARNED BEFORE BANKRUPTCY,
WERE NOT PAID PRIOR TO BANKRUPTCY.  FREEDOMLAND HAD INCURRED NO
LIABILITY FOR THE TAXES.  LIABILITY CAME INTO BEING ONLY DURING
BANKRUPTCY.  THE TAXES DO NOT PARTAKE, THEREFORE, OF THE NATURE OF
DEBTS OF THE BANKRUPT FOR WHICH PROOFS OF CLAIM MUST BE FILED. 

FURTHERMORE, THE FILING OF PROOFS BY THE UNITED STATES AND NEW YORK
CITY OBVIOUSLY WOULD SERVE NO PURPOSE HERE.  PROOFS APPRISE THE TRUSTEE
AND OTHER CREDITORS OF THE EXISTENCE OF CLAIMS AGAINST THE ESTATE.  THE
PRIORITY WAGE CLAIMS THEMSELVES, HOWEVER, COVER THE GROSS WAGES EARNED
AND UNPAID.  THESE INCLUDE ANY TAX THAT IS TO BE WITHHELD.  THE TAX IS
NOT AN ADDED INCREMENT. 

WE CONCLUDE, THEREFORE, THAT PROOFS OF CLAIM ON THE PART OF THE
UNITED STATES AND OF NEW YORK CITY WITH RESPECT TO WITHHOLDING TAXES ON
PRIORITY WAGE CLAIMS ARE NOT REQUIRED. 

        IV 

WITH WITHHOLDING TAXES THUS DETERMINED AS PROPERLY APPLICABLE TO
PRIORITY WAGE CLAIMS, THEIR PLACEMENT IN THE PAYMENT SCALE UNDER 64A
MUST BE DETERMINED.  /8/  THE CHOICE LIES BETWEEN THE FIRST PRIORITY
(COSTS AND EXPENSES OF ADMINISTRATION), URGED BY THE UNITED STATES; THE
SECOND PRIORITY (WAGES AND COMMISSIONS, LIMITED AS THE STATUTE
SPECIFIES), URGED BY THE CITY OF NEW YORK; THE FOURTH PRIORITY ("TAXES
WHICH BECAME LEGALLY DUE AND OWING BY THE BANKRUPT"), URGED BY NONE OF
THE PARTIES HERE; AND NO PRIORITY AT ALL.  THE THIRD AND FIFTH
PRIORITIES CLEARLY HAVE NO POSSIBLE APPLICATION TO THESE TAXES. 

WE READILY REJECT THE FOURTH PRIORITY.  THE WITHHOLDING TAXES ARE
NOT TAXES WHICH BECAME DUE AND OWING BY THE BANKRUPT.  AS HAS BEEN
NOTED ABOVE, THE TAXES DID NOT BECOME DUE AND OWING AT ALL UNTIL THE
CLAIMS, CONSTITUTING WAGES, WERE PAID.  THIS TOOK PLACE AFTER
BANKRUPTCY, NOT BEFORE.  THE SITUATION, THUS, DIFFERS FROM THAT WHEN
THE BANKRUPT PAID WAGES PRIOR TO BANKRUPTCY, BUT THE TAXES WITHHELD
WERE NOT REMITTED TO THE TAXING ENTITIES BY THE TIME OF THE INCEPTION
OF THE BANKRUPTCY PROCEEDING.  THE LATTER WOULD BE TAXES WHICH BECAME
LEGALLY DUE AND OWING BY THE BANKRUPT."  SEE IN RE JOHN HORNE CO., 220
F.2D 33 (CA7 1955); POMPER V. UNITED STATES, 196 F.2D 211 (CA2 1952). 

WE SIMILARLY REJECT THE FIRST PRIORITY, ALTHOUGH WE RECOGNIZE THAT
THIS APPEARS TO BE THE FAVORITE CONCLUSION REACHED BY THOSE COURTS THAT
HAVE PASSED UPON THE ISSUE.  SEE N. 3, SUPRA.  THE LEADING CASE FOR
THIS APPROACH IS UNITED STATES V. FOGARTY, SUPRA.  THE COURT THERE,
HOWEVER, WITHOUT A STATEMENT OF UNDERLYING REASONS, MERELY CONCLUDED
THAT THE TAXES "SHOULD BE ALLOWED AND CLASSIFIED AS AN EXPENSE OF
ADMINISTRATION," 164 F.2D, AT 33.  IN LINES V. CALIFORNIA DEPT. OF
EMPLOYMENT, SUPRA, THE COURT FOLLOWED FOGARTY AND HELD THAT, BECAUSE
THE TAX ACCRUED "SUBSEQUENT TO THE FILING OF THE PETITION IN
BANKRUPTCY, SUCH TAX HAD THE CHARACTER OF AN EXPENSE OF
ADMINISTRATION."  246 F.2D, AT 71. 

WE THINK THAT MORE THAN A GENERAL OBSERVATION THAT THE TAXES AROSE
DURING BANKRUPTCY IS REQUIRED TO DIGNIFY WITHHOLDING TAXES WITH THE
PRIME STATUS OF FIRST PRIORITY.  WE GRANT THAT THE VERY LANGUAGE OF
64A(1) ("INCLUDING THE ACTUAL AND NECESSARY COSTS AND EXPENSES OF
PRESERVING THE ESTATE SUBSEQUENT TO FILING THE PETITION") NECESSARILY
INDICATES THAT FIRST PRIORITY ITEMS INCLUDE SOME IN ADDITION TO THOSE
THAT PRESERVE OR DEVELOP THE BANKRUPT ESTATE.  WITHHOLDING TAXES
HOWEVER, DO NOT STRIKE US AS COSTS OR EXPENSES OF DOING BUSINESS.  THEY
ARE ATTRIBUTABLE IN THEIR ENTIRETY TO THE AVAILABILITY OF FUNDS FOR
PAYMENT OF PRIORITY WAGE CLAIMS.  THEY ACCRUE ONLY AS THOSE CLAIMS ARE
PAID AND, TO THE EXTENT OF THAT PAYMENT, OF THE TAXES SHOULD BE
ASSURED.  IN ADDITION, IT IS ANOMALOUS TO ACCORD WITHHOLDING TAXES A
HIGHER PRIORITY THAN THE WAGE CLAIMS TO WHICH THEY SO DIRECTLY RELATE. 
THEY CAN BE COMPUTED ONLY UPON THE AMOUNT OF FUNDS AVAILABLE FOR
PAYMENT OF THE WAGE CLAIMS AND SHOULD NOT HAVE A COMPUTATIONAL BASE
GREATER THAN THOSE PAYMENTS.  THE WITHHOLDING TAXES ARE, IN FULL
EFFECT, PART OF THE CLAIMS THEMSELVES AND DERIVE FROM AND ARE CARVED
OUT OF THE  PAYMENT OF THOSE CLAIMS.  WE THEREFORE FULLY AGREE WITH THE
SECOND CIRCUIT'S OBSERVATION, 480 F.2D, AT 190:  "CONCEPTUALLY THE TAX
PAYMENTS SHOULD BE TREATED IN THE SAME WAY AS THE WAGES FROM  WHICH
THEY DERIVE AND OF WHICH THEY ARE A PART" 

WE SEE NOTHING IN UNITED STATES V. RANDALL, 401 U.S. 513 (1971),
WITH ITS OBSERVATION, ID., AT 515, THAT THE BANKRUPTCY ACT "IS AN
OVERRIDING STATEMENT OF FEDERAL POLICY ON THIS QUESTION OF PRIORITIES,:
THAT IS CONTRARY TO THE RESULT WE REACH HERE.  THAT CASE CONCERNED
7501(A) OF THE INTERNAL REVENUE CODE, 26 U.S.C. 7501(A), WITH ITS
PROVISION FOR A TRUST FUND FOR WITHHELD TAXES, AND THE IMPACT OF THAT
STATUTE, WHEN NOT COMPLIED WITH, UPON PAYMENT OF FIRST PRIORITY COSTS
AND EXPENSES OF ADMINISTRATION.  RANDALL IS NOT A HOLDING, AS THE
TRUSTEE WOULD CLAIM, BRIEF FOR PETITIONER 18 - 19, THAT THE WITHHOLDING
TAXES DO NOT HAVE THE SAME PRIORITY AS THE WAGE CLAIMS THEMSELVES. 

WE THEREFORE CONCLUDE THAT THESE FEDERAL AND CITY WITHHOLDING TAXES
ARE ENTITLED, AS ARE THE PRIORITY WAGE CLAIMS FROM WHICH THEY EMERGE,
TO SECOND PRIORITY OF PAYMENT UNDER 64A(2) OF THE ACT, 11 U.S.C.
104(A).  /9/ 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  "104.  DEBTS WHICH HAVE PRIORITY. 

(A) THE DEBTS TO HAVE PRIORITY, IN ADVANCE OF THE PAYMENT OF
DIVIDENDS TO CREDITORS, AND TO BE PAID IN FULL OUT OF BANKRUPT ESTATES,
AND THE ORDER OF PAYMENT, SHALL BE (1) THE COSTS AND EXPENSES OF
ADMINISTRATION, INCLUDING THE ACTUAL AND NECESSARY COSTS AND EXPENSES
OF PRESERVING THE ESTATE SUBSEQUENT TO FILING THE PETITION . . .; (2)
WAGES AND COMMISSIONS, NOT TO EXCEED $600 TO EACH CLAIMANT, WHICH HAVE
BEEN EARNED WITHIN THREE MONTHS BEFORE THE DATE OF THE COMMENCEMENT OF
THE PROCEEDING, DUE TO WORKMEN . . .; (4) TAXES WHICH BECAME LEGALLY
DUE AND OWING BY THE BANKRUPT TO THE UNITED STATES OR TO ANY STATE OR
ANY SUBDIVISION THEREOF WHICH ARE NOT RELEASED BY A DISCHARGE IN
BANKRUPTCY . . . ." 

/2/  UNDER INTERNAL REVENUE SERVICE DIRECTIVES, A TRUSTEE IN
BANKRUPTCY, UPON PAYING PRIORITY WAGE CLAIMS, HAS THE OPTION OF
WITHHOLDING INCOME AND FICA TAXES EITHER AT A COMBINED FLAT RATE OF 25%
OR AT THE RATES PRESCRIBED BY 3101 AND 3402 OF THE CODE, 26 U.S.C. 3101
AND 3402. 

/3/  FIRST PRIORITY:  UNITED STATES V. FOGARTY, 164 F.2D 26, 33 (CA8
1947); LINES V. CALIFORNIA DEPT. OF EMPLOYMENT, 242 F.2D 201, 203, REH.
DEN., 246 F.2D 70 (CA9), CERT. DENIED, 355 U.S. 857 (1957).  SECOND
PRIORITY:  IN RE FREEDOMLAND, INC., 480 F.2D 184, 190 (CA2 1973). 
FOURTH PRIORITY:  IN RE CONNECTICUT MOTOR LINES, INC., 336 F.2D 96, 102
- 106, 108 (CA3 1964). 

IN IN RE JOHN HORNE CO., 220 F.2D 33, 35 (CA7 1955), A CASE
CONCERNING WAGES PAID PRIOR TO BANKRUPTCY, THE COURT STATES, "WE ARE
NOT IMPRESSED WITH THE REASONING OF THE COURT IN THE FOGARTY CASE.# SEE
ALSO NOTE, 56 MICH.L.REV.  631 (1958); COMMENT, BANKRUPTCY--PRIORITIES-
FOURTH PRIORITY ASSIGNED PAYROLL TAXES ON SECOND PRIORITY WAGES, 40
N.Y.U.L.REV.  360 (1965); NOTE, 19 RUTGERS L.REV.  546 (1965). 

/4/  THE TERMS "WAGES" AND "EMPLOYER," AS THEY APPEAR IN TITLES T
AND U OF THE CITY CODE ARE GIVEN THE SAME MEANINGS THEY HAVE IN THE
INTERNAL REVENUE CODE.  NEW YORK CITY ADMINISTRATIVE CODE T46 - 1.0(C)
AND U46 - 1.0(B), (E), AND (L) (1971). 

/5/  WE SEE NOTHING TO THE CONTRARY IN UNITED STATES V. EMBASSY
RESTAURANT, INC., 359 U.S. 29 (1959), WHICH IS PRESSED UPON US BY THE
TRUSTEE.  THE ISSUE THERE WAS WHETHER CONTRIBUTIONS BY AN EMPLOYER TO A
UNION WELFARE FUND, AS REQUIRED UNDER A COLLECTIVE-BARGAINING
AGREEMENT, WERE ENTITLED TO SECOND PRIORITY "WAGES . . . DUE TO
WORKMEN."  THERE IS NO SUCH ISSUE HERE, FOR THE TRUSTEE ACKNOWLEDGES,
AS HE MUST, THAT THE PRESENT CLAIMS ARE, INDEED, FOR "WAGES," WITHIN
THE MEANING OF THE BANKRUPTCY ACT. 

/6/  "THE RESULT WOULD BE NO DIFFERENT IF IT IS ARGUED THAT THE
BANKRUPTCY COURT RATHER THAN ITS TRUSTEE IS 'THE PERSON HAVING CONTROL
OF THE PAYMENT OF SUCH WAGES.'  THERE IS NO PROVISION EXCEPTING A COURT
FROM THE REQUIREMENT OF WITHHOLDING ON AMOUNTS PAID AN EMPLOYEE." 
UNITED STATES V. FOGARTY, 164 F.2D, AT 32. 

/7/  THE DISTRICT COURT, ON REVIEW OF THE REFEREE'S ORDER AND
DECISION, RECEIVED EVIDENCE WITH RESPECT TO COSTS OF COMPLIANCE.  IT
CONCLUDED THAT COMPLIANCE "ADDS ONLY SLIGHTLY TO THE TRUSTEE'S
INESCAPABLE TASK AND COST OF VERIFYING EACH CLAIM BEFORE PAYMENT.#341
F.SUPP.  647, 654 (SDNY 1972). 

/8/ THE TRUSTEE HAS PAID THE PRIORITY WAGE CLAIMS, WITH THE TAXES
WITHHELD AND SET ASIDE.  THIS WAS DONE, HOWEVER, PURSUANT TO AN
AGREEMENT THAT THE RIGHTS OF THE PARTIES WOULD NOT BE AFFECTED
THEREBY.  THE UNITED STATES, THEREFORE, IS NOT IN A POSITION TO CLAIM
THAT A TRUST FUND HAS BEEN ESTABLISHED UNDER 7501(A) OF THE INTERNAL
REVENUE CODE, 26 U.S.C. 7501(A).  SEE UNITED STATES V. RANDALL, 401
U.S. 513 (1971); NICHOLAS V. UNITED STATES, 384 U.S. 678, 690 - 691
(1966). 

/9/  THIS CONCLUSION MAKES IT UNNECESSARY FOR US TO CONSIDER
WHETHER, IF THE GOVERNMENT WERE TO PREVAIL IN ITS FIRST-PRIORITY
ARGUMENT, THE JUDGMENT OF THE COURT OF APPEALS HERE COULD BE MODIFIED
IN THE ABSENCE OF A CROSS-PETITION BY THE UNITED STATES.  WE ARE
ADVISED THAT THE BANKRUPT ESTATE'S ASSETS ARE SUFFICIENT TO PAY ALL
FIRST AND SECOND PRIORITY CLAIMS IN FULL.  TR. OF ORAL ARG. 28 - 29. 
WHETHER THE WITHHOLDING TAXES HAVE FIRST- RATHER THAN SECOND-PRIORITY
STATUS IS, THEREFORE, OF NO PRACTICAL CONSEQUENCE TO THE GOVERNMENT IN
THE PRESENT CASE. 

HOWARD KARASIK ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

KEITH A. JONES ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
CRAMPTON, AND CROMBIE J. D. GARRETT.  SAMUEL J. WARMS ARGUED THE CAUSE
FOR RESPONDENT CITY OF NEW YORK.  WITH HIM ON THE BRIEF WERE ADRIAN P.
BURKE, RAYMOND HERZOG, AND CORNELIUS F. ROCHE. 
..END :










FRANCISCO V. GATHRIGHT, 419 U.S. 59 


       FRANCISCO V. GATHRIGHT, CORRECTIONAL SUPERINTENDENT

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 73 - 5768.  ARGUED OCTOBER 15, 1974--DECIDED NOVEMBER

19, 1974; REVERSED AND REMANDED. 


    PETITIONER BROUGHT THIS FEDERAL HABEAS CORPUS ACTION, CLAIMING

  THE UNCONSTITUTIONALITY OF A STATE STATUTE UNDER WHICH HE HAD

  BEEN CONVICTED OF A DRUG VIOLATION.  THE COURT OF APPEALS UPHELD

  THE DISTRICT COURT'S RULING THAT PETITIONER'S CHALLENGE SHOULD BE

  RESUBMITTED TO THE STATE COURTS IN THE LIGHT OF A STATE SUPREME

  COURT DECISION (ISSUED AFTER THAT COURT HAD DECLINED TO REVIEW

  PETITIONER'S CONVICTION ON DIRECT APPEAL BUT BEFORE PETITIONER

HAD FILED HIS HABEAS PETITION) HOLDING THE STATE STATUTE

CONSTITUTIONALLY INVALID.  HELD:  SINCE THE STATE COURTS HAD A

  FULL OPPORTUNITY TO DETERMINE THE FEDERAL CONSTITUTIONAL ISSUE

  BEFORE PETITIONER RESORTED TO THE FEDERAL FORUM, NO SUBSTANTIAL

  STATE INTEREST WOULD BE SERVED BY REQUIRING PETITIONER TO

  RESUBMIT HIS CONSTITUTIONAL CLAIM TO THE STATE COURTS.  ROBERTS

  V. LAVALLEE, 389 U.S. 40. 

PER CURIAM. 

PETITIONER WAS CONVICTED IN A VIRGINIA STATE COURT OF POSSESSION OF
HEROIN WITH INTENT TO DISTRIBUTE, /1/  AND WAS SENTENCED TO EIGHT YEARS
IN PRISON.  THE SUPREME COURT OF VIRGINIA DENIED REVIEW AND AFFIRMED
THE CONVICTION BY ORDER, AND PETITIONER THEN SOUGHT FEDERAL HABEAS
CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA. 

IN THAT COURT HE CONTENDED THAT THE JUDGMENT OF CONVICTION UNDER
WHICH HE WAS HELD WAS SUBJECT TO TWO CONSTITUTIONAL INFIRMITIES.  HIS
FIRST CLAIM WAS THAT THE STATE STATUTE UNDER WHICH HE HAD BEEN
CONVICTED VIOLATED HIS FOURTEENTH AMENDMENT RIGHTS INSOFAR AS IT
PERMITTED THE JURY TO BASE THE CONVICTION "SOLELY UPON EVIDENCE AS TO
THE QUANTITY OF ANY CONTROLLED DRUGS OR DRUGS UNLAWFULLY POSSESSED." 
/2/  HIS SECOND CLAIM WAS THAT EVIDENCE ADMITTED AT HIS TRIAL HAD BEEN
OBTAINED AS A RESULT OF AN UNLAWFUL SEARCH AND SEIZURE IN VIOLATION OF
HIS RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS. 

RESPONDENT CONCEDED THAT PETITIONER HAD "EXHAUSTED HIS STATE COURT
REMEDIES,"  APP. 11, BUT NEVERTHELESS URGED THE DISTRICT COURT TO
DISMISS THE PETITION IN ORDER TO PERMIT THE PETITIONER TO PRESENT HIS
DUE PROCESS ARGUMENT TO THE STATE COURTS FOR RECONSIDERATION IN LIGHT
OF THE DECISION OF THE SUPREME COURT OF VIRGINIA IN SHARP V.
COMMONWEALTH, 213 VA. 269, 192 S.E.2D 217 (1972).  IN SHARP, WHICH WAS
DECIDED AFTER THE VIRGINIA SUPREME COURT HAD DECLINED TO REVIEW
PETITIONER'S CONVICTION ON DIRECT APPEAL, BUT BEFORE HE HAD FILED HIS
PETITION FOR A WRIT OF HABEAS CORPUS IN THE DISTRICT COURT, /3/  THE
VIRGINIA SUPREME COURT HELD 54 - 524.101(A) TO BE VIOLATIVE OF BOTH THE
STATE AND FEDERAL CONSTITUTIONS.  /4/ 

THE DISTRICT COURT RULED AGAINST PETITIONER ON THE MERITS OF HIS
SEARCH-AND-SEIZURE CLAIM, AND AGREED WITH RESPONDENT THAT THE CHALLENGE
TO THE STATUTE SHOULD BE RESUBMITTED TO THE VIRGINIA STATE COURTS.  IT
THEREFORE GRANTED SUMMARY JUDGMENT IN FAVOR OF RESPONDENT WITHOUT
PASSING ON PETITIONER'S CLAIM THAT THE STATUTE WAS INVALID UNDER THE
FOURTEENTH AMENDMENT.  /5/ 

PETITIONER APPEALED TO THE COURT OF APPEALS FOR THE FOURTH CIRCUIT. 
THAT COURT, IN AN UNREPORTED DECISION, AGREED THAT THE STATE COURT
SHOULD HAVE AN OPPORTUNITY TO RE-EXAMINE PETITIONER'S CLAIM IN THE
LIGHT OF SHARP, SUPRA, AND WENT ON TO HOLD THAT THE DISTRICT COURT HAD
ACTED PREMATURELY IN REACHING THE INDEPENDENT FEDERAL CLAIM OF UNLAWFUL
SEARCH AND SEIZURE.  IT SAID:

  IF RELIEF IS GRANTED UNDER SHARP, THE STATE WILL HAVE THE OPTION
OF RELEASING FRANCISCO OR

  RETRYING HIM.  IN EITHER EVENT THE POSSIBILITY EXISTS THAT THIS
CLAIM FOR RELIEF WILL BE

  MOOTED."  APP. 51 

THE COURT VACATED THAT PORTION OF THE DISTRICT COURT'S OPINION
RULING ON THE MERITS OF PETITIONER'S SECOND CLAIM, AND REMANDED THE
CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE PETITION
WITHOUT PREJUDICE.  WE GRANTED CERTIORARI.  415 U.S. 957 (1974). 

PETITIONER PRESENTS TWO CONTENTIONS HERE.  HE FIRST CONTENDS THAT
THE DISTRICT COURT AND THE COURT OF APPEALS WERE WRONG IN REQUIRING HIM
TO RESUBMIT HIS CONSTITUTIONAL ATTACK ON THE VIRGINIA STATUTE TO THE
STATE COURTS.  WE AGREE WITH PETITIONER ON THIS POINT, SINCE WE BELIEVE
THAT THE PROPER DISPOSITION OF HIS CLAIM OF STATUTORY INVALIDITY IS
CONTROLLED BY ROBERTS V. LAVALLEE, 389 U.S. 40 (1967).  IN ROBERTS THE
PETITIONER WAS DENIED A TRANSCRIPT OF HIS PRELIMINARY HEARING BECAUSE
HE WAS UNABLE TO PAY THE FEE REQUIRED UNDER NEW YORK LAW.  WHEN HIS
EQUAL PROTECTION CHALLENGE TO THE NEW YORK STATUTE WAS REJECTED ON
DIRECT APPEAL, HE SOUGHT HABEAS RELIEF IN FEDERAL COURT.  AFTER THE
UNITED STATES DISTRICT COURT DENIED THE WRIT, IN ANOTHER CASE THE NEW
YORK COURT OF APPEALS FOUND THE STATUTE UNCONSTITUTIONAL UNDER BOTH THE
FEDERAL AND STATE CONSTITUTIONS.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT DISMISSED THE PETITION IN ORDER TO PERMIT ROBERTS TO APPLY TO
THE STATE COURTS FOR RELIEF UNDER THE INTERVENING STATE COURT
DECISION.  THIS COURT REVERSED, SAYING: 

"PETITIONER HAS ALREADY THOROUGHLY EXHAUSTED HIS STATE REMEDIES, AS
THE COURT OF APPEALS RECOGNIZED.  STILL MORE STATE LITIGATION WOULD BE
BOTH UNNECESSARILY TIME-CONSUMING AND OTHERWISE BURDENSOME.  THIS IS
NOT A CASE IN WHICH THERE IS ANY SUBSTANTIAL STATE INTEREST IN RULING
ONCE AGAIN ON PETITIONER'S CASE."  ID., AT 43. 

THE ONLY DISTINCTION BETWEEN THE PRESENT CASE AND ROBERTS IS THAT
HERE THE INTERVENING STATE COURT DECISION CAME DOWN BEFORE PETITIONER
FILED HIS PETITION FOR HABEAS RELIEF IN FEDERAL COURT, WHEREAS IN
ROBERTS THE STATE DECISION ISSUED AFTER THE HABEAS PETITION HAD BEEN
ACTED UPON BY THE DISTRICT COURT.  THIS DISTINCTION DOES NOT ALTER THE
RESULT AS TO THE EXHAUSTION REQUIREMENT.  IN BOTH CASES THE STATE
COURTS HAD A FULL OPPORTUNITY TO DETERMINE THE FEDERAL CONSTITUTIONAL
ISSUES BEFORE RESORT WAS MADE TO A FEDERAL FORUM, AND THE POLICIES
SERVED BY THE EXHAUSTION REQUIREMENT WOULD NOT BE FURTHERED BY
REQUIRING RESUBMISSION OF THE CLAIMS TO THE STATE COURTS.  /6/
ROBERTS, SUPRA; BROWN V. ALLEN, 344 U.S. 443, 7 - 450 (1953); PICARD V.
CONNOR, 404 U.S. 270, 275 (1971). 

THE SECOND QUESTION PRESENTED BY PETITIONER IN THIS COURT IS
"WHETHER A PERSON . . . WHO CLAIMS THAT (HIS) CUSTODY IS, IN TWO
INDEPENDENT RESPECTS, IN VIOLATION OF THE CONSTITUTION OF THE UNITED
STATES, MUST AWAIT FEDERAL HABEAS CORPUS RELIEF ON ONE GROUND MERELY
BECAUSE THE OTHER GROUND SHOULD HAVE BEEN PRESENTED TO THE STATE
COURTS."  BRIEF FOR PETITIONER 2.  PETITIONER APPARENTLY ATTRIBUTES THE
REFUSAL OF THE COURT OF APPEALS TO RULE ON THE MERITS OF HIS SECOND
CLAIM T ITS CONCLUSION THAT PETITIONER WAS REQUIRED AGAIN TO SUBMIT HIS
FIRST CLAIM TO THE STATE COURTS.  SINCE WE HAVE HELD THAT PETITIONER'S
CLAIM OF STATUTORY INVALIDITY NEED NOT BE PRESENTED AGAIN TO THE STATE
COURTS BEFORE BEING ADJUDICATED BY THE FEDERAL HABEAS COURT, THE CASE
IN ITS PRESENT POSTURE NO LONGER PRESENTS THE QUESTION FRAMED BY
PETITIONER, AND WE HAVE NO OCCASION TO ADDRESS IT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CAUSE IS
REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  PETITIONER WAS CONVICTED OF VIOLATING VA. CODE ANN. 54 -
524.101(A) (1950).  AT THE TIME HE WAS CHARGED, THAT STATUTE PROVIDED
IN RELEVANT PART: 

"EXCEPT AS AUTHORIZED BY THIS CHAPTER, IT SHALL BE UNLAWFUL FOR ANY
PERSON KNOWINGLY OR INTENTIONALLY:  (1) TO DISTRIBUTE, OR TO POSSESS
WITH INTENT TO DISTRIBUTE, A CONTROLLED DRUG.  . . . A CONVICTION FOR A
VIOLATION OF THIS 54 - 524.101(A) MAY BE BASED SOLELY UPON EVIDENCE AS
TO THE QUANTITY OF ANY CONTROLLED DRUG OR DRUGS UNLAWFULLY POSSESSED." 

THE STATUTE HAS SINCE BEEN REPEALED.  VA. ACTS 1972, C 798. 

/2/  THE TRIAL COURT INSTRUCTED THE JURY: 

"THE COURT INSTRUCTS THE JURY THAT A CONVICTION FOR POSSESSION OF A
CONTROLLED DRUG WITH INTENT TO DISTRIBUTE MAY BE BASED SOLELY UPON THE
EVIDENCE AS TO THE QUANTITY OF THE CONTROLLED DRUG UNLAWFULLY
POSSESSED."  APP. 19. 

/3/  THE HABEAS PETITION, ACCOMPANIED BY A MOTION TO PROCEED IN
FORMA PAUPERIS, WAS ACTUALLY RECEIVED BY THE UNITED STATES DISTRICT
COURT ON OCTOBER 51972FOUR DAYS BEFORE SHARP WAS DECIDED.  ON OCTOBER
26 PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS WAS DENIED.  UPON
RECEIPT OF THE FILING FEE ON OCTOBER 31, THE CLERK OF THE UNITED STATES
DISTRICT COURT FILED THE HABEAS PETITION. 

/4/  THE SUPREME COURT OF VIRGINIA FOUND THE STATUTE
UNCONSTITUTIONALLY VAGUE BECAUSE "A PERSON OF ORDINARY INTELLIGENCE IN
POSSESSION OF A QUANTITY OF MARIJUANA COULD NOT WITH REASONABLE
CERTAINTY KNOW WHETHER HE WAS GUILTY OF THE MISDEMEANOR OF MERE
POSSESSION OR THE FELONY OF POSSESSION WITH INTENT TO DISTRIBUTE."  213
VA., AT 271, 192 S.E.2D, AT 218.  THE COURT ALSO CONCLUDED THAT THE
"STATUTORY INFERENCE OR PRESUMPTION OF POSSESSION WITH INTENT TO
DISTRIBUTE DID NOT HAVE SUFFICIENT RATIONAL CONNECTION WITH THE FACT OF
POSSESSION OF A QUANTITY OF A CONTROLLED DRUG."  IBID.  THE VIRGINIA
COURT CITED FEDERAL AND STATE DECISIONS TO SUPPORT ITS HOLDING, AND AT
ORAL ARGUMENT THE PARTIES AGREED THAT SHARP RESTS ON BOTH STATE AND
FEDERAL CONSTITUTIONAL GROUNDS.  WE, OF COURSE, EXPRESS NO VIEW ON THE
CORRECTNESS OF THIS HOLDING INSOFAR AS IT RESTS ON AN INTERPRETATION OF
THE FOURTEENTH AMENDMENT. 

/5/  SINCE PETITIONER HAD PRESENTED THE ISSUE ONCE TO THE STATE
COURTS, THE DISTRICT COURT GRANTED HIM LEAVE TO REINSTITUTE THE
PETITION IN FEDERAL COURT UNLESS THE STATE GRANTED HIM A HEARING WITHIN
45 DAYS.  THE STATE SOUGHT TO INITIATE STATE HABEAS PROCEEDINGS THE
FOLLOWING DAY, BUT PETITIONER REFUSED TO FILE A HABEAS PETITION IN
STATE COURT AND INDICATED THAT HE WOULD NOT COOPERATE WITH STATE
AUTHORITIES. 

/6/  WE ARE NOT PRESENTED WITH A CASE "IN WHICH AN INTERVENING
CHANGE IN FEDERAL LAW CAST THE LEGAL ISSUE IN A FUNDAMENTALLY DIFFERENT
LIGHT."  PICARD V. CONNOR, 404 U.S. 270, 276 (1971). 

DANIEL C. KAUFMAN ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

ROBERT E. SHEPHERD, JR., ARGUED THE CAUSE FOR RESPONDENT.  ON THE
BRIEF WERE ANDREW P. MILLER, ATTORNEY GENERAL OF VIRGINIA, AND GILBERT
W. HAITH, ASSISTANT ATTORNEY GENERAL. 
..END :















RING V. UNITED STATES, 419 U.S. 18 


       RING V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 73 - 6969.  DECIDED NOVEMBER 11, 1974; CERTIORARI

           GRANTED; VACATED AND REMANDED 


    WHERE THE ASSISTANT UNITED STATES ATTORNEY PROSECUTING

  PETITIONER DENIED DURING THE TRIAL THAT TWO COUNTS OF A

  THREE-COUNT INDICTMENT AGAINST THE GOVERNMENT'S CHIEF WITNESS

  INVOLVING THE SAME EVENTS FOR WHICH PETITIONER WAS CONVICTED HAD

  BEEN DROPPED IN RETURN FOR THE WITNESS' COOPERATION AND

  TESTIMONY, BUT THE UNITED STATES ATTORNEY'S RECORDS INDICATED

  THAT THE ASSISTANT HAD AGREED TO DROP TWO COUNTS IN RETURN FOR A

  GUILTY PLEA TO THE THIRD COUNT, THE COURT OF APPEALS' JUDGMENT

  AFFIRMING PETITIONER'S CONVICTION IS VACATED AND THE CASE IS

  REMANDED TO THAT COURT SO THAT IF ON THE BASIS OF GOVERNMENT

  DOCUMENTATION IT IS UNABLE TO DECIDE WHETHER THE ASSISTANT

  "FAILED TO MAKE ANY REQUIRED DISCLOSURE," IT CAN REMAND THE CASE

 TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS. 

PER CURIAM. 

PETITIONER WAS CONVICTED ON ONE COUNT OF CONSPIRACY TO IMPORT
COCAINE IN VIOLATION OF 84 STAT. 1260, 21 U.S.C. 841(A)(1), AND 84
STAT, 1285, 32 U.S.C. 952(A).  AT TRIAL, THE GOVERNMENT'S CHIEF WITNESS
AGAINST PETITIONER TESTIFIED ON DIRECT EXAMINATION BY THE ASSISTANT
UNITED STATES ATTORNEY THAT NO PROMISES HAD BEEN MADE TO HER WITH
RESPECT TO THREE COUNTS OF AN INDICTMENT THAT HAD BEEN RETURNED AGAINST
HER INVOLVING THE SAME EVENTS FOR WHICH PETITIONER STANDS CONVICTED. 
AT THE TIME THIS WITNESS TESTIFIED, SHE HAD PLEADED GUILTY TO ONE COUNT
OF THAT INDICTMENT, A FACT WHICH SHE ACKNOWLEDGED.  ON CROSS
EXAMINATION, SHE REPEATED HER STATEMENT TO THE EFFECT THAT NO PROMISES
HAD BEEN MADE TO HER.  DURING SUMMATION, PETITIONER'S COUNSEL INDICATED
THAT THE TWO OTHER COUNTS AGAINST THE WITNESS HAD BEEN DROPPED IN
RETURN FOR HER COOPERATION AND TESTIMONY IN PETITIONER'S CASE.  THE
ASSISTANT UNITED STATES ATTORNEY, IN HER SUMMATION, STATED
CATEGORICALLY THAT THE TWO OTHER COUNTS HAD NOT IN FACT BEEN DROPPED. 
THE COURT OF APPEALS AFFIRMED THE CONVICTION. 

AS THE CASE COMES TO THIS COURT, THE SOLICITOR GENERAL STATES THAT
THE RECORDS OF THE UNITED STATES ATTORNEY IN WHOSE DISTRICT THE CASE
WAS TRIED INDICATE THAT THE SAME ASSISTANT UNITED STATES ATTORNEY WHO
TRIED THE CASE HAD ENTERED INTO AN AGREEMENT WITH THE WITNESS WHEREBY
THE GOVERNMENT HAD AGREED TO DROP TWO COUNTS OF THE INDICTMENT IN
RETURN FOR A GUILTY PLEA ON A THIRD COUNT.  THE WITNESS HAD ENTERED A
GUILTY PLEA ABOUT ONE MONTH PRIOR TO THE PETITIONER'S TRIAL.  THE
SOLICITOR GENERAL STATES THAT BECAUSE "THE EXISTENCE OF SUCH AN
AGREEMENT, ITS TERMS, AND (THE WITNESS) RUBIO'S KNOWLEDGE OF IT, CANNOT
BE DETERMINED ON THE RECORD BEFORE THIS COURT . . . ," THERE IS NO
OCCASION FOR THIS COURT TO CONSIDER WHETHER THE ASSISTANT UNITED STATES
ATTORNEY "FAILED TO MAKE ANY REQUIRED DISCLOSES."  THE BETTER COURSE,
HOWEVER, IS TO VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE TO THAT COURT.  IF, ON THE BASIS OF DOCUMENTATION OFFERED BY
THE GOVERNMENT ON REMAND, THAT COURT IS UNABLE TO DISPOSE OF THE
QUESTION PRESENTED FOR THE FIRST TIME HERE, THAT COURT WOULD BE FREE TO
REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER APPROPRIATE
PROCEEDINGS. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR
A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF APPEALS
IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION. 
..END :















UNITED STATES V. AMERICAN FRIENDS SERVICE COM., 419 U.S. 7 


       UNITED STATES V. AMERICAN FRIENDS SERVICE COMMITTEE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF PENNSYLVANIA

       NO. 73 - 1791.  DECIDED OCTOBER 29, 1974; 368 F.SUPP.  1176,

           REVERSED IN PART. 


    APPELLEE EMPLOYEES, CONSCIENTIOUS OBJECTORS, PURSUANT TO WHOSE

  REQUEST APPELLEE RELIGIOUS CORPORATION, THEIR EMPLOYER, AGREED TO

  CEASE WITHHOLDING UNDER 26 U.S.C. 3402 A PORTION OF THEIR WAGES

  DEEMED ALLOCABLE TO MILITARY EXPENDITURES, SOUGHT INJUNCTIVE

  RELIEF CLAIMING THAT ENFORCEMENT OF 3402 DEPRIVED THEM OF THEIR

  FIRST AMENDMENT RIGHTS TO BEAR WITNESS TO THEIR RELIGIOUS BELIEFS

  OPPOSING WAR.  THE DISTRICT COURT ENTERED JUDGMENT FOR THE

  EMPLOYEES.  HELD:  THE ANTI-INJUNCTION ACT, 26 U.S.C. 7421(A),

 WHICH PROHIBITS SUITS "FOR THE PURPOSE OF RESTRAINING THE

  ASSESSMENT OR COLLECTION OF ANY TAX," BARS THE RELIEF GRANTED TO

  THE EMPLOYEES, BOB JONES UNIVERSITY V. SIMON, 416 U.S. 725;

  COMMISSION V. "AMERICANS UNITED" INC., 416 U.S. 752; AND SINCE

  THE EMPLOYEES CONCEDEDLY CANNOT SHOW THAT THE GOVERNMENT WOULD

  NOT PREVAIL IN A REFUND ACTION, THEY DO NOT QUALIFY FOR A

  JUDICIAL EXCEPTION TO 7421(A) UNDER THE RULES PRESCRIBED BY

  ENOCHS V. WILLIAMS PACKING & NAVIGATION CO., 370 U.S. 1. 

PER CURIAM. 

APPELLEE AMERICAN FRIENDS SERVICE COMMITTEE (EMPLOYER) IS A
RELIGIOUS CORPORATION, WHOSE PRINCIPAL OPERATION IS PHILANTHROPIC WORK
AND MANY OF WHOSE EMPLOYEES ARE CONSCIENTIOUS OBJECTORS TO WAR,
PERFORMING ALTERNATE CIVILIAN SERVICE.  APPELLEES LORRAINE CLEVELAND
AND LEONARD CADWALLADER (EMPLOYEES) ARE PRESENT OR PAST EMPLOYEES OF
THE EMPLOYER. 

BECAUSE OF THEIR RELIGIOUS BELIEFS, EMPLOYEES IN 1969 REQUESTED
THEIR EMPLOYER TO CEASE WITHHOLDING 51.6% /1/  OF THE PORTION OF THEIR
WAGES REQUIRED TO BE WITHHELD UNDER 3402 OF THE INTERNAL REVENUE CODE. 
/2/  ALTHOUGH THEY CONCEDED THAT THESE AMOUNTS WERE LEGALLY DUE TO THE
GOVERNMENT, THEY WISHED TO BEAR WITNESS TO THEIR BELIEFS BY REPORTING
THE AMOUNTS AS TAXES OWED ON THEIR ANNUAL INCOME TAX RETURNS BUT
REFUSING TO PAY SUCH AMOUNTS.  THEY WOULD THUS COMPEL THE GOVERNMENT TO
LEVY IN ORDER TO COLLECT THE TAXES. 

IN RESPONSE TO THE EMPLOYEES' REQUEST, THE EMPLOYER CEASED
WITHHOLDING FROM THE EMPLOYEES' SALARIES 51.6% OF THAT AMOUNT REQUIRED
TO BE WITHHELD UNDER 3402, ALTHOUGH IT CONTINUED TO PAY THE FULL AMOUNT
REQUIRED TO BE WITHHELD UNDER THAT PROVISION TO THE GOVERNMENT.  IT
THEN BROUGHT A SUIT FOR REFUND OF THE AMOUNT IT HAD PAID TO THE
GOVERNMENT BUT NOT ACTUALLY WITHHELD FROM SALARIES.  THE APPELLEE
EMPLOYEES JOINED THE EMPLOYER'S ACTION, SEEKING ON THEIR OWN BEHALF AN
INJUNCTION BARRING THE UNITED STATES' ENFORCEMENT OF 3402 AGAINST THE
EMPLOYER WITH REGARD TO 51.6% OF THE REQUIRED WITHHOLDING.  THEY ARGUED
THAT, EVEN THOUGH THEY WERE LIABLE FOR THESE AMOUNTS, 3402 AS APPLIED
TO THIS PORTION OF THEIR WAGES WAS UNCONSTITUTIONAL AS A DEPRIVATION OF
THEIR RIGHT TO FREE EXERCISE OF RELIGION UNDER THE FIRST AMENDMENT
SINCE IT DID NOT ALLOW THEM TO BEAR WITNESS TO THEIR BELIEFS BY
REFUSING TO VOLUNTARILY PAY A PORTION OF THEIR TAXES. 

THE DISTRICT COURT ORDERED A REFUND OF AMOUNTS TENDERED BY THE
EMPLOYER BUT NOT WITHHELD BY IT, SINCE THE GOVERNMENT HAD ALSO LEVIED
ON THE EMPLOYEES FOR THESE TAXES AND HENCE HAD RECEIVED A DOUBLE
PAYMENT OF THE AMOUNT DUE.  THE GOVERNMENT DOES NOT CONTEST THIS
PORTION OF THE DISTRICT COURT'S JUDGMENT.  /3/ 

THE DISTRICT COURT ALSO ENJOINED THE UNITED STATES FROM ENFORCING
3402 AGAINST THE EMPLOYER WITH RESPECT TO 51.6% OF THE REQUIRED
WITHHOLDING FROM EMPLOYEES' SALARIES, HOLDING THAT 3402 AS APPLIED TO
THIS AMOUNT CONSTITUTED AN UNCONSTITUTIONAL ABRIDGMENT OF THE RIGHT TO
FREE EXERCISE OF RELIGION.  THE UNITED STATES APPEALS THIS PORTION OF
THE JUDGMENT.  /4/  THE DISTRICT COURT'S OPINION AND ORDER WERE ENTERED
BEFORE THIS COURT HANDED DOWN ITS OPINIONS IN BOB JONES UNIVERSITY V.
SIMON, 416 U.S. 725 (1974), AND COMMISSIONER V. "AMERICANS UNITED"
INC., 416 U.S. 752 (1974). 

THE ANTI-INJUNCTION ACT, 26 U.S.C. 7421(A), PROVIDES THAT "NO SUIT
FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR COLLECTION OF ANY TAX
SHALL BE MAINTAINED IN ANY COURT BY ANY PERSON, WHETHER OR NOT SUCH
PERSON IS THE PERSON AGAINST WHOM SUCH TAX ASSESSED.  . . . "  /5/  IN
BOB JONES, SUPRA WE REJECTED AN APPEAL TO CREATE JUDICIAL EXCEPTIONS TO
7421(A) OTHER THAN THAT CARVED OUT IN ENOCHS V. WILLIAMS PACKING &
NAVIGATION CO., INC., 370 U.S. 1 (1962).  WE NOTED THAT WILLIAMS
PACKING WAS THE "CAPSTONE" OF JUDICIAL CONSTRUCTION OF THE ACT AND
SPELLED AN END TO CYCLICAL DEPARTURES FROM THE ACT'S PLAIN MEANING. 
BOB JONES UNIVERSITY V. SIMON, SUPRA, AT 742.  IN "AMERICANS UNITED"
INC., SUPRA, WE STATED THAT A PRE-ENFORCEMENT INJUNCTION AGAINST THE
ASSESSMENT OR COLLECTION OF TAXES COULD BE GRANTED ONLY IF IT WERE
CLEAR THAT THE GOVERNMENT COULD IN NO CIRCUMSTANCES ULTIMATELY PREVAIL
ON THE MERITS, AND THAT EQUITY JURISDICTION EXISTED.  "UNLESS BOTH
CONDITIONS ARE MET, A SUIT FOR PREVENTIVE INJUNCTIVE RELIEF MUST BE
DISMISSED."  COMMISSIONER V. "AMERICANS UNITED" INC., SUPRA, AT 758. 

THE EMPLOYEES CONCEDE, AND THE DISTRICT COURT FOUND, THAT 3402
WITHHOLDING IS A METHOD OF COLLECTION OF TAXES WITHIN THE MEANING OF
7421(A).  /6/  THEY FURTHER CONCEDE, AS THEY MUST, THAT THEY ARE NOT
WITHIN THE WILLIAMS PACKING EXCEPTION; FAR FROM THE GOVERNMENT'S
DEFENSE IN A REFUND SUIT BEING MERITLESS, EMPLOYEES CONCEDE THAT THE
GOVERNMENT WOULD UNDOUBTEDLY PREVAIL IN SUCH A REFUND ACTION. 

THEY CONTEND, HOWEVER, THAT SINCE THE DISTRICT COURT ENJOINED ONLY
ONE METHOD OF COLLECTION, AND THE GOVERNMENT IS STILL FREE TO ASSESS
AND LEVY THEIR TAXES WHEN DUE, THE ACT DOES NOT APPLY.  BUT THIS
CONTENTION IGNORES THE PLAIN WORDING OF THE ACT WHICH PROSCRIBES ANY
"SUIT FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR COLLECTION OF
ANY TAX."  THE DISTRICT COURT'S INJUNCTION AGAINST THE COLLECTION OF
THE TAX BY WITHHOLDING ENJOINS THE COLLECTION OF THE TAX, AND IS
THEREFORE CONTRARY TO THE EXPRESS LANGUAGE OF THE ANTI-INJUNCTION ACT. 

EMPLOYEES ALSO ARGUE THAT THE ANTI-INJUNCTION ACT IS INAPPLICABLE
BECAUSE THEY HAVE NO ALTERNATE LEGAL REMEDY AVAILABLE.  THEY CONTEND
THAT A REFUND SUIT WOULD BE AN INADEQUATE REMEDY, IN VIEW OF THE
CONCESSION ON THEIR PART THAT THE TAXES ARE DUE, SINCE THEY WOULD
SURELY LOSE SUCH AN ACTION.  BUT THIS IGNORES THE FACT THAT INADEQUACY
OF AVAILABLE REMEDIES GOES ONLY TO THE EXISTENCE OF IRREPARABLE INJURY,
AN ESSENTIAL PREREQUISITE FOR TRADITIONAL EQUITY JURISDICTION, BUT ONLY
ONE OF THE TWO PARTS OF THE WILLIAMS PACKING TEST.  COMMISSIONER V.
"AMERICANS UNITED" INC., SUPRA, AT 762; BOB JONES UNIVERSITY V. SIMON,
SUPRA, AT 745.  HERE AS IN "AMERICANS UNITED"  INC., SUPRA, EMPLOYES
WILL HAVE A FULL OPPORTUNITY TO LITIGATE" THEIR TAX LIABILITY IN A
REFUND SUIT.  416 U.S., AT 762.  EVEN THOUGH THE REMITTING OF THE
EMPLOYEES TO A REFUND ACTION MAY FRUSTRATE THEIR CHOSEN METHOD OF
BEARING WITNESS TO THEIR RELIGIOUS CONVICTIONS, A CHOSEN METHOD WHICH
THEY INSIST IS CONSTITUTIONALLY PROTECTED, THE BAR OF THE ANTI
INJUNCTION ACT IS NOT REMOVED: 

"(DECISIONS OF THIS COURT MAKE IT UNMISTAKABLY CLEAR THAT THE
CONSTITUTIONAL NATURE OF A TAXPAYER'S CLAIM, AS DISTINCT FROM ITS
PROBABILITY OF SUCCESS, IS OF NO CONSEQUENCE UNDER THE ANTI-INJUNCTION
ACT."  ID., AT 759. 

SEE ALSO LOCKERTY V. PHILLIPS, 319 U.S. 182, 187 (1943). 

IN BOB JONES WE LEFT OPEN THE QUESTION OF WHETHER INJUNCTIVE RELIEF
AS TO FUTURE COLLECTION WOULD BE PROPER AS A FORM OF ANCILLARY RELIEF
IN A REFUND SUIT WHERE THE TAXPAYER PREVAILED ON THE MERITS, IN ORDER
TO AVOID THE NECESSITY OF CONTINUOUS SUBSEQUENT "BACKWARD-LOOKING
REFUND SUITS."  416 U.S., AT 748 N. 22.  THAT SITUATION IS NOT
PRESENTED HERE SINCE THE EMPLOYEES HAVE NEVER BROUGHT A REFUND ACTION,
MUCH LESS PREVAILED ON THE MERITS OF SUCH AN ACTION.  THEIR JOINDER IN
THE EMPLOYER'S SUCCESSFUL REFUND ACTION, BASED ON THE RECEIPT OF DOUBLE
PAYMENT BY THE GOVERNMENT, WOULD AFFORD NO BASIS FOR INJUNCTIVE RELIEF
BASED ON THEIR CONSTITUTIONAL CLAIM.  THE INJUNCTIVE RELIEF GRANTED BY
THE DISTRICT COURT IN THIS CASE IS PLAINLY AT ODDS WITH THE DUAL
OBJECTIVES OF THE ACT:  EFFICIENT AND EXPEDITIOUS COLLECTION OF TAXES
WITH "A MINIMUM OF PREENFORCEMENT JUDICIAL INTERFERENCE," AND
PROTECTION OF THE COLLECTOR FROM LITIGATION PENDING A REFUND SUIT.  BOB
JONES, SUPRA, AT 736 - 737.  /7/ 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED INSOFAR AS IT ENJOINS
THE COLLECTION OF TAXES BY THE GOVERNMENT AND THE WITHHOLDING OF WAGES
BY THE EMPLOYER. 

   REVERSED IN PART. 

/1/  THIS FIGURE REPRESENTS THEIR ESTIMATE OF THE PERCENTAGE OF THE
FEDERAL BUDGET WHICH IS MILITARY RELATED. 

/2/  26 U.S.C. 3402.  THE PROVISION PROVIDES IN PART THAT "(EVERY
EMPLOYER MAKING PAYMENT OF WAGES SHALL DEDUCT AND WITHHOLD UPON SUCH
WAGES (EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION) A TAX DETERMINED
IN ACCORDANCE WITH THE FOLLOWING TABLES.  . . ."  THERE IS NO DISPUTE
AS TO THE APPLICABILITY OF THE PROVISION TO THE EMPLOYEES' WAGES. 

/3/  JURISDICTIONAL STATEMENT 7 N. 3.  WE EXPRESS NO OPINION AS TO
THE MERITS OF THE REFUND CLAIM.  THE LOWER COURT'S OPINION IS REPORTED
AT 368 F.SUPP.  1176. 

/4/  SINCE THE DISTRICT COURT HELD THAT 3402 WAS UNCONSTITUTIONAL AS
APPLIED TO THE FACTS OF THIS CASE, THIS COURT HAS JURISDICTION OVER THE
APPEAL UNDER 28 U.S.C. 1252.  FLEMING V. RHODES, 331 U.S. 100, 102 -
103 (1947); UNITED STATES V. CHRISTIAN ECHOES MINISTRY, 404 U.S. 561,
563 (1972). 

/5/  SEE ACT OF MAR. 2, 1867, 10, 14 STAT. 475; REV. STAT. 3224;
INT. REV. CODE OF 1939 3653.  SECTION 7421(A) OF THE CODE STATES:
"EXCEPT AS PROVIDED IN SECTIONS 6212(A) AND (C), 6213(A), AND 7426(A)
AND (B)(1), NO SUIT FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR
COLLECTION OF ANY TAX SHALL BE MAINTAINED IN ANY COURT BY ANY PERSON,
WHETHER OR NOT SUCH PERSON IS THE PERSON AGAINST WHOM SUCH TAX WAS
ASSESSED." 

/6/  THE LEGISLATIVE HISTORY OF THIS PROVISION ENACTED IN 1943
INDICATES THAT ITS PURPOSE IN PART WAS TO ASSIST THE GOVERNMENT IN
SECURING NEEDED REVENUE WITHOUT HAVING TO RESORT TO LEVY.  H.R. REP.
NO. 268, 78TH CONG., 1ST SESS., 1 - 2 (1943); S. REP. NO. 221, 78TH
CONG., 1ST SESS., 1 (1943).  THE DISTRICT COURT NOTED THAT RELEGATING
THE GOVERNMENT TO LEVYING AFTER RETURNS WERE FILED WOULD BE AN
INEFFICIENT PROCESS.  368 F.SUPP., AT 1180. 

/7/  BECAUSE WE HAVE CONCLUDED THAT THE ANTI-INJUNCTION ACT BARS
INJUNCTIVE RELIEF, WE HAVE NOT FOUND IT NECESSARY TO DECIDE OTHER
THRESHOLD ISSUES SUCH AS WHETHER A THREE-JUDGE DISTRICT COURT WAS
REQUIRED, WHETHER THE SOVEREIGN IMMUNITY OF THE UNITED STATES BARRED
THE SUIT, AND WHETHER THE REQUIREMENTS OF 28 U.S.C. 1331 WERE MET. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE SOLE QUESTION ON THE MERITS IS WHETHER THE PROVISION OF THE
INTERNAL REVENUE CODE, 26 U.S.C. 3402, WHICH REQUIRES EMPLOYERS TO
DEDUCT AND WITHHOLD FROM WAGES FEDERAL INCOME TAXES, IS CONSTITUTIONAL
AS APPLIED TO APPELLEES, WHO ON RELIGIOUS GROUNDS OBJECT TO THE
WITHHOLDING TAXES ON THEIR SALARIES WHICH REPRESENT THAT PORTION OF THE
FEDERAL BUDGET ALLOCATED TO MILITARY EXPENDITURES.  /1/  THEY INVOKE
THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT, AS THEY ARE QUAKERS
WHO ARE OPPOSED TO PARTICIPATION IN WAR IN ANY FORM AND WHO CLAIM THAT
THIS METHOD OF COLLECTION DIRECTLY FORECLOSES THEIR ABILITY FREELY TO
EXPRESS THAT OPPOSITION, I.E., TO BEAR WITNESS TO THEIR RELIGIOUS
SCRUPLES. 

THERE IS NO EVIDENCE THAT QUESTIONS THE SINCERITY OF APPELLEES'
RELIGIOUS BELIEFS.  NOR IS THERE ANY ISSUE RAISED AS TO WHETHER THAT
RELIGIOUS BELIEF WOULD GIVE APPELLEES A DEFENSE AGAINST ULTIMATE
PAYMENT OF THE TAX.  THE DISTRICT COURT HELD THAT THE WITHHOLDING WAS
UNCONSTITUTIONAL AS TO APPELLEES, 368 F.SUPP.  1176, A CONCLUSION WITH
WHICH I AGREE. 

THE WITHHOLDING PROCESS /2/  FORECLOSES APPELLEES FROM BEARING
WITNESS AGAINST THE USE OF THESE MONTHLY DEDUCTIONS FOR MILITARY
PURPOSES.  UNDER THE OPINION OF THIS COURT, THEY ARE DEPRIVED OF
BEARING WITNESS TO THEIR OPPOSITION TO WAR--THESE WITHHELD PORTIONS OF
THEIR SALARIES PAY THE ENTIRE TAX AND THEY THEREFORE HAVE "NO
ALTERNATIVE LEGAL REMEDY," A CIRCUMSTANCE WHICH DISTINGUISHES BOTH
ENOCHS V. WILLIAMS PACKING CO., 370 U.S. 1, AND BOB JONES UNIVERSITY V.
SIMON, 416 U.S. 725. 

QUAKERS WITH TRUE RELIGIOUS SCRUPLES AGAINST PARTICIPATING IN WAR
MAY NO MORE BE BARRED FROM PROTESTING THE PAYMENT OF TAXES TO SUPPORT
WAR THAN THEY CAN BE FORCIBLY INDUCTED INTO THE ARMED FORCES AND
REQUIRED TO CARRY A GUN, AND YET BE DENIED ALL OPPORTUNITY TO STATE
THEIR RELIGIOUS VIEWS AGAINST PARTICIPATION.  SEE UNITED STATES V.
SEEGER, 380 U.S. 163.  THE COURT MISSES THE ENTIRE POINT OF THE PRESENT
CONTROVERSY.  APPELLEES ARE BARRED FROM PROTESTING THESE MONTHLY
DEDUCTIONS UNDER THE COURT'S OPINION.  IN ENOCHS V. WILLIAMS PACKING
CO., SUPRA, AND BOB JONES UNIVERSITY V. SIMON, SUPRA, TAXPAYERS SOUGHT
TO ENJOIN THE COLLECTION OF TAXES BY ANY MEANS WHATEVER, WHILE THE
TAXPAYERS LITIGATED THE QUESTION WHETHER THE TAXES WERE DUE AT ALL. 
HERE APPELLEES CHALLENGE THE WITHHOLDING LAW AS DEPRIVING THEM OF THEIR
ONE AND ONLY CHANCE OF CONTESTING THE CONSTITUTIONALITY OF THE
WITHHOLDING OF THE TAX AS APPLIED TO THEM.  SO UNLIKE ENOCHS AND BOB
JONES UNIVERSITY THERE IS NO REMEDY BY WAY OF REFUND.  /3/ 

THE RELIGIOUS BELIEF WHICH THE GOVERNMENT VIOLATES HERE IS THAT
APPELLEES MUST BEAR ACTIVE WITNESS TO THEIR OBJECTIONS TO THEIR SUPPORT
OF WAR EFFORTS.  DR. EDWIN BRONNER, WHO QUALIFIED AS AN EXPERT ON THE
HISTORY OF QUAKERISM, GAVE TESTIMONY WHICH, AS SUMMARIZED BY THE
DISTRICT COURT, 368 F.SUPP., AT 1178, STATED "THAT MOST QUAKERS HAVE
CONSIDERED IT AN INTEGRAL PART OF THEIR FAITH /4/  TO BEAR WITNESS TO
THE BELIEFS WHICH THEY HOLD IT HAS ALWAYS BEEN THE PREVAILING VIEW THAT
SIMPLE PREACHING OF ONE'S BELIEFS IS NOT SUFFICIENT, AND THAT ONE'S
ACTIONS MUST ACCORD WITH AND GIVE EXPRESSION TO ONE'S BELIEFS.  MANY OF
THE EMPLOYEES OF THE AFSC, INCLUDING PARTICULARLY APPELLEES' CLEVELAND
AND CADWALLADER, SHARE THIS BELIEF, AND FOR THESE EMPLOYEES, THE
OPERATION OF THE WITHHOLDING TAX, WHICH LEAVES THEM NO OPTION AS TO THE
PAYMENT OF THE TAXES WHICH THEY CONSCIENTIOUSLY QUESTION, OPERATES AS A
DIRECT ABRIDGMENT OF THE EXPRESSION AND IMPLEMENTATION OF DEEPLY
CHERISHED RELIGIOUS BELIEFS."     IF WE ARE FAITHFUL TO THE COMMAND OF
THE FIRST AMENDMENT, WE WOULD HONOR THAT RELIGIOUS BELIEF.  I HAVE NOT
BOWED TO THE VIEW OF THE MAJORITY THAT "SOME COMPELLING STATE INTEREST"
WILL WARRANT AN INFRINGEMENT OF THE FREE EXERCISE CLAUSE.  SHERBERT V.
VERNER, 374 U.S. 398, 406 - 407; BRAUNFELD V. BROWN, 366 U.S. 599,
603.  I HAVE PREVIOUSLY DISSENTED FROM THAT POSITION AND OPPOSED
AMENDING BY JUDICIAL CONSTRUCTION THE PLAIN COMMAND OF THE FREE
EXERCISE CLAUSE.  SEE SHERBERT V. VERNER, SUPRA, AT 410 - 413; MCGOWAN
V. MARYLAND, 366 U.S. 420, 575 - 576; ARLAN'S DEPARTMENT STORE V.
KENTUCKY, 371 U.S. 218. 

THE ANTI-INJUNCTION ACT, 26 U.S.C. 7421(A), IS NO BARRIER.  NO
"ASSESSMENT OR COLLECTION OF ANY TAX" IS RESTRAINED, ONLY ONE METHOD OF
COLLECTION IS BARRED, THE GOVERNMENT BEING LEFT FREE TO USE ALL OTHER
MEANS AT ITS DISPOSAL.  MOREOVER, TO CONSTRUE THE ACT AS THE COURT
CONSTRUES IT DOES NOT AVOID A CONSTITUTIONAL QUESTION BUT DIRECTLY
RAISES ONE.  THE ACT, READ AS LITERALLY AS THE COURT READS IT, PLAINLY
VIOLATES THE FIRST AMENDMENT AS APPLIED TO THE FACTS OF THIS CASE, FOR
"NO LAW" PROHIBITING THE FREE EXERCISE OF RELIGION INCLUDES EVERY KIND
OF LAW, INCLUDING A LAW STAYING THE HAND OF A JUDGE WHO ENJOINS A LAW
FOR THE COLLECTION OF TAXES THAT TRESPASSES ON THE FIRST AMENDMENT. 

THE POWER OF CONGRESS TO ORDAIN AND ESTABLISH INFERIOR COURTS
(LOCKERTY V. PHILLIPS, 319 U.S. 182, 187) HAS NOT TO THIS DATE BEEN
ASSUMED OR HELD TO MEAN THAT CONGRESS COULD REQUIRE A FEDERAL COURT TO
TAKE ACTION IN VIOLATION OF THE CONSTITUTION.  THUS SUSPENSION OF THE
WRIT OF HABEAS CORPUS IS RESTRICTED TO "CASES OF REBELLION OR INVASION"
WHERE "THE PUBLIC SAFETY MAY REQUIRE IT."  ART. I, 9, CL. 2.  AND WHEN
IT COMES TO THE FIRST AMENDMENT AND THE FREE EXERCISE OF RELIGION, THE
MANDATE IS THAT "CONGRESS SHALL MAKE NO LAW . . . PROHIBITING"  IT.
THE ANTI-INJUNCTION ACT IS A "LAW"; AND THE CONSTITUTION GIVES NO SUCH
PREFERENCE TO TAX LAWS AS TO PERMIT THEM TO OVERRIDE RELIGIOUS
SCRUPLES.  MAY CONGRESS ENACT A LAW THAT PROHIBITS A MINISTER FROM
PREACHING IF HIS TAXES ARE IN ARREARS?  OR THAT DISALLOWS THE MAKING OF
A PROTEST TO A TAX ASSESSMENT EVEN THOUGH THE ASSESSMENT AND PAYMENT
VIOLATE ONE'S RELIGIOUS SCRUPLES?  UNTIL TODAY, I WOULD HAVE THOUGHT
NOT.  THE FIRST AMENDMENT, AS APPLIED TO THE STATES BY THE FOURTEENTH,
BARS A TAX ON THE CONDUCT OF A RELIGIOUS EXERCISE BY A MINORITY EVEN
THOUGH THAT RELIGIOUS EXERCISE IS OBNOXIOUS TO THE MAJORITY.  MURDOCK
V. PENNSYLVANIA, 319 U.S. 105.  DICTA TO THE EFFECT THAT AN ALLEGATION
OF UNCONSTITUTIONALITY IS IRRELEVANT UNDER THE ANTI-INJUNCTION ACT
(BAILEY V. GEORGE, 259 U.S. 16, 20)--WHICH THE COURT TODAY ELEVATES TO
A HOLDING--WERE BASED ON THE PREMISE THAT THERE WAS AN ALTERNATIVE
REMEDY TO THE UNCONSTITUTIONAL ACTIONS.  HERE, AS DEMONSTRATED, THERE
IS NO OTHER REMEDY.  A REFUND SUIT IS OF NO VALUE, SINCE THE RELIGIOUS
SCRUPLES WHICH THESE TAXPAYERS INVOKE RELATE TO THEIR INABILITY TO
PROTEST THE PAYMENT, NOT TO THE USE OF THE TAXES THEMSELVES FOR
MILITARY PURPOSES. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  THE DISTRICT COURT FOUND THAT 51.6% WAS A REASONABLE ESTIMATE
OF THE PROPORTION OF THE FEDERAL BUDGET EXPENDED FOR MILITARY AND WAR
PURPOSES BASED ON THE APPROPRIATIONS MADE BY CONGRESS IN THE CALENDAR
YEAR 1968, ACCORDING TO A COMPUTATION BY THE FRIENDS COMMITTEE ON
NATIONAL LEGISLATION. 

/2/  OBJECTIONS TO WITHHOLDING ARE NOT RESTRICTED TO QUAKERS.  SOME
FEDERAL JUDGES HAVE PASSIONATELY OPPOSED THE WITHHOLDING OF TAXES ON
THEIR SALARIES, NOT ON THE BASIS THAT THE TAX IS UNCONSTITUTIONAL AS
WAS ONCE HELD (SEE O'MALLEY V. WOODROUGH, 307 U.S. 277, OVERRULING
MILES V. GRAHAM, 268 U.S. 501), BUT RATHER ON THE GROUND THAT THE LOSS
OF THE USE OF THE SUMS DEDUCTED DURING THE YEAR PRECEDING THE APRIL 15
DUE DATE IS A DIMINUTION OF THEIR COMPENSATION AGAINST THE COMMAND OF
ART. III, 1, WHICH PROVIDES IN PART:  "THE JUDGES, BOTH OF THE SUPREME
AND INFERIOR COURTS, SHALL HOLD THEIR OFFICES DURING GOOD BEHAVIOUR,
AND SHALL, AT STATED TIMES, RECEIVE FOR THEIR SERVICES, A COMPENSATION,
WHICH SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE IN OFFICE." 
WHATEVER MAY BE THE MERITS OF THAT CONTENTION, THE COMMAND OF THE FIRST
AMENDMENT PERMITS OF NO EXCEPTIONS, FOR IT STATES:  "CONGRESS SHALL
MAKE NO LAW . . . PROHIBITING THE FREE EXERCISE" OF RELIGION. 

/3/  IN BOB JONES UNIVERSITY, THE COURT EXPRESSLY STATED:  "THIS IS
NOT A CASE IN WHICH AN AGGRIEVED PARTY HAS NO ACCESS AT ALL TO JUDICIAL
REVIEW.  WERE THAT TRUE, OUR CONCLUSION MIGHT WELL BE DIFFERENT."  416
U.S., AT 746.  SIMILARLY, IN COMMISSIONER V. "AMERICANS UNITED" INC.,
416 U.S. 752, THE COURT EXAMINED AT LENGTH THE CLAIM THAT THE
RESPONDENT THERE HAD "NO ALTERNATIVE LEGAL REMEDY," ULTIMATELY
CONCLUDING THAT THE CLAIM WAS UNTRUE SINCE A REFUND ACTION FOR FUTA
TAXES, WHILE SLOW AND UNSATISFACTORY FROM THE TAXPAYER'S POINT OF VIEW,
WOULD STILL PROVIDE A FORUM IN WHICH JUDICIAL REVIEW OF THE LEGALITY OF
THE ACTIONS OF THE IRS COULD BE OBTAINED.  ID., AT 761 - 762. 

IN THE PRESENT CASE, SINCE THE TAXPAYERS DO NOT CLAIM THAT THEY ARE
ENTITLED TO A REFUND (CONCEDING THAT THE GOVERNMENT COULD LEGITIMATELY
COLLECT THE TAX BY SOME METHOD), A REFUND SUIT WOULD BE SUMMARILY
DISMISSED WITHOUT EVER REACHING THE MERITS OF THEIR CLAIM THAT THE
PARTICULAR METHOD OF COLLECTION VIOLATED THEIR FREE EXERCISE RIGHTS. 
THIS SITUATION APPEARS, THEN, TO FALL SQUARELY WITHIN THE QUESTION LEFT
OPEN IN BOB JONES UNIVERSITY, SUPRA; THE COURT NOW APPARENTLY RESOLVES
THAT QUESTION SUB SILENTIO. 

/4/  FRIENDS WILL EVER BE CONCERNED TO RELATE THEIR RELIGIOUS
INSIGHTS TO THE REALITIES OF INTERNATIONAL LIFE.  OPPORTUNITIES FOR
COURAGEOUS ACTION AND FOR THE EXPRESSION OF INVINCIBLE GOOD WILL REMAIN
UNDER ANY POLITICAL SYSTEM.  WHATEVER THE SYSTEM AND WHATEVER THE
SITUATION THAT CALLS FOR DECISION, FRIENDS ARE CALLED UPON TO MAKE
THEIR WITNESS."  FAITH AND PRACTICE, THE BOOK OF DISCIPLINE OF THE NEW
YORK YEARLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS 42 (1968). 
..END :








UNITED STATES V. MICHIGAN NATIONAL CORP., 419 U.S. 1 


       UNITED STATES V. MICHIGAN NATIONAL CORP. ET AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF MICHIGAN

        NO. 73 - 1737.  DECIDED OCTOBER 21, 1974; 


    APPELLEE BANK HOLDING COMPANY'S PLANNED ACQUISITION OF

  ADDITIONAL BANKS WAS GOVERNED BY BOTH THE BANK HOLDING COMPANY

  ACT REQUIRING THE FEDERAL RESERVE BOARD'S APPROVAL OF THE

  ACQUISITION AND THE BANK MERGER ACT REQUIRING THE COMPTROLLER OF

  THE CURRENCY'S APPROVAL.  BOTH STATUTES PROVIDE THAT AN ANTITRUST

  SUIT CHALLENGING A TRANSACTION APPROVED BY THE DESIGNATED AGENCY

  MUST BE BROUGHT WITHIN 30 DAYS OF SUCH APPROVAL.  WITHIN 30 DAYS

  AFTER THE BOARD HAD APPROVED THE PLANNED ACQUISITION BUT BEFORE

  THE COMPTROLLER HAD ACTED, THE GOVERNMENT BROUGHT A CLAYTON ACT

  SUIT TO ENJOIN THE ACQUISITION, WHICH THE DISTRICT COURT

  DISMISSED WITHOUT PREJUDICE, RULING THAT THE GOVERNMENT SHOULD

  BRING A NEW SUIT IF AND WHEN THE COMPTROLLER APPROVED THE

  ACQUISITION.  HELD:  THE DISTRICT COURT ERRED IN TAKING SUCH

  ACTION BUT SHOULD STAY THE SUIT UNTIL THE COMPTROLLER ACTS.  SUCH

  PROCEDURE WILL CONSERVE JUDICIAL RESOURCES AND FULLY PROTECT BOTH

  PARTIES, AND AVOID POSSIBLE PREJUDICE TO THE GOVERNMENT, WHICH BY

  BEING REQUIRED TO WAIT FOR THE COMPTROLLER'S APPROVAL BEFORE

  FILING SUIT WOULD RISK HAVING COMPLETE RELIEF BARRED BY THE TIME

LIMITATION OF THE BANK HOLDING COMPANY ACT.  VACATED AND

 REMANDED. 

PER CURIAM. 

THIS IS AN APPEAL FROM AN ORDER OF THE DISTRICT COURT DISMISSING
WITHOUT PREJUDICE THE GOVERNMENT'S SUIT UNDER 7 OF THE CLAYTON ACT, 38
STAT. 731, 15 U.S.C. 18, TO ENJOIN A BANK HOLDING COMPANY'S
ACQUISITIONS.  APPELLEE MICHIGAN NATIONAL CORPORATION (MNC), A BANK
HOLDING COMPANY THAT OWNS FIVE MICHIGAN BANKS, SEEKS CONTROL OF FOUR
ADDITIONAL MICHIGAN BANKS.  THE PLANNED ACQUISITION WILL TAKE THE
FOLLOWING FORM.  MNC WILL CHARTER FOUR "PHANTOM" BANKS, INITIALLY
HAVING NO ASSETS OR DEPOSITS, WHOSE STOCK IT WILL ACQUIRE.  THE FOUR
TARGET BANKS WILL BE MERGED WITH THE PHANTOM BANKS, THEREBY BECOMING
SUBSIDIARY BANKS OF THE HOLDING COMPANY. 

THE FORM OF THE TRANSACTION BRINGS IT WITHIN THE PURVIEW OF TWO
REGULATORY STATUTES.  SECTION 3 OF THE BANK HOLDING COMPANY ACT OF
1956, 70 STAT. 134, AS AMENDED, 80 STAT. 237, 12 U.S.C. 1842, REQUIRES
THAT AN ACQUISITION OF A SUBSIDIARY BANK BY A HOLDING COMPANY BE
APPROVED BY THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. 
U.S.C. 1828(C)(2)(A), REQUIRES APPROVAL OF BANK MERGERS BY A DESIGNATED
AGENCY, WHICH IN THE CASE OF AN ACQUISITION BY A NATIONAL BANK IS THE
COMPTROLLER OF THE CURRENCY.  EACH REGULATORY STATUTE PROVIDES TIME
LIMITATIONS FOR ANTITRUST SUITS CHALLENGING TRANSACTIONS THAT HAVE
GAINED ADMINISTRATIVE APPROVAL.  THE BANK HOLDING COMPANY ACT, 11, AS
AMENDED, 80 STAT. 240, 12 U.S.C. 1849, PROVIDES THAT AN ANTITRUST SUIT
ARISING FROM A HOLDING COMPANY ACQUISITION MUST BE BROUGHT WITHIN 30
DAYS OF APPROVAL BY THE FEDERAL RESERVE BOARD.  THE BANK MERGER ACT, 12
U.S.C. 1828(C)(6) AND (7), ESTABLISHES A SIMILAR 30 - DAY PERIOD
FOLLOWING APPROVAL OF A MERGER BY THE DESIGNATED ADMINISTRATIVE BODY. 
/1/  UNDER BOTH STATUTES, TRANSACTIONS HAVING ADMINISTRATIVE APPROVAL
CANNOT GO FORWARD DURING THE PERIOD WITHIN WHICH AN ANTITRUST SUIT MAY
BE BROUGHT, OR DURING THE PENDENCY OF A TIMELY ANTITRUST SUIT UNLESS
THE COURT OTHERWISE ORDERS.  THE EXPIRATION OF THE PERIOD WITHOUT THE
FILING OF AN ANTITRUST SUIT, HOWEVER, ALLOWS THE TRANSACTING PARTIES TO
CONSUMMATE ARRANGEMENTS WITHOUT FEAR OF CHALLENGE. 

MNC MADE APPLICATIONS TO BOTH THE FEDERAL RESERVE BOARD AND THE
COMPTROLLER FOR APPROVAL OF ITS PROPOSED TRANSACTIONS.  DISAPPROVAL BY
EITHER BODY WOULD PREVENT MNC FROM COMPLETING THE ENTIRE ACQUISITION AS
PLANNED.  IN OCTOBER 1973 THE FEDERAL RESERVE BOARD APPROVED THE
ACQUISITIONS BY THE HOLDING COMPANY.  WITHOUT AWAITING ACTION BY THE
COMPTROLLER, THE GOVERNMENT FILED COMPLAINTS UNDER THE CLAYTON ACT TO
ENJOIN THE ACQUISITIONS; THE SUIT WAS BROUGHT WITHIN THE 30 - DAY
PERIOD PRESCRIBED BY 11 OF THE BANK HOLDING COMPANY ACT.  THE DISTRICT
COURT DISMISSED THE COMPLAINTS WITHOUT PREJUDICE, RULING THAT THE
GOVERNMENT SHOULD BRING A NEW LAWSUIT IF AND WHEN THE COMPTROLLER
APPROVED THE MERGERS OF THE TARGET BANKS WITH THE "PHANTOMS."  THE
GOVERNMENT TOOK A DIRECT APPEAL TO THIS COURT, 32 STAT. 823, 15 U.S.C.
29. 

THE DISTRICT COURT REASONED THAT THE GOVERNMENT'S SUIT WAS
"PREMATURE,"  SINCE A DISAPPROVAL BY THE COMPTROLLER WOULD MOOT THE
CLAYTON ACT CLAIM.  WHETHER VIEWED AS A DISMISSAL FOR LACK OF A "CASE
OR CONTROVERSY" OR AS AN EXERCISE OF EQUITABLE DISCRETION, WE BELIEVE
THE DISTRICT COURT'S ACTION WAS ERROR. 

THE VIEW THAT THE POSSIBILITY OF DISAPPROVAL BY THE COMPTROLLER
DEPRIVED THE DISTRICT COURT OF AN ACTUAL CONTROVERSY TO ADJUDICATE, A
POSITION TAKEN BY APPELLEES BELOW, CANNOT BE SQUARED WITH THE MANY
DECISIONS PERMITTING A FEDERAL COURT TO STAY PROCEEDINGS IN A CASE
PROPERLY BEFORE IT WHILE AWAITING THE DECISION OF ANOTHER TRIBUNAL. 
THIS IS THE HOLDING OF RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496
(1941), WHICH LAUNCHED THE ABSTENTION DOCTRINE.  PULLMAN HELD THAT
WHERE AN ORDER OF THE TEXAS RAILROAD COMMISSION WAS CHALLENGED IN A
DISTRICT COURT AS VIOLATIVE OF THE FOURTEENTH AMENDMENT AND AS OUTSIDE
THE COMMISSION'S AUTHORITY UNDER STATE LAW, THE FEDERAL COURT SHOULD
STAY PROCEEDINGS PENDING A RESOLUTION BY THE TEXAS COURTS OF THE STATE
LAW QUESTION OF THE COMMISSION'S AUTHORITY.  IN SUCCEEDING CASES THAT
HAVE APPLIED THE PULLMAN DOCTRINE, THE COMMON PRACTICE HAS BEEN FOR THE
DISTRICT COURT TO RETAIN JURISDICTION BUT TO STAY PROCEEDINGS WHILE
AWAITING A DECISION IN THE STATE COURTS.  SEE, E.G., CHICAGO V.
FIELDCREST DAIRIES, INC., 316 U.S. 168 (1942); SOECTOR MOTOR SERVICE,
INC. V. MCLAUGHLIN, 323 U.S. 101 (1944); GOVERNMENT & CIVIC EMPLOYEES
ORGANIZING COMMITTEE V. WINDSOR, 353 U.S. 364 (1957); LOUISIANA POWER &
LIGHT CO. V. CITY OF THIBODAUX, 360 U.S. 25 (1959); ENGLAND V.
LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411 (1964); LAKE
CARRIERS' ASSN. V. MACMULLAN, 406 U.S. 498 (1972).  THAT A FAVORABLE
DECISION IN THE STATE COURT MIGHT MOOT THE PLAINTIFF'S CONSTITUTIONAL
CLAIM BROUGHT TO THE FEDERAL COURT WAS NEVER THOUGHT TO CREATE ANY
JURISDICTIONAL IMPEDIMENT.  FOR JURISDICTIONAL PURPOSES, IT SUFFICES
THAT THERE IS A "REAL AND SUBSTANTIAL CONTROVERSY ADMITTING OF SPECIFIC
RELIEF THROUGH A DECREE OF A CONCLUSIVE CHARACTER, AS DISTINGUISHED
FROM AN OPINION ADVISING WHAT THE LAW WOULD BE UPON A HYPOTHETICAL
STATE OF FACTS."  AETNA LIFE INSURANCE CO. V. HAWORTH, 300 U.S. 227,
241 (1937). 

THE SAME PROCEDURE HAS GENERALLY BEEN FOLLOWED WHEN THE RESOLUTION
OF A CLAIM COGNIZABLE IN A FEDERAL COURT MUST AWAIT A DETERMINATION BY
AN ADMINISTRATIVE AGENCY HAVING PRIMARY JURISDICTION.  SEE CARNATION
CO. V. PACIFIC WESTBOUND CONFERENCE, 383 U.S. 213, 222 - 224 (1966);
GENERAL AMERICAN TANK CAR CORP. V. EL DORADO TERMINAL CO., 308 U.S.
422, 432 - 433 (1940); MITCHELL COAL CO. V. PENNSYLVANIA R. CO., 230
U.S. 247 (1913).  DISMISSAL RATHER THAN A STAY HAS BEEN APPROVED WHERE
THERE IS ASSURANCE THAT NO PARTY IS PREJUDICED THEREBY.  /2/  SEE FAR
EAST CONFERENCE V. UNITED STATES, 342 U.S. 570 (1952). 

IN THE PRESENT CASE WE CANNOT SAY WITH ASSURANCE THAT THE GOVERNMENT
WILL NOT BE PREJUDICED BY A DISMISSAL.  SECTION 11 OF THE BANK HOLDING
COMPANY ACT PROVIDES THAT "(ANY ACTION BROUGHT UNDER THE ANTITRUST LAWS
ARISING OUT OF AN ACQUISITION, MERGER, OR CONSOLIDATION TRANSACTION"
SHALL BE COMMENCED WITHIN THE 30 - DAY PERIOD FOLLOWING APPROVAL BY THE
BOARD.  12 U.S.C. 1849(B) (EMPHASIS ADDED).  BY THE TIME THE
COMPTROLLER APPROVES THE MERGERS, THE 30 - DAY PERIOD FOLLOWING BOARD
APPROVAL MAY HAVE LONG SINCE EXPIRED.  /3/  BY WAITING FOR APPROVAL OF
THE COMPTROLLER BEFORE FILING ITS LAWSUIT, THE GOVERNMENT RUNS THE RISK
THAT COMPLETE RELIEF WILL BE BARRED BY THE PROVISIONS OF 11.  MNC
DISPUTES THIS, ARGUING THAT SO LONG AS THE GOVERNMENT BRINGS SUIT
FOLLOWING THE COMPTROLLER'S APPROVAL WITHIN THE TIME PRESCRIBED BY THE
BANK MERGER ACT, IT WILL BE ABLE TO CHALLENGE THE MERGER OF THE TARGET
BANKS WITH THE PHANTOMS, THE ONLY EVENT WHICH GIVES THE TRANSACTION
COMPETITIVE SIGNIFICANCE. 

CONGRESS DOES NOT APPEAR TO HAVE CONSIDERED EXPRESSLY THE APPLICATION
OF THE TIME LIMITATIONS TO TRANSACTIONS FALLING WITHIN BOTH REGULATORY
STATUTES.  /4/  WHILE THE QUESTION IS NOT FREE FROM DOUBT, THERE IS A
PROCEDURE THAT PRESERVES BEYOND DOUBT THE GOVERNMENT'S ABILITY FULLY TO
PURSUE ITS CLAYTON ACT SUIT AND AT THE SAME TIME PRODUCES NO HARDSHIP
TO THE OTHER PARTY.  /5/  WHERE SUIT IS BROUGHT AFTER THE FIRST
ADMINISTRATIVE DECISION AND STAYED UNTIL REMAINING ADMINISTRATIVE
PROCEEDINGS HAVE CONCLUDED, JUDICIAL RESOURCES ARE CONSERVED AND BOTH
PARTIES FULLY PROTECTED. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE REMANDED
FOR THE ENTRY OF FURTHER ORDERS CONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/  SHORTER PERIODS ARE PRESCRIBED BY THE BANK MERGER ACT WHEN THE
DESIGNATED AGENCY FINDS THAT EXPEDITION OF THE TRANSACTION IS NECESSARY
"TO PREVENT THE PROBABLE FAILURE OF ONE OF THE BANKS INVOLVED."  12
U.S.C. 1828(C)(4) AND (6). 

/2/  WE MAY PUT TO ONE SIDE CASES WHERE THE ADMINISTRATIVE AGENCY
HAS EXCLUSIVE JURISDICTION TO CONSIDER THE COMPLAINT INITIALLY BROUGHT
IN COURT, E.G., PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U.S.
296 (1963), OR THOSE IN WHICH CONGRESS, BY DEPRIVING THE AGENCY OF A
REMEDY, IS DEEMED TO HAVE WITHHELD IT FROM THE COURTS AS WELL, E.G.,
MONTANA-DAKOTA UTILITIES CO. V. NORTHWESTERN PUBLIC SERVICE CO., 341
U.S. 246 (1951).  IN SUCH CASES, THE COURT MUST OF COURSE DISMISS THE
ACTION. 

/3/  ON MAY 16, 1974, NEARLY THREE MONTHS AFTER THE DISTRICT COURT
DISMISSED THE CASE, THE COMPTROLLER APPROVED THE MERGER OF TWO TARGET
BANKS WITH THEIR CORRESPONDING "PHANTOMS."  THE GOVERNMENT FILED A NEW
CLAYTON ACT COMPLAINT AGAINST THE APPROVED MERGERS WITHIN THE PERIOD
PRESCRIBED BY THE BANK MERGER ACT.  THE DISTRICT COURT HAS NOT YET
RULED ON A MOTION BY MNC TO DISMISS THAT COMPLAINT BECAUSE OF THE
PENDENCY OF THIS APPEAL.  THE COMPTROLLER HAS MADE NO DECISION ON MNC'S
PROPOSED MERGERS INVOLVING THE TWO REMAINING TARGET BANKS. 

/4/  THOUGH THE TWO STATUTES OF LIMITATIONS WERE ENACTED IN THE SAME
YEAR, THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY THAT CONGRESS
CONSIDERED THEIR RELATIONSHIP IN THE CASE OF A TRANSACTION WITHIN THE
PURVIEW OF BOTH REGULATORY ACTS.  SEE S. REP. NO. 299, 89TH CONG., 1ST
SESS. (1965), AND H.R. REP. NO. 1221, 89TH CONG., 2D SESS. (1966) (BANK
MERGER ACT); S. REP. NO. 1179, 89TH CONG., 2D SESS. (1966), AND H.R.
REP. NO. 534, 89TH CONG., 1ST SESS. (1965) (BANK HOLDING COMPANY ACT). 

/5/  BECAUSE PROCEEDINGS IN THE DISTRICT COURT WOULD BE STAYED,
MNC'S ASSERTION THAT THE LAWSUIT "PLACED THE DEFENDANTS IN THE POSITION
OF HAVING TO PREPARE TO DEFEND, IN AN ANTITRUST ACTION, TRANSACTIONS
WHICH THEY DID NOT HAVE REGULATORY APPROVAL TO CONSUMMATE," IS SIMPLY A
MAKEWEIGHT.  (MOTION TO AFFIRM 6.) 
..END :














EHRLICHMAN V. SIRICA, 419 U.S. 1310 


       EHRLICHMAN V. SIRICA ET AL.

        ON APPLICATION FOR STAY

        NO. A - 93.  DECIDED AUGUST 28, 1974 


    APPLICATION FOR STAY OF DISTRICT COURT'S ORDER SETTING

  APPLICANT'S CRIMINAL TRIAL DATE, ON ALLEGED GROUNDS THAT PRETRIAL

  PUBLICITY PRECLUDED APPLICANT'S RECEIVING A FAIR TRIAL IN THE

  VENUE AT THE TIME SET AND THAT HE LACKS SUFFICIENT TIME TO

  PREPARE HIS DEFENSE, IS DENIED.  THE RESPONSIBILITY FOR PASSING

  ON A CLAIM FOR A CHANGE OF VENUE OR DELAY IN A TRIAL BECAUSE OF

  PREJUDICIAL PRETRIAL PUBLICITY CALLS FOR THE EXERCISE OF THE

  HIGHEST ORDER OF SOUND JUDICIAL DISCRETION BY THE DISTRICT COURT,

  AND DOUBTS ABOUT THE CORRECTNESS OF THE ORDER, PARTICULARLY AFTER

  THE COURT OF APPEALS HAS REVIEWED IT AND DENIED MANAMUS, DO NOT

  CONSTITUTE SUFFICIENT BASIS FOR CONTRARY ACTION BY AN INDIVIDUAL

  CIRCUIT JUSTICE ABSENT THE MOST EXTRAORDINARY CIRCUMSTANCES. 

  DENIAL OF THE APPLICATION HERE INDICATES NO VIEW ON THE ISSUES

  PRESENTED, AND ANY ERRORS IN THE EXERCISE OF DISCRETION IN

  RESOLVING THOSE ISSUES ARE SUBJECT TO APPELLATE REVIEW. 

MR. CHIEF JUSTICE BURGER, CIRCUIT JUSTICE. 

THIS APPLICATION COMES BEFORE ME AS CIRCUIT JUSTICE FOR A STAY OF
THE DISTRICT JUDGE'S ORDER SETTING TRIAL FOR SEPTEMBER 30, 1974, OF
UNITED STATES V. MITCHELL, D.C. CRIM. NO. 74 - 110.  DEFENDANT
EHRLICHMAN SEEKS THIS STAY ALLEGING THAT PAST AND CONTINUING
PREJUDICIAL PUBLICITY HAS MADE IT IMPOSSIBLE FOR HIM TO RECEIVE A FAIR
TRIAL IN THIS VENUE AT THE TIME NOW SET, AND THAT HE WILL NOT HAVE
SUFFICIENT TIME TO PREPARE HIS DEFENSE. 

THE TRIAL HAD BEEN SET FOR SEPTEMBER 9, 1974.  WHEN BOTH THE
PROSECUTION AND DEFENSE ASKED FOR MORE TIME TO PREPARE FOR TRIAL THE
DISTRICT COURT DENIED THE REQUESTS, AND APPLICANT, INTER ALIA,
PETITIONED FOR A WRIT OF MANDAMUS FROM THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT TO DELAY THE TRIAL.  THAT
COURT, SITTING EN BANC, DID NOT RULE DIRECTLY ON THE PETITION, BUT
INSTEAD REMANDED AND RECOMMENDED THAT THE DISTRICT JUDGE CONSIDER
DELAYING THE TRIAL THREE OR FOUR WEEKS SO ALL PARTIES WOULD HAVE MORE
TIME TO PREPARE; ONE JUDGE BASED HIS CONCURRENCE ON PREJUDICIAL
PUBLICITY AS WELL.  THE DISTRICT JUDGE THEN ORDERED THE TRIAL TO BE
DEFERRED FOR THREE WEEKS FROM SEPTEMBER 9, 1974. 

THE PRESENT APPLICATION IS PRESENTED TO ME, AS CIRCUIT JUSTICE FOR
THE DISTRICT OF COLUMBIA CIRCUIT, TO DELAY THE START OF THE TRIAL UNTIL
JANUARY 1975.  THE APPLICATION PUTS FORTH THE SAME REASONS AS WERE
BEFORE THE COURT OF APPEALS.  THE UNITED STATES HAS FILED A RESPONSE
OPPOSING ANY FURTHER DELAY. 

THE FUNCTION OF A CIRCUIT JUSTICE IN THESE CIRCUMSTANCES IS
LIMITED.  IT DOES NOT ORDINARILY ENCOMPASS OVERSEEING PRETRIAL ORDERS
IN PENDING CRIMINAL PROSECUTIONS.  SUCH MATTERS ARE ESSENTIALLY WITHIN
THE SOUND JUDICIAL DISCRETION OF THE TRIAL JUDGE WHO MUST BE PRESUMED
TO BE INTIMATELY AWARE OF THE CASE AT HAND AND OTHER FACTORS WHICH BEAR
UPON THE RELIEF SOUGHT.  FROHWERK V. UNITED STATES, 249 U.S. 204
(1919); GOLDSBY V. UNITED STATES, 160 U.S. 70 (1895); ISAACS V. UNITED
STATES, 159 U.S. 487 (1895). 

THE LIMITED POWER OF A COURT OF APPEALS, WHETHER BY WAY OF MANDAMUS
OR IN ITS SUPERVISORY FUNCTION OVER TRIAL COURTS, MUST BE LOOKED TO AS
THE PRIMARY SOURCE OF RELIEF SINCE SUCH COURTS ARE IN CLOSER TOUCH WITH
THE FACTS AND FACTORS PRESENTED IN THE WORKINGS OF THE REGULAR
ACTIVITIES OF THE DISTRICT COURTS WITHIN A CIRCUIT. 

HERE THE COURT OF APPEALS HAS DENIED MANDAMUS RELIEF, BUT EXERCISED
SOMETHING IN THE NATURE OF A DE FACTO SUPERVISORY FUNCTION BY REMANDING
THE ISSUE TO THE DISTRICT COURT WITH INTIMATIONS THAT SOME DELAY WOULD
BE APPROPRIATE.  IT IS ONLY A COINCIDENCE THAT THE LOCATION OF THIS
TRIAL IS IN THE SAME CITY AS THE SEAT OF THIS COURT, GIVING MEMBERS OF
THIS COURT ESSENTIALLY THE SAME EXPOSURE AS THAT OF THE TRIAL JUDGE AND
THE COURT OF APPEALS TO THE PRETRIAL PUBLICITY WHICH FORMS A PARTIAL
BASIS FOR THE RELIEF REQUESTED.  EXCEPT FOR CASES COMING FROM THE
DISTRICT OF COLUMBIA CIRCUIT, A JUSTICE OF THIS COURT IS ORDINARILY FAR
REMOVED FROM THE SETTING OF THE TRIAL.  GENERAL PRINCIPLES ABOUT THE
FUNCTION OF A CIRCUIT JUSTICE IN A SITUATION OF THIS KIND ARE NOT TO BE
FORMED FROM SUCH A UNIQUE SETTING.  AN INDIVIDUAL CIRCUIT JUSTICE DOES
NOT POSSESS THE SUPERVISORY POWERS OF A COURT OF APPEALS CONCERNING THE
ACTIVITIES OF THE DISTRICT COURTS WITHIN ITS CIRCUIT. 

ONE COURSE OPEN IN THIS SETTING AND IN LIGHT OF THE GRAVITY OF THE
CLAIM OF PREJUDICIAL PRETRIAL PUBLICITY WOULD BE TO REFER THIS
APPLICATION TO THE FULL COURT FOR ACTION AT THE OPENING OF THE OCTOBER
1974 TERM ON OCTOBER 7.  HOWEVER, THIS IN ITSELF WOULD DEFER STARTING
OF THE TRIAL TO AT LEAST SOMETIME IN THE LATTER HALF OF OCTOBER SINCE
NEITHER PARTY WOULD BE EXPECTED TO GO TO TRIAL IMMEDIATELY FOLLOWING
THIS COURT'S ACTION.  TO FOLLOW THIS COURSE WOULD HAVE THE OPERATIVE
EFFECT OF AN ADDITIONAL STAY OF THREE OR FOUR WEEKS, ASSUMING DENIAL OF
THE RELIEF REQUESTED. 

THE RESPONSIBILITY FOR PASSING ON A CLAIM FOR CHANGE OF VENUE OR
DELAY IN A TRIAL BECAUSE OF PREJUDICIAL PRETRIAL PUBLICITY CALLS FOR
THE EXERCISE OF THE HIGHEST ORDER OF SOUND JUDICIAL DISCRETION BY THE
DISTRICT COURT.  DOUBTS ABOUT THE CORRECTNESS OF A DISTRICT COURT
DECISION FIXING A TRIAL DATE IN THESE CIRCUMSTANCES, PARTICULARLY AFTER
THE COURT OF APPEALS HAS REVIEWED THE MATTER AND DENIED AN APPLICATION
FOR MANDAMUS, ARE NOT SUFFICIENT TO FORM A BASIS FOR CONTRARY ACTION BY
AN INDIVIDUAL CIRCUIT JUSTICE.  THE DISTRICT COURT BEARS RESPONSIBILITY
COMMENSURATE WITH ITS AUTHORITY IN SUCH MATTERS, AND ONLY IN THE MOST
EXTRAORDINARY CIRCUMSTANCES SHOULD AN INDIVIDUAL CIRCUIT JUSTICE
INTERVENE. 

THE APPLICATION FOR A STAY IS THEREFORE DENIED, BUT THIS ACTION IS
NOT TO BE TAKEN AS INTIMATING ANY VIEW WHATEVER ON THE ISSUES PRESENTED
BY THE ORDER OF THE DISTRICT COURT OR THE ACTION OF THE COURT OF
APPEALS.  THE RESOLUTION OF THESE ISSUES SHOULD THEY ARISE AFTER
VERDICT MUST AWAIT THE NORMAL APPELLATE PROCESSES.  SHEPPARD V.
MAXWELL, 384 U.S. 333, 362 (1966). 

              APPLICATION DENIED. 
..END :













TIMES-PICAYUNE PUBLISHING CORP. V. SCHULINGKAMP, 419 U.S. 1301 


       TIMES-PICAYUNE PUBLISHING CORP. V. SCHULINGKAMP

       ON APPLICATION FOR STAY

        NO. A - 1305.  DECIDED JULY 29, 1974 


    APPLICATION FOR STAY OF LOUISIANA TRIAL COURT'S ORDER

  RESTRICTING MEDIA COVERAGE OF TRIALS OF DEFENDANTS ACCUSED OF

  COMMITTING HIGHLY PUBLICIZED RAPE AND MURDER IS GRANTED PENDING

  THE TIMELY FILING AND DISPOSITION OF A PETITION FOR CERTIORARI IN

  THIS COURT, WHERE THE ORDER IMPOSED PERVASIVE RESTRAINTS OF

  UNCERTAIN DURATION, AND WHERE ALTERNATIVE MEANS FOR PROTECTING

  THE DEFENDANTS' RIGHTS TO A FAIR TRIAL APPEAR TO HAVE BEEN

  AVAILABLE TO THE TRIAL COURT. 

MR. JUSTICE POWELL, CIRCUIT JUSTICE. 

THIS IS AN APPLICATION FOR STAY OF AN ORDER OF THE LOUISIANA
CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS RESTRICTING MEDIA
COVERAGE OF THE TRIALS OF TWO DEFENDANTS ACCUSED OF COMMITTING A HIGHLY
PUBLICIZED RAPE AND MURDER IN THE CITY OF NEW ORLEANS.  THE APPLICANT,
A LOUISIANA CORPORATION THAT OWNS AND PUBLISHES TWO OF THE CITY'S DAILY
NEWSPAPERS, HAS ASKED THAT I STAY THAT ORDER PENDING FILING AND
DISPOSITION OF A PETITION FOR A WRIT OF CERTIORARI IN THIS COURT. 
RESPONDENT, THE HONORABLE OLIVER P. SCHULINGKAMP, HAS AT MY REQUEST
FILED A MEMORANDUM IN OPPOSITION TO THE APPLICATION.  THE RECORD BEFORE
ME INDICATES A SUBSTANTIAL POSSIBILITY THAT THE STATE COURT'S ORDER IS
INCONSISTENT WITH THIS COURT'S DECISIONS GOVERNING PRIOR RESTRAINT OF
THE NEWS MEDIA AND THAT CONTINUANCE OF THE ORDER PENDING CONSIDERATION
OF A PETITION FOR A WRIT OF CERTIORARI WOULD INFLICT IRREPARABLE HARM. 
I THEREFORE HAVE GRANTED THE REQUESTED STAY. 

IN APRIL 1973, A YOUNG WHITE NURSING STUDENT WAS RAPED AND MURDERED
FOLLOWING HER VISIT TO AN ELDERLY PATIENT LIVING IN ONE OF THE CITY;S
PUBLIC HOUSING PROJECTS.  SHORTLY THEREAFTER, TWO NEGRO SUSPECTS WERE
ARRESTED AND CHARGED WITH THE CRIME.  THE CASE IMMEDIATELY BECAME THE
FOCAL POINT IN THE MEDIA FOR A NUMBER OF MORE GENERALIZED CONCERNS. 
THE STATE UNIVERSITY PROGRAM THAT PROMPTED THE STUDENT'S UNESCORTED
VISIT TO THE HOUSING PROJECT WAS CALLED INTO SHARP QUESTION, AS WAS THE
SUFFICIENCY OF LAW ENFORCEMENT EFFORTS IN HIGH-CRIME AREAS OF NEW
ORLEANS.  THE CASE ALSO OCCASIONED CRITICISM OF THE CRIMINAL AND
JUVENILE JUSTICE SYSTEMS. 

MUCH OF THE INITIAL PUBLICITY WAS DIRECTED TOWARD ONE DEFENDANT, A
17-YEAR-OLD WITH AN APPARENTLY EXTENSIVE HISTORY OF JUVENILE OFFENSES. 
NEWSPAPER STORIES RECOUNTED IN SOME DETAIL THE CIRCUMSTANCES LEADING TO
HIS ARREST AND HIS SUBSEQUENT ALLEGED DISCLOSURE OF THE LOCATION WHERE
THE VICTIM'S BODY WAS RECOVERED.  ADDITIONALLY, STORIES DWELT ON HIS
PRIOR JUVENILE OFFENSES.  ALMOST ALL OF THE MANY NEWSPAPER REFERENCES
CHARACTERIZED HIM AS A YOUTH WITH A HISTORY OF 43 JUVENILE ARRESTS, THE
ACCURACY OF WHICH HAS SINCE BEEN DISPUTED.  SOME NEWSPAPER ACCOUNTS
REFERRED TO HIS PREVIOUS ARREST ON CHARGES OF MURDER AND ARMED ROBBERY
WITHOUT SIMULTANEOUSLY REVEALING THAT THOSE CHARGES HAD BEEN DROPPED
FOR INSUFFICIENT EVIDENCE.  OTHERS REPORTED A PSYCHIATRIC DIAGNOSIS OF
THIS DEFENDANT MADE SEVERAL YEARS EARLIER AND APPARENTLY CONTAINED IN
THE RECORDS OF THE JUVENILE PROBATION OFFICER. 

WITHIN A FEW DAYS REPORTS CONCERNING THE CRIME, THE ACCUSED, AND
OTHER RELATED CONCERNS CEASED TO BE OF BANNER IMPORTANCE.  STORIES
BECAME SHORTER AND BEGAN TO MOVE FROM THE FIRST PAGE TO LESS PROMINENT
POSITIONS IN THE PAPERS.  NEWSPAPER COVERAGE APPEARS TO HAVE CEASED
WITHIN SOME 10 DAYS OF THE ARREST AND THE PAPERS APPARENTLY PUBLISHED
NO STORIES ABOUT THE DEFENDANTS FROM THE LATTER PART OF APRIL UNTIL
LATE JANUARY OF THE FOLLOWING YEAR, WHEN ONE SUBDUED STORY ANNOUNCED
THE ANTICIPATED INITIATION OF PRETRIAL MOTIONS IN THE CASE.  /1/ 

SOME OF THE NEWSPAPER REPORTING THAT OCCURRED IN APRIL CAN HARDLY BE
CHARACTERIZED AS RESPONSIBLE JOURNALISM.  LIKE MANY STATES, LOUISIANA
MAINTAINS THE CONFIDENTIALITY OF THE RECORDS OF JUVENILE OFFENDERS. 
LA. REV. STAT. ANN. 13:1586.3 (SUPP. 1974).  THE RECORD DOES NOT
INDICATE HOW REPORTERS CAME INTO POSSESSION OF SOME OF THEIR
INFORMATION.  ADDITIONALLY, THERE APPEAR TO BE INACCURACIES OR PARTIAL
TRUTHS IN MATTERS THAT ARE OF OBVIOUS IMPORTANCE. 

IN MARCH 1974, SOME 11 MONTHS AFTER THE CRIME AND ATTENDENT
EXTENSIVE PUBLICITY, COUNSEL FOR THE DEFENDANT WHO HAD RECEIVED THE
MOST JOURNALISTIC ATTENTION MOVED THAT THE CRIMINAL DISTRICT COURT FOR
THE PARISH OF ORLEANS IMPOSE RESTRICTIONS ON REPORTING OF THE CASE. 
THE COURT GRANTED THE MOTION ON JUNE 17, 1974.  THE COURT'S ORDER
IMPOSES A TOTAL BAN ON REPORTING OF TESTIMONY GIVEN IN HEARINGS ON
PRETRIAL MOTIONS UNTIL AFTER THE SELECTION OF A JURY AND ALSO PLACES
OTHER SELECTIVE RESTRICTIONS IN REPORTING BEFORE AND DURING TRIAL. 

AT THE TIME THE ORDER WAS ISSUED, THE COURT APPARENTLY CONTEMPLATED
ONLY ONE TRIAL.  BY ITS TERMS THE ORDER WAS TO REMAIN IN EFFECT UNTIL
TERMINATION OF THE TRIAL.  THE COURT LATER SEVERED THE DEFENDANTS'
CASES AND ORDERED SEPARATE TRIALS OF THE RAPE AND MURDER CHARGES
AGAINST EACH.  IT MADE NO MODIFICATION OF ITS MEDIA COVERAGE ORDER TO
REFLECT THIS CHANGED CIRCUMSTANCE.  THE APPLICANT HAS REPRESENTED THAT
THE COURT STATED THAT THE ORDER WOULD REMAIN IN EFFECT UNTIL THE
TERMINATION OF THE LAST TRIAL.  RESPONDENT HAS NOT CONTRADICTED THIS
REPRESENTATION, AND I ASSUME IT TO BE CORRECT. 

THE APPLICANT SOUGHT RELIEF FROM BOTH THE LOWER FEDERAL COURTS AND
THE STATE COURT SYSTEM PRIOR TO ADDRESSING THIS APPLICATION TO ME.
AFTER FAILING TO OBTAIN IMMEDIATE INJUNCTIVE RELIEF FROM THE FEDERAL
COURTS, /2/  THE APPLICANT ASKED THE STATE COURT TO VACATE ITS ORDER. 
THAT REQUEST WAS DENIED, AS WAS A REQUEST THAT THE COURT STAY ITS ORDER
PENDING SUBMISSION OF APPLICATION FOR SUPERVISORY AND REMEDIAL WRITS IN
THE LOUISIANA SUPREME COURT.  ON JULY 9, 1974, THE APPLICANT SOUGHT
WRITS OF CERTIORARI, REVIEW, PROHIBITION, AND MANDAMUS, AND A STAY OF
THE STATE TRIAL COURT'S ORDER IN THE LOUISIANA SUPREME COURT.  THAT
SAME DAY THE LOUISIANA SUPREME COURT DENIED RELIEF BY A VOTE OF FOUR TO
THREE, STATING THAT THE "(SHOWING MADE DOES NOT JUSTIFY THE RELIEF
DEMANDED."  FOLLOWING ONE MORE UNSUCCESSFUL ATTEMPT TO OBTAIN AN
INJUNCTION IN THE UNITED STATES DISTRICT COURT, THE APPLICANT HAS
REQUESTED THAT I, AS CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT, STAY THE
STATE COURT'S ORDER PENDING THIS COURT'S CONSIDERATION OF A PETITION
FOR A WRIT OF CERTIORARI. 

I HAVE PREVIOUSLY EXPRESSED MY RELUCTANCE, IN CONSIDERING IN
CHAMBERS STAY APPLICATIONS, TO SUBSTITUTE MY VIEW FOR THAT OF OTHER
COURTS THAT ARE CLOSER TO THE RELEVANT FACTUAL CONSIDERATIONS THAT SO
OFTEN ARE CRITICAL TO THE PROPER RESOLUTION OF THESE QUESTIONS.  GRAVES
V. BARNES, 405 U.S. 1201, 1203 (1972).  IN MY IN-CHAMBERS OPINION IN
THAT CASE, I ARTICULATED THE GENERAL STANDARDS GOVERNING THE GRANT OF A
STAY APPLICATION:  THERE MUST BE A REASONABLE PROBABILITY THAT FOUR
MEMBERS OF THE COURT WOULD CONSIDER THE UNDERLYING ISSUE SUFFICIENTLY
MERITORIOUS FOR THE GRANT OF CERTIORARI OR THE NOTATION OF PROBABLE
JURISDICTION; THERE MUST BE A SIGNIFICANT POSSIBILITY OF REVERSAL OF
THE LOWER COURT'S DECISION; AND THERE MUST BE A LIKELIHOOD THAT
IRREPARABLE HARM WILL RESULT IF THAT DECISION IS NOT STAYED.  IBID. 

THE QUESTION OF THE POSSIBILITY OF IRREPARABLE HARM IS PARTICULARLY
TROUBLESOME IN THIS CASE.  IT PRESENTS A FUNDAMENTAL CONFRONTATION
BETWEEN THE COMPETING VALUES OF FREE PRESS AND FAIR TRIAL, WITH
SIGNIFICANT PUBLIC AND PRIVATE INTERESTS BALANCED ON BOTH SIDES.  IF
THE ORDER IS NOT STAYED, THE PRESS IS SUBJECTED TO SUBSTANTIAL PRIOR
RESTRAINT WITH RESPECT TO A CASE OF WIDESPREAD CONCERN IN THE
COMMUNITY.  IF, ON THE OTHER HAND, THE ORDER IS STAYED AND THE PRESS
FAILS TO ACT WITH SCRUPULOUS RESPONSIBILITY, THE DEFENDANTS'
CONSTITUTIONAL RIGHT TO A FAIR TRIAL MAY BE SERIOUSLY ENDANGERED. 

THE CHALLENGED PORTIONS OF THE ORDER OF THE CRIMINAL DISTRICT COURT
FOR THE PARISH OF ORLEANS IMPOSE A TOTAL PROHIBITION ON PUBLICATION OF
TESTIMONY ADDUCED IN PRETRIAL HEARINGS UNTIL AFTER SELECTION OF A
JURY.  NOTING THAT EXTENSIVE TESTIMONY WOULD BE REQUIRED IN CONSIDERING
THE MANY PRETRIAL MOTIONS, INCLUDING MOTIONS TO SUPPRESS AN ALLEGED
CONFESSION AND OTHER EVIDENCE, THE COURT SPECIFICALLY ORDERED "THAT THE
REPORTING OF SUCH TESTIMONY BE DEFERRED UNTIL AFTER THE JURY HAS BEEN
SELECTED IN ORDER TO PRECLUDE THE POSSIBILITY OF SUCH TESTIMONY
INFLUENCING, IN ANY WAY, PROSPECTIVE JURORS YET TO BE SELECTED, AND
RENDERING MORE DIFFICULT THE TASK OF SELECTING SAID JURORS."  IN
ADDITION, THE STATE COURT ORDER IMPOSES OTHER SELECTIVE RESTRICTIONS ON
WHAT MAY BE PUBLISHED BOTH BEFORE AND DURING TRIAL.  THESE RESTRICTIONS
ARE AIMED AT THE CONTENT OF NEWS REPORTING.  THE ORDER REQUIRES THAT
THE MEDIA AVOID PUBLICATION OF INTERVIEWS WITH SUBPOENAED WITNESSES. 
IT ALSO PROHIBITS PUBLICATION OF ANY OF THE DEFENDANTS' CRIMINAL
RECORDS OR DISCREDITABLE ACTS OR OF ANY POSSIBLE CONFESSIONS OR
INCULPATORY STATEMENTS UNLESS MADE PART OF THE EVIDENCE IN THE COURT
RECORD.  THE ORDER FORBIDS PUBLICATION OF ANY TESTIMONY STRICKEN BY THE
COURT UNLESS IDENTIFIED AS HAVING BEEN STRICKEN AND BARS PUBLICATION OF
ANY LEAKS, STATEMENTS, OR CONCLUSIONS OF GUILT OR INNOCENCE THAT MIGHT
BE EXPRESSED OR IMPLIED BY STATEMENTS OF THE POLICE, PROSECUTING
ATTORNEYS, OR DEFENSE COUNSEL.  FINALLY, THE ORDER PROHIBITS ANY
EDITORIAL COMMENT PRECEDING OR DURING TRIAL "WHICH TENDS TO INFLUENCE
THE COURT, JURY, OR WITNESSES."  BY ITS TERMS, THE ORDER REMAINS IN
EFFECT "UNTIL THE CONCLUSION OF THE TRIAL."  THE COURT'S DECISION TO
CONTINUE THE ORDER DURING PENDENCY OF ALL OF THE TRIALS ENSURES THAT IT
WILL EXTEND OVER AN INDEFINITE AND POSSIBLY LENGTHY PERIOD OF TIME. 

THE COURT'S ORDER IMPOSES SIGNIFICANT PRIOR RESTRAINTS ON MEDIA
PUBLICATION.  AS SUCH, IT WOULD COME TO THIS COURT BEARING A HEAVY
PRESUMPTION AGAINST ITS CONSTITUTIONAL VALIDITY.'"  NEW YORK TIMES CO.
V. UNITED STATES, 403 U.S. 713, 714 (1971); ORGANIZATION FOR A BETTER
AUSTIN V. KEEFE, 402 U.S. 415, 419 (1971); BANTAM BOOKS, INC. V.
SULLIVAN, 372 U.S. 58, 70 (1963); NEAR V. MINNESOTA EX REL. OLSON, 283
U.S. 697 (1931).  DECISIONS OF THIS COURT REPEATEDLY HAVE RECOGNIZED
THAT TRIALS ARE PUBLIC EVENTS.  SEE, E.G., SHEPPARD V. MAXWELL, 384
U.S. 333, 349 - 350 (1966); ESTES V. TEXAS, 381 U.S. 532, 541 (1965);
CRAIG V. HARNEY, 331 U.S. 367, 374 (1947).  AND #REPORTERS . . . ARE
PLAINLY FREE TO REPORT WHATEVER OCCURS IN OPEN COURT THROUGH THEIR
RESPECTIVE MEDIA."  ESTES V. TEXAS, SUPRA, AT 541 - 542. 

THIS COURT ALSO HAS SHOWN A SPECIAL SOLICITUDE FOR PRESERVING
FAIRNESS IN A CRIMINAL TRIAL.  "LEGAL TRIALS ARE NOT LIKE ELECTIONS, TO
BE WON THROUGH THE USE OF THE MEETINGHALL, THE RADIO, AND THE
NEWSPAPER."  BRIDGES V. CALIFORNIA, 314 U.S. 252, 271 (1941).  SEE ALSO
RIDEAU V. LOUISIANA, 373 U.S. 723, 726 (1963); IRVIN V. DOWD, 466 U.S.
717 (1961).  THE TASK OF RECONCILING FIRST AMENDMENT RIGHTS WITH THE
DEFENDANT'S RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY IS NOT AN
EASY ONE.  THIS COURT HAS OBSERVED IN DICTUM THAT NEWSMEN MIGHT BE
PROHIBITED FROM PUBLISHING INFORMATION ABOUT TRIALS IF SUCH
RESTRICTIONS WERE NECESSARY TO ASSURE A DEFENDANT A FAIR TRIAL. 
BRANZBURG V. HAYES, 408 U.S. 665, 685 (1972).  THERE WAS NO INDICATION
IN THAT OPINION, HOWEVER, THAT THE STANDARDS FOR DETERMINING THE
PROPRIETY OF RESORT TO SUCH ACTION WOULD MATERIALLY DIFFER FROM THOSE
APPLIED IN OTHER DECISIONS INVOLVING PRIOR RESTRAINTS OF SPEECH AND
PUBLICATION. 

2 NEED ONLY CONSIDER THIS QUESTION IN THE LIMITED CONTEXT OF AN
APPLICATION FOR A STAY.  ON THE RECORD BEFORE ME, AND CERTAINLY IN THE
ABSENCE OF ANY SHOWING OF AN IMMINENT THREAT TO FAIR TRIAL, I CANNOT
SAY THAT THE ORDER OF THE STATE COURT WOULD WITHSTAND THE LIMITATIONS
THAT THIS COURT HAS APPLIED IN DETERMINING THE PROPRIETY OF PRIOR
RESTRAINTS ON PUBLICATION.  CF. UNITED STATES V. DICKINSON, 465 F.2D
496 (CA5 1972).  THE STATE COURT WAS PROPERLY CONCERNED THAT THE TYPE
OF NEWS COVERAGE DESCRIBED ABOVE MIGHT BE RESUMED AND MIGHT THREATEN
THE DEFENDANTS' RIGHTS TO A FAIR TRIAL.  BUT THE RESTRAINTS IT HAS
IMPOSED ARE BOTH PERVASIVE AND OF UNCERTAIN DURATION.  THEY INCLUDE
LIMITATIONS ON THE TIMING AS WELL AS THE CONTENT OF MEDIA PUBLICATION,
CF. MIAMI HERALD PUBLISHING CO. V. TORNILLO, 418 U.S. 241 (1974). 
MOREOVER, THE COURT HAS AVAILABLE ALTERNATIVE MEANS FOR PROTECTING THE
DEFENDANTS' RIGHTS TO A FAIR TRIAL.  /3/ 

THE ISSUES UNDERLYING THIS CASE ARE IMPORTANT AND DIFFICULT. 
WITHOUT ANTICIPATING MY VIEWS ON THE MERITS, I HAVE CONCLUDED THAT THIS
APPLICATION SATISFIES THE STANDARDS FOR THE GRANT OF A STAY. 
ACCORDINGLY, I HAVE DECIDED TO STAY THAT PORTION OF THE ORDER OF THE
LOUISIANA CRIMINAL DISTRICT COURT THAT IMPOSES DIRECT LIMITATIONS ON
MEDIA REPORTING PENDING THE TIMELY FILING AND DISPOSITION OF A PETITION
FOR A WRIT OF CERTIORARI IN THIS COURT.  /4/ 

/1/  STORIES FROM THE APPLICANT'S NEWSPAPERS WERE INCLUDED IN THE
DEFENDANT'S MOTION TO RESTRICT MEDIA COVERAGE AND HAVE BEEN MADE PART
OF THIS APPLICATION.  THEY REVEAL THAT THE CRIME OBTAINED IMMEDIATE
FIRST-PAGE BANNER COVERAGE.  ON APRIL 10, 1973, STORIES APPEARED THAT
REPORTED DISCOVERY OF THE VICTIM'S BODY AND THE ARREST OF A JUVENILE IN
CONNECTION WITH THE CRIME.  BY THE NEXT DAY, THIS DEFENDANT HAD BEEN
IDENTIFIED AND FRONT-PAGE STORIES BEGAN TO PORTRAY HIS HISTORY OF
JUVENILE ARRESTS.  THE ARREST OF THE SECOND DEFENDANT RECEIVED BANNER
COVERAGE ON APRIL 12, AS DID A REPORT THAT ALLEGEDLY LINKED PROPERTY
STOLEN FROM THE VICTIM TO THE POSSESSION OF THE FIRST DEFENDANT.  THE
FOLLOWING DAY FIRST-PAGE BANNER STORIES APPEARED PURPORTEDLY DETAILING
THE FIRST DEFENDANT'S JUVENILE RECORD AND HIS PSYCHIATRIC DIAGNOSIS. 
ONE NEWSPAPER ALSO RAN A PICTURE OF HIM BEING ESCORTED TO ARRAIGNMENT
WITH HIS HANDS CUFFED BEHIND HIS BACK.  DURING THAT SAME PERIOD OTHER
STORIES DEALT WITH MORE GENERAL TOPICS, AND MANY MENTIONED THIS
DEFENDANT AND HIS JUVENILE RECORD.     PUBLICITY BEGAN TO SUBSIDE
AROUND APRIL 15 AND ENDED A FEW DAYS THEREAFTER.  THE RECORD DOES NOT
DISCLOSE ANY SUBSEQUENT NEWSPAPER ACCOUNTS MENTIONING THE DEFENDANTS
UNTIL THE APPEARANCE ON JANUARY 12, 1974, OF A STORY REPORTING THE
EXPECTED INITIATION OF ROUTINE PRETRIAL MOTIONS IN THE CASE. 

THE RECORD DOES NOT SPECIFICALLY REVEAL THE NATURE AND EXTENT OF
RADIO AND TELEVISION REPORTING.  I ASSUME THAT ITS TIMING AND INTENSITY
MORE OR LESS PARALLELED THAT OF THE NEWSPAPER REPORTING. 

/2/  THE UNITED STATES DISTRICT COURT CONDUCTED A HEARING AT WHICH
IT HEARD ARGUMENT OF COUNSEL AND THE TESTIMONY OF THE RESPONDENT
HEREIN.  THEREAFTER, THE COURT DETERMINED THAT IT SHOULD ABSTAIN FROM
INTERFERING WITH THE STATE PROCEEDINGS AT THAT STAGE.  THE APPLICANT
NOTED AN APPEAL FROM THAT DECISION AND REQUESTED THAT THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT STAY THE STATE COURT ORDER
PENDING APPEAL.  A PANEL OF THE FIFTH CIRCUIT DENIED THE REQUEST FOR A
STAY.  NEITHER OF THESE DECISIONS IS BEFORE ME TODAY. 

/3/  THE COURT HAS ALREADY INVOKED SEVERAL OF THESE PROCEDURES.  FOR
EXAMPLE, PORTIONS OF THE COURT'S ORDER PROHIBIT MEMBERS OF THE BAR AND
OTHER PERSONS UNDER THE COURT'S SUPERVISION AND CONTROL FROM MAKING
EXTRAJUDICIAL STATEMENTS PRIOR TO THE TERMINATION OF TRIAL.  THESE
PROHIBITIONS ARE NOT CHALLENGED HERE.  ADDITIONALLY, RESPONDENT HAS
INDICATED HIS INTENTION TO SEQUESTER THE JURIES.  THIS WILL PROTECT
AGAINST MANY OF THE HAZARDS THAT THE SELECTIVE RESTRICTIONS ON
REPORTING DURING TRIAL ARE DESIGNED TO PREVENT. 

SOME OTHER OPTIONS MAY YET BE USED TO PROTECT THE DEFENDANTS'
RIGHTS.  THE DEFENDANT WHO SOUGHT THE ORDER APPARENTLY DID NOT REQUEST
THAT THE PRETRIAL HEARINGS BE CLOSED TO THE PUBLIC AND PRESS, AND THE
COURT DOES NOT SEEM TO HAVE CONTEMPLATED THAT POSSIBILITY.  AS AN
INITIAL MATTER, THE COURT'S POWER TO TAKE SUCH ACTION IS A QUESTION
GOVERNED BY STATE LAW.  UNLIKE SOME STATES, LOUISIANA DOES NOT APPEAR
TO HAVE A SPECIFIC PROVISION AUTHORIZING SUCH ACTION.  CF. CAL. PENAL
CODE 868 (1970); IOWA CODE 761.13 (1973); OD MONT. REV. CO95 - 1202(C)
(1969).  THIS COURT HAS NOT BEEN CALLED UPON TO DETERMINE WHETHER THESE
PROVISIONS ARE CONSTITUTIONAL, AND I EXPRESS NO VIEW ON THAT QUESTION. 
OF COURSE, THE COURT MUST CONDUCT VOIR DIRE OF THE PROSPECTIVE JURORS
IN THESE CASES.WITH PARTICULAR CARE.  FINALLY, THE COURT RETAINS THE
POWER TO HOLD PERSONS, INCLUDING MEMBERS OF THE MEDIA, IN CONTEMPT IN
PARTICULAR LIMITED CIRCUMSTANCES.  SEE CRAIG V. HARNEY, 331 U.S. 367
(1947); PENNEKAMP V. FLORIDA, 328 U.S. 331 (1946); BRIDGES V.
CALIFORNIA, 314 U.S. 252 (1941). 

/4/  THE APPLICANT HAS NOT QUESTIONED THE PORTIONS OF THE COURT'S
ORDER THAT RELATE TO THE CONDUCT OF OTHER PERSONS, AND THIS STAY ORDER
DOES NOT AFFECT THEM.  MY ORDER IS LIMITED TO THE PORTION OF THE
RESPONDENT'S ORDER DIRECTED SPECIFICALLY TO THE NEWS MEDIA.  IT DOES
NOT, HOWEVER, STAY THE PORTION OF THE COURT'S ORDER PROHIBITING THE USE
OF ELECTRONIC OR MECHANICAL EQUIPMENT WITHIN THE COURT DURING THE TRIAL
OR RELATED PROCEEDINGS. 

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND THE VIEUX CARRE
COURIER PUBLISHING COMPANY, AS AMICI CURIAE, HAVE REQUESTED
ADDITIONALLY THAT I ENJOIN ANY COURT PROCEEDING ABOUT WHICH THE PRESS
IS PROHIBITED FROM REPORTING PENDING FINAL DISPOSITION OF THIS CASE ON
THE MERITS.  I FIND THAT ACTION TO BE UNWARRANTED AND UNWISE. 
..END :




















MILLIKEN V. BRADLEY, 418 U.S. 717 


       MILLIKEN, GOVERNOR OF MICHIGAN, ET AL. V. BRADLEY ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 434.  ARGUED FEBRUARY 27, 1974--DECIDED JULY 25,

 1974; /1/  484 F.2D 215, REVERSED AND REMANDED. 

/1/  TOGETHER WITH NO. 73-435, ALLEN PARK PUBLIC SCHOOLS ET AL. V.
BRADLEY ET AL., AND NO. 73-436, GROSSE POINTE PUBLIC SCHOOL SYSTEM V.
BRADLEY ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


    RESPONDENTS BROUGHT THIS CLASS ACTION, ALLEGING THAT THE

  DETROIT PUBLIC SCHOOL SYSTEM IS RACIALLY SEGREGATED AS A RESULT

  OF THE OFFICIAL POLICIES AND ACTIONS OF PETITIONER STATE AND CITY

  OFFICIALS, AND SEEKING IMPLEMENTATION OF A PLAN TO ELIMINATE THE

  SEGREGATION AND ESTABLISH A UNITARY NONRACIAL SCHOOL SYSTEM.  THE

  DISTRICT COURT, AFTER CONCLUDING THAT VARIOUS ACTS BY THE

  PETITIONER DETROIT BOARD OF EDUCATION HAD CREATED AND PERPETUATED

  SCHOOL SEGREGATION IN DETROIT, AND THAT THE ACTS OF THE BOARD, AS

  A SUBORDINATE ENTITY OF THE STATE, WERE ATTRIBUTABLE TO THE

  STATE, ORDERED THE BOARD TO SUBMIT DETROIT-ONLY DESEGREGATION

  PLANS.  THE COURT ALSO ORDERED THE STATE OFFICIALS TO SUBMIT

  DESEGREGATION PLANS ENCOMPASSING THE THREE-COUNTY METROPOLITAN

  AREA, DESPITE THE FACT THAT THE 85 OUTLYING SCHOOL DISTRICTS IN

  THESE THREE COUNTIES WERE NOT PARTIES TO THE ACTION AND THERE WAS

  NO CLAIM THAT THEY HAD COMMITTED CONSTITUTIONAL VIOLATIONS. 

  SUBSEQUENTLY, OUTLYING SCHOOL DISTRICTS WERE ALLOWED TO

  INTERVENE, BUT WERE NOT PERMITTED TO ASSERT ANY CLAIM OR DEFENSE

  ON ISSUES PREVIOUSLY ADJUDICATED OR TO REOPEN ANY ISSUE

  PREVIOUSLY DECIDED, BUT WERE ALLOWED MERELY TO ADVISE THE COURT

  AS TO THE PROPRIETY OF A METROPOLITAN PLAN AND TO SUBMIT ANY

  OBJECTIONS, MODIFICATIONS, OR ALTERNATIVES TO ANY SUCH PLAN. 

  THEREAFTER, THE DISTRICT COURT RULED THAT IT WAS PROPER TO

  CONSIDER METROPOLITAN PLANS, THAT DETROIT-ONLY PLANS SUBMITTED BY

  THE BOARD AND RESPONDENTS WERE INADEQUATE TO ACCOMPLISH

  DESEGREGATION, AND THAT THEREFORE IT WOULD SEEK A SOLUTION BEYOND

  THE LIMITS OF THE DETROIT SCHOOL DISTRICT, AND CONCLUDED THAT

  "(SCHOOL DISTRICT LINES ARE SIMPLY MATTERS OF POLITICAL

  CONVENIENCE AND MAY NOT BE USED TO DENY CONSTITUTIONAL RIGHTS." 

  WITHOUT HAVING EVIDENCE THAT THE SUBURBAN SCHOOL DISTRICTS HAD

  COMMITTED ACTS OF DE JURE SEGREGATION, THE COURT APPOINTED A

PANEL TO SUBMIT A PLAN FOR THE DETROIT SCHOOLS THAT WOULD

  ENCOMPASS AN ENTIRE DESIGNATED DESEGREGATION AREA CONSISTING OF

  53 OF THE 85 SUBURBAN SCHOOL DISTRICTS PLUS DETROIT, AND ORDERED

  THE DETROIT BOARD TO ACQUIRE AT LEAST 295 SCHOOL BUSES TO PROVIDE

  TRANSPORTATION UNDER AN INTERIM PLAN TO BE DEVELOPED FOR THE 1972

  - 1973 SCHOOL YEAR.  THE COURT OF APPEALS, AFFIRMING IN PART,

  HELD THAT THE RECORD SUPPORTED THE DISTRICT COURT'S FINDING AS TO

  THE CONSTITUTIONAL VIOLATIONS COMMITTED BY THE DETROIT BOARD AND

 THE STATE OFFICIALS; THAT THEREFORE THE DISTRICT COURT WAS

  AUTHORIZED AND REQUIRED TO TAKE EFFECTIVE MEASURES TO DESEGREGATE

  THE DETROIT SCHOOL SYSTEM; AND THAT A METROPOLITAN AREA PLAN

  EMBRACING THE 53 OUTLYING DISTRICTS WAS THE ONLY FEASIBLE

  SOLUTION AND WAS WITHIN THE DISTRICT COURT'S EQUITY POWERS.  BUT

  THE COURT REMANDED SO THAT ALL SUBURBAN SCHOOL DISTRICTS THAT

  MIGHT BE AFFECTED BY A METROPOLITAN REMEDY COULD BE MADE PARTIES

  AND HAVE AN OPPORTUNITY TO BE HEARD AS TO THE SCOPE AND

  IMPLEMENTATION OF SUCH A REMEDY, AND VACATED THE ORDER AS TO THE

  BUS ACQUISITIONS, SUBJECT TO ITS REIMPOSITION AT AN APPROPRIATE

TIME.  HELD:  THE RELIEF ORDERED BY THE DISTRICT COURT AND

  AFFIRMED BY THE COURT OF APPEALS WAS BASED UPON ERRONEOUS

  STANDARDS AND WAS UNSUPPORTED BY RECORD EVIDENCE THAT ACTS OF THE

  OUTLYING DISTRICTS HAD ANY IMPACT ON THE DISCRIMINATION FOUND TO

  EXIST IN THE DETROIT SCHOOLS.  A FEDERAL COURT MAY NOT IMPOSE A

  MULTIDISTRICT, AREAWIDE REMEDY FOR SINGLE-DISTRICT DE JURE SCHOOL

  SEGREGATION VIOLATIONS WHERE THERE IS NO FINDING THAT THE OTHER

  INCLUDED SCHOOL DISTRICTS HAVE FAILED TO OPERATE UNITARY SCHOOL

  SYSTEMS OR HAVE COMMITTED ACTS THAT AFFECTED SEGREGATION WITHIN

  THE OTHER DISTRICTS, THERE IS NO CLAIM OR FINDING THAT THE SCHOOL

  SYSTEMS OR HAVE COMMITTED ACTS THAT EFFECTED SEGREGATION WITHIN

  THE OTHER DISTRICTS, THERE IS NO CLAIM OR FINDING THAT THE SCHOOL

  DISTRICT BOUNDARY LINES WERE ESTABLISHED WITH THE PURPOSE OF

  FOSTERING RACIAL SEGREGATION, AND THERE IS NO MEANINGFUL

  OPPORTUNITY FOR THE INCLUDED NEIGHBORING SCHOOL DISTRICTS TO

  PRESENT EVIDENCE OR BE HEARD ON THE PROPRIETY OF A MULTIDISTRICT

  REMEDY OR ON THE QUESTION OF CONSTITUTIONAL VIOLATIONS BY THOSE

  DISTRICTS.  PP. 737 - 753. 

     (A) THE DISTRICT COURT ERRED IN USING AS A STANDARD THE

  DECLARED OBJECTIVE OF DEVELOPMENT OF A METROPOLITAN AREA PLAN

  WHICH, UPON IMPLEMENTATION, WOULD LEAVE "NO SCHOOL, GRADE OR

  CLASSROOM . . . SUBSTANTIALLY DISPROPORTIONATE TO THE OVERALL

  PUPIL RACIAL COMPOSITION" OF THE METROPOLITAN AREA AS A WHOLE. 

  THE CLEAR IMPORT OF SWANN V. BOARD OF EDUCATION, 402 U.S. 1, IS

  THAT DESEGREGATION, IN THE SENSE OF DISMANTLING A DUAL SCHOOL

  SYSTEM, DOES NOT REQUIRE ANY PARTICULAR RACIAL BALANCE.  PP. 739

  - 741. 

     (B) WHILE BOUNDARY LINES MAY BE BRIDGED IN CIRCUMSTANCES WHERE

  THERE HAS BEEN A CONSTITUTIONAL VIOLATION CALLING FOR

  INTERDISTRICT RELIEF, SCHOOL DISTRICT LINES MAY NOT BE CASUALLY

  IGNORED OR TREATED AS A MERE ADMINISTRATIVE CONVENIENCE;

  SUBSTANTIAL LOCAL CONTROL OF PUBLIC EDUCATION IN THIS COUNTRY IS

  DEEPLY ROOTED TRADITION.  PP. 741 - 742. 

     (C) THE INTERDISTRICT REMEDY COULD EXTENSIVELY DISRUPT AND

  ALTER THE STRUCTURE OF PUBLIC EDUCATION IN MICHIGAN, SINCE THAT

  REMEDY WOULD REQUIRE, IN EFFECT, CONSOLIDATION OF 54 INDEPENDENT

  SCHOOL DISTRICTS HISTORICALLY ADMINISTERED AS SEPARATE

  GOVERNMENTAL UNITS INTO A VAST NEW SUPER SCHOOL DISTRICT, AND,

  SINCE--ENTIRELY APART FROM THE LOGISTICAL PROBLEMS ATTENDING

  LARGE-SCALE TRANSPORTATION OF STUDENTS--THE CONSOLIDATION WOULD

  GENERATE OTHER PROBLEMS IN THE ADMINISTRATION, FINANCING, AND

  OPERATION OF THIS NEW SCHOOL SYSTEM.  PP. 742 - 743. 

     (D) FROM THE SCOPE OF THE INTERDISTRICT PLAN ITSELF, ABSENT A

  COMPLETE RESTRUCTURING OF THE MICHIGAN SCHOOL DISTRICT LAWS, THE

  DISTRICT COURT WOULD BECOME, FIRST, A DE FACTO "LEGISLATIVE

  AUTHORITY" TO RESOLVE THE COMPLEX OPERATIONAL PROBLEMS INVOLVED

  AND THEREAFTER A "SCHOOL SUPERINTENDENT" FOR THE ENTIRE AREA, A

  TASK WHICH FEW, IF ANY, JUDGES ARE QUALIFIED TO PERFORM AND ONE

  WHICH WOULD DEPRIVE THE PEOPLE OF LOCAL CONTROL OF SCHOOLS

  THROUGH ELECTED SCHOOL BOARDS.  PP. 743 - 744. 

     (E) BEFORE THE BOUNDARIES OF SEPARATE AND AUTONOMOUS SCHOOL

  DISTRICTS MAY BE SET ASIDE BY CONSOLIDATING THE SEPARATE UNITS

  FOR REMEDIAL PURPOSES OR BY IMPOSING A CROSS-DISTRICT REMEDY, IT

  MUST BE FIRST SHOWN THAT THERE HAS BEEN A CONSTITUTIONAL

  VIOLATION WITHIN ONE DISTRICT THAT PRODUCES A SIGNIFICANT

  SEGREGATIVE EFFECT IN ANOTHER DISTRICT; I.E., SPECIFICALLY, IT

  MUST BE SHOWN THAT RACIALLY DISCRIMINATORY ACTS OF THE STATE OR

  LOCAL SCHOOL DISTRICTS, OR OF A SINGLE SCHOOL DISTRICT HAVE BEEN

  A SUBSTANTIAL CAUSE OF INTERDISTRICT SEGREGATION.  PP. 744 -

745. 

     (F) WITH NO SHOWING OF SIGNIFICANT VIOLATION BY THE 53
OUTLYING

  SCHOOL DISTRICTS AND NO EVIDENCE OF ANY INTERDISTRICT VIOLATION

  OR EFFECT, THE DISTRICT COURT TRANSCENDED THE ORIGINAL THEORY OF

  THE CASE AS FRAMED BY THE PLEADINGS, AND MANDATED A METROPOLITAN

  AREA REMEDY, THE APPROVAL OF WHICH WOULD IMPOSE ON THE OUTLYING

  DISTRICTS, NOT SHOWN TO HAVE COMMITTED ANY CONSTITUTIONAL

  VIOLATION, A STANDARD NOT PREVIOUSLY HINTED AT IN ANY HOLDING OF

  THIS COURT.  P. 745. 

     (G) ASSUMING, ARGUENDO, THAT THE STATE WAS DERIVATIVELY

  RESPONSIBLE FOR DETROIT'S SEGREGATED SCHOOL CONDITIONS, IT DOES

  NOT FOLLOW THAT AN INTERDISTRICT REMEDY IS CONSTITUTIONALLY

  JUSTIFIED OR REQUIRED, SINCE THERE HAS BEEN VIRTUALLY NO SHOWING

  THAT EITHER THE STATE OR ANY OF THE 85 OUTLYING DISTRICTS ENGAGED

  IN ANY ACTIVITY THAT HAD A CROSS-DISTRICT EFFECT.  PP. 748 -

  749. 

     (H) AN ISOLATED INSTANCE OF A POSSIBLE SEGREGATIVE EFFECT AS

  BETWEEN TWO OF THE SCHOOL DISTRICTS INVOLVED WOULD NOT JUSTIFY

  THE BROAD METROPOLITANWIDE REMEDY CONTEMPLATED, PARTICULARLY

  SINCE THAT REMEDY EMBRACED 52 DISTRICTS HAVING NO RESPONSIBILITY

  FOR THE ARRANGEMENT AND POTENTIALLY INVOLVED 503,000 PUPILS IN

  ADDITION TO DETROIT'S 276,000 PUPILS.  PP. 749 - 750. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  STEWART, J., FILED A
CONCURRING OPINION, POST, P. 753.  DOUGLAS, J., FILED A DISSENTING
OPINION, POST, P. 757.  WHITE, J., FILED A DISSENTING OPINION, IN WHICH
DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED, POST, P. 762.  MARSHALL,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS BRENNAN, AND WHITE,
JJ., JOINED, POST, P. 781. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THESE CONSOLIDATED CASES TO DETERMINE
WHETHER A FEDERAL COURT MAY IMPOSE A MULTIDISTRICT, AREAWIDE REMEDY TO
A SINGLE-DISTRICT DE JURE SEGREGATION PROBLEM ABSENT ANY FINDING THAT
THE OTHER INCLUDED SCHOOL DISTRICTS HAVE FAILED TO OPERATE UNITARY
SCHOOL SYSTEMS WITHIN THEIR DISTRICTS, ABSENT ANY CLAIM OR FINDING THAT
THE BOUNDARY LINES OF ANY AFFECTED SCHOOL DISTRICT WERE ESTABLISHED
WITH THE PURPOSE OF FOSTERING RACIAL SEGREGATION IN PUBLIC SCHOOLS,
ABSENT ANY FINDING THAT THE INCLUDED DISTRICTS COMMITTED ACTS WHICH
EFFECTED SEGREGATION WITHIN THE OTHER DISTRICTS, AND ABSENT A
MEANINGFUL OPPORTUNITY FOR THE INCLUDED NEIGHBORING SCHOOL DISTRICTS TO
PRESENT EVIDENCE OR BE HEARD ON THE PROPRIETY OF A MULTIDISTRICT REMEDY
OR ON THE QUESTION OF CONSTITUTIONAL VIOLATIONS BY THOSE NEIGHBORING
DISTRICTS. 

        I 

THE ACTION WAS COMMENCED IN AUGUST 1970 BY THE RESPONDENTS, THE
DETROIT BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE /2/  AND INDIVIDUAL PARENTS AND STUDENTS, ON BEHALF OF A
CLASS LATER DEFINED BY ORDER OF THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF MICHIGAN, DATED FEBRUARY 16, 1971, TO INCLUDE
"ALL SCHOOL CHILDREN IN THE CITY OF DETROIT, MICHIGAN, AND ALL DETROIT
RESIDENT PARENTS WHO HAVE CHILDREN OF SCHOOL AGE."  THE NAMED
DEFENDANTS IN THE DISTRICT COURT INCLUDED THE GOVERNOR OF MICHIGAN, THE
ATTORNEY GENERAL, THE STATE BOARD OF EDUCATION, THE STATE
SUPERINTENDENT OF PUBLIC INSTRUCTION, THE BOARD OF EDUCATION OF THE
CITY OF DETROIT, ITS MEMBERS AND THE CITY'S FORMER SUPERINTENDENT OF
SCHOOLS.  THE STATE OF MICHIGAN AS SUCH IS NOT A PARTY TO THIS
LITIGATION AND REFERENCES TO THE STATE MUST BE READ AS REFERENCES TO
THE PUBLIC OFFICIALS, STATE AND LOCAL, THROUGH WHOM THE STATE IS
ALLEGED TO HAVE ACTED.  IN THEIR COMPLAINT RESPONDENTS ATTACKED THE
CONSTITUTIONALITY OF A STATUTE OF THE STATE OF MICHIGAN KNOWN AS ACT 48
OF THE 1970 LEGISLATURE ON THE GROUND THAT IT PUT THE STATE OF MICHIGAN
IN THE POSITION OF UNCONSTITUTIONALLY INTERFERING WITH THE EXECUTION
AND OPERATION OF A VOLUNTARY PLAN OF PARTIAL HIGH SCHOOL DESEGREGATION,
KNOWN AS THE APRIL 7, 1970, PLAN, WHICH HAD BEEN ADOPTED BY THE DETROIT
BOARD OF EDUCATION TO BE EFFECTIVE BEGINNING WITH THE FALL 1970
SEMESTER.  THE COMPLAINT ALSO ALLEGED THAT THE DETROIT PUBLIC SCHOOL
SYSTEM WAS AND IS SEGREGATED ON THE BASIS OF RACE AS A RESULT OF THE
OFFICIAL POLICIES AND ACTIONS OF THE DEFENDANTS AND THEIR PREDECESSORS
IN OFFICE, AND CALLED FOR THE IMPLEMENTATION OF A PLAN THAT WOULD
ELIMINATE "THE RACIAL IDENTITY OF EVERY SCHOOL IN THE (DETROIT) SYSTEM
AND . . . MAINTAIN NOW AND HEREAFTER A UNITARY, NONRACIAL SCHOOL
SYSTEM." 

INITIALLY THE MATTER WAS TRIED ON RESPONDENTS' MOTION FOR A
PRELIMINARY INJUNCTION TO RESTRAIN THE ENFORCEMENT OF ACT 48 SO AS TO
PERMIT THE APRIL 7 PLAN TO BE IMPLEMENTED.  ON THAT ISSUE, THE DISTRICT
COURT RULED THAT RESPONDENTS WERE NOT ENTITLED TO A PRELIMINARY
INJUNCTION SINCE AT THAT STAGE THERE WAS NO PROOF THAT DETROIT HAD A
DUAL SEGREGATED SCHOOL SYSTEM.  ON APPEAL, THE COURT OF APPEALS FOUND
THAT THE "IMPLEMENTATION OF THE APRIL 7 PLAN WAS (UNCONSTITUTIONALLY)
THWARTED BY STATE ACTION IN THE FORM OF THE ACT OF THE LEGISLATURE OF
MICHIGAN," 433 F.2D 897, 902 (CA6 1970), AND THAT SUCH ACTION COULD NOT
BE INTERPOSED TO DELAY, OBSTRUCT, OR NULLIFY STEPS LAWFULLY TAKEN FOR
THE PURPOSE OF PROTECTING RIGHTS GUARANTEED BY THE FOURTEENTH
AMENDMENT.  THE CASE WAS REMENDED TO THE DISTRICT COURT FOR AN
EXPEDITED TRIAL ON THE MERITS. 

ON REMAND, THE RESPONDENTS MOVED FOR IMMEDIATE IMPLEMENTATION OF THE
APRIL 7 PLAN IN ORDER TO REMEDY THE DEPRIVATION OF THE CLAIMED
CONSTITUTIONAL RIGHTS.  IN RESPONSE, THE SCHOOL BOARD SUGGESTED TWO
OTHER PLANS, ALONG WITH THE APRIL 7 PLAN, AND URGED THAT TOP PRIORITY
BE ASSIGNED TO THE SO-CALLED "MAGNET PLAN"  WHICH WAS "DESIGNED TO
ATTRACT CHILDREN TO A SCHOOL BECAUSE OF ITS SUPERIOR CURRICULUM."  THE
DISTRICT COURT APPROVED THE BOARD'S MAGNET PLAN, AND RESPONDENTS AGAIN
APPEALED TO THE COURT OF APPEALS, MOVING FOR SUMMARY REVERSAL.  THE
COURT OF APPEALS REFUSED TO PASS ON THE MERITS OF THE MAGNET PLAN AND
RULED THAT THE DISTRICT COURT HAD NOT ABUSED ITS DISCRETION IN REFUSING
TO ADOPT THE APRIL 7 PLAN WITHOUT AN EVIDENTIARY HEARING.  THE CASE WAS
AGAIN REMENDED WITH INSTRUCTIONS TO PROCEED IMMEDIATELY TO A TRIAL ON
THE MERITS OF RESPONDENTS' SUBSTANTIVE ALLEGATIONS CONCERNING THE
DETROIT SCHOOL SYSTEM.  438 F.2D 945 (CA6 1971). 

THE TRIAL OF THE ISSUE OF SEGREGATION IN THE DETROIT SCHOOL SYSTEM
BEGAN ON APRIL 6, 1971, AND CONTINUED THROUGH JULY 22, 1971, CONSUMING
SOME 41 TRIAL DAYS.  ON SEPTEMBER 27, 1971, THE DISTRICT COURT ISSUED
ITS FINDINGS AND CONCLUSIONS ON THE ISSUE OF SEGREGATION, FINDING THAT
"GOVERNMENTAL ACTIONS AND INACTION AT ALL LEVELS, FEDERAL, STATE AND
LOCAL, HAVE COMBINED, WITH THOSE OF PRIVATE ORGANIZATIONS, SUCH AS
LOANING INSTITUTIONS AND REAL ESTATE ASSOCIATIONS AND BROKERAGE FIRMS,
TO ESTABLISH AND TO MAINTAIN THE PATTERN OF RESIDENTIAL SEGREGATION
THROUGHOUT THE DETROIT METROPOLITAN AREA."  338 F.SUPP.  582, 587 (ED
MICH. 1971).  WHILE STILL ADDRESSING A DETROIT-ONLY VIOLATION, THE
DISTRICT COURT REASONED: 

"WHILE IT WOULD BE UNFAIR TO CHARGE THE PRESENT DEFENDANTS WITH WHAT
OTHER GOVERNMENTAL OFFICERS OR AGENCIES HAVE DONE IT CAN BE SAID THAT
THE ACTIONS OR THE FAILURE TO ACT BY THE RESPONSIBLE SCHOOL
AUTHORITIES, BOTH CITY AND STATE, WERE LINKED TO THAT OF THESE OTHER
GOVERNMENTAL UNITS.  WHEN WE SPEAK OF GOVERNMENTAL ACTION WE SHOULD NOT
VIEW THE DIFFERENT AGENCIES AS A COLLECTION OF UNRELATED UNITS. 
PERHAPS THE MOST THAT CAN BE SAID IS THAT ALL OF THEM, INCLUDING THE
SCHOOL AUTHORITIES, ARE, IN PART, RESPONSIBLE FOR THE SEGREGATED
CONDITION WHICH EXISTS.  AND WE NOTE THAT JUST AS THERE IS AN
INTERACTION BETWEEN RESIDENTIAL PATTERNS AND THE RACIAL COMPOSITION OF
THE SCHOOLS, SO THERE IS A CORRESPONDING EFFECT ON THE RESIDENTIAL
PATTERN BY THE RACIAL COMPOSITION OF THE SCHOOLS."  IBID. 

THE DISTRICT COURT FOUND THAT THE DETROIT BOARD OF EDUCATION CREATED
AND MAINTAINED OPTIONAL ATTENDANCE ZONES /3/  WITHIN DETROIT
NEIGHBORHOODS UNDERGOING RACIAL TRANSITION AND BETWEEN HIGH SCHOOL
ATTENDANCE AREAS OF OPPOSITE PREDOMINANT RACIAL COMPOSITIONS.  THESE
ZONES, THE COURT FOUND, HAD THE "NATURAL, PROBABLE, FORESEEABLE AND
ACTUAL EFFECT" OF ALLOWING WHITE PUPILS TO ESCAPE IDENTIFIABLY NEGRO
SCHOOLS.  IBID.  SIMILARLY, THE DISTRICT COURT FOUND THAT DETROIT
SCHOOL ATTENDANCE ZONES HAD BEEN DRAWN ALONG NORTH-SOUTH BOUNDARY LINES
DESPITE THE DETROIT BOARD'S AWARENESS THAT DRAWING BOUNDARY LINES IN AN
EAST-WEST DIRECTION WOULD RESULT IN SIGNIFICANTLY GREATER
DESEGREGATION.  AGAIN, THE DISTRICT COURT CONCLUDED, THE NATURAL AND
ACTUAL EFFECT OF THESE ACTS WAS THE CREATION AND PERPETUATION OF SCHOOL
SEGREGATION WITHIN DETROIT. 

THE DISTRICT COURT FOUND THAT IN THE OPERATION OF ITS SCHOOL
TRANSPORTATION PROGRAM, WHICH WAS DESIGNED TO RELIEVE OVERCROWDING, THE
DETROIT BOARD HAD ADMITTEDLY BUSED NEGRO DETROIT PUPILS TO
PREDOMINANTLY NEGRO SCHOOLS WITH AVAILABLE SPACE.  /4/  THIS PRACTICE
WAS FOUND TO HAVE CONTINUED IN RECENT YEARS DESPITE THE DETROIT BOARD'S
AVOWED POLICY, ADOPTED IN 1967, OF UTILIZING TRANSPORTATION TO INCREASE
DESEGREGATION: 

"WITH ONE EXCEPTION (NECESSITATED BY THE BURNING OF A WHITE

  SCHOOL), DEFENDANT BOARD HAS NEVER BUSED WHITE CHILDREN TO

  PREDOMINANTLY BLACK SCHOOLS.  THE BOARD HAS NOT BUSED WHITE

  PUPILS TO BLACK SCHOOLS DESPITE THE ENORMOUS AMOUNT OF SPACE

  AVAILABLE IN INNER-CITY SCHOOLS.  THERE WERE 22,961 VACANT SEATS

  IN SCHOOLS 90% OR MORE BLACK."  ID., AT 588. 

WITH RESPECT TO THE DETROIT BOARD OF EDUCATION'S PRACTICES IN SCHOOL
CONSTRUCTION THE DISTRICT COURT FOUND THAT DETROIT SCHOOL CONSTRUCTION
GENERALLY TENDED TO HAVE A SEGREGATIVE EFFECT WITH THE GREAT MAJORITY
OF SCHOOLS BEING BUILT IN EITHER OVERWHELMINGLY ALL-NEGRO OR ALL-WHITE
NEIGHBORHOODS SO THAT THE NEW SCHOOLS OPENED AS PREDOMINANTLY ONE-RACE
SCHOOLS.  THUS, OF THE 14 SCHOOLS WHICH OPENED FOR USE IN 1970 - 1971,
11 OPENED OVER 90% NEGRO AND ONE OPENED LESS THAN 10% NEGRO. 

THE DISTRICT COURT ALSO FOUND THAT THE STATE OF MICHIGAN HAD COMMITTED
SEVERAL CONSTITUTIONAL VIOLATIONS WITH RESPECT TO THE EXERCISE OF ITS
GENERAL RESPONSIBILITY FOR, AND SUPERVISION OF, PUBLIC EDUCATION.  /5/
THE STATE, FOR EXAMPLE, WAS FOUND TO HAVE FAILED, UNTIL THE 1971
SESSION OF THE MICHIGAN LEGISLATURE, TO PROVIDE AUTHORIZATION OR FUNDS
FOR THE TRANSPORTATION OF PUPILS WITHIN DETROIT REGARDLESS OF THEIR
POVERTY OR DISTANCE FROM THE SCHOOL TO WHICH THEY WERE ASSIGNED; DURING
THIS SAME PERIOD THE STATE PROVIDED MANY NEIGHBORING, MOSTLY WHITE,
SUBURBAN DISTRICTS THE FULL RANGE OF STATE-SUPPORTED TRANSPORTATION. 

THE DISTRICT COURT FOUND THAT THE STATE, THROUGH ACT 48, ACTED TO
"IMPEDE, DELAY AND MINIMIZE RACIAL INTEGRATION IN DETROIT SCHOOLS." 
THE FIRST SENTENCE OF 12 OF ACT 48 WAS DESIGNED TO DELAY THE APRIL 7,
1970, DESEGREGATION PLAN ORIGINALLY ADOPTED BY THE DETROIT BOARD.  THE
REMAINDER OF 12 SOUGHT TO PRESCRIBE FOR EACH SCHOOL IN THE EIGHT
DISTRICTS CRITERIA OF "FREE CHOICE" AND "NEIGHBORHOOD SCHOOLS," WHICH,
THE DISTRICT COURT FOUND, "HAD AS THEIR PURPOSE AND EFFECT THE
MAINTENANCE OF SEGREGATION."  338 F.SUPP.,AT 589.  /6/ 

THE DISTRICT COURT ALSO HELD THAT THE ACTS OF THE DETROIT BOARD OF
EDUCATION, AS A SUBORDINATE ENTITY OF THE STATE, WERE ATTRIBUTABLE TO
THE STATE OF MICHIGAN, THUS CREATING A VICARIOUS LIABILITY ON THE PART
OF THE STATE.  UNDER MICHIGAN LAW, MICH. COMP. LAWS 388.851 (1970), FOR
EXAMPLE, SCHOOL BUILDING CONSTRUCTION PLANS HAD TO BE APPROVED BY THE
STATE BOARD OF EDUCATION, AND PRIOR TO 1962, THE STATE BOARD HAD
SPECIFIC STATUTORY AUTHORITY TO SUPERVISE SCHOOLSITE SELECTION.  THE
PROOFS CONCERNING THE EFFECT OF DETROIT'S SCHOOL CONSTRUCTION PROGRAM
WERE, THEREFORE, FOUND TO BE LARGELY APPLICABLE TO SHOW STATE
RESPONSIBILITY FOR THE SEGREGATIVE RESULTS.  /7/ 

TURNING TO THE QUESTION OF AN APPROPRIATE REMEDY FOR THESE SEVERAL
CONSTITUTIONAL VIOLATIONS, THE DISTRICT COURT DEFERRED A PENDING MOTION
/8/ BY INTERVENING PARENT DEFENDANTS TO JOIN AS ADDITIONAL PARTIES
DEFENDANT THE 85 OUTLYING SCHOOL DISTRICTS IN THE THREE-COUNTY DETROIT
METROPOLITAN AREA ON THE GROUND THAT EFFECTIVE RELIEF COULD NOT BE
ACHIEVED WITHOUT THEIR PRESENCE.  /9/ 

THE DISTRICT COURT CONCLUDED THAT THIS MOTION TO JOIN WAS
"PREMATURE," SINCE IT "HAS TO DO WITH RELIEF" AND NOT REASONABLY
SPECIFIC DESEGREGATION PLAN WAS BEFORE THE COURT.  338 F.SUPP.,AT 595. 
ACCORDINGLY, THE DISTRICT COURT PROCEEDED TO ORDER THE DETROIT BOARD OF
EDUCATION TO SUBMIT DESEGREGATION PLANS LIMITED TO THE SEGREGATION
PROBLEMS FOUND TO BE EXISTING WITHIN THE CITY OF DETROIT.  AT THE SAME
TIME, HOWEVER, THE STATE DEFENDANTS WERE DIRECTED TO SUBMIT
DESEGREGATION PLANS ENCOMPASSING THE THREE-COUNTY METROPOLITAN AREA
/10/  DESPITE THE FACT THAT THE 85 OUTLYING SCHOOL DISTRICTS OF THESE
THREE COUNTIES WERE NOT PARTIES TO THE ACTION AND DESPITE THE FACT THAT
THERE HAD BEEN NO CLAIM THAT THESE OUTLYING DISTRICTS HAD COMMITTED
CONSTITUTIONAL VIOLATIONS.  /11/  AN EFFORT TO APPEAL THESE ORDERS TO
THE COURT OF APPEALS WAS DISMISSED ON THE GROUND THAT THE ORDERS WERE
NOT APPEALABLE.  468 F.2D 902 (CA6), CERT. DENIED, 409 U.S. 844
(1972).  THE SEQUENCE OF THE ENSUING ACTIONS AND ORDERS OF THE DISTRICT
COURT ARE SIGNIFICANT FACTORS AND WILL THEREFORE BE CATALOGUED IN SOME
DETAIL. 

FOLLOWING THE DISTRICT COURT'S ABRUPT ANNOUNCEMENT THAT IT PLANNED
TO CONSIDER THE IMPLEMENTATION OF A MULTIDISTRICT, METROPOLITAN AREA
REMEDY TO THE SEGREGATION PROBLEMS IDENTIFIED WITHIN THE CITY OF
DETROIT, THE DISTRICT COURT WAS AGAIN REQUESTED TO GRANT THE OUTLYING
SCHOOL DISTRICTS INTERVENTION AS OF RIGHT ON THE GROUND THAT THE
DISTRICT COURT'S NEW REQUEST FOR MULTIDISTRICT PLANS "MAY, AS A
PRACTICAL MATTER, IMPAIR OR IMPEDE (THE INTERVENORS') ABILITY TO
PROTECT" THE WELFARE OF THEIR STUDENTS.  THE DISTRICT COURT TOOK THE
MOTIONS TO INTERVENE UNDER ADVISEMENT PENDING SUBMISSION OF THE
REQUESTED DESEGREGATION PLANS BY DETROIT AND THE STATE OFFICIALS.  ON
MARCH 7, 1972, THE DISTRICT COURT NOTIFIED ALL PARTIES AND THE
PETITIONER SCHOOL DISTRICTS SEEKING INTERVENTION, THAT MARCH 14, 1972,
WAS THE DEADLINE FOR SUBMISSION OF RECOMMENDATIONS FOR CONDITIONS OF
INTERVENTION AND THE DATE OF THE COMMENCEMENT OF HEARINGS ON DETROIT
ONLY DESEGREGATION PLANS.  ON THE SECOND DAY OF THE SCHEDULED HEARINGS,
MARCH 15, 1972, THE DISTRICT COURT GRANTED THE MOTIONS OF THE
INTERVENOR SCHOOL DISTRICTS /12/  SUBJECT, INTER ALIA, TO THE FOLLOWING
CONDITIONS: 

     "1.  NO INTERVENOR WILL BE PERMITTED TO ASSERT ANY CLAIM OR

  DEFENSE PREVIOUSLY ADJUDICATED BY THE COURT. 

      "2.  NO INTERVENOR SHALL REOPEN ANY QUESTION OR ISSUE WHICH
HAS

  PREVIOUSLY BEEN DECIDED BY THE COURT. 

   . . . 

     "7.  NEW INTERVENORS ARE GRANTED INTERVENTION FOR TWO
PRINCIPAL

  PURPOSES:  (A) TO ADVISE THE COURT, BY BRIEF, OF THE LEGAL

  PROPRIETY OR IMPROPRIETY OF CONSIDERING A METROPOLITAN PLAN; (B)

  TO REVIEW ANY PLAN OR PLANS FOR THE DESEGREGATION OF THE

  SO-CALLED LARGER DETROIT METROPOLITAN AREA, AND SUBMITTING

  OBJECTIONS, MODIFICATIONS OR ALTERNATIVES TO IT OR THEM, AND IN

  ACCORDANCE WITH THE REQUIREMENTS OF THE UNITED STATES

  CONSTITUTION AND THE PRIOR ORDERS OF THIS COURT."  1 JOINT

  APPENDIX 206 (HEREINAFTER APP.). 

UPON GRANTING THE MOTION TO INTERVENE, ON MARCH 15, 1972, THE
DISTRICT COURT ADVISED THE PETITIONING INTERVENORS THAT THE COURT HAD
PREVIOUSLY SET MARCH 22, 1972, AS THE DATE FOR THE FILING OF BRIEFS ON
THE LEGAL PROPRIETY OF A "METROPOLITAN" PLAN OF DESEGREGATION AND,
ACCORDINGLY, THAT THE INTERVENING SCHOOL DISTRICTS WOULD HAVE ONE WEEK
TO MUSTER THEIR LEGAL ARGUMENTS ON THE ISSUE.  /13/  THEREAFTER, AND
FOLLOWING THE COMPLETION OF HEARINGS ON THE DETROIT-ONLY DESEGREGATION
PLANS, THE DISTRICT COURT ISSUED THE FOUR RULINGS THAT WERE THE
PRINCIPAL ISSUES IN THE COURT OF APPEALS. 

(A) ON MARCH 24, 1972, TWO DAYS AFTER THE INTERVENORS' BRIEFS WERE
DUE, THE DISTRICT COURT ISSUED ITS RULING ON THE QUESTION OF WHETHER IT
COULD "CONSIDER RELIEF IN THE FORM OF A METROPOLITAN PLAN, ENCOMPASSING
NOT ONLY THE CITY OF DETROIT, BUT THE LARGER DETROIT METROPOLITAN
AREA."  IT REJECTED THE STATE DEFENDANTS' ARGUMENTS THAT NO STATE
ACTION CAUSED THE SEGREGATION OF THE DETROIT SCHOOLS, AND THE
INTERVENING SUBURBAN DISTRICTS' CONTENTION THAT INTERDISTRICT RELIEF
WAS INAPPROPRIATE UNLESS THE SUBURBAN DISTRICTS THEMSELVES HAD
COMMITTED VIOLATIONS.  THE COURT CONCLUDED: 

"(IT IS PROPER FOR THE COURT TO CONSIDER METROPOLITAN PLANS DIRECTED
TOWARD THE DESEGREGATION OF THE DETROIT PUBLIC SCHOOLS AS AN
ALTERNATIVE TO THE PRESENT INTRA-CITY DESEGREGATION PLANS BEFORE IT
AND, IN THE EVENT THAT THE COURT FINDS SUCH INTRA-CITY PLANS INADEQUATE
TO DESEGREGATE SUCH SCHOOLS, THE COURT IS OF THE OPINION THAT IT IS
REQUIRED TO CONSIDER A METROPOLITAN REMEDY FOR DESEGREGATION."  PET.
APP. 51A. 

(B) ON MARCH 28, 1972, THE DISTRICT COURT ISSUED ITS FINDINGS AND
CONCLUSIONS ON THE THREE DETROIT-ONLY PLANS SUBMITTED BY THE CITY BOARD
AND THE RESPONDENTS.  IT FOUND THAT THE BEST OF THE THREE PLANS "WOULD
MAKE THE DETROIT SCHOOL SYSTEM MORE IDENTIFIABLY BLACK . . . THEREBY
INCREASING THE FLIGHT OF WHITES FROM THE CITY AND THE SYSTEM."  ID., AT
55A.  FROM THIS THE COURT CONCLUDED THAT THE PLAN "WOULD NOT ACCOMPLISH
DESEGREGATION . . . WITHIN THE CORPORATE GEOGRAPHICAL LIMITS OF THE
CITY."  ID., AT 56A.  ACCORDINGLY, THE DISTRICT COURT HELD THAT IT
"MUST LOOK BEYOND THE LIMITS OF THE DETROIT SCHOOL DISTRICT FOR A
SOLUTION TO THE PROBLEM," AND THAT "(SCHOOL DISTRICT LINES ARE SIMPLY
MATTERS OF POLITICAL CONVENIENCE AND MAY NOT BE USED TO DENY
CONSTITUTIONAL RIGHTS."  ID., AT 57A. 

(C) DURING THE PERIOD FROM MARCH 28 TO APRIL 14, 1972, THE DISTRICT
COURT CONDUCTED HEARINGS ON A METROPOLITAN PLAN.  COUNSEL FOR THE
PETITIONING INTERVENORS WAS ALLOWED TO PARTICIPATE IN THESE HEARINGS,
BUT HE WAS ORDERED TO CONFINE HIS ARGUMENT TO "THE SIZE AND EXPANSE OF
THE METROPOLITAN PLAN"  WITHOUT ADDRESSING THE INTERVENORS' OPPOSITION
TO SUCH A REMEDY OR THE CLAIM THAT A FINDING OF A CONSTITUTIONAL
VIOLATION BY THE INTERVENOR DISTRICTS WAS AN ESSENTIAL PREDICATE TO ANY
REMEDY INVOLVING THEM.  THEREAFTER, ON JUNE 14, 1972, THE DISTRICT
COURT ISSUED ITS RULING ON THE "DESEGREGATION AREA" AND RELATED
FINDINGS AND CONCLUSIONS.  THE COURT ACKNOWLEDGED AT THE OUTSET THAT IT
HAD "TAKEN NO PROOFS WITH RESPECT TO THE ESTABLISHMENT OF THE
BOUNDARIES OF THE 86 PUBLIC SCHOOL DISTRICTS IN THE COUNTIES (IN THE
DETROIT AREA), NOR ON THE ISSUE OF WHETHER, WITH THE EXCLUSION OF THE
CITY OF DETROIT SCHOOL DISTRICT, SUCH SCHOOL DISTRICTS HAVE COMMITTED
ACTS OF DE JURE SEGREGATION."  NEVERTHELESS, THE COURT DESIGNATED 53 OF
THE 85 SUBURBAN SCHOOL DISTRICTS PLUS DETROIT AS THE "DESEGREGATION
AREA" AND APPOINTED A PANEL TO PREPARE AND SUBMIT "AN EFFECTIVE
DESEGREGATION PLAN" FOR THE DETROIT SCHOOLS THAT WOULD ENCOMPASS THE
ENTIRE DESEGREGATION AREA.  /14/  THE PLAN WAS TO BE BASED ON 15
CLUSTERS, EACH CONTAINING PART OF THE DETROIT SYSTEM AND TWO OR MORE
SUBURBAN DISTRICTS, AND WAS TO "ACHIEVE THE GREATEST DEGREE OF ACTUAL
DESEGREGATION TO THE END THAT, UPON IMPLEMENTATION, NO SCHOOL, GRADE OR
CLASSROOM (WOULD BE) SUBSTANTIALLY DISPROPORTIONATE TO THE OVERALL
PUPIL RACIAL COMPOSITION."  345 F.SUPP.  914, 918 (ED MICH. 1972). 

(D) ON JULY 11, 1972, AND IN ACCORDANCE WITH A RECOMENDATION BY THE
COURT-APPOINTED DESEGREGATION PANEL, THE DISTRICT COURT ORDERED THE
DETROIT BOARD OF EDUCATION TO PURCHASE OR LEASE "AT LEAST" 295 SCHOOL
BUSES FOR THE PURPOSE OF PROVIDING TRANSPORTATION UNDER AN INTERIM PLAN
TO BE DEVELOPED FOR THE 1972 - 1972 SCHOOL YEAR.  THE COSTS OF THIS
ACQUISITION WERE TO BE BORNE BY THE STATE DEFENDANTS.  PET. APP. 106A -
107A. 

ON JUNE 12, 1973, A DIVIDED COURT OF APPEALS, SITTING EN BANC,
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER
PROCEEDINGS.  484 F.2D 215 (CA6).  /15/  THE COURT OF APPEALS HELD,
FIRST, THAT THE RECORD SUPPORTED THE DISTRICT COURT'S FINDINGS AND
CONCLUSIONS ON THE CONSTITUTIONAL VIOLATIONS COMMITTED BY THE DETROIT
BOARD, ID., AT 221 - 238, AND BY THE STATE DEFENDANTS, ID., AT 239 -
241.  /16/  IT STATED THAT THE ACTS OF RACIAL DISCRIMINATION SHOWN IN
THE RECORD ARE "CAUSALLY RELATED TO THE SUBSTANTIAL AMOUNT OF
SEGREGATION FOUND IN THE DETROIT SCHOOL SYSTEM," ID., AT 241, AND THAT
"THE DISTRICT COURT WAS THEREFORE AUTHORIZED AND REQUIRED TO TAKE
EFFECTIVE MEASURES TO DESEGREGATE THE DETROIT PUBLIC SCHOOL SYSTEM." 
ID., AT 242. 

THE COURT OF APPEALS ALSO AGREED WITH THE DISTRICT COURT THAT "ANY
LESS COMPREHENSIVE A SOLUTION THAN A METROPOLITAN AREA PLAN WOULD
RESULT IN AN ALL BLACK SCHOOL SYSTEM IMMEDIATELY SURROUNDED BY
PRACTICALLY ALL WHITE SUBURBAN SCHOOL SYSTEMS, WITH AN OVERWHELMINGLY
WHITE MAJORITY POPULATION IN THE TOTAL METROPOLITAN AREA."  ID., AT
245.  THE COURT WENT ON TO STATE THAT IT COULD "NOT SEE HOW SUCH
SEGREGATION CAN BE ANY LESS HARMFUL TO THE MINORITY STUDENTS THAN IF
THE SAME RESULT WERE ACCOMPLISHED WITHIN ONE SCHOOL DISTRICT."  IBID. 

ACCORDINGLY, THE COURT OF APPEALS CONCLUDED THAT "THE ONLY FEASIBLE
DESEGREGATION PLAN INVOLVES THE CROSSING OF THE BOUNDARY LINES BETWEEN
THE DETROIT SCHOOL DISTRICT AND ADJACENT OR NEARBY SCHOOL DISTRICTS FOR
THE LIMITED PURPOSE OF PROVIDING AN EFFECTIVE DESEGREGATION PLAN." 
ID., AT 249.  IT REASONED THAT SUCH A PLAN WOULD BE APPROPRIATE BECAUSE
OF THE STATE'S VIOLATIONS, AND COULD BE IMPLEMENTED BECAUSE OF THE
STATE'S AUTHORITY TO CONTROL LOCAL SCHOOL DISTRICTS.  WITHOUT FURTHER
ELABORATION, AND WITHOUT ANY DISCUSSION OF THE CLAIMS THAT NO
CONSTITUTIONAL VIOLATION BY THE OUTLYING DISTRICTS HAD BEEN SHOWN AND
THAT NO EVIDENCE ON THAT POINT HAD BEEN ALLOWED, THE COURT OF APPEALS
HELD: 

"(THE STATE HAS COMMITTED DE JURE ACTS OF SEGREGATION AND . . . THE
STATE CONTROLS THE INSTRUMENTALITIES WHOSE ACTION IS NECESSARY TO
REMEDY THE HARMFUL EFFECTS OF THE STATE ACTS."  IBID. AN INTERDISTRICT
REMEDY WAS THUS HELD TO BE "WITHIN THE EQUITY POWERS OF THE DISTRICT
COURT."  ID., AT 250.  /17/ 

THE COURT OF APPEALS EXPRESSED NO VIEWS ON THE PROPRIETY OF THE
DISTRICT COURT'S COMPOSITION OF THE METROPOLITAN "DESEGREGATION AREA." 
IT HELD THAT ALL SUBURBAN SCHOOL DISTRICTS THAT MIGHT BE AFFECTED BY
ANY METROPOLITANWIDE REMEDY SHOULD, UNDER FED.  RULE CIV. PROC. 19, BE
MADE PARTIES TO THE CASE ON REMAND AND BE GIVEN AN OPPORTUNITY TO BE
HEARD WITH RESPECT TO THE SCOPE AND IMPLEMENTATION OF SUCH A REMEDY. 
484 F.2D,AT 251 - 252.  UNDER THE TERMS OF THE REMAND, HOWEVER, THE
DISTRICT COURT WAS NOT "REQUIRED" TO RECEIVE FURTHER EVIDENCE ON THE
ISSUE OF SEGREGATION IN THE DETROIT SCHOOLS OR ON THE PROPRIETY OF A
DETROIT-ONLY REMEDY, OR ON THE QUESTION OF WHETHER THE AFFECTED
DISTRICTS HAD COMMITTED ANY VIOLATION OF THE CONSTITUTIONAL RIGHTS OF
DETROIT PUPILS OR OTHERS.  ID., AT 252.  FINALLY, THE COURT OF APPEALS
VACATED THE DISTRICT COURT'S ORDER DIRECTING THE ACQUISITION OF SCHOOL
BUSES, SUBJECT TO THE RIGHT OF THE DISTRICT COURT TO CONSIDER
REIMPOSING THE ORDER "AT THE APPROPRIATE TIME."  IBID.

        II 

EVER SINCE BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954),
JUDICIAL CONSIDERATION OF SCHOOL DESEGREGATION CASES HAS BEGUN WITH THE
STANDARD: 

"(IN THE FIELD OF PUBLIC EDUCATION THE DOCTRINE OF 'SEPARATE BUT
EQUAL' HAS NO PLACE.  SEPARATE EDUCATIONAL FACILITIES ARE INHERENTLY
UNEQUAL."  ID., AT 495.  THIS HAS BEEN REAFFIRMED TIME AND AGAIN AS THE
MEANING OF THE CONSTITUTION AND THE CONTROLLING RULE OF LAW. 

THE TARGET OF THE BROWN HOLDING WAS CLEAR AND FORTHRIGHT:  THE
ELIMINATION OF STATE-MANDATED OR DELIBERATELY MAINTAINED DUAL SCHOOL
SYSTEMS WITH CERTAIN SCHOOLS FOR NEGRO PUPILS AND OTHERS FOR WHITE
PUPILS.  THIS DUALITY AND RACIAL SEGREGATION WERE HELD TO VIOLATE THE
CONSTITUTION IN THE CASES SUBSEQUENT TO 1954, INCLUDING PARTICULARLY
GREEN V. COUNTY SCHOOL BOARD OF NEW KENT COUNTY 391 U.S. 430 (1968);
RANEY V. BOARD OF EDUCATION, 391 U.S. 443 (1968); MONROE V. BOARD OF
COMM'RS, 391 U.S. 450 (1968); SWANN V. CHARLOTT-MECKLENBURG BOARD OF
EDUCATION, 402 U.S. 1 (1971); WRIGHT V. COUNCIL OF THE CITY OF EMPORIA,
407 U.S. 451 (1972); UNITED STATES V. SCOTLAND NECK BOARD OF EDUCATION,
407 U.S. 484 (1972). 

THE SWANN CASE, OF COURSE, DEALT 

"WITH THE PROBLEM OF DEFINING IN MORE PRECISE TERMS THAN HERETOFORE
THE SCOPE OF THE DUTY OF SCHOOL AUTHORITIES AND DISTRICT COURTS IN
IMPLEMENTING BROWN I AND THE MANDATE TO ELIMINATE DUAL SYSTEMS AND
ESTABLISH UNITARY SYSTEMS AT ONCE."  402 U.S.,AT 6.  IN BROWN V. BOARD
OF EDUCATION, 349 U.S. 294 (1955) (BROWN II), THE COURT'S FIRST
ENCOUNTER WITH THE PROBLEM OF REMEDIES IN SCHOOL DESEGREGATION CASES,
THE COURT NOTED: 

"IN FASHIONING AND EFFECTUATING THE DECREES, THE COURTS WILL BE

  GUIDED BY EQUITABLE PRINCIPLES.  TRADITIONALLY, EQUITY HAS BEEN

  CHARACTERIZED BY A PRACTICAL FLEXIBILITY IN SHAPING ITS REMEDIES

  AND BY A FACILITY FOR ADJUSTING AND RECONCILING PUBLIC AND

  PRIVATE NEEDS."  ID., AT 300 (FOOTNOTES OMITTED). 

IN FURTHER REFINING THE REMEDIAL PROCESS, SWANN HELD, THE TASK IS TO
CORRECT, BY A BALANCING OF THE INDIVIDUAL AND COLLECTIVE INTERESTS,
"THE CONDITION THAT OFFENDS THE CONSTITUTION."  A FEDERAL REMEDIAL
POWER MAY BE EXERCISED "ONLY ON THE BASIS OF A CONSTITUTIONAL
VIOLATION: AND, "(AS WITH ANY EQUITY CASE, THE NATURE OF THE VIOLATION
DETERMINES THE SCOPE OF THE REMEDY."  402 U.S.,AT 16. 

PROCEEDING FROM THESE BASIC PRINCIPLES, WE FIRST NOTE THAT IN THE
DISTRICT COURT THE COMPLAINANTS SOUGHT A REMEDY AIMED AT THE CONDITION
ALLEGED TO OFFEND THE CONSTITUTION--THE SEGREGATION WITHIN THE DETROIT
CITY SCHOOL DISTRICT.  /18/  THE COURT ACTED ON THIS THEORY OF THE CASE
AND IN ITS INITIAL RULING ON THE "DESEGREGATION AREA" STATED: 

     "THE TASK BEFORE THIS COURT, THEREFORE, IS NOW, AND . . . HAS

  ALWAYS BEEN, HOW TO DESEGREGATE THE DETROIT

THEREAFTER, HOWEVER, THE DISTRICT COURT ABRUPTLY REJECTED THE PROPOSED
DETROIT-ONLY PLANS ON THE GROUND THAT "WHILE (THEY) WOULD PROVIDE A
RACIAL MIX MORE IN KEEPING WITH THE BLACK-WHITE PROPORTIONS OF THE
STUDENT POPULATION (THEY) WOULD ACCENTUATE THE RACIAL IDENTIFIABILITY
OF THE (DETROIT) DISTRICT AS A BLACK SCHOOL SYSTEM, AND WOULD NOT
ACCOMPLISH DESEGREGATION."  PET. APP. 56A.  "(THE RACIAL COMPOSITION OF
THE STUDENT BODY IS SUCH," SAID THE COURT, "THAT THE PLAN'S
IMPLEMENTATION WOULD CLEARLY MAKE THE ENTIRE DETROIT PUBLIC SCHOOL
SYSTEM RACIALLY IDENTIFIABLE" (ID., AT 54A), "LEAVING) MANY OF ITS
SCHOOLS 75 TO 90 PER CENT BLACK."  ID., AT 55A.  CONSEQUENTLY, THE
COURT REASONED, IT WAS IMPERATIVE TO "LOOK BEYOND THE LIMITS OF THE
DETROIT SCHOOL DISTRICT FOR A SOLUTION TO THE PROBLEM OF SEGREGATION IN
THE DETROIT PUBLIC SCHOOLS . . ."  SINCE "(SCHOOL DISTRICT LINES ARE
SIMPLY MATTERS OF POLITICAL CONVENIENCE AND MAY NOT BE USED TO DENY
CONSTITUTIONAL RIGHTS."  ID., AT 57A.  ACCORDINGLY, THE DISTRICT COURT
PROCEEDED TO REDEFINE THE RELEVANT AREA TO INCLUDE AREAS OF
PREDOMINANTLY WHITE PUPIL POPULATION IN ORDER TO ENSURE THAT "UPON
IMPLEMENTATION, NO SCHOOL, GRADE OR CLASSROOM (WOULD BE) SUBSTANTIALLY
DISPROPORTIONATE TO THE OVERALL PUPIL RACIAL COMPOSITION" OF THE ENTIRE
METROPOLITAN AREA. 

WHILE SPECIFICALLY ACKNOWLEDGING THAT THE DISTRICT COURT'S FINDINGS
OF A CONDITION OF SEGREGATION WERE LIMITED TO DETROIT, THE COURT OF
APPEALS APPROVED THE USE OF A METROPOLITAN REMEDY LARGELY ON THE
GROUNDS THAT IT IS 

"IMPOSSIBLE TO DECLARE 'CLEARLY ERRONEOUS' THE DISTRICT JUDGE'S
CONCLUSION THAT ANY DETROIT ONLY SEGREGATION PLAN WILL LEAD DIRECTLY TO
A SINGLE SEGREGATED DETROIT SCHOOL DISTRICT OVERWHELMINGLY BLACK IN ALL
OF ITS SCHOOLS, SURROUNDED BY A RING OF SUBURBS AND SUBURBAN SCHOOL
DISTRICTS OVERWHELMINGLY WHITE IN COMPOSITION IN A STATE IN WHICH THE
RACIAL COMPOSITION IS 87 PER CENT WHITE AND 13 PER CENT BLACK."  484
F.2D,AT 249.     VIEWING THE RECORD AS A WHOLE, IT SEEMS CLEAR THAT THE
DISTRICT COURT AND THE COURT OF APPEALS SHIFTED THE PRIMARY FOCUS FROM
A DETROIT REMEDY TO THE METROPOLITAN AREA ONLY BECAUSE OF THEIR
CONCLUSION THAT TOTAL DESEGREGATION OF DETROIT WOULD NOT PRODUCE THE
RACIAL BALANCE WHICH THEY PERCEIVED AS DESIRABLE.  BOTH COURTS
PROCEEDED ON AN ASSUMPTION THAT THE DETROIT SCHOOLS COULD NOT BE TRULY
DESEGREGATED--IN THEIR VIEW OF WHAT CONSTITUTED DESEGREGATION--UNLESS
THE RACIAL COMPOSITION OF THE STUDENT BODY OF EACH SCHOOL SUBSTANTIALLY
REFLECTED THE RACIAL COMPOSITION OF THE POPULATION OF THE METROPOLITAN
AREA AS A WHOLE.  THE METROPOLITAN AREA WAS THEN DEFINED AS DETROIT
PLUS 53 OF THE OUTLYING SCHOOL DISTRICTS.  THAT THIS WAS THE APPROACH
THE DISTRICT COURT EXPRESSLY AND FRANKLY EMPLOYED IS SHOWN BY THE ORDER
WHICH EXPRESSED THE COURT'S VIEW OF THE CONSTITUTIONAL STANDARD: 

     "WITHIN THE LIMITATIONS OF REASONABLE TRAVEL TIME AND DISTANCE
FACTORS, PUPIL REASSIGNMENTS

     SHALL BE EFFECTED WITHIN THE CLUSTERS DESCRIBED IN EXHIBIT
P.M. 12 SO AS TO ACHIEVE THE 

     GREATEST DEGREE OF ACTUAL DESEGREGATION TO THE END THAT, UPON
IMPLEMENTATION, NO SCHOOL, 

     GRADE OR CLASSROOM (WILL BE) SUBSTANTIALLY DISPROPORTIONATE TO
THE OVERALL PUPIL RACIAL 

     COMPOSITION."  345 F.SUPP., AT 918. 

IN SWANN, WHICH AROSE IN THE CONTEXT OF A SINGLE INDEPENDENT SCHOOL
DISTRICT, THE COURT HELD: 

"IF WE WERE TO READ THE HOLDING OF THE DISTRICT COURT TO REQUIRE, AS
A MATTER OF SUBSTANTIVE CONSTITUTIONAL RIGHT, ANY PARTICULAR DEGREE OF
RACIAL BALANCE OR MIXING, THAT APPROACH WOULD BE DISAPPROVED AND WE
WOULD BE OBLIGED TO REVERSE."  402 U.S.,AT 24.  THE CLEAR IMPORT OF
THIS LANGUAGE FROM SWANN IS THAT DESEGREGATION, IN THE SENSE OF
DISMANTLING A DUAL SCHOOL SYSTEM, DOES NOT REQUIRE ANY PARTICULAR
RACIAL BALANCE IN EACH "SCHOOL, GRADE OR CLASSROOM."  /19/  SEE SPENCER
V. KUGLER, 404 U.S. 1027 (1972). 

HERE THE DISTRICT COURT'S APPROACH TO WHAT CONSTITUTED "ACTUAL
DESEGREGATION"  RAISES THE FUNDAMENTAL QUESTION, NOT PRESENTED IN
SWANN, AS TO THE CIRCUMSTANCES IN WHICH A FEDERAL COURT MAY ORDER
DESEGREGATION RELIEF THAT EMBRACES MORE THAN A SINGLE SCHOOL DISTRICT. 
THE COURT'S ANALYTICAL STARTING POINT WAS ITS CONCLUSION THAT SCHOOL
DISTRICT LINES ARE NO MORE THAN ARBITRARY LINES ON A MAP DRAWN "FOR
POLITICAL CONVENIENCE."  BOUNDARY LINES MAY BE BRIDGED WHERE THERE HAS
BEEN A CONSTITUTIONAL VIOLATION CALLING FOR INTERDISTRICT RELIEF, BUT
THE NOTION THAT SCHOOL DISTRICT LINES MAY BE CASUALLY IGNORED OR
TREATED AS A MERE ADMINISTRATIVE CONVENIENCE IS CONTRARY TO THE HISTORY
OF PUBLIC EDUCATION IN OUR COUNTRY.  NO SINGLE TRADITION IN PUBLIC
EDUCATION IS MORE DEEPLY ROOTED THAN LOCAL CONTROL OVER THE OPERATION
OF SCHOOLS; LOCAL AUTONOMY HAS LONG BEEN THOUGHT ESSENTIAL BOTH TO THE
MAINTENANCE OF COMMUNITY CONCERN AND SUPPORT FOR PUBLIC SCHOOLS AND TO
QUALITY OF THE EDUCATIONAL PROCESS.  SEE WRIGHT V. COUNCIL OF THE CITY
OF EMPORIA, 407 U.S.,AT 469.  THUS, IN SAN ANTONIO SCHOOL DISTRICT V.
RODRIGUEZ, 411 U.S. 1, 50 (1973), WE OBSERVED THAT LOCAL CONTROL OVER
THE EDUCATIONAL PROCESS AFFORDS CITIZENS AN OPPORTUNITY TO PARTICIPATE
IN DECISIONMAKING, PERMITS THE STRUCTURING OF SCHOOL PROGRAMS TO FIT
LOCAL NEEDS, AND ENCOURAGES "EXPERIMENTATION, INNOVATION, AND A HEALTHY
COMPETITION FOR EDUCATIONAL EXCELLENCE." 

THE MICHIGAN EDUCATIONAL STRUCTURE INVOLVED IN THIS CASE, IN COMMON
WITH MOST STATES, PROVIDES FOR A LARGE MEASURE OF LOCAL CONTROL /20/
AND A REVIEW OF THE SCOPE AND CHARACTER OF THESE LOCAL POWERS INDICATES
THE EXTENT TO WHICH THE INTERDISTRICT REMEDY APPROVED BY THE TWO COURTS
COULD DISRUPT AND ALTER THE STRUCTURE OF PUBLIC EDUCATION IN MICHIGAN. 
THE METROPOLITAN REMEDY WOULD REQUIRE, IN EFFECT, CONSOLIDATION OF 54
INDEPENDENT SCHOOL DISTRICTS HISTORICALLY ADMINISTERED AS SEPARATE
UNITS INTO A VAST NEW SUPER SCHOOL DISTRICT.  SEE N. 10, SUPRA.
ENTIRELY APART FROM THE LOGISTICAL AND OTHER SERIOUS PROBLEMS ATTENDING
LARGE-SCALE TRANSPORTATION OF STUDENTS, THE CONSOLIDATION WOULD GIVE
RISE TO AN ARRAY OF OTHER PROBLEMS IN FINANCING AND OPERATING THIS NEW
SCHOOL SYSTEM.  SOME OF THE MORE OBVIOUS QUESTIONS WOULD BE:  WHAT
WOULD BE THE STATUS AND AUTHORITY OF THE PRESENT POPULARLY ELECTED
SCHOOL BOARDS?  WOULD THE CHILDREN OF DETROIT BE WITHIN THE
JURISDICTION AND OPERATING CONTROL OF A SCHOOL BOARD ELECTED BY THE
PARENTS AND RESIDENTS OF OTHER DISTRICTS?  WHAT BOARD OR BOARDS WOULD
LEVY TAXES FOR SCHOOL OPERATIONS IN THESE 54 DISTRICTS CONSTITUTING THE
CONSOLIDATED METROPOLITAN AREA?  WHAT PROVISIONS COULD BE MADE FOR
ASSURING SUBSTANTIAL EQUALITY IN TAX LEVIES AMONG THE 54 DISTRICTS, IF
THIS WERE DEEMED REQUISITE?  WHAT PROVISIONS WOULD BE MADE FOR
FINANCING?  WOULD THE VALIDITY OF LONG-TERM BONDS BE JEOPARDIZED UNLESS
APPROVED BY ALL OF THE COMPONENT DISTRICTS AS WELL AS THE STATE?  WHAT
BODY WOULD DETERMINE THAT PORTION OF THE CURRICULA NOW LEFT TO THE
DISCRETION OF LOCAL SCHOOL BOARDS?  WHO WOULD ESTABLISH ATTENDANCE
ZONES, PURCHASE SCHOOL EQUIPMENT, LOCATE AND CONSTRUCT NEW SCHOOLS, AND
INDEED ATTEND TO ALL THE MYRIAD DAY-TO-DAY DECISIONS THAT ARE NECESSARY
TO SCHOOL OPERATIONS AFFECTING POTENTIALLY MORE THAN THREE-QUARTERS OF
A MILLION PUPILS?  SEE N. 10, SUPRA. 

IT MAY BE SUGGESTED THAT ALL OF THESE VITAL OPERATIONAL PROBLEMS ARE
YET TO BE RESOLVED BY THE DISTRICT COURT, AND THAT THIS IS THE PURPOSE
OF THE COURT OF APPEALS' PROPOSED REMAND.  BUT IT IS OBVIOUS FROM THE
SCOPE OF THE INTERDISTRICT REMEDY ITSELF THAT ABSENT A COMPLETE
RESTRUCTURING OF THE LAWS OF MICHIGAN RELATING TO SCHOOL DISTRICTS THE
DISTRICT COURT WILL BECOME FIRST, A DE FACTO "LEGISLATIVE AUTHORITY" TO
RESOLVE THESE COMPLEX QUESTIONS, AND THEN THE "SCHOOL SUPERINTENDENT"
FOR THE ENTIRE AREA.  THIS IS A TASK WHICH FEW, IF ANY, JUDGES ARE
QUALIFIED TO PERFORM AND ONE WHICH WOULD DEPRIVE THE PEOPLE OF CONTROL
OF SCHOOLS THROUGH THEIR ELECTED REPRESENTATIVES. 

OF COURSE, NO STATE LAW IS ABOVE THE CONSTITUTION.  SCHOOL DISTRICT
LINES AND THE PRESENT LAWS WITH RESPECT TO LOCAL CONTROL, ARE NOT
SACROSANCT AND IF THEY CONFLICT WITH THE FOURTEENTH AMENDMENT FEDERAL
COURTS HAVE A DUTY TO PRESCRIBE APPROPRIATE REMEDIES.  SEE, E.G.,
WRIGHT V. COUNCIL OF THE CITY OF EMPORIA, 407 U.S. 451 (1972); UNITED
STATES V. SCOTLAND NECK BOARD OF EDUCATION, 407 U.S. 484 (1972) (STATE
OR LOCAL OFFICIALS PREVENTED FROM CARVING OUT A NEW SCHOOL DISTRICT
FROM AN EXISTING DISTRICT THAT WAS IN PROCESS OF DISMANTLING A DUAL
SCHOOL SYSTEM); CF. HANEY V. COUNTY BOARD OF EDUCATION OF SEVIER
COUNTY, 429 F.2D 364 (CA8 1970) (STATE CONTRIBUTED TO SEPARATION OF
RACES BY DRAWING OF SCHOOL DISTRICT LINES); UNITED STATES V. TEXAS, 321
F.SUPP.  1043 (ED TEX. 1970), AFF'D, 447 F.2D 441 (CA5 1971), CERT.
DENIED SUB NOM.  EDGAR V. UNITED STATES, 404 U.S. 1016 (1972) (ONE OR
MORE SCHOOL DISTRICTS CREATED AND MAINTAINED FOR ONE RACE).  BUT OUR
PRIOR HOLDINGS HAVE BEEN CONFINED TO VIOLATIONS AND REMEDIES WITHIN A
SINGLE SCHOOL DISTRICT.  WE THERE FORE TURN TO ADDRESS, FOR THE FIRST
TIME, THE VALIDITY OF A REMEDY MANDATING CROSS-DISTRICT OR
INTERDISTRICT CONSOLIDATION TO REMEDY A CONDITION OF SEGREGATION FOUND
TO EXIST IN ONLY ONE DISTRICT. 

THE CONTROLLING PRINCIPLE CONSISTENTLY EXPOUNDED IN OUR HOLDINGS IS
THAT THE SCOPE OF THE REMEDY IS DETERMINED BY THE NATURE AND EXTENT OF
THE CONSTITUTIONAL VIOLATION.  SWANN, 402 U.S.,AT 16.  BEFORE THE
BOUNDARIES OF SEPARATE AND AUTONOMOUS SCHOOL DISTRICTS MAY BE SET ASIDE
BY CONSOLIDATING THE SEPARATE UNITS FOR REMEDIAL PURPOSES OR BY
IMPOSING A CROSS-DISTRICT REMEDY, IT MUST FIRST BE SHOWN THAT THERE HAS
BEEN A CONSTITUTIONAL VIOLATION WITHIN ONE DISTRICT THAT PRODUCES A
SIGNIFICANT SEGREGATIVE EFFECT IN ANOTHER DISTRICT.  SPECIFICALLY, IT
MUST BE SHOWN THAT RACIALLY DISCRIMINATORY ACTS OF THE STATE OR LOCAL
SCHOOL DISTRICTS, OR OF A SINGLE SCHOOL DISTRICT HAVE BEEN A
SUBSTANTIAL CAUSE OF INTERDISTRICT SEGREGATION.  THUS AN INTERDISTRICT
REMEDY MIGHT BE IN ORDER WHERE THE RACIALLY DISCRIMINATORY ACTS OF ONE
OR MORE SCHOOL DISTRICTS CAUSED RACIAL SEGREGATION IN AN ADJACENT
DISTRICT, OR WHERE DISTRICT LINES HAVE BEEN DELIBERATELY DRAWN ON THE
BASIS OF RACE.  IN SUCH CIRCUMSTANCES AN INTERDISTRICT REMEDY WOULD BE
APPROPRIATE TO ELIMINATE THE INTERDISTRICT SEGREGATION DIRECTLY CAUSED
BY THE CONSTITUTIONAL VIOLATION.  CONVERSELY, WITHOUT AN INTERDISTRICT
VIOLATION AND INTERDISTRICT EFFECT, THERE IS NO CONSTITUTIONAL WRONG
CALLING FOR AN INTERDISTRICT REMEDY. 

THE RECORD BEFORE US, VOLUMINOUS AS IT IS, CONTAINS EVIDENCE OF DE
JURE SEGREGATED CONDITIONS ONLY IN THE DETROIT SCHOOLS; INDEED, THAT
WAS THE THEORY ON WHICH THE LITIGATION WAS INITIALLY BASED AND ON WHICH
THE DISTRICT COURT TOOK EVIDENCE.  SEE SUPRA, AT 738 - 739.  WITH NO
SHOWING OF SIGNIFICANT VIOLATION BY THE 53 OUTLYING SCHOOL DISTRICTS
AND NO EVIDENCE OF ANY INTERDISTRICT VIOLATION OR EFFECT, THE COURT
WENT BEYOND THE ORIGINAL THEORY OF THE CASE AS FRAMED BY THE PLEADINGS
AND MANDATED A METROPOLITAN AREA REMEDY.  TO APPROVE THE REMEDY ORDERED
BY THE COURT WOULD IMPOSE ON THE OUTLYING DISTRICTS, NOT SHOWN TO HAVE
COMMITTED ANY CONSTITUTIONAL VIOLATION, A WHOLLY IMPERMISSIBLE REMEDY
BASED ON A STANDARD NOT HINTED AT IN BROWN I AND II OR ANY HOLDING OF
THIS COURT. 

IN DISSENT, MR. JUSTICE WHITE AND MR. JUSTICE MARSHALL UNDERTAKE TO
DEMONSTRATE THAT AGENCIES HAVING STATEWIDE AUTHORITY PARTICIPATED IN
MAINTAINING THE DUAL SCHOOL SYSTEM FOUND TO EXIST IN DETROIT.  THEY ARE
APPARENTLY OF THE VIEW THAT ONCE SUCH PARTICIPATION IS SHOWN, THE
DISTRICT COURT SHOULD HAVE A RELATIVELY FREE HAND TO RECONSTRUCT SCHOOL
DISTRICTS OUTSIDE OF DETROIT IN FASHIONING RELIEF.  OUR ASSUMPTION,
ARGUENDO, SEE INFRA, AT 748, THAT STATE AGENCIES DID PARTICIPATE IN THE
MAINTENANCE OF THE DETROIT SYSTEM, SHOULD MAKE IT CLEAR THAT IT IS NOT
ON THIS POINT THAT WE PART COMPANY.  /21/  THE DIFFERENCE BETWEEN US
ARISES INSTEAD FROM ESTABLISHED DOCTRINE LAID DOWN BY OUR CASES. 
BROWN, SUPRA; GREEN, SUPRA; SWANN, SUPRA; SCOTLAND NECK, SUPRA; AND
EMPORIA, SUPRA, EACH ADDRESSED THE ISSUE OF CONSTITUTIONAL WRONG IN
TERMS OF AN ESTABLISHED GEOGRAPHIC AND ADMINISTRATIVE SCHOOL SYSTEM
POPULATED BY BOTH NEGRO AND WHITE CHILDREN.  IN SUCH A CONTEXT, TERMS
SUCH AS "UNITARY" AND "DUAL" SYSTEMS, AND "RACIALLY IDENTIFIABLE
SCHOOLS," HAVE MEANING, AND THE NECESSARY FEDERAL AUTHORITY TO REMEDY
THE CONSTITUTIONAL WRONG IS FIRMLY ESTABLISHED.  BUT THE REMEDY IS
NECESSARILY DESIGNED, AS ALL REMEDIES ARE, TO RESTORE THE VICTIMS OF
DISCRIMINATORY CONDUCT TO THE POSITION THEY WOULD HAVE OCCUPIED IN THE
ABSENCE OF SUCH CONDUCT.  DISPARATE TREATMENT OF WHITE AND NEGRO
STUDENTS OCCURRED WITHIN THE DETROIT SCHOOL SYSTEM, AND NOT ELSEWHERE,
AND ON THIS RECORD THE REMEDY MUST BE LIMITED TO THAT SYSTEM.  SWANN,
SUPRA, AT 16. 

THE CONSTITUTIONAL RIGHT OF THE NEGRO RESPONDENTS RESIDING IN DETROIT
IS TO ATTEND A UNITARY SCHOOL SYSTEM IN THAT DISTRICT.  UNLESS
PETITIONERS DREW THE DISTRICT LINES IN A DISCRIMINATORY FASHION, OR
ARRANGED FOR WHITE STUDENTS RESIDING IN THE DETROIT DISTRICT TO ATTEND
SCHOOLS IN OAKLAND AND MACOMB COUNTIES, THEY WERE UNDER NO
CONSTITUTIONAL DUTY TO MAKE PROVISIONS FOR NEGRO STUDENTS TO DO SO. 

THE VIEW OF THE DISSENTERS, THAT THE EXISTENCE OF A DUAL SYSTEM IN
DETROIT CAN BE MADE THE BASIS FOR A DECREE REQUIRING CROSS-DISTRICT
TRANSPORTATION OF PUPILS CANNOT BE SUPPORTED ON THE GROUNDS THAT IT
REPRESENTS MERELY THE DEVISING OF A SUITABLY FLEXIBLE REMEDY FOR THE
VIOLATION OF RIGHTS ALREADY ESTABLISHED BY OUR PRIOR DECISIONS.  IT CAN
BE SUPPORTED ONLY BE DRASTIC EXPANSION OF THE CONSTITUTIONAL RIGHT
ITSELF, AN EXPANSION WITHOUT ANY SUPPORT IN EITHER CONSTITUTIONAL
PRINCIPLE OR PRECEDENT.  /22/

        III 

WE RECOGNIZE THAT THE SIX-VOLUME RECORD PRESENTLY UNDER
CONSIDERATION CONTAINS LANGUAGE AND SOME SPECIFIC INCIDENTAL FINDINGS
THOUGHT BY THE DISTRICT COURT TO AFFORD A BASIS FOR INTERDISTRICT
RELIEF.  HOWEVER, THESE COMPARATIVELY ISOLATED FINDINGS AND BRIEF
COMMENTS CONCERN ONLY ONE POSSIBLE INTERDISTRICT VIOLATION AND ARE
FOUND IN THE CONTEXT OF A PROCEEDING THAT, AS THE DISTRICT COURT
CONCEDED, INCLUDED NO PROOF OF SEGREGATION PRACTICED BY ANY OF THE 85
SUBURBAN SCHOOL DISTRICTS SURROUNDING DETROIT.  THE COURT OF APPEALS,
FOR EXAMPLE, RELIED ON FIVE FACTORS WHICH, IT HELD, AMOUNTED TO
UNCONSTITUTIONAL STATE ACTION WITH RESPECT TO THE VIOLATIONS FOUND IN
THE DETROIT SYSTEM: 

(1) IT HELD THE STATE DERIVATIVELY RESPONSIBLE FOR THE DETROIT
BOARD'S VIOLATIONS ON THE THEORY THAT ACTIONS OF DETROIT AS A POLITICAL
SUBDIVISION OF THE STATE WERE ATTRIBUTABLE TO THE STATE.  ACCEPTING,
ARGUENDO, THE CORRECTNESS OF THIS FINDING OF STATE RESPONSIBILITY FOR
THE SEGREGATED CONDITIONS WITHIN THE CITY OF DETROIT, IT DOES NOT
FOLLOW THAT AN INTERDISTRICT REMEDY IS CONSTITUTIONALLY JUSTIFIED OR
REQUIRED.  WITH A SINGLE EXCEPTION, DISCUSSED LATER, THERE HAS BEEN NO
SHOWING THAT EITHER THE STATE OR ANY OF THE 85 OUTLYING DISTRICTS
ENGAGED IN ACTIVITY THAT HAS A CROSS-DISTRICT EFFECT.  THE BOUNDARIES
OF THE DETROIT SCHOOL DISTRICT, WHICH ARE COTERMINOUS WITH THE
BOUNDARIES OF THE CITY OF DETROIT, WERE ESTABLISHED OVER A CENTURY AGO
BY NEUTRAL LEGISLATION WHEN THE CITY WAS INCORPORATED; THERE IS NO
EVIDENCE IN THE RECORD, NOR IS THERE ANY SUGGESTION BY THE RESPONDENTS,
THAT EITHER THE ORIGINAL BOUNDARIES OF THE DETROIT SCHOOL DISTRICT, OR
ANY OTHER SCHOOL DISTRICT IN MICHIGAN, WERE ESTABLISHED FOR THE PURPOSE
OF CREATING, MAINTAINING, OR PERPETUATING SEGREGATION OF RACES.  THERE
IS NO CLAIM AND THERE IS NO EVIDENCE HINTING THAT PETITIONER OUTLYING
SCHOOL DISTRICTS AND THEIR PREDECESSORS, OR THE 30-ODD OTHER SCHOOL
DISTRICTS IN THE TRICOUNTY AREA--BUT OUTSIDE THE DISTRICT COURT'S
"DESEGREGATION AREA"--HAVE EVER MAINTAINED OR OPERATED ANYTHING BUT
UNITARY SCHOOL SYSTEMS.  UNITARY SCHOOL SYSTEMS HAVE BEEN REQUIRED FOR
MORE THAN A CENTURY BY THE MICHIGAN CONSTITUTION AS IMPLEMENTED BY
STATE LAW.  /23/  WHERE THE SCHOOLS OF ONLY ONE DISTRICT HAVE BEEN
AFFECTED, THERE IS NO CONSTITUTIONAL POWER IN THE COURTS TO DECREE
RELIEF BALANCING THE RACIAL COMPOSITION OF THAT DISTRICT'S SCHOOLS WITH
THOSE OF THE SURROUNDING DISTRICTS.     (2) THERE WAS EVIDENCE
INTRODUCED AT TRIAL THAT, DURING THE LATE 1950'S, CARVER SCHOOL
DISTRICT, A PREDOMINANTLY NEGRO SUBURBAN DISTRICT, CONTRACTED TO HAVE
NEGRO HIGH SCHOOL STUDENTS SENT TO A PREDOMINANTLY NEGRO SCHOOL IN
DETROIT.  AT THE TIME, CARVER WAS AN INDEPENDENT SCHOOL DISTRICT THAT
HAD NO HIGH SCHOOL BECAUSE, ACCORDING TO THE TRIAL EVIDENCE, "CARVER
DISTRICT . . . DID NOT HAVE A PLACE FOR ADEQUATE HIGH SCHOOL
FACILITIES."  484 F.2D,AT 231.  ACCORDINGLY, ARRANGEMENTS WERE MADE
WITH NORTHERN HIGH SCHOOL IN THE ABUTTING DETROIT SCHOOL DISTRICT SO
THAT THE CARVER HIGH SCHOOL STUDENTS COULD OBTAIN A SECONDARY SCHOOL
EDUCATION.  IN 1960 THE OAK PARK SCHOOL DISTRICT, A PREDOMINANTLY WHITE
SUBURBAN DISTRICT, ANNEXED THE PREDOMINANTLY NEGRO CARVER SCHOOL
DISTRICT, THROUGH THE INITIATIVE OF LOCAL OFFICIALS.  IBID.  THERE IS,
OF COURSE, NO CLAIM THAT THE 1960 ANNEXATION HAD A SEGREGATIVE PURPOSE
OR RESULT OR THAT OAK PARK NOW MAINTAINS A DUAL SYSTEM. 

ACCORDING TO THE COURT OF APPEALS, THE ARRANGEMENT DURING THE LATE
1950'S WHICH ALLOWED CARVER STUDENTS TO BE EDUCATED WITHIN THE DETROIT
DISTRICT WAS DEPENDENT UPON THE "TACIT OR EXPRESS" APPROVAL OF THE
STATE BOARD OF EDUCATION AND WAS THE RESULT OF THE REFUSAL OF THE WHITE
SUBURBAN DISTRICTS TO ACCEPT THE CARVER STUDENTS.  ALTHOUGH THERE IS
NOTHING IN THE RECORD SUPPORTING THE COURT OF APPEALS' SUPPOSITION THAT
SUBURBAN WHITE SCHOOLS REFUSED TO ACCEPT THE CARVER STUDENTS, IT
APPEARS THAT THIS SITUATION, WHETHER WITH OR WITHOUT THE STATE'S
CONSENT, MAY HAVE HAD A SEGREGATIVE EFFECT ON THE SCHOOL POPULATIONS OF
THE TWO DISTRICTS INVOLVED.  HOWEVER SINCE "THE NATURE OF THE VIOLATION
DETERMINES THE SCOPE OF THE REMEDY," 402 U.S.,AT 16, THIS ISOLATED
INSTANCE AFFECTING TWO OF THE SCHOOL DISTRICTS WOULD NOT JUSTIFY THE
BROAD METROPOLITANWIDE REMEDY COMTEMPLATED BY THE DISTRICT COURT AND
APPROVED BY THE COURT OF APPEALS PARTICULARLY SINCE IT EMBRACED
POTENTIALLY 52 DISTRICTS HAVING NO RESPONSIBILITY FOR THE ARRANGEMENT
AND INVOLVED 503,000 PUPILS IN ADDITION TO DETROIT'S 276,000 STUDENTS. 

(3) THE COURT OF APPEALS CITED THE ENACTMENT OF STATE LEGISLATION
(ACT 48) WHICH HAD THE EFFECT OF RESCINDING DETROIT'S VOLUNTARY
DESEGREGATION PLAN (THE APRIL 7 PLAN).  THAT PLAN, HOWEVER, AFFECTED
ONLY 12 OF 2 DETROIT HIGH SCHOOLS AND HAD NO CAUSAL CONNECTION WITH THE
DISTRIBUTION OF PUPILS BY RACE BETWEEN DETROIT AND THE OTHER SCHOOL
DISTRICTS WITHIN THE TRI-COUNTY AREA. 

(4) THE COURT RELIED ON THE STATE'S AUTHORITY TO SUPERVISE
SCHOOLSITE SELECTION AND TO APPROVE BUILDING CONSTRUCTION AS A BASIS
FOR HOLDING THE STATE RESPONSIBLE FOR THE SEGREGATIVE RESULTS OF THE
SCHOOL CONSTRUCTION PROGRAM IN DETROIT.  SPECIFICALLY, THE COURT OF
APPEALS ASSERTED THAT DURING THE PERIOD BETWEEN 1949 AND 1962 THE STATE
BOARD OF EDUCATION EXERCISED GENERAL AUTHORITY AS OVERSEER OF SITE
ACQUISITIONS BY LOCAL BOARDS FOR NEW SCHOOL CONSTRUCTION, AND SUGGESTED
THAT THIS STATE-APPROVED SCHOOL CONSTRUCTION "FOSTERED SEGREGATION
THROUGHOUT THE DETROIT METROPOLITAN AREA."  484 F.2D,AT 241.  THIS
BRIEF COMMENT, HOWEVER, IS NOT SUPPORTED BY THE EVIDENCE TAKEN AT TRIAL
SINCE THAT EVIDENCE WAS SPECIFICALLY LIMITED TO PROOF THAT SCHOOLSITE
ACQUISITION AND SCHOOL CONSTRUCTION WITHIN THE CITY OF DETROIT PRODUCED
DE JURE SEGREGATION WITHIN THE CITY ITSELF.  ID., AT 235 - 238.  THUS,
THERE WAS NO EVIDENCE SUGGESTING THAT THE STATE'S ACTIVITIES WITH
RESPECT TO EITHER SCHOOL CONSTRUCTION OR SITE ACQUISITION WITHIN
DETROIT AFFECTED THE RACIAL COMPOSITION OF THE SCHOOL POPULATION
OUTSIDE DETROIT OR, CONVERSELY, THAT THE STATE'S SCHOOL CONSTRUCTION
AND SITE ACQUISITION ACTIVITIES WITHIN THE OUTLYING DISTRICTS AFFECTED
THE RACIAL COMPOSITION OF THE SCHOOLS WITHIN DETROIT. 

(5) THE COURT OF APPEALS ALSO RELIED UPON THE DISTRICT COURT'S

  FINDING:  "THIS AND OTHER FINANCIAL LIMITATIONS, SUCH AS THOSE ON
BONDING AND THE WORKING OF

  THE STATE AID FORMULA WHEREBY SUBURBAN DISTRICTS WERE ABLE TO
MAKE FAR LARGER PER PUPIL

  EXPENDITURES DESPITE LESS TAX EFFORT, HAVE CREATED AND
PERPETUATED SYSTEMATIC EDUCATIONAL

  INEQUALITIES."  ID., AT 239.  HOWEVER, NEITHER THE COURT OF
APPEALS NOR THE DISTRICT COURT OFFERED ANY INDICATION IN THE RECORD OR
IN THEIR OPINIONS AS TO HOW, IF AT ALL, THE AVAILABILITY OF STATE
FINANCED AID FOR SOME MICHIGAN STUDENTS OUTSIDE DETROIT, BUT NOT FOR
THOSE WITHIN DETROIT, MIGHT HAVE AFFECTED THE RACIAL CHARACTER OF ANY
OF THE STATE'S SCHOOL DISTRICTS.  FURTHERMORE, AS THE RESPONDENTS
RECOGNIZE, THE APPLICATION OF OUR RECENT RULING IN SAN ANTONIO SCHOOL
DISTRICT V. RODRIGUEZ, 411 U.S. 1 (1973), TO THIS STATE EDUCATION
FINANCING SYSTEM IS QUESTIONABLE, AND THIS ISSUE WAS NOT ADDRESSED BY
EITHER THE COURT OF APPEALS OR THE DISTRICT COURT.  THIS, AGAIN,
UNDERSCORES THE CRUCIAL FACT THAT THE THEORY UPON WHICH THE CASE
PROCEEDED RELATED SOLELY TO THE ESTABLISHMENT OF DETROIT CITY
VIOLATIONS AS A BASIS FOR DESEGREGATING DETROIT SCHOOLS AND THAT, AT
THE TIME OF TRIAL, NEITHER THE PARTIES NOR THE TRIAL JUDGE WAS
CONCERNED WITH A FOUNDATION FOR INTERDISTRICT RELIEF.  /24/

        IV 

PETITIONERS HAVE URGED THAT THEY WERE DENIED DUE PROCESS BY THE
MANNER IN WHICH THE DISTRICT COURT LIMITED THEIR PARTICIPATION AFTER
INTERVENTION WAS ALLOWED, THE PRECLUDING ADEQUATE OPPORTUNITY TO
PRESENT EVIDENCE THAT THEY HAD COMMITTED NO ACTS HAVING A SEGREGATIVE
EFFECT IN DETROIT.  IN LIGHT OF OUR HOLDING THAT, ABSENT AN
INTERDISTRICT VIOLATION, THERE IS NO BASIS FOR AN INTERDISTRICT REMEDY,
WE NEED NOT REACH THESE CLAIMS.  IT IS CLEAR, HOWEVER, THAT THE
DISTRICT COURT, WITH THE APPROVAL OF THE COURT OF APPEALS, HAS PROVIDED
AN INTERDISTRICT REMEDY IN THE FACE OF A RECORD WHICH SHOWS NO
CONSTITUTIONAL VIOLATIONS THAT WOULD CALL FOR EQUITABLE RELIEF EXCEPT
WITHIN THE CITY OF DETROIT.  IN THESE CIRCUMSTANCES THERE WAS NO
OCCASION FOR THE PARTIES TO ADDRESS, OR FOR THE DISTRICT COURT TO
CONSIDER WHETHER THERE WERE RACIALLY DISCRIMINATORY ACTS FOR WHICH ANY
OF THE 53 OUTLYING DISTRICTS WERE RESPONSIBLE AND WHICH HAD DIRECT AND
SIGNIFICANT SEGREGATIVE EFFECT ON SCHOOLS OF MORE THAN ONE DISTRICT. 

WE CONCLUDE THAT THE RELIEF ORDERED BY THE DISTRICT COURT AND
AFFIRMED BY THE COURT OF APPEALS WAS BASED UPON AN ERRONEOUS STANDARD
AND WAS UNSUPPORTED BY RECORD EVIDENCE THAT ACTS OF THE OUTLYING
DISTRICTS EFFECTED THE DISCRIMINATION FOUND TO EXIST IN THE SCHOOLS OF
DETROIT.  ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED
AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION LEADING TO FORMULATION OF A DECREE DIRECTED TO ELIMINATING THE
SEGREGATION FOUND TO EXIST IN DETROIT CITY SCHOOLS, A REMEDY WHICH HAS
BEEN DELAYED SINCE 1970. 

              REVERSED AND REMANDED. 

/1/  484 F.2D 215 (CA6), CERT. GRANTED, 414 U.S. 1038 (1973). 

/2/  THE STANDING OF THE NAACP AS A PROPER PARTY PLAINTIFF WAS NOT
CONTESTED IN THE TRIAL COURT AND IS NOT AN ISSUE IN THIS CASE. 

/3/  OPTIONAL ZONES, SOMETIMES REFERRED TO AS DUAL ZONES OR DUAL
OVERLAPPING ZONES, PROVIDE PUPILS LIVING WITHIN CERTAIN AREAS A CHOICE
OF ATTENDANCE AT ONE OR TWO HIGH SCHOOLS. 

/4/  THE COURT OF APPEALS FOUND RECORD EVIDENCE THAT IN AT LEAST ONE
INSTANCE DURING THE PERIOD 1957 - 1958, DETROIT SERVED A SUBURBAN
SCHOOL DISTRICT BY CONTRACTING WITH IT TO EDUCATE ITS NEGRO HIGH SCHOOL
STUDENTS BY TRANSPORTING THEM AWAY FROM NEARBY SUBURBAN WHITE HIGH
SCHOOLS, AND PAST DETROIT HIGH SCHOOLS WHICH WERE PREDOMINANTLY WHITE,
TO ALL OR PREDOMINANTLY NEGRO DETROIT SCHOOLS.  484 F.2D,AT 231. 

/5/  SCHOOL DISTRICTS IN THE STATE OF MICHIGAN ARE INSTRUMENTALITIES
OF THE STATE AND SUBORDINATE TO ITS STATE BOARD OF EDUCATION AND
LEGISLATURE.  THE CONSTITUTION OF THE STATE OF MICHIGAN, ART. 8, 2,
PROVIDES IN RELEVANT PART: 

"THE LEGISLATURE SHALL MAINTAIN AND SUPPORT A SYSTEM OF FREE PUBLIC
ELEMENTARY AND SECONDARY SCHOOLS AS DEFINED BY LAW." 

SIMILARLY, THE MICHIGAN SUPREME COURT HAS STATED THAT "(THE SCHOOL
DISTRICT IS A STATE AGENCY.  MOREOVER, IT IS OF LEGISLATIVE CREATION .
. ."  ATTORNEY GENERAL EX REL.  KIES V. LOWREY, 131 MICH. 639, 644, 92
N.W. 289, 290 (1902); "'EDUCATION IN MICHIGAN BELONGS TO THE STATE.  IT
IS NO PART OF THE LOCAL SELF-GOVERNMENT INHERENT IN THE TOWNSHIP OR
MUNICIPALITY, EXCEPT SO FAR AS THE LEGISLATURE MAY CHOOSE TO MAKE IT
SUCH.  THE CONSTITUTION HAS TURNED THE WHOLE SUBJECT OVER TO THE
LEGISLATURE . . ..'"  ATTORNEY GENERAL EX REL.  ZACHARIAS V. DETROIT
BOARD OF EDUCATION, 154 MICH. 584, 590, 118 N.W. 606, 609 (1908). 

/6/  "SEC.  12.  THE IMPLEMENTATION OF ANY ATTENDANCE PROVISIONS FOR
THE 1970 - 71 SCHOOL YEAR DETERMINED BY ANY FIRST CLASS SCHOOL DISTRICT
BOARD SHALL BE DELAYED PENDING THE DATE OF COMMENCEMENT OF FUNCTIONS BY
THE FIRST CLASS SCHOOL DISTRICT BOARDS ESTABLISHED UNDER THE PROVISIONS
OF THIS AMENDATORY ACT BUT SUCH PROVISION SHALL NOT IMPAIR THE RIGHT OF
ANY SUCH BOARD TO DETERMINE AND IMPLEMENT PRIOR TO SUCH DATE SUCH
CHANGES IN ATTENDANCE PROVISIONS AS ARE MANDATED BY PRACTICAL NECESSITY
. . ."  ACT NO. 48, 12, MICH. PUB. ACTS OF 1970; MICH. COMP. LAWS
388.182 (1970). 

/7/  THE DISTRICT COURT BRIEFLY ALLUDED TO THE POSSIBILITY THAT THE
STATE, ALONG WITH PRIVATE PERSONS, HAD CAUSED, IN PART, THE HOUSING
PATTERNS OF THE DETRIOT METROPOLITAN AREA WHICH, IN TURN, PRODUCED THE
PREDOMINATELY WHITE AND PREDOMINATELY NEGRO NEIGHBORHOODS THAT
CHARACTERIZED DETROIT: 

"IT IS NO ANSWER TO SAY THAT RESTRICTED PRACTICES GREW GRADUALLY (AS
THE BLACK POPULATION IN THE AREA INCREASED BETWEEN 1920 AND 1970), OR
THAT SINCE 1948 RACIAL RESTRICTIONS ON THE OWNERSHIP OF REAL PROPERTY
HAVE BEEN REMOVED.  THE POLICIES PURSUED BY BOTH GOVERNMENT AND PRIVATE
PERSONS AND AGENCIES HAVE A CONTINUING AND PRESENT EFFECT UPON THE
COMPLEXION OF THE COMMUNITY--AS WE KNOW, THE CHOICE OF A RESIDENCE IS A
RELATIVELY INFREQUENT AFFAIR.  FOR MANY YEARS FHA AND VA OPENLY ADVISED
AND ADVOCATED THE MAINTENANCE OF 'HARMONIOUS'  NEIGHBORHOODS, I.E.,
RACIALLY AND ECONOMICALLY HARMONIOUS.  THE CONDITIONS CREATED
CONTINUE."  338 F.SUPP.  582, 587 (ED MICH. 1971). 

THUS, THE DISTRICT COURT CONCLUDED: 

"THE AFFIRMATIVE OBLIGATION OF THE DEFENDANT BOARD HAS BEEN AND IS
TO ADOPT AND IMPLEMENT PUPIL ASSIGNMENT PRACTICES AND POLICIES THAT
COMPENSATE FOR AND AVOID INCORPORATION INTO THE SCHOOL SYSTEM THE
EFFECTS OF RESIDENTIAL RACIAL SEGREGATION."  ID., AT 593. 

THE COURT OF APPEALS, HOWEVER, EXPRESSLY NOTED THAT: 

"IN AFFIRMING THE DISTRICT JUDGE'S FINDINGS OF CONSTITUTIONAL
VIOLATIONS BY THE DETROIT BOARD OF EDUCATION AND BY THE STATE
DEFENDANTS RESULTING IN SEGREGATED SCHOOLS IN DETROIT, WE HAVE NOT
RELIED AT ALL UPON TESTIMONY PERTAINING TO SEGREGATED HOUSING EXCEPT AS
SCHOOL CONSTRUCTION PROGRAMS HELPED CAUSE OR MAINTAIN SUCH
SEGREGATION."  484 F.2D,AT 242. 

ACCORDINGLY, IN ITS PRESENT POSTURE, THE CASE DOES NOT PRESENT ANY
QUESTION CONCERNING POSSIBLE STATE HOUSING VIOLATIONS. 

/8/  ON MARCH 22, 1971, A GROUP OF DETROIT RESIDENTS, WHO WERE
PARENTS OF CHILDREN ENROLLED IN THE DETROIT PUBLIC SCHOOLS, WERE
PERMITTED TO INTERVENE AS PARTIES DEFENDANT.  ON JUNE 24, 1971, THE
DISTRICT JUDGE ALLUDED TO THE "POSSIBILITY" OF A METROPOLITAN SCHOOL
SYSTEM STATING:  "(AS I HAVE SAID TO SEVERAL WITNESSES IN THIS CASE:
'HOW DO YOU DESEGREGATE A BLACK CITY, OR A BLACK SCHOOL SYSTEM.." 
PETITIONERS' APPENDIX 243A (HEREINAFTER PET. APP.).  SUBSEQUENTLY, ON
JULY 16, 1971, VARIOUS PARENTS FILED A MOTION TO REQUIRE JOINDER OF ALL
OF THE 85 INDEPENDENT SCHOOL DISTRICTS WITHIN THE TRI-COUNTY AREA. 

/9/  THE RESPONDENTS, AS PLAINTIFFS BELOW, OPPOSED THE MOTION TO
JOIN THE ADDITIONAL SCHOOL DISTRICTS, ARGUING THAT THE PRESENCE OF THE
STATE DEFENDANTS WAS SUFFICIENT AND ALL THAT WAS REQUIRED, EVEN IF, IN
SHAPING A REMEDY, THE AFFAIRS OF THESE OTHER DISTRICTS WAS TO BE
AFFECTED.  338 F.SUPP.,AT 595. 

/10/  AT THE TIME OF THE 1970 CENSUS, THE POPULATION OF MICHIGAN WAS
8,875,083, ALMOST HALF OF WHICH, 4,199,931, RESIDED IN THE TRI-COUNTY
AREA OF WAYNE, OAKLAND, AND MACOMB.  OAKLAND AND MACOMB COUNTIES ABUT
WAYNE COUNTY TO THE NORTH, AND OAKLAND COUNTY ABUTS MACOMB COUNTY TO
THE WEST.  THESE COUNTIES COVER 1,952 SQUARE MILES, MICHIGAN
STATISTICAL ABSTRACT (9TH ED. 1972), AND THE AREA IS APPROXIMATELY THE
SIZE OF THE STATE OF DELAWARE (2,057 SQUARE MILES), MORE THAN HALF
AGAIN THE SIZE OF THE STATE OF RHODE ISLAND (1,214 SQUARE MILES) AND
ALMOST 30 TIMES THE SIZE OF THE DISTRICT OF COLUMBIA (67 SQUARE
MILES).  STATISTICAL ABSTRACT OF THE UNITED STATES (93D ED. 1972).  THE
POPULATIONS OF WAYNE, OAKLAND, AND MACOMB COUNTIES WERE 2,666,751;
907,871; AND 625, 309, RESPECTIVELY, IN 1970.  DETROIT, THE STATE'S
LARGEST CITY, IS LOCATED IN WAYNE COUNTY. 

IN THE 1970 - 1971 SCHOOL YEAR, THERE WERE 2,157,449 CHILDREN
ENROLLED IN SCHOOL DISTRICTS IN MICHIGAN.  THERE ARE 86 INDEPENDENT,
LEGALLY DISTINCT SCHOOL DISTRICTS WITHIN THE TRI-COUNTY AREA, HAVING A
TOTAL ENROLLMENT OF APPROXIMATELY 1,000,000 CHILDREN.  IN 1970, THE
DETROIT BOARD OF EDUCATION OPERATED 319 SCHOOLS WITH APPROXIMATELY
276,000 STUDENTS. 

/11/  "IN ITS FORMAL OPINION, SUBSEQUENTLY ANNOUNCED, THE DISTRICT
COURT CANDIDLY RECOGNIZED: 

"IT SHOULD BE NOTED THAT THE COURT HAS TAKEN NO PROOFS WITH RESPECT
TO THE ESTABLISHMENT OF THE BOUNDARIES OF THE 86 PUBLIC SCHOOL
DISTRICTS IN THE COUNTIES OF WAYNE, OAKLAND AND MACOMB, NOR ON THE
ISSUE OF WHETHER, WITH THE EXCLUSION OF THE CITY OF DETROIT SCHOOL
DISTRICT, SUCH SCHOOL DISTRICTS HAVE COMMITTED ACTS OF DE JURE
SEGREGATION."  345 F.SUPP.  914, 920 (ED MICH. 1972).     /12/
ACCORDING TO THE DISTRICT COURT, INTERVENTION WAS PERMITTED UNDER FED.
RULE CIV. PROC. 24(A), "INTERVENTION OF RIGHT," AND ALSO UNDER RULE
24(B), "PERMISSIVE INTERVENTION." 

/13/  THIS RATHER ABBREVIATED BRIEFING SCHEDULE WAS MAINTAINED
DESPITE THE FACT THAT THE DISTRICT COURT HAD DEFERRED CONSIDERATION OF
A MOTION MADE EIGHT MONTHS EARLIER, TO BRING THE SUBURBAN DISTRICTS
INTO THE CASE.  SEE TEXT ACCOMPANYING N. 8, SUPRA. 

/14/  AS OF 1970, THE 53 SCHOOL DISTRICTS OUTSIDE THE CITY OF
DETROIT THAT WERE INCLUDED IN THE COURT'S "DESEGREGATION AREA" HAD A
COMBINED STUDENT POPULATION OF APPROXIMATELY 276,000 STUDENTS. 
NEVERTHELESS, THE DISTRICT COURT DIRECTED THAT THE INTERVENING
DISTRICTS SHOULD BE REPRESENTED BY ONLY ONE MEMBER ON THE DESEGREGATION
PANEL WHILE THE DETROIT BOARD OF EDUCATION WAS GRANTED THREE PANEL
MEMBERS.  345 F.SUPP.,AT 917. 

/15/  THE DISTRICT COURT HAD CERTIFIED MOST OF THE FOREGOING RULINGS
FOR INTERLOCUTORY REVIEW PURSUANT TO 28 U.S.C. 1292(B) (1 APP. 265 -
266) AND THE CASE WAS INITIALLY DECIDED ON THE MERITS BY A PANEL OF
THREE JUDGES.  HOWEVER, THE PANEL'S OPINION AND JUDGMENT WERE VACATED
WHEN IT WAS DETERMINED TO REHEAR THE CASE EN BANC, 484 F.2D,AT 218. 

/16/  WITH RESPECT TO THE STATE'S VIOLATIONS, THE COURT OF APPEAL
HELD:  (1) THAT, SINCE THE CITY BOARD IS AN INSTRUMENTALITY OF THE
STATE AND SUBORDINATE TO THE STATE BOARD, THE SEGREGATIVE ACTIONS OF
THE DETROIT BOARD "ARE THE ACTIONS OF AN AGENCY OF THE STATE" (ID., AT
238); (2) THAT THE STATE LEGISLATION RESCINDING DETROIT'S VOLUNTARY
DESEGREGATION PLAN CONTRIBUTED TO INCREASING SEGREGATION IN THE DETROIT
SCHOOLS (IBID.); (3) THAT UNDER STATE LAW PRIOR TO 1962 THE STATE BOARD
HAD AUTHORITY OVER SCHOOL CONSTRUCTION PLANS AND THEREFORE HAD TO BE
HELD RESPONSIBLE "FOR THE SEGREGATIVE RESULTS" (IBID); (4) THAT THE
"STATE STATUTORY SCHEME OF SUPPORT OF TRANSPORTATION FOR SCHOOL
CHILDREN DIRECTLY DISCRIMINATED AGAINST DETROIT" (ID., AT 240) BY NOT
PROVIDING TRANSPORTATION FUNDS TO DETROIT ON THE SAME BASIS AS FUNDS
WERE PROVIDED TO SUBURBAN DISTRICTS (ID., AT 238); AND (5) THAT THE
TRANSPORTATION OF NEGRO STUDENTS FROM ONE SUBURBAN DISTRICT TO A NEGRO
SCHOOL IN DETROIT MUST HAVE HAD THE "APPROVAL, TACIT OR EXPRESS, OF THE
STATE BOARD OF EDUCATION."  (IBID.) 

/17/  THE COURT SOUGHT TO DISTINGUISH BRADLEY V. SCHOOL BOARD OF THE
CITY OF RICHMOND, 462 F.2D 1058 (CA4 1972), AFF'D BY AN EQUALLY DIVIDED
COURT, 412 U.S. 92 (1973), ON THE GROUNDS THAT THE DISTRICT COURT IN
THAT CASE HAD ORDERED AN ACTUAL CONSOLIDATION OF THREE SCHOOL DISTRICTS
AND THAT VIRGINIA'S CONSTITUTION AND STATUTES, UNLIKE MICHIGAN'S, GAVE
THE LOCAL BOARDS EXCLUSIVE POWER TO OPERATE THE PUBLIC SCHOOLS.  484
F.2D,AT 251. 

/18/  ALTHOUGH THE LIST OF ISSUES PRESENTED FOR REVIEW IN
PETITIONERS' BRIEFS AND PETITIONS FOR WRITS OF CERTIORARI DO NOT
INCLUDE ARGUMENTS ON THE FINDINGS OF SEGREGATIVE VIOLATION ON THE PART
OF THE DETROIT DEFENDANTS, TWO OF THE PETITIONERS ARGUE IN BRIEF THAT
THESE FINDINGS CONSTITUTE ERROR.  THIS COURT'S RULES 23(A)(C) AND
40(A)(D)(2), AT A MINIMUM, LIMIT OUR REVIEW OF THE DETROIT VIOLATION
FINDINGS TO "PLAIN ERROR," AND, UNDER OUR DECISION LAST TERM IN KEYES
V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, 413 U.S. 189 (1973), THE
FINDINGS APPEAR TO BE CORRECT. 

/19/  DISPARITY IN THE RACIAL COMPOSITION OF PUPILS WITHIN A SINGLE
DISTRICT MAY WELL CONSTITUTE A "SIGNAL" TO A DISTRICT COURT AT THE
OUTSET, LEADING TO INQUIRY INTO THE CAUSES ACCOUNTING FOR A PRONOUNCED
RACIAL IDENTIFIABILITY OF SCHOOLS WITHIN ONE SCHOOL SYSTEM.  IN SWANN,
FOR EXAMPLE, WE WERE DEALING WITH A LARGE BUT SINGLE INDEPENDENT SCHOOL
SYSTEM, AND A UNANIMOUS COURT NOTED:  "WHERE THE . . . PROPOSED PLAN
FOR CONVERSION FROM A DUAL TO A UNITARY SYSTEM CONTEMPLATES THE
CONTINUED EXISTENCE OF SOME SCHOOLS THAT ARE ALL OR PREDOMINANTLY OF
ONE RACE (THE SCHOOL AUTHORITY HAS) THE BURDEN OF SHOWING THAT SUCH
SCHOOL ASSIGNMENTS ARE GENUINELY NONDISCRIMINATORY."  402 U.S.,AT 26. 
SEE ALSO KEYES, SUPRA, AT 208.  HOWEVER, THE USE OF SIGNIFICANT RACIAL
IMBALANCE IN SCHOOLS WITHIN AN AUTONOMOUS SCHOOL DISTRICT AS A SIGNAL
WHICH OPERATES SIMPLY TO SHIFT THE BURDEN OF PROOF, IS A VERY DIFFERENT
MATTER FROM EQUATING RACIAL IMBALANCE WITH A CONSTITUTIONAL VIOLATION
CALLING FOR A REMEDY.  KEYES, SUPRA, ALSO INVOLVED A REMEDIAL ORDER
WITHIN A SINGLE AUTONOMOUS SCHOOL DISTRICT. 

/20/  UNDER THE MICHIGAN SCHOOL CODE OF 1955, THE LOCAL SCHOOL
DISTRICT IS AN AUTONOMOUS POLITICAL BODY CORPORATE, OPERATING THROUGH A
BOARD OF EDUCATION POPULARLY ELECTED.  MICH. COMP. LAWS 340.27, 340.55,
340.107, 340.148, 340.149, 340.188.  AS SUCH, THE DAY-TO-DAY AFFAIRS OF
THE SCHOOL DISTRICT ARE DETERMINED AT THE LOCAL LEVEL IN ACCORDANCE
WITH THE PLENARY POWER TO ACQUIRE REAL AND PERSONAL PROPERTY, ID.,
340.26, 340.77, 340.113, 340.165, 340.192, 340.352; TO HIRE AND
CONTRACT WITH PERSONNEL, ID., 340.659, 340.574; TO LEVY TAXES FOR
OPERATIONS, ID., 340.563; TO BORROW AGAINST RECEIPTS, ID., 340.567; TO
DETERMINE THE LENGTH OF SCHOOL TERMS, ID., 340.575; TO CONTROL THE
ADMISSION OF NONRESIDENT STUDENTS, 340.582; TO DETERMINE COURSES OF
STUDY, ID., 340.583; TO PROVIDE A KINDERGARTEN PROGRAM, ID., 340.584;
TO ESTABLISH AND OPERATE VOCATIONAL SCHOOLS, ID., 340.585; TO OFFER
ADULT EDUCATION PROGRAMS, ID., 340.586; TO ESTABLISH ATTENDANCE AREAS,
ID., 340.  589; TO ARRANGE FOR TRANSPORTATION OF NONRESIDENT STUDENTS,
ID., 340.  591; TO ACQUIRE TRANSPORTATION EQUIPMENT, ID., 340.594; TO
RECEIVE GIFTS AND BEQUESTS FOR EDUCATIONAL PURPOSES, ID., 340.605; TO
EMPLOY AN ATTORNEY, ID., 340.609; TO SUSPEND OR EXPEL STUDENTS, ID.,
340.613; TO MAKE RULES AND REGULATIONS FOR THE OPERATION OF SCHOOLS,
ID., 340.614; TO CAUSE TO BE LEVIED AUTHORIZED MILLAGE, ID., 340.643A;
TO ACQUIRE PROPERTY BY EMINENT DOMAIN, ID., 340.711 ET SEQ.; AND TO
APPROVE AND SELECT TEXTBOOKS, ID., 340.882. 

/21/  SINCE THE COURT HAS HELD THAT A RESIDENT OF A SCHOOL DISTRICT
HAS A FUNDAMENTAL RIGHT PROTECTED BY THE FEDERAL CONSTITUTION TO VOTE
IN A DISTRICT ELECTION, IT WOULD SEEM INCONGRUOUS TO DISPARAGE THE
IMPORTANCE OF THE SCHOOL DISTRICT IN A DIFFERENT CONTEXT.  KRAMER V.
UNION FREE SCHOOL DISTRICT NO. 15, 395 U.S. 621, 626 (1969).  WHILE THE
DISTRICT THERE INVOLVED WAS LOCATED IN NEW YORK, NONE OF THE FACTS IN
OUR POSSESSION SUGGEST THAT THE RELATION OF SCHOOL DISTRICTS TO THE
STATE IS SIGNIFICANTLY DIFFERENT IN NEW YORK FROM THAT IN MICHIGAN. 

/22/  THE SUGGESTION IN THE DISSENT OF MR. JUSTICE MARSHALL THAT
SCHOOLS WHICH HAVE A MAJORITY OF NEGRO STUDENTS ARE NOT "DESEGREGATED,"
WHATEVER THE RACIAL MAKEUP OF THE SCHOOL DISTRICT'S POPULATION AND
HOWEVER NEUTRALLY THE DISTRICT LINES HAVE BEEN DRAWN AND ADMINISTERED,
FINDS NO SUPPORT IN OUR PRIOR CASES.  IN GREEN V. COUNTY SCHOOL BOARD
OF NEW KENT COUNTY, 391 U.S. 430 (1968), FOR EXAMPLE, THIS COURT
APPROVED A DESEGREGATION PLAN WHICH WOULD HAVE RESULTED IN EACH OF THE
SCHOOLS WITHIN THE DISTRICT HAVING A RACIAL COMPOSITION OF 57% NEGRO
AND 43% WHITE.  IN WRIGHT V. COUNCIL OF THE CITY OF EMPORIA, 407 U.S.
451 (1972), THE OPTIMAL DESEGREGATION PLAN WOULD HAVE RESULTED IN THE
SCHOOLS BEING 66% NEGRO AND 34% WHITE, SUBSTANTIALLY THE SAME
PERCENTAGES AS COULD BE OBTAINED UNDER ONE OF THE PLANS INVOLVED IN
THIS CASE.  AND IN UNITED STATES V. SCOTLAND NECK BOARD OF EDUCATION,
407 U.S. 484, A SCHOOL DISTRICT WHICH HAD A RACIAL COMPOSITION OF 77%
NEGRO AND 22% WHITE.  IN NONE OF THESE CASES WAS IT EVEN INTIMATED THAT
"ACTUAL DESEGREGATION" COULD NOT BE ACCOMPLISHED AS LONG AS THE NUMBER
OF NEGRO STUDENTS WAS GREATER THAN THE NUMBER OF WHITE STUDENTS. 

THE DISSENTS ALSO SEEM TO ATTACH IMPORTANCE TO THE METROPOLITAN
CHARACTER OF DETROIT AND NEIGHBORING SCHOOL DISTRICTS.  BUT THE
CONSTITUTIONAL PRINCIPLES APPLICABLE IN SCHOOL DESEGREGATION CASES
CANNOT VARY IN ACCORDANCE WITH THE SIZE OR POPULATION DISPERSAL OF THE
PARTICULAR CITY, COUNTY, OR SCHOOL DISTRICT AS COMPARED WITH
NEIGHBORING AREAS. 

/23/  PEOPLE EX REL. WORKMAN V. BOARD OF EDUCATION OF DETROIT, 18
MICH. 400 (1869); ACT 34, 28, MICH. PUB. ACTS OF 1867.  THE MICHIGAN
CONSTITUTION AND LAWS PROVIDE THAT "(EVERY SCHOOL DISTRICT SHALL
PROVIDE FOR THE EDUCATION OF ITS PUPILS WITHOUT DISCRIMINATION AS TO
RELIGION, CREED, RACE, COLOR OR NATIONAL ORIGIN," MICH. CONST. 1963,
ART. 8, 2; THAT "(NO SEPARATE SCHOOL OR DEPARTMENT SHALL BE KEPT FOR
ANY PERSON OR PERSONS ON ACCOUNT OF RACE OR COLOR,"  MICH. COMP. LAWS
340.355; AND THAT "(ALL PERSONS, RESIDENTS OF A SCHOOL DISTRICT . . .
SHALL HAVE AN EQUAL RIGHT TO ATTEND SCHOOL THEREIN," ID., 340.356.  SEE
ALSO ACT 319, PART II, C.2, 9, MICH. PUB. ACTS OF 1927. 

/24/  APPARENTLY, WHEN THE DISTRICT COURT, SUA SPONTE, ABRUPTLY
ALTERED THE THEORY OF THE CASE TO INCLUDE THE POSSIBILITY OF
MULTIDISTRICT RELIEF, NEITHER THE PLAINTIFFS NOR THE TRIAL JUDGE
CONSIDERED AMENDING THE COMPLAINT TO EMBRACE THE NEW THEORY. 

MR. JUSTICE STEWART, CONCURRING. 

IN JOINING THE OPINION OF THE COURT, I THINK IT APPROPRIATE, IN VIEW
OF SOME OF THE EXTRAVAGANT LANGUAGE OF THE DISSENTING OPINIONS, TO
STATE BRIEFLY MY UNDERSTANDING OF WHAT IT IS THAT THE COURT DECIDES
TODAY. 

THE RESPONDENTS COMMENCED THIS SUIT IN 1970, CLAIMING ONLY THAT A
CONSTITUTIONALLY IMPERMISSIBLE ALLOCATION OF EDUCATIONAL FACILITIES
ALONG RACIAL LINES HAD OCCURRED IN PUBLIC SCHOOLS WITHIN A SINGLE
SCHOOL DISTRICT WHOSE LINES WERE COTERMINOUS WITH THOSE OF THE CITY OF
DETROIT.  IN THE COURSE OF THE SUBSEQUENT PROCEEDINGS, THE DISTRICT
COURT FOUND THAT PUBLIC SCHOOL OFFICIALS HAD CONTRIBUTED TO RACIAL
SEGREGATION WITHIN THAT DISTRICT BY MEANS OF IMPROPER USE OF ZONING AND
ATTENDANCE PATTERNS, OPTIONAL-ATTENDANCE AREAS, AND BUILDING AND SITE
SELECTION.  THIS FINDING OF A VIOLATION OF THE EQUAL PROTECTION CLAUSE
WAS UPHELD BY THE COURT OF APPEALS, AND IS ACCEPTED BY THIS COURT
TODAY.  SE ANTE.  AT 738N.  18.  IN THE PRESENT POSTURE OF THE CASE,
THEREFORE, THE COURT DOES NOT DEAL WITH QUESTIONS OF SUBSTANTIVE
CONSTITUTIONAL LAW.  THE BASIC ISSUE NOW BEFORE THE COURT CONCERNS,
RATHER, THE APPROPRIATE EXERCISE OF FEDERAL EQUITY JURISDICTION.  /1/ 

NO EVIDENCE WAS ADDUCED AND NO FINDINGS WERE MADE IN THE DISTRICT
COURT CONCERNING THE ACTIVITIES OF SCHOOL OFFICIALS IN DISTRICTS
OUTSIDE THE CITY OF DETROIT, AND NO SCHOOL OFFICIALS FROM THE OUTSIDE
DISTRICTS EVEN PARTICIPATED IN THE SUIT UNTIL AFTER THE DISTRICT COURT
HAD MADE THE INITIAL DETERMINATION THAT IS THE FOCUS OF TODAYS
DECISION.  IN SPITE OF THE LIMITED SCOPE OF THE INQUIRY AND THE
FINDINGS, THE DISTRICT COURT CONCLUDED THAT THE ONLY EFFECTIVE REMEDY
FOR THE CONSTITUTIONAL VIOLATIONS FOUND TO HAVE EXISTED WITHIN THE CITY
OF DETROIT WAS A DESEGREGATION PLAN CALLING FOR BUSING PUPILS TO AND
FROM SCHOOL DISTRICTS OUTSIDE THE CITY.  THE DISTRICT COURT FOUND THAT
ANY DESEGREGATION PLAN OPERATING WHOLLY "'WITHIN THE CORPORATE
GEOGRAPHICAL LIMITS OF THE CITY'"  WOULD BE DEFICIENT SINCE IT "'WOULD
CLEARLY MAKE THE ENTIRE DETROIT PUBLIC SCHOOL SYSTEM RACIALLY
IDENTIFIABLE AS BLACK.'"  484 F.2D 215, 244, 243.  THE COURT OF APPEALS
IN AFFIRMING THE DECISION THAT AN INTER-DISTRICT REMEDY WAS NECESSARY,
NOTED THAT A PLAN LIMITED TO THE CITY OF DETROIT "WOULD RESULT IN AN
ALL BLACK SCHOOL SYSTEM IMMEDIATELY SURROUNDED BY PRACTICALLY ALL WHITE
SUBURBAN SCHOOL SYSTEMS, WITH AN OVERWHELMINGLY WHITE MAJORITY
POPULATION IN THE TOTAL METROPOLITAN AREA."  ID., AT 245. 

THE COURTS WERE IN ERROR FOR THE SIMPLE REASON THAT THE REMEDY THEY
THOUGHT NECESSARY WAS NOT COMMENSURATE WITH THE CONSTITUTIONAL
VIOLATION FOUND.  WITHIN A SINGLE SCHOOL DISTRICT WHOSE OFFICIALS HAVE
BEEN SHOWN TO HAVE ENGAGED IN UNCONSTITUTIONAL RACIAL SEGREGATION, A
REMEDIAL DECREE THAT EFFECTS EVERY INDIVIDUAL SCHOOL MAY BE DICTATED BY
"COMMON SENSE," SEE KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO,
413 U.S. 189, 203, AND INDEED MAY PROVIDE THE ONLY EFFECTIVE MEANS TO
ELIMINATE SEGREGATION "ROOT AND BRANCH,"  GREEN V. COUNTY SCHOOL BOARD
OF NEW KENT COUNTY, 391 U.S. 430, 438, AND TO "EFFECTUATE A TRANSITION
TO A RACIALLY NONDISCRIMINATORY SCHOOL SYSTEM."  BROWN V. BOARD OF
EDUCATION, 349 U.S. 294, 301.  SEE KEYES, SUPRA, AT 198 - 205.  BUT IN
THIS CASE THE COURT OF APPEALS APPROVED THE CONCEPT OF A REMEDIAL
DECREE THAT WOULD GO BEYOND THE BOUNDARIES OF THE DISTRICT WHERE THE
CONSTITUTIONAL VIOLATION WAS FOUND, AND INCLUDE SCHOOLS AND
SCHOOLCHILDREN IN MANY OTHER SCHOOL DISTRICTS THAT HAVE PRESUMPTIVELY
BEEN ADMINISTERED IN COMPLETE ACCORD WITH THE CONSTITUTION. 

THE OPINION OF THE COURT CONVINCINGLY DEMONSTRATES, ANTE, AT 742 -
743, THAT TRADITIONS OF LOCAL CONTROL OF SCHOOLS, TOGETHER WITH THE
DIFFICULTY OF A JUDICIALLY SUPERVISED RESTRUCTURING OF LOCAL
ADMINISTRATION OF SCHOOLS, RENDER IMPROPER AND INEQUITABLE SUCH AN
INTERDISTRICT RESPONSE TO A CONSTITUTIONAL VIOLATION FOUND TO HAVE
OCCURRED ONLY WITHIN A SINGLE SCHOOL DISTRICT. 

THIS IS NOT TO SAY, HOWEVER, THAT AN INTERDISTRICT REMEDY OF THE
SORT APPROVED BY THE COURT OF APPEALS WOULD NOT BE PROPER, OR EVEN
NECESSARY, IN OTHER FACTUAL SITUATIONS.  WERE IT TO BE SHOWN, FOR
EXAMPLE, THAT STATE OFFICIALS HAD CONTRIBUTED TO THE SEPARATION OF THE
RACES BY DRAWING OR REDRAWING SCHOOL DISTRICT LINES, SEE HANEY V.
COUNTY BOARD OF EDUCATION OF SEVIER COUNTY, 429 F.2D 364; CF. WRIGHT V.
COUNCIL OF THE CITY OF EMPORIA 407 U.S. 451; UNITED STATES V. SCOTLAND
NECK BOARD OF EDUCATION, 407 U.S. 484; BY TRANSFER OF SCHOOL UNITS
BETWEEN DISTRICTS, UNITED STATES V. TEXAS, 321 F.SUPP.  1043, AFF'D,
447 F.2D 441; TURNER V. WARREN COUNTY BOARD OF EDUCATION 313 F.SUPP. 
380; OR BY PURPOSEFUL, RACIALLY DISCRIMINATORY USE OF STATE HOUSING OR
ZONING LAWS, THEN A DECREE CALLING FOR TRANSFER OF PUPILS ACROSS
DISTRICT LINES OR FOR RESTRUCTURING OF DISTRICT LINES MIGHT WELL BE
APPROPRIATE.     IN THIS CASE, HOWEVER, NO SUCH INTERDISTRICT VIOLATION
WAS SHOWN.  INDEED, NO EVIDENCE AT ALL CONCERNING THE ADMINISTRATION OF
SCHOOLS OUTSIDE THE CITY OF DETROIT WAS PRESENTED OTHER THEN THE FACT
THAT THESE SCHOOLS CONTAINED A HIGHER PROPORTION OF WHITE PUPILS THAN
DID THE SCHOOLS WITHIN THE CITY.  SINCE THE MERE FACT OF DIFFERENT
RACIAL COMPOSITIONS IN CONTIGUOUS DISTRICTS DOES NOT ITSELF IMPLY OR
CONSTITUTE A VIOLATION OF THE EQUAL PROTECTION CLAUSE IN THE ABSENCE OF
A SHOWING THAT SUCH DISPARITY WAS IMPOSED, FOSTERED, OR ENCOURAGED BY
THE STATE OR ITS POLITICAL SUBDIVISIONS, IT FOLLOWS THAT NO
INTERDISTRICT VIOLATION WAS SHOWN IN THIS CASE.  /2/  THE FORMULATION
OF AN INTER-DISTRICT REMEDY WAS THUS SIMPLY NOT RESPONSIVE TO THE
FACTUAL RECORD BEFORE THE DISTRICT COURT AND WAS AN ABUSE OF THAT
COURT'S EQUITABLE POWERS. 

IN REVERSING THE DECISION OF THE COURT OF APPEALS THIS COURT IS IN
NO WAY TURNING ITS BACK ON THE PROSCRIPTION OF STATE-IMPOSED
SEGREGATION FIRST VOICED IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483,
OR ON THE DELINATION OF REMEDIAL POWERS AND DUTIES MOST RECENTLY
EXPRESSED IN SWANN V. CHARLOTT-MECKLENBURG BOARD OF EDUCATION, 402 U.S.
1.  IN SWANN THE COURT ADDRESSED ITSELF TO THE RANGE OF EQUITABLE
REMEDIES AVAILABLE TO THE COURTS TO EFFECTUATE THE DESEGREGATION
MANDATED BY BROWN AND ITS PROGENY, NOTING THAT THE TASK IN CHOOSING
APPROPRIATE RELIEF IS "TO CORRECT . . . THE CONDITION THAT OFFENDS THE
CONSTITUTION," AND THAT "THE NATURE OF THE VIOLATION DETERMINES THE
SCOPE OF THE REMEDY . . .."  ID., AT 16. 

THE DISPOSITION OF THIS CASE THUS FALLS SQUARELY UNDER THESE
PRINCIPLES.  THE ONLY "CONDITION THAT OFFENDS THE CONSTITUTION" FOUND
BY THE DISTRICT COURT IN THIS CASE IS THE EXISTENCE OF OFFICIALLY
SUPPORTED SEGREGATION IN AND AMONG PUBLIC SCHOOLS IN DETROIT ITSELF. 
THERE WERE NO FINDINGS THAT THE DIFFERING RACIAL COMPOSITION BETWEEN
SCHOOLS IN THE CITY AND IN THE OUTLYING SUBURBS WAS CAUSED BY OFFICIAL
ACTIVITY OF ANY SORT.  IT FOLLOWS THAT THE DECISION TO INCLUDE IN THE
DESEGREGATION PLAN PUPILS FROM SCHOOL DISTRICTS OUTSIDE DETROIT WAS NOT
PREDICATED UPON ANY CONSTITUTIONAL VIOLATION INVOLVING THOSE SCHOOL
DISTRICTS.  BY APPROVING A REMEDY THAT WOULD REACH BEYOND THE LIMITS OF
THE CITY OF DETROIT TO CORRECT A CONSTITUTIONAL VIOLATION FOUND TO HAVE
OCCURRED SOLELY WITHIN THAT CITY THE COURT OF APPEALS THUS WENT BEYOND
THE GOVERNING EQUITABLE PRINCIPLES ESTABLISHED IN THIS COURT'S
DECISIONS. 

/1/  AS THIS COURT STATED IN BROWN V. BOARD OF EDUCATION, 349 U.S.
294, 300, "(EQUITY HAS BEEN CHARACTERIZED BY A PRACTICAL FLEXIBILITY IN
SHAPING ITS REMEDIES AND BY A FACILITY FOR ADJUSTING AND RECONCILING
PUBLIC AND PRIVATE NEEDS.  THESE (SCHOOL DESEGREGATION) CASES CALL FOR
THE EXERCISE OF THESE TRADITIONAL ATTRIBUTES OF EQUITY POWER." 

/2/  MY BROTHER MARSHALL SEEMS TO IGNORE THIS FUNDAMENTAL FACT WHEN
HE STATES, POST, AT 799, THAT "THE MOST ESSENTIAL FINDING (MADE BY THE
DISTRICT COURT) WAS THAT NEGRO CHILDREN IN DETROIT HAD BEEN CONFINED BY
INTENTIONAL ACTS OF SEGREGATION TO A GROWING CORE OF NEGRO SCHOOLS
SURROUNDED BY A RECEDING RING OF WHITE SCHOOLS."  THIS CONCLUSION IS
SIMPLY NOT SUBSTANTIATED BY THE RECORD PRESENTED IN THIS CASE.  THE
RECORD HERE DOES SUPPORT THE CLAIM MADE BY THE RESPONDENTS THAT WHITE
AND NEGRO STUDENTS WITHIN DETROIT WHO OTHERWISE WOULD HAVE ATTENDED
SCHOOL TOGETHER WERE SEPARATED BY ACTS OF THE STATE OR ITS
SUBDIVISION.  HOWEVER, SEGREGATIVE ACTS WITHIN THE CITY ALONE CANNOT BE
PRESUMED TO HAVE PRODUCED--AND NO FACTUAL SHOWING WAS MADE THAT THEY
DID PRODUCE--AN INCREASE IN THE NUMBER OF NEGRO STUDENTS IN THE CITY AS
A WHOLE.  IT IS THE ESSENTIAL FACT OF A PREDOMINANTLY NEGRO SCHOOL
POPULATION IN DETROIT--CAUSED BY UNKNOWN AND PERHAPS UNKNOWABLE FACTORS
SUCH AS IN-MIGRATION, BIRTH RATES, ECONOMIC CHANGES, OR CUMULATIVE ACTS
OF PRIVATE RACIAL FEARS--THAT ACCOUNTS FOR THE "GROWING CORE OF NEGRO
SCHOOLS," A "CORE" THAT HAS GROWN TO INCLUDE VIRTUALLY THE ENTIRE
CITY.  THE CONSTITUTION SIMPLY DOES NOT ALLOW FEDERAL COURTS TO ATTEMPT
TO CHANGE THAT SITUATION UNLESS AND UNTIL IT IS SHOWN THAT THE STATE,
OR ITS POLITICAL SUBDIVISIONS, HAVE CONTRIBUTED TO CAUSE THE SITUATION
TO EXIST.  NO RECORD HAS BEEN MADE IN THIS CASE SHOWING THAT THE RACIAL
COMPOSITION OF THE DETROIT SCHOOL POPULATION OR THAT RESIDENTIAL
PATTERNS WITHIN DETROIT AND IN THE SURROUNDING AREAS WERE IN ANY
SIGNIFICANT MEASURE CAUSED BY GOVERNMENTAL ACTIVITY, AND IT FOLLOWS
THAT THE SITUATION OVER WHICH MY DISSENTING BROTHERS EXPRESS CONCERN
CANNOT SERVE AS THE PREDICATE FOR THE REMEDY ADOPTED BY THE DISTRICT
COURT AND APPROVED BY THE COURT OF APPEALS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE COURT OF APPEALS HAS ACTED RESPONSIBLY IN THESE CASES AND WE
SHOULD AFFIRM ITS JUDGMENT.  THIS WAS THE FOURTH TIME THE CASE WAS
BEFORE IT OVER A SPAN OF LESS THAN THREE YEARS.  THE COURT OF APPEALS
AFFIRMED THE DISTRICT COURT ON THE ISSUE OF SEGREGATION AND ON THE
"DETROIT-ONLY" PLANS OF DESEGREGATION.  THE COURT OF APPEALS ALSO
APPROVED IN PRINCIPLE THE USE OF A METROPOLITAN AREA PLAN, VACATING AND
REMANDING ONLY TO ALLOW THE OTHER AFFECTED SCHOOL DISTRICTS TO BE
BROUGHT IN AS PARTIES, AND IN OTHER MINOR RESPECTS. 

WE HAVE BEFORE US TODAY NO PLAN FOR INTEGRATION.  THE ONLY ORDERS
ENTERED SO FAR ARE INTERLOCUTORY.  NO NEW PRINCIPLES OF LAW ARE
PRESENTED HERE.  METROPOLITAN TREATMENT OF METROPOLITAN PROBLEMS IS
COMMONPLACE.  IF THIS WERE A SEWAGE PROBLEM OR A WATER PROBLEM, OR AN
ENERGY PROBLEM, THERE CAN BE NO DOUBT THAT MICHIGAN WOULD STAY WELL
WITHIN FEDERAL CONSTITUTIONAL BOUNDS IF IT SOUGHT A METROPOLITAN
REMEDY.  IN BRADLEY V. SCHOOL BOARD OF CITY OF RICHMOND, 462 F.2D 1058,
AFF'D BY AN EQUALLY DIVIDED COURT, 412 U.S. 92, WE HAD A CASE INVOLVING
THE VIRGINIA SCHOOL SYSTEM WHERE LOCAL SCHOOL BOARDS HAD "EXCLUSIVE
JURISDICTION" OF THE PROBLEM, NOT "THE STATE BOARD OF EDUCATION," 462
F.2D,AT 1067.  HERE THE MICHIGAN EDUCATIONAL SYSTEM IS UNITARY,
MAINTAINED AND SUPPORTED BY THE LEGISLATURE AND UNDER THE GENERAL
SUPERVISION OF THE STATE BOARD OF EDUCATION.  /1/  THE STATE CONTROLS
THE BOUNDARIES OF SCHOOL DISTRICTS.  /2/  THE STATE SUPERVISES SCHOOL
SITE SELECTION.  /3/  THE CONSTRUCTION IS DONE THROUGH MUNICIPAL BONDS
APPROVED BY SEVERAL STATE AGENCIES.  /4/  EDUCATION IN MICHIGAN IS A
STATE PROJECT WITH VERY LITTLE COMPLETELY LOCAL CONTROL, /5/  EXCEPT
THAT THE SCHOOLS ARE FINANCED LOCALLY, NOT ON A STATEWIDE BASIS. 
INDEED THE PROPOSAL TO PUT SCHOOL FUNDING IN MICHIGAN ON A STATEWIDE
BASIS WAS DEFEATED AT THE POLLS IN NOVEMBER 1972.  /6/  YET THE SCHOOL
DISTRICTS BY STATE LAW ARE AGENCIES OF THE STATE.  /7/  STATE ACTION IS
INDEED CHALLENGED AS VIOLATING THE EQUAL PROTECTION CLAUSE.  WHATEVER
THE REACH OF THAT CLAIM MAY BE, IT CERTAINLY IS AIMED AT DISCRIMINATION
BASED ON RACE. 

THEREFORE AS THE COURT OF APPEALS HELD THERE CAN BE NO DOUBT THAT AS
A MATTER OF MICHIGAN LAW THE STATE ITSELF HAS THE FINAL SAY AS TO WHERE
AND HOW SCHOOL DISTRICT LINES SHOULD BE DRAWN.  /8/ 

WHEN WE RULE AGAINST THE METROPOLITAN AREA REMEDY WE TAKE A STEP
THAT WILL LIKELY PUT THE PROBLEMS OF THE BLACKS AND OUR SOCIETY BACK TO
THE PERIOD THAT ANTEDATED THE "SEPARATE BUT EQUAL" REGIME OF PLESSY V.
FERGUSON, 163 U.S. 537.  THE REASON IS SIMPLE. 

THE INNER CORE OF DETROIT IS NOW RATHER SOLIDLY BLACK; /9/  AND THE
BLACKS, WE KNOW, IN MANY INSTANCES ARE LIKELY TO BE POORER, /10/  JUST
AS WERE THE CHICANOS IN SAN ANTONIO SCHOOL DISTRICT V. RODRIGUEZ, 411
U.S. 1.  BY THAT DECISION THE POORER SCHOOL DISTRICTS /11/  MUST PAY
THEIR OWN WAY.  IT IS THEREOFRE A FOREGONE CONCLUSION THAT WE HAVE NOW
GIVEN THE STATES A FORMULA WHEREBY THE POOR MUST PAY THEIR OWN WAY. 
/12/ 

TODAY'S DECISION, GIVEN RODRIGUEZ, MEANS THAT THERE IS NO VIOLATION
OF THE EQUAL PROTECTION CLAUSE THOUGH THE SCHOOLS ARE SEGREGATED BY
RACE AND THOUGH THE BLACK SCHOOLS ARE NOT ONLY "SEPARATE" BUT
"INFERIOR." 

SO FAR AS EQUAL PROTECTION IS CONCERNED WE ARE NOW IN A DRAMATIC
RETREAT FROM THE 7-TO-1 DECISION IN 1869 THAT BLACKS COULD BE
SEGREGATED IN PUBLIC FACILITIES, PROVIDED THEY RECEIVED EQUAL
TREATMENT. 

AS I INDICATED IN KEYES V. SCHOOL DISTRICT NO. 1 DENVER, COLORADO,
413 U.S. 189, 214 - 217, THERE IS SO FAR AS THE SCHOOL CASES GO NO
CONSTITUTIONAL DIFFERENCE BETWEEN DE FACTO AND DE JURE SEGREGATION. 
EACH SCHOOL BOARD PERFORMS STATE ACTION FOR FOURTEENTH AMENDMENT
PURPOSES WHEN IT DRAWS THE LINES THAT CONFINE IT TO A GIVEN AREA, WHEN
IT BUILDS SCHOOLS AT PARTICULAR SITES, OR WHEN IT ALLOCATES STUDENTS. 
THE CREATION OF THE SCHOOL DISTRICTS IN METROPOLITAN DETROIT EITHER
MAINTAINED EXISTING SEGREGATION OR CAUSED ADDITIONAL SEGREGATION. 
RESTRICTIVE COVENANTS MAINTAINED BY STATE ACTION OR INACTION BUILD
BLACK GHETTOS.  IT IS STATE ACTION WHEN PUBLIC FUNDS ARE DISPENSED BY
HOUSING AGENCIES TO BUILD RACIAL GHETTOS.  WHERE A COMMUNITY IS
RACIALLY MIXED AND SCHOOL AUTHORITIES SEGREGATE SCHOOLS, OR ASSIGN
BLACK TEACHERS TO BLACK SCHOOLS OR CLOSE SCHOOLS, OR ASSIGN BLACK
TEACHERS TO BLACK SCHOOLS OR CLOSE SCHOOLS IN FRINGE AREAS AND BUILD
NEW SCHOOLS IN BLACK AREAS AND IN MORE DISTANT WHITE AREAS, THE STATE
CREATES AND NURTURES A SEGREGATED SCHOOL SYSTEM, JUST AS SURELY AS DID
THOSE STATES INVOLVED IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483,
WHEN THEY MAINTAINED DUAL SCHOOL SYSTEMS. 

ALL THESE CONDITIONS AND MORE WERE FOUND BY THE DISTRICT COURT TO
EXIST.  THE ISSUE IS NOT WHETHER THERE SHOULD BE RACIAL BALANCE BUT
WHETHER THE STATE'S USE OF VARIOUS DEVICES THAT END UP WITH BLACK
SCHOOLS AND WHITE SCHOOLS BROUGHT THE EQUAL PROTECTION CLAUSE INTO
EFFECT.  GIVEN THE STATE'S CONTROL OVER THE EDUCATIONAL SYSTEM IN
MICHIGAN, THE FACT THAT THE BLACK SCHOOLS ARE IN ONE DISTRICT AND THE
WHITE SCHOOLS ARE IN ANOTHER IS NOT CONTROLLING-EITHER CONSTITUTIONALLY
OR EQUITABLY.  /13/  NO SPECIFIC PLAN HAS YET BEEN ADOPTED.  WE ARE
STILL AT AN INTERLOCUTORY STAGE OF A LONG DRAWN-OUT JUDICIAL EFFORT AT
SCHOOL DESEGREGATION.  IT IS CONCEIVABLE THAT GHETTOS DEVELOP ON THEIR
OWN WITHOUT ANY HINT OF STATE ACTION.  BUT SINCE MICHIGAN BY ONE DEVICE
OR ANOTHER HAS OVER THE YEARS CREATED BLACK SCHOOL DISTRICTS AND WHITE
SCHOOL DISTRICTS, THE TASK OF EQUITY IS TO PROVIDE A UNITARY SYSTEM FOR
THE AFFECTED AREA WHERE, AS HERE, THE STATE WASHES ITS HANDS OF ITS OWN
CREATIONS. 

*#DFN 

/1/  MICH. CONST., ART. 8, 2, 3. 

/2/  SEE 484 F.2D 215, 247 - 248; MICH. COMP. LAWS 340.402, 340.431,
340.447, 388.681 (1970). 

/3/  MICH. COMP. LAWS 388.851 (1948), AS AMENDED BY ACT 231, MICH.
PUB. ACTS OF 1949, AND ACT 175, MICH. PUB. ACTS 1962. 

/4/  SEE MICH. COMP. LAWS 132.1 AND 132.2 (1970); 3 APP. 157. 

/5/  SEE 484 F.2D,AT 248 - 249. 

/6/  SEE DETROIT FREE PRESS, NOV. 8, 1972, P. 1A, COL. 3.  MICHIGAN
HAS RECENTLY PASSED LEGISLATION WHICH COULD ELIMINATE SOME, BUT NOT
ALL, OF THE INEQUITIES IN SCHOOL FINANCING.  SEE ACT 101, MICH. PUB.
ACTS OF 1973. 

/7/  SEE 484 F.2D,AT 246 - 247; MICH. CONST. ART. 8, 2, 3. 

/8/  SEE N. 2, SUPRA. 

/9/  A TREMENDOUS CHANGE HAS OCCURRED IN THE DISTRIBUTION OF THIS
COUNTRY'S BLACK POPULATION SINCE WORLD WAR I. SEE HAUSER, DEMOGRAPHIC
FACTORS IN THE INTEGRATION OF THE NEGRO, DAEDALUS 847 - 877 (FALL
1965).  IN 1910, 73% OF ALL BLACKS LIVED ON FARMS AND IN RURAL AREAS;
BY 1960, 73% LIVED IN URBAN AREAS, MAINLY IN THE LARGEST METROPOLITAN
AREAS.  MOREOVER, DUE TO THE FACT THAT THE BLACK POPULATION IS YOUNGER
THAN THE WHITE POPULATION, THE CONCENTRATION OF BLACKS IN THE CITIES IS
EVEN MORE PRONOUNCED FOR THE SCHOOL-AGE POPULATION.  THE PATTERN OF
CHANGE WHICH HAS EXISTED SINCE WORLD WAR I IS CONTINUING, AND HENCE THE
PROPORTION OF BLACKS IN THE URBAN NORTH AND WEST WILL CONTINUE TO
INCREASE.  DEPT. OF HEALTH, EDUCATION, AND WELFARE, J. COLEMAN ET AL.,
EQUALITY OF EDUCATIONAL OPPORTUNITY 39 - 10 (1966). 

/10/  "THERE ARE SOME DEFINITE AND SYSTEMATIC DIRECTIONS OF
DIFFERENCE BETWEEN THE SCHOOLS ATTENDED BY MINORITIES AND THOSE
ATTENDED BY THE MAJORITY.  IT APPEARS TO BE IN THE MOST ACADEMICALLY
RELATED AREAS THAT THE SCHOOLS OF MINORITY PUPILS SHOW THE MOST
CONSISTENT DEFICIENCIES."  DEPT. OF HEALTH, EDUCATION, AND WELFARE,
COLEMAN ET AL., SUPRA, N. 9, AT 120. 

/11/  THAT SOME SCHOOL DISTRICTS ARE MARKEDLY POORER THAN OTHERS IS
BEYOND QUESTION.  THE CALIFORNIA SUPREME COURT HAS NOTED THAT PER-PUPIL
EXPENDITURES IN TWO DIFFERENT DISTRICTS--BOTH LOCATED IN THE SAME
COUNTY--WERE $2,223 AND $616.  SERRANO V. PRIEST, 5 CAL.3D 584, 600 N.
15, 487 P.2D 1241, 1252 N. 15 (1971).  IN NEW YORK THE FLEISCHMANN
COMMISSION REPORTED THAT THE TWO LONG ISLAND DISTRICTS OF GREAT NECK
AND LEVITTOWN SPENT $2,078 AND $1,189 RESPECTIVELY PER PUPIL.  1 NEW
YORK STATE COMMISSION ON THE QUALITY, COST, AND FINANCING OF ELEMENTARY
AND SECONDARY EDUCATION, FLEISCHMANN REPORT 58 (1973).  "A FURTHER
GLARING INEQUITY RESULTING FROM THE CURRENT SYSTEMS OF SCHOOL FINANCE
IS THAT VARIATIONS IN PER PUPIL EXPENDITURES AMONG SCHOOL DISTRICTS,
TEND TO BE INVERSELY RELATED TO EDUCATIONAL NEED.  CITY STUDENTS, WITH
GREATER THAN AVERAGE EDUCATIONAL DEFICIENCIES, CONSISTENTLY HAVE LESS
MONEY SPENT ON THEIR EDUCATION AND HAVE HIGHER PUPIL/TEACHER RATIOS
THAN DO THEIR HIGH-INCOME COUNTERPARTS IN THE FAVORED SCHOOLS OF
SUBURBIA."  GLICKSTEIN & WANT, INEQUALITY IN SCHOOL FINANCING:  THE
ROLE OF THE LAW, 25 STAN.L.REV.  335, 338 (1973). 

/12/  CITIES FACE AN ESPECIALLY DIFFICULT PROBLEM IN PAYING THE COST
OF EDUCATION, SINCE THEY HAVE THE "MUNICIPAL OVERBURDEN" WHICH RESULTS
FROM GREATER COSTS FOR HEALTH, PUBLIC SAFETY, SANITATION, PUBLIC WORKS,
TRANSPORTATION, PUBLIC WELFARE, PUBLIC HOUSING, AND RECREATION. 
BECAUSE OF MUNICIPAL OVERBURDEN, CITIES ON THE AVERAGE DEVOTE ONLY
ABOUT 30 PERCENT OF THEIR BUDGETS TO THEIR SCHOOLS.  THIS COMPARES WITH
THE OVER 50 PERCENT WHICH IS SPENT ON SCHOOLS BY THE SUBURBS.  J. BERKE
& J. CALLAHAN, INEQUITIES IN SCHOOL FINANCE (1971), REPRINTED IN SENATE
SELECT COMMITTEE ON EQUAL EDUCATIONAL OPPORTUNITY, 92D CONG., 2D SESS.,
REPORT ON ISSUES IN SCHOOL FINANCE 129, 142 (COMM. PRINT 1972); SEE
GLICKSTEIN & WANT, SUPRA, N. 11, AT 387.     /13/  MR. JUSTICE STEWART
INDICATES THAT EQUITABLE FACTORS WEIGH IN FAVOR OF LOCAL SCHOOL CONTROL
AND THE AVOIDANCE OF ADMINISTRATIVE DIFFICULTY GIVEN THE LACK OF AN
"INTERDISTRICT" VIOLATION.  ANTE, AT 755.  IT WOULD SEEM TO ME THAT THE
EQUITIES ARE STRONGER IN FAVOR OF THE CHILDREN OF DETROIT WHO HAVE BEEN
DEPRIVED OF THEIR CONSTITUTIONAL RIGHT TO EQUAL TREATMENT BY THE STATE
OF MICHIGAN. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

THE DISTRICT COURT AND THE COURT OF APPEALS FOUND THAT OVER A LONG
PERIOD OF YEARS THOSE IN CHARGE OF THE MICHIGAN PUBLIC SCHOOLS ENGAGED
IN VARIOUS PRACTICES CALCULATED TO EFFECT THE SEGREGATION OF THE
DETROIT SCHOOL SYSTEM.  THE COURT DOES NOT QUESTION THESE FINDINGS, NOR
COULD IT REASONABLY DO SO.  NEITHER DOES IT QUESTION THE OBLIGATION OF
THE FEDERAL COURTS TO DEVISE A FEASIBLE AND EFFECTIVE REMEDY.  BUT IT
PROMPTLY CRIPPLES THE ABILITY OF THE JUDICIARY TO PERFORM THIS TASK,
WHICH IS OF FUNDAMENTAL IMPORTANCE TO OUR CONSTITUTIONAL SYSTEM, BY
FASHIONING A STRICT RULE THAT REMEDIES IN SCHOOL CASES MUST STOP AT THE
SCHOOL DISTRICT LINE UNLESS CERTAIN OTHER CONDITIONS ARE MET.  AS
APPLIED HERE, THE REMEDY FOR UNQUESTIONED VIOLATIONS OF THE EQUAL
PROTECTION RIGHTS OF DETROIT'S NEGROES BY THE DETROIT SCHOOL BOARD AND
THE STATE OF MICHIGAN MUST BE TOTALLY CONFINED TO THE LIMITS OF THE
SCHOOL DISTRICT AND MAY NOT REACH INTO ADJOINING OR SURROUNDING
DISTRICTS UNLESS AND UNTIL IT IS PROVED THERE HAS BEEN SOME SORT OF
"INTERDISTRICT VIOLATION"--UNLESS UNCONSTITUTIONAL ACTIONS OF THE
DETROIT SCHOOL BOARD HAVE HAD A SEGREGATIVE IMPACT ON OTHER DISTRICTS,
OR UNLESS THE SEGREGATED CONDITION OF THE DETROIT SCHOOLS HAS ITSELF
BEEN INFLUENCED BY SEGREGATIVE PRACTICES IN THOSE SURROUNDING DISTRICTS
INTO WHICH IT IS PROPOSED TO EXTEND THE REMEDY. 

REGRETFULLY, AND FOR SEVERAL REASONS, I CAN JOIN NEITHER THE COURT'S
JUDGMENT NOR ITS OPINION.  THE CORE OF MY DISAGREEMENT IS THAT
DELIBERATE ACTS OF SEGREGATION AND THEIR CONSEQUENCES WILL GO
UNREMEDIED, NOT BECAUSE A REMEDY WOULD BE INFEASIBLE OR UNREASONABLE IN
TERMS OF THE USUAL CRITERIA GOVERNING SCHOOL DESEGREGATION CASES, BUT
BECAUSE AN EFFECTIVE REMEDY WOULD CAUSE WHAT THE COURT CONSIDERS TO BE
UNDUE ADMINISTRATIVE INCONVENIENCE TO THE STATE.  THE RESULT IS THAT
THE STATE OF MICHIGAN, THE ENTITY AT WHICH THE FOURTEENTH AMENDMENT IS
DIRECTED, HAS SUCCESSFULLY INSULATED ITSELF FROM ITS DUTY TO PROVIDE
EFFECTIVE DESEGREGATION REMEDIES BY VESTING SUFFICIENT POWER OVER ITS
PUBLIC SCHOOLS IN ITS LOCAL SCHOOL DISTRICTS.  IF THIS IS THE CASE IN
MICHIGAN, IT WILL BE THE CASE IN MOST STATES. 

THERE ARE UNDOUBTED PRACTICAL AS WELL AS LEGAL LIMITS TO THE
REMEDIAL POWERS OF FEDERAL COURTS IN SCHOOL DESEGREGATION CASES.  THE
COURT HAS MADE IT CLEAR THAT THE ACHIEVEMENT OF ANY PARTICULAR DEGREE
OF RACIAL BALANCE IN THE SCHOOL SYSTEM IS NOT REQUIRED BY THE
CONSTITUTION; NOR MAY IT BE THE PRIMARY FOCUS OF A COURT IN DEVISING AN
ACCEPTABLE REMEDY FOR DE JURE SEGREGATION. 

A VARIETY OF PROCEDURES AND TECHNIQUES ARE AVAILABLE TO A DISTRICT
COURT ENGROSSED IN FASHIONING REMEDIES IN A CASE SUCH AS THIS; BUT THE
COURTS MUST KEEP IN MIND THAT THEY ARE DEALING WITH THE PROCESS OF
EDUCATING THE YOUNG, INCLUDING THE VERY YOUNG.  THE TASK IS NOT TO
DEVISE A SYSTEM OF PAINS AND PENALTIES TO PUNISH CONSTITUTIONAL
VIOLATION BROUGHT TO LIGHT.  RATHER, IT IS TO DESEGREGATE AN
EDUCATIONAL SYSTEM IN WHICH THE RACES HAVE BEEN KEPT APART, WITHOUT, AT
THE SAME TIME, LOSING SIGHT OF THE CENTRAL EDUCATIONAL FUNCTION OF THE
SCHOOLS. 

VIEWED IN THIS LIGHT, REMEDIES CALLING FOR SCHOOL ZONING, PAIRING,
AND PUPIL ASSIGNMENTS, BECOME MORE AND MORE SUSPECT AS THEY REQUIRE
THAT SCHOOLCHILDREN SPEND MORE AND MORE TIME IN BUSES GOING TO AND FROM
SCHOOL AND THAT MORE AND MORE EDUCATIONAL DOLLARS BE DIVERTED TO
TRANSPORTATION SYSTEMS.  MANIFESTLY, THESE CONSIDERATIONS ARE OF
IMMEDIATE AND URGENT CONCERN WHEN THE ISSUE IS THE DESEGREGATION OF A
CITY SCHOOL SYSTEM WHERE RESIDENTIAL PATTERNS ARE PREDOMINANTLY
SEGREGATED AND THE RESPECTIVE AREAS OCCUPIED BY BLACKS AND WHITES ARE
HEAVILY POPULATED AND GEOGRAPHICALLY EXTENSIVE.  THUS, IF ONE
POSTULATES A METROPOLITAN SCHOOL SYSTEM COVERING A SUFFICIENTLY LARGE
AREA, WITH THE POPULATION EVENLY DIVIDED BETWEEN WHITE AND NEGROES AND
WITH THE RACES OCCUPYING IDENTIFIABLE RESIDENTIAL AREAS, THERE WILL BE
VERY REAL PRACTICAL LIMITS ON THE EXTENT TO WHICH RACIALLY IDENTIFIABLE
SCHOOLS CAN BE ELIMINATED WITHIN THE SCHOOL DISTRICT.  IT IS ALSO
APPARENT THAT THE LARGER THE PROPORTION OF NEGROES IN THE AREA, THE
MORE DIFFICULT IT WOULD BE TO AVOID HAVING A SUBSTANTIAL NUMBER OF ALL
BLACK OR NEARLY ALL BLACK SCHOOLS. 

THE DETROIT SCHOOL DISTRICT IS BOTH LARGE AND HEAVILY POPULATED.  IT
COVERS 139.6 SQUARE MILES, ENCIRCLES TWO ENTIRELY SEPARATE CITIES AND
SCHOOL DISTRICTS, AND SURROUNDS A THIRD CITY ON THREE SIDES. 

ALSO, WHITES AND NEGROES LIVE IN IDENTIFIABLE AREAS IN THE CITY. 
THE 1970 PUBLIC SCHOOL ENROLLMENT IN THE CITY SCHOOL DISTRICT TOTALED
289,763 AND WAS 63.6% NEGRO AND 34.8% WHITE.  /1/  IF "RACIAL BALANCE"
WERE ACHIEVED IN EVERY SCHOOL IN THE DISTRICT, EACH SCHOOL WOULD BE
APPROXIMATELY 64% NEGRO.  A REMEDY CONFINED TO THE DISTRICT COULD
ACHIEVE NO MORE DESEGREGATION.  FURTHERMORE, THE PROPOSED INTRACITY
REMEDIES WERE BESET WITH PRACTICAL PROBLEMS.  NONE OF THE PLANS LIMITED
TO THE SCHOOL DISTRICT WAS SATISFACTORY TO THE DISTRICT COURT.  THE
MOST PROMISING PROPOSAL, SUBMITTED BY RESPONDENTS, WHO WERE THE
PLAINTIFFS IN THE DISTRICT COURT, WOULD "LEAVE MANY OF ITS SCHOOLS 75
TO 90 PER CENT BLACK."  484 F.2D 215, 244 (CA6 1973).  /2/
TRANSPORTATION ON A "VAST SCALE"  WOULD BE REQUIRED; 900 BUSES WOULD
HAVE TO BE PURCHASED FOR THE TRANSPORTATION OF PUPILS WHO ARE NOT NOW
BUSED.  ID., AT 243.  THE DISTRICT COURT ALSO FOUND THAT THE PLAN
"WOULD CHANGE A SCHOOL SYSTEM WHICH IS NOW BLACK AND WHITE TO ONE THAT
WOULD BE PERCEIVED AS BLACK, THEREBY INCREASING THE FLIGHT OF WHITES
FROM THE CITY AND THE SYSTEM, THEREBY INCREASING THE BLACK STUDENT
POPULATION."  ID., AT 244.  FOR THE DISTRICT COURT, "(THE CONCLUSION,
UNDER THE EVIDENCE IN THIS CASE, IS INESCAPABLE THAT RELIEF OF
SEGREGATION IN THE PUBLIC SCHOOLS OF THE CITY OF DETROIT CANNOT BE
ACCOMPLISHED WITHIN THE CORPORATE GEOGRAPHICAL LIMITS OF THE CITY." 
IBID. 

THE DISTRICT COURT THEREFORE CONSIDERED EXTENDING ITS REMEDY TO THE
SUBURBS.  AFTER HEARINGS, IT CONCLUDED THAT A MUCH MORE EFFECTIVE
DESEGREGATION PLAN COULD BE IMPLEMENTED IF THE SUBURBAN DISTRICTS WERE
INCLUDED.  IN PROCEEDING TO DESIGN ITS PLAN ON THE BASIS THAT STUDENT
BUS RIDES TO AND FROM SCHOOL SHOULD NOT EXCEED 40 MINUTES EACH WAY AS A
GENERAL MATTER, THE COURT'S EXPRESS FINDING WAS THAT "(FOR ALL THE
REASONS STATED HERETOFORE--INCLUDING TIME, DISTANCE, AND TRANSPORTATION
FACTORS--DESEGREGATION WITHIN THE AREA DESCRIBED IS PHYSICALLY EASIER
AND MORE PRACTICABLE AND FEASIBLE, THAN DESEGREGATION EFFORTS LIMITED
TO THE CORPORATE GEOGRAPHIC LIMITS OF THE CITY OF DETROIT."  345
F.SUPP.  914, 930 (ED MICH. 1972). 

THE COURT OF APPEALS AGREED WITH THE DISTRICT COURT THAT THE REMEDY
MUST EXTEND BEYOND THE CITY LIMITS OF DETROIT.  IT CONCLUDED THAT "(IN
THE INSTANT CASE THE ONLY FEASIBLE DESEGREGATION PLAN INVOLVES THE
CROSSING OF THE BOUNDARY LINES BETWEEN THE DETROIT SCHOOL DISTRICT AND
ADJACENT OR NEARBY SCHOOL DISTRICTS FOR THE LIMITED PURPOSE OF
PROVIDING AN EFFECTIVE DESEGREGATION PLAN."  484 F.2D, AT 249.  IT ALSO
AGREED THAT "ANY DETROIT ONLY DESEGREGATION PLAN WILL LEAD DIRECTLY TO
SINGLE SEGREGATED DETROIT SCHOOL DISTRICT OVERWHELMINGLY BLACK IN ALL
OF ITS SCHOOLS, SURROUNDED BY A RING OF SUBURBS AND SUBURBAN SCHOOL
DISTRICTS OVERWHELMINGLY WHITE IN COMPOSITION IN A STATE IN WHICH THE
RACIAL COMPOSITION IS 87 PER CENT WHITE AND 13 PER CENT BLACK."  IBID.
THERE WAS "MORE THAN AMPLE SUPPORT FOR THE DISTRICT JUDGE'S FINDINGS OF
UNCONSTITUTIONAL SEGREGATION BY RACE RESULTING IN MAJOR PART FROM
ACTION AND INACTION OF PUBLIC AUTHORITIES, BOTH LOCAL AND STATE.  . ..
UNDER THIS RECORD A REMEDIAL ORDER OVERWHELMINGLY BLACK (FOR THE
FORESEEABLE FUTURE) SURROUNDED BY SUBURBAN SCHOOL SYSTEMS
OVERWHELMINGLY WHITE CANNOT CORRECT THE CONSTITUTIONAL VIOLATIONS
HEREIN FOUND."  ID., AT 250.  TO CONCLUDE OTHERWISE, THE COURT OF
APPEALS ANNOUNCED, WOULD CALL UP "HAUNTING MEMORIES OF THE NOW LONG
OVERRULED AND DISCREDITED 'SEPARATE BUT EQUAL DOCTRINE'  OF PLESSY V.
FERGUSON, 163 U.S. 537.  . .(1896)," AND "WOULD BE OPENING A WAY TO
NULLIFY BROWN V. BOARD OF EDUCATION WHICH OVERRULED PLESSY.  . .."  484
F.2D,AT 249. 

THIS COURT NOW REVERSES THE COURT OF APPEALS.  IT DOES NOT QUESTION
THE DISTRICT COURT'S FINDINGS THAT ANY FEASIBLE DETROIT-ONLY PLAN WOULD
LEAVE MANY SCHOOLS 75 TO 90 PERCENT BLACK AND THAT THE DISTRICT WOULD
BECOME PROGRESSIVELY MORE BLACK AS WHITES LEFT THE CITY.  NEITHER DOES
THE COURT SUGGEST THAT INCLUDING THE SUBURBS IN A DESEGREGATION PLAN
WOULD BE IMPRACTICAL OR INFEASIBLE BECAUSE OF THE LENGTH OF THEIR
RIDES.  INDEED, THE COURT LEAVES UNCHALLENGED THE DISTRICT COURT'S
CONCLUSION THAT A PLAN INCLUDING THE SUBURBS WOULD BE PHYSICALLY EASIER
AND MORE PRACTICAL AND FEASIBLE THAN A DETROIT-ONLY PLAN.  WHEREAS THE
MOST PROMISING DETROIT-ONLY PLAN, FOR EXAMPLE, WOULD HAVE ENTAILED THE
PURCHASE OF 900 BUSES, THE METROPOLITAN PLAN WOULD INVOLVE THE
ACQUISITION OF NO MORE THAN 350 NEW VEHICLES. 

DESPITE THE FACT THAT A METROPOLITAN REMEDY, IF THE FINDINGS OF THE
DISTRICT COURT ACCEPTED BY THE COURT OF APPEALS ARE TO BE CREDITED,
WOULD MORE EFFECTIVELY DESEGREGATE THE DETROIT SCHOOLS, WOULD PREVENT
RESEGREGATION, /3/  AND WOULD BE EASIER AND MORE FEASIBLE FROM MANY
STANDPOINTS, THE COURT FASHIONS OUT OF WHOLE CLOTH AN ARBITRARY RULE
THAT REMEDIES FOR CONSTITUTIONAL VIOLATIONS OCCURRING IN A SINGLE
MICHIGAN SCHOOL DISTRICT MUST STOP AT THE SCHOOL DISTRICT LINE. 
APPARENTLY, NO MATTER HOW MUCH LESS BURDENSOME OR MORE EFFECTIVE AND
EFFICIENT IN MANY RESPECTS, SUCH AS TRANSPORTATION, THE METROPOLITAN
PLAN MIGHT BE, THE SCHOOL DISTRICT LINE MAY NOT BE CROSSED.  OTHERWISE,
IT SEEMS THERE WOULD BE TOO MUCH DISRUPTION OF THE MICHIGAN SCHEME FOR
MANAGING ITS EDUCATIONAL SYSTEM, TOO MUCH CONFUSION, AND TOO MUCH
ADMINISTRATIVE BURDEN. 

THE DISTRICT COURT, ON THE SCENE AND FAMILIAR WITH LOCAL CONDITIONS,
HAD WHOLLY DIFFERENT VIEW.  THE COURT OF APPEALS ALSO ADDRESSED ITSELF
AT LENGTH TO MATTERS OF LOCAL LAW AND TO THE PROBLEMS THAT
INTERDISTRICT REMEDIES MIGHT PRESENT TO THE STATE OF MICHIGAN.  ITS
CONCLUSION, FLATLY CONTRARY TO THAT OF THIS COURT, WAS THAT "THE
CONSTITUTIONAL RIGHT TO EQUALITY BEFORE THE LAW (IS NOT) HEMMED IN BY
THE BOUNDARIES OF A SCHOOL DISTRICT" AND THAT AN INTERDISTRICT REMEDY 

"IS SUPPORTED BY THE STATUS OF SCHOOL DISTRICTS UNDER MICHIGAN LAW
AND BY THE HISTORICAL CONTROL EXERCISED OVER LOCAL SCHOOL DISTRICTS BY
THE LEGISLATURE OF MICHIGAN AND BY STATE AGENCIES AND OFFICIALS.  . ..
(IT IS WELL ESTABLISHED UNDER THE CONSTITUTION AND LAWS OF MICHIGAN
THAT THE PUBLIC SCHOOL SYSTEM IS A STATE FUNCTION AND THAT LOCAL SCHOOL
DISTRICTS ARE INSTRUMENTALITIES OF THE STATE CREATED FOR ADMINISTRATIVE
CONVENIENCE."  /4/  484 F.2D,AT 245 - 246. 

I AM SURPRISED THAT THE COURT, SITTING AT THIS DISTANCE FROM THE
STATE OF MICHIGAN, CLAIMS BETTER INSIGHT THAN THE COURT OF APPEALS AND
THE DISTRICT COURT AS TO WHETHER AN INTERDISTRICT REMEDY FOR EQUAL
PROTECTION VIOLATIONS PRACTICED BY THE STATE OF MICHIGAN WOULD INVOLVE
UNDUE DIFFICULTIES FOR THE STATE OF MICHIGAN WOULD INVOLVE UNDUE
DIFFICULTIES FOR THE STATE IN THE MANAGEMENT OF ITS PUBLIC SCHOOLS.  IN
THE AREA OF WHAT CONSTITUTES AN ACCEPTABLE DESEGREGATION PLAN, "WE MUST
OF NECESSITY RELY TO A LARGE EXTENT, AS THIS COURT HAS FOR MORE THAN 16
YEARS, ON THE INFORMED JUDGMENT OF THE DISTRICT COURTS IN THE FIRST
INSTANCE AND ON COURTS OF APPEALS."  SWANN V. CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION, 402 U.S. 1, 28 (1971).  OBVIOUSLY, WHATEVER
DIFFICULTIES THERE MIGHT BE, THEY ARE SURMOUNTABLE; FOR THE COURT
ITSELF CONCEDES THAT HAD THERE BEEN SUFFICIENT EVIDENCE ON AN
INTERDISTRICT VIOLATION, THE DISTRICT COURT COULD HAVE FASHIONED A
SINGLE REMEDY FOR THE DISTRICTS IMPLICATED RATHER THAN A DIFFERENT
REMEDY FOR EACH DISTRICT IN WHICH THE VIOLATION HAD OCCURRED OR HAD AN
IMPACT. 

I AM EVEN MORE MYSTIFIED AS TO HOW THE COURT CAN IGNORE THE LEGAL
REALITY THAT THE CONSTITUTIONAL VIOLATIONS, EVEN IF OCCURRING LOCALLY,
WERE COMMITTED BY GOVERNMENTAL ENTITIES FOR WHICH THE STATE IS
RESPONSIBLE AND THAT IT IS THE STATE THAT MUST RESPOND TO THE COMMAND
OF THE FOURTEENTH AMENDMENT.  AN INTERDISTRICT REMEDY FOR THE
INFRINGEMENTS THAT OCCURRED IN THIS CASE IS WELL WITHIN THE CONFINES
AND POWERS OF THE STATE, WHICH IS THE GOVERNMENTAL ENTITY ULTIMATELY
RESPONSIBLE FOR DESEGREGATING ITS SCHOOLS.  THE MICHIGAN SUPREME COURT
HAS OBSERVED THAT "(THE SCHOOL DISTRICT IS A STATE AGENCY,"  ATTORNEY
GENERAL EX REL. KIES V. LOWREY, 131 MICH. 639, 644, 92 N.W. 289, 290
(1902), AND THAT "'(EDUCATION IN MICHIGAN BELONGS TO THE STATE.  IT IS
NO PART OF THE LOCAL SELF-GOVERMENT INHERENT IN THE TOWNSHIP OR
MUNICIPALITY, EXCEPT SO FAR AS THE LEGISLATURE MAY CHOOSE TO MAKE IT
SUCH.  THE CONSTITUTION HAS TURNED THE WHOLE SUBJECT OVER TO THE
LEGISLATURE.  . ..'"  ATTORNEY GENERAL EX REL. ZACHARIAS V. DETROIT
BOARD OF EDUCATION, 154 MICH. 584, 590, 118 N.W. 606, 609 (1908). 
IT IS UNNECESSARY TO CATALOGUE AT LENGTH THE VARIOUS PUBLIC MISDEEDS
FOUND BY THE DISTRICT COURT AND THE COURT OF APPEALS TO HAVE
CONTRIBUTED TO THE PRESENT SEGREGATION OF THE DETROIT PUBLIC SCHOOLS. 
THE LEGISLATURE CONTRIBUTED DIRECTLY BY ENACTING A STATUTE OVERRIDING A
PARTIAL HIGH SCHOOL DESEGREGATION PLAN VOLUNTARILY ADOPTED BY THE
DETROIT BOARD OF EDUCATION.  INDIRECTLY THE TRIAL COURT FOUND THE STATE
WAS ACCOUNTABLE FOR THE THINLY DISGUISED, PERVASIVE ACTS OF SEGREGATION
COMMITTED BY THE DETROIT BOARD, /5/  FOR DETROIT'S SCHOOL CONSTRUCTION
PLANS THAT WOULD PROMOTE SEGREGATION, AND FOR THE DETROIT SCHOOL
DISTRICT'S NOT HAVING FUNDS FOR PUPIL TRANSPORTATION WITHIN THE
DISTRICT.  THE STATE WAS ALSO CHARGEABLE WITH RESPONSIBILITY FOR THE
TRANSPORTATION OF NEGRO HIGH SCHOOL STUDENTS IN THE LATE 1950'S FROM
THE SUBURBAN FERNDALE SCHOOL DISTRICT, PAST CLOSER SUBURBAN AND DETROIT
HIGH SCHOOLS WITH PREDOMINANTLY WHITE STUDENT BODIES, TO A
PREDOMINANTLY NEGRO HIGH SCHOOL WITHIN DETROIT.  SWANN V. CHARLOTTE
MECHLENBURG BOARD OF EDUCATION, SUPRA, AT 20 - 21, AND KEYES V. SCHOOL
DISTRICT NO. 1, DENVER, COLORADO, 413 U.S. 189 (1973), MAKE ABUNDANTLY
CLEAR THAT THE TACTICS EMPLOYED BY THE DETROIT BOARD OF EDUCATION, A
LOCAL INSTRUMENTALITY OF THE STATE, VIOLATED THE CONSTITUTIONAL RIGHTS
OF THE NEGRO STUDENTS IN DETROIT'S PUBLIC SCHOOLS AND REQUIRED
EQUITABLE RELIEF SUFFICIENT TO ACCOMPLISH THE MAXIMUM, PRACTICAL
DESEGREGATION WITHIN THE POWER OF THE POLITICAL BODY AGAINST WHICH THE
FOURTEENTH AMENDMENT DIRECTS ITS PROSCRIPTIONS.  NO "STATE" MAY DENY
ANY INDIVIDUAL THE EQUAL PROTECTION OF THE LAWS; AND IF THE
CONSTITUTION AND THE SUPREMACY CLAUSE ARE TO HAVE ANY SUBSTANCE AT ALL,
THE COURTS MUST BE FREE TO DEVISE WORKABLE REMEDIES AGAINST THE
POLITICAL ENTITY WITH THE EFFECTIVE POWER TO DETERMINE LOCAL CHOICE. 
IT IS ALSO THE CASE HERE THAT THE STATE'S LEGISLATIVE INTERDICTION OF
DETROIT'S VOLUNTARY EFFORT TO DESEGREGATE ITS SCHOOL SYSTEM WAS
UNCONSTITUTIONAL.  SEE NORTH CAROLINA STATE BOARD OF EDUCATION V.
SWANN, 402 U.S. 43 (1971). 

THE COURT DRAWS THE REMEDIAL LINE AT THE DETROIT SCHOOL DISTRICT
BOUNDARY, EVEN THOUGH THE FOURTEENTH AMENDMENT IS ADDRESSED TO THE
STATE AND EVEN THOUGH THE STATE DENIES EQUAL PROTECTION OF THE LAWS
WHEN ITS PUBLIC AGENCIES, ACTING IN ITS BEHALF, INVIDIOUSLY
DISCRIMINATE.  THE STATE'S DEFAULT IS "THE CONDITION THAT OFFENDS THE
CONSTITUTION,"  SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION,
SUPRA, AT 16, AND STATE OFFICIALS MAY THEREFORE BE ORDERED TO TAKE THE
NECESSARY MEASURES TO COMPLETELY ELIMINATE FROM THE DETROIT PUBLIC
SCHOOLS "ALL VESTIGES OF STATE-IMPOSED SEGREGATION."  ID., AT 15.  I
CANNOT UNDERSTAND, NOR DOES THE MAJORITY SATISFACTORILY EXPLAIN, WHY A
FEDERAL COURT MAY NOT ORDER AN APPROPRIATE INTERDISTRICT REMEDY, IF
THIS IS NECESSARY OR MORE EFFECTIVE TO ACCOMPLISH THIS CONSTITUTIONALLY
MANDATED TASK.  AS THE COURT UNANIMOUSLY OBSERVED IN SWANN:  "ONCE A
RIGHT AND A VIOLATION HAVE BEEN SHOWN, THE SCOPE OF A DISTRICT COURT'S
EQUITABLE POWERS TO REMEDY PAST WRONGS IS BROAD, FOR BREADTH AND
FLEXIBILITY ARE INHERENT IN EQUITABLE REMEDIES."  IBID.  IN THIS CASE,
BOTH THE RIGHT AND THE STATE'S FOURTEENTH AMENDMENT VIOLATION HAVE
CONCEDELY BEEN FULLY ESTABLISHED, AND THERE IS NO ACCEPTABLE REASON FOR
PERMITTING THE PARTY RESPONSIBLE FOR THE CONSTITUTIONAL VIOLATION TO
CONTAIN THE REMEDIAL POWERS OF THE FEDERAL COURT WITHIN ADMINISTRATIVE
BOUNDARIES OVER WHICH THE TRANSGRESSOR ITSELF HAS PLENARY POWER. 

THE UNWAVERING DECISIONS OF THIS COURT OVER THE PAST 20 YEARS
SUPPORT THE ASSUMPTION OF THE COURT OF APPEALS THAT THE DISTRICT
COURT'S REMEDIAL POWER DOES NOT CEASE AT THE SCHOOL DISTRICT LINE.  THE
COURT'S FIRST FORMULATION OF THE REMEDIAL PRINCIPLES TO BE FOLLOWED IN
DISESTABLISHING RACIALLY DISCRIMINATORY SCHOOL SYSTEMS RECOGNIZED THE
VARIETY OF PROBLEMS ARISING FROM DIFFERENT LOCAL SCHOOL CONDITIONS AND
THE NECESSITY FOR THAT "PRACTICAL FLEXIBILITY"  TRADITIONALLY
ASSOCIATED WITH COURTS OF EQUITY.  BROWN V. BOARD OF EDUCATION, 349
U.S. 294, 299 - 301 (1955) (BROWN II).  INDEED, THE DISTRICT COURTS TO
WHICH THE BROWN CASES WERE REMANDED FOR THE FORMULATION OF REMEDIAL
DECREES WERE SPECIFICALLY INSTRUCTED THAT THEY MIGHT CONSIDER, INTER
ALIA, "REVISION OF SCHOOL DISTRICTS AND ATTENDANCE AREAS INTO COMPACT
UNITS TO ACHIEVE A SYSTEM OF DETERMINING ADMISSION TO THE PUBLIC
SCHOOLS ON A NONRACIAL BASIS.  . .."  ID., AT 300 - 301.  THE MALADY
ADDRESSED IN BROWN II WAS THE STATEWIDE POLICY OF REQUIRING OR
PERMITTING SCHOOL SEGREGATION ON THE BASIS OF RACE, WHILE THE RECORD
HERE CONCERNS SEGREGATED SCHOOLS ONLY IN THE CITY OF DETROIT.  THE
OBLIGATION TO RECTIFY THE UNLAWFUL CONDITION NEVERTHELESS RESTS ON THE
STATE.  THE PERMISSIBLE REVISION OF SCHOOL DISTRICTS CONTEMPLATED IN
BROWN II RESTED ON THE STATE"S RESPONSIBILITY FOR DESEGREGATING ITS
UNLAWFULLY SEGREGATED SCHOOLS, NOT ON ANY SEGREGATIVE EFFECT WHICH THE
CONDITION OF SEGREGATION IN ONE SCHOOL DISTRICT MIGHT HAVE HAD ON THE
SCHOOLS OF A NEIGHBORING DISTRICT.  THE SAME SITUATION OBTAINS HERE AND
THE SAME REMEDIAL POWER IS AVAILABLE TO THE DISTRICT COURT. 

LATER CASES REINFORCED THE CLEARLY ESSENTIAL RULES THAT STATE
OFFICIALS ARE FULLY ANSWERABLE FOR UNLAWFULLY CAUSED CONDITIONS OF
SCHOOL SEGREGATION WHICH CAN EFFECTIVELY BE CONTROLLED ONLY BY STEPS
BEYOND THE AUTHORITY OF LOCAL SCHOOL DISTRICTS TO TAKE, AND THAT THE
EQUITY POWER OF THE DISTRICT COURTS INCLUDES THE ABILITY TO ORDER SUCH
MEASURES IMPLEMENTED.  WHEN THE HIGHEST OFFICIALS OF THE STATE OF
ARKANSAS IMPEDED A FEDERAL COURT ORDER TO DESEGREGATE THE PUBLIC
SCHOOLS UNDER THE IMMEDIATE JURISDICTION OF THE LITTLE ROCK SCHOOL
BOARD, THIS COURT REFUSED TO ACCEPT THE LOCAL BOARD'S ASSERTION OF ITS
GOOD FAITH AS A LEGAL EXCUSE FOR DELAY IN IMPLEMENTING THE
DESEGREGATION ORDER.  THE COURT EMPHASIZED THAT "FROM THE POINT OF VIEW
OF THE FOURTEENTH AMENDMENT, THEY (THE LOCAL SCHOOL BOARD MEMBERS)
STAND IN THIS LITIGATION AS THE AGENTS OF THE STATE."  COOPER V. AARON,
358 U.S. 1, 16 (1958).  PERHAPS MORE IMPORTANTLY FOR PRESENT PURPOSES,
THE COURT WENT ON TO STATE: 

"THE RECORD BEFORE US CLEARLY ESTABLISHES THAT THE GROWTH OF THE
BOARD'S DIFFICULTIES TO A MAGNITUDE BEYOND ITS UNAIDED POWER TO CONTROL
IS THE PRODUCT OF STATE ACTION.  THOSE DIFFICULTIES.  . . CAN ALSO BE
BROUGHT UNDER CONTROL BY STATE ACTION."  IBID. SEE ALSO GRIFFIN V.
SCHOOL BOARD, 377 U.S. 218, 228, 233 - 234 (1964). 

IN THE CONTEXT OF DUAL SCHOOL SYSTEMS, THE COURT SUBSEQUENTLY MADE
CLEAR THE "AFFIRMATIVE DUTY TO TAKE WHAT EVER STEPS MIGHT BE NECESSARY
TO CONVERT TO A UNITARY SYSTEM IN WHICH RACIAL DISCRIMINATION WOULD BE
ELIMINATED ROOT AND BRANCH"  AND TO COME FORWARD WITH A DESEGREGATION
PLAN THAT "PROMISES REALISTICALLY TO WORK NOW."  GREEN V. COUNTY SCHOOL
BOARD OF NEW KENT COUNTY, 391 U.S. 430, 437 - 438, 439 (1968). 
"FREEDOM OF CHOICE" PLANS WERE REJECTED AS ACCEPTABLE DESEGREGATION
MEASURES WHERE "REASONABLY AVAILABLE OTHER WAYS.  . .PROMISING SPEEDIER
AND MORE EFFECTIVE CONVERSION TO A UNITARY, NONRACIAL SCHOOL SYSTEM . .
."EXIST.  ID., AT 441.  IMPERATIVE INSISTENCE ON IMMEDIATE FULL
DESEGREGATION OF DUAL SCHOOL SYSTEMS "TO OPERATE NOW AND HEREAFTER ONLY
UNITARY SCHOOLS" WAS REITERATED IN ALEXANDER V. HOLMES COUNTY BOARD OF
EDUCATION, 396 U.S. 19, 20 (1969), AND CARTER V. WEST FELICIANA PARISH
SCHOOL BOARD, 396 U.S. 290 (1970). 

THE BREADTH OF THE EQUITABLE AUTHORITY OF THE DISTRICTS COURTS TO
ACCOMPLISH THESE COMPREHENSIVE TASKS WAS REAFFIRMED IN MUCH GREATER
DETAIL IN SWANN, SUPRA, AND THE COMPANION CASE OF DAVIS V. SCHOOL
COMM'RS OF MOBILE COUNTY, 402 U.S. 33 (1971), WHERE THERE WAS UNANIMOUS
ASSENT TO THE FOLLOWING PROPOSITIONS: 

"HAVING ONCE FOUND A VIOLATION, THE DISTRICT JUDGE OR SCHOOL
AUTHORITIES SHOULD MAKE EVERY EFFORT TO ACHIEVE THE GREATEST POSSIBLE
DEGREE OF ACTUAL DESEGREGATION, TAKING INTO ACCOUNT THE PRACTICALITIES
OF THE SITUATION.  A DISTRICT COURT MAY AND SHOULD CONSIDER THE USE OF
ALL AVAILABLE TECHNIQUES INCLUDING RESTRUCTURING OF ATTENDANCE ZONES
AND BOTH CONTIGUOUS AND NONCONTIGUOUS ATTENDANCE ZONES.  . ..  THE
MEASURE OF ANY DESEGREGATION PLAN IS ITS EFFECTIVENESS."  ID., AT 37. 
NO SUGGESTION WAS MADE THAT INTERDISTRICT RELIEF WAS NOT AN AVAILABLE
TECHNIQUE.  IN SWANN ITSELF, THE COURT, WITHOUT DISSENT, RECOGNIZED
THAT THE DISTRICT JUDGE, IN FULFILLING HIS OBLIGATION TO "MAKE EVERY
EFFORT TO ACHIEVE THE GREATEST POSSIBLE DEGREE OF ACTUAL
DESEGREGATION(,) WILL THUS NECESSARILY BE CONCERNED WITH THE
ELIMINATION OF ONE-RACE SCHOOLS."  402 U.S.,AT 26.  NOR WAS THERE ANY
DISPUTE THAT TO BREAK UP THE DUAL SCHOOL SYSTEM, IT WAS WITHIN THE
DISTRICT COURT'S "BROAD REMEDIAL POWERS" TO EMPLOY A "FRANK--AND
SOMETIMES DRASTIC--GERRYMANDERING OF SCHOOL DISTRICTS AND ATTENDANCE
ZONES," AS WELL AS "PAIRING, 'CLUSTERING,'  OR 'GROUPING' OF SCHOOLS,"
TO DESEGREGATE THE "FORMERLY ALL-NEGRO SCHOOLS," DESPITE THE FACT THAT
THESE ZONES MIGHT NOT BE COMPACT OR CONTIGUOUS AND MIGHT BE "ON
OPPOSITE ENDS OF THE CITY."  ID., AT 27.  THE SCHOOL BOARD IN SWANN HAD
JURISDICTION OVER A 550-SQUARE-MILE AREA ENCOMPASSING THE CITY OF
CHARLOTTE AND SURROUNDING MECKLENBURG COUNTY, NORTH CAROLINA.  THE
MOBILE COUNTY, ALABAMA, BOARD IN DAVIS EMBRACED A 1,248-SQUARE-MILE
AREA, INCLUDING THE CITY OF MOBILE.  YET THE COURT APPROVED THE
DISTRICT COURT'S AUTHORITY TO AWARD COUNTYWIDE RELIEF IN EACH CASE IN
ORDER TO ACCOMPLISH DESEGREGATION OF DUAL SCHOOL SYSTEM. 

EVEN MORE RECENTLY, THE COURT SPECIFICALLY REJECTED THE CLAIM THAT A
NEW SCHOOL DISTRICT, WHICH ADMITTEDLY WOULD OPERATE A UNITARY SCHOOL
SYSTEM WITHIN ITS BORDERS, WAS BEYOND THE REACH OF A COURT-ORDERED
DESEGREGATION PLAN FOR OTHER SCHOOL DISTRICTS, WHERE THE EFFECTIVENESS
OF THE PLAN AS TO THE OTHER DISTRICTS DEPENDED UPON THE AVAILABILITY OF
THE FACILITIES AND STUDENT POPULATION OF THE NEW DISTRICT.  IN WRIGHT
V. COUNCIL OF THE CITY OF EMPORIA, 407 U.S. 451, 470 (1972), WE HELD
"THAT A NEW SCHOOL DISTRICT MAY NOT BE CREATED WHERE ITS EFFECT WOULD
BE TO IMPEDE THE PROCESS OF DISMANTLING A DUAL SYSTEM."  MR. JUSTICE
STEWART'S OPINION FOR THE COURT MADE CLEAR THAT IF A PROPOSAL TO ERECT
NEW DISTRICT BOUNDARY LINES "WOULD IMPEDE THE DISMANTLING OF THE (PRE
EXISTING) DUAL SYSTEM, THEN A DISTRICT COURT, IN THE EXERCISE OF ITS
REMEDIAL DISCRETION, MAY ENJOIN IT FROM BEING CARRIED OUT."  ID., AT
460.  IN UNITED STATES V. SCOTLAND NECK BOARD OF EDUCATION, 407 U.S.
484 (1972), THIS SAME STANDARD WAS APPLIED TO FORBID NORTH CAROLINA
FROM CREATING A NEW CITY SCHOOL DISTRICT WITHIN A LARGER DISTRICT WHICH
WAS IN THE PROCESS OF DISMANTLING A DUAL SCHOOL SYSTEM.  THE COURT
NOTED THAT IF ESTABLISHMENT OF THE NEW DISTRICT WERE PERMITTED, THE
"TRADITIONAL RACIAL IDENTITIES OF THE SCHOOLS IN THE AREA WOULD BE
MAINTAINED," ID., AT 490. 

UNTIL TODAY, THE PERMISSIBLE CONTOURS OF THE EQUITABLE AUTHORITY OF
THE DISTRICT COURTS TO REMEDY THE UNLAWFUL ESTABLISHMENT OF A DUAL
SCHOOL SYSTEM HAVE BEEN EXTENSIVE, ADAPTABLE, AND FULLY RESPONSIVE TO
THE ULTIMATE GOAL OF ACHIEVING "THE GREATEST POSSIBLE DEGREE OF ACTUAL
DESEGREGATION."  THERE ARE INDEED LIMITATIONS ON THE EQUITY POWERS OF
THE FEDERAL JUDICIARY, BUT UNTIL NOW THE COURT HAS NOT ACCEPTED THE
PROPOSITION THAT EFFECTIVE ENFORCEMENT OF THE FOURTEENTH AMENDMENT
COULD BE LIMITED BY POLITICAL OR ADMINISTRATIVE BOUNDARY LINES
DEMARCATED BY THE VERY STATE RESPONSIBLE FOR THE CONSTITUTIONAL
VIOLATION AND FOR THE DISESTABLISHMENT OF THE DUAL SYSTEM.  UNTIL NOW
THE COURT HAS INSTEAD LOOKED TO PRACTICAL CONSIDERATIONS IN
EFFECTUATING A DESEGREGATION DECREE SUCH AS EXCESSIVE DISTANCE,
TRANSPORTATION TIME, AND HAZARDS TO THE SAFETY OF THE SCHOOLCHILDREN
INVOLVED IN A PROPOSED PLAN.  THAT THESE BROAD PRINCIPLES HAVE
DEVELOPED IN THE CONTEXT OF DUAL SCHOOL SYSTEMS COMPELLED OR AUTHORIZED
BY STATE STATUTE AT THE TIME OF BROWN V. BOARD OF EDUCATION, 347 U.S.
483 (1954) (BROWN I), DOES NOT LESSEN THEIR CURRENT APPLICABILITY TO
DUAL SYSTEMS FOUND TO EXIST IN OTHER CONTEXTS, LIKE THAT IN DETROIT,
WHERE INTENTIONAL SCHOOL SEGREGATION DOES NOT STEM FROM THE COMPULSION
OF STATE LAW, BUT FROM DELIBERATE INDIVIDUAL ACTIONS OF LOCAL AND STATE
SCHOOL AUTHORITIES DIRECTED AT A PARTICULAR SCHOOL SYSTEM.  THE
MAJORITY PROPERLY DOES NOT SUGGEST THAT THE DUTY TO ERADICATE COMPLETLY
THE RESULTING DUAL SYSTEM IN THE LATTER CONTEXT IS ANY LESS THAN IN THE
FORMER.  BUT ITS REASON FOR INCAPACITATING THE REMEDIAL AUTHORITY OF
THE FEDERAL JUDICIARY IN THE PRESENCE OF SCHOOL DISTRICT PERIMETERS IN
THE LATTER CONTEXT IS NOT READILY APPARENT. 

THE RESULT REACHED BY THE COURT CERTAINLY CANNOT BE SUPPORTED BY THE
THEORY THAT THE CONFIGURATION OF LOCAL GOVERNMENTAL UNITS IS IMMUNE
FROM ALTERATION WHEN NECESSARY TO REDRESS CONSTITUTIONAL VIOLATIONS. 
IN ADDITION TO THE WELL-ESTABLISHED PRINCIPLES ALREADY NOTED, THE COURT
HAS ELSEWHERE REQUIRED THE PUBLIC BODIES OF A STATE TO RESTRUCTURE THE
STATE'S POLITICAL SUBDIVISIONS TO REMEDY INFRINGEMENTS OF THE
CONSTITUTIONAL RIGHTS OF CERTAIN MEMBERS OF ITS POPULACE, NOTABLY IN
THE REAPPORTIONMENT CASES.  IN REYNOLDS V. SIMS, 377 U.S. 533 (1964),
FOR EXAMPLE, WHICH HELD THAT EQUAL PROTECTION OF THE LAWS DEMANDS THAT
THE SEATS IN BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE BE
APPORTIONED ON A POPULATION BASIS, THUS NECESSITATING WHOLESALE
REVISION OF ALABAMA'S VOTING DISTRICTS, THE COURT REMARKED: 

     "POLITICAL SUBDIVISIONS OF STATES--COUNTIES, CITIES, OR

  WHATEVER--NEVER WERE AND NEVER HAVE BEEN CONSIDERED AS SOVEREIGN

  ENTITIES.  RATHER, THEY HAVE BEEN TRADITIONALLY REGARDED AS

  SUBORDINATE GOVERNMENTAL INSTRUMENTALITIES CREATED BY THE STATE

  TO ASSIST IN THE CARRYING OUT OF STATE GOVERNMENTAL FUNCTIONS." 

ID., AT 575. 

AND EVEN MORE POINTEDLY, THE COURT DECLARED IN GOMILLION V. LIGHTFOOT,
364 U.S. 339, 344 - 345 (1960), THAT "(LEGISLATIVE CONTROL OF
MUNICIPALITIES, NO LESS THAN OTHER STATE POWER, LIES WITHIN THE SCOPE
OF RELEVANT LIMITATIONS IMPOSED BY THE UNITED STATES CONSTITUTION." 
NOR DOES THE COURT'S CONCLUSION FOLLOW FROM THE TALISMANIC INVOCATION
OF THE DESIRABILITY OF LOCAL CONTROL OVER EDUCATION.  LOCAL AUTONOMY
OVER SCHOOL AFFAIRS, IN THE SENSE OF THE COMMUNITY'S PARTICIPATION IN
THE DECISION AFFECTING THE EDUCATION OF ITS CHILDREN, IS, OF COURSE, AN
IMPORTANT INTEREST.  BUT PRESENTLY CONSTITUTED SCHOOL DISTRICT LINES DO
NOT DELIMIT FIXED AND UNCHANGEABLE AREAS OF A LOCAL EDUCATIONAL
COMMUNITY.  IF RESTRUCTURING IS REQUIRED TO MEET CONSTITUTIONAL
REQUIREMENTS, LOCAL AUTHORITY MAY SIMPLY BE REDEFINED IN TERMS OF
WHATEVER CONFIGURATION IS ADOPTED, WITH THE PARENTS OF THE CHILDREN
ATTENDING SCHOOLS IN THE NEWLY DEMARCATED DISTRICT OR ATTENDANCE ZONE
CONTINUING THEIR PARTICIPATION IN THE POLICY MANAGEMENT OF THE SCHOOLS
WITH WHICH THEY ARE CONCERNED MOST DIRECTLY.  THE MAJORITY'S SUGGESTION
THAT JUDGES SHOULD NOT ATTEMPT TO GRAPPLE WITH THE ADMINISTRATIVE
PROBLEMS ATTENDANT ON A REORGANIZATION OF SCHOOL ATTENDANCE PATTERNS IS
WHOLLY WITHOUT FOUNDATION.  IT IS PRECISELY THIS SORT OF TASK WHICH THE
DISTRICT COURTS HAVE BEEN PROPERLY EXERCISING TO VINDICATE THE
CONSTITUTIONAL RIGHTS OF NEGRO STUDENTS SINCE BROWN I AND WHICH THE
COURT HAS NEVER SUGGESTED THEY LACK THE CAPACITY TO PERFORM. 
INTRADISTRICT REVISIONS OF ATTENDANCE ZONES, AND PAIRING AND GROUPING
OF SCHOOLS, ARE TECHNIQUES UNANIMOUSLY APPROVED IN SWANN WHICH ENTAIL
THE SAME SENSITIVITY TO THE INTEREST OF PARENTS IN THE EDUCATION THEIR
CHILDREN RECEIVE AS WOULD AN INTERDISTRICT PLAN WHICH IS LIKELY TO
EMPLOY THE VERY SAME METHODS. 

THERE IS NO REASON TO SUPPOSE THAT THE DISTRICT COURT, WHICH HAS NOT
YET ADOPTED A FINAL PLAN OF DESEGREGATION, WOULD NOT BE AS CAPABLE OF
GIVING OR AS LIKELY TO GIVE SUFFICIENT WEIGHT TO THE INTEREST IN
COMMUNITY PARTICIPATION IN SCHOOLS IN AN INTERDISTRICT SETTING,
CONSISTENT WITH THE DICTATES OF THE FOURTEENTH AMENDMENT.  THE
MAJORITY'S ASSUMPTION THAT THE DISTRICT COURT WOULD ACT OTHERWISE IS A
RADICAL DEPARTURE FROM THE PRACTICAL FLEXIBILITY PREVIOUSLY LEFT TO THE
EQUITY POWERS OF THE FEDERAL JUDICIARY. 

FINALLY, I REMAIN WHOLLY UNPERSUADED BY THE COURT'S ASSERTION THAT
"THE REMEDY IS NECESSARILY DESIGNED, AS ALL REMEDIES ARE, TO RESTORE
THE VICTIMS OF DISCRIMINATORY CONDUCT TO THE POSITION THEY WOULD HAVE
OCCUPIED IN THE ABSENCE OF SUCH CONDUCT."  ANTE, AT 746.  IN THE FIRST
PLACE, UNDER THIS PREMISE THE COURT'S JUDGMENT IS ITSELF INFIRM; FOR
HAD THE DETROIT SCHOOL SYSTEM NOT FOLLOWED AN OFFICIAL POLICY OF
SEGREGATION THROUGHOUT THE 1950'S AND 1960'S, NEGROES AND WHITES WOULD
HAVE BEEN GOING TO SCHOOL TOGETHER.  THERE WOULD HAVE BEEN NO, OR AT
LEAST NOT AS MANY, RECOGNIZABLE NEGRO SCHOOLS AND NO, OR AT LEAST NOT
AS MANY WHITE SCHOOLS, BUT "JUST SCHOOLS," AND NEITHER NEGROES NOR
WHITES WOULD HAVE SUFFERED FROM THE EFFECTS OF SEGREGATED EDUCATION,
WITH ALL ITS SHORTCOMINGS.  SURELY THE COURT'S REMEDY WILL NOT RESTORE
TO THE NEGRO COMMUNITY, STIGMATIZED AS IT WAS BY THE DUAL SCHOOL
SYSTEM, WHAT IT WOULD HAVE ENJOYED OVER ALL OR MOST OF THIS PERIOD IF
THE REMEDY IS CONFINED TO PRESENT-DAY DETROIT; FOR THE MAXIMUM REMEDY
AVAILABLE WITHIN THAT AREA WILL LEAVE MANY OF THE SCHOOLS ALMOST
TOTALLY BLACK, AND THE SYSTEM ITSELF WILL BE PREDOMINANTLY BLACK AND
WILL BECOME INCREASINGLY SO.  MOREOVER, WHEN A STATE HAS ENGAGED IN
ACTS OF OFFICIAL SEGREGATION OVER A LENGTHY PERIOD OF TIME, AS IN THE
CASE BEFORE US, IT IS UNREALISTIC TO SUPPOSE THAT THE CHILDREN WHO WERE
VICTIMS OF STATE'S UNCONSTITUTIONAL CONDUCT COULD NOW BE PROVIDED THE
BENEFITS OF WHICH THEY WERE WRONGFULLY DEPRIVED. 

NOR CAN THE BENEFITS WHICH ACCRUE TO SCHOOL SYSTEMS IN WHICH
SCHOOLCHILDREN HAVE NOT BEEN OFFICIALLY SEGREGATED AND TO THE
COMMUNITIES SUPPORTING SUCH SCHOOL SYSTEMS, BE FULLY AND IMMEDIATELY
RESTORED AFTER A SUBSTANTIAL PERIOD OF UNLAWFUL SEGREGATION.  THE
EDUCATION OF CHILDREN OF DIFFERENT RACES IN A DESEGREGATED ENVIRONMENT
HAS UNHAPPILY BEEN LOST, ALONG WITH THE SOCIAL, ECONOMIC, AND POLITICAL
ADVANTAGES WHICH ACCOMPANY A DESEGREGATED SCHOOL SYSTEM.  IT IS FOR
THESE REASONS THAT THE COURT HAS CONSISTENTLY FOLLOWED THE COURSE OF
REQUIRING THE EFFECTS OF PAST OFFICIAL SEGREGATION TO BE ELIMINATED
"ROOT AND BRANCH" BY IMPOSING, IN THE PRESENT, THE DUTY TO PROVIDE A
REMEDY WHICH WILL ACHIEVE "THE GREATEST POSSIBLE DEGREE OF ACTUAL
DESEGREGATION, TAKING INTO ACCOUNT THE PRACTICALITIES OF THE
SITUATION."  IT IS ALSO FOR THESE REASONS THAT ONCE A CONSTITUTIONAL
VIOLATION HAS BEEN FOUND, THE DISTRICT JUDGE OBLIGATED TO PROVIDE SUCH
A REMEDY "WILL THUS NECESSARILY BE CONCERNED WITH THE ELIMINATION OF
ONE-RACE SCHOOLS."  THESE CONCERNS WERE PROPERLY TAKEN INTO ACCOUNT BY
THE DISTRICT JUDGE IN THIS CASE.  CONFINING THE REMEDY TO THE
BOUNDARIES OF THE DETROIT DISTRICT IS QUITE UNRELATED EITHER TO THE
GOAL OF ACHIEVING MAXIMUM DESEGREGATION OR TO THOSE INTENSELY PRACTICAL
CONSIDERATIONS, SUCH AS THE EXTENT AND EXPENSE OF TRANSPORTATION, THAT
HAVE IMPOSED LIMITS ON REMEDIES IN CASES SUCH AS THIS.  THE COURT'S
REMEDY, IN THE END, IS ESSENTIALLY ARBITRARY AND WILL LEAVE SERIOUS
VIOLATIONS OF THE CONSTITUTION SUBSTANTIALLY UNREMEDIED. 

I AGREE WITH MY BROTHER DOUGLAS THAT THE COURT OF APPEALS HAS ACTED
RESPONSIBLY IN THESE CASES.  REGRETABLY, THE MAJORITY'S ARBITRARY
LIMITATION ON THE EQUITABLE POWER OF FEDERAL DISTRICT COURTS, BASED ON
THE INVISIBLE BORDERS OF LOCAL SCHOOL DISTRICTS, IS UNRELATED TO THE
STATE'S RESPONSIBILITY FOR REMEDYING THE CONSTITUTIONAL WRONGS VISITED
UPON THE NEGRO SCHOOLCHILDREN OF DETROIT.  IT IS OBLIVIOUS TO THE
POTENTIAL BENEFITS OF METROPOLITAN RELIEF, TO THE NONEDUCATIONAL
COMMUNITIES OF INTEREST AMONG NEIGHBORHOODS LOCATED IN AND SOMETIMES
BRIDGING DIFFERENT SCHOOL DISTRICTS, AND TO THE CONSIDERABLE
INTERDISTRICT COOPERATION ALREADY EXISTING IN VARIOUS EDUCATIONAL
AREAS.  ULTIMATELY, IT IS UNRESPONSIVE TO THE GOAL OF ATTAINING THE
UTMOST ACTUAL DESEGREGATION CONSISTENT WITH RESTRAINTS OF
PRACTICABILITY AND THUS AUGURS THE FREQUENT FRUSTRATION OF THE REMEDIAL
POWERS OF THE FEDERAL COURTS. 

HERE THE DISTRICT COURT WILL BE FORCED TO IMPOSE AN INTRACITY
DESEGREGATION PLAN MORE EXPENSIVE TO THE DISTRICT, MORE BURDENSOME FOR
MANY OF DETROIT'S NEGRO STUDENTS, AND SURELY MORE CONDUCIVE TO WHITE
FLIGHT THAN A METROPOLITAN PLAN WOULD BE--ALL OF THIS MERELY TO AVOID
WHAT THE DETROIT SCHOOL BOARD, THE DISTRICT COURT, AND THE EN BANC
COURT OF APPEALS CONSIDERED TO BE THE VERY MANAGEABLE AND QUITE
SURMOUNTABLE DIFFICULTIES THAT WOULD BE INVOLVED IN EXTENDING THE
DESEGREGATION REMEDY TO THE SUBURBAN SCHOOL DISTRICTS. 

I AM THEREFORE CONSTRAINED TO RECORD MY DISAGREEMENT AND DISSENT. 

/1/  THE PERCENTAGE OF NEGRO PUPILS IN THE DETROIT STUDENT
POPULATION ROSE TO 64.9% IN 1971, TO 67.3% IN 1972, AND TO 69.8% IN
1973, AMID A METROPOLITAN SCHOOL POPULATION WHOSE RACIAL COMPOSITION IN
1970 WAS 81% WHITE AND 19% NEGRO.  SOURCES"  5 APP. 16; RACIAL-ETHNIC
DISTRIBUTION OF STUDENTS AND EMPLOYEES IN THE DETROIT PUBLIC SCHOOLS,
OCTOBER 1972, AND OCTOBER 1973; 484 F.2D 215, 250. 

/2/  THE DISTRICT COURT'S RULING ON THE DETROIT-ONLY DESEGREGATION
PLANS IS SET OUT IN FULL BY THE COURT OF APPEALS, ID., AT 242 - 245,
AND IS NOT OTHERWISE OFFICIALLY REPORTED. 

/3/  THE COURT HAS PREVIOUSLY DISAPPROVED THE IMPLEMENTATION OF
PROPOSED DESEGREGATION PLANS WHICH OPERATE TO PERMIT RESEGREGATION. 
MONROE V. BOARD OF COMM'RS, 391 U.S. 450, 459 - 460 (1968) ("FREE
TRANSFER" PLAN). 

/4/  THE COURT OF APPEALS ALSO NOTED SEVERAL SPECIFIC INSTANCES OF
SCHOOL DISTRICT MERGERS ORDERED BY THE STATE BOARD OF EDUCATION FOR
FINANCIAL REASONS.  484 F.2D,AT 247.  LIMITATIONS ON THE AUTHORITY OF
LOCAL SCHOOL DISTRICTS WERE ALSO OUTLINED BY THE COURT OF APPEALS: 

"LOCAL SCHOOL DISTRICTS, UNLESS THEY HAVE THE APPROVAL OF THE STATE
BOARD OF EDUCATION OR THE SUPERINTENDENT OF PUBLIC INSTRUCTION, CANNOT
CONSOLIDATE WITH ANOTHER SCHOOL DISTRICT, ANNEX TERRITORY, DIVIDE OR
ATTACH PARTS OF OTHER DISTRICTS, BORROW MONIES IN ANTICIPATION OF STATE
AID, OR CONSTRUCT, RECONSTRUCT OR REMODEL SCHOOL BUILDINGS OR ADDITIONS
TO THEM."  ID., AT 249.  (FOOTNOTES AND SUPPORTING STATUTORY CITATIONS
OMITTED.)  AND THE COURT OF APPEALS PROPERLY CONSIDERED THE STATE'S
STATUTORY ATTEMPT TO UNDO THE ADOPTION OF A VOLUNTARY HIGH SCHOOL
DESEGREGATION PLAN BY THE DETROIT BOARD OF EDUCATION AS EVIDENCING
STATE CONTROL OVER LOCAL SCHOOL DISTRICT AFFAIRS.  IBID.  FINALLY, IT
IS ALSO RELEVANT TO NOTE THAT THE DISTRICT COURT FOUND THAT THE SCHOOL
DISTRICT BOUNDARIES IN THAT SEGMENT OF THE METROPOLITAN AREA
PRELIMINARILY DESIGNATED AS THE DESEGREGATION AREA "IN GENERAL BEAR NO
RELATIONSHIP TO OTHER MUNICIPAL, COUNTY, OR SPECIAL DISTRICT
GOVERNMENTS, NEEDS OR SERVICES," THAT SOME EDUCATIONAL SERVICES ARE
ALREADY PROVIDED TO STUDENTS ON AN INTERDISTRICT BASIS REQUIRING THEIR
TRAVEL FROM ONE DISTRICT TO ANOTHER, AND THAT THE LOCAL COMMUNITIES IN
THE METROPOLITAN AREA SHARE NONEDUCATIONAL INTERESTS IN COMMON, WHICH
DO NOT ADHERE TO SCHOOL DISTRICT LINES, AND HAVE APPLIED METROPOLITAN
SOLUTIONS TO OTHER GOVERNMENTAL NEEDS.  345 F.SUPP.  914, 934 - 935 (ED
MICH. 1972). 

/5/  THESE INCLUDED THE CREATION AND ALTERATION OF ATTENDANCE ZONES
AND FEEDER PATTERNS FROM THE ELEMENTARY TO THE SECONDARY SCHOOLS IN A
MANNER NATURALLY AND PREDICTABLY PERPETUATING RACIAL SEGREGATION OF
STUDENTS, THE TRANSPORTATION OF NEGRO STUDENTS BEYOND PREDOMINANTLY
WHITE SCHOOLS WITH AVAILABLE SPACE TO PREDOMINANTLY NEGRO SCHOOLS, THE
USE OF OPTIONAL ATTENDANCE AREA IN NEIGHBORHOODS IN WHICH NEGRO
FAMILIES HAD RECENTLY BEGUN TO SETTLE TO PERMIT WHITE STUDENTS TO
TRANSFER TO PREDOMINANTLY WHITE SCHOOLS NEARER THE CITY LIMITS, AND THE
CONSTRUCTION OF SCHOOLS IN THE HEART OF RESIDENTIALLY SEGREGATED AREAS,
THEREBY MAXIMIZING SCHOOL SEGREGATION. 

#*DOP 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE WHITE JOIN, DISSENTING. 

IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954), THIS COURT HELD
THAT SEGREGATION OF CHILDREN IN PUBLIC SCHOOLS ON THE BASIS OF RACE
DEPRIVES MINORITY GROUP CHILDREN OF EQUAL EDUCATIONAL OPPORTUNITIES AND
THEREFORE DENIES THEM THE EQUAL PROTECTION OF LAWS UNDER THE FOURTEENTH
AMENDMENT.  THIS COURT RECOGNIZED THEN THAT REMEDYING DECADES OF
SEGREGATION IN PUBLIC EDUCATION WOULD NOT BE AN EASY TASK.  SUBSEQUENT
EVENTS, UNFORTUNATELY, HAVE SEEN THAT PREDICTION BEAR BITTER FRUIT. 
BUT HOWEVER IMBEDDED OLD WAYS, HOWEVER INGRAINED OLD PREJUDICES, THIS
COURT HAS NOT BEEN DIVERTED FROM ITS APPOINTED TASK OF MAKING "A LIVING
TRUTH" OF OUR CONSTITUTIONAL IDEAL OF EQUAL JUSTICE UNDER LAW.  COOPER
V. AARON, 358 U.S. 1, 20 (1958). 

AFTER 20 YEARS OF SMALL, OFTEN DIFFICULT STEPS TOWARD THAT GREAT
END, THE COURT TODAY TAKES A GIANT STEP BACKWARDS.  NOTWITHSTANDING A
RECORD SHOWING WIDESPREAD AND PERVASIVE RACIAL SEGREGATION IN THE
EDUCATION SYSTEM PROVIDED BY THE STATE OF MICHIGAN FOR CHILDREN IN
DETROIT, THIS COURT HOLDS THAT THE DISTRICT COURT WAS POWERLESS TO
REQUIRE THE STATE TO REMEDY ITS CONSTITUTIONAL VIOLATION IN ANY
MEANINGFUL FASHION.  IRONICALLY PURPORTING TO BASE ITS RESULT ON THE
PRINCIPLE THAT THE SCOPE OF THE REMEDY IN A DESEGREGATION CASE SHOULD
BE DETERMINED BY THE NATURE AND THE EXTENT OF THE CONSTITUTIONAL
VIOLATION, THE COURT'S ANSWER IS TO PROVIDE NO REMEDY AT ALL FOR THE
VIOLATION PROVED IN THIS CASE, THEREBY GUARANTEEING THAT NEGRO CHILDREN
IN DETROIT WILL RECEIVE THE SAME SEPARATE AND INHERENTLY UNEQUAL
EDUCATION IN THE FUTURE AS THEY HAVE BEEN UNCONSTITUTIONALLY AFFORDED
IN THE PAST. 

I CANNOT SUBSCRIBE TO THIS EMASCULATION OF OUR CONSTITUTIONAL
GUARANTEE OF EQUAL PROTECTION OF THE LAWS AND MUST RESPECTIVELY
DISSENT.  OUR PRECEDENTS, IN MY VIEW, FIRMLY ESTABLISH THAT WHERE, AS
HERE, STATE-IMPOSED SEGREGATION HAS BEEN DEMONSTRATED, IT BECOMES THE
DUTY OF THE STATE TO ELIMINATE ROOT AND BRANCH ALL VESTIGES OF RACIAL
DISCRIMINATION AND TO ACHIEVE THE GREATEST POSSIBLE DEGREE OF ACTUAL
DESEGREGATION.  I AGREE WITH BOTH THE DISTRICT COURT AND THE COURT OF
APPEALS THAT, UNDER THE FACTS OF THIS CASE, THIS DUTY CANNOT BE
FULFILLED UNLESS THE STATE OF MICHIGAN INVOLVES OUTLYING METROPOLITAN
AREA SCHOOL DISTRICTS IN ITS DESEGREGATION REMEDY.  FURTHERMORE, I
PERCEIVE NO BASIS EITHER IN LAW OR IN THE PRACTICALITIES OF THE
SITUATION JUSTIFYING THE STATE'S INTERPOSITION OF SCHOOL DISTRICT
BOUNDARIES AS ABSOLUTE BARRIERS TO THE IMPLEMENTATION OF AN EFFECTIVE
DESEGREGATION REMEDY.  UNDER ESTABLISHED AND FREQUENTLY USED MICHIGAN
PROCEDURES, SCHOOL DISTRICT LINES ARE BOTH FLEXIBLE AND PERMEABLE FOR A
WIDE VARIETY OF PURPOSES, AND THERE IS NO REASON WHY THEY MUST NOW
STAND IN THE WAY OF MEANINGFUL DESEGREGATION RELIEF. 

THE RIGHTS AT ISSUE IN THIS CASE ARE TOO FUNDAMENTAL TO BE ABRIDGED
ON GROUNDS AS SUPERFICIAL AS THOSE RELIED ON BY THE MAJORITY TODAY.  WE
DEAL HERE WITH THE RIGHT OF ALL OF OUR CHILDREN, WHATEVER THEIR RACE,
TO AN EQUAL START IN LIFE AND TO AN EQUAL OPPORTUNITY TO REACH THEIR
FULL POTENTIAL AS CITIZENS.  THOSE CHILDREN WHO HAVE BEEN DENIED THAT
RIGHT IN THE PAST DESERVE BETTER THAN TO SEE FENCES THROWN UP TO DENY
THEM THAT RIGHT IN THE FUTURE.  OUR NATION, I FEAR, WILL BE ILL SERVED
BY THE COURT'S REFUSAL TO REMEDY SEPARATE AND UNEQUAL EDUCATION, FOR
UNLESS OUR CHILDREN BEGIN TO LEARN TOGETHER, THERE IS LITTLE HOPE THAT
OUR PEOPLE WILL EVER LEARN TO LIVE TOGETHER. 

I 

THE GREAT IRONY OF THE COURT'S OPINION AND, IN MY VIEW, ITS MOST
SERIOUS ANALYTICAL FLAW MAY BE GLEANED FROM ITS CONCLUDING SENTENCE, IN
WHICH THE COURT REMANDS FOR "PROMPT FORMULATION OF A DECREE DIRECTED TO
ELIMINATING THE SEGREGATION FOUND TO EXIST IN DETROIT CITY SCHOOLS, A
REMEDY WHICH HAS BEEN DELAYED SINCE 1970."  ANTE, AT 753.  THE
MAJORITY, HOWEVER, SEEMS TO HAVE FORGOTTEN THE DISTRICT COURT'S
EXPLICIT FINDING THAT A DETROIT-ONLY DECREE, THE ONLY REMEDY PERMITTED
UNDER TODAY'S DECISION, "WOULD NOT ACCOMPLISH DESEGREGATION." 
NOWHERE IN THE COURT'S OPINION DOES THE MAJORITY CONFRONT, LET ALONE
RESPOND TO, THE DISTRICT COURT'S CONCLUSION THAT A REMEDY LIMITED TO
THE CITY OF DETROIT WOULD NOT EFFECTIVELY DESEGREGATE THE DETROIT CITY
SCHOOLS.  I, FOR ONE, FIND THE DISTRICT COURT'S CONCLUSION WELL
SUPPORTED BY THE RECORD AND ITS ANALYSIS COMPELLED BY OUR PRIOR CASES. 
BEFORE TURNING TO THESE QUESTIONS, HOWEVER, IT IS BEST TO BEGIN BY
LAYING TO REST SOME MISCHARACTERIZATIONS IN THE COURT'S OPINION WITH
RESPECT TO THE BASIS FOR THE DISTRICT COURT'S DECISION TO IMPOSE A
METROPOLITAN REMEDY. 

THE COURT MAINTAINS THAT WHILE THE INITIAL FOCUS OF THIS LAWSUIT WAS
THE CONDITION OF SEGREGATION WITHIN THE DETROIT CITY SCHOOLS, THE
DISTRICT COURT ABRUPTLY SHIFTED FOCUS IN MID-COURSE AND ALTERED ITS
THEORY OF THE CASE.  THIS NEW THEORY, IN THE MAJORITY'S WORDS, WAS
"EQUATING RACIAL EMBALANCE WITH A CONSTITUTIONAL VIOLATION CALLING FOR
A REMEDY."  ANTE, AT 741 N. 19.  AS THE FOLLOWING REVIEW OF THE
DISTRICT COURT'S HANDLING OF THE CASE DEMONSTRATES, HOWEVER, THE
MAJORITY'S CHARACTERIZATION IS TOTALLY INACCURATE.  NOWHERE DID THE
DISTRICT COURT INDICATE THAT RACIAL IMBALANCE BETWEEN SCHOOL DISTRICTS
IN THE DETROIT METROPOLITAN AREA OR WITHIN THE DETROIT SCHOOL DISTRICT
CONSTITUTED A CONSTITUTIONAL VIOLATION CALLING FOR INTERDISTRICT
RELIEF.  THE FOCUS OF THIS CASE WAS FROM THE BEGINNING, AND HAS
REMAINED, THE SEGREGATED SYSTEM OF EDUCATION IN THE DETROIT CITY
SCHOOLS AND THE STEPS NECESSARY TO CURE THAT CONDITION WHICH OFFENDS
THE FOURTEENTH AMENDMENT. 

THE DISTRICT COURT'S CONSIDERATION OF THIS CASE BEGAN WITH ITS
FINDING, WHICH THE MAJORITY ACCEPTS, THAT THE STATE OF MICHIGAN,
THROUGH ITS INSTRUMENTALITY, THE DETROIT BOARD OF EDUCATION, ENGAGED IN
WIDESPREAD PURPOSEFUL ACTS OF RACIAL SEGREGATION IN THE DETROIT SCHOOL
DISTRICT.  WITHOUT BELABORING THE DETAILS, IT IS SUFFICIENT TO NOTE
THAT THE VARIOUS TECHNIQUES USED IN DETROIT WERE TYPICAL OF METHODS
EMPLOYED TO SEGREGATE STUDENTS BY RACE IN AREAS WHERE NO STATUTORY DUAL
SYSTEM OF EDUCATION HAS EXISTED.  SEE, E.G., KEYES V. SCHOOL DISTRICT
NO. 1, DENVER, COLORADO, 413 U.S. 189 (1973).  EXACERBATING THE EFFECTS
OF EXTENSIVE RESIDENTIAL SEGREGATION BETWEEN NEGROES AND WHITES, THE
SCHOOL BOARD CONSCIOUSLY DREW ATTENDANCE ZONES ALONG LINES WHICH
MAXIMIZED THE SEGREGATION OF THE RACES IN SCHOOLS AS WELL.  OPTIONAL
ATTENDANCE ZONES WERE CREATED FOR NEIGHBORHOODS UNDERGOING RACIAL
TRANSITION SO AS TO ALLOW WHITES IN THESE AREAS TO ESCAPE INTEGRATION. 
NEGRO STUDENTS IN AREAS WITH OVERCROWDED SCHOOLS WERE TRANSPORTED PAST
OR AWAY FROM CLOSER WHITE SCHOOLS WITH AVAILABLE SPACE TO MORE DISTANT
NEGRO SCHOOLS.  GRADE STRUCTURES AND FEEDER-SCHOOL PATTERNS WERE
CREATED AND MAINTAINED IN A MANNER WHICH HAD THE FORESEEABLE AND ACTUAL
EFFECT OF KEEPING NEGRO AND WHITE PUPILS IN SEPARATE SCHOOLS.  SCHOOLS
WERE ALSO CONSTRUCTED IN LOCATIONS AND IN SIZES WHICH ENSURED THAT THEY
WOULD OPEN WITH PREDOMINANTLY ONE-RACE STUDENT BODIES.  IN SUM, THE
EVIDENCE ADDUCED BELOW SHOWED THAT NEGRO CHILDREN HAD BEEN
INTENTIONALLY CONFINED TO AN EXPANDING CORE OF VIRTUALLY ALL-NEGRO
SCHOOLS IMMEDIATELY SURROUNDED BY A RECEDING BAND OF ALL-WHITE
SCHOOLS. 

CONTRARY TO THE SUGGESTIONS IN THE COURT'S OPINION, THE BASIS FOR
AFFORDING A DESEGREGATION REMEDY IN THIS CASE WAS NOT SOME PERCEIVED
RACIAL IMBALANCE EITHER BETWEEN SCHOOLS WITHIN A SINGLE SCHOOL DISTRICT
OR BETWEEN INDEPENDENT SCHOOL DISTRICTS.  WHAT WE CONFRONT HERE IS "A
SYSTEMATIC PROGRAM OF SEGREGATION AFFECTING A SUBSTANTIAL PORTION OF
THE STUDENTS, SHCOOLS . . . AND FACILITIES WITHIN THE SCHOOL SYSTEM . .
.."  ID., AT 201.  THE CONSTITUTIONAL VIOLATION FOUND HERE WAS NOT SOME
DE FACTO RACIAL IMBALANCE, BUT RATHER THE PURPOSEFUL, INTENTIONAL,
MASSIVE, DE JURE SEGREGATION OF THE DETROIT CITY SCHOOLS, WHICH UNDER
OUR DECISION IN KEYES, FORMS "A PREDICATE FOR A FINDING OF THE
EXISTENCE OF A DUAL SCHOOL SYSTEM," IBID., AND JUSTIFIES "ALL-OUT
DESEGREGATION."  ID., AT 214. 

HAVING FOUND A DE JURE SEGREGATED PUBLIC SCHOOL SYSTEM IN OPERATION
IN THE CITY OF DETROIT, THE DISTRICT COURT TURNED NEXT TO CONSIDER
WHICH OFFICIALS AND AGENCIES SHOULD BE ASSIGNED THE AFFIRMATIVE
OBLIGATION TO CURE THE CONSTITUTIONAL VIOLATION.  THE COURT CONCLUDED
THAT RESPONSIBILITY FOR THE SEGREGATION IN THE DETROIT CITY SCHOOLS
RESTED NOT ONLY WITH THE BOARD OF EDUCATION, BUT BELONGED TO THE STATE
OF MICHIGAN ITSELF AND THE STATE DEFENDANTS IN THIS CASE--THAT IS, THE
GOVERNOR OF MICHIGAN, THE ATTORNEY GENERAL, THE STATE BOARD OF
EDUCATION, AND THE STATE SUPERINTENDENT OF PUBLIC INSTRUCTION.  WHILE
THE VALIDITY OF THIS CONCLUSION WILL MERIT MORE EXTENSIVE ANALYSIS
BELOW, SUFFICE IT FOR NOW TO SAY THAT IT WAS BASED ON THREE
CONSIDERATIONS.  FIRST, THE EVIDENCE AT TRIAL SHOWED THAT THE STATE
ITSELF HAD TAKEN ACTIONS CONTRIBUTING TO THE SEGREGATION WITHIN THE
DETROIT SCHOOLS.  SECOND, SINCE THE DETROIT BOARD OF EDUCATION WAS AN
AGENCY OF THE STATE OF MICHIGAN, ITS ACTS OF RACIAL DISCRIMINATION WERE
ACTS OF THE STATE FOR PURPOSES OF THE FOURTEENTH AMENDMENT.  FINALLY,
THE DISTRICT COURT FOUND THAT UNDER MICHIGAN LAW AND PRACTICE, THE
SYSTEM OF EDUCATION WAS IN FACT A STATE SCHOOL SYSTEM, CHARACTERIZED BY
RELATIVELY LITTLE LOCAL CONTROL AND A LARGE DEGREE OF CENTRALIZED STATE
REGULATION, WITH RESPECT TO BOTH EDUCATIONAL POLICY AND THE STRUCTURE
AND OPERATION OF SCHOOL DISTRICTS. 

HAVING CONCLUDED, THEN, THAT THE SCHOOL SYSTEM IN THE CITY OF
DETROIT WAS A DE JURE SEGREGATED SYSTEM AND THAT THE STATE OF MICHIGAN
HAD THE AFFIRMATIVE DUTY TO REMEDY THAT CONDITION OF SEGREGATION, THE
DISTRICT COURT THEN TURNED TO THE DIFFICULT TASK OF DEVISING AN
EFFECTIVE REMEDY.  IT BEARS REPEATING THAT THE DISTRICT COURT'S FOCUS
AT THIS STAGE OF THE LITIGATION REMAINED WHAT IT HAD BEEN AT THE
BEGINNING--THE CONDITION OF SEGREGATION WITHIN THE DETROIT CITY
SCHOOLS.  AS THE DISTRICT COURT STATED:  "FROM THE INITIAL RULING (ON
SEGREGATION) TO THIS DAY, THE BASIS OF THE PROCEEDINGS HAS BEEN AND
REMAINS THE VIOLATION:  DE JURE SCHOOL SEGREGATION . . ..  THE TASK
BEFORE THIS COURT, THEREFORE, IS NOW, AND . . . HAS ALWAYS BEEN, HOW TO
DESEGREGATE THE DETROIT PUBLIC SCHOOLS." 

THE DISTRICT COURT FIRST CONSIDERED THREE DESEGREGATION PLANS
LIMITED TO THE GEOGRAPHICAL BOUNDARIES OF THE CITY OF DETROIT.  ALL
WERE REJECTED AS INEFFECTIVE TO DESEGREGATE THE DETROIT CITY SCHOOLS. 
SPECIFICALLY, THE DISTRICT COURT DETERMINED THAT THE RACIAL COMPOSITION
OF THE DETROIT STUDENT BODY IS SUCH THAT IMPLEMENTATION OF ANY DETROIT
ONLY PLAN "WOULD CLEARLY MAKE THE ENTIRE DETROIT PUBLIC SCHOOL SYSTEM
RACIALLY IDENTIFIABLE AS BLACK" AND WOULD "LEAVE MANY OF ITS SCHOOLS 75
TO 90 PER CENT BLACK."  THE DISTRICT COURT ALSO FOUND THAT A DETROIT
ONLY PLAN "WOULD CHANGE A SCHOOL SYSTEM WHICH IS NOW BLACK AND WHITE TO
ONE THAT WOULD BE PERCEIVED AS BLACK, THEREBY INCREASING THE FLIGHT OF
WHITES FROM THE CITY AND THE SYSTEM, THEREBY INCREASING THE BLACK
STUDENT POPULATION."  BASED ON THESE FINDINGS, THE DISTRICT COURT
REASONED THAT "RELIEF OF SEGREGATION IN THE PUBLIC SCHOOLS OF THE CITY
OF DETROIT CANNOT BE ACCOMPLISHED WITHIN THE CORPORATE GEOGRAPHICAL
LIMITS OF THE CITY" BECAUSE A DETROIT-ONLY DECREE "WOULD ACCENTUATE THE
RACIAL IDENTIFIABILITY OF THE DISTRICT AS BLACK SCHOOL SYSTEM, AND
WOULD NOT ACCOMPLISH DESEGREGATION."  THE DISTRICT COURT THEREFORE
CONCLUDED THAT IT "MUST LOOK BEYOND THE LIMITS OF THE DETROIT SCHOOL
DISTRICT FOR A SOLUTION TO THE PROBLEM OF SEGREGATION IN THE DETROIT
PUBLIC SCHOOLS.  . .." 

THE COURT ALSO MISSTATES THE BASIS FOR THE DISTRICT COURT'S ORDER BY
SUGGESTING THAT SINCE THE ONLY SEGREGATION PROVED AT TRIAL WAS WITHIN
THE DETROIT SCHOOL DISTRICT, ANY RELIEF WHICH EXTENDED BEYOND THE
JURISDICTION OF THE DETROIT BOARD OF EDUCATION WOULD BE INAPPROPRIATE
BECAUSE IT WOULD IMPOSE A REMEDY ON OUTLYING DISTRICTS "NOT SHOWN TO
HAVE COMMITTED ANY CONSTITUTIONAL VIOLATION."  ANTE, AT 745.  /2/  THE
ESSENTIAL FOUNDATION OF INTERDISTRICT RELIEF IN THIS CASE WAS NOT TO
CORRECT CONDITIONS WITHIN OUTLYING DISTRICTS WHICH THEMSELVES ENGAGED
IN PURPOSEFUL SEGREGATION.  INSTEAD, INTERDISTRICT RELIEF WAS SEEN AS A
NECESSARY PART OF ANY MEANINGFUL EFFORT BY THE STATE OF MICHIGAN TO
REMEDY THE STATE-CAUSED SEGREGATION WITHIN THE CITY OF DETROIT. 

RATHER THAN CONSIDER THE PROPRIETY OF INTERDISTRICT RELIEF ON THIS
BASIS, HOWEVER, THE COURT HAS CONJURED UP A LARGELY FICTIONAL ACCOUNT
OF WHAT THE DISTRICT COURT WAS ATTEMPTING TO ACCOMPLISH.  WITH ALL DUE
RESPECT, THE COURT, IN MY VIEW, DOES A GREAT DISSERVICE TO THE DISTRICT
JUDGE WHO LABORED LONG AND HARD WITH THIS COMPLEX LITIGATION BY
ACCUSING HIM OF CHANGING HORSES IN MIDSTREAM AND SHIFTING THE FOCUS OF
THIS CASE FROM THE PURSUIT OF A REMEDY FOR THE CONDITION OF SEGREGATION
WITHIN THE DETROIT SCHOOL DISTRICT TO SOME UNPRINCIPLED ATTEMPT TO
IMPOSE HIS OWN PHILOSOPHY OF RACIAL BALANCE ON THE ENTIRE DETROIT
METROPOLITAN AREA.  SEE ANTE, AT 738 - 739.  THE FOCUS OF THIS CASE HAS
ALWAYS BEEN THE SEGREGATED SYSTEM OF EDUCATION IN THE CITY OF DETROIT. 
THE DISTRICT COURT DETERMINED THAT INTERDISTRICT RELIEF WAS NECESSARY
AND APPROPRIATE ONLY BECAUSE IT FOUND THAT THE CONDITION OF SEGREGATION
WITHIN THE DETROIT SCHOOL DISTRICT COULD NOT BE CURED WITH A DETROIT
ONLY REMEDY.  IT IS ON THIS THEORY THAT THE INTERDISTRICT RELIEF MUST
STAND OR FALL.  UNLIKE THE COURT, I PERCEIVE MY TASK TO BE TO REVIEW
THE DISTRICT COURT'S ORDER FOR WHAT IT IS RATHER THAN TO CRITICIZE IT
FOR WHAT IT MANIFESTLY IS NOT. 

        II 

AS THE FOREGOING DEMONSTRATES, THE DISTRICT COURT'S DECISION TO
EXPAND ITS DESEGREGATION DECREE BEYOND THE GEOGRAPHICAL LIMITS OF THE
CITY OF DETROIT RESTED IN LARGE PART ON ITS CONCLUSIONS (A) THAT THE
STATE OF MICHIGAN WAS ULTIMATELY RESPONSIBLE FOR CURING THE CONDITION
OF SEGREGATION WITHIN THE DETROIT CITY SCHOOLS, AND (B) THAT A DETROIT
ONLY REMEDY WOULD NOT ACCOMPLISH THIS TASK.  IN MY VIEW, BOTH OF THESE
CONCLUSIONS ARE WELL SUPPORTED BY THE FACTS OF THIS CASE AND BY THIS
COURT'S PRECEDENTS. 

        A 

TO BEGIN WITH, THE RECORD AMPLY SUPPORTS THE DISTRICT COURT'S
FINDINGS THAT THE STATE OF MICHIGAN, THROUGH STATE OFFICERS AND STATE
AGENCIES, HAD ENGAGED IN PURPOSEFUL ACTS WHICH CREATED OR AGGRAVATED
SEGREGATION IN THE DETROIT SCHOOLS.  THE STATE BOARD OF EDUCATION, FOR
EXAMPLE, PRIOR TO 1962, EXERCISED ITS AUTHORITY TO SUPERVISE LOCAL
SCHOOL SITE SELECTION IN A MANNER WHICH CONTRIBUTED TO SEGREGATION. 
484 F.2D 215, 238 (CA6 1973).  FURTHERMORE, THE STATE'S CONTINUING
AUTHORITY, AFTER 1962, TO APPROVE SCHOOL BUILDING CONSTRUCTION PLANS
/3/  HAD INTERTWINED THE STATE WITH THE SITE-SELECTION DECISIONS OF THE
DETROIT BOARD OF EDUCATION WHICH HAD THE PURPOSE AND EFFECT OF
MAINTAINING SEGREGATION. 

THE STATE HAD ALSO STOOD IN THE WAY OF PAST EFFORTS TO DESEGREGATE
THE DETROIT CITY SCHOOLS.  IN 1970, FOR EXAMPLE, THE DETROIT SCHOOL
BOARD HAD BEGUN IMPLEMENTATION OF ITS OWN DESEGREGATION PLAN FOR ITS
HIGH SCHOOLS DESPITE CONSIDERABLE PUBLIC AND OFFICIAL RESISTANCE.  THE
STATE LEGISLATURE INTERVENED BY ENACTING ACT 48 OF THE PUBLIC ACTS OF
1970, SPECIFICALLY PROHIBITING IMPLEMENTATION OF THE DESEGREGATION PLAN
AND THEREBY CONTINUING THE GROWING SEGREGATION OF THE DETROIT SCHOOL
SYSTEM.  ADEQUATE DESEGREGATION OF THE DETROIT SYSTEM WAS ALSO HAMPERED
BY DISCRIMINATORY RESTRICTIONS PLACED BY THE STATE ON THE USE OF
TRANSPORTATION WITHIN DETROIT.  WHILE STATE AID FOR TRANSPORTATION WAS
PROVIDED BY STATUTE FOR SUBURBAN DISTRICTS, MANY OF WHICH WERE HIGHLY
URBANIZED, AID FOR INTRACITY TRANSPORTATION WAS EXCEPTED.  ONE OF THE
EFFECTS OF THIS RESTRICTION WAS TO ENCOURAGE THE CONSTRUCTION OF SMALL
WALK-IN NEIGHBORHOOD SCHOOLS IN DETROIT, THEREBY LENDING AID TO THE
INTENTIONAL POLICY OF CREATING A SCHOOL SYSTEM WHICH REFLECTED, TO THE
GREATEST EXTENT FEASIBLE, EXTENSIVE RESIDENTIAL SEGREGATION.  INDEED,
THAT ONE OF THE PURPOSES OF TRANSPORTATION RESTRICTION WAS TO IMPEDE
DESEGREGATION WAS EVIDENCED WHEN THE MICHIGAN LEGISLATURE AMENDED THE
STATE TRANSPORTATION AID ACT TO COVER INTRACITY TRANSPORTATION BUT
EXPRESSLY PROHIBITED THE ALLOCATION OF FUNDS FOR CROSS-BUSING OF
STUDENTS WITHIN A SCHOOL DISTRICT TO ACHIEVE RACIAL BALANCE.  /4/ CF.
NORTH CAROLINA STATE BOARD OF EDUCATION V. SWANN, 402 U.S. 43 (1971). 

ALSO SIGNIFICANT WAS THE STATE'S INVOLVEMENT DURING THE 1950'S IN
THE TRANSPORTATION OF NEGRO HIGH SCHOOL STUDENTS FROM THE CARVER SCHOOL
DISTRICT PAST A CLOSER WHITE HIGH SCHOOL IN THE OAK PARK DISTRICT TO A
MORE DISTANT NEGRO HIGH SCHOOL IN THE DETROIT DISTRICT.  CERTAINLY THE
DISTRICT COURT'S FINDING THAT THE STATE BOARD OF EDUCATION HAD
KNOWLEDGE OF THIS ACTION AND HAD GIVEN ITS TACIT OR EXPRESS APPROVAL
WAS NOT CLEARLY ERRONEOUS.  GIVEN THE COMPREHENSIVE STATUTORY POWERS OF
THE STATE BOARD OF EDUCATION OVER CONTRACTUAL ARRANGEMENTS BETWEEN
SCHOOL DISTRICTS IN THE ENROLLMENT OF STUDENTS ON A NONRESIDENT TUITION
BASIS, INCLUDING CERTIFICATION OF THE NUMBER OF PUPILS INVOLVED IN THE
TRANSFER AND THE AMOUNT OF TUITION CHARGED, OVER THE REVIEW OF
TRANSPORTATION ROUTES AND DISTANCES, AND OVER THE DISBURSEMENT OF
TRANSPORTATION FUNDS, FUNDS, /5/  THE STATE BOARD INEVITABLY KNEW AND
UNDERSTOOD THE SIGNIFICANCE OF THIS DISCRIMINATORY ACT. 

ASIDE FROM THE ACTS OF PURPOSEFUL SEGREGATION COMMITTED BY THE STATE
LIGISLATURE AND THE STATE BOARD OF EDUCATION, THE DISTRICT COURT ALSO
CONCLUDED THAT THE STATE WAS RESPONSIBLE FOR THE MANY INTENTIONAL ACTS
OF SEGREGATION COMMITTED BY THE DETROIT BOARD OF EDUCATION AN AGENCY OF
THE STATE.  THE MAJORITY IS ONLY WILLING TO ACCEPT THIS FINDING
ARGUENDO.  SEE ANTE, AT 748.  I HAVE NOT DOUBT, HOWEVER, AS TO ITS
VALIDITY UNDER THE FOURTEENTH AMENDMENT. 

"THE COMMAND OF THE FOURTEENTH AMENDMENT," IT SHOULD BE RECALLED,
"IS THAT NO 'STATE' SHALL DENY TO ANY PERSON WITHIN ITS JURISDICTION
THE EQUAL PROTECTION OF THE LAWS."  COOPER V. AARON, 358 U.S. 1, 16
(1958).  WHILE A STATE CAN ACT ONLY THROUGH "THE OFFICERS OR AGENTS BY
WHOM ITS POWERS ARE EXERTED," EX PARTE VIRGINIA, 100 U.S. 339, 347
(1880), ACTIONS BY AN AGENT OR OFFICER OF THE STATE ARE ENCOMPASSED BY
THE FOURTEENTH AMENDMENT FOR, "AS HE ACTS IN THE NAME AND FOR THE
STATE, AND IS CLOTHED WITH THE STATE'S POWER, HIS ACT IS THAT OF THE
STATE."  IBID.  SEE ALSO COOPER V. AARON, SUPRA; VIRGINIA V. RIVES, 100
U.S. 313, 318 (1880); SHELLEY V. KRAEMER, 334 U.S. 1, 14 (1948). 
UNDER MICHIGAN LAW A "SCHOOL DISTRICT IS AN AGENCY OF THE STATE
GOVERNMENT."  SCHOOL DISTRICT OF THE CITY OF THE LANSING V. STATE BOARD
OF EDUCATION, 367 MICH. 591, 600, 116 N.2.  2D 866, 870 (1962).  IT IS
"A LEGAL DIVISION OF TERRITORY, CREATED BY THE STATE FOR EDUCATIONAL
PURPOSES, TO WHICH THE STATE HAS GRANTED SUCH POWERS AS ARE DEEMED
NECESSARY TO PERMIT THE DISTRICT TO FUNCTION AS A STATE AGENCY." 
DETROIT BOARD OF EDUCATION V. SUPERINTENDENT OF PUBLIC INSTRUCTION, 319
MICH. 436, 450, 29 N.2.  2D 902, 908 (1947).  RACIAL DISCRIMINATION BY
THE SCHOOL DISTRICT, AN AGENCY OF THE STATE, IS THEREFORE RACIAL
DISCRIMINATION BY THE STATE ITSELF, FORBIDDEN BY THE FOURTEENTH
AMENDMENT.  SEE, E.G., PENNSYLVANIA V. BOARD OF TRUSTS, 353 U.S. 230
(1957). 

WE ARE RECOGNIZED ONLY LAST TERM IN KEYES THAT IT WAS THE STATE
ITSELF WHICH WAS ULTIMATELY RESPONSIBLE FOR DE JURE ACTS OF SEGREGATION
COMMITTED BY A LOCAL SCHOOL BOARD.  A DELIBERATE POLICY OF SEGREGATION
BY THE LOCAL BOARD, WE HELD, AMOUNTED TO "STATE-IMPOSED SEGREGATION." 
413 U.S.,AT 200.  WHEREVER A DUAL SCHOOL SYSTEM EXISTS, WHETHER
COMPELLED BY STATE STATUTE OR CREATED BY A LOCAL BOARD'S SYSTEMATIC
PROGRAM OF SEGREGATION, "THE STATE AUTOMATICALLY ASSUMES AN AFFIRMATIVE
DUTY 'TO EFFECTUATE A TRANSITION TO A RACIALLY NONDISCRIMINATORY SCHOOL
SYSTEM' (AND) TO ELIMINATE FROM THE PUBLIC SCHOOLS WITHIN THEIR SCHOOL
SYSTEM 'ALL VESTIGES OF STATE-IMPOSED SEGREGATION.'"  IBID. 

VESTING RESPONSIBILITY WITH THE STATE OF MICHIGAN FOR DETROIT'S
SEGREGATED SCHOOLS IS PARTICULARLY APPROPRIATE AS MICHIGAN, UNLIKE SOME
OTHER STATES, OPERATES A SINGLE STATEWIDE SYSTEM OF EDUCATION RATHER
THAN SEVERAL SEPARATE AND INDEPENDENT LOCAL SCHOOL SYSTEMS.  THE
MAJORITY'S EMPHASIS ON LOCAL GOVERNMENTAL CONTROL AND LOCAL AUTONOMY OF
SCHOOL DISTRICTS IN MICHIGAN WILL COME AS A SURPRISE TO THOSE WITH ANY
FAMILIARITY WITH THAT STATE'S SYSTEM OF EDUCATION.  SCHOOL DISTRICTS
ARE NOT SEPARATE AND DISTINCT SOVEREIGN ENTITIES UNDER MICHIGAN LAW,
BUT RATHER ARE "'AUXILIARIES OF THE STATE,'" SUBJECT TO ITS "ABSOLUTE
POWER."  ATTORNEY GENERAL OF MICHIGAN EX REL. KIES V. LOWREY, 199 U.S.
233, 240 (1905).  THE COURTS OF THE STATE HAVE REPEATEDLY EMPHASIZED
THAT EDUCATION IN MICHIGAN IS NOT A LOCAL GOVERNMENTAL CONCERN, BUT A
STATE FUNCTION. 

     UNLIKE THE DELEGATION OF OTHER POWERS BY THE LEGISLATURE TO

  LOCAL GOVERNMENTS, EDUCATION IS NOT INHERENTLY A PART OF THE

  LOCAL SELF-GOVERNMENT OF A MUNICIPALITY . . ..  CONTROL OF OUR

  PUBLIC SCHOOL SYSTEM IS A STATE MATTER DELEGATED AND LODGED IN

  THE STATE LEGISLATURE BY THE CONSTITUTION.  THE POLICY OF THE

  STATE HAS BEEN TO RETAIN CONTROL OF ITS SCHOOL SYSTEM, TO BE

  ADMINISTERED THROUGHOUT THE STATE UNDER STATE LAWS BY LOCAL STATE

  AGENCIES ORGANIZED WITH PLENARY POWERS TO CARRY OUT THE DELEGATED

  FUNCTIONS GIVEN (THEM) BY THE LEGISLATURE."  SCHOOL DISTRICT OF

  CITY OF LANSING V. STATE BOARD OF EDUCATION, SUPRA, AT 595, 116

  N.2.  2D,AT 868. 

THE SUPREME COURT OF MICHIGAN HAS NOTED THE DEEP ROOTS OF THIS POLICY. 

     "'IT HAS BEEN SETTLED BY THE ORDINANCE OF 1787, THE SEVER

  CONSTITUTIONS ADOPTED IN THIS STATE, BY ITS UNIFORM COURSE OF

  LEGISLATION, AND BY THE DECISIONS OF THIS COURT, THAT EDUCATION

  IN MICHIGAN IS A MATTER OF STATE CONCERN, THAT IT IS NO PART OF

  THE LOCAL SELF-GOVERNMENT OF A PARTICULAR TOWNSHIP OR

  MUNICIPALITY . . ..  THE LEGISLATURE HAS ALWAYS DICTATED THE

  EDUCATIONAL POLICY OF THE STATE."  IN RE SCHOOL DISTRICT NO. 6,

284 MICH. 132, 145 - 146, 278 N.W. 792, 797 (1938). 

THE STATE'S CONTROL OVER EDUCATION IS REFLECTED IN THE FACT THAT,
CONTRARY TO THE COURT'S IMPLICATION, THERE IS LITTLE OR NO RELATIONSHIP
BETWEEN SCHOOL DISTRICTS AND LOCAL POLITICAL UNITS.  TO TAKE THE 85
LOCAL SCHOOL DISTRICTS IN THE DETROIT METROPOLITAN AREA AS EXAMPLES, 17
DISTRICTS LIE IN TWO COUNTIES, TWO IN THREE COUNTIES.  ONE DISTRICT
SERVES FIVE MUNICIPALITIES; OTHER SUBURBAN MUNICIPALITIES ARE
FRAGMENTED INTO AS MANY AS SIX SCHOOL DISTRICTS.  NOR IS THERE ANY
APPARENT STATE POLICY WITH REGARD TO THE SIZE OF SCHOOL DISTRICTS, AS
THEY NOW RANGE FROM 2,000 TO 285,000 STUDENTS. 

CENTRALIZED STATE CONTROL MANIFESTS ITSELF IN PRACTICE AS WELL AS IN
THEORY.  THE STATE CONTROLS THE FINANCING OF EDUCATION IN SEVERAL
WAYS.  THE LEGISLATURE CONTRIBUTES A SUBSTANTIAL PORTION OF MOST SCHOOL
DISTRICTS' OPERATING BUDGETS WITH FUNDS APPROPRIATED FROM THE STATE'S
GENERAL FUND REVENUES RAISED THROUGH STATEWIDE TAXATION.  /6/  THE
STATE'S POWER OVER THE PURSE CAN BE AND IS IN FACT USED TO ENFORCE THE
STATE'S POWERS OVER LOCAL DISTRICTS.  /7/  IN ADDITION, ALTHOUGH LOCAL
DISTRICTS OBTAIN FUNDS THROUGH LOCAL PROPERTY TAXATION, THE STATE HAS
ASSUMED THE RESPONSIBILITY TO ENSURE EQUALIZED PROPERTY VALUATIONS
THROUGHOUT THE STATE.  /8/  THE STATE ALSO ESTABLISHES STANDARDS FOR
TEACHER CERTIFICATION AND TEACHER TENURE, /9/  DETERMINES PART OF THE
REQUIRED CURRICULUM; /10/  SETS THE MINIMUM SCHOOL TERM; /11/  APPROVES
BUS ROUTES, EQUIPMENT, AND DRIVERS; /12/  APPROVES TEXTBOOKS; /13/  AND
ESTABLISHES PROCEDURES FOR STUDENT DISCIPLINE.  /14/  THE STATE
SUPERINTENDENT OF PUBLIC INSTRUCTION AND THE STATE BOARD OF EDUCATION
HAVE THE POWER TO REMOVE LOCAL SCHOOL BOARD MEMBERS FROM OFFICE FOR
NEGLECT OF THEIR DUTIES.  /15/ 

MOST SIGNIFICANTLY FOR PRESENT PURPOSES, THE STATE HAS WIDE-RANGING
POWERS TO CONSOLIDATE AND MERGE SCHOOL DISTRICTS, EVEN WITHOUT THE
CONSENT OF THE DISTRICTS THEMSELVES OR OF THE LOCAL CITIZENRY.  /16/
SEE, E.G., ATTORNEY GENERAL EX REL. KIES V. LOWREY, 131 MICH. 639, 92
N.W. 289 (1902), AFF'D, 199 U.S. 233 (1905).  INDEED, RECENT YEARS HAVE
WITNESSED AN ACCELERATED PROGRAM OF SCHOOL DISTRICT CONSOLIDATIONS,
MERGERS, AND ANNEXATIONS, MANY OF WHICH WERE STATE IMPOSED.  WHEREAS
THE STATE HAD 7,362 LOCAL DISTRICTS IN 1912, THE NUMBER HAD BEEN
REDUCED TO 1,438 IN 1964 AND TO 738 IN 1968.  /17/  BY JUNE 1972, ONLY
608 SCHOOL DISTRICTS REMAINED.  FURTHERMORE, THE STATE HAS BROAD POWERS
TO TRANSFER PROPERTY FROM ONE DISTRICT TO ANOTHER, AGAIN WITHOUT THE
CONSENT OF THE LOCAL SCHOOL DISTRICTS AFFECTED BY THE TRANSFER.  /18/
SEE, E.G., SCHOOL DISTRICT OF THE CITY OF LANSING V. STATE BOARD OF
EDUCATION, SUPRA; IMLAY TOWNSHIP DISTRICT V. STATE BOARD OF EDUCATION,
359 MICH. 478, 102 N.W.2D 720 (1960). 

WHATEVER MAY BE THE HISTORY OF PUBLIC EDUCATION IN OTHER PARTS OF
OUR NATION, IT SIMPLY FLIES IN THE FACE OF REALITY TO SAY, AS DOES THE
MAJORITY, THAT IN MICHIGAN, "(NO SINGLE TRADITION IN PUBLIC EDUCATION
IS MORE DEEPLY ROOTED THAN LOCAL CONTROL OVER THE OPERATION OF
SCHOOLS.  . .."  ANTE, AT 741.  AS THE STATE'S SUPREME COURT HAS SAID:
"WE HAVE REPEATEDLY HELD THAT EDUCATION IN THIS STATE IS NOT A MATTER
OF LOCAL CONCERN, BUT BELONGS TO THE STATE AT LARGE."  COLLINGS V. CITY
OF DETROIT, 195 MICH. 330, 335 - 336, 161 N.W. 905, 907 (1917).  SEE
ALSO STURGIS V. COUNTY OF ALLEGAN, 343 MICH. 209, 215, 72 N.W. 2D 56,
59 (1955); VAN FLEET V. OLTMAN, 244 MICH. 241, 244, 221 N.W. 299, 300
(1928); CHILD WELFARE SOCIETY OF FLINT V. KENNEDY SCHOOL DISTRICT, 220
MICH. 290, 296, 189 N.W. 1002, 1004 (1922).  INDEED, A STUDY PREPARED
FOR THE 1961 MICHIGAN CONSTITUTIONAL CONVENTION NOTED THAT THE MICHIGAN
CONSTITUTION'S ARTICLES ON EDUCATION HAD RESULTED IN "THE ESTABLISHMENT
OF A STATE SYSTEM OF EDUCATION IN CONTRAST TO A SERIES OF LOCAL SCHOOL
SYSTEMS."  ELEMENTARY AND SECONDARY EDUCATION AND THE MICHIGAN
CONSTITUTION, MICHIGAN CONSTITUTIONAL CONVENTION STUDIES 1 (1961). 

IN SUM, SEVERAL FACTORS IN THIS CASE COALESCE TO SUPPORT THE
DISTRICT COURT'S RULING THAT IT WAS THE STATE OF MICHIGAN ITSELF, NOT
SIMPLY THE DETROIT BOARD OF EDUCATION, WHICH BORE THE OBLIGATION OF
CURING THE CONDITION OF SEGREGATION WITHIN THE DETROIT CITY SCHOOLS. 
THE ACTIONS OF THE STATE ITSELF DIRECTLY CONTRIBUTED TO DETROIT'S
SEGREGATION.  UNDER THE FOURTEENTH AMENDMENT, THE STATE IS ULTIMATELY
RESPONSIBLE FOR THE ACTIONS OF ITS LOCAL AGENCIES.  AND, FINALLY, GIVEN
THE STRUCTURE OF MICHIGAN'S EDUCATION SYSTEM, DETROIT'S SEGREGATION
CANNOT BE VIEWED AS THE PROBLEM OF AN INDEPENDENT AND SEPEARATE
ENTITY.  MICHIGAN OPERATES A SINGLE STATEWIDE SYSTEM OF EDUCATION, A
SUBSTANTIAL PART OF WHICH WAS SHOWN TO BE SEGREGATED IN THIS CASE. 

        B 

WHAT ACTION, THEN, COULD THE DISTRICT COURT REQUIRE THE STATE TO
TAKE IN ORDER TO CURE DETROIT'S CONDITION OF SEGREGATION?  OUR PRIOR
CASES HAVE NOT MINCED WORDS AS TO WHAT STEPS RESPONSIBLE OFFICIALS AND
AGENCIES MUST TAKE IN ORDER TO REMEDY SEGREGATION IN THE PUBLIC
SCHOOLS.  NOT ONLY MUST DISTINCTIONS ON THE BASIS OF RACE BE TERMINATED
FOR THE FUTURE, BUT SCHOOL OFFICIALS ARE ALSO "CLEARLY CHARGED WITH THE
AFFIRMATIVE DUTY TO TAKE WHATEVER STEPS MIGHT BE NECESSARY TO CONVERT
TO A UNITARY SYSTEM IN WHICH RACIAL DISCRIMINATION WOULD BE ELIMINATED
ROOT AND BRANCH."  GREEN V. COUNTY SCHOOL BOARD OF NEW KENT COUNTY, 391
U.S. 430, 437 - 438 (1968).  SE ALSO LEE V. MACON COUNTY BOARD OF
EDUCATION, 267 F.SUPP.  458 (MD ALA.), AFF'D SUB NOM.  WALLACE V.
UNITED STATES, 389 U.S. 215 (1967).  NEGRO STUDENTS ARE NOT ONLY
ENTITLED TO NEUTRAL NONDISCRIMINATORY TREATMENT IN THE FUTURE.  THEY
MUST RECEIVE "WHAT BROWN II PROMISED THEM:  A SCHOOL SYSTEM IN WHICH
ALL VESTIGES OF ENFORCED RACIAL SEGREGATION HAVE BEEN ELIMINATED." 
WRIGHT V. COUNCIL OF THE CITY OF EMPORIA, 407 U.S. 451, 463 (1972). 
SEE ALSO SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1,
15 (1971).  THESE REMEDIAL STANDARDS ARE FULLY APPLICABLE NOT ONLY TO
SCHOOL DISTRICTS WHERE A DUAL SYSTEM WAS COMPELLED BY STATUTE, BUT ALSO
WHERE, AS HERE, A DUAL SYSTEM WAS THE PRODUCT OF PURPOSEFUL AND
INTENTIONAL STATE ACTION.  SEE KEYES, 413 U.S.,AT 200 - 201. 

AFTER EXAMINING THREE PLANS LIMITED TO THE CITY OF DETROIT, THE
DISTRICT COURT CORRECTLY CONCLUDED THAT NONE WOULD ELIMINATE ROOT AND
BRANCH THE VESTIGES OF UNCONSTITUTIONAL SEGREGATION.  THE PLANS'
EFFECTIVENESS, OF COURSE, HAD TO BE EVALUATED IN THE CONTEST OF THE
DISTRICT COURT'S FINDINGS AS TO THE EXTENT OF SEGREGATION IN THE
DETROIT CITY SCHOOLS.  AS INDICATED EARLIER, THE MOST ESSENTIAL FINDING
WAS THAT NEGRO CHILDREN IN DETROIT HAD BEEN CONFINED BY INTENTIONAL
ACTS OF SEGREGATION TO A GROWING CORE OF NEGRO SCHOOLS SURROUNDED  BY A
RECEDING RING OF WHITE SCHOOLS.  /19/  THUS, IN 1960, OF DETROIT'S 251
REGULAR-ATTENDANCE SCHOOLS, 100 WERE 90% OR MORE WHITE AND 71 WERE 90%
OR MORE NEGRO. 

IN 1970, OF DETROIT'S 282 REGULAR-ATTENDANCE SCHOOLS, 69 WERE 90% OR
MORE WHITE AND 133 WERE 90% OR MORE NEGRO.  WHILE IN 1960, 68% OF ALL
SCHOOLS WERE 90% OR MORE ONE RACE, BY 1970, 71.6% OF THE SCHOOLS FELL
INTO THAT CATEGORY.  THE GROWING CORE OF ALL-NEGRO SCHOOLS WAS FURTHER
EVIDENCED IN TOTAL SCHOOL DISTRICT POPULATION FIGURES.  IN 1960 THE
DETROIT DISTRICT HAD 46% NEGRO STUDENTS AND 54% WHITE STUDENTS, BUT BY
1970, 64% OF THE STUDENTS WERE NEGRO AND ONLY 36% WERE WHITE.  THIS
INCREASE IN THE PROPORTION OF NEGRO STUDENTS WAS THE HIGHEST OF ANY
MAJOR NORTHERN CITY. 

IT WAS WITH THESE FIGURES IN THE BACKGROUND THAT THE DISTRICT COURT
EVALUATED THE ADEQUACY OF THE THREE DETROIT-ONLY PLANS SUBMITTED BY THE
PARTIES.  PLAN A, PROPOSED BY THE DETROIT BOARD OF EDUCATION,
DESEGREGATED THE HIGH SCHOOLS AND ABOUT A FIFTH OF THE MIDDLE-LEVEL
SCHOOLS.  IT WAS DEEMED INADEQUATE, HOWEVER, BECAUSE IT DID NOT
DESEGREGATE ELEMENTARY SCHOOLS AND LEFT THE MIDDLE-LEVEL SCHOOLS NOT
INCLUDED IN THE PLAN MORE SEGREGATED THAN EVER.  PLAN C, ALSO PROPOSED
BY THE DETROIT BOARD, WAS DEEMED INADEQUATE BECAUSE IT TOO COVERED ONLY
SOME GRADE LEVELS AND WOULD LEAVE ELEMENTARY SCHOOLS SEGREGATED.  PLAN
B, THE PLAINTIFFS'  PLAN, THOUGH REQUIRING THE TRANSPORTATION OF 82,000
PUPILS AND THE ACQUISITION OF 900 SCHOOL BUSES, WOULD MAKE LITTLE
HEADWAY IN ROOTING OUT THE VESTIGES OF SEGREGATION.  TO BEGIN WITH,
BECAUSE OF PRACTICAL LIMITATIONS, THE DISTRICT COURT FOUND THAT THE
PLAN WOULD LEAVE MANY OF THE DETROIT CITY SCHOOLS 75% TO 90% NEGRO. 
MORE SIGNIFICANTLY, THE DISTRICT COURT RECOGNIZED THAT IN THE CONTEXT
OF A COMMUNITY WHICH HISTORICALLY HAD A SCHOOL SYSTEM OF A DETROIT-ONLY
PLAN WOULD BE TO "CHANGE A SCHOOL SYSTEM WHICH IS NOW BLACK AND WHITE
TO ONE THAT WOULD BE PERCEIVED AS BLACK . . .."  THE RESULT OF THIS
CHANGED PERCEPTION, THE DISTRICT COURT FOUND, WOULD BE TO INCREASE THE
FLIGHT OF WHITES FROM THE CITY TO THE OUTLYING SUBURBS, COMPOUNDING THE
EFFECTS OF PRESENT RATE OF INCREASE IN THE PROPORTION OF NEGRO STUDENTS
IN THE DETROIT SYSTEM.  THUS, IEVEN IF A PLAN WERE ADOPTED WHICH, AT
ITS OUTSET, PROVIDED IN EVERY SCHOOL A 65% NEGRO-35% WHITE RACIAL MIX
IN KEEPING WITH THE NEGRO-WHITE PROPORTIONS OF THE TOTAL STUDENT
POPULATION SUCH A SYSTEM WOULD, IN SHORT ORDER, DEVOLVE INTO AN ALL
NEGRO SYSTEM.  THE NET RESULT WOULD BE A CONTINUATION OF THE ALL-NEGRO
SCHOOLS WHICH WERE THE HALLMARKS OF DETROIT'S FORMER DUAL SYSTEM OF ONE
RACE SCHOOLS. 

UNDER OUR DECISIONS, IT WAS CLEARLY PROPER FOR THE DISTRICT COURT TO
TAKE INTO ACCOUNT THE SO-CALLED "WHITE FLIGHT" FROM THE CITY SCHOOLS
WHICH WOULD BE FORTHCOMING FROM ANY DETROIT-ONLY DECREE.  THE COURT'S
PREDICTION OF WHITE FLIGHT WAS WELL SUPPORTED BY EXPERT TESTIMONY BASED
ON PAST EXPERIENCE IN OTHER CITIES UNDERGOING DESEGREGATION RELIEF.  WE
OURSELVES TOOK THE POSSIBILITY OF WHITE FLIGHT INTO ACCOUNT IN
EVALUATING THE EFFECTIVENESS OF A DESEGREGATION PLAN IN WRIGHT, SUPRA,
WHERE WE RELIED ON THE DISTRICT COURT'S FINDING THAT IF THE CITY OF
EMPORIA WERE ALLOWED TO WITHDRAW FROM THE EXISTING SYSTEM, LEAVING A
SYSTEM WITH A HIGHER PROPORTION OF NEGROES, IT "'MAY BE PROPORTION OF
WHITES IN COUNTY SCHOOLS MAY DROP AS THOSE WHO CAN REGISTER IN PRIVATE
ACADEMIES'.  . . ."  407 U.S.,AT 464.  ONE CANNOT IGNORE THE WHITE
FLIGHT PROBLEM, FOR WHERE LEGALLY IMPOSED SEGREGATION HAS BEEN
ESTABLISHED, THE DISTRICT COURT HAS THE RESPONSIBILITY TO SEE TO IT NOT
ONLY THAT THE DUAL SYSTEM IS TERMINATED AT ONCE BUT ALSO THAT FUTURE
EVENTS DO NOT SERVE TO PERPETUATE OR RE-ESTABLISH SEGREGATION.  SEE
SWANN, 402 U.S.,AT 21.  SEE ALSO GREEN, 391 U.S.,AT 438N.4; MONROE V.
BOARD OF COMM'RS, 391 U.S.450,459(1968). 

WE HELD IN SWANN THAT WHERE DE JURE SEGREGATION IS SHOWN, SCHOOL
AUTHORITIES MUST MAKE "EVERY EFFORT TO ACHIEVE THE GREATEST POSSIBLE
DEGREE OF ACTUAL DESEGREGATION."  402 U.S.,AT 26.  THIS IS THE
OPERATIVE STANDARD RE-EMPHASIZED IN DAVIS V. SCHOOL COMMR'S OF MOBILE
COUNTY, 402 U.S. 33, 37 (1971).  IF THESE WORDS HAVE ANY MEANING AT
ALL, SURELY IT IS THAT SCHOOL AUTHORITIES MUST, TO THE EXTENT POSSIBLE,
TAKE ALL PRACTICABLE STEPS TO ENSURE THAT NEGRO AND WHITE CHILDREN IN
FACT GO TO SCHOOL TOGETHER.  THIS IS, IN THE FINAL ANALYSIS, WHAT
DESEGREGATION OF THE PUBLIC SCHOOLS IS ALL ABOUT. 

BECAUSE OF THE ALREADY HIGH AND RAPIDLY INCREASING PERCENTAGE OF
NEGRO STUDENTS IN THE DETROIT SYSTEM, AS WELL AS THE PROSPECT OF WHITE
FLIGHT, A DETROIT-ONLY PLAN SIMPLY HAS NO HOPE OF ACHIEVING ACTUAL
DESEGREGATION.  UNDER SUCH A PLAN WHITE AND NEGRO STUDENTS WILL NOT GO
TO SCHOOL TOGETHER.  INSTEAD, NEGRO CHILDREN WILL CONTINUE TO ATTEND
ALL-NEGRO SCHOOLS.  THE VERY EVIL THAT BROWN I WAS AIMED AT WILL NOT BE
CURED, BUT WILL BE PERPETUATED FOR THE FUTURE. 

RACIALLY IDENTIFIABLE SCHOOLS ARE ONE OF THE PRIMARY VESTIGES OF
STATE-IMPOSED SEGREGATION WHICH AN EFFECTIVE DESEGREGATION DECREE MUST
ATTEMPT TO ELIMINATE.  IN SWANN, FOR EXAMPLE, WE HELD THAT "(THE
DISTRICT JUDGE OR SCHOOL AUTHORITIES . . . WILL THUS NECESSARILY BE
CONCERNED WITH THE ELIMINATION OF ONE-RACE SCHOOLS."  402 U.S.,AT 26. 
THERE IS "A PRESUMPTION," WE STATED, "AGAINST SCHOOLS THAT ARE
SUBSTANTIALLY DISPROPORTIONATE IN THEIR RACIAL COMPOSITION."  IBID.
AND IN EVALUATING THE EFFECTIVENESS OF DESEGREGATION PLANS IN PRIOR
CASES, WE OURSELVES HAVE CONSIDERED THE EXTENT TO WHICH THEY
DISCONTINUED RACIALLY IDENTIFIABLE SCHOOLS.  SEE, E.G., GREEN V. COUNTY
SCHOOL BOARD OF NEW KENT COUNTY, SUPRA; WRIGHT V. COUNCIL OF THE CITY
OF EMPORIA, SUPRA.  FOR A PRINCIPAL END OF ANY DESEGREGATION REMEDY IS
TO ENSURE THAT IT IS NO LONGER "POSSIBLE TO IDENTIFY A 'WHITE SCHOOL'
OR A 'NEGRO SCHOOL.'"  SWANN, SUPRA, AT 18.  THE EVIL TO BE REMEDIED IN
THE DISMANTLING OF A DUAL SYSTEM IS THE "(RACIAL IDENTIFICATION OF THE
SYSTEM'S SCHOOLS."  GREEN, 391 U.S.,AT 435.  THE GOAL IS A SYSTEM
WHITOUT WHITE SCHOOLS OR NEGRO SCHOOLS--A SYSTEM WITH "JUST SCHOOLS." 
ID., AT 442.  A SCHOOL AUTHORITY'S REMEDIAL PLAN OR A DISTRICT COURT'S
REMEDIAL DECREE IS TO BE JUDGED BY ITS EFFECTIVENESS IN ACHIEVING THIS
END.  SEE SWANN, SUPRA, AT 25; DAVIS, SUPRA, AT 37; GREEN, SUPRA, AT
439. 

WE CAUTIONED IN SWANN, OF COURSE, THAT THE DISMANTLING OF A
SEGREGATED SCHOOL SYSTEM DOES NOT MANDATE ANY PARTICULAR RACIAL
BALANCE.  402 U.S.,AT 24.  WE ALSO CONCLUDED THAT A REMEDY UNDER WHICH
THERE WOULD REMAIN A SMALL NUMBER OF RACIALLY IDENTIFIABLE SCHOOLS WAS
ONLY PRESUMPTIVELY INADEQUATE AND MIGHT BE JUSTIFIED.  ID., AT 26.  BUT
THIS IS TOTALLY DIFFERENT CASE.  THE FLAW OF A DETROIT-ONLY DECREE IS
NOT THAT IT DOES NOT REACH SOME IDEAL DEGREE OF RACIAL BALANCE OR
MIXING.  IT SIMPLY DOES NOT PROMISE TO ACHIEVE ACTUAL DESEGREGATION AT
ALL.  IT IS ONE THING TO HAVE A SYSTEM WHERE A SMALL NUMBER OF STUDENTS
REMAIN IN RACIALLY IDENTIFIABLE SCHOOLS.  IT IS SOMETHING ELSE ENTIRELY
TO HAVE A SYSTEM WHERE ALL STUDENTS CONTINUE TO ATTEND SUCH SCHOOLS. 

THE CONTINUED RACIAL IDENTIFIABILITY OF THE DETROIT SCHOOLS UNDER A
DETROIT-ONLY REMEDY IS NOT SIMPLY A REFLECTION OF THEIR HIGH PERCENTAGE
OF NEGRO STUDENTS.  WHAT IS OR IS NOT A RACIALLY IDENTIFIABLE VESTIGE
OF DE JURE SEGREGATION MUST NECESSARILY DEPEND ON SEVERAL FACTORS.  CF.
KEYES, 413 U.S.,AT 196.  FOREMOST AMOND THESE SHOULD BE THE
RELATIONSHIP BETWEEN THE SCHOOLS IN QUESTION AND THE NEIGHBORING
COMMUNITY.  FOR THESE PURPOSES THE CITY OF DETROIT AND ITS SURROUNDING
SUBURBS MUST BE VIEWED AS A SINGLE COMMUNITY.  DETROIT IS CLOSELY
CONNECTED TO ITS SUBURBS IN MANY WAYS, AND THE METROPOLITAN AREA IS
VIEWED AS A SINGLE COHESIVE UNIT BY ITS RESIDENTS.  ABOUT 40% OF THE
RESIDENTS OF THE TWO SUBURBAN COUNTIES INCLUDED IN THE DESEGREGATION
PLAN WORK IN WAYNE COUNTY, IN WHICH DETROIT IS SITUATED.  MANY
RESIDENTS OF THE CITY WORK IN THE SUBURBS.  THE THREE COUNTIES
PARTICIPATE IN A WIDE VARIETY OF COOPERATIVE GOVERNMENTAL VENTURES ON A
METROPOLITAN-WIDE BASIS, INCLUDING A METROPOLITAN TRANSIT SYSTEM, PARK
AUTHORITY, WATER AND SEWER SYSTEM, AND COUNCIL OF GOVERNMENTS.  THE
FEDERAL GOVERNMENT HAS CLASSIFIED THE TRI-COUNTY AREA AS A STANDARD
METROPOLITAN STATISTICAL AREA, INDICATING THAT IT IS AN AREA OF
"ECONOMIC AND SOCIAL INTEGRATION."  UNITED STATES V. CONNECTICUT NAT.
BANK, ANTE, AT 670. 

UNDER A DETROIT-ONLY DECREE, DETROIT'S SCHOOLS WILL CLEARLY REMAIN
RACIALLY IDENTIFIABLE IN COMPARISON WITH NEIGHBORING SCHOOLS IN THE
METROPOLITAN COMMUNITY.  SCHOOLS WITH 65% AND MORE NEGRO STUDENTS WILL
STAND IN SHARP AND OBVIOUS CONTRAST TO SCHOOLS IN NEIGHBORING DISTRICTS
WITH LESS THEN 2% NEGRO ENROLLMENT.  NEGRO STUDENTS WILL CONTINUE TO
PERCEIVE THEIR SCHOOLS AS SEGREGATED EDUCATIONAL FACILITIES AND THIS
PERCEPTION WILL ONLY BE INCREASED WHEN WHITES REACT TO A DETROIT-ONLY
DECREE BY FLEEING TO THE SUBURBS TO AVOID INTEGRATION.  SCHOOL DISTRICT
LINES, HOWEVER INNOCENTLY DRAWN, WILL SURELY BE PERCEIVED AS FENCES TO
SEPARATE THE RACES WHEN, UNDER A DETROIT-ONLY DECREE, WHITE PARENTS
WITHDRAW THEIR CHILDREN FROM THE DETROIT CITY SCHOOLS AND MOVE TO THE
SUBURBS IN ORDER TO CONTINUE THEM AN ALL-WHITE SCHO LS.  THE MESSAGE OF
THIS ACTION WILL NOT ESCAPE THE NEGRO CHILDREN IN THE CITY OF DETROIT. 
SEE WRIGHT, 407 U.S.,AT 466. 

IT WILL BE OF SCANT SIGNIFICANCE TO NEGRO CHILDREN WHO HAVE FOR
YEARS BEEN CONFIRMED BY DE JURE ACTS OF SEGREGATION TO A GROWING CORE
OF ALL-NEGRO SCHOOLS SURROUNDED BY A RING OF ALL-WHITE SCHOOLS THAT THE
NEW DIVIDING LINE BETWEEN THE RACES IS THE SCHOOL DISTRICT BOUNDARY. 

NOR CAN IT BE SAID THAT THE STATE IS FREE FROM ANY RESPONSIBILITY
FOR THE DISPARITY BETWEEN THE RACIAL MAKEUP OF DETROIT ANDITS
SURROUNDING SUBURBS.  THE STATE'S CREATION, THROUGH DE JURE ACTS OF
SEGREGATION, OF A GROWING CORE OF ALL-NEGRO SCHOOLS INEVITABLY ACTED AS
A MAGNET TO ATTRACT NEGROES TO THE AREAS SERVED BY SUCH SCHOOLS AND TO
DETER THEM FROM SETTLING EITHER IN OTHER AREAS OF THE CITY OR IN THE
SUBURBS.  BY THE SAME TOKEN, THE GROWING CORE OF ALL-NEGRO SCHOOLS
INEVITABLY HELPED DRIVE WHITES TO OTHER AREAS OF THE CITY OR IN THE
SUBURBS.  AS WE RECOGNIZED IN SWANN: 

"PEOPLE GRAVITATE TOWARD SCHOOL FACILITIES, JUST AS SCHOOLS ARE
LOCATED IN RESPONSE TO THE NEEDS OF PEOPLE.  THE LOCATION OF SCHOOLS
MAY THUS INFLUENCE THE PATTERNS OF RESIDENTIAL DEVELOPMENT OF A
METROPOLITAN AREA AND HAVE IMPORTANT IMPACT ON COMPOSITION OF INNER
CITY NEIGHBORHOODS.  . ..  (ACTION TAKEN) TO MAINTAIN THE SEPARATION OF
THE RACES WITH A MINIMUM DEPARTURE FROM THE FORMAL PRINCIPLES OF
'NEIGHBORHOOD ZONING' . . . DOES MORE THAN SIMPLY INFLUENCE THE SHORT
RUN COMPOSITION OF THE STUDENT BODY . . ..  IT MAY WELL PROMOTE
SEGREGATED RESIDENTIAL PATTERNS WHICH, WHEN COMBINED WITH 'NEIGHBORHOOD
ZONING,' FURTHER LOCK THE SCHOOL SYSTEM INTO THE MOLD OF SEPARATION OF
THE RACES.  UPON A PROPER SHOWING A DISTRICT COURT MAY CONSIDER THIS IN
FASHIONING A REMEDY."  402 U.S.,AT 20 - 21.  SEE ALSO KEYES, 413
U.S.,AT 202.  THE RIPPLING EFFECTS ON RESIDENTIAL PATTERNS CAUSED BY
PURPOSEFUL ACTS OF SEGREGATION DO NOT AUTOMATICALLY SUBSIDE AT THE
SCHOOL DISTRICT BORDER.  WITH RARE EXCEPTIONS, THESE EFFECTS NATURALLY
SPREAD THROUGH ALL THE RESIDENTIAL NEIGHBORHOODS WITHIN A METROPOLITAN
AREA.  SEE ID., AT 202 - 203. 

THE STATE MUST ALSO BEAR PART OF THE BLAME FOR THE WHITE FLIGHT TO
THE SUBURBS WHICH WOULD BE FORTHCOMING FROM A DETROIT-ONLY DECREE AND
WOULD RENDER SUCH A REMEDY EFFECTIVE.  HAVING CREATED A SYSTEM WHERE
WHITES AND NEGROES WERE INTENTIONALLY KEPT APART SO THAT THEY COULD NOT
BECOME ACCUSTOMED TO LEARNING TOGETHER, THE STATE IS RESPONSIBLE FOR
THE FACT THAT MANY WHITES WILL REACT TO THE DISMANTLING OF THAT
SEGREGATED SYSTEM BY ATTEMPTING TO FLEE TO THE SUBURBS.  INDEED, BY
LIMITING THE DISTRICT COURT TO A DETROIT-ONLY REMEDY AND ALLOWING THAT
FLIGHT TO THE SUBURBS TO SUCCEED, THE COURT TODAY ALLOWS THE STATE TO
PROFIT FROM ITS OWN WRONG AND TO PERPETUATE FOR YEARS TO COME THE
SEPARATION OF THE RACES IT ACHIEVED IN THE PAST BY PURPOSEFUL STATE
ACTION. 

THE MAJORITY ASSERTS, HOWEVER, THAT INVOLVEMENT OF OUTLYING
DISTRICTS WOULD DO VIOLENCE TO THE ACCEPTED PRINCIPLE THAT "THE NATURE
OF THE VIOLATION DETERMINES THE SCOPE OF THE REMEDY."  SWANN, 402
U.S.,AT 16.  SEE ANTE, AT 744 - 745.  NOT ONLY IS THE MAJORITY'S
ATTEMPT TO FIND IN THIS SINGLE PHRASE THE ANSWER TO THE COMPLEX AND
DIFFICULT QUESTIONS PRESENTED IN THIS CASE HOPELESSLY SIMPLISTIC, BUT
MORE IMPORTANT, THE COURT READS THESE WORDS IN A MANNER WHICH PERVERTS
THEIR OBVIOUS MEANING.  THE NATURE OF A VIOLATION DETERMINES THE SCOPE
OF THE REMEDY SIMPLY BECAUSE THE FUNCTION OF ANY REMEDY IS TO CURE THE
VIOLATION TO WHICH IT IS ADDRESSED.  IN SCHOOL SEGREGATION CASES, AS IN
OTHER EQUITABLE CAUSES, A REMEDY WHICH EFFECTIVELY CURES THE VIOLATION,
IS WHAT IS REQUIRED.  SEE GREEN, 391 U.S.,AT 439; DAVIS, 402 U.S.,AT
37.  NO MORE IS NECESSARY, BUT WE CAN TOLERATE NO LESS.  TO READ THIS
PRINCIPLE AS BARRING A DISTRICT COURT FROM IMPOSING THE ONLY EFFECTIVE
REMEDY FOR PAST SEGREGATION AND REMITTING THE COURT TO A PATENTLY
INEFFECTIVE ALTERNATIVE IS, IN MY VIEW, TO TURN A SIMPLE COMMONSENSE
RULE INTO A CRUEL AND MEANINGLESS PARADOX.  IRONICALLY, BY RULING OUT
AN INTERDISTRICT REMEDY, THE ONLY RELIEF WHICH PROMISES TO CURE
SEGREGATION IN THE DETROIT PUBLIC SCHOOLS, THE MAJORITY FLOUTS THE VERY
PRINCIPLE ON WHICH IT PURPORTS TO RELY. 

NOR SHOULD IT BE OF ANY SIGNIFICANCE THAT THE SUBURBAN SCHOOL
DISTRICTS WERE NOT SHOWN TO HAVE THEMSELVES TAKEN ANY DIRECT ACTION TO
PROMOTE SEGREGATION OF THE RACES.  GIVEN THE STATE'S BROAD POWERS OVER
LOCAL SCHOOL DISTRICTS, IT WAS WELL WITHIN THE STATE'S POWERS TO
REQUIRE THOSE DISTRICTS SURROUNDING THE DETROIT SCHOOL DISTRICT TO
PARTICIPATE IN A METROPOLITAN REMEDY.  THE STATE'S DUTY SHOULD BE NO
DIFFERENT HERE THAN IN CASES WHERE IT IS SHOWN THAT CERTAIN OF A
STATE'S VOTING DISTRICTS ARE MALAPPORTIONED IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  SEE REYNOLDS V. SIMS, 377 U.S. 533 (1964). 
OVERREPRESENTED ELECTORAL DISTRICTS ARE REQUIRED TO PARTICIPATE IN
REAPPORTIONMENT ALTHOUGH THEIR ONLY "PARTICIPATION" IN THE VIOLATION
WAS TO DO NOTHING ABOUT IT.  SIMILARLY ELECTORAL DISTRICTS WHICH
THEMSELVES MEET REPRESENTATION STANDARDS MUST FREQUENTLY BE REDRAWN AS
PART OF A REMEDY FOR OTHER OVER- AND UNDER-INCLUSIVE DISTRICTS.  NO
FINDING OF FAULT ON THE PART OF EACH ELECTORAL DISTRICT AND NO FINDING
OF A DISCRIMINATORY EFFECT ON EACH DISTRICT IS A PREREQUISITE TO ITS
INVOLVEMENT IN THE CONSTITUTIONALLY REQUIRED REMEDY.  BY THE SAME
LOGIC, NO FINDING OF FAULT ON THE PART OF THE SUBURBAN SCHOOL DISTRICTS
IN THIS CASE AND NO FINDING OF A DISCRIMINATORY EFFECT ON EACH DISTRICT
SHOULD BE PREREQUISITE TO THEIR INVOLVEMENT IN THE CONSTITUTIONALLY
REQUIRED REMEDY. 

IT IS THE STATE, AFTER ALL, WHICH BEARS THE RESPONSIBILITY UNDER
BROWN OF AFFORDING A NONDISCRIMINATORY SYSTEM OF EDUCATION.  THE STATE,
OF COURSE, IS ORDINARILY FREE TO CHOOSE ANY DECENTRALIZED FRAMEWORK FOR
EDUCATION IT WISHES, SO LONG AS IT FULFILLS THAT FOURTEENTH AMENDMENT
OBLIGATION.  BUT THE STATE SHOULD NO MORE BE ALLOWED TO HIDE BEHIND ITS
DELEGATION AND COMPARTMENTALIZATION OF SCHOOL DISTRICTS TO AVOID ITS
CONSTITUTIONAL OBLIGATIONS TO ITS CHILDREN THAN IT COULD HIDE BEHIND
ITS POLITICAL SUBDIVISIONS TO AVOID ITS OBLIGATIONS TO ITS VOTERS. 
REYNOLDS V. SIMS, SUPRA, AT 575.  SEE ALSO GOMILLION V. LIGHTFOOT, 364
U.S. 339 (1960). 

IT IS A HOLLOW REMEDY INDEED WHERE "AFTER SUPPOSED 'DESEGREGATION'
THE SCHOOLS REMAINED SEGREGATED IN FACT."  HOBSEN V. HANSEN, 269
F.SUPP.  401, 495 (DDC 1967).  WE MUST DO BETTER THAN "'SUBSTITUTE . .
. ONE SEGREGATED SCHOOL SYSTEM FOR ANOTHER SEGREGATED SCHOOL SYSTEM.'" 
WRIGHT, 407 U.S.,AT 456.  TO SUGGEST, AS DOES THE MAJORITY, THAT A
DETROIT-ONLY PLAN SOMEHOW REMEDIES THE EFFECTS OF DE JURE SEGREGATION
OF THE RACES IS, IN MY VIEW, TO MAKE A SOLEMN MOCKERY OF BROWN I'S
HOLDING THAT SEPARATE EDUCATIONAL FACILITIES ARE INHERENTLY UNEQUAL AND
OF SWANN'S UNEQUIVOCAL MANDATE THAT THE ANSWER TO DE JURE SEGREGATION
IS THE GREATEST POSSIBLE DEGREE OF ACTUAL DESEGREGATION. 

        III 

ONE FINAL SET OF PROBLEMS REMAINS TO BE CONSIDERED.  WE RECOGNIZED
IN BROWN II, AND HAVE RE-EMPHASIZED EVER SINCE, THAT IN FASHIONING
RELIEF IN DESEGREGATION CASES, "THE COURTS WILL BE GUIDED BY EQUITABLE
PRINCIPLES.  TRADITIONALLY, EQUITY HAS BEEN CHARACTERIZED BY A
PRACTICAL FLEXIBILITY IN SHAPING ITS REMEDIES AND BY A FACILITY FOR
ADJUSTING AND RECONCILING PUBLIC AND PRIVATE NEEDS."  BROWN II, 349
U.S.AT 300.  SEE ALSO SWANN, SUPRA. 

THOUGH NOT RESTING ITS HOLDING ON THIS POINT, THE MAJORITY SUGGESTS
THAT VARIOUS EQUITABLE CONSIDERATIONS MILITATE AGAINST INTERDISTRICT
RELIEF.  THE COURT, FOR EXAMPLE, REFERS TO FINANCING AND ADMINISTRATIVE
PROBLEMS, THE LOGISTICAL PROBLEMS ATTENDING LARGE-SCALE TRANSPORTATION
OF STUDENTS, AND THE PROSPECT OF THE DISTRICT COURT'S BECOMING A "DE
FACTO 'LEGISLATIVE AUTHORITY'" AND "'SCHOOL SUPERINTENDENT' FOR THE
ENTIRE AREA."  ANTE, AT 743 - 744.  THE ENTANGLING WEB OF PROBLEMS
WOVEN BY THE COURT, HOWEVER, APPEARS ON FURTHER CONSIDERATION TO BE
CONSTRUCTED OF THE FLIMIEST OF THREADS.     I DEAL FIRST WITH THE LAST
OF THE PROBLEMS POSED BY THE COURT--THE SPECTER OF THE DISTRICT COURT
QUA "SCHOOL SUPERINTENDENT" AND "LEGISLATIVE AUTHORITY"--FOR ANALYSIS
OF THIS PROBLEM HELPS PUT THE OTHER ISSUES IN PROPER PERSPECTIVE.  OUR
CASES, OF COURSE, MAKE CLEAR THAT THE INITIAL RESPONSIBILITY FOR
DEVISING AN ADEQUATE DESEGREGATION PLAN BELONGS WITH SCHOOL
AUTHORITIES, NOT WITH THE DISTRICT COURT.  THE COURT'S PRIMARY ROLE IS
TO REVIEW THE ADEQUACY OF THE SCHOOL AUTHORITIES' EFFORTS AND TO
SUBSTITUTE ITS OWN PLAN ONLY IF AND TO THE EXTENT THEY DEFAULT.  SEE
SWANN, 402 U.S.,AT 16; GREEEN, 391 U.S.,AT 439.  CONTRARY TO THE
MAJORITY'S SUGGESTIONS, THE DISTRICT JUDGE IN THIS CASE HAS
CONSISTENTLY ADHERED TO THESE PROCEDURES AND THERE IS EVERY INDICATION
THAT HE WOULD CONTINUE TO DO SO.  AFTER FINDING DE JURE SEGREGATION THE
COURT ORDERED THE PARTIES TO SUBMIT PROPOSED DETROIT-ONLY PLANS.  THE
STATE DEFENDANTS WERE ALSO ORDERED TO SUBMIT A PROPOSED METROPOLITAN
PLAN EXTENDING BEYOND DETROIT'S BOUNDARIES.  AS THE DISTRICT COURT
STATED, "THE STATE DEFENDANTS . . . BEAR THE INITIAL BURDEN OF COMING
FORWARD WITH A PROPOSAL THAT PROMISES TO WORK."  THE STATE DEFENDANTS
DEFAULTED IN THIS OBLIGATION, HOWEVER.  RATHER THAN SUBMIT A COMPLETE
PLAN, THE STATE BOARD OF EDUCATION SUBMITTED SIX PROPOSALS, NONE OF
WHICH WAS IN FACT A DESEGREGATION PLAN. 

IT WAS ONLY UPON THIS DEFAULT THAT THE DISTRICT COURT BEGAN TO TAKE
STEPS TO DEVELOP ITS OWN PLAN.  EVEN THEN THE DISTRICT COURT MAXIMIZED
SCHOOL AUTHORITY PARTICIPATION BY APPOINTING A PANEL REPRESENTING BOTH
PLAINTIFFS AND DEFENDANTS TO DEVELOP A PLAN.  PET. APP. 99A - 100A. 
FUTHERMORE, THE DISTRICT COURT STILL LEFT THE STATE DEFENDANTS THE
INITIAL RESPONSIBILITY FOR DEVELOPING BOTH INTERIM AND FINAL FINANCIAL
AND ADMINISTRATIVE ARRANGEMENTS TO IMPLEMENT INTERDISTRICT RELIEF. 
ID., AT 104A - 105A.  THE COURT OF APPEALS FURTHER PROTECTED THE
INTERESTS OF LOCAL SCHOOL AUTHORITIES BY ENSURING THAT THE OUTLYING
SUBURBAN DISTRICTS COULD FULLY PARTICIPATE IN THE PROCEEDINGS TO
DEVELOP A METROPOLITAN REMEDY. 

THESE PROCESSES HAVE NOT BEEN ALLOWED TO RUN THEIR COURSE.  NO FINAL
DESEGREGATION PLAN HAS BEEN PROPOSED BY THE PANEL OF EXPERTS, LET ALONE
APPROVED BY THE DISTRICT COURT.  WE DO NOT KNOW IN ANY DETAIL HOW MANY
STUDENTS WILL BE TRANSPORTED TO EFFECT A METROPOLITAN REMEDY, AND WE DO
NOT KNOW HOW LONG OR HOW FAR THEY WILL HAVE TO TRAVEL.  NO
RECOMMENDATIONS HAVE YET BEEN SUBMITTED BY THE STATE DEFENDANTS ON
FINANCIAL AND ADMINISTRATIVE ARRANGEMENTS.  IN SUM, THE PRACTICALITY OF
A FINAL METROPOLITAN PLAN IS SIMPLY NOT BEFORE US AT THE PRESENT TIME. 
SINCE THE STATE AND THE PANEL OF EXPERTS HAVE NOT YET HAD AN
OPPORTUNITY TO COME UP WITH A WORKABLE REMEDY, THERE IS NO FOUNDATION
FOR THE MAJORITY'S SUGGESTION OF THE IMPRACTICALITY OF INTERDISTRICT
RELIEF.  FURTHERMORE, THERE IS NO BASTS WHATEVER FOR ASSUMING THAT THE
DISTRICT COURT WILL INEVITABLY BE FORCED TO ASSUME HE ROLE OF
LEGISLATURE OR SCHOOL SUPERINTENDENT.  /20/  WERE WE TO HOLD THAT IT
WAS ITS CONSTITUTIONAL DUTY TO DO SO, THERE IS EVERY INDICATION THAT
THE STATE OF MICHIGAN WOULD FULFILL ITS OBLIGATION AND DEVELOP A PLAN
WHICH IS WORKABLE, ADMINISTRABLE, FINANCIALLY SOUND, AND, MOST
IMPORTANT, IN THE BEST INTEREST OF QUALITY EDUCATION FOR ALL OF THE
CHILDREN IN THE DETROIT METROPOLITAN AREA. 

SINCE THE COURT CHOOSES, HOWEVER, TO SPECULATE ON THE FEASIBILITY OF
A METROPOLITAN PLAN, I FEEL CONSTRAINED TO COMMENT ON THE PROBLEM AREAS
IT HAS TARGETED.  TO BEGIN WITH, THE MAJORITY'S QUESTIONS CONCERNING
THE PRACTICALITY OF CONSOLIDATION OF SCHOOL DISTRICTS NEED NOT GIVE US
PAUSE.  THE STATE CLEARLY HAS THE POWER, UNDER EXISTING LAW, TO EFFECT
A CONSOLIDATION IF IT IS ULTIMATELY DETERMINED THAT THIS OFFERS THE
BEST PROSPECT FOR A WORKABLE AND STABLE DESEGREGATION PLAN.  SEE SUPRA,
AT 796 - 797.  AND GIVEN THE 1,000 OR SO CONSOLIDATIONS OF SCHOOL
DISTRICTS WHICH HAVE TAKEN PLACE IN THE PAST, IT IS HARD TO BELIEVE
THAT THE STATE HAS NOT ALREADY DEVISED MEANS OF SOLVING MOST, IF NOT
ALL, OF THE PRACTICAL PROBLEMS WHICH THE COURT SUGGESTS CONSOLIDATION
WOULD ENTAIL. 

FURTHERMORE, THE MAJORITY IGNORES LONG-ESTABLISHED MICHIGAN
PROCEDURES UNDER WHICH SCHOOL DISTRICTS MAY ENTER INTO CONTRACTUAL
AGREEMENTS TO EDUCATE THEIR PUPILS IN OTHER DISTRICTS USING STATE OR
LOCAL FUNDS TO FINANCE NON-RESIDENT EDUCATION.  /21/  SUCH AGREEMENTS
COULD FROM AN EASILY ADMINISTRABLE FRAMEWORK FOR INTERDISTRICT RELIEF
SHORT OF OUTRIGHT CONSOLIDATION OF THE SCHOOL DISTRICTS.  THE DISTRICT
COURT FOUND THAT INTERDISTRICT PROCEDURES LIKE THESE WERE FREQUENTLY
USED TO PROVIDE SPECIAL EDUCATIONAL SERVICES FOR HANDICAPPED CHILDREN,
AND EXTENSIVE STATUTORY PROVISION IS ALSO MADE FOR THEIR USE IN
VOCATIONAL EDUCATION.  /22/  SURELY IF SCHOOL DISTRICTS ARE WILLING TO
ENGAGE IN INTERDISTRICT PROGRAMS TO HELP THOSE UNFORTUNATE CHILDREN
CRIPPLED BY PHYSICAL OR MENTAL HANDICAPS, SCHOOL DISTRICTS CAN BE
REQUIRED TO PARTICIPATE IN AN INTERDISTRICT PROGRAM TO HELP THOSE
CHILDREN IN THE CITY OF DETROIT WHOSE EDUCATIONS AND VERY FUTURES HAVE
BEEN CRIPPLED BY PURPOSEFUL STATE SEGREGATION. 

ALTHOUGH THE MAJORITY GIVES THIS LAST MATTER ONLY FLEETING
REFERENCE, IT IS PLAIN THAT ONE OF THE BASIC EMOTIONAL AND LEGAL ISSUES
UNDERLYING THESE CASES CONCERNS THE PROPRIETY OF TRANSPORTATION OF
STUDENTS TO ACHIEVE DESEGREGATION.  WHILE OTHERS MAY HAVE RETREATED
FROM ITS STANDARDS, SEE, E.G., KEYES, 413 U.S.,AT 217 (POWELL, J.,
CONCURRING IN PART AND DISSENTING IN PART), I CONTINUE TO ADHERE TO THE
GUIDELINES SET FORTH IN SWANN ON THIS ISSUE.  SEE 402 U.S.,AT 29 - 31. 
AND THOUGH NO FINAL DESEGREGATION PLAN IS PRESENTLY BEFORE US, TO THE
EXTENT THE OUTLINE OF SUCH A PLAN IS NOW VISIBLE, IT IS CLEAR THAT THE
TRANSPORTATION IT WOULD ENTAIL WILL BE FULLY CONSISTENT WITH THESE
GUIDELINES. 

FIRST OF ALL, THE METROPOLITAN PLAN WOULD NOT INVOLVE THE BUSING OF
SUBSTANTIALLY MORE STUDENTS THAN ALREADY RIDE BUSES.  THE DISTRICT
COURT FOUND THAT STATEWIDE, 35% - 40% OF ALL STUDENTS ALREADY ARRIVE AT
SCHOOL ON A BUS.  IN THOSE SCHOOL DISTRICTS IN THE TRI-COUNTY DETROIT
METROPOLITAN AREA ELIGIBLE FOR STATE REIMBURSEMENT OF TRANSPORTATION
COSTS, 42% - 52% OF ALL STUDENTS RODE BUSES TO SCHOOL.  IN THE TRI
COUNTY AREAS AS A WHOLE, APPROXIMATELY 300,000 PUPILS ARRIVED AT SCHOOL
ON SOME TYPE OF BUS, WITH ABOUT 60,000 OF THESE APPARENTLY USING
REGULAR PUBLIC TRANSIT.  IN COMPARISON, THE DESEGREGATION PLAN,
ACCORDING TO ITS PRESENT ROUGH OUTLINE, WOULD INVOLVE THE
TRANSPORTATION OF 310,000 STUDENTS, ABOUT 40% OF THE POPULATION WITHIN
THE DESEGREGATION AREA. 

WITH RESPECT TO DISTANCE AND AMOUNT OF TIME TRAVELLED, 17 OF THE
OUTLYING SCHOOL DISTRICTS INVOLVED IN THE PLAN ARE CONTIGUOUS TO THE
DETROIT DISTRICT.  THE REST ARE ALL WITHIN 8 MILES OF THE DETROIT CITY
LIMITS.  THE TRIAL COURT, IN DEFINING THE DESEGREGATION AREA, PLACED A
CEILING OF 40 MINUTES ONE WAY ON THE AMOUNT OF TRAVEL TIME, AND MANY
STUDENTS WILL OBVIOUSLY TRAVEL FOR FAR SHORTER PERIODS.  AS TO
DISTANCE, THE AVERAGE STATEWIDE BUS TRIP IS 8 1/2 MILES ONE WAY, AND IN
SOME PARTS OF THE TRI-COUNTY AREA, STUDENTS ALREADY TRAVEL FOR ONE AND
A QUARTER HOURS OR MORE EACH WAY.  IN SUM, WITH REGARD TO BOTH THE
NUMBER OF STUDENTS TRANSPORTED AND THE TIME AND DISTANCES INVOLVED, THE
OUTLINED DESEGRAGATION PLAN "COMPARES FAVORABLY WITH THE TRANSPORTATION
PLAN PREVIOUSLY OPERATED . . .."  SWANN, SUPRA, AT 30. 

AS FAR AS ECONOMICS ARE CONCERNED, A METROPOLITAN REMEDY WOULD
ACTUALLY BE MORE SENSIBLE THAN A DETROIT-ONLY REMEDY.  BECAUSE OF PRIOR
TRANSPORTATION AID RESTRICTIONS, SEE SUPRA, AT 791, DETROIT LARGELY
RELIED ON PUBLIC TRANSPORT, AT STUDENT EXPENSE, FOR THOSE STUDENTS WHO
LIVED TOO FAR AWAY TO WALK TO SCHOOL.  SINCE NO INVENTORY OF SCHOOL
BUSES EXISTED, A DETROIT-ONLY PLAN WAS ESTIMATED TO REQUIRE THE
PURCHASE OF 900 BUSES TO EFFECTUATE THE NECESSARY TRANSPORTATION.  THE
TRI-COUNTY AREA, IN CONTRAST, ALREADY HAS AN INVENTORY 1,800 BUSES,
MANY OF WHICH ARE NOW UNDER-UTILIZED.  SINCE INCREASED UTILIZATION OF
THE EXISTING INVENTORY CAN TAKE UP MUCH OF THE INCREASE IN
TRANSPORTATION INVOLVED IN THE INTERDISTRICT REMEDY, THE DISTRICT COURT
FOUND THAT ONLY 350 ADDITIONAL BUSES WOULD PROBABLY BE NEEDED, ALMOST
TWO-THIRDS FEWER THAN A DETROIT-ONLY REMEDY.  OTHER FEATURES OF AN
INTERDISTRICT REMEDY BESPEAK ITS PRACTICALITY, SUCH AS THE POSSIBILITY
OF PAIRING UP NEGRO SCHOOLS NEAR DETROIT'S BOUNDARY WITH NEARBY WHITE
SCHOOLS ON THE OTHER SIDE OF THE PRESENT SCHOOL DISTRICT LINE. 

SOME DISRUPTION, OF COURSE, IS THE INEVITABLE PRODUCT OF ANY
DESEGREGATION DECREE, WHETHER IT OPERATES WITHIN ONE DISTRICT OR ON AN
INTERDISTRICT BASIS.  AS WE SAID IN SWANN, HOWEVER: 

     "ABSENT A CONSTITUTIONAL VIOLATION THERE WOULD BE NO BASIS FOR

  JUDICIALLY ORDERING ASSIGNMENT OF STUDENTS ON A RACIAL BASIS. 

  ALL THINGS BEING EQUAL, WITH NO HISTORY OF DISCRIMINATION, IT

  MIGHT WELL BE DESIRABLE TO ASSIGN PUPILS TO SCHOOLS NEAREST THEIR

  HOMES.  BUT ALL THINGS ARE NOT EQUAL IN A SYSTEM THAT HAS BEEN

  DELIBERATELY CONSTRUCTED AND MAINTAINED TO ENFORCE RACIAL

  SEGREGATION.  THE REMEDY FOR SUCH SEGREGATION MAY BE

  ADMINISTRATIVELY AWKWARD, INCONVENIENT, AND EVEN BIZARRE IN SOME

  SITUATIONS AND MAY IMPOSE BURDENS ON SOME; BUT ALL AWKWARDNESS

  AND INCONVENIENCE CANNOT BE AVOIDED . . .."  402 U.S., AT 28. 

DESEGREGATION IS NOT AND WAS NEVER EXPECTED TO BE AN EASY TASK. 
RACIAL ATTITUDES INGRAINED IN OUR NATION'S CHILDHOOD AND ADOLESCENCE
ARE NOT QUICKLY THROWN ASIDE IN ITS MIDDLE YEARS.  BUT JUST AS THE
INCONVENIENCE OF SOME CANNOT BE ALLOWED TO STAND IN THE WAY OF THE
RIGHTS OF OTHERS, SO PUBLIC OPPOSITION, NO MATTER HOW STRIDENT, CANNOT
BE PERMITTED TO DIVERT THIS COURT FROM THE ENFORCEMENT OF THE
CONSTITUTIONAL PRINCIPLES AT ISSUE IN THIS CASE.  TODAY'S HOLDING, I
FEAR, IS MORE A REFLECTION OF A PERCEIVED PUBLIC MOOD THAT WE HAVE GONE
FAR ENOUGH IN ENFORCING THE CONSTITUTION'S GUARANTEE OF EQUAL JUSTICE
THAN IT IS THE PRODUCT OF NEUTRAL PRINCIPLES OF LAW.  IN THE SHORT RUN,
IT MAY SEEM TO BE THE EASIER COURSE TO ALLOW OUR GREAT METROPOLITAN
AREAS TO BE DIVIDED UP EACH INTO TWO CITIES--ONE WHITE, THE OTHER BLACK
-BUT IT IS A COURSE, I PREDICT, OUR PEOPLE WILL ULTIMATELY REGRET.  I
DISSENT. 

**DFN 

/1/  CONTRARY TO THE COURT'S CHARACTERIZATION, THE USE OF RACIAL
RATIOS IN THIS CASE IN NO WAY DIFFERED FROM THAT IN SWANN V. CHARLOTTE
MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1 (1971).  HERE, AS THERE,
MATHEMATICAL RATIOS WERE USED SIMPLY AS "A STARTING POINT IN THE
PROCESS OF SHAPING A REMEDY, RATHER THAN AN INFLEXIBLE REQUIREMENT." 
ID., AT 25.  IT MAY BE EXPECTED THAT A FINAL DESEGREGATION PLAN IN THIS
CASE WOULD DEVIATE FROM A PURE MATHEMATICAL APPROACH.  INDEED, THE
DISTRICT COURT'S MOST RECENT ORDER APPOINTING A PANEL OF EXPERTS TO
DRAFT AN INTERDISTRICT PLAN REQUIRES ONLY THAT THE PLAN BE DESIGNED "TO
ACHIEVE THE GREATEST DEGREE OF ACTUAL DESEGREGATION . . . (WITHIN THE
LIMITATIONS OF REASONABLE TRAVEL TIME AND DISTANCE FACTORS."  345
F.SUPP.  914, 918 (ED MICH. 1972).  CF. 402 U.S.,AT 23. 

/2/  IT DOES NOT APPEAR THAT EVEN THE MAJORITY PLACES ANY REAL
WEIGHT ON THIS CONSIDERATION SINCE IT RECOGNIZES THAT INTERDISTRICT
RELIEF WOULD BE PROPER WHERE A CONSTITUTIONAL VIOLATION WITHIN ONE
DISTRICT PRODUCES A SIGNIFICANT SEGREGATIVE EFFECT IN ANOTHER DISTRICT,
SEE ANTE, A 744 - 745, THUS ALLOWING INTERDISTRICT RELIEF TO TOUCH
DISTRICTS WHICH HAVE NOT THEMSELVES VIOLATED THE CONSTITUTION. 

/3/  SEE MICH. COMP. LAWS 388.851 (1971). 

/4/  SEE MICH. COMP. LAWS 388.1179. 

/5/  SEE MICH. COMP. LAWS 388.629 AND 340.600. 

/6/  SEE MICH. COMP. LAWS 388.611.  THE STATE CONTRIBUTED AN AVERAGE
OF 34% OF THE OPERATING BUDGETS OF THE 54 SCHOOL DISTRICTS INCLUDED IN
THE ORIGINAL PROPOSED DESEGREGATION AREA.  IN 11 OF THESE DISTRICTS,
STATE CONTRIBUTIONS EXCEEDED 50% OF THE OPERATING BUDGETS. 

/7/  SEE, E.G., ID., 340.575.  SEE ALSO 1949 - 1950 REPORT OF THE
ATTORNEY GENERAL 104 (ROTH); VOL. 1, 1955 REPORT OF THE ATTORNEY
GENERAL 561 (KAVANAGH); 1961 - 1962 REPORT OF THE ATTORNEY GENERAL 533
(KELLEY). 

/8/  SEE MICH. COMP. LAWS 211.34 AND 340.681. 

/9/  ID., 340.569. 

/10/  ID., 257.811 (C), 340.361, 340.781, 340.782, 388.371. 

/11/  ID., 340.575. 

/12/  ID., 388.1171. 

/13/  ID., 340.887 (1). 

/14/  OP. ATTY. GEN. NO. 4705 (JULY 7, 1970), 1969 - 1970 REPORT OF
THE ATTORNEY GENERAL 156 (KELLEY). 

/15/  SEE MICH. COMP. LAWS 340.253. 

/16/  SEE GENERALLY ID., 340.401 - 340.415 (CONSOLIDATIONS); 340.431
- 340.449 (ANNEXATIONS). 

/17/  SEE 1 MICHIGAN SENATE JOURNAL, 1968, P. 423. 

/18/  SEE GENERALLY MICH. COMP. LAWS 340.461 - 340.468. 

/19/  DESPITE MR. JUSTICE STEWART'S CLAIM TO THE CONTRARY, ANTE, AT
756 N.2, OF HIS CONCURRING OPINION, THE RECORD FULLY SUPPORTS MY
STATEMENT THAT NEGRO STUDENTS WERE INTENTIONALLY CONFINED TO A CORE OF
NEGRO SCHOOLS WITHIN THE CITY OF DETROIT.  SEE, E.G., SUPRA, AT 784 -
785, 790 - 792.  INDEED, MR. JUSTICE STEWART ACKNOWLEDGES THAT
INTENTIONAL ACTS OF SEGREGATION BY THE STATE HAVE SEPARATED WHITE AND
NEGRO STUDENTS WITHIN THE CITY, AND THAT THE RESULTING CORE OF ALL
NEGRO SCHOOLS HAS GROWN TO ENCOMPASS MOST OF THE CITY.  IN SUGGESTING
THAT MY APPROVAL OF AN INTERDISTRICT REMEDY RESTS ON A FURTHER
CONCLUSION THAT THE STATE OR POLITICAL SUBDIVISIONS HAVE BEEN
RESPONSIBLE FOR THE INCREASING PERCENTAGE OF NEGRO STUDENTS IN DETROIT,
MY BROTHER STEWART MISCONCEIVES THE THRUST OF HIS DISSENT.  IN LIGHT OF
THE HIGH CONCENTRATION OF NEGRO STUDENTS IN DETROIT, THE DISTRICT
JUDGE'S FINDING THAT A DETROIT-ONLY REMEDY CANNOT EFFECTIVELY CURE THE
CONSTITUTIONAL VIOLATION WITHIN THE CITY SHOULD BE ENOUGH TO SUPPORT
THE CHOICE OF AN INTERDISTRICT REMEDY.  WHETHER A STATE ACTION IS
RESPONSIBLE FOR THE GROWTH OF THE CORE OF ALL-NEGRO SCHOOLS IN DETROIT
IS, IN MY VIEW, QUITE IRRELEVANT.     THE DIFFICULTY WITH MR. JUSTICE
STEWART'S POSITION IS THAT HE, LIKE THE COURT, CONFUSES THE INQUIRY
REQUIRED TO DETERMINE WHETHER THERE HAS BEEN A SUBSTANTIVE
CONSTITUTIONAL VIOLATION WITH THAT NECESSARY TO FORMULATE AN
APPROPRIATE REMEDY ONCE A CONSTITUTIONAL VIOLATION HAS BEEN SHOWN. 
WHILE A FINDING OF STATE ACTION IS OF COURSE A PREREQUISITE TO FINDING
A VIOLATION, WE HAVE NEVER HELD THAT AFTER UNCONSTITUTIONAL STATE
ACTION HAS BEEN SHOWN, THE DISTRICT COURT AT THE REMEDIAL STAGE MUST
ENGAGE IN A SECOND INQUIRY TO DETERMINE WHETHER ADDITIONAL STATE ACTION
EXISTS TO JUSTIFY A PARTICULAR REMEDY.  RATHER, ONCE A CONSTITUTIONAL
VIOLATION HAS BEEN SHOWN, THE DISTRICT COURT IS DUTY-BOUND TO FORMULATE
AN EFFECTIVE REMEDY AND, IN SO DOING, THE COURT IS ENTITLED--INDEED, IT
IS REQUIRED--TO CONSIDER ALL THE FACTUAL CIRCUMSTANCES RELEVANT TO THE
FRAMING OF AN EFFECTIVE DECREE.  THUS, IN SWANN WE HELD THAT THE
DISTRICT COURT MUST TAKE INTO ACCOUNT THE EXISTENCE OF EXTENSIVE
RESIDENTIAL SEGREGATION IN DETERMINING WHETHER A RACIALLY NEUTRAL
"NEIGHBORHOOD SCHOOL" ATTENDANCE PLAN WAS AN ADEQUATE DESEGREGATION
REMEDY, REGARDLESS OF WHETHER THIS RESIDENTIAL SEGREGATION WAS CAUSED
BY STATE ACTION.  SO HERE, THE DISTRICT COURT WAS REQUIRED TO CONSIDER
THE FACTS THAT THE DETROIT SCHOOL SYSTEM WAS ALREADY PREDOMINANTLY
NEGRO AND WOULD LIKELY BECOME ALL-NEGRO UPON ISSUANCE OF A DETROIT-ONLY
DECREE IN FRAMING AN EFFECTIVE DESEGREGATION REMEDY, REGARDLESS OF
STATE RESPONSIBILITY FOR THIS SITUATION. 

/20/  IN FACT, THE DISTRICT COURT REMARKED "THAT THIS COURT'S TASK
IS TO ENFORCE CONSTITUTIONAL RIGHTS NOT TO ACT AS A SCHOOLMASTER; THE
COURT'S TASK IS TO PROTECT THE CONSTITUTIONAL RIGHTS HERE FOUND
VIOLATED WITH AS LITTLE INTRUSION INTO THE EDUCATION PROCESS AS
POSSIBLE.  THE COURT'S OBJECTIVE IS TO ESTABLISH THE MINIMUM
CONSTITUTIONAL FRAMEWORK WITHIN WHICH THE SYSTEM OF PUBLIC SCHOOLS MAY
OPERATE NOW AND HEREAFTER IN A RACIALLY UNIFIED, NON-DISCRIMINATORY
FASHION.  WITHIN THAT FRAMEWORK THE BODY POLITIC, EDUCATORS, PARENTS,
AND MOST PARTICULARLY THE CHILDREN MUST BE GIVEN THE MAXIMUM
OPPORTUNITY TO EXPERIMENT AND SECURE A HIGH QUALITY, AND EQUAL,
EDUCATIONAL OPPORTUNITY."  PET. APP. 82A. 

/21/  SEE, E.G., MICH. COMP. LAWS 340.69, 340.121 (D), 340.359,
340.582, 340.582A, 340.590. 

/22/  SEE ID., 340.330 - 340.330U. 

FRANK J. KELLEY, ATTORNEY GENERAL OF MICHIGAN, ARGUED THE CAUSE FOR
PETITIONERS IN NO. 73 - 434.  WITH HIM ON THE BRIEF WERE ROBERT A.
DERENGOSKI, SOLICITOR GENERAL, AND EUGENE KRASICKY, GERALD F. YOUNG,
GEORGE L. MCCARGAR, AND THOMAS F. SCHIMPF, ASSISTANT ATTORNEYS
GENERAL.  WILLIAM M. SAXTON ARGUED THE CAUSE FOR PETITIONERS IN NOS. 73
- 435 AND 73 - 436.  WITH HIM ON THE BRIEF IN NO. 73 - 435 WERE JOHN B.
WEAVER, ROBERT M. VERCRUYSSE, AND XHAFER ORHAN.  DOUGLAS H. WEST FILED
A BRIEF FOR PETITIONER IN NO. 73 - 436. 

J. HAROLD FLANNERY AND NATHANIEL R. JONES ARGUED THE CAUSE FOR
RESPONDENTS IN ALL CASES.  WITH THEM ON THE BRIEF FOR RESPONDENTS
BRADLEY ET AL. WERE JACK GREENBERG, NORMAN CHACHKIN, AND LOUIS R.
LUCAS.  GEORGE T. ROUMELL, JR., AND C. NICHOLAS REVELOS FILED A BRIEF
FOR RESPONDENTS BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF CITY OF
DETROIT ET AL. JOHN BRUFF AND WILLIAM ROSS FILED A BRIEF FOR RESPONDENT
PROFESSIONAL PERSONNEL OF VAN DYKE.  ROBERT J. LORD FILED A BRIEF FOR
RESPONDENTS GREEN ET AL. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WAS ASSISTANT
ATTORNEY GENERAL POTTINGER. 

BRIEFS OF AMICI CURIAE URGIN REVERSAL WERE FILED BY THEODORE L.
SENDAK, ATTORNEY GENERAL, DONALD P. BOGARD, DEPUTY ATTORNEY GENERAL,
AND WILLIAM F. HARVEY FOR THE STATE OF INDIANA; BY LEWIS C. BOSE AND
WILLIAM M. EVANS FOR THE METROPOLITAN SCHOOL DISTRICT OF LAWRENCE
TOWNSHIP, INDIANA, ET AL.; BY RICHARD D. WAGNER AND RICHARD L. BROWN
FOR THE TOWN OF SPEEDWAY, INDIANA, ET AL.; AND BY HAROLD H. FUHRMAN FOR
THE NATIONAL SUBURBAN LEAGUE, LTD. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY LEONARD P.
STRICKMAN FOR THE CITY OF BOSTON, MASSACHUSETTS; BY ALEXANDER A.
GOLDFARB FOR THE CITY OF HARTFORD, CONNECTICUT; BY SANFORD JAY ROSEN
FOR THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND; AND BY
INTER-FAITH CENTERS FOR RACIAL JUSTICE, INC. 

BRIEFS OF AMICI CURIAE WERE FILED BY CHARLES F. CLIPPERT, CHARLES E.
KELLER, THOMAS H. SCHWARZE, JOHN F. SHANTZ, RAYMOND MCPETERS, WALTER J.
GUTH, JR., RAYMOND G. GLIME, TONY FERRIS, AND PERRY CHRISTY FOR
BLOOMFIELD HILLS SCHOOL DISTRICT ET AL.; BY STEPHEN J. POLLAK, RICHARD
M. SHARP, AND DAVID RUBIN FOR THE NATIONAL EDUCATION ASSN.; AND BY
DAVID I. CAPLAN FOR THE JEWISH RIGHTS COUNCIL. 
..END :





UNITED STATES V. NIXON, 418 U.S. 683 


       UNITED STATES V. NIXON, PRESIDENT OF THE UNITED STATES, ET

           AL.

        CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF

           APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

        NO. 73 - 1766.  ARGUED JULY 8, 1974--DECIDED JULY 24, 1974;

           /1/  NO. 73 - 1766, 377 F.SUPP.  1326, AFFIRMED; NO. 73

    1834, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 

/1/  TOGETHER WITH NO. 73 - 1834, NIXON, PRESIDENT OF THE UNITED
STATES V. UNITED STATES, ALSO ON CERTIORARI BEFORE JUDGMENT TO THE SAME
COURT. 


    FOLLOWING INDICTMENT ALLEGING VIOLATION OF FEDERAL STATUTES BY

  CERTAIN STAFF MEMBERS OF THE WHITE HOUSE AND POLITICAL SUPPORTERS

  OF THE PRESIDENT, THE SPECIAL PROSECUTOR FILED A MOTION UNDER

  FED. RULE CRIM. PROC. 17 (C) FOR A SUPOENA DUCES TECUM FOR THE

  PRODUCTION BEFORE TRIAL OF CERTAIN TAPES AND DOCUMENTS RELATING

  TO PRECISELY IDENTIFIED CONVERSATIONS AND MEETINGS BETWEEN THE

  PRESIDENT AND OTHERS.  THE PRESIDENT, CLAIMING EXECUTIVE

  PRIVILEGE, FILED A MOTION TO QUASH THE SUBPOENA.  THE DISTRICT

  COURT, AFTER TREATING THE SUBPOENAED MATERIAL AS PRESUMPTIVELY

  PRIVILEGED, CONCLUDED THAT THE SPECIAL PROSECUTOR HAD MADE A

  SUFFICIENT SHOWING TO REBUT THE PRESUMPTION AND THAT THE

  REQUIREMENTS OF RULE 17 (C) HAD BEEN SATISFIED.  THE COURT

  THEREAFTER ISSUED AN ORDER FOR AN IN CAMERA EXAMINATION OF THE

  SUBPOENAED MATERIAL, HAVING REJECTED THE PRESIDENT'S CONTENTIONS

  (A) THAT THE DISPUTE BETWEEN HIM AND THE SPECIAL PROSECUTOR WAS

  NONJUSTICIABLE AS AN "INTRA-EXECUTIVE" CONFLICT AND (B) THAT THE

  JUDICIARY LACKED AUTHORITY TO REVIEW THE PRESIDENT'S ASSERTION OF

  EXECUTIVE PRIVILEGE.  THE COURT STAYED ITS ORDER PENDING

  APPELLATE REVIEW, WHICH THE PRESIDENT THEN SOUGHT IN THE COURT OF

  APPEALS.  THE SPECIAL PROSECUTOR THEN FILED IN THIS COURT A

  PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT (NO. 73 - 1766)

  AND THE PRESIDENT FILED A CROSS-PETITION FOR SUCH A WRIT

  CHALLENGING THE GRAND-JURY ACTION (NO. 73 - 1834).  THE COURT

  GRANTED BOTH PETITIONS.  HELD: 

   1.  THE DISTRICT COURT'S ORDER WAS APPEALABLE AS A "FINAL"

  ORDER UNDER 28 U.S.C. 1291, WAS THEREFORE PROPERLY "IN," 28

  U.S.C. 1254, THE COURT OF APPEALS WHEN THE PETITION FOR

  CERTIORARI BEFORE JUDGMENT WAS FILED IN THIS COURT, AND IS NOW

  PROPERLY BEFORE THIS COURT FOR REVIEW.  ALTHOUGH SUCH AN ORDER IS

  NORMALLY NOT FINAL AND SUBJECT TO APPEAL, AN EXCEPTION IS MADE IN

  A "LIMITED CLASS OF CASES WHERE DENIAL OF IMMEDIATE REVIEW WOULD

  RENDER IMPOSSIBLE ANY REVIEW WHATSOEVER OF AN INDIVIDUAL'S

  CLAIMS," UNITED STATES V. RYAN, 402 U.S. 530, 533.  SUCH AN

  EXCEPTION IF PROPER IN THE UNIQUE CIRCUMSTANCES OF THIS CASE

  WHERE IT WOULD BE INAPPROPRIATE TO SUBJECT THE PRESIDENT TO THE

  PROCEDURE OF SECURING REVIEW BY RESISTING THE ORDER AND

  INAPPROPRIATE TO REQUIRE THAT THE DISTRICT COURT PROCEED BY A

  TRADITIONAL CONTEMPT CITATION IN ORDER TO PROVIDE APPELLATE

  REVIEW.  PP. 690 - 692. 

     2.  THE DISPUTE BETWEEN THE SPECIAL PROSECUTOR AND THE

  PRESIDENT PRESENTS A JUSTICIABLE CONTROVERSY.  PP. 692 - 697. 

     (A) THE MERE ASSERTION OF AN "INTRA-BRANCH DISPUTE," WITHOUT

MORE, DOES NOT DEFEAT FEDERAL JURISDICTION.  UNITED STATES V.

  ICC, 337 U.S. 426.  P. 693. 

     (B) THE ATTORNEY GENERAL BY REGULATION HAS CONFERRED UPON THE

  SPECIAL PROSECUTOR UNIQUE TENURE AND AUTHORITY TO REPRESENT THE

  UNITED STATES AND HAS GIVEN THE SPECIAL PROSECUTOR EXPLICIT POWER

  TO CONTEST THE INVOCATION OF EXECUTIVE PRIVILEGE IN SEEKING

  EVIDENCE DEEMED RELEVANT TO THE PERFORMANCE OF HIS SPECIALLY

  DELEGATED DUTIES.  WHILE THE REGULATION REMAINS IN EFFECT, THE

  EXECUTIVE BRANCH IS BOUND BY IT.  UNITED STATES EX REL. ACCARDI

  V. SHAUGHNESSY, 347 U.S. 260.  PP. 694 - 696. 

     (C) THE ACTION OF THE SPECIAL PROSECUTOR WITHIN THE SCOPE OF

  HIS EXPRESS AUTHORITY SEEKING SPECIFIED EVIDENCE PRELIMINARILY

  DETERMINED TO BE RELEVANT AND ADMISSIBLE IN THE PENDING CRIMINAL

  CASE, AND THE PRESIDENT'S ASSERTION OF PRIVILEGE IN OPPOSITION

  THERETO, PRESENT ISSUES "OF A TYPE WHICH ARE TRADITIONALLY

  JUSTICIABLE," UNITED STATES V. ICC, SUPRA, AT 430, AND THE FACT

THAT BOTH LITIGANTS ARE OFFICERS OF THE EXECUTIVE BRANCH IS NOT A

  BAR TO JUSTICIABILITY.  PP. 696 - 697. 

3.  FROM THIS COURT'S EXAMINATION OF THE MATERIAL SUBMITTED BY

  THE SPECIAL PROSECUTOR IN SUPPORT OF HIS MOTION FOR THE SUBPOENA,

  MUCH OF WHICH IS UNDER SEAL, IT IS CLEAR THAT THE DISTRICT

  COURT'S DENIAL OF THE MOTION TO QUASH COMPORTED WITH RULE 17(C)

  AND THAT THE SPECIAL PROSECUTOR HAS MADE A SUFFICIENT SHOWING TO

  JUSTIFY A SUBPOENA FOR PRODUCTION BEFORE TRIAL.  PP. 697 - 702. 

     4.  NEITHER THE DOCTRINE OF SEPARATION OF POWERS NOR THE

  GENERALIZED NEED FOR CONFIDENTIALITY OF HIGH-LEVEL

  COMMUNICATIONS, WITHOUT MORE, CAN SUSTAIN AN ABSOLUTE,

  UNQUALIFIED PRESIDENTIAL PRIVILEGE OF IMMUNITY FROM JUDICIAL

  PROCESS UNDER ALL CIRCUMSTANCES.  SEE, E.G., MARBURY V. MADISON,

  1 CRANCH 137, 177; BAKER V. CARR, 369 U.S. 186, 211.  ABSENT A

CLAIM OF NEED TO PROTECT MILITARY, DIPLOMATIC, OR SENSITIVE

  NATIONAL SECURITY SECRETS, THE CONFIDENTIALITY OF PRESIDENTIAL

  COMMUNICATIONS IS NOT SIGNIFICANTLY DIMINISHED BY PRODUCING

  MATERIAL FOR A CRIMINAL TRIAL UNDER THE PROTECTED CONDITIONS OF

  IN CAMERA INSPECTION, AND ANY ABSOLUTE EXECUTIVE PRIVILEGE UNDER

  ART. II OF THE CONSTITUTION WOULD PLAINLY CONFLICT WITH THE

  FUNCTION OF THE COURTS UNDER THE CONSTITUTION.  PP. 703 - 707. 

     5.  ALTHOUGH THE COURTS WILL AFFORD THE UTMOST DEFERENCE TO

  PRESIDENTIAL ACTS IN THE PERFORMANCE OF AN ART. II FUNCTION,

  UNITED STATES V. BURR, 25 F.CAS.  187, 190, 191 - 192 (NO. 14,

694), WHEN A CLAIM OF PRESIDENTIAL PRIVILEGE AS TO MATERIALS

  SUBPOENAED FOR USE IN A CRIMINAL TRIAL IS BASED, AS IT IS HERE,

  NOT ON THE GROUND THAT MILITARY OR DIPLOMATIC SECRETS ARE

  IMPLICATED, BUT MERELY ON THE GROUND OF A GENERALIZED INTEREST IN

  CONFIDENTIALITY, THE PRESIDENT'S GENERALIZED ASSERTION OF

  PRIVILEGE MUST YIELD TO THE DEMONSTRATED, SPECIFIC NEED FOR

  EVIDENCE IN A PENDING CRIMINAL TRIAL AND THE FUNDAMENTAL DEMANDS

  OF DUE PROCESS OF LAW IN THE FAIR ADMINISTRATION OF JUSTICE.  PP.

  707 - 713. 

     6.  ON THE BASIS OF THIS COURT'S EXAMINATION OF THE RECORD, IT

  CANNOT BE CONCLUDED THAT THE DISTRICT COURT ERRED IN ORDERING IN

  CAMERA EXAMINATION OF THE SUBPOENAED MATERIAL, WHICH SHALL NOW

  FORTHWITH BE TRANSMITTED TO THE DISTRICT COURT.  PP. 713 - 714. 

     7.  SINCE A PRESIDENT'S COMMUNICATIONS ENCOMPASS A VASTLY
WIDER

  RANGE OF SENSITIVE MATERIAL THAN WOULD BE TRUE OF AN ORDINARY

  INDIVIDUAL, THE PUBLIC INTEREST REQUIRES THAT PRESIDENTIAL

CONFIDENTIALITY BE AFFORDED THE GREATEST PROTECTION CONSISTENT

  WITH THE FAIR ADMINISTRATION OF JUSTICE, AND THE DISTRICT COURT

  HAS A HEAVY RESPONSIBILITY TO ENSURE THAT MATERIAL INVOLVING

  PRESIDENTIAL CONVERSATIONS IRRELEVANT TO OR INADMISSIBLE IN THE

  CRIMINAL PROSECUTION BE ACCORDED THE HIGH DEGREE OF RESPECT DUE A

  PRESIDENT AND THAT SUCH MATERIAL BE RETURNED UNDER SEAL TO ITS

  LAWFUL CUSTODIAN.  UNTIL RELEASED TO THE SPECIAL PROSECUTOR NO IN

  CAMERA MATERIAL IS TO BE RELEASED TO ANYONE.  PP 714 - 716. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT REHNQUIST, J., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASES. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION PRESENTS FOR REVIEW THE DENIAL OF A MOTION, FILED IN
THE DISTRICT COURT ON BEHALF OF THE PRESIDENT OF THE UNITED STATES, IN
THE CASE OF UNITED STATES V. MITCHELL (D.C. CRIM. NO. 74 - 110), TO
QUASH A THIRD-PARTY SUBPOENA DUCES TECUM ISSUED BY THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, PURSUANT TO FED. RULE
CRIM. PROC. 17(C).  THE SUBPOENA DIRECTED THE PRESIDENT TO PRODUCE
CERTAIN TAPE RECORDINGS AND DOCUMENTS RELATING TO HIS CONVERSATIONS
WITH AIDES AND ADVISER THE COURT REJECTED THE PRESIDENT'S CLAIMS OF
ABSOLUTE EXECUTIVE PRIVILEGE, OF LACK OF JURISDICTION, AND OF FAILURE
TO SATISFY THE REQUIREMENTS OF RULE 17(C).  THE PRESIDENT APPEALED TO
THE COURT OF APPEALS.  WE GRANTED BOTH THE UNITED STATES' PETITION FOR
CERTIORARI BEFORE JUDGMENT (NO. 73 - 1766), /1/  AND ALSO THE
PRESIDENT'S CROSS-PETITION FOR CERTIORARI BEFORE JUDGMENT (NO. 73 -
1834), /2/  BECAUSE OF THE PUBLIC IMPORTANCE OF THE ISSUES PRESENTED
AND THE NEED FOR THEIR PROMPT RESOLUTION.  417 U.S. 927 AND 960
(1974). 

ON MARCH 1, 1974, A GRAND JURY OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA RETURNED AN INDICTMENT CHARGING SEVEN
NAMED INDIVIDUALS /3/ WITH VARIOUS OFFENSES, INCLUDING CONSPIRACY TO
DEFRAUD THE UNITED STATES AND TO OBSTRUCT JUSTICE.  ALTHOUGH HE WAS NOT
DESIGNATED AS SUCH IN THE INDICTMENT, THE GRAND JURY NAMED THE
PRESIDENT, AMONG OTHERS, AS AN UNINDICTED COCONSPIRATOR.  /4/  ON APRIL
18, 1974, UPON MOTION OF THE SPECIAL PROSECUTOR, SEE N. 8, INFRA, A
SUBPOENA DUCES TECUM WAS ISSUED PURSUANT TO RULE 17(C) TO THE PRESIDENT
BY THE UNITED STATES DISTRICT COURT AND MADE RETURNABLE ON MAY 2,
1974.  THIS SUBPOENA REQUIRED THE PRODUCTION, IN ADVANCE OF THE
SEPTEMBER 9 TRIAL DATE, OF CERTAIN TAPES, MEMORANDA, PAPERS,
TRANSCRIPTS, OR OTHER WRITINGS RELATING TO CERTAIN PRECISELY IDENTIFIED
MEETINGS BETWEEN THE PRESIDENT AND OTHERS.  /5/  THE SPECIAL PROSECUTOR
WAS ABLE TO FIX THE TIME, PLACE, AND PERSONS PRESENT AT THESE
DISCUSSIONS BECAUSE THE WHITE HOUSE DAILY LONGS AND APPOINTMENT RECORDS
HAD BEEN DELIVERED TO HIM.  ON APRIL 30, THE PRESIDENT PUBLICLY
RELEASED EDITED TRANSCRIPTS OF 43 CONVERSATIONS; PORTIONS OF 20
CONVERSATIONS SUBJECT TO SUBPOENA IN THE PRESENT CASE WERE INCLUDED. 
ON MAY 1, 1974, THE PRESIDENT'S COUNSEL FILED A "SPECIAL APPEARANCE"
AND A MOTION TO QUASH THE SUBPOENA UNDER RULE 17(C).  THIS MOTION WAS
ACCOMPANIED BY A FORMAL CLAIM OF PRIVILEGE.  AT A SUBSEQUENT HEARING,
/6/  FURTHER MOTIONS TO EXPUNGE THE GRAND JURY'S ACTION NAMING THE
PRESIDENT AS AN UNINDICTED COCONSPIRATOR AND FOR PROTECTIVE ORDERS
AGAINST THE DISCLOSURE OF THAT INFORMATION WERE FILED OR RAISED ORALLY
BY COUNSEL FOR THE PRESIDENT. 

ON MAY 20, 1974, THE DISTRICT COURT DENIED THE MOTION TO QUASH AND
THE MOTIONS TO EXPUNGE AND FOR PROTECTIVE ORDERS.  377 F.SUPP.  1326. 
IT FURTHER ORDERED "THE PRESIDENT OR ANY SUBORDINATE OFFICER, OFFICIAL,
OR EMPLOYEE WITH CUSTODY OR CONTROL OF THE DOCUMENTS OR OBJECTS
SUBPOENAED," ID., AT 1331, TO DELIVER TO THE DISTRICT COURT, ON OR
BEFORE MAY 31, 1974, THE ORIGINALS OF ALL SUBPOENAED ITEMS, AS WELL AS
AN INDEX AND ANALYSIS OF THOSE ITEMS, TOGETHER WITH TAPE COPIES OF
THOSE PORTIONS OF THE SUBPOENAED RECORDINGS FOR WHICH TRANSCRIPTS HAD
BEEN RELEASED TO THE PUBLIC BY THE PRESIDENT ON APRIL 30.  THE DISTRICT
COURT REJECTED JURISDICTIONAL CHALLENGES BASED ON A CONTENTION THAT THE
DISPUTE WAS NONJUSTICIABLE BECAUSE IT WAS BETWEEN THE SPECIAL
PROSECUTOR AND THE CHIEF EXECUTIVE AND HENCE "INTRA-EXECUTIVE" IN
CHARACTER; IT ALSO REJECTED THE CONTENTION THAT THE JUDICIARY WAS
WITHOUT AUTHORITY TO REVIEW AN ASSSERTION OF EXECUTIVE PRIVILEGE BY THE
PRESIDENT.  THE COURT'S REJECTION OF THE FIRST CHALLENGE WAS BASED ON
THE AUTHORITY AND POWERS VESTED IN THE SPECIAL PROSECUTOR BY THE
REGULATION PROMULGATED BY THE ATTORNEY GENERAL; THE COURT CONCLUDED
THAT A JUSTICIABLE CONTROVERSY WAS PRESENTED.  THE SECOND CHALLENGE WAS
HELD TO BE FORECLOSED BY THE DECISION IN NIXON V. SIRICA, 159
U.S.APP.D.C. 58, 487 F.2D 700 (1974). 

THE DISTRICT COURT HELD THAT THE JUDICIARY, NOT THE PRESIDENT, WAS
THE FINAL ARBITER OF A CLAIM OF EXECUTIVE PRIVILEGE.  THE COURT
CONCLUDED THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, THE PRESUMPTIVE
PRIVILEGE WAS OVERCOME BY THE SPECIAL PROSECUTOR'S PRIMA FACIE
"DEMONSTRATION OF NEED SUFFICIENTLY COMPELLING TO WARRANT JUDICIAL
EXAMINATION IN CHAMBERS . . .."  377 F.SUPP.,AT 1330.  THE COURT HELD,
FINALLY, THAT THE SPECIAL PROSECUTOR HAD SATISFIED THE REQUIREMENTS OF
RULE 17(C).  THE DISTRICT COURT STAYED ITS ORDER PENDING APPELLATE
REVIEW ON CONDITION THAT REVIEW WAS SOUGHT BEFORE 4 P.M., MAY 24.  THE
COURT FURTHER PROVIDED THAT MATTERS FILED UNDER SEAL REMAIN UNDER SEAL
WHEN TRANSMITTED AS PART OF THE RECORD. 

ON MAY 24, 1974, THE PRESIDENT FILED A TIMELY NOTICE OF APPEAL FROM
THE DISTRICT COURT ORDER, AND THE CERTIFIED RECORD FROM THE DISTRICT
COURT WAS DOCKETED IN THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.  ON THE SAME DAY, THE PRESIDENT ALSO
FILED A PETITION FOR WRIT OF MANDAMUS IN THE COURT OF APPEALS SEEKING
REVIEW OF THE DISTRICT COURT ORDER. 

LATER ON MAY 24, THE SPECIAL PROSECUTOR ALSO FILED IN THIS COURT, A
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT.  ON MAY 31, THE
PETITION WAS GRANTED WITH AN EXPEDITED BRIEFING SCHEDULE.  417 U.S.
927.  ON JUNE 6, THE PRESIDENT FILED, UNDER SEAL, A CROSS-PETITION FOR
WRIT OF CERTORARI BEFORE JUDGMENT.  THIS CROSS-PETITION WAS GRANTED
JUNE 15, 1974, 417 U.S. 960, AND THE CASE WAS SET FOR ARGUMENT ON JULY
8, 1974. 

        I

        JURISDICTION 

THE THRESHOLD QUESTION PRESENTED IS WHETHER THE MAY 20, 1974, ORDER
OF THE DISTRICT COURT WAS AN APPEALABLE ORDER AND WHETHER THIS CASE WAS
PROPERLY "IN" THE COURT OF APPEALS WHEN THE PETITION FOR CERTIORARI WAS
FILED IN THIS COURT.  28 U.S.C. 1254.  COURT OF APPEALS JURISDICTION
UNDER 28 U.S.C. 1291 ENCOMPASSES ONLY "FINAL DECISIONS OF THE DISTRICT
COURTS."  SINCE THE APPEAL WAS TIMELY FILED AND ALL OTHER PROCEDURAL
REQUIREMENTS WERE MET, THE PETITION IS PROPERLY BEFORE THIS COURT FOR
CONSIDERATION IF THE DISTRICT COURT ORDER WAS FINAL.  28 U.S.C.
1254(1), 2101(E). 

THE FINALITY REQUIREMENT OF 28 U.S.C. 1291 EMBODIES A STRONG
CONGRESSIONAL POLICY AGAINST PIECEMEAL REVIEWS AND AGAINST OBSTRUCTING
OR IMPEDING AN ONGOING JUDICIAL PROCEEDING BY INTERLOCUTORY APPEALS. 
SEE, E.G., COBBLEDICK V. UNITED STATES, 309 U.S. 323, 324 - 326
(1940).  THIS REQUIREMENT ORDINARILY PROMOTES JUDICIAL EFFICIENCY AND
HASTENS THE ULTIMATE TERMINATION OF LITIGATION.  IN APPLYING THIS
PRINCIPLE TO AN ORDER DENYING A MOTION TO QUASH AND REQUIRING THE
PRODUCTION OF EVIDENCE PURSUANT TO A SUBPOENA DUCES TECUM, IT HAS BEEN
REPEATEDLY HELD THAT THE ORDER IS NOT FINAL AND HENCE NOT APPEALABLE. 
UNITED STATES V. RYAN, 402 U.S. 530, 532 (1971); COBBLEDICK V. UNITED
STATES, SUPRA; ALEXANDER V. UNITED STATES, 201 U.S. 117 (1906).  THIS
COURT HAS 

     "CONSISTENTLY HELD THAT THE NECESSITY FOR EXPEDITION IN THE

  ADMINISTRATION OF THE CRIMINAL LAW JUSTIFIES PUTTING ONE WHO

  SEEKS TO RESIST THE PRODUCTION OF DESIRED INFORMATION TO A CHOICE

  BETWEEN COMPLIANCE WITH A TRIAL COURT'S ORDER TO PRODUCE PRIOR TO

  ANY REVIEW OF THAT ORDER, AND RESISTANCE TO THAT ORDER WITH THE

  CONCOMITANT POSSIBILITY OF AN ADJUDICATION OF CONTEMPT IF HIS

  CLAIMS ARE REJECTED ON APPEAL."  UNITED STATES V. RYAN, SUPRA, AT

  533. 

THE REQUIREMENT OF SUBMITTING TO CONTEMPT, HOWEVER, IS NOT WITHOUT
EXCEPTION AND IN SOME INSTANCES THE PURPOSES UNDERLYING THE FINALITY
RULE REQUIRE A DIFFERENT RESULT.  FOR EXAMPLE, IN PERLMAN V. UNITED
STATES, 247 U.S. 7 (1918), A SUBPOENA HAD BEEN DIRECTED TO A THIRD
PARTY REQUESTING CERTAIN EXHIBITS; THE APPELLANT, WHO OWNED THE
EXHIBITS, SOUGHT TO RAISE A CLAIM OF PRIVILEGE.  THE COURT HELD AN
ORDER COMPELLING PRODUCTION WAS APPEALABLE BECAUSE IT WAS UNLIKELY THAT
THE THIRD PARTY WOULD RISK A CONTEMPT CITATION IN ORDER TO ALLOW
IMMEDIATE REVIEW OF THE APPELLANT'S CLAIM OF PRIVILEGE.  ID., AT 12 -
13.  THAT CASE FELL WITHIN THE "LIMITED CLASS OF CASES WHERE DENIAL OF
IMMEDIATE REVIEW WOULD RENDER IMPOSSIBLE ANY REVIEW WHATSOEVER OF AN
INDIVIDUAL'S CLAIMS."  UNITED STATES V. RYAN, SUPRA, AT 533. 

HERE TOO, THE TRADITIONAL CONTEMPT AVENUE TO IMMEDIATE APPEAL IS
PECULIARLY INAPPROPRIATE DUE TO THE UNIQUE SETTING IN WHICH THE
QUESTION ARISES.  TO REQUIRE A PRESIDENT OF THE UNITED STATES TO PLACE
HIMSELF IN THE POSTURE OF DISOBEYING AN ORDER OF A COURT MERELY TO
TRIGGER THE PROCEDURAL MECHANISM FOR REVIEW OF THE RULING WOULD BE
UNSEEMLY, AND WOULD PRESENT AN UNNECESSARY OCCASION FOR CONSTITUTIONAL
CONFRONTATION BETWEEN TWO BRANCHES OF THE GOVERNMENT.  SIMILARLY, A
FEDERAL JUDGE SHOULD NOT BE PLACED IN THE POSTURE OF ISSUING A CITATION
TO A PRESIDENT SIMPLY IN ORDER TO INVOKE REVIEW.  THE ISSUE WHETHER A
PRESIDENT CAN BE CITED FOR CONTEMPT COULD ITSELF ENGENDER PROTRACTED
LITIGATION, AND WOULD FURTHER DELAY BOTH REVIEW ON THE MERITS OF HIS
CLAIM OF PRIVILEGE AND THE ULTIMATE TERMINATION OF THE UNDERLYING
CRIMINAL ACTION FOR WHICH HIS EVIDENCE IS SOUGHT.  THESE CONSIDERATIONS
LEAD US TO CONCLUDE THAT THE ORDER OF THE DISTRICT COURT WAS AN
APPEALABLE ORDER.  THE APPEAL FROM THAT ORDER WAS THEREFORE PROPERLY
"IN" THE COURT OF APPEALS, AND THE CASE IS NOW PROPERLY BEFORE THIS
COURT ON THE WRIT OF CERTIORARI BEFORE JUDGMENT.  28 U.S.C. 1254; 28
U.S.C. 2101(E).  GAY V. RUFF, 292 U.S. 25, 30(1934).  /7/

      II

        JUSTICIABILITY 

IN THE DISTRICT COURT, THE PRESIDENT'S COUNSEL ARGUED THAT THE COURT
LACKED JURISDICTION TO ISSUE THE SUBPOENA BECAUSE THE MATTER WAS AN
INTRA-BRANCH DISPUTE BETWEEN A SUBORDINATE AND SUPERIOR OFFICER OF THE
EXECUTIVE BRANCH AND HENCE NOT SUBJECT TO JUDICIAL RESOLUTION.  THAT
ARGUMENT HAS BEEN RENEWED IN THIS COURT WITH EMPHASIS ON THE CONTENTION
THAT THE DISPUTE DOES NOT PRESENT A "CASE" OR "CONTROVERSY" WHICH CAN
BE ADJUDICATED IN THE FEDERAL COURTS.  THE PRESIDENT'S COUNSEL ARGUES
THAT THE FEDERAL COURTS SHOULD NOT INTRUDE INTO AREAS COMMITTED TO THE
OTHER BRANCHES OF GOVERNMENT.  HE VIEWS THE PRESENT DISPUTE AS
ESSENTIALLY A "JURISDICTIONAL" DISPUTE WITHIN THE EXECUTIVE BRANCH
WHICH HE ANALOGIZES TO A DISPUTE BETWEEN TWO CONGRESSIONAL COMMITTEES. 
SINCE THE EXECUTIVE BRANCH HAS EXCLUSIVE AUTHORITY AND ABSOLUTE
DISCRETION TO DECIDE WHETHER TO PROSECUTE A CASE, CONFISCATION CASES, 7
WALL.  454 (1869); UNITED STATES V. COX, 342 F.2D 167, 171 (CA5), CERT.
DENIED SUB NOM. COX V. HAUBERG, 381 U.S. 935 (1965), IT IS CONTENDED
THAT A PRESIDENT'S DECISION IS FINAL IN DETERMINING WHAT EVIDENCE IS TO
BE USED IN A GIVEN CRIMINAL CASE.  ALTHOUGH HIS COUNSEL CONCEDES THAT
THE PRESIDENT HAS DELEGATED CERTAIN SPECIFIC POWERS TO THE SPECIAL
PROSECUTOR, HE HAS NOT "WAIVED NOR DELEGATED TO THE SPECIAL PROSECUTOR
THE PRESIDENT'S DUTY TO CLAIM PRIVILEGE AS TO ALL MATERIALS.  . .WHICH
FALL WITHIN THE PRESIDENT'S INHERENT AUTHORITY TO REFUSE TO DISCLOSE TO
ANY EXECUTIVE OFFICER."  BRIEF FOR THE PRESIDENT 42.  THE SPECIAL
PROSECUTOR'S DEMAND FOR THE ITEMS THEREFORE PRESENTS, IN THE VIEW OF
THE PRESIDENT'S COUNSEL, A POLITICAL QUESTION UNDER BAKER V. CARR, 369
U.S. 186 (1962), SINCE IT INVOLVES A "TEXTUALLY DEMONSTRABLE" GRANT OF
POWER UNDER ART. II. 

THE MERE ASSERTION OF A CLAIM OF AN "INTRA-BRANCH DISPUTE," WITHOUT
MORE, HAS NEVER OPERATED TO DEFEAT FEDERAL JURISDICTION; JUSTICIABILITY
DOES NOT DEPEND ON SUCH A SURFACE INQUIRY.  IN UNITED STATES V. ICC,
337 U.S. 426 (1949), THE COURT OBSERVED, "COURTS MUST LOOK BEHIND NAMES
THAT SYMBOLIZE THE PARTIES TO DETERMINE WHETHER A JUSTICIABLE CASE OR
CONTROVERSY IS PRESENTED."  ID., AT 430.  SEE ALSO POWELL V. MCCORMACK,
395 U.S. 486 (1969); ICC V. JERSEY CITY, 322 U.S. 503 (1944); UNITED
STATES EX REL. CHAPMAN V. FPC, 345 U.S. 153 (1953); SECRETARY OF
AGRICULTURE V. UNITED STATES, 347 U.S. 645 (1954); FMB V. ISBRANDTSEN
CO., 356 U.S. 481, 483 NS2 (1958); UNITED STATES V. MARINE
BANCORPORATION, ANTE, P. 602, AND UNITED STATES V. CONNECTICUT NATIONAL
BANK, ANTE, P. 656. 

OUR STARTING POINT IS THE NATURE OF THE PROCEEDING FOR WHICH THE
EVIDENCE IS SOUGHT--HERE A PENDING CRIMINAL PROSECUTION.  IT IS A
JUDICIAL PROCEEDING IN A FEDERAL COURT ALLEGING VIOLATION OF FEDERAL
LAWS AND IS BROUGHT IN THE NAME OF THE UNITED STATES AS SOVEREIGN. 
BERGER V. UNITED STATES, 295 U.S. 78, 88 (1935).  UNDER THE AUTHORITY
OF ART. II, 2, CONGRESS HAS VESTED IN THE ATTORNEY GENERAL THE POWER TO
CONDUCT THE CRIMINAL LITIGATION OF THE UNITED STATES GOVERNMENT.  28
U.S.C. 516.  IT HAS ALSO VESTED IN HIM THE POWER TO APPOINT SUBORDINATE
OFFICERS TO ASSIST HIM IN THE DISCHARGE OF HIS DUTIES.  28 U.S.C. 509,
510, 515, 533.  ACTING PURSUANT TO THOSE STATUTES, THE ATTORNEY GENERAL
HAS DELEGATED THE AUTHORITY TO REPRESENT THE UNITED STATES IN THESE
PARTICULAR MATTERS TO A SPECIAL PROSECUTOR WITH UNIQUE AUTHORITY AND
TENURE.  /8/  THE REGULATION GIVES THE SPECIAL PROSECUTOR EXPLICIT
POWER TO CONTEST THE INVOCATION OF EXECUTIVE PRIVILEGE IN THE PROCESS
OF SEEKING EVIDENCE DEEMED RELEVANT TO THE PERFORMANCE OF THESE
SPECIALLY DELEGATED DUTIES.  /9/  38 FED.REG.  30739, AS AMENDED BY 38
FED.REG.  32805.     SO LONG AS THIS REGULATION IS EXTANT IT HAS THE
FORCE OF LAW.  IN UNITED STATES EX REL. ACCARDI V. SHAUGHNESSY, 347
U.S. 260 (1954), REGULATIONS OF THE ATTORNEY GENERAL DELEGATED CERTAIN
OF HIS DISCRETIONARY POWERS TO THE BOARD OF IMMIGRATION APPEALS AND
REQUIRED THAT BOARD TO EXERCISE ITS OWN DISCRETION ON APPEALS IN
DEPORTATION CASES.  THE COURT HELD THAT SO LONG AS THE ATTORNEY
GENERAL'S REGULATIONS REMAINED OPERATIVE, HE DENIED HIMSELF THE
AUTHORITY TO EXERCISE THE DISCRETION DELEGATED TO THE BOARD EVEN THOUGH
THE ORIGINAL AUTHORITY WAS HIS AND HE COULD REASSERT IT BY AMENDING THE
REGULATIONS.  SERVICE V. DULLES, 354 U.S. 363, 388 (1957), AND
VITARELLI V. SEATON, 359 U.S. 535 (1959), REAFFIRMED THE BASIC HOLDING
OF ACCARDI. 

HERE, AS IN ACCARDI, IT IS THEORETICALLY POSSIBLE FOR THE ATTORNEY
GENERAL TO AMEND OR REVOKE THE REGULATION DEFINING THE SPECIAL
PROSECUTOR'S AUTHORITY.  BUT HE HAS NOT DONE SO.  /10/  SO LONG AS THIS
REGULATION REMAINS IN FORCE THE EXECUTIVE BRANCH IS BOUND BY IT, AND
INDEED THE UNITED STATES AS THE SOVEREIGN COMPOSED OF THE THREE
BRANCHES IS BOUND TO RESPECT AND TO ENFORCE IT.  MOREOVER, THE
DELEGATION OF AUTHORITY TO THE SPECIAL PROSECUTOR IN THIS CASE IS NOT
AN ORDINARY DELEGATION BY THE ATTORNEY GENERAL TO A SUBORDINATE
OFFICER:  WITH THE AUTHORIZATION OF THE PRESIDENT, THE ACTING ATTORNEY
GENERAL PROVIDED IN THE REGULATION THAT THE SPECIAL PROSECUTOR WAS NOT
TO BE REMOVED WITHOUT THE "CONSENSUS" OF EIGHT DESIGNATED LEADERS OF
CONGRESS.  N. 8, SUPRA. 

THE DEMANDS OF AND THE RESISTANCE TO THE SUBPOENA PRESENT AN OBVIOUS
CONTROVERSY IN THE ORDINARY SENSE, BUT THAT ALONE IS NOT SUFFICIENT TO
MEET CONSTITUTIONAL STANDARDS.  IN THE CONSTITUTIONAL SENSE,
CONTROVERSY MEANS MORE THAN DISAGREEMENT AND CONFLICT; RATHER IT MEANS
THE KIND OF CONTROVERSY COURTS TRADITIONALLY RESOLVE.  HERE AT ISSUE IS
THE PRODUCTION OR NONPRODUCTION OF SPECIFIED EVIDENCE DEEMED BY THE
SPECIAL PROSECUTOR TO BE RELEVANT AND ADMISSIBLE IN A PENDING CRIMINAL
CASE.  IT IS SOUGHT BY ONE OFFICIAL OF THE EXECUTIVE BRANCH WITHIN THE
SCOPE OF HIS EXPRESS AUTHORITY; IT IS RESISTED BY THE CHIEF EXECUTIVE
ON THE GROUND OF HIS DUTY TO PRESERVE THE CONFIDENTIALITY OF THE
COMMUNICATIONS OF THE PRESIDENT.  WHATEVER THE CORRECT ANSWER ON THE
MERITS, THESE ISSUES ARE "OF A TYPE WHICH ARE TRADITIONALLY
JUSTICIABLE."  UNITED STATES V. ICC, 337 U.S., AT 430.  THE INDEPENDENT
SPECIAL PROSECUTOR WITH HIS ASSERTED NEED FOR THE SUBPOENAED MATERIAL
IN THE UNDERLYING CRIMINAL PROSECUTION IS OPPOSED BY THE PRESIDENT WITH
HIS STEADFAST ASSERTION OF PRIVILEGE AGAINST DISCLOSURE OF THE
MATERIAL.  THIS SETTING ASSURES THERE IS "THAT CONCRETE ADVERSENESS
WHICH SHARPENS THE PRESENTATION OF ISSUES UPON WHICH THE COURT SO
LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULT CONSTITUTIONAL
QUESTIONS."  BAKER V. CARR, 369 U.S.,AT 204.  MOREOVER, SINCE THE
MATTER IS ONE ARISING IN THE REGULAR COURSE OF A FEDERAL CRIMINAL
PROSECUTION, IT IS WITHIN THE TRADITIONAL SCOPE OF ART. III POWER. 
ID., AT 198. 

IN LIGHT OF THE UNIQUENESS OF THE SETTING IN WHICH THE CONFLICT
ARISES, THE FACT THAT BOTH PARTIES ARE OFFICERS OF THE EXECUTIVE BRANCH
CANNOT BE VIEWED AS A BARRIER TO JUSTICIABILITY.  IT WOULD BE
INCONSISTENT WITH THE APPLICABLE LAW AND REGULATION, AND THE UNIQUE
FACTS OF THIS CASE TO CONCLUDE OTHER THAN THAT THE SPECIAL PROSECUTOR
HAS STANDING TO BRING THIS ACTION AND THAT A JUSTICIABLE CONTROVERSY IS
PRESENTED FOR DECISION. 

    III

        RULE 17(C) 

THE SUBPOENA DUCES TECUM IS CHALLENGED ON THE GROUND THAT THE
SPECIAL PROSECUTOR FAILED TO SATISFY THE REQUIREMENTS OF FED. RULE
CRIM. PROC. 17(C), WHICH GOVERNS THE ISSUANCE OF SUBPOENAS DUCES TECUM
IN FEDERAL CRIMINAL PROCEEDINGS.  IF WE SUSTAINED THIS CHALLENGE, THERE
WOULD BE NO OCCASION TO REACH THE CLAIM OF PRIVILEGE ASSERTED WITH
RESPECT TO THE SUBPOENAED MATERIAL.  THUS WE TURN TO THE QUESTION
WHETHER THE REQUIREMENTS OF RULE 17(C) HAVE BEEN SATISFIED.  SEE
ARKANSAS LOUISIANA GAS CO. V. DEPT. OF PUBLIC UTILITIES, 304 U.S. 61,
64 (1938); ASHWANDER V. TVA, 297 U.S. 288, 346 - 347 (1936) (BRANDEIS,
J., CONCURRING). 

RULE 17(C) PROVIDES: 

     "A SUBPOENA MAY ALSO COMMAND THE PERSON TO WHOM IT IS DIRECTED

  TO PRODUCE THE THE BOOKS, PAPERS, DOCUMENTS OR OTHER OBJECTS

  DESIGNATED THEREIN.  THE COURT ON MOTION MADE PROMPTLY MAY QUASH

  OR MODIFY THE SUBPOENA IF COMPLIANCE WOULD BE UNREASONABLE OR

  OPPRESSIVE.  THE COURT MAY DIRECT THAT BOOKS, PAPERS, DOCUMENTS

  OR OBJECTS DESIGNATED IN THE SUBPOENA BE PRODUCED BEFORE THE

  COURT AT A TIME PRIOR TO THE TRIAL OR PRIOR TO THE TIME WHEN THEY

ARE TO BE OFFERED IN EVIDENCE AND MAY UPON THEIR PRODUCTION

 PERMIT THE BOOKS, PAPERS, DOCUMENTS OR OBJECTS OR PORTIONS

  THEREOF TO BE INSPECTED BY THE PARTIES AND THEIR ATTORNEYS." 

A SUBPOENA FOR DOCUMENTS MAY BE QUASHED IF THEIR PRODUCTION WOULD BE
"UNREASONABLE OR OPPRESSIVE," BUT NOT OTHERWISE.  THE LEADING CASE IN
THIS COURT INTERPRETING THIS STANDARD IS BOWMAN DAIRY CO. V. UNITED
STATES, 341 U.S. 214 (1951).  THIS CASE RECOGNIZED CERTAIN FUNDAMENTAL
CHARACTERISTICS OF THE SUBPOENA DUCES TECUM IN CRIMINAL CASES:  (1) IT
WAS NOT INTENDED TO PROVIDE A MEANS OF DISCOVERY FOR CRIMINAL CASES,
ID., AT 220; (2) ITS CHIEF INNOVATION WAS TO EXPEDITE THE TRIAL BY
PROVIDING A TIME AND PLACE BEFORE TRIAL FOR THE INSPECTION OF
SUBPOENAED MATERIALS, /11/  IBID.  AS BOTH PARTIES AGREE, CASES DECIDED
IN THE WAKE OF BOWMAN HAVE GENERALLY FOLLOWED JUDGE WEINFELD'S
FORMULATION IN UNITED STATES V. IOZIA, 13 F.R.D. 335, 338 (SDNY 1952),
AS TO THE REQUIRED SHOWING.  UNDER THIS TEST, IN ORDER TO REQUIRE
PRODUCTION PRIOR TO TRIAL, THE MOVING PARTY MUST SHOW: (1) THAT THE
DOCUMENTS ARE EVIDENTIARY /12/  AND RELEVANT; (2) THAT THEY ARE NOT
OTHERWISE PROCURABLE REASONABLY IN ADVANCE OF TRIAL BY EXERCISE OF DUE
DILIGENCE; (3) THAT THE PARTY CANNOT PROPERLY PREPARE FOR TRIAL WITHOUT
SUCH PRODUCTION AND INSPECTION IN ADVANCE OF TRIAL AND THAT THE FAILURE
TO OBTAIN SUCH INSPECTION MAY TEND UNREASONABLY TO DELAY THE TRIAL; AND
(4) THAT THE APPLICATION IS MADE IN GOOD FAITH AND IS NOT INTENDED AS A
GENERAL "FISHING EXPEDITION." 

AGAINST THIS BACKGROUND, THE SPECIAL PROSECUTOR, IN ORDER TO CARRY
HIS BURDEN, MUST CLEAR THREE HURDLES:  (1) RELEVANCY; (2)
ADMISSIBILITY; (3) SPECIFICITY.  OUR OWN REVIEW OF THE RECORD
NECESSARILY AFFORDS A LESS COMPREHENSIVE VIEW OF THE TOTAL SITUATION
THAN WAS AVAILABLE TO THE TRIAL JUDGE AND WE ARE UNWILLING TO CONCLUDE
THAT THE DISTRICT COURT ERRED IN THE EVALUATION OF THE SPECIAL
PROSECUTORS SHOWING UNDER RULE 17(C).  OUR CONCLUSION IS BASED ON THE
RECORD BEFORE US, MUCH OF WHICH IS UNDER SEAL.  OF COURSE, THE CONTENTS
OF THE SUBPOENAED TAPES COULD NOT AT THAT STAGE BE DESCRIBED FULLY BY
THE SPECIAL PROSECUTOR, BUT THERE WAS SUFFICIENT LIKELIHOOD THAT EACH
OF THE TAPES CONTAINS CONVERSATIONS RELEVANT TO THE OFFENSES CHARGED IN
THE INDICTMENT.  UNITED STATES V. GROSS, 24 F.R.D. 138 (SDNY 1959). 
WITH RESPECT TO MANY OF THE TAPES, THE SPECIAL PROSECUTOR OFFERED THE
SWORN TESTIMONY OR STATEMENTS OF ONE OR MORE OF THE PARTICIPANTS IN THE
CONVERSATIONS AS TO WHAT WAS SAID AT THE TIME.  AS FOR THE REMAINDER OF
THE TAPES, THE IDENTITY OF THE PARTICIPANTS AND THE TIME AND PLACE OF
THE CONVERSATIONS, TAKEN IN THERE TOTAL CONTEXT, PERMIT A RATIONAL
INFERENCE THAT AT LEAST PART OF THE CONVERSATIONS RELATE TO THE
OFFENSES CHARGED IN THE INDICTMENT. 

WE ALSO CONCLUDE THERE WAS A SUFFICIENT PRELIMINARY SHOWING THAT
EACH OF THE SUBPOENAED TAPES CONTAINS EVIDENCE ADMISSIBLE WITH RESPECT
TO THE OFFENSES CHARGED IN THE INDICTMENT.  THE MOST COGENT OBJECTION
TO THE ADMISSIBILITY OF THE TAPED CONVERSATIONS HERE AT ISSUE IS THAT
THEY ARE A COLLECTION OF OUT-OF-COURT STATEMENTS BY DECLARANTS WHO WILL
NOT BE SUBJECT TO CROSS-EXAMINATION AND THAT THE STATEMENTS ARE
THEREFORE INADMISSIBLE HEARSAY.  HERE, HOWEVER, MOST OF THE TAPES
APPARENTLY CONTAIN CONVERSATIONS TO WHICH ONE OR MORE OF THE DEFENDANTS
NAMED IN THE INDICTMENT WERE PARTY.  THE HEARSAY RULE DOES NOT
AUTOMATICALLY BAR ALL OUT-OF-COURT STATEMENTS BY A DEFENDANT IN A
CRIMINAL CASE.  /13/  DECLARATIONS BY ONE DEFENDANT MAY ALSO BE
ADMISSIBLE AGAINST OTHER DEFENDANTS UPON A SUFFICIENT SHOWING, BY
INDEPENDANT EVIDENCE, /14/  OF A CONSPIRACY AMONG ONE OR MORE OTHER
DEFENDANTS AND THE DECLARANT AND IF THE DECLARATIONS AT ISSUE WERE IN
FURTHERANCE OF THAT CONSPIRACY.  THE SAME IS TRUE OF DECLARATIONS OF
COCONSPIRATORS WHO ARE NOT DEFENDANTS IN THE CASE ON TRIAL.  DUTTON V.
EVANS, 400 U.S. 74, 81 (1970).  RECORDED CONVERSATIONS MAY ALSO BE
ADMISSIBLE FOR THE LIMITED PURPOSE OF IMPEACHING THE CREDIBILITY OF ANY
DEFENDANT WHO TESTIFIES OR ANY OTHER COCONSPIRATOR WHO TESTIFIES. 
GENERALLY, THE NEED FOR EVIDENCE TO IMPEACH WITNESSES IS INSUFFICIENT
TO REQUIRE ITS PRODUCTION IN ADVANCE OF TRIAL.  SEE, E.G., UNITED
STATES V. CARTER, 15 F.R.D. 367, 371 (DC 1954).  HERE, HOWEVER, THERE
ARE OTHER VALID POTENTIAL EVIDENTIARY USES FOR THE SAME MATERIAL AND
THE ANAYLSIS AND POSSIBLE TRANSCRIPTION OF THE TAPES MAY TAKE A
SIGNIFICANT PERIOD OF TIME.  ACCORDINGLY, WE CANNOT CONCLUDE THAT THE
DISTRICT COURT ERRED IN AUTHORIZING THE ISSUANCE OF THE SUBPOENA DUCES
TECUM. 

ENFORCEMENT OF A PRETRIAL SUBPOENA DUCES TECUM MUST NECESSARILY BE
COMMITTED TO THE SOUND DISCRETION OF THE TRIAL COURT SINCE THE
NECESSITY FOR THE SUBPOENA MOST OFTEN TURNS UPON A DETERMINATION OF
FACTUAL ISSUES.  WITHOUT A DETERMINATION OF ARBITRARINESS OR THAT THE
TRIAL COURT FINDING WAS WITHOUT RECORD SUPPORT, AN APPELLATE COURT WILL
NOT ORDINARILY DISTURB A FINDING THAT THE APPLICANT FOR A SUBPOENA
COMPLIED WITH RULE 17(C).  SEE, E.G., SUE V. CHICAGO TRANSIT AUTHORITY,
279 F.2D 416, 419 (CA7 1960); SHOTKIN V. NELSON, 146 F.2D 402 (CA10
1944). 

IN A CASE SUCH AS THIS, HOWEVER, WHERE A SUBPOENA IS DIRECTED TO A
PRESIDENT OF THE UNITED STATES, APPELLATE REVIEW, IN DEFERENCE TO A
COORDINATE BRANCH OF GOVERNMENT, SHOULD BE PARTICULARLY METICULOUS TO
ENSURE THAT THE STANDARDS OF RULE 17(C) HAVE BEEN CORRECTLY APPLIED. 
UNITED STATES V. BURR, 25 F.CAS.  30, 34 (NO. 14,692D) (CC VA. 1807). 
FROM OUR EXAMINATION OF THE MATERIALS SUBMITTED BY THE SPECIAL
PROSECUTOR TO THE DISTRICT COURT IN SUPPORT OF HIS MOTION FOR THE
SUBPOENA, WE ARE PERSUADED THAT THE DISTRICT COURT'S DENIAL OF THE
PRESIDENT'S MOTION TO QUASH THE SUBPOENA WAS CONSISTENT WITH RULE
17(C).  WE ALSO CONCLUDE THAT THE SPECIAL PROSECUTOR HAS MADE A
SUFFICIENT SHOWING TO JUSTIFY A SUBPOENA FOR PRODUCTION BEFORE TRIAL. 
THE SUBPOENAED MATERIALS ARE NOT AVAILABLE FROM ANY OTHER SOURCE, AND
THEIR EXAMINATION AND PROCESSING SHOULD NOT AWAIT TRIAL IN THE
CIRCUMSTANCES SHOWN.  BOWMAN DAIRY CO. V. UNITED STATES, 341 U.S. 214
(1951); UNITED STATES V. IOZIA, 13 F.R.D. 335 (SDNY 1952). 

 IV

        THE CLAIM OF PRIVILEGE

        A 

HAVING DETERMINED THAT THE REQUIREMENTS OF RULE 17(C) WERE SATISFIED,
WE TURN TO THE CLAIM THAT THE SUBPOENA SHOULD BE QUASHED BECAUSE IT
DEMANDS "CONFIDENTIAL CONVERSATIONS BETWEEN A PRESIDENT AND HIS CLOSE
ADVISORS THAT IT WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST TO
PRODUCE."  APP. 48A.  THE FIRST CONTENTION IS A BROAD CLAIM THAT THE
SEPARATION OF POWERS DOCTRINE PRECLUDES JUDICIAL REVIEW OF A
PRESIDENT'S CLAIM OF PRIVILEGE.  THE SECOND CONTENTION IS THAT IF HE
DOES NOT PREVAIL ON THE CLAIM OF ABSOLUTE PRIVILEGE, THE COURT SHOULD
HOLD AS A MATTER OF CONSTITUTIONAL LAW THAT THE PRIVILEGE PREVAILS OVER
THE SUBPOENA DUCES TECUM. 

IN THE PERFORMANCE OF ASSIGNED CONSTITUTIONAL DUTIES EACH BRANCH OF
THE GOVERNMENT MUST INITIALLY INTERPRET THE CONSTITUTION, AND THE
INTERPRETATION OF ITS POWERS BY ANY BRANCH IS DUE GREAT RESPECT FROM
THE OTHERS.  THE PRESIDENT'S COUNSEL, AS WE HAVE NOTED, READS THE
CONSTITUTION AS PROVIDING AN ABSOLUTE PRIVILEGE OF CONFIDENTIALITY FOR
ALL PRESIDENTIAL COMMUNICATIONS.  MANY DECISIONS OF THIS COURT,
HOWEVER, HAVE UNEQUIVOCALLY REAFFIRMED THE HOLDING OF MARBURY V.
MADISON, 1 CRANCH 137 (1803), THAT "(IT IS EMPHATICALLY THE PROVINCE
AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS."  ID., AT
177. 

NO HOLDING OF THE COURT HAS DEFINED THE SCOPE OF JUDICIAL POWER
SPECIFICALLY RELATING TO THE ENFORCEMENT OF A SUBPOENA FOR CONFIDENTIAL
PRESIDENTIAL COMMUNICATIONS FOR USE IN A CRIMINAL PROSECUTION, BUT
OTHER EXERCISES OF POWER BY THE EXECUTIVE BRANCH AND THE LEGISLATIVE
BRANCH HAVE BEEN FOUND INVALID AS IN CONFLICT WITH THE CONSTITUTION. 
POWELL V. MCCORMACK, 395 U.S. 486 (1969); YOUNGSTOWN SHEET & TUBE CO.
V. SAWYER, 343 U.S. 579 (1952).  IN A SERIES OF CASES, THE COURT
INTERPRETED THE EXPLICIT IMMUNITY CONFERRED BY EXPRESS PROVISIONS OF
THE CONSTITUTION ON MEMBERS OF THE HOUSE AND SENATE BY THE SPEECH OR
DEBATE CLAUSE, U.S. CONST. ART. I, 6.  DOE V. MCMILLAN, 412 U.S. 306
(1973); GRAVEL V. UNITED STATES, 408 U.S. 606 (1972); UNITED STATES V.
BREWSTER, 408 U.S. 501 (1972); UNITED STATES V. JOHNSON, 383 U.S. 169
(1966). 

SINCE THIS COURT HAS CONSISTENTLY EXERCISED THE POWER TO CONSTRUE
AND DELINEATE CLAIMS ARISING UNDER EXPRESS POWERS, IT MUST FOLLOW THAT
THE COURT HAS AUTHORITY TO INTERPRET CLAIMS WITH RESPECT TO POWERS
ALLEGED TO DERIVE FROM ENUMERATED POWERS. 

OUR SYSTEM OF GOVERNMENT "REQUIRES THAT FEDERAL COURTS ON OCCASION
INTERPRET THE CONSTITUTION IN A MANNER AT VARIANCE WITH THE
CONSTRUCTION GIVEN THE DOCUMENT BY ANOTHER BRANCH."  POWELL V.
MCCORMACK, SUPRA, AT 549.  AND IN BAKER V. CARR, 369 U.S.,AT 211, THE
COURT STATED: 

     "DECIDING WHETHER A MATTER HAS IN ANY MEASURE BEEN COMMITTED
BY

THE CONSTITUTION TO ANOTHER BRANCH OF GOVERNMENT, OR WHETHER THE

  ACTION OF THAT BRANCH EXCEEDS WHATEVER AUTHORITY HAS BEEN

  COMMITTED, IS ITSELF A DELICATE EXERCISE IN CONSTITUTIONAL

  INTERPRETATION, AND IS A RESPONSIBILITY OF THIS COURT AS ULTIMATE

  INTERPRETER OF THE CONSTITUTION." 

NOTWITHSTANDING THE DEFERENCE EACH BRANCH MUST ACCORD THE OTHERS, THE
"JUDICIAL POWER OF THE UNITED STATES" VESTED IN THE FEDERAL COURTS BY
ART. III, 1, OF THE CONSTITUTION CAN NO MORE BE SHARED WITH THE
EXECUTIVE BRANCH THAN THE CHIEF EXECUTIVE, FOR EXAMPLE, CAN SHARE WITH
THE JUDICIARY THE VETO POWER, OR THE CONGRESS SHARE WITH THE JUDICIARY
THE POWER TO OVERRIDE A PRESIDENTIAL VETO.  ANY OTHER CONCLUSION WOULD
BE CONTRARY TO THE BASIC CONCEPT OF SEPARATION OF POWERS AND THE CHECKS
AND BALANCES THAT FLOW FROM THE SCHEME OF A TRIPARTITE GOVERNMENT.  THE
FEDERALIST, NO. 47, P. 313 (S. MITTELL ED. 1938).  WE THEREFORE
REAFFIRM THAT IT IS THE PROVINCE AND DUTY OF THIS COURT "TO SAY WHAT
THE LAW IS" WITH RESPECT TO THE CLAIM OF PRIVILEGE PRESENTED IN THIS
CASE.  MARBURY V. MADISON, SUPRA, AT 177.              B     IN SUPPORT
OF HIS CLAIM OF ABSOLUTE PRIVILEGE, THE PRESIDENT'S COUNSEL URGES TWO
GROUNDS, ONE OF WHICH IS COMMON TO ALL GOVERNMENTS AND ONE OF WHICH IS
PECULIAR TO OUR SYSTEM OF SEPARATION OF POWERS.  THE FIRST GROUND IS
THE VALID NEED FOR PROTECTION OF COMMUNICATIONS BETWEEN HIGH GOVERNMENT
OFFICIALS AND THOSE WHO ADVISE AND ASSIST THEM IN THE PERFORMANCE OF
THEIR MANIFOLD DUTIES; THE IMPORTANCE OF THIS CONFIDENTIALITY IS TOO
PLAIN TO REQUIRE FURTHER DISCUSSION.  HUMAN EXPERIENCE TEACHES THAT
THOSE WHO EXPECT PUBLIC DISSEMINATION OF THEIR REMARKS MAY WELL TEMPER
CANDOR WITH A CONCERN FOR APPEARANCES AND FOR THEIR OWN INTERESTS TO
THE DETRIMENT OF THE DECISIONMAKING PROCESS.  /15/  WHATEVER THE NATURE
OF THE PRIVILEGE OF CONFIDENTIALITY OF PRESIDENTIAL COMMUNICATIONS IN
THE EXERCISE OF ART. II POWERS, THE PRIVILEGE CAN BE SAID TO DERIVE
FROM THE SUPREMACY OF EACH BRANCH WITHIN ITS OWN ASSIGNED AREA OF
CONSTITUTIONAL DUTIES.  CERTAIN POWERS AND PRIVILEGES FLOW FROM THE
NATURE OF ENUMERATED POWERS; /16/  THE PROTECTION OF THE
CONFIDENTIALITY OF PRESIDENTIAL COMMUNICATIONS HAS SIMILAR
CONSTITUTIONAL UNDERPINNINGS. 

THE SECOND GROUND ASSERTED BY THE PRESIDENT'S COUNSEL IN SUPPORT OF
THE CLAIM OF ABSOLUTE PRIVILEGE RESTS ON THE DOCTRINE OF SEPARATION OF
POWERS.  HERE IT IS ARGUED THAT THE INDEPENDENCE OF THE EXECUTIVE
BRANCH WITHIN ITS OWN SPHERE, HUMPHREY'S EXECUTOR V. UNITED STATES, 295
U.S. 602, 629 - 630 (1935); KILBOURN V. THOMPSON, 103 U.S. 168, 190 -
191 (1881), INSULATES A PRESIDENT FROM A JUDICIAL SUBPOENA IN AN
ONGOING CRIMINAL PROSECUTION, AND THEREBY PROTECTS CONFIDENTIAL 

HOWEVER, NEITHER THE DOCTRINE OF SEPARATION OF POWERS NOR THE NEED
FOR CONFIDENTIALITY OF HIGH-LEVEL COMMUNICATIONS, WITHOUT MORE, CAN
SUSTAIN AN ABSOLUTE, UNQUALIFIED PRESIDENTIAL PRIVILEGE OF IMMUNITY
FROM JUDICIAL PROCESS UNDER ALL CIRCUMSTANCES.  THE PRESIDENT'S NEED
FOR COMPLETE CANDOR AND OBJECTIVITY FROM ADVISERS CALLS FOR GREAT
DEFERENCE FROM THE COURTS.  HOWEVER, WHEN THE PRIVILEGE DEPENDS SOLELY
ON THE BROAD, UNDIFFERENTIATED CLAIM OF PUBLIC INTEREST IN THE
CONFIDENTIALITY OF SUCH CONVERSATIONS, A CONFRONTATION WITH OTHER
VALUES ARISES.  ABSENT A CLAIM OF NEED TO PROTECT MILITARY, DIPLOMATIC,
OR SENSITIVE NATIONAL SECURITY SECRETS, WE FIND IT DIFFICULT TO ACCEPT
THE ARGUMENT THAT EVEN THE VERY IMPORTANT INTEREST IN CONFIDENTIALITY
OF PRESIDENTIAL COMMUNICATIONS IS SIGNIFICANTLY DIMINISHED BY
PRODUCTION OF SUCH MATERIAL FOR IN CAMERA INSPECTION WITH ALL THE
PROTECTION THAT A DISTRICT COURT WILL BE OBLIGED TO PROVIDE. 

THE IMPEDIMENT THAT AN ABSOLUTE, UNQUALIFIED PRIVILEGE WOULD PLACE
IN THE WAY OF THE PRIMARY CONSTITUTIONAL DUTY OF THE JUDICIAL BRANCH TO
DO JUSTICE IN CRIMINAL PROSECUTIONS WOULD PLAINLY CONFLICT WITH THE
FUNCTION OF THE COURTS UNDER ART. III. 

IN DESIGNING THE STRUCTURE OF OUR GOVERNMENT AND DIVIDING AND
ALLOCATING THE SOVEREIGN POWER AMONG THREE CO-EQUAL BRANCHES, THE
FRAMERS OF THE CONSTITUTION SOUGHT TO PROVIDE A COMPREHENSIVE SYSTEM,
BUT THE SEPARATE POWERS WERE NOT INTENDED TO OPERATE WITH ABSOLUTE
INDEPENDENCE. 

     "WHILE THE CONSTITUTION DIFFUSES POWER THE BETTER TO SECURE

  LIBERTY, IT ALSO CONTEMPLATES THAT PRACTICE WILL INTEGRATE THE

  DISPERSED POWERS INTO A WORKABLE GOVERNMENT.  IT ENJOINS UPON ITS

  BRANCHES SEPARATENESS BUT INTERDEPENDENCE, AUTONOMY BUT

  RECIPROCITY."  YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S.,

  AT 635 (JACKSON, J., CONCURRING). 

TO READ THE ART. II POWERS OF THE PRESIDENT AS PROVIDING AN ABSOLUTE
PRIVILEGE AS AGAINST A SUBPOENA ESSENTIAL TO ENFORCEMENT OF CRIMINAL
STATUTES ON NO MORE THAT A GENERALIZED CLAIM OF THE PUBLIC INTEREST IN
CONFIDENTIALITY OF NONMILITARY AND NONDIPLOMATIC DISCUSSIONS WOULD
UPSET THE CONSTITUTIONAL BALANCE OF "A WORKABLE GOVERNMENT" AND GRAVELY
IMPAIR THE ROLE OF THE COURTS UNDER ART. III. 

C 

SINCE WE CONCLUDE THAT THE LEGITIMATE NEEDS OF THE JUDICIAL PROCESS
MAY OUTWEIGH PRESIDENTIAL PRIVILEGE, IT IS NECESSARY TO RESOLVE THOSE
COMPETING INTERESTS IN A MANNER THAT PRESERVES THE ESSENTIAL FUNCTIONS
OF EACH BRANCH.  THE RIGHT AND INDEED THE DUTY TO RESOLVE THAT QUESTION
DOES NOT FREE THE JUDICIARY FROM ACCORDING HIGH RESPECT TO THE
REPRESENTATIONS MADE ON BEHALF OF THE PRESIDENT.  UNITED STATES V.
BURR, 25 F.CAS.  187, 190, 191 - 192 (NO. 14,694) (CCVA.  1807). 

THE EXPECTATION OF A PRESIDENT TO THE CONFIDENTIALITY OF HIS
CONVERSATIONS AND CORRESPONDENCE, LIKE THE CLAIM OF CONFIDENTIALITY OF
JUDICIAL DELIBERATIONS, FOR EXAMPLE, HAS ALL THE VALUES TO WHICH WE
ACCORD DEFERENCE FOR THE PRIVACY OF ALL CITIZENS AND ADDED TO THOSE
VALUES THE NECESSITY FOR PROTECTION OF THE PUBLIC INTEREST IN CANDID,
OBJECTIVE, AND EVEN BLUNT OR HARSH OPINIONS IN PRESIDENTIAL DECISION
MAKING. 

A PRESIDENT AND THOSE WHO ASSIST HIM MUST BE FREE TO EXPLORE
ALTERNATIVES IN THE PROCESS OF SHAPING POLICIES AND MAKING DECISIONS
AND TO DO SO IN A WAY MANY WOULD BE UNWILLING TO EXPRESS EXCEPT
PRIVATELY.  THESE ARE THE CONSIDERATIONS JUSTIFYING A PRESUMPTIVE
PRIVILEGE FOR PRESIDENTIAL COMMUNICATIONS.  THE PRIVILEGE IS
FUNDAMENTAL TO THE OPERATION OF GOVERNMENT AND INEXTRICABLY ROOTED IN
THE SEPARATION OF POWERS UNDER THE CONSTITUTION.  /17/  IN NIXON V.
SIRICA, 159 U.S.APP.D.C. 58, 487 F.2D 700 (1973), THE COURT OF APPEALS
HELD THAT SUCH PRESIDENTIAL COMMUNICATIONS ARE "PRESUMPTIVELY
PRIVILEGED," ID., AT 75, 487 F.2D,AT 717, AND THIS POSITION IS ACCEPTED
BY BOTH PARTIES IN THE PRESENT LITIGATION.  WE AGREE WITH MR. CHIEF
JUSTICE MARSHALL'S OBSERVATION, THEREFORE, THAT "(IN NO CASE OF THIS
KIND WOULD A COURT BE REQUIRED TO PROCEED AGAINST THE PRESIDENT AS
AGAINST AN ORDINARY INDIVIDUAL."  UNITED STATES V. BURR, 25 F.CAS.,AT
192. 

BUT THIS PRESUMPTIVE PRIVILEGE MUST BE CONSIDERED IN LIGHT OF OUR
HISTORIC COMMITMENT TO THE RULE OF LAW.  THIS IS NOWHERE MORE
PROFOUNDLY MANIFEST THAN IN OUR VIEW THAT "THE TWOFOLD AIM (OF CRIMINAL
JUSTICE) IS THAT GUILT SHALL NOT ESCAPE OR INNOCENCE SUFFER."  BERGER
V. UNITED STATES, 295 U.S.,AT 88.  WE HAVE ELECTED TO EMPLOY AN
ADVERSARY SYSTEM OF CRIMINAL JUSTICE IN WHICH THE PARTIES CONTEST ALL
ISSUES BEFORE A COURT OF LAW.  THE NEED TO DEVELOP ALL RELEVANT FACTS
IN THE ADVERSARY SYSTEM IS BOTH FUNDAMENTAL AND COMPREHENSIVE.  THE
ENDS OF CRIMINAL JUSTICE WOULD BE DEFEATED IF JUDGMENTS WERE TO BE
FOUNDED ON A PARTIAL OR SPECULATIVE PRESENTATION OF THE FACTS.  THE
VERY INTEGRITY OF THE JUDICIAL SYSTEM AND PUBLIC CONFIDENCE IN THE
SYSTEM DEPEND ON FULL DISCLOSURE OF ALL THE FACTS, WITHIN THE FRAMEWORK
OF THE RULES OF EVIDENCE.  TO ENSURE THAT JUSTICE IS DONE, IT IS
IMPERATIVE TO THE FUNCTION OF COURTS THAT COMPULSORY PROCESS BE
AVAILABLE FOR THE PRODUCTION OF EVIDENCE NEEDED EITHER BY THE
PROSECUTION OR BY THE DEFENSE. 

ONLY RECENTLY THE COURT RESTATED THE ANCIENT PROPOSITION OF LAW,
ALBEIT IN THE CONTEXT OF A GRAND JURY INQUIRY RATHER THAN A TRIAL, 

"THAT 'THE PUBLIC . . . HAS A RIGHT TO EVERY MAN'S EVIDENCE,'
EXCEPT FOR THOSE PERSONS PROTECTED BY A CONSTITUTIONAL, COMMON-LAW, OR
STATUTORY PRIVILEGE, UNITED STATES V. BRYAN, 339 U.S. (323, 331
(1950)); BLACKMER V. UNITED STATES, 284 U.S. 421, 438 (1932) . . .." 
BRANZBURG V. HAYES, 408 U.S. 665, 688 (1972).  THE PRIVILEGES REFERRED
TO BY THE COURT ARE DESIGNED TO PROTECT WEIGHTY AND LEGITIMATE
COMPETING INTERESTS.  THUS, THE FIFTH AMENDMENT TO THE CONSTITUTION
PROVIDES THAT NO MAN "SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF."  AND, GENERALLY, AN ATTORNEY OR A PRIEST MAY
NOT BE REQUIRED TO DISCLOSE WHAT HAS BEEN REVEALED IN PROFESSIONAL
CONFIDENCE.  THESE AND OTHER INTERESTS ARE RECOGNIZED IN LAW BY
PRIVILEGES AGAINST FORCED DISCLOSURE, ESTABLISHED IN THE CONSTITUTION,
BY STATUTE, OR AT COMMON LAW.  WHATEVER THEIR ORIGINS, THESE EXCEPTIONS
TO THE DEMAND FOR EVERY MAN'S EVIDENCE ARE NOT LIGHTLY CREATED NOR
EXPANSIVELY CONSTRUED, FOR THEY ARE IN DEROGATION OF THE SEARCH FOR
TRUTH.  /18/ 

IN THIS CASE THE PRESIDENT CHALLENGES A SUBPOENA SERVED ON HIM AS A
THIRD PARTY REQUIRING THE PRODUCTION OF MATERIALS FOR USE IN A CRIMINAL
PROSECUTION; HE DOES SO ON THE CLAIM THAT HE HAS A PRIVILEGE AGAINST
DISCLOSURE OF CONFIDENTIAL COMMUNICATIONS.  HE DOES NOT PLACE HIS CLAIM
OF PRIVILEGE ON THE GROUND THEY ARE MILITARY OR DIPLOMATIC SECRETS.  AS
TO THESE AREAS OF ART. II DUTIES THE COURTS HAVE TRADITIONALLY SHOWN
THE UTMOST DEFERENCE TO PRESIDENTIAL RESPONSIBILITIES.  IN C. & S. AIR
LINES V. WATERMAN S. S. CORP., 333 U.S. 103, 111 (1948), DEALING WITH
PRESIDENTIAL AUTHORITY INVOLVING FOREIGN POLICY CONSIDERATIONS, THE
COURT SAID: 

"THE PRESIDENT, BOTH AS COMMANDER-IN-CHIEF AND AS THE NATION'S ORGAN
FOR FOREIGN AFFAIRS, HAS AVAILABLE INTELLIGENCE SERVICES WHOSE REPORTS
ARE NOT AND OUGHT NOT TO BE PUBLISHED TO THE WORLD.  IT WOULD BE
INTOLERABLE THAT COURTS, WITHOUT THE RELEVANT INFORMATION, SHOULD
REVIEW AND PERHAPS NULLIFY ACTIONS OF THE EXECUTIVE TAKEN ON
INFORMATION PROPERLY HELD SECRET."  IN UNITED STATES V. REYNOLDS, 345
U.S. 1 (1953), DEALING WITH A CLAIMANT'S DEMAND FOR EVIDENCE IN A
DAMAGE CASE AGAINST THE GOVERNMENT THE COURT SAID: 

"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."  ID., AT 10.  NO CASE OF THE COURT, HOWEVER, HAS EXTENDED
THIS HIGH DEGREE OF DEFERENCE TO A PRESIDENT'S GENERALIZED INTEREST IN
CONFIDENTIALITY.  NOWHERE IN THE CONSTITUTION, AS WE HAVE NOTED
EARLIER, IS THERE ANY EXPLICIT REFERENCE TO A PRIVILEGE OF
CONFIDENTIALITY, YET TO THE EXTENT THIS INTEREST RELATES TO THE
EFFECTIVE DISCHARGE OF A PRESIDENT'S POWERS, IT IS CONSTITUTIONALLY
BASED. 

THE RIGHT TO THE PRODUCTION OF ALL EVIDENCE AT A CRIMINAL TRIAL
SIMILARLY HAS CONSTITUTIONAL DIMENSIONS.  THE SIXTH AMENDMENT
EXPLICITLY CONFERS UPON EVERY DEFENDANT IN A CRIMINAL TRIAL THE RIGHT
"TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM" AND "TO HAVE
COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR."  MOREOVER,
THE FIFTH AMENDMENT ALSO GUARANTEES THAT NO PERSON SHALL BE DEPRIVED OF
LIBERTY WITHOUT DUE PROCESS OF LAW.  IT IS THE MANIFEST DUTY OF THE
COURTS TO VINDICATE THOSE GUARANTEES, AND TO ACCOMPLISH THAT IT IS
ESSENTIAL THAT ALL RELEVANT AND ADMISSIBLE EVIDENCE BE PRODUCED. 

IN THIS CASE WE MUST WEIGH THE IMPORTANCE OF THE GENERAL PRIVILEGE
OF CONFIDENTIALITY OF PRESIDENTIAL COMMUNICATIONS IN PERFORMANCE OF HIS
RESPONSIBILITIES AGAINST THE INROADS OF SUCH A PRIVILEGE ON THE FAIR
ADMINISTRATION OF CRIMINAL JUSTICE.  /19/  THE INTEREST IN PRESERVING
CONFIDENTIALITY IS WEIGHTY INDEED AND ENTITLED TO GREAT RESPECT. 
HOWEVER, WE CANNOT CONCLUDE THAT ADVISERS WILL BE MOVED TO TEMPER THE
CANDOR OF THEIR REMARKS BY THE INFREQUENT OCCASIONS OF DISCLOSURE
BECAUSE OF THE POSSIBILITY THAT SUCH CONVERSATIONS WILL BE CALLED FOR
IN THE CONTEXT OF A CRIMINAL PROSECUTION.  /20/ 

ON THE OTHER HAND, THE ALLOWANCE OF THE PRIVILEGE TO WITHHOLD
EVIDENCE THAT IS DEMONSTRABLY RELEVANT IN A CRIMINAL TRIAL WOULD CUT
DEEPLY INTO THE GUARANTEE OF DUE PROCESS OF LAW AND GRAVELY IMPAIR THE
BASIC FUNCTION OF THE COURTS.  A PRESIDENT'S ACKNOWLEDGED NEED FOR
CONFIDENTIALITY IN THE COMMUNICATIONS OF HIS OFFICE IS GENERAL IN
NATURE, WHEREAS THE CONSTITUTIONAL NEED FOR PRODUCTION OF RELEVANT
EVIDENCE IN A CRIMINAL PROCEEDING IS SPECIFIC AND CENTRAL TO THE FAIR
ADJUDICATION OF A PARTICULAR CRIMINAL CASE IN THE ADMINISTRATION OF
JUSTICE.  WITHOUT ACCESS TO SPECIFIC FACTS A CRIMINAL PROSECUTION MAY
BE TOTALLY FRUSTRATED.  THE PRESIDENT'S BROAD INTEREST IN
CONFIDENTIALITY OF COMMUNICATIONS WILL NOT BE VITIATED BY DISCLOSURE OF
A LIMITED NUMBER OF CONVERSATIONS PRELIMINARILY SHOWN TO HAVE SOME
BEARING ON THE PENDING CRIMINAL CASES. 

WE CONCLUDE THAT WHEN THE GROUND FOR ASSERTING PRIVILEGE AS TO
SUBPOENAED MATERIALS SOUGHT FOR USE IN A CRIMINAL TRIAL IS BASED ONLY
ON THE GENERALIZED INTEREST IN CONFIDENTIALITY, IT CANNOT PREVAIL OVER
THE FUNDAMENTAL DEMANDS OF DUE PROCESS OF LAW IN THE FAIR
ADMINISTRATION OF CRIMINAL JUSTICE.  THE GENERALIZED ASSERTION OF
PRIVILEGE MUST YIELD TO THE DEMONSTRATED, SPECIFIC NEED FOR EVIDENCE IN
A PENDING CRIMINAL TRIAL. 

   D 

WE HAVE EARLIER DETERMINED THAT THE DISTRICT COURT DID NOT ERR IN
AUTHORIZING THE ISSUANCE OF THE SUBPOENA.  IF A PRESIDENT CONCLUDES
THAT COMPLIANCE WITH A SUBPOENA WOULD BE INJURIOUS TO THE PUBLIC
INTEREST HE MAY PROPERLY, AS WAS DONE HERE, INVOKE A CLAIM OF PRIVILEGE
ON THE RETURN OF THE SUBPOENA.  UPON RECEIVING A CLAIM OF PRIVILEGE
FROM THE CHIEF EXECUTIVE, IT BECAME THE FURTHER DUTY OF THE DISTRICT
COURT TO TREAT THE SUBPOENAED MATERIAL AS PRESUMPTIVELY PRIVILEGED AND
TO REQUIRE THE SPECIAL PROSECUTOR TO DEMONSTRATE THAT THE PRESIDENTIAL
MATERIAL WAS "ESSENTIAL TO THE JUSTICE OF THE (PENDING CRIMINAL)
CASE."  UNITED STATES V. BURR, 25 F.CAS.,AT 192.  HERE THE DISTRICT
COURT TREATED THE MATERIAL AS PRESUMPTIVELY PRIVILEGED, PROCEEDED TO
FIND THAT THE SPECIAL PROSECUTOR HAD MADE A SUFFICIENT SHOWING TO REBUT
THE PRESUMPTION, AND ORDERED AN IN CAMERA EXAMINATION OF THE SUBPOENAED
MATERIAL.  ON THE BASIS OF OUR EXAMINATION OF THE RECORD WE ARE UNABLE
TO CONCLUDE THAT THE DISTRICT COURT ERRED IN ORDERING THE INSPECTION. 
ACCORDINGLY WE AFFIRM THE ORDER OF THE DISTRICT COURT THAT SUBPOENAED
MATERIALS BE TRANSMITTED TO THAT COURT.  WE NOW TURN TO THE IMPORTANT
QUESTION OF THE DISTRICT COURT'S RESPONSIBILITIES IN CONDUCTING THE IN
CAMERA EXAMINATION OF PRESIDENTIAL MATERIALS OR COMMUNICATIONS
DELIVERED UNDER THE COMPULSION OF THE SUBPOENA DUCES TECUM.        E 

ENFORCEMENT OF THE SUBPOENA DUCES TECUM WAS STAYED PENDING THIS
COURT'S RESOLUTION OF THE ISSUES RAISED BY THE PETITIONS FOR
CERTIORARI.  THOSE ISSUES NOW HAVING BEEN DISPOSED OF, THE MATTER OF
IMPLEMENTATION WILL REST WITH THE DISTRICT COURT.  "(THE GUARD,
FURNISHED TO (THE PRESIDENT) TO PROTECT HIM FROM BEING HARASSED BY
VEXATIOUS AND UNNECESSARY SUBPOENAS, IS TO BE LOOKED FOR IN THE CONDUCT
OF A (DISTRICT) COURT AFTER THOSE SUBPOENAS HAVE ISSUED; NOT IN ANY
CIRCUMSTANCE WHICH IS TO PRECEDE THEIR BEING ISSUED."  UNITED STATES V.
BURR, 25 F.CAS.,AT 34.  STATEMENTS THAT MEET THE TEST OF ADMISSIBILITY
AND RELEVANCE MUST BE ISOLATED; ALL OTHER MATERIAL MUST BE EXCISED.  AT
THIS STAGE THE DISTRICT COURT IS NOT LIMITED TO REPRESENTATIONS OF THE
SPECIAL PROSECUTOR AS TO THE EVIDENCE SOUGHT BY THE SUBPOENA; THE
MATERIAL WILL BE AVAILABLE TO THE DISTRICT COURT.  IT IS ELEMENTARY
THAT IN CAMERA INSPECTION OF EVIDENCE IS ALWAYS A PROCEDURE CALLING FOR
SCRUPULOUS PROTECTION AGAINST ANY RELEASE OR PUBLICATION OF MATERIAL
NOT FOUND BY THE COURT, AT THAT STAGE, PROBABLY ADMISSIBLE IN EVIDENCE
AND RELEVANT TO THE ISSUES OF THE TRIAL FOR WHICH IT IS SOUGHT.  THAT
BEING TRUE OF AN ORDINARY SITUATION, IT IS OBVIOUS THAT THE DISTRICT
COURT HAS A VERY HEAVY RESPONSIBILITY TO SEE TO IT THAT PRESIDENTIAL
CONVERSATIONS, WHICH ARE EITHER NOT RELEVANT OR NOT ADMISSIBLE, ARE
ACCORDED THAT HIGH DEGREE OF RESPECT DUE THE PRESIDENT OF THE UNITED
STATES.  MR. CHIEF JUSTICE MARSHALL, SITTING AS A TRIAL JUDGE IN THE
BURR CASE, SUPRA, WAS EXTRAORDINARILY CAREFUL TO POINT OUT THAT 

"(IN NO CASE OF THIS KIND WOULD A COURT BE REQUIRED TO PROCEED
AGAINST THE PRESIDENT AS AGAINST AN ORDINARY INDIVIDUAL."  25 F.CAS.,AT
192.  MARSHALL'S STATEMENT CANNOT BE READ TO MEAN IN ANY SENSE THAT A
PRESIDENT IS ABOVE THE LAW, BUT RELATES TO THE SINGULARLY UNIQUE ROLE
UNDER ART. II OF A PRESIDENT'S COMMUNICATIONS AND ACTIVITIES, RELATED
TO THE PERFORMANCE OF DUTIES UNDER THAT ARTICLE.  MOREOVER, A
PRESIDENT'S COMMUNICATIONS AND ACTIVITIES ENCOMPASS A VASTLY WIDER
RANGE OF SENSITIVE MATERIAL THAN WOULD BE TRUE OF ANY "ORDINARY
INDIVIDUAL."  IT IS THEREFORE NECESSARY /21/  IN THE PUBLIC INTEREST TO
AFFORD PRESIDENTIAL CONFIDENTIALITY THE GREATEST PROTECTION CONSISTENT
WITH THE FAIR ADMINISTRATION OF JUSTICE.  THE NEED FOR CONFIDENTIALITY
EVEN AS TO IDLE CONVERSATIONS WITH ASSOCIATES IN WHICH CASUAL REFERENCE
MIGHT BE MADE CONCERNING POLITICAL LEADERS WITHIN THE COUNTRY OR
FOREIGN STATESMEN IS TOO OBVIOUS TO CALL FOR FURTHER TREATMENT.  WE
HAVE NO DOUBT THAT THE DISTRICT JUDGE WILL AT ALL TIMES ACCORD TO
PRESIDENTIAL RECORDS THAT HIGH DEGREE OF DEFERENCE SUGGESTED IN UNITED
STATES V. BURR, SUPRA, AND WILL DISCHARGE HIS RESPONSIBILITY TO SEE TO
IT THAT UNTIL RELEASED TO THE SPECIAL PROSECUTOR NO IN CAMERA MATERIAL
IS REVEALED TO ANYONE.  THIS BURDEN APPLIES WITH EVEN GREATER FORCE TO
EXCISED MATERIAL; ONCE THE DECISION IS MADE TO EXCISE, THE MATERIAL IS
RESTORED TO ITS PRIVILEGED STATUS AND SHOULD BE RETURNED UNDER SEAL TO
ITS LAWFUL CUSTODIAN. 

SINCE THIS MATTER CAME BEFORE THE COURT DURING THE PENDENCY OF A
CRIMINAL PROSECUTION, AND ON REPRESENTATIONS THAT TIME IS OF THE
ESSENCE, THE MANDATE SHALL ISSUE FORTHWITH. 

              AFFIRMED. 

/1/  SEE 28 U.S.C. 1254(1) AND 2101(E) AND OUR RULE 20.  SEE, E.G.,
YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579 (1952); UNITED
STATES V. UNITED MINE WORKERS, 330 U.S. 258 (1947); CARTER V. CARTER
COAL CO, 298 U.S. 238 (1936); RICKERT RICE MILLS V. FONTENOT, 297 U.S.
110 (1936); RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330
(1935); NORMAN V. BALTIMORE & OHIO R. CO, 294 U.S. 240 (1935). 

/2/  THE CROSS-PETITION IN NO. 73 - 1834 RAISED THE ISSUE WHETHER
THE GRAND JURY ACTED WITHIN ITS AUTHORITY IN NAMING THE PRESIDENT AS AN
UNINDICTED CONCONSPIRATOR.  SINCE WE FIND RESOLUTION OF THIS ISSUE
UNNECESSARY TO RESOLUTION OF THE QUESTION WHETHER THE CLAIM OF
PRIVILEGE IS TO PREVAIL, THE CROSS-PETITION FOR CERTIORARI IS DISMISSED
AS IMPROVIDENTLY GRANTED AND THE REMAINDER OF THIS OPINION IS CONCERNED
WITH THE ISSUES RAISED IN NO. 73 - 1766.  ON JUNE 19, 1974, THE
PRESIDENT'S COUNSEL MOVED FOR DISCLOSURE AND TRANSMITTAL TO THIS COURT
OF ALL EVIDENCE PRESENTED TO THE GRAND JURY RELATING TO ITS ACTION IN
NAMING THE PRESIDENT AS AN UNINDICTED COCONSPIRATOR.  ACTION ON THIS
MOTION WAS DEFERRED PENDING ORAL ARGUMENT OF THE CASE AND IS NOW
DENIED. 

/3/  THE SEVEN DEFENDANTS WERE JOHN N. MITCHELL, H.R. HALDEMAN, JOHN
D. EHRLICHMAN, CHARLES W. COLSON, ROBERT C. MARDIAN, KENNETH W.
PARKINSON, AND GORDON STRACHAN.  EACH HAD OCCUPIED EITHER A POSITION OF
RESPONSIBILITY ON THE WHITE HOUSE STAFF OR A POSITION WITH THE
COMMITTEE FOR THE RE-ELECTION OF THE PRESIDENT.  COLSON ENTERED A
GUILTY PLEA ON ANOTHER CHARGE AND IS NO LONGER A DEFENDANT. 

/4/  THE PRESIDENT ENTERED A SPECIAL APPEARANCE IN THE DISTRICT COURT
ON JUNE 6 AND REQUESTED THAT COURT TO LIFT ITS PROTECTIVE ORDER
REGARDING THE NAMING OF CERTAIN INDIVIDUALS AS COCONSPIRATORS AND TO
ANY ADDITIONAL EXTENT DEEMED APPROPRIATE BY THE COURT.  THIS MOTION OF
THE PRESIDENT WAS BASED ON THE GROUND THAT THE DISCLOSURES TO THE NEWS
MEDIA MADE THE REASONS FOR CONTINUANCE OF THE PROTECTIVE ORDER NO
LONGER MEANINGFUL.  ON JUNE 7, THE DISTRICT COURT REMOVED ITS
PROTECTIVE ORDER AND, ON JUNE 10, COUNSEL FOR BOTH PARTIES JOINTLY
MOVED THIS COURT TO UNSEAL THOSE PARTS OF THE RECORD WHICH RELATED TO
THE ACTION OF THE GRAND JURY REGARDING THE PRESIDENT.  AFTER RECEIVING
A STATEMENT IN OPPOSITION FROM THE DEFENDANTS, THIS COURT DENIED THAT
MOTION ON JUNE 15, 1974, EXCEPT FOR THE GRAND JURY'S IMMEDIATE FINDING
RELATING TO THE STATUS OF THE PRESIDENT AS AN UNINDICTED
COCONSPIRATOR.  417 U.S. 960. 

/5/  THE SPECIFIC MEETINGS AND CONVERSATIONS ARE ENUMERATED IN A
SCHEDULE ATTACHED TO THE SUBPOENA.  APP. 42A - 46A. 

/6/  AT THE JOINT SUGGESTION OF THE SPECIAL PROSECUTOR AND COUNSEL
FOR THE PRESIDENT, AND WITH THE APPROVAL OF COUNSEL FOR THE DEFENDANTS,
FURTHER PROCEEDINGS IN THE DISTRICT COURT WERE HELD IN CAMERA. 

/7/  THE PARTIES HAVE SUGGESTED THAT THIS COURT HAS JURISDICTION ON
OTHER GROUNDS.  IN VIEW OF OUR CONCLUSION THAT THERE IS JURISDICTION
UNDER 28 U.S.C. 1254(1) BECAUSE THE DISTRICT COURT'S ORDER WAS
APPEALABLE, WE NEED NOT DECIDE WHETHER OTHER JURISDICTIONAL VEHICLES
ARE AVAILABLE. 

/8/  THE REGULATION ISSUED BY THE ATTORNEY GENERAL PURSUANT TO HIS
STATUTORY AUTHORITY, VESTS IN THE SPECIAL PROSECUTOR PLENARY AUTHORITY
TO CONTROL THE COURSE OF INVESTIGATIONS AND LITIGATION RELATED TO "ALL
OFFENSES ARISING OUT OF THE 1972 PRESIDENTIAL ELECTION FOR WHICH THE
SPECIAL PROSECUTOR DEEMS IT NECESSARY AND APPROPRIATE TO ASSUME
RESPONSIBILITY, ALLEGATIONS INVOLVING THE PRESIDENT, MEMBERS OF THE
WHITE HOUSE STAFF, OR PRESIDENTIAL APPOINTEES, AND ANY OTHER MATTERS
WHICH HE CONSENTS TO HAVE ASSIGNED TO HIM BY THE ATTORNEY GENERAL."  38
FED.REG.  30739, AS AMENDED BY 38 FED.REG.  32805.  IN PARTICULAR, THE
SPECIAL PROSECUTOR WAS GIVEN FULL AUTHORITY, INTER ALIA, "TO CONTEST
THE ASSERTION OF 'EXECUTIVE PRIVILEGE'.  . . AND HANDLE) ALL ASPECTS OF
ANY CASES WITHIN HIS JURISDICTION."  ID., AT 30739.  THE REGULATION
THEN GOES ON TO PROVIDE: 

"IN EXERCISING THIS AUTHORITY, THE SPECIAL PROSECUTOR WILL HAVE THE
GREATEST DEGREE OF INDEPENDENCE THAT IS CONSISTENT WITH THE ATTORNEY
GENERAL'S STATUTORY ACCOUNTABILITY FOR ALL MATTERS FALLING WITHIN THE
JURISDICTION OF THE DEPARTMENT OF JUSTICE.  THE ATTORNEY GENERAL WILL
NOT COUNTERMAND OR INTERFERE WITH THE SPECIAL PROSECUTOR'S DECISIONS OR
ACTIONS.  THE SPECIAL PROSECUTOR WILL DETERMINE WHETHER AND TO WHAT
EXTENT HE WILL INFORM OR CONSULT WITH THE ATTORNEY GENERAL ABOUT THE
CONDUCT OF HIS DUTIES AND RESPONSIBILITIES.  IN ACCORDANCE WITH
ASSURANCES GIVEN BY THE PRESIDENT TO THE ATTORNEY GENERAL THAT THE
PRESIDENT WILL NOT EXERCISE HIS CONSTITUTIONAL POWERS TO EFFECT THE
DISCHARGE OF THE SPECIAL PROSECUTOR OR TO LIMIT THE INDEPENDENCE THAT
HE IS HEREBY GIVEN, THE SPECIAL PROSECUTOR WILL NOT BE REMOVED FROM HIS
DUTIES EXCEPT FOR EXTRAORDINARY IMPROPRIETIES ON HIS PART AND WITHOUT
THE PRESIDENT' FIRST CONSULTING THE MAJORITY AND THE MINORITY LEADERS
AND CHAIRMEN AND RANKING MINORITY MEMBERS OF THE JUDICIARY COMMITTEES
OF THE SENATE AND HOUSE OF REPRESENTATIVES AND ASCERTAINING THAT THEIR
CONSENSUS IS IN ACCORD WITH HIS PROPOSED ACTION." 

/9/  THAT THIS WAS THE UNDERSTANDING OF ACTING ATTORNEY GENERAL
ROBERT BORK, THE AUTHOR OF THE REGULATION ESTABLISHING THE INDEPENDENCE
OF THE SPECIAL PROSECUTOR, IS SHOWN BY HIS TESTIMONY BEFORE THE SENATE
JUDICIARY COMMITTEE: 

"ALTHOUGH IT IS ANTICIPATED THAT MR. JAWORSKI WILL RECIEVE
COOPERATION FROM THE WHITE HOUSE IN GETTING ANY EVIDENCE HE FEELS HE
NEEDS TO CONDUCT INVESTIGATIONS AND PROSECUTIONS, IT IS CLEAR AND
UNDERSTOOD ON ALL SIDES THAT HE HAS THE POWER TO USE JUDICIAL PROCESSES
TO PURSUE EVIDENCE IF DISAGREEMENT SHOULD DEVELOP." 

HEARINGS ON THE SPECIAL PROSECUTOR BEFORE THE SENATE COMMITTEE ON
THE JUDICIARY, 93D CONG., 1ST SESS., PT. 2, P. 450 (1973).  ACTING
ATTORNEY GENERAL BORK GAVE SIMILAR ASSURANCES TO THE HOUSE SUBCOMMITTEE
ON CRIMINAL JUSTICE.  HEARINGS ON H.J. RES. 784 AND H. R. 10937 BEFORE
THE SUBCOMMITTEE ON CRIMINAL JUSTICE OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 93D CONG., 1ST SESS., 266 (1973).  AT HIS CONFIRMATION
HEARINGS, ATTORNEY GENERAL WILLIAM SAXBE TESTIFIED THAT HE SHARED
ACTING ATTORNEY GENERAL BORK'S VIEWS CONCERNING THE SPECIAL
PROSECUTOR'S AUTHORITY TO TEST ANY CLAIM OF EXECUTIVE PRIVILEGE IN THE
COURTS.  HEARINGS ON THE NOMINATION OF WILLIAM B. SAXBE TO BE ATTORNEY
GENERAL BEFORE THE SENATE COMMITTEE ON THE JUDICIARY, 93D CONG., 1ST
SESS., 9 (1973). 

/10/  AT HIS CONFIRMATION HEARINGS, ATTORNEY GENERAL WILLIAM SAXBE
TESTIFIED THAT HE AGREED WITH THE REGULATION ADOPTED BY ACTING ATTORNEY
GENERAL BORK AND WOULD NOT REMOVE THE SPECIAL PROSECUTOR EXCEPT FOR
"GROSS IMPROPRIETY."  ID., AT 5 - 5, 8 - 10.  THERE IS NO CONTENTION
HERE THAT THE SPECIAL PROSECUTOR IS GUILTY OF ANY SUCH IMPROPRIETY. 

/11/  THE COURT QUOTED A STATEMENT OF A MEMBER OF THE ADVISORY
COMMITTEE THAT THE PURPOSE OF THE RULE WAS TO BRING DOCUMENTS INTO
COURT "IN ADVANCE OF THE TIME THAT THEY ARE OFFERED IN EVIDENCE, SO
THAT THEY MAY THEN BE INSPECTED IN ADVANCE, FOR THE PURPOSE.  . . OF
ENABLING THE PARTY TO SEE WHETHER HE CAN USE (THEM) OR WHETHER HE WANTS
TO USE (THEM)."  341 U.S. 214, 220 N. 5.  THE MANUAL FOR COMPLEX AND
MULTIDISTRICT LITIGATION PUBLISHED BY THE FEDERAL JUDICIAL CENTER
RECOMMENDS THAT RULE 17(C) BE ENCOURAGED IN COMPLEX CRIMINAL CASES IN
ORDER THAT EACH PARTY MAY BE COMPELLED TO PRODUCE ITS DOCUMENTARY
EVIDENCE WELL IN ADVANCE OF TRIAL AND IN ADVANCE OF THE TIME IT IS TO
BE OFFERED.  P. 150. 

/12/  THE DISTRICT COURT FOUND HERE THAT IT WAS FACED WITH "THE MORE
UNUSUAL SITUATION . . . WHERE THE SUBPOENA, RATHER THAN BEING DIRECTED
TO THE GOVERNMENT BY DEFENDANTS, ISSUES TO WHAT, AS A PRACTICAL MATTER,
IS A THIRD PARTY."  UNITED SUGGESTS THAT THE EVIDENTIARY REQUIREMENT OF
BOWMAN DAIRY CO. AND IOZIA DOES NOT APPLY IN TIS FULL VIGOR WHEN THE
SUBPOENA DUCES TECUM IS ISSUED TO THIRD PARTIES RATHER THEN TO
GOVERNMENT PROSECUTORS.  BRIEF FOR UNITED STATES 128 - 129.  WE NEED
NOT DECIDE WHETHER A LOWER STANDARD EXISTS BECAUSE WE ARE SATISFIED
THAT THE RELEVANCE AND EVIDENTIARY NATURE OF THE SUBPOENAED TAPES WERE
SUFFICIENTLY SHOWN AS A PRELIMINARY MATTER TO WARRANT THE DISTRICT
COURT'S REFUSAL TO QUASH THE SUBPOENA. 

/13/  SUCH STATEMENTS ARE DECLARATIONS BY A PARTY DEFENDANT THAT
"WOULD SURMOUNT ALL OBJECTIONS BASED ON THE HEARSAY RULE . . ."  AND,
AT LEAST AS TO THE DECLARANT HIMSELF, "WOULD BE ADMISSIBLE FOR WHATEVER
INFERENCES"  MIGHT BE REASONABLY DRAWN.  UNITED STATES V. MATLOCK, 415
U.S. 164, 172 (1974).  ON LEE V. UNITED STATES, 343 U.S. 747, 757
(1952) SEE ALSO C. MCCORMICK, EVIDENCE 270, PP. 651 - 652 (2D ED.
1972). 

/14/  AS A PRELIMINARY MATTER, THERE MUST BE SUBSTANTIAL,
INDEPENDENT EVIDENCE OF THE CONSPIRACY, AT LEAST ENOUGH TO TAKE THE
QUESTION TO THE JURY.  UNITED STATES V. VAUGHT, 485 F.2D 320, 323 (CA4
1973); UNITED STATES V. HOFFA, 349 F.2D 20, 41 - 42 (CA6 1965), AFF'D
ON OTHER GROUNDS, 385 U.S. 293 (1966); UNITED STATES V. SANTOS, 385
F.2D 43, 45 (CA7 1967), CERT. DENIED, 390 U.S. 954 (1968); UNITED
STATES V. MORTON, 483 F.2D 573, 576 (CA8 1973); UNITED STATES V.
SPANOS, 462 F.2D 1012, 1014 (CA9 1972); CARBO V. UNITED STATES, 314
F.2D 718, 737 (CA9 1963), CERT. DENIED, 377 U.S. 953 (1964).  WHETHER
THE STANDARD HAS BEEN SATISFIED IN A QUESTION OF ADMISSIBILITY OF
EVIDENCE TO BE DECIDED BY THE TRIAL JUDGE. 

/15/  THERE IS NOTHING NOVEL ABOUT GOVERNMENTAL CONFIDENTIALITY. 
THE MEETINGS OF THE CONSTITUTIONAL CONVENTION IN 1787 WERE CONDUCTED IN
COMPLETE PRIVACY.  1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION
OF 1787, PP. XI - XXV (1911).  MOREOVER, ALL RECORDS OF THOSE MEETINGS
WERE SEALED FOR MORE THAN 30 YEARS AFTER THE CONVENTION.  SEE 3 STAT.
475, 15TH CONG., 1ST SESS., RES. 8 (1818).  MOST OF THE FRAMERS
ACKNOWLEDGED THAT WITHOUT SECRECY NO CONSTITUTION OF THE KIND THAT WAS
DEVELOPED COULD HAVE BEEN WRITTEN.  C. WARREN, THE MAKING OF THE
CONSTITUTION 134 - 139 (1937).     /16/  THE SPECIAL PROSECUTOR ARGUES
THAT THERE IS NO PROVISION IN THE CONSTITUTION FOR A PRESIDENTIAL
PRIVILEGE AS TO THE PRESIDENT'S COMMUNICATIONS CORRESPONDING TO THE
PRIVILEGE OF MEMBERS OF CONGRESS UNDER THE SPEECH OF DEBATE CLAUSE. 
BUT THE SILENCE OF THE CONSTITUTION ON THIS SCORE IS NOT DISPOSITIVE. 
"THE RULE OF CONSTITUTIONAL INTERPRETATION ANNOUNCED IN MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, THAT THAT WHICH WAS REASONABLY APPROPRIATE AND
RELEVANT TO THE EXERCISE OF A GRANTED POWER WAS TO BE CONSIDERED AS
ACCOMPANYING THE GRANT, HAS BEEN SO UNIVERSALLY APPLIED THAT IT
SUFFICES MERELY TO STATE IT."  MARSHALL V. GORDON, 243 U.S. 521, 537
(1917).     /17/  "FREDOM OF COMMUNICATION VITAL TO FULFILLMENT OF THE
AIMS OF WHOLESOME RELATIONSHIPS IS OBTAINED ONLY BE REMOVING THE
SPECTER OF COMPELLED DISCLOSURE . . ..  (GOVERNMENT . . . NEEDS OPEN
BUT PROTECTED CHANNELS FOR THE KIND OF PLAIN TALK THAT IS ESSENTIAL TO
THE QUALITY OF ITS FUNCTIONING."  CARL ZEISS STIFTUNG V. V.E.B. CARL
ZEISS, JENA, 40 F.R.D. 318, 325 (DC 1966).  SEE NIXON V. SIRICA, 159
U.S.APP.D.C. 58, 71, 487 F.2D 700, 713 (1973); KAISER ALUMINUM & CHEM. 
CORP.  V. UNITED STATES, 141 CT.CL. 38, 157 F.SUPP.  939 (1958)
(REED,J.); THE FEDERALIST, NO. 64 (S.MITTELL ED. 1938). 

/18/  BECAUSE OF THE KEY ROLE OF THE TESTIMONY OF WITNESSES IN THE
JUDICIAL PROCESS, COURTS HAVE HISTORICALLY BEEN CAUTIOUS ABOUT
PRIVILEGES.  MR. JUSTICE FRANKFURTER, DISSENTING IN ELKINS V. UNITED
STATES, 364 U.S. 206, 234 (1960), SAID OF THIS:  "LIMITATIONS ARE
PROPERLY PLACED UPON THE OPERATION OF THIS GENERAL PRINCIPLE ONLY TO
THE VERY LIMITED EXTENT THAT PERMITTING A REFUSAL TO TESTIFY OR
EXCLUDING RELEVANT EVIDENCE HAS A PUBLIC GOOD TRANSCENTDING THE
NORMALLY PREDOMINANT PRINCIPLE OF UTILIZING ALL RATIONAL MEANS FOR
ASCERTAINING TRUTH." 

/19/ WE ARE NOT HERE CONCERNED WITH THE BALANCE BETWEEN THE
PRESIDENT'S GENERALIZED INTEREST IN CONFIDENTIALITY AND THE NEED FOR
RELEVANT EVIDENCE IN CIVIL LITIGATION, NOR WITH THAT BETWEEN THE
CONFIDENTIALITY INTEREST AND CONGRESSIONAL DEMANDS FOR INFORMATION, NOR
WITH THE PRESIDENT'S INTEREST IN PRESERVING STATE SECRETS.  WE ADDRESS
ONLY THE CONFLICT BETWEEN THE PRESIDENT'S ASSERTION OF A GENERALIZED
PRIVILEGE OF CONFIDENTIALITY AND THE CONSTITUTIONAL NEED FOR RELEVANT
EVIDENCE IN CRIMINAL TRIALS. 

/20/  MR. JUSTICE CARDOZO MADE THIS POINT IN AN ANALOGOUS CONTEXT. 
SPEAKING FOR A UNANIMOUS COURT IN CLARK V. UNITED STATES, 289 U.S.1
(1933), HE EMPHASIZED THE IMPORTANCE OF MAINTAINING THE SECRECY OF THE
DELIBERATIONS OF A PETIT JURY IN A CRIMINAL CASE.  "FREEDOM OF DEBATE
MIGHT BE STIFLED AND INDEPENDENCE OF THOUGHT CHECKED IF JURORS WERE
MADE TO FEEL THAT THEIR ARGUMENTS AND BALLOTS WERE TO BE FREELY
PUBLISHED TO THE WORLD."  ID., AT 13.  NONETHELESS, THE COURT ALSO
RECOGNIZED THAT ISOLATED INROADS ON CONFIDENTIALITY DESIGNED TO SERVE
THE PARAMOUNT NEED OF THE CRIMINAL LAW WOULD NOT VITIATE THE INTERESTS
SERVED BY SECRECY: 

"A JUROR OF INTEGRITY AND REASONABLE FIRMNESS WILL NOT FEAR TO SPEAK
HIS MIND IF THE CONFIDENCES OF DEBATE ARE BARRED TO THE EARS OF MERE
IMPERTINENCE OR MALICE.  HE WILL NOT EXPECT TO BE SHIELDED AGAINST THE
DISCLOSURE OF HIS CONDUCT IN THE EVENT THAT THERE IS EVIDENCE
REFLECTING UPON HIS HONOR.  THE CHANCE THAT NOW AND THEN THERE MAY BE
FOUND SOME TIMID SOUL WHO WILL TAKE COUNSEL OF HIS FEARS AND GIVE WAY
TO THEIR REPRESSIVE POWER IS TOO REMOTE AND SHADOWY TO SHAPE THE COURSE
OF JUSTICE."  ID., AT 16. 

/21/  WHEN THE SUBPOENAED MATERIAL IS DELIVERED TO THE DISTRICT
JUDGE IN CAMERA QUESTIONS MAY ARISE AS TO THE EXCISING OF PARTS AND IT
LIES WITHIN THE DISCRETION OF THAT COURT TO SEEK THE AID OF THE SPECIAL
PROSECUTOR AND THE PRESIDENT'S COUNSEL FOR IN CAMERA CONSIDERATION OF
THE VALIDITY OF PARTICULAR EXCISIONS, WHETHER THE BASIS OF EXCISION IS
RELEVANCY OR ADMISSIBILITY OR UNDER SUCH CASES AS UNITED STATES V.
REYNOLDS, 345 U.S. 1 (1953), OR C. & S. AIR LINES V. WATERMAN S.S.
CORP., 333 U.S. 103 (1948). 

MR. JUSTICE REHNQUIST TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

LEON JAWORSKI AND PHILIP A. LACOVARA ARGUED THE CAUSE AND FILED
BRIEFS FOR THE UNITED STATES IN BOTH CASES. 

JAMES D. ST. CLAIR ARGUED THE CAUSE FOR THE PRESIDENT IN BOTH
CASES.  WITH HIM ON THE BRIEFS WERE CHARLES ALAN WRIGHT, LEONARD
GARMENT, MICHAEL A. STERLACCI, JEROME J. MURPHY, LOREN A. SMITH, JAMES
R. PROCHNOW, THEODORE GARRISH, JAMES J. TANSEY, AND LARRY G.
GUTTERRIDGE.  WILLIAM SNOW FRATES, ANDREW C. HALL, SPENCER H. BOYER,
AND HENRY H. JONES FILED A BRIEF FOR RESPONDENT EHRLICHMAN IN NO. 73 -
1766.  JOHN M. BRAY FILED A BRIEF FOR RESPONDENT STRACHAN IN NO. 73 -
1766.  NORMAN DORSEN AND MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING AFFIRMANCE OF THE
DISTRICT COURT JUDGMENT. 
..END :























SECRETARY OF THE NAVY V. AVRECH, 418 U.S. 676 


       SECRETARY OF THE NAVY V. AVRECH

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

        NO. 72 - 1713.  ARGUED FEBRUARY 20, 1974--DECIDED JULY 8,

           1974; 155 U.S. APP. D.C. 352, 477 F.2D 1237, REVERSED. 


    THIS COURT WILL NOT DECIDE WHETHER THE DISTRICT COURT HAD

  JURISDICTION OF AN ACTION CHALLENGING A COURT-MARTIAL CONVICTION

  UNDER ART. 80 OF THE UNIFORM CODE OF MILITARY JUSTICE OF AN

  ATTEMPT TO COMMIT AN OFFENSE UNDER ART. 134, ON THE GROUND, INTER

  ALIA, THAT ART. 134 IS UNCONSTITUTIONALLY VAGUE, SINCE ASSUMING,

  ARGUENDO, THAT THE DISTRICT COURT DID HAVE JURISDICTION, THE

  DECISION IN PARKER V. LEVY, 417 U.S. 733, REQUIRES REVERSAL OF

  THE COURT OF APPEALS' DECISION ON THE MERITS REVERSING THE

  DISTRICT COURT'S DENIAL OF RELIEF AND HOLDING THAT ART. 134 IS

UNCONSTITUTIONALLY VAGUE. 

PER CURIAM. 

APPELLEE MARK AVRECH WAS CONVICTED BY A SPECIAL COURT-MARTIAL ON
CHARGES OF HAVING VIOLATED ART. 80 OF THE UNIFORM CODE OF MILITARY
JUSTICE, 10 U.S.C. 880.  THE SPECIFICATION UNDER ART. 80, WHICH
PUNISHES ATTEMPTS TO COMMIT OFFENSES OTHERWISE PUNISHABLE UNDER THE
U.C.M.J., CHARGED AN ATTEMPT TO COMMIT AN OFFENSE UNDER THE FIRST AND
SECOND CLAUSES OF ART. 134, 10 U.S.C. 934, NAMELY, AN ATTEMPT TO
PUBLISH A STATEMENT DISLOYAL TO THE UNITED STATES TO MEMBERS OF THE
ARMED FORCES "WITH DESIGN TO PROMOTE DISLOYALTY AND DISAFFECTION AMONG
THE TROOPS." 

UPON CONVICTION, APPELLEE WAS SENTENCED TO REDUCTION IN RANK TO THE
LOWEST ENLISTED GRADE, FORFEITURE OF THREE MONTHS' PAY, AND CONFINEMENT
AT HARD LABOR FOR ONE MONTH.  THE COMMANDING OFFICER SUSPENDED THE
CONFINEMENT, BUT THE REMAINDER OF THE SENTENCE WAS SUSTAINED BY THE
STAFF JUDGE ADVOCATE AND THE JUDGE ADVOCATE GENERAL OF THE NAVY. 
APPELLEE WAS SUBSEQUENTLY GIVEN A BAD-CONDUCT DISCHARGE AFTER AN
UNRELATED SECOND COURT-MARTIAL CONVICTION. 

IN DECEMBER 1970, APPELLEE BROUGHT THIS ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, ASSERTING JURISDICTION
UNDER 5 U.S.C. 701 - 706, 28 U.S.C. 1331, AND 28 U.S.C. 1361.  HE
CLAIMED THAT ART. 134 WAS UNCONSTITUTIONALLY VAGUE AND OVERBROAD ON ITS
FACE AND AS APPLIED, THAT HIS STATEMENT WAS PROTECTED SPEECH, AND THAT
HE WAS CONVICTED WITHOUT SUFFICIENT EVIDENCE OF CRIMINAL INTENT.  HE
SOUGHT AN ORDER DECLARING HIS ART. 80 CONVICTION INVALID AND REQUIRING
THE SECRETARY OF THE NAVY TO EXPUNGE ANY RECORD OF HIS CONVICTION AND
TO RESTORE ALL PAY AND BENEFITS LOST BECAUSE OF THE CONVICTION.  AFTER
THE DISTRICT COURT DENIED RELIEF, THE COURT OF APPEALS REVERSED,
HOLDING THAT ART. 134 IS UNCONSTITUTIONALLY VAGUE.  155 U.S. APP. D.C.
352, 477 F.2D 1237 (1973).  WE NOTED PROBABLE JURISDICTION.  816
(1973).  FOLLOWING ORAL ARGUMENT ON THE MERITS, WE DIRECTED COUNSEL TO
FILE SUPPLEMENTAL BRIEFS ON THE ISSUES OF THE JURISDICTION OF THE
DISTRICT COURT AND THE EXHAUSTION OF REMEDIES. 

WITHOUT THE BENEFIT OF FURTHER ORAL ARGUMENT, WE ARE UNWILLING TO
DECIDE THE DIFFICULT JURISDICTIONAL ISSUE WHICH THE PARTIES HAVE
BRIEFED.  ASSUMING, ARGUENDO, THAT THE DISTRICT COURT HAD JURISDICTION
UNDER THE CIRCUMSTANCES OF THIS CASE TO REVIEW THE DECISION OF THE
COURT-MARTIAL, OUR DECISION IN PARKER V. LEVY, 417 U.S. 733 (1974),
WOULD REQUIRE REVERSAL OF THE COURT OF APPEALS' DECISION ON THE MERITS
OF APPELLEE'S CONSTITUTIONAL CHALLENGE TO ART. 134.  WE BELIEVE THAT
EVEN THE MOST DILIGENT AND ZEALOUS ADVOCATE COULD FIND HIS ARDOR
SOMEWHAT DAMPENED IN ARGUING A JURISDICTIONAL ISSUE WHERE THE DECISION
ON THE MERITS IS THUS FOREORDAINED.  WE ACCORDINGLY LEAVE TO A FUTURE
CASE THE RESOLUTION OF THE JURISDICTIONAL ISSUE, AND REVERSE THE
JUDGMENT OF THE COURT OF APPEALS ON THE AUTHORITY OF PARKER V. LEVY,
SUPRA.  SEE UNITED STATES V. AUGENBLICK, 393 U.S. 348 (1969);
SCHNECKLOTH V. BUSTAMONTE, 412 U.S. 218, 249 (1973). 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT. 

I INDICATED MY VIEW IN PARKER V. LEVY, 417 U.S. 733, 773, THAT ART.
134 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 934, IS
UNCONSTITUTIONALLY VAGUE.  HOWEVER, MY VIEW DID NOT PREVAIL IN PARKER,
WHERE THE COURT UPHELD THE GENERAL ARTICLES AGAINST CONSTITUTIONAL
ATTACK.  GIVEN THAT RESULT WHICH CONTROLS THE MERITS OF THE APPELLEE'S
SUBSTANTIVE CLAIMS HERE, I AGREE THAT IT WOULD BE INAPPROPRIATE TO
REQUIRE FURTHER ARGUMENT OF THE JURISDICTIONAL ISSUES IN THIS CASE. 
CONSEQUENTLY, I AM CONTENT TO LEAVE THOSE ISSUES FOR ANOTHER DAY, AND
CONCUR IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

APPELLEE WAS CONVICTED OF AN ATTEMPT TO PUBLISH A STATEMENT DISLOYAL
TO THE UNITED STATES TO MEMBERS OF THE ARMED FORCES "WITH DESIGN TO
PROMOTE DISLOYALTY AND DISAFFECTION AMONG THE TROOPS."  ARTICLE 80 OF
THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 880, COVERS THE ATTEMPT
AND ART. 134, 10 U.S.C. 934, COVERS THE SUBSTANTIVE OFFENSE. 

APPELLEE WAS ON ACTIVE DUTY IN VIETNAM IN A COMBAT ZONE AND LIKE
MOST SOLDIERS ON NIGHT DUTY HAD A LOT OF TIME ON HIS HANDS.  HE TYPED
THE FOLLOWING STATEMENT: 

     "IT SEEMS TO ME THAT THE SOUTH VIETNAMESE PEOPLE COULD DO A

  LITTLE FOR THE DEFENSE OF THEIR COUNTRY.  WHY SHOULD WE GO OUT

  AND FIGHT THEIR BATTLES WHILE THEY SIT HOME AND COMPLAIN ABOUT

  COMMUNIST AGGRESSION.  WHAT ARE WE, CANNON FODDER OR HUMAN

  BEINGS?  .  . . THE UNITED STATES HAS NO BUSINESS OVER HERE. 
THIS

  IS A CONFLICT BETWEEN TWO DIFFERENT POLITICALLY MINDED GROUPS. 

  NOT A DIRECT ATTACK ON THE UNITED STATES.  . . . WE HAVE PEACE

  TALKS WITH NORTH VIETNAM AND THE V. C. THAT'S JUST FINE AND DANDY

  EXCEPT HOW MANY MEN DIED IN VIETNAM THE WEEK THEY ARGUED OVER THE

  SHAPE OF THE TABLE?  . . . DO WE DARE EXPRESS OUR FEELINGS AND

  OPINIONS WITH THE THREAT OF COURT-MARTIAL PERPETUALLY HANGING

  OVER OUR HEADS?  ARE YOUR OPINIONS WORTH RISKING A

  COURT-MARTIAL?  WE MUST STRIVE FOR PEACE AND IF NOT PEACE THEN A

  COMPLETE U. S. WITHDRAWAL.  WE'VE BEEN SITTING DUCKS FOR TOO

  LONG.  . 

HIS PLAN WAS TO HAVE THE MIMEOGRAPH OPERATOR MAKE COPIES WHICH HE
COULD DISTRIBUTE.  BUT THE OPERATOR INSTEAD TURNED IT OVER TO A
SUPERIOR OFFICER AND A COURT-MARTIAL FOLLOWED.  APPELLEE, A PRIVATE
FIRST CLASS, WAS REDUCED TO THE LOWEST ENLISTED GRADE, DEPRIVED OF
THREE MONTHS' PAY, AND CONFINED FOR ONE MONTH TO HARD LABOR.  THE
COMMANDING OFFICER SUSPENDED THE CONFINEMENT AND THE REMAINDER OF THE
SENTENCE WAS SUSTAINED ON REVIEW.  THIS SUIT, ASSERTING FEDERAL RIGHTS,
WAS BROUGHT ON THE GROUND, AMONG OTHER THINGS, THAT HE WAS PUNISHED FOR
PROTECTED SPEECH.  I THINK THAT CLAIM HAS MERIT; AND I WOULD AFFIRM THE
COURT OF APPEALS. 

SOLDIERS, LOUNGING AROUND, SPEAK CAREFULLY OF OFFICERS WHO ARE
WITHIN EARSHOT.  BUT IN WORLD WAR I WE WERE FREE TO LAMBAST GENERAL
"BLACK JACK"  PERSHING WHO WAS DISTANT, REMOTE, AND MYTHICAL.  WE ALSO
GROUSED ABOUT THE BANKERS'  WAR, THE MUNITIONS MAKERS' WAR IN WHICH WE
HAD VOLUNTEERED.  WHAT WE SAID WOULD HAVE OFFENDED OUR MILITARY
SUPERIORS.  BUT SINCE WE COULD WRITE OUR CONGRESSMAN OR SENATORS ABOUT
IT, WE SAW NO REASON WHY WE COULD NOT TALK IT OUT AMONG OURSELVES. 

TALK IS OF COURSE INCITEMENT; BUT NOT ALL INCITEMENT LEADS TO
ACTION.  WHAT APPELLEE IN THIS CASE WROTE OUT WITH THE PURPOSE OF
SHOWING TO THE MARINES IN HIS UNIT, MIGHT, IF RELEASED, HAVE CREATED
ONLY REVULSION.  OR IT MIGHT HAVE PRODUCED A STRONG REACTION. 
CONCEIVABLY MORE MIGHT HAVE SHARED HIS VIEWS.  BUT HE WAS NOT SETTING
UP A RENDEZVOUS FOR ALL WHO WANTED TO GO AWOL OR LAYING A DARK PLOT
AGAINST HIS SUPERIOR OFFICERS.  HE WAS ATTEMPTING TO SPEAK WITH HIS
COMRADES IN ARMS ABOUT THE OPPRESSIVE NATURE OF THE WAR THEY WERE
FIGHTING.  HIS ATTEMPT, IF SUCCESSFUL, MIGHT AT BEST HAVE RESULTED IN
LETTERS TO HIS FAMILY OR CONGRESSMAN OR SENATORS WHO MIGHT HAVE READ
WHAT HE SAID TO LOCAL PEOPLE OR HAVE PUBLISHED THE LETTERS IN
NEWSPAPERS OR MADE THEM THE SUBJECT OF DEBATE IN LEGISLATIVE HALLS. 

SECRECY AND SUPPRESSION OF VIEWS WHICH THE COURT TODAY SANCTIONS
INCREASES RATHER THAN REPELS THE DANGERS OF THE WORLD IN WHICH WE
LIVE.  I THINK FULL DEDICATION TO THE SPIRIT OF THE FIRST AMENDMENT IS
THE REAL SOLVENT OF THE DANGERS AND TENSIONS OF THE DAY.  THAT
PHILOSOPHY MAY BE HOSTILE TO MANY MILITARY MINDS.  BUT IT IS TIME THE
NATION MADE CLEAR THAT THE MILITARY IS NOT A SYSTEM APART BUT LIVES
UNDER A CONSTITUTION THAT ALLOWS DISCUSSION OF THE GREAT ISSUES OF THE
DAY, NOT MERELY THE TRIVIAL ONES--SUBJECT TO LIMITATIONS AS TO TIME,
PLACE, OR OCCASION BUT NEVER TO CONTROL. 

THE STEPS WE TAKE IN PARKER V. LEVY, 417 U.S. 733, AND IN THIS CASE
ARE BACKWARD STEPS MEASURED BY THE STANDARDS OF AN OPEN SOCIETY.  /1/ 

/1/  J. ROBERT OPPENHEIMER, CRUELLY CAST INTO THE OUTER DARKNESS BY
THE ATOMIC ENERGY COMMISSION IN ITS NOTORIOUS "WITCH HUNT," SAID ON
EDWARD R. MURROW'S TV SHOW "SEE IT NOW" IN JANUARY 1955: 

"THE TROUBLE WITH SECRECY IS THAT IT DENIES TO THE GOVERNMENT ITSELF
THE WISDOM AND THE RESOURCES OF THE WHOLE COMMUNITY, OF THE WHOLE
COUNTRY, AND THE ONLY WAY YOU CAN DO THIS IS TO LET ALMOST ANYONE SAY
WHAT HE THINKS--TO TRY TO GIVE THE BEST SYNOPSES, THE BEST
POPULARIZATIONS, THE BEST MEDIATIONS OF TECHNICAL THINGS THAT YOU CAN,
AND TO LET MEN DENY WHAT THEY THINK IS FALSE--ARGUE WHAT THEY THINK IS
FALSE, YOU HAVE TO HAVE A FREE AND UNCORRUPTED COMMUNICATION. 

"AND THIS IS--THIS IS SO THE HEART OF LIVING IN A COMPLICATED
TECHNOLOGICAL WORLD--IT IS SO THE HEART OF FREEDOM THAT THAT IS WHY WE
'COULDN'T YOU SAY MORE ABOUT THAT?'  'ARE WE REALLY ACTING IN A WISE
WAY?'  NOT BECAUSE WE ENJOY CHATTERING--NOT BECAUSE WE ARE NOT AWARE OF
THE DANGERS OF THE WORLD WE LIVE IN, BUT BECAUSE THESE DANGERS CANNOT
BE MET IN ANY OTHER WAY. 

"THE FACT IS, OUR GOVERNMENT CANNOT DO WITHOUT US--ALL OF US."  C.
CURTIS, THE OPPENHEIMER CASE, THE TRIAL OF A SECURITY SYSTEM 181
(1955). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,

  DISSENTING. 

THE COURT'S DECISION IN PARKER V. LEVY, 417 U.S. 733 (1974),
ESTABLISHES THAT THE COURT OF APPEALS ERRED IN OVERTURNING APPELLEE'S
COURT-MARTIAL CONVICTION ON THE BASIS OF THE UNCONSTITUTIONAL VAGUENESS
OF ART. 134.  IN THESE CIRCUMSTANCES, I AGREE THAT THIS CASE DOES NOT
PRESENT AN APPROPRIATE VEHICLE FOR THIS COURT'S CONSIDERATION OF THE
SUBSTANTIAL JURISDICTIONAL ISSUES PRESENTED.  APPELLEE ALSO CLAIMED,
HOWEVER, THAT ARTS. 80 AND 134, AS APPLIED TO HIS CASE, INFRINGED HIS
FIRST AMENDMENT RIGHTS, CLAIMS REJECTED BY THE DISTRICT COURT BUT NEVER
PASSED UPON BY THE COURT OF APPEALS BECAUSE OF THAT COURT'S HOLDING AS
TO THE VAGUENESS OF ART. 134.  SEE 155 U.S.APP.D.C. 352, 354, 477 F.2D
1237, 1239 (1973).  I THINK IT INAPPROPRIATE FOR THIS COURT TO PASS ON
THESE CLAIMS WITHOUT THE BENEFIT OF THE COURT OF APPEALS' CONSIDERATION
IN THE FIRST INSTANCE.  I WOULD THEREFORE VACATE THE JUDGMENT OF THE
COURT OF APPEALS AND REMAND FOR RECONSIDERATION OF THE JURISDICTIONAL
QUESTIONS AND THE MERITS IN LIGHT OF PARKER V. LEVY. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON
THE BRIEF WERE ASSISTANT ATTORNEY GENERAL PETERSEN, DEPUTY SOLICITOR
GENERAL FRIEDMAN, ALLAN A. TUTTLE, AND JEROME M. FEIT. 

DORIAN BOWMAN ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WAS DAVID REIN. 

MARVIN M. KARPATKIN AND THOMAS M. COMERFORD FILED A BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :













DORSZYNSKI V. UNITED STATES, 418 U.S. 424 


       DORSZYNSKI V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

        NO. 73 - 5284.  ARGUED MARCH 20, 1974--DECIDED JUNE 26,

           1974; 484 F.2D 849, REVERSED AND REMANDED. 


    IN SENTENCING A YOUTH OFFENDER AS AN ADULT UNDER OTHER

  APPLICABLE PENAL STATUTES,5010 (D) OF THE FEDERAL YOUTH

  CORRECTIONS ACT REQUIRES A FEDERAL DISTRICT COURT TO "FIND" THAT

  THE OFFENDER WOULD NOT BENEFIT FROM TREATMENT UNDER THE ACT, BUT

  DOES NOT REQUIRE THAT SUCH "FINDING" BE ACCOMPANIED BY SUPPORTING

  REASONS.  PP.  431 - 444. 

     (A) SECTION 5010 (D)'S REQUIREMENT OF A "NO BENEFIT" FINDING
IS

  NOT TO BE READ AS A SUBSTANTIVE STANDARD THAT MUST BE SATISFIED

  TO SUPPORT A SENTENCE OUTSIDE THE ACT, FOR SUCH A READING WOULD

  NOT COMPORT WITH THE INTENT OF THE ACT, AS MANIFESTED BY ITS

  LEGISLATIVE HISTORY, TO INCREASE FEDERAL TRIAL JUDGES'

  SENTENCING OPTIONS, OR WITH THE TRADITIONAL DOCTRINE THAT THE

  SENTENCING FUNCTION IS EXCLUSIVELY VESTED IN THE TRIAL COURT AND

  IS NOT REVIEWABLE IF WITHIN THE TERMS OF THE STATUTE.  IT

  THEREFORE FOLLOWS THAT REQUIRING A STATEMENT OF SUPPORTING

  REASONS TO ACCOMPANY A "NO BENEFIT" FINDING WOULD LIMIT THE TRIAL

  COURT'S SENTENCING DISCRETION SINCE IT WOULD ONLY SERVE TO

  FACILITATE APPELLANTE REVIEW OF SENTENCING, CONTRARY TO THE

  INTENT OF THE ACT.  PP. 436 - 442. 

     (B) SECTION 5010 (D)'S "NO BENEFIT" FINDING REQUIREMENT WAS

DESIGNED TO INSURE THAT THE SENTENCING JUDGE DELIBERATELY

EXERCISED DISCRETION IN CHOOSING NOT TO COMMIT A YOUTH OFFENDER

  TO TREATMENT UNDER THE ACT, SUCH A FINDING MAKING IT CLEAR THAT

  THE JUDGE WAS NOT ONLY AWARE OF THE ACT'S EXISTENCE BY ALSO OF

  THE YOUTH OFFENDER'S ELIGIBILITY FOR TREATMENT THEREUNDER.  ONCE

  IT IS MADE CLEAR THAT THE JUDGE HAS CONSIDERED THE OPTION OF THE

  ACT'S TREATMENT AND REJECTED IT, NO APPELLATE REVIEW IS

  WARRANTED.  PP. 442 - 443. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI, 414 U.S. 1091 (1973), TO RESOLVE A CONFLICT
IN THE CIRCUITS CONCERNING WHETHER, IN SENTENCING A YOUTH OFFENDER
UNDER OTHER APPLICABLE PENAL STATUTES, 5010 (D) OF THE FEDERAL YOUTH
CORRECTIONS ACT, 18 U.S.C. 5005 ET SEQ., REQUIRES A FEDERAL DISTRICT
COURT FIRST TO MAKE AN EXPLICIT FINDING, SUPPORTED BY REASONS ON THE
RECORD, THAT THE OFFENDER WOULD NOT BENEFIT FROM TREATMENT UNDER
SUBSECTION (B) OR (C) OF 5010 OF THAT ACT.  THE COURT OF APPEALS HELD
THAT SUCH A FINDNG MAY BE IMPLIED FROM THE RECORD, 484 F.2D 849 (CA7
1973).  THREE CIRCUITS HAVE TAKEN THAT POSITION, /1/  AND THREE
CIRCUITS HAVE REQUIRED AN EXPLICIT FINDING ACCOMPANIED BY SUPPORTING
REASONS.  /2/  WE CONCLUDE THAT WHILE AN EXPRESS FINDING OF NO BENEFIT
MUST BE MADE ON THE RECORD, THE ACT DOES NOT REQUIRE THAT IT BE
ACCOMPANIED BY SUPPORTING REASONS.  THE JUDGMENT OF THE COURT OF
APPEALS IS THEREFORE REVERSED, AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS. 

        I 

ON OCTOBER 19, 1971, A SPECIAL AGENT OF THE FEDERAL BUREAU OF
NARCOTICS AND DANGEROUS DRUGS MADE ARRANGEMENTS WITH PETITIONER'S
CODEFENDANT, WHOSE CASE IS NOT BEFORE THIS COURT, TO PURCHASE
APPROXIMATELY 1,000 TABLETS OF LYSERGIC ACID DIETHYLAMIDE (LSD) THE
FOLLOWING DAY.  AT THE APPOINTED HOUR ON OCTOBER 20, 1971, THE
UNDERCOVER AGENT WAS SHOWN APPROXIMATELY 1,000 LSD TABLETS IN THE
POSSESSION OF PETITIONER'S CODEFENDANT, WHO TRANSFERRED THE TABLETS TO
THE AGENT.  THE EXHIBITION AND TRANSFER TOOK PLACE IN AN AUTOMOBILE
BEING DRIVEN BY PETITIONER.  AFTER THE TABLETS WERE TRANSFERRED TO THE
AGENT BUT BEFORE MONEY HAD CHANGED HANDS, PETITIONER AND HIS
CODEFENDANT WERE ARRESTED.  THE COMPLAINT UPON WHICH THE ARREST WARRANT
FOR PETITIONER ISSUED CHARGED HIM WITH KNOWINGLY AND INTENTIONALLY
POSSESSING APPROXIMATELY 1,000 TABLETS OF LSD, IN VIOLATION OF 18
U.S.C. 2 AND 21 U.S.C. 844 (A).  /3/  SUBSEQUENT TO PETITIONER'S
RELEASE ON HIS OWN RECOGNIZANCE, HIS COUNSEL INFORMED THE DISTRICT
COURT THAT PETITIONER INTENDED TO PLEAD GUILTY TO THE CHARGE, AND
REQUESTED THE COMPLETION OF A PRESENTENCE REPORT PRIOR TO THE PLEA, AS
AUTHORIZED BY FED. RULE CRIM. PROC. 32 (C). 

ON FEBRUARY 14, 1972, PROCEEDINGS WERE HAD IN THE DISTRICT COURT
UPON THE FILING OF AN INFORMATION, ARRAIGNMENT, PLEA, AND SENTENCE. 
THE GOVERNMENT FILED A ONE-COUNT INFORMATION CHARGING PETITIONER AND
HIS CODEFENDANT WITH A MISDEMEANOR OFFENSE UNDER 18 U.S.C. 2 AND 21
U.S.C. 844 (A).  THE GOVERNMENT INFORMED THE COURT THAT THE MAXIMUM
SENTENCE PETITIONER AND HIS CODEFENDANT, WHO WERE FIRST OFFENDERS UNDER
844 (A), COULD RECEIVE WAS ONE YEAR IN PRISON, A FINE OF $5,000, OR
BOTH; THE COURT WAS ALSO ADVISED THAT SINCE PETITIONER MIGHT HAVE BEEN
UNDER THE AGE OF 26, SEE N.9, INFRA, HE "MAY ALSO BE SUBJECT TO THE
FEDERAL YOUTH CORRECTIONS ACT".  /4/  APP. 6 PETITIONER, WHO WAS 19
YEARS OLD AT THE TIME OF THE PROCEEDING AND HAD HAD NO PRIOR CRIMINAL
RECORD, PLEADED GUILTY, AS DID HIS CODEFENDANT.  AFTER INQUIRY AS
PRESCRIBED BY FED. RULE CRIM.  PROC. 11 TO DETERMINE WHETHER THERE WAS
A BASIS IN FACT FOR PETITIONER'S GUILTY PLEA, AND WHETHER IT WAS
ENTERED VOLUNTARILY WITH UNDERSTANDING OF ITS NATURE AND CONSEQUENCES,
/5/  THE DISTRICT COURT ACCEPTED THE PLEA.  ##HC428 

SINCE PETITIONER DESIRED TO BE SENTENCED AT THIS PROCEEDING, THE
DISTRICT COURT RECESSED TO CONSIDER THE PRESENTENCE REPORT, WHICH
PETITIONER'S COUNSEL HAD ALREADY READ.  AFTER RECESS AND BEFORE
SENTENCING, PETITIONER WAS GIVEN HIS RIGHT TO ALLOCUTION, AND
PETITIONER'S COUNSEL REQUESTED THE COURT THAT PETITIONER "BE PLACED . .
. ON PROBATION UNDER THE YOUTH CORRECTIONS ACT."  APP.  13.  SEE N. 4,
SUPRA.  PETITIONER THEN RECEIVED A SPLIT SENTENCE WHICH REMITTED HIM TO
THE CUSTODY OF THE ATTORNEY GENERAL FOR ONE YEAR, TO SERVE 90 DAYS'
CONFINEMENT "IN A JAIL-TYPE OR TREATMENT" INSTITUTION, ALTHOUGH THE
JUDGMENT MENTIONS ONLY A "JAIL-TYPE" INSTITUTION; THE EXECUTION OF THE
REMAINDER OF THE SENTENCE WAS SUSPENDED AND PETITIONER WAS PLACED ON
PROBATION FOR TWO YEARS UPON RELEASE FROM CUSTODY.  18 U.S.C. 3651. 
/6/  AT NO TIME DURING THE PROCEEDING, INCLUDING SENTENCING, DID THE
DISTRICT COURT MAKE ANY REFERENCE TO THE FEDERAL YOUTH CORRECTIONS
ACT.  ##HC430 

ON MAY 1, 1972, AFTER HAVING FILED NUMEROUS OTHER POST-CONVICTION
MOTIONS FOR RELIEF, PETITIONER FILED THE MOTION AT ISSUE HERE, SEEKING
RELIEF PURSUANT TO FED.  RULES CRIM. PROC. 32 (D) AND 35, AND 28 U.S.C.
2255, ON TWO GROUNDS.  THE FIRST ALLEGED THAT HIS GUILTY PLEA WAS NOT
MADE UNDERSTANDINGLY; THAT ISSUE IS NOT BEFORE US.  SEE N. 5, SUPRA.
THE SECOND ALLEGED THAT THE DISTRICT COURT WAS WITHOUT JURISDITION TO
IMPOSE THE SENTENCE GIVEN BECAUSE THE COURT FAILED TO MAKE A FINDING
THAT PETITIONER WOULD NOT DERIVE BENEFIT FROM TREATMENT UNDER 5010 (B)
OR (C), AS ASSERTEDLY REQUIRED BY 5010 (D).  SEE N. 4, SUPRA.  THE
DISTRICT COURT HELD AN EVIDENTIARY HEARING TO CONSIDER THIS, AS WELL AS
OTHER MOTIONS, PENDING AT THAT TIME.  ALL WERE DENIED WITHOUT OPINION. 
THE DISTRICT COURT STATED AT THE POST-CONVICTION HEARING THAT THE ACT
DID NOT REQUIRE AN AFFIRMATIVE FINDING THAT PETITIONER WOULD NOT
BENEFIT FROM TREATMENT THEREUNDER BEFORE THE COURT COULD SENTENCE HIM
UNDER OTHER APPLICABLE PENALTY PROVISIONS; THE COURT CONCLUDED THAT IN
COMMITTING PETITIONER FOR ONE YEAR UNDER A SPLIT SENTENCE "THE
(DISTRICT) COURT IMPLIEDLY (HELD) THE YOUTH CORRECTIONS ACT NOT
APPLICABLE."  ##HC431 APP. 45. 

THE COURT OF APPEALS AFFIRMED, REJECTING THE VIEW THAT TRIAL JUDGES
MUST MAKE AN EXPLICIT FINDING THAT YOUTH OFFENDERS WOULD NOT BENEFIT
FROM TREATMENT UNDER THE ACT.  THE COURT OF APPEALS HELD THAT SUCH A
DETERMINATION MAY BE IMPLIED FROM THE RECORD AS A WHOLE AND THAT THE
IMPOSITION OF THE SPLIT SENTENCE UPON PETITIONER AFTER HIS COUNSEL HAD
RAISED THE POSSIBILITY OF SENTENCING UNDER THAT ACT SATISFIED 5010
(D).  484 F.2D, AT 851. 

        II

THE FEDERAL YOUTH CORRECTIONS ACT 

THE SOLE ISSUE IN THIS CASE IS THE VALIDITY OF THE SENTENCE IMPOSED
BY THE DISTRICT COURT.  PETITIONER CONTENDS THAT BEFORE ANY ADULT
SENTENCE MAY BE IMPOSED 5010 (D) REQUIRES, FIRST, THAT THE SENTENCING
JUDGE FIND EPLICITLY THAT THE CONVICTED DEFENDANT WOULD RECEIVE NO
BENEFIT FROM TREATMENT UNDER THE ACT AND, SECOND, THAT THE SENTENCING
JUDGE MUST EXPLAIN THE REASONS FOR HIS FINDING.  WE BEGIN WITH THE
GENERAL PROPOSITION THAT ONCE IT IS DETERMINED THAT A SENTENCE IS
WITHIN THE LIMITATIONS SET FORTH IN THE STATUTE UNDER WHICH IT IS
IMPOSED, APPELLATE REVIEW IS AT AN END.  /7/  GORE V. UNITED STATES,
357 U.S. 386, 393 (1958); TOWNSEND V. BURKE, 334 U.S. 736 741 (1948);
BLOCKBURGER V UNITED STATES, 284 U.S. 299, 305 (1932).  ##HC432 OUR
TASK, THEREFORE, IS TO DETERMINE WHETHER THE SENTENCE IMPOSED HERE WAS
PERMITTED UNDER 5010 (D) OF THE ACT. 

THE FEDERAL YOUTH CORRECTIONS ACT HAS BEEN ACCURATELY DESCRIBED AS
THE MOST COMPREHENSIVE FEDERAL STATUTE CONCERNED WITH SENTENCING. 
UNITED STATES V. COEFIELD, 155 U.S. APP. D.C. 205, 209, 476 F.2D 1152,
1156 (1973).  THE ACT IS IN SUBSTANTIAL PART AN OUTGROWTH OF
RECOMMENDATIONS MADE BY THE JUDICIAL CONFERENCE OF THE UNITED STATES
MORE THAN 30 YEARS AGO.  /8/  THE PRINCIPLES AND PROCEDURES CONTAINED
IN THE CONFERENCE RECOMMENDATIONS WERE IN TURN LARGELY BASED ON THOSE
DEVELOPED SINCE 1894 FOR A SYSTEM OF TREATMENT OF YOUNG OFFENDERS IN
ENGLAND, KNOWN AS THE BORSTAL SYSTEM.  SEE CRIMINAL JUSTICE ACT OF
1948, 11 & 12 GEO. 6, C. 58, AND CRIMINAL JUSTICE ACT OF 1961, 9 & 10
ELIZ.  2, C. 39.  STATISTICS AVAILABLE AT THE TIME OF THE CONFERENCE
STUDY REVEALED THE TWO PRINCIPAL MOTIVATING FACTORS BEHIND THE
ENACTMENT OF THE ACT:  FIRST PERIOD OF LIFE BETWEEN 16 AND 22 YEARS OF
AGE WAS FOUND TO BE THE TIME WHEN SPECIAL FACTORS OPERATED TO PRODUCE
HABITUAL CRIMINALS.  ##HC433 SECOND, THEN-EXISTING METHODS OF TREATING
CRIMINALLY INCLINED YOUTHS WERE FOUND INADEQUATE IN AVOIDING
RECIDIVISM.  H.R. REP. NO. 2979, 81ST CONG., 2D SESS., 2 - 3 (1950)
(HERINAFTER H.R. REP. NO. 2979).  THE ACT WAS THUS DESIGNED TO PROVIDE
A BETTER METHOD FOR TREATING YOUNG OFFENDERS CONVICTED IN FEDERAL
COURTS IN THAT VULNERABLE AGE BRACKET, TO REHABILITATE THEM AND RESTORE
NORMAL BEHAVIOR PATTERNS.  IBID. 

TO ACCOMPLISH THIS OBJECTIVE, FEDERAL DISTRICT JUDGES WERE GIVEN TWO
NEW ALTERNATIVES TO ADD TO THE ARRAY OF SENTENCING OPTIONS PREVIOUSLY
AVAILABLE TO THEM, SEE, N. 9, INFRA: FIRST, THEY WERE ENABLED TO COMMIT
AN ELIGIBLE OFFENDER TO THE CUSTODY OF THE ATTORNEY GENERAL FOR
TREATMENT UNDER THE ACT.  18 U.S.C. 5010 (B) AND (C).  SECOND, IF THEY
BELIEVED AN OFFENDER DID NOT NEED COMMITMENT, THEY WERE AUTHORIZED TO
PLACE HIM ON PROBATION UNDER THE ACT.  18 U.S.C. 5010 (A).  IF THE
SENTENCING COURT CHOSE THE FIRST ALTERNATIVE, THE YOUTH OFFENDER WOULD
BE COMMITTED TO THE PROGRAM OF TREATMENT CREATED BY THE ACT. 

THE OBJECTIVE OF THESE OPTIONS REPRESENTED A DEPARTURE FROM
TRADITIONAL SENTENCING, AND FOCUSED PRIMARILY ON CORRECTION AND
REHABILITATION.  ALL PERSONS UNDER 22 YEARS OF AGE AT THE TIME OF
CONVICTION WERE MADE ELIGIBLE FOR PROBATION OR TREATMENT UNDER THE ACT,
/9/  THE LATTER DEFINED AS "CORRECTIVE AND PREVENTIVE GUIDANCE AND
TRAINING DESIGNED TO PROTECT THE PUBLIC BY CORRECTING (THEIR)
ANTISOCIAL TENDENCIES."  ##HC434 18 U.S.C. 5006 (E) AND (G).  TO
IMPLEMENT THE PROGRAM OF TREATMENT FOR YOUTH OFFENDERS COMMITTED UNDER
THE ACT, A YOUTH CORRECTION DIVISION WAS CREATED UNDER THE BOARD OF
PAROLE WHICH, IN CONJUNCTION WITH THE BUREAU OF PRISONS AND THE
PROBATION SERVICE, OPERATES TO PROVIDE THE UNIQUE FEATURES OF THE ACT'S
PROGRAM.  18 U.S.C. 5005. 

AN IMPORTANT ELEMENT OF THE PROGRAM WAS THAT ONCE A PERSON WAS
COMMITTED FOR TREATMENT UNDER THE ACT, THE EXECUTION OF SENTENCE WAS TO
FIT THE PERSON, NOT THE CRIME FOR WHICH HE WAS CONVICTED. 
CLASSIFICATION AGENCIES WERE TO BE ESTABLISHED BY THE DIRECTOR OF THE
BUREAU OF PRISONS TO RECEIVE AND STUDY THE PERSON COMMITTED AND MAKE
RECOMMENDATIONS TO THE DIRECTOR AS TO APPROPRIATE TREATMENT.  18 U.S.C.
5014, 5015.  FURTHER, THE RANGE OF TREATMENT AVAILABLE WAS MADE BROAD
TO PROVIDE MAXIMUM FLEXIBILITY.  THE DIRECTOR WAS AUTHORIZED BOTH TO
ADAPT NUMEROUS PUBLIC FACILITIES, AND TO CONTRACT WITH PUBLIC OR
PRIVATE AGENCIES, IN ORDER TO PROVIDE INSTITUTIONAL TREATMENT WHICH THE
DIRECTOR COULD VARY ACCORDING TO THE COMMITTED PERSON'S PROGRESS OR
LACK OF IT.  18 U.S.C. 5011, 5015.  AN INTEGRAL PART OF THE TREATMENT
PROGRAM WAS THE SEGREGATION OF THE COMMITTED PERSONS, INSOFAR AS
PRACTICABLE, SO AS TO PLACE THEM WITH THOSE SIMILARLY COMMITTED, TO
AVOID THE INFLUENCE OF ASSOCIATION WITH THE MORE HARDENED INMATES
SERVING TRADITIONAL CRIMINAL SENTENCES.  18 U.S.C. 5011. 

IN ADDITION TO INSTITUTIONAL TREATMENT, THE DIVISION WAS EMPOWERED
TO ORDER CONDITIONAL RELEASE UNDER SUPERVISION AT ANY TIME OF THOSE
COMMITTED UNDER THE ACT, WITH FEDERAL PROBATION OFFICERS PROVIDING THE
SUPERVISION.  /10/  ##HC435 18 U.S.C. 5007, 5017, 5019.  CONDITIONAL
RELEASE WAS MANDATORY AFTER A PERIOD OF TIME BY THE STATUTORY FORMULA. 
18 U.S.C. 5017.  SEE N. 4, SUPRA.  THE DIVISION WAS FURTHER AUTHORIZED
TO ORDER THE UNCONDITIONAL DISCHARGE OF COMMITTED PERSONS AFTER A FIXED
PERIOD OF TREATMENT, AND WAS REQUIRED UNCONDITIONALLY TO DISCHARGE THEM
WITHIN A PERIOD ALSO FIXED BY STATUTORY FORMULA.  IBID.  A POWERFUL
TOOL AVAILABLE TO THE DIVISION WAS ITS DISCRETION TO DISCHARGE
COMMITTED PERSONS UNCONSITIONALLY BEFORE IT WAS REQUIRED TO DO SO, FOR
UPON SUCH DISCHARGE THE CONVICTION UPON WHICH THE SENTENCE RESTED WOULD
BE AUTOMATICALLY SET ASIDE.  18 U.S.C. 5021 (A).  SEE N. 5, SUPRA.
SIMILARLY, IF THE SENTENCING JUDGE CHOSE THE SECOND ALTERNATIVE CREATED
BY THE ACT, I.E., PLACEMENT OF THE YOUTH OFFENDER ON PROBATION UNDER
ITS PROVISIONS, THE JUDGE HIMSELF COULD EXERCISE HIS DISCRETION TO
DISCHARGE THE OFFENDER FROM PROBATION UNCONDITIONALLY.  18 U.S.C. 5021
(B).  SEE N. 6 , SUPRA.  THIS, TO WOULD RESULT IN THE AUTOMATIC SETTING
ASIDE OF THE OFFENDERS CONVICTION.  18 U.S.C. 5021 (B). 

THE FOREGOING DESCRIBES THE NEW OPTIONS OF TREATMENT AND PROBATION
MADE AVAILABLE TO THE FEDERAL SENTENCING COURT UNDER THE ACT.  /11/
OUR CONCERN IS NOT WITH THE OPERATION OF THESE ALTERNATIVES, BUT WITH
THE DECISION OF THE COURT TO EMPLOY THEM, FOR THE ACT ALSO PROSERVED
THE POWER OF TRIAL JUDGES TO SENTENCE YOUTH OFFENDERS UNDER "ANY OTHER
APPLICABLE PENALTY PROVISION."  IT IS TO THE QUESTION OF WHEN A JUDGE
MAY SENTENCE A YOUTH OFFENDER OUTSIDE THE ACT THAT WE NOW TURN. 

        III

        SENTENCING DISCRETION UNDER THE ACT

        (A) 

THE LANGUAGE AFFECTING THE SENTENCING ROLE OF THE JUDGE UNDER THE
ACT IS FOUND IN 5010 (D), WHICH TELLS US: 

     "IF THE COURT SHALL FIND THAT THE YOUTH OFFENDER WILL NOT

  DERIVE BENEFIT FROM TREATMENT UNDER SUBSECTION (B) OR (C), THEN

  THE COURT MAY SENTENCE THE YOUTH OFFENDER UNDER ANY OTHER

  APPLICABLE PENALTY PROVISION." 

OUR CONCERN IS WITH THE EFFECT OF THE REQUIREMENT OF A "NO BENEFIT"
FINDING ON THE JUDGE'S SENTENCING DISCRETION.     THE LEGISLATIVE
HISTORY CLEARLY INDICATES THAT THE ACT WAS MEANT TO ENLARGE, NOT
RESTRICT, THE SENTENCING OPTIONS OF FEDERAL TRIAL COURTS IN ORDER TO
PERMIT THEM TO SENTENCE YOUTH OFFENDERS FOR REHABILITATION OF A SPECIAL
SORT. 

     "THE PROPOSED LEGISLATION IS DESIGNED TO MAKE AVAILABLE FOR
THE

  DISCRETIONARY USE OF THE FEDERAL JUDGES A SYSTEM FOR THE

  SENTENCING AND TREATMENT OF (YOUTH OFFENDERS) THAT WILL PROMOTE

  THE REHABILITATION OF THOSE WHO IN THE OPINION OF THE SENTENCING

  JUDGE SHOW PROMISE OF BECOMING USEFUL CITIZENS . . ."  H.R. REP.

  NO 2979, P. 1. 

     "THE PURPOSE OF THE PROPOSED LEGISLATION IS TO PROVIDE A NEW

  ALTERNATIVE SENTENCING AND TREATMENT PORCEDURE FOR (YOUTH

  OFFENDERS)."  S. REP. NO. 1180, 81ST CONG., 1ST SESS., 1 (1949)

(HEREINAFTER S. REP. NO. 1180). 

THUS, APART FROM THE DISCRETION VESTED IN ADMINISTRATIVE AGENCIES FOR
TREATMENT OF THOSE COMMITTED UNDER THE ACT, AS DESCRIBED IN PART II,
THE ACT WAS INTENDED TO BROADEN THE SCOPE OF JUDICIAL SENTENCING
DISCRETION TO INCLUDE THE ALTERNATIVES OF TREATMENT OR PROBATION
THEREUNDER. 

THE ACT WAS A PRODUCT OF STUDIES MADE BY A COMMITTEE OF FEDERAL
JUDGES UNDER THE AUSPICES OF THE JUDICIAL CONFERENCE OF THE UNITED
STATES.  THE VIEWS OF THE SPONSORS OF THE EFFECT OF THE ACT ON THE
SENTENCING DISCRETION OF THE TRIAL COURTS ARE THUS OF PARTICULAR
IMPORTANCE, AND THEY UNIFORMLY SUPPORT THE VIEW THAT THE ACT WAS
INTENDED TO PROSERVE THE UNFETTERED SENTENCING DISCRETION OF FEDERAL
DISTRICT JUDGES.  MOST PERTINENT IS THE STATEMENT MADE BY THE CHAIRMAN
OF THE JUDICIAL CONFERENCE SPECIAL COMMITTEE APPOINTED TO STUDY
PUNISHMENT FOR CRIME, SEE N. 8, SUPRA, CHIEF JUDGE JOHN J. PARKER, WHO
TESTIFIED BEFORE THE SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE,
WHICH CONDUCTED THE ONLY HEARINGS HELD ON THE BILL (S. 2609) ENACTED AS
THE FEDERAL YOUTH CORRECTIONS ACT.  JUDGE PARKER STATED: 

"(THE ACT . . . DOES NOT INTERFERE WITH THE POWER OF THE JUDGE (WITH
RESPECT TO SENTENCING YOUTH OFFENDERS) BUT GIVES HIM MERELY AN
ALTERNATIVE METHOD OF TREATMENT OF THOSE PEOPLE.  . . HE MAY GIVE THE
YOUTHFUL OFFENDER THE PUNISHMENT PRESCRIBED BY EXISTING STATUTES, THERE
IS NOTHING IN THE BILL THAT PREVENTS THAT.  ALL THAT THE BILL DOES IS
TO PROVIDE THAT IF IN HIS JUDGMENT AND DISCRETION, HE THINKS THAT THE
OFFENDER BEFORE THE COURT IS ONE THAT CAN BE TREATED WITH ADVANTAGE
UNDER THIS BILL, HE CAN SENTENCE HIM UNDER THIS BILL INSTEAD OF UNDER
THE EXISTING LAW.  *            *         *         *         * 

     ". . . I DO NOT SEE ANY POSSIBLE OBJECTION (TO THE ACT).  THEY

  SAY THAT THERE ARE SOME OF THESE FELLOWS THAT OUGHT TO BE GIVEN

  SERIOUS PUNISHMENT NOTWITHSTANDING THEIR BEING YOUNG AND IT (THE

  ACT) DOES NOT PREVENT THEIR BEING GIVEN SERIOUS PUNISHMENT. 

  NOTHING PREVENTS A MAN FROM GETTING 25 YEARS PUNISHMENT IF HE

  DESERVES SUCH SENTENCE."  HEARINGS ON S. 1114 AND S. 2609 BEFORE

  A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY, 81ST

  CONG., 1ST SESS., 43 - 44 (1949) (HERINAFTER HEARINGS). 

TO THE SAME EFFECT IS THE STATEMENT MADE BY CIRCUIT JUDGE ORIE L.
PHILLIPS, THE CHARIMAN OF THE CONFERENCE SUBCOMMITTEE WHICH GAVE
PARTICULAR ATTENTION TO THE TREATMENT OF YOUTH OFFENDERS.  SEE N. 8,
SUPRA.  IN RESPONSE TO THE STATEMENT OF SENATOR KILGORE, SPONSOR OF S.
2609, THAT THE BILL "TAKES NOTHING" (IN TERMS OF SENTENCING) "AWAY FROM
THE COURT," JUDGE PHILLIPS REPLIED:  "THAT IS CORRECT; IT IS PURELY
OPTIONAL."  ID., AT 69.  EARLIER JUDGE PHILLIPS HAD SAID OF THE BILL:
"THAT IS MERELY A FLEXIBILITY AND IT IS NOT A COMMAND THAT HE SEND THE
BOYS UP," TO WHICH SENATOR KILGORE REPLIED:  "I AGREE WITH YOU ON THAT
. . ."  ID., AT 67.  TO THE EXTENT OTHER TESTIMONY AND THE DEBATES
ADDRESSED TO QUESTION OF SENTENCING DISCRETION UNDER THE ACT, THEY
INVARIABLY REFLECTED THE SAME VIEW,  /12/  AS DID THE HOUSE REPORT,
QUOTED ABOVE, AND THE DEPARTMENT OF JUSTICE, WHICH RECOMMENDED
ENACTMENT OF S. 2609 AND NOTED THAT THE BILL "WOULD NOT DEPRIVE THE
COURT OF ANY OF ITS PRESENT FUNCTIONS AS TO SENTENCING."  S. REP. NO.
1180, PP. 10 - 11.  THE SENATE REPORT'S LANGUAGE WAS IDENTICAL TO THAT
OF THE DEPARTMENT OF JUSTICE.  /13/  ID., AT 1.  THE LEGISLATIVE
HISTORY OF THE ACT CONFIRMS THE CONCLUSION THAT CONGRESS DID NOT INTEND
TO ALTER OR CIRCUMSCRIBE THE SENTENCING DISCRETION OF FEDERAL DISTRICT
JUDGES BY REQUIRING ANY SUBSTANTIVE STANDARD BE MET BEFORE THE
IMPOSITION OF SENTENCE.  THERE IS VIRTUAL UNANIMITY OF OPINION IN THE
LEGISLATIVE HISTORY THAT THE ACT WAS INTENDED TO INCREASE THE
SENTENCING OPTIONS OF FEDERAL JUDGES, RATHER THAN TO LIMIT THE EXERCISE
OF THEIR DISCRETION WHETHER TO EMPLOY THE NEWLY CREATED OPTIONS. 

TO CONSTRUE 5010 (D)'S REQUIREMENT OF A "NO BENEFIT"  FINDING TO
CIRCUMSCRIBE THAT DISCRETION WOULD BE INCOMPATIBLE WITH A CLEAR
CONGRESSIONAL INTENT; SUCH A CONSTRUCTION WOULD ALSO BE AT ODDS WITH
TRADITIONAL SENTENCING DOCTRINE.  THE INTENT OF CONGRESS WAS IN ACCORD
WITH LONG-ESTABLISHED AUTHORITY IN THE UNITED STATES VESTING THE
SENTENCING FUNCTION EXCLUSIVELY IN THE TRIAL COURT.  /14/

  "IF THERE IS ONE RULE IN THE FEDERAL CRIMINAL PRACTICE WHICH IS

  FRIMLY ESTABLISHED, IT IS THAT THE APPELLATE COURT HAS NO CONTROL

  OVER A SENTENCE WHICH IS WITHIN THE LIMITS ALLOWED BY A

  STATUTE."  GURERA V. UNITED STATES, 40 F.2D 338, 340 - 341 (CA8

  1930).  ##HC441

SEE GORE V. UNITED STATES, 357 U.S. 386 (1958); TOWNSEND V. BURKE, 334
U.S. 736 (1948); BLOCKBURGER V. UNITED STATES, 284 U.S. 299 (1932). 

THE STATUTES REFERRED TO IN THIS LINE OF CASES ESTABLISHED A
PERMISSABLE RANGE WITHIN WHICH SENTENCES COULD BE IMPOSED; IF A JUDGE
IMPOSED A SENTENCE WITHIN THAT RANGE, HIS EXERCISE OF DISCRETION AS TO
WHERE WITHIN THE PERMISSABLE RANGE SENTENCE SHOULD BE FIXED WAS NOT
SUBJECT TO CHALLENGE.  THE AUTHORITY TO SENTENCE A YOUTH OFFENDER UNDER
"ANY OTHER APPLICABLE PENALTY PROVISION" IS EXPRESSLY RESERVED TO
FEDERAL TRIAL COURTS BY 5010 (D), AND THUS IS WITHIN THE PERMISSIBLE
RANGE OF SENTENCES WHICH MAY BE IMPOSED UNDER THE ACT.  THE "NO
BENEFIT" FINDING REQUIRED BY THE ACT IS NOT TO BE READ AS A SUBSTANTIVE
STANDARD WHICH MUST BE SATISFIED TO SUPPORT A SENTENCE OUTSIDE THE ACT,
FOR SUCH A READING WOULD SUBJECT THE SENTENCE TO APPELLATE REVIEW EVEN
THOUGH THE SENTENCE WAS PERMITTED BY THE ACT'S TERMS, THEREBY LIMITING
THE SENTENCING COURT'S DISCRETION.  WE WILL NOT ASSUME CONGRESS TO HAVE
INTENDED SUCH A DEPARTURE FROM WELL-ESTABLISHED DOCTRINE WITHOUT A
CLEAR EXPRESSION TO DISAVOW IT.  AS OUR REVIEW HAS SHOWN, THE EXCLUSIVE
SENTENCING POWER OF DISTRICT JUDGES WAS ACKNOWLEDGED, AND CONGRESS'
INTENTION TO AFFIRM THAT POWER WAS CLEARLY INDICATED. 

FROM OUR CONCLUSION THAT A FINDING OF "NO BENEFIT" WAS NOT INTENDED
TO CONSTITUTE A SUBSTANTIVE STANDARD, IT FOLLOWS THAT A SENTENCE
OUTSIDE THE ACT NEED NOT BE ACCOMPANIED BY A STATEMENT OF REASONS WHY
THE COURT CHOSE SUCH A SENTENCE.  THE ONLY PURPOSE OF SUCH A
REQUIREMENT WOULD BE TO FACILITATE APPELLATE SUPERVISION OF, AND THUS
TO LIMIT, THE TRIAL COURT'S SENTENCING DISCRETION.  /15/  IN SHORT WE
HOLD THAT THE DISCRETION VESTED IN A DISTRICT JUDGE UNDER 5010 (D) IS
ESSENTIALLY THE SAME AS THE TRADITIONAL DISCRETION VESTED IN THE COURT,
FOR EXAMPLE, TO IMPOSE THE MINIMUM SENTENCE ON A FIRST OFFENDER OR A
LARGER SENTENCE ON A RECIDIVIST.  IF THE FAILURE OF A COURT TO SENTENCE
A PARTICULAR YOUTH OFFENDER UNDER THE ACT APPEARS "TOO HARSH, THE
REMEDY MUST BE AFFORDED BY ACT OF CONGRESS, NOT BY JUDICIAL LEGISLATION
UNDER THE GUISE OF CONSTRUCTION," BLOCKBURGER, SUPRA, AT 305, SINCE
"(WHATEVER VIEWS MAY BE ENTERTAINED REGARDING SEVERITY OF PUNISHMENT .
. . (THESE ARE PECULIARLY QUESTIONS OF LEGISLATIVE POLICY."  GORE,
SUPRA, AT 393. 

        (B) 

ALTHOUGH THE ACT WAS NOT IN ANY WAY INTENDED TO CIRCUMSCRIBE THE
DISCRETION OF SENTENCING COURTS, IT DID PROVIDE A NEW SENTENCING
ALTERNATIVE DESIGNED TO PREVENT YOUTHFUL OFFENDERS FROM CONTINUING
THEIR INVOLVEMENT IN CRIMINAL CONDUCT AFTER THE EXPIRATION OF THEIR
SENTENCE.  IN THE NOVELTY OF THE TREATMENT OPTION MADE AVAILABLE, AND
THE IMPORTANCE OF THE OBJECTIVE IT WAS TO SERVE, LIES THE PURPOSE OF
5010 (D)'S REQUIREMENT THAT THE COURT FIND "NO BENEFIT" BEFORE IMPOSING
A SENTENCE OTHER THAN ONE UNDER 5010 (B) OR (C). 

ALTHOUGH WELL-ESTABLISHED DOCTRINE BARS REVIEW OF THE EXERCISE OF
SENTENCING DISCRETION, LIMITED REVIEW IS AVAILABLE WHEN SENTENCING
DISCRETION IS NOT EXERCISED AT ALL.  YATES V. UNTED STATES, 356 U.S.
363, 366 - 367 (1958); UNITED STATES V. DANIELS, 446 F.2D 967, 972 (CA6
1971); UNITED STATES V. WILLIAMS, 407 F.2D 940, 945 (CA4 1969).  SEE
ALSO N. 7, SUPRA.  THE REQUIREMENT OF THE "NO BENEFIT"  FINDING WAS
DISCRETION IN CHOOSING NOT TO COMMIT A YOUTH OFFENDER TO TREATMENT
UNDER THE ACT.  SUCH A FINDING WOULD MAKE UNMISTAKABLY CLEAR THAT THE
SENTENCING JUDGE WAS NOT ONLY AWARE OF THE EXISTENCE OF THE NEW ACT,
BUT ALSO KNEW THAT THE YOUTH OFFENDER BEFORE HIM WAS ELIGIBLE BECAUSE
OF HIS AGE FOR THE TREATMENT IT PROVIDED TO ACCOMPLISH ITS IMPORTANT
PURPOSE. 

"APPELLATE MIDIFICATION OF A STATUTORILY-AUTHORIZED SENTENCE . . .
IS AN ENTIRELY DIFFERENT MATTER THAN THE CAREFUL SCRUTINY OF THE
JUDICIAL PROCESS BY WHICH THE PARTICULAR PUNISHMENT WAS DETERMINED. 
RATHER THAN AN UNJUSTIFIED INCURSION INTO THE PROVINCE OF THE
SENTENCING JUDGE, THIS LATTER RESPONSIBILITY IS, ON THE CONTRARY, A
NECESSARY INCIDENT OF WHAT HAS ALWAYS BEEN APPROPRIATE APPELLANTE
REVIEW OF CRIMINAL CASES."  UNITED STATES V. HARTFORD, 489 F.2D 652,
654 (CA5 1974).  (EMPHASIS IN ORIGINAL.)  ONCE IT IS MADE CLEAR THAT
THE SENTENCING JUDGE HAS CONSIDERED THE OPTION OF TREATMENT UNDER THE
ACT AND REJECTED IT, HOWEVER, NO APPELLATE REVIEW IS WARRANTED. 

THE QUESTION WHETHER THE FINDING OF "NO BENEFIT" MUST BE EXPLICIT OR
WHETHER IT MAY BE IMPLICIT IN THE RECORD OF A PARTICULAR CASE, IS
ANSWERED BY THE MANIFEST DESIRE OF CONGRESS TO ASSURE THAT TREATMENT
UNDER THE ACT BE CONSIDERED BY THE COURT AS ONE OPTION WHENEVER THE
YOUTH OFFENDER IS ELIGIBLE FOR IT.  IF THE FINDING MAY BE IMPLIED FROM
THE RECORD APPELLATE COURT MUST GO ON TO DETERMINE WHAT CONSTITUTES A
SUFFICIENT SHOWING OF THE REQUISITE IMPLICATION.  TO HOLD THAT A "NO
BENEFIT" FINDING IS IMPLICIT EACH TIME A SENTENCE UNDER THE ACT IS NOT
CHOSEN WOULD RENDER 5010 (D) NUGATORY; TO HOLD THAT SOMETHING MORE IS
NECESSARY TO SUPPORT THE INFERENCE THAT MUST BE FOUND IN THE RECORD
WOULD CREATE AN AD HOC RULE.  APPELLATE COURTS SHOULD NOT BE SUBJECT TO
THE BURDEN OF CASE-BY-CASE EXAMINATION OF THE RECORD TO MAKE SURE THAT
THE SENTENCING JUDGE CONSIDERED THE TREATMENT OPTION MADE AVAILABLE BY
THE ACT.  LITERAL COMPLIANCE WITH THE ACT CAN BE SATISFIED BY ANY
EXPRESSION THAT MAKES CLEAR THE SENTENCING JUDGE CONSIDERED THE
ALTERNATIVE OF SENTENCING UNDER THE ACT AND DECIDED THAT THE YOUTH
OFFENDER WOULD NOT DERIVE BENEFIT FROM TREATMENT UNDER THE ACT. 

THIS CASE PROVIDES AN EXAMPLE OF THE PROBLEMS ARISING WHEN THE
REQUIRED FINDING IS LEFT TO IMPLICATION.  COUNSEL'S REFERENCES TO THE
ACT FOLLOWED BY THE DISTRICT COURT'S SENTENCE INDEED AFFORD SUPPORT FOR
THE ARGUMENT THAT, BY IMPLICATION, THE OPTIONS OF THE ACT WERE
CONSIDERED AND REJECTED.  HOWEVER AT THE POST-CONVICTION HEARING THE
DISTRICT COURT FOUND FROM THE RECORD OF THE SENTENCING HEARING THE
IMPLICATION THAT THE ACT WAS "NOT APPLICABLE."  IT IS THUS UNCLEAR
WHETHER THIS MEANT THE COURT BELIEVED PETITIONER TO BE LEGALLY
INELIGIBLE FOR TREATMENT UNDER THE ACT--WHICH WOULD BE ERROR--OR
WHETHER, REALIZING HE WAS ELIGIBLE, NEVERTHELESS DELIBERATELY OPTED TO
SENTENCE HIM AS AN ADULT.  AN EXPLICIT FINDING THAT PETITIONER WOULD
NOT HAVE BENEFITED FROM TREATMENT UNDER THE ACT WOULD HAVE REMOVED ALL
DOUBT CONCERNING WHETHER THE ENLARGED DISCRETION CONGRESS PROVIDED TO
SENTENCING COURTS WAS INDEED EXERCISED. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND
THE CASE IS REMANDED TO THE END THAT THE DISTRICT COURT CONDUCT FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  WILLIAMS V. UNITED STATES, 476 F.2D 970 (CA3 1973); COX V.
UNITED STATES, 473 F.2D 334 (CA4 1973) (EN BANC); UNITED STATES V.
JARRATT, 471 F.2D 226 (CA9 1972), CER.  DENIED, 411 U.S. 969 (1973);
CF. UNITED STATES V. WALKER, 469 F.2D 1377 (CA1 1972). 

/2/  BROOKS V. UNITED STATES, 497 F. 2D 1059 (CA6 1974); UNITED
STATES V. KAYLOR, 491 F.2D 1133 (CA2 1974) (EN BANC); UNITED STATES V.
COEFIELD, 155 U.S. APP. D.C. 205, 476 F.2D 1152 (1973) (EN BANC); CF.
UNITED STATES V. SCHENKER, 486 F.2D 318 (CA5 1973); SEE ALSO SMALL V.
UNITED STATES, 304 A.2D 641 (DC CT. APP. 1973). 

/3/  TITLE 18 U.S.C. 2 MADE PETITIONER PUNISHABLE AS A PRINCIPAL FOR
ANY OFFENSE AGAINST THE UNITED STATES COMMITTED BY HIS CODEFENDANT. 
TITLE 21 U.S.C. 844 (A) MAKES PUNISHABLE THE KNOWING OR INTENTIONAL
POSSESSION OF A CONTROLLED SUBSTANCE SUCH AS LSD WHEN NOT OBTAINED
PURSUANT TO A VALID PRESCRIPTION OR ORDER, OR A OTHERWISE AUTHORIZED BY
LAW. 

/4/  THE SENTENCING PROVISIONS OF THE ACT, 18 U.S.C. 5010, ARE AS
FOLLOWS: 

"(A) IF THE COURT IS OF THE OPINION THAT THE YOUTH OFFENDER DOES NOT
NEED COMMITMENT, IT MAY SUSPEND THE IMPOSITION OR EXECUTION OF SENTENCE
AND PLACE THE YOUTH OF PROBATION. 

(B) IF THE COURT SHALL FIND THAT A CONVICTED PERSON IS A YOUTH
OFFENDER, AND THE OFFENSE IS PUNISHABLE BY IMPRISONMENT UNDER
APPLICABLE PROVISIONS OF LAW OTHER THAN THIS SUBSECTION, THE COURT MAY,
IN LIEU OF THE PENALTY OF IMPRISONMENT OTHERWISE PROVIDED BY LAW,
SENTENCE THE YOUTH OFFENDER TO THE CUSTODY OF THE ATTORNEY GENERAL FOR
TREATMENT AND SUPERVISION PURSUANT TO THIS CHAPTER UNTIL DISCHARGED BY
THE DIVISION AS PROVIDED IN SECTION 5017 (C) OF THIS CHAPTER; OR 
"(C) IF THE COURT SHALL FIND THAT THE YOUTH OFFENDER MAY NOT BE ABLE TO
DERIVE MAXIMUM BENEFIT FROM TREATMENT BY THE DIVISION PRIOR TO THE
EXPIRATION OF SIX YEARS FROM THE DATE OF CONVICTION IT MAY, IN LIEU OF
THE PENALTY OF IMPRISONMENT OTHERWISE PROVIDED BY LAW, SENTENCE THE
YOUTH OFFENDER TO THE CUSTODY OF THE ATTORNEY GENERAL FOR TREATMENT AND
SUPERVISION PURSUANT TO THIS CHAPTER FOR ANY FURTHER PERIOD THAT MAY BE
AUTHORIZED BY LAW FOR THE OFFENSE OR OFFENSES OF WHICH HE STANDS
CONVICTED OR UNTIL DISCHARGED BY THE DIVISION AS PROVIDED IN SECTION
5017 (D) OF THIS CHAPTER. 

"(D) IF THE COURT SHALL FIND THAT THE YOUTH OFFENDER WILL NOT DERIVE
BENEFIT FROM TREATMENT UNDER SUBSECTION (B) OR (C), THEN THE COURT MAY
SENTENCE THE YOUTH OFFENDER UNDER ANY OTHER APPLICABLE PENALTY
PROVISION. 

"(E) IF THE COURT DESIRES ADDITIONAL INFORMATION AS TO WHETHER A
YOUTH OFFENDER WILL DERIVE BENEFIT FROM TREATMENT UNDER SUBSECTION (B)
OR (C) IT MAY ORDER THAT HE BE COMMITTED TO THE CUSTODY OF THE ATTORNEY
GENERAL FOR OBSERVATION AND STUDY AT AN APPROPRIATE CLASSIFICATION
CENTER OR AGENCY.  WITHIN SIXTY DAYS FROM THE DATE OF THE ORDER, OR
SUCH ADDITIONAL PERIOD AS THE COURT MAY GRANT, THE DIVISION SHALL
REPORT TO THE COURT ITS FINDINGS." 

THE RELEASE OF YOUTH OFFENDERS COMMITTED UNDER 5010 IS GOVERNED BY
18 U.S.C. 5017, WHICH PROVIDES IN PART: 

"(A) THE DIVISION AT ANY TIME AFTER REASONABLE NOTICE TO THE
DIRECTOR RELEASE CONDITIONALLY UNDER SUPERVISION A COMMITTED YOUTH
OFFENDER.  WHEN, IN THE JUDGMENT OF THE DIRECTOR, A COMMITTED YOUTH
OFFENDER SHOULD BE RELEASED CONDITIONALLY UNDER SUPERVISION HE SHALL SO
REPORT AND RECOMMEND TO THE DIVISION. 

"(B) THE DIVISION MAY DISCHARGE A COMMITTED YOUTH OFFENDER
UNCONDITIONALLY AT THE EXPIRATION OF ONE YEAR FROM THE DATE OF
CONDITIONAL RELEASE. 

"(C) A YOUTH OFFENDER COMMITTED UNDER SECTION 5010 (B) OF THIS
CHAPTER SHALL BE RELEASED CONDITIONALLY UNDER SUPERVISION ON OR BEFORE
THE EXPIRATION OF FOUR YEARS FROM THE DATE OF HIS CONVICTION AND SHALL
BE DISCHARGED UNCONDITIONALLY ON OR BEFORE SIX YEARS FROM THE DATE OF
HIS CONVICTION. 

"(D) A YOUTH OFFENDER COMMITTED UNDER SECTION 5010 (C) OF THIS
CHAPTER SHALL BE RELEASED CONDITIONALLY UNDER SUPERVISION NOT LATER
THAN TWO YEARS BEFORE THE EXPIRATION OF THE TERM IMPOSED BY THE COURT. 
HE MAY BE DISCHARGED UNCONDITIONALLY AT THE EXPIRATION OF NOT LESS THAN
ONE YEAR FROM THE DATE OF HIS CONDITIONAL RELEASE.  HE SHALL BE
DISCHARGED UNCONDITIONALLY AT THE EXPIRATION OF THE MAXIMUM SENTENCE
IMPOSED, COMPUTED UNINTERRUPTEDLY FROM THE DATE OF CONVICTION." 

/5/  ALTHOUGH PETITIONER'S COMPLAINT HERE IS THAT HE WAS NOT
SENTENCED UNDER THE ACT, FOLLOWING HIS CONVICTION HE CHALLENGED THE
VALIDITY OF HIS PLEA IN PART ON THE GROUND THAT HE WAS NOT INFORMED
THAT UNDER THE ACT HE COULD HAVE RECEIVED A SENTENCE OF INCARCERATION
AND SUPERVISION UP TO A PERIOD OF SIX YEARS, 18 U.S.C. 5010 (B) AND
5017 (C), SEE N. 4, SUPRA, IN ASSERTED VIOLATION OF RULE 11.  THE
DISTRICT COURT DENIED RELIEF ON THIS GROUND; THAT RULING HAS NOT BEEN
CHALLENGED. 

/6/  THERE IS NO CONTENTION MADE THAT THE DISTRICT COURT COULD NOT
PLACE PETITIONER ON PROBATION UNDER 18 U.S.C. 3651, AS OPPOSED TO
PROBATION UNDER THE ACT, 18 U.S.C. 5010 (A).  SEE UNITED STATES V.
KURZYNA, 485 F.2D 517 (CA2 1973).  PETITIONER WAS RELEASED FROM
CONFINEMENT TO PROBATION ON MAY 11, 1972, WITH THE SPECIAL CONDITION
THAT HIS PROBATION TERMINATE MAY 11, 1974.  ALTHOUGH BY NOW PETITIONER
MAY HAVE FULLY SERVED HIS SENTENCE, INCLUDING PROBATION, HE STILL
SUFFERS THE DISABILITIES ACCOMPANYING A CRIMINAL MISDEMEANOR CONVICTION
UNDER 21 U.S.C. 844 (A).  WHILE THE PROVISION UNDER WHICH HE WAS
SENTENCED TO PROBATION, 18 U.S.C. 3651, DOES NOT PROVIDE FOR RELIEF
FROM THESE DISABILITIES, THE ACT DOES SO IN 18 U.S.C. 5021, BY ITS
PROVISION FOR SETTING ASIDE THE CONVICTION OF A YOUTH OFFENDER: 

"(A) UPON THE UNCONDITIONAL DISCHARGE BY THE DIVISION OF A COMMITTED
YOUTH OFFENDER BEFORE THE EXPIRATION OF THE MAXIMUM SENTENCE IMPOSED
UPON HIM, THE CONVICTION SHALL BE AUTOMATICALLY SET ASIDE AND THE
DIVISION SHALL ISSUE TO THE YOUTH OFFENDER A CERTIFICATE TO THAT
EFFECT. 

"(B) WHERE A YOUTH OFFENDER HAS BEEN PLACED ON PROBATION BY THE
COURT, THE COURT MAY THEREAFTER, IN ITS DISCRETION, UNCONDITIONALLY
DISCHARGE SUCH YOUTH OFFENDER FROM PROBATION PRIOR TO THE EXPIRATION OF
THE MAXIMUM PERIOD OF PROBATION THERETOFORE FIXED BY THE COURT, WHICH
DISCHARGE SHALL AUTOMATICALLY SET ASIDE THE CONVICTION, AND THE COURT
SHALL ISSUE TO THE YOUTH OFFENDER A CERTIFICATE TO THAT EFFECT." 

DESPITE THE EXPIRATION OF PETITIONER'S SENTENCE, THEN, HE MAY STILL
RECEIVE THE BENEFIT OF 18 U.S.C. 5021 IF HE IS RESENTENCED UNDER THE
ACT.  TO BE ELIGABLE TO HAVE HIS CONVICTION SET ASIDE UNDER THE ACT,
PETITIONER WOULD HAVE TO BE COMMITTED UNDER 5010 (B) OR (C), OR PLACED
ON PROBATION UNDER 5010 (A), AND ACHIEVE THE EARLY DISCHARGE REQUIRED
BY 5021 (A) OR (B).  WHILE THIS MIGHT REQUIRE THE IMPOSITION OF A
LONGER SENTENCE THAN HE ORIGINALLY RECEIVED, PETITIONER REPRESENTS
THROUGH COUNSEL THAT HE WOULD VOLUNTARILY SEEK RESENTENCING WHICH WOULD
PLACE HIM BACK ON PROBATION.  TR. OF ORAL ARG. 8, 16 - 18.  THE
DISTRICT COURT WOULD THEN BE ABLE, AS A MATTER OF DISCRETION, TO
PROVIDE THE REQUISITE EARLY UNCONDITIONAL DISCHARGE.  18 U.S.C. 5021
(B). 

/7/  THERE IS NO CONTENTION HERE THAT THE DISTRICT COURT RELIED UPON
IMPROPER OR INACCURATE INFORMATION.  UNITED STATES V. TUCKER, 404 U.S.
443 (1972).  PETITIONER CONTENDS HE WAS DENIED DUE PROCESS BECAUSE HE
WAS DEPRIVED OF HIS CLAIMED RIGHT TO BE SENTENCED UNDER THE ACT,
WITHOUT A REASONED EXPLANATION ON THE RECORD FOR THE ASSERTED
DEPRIVATION.  WE NEED NOT ADDRESS THIS CONTENTION, FOR IT WAS NOT
RAISED BEFORE THE DISCTICT COURT, THE COURT OF APPEALS, OR IN THE
QUESTIONS PRESENTED IN THE PETITION FOR CERTIORARI.  PHILLIPS CO. V.
DUMAS SCHOOL DIST., 361 U.S. 376, 386 N. 12 (1960); IRVINE V.
CALIFORNIA, 347 U.S. 128, 129 - 130 (1954); RADIO OFFICERS' UNION V.
NLRB, 347 U.S. 17, 37 N. 35 (1954). 

/8/  IN 1941 MR. CHIEF JUSTICE STONE REQUESTED THE JUDICIAL
CONFERENCE TO STUDY THE GENERAL SUBJECT OF PUNISHMENT FOR CRIME.  THE
CHIEF JUSTICE APPOINTED FOUR FEDERAL COURTS OF APPEALS JUDGES AND THREE
DISTRICT JUDGES TO THE COMMITTEE WHICH UNDERTOOK THE STUDY.  A
SUBCOMMITTEE GAVE PARTICULAR ATTENTION TO THE TREATMENT OF YOUTH
OFFENDERS.  THE COMMITTEE MADE A REPORT TO THE JUDICIAL CONFERENCE IN
1942, AND DEVELOPED A DRAFT OF AN ACT TO PROVIDE A CORRECTIONAL SYSTEM
FOR ADULT AND YOUTH OFFENDERS.  THE REPORT AS ADOPTED BY THE CONFERENCE
WAS FIRST PRESENTED TO CONGRESS IN 1943.  THE RECOMMENDATIONS REGARDING
YOUTH OFFENDERS WERE LARGELY ADOPTED BY CONGRESS IN 1949 IN THE BILL
WHICH BECAME THE FEDERAL YOUTH CORRECTIONS ACT IN 1950. 

/9/  THE ACT IS ORDINARILY NOT APPLIED TO CONVICTED PERSONS UNDER
THE AGE OF 18, WHO ARE ELIGIBLE FOR SENTENCING UNDER THE PROVISIONS OF
THE FEDERAL JUVENILE DELINQUENCY ACT, 18 U.S.C. 5031 ET SEG.  AND
CERTAIN MULTIPLE OFFENDERS IN THE DISTRICT OF COLUMBIA ARE, DESPITE
THEIR QUALIFYING AGE, BARRED FROM SENTENCING UNDER THE ACT.  D.C. CODE
ANN. 22 - 3202 (D) (1).  BY CONTRAST, CONVICTED PERSONS BETWEEN THE AGE
OF 22 AND 26, TERMED "YOUNG ADULT" OFFENDERS, MAY BE SENTENCED FOR
TREATMENT UNDER THE ACT IF "THE COURT FINDS THAT THERE IS REASONABLE
GROUND) TO BELIEVE THAT THE DEFENDANT WILL BENEFIT FROM" TREATMENT
UNDER THE ACT.  18 U.S.C. 4209.  OF COURSE ADULT OFFENDERS ARE ELIGABLE
FOR SENTENCING ONLY UNDER STATUTORY PROVISIONS OUTSIDE THOSE AVAILABLE
FOR JUVENILES, YOUTH OFFENDERS, AND YOUNG ADULT OFFENDERS. 

/10/  IN 1952, CONGRESS AMENDED 5024 OF THE ACT, AND ADDED 5025 AND
5026, IN ORDER TO EXTEND THE ACT'S COVERAGE TO YOUTH OFFENDERS
CONVICTED IN THE DISTRICT OF COLUMBIA.  66 STAT. 45.  IN 1967, CONGRESS
FURTHER AMENDED THESE SECTIONS, WITHDRAWING FROM THE BUREAU OF PRISONS
AND THE YOUTH CORRECTION DIVISION CONTROL OF DISTRICT OF COLUMBIA YOUTH
OFFENDERS DURING THEIR COMMITMENT AND AFTER THEIR RELEASE.  CONTROL
DURING THESE PERIODS WAS INSTEAD GIVEN TO THE COMMISSIONER OF THE
DISTRICT FO COLUMBIA, WHO WOULD IN TURN DELEGATE THIS AUTHORITY TO THE
D.C. DEPARTMENT OF CORRECTIONS, IN ORDER TO PROVIDE CONTINUITY OF
TREATMENT. 

/11/  IN RECOGNITION OF THE DIFFICULTY OF ASSERTING WHETHER, AND IF
SO WHICH TYPE OF, TREATMENT UNDER THE ACT WOULD BENEFIT A YOUTH
OFFENDER, THE ACT ALSO PERMITS THE SENTENCING COURT TO COMMIT THE
OFFENDER TO ONE OF THE ABOVE CLASSIFICATION AGENCIES WHERE, FOLLOWING
OBSERVATION AND STUDY, THE YOUTH CORRECTION DIVISION REPORTS ITS
FINDINGS TO THE COURT WITHIN 60 DAYS.  18 U.S.C. 5010(E). 

/12/  THE ONLY OTHER JUDGES TO TESTIFY BEFORE THE SENATE
SUBCOMMITTEE WERE ALSO IN ACCORD.  DISTRICT JUDGE CARROLL HINCKS, WHO
SERVED ON THE CONFERENCE SUBCOMMITTEE STUDYING TREATMENT OF YOUTH
OFFENDERS, STATED:  "I THINK WHEN THE JUDGES SAY THEY ARE OPPOSED TO
THE PREDECESSOR OF THIS BILL, IF YOU COULD TALK WITH THEM, YOU WOULD
FIND THAT . . . THEY WOULD NOT THEMSELVES WANT TO USE IT.  VERY WELL,
THEY DO NOT HAVE TO USE IT."  HEARINGS 57. 

DISTRICT JUDGE BOLITHA J. LAWS, WHO SERVED ON THE CONFERENCE SPECIAL
COMMITTEE STUDYING GENERAL PUNISHMENT FOR CRIME, STATED:  "I HAVE
ALREADY TOLD YOU THAT THIS LAW IS PURELY AN OPTIONAL SITUATION.  A
JUDGE WHO FEELS THAT THE PRESENT SYSTEM IS IN ALL RESPECTS PERFECT AND
WHO DOES NOT WANT TO USE THE NEW PROVISIONS, EXCEPT PERHAPS RARELY,
DOES NOT HAVE TO USE THEM.  HE STILL MAY DO ONE OF TWO THINGS.  HE MAY
ADMIT THE MAN TO PROBATION, OR HE MAY SEND HIM TO AN INSTITUTION
EXACTLY AS HE DOES NOW."  ID., AT 15. 

MR. JAMES V. BENNETT, DIRECTOR, BUREAU OF PRISIONS, TESTIFIED
SIMILARLY:  "I WOULD LIKE TO . . . REEMPHASISE MORE THAN JUDGE LAWS HAD
DONE, THAT THIS BILL IS DISCRETIONARY . . . (IT IS VERY DIFFICULT FOR
ME TO CONCEIVE OF ANYBODY WHO COULD RIGHTFULLY OBJECT TO THE BILL
BECAUSE THEY CAN USE IT OR NOT, AS THEY SEE FIT . . ."  ID., AT 25. 

DURING THE SENATE DEBATE OVER THE BILL, SENATOR KILGORE MADE CLEAR
HIS POSITION OF THE MATTER OF SENTENCING DISCRETION UNDER THE BILL:
"ITS PURPOSE IS TO GRANT TO TRIAL COURTS . . . SOME ADDITIONAL
FACILITIES . . . TO TRY CERTAIN CORRECTIONAL METHODS.  USE OF THE
SYSTEM PROVIDED BY THIS MEASURE WOULD NOT BE MANDATORY."  96 CONG. REC.
8267 (1950).  THERE WAS NOT DISCUSSION OF SENTENCING DISCRETION BY
ANYONE OTHER THAN SENATOR KILGORE IN EITHER THE SENATE OR HOUSE
DEBATES. 

/13/  THE SENATE REPORT ALSO NOTED THAT THE SENTENCING JUDGE MAY
SENTENCE A YOUTH OFFENDER UNDER APPLICABLE PROVISIONS OTHER THAN THE
ACT IF, AFTER RECEIVING A PRE-SENTENCE DIAGNOSIS UNDER 18 U.S.C.  5010
(E), SEE N. 11, SUPRA, HE IS CONVINCED THE YOUTH IS "INCORRIGIBLE AND
WOULD DERIVE NO HELP FROM THE PROGRAM."  S. REP. NO. 1180, P.5.  THE
REMARK WAS MADE IN THE CONTEXT OF A DISCUSSION CONCERNING THE NEED
SENTENCING JUDGES HAVE FOR ADDITIONAL INFORMATION ABOUT YOUTH OFFENDERS
THEY MUST SENTENCE, AND INDICATED MERELY THAT TEMPORARY COMMITMENT
UNDER 5010 (E) WOULD NOT DEPRIVE THE JUDGE OF THE DISCRETION TO
SENTENCE THE YOUTH OUTSIDE THE ACT, CITING ILLUSTRATIVELY THE PROTOTYPE
OF YOUTH OFFENDER WHOM JUDGES WOULD NOT LIKELY DESIRE TO SENTENCE UNDER
THE ACT. 

/14/  TO THE EXTENT REFERENCE WAS MADE TO THE ENGLISH BORSTAL SYSTEM
FOR TREATING YOUNG OFFENDERS IN DRAFTING THE ACT, THAT REFERENCE DID
NOT INCLUDE THE ENGLISH VIEW OF THE TRIAL COURT'S DISCRETION TO MAKE
USE OF THAT SYSTEM.  CIRCUIT JUDGE (NOW CHIEF JUDGE) KAUFMAN OF THE
COURT OF APPEALS FOR THE SECOND CIRCUIT HAS STATED: 

"AT PRESENT THE UNITED STATES IS THE ONLY NATION IN THE FREE WORLD
WHERE ONE JUDGE CAN DETERMINE CONCLUSIVELY, DECISIVELY AND FINALLY THE
MINIMUM PERIOD OF TIME A DEFENDANT MUST REMAIN IN PRISON, WITHOUT BEING
SUBJECT TO ANY REVIEW OF HIS DETERMINATION."  SYMPOSIUM, APPELLATE
REVIEW OF SENTENCES, 32 F. R. D. 257, 260 - 261 (1962). 

PROFESSOR SANFORD H. KADISH ALSO NOTES THAT IN THE UNITED STATES,
THE "DISCRETION OF THE JUDGE . . . IN (SENTENCING) MATTERS IS VIRTUALLY
FREE OF SUBSTANTIVE CONTROL OR GUIDANCE," KADISH, LEGAL NORM AND
DISCRETION IN THE POLICE AND SENTENCING PROCESSES, 75 HARV. L. REV.
904, 916 (1962).  WE ARE UNWILLING TO ASCRIBE TO THE CONGRESS AN INTENT
TO IMPORT, SUB SILENTIO, SENTENCING DOCTRINE CONTRARY TO TRADITIONAL
POWERS OF SENTENCING JUDGES. 

/15/  JUDGE MARVIN E. FRANKEL (SDNY) HAS RECENTLY STATED THAT WHILE
JUDGES ARE REQUIRED TO EXPLAIN OTHER RULINGS, SEE, E. G., FED.  RULE
CIV. PROC. 52 (A), "(THERE IS NO SUCH REQUIREMENT IN THE ANNOUNCEMENT
OF A PRISON SENTENCE."  FRANKEL, LAWLESSNESS IN SENTENCING, 41 U. CIN. 
L. REV. 1, 9 (1972).  IT WOULD HAVE BEEN A VERY SIMPLE MATTER FOR
CONGRESS TO HAVE INCLUDED A STATEMENT IN 5010 (D) THAT THE SENTENCING
COURT'S DETERMINATION OF NO BENEFIT MUST BE SUPPORTED BY REASONS, AS
WAS REQUIRED BY THE PROPOSAL REGARDING ADULT OFFENDERS, BEFORE THE
CONGRESS IN 1943, S. 895, TIT.  II, 1, 78TH CONG., 1ST SESS. SEE N. 8,
SUPRA.  CONGRESS' FAILURE TO SO PROVIDE IN 5010 (D) STRENGTHENS OUR
VIEW THAT IT INTENDED NO NEW APPELLATE ENCUMBRANCE UPON THE SENTENCING
PROCESS. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN.  AND MR. JUSTICE STEWART JOIN, CONCURRING IN THE JUDGMENT. 

THE COURT IS TODAY CALLED UPON TO CONSTRUE THE PROVISION OF THE
FEDERAL YOUTH CORRECTIONS ACT, 18 U.S.C. 5005 ET SEQ., DEFINING THE
CIRCUMSTANCES UNDER WHICH A YOUTH OFFENDER MAY BE SENTENCED AS AN
ADULT.  THE YOUTH CORRECTIONS ACT (YCA) PROVIDES A COMPREHENSIVE
SENTENCING SCHEME FOR OFFENDERS BETWEEN THE AGES OF 18 AND 22,
AFFORDING TRIAL JUDGES FOUR OPTIONS FOR SENTENCING SUCH OFFENDERS.  THE
JUDGE MAY SUSPEND IMPOSITION OR EXECUTION OF SENTENCE AND PLACE THE
OFFENDER ON PROBATION.  18 U.S.C. 5010 (A).  ALTERNATIVELY, THE JUDGE
MAY SENTENCE THE OFFENDER FOR TREATMENT AND SUPERVISION AT A SPECIAL
YOUTH FACILITY, TO BE DISCHARGED IN NO MORE THAN 6 YEARS, 18 U.S.C.
5010 (B), OR HE MAY COMMIT THE OFFENDER TO A YOUTH INSTITUTION FOR A
TERM WHICH MAY EXCEED 6 YEARS, UP TO THE MAXIMUM PERIOD AUTHORIZED BY
LAW FOR THE OFFENSE.  18 U.S.C. 5010 (C).  /1/  FINALLY, THE JUDGE MAY
SENTENCE THE OFFENDER AS AN ADULT, PURSUANT TO 18 U.S.C. 5010 (D),
WHICH PROVIDES THAT: 

     "IF THE COURT SHALL FIND THAT THE YOUTH OFFENDER WILL NOT

  DERIVE BENEFIT FROM TREATMENT UNDER SUBSECTION (B) OR (C), THEN

  THE COURT MAY SENTENCE THE YOUTH OFFENDER UNDER ANY OTHER

  APPLICABLE PENALTY PROVISION." 

I AGREE WITH THE COURT'S HOLDING THAT 5010 (D) REQUIRES AN EXPLICIT
FINDING OF "NO BENEFIT" AS A CONDITION PRECEDENT TO SENTENCING AN
ELIGIBLE OFFENDER AS AN ADULT, ANTE, AT 444, BUT I FIND THAT HOLDING
PATENTLY INCONSISTENT WITH THE COURT'S ASSERTION THAT A SENTENCING
JUDGE NEED ONLY BE AWARE OF THE APPLICABILITY OF THE ACT AND CHOOSE TO
REJECT IT IN ORDER TO SATISFY THE CLEAR ADMONITION OF 5010 (D).  AS
CONSTRUED BY THE COURT, THE "NO BENEFIT"  FINDING IS NOT A FINDING AT
ALL. 

I AM CONVINCED THAT THE ACT WAS MEANT TO "PROVIDE A PREFERRED
SENTENCING ALTERNATIVE WHICH MUST BE USED IN SENTENCING A YOUTHFUL
OFFENDER UNLESS, IN THE LANGUAGE OF 5010 (D), 'THE COURT SHALL FIND
THAT THE YOUTH OFFENDER WILL NOT DERIVE BENEFIT FROM TREATMENT . . .'" 
UNDER THE ACT.  COX V. UNITED STATES, 473 F.2D 334, 337 (CA4 1973) (EN
BANC) (EMPHASIS ADDED).  AND, I FUNDAMENTALLY DISAGREE WITH THE COURT'S
HOLDING THAT MERELY BY TRACKING THE STATUTORY "NO BENEFIT" LANGUAGE A
SENTENCING JUDGE CAN SATISFY THE "FINDING" REQUIREMENT OF 5010 (D).  I
WOULD REQUIRE THAT THE EXPLICIT "NO BENEFIT" FINDING BE ARGUMENTED BY A
STATEMENT OF THE REASONS FOR IMPOSING AN ADULT SENTENCE. 

        I 

I FIND NO BASIS IN EITHER THE LANGUAGE OR HISTORY OF THE YCA TO
SUPPORT THE COURT'S OBSERVATION THAT THE ACT WAS INTENDED TO "PRESERVE
UNFETTERED" THE DISCRETION OF THE SENTENCING JUDGE.  ANTE, AT 437.  THE
YCA WAS THE PRODUCT OF MORE THAN 10 YEARS OF STUDY BY VARIOUS GROUPS
AND WAS MODELED AFTER THE BRITISH BORSTAL SYSTEM, WHICH HAD ACHIEVED
SUBSTANTIAL SUCCESS IN REHABLILTATING YOUNG OFFENDERS.  /2/  THE
INITIAL LEGISLATIVE PROPOSAL, AND AMERICAN LAW INSTITUTE MODEL ACT,
REMOVED THE POWER TO SENTENCE ELIGIBLE OFFENDERS FROM THE TRIAL JUDGES
ALTOGETHER AND REPOSED THAT POWER IN A CORRECTIONAL AUTHORITY.  /3/
NOT SURPRISINGLY, THAT PROPOSAL BROUGHT SWIFT AND SHARP CRITICISM FROM
THE JUDGES WHOSE POWER WAS TO BE SHARPLY CURTAILED.  THE NEXT PROPOSAL,
BY THE JUDUCIAL CONFERENCE, INVOLVED SHARED SENTENCING POWERS BETWEEN
TRIAL JUDGES AND CORRECTIONAL AUTHORITIES.  /4/  IT MET WITH SIMILAR
CRITICISM.  THE 1949 PROPOSAL, WHICH WAS FINALLY ENACTED INTO LAW,
RETAINED SENTENCING POWER IN THE TRIAL JUDGE.  AS THE COURT TODAY
POINTS OUT, THE DRAFTERS OF THE ACT REPEATEDLY EMPHASIZED THAT THE
LEGISLATION "'DOES NOT INTERFERE WITH THE (SENTENCING) POWER OF THE
JUDGE . . .'"  ANTE, AT 437. 

BUT EVEN THE VERY FIRST JUDICIAL CONFERENCE PROPOSAL CONTAINED A
PROVISION SPECIFICALLY REQUIRING THE TRIAL JUDGE TO MAKE A FINDING THAT
A YOUTH OFFENDER WOULD NOT BENEFIT FROM TREATMENT AND SHOULD NOT BE
COMMITTED UNDER THE ACT, BEFORE SENTENCING HIM UNDER ANY OTHER PENALTY
PROVISIONS.  /5/  THIS FINDING REQUIREMENT WAS ADAPTED FROM THE SIMILAR
BORSTAL PROVISION WHICH DISALLOWS A SENTENCING COURT FROM "IMPOSING)
IMPRISONMENT ON A PERSON UNDER TWENTY-ONE YEARS OF AGE UNLESS . . NO
OTHER (BORSTAL) METHOD OF DEALING WITH HIM IS APPROPRIATE . . ."  /6/
THE FINDING REQUIREMENT OF THE JUDICIAL CONFERENCE DRAFT WAS NOT
SUBJECT TO THE SAME CRITICISM AS THE PROVISIONS WHICH ACTUALLY REMOVED,
RATHER THAN LIMITED, THE EXERCISE OF TRIAL JUDGES' SENTENCING
DISCRETION, AND THE FINDING REQUIREMENT WAS ULTIMATELY ENACTED INTO LAW
AS 5010 (D).  THE FINDING REQUIREMENT IS AN INTEGRAL PART OF THE YCA
SCHEME.  THE STATED PREMISE OF THE ACT IS THAT YOUNG PEOPLE BETWEEN THE
AGES OF 18 AND 22, ESPECIALLY, ARE PROMISING SUBJECTS FOR
REHABILITATION.  /7/  THE PURPOSE OF THE LEGISLATION WAS, FOR THOSE
OFFENDERS, TO "SUBSTITUTE FOR RETRIBUTIVE PUNISHMENT METHODS OF
TRAINING AND TREATMENT DESIGNED TO CORRECT AND PREVENT ANTISOCIAL
TENDENCIES.  IT DEPARTS FROM THE MERE PUNITIVE IDEA OF DEALING WITH
CRIMINALS AND LOOKS PRIMARILY TO THE OBJECTIVE IDEA OF
REHABILITATION."  H.R. REP. NO. 2979, 81ST CONG.,2D SESS., 3 (1950). 
/8/  IT IS CLEAR THAT FROM ITS VERY INCEPTION, THE YOUTH CORRECTIONS
PROGRAM WAS INTENDED TO ESTABLISH AMONG THE GOALS JUDGES COULD CONSIDER
IN SENTENCING ELIGIBLE OFFENDERS, ONE AS PARAMOUNT-- THAT OF
REHABILITATION.  /9/  AND, IN THIS LIMITED SENSE, THE SENTENCING
DISCRETION OF TRIAL JUDGES IS NECESSARILY CIRCUMSCRIBED IN REGARD TO
YOUTH OFFENDERS.  THE FINDING REQUIREMENT OF 5010 (D) EFFECTUATES THIS
POLICY BY PERMITTING ELIGIBLE OFFENDERS TO BE DEPRIVED OF THE
REHABILITATIVE TREATMENT PROVIDED UNDER THE ACT ONLY WHERS THEY WOULD
NOT BENEFIT THEREFROM. 

THE SENATE REPORT ACCOMPANYING THE BILL EXPLAINED THE CIRCUMSTANCES
UNDER WHICH ADULT SENTENCING WOULD BE PROPER: 

"IF . . . THE JUDGE IS CONVINCED THE YOUTH IS INCORRIGIBLE AND WOULD
DERIVE NO HELP FROM THE PROGRAM, HE MAY SENTENCE HIM UNDER ANY
APPLICABLE PROVISION OF LAW."  S. REP. NO. 1180, 82ST CONG., 1ST SESS.,
5 (1949).  OTHER ASPECTS OF THE LEGISLATIVE HISTORY UNDERSCORE
CONGRESS'  INTENTION THAT THE ACT PROVIDE A PREFERRED SENTENCING
ALTERNATIVE FOR ELIGIBLE OFFENDERS.  SENATOR KILGORE, ONE OF THE
SPONSORS OF THE LEGISLATION, OBSERVED THAT GIVEN THE REQUISITE FINDING
"ONLY ABOUT 10 PERCENT OF (ELIGIBLE OFFENDERS WOULD) EVENTUALLY HAVE TO
(BE) SENTENCED AS ADULTS), OR LESS."  HEARING ON S. 895 BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY, 78TH CONG., 1ST
SESS., 13 (1943).  THE HOUSE REPORT CONCLUDED THAT EVEN GIVEN THE
INSTANCES IN WHICH YCA REHABILITATIVE TREATMENT WOULD FAIL "MORE THAN
70 PERCENT (OF ELIGIBLE YOUTH OFFENDERS) CAN BE REHABILITATED" UNDER
THE ACT.  H.R. REP. NO. 2979, SUPRA, AT 10 (1950).  THE PANOPLY OF
TREATMENT OPTIONS  /10/  AVAILABLE UNDER THE ACT IS BUT FURTHER
EVIDENCE THAT THE YCA PROGRAM WAS INTENDED TO BE SUFFICIENTLY
COMPREHENSIVE TO DEAL WITH ALL BUT THE "INCORRIGIBLE" YOUTH. 

THIS CONGRESSIONAL INTENT FINDS CLEAR EXPRESSION IN THE WORDS OF THE
STATUTE.  SECTION 5010 (D) DOES NOT SAY THE SENTENCING COURT MUST
MERELY CONSIDER THE TREATMENT OPTION PROVIDED BY THE ACT; IT SAYS IN
THE MOST UNCOMPROMISING TERMS THAT THE COURT MUST FIND THE YOUTH "WILL
NOT BENEFIT" FROM YCA TREATMENT AS A PREREQUISITE TO IMPOSING AN ADULT
SENTENCE.  THE USE OF THE WORDS "SHALL FIND" EMPHASIZES THE MANDATORY
NATURE OF THAT FINDING.  THE SPECIFIC QUALITY OF THE FINDING IS
UNDERSCORED BY 5010 (E) WHICH PROVIDES FOR AN ELIGIBLE OFFENDER TO BE
TEMPORARILY COMMITTED FOR OBSERVATION AND STUDY FOR THE PURPOSE OF
PROVIDING THE SENTENCING COURT WITH A REPORT ON THE PARTICULAR QUESTION
DEFINED BY 5010 (D)--WHETHER THE YOUTH OFFENDER WOULD BENEFIT FROM
TREATMENT UNDER THE ACT.  /11/ 

THUS, WHILE THE ACT DOES NOT REMOVE A TRIAL JUDGE'S RESPONSIBILITY
OR DISCRETION FOR THE SENTENCING DETERMINATION, IT DOES PROVIDE A
PREFERRED DISPOSITION FOR ELIGIBLE OFFENDERS.  A SENTENCING JUDGE IS
NOT REQUIRED TO SENTENCE A YOUTH OFFENDER UNDER THE ACT; THE JUDGE CAN
STILL EXERCISE HIS "SOUND DISCRETION TO DENY SUCH REHABILITATIVE
TREATMENT TO THOSE YOUTHS IN THE EXCEPTIONAL CASES WHERE THE JUDGE
DETERMINES THAT THE SPECIAL YOUTH TREATMENT AFFORDED BY THE ACT WOULD
BE OF NO VALUE."  UNITED STATES V. WATERS, 141 U.S. APP. D.C. 289, 291,
437 F.2D 722, 724 (1970).  THE LEGISLATIVE HISTORY RELIED ON BY THE
COURT MERELY EMPHASIZES THIS POINT--THAT THE ACT WAS INTENDED TO BE
ANOTHER SENTENCING ALTERNATIVE AVAILABLE TO THE TRIAL JUDGE AND THAT
THE DECISION AS TO WHETHER IT SHOULD BE EMPLOYED IN A PARTICULAR CASE
REMAINS A DECISION COMMITTED TO HIS DISCRETION.  THAT HISTORY IS NOT,
HOWEVER, INCONSISTENT WITH WHAT SEEMS TO ME THE PLAIN MEANING OF THE
WORDS OF THE STATUTE--THAT THE SENTENCING JUDGE'S DISCRETION IS
CIRCUMSCRIBED BY THE AFFIRMATIVE FINDING REQUIREMENT OF 5010 (D).  /12/
THE YCA MUST BE USED IN SENTENCING A YOUTH UNLESS THE FACTS OF THE
INDIVIDUAL CASE MEET THE STATUTORY REQUIREMENT--UNLESS, IN THE LANGUAGE
OF 5010 (D), THE COURT FINDS THAT THE YOUTH OFFENDER WILL NOT DERIVE
BENEFIT FROM TREATMENT UNDER THE ACT.  /13/  COX V. UNITED STATAES, 473
F.2D, AT 337; UNITED STATES V. WATERS, 141 U.S. APP. D.C., AT 292 -
293, 437 F.2D, AT 725 - 726.  EVERY COURT OF APPEALS WHICH HAS
CONSIDERED THE ISSUE, EXCEPT THE COURT BELOW, HAS AGREED THAT MANNER IN
WHICH THE SENTENCING JUDGE EXERCISES HIS DISCRETION IS THUS LIMITED. 
BROOKS V. UNITED STATES, 497 F.2D 1059 (CA6 1974); UNITED STATES V.
KAYLOR, 491 F.2D 1133 (CA2 1974) (EN BANC); UNITED STATES V. SCHENKER,
486 F.2D 318 (CA5 1973); UNITED STATES V. COEFIELD, 155 U.S. APP. D.C.
205, 476 F.2D 1152 (1973 (EN BANC); COX V. UNITED STATES, SUPRA;
WILLIAMS V. UNITED STATES, 476 F.2D 970 (CA3 1973); SEE UNITED STATES
V. MACDONALD, 455 F.2D 1259, 1265 (CA 1 1972); /14/  CF. SMALL V.
UNITED STATES, 304 A.2D 641 (DC CT. APP. 1973). 

IN A SENSE, THE COURT TODAY ALSO RECOGNIZES THE INHERENT LIMITATION
ON THE JUDGE'S DISCRETION IMPOSED BY 5010 (D) BY REQUIRING AN EXPLICIT
"NO BENEFIT" FINDING AS A PREREQUISITE TO ADULT SENTENCING.  AS
CONCEIVED BY THE COURT, HOWEVER, THE REQUIRED "NO BENEFIT" FINDING IS
NO FINDING AT ALL, BUT MERELY A RITUALISTIC INVOCATION OF THE STATUTORY
LANGUAGE.  IN EXPLAINING WHY THE "NO BENEFIT" FINDING MUST BE,
EXPLICIT, THE COURT NOTES THAT "(TO HOLD THAT A 'NO BENEFIT' FINDING IS
IMPLICIT EACH TIME A SENTENCE UNDER THE ACT IS NOT CHOSEN WOULD RENDER
5010 (D) NUGATORY."  ANTE, AT 444.  DESPITE THESE PROTESTATIONS, THE
COURT TODAY RENDERS THE FINDING REQUIREMENT OF 5010(D) A NULLITY.  BY
HOLDING THAT THE ACT WAS INTENDED TO PRESERVE "THE UNFETTERED
SENTENCING DISCRETION OF FEDERAL DISTRICT JUDGES," ANTE, AT 437, AND
THAT SENTENCING JUDGES NEED ONLY HAVE "CONSIDERED THE OPTION OF
TREATMENT UNDER THE ACT AND REJECTED IT," ANTE, 443, THE COURT
EFFECTIVELY READS THE UNAMBIGUOUS MANDATE OF A "NO BENEFIT" FINDING OUT
OF THE ACT.  A MERE PARROTING OF THE STATUTORY LANGUAGE IS HARDLY AN
AFFIRMATIVE FINDING.  THE COURT'S OPINION SEEMS TO INDICATE THAT THE
SENTENCING JUDGE NEED NOT MEAN WHAT HE SAYS WHEM HE PRONOUNCES THE "NO
BENEFIT" LITANY.  ALTHOUGH THE COURT REQUIRES HIM TO GO THROUGH THE
CHARADE OF SAYING THAT THE OFFENDER WOULD NOT BENEFIT FROM TREATMENT
UNDER THE ACT, IT APPARENTLY DOES NOT REQUIRE THAT THE JUDGE ACTUALLY
FIND NO BENEFIT BUT ONLY THAT HE BE AWARE OF THE ACT AND REJECT IT.  I
THINK IT REMARKABLE THAT THIS COURT SHOULD APPROVE SUCH AN EMPTY AND
DUPLICITOUS RITUAL. 

        II 

IF THE COURT WERE TO HOLD THAT THE ACT LIMITED A TRIAL JUDGE'S
DISCRETION BY REQUIRING THAT HE ACTUALLY FIND A YOUTH OFFENDER WOULD
NOT BENEFIT FROM YCA TREATMENT BEFORE SENTENCING HIM AS AN ADULT, I
WOULD THINK THAT MORE THAN A MERE RECITATION OF THE CONCLUSORY FINDING
OF "NO BENEFIT" SHOULD BE REQUIRED.  TO SAY THAT SIMPLY INVOKING THE
WORDS OF THE STATUTE SATISFIES THE MANDATE OF 5010 (D) AFFORDS FAR TOO
LITTLE CREDENCE BOTH TO CONGRESS'  DEEP CONCERN FOR THE REHABILITATIVE
POTENTIAL OF YOUNG OFFENDERS AND TO ITS OBVIOUS INTENTION THAT ELIGIBLE
OFFENDERS BE SENTENCED UNDER THE ACT IF THEY WOULD BENEFIT FROM ITS
REHABILITATIVE PROGRAMS.  TO GIVE EFFECT TO THESE CONCERNS, I WOULD
REQUIRE THAT THE TRIAL JUDGE INCLUDE, ON THE RECORD, A STATEMENT WHICH
MAKES CLEAR THAT HE CONSIDERED THE PROVISIONS OF THE ACT, WEIGHED THE
TREATMENT OPTION AVAILABLE, AND DECIDED IN LIGHT OF HIS FAMILIARITY
WITH THE OFFENDER, THAT HE WOULD NOT DERIVE BENEFIT FROM TREATMENT
UNDER THE ACT.  /15/ 

THE MERE RECITATION OF THE "NO BENEFIT" LITANY CAN HARDLY BEAR THE
WEIGHT OF DEMONSTRATING SUCH COMPLIANCE.  BY TAKING THE UNUSUAL STEP OF
REQUIRING A SPECIFIC FINDING IN THIS LIMITED BUT HIGHLY IMPORTANT AREA
OF SENTENCING, CONGRESS MANDATED A REASONED DETERMINATION THAT THE
OFFENDER WOULD NOT BENEFIT FROM THE REHABILITATIVE TREATMENT AVAILABLE
UNDER THE ACT.  ACCORDINGLY, IN MY VIEW, A STATEMENT OF THE FACTORS
WHICH INFORMED AND SHAPED THE SENTENCING DECISION MUST ACCOMPANY THE
CONCLUSORY FINDING OF "NO BENEFIT" IF THAT CONGRESSIONAL PURPOSE IS TO
BE SERVED. 

THE BORSTAL SYSTEM, WHICH PROVIDED THE MODEL FOR THE YOUTH
CORRECTIONS SCHEME IN GENERAL AND THE REQUIREMENT OF 5010 (D) IN
PARTICULAR, ENVISIONS A TRIAL JUDGE STATING HIS REASONS FOR SENTENCING
AN ELIGIBLE OFFENDER AS AN ADULT.  /16/  SIMILARLY, MOST OF THE COURTS
OF APPEALS WHICH HAVE FACED THE ISSUE, HAVE REQUIRED A STATEMENT OF
REASONS AS A NECESSARY CONCOMITANT OF THE 5010 (D) FINDING.  A
UNANIMOUS EN BANC DECISION OF THE COURT OF APPEALS FOR THE SECOND
CIRCUIT AND A NEAR-UNANIMOUS EN BANC DECISION OF THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT  /17/  HAVE FOUND A STATEMENT OF
REASONS SUPPORTING THE "NO BENEFIT" FINDING TO BE "'ESSENTIAL TO A
KNOWLEDGEABLE ADMINISTRATION OF THE ACT . . .'"  UNITED STATES V.
KAYLOR, 491 F.2D, AT 1139; UNITED STATES V. COEFIELD, 155 U.S. APP.
D.C., AT 210, 476 F.2D, AT 1157.  THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT HAS, MORE RECENTLY, HELD THAT A STATEMENT OF REASONS
ACCOMPANYING ADULT SENTENCING IS "NECESSARY TO INSURE THAT THE
SENTENCING COURT . . . HAS DELIBERATELY CONSIDERED WHETHER A YOUTH
OFFENDER MAY BENEFIT FROM THE TREATMENT PROVIDED FOR IN THE ACT . . ." 
BROOKS V. UNITED STATES, 497 F.2D, AT 1063.  SIMILARLY, THE COURT OF
APPEALS FOR THE FOURTH CIRCUIT RECENTLY REMANDED A CASE FOR
CONSIDERATION OF WHETHER TREATMENT UNDER THE ACT WOULD BE BENEFICIAL TO
THE OFFENDER AND SPECIFICALLY ORDERED THE TRIAL JUDGE TO STATE THE
REASONS FOR HIS CONCLUSION.  COX V. UNITED STATES, 473 F.2DD, AT 337. 
IN FACT, THE COURT BELOW IS THE ONLY COURT OF APPEALS TO SPECIFICALLY
DISAVOW A REQUIREMENT OF REASONS FOR A 5010 (D) SENTENCE.  /18/ 
CONTRARY TO THE COURT'S ASSERTION THAT APPELLATE REVIEW IS THE ONLY
PURPOSE TO BE SERVED BY A STATEMENT OF REASONS, THAT REQUIREMENT SERVES
A NUMBER OF OTHER IMPORTANT POLICIES.  FIRST, IT MIGHT WELL CONTRIBUTE
TO RATIONALIZING THE SENTENCE.  ARTICULATING REASONS SHOULD ASSIST A
TRIAL JUDGE IN DEVELOPING FOR HIMSELF A CONSISTENT SET OF PRINCIPLES ON
WHICH TO BASE HIS SENTENCING DECISIONS.  REQUIRING "(SUCH A PROCEDURE
WOULD ENCOURAGE THE JUDGE TO CLARIFY AND JUSTIFY, IN HIS OWN MIND, THE
GROUNDS FOR THE SENTENCE HE CHOOSES.  AS A RESULT, SENTENCING DECISIONS
WOULD TEND, ON THE WHOLE, TO BE MORE CAREFULLY THOUGHT OUT."  UNITED
STATES V. VELAZQUEZ, 482 F.2D 139, 142 (CA2 1973); ACCORD, UNITED
STATES V. BROWN, 479 F.2D 1170, 1172 (CA2 1973). 

THE REASONS MAY ALSO BE OF USE TO CORRECTIONAL AUTHORITIES IN THEIR
HANDLING OF THE PRISONER AFTER SENTENCE.  THE KIND OF CORRECTIONAL AND
REHABILITATIVE TREATMENT AN OFFENDER RECEIVES SHOULD TAKE INTO ACCOUNT
THE REASONS FOR HIS SENTENCE. 

A DISCLOSURE OF REASONS MAY ALSO AID THE DEFENDANT'S COUNSEL TO
INSURE THAT THE SENTENCE IS NOT PREMISED ON MISINFORMATION OR
INACCURACIES IN THE MATERIAL UPON WHICH THE SENTENCING JUDGE RELIES. 
"A SPHINX-LIKE SILENCE ON THE COURT'S PART PRECLUDES ANYONE (INCLUDING
THE PARTIES, (AND) THE JUDGE . . .)  FROM LEARNING WHETHER HE ACTED IN
ERROR."  ID., AT 1173; CF. UNITED STATES V. TUCKER, 404 U.S. 443
(1972). 

MOREOVER, AN ARTICULATION OF REASONS MAY ACTUALLY CONTRIBUTE TO THE
OFFENDER'S REHABILITATION BY AVOIDING ANY FEELING THAT HIS SENTENCE WAS
ARBITRARY.  /19/  AS MR. JUSTICE (THEN JUDGE) STEWART OBSERVED: 

"JUSTICE IS MEASUSRED IN MANY WAYS, BUT TO A CONVICTED CRIMINAL ITS
SUREST MEASURE LIES IN THE FAIRNESS OF THE SENTENCE HE RECEIVES.  . .
IT IS AN ANOMALY THAT A JUDICIAL SYSTEM WHICH HAS DEVELOPED SO
SCRUPULOUS A CONCERN FOR THE PROTECTION OF A CRIMINAL DEFENDANT
THROUHOUT EVERY OTHER STAGE OF THE PROCEEDINGS AGAINST HIM SHOULD HAVE
SO NEGLECTED THIS IMPORTANT DIMENSION OF FUNDAMENTAL JUSTICE."  SHEPARD
V. UNITED STATES, 257 F.2D 293, 294 (CA6 1958).  IF REASONS WERE
ARTICULATED FOR THE SENTENCING DECISION, AN OFFENDER WOULD BE LESS APT
TO PERCEIVE HIS FATE AS BEING ARBITRARILY DETERMINED.  /20/  REASONED
DECISIONS MAY EVEN ENHANCE THE LEGITIMACY OF THE SENTENCING PROCESS AS
PERCEIVED BY THE GENERAL PUBLIC FOR, AS NOTED BY THE REPORT OF THE
AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE: 

"IT IS HARDLY COMMANDING OF PUBLIC RESPECT FOR OUR SYSTEM ON THE ONE
HAND TO INCREASE THE ALTERNATIVES OF THE SENTENCING JUDGE SO THAT HE
CAN SHAPE HIS SENTENCE TO FIT EACH CASE, AND ON THE OTHER HAND TO TAKE
THE POSITON THAT HE NEED NOT EXPLAIN WHY HE SELECTS A PARTICULAR
SENTENCE . . ."  /21/  ##HC457 

ALTHOUGH THESE CONSIDERATIONS APPLY TO SENTENCING DECISIONS
GENERALLY, /22/  I DO NOT MEAN TO SUGGEST THAT REASONS ARE REQUIRED IN
ANY OTHER SENTENCING CONTEXT.  CONTRARY TO THE MAJORITY'S ACCUSATIONS,
MY VIEW OF THE ACT DOES NOT REQUIRE WHOLESALE ABANDONMENT OF
"TRADITIONAL SENTENCING DOCTRINE."  ANTE, AT 440.  WE ARE CONCERNED
HERE WITH ONLY A LIMITED, ALBEIT IMPORTANT, AREA OF SENTENCING FOR
WHICH CONGRESS HAS ESTABLISHED SPECIAL RULES.  CONGRESS'  URGENT
CONCERN FOR THE REHABILITATIVE POTENTIAL OF YOUNG OFFENDERS AND THE
SPECIFIC FINDING REQUIREMENT OF 5010 (D) MAKE THE NEED FOR REASONS
PARTICULARLY COMPELLING IN THIS CONTEXT.  REQUIRING A STATEMENT OF
REASONS WOULD ENCOURAGE TRIAL JUDGES TO DIRECT THEIR ATTENTION TO THE
CRUCIAL QUESTIONS OF BENEFIT AND TREATMENT, TO TAKE A HARD LOOK AT THE
RELEVANT FACTORS, AND TO FOCUS ON VALUE JUDGMENTS INHERENT IN THEIR
SENTENCING DECISION.  SEE UNITED STATES V. PHILLIPS, 156 U.S. APP. D.C.
217, 479 F.2D 1200 (1973).  IT IS CLEARLY CONSONANT WITH THE ACT TO
REQUIRE SUCH REASONED CONSIDERATION.  I MUST AGREE WITH THE PERCEPTIVE
OBSERVATIONS OF SENIOR JUDGE FAHY OF THE DISTRICT OF COLUMBIA CIRCUIT
THAT REQUIRING A STATEMENT OF REASONS IS ESSENTIAL TO ASSURE: 

"FIRSTLY, THAT THE DISTRICT JUDGE MANIFEST NOT ONLY AN AWARENESS
THAT THE ACT IS APPLICABLE TO THE CASE, BUT ALSO AN ACCURATE
UNDERSTANDING OF THE SCOPE OF HIS DISCRETION UNDER THE ACT; SECONDLY,
THAT THE DISTRICT JUDGE HAS BEEN INFORMED OF THE PERTINENT FACTS
RELATING TO THE INDIVIDUAL DEFENDANT BEFORE HIM, EITHER BY EVIDENCE
COMING TO HIS ATTENTION IN THE TRIAL, BY A PRESENTENCE REPORT, OR BY A
RECOMMENDATION AND REPORT MADE UNDER SECTION 5010 (E); AND THIRDLY,
THAT THE DISTRICT JUDGE, BY HIS STATEMENT OF REASONS WHERE REQUIRED,
HAS GIVEN CONSIDERATION AND RELATED THE FACTS OF THE INDIVIDUAL CASE TO
THE APPLICABLE LAW."  UNITED STATES V. COEFIELD, 155 U.S. APP.  D.C.,
AT 210 - 211, 476 F.2D, AT 1157 - 1158 (FOOTNOTE OMITTED). 

TO SECURE THE EXPERT ASSISTANCE OF CORRECTIONAL AUTHORITIES IN
DETERMINING WHETHER AN ELIGIBLE OFFENDER WOULD BENEFIT FROM TREATMENT. 
I AGREE WITH THE TWO COURTS OF APPEALS WHICH HAVE PASSED ON THE ISSUE
THAT: 

"(WHEN A JUDGE HAS AVAILED HIMSELF OF THE ASSISTANCE AFFORDED THE
YOUTH OFFENDER COMMITTED . . . FOR OBSERVATION AND STUDY . . . AND THE
DIVISION HAS MADE ITS REPORT TO THE COURT, AND AFTER CONSIDERING THE
REPORT HAS FOLLOWED ITS FINDINGS OR RECOMMENDATION IN IMPOSING
SENTENCE, ADDITIONAL REASONS ARE NOT REQUIRED TO BE STATED, ALTHOUGH,
OF COURSE, THE JUDGE IS NOT PREVENTED FROM STATING HIS OWN REASONS." 
UNITED STATES V. KAYOLR, 491 F.2D, AT 1139.  ACCORD, UNITED STATES V.
COEFIELD, 155 U.S. APP. D.C. AT 210, 476 F.2D, AT 1157.  BUT THE ACT
CLEARLY INTENDED THAT THE ULTIMATE SENTENCING DECISION REMAIN WITH THE
TRIAL JUDGE.  THAT DECISION SHOULD NOT PASS BY ABDICATION TO THE
CORRECTIONAL AUTHORITIES WHO PREPARE THE 5010 (E) STUDY.  THUS, WHERE A
TRIAL JUDGE SECURES A 5010 (E) REPORT, HE SHOULD ADOPT ITS REASONS AS
HIS OWN ONLY AFTER ASSURING HIMSELF OF THE ADEQUACY OF THE REPORT AND
PROPRIETY OF ITS RECOMMENDATION.  /23/ 

I SEE NO REASON TO REACH HERE THE ISSUE OF APPELLATE REVIEW OF THE
DISTRICT COURT'S IMPOSITION OF AN ADULT SENTENCE.  I BELIEVE THAT THE
YOUTH CORRECTIONS ACT PROVIDES A PREFERRED-SENTENCING ALTERNATIVE WHICH
CAN ONLY BE ABANDONED ON THE BASIS OF A FINDING THAT AN ELIGABLE
OFFENDER WILL NOT BENEFIT FROM TREATMENT UNDER THE ACT.  THE DISTRICT
COURT IMPOSED SENTENCE ON THE ASSUMPTION THAT THE YCA WAS NOT A
PREFERRED DISPOSITION AND NO FINDING WAS REQUIRED.  THE COURT TODAY
FINDS THE DISTRICT COURT'S SENTENCE INVALID ONLY FOR FAILURE TO MAKE
THE REQUIRED "NO BENEFIT" FINDING.  UNDER EITHER THE COURT'S VIEW OR MY
OWN, THE APPELLATE-REVIEW QUESTION IS CLEARLY NOT YET PRESENTED BY THIS
CASE.  /24/ 

ACCORDINGLY, I CONCUR IN THE JUDGMENT OF THE COURT INSOFAR AS IT
REVERSES AND REMANDS BECAUSE THE DISTRICT COURT FAILED TO MAKE THE
REQUISITE "NO BENEFIT" FINDING.  I DISAGREE, HOWEVER, WITH THE OPINION
OF THE COURT INSOFAR AS IT SUGGEST THAT A MERELY CONCLUSORY STATEMENT
OF "NO BENEFIT" SATISFIES THE STATUTORY REQUIREMENT AND INSOFAR AS IT
PURPORTS TO PASS, ALBEIT IN DICTA, ON THE QUESTION OF APPELLATE REVIEW
OF A 5010 (D) ADULT SENTENCE, AN ISSUE NOT BEFORE THIS COURT. 

/1/  THE ACTUAL DURATION OF THE TREATMENT PERIOD IS DETERMINED BY
THE YOUTH CORRECTION AUTHORITIES.  18 U.S.C. 5017. 

/2/  H.R. REP. NO. 2979, 81ST CONG., 2D SESS., 3 - 6 (1950). 

/3/  ALI, MODEL YOUTH CORRECTION AUTHORITY ACT 13 AND 30 (OFFICIAL
DRAFT 1940); ID., COMMENT, AT 35 - 36. 

/4/  H.R. 2140, TIT. II, 3, 78TH CONG., 1ST SESS. (1943). 

/5/  ID., TIT. III, 1 (C). 

/6/  CRIMINAL JUSTICE ACT OF 1948, 17 (2), 11 & 12 GEO. 6, C.58. 

/7/  H.R. REP. NO. 2979, SUPRA, AT 1- 4. 

/8/  ALTHOUGH THE REHABILITATIVE MODEL OF CORRECTIONS HAS RECENTLY
BEEN SUBJECT TO CRITICISM, THE FACT REMAINS THAT CONGRESS ESTABLISHED A
CLEAR PREFERENCE FOR THE OBJECTIVE OF REHABILITATION IN ENACTING THE
YCA. 

/9/  SEE, E.G., UNITED STATES V. KAYLOR, 491 F.2D 1133, 1136 (CA2
1974) (EN BANC); UNITED STATES V. WATERS, 141 U.S. APP. D.C. 289, 293,
437 F.2D 722, 726 (1970); CARTER V. UNITED STATES, 113 U.S. APP. D.C.
123, 125, 306 F.2D 283, 285 (1962). 

/10/  EMULATING THE BORSTAL SYSTEM, CONGRESS AUTHORIZED A
COMPREHENSIVE YOUTH CORRECTIONS SYSTEM, MAKING A WIDE RANGE OF
TREATMENT OPTIONS AVAILABLE TO YOUTH OFFENDERS.  IT MANDATED THAT
MAXIMUM, MEDIUM, AND MIMIMUM SECURITY INSTITUTIONS BE UTILIZED, 18
U.S.C.  5011, THAT LONG-AND SHORT-TERM TREATMENT BE PROVIDED, COMPARE
18 U.S.C. 5010 (B) WITH 18 U.S.C. 5010 (C), AND THAT A WIDE RANGE OF
TREATMENT SERVICES BE AVAILABLE.  18 U.S.C. 5011, 5015. 

/11/  IF THE COURT DESIRES ADDITIONAL INFORMATION AS TO WHETHER A
YOUTH OFFENDER WILL DERIVE BENEFIT FROM TREATMENT UNDER SUBSECTION (B)
OR (C) IT MAY ORDER THAT HE BE COMMITTED TO THE CUSTODY OF THE ATTORNEY
GENERAL FOR OBSERVATION AND STUDY AT AN APPROPRIATE CLASSIFICATION
CENTER OR AGENCY.  WITHIN SIXTY DAYS FROM THE DATE OF THE ORDER, OR
SUCH ADDITIONAL PERIOD AS THE COURT MAY GRANT, THE DIVISION SHALL
REPORT TO THE COURT ITS FINDINGS."  18 U.S.C. 5010 (E) (EMPHASIS
ADDED). 

/12/  AN UNSUCCESSFUL EFFORT TO REMOVE THESE BONDS ON THE DISCRETION
OF SENTENCING JUDGES WAS MADE IN 1972, WHEN A BILL WAS INTRODUCED TO
AMEND 18 U.S.C. 5010 (D) TO PROVIDE THAT: 

"NOTHING IN THIS CHAPTER SHALL BE CONSTRUED TO PRECLUDE THE COURT,
IN ANY CASE, FROM SENTENCING A YOUTH OFFENDER UNDER ANY OTHER
APPLICABLE PENALTY PROVISION."  S.3290, 92ND CONG., 2D SESS. (1972);
SEE 118 CONG. REC. 6776 - 6788 (1972).  THE PROPOSED AMENDMENT WAS NOT
ENACTED. 

/13/  THE REQUIREMENT OF A POSITIVE FINDING OF "NO BENEFIT" TO
SUPPORT AN ADULT SENTENCE UNDER 5010 (D) IS MERELY THE OBVERSE OF THE
REQUIREMENT OF 18 U.S.C. 4209 THAT AS A PREQUISITE TO YOUNG ADULT
OFFENDER SENTENCING THE SENTENCING "COURT FINDS THAT THERE IS
REASONABLE GROUNDS TO BELIEVE THAT THE DEFENDANT WILL BENEFIT FROM
(SUCH) TREATMENT . . ."  SEE UNITED STATES V. KAYLOR, 491 F.2D, AT
1137. 

/14/  SUBSEQUENTLY IN UNITED STATES V. WALKER, 469 F.2D 1377 (1972),
THE COURT OF APPEALS FOR THE FIRST CIRCUIT AGREED THAT THE ACT
PRECLUDED ADULT SENTENCING WHERE THE OFFENDER WOULD DERIVE BENEFIT FROM
TREATMENT UNDER THE ACT, BUT FOUND IT CLEAR FROM THE NATURE OF THE
OFFENSES INVOLVED THAT THE DEFENDANT HAD NO ANTISOCIAL TENDENCIES TO BE
CORRECTED, HENCE NO BENEFIT TO BE DERIVED FROM YCA TREATMENT.  ID., AT
1381 N.4. 

/15/  SEE BROOKS V. UNITED STATES, 497 F.2D 1059, 1062 - 1063 (CA6
1974); UNITED STATES V. KAYLOR, 491 F.2D, AT 1139; UNITED STATES V.
COEFIELD, 155 U.S. APP. D.C. 205, 210 - 211, 476 F.2D 1152, 1157 - 1158
(1973) (EN BANC). 

/16/  CRIMINAL JUSTICE ACT OF 1948, 17 (3), 11 & 12 GEO. 6, C. 58. 
THE COURT ASSERTS, ANTE, AT 440 N. 14, THAT THE REFERENCE TO THE
ENGLISH BORSTAL SYSTEM MADE IN DRAFTING THE ACT "DID NOT INCLUDE THE
ENGLISH VIEW OF THE TRIAL COURT'S DISCRETION TO MAKE USE OF THAT
SYSTEM."  TO SUPPORT THIS CLAIM, THE COURT RELIES ON TWO GENERAL
DESCRIPTIONS OF AMERICAN SENTENCING PROCEDURES MADE A DECADE AFTER
ENACTMENT OF THE LEGISLATION.  THOSE COMMENTS WERE NOT DIRECTED TO THE
ADMINISTRATION OF THE YCA, HENCE THEIR VALIDITY AS INDICIA OF
CONGRESSIONAL INTENT IN THIS LIMITED CONTEXT IS QUESTIONABLE AT BEST. 

ON THE OTHER HAND, THERE IS CONSIDERABLE EVIDENCE THAT THE BORSTAL
SYSTEM DID, IN FACT, PROVIDE A MODEL ON THE QUESTION OF THE TRIAL
COURT'S SENTENCING DISCRETION, NOT THE LEAST OF WHICH IS THE MARKED
SIMILARITY BETWEEN 18 U.S.C. 5010 (D) AND THE CRIMINAL JUSTICE ACT OF
1948, 17 (2), 11 & 12 GEO. 6, C. 58, BOTH OF WHICH REQUIRE A NO BENEFIT
FINDING AS A PREREQUISITE TO ADULT SENTENCING. 

/17/  ONLY JUDGE MACKINNON, OF THE 10 PARTICIPATING JUDGES ON THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, DISSENTED FROM
THAT COURT'S EN BANC DECISION IN COEFIELD, SUPRA. 

/18/  THE FIRST CIRCUIT IN UNITED STATES V. MACDONALD, 455 F.2D
1259, 1265 (1972), REMANDED A CASE TO THE DISTRICT COURT "TO MAKE THE
FINDINGS REQUIRED BY THE FEDERAL YOUTH CORRECTIONS ACT," LEAVING
UNCLEAR WHETHER THOSE FINDINGS ENCOMPASSED A STATEMENT OF REASONS.  THE
THIRD CIRCUIT SPECIFICALLY RESERVED THE ISSUE IN WILLIAMS V. UNITED
STATES, 476 F.2D 970 (1973).  THE FIFTH CIRCUIT, IN ITS ONLY CASE ON
THE ISSUE, REMANDED FOR APPROPRIATE FINDINGS UNDER 5010 (D) WITHOUT
EXPLANATION AS TO WHETHER AN ULTIMATE FINDING OF NO BENEFIT WAS ALONE
SUFFICIENT.  UNITED STATES V. SCHENKER, 486 F.2D 318 (1973).  A CASE
SPECIFICALLY DEALING WITH THE REASONS REQUIREMENT, HOYT V. UNITED
STATES, NO. 73 - 2435, IS PRESENTLY PENDING BEFORE THE FIFTH CIRCUIT. 
THE NINTH CIRCUIT CALLED FORAN EXPRESS NO-BENEFIT FINDING BUT HAS NOT
FACED THE QUESTION OF WHETHER REASONS ARE REQUIRED IN SUPPORT THEREOF. 
UNITED STATES V. JARRATT, 471 F.2D 226 (1972). 

/19/  A LEADING FEDERAL DISTRICT JUDGE HAS OBSERVED THAT "(THE
ABSENCE OF ANY EXPLANATION OR PURPORTED JUSTIFICATION FOR THE SENTENCE
IS AMONG THE MORE FAMILIAR AND UNDERSTANDABLE SOURCES OF BITTERNESS
AMONG PEOPLE IN PRISON."  M. FRANKEL, CRIMINAL SENTENCES, LAW WITHOUT
ORDER 42 - 43 (1972). 

/20/  THERE MAY, OF COURSE, BE CIRCUMSTANCES IN WHICH IT WOULD NOT
BE ADVISABLE TO STATE THE REASONS UNDERLYING IMPOSITION OF A PARTICULAR
SENTENCE IN THE PRESENCE OF THE DEFENDANT, IN WHICH CASE THOSE REASONS
COULD INSTEAD BE COMMITTED TO WRITING AND MADE PART OF THE RECORD. 

/21/  AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, APPELLATE REVIEW OF SENTENCES 2 -3 (APPROVED DRAFT 1968). 
/22/  FOR A GENERAL DISCUSSION OF THE VALUE OF A STATEMENT OF THE
REASONS UNDERLYING THE IMPOSITION OF SENTENCE, SEE UNITED STATES V.
PHILLIPS, 156 U.S. APP. D.C. 217, 479 F.2D 1200 (1973); UNITED STATES
V. VELAZQUEZ, 482 F.2D 139, 142 (CA2 1973); UNITED STATES V. BROWN, 479
F.2D 1170, 1172 (CA2 1973); AMERICAN BAR ASSOCIATION PROJECT ON
STANDARDS FOR CRIMINAL JUSTICE, SENTENCING ALTERNATIVES AND PROCEDURES
5.6 (II) AND COMMENTARY (B), PP. 270 - 271 (APPROVED DRAFT 1968); ID.,
APPELLATE REVIEW OF SENTENCES 2.3 (C) AND COMMENTARY (E), PP. 45 - 47
(APPROVED DRAFT 1968); M. FRANKEL, CRIMINAL SENTENCES, LAW WITHOUT
ORDER 39 - 49 (1972); R. GOLDFARB & L. SINGER, AFTER CONVICTION 191 -
195 (1973); WYZANSKI, A TRIAL JUDGE'S FREEDOM AND RESPONSIBILITY, 65
HARV. L. REV. 1281, 1292 - 1293 (1952); YOUNGDAHL, REMARKS OPENING THE
SENTENCING INSTITUTE PROGRAM, 35 F. R. D. 387, 388 (1964); CF. NORTH
CAROLINA V. PEARCE, 395 U.S. 711, 726 (1969); KENT V. UNITED STATES,
383 U.S. 541, 561 (1966). 

/23/  SEE, E. G., UNITED STATES V. NORCOME, 375 F. SUPP. 270 (DC
1974); UNITED STATES V. TILLMAN, 374 F. SUPP. 215 (DC 1974). 

/24/  RESPONDENT AGREES THAT SHOULD THIS COURT DETERMINE THAT THE
YCA PROVIDES A PREFERRED-SENTENCING ALTERNATIVE FOR ELIGIBLE OFFENDERS,
THEN THE COURT NEED NOT REACH IN THIS CASE THE ISSUE OF APPELLATE
REVIEW SINCE THE DISTRICT COURT NEVER CONSIDERED ITSELF BOUND BY SUCH A
STANDARD.  BRIEF FOR UNITED STATES 40 - 41. 

ROBERT H. FRIEBERT, BY APPOINTMENT OF THE COURT, 414 U.S. 1142,
ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

GERALD P. NORTON ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
PETERSEN, DEPUTY SOLICITOR GENERAL FREY, JEROME M. FEIT, AND JOSEPH S.
DAVIES, JR.  /1/ 

/1/  PATRICIA M. WALD, DANIEL A. REZNECK, JAMES F. FLUG, ROBERT
PLOTKIN, AND ALVIN J. BRONSTEIN FILED BRIEFS FOR THE NATIONAL LEGAL AID
AND DEFENDER ASSN. ET AL. AS AMICI CURIAE URGING REVERSAL. 
..END :























WINGO V. WEDDING, 418 U.S. 461 


       WINGO, WARDEN V. WEDDING

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 846.  ARGUED APRIL 22, 1974--DECIDED JUNE 26,
1974;

           483 F.2D 1131, AFFIRMED. 


    FOLLOWING ENACTMENT OF THE FEDERAL MAGISTRATES ACT, THE UNITED

  STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

  AMENDED ITS LOCAL RULE 16 TO PROVIDE THAT IN ADDITION TO

  SUBMITTING SUCH OTHER REPORTS AND RECOMMENDATIONS AS MAY BE

  REQUIRED CONCERNING PETITIONS FOR WRITS OF HABEAS CORPUS FROM

  STATE PRISONERS THE FULL-TIME MAGISTRATE SHALL "SCHEDULE AND HEAR

  EVIDENTIARY MATTERS . . . (TO BE ELECTRONICALLY RECORDED) DEEMED

  BY THE MAGISTRATE TO BE NECESSARY AND PROPER IN THE DETERMINATION

  OF . . . SUCH PETITION, AND TO REPORT THEREON WITH AN APPROPRIATE

  RECOMMENDATION FOR THE DISPOSITION THEREOF TO THE DISTRICT JUDGE

  (WHO) . . . (UPON . . . REQUEST . . . SHALL PROCEED TO HEAR THE

  RECORDING OF THE TESTIMONY . . . AND GIVE IT DE NOVO

  CONSIDERATION."  RESPONDENT, A STATE PRISONER, WHOSE PETITION FOR

  HABEAS CORPUS WAS ASSIGNED TO A FULL-TIME MAGISTRATE FOR

  PROCESSING, CLAIMED THAT THE RULE IS INVALID AND FILED A MOTION

  WITH THE DISTRICT COURT THAT THE MAGISTRATE BE DISQUALIFIED FROM

  HOLDING THE HABEAS CORPUS HEARING AND THAT THE HEARING BE

  ASSGINED TO A DISTRICT JUDGE.  THE DISTRICT COURT DENIED THE

  MOTION; THE MAGISTRATE PROCEEDED WITH THE HEARING; AND THEREAFTER

HE TRANSMITTED THE ELECTRONIC RECORDING TO THE DISTRICT COURT

  ALONG WITH HIS WRITTEN FINDINGS AND CONCLUSIONS RECOMMENDING

  DISMISSAL.  THE DISTRICT COURT, FOLLOWING RESPONDENT'S MOTION FOR

  A DE NOVE HEARING, LISTENED TO THE RECORDING, ON THE BASIS OF

  WHICH, TOGETHER WITH THE MAGISTRATE'S FINDINGS AND CONCLUSIONS,

  IT DISMISSED THE PETITION.  THE COURT OF APPEALS REVERSED,

  HOLDING THAT, NOTWITHSTANDING A FORMAL REVISION OF THE HABEAS

  CORPUS STATUTE, 28 U.S.C. 2243, THE CONSTRUCTION OF THE

  PREDECESSOR STATUTE GIVEN IN HOLIDAY V. JOHNSON, 313 U.S. 342,

  STILL APLIED, TO THE EFFECT THAT THE STATUTE PLAINLY ACCORDED A

  PRISONER SEEKING HABEAS CORPUS RELIEF THE RIGHT OF TESTIFYING

 BEFORE A JUDGE.  HELD: 

     1. TITLE 28 U.S.C. 2243, LIKE ITS PREDECESSOR, REV. STAT. 761,

  REQUIRES THAT THE DISTRICT JUDGE PERSONALLY CONDUCT EVIDENTIARY

  HEARINGS IN FEDERAL HABEAS CORPUS CASES.  HOLIDAY V. JOHNSON,

  SUPRA; UNITED STATES V. HAYMAN, 342 U.S. 205, 231 N. 16; BROWN V.

  ALLEN, 344 U.S. 443, 462 - 463.  PP. 468 - 469. 

2.  IT IS CLEAR FROM THE TEXT AND LEGISLATIVE HISTORY OF THE

  MAGISTRATES ACT THAT CONGRESS DID NOT INTEND TO ALTER THE

  REQUIREMENTS OF 28 U.S.C. 2243, AND THEREFORE LOCAL RULE 16,

  INSOFAR AS IT AUTHORIZES THE FULL-TIME MAGISTRATE TO HOLD HABEAS

  CORPUS EVIDENTIARY HEARINGS, IS INVALID BECAUSE IT IS

  "INCONSISTENT WITH THE . . . LAWS OF THE UNITED STATES" UNDER 636

  (B) OF THE ACT, AND BECAUSE 636 (B) ITSELF PRECLUDES A DISTRICT

  JUDGE FROM ASSIGNING A MAGISTRATE THE DUTY OF CONDUCTING AN

  EVIDENTIARY HEARING AND LIMITS THE MAGISTRATE'S REVIEW TO

  PROPOSING, NOT HOLDING, SUCH A HEARING.  PP. 469 - 473. 

     3. THE INVALIDITY OF LOCAL RULE 16 IS NOT CURED BY THE

  PROCEDURE RELATING TO ELECTRONIC RECORDING, WHICH DOES NOT ENABLE

  THE DISTRICT JUDGE TO EVALUATE CREDIBILITY BY PERSONALLY HEARING

 AND OBSERVING THE WITNESSES.  PP. 473 - 474 

     BRENNAN J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, STEWART, MARSHALL, BLACKMUN, POWELL, AND REHNQUIST, JJ.,

  JOINED.  BURGER, C.J., FILED A DISSENTING OPINION, IN WHICH

  WHITE, J., JOINED, POST, P. 474. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER FEDERAL MAGISTRATES ARE AUTHORIZED TO
CONDUCT EVIDENTIARY HEARINGS IN FEDERAL HABEAS CORPUS CASES.  IN 1968,
CONGRESS ENACTED THE FEDERAL MAGISTRATES ACT, 28 U.S.C. 631 - 639, TO
UPGRADE AND EXPAND THE FORMER UNITED STATES COMMISSIONER SYSTEM.  THE
ACT AUTHORIZES MAGISTRATES TO EXERCISE ALL POWERS FORMERLY EXERCISED BY
UNITED STATES COMMISSIONERS, /1/  AND ALSO, AS A MEANS OF RELIEVING THE
CASELOAD BURDEN OF THE FEDERAL DISTRICT JUDGES, EMPOWERS MAGISTRATES TO
TRY MINOR OFFENSES WHEN ALL PARTIES CONSENT, /2/  AND TO PERFORM SUCH
ADDITIONAL DUTIES ASSIGNED BY THE DISTRICT COURT AS ARE "NOT
INCONSISTENT WITH THE CONSTITUTION AND LAWS OF THE UNITED STATES."  /3/
PURSUANT TO THE ACT, THE JUDGES OF THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY AMENDED LOCAL RULE 16 OF THAT
COURT TO PROVIDE: 

     "IN ADDITION TO SUBMITTING SUCH OTHER REPORTS AND

  RECOMMENDATIONS AS MAY BE REQUIRED CONCERNING PETITIONS FOR WRITS

  OF HABEAS CORPUS FROM STATE PRISONERS THE FULL-TIME MAGISTRATE IS

  DIRECTED TO SCHEDULE AND HEAR EVIDENTIARY MATTERS DEEMED BY THE

MAGISTRATE TO BE NECESSARY AND PROPER IN THE DETERMINATION OF

  EACH SUCH PETITION, AND TO REPORT THEREON WITH AN APPROPRIATE

  RECOMMENDATION FOR THE DISPOSTION THEREOF TO THE DISTRICT JUDGE

  HAVING JURISDICTION OF THE CASE.  THE MAGISTRATE SHALL CAUSE THE

  TESTIMONY OF SUCH HEARING TO BE RECORDED ON SUITABLE ELECTRONIC

  SOUND RECORDING EQUIPMENT.  HE SHALL SUBMIT HIS PROPOSED FINDINGS

  OF FACT AND CONCLUSIONS OF LAW TO THE PROPER JUDGE FOR HIS

  CONSIDERATION, COPIES OF WHICH SHALL BE PROVIDED AT THAT TIME TO

  THE PETITIONER AND RESPONDENT, AND THE MAGISTRATE SHALL

  EXPEDITIOUSLY TRANSMIT THE PROCEEDINGS, INCLUDING THE RECORDING

  OF THE TESTIMONY, TO THE PROPER DISTRICT JUDGE.  UPON WRITTEN

  REQUEST OF EITHER PARTY, FILED WITHIN TEN DAYS FROM THE DATE SUCH

  IS SO TRANSMITTED TO THE DISTRICT JUDGE HAVING JURISDICTION

  THEREOF, THE DISTRICT JUDGE SHALL PROCEED TO HEAR THE RECORDING

  OF THE TESTIMONY GIVEN AT THE EVIDENTIARY HEARING AND GIVE IT DE

  NOVO CONSIDERATION." 

     ##HC464 

RESPONDENT IS A STATE PRISONER WHOSE PETITION FOR FEDERAL HABEAS
CORPUS RELIEF WAS ASSIGNED BY THE DISTRICT COURT TO A FULL-TIME
MAGISTRATE FOR PROCESSING UNDER THE RULE.  THE PART OF THE RULE
CHALLENGED HERE IS THAT WHICH DIRECTS THE FULL-TIME MAGISTRATE "TO
SCHEDULE AND HEAR EVIDENTIARY MATTERS (TO BE ELECTRONICALLY RECORDED)
DEEMED BY THE MAGISTRATE TO BE NECESSARY AND PROPER IN THE
DETERMINATION OF . . . SUCH PETITION, AND TO REPORT THEREON WITH AN
APPROPRIATE RECOMMENDATION FOR THE DISPOSITION THEREOF TO THE DISTRICT
JUDGE (WHO) . .  (UPON.  . . REQUEST SHALL PROCEED TO HEAR THE
RECORDING OF THE TESTIMONY . . . AND GIVE IT DE NOVO CONSIDERATION." 
THE QUESTION IS WHETHER THIS PORTION OF THE RULE IS INVALID BECAUSE
"INCONSISTENT WITH THE . . . LAWS OF THE UNITED STATES" WITHIN THE
MEANING OF THE FEDERAL MAGISTRATES ACT, 28 U.S.C. 636 (B), OR BECAUSE
636 (B) ITSELF SHOULD BE CONSTRUED TO PROCLUDE DISTRICT COURTS FROM
ASSIGNING SUCH DUTIES TO MAGISTRATES. 

 I 

RESPONDENT, CARL JAMES WEDDING, IS A PROSIONER IN THE KENTUCKY STATE
PENITENTIARY SERVING A LIFE SENTENCE IMPOSED IN 1949 BY THE WEBSTER
CIRCUIT COURT, COMMONWEALTH OF KENTUCKY, AFTER A PLEA OF GUILTY TO A
CHARGE OF WILLFUL MURDER.  WEDDING FILED THIS PETITION FOR HABEAS
CORPUS IN 1971.  AFTER THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
REVERSED THE INITIAL DISMISSAL OF HIS PETITION, 456 F.2D 245 (1972),
AND REMANDED FOR AN EVIDENTIARY HEARING, THE DISTRICT COURT INVOKED
LOCAL RULE 16 AND ASSIGNED THE CASE TO A FULL-TIME MAGISTRATE TO HOLD
THE HEARING.  WEDDING PROMPTLY MOVED THAT THE MAGISTRATE BE
DISQUALIFIED AND THE HEARING BE REASSIGNED TO A DISTRICT JUDGE, ON THE
GROUND THAT THE FEDERAL MAGISTRATES ACT DID NOT AUTHORIZE DISTRICT
COURT TO ASSIGN TO MAGISTRATES THE DUTY TO HOLD HABEAS CORPUS
EVIDENTIARY HEARINGS.  WHEN THE DISTRICT COURT DENIED THE MOTION, THE
MAGISTRATE PROCEEDED WITH THE HEARING, AND ELECTRONICALLY RECORDED ALL
TESTIMONIAL EVIDENCE AS REQUIRED BY LOCAL RULE 16.  THEREAFTER, THE
MAGISTRATE TRANSMITTED THE RECORDING OF THE TESTIMONY TO THE DISTRICT
JUDGE AND SUBMITTED WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW
RECOMMENDING THAT THE PETITION BE DISMISSED. 

WEDDING MOVED THAT THE DISTRICT COURT GIVE THE MATTER A DE NOVO
HEARING.  THE DISTRICT JUDGE'S RESPONSE WAS TO LISTEN, AS AUTHORIZED BY
LOCAL RULE 16, TO THE RECORDING OF THE HEARING BEFORE THE MAGISTRATE. 
ON THIS BASIS AND THE MAGISTRATE'S FINDINGS AND CONCLUSIONS, THE
DISTRICT COURT ENTERED AN ORDER DISMISSING RESPONDENT'S PETITION. 

ON APPEAL, WEDDING RENEWED HIS CHALLENGE TO LOCAL RULE 16, RELYING
UPON HOLIDAY V. JOHNSON, 313 U.S. 342 (1941).  HOLIDAY WAS ALSO A
FEDERAL HABEAS CORPUS CASE.  THERE, AFTER DETERMINING THAT THE PETITION
FOR WRIT OF HABEAS CORPUS ALLEGED FACTS WHICH, IF PROVED, WOULD ENTITLE
THE PETITIONER TO RELIEF, THE DISTRICT JUDGE ISSUED A WRIT COMPELLING
THE RESPONDENT TO PRODUCE THE PETITIONER BEFORE A DESIGNATED UNITED
STATES COMMISSIONER.  THE COMMISSIONER HELD AN EVIDENTIARY HEARING AT
WHICH THE PETITIONER TESTIFIED AND THE RESPONDENT SUBMITTED THE
DEPOSITIONS OF TWO WITNESSES.  ON THE BASIS OF THE EVIDENCE RECEIVED,
THE COMMISSIONER MADE FINDINGS OF FACT AND STATED CONCLUSIONS OF LAW
RECOMMENDING THAT THE WRIT BE DENIED.  AFTER HEARING ORAL ARGUMENT ON
THE COMMISSIONER'S REPORT, THE DISTRICT JUDGE ENTERED AN ORDER
DISCHARGING THE WRIT. 

THIS COURT REVERSED, HOLDING THAT THE FACTFINDING PROCEDURE EMPLOYED
FAILED TO CONFORM TO CONGRESS' EXPRESS COMMAND IN THE HABEAS CORPUS ACT
THAT "(THE COURT, OR JUSTICE, OR JUDGE SHALL PROCEED IN A SUMMARY WAY
TO DETERMINE THE FACTS OF THE CASE, BY HEARING THE TESTIMONY AND
ARGUMENTS, AND THEREUPON TO DISPOSE OF THE PARTY AS LAW AND JUSTICE
REQUIRE."  REV. STAT. 761, 28 U.S.C. 461 (1940 ED.)  (EMPHASIS ADDED). 
THE COURT HELD THAT THE STATUTE PLAINLY ACCORDS A PRISONER THE RIGHT OF
TESTIFYING BEFORE A JUDGE, STATING: 

"ONE OF THE ESSENTIAL ELEMENTS OF THE DETERMINATION OF THE CRUCIAL
FACTS IS THE WEIGHING AND APPRAISING OF THE TESTIMONY.  PLAINLY IT WAS
INTENDED THAT THE PRISONER MIGHT INVOKE THE EXERCISE OF THIS APPRAISAL
BY THE JUDGE HIMSELF.  WE CONNOT SAY THAT AN APPRAISAL OF THE TRUTH OF
THE PRISONER'S ORAL TESTIMONY BY A MASTER OR COMMISSIONER, IS IN THE
LIGHT OF THE PURPOSE AND OBJECT OF THE PROCEEDING, THE EQUIVALENT OF
THE JUDGE'S OWN EXERCISE OF THE FUNCTION OF THE TRIER OF THE FACTS. 

     *         *         *         *      * 

"THE DISTRICT JUDGE SHOULD HIMSELF HAVE HEARD THE PRISONER'S
TESTIMONY AND, IN THE LIGHT OF IT AND THE OTHER TESTIMONY, HIMSELF HAVE
FOUND THE FACTS AND BASED HIS DISPOSITION OF THE CAUSE UPON HIS
FINDINGS."  HOLIDAY V. JOHNSON, SUPRA, AT 352, 353 - 354. 

WEDDING CONTENCED THAT NEITHER THE TEXT NOR LEGISLATIVE HISTORY OF
THE FEDERAL MAGISTRATES ACT EVIDENCES A CONGRESSIONAL INTENT TO
OVERRULE HOLIDAY.  THE COURT OF APPEALS AGREED AND ACCORDINGLY
"VACATED) THE JUDGMENT OF DISMISSAL AND REMANDED) THE CASE WITH
INSTRUCTIONS THAT THE (DISTRICT) COURT ITSELF HOLD AN EVIDENTIARY
HEARING ON (WEDDING'S) CONSTITUTIONAL CLAIMS."  483 F.2D 1131, 1137
(CA6 1973).  WE GRANTED CERTIORARI, 414 U.S. 1157 (1974).  WE AFFIRM. 
/4/

        II 

UNDER OUR CONSTITUTIONAL FRAMEWORK, THE "GREAT CONSTITUTIONAL
PRIVILEGE" OF HABEAS CORPUS, EX PARTE BOLLMAN 4 CRANCH 75, 95 (1807)
(MARSHALL, C. J.), HAS HISTORICALLY PROVIDED "A PROMPT AND EFFICACIOUS
REMEDY FOR WHATEVER SOCIETY DEEMS TO BE INTOLERABLE RESTRAINTS.  ITS
ROOT PRINCIPLE IS THAT IN A CIVILIZED SOCIETY, GOVERMENT MUST ALWAYS BE
ACCOUNTABLE TO THE JUDICIARY FOR A MAN'S IMPRISONMENT:  IF THE
IMPRISONMENT CANNOT BE SHOWN TO CONFORM WITH THE FUNDAMENTAL
REQUIREMENTS OF LAW, THE INDIVIDUAL IS ENTITLED TO HIS IMMEDIATE
RELEASE."  FAY V. NOIA, 372 U.S. 391, 401 - 402 (1963).  MORE OFTEN
THAN NOT, CLAIMS OF UNCONSTITUTIONAL DETENTION TURN UPON THE RESOLUTION
OF CONTESTED ISSUES OF FACT.  ACCORDINGLY, SINCE THE JUDICIARY ACT OF
FEBRUARY 5, 1867, C. 28, 1, 14 STAT. 385, CONGRESS HAS EXPRESSLY VESTED
PLENARY POWER IN THE FEDERAL COURTS "FOR TAKING TESTIMONY AND TRYING
THE FACTS ANEW IN HABEAS HEARINGS.  . ."  /5/  FAY V. NOIA, SUPRA, AT
416.  SEE ALSO TOWNSEND V. SAIN, 372 U.S. 293, 312 (1963). 

IN CONNECTION WITH THE 1948 REVISION AND RECODIFICATION OF THE
JUDICIAL CODE, /6/  REV. STAT. 761, CONSTRUED IN HOLIDAY, AND OTHER
PROCEDURAL PROVISIONS OF THE HABEAS CORPUS ACT WERE CONSOLIDATED INTO
28 U.S.C. 2243.  THE PERTINENT PORTION COVERING HABEAS CORPUS
EVIDENTIARY HEARINGS PROVIDES THAT "(THE COURT SHALL SUMMARILY HEAR AND
DETERMINE THE FACTS, AND DISPOSE OF THE MATTER AS LAW AND JUSTICE
REQUIRE."  THE REVISERS THUS DELETED SOME WORDS FROM REV. STAT. 761,
BUT THE REVISERS' NOTES ACCOMPANYING 2243, TOGETHER WITH THE REPORTS OF
THE COMMITTEE OF THE JUDICIARY OF THE SENATE,  /7/  AND OF THE HOUSE,
/8/  MAKE ABUNDANTLY CLEAR THAT THE WORD CHANGES AND OMISSIONS IN REV.
STAT. 761 WERE INTENDED ONLY AS CHANGES IN FORM.  /9/ 

ACCORDINGLY, THE CONSTRUCTION OF 2243 HAS BEEN THAT GIVEN 761 IN
HOLIDAY.  UNITED STATES V. HAYMAN, 342 U.S. 205, 213 N.16 (1952); BROWN
V. ALLEN, 344 U.S. 443, 462 - 463 (1953).  THE COURT HELD IN THE LATTER
CASE: 

"A FEDERAL JUDGE ON A HABEAS CORPUS APPLICATION IS REQUIRED TO
'SUMMARILY HEAR AND DETERMINE THE FACTS, AND DISPOSE OF THE MATTER AS
LAW AND JUSTICE REQUIRE,'  28 U.S.C. 2243.  THIS HAS LONG BEEN THE
LAW.  R.S. 761, OLD 28 U.S.C. 461."  IBID. (EMPHASIS ADDED). 

        III 

OUR INQUIRY IS THUS NARROWED TO THE QUESTION WHETHER THE FEDERAL
MAGISTRATES ACT CHANGED THE REQUIREMENT OF 2243 THAT FEDERAL JUDGES
PERSONALLY CONDUCT HABEAS CORPUS EVIDENTIARY HEARINGS.  CERTAINLY
NOTHING IN THE TEXT OR LEGISLATIVE HISTORY OF THE MAGISTRATES ACT
SUGGESTS THAT CONGRESS MEANT TO CHANGE THAT REQUIREMENT.  /10/  RATHER,
BOTH TEXT AND LEGISLATIVE HISTORY PLAINLY REVEAL A CONGRESSIONAL
DETERMINATION TO RETAIN THE REQUIREMENT.  FOR, ALTHOUGH THE ACT GIVES
DISTRICT JUDGES BROAD AUTHORITY TO ASSIGN A WIDE RANGE OF DUTIES TO
MAGISTRATES, CONGRESS CAREFULLY CIRCUMSCRIBED THE PERMISSABLE SCOPE OF
ASSIGNMENT TO ONLY "SUCH ADDITIONAL DUTIES AS ARE NOT INCONSISTENT WITH
THE CONSTITUTION AND LAWS OF THE UNITED STATES."  28 U.S.C. 636 (B)
(EMPHASIS ADDED).  AND IN DEFINING ASSIGNABLE DUTIES, CONGRESS DECREED
THAT THE DUTY OF HOLDING EVIDENTIARY HEARINGS WAS NOT ASSIGNABLE.  THIS
CLEARLY EMERGES FROM THE LEGISLATIVE HISTORY OF SUBSECTION (3) OF 636
(B), WHICH PROVIDES: 

     "(3) PRELIMINARY REVIEW OF APPLICATIONS FOR POSTTRIAL RELIEF

  MADE BY INDIVIDUALS CONVICTED OF CRIMINAL OFFENSES, AND

  SUBMISSION OF A REPORT AND RECOMMENDATIONS TO FACILITATE THE

  DECISION OF THE DISTRICT JUDGE HAVING JURISDICTION OVER THE CASE

  AS TO WHETHER THERE SHOULD BE A HEARING." 

THAT LEGISLATIVE HISTORY REVEALS THAT THE JUDICIAL CONFERENCE OF THE
UNITED STATES OBJECTED TO SUCCESSIVE PHRASINGS OF SUBSECTION (B) (3)
UNTIL IT WAS PHRASED TO MAKE CLEAR THAT THE AUTHORITY GIVEN DISTRICT
COURTS TO ASSIGN DUTIES TO MAGISTRATED DID NOT INCLUDE AUTHORITY TO
HOLD EVIDENTIARY HEARINGS ON APPLICATIONS FOR POSTTRIAL RELIEF.  /11/
THE ORIGINAL DRAFT OF THE SUBSECTION /12/  HAD PROPOSED THAT
MAGISTRATES' DUTIES INCLUDE 

"(3) PRELIMINARY CONSIDERATION OF APPLICATIONS FOR POST-TRIAL RELIEF
MADE BY INDIVIDUALS CONVICTED OF CRIMINAL OFFENSES."  BUT BECAUSE THAT
LANGUAGE WAS SUSCEPTIBLE OF THE INTERPRETATION THAT MAGISTRATES MIGHT
CONDUCT EVIDENTIARY HEARINGS, THE JUDICIAL CONFERENCE OF THE UNITED
STATES OBJECTED TO IT.  /13/  ACCORDINGLY, THE SUBSECTION WAS REWRITTEN
TO PROVIDE FOR 

     "(3) PRELIMINARY REVIEW OF APPLICATIONS FOR POSTTRIAL RELIEF

  MADE BY INDIVIDUALS CONVICTED OF CRIMINAL OFFENSES, AND

  SUBMISSION OF A REPORT AND RECOMMENDATIONS TO FACILITATE THE

  DECISION OF THE DISTRICT JUDGE HAVING JURISDICTION OVER THE CASE

  . . ." 

THE COMMITTEE ON THE ADMINISTRATION OF THE CRIMINAL LAW OF THE JUDICIAL
CONFERENCE OBJECTED THAT THE REVISION DID NOT "MAKE IT CLEAR THAT IT IS
THE JUDGE'S RESPONSIBILITY TO MAKE THE ULTIMATE DECISIONS AND TO HOLD
HEARINGS ON SUCH APPLICATIONS, RATHER THAN THAT OF THE MAGISTRATE." 
/14/  THE COMMITTEE THEREFORE RECOMMENDED THE ADDITION OF THE PHRASE
"AS TO WHETHER THERE SHOULD BE A HEARING" IMMEDIATELY FOLLOWING THE
WORD "CASE."  /15/  THE PROPOSED ADDITION WAS MADE,  /16/  AND
SUBSECTION (B) (3) IN ITS PRESENT FORM WAS ENACTED.  THUS, ALTHOUGH 636
(B) PROVIDES THAT "ADDITIONAL DUTIES AUTHORIZED BY RULE MAY INCLUDE,
BUT ARE NOT RESTRICTED TO," DUTIES DEFINED IN SUBSECTION (B) (3), THE
LEGISLATIVE HISTORY OF THE SUBSECTION COMPELS THE CONCLUSION THAT
CONGRESS MADE A DELIBERATE CHOICE TO PROCLUDE DISTRICT COURTS FROM
ASSIGNING MAGISTRATES THE DUTY TO HOLD EVIDENTIARY HEARINGS. 

WE CONCLUDE THAT, SINCE 2243 REQUIRES THAT THE DISTRICT JUDGE
PERSONALLY HOLD EVIDENTIARY HEARINGS IN FEDERAL HABEAS CORPUS CASES,
LOCAL RULE 16, INSOFAR AS IT AUTHORIZES THE FULL-TIME MAGISTRATE TO
HOLD SUCH HEARINGS, IS INVALID BECAUSE IT IS "INCONSISTENT WITH THE . .
. LAWS OF THE UNITED STATES" UNDER 636 (B).  WE CONCLUDE FURTHER THAT
THE RULE IS TO THAT EXTENT INVALID BECAUSE, AS WE CONSTRUE 636 (B),
THAT SECTION ITSELF PRECLUDES DISTRICT JUDGES FROM ASSIGNING
MAGISTRATES THE DUTY OF CONDUCTING EVIDENTIARY HEARINGS.  /17/  REVIEW
BY MAGISTRATES OF APPLICATIONS FOR POSTTRIAL RELIEF IS THUS LIMITED TO
REVIEW FOR THE PURPOSE OF PROPOSING, NOT HOLDING, EVIDENTIARY
HEARINGS.  /18/  IN CONNECTION WITH THE PRELIMINARY REVIEW WHETHER OR
NOT TO PROPOSE THAT THE DISTRICT JUDGE HOLD AN EVIDENTIARY HEARING, WE
AGREE THA MAGISTRATES MAY RECEIVE THE STATE COURT RECORD AND ALL
AFFIDAVITS, STIPULATIONS, AND OTHER DOCUMENTS SUBMITTED BY THE
PARTIES.  /19/  MAGISTRATES ARE PROHIBITED ONLY FROM CONDUCTING THE
ACTUAL EVIDENTIARY HEARINGS.  /20/ 

THE INVALIDITY OF LOCAL RULE 16 IS NOT CURED BY ITS PROVISION THAT
THE "DISTRICT JUDGE SHALL PROCEED TO HEAR THE RECORDING OF THE
TESTIMONY GIVEN AT THE EVIDENTIARY HEARING AND GIVE IT DE NOVO
CONSIDERATION."  HOLIDAY REASONED THAT THE COMMAND OF 761, NOW 2243,
WAS DESIGNED BY CONGRESS IN RECOGNITION THAT "(ONE OF THE ESSENTIAL
ELEMENTS OF THE DETERMINATION OF THE CRUCIAL FACTS IS THE WEIGHING AND
APPRAISING OF THE TESTIMONY."  313 U.S., AT 352.  "TO EXPERIENCED
LAWYERS IT IS COMMONPLACE THAT THE OUTCOME OF A LAWSUIT--AND HENCE THE
VINDICATION OF LEGAL RIGHTS--DEPENDS MORE OFTEN ON HOW THE FACTFINDER
APPRAISES THE FACTS THAN ON A DISPUTED CONSTRUCTION OF A STATUTE OR
INTERPRETATION OF A LINE OF PRECEDENTS.  THUS THE PROCEDURES BY WHICH
THE FACTS OF THE CASE ARE DETERMINED ASSUME AN IMPORTANCE FULLY AS
GREAT AS THE VALIDITY OF THE SUBSTANTIVE RULE OF LAW TO BE APPLIED." 
SPEISER V. RANDALL, 357 U.S. 513, 520 (1958).  CONGRESS, HOLIDAY HELD,
"(PLAINLY . . . INTENDED THAT THE PRISONER MIGHT INVOKE . . . APPRAISAL
BY THE JUDGE HIMSELF."  IN THAT CIRCUMSTANCE, WE "CANNOT SAY THAT AN
APPRAISAL OF THE TRUTH OF THE PRISONER'S ORAL TESTIMONY" BASED ON
LISTENING TO A RECORDING OF IT, "IS, IN THE LIGHT OF THE PURPOSE AND
OBJECT OF THE PROCEEDING, THE EQUIVALENT OF THE JUDGE'S OWN EXERCISE OF
THE FUNCTION OF THE TRIER OF THE FACTS."  313 U.S., AT 352. 

              AFFIRMED. 

/1/  COMMISSIONERS HAD BEEN EMPOWERED BY THE FEDERAL RULES OF
CRIMINAL PROCEDURE TO GIVE OATHS (RULE 3); ISSUE ARREST WARRANTS (RULE
4); CONDUCT PRELIMINARY EXAMINATIONS OF ARRESTEES (RULE 5); ISSUE
SUBPOENAS (RULE 17); ISSUE WARRANTS OF REMOVAL TO ANOTHER DISTRICT
(RULE 40); AND RELEASE DEFENDANTS ON BAIL (RULE 46).  IN ADDITION,
COMMISSIONERS WERE AUTHORIZED TO TRY PERSONS ACCUSED OF PETTY OFFENSES
(DEFINED BY 18 U.S.C. 1 (3) AS CRIMES FOR WHICH THE PENALTY DOES NOT
EXCEED IMPRISONMENT FOR SIX MONTHS OR A FINE OF NOT MORE THAN $500 OR
BOTH) COMMITTED WITHIN THE CONFINES OF FEDERAL ENCLAVES, 62 STAT. 830. 
IN CIVIL CASES COMMISSIONERS WERE LIMITED TO ADMINISTERING OATHS AND
TAKING BAIL, ACKNOWLEDGMENTS, AFFIDAVITS, AND DEPOSITIONS.  62 STAT.
917. 

/2/  UNLIKE THE MORE RESTRICTED CRIMINAL TRIAL JURISDICTION OF THE
FORMER COMMISSIONERS, SEE N.1, SUPRA, THE AUTHORITY OF MAGISTRATES
EXTENDS TO MINOR OFFENSES COMMITTED ANYWHERE WITHIN THE JUDICIAL
DISTRICT AND INCLUDES CRIMES PUNISHABLE BY IMPRISONMENT NOT EXCEEDING
ONE YEAR, OR A FINE OF NOT MORE THAN $1,000, OR BOTH. 

/3/  THE FEDERAL MAGISTRATES ACT, 28 U.S.C. 636 (B),PROVIDES: 

"(B) ANY DISTRICT COURT OF THE UNITED STATES, BY THE CONCURRENCE OF
A MAJORITY OF ALL THE JUDGES OF SUCH DISTRICT COURT, MAY ESTABLISH
RULES PURSUANT TO WHICH ANY FULL-TIME UNITED STATES MAGISTRATE, OR,
WHERE THERE IS NOT FULL-TIME MAGISTRATE REASONABLY AVAILABLE, ANY PART
TIME MAGISTRATE SPECIALLY DESIGNATED BY THE COURT, MAY BE ASSIGNED
WITHIN THE TERRITORIAL JURISDICTION OF SUCH COURT SUCH ADDITIONAL
DUTIES AS ARE NOT INCONSISTENT WITH THE CONSTITUTION AND LAWS OF THE
UNITED STATES.  THE ADDITIONAL DUTIES AUTHORIZED BY RULE MAY INCLUDE,
BUT ARE NOT RESTRICTED TO--, 

"(1) SERVICE AS A SPECIAL MASTER IN AN APPROPRIATE CIVIL ACTION
PURSUANT TO THE APPLICABLE PROVISIONS OF THIS TITLE AND THE FEDERAL
RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS; 

"(2) ASSISTANCE TO A DISTRICT JUDGE IN THE CONDUCT OF PRETRIAL OR
DISCOVERY PROCEEDINGS IN CIVIL OR CRIMINAL ACTIONS; AND 

"(3) PRELIMINARY REVIEW OF APPLICATIONS FOR POSTTRIAL RELIEF MADE BY
INDIVIDUALS CONVICTED OF CRIMINAL OFFENSES, AND SUBMISSION OF A REPORT
AND RECOMMENDATIONS TO FACILITATE THE DECISION OF THE DISTRICT JUDGE
HAVING JURISDICTION OVER THE CASE AS TO WHETHER THERE SHOULD BE A
HEARING." 

/4/  WE THUS AGREE WITH THE COURT OF APPEALS THAT THIS CASE DOES NOT
REQUIRE RESOLUTION OF THE QUESTION WHETHER CONGRESS CONSTITUTIONALLY
MAY ENACT LEGISLATION VESTING AUTHORITY, PURSUANT TO RULE OR ORDER OF
COURT, IN MAGISTRATES TO HOLD EVIDENTIARY HEARINGS ON HABEAS CORPUS
PETITIONS.  WE INDICATE NO VIEWS AS TO THE VALIDITY OF INVESTING SUCH
AUTHORITY IN A MAGISTRATE OR OTHER OFFICER "OUTSIDE THE PALE OF ARTICLE
III OF THE CONSTITUTION."  483 F.2D 1131, 1133 N.1 (CA6 1973). 

/5/  THE RELEVANT PORTION OF THE JUDICIARY ACT OF FEBRUARY 5, 1867,
C. 28, 1, 14 STAT. 385, PROVIDES THAT THE "COURT OR JUDGE SHALL PROCEED
IN A SUMMARY WAY TO DETERMINE THE FACTS OF THE CASE, BY HEARING
TESTIMONY AND THE ARGUMENTS OF THE PARTIES INTERESTED, AND IF IT SHALL
APPEAR THAT THE PETITIONER IS DEPRIVED OF HIS OR HER LIBERTY IN
CONTRAVENTION OF THE CONSTITUTION OR LAWS OF THE UNITED STATES, HE OR
SHE SHALL FORTHWITH BE DISCHARGED AND SET AT LIBERTY." 

/6/  62 STAT. 869. 

/7/  S. REP. NO. 1559, 80TH CONG., 2ND SEES., 2 (1948). 

/8/  H.R. REP. NO. 308, 80TH CONG., 1ST SESS., A178 (1947). 

/9/  SEE ALSO J. MOORE, COMMENTARY ON THE U.S. JUDICIAL CODE 436
N.78 (1949); PAYNE V. WINGO, 442 F.2D 1192, 1194 (CA6 1971). 

HAD ANY SUBSTANTIVE CHANGE IN THE MEANING OF REV. STAT. 761, AS
CONSTRUED IN HOLIDAY V. JOHNSTON, BEEN INTENDED, THE REVISERS' NOTES
WOULD HAVE CALLED ATTENTION TO THE CHANGE.  WILLIAM W. BARRON, THE
CHIEF REVISER OF THE CODE, EXPLAINED:  "(NO CHANGES OF LAW OR POLICY
WILL BE PRESUMED FROM CHANGES OF LANGUAGE IN REVISION UNLESS AN INTENT
TO MAKE SUCH CHANGES IS CLEARLY EXPRESSED.  MERE CHANGES OF PHRASEOLOGY
INDICATE NO INTENT TO WORK A CHANGE OF MEANING BUT MERELY AN EFFORT TO
STATE IN CLEAR AND SIMPLER TERMS THE ORIGINAL MEANING OF THE STATUTE
REVISED."  BARRON, THE JUDICIAL CODE 1948 REVISION, 8 F. R. D. 439, 445
- 446.  SEE ALSO S. REP. NO. 1559, 80TH CONG., 2D SESS., 2 (1948); H.R.
REP. NO. 308, 80TH CONG., 1ST SESS., 7 (1947). 

/10/  A FULL DISCUSSION OF THE LEGISLATIVE HISTORY OF THE FEDERAL
MAGISTRATES ACT WILL BE FOUND IN TPO, INC. V. MCMILLEN, 460 F.2D 348
(CA7 1972). 

/11/  WHERE CONGRESS GAVE MAGISTRATES AUTHORITY TO CONDUCT HEARINGS,
THE AUTHORITY WAS EXPRESS AND CIRCUMSCRIBED WITH PROCEDURAL
SAFEGUARDS.  THUS 28 U.S.C. 636 (A) (3) GIVES MAGISTRATES JURISDICTION
TO CONDUCT TRIALS FOR MINOR OFFENSES, BUT 18 U.S.C. 3401 PROVIDES THAT
ANY PERSON CHARGED WITH A MINOR OFFENSE MAY ELECT TO BE TRIED BY A
DISTRICT JUDGE.  TITLE 28 U.S.C. 636 (B) (1) AUTHORIZES MAGISTRATES TO
SERVE AS SPECIAL MASTERS-WHICH FREQUENTLY INVOLVES THE CONDUCT OF
HEARINGS--BUT MAKES THAT SERVICE SUBJECT TO THE FEDERAL RULES OF CIVIL
PROCEDURE, WHICH INCLUDE THE RESTRICTIONS OF RULE 53 (B) THAT
"REFERENCE TO A MASTER SHALL BE THE EXCEPTION AND NOT THE RULE."  SEE
NOTE, DEVELOPMENTS IN THE LAW--FEDERAL HABEAS CORPUS, 83 HARV. L. REV.
1038, 1189 N.229 (1970). 

/12/  S. 3475, FEDERAL MAGISTRATES ACT OF 1966, 89TH CONG., 2D SESS.
(1966). 

/13/  SEE THE REPORT OF THE COMMITTEE ON THE ADMINISTRATION OF THE
CRIMINAL LAW, ADOPTED BY THE JUDICIAL CONFERENCE IN SEPTEMBER 1966,
REPRINTED IN THE HEARINGS ON S. 3475 AND S. 945 BEFORE THE SUBCOMMITTEE
ON IMPROVEMENTS IN JUDICIAL MACHINERY OF THE SENATE COMMITTEE ON THE
JUDICIARY, 89TH CONG., 2D SESS. (1966) AND 90TH CONG., 1ST SESS.
(1967), PP. 241J, 241N. 

/14/  SEE THE REPORT OF THE COMMITTEE ON THE ADMINISTRATION OF THE
CRIMINAL LAW, ADOPTED BY THE JUDICIAL CONFERENCE IN MARCH 1967,
REPRINTED IN THE HEARINGS ON S. 3475, AND S. 945 BEFORE THE
SUBCOMMITTEE ON IMPROVEMENTS IN JUDICIAL MACHINERY OF THE SENATE
COMMITTEE ON JUDICIARY, 89TH CONG., 2D SESS. (1966) AND 90TH CONG., 1ST
SESS. (1967).  PP. 244, 245. 

/15/  IBID. 

/16/  S. 945, FEDERAL MAGISTRATES ACT OF 1967, 90TH CONG., 1ST SESS.
(1967). 

/17/  SEE SHAPIRO, FEDERAL HABEAS CORPUS: A STUDY IN MASSACHUSSETS, 87
HARV. L. REV. 321, 364 - 365 (1973); NOTE DEVELOPMENTS IN THE LAW-
FEDERAL HABEAS CORPUS, 83 HARV. L. REV. 1083, 1188 - 1189 (1970). 

/18/  A QUALIFIED, EXPERIENCED MAGISTRATE WILL, IT IS HOPED, ACQUIRE
AN EXPERTISE IN EXAMINING THESE (POST-CONVICTION REVIEW) APPLICATIONS
AND SUMMARIZING THEIR IMPORTANT CONTENTS FOR THE DISTRICT JUDGE,
THEREBY FACILITATING HIS DECISIONS.  LAW CLERKS ARE PRESENTLY CHARGED
WITH THIS RESPONSIBILITY BY MANY JUDGES, BUT JUDGES HAVE NOTED THAT THE
NORMAL 1-YEAR CLERKSHIP DOES NOT AFFORD LAW CLERKS THE TIME OR
EXPERIENCE NECESSARY TO ATTAIN REAL EFFICIENCY IN HANDLING SUCH
APPLICATIONS."  S. REP. NO 371, 90TH CONG., 1ST SESS., 26 (1967). 

/19/  TO THE EXTENT THAT O'SHEA V. UNITED STATES, 491 F.2D 774 (CA1
1974), AND NOORLANDER V. CICCONE, 489 F.2D 642 (CA8 1973), SUGGEST THAT
MAGISTRATES MAY ALSO ACCEPT ORAL TESTIMONY, PROVIDED THAT EACH PARTY
HAS THE RIGHT TO A DE NOVO HEARING BEFORE THE DISTRICT JUDDGE, WE
DISAGREE.  SUCH A PROCEDURE IS PRECLUDED BY BOTH 2243 AND 636 (B). 

/20/  SINCE UNDER 636 (B) DISTRICT JUDGES MAY CALL UPON MAGISTRATES
TO RELIEVE THEM OF MOST OTHER DETAILS OF THE PROCESSING OF HABEAS
CORPUS APPLICATIONS, IT DOES NOT APPEAR THAT JUDGES WILL BE
SIGNIFICANTLY OVERBURDENED BY THE REQUIREMENT THAT THEY PERSONALLY
CONDUCT EVIDENTIARY HEARINGS.  INDEED, DATA FROM THE ADMINISTRATIVE
OFFICE OF THE UNITED STATES COURTS INDICATE THAT VERY FEW HABEAS CORPUS
CASES EVER REACH THE EVIDENTIARY HEARING STAGE.  IN 1973, OF THE 10,800
PRISONER PETITIONS FILED FOR HABEAS CORPUS OR AS 28 U.S.C.  2255
MOTIONS TO VACATE SENTENCE, LESS THAN 5%, OR APPROXIMATELY 530,
NECESSITATED EVIDENTIARY HEARINGS.  SEE REPORT OF THE DIRECTOR OF THE
ADMINISTRATIVE OFFICE OF UNITED STATES COURTS, TABLE C-2, P. 325, TABLE
C-8, P. 383 (1973).  WHEN HEARINGS WERE REQUIRED, 88% WERE COMPLETED IN
ONE DAY OR LESS.  ID., AT 383.  THUS, AMONG THE 400 DISTRICT JUDGES,
THE BURDEN OF EVIDENTIARY HEARINGS AVERAGES LESS THAN 1.5 HEARING DAYS
PER JUDGE PER YEAR.  TO THE EXTENT THAT THE 80 ACTIVE SENIOR DISTRICT
JUDGES ALSO PARTICIPATE IN HABEAS CORPUS CASES, THE HEARING BURDEN UPON
EACH DISTRICT JUDGE IS FURTHER REDUCED. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE WHITE JOINS,
DISSENTING. 

THE COURT TODAY READS TWO SEPARATE STATUTES AND OUR PRIOR CASES TO
REACH A RESULT CONTRARY TO THE PURPOSES UNDERLYING THE ENACTMENT IN
1968 OF THE FEDERAL MAGISTRATES ACT, 28 U.S.C. 631 ET SEQ., AND TO THE
CONCLUSION OF EVERY OTHER COURT OF APPEALS WHICH HAS HAD OCCASION TO
CONSIDER THE MATTER.  /1/ 

THE FEDERAL MAGISTRATES ACT WAS BOTH "DESIGNED TO CREATE AN UPGRADE
LOWER TIER JUDICIAL OFFICE," S. REP.  NO. 371, 90TH CONG., 1ST SESS.,
11 (1967), AND "INTENDED.  . . TO CULL FROM THE EVER-GROWING WORKLOAD
OF THE U.S. DISTRICT COURTS MATTERS THAT ARE MORE DESIRABLY PERFORMED
BY A LOWER TIER OF JUDICIAL OFFICERS."  H.R. REP. NO. 1629, 90TH CONG.,
2D SESS., 12 (1968).  THE COURT'S HOLDING THAT FEDERAL MAGISTRATES MAY
NOT CONDUCT EVIDENTIARY HEARINGS IN FEDERAL HABEAS CORPUS CASES IS BOTH
INCONSISTENT WITH THE NEW STATUS OF MAGISTRATES AND DEPUTY MAGISTRATES,
/2/ AND SERVES TO DEFEAT THE OBJECTIVE OF THE ACT, DESCRIBED BY SENATOR
TYDINGS, ITS PRINCIPLE SPONSOR, SEE N.2, SUPRA, "TO PROVIDE DISTRICT
JUDGES WITH MORE TIME TO DEVOTE TO THE ACTUAL TRIAL OF CASES AND THE
WRITING OF OPINIONS."  /3/  HEARINGS 3. 

        I 

IN ITS TWO-STAGE ANALYSIS, THE COURT FINDS FIRST THAT UNDER THE
TERMS OF THE ACT IT WOULD BE "INCONSISTENT WITH THE . . .LAWS OF THE
UNITED STATES," 28 U.S.C. 636 (B), TO PERMIT MAGISTRATES TO CONDUCT
EVIDENTIARY HEARINGS IN HABEAS CORPUS CASES.  THIS IS SO, IT IS SAID,
BECAUSE A PROCEDURAL PROVISION OF THE HABEAS CORPUS ACT, REV. STAT.
761, WAS CONSTRUED 33 YEARS AGO, LONG BEFORE THE ENACTMENT OF THE
MAGISTRATES ACT, TO CONFINE THAT FUNCTION TO JUDGES ALONE.  HOLIDAY V.
JOHNSTON, 313 U.S. 342 (1941).  THE 1948 REVISION AND RECODIFICATION OF
THE JUDICIAL CODE, WHICH INCORPORATED REV. STAT. 761 INTO 28 U.S.C.
2243, IS HELD TO HAVE CARRIED FORWARD THIS LIMITATION DESPITE A
CRITICAL LANGUAGE CHANGE.  UNITED STATES V. HAYMAN, 342 U.S. 205
(1952); BROWN V. ALLEN, 344 U.S. 443 (1953).  NEITHER THE NEW STATUTE,
ITS DRAFTING HISTORY, NOR THESE LATTER CASES, SUPPORT THE COURT'S
CONCLUSION. 

STAT. 761, BOTH OF WHICH PROVISIONS SET FORTH IN PART WHAT AUTHORITY
SHALL HEAR AND DETERMINE THE FACTS INVOLVED IN AN APPLICATION FOR A
WRIT OF HABEAS CORPUS.  AND 2243 CHANGED THE LANGUAGE OF REV. STAT.
761, WHICH ORIGINALLY READ THAT THE AUTHORITY WAS TO BE THE "COURT, OR
JUSTICE, OR JUDGE," NOW TO READ SIMPLY THE "COURT."  BUT THE COURT
FAILS TO NOTE THAT 2243 INCORPORATED A SECOND PROVISION FROM THE HABEAS
CORPUS ACT, REV. STAT. 755, WHICH IN PART SET FORTH WHAT AUTHORITY
SHALL ISSUE THE WRIT OF HABEAS CORPUS FOR WHICH APPLICATION WAS MADE. 
THE AUTHORITY TO ISSUE THE WRIT SET FORTH IN REV. STAT. 755 WAS
IDENTICAL TO THAT SET FORTH IN REV. STAT. 761 TO HEAR AND DETERMINE THE
FACTS:  THE "COURT, OR JUSTICE, OR JUDGE."  UNLIKE THE LANGUAGE OF REV.
STAT. 761, HOWEVER, THE QUOTED LANGUAGE OF REV. STAT. 755 WAS
INCORPORATED INTO 2243 SUBSTANTIALLY UNCHANGED; UNDER THE PRESENT
STATUTE, IT IS THE "COURT, JUSTICE OR JUDGE" WHO SHALL ISSUE THE WRIT. 

CONGRESS SOUGHT TO MAKE CERTAIN THAT ONLY A "COURT, JUSTICE OR
JUDGE" COULD ISSUE THE WRIT; BUT BY CHANGING THE AUTHORITY TO HEAR THE
FACTS FROM A "COURT, OR JUSTICE, OR JUDGE" TO, SIMPLY, A "COURT,"
CONGRESS MUST HAVE INTENDED TO BROADEN THE AUTHORITY OF THE COURT, AT
LEAST TO PERFORM THE PRELIMINARY HEARING FUNCTION, SUBJECT ALWAYS TO
THE APPROVAL OF A DISTRICT JUDGE.  /4/  TO READ THE LANGUAGE CHANGE IN
ANY OTHER WAY WOULD IMPUTE TO CONGRESS AN INTENT TO ALTER STATUTORY
LANGUAGE, THE MEANING OF WHICH HAD ALREADY BEEN FINALLY DETERMINED BY
THIS COURT, HOLIDAY V. JOHNSTON, SUPRA, WITHOUT THE KNOWLEDGE THAT THE
ALTERATION WOULD RAISE INTERPRETIVE DIFFICULTIES.  MOREOVER, TO CHANGE
THE LANGUAGE OF REV. STAT. 761, BUT NOT TO CHANGE THAT OF REV. STAT.
755, CANNOT BE SAID, AS THE COURT DOES, ANTE, AT 469 N. 9, TO BE A
"(MERE CHANGE OF PHRASEOLOGY," FOR SUCH CHANGES WERE UNDERTAKEN ONLY
FOR PURPOSES OF UNIFORMITY.  IF, AS CHARLES J. ZINN, COUNSEL TO THE LAW
REVISION COMMITTEE WHICH REVISED THE JUDICIAL CODE, TESTIFIED, "WE HAVE
CHANGED THE LANGUAGE TO GET A UNIFORM STYLE,"  /5/  THEN WITHIN THE
SAME STATUTORY PROVISION, SURELY CONGRESS WOULD HAVE MADE ONLY "COURTS"
ABLE TO ISSUE WRITS, AS WELL AS HEAR THE FACTS OF THE CLAIM. 

NOR DO THE CASES CITED BY THE COURT, ANTE, AT 469, SUPPORT ITS
INTERPRETATION OF 2243.  BROWN V. ALLEN, SUPRA, IS PLAINLY INAPPOSITE. 
THE SEGMENT OF BROWN QUOTED BY THE COURT IS RELEVANT TO BROWN'S
DISCUSSION OF WHETHER A PETITIONER UNDER 28 U.S.C. 2254 HAD A RIGHT TO
A PLENARY HEARING ALTHOUGH AN EARLIER PETITION OF HIS WHICH PRESENTED
SUBSTANTIALLY THE SAME FEDERAL ISSUES WAS REFUSED IN THE STATE COURT. 
WHEN THE COURT QUOTES FROM BROWN:  "THIS HAS LONG BEEN THE LAW," ANTE,
AT 469, IT IS REFERRING TO WHAT THE BROWN COURT CALLED THE "GENERAL
RULE" APPROVED IN SALINGER V. LOISEL, 265 U.S. 224, 231 (1924).  BROWN,
344 U.S., AT 463.  SALINGER IN TURN MAKES IT CLEAR THAT THE "GENERAL
RULE" WHICH HAS "LONG BEEN THE LAW" HAS NOTHING WHATEVER TO DO WITH WHO
MAY HEAR AND DETERMINE THE FACTS ON AN APPLICATION FOR A WRIT OF HABEAS
CORPUS.  RATHER, IT PERTAINS ONLY TO THAT PORTION OF 2243 WHICH BROWN
ITSELF QUOTED, 344 U.S., AT 462, AND WHICH SALINGER ALSO QUOTED, 265
U.S., AT 231, THAT IS, "TO DISPOSE OF (THE MATTER OR PARTY) AS LAW AND
JUSTICE (MAY) REQUIRE."  IN SALINGER, THIS RULE MEANT EACH APPLICATION
FOR A WRIT OF HABEAS CORPUS COULD BE DISPOSED OF IN THE EXERCISE OF
JUDICIAL DISCRETION, WHICH COULD IN PART GIVE CONTROLLING WEIGHT TO "A
PRIOR REFUSAL (BY A FEDERAL COURT) TO DISCHARGE ON A LIKE
APPLICATION."  IBID.  IN BROWN, THAT RULE WAS EXTENDED UNDER CERTAIN
CIRCUMSTANCES TO A PRIOR STATE COURT REFUSAL TO ISSUE THE WRIT, IN
SUPPORT OF THE COURT'S CONCLUSION THERE THAT A 2254 PETITIONER HAD NO
RIGHT TO A PLENARY HEARING ON HIS APPLICATION FOR THE WRIT.  THE RULE
THE COURT RELIES ON TODAY IS THUS ONE OF DISCRETION TO HOLD AN
EVIDENTIARY HEARING "AS LAW AND JUSTICE REQUIRE," WHICH HAS NO BEARING
ON WHAT OFFICIAL SHALL CONDUCT THE HEARING ONCE A DECISION IS MADE TO
HOLD ONE.  BROWN IS THUS NO AUTHORITY FOR THE PROPOSITION THAT THE SAME
LIMITATION HOLIDAY PLACED ON REV. STAT.  761 ("COURT, OR JUSTICE, OR
JUDGE") APPLIES TO 2243 ("COURT") ENACTED AFTER HOLIDAY. 

THE COURT ALSO RELIES UPON UNITED STATES V. HAYMAN, SUPRA, TO
SUPPORT ITS INTERPRETATION OF 2243.  THE ISSUE IN HAYMAN HAD NOTHING TO
DO WITH WHO SHALL HEAR AND DETERMINE FACTS UPON AN APPLICATION FOR A
WRIT OF HABEAS CORPUS.  RATHER, THE COURT THERE WAS CONCERNED SOLELY
WITH THE QUESTION WHETHER A DISTRICT COURT MAY, UPON AN EVIDENTIARY
HEARING, DECIDE FACTUAL ISSUES PRESENTED BY A MOTION UNDER 28 U.S.C.
2255, WHERE THE MOVANT WAS NOT NOTIFIED AND WAS NOT PRESENT.  IN THE
CONTEXT OF DISCUSSING AN EARLIER CASE WHICH HAD HELD THAT A DISTRICT
COURT MUST DECIDE MATERIAL ISSUES OF FACT BY TAKING EVIDENCE, NOT BY EX
PARTE AFFIDAVITS, HAYMAN DROPPED A FOOTNOTE STATING SIMPLY "(NOR CAN
THE FACTUAL ISSUES BE HEARD BEFORE A COMMISSIONER," CITING HOLIDAY,
SUPRA.  342 U.S., AT 213 N. 16.  NOT ONLY WAS THIS FOOTNOTE COMPLETELY
IRRELEVANT TO THE ISSUE IN HAYMAN, ITS CITATION TO HOLIDAY FOR SUPPORT,
WITHOUT FURTHER DISCUSSION, MAKES MANIFEST THAT THE COURT DID NOT
CONSIDER THE EFFECT OF THE SUBSEQUENT LANGUAGE CHANGE IN 2243 ON THE
STATUE (REV. STAT. 761) WHICH HOLIDAY CONSTRUED.  THE FULFILLMENT OF
THE PURPOSES OF THE FEDERAL MAGISTRATES ACT SHOULD NOT HANG ON SUCH A
SLIM REED. 

        II 

EVEN ASSUMING THAT 2243 WAS INTENDED TO CARRY FORWARD THE LIMITATION
OF HOLIDAY'S INTERPRETATION OF ITS PREDECESSOR, BY ENACTING THE
MAGISTRATES ACT, AND PARTICULARLY 636 (B) THEREOF, CONGRESS MADE CLEAR
ITS INTENT TO ELIMINATE THAT RESTRICTION.  THUS, WHILE HAYMAN MAY SPEAK
IN TERMS OF A "COMMISSIONER," CONGRESS CHANGED NOT ONLY THE TITLE OF
THAT OFFICE, BUT ALSO THE QUALIFICATIONS FOR AND THE FUNCTIONS OF THE
OFFICE. 

SUCH ADDITIONAL DUTIES AS ARE NOT INCONSISTENT WITH THE CONSTITUTION
AND LAWS OF THE UNITED STATES."  THE SECTION THEN SETS FORTH IN THREE
SUBDIVISIONS CERTAIN DUTIES WHICH DISTRICT COURTS MAY AUTHORIZE BY
RULE, BUT THE DUTIES "ARE NOT RESTRICTED TO" THOSE SET FORTH.  THE
THIRD ILLUSTRATIVE SUBDIVISION PROVIDES THAT DISTRICT COURTS MAY
AUTHORIZE THE ADDITIONAL DUTY OF 

"PRELIMINARY REVIEW OF APPLICATIONS FOR POSTTRIAL RELIEF MADE BY
INDIVIDUALS CONVICTED OF CRIMINAL OFFENSES, AND SUBMISSION OF A REPORT
AND RECOMMENDATIONS TO FACILITATE THE DECISION OF THE DISTRICT JUDGE
HAVING JURISDICTION OVER THE CASE AS TO WHETHER THERE SHOULD BE A
HEARING."  28 U.S.C. 636 (B) (3). 

SUBDIVISION (3), SUGGESTING ADDITIONAL DUTIES THAT MAY BE ASSIGNED
TO A MAGISTRATE IN CONNECTION WITH FEDERAL HABEAS CORPUS CASES, DOES
NOT BY ITS TERMS PERMIT MAGISTRATES TO CONDUCT EVIDENTIARY HEARINGS,
BUT THAT SUBDIVISION IS MERELY ILLUSTRATIVE, NOT EXCLUSIVE. 

"THE MENTION OF THESE THREE CATEGORIES IS INTENDED TO ILLUSTRATE THE
GENERAL CHARACTER OF DUTIES ASSIGNABLE TO MAGISTRATES UNDER THE ACT,
RATHER THAN TO CONSTITUTE AN EXCLUSIVE SPECIFICATION OF DUTIES SO
ASSIGNABLE."  S. REP. NO. 371, 90TH CONG., 1ST SESS., 25 (1967).  THE
HOUSE REPORT VIRTUALLY TRACKS THE LANGUAGE OF THE SENATE REPORT.  H.R.
REP. NO. 1629, 90TH CONG., 2D SESS., 19 (1968).  THUS, THERE BEING NO
CONSTITUTIONAL BARRIER TO PERMITTING MAGISTRATES TO CONDUCT EVIDENTIARY
HEARINGS, /6/  NOR ANY OTHER LEGAL BARRIER, SEE PART I, SUPRA, 636 (B)
ENABLES DISTRICT COURTS, AS DID THE DISTRICT COURT HERE, TO ESTABLISH
RULES WHICH SO PERMIT. 

ASSUMING, ARGUENDO, THAT 2243 DOES CONSTITUTE A POSSIBLE LEGAL
BARRIER TO SUCH RULES, THE LEGISLATIVE HISTORY OF THE ACT REVEALS
CONGRESS TO HAVE INTENDED THE ELIMINATION OF THAT BARRIER.  THE COURT
DETERMINES, IN THE SECOND STAGE OF ITS ANALYSIS, ANTE, AT 469 - 473,
THAT CONGRESS INTENDED THE OPPOSITE RESULT, BUT IN THIS MATTER THE
COURT'S PERCEPTION IS LESS THAN DISCRIMINATING.  THE LINCHPIN OF THE
CCOURT'S ARGUMENT IS THE DRAFTING EVOLUTION OF THE TERMS OF SUBDIVISION
(3), QUOTED ABOVE.  IN THE CHANGE OF LANGUAGE FORM PRELIMINARY
"CONSIDERATION" TO PRELIMINARY "REVIEW,"  /7/  AND IN THE ADDITION OF
"AS TO WHETHER THERE SHOULD BE A HEARING,"  /8/  THE COURT FINDS AN
INTENT TO BAR MAGISTRATES FROM CONDUCTING A HEARING.  BUT THE LANGUAGE
CHANGES IN THE SUBDIVISION WERE MADE ONLY DUE TO A FEAR THAT
MAGISTRATES WOULD BE THOUGHT TO HAVE BEEN GIVEN FINAL ADJUDICATORY
POWER, NOT TO PRECLUDE THEM FROM CONDUCTING HEARINGS WHEN THE DISTRICT
JUDGES RETAINED SUCH POWER.  /9/  INDEED THE LATTER WAS SPECIFICALLY
INTENDED.  AS THE SENATE REPORT STATED, 636 (B) 

"CONTEMPLATES ASSIGNMENTS TO MAGISTRATES UNDER CIRCUMSTANCES WHERE
THE ULTIMATE DECISION OF THE CASE IS REVERSED TO THE JUDGE . . ."  S.
REP. NO. 371, 90TH CONG., 1ST SESS., 26 (1967).  THE CONCERN ABOUT
ENABLING MAGISTRATES TO MAKE THE ULTIMATE DECISION FOUND EARLY
EXPRESSION IN THE SENATE HEARINGS ON THE BILL IN A COLOQUY BETWEEN
SENATOR TYDINGS AND THEN-ASSISTANT ATTORNEY GENERAL VINSON.  MR. VINSON
ULTMATELY REVEALED HIS REAL CONCERN IN A LETTER TO THE SUBCOMMITTEE
THAT SUBDIVISION (3) AS ORIGINALLY DRATED WOULD GIVE THE POWER OF
ULTIMATE DECISION TO THE MAGISTRATE:  "(IF PRELIMINARY CONSIDERATION IS
INTENDED TO INVOLVE ADJUDICATION, IT SHOULD BE HANDLED BE AN ARTICLE 3
JUDGE."  HEARINGS 130.  THAT THE SENATE VIEWED MR. VINSON'S OBJECTIONS
IN THIS LIGHT IS MADE CLEAR BY SENATOR TYDINGS' TESTIMONY IN THE
HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE. 
HEARINGS ON S. 945 ET AL. BEFORE SUBCOMMITTEE NO. 4 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 90TH CONG., 2D SESS., 72 (1968). 

IN RESPONSE TO THIS OBJECTION, SENATOR TYDINGS STATED TO MR. VINSON
AT THE SENATE HEARINGS: 

"WE WOULDN'T INTEND FOR THE FINAL DECISION TO BE MADE BY THE
MAGISTRATE.  BUT WE WOULD INTEND THAT . . . THE MAGISTRATE (BE ABLE TO)
HOLD A PRELIMINARY (HABEAS) HEARING . . . . WE CERTAINLY INTEND THAT." 
HEARINGS 112.  (EMPHASIS ADDED.)  NUMEROUS OTHER WITNESSES AT THE
SENATE HEARINGS URGED THAT THE MAGISTRATES BE PERMITTED TO HOLD
HEARINGS.  SEE, E.G., ID., AT 52 (CHIEF JUDGE NORTHROP, SUPRA, N. 3);
ID., AT 94 (CHIEF JUDGE WALTER E. HOFFMAN, OF THE EASTERN DISTRICT OF
VIRGINIA). 

AS THE COURT POINTS OUT, ANTE, AT 470 - 471, THE JUDICIAL CONFERENCE
OBJECTED TO THE ORIGINAL DRAFT BILL (S. 3475), BUT IT DID NOT
ORIGINALLY OBJECT TO SUBDIVISION (3), AS THE COURT STATES.  INSTEAD,
THE CONFERENCE OBJECTED TO 636 (B) ALTOGETHER, FEARING IT SO BROAD AS
TO BE SUBJECT TO CONSTITUTIONAL ATTACK.  ALTHOUGH NOT SPECIFIED, IT
SEEMS CLEAR THAT BY SPEAKING IN TERMS OF "DELEGATION"  THE CONFERENCE
INITIALLY SHARED MR. VINSON'S CONCERN ABOUT DELEGATING THE ULTIMATE
DECISIONMAKING POWER OF ART. III JUDGES.  HEARINGS 241N.  THE JUDICIAL
CONFERENCE THEREFORE RECOMMENDED BOTH A MODIFIED VERSION OF 636 (B),
AND THE COMPLETE ELIMINATION OF ALL THREE SUBDIVISIONS.  IBID.  WHEN
THE REVISED DRAFT BILL (S. 945), WHICH ULTIMATELY WAS ENACTED, WAS
INTRODUCED, IT DID NOT FOLLOW THE JUDICIAL CONFERENCE RECOMMENDATION,
BUT CONTINUED TO INCLUDE THE THREE SUBDIVISIONS.  AS TO SUBDIVISION
(3), THE JUDICIAL CONFERENCE RECOMMENDED THE ADDITION OF THE PHRASE "AS
TO WHETHER THERE SHOULD BE A HEARING," SEE N. 7, SUPRA, BUT AGAIN
STRESSED THAT ITS CONCERN WAS, AS WITH S. 3475, OVER THE "DELEGATION TO
MAGISTRATES."  HEARINGS 245. 

THE TENSION ESTABLISHED IN THIS EVOLUTION IS CLEAR.  ON THE ONE
HAND, CONGRESS SOUGHT TO ENABLE DISTRICT COURTS TO AUTHORIZE
MAGISTRATES TO CONDUCT EVIDENTIARY HEARINGS.  ON THE OTHER HAND, THERE
WAS APPREHENSION THAT THE POWER OF AUTHORIZATION GRANTED TO DISTRICT
COURTS MIGHT LEAD TO A RULE PERMITTING MAGISTRATES TO EXERCISE ULTIMATE
DECISIONMAKING POWER RESERVED EXCLUSIVELY TO ART. III JUDGES.  TO AVOID
THE LATTER BUT ACCOMPLISH THE FORMER, CONGRESS PERSISTED IN RETAINING
THE BOARD LANGUAGE OF 636 (B), AND IN RETAINING SUBDIVISION (3).  NOT
ONLY, AS SET FORTH EARLIER, DOES THE SUBDIVISION NOT LIMIT THE
SUBSECTION, IT WAS DRAFTED IN LANGUAGE TO INSURE THAT IT COULD NOT BE
READ TO PRECLUDE AUTHORIZING MAGISTRATES TO CONDUCT HEARINGS IN FEDERAL
HABEAS CORPUS CASES.  /10/ 

PLAINLY, CONGRESS COULD HAVE USED LANGUAGE THAT EXPRESSLY PRECLUDED
THE LATTER.  THAT THIS WAS NOT URGED UPON CONGRESS BY ANYONE, INCLUDING
THE JUDICIAL CONFERENCE, AND THAT CONGRESS DID NOT INCLUDE SUCH
LANGUAGE, ALONE SUGGESTS ITS INTENTION TO VEST IN DISTRICT COURTS THE
POWER TO AUTHORIZE MAGISTRATES TO HOLD HEARINGS.  CONVERSELY, CONGRESS
WOULD HAVE TAKEN CERTAIN RISKS HAD IT EXPRESSLY PERMITTED MAGISTRATES
TO HOLD HEARINGS, AS REVEALED BY THE FOLLOWING COLLOQUOY BETWEEN CHIEF
JUDGE HOFFMAN AND SENATOR TYDINGS AT THE SENATE HEARINGS: 

     "JUDGE HOFFMAN.  . . . AND I HAVE SUGGESTED IN MY STATEMENT .
.

  . THAT THE FEDERAL MAGISTRATE COULD BE ASSIGNED THE TASK AS A

MASTER TO CONDUCT PLENARY HEARINGS.  AFTER ALL, (HABEAS CORPUS

  PROCEEDINGS) ARE CIVIL PROCEEDINGS . . . NOT CRIMINAL

  PROCEEDINGS. 

     *         *         *         *        * 

     "SENATOR TYDINGS.  . . . (SINCE WE . . . DON'T HAVE (IN 636
(B))

  'INCLUDING HEARINGS' OR 'INCLUDING PLENARY HEARINGS,' OR

  'INCLUDING THE CONDUCTING OF PLENARY HEARINGS,' IT IS NOT

WHAT WE SHOULD HAVE? 

     "JUDGE HOFFMAN.  I AM FEARFUL THAT SOMEONE WILL SAY THAT THIS

IS MERELY AN EFFORT ON THE PART OF THE JUDGE TO DELEGATE HIS

  JUDICIAL FUNCTION. 

     "SENATOR TYDINGS.  I THINK THAT IS A GOOD POINT, JUDGE
HOFFMAN."  HEARINGS 93 - 94. 

IN LIGHT OF THE NEED FOR CONGRESS TO AVOID LANGUAGE SUGGESTING AN
UNCONSTITUTIONAL DELEGATION OF A JUDICIAL FUNCTION TO A MAGISTRATE, THE
AMBIGUOUS PROVISION OF 636 (B)--UNLIMITED BY THE PROVISIONS OF
SUBDIVISION (3)--SHOULD BE INTERPRETED TO PERMIT MAGISTRATES TO CONDUCT
EVIDENTIARY HEARINGS IN FEDERAL HABEAS CORPUS CASES, 2243
NOTWITHSTANDING, BECAUSE (1) TO THE EXTENT THE SUBJECT WAS EXPRESSLY
DISCUSSED IN THE LEGISLATIVE HISTORY, SUCH PERMISSION WAS INTENDED, AND
(2) SUCH AN INTERPRETATION WOULD SERVE THE TWO PRINCIPAL OBJECTIVES OF
THE ACT.  SEE NN. 2 AND 3, SUPRA.

        III 

THE FINAL LIMITATION OF THE ACT, THAT ADDITIONAL DUTIES ASSIGNED TO
MAGISTRATES MUST NOT BE "INCONSISTENT WITH THE CONSTITUTION," NEEDS
LITTLE DISCUSSION HERE.  THE COURT DOES NOT SUGGEST THAT THE CONDUCT OF
AN EVIDENTIARY HEARING, WHERE THE DISTRICT JUDGE RETAINS THE POWER TO
MAKE THE FINAL DECISION ON AN APPLICATION FOR A WRIT OF HABEAS CORPUS,
WOULD BE UNCONSTITUTIONAL EITHER UNDER ART.  III OR AS A MATTER OF DUE
PROCESS OF LAW.  WHERE THIS SITUATION OBTAINS, THE MAGISTRATE'S CONDUCT
OF THE HEARING WOULD BE CLEARLY CONSTITUTIONAL.  /17/ 

NOT ONLY WOULD HIS REPORT AND RECOMMENDATION TO THE DISTRICT JUDGE
BE SUBJECT TO AMENDMENT OR OUTRIGHT REJECTION, THE DISTRICT JUDGE
COULD, AT THE BEHEST OF THE HABEAS CORPUS PETITIONER OR ON HIS OWN
MOTION, CONDUCT HIS OWN EVIDENTIARY HEARING TO JUDGE FOR HIMSELF, FOR
EXAMPLE, THE CREDIBILITY OF WITNESSES IF HE DEEMS THEIR TESTIMONY
ESSENTIAL TO DISPOSITION OF THE APPLICATION.  TO THE EXTENT A PROBLEM
OF CONSTITUTIONAL MAGNITUDE MAY BE FORESEEN IN THE PARTICULARS OF THE
RULES ESTABLISHED BY A DISTRICT COURT, THOSE RULES CAN BE CONSTRUED TO
COMPORT WITH CONSTITUTIONAL REQUIREMENTS.  IN ANY EVENT, NOW THAT THE
COURT HAS CONSTRUED THE MAGISTRATES ACT CONTRARY TO A CLEAR LEGISLATIVE
INTENT, IT IS FOR THE CONGRESS TO ACT TO RESTATE ITS INTENTIONS IF ITS
DECLARED OBJECTIVES ARE TO BE CARRIED OUT.     /1/  TWO CIRCUITS HAVE
RULED THAT FEDERAL MAGISTRATES MAY CONDUCT EVIDENTIARY HEARINGS IN
FEDERAL HABEAS CORPUS CASES, O'SHEA V. UNITED STATES, 491 F.2D 774, 778
(CA1 1974); NOORLANDER V. CICCONE, 489 F.2D 642, 648 (CA8 1973); CF.
CAMPBELL V. U.S. DISTRICT COURT, 501 F.2D 196, 205 (CA9 1974), WHILE
TWO CIRCUITS HAVE ASSUMED MAGISTRATES HAVE THAT POWER, UNITED STATES EX
REL. GONZALEZ V. ZELKER, 477 F.2D 797, 798 (CA2 1973); PARNELL V.
WAINWRIGHT, 464 F.2D 735, 736 (CA5 1972).     /2/  THE COURT MAKES
CLEAR, ANTE, AT 473 N. 18, THAT IT SEES THE FUNCTION OF THE MAGISTRATE
IN DEALING WITH HABEAS CORPUS PETITIONS AS BEING NO MORE THAN THAT
PREVIOUSLY PERFORMED BY LAW CLERKS.  AS CHIEF JUDGE THEODORE LEVIN, OF
THE EASTERN DISTRICT OF MICHIGAN, TESTIFIED BEFORE THE SENATE JUDICIARY
COMMITTEE'S SUBCOMMITTEE ON IMPROVEMENTS IN JUDICIAL MACHINERY, WHICH
UNDER THE CHAIRMANSHIP OF SENATOR JOSEPH K. TYDINGS BEGAN THE
INVESTIGATIVE HEARINGS IN 1965 WHICH LED TO THE ENACTMENT OF THE ACT
THREE YEARS LATER, LAW CLERKS ARE NOT OVERWORKED, AND ARE BETTER ABLE
TO PERFORM SUCH TASKS.  "IN ANY EVENT, THIS IS A SOMEWHAT TEDIOUS JOB .
. . AND IS NOT A FUNCTION LIKELY TO ENTICE A SEASONED AND COMPETENT
LAWYER TO ACCEPT A MAGISTRATE'S JOB."  HEARINGS ON S. 3475 AND S. 945,
89TH CONG., 2D SESS.  (1966) AND 90TH CONG., 1ST SEESS.  (1967), P.61
(HEREINAFTER HEARINGS).  THE ACT SPECIFICALLY SOUGHT TO MAKE "THE
POSITION (OF MAGISTRATE) MORE ATTRACTIVE TO HIGHLY QUALIFIED
INDIVIDUALS."  S. REP. NO. 371, 90TH CONG., 1ST SESS., 11 (1967).  THE
DEPARTMENT OF JUSTICE AGREED THAT SUCH A LIMITED FUNCTION WOULD BE
INCONSISTENT WITH THE ACT'S PURPOSE, HEARINGS 130, AND CHIEF JUDGE
ROBERT C. BELLONI AND DEAN ROBERT B. YEGGE HAVE NOTED THAT THE
MAGISTRATES "SHOULD NOT BE SIMPLY HIGH-PAID LAW CLERKS."  REPORTS OF
THE CONFERENCE FOR DISTRICT COURT JUDGES, 59 F. R. D. 203, 221 (1973). 
TO LIMIT A MAGISTRATE TO A LAW CLERK'S FUNCTION SURELY UNDERCUTS WHAT
SENATOR TYDINGS STATED TO BE "(THE FIRST GOAL OF THE MAGISTRATES ACT .
. . TO (GIVE THE MAGISTRATE) QUALIFICATIONS AND A STATUTE HIGHER THAN
THOSE OF THE PRESENT U.S. COMMISSIONER."  HEARINGS 26. 

/3/  NO ONE WOULD DISPUTE THE HEAVY BURDEN ON DISTRICT COURTS
REPRESENTED BY THE APPLICATIONS FOR HABEAS CORPUS WRITS THEY RECEIVE, A
LARGE VOLUME OF WHICH HAS BEEN LONG RECOGNIZED AS "REPETITIOUS AND
PATENTLY FRIVOLOUS."  UNITED STATES V. HAYMAN, 342 U.S. 205, 212 (1952)
(FOOTNOTE OMITTED).  THE COURT WOULD MINIMIZE THE BURDEN OF THESE
APPLICATIONS AT THE EVIDENTIARY HEARING STAGE, ANTE, AT 473 N.20, BUT
THE BEGUILING SIMPLICITY OF ITS STATISTICAL ANALYSIS OBSCURES REALITY
AND IS ANTAGONISTIC TO THE INTEREST OF HABEAS PETITIONERS.  FIRST, TO
AVERAGE HEARING DAYS PER JUDGE PER YEAR EVENLY ACROSS THE COUNTRY FAILS
TO RECOGNIZE THE UNEVEN NUMBER OF HABEAS CORPUS APPLIACATIONS RECEIVED
BY THE VARIOUS DISTRICT COURTS.  IN HIS TESTIMONY AT THE SENATE
HEARINGS ON THE BILL CHIEF JUDGE EDWARD S. NORTHROP, OF THE DISTRICT OF
MARYLAND, REFLECTED THE UNEVENNESS EXPERIENCED BY HIS COURT, WHICH AT
ONE TIME HANDLED MORE "STATE PRISONER HABEAS CORPUS PETITIONS . . .
THAN ANY OTHER DISTRICT IN THE COUNTRY."  HEARINGS 52.  CLEARLY CHIEF
JUDGE NORTHROP'S BURDEN WOULD HAVE EXCEEDED "1.5 HEARINGS DAYS . . .
PER YEAR."  SECOND, THE HABEAS CORPUS APPLICATIONS WHICH ULTIMATELY
REACH THE HEARING STAGE DO NOT REPRESENT ALL THOSE WHICH MIGHT WARRANT
A HEARING.  SENATOR TYDINGS STATED:  "WE SAY THAT THE MAGISTRATE SHOULD
BE ABLE TO . . . (HOLD) PLENARY, DISCOVERY HEARINGS.  NOW, WHAT HAPPENS
. . . AS A PRACTICAL MATTER, YOU GET NO HEARINGS.  THE LAW CLERK
REVIEWS THE PAPERS . . . SO WE ARE GIVING THE INDIVIDUAL (PETITIONER)
ACTUALLY AN OPPORTUNITY . . . FOR MORE CONSIDERATION THAN HE GETS
NOW."  ID., AT 113.  FINALLY, EVEN IF NO MORE APPLICATIONS WOULD
WARRANT AN EVIDENTIARY HEARING, GIVEN THE OTHER BURDENS ON DISTRICT
JUDGES THOSE APPLICATIONS WHICH WOULD WARRANT HEARINGS WOULD RECEIVE
MORE PROMPT ATTENTION IF MAGISTRATES WERE TO HOLD THEM.  THE VIRTUES OF
SPEEDY JUSTICE NEED NOT BE ELABORATED HERE. 

/4/  AS NOTED IN PART II, INFRA, IT IS NOT URGED BY ANYONE THAT THE
MAGISTRATE MAY FINALLY DECIDE FACTS AFTER CONDUCTING AN EVIDENTIARY
HEARING.  THAT ULTIMATE DECISION IS, WITHOUT QUESTION, ONE RESERVED TO
THE DISTRICT JUDGE ALONE. 

/5/  HEARINGS ON H.R. 1600 AND H.R. 2055 BEFORE SUBCOMMITTEE NO. 1
OF THE HOUSE COMMITTEE ON THE JUDICIARY, 80TH CONG., 1ST SESS., 40
(1947). 

/6/  NO SUCH BARRIER IS SUGGESTED BY THE COURT TODAY, AND PROPERLY
FRAMED, DISTRICT COURT RULES WHICH SO PERMIT WOULD NOT CONTRAVENE THE
CONSTITUTIONAL RIGHTS OF FEDERAL HABEAS CORPUS PETITIONERS.  SEE PART
III, INFRA. 

/7/  THE TWO WORDS WERE IN FACT USED INTERCHANGEABLY IN THE
LEGISLATIVE HISTORY.  WHEN THE DRAFT BILL (S. 3475) USED THE WORD
"CONSIDERATION," THE SUBCOMMITTEE STAFF MEMORANDUM IN SUPPORT OF THE
BILL USED THE WORD "REVIEW."  HEARINGS 34.  WHEN THE DRAFT BILL WAS
CHANGED TO USE THE WORD "REVIEW," THE SENATE REPORT ACCOMPANYING THE
NEW BILL (S. 945) USED THE WORD CONSIDERATION."  S. REP. NO. 371, 90TH
CONG., 1ST SESS., 8 (1967). 

/8/  DESPITE THE ADDITION OF THIS LANGUAGE, THE HOUSE REPORT, IN
SETTING FORTH THE ENUMERATED EXAMPLES OF 636 (B), STATED OF SUBDIVISION
(3) ONLY THAT "(MAGISTRATES MAY ALSO BE ASSIGNED THE FUNCTION OF
REVIEWING AND REPORTING TO DISTRICT JUDGES UPON APPLICATIONS FOR
POSTCONVICTION RELIEF."  H.R. REP. N/. 1629, 90TH SONG., 2D SESS., 29
(1968).  NO LIMITATION ON THE NATURE OF THE REVIEW OR REPORT WAS
INDICATED.  THE LANGUAGE OF THE SENATE REPORT ALSO MADE NO REFERENCE TO
DECISIONS WHETHER THERE SHOULD BE HEARINGS.  S. REP. NO. 371, AT 26. 

/9/  THE COURT TWICE MAKES REFERENCE, ANTE, AT 471 N.11, AND 472
N.17, TO NOTE, DEVELOPMENTS IN THE LAW--FEDERAL HABEAS CORPUS, 83 HARV.
L. REV. 1038, 1188 - 1189, AND N.229 (1970), IN SUPPORT OF ITS
POSITION.  BOTH REFERENCES ARE MISTAKENLY ADDRESSED TO FINAL
DECISIONMAKING POWER, NOT THE POWER TO CONDUCT HEARINGS WHERE THE
DISTRICT JUDGE MAKES THE ULTIMATE DECISION.  THE NOTE ITSELF CONCEDES
THAT "(IT IS POSSIBLE TO ARGUE (UNDER 636 (B)) THAT A PLAN TO HAVE
MAGISTRATES ACTUALLY HEAR CASES IS VALID UNDER THE ACT."  ID., AT 1189
N.229.  IT THEN ARGUES THE OTHER WAY IN REFERENCE TO MATTERS AS TO
WHICH MAGISTRATES HAVE FINAL POWER OF DECISION.  SEE 28 U.S.C.  636 (A)
(3).  THAT IS THE ONLY POWER OF MAGISTRATES CIRCUMSCRIBED BY THE
PROCEDURES TO WHICH THE COURT REFERS, ANTE, AT 470 - 471, N.11.  TO THE
EXTENT THE COURT GOES BEYOND THE NOTE AND ARGUES THAT MAGISTRATES'
SERVICE AS SPECIAL MASTERS, 28 U.S.C. 636 (B) (1), IS LIMITED BY FED.
RULE CIV. PROC. 53 (B), THE EARLY STRICTURES UPON EMPLOYING SPECIAL
MASTERS WERE DEVELOPED BEFORE THE EXISTENCE OF THE JUDICIAL OFFICE OF
MAGISTRATE AND ARGUABLY SHOULD NOT BE APPLIED TO THAT NEW OFFICE.  SEE
GENERALLY COMMENT, AN AJUDICATIVE ROLE FOR FEDERAL MAGISTRATES IN CIVIL
CASES, 40 U. CHI.  L. REV. 584 (1973). 

/10 EVEN COUNSEL FOR RESPONDENT AGREES (CONTRARY TO THE COURT'S
CONCLUSION, ANTE, AT 470) THAT SUBDIVISION (3) "COULD HAVE BEEN MORE
CLEARLY EXPRESSED."  TR. OF ORAL ARG. 20. 

/11/  THE COMMENTATORS HAVE GENERALLY AGREED WITH THIS CONCLUSION. 
SHAPIRO, FEDERAL HABEAS CORPUS: A STUDY IN MASSACHUSETTS, 87 HARV. L.
REV. 321, 365 (1973); PETERSON, THE FEDERAL MAGISTRATE'S ACT: A NEW
DIMENSION IN THE IMPLEMENTAION OF JUSTICE, 56 IOWA L. REV. 62, 98
(1970); DOYLE (DISTRICT JUDGE AND CHARIMAN OF THE JUDICIAL CONFERENCE
COMMITTEE CHARGED WITH IMPLEMENTING THE ACT), IMPLEMENTING THE FEDERAL
MAGISTRATES ACT, 39 J.B.A. KAN. 25, 69 (1970); NOTE, PROPOSED
REFORMATION OF FEDERAL HABEAS CORPUS PROCEDURE:  USE OF FEDERAL
MAGISTRATES, 54 IOWA L. REV. 1147 (1969).  SO, TOO, WOULD THE JUDICIAL
CONFERENCE APPEAR TO BE IN AGREEMENT.  PROPOSED AMENDMENTS TO THE
PROPOSED RULES GOVERNING HABEAS CORPUS PROCEEDINGS FOR THE UNITED
STATES DISTRICT COURTS, COMMITTEE ON RULES OF PRATICE AND PROCEDURE,
RULE 11 (PRELIMINARY DRAFT, JAN. 1973).  CONGRESS HAS GIVEN THE
MAGISTRATES POWER TO CONDUCT TRIALS OF A LIMITED NATURE, 28 U.S.C. 636
(A) (3), WHICH GRANT OF POWER, CAREFULLY LIMITED, APPEARS NOT TO
CONTRAVENE ANY CONSTITUTIONAL PROHIBITION.  CF. PALMORE V. UNITED
STATES, 411 U.S. 389 (1973).  A FORTIORE GRANTING MAGISTRATES THE POWER
TO CONDUCT HEARINGS WHERE THE DISTICT JUDGE RETAINS ULTIMATE
DECISIONMAKING AUTHORITY COMPORTS WITH CONSTITUTIONAL REQUIREMENTS. 
CF. CAMPBELL V. U.S. DISTRICT COURT, 501 F.2D 196 (CA9 1974) (HEARINGS
ON MOTION TO SUPRESS); HARLEM RIVER CONSUMERS COOP., INC. V. ASSOCIATED
GROCERS OF HARLEM, INC., 54 F.R.D. 551 (SDNY 1972) (HEARINGS ON
DISCOVERY MOTION). 

JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL OF KENTUCKY ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WAS ED W. HANCOCK,
ATTORNEY GENERAL. 

JOSEPH G. GLASS ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
/1/ 

/1/  EVELLE J. YOUNGER, ATTORNEY GENERAL, JACK R. WINKLER, CHIEF
ASSISTANT ATTORNEY GENERAL, S. CLARK MOORE, ASSISTANT ATTORNEY GENERAL,
AND FREDERICK R. MILLAR, JR., AND SHUNJI ASARI, DEPUTY ATTORNEYS
GENERAL, FILED A BRIEF FOR THE UNITED STATE OF CALIFORNIA AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :




TAYLOR V. HAYES, 418 U.S. 488 


       TAYLOR V. HAYES, JUDGE

        CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY

        NO. 73 - 473.  ARGUED MARCH 18, 1974--DECIDED JUNE 26,
1974;

           494 S.W.2D 737, REVERSED AND REMANDED. 


    DURING A KENTUCKY MURDER TRIAL IN WHICH PETITIONER WAS COUNSEL

  FOR THE ACCUSED, RESPONDENT TRIAL JUDGE INFORMED PETITIONER ON

  NINE DIFFERENT OCCASIONS THAT HE WAS IN CONTEMPT OF COURT.  AT

  THE CONCLUSION OF THE TRIAL, RESPONDENT, IN THE JURY'S PRESENCE,

  MADE A STATEMENT CONCERNING PETITIONER'S TRIAL CONDUCT, AND,

  REFUSING PETITIONER'S REQUEST TO RESPOND, IMPOSED CONSECUTIVE

  SENTENCES ON NINE COUNTS OF CONTEMPT AGGREGATING ALMOST FOUR AND

  ONE-HALF YEARS' IMPRISONMENT, INCLUDING SENTENCES OF ONE YEARS'

 IMPRISONMENT ON EACH OF TWO COUNTS.  SUBSEQUENTLY, RESPONDENT

  AMENDED THE JUDGMENT TO ELIMINATE THE FIRST CONTEMPT CHARGE AND

  TO REDUCE EACH OF THE LATTER SENTENCES TO SIX MONTHS'

  IMPRISONMENT, BUT WAS SILENT ON WHETHER ALL OF THE SENTENCES WERE

  TO RUN CONCURRENTLY OR CONSECUTIVELY.  THE KENTUCKY COURT OF

  APPEALS AFFIRMED, BUT RULED THAT BECAUSE THE AMENDED JUDGMENT DID

  NOT DIRECT THAT THE SENCTENCES BE SERVED CONSECUTIVELY, THEY HAD

  TO BE SERVED CONCURRENTLY, THEREBY MAKING THE PENALTY ACTUALLY

  IMPOSED SIX MONTHS IN JAIL AND RENDERING CONSTITUTIONALLY

  PERMISSABLE THE CONVICTION AND SENTENCE WITHOUT A JURY TRIAL. 

HELD: 

     1.  SINCE NO MORE THAN A SIX-MONTH SENTENCE WAS ACTUALLY

  IMPOSED, THE EIGHT CONTEMPTS, WHETHER CONSIDERED SINGLY OR

  COLLECTIVELY, CONSTITUTED PETTY OFFENSES AND HENCE TRIAL BY JURY

  WAS NOT REQUIRED.  IT IS NOT IMPROPER TO PERMIT THE STATE, AS IN

  THIS INSTANCE, AFTER CONVICTION, TO REDUCE A SENTENCE TO SIX

  MONTHS OR LESS RATHER THAN RETRY THE CONTEMPT WITH A JURY, SINCE

  "CRIMINAL CONTEMPT IS NOT A CRIME OF THE SORT THAT REQUIRES THE

RIGHT TO JURY TRIAL REGARDLESS OF THE PENALTY INVOLVED."  BLOOM

  V. ILLINOIS, 391 U.S. 194, 211.  PP. 495 - 496. 

  2.  RESPONDENT'S CONDUCT, IN PROCEEDINGS SUMMARILY AFTER TRIAL

  TO PUNISH PETITIONER FOR ALLEGED CONTEMPT COMMITTED DURING THE

  TRIAL WITHOUT GIVING HIM AN OPPORTUNITY TO BE HEARD IN DEFENSE OR

  MITIGATION BEFORE HE WAS FINALLY ADJUGED GUILTY AND SENTENCE WAS

  IMPOSED, DOES NOT SQUARE WITH THE DUE PROCESS CLAUSE OF THE

  FOURTEENTH AMENDMENT.  GROPPI.  V. LESLIE, 404 U.S. 496. 

  REASONABLE NOTICE OF THE SPECIFIC CHARGES AND OPPORTUNITY TO BE

  HEARD ARE ESSENTIAL IN VIEW OF THE HEIGHTENED POTENTIAL FOR ABUSE

  POSED BY THE CONTEMPT POWER.  PP. 496 - 500. 

     3.  BECAUSE IT APPEARS FROM THE RECORD THAT "MARKED PERSONAL

  FEELINGS WERE PRESENT ON BOTH SIDES" AND THAT MARKS OF "UNSEEMLY

  CONDUCT (HAD) LEFT PERSONAL STINGS," MAYBERRY V. PENNSYLVANIA,

  400 U.S. 455, 464, ANOTHER JUDGE SHOULD HAVE BEEN SUBSTITUTED FOR

  RESPONDENT FOR THE PURPOSE OF FINALLY DISPOSING OF THE CONTEMPT

  CHARGES.  PP. 501 - 503. 

WHITE, J., DELIVERES THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, BLACKMUN, AND POWELL, JJ., AND IN PARTS II
AND III OF WHICH DOUGLAS AND MARSHALL, JJ., JOINED.  MARSHALL, J.,
FILED ON OPINION DISSENTING FROM PART I, POST, P. 504.  REHNQUIST, J.,
FILED A DISSENTING OPINION, POST, P. 523. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE CONCERNS THE VALIDITY OF A CRIMINAL
CONTEMPT JUDGMENT ENTERED AGAINST PETITIONER BY REASON OF CERTAIN
EVENTS OCCURING IN THE COURSE OF A CRIMINAL TRIAL IN THE COURTS OF THE
COMMONWEALTH OF KENTUCKY.  PETITIONER WAS RETAINED COUNSEL FOR NARVEL
TINSLEY, A NEGRO, WHO ALONG WIHT HIS BROTHER MICHAEL WAS CHARGED WITH
THE MURDERS OF TWO POLICE OFFICERS.  ACCORDING TO THE KENTUCKY COURT OF
APPEALS, THE "MURDERS CREATED SOME CONSIDERABLE SENSATION IN LOUISVILLE
. . . AND . . . NEWSPAPER COVERAGE WAS OVERLY ABUNDANT."  494 U.W. 2D
737, 739 (1973).  TRIAL BEFORE RESPONDENT TRIAL JUDGE BEGAN ON OCTOBER
18, 1971, AND WAS COMPLETED ON OCTOBER 29. 

ON NINE DIFFERENT OCCASSIONS DURING THIS TURBULENT TRIAL,
RESPONDENT, OUT OF THE HEARING OF THE JURY AND MOST OFTEN IN CHAMBERS,
INFORMED PETITIONER THAT HE WAS IN CONTEMPT OF COURT.  THE FIRST CHARGE
WAS IMMEDIATELY REDUCED TO A WARNING AND NO SENTENCE WAS IMPOSED AT THE
TIME OF CHARGE IN THAT OR ANY OTHER INSTANCE.  PETITIONER WAS PERMITTED
TO RESPOND TO MOST, BUT NOT ALL, OF THE CHARGES.  /1/ 

AT THE CONCLUSION OF THE TRIAL ON OCTOBER 29 AND AFTER A GUILTY
VERDICT HAD BEEN RETURNED, RESPONDENT, IN THE PRESENCE OF THE JURY,
MADE A STATEMENT CONCERNING PETITIONER'S TRIAL CONDUCT.  REFUSING
PETITIONER'S REQUEST TO RESPOND AND DECLARING THAT "I HAVE YOU" ON NINE
COUNTS, RESPONDENT PROCEEDED TO IMPOSE A JAIL TERM ON EACH COUNT
TOTALING ALMOST FOUR AND ONE-HALF YEARS: 30 DAYS ON THE FIRST COUNT, 60
DAYS ON THE SECOND, 90 DAYS ON THE THIRD, SIX MONTHS ON COUNTS FOUR,
FIVE, SIX AND SEVEN, AND ONE YEAR EACH ON COUNTS EIGHT AND NINE, "ALL
TO RUN CONSECUTIVE."  /2/  A FEW DAYS LATER, PETITIONER WAS ALSO BARRED
FROM PRACTICING LAW BY RESPONDENT IN HIS DIVISION OF THE CRIMINAL
BRANCH OF THE JEFFERSON CIRCUIT COURT. 

WHILE PETITIONER'S APPEAL WAS PENDING, ON MARCH 2, 1972, RESPONDENT
ENTERED A CORRECTED JUDGMENT CONTAINING A CERTIFICATE" WHICH DESCRIBES
THE NINE CHARGES OF CONTEMPT /3/  BUT ELIMINATED THE FIRST CHARGE AS
HAVING BEEN REDUCED TO A WARNING AND REDUCED THE SENTENCE ON EACH OF
THE LAST TWO COUNTS TO SIX MONTHS IN JAIL.  THE CORRECTED JUDGMENT WAS
SILENT AS TO WHETHER THE SENTENCES WERE TO RUN CONCURRENTLY OR
CONSECUTIVELY. 

HC#493 

THE KENTUCKY COURT OF APPEALS AFFIRMED,HOLDING THAT PETITIONER WAS
GUILTY OF EACH AND EVERY COMTEMPT CHARGED.  IN ITS VIEW, PETITIONER'S
ACTIONS "WERE DELIBERATE, DELAYING, OR PLANNED DISRUPTIVE TACTICS WHICH
DID IN FACT CREATE SUCH AN ATMOSHERE IN THE COURT THAT HE, IF PERMITTED
TO CONTINUE, WOULD HAVE APPEARED TO BE THE STAR PERFORMER IN THE CENTER
RING OF A THREE-RING CIRCUS."  494 S.W. 2D, AT 740.  PETITIONER HAD
COMMITTED "INNUMERABLE ACTS . . . WHICH CLEARLY REFLECTED HIS CONTEMPT
FOR THE COURT AS WELL AS THE JUDICIAL SYSTEM OF THIS COMMONWEALTH . .
."  AND HAD BEEN "OVERBEARING, CONTEMPTUOUS, AND OBNOXIOUSLY PERSISTENT
IN HIS QUESTIONS AND OBJECTIONS . . ."  ID., AT 741.  THE COURT OF
APPEALS ALSO CONCLUDED THAT PETITIONER HAD NOT LAUNCHED ANY "PERSONAL
ATTACK" ON THE TRIAL JUDGE AND THAT THE JUDGE HAD NEITHER CONDUCTED
HIMSELF AS AN "ACTIVIST SEEKING COMBAT" NOR HAD BECOME SO PERSONALLY
EMBROILED THAT HE WAS DISQUALIFIED TO SIT IN JUDGMENT ON THE CHARGES OF
CONTEMPT, ALTHOUGH HIS REMARKS PRIOR TO ENTERING JUDGMENT OF CONTEMPT
AT THE CONCLUSION OF THE TRIAL WERE "INAPPROPRIATE."  ID., AT 744 -
745. 

THE COURT OF APPEALS JUDGMENT DID NOT "DIRECT THAT THE SENTENCES, AS
AMENDED, BE SERVED CONSECUTIVELY . . . THEY MUST BE SERVED
CONCURRENTLY."  ID., AT 746.  THUS, "(THE PENALTY ACTUALLY IMPOSED ON
DANIEL TAYLOR (WAS) SIX MONTHS IN JAIL," AND HIS CONVICTION AND
SENTENCE WITHOUT A JURY TRIAL WERE DEEMED CONSTITUTIONALLY
PERMISSABLE.  ID., AT 747.  THE KENTUCKY COURT OF APPEALS RULED,
HOWEVER, THAT IT HAD EXCLUSIVE AUTHORITY TO DISCIPLINE OR DISBAR
ATTORNEYS AND THAT, IN ANY EVENT, THE RULE IN KENTUCKY SINCE 1917 HAD
BEEN THAT SUSPENSION FROM PRACTICE WAS NOT A PERMISSABLE PUNISHMENT FOR
CRIMINAL CONTEMPT.  THE ORDER PROHIBITING PETITIONER FROM PRACTICING IN
THE JEFFERSON CIRCUIT COURT, CRIMINAL BRANCH, SECOND DIVISION, WAS
THEREFORE REVERSED.  WE GRANTED CERTIORARI LIMITED TO SPECIFIED ISSUES,
414 U.S. 1063 (1973). 

        I 

PETITIONER CONTENDS THAT ANY CHARGE OF CONTEMPT OF COURT, WITHOUT
EXCEPTION, MUST BE TRIED TO A JURY.  QUITE TO THE CONTRARY, HOWEVER,
OUR CASES HOLD THAT PETTY CONTEMPT LIKE OTHER PETTY CRIMINAL OFFENSES
MAY BE TRIED WITHOUT A JURY AND THAT CONTEMPT OF COURT IS A PETTY
OFFENSE WHEN THE PENALTY ACTUALLY IMPOSED DOES NOT EXCEED SIX MONTHS OR
A LONGER PENALTY HAS NOT BEEN EXPRESSLY AUTHORIZED BY STATUTE.  CHEFF
V. SCHNACKENBERG, 384 U.S.. 373 (1966); BLOOM V. ILLINOIS, 391 U.S. 194
(1968); DYKE V. TAYLOR IMPLEMENT MFG. CO., INC. 391 U.S. 216 (1968);
FRANK V. UNITED STATES, 395 U.S. 147 (1969); BALDWIN V. NEW YORK, 399
U.S. 66 (1970).  HENCE, ALTHOUGH PETITIONER WAS ULTIMATELY FOUND GUILTY
AND SENTENCED SEPARATELY ON EIGHT COUNTS OF CONTEMPT, THE SENTENCES
WERE TO RUN CONCURRENTLY AND WERE, AS THE KENTUCKY COURT OF APPEALS
HELD, EQUIVALENT TO A SINGLE SENTENCE OF SIX MONTHS.  CF. CODISPOTI V.
PENNSYLVANIA, POST, P. 506.  THE ORIGINAL SENTENCES IMPOSED ON THE
SEPARATE COUNTS WERE TO RUN CONSECUTIVELY AND TOTALED ALMOST FOUR AND
ONE-HALF YEARS, WITH TWO INDIVIDUAL COUNTS EACH CARRYING A YEAR'S
SENTENCE.  BUT THE TRIAL COURT ITSELF ENTERED AN AMENDED JUDGMENT WHICH
WAS UNDERSTOOD BY THE KENTUCKY COURT OF APPEALS TO IMPOSE NO MORE THAN
A SIX-MONTH SENTENCE.  THE EIGHT CONTEMPTS, WHETHER CONSIDERED SINGLY
OR COLLECTIVELY, THUS CONSTITUTED PETTY OFFENSES, AND TRIAL BY JURY WAS
NOT REQUIRED. 

IT IS ARGUED THAT A STATE SHOULD NOT BE PERMITTED, AFTER CONVICTION,
TO REDUCE THE SENTENCE TO LESS THAN SIX MONTHS AND THEREBY OBVIATE A
JURY TRIAL.  THE THRUST OF OUR DECISIONS, HOWEVER, IS TO THE CONTRARY:
IN THE ABSENCE OF LEGISLATIVE AUTHORIZATION OF SERIOUS PENALTIES FOR
CONTEMPT, A STATE MAY CHOOSE TO TRY ANY CONTEMPT WITHOUT A JURY IF IT
DETERMINES NOT TO IMPOSE A SENTENCE LONGER THAN SIX MONTHS.  WE DISCERN
NO MATERIAL DIFFERENCE BETWEEN THIS CHOICE AND PERMITTING THE STATE,
AFTER CONVICTION, TO REDUCE A SENTENCE TO SIX MONTHS OR LESS RATHER
THAN TO RETRY THE CONTEMPT WITH A JURY.  CF. CHEFF V. SCHNACKENBERG,
SUPRA, AT 380.  IN EITHER CASE, THE STATE ITSELF HAS DETERMINED THAT
THE CONTEMPT IS NOT SO SERIOUS AS TO WARRANT MORE THAN A SIX-MONTH
SENTENCE.  WE REMAIN FIRMLY COMMITTED TO THE PROPOSITION THAT "CRIMINAL
CONTEMPT IS NOT A CRIME OF THE SORT THAT REQUIRES THE RIGHT TO JURY
TRIAL REGARDLESS OF THE PENALTY INVOLVED."  BLOOM V. ILLINOIS, SUPRA,
AT 211; CF. ARGERSINGER V. HAMLIN, 407 U.S. 25, 30 (1972). 

        II 

WE ARE MORE PERSUADED BY PETITONER'S CONTENTION THAT HE WAS ENTITLED
TO MORE OF A HEARING AND NOTICE THAN HE RECEIVED PRIOR TO FINAL
CONVICTION AND SENTENCE.  IN EACH INSTANCE DURING THE TRIAL WHEN
RESPONDENT CONSIDERED PETITIONER TO BE IN CONTEMPT, PETITIONER WAS
INFORMED OF THAT FACT AND, IN MOST INSTANCES, HAD OPPORTUNITY TO
RESPOND TO THE CHARGE AT THAT TIME.  IT IS QUITE TRUE, AS THE KENTUCKY
COURT OF APPEALS HELD, THAT "(THE CONTEMPT CITATIONS AND THE SENTENCES
COMING AT THE END OF THE TRIAL WERE NOT AND COULD NOT HAVE BEEN A
SURPRISE TO TAYLOR, BECAUSE UPON EACH OCCASION AND IMMEDIATELY
FOLLOWING THE CHARGED ACT OF CONTEMPT THE COURT INFORMED TAYLOR THAT HE
WAS AT THE TIME IN CONTEMPT OF COURT."  494 S.W. 2D, AT 741 - 742.  BUT
NO SENTENCE HAS IMPOSED DURING THE TRIAL, AND IT DOES NOT APPEAR TO US
THAT ANY FINAL ADJUDICATION OF CONTEMPT WAS ENTERED UNTIL AFTER THE
VERDICT WAS RETURNED.  IT WAS THEN THAT THE COURT PROCEEDED TO DESCRIBE
AND CHARACTERIZE PETITIONER'S VARIOUS ACTS DURING TRIAL AS
CONTEMPTUOUS, TO FIND HIM GUILTY OF NINE ACTS OF CONTEMPT, AND TO
SENTENCE HIM IMMEDIATELY FOR EACH OF THOSE ACTS. 

IT IS ALOS PLAIN FROM THE RECORD THAT WHEN PETITONER SOUGHT TO
RESPOND TO WHAT THE KENTUCKY COURT OF APPEALS REFERRED TO AS THE TRIAL
COURT'S "DECLARATION OF A CHARGE AGAINST TAYLOR BASED UPON THE JUDGE'S
OBSERVATIONS" DURING TRIAL,  /4/  RESPONDENT INFORMED HIM THAT "(YOU'RE
NOT RESPONDING TO ME ON ANYTHING" AND EVEN INDICATED THAT PETITIONER
MIGHT BE GAGGED IF HE INSISTED ON DEFENDING HIMSELF.  /5/  THE TRIAL
COURT THEN PROCEEDED WITHOUT FURTHER FORMALITY TO IMPOSE CONSECUTIVE
SENTENCES TOTALING ALMOST FOUR AND ONE-HALF YEARS IN THE COUNTY JAIL
AND TO BAR PETITIONER FOREVER FROM PRACTICING BEFORE THE COURT IN WHICH
THE CASE AT ISSUE HAD BEEN TRIED. 

THIS PROCEDURE DOES NOT SQUARE WITH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  WE ARE NOT CONCERNED HERE WITH THE TRIAL JUDGE'S
POWER, FOR THE PURPOSE OF MAINTAINING ORDER IN THE COURTROOM, TO PUNISH
SUMMARILY AND WITHOUT NOTICE OR HEARING CONTEMPTUOUS CONDUCT COMMITTED
IN HIS PRESENCE AND OBSERVED BY HIM.  EX PARTE TERRY, 128 U.S. 289
(1888).  THE USUAL JUSTIFICATION OF NECESSITY, SEE OFFUTT V. UNITED
STATES, 348 U.S. 11, 14 (1954), IS NOT NEARLY SO COGENT WHEN FINAL
ADJUDICATION AND SENTENCE ARE POSTPONED UNTIL AFTER TRIAL.  /6/  OUR
DECISIONS ESTABLISH THAT SUMMARY PUNISHMENT NEED NOT ALWAYS BE IMPOSED
DURING TRIAL IF IT IS TO BE PERMITTED AT ALL.  IN PROPER CIRCUMSTANCES,
PARTICULARLY WHERE THE OFFENDER IS A LAWYER REPRESENTING A CLIENT ON
TRIAL, IT MAY BE POSTPONED UNTIL THE CONCLUSION OF THE PROCEEDINGS. 
SACHER V. UNITED STATES, 343 U.S. 1 (1952); CF. MAYBERRY V.
PENNSYLVANIA, 400 U.S. 455, 463 (1971).  BUT SACHER NOTED THAT
"(SUMMARY PUNISHMENT ALWAYS, AND RIGHTLY, IS REGARDED WITH DISFAVOR . .
. ."  343 U.S., AT 8.  "(WE HAVE STATED TIME AND AGAIN THAT REASONABLE
NOTICE OF A CHARGE AND AN OPPORTUNITY TO BE HEARD IN DEFENSE BEFORE
PUNISHMENT IS IMPOSED ARE 'BASIC IN OUR SYSTEM OF JURISPRUDENCE.'" 
GROPPI V. LESLIE, 404 U.S. 496, 502 (1972), QUOTING IN RE OLIVER, 333
U.S. 257, 273 (1948).  EVEN WHERE SUMMARY PUNISHMENT FOR CONTEMPT IS
IMPOSED DURING TRIAL, "THE CONTEMNOR HAS NORMALLY BEEN GIVEN AN
OPPORTUNITY TO SPEAK IN HIS OWN BEHALF IN THE NATURE OF A RIGHT OF
ALLOCUTION."  GROPPI V. LESLIE, SUPRA, AT 504 (AND CASES CITED
THEREIN).  /7/ 

ON THE OTHER HAND, WHERE CONVICTION AND PUNISHMENT ARE DELAYED, "IT
IS MUCH MORE DIFFICULT TO ARGUE THAT ACTION WITHOUT NOTICE OR HEARING
OF ANY KIND IS NECESSARY TO PRESERVE ORDER AND ENABLE (THE COURT) TO
PROCEED WITH ITS BUSINESS."  IBID.  AS WE NOTED IN GROPPI, THE
CONTEMNORS IN THE SACHER CASE WRE "GIVEN AN OPPORTUNITY TO SPEAK" AND
THE "TRIAL JUDGE WOULD, NO DOUBT(,) HAVE MODIFIED HIS ACTION HAD THEIR
STATEMENTS PROVED PERSUASIVE."  ID., AT 506, AND N. 11.  GROPPI
COUNCILS THAT BEFORE AN ATTORNEY IS FINALLY ADJUDICATED IN CONTEMPT AND
SENTENCED AFTER TRIAL FOR CONDUCT DURING TRIAL, HE SHOULD HAVE
REASONABLE NOTICE OF THE SPECIFIC CHARGES AND OPPORTUNITY TO BE HEARD
IN HIS WON BEHALF.  ##HC499 THIS IS NOT TO SAY, HOWEVER, THAT A FULL
SCALE TRIAL IS APPROPRIATE.  USUALLY, THE EVENTS HAVE OCCURED BEFORE
THE JUDGE'S OWN EYES, AND A REPORTER'S TRANSCRIPT IS AVAILABLE.  BUT
THE CONTEMNOR MIGHT AT LEAST URGE, FOR EXAMPLE, THAT THE BEHAVIOR AT
ISSUE WAS NOT CONTEMPT BUT THE ACCEPTABLE CONDUCT OF AN ATTORNEY
REPRESENTING HIS CLIENT; OR, HE MIGHT PRESENT MATTERS IN MITIGATION OR
OTHERWISE ATTEMPT TO MAKE AMENDS WITH THE COURT.  CF. GROPPI V. LELLIE,
SUPRA. AT 503, 506 N.11.  /8/ 

THESE PROCEDURES ARE ESSENTIAL IN VIEW OF THE HEIGHTENED POTENTIAL
FOR ABUSE POSED BY THE CONTEMPT POWER.  BLOOM V. ILLINOIS, 391 U.S., AT
202; SACHER V. UNITED STATES, 343 U.S., AT 12.  THE PROVISION OF
FUNDAMENTAL DUE PROCESS PROTECTIONS FOR CONTEMNORS ACCORDS WITH OUR
HISTORIC NOTIONS OF ELEMENTARY FAIRNESS.  WHILE WE HAVE NO DESIRE "TO
IMPRISON THE DISCRETION OF JUDGES WITHIN RIGID MECHANICAL RULES,"
OFFUTT V. UNITES STATES, 348 U.S., AT 15, WE REMAIN UNPERSUADED THAT
"THE ADDITIONAL TIME AND EXPENSE POSSIBLY INVOLVED . . . WILL SERIOUSLY
HANDICAP THE EFFECTIVE FUNCTIONING OF THE COURTS."  BLOOM V. ILLINOIS,
SUPRA, AT 208 - 209.  DUE PROCESS CANNOT BE MEASURED IN MINUTES AND
HOURS OR DOLLARS AND CENTS.  FOR THE ACCUSED CONTEMNOR FACING A JAIL
SENTENCE, HIS "LIBERTY IS VALUABLE AND MUST BE SEEN AS WITHIN THE
PROTECTION OF THE FOURTEENTH AMENDMENT.  ITS TERMINATION CALLS FOR SOME
ORDERLY PROCESS, HOWEVER INFORMAL."  MORRISSEY V. BREWER, 408 U.S. 471,
482 (1972). 

BECAUSE THESE MINIMUM REQUIREMENTS OF DUE PROCESS OF LAW WERE NOT
EXTENDED TO PETITIONER IN THIS CASE, THE CONTEMPT JUDGMENT MUST BE SET
ASIDE.  /9/

  III 

WE ARE ALSO CONVINCED THAT IF PETITIONER IS TO BE TRIED AGAIN, HE
SHOULD NOT BE TRIED BY RESPONDENT.  WE AGREE WITH THE KENTUCKY COURT OF
APPEALS THAT PETITIONER'S CONDUCT DID NOT CONSTITUTE THE KIND OF
PERSONAL ATTACK ON RESPONDENT THAT, REGARDLESS OF HIS REACTION OR LACK
OF IT, HE WOULD BE "(UNLIKELY TO MAINTAIN THAT CALM DETACHMENT
NECESSARY FOR FAIR ADJUDICATION."  MAYBERRY V. PENNSYLVANIA, 400 U.S.,
AT 465. 

BUT CONTEMPTUOUS CONDUCT, THOUGH SHORT OF PERSONAL ATTACK, MAY STILL
PROVOKE A TRIAL JUDGE AND SO EMBROIL HIM IN CONTROVERSY THAT HE CANNOT
"HOLD THE BALANCE NICE, CLEAR AND TRUE BETWEEN THE STATE AND THE ACUSED
. . . ."  TUMEY V. OHIO, 273 U.S. 510, 532 (1927).  IN MAKING THIS
ULTIMATE JUDGMENT, THE INQUIRY MUST BE NOT ONLY WHETHER THERE WAS
ACTUAL BIAS ON RESPONDENT'S PART, BUT ALSO WHETHER THERE WAS "SUCH A
LIKELIHOOD OF BIAS OR AN APPEARANCE OF BIAS THAT THE JUDGE WAS UNABLE
TO HOLD THE BALANCE BETWEEN VINDICATING THE INTERESTS OF THE COURT AND
THE INTERESTS OF THE ACCUSED."  UNGAR V. SARAFITE, 376 U.S. 575, 588
(1964).  "SUCH A STRINGENT RULE MAY SOMETIMES BAR TRIAL BY JUDGES WHO
HAVE NO ACTUAL BIAS AND WHO WOULD DO THEIR VERY BEST TO WEIGH THE
SCALES OF JUSTICE EQUALLY BETWEEN CONTENDING PARTIES," BUT DUE PROCESS
OF LAW REQUIRES NO LESS.  IN RE MURCHISON, 349 U.S. 133, 136 (1955). 
WITH THESE CONSIDERATIONS IN MIND, WE HAVE EXAMINED THE RECORD IN THIS
CASE, AND IT APPEARS TO US THAT RESPONDENT DID BECOME EMBROILED IN A
RUNNING CONTROVERSY WITH PETITIONER.  MOREOVER, AS THE TRIAL
PROGRESSED, THERE WAS A MOUNTING DISPLAY OF AN UNFAVORABLE PERSONAL
ATTITUDE TOWARD PETITIONER, HIS ABILITY, AND HIS MOTIVES, SUFFICIENTLY
SO THAT THE CONTEMPT ISSUE SHOULD HAVE BEEN FINALLY ADJUDICATED BY
ANOTHER JUDGE. 

EARLY IN THE TRAIL RESPONDENT CAUTIONED PETITIONER AGAINST "PUTTING
ON A SHOW" AND ADDED THAT "IF YOU GIVE HIM AN INCH, HE'LL TAKE A MILE. 
I MIGHT AS WELL SIT ON HIM NOW."  APP. 31, 40.  IN ANOTHER OCCASION
WHEN PETITIONER ASSERTED THAT HIS PURPOSE WAS TO DEFEND HIS CASE,
RESPONDENT REPLIED, I'M NOT SURE."  ID., AT 61.  WHEN PETITIONER
REMARKED THAT HE HAD FIVE MONTHS WRAPPED UP IN THE CASE, RESPONDENT
RETORTED THAT "(BEFORE IT'S OVER, YOU MIGHT HAVE A LOT MORE THAN
THAT."  ID., AT 98.  ON THE OTHER HAND, PETITIONER COMPLAINED OF
RESPONDENT'S "OVERBEARING CONTENTIOUSNESS IN REGARD TO ME, BOTH BY
PHRASE AND BY ITS UTTERANCES," AND ASSERTED THAT THE COURT WAS
PREJUDICING THE TRIAL OF HIS CASE.  ID., AT 60.  RESPONDENT WAS
LIKEWISE SAID TO BE "USING (THE) BRUTE POWER OF YOUR OFFICE" IN SAYING
THAT PETITIONER WAS DAMAGING HIS CLIENT.  ID., AT 61.  ON ANOTHER
OCCASION, RESPONDENT UNDERSTOOD PETITIONER TO BE ASSERTING THAT HE,
RESPONDENT, HAD RIGGED THE JURY.  ID., AT 85 - 86. 

THAT RESPONDENT HAD REACTED STRONGLY TO PETITIONER'S CONDUCT
THROUGHOUT THE 10-DAY TRIAL CLEARLY EMERGED IN THE STATEMENT WHICH HE
MADE PRIOR TO SENTENCING PETITIONER AND WHICH THE COURT OF APPEALS
CHARACTERIZED AS "INAPPROPRIATE."  THERE HE SAID PETITIONER HAD PUT ON
"THE WORST DISPLAY" HE HAD SEEN IN MANY YEARS AT THE BAR--"(AS FAR AS A
LAWYER IS CONCERNED, YOU'RE NOT."  ID., AT 28.  FURTHERMORE, RESPONDENT
DENIED PETITIONER THE OPPORTUNITY TO MAKE ANY STATEMENT AT THAT TIME,
THREATENED TO GAG HIM AND FORTHWITH SENTENCED HIM TO ALMOST FOUR AND
ONE-HALF YEARS IN JAIL, NOT TO MENTION LATER DISBARRING HIM FROM
FURTHER PRACTICE IN HIS COURT.  HE ALSO REFUSED TO GRANT HIM BAIL
PENDING APPEAL.  WE ASSUME FOR THE PURPOSES OF THIS CASE THAT EACH OF
THE CHARGED ACTS WAS CONTEMPTUOUS; NEVERTHELESS, A SENTENCE OF THIS
MAGNITUDE REFLECTS THE EXTENT TO WHICH THE RESPONDENT BECAME PERSONALLY
INVOLVED.  CF. OFFUTT V. UNITED STATES, 348 U.S., AT 17. 

FROM OUR OWN READING OF THE RECORD, WE HAVE CONCLUDED THAT "MARKED
PERSONAL FEELINGS WERE PRESENT ON BOTH SIDES" AND THAT THE MARKS OF
"UNSEEMLY CONDUCT (HAD) LEFT PERSONAL STINGS," MAYBERRY V.
PENNSYLVANIA, 400 U.S., AT 464.  A FELLOW JUDGE SHOULD HAVE BEEN
SUBSTITUTED FOR THE PURPOSE OF FINALLY DISPOSING OF THE CHARGES OF
CONTEMPT MADE BY RESPONDENT AGAINST PETITIONER.  RESPONDENT RELIES ON
UNGAR V. SARAFITE, SUPRA, BUT WE WERE IMPRESSED THERE WITH THE FACT
THAT THE JUDGE "DID NOT PURPORT TO PROCEED SUMMARILY DURING OR AT THE
CONCLUSION OF THE TRIAL, BUT GAVE NOTICE AND AFFORDED AN OPPORTUNITY
FOR A HEARING WHICH WAS CONDUCTED DISPASSIONATELY AND WITH A DECORUM
BEFITTING A JUDICIAL PROCEEDING."  376 U.S., AT 588.  /10/ 

NOTHIHG WE HAVE SAID HERE SHOULD BE CONSTRUED TO CONDONE THE TYPE OF
CONDUCT DESCRIBED IN THE OPINION OF THE KENTUCKY COURT OF APPEALS AND
FOUND BY THAT COURT TO HAVE BEEN ENGAGED IN BY PETITIONER.  BEHAVIOR OF
THIS NATURE HAS NO PLACE IN THE COURTROOM WHICH, IN A FREE SOCIETY, IS
A FORUM FOR THE COURTEOUS AND REASONED PURSUIT OF TRUTH AND JUSTICE. 

THE JUDGMENT OF THE KENTUCKY COURT OF APPEALS IS REVERSED AND THE
CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

              SO ORDERED. 

/1/ WHEN FOR THE SIXTH TIME PETITIONER WAS INFORMED THAT HE WAS IN
CONTEMPT, HE SOUGHT TO REPLY AND WAS INFORMED HE COULD DO SO AT THE
NEXT RECESS.  NOTHING MORE APPEARS IN THE RECORD WITH RESPECT TO THIS
EPISODE.  ON THE SEVENTH OCCASION, PETITIONER UNDERTOOK TO RESPOND BUT
RESPONDENT LEFT THE CHAMBERS, AND ANY FURTHER DISCUSSION OF THIS CHARGE
WAS APPARENTLY ORDERED EXCLUDED FROM THE RECORD BY RESPONDENT. 
PETITIONER WAS DENIED THE RIGHT TO RESPOND WHEN HE WAS INFORMED OF THE
EIGHTH CHARGE OF CONTEMPT.  AS FAR AS THE RECORD SHOWS, THERE WAS
NEITHER A REQUEST TO RESPOND NOR DENIAL OF RESPONSE IN CONNECTION WITH
THE NINTH CONTEMPT CHARGE. 

/2/  THE FOLLOWING IS THE COMPLETE TRANSCRIPT OF THE PROCEEDINGS ON
OCTOBER 29, 1971, WITH RESPECT TO THE CONTEMPT CHARGES AGAINST
PETITIONER: 

"THE COURT: MR. TAYLOR, THE COURT HAS SOMETHING TO TAKE UP WITH YOU
SIR, AT THIS TIME. 

"MR. TAYLOR:  WELL, I'LL BE RIGHT HERE, JUDGE. 

"THE COURT:  I'VE FOR TWO WEEKS SIT HERE AND LISTEN TO YOU.  NOW,
YOU'RE GOING TO LISTEN TO ME. STAND RIGHT HERE, SIR. 

"FOR TWO WEEKS I'VE SEEN YOU PUT ON THE WORST DISPLAY I'VE EVER SEEN
AN ATTORNEY IN MY TWO YEARS OF THIS COURT, AND 15 YEARS OF PRACTICING
LAW.  YOU'VE QUOTED THAT YOU COULDN'T DO IT ANY OTHER WAY.  YOU KNOW
OUR COURT SYSTEM IS COMPLETELY BASED UPON, PARTICULARLY CRIMINAL LAW,
THE DOCTRINE OF REASONSABLE DOUBT.  THAT'S EXACTLY WHAT IT MEANS,
REASON.  IT DOESN'T MEAN THAT IT'S BASED UPON DECEIT; IT DOESN'T MEAN
THAT IT'S BASED UPON TRICKERY; IT DOESN'T MEAN IT'S BASED UPON PLANNED
CONFUSION. 

"SOMETIMES I WONDER REALLY WHAT YOUR MOTIVE IS, IF YOU'RE REALLY
INTERESTED IN THE JUSTICE OF YOUR CLIENT, OR IF YOU HAVE SOME ULTERIOR
MOTIVE, IF YOU'RE INTERESTED IN DAN TAYLOR OR NARVEL TINSLEY. 

"IT'S A SHAME THAT THIS COURT HAS TO DO SOMETHING THAT THE BAR
ASSOCIATION OF THIS STATE SHOULD HAVE DONE A LONG TIME AGO. 

"AS FAR AS A LAWYER IS CONCERNED, YOU'RE NOT.  I WANT THE JURY TO
HEAR THIS; I WANT THE LAW STUDENTS OF THIS COMMUNITY TO HEAR THIS, THAT
YOU'RE NOT THE RULE, YOU'RE THE EXCEPTION TO THE RULE.-- 

"MR. TAYLOR: (INTERRUPTING) THANK YOU. 

"THE COURT: I WANT THEM TO UNDERSTAND THAT YOUR ACTIONS SHOULD NOT
BE THEIR ACTIONS BECAUSE THIS IS NOT THE WAY THAT A COURT IS
CONDUCTED.  THIS IS NOT THE WAY AN OFFICER OF A COURT SHOULD CONDUCT
ITSELF. 

"MR. TAYLOR:  I WOULD RESPOND TO YOU, SIR-- 

"THE COURT: (INTERRUPTING) YOU'RE NOT RESPONDING TO ME ON ANYTHING. 

"MR. TAYLOR: (INTERRUPTING) OH YES, I WILL. 

"THE COURT: YES, YOU'RE NOT, EITHER. 

"MR. TAYLOR: YES, I WILL. 

"THE COURT:  THE SENTENCE IS ON COUNT ONE-- 

"MR. TAYLOR:  (INTERRUPTING) UNLESS YOU INTEND TO GAG ME-- 

"THE COURT:  (INTERPOSING) I'LL DO THAT-- 

"MR. TAYLOR:  (INTERPOSING) MY LAWYERS WILL RESPOND TO YOU-- 

"THE COURT:  (INTERPOSING) I'LL DO THAT, SIR. 

"MR. TAYLOR: MY LAWYERS WILL RESPOND TO YOU, SIR. 

"THE COURT:  YOU BE QUIET, OR YOU'LL-THERE WILL BE SOME MORE
CONTEMPTS-- 

"MR. TAYLOR:  (INTERRUPTING) NO, YOU HEARD WHAT I SAID. 

"THE COURT: I HAVE YOU NINE COUNTS.  FIRST COUNT, 30 DAYS IN JAIL;
SECOND COUNT, 60 DAYS IN JAIL; THIRD COUNT, 90 DAYS IN JAIL; FOURTH
COUNT, SIX MONTHS IN JAIL; FIFTH COUNT, SIX MONTHS IN JAIL; SIXTH
COUNT, SIX MONTHS IN JAIL; SEVENTH COUNT, SIX MONTHS IN JAIL; EIGHTH
COUNT, ONE YEAR IN JAIL; NINTH COUNT, ONE YEAR IN JAIL, ALL TO RUN
CONSECUTIVE. 

"TAKE HIM AWAY. 

"MR. TAYLOR: WE WILL ANSWER YOU IN COURT. 

"THE COURT: I'D BE GLAD TO SEE YOU."  APP. 28 - 29. 

/3/  THE NINE CHARGES OF CONTEMPT WERE DESCRIBED IN THE CERTIFICATE
AS FOLLOWS:  "CONTEMPT 1.  MR. TAYLOR, IN QUESTIONING A PROSPECTIVE
JUROR, ON THE SECOND DAY OF VOIR DIRE, REPEATEDLY IGNORED THE COURT'S
ORDER NOT TO CONTINUE A CERTAIN LINE OF QUESTIONING AND TO ASK HIS
QUESTIONS OF THE JURY AS A WHOLE, HE EVIDENCED UTTER DISRESPECT FOR
PROSPECTIVE JURORS (T.E. 335 - 347). 

"CONTEMPT 2.  THE COURT SUSTAINED THE COMMONWEALTH OBJECTION ON THE
USE OF A PRIOR STATEMENT TO CROSS EXAMINE OFFICER HOGAN AND NOT TO GO
INTO THE ESCAPE OF NARVEL TINSLEY.  MR. TAYLOR REPEATEDLY AND
COMPLETELY IGNORED THE COURT'S RULING (T.E. 1071 - 1080). 

"CONTEMPT 3.  DURING THE PLAYING OF A TAPE RECORDING OF THE VOICE OF
WITNESS DAVID WHITE, MR. TAYLOR WROTE ON A BLACKBOARD.  AFTER THE
PLAYING OF THE TAPE IT WAS ORDERED THAT THE BLACKBOARD BE REMOVED FROM
THE COURT AND MR. TAYLOR WAS ADVISED BY THE COURT THAT HE COULD USE IT
IN HIS FINAL SUMMATION TO THE JURY.  MR. TAYLOR WAS DISRESPECTFUL TO
THE COURT BY HIS TONE OF VOICE AND MANNER WHEN HE REPLIED, 'I'LL
CERTAINLY KEEP THAT IN MIND, YOUR HONOR' (T.E. 1355). 

"CONTEMPT 4.  DURING CROSS-EXAMINATION OF NARVEL TINSLEY, BY MR.
SCHROERING, MR. TAYLOR INTERRUPTED AND MOVED FOR A RECESS, WAS
OVERRULED BY THE COURT, AND THEN BECAME MOST DISRESPECTFUL TO THE COURT
AND REFUSED TO TAKE HIS SEAT AT COUNSEL'S TABLE AS ORDERED. 

"CONTEMPT 5.  COMPLETE AND UTTER DISRESPECT BY MR. TAYLOR IN THE
QUESTIONING OF MR. IRVIN FOLEY, AND (SIC) ATTORNEY AND LEGAL ADVISOR TO
THE LOUISVILLE POLICE DEPARTMENT WHEN HE CONTINUALLY DISOBEYED THE
COURT'S RULING REGARDING A PRESS CONFERENCE WHICH THE COURT HAD RULED
ON UNADMISSIBLE (SIC).  MR. TAYLOR ACCUSED THE COURT OF DISALLOWING
ADMITTANCE OF BLACK PERSONS IN THE COURTROOM DURING THE EXAMINATION OF
THIS WITNESS AND MADE A STATEMENT IN THE PRESENCE OF THE JURY INFERRING
THAT ONLY WHITE POLICE OFFICERS COULD ENTER THE COURTROOM.  IT HAS
ALWAYS BEEN THE RULE OF THIS COURT THAT THERE WILL BE NO INTERRUPTION
DURING THE EXAMINATION OF A WITNESS OR DURING CLOSING ARGUMENTS BY
PEOPLE COMING AND GOING INTO AND FROM THE COURTROOM, WHICH RULE WAS
KNOWN TO MR. TAYLOR, (T.E. 1950 - 1955). 

"CONTEMPT 6.  THE WITNESS JESSE TAYLOR, A LOUISVILLE POLICE OFFICER,
READ A STATEMENT BY WITNESS, DAVID WHITE.  A RULING WAS MADE BY THE
COURT THAT THE STATEMENT SPOKE FOR ITSELF, HAD BEEN INTRODUCED IN
EVIDENCE AND COULD NOT BE COMMENTED ON BY OFFICER TAYLOR, WHO MERELY
TOOK THE STATEMENT.  MR. TAYLOR CONTINUED TO DISREGARD THE COURT'S
ORDER AND RULING BY CONTINUALLY READING PARTS OF THE STATEMENT OUT OF
CONTEXT (T.E. 2008 - 2016). 

"CONTEMPT 7.  MR. TAYLOR IN EXAMING MR. NORBERT BROWN, AGAIN
REFERRED TO A PRESS CONFERENCE THAT THE COURT HAD PREVIOUSLY ORDERED
HIM NOT TO GO INTO.  HE ALSO WAVED HIS ARMS AT THE WITNESS IN A
DEROGATORY MANNER INDICATING THE WITNESS WAS NOT TRUTHFUL AND SHOWING
UTTER CONTEMPT OF THE COURT'S RULING (T.E. 2030 - 2032). 

"CONTEMPT 8.  THE COURT DIRECTED MR. TAYLOR TO CALL HIS NEXT
WITNESS.  HE CALLED LT. GARRETT, LOUISVILLE POLICE DEPARTMENT.  AFTER
THE WITNESS WAS SWORN AND TOOK THE STAND, A DEPUTY SHERIFF ADVISED THE
COURT THAT MR. TAYLOR'S AIDE WAS NOT SEARCHED, AS EVERYONE ELSE HAD
BEEN UPON ENTERING THE COURTROOM.  MR. TAYLOR ORDERED THE DEPUTY TO
SEARCH HIS AIDE.  THE COURT ORDERED MR. TAYLOR TO BEGIN HIS
EXAMINATION, WHICH HE REFUSED TO DO UNTIL HE WAS CITED FOR CONTEMPT IN
THE COURT'S CHAMBER (T.E. 2068 - 2069). 

"CONTEMPT 9.  MR. TAYLOR REPEATEDLY ASKED THE SAME QUESTION OF
WITNESS FLOYD MILLER THAT THE COURT HELD IMPROPER.  HE WAS ALSO
DISRESPECTFUL IN HIS TONE OF VOICE WHEN REFERRING TO A CERTAIN POLICE
OFFICER AS 'THIS NICE POLICE OFFICER' (T.E. 2169 - 2172)."  APP. 24 -
26. 

/4/  494 S.W. 2D 737, 744 (1973). 

/5/  APP. 29. 

/6/  "PUNISHMENT WITHOUT ISSUE OR TRIAL (IS) SO CONTRARY TO THE
USUAL AND ORDINARILY INDISPENSABLE HEARING BEFORE JUDGMENT,
CONSTITUTING DUE PROCESS, THAT THE ASSUMPTION THAT THE COURT SAW
EVERYTHING THAT WENT ON IN OPEN COURT (IS) REQUIRED TO JUSTIFY THE
EXCEPTION; BUT THE NEED FOR IMMEDIATE PENAL VINDICATION OF THE DIGNITY
OF THE COURT CREATED IT."  COOKE V. UNITED STATES, 267 U.S. 517, 536
(1925). 

/7/  GROPPI DEALT WITH CONTEMPT OF A STATE LEGISLATIVE BODY, AND THE
CONTEMPT ACTION WAS NOT TAKEN UNTIL SEVERAL DAYS LATER WITHOUT NOTICE
OR OPPORTUNITY FOR GROPPI TO BE HEARD. 

/8/  THE AMERICAN BAR ASSOCIATION ADVISORY COMMITTEE ON THE JUDGE'S
FUNCTION HAS RECOMMENDED, INTER ALIA: "NOTICE OF CHARGES AND
OPPORTUNITY TO BE HEARD. 

"BEFORE IMPOSING ANY PUNISHMENT FOR CRIMINAL CONTEMPT, THE JUDGE
SHOULD GIVE THE OFFENDER NOTICE OF THE CHARGES AND AT LEAST A SUMMARY
OPPORTUNITY TO ADDUCE EVIDENCE OR ARGUMENT RELEVANT TO GUILT OR
PUNISHMENT.  "COMMENTARY 

"ALTHOUGH THERE IS AUTHORITY THAT IN -COURT CONTEMPTS CAN BE
PUNISHED WITHOUT NOTICE OF CHARGES OR AN OPPORTUNITY TO BE HEARD, EX
PARTE TERRY, 128 U.S. 289 (1888), SUCH A PROCEDURE HAS LITTLE TO
COMMEND IT, IS INCONSISTENT WITH THE BASIC NOTIONS OF FAIRNESS, AND IS
LIKELY TO BRING DISRESPECT UPON THE COURT.  ACCORDINGLY, NOTICE AND AT
LEAST A BRIEF OPPORTUNITY TO BE HEARD SHOULD BE AFFORDED AS A MATTER OF
COURSE.  NOTHING IN THIS STANDARD, HOWEVER, IMPLIES THAT A PLENARY
TRIAL OF CONTEMPT CHARGES IS REQUIRED."  AMERICAN BAR ASSOCIATION
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, THE FUNCTION OF THE TRIAL
JUDGE 7.4, P. 95 (APPROVED DRAFT 1972).  CF. FED. RULE CRIM. PROC. 42
(B); HARRIS V. UNITED STATES, 382 U.S. 162 (1965).  STATE COURTS HAVE
REACHED A SIMILAR CONCLUSION.  SEE, E.G., NEW YORK STATE APPELLATE
DIVISION, FIRST AND SECOND DEPARTMENTS, SEPCIAL RULES CONCERNING COURT
DECORUM 609.2 (B) (1971) IN N. DORSEN & L. FRIEDMAN, DISORDER IN THE
COURT:  REPORT OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK,
SPECIAL COMMITTEE ON COURTROOM CONDUCT 352 (1973).     /9/  MY BROTHER
REHNQUIST'S DISSENT INSISTS THAT THE COURT HAS REJECTED THE TEACHING OF
SACHER V. UNITED STATES, 343 U.S 1 (1952), THAT IN A POSTTRIAL CONTEMPT
PROCEEDING, THE COURT NEED NOT AFFORD THE CONTEMNOR THE FULL PANOPLY OF
PROCEDURES SUCH AS "THE ISSUANCE OF PROCESS, SERVICE OF COMPLAINT AND
ANSWER, HOLDING HEARINGS, TAKING EVIDENCE, LISTENING TO ARGUMENTS,
AWAITING BRIEFS, SUBMISSION OF FINDINGS, AND ALL THAT GOES WITH A
CONVENTIONAL COURT TRIAL."  ID., AT 9 (EMPHASIS ADDED).  BUT ALL WE
HAVE DECIDED TODAY IS THAT A CONTEMNOR IS ENTITLED TO THE ELEMENTARY
DUE PROCESS PROTECTIONS OF "REASONABLE NOTICE OF THE SPECIFIC CHARGES
AND OPPORTUNITY TO BE HEARD IN HIS OWN BEHALF,"  SUPRA, AT 499, NEITHER
OF WHICH PETITIONR RECEIVED.  NOWHERE DO WE INTIMATE THAT "A FULL-SCALE
TRIAL IS APPROPRIATE."  IBID.; SEE ALSO N.8, SUPRA.  MOREOVER, WHATEVER
JUSTIFICATIONS MAY SOMETIMES NECESSITATE IMMEDIATE IMPOSTITION OF
SUMMARY PUNISHNMEMT DURING TRIAL "TO MAINTAIN ORDER IN THE COURTROOM
AND THE INTEGRITY OF THE TRIAL PROCESS IN THE FACE OF AN 'ACTUAL
OBSTRUCTION OF JUSTICE,'" CODISPOTI V. PENNSYLVANIA, POST, AT 513,
"(REASONS FOR PERMITTING STRAIGHTWAY EXERCISE OF SUMMARY POWER ARE NOT
REASONS FOR COMPELLING OR ENCOURAGING ITS IMMEDIATE EXERCISE."  SACHER
V. UNITED STATES, SUPRA, AT 9 - 10. 

/10/  MR. JUSTICE REHNQUIST'S DISSENT ALSO ASSERTS THAT OUR DECISION
PROVIDES THE MEANS WHEREBY "A JUDGE CAN BE DRIVEN OUT OF A CASE BY ANY
COUNSEL SUFFICIENTLY ASTUTE TO READ THE NEW-FOUND CONSTITUTIONAL
PRINCIPLES ENUNCIATED (HERE AND IN MAYBERRY V. PENNSYLVANIA, 400 U.S.
455 (1971))."  POST.  AT 530.  BUT THIS STATEMENT--PERHAPS DISSENTER'S
LICENSE--MISCONCEIVES OUR HOLDING AND UNDERVALUES THE IMPORT OF THE DUE
PROCESS CLAUSE.  AS EXPRESSLY NOTED IN THE TEXT, WE BY NO MEANS EQUATE
THIS CASE WITH MAYBERRY V. PENNSYLVANIA.  IT IS NOT PETITIONER'S
CONDUCT, CONSIDERED ALONE, THAT REQUIRES RECUSAL IN THIS CASE; RATHER,
THE CRITICAL FACTOR, AS REVEALED BY THE RECORD BEFORE US, IS THE
CHARACTER OF RESPONDENT'S RESPONSE TO MISBEHAVIOR DURING THE COURSE OF
THE TRIAL.  THE DISSENT, OF COURSE, MAY VIEW THE RECORD DIFFERENTLY,
BUT ON THAT ISSUE WE ARE IN UNAVOIDABLE DISAGREEMENT. 

MR. JUSTICE DOUGLAS JOINS PARTS II AND III OF THE COURT'S OPINION. 

(FOR DISSENTING OPINION OF MR. JUSTICE REHNQUIST, SEE POST, P.
523.) 

MR. JUSTICE MARSHALL, DISSENTING IN PART. 

I JOIN PARTS II AND III OF THE OPINION OF THE COURT, BUT I CANNOT
JOIN THE HOLDING IN PART I THAT PETITIONER WAS NOT ENTITLED TO A JURY
TRIAL.  PETITIONER WAS SUMMARILY CONVICTED OF CONTEMPT AND SENTENCED TO
ALMOST FOUR AND ONE-HALF YEARS IN PRISON.  IN MY VIEW, THIS SENTENCE
MARKED THE CONTEMPT CHARGES AGAINST PETITIONER AS "SERIOUS" RATHER THAN
"PETTY" AND CALLED INTO PLAY PETITIONER'S SIXTH AMENDMENT RIGHT TO A
JURY TRIAL. 

THE COURT, HOWEVER, RELIES ON THE FACT THAT THE TRIAL JUDGE
SUBSEQUENTLY REALIZED HIS ERROR AND REDUCED THE SENTENCE TO SIX
MONTHS.  THE COURT CHARACTERIZES THIS AS A DETERMINATION BY THE STATE
THAT "CONTEMPT IS NOT SO SERIOUS AS TO WARRANT MORE THAN A SIX-MONTH
SENTENCE."  ANTE, AT 496.  IN MY VIEW, THE TRIAL JUDGE'S REDUCTION OF
PETITIONER'S SENTENCE WAS A TRANSPARENT EFFORT TO CIRCUMVENT THIS
COURT'S SIXTH AMENDMENT DECISIONS AND TO SAVE HIS SUMMARY CONVICTION OF
PETITIONER WITHOUT THE NECESSITY OF AIRING THE CHARGES BEFORE AN
IMPARTIAL JURY.  IT IS HARDLY COINCIDENCE THAT PETITIONER'S SENTENCE
WAS REDUCED TO THE MAXIMUM THAT OUR DECISIONS WOULD PERMIT. 

TODAY'S DECISION REPRESENTS AN EXTRAORDINARILY RIGID AND WOODEN
APPLICATION OF THE SIX-MONTH RULE THAT THE COURT HAS FASHIONED TO
DETERMINE WHEN THE SIXTH AMENDMENT RIGHT IS APPLICABLE.  IN PERMITTING
THIS OBVIOUS DEVICE TO SUCCEED, I THINK THAT THE COURT CHANGES THE
NATURE OF THE SIX-MONTH RULE FROM A REASONABLE EFFORT TO DISTINGUISH
BETWEEN "SERIOUS" AND "PETTY" CONTEMPTS INTO AN ARBITRARY BARRIER
BEHIND WHICH JUDGES WHO WISH TO PROTECT THEIR SUMMARY CONTEMPT
CONVICTIONS WITHOUT EXPOSING THEIR CHARGES TO THE HARSH LIGHT OF A JURY
MAY SAFELY HIDE.  THE VERY FACT THAT SUCH A SUBSTANTIAL CONTEMPT
SENTENCE WAS IMPOSED, AND THEN REDUCED TO THE SIX-MONTH MAXIMUM, SHOULD
BE A WARNING TO US THAT THE FAIRNESS OF THE PROCESS WHICH PETITIONER
HAS RECEIVED IS SUSPECT, AND THAT THE CONTEMPT CHARGES INVOLVED HERE
ESPECIALLY REQUIRE THE SCRUTINY OF A JURY TRIAL.  STATEMENTS IN THE
PLURALITY OPINION IN CHEFF V. SCHNACKENBERG, 384 U.S. 373, 380 (1966),
TO THE CONTRARY NOTWITHSTANDING, I DO NOT BELIEVE THAT PETITIONER COULD
BE DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO JURY TRIAL, ONCE IT
ATTACHED THROUGH THE IMPOSITION OF A SUBSTANTIAL SENTENCE, BY THE
SUBSEQUENT ACTION OF THE TRIAL COURT OR AN APPELLATE COURT IN REDUCING
THE SENTENCE. 

ROBERT ALLEN SEDLER ARGUED THE COURSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE DORIS PETERSON AND MORTON STAVIS. 

HENRY A. TRIPLETT ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT.  /1/ 

/1/  "BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY BURKE
MARSHALL, LEON FRIEDMAN, AND NORMAN DORSEN FOR THE ASSOCIATION OF THE
BAR OF THE CITY OF NEW YORK; BY FRANK E. HADDAD, JR., JOE G. LEIBSON,
AND ED P. JACKSON FOR THE LOUISVILLE BAR ASSN.; BY JAMES LARSON, ARTHUR
KINOY, AND VICTOR RABINOWITZ FOR THE NATIONAL LAWYERS GUILD; AND BY
MELVIN L. WULF FOR THE AMERICAN CIVIL LIBERTIES UNION. 
..END :























CODISPOTI V. PENNSYLVANIA, 418 U.S. 506 


       CODISPOTI ET AL. V. PENNSYLVANIA

        CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA

        NO. 73 - 5615.  ARGUED MARCH 25, 1974--DECIDED JUNE 26,

1974; 453 PA. 619, 306 A.2D 294, REVERSED AND REMANDED. 


    PETITIONERS, CODISPOTI AND LANGNES, WERE TRIED BEFORE A JUDGE

  IN SEPARATE PROCEEDINGS FOR CONTEMPTUOUS CONDUCT THAT ALLEGEDLY

  OCCURRED DURING THE COURSE OF THEIR CRIMINAL TRIAL BEFORE ANOTHER

  JUDGE, AND WERE FOUND GUILTY ON EACH OF SEVERAL SEPARATE

  CHARGES.  THE JUDGE IN THE CONTEMPT PROCEEDINGS, WHO REFUSED

  PETITIONERS' REQUEST FOR A JURY TRIAL, IMPOSED CONSECUTIVE

  SENTENCES, CODISPOTI REVEIVING SIX MONTHS FOR EACH OF SIX

  CONTEMPTS AND THREE MONTHS FOR THE SEVENTH (AGGREGATION OVER

  THREE YEARS), AND LAGNES SIX MONTHS FOR EACH OF FIVE CONTEMPTS

  AND TWO MONTHS FOR THE SIXTH (AGGREGATING CLOSE TO THREE YEARS). 

THE PENNSYLVANIA SUPREME COURT AFFIRMED.  THIS COURT GRANTED

  CERTIORARI LIMITED TO QUESTIONS RAISING THE ISSUE WHETHER

  PETITIONERS SHOULD HAVE BEEN AFFORDED A JURY TRIAL.  HELD: 

     1.  THOUGH A CRIME CARRYING MORE THAN A SIX-MONTH SENTENCE IS
A

  SERIOUS OFFENSE TRIABLE BY JURY, FRANK V. UNITED STATES, 395 U.S.

  147; BALDWIN V. NEW YORK, 399 U.S. 66, AN ALLEGED CONTEMNOR IS

  NOT ENTITLED TO A JURY TRIAL SIMPLY BECAUSE A STRONG POSSIBILITY

  EXISTS THAT UPON CONVICTION HE WILL FACE A SUBSTANTIAL TERM OF

  IMPRISONMENT REGARDLESS OF THE PUNISHMENT ACTUALLY IMPOSED.  SEE

 TAYLOR V. HAYES, ANTE, P. 488, P. 512. 

     2.  IN THE CASE OF POST-VERDICT ADJUDICATIONS OF VARIOUS ACTS

  OF CONTEMPT COMMITTED DURING TRIAL, THE SIXTH AMENDMENT REQUIRES

  A JURY TRIAL IF THE SENTENCE IMPOSED AGGREGATE MORE THAN SIX

  MONTHS, EVEN THOUGH NO SENTENCE FOR MORE THAN SIX MONTHS WAS

  IMPOSED FOR ANY ONE ACT OF CONTEMPT.  PP. 515 - 517. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, AND POWELL, JJ., JOINED AND IN PARTS I AND III OF WHICH
MARSHALL, J., JOINED.  MARSHALL, J., FILED AN OPINION CONCURRING IN
PART, POST, P. 518.  BLACKMUN, J., FILED A DISSENTING OPINION, IN WHICH
BURGER, C.J., AND STEWART AND REHNQUIST, JJ., JOINED, POST, P. 522. 
REHNQUIST, J., FILED A DISSENTING OPINION, IN PART II OF WHICH BURGER,
C.J., JOINED, POST, P. 523. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT.  /0/ 

IN DECEMBER 1966, PETITIONERS DOMINICK CODISPOTI AND HERBERT LANGNES
WERE CODEFENDANTS WITH RICHARD MAYBERRY IN A CRIMINAL TRIAL ENDING IN A
VERDICT OF GUILTY.  EACH ACTED AS HIS OWN COUNSEL, ALTHOUGH LEGAL
ADVICE WAS AVAILABLE FROM APPOINTED COUNSEL.  AT THE COUNCLUSION OF THE
TRIAL, THE JUDGE PRONOUNCED MAYBERRY GUILTY OF 11 CONTEMPTS COMMITTED
DURING TRIAL AND SENTENCED HIM TO ONE TO TWO YEARS FOR EACH CONTEMPT. 
CODISPOTI WAS GIVEN LIKE SENTENCES FOR EACH OF SEVEN SEPARATE
CONTEMPTS.  LANGNES WAS SENTENCED TO ONE TO TWO YEARS ON EACH OF SIX
SEPERATE CITATIONS.  MAYBERRY'S TOTAL SENTENCE WAS THUS 11 TO 22 YEARS,
CODISPOTI'S SEVEN TO 14 YEARS AND LANGNES'  SIX TO 12 YEARS.  THE
CONTEMPT CONVICTIONS WERE AFFIRMED BY THE PENNSYLVAINA SUPREME COURT. 
THIS COURT GRANTED MAYBERRY'S PETITION FOR CERTIORARI, 397 U.S. 1020,
AND VACATED THE JUDGEMENT OF THE PENNSYLVANIA COURT, DIRECTING THAT "ON
REMAND ANOTHER JUDGE, NOT BEARING THE STING OF THESE SLANDEROUS REMARKS
AND HAVING THE IMPERSONAL AUTHORITY OF THE LAW, (SIT) IN JUDGMENT ON
THE CONDUCT OF PETITIONER AS SHOWN BY THE RECORD."  MAYBERRY V.
PENNSYLVANIA, 400 U.S. 455, 466 (1971). 

THE CONTEMPT CHARGES AGAINST MAYBERRY AND PETITIONERS WERE THEN
RETRIED IN SEPARATE PROCEEDINGS BEFORE ANOTHER TRIAL JUDGE.  /1/
CODISPOTI'S DEMAND FOR A JURY WAS DENIED.  HE ALSO MOVED TO SUBPOENA
WITNESSES "TO PROVE THAT MY ACTIONS DID NOT DISRUPT THE PROCEEDINGS,
AND I INTEND TO PROVE THAT MY ACTIONS WAS (SIC) NOT CONTEMPTUOUS, THAT
IT WAS MERELY AN ANSWER TO THE PROVOCATION MADE BY THE PRESIDING
JUDGE."  APP. 47.  THIS MOTION WAS ALSO DENIED, THE COURT REMARKING
THAT "THIS IS AN ISSUE BETWEEN THE COURT AND YOU, AND THE RECORD WILL
SPEAK FOR THE COURT, AND YOU AND COUNSEL CAN SPEAK FOR YOURSELF." 
IBID.  THE TRIAL THEN PROCEEDED, THE STATE OFFERING INTO EVIDENCE THE
RELEVANT PORTIONS OF THE TRANSCRIPT OF THE 1966 CRIMINAL PROCEEDINGS IN
THE COURSE OF WHICH THE ALLEGED CONTEMPTS OCCURED.  THE STATE THEN
RESTED.  CODISPOTI NEITHER TESTIFIED NOR CALLED WITNESSES.  THE COURT
FOUND THAT HE HAD COMMITTED THE SEVEN CONTEMPTUOUS ACTS AS CHARGED AND
SENTENCES HIM TO SIX MONTHS IN PRISON FOR EACH OF SIX CONTEMPTS AND A
TERM OF THREE MONTHS FOR ANOTHER, ALL OF THESE SENTENCES TO RUN
CONSECUTIVELY. 

PETITIONER LANGNES' TRIAL FOLLOWED A VERY SIMILAR COURSE.  /2/  HE
WAS FOUND GUILTY OF SIX SEPARATE CONTEMPTS AND SENTENCED TO FIVE TERMS
OF SIX MONTHS, ALL TO BE SERVED CONSECUTIVELY. 

THE TRIAL COURT FILED AN OPINION STATING THAT "THE ONLY POINTS AT
ISSUE ARE THE VALIDITY OF THE SENTENCES.  THE QUESTION OF GUILT OF
CONTEMPTUOUS CONDUCT HAS BEEN CONFIRMED BY BOTH THE SUPREME COURT OF
PENNSYLVANIA . . . AND BY THE U.S. SUPREME COURT . . ., THEREFORE
TESTIMONY AT THIS HEARING WAS LIMITED TO THE RECORD."  APP. 35.  THE
COURT ALSO HELD THAT PETITIONERS WERE NOT ENTITLED TO A JURY TRIAL 

"BECAUSE THE QUESTIONS OF GUILT TO WHICH THE JURIES'  DECISIONS
WOULD BE LIMITED HAD ALREADY BEEN ADJUDICATED ADVERSELY TO THE
DEFENDANTS BY TWO APPELLATE COURTS.  FURTHERMORE, IN THE INSTANT CASES
NOT TERM OF IMPRISONMENT IN EXCESS OF SIX MONTHS WAS IMPOSED FOR ANY
ONE OFFENSE.  THE OFFENSES FOR WHICH SENTENCES WERE IMPOSED OCCURRED AT
DIFFERENT TIMES AND ON DIFFERENT DATES."  ID., AT 36 (FOOTNOTE
OMITTED). 

THE PENNSYLVANIA SUPREME COURT AFFIRMED WITHOUT OPINION, ONE JUSTICE
DISSENTING ON THE GROUND THAT PETITIONERS WERE ENTITLED TO A JURY
TRIAL.  453 PA. 619, 306 A.2D 294.  WE GRANTED CERTIORARI LIMITED TO
THOSE QUESTIONS RAISING THE ISSUE WHETHER PETITIONERS SHOULD HAVE BEEN
AFFORDED A JURY TRIAL.  414 U.S. 1063 (1973).  /3/

        I 

IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), THE COURT HELD THAT THE
FOURTEENTH AMENDMENT GUARANTEED TO DEFENDANTS IN STATE CRIMINAL TRIALS
THE RIGHT TO JURY TRIAL PROVIDED IN THE SIXTH AMENDMENT.  IN A
COMPANION CASE, BLOOM V. ILLINOIS, 391 U.S. 194 (1968), THE COURT HELD
THAT WHILE PETTY CONTEMPTS, LIKE OTHER PETTY CRIMES, COULD BE TRIED
WITHOUT A JURY, SERIOUS CRIMINAL CONTEMPTS HAD TO BE TRIED WITH A JURY
IF THE DEFENDANT INSISTED ON THIS MODE OF TRIAL.  ALTHOUGH THE JUDGMENT
ABOUT THE SERIOUSNESS OF THE CRIME IS NORMALLY HEAVILY INFLUENCED BY
THE PENALTY AUTHORIZED BY THE LEGISLATURE, THE COURT HELD THAT WHERE NO
LEGISLATIVE PENALTY IS SPECIFIED AND SENTENCE IS LEFT TO THE DISCRETION
OF THE JUDGE, AS IS OFTEN TRUE IN THE CASE OF CRIMINAL CONTEMPT, THE
PETTINESS OR SERIOUSNESS OF THE CONTEMPT WILL BE JUDGED BY THE PENALTY
ACTUALLY IMPOSED.  FINALLY, THE COURT RECOGNIZED THAT SENTENCES UP TO
SIX MONTHS COULD BE IMPOSED FOR CRIMINAL CONTEMPT WITHOUT GUILT OR
INNOCENCE BEING DETERMINIED BY A JURY, BUT A CONVICTION FOR CRIMINAL
CONTEMPT IN A NONJURY TRIAL COULD NOT BE SUSTAINED WHERE THE PENALTY
IMPOSED WAS 24 MONTHS IN PRISON. 

SINCE THAT TIME, OUR DICISIONS HAVE ESTABLISHED A FIXED DIVIDING
LINE BETWEEN PETTY AND SERIOUS OFFENSES: THOSE CRIMES CARRYING A
SENTENCE OF MORE THAN SIX MONTHS ARE SERIOUS CRIMES AND THOSE CARRYING
A SENTENCE OF SIX MONTHS OR LESS ARE PETTY CRIMES.  FRANK V. UNITED
STATES, 395 U.S. 147, 149 - 150 (1969); BALDWIN V. NEW YORK, 399 U.S.
66, 69 (1970).  /4/  UNDER THESE CASES, WE PLAINLY CANNOT ACCEPT
PETITIONERS' ARGUMENT THAT A CONTEMNOR IS ENTITLED TO A JURY TRIAL
SIMPLY BECAUSE A STRONG POSSIBILITY EXISTS THAT HE WILL FACE A
SUBSTANTIAL TERM OF IMPRISONMENT UPON CONVICTION, REGARDLESS OF THE
PUNISHMENT ACTUALLY IMPOSED.  SEE TAYLOR V. HAYES, ANTE, P. 488.  OUR
CASES, HOWEVER, DO NOT EXPRESSLY ADDRESS PETITIONERS' REMAINING
ARGUMENT THAT THEY WERE ENTITLED TO JURY TRIALS BECAUSE THE PRISON
SENTENCES IMPOSED AFTER POSTTRIAL CONVICTIONS FOR CONTEMPTUOUS ACTS
DURING TRIAL WERE TO BE SERVED CONSECUTIVELY AND, ALTHOUGH EACH WAS NO
MORE THAN SIX MONTHS, AGGREGATED MORE THAN SIX MONTHS IN JAIL.  /5/

      II 

THERE ARE RECURRING SITUATIONS WHERE THE TRIAL JUDGE, TO MAINTAIN
ORDER IN THE COURTROOM AND THE INTEGRITY OF THE TRIAL PROCESS IN THE
FACE OF AN "ACTUAL OBSTRUCTION OF JUSTICE," IN RE MCCONNELL, 370 U.S.
230, 236 (1962); SEE ALSO IN RE LITTLE, 404 U.S. 553, 555 (1972),
CONVICTS AND SENTENCES THE ACCUSED OR THE ATTORNEYS FOR EITHER SIDE FOR
VARIOUS ACTS OF CONTEMPT AS THEY OCCUR.  UNDOUBTEDLY, WHERE THE
NECESSITY OF CIRCUMSTANCES WARRANTS, A CONTEMNOR MAY BE SUMMARILY TRIED
FOR AN ACT OF CONTEMPT DURING TRIAL AND PUNISHED BY A TERM OF NO MORE
THAN SIX MONTHS.  NOR DOES THE JUDGE EXHAUST HIS POWER TO CONVICT AND
PUNISH SUMMARILY WHENEVER THE PUNISHMENT IMPOSED FOR SEPARATE
CONTEMPTUOUS ACTS DURING TRIAL EXCEEDS SIX MONTHS.  CF. UNITED STATES
V. SEALE, 461 F.2D 345, 355 (CA7 1972). 

BLOOM V. ILLINOIS, SUPRA, RECOGNIZED, AS CASES IN THIS COURT HAVE
CONSISTENTLY DONE, "THE NEED TO MAINTAIN ORDER AND A DELIBERATIVE
ATMOSPHERE IN THE COURTROOM.  THE POWER OF A JUDGE TO QUELL DISTURBANCE
CANNOT ATTEND UPON THE IMPANELING OF A JURY."  391 U.S., AT 210. 

"(A) CRIMINAL TRIAL, IN THE CONSTITUTIONAL SENSE, CANNOT TAKE PLACE
WHERE THE COURTROOM IS A BEDLAM . . . A COURTROOM IS A HALLOWED PLACE
WHERE TRIALS MUST PROCEED WITH DIGNITY . . . ."  ILLINOIS V. ALLEN, 397
U.S. 337, 351 (1970) (SEPARATE OPINION OF DOUGLAS, J.).  SEE ALSO N.
DORSEN & L. FRIEDMAN, DISORDER IN THE COURT:  REPORT OF THE ASSOCIATION
OF THE BAR OF THE CITY OF NEW YORK, SPECIAL COMMITTEE ON COURTROOM
CONDUCT 10 - 23 (1973); BURGER, THE NECESSITY FOR CIVILITY, 52 F.R.D.
211, 214 - 215 (1971). 

     "TO ALLOW THE DISRUPTIVE ACTIVITIES OF A DEFENDANT . . . TO

  PREVENT HIS TRIAL IS TO ALLOW HIM TO PROFIT FROM HIS OWN WRONG. 

  THE CONSTITUTION WOULD PROTECT NONE OF US IF IT PREVENTED THE

  COURTS FROM ACTING TO PRESERVE THE VERY PROCESSES THAT THE

  CONSTITUTION ITSELF PRESCRIBES."  ILLINOIS V. ALLEN, SUPRA, AT

350 (BRENNAN, J., CONCURRING). 

MORE RECENTLY, IN MAYBERRY V. PENNSYLVAINA, SUPRA, WE AGAIN NOTED
THAT A JUDGE, WHEN FACED WITH THE KIND OF CONDUCT THERE AT ISSUE,
"COULD, WITH PROPRIETY, HAVE INSTANTLY ACTED, HOLDING PETITIONER IN
CONTEMPT . . . ."  400 U.S., AT 463.  THAT THE TOTAL PUNISHMENT METED
OUT DURING TRIAL EXCEEDS SIX MONTHS IN JAIL OR PRISON WOULD NOT
INVALIDATE ANY OF THE CONVICTIONS OR SENTENCES, FOR EACH CONTEMPT HAS
BEEN DEALT WITH AS A DISCRETE AND SEPARATE MATTER AT A DIFFERENT POINT
DURING THE TRIAL. 

        III 

WHEN THE TRIAL JUDGE, HOWEVER, POSTPONES UNTIL AFTER TRIAL THE FINAL
CONVICTION AND PUNISHMENT OF THE ACCUSED OR HIS LAWYER FOR SEVERAL OR
MANY ACTS OF CONTEMPT COMMITTED DURING THE TRIAL, THERE IS NO
OVERRIDING NECESSITY FOR INSTANT ACTION TO PRESERVE ORDER AND NO
JUSTIFICATION FOR DISPENSING WITH THE ORDINARY REDIMENTS OF DUE
PROCESS.  MAYBERRY V. PENNSYLVANIA, SUPRA, AT 463 - 464; GROPPI V.
LESLIE, 404 U.S. 496, 499 - 507 (1972); TAYLOR V. HAYES, ANTE, AT 497. 
MOREOVER, IT IS NORMALLY THE TRIAL JUDGE WHO, IN RETROSPECT, DETERMINES
WHICH AND HOW MANY ACTS OF CONTEMPT THE CITATION WILL COVER.  IT IS
ALSO HE OR, AS IS THE CASE HERE, ANOTHER JUDGE WHO WILL DETERMINE GUILT
OR INNOCENCE ABSENT A JURY, WHO WILL IMPOSE THE SENTENCES AND WHO WILL
DETERMINE WHETHER THEY WILL RUN CONSECUTIVELY OR CONCURRENTLY.  IN THE
CONTEXT OF THE POST-VERDICT ADJUDICATION OF VARIOUS ACTS OF CONTEMPT,
IT APPEARS TO US THAT THERE IS POSED THE VERY LIKELIHOOD OF ARBITRARY
ACTION THAT THE REQUIREMENT OF JURY TRIAL WAS INTENDED TO AVOID OR
ALLEVIATE.  CF. IBID. 

THE JURY-TRIAL GUARANTEE REFLECTS "A PROFOUND JUDGMENT ABOUT THE WAY
IN WHICH LAW SHOULD BE ENFORCED AND JUSTICE ADMINISTERED.  A RIGHT TO
JURY TRIAL IS GRANTED TO CRIMINAL DEFENDANTS IN ORDER TO PREVENT
OPPRESSION BY THE GOVERNMENT."  DUNCAN V. LOUISIANA, 391 U.S., AT 155
(FOOTNOTE OMITTED).  THE SIXTH AMENDMENT REPRESENTS A "DEEP COMMITMENT
OF THE NATION TO THE RIGHT OF JURY TRIAL IN SERIOUS CRIMINAL CASES AS A
DEFENSE AGAINST ARBITRARY LAW ENFORCEMENT . . . ."  ID., AT 156. 
MOREOVER, 

"CRIMINAL CONTEMPT IS A CRIME IN EVERY FUNDAMENTAL RESPECT . . . .
(IN TERMS OF THOSE CONSIDERATIONS WHICH MAKE THE RIGHT TO JURY TRIAL
FUNDAMENTAL IN CRIMINAL CASES, THERE IS NO SUBSTANTIAL DIFFERENCE
BETWEEN SERIOUS CONTEMPTS AND OTHER SERIOUS CRIMES.  INDEED, IN
CONTEMPT CASES AN EVEN MORE COMPELLING ARGUMENT CAN BE MADE FOR
PROVIDING A RIGHT TO JURY TRIAL AS A PROTECTION AGAINST THE ARBITRARY
EXERCISE OF OFFICIAL POWER.  CONTEMPTUOUS CONDUCT, THOUGH A PUBLIC
WRONG, OFTEN STRIKES AT THE MOST VULNERABLE AND HUMAN QUALITIES OF A
JUDGE'S TEMPERAMENT.  EVEN WHEN THE CONTEMPT IS NOT A DIRECT INSULT TO
THE COURT OR THE JUDGE, IT FREQUENTLY REPRESENTS A REJECTION OF
JUDICIAL AUTHORITY, OR AN INTERFERENCE WITH THE JUDICIAL PROCESS OR
WITH THE DUTIES OF OFFICERS OF THE COURT."  BLOOM V. ILLINOIS, 391
U.S., AT 201 - 202. 

IN THE CASE BEFORE US, THE ORIGINAL TRIAL JUDGE FILED THE CONTEMPT
CHARGES AGAINST THESE PETITIONERS, WHILE ANOTHER JUDGE TRIED THEM AND
IMPOSED THE SENTENCES.  BECAUSE THE LATTER HAD THE POWER TO IMPOSE
CONSECUTIVE SENTENCES, AS HE DID HERE, GUILT OR INNOCENCE ON THE
INDIVIDUAL CHARGES BORE HEAVILY ON THE ULTIMATE SENTENCE AND WAS OF
CRITICAL IMPORTANCE.  HERE THE CONTEMPTS AGAINST EACH PETITIONER WERE
TRIED SERIATIM IN ONE PROCEEDING, AND THE TRIAL JUDGE NOT ONLY IMPOSED
A SEPARATE SENTENCE FOR EACH CONTEMPT BUT ALSO DETERMINED THAT THE
INDIVIDUAL SENTENCES WERE TO RUN CONSECUTIVELY RATHER THAN
CONCURRENTLY, A RULING WHICH NECESSARILY EXTENDED THE PRISON TERM TO BE
SERVED BEYOND THAT ALLOWABLE FOR A PETTY CRIMINAL OFFENSE.  AS A RESULT
OF THIS SINGLE PROCEEDING, CODISPOTI WAS SENTENCED TO THREE YEARS AND
THREE MONTHS FOR HIS SEVEN CONTEMPTUOUS ACTS, LANGNES TO TWO YEARS AND
EIGHT MONTHS FOR HIS SIX CONTEMPTS.  IN TERMS OF THE SENTENCE IMPOSED,
WHICH WAS OBVIOUSLY SEVERAL TIMES MORE THAN SIX MONTHS, EACH CONTEMNOR
WAS TRIED FOR WHAT WAS EQUIVALENT TO A SERIOUS OFFEENSE AND WAS
ENTITLED TO A JURY TRIAL. 

WE FIND UNAVAILING RESPONDENT'S CONTRARY ARGUMENT THAT PETITIONERS'
CONTEMPTS WERE SEPARATE OFFENSES AND THAT, BECAUSE NO MORE THAN SIX
MONTHS' SENTENCE WAS IMPOSED FOR ANY SINGLE OFFENSE, EACH COMTEMPT WAS
NECESSARILY A PETTY OFFENSE TRIABLE WITHOUT A JURY.  NOTWITHSTANDING
RESPONDENT'S CHARACTERIZATION OF THE PROCEEDING, THE SALIENT FACT
REMAINS THAT THE CONTEMPTS AROSE FROM A SINGLE TRIAL, WERE CHARGED BY A
SINGLE JUDGE, AND WRE TRIED IN A SINGLE PROCEEDING.  THE INDIVIDUAL
SENTENCES IMPOSED WERE THEN AGGREGATED, ONE SENTENCE TAKING ACCOUNT OF
THE OTHERS AND NOT BEGINNING UNTIL THE IMMEDIATELY PRECEDING SENTENCE
HAD EXPIRED. 

NEITHER ARE WE IMPRESSED WITH THE CONTENTION THAT TODAY'S DECISION
WILL PROVOKE TRIAL JUDGES TO PUNISH SUMMARILY DURING TRIAL RATHER THAN
AWAITING A CALMER, MORE STUDIED PROCEEDING AFTER TRIAL AND DELIBERATING
"IN THE COOL REFLECTION OF SUBSEQUENT EVENTS."  YATES V. UNITED STATES,
355 U.S. 66, 76 (1957) (FOOTNOTE OMITTED).  SUMMARY CONVICTIONS DURING
TRIAL THAT ARE UNWARRANTED BY THE FACTS WILL NOT BE INVULNERABLE TO
APPELLATE REVIEW.  CF.  SACHER V. UNITED STATES, 343 U.S. 1, 9, 13
(1952).  /6/ 

NOR CAN WE ACCEPT THE TRIAL COURT'S VIEW THAT THE QUESTION OF
PETITIONERS' GUILT ON THE CONTEMPT CHARGES HAD ALREADY BEEN
CONCLUSIVELY ADJUDICATED IN THIS COURT.  OUR DECISION IN MAYBERRY V.
PENNSYLVANIA, SUPRA, ALTHOUGH EXPRESSING STRONG CONDEMNATION OF
MAYBERRY'S CONDUCT, WHICH WE REAFFIRM, DID NOT PURPORT TO AFFIRM
MAYBERRY'S CONTEMPT CONVICTION.  ON THE CONTRARY, THE JUDGMENT
AFFIRMING THE CONVICTION WAS VACATED AND A NEW TRIAL REQUIRED BEFORE A
DIFFERENT JUDGE WHO WAS TO SIT "IN JUDGMENT ON THE CONDUCT OF
PETITIONER AS SHOWN BY THE RECORD."  400 U.S., AT 466.     THE JUDGMENT
OF THE PENNSYLVANIA SUPREME COURT IS REVERSED AND THE CASE REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/0/  PART II OF THE OPINION IS JOINED ONLY BY MR. JUSTICE DOUGLAS,
MR. JUSTICE BRENNAN, AND MR. JUSTICE POWELL. 

/1/  THE SEVEN CONTEMPTS CHARGED AGAINST CODISPOTTI WERE: 

"1.  THAT WHILE BEING TRIED BY A JURY BEFORE ALBERT A. FIOK, J. ON
NOVEMBER 18, 1966, HE, THE DEFENDANT, ACCUSED THE COURT OF TRYING TO
PROTECT THE PRISON AUTHORITIES BY SAYING, 'ARE YOU TRYING TO PROTECT
THE PRISON AUTHORITIES, YOUR HONOR?  IS THAT YOUR REASON?' 

"2.  THAT WHILE ON TRIAL AS AFORESAID ON NOVEMBER 29, 1966, HE, THE
DEFENDANT, ACCUSED THE COURT OF KOWTOWING AND RAILROADING THE DEFENDANT
INTO LIFE IMPRISONMENT BY SAYING '.  . . IT IS ONLY BECAUSE THE
DEFENDANTS IN THIS CASE WILL NOT SIT STILL AND BE KOWTOWED AND BE
RAILROADED INTO A LIFE IMPRISONMENT.' 

"3.  THAT WHILE ON TRIAL AS AFORESAID ON NOVEMBER 30, 1966, HE, THE
DEFENDANT, CALLED THE JUDGE 'CAESAR' AND ACCUSED THE COURT OF MISCONUCT
BY SAYING, 'YOU'RE TRYING TO RAILROAD US.'  AND '.  . . I HAVE NEVER
COME ACROSS SUCH A TYRANNICAL DISPLAY OF CORRUPTION IN MY LIFE.' 

"4.  THAT WHILE ON TRIAL AS AFORESAID ON DECEMBER 1, 1966, HE, THE
DEFENDANT, ADDRESSED THE COURT IN AN INSOLENT AND DEROGATORY MANNER BY
SAYING, 'ARE YOU GOING TO TELL ME MY CODEFENDANT IS NOT CRAZY?  YOU
MUST BE CRAZY TO TRY ME WITH HIM.' 

"5.  THAT WHILE ON TRIAL AS AFORESAID ON DECEMBER 2, 1966, HE, THE
DEFENDANT, ACCUSED THE COURT OF CRIMINAL CONSPIRACY BETWEEN IT AND
PRISON OFFICIALS BY SAYING, 'I FURTHER INTEND TO PROVE THERE IS A
CONSPIRACY BETWEEN THE PRISON AUTHORITIES AND THIS COURT.' 

"6.  THAT WHILE ON TRIAL AS AFORESAID ON DECEMBER 8, 1966, HE, THE
DEFENDANT, CREATED A DESPICABLE SCENE AND REFUSED TO CONTINUE WITH THE
CALLING OF HIS WITNESSES UNLESS THE COURT ORDERED A MISTRIAL, AND IN
GENERAL CREATING AN UPROAR, SUCH AN UPROAR AS TO CAUSE THE TERMINATION
OF THE TRIAL. 

"7.  THAT WHILE ON TRIAL AS AFORESAID ON DECEMBER 9, 1966, HE, THE
DEFENDANT, BY CONSTANT AND BOISTEROUS AND INSOLENT CONDUCT INTERRUPTED
THE COURT IN ITS ATTEMPTS TO CHARGE THE JURY, THEREBY CREATING AN
ATMOSPHERE OF UTTER CONFUSION AND CHAOS."  APP. 33 - 34. 

/2/  THE SIX CONTEMPTS CHARGED AGAINST LANGNES WERE: 

"1.  THAT WHILE BEING TRIED BY A JURY BEFORE ALBERT A. FIOK, J. ON
NOVEMBER 28, 1966, HE, THE DEFENDANT, ACCUSED THE COURT OF CONSPIRACY
BY SAYING, 'FOR THE RECORD, BEFORE HE BEGINS AGAIN, I WANT THE RECORD
TO SHOW THIS IS ANOTHER PROOF OF CONSPIRACY BETWEEN THIS COURT AND
INSTITUTION.' 

"2.  THAT WHILE ON TRIAL AS AFORESAID ON NOVEMBER 29, 1966, HE, THE
DEFENDANT, THREATENED TO BLOW THE TRIAL JUDGE'S HEAD OFF, BY SAYING,
'IF I HAVE TO BLOW YOUR HEAD OFF, THAT'S EXACTLY WHAT I'LL DO.  I DON'T
GIVE A DAMN IF ITS ON THE RECORD OR NOT.  IF I GOT TO USE FORCE, I
WILL.  THAT'S WHAT THE HELL I'M GOING TO DO.' 

"3.  THAT WHILE ON TRIAL AS AFORESAID ON DECEMBER 1, 1966, HE, THE
DEFENDANT, ACCUSED AND THREATENED THE COURT BY SAYING, 'LIKE I TOLD
YOU, YOU FORCE THIS TRIAL ON ME--YOU GOING TO GIVE ME AN ILLEGAL TRIAL,
I TOLD YOU BEFORE WHAT I WAS GOING TO DO TO YOU, AND I MEAN IT.  NOW I
REFUSE TO GO ON WITH THIS TRIAL IF YOU ARE GOING TO RAILROAD ME AND
BADGER MY WITNESSES, FORCE ME TO AN UNFAIR TRIAL, THAT IS EXACTLY WHAT
I AM GOING TO DO, PUNK.  I'M GOING TO BLOW YOUR HEAD OFF.  YOU
UNDERSTAND THAT?' 

"4.  THAT WHILE ON TRIAL AS AFORESAID ON DECEMBER 5, 1966, HE, THE
DEFENDANT, TOLD THE COURT TO 'GO TO HELL.'  AND ACCUSED THE COURT OF
MISCONDUCT BY SAYING, 'ONE REASON, YOU OBVIOUSLY HAVE GOTTEN IN CONTACT
WITH THE LOCAL PAPERS TO SHARPEN THE HATCHET OVER THE HEADS OF THE
DEFENDANTS ACCUSING THEM OF CAUSING THE TAXPAYERS FIFTY GRAND WHICH AS
A RESULT GAVE THIS HEARING A PREJUDICIAL ATMOSPHERE.  I WOULD LIKE TO
STATE HERE FOR THE RECORD, AND FOR THE PAPERS, IF NEED BE, IT IS NOT US
THAT IS COSTING THE TAXPAYERS MONEY.  IT IS YOU, MR. MARONEY, AND THE
COMMONWEALTH THAT IS COSTING THE TAXPAYERS MONEY.' 

"5. THAT WHILE ON TRIAL AS AFORESAID ON DECEMBER 5, 1966, HE, THE
DEFENDANT, MADE SCURRILOUS REMARKS TO THE COURT BY SAYING, 'FOR THE
RECORD, I WOULD LIKE TO STATE THAT AS FAR AS MY PERSONAL OPINION IS
CONCERNED, COMMUNIST RUSSIA, COMMUNIST CHINA, AND CUBA NEED MEN LIKE
YOU.  I THINK WHEREVER YOU CAME FROM YOU INFILTRATED THE COURTS AND THE
WHOLE PLACE MIGHT AS WELL BE COMMUNIST RUSSIA.' 

"6.  THAT WHILE ON TRIAL AS AFORESAID ON DECEMBER 9, 1966, HE, THE
DEFENDANT, THREATENED THE LIFE OF THE COURT BY SAYING, 'I OBJECT TO
WHAT YOU DID TO MY TWO CODEFENDANTS AND I SWEAR ON MY MOTHER'S NAME
THAT I WILL KEEP MY PROMISE TO YOU, THE TWO THREATS I MADE.  DON'T
WORRY ABOUT ME INTERRUPTING DURING YOUR SUMMATION.  I WON'T EVEN
DIGNIFY THESE STINKING PROCEDINGS, PUNK, GO TO HELL, AND I WILL SHAKE
HANDS IN HELL WITH YOU.  I WILL BE DAMNED TO YOU.'  ALSO, HE, THE
DEFENDANT, SAID, 'YOU ARE A DEAD MAN, STONE DEAD.  YOUR HONOR.'"  APP.
30 - 31. 

/3/  THE QUESTION ON WHICH CERTIORARI WAS GRANTED WERE STATED IN THE
PETITION, AS FOLLOWS: 

"1.  SHOULD PETITIONERS RECEIVE CUMULATIVE SENTENCES FOR CONTEMPT OF
COURT IMPOSED AT THE END OF A TRIAL WHERE THE TOTAL EFFECTIVE SENTENCE
RECEIVED MUST BE USED RATHER THAN THE INDIVIDUAL SENTENCES IN ORDER TO
DETERMINE THE SERIOUSNESS OF THE CONTEMPT AND THEREBY DETERMINE WHETHER
THE ACCUSED SHOULD BE AFFORDED THE RIGHT TO A JURY TRIAL? 

"2.  SHOULD THE STRONG POSSIBILITY OF A SUBSTANTIAL TERM OF
IMPRISONMENT REQUIRE THAT AN ACCUSED BE AFFORDED THE RIGHT TO A JURY
TRIAL?" 

/4/  IN TRACING THE LINEAGE OF THE SIX -MONTH DIVIDING LINE FOR
PURPOSES OF ASCERTAINING WHETHER A JURY TRIAL IS REQUIRED UNDER THE
SIXTH AMENDMENT, MR. JUSTICE REHNQUIST'S DISSENT IMPLICITLY QUESTIONS
THE AUTHENTICITY OF THIS RULE.  PUTTING ASIDE WHETHER THE
"CONSTITUTIONAL RULE OF BLOOM" EVER "EVOLVED" INTO THE PRESENT RULE, IT
IS SUFFICIENT TO NOTE THAT ALTHOUGH ONLY THREE MEMBERS OF THE COURT
EXPLICITLY EMBRACED THE SIX-MONTH DEMARCATION POINT IN BALDWIN V. NEW
YORK, 399 U.S. 66 (1970), MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS
CONCURRED IN THE JUDGMENT.  WHILE READING THE SIXTH AMEMDMENT TO
REQUIRE A JURY TRIAL FOR "ALL CRIMES," THEY EXPRESSED THE VIEW THAT
IMPRISONMENT FOR MORE THAN SIX MONTHS WOULD CERTAINLY NECESSITATE A
JURY TRIAL.  FIVE MEMBERS OF THE COURT OUT OF THE EIGHT PARTICIPATING
THEREFORE AGREED THAT, AT THE VERY LEAST, THE SIXTH AMENDMEMT REQUIRES
A JURY TRIAL IN ALL CRIMINAL PROSECUTIONS WHERE THE TERM OF
IMPRISONMENT AUTHORIZED BY STATUTE EXCEEDS SIX MONTHS. 

/5/  MY BROTHER REHNQUIST SUBMITS THAT PETITIONERS ARE NOT ENTITLED
TO A JURY TRIAL BECAUSE THEY WERE ORIGINALLY TRIED AND CONVICTED OF
CONTEMPT IN 1966, TWO YEARS BEFORE THIS COURT'S DECISIONS IN DUNCAN V.
LOUISIANA, 391 U.S. 145 (1968), AND BLOOM V. ILLINOIS, 391 U.S. 194
(1968), WHICH WE HELD IN DESTEFANO V. WOODS, 392 U.S. 631 (1968),
SHOULD RECEIVE ONLY PROSPECTIVE APPLICATION.  HIS DISSENT FINDS FURTHER
SUPPORT FOR ITS CONCLUSION IN JENKINS V. DELAWARE, 395 U.S. 213 (1969),
WHERE THE COURT HELD THAT MIRANDA V. ARIZONA, 384 U.S. 436 (1966), DID
NOT APPLY TO PERSONS WHOSE RETRIALS HAD COMMENCED AFTER THE DATE OF THE
MIRANDA DECISON IF THEIR ORIGINAL TRIALS HAD BEGUN BEFORE THAT DATE. 
THIS VIEW, HOWEVER, REPRESENTS A FUNDAMENTAL MISREADING OF THE REACH OF
THESE DECISIONS AND THEIR APPLICABILITY TO THE PECULIAR CIRCUMSTANCES
OF THIS CASE.  DESTEFANO UNMISTAKABLY STATES THAT "WE WILL NOT REVERSE
STATE CONVICTIONS FOR FAILURE TO GRANT JURY TRIAL WHERE TRIALS BEGAN
PRIOR TO MAY 20, 1968, THE DATE OF THIS COURT'S DECISIONS IN DUNCAN V.
LOUISIANA AND BLOOM V. ILLINOIS."  392 U.S., AT 635 (EMPHASIS ADDED). 
DESTEFANO DID NOT EXEMPT FROM THE JURY-TRIAL REQUIREMENTS TRIALS
BEGINNING AFTER THAT DATE, AND HERE PETITIONERS' CONVICTIONS OCCURRED
IN A TRIAL THAT BEGAN OVER THREE AND ONE-HALF YEARS AFTER THE DUNCAN
AND BLOOM DECISIONS.  THE BOUNDARIES FOR THE RETROACTIVE IMPACT OF
DUNCAN AND BLOOM WERE ADVISEDLY ESTABLISHED, FOR THE JURY-TRIAL
REQUIREMENTS, BY DEFINITION, RELATES TO TRIALS, NOT TO UNCORRECTABLE
POLICE CONDUCT WHICH OCCURED PRIOR TO TRIAL AND WHICH, IF ILLEGAL,
WOULD PRECLUDE THE USE OF PERHAPS CRITICAL EVIDENCE GATHERED IN
RELIANCE ON THEN-EXISTING LAW.  JENKINS V. DELAWARE INVOLVED THE LATTER
CONSIDERATIONS AND HAS LITTLE BEARING HERE. 

/6/  "WHEN CONSTITUTIONAL RIGHTS TURN ON THE RESOLUTION OF A FACTUAL
DISPUTE WE ARE DUTY BOUND TO MAKE AN INDEPENDENT EXAMINATION OF THE
EVIDENCE IN THE RECORD.  SEE, E.G., EDWARDS V. SOUTH CAROLINA, 372 U.S.
229, 235; BLACKBURN V. ALABAMA, 361 U.S. 199, 205, N,5."  BROOKHART V.
JANIS, 384 U.S. 1, 4N.4 (1966). 

MR. JUSTICE MARSHALL, CONCURRING IN PART. 

I CONCUR IN THE JUDGMENT OF THE COURT, AND IN PARTS I AND III OF THE
COURT'S OPINION.  HOWEVER, I CANNOT JOIN PART II OF THE OPINION, WHICH
SUGGESTS THAT THE TRIAL JUDGE IN A SITUATION SUCH AS WE HAVE HERE COULD
IMPOSE AN UNLIMITED NUMBER OF SEPARATE, CONSECUTIVE SIX-MONTH SENTENCES
UPON A DEFENDANT "FOR SEPARATE CONTEMPTUOUS ACTS DURING TRIAL," SO LONG
AS THE JUDGE CONVICTS AND PUNISHES SUMMARILY UPON THE OCCURRENCE OF
EACH CONTEMPTUOUS ACT.  IN MY VIEW, THE SIXTH AMENDMENT RIGHT TO JURY
TRIAL WOULD BE EQUALLY APPLICABLE TO THIS SITUATION. 

   I 

THE COURT'S OPINION OBSERVES THAT "(THE SIXTH AMENDMENT REPRESENTS A
'DEEP COMMITMENT OF THE NATION TO THE RIGHT OF JURY TRIAL IN SERIOUS
CRIMINAL CASES AS A DEFENSE AGAINST ARBITRARY LAW ENFORCEMENT.'"  ANTE,
AT 515 - 516, QUOTING DUNCAN V. LOUISIANA, 391 U.S. 145, 156 (1968). 
THE OPINION FURTHER RECOGNIZES THAT IT IS THE TRIAL JUDGE WHO IN A
SINGLE PROCEEDING ACTS AS PROSECUTOR, "DETERMINING) WHICH AND HOW MANY
ACTS OF CONTEMPT THE CITATION WILL COVER"; AS TRIER OF FACT,
"DETERMINING) GUILT OR INNOCENCE ABSENT A JURY"; AND AS JUDGE,
"IMPOSING) THE SENTENCES AND . . . DETERMINING) WHETHER THEY WILL RUN
CONSECUTIVELY OR CONCURRENTLY."  ANTE, AT 515.  THUS, THE COURT
CONCLUDES, "THERE IS POSED THE VERY LIKELIHOOD OF ARBITRARY ACTION THAT
THE REQUIREMENT OF JURY TRIAL WAS INTENDED TO AVOID OR ALLEVIATE." 
IBID.  I AGREE.  BUT I COMPLETELY FAIL TO SEE HOW THERE IS ANY LESS
LIKELIHOOD OF SUCH ARBITRARY ACTION BY A JUDGE WHEN HE ACTS BY A
DEFENDANT AS IT OCCURS, RATHER THEN AWAITING THE END OF TRIAL TO TRY
THE CONTEMPTS.  INDEED, THE SUGGESTION PROVIDES AN INCENTIVE FOR A
TRIAL JUDGE TO ACT IN THE HEAT OF THE MOMENT, AND THUS ENCOURAGES THE
VERY ARBITRARY ACTION WHICH IT IS THE PURPOSE OF THE SIXTH AMENDMENT TO
ELIMINATE. 

WE HAVE HELD THAT A SIX-MONTH SENTENCE IS THE CONSTITUTIONAL
DIVIDING LINE BETWEEN SERIOUS OFFENSES FOR WHICH TRIAL BY JURY MUST BE
AFFORDED AND PETTY OFFENSES, AND THAT IN CONTEMPT CASES IT IS THE
SENTENCE ACTUALLY IMPOSED RATHER THAN THE PENALTY AUTHORIZED BY LAW
WHICH IS DETERMINATIVE.  ACCORDINGLY, THE COURT TODAY HOLDS THAT
CODISPOTI AND LANGNES ARE CONSTITUTIONALLY ENTITLED TO A JURY TRIAL
BECAUSE "(IN TERMS OF THE SENTENCE IMPOSED, WHICH WAS OBVIOUSLY SEVERAL
TIMES MORE THAN SIX MONTHS, EACH CONTEMNOR WAS TRIED FOR WHAT WAS
EQUIVALENT TO A SERIOUS OFFENSE."  ANTE, AT 517.  THE COURT REJECTS THE
STATE'S ARGUMENT THAT THE INDIVIDUAL CONTEMPTS WERE SEPARATE OFFENSES
FOR SIXTH AMENDMENT PURPOSES BY POINTING OUT THAT THE CONTEMPTS AROSE
FROM A SINGLE TRIAL, THAT THEY WERE CHARGED BY A SINGLE JUDGE, AND THAT
THE INDIVIDUAL SENTENCES WERE THEN AGGREGATED.  WITH ALL DUE RESPECT,
THE SAME WOULD BE TRUE IF THE JUDGE HAD IMPOSED SUMMARY PUNISHMENT AS
THE CONTEMPTUOUS ACTS OCCURRED.  WHERE THE CONTEMPTUOUS ACTS AROSE OUT
OF A SINGLE COURSE OF CONDUCT BY THE DEFENDANT, I THINK THAT THEY
SHOULD BE TREATED AS A SINGLE SERIOUS OFFENSE FOR WHICH THE SIXTH
AMENDMENT REQUIRES A JURY TRIAL, WHETHER THE JUDGE SEEKS TO USE HIS
SUMMARY CONTEMPT POWER IN INDIVIDUAL INSTANCES DURING TRIAL OR TRIES
THE CONTEMPTS TOGETHER AT THE END OF TRIAL.  SEE N. DORSEN & L.
FRIEDMAN, DISORDER IN THE COURT: REPORT OF THE ASSOCIATION OF THE BAR
OF THE CITY OF NEW YORK, SPECIAL COMMITTEE ON COURTROOM CONDUCT 222 -
224 (1973). 

THE ONLY JUSTIFICATION ADVANCED BY THE COURT TO SUPPORT THE CONTRARY
POSITION IS THE "OVERRIDING NECESSITY FOR INSTANT ACTION TO PRESERVE
ORDER."  ANTE, AT 515.  BUT WE REJECTED THIS VERY ARGUMENT IN BLOOM V.
ILLINOIS, 391 U.S. 194, 209 - 210 (1968).  THERE, TOO, IT WAS SUGGESTED
THAT AN EXCEPTION TO THE CONSTITUTIONAL RULE REQUIRING JURY TRIAL IN
SERIOUS CONTEMPT CASES SHOULD BE MADE FOR CONTEMPTS COMMITTED IN THE
PRESENCE OF THE JUDGE BECAUSE OF "THE NEED TO MAINTAIN ORDER AND A
DELIBERATIVE ATMOSPHERE IN THE COURTROOM."  ALTHOUGH WE ACKNOWLEDGED
THAT THERE WAS A "STRONG TEMPTATION" TO DO SO, WE HELD THAT THE NEED TO
MAINTAIN ORDER WAS NOT SUFFICIENT TO JUSTIFY AN EXCEPTION TO THE
CONSTITUTIONAL REQUIREMENT. 

        II 

EQUALLY IMPORTANT, I AM CONVINCED THAT THERE IS NO "OVERRIDING
NECESSITY" FOR REPEATED USE OF THE SUMMARY CONTEMPT POWER AGAINST A
CRIMINAL DEFENDANT TO MAINTAIN ORDER IN THE COURTROOM.  NO CLEARER
STATEMENT OF THE PROBLEM OF COURTROOM DISORDER AND ITS SOLUTION CAN BE
FOUND THAN MR. JUSTICE BLACK'S STATEMENT IN ILLINOIS V. ALLEN, 397 U.S.
337, 343 - 344 (1970): 

     "IT IS ESSENTIAL TO THE PROPER ADMINISTRATION OF CRIMINAL

  JUSTICE THAT DIGNITY, ORDER, AND DECORUM BE THE HALLMARKS OF ALL

COURT PROCEEDINGS IN OUR COUNTRY.  THE FLAGRANT DISREGARD IN THE

  COURTROOM OF ELEMENTARY STANDARDS OF PROPER CONDUCT SHOULD NOT

  AND CANNOT BE TOLERATED.  WE BELIEVE TRIAL JUDGES CONFRONTED WITH

  DISRUPTIVE, CONTUMACIOUS, STUBBORNLY DEFIANT DEFENDANTS MUST BE

  GIVEN SUFFICIENT DESCRETION TO MEET THE CIRCUMSTANCES OF EACH

  CASE.  NO ONE FORMULA FOR MAINTAINING THE APPROPRIATE COURTROOM

  ATMOSPHERE WILL BE BEST IN ALL SITUATIONS.  WE THINK THERE ARE AT

  LEAST THREE CONSTITUTIONALLY PERMISSIBLE WAYS FOR A TRIAL JUDGE

TO HANDLE AN OBSTREPEROUS DEFENDANT LIKE ALLEN: (1) BIND AND GAG

  HIM, THEREBY KEEPING HIM PRESENT; (2) CITE HIM FOR CONTEMPT; (3)

  TAKE HIM OUT OF THE COURTROOM UNTIL HE PROMISES TO CONDUCT

  HIMSELF PROPERLY." 

THE COURT IN ALLEN SET OUT THREE ALTERNATIVE WAYS OF DEALING WITH
COURTROOM DISORDER.  TODAY MY BROTHERS SINGLE OUT ONE OF THESE THREE
ALTERNATIVES AND SANCTION THE USE OF SERIATIM JUDGE-IMPOSED SIX-MONTH
SENTENCES TO MAINTAIN ORDER AND A DELIBERATIVE ATMOSPHERE IN THE
COURTROOM BECAUSE OF THE NECESSITY FOR THIS REMEDY.  THERE IS NOTHING
IN ALLEN, HOWEVER, THAT APPROVES A SUCCESSION OF JUDGE-IMPOSED SIX
MONTH CONTEMPT CITATIONS IN ONE TRIAL, AND I HAVE BEEN UNABLE TO FIND
ANY OF OUR CASES GIVING SUCH SPECIFIC AUTHORIZATION.  THIS IS TOO BIG A
STEP TO TAKE WHERE SUCH A POSITIVE DECLARATION OF LAW IS NOT NECESSARY
FOR THE DECISION OF THE CASE AT HAND.     THE AVAILABILITY OF THE OTHER
REMEDIES SET FORTH IN ALLEN IS PERSUASIVE PROOF THAT COURTROOM DISORDER
CAN BE EFFECTIVELY DEALT WITH WITHOUT THE USE OF REPEATED SUMMARY
CONTEMPTS RESULTING IN LENGTHY JAIL TERMS.  SEE N. DORSEN & L.
FRIEDMAN, SUPRA, AT 265.  INDEED, REPEATED CONTEMPT CITATIONS ARE
PROBABLY THE LEAST EFFECTIVE WAY TO DEAL WITH THE PROBLEM.  THE VERY
FACT THAT A SERIES OF CONTEMPT CITATIONS HAS FAILED TO CHECK THE
DEFENDANT'S CONTEMPTUOUS ACTS AND RESTORE A DELIBERATIVE ATMOSPHERE IN
THE COURTROOM ITSELF DEMONSTRATES THAT ANOTHER CITATION IS UNLIKELY TO
DO SO.  EITHER OF THE OTHER TWO ALTERNATIVES SET FORTH IN ALLEN WOULD
CORRECT RATHER THAN PROLONG THE DISRUPTIONS OF AN ORDERLY TRAIL. 
RATHER THAN PERMIT THE USE OF REPEATED CONTEMPT CITATIONS RESULTING IN
A SENTENCE OF SIX MONTHS, ALLEN SUGGESTS THAT AFTER AN INITIAL WARNING,
SEE 397 U.S., AT 350 (BRENNAN, J., CONCURRING), THE NEXT DISRUPTION
COULD BE PUNISHED WITH A CONTEMPT CITATION AND A SIX-MONTH SENTENCE,
PLUS A FIRM WARNING THAT ANY FURTHER DISRUPTION WILL BE FOLLOWED BY
BINDING OR GAGGING THE DEFENDANT OR REMOVING HIM FROM THE COURTROOM
UNTIL HE PROMISES TO CONDUCT HIMSELF PROPERLY.  THIS APPROACH WOULD BE
MORE EFFECTIVE IN MAINTAINING THAT "DIGNITY, ORDER, AND DECORUM" OF
WHICH MR. JUSTICE BLACK SPOKE IN ALLEN THAN SUCCESSIVE CONTEMPT
CITATIONS AFTER FUTURE DISRUPTIONS, WITHOUT RUNNING AFOUL OF THE SIXTH
AMENDMENT'S RIGHT TO JURY TRIAL. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
STEWART, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

IN BLOOM V. ILLINOIS, 391 U.S. 194 (1968), THIS COURT ESTABLISHED A
CONSTITUTIONAL RIGHT TO A JURY TRIAL OF A CHARGE FOR A CRIMINAL
CONTEMPT WHERE THE PENALTY IMPOSED EXCEEDED SIX MONTHS.  THERE THE
CONTEMPT CONSISTED OF A LAWYER'S FILING A SPURIOUS WILL FOR PROBATE. 
IT WAS NOT A DIRECT CONTEMPT IN OPEN COURT.  WHERE, AS IN BLOOM, THE
CRIMINAL CONTEMPT TAKES PLACE OUTSIDE THE PRESENCE OF THE COURT, THERE
IS LITTLE TO DISTINGUISH THE CONTEMPT, FOR PURPOSES OF USING A JURY AS
THE FACTFINDER, FROM THE RUN-OF-THE-MILL CRIMINAL OFFENSE.  IN THIS
RESPECT, THE RESULT IN BLOOM WAS A LOGICAL ONE. 

IN THE PRESENT CASE, HOWEVER, THE CONTEMPT TOOK PLACE IN OPEN COURT
AND THE INCIDENT AND ALL ITS DETAILS ARE FULLY PRESERVED ON THE TRIAL
RECORD.  THE COURT'S OPINION DOES NOT SPECIFY AND LEAVES UNCLEAR WHAT
FACTS, IF ANY, REMAIN TO BE DETERMINED.  I AM AT A LOSS, THEREFORE, TO
SEE THE ROLE A JURY IS TO PERFORM.  THE PERCEIVED NEED TO REMOVE THE
CASE FROM THE CONTEMNED JUDGE IS FULLY SERVED BY ASSIGNING THE CASE TO
A DIFFERENT JUDGE.  SEE TAYLOR V. HAYES, ANTE, P. 488; MAYBERRY V.
PENNSYLVANIA, 400 U.S. 455 (1971).  AND, AS MR. JUSTICE REHNQUIST
POINTS OUT, SINCE THE NEW JUDGE, NOT THE JURY, WILL IMPOSE THE
SENTENCE, THERE IS NOTHING THE JURY CAN DO BY WAY OF MITIGATING AN
EXCESSIVE PUNISHMENT. 

THE DETERMINATION OF WHETHER BASICALLY UNDISPUTED FACTS CONSTITUTE A
DIRECT CRIMINAL CONTEMPT IS A PARTICULARLY INAPPROPRIATE TASK FOR THE
JURY.  BEFORE TODAY, THIS DETERMINATION HAS ALWAYS BEEN THE EXCLUSIVE
PROVINCE OF THE COURT, NOT THE JURY, AND NEVER BEFORE HAS THIS COURT
REQUIRED A JURY TRIAL IN A CASE INVOLVING A DIRECT CONTEMPT.  /1/
SINCE I BELIEVE, AS A PRACTICAL MATTER, THAT THERE IS NO FUNCTION FOR A
JURY TO SERVE IN A CASE SUCH AS THIS, I DO NOT JOIN THE COURT'S
EXTENTION OF BLOOM TO INCLUDE DIRECT, IN COURT CONTEMPTS.  I,
THEREFORE, RESPECTFULLY DISSENT. 

/1/  IN BLOOM V. ILLINOIS, 391 U.S. 194, 210 (1968), THE COURT
ACKNOWLEDGED "A STRONG TEMPTATION TO MAKE EXCEPTION TO THE RULE WE
ESTABLISH TODAY FOR DISORDERS IN THE COURTROOM."  ALTHOUGH WHOLLY
UNNECESSARY TO ITS DECISION, THE COURT THERE RESISTED THAT TEMPTATION
AND DECLINED TO RECOGNIZE THE EXCEPTION.  IN MY OPINION, THE RESULT IN
BLOOM, AN OUT-OF COURT CONTEMPT, DOES NOT LEAD INEVITABLY TO THE RESULT
REACHED TODAY IN CODISPOTI'S CASE, AND I DECLINE TO FOLLOW BLOOM'S
DICTUM THAT CARRIED THE CONTRARY IMPLICATION. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE JOINS AS TO PART
II, DISSENTING.  /0/ 

THESE TWO CASES ARE GRAPHIC ILLUSTRATIONS OF THE MANNER IN WHICH
CONSTITUTIONAL LIMITATIONS ON THE POWER OF A TRIAL JUDGE TO SUMMARILY
PUNISH FOR CONTEMPT HAVE BEEN FASHIONED VIRTUALLY OUT OF WHOLE CLOTH BY
THIS COURT IN THE COURSE OF ONLY 20-ODD YEARS.  IN SACHER V. UNITED
STATES, 343 U.S. 1 (1952), THE COURT, SPEAKING THROUGH MR. JUSTICE
JACKSON, SAID: 

     "SUMMARY PUNISHMENT ALWAYS, AND RIGHTLY IS REGARDED WITH

  DISFAVOR AND, IF IMPOSED IN PASSION OR PETTINESS, BRINGS

  DISCREDIT TO A COURT AS CERTAINLY AS THE CONDUCT IT PENALIZES. 

  BUT THE VERY PRACTICAL REASONS WHICH HAVE LED EVERY SYSTEM OF LAW

  TO VEST A CONTEMPT POWER IN ONE WHO PRESIDES OVER JUDICIAL

  PROCEEDINGS ALSO ARE THE REASONS WHICH ACCOUNT FOR IT BEING MADE

SUMMARY . . . . THE RIGHTS AND IMMUNITIES OF ACCUSED PERSONS

  WOULD BE EXPOSED TO SERIOUS AND OBIVOUS ABUSE IF THE TRIAL BENCH

  DID NOT POSSESS AND FREQUENTLY EXERT POWER TO CURB PREJUDICIAL

  AND EXCESSIVE ZEAL OF PROSECUTORS.  THE INTERESTS OF SOCIETY IN

  THE PRESERVATION OF COURTROOM CONTROL BY THE JUDGES ARE NO MORE

  TO BE FRUSTRATED THROUGH UNCHECKED IMPROPRIETIES BY DEFENDERS." 

  ID., AT 8 

THE COURT'S DECISIONS TODAY ARE THE CULMINATION OF A RECENT TREND OF
CONSTITUTIONAL INNOVATION WHICH VIRTUALLY EMASCULATES THIS HISTORIC
POWER OF A TRIAL JUDGE.  IF THE COURT'S HOLDINGS IN THIS AREA WERE THE
PRODUCT OF ANY NEW HISTORICAL INSIGHT INTO THE MEANING OF THE
FOURTEENTH AMENDMENT, OR IF INDEED THEY COULD BE REGARDED AS A
DESIRABLE PROGRESSION TOWARD A REIGN OF LIGHT AND LAW, EVEN THOUGH OF
DUBIOUS CONSTITUTIONAL ANCESTRY, THERE WOULD BE LESS OCCASION FOR
CONCERN.  BUT FORM THE HODGEPODGE OF LEGAL DOCTRINE EMBODIED IN THESE
DECISIONS, WHICH HAVE IRRETRIEVABLY BLENDED TOGETHER CONSTITUTIONAL
GUARANTEES OF JURY TRIAL IN CRIMINAL CASES, CONSTITUTIONAL GUARANTEES
OF IMPARTIAL JUDGES, AND FRAGMENTS OF THE LAW OF CONTEMPT IN FEDERAL
COURTS, THE ONLY CONSISTENT THREAD WHICH EMERGES IS THIS COURT'S
INVETERATE PROPENSITY TO SECOND-GUESS THE TRIAL JUDGE. 

        I 

IN TAYLOR V. HAYES, ANTE, P. 488, THE COURT HOLDS, SQUARELY CONTRARY
TO THE HOLDING IN SACHER, SUPRA, THAT THE RESPONDENT TRIAL JUDGE WAS
NOT ENTITLED TO PROCEED SUMMARILY AGAINST PETITONER, EVEN THOUGH ALL OF
THE CONDUCT IN QUESTION OCCURRED IN THE PRESENCE OF RESPONDENT.  THE
COURT APPARENTLY CONCLUDES THAT SINCE RESPONDENT DID NOT SENTENCE
PETITIONER UNTIL AFTER THE PROCEEDINGS AT ISSUE WERE COMPLETED, AND AT
THAT POINT REFUSED TO PERMIT PETITIONER TO RESPOND, PETITIONER'S DUE
PROCESS RIGHTS WERE VIOLATED. 

THIS CONCLUSION IS COMPLETELY AT ODDS WITH SACHER.  THAT CASE
INVOLVED THE CONTEMPT CONVICTIONS OF VARIOUS DEFENSE COUNSEL AS AN
AFTERMATH OF THE TRIAL OF VARIOUS COMMUNIST PARTY LEADERS ON CHARGES OF
VIOLATING THE SMITH ACT.  UPON RECEIVING THE GUILTY VERDICT, JUDGE
MEDINA OF THE SOUTHERN DISTRICT OF NEW YORK AT ONCE FILED A CERTIFICATE
UNDER FED. RULE CRIM. PROC. 42 (A), FINDING VARIOUS DEFENSE COUNSEL,
INCLUDING ONE DEFENDANT WHO HAD REPRESENTED HIMSELF, GUILTY OF
CONTEMPT.  FEDERAL RULE CRIM. PROC. 42 (A) PROVIDED THEN, AS IT DOES
NOW, THAT "(A) CRIMINAL CONTEMPT MAY BE PUNISHED SUMMARILY IF THE JUDGE
CERTIFIES THAT HE SAW OR HEARD THE CONDUCT CONSTITUTING THE CONTEMPT
AND THAT IT WAS COMMITTED IN THE ACTUAL PRESENCE OF THE COURT.  THE
ORDER OF CONTEMPT SHALL RECITE THE FACTS AND SHALL BE SIGNED BY THE
JUDGE AND ENTERED OF RECORD."  THE CONTEMNORS ARGUED THAT SINCE JUDGE
MEDINA HAD WAITED UNTIL THE END OF THE TRIAL TO SENTENCE THEM, THE
POWER OF SUMMARY PUNISHMENT FOR DIRECT CONTEMPTS UNDER RULE 42 (A) HAD
EXPIRED, AND THE PROVISIONS OF RULE 42 (B) REQUIRING NOTICE AND HEARING
BECAME APPLICABLE.  THIS COURT IN SACHER REJECTED THAT CONTENTION: 

     "THE RULE IN QUESTION CONTEMPLATES THAT OCCASIONS MAY ARISE

WHEN THE TRIAL JUDGE MUST IMMEDIATELY ARREST ANY CONDUCT OF SUCH

  NATURE THAT ITS CONTINUANCE WOULD BREAK UP A TRIAL, SO IT GIVES

  HIM POWER TO DO SO SUMMARILY.  BUT THE PETITIONERS HERE CONTEND

  THAT THE RULE NOT ONLY PERMITS BUT REQUIRES ITS INSTANT EXERCISE,

  SO THAT ONCE THE EMERGENCY HAS BEEN SURVIVED PUNISHMENT MAY NO

  LONGER BE SUMMARY BUT CAN ONLY BE ADMINISTERED BY THE ALTERNATIVE

  METHOD ALLOWED BY RULE 42 (B).  WE THINK 'SUMMARY' AS USED IN

  THIS RULE DOES NOT REFER TO THE TIMING OF THE ACTION WITH

  REFERENCE TO THE OFFENSE BUT REFERS TO A PROCEDURE WHICH

DISPENSES WITH THE FORMALITY, DELAY AND DIGRESSION THAT WOULD

  RESULT FROM THE ISSUANCE OF PROCESS, SERVICE OF COMPLAINT AND

  ANSWER, HOLDING HEARINGS, TAKING EVIDENCE, LISTENING TO

  ARGUMENTS, AWAITING BRIEFS, SUBMISSION OF FINDINGS, AND ALL THAT

  GOES WITH A CONVENTIONAL COURT TRIAL.  THE PURPOSE OF THAT

  PROCEDURE IS TO INFORM THE COURT OF EVENTS NOT WITHIN ITS OWN

  KNOWLEDGE.  THE RULE ALLOWS SUMMARY PROCEDURE ONLY AS TO OFFENSES

  WITHIN THE KNOWLEDGE OF THE JUDGE BECAUSE THEY OCCURRED IN HIS

  PRESENCE. 

  ". . . TO SUMMON A LAWYER BEFORE THE BENCH AND PRONOUNCE HIM

  GUILTY OF CONTEMPT IS NOT UNLIKELY TO PREJUDICE HIS CLIENT.  IT

  MIGHT BE DONE OUT OF THE PRESENCE OF THE JURY, BUT WE HAVE HELD

  THAT A CONTEMPT JUDGMENT MUST BE PUBLIC.  ONLY THE NAIVE AND

  INEXPERIENCED WOULD ASSUME THAT NEWS OF SUCH ACTION WILL NOT

  REACH THE JURORS.  IF THE COURT WERE REQUIRED ALSO THEN TO

  PRONOUNCE SENTENCE, A CONSTRUCTION QUITE AS CONSISTENT WITH THE

  TEXT OF THE RULE AS PETITIONERS' PRESENT CONTENTION, WOULD ADD TO

  THE PREJUDICE.  . . ."  343 U.S., AT 9 - 10. 

AT NO POINT DID THE COURT IN SACHER SUGGEST THAT THE PROCEDURES SET
FORTH IN RULE 42 (A) WERE SUBJECT TO ANY CONSTITUTIONAL INFIRMITY.  YET
BY THE DECISION IN TAYLOR V. HAYES, THE COURT HAS NOW HELD THAT
PROCEDURES UPHELD WITHIN THE UNITARY CONFINES OF THE FEDERAL COURT
SYSTEM ONLY TWO DECADES AGO MAY NOT NOW BE CONSTITUTIONALLY EMPLOYED BY
A STATE.  THE DECISION IN TAYLOR WILL SURELY COME AS SOMETHING OF A
SHOCK TO FEDERAL JUDGES WHO MUST NOW DECIDE WHETHER THEY MAY
CONSTITUTIONALLY UTILIZE THE PROVISIONS OF FED. RULE CRIM. PROC. 42 (A)
IN PUNISHING DIRECT CONTEMPTS. 

OUR PRIOR DECISIONS HAVE CONTINUOUSLY ADHERED TO THE VIEW THAT
"(WHERE THE CONTEMPT IS COMMITTED DIRECTLY UNDER THE EYE OR WITHIN THE
VIEW OF THE COURT, IT MAY PROCEED 'UPON ITS OWN KNOWLEDGE OF THE FACTS,
AND PUNISH THE OFFENDER, WITHOUT FURTHER PROOF, AND WITHOUT ISSUE OR
TRIAL IN ANY FORM.'"  IN RE SAVIN, 131 U.S. 267, 277 (1889), QUOTING EX
PARTE TERRY, 128 U.S. 289, 309 (1888).  SEE COOKE V. UNITED STATES, 267
U.S. 517, 535 (1925); FISHER V. PACE, 336 U.S. 155, 159 - 160 (1949). 
/1/  IT IS ONLY WHEN THE CONTEMPT IS NOT A DIRECT ONE, I. E., OBSERVED
BY THE JUDGE HIMSELF, THAT THE POWER TO PROCEED SUMMARILY BECOMES
SUBJECT TO SOME QUALIFICATION.  IN RE OLIVER, 333 U.S. 257, 274 - 276
(1948). 

GROPPI V. LESLIE, 404 U.S. 496 (1972), RELIED UPON BY THE COURT, WAS
A WHOLLY DIFFERENT CASE FROM TAYLOR.  IN GROPPI, THE ASSEMBLY OF THE
WISCONSIN LEGISLATURE PASSED A RESOLUTION CITING THE PETITIONER THERE
FOR CONTEMPT OF THAT BODY, WHICH HAD ALLEGEDLY OCCURRED TWO DAYS
PREVIOUSLY.  THIS COURT REVERSED THAT CONVICTION BECAUSE PETITIONER HAD
NOT BEEN AFFORDED ADEQUATE NOTICE AND HEARING.  THE COURT IN GROPPI
NOTED THAT SACHER WAS A DIFFERENT CASE BECAUSE IT INVOLVED COURTROOM
CONTEMPTS BY LAWYERS, WITH REPEATED WARNINGS BY THE JUDGE, AND AN
OPPORTUNITY ON THEIR BEHALF TO SPEAK.  TAYLOR IS NO DIFFERENT FROM
SACHER; RESPONDENT JUDGE REPEATEDLY WARNED PETITIONER OF HIS
CONTEMPTUOUS CONDUCT, AND WHEN HE INFORMED PETITIONER THAT HE WAS IN
CONTEMPT PERMITTED PETITIONER AN OPPORTUNITY TO SPEAK.  INDEED, THE
COURT IN TAYLOR INDICATES THAT IT AGREES WITH THE KENTUCKY COURT OF
APPEALS THAT "'(THE CONTEMPT CITATIONS AND THE SENTENCES COMING AT THE
END OF THE TRIAL WERE NOT AND COULD NOT HAVE BEEN A SURPRISE TO TAYLOR,
BECAUSE UPON EACH OCCASION AND IMMEDIATELY FOLLOWING THE CHARGED ACT OF
CONTEMPT THE COURT INFORMED TAYLOR THAT HE WAS AT THAT TIME IN CONTEMPT
OF COURT.'"  ANTE, AT 496 - 497, QUOTING 494 S.W. 2D 737, 741 - 742
(KY. 1973). 

EVEN WERE I IN AGREEMENT WITH THE COURT'S CONCLUSION THAT TAYLOR'S
CONTEMPT CONVICTION SHOULD BE REVERSED, I NEVERTHELESS COULD NOT JOIN
IN THE HOLDING THAT IF PETITIONER IS TO BE TRIED AGAIN, HE MAY NOT BE
TRIED BY RESPONDENT.  WHILE CONCEDING THAT PETITIONER'S CONDUCT DID NOT
CONSTITUTE THE KIND OF PERSONAL ATTACK ON RESPONDENT THAT WOULD PREVENT
THE LATTER FORM MAINTAINING THE CALM DETACHMENT NECESSARY FOR FAIR
ADJUDICATION, MAYBERRY V. PENNSYLVAINA, 400 U.S. 455 (1971), THE COURT
HOLDS THAT "IT APPEARS TO US THAT RESPONDENT DID BECOME ENBROILED IN A
RUNNING CONTROVERSY WITH PETITIONER."  ANTE, AT 501.  THIS PORTION OF
THE COURT'S HOLDING CAN ONLY BE DESCRIBED AS A TOTAL REPUDIATION OF THE
PRINCIPLE LAID DOWN IN SACHER: 

     "A CONSTRUCION OF THE RULE IS ADVOCATED WHICH WOULD DENY A

  JUDGE POWER SUMMARILY TO PUNISH A CONTEMPT THAT IS PERSONAL TO

  HIMSELF EXCEPT, PERHAPS, AT A MOMENT WHEN IT IS NECESSARY TO

 FORESTALL ABORTION OF THE TRIAL.  HIS ONLY RECOURSE, IT IS SAID,

  IS TO BECOME AN ACCUSER OR COMPLAINING WITNESS IN A PROCEEDING

  BEFORE ANOTHER JUDGE. 

      "THE RULE ITSELF EXPRESSES NO SUCH LIMITATION, AND THE
CONTRARY

  INFERENCE IS ALMOST INESCAPABLE.  IT IS ALMOST INEVITABLE THAT

  ANY CONTEMPT OF A COURT COMMITTED IN THE PRESENCE OF THE JUDGE

  DURING A TRIAL WILL BE AN OFFENSE AGAINST HIS DIGNITY AND

  AUTHORITY.  AT A TRIAL THE COURT IS SO MUCH THE JUDGE AND THE

  JUDGE SO MUCH THE COURT THAT THE TWO TERMS ARE USED

  INTERCHANGEABLY IN COUNTLESS OPINIONS IN THIS COURT AND GENERALLY

  IN THE LITERATURE OF THE LAW, AND CONTEMPT OF THE ONE IS CONTEMPT

  OF THE OTHER.  IT CANNOT BE THAT SUMMARY PUNISHMENT IS ONLY FOR

SUCH MINOR CONTEMPTS AS LEAVE THE JUDGE INDIFFERENT AND MAY BE

  EVADED BY ADDING HECTORING, ABUSIVE AND DEFIANT CONDUCT TOWARD

  THE JUDGE AS AN INDIVIDUAL.  SUCH AN INTERPRETATION WOULD

  NULLIFY, IN PRACTICE, THE POWER IT PRUPORTS TO GRANT."  343 U.S.,

  AT 11 - 12 (EMPHASIS ADDED). 

THE COURT IN SACHER WAS INTERPRETING THE LANGUAGE OF FED. RULE CRIM.
PROC. 42 (A), AND WITHOUT THE SLIGHTEST SUGGESTION THAT THERE MIGHT BE
CONSTITUTIONAL INFIRMITIES IN SUCH PROCEDURES, REFUSED TO REQUIRE
RETRIAL OF THE CONTEMNORS THERE BEFORE A DIFFERENT JUDGE.  TWELVE YEARS
LATER, IN A STATE CASE, UNGAR V. SARAFITE, 376 U.S. 575 (1964), THE
COURT REAFFIRMED THE PRINCIPLES OF SACHER, IN THE FACE OF AN ARGUMENT
THAT THE CONSTITUTION REQUIRED SOMETHING DIFFERENT.  THE COURT IN UNGAR
INDICATED THAT IT WAS "UNWILLING TO BOTTOM A CONSTITUTIONAL RULE OF
DISQUALIFICATION SOLELY UPON . . .DISOBEDIENCE TO COURT ORDERS AND
CRITICISM OF ITS RULINGS DURING THE COURSE OF A TRIAL.  . . . WE CANNOT
ASSUME THAT JUDGES ARE SO IRASCIBLE AND SENSITIVE THAT THEY CANNOT
FAIRLY AND IMPARTIALLY DEAL WITH RESISTANCE TO THEIR AUTHORITY OR WITH
HIGHLY CHARGED ARGUMENTS ABOUT THE SOUNDNESS OF THEIR DECISIONS."  ID.,
AT 584. 

TAYLOR IS NOT A FEDERAL CASE, WHERE THIS COURT MAY, IN THE EXERCISE
OF SOME PERCEIVED WISDOM OF THE APPROPRIATE POLICY TO BE FOLLOWED IN
THE ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS, SEE OFFUTT V.
UNITED STATES, 348 U.S. 11 (1954); COOKE V. UNITED STATES, 267 U.S. 517
(1925), MAY REQUIRE RETRIAL BEFORE ANOTHER JUDGE.  BY HOLDING IN TAYLOR
THAT THE RESPONDENT JUDGE SHOULD BE DISQUALIFIED FROM TRYING
PETITIONER'S CONTEMPT, THE COURT HAS NOW ADOPTED THE VERY
CONSTITUTIONAL RULE IT DISAVOWED IN UNGAR V. SARAFITE, SUPRA, AND FOUND
NOT EVEN WORTHY OF MENTION IN SACHER.  IN MAYBERRY V. PENNSYLVANIA,
SUPRA, A CASE IN WHICH THE DEFENDANT'S CONDUCT WAS SO EXTRAORDINARY
THAT EVEN THE COURT APPARENTLY CONCEDES IT AFFORDS NO PRECEDENT FOR
TODAY'S DECISION IN TAYLOR, IS PRECISELY THE OPPOSITE:  A JUDGE CAN BE
DRIVEN OUT OF A CASE BY ANY COUNSEL SUFFICIENTLY ASTUTE TO READ THE NEW
FOUND CONSTITUTIONAL PRINCIPLES ENUNCIATED IN THESE DECISIONS.  WHETHER
AS A MATTER OF POLICY THE ADDED PROCEDURAL RIGHTS CONFERRED UPON
CONTEMPTUOUS LAWYERS ARE WORTH THE SACRIFICE OF THE HISTORIC AUTHORITY
OF THE TRIAL JUDGE TO CONTROL PROCEEDINGS IN HIS COURT MAY BE OPEN TO
DEBATE, THE TOTAL ABSENCE OF ANY BASIS IN THE FOURTEENTH AMENDMENT FOR
THE RESULT WHICH THE COURT REACHES IN TAYLOR V. HAYES, IS TO ME CLEAR
BEYOND ANY DOUBT.  ACCORDINGLY, I DISSENT FROM THE COURT'S REVERSAL OF
THE CONVICTION IN THAT CASE.  /2/

    II 

THE CODISPOTI LITIGATION IN THIS COURT IS WORTHY OF A CHAPTER IN
CHARLES DICKENS' BLEAK HOUSE.  CODISPOTI AND LANGNES WERE CODEFENDANTS
WITH THE PETITIONER IN MAYBERRY V. PENNSYLVANIA, 400 U.S. 455 (1971),
ON CONTEMPT CHARGES IN THE PENNSYLVANIA COURTS AND WERE APPARENTLY
BENEFICIARIES OF THIS COURT'S JUDGMENT OF REVERSAL IN THAT CASE.  /3/
THE COURT'S CONCLUDING LANGUAGE IN ITS OPINION IN THAT CASE WAS THAT
"ON REMAND ANOTHER JUDGE, NOT BEARING THE STING OF THESE SLANDEROUS
REMARKS AND HAVING THE IMPERSONAL AUTHORITY OF THE LAW (SIT) IN
JUDGMENT ON THE CONDUCT OF PETITIONER AS SHOWN BY THE RECORD."  ID., AT
466.  PENNSYLVANIA CARRIED OUT THIS MANDATE TO THE LETTER, AND, AS THE
COURT POINTS OUT IN ITS OPINION, CODISPOTI AND LANGNES WERE TRIED
BEFORE A DIFFERENT JUDGE, AND RECEIVED ON RETRIAL SUBSTANTIALLY MORE
LENIENT SENTENCES THAN HAD BEEN IMPOSED IN THE FIRST INSTANCE. 
NONETHELESS, THE COURT IN ITS CODISPOTI OPINION TODAY, WITHOUT SO MUCH
AS BATTING AN EYE, NOW DECIDED THAT THESE PETITIONERS WERE ENTITLED TO
A JURY TRIAL.  IF THAT WERE THE CASE, AND DUNCAN V. LOUISIANA, 391 U.S.
145 (1968), AND BLOOM V. ILLINOIS, 391 U.S. 194 (1968), EACH DECIDED
THREE YEARS BEFORE MAYBERRY, REQUIRE SUCH A RESULT, IT WOULD SEEM TO
HAVE BEEN APPROPRIATE TO SO INDICATE IN MAYBERRY. 

IN HOLDING THAT DUNCAN AND BLOOM REQUIRE A JURY TRIAL FOR THE
PETITIONERS IN CODISPOTI, THE COURT DOES NOT SUFFICIENTLY DISTINGUISH
THE ANALOGOUS CASE OF JENKINS V. DELAWARE, 395 U.S. 213 (1969), WHICH
AT THE VERY LEAST STRONGLY SUGGESTS THAT PETITONERS WERE NOT ENTITLED
TO A JURY TRIAL UPON THEIR RETRIAL FOR CONTEMPT.  IN JENKINS, THE
PETITIONER HAD BEEN CONVICTED IN A STATE COURT OF MURDER AND BURGLARY. 
DURING THE PENDENCY OF HIS APPEAL IN THE SUPREME COURT OF DELAWARE,
THIS COURT DECIDED MIRANDA V. ARIZONA, 384 U.S. 436 (1966), AND JOHNSON
V. NEW JERSEY, 384 U.S. 719 (1966), WHICH HELD THAT THE DECISION IN
MIRANDA "APPLIES ONLY TO CASES IN WHICH THE TRIAL BEGAN AFTER THE DATE
OF (THE MIRANDA) DECISION . . ."  ID., AT 721 (EMPHASIS ADDED).  IN
REVERSING THE PETITIONER'S CONVICTION ON VARIOUS STATE GROUNDS, THE
SUPREME COURT OF DELAWARE ALSO DETERMINED, SUA SPONTE, THAT UNDER
JOHNSON V. NEW JERSEY, SUPRA, A STATEMENT OBTAINED FROM PETITIONER
WITHOUT FULLY ADVISING HIM OF HIS CONSTITUTIONAL RIGHTS WOULD BE
ADMISSIBLE AT HIS RETRIAL.  PETITIONER WAS RETRIED AND CONVICTED OF
SECOND-DEGREE MURDER, AND THE SUPREME COURT OF DELAWARE AGAIN
AFFIRMED.  THIS COURT AFFIRMED THE CONVICTION, REJECTING PETITONER'S
ARGUMENT THAT THE STATMENT SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.  WE
HELD THAT HE MIRANDA STANDARDS DO NOT APPLY TO PERSONS WHOSE RETRIALS
HAVE COMMENCED AFTER THE DATE OF THAT DECISION IF THEIR ORIGINAL TRIALS
HAD BEGUN BEFORE THAT DATE. 

CODISPOTI IS A SUBSTANTIALLY SIMILAR CASE.  CODISPOTI AND LANGNES
WERE ORIGINALLY TRIED AND CONVICTED OF CRIMINAL CONTEMPT IN 1966.  THIS
COURT DID NOT DECIDE DUNCAN V. LOUISIANA, SUPRA, AND BLOOM V. ILLINOIS,
SUPRA, UNTIL MAY 20, 1968.  AND IN DESTEFANO V. WOODS, 392 U.S. 631
(1968) (PER CURIAM), THE COURT HELD THAT THE DECISIONS IN DUNCAN AND
BLOOM WOULD NOT RETROACTIVELY APPLY TO "TRIALS (BEGUN) PRIOR TO MAY 20,
1968."  ID., AT 635.  SINCE THE ORIGINAL TRIAL OF THESE PETITIONERS
BEGAN PRIOR TO THE DATE OF THE DECISIONS IN DUNCAN AND BLOOM, UNDER
DESTEFANO THEY WOULD NOT HAVE BEEN ENTITLED TO THE BENEFIT OF THOSE
RULINGS AT THEIR ORIGINAL TRIALS.  AND JENKINS V. DELAWARE, SUPRA,
CERTAINLY SUGGESTS THAT SINCE PETITONERS' ORIGINAL TRIAL BEGAN PRIOR TO
THE DECISIONS IN DUNCAN AND BLOOM, THEY SHOULD NOT RECEIVE THE BENEFIT
OF THOSE CASES UPON THEIR RETRIAL.  THE COURT'S REJOINDER IS THAT
DUNCAN AND BLOOM ARE DIFFERENT CASES BECAUSE THEY INVOLVE JURY TRIALS
INSTEAD OF "UNCORRECTABLE POLICE CONDUCT WHICH OCCURRED PRIOR TO TRIAL
AND WHICH, IF ILLEGAL, WOULD PRECLUDE THE USE OF PERHAPS CRITICAL
EVIDENCE GATHERED IN RELIANCE ON THEN-EXISTING LAW."  BUT OUR DECISION
IN JOHNSON V. NEW JERSEY, SUPRA, THAT MIRANDA WAS TO HAVE ONLY
PROSPECTIVE APPLICATION DID NOT TURN ON WHEN THE POLICE CONDUCT AT
ISSUE OCCURRED.  THE COURT DOES NOT TELL US WHY THE RETRIAL RULE OF
JENKINS V. DELAWARE, SUPRA, IS NOT EQUALLY APPLICABLE TO THE JURY-TRIAL
REQUIREMENTS OF DUNCAN AND BLOOM, WHICH DESTEFANO SAYS DO NOT GOVERN
WHERE THE ORIGINAL TRIAL BEGAN PRIOR TO THE DATE OF THOSE DECISIONS. 

THE COURT'S DECISION IN BLOOM V. ILLINOIS, SUPRA, MARKED A SHARP
DEPARTURE FROM PRIOR CONSTITUTIONAL HOLDINGS UNDER THE FOURTEENTH
AMENDMENT.  EVEN WERE IT CLEAR THAT PETITIONERS WERE ENTITLED TO THE
BENEFIT OF BLOOM ON RETRIAL, FINAL ACCEPTANCE OF BLOOM'S HOLDING AS
GOVERNING CODISPOTI WOULD FIRST WARRANT EXAMINATION AS TO ITS PRACTICAL
EFFECTS.  BLOOM AN ATTORNEY, WAS CHARGED WITH CONTEMPT OF A STATE COURT
FOR HAVING FILED A SPURIOUS WILL FOR PROBATE.  BLOOM WAS A CLASSIC CASE
OF "INDIRECT CONTEMPT," ONE WHICH OCCURRED OUTSIDE OF THE PRESENCE OF
THE COURT, AND BLOOM WAS ACCORDED A FULL TRIAL BEFORE THE COURT. 
EVIDENCE WAS RECEIVED TENDING TO SHOW THAT A THIRD PARTY HAD ENGAGED
BLOOM TO DRAW A WILL AFTER THE DEATH OF THE PUTATIVE TESTATOR; BLOOM
WAS CONVICTED OF CONTEMPT BY THE COURT, AND WAS SENTENCED TO TWO YEARS'
IMPRISONMENT.  UNDER ILLINOIS LAW, NO MAXIMUM PUNISHMENT WAS PROVIDED
FOR CONVICTIONS FOR CRIMINAL CONTEMPT.  THIS COURT, RELYING ON DUNCAN
V. LOUISIANA, SUPRA, HELD THAT WHERE STATE LAW DID NOT PROVIDE A
MAXIMUM PUNISHMENT FOR CRIMINAL CONTEMPT, THE FOURTEENTH AMENDMENT
REQUIRED THAT THE PENALTY ACTUALLY IMPOSED ON THE CONTEMNOR BE THE
CONSTITUTIONAL INDICATOR OF THE SERIOUSNESS OF THE OFFENSE AND THE
RIGHT OF JURY TRIAL DEFINED BY DUNCAN.  SINCE DUNCAN HELD THAT A
PROSECUTION FOR A CRIME WITH A MAXIMUM PENALTY OF TWO YEARS WAS ONE FOR
A SERIOUS OFFENSE WITHIN THE TERMS OF THE SIXTH AND FOURTEENTH
AMENDMENTS, THE COURT HELD THAT BLOOM WAS ENTITLED TO A JURY TRIAL ON
THE CONTEMPT CHARGES. 

AS THE COURT'S OPINION TODAY IN TAYLOR V. HAYES, ANTE, AT 495 - 496,
MAKES CLEAR, THE CONSTITUTINAL RULE OF BLOOM HAS NOW EVOLVED INTO AT
RULE WHEREBY A CONTEMNOR MUST BE AFFORDED A JURY TRIAL WHERE EITHER A
PENALTY OVER SIX MONTHS IS AUTHORIZED BY STATUTE OR WHERE THE PENALTY
ACTUALLY IMPOSED EXCEEDS SIX MONTHS.  PRESUMABLY, THE CASE-LAW SUPPORT
FOR THIS CONCLUSION IS DUNCAN V. LOUISIANA, SUPRA, AND BALDWIN V. NEW
YORK, 399 U.S. 66 (1970), SINCE WE DEAL HERE, NOT WITH A FEDERAL CASE,
WHERE THIS COURT HAS IN THE EXERCISE OF SUPERVISORY AUTHORITY OVER THE
ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS APPLIED THIS SIX-MONTH
RULE, SEE CHEFF V. SCHNACKENBERG, 384 U.S. 373 (1966), BUT WITH A STATE
CASE WHERE ONLY THE CONSTITUTION MAY DICTATE SUCH A RULE.  DUNCAN V.
LOUISIANA, SUPRA, WAS A 7 - 2 OPINION WHICH HELD THAT WHERE THE CRIME
FOR WHICH A STATE COURT DEFENDANT WAS TRIED WAS PUNISHABLE BY A TWO
YEAR SENTENCE, THE FOURTEENTH AMENDMENT REQUIRED THE APPLICATION OF THE
SIXTH AMENDMENT GUARANTEE OF JURY TRIAL IN SERIOUS CRIMINAL CASES TO
STATE PROSECUTIONS.  MR. JUSTICE HARLAN, IN DISSENT, JOINED BY MR.
JUSTICE STEWART, FORCEFULLY ARGUED THAT THERE WAS NO INDICATION THAT
THE DRAFTERS OF THE FOURTEENTH AMENDMENT INTENDED TO MAKE THE SIXTH
AMENDMENT APPLICABLE TO THE STATES.  SEE FAIRMAN, DOES THE FOURTEENTH
AMENDMENT INCORPORATE THE BILL OF RIGHTS?  THE ORIGINAL UNDERSTANDING,
2 STAN.  L. REV. 5 (1949); MORRISON, DOES THE FOURTEENTH AMENDMENT
INCORPORATE THE BILL OF RIGHTS?  THE JUDICIAL INTERPRETATION, 2 STAN. 
L. REV. 140 (1949).  BALDWIN V. NEW YORK, SUPRA, OF COURSE, WAS A
PLURALITY OPINION OF THREE MEMBERS OF THIS COURT, WHICH EXTENDED THE
CONSTITUTIONAL JURY-TRIAL RULE OF DUNCAN V. LOUISIANA, SUPRA, TO ANY
STATE CRIMINAL OFFENSE WHERE THE PENALTY PERMITTED WAS OVER SIX
MONTHS.  MR. JUSTICE HARLAN, MR. CHIEF JUSTICE BURGER, AND MR. JUSTICE
STEWART DISSENTED. 

THE COURT IN CODISPOTI WOODENLY APPLIES THIS SIX-MONTH RULE TO THE
FACTS OF THAT CASE, WITHOUT ANY REGARD TO THE SIGNIFICANT DIFFERENCES
BETWEEN CODISPOTI AND BLOOM, AND WITHOUT REGARD TO THE IMPORT OF ITS
DECISION.  IN APPLYING THIS SIX-MONTH RULE OF DUBIOUS CONSTITUTIONAL
ORIGIN TO CONSECUTIVE SENTENCES ON COUNTS OF LESS THAN SIX MONTHS, IT
APPEARS THAT THE BALDWIN PLURALITY'S PROPOSITION THAT SIX MONTHS IS THE
CONSTITUTIONAL SINE QUA NON OF THE JURY-TRIAL REQUIREMENT UNDER THE
FOURTEENTH AMENDMENT NOW COMMANDS A MAJORITY OF THIS COURT ALMOST SUB
SILENTIO BY PASSAGE OF TIME RATHER THAN BY FORCE OF REASON. 

CODISPOTI AND LANGNES WERE CONVICTED ON THEIR RETRIAL OF VARIOUS
SEPARATE CONTEMPTUOUS ACTS, WERE SENTENCED FOR EACH ACT TO TERMS OF SIX
MONTHS OR LESS, WITH THE DIRECTION THAT THE SENTENCES BE SERVED
CONSECUTIVELY.  THE CONTEMNOR IN BLOOM WAS SENTENCED TO TWO YEARS FOR
ONE CONTEMPTUOUS ACT.  BLOOM'S CONTEMPT WAS AN INDIRECT ONE, AND HE WAS
ENTITLED UNDER ILLINOIS LAW TO THE NORMAL RIGHTS OF ANY TRIAL DEFENDANT
SAVE ONLY THE RIGHT TO A JURY TRIAL.  BY AWARDING HIM A CONSTITUTIONAL
RIGHT TO A JURY TRIAL, THIS COURT IN EFFECT REQUIRED THAT THE
FACTFINDING FUNCTION BE TRANSFERRED FROM THE JUDGE TO A JURY.  WHETHER
RIGHT OR WRONG AS A MATTER OF CONSTITUTIONAL LAW, THE HOLDING IN BLOOM
WAS AT LEAST INTELLIGIBLE.  BUT THE CONTEMPTS OF CODISPOTI AND LANGNES
WERE DIRECT, COMMITTED IN THE PRESENCE OF THE TRIAL JUDGE.  UPON
RETRIAL AFTER OUR DECISION IN MAYBERRY, SUPRA, THE CASE WAS TRIED
BEFORE ANOTHER PENNSYLVANIA JUDGE ON THE BASIS OF THE CERTIFICATE OF
CONTEMPT FILED BY THE JUDGE WHO HAD PRESIDED AT THE ORIGINAL CRIMINAL
TRIAL OF MAYBERRY, CODISPOTI OR LANGNES.  IT DOES NOT APPEAR THAT
EITHER CODISPOTI OR LANGNES SERIOUSLY CHALLENGED THE FACTUAL
ALLEGATIONS IN THE CERTIFICATE OF CONTEMPT, AND IT WOULD SEEM FAIR TO
SURMISE THAT THIS LACK OF FACTUAL DISPUTE IS TYPICAL OF A TRIAL BASED
ON A CERTIFICATE OF DIRECT CONTEMPT. 

THE COURT'S OPINION IN BLOOM SPOKE OF THE SERIOUSNESS OF AN OFFENSE
FOR WHICH A SENTENCE OF MORE THAN SIX MONTHS WAS IMPOSED, 391 U.S., AT
196 - 197, AND IT MIGHT BE THOUGHT FROM THE COURT'S OPINION IN
CODISPOTI TODAY THAT THE JURY WAS IN SOME WAY EXPECTED TO MITIGATE THE
HARSHNESS OF THE PUNISHMENT WHICH COULD BE VISITED UPON A CONTEMNOR. 
BUT THERE IS NO INDICATION WHATEVER IN THE RECORD BEFORE US THAT
PENNSYLVANIA LAW ALLOCATES ANY ROLE IN THE SENTENCING OF A CRIMINAL
DEFENDANT TO THE JURY.  THE JURY PRESUMABLY WILL HEAR EVIDENCE AS TO
RELATIVELY UNDISPUTED FACTS, AND IF IT RETURNS A VERDICT OF GUILTY A
SENTENCE WILL BE IMPOSED BY A JUDGE TRYING THE CASE.  IF IT IS THE
LENGTH OF SENTENCE WHICH IS TO BE THE CONTROLLING FACTOR IN DETERMINING
WHETHER A JURY TRIAL IS TO BE AWARDED, AND THE SEVERITY OF THE POSSIBLE
SENTENCE TO BE IMPOSED BY THE JUDGE WHICH PROVIDES THE CONSTITUTIONAL
BASIS FOR REQUIRING A JURY TRIAL, THE COURT'S APPLICATION OF BLOOM TO A
DIRECT CONTEMPT SEEMS QUESTIONABLE FOR MORE THAN ONE REASON.  THE
GUARANTEE OF JURY TRIAL ACCORDED TO THESE PETITIONERS IN NO WAY LIMITS
THE SENTENCE WHICH MAY BE IMPOSED BY THE TRIAL JUDGE IN THOSE CASES
WHERE A GUILTY VERDICT IS RETURNED BY THE JURY.  THE COURT HAS
SUCCEEDED ONLY IN REQUIRING PENNSYLVANIA TO ENGRAFT ONTO ITS
TRADITIONAL PROCEDURES FOR ADJUDICATING DIRECT CONTEMPTS A JUDICIAL
"FIFTH WHEEL" WITHOUT APPRECIABLY FURTHERING THE CONSTITUTIONAL GOALS
ENUNCIATED IN DUNCAN V. LOUISIANA, SUPRA, AND BLOOM V. ILLINOIS,
SUPRA. 

THE APPLICATION OF BLOOM TO THE CONSECUTIVE SENTENCES IMPOSED FOR
THE SEPERATE CONTEMPTUOUS ACTS OF CODISPOTI AND LANGNES IS MADE EVEN
MORE QUESTIONABLE IN LIGHT OF THE CONCESSION THAT THE RESULT WOULD BE
DIFFERENT IN OTHER FACT SITUATIONS.  IT IS INDICATED IN THE PART II
OPINION THAT A CONTEMNOR "MAY BE SUMMARILY TRIED FOR AN ACT OF CONTEMPT
DURING TRIAL AND PUNISHED BY A TERM OF NO MORE THAN SIX MONTHS.  NOR
DOES THE JUDGE EXHAUST HIS POWER TO CONVICT AND PUNISH SUMMARILY
WHENEVER THE PUNISHMENT IMPOSED FOR SEPARATE CONTEMPTUOUS ACTS DURING
TRIAL EQUALS OR EXCEEDS SIX MONTHS."  ANTE, AT 514.  THE UPSHOT OF
THIS, OF COURSE, IS THAT TRIAL JUDGES ARE SURELY TO BE INCLINED TO
ADJUDICATE AND PUNISH THE CONTEMPT DURING THE TRIAL RATHER THAN
AWAITING THE END OF THE TRIAL THAT IS MADE TO THIS OBVIOUS RESULT OF
THE HOLDING IS THE ADJURATION THAT "(SUMMARY CONVICTIONS DURING TRIAL
THAT ARE UNWARRANTED BY THE FACTS WILL NOT BE INVULNERABLE TO APPELLATE
REVIEW."  ID., AT 517.  WHAT THIS STATEMENT PORTENDS FOR THE FUTURE OF
THE COURT'S INVETERATE PROPENSITY TO SECOND-GUESS TRIAL JUDGES, IS, AS
THEY SAY, "ANYBODY'S GUESS." 

I DISSENT FROM THE COURT'S REVERSAL OF THE CONVICTIONS IN CODISPOTI
V. PENNSYLVANIA. 

/0/  (THIS OPINION APPLIES ALSO TO NO. 73 - 473, TAYLOR V. HAYES,
ANTE, P. 488.) 

/1/  SEE ALSO THE MORE THAN 50 CASES CITED IN UNITED STATES V.
BARNETT, 376 U.S. 681, 694 N.12 (1964). 

THE COURT IN EX PARTE TERRY, 128 U.S. 289 (1888), STATED: 

"WE HAVE SEEN THAT IT IS A SETTLED DOCTRINE IN THE JURISPRUDENCE
BOTH OF ENGLAND AND OF THIS COUNTRY, NEVER SUPPOSED TO BE IN CONFLICT
WITH THE LIBERTY OF THE CITIZEN, THAT FOR DIRECT CONTEMPTS COMMITTED IN
THE FACE OF THE COURT, AT LEAST ONE OF SUPERIOR JURISDICTION, THE
OFFENDER MAY, IN ITS DISCRETION, BE INSTANTLY APPREHENDED AND
IMMEDIATELY IMPRISONED, WITHOUT TRIAL OR ISSUE, AND WITHOUT OTHER PROOF
THAN ITS ACTUAL KNOWLEDGE OF WHAT OCCURED; AND THAT, ACCORDING TO AN
UNBROKEN CHAIN OF AUTHORITIES, REACHING BACK TO THE EARLIEST TIMES,
SUCH POWER, ALTHOUGH ARBITRARY IN ITS NATURE AND, LIABLE TO ABUSE, IS
ABSOLUTELY ESSENTIALTO THE PROTECTION OF THE COURTS IN THE DISCHARGE OF
THEIR FUNCTIONS.  WITHOUT IT, JUDICIAL TRIBUNALS WOULD BE AT THE MERCY
OF THE DISORDERLY AND VIOLENT, WHO RESPECT NEITHER THE LAWS ENACTED FOR
THE VINDICATION OF PUBLIC AND PRIVATE RIGHTS, NOR THE OFFICERS CHARGED
WITH THE DUTY OF ADMINISTERING THEM."  ID., AT 313.  SEE ALSO COOKE V.
UNITED STATES, 267 U.S., 534. 

/2/  I AGREE WITH THE COURT'S CONCLUSION THAT TAYLOR WAS NOT ENTITLED
TO A JURY TRIAL ON THE CONTEMPT CHARGES. 

/3/  THESE PETITIONERS WERE ORIGINALLY CONVICTED IN 1966 OF CRIMINAL
CONTEMPT OF A PENNSYLVANIA STATE COURT.  THEIR CODEFENDANT IN THOSE
PROCEEDINGS WAS RICHARD MAYBERRY, WHO WAS ALSO CONVICTED OF CONTEMPT. 
FROM THE AFFIRMANCE OF THOSE CONVICTIONS BY THE SUPREME COURT OF
PENNSYLVANIA, 434 PA. 478, 255 A.2D 131 (1969), ONLY MAYBERRY SOUGHT
REVIEW IN THIS COURT.  IN MAYBERRY V. PENNSYLVANIA, 400 U.S. 455
(1971), THIS COURT REVERSED MAYBERRY'S CONVICTION AND REMANDED FOR
RETRIAL BEFORE ANOTHER PENNSYLVANIA STATE COURT JUDGE.  THOUGH THE
RECORD IN THIS COURT IS UNCLEAR HOW IT CAME ABOUT, PENNSYLVANIA SOMEHOW
MADE BOTH CODISPOTI AND LANGNES THE BENEFICIARIES OF THE REMAND IN
MAYBERRY.  THEY WERE THUS RETRIED ON NEWLY FILED CHARGES OF CRIMINAL
CONTEMPT, BEFORE ANOTHER JUDGE; THEY WERE AGAIN CONVICTED, AND ON
SUBSEQUENT APPEAL TO THE APPELLATE COURTS OF PENNSYLVANIA, THEIR
CONVICTIONS WERE AFFIRMED.  IT IS CLEAR, HOWEVER, THAT THE REVERSAL OF
MAYBERY'S CONVICTION AND REMAND TO THE PENNSYLVANIA COURTS FOR RETRIAL,
WAS NOT INTENDED BY THIS COURT TO DISTURB THE ORIGINAL CONVICTIONS OF
CODISPOTI AND LANGNES, NOR TO AWARD THEM A RETRIAL IN THE PENNSYLVANIA
COURT.  WHETHER OR NOT PETITONERS HERE MAY, WITHOUT FURTHER TRIAL, NOW
BE INCARCERATED PURSUANT TO THE SENTENCES IMPOSED IN THE FIRST CONTEMPT
TRIAL AND AFFIRMED ON APPEAL BY THE PENNSYLVAINA COURTS IS, PRESUMABLY,
A MATTER OF PENNSYLVANIA LAW. 

JOHN J. DEAN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS GEORGE H. ROSS. 

ROBERT L. EBERHARDT ARGUED THE CAUSE FOR RESPONDENT PRO HAC VICE. 
WITH HIM ON THE BRIEF WAS ROBERT W. DUGGAN. 
..END :






WOLFF V. MCDONNELL, 418 U.S. 539 


       WOLFF, WARDEN, ET AL. V. MCDONNELL

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

    EIGHTH CIRCUIT

        NO. 73 - 679.  ARGUED APRIL 22, 1974--DECIDED JUNE 26,
1974;

           483 F.2D 1059, AFFIRMED IN PART, REVERSED IN PART, AND

           REMANDED. 


    RESPONDENT, ON BEHALF OF HIMSELF AND OTHER INMATES AT A

  NEBRASKA PRISON, FILED A COMPLAINT FOR DAMAGES AND INJUNCTIVE

  RELIEF UNDER 42 U.S.C. 1983, IN WHICH HE ALLEGED THAT

  DISCIPLINARY PROCEEDINGS AT THE PRISON VIOLATED DUE PROCESS; THAT

  THE INMATE LEGAL ASSISTANCE PROGRAM DID NOT MEET CONSTITUTIONAL

  STANDARDS; AND THAT THE REGULATIONS GOVERNING INMATES' MAIL WERE

  UNCONSTITUTIONALLY RESTRICTIVE.  AFTER AN EVIDENTIARY HEARING,

  THE DISTRICT COURT GRANTED PARTIAL RELIEF.  THOUGH REJECTING

  RESPONDENT'S PRECEDURAL DUE PROCESS CLAIM, THE COURT HELD THAT

  THE PRISON'S POLICY OF INSPECTING ALL ATTORNEY-PRISONER MAIL WAS

  IMPROPER AND THAT RESTRICTIONS ON INMATE LEGAL ASSISTENCE WERE

  NOT CONSTITUTIONALLY DEFECTIVE.  THE COURT OF APPEALS REVERSED

  WITH RESPECT TO THE DUE PROCESS CLAIM, HOLDING THAT THE

  PROCEDURAL REQUIREMENTS OUTLINED IN THE INTERVENING DECISIONS IN

  MORRISSEY V. BREWER, 408 U.S. 471, AND GAGNON V. SCARPELLI 411

  U.S. 778, SHOULD BE GENERALLY FOLLOWED IN PRISON DISCIPLINARY

  HEARINGS, BUT LEAVING THE SPECIFIC REQUIREMENTS (INCLUDING THE

  CIRCUMSTANCES IN WHICH COUNSEL MIGHT BE REQUIRED) TO BE

  DETERMINED BY THE DISTRICT COURT ON REMAND.  THE COURT OF APPEALS

  FURTHER HELD THAT PREISER V. RODRIQUEZ, 411 U.S. 475, FORBADE

RESTORATION OF GOOD-TIME CREDITS IN A 1983 SUIT BUT ORDERED

  EXPUNGED FROM PRISON RECORDS MISCONDUCT DETERMINATIONS REACHED IN

  PROCEEDINGS THAT HAD NOT COMPORTED WITH DUE PROCESS.  THE COURT

  GENERALLY AFFIRMED THE DISTRICT COURT'S JUDGMENT RESPECTING

  CORRESPONDENCE WITH ATTORNEYS, BUT ADDED SOME ADDITIONAL

  PRESCRIPTIONS AND ORDERED FURTHER PROCEEDINGS TO DETERMINE

  WHETHER THE STATE WAS MEETING ITS BURDEN UNDER JOHNSON V. AVERY,

  393 U.S. 483, TO PROVIDE LEGAL ASSISTANCE TO PRISONERS, A DUTY

  THE COURT FOUND TO EXTEND TO CIVIL RIGHTS CASES AS WELL AS HABEAS

  CORPUS PROCEEDINGS.  UNDER NEBRASKA'S DISCIPLINARY SCHEME

  FORFEITURE OR WITHHOLDING OF GOOD-TIME CREDITS OR CONFINEMENT IN

  A DISCIPLINARY CELL IS PROVIDED FOR SERIOUS MISCONDUCT.  TO

  ESTABLISH MISCONDUCT (1) A PRELIMINARY CONFERENCE IS HELD WITH

  THE CHIEF CORRECTIONS SUPERVISOR AND THE CHARGING PARTY, WHERE

  THE PRISONER IS ORALLY INFORMED OF THE CHARGE AND PRELIMINARILY

  DISCUSSES THE MERITS; (2) A CONDUCT REPORT IS PREPARED AND A

  HEARING HELD BEFORE THE PRISON'S DISCIPLINARY BODY, THE

  ADJUSTMENT COMMITTEE (COMPOSED OF THREE PRISON OFFICIALS), WHERE

  (3) THE INMATE CAN ASK QUESTIONS OF THE CHARGING PARTY.  HELD: 

     1.  THOUGH THE COURT OF APPEALS CORRECTLY HELD THAT
RESTORATION

OF GOOD-TIME CREDITS UNDER 1983 IS FORECLOSED UNDER PREISER,

  SUPRA, DAMAGES AND DECLARATORY AND OTHER RELIEF FOR IMPROPER

  REVOCATION OF GOOD-TIME CREDITS ARE COGNIZABLE UNDER THAT

  PROVISION.  PP. 553 - 555. 

     2.  A PRISONER IS NOT WHOLLY STRIPPED OF CONSTITUTIONAL

  PROTECTIONS, AND THOUGH PRISON DISCIPLINARY PROCEEDINGS DO NOT

  IMPLICATE THE FULL PANOPLY OF RIGHTS DUE A DEFENDANT IN A

  CRIMINAL PROSECUTION, SUCH PROCEEDINGS MUST BE GOVERNED BY A

MUTUAL ACCOMODATION BETWEEN INSTITUTIOANL NEEDS AND GENERALLY

  APPLICABLE CONSTITUTIONAL REQUIREMENTS.  PP. 555 - 556.  3. 

  SINCE PRISONERS IN NEBRASKA CAN ONLY LOSE GOOD-TIME CREDITS IF

  THEY ARE GUILTY OF SERIOUS MISCONDUCT, THE PROCEDURE FOR

  DETERMINING WHETHER SUCH MISCONDUCT HAS OCCURED MUST OBSERVE

  CERTAIN MINIMAL DUE PROCESS REQUIREMENTS (THOUGH NOT THE FULL

  RANGE OF PROCEDURES MANDATED IN MORRISSEY, SUPRA, AND SCARPELLI,

  SUPRA, FOR PAROLE AND PROBATION REVOCATION HEARINGS) CONSONANT

  WITH THE UNIQUE INSTITUTIONAL ENVIROMENT AND THEREFORE INVOLVING

  A MORE FLEXIBLE APPROACH REASONABLE ACCOMMODATING THE INTERESTS

OF THE INMATES AND THE NEEDS OF THE INSTITUTION.  PP. 556 - 572. 

     (A) ADVANCE WRITTEN NOTICE OF CHARGES MUST BE GIVEN TO THE

  DISCIPLINARY ACTION INMATE, NO LESS THAN 24 HOURS BEFORE HIS

  APPEARANCE BEFORE THE ADJUSTMENT COMMITTEE.  PP. 563 - 564. 

     (B) THERE MUST BE "A WRITTEN STATEMENT BY THE FACTFINDERS AS
TO

  THE EVIDENCE RELIED ON AND REASONS FOR (THE DISCIPLINARY

  ACTION)."  MORRISSEY V. BREWER, SUPRA, AT 489.  PP. 564 - 565. 

     (C) THE INMATE SHOULD BE ALLOWED TO CALL WITNESES AND PRESENT

  DOCUMENTARY EVIDENCE IN HIS DEFENSE IF PERMITTING HIM TO DO SO

WILL NOT JEOPARDIZE INSTITUTIONAL SAFETY OR CORRECTIONAL GOALS. 

  PP. 566 0 567. 

     (D) THE INMATE HAS NO CONSTITUTIONAL RIGHT TO CONFRONTATION
AND

  CROSS-EXAMINATION IN PRISON DISCIPLINARY PROCEEDINGS, SUCH

  PROCEDURES IN THE CURRENT ENVIRONMENT, WHERE PRISON DISRUPTION

  REMAINS A SERIOUS CONCERN, BEING DISCRETIONARY WITH THE PRISON

  OFFICIALS.  PP. 567 - 569. 

     (E) INMATES HAVE NO RIGHT TO RETAINED OR APPOINTED COUNSEL IN

  SUCH PROCEEDINGS, ALTHOUGH SUBSTITUTE COUNSEL SHOULD BE PROVIDED

  IN CERTAIN CASES.  PP. 569 - 570. 

     (F) ON THE RECORD HERE IT CANNOT BE CONCLUDED THAT THE

  ADJUSTMENT COMMITTEE IS NOT SUFFICIENTLY IMPARIAL TO SATISFY DUE

  PROCESS REQUIREMENTS.  PP. 570 - 571. 

     4.  THE COURT OF APPEALS ERRED IN HOLDING THAT THE DUE PROCESS

  REQUIREMENTS IN PRISON DISCIPLINARY PROCEEDINGS WERE TO BE

  APPLIED RETROACTIVELY BE REQUIRING THE EXPUNGING OF PRISON

  RECORDS OF IMPROPER MISCONDUCT DETERMINATIONS.  MORRISSEY, SUPRA,

  AT 490.  PP. 573 - 574. 

     5.  THE STATE MAY CONSTITUTIONALLY REQUIRE THAT MAIL FROM AN

  ATTORNEY TO A PRISONER BE IDENTIFIED AS SUCH AND THAT HIS NAME

  AND ADDRESS APPEAR ON THE COMMUNICTION; AND --AS A PROTECTION

  AGAINST CONTRABAND--THAT THE AUTHORITIES MAY OPEN SUCH MAIL IN

  THE INMATE'S PRESENCE.  A LAWYER DESIRING TO CORRESPOND WITH A

  PRISONER MAY ALSO BE REQUIRED FIRST TO IDENTIFY HIMSELF AND HIS

  CLIENT TO THE PRISON OFFICIALS TO ENSURE THAT LETTERS MARKED

 "PRIVILEGED"  ARE ACTUALLY FROM MEMBERS OF THE BAR.  OTHER

  RESTRICTIONS ON THE ATTORNEY-PRISONER MAIL PROCEDURE REQUIRED BY

  THE COURTS BELOW ARE DISAPPROVED.  PP. 574-577. 

     6.  THE DISTRICT COURT, AS THE COURT OF APPEALS SUGGESTED, IS

  TO ASSESS THE ADEQUACY OF THE LEGAL ASSISTANCE AVAILABLE FOR

  PREPARATION OF CIVIL RIGHTS ACTIONS, APPLYING THE STANDARD OF

  JOHNSON V. AVERY, SUPRA, AT 490, THAT "UNLESS AND UNTIL THE STATE

  PROVIDES SOME REASONABLE ALTERNATIVE TO ASSIST INMATES IN THE

  PREPARATION OF PETITIONS FOR POST-CONVICTION RELIEF, "INMATES

  COULD NOT BE BARRED FROM FURNISHING ASSISTANCE TO EACH OTHER. 

  PP. 577 - 580. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
MARSHALL, J., FILED AN OPINION DISSENTING IN PART, IN WHICH BRENNAN,
J., JOINED, POST, P. 580.  DOUGLAS, J., FILED AN OPINION DISSENTING IN
PART AND CONCURRING IN THE RESULT IN PART, POST, P. 593. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE PETITION FOR WRIT OF CERTIORARI IN THIS CASE, 414
U.S. 1156 (1974), BECAUSE IT RAISES IMPORTANT QUESTIONS CONCERNING THE
ADMINISTRATION OF A STATE PRISON. 

RESPONDENT, ON BEHALF OF HIMSELF AND OTHER INMATES OF THE NEBRASKA
PENAL AND CORRECTIONAL COMPLEX, LINCOLN, NEBRASKA, FILED A COMPLAINT
UNDER 42 U.S.C. 1983 /1/  CHALLENGING SEVERAL OF THE PRACTICES, RULES,
AND REGULATIONS OF THE COMPLEX.  FOR PRESENT PURPOSES, THE PERTINENT
ALLEGATIONS WERE THAT DISCIPLINARY PROCEEDINGS DID NOT COMPLY WITH THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE FEDERAL
CONSTITUTION; THAT THE INMATE LEGAL ASSISTANCE PROGRAM DID NOT MEET
CONSTITUTIONAL STANDARDS, AND THAT THE REGULATIONS GOVERNING THE
INSPECTION OF MAIL TO AND FROM ATTORNEYS FOR INMATES WERE
UNCONSTITUTIONALLY RESTRICTIVE.  RESPONDENT REQUESTED DAMAGES AND
INJUNCTIVE RELIEF. 

AFTER AN EVIDENTIARY HEARING, THE DISTRICT COURT GRANTED PARTIAL
RELIEF.  342 F. SUPP. 616 (NEB. 1972).  CONSIDERING ITSELF BOUND BY
PRIOR CIRCUIT AUTHORITY, IT REJECTED THE PROCEDURAL DUE PROCESS CLAIM;
BUT IT WENT ON TO HOLD THAT THE PRISON'S POLICY OF INSPECTING ALL
INCOMING AND OUTGOING MAIL TO AND FROM ATTORNEYS VIOLATED PRISONERS'
RIGHTS OF ACCESS TO THE COURTS AND THAT THE RESTRICTIONS PLACED ON
INMATE LEGAL ASSISTANCE WERE NOT CONSTITUTIONALLY DEFECTIVE.  /2/ 

THE COURT OF APPEALS REVERSED, 483 F.2D 1059 (CA8 1973), WITH
RESPECT TO THE DUE PROCESS CLAIM, HOLDING THAT THE PROCEDURAL
REQUIREMENTS OUTLINED BY THIS COURT IN MORRISSEY V. BREWER, 408 U.S.
471 (1972), AND GAGNON V. SCARPELLI, 411 U.S. 778 (1973), DECIDED AFTER
THE DISTRICT COURT'S OPINION IN THIS CASE, SHOULD BE GENERALLY FOLLOWED
IN PRISON DISCIPLINARY HEARINGS BUT LEFT THE SPECIFIC REQUIREMENTS,
INCLUDING THE CIRCUMSTANCES IN WHICH COUNSEL MIGHT BE REQUIRED, TO BE
DETERMINED BY THE DISTRICT COURT ON REMAND.  WITH RESPECT TO A REMEDY,
THE COURT FURTHER HELD THAT PREISER V. RODRIQUEZ, 411 U.S. 475 (1973),
FORBADE THE ACTUAL RESTORATION OF GOOD-TIME CREDTIS IN THIS 1983 SUIT
BUT ORDERED EXPUNGED FROM PRISON RECORDS ANY DETERMINATIONS OF
MISCONDUCT ARRIVED AT IN PROCEEDINGS THAT FAILED TO COMPORT WITH DUE
PROCESS AS DEFINED BY THE COURT.  THE COURT GENERALLY AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT WITH RESPECT TO CORRESPONDENCE WITH
ATTORNEYS, /3/  BUT ORDERED FURTHER PROCEEDINGS TO DETERMINE WHETHER
THE STATE WAS MEETING ITS BURDEN UNDER JOHNSON V. AVERY, 393 U.S. 483
(1969), TO PROVIDE LEGAL ASSISTANCE TO PRISON INMATES, THE COURT
HOLDING THAT THE STATE'S DUTY EXTENDED TO CIVIL RIGHTS CASES AS WELL AS
TO HABEAS CORPUS PROCEEDINGS.  /4/

        I 

WE BEGIN WITH THE DUE PROCESS CLAIM.  AN UNDERSTANDING OF THE ISSUES
INVOLVED REQUIRES A DETAILING OF THE PRISON DISCIPLINARY REGIME SET
DOWN BY NEBRASKA STATUTES AND PRISON REGULATIONS. 

AMENDED, NEB. REV. STAT. 83 - 185 (CUM. SUPP. 1972).  /5/  PROVIDES
THAT THE CHIEF EXECUTIVE OFFICER OF EACH PENAL FACILITY IS RESPONSIBLE
FOR THE DISCIPLINE OF INMATES IN A PARTICULAR INSTITUTION.  THE STATUTE
PROVIDES FOR A RANGE OF POSSIBLE DISCIPLINARY ACTION.  "EXCEPT IN
FLAGRANT OR SERIOUS CASES, PUNISHMENT FOR MISCONDUCT SHALL CONSIST OF
DEPRIVATION OF PRIVLEGES.  IN CASES OF FLAGRANT OR SERIOUS MISCONDUCT,
THE CHIEF EXECUTIVE OFFICER MAY ORDER THAT A PERSON'S REDUCTION OF TERM
AS PROVIDED IN SECTION 83 - 1,107 (GOOD-TIME CREDIT /6/) BE FORFEITED
OR WITHHELD AND ALSO THAT THE PERSON BE CONFINED IN A DISCIPLINARY
CELL."  EACH BREACH OF DISCIPLINE IS TO BE ENTERED IN THE PERSON'S FILE
TOGETHER WITH THE DISPOSITION OR PUNISHMENT THEREFOR. 

AS THE STATUTE MAKES CLEAR, THERE ARE BASICALLY TWO KINDS OF
PUNISHMENT FOR FLAGRANT OR SERIOUS MISCONDUCT.  THE FIRST IS THE
FORFEITURE OR WITHHOLDING OF GOOD-TIME CREDITS, WHICH AFFECTS THE TERM
OF CONFINEMENT, WHILE THE SECOND, CONFINEMENT IN A DISCIPLINARY CELL,
INVOLVES ALTERATION OF THE CONDITIONS OF CONFINEMENT.  IF THE
MISCONDUCT IS LESS THAN FLAGRANT OR SERIOUS, ONLY DEPRIVATION OF
PRIVILEGES RESULTS.  /7/ 

THE ONLY STATUTORY PROVISION ESTABLISHING PROCEDURES FOR THE
IMPOSITION OF DISCIPLINARY SANCTIONS WHICH PERTAINS TO GOOD TIME, 38 OF
THE NEBRASKA TREATMENT AND CORRECTIONS ACT, AS AMENDED, NEB. REV. STAT.
83 - 1,107 (CUM. SUPP. 1972), MERELY REQUIRES THAT AN INMATE BE
"CONSULTED REGARDING THE CHARGES OF MISCONDUCT" IN CONNECTION WITH THE
FORFEITURE, WITHHOLDING, OR RESTORATION OF CREDIT.  BUT PRISON
AUTHORITIES HAVE FRAMED WRITTEN REGULATIONS DEALING WITH PROCEDURES AND
POLICIES FOR CONTROLLING INMATE MISCONDUCT.  /8/  BY REGULATION,
MISCONDUCT IS CLASSIFIED INTO TWO CATEGORIES: MAJOR MISCONDUCT IS A
"SERIOUS VIOLATION" AND MUST BE FORMALLY REPORTED TO AN ADJUSTMENT
COMMITTEE, COMPOSED OF THE ASSOCIATE WARDEN CUSTODY, THE CORRECTIONAL
INDUSTRIES SUPERINTENDENT, AND THE RECEPTION CENTER DIRECTOR.  THIS
COMMITTEE IS DIRECTED TO "REVIEW AND EVALUATE ALL MISCONDUCT REPORTS"
AND, AMONG OTHER THINGS, TO "CONDUCT INVESTIGATIONS, MAKE FINDINGS,
(AND) IMPOSE DISCIPLINARY ACTIONS."  IF ONLY MINOR MISCONDUCT, "A LESS
SERIOUS VIOLATION," IS INVOLVED, THE PROBLEM MAY EITHER BE RESOLVED
INFORMALLY BY THE INMATE'S SUPERVISOR OR IT CAN BE FORMALLY REPORTED
FOR ACTION TO THE ADJUSTMENT COMMITTEE.  REPEATED MINOR MISCONDUCT MUST
BE REPORTED.  THE ADJUSTMENT COMMITTEE HAS AVAILABLE A WIDE RANGE OF
SANCTIONS.  "DISCIPLINARY ACTION TAKEN AND RECOMMENDED MAY INCLUDE BUT
NOT NECESSARILY BE LIMITED TO THE FOLLOWING: REPRIMAND, RESTRICTIONS OF
VARIOUS KINDS, EXTRA DUTY, CONFINEMENT IN THE ADJUSTMENT CENTER (THE
DISCIPLINARY CELL), WITHHOLDING OF STATUTORY GOOD TIME AND/OR EXTRA
EARNED GOOD TIME, OR A COMBINATION OF THE ELEMENTS LISTED HEREIN." 
/9/ 

ADDITIONAL PROCEDURES HAVE BEEN DEVISED BY THE COMPLEX GOVERNING THE
ACTIONS OF THE ADJUSTMENT COMMITTEE.  BASED ON THE TESTIMONY, THE
DISTICT COURT FOUND, 342 F. SUPP., AT 625 - 626, THAT THE FOLLOWING
PROCEDURES WERE IN EFFECT WHEN AN INMATE IS WRITTEN UP OR CHARGED WITH
A PRISON VIOLATION:  /10/ 

     "(A) THE CHIEF CORRECTION SUPERVISOR REVIEWS THE 'WRITE-UPS'
ON

  THE INMATES BY THE OFFICERS OF THE COMPLEX DAILY; 

     "(B) THE CONVICT IS CALLED TO A CONFERENCE WITH THE CHIEF

  CORRECTION SUPERVISOR AND THE CHARGING PARTY; 

     "(C) FOLLOWING THE CONFERENCE, A CONDUCT REPORT IS SENT TO THE
ADJUSTMENT COMMITTEE; 

     "(D) THERE FOLLOWS A HEARING BEFORE THE ADJUSTMENT COMMITTEE

  AND THE REPORT IS READ TO THE INMATE AND DISCUSSED; 

     "(E) IF THE INMATE DENIES CHARGE HE MAY ASK QUESTIONS OF THE
PARTY WRITING HIM UP; 

     "(F) THE ADJUSTMENT COMMITTEE CAN CONDUCT ADDITIONAL
INVESTIGATIONS IF IT DESIRES; 

     "(G) PUNISHMENT IS IMPOSED." 

II 

THIS CLASS ACTION BROUGHT BY RESPONDENT ALLEGED THAT THE RULES,
PRACTICES, AND PROCEDURES AT THE COMPLEX WHICH MIGHT RESULT IN THE
TAKING OF GOOD TIME VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  RESPONDENT SOUGHT THREE TYPES OF RELIEF: (1) RESTORATION OF
GOOD TIME; (2) SUBMISSION OF A PLAN BY THE PRISON AUTHORITIES FOR A
HEARING PROCEDURS IN CONNECTION WITH WITHHOLDING AND FORFEITURE OF GOOD
TIME WHICH COMPLIED WITH THE REQUIREMENTS OF DUE PROCESS; AND (3)
DAMAGES FOR THE DEPRIVATION OF CIVIL RIGHTS RESULTING FROM THE USE OF
THE ALLEGEDLY UNCONSTITUTIONAL PROCEDURES.  /11/ 

AT THE THRESHOLD IS THE ISSUE WHETHER UNDER PREISER V. RODRIQUEZ,
411 U.S. 475 (1973), THE VALIDITY OF THE PROCEDURES FOR DEPRIVING
PRISONERS OF GOOD-TIME CREDITS MAY BE CONSIDERED IN A CIVIL RIGHTS SUIT
BROUGHT UNDER 42 U.S.C. 1983.  IN PREISER, STATE PRISONERS BROUGHT A
1983 SUIT SEEKING AN INJUNCTION TO COMPEL RESTORATION OF GOOD-TIME
CREDITS.  THE COURT HELD THAT BECAUSE THE STATE PRISONERS WERE
CHALLENGING THE VERY FACT OR DURATION OF THEIR SOLE FEDERAL REMEDY WAS
BY WRIT OF HABEAS CORPUS, 411 U.S., AT 500, WITH THE CONCOMITANT
REQUIREMENT OF EXHAUSTING STATE REMEDIES.  BUT THE COURT WAS CAREFUL TO
POINT OUT THAT HABEAS CORPUS IS NOT AN APPROPRIATE OR AVAILABLE REMEDY
FOR DAMAGES CLAIMS, WHICH, IF NOT FRIVOLOUS AND OF SUFFICIENT SUBSTANCE
TO INVOKE THE JURISDICTION OF THE FEDERAL COURT, COULD BE PRESSED UNDER
1983 ALONG WITH SUITS CHALLENGING THE CONDITIONS OF CONFINEMENT RATHER
THAN THE FACT OR LENGTH OF CUSTODY.  411 U.S., AT 494, 498 - 499. 

THE COMPLAINT IN THIS CASE SOUGHT RESTORATION OF GOOD-TIME CREDITS,
AND THE COURT OF APPEALS CORRECTLY HELD THIS RELIEF FORECLOSED UNDER
PREISER.  BUT THE COMPLAINT ALSO SOUGHT DAMAGES; AND PREISER EXPRESSLY
CONTEMPLATED THAT CLAIMS PROPERLY BROUGHT UNDER 1983 COULD GO FORWARD
WHILE ACTUAL RESTORATION OF GOOD-TIME CREDITS IS SOUGHT IN STATE
PROCEEDINGS.  411 U.S., AT 499 N,14.  /12/  RESPONDENT'S DAMAGES CLAIM
WAS THEREFORE PROPERLY BEFORE THE DISTRICT COURT AND REQUIRED
DETERMINATION OF THE VALIDITY OF THE PROCEDURES EMPLOYED FOR IMPOSING
SANCTIONS, INCLUDING LOSS OF GOOD TIME, FOR FLAGRANT OR SERIOUS
MISCONDUCT.  SUCH A DECLARATORY JUDGMENT AS A PREDICATE TO A DAMAGES
AWARD WOULD NOT BE BARRED BY PREISER; AND BECAUSE UNDER THAT CASE, ONLY
AN INJUNCTION RESTORING GOOD TIME IMPROPERLY TAKEN IS FORECLOSED,
NEITHER WOULD IT PRECLUDE A LITIGANT WITH STANDING FROM OBTAINING BY
WAY OF ANCILLARY RELIEF AN OTHERWISE PROPER INJUNCTION ENJOINING THE
PROSPECTIVE ENFORCEMENT OF INVALID PRISON REGULATIONS. 

WE THEREFORE CONCLUDE THAT IT WAS PROPER FOR THE COURT OF APPEALS
AND THE DISTRICT COURT TO DETERMINE THE VALIDITY OF THE PROCEDURES FOR
REVOKING GOOD-TIME CREDITS AND TO FASHION APPROPRIATE REMEDIES FOR ANY
CONSTITUTIONAL VIOLATIONS ASCERTAINED, SHORT OF ORDERING THE ACTUAL
RESTORATION OF GOOD TIME ALREADY CANCELED.  /13/

        III 

PETITIONERS ASSERT THAT THE PROCEDURE FOR DISCIPLINING PRISON
INMATES FOR SERIOUS MISCONDUCT IS A MATTER OF POLICY RAISING NO
CONSTITUTIOANL ISSUE.  IF THE POSITION IMPLIES THAT PRISONERS IN STATE
INSTITUTIONS ARE WHOLLY WITHOUT THE PROTECTIONS OF THE CONSTITUTION AND
THE DUE PROCESS CLAUSE, IT IS PLAINLY UNTENABLE.  LAWFUL IMPRISONMENT
NECESSARILY MAKES UNAVAILABLE MANY RIGHTS AND PRIVILEGES OF THE
ORDINARY CITIZEN, A "RETRACTION JUSTIFIED BY THE CONSIDERATIONS
UNDERLYING OUR PENAL SYSTEM."  PRICE V. JOHNSTON, 334 U.S. 266, 285
(1948).  BUT THOUGH HIS RIGHTS MAY BE DIMINISHED BY THE NEEDS AND
EXIGENCIES OF THE INSTITUTIONAL ENVIRONMENT, A PRISONER IS NOT WHOLLY
STRIPPED OF CONSTITUTIONAL PROTECTIONS WHEN HE IS IMPRISONED FOR
CRIME.  THERE IS NO IRON CURTAIN DRAWN BETWEEN THE CONSTITUTION AND THE
PRISONS OF THIS COUNTRY.  PRISONERS HAVE BEEN HELD TO ENJOY SUBSTANTIAL
RELIGIOUS FREEDOM UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  CRUZ V.
BETO, 405 U.S. 319 (1972); COOPER V. PATE, 378 U.S. 546 (1964).  THEY
RETAIN RIGHT OF ACCESS TO THE COURTS.  YOUNGER V. GILMORE, 404 U.S. 15
(1971), AFF'G GILMORE V. LYNCH, 329 F. SUPP. 105 (ND CAL. 1970);
JOHNSON V. AVERY, 393 U. S. 483 (1969); EX PARTE HULL, 312 U. S. 546
(1941).  PRISONERS ARE PROTECTED UNDER THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMEENDMENT FROM INVIDIOUS DISCRIMINATION BASED ON RACE. 
LEE V. WASHINGTON, 390 U.S. 333 (1968).  PRISONERS MAY ALSO CLAIM THE
PROTECTION OF THE DUE PROCESS CLAUSE.  THEY MAY NOT BE DEPRIVED OF
LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW.  HAINES V.
KERNER, 404 U.S. 519 (1972); WILWORDING V. SWENSON, 404 U.S. 249
(1971); SCREWS V. UNITED STATES, 325 U.S. 91 (1945). 

OF COURSE, AS WE HAVE INDICATED, THE FACT THAT PRISONERS RETAIN
RIGHTS UNDER THE DUE PROCESS CLAUSE IN NO WAY IMPOSED BY THE NATURE OF
THE REGIME TO WHICH THEY HAVE BEEN LAWFULLY COMMITTED.  CF. CSC V.
LETTER CARRIERS, 413 U.S. 548 (1973); BROADRICK V. OKLAHOMA, 413 U.S.
601 (1973); PARKER V. LEVY 417 U.S. 733 (1974).  PRISON DISCIPLINARY
PROCEEDINGS ARE NOT PART OF A CRIMINAL PROSECUTION, AND THE FULL
PANOPLY OF RIGHTS DUE A DEFENDANT IN SUCH PROCEEDINGS DOES NOT APPLY. 
CF. MORRISSEY V. BREWER, 408 U. S., AT 488.  IN SUM, THERE MUST BE
MUTUAL ACCOMMODATION BETWEEN INSTITUTIONAL NEEDS AND AND OBJECTIVES AND
THE PROVISIONS OF THE CONSTITUTION THAT ARE OF GENERAL APPLICATION. 

WE ALSO REJECT THE ASSERTION OF THE STATE THAT WHATEVER MAY BE TRUE
OF THE DUE PROCESS CLAUSE IN GENERAL OR OF OTHER RIGHTS PROTECTED BY
THAT CLAUSE AGAINST STATE INFRINGEMENT, THE INTEREST OF PRISONERS IN
DISCIPLINARY PROCEDURES IS NOT INCLUDED IN THAT LIBERTY" PROTECTED BY
THE FOURTEENTH AMENDMENT.  IT IS TRUE THAT THE CONSTITUTION ITSELF DOES
NOT GURANTEE GOOD-TIME CREDIT FOR SATISFACTORY BEHAVIOR WHILE IN
PRISON.  BUT HERE THE STATE ITSELF HAS NOT ONLY PROVIDED A STATUTORY
RIGHT TO GOOD TIME BUT ALSO SPECIFIES THAT IT IS TO BE FORFEITED ONLY
FOR SERIOUS MISBEHAVIOR.  NEBRASKA MAY HAVE THE AUTHORITY TO CREATE, OR
NOT, A RIGHT TO A SHORTENED PRISON SENTENCE THROUGH THE ACCUMULATION OF
CREDITS OF GOOD BEHAVIOR, AND IT IS TRUE THAT THE DUE PROCESS CLAUSE
DOES NOT REQUIRE A HEARING "IN EVERY CONCEIVABLE CASE OF GOVERNMENT
IMPAIRMENT OF PRIVATE INTEREST."  CAFETERIA WORKERS V. MCELROY, 367
U.S. 886, 894 (1961.  BUT THE STATE HAVING CREATED THE RIGHT TO GOOD
TIME AND ITSELF RECOGNIZING THAT ITS DEPRIVATION IS A SANCTION
AUTHORIZED FOR MAJOR MISCONDUCT, THE PRISONER'S INTEREST HAS REAL
SUBSTANCE AND IS SUFFICIENTLY EMBRACED WITHIN FOURTEENTH AMENDMENT
"LIBERTY" TO ENTITLE HIM TO THOSE MINUMUM PROCEDURES APPROPRIATE UNDER
THE CIRCUMSTANCES AND REQUIRED BY THE DUE PROCESS CLAUSE TO INSURE THAT
THE STATE-CREATED RIGHT IS NOT ARBITRARILY ABROGATED.  THIS IS THE
THRUST OF RECENT CASES IN THE PRISON DISCIPLINARY CONTEXT.  IN HAINES
V. KERNER, SUPRA, THE STATE PRISONER ASSERTED A "DENIAL OF DUE PROCESS
IN THE STEPS LEADING TO DISCIPLINARY CONFINEMENT."  404 U.S., AT 520. 
WE RESERVED THE DISMISSAL OF THE 1983 COMPLAINT FOR FAILURE TO STATE A
CLAIM.  IN PREISER V. RODRIQUEZ, SUPRA, THE PRISONER COMPLAINED THAT HE
HAD BEEN DEPRIVED OF GOOD-TIME CREDITS WITHOUT NOTICE OR HEARING AND
WITHOUT DUE PROCESS OF LAW.  WE CONSIDERED THE CLAIM A PROPER SUBJECT
FOR A FEDERAL HABEAS CORPUS PROCEEDING.     THIS ANALYSIS AS TO LIBERTY
PARALLELS THE ACCEPTED DUE PROCESS ANALYSIS AS TO PROPERTY.  THE COURT
HAS CONSISTENTLY HELD THAT SOME KIND OF HEARING IS REQUIRED AT SOME
TIME BEFORE A PERSON IS FINALLY DEPRIVED OF HIS PROPERTY INTERESTS. 
ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 123, 168 (1951)
(FRANKFURTER, J., CONCURRING).  THE REQUIREMENT FOR SOME KIND OF A
HEARING APPLIES TO THE TAKING OF PRIVATE PROPERTY, GRANNIS V. ORDEAN,
234 U.S. 385 (1914), THE REVOCATION OF LICENSES, IN RE RUFFALO, 390
U.S. 544 (1968), THE OPERATION OF STATE DISPUTE SETTLEMENT MECHANISMS,
WHEN ONE PERSON SEEKS TO TAKE PROPERTY FORM ANOTHER, OR TO GOVERNMENT
CREATED JOBS HELD ABSENT "CAUSE" FOR TERMINATION, BOARD OF REGENTS V.
ROTH, 408 U.S. 564 (1972); ARNETT V. KENNEDY, 416 U.S. 134, 164 (1974)
(POWELL, J., CONCURRING); ID., AT 171 (WHITE J., CONCURRING IN PART AND
DISSENTING IN PART); ID., AT 206 (MARSHALL, J., DISSENTING).  CF.
STANLEY V. ILLINOIS, 405 U.S. 645, 652 - 654 (1972); BELL V. BURSON,
402 U.S. 535 (1971). 

WE THINK A PERSON'S LIBERTY IS EQUALLY PROTECTED, EVEN WHEN THE
LIBERTY ITSELF IS A STATUTORY CREATION OF THE STATE.  THE TOUCHSTONE OF
DUE PROCESS IS PROTECTION OF THE INDIVIDUAL AGAINST ARBITRARY ACTION OF
GOVERNMENT, DENT V. WEST VIRGINIA, 129 U.S. 114, 123 (1889).  SINCE
PRISONERS IN NEBRASKA CAN ONLY LOSE GOOD-TIME CREDITS IF THEY ARE
GUILTY OF SERIOUS MISCONDUCT, THE DETERMINATION OF WHETHER SUCH
BEHAVIOR HAS OCCURED BECOMES CRITICAL, AND THE MINIMUM REQUIREMENTS OF
PROCEDURAL DUE PROCESS APPROPRIATE FOR THE CIRCUMSTANCES MUST BE
OBSERVED. 

        IV 

AS FOUND BY THE DISTRICT COURT, THE PROCEDURES EMPLOYED ARE: (1) A
PRELIMINARY CONFERENCE WITH THE CHIEF CORRECTIONS SUPERVISOR AND THE
CHARGING PARTY, WHERE THE PRISONER IS INFORMED OF THE MISCONDUCT CHARGE
AND ENGAGES IN PRELIMINARY DISCUSSION ON ITS MERITS; (2) THE
PREPARATION OF A CONDUCT REPORT AND A HEARING HELD BEFORE THE
ADJUSTMENT COMMITTEE, THE DISCIPLINARY BODY OF THE PRISON, WHERE THE
REPORT IS READ TO THE INMATE; AND (3) THE OPPORTUNITY AT THE HEARING TO
ASK QUESTIONS OF THE CHARGING PARTY.  THE STATE CONTENDS THAT THE
PROCEDURES ALREADY PROVIDED ARE ADEQUATE.  THE COURT OF APPEALS HELD
THEM INSUFFICIENT AND ORDERED THAT THE DUE PROCESS REQUIREMENTS
OUTLINED IN MORRISSEY AND SCARPELLI BE SATISFIED IN SERIOUS
DISCIPLINARY CASES AT THE PRISON. 

MORRISSEY HELD THAT DUE PROCESS IMPOSED CERTAIN MINIMUM PROCEDURAL
REQUIREMENTS WHICH MUST BE SATISFIED BEFORE PAROLE COULD FINALLY BE
REVOKED.  THESE PROCEDURES WERE: 

"(A) WRITTEN NOTICE OF THE CLAIMED VIOLATIONS OF PAROLE; (B)
DISCLOSURE TO THE PAROLEE OF EVIDENCE AGAINST HIM; (C) OPPORTUNITY TO
BE HEARD IN PERSON AND TO PRESENT WITNESSES AND DOCUMENTARY EVIDENCE;
(D) THE RIGHT TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES (UNLESS
THE HEARING OFFICER SPECIFICALLY FINDS GOOD CAUSE FOR NOT ALLOWING
CONFRONTATION); (E) A 'NEUTRAL AND DETACHED' HEARING BODY SUCH AS A
TRADITIONAL PAROLE BOARD, MEMBERS OF WHICH NEED NOT BE JUDICIAL
OFFICERS OR LAWYERS; AND (F) A WRITTEN STATEMENT BY THE FACTFINDERS AS
TO THE EVIDENCE RELIED ON AND REASONS FOR REVOKING PAROLE."  408 U.S.,
AT 489. 

THE COURT DID NOT REACH THE QUESTION AS TO WHETHER THE PAROLEE IS
ENTITLED TO THE ASSISTANCE OF RETAINED COUNSEL OR TO APPOINTED COUNSEL,
IF HE IS INDIGENT.  FOLLOWING THE DECISION IN MORRISSEY, IN GAGNON V.
SCARPELLI, 411 U.S. 778 (1973), THE COURT HELD THE REQUIREMENTS OF DUE
PROCESS ESTABLISHED FOR PAROLE REVOCATION WERE APPLICABLE TO PROBATION
REVOCATION PROCEEDINGS.  THE COURT ADDED TO THE REQUIRED MINIMUM
PROCEDURES OF MORRISSEY THE RIGHT TO COUNSEL, WHERE A PROBATIONER MAKES
A REQUEST, "BASED ON A TIMELY AND COLORABLE CLAIM (I) THAT HE HAS NOT
COMMITTED THE ALLEGED VIOLATION OF THE CONDITIONS UPON WHICH HE IS AT
LIBERTY; OR (II) THAT, EVEN IF THE VIOLATION IS A MATTER OF PUBLIC
RECORD OR IS UNCONTESTED, THERE ARE SUBSTANTIAL REASONS WHICH JUSTIFIED
OR MITIGATED THE VIOLATION AND MAKE REVOCATION INAPPROPRIATE, AND THAT
THE REASONS ARE COMPLEX OR OTHERWISE DIFFICULT TO DEVELOP OR PRESENT." 
ID., AT 790.  IN DOUBTFUL CASES, THE AGENCY WAS TO CONSIDER WHETHER THE
PROBATIONER APPEARED TO BE CAPABLE OF SPEAKING EFFECTIVELY FOR HIMSELF,
ID., AT 790 - 791, AND A RECORD WAS TO BE MADE OF THE GROUNDS FOR
REFUSING TO APPOINT COUNSEL. 

WE AGREE WITH NEITHER PETITIONERS NOT THE COURT OF APPEALS: THE
NEBRASKA PROCEDURES ARE IN SOME RESPECTS CONSTITUTIONALLY DEFICIENT BUT
THE MORRISSEY-SCARPELLI PROCEDURES NEED NOT IN ALL RESPECTS BE FOLLOWED
IN DISCIPLINARY CASES IN STATE PRISONS. 

WE HAVE OFTEN REPEATED THAT "(THE VERY NATURE OF DUE PROCESS NEGATES
ANY CONCEPT OF INFLEXIBLE PROCEDURES UNIVERSALLY APPLICABLE TO EVERY
IMAGINABLE SITUATION."  CAFETERIA WORKERS V. MCELROY, 367 U.S., AT
895.  "(CONSIDERATION OF WHAT PROCEDURES DUE PROCESS MAY REQUIRE UNDER
ANY GIVEN SET OF CIRCUMSTANCES MUST BEGIN WITH A DETERMINATION OF THE
PRECISE NATURE OF THE GOVERNMENT FUNCTION INVOLVED AS WELL AS OF THE
PRIVATE INTEREST THAT HAS BEEN AFFECTED BY GOVERNMENTAL ACTION." 
IBID.; MORRISSEY, 408 U.S., AT 481.  VIEWED IN THIS LIGHT IT IS
IMMEDIATELY APPARENT THAT ONE CANNOT AUTOMATICALLY APPLY PROCEDURAL
RULES DESIGNED FOR FREE CITIZENS IN AN OPEN SOCIETY, OR FOR PAROLEES OR
PROBATIONERS UNDER ONLY LIMITED RESTRAINTS, TO THE VERY DIFFERENT
SITUATION PRESENTED BY A DISCIPLINARY PROCEEDING IN A STATE PRISON. 

REVOCATION OF PAROLE MAY DEPRIVE THE PAROLEE OF ONLY CONDITIONAL
LIBERTY, BUT IT NEVERTHELESS "INFLICTS A 'GRIEVOUS LOSS' ON THE PAROLEE
AND OFTEN ON OTHERS."  ID., AT 482.  SIMPLY PUT, REVOCATION PROCEEDINGS
DETERMINE WHETHER THE PAROLEE WILL BE FREE OR IN PRISON, A MATTER OF
OBVIOUS GREAT MOMENT TO HIM.  FOR THE PRISON INMATE, THE DEPRIVATION OF
GOOD TIME IS NOT THE SAME IMMEDIATE DISASTER THAT THE REVOCATION OF
PAROLE IS FOR THE PAROLEE.  THE DEPRIVATION, VERY LIKELY, DOES NOT THEN
AND THERE WORK ANY CHANGE IN THE CONDITIONS OF HIS LIBERTY.  IT CAN
POSTPONE THE DATE OF ELIGIBILITY FOR PAROLE AND EXTEND THE MAXIMUM TERM
TO BE SERVED, BUT IT IS NOT CERTAIN TO DO SO, FOR GOOD TIME MAY BE
RESTORED.  EVEN IF NOT RESTORED, IT CANNOT BE SAID WITH CERTAINITY THAT
THE ACTUAL DATE OF PAROLE WILL BE AFFECTED; AND IF PAROLE OCCURS, THE
EXTENTION OF THE MAXIMUM TERM RESULTING FROM LOSS OF GOOD TIME MAY
AFFECT ONLY THE TERMINATION OF PAROLE, AND IT MAY NOT EVEN DO THAT. 
THE DEPRIVATION OF GOOD TIME IS UNQUESTIONABLY A MATTER OF CONSIDERABLE
IMPORTANCE.  THE STATE RESERVES IT AS A SANCTION FOR SERIOUS
MISCONDUCT, AND WE SHOULD NOT UNREALISTICALLY DISCOUNT ITS
SIGNIFICANCE.  BUT IT IS QUALITATIVELY AND QUANTITATIVELY DIFFERENT
FROM THE REVOCATION OF PAROLE OR PROBATION. 

IN STRIKING THE BALANCE THAT THE DUE PROCESS CLAUSE DEMANDS,
HOWEVER, WE THINK THE MAJOR CONSIDERATION MILITATING AGAINST ADOPTING
THE FULL RANGE OF PROCEDURES SUGGESTED BY MORRISSEY FOR ALLEGED PAROLE
VIOLATORS IS THE VERY DIFFERENT STAKE THE STATE HAS IN THE STRUCTURE
AND CONTENT OF THE PRISON DISCIPLINARY HEARING.  THAT THE REVOCATION OF
PAROLE BE JUSTIFIED AND BASED ON AN ACCURATE ASSESSMENT OF THE FACTS IS
A CRITICAL MATTER TO THE STATE AS WELL AS THE PAROLEE; BUT THE
PROCEDURES BY WHICH IT IS DETERMINED WHETHER THE CONDITIONS OF PAROLE
HAVE BEEN BREACHED DO NOT THEMSELVES THREATEN OTHER IMPORTANT STATE
INTERESTS, PAROLE OFFICERS, THE POLICE, OR WITNESSES--AT LEAST NO MORE
SO THAN IN THE CASE OF THE ORDINARY CRIMINAL TRIAL.  PRISON
DISCIPLINARY PROCEEDINGS, ON THE OTHER HAND, TAKE PLACE IN A CLOSED,
TIGHTLY CONTROLLED ENVIRONMENT PEOPLED BY THOSE WHO HAVE CHOSEN TO
VIOLATE THE CRIMINAL LAW AND WHO HAVE BEEN LAWFULLY INCARCERATED FOR
DOING SO.  SOME ARE FIRST OFFENDERS, BUT MANY ARE RECIDIVISTS WHO HAVE
REPEATEDLY EMPLOYED ILLEGAL AND OFTEN VERY VIOLENT MEANS TO ATTAIN
THEIR ENDS.  THEY MAY HAVE LITTLE REGARD FOR THE SAFETY OF OTHERS OR
THEIR PROPERTY OR FOR THE RULES DESIGNED TO PROVIDE AN ORDERLY AND
REASONABLY SAFE PRISON LIFE.  ALTHOUGH THERE ARE VERY MANY VARIETIES OF
PRISONS WITH DIFFERENT DEGREES OF SECURITY, WE MUST REALIZE THAT IN
MANY OF THEM THE INMATES ARE CLOSELY SUPERVISED AND THEIR ACTIVITIES
CONTROLLED AROUND THE CLOCK.  GUARDS AND INMATES CO-EXIST IN DIRECT AND
INTIMATE CONTACT.  TENSION BETWEEN THEM IS UNREMITTING.  FRUSTRATION,
RESENTMENT, AND DESPAIR ARE COMMONPLACE.  RELATIONSHIPS AMONG THE
INMATES ARE VARIED AND COMPLEX AND PERHAPS SUBJECT TO THE UNWRITTEN
CODE THAT EXHORTS INMATES NOT TO INFORM ON A FELLOW PRISONER. 

IT IS AGAINST THIS BACKGROUND THAT DISCIPLINARY PROCEEDINGS MUST BE
STRUCTURED BY PRISON AUTHORITIES; AND IT IS AGAINST TIS BACKGROUND THAT
WE MUST MAKE OUR CONSTITUTIONAL JUDGMENTS, REALIZING THAT WE ARE
DEALING WIHT THE MAXIMUM SECURITY INSTITUTION AS WELL AS THOSE WHERE
SECURITY CONSIDERATIONS ARE NOT SO PARAMOUNT.  THE REALITY IS THAT
DISCIPLINARY HEARINGS AND THE IMPOSITION OF DISAGREEABLE SANCTIONS
NECESSARILY INVOLVE CONFRONTATIONS BETWEEN INMATES AND AUTHORITY AND
BETWEEN INMATES WHO ARE BEING DISCIPLINED AND THOSE WHO WOULD CHARGE OR
FURNISH EVIDENCE AGAINST THEM.  RETALIATION IS MUCH MORE THAN A
THEORETICAL POSSIBILITY; AND THE BASIC AND UNAVOIDABLE TASK OF
PROVIDING REASONABLE PERSONAL SAFETY FOR GUARDS AND INMATES MAY BE AT
STAKE, TO SAY NOTHING OF THE IMPACT OF DISCIPLINARY CONFRONTATIONS AND
THE RESULTING ESCALATION OF PERSONAL ANTAGONISMS ON THE IMPORTANT AIMS
OF THE CORRECTIONAL PROCESS. 

INDEED, IT IS PRESSED UPON US THAT THE PROCEEDINGS TO ASSERTAIN AND
SANCTION MISCONDUCT THEMSELVES PLAY A MAJOR ROLE IN FURTHERING THE
INSTITUTIONAL GOAL OF MODIFYING THE BEHAVIOR AND VALUE SYSTEMS OF
PRISON INMATES SUFFICIENTLY TO PERMIT THEM TO LIVE WITHIN THE LAW WHEN
THEY ARE RELEASED.  INEVITABLY THERE IS A GREAT RANGE OF PERSONALITY
AND CHARACTER AMONG THOSE WHO HAVE TRANSGRESSED THE CRIMINAL LAW.  SOME
ARE MORE AMENABLE TO SUGGESTION AND PERSUASION THAN OTHERS.  SOME MAY
BE INCORRIGIBLE AND WOULD MERLY DISRUPT AND EXPLOIT THE DISCIPLINARY
PROCESS FOR THEIR OWN ENDS.  WITH SOME, REHABILITAION MAY BE BEST
ACHIEVED BY SIMULATING PROCEDURES OF A FREE SOCIETY TO THE MAXIMUM
POSSIBLE EXTENT; BUT WITH OTHERS, IT MAY BE ESSENTIAL THAT DISCIPLINE
BE SWIFT AND SURE.  /14/  IN ANY EVENT, IT IS ARGUED, THERE WOULD BE
GREAT UNWISDOM IN ENCASING THE DISCIPLINARY PROCEDURES IN AN INFLEXIBLE
CONSTITUTIONAL STRAITJACKET THAT WOULD NECESSARILY CALL FOR ADVERSARY
PROCEEDINGS TYPICAL OF THE CRIMINAL TRIAL, VERY LIKELY RAISE THE LEVEL
OF CONFRONTATION BETWEEN STAFF AND INMATE, AND MAKE MORE DIFFICULT THE
UTILIZATION OF THE DISCIPLINARY PROCESS AS A TOOL TO ADVANCE THE
REHABILITATIVE GOALS OF THE INSTITUTION.  THIS CONSIDERATION, ALONG
WITH THE NECESSITY TO MAINTAIN AN ACCEPTABLE LEVEL OF PERSONAL SECURITY
IN THE INSTITUTION, MUST BE TAKEN INTO ACCOUNT AS WE NOW EXAMINE IN
MORE DETAIL THE NEBRASKA PROCEDURES THAT THE COURT OF APPEALS FOUND
WANTING. 

        V 

TWO OF THE PROCEDURES THAT THE COURT HELD SHOULD BE EXTENDED TO
PAROLEES FACING REVOCATION PROCEEDINGS ARE NOT, BUT MUST BE, PROVIDED
TO PRISONERS IN THE NEBRASKA COMPLEX IF THE MINIMUM REQUIREMENTS OF
PROCEDURAL DUE PROCESS ARE TO BE SATISFIED.  THESE ARE ADVANCE WRITTEN
NOTICE OF THE CLAIMED VIOLATION AND A WRITTEN STATEMENT OF THE
FACTFINDINGS AS TO THE EVIDENCE RELIED UPON AND THE REASONS FOR THE
DISCIPLINARY ACTION TAKEN.  AS DESCRIBED BY THE WARDEN IN HIS ORAL
TESTIMONY, ON THE BASIS OF WHICH THE DISTRICT COURT MADE ITS FINDINGS,
THE INMATE IS NOW GIVEN ORAL NOTICE OF THE CHARGES AGAINST HIM AT LEAST
AS SOON AS THE CONFERENCE WITH THE CHIEF CORRECTION OFFICER AND
CHARGING PARTY.  A WRITTEN RECORD IS THERE COMPLIED AND THE REPORT READ
TO THE INMATE AT THE HEARING BEFORE THE ADJUSTMENT COMMITTEE WHERE THE
CHARGES ARE DISCUSSED AND PURSUED.  THERE IS NO INDICATION THAT THE
INMATE IS EVER GIVEN A WRITTEN STATEMENT BY THE COMMITTEE AS TO THE
EVIDENCE OR INFORMED IN WRITING OR OTHERWISE AS TO THE REASONS FOR THE
DISCIPLINARY ACTION TAKEN. 

PART OF THE FUNCTION OF NOTICE IS TO GIVE THE CHARGED PARTY A CHANCE
TO MARSHALL THE FACTS IN HIS DEFENSE AND TO CLARIFY WHAT THE CHARGES
ARE, IN FACT.  SEE IN RE GAULT, 387 U.S. 1, 33 - 34, AND N.54 (1967). 
NEITHER OF THESE FUNCTIONS WAS PERFORMED BY THE NOTICE DESCRIBED BY THE
WARDEN.  ALTHOUGH THE CHARGES ARE DISCUSSED ORALLY WITH THE INMATE
SOMEWHAT IN ADVANCE OF THE HEARING, THE INMATE IS SOMETIMES BROUGHT
BEFORE THE ADJUSTMENT COMMITTEE SHORTLY AFTER THIS INITIAL DISCUSSION,
FURTHER INVESTIGATION TAKES PLACE WHICH MAY RESHAPE THE NATURE OF THE
CHARGES OR THE EVIDENCE RELIED UPON.  IN THOSE INSTANCES, UNDER
PROCEDURES IN EFFECT AT THE TIME OF TRIAL, IT WOULD APPEAR THAT THE
INMATE FIRST RECEIVES NOTICE OF THE ACTUAL CHARGES AT THE TIME OF THE
HEARING BEFORE THE ADJUSTMENT COMMITTEE.  WE HOLD THAT WRITTEN NOTICE
OF THE CHARGES MUST BE GIVEN TO THE DISCIPLINARY-ACTION DEFENDANT IN
ORDER TO INFORM HIM OF THE CHARGES AND TO ENABLE HIM TO MARSHALL THE
FACTS AND PREPARE A DEFENSE.  AT LEAST A BRIEF PERIOD OF TIME AFTER THE
NOTICE, NO LESS THAN 24 HOURS, SHOULD BE ALLOWED TO THE INMATE TO
PREPARE FOR THE APPEARANCE BEFORE THE ADJUSTMENT COMMITTEE.     WE ALSO
HOLD THAT THERE MUST BE A "WRITTEN STATEMENT BY THE FACTFINDERS AS TO
THE EVIDENCE RELIED ON AND REASONS":  FOR THE DISCIPLINARY ACTION. 
MORRISSEY, 408 U.S., AT 489.  ALTHOUGH NEBRASKA DOES NOT SEEM TO
PROVIDE ADMINISTRATIVE REVIEW OF THE ACTION TAKEN BY THE ADJUSTMENT
COMMITTEE, THE ACTIONS TAKEN AT SUCH PROCEEDINGS MAY INVOLVE REVIEW BY
OTHER BODIES.  THEY MIGHT FURNISH THE BASIS OF A DECISION BY THE
DIRECTOR OF CORRECTIONS TO TRANSFER AN INMATE TO ANOTHER INSTITUTION
BECAUSE HE IS CONSIDERED "TO BE INCORRIGIBLE, BY REASON OF FREQUENT
INTENTIONAL BREACHES OF DISCIPLINE," NEB. REV. STAT. 83 0 185 (4) (CUM.
SUPP. 1972), AND ARE CERTAINLY LIKELY TO BE CONSIDERED BY THE STATE
PAROLE AUTHORITIES IN MAKING PAROLE DECISIONS.  /15/  WRITTEN RECORDS
OF PROCEEDINGS WILL THUS PROTECT THE INMATE AGAINST COLLATERAL
CONSEQUENCES BASED ON A MISUNDERSTANDING OF THE NATURE OF THE ORIGINAL
PROCEEDING.  FURTHER, AS TO THE DISCIPLINARY ACTION ITSELF, THE
PROVISION FOR A WRITTEN RECORD HELPS TO INSURE THAT ADMINISTRATORS,
FACED WITH POSSIBLE SCRUTINY BY STATE OFFICIALS AND THE PUBLIC, AND
PERHAPS EVEN THE COURTS, WHERE FUNDAMENTAL CONSTITUTIONAL RIGHTS MAY
HAVE BEEN ABRIDGED, WILL ACT FAIRLY.  WITHOUT WRITTEN RECORDS, THE
INMATE WILL BE AT A SEVERE DISADVANTAGE IN PROPOUNDING HIS OWN CAUSE TO
OR DEFENDING HIMSELF FROM OTHERS.  IT MAY BE THAT THERE WILL BE
OCCASIONS WHEN PERSONAL OR INSTITUTIONAL SAFETY ARE SO IMPLICATED, THAT
THE STATEMENT MAY PROPERLY EXCLUDE CERTAIN ITEMS OF EVIDENCE, BUT IN
THAT EVENT THE STATEMENT SHOULS INDICATE THE FACT OF THE OMISSION. 
OTHERWISE, WE PERCEIVE NO CONCEIBLE REHABILITATIVE OBJECTIVE OR
PROSPECT OF PRISON DISRUPTION THAT CAN FLOW FROM THE REQUIREMENT OF
THESE STATEMENTS.  /16/ 

WE ARE ALSO OF THE OPINION THAT THE INMATE FACING DISCIPLINARY
PROCEEDINGS SHOULD BE ALLOWED TO CALL WITNESSES AND PRESENT DOCUMENTARY
EVIDENCE IN HIS DEFENSE WHEN PERMITTING HIM TO DO SO WILL NOT BE UNDULY
HAZARDOUS TO INSTITUTIONAL SAFETY OR CORRECTIONAL GOALS.  ORDINARILY,
THE RIGHT TO PRESENT EVIDENCE IS BASIC TO A FAIR HEARING; BUT THE
UNRESTRICTED RIGHT TO CALL WITNESSES FROM THE PRISON POPULATION CARRIES
OBVIOUS POTENTIAL FOR DISRUPTION AND FOR INTERFERENCE WITH THE SWIFT
PUNISHMENT THAT IN INDIVIDUAL CASES MAY BE ESSENTIAL TO CARRYING OUT
THE CORRECTIONAL PROGRAM OF THE INSTITUTION.  WE SHOULD NOT BE TOO
READY TO EXERCISE OVERSIGHT AND PUT ASIDE THE JUDGMENT OF PRISON
ADMINISTRATORS.  IT MAY BE THAT AN INDIVIDUAL THREATENED WITH SERIOUS
SANCTIONS WOULD NORMALLY BE ENTITLED TO PRESENT WITNESSES AND RELEVANT
DOCUMENTARY EVIDENCE; BUT HERE WE MUST BALANCE THE INMATE'S INTEREST IN
AVOIDING LOSS OF GOOD TIME AGAINST THE NEEDS OF THE PRISON, AND SOME
AMOUNT OF FLEXIBILITY AND ACCOMMODATION IS REQUIRED.  PRISON OFFICIALS
MUST HAVE THE NECESSARY DISCRETION TO KEEP THE HEARING WITHIN
REASONABLE LIMITS AND TO REFUSE TO CALL WITNESSES THAT MAY CREATE A
RISK OF REPRISAL OR UNDERMINE AUTHORITY, AS WELL AS TO LIMIT ACCESS TO
OTHER INMATES TO COLLECT STATEMENTS OR TO COMPILE OTHER DOCUMENTARY
EVIDENCE.  ALTHOUGH WE DO NOT PRESCRIBE IT, IT WOULD BE USEFUL FOR THE
COMMITTEE TO STATE ITS REASON FOR REFUSING TO CALL A WITNESS, WHETHER
IT BE FOR IRRELEVANCE, LACK OF NECESSITY, OR THE HAZARDS PRESENTED IN
INDIVIDUAL CASES.  THE OPERATION OF A CORRECTIONAL INSTITUTION IS AT
BEST AN EXTRAORDINARILY DIFFICULT UNDERTAKING.  MANY PRISON OFFICIALS,
ON THE SPOT AND WITH THE RESPONSIBILITY FOR THE SAFETY OF INMATES AND
STAFF, ARE RELUCTANT TO EXTEND THE UNQUALIFIED RIGHT TO CALL WITNESSES;
AND IN OUR VIEW, THEY MUST HAVE THE NECESSARY DISCRETION WITHOUT BEING
SUBJECT TO UNDULY CRIPPLING CONSTITUTIONAL IMPEDIMENTS.  THERE IS THIS
MUCH PLAY IN THE JOINTS OF THE DUE PROCESS CLAUSE, AND WE STOP SHORT OF
IMPOSING A MORE DEMANDING RULE WITH RESPECT TO WITNESSES AND
DOCUMENTS. 

CONFRONTATION AND CROSS-EXAMINATION PRESENT GREATER HAZARDS TO
INSTITUTIONAL INTEREST.  /17/  IF CONFRONTATION AND CROSS-EXAMINATION
OF THOSE FURNISHING EVIDENCE AGAINST THE INMATE WERE TO BE ALLOWED AS A
MATTER OF COURSE, AS IN CRIMINAL TRIALS, THERE WOULD BE CONSIDERABLE
POTENTIAL FOR HAVOC INSIDE THE PRISON WALLS.  PROCEEDINGS WOULD
INEVITABLY BE LONGER AND TEND TO UNMANAGEABILITY.  THESE PROCEDURES ARE
ESSENTIAL IN CRIMINAL TRIALS WHERE THE ACCUSED, IF FOUND GUILTY, MAY BE
SUBJECTED TO THE MOST SERIOUS DEPRIVATIONS, POINTER V. TEXAS, 380 U.S.
400 (1965), OR WHERE A PERSON MAY LOSE HIS JOB IN SOCIETY, GREENE V.
MCELROY, 360 U.S. 474, 496 - 497 (1959).  BUT THEY ARE NOT RIGHTS
UNIVERSALLY APPLICABLE TO ALL HEARINGS.  SEE ARNETT V. KENNEDY, 416
U.S. 134 (1974).  RULES OF PROCEDURES MAY BE SHAPED BY CONSIDERATION OF
THE RISKS OF ERROR, IN RE WINSHIP, 397 U.S. 358, 368 (1970) HARLAN, J.,
CONCURRING; ARNETT V. KENNEDY, SUPRA, P. 171 (WHITE, J., CONCURRING IN
PART AND DISSENTING IN PART), AND SHOULD ALSO BE SHAPED BY THE
CONSEQUENCES WHICH WILL FOLLOW THEIR ADOPTION.  ALTHOUGH SOME STATES DO
SEEM TO ALLOW CROSS-EXAMINATION IN DISCIPLINARY HEARINGS, /18/  WE ARE
NOT APPRISED OF THE CONDITIONS UNDER WHICH THE PROCEDURE MAY BE
CURTAILED; AND IT DOES NOT APPEAR THAT CONFRONTATION AND CROSS
EXAMINATION ARE GENERALLY REQUIRED IN THIS CONTEXT.  WE THINK THAT THE
CONSTITUTION SHOULD NOT BE READ TO IMPOSE THE PROCEDURE AT THE PRESENT
TIME AND THAT ADEQUATE BASES FOR DECISION IN PRISON DISCIPLINARY CASES
CAN BE ARRIVED AT WITHOUT CROSS-EXAMINATION. 

PERHAPS AS THE PROBLEMS OF PENAL INSTITUTIONS CHANGE AND
CORRECTIONAL GOALS ARE RESHAPED, THE BALANCE OF INTERESTS INVOLVED WILL
REQUIRE OTHERWISE.  BUT IN THE CURRENT ENVIRONMENT, WHERE PRISON
DISRUPTION REMAINS A SERIOUS CONCERN TO ADMINISTRATORS, WE CANNOT
IGNORE THE DESIRE AND EFFORT OF MANY STATES, INCLUDING NEBRASKA, AND
THE FEDERAL GOVERNMENT, TO AVOID SITUATIONS THAT MAY TRIGGER DEEP
EMOTIONS AND THAT MAY SCUTTLE THE DISCIPLINARY PROCESS AS A
REHABILITATION VEHICLE.  TO SOME EXTENT, THE AMERICAN ADVERSARY TRIAL
PRESUMES CONTESTANTS WHO ARE ABLE TO COPE WITH THE PRESSURES AND
AFTERMATH OF THE BATTLE, AND SUCH MAY NOT GENERALLY BE THE CASE OF
THOSE IN THE PRISONS OF THIS COUNTRY.  AT LEAST, THE CONSTITUTION, AS
WE INTERPRET IT TODAY, DOES NOT REQUIRE THE CONTRARY ASSUMPTION. 
WITHIN THE LIMITS SET FORTH IN THIS OPINION WE ARE CONTENT FOR NOW TO
LEAVE THE CONTINUING DEVELOPMENT OF MEASURES TO REVIEW ADVERSE ACTIONS
AFFECTING INMATES TO THE SOUND DISCRETION OF CORRECTIONS OFFICIALS
ADMINISTERING THE SCOPE OF SUCH INQUIRES. 

WE RECOGNIZED THAT THE PROBLEMS OF POTENTIAL DISRUPTION MAY DIFFER
DEPENDING ON WHOM THE INMATE PROPOSES TO CROSS-EXAMINE.  IF HE PROPOSES
TO EXAMINE AN UNKNOWN FELLOW INMATE, THE DANGER MAY BE THE GREATEST,
SINCE THE DISCLOSURE OF THE IDENTITY OF THE ACCUSER, AND THE CROSS
EXAMINATION WHICH WILL FOLLOW, MAY POSE A HIGH RISK OF REPRISAL WITHIN
THE INSTITUTION.  CONVERSELY, THE INMATE ACCUSER, WHO MIGHT FREELY TELL
HIS STORY PRIVATELY TO PRISON OFFICIALS, MAY REFUSE TO TESTIFY OR ADMIT
ANY KNOWLEDGE OF THE SITUATION IN QUESTION.  ALTHOUGH THE DANGERS POSED
BY CROSS-EXAMINATION OF KNOWN INMATE ACCUSERS, OR GUARDS, MAY BE LESS,
THE RESENTMENT WHICH MAY PERSIST AFTER CONFRONTATION MAY STILL BE
SUBSTANTIAL.  ALSO, EVEN WHERE THE ACCUSER OR ADVERSE WITNESS IS KNOWN,
THE DISCLOSURE OF THIRD PARTIES MAY POSE A PROBLEM.  THERE MAY BE A
CLASS OF CASES WHERE THE FACTS ARE CLOSELY DISPUTED, AND THE CHARACTER
OF THE PARTIES MINIMIZES THE DANGERS INVOLVED.  HOWEVER, ANY
CONSTITUTIONAL RULE TAILORED TO MEET THESE SITUATIONS WOULD UNDOUBTEDLY
PRODUCE GREAT LITIGATIONS AND ATTENDANT COSTS IN MUCH WIDER RANGE OF
CASES.  FURTHER, IN THE LAST ANALYSIS, EVEN WITHIN THE NARROW RANGE OF
CASES WHERE INTEREST BALANCING MAY WELL DICTATE CROSS-EXAMINATION,
COURTS WILL BE FACED WITH THE ASSESSMENT OF PRISON OFFICIALS AS TO THE
DANGERS INVOLVED, AND THERE WOULD BE A LIMITED BASIS FOR UPSETTING SUCH
JUDGMENTS.  THE BETTER COURSE AT THIS TIME, IN A PERIOD WHERE PRISONS
PRACTICES ARE DIVERSE AND SOMEWHAT EXPERMIENTAL, IS TO LEAVE THESE
MATTERS TO THE SOUND DISCRETION OF THE OFFICIALS OF STATE PRISONS. 

AS TO THE RIGHT TO COUNSEL, THE PROBLEM AS OUTLINED IN SCARPELLI
WITH RESPECT TO PAROLE AND PROBATION REVOCATION PROCEEDINGS IS EVEN
MORE PERTINENT HERE: 

     "THE INTRODUCTION OF COUNSEL INTO A REVOCATION PROCEEDING WILL

  ALTER SIGNIFICANTLY THE NATURE OF THE PROCEEDING.  IF COUNSEL IS

  PROVIDED FOR THE PROBATIONER OR PAROLEE, THE STATE IN TURN WILL

  NORMALLY PROVIDE ITS OWN COUNSEL; LAWYERS, BY TRAINING AND

  DISPOSTITION, ARE ADVOCATES AND BOUND BY PROFESSIONAL DUTY TO

  PRESENT ALL AVAILABLE EVIDENCE AND ARGUMENTS IN SUPPORT OF THEIR

CLIENTS' POSITIONS AND TO CONTEST WITH VIGOR ALL ADVERSE EVIDENCE

  AND VIEWS.  THE ROLE OF THE HEARING BODY ITSELF, APTLY DESCRIBED

  IN MORRISSEY AS BEING 'PREDICTIVE AND DISCRETIONARY' AS WELL AS

  FACTFINDING, MAY BECOME MORE AKIN TO THAT OF A JUDGE AT A TRIAL,

  AND LESS ATTUNED TO THE REHABILITATIVE NEEDS OF THE INDIVIDUAL

  PROBATIONER OR PAROLEE.  IN THE GREATER SELF-CONSCIOUSNESS OF ITS

  QUASI-JUDICIAL ROLE, THE HEARING BODY MAY BE LESS TOLERANT OF

  MARGINAL DEVIANT BEHAVIOR AND FEEL MORE PRESSURE TO REINCARCERATE

  THAN TO CONTINUE NONPUNITIVE REHABILITATION.  CERTAINLY, THE

  DECISIONMAKING PROCESS WILL BE PROLONGED, AND THE FINANCIAL COST

  TO THE STATE--FOR APPOINTED COUNSEL, COUNSEL FOR THE STATE, A

  LONGER RECORD, AND THE POSSIBILITY OF JUDICIAL REVIEW--WILL NOT

  BE INSUBSTANTIAL."  411 U.S., AT 787 - 788 (FOOTNOTE OMITTED). 

THE INSERTION OF COUNSEL INTO THE DISCIPLINARY PROCESS WOULD
INEVITABLY GIVE THE PROCEEDINGS A MORE ADVERSARY CAST AND TEND TO
REDUCE THEIR UTILITY AS A MEANS TO FURTHER CORRECTIONAL GOALS.  THERE
WOULD ALSO BE DELAY AND VERY PRACTICAL PROBLEMS IN PROVIDING COUNSEL IN
SUFFICIENT NUMBERS AT THE TIME AND PLACE WHERE HEARINGS ARE TO BE
HELD.  AT THIS STAGE OF THE DEVELOPMENT OF THESE PROCEDURES WE ARE NOT
PREPARED TO HOLD THAT INMATES HAVE A RIGHT TO EITHER RETAINED OR
APPOINTED COUNSEL IN DISCIPLINARY PROCEEDINGS. 

WHERE AN ILLITERATE INMATE IS INVOLVED, HOWEVER, OR WHERE THE
COMPLEXITY OF THE ISSUE MAKES IT UNLIKLEY THAT THE INMATE WILL BE ABLE
TO COLLECT AND PRESENT THE EVIDENCE NECESSARY FOR AN ADEQUATE
COMPREHENSION OF THE CASE, HE SHOULD BE FREE TO SEEK THE AID OF A
FELLOW INMATE, OR IF THAT IS FORBIDDEN, TO HAVE ADEQUATE SUBSTITUTE AID
IN THE FORM OF HELP FROM THE STAFF OR FROM A SUFFICIENTLY COMPETENT
INMATE DESIGNATED BY THE STAFF.  WE NEED NOT PURSUE THE MATTER FURTHER
HERE, HOWEVER, FOR THERE IS NO CLAIM THAT RESPONDENT, MCDONNELL, IS
WITHIN THE CLASS OF INMATES ENTITLED TO ADVICE OR HELP FROM OTHERS IN
THE COURSE OF A PRISON DISCIPLINARY HEARING. 

FINALLY, WE DECLINE TO RULE THAT THE ADJUSTMENT COMMITTEE WHICH
CONDUCTS THE REQUIRED HEARINGS AT THE NEBRASKA PRISON COMPLEX AND
DETERMINES WHETHER TO REVOKE GOOD TIME IS NOT SUFFICIENTLY IMPARTIAL TO
SATISFY THE DUE PROCESS CLAUSE.  THE COMMITTEE IS MADE UP OF THE
ASSOCIATE WARDEN CUSTODY AS CHAIRMAN, THE CORRECTIONAL INDUSTRIES
SUPERINTENDENT, AND THE RECEPTION CENTER DIRECTOR.  THE CHIEF
CORRECTIONS OFFICER REFERS CASES TO THE COMMITTEE AFTER INVESTIGATION
AND AN INITIAL INTERVIEW WITH THE INMATE INVOLVED.  THE COMMITTEE IS
NOT LEFT AT LARGE WITH UNLIMITED DISCRETION.  IT IS DIRECTED TO MEET
DAILY AND TO OPERATE WITHIN THE PRINCIPLES STATED IN THE CONTROLLING
REGULATIONS, AMONG WHICH IS THE COMMAND THAT "(FULL CONSIDERATION MUST
BE GIVEN TO THE CAUSES FOR THE ADVERSE BEHAVIOR, THE SETTING AND
CIRCUMSTANCES IN WHICH IT OCCURRED, THE MAN'S ACCOUNTABILITY, AND THE
CORRECTIONAL TREATMENT GOALS," AS WELL AS THE DIRECTION THAT
"DISCIPLINARY MEASURES WILL BE TAKEN ONLY AT SUCH TIMES AND TO SUCH
DEGREES AS ARE NECESSARY TO REGULATE AND CONTROL A MAN'S BEHAVIOR
WITHIN ACCEPTABLE LIMITS AND WILL NEVER BE RENDERED CAPRICIOUSLY OR IN
THE NATURE OF RETALIATION OR REVENGE."  WE FIND NO WARRANT IN THE
RECORD PRESENTED HERE FOR CONCLUDING THAT THE ADJUSTMENT COMMITTEE
PRESENTS SUCH A HAZARD OF ARBITRARY DECISIONMAKING THAT IT SHOULD BE
HELD VIOLATIVE OF DUE PROCESS OF LAW. 

OUR CONCLUSION THAT SOME, BUT NOT ALL, OF THE PROCEDURES SPECIFIED
IN MORRISSEY AND SCARPELLI MUST ACCOMPANY THE DEPRIVATION OF GOOD TIME
BY STATE PRISON AUTHORITIES /19/  IS NOT GRAVEN IN STONE.  AS THE
NATURE OF THE PRISON DISCIPLINARY PROCESS CHANGES IN FUTURE YEARS,
CIRCUMSTANCES MAY THEN EXIST WHICH WILL REQUIRE FURTHER CONSIDERATION
AND REFLECTION OF THIS COURT.  IT IS OUR VIEW, HOWEVER, THAT THE
PROCEDURES WE HAVE NOW REQUIRED IN PRISON DISCIPLINARY PROCEEDINGS
REPRESENT A REASONABLE ACCOMMODATION BETWEEN TH INTERESTS OF THE
INMATES AND THE NEEDS OF THE INSTITUTION.  /20/

THE COURT OF APPEALS HELD THAT THE DUE PROCESS REQUIREMENTS IN
PRISON DISCIPLINARY PROCEEDINGS WERE TO APPLY RETROACTIVELY SO AS TO
REQUIRE THAT PRISON RECORDS CONTAINING DETERMINATIONS OF MISCONDUCT,
NOT IN ACCORD WITH REQUIRED PROCEDURES, BE EXPUNGED.  WE DISAGREE AND
REVERSE ON THIS POINT. 

THE QUESTION OF RETROACTIVITY OF NEW PROCEDURAL RULES AFFECTING
INQUIRIES INTO INFRACTIONS OF PRISON DISCIPLINE IS EFFECTIVELY
FORECLOSED BY THIS COURT'S RULING IN MORRISSEY THAT THE DUE PROCESS
REQUIREMENTS THERE ANNOUNED WERE TO BE "APPLICABLE TO FUTURE
REVOCATIONS OF PAROLE," 408 U.S., AT 490.  DESPITE THE FACT THAT
PROCEDURES ARE RELATED TO THE INTEGRITY OF THE FACTFINDING PROCESS, IN
THE CONTEXT OF DISCIPLINARY PROCEEDINGS, WHERE LESS IS GENERALLY AT
STAKE FOR AN INDIVIDUAL THAN AT A CRIMINAL TRIAL, GREAT WEIGHT SHOLD BE
GIVEN TO THE SIGNIFICANT IMPACT A RETROACTIVITY RULING WOULD HAVE ON
THE ADMINISTRATION OF ALL PRISONS IN THE COUNTRY, AND THE RELIANCE
PRISON OFFICIAL PLACED, IN GOOD FAITH, ON PRIOR LAW NOT REQUIRING SUCH
PROCEDURES.  DURING 1973, THE FEDERAL GOVERNMENT ALONE CONDUCTED 19,000
MISCONDUCT HEARINGS, AS COMPARED WITH 1,173 PAROLE REVOCATION HEARINGS,
AND 2,023 PROBATION REVOCATION HEARINGS.  IF MORRISSEY-SCARPELLI RULES
ARE NOT RETROACTIVE OUT OF CONSIDERATION FOR THE BURDEN OF FEDERAL AND
STATE OFFICIALS, THIS CASE IS A FORTIORT.  WE ALSO NOTE THAT A CONTRARY
HOLDING WOULD BE VERY TROUBLESOME FOR THE PAROLE SYSTEM SINCE
PERFORMANCE IN PRISON IS OFTEN A RELEVANT CRITERION FOR PAROLE.  ON THE
WHOLE, WE DO NOT THINK THAT ERROR WAS SO PERVASIVE IN THE SYSTEM UNDER
THE OLD PROCEDURES AS TO WARRANT THIS COST OR RESULT.              VII 

THE ISSUE OF THE EXTENT TO WHICH PRISON AUTHORITIES CAN OPEN AND
INSPECT INCOMING MAIL FROM ATTORNEYS TO INMATES, HAS BEEN CONSIDERABLY
NARROWED IN THE COURSE OF THIS LITIGATION.  THE PRISON REGULATION UNDER
CHALLENGE PROVIDED THAT "(ALL INCOMING AND OUTGOING MAIL WILL BE READ
AND INSPECTED," AND NO EXCEPTION WAS MADE FOR ATTORNEY- PRISONER MAIL. 
THE DISTRICT COURT HELD THAT INCOMING MAIL FROM ATTORNEYS MIGHT BE
OPENED IF NORMAL CONTRABAND DETECTION TECHNIQUES FAILED TO DISCLOSE
CONTRABAND, AND IF THERE WAS A REASONABLE POSSIBILITY THAT CONTRABAN
WOULD BE INCLUDED IN THE MAIL.  IT FURTHER HELD THAT IF AN INCOMING
LETTER WAS MARKED "PRIVILEGED," THUS IDENTIFYING IT AS FROM AN
ATTORNEY, THE LETTER COULD NOT BE OPENED EXCEPT IN THE PRESENCE OF THE
INMATE.  PRISON AUTHORITIES WERE NOT TO READ THE MAIL FROM ATTORNEYS. 
THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT ORDER, BUT PLACED
ADDITIONAL RESTRICTIONS ON PRISON AUTHORITIES.  IF THERE WAS DOUBT THAT
A LETTER WAS ACTUALLY FORN AN ATTORNEY, "A SIMPLE TELEPHONE CALL SHOULD
BE ENOUGH TO SETTLE THE MATTER," 483 F.2D, AT 1067, THE COURT THUS
IMPLYING THAT  OFFICIALS MIGHT HAVE TO GO BEYOND THE FACE OF THE
ENVELOPE, AND THE "PRIVILEGED" LABEL, IN ASCERTAINING WHAT KIND OF
COMMUNICATION WAS INVOLVED.  THE COURT FURTHER STATED THAT "THE DANGER
THAT A LETTER FROM AN ATTORNEY, AN OFFICER OF THE COURT, WILL CONTAIN
CONTRABAND IS ORDINARILY TOO REMOTE AND TOO SPECULATIVE TO JUSTIFY THE
(PETITIONERS') REGULATION PERMITTING THE OPENING AND INSPECTION OF ALL
LEGAL MAIL."  IBID.  WHILE METHODS TO DETECT CONTRABAND COULD BE
EMPLOYED, A LETTER WAS TO BE OPENED ONLY "IN THE APPROPRIATE
CIRCUMSTANCES" IN THE PRESENCE OF THE INMATE. 

PETITIONERS NOW CONCEDE THAT THEY CANNOT OPEN AND READ MAIL FROM
ATTORNEYS TO INMATES, BUT CONTEND THAT THEY MAY OPEN ALL LETTERS FROM
ATTORNEYS AS LONG AS IT IS DONE IN THE PRESENCE OF THE PRISONERS.  THE
NARROW ISSUE THUS PRESENTED IS WHETHER LETTERS DETERMINED OR FOUND TO
BE FROM ATTORNEYS MAY BE OPENED BY PRISON AUTHORITIES IN THE PRESENCE
OF THE INMATE OR WHETHER SUCH MAIL MUST BE DELIVERED UNOPENED IF NORMAL
DETECTION TECHNIQUES FAIL TO INDICATE CONTRABAND. 

RESPONDENTS ASSERTS THAT HIS FIRST, SIXTH, AND FOURTEENTH AMENDMENT
RIGHTS ARE INFRINGED, UNDER A PROCEDURE WHEREBY THE STATE MAY OPEN MAIL
FROM HIS ATTORNEY, EVEN THOUGH IN HIS PRESENCE AND EVEN THOUGH IT MAY
NOT BE READ.  TO BEGIN WITH, THE CONSITITUTIONAL STATUS OF THE RIGHTS
ASSERTED, AS APPLIED IN THIS SITUATION, IS FAR FROM CLEAR.  WHILE FIRST
AMENDMENT RIGHTS OF CORRESPONDENTS WITH PRISONERS MAY PROTECT AGAINST
THE CENSORING OF INMATE MAIL, WHEN NOT NECESSARY TO PROTECT LEGITIMATE
GOVERNMENTAL INTERESTS, SEE PROCUNIER V. MARTINEZ, 416 U.S. 396 (1974),
THIS COURT HAS NOT YET RECOGNIZED FIRST AMENDMENT RIGHTS OF PRISONERS
IN THIS CONTEXT, CF. CRUZ V. BETO, 405 U.S. 319 (1972); COOPER . PATE,
378 U.S. 546 (1964).  FURTHERMORE, FREEDOM FROM CENSORSHIP IS NOT
EQUIVALENT TO FREEDOM FROM INSPECTION OR PERUSAL.  AS TO THE SIXTH
AMENDMENT, ITS REACH IS ONLY TO PROTECT THE ATTORNEY-CLIENT
RELATIONSHIP FROM INTRUSION IN THE CRIMINAL SETTING, SEE BLACK V.
UNITED STATES, 385 U.S. 26 (1966); O'BRIEN V. UNITED STATES, 386 U.S.
345 (1967); SEE ALSO COPLON V. UNITED STATES, 89 U.S. APP. D.C. 103,
191 F.2D 749 (1951), WHILE THE CLAIM HERE WOULD INSULATE ALL MAIL FROM
INSPECTION, WHETHER RELATED TO CIVIL OR CRIMINAL MATTERS.  FINALLY, THE
FOURTEENTH AMENDMENT DUE PROCESS CLAIM BASED ON ACCESS TO THE COURTS,
EX PARTE HULL, 312 U.S. 546 (1941); JOHNSON V. AVERY, 393 U.S. 483
(1969); YOUNGER V. GILMORE, 404 U.S. 15 (1971), HAS NOT BEEN EXTENDED
BY THIS COURT TO APPLY FURTHER THAN PROTECTING THE ABILITY OF AN INMATE
TO PREPARE A PETITION OR COMPLAINT.  MOREOVER, EVEN IF ONE WERE TO
ACCEPT THE ARGUMENT THAT INSPECTION OF INCOMING MAIL FROM AN ATTORNEY
PLACED AN OBSTACLE TO ACCESS TO THE COURT, IT IS FAR FROM CLEAR THAT
THIS BURDEN IS A SUBSTANTIAL ONE.  WE NEED NOT DECIDE, HOWEVER, WHICH,
IF ANY, OF THE ASSERTED RIGHTS ARE OPERATIVE HERE, FOR THE QUESTION IS
WHETHER, ASSUMING SOME CONSTITUTIONAL RIGHT IS IMPLICATED, IT IS
INFRINGED BY THE PROCEDURES NOW FOUND ACCEPTABLE BY THE STATE. 

IN OUR VIEW, THE APPROACH OF THE COURT OF APPEALS IS UNWORKABLE AND
NONE OF THE ABOVE RIGHTS IS INFRINGED BY THE PROCEDURES PETITIONERS NOW
ACCEPT.  IF PRISON OFFICIALS HAD TO CHECK IN EACH CASE WHETHER A
COMMUNICATION WAS FROM AN ATTORNEY BEFORE OPENING IT FOR INSPECTION, A
NEAR-IMPOSSIBLE TASK OF ADMINISTRATION WOULD BE IMPOSED.  WE THINK IT
ENTIRELY APPROPRIATE THAT THE STATE REQUIRE ANY SUCH COMMUNICATIONS TO
BE SPECIALLY MARKED AS ORIGINATING FROM AN ATTORNEY, WITH HIS NAME AND
ADDRESS BEING GIVEN, IF THEY ARE TO RECEIVE SPECIAL TREATMENT.  IT
WOULD ALSO CERTAINLY BE PERMISSABLE THAT PRISON AUTHORITIES REQUIRE
THAT A LAWYER DESIRING TO CORRESPOND WITH A PRISONER, FIRST IDENTIFY
HIMSELF AND HIS CLIENT TO THE PRISON OFFICIALS, TO ASSURE THAT THE
LETTERS MARKED PRIVILEGED ARE ACTUALLY FROM MEMBERS OF THE BAR.  AS TO
THE ABILITY TO OPEN THE MAIL IN THE PRESENCE OF INMATES, THIS COULD IN
NO WAY CONSTITUTE CENSORSHIP, SINCE THE MAIL WOULD NOT BE READ. 
NEITHER COULD IT CHILL SUCH COMMUNICATIONS, SINCE THE INMATE'S PRESENCE
INSURES THAT PRISON OFFICIALS WILL NOT READ THE MAIL.  THE POSSIBILITY
THAT CONTRABAND WILL BE ENCLOSED IN LETTERS, EVEN THOSE FROM APPARENT
ATTORNEYS, SURELY WARRANTS PRISON OFFICIALS' OPENING THE LETTERS.  WE
DISAGREE WITH THE COURT OF APPEALS THAT THIS SHOULD ONLY BE DONE IN
"APPROPRIATE CIRCUMSTANCES."  SINCE A FLEXIBLE TEST, BESIDES BEING
UNWORKABLE, SERVES NO ARGUABLE PURPOSE IN PROTECTING ANY OF THE
POSSIBLE CONSTITUTIONAL RIGHTS ENUMERATED BY RESPONDENT, WE THINK THAT
PETITONERS, BY ACCEDING TO A RULE WHEREBY THE INMATE IS PRESENT WHEN
MAIL FROM ATTORNEYS IS INSPECTED, HAVE DONE ALL, AND PERHAPS EVEN MORE,
THAN THE CONSTITUTION REQUIRES. 

        VIII 

THE LAST ISSUE PRESENTED IS WHETHER THE COMPLEX MUST MAKE AVAILABLE,
AND IF SO HAS MADE AVAILABLE, ADEQUATE LEGAL ASSISTANCE, UNDER JOHNSON
V. AVERY, SUPRA, FOR THE PREPARATION OF HABEAS CORPUS PETITIONS AND
CIVIL RIGHTS ACTIONS BY INMATES.  THE ISSUE ARISES IN THE CONTEXT OF A
CHALLENGE TO A REGULATION PROVIDING, IN PERTINENT PART: 

"LEGAL WORK

  "A LEGAL ADVISOR HAS BEEN APPOINTED BY THE WARDEN FOR THE BENEFIT
OF THOSE

  OFFENDERS WHO ARE IN NEED OF LEGAL ASSISTANCE.  THIS INDIVIDUAL
IS AN OFFENDER WHO HAS GENERAL

  KNOWLEDGE OF THE LAW PROCEDURE.  HE IS NOT AN ATTORNEY AND CAN
NOT REPRESENT YOU AS SUCH.  "NO

  OTHER OFFENDER THAN THE LEGAL ADVISOR IS PERMITTED TO ASSIST YOU
IN THE PREPARATION OF LEGAL

  DOCUMENTS UNLESS WITH THE SPECIFIC WRITTEN PERMISSION OF THE
WARDEN." 

RESPONDENT CONTENDED THAT THIS REGULATION WAS INVALID BECAUSE IT
FAILED TO ALLOW INMATES TO FURNISH ASSISTANCE TO ONE ANOTHER.  THE
DISTRICT COURT ASSUMED THAT THE WARDEN FREELY GAVE PERMISSION TO
INMATES TO GIVE ASSISTANCE TO EACH OTHER, AND THAT JOHNSON V. AVERY,
SUPRA, WAS THEREBY SATISFIED.  THE COURT OF APPEALS FOUND THAT THE
RECORD DID NOT SUPPORT THE ASSUMPTION AND THAT PERMISSION HAS BEEN
DENIED SOLELY BECAUSE OF THE EXISTENCE OF THE INMATE LEGAL ADVISOR, ONE
OF THE INMATES SPECIALLY APPROVED BY THE PRISON AUTHORITIES.  IT
DECIDED, THEREFORE, TO REMAND THE CASE TO DECIDE WHETHER THE ONE
ADVISOR SATISFIED THE REQUIREMENTS OF JOHNSON V. AVERY.  IN SO DOING,
THE COURT STATED THAT IN DETERMINING THE NEED FOR LEGAL ASSISTANCE,
PETITIONERS WERE TO TAKE INTO ACCOUNT THE NEED FOR ASSISTANCE IN CIVIL
RIGHTS ACTIONS AS WELL AS HABEAS CORPUS SUITS. 

IN JOHNSON V. AVERY, AN INMATE WAS DISCIPLINED FOR VIOLATING A
PRISON REGULATION WHICH PROHIBITED INMATES FROM ASSISTING OTHER
PRISONERS IN PREPARING HABEAS CORPUS PETITIONS.  THE COURT HELD THAT
"UNLESS AND UNTIL THE STATE PROVIDES SOME REASONABLE ALTERNATIVE TO
ASSIST INMATES IN THE PREPARATION OF PETITIONS FOR POST-CONVICTION
RELIEF," INMATES COULD NOT BE BARRED FROM FURNISHING ASSISTANCE TO EACH
OTHER.  393 U.S., AT 490.  THE COURT EMPHASIZED THAT THE WRIT OF HABEAS
CORPUS WAS OF FUNDAMENTAL IMPORTANCE IN OUR CONSTITUTIONAL SCHEME, AND
SINCE THE BASIC PURPOSE OF THE WRIT "IS TO ENABLE THOSE UNLAWFULLY
INCARCERATED TO OBTAIN THEIR FREEDOM, IT IS FUNDAMENTAL THAT ACCESS OF
PRISONERS TO THE COURTS FOR THE PURPOSE OF PRESENTING THEIR COMPLAINTS
MAY NOT BE DENIED OR OBSTRUCTED."  ID., AT 485.  FOLLOWING AVERY, THE
COURT IN YOUNGER V. GILMORE, SUPRA, AFFIRMED A THREE-JUDGE COURT
JUDGMENT WHICH REQUIRED STATE OFFICIALS TO PROVIDE INDIGENT INMATES
WITH ACCESS TO A REASONABLY ADEQUATE LAW LIBRARY FOR PREPARATION OF
LEGAL ACTIONS. 

PETITIONERS CONTEND THAT AVERY IS LIMITED TO ASSISTANCE IN THE
PREPARATION OF HABEAS CORPUS PETITIONS AND DISPUTES THE DIRECTION OF
THE COURT OF APPEALS TO THE DISTRICT COURT THAT THE CAPACITY OF THE
INMATE ADVISER BE ASSESSED IN LIGHT OF THE DEMAND FOR ASSISTANCE IN
CIVIL RIGHTS ACTIONS AS WELL AS IN THE PREPARATION OF HABEAS CORPUS
WRITS.  PETITIONERS TAKE TOO NARROW A VIEW OF THAT DECISION. 

FIRST, THE DEMARCATION LINE BETWEEN CIVIL RIGHTS ACTIONS AND HABEAS
CORPUS PETITIONS IS NOT ALWAYS CLEAR.  THE COURT HAS ALREADY RECOGNIZED
INSTANCES WHERE THE SAME CONSTITUTIONAL RIGHTS MIGHT BE REDRESSED UNDER
EITHER FORM OF RELIEF.  CF. PREISER V. RODRIQUEZ, 411 U.S. 475 (1973);
HAINES V. KERNER, 404 U.S. 519 (1972); WILWORDING V. SWENSON, 404 U.S.
249 (1971).  SECOND, WHILE IT IS TRUE THAT ONLY IN HABEAS CORPUS
ACTIONS MAY RELIEF BE GRANTED WHICH WILL SHORTEN THE TERM OF
CONFINEMENT, PREISER, SUPRA, IT IS MORE PERTINENT THAT BOTH ACTIONS
SERVE TO PROTECT BASIC CONSTITUTIONAL RIGHTS.  THE RIGHT OF ACCESS TO
THE COURTS, UPON WHICH AVERY WAS PREMISED, IS FOUNDED IN THE DUE
PROCESS CLAUSE AND ASSURES THAT NOT PERSON WILL BE DENIED THE
OPPORTUNITY TO PRESENT TO THE JUDICIARY ALLEGATIONS CONCERNING
VIOLATIONS OF FUNDAMENTAL CONSTITUTIONAL RIGHTS.  IT IS FUTILE TO
CONTEND THAT THE CIVIL RIGHTS ACT OF 1871 HAS LESS IMPORTANCE IN OUR
CONSTITUTIONAL SCHEME THAN DOES THE GREAT WRIT.  THE RECOGNITION BY
THIS COURT THAT PRISONERS HAVE CERTAIN CONSTITUTIONAL RIGHTS WHICH CAN
BE PROTECTED BY CIVIL RIGHTS ACTIONS WOULD BE DILUTED IF INMATES, OFTEN
"TOTALLY OR FUNCTIONALLY ILLITERATE," WERE UNABLE TO ARTICULATE THEIR
COMPLAINTS TO THE COURTS.  ALTHOUGH THERE MAY BE ADDITIONAL BURDENS ON
THE COMPLEX, IF INMATES MAY SEEK HELP FROM OTHER INMATES, OR FROM THE
INMATE ADVISER IF HE PROVES ADEQUATE, IN BOTH HABEAS AND CIVIL RIGHTS
ACTIONS, THIS SHOULD NOT PROVE OVERWHELMING.  AT PRESENT ONLY ONE
INMATE SERVES AS LEGAL ADVISOR AND IT MAY BE EXPECTED THAT OTHER
QUALIFIED INMATES COULD BE FOUND FOR ASSISTANCE IF THE COMPLEX INSISTS
ON NAMING THE INMATES FROM WHOM HELP MAY BE SOUGHT. 

FINDING NO REASONABLE DISTINCTION BETWEEN THE TWO FORMS OF ACTIONS,
WE AFFIRM THE COURT OF APPEALS ON THIS POINT, AND AS THE COURT OF
APPEALS SUGGESTED, THE DISTRICT COURT WILL ASSESS THE ADEQUACY OF LEGAL
ASSISTANCE UNDER THE REASONABLE-ALTERNATIVE STANDARD OF AVERY. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

/1/ THE PRACTICES, RULES, AND REGULATIONS OF THE COMPLEX UNDER
CHALLENGE IN THIS LITIGATION ARE ONLY IN FORCE AT THAT INSTITUTION, AND
ARE DRAFTED BY THE WARDEN, AND NOT BY THE DIRECTOR OF CORRECTIONAL
SERVICES.  SINCE NO STATEWIDE REGULATION WAS INVOLVED THERE WAS NO NEED
TO CONVENE A THREE-JUDGE COURT.  SEE BOARD OF REGENTS V. NEW LEFT
EDUCATION PROJECT, 404 U.S. 541 (1972). 

/2/  THE DISTRICT COURT ALSO DETERMINED THAT CONTRARY TO STATE
STATUTORY PROVISIONS CERTAIN GOOD TIME HAD BEEN TAKEN AWAY FOR
VIOLATIONS WHICH WERE NOT "FLAGRANT OR SERIOUS" WITHIN THE MEANING OF
THE CONTROLLING STATE STATUTE, SEE N.5, INFRA, AND ORDERED THAT GOOD
TIME BE RESTORED FOR ALL SUCH OFFENSES.  THE COURT OF APPEALS AFFIRMED
THE HOLDING.  PETITIONERS DO NOT CHALLENGE THAT HOLDING IN THIS COURT. 

CERTAIN ISSUES ORIGINALLY IN CONTEST IN THIS LITIGATION WERE SETTLED
BY STIPULATION AND ORDER IN THE DISTRICT COURT.  THESE CONCERNED SUCH
MATTERS AS PROCESSING INMATE LETTERS TO SENTENCING JUDGES, THE
PROVISION FOR POSTAGE TO MAIL SUCH LETTERS, THE ADEQUACY OF AND ACCESS
TO THE PRISON LIBRARY, AND THE AVAILABILITY OF A NOTARY SERVICE. 
OTHERS WERE DECIDED BY THE DISTRICT COURT OF APPEALS.  THESE ISSUES
INCLUDED THE DENIAL OF USE OF TYPEWRITERS TO INMATES, REPRISALS AGAINST
INMATES WHO PETITION THE COURTS, THE NUMBER OF INMATES WHO COULD USE
THE PRISON LIBRARY AT ONE TIME, THE LENGTH OF TIME WHICH COULD BE SPENT
IN THE LIBRARY, DELAY IN RECEIVING MAIL, CENSORSHIP OF LETTERS TO THE
NEWS MEDIA AND PUBLIC OFFICIALS, AND LIMITATIONS ON NUMBERS OF LETTERS
WHICH CAN BE WRITTEN.  NONE OF THESE ISSUES IS RAISED HERE. 

/3/  NO ISSUE ARE RAISED HERE, NOR WERE THEY IN THE COURT OF
APPEALS, AS TO THE RULING IN THE DISTRICT COURT ON RESTRICTIONS ON
OUTGOING MAIL. 

/4/  THE COURT OF APPEALS FOUND THAT THE ONLY PERSON ALLOWED TO
RENDER LEGAL ASSISTANCE WAS THE "LEGAL ADVISOR," AND THAT THE WARDEN
DID NOT ALLOW PRISONERS TO CONSULT WITH OTHER INMATES.  THAT FINDING,
WHICH DISAGREED TO SOME EXTENT WITH THE DISTRICT COURT'S, IS NOT
CHALLENGED BY PETITIONERS. 

/5/  THAT STATUTORY PROVISION, PROVIDES, IN FULL: 

"(1) THE CHIEF EXECUTIVE OFFICER OF EACH FACILITY SHALL BE
RESPONSIBLE FOR THE DISCIPLINE OF THOSE PERSONS COMMITTED TO THE
DIVISION OF CORRECTIONS WHO RESIDE THEREIN.  NO PERSON SHALL BE
PUNISHED EXCEPT UPON THE ORDER OF THE CHIEF EXECUTIVE OFFICER OF THE
FACILITY; NOT SHALL ANY PUNISHMENT BE IMPOSED OTHERWISE THAN IN
ACCORDANCE WITH THIS SECTION.     "(2) EXCEPT IN FLAGRANT OR SERIOUS
CASES, PUNISHMENT FOR MISCONDUCT SHALL CONSIST OF DEPRIVATION OF
PRIVILEGES.  IN CASES OF FLAGRANT OR SERIOUS CONDUCT, THE CHIEF
EXECUTIVE OFFICER MAY ORDER THAT A PERSON'S REDUCTION OF TERM AS
PROVIDED IN SECTION 83-1,107 BE FORFEITED OR WITHHELD AND ALSO THAT THE
PERSON BE CONFINED IN A DISCIPLINARY CELL.  THE CHIEF EXECUTIVE OFFICER
MAY ORDER THAT SUCH PERSON, DURING ALL OR PART OF THE PERIOD IN A
DISCIPLINARY CELL, BE PUT ON AN ADEQUATE AND HEALTHFUL DIET.  A PERSON
IN A DISCIPLINARY CELL SHALL BE VISITED AT LEAST ONCE EVERY EIGHT
HOURS.  NO CRUEL, INHUMAN OR CORPORAL PUNISHMENT SHALL BE USED ON ANY
PERSON. 

"(3) THE CHIEF EXECUTIVE OFFICER SHALL MAINTAIN A RECORD OF BREACHES
OF DISCIPLINE, OF THE DISPOSITION OF EACH CASE, AND OF THE PUNISHMENT,
IF ANY, FOR EACH SUCH BREACH.  EACH BREACH OF DISCIPLINE SHALL BE
ENTERED IN THE PERSON'S FILE, TOGETHER WITH THE DISPOSITION OR
PUNISHMENT THEREFOR. 

"(4) THE CHIEF EXECUTIVE OFFICER MAY RECOMMEND TO THE DIRECTOR OF
CORRECTIONS THAT A PERSON WHO IS CONSIDERED TO BE INCORRIGIBLE BY
REASON OF FREQUENT INTENTIONAL BREACHES OF DISCIPLINE, OR WHO IS
DETRIMENTAL TO THE DISCIPLINE OR THE MORALE OF THE FACILITY, BE
TRANSFERRED TO ANOTHER FACILITY FOR STRICTER SAFEKEEPING AND CLOSER
CONFINEMENT, SUBJECT TO THE PROVISIONS OF SECTION 83 - 176." 

AT THE TIME THIS LITIGATION WAS COMMENCED, THE STATUTE GAVE EXAMPLES
OF "FLAGRANT OR SERIOUS MISCONDUCT"--ASSAULT, ESCAPE, ATTEMPT TO
ESCAPE."  NEB. REV. STAT. 83 - 185 (1971).  THIS WAS THE DEFINITION
EMPLOYED BY THE DISTRICT COURT IN DECIDING THAT CERTAIN OFFENSES WERE
NOT SERIOUS WITHIN THE MEANING OF THE ACT.  SEE N.2, SUPRA.  THE
STATUTORY CHANGE DOES NOT AFFECT THE ISSUES IN THIS LITIGATION. 

/6/  SECTION 83 - 1,107, NEB. REV. STAT. (CUM. SUPP. 1972), WHICH
PROVIDES FOR THE ALLOWANCE AND REDUCTION OF GOOD TIME, STATES: 

"(1) THE CHIEF EXECUTIVE OFFICER OF A FACILITY SHALL REDUCE, FOR
PAROLE PURPOSES, FOR GOOD BEHAVIOR AND FAITHFUL PERFORMANCE OF DUTIES
WHILE CONFINED IN A FACILITY THE TERM OF A COMMITTED OFFENDER AS
FOLLOWS: TWO MONTHS ON THE FIRST YEAR, TWO MONTHS ON THE SECOND YEAR,
THREE MONTHS ON THE THIRD YEAR, FOUR MONTHS FOR EACH SUCCEEDING YEAR ON
HIS TERM AND PRO RATA FOR ANY PART THEREOF WHICH IS LESS THAN A YEAR. 
IN ADDITION, FOR ESPECIALLY MERITORIOUS BEHAVIOR OR EXCEPTIONAL
PERFORMANCE OF HIS DUTIES, AN OFFENDER MAY RECIEVE A FURTHER REDUCTION,
FOR PAROLE PURPOSES, NOT TO EXCEED FIVE DAYS, FOR ANY MONTH OF
IMPRISONMENT.  THE TOTAL OF ALL SUCH REDUCTIONS SHALL BE DEDUCTED: 

"(A) FROM HIS MINIMUM TERM, TO DETERMINE THE DATE OF HIS ELIGIBILITY
FOR RELEASE ON PAROLE; AND 

"(B) FROM HIS MAXIMUM TERM, TO DETERMINE THE DATE WHEN RELEASE ON
PAROLE BECOMES MANDATORY UNDER THE PROVISIONS OF SECTION 83 - 1,111. 

"(2) REDUCTIONS OF SUCH TERMS MAY BE FORFEITED, WITHHELD AND
RESTORED BY THE CHIEF EXECUTIVE OFFICER OF THE FACILITY AFTER THE
OFFENDER HAS BEEN CONSULTED REGARDING THE CHARGES OF MISCONDUCT.  NO
REDUCTION OF AN OFFENDER'S TERM FOR ESPECIALLY MERITORIOUS BEHAVIOR OR
EXCEPTIONAL PERFORMANCE OF HIS DUTIES SHALL BE FORFEITED OR WITHHELD
AFTER AN OFFENDER IS RELEASED ON PAROLE. 

"(3) GOOD TIME OR OTHER REDUCTIONS OF SENTENCE GRANTED UNDER THE
PROVISIONS OF ANY LAW PRIOR TO JULY 6, 1972 MAY BE FORFEITED, WITHHELD,
OR RESTORED IN ACCORDANCE WITH THE TERMS OF THIS ACT." 

SPECIAL PROVISIONS ARE SET UP BY STATUTE DEALING WITH THE TRANSFER
OF MINORS.  SEE NEBRASKA TREATMENT AND CORRECTIONS ACT 7, AS AMENDED BY
LB57, SESSION LAWS 1973, 1, NEB. REV. STAT. 83 - 176 (SUPP. 1973). 

CERTAIN CHANGES MADE IN 83 - 1,107, BETWEEN TIME SUIT WAS BROUGHT
AND NOW, AS RELATED IN THE PRIOR VERSION OF THE PROVISION, NEB. REV.
STAT. 83 - 1,107 (1971), ARE NOT IMPORTANT TO THE ISSUES IN DISPUTE
HERE. 

DETERMINATIONS OF LOSS OF GOOD TIME ARE DIRECTLY RELEVANT TO
RECEIVING PAROLE.  UNDER NEB. REV. STAT. 83 - 1,109 (1971), ALL
REDUCTIONS ARE TO BE REPORTED TO AND CONSIDERED BY PAROLE AUTHORITIES. 

BY PRISON REGULATION, PRISONERS MAY ALSO EARN "BLOOD TIME."  THE
PERTINENT REGULATION PROVIDES:  "ANYONE WHO DONATES BLOOD TO THE
AMERICAN RED CROSS RECEIVES GOOD TIME CREDITS FOR THEIR DONATIONS. 
ANYONE UNDER THE AGE OF 18 MUST HAVE THE WARDEN'S APPROVAL.  THOSE OVER
18 MAY VOLUNTARILY GIVE BLOOD ON THE FOLLOWING SCHEDULE MONTHS: MAY,
AUGUST AND DECEMBER.  THE RED CROSS BLOODMOBILE UNIT IS GENERALLY
SCHEDULED FOR THE FIRST FULL WEEK OF THE MONTHS MENTIONED ABOVE.  "YOU
WILL REDUCE FROM YOUR SENTENCE, VIA THE BOARD OF PAROLE APPROVAL, FIVE
DAYS FOR THE FIRST DONATION, TEN DAYS FOR THE SECOND DONATION, AND
FIFTEEN DAYS FOR EVERY DONATION THEREAFTER.  "SHOULD YOU RECEIVE A
DISCIPLINARY REPORT OR BELOW AVERAGE WORK REPORT ANY TIME BETWEEN
DONATIONS, YOU WILL BE CREDITED ONLY FIVE DAYS THE NEXT TIME YOU DONATE
BLOOD TO THE RED CROSS AS A RESULT OF THE DISCIPLINARY ACTION." 

SINCE "BLOOD TIME" OPERATES LIKE GOOD TIME TO REDUCE THE TERM OF
SENTENCE, AND SINCE IT REPRESENTS ONLY AN ADDITIONAL WAY TO ACCUMULATE
GOOD TIME, IT IS CONSIDERED TO BE INCLUDED WITHIN THE MEANING OF THAT
TERM. 

/7/  THE RECORD DOES NOT DISCLOSE WHAT SPECIFIC SANCTIONS ARE
EMPLOYED AT THE COMPLEX UNDER THE GENERAL HEADING OF "DEPRIVATION OF
PRIVILEGES." 

/8/  THE REGULATIONS, IN FULL, ARE: "POLICY:  IN THE INTEREST OF
TREATMENT-ORIENTED DISCIPLINE, IT IS NECESSARY THAT INMATES AND STAFF
MEMBERS MAINTAIN HIGH STANDARDS OF BEHAVIOR, COURTESY AND PERSONAL
CONDUCT.  IT IS THE POLICY OF THIS INSTITUTION, IN ADMINISTERING
DISCIPLINE, TO GAIN VOLUNTARY ACCEPTANCE OF CERTAIN LIMITATIONS BY THE
INMATE BODY.  DISCIPLINE MUST BE REALISTICALLY ADMINISTERED IN ORDER TO
MAINTAIN THE GENERAL WELFARE OF THE INSTITUTION COMMUNITY AND
CONFORMANCE TO SPECIFIED STANDARDS AND REGULATIONS, WHILE AT THE SAME
TIME IMPLEMENTING TREATMENT OF THE OFFENDER.  CPURPOSE:  TO SET FORTH
THE INSTITUTIONAL POLICY AND PROCEDURES FOR THE ADMINISTRATION OF
DISCIPLINE TO INSURE THAT DISCIPLINARY PROCESSES ARE CARRIED OUT AS AN
INTEGRAL PART OF THE TOTAL TREATMENT PROGRAM, AND TO ESTABLISH
PROFESSIONAL STANDARDS OF CONDUCT FOR ALL EMPLOYEES IN FULFILLING THIS
RESPONSIBILITY.  "STANDARDS OF CONDUCT:  THE INSTITUTION POPULATION
WILL BE KEPT INFORMED THROUGH THE ORIENTATION PROCESS AND BY WRITTEN
ORDERS AND MEMORANDUMS AS TO THE STANDARDS OF CONDUCT EXPECTED.  WHEN
IT BECOMES NECESSARY TO REGULATE AND CONTROL A MAN'S CONFORMANCE TO THE
PRESCRIBED STANDARDS, DISCIPLINARY MEASURES CONSISTENT WITH TREATMENT
OF THE INDIVIDUAL WILL BE APPLIED IN APPROPRIATE DEGREE AND IN AN
IMPERSONAL, IMPARTIAL MANNER.  "MISCONDUCT: 

"A. MAJOR MISCONDUCT: MAJOR MISCONDUCT IS A SERIOUS VIOLATION AND
WILL BE REPORTED FORMALLY TO THE ADJUSTMENT COMMITTEE ON THE MISCONDUCT
REPORT FORM AND/OR DETAILED NARRATIVE. 

"B. MINOR MISCONDUCT: MINOR MISCONDUCT IS A LESS SERIOUS VIOLATION
WHICH MAY BE RESOLVED IMMEDIATELY AND INFORMALLY BY THE INMATE'S
SUPERVISOR OR FORMALLY REPORTED ON THE MISCONDUCT REPORT FORM. 
REPEATED MINOR MISCONDUCT SHOULD BE FORMALLY REPORTED.  "MISCONDUCT
REPORTS: 

"A. PREPARATION: IN REPORTING MISCONDUCT ON THE MISCONDUCT REPORT
FORM, THE REPORT SHOULD BE PREPARED CAREFULLY AND ACCURATELY SO AS TO
DESCRIBE EVENTS EXACTLY AS THEY HAPPEN.  THE ACCURATE PREPARATION OF A
MISCONDUCT REPORT IS A MAJOR CONTRIBUTING FACTOR IN ACCURATE EVALUATING
OF THE MISCONDUCT BY THE ADJUSTMENT COMMITTEE.  THE INITIAL STATEMENT
ON THE REPORT SHOULD BE A BRIEF STATEMENT OF THE CHARGE OR CHARGES,
FOLLOWED BY A DETAILED REPORT OF THE INCIDENT.  ARTICLES OF EVIDENCE
SHOULD ALWAYS ACCOMPANY THE REPORT. 

"B.  PROCESSING OF MISCONDUCT REPORTS: COMPLETED MISCONDUCT REPORTS
ALONG WITH ANY ARTICLES OF EVIDENCE, SHOULD BE FORWARDED TO THE CHIEF
CORRECTION SUPERVISOR'S OFFICE FOR INVESTIGATION.  THE SHIFT LIEUTENANT
WILL CONDUCT AN INVESTIGATION, NOTE HIS FINDINGS, AND SUBMIT TO THE
CHIEF CORRECTIONS SUPERVISOR.  THE CHIEF CORRECTIONS SUPERVISER WILL
REVIEW THE REPORT, CONDUCT ADDITIONAL INVESTIGATION IF NECESSARY,
INTERVIEW THE SHIFT LIEUTENANT AND OFFICER SUBMITTING REPORT, AND
VERIFY THE ACCURACY, PROPER PREPARATION OF THE REPORT AND ASSEMBLE ALL
INFORMATION AND ARTICLES REGARDING THE MISCONDUCT REPORT.  UPON
COMPLETION OF THIS INVESTIGATION, ALL INFORMATION WILL BE NOTED ON THE
SPACE PROVIDED ON THE MISCONDUCT REPORT, THEN SUBMITTED TO THE CHAIRMAN
OF THE ADJUSTMENT COMMITTEE SO THE CASE MAY BE PROMPTLY SCHEDULED FOR A
COMMITTEE HEARING.  "ADMINISTRATION OF DISCIPLINE:  THE ADMINISTRATION
OF DISCIPLINE IS HEREBY DELEGATED AS FOLLOWS: 

"A. ALL EMPLOYEES WILL RESOLVE IMMEDIATELY AND INFORMALLY MINOR
VIOLATIONS BY ANY INMATE UNDER THEIR OBSERVATION AND/OR SUPERVISION. 

"B. THE CHEIF CORRECTIONS SUPERVISOR WILL INITIATE PROMPT
INVESTIGATION ON ALL MISCONDUCT REPORTS AND WILL MAINTAIN CONTROL OF
ANY ADVERSE SITUATION AND ITS INMATE PARTICIPANTS. 

"C. ADJUSTMENT COMMITTEE WILL RECEIVE REPORTS OF MISCONDUCT, CONDUCT
HEARINGS, AND MAKE FINDINGS AND IMPOSE DISCIPLINARY ACTIONS.  "THE
ADJUSTMENT COMMITTEE: 

"A. ORGANIZATION: THE ADJUSTMENT COMMITTEE IS COMPOSED AS FOLLOWS:
ASSOCIATE WARDEN CUSTODY, CHAIRMAN; CORRECTIONAL INDUSTRIES
SUPERINTENDENT, MEMBER; RECEPTION CENTER DIRECTOR, MEMBER. 

"NOTE: THE ADJUSTMENT COMMITTEE IS RESPONSIBLE FOR THE PREPARATION
OF MEETING AGENDA, RECORDING, DISTRIBUTION, AND FILING OF ALL REPORTS
AS NECESSARY FOR INSTITUTION REQUIREMENTS.  FURTHER, THE COMMITTEE WILL
ANSWER DIRECTLY TO THE ADMINISTRATIVE ASSISTANT ON MATTERS OF
DISCIPLINE, ADJUSTMENT, AND INVESTIGATIONS CONDUCTED RELATIVE TO THE
DAILY PROCESSING OF MISCONDUCT REPORTS. 

"B. COMMITTEE FUNCTIONS: 

"(1) THE ADJUSTMENT COMMITTEE WILL MEET DAILY AT 8:00 A.M. IN THE
OFFICE OF THE ASSOCIATE WARDEN CUSTODY AND/OR THE ADJUSTMENT CENTER, AS
REQUIRED. 

"(2) THE COMMITTEE WILL REVIEW AND EVALUATE ALL MISCONDUCT REPORTS
AS TO THE UNDERLYING CAUSES FOR THE ADVERSE BEHAVIOR AND WILL CAREFULLY
CONSIDER ALL POSSIBLE COURSES OF ACTION BEFORE REACHING A DECISION. 
DISCIPLINARY ACTION IN ALL CASES WILL BE TREATMENT ORIENTED. 

(3) THE COMMITTEE IS AUTHORIZED TO CONDUCT INVESTIGATIONS, MAKE
FINDINGS, IMPOSE DISCIPLINARY ACTIONS, REFER CASES FOR FURTHER
DIAGNOSIS, RECOMMENDED PROGRAM CHANGES AND TAKE ANY OTHER ACTIONS
DEEMED NECESSARY TO INSURE DECISION EFFECTIVENESS. 

"(4) THE COMMITTEE WILL CONCERN ITSELF WITH INSTITUTION POLICIES AND
PROCEDURES WHICH EFFECT DISCIPLINE, STRIVE TO MAINTAIN CONSISTENCE IN
ITS ACTIONS, AND CONTINUALLY EVALUATE THE EFFECTIVENESS OF ITS
DECISIONS BY APPROPRIATE FOLLOW-UP. 

"(5) THE COMMITTEE WILL MAINTAIN ACCURATE RECORDS AND ASSURE THE
PROMPT AND PROPER COMPLETION OF ALL REQUIRED REPORTS AND FORMS. 

"(6) THE COMMITTEE WILL REVIEW EACH WEEK OR MORE OFTEN, THE PROGRESS
OF ALL INMATES HOUSED IN THE ADJUSTMENT CENTER AND INITIATE OR
RECOMMEND PROGRAM CHANGES WHEN INDICATED.  THE COMMITTEE WILL DOCUMENT
ALL ACTIONS, REVIEW, AND PROGRAM CHANGES SO AS TO PROVIDE THE
CLASSIFICATION COMMITTEE WITH A CLEAR, CONCISE PICTURE OF INDIVIDUAL
INMATE ADJUSTMENT.  "ADJUSTMENT COMMITTEE ACTIONS: 

"A. GENERAL PRINCIPLES: 

(1) THE DECISIONS AND RECOMMENDATIONS OF THE COMMITTEE WILL BE THE
RESULT OF GROUP CONSENSUS AND ADJUSTMENT. 

"(2) FULL CONSIDERATION MUST BE GIVEN TO THE CAUSES FOR THE ADVERSE
BEHAVIOR, THE SETTING AND CIRCUMSTANCES IN WHICH IT OCCURED, THE MAN'S
ACCOUNTABILITY, AND THE CORRECTIONAL TREATMENT GOALS. 

"(3) DISCIPLINARY MEASURES WILL BE TAKEN ONLY AT SUCH TIMES AND TO
SUCH DEGREES AS ARE NECESSARY TO REGULATE AND CONTROL A MAN'S BEHAVIOR
WITHIN ACCEPTABLE LIMITS AND WILL NEVER BE RENDERED CAPRICIOUSLY OR IN
THE NATURE OF RETALIATION OR REVENGE. 

"(4) ACTION WILL BE TAKEN AS SOON AFTER THE OCCURANCE AS
CIRCUMSTATNCES PERMIT. 

"(5) WORK ASSIGNMENTS AND PROGRAM CHANGES WILL NOT BE USED AS
DISCIPLINARY MEASURES. 

"(6) THE USE OF CORPORAL PUNISHMENT IS STRICTLY PROHIBITED. 

"(7) DISCIPLINARY ACTION TAKEN AND RECOMMENDED MAY INCLUDE BUT NOT
NECESSARILY BE LIMITED TO THE FOLLOWING:  REPRIMAND, RESTRICTIONS OF
VARIOUS KINDS, EXTRA DUTY, CONFINEMENT IN THE ADJUSTMENT CENTER,
WITHHOLDING OF STATUTORY GOOD TIME AND/OR EXTRA EARNED GOOD TIME, OR A
COMBINATION OF THE ELEMENTS LISTED HEREIN.  "USE OF SEGREGATION:
INMATES MAY BE PLACED IN SEGREGATION FOR ANY ONE OF THE FOLLOWING
REASONS, AND DOCUMENTATION ON EITHER THE MISCONDUCT REPORT FORM OR IN
NARRATIVE MUST BE SENT TO THE ASSOCIATE WARDEN CUSTODY IN EACH CASE. 

"A. TO INSURE IMMEDIATE CONTROL AND SUPERVISION. 

"B. TO PROTECT POTENTIAL VICTIMS. 

"C. TO INSURE WITNESSES AGAINST INTIMIDATION. 

"D. AS A PUNISHMENT FOR SOME MAJOR INSTITUTIONAL INFRACTION. 

"E. TO CONTROL THOSE WHOSE VIOLENT EMOTIONS ARE OUT OF CONTROL. 

"F. TO INSURE THEIR SAFETY OR THE SAFETY OF OTHERS. 

"G. TO INSURE THE SAFETY AND SECURITY OF THE INSTITUTION. 

"H. DEMONSTRATED DEFIANCE OF PERSONNEL ACTING IN THE LINE OF DUTY. 

"I. WILLFUL REFUSAL TO OBEY ORDERS. 

"NOTE: INMATES AWAITING ACTION OF THE ADJUSTMENT COMMITTEE WILL NOT
ROUTINELY BE PLACED IN THE ADJUSTMENT CENTER UNLESS ONE OR MORE OF THE
ABOVE REASONS ARE EVIDENT. 

"NO MAN SHOULD REMAIN IN THE ADJUSTMENT CENTER LONGER THAN
NECESSARY, AND SPECIAL CARE MUST BE TAKEN TO INSURE THAT THIS UNIT DOES
NOT BECOME A HAVEN FOR THOSE WHO PERSISTENTLY FAIL TO SOLVE THEIR
PROBLEMS. 

"THE ADJUSTMENT COMMITTEE WILL CONDUCT A REVIEW EACH WEEK OR MORE
OFTEN, OF ALL CASES IN THE ADJUSTMENT CENTER IN DISCIPLINE TO CONSIDER
POSSIBLE TREATMENT ALTERNATIVES. 

"IN ADDITION TO THIS, THE INSTITUTION COUNSELOR WILL MAINTAIN A
PROGRESS FILE ON LONG-TERM CONFINEMENT CASES.  THE COUNSELOR HAS THE
RESPONSIBILITY TO MAINTAIN CONTACT WITH THOSE INMATES WHO ARE HOUSED IN
SEGREGATION AND REPORT THEIR PROGRESS OR LACK OF PROGRESS TO THE
ADJUSTMENT COMMITTEE.  THESE PROGRESS REPORTS ARE PREPARED AT THE END
OF EACH MONTH AND ARE USED AS A TOOL IN DETERMINING FURTHER ACTION BY
THE ADJUSTMENT COMMITTEE."     /9/  WHEN A PRISONER IS ISOLATED IN
SOLITARY CONFINEMENT, THERE APPEAR TO BE TWO DIFFERENT TYPES OF
CONDITIONS TO WHICH HE MAY BE EXPOSED.  HE MAY BE INCARCERATED ALONE IN
THE USUAL "DISCIPLINARY CELL," WITH PRIVILEGES SEVERELY LIMITED, FOR AS
LONG AS NECESSARY, OR HE MAY BE PUT IN A "DRY CELL," WHICH, UNLIKE
REGULAR CELLS, CONTAINS NO SINK OR TOILET. 

/10/  THE WARDEN TESTIFIED THAT A GREAT NUMBER OF CASES ARE RESOLVED
WITHOUT CONTEST, AND THAT IN MANY INSTANCES THE INMATE ADMITS HIS GUILT
TO THE INVESTIGATING OFFICER. 

/11/  THE PRAYER OF THE AMENDED COMPLAINT ASKED THE COURT TO
"(ADJUDICATE THAT UNDER THE RULES, PRACTICES AND PROCEDURES AT THE
COMPLEX THE TAKING OF STATUTORY PRISONER GOOD TIME FROM THE INMATES
CONSTITUTES AS INCREASE IN THE INMATES' SENTENCE WITHOUT DUE PROCESS OF
LAW IN VIOLATION OF AMENDMENT XIV . . ."  IT ASKED THE COURT TO "ORDER
THE DEFENDANTS TO RESTORE TO THE PLAINTIFF ROBERT O. MCDONNELL THAT
AMOUNT OF GOOD TIME TAKEN" FROM HIM, AND TO "(ORDER DEFENDANTS TO
SUBMIT A PLAN" WHICH PROVIDED "(FOR A HEARING PROCEDURE IN CONNECTION
WITH WITHHOLDING AND FORFEITURE OF GOOD TIME WHICH COMPLIES WITH THE
REQUIREMENTS OF DUE PROCESS . . . ."  IT FURTHER SOUGHT DAMAGES IN THE
SUM OF $75,000 FOR THE DEPRIVATION OF THE VARIOUS CONSTITUTIONAL RIGHTS
INVOLVED IN LITIGATION, NECESSARILY INCLUDING THE RIGHT TO DUE
PROCESS. 

/12/  ONE WOULD ANTICIPATE THAT NORMAL PRINCIPLES OR RES JUDICATA
WOULD APPLY IN SUCH CIRCUMSTANCES. 

/13/  IT IS SUGGESTED THAT THE COURT OF APPEALS WHOLLY EXCLUDED
MATTER OF GOOD TIME FROM THE PROCEEDINGS ON REMAND.  IT IS TRUE THAT
THE COURT'S OPINION IS ARGUABLY AMBIGUOUS; BUT AS WE UNDERSTAND IT, THE
DISTRICT COURT ON REMAND WAS TO DETERMINE THE VALIDITY OF THE
PROCEDURES FOR DISCIPLINARY HEARINGS THAT MAY RESULT IN SERIOUS
PENALITIES, INCLUDING GOOD TIME, AND THAT APPROPRIATE REMEDIES WERE TO
BE FASHIONED SHORT OF ACTUAL RESTORATION OF GOOD TIME. 

/14/  SEE GENERALLY A. BANDURA, PRINCIPLES OF BEHAVIOR MODIFICATION
(1969); L. KRASNER & L. ULLMANN, RESEARCH IN BEHAVIOR MODIFICATION
(1965); B. SKINNER, SCIENCE AND HUMAN BEHAVIOR (1953). 

/15/  SEE N.8, SUPRA. 

/16/  A SURVEY OF PRISON DISCIPLINARY PRACTICES AND PROCEDURES OF
THE AMERICAN BAR ASSOCIATION'S COMMISSION ON CORRECTIONAL FACILITIES
AND SERVICES (1974), REVEALS THAT 98% OF THE 49 PRISONS SYSTEMS OF THE
STATES AND THE UNITED STATES ANSWERING THE QUESTIONNAIRE PROVIDED
WRITTEN NOTICE OF THE CHARGES TO AN INMATE.  THE SURVEY SHOWS THAT 91%
OF THE SYSTEMS, OUT OF 34 RESPONSES, MAKE A RECORD OF THE HEARINGS. 
/17/  WE NOTE THAT THOUGH NEBRASKA DOES NOT AS A GENERAL MATTER ALLOW
CROSS-EXAMINATION OF ADVERSE WITNESSES AT THE HEARING BEFORE THE
ADJUSTMENT COMMITTEE, THE INMATE IS ALLOWED TO ASK THE CHARGING PARTY
QUESTIONS ABOUT THE NATURE OF THE CHARGES.  HE IS ALSO ALLOWED TO SPEAK
FREELY IN HIS OWN DEFENSE. 

/18/  THE SURVEY, SEE N.16, SUPRA, DISCLOSES THAT CROSS-EXAMINATION
OF WITNESSES IS "ALLOWED" IN 28 STATES, 57% OF THE 49 SYSTEMS
RESPONDING, BUT THE SURVEY ALSO DISCLOSES, THAT EVEN IN THESE 28 STATES
-THE FEDERAL SYSTEM DOES NOT ALLOW CROSS-EXAMINATION--CERTAIN
LIMITATIONS ARE PLACED ON THE USE OF THE PROCEDURES.  ID., AT 19 - 20. 

/19/  ALTHOUGH THE COMPLAINT PUT AT ISSUE THE PROCEDURES EMPLOYED
WITH RESPECT TO THE DEPRIVATION OF GOOD TIME, UNDER THE NEBRASKA
SYSTEM, THE SAME PROCEDURES ARE EMPLOYED WHERE DISCIPLINARY CONFINEMENT
IS IMPOSED.  THE DEPRIVATION OF GOOD TIME AND "SOLITARY" CONFINEMENT
ARE RESERVED FOR INSTANCES WHERE SERIOUS MISBEHAVIOR HAS OCCURED.  THIS
APPEARS A REALISTIC APPROACH, FOR IT WOULD BE DIFFICULT FOR THE
PURPOSES OF PROCEDURAL DUE PROCESS TO DISTINGUISH BETWEEN TO PROCEDURES
THAT ARE REQUIRED WHERE GOOD TIME IS FORFEITED AND THOSE THAT MUST BE
EXTENDED WHEN SOLITARY CONFINEMENT IS AT ISSUE.  THE LATTER REPRESENTS
A MAJOR CHANGE IN THE CONDITIONS OF CONFINEMENT AND IS NORMALLY IMPOSED
ONLY WHEN IT IS CLAMIED AND PROVED THAT THERE HAS BEEN A MAJOR ACT OF
MISCONDUCT.  HERE, AS IN THE CASE OF GOOD TIME, THERE SHOULD BE MIMIMUM
PROCEDURAL SAFEGUARDS AS A HEDGE AGAINST ARBITRARY DETERMINATION OF THE
FACTUAL PREDICATE FOR IMPOSITION OF THE SANCTION.  WE DO NOT SUGGEST,
HOWEVER, THAT THE PROCEDURES REQUIRED BY TODAY'S DECISION FOR THE
DEPRIVATION OF GOOD TIME WOULD ALSO BE REQUIRED FOR THE IMPOSITION OF
LESSER PENALITIES SUCH AS THE LOSS OF PRIVILEGES. 

/20/  THE COURT OF APPEALS, WHICH HAVE RULED ON PROCEDURES REQUIRED
IN PRISON DISCIPLINARY PROCEEDINGS, HAVE BEEN SPLIT.  TWO CIRCUITS HAVE
REQUIRED WRITTEN NOTICE IN ADVANCE, CLUTCHETTE V. PROCUNIER, 497 F.2D
809 (CA9 1974); UNITED STATES EX REL. MILLER V. TWOMEY, 479 F.2D 701
(CA7 1973), WHILE TWO HAVE HELD THAT ORAL NOTICE IS SUFFICIENT, MEYERS
V. ALLDREDGE, 492 F.2D 296 (CA3 1974); BRAXTON V. CARLSON, 483 F.2D 933
(CA3 1973); SOSTRE V. MCGINNIS, 442 F.2D 178 (CA2 !971) (EN
BANC),CERT.  DENIED SUB NOM. OSWALD V. SOSTRE, 405 U.S. 978 (1972). 
THE NINTH CIRCUIT, CLUTCHETTE V. PROCUNIER, SUPRA, HAS HELD THAT A
WRITTEN STATEMENT OF REASONS AND A WRITTEN RECORD OF THE PROCEEDINGS
MUST BE PROVIDED, WHILE THE SECOND AND THIRD CIRCUITS HAVE HELD TO THE
CONTRARY, BRAXTON V. CARLSON, SUPRA; SOSTRE V. MCGINNIS, SUPRA.  TWO
CIRCUITS HAVE HELD THAT THERE IS NO RIGHT TO PRESENT WITNESSES AT A
HEARING, BRAXTON V. CARLSON, SOSTRE V. MCGINNIS, SUPRA, WHILE ONE HAD
HELD THAT THERE MUST BE AN OPPORTUNITY TO REQUEST THE CALLING OF
WITNESSES, UNITED STATES EX REL. MILLER V. TWOMEY, SUPRA.  ONLY THE
NINTH CIRCUIT, CLUTCHETTE V. PROCUNIER, SUPRA, HAS HELD THAT THERE IS
THE FULL POWER AND RIGHT OF AN INMATE TO CALL WITNESSES.  AS TO CROSS
EXAMINATION, TWO CIRCUITS HAVE STATED THAT DUE PROCESS DOES NOT REQUIRE
THIS PROCEDURE, BRAXTON V. CARLSON, SUPRA; SOSTRE V. MCGINNIS, SUPRA.
THE FIRST CIRCUIT HAS HELD THAT WHERE PRISON AUTHORITIES HAD ALREADY
EXTENDED THE RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES, THERE IS NO
REASON TO FORCE THE AUTHORITES TO CALL ADVERSE WHEN THE INMATE COULD
HAVE, PALMIGIANO V. BAXTER, 487 F.2D 1280 (1973).  ONLY THE NINTH
CIRCUIT, CLUTCHETTE V. PROCUNIER, SUPRA, HAS HELD THAT THERE IS A
GENERAL RIGHT OF CROSS-EXAMINATION, BUT EVEN THAT CASE HOLDS THAT THE
RIGHT MAY BE LIMITED WHERE THERE IS A LEGITIMATE FEAR THAT RETRIBUTION
WILL RESULT.  AS TO COUNSEL, TWO CIRCUITS HAVE HELD THAT THERE IS NO
RIGHT, EVEN TO LAY SUBSTITUTES, BRAXTON V. CARLSON, SUPRA; SOSTRE V.
MCGINNIS, SUPRA, WHILE THE THIRD CIRCUIT, MEYERS V. ALLDREDGE, SUPRA,
HAS HELD THAT THERE IS NO RIGHT TO COUNSEL WHERE COUNSEL SUBSTITUTE IS
PROVIDED.  THE FIRST CIRCUIT, PALMIGIANO V. BAXTER, SUPRA, HOLDS THERE
IS NO RIGHT TO RETAINED COUNSEL, EVEN WHERE A STAFF ASSISTANT IS
AVAILABLE, WHILE THE NINTH CIRCUIT, CLUTCHETTE V. PROCUNIER, SUPRA,
ENVISIONS SOME SANCTIONS AT DISCIPLINARY PROCEEDINGS CALLING FOR
PROVISION OF COUNSEL, AND HAS DETERMINED THAT COUNSEL MUST BE PROVIDED
WHERE A PRISON RULE VIOLATION MAY BE PUNISHABLE BY STATE LAW.  AN
IMPARTIAL HEARING BOARD HAS BEEN REQUIRED, TO THE EXTENT THAT A MEMBER
OF THE BOARD MAY NOT PARTICIPATE IN A CASE AS AN INVESTIGATING OR
REVIEWING OFFICER, OR BE A WITNESS, CLUTCHETTE V. PROCUNIER, SUPRA;
BRAXTON V. CARLSON, SUPRA; UNITED STATES EX REL. MILLER V. TWOMEY,
SUPRA.  THE THIRD CIRCUIT, MEYERS V. ALLDREDGE, PRISONER WHOSE GOOD
TIME IS TAKEN AWAY GOES FIRST TO A DISCIPLINARY COMMITTEE AND THEN TO
THE GOOD TIME FORFEITURE BOARD, THAT AN ASSOCIATE COULD NOT SIT ON BOTH
COMMITTEES. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING IN PART. 

I JOIN PART VIII OF THE COURT'S OPINION, HOLDING THAT THE COMPLEX
MAY NOT PROHIBIT INMATES FROM ASSISTING ONE ANOTHER IN THE PREPARATION
OF LEGAL DOCUMENTS UNLESS IT PROVIDES ADEQUATE ALTERNATIVE LEGAL
ASSISTANCE FOR THE PREPARATION OF CIVIL RIGHTS ACTIONS AS WELL AS
PETITIONS FOR HABEAS CORPUS RELIEF.  I ALSO AGREE WITH THE RESULT
REACHED IN PART VII OF THE OPINION OF THE COURT, UPHOLDING THE
INSPECTION OF MAIL FROM ATTORNEYS FOR CONTRABAND BY OPENING LETTERS IN
THE PRESENCE OF THE INMATE.  WHILE I HAVE PREVIOUSLY EXPRESSED MY VIEW
THAT THE FIRST AMENDMENT RIGHTS OF PRISONERS PROHIBIT THE READING OF
INMATE MAIL, SEE PROCUNIER V. MARTINEZ, 416 U.S 396, 422 (1973)
(CONCURRING OPINION), AND WHILE I BELIEVE THAT INMATES' RIGHTS TO
COUNSEL AND TO ACCESS TO THE COURTS ARE ALSO IMPLICATED HERE, I DO NOT
SEE HOW ANY OF THESE CONSTITUTIONAL RIGHTS ARE INFRINGED TO ANY
SIGNIFICANT EXTENT BY THE MERE INSPECTION OF MAIL IN THE PRESENCE OF
THE INMATE. 

MY DISAGREEMENT WITH THE MAJORITY IS OVER, ITS DISPOSITION OF THE
PRIMARY ISSUE PRESENTED BY THIS CASE, THE EXTENT OF THE PROCEDURAL
PROTECTIONS REQUIRED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT IN PRISON DISCIPLINARY PROCEEDINGS.  I HAVE PREVIOUSLY STATED
MY VIEW THAT A PRISONER DOES NOT SHED HIS BASIC CONSTITUTIONAL RIGHTS
AT THE PRISON GATE, AND I FULLY SUPPORT THE COURT'S HOLDING THAT THE
INTEREST OF INMATES IN FREEDOM FROM IMPOSITION OF SERIOUS DISCIPLINE IS
A "LIBERTY"  ENTITLED TO DUE PROCESS PROTECTION.  /1/  BUT, IN MY VIEW,
THE CONTENT WHICH THE COURT GIVES TO THIS DUE PROCESS PROTECTION LEAVES
THESE NOBLE HOLDINGS AS LITTLE MORE THAN EMPTY PROMISES.  TO BE SURE,
THE COURT HOLDS THAT INMATES ARE CONSTITUTIONALLY ENTITLED TO ADVANCE
WRITTEN NOTICE OF THE CHARGES AGAINST THEM AND A STATEMENT OF THE
EVIDENCE RELIED ON, THE FACTS FOUND, AND THE REASONS SUPPORTING THE
DISCIPLINARY BOARD'S DECISION.  APPARENTLY, AN INMATE IS ALSO
CONSTITUTIONALLY ENTITLED TO A HEARING AND AN OPPORTUNITY TO SPEAK IN
HIS OWN DEFENSE.  THESE ARE VALUABLE PROCEDURAL SAFEGUARDS, AND I DO
NOT MEAN FOR A MOMENT TO DENIGRATE THEIR IMPORTANCE. 

BUT THE PURPOSE OF NOTICE IS TO GIVE THE ACCUSED THE OPPORTUNITY TO
PREPARE A DEFENSE, AND THE PURPOSE OF A HEARING IS TO AFFORD HIM THE
CHANCE TO PRESENT THAT DEFENSE.  TODAY'S DECISION DEPRIVES AN ACCUSED
INMATE OF ANY ENFORCEABLE CONSTITUTIONAL RIGHT TO THE PROCEDURAL TOOLS
ESSENTIAL TO THE PRESENTATION OF ANY MEANINGFUL DEFENSE, AND MAKES THE
REQUIRED NOTICE AND HEARING FORMALITIES OF LITTLE UTILITY.  WITHOUT THE
ENFORCEABLE RIGHT TO CALL WITNESSES AND PRESENT DOCUMENTARY EVIDENCE,
AN ACCUSED INMATE IS NOT GUARANTEED THE RIGHT TO PRESENT ANY DEFENSE
BEYONDD HIS OWN WORD.  WITHOUT ANY RIGHT TO CONFRONT AND CROSS-EXAMINE
ADVERSE WITNESSES, THE INMATE IS AFFORDED NO MEANS TO CHALLENGE THE
WORD OF HIS ACCUSERS.  WITHOUT THESE PROCEDURES, A DISCIPLINARY BOARD
CANNOT RESOLVE DISPUTED FACTUAL ISSUES IN ANY RATIONAL OR ACCURATE
WAY.  THE HEARING WILL THUS AMOUNT TO LITTLE MORE THAN A SWEARING
CONTEST, WITH EACH SIDE TELLING ITS VERSION OF THE FACTS--AND, INDEED,
WITH ONLY THE PRISONER'S STORY SUBJECT TO BEING TESTED BY CROSS
EXAMINATION.  IN SUCH A CONTEST, IT SEEMS OBVIOUS TO ME THAT EVEN THE
WRONGLY CHARGED INMATE WILL INVARIABLY BE THE LOSER.  I SEE NO
JUSTIFICATION FOR THE COURT'S REFUSAL TO EXTEND TO PRISONERS THESE
PROCEDURAL SAFEGUARDS WHICH IN EVERY OTHER CONTEXT WE HAVE FOUND TO BE
AMONG THE "MINIMUM REQUIREMENTS OF DUE PROCESS."  MORRISSEY V. BREWER,
408 U.S. 471, 489 (1972). 

THE COURT STATES THAT IT IS "OF THE OPINION THAT THE INMATE FACING
DISCIPLINARY PROCEEDINGS SHOULD BE ALLOWED TO CALL WITNESSES AND
PRESENT DOCUMENTARY EVIDENCE IN HIS DEFENSE WHEN PERMITTING HIS TO DO
SO WILL NOT BE UNDULY HAZARDOUS TO INSTITUTIONAL SAFETY OR CORRECTIONAL
GOALS."  ANTE, AT 566.  SINCE THE COURT IS NOT ORDINARILY IN THE
BUSINESS OF GIVING NEIGHBORLY ADVICE TO STATE CORRECTIONAL AUTHORITIES,
I THINK IT FAIR TO ASSUME THAT THIS STATEMENT REPRESENTS THE CONSIDERED
JUDGMENT OF THE COURT THAT THE CONSTITUTION REQUIRES THAT AN ACCUSED
INMATE BE PERMITTED TO CALL DEFENSE WITNESSES AND PRESENT DOCUMENTARY
EVIDENCE.  STILL, THE COURT HARDLY MAKES THIS CLEAR, AND ENDS UP
DEFERRING TO THE DISCRETION OF PRISON OFFICIALS TO THE EXTENT THAT THE
RIGHT RECOGNIZED IS, AS MY BROTHER DOUGLAS DEMONSTRATES, POST, AT 597 -
598, PRACTICALLY ENFORCEABLE. 

I WOULD MAKE CLEAR THAT AN ACCUSED INMATE'S RIGHT TO PRESENT
WITNESSES AND SUBMIT OTHER EVIDENCE IN HIS DEFENSE IS CONSTITUTIONALLY
PROTECTED AND, IF UNNECESSARILY ABRIDGED, JUDICIALLY ENFORCEABLE.  AS
WE SAID ONLY LAST TERM, "(FEW RIGHTS ARE MORE FUNDAMENTAL THAN THAT OF
AN ACCUSED TO PRESENT WITNESSES IN HIS OWN DEFENSE."F CHAMBERS V.
MISSISSIPPI, 410 U.S. 284, 302 (1973). 

"THE RIGHT TO OFFER THE TESTIMONY OF WITNESSES, AND TO COMPEL THEIR
ATTENDANCE, IF NECESSARY, IS IN PLAIN TERMS THE RIGHT TO PRESENT A
DEFENSE, THE RIGHT TO PRESENT THE DEFENDANT'S VERSION OF THE FACTS AS
WELL AS THE PROSECUTION'S TO THE (HEARING BODY) SO IT MAY DECIDE WHERE
THE TRUTH LIES."  WASHINGTON V. TEXAS, 388 U.S. 14, 19 (1967).  SEE
ALSO MORRISSEY V. BREWER, SUPRA, AT 489; IN RE OLIVER, 333 U.S. 257,
273 (1948).  THE RIGHT TO PRESENT THE TESTIMONY OF IMPARTIAL WITNESSES
AND REAL EVIDENCE TO CORROBORATE HIS VERSION OF THE FACTS IS
PARTICULARLY CRUCIAL TO AN ACCUSED INMATE, WHO OBVIOUSLY FACES A SEVERE
CREDIBILITY PROBLEM WHEN TRYING TO DISPROVE THE CHARGES OF A PRISON
GUARD.  SEE CLUTCHETTE V. PRONIER, 497 F.2D 809, 818 (CA9 1974); ABA
COMMISSION ON CORRECTIONAL FACILITIES AND SERVICES, SURVEY OF PRISON
DISCIPLINARY PRACTICES AND PROCEDURES 19 (1974) (HEREINAFTER ABA
SURVEY). 

I SEE NO PERSUASIVE REASON TO JUSTIFY THE COURT'S REFUSAL TO AFFORD
THIS BASIC RIGHT TO AN ACCUSED INMATE.  THE MAJORITY CITES THE POSSIBLE
INTERFERENCE WITH "SWIFT PUNISHMENT."  BUT HOW OFTEN DO WE HAVE TO
REITERATE THAT THE DUE PROCESS CLAUSE "RECOGNIZES HIGHER VALUES THAN
SPEED AND EFFICENCY"?  FUENTES V. SHEVIN, 407 U.S. 67, 90 - 91, N.22
(1972).  SURELY THE BRIEF PROLONGATION OF DISCIPLINARY HEARINGS
REQUIRED TO HEAR THE TESTIMONY OF A FEW WITNESSES BEFORE REACHING WHAT
WOULD OTHERWISE SEEM TO BE A PRE-ORDAINED DECISION PROVIDES NO SUPPORT
WHATEVER FOR REFUSAL TO GIVE ACCUSED INMATES THIS RIGHT.  NOR DO I SEE
THE "OBVIOUS POTENTIAL FOR DISRUPTION" THAT THE MAJORITY RELIES UPON IN
THE CONTEXT OF AN INMATE'S RIGHT TO CALL DEFENSE WITNESSES.     BUT
EVEN IF THE MAJORITY'S FEAR IN THIS REGARD IS JUSTIFIED, THE POINT THAT
MUST BE MADE CLEAR IS THAT THE ACCUSED PRISONER'S RIGHT TO PRESENT
WITNESSES IS THE CONSTITUTIONAL RULE AND THAT THE NEEDS OF PRISON
SECURITY MUST BE ACCOMMODATED WITHIN A NARROWLY LIMITED EXCEPTION TO
THAT RULE.  THE INMATE'S RIGHT TO CALL WITNESSES SHOULD, OF COURSE, BE
SUBJECT TO REASONABLE LIMITATION BY THE DISCIPLINARY BOARD TO PREVENT
UNDUE DELAY CAUSED BY AN INMATE'S CALLING NUMEROUS CUMULATIVE WITNESSES
OR WITNESSES WHOSE CONTRIBUTIONS WOULD BE OF MARGINAL RELEVANCE.  THE
RIGHT TO CALL A PARTICULAR WITNESS COULD ALSO JUSTIFIABLY BE LIMITED IF
NECESSARY TO PROTECT A CONFIDENTIAL INFORMANT AGAINST A SUBSTANTIAL
RISK OF REPRISAL.  I AGREE WITH THE COURT THAT THERE IS THIS MUCH
FLEXIBILITY IN THE DUE PROCESS REQUIREMENT.  BUT IN MY VIEW THE
EXCEPTIONS MADE TO THE CONSTITUTIONAL RULE MUST BE KEPT TO AN ABSOLUTE
MINIMUM, AND EACH REFUSAL TO PERMIT WITNESSES JUSTIFIED IN WRITING IN
THE DISCIPLINARY FILE, A RULE THE MAJORITY FINDS "USEFUL"  BUT
INEXPLICABLY REFUSES TO PRESCRIBE.  ANTE, AT 566.  AND IF PRISON
AUTHORITIES PERSIST IN A NIGGARDLY INTERPRETATION OF THE INMATES' RIGHT
TO CALL WITNESSES, IT MUST ULTIMATELY BE UP TO THE COURTS TO EXERCISE
THEIR GREAT RESPONSIBILITY UNDER OUR CONSTITUTIONAL PLAN AND ENFORCE
THIS FUNDAMENTAL CONSTITUTIONAL RIGHT. 

WITH RESPECT TO THE RIGHTS OF CONFRONTATION AND CROSS-EXAMINATION,
THE GULF BETWEEN THE MAJORITY OPINION AND MY VIEWS IS MUCH WIDER.  IN
PART, THIS DISAGREEMENT APPEARS TO STEM FROM THE MAJORITY'S VIEW THAT
THESE RIGHTS ARE JUST NOT ALL THAT IMPORTANT.  THUS, THE COURT STATES-
NOT SURPRISINGLY, WITHOUT CITATION OF AUTHORITY, OTHER THAN MR. JUSTICE
WHITE'S SEPARATE OPINION IN ARNETT V. KENNEDY, 416 U.S. 134, 171 (1974)
-THAT CONFRONTATION AND CROSS-EXAMINATION "ARE NOT RIGHTS UNIVERSALLY
APPLICABLE TO ALL HEARINGS."  ANTE, AT 567.  AND THE COURT SUGGESTS
THAT WHILE THESE PROCEDURES MAY BE ESSENTIAL IN SITUATIONS WHERE
"SERIOUS DEPRIVATIONS" LIKE LOSS OF EMPLOYMENT ARE AT STAKE, THEY ARE
NOT SO ESSENTIAL HERE.  I SUPPOSE THE MAJORITY CONSIDERS LOSS OF A JOB
TO BE A MORE SERIOUS PENALTY THAN THE IMPOSITION OF AN ADDITIONAL
PRISON SENTENCE--ON THIS RECORD, RANGING UP TO 18 MONTHS--WHICH IS THE
EFFECTIVE RESULT OF WITHDRAWAL OF ACCUMULATED GOOD TIME. 

I COULD NOT DISAGREE MORE, BOTH WITH RESPECT TO THE SERIOUSNESS OF
THE DEPRIVATION INVOLVED HERE AND THE IMPORTANCE OF THESE RIGHTS.  OUR
DECISIONS FLATLY REJECT THE COURT'S VIEW OF THE DISPENSABILITY OF
CONFRONTAION AND CROSS-EXAMINATION.  WE HAVE HELD THAT "(IN ALMOST
EVERY SETTING WHERE IMPORTANT DECISIONS TURN ON QUESTIONS OF FACT, DUE
PROCESS REQUIRES AN OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE ADVERSE
WITNESSES."  GOLDBERG V. KELLY, 379 U.S 254, 269 (1970).  AND IN GREENE
V. MCELROY, 360 U.S. 474, 496 (1959), WE FOUND THAT THE VIEW THAT CROSS
EXAMINATION AND CONFRONTATION MUST BE PERMITTED WHENEVER "GOVERNMENTAL
ACTION SERIOUSLY INJURES AN INDIVIDUAL, AND THE REASONABLENESS OF THE
ACTION DEPENDS ON FACT FINDINGS" WAS ONE OF THE "IMMUTABLE" PRINCIPLES
OF OUR JURISPRUDENCE--IMMUTABLE, THAT IS, UNTIL TODAY.  SEE ALSO ARNETT
V. KENNEDY, SUPRA, AT 215 (DISSENTING OPINION); CHAMBERS V.
MISSISSIPPI, SUPRA, AT 294 - 295: MORRISSEY V. BREWER, 408 U.S., AT
489: IN RE GAULT, 387 U.S. 1, 56 - 57 (1967).  SURELY CONFRONTAION AND
CROSS-EXAMINATION ARE AS CRUCIAL IN THE PRISON DISCIPLINARY CONTEXT AS
IN ANY OTHER, IF NOT MORE SO.  PRISON DISCIPLINARY PROCEEDINGS WILL
INVARIABLY TURN ON DISPUTED QUESTIONS AF FACT, SEE LANDMAN V. ROYSTER,
333 F. SUPP. 621, 653 (ED VA. 1971), AND, IN ADDITION TO THE USUAL NEED
FOR CROSS-EXAMINATION TO REVEAL MISTAKES OF IDENTITY, FAULTY
PERCEPTIONS, OR CLOUDY MEMORIES, THERE IS A SIGNIFICANT POTENTIAL FOR
ABUSE OF THE DISCIPLINARY PROCESS BY "PERSONS MOTIVATED BY MALICE,
VINDICATIVENESS, INTOLERANCE, PREJUDICE, OR JEALOUSY."  GREEN V.
MCELROY, SUPRA, AT 496, WHETHER THESE BE OTHER INMATES SEEKING REVENGE
OR PRISON GUARDS SEEKING TO VINDICATE THEIR OTHERWISE ABSOLUTE POWER
OVER THE MEN UNDER THEIR CONTROL.  SEE ALSO DAVIS V. ALASKA, 415 U.S.
308, 317 (1974).  I CAN SEE NO RATIONAL MEANS FOR RESOLVING THESE
DISPUTED QUESTIONS OF FACT WITHOUT PROVIDING CONFRONTATION AND CROSS
EXAMINATION. 

THE MAJORITY, HOWEVER, DENIES ACCUSED PRISONERS THESE BASIC
CONSTITUTIONAL RIGHTS, AND LEAVES THESE MATTERS FOR NOW TO THE "SOUND
DISCRETION" OF PRISON OFFICIALS.  SINCE WE ALREADY KNOW HOW NEBRASKA
AUTHORITIES, AT LEAST, HAVE CHOSEN TO EXERCISE THIS DISCRETION, THE
COURT NECESSARILY PUTS ITS STAMP OF APPROVAL ON THE STATE'S FAILURE TO
PROVIDE CONFRONTATION AND CROSS-EXAMINATION.  I SEE NO PERSUASIVE
JUSTIFICATION FOR THIS RESULT.  THE COURT AGAIN CITES CONCERN FOR
ADMINISTRATIVE EFFICIENCY IN SUPPORT OF ITS HOLDING: "PROCEEDINGS WOULD
INEVITABLY BE LONGER AND TEND TO UNMANAGEABILITY."  ANTE, AT 567.  I
CAN ONLY ASSUME THAT THESE ARE MAKEWEIGHTS, FOR I REFUSE TO BELIEVE
THAT THE COURT WOULD DENY FUNDAMENTAL RIGHTS IN RELIANCE ON SUCH TRIVAL
AND EASILY HANDLED CONCERNS. 

A MORE SUBSTANTIAL PROBLEM WITH PERMITTING THE ACCUSED INMATE TO
DEMAND CONFRONTATION WITH ADVERSE WITNESSES IS THE NEED TO PRESERVE THE
SECRECY OF THE IDENTITY OF INMATE INFORMERS AND PROTECT THEM FROM THE
DANGER OF REPRISAL.  I AM WELL AWARE OF THE SERIOUSNESS OF THIS
PROBLEM, AND I AGREE THAT IN SOME CIRCUMSTANCES THIS CONFIDENTIALITY
MUST PREVAIL OVER THE ACCUSED'S RIGHT OF CONFRONTATION.  "BUT THIS
CONCERN FOR THE SAFETY OF INMATES DOES NOT JUSTIFY A WHOLESALE DENIAL
OF THE RIGHT TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES." 
CLUTCHETTE V. PROCUNIER, 497 F.2D, AT 819.  THE NEED TO KEEP THE
IDENTITY OF INFORMANTS CONFIDENTIAL WILL EXIST IN ONLY A SMALL
PERCENTAGE OF DISCIPLINARY CASES.  WHETHER BECAUSE OF THE "INMATES'
CODE" OR OTHERWISE, THE DISCIPLINARY PROCESS IS RARELY INITIATED BY A
FELLOW INMATE AND ALMOST INVARIABLY BY A CORRECTIONAL OFFICER.  I SEE
NO LEGITIMATE NEED TO KEEP CONFIDENTIAL THE IDENTITY OF A PRISON GUARD
WHO FILES CHARGES AGAINST AN INMATE; INDEED, NEBRASKA, LIKE MOST
STATES, ROUTINELY INFORMS ACCUSED PRISONERS OF THE IDENTITY OF THE
CORRECTIONAL OFFICER WHO IS THE CHARGING PARTY, IF HE DOES NOT ALREADY
KNOW.  IN THE RELATIVELY FEW INSTANCES WHERE INMATES PRESS DISCIPLINARY
CHARGES, THE ACCUSED INMATE OFTEN KNOWS THE IDENTITY OF HIS ACCUSER,
AS, FOR EXAMPLE, WHERE THE ACCUSER WAS THE VICTIM OF A PHYSICAL
ASSAULT. 

THUS, THE COURT REFUSES TO ENFORCE PRISONERS' FUNDAMENTAL PROCEDURAL
RIGHTS BECAUSE OF A LEGITIMATE CONCERN FOR SECRECY WHICH MUST AFFECT
ONLY A TINY FRACTION OF DISCIPLINARY CASES.  THIS IS SURELY PERMITTING
THE TAIL TO WAG THE CONSTITUTIONAL DOG.  WHEN FACED WITH A SIMILAR
PROBLEM IN MORRISSEY V. BREWER, SUPRA, WE NONETHELESS HELD THAT THE
PAROLEE HAD THE CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE
ADVERSE WITNESSES, AND PERMITTED AN EXCEPTION TO BE MADE "IF THE
HEARING OFFICER DETERMINES THAT AN INFORMANT WOULD BE SUBJECTED TO RISK
OF HARM IF HIS IDENTITY WERE DISCLOSED."  408 U.S., AT 487.  IN MY
VIEW, THE SAME APPROACH WOULD BE APPROPRIATE HERE. 

ASIDE FROM THE PROBLEM OF PRESERVING THE CONFIDENTIALITY OF INMATE
INFORMERS, THE COURT DOES NOT REQUIRE CONFRONTATION AND CROSS
EXAMINATION OF KNOWN ACCUSERS, WHETHER INMATES OR GUARDS, AND INDEED
DOES NOT EVEN REQUIRE CROSS-EXAMINATION OF ADVERSE WITNESSES WHO
ACTUALLY TESTIFY AT THE HEARING.  YET, AS THE CHIEF JUSTICE RECENTLY
OBSERVED, "(CROSS-EXAMINATION IS THE PRINCIPAL MEANS BY WHICH THE
BELIEVABILITY OF A WITNESS AND THE TRUTH OF HIS TESTIMONY ARE TESTED,"
DAVIS V. ALASKA, SUPRA, AT 316, AND "'(THE MAIN AND ESSENTIAL PURPOSE
OF CONFRONTATION IS TO SECURE FOR THE OPPONENT THE OPPORTUNTITY OF
CROSS-EXAMINATION.'"  ID., AT 315 - 316.  I SEE LITTLE BASIS FOR THE
COURT'S REFUSAL TO RECOGNIZE THE ACCUSED INMATE'S RIGHTS IN THESE
CIRCUMSTANCES.  THE COURT APPARENTLY ACCEPTS PETITIONERS ARGUMENTS THAT
THERE IS A DANGER THAT SUCH CROSS-EXAMINATION WILL PRODUCE HOSTILITY
BETWEEN INMATE AND GUARD, OR INMATE AND INMATE, WHICH WILL EVENTUALLY
LEAD TO PRISON DISRUPTION; OR THAT CROSS-EXAMINATION OF A GUARD BY AN
INMATE WOULD THREATEN THE GUARD'S TRADITIONAL ROLE OF ABSOLUTE
AUTHORITY; OR THAT CROSS-EXAMINATION WOULD SOMEHOW WEAKEN THE
DISCIPLINARY PROCESS AS A VEHICLE FOR REHABILITATION. 

I DO NOT BELIEVE THAT THESE GENERALIZED, SPECULATIVE, AND
UNSUPPORTED THEORIES PROVIDE ANYTHING CLOSE TO AN ADEQUATE BASIS FOR
DENYING THE ACCUSED INMATE THE RIGHT TO CROSS-EXAMINE HIS ACCUSERS. 
THE STATE'S ARGUMENTS IMMEDIATELY LOSE MOST OF THEIR POTENTIAL FORCE
WHEN IT IS OBSERVED THAT NEBRASKA ALREADY PERMITS INMATES TO QUESTION
THE CORRECTIONAL OFFICER WHO IS THE CHARGING PARTY WITH RESPECT TO THE
CHARGES.  SEE ANTE, AT 567 N.17.  MOREOVER, BY FAR THE GREATER WEIGHT
OF CORRECTIONAL AUTHORITY IS THAT GREATER PROCEDURAL FAIRNESS IN
DISCIPLINARY PROCEEDINGS, INCLUDING PERMITTING CONFRONTATION AND CROSS
EXAMINATION, WOULD ENHANCE RATHER THAN IMPAIR THE DISCIPLINARY PROCESS
AS A REHABILITATIVE TOOL.  PRESIDENT'S COMMISSION ON LAW ENFORCEMENT
AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: CORRECTIONS 13,
82 - 83 (1967); ABA SURVEY 20 - 22; SEE LANDMAN V. ROYSTER, 333 F.
SUPP., AT 635. 

"TIME HAS PROVED . . . THAT BLIND DEFERENCE TO CORRECTIONAL
OFFICIALS DOES NO REAL SERVICE TO THEM.  JUDICAL CONCERN WITH
PROCEDURAL REGULARITY HAS A DIRECT BEARING UPON THE MAINTENANCE OF
INSTITUTIONAL ORDER; THE ORDERLY CARE WITH WHICH DECISIONS ARE MADE BY
THE PRISON AUTHORITY IS INTIMATELY RELATED TO THE LEVEL OF RESPECT WITH
WHICH PRISONERS REGARD THAT AUTHORITY.  THERE IS NOTHING MORE CORROSIVE
TO THE FABRIC OF A PUBLIC INSTITUTION SUCH AS A PRISON THAN A FEELING
AMONG THOSE WHOM IT CONTAINS THAT THEY ARE BEING TREATED UNFAIRLY." 
PALMIGIANO V. BAXTER, 487 F.2D 1280, 1283 (CA1 1973).  AS THE CHIEF
JUSTICE NOTED IN MORRISSEY V. BREWER, 408 U.S., AT 484, "FAIR TREATMENT
. . . WILL ENHANCE THE CHANCE OF REHABILITATION BY AVOIDING REACTIONS
TO ARBITRARINESS." 

SIGNIFICANTLY, A SUBSTANTIAL MAJORITY OF THE STATES DO PERMIT
CONFRONTATION AND CROSS-EXAMINATION IN PRISON DISCIPLINARY PROCEEDINGS,
AND THEIR EXPERIENCE SIMPLY DOES NOT BEAR OUT THE SPECULATIVE FEARS OF
NEBRASKA AUTHORITIES.  SEE ABA SURVEY 21 - 22.  THE VAST MAJORITY OF
THESE STATES HAVE OBSERVED "NO NOTICEABLE EFFECT ON PRISON SECURITY OR
SAFETY.  FURTHERMORE, THERE WAS GENERAL AGREEMENT THAT THE QUALITY OF
THE HEARINGS HAD BEEN 'UPGRADED' AND THAT SOME OF THE INMATE FEELINGS
OF POWERLESSNESS AND FRUSTRATION HAD BEEN RELIEVED."  ID., AT 21.  THE
ONLY REPORTED COMPLAINTS HAVE BEEN, NOT THE THEORETICAL PROBLEMS
SUGGESTED BY PETITIONERS, BUT THAT THESE PROCEDURES ARE TIME CONSUMING
AND HAVE SLOWED DOWN THE DISCIPLINARY PROCESS TO SOME EXTENT.  THESE
ARE SMALL COSTS TO BEAR TO ACHIEVE SIGNIFICANT GAINS IN PROCEDURAL
FAIRNESS. 

THUS, IN MY VIEW, WE SHOULD RECOGNIZE THAT THE ACCUSED PRISONER HAS
A CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES,
SUBJECT TO A LIMITED EXCEPTION WHEN NECESSARY TO PROTECT THE IDENTITY
OF A CONFIDENTIAL INMATE INFORMANT.  THIS DOES NOT MEAN THAT I WOULD
NOT PERMIT THE DISCIPLINARY BOARD TO RELY ON WRITTEN REPORTS CONCERNING
THE CHARGES AGAINST A PRISONER.  RATHER, I WOULD THINK THIS
CONSTITUTIONAL RIGHT SUFFICIENTLY PROTECTED IF THE ACCUSED HAD THE
POWER TO COMPEL THE ATTENDANCE OF AN ADVERSE WITNESS SO THAT HIS STORY
CAN BE TESTED BY CROSS-EXAMINATION.  SEE CLUTCHETTE V. PROCUNIER, 487
F.2D, AT 819; PALMINGIANO V. BAXTER, SUPRA, AT 1290.  AGAIN, WHENEVER
THE RIGHT TO CONFRONT AN ADVERSE WITNESS IS DENIED AN ACCUSED, I WOULD
REQUIRE THAT THIS DENIAL AND THE REASONS FOR IT BE NOTED IN WRITING IN
THE RECORD OF THE PROCEEDING.  I WOULD ALSO HOLD THAT WHERE IT IS FOUND
NECESSARY TO RESTRICT THE INMATE'S RIGHT OF CONFRONTATION, THE
DISCIPLINARY BOARD HAS THE CONSTITUTIONAL OBLIGATION TO CALL THE
WITNESS BEFORE IT IN CAMERA AND ITSELF PROBE HIS CREDIBILITY, RATHER
THAN ACCEPTING THE UNCHALLENGED AND OTHERWISE UNCHALLENGABLE WORD OF
THE INFORMER.  SEE IBID.; CF. BIRZON V. KING, 469 F.2D 1241 (CA2
1972).  AND, AGAIN, I WOULD MAKE IT CLEAR THAT THE UNWARRANTED DENIAL
OF THE RIGHT TO CONFRONT ADVERSE WITNESSES, AFTER GIVING DUE DEFERENCE
TO THE JUDGMENT OF PRISON OFFICIALS AND THEIR REASONABLE CONCERNS WITH
INMATE SAFETY AND INSTITUTIONAL ORDER, WOULD BE CAUSE FOR JUDICIAL
INTERVENTION. 

THE COURT NEXT TURNS TO THE QUESTION OF AN ACCUSED INMATE'S RIGHT TO
COUNSEL, AND QUOTES A LONG PASSAGE FROM OUR DECISION LAST TERM IN
GAGNON V. SCARPELLI, 411 U.S. 778 (1973), IN SUPPORT OF ITS CONCLUSION
THAT APPOINTED COUNSEL NEED NOT BE PROVIDED AND RETAINED COUNSEL NEED
NOT BE PERMITTED IN PRISON DISCIPLINARY PROCEEDINGS AT THIS TIME.  THE
COURT SEEMINGLY FORGETS THAT THE HOLDING OF SCARPELLI WAS THAT
FUNDAMENTAL FAIRNESS REQUIRES THE APPOINTMENT OF COUNSEL IN SOME
PROBATION REVOCATION OR PAROLE REVOCATION PROCEEDINGS AND OVERLOOKS ITS
CONCLUSION THAT 

"THE EFFECTIVENESS OF THE RIGHTS GUARANTEED BY MORRISSEY MAY IN SOME
CIRCUMSTANCES DEPEND ON THE USE OF SKILLS WHICH THE PROBATIONER OR
PAROLEE IS UNLIKELY TO POSSESS.  DESPITE THE INFORMAL NATURE OF THE
PROCEEDINGS AND THE ABSENCE OF TECHNICAL RULES OF PROCEDURE OR
EVIDENCE, THE UNSKILLED OR UNEDUCATED PROBATIONER OR PAROLEE MAY WELL
HAVE DIFFICULTY IN PRESENTING HIS VERSION OF A DISPUTED SET OF FACTS
WHERE THE PRESENTATION REQUIRES THE EXAMINING OR CROSS-EXAMINING OF
WITNESSES OR THE OFFERING OR DISSECTING OF COMPLEX DOCUMENTARY
EVIDENCE."  ID., AT 786 - 787.  PLAINLY, THESE OBSERVATIONS ARE AT
LEAST AS APPROPRIATE IN THE CONTEXT OF PRISON DISCIPLINARY
PROCEEDINGS.  WE NOTED IN JOHNSON V. AVERY, 393 U.S. 483, 487 (1969),
THAT "PENITENTIARIES INCLUDE AMONG THEIR INMATES A HIGH PERCENTAGE OF
PERSONS WHO ARE TOTALLY OR FUNCTIONALLY ILLITERATE, WHOSE EDUCATIONAL
ATTAINMENTS ARE SLIGHT, AND WHOSE INTELLIGENCE IS LIMITED"; THE SAME
CONSIDERATIONS PROVIDE THE MOTIVATING FORCE FOR THE HOLDING TODAY IN
PART VIII OF THE COURT'S OPINION.     IN VIEW OF THESE CONSIDERATIONS,
I THINK IT IS CLEAR THAT, AT LEAST IN THOSE SERIOUS DISCIPLINARY CASES
MEETING THE SCARPELLI REQUIREMENTS, SEE 411 U.S., AT 790, ANY INMATE
WHO SEEKS ASSISTANCE IN THE PREPARATION OF HIS DEFENSE MUST BE
CONSTITUTIONALLY ENTITLED TO HAVE IT.  BUT, ALTHOUGH FOR ME THE
QUESTION IS FRAUGHT WITH GREAT DIFFICULTY, I AGREE WITH THE COURT THAT
IT WOULD BE INAPPROPRIATE AT THIS TIME TO HOLD THAT THIS ASSISTANCE
MUST BE PROVIDED BY AN APPOINTED MEMBER OF THE BAR.  /2/  THERE IS
CONSIDERABLE FORCE TO THE ARGUMENT THAT COUNSEL ON EITHER SIDE WOULD BE
OUT OF PLACE IN THESE DISCIPLINARY PROCEEDINGS, AND THE PRACTICAL
PROBLEMS OF PROVIDING APPOINTED COUNSEL IN THESE PROCEEDINGS MAY WELL
BE INSURMOUNTABLE.  BUT THE CONTROLLING CONSIDERATION FOR ME IS MY
BELIEF THAT, IN LIGHT OF THE TYPES OF QUESTIONS LIKELY TO ARISE IN
PRISON DISCIPLINE CASES, COUNSEL SUBSTITUTES SHOULD BE ABLE TO PROVIDE
SUFFICIENTLY EFFECTIVE ASSISTANCE TO SATISFY DUE PROCESS.  AT LEAST 41
STATES ALREADY PROVIDE SUCH COUNSEL SUBSTITUTES, ABA SURVEY 22,
REFLECTING THE NEARLY UNIVERSAL RECOGNITION THAT FOR MOST INMATES, THIS
ASSISTANCE WITH THE PREPARATION OF A DEFENSE, PARTICULARLY AS
DISCIPLINARY HEARINGS BECOME MORE COMPLEX, IS ABSOLUTELY ESSENTIAL. 
THUS, I WOULD HOLD THAT ANY PRISONER IS CONSTITUTIONALLY ENTITLED TO
THE ASSISTANCE OF A COMPETENT FELLOW INMATE OR CORRECTIONAL STAFF
MEMBER--OR, IF THE INSTITUTION CHOOSES, SUCH OTHER ALTERNATIVES AS THE
ASSISTANCE OF LAW STUDENTS--TO AID IN THE PREPARATION OF HIS DEFENSE. 

FINALLY, THE COURT ADDRESSES THE QUESTION OF THE NEED FOR AN
IMPARTIAL TRIBUNAL TO HEAR THESE PRISON DISCIPLINARY CASES.  WE HAVE
RECOGNIZED THAT AN IMPARTIAL DECISIONMAKER IS A FUNDAMENTAL REQUIREMENT
OF DUE PROCESS IN A VARIETY OF RELEVANT SITUATIONS, SEE, E.G.,
MORRISSEY V. BREWER, 408 U.S., AT 485 - 486; GOLDBERG V. KELLY, 397
U.S., AT 271, AND I WOULD HOLD THIS REQUIREMENT FULLY APPLICABLE HERE. 
BUT IN MY VIEW THERE IS NO CONSTITUTIONAL IMPEDIMENT TO A DISCIPLINARY
BOARD COMPOSED OF RESPONSIBLE PRISON OFFICIALS LIKE THOSE ON THE
ADJUSTMENT COMMITTEE HERE.  WHILE IT MIGHT WELL BE DESIREABLE TO HAVE
PERSONS FROM OUTSIDE THE PRISON SYSTEM SITTING ON DISCIPLINARY PANELS,
SO AS TO ELIMINATE ANY POSSIBILITY THAT SUBTLE INSTITUTIONAL PRESSURES
MAY AFFECT THE OUTCOME OF DISCIPLINARY CASES AND TO AVOID ANY
APPEARANCE OF UNFAIRNESS, IN MY VIEW DUE PROCESS IS SATISFIED AS LONG
AS NO MEMBER OF THE DISCIPLINARY BOARD HAS BEEN INVOLVED IN THE
INVESTIGATION OR PROSECUTION OF THE PARTICULAR CASE, OR HAS HAD ANY
OTHER FORM OF PERSONAL INVOLVEMEMT IN THE CASE.  SEE CLUTCHETTE V.
PROCUNIER, 497 F.2D, AT 820; UNITED STATES EX REL. MILLER V. TWOMEY,
497 F.2D 701, 716, 718 (CA7 1973); LANDMAN V. ROYSTER, 333 F. SUPP., AT
653.  I FIND IT IMPOSSIBLE TO DETERMINE ON THE PRESENT RECORD WHETHER
THIS STANDARD OF IMPARTIALITY HAS BEEN MET, AND I WOULD LEAVE THIS
QUESTION OPEN FOR THE DISTRICT COURT'S CONSIDERATION ON REMAND. 

THUS, IT IS MY CONCLUSION THAT THE COURT OF APPEALS WAS
SUBSTANTIALLY CORRECT IN ITS HOLDING THAT THE MIMIMUM DUE PROCESS
PROCEDURAL REQUIREMENTS OF MORRISSEY V. BREWER ARE APPLICABLE IN THE
CONTEXT OF PRISON DISCIPLINARY PROCEEDINGS.  TO THE EXTENT THAT THE
COURT IS WILLING TO TOLERATE REDUCED PROCEDURAL SAFEGUARDS FOR ACCUSED
INMATE FACING SERIOUS PUNISHMENT WHICH DO NOT MEET THE STANDARDS SET
OUT IN THEIS OPINION, I RESPECTFULLY DISSENT. 

/1/  THE COURT DEFINES THE LIBERTY INTEREST AT STAKE HERE IN TERMS
OF THE FORFEITURE OF GOOD TIME AS A DISCIPLINARY MEASURE.  SINCE IT IS
ONLY LOSS OF GOOD TIME THAT IS AT ISSUE IN THIS CASE, THIS DEFINITION
IS OF COURSE QUITE APPROPRIATE HERE.  BUT LEST ANYONE BE DECEIVED BY
THE NARROWNESS OF THIS DEFINTION, I THINK IT IMPORTANT TO NOTE THAT
THIS IS OBVIOUSLY NOT THE ONLY LIBERTY INTEREST INVOLVED IN PRISON
DISCIPLINARY PROCEEDINGS WHICH IS PROTECTED BY DUE PROCESS.  INDEED,
THE COURT LATER OBSERVES THAT DUE PROCESS REQUIRES THE SAME PROCEDURAL
PROTECTION WHEN SOLITARY CONFINEMENT IS AT ISSUE.  ANTE, AT 571 - 572,
N.19.  THE COURT APPARENTLY HOLDS THAT INMATES'"LIBERTY" IS PROTECTED
BY DUE PROCESS WHENEVER "A MAJOR CHANGE IN THE CONDITIONS OF
CONFINEMENT"  IS IMPOSED AS PUNISHMENT FOR MISCONDUCT.  IBID.  I
AGREE.  SEE PALMIGIANO V. BAXTER, 487 F.2D 1280, 1284 (CA1 1973). 

/2/  ON THE RECORD IN THIS CASE, NO QUESTION IS PRESENTED WITH
RESPECT TO THE PRESENCE OF RETAINED COUNSEL AT PRISON DISCIPLINARY
PROCEEDINGS, AND I THINK IT INAPPROPRIATE FOR THE COURT TO REACH OUT
AND DECIDE THIS IMPORTANT ISSUE WITHOUT THE BENEFIT OF A CONCRETE
FACTUAL SITUATION IN WHICH THE ISUE ARISES.  I WOULD RESERVE FOR
ANOTHER DAY THE QUESTIONS WHETHER THE CONSTITUTION REQUIRES THAT AN
INMATE ABLE TO AFFORD COUNSEL BE PERMITTED TO BRING COUNSEL INTO THE
DISCIPLINARY HEARING, OR WHETHER THE CONSTITUTION ALLOWS A STATE TO
PERMIT THE PRESENCE OF RETAINED COUNSEL WHEN COUNSEL IS NOT APPOINTED
FOR INDIGENTS.  CF. GAGNON V. SCARPELLI, 411 U.S. 778, 783 N.6 (1973). 

MR. JUSTICE DOUGLAS, DISSENTING IN PART, CONCURRING IN THE RESULT IN
PART. 

THE MAJORITY CONCEDES THAT PRISONERS ARE PERSONS WITHIN THE MEANING
OF THE FOURTEENTH AMEMDMENT, REQUIRING THE APPLICATION OF CERTAIN DUE
PROCESS SAFEGUARDS TO PRISON DISCIPLINARY PROCEEDINGS, IF THOSE
PROCEEDINGS HAVE THE POTENTIAL OF RESULTING IN THE PRISONER'S LOSS OF
GOOD TIME OR PLACEMENT IN SOLITARY CONFINEMENT, ANTE, AT 571 - 572,
N.19.  BUT THE MAJORITY FINDS THAT PRISONERS CAN BE DENIED THE RIGHT TO
CROSS-EXAMINE ADVERSE WITNESSES AGAINST THEM, AND SUSTAINS THE
DISCIPLINARY BOARD'S RIGHT TO RELY ON SECRET EVIDENCE PROVIDED BY
SECRET ACCUSERS IN REACHING ITS DECISION, ON THE GROUND THAT ONLY THE
PRISON ADMINISTRATION CAN DECIDE WHETHER IN A PARTICULAR CASE THE
DANGER OF RETRIBUTION REQUIRES SHIELDING A PARTICULAR WITNESS'
IDENTITY.  AND IN FURTHER DEFERENCE TO PRISON OFFICIALS, THE MAJORITY,
WHILE HOLDING THAT THE PRISONER MUST USUALLY BE ACCORDED THE RIGHT TO
PRESENT WITNESSES ON HIS OWN BEHALF, APPEARS TO LEAVE THE PRISONER NO
REMEDY AGAINST A PRISON BOARD WHICH UNDULY RESTRICTS THAT RIGHT IN THE
NAME OF "INSTITUTIONAL SAFETY."  RESPONDENT THUS RECEIVES THE BENEFIT
OF SOME OF THE CONSTITUTIONAL RIGHTS OF DUE PROCESS THAT THE FOURTEENTH
EXTENDS TO ALL "PERSONS."  IN MY VIEW, HOWEVER, THE THREAT OF ANY
SUBSTANTIAL DEPRIVATION OF LIBERTY WITHIN THE PRISON CONFINES, SUCH AS
SOLITARY CONFINEMENT, IS A LOSS WHICH CAN BE IMPOSED UPON RESPONDENT
PRISONER AND HIS CLASS ONLY AFTER A FULL HEARING WITH ALL DUE PROCESS
SAFEGUARDS. 

        I 

I AGREE THAT SOLITARY CONFINEMENT IS A DEPRIVATION REQUIRING A DUE
PROCESS HEARING FOR ITS IMPOSITION.  DUE PROCESS RIGHTS ARE REQUIRED
WHENEVER AN INDIVIDUAL RISKS CONDEMNATION TO A "'GRIEVOUS LOSS,'"
MORRISSEY V. BREWER, 408 U.S. 471, 481; GOLDBERG V. KELLY, 397 U.S.
254, 263; JOINT ANTI-FASCIST REFUGEE COMM. V. MCGARTH, 341 U.S. 123,
168 (FRANKFURTER, J., CONCURRING).  THUS DUE PROCESS IS REQUIRED BEFORE
THE TERMINATION OF WELFARE BENEFITS, GOLDBERG, SUPRA; REVOCATION OF
PAROLE OR PROBATION, MORRISSEY, SUPRA, AND GAGNON V. SCARPELLI, 411
U.S. 778; REVOCATION OF A DRIVER'S LICENSE, BELL V. BURSON, 402 U.S.
535; AND ATTACHMENT OF WAGES, SNIADACH V. FAMILY FINANCE CORP., 395
U.S. 337.  EVERY PRISONER'S LIBERTY IS, OF COURSE, CIRCUMSCRIBED BY THE
VERY FACT OF HIS CONFINEMENT, BUT HIS INTEREST IN THE LIMITED LIBERTY
LEFT TO HIM IS THEN ONLY THE MORE SUBSTANTIAL.  CONVICTION OF A CRIME
DOES NOT RENDER ONE A NONPERSON WHOSE RIGHTS ARE SUBJECT TO THE WHIM OF
THE PRISON ADMINISTRATION, AND THEREFORE THE IMPOSITION OF ANY SERIOUS
PUNISHMENT WHITIN THE PRISON SYSTEM REQUIRES PROCEDURAL SAFEGUARDS.  OF
COURSE, A HEARING NEED NOT BE HELD BEFORE A PRISONER IS SUBJECTED TO
SOME MINOR DEPRIVATION, SUCH AS AN EVENING'S LOSS OF TELEVISION
PRIVILEGES.  PLACEMENT IN SOLITARY CONFINEMENT, HOWEVER, IS NOT IN THAT
CATEGORY.  PRISONERS ARE SOMETIMES PLACED IN SOLITARY OR PUNITIVE
SEGREGATION FOR MONTHS OR EVEN YEARS.  BYRANT V. HARRIS, 465 F.2D 365;
SOSTRE V. MCGINNIS, 442 F.2D 178; ADAMS V. CARLSON, 368 F. SUPP. 1050;
LANDMAN V. ROYSTER, 333 F. SUPP. 621, AND SUCH CONFINEMENT INEVITABLY
RESULTS IN DEPRIVING THE PRISONER OF OTHER PRIVILEGES AS WELL AS THOSE
WHICH ARE ORDINARILY AVAILABLE TO THE GENERAL PRISON POPULATION, LAREAU
V. MACDOUGALL, 473 F.2D 974; WRIGHT V. MCMANN, 387 F.2D 519.  MOREOVER,
THE NOTATION IN A PRISONER'S FILE THAT HE HAS BEEN PLACED IN SUCH
PUNITIVE CONFINEMENT MAY HAVE A SERIOUS ADVERSE EFFECT ON HIS
ELIGIBILITY FOR PAROLE, A RISK WHICH EMPHASIZES THE NEED FOR PRIOR DUE
PROCESS SAFEGUARDS, CLUTCHETTE V. PROCUNIER, 497 F.2D 809. 

        II 

I WOULD START WITH THE PRESUMPTION THAT CROSS-EXAMINATION OF ADVERSE
WITNESSES AND CONFRONTATION OF ONE'S ACCUSERS ARE ESSENTIAL RIGHTS
WHICH OUGHT ALWAYS TO BE AVAILABLE ABSENT ANY SPECIAL OVERRIDING
CONSIDERATIONS.  IN MORRISSEY V. BREWER, SUPRA, WE HELD THAT THE RIGHT
TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES IS A MINIMUM
REQUIREMENT OF DUE PROCESS WHICH MUST BE ACCORDED PAROLEE FACING
REVOCATION OF THEIR PAROLE "UNLESS THE HEARING OFFICER SPECIFICALLY
FINDS GOOD CAUSE FOR NOT ALLOWING CONFRONTATION."  408 U.S., AT 489. 
"BECAUSE MOST DISCIPLINARY CASES WILL TURN ON ISSUES OF FACT . . . THE
RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES IS ESSENTIAL."  LANDMAN
V. ROYSTER, SUPRA, AT 653. 

     "CERTAIN PRINCIPLES HAVE REMAINED RELATIVELY IMMUTABLE IN OUR

  JURISPRUDENCE.  ONE OF THESE IS THAT WHERE GOVERNMENTAL ACTION

  SERIOUSLY INJURES AN INDIVIDUAL, AND THE REASONABLENESS OF THE

  ACTION DEPENDS ON FACT FINDINGS, THE EVIDENCE USED TO PROVE THE

  GOVERNMENT'S CASE MUST BE DISCLOSED TO THE INDIVIDUAL SO THAT HE

HAS AN OPPORTUNITY TO SHOW THAT IT IS UNTRUE.  WHILE THIS IS

  IMPORTANT IN THE CASE OF DOCUMENTARY EVIDENCE, IT IS EVEN MORE

  IMPORTANT WHERE THE EVIDENCE CONSISTS OF THE TESTIMONY OF

  INDIVIDUALS WHOSE MEMORY MIGHT BE FAULTY OR WHO, IN FACT, MIGHT

  BE PERJURERS OR PERSONS MOTIVATED BE MALICE, VINDICTIVENESS,

  INTOLERANCE, PREJUDICE, OR JEALOUSY.  WE HAVE FORMALIZED THESE

  PROTECTIONS IN THE REQUIREMENTS OF CONFRONTATION AND

  CROSS-EXAMINATION.  . . . THIS COURT HAS BEEN ZEALOUS TO PROTECT

  THESE RIGHTS FROM EROSION.  IT HAS SPOKEN OUT NOT ONLY IN

  CRIMINAL CASES . . . BUT ALSO IN ALL TYPES OF CASES WHERE

  ADMINISTRATIVE AND REGULATORY ACTIONS WERE UNDER SCRUTINY." 

  GREENE V. MCELROY, 360 U.S. 474, 496 - 497. 

THE DECISION AS TO WHETHER AN INMATE SHOULD BE ALLOWED TO CONFRONT HIS
ACCUSERS SHOULD NOT BE LEFT TO THE UNCHECKED AND UNREVIEWABLE
DISCRETION OF THE PRISON DISCIPLINARY BOARD.  THE ARGUMENT OFFERED FOR
THAT RESULT IS THAT THE DANGER OF VIOLENT RESPONSE BY THE INMATE
AGAINST HIS ACCUSERS IS GREAT, AND THAT ONLY THE PRISON ADMINISTRATORS
ARE IN A POSITION TO WEIGH THE NECESSITY OF SECRECY IN EACH CASE.  BUT
IT IS PRECISELY THIS UNCHECKED POWER OF PRISON ADMINISTRATORS WHICH IS
THE PROBLEM THAT DUE PROCESS SAFEGUARDS ARE REQUIRED TO CURE.  "NOT
ONLY THE PRINCIPLE OF JUDICIAL REVIEW, BUT THE WHOLE SCHEME OF AMERICAN
GOVERNMENT, REFLECTS AN INSTITUTIONALIZED MISTRUST OF ANY SUCH
UNCHECKED AND UNBALANCED POWER OVER ESSENTIAL LIBERTIES.  THAT MISTRUST
DOES NOT DEPEND ON AN ASSUMPTION OF INVERTERATE VENALITY OR
INCOMPETENCE ON THE PART OF MEN IN POWER . . ."  COVINGTON V. HARRIS,
136 U.S. APP. D.C. 35, 39, 419 F.2D 617, 621.  LIKEWISE THE PRISONER
SHOULD HAVE THE RIGHT TO CROSS-EXAMINE ADVERSE WITNESSES WHO TESTIFY AT
THE HEARING.  OPPOSED IS THE VIEW THAT THE RIGHT MAY SOMEHOW UNDERMINE
THE PROPER ADMINISTRATION OF THE PRISON, ESPECIALLY IF ACCUSED INMATES
ARE ALLOWED TO PUT QUESTIONS TO THEIR GUARDS.  THAT, HOWEVER, IS A VIEW
OF PRISON ADMINISTRATION WHICH IS OUTMODED AND INDEED ANTI
REHABILITATIVE, FOR IT SUPPORTS THE PREVAILING PATTERN OF HOSTILITY
BETWEEN INMATE AND PERSONNEL WHICH GENERATES AN "INMATES' CODE"  OF
NONCOOPERATION, THEREBY PREVENTING THE RAPPORT NECESSARY FOR A
SUCCESSFUL REHABILITATIVE PROGRAM.  THE GOAL IS TO REINTEGRATE INMATES
INTO A SOCIETY WHERE MEN ARE SUPPOSED TO BE TREATED FAIRLY BY THE
GOVERNMENT, NOT ARBITRARILY.  THE OPPOSED PROCEDURE WILL BE
COUNTERPRODUCTIVE.  A REPORT PREPARED FOR THE JOINT COMMISSION ON
CORRECTIONAL MANPOWER AND TRAINING HAS POINTED OUT THAT THE "BASIC
HURDLE (TO REINTEGRATION) IS THE CONCEPT OF A PRISONER AS A NONPERSON
AND THE JAILER AS AN ABSOLUTE MONARCH.  THE LEGAL STRATEGY TO SURMOUNT
THIS HURDLE IS TO ADOPT RULES . . .. MAXIMIZING THE PRISONER'S FREEDOM,
DIGNITY, AND RESPONSIBILITY.  MORE PARTICULARLY, THE LAW MUST RESPOND
TO THE SUBSTANTIVE AND PROCEDURAL CLAIMS THAT PRISONERS MAY HAVE . . .
."  F. COHEN, THE LEGAL CHALLENGE TO CORRECTIONS 65 (1969).  WE
RECOGNIZED THIS TRUTH IN MORRISSEY, WHERE WE NOTED THAT SOCIETY HAS AN
INTEREST IN TREATING THE PAROLEE FAIRLY IN PART BECAUSE "FAIR TREATMENT
IN PAROLE REVOCATIONS WILL ENHANCE THE CHANCE OF REHABILITATION BY
AVOIDING REACTIONS TO ARBITRARINESS."  408 U.S., AT 484.  THE SAME
PRINCIPLE APPLIES TO INMATES AS WELL. 

THE MAJORITY ALSO HOLDS THAT "THE INMATE FACING DISCIPLINARY
PROCEEDINGS SHOULD BE ALLOWED TO CALL WITNESSES AND PRESENT DOCUMENTARY
EVIDENCE IN HIS DEFENSE WHEN PERMITTING HIM TO DO SO WILL NOT BE UNDULY
HAZARDOUS TO INSTITUTIONAL SAFETY OR CORRECTIONAL GOALS,"  ANTE, AT
566.  YET, WHILE CONCEDING THAT "THE RIGHT TO PRESENT EVIDENCE IS BASIC
TO A FAIR HEARING," IBID., THE COURT AGAIN CHOOSES TO LEAVE THE MATTER
TO THE DISCRETION OF PRISON OFFICIALS, WHO ARE NOT EVEN REQUIRED TO
STATE THEIR REASONS FOR REFUSING A PRISONER HIS RIGHT TO CALL A
WITNESS, ALTHOUGH THE COURT FINDS THAT SUCH A STATEMENT OF REASONS
WOULD BE "USEFUL."  IBID.  THUS, ALTHOUGH THE COURT ACKNOWLEDGES THE
PRISONER'S RIGHT, IT APPEARS TO LEAVE HIM WITH NO MEANS OF ENFORCING
IT.     AS THE COURT ITSELF AGREES IN HOLDING THAT THE DISCIPLINARY
BOARD MUST PROVIDE A STATEMENT OF REASONS FOR ITS ULTIMATE
DETERMINATION ON THE MERITS, ANTE, AT 564 - 565, SUCH A WRITTEN
STATEMENT IS CRUCIAL NOT ONLY TO PROVIDE A BASIS FOR REVIEW, BUT OT
ENSURE THAT THE BOARD "WILL ACT FAIRLY."  ANTE, AT 565.  OF COURSE EVEN
IN A CRIMINAL TRIAL THE RIGHT TO PRESENT ONE'S OWN WITNESSES MAY BE
LIMITED BY THE TRIAL JUDGE'S FINDING THAT THE EVIDENCE OFFERED IS
IRRELEVANT, INCOMPETENT, OR NEEDLESSLY REPETITIOUS, AND CERTAINLY THE
SAME RESTRICTIONS MAY APPLY IN THE PRISON SETTING.  BUT WHEN THE JUDGE
MAKES SUCH A RULING IT IS A MATTER IN THE RECORD WHICH MAY BE
CHALLENGED ON APPEAL.  NEBRASKA MAY NOT PROVIDE ANY CHANNEL FOR
ADMINISTRATIVE APPEAL OF THE BOARD'S RULING, BUT BECAUSE "(THE
FUNDAMENTAL REQUISITE OF DUE PROCESS OF LAW IS THE OPPORTUNITY TO BE
HEARD.'"  GOLDBERG V. KELLY, 397 U.S. 254, 267, SOME POSSIBILITY MUST
REMAIN OPEN FOR JUDICIAL OVERSIGHT.  HERE AS WITH THE RIGHTS OF
CONFRONTATION AND CROSS-EXAMINATION, I MUST DISSENT FRON THE COURT'S
HOLDING THAT THE PRISONER'S EXERCISE OF A FUNDAMENTAL CONSTITUTIONAL
RIGHT SHOULD BE LEFT WITHIN THE UNREVIEWABLE DISCRETION OF PRISON
AUTHORITIES. 

OUR PRISONS ARE JUST NOW BEGINNING TO WORK THEIR WAY OUT OF THEIR
PUNITIVE HERITAGE.  THE FIRST AMERICAN PENITENTIARY WAS ESTABLISHED IN
PHILADELPHIA IN 1790; IT CONTAINED 24 INDIVIDUAL CELLS FOR THE SOLITARY
CONFINEMENT OF HARDENED OFFENDERS.  P. TAPPAN, CRIME, JUSTICE AND
CORRECTION 605 - 606 (1960).  UNDER THIS "PENNSYLVANIA SYSTEM" THE
PRISONER WAS CONTINUOUSLY CONFINED IN SOLITARY AND ALL COMMUNICATION
WAS FORBIDDEN, WITH THE EXCEPTION OF RELIGIOUS ADVISORS AND OFFICIAL
VISITORS.  M. WILSON, THE CRIME OF PUNISHMENT 219 - 220 (1931E.  NEW
YORK EXPERIMENTED WITH THIS APPROACH BUT FOUND IT TO SEVERE, AND
ADOPTED INSTEAD A COMPROMISE SOLUTION KNOWN AS THE "AUBURN" OR "SILENT"
SYSTEM, IN WHICH INMATES WERE ALLOWED TO WORK IN SHOPS WITH OTHERS
DURING THE DAY, ALTHOUGH UNDER A STRICT RULE OF SILENCE, AND THEN
RETURNED TO SOLITARY CONFINEMENT AT NIGHT.  PRISONERS WERE MARCHED
AROUND IN MILITARY LOCK-STEP WITH THEIR EYES CAST ON THE GROUND, AND
THE VIOLATIONS OF ANY RULES RESULTED IN THE IMMEDIATE INFLICTION OF
CORPORAL PUNISHMENT BY THE GUARDS.  TAPPAN, SUPRA, AT 609 - 610. 
ALTHOUGH THE HARSH TREATMENT PRODUCED AN ORDERLY PRISON, IT CAME UNDER
CRITICISM BECAUSE OF ITS INHUMANITY, WITH PARTICULAR EMPHASIS ON THE
UNFETTERED DISCRETION OF THE GUARDS TO IMPOSE PUNISHMENT ON THE BASIS
OF VAGUE CHARGES THAT WERE NEVER SUBJECTED TO DETACHED OR IMPARITIAL
EVALUATION.  INTRODUCTORY REPORT TO THE CODE OF REFORM AND PRISON
DISCIPLINE 8, PRINTED IN E. LIVINGSTON, A SYSTEM OF PENAL LAW FOR THE
UNITED STATES (1828). 

WE HAVE MADE PROGRESS SINCE THEN BUT THE OLD TRADITION STILL
LINGERS.  JUST RECENTLY AN ENTIRE PRISON SYSTEM OF ONE STATE WAS HELD
SO INHUMANE AS TO BE A VIOLATION OF THE EIGHTH AMENDMENT BAR ON CRUEL
AND UNUSUAL PUNISHMENT.  HOLT V. SARVER, 309 F. SUPP. 362 "ED ARK.
1970), AFF'D, 442 F.2D 304 (CA8 1971).  THE LESSON TO BE LEARNED IS
THAT COURTS CANNOT BLITHELY DEFER TO THE SUPPOSED EXPERTISE OF PRISON
OFFICIALS WHEN IT COMES TO THE CONSTITUTIONAL RIGHTS OF INMATES. 

     "PRISONERS OFTEN HAVE THEIR PRIVILEGES REVOKED, ARE DENIED THE

  RIGHT OF ACCESS TO COUNSEL, SIT IN SOLITARY OR MAXIMUM SECURITY

  OR LOSE ACCRUED 'GOOD TIME' ON THE BASIS OF A SINGLE, UNREVIEWED

  REPORT OF A GUARD.  WHEN THE COURTS DEFER TO ADMINISTRATIVE

  DISCRETION, IT IS THIS GUARD TO WHOM THEY DELEGATE THE FINAL WORD

  ON REASONABLE PRISON PRACTICES.  THIS IS THE CENTRAL EVIL IN

  PRISON . . . THE UNREVIEWED ADMINISTRATIVE DISCRETION GRANTED TO

  THE POORLY TRAINED PERSONNEL WHO DEAL DIRECTLY WITH PRISONERS." 

  HIRSCHKOP & MILLEMANN, THE UNCONSTITUTIONALLY OF PRISON LIFE, 55

  VA. L. REV. 795, 811 - 812 (1969). 

THE PRISONER'S CONSTITUTIONAL RIGHT OF CONFRONTATION SHOULD NOT YEILD
TO THE SO-CALLED EXPERTISE OF PRISON OFFICIALS MORT THAN IS NECESSARY. 
THE CONCERNS OF PRISON OFFICIALS IN MAINTAINING THE SECURITY OF THE
PRISON AND OF PROTECTING THE SAFETY OF THOSE OFFERING EVIDENCE IN
PRISON PROCEEDINGS ARE REAL AND IMPORTANT.  BUT THE SOLUTION CANNOT BE
A WHOLESALE ABROGATION OF THE FUNDAMENTAL CONSTITUTIONAL RIGHT TO
CONFRONT ONE'S ACCUSERS.  THE DANGER OF RETRIBUTION AGAINST THE
INFORMER IS NOT PECULIAR TO THE PRISON SYSTEM; IT EXISTS IN EVERY
ADVERSARY PROCEEDING, AND THE CRIMINAL DEFENDANT OUT ON BAIL DURING HIS
TRIAL MIGHT PRESENT A GREATER THREAT TO THE WITNESS HOSTILE TO HIS
INTERESTS THEN THE PRISON INMATE WHO IS SUBJECT TO CONSTANT
SURVEILLANCE.  SEE PREISER V. RODRIZUEZ, 411 U.S. 475, 492.  IF THERE
IS AN "INMATES' CODE" OF THE PRISON, RESULTING FROM HOSTILITY TO THE
AUTHORITIES, WHICH PROSCRIBES INMATE COOPERATION WITH PRISON OFFICIALS
IN DISCIPLINARY PROCEEDINGS, IT IS PROBABLY BASED UPON THE PERVEIVED
ARBITRARINESS OF THOSE PROCEEDINGS.  THAT ETHIC, WHICH IS CLEARLY ANTI
REHABILITATIVE, MUST BE FERRETED OUT, BUT I DO NOT SEE HOW THE
PETITIONERS CAN RELY ON THEIR CURRENT FAILURE TO CORRECT THIS EVIL FOR
THE PERPETRATION OF AN ADDITIONAL ONE--THE DENIAL OF THE RIGHT OF
CONFRONTATION.  IN SOME CIRCUMSTANCES IT MAY BE THAT AN INFORMER'S
IDENTITY SHOULD BE SHIELDED.  YET IN CRIMINAL TRIALS THE RULE HAS BEEN
THAT IF THE INFORMER'S INFORMATION IS CRUCIAL TO THE DEFENSE, THEN THE
GOVERNMENT MUST CHOOSE BETWEEN REVEALING HIS IDENTITY AND ALLOWING
CONFRONTATION, OR DISMISSING THE CHARGES.  ROVIARO V. UNITED STATES,
353 U.S. 53.  AND IT IS THE COURT, NOT THE PROSECUTOR, WHO DETERMINES
THE DEFENDANT'S NEED FOR THE INFORMATION.  WE SHOULD NO MORE PLACE THE
INMATE'S CONSTITUTIONAL RIGHTS IN THE HANDS OF THE PRISON
ADMINISTRATION'S DISCRETION THAN WE SHOULD PLACE THE DEFENDANT'S RIGHT
IN THE HANDS OF THE PROSECUTOR. 

INSOFAR AS THE COURT AFFIRMS THE JUDGMENT OF THE COURT OF APPEALS I
CONCUR IN THE RESULT.  BUT THE COMMAND OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMEMDMENT COMPELS ME TO DISSENT FROM THAT PART OF THE
JUDGMENT ALLOWING PRISONERS TO CONTINUE TO BE DEPRIVED OF THE RIGHT TO
CONFRONT AND CROSS-EXAMINE THEIR ACCUSERS, AND LEAVING THE RIGHT TO
PRESENT WITNESSES IN THEIR OWN BEHALF IN THE UNREVIEWABLE DISCRETION OF
PRISON OFFICIALS. 

        III 

FINALLY, THE COURT AGAIN, AS EARLIER THIS TERM IS PROCUNIER V.
MARTINEZ, 416 U.S. 396, SIDESTEPS THE ISSUE OF THE FIRST AMENDMENT
RIGHTS OF PRISONERS TO SEND AND RECEIVE MAIL.  I ADHERE TO THE VIEWS
EXPRESSED BY MY BROTHER MARSHALL AND MYSELF EARLIER THIS TERM IN OUR
SEPARATE OPINIONS IN PROCUNIER.  I AGREE, HOWEVER, WITH THE COURT THAT
THE PRISONERS' FIRST AMENDMENT RIGHTS ARE NOT VIOLATED BY INSPECTION OF
THEIR MAIL FOR CONTRABAND, SO LONG AS THE MAIL IS NOT READ AND THE
INSPECTION IS DONE IN THE PRIVACY OF HIS COMMUNICATIONS IS NOT
BREACHED.  SUCH A PROCEDURE SHOULD ADEQUATELY SERVE THE PRISON
ADMINISTRATION'S INTEREST IN ENSURING THAT WEAPONS, DRUGS, AND OTHER
PROHIBITED MATERIALS ARE NOT UNLAWFULLY INTRODUCED INTO THE PRISON,
WHILE PRESERVING THE PRISONER'S FIRST AMENDMENT RIGHT TO COMMUNICATE
WITH OTHERS THROUGH THE MAIL. 
..END :






















UNITED STATES V. MARINE BANCORPORATION, 418 U.S. 602 


       UNITED STATES V. MARINE BANCORPORATION, INC., ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF WASHINGTON

NO. 73 - 38.  ARGUED APRIL 23, 1974--DECIDED JUNE 26, 1974;

           AFFIRMED. 


    THE UNITED STATES BROUGHT THIS CIVIL ANTITRUST ACTION UNDER 7

  OF THE CLAYTON ACT TO CHALLENGE A PROPOSED MERGER BETWEEN TWO

  COMMERCIAL BANKS, WHICH WOULD SUBSTITUTE THE ACQUIRING BANK FOR

  THE ACQUIRED BANK IN SPOKANE, WASH., AND WOULD PERMIT THE FORMER

  FOR THE FIRST TIME DIRECTLY TO PARTICIPATE IN THE SPOKANE

  MARKET.  THE ACQUIRING BANK, APPELLEE NATIONAL BANK OF COMMERCE

  (NBC), IS A LARGE, NATIONALLY CHARTERED BANK BASED IN SEATTLE,

  WASH., AND A WHOLLY OWNED SUBSIDIARY OF APPELLEE MARINE

  BANCORPORATION, INC., AND IN TERMS OF ASSETS, DEPOSITS, AND LOANS

IS THE SECOND LARGEST BANKING ORGANIZATION WITH HEADQUARTERS IN

  WASHINGTON, OPERATING 107 BRANCHES IN THE STATE, INCLUDING 59 IN

  THE SEATTLE METROPOLITIAN AREA AND 31 IN LESSER DEVELOPED EASTERN

  SECTIONS OF THE STATE, BUT NONE OF WHICH IS IN THE SPOKANE

  METROPOLITAN AREA.  THE ACQUIRED OR TARGET BANK, APPELLEE

  WASHINGTON TRUST BANK (WTB), IS A MEDIUM-SIZE, STATE-CHARTERED

  BANK LOCATED IN SPOKANE, WITH SEVEN BRANCHES, SIX IN THE CITY AND

  ONE IN A SUBURB, AND IS THE EIGHTH LARGEST BANK WITH HEADQUARTERS

  IN WASHINGTON AND THE NINTH LARGEST IN THE STATE, CONTROLLING

 17.4% OF THE 46 COMMERCIAL BANKING OFFICES AND HOLDING 18.6% OR

  THE THIRD LARGEST PERCENTAGE OF THE TOTAL DEPOSITS IN THE SPOKANE

  METROPOLITAN AREA.  (THE TWO BANKS WITH THE LARGEST PERCENTAGES

  IN THE AREA HOLD 42.1% AND 31.6% RESPECTIVELY OF TOTAL

  DEPOSITS.)  THE GOVERNMENT BASES ITS CASE EXCLUSIVELY ON THE

  POTENTIAL-COMPETITION DOCTRINE, SEEKING TO ESTABLISH THAT THE

  MERGER "MAY . . . SUBSTANTIALLY . . . LESSEN COMPETITION"  WITHIN

  THE MEANING OF 7: (I) BY ELIMINATING THE PROSPECT THAT NBC,

  ABSENT ACQUISITION OF THE MARKET SHARE REPRESENTED BY WTB, WOULD

ENTER SPOKANE DE NOVO OR THROUGH ACQUISITION OF A SMALLER BANK

  AND THUS WOULD ASSIST IN DECONCENTRATING THAT MARKET OVER THE

  LONG RUN; (II) BY ENDING PRESENT PROCOMPETITIVE EFFECTS ALLEGEDLY

  PRODUCED IN SPOKANE BY NBC'S PERCEIVED PRESENCE ON THE FRINGE OF

  THE SPOKANE MARKET; AND (III) BY TERMINATING THE ALLEGED

  PROBABILITY THAT WTB AS AN INDEPENDENT ENTITY WOULD DEVELOP BY

  INTERNAL EXPANSION OR MERGERS WITH OTHER MEDIUM-SIZED BANKS INTO

  A REGIONAL OR ULTIMATELY STATEWIDE ACTUAL COMPETITIOR OF NBC AND

  OTHER LARGE BANKS.  THE DISTRICT COURT HELD AGAINST THE

  GOVERNMENT ON ALL ASPECTS AND DISMISSED THE COMPLAINT.  HELD: 

  1.  AS "A NECESSARY PREDICATE" TO DECIDING WHETHER THE PROPOSED

  MERGER CONTRAVENES THE CLAYTON ACT, THE DISTRICT COURT PROPERLY

  FOUND THAT THE RELEVANT PRODUCT MARKET WAS THE "BUSINESS OF

  COMMERCIAL BANKING" AND THAT THE RELEVANT GEOGRAPHIC MARKET WAS

  THE SPOKANE METROPOLITAN AREA.  THE ENTIRE STATE IS NOT, DESPITE

  THE GOVERNMENT'S CONTRARY CONTENTION, AN APPROPRIATE "SECTION OF

  THE COUNTRY" WITHIN THE MEANING OF 7, SINCE FOR THE PURPOSE OF

  THIS CASE THE APPROPRIATE "SECTION OF THE COUNTRY" AND THE

  "RELEVANT GEOGRAPHIC MARKET" ARE THE SAME, BEING THE AREA IN

WHICH THE ACQUIRED FIRM IS AN ACTUAL, DIRECT COMPETITIOR, AND

  SINCE MOREOVER THE GOVERNMENT HAS NOT SHOWN THAT THE EFFECT OF

  THE MERGER ON A STATEWIDE BASIS "MAY BE SUBSTANTIALLY TO LESSEN

  COMPETITION"  WITHIN THE MEANING OF 7.  PP. 618 - 623. 

     2.  WHILE GEOGRAPHIC MARKET EXTENSION MERGERS BY COMMERCIAL

  BANKS MUST PASS MUSTER UNDER THE POTENTIAL-COMPETITION DOCTRINE,

  THE APPLICATION OF THE DOCTRINE TO COMMERCIAL BANKING MUST TAKE

  INTO ACCOUNT THE EXTENSIVE AND UNIQUE FEDERAL AND STATE

  REGULATORY RESTRAINTS ON ENTRY INTO THAT LINE OF COMMERCE,

  INCLUDING CONTROLS OVER THE NUMBER OF BANK CHARTERS TO BE

  GRANTED, PRIOR BANK REGULATORY AGENCY APPROVAL OF THE OPENING OF

  BRANCHES, AND STATE-LAW RESTRICTIONS, SUCH AS THOSE IN

  WASHINGTON, ON DE NOVO GEOGRAPHIC EXPANSION THROUGH BRANCHING AND

  MULTIBANK HOLDING COMPANIES.  PP. 626 - 630. 

3.  THE GOVERNMENT'S EVIDENCE OF CONCENTRATION RATIOS IN THE

  SPOKANE COMMERCIAL BANKING MARKET ESTABLISHED A PRIMA FACIE CASE

  THAT THAT MARKET WAS SUFFICIENTLY CONCENTRATED TO INVOKE THE

  POTENTIAL-COMPETITION DOCTRINE, AND APPELLEES DID NOT DEMONSTRATE

  THAT SUCH RATIOS INACCURATELY DEPICTED THE ECONOMIC

  CHARACTERISTICS OF THE SPOKANE MARKET.  PP. 630 - 632. 

     4.  IN VIEW OF THE LEGAL BARRIERS TO ENTRY, NOTABLY STATE-LAW

  PROHIBITIONS AGAINST DE NOVO BRANCHING, BRANCHING FROM A BRANCH

  OFFICE, AND MULTIBANK HOLDING COMPANIES, THE GOVERNMENT FAILED TO

  SUSTAIN ITS BURDEN OF PROOF THAT THE CHALLENGED MERGER VIOLATES 7

BY ELIMINATING THE LIKELIHOOD THAT, BUT FOR THE MERGER, NBC WOULD

  ENTER SPOKANE DE NOVO BY MEANS OF SPONSORSHIP-ACQUISITION OR

  THROUGH A FOOTHOLD ACQUISITION OF A SMALL BANK IN THE SPOKANE

  AREA, SINCE IT WAS NOT SHOWN THAT WITHER OF THE PROPOSED

  ALTERNATIVE METHODS OF ENTRY WAS FEASIBLE OR OFFERED A

  SUBSTANTIAL LIKELIHOOD OF ULTIMATELY PRODUCING DECONCENTRATION OF

  THE SPOKANE MARKET OF OTHER SIGNIFICANT PROCOMPETITIVE EFFECTS. 

  PP.  632 - 639. 

 5.  THE GOVERNMENT'S FAILURE TO ESTABLISH THAT NBC HAS

ALTERNATIVE METHODS OF ENTRY OFFERING A REASONABLE LIKELIHOOD OF

  PRODUCING SIGNIFICANT PROCOMPETITIVE EFFECTS IS DETERMINATIVE OF

  ITS CONTENTION THAT WITHOUT REGARD TO THE POSSIBILITY OF FUTURE

  DECONCENTRATION OF THE SPOKANE MARKET, THE CHALLENGED MERGER IS

  ILLEGAL BECAUSE IT ELIMINATED NBC AS A PERVEIVED POTENTIAL

  ENTRANT.  ASSUMING THAT COMMERCIAL BANKERS IN SPOKANE ARE AWARE

  OF THE REGULATORY BARRIERS THAT RENDER NBC AN UNLIKELY OR

  INSIGNIFICANT POTENTIAL ENTRANT EXCEPT BY MERGER WITH WTB,IT IS

  IMPROBABLE, IN LIGHT OF SUCH BARRIERS, THAT NBC EXERTS ANY

  MEANINGFUL PROCOMPETITIVE INFLUENCE OVER SPOKANE BANKS BY

STANDING "IN THE WINGS."  PP. 639 - 640. 

     6.  THE RECORD AMPLY SUPPORTS THE DISTRICT COURT'S FINDING
THAT

  THE GOVERNMENT "FAILED TO ESTABLISH . . . THAT THERE IS ANY

REASONABLE PROBABILITY THAT WTB WILL EXPAND INTO OTHER BANKING

  MARKETS,"  SINCE AT NO TIME IN ITS 70-YEAR HISTORY HAS WTB

  ESTABLISHED BRANCHES OUTSIDE THE SPOKANE AREA, ACQUIRED ANOTHER

  BANK, OR RECEIVED A MERGER OFFER OTHER THAN THE ONE AT ISSUE

  HERE.  PP. 640 - 641. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, BLACKMUN, AND REHNQUIST, JJ., JOINED.  WHITE, J.,
FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ., JOINED,
POST, P. 642.  DOUGLAS, J., TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS CIVIL ANTITRUST ACTION UNDER 7 OF THE
CLAYTON ACT, 38 STAT. 731, AS AMEMDED, 15 U.S.C. 18, TO CHALLENGE A
PROPOSED MERGER BETWEEN TWO COMMERCIAL BANKS.  THE ACQUIRING BANK IS A
LARGE, NATIONALLY CHARTERED BANK BASED IN SEATTLE, WASHINGTON, AND THE
ACQUIRED BANK IS A MEDIUM-SIZE, STATE-CHARTERED BANK LOCATED AT THE
OPPOSITE END OF THE STATE IN SPOKANE.  THE BANKS ARE NOT DIRECT
COMPETITORS TO ANY SIGNIFICANT DEGREE IN SPOKANE OR ANY OTHER PART OF
THE STATE.  THEY HAVE NO BANKING OFFICES IN EACH OTHER'S HOME CITIES. 
THE MERGER AGREEMENT WOULD SUBSTITUTE THE ACQUIRING BANK FOR THE
ACQUIRED BANK IN SPOKANE AND WOULD PERMIT THE FORMER FOR THE FIRST TIME
TO OPERATE AS A DIRECT PARTICIPANT IN THE SPOKANE MARKET. 

THE PROPOSED MERGER WOULD HAVE NO EFFECT ON THE NUMBER OF BANKS IN
SPOKANE.  THE UNITED STATES BASES ITS CASE EXCLUSIVELY ON THE POTENTIAL
COMPETITION DOCTRINE UNDER 7 OF THE CLAYTON ACT.  IT CONTENDS THAT IF
THE MERGER IS PROHIBITED, THE ACQUIRING BANK WOULD FIND AN ALTERNATE
AND MORE COMPETITIVE MEANS FOR ENTERING THE SPOKANE AREA AND THAT THE
ACQUIRED BANK WOULD ULTIMATELY DEVELOP BY INTERNAL EXPANSION OR MERGERS
WITH SMALLER BANKS INTO AN ACTUAL COMPETITOR OF THE ACQUIRING BANK AND
OTHER LARGE BANKS IN SECTIONS OF THE STATE OUTSIDE SPOKANE.  THE
GOVERNMENT FURTHER SUBMITS THAT THE MERGER WOULD TERMINATE THE ALLEGED
PROCOMPETITIVE INFLUENCE THAT THE ACQUIRING BANK PRESENTLY EXERTS OVER
SPOKANE BANKS DUE TO THE POTENTIAL FOR ITS ENTRY INTO THAT MARKET. 

AFTER A FULL TRIAL, THE DISTRICT COURT HELD AGAINST THE GOVERNMENT
ON ALL ASPECTS OF THE CASE.  WE AFFIRM THAT COURT'S JUDGMENT.  WE HOLD
THAT IN APPLYING THE POTENTIAL-COMPETITION DOCTRINE TO COMMERCIAL
BANKING, COURTS MUST TAKE INTO ACCOUNT THE EXTENSIVE FEDERAL AND STATE
REGULATION OF BANKS, PARTICULARY THE LEGAL RESTRAINTS ON ENTRY UNIQUE
TO THIS LINE OF COMMERCE.  THE LEGAL BARRIERS TO ENTRY IN THE INSTANT
CASE, NOTABLY STATE-LAW PROHIBITIONS AGAINST DE NOVO BRANCHING, AGAINST
BRANCHING FROM A BRANCH OFFICE, AND AGAINST MULTIBANK HOLDING
COMPANIES, COMPEL US TO CONCLUDE THAT THE CHALLENGED MERGER IS NOT IN
VIOLATION OF 7. 

        I

        BACKGROUND A. FACTS. 

THE ACQUIRING BANK, NATIONAL BANK OF COMMERCE (NBC), IS A NATIONAL
BANKING ASSOCIATION WITH ITS PRINCIPAL OFFICE IN SEATTLE, WASHINGTON. 
LOCATED IN THE NORTHWEST CORNER OF THE STATE, SEATTLE IS THE LARGEST
CITY IN WASHINGTON.  NBC IS A WHOLLY OWNED SUBSIDIARY OF A REGISTERED
BANK HOLDING COMPANY, MARINE BANCORPORATION, INC. (MARINE), AND IN
TERMS OF ASSETS, DEPOSITS, AND LOANS IS THE SECOND LARGEST BANKING
ORGANIZATION WITH HEADQUARTERS IN THE STATE OF WASHINGTON.  AT THE END
OF 1971, NBC HAD TOTAL ASSETS OF $1.8 BILLION, TOTAL DEPOSITS OF $1.6
BILLION, AND TOTAL LOANS OF $881.3 MILLION.  /1/  IT OPERATES 107
BRANCH BANKING OFFICES WITHINT THE STATE, 59 OF WHICH ARE LOCATED IN
THE SEATTLE METROPOLITAN AREA AND 31 OF WHICH ARE IN LESSER DEVELOPED
METROPOLITAN AREAS IN WASHINGTON ARE SEATTLE, TACOMA, SPOKANE, AND
EVERETT.  NBC HAS NO BRANCH OFFICES IN THE LATTER THREE AREAS. 

THE TARGET BANK, WAHSINGTON TRUST BANK (WTB), FOUNDED IN 1902, IS A
STATE BANK WITH HEADQUARTERS IN SPOKANE.  SPOKANE IS LOCATED IN THE
EXTREME EASTERN PART OF THE STATE, APPROXIMATELY 280 ROAD MILES FROM
SEATTLE.  IT IS THE LARGEST CITY IN EASTERN WASHINGTON, WITH A
POPULATION OF 170,000 WITHIN THE CORPORATE LIMITS AND OF APPROXIMATELY
200,000 IN THE OVERALL METROPOLITAN AREA.  THE CITY HAS A SUBSTANTIAL
COMMERCIAL AND INDUSTRIAL BASE.  THE SURROUNGING REGION IS SPARSELY
POPULATED AND IS DEVOTED LARGELY TO AGRICULTURE, MINING, AND TIMBER. 
SPOKANE SERVES AS A TRADE CENTER FOR THIS REGION.  NBC, THE ACQUIRING
BANK, HAS HAD A LONGSTANDING INTEREST IN SECURING ENTRY INTO SPOKANE. 

WTB HAS SEVEN BRANCH OFFICES, SIX IN THE CITY OF SPOKANE AND ONE IN
OPPORTUNITY, A SPOKANE SUBURB.  WTB IS THE EIGHTH LARGEST BANKING
ORGANIZATION WITH HEADQUARTERS IN WASHINGTON AND THE NINTH LARGEST
BANKING ORGANIZATION IN THE STATE.  AT THE END OF 1971, IT HAD ASSETS
OF $112 MILLION, TOTAL DEPOSITS OF $95.6 MILLION, AND LOANS OF $57.6
MILLION.  IT CONTROLS 17.4% OF THE 46 COMMERCIAL BANKING OFFICES IN THE
SPOKANE METROPOLITAN AREA.  IT IS ONE OF 12 MIDDLE-SIZE BANKS IN
WASHINGTON (I.E., BANKS WITH ASSETS IN THE $30 MILLION TO $250 MILLION
RANGE). 

WTB IS WELL MANAGED AND PROFITABLE.  FROM DECEMBER 31, 1966, TO JUNE
30, 1972, INCREASED ITS PERCENTAGE OF TOTAL DEPOSITS HELD BY BANKING
ORGANIZATIONS IN THE SPOKANE METROPOLITAN AREA FROM 16.6% TO 18.6%.
THE AMOUNT OF ITS TOTAL DEPOSITS GREW BY APPROXIMATELY 50% DURING THAT
PERIOD, A SOMEWHAT HIGHER RATE OF INCREASE THAN EXHIBITED BY ALL
BANKING ORGANIZATIONS OPERATING IN SPOKANE AT THE SAME TIME.  /2/
ALTHOUGH WTB HAS EXHIBITED A PATTERN OF MODERATE GROWTH, AT NO TIME
DURING ITS 70-YEAR HISTORY HAS IT EXPANDED OUTSIDE THE SPOKANE
METROPOLITAN AREA. 

AS OF JUNE 30, 1972, THERE WERE 91 NATIONAL AND STATE BANKING
ORGANIZATIONS IN WASHINGTON.  THE FIVE LARGEST IN THE STATE HELD 74.3%
OF THE STATE'S TOTAL COMMERCIAL BANK DEPOSITS AND OPERATED 61.3% OF ITS
BANKING OFFICES.  AT THAT TIME, THE TWO LARGEST IN THE STATE, SEATTLE
FIRST NATIONAL BANK AND NBC, HELD 51.3% OF TOTAL DEPOSITS AND OPERATED
36.5% OF THE BANKING OFFICES IN WASHINGTON.  /3/  THERE ARE SIX BANKING
ORGANIZATINS OPERATING IN THE SPOKANE METROPOLITAN AREA.  ONE
ORGANIZATION, WASHINGTON BANCSHARES, INC., CONTROLS TWO SEPARATE BANKS
AND THEIR RESPECTIVE BRANCH OFFICES.  AS OF MIDYEAR 1972, THIS
ORGANIZATION IN THE AGGREGATE HELD 42,1% OF TOTAL DEPOSITS IN THE
AREA.  SEATTLE-FIRST NATIONAL BANK, BY COMPARISON, HELD 31.6%.  THE
TARGET BANK HELD 18.6% OF TOTAL DEPOSITS AT THAT TIME, PLACING IT THIRD
IN THE SPOKANE AREA BEHIND WASHINGTON BANCSHARES, INC., AND SEATTLE
FIRST NATIONAL BANK.  THUS, TAKEN TOGETHER, WASHINGTON BANCSHARES,
SEATTLE-FIRST NATIONAL BANK, AND WTB HOLD APPROXIMATELY 92% OF TOTAL
DEPOSITS IN THE SPOKANE AREA.  NONE OF THE REMAINING THREE COMMERCIAL
BANKS IN SPOKANE HOLDS A MARKET SHARE LARGER THAN 3.1%.  /4/  ONE OF
THESE BANKS, FARMERS & MERCHANTS BANK, HAS OFFICES ONLY IN A SPOKANE
SUBURB. 

THE DEGREE OF CONCENTRATION OF THE COMMERCIAL BANKING BUSINESS IN
SPOKANE MAY WELL REFLECT THE SEVERITY OF WASHINGTON'S STATUTORY
RESTRAINTS ON DE NOVO GEOGRAPHIC EXPANSION BY BANKS.  ALTHOUGH
WASHINGTON PERMITS BRANCHING, THE RESTRICTIONS PLACED ON THAT METHOD OF
INTERNAL GROWTH ARE STRINGENT.  SUBJECT TO THE APPROVAL OF THE STATE
SUPERVISOR OF BANKING, WASHINGTON BANKS WITH SUFFICIENT PAID-IN CAPITAL
MAY OPEN BRANCHES IN THE CITY OR TOWN IN WHICH THEIR HEADQUARTERS ARE
LOCATED, THE UNINCORPORATED AREAS OF THE COUNTY IN WHICH THEIR
HEADQUARTERS ARE LOCATED, AND INCORPORATED COMMUNITIES WHICH HAVE NO
BANKING OFFICE.  WASH. REV. CODE ANN. 30.40.-020 (SUPP. 1973).  BUT
UNDER STATE LAW, NO STATE-CHARTERED BANK "SHALL ESTABLISH OR OPERATE
ANY BRANCH . . . IN ANY CITY OR TOWN OUTSIDE THE CITY OR TOWN IN WHICH
ITS PRINCIPAL PLACE OF BUSINESS IS LOCATED IN WHICH ANY BANK, TRUST
COMPANY OR NATIONAL BANKING ASSOCIATION REGULARLY TRANSACTS A BANKING
OR TRUST BUSINESS, EXCEPT BY TAKING OVER OR ACQUIRING AN EXISTING BANK,
TRUST COMPANY OR NATIONAL BANKING ASSOCIATION . . . ."  IBID.  SINCE
FEDERAL LAW SUBJECTS NATIONALLY CHARTERED BANKS TO THE BRANCHING
LIMITATIONS IMPOSED ON THEIR STATE COUNTERPARTS, /5/  NATIONAL AND
STATE BANKS IN WASHINGTON ARE RESTRICTED TO MERGERS OR ACQUISITIONS IN
ORDER TO EXPAND INTO CITIES AND TOWNS WITH PRE-EXISTING BANKING
ORGANIZATIONS. 

THE ABILITY TO ACQUIRE EXISTING BANKS IS ALSO LIMITED BY A PROVISION
OF STATE LAW REQUIRING THAT BANKS INCORPORATING IN WASHINGTON INCLUDE
IN THEIR ARTICLES OF INCORPORATION A CLAUSE FORBIDDING A NEW BANK FROM
MERGING WITH OR PERMITTING ITS ASSETS TO BE ACQUIRED BY ANOTHER BANK
FOR A PERIOD OF AT LEAST 10 YEARS, WITHOUT THE CONSENT OF THE STATE
SUPERVISOR OF BANKING.  WASH. REV. CODE ANN.  30.08.020 (7) (1961 AND
SUPP. 1973).  /6/  IN ADDITION, ONCE A BANK ACQUIRES OR TAKES OVER ONE
OF THE BANKS OPERATING IN A CITY OR TOWN OTHER THAN THE ACQUIRING
BANK'S PRINCIPAL PLACE OF BUSINESS, IT CANNOT BRANCH FROM THE ACQUIRED
BANK.  WASH. REV. CODE ANN. 30.40.020.  THUS, AN ACQUIRING BANK THAT
ENTERS A NEW CITY OR TOWN CONTAINING BANKS OTHER THAN THE ACQUIRED BANK
IS RESTRICTED TO THE NUMBER OF BANK OFFICES OBTAINED AT THE TIME OF THE
ACQUISITION.  MOREOVER, MULTIBANK HOLDING COMPANIES ARE PROHIBITED IN
WASHINGTON.  WASH. REV. CODE ANN. 30.04.230 (SUPP. 1973).  /7/  UNDER
STATE LAW, NO CORPORATION IN WASHINGTON MAY OWN, HOLD, OR CONTROL MORE
THAN 25% OF THE CAPITAL STOCK OF MORE THAN ONE BANK.  IBID.  VIOLATIONS
OF THE ONE-BANK HOLDING COMPANY STATUTE ARE GROSS MISDEMEANORS CARRYING
A POSSIBLE PENALTY OF FORFEITURE OF A CORPORATE CHARTER.  IBID.
ACCORDINGLY, IT IS NOT POSSIBLE IN WASHINGTON TO ACHIEVE THE ROUGH
EQUIVALENT OF FREE BRANCHING BY AGGREGATION A NUMBER OF UNIT BANKS
UNDER A BANK HOLDING COMPANY.  /8/ B.  THE PROCEEDINGS 

IN FEBRUARY 1971, MARINE, NBC, AND WTB AGREED TO MERGE THE LATTER
INTO NBC.  NBC, AS THE SURVIVING BANK, WOULD OPERATE ALL EIGHT BANKING
OFFICES OF WTB AS BRANCHES OF NBC.  IN MARCH 1971, NBC AND WTB APPLIED
TO THE COMPTROLLER OF THE CURRENCY PURSUANT TO THE BANK MERGER ACT OF
1966 FOR APPROVAL OF THE MERGER.  /9/  AS REQUIRED BY THAT ACT, SEE 12
U.S.C. 1828 (C) (4), THE COMPTROLLER REQUESTED "REPORTS ON THE
COMPETITIVE FACTORS INVOLVED" FROM THE ATTORNEY GENERAL, THE FEDERAL
DEPOSIT INSURANCE CORPORATION, AND THE BOARD OF GOVERNORS OF THE
FEDERAL RESERVE SYSTEM.  EACH OF THESE AGENCIES SUBMITTED A NEGATIVE
REPORT ON THE COMPETITIVE EFFECTS OF THE MERGER.  THE ATTORNEY GENERAL
RELIED ON THE REASONS ADVANCED IN THE INSTANT CASE.  THE LATTER TWO
AGENCIES BASED THEIR CONCLUSIONS PRIMARILY ON THE DEGREE OF
CONCENTRATION IN COMMERCIAL BANKING IN WASHINGTON AS A WHOLE. 

THE COMPTROLER APPROVED THE MERGER IN A REPORT ISSUED SEPTEMBER 24,
1971.  HE CONCLUDED THAT STATE LAW PRECLUDED NBC FROM BRANCHING IN
SPOKANE AND "EFFECTIVELY PREVENTED" NBC FROM CAUSING A NEW SPOKANE BANK
TO BE FORMED WHICH COULD LATER BE TREATED AS A MERGER PARTNER.  HE
NOTED THAT STATE LAW PREVENTED THE ONLY INDEPENDENT SMALL BANK WITH
OFFICES LOCATED WITHIN THE CITY BOUNDARIES OF SPOKANE FROM MERGING WITH
NBC, SINCE THAT BANK WAS STATE CHARTERED, HAD BEEN FOUNDED IN 1965, AND
WAS SUBJECT TO THE MINIMUM 10-YEAR RESTRICTION AGAINST SALE OF A NEW
BANK SET OUT IN WASH. REV. CODE ANN. 30.08.020 (7).  THE COMPTROLLER
RELIED HEAVILY ON THE VIEW THAT THE MERGER WOULD CONTRIBUTE TO THE
CONVENINCE AND NEEDS OF BANK CUSTOMERS IN SPOKANE BY BRINGING TO THEM
SERVICES NOT PREVIOUSLY PROVIDED BY WTB. 

ACTING WITHIN THE 30-DAY LIMITATION PERIOD SET OUT IN THE BANK
MERGER ACT OF 1966, 12 U.S.C. 1828 (C) (7), THE UNITED STATES THEN
COMMENCED THIS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON, CHALLENGING THE LEGALITY OF THE MERGER
UNDER 7 OF THE CLAYTON ACT.  /10/  AS A RESULT, THE MERGER WAS
AUTOMATICALLY STAYED.  12 U.S.C. 1828 (C) (7) (A).  PURSUANT TO 12
U.S.C. 1828 (C) (7) (D), THE COMPTROLLER INTERVENED IN SUPPORT OF THE
MERGER AS A PARTY DEFENDANT. 

PRIOR TO TRIAL THE UNITED STATES DROPPED ALL ALLEGATIONS CONCERNING
ACTUAL COMPETITION BETWEEN THE MERGER PARTNERS.  /11/  THE REMAINDER OF
THE COMPLAINT ADDRESSED THE SUBJECT OF POTENTIAL COMPETITION.  THE
UNITED STATES SOUGHT TO ESTABLISH THAT THE MERGER "MAY . . .
SUBSTANTIALLY LESSEN COMPETITION" WITHIN THE MEANING OF 7 IN THREE
WAYS:  BY ELIMINATING THE PROSPECT THAT NBC, ABSENT ACQUISITION OF THE
MARKET SHARE REPRESENTED BY WTB, WOULD ENTER SPOKANE DE NOVO OR THROUGH
ACQUISITION OF A SMALLER BANK AND THUS WOULD ASSIST IN DECONCENTRATING
THAT MARKET OVER THE LONG RUN; BY ENDING PRESENT PROCOMPETITIVE EFFECTS
ALLEGEDLY PRODUCED IN SPOKANE BY NBC'S PERCEIVED PRESENCE ON THE FRINGE
OF THE SPOKANE MARKET; AND BY TERMINATING THE ALLEGED PROBABILITY THAT
WTB AS AN INDEPENDENT ENTITY WOULD DEVELOP THROUGH INTERNAL GROWTH OR
THROUGH MERGERS WITH OTHER MEDIUM-SIZE BANKS INTO A REGIONAL OR
ULTIMATELY STATEWIDE COUNTERWEIGHT TO THE MARKET POWER OF THE STATE'S
LARGEST BANKS.  THE GOVERNMENT'S FIRST THEORY--ALLEGED LIKELIHOOD OF DE
NOVO OR FOOTHOLD ENTRY BY NBC IF THE CHALLENGED MERGER WERE BLOCKED-
WAS THE PRIMARY BASIS UPON WHICH THIS CASE WAS PRESENTED TO THE
DISTRICT COURT.  /12/ 

AT THE CLOSE OF FINAL ORAL ARGUMENT FOLLOWING A WEEK-LONG TRIAL, THE
DISTRICT JUDGE RULED FOR THE THE DEFENDANTS FROM THE BENCH.  TWO WEEKS
LATER HE ADOPTED WITHOUT CHANGE THE DEFENDANTS' PROPOSED FINDINGS OF
FACTS AND CONCLUSIONS OF LAW, THE LATTER CONSISTING OF SEVEN
SENTENCES.  1973 - 1 TRADE CAS. 74,496, P. 94,244 (1973).  /13/  THE
COURT FOUND THAT THE MERGER WOULD "SUBSTANTIALLY" INCREASE COMPETITION
IN COMMERCIAL BANKING IN THE SPOKANE METROPOLITAN AREA AND WOULD HAVE
"NO INHERENT ANTI-COMPETITIVE EFFECT . . . ."  IBID.  IN LIGHT OF THE
LEGAL AND ECONOMIC BARRIERS TO ANY OTHER METHOD OF ENTRY, THE COURT
FURTHER FOUND "NO REASONABLE PROBABILITY" THAT, ABSENT THE CHALLENGED
MERGER, NBC WOULD ENTER THE SPOKANE MARKET IN THE "REASONABLY
FORESEEABLE FUTURE."  ID., AT 94,245.     ACCORDING TO THE DISTRICT
COURT, WASHINGTON LAW FORBADE NBC FROM ESTABLISHING DE NOVO BRANCHES IN
SPOKANE, AND THE GOVERNMENT HAD FAILED TO ESTABLISH THAT THERE WAS ANY
EXISTING BANK IN SPOKANE OTHER THAN WTB "AVAILABLE FOR ACQUISITION BY
NBC ON ANY REASONABLY ACCEPTABLE BASIS AT ANY TIME IN THE FORESEEABLE
FUTURE, OR AT ALL."  IBID.  MOREOVER, ANY ATTEMPT BY NBC TO ENTER DE
NOVO BY ASSISTING IN THE FORMATION OF AND THEN ACQUIRING A NEWLY
CHARTERED BANK IN SPOKANE "EVEN IF IT COULD BE LEGALLY ACCOMPLISHED." 
/14/  OR TO UNDERTAKE A FOOTHOLD ACQUISITION, WOULD NOT BE ECONOMICALLY
FEASIBLE.  IBID.  IN ADDITION TO NOTING THE PAST AND PROJECTED SLOW
GROWTH OF THE SPOKANE AREA, THE COURT FOUND THAT THE ABILITY TO BRANCH
IN A METROPOLITAN AREA WAS ESSENTIAL TO EFFECTIVE COMPETITION IN THE
BANKING BUSINESS.  IBID.  UNDER STATE LAW, NBC WOULD BE UNABLE TO OPEN
NEW BRANCH OFFICES IN SPOKANE IF IT MADE A FOOTHOLD ACQUISITION OR
HELPED FROM AND THEN ACQUIRED A NEW BANK.  THESE AND OTHER FACTORS
RENDERED "NEGATIVE" THE PROSPECTS FOR GROWTH OF A FOOTHOLD ACQUISITION
OR OF A SPONSORED BANK STARTED FROM SCRATCH.  IBID.  THIS WAS CONFIRMED
BY THE EXPERIENCE OF ANOTHER LARGE BANKING ORGANIZATION NOT BASED IN
SPOKANE THAT HAD ENTERED THE CITY THROUGH A FOOTHOLD ACQUISITION IN
1964 AND SUBSEQUENTLY HAD BEEN UNABLE TO EXPAND THE MARKET SHARE OF THE
ACQUIRED BANK.  ID., AT 94,245 - 94,246. 

THE COURT FOUND NO PERCEPTIBLE PROCOMPETITIVE EFFECT DERIVING FROM
NBC'S PREMERGER PRESENCE ON THE FRINGE OF THE SPOKANE MARKET.  ID., AT
94,246.  IT ALSO HELD THAT THE GOVERNMENT HAD FAILED TO CARRY ITS
BURDEN OF PROVING A REASONABLE PROBABILITY THAT WTB, ABSENT THE MERGER,
WOULD EXPAND BEYOND THE SPOKANE MARKET BY DE NOVO GROWTH OR THROUGH
COMBINATION WITH ANOTHER MEDIUM-SIZE BANK.  IBID.  IT FOUND NO
PROBABILITY THAT NBC WOULD BE "ENTRENCHED AS A DOMINANT BANK IN THE
SPOKANE METROPOLITAN AREA" AS A RESULT OF THE MERGER, AND IT COULD FIND
NO LIKELIHOOD THAT THE MERGER WOULD TRIGGER A SERIES OF DEFENSIVE
MERGERS BY OTHER BANKS IN THE STATE.  ID., AT 94,246 - 94,247.  /15/ 

ON THE BASIS OF ITS FINDINGS, THE DISTRICT COURT DISMISSED THE
GOVERNMENT'S COMPLAINT.  THE GOVERNMENT THREUPON BROUGHT THIS DIRECT
APPEAL UNDER THE EXPEDITING ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C.
29.  WE NOTED PROBABLE JURISDICTION.  414 U.S. 907 (1973). 

        II

        THE RELEVANT MARKETS 

DETERMINATION OF THE RELEVANT PRODUCT AND GEOGRAPHIC MARKETS IS "A
NECESSARY PREDICATE" TO DECIDING WHETHER A MERGER CONTRAVENES THE
CLAYTON ACT.  UNITED STATES V. DU PONT & CO., 353 U.S. 586, 593 (1957);
BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 324 (1962).  THE
DISTRICT COURT FOUND THAT THE RELEVANT PRODUCT MARKET "WITHIN WHICH THE
COMPETITIVE EFFECT OF THE MERGER IS TO BE JUDGED" IS THE "BUSINESS OF
COMMERCIAL BANKING (AND THE CLUSTER OF PRODUCTS AND SERVICES DENOTED
THEREBY).  . . ."  1973 - 1 TRADE CAS. 74,496, P. 94,243.  THE PARTIES
DO NOT DISPUTE THIS FINDING, AND IN ANY EVENT IT IS IN FULL ACCORD WITH
OUR PRECEDENTS.  /16/ 

THE DISTRICT COURT FOUND THAT THE RELEVANT GEOGRAPHIC MARKET IS THE
SPOKANE METROPOLITAN AREA, "CONSISTING ORF THE CITY OF SPOKANE AND THE
POPULATED AREAS IMMEDIATELY ADJACENT THERETO, INCLUDING THE AREA
EXTENDING EASTERLY THROUGH THE SUBURB OF OPPORTUNITY TOWARD THE IDAHO
BORDER . . . ."  ID., AT 94,244.  THIS AREA EXTENDS APPROXIMATELY FIVE
MILES TO THE WEST AND SOUTH AND 10 MILES TO THE NORTH AND EAST OF THE
CENTER OF THE CITY.  IT IS WHOLLY WITHIN AND CONSIDERABLY SMALLER THAN
SPOKANE COUNTY AND IS SURROUNDED BY A SPARSELY POPULATED REGION, WITH
NO NEARBY MAJOR METROPOLITAN CENTERS.  IT CONTAINS ALL EIGHT OF THE
TARGET BANK'S OFFICES.  ON THE BASIS OF THE RECORD, WE HAVE NO REASON
TO DOUBT THAT IT CONSTITUTES A REASONABLE APPROXIMATION OF THE
"LOCALIZED" BANKING MARKET IN WHICH SPOKANE BANKS OFFER THE MAJOR PART
OF THEIR SERVICES AND TO WHICH LOCAL CONSUMERS CAN PRACTICABLY TURN FOR
ALTERNATIVES.  E.G., UNITED STATES V. PHILLIPSBURG NATIONAL BANK, 399
U.S. 350, 362 - 365 (1970).  IT IS ALSO THE AREA WHERE "THE EFFECT OF
THE MERGER ON COMPETITION WILL BE DIRECT AND IMMEDIATE . . . ," WHICH
AS THIS COURT HAS HELD IS THE APPROPRIATE "SECTION OF THE COUNTRY" FOR
PURPOSED OF 7.  UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321, 357 (1963).  ACCORDINGLY, WE AFFIRM THE DISTIRCT COURT'S HOLDING
THAT THE SPOKANE METROPOLITAN AREA IS THE APPROPRIATE GEOGRAPHIC MARKET
FOR DETERMINING THE LEGALITY OF THE MERGER. 

PRIOR TO TRIAL THE GOVERNMENT STIPULATED THAT THE SPOKANE AREA IS A
RELEVANT GEOGRAPHIC MARKET IN THE INSTANT CASE, AND THERE IS NO DISPUTE
THAT IT IS THE ONLY BANKING MARKET IN WHICH WTB IS A SIGNIFICANT
PARTICIPANT.  NEVERTHELESS, THE GOVERNMENT CONTENDS THAT THE ENTIRE
STATE IS ALSO AN APPROPRIATE "SECTION OF THE COUNTRY" IN THIS CASE.  IT
IS CONCEDED THAT THE STATE IS NOT A BANKING MARKET.  BUT THE GOVERNMENT
ASSERTS THAT THE STATE IS AN ECONOMICALLY DIFFERENTIATED REGION,
BECAUSE ITS BOUNDARIES DELINEATE AN AREA WITHIN WHICH WASHINGTON BANKS
ARE INSULATED FROM MOST FROMS OF COMPETITION BY OUT-OF-STATE BANKING
ORGANIZATIONS.  THE GOVERNMENT FURTHER ARGUES THAT THIS MERGER, AND
OTHERS IT ALLEGEDLY WILL TRIGGER, MAY LEAD EVENTUALLY TO THE DOMINATION
OF ALL BANKING IN THE STATE BY A FEW LARGE BANKS, FACING EACH OTHER IN
A NETWORK OF LOCAL, OLIGOPOLISTIC BANKING MARKETS.  THIS ASSUMED
EVENTUAL STATEWIDE LINKAGE OF LOCAL MARKETS, IT IS ARGUED, WILL ENHANCE
STATEWIDE THE POSSIBILITY OF PARALLEL, STANDARDIZED, ANTICOMPETITIVE
BEHAVIOR.  THIS CONCERN FOR THE POSSIBLE STATEWIDE CONSEQUENCES OF
GEOGRAPHIC MARKET EXTENSION MERGERS BY COMMERCIAL BANKS APPEARS TO BE
AN IMPORTANT REASON FOR THE GOVERNMENT'S RECENT EFFORTS TO BLOCK SUCH
MERGERS THROUGH AN APPLICATION OF THE POTENTIAL-COMPETITION DOCTRINE
UNDER 7.  /17/ 

THE GOVERNMENT'S PROPOSED READING OF THE "ANY SECTION OF THE
COURTRY" PHASE OF 7 IS AT VARIANCE WITH THIS COURT'S 7 CASES, AND WE
REJECT IT.  WITHOUT EXCEPTION THE COURT HAS TREATED "SECTION OF THE
COUNTRY" AND "RELEVANT GEOGRAPHIC MARKET" AS IDENTICAL, /18/  AND IT
HAS DEFINED THE LATTER CONCEPT AS THE AREA IN WHICH THE GOODS OR
SERVICES AT ISSUE ARE MARKETED TO A SIGNIFICANT DEGREE BY THE ACQUIRED
FIRM.  E.G., PHILADELPHIA NATIONAL BANK, SUPRA, AT 357 - 362.  /19/  IN
CASES IN WHICH THE ACQUIRED FIRM MARKETS ITS PRODUCTS OR SERVICES ON A
LOCAL, REGIONAL, AND NATIONAL BASIS, THE COURT HAS ACKNOWLEDGED THE
EXISTENCE OF MORE THAN ONE RELEVANT GEOGRAPHIC MARKET.  /20/  BUT IN NO
PREVIOUS 7 CASE HAS THE COURT DETERMINED THE LEGALITY OF A MERGER BY
MEASURING ITS EFFECTS ON AREAS WHERE THE ACQUIRED FIRM IS NOT A DIRECT
COMPETITOR.  IN URGING THAT THE LEGALITY OF THIS MERGER BE GAUGED ON A
STATEWIDE BASIS, THE GOVERNMENT IS SUGGESTING THAT WE TAKE PRECISELY
THAT STEP, BECAUSE, AS IT CONCEDES, THE SECTION OF THE COUNTRY IN WHICH
WTB MARKETS BY FAR THE GREATEST PORTION OF ITS SERVICES, DUE TO THE
PREDOMINANTLY LOCALIZED CHARACTER OF COMMERCIAL BANKING, IS THE SPOKANE
METROPOLITAN AREA.  /21/  UNDER THE PRECEDENTS, WE DECLINE THE
GOVERNMENT'S INVITATION.  WE HOLD THAT IN A POTENTIAL-COMPETITION CASE
LIKE THIS ONE, THE RELEVANT GEOGRAPHIC MARKET OR APPROPRIATE SECTION OF
THE COUNTRY IS THE AREA IN WHICH THE ACQUIRED FIRM IS AN ACTUAL, DIRECT
COMPETITIOR. 

APART FROM THE FACT THAT THE GOVERNMENT'S STATEWIDE APPROACH IS NOT
SUPPORTED BY THE PRECEDENTS, IT IS SIMPLY TOO SPECULATIVE ON THIS
RECORD.  THERE HAS BEEN NO PERSUASIVE SHOWING THAT THE EFFECT OF THE
MERGER ON A STATEWIDE BASIS "MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION"  WITHIN THE MEANING OF 7.  TO BE SURE, 7 WAS DESIGNED TO
ARREST MERGERS "AT ANY TIME WHEN THE TREND TO A LESSENING OF
COMPETITION IN A LINE OF COMMERCE (IS) STILL IN ITS INCIPIENCY."  BROWN
SHOE CO., 370 U.S., AT 317.  SEE, E.G., UNITED STATES V. VON'S GROCERY
CO., 384 U.S. 270, 277 (1966).  MOREOVER, THE PROSCRIPTION EXPRESSED IN
7 AGAINST MERGERS "WHEN A 'TENDENCY' TOWARD MONOPOLY OR (A) 'REASONABLE
LIKELIHOOD' OF A SUBSTANTIAL LESSENING OF COMPETITION IN THE RELEVANT
MARKET IS SHOWN . . . ," UNITED STATES V. PENN-OLIN CHEMICAL CO., 378
U.S. 158, 171 (1964), APPLIES ALIKE TO ACTUAL-AND-POTENTIAL-COMPETITION
CASES.  IBID.  BUT IT IS TO BE REMEMBERED THAT 7 DEALS IN
"PROBABILITIES," NOT "EPHEMERAL POSSIBILITIES."  BROWN SHOE CO., SUPRA,
AT 323.  /22/  THE GOVERNMENT'S UNDERLYING CONCERN FOR A LINKAGE OR
NETWORK OF STATEWIDE OLIGOPOLISTIC BANKING MARKETS IS, ON THIS RECORD
AT LEAST, CONSIDERABLY CLOSER TO "EPHEMERAL POSSIBILITIES" THAN TO
"PROBABILITIES."  TO ASSUME, ON THE BASIS OF ESSENTIALLY NO EVIDENCE,
THAT THE CHALLENGED MERGER WILL TEND TO PRODUCE A STATEWIDE LINKAGE OF
OLIGOPOLIES IS TO ESPOUSE A PER SE RULE AGAINST GEOGRAPHIC MARKET
EXTENSION MERGERS LIKE THE ONE AT ISSUE HERE.  NO 7 CASE FROM THIS
COURT HAS GONE THAT FAR, /23/  AND WE DO SO TODAY.  FOR THE PURPOSE OF
THIS CASE, THE APPROPRIATE "SECTION OF THE COUNTRY" AND THE "RELEVANT
GEOGRAPHIC MARKET" ARE THE SAME--THE SPOKANE METROPOLITAN AREA. 

        III

        POTENTIAL-COMPETITION DOCTRINE 

THE TERM "POTENTIAL COMPETITOR" APPEARED FOR THE FIRST TIME IN A 7
OPINION OF THIS COURT IN UNITED STATES V. EL PASO NATURAL GAS CO., 376
U.S. 651, 659 (1964).  EL PASO WAS IN REALITY, HOWEVER, AN ACTUAL
COMPETITION RATHER THAN A POTENTIAL-COMPETITION CASE.  /24/  THE
POTENTIAL-COMPETITION DOCTRINE HAS BEEN DEFINED IN MAJOR PART BY
SUBSEQUENT CASES, PARTICULARLY UNITED STATES V. FALSTAFF BREWING CORP.,
410 U.S. 526 (1973).  /25/  UNEQUIVOCAL PROOF THAT AN ACQUIRING FIRM
ACTUALLY WOULD HAVE ENTERED DE NOVO BUT FOR A MERGER IS RARELY
AVAILABLE.  /26/  THUS, AS FALSTAFF INDICATES, THE PRINCIPAL FOCUS OF
THE DOCTRINE IS ON THE LIKELY EFFECTS OF THE PREMERGER POSITION OF THE
ACQUIRING FIRM ON THE FRINGE OF THE TARGET MARKET.  IN DEVELOPING AND
APPLYING THE DOCTRINE, THE COURT HAS RECOGNIZED THAT A MARKET IS
SUBSTANTIALLY CONCENTRATED, IF THE ACQUIRING FIRM HAS THE
CHARACTERISTICS, CAPABILITIES, AND ECONOMIC INCENTIVE TO RENDER IT A
PERCEIVED POTENTIAL DE NOVO ENTRANT, AND IF THE ACQUIRING FIRM'S
PREMERGER PRESENCE ON THE FRINGE OF HE TARGET MARKET IN FACT TEMPERED
OLIGOPOLISTIC BEHAVIOR ON THE PART OF EXISTING PARTICIPANTS IN THAT
MARKET.  IN OTHER WORDS, THE COURT HAS INTERPRETED 7 AS ENCOMPASSING
WHAT IS COMMONLY KNOWN AS THE "WINGS EFFECT"--THE PROBABILITY THAT THE
ACQUIRING FIRM PROMPTED PREMERGER PROCOMPETITIVE EFFECTS WITHIN THE
TARGET MARKET BY BEING PERCEIVED BY THE EXISTING FIRMS IN THAT MARKET
AS LIKELY TO ENTER DE NOVO.  FALSTAFF, SUPRA, AT 531 - 537.  /27/  THE
ELIMINATION OF SUCH PRESENT PROCOMPETITIVE EFFECTS MAY RENDER A MERGER
UNLAWFUL UNDER 7. 

ALTHOUGH THE CONCEPT OF PERCEIVED POTENTIAL ENTRY HAS BEEN ACCEPTED
IN THE COURT'S PRIOR 7 CASES, THE POTENTIAL-COMPETITION DOCTRINE
PROSCRIBES A MARKET EXTENSION MERGER SOLELY ON THE GROUND THAT SUCH A
MERGER ELIMINATES THE PROSPECT FOR LONG-TERM DECONCENTRATION OF AN
OLIGOPOLISTIC MARKET THAT IN THEORY MIGHT RESULT IF THE ACQUIRING FIRM
WERE FORBIDDEN TO ENTER EXCEPT THROUGH A DE NOVO UNDERTAKING OR THROUGH
THE ACQUISTION OF A SMALL EXISTING ENTRANT (A SO-CALLED FOOTHOLD OR
TOEHOLD ACQUISITION).  FALSTAFF EXPRESSLY RESERVED THIS ISSUE.  /28/ 

THE GOVERNMENT'S POTENTIAL-COMPETITION ARGUMENT IN THE INSTANT CASE
PROCEEDS IN FIVE STEPS.  FIRST, IT ARGUES THAT THE POTENTIAL
COMPETITION DOCTRINE APPLIES WITH FULL FORCE TO COMMERCIAL BANKS. 
SECOND, IT SUBMITS THAT THE SPOKANE COMMERCIAL BANKING MARKET IS
SUFFICIENTLY CONCENTRATED TO INVOKE THAT DOCTRINE.  THIRD, IT URGES US
TO RESOLVE IN ITS FAVOR THE QUESTION LEFT OPEN IN FALSTAFF.  FOURTH, IT
CONTENDS THAT WITHOUT REGARD TO THE POSSIBILITY OF FUTURE
DECONCENTRATION OF THE SPOKANE MARKET, THE CHALLENGED MERGER IS ILLEGAL
UNDER ESTABLISHED DOCTRINE BECAUSE IT ELIMINATES NBC AS A PERCEIVED
POTENTIAL ENTRANT.  FINALLY, IT ASSERTS THAT THE MERGER WILL ELIMINATE
WTB'S POTENTIAL FOR GROWTH OUTSIDE SPOKANE.  WE SHALL ADDRESS THOSE
POINTS IN THE ORDER PRESENTED.  A. APPLICATION OF THE DOCTRINE TO
COMMERCIAL BANKS. 

SINCE UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321
(1963), THE COURT HAS TAKEN THE VIEW THAT, AS A GENERAL RULE, STANDARD
7 PRINCIPLES APPLICABLE TO UNREGULATED INDUSTRIES APPLY AS WELL TO
MERGERS BETWEEN COMMERCIAL BANKS.  SEE ALSO UNITED STATES V. FIRST
NATIONAL BANK, 376 U.S. 665 (1964).  CONGRESS REACTED TO PHILADELPHIA
NATIONAL BANK BY INCLUDING IN THE BANK MERGER ACT OF 1966 A
"CONVENIENCE AND NEEDS" DEFENSE UNIQUELY APPLICABLE TO COMMERCIAL
BANKS.  12 U.S.C. 1828 (C) (5) (BE AND (C) (7) (B).  SUBSEQUENT CASES
HAVE REVEALED, HOWEVER, THAT THAT DEFENSE COMES INTO PLAY ONLY AFTER A
DISTRICT COURT HAS MADE A DE NOVO DETERMINATION OF THE STATUS OF A BANK
MERGER UNDER THE CLAYTON ACT.  SEE UNITED STATES V. THIRD NATIONAL
BANK, 390 U.S. 171 (1968); UNITED STATES V. FIRST CITY NATIONAL BANK,
386 U.S. 361 (1967).  AS THE COURT NOTED IN PHILLIPSBURG NATIONAL BANK,
SUPRA, "THE ANTITRUST STANDARDS OF . . . PHILADELPHIA NATIONAL BANK . .
. WERE PRESERVED IN THE BANK MERGER ACT OF 1966."  399 U.S., AT 358. 
/29/ 

ALTHOUGH THE COURT'S PRIOR BAND MERGER CASES HAVE INVOLVED
COMBINATIONS BETWEEN ACTUAL COMPETITORS OPERATING IN THE SAME
GEORGRAPHIC MARKETS, AN ELEMENT THAT DISTINGUISHES THEM FACTUALLY FROM
THIS CASE, NEVERTHELESS ARE STRONG PRECEDENTS FOR THE VIEW THAT 7
DOCTRINES ARE APPLICABLE TO COMMERCIAL BANKING.  IN ACCORD WITH THE
GENERAL PRINCIPLES OF THOSE CASES, WE HOLD THAT GEOGRAPHIC MARKET
EXTENSION MERGERS BY COMMERCIAL BANKS MUST PASS MUSTER UNDER THE
POTENTIAL-COMPETITION DOCTRINE.  WE FURTHER HOLD, HOWEVER, THAT THE
APPLICATION OF THE DOCTRINE TO COMMERCIAL BANKING MUST TAKE INTO
ACCOUNT THE UNIQUE FEDERAL AND STATE REGULATORY RESTRAINTS ON ENTRY
INTO THAT LINE OF COMMERCE.  FAILURE TO DO SO WOULD PRODUCE
MISCONCEPTIONS THAT GO TO THE HEART OF THE DOCTRINE ITSELF.     THE
GOVERNMENT'S PRESENT POSITION HAS EVOLVED OVER A SERIES OF EIGHT
DISTRICT COURT CASES, ALL OF THEM DECIDED UNFAVORABLY TO ITS VIEWS. 
/30/  THE CONCEPTUAL DIFFICULTY WITH THE GOVERNMENT'S APPROACH, AND AN
IMPORTANT REASON WHY IT HAS BEEN UNIFORMLY UNSUCCESSFUL IN THE DISTRICT
COURTS, IS THAT IT FAILS TO ACCORD FULL WEIGHT TO THE EXTENSIVE FEDERAL
AND REGULATORY BARRIERS TO ENTRY INTO COMMERCIAL BANKING.  /31/  THIS
OMISSION IS OF GREAT IMPORTANCE, BECAUSE EASE OF ENTRY ON THE PART OF
THE ACQUIRING FIRM IS A CENTRAL PREMISE OF THE POTENTIAL-COMPETITION
DOCTRINE.  /32/     UNLIKE, FOR EXAMPLE, THE BEER INDUSTRY, SEE
FALSTAFF BREWING CORP., SUPRA, ENTRY OF NEW COMPETITORS INTO THE
COMMERCIAL BANKING FIELD IS "WHOLLY A MATTER OF GOVERNMENTAL GRACE..." 
AND "FAR FROM EASY."  PHILADELPHIA NATIONAL BANK, SUPRA, AT 367, AND N.
44.  BEER MANUFACTURERS ARE FREE TO BASE THEIR DECISIONS REGARDING
ENTRY AND THE SCALE OF ENTRY INTO A NEW GEOGRAPHIC MARKET OF
NONREGULATORY CONSIDERATIONS, INCLUDING THEIR OWN FINANCIAL
CAPABILITIES, THEIR LONG-RANGE GOALS AS TO MARKETS, THE COST OF
CREATING NEW PRODUCTION AND DISTRIBUTION FACILITIES, AND ABOVE ALL THE
PROFIT PROSPECTS IN THE TARGET MARKET.  THEY NEED GIVE NO THOUGHT TO
PUBLIC NEEDS AND CONVENIENCE.  NO COMPARABLE FREEDOM EXISTS FOR
COMMERCIAL BANKS.  EASE OF ENTRY INTO A MARKET PRESUMES EASE OF EXIT --
I.E., THE WITHDRAWAL OR FINANCIAL COLLAPSE OF A CERTAIN NUMBER OF
PARTICIPANTS IN THAT MARKET.  REFLECTING THIS COUNTRY'S BITTER
EXPERIENCE OF FOUR DECADES AGO THAT "(A) BANK FAILURE IS A COMMUNITY
DISASTER.  . .," 

/33/ ENTRY INTO AND EXIT FROM THE COMMERCIAL BANKING BUSINESS HAVE
BEEN EXTENSIVELY REGULATED BY THE FEDERAL AND STATE GOVERNMENTS.  THE
REGULATORY BARRIERS TO ENTRY INCLUDE FEDERAL AND STATE SUPERVISORY
CONTROLS OVER THE NUMBER OF BANK CHARTERS TO BE GRANTED, DESIGNED TO
LIMIT THE NUMBER OF BANKS OPERATING IN ANY PARTICULAR MARKET AND THUS
TO PREVENT BANK FAILURES.  SEE ID., AT 328.  IN ADDITION, NO BRANCH, NO
MATTER HOW SMALL, MAY BE OPENED WITHOUT PRIOR APPROVAL OF THE
APPROPRIATE BANK REGULATORY AGENCY.  MOREOVER, THERE ARE STATE LAW
RESTRICTIONS, SUCH AS THOSE IN FORCE IN WASHINGTON, ON DE NOVO
GEOGRAPHIC EXPANSION THROUGH BRANCHING AND MULTIBANK HOLDING
COMPANIES.  AS NOTED EARLIER, WASHINGTON STATUTES FORBID BRANCHING INTO
CITIES AND TOWNS WHERE THE EXPANDING BANK DOES NOT MAINTAIN ITS
HEADQUARTERS AND OTHER BANKS OPERATE, AND THEY FORBID BRANCHING FROM A
BRANCH IN SUCH AREAS.  SEE SUPRA, AT 609 - 611.  SIMILARLY, WASHINGTON
PERMITS ONLY ONE-BANK HOLDING COMPANIES.  SUPRA, AT 611 - 612. 

IN PHILADELPHIA NATIONAL BANK, SUPRA, THE COURT RELIED ON REGULATORY
BARRIERS TO ENTRY TO SUPPORT ITS CONCLUSION THAT MERGERS BETWEEN BANKS
IN DIRECT COMPETITION IN THE SAME MARKET MUST BE SCRUTINIZED WITH
PARTICULAR CARE UNDER 7.  374 U.S. AT 352, 367 - 370, 372.  BUT THE
SAME RESTRICTIONS ON NEW ENTRY RENDER IT DIFFICULT TO HOLD THAT A
GEOGRAPHIC MARKET EXTENSION MERGER BY A COMMERCIAL BANK IS UNLAWFUL
UNDER THE POTENTIAL-COMPETITION DOCTRINE.  SUCH LIMITATIONS OFTEN
SIGNIFICANTLY REDUCE, IF THEY DO NOT ELIMINATE, THE LIKELIHOOD THAT THE
ACQUIRING BANK IS EITHER A PERCEIVED POTENTIAL DE NOVO ENTRANT OR A
SOURCE OF FUTURE COMPETITIVE BENEFITS THROUGH DE NOVO OR FOOTHOLD
ENTRY.  SIMILARLY, THE COURT NOTED IN PHILADELPHIA NATIONAL BANK THAT
UNDER APPLICABLE STATE LAW DE NOVO BRANCHING IN THE RELEVANT MARKET WAS
PERMISSIBLE AND PRESENTED AN "ALTERNATIVE TO THE MERGER ROUTE...." 
ID., AT 370.  IN THIS CASE, BY CONTRAST, THERE ARE SERIOUS QUESTIONS
WHETHER AN "ALTERNATIVE TO THE MERGER ROUTE"  THROUGH BRANCHING OR A
FUNCTIONAL EQUIVALENT IS A LEGAL OR FEASIBLE METHOD OF ENTRY BY NBC
INTO THE SPOKANE MARKET.  B. STRUCTURE OF THE SPOKANE MARKET. 

SINCE THE LEGALITY OF THE CHALLENGED MERGER MUST BE JUDGED BY ITS
EFFECTS ON THE RELEVANT PRODUCT AND GEOGRAPHIC MARKETS, COMMERCIAL
BANKING IN THE SPOKANE METROPOLITAN AREA, IT IS IMPERATIVE TO DETERMINE
THE COMPETITIVE CHARACTERISTICS OF COMMERCIAL BANKING IN THAT SECION OF
THE COUNTRY.  THE POTENTIAL-COMPETITION MARKETS.  THAT IS, THE DOCTRINE
COMES INTO PLAY ONLY WHERE THERE ARE DOMINANT PARTICIPANTS IN THE
TARGET MARKET ENGAGING IN INTERDEPENDENT OR PARALLEL BEHAVIOR AND WITH
THE CAPACITY EFFECTIVELY TO DETERMINE PRICE AND TOTAL OUTPUT OF GOODS
OR SERVICES.  IF THE TARGET MARKET PERFORMS AS A COMPETITIVE MARKET IN
TRADITIONAL ANTITRUST TERMS, THE PARTICIPANTS IN THE MARKET WILL HAVE
NO OCCASION TO FASHION THEIR BEHAVIOR TO TAKE INTO ACCOUNT THE PRESENCE
OF A POTENTIAL ENTRANT.  THE PRESENT PROCOMPETITIVE EFFECTS THAT A
PERCEIVED POTENTIAL ENTRANT MAY PRODUCE IN AN OLIGOPOLISTIC MARKET WILL
ALREADY HAVE BEEN ACCOMPLISHED IF THE TARGET MARKET IS PERFORMING
COMPETITIVELY.  LIKEWISE, THERE WOULD BE NO NEED FOR CONCERN ABOUT THE
PROSPECTS OF LONG-TERM DECONCENTRATION OF A MARKET WHICH IS IN FACT
GENUINELY COMPETITIVE. 

IN AN EFFORT TO ESTABLISH THAT THE SPOKANE COMMERCIAL BANKING MARKET
IS OLIGOPOLISTIC, THE GOVERNMENT RELIED PRIMARILY ON CONCENTRATION
RATIOS INDICATING THAT THREE BANKING ORGANIZATIONS (INCLUDING WTB)
CONTROL APPROXIMATELY 92% OF TOTAL DEPOSITS IN SPOKANE.  THE DISTRICT
COURT HELD AGAINST THE GOVERNMENT ON THIS POINT, FINDING THAT "A HIGHLY
COMPETITIVE MARKET" EXISTED WHICH "DOES NOT SUFFER FROM PARALLEL OR
OTHER ANTICOMPETITIVE PRACTICES ATTRIBUTABLE TO UNDUE MARKET POWER." 
1973 - 1 TRADE CAS. 74,496, P. 94,246.  THE COURT APPARENTLY GAVE GREAT
WEIGHT TO THE TESTIMONY OF THE BANKS' EXPERT WITNESSES CONCERNING THE
NUMBER OF BAND ORGANIZATIONS AND BANKING OFFICES OPERATING IN THE
SPOKANE METROPOLITAN AREA.  THE RECORD INDICATES THAT NEITHER THE
GOVERNMENT NOR THE APPELLEES UNDERTOOK ANY SIGNIFICANT STUDY OF THE
PERFORMANCE, AS COMPARED TO THE STRUCTURE, OF THE COMMERCIAL BANKING
MARKET IN SPOKANE. 

WE CONCLUDE THAT BY INTRODUCING EVIDENCE OF CONCENTRATION RATIOS OF
THE MAGNITUDE OF THOSE PRESENT HERE THE GOVERNMENT ESTABLISHED A PRIMA
FACIE CASE THAT THE SPOKANE MARKET WAS A CANDIDATE FOR THE POTENTIAL
COMMERCIAL DOCTRINE.  ON THIS ASPECT OF THE CASE, THE BURDEN WAS THEN
UPON APPELLEES TO SHOW THAT THE CONCENTRATION RATIOS, WHICH CAN BE
UNRELIABLE INDICATORS OF ACTUAL MARKET BEHAVIOR, SEE UNITED STATES V.
GENERAL DYNAMICS CORP., 415 U.S. 486 (1974), DID NOT ACCURATELY DEPICT
THE ECONOMIC CHARACTERISTICS OF THE SPOKANE MARKET.  IN OUR VIEW
APPELLEES DID NOT CARRY THIS BURDEN, AND THE DISTRICT COURT ERRED IN
HOLDING TO THE CONTRARY.  APPELLEES INTRODUCED NO SIGNIFICANT EVIDENCE
OF THE ABSENCE OF PARALLEL BEHAVIOR IN THE PRICING OR PROVISION OF
COMMERCIAL BANK SERVICES IN SPOKANE.  /34/ 

WE NOTE THAT IT IS HARDLY SURPRISING THAT THE SPOKANE COMMERCIAL
BANKING MARKET IS STRUCTURALLY CONCENTRATED.  AS THE GOVERNMENT'S
EXPERT WITNESS CONCEDED, ALL BANKING MARKETS IN THE COUNTRY ARE LIKELY
TO BE CONCENTRATED.  /35/  THIS IS SO BECAUSE AS A COUNTRY WE HAVE MADE
THE POLICY JUDGMENT TO RESTRICT ENTRY INTO COMMERCIAL BANKING IN ORDER
TO PROMOTE BANK SAFETY.  THUS, MOST BANKING MARKETS IN THEORY WILL BE
SUBJECT TO THE POTENTIAL-COMPETITION DOCTRINE.  BUT THE SAME FACTOR
THAT USUALLY RENDERS SUCH MARKETS CONCENTRATED AND THEORETICAL
PROSPECTS FOR POTENTIAL-COMPETITION 7 CASES -- REGULATORY BARRIERS TO
NEW ENTRY -- WILL ALSO MAKE IT DIFFICULT TO ESTABLISH THAT THE DOCTRINE
INVALIDATES A PARTICULAR GEOGRAPHIC MARKET EXTENSION MERGER.  C.
POTENTIAL DE NOVO OR FOOTHOLD ENTRY. 

THE THIRD STEP IN THE GOVERNMENT'S ARGUMENT, RESOLUTION OF THE
QUESTION RESERVED IN FALSTAFF, WAS THE PRIMARY BASIS ON WHICH THE CASE
WAS PRESENTED TO THE DISTRICT COURT /36/  AND TO US.  THE GOVERNMENT
CONTENDS THAT THE CHALLENGED MERGER VIOLATES 7 BECAUSE IT ELIMINATES
THE ALLEGED LIKELIHOOD THAT, BUT FOR THE MERGER, NBC WOULD ENTER
SPOKANE DE NOVO OR THROUGH A FOOTHOLD ACQUISITION.  UTILIZATION OF ONE
OF THESE METHODS OF ENTRY, IT IS ARGUED, WOULD BE LIKELY TO PRODUCE
DECONCENTRATION OF THE SPOKANE MARKET OVER THE LONG RUN OR OTHER
COMPETITIVE EFFECTS, BECAUSE NBC WOULD BE REQUIRED TO COMPETE
VIGOROUSLY TO EXPAND ITS INITIALLY INSIGNIFICANT MARKET SHARE. 

TWO ESSENTIAL PRECONDITIONS MUST EXIST BEFORE IT IS POSSIBLE TO
RESOLVE WHETHER A VIOLATION OF 7.  IT MUST BE DETERMINED:  (I) THAT IN
FACT NBC HAS AVAILABLE FEASIBLE MEANS FOR ENTERING THE SPOKANE MARKET
OTHER THAN BY ACQUIRING WTB; AND (II) THAT THOSE MEANS OFFER A
SUBSTANTIAL LIKELIHOOD OF ULTIMATELY PRODUCING DECONCENTRATION OF THAT
MARKET OR OTHER SIGNIFICANT PROCOMPETITIVE EFFECTS.  THE PARTIES ARE IN
SHARP DISAGREEMENT OVER THE EXISTENCE OF EACH OF THESE PRECONDITIONS IN
THIS CASE.  THERE IS NO DISPUTE THAT NBC POSSESSES THE FINANCIAL
CAPABILITY AND INCENTIVE TO ENTER.  THE CONTROVERSY TURNS ON WHAT
METHODS OF ENTRY ARE REALISTICALLY POSSIBLE AND ON THE LIKELY EFFECT OF
VARIOUS METHODS ON THE CHARACTERISTICS OF THE SPOKANE COMMERCIAL
BANKING MARKET. 

IT IS UNDISPUTED THAT UNDER STATE LAW NBC CANNOT ESTABLISH DE NOVO
BRANCHES IN SPOKANE AND THAT ITS PARENT HOLDING COMPANY CANNOT HOLD
MORE THAN 25% OF THE STOCK OF ANY OTHER BANK.  ENTRY FOR NBC INTO
SPOKANE THEREFORE MUST BE BY ACQUISITION OF AN EXISTING BANK.  THE
GOVERNMENT CONTENDS THAT NBC HAS TWO DISTINCT ALTERNATIVES FOR
ACQUISITION OF BANKS SMALLER THAN WTB AND THAT EITHER ALTERNATIVE WOULD
BE LIKELY TO BENEFIT THE SPOKANE COMMERCIAL BANKING MARKET. 

FIRST, THE GOVERNMENT CONTENDS THAT NBC COULD ARRANGE FOR THE
FORMATION OF A NEW BANK (CONCEPT KNOWN AS "SPONSORSHIP"), INSURE THAT
THE STOCK FOR SUCH A NEW BANK IS PLACED IN FRIENDLY HANDS, AND THEN
ULTIMATELY ACQUIRE THAT BANK.  APPELLEES RESPOND THAT THIS APPROACH
WOULD VIOLATE THE SPIRIT IF NOT THE LETTER OF STATE LAW RESTRICTIONS ON
BANK BRANCHING.  THEY NOTE THAT THIS METHOD WOULD REQUIRE THS ISSUANCE
OF EITHER A STATE OR A NATIONAL CHARTER, AND THEY ASSERT THAT NEITHER
STATE NOR FEDERAL BANKING AUTHORITIES WOULD BE LIKELY TO GRANT A
CHARTER FOR A NEW BANK IN A STATIC, "WELL-BANKED" MARKET LIKE SPOKANE. 
MOREOVER, IT IS ARGUED THAT SUCH OFFICIALS WOULD BE CERTAIN TO REFUSE
TO DO SO WHERE THE PURPOSE OF THE SCHEME WAS TO AVOID THE REQUIREMENTS
OF THE STATE BRANCHING LAW.  /37/  APPELLEES FURTHER NOTE THAT THE
STOCK AND ASSETS OF ANY NEW STATE BANK IN WASHINGTON ARE INALIENABLE
FOR AT LEAST 10 YEARS WITHOUT APPROVAL OF STATE BANKING OFFICIALS, SEE
WASH. REV. CODE ANN. 30.08.020 (7), AND THEY ARGUE THAT SUCH OFFICIALS
WOULD REFUSE TO GRANT APPROVAL FOR SALE AS PART OF A SPONSORSHIP PLAN. 

THE GOVERNMENT COUNTERS BY POINTING TO INSTANCES IN WHICH
SPONSORSHIP-ACQUISITION OF SMALL BANKS BY LARGE BANKS HAS OCCURRED IN
WASHINGTON, ON OCCASION WITH THE APPARENT KNOWLEDGE AND ASSERTED
APPROVAL OF BANK REGULATORY OFFICIALS AND WITHIN LESS THAN 10 YEARS OF
THE FORMATION OF THE NEW BANK.  /38/  INDEED, THE GOVERNMENT CONTENDS
THAT NBC IS PRESENTLY SPONSORING A SMALL BANK IN AN UNRELATED AREA OF
WASHINGTON WITH THE PURPOSE OF ULTIMATE ACQUISITION AND CONVERSION OF
THE BANK INTO A BRANCH OF NBC.  APPELLEES REPLY THAT IF SPONSORSHIP BY
OTHER BANKS HAS OCCASIONALLY OCCURRED, IT IS NONETHELESS ILLEGAL UNDER
STATE LAW AND THAT PRIOR INSTANCES OF TOLERATED ILLEGALITY DO NOT
CONVERT AN ILLEGAL PROCESS INTO A LEGAL ONE.  NBC ALSO DENIES THAT IT
HAS EVER ENGAGED IN SPONSORHSIP SOLELY FOR THE PURPOSE OF ACQUISITION,
AND IT INSISTS THAT EVEN IF A NEW BANK IS SPONSORED THERE IS NO
GUARANTEE THAT THE SPONSOR, RATHER THAN SOME OTHER BANK WILLING TO
OUTBID IT, WILL ACQUIRE THE SPONSORED BANK.  /39/  APPELLEES FURTHER
POINT OUT, AS IS CONFIRMED BY THE RECORD, THAT THE UNITED STATES HAS
NOT SHOWN THAT ANY BANK IN WASHINGTON HAS EVER USED SPONSORSHIP
ACQUISITION AS A MEANS OF ENTERING A MAJOR METROPOLITAN AREA.  IN FACT,
THE GOVERNMENT'S PRINCIPAL WITNESS IN SUPPORT OF ITS SPONSORSHIP THEORY
CONCEDED ON CROSS-EXAMINATION THAT HIS BANK "WOULDN'T CONSIDER TRYING
TO USE THAT METHOD IN GETTING INTO" A MAJOR CITY.  /40/ 

IN ITS FINDINGS AND CONCLUSIONS, THE DISTRICT COURT DID NOT RESOLVE
THE QUESTION OF THE STATUS OF THE GOVERNMENT'S PROPOSED SPONSORSHIP
ACQUISITION APPROACH UNDER WASHINGTON'S BANKING STATUTES.  /41/  WE
SIMILARLY DECLINE TO DECIDE THIS ISSUE.  ALTHOUGH WE NOTE THAT THE
INTRICATE PROCEDURE FOR ENTRY BY SPONSORSHIP ESPOUSED BY THE GOVERNMSNT
CAN SCARCELY BE COMPARED TO THE DE NOVO ENTRY OPPORTUNITIES AVAILABLE
TO UNREGULATED ENTERPRISES SUCH AS BEER PRODUCERS, SEE FALSTAFF, SUPRA,
WE WILL ASSUME, ARGUENDO, THAT NBC CONCEIVABLY COULD SUCCEED IN
SPONSORING AND THEN ACQUIRING A NEW BANK IN SPOKANE AT SOME INDEFINITE
TIME IN THE FUTURE.  IT DOES NOT FOLLOW FROM THIS ASSUMPTION, HOWEVER,
THAT THIS METHOD OF ENTRY WOULD BE REASONABLY LIKELY TO PRODUCE ANY
SIGNIFICANT PROCOMPETITIVE BENEFITS IN THE SPOKANE COMMERCIAL BANKING
MARKET.  TO THE CONTRARY, IT APPEARS LIKELY THAT SUCH A METHOD OF ENTRY
WOULD NOT SIGNIFICANTLY AFFECT THAT MARKET. 

STATE LAW WOULD NOT ALLOW NBC TO BRANCH FROM A SPONSORED BANK AFTER
IT WAS ACQUIRED.  NBC'S ENTRY INTO SPOKANE THEREFORE WOULD BE FROZEN AT
THE LEVEL OF ITS INITIAL ACQUISITION.  THUS, IF NBC WERE TO ENTER
SPOKANE BY SPONSORING AND ACQUIRING A SMALL BANK, IT WOULD BE TRAPPED
INTO A POSITION OF OPERATING A SINGLE BRANCH OFFICE IN A LARGE
METROPOLITAN AREA WITH NO REASONABLE LIKELIHOOD OF DEVELOPING A
SIGNIFICANT SHARE OF THAT MARKET.  /42/  THIS ASSUMED METHOD OF ENTRY
THREFORE WOULD OFFER LITTLE REALISTIC HOPE OF ULTIMATELY PRODUCING
DECONCENTRATION OF THE SPOKANE MARKET.  MOREOVER, IT IS UNLIKELY THAT A
SINGLE NEW BANK IN SPOKANE WITH A SMALL MARKET SHARE, AND FORBIDDEN TO
BRANCH, WOULD HAVE ANY OTHER SIGNIFICANT PROCOMPETITIVE EFFECT ON THAT
MARKET.  THE GOVERNMENT INTRODUCED NO EVIDENCE, FOR EXAMPLE,
ESTABLISHING THAT THE THREE SMALL BANKS PRESENTLY IN SPOKANE HAVE HAD
ANY MEANINGFUL EFFECT ON THE ECONOMIC BEHAVIOR OF THE LARGE SPOKANE
BANKS.  IN SUM, IT BLINKS REALITY TO CONCLUDE THAT THE OPPORTUNITY FOR
ENTRY THROUGH SPONSORSHIP, ASSUMING ITS AVAILABILITY, IS COMPARABLE TO
THE ENTRY ALTERNATIVES OPEN TO UNREGULATED INDUSTRIES SUCH AS THOSE
INVOLVED IN THIS COURT'S PRIOR POTENTIAL-COMPETITION CASES /43/  OR
WOULD BE LIKELY TO PRODUCE THE COMPETITIVE EFFECTS OF A TRULY
UNFETTERED METHOD OF ENTRY.  SINCE THERE IS NO SUBSTANTIAL LIKELIHOOD
OF PROCOMPETITIVE LOSS IF THE CHALLENGED MERGER IS UNDERTAKEN IN PLACE
OF THE GOVERNMENT'S SPONSORSHIP THEORY, WE ARE UNABLE TO CONCLUDE THAT
THE EFECT OF THE FORMER "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION"
WITHIN THE MEANING OF THE CLAYTON ACT.     AS A SECOND ALTERNATIVE
METHOD OF ENTRY, THE GOVERNMENT PROPOSED THAT NBC COULD ENTER BY A
FOOTHOLD ACQUISITION OF ONE OF TWO SMALL, STATE-CHARTERED COMMERCIAL
BANKS THA OPERATE IN THE SPOKANE METROPOLITAN AREA.  /44/  APPELLEES
REPLY THAT ONE OF THOSE BANKS IS LOCATED IN A SUBURB AND HAS NO OFFICES
IN THE CITY OF SPOKANE, THAT AFTER AN ACQUISITION NBC UNDER STATE LAW
COULD NOT BRANCH FROM THE SUBURB INTO THE CITY, AND THAT SUCH A
PERIPHERAL FOOTHOLD CANNOT BE VIEWED AS AN ECONOMICALLY FEASIBLE METHOD
OF ENTRY INTO THE RELEVANT MARKET.  APPELLEES ALSO POINT OUT THAT THE
SECOND SMALL BANK WAS CHARTERED IN 1965 AND THUS UNDER STATE LAW WOULD
NOT HAVE BEEN AVAILABLE FOR ACQUISITION UNTIL AT LEAST FOUR YEARS AFTER
THE 1971 NBC-WTB MERGER AGREEMENT. 

GRANTING THE GOVERNMENT THE BENEFIT OF THE DOUBT THAT THESE TWO
SMALL BANKS WERE AVAILABLE MERGER PARTNERS FOR NBC, OR WERE AVAILABLE
AT SOME NOT TOO DISTANT TIME, IT AGAIN DOES NOT FOLLOW THAT AN
ACQUISITION OF EITHER WOULD PRODUCE THE LONG-TERM MARKET-STRUCTURE
BENEFITS PREDICTED BY THE GOVERNMENT.  ONCE NBC ACQUIRED EITHER OF
THESE BANKS, IT COULD NOT BRANCH FROM THE ACQUIRED BANK.  THIS
LIMITATION STRONGLY SUGGESTS THAT NBC WOULD NOT DEVELOP INTO A
SIGNIFICANT PARTICIPANT IN THE SPOKANE MARKET, A PROSPECT THAT FINDS
SUPPORT IN THE RECORD.  IN 1964, ONE OF THE LARGEST BANK HOLDING
COMPANIES IN THE COUNTRY, THROUGH ITS SEATTLE-BASED SUBSIDIARY,
ACQUIRED A FOOTHOLD BANK WITH TWO OFFICES IN SPOKANE.  EIGHT YEARS
LATER THIS BANK, PACIFIC NATIONAL BANK, HELD A MERE 2.2% OF TOTAL BANK
DEPOSITS IN THE SPOKANE METROPOLITAN AREA, AN INSIGNIFICANT INCREASE
OVER ITS SHARE OF THE MARKET AT THE DATE OF THE ACQUISITION.  SEE N.2,
SUPRA.  AN OFFICER OF THIS BANK, CALLED AS A WITNESS BY THE GOVERNMENT,
ATTRIBUTED THE POOR SHOWING TO AN INABILITY UNDER STATE LAW TO
ESTABLISH FURTHER BRANCHES IN SPOKANE.  /45/ 

IN SUM, WITH REGARD TO EITHER OF ITS PROPOSED ALTERNATIVE METHODS OF
ENTRY, THE GOVERNMENT HAS OFFERED AN UNPERSUASIVE CASE ON THE FIRST
PRECONDITION OF THE QUESTION RESERVED IN FALSTAFF--THAT FEASIBLE
ALTERNATIVE METHODS OF ENTRY IN FACT EXISTED.  PUTTING THESE
DIFFICULTIES ASIDE, THE GOVERNMENT SIMPLY DID NOT ESTABLISH THE SECOND
PRECONDITION.  IT FAILED TO DEMONSTRATE THAT THE ALTERNATIVE MEANS
OFFER A REASONABLE PROSPECT OF LONG-TERM STRUCTURAL IMPROVEMENT OR
OTHER BENEFITS IN THE TARGET MARKET.  IN FACT, INSOFAR AS COMPETITIVE
BENEFITS ARE CONCERNED, THE GOVERNMENT IS IN THE ANOMALOUS POSITION OF
OPPOSING A GEOGRAPHIC MARKET EXTENSION MERGER WILL INTRODUCE A THIRD
FULL-SERVICE BANKING ORGANIZATION TO THE SPOKANE MARKET, WHERE ONLY TWO
ARE NOW OPERATING, IN RELIANCE ON ALTERNATIVE MEANS OF ENTRY THAT
APPEAR UNLIKELY TO HAVE ANY SIGNIFICANT PROCOMPETITIVE EFFECT.  /46/
ACCORDINGLY, WE CANNOT HOLD FOR THE GOVERNMENT ON ITS PRINCIPAL
POTENTIAL-COMPETITION THEORY.  INDEED, SINCE THE PRECONDITIONS FOR THAT
THEORY ARE NOT PRESENT, WE DO NOT REACH IT, AND THEREFORE WE EXPRESS NO
VIEW ON THE APPROPRIATE RESOLUTION OF THE QUESTION RESERVED IF
FALSTAFF.  WE REITERATE THAT THIS CASE CONCERNS AN INDUSTRY IN WHICH
NEW ENTRY IS EXTENSIVELY REGULATED BY THE STATE AND FEDERAL
GOVERNMENTS.  D. PERCEIVED POTENTIAL ENTRY. 

THE GOVERNMENT'S FAILURE TO ESTABLISH THAT NBC HAS ALTERNATIVE
METHODS OF ENTRY THAT OFFER A REASONABLE LIKELIHOOD OF PRODUCING
PROCOMPETITIVE EFFECTS IS DETERMINATIVE OF THE FOURTH STEP OF ITS
ARGUMENT.  RATIONAL COMMERCIAL BANKERS IN SPOKANE, IT MUST BE ASSUMED,
ARE AWARE OF THE REGULATORY BARRIERS THAT RENDER NBC AN UNLIKELY OR AN
INSIGNIFICANT POTENTIAL ENTRANT EXCEPT BY MERGER WITH WTB.  IN LIGHT OF
THOSE BARRIERS, IT IS IMPROBABLE THAT NBC EXERTS ANY MEANINGFUL
PROCOMPETITIVE INFLUENCE OVER SPOKANE BANKS BY STANDING "IN THE
WINGS." 

MOREOVER, THE DISTRICT COURT FOUND AS A FACT THAT "THE THREAT OF
ENTRY BY NBC INTO THE SPOKANE MARKET BY ANY MEANS OTHER THAN THE
CONSUMMATION OF THE MERGER, TO THE EXTENT ANY SUCH THREATS EXISTS, DOES
NOT HAVE ANY SIGNIFICANT EFFECT ON THE COMPETITIVE PRACTICES OF
COMMERCIAL BANKS IN THAT MARKET NOR ANY SIGNIFICANT EFFECT ON THE LEVEL
OF COMPETITION THEREIN."  1973 - 1 TRADE CAS. 74,496, P. 94,246.  IN
MAKING THIS FINDING, IT APPEARS THAT THE DISTRICT COURT "APPRAISED THE
ECONOMIC FACTS" ABOUT NBC AND THE SPOKANE MARKET "IN ORDER TO DETERMINE
WHETHER IN ANY REALISTIC SENSE (NBC) COULD BE SAID TO BE A POTENTIAL
COMPETITOR ON THE FRINGE OF THE MARKET WITH LIKELY INFLUENCE ON
EXISTING COMPETITION."  FALSTAFF, 410 U.S., AT 533 - 534 (FOOTNOTE
OMITTED).  OUR REVIEW OF THE RECORD INDICATES THAT THE COURT'S FINDING
WAW NOT IN ERROR.  THE GOVERNMENT'S ONLY HARD EVIDENCE OF ANY "WINGS
EFFECT" WAS A MEMORANDUM WRITTEN IN 1962 BY AN OFFICER OF NBC
EXPRESSING THE VIEW THAT SPOKANE BANKS WERE LIKELY TO ENGAGE IN PRICE
COMPETITION AS NBC APPROACHED THEIR MARKET.  EVIDENCE OF AN EXPRESSION
OF OPINION BY AN OFFICER OF THE ACQUIRING BANK, NOT AN OFFICIAL OF A
BANK OPERATING IN THE TARGET MARKET, IN A MEMORANDUM WRITTEN A DECADE
PRIOR TO THE CHALLENGED MERGER DOES NOT ESTABLISH A VIOLATION OF 7.  E.
ELIMINATION OF WTB'S POTENTIAL FOR GROWTH 

IN THE FINAL STEP OF ITS ARGUMENT, THE GOVERNMENT CHALLENGES THE
MERGER ON THE GROUND THAT IT WILL ELIMINATE THE PROSPECT THAT WTB MAY
EXPAND OUTSIDE ITS BASE IN SPOKANE AND EVENTUALLY DEVELOP INTO A DIRECT
COMPETITOR WITH LARGE WASHINGTON BANKS IN OTHER AREAS OF THE STATE. 
THE DISTRICT COURT FOUND, HOWEVER, THAT THE GOVERNMENT HAD "FAILED TO
ESTABLISH . . . THAT THERE IS ANY REASONABLE PROBABILITY THAT WTB WILL
EXPAND INTO OTHER BANKING MARKETS . . . ."  1973 - 1 TRADE CAS. 74,496,
P. 94,246.  THE RECORD AMPLY SUPPORTS THIS FINDING.  AT NO TIME IN ITS
70-YEAR HISTORY HAS WTB ESTABLISHED BRANCHES OUTSIDE THE SPOKANE
METROPOLITAN AREA.  NOR HAS IT EVER ACQUIRED ANOTHER BANK /47/  OR
RECEIVED A MERGER OFFER OTHER THAN THE ONE AT ISSUE HERE.  /48/  IN
SUM, THE GOVERNMENT'S ARGUMENT ABOUT THE ELIMINATIN OF WTB'S POTENTIAL
FOR EXPANSION OUTSIDE SPOKANE IS LITTLE MORE THAN SPECULATION.  IT
PROVIDES NO SOUND BASIS FOR OVERTURNING THE DISTRICT COURT'S HOLDING. 

        IV

        CONCLUSION 

IN APPLYING THE DOCTRINE OF POTENTIAL COMPETITION TO COMMERCIAL
BANKING, COURTS MUST, AS WE HAVE NOTED, TAKE INTO ACCOUNT THE EXTENSIVE
FEDERAL AND STATE REGULATION OF BANKS.  OUR AFFIMANCE OF THE DISTRICT
COURT'S JUDGMENT IN THIS CASE RESTS PRIMARILY ON STATE STATUTORY
BARRIERS TO DE NOVO ENTRY AND TO EXPANSION FOLLOWING ENTRY INTO A NEW
GEOGRAPHIC MARKET.  IN STATES WHERE SUCH STRINGENT BARRIERS EXIST AND
IN THE ABSENCE OF A LIKELIHOOD OF ENTRENCHMENT, THE POTENTIAL
COMPETITION DOCTRINE--GROUNDED AS IT IS ON RELATIVE FREEDOM OF ENTRY ON
THE PART OF THE ACQUIRING FIRM--WILL SELDOM BAR A GEOGRAPHIC MARKET
EXTENSION MERGER BY A COMMERCIAL BANK.  IN STATES THAT PERMIT FREE
BRANCHING OR MULTIBANK HOLDING COMPANIES, COURTS HEARING CASES
INVOLVING SUCH MERGERS SHOULD TAKE INTO ACCOUNT ALL RELEVANT FACTORS,
INCLUDING THE BARRIERS TO ENTRY CREATED BY STATE AND FEDERAL CONTROL
OVER THE ISSUANCE OF NEW BANK CHARTERS.  TESTIMONY BY RESPONSIBLE
REGULATORY OFFICIALS THAT THEY WILL NOT GRANT NEW CHARTERS IN THE
TARGET MARKET IS ENTITLED TO GREAT WEIGHT, ALTHOUGH IT IS NOT
DETERMINATIVE.  TO AVOID THE DANGER OF SUBJECTING THE ENFORCEMENT OF
THE ANTITRUST LAWS TO THE POLICIES OF A PARTICULAR BANK REGULATORY
OFFICIAL OR AGENCY, COURTS SHOULD LOOK ALSO TO THE SIZE AND GROWTH
PROSPECTS OF THE TARGET MARKET, THE SIZE AND NUMBER OF BANKING
ORGANIZATIONS PARTICIPATING IN IT, AND PAST PRACTICES OF REGULATORY
AGENCIES IN GRANTING CHARTERS.  IF REGULATORY RESTRAINTS ARE NOT
DETERMINATIVE, COURTS SHOULD CONSIDER THE FACTORS THAT ARE PERTINENT TO
ANY POTENTIAL-COMPETITION CASE, INCLUDING THE ECONOMIC FEASIBILITY AND
LIKELIHOOD OF DE NOVO ENTRY, THE CAPABILITIES AND EXPANSION HISTORY OF
THE ACQUIRING FIRM, AND THE PERFORMANCE AS WELL AS THE STRUCTURAL
CHARACTERISTICS OF THE TARGET MARKET. 

THE JUDGMENT IS

              AFFIRMED. 

/1/  BY COMPARISON, THE LARGEST BANKING ORGANIZATION WITH
HEADQUARTERS IN WASHINGTON, SEATTLE-FIRST NATIONAL BANK, AT THE SAME
TIME HAD ASSETS OF $2.8 BILLION, DEPOSITS OF $2.5 BILLION, AND LOANS OF
$1.4 BILLION.  THE FIGURES SHOWN HERE AND IN THE TEXT FOR NBC AND
SEATTLE-FIRST NATIONAL BANK TAKE INTO ACCOUNT THE OPERATIONS OF THE TWO
BANKS WITHIN AND OUTSIDE THE STATE OF WASHINGTON.  SUBSEQUENT FIGURES,
SEE, E.G., N.3, INFRA, REFLECT OPERATIONS SOLELY WITHIN THE STATE. 

/2/  SEE APP. 1220.  THE FOLLOWING TABLE DEPICTS THE RELATIVE STATUS
OF THE SIX BANKING ORGANIZATIONS OPERATING IN THE SPOKANE METROPOLITAN
AREA FROM 1966 TO MID-1972.  (TABLE OMITTED). 

/3/  SEE APP. 1165.  THE RELATIVE SIZE OF BANKING ORGANIZATIONS IN
WASHINGTON IS INDICATED BY A TABLE INTRODUCED BY THE GOVERNMENT AND SET
FORTH IN THE APPENDIX TO THIS OPINION.  SEE INFRA.  P. 643. 

THE DEGREE OF CONCENTRATION IN COMMERCIAL BANKING IN WASHINGTON HAS
NOT INCREASED SIGNIFICANTLY IN THE LAST DECADE.  FOR THE 12-YEAR PERIOD
ENDING DECEMBER 31, 1971, THE 10 LARGEST BANKING ORGANIZATIONS
INCREASED THEIR AGGREGATE SHARE OF TOTAL DEPOSTIS BY A SINGLE
PERCENTAGE POINT.  WTB'S PERCENTAGE OF TOTAL DEPOSITS IN THE STATE WAS
ESSENTIALLY STABLE FOR THIS PERIOD, DECREASING FROM 1.5% TO 1.4%.  FROM
1960 TO 1971 THE NUMBER OF COMMERCIAL BANKS IN WASHINGTON INCREASED BY
FIVE. 

/4/  SEE N.2, SUPRA. 

/5/  12 U.S.C. 36 (C).  SEE FIRST NATIONAL BANK V. DICKINSON, 396
U.S. 122 (1969); FIRST NATIONAL BANK V. WALKER BANK, 385 U.S. 252
(1966).  CF. UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321,
328 (1963). 

/6/  THIS STATUTE PROVIDES, IN RELEVANT PART, THAT THE ARTICLES OF
INCORPORATION OF ANY BANK TO BE INITIATED IN WASHINGTON SHALL STATE: 

"(7) THAT FOR A STATED NUMBER OF YEARS, WHICH SHALL BE NOT LESS THAN
TEN NOR MORE THAN TWENTY YEARS FROM THE DATE OF APPROVAL OF THE
ARTICLES (A) NO VOTING SHARE OF THE CORPORATION SHALL, WITHOUT THE
PRIOR WRITTEN APPROVAL OF THE SUPERVISOR, BE AFFIRMATIVELY VOTED FOR
ANY PROPOSAL WHICH WOULD HAVE THE EFFECT OF SALE, CONVERSION, MERGER,
OR CONSOLIDATION TO OR WITH, ANY OTHER BANKING ENTITY OR AFFIRMED
FINANCIAL INTEREST, WHETHER THROUGH TRANSFER OF STOCK OWNERSHIP, SALE
OR ASSETS, OR OTHERWISE, (B) THE CORPORATION SHALL TAKE NO ACTION TO
CONSUMMATE ANY SALE, CONVERSION, MERGER, OR CONSOLIDATION IN VIOLATION
OF THIS SUBDIVISION, (C) THIS PROVISION OF THE ARTICLES SHALL NOT BE
REVOKED, ALTERED, OR AMENDED BY THE SHAREHOLDERS WITHOUT THE PRIOR
WRITTEN APPROVAL OF THE SUPERVISOR, AND (D) ALL STOCK ISSUED BY THE
CORPORATION SHALL BE SUBJECT TO THIS SUBDIVISION AND A COPY HEREOF
SHALL BE PLACED UPON ALL CERTIFICATES OF STOCK ISSUED BY THE
CORPORATION." 

/7/  THIS STATUTE PROVIDES: 

"A CORPORATION OR ASSOCIATION ORGANIZE UNDER THE LAWS OF THIS STATE,
OR LICENSED TO TRANSACT BUSINESS IN THE STATE, SHALL NOT HEREAFTER
ACQUIRE ANY SHARES OF STOCK OF ANY BANK, TRUST COMPANY, OR NATIONAL
BANKING ASSOCIATION WHICH, IN THE AGGREGATE, ENABLE IT TO OWN, HOLD, OR
CONTROL MORE THAN TWENTY-FIVE PERCENT OF THE CAPITAL STOCK OF MORE THAN
ONE SUCH BANK, TRUST COMPANY, OR NATIONAL BANKING ASSOCIATION:
PROVIDED, HOWEVER, THAT THE FOREGOING RESTRICTION SHALL NOT APPLY AS TO
ANY LEGAL COMMITMENTS EXISTING ON FEBRUARY 27, 1933:  AND PROVIDED,
FURTHER, THAT THE FOREGOING RESTRICTION SHALL NOT APPLY TO PREVENT ANY
SUCH CORPORATION OR ASSOCIATION WHICH HAS ITS PRINCIPAL PLACE OF
BUSINESS IN THIS STATE FROM ACQUIRING ADDITIONAL SHARES OF STOCK IN A
BANK, TRUST COMPANY, OR NATIONAL BANKING ASSOCIATION IN WHICH SUCH
CORPORATION OR ASSOCIATION OWNED TWENTY-FIVE PERCENT OR MORE OF THE
CAPITAL STOCK ON JANUARY 1, 1961. 

"A PERSON WHO DOES, OR CONSPIRES WITH ANOTHER OR OTHERS IN DOING, AN
ACT IN VIOLATION OF THIS SECTION SHALL BE GUILTY OF A GROSS
MISDEMEANOR.  A CORPORATION THAT VIOLATES THIS SECTION, OR A
CORPORATION WHOSE STOCK IS ACQUIRED IN VIOLATION HEREOF, SHALL FORFEIT
ITS CHARTER IF IT BE A DOMESTIC CORPORATION, OR ITS LICENSE TO TRANSACT
BUSINESS IF IT BE A FOREIGN CORPORATION; AND THE FORFEITURE SHALL BE
ENFORCED IN AN ACTION BY THE STATE BROUGHT BY THE ATTORNEY GENERAL." 

/8/  THE WISDOM OF INFLEXIBLE LIMITATIONS ON DE NOVO BANK EXPANSION
LIKE THOSE IN FORCE IN WASHINGTON HAS BEEN QUESTIONED.  E.G., BAKER,
STATE BRANCH BANK BARRIERS AND FUTURE SHOCK--WILL THE WALLS COME
TUMBLING DOWN?, 91 BANKING L.J. 119 (1974); COMMENT, BANK BRANCHING IN
WASHINGTON: A NEED FOR REAPPRAISAL, 48 WASH. L. REV. 611 (1973).  THEY
INHIBIT GROWTH BY INTERNAL EXPANSION AND COMPEL BANKS TO RESORT TO
MERGERS AND ACQUISITIONS IN ORDER TO ENTER MANY NEW MARKETS.  ALTHOUGH
OTHER REASONS NO DOUBT EXIST, THESE LIMITATIONS OSTENSIBLY ARE DESIGNED
TO PREVENT BANKS FROM ENCOUNTERING FINANCIAL DIFFICULTIES THROUGH
OVEREXTENDING THEMSELVES, AND THEY OFTEN DATE FROM THE PERIOD OF BANK
FAILURES IN THE 1930'S.  IF BANK SAFETY IS THEIR PURPOSE, SUCH
RESTRICTIONS MAY DESERVE RECONSIDERATION TODAY IN LIGHT OF THE
EXTENSIVE RANGE OF REGULATORY CONTROLS THAT OTHERWISE EXIST, INCLUDING
FEDERAL AND STATE SUPERVISION OF THE ISSUANCE OF NEW BANK CHARTERS,
CONTROLS ON INTEREST RATES AND INVESTMENTS, DEPOSIT INSURANCE, AND
REGULAR, INTENSIVE BANK INSPECTIONS.  WHATEVER THEIR EFFICACY, A
QUESTION THAT IS NOT OURS TO RESOLVE, SUCH BARRIERS TO NEW ENTRY ARE A
FACT OF BANKING LIFE IN WASHINGTON.     /9/  SEE 80 STAT. 7, 12 U.S.C.
1828 (C) (2) (A) AND (C) (5).  IF IN A BANK MERGER THE "ACQUIRING,
ASSUMING, OR RESULTING BANK IS TO BE A NATIONAL BANK . . . ," THE
MERGER MUST RECEIVE PRIOR WRITTEN APPROVAL FROM THE COMPTROLLER OF THE
CURRENCY.  12 U.S.C. 1828 (C) (2) (A).  THE COMPTROLLER SHALL NOT
APPRIVE ANY PROPOSED MERGER TRANSACTION "WHOSE EFFECT IN ANY SECTION OF
THE COUNTRY MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY, OR WHICH IN ANY OTHER MANNER WOULD BE IN RESTRAINT
OF TRADE, UNLESS IT FINDS THAT HE ANTICOMPETITIVE EFFECTS OF THE
PROPOSED TRANSACTION ARE CLEARLY OUTWEIGHED IN THE PUBLIC INTEREST BY
THE PROBABLE EFFECT OF THE TRANSACTION IN MEETING THE CONVENIENCE AND
NEEDS OF THE COMMUNITY TO BE SERVED."  12 U.S.C. 1828 (C) (5) (B). 

/10/  SECTION 7 OF THE CLAYTON ACT, 38 STAT. 731, AS AMEMDED, 64
STAT. 1125, 15 U.S.C. 18, PROVIDES IN PERTINENT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

/11/  IN ITS COMPLAINT, THE UNITED STATES ALLEGED THAT NBC AND WTB
WERE IN DIRECT COMPETITION DUE TO THE OVERLAP OF CORRESPONDENTS
SERVICES AND BECAUSE NBC HAD TWO SMALL BRANCH OFFICES LOCATED IN
SPOKANE COUNTY, ALTHOUGH OUTSIDE THE SPOKANE METROPOLITAN AREA.  IN A
PRETRIAL STIPULATION, HOWEVER, THE PARTIES AGREED THAT "THERE IS NO
SUBSTANTIAL EXISTING COMPETITION BETWEEN NBC AND WTB IN THE SPOKANE
METROPOLITAN AREA OR IN ANY SECTION OF THE COUNTRY."  APP. 367. 

/12/  BRIEF FOR UNITED STATES 27 - 28. 

/13/  IN ADOPTING VERBATIM PROPOSED FINDINGS OF FACT IN A
COMPLICATED 7 ANTITRUST ACTION, THE DISTRICT COURT FAILED TO HEED THIS
COURT'S ADMONITION VOICED A DECADE AGO.  UNITED STATES V. EL PASO
NATURAL GAS CO., 376 U.S. 651, 656 - 657 (1964).  THIS HAS ADDED
CONSIDERABLY TO OUR BURDEN OF REVIEWING THE EXTENSIVE RECORD DEVELOPED
IN THIS CASE.  WE HAVE ALSO BEEN HAMPERED BY THE ABSENCE OF TRANSCRIPT
CITATIONS IN SUPPORT OF THE DISTRICT COURT'S FINDINGS.  IT IS TO BE
REMEMBERED THAT IN A DIRECT-APPEAL CASE LIKE THIS ONE, WE MUST APPLY
THE "CLEARLY ERRONEOUS" STANDARD OF FED. RULE CIV. PROC. 52 (A), JUST
AS THE COURTS OF APPEALS MUST IN CASES GOVERNED EXCLUSIVELY BY 28
U.S.C. 1291-1292.  SEE, E.G., UNITED STATES V. GENERAL DYNAMICS CORP.,
415 U.S. 486 (1974).  WE WELCOME ANY ASSISTANCE IN PERFORMANCE OF THE
ROLE, AS DO, UNDOUBTEDLY, THE COURTS OF APPEALS. 

WITH REGARD TO THE SKELETAL CONCLUSIONS OF LAW ENTERED BY THE
DISTRICT COURT, WE REITERATE THAT DIRECT APPEALS OF SUCH CASES, "THE
TRIALS OF WHICH USUALLY RESULT IN LONG AND COMPLEX FACTUAL RECORDS,
COME HERE WITHOUT THE BENEFIT OF ANY SIFTING BY THE COURTS OF
APPEALS."  EL PASO NATURAL GAS CO., SUPRA, AT 663 (SEPARATE OPINION OF
HARLAN, J.).  ACCORDINGLY, IF THE DISTRICT COURT DOES NOT ENTER AN
OPINION ANALYZING THE RELEVANT PRECEDENTS IN LIGHT OF THE RECORD, WE
ARE DEPRIVED OF THIS HELPFUL GUIDANCE. 

/14/  THE COURT'S RESERVATIONS ABOUT THE LEGALITY OF THIS ALLEGED
POTENTIAL METHOD OF ENTRY BY NBC INTO SPOKANE REFLECT THE FACT THAT THE
PROCEDURE IS ANALOGOUS IN SUBSTANCE TO DE NOVO BRANCHING, YET UNDER
STATE LAW NBC IS PROHIBITED FROM ESTABLISHING NEW BRANCHES IN SPOKANE. 
SEE WASH. REV. CODE ANN. 30.40.020.  THE PARTIES ARE IN SHARP
DISAGREEMENT OVER WHETHER THE STATES BRANCHING STATUTE PROSCRIBES THE
SPONSORSHIP AND SUBSEQUENT ACQUISITION OF A NEW BANK.  THE GOVERNMENT
CONTENDS THAT THE FORMATION OF A NEW NATIONAL BANK IS NOT GOVERNED BY
STATE LAW RESTRICTIONS ON BRANCHING, CITING 12 U.S.C. 26,27.  APPELLEES
RESPOND IN ESSENCE THAT THIS WOULD STILL CONSTITUTE SUB ROSA BRANCHING
IN VIOLATION OF STATE LAW.  THE FORMATION OF A NEW NATIONAL BANK IN
SPOKANE WOULD IN ANY EVENT REQUIRE APPROVAL FOR A NEW CHARTER FORM THE
COMPTROLLER OF THE CURRENCY.  IN THIS REGARD, THE DISTRICT COURT GAVE
"GREAT WEIGHT" TO THE TESTIMONY OF THE REGIONAL ADMINISTRATOR OF
NATIONAL BANK IN SPOKANE WOULD BE GRANTED WITHIN THE FORSEEABLE
FUTURE.  1973 - 1 TRADE CAS. 74,496, P. 94,245. 

/15/  THE DISTRICT COURT ALSO ISSUED EXTENSIVE FINDINGS OF FACT
CONCERNING THE "CONVENIENCE AND NEEDS" DEFENSE SET OUT IN THE BANK
MERGER ACT OF 1966, 12 U.S.C. 1828 (C) (5) (B).  THE COURT FOUND IN
ESSENCE THAT NBC, AS A FULL-SERVICE BANK, WOULD BRING TO THE SPOKANE
AREA A BROAD RANGE OF BANKING SERVICES THE WTB, DUE TO ITS LIMITED
SIZE, IS UNABLE TO PROVIDE.  THESE INCLUDED INCREASED LOAN LIMITS,
DIFFERENT TYPES OF LOANS, INTERNATIONAL BANKING SERVICES, COMPUTER
SERVICES, ENHANCED TRUST SERVICES, AND OTHER BENEFITS.  THE COURT'S
FINDINGS ON THIS SUBJECT LED IT TO THE CONCLUSION THAT EVEN IF THE
MERGER VIOLATED THE STANDARDS OF THE CLAYTON ACT, IT WAS NEVERTHELESS
LAWFUL UNDER THE BANK MERGER ACT OF 1966.  1973 - 1 TRADE CAS.  74,496,
PP. 94,247 - 94,251.  IN LIGHT OF OUR CONCLUSION WITH REGARD TO 7 OF
THE CLAYTON ACT, WE DO NOT ADDRESS THE DISTRICT COURT'S FINDING UNDER
THE "CONVENIENCE AND NEEDS" DEFENSE. 

/16/  SEE UNITED STATES V. PHILLIPSBURG NATIONAL BANK, 399 U.S. 350,
359 - 362 (1970); UNITED STATES V. THIRD NATIONAL BANK, 390 U.S. 171,
182 N.15 (1968); UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.,
AT 356 - 357.  SEE ALSO UNITED STATES V. ALCOA, 377 U.S. 271, 275 N.3
(1964); UNITED STATES V. FIRST NATIONAL BANK, 376 U.S. 665, 667
(1964). 

/17/  SEE, E.G., BAKER, POTENTIAL COMPETITION IN BANKING: AFTER
GREELEY, WHAT?, 90 BANKING L.J. 362 (1973); SOLOMON, BANK MERGER POLICY
AND PROBLEMS: A LINKAGE THEORY OF OLIGOPOLY, 89 BANKING L.J. 116
(1972). 

/18/  THE COURT'S FIRST CASE UNDER AMENDED 7 REFERRED TO "SECTION OF
THE COUNTRY" AND "GEOGRAPHIC MARKET" IN THE SAME BREATH, SEE BROWN SHOE
CO. V. UNITED STATES, 370 U.S. 294, 324 (1962) ("A GEOGRAPHIC MARKET
(THE 'SECTION OF THE COUNTRY')"), AS DID THE COURT'S FIRST 7 BANK
MERGER CASE.  SEE PHILADELPHIA NATIONAL BANK, SUPRA, AT 356 ("'SECTION
OF THE COUNTRY' (RELEVANT GEOGRAPHICAL MARKET)")'.  SEE ALSO
PHILLIPSBURG NATIONAL BANK, SUPRA, AT 362 - 365.  IDENTITY BETWEEN
"SECTION OF THE COUNTRY" AND RELEVANT GEOGRAPHIC MARKET HAS BEEN
ASSUMED IN THE 7 POTENTIAL-COMPETITION CASES.  E.G., UNITED STATES V.
FALSTAFF BREWING CORP., 410 U.S. 526, 527 (1973); UNITED STATES V.
CONTINENTAL CAN CO., 378 U.S. 441, 447 (1964). 

/19/  IF A CHALLENGED COMBINATION TAKES THE FORM OF A JOINT VENTURE
BY WHICH TWO FIRMS PLAN TO ENTER A NEW AREA SIMULTANEOUSLY, THE
RELEVANT GEOGRAPHIC MARKET IS THE SECTION OF THE COUNTRY IN WHICH THE
NEWLY FORMED ENTERPRISE WILL MARKET ITS GOODS.  SEE UNITED STATES V.
PENN-OLIN CHEMICAL CO., 378 U.S. 158 (1964). 

/20/  SEE, E.G. UNITED STATES V. PABST BREWING COM., 384 U.S. 546
(1966).  SOME OF THE COURT'S LANGUAGE IN PABST SUGGESTS THAT THE
GOVERNMENT MAY CHALLENGE A MERGER UNDER 7 WITHOUT ESTABLISHING ANY
RELEVANT GEOGRAPHIC MARKET, SEE ID., AT 549 - 550, A SUGGESTION THAT
PROMPTED SEPARATE OPINIONS BY MR. JUSTICE WHITE, ID., AT 555, BY MR.
JUSTICE HARLAN, JOINED BY MR. JUSTICE STEWART, IBID., AND BY MR.
JUSTICE FORTAS.  ID., AT 561.  BUT PABST IN REALITY HELD THAT THE
GOVERNMENT HAD ESTABLISHED THREE RELEVANT MARKETS IN WHICH THE ACQUIRED
FIRM ACTUALLY MARKETED ITS PRODUCTS--A SINGLE STATE, A MULTISTATE AREA,
AND THE NATION AS A WHOLE.  SEE ID., AT 550 - 551.  AND IN THAT CASE
THE ACQUIRING FIRM WAS AN ACTUAL COMPETITOR OF THE ACQUIRED FIRM IN ALL
THREE RELEVANT GEOGRAPHIC MARKETS.  IBID.  THUS WHILE PABST STANDS FOR
THE PROPOSITION THAT THERE MAY BE MORE THAN ONE RELEVANT GEOGRAPHIC
MARKET, IT DID NOT ABANDON THE TRADITIONAL VIEW THAT FOR PURPOSES OF 7
"SECTION OF THE COUNTRY" MEANS "RELEVANT GEOGRAPHIC MARKET" AND THE
LATTER CONCEPT MEANS THE AREA IN WHICH THE RELEVANT PRODUCT IS IN FACT
MARKETED BY THE ACQUIRED FIRM. 

/21/  THE RECORD DEMONSTRATES IN SEVERAL WAYS THE LOCAL CHARACTER OF
THE AREA OVER WHICH WTB EXERTS A COMPETITIVE INFLUENCE.  FOR EXAMPLE,
AS OF JANUARY 31, 1972, 90.1% OF WTB'S DEPOSITS ACCOUNTS ORIGINATED
WITHIN THE SPOKANE METROPOLITAN AREA; 4.1% ORIGINATED ELSEWHERE IN
SPOKANE COUNTY; AND THE REMAINDER CAME FROM EASTERN WASHINGTON, WESTERN
WASHINGTON, AND OTHER STATES.  APP. 1861. 

/22/  AS MR. JUSTICE MARSHALL NOTED IN FALSTAFF BREWING CORP.,
SUPRA, AT 555 (SEPARATE OPINION), "REMOTE POSSIBILITIES ARE NOT
SUFFICIENT TO SATISFY THE TEST SET FORTH IN 7."  RATHER, THE LOSS OF
COMPETITION "WHICH IS SUFFICIENTLY PROBABLE AND IMMINENT" IS THE
CONCERN OF 7.  UNITED STATES V. CONTINENTAL CAN CO., SUPRA, AT 458. 

/23/  WE PUT ASIDE CASE WHERE AN ACQUIRING FIRM'S MARKET POWER,
EXISTING CAPABILITIES, AND PROPOSED MERGER PARTNER ARE SUCH THAT THE
MERGER WOULD PRODUCE AN ENTERPRISE LIKELY TO DOMINATE THE TARGET MARKET
(A CONCEPT KNOWN AS ENTRENCHMENT).  SEE FTC V. PROCTER & GAMBLE CO.,
386 U.S. 568 (1967).  CF. FALSTAFF BREWING CORP., SUPRA, AT 531.  THERE
IS NO ALLEGATION THAT THE INSTANT MERGER WOULD PRODUCE ENTRENCHMENT IN
THE SPOKANE MARKET. 

/24/  THE MERGER DECLARED UNLAWFUL IN EL PASO "REMOVED NOT MERELY A
POTENTIAL, BUT RATHER AN ACTUAL, COMPETITOR."  TURNER, CONGLOMERATE
MERGERS AND SECTION 7 OF THE CLAYTON ACT, 78 HARV. L. REV. 1313, 1371
(1965).  ACCORD, BERGER & PETERSON, CONGLOMERATE MERGERS AND CRITERIA
FOR DEFINING POTENTIAL ENTRANTS, 15 ANTITRUST BULLETIN 489, 498 (1970);
DAVIDOW, CONGLOMERATE CONCENTRATION AND SECTION SEVEN: THE LIMITATIONS
OF THE ANTI-MERGER ACT, 68 COL. L. REV. 1231, 1242 N.36 (1968).  PRIOR
TO THE ACQUISITION AT ISSUE IN EL PASO, THE ACQUIRED FIRM HAD ENTERED A
TENTATIVE SUPPLY CONTRACT WITH ONE OF THE ACQUIRING FIRM'S SUBSTANTIAL
CUSTOMERS IN THE RELEVANT MARKET, COMPELLING THE ACQUIRING FIRM TO MAKE
SIGNIFICANT PRICE AND DELIVERY CONCESSIONS IN ORDER TO RETAIN THAT
CUSTOMER.  376 U.S., AT 654 - 655, 659.  THE ACQUIRED FIRM WAS THUS
"SHOWN BY (THE) RECORD TO HAVE BEEN A SUBSTANTIAL FACTOR IN THE
(RELEVANT) MARKET AT THE TIME IT WAS ACQUIRED . . . ."  ID., AT 658. 
THE DEGREE OF ENTRY THAT THE ACQUIRED FIRM HAD ACHIEVED INTO THE MARKET
OF THE ACQUIRING FIRM DISTINGUISHES EL PASO FROM SUBSEQUENT CASES TRULY
PRESENTING A POTENTIAL-COMPETITION SITUATION.  IT ALSO DISTINGUISHES EL
PASO FROM THE INSTANT CASE, WHERE THE RECORD DEMONSTRATES NO ANALOGOUS
PENETRATION OF WTB'S MARKET BY NBC OR OF NBC'S MARKET BY WTB. 

/25/  SEE ALSO FORD MOTOR CO. V. UNITED STATES, 405 U.S. 562, 567 -
568 (1972); ID., AT 591 - 592 (SEPARATE OPINION OF BURGER, C.J.); FTC
V. PROCTER & GAMBLE CO., SUPRA; UNITED STATES V. CONTINENTAL CAN CO.,
SUPRA; UNITED STATES V. PENN-OLIN CHEMICAL CO., SUPRA. 

/26/  SEE BRODLEY, OLIGOPOLY POWER UNDER THE SHERMAN AND CLAYTON
ACTS--FROM ECONOMIC THEORY TO LEGAL POLICY, 19 STAN.  L. REV. 285, 357
358 (1967). 

/27/  SEE ALSO, ROBINSON ANTITRUST DEVELOPMENTS: 1973, 74 COL. L.
REV. 163, 180 - 190 (1974); BERGER & PETERSON, SUPRA; DAVIDOW, SUPRA;
TURNER, 78 HARV. L. REV., AT 1362 - 1386; HALE & HALE, POTENTIAL
COMPETITION UNDER SECTION 7: THE SUPREME COURT'S CRYSTAL BALL, 1964
SUP. CT. REV. 171; NOTE, UNITED STATES V. FALSTAFF BREWING CORPORATION:
POTENTIAL COMPETITION RE-EXAMINED, 72 MICH. L. REV. 837 

(1974). 

/28/  SEE 410 U.S., AT 537:  "WE LEAVE FOR ANOTHER DAY THE QUESTION
OF THE APPLICABILITY OF 7 TO A MERGER THAT WILL LEAVE COMPETITION IN
THE MARKETPLACE EXACTLY AS IT WAS, NEITHER HURT NOT HELPED, AND THAT IS
CHALLENGEABLE UNDER 7 ONLY ON GROUNDS THAT THE COMPANY COULD, BUT DID
NOT, ENTER DE NOVO OR THROUGH 'TOE-HOLD' ACQUISITION AND THAT THERE IS
LESS COMPETITION THAN THERE WOULD HAVE BEEN HAD ENTRY IN SUCH A
MANNER." 

/29/  SEE, E.G., KINTER & HANSEN, A REVIEW OF THE LAW BANK MERGERS,
14 B.C. IND. & COM. L. REV. 213 (1972); ALCORN, PHILLIPSBURG AND BEYOND
-DEVELOPING TRENDS IN SUBSTANTIVE STANDARDS FOR BANK MERGERS, HOUSTON
L. REV. 417 (1972); SHULL & HORVITZ, THE BANK MERGER ACT OF 1960: A
DECADE AFTER, 16 ANTITRUST BULLETIN 859 (1971); LIFLAND, THE SUPREME
COURT, CONGRESS, AND BANK MERGERS, 32 LAW & CONTEMP.  PROB.  15 (1967);
VIA, ANTITRUST AND THE AMENDED BANK MERGER AND HOLDING COMPANY ACTS:
THE SEARCH FOR STANDARDS, 53 VA. L. REV. 1115 (1967).  CF. WU &
CONNELL, MERGER MERGERS, 59 VA. L. REV. 860 (1973). 

/30/  IN ADDITION TO THE DISTRICT COURT DECISION IN THIS CASE, SEE
UNITED STATES V. CONNECTICUT NATIONAL BANK, 362 F. SUPP. 240 "CONN. 
1973), POST, P. 656; UNITED STATES V. UNITED VIRGINIA BANKSHARES, INC.,
347 F. SUPP. 891 (ED VA. 1972); UNITED STATES V.FIRST NATIONAL
BANCORPORATION, INC., 329 F. SUPP. 1003 (COLO. 1971), AFF'D PER CURIAM,
410 U.S. 577 (1973); UNITED STATES V. IDAHO FIRST NATIONAL BANK, 315 F.
SUPP. 261 (IDAHO 1970); UNITED STATES V. FIRST NATIONAL BANK OF
MARYLAND, 310 F. SUPP. 157 ( MD. 1970); UNITED STATES V. FIRST NATIONAL
BANK OF JACKSON, 301 F. SUPP. 1161 (SD MISS.  1969); UNITED STATES V.
CROCKER-ANGLO NATIONAL BANK, 277 F. SUPP. 133 (ND CAL. 1967) (THREE
JUDGE COURT). 

/31/  SEE ROBINSON, 74 COL. L. REV., AT 189 N.162; SHENEFIELD,
ANNUAL SURVEY OF ANTITRUST DEVELOPMENTS--THE YEAR OF THE REGULATED
INDUSTRY, 31 WASH. & LEE L. REV. 1, 37 - 39 (1974); HALE & HALE, 1964
SUP. CT. REV., AT 179. 

/32/  THIS COURT'S POTENTIAL-COMPETITION CASES HAVE REPEATEDLY NOTED
THIS FACTOR.  E.G., FTC V. PROCTER & GAMBLE CO., 386 U.S., AT 580;
UNITED STATES V. CONTINENTAL CAN CO., 378 U.S., AT 464 - 465.  SEE J.
BAIN, INDUSTRIAL ORGANIZATION 8 (2D ED. 1968); "THE CONDITION OF ENTRY
. . .  DETERMINES THE RELATIVE FORCE OF POTENTIAL COMPETITION AS AN
INFLUENCE OR REGULATOR ON THE CONDUCT AND PERFORMANCE OF SELLERS
ALREADY ESTABLISHED IN A MARKET."  SEE P. AREEDA, ANTITRUST ANALYSIS
517 (1967): "THE SIGHT OF A PARTICULAR FIRM 'WAITING AT THE MARKET'S
EDGE' MAY EMPHASIZE THE ENTRY THREAT, BUT IT IS EASE OF ENTRY, NOT
NECESSARILY AN IDENTIFIABLE POTENTIAL ENTRANT, THAT LIMITS PRESENT
MARKET POWER BY REMINDING EXISTING FIRMS THAT HIGH PROFITS WILL ATTRACT
OUTSIDERS."     /33/  PHILADELPHIA NATIONAL BANK, 374 U.S., AT 375
(HARLAN, J., DISSENTING). 

/34/  THE MARKETING OF MANY FORMS OF COMMERCIAL BANK SERVICES IS
CONTROLLED BY GOVERNMENT REGULATION.  FOR EXAMPLE, REGULATION, NOT
CONCENTRATION IN A BANKING MARKET, PRODUCES PARALLELISM WITH RESPECT TO
SUCH IMPORTANT ELEMENTS OF THE BANKING BUSINESS AS INTEREST ALLOWED ON
SAVINGS ACCOUNTS AND INTEREST CHARGED ON HOME MORTGAGE LEANS.  THERE
ARE ALSO MANY INDIVIDUALIZED JUDGMENTS IN THE BANKING BUSINESS, SUCH AS
THE DECISION WHETHER TO EXTEND CREDIT IN VARIOUS CASES, THAT ARE NOT
PRONE TO PARALLEL BEHAVIOR REGARDLESS OF THE CONCENTRATION OF A
MARKET.  NEVERTHELESS, UNFETTERED COMPETITION AMONG BANKS DOES EXIST IN
A NUMBER OF AREAS IMPORTANT TO THE PUBLIC, AS EVIDENCED BY THE MUCH
ADVERTISED DIFFERENCES IN VARIOUS FORMS OF SERVICES OFFERED BY BANKS
WITHIN THE SAME GEOGRAPHIC MARKET.  IT IS WITH REGARD TO THE LATTER
ECONOMIC ACTIVITY THAT ACTUAL MARKET BEHAVIOR, AND ESPECIALLY THE
PRESENCE OR ABSENCE OF SIGNIFICANT PARALLEL CONDUCT, BECOMES RELEVANT
IN THIS TYPE OF CASE. 

/35/  APP. 534. 

/36/  BRIEF FOR UNITED STATES 27 - 28. 

/37/  THE GOVERNMENT CALLED AS A WITNESS A FORMER STATE SUPERVISOR
OF BANKING.  ON CROSS-EXAMINATION, THIS WITNESS TESTIFIED THAT IF THE
PURPOSE OF THE ORGANIZATION OF A NEW BANK WERE TO ESTABLISH A POTENTIAL
BRANCH FOR ANOTHER BANK, HE WOULD NOT REGARD THAT AS A PROPER OBJECTIVE
UNDER STATE CHARTERING STATUTES.  APP. 768 - 770. 

/38/  CF. COMMENT, 48 WASH. L. REV. 611, 626 - 628 (1973). 

/39/  THE GOVERNMENT DID NOT ESTABLISH THAT NBE HAS NEVER ACQUIRED A
BANK THAT IT HAD ASSISTED IN STARTING.  IT DID OFFER SUBSTANTIAL
EVIDENCE THAT NNC HAS ASSISTED IN THE FORMATION OF A NEW BANK IN SOUTH
CENTRAL WASHINGTON, OUTSIDE ANY MAJOR METROPOLITAN AREA.  NBC UNDERTOOK
THIS EFFORT IN RESPONSE TO THE DESIRE OF ONE OF ITS MAJOR CLIENTS TO
HAVE A BANK IN THAT AREA.  BUT NBC HAS NO CONTRACTUAL RIGHT TO ACQUIRE
THAT BANK, AND INDEED THERE IS NO GUARANTEE THAT IT WILL ULTIMATELY BE
SUCCESSFUL IN ACQUIRING IT. 

/40/  APP. 614. 

/41/  DURING THE TRIAL, THE DISTRICT JUDGE COMMENTED FROM THE BENCH
THAT HE COULD NOT SEE "ANYTHING CIVILLY WRONG" WITH THE GOVERNMENT'S
PROPOSED SPONSORSHIP-ACQUISITION APPROACH.  HE APPARENTLY ASSUMED THAT
IT WAS POSSIBLE.  APP. 870.  IN ITS FINDINGS, THE COURT TOOK THE VIEW
THAT SUCH A METHOD OF ENTRY WAS NOT ECONOMICALLY FEASIBLE, IN LIGHT OF
STATE-LAW RESTRICTIONS ON BRANCHING FROM A BRANCH AND THE
CHARACTERISTICS OF THE BANKING BUSINESS.  1973 - 1 TRADE CAS. 74,496,
P. 94,245. 

/42/  NBC'S ACQUISITION OF WTB, BY COMPARISON, WILL GIVE IT EIGHT
BANKING OFFICES IN SPOKANE AND A SIGNIFICANT MARKET SHARE.  FROM THIS
POSITION, NBC WILL BE ABLE TO HAVE A SUBSTANTIAL IMPACT ON THE SPOKANE
MARKET. 

THE GOVERNMENT SUGGESTS THAT A SPONSORED BANK COULD CREATE A NUMBER
OF BRANCHES BEFORE BEING ACQUIRED.  BRIEF FOR UNITED STATES 50 N.47. 
THE GOVERNMENT OFFERED NO PROOF THAT THIS HAS EVER OCCURED IN
WASHINGTON.  UNDERTAKING SPONSORSHIP ON SUCH A SCALE IS PROBABLY
UNREALISTIC, AND IT WOULD MULTIPLY THE PROBLEMS OF OBTAINING APPROVAL
OF A SPONSORSHIP PLAN FROM BANK REGULATORY AGENCIES.  IN ANY EVENT,
NOTHING IN 7 OF THE CLAYTON ACT REQUIRES A FIRM TO GO TO SUCH LENGHTS
IN ORDER TO AVOID A MERGER THAT HAS NOT EFFECT ON CONCENTRATION IN THE
RELEVANT MARKET IN THE FIRST PLACE. 

/43/  E.G., UNITED STATES V. FALSTAFF BREWING CORP., 410 U.S. 526
(1973); FTC V. PROCTER & GAMBLE CO., 386 U.S., AT 580. 

/44/  THE THIRD SMALL BANK IN SPOKANE IS A BRANCH OF A LARGE
NATIONALLY CHARTERED BANK IN SEATTLE, WHICH IN TURN IS OWNED BY A LARGE
HOLDING COMPANY.  THERE IS NO ALLEGATION THAT THIS SMALL BANK IS A
POTENTIAL FOOTHOLD ACQUISITION.  THE GOVERNMENT PRESSES ITS FOOTHOLD
ACQUISITION APPROACH WITH CONSIDERABLY LESS VIGOR THAN ITS SPONSORSHIP
THEORY, WHICH MAY REFLECT THE FACT THAT UNDER THE FORMER APPROACH THE
TOTAL NUMBER OF BANKING ORGANIZATIONS IN SPOKANE WOULD REMAIN THE
SAME. 

/45/  APP. 1103. 

/46/  C.F. FALSTAFF BREWING CORP., SUPRA, AT 561 (SEPARATE OPINION
OF MARSHALL, J.):  "IF THE COMPANY WOULD HAVE REMAINED OUTSIDE THE
MARKET BUT FOR THE POSSIBILITY OF ENTRY BY ACQUISITION, AND IF IT IS
EXERTING NO INFLUENCE AS A PERCEIVED POTENTIAL ENTRANT, THEN THERE WILL
NORMALLY BE NO COMPETITIVE LOSS WHEN IT ENTERS BY ACQUISITION.  INDEED,
THERE MAY EVEN BE A COMPETITIVE GAIN TO THE EXTENT THAT IT STRENGTHENS
THE MARKET POSITION OF THE ACQUIRED FIRM."  (FOOTNOTE OMITTED.) 

/47/  APP. 931. 

/48/  ID., AT 933. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THIS CASE. 

(FOR APPENDIX TO OPINION OF THE COURT, SEE POST, P. 643.) 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN DISSENTING. 

FOR THE SECOND TIME THIS TERM, THE COURT'S NEW ANTITRUST MAJORITY
HAS CHIPPED AWAY AT THE POLICIES OF 7 OF THE CLAYTON ACT.  IN UNITED
STATES V. GENERAL DYNAMICS CORP., 415 U.S. 486 (1974), THE MAJORITY
SUSTAINED THE FAILING-COMPANY DEFENSE IN A NEW GUISE.  HERE, IT
REDEFINES THE ELEMENTS OF POTENTIAL COMPETITION AND DRAMATICALLY
ESCALATES THE BURDEN OF PROVING THAT A MERGER "MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION"  WITHIN THE MEANING OF 7. 

THAT WE ARE DEALING WITH A SEVERELY CONCENTRATED COMMERCIAL BANKING
MARKET IN THE SPOKANE METROPOLITAN AREA IS CONCEDED.  THE COURT ALSO
PROCEEDS ON THE BASIS THAT IT WAS OPEN TO THE GOVERNMENT TO MAKE ITS
CASE BY PROVING THAT THE NBC-WTB MERGER WOULD PROBABLY CAUSE A
SUBSTANTIAL LESSENING OF COMPETITION IN EITHER ONE OF TWO WAYS.  FIRST,
IT COULD BE PROVED THAT NBC, WITH THE RESOURCES AND DESIRE TO ENTER THE
SPOKANE MARKET, WOULD PROBABLY HAVE ENTERED THE MARKET EITHER BY
ACQUIRING ONE OF THE SMALL SPOKANE BANKS OR BY SPONSORING A NEW BANK
AND ULTIMATELY ACQUIRING IT.  THE MERGER THUS DEPRIVED THE SPOKANE
MARKET OF A NEW COMPETITOR, AND PRODUCED THE REQUISITE ANTICOMPETITIVE
EFFECT.  SECOND, IT COULD BE SHOWN THAT NBC'S RESOURCES AND INTEREST IN
ENTERING THE SPOKANE MARKET WERE SO OBVIOUS TO OR RECOGNIZED BY THOSE
ALREADY IN THE MARKET THAT, AS A POTENTIAL COMPETITOR WAITING IN THE
WINGS, NBC VERY PROBABLY EXERCISED A RESTRAINING INFLUENCE ON
ANTICOMPETITIVE PRACTICES IN THE CONCENTRATED SPOKANE BANKING MARKET. 

THE MAJORITY DOES NOT QUIBBLE ABOUT THE FACT OF NBC'S RESOURCES AND
ITS INCENTIVE TO EXTEND ITS BANKING ACTIVITIES INTO SPOKANE.  NBC IS
THE STATE'S SECOND LARGEST BANKING ORGANIZATION WITH TOTAL ASSETS OF
$1.8 BILLION AS OF 1971.  IT HAS BRANCHED WIDELY IN THE STATE OF
WASHINGTON, HAVING A TOTAL OF 107 BRANCHES, 15 OF THEM WITHIN 100 MILES
OF SPOKANE.  TWO OTHER SEATTLE BANKING ORGANIZATIONS WERE ALREADY
OPERATING IN SPOKANE; AND NBC ITSELF HAD SERIOUSLY NEGOTIATED FOR AN
ACQUISITION IN THAT MARKET.  GIVEN THE OPPORTUNITY, NBC WOULD OBVIOUSLY
ENTER SPOKANE.  UNDER WASHINGTON LAW, IT COULD NOT BRANCH THERE; BUT IT
WAS FREE TO ACQUIRE ANOTHER BANK, GIVEN CONSENT OF BANKING
AUTHORITIES.  THAT CONSENT WAS OBTAINED FOR THE ACQUISITION INVOLVED IN
THIS CASE, AND IT MAY FAIRLY BE ASSUMED THAT IT COULD HAVE BEEN
OBTAINED FOR THE ACQUISITION, NOT OF A MAJOR COMPETITOR CONTRIBUTING TO
THE CONCENTRATION IN THE SPOKANE MARKET, BUT OF ONE OF THE SMALLER
BANKS--A SO-CALLED "TOEHOLD"  POSITION IN THE MARKET. 

ANOTHER MODE OF ENTRY INTO SPOKANE WAS ALSO AVAILABLE TO NBC.  IT
COULD HAVE BEEN INSTRUMENTAL IN FORMING A NEW BANK IN THAT MARKET AND
IN DUE COURSE HAVE MERGED WITH THE "SPONSORED" INSTITUTION.  IT IS
ARGUED THAT THIS ROUTE WAS ALL BUT LEGALLY UNAVAILABLE TO NBC, /1/  BUT
THE SPONSORED-BANK METHOD OF EXPANSION HAS OCCURED FREQUENTLY IN THE
STATE OF WASHINGTON.  THE DISTRICT COURT DID NOT HOLD SPONSORSHIP
BARRED BY STATE LAW.  THIS COURT ALSO REFRAINS FROM SO HOLDING AND
PROCEEDS ON THE ASSUMPTION THAT THE SPONSORED-BANK ROUTE WAS AVAILABLE
TO NBC.  UNDER STATE LAW, A MERGER WITH THE NEW BANK COULD NOT TAKE
PLACE, WITHOUT THE CONSENT OF BANKING AUTHORITIES, PRIOR TO 10 YEARS
FROM THE DATE THE NEW BANK BEGAN OPERATIONS; BUT CONSENT TO MERGE PRIOR
TO THAT TIME HAS BEEN OBTAINED IN THE PAST. 

THUS, ALTHOUGH BRANCHING INTO SPOKANE WAS NOT LEGALLY FEASIBLE,
THERE WERE OTHER MODES OF ENTRY NO LESS ATTRACTIVE OR LESS FEASIBLE
THAN ENTERING BY ESTABLISHING A NEW BRANCH.  IT IS INCREDIBLE THAT IF
BRANCHING INTO SPOKANE HAD BEEN ALLOWABLE NBC WOULD NOT HAVE ENTERED IN
THIS WAS.  IT IS EQUALLY UNLIKELY THAT ABSENT THE UNDERSTANDABLY
ATTRACTIVE MERGER WITH WTB, NBC WOULD NOT HAVE PROCEEDED TO ACQUIRE A
SMALLER BANK OR TO BE INSTRUMENTAL IN FORMING A NEW SPONSORED BANK. 

THE COURT APPARENTLY ASSUMES THIS TO BE THE CASE, BUT GOES ON TO
HOLD THAT THE GOVERNMENT'S PROOF FAILED BECAUSE NEITHER A SMALL NEW
BANK NOR ONE OF THE EXISTING SMALL BANKS, IF ACQUIRED, HAD A REALISTIC
CHANCE OF DECONCENTRATING THE SPOKANE MARKET TO ANY SUBSTANTIAL
EXTENT.  ALSO ABSENT THE CAPABILITY OF MAKING SUBSTANTIAL INROADS ON
THE MARKET SHARES OF THE PRINICPAL BANKS, IT IS SAID THAT THOSE BANKS
HAD NOTHING TO FEAR FROM NBC AS A POTENTIAL COMPETITOR AND THAT NBC
THEREFORE HAD NO CURRENT INFLUENCE ON COMPETITIVE PRACTICES IN THE
SPOKANE MARKET.  I PART COMPANY WITH THE MAJORITY AT THIS POINT.  THE
SPOKANE MARKET WAS HIGHLY CONCENTRATED.  NBC HAD THE RESOURCES AND THE
DESIRE TO ENTER THE MARKET.  THERE WERE NO IMPENETRABLE LEGAL OR
ECONOMIC BARRIERS TO ITS DOING SO; AND IT IS SUFFICIENTLY PLAIN FROM
THE RECORD THAT ABSENT MERGER WITH WTB, NBC COULD AND WOULD EITHER HAVE
MADE A TOEHOLD ENTRY OR BEEN INSTRUMENTAL IN ESTABLISHING A SPONSORED
BANK IN SPOKANE.  BUT NBC CHOSE TO MERGE WITH A LARGER BANK AND TO
DEPRIVE THE MARKET OF THE COMPETITION IT WOULD HAVE OFFERED HAD IT
ENTERED IN EITHER OF TWO WAYS.  IN MY OPINION, THIS MADE OUT A
SUFFICIENT PRIMA FACIE CASE UNDER 7, WHICH, ABSENT EFFECTIVE REBUTTAL,
ENTITLED THE UNITED STATES TO JUDGEMENT. 

THE COURT'S SOLE ANSWER TO THE GOVERNMENT'S PROOF IS THAT EVEN IF
NBC WOULD HAVE ENTERED BY ACQUISITION OR DE NOVO THROUGH A SPONSORED
BANK, IT WOULD HAVE "LITTLE REALISTIC HOPE OF ULTIMATELY PRODUCING
DECONCENTRATION OF THE SPOKANE MARKET."  THIS WAS BECAUSE UNDER
WASHINGTON LAW AFTER ACQUIRING AN EXISTING OR NEWLY FORMED BANK, NBC
COULD NOT BRANCH FROM THAT INSTITUTION BUT WOULD BE CONFINED TO THE
BANKING OFFICES WHICH IT ACQUIRED AT THE TIME OF THE MERGER.  IN THE
COURT'S OPINION, NBC, WITHOUT BRANCHING, WOULD HAVE "NO REASONABLE
LIKELIHOOD OF DEVELOPING A SIGNIFICANT SHARE OF THAT MARKET," AND THE
GOVERNMENT'S CASE THEREFORE FAILED. 

I CANNOT ACCEPT THE PER SE VIEW THAT , WITHOUT BRANCHING, AN ABLE
AND WILLING NEWCOMER TO THE BANKING MARKET CONNOT BE CONSIDERED A
SUFFICIENTLY SUBSTANTIAL COMPETITIVE INFLUENCE, IMMEDIATELY OR IN THE
FORESEEABLE FUTURE, SO THAT ITS LOSS TO THE MARKET WOULD WARRANT
APPLICATION OF 7.  THIS IS PARTICULARLY TRUE IF THE PUTATIVE ENTRANT IS
A LARGE AND SUCCESSFUL BANKING ORGANIZATION WITH WIDE EXPERIENCE IN
DEVELOPING NEW MARKETS. 

SMALL BANKS CAN BE PROFITABLE, AND THEY CAN GROW RAPIDLY.  THE
EXPERIENCE OF THE THREE SMALL BANKS IN SPOKANE PROVES THIS.  EACH OF
THEM IS A PROFITABLE BANK.  THE PROFITS OF AMERICAN COMMERCIAL BANK,
FOR EXAMPLE, WITH HEADQUARTERS IN DOWNTOWN SPOKANE, ROSE FROM $27,740
IN 1966 TO $132,527 IN 1971.  THE DEPOSITS OF EACH OF THE THREE SMALL
BANKS HAVE GROWN.  FROM 1966 TO 1972, TOTAL BANK DEPOSITS IN THE
SPOKANE METROPOLITAN AREA ROSE FROM $379.2 MILLION TO  $513.5 MILLION,
A GROWTH OF 35% IN SIX YEARS.  SPOKANE WOULD NOT APPEAR TO BE A
STAGNANT BANKING MARKET, AND IT PROVIDES OPPORTUNITIES FOR SMALLER
BANKING CONCERNS.  THE DEPOSITIS IN THE THREE SMALL BANKS DURING THE
SAME SIX YEARS GREW FROM $14.9 MILLION TO $39.4 MILLION, AN INCREASE OF
APPROXIMATELY 160%.  THEIR MARKET SHARE, ALTHOUGH REMAINING RELATIVELY
SMALL, INCREASED FROM 3.9% TO 7.8%.  OF COURSE, DEPOSITS IN THE THREE
LARGE BANKING ORGANIZATIONS ALSO GREW.  TWO OF THEM INCREASED THEIR
MARKET SHARES VERY SLIGHTLY, BUT THE THIRD LOST GROUND FROM 38.3% TO
31.6%, FOR A COMBINED DECLINE OF THE THREE FROM 96% TO 92.3%.  THE
SMALL BANKS THUS MORE THAN HELD THEIR OWN IN THE SPOKANE MARKET.  THIS
SHOWING OF THE SMALLER BANKS HARDLY INDICATES SUCH IMPOTENCE ON THE
PART OF SMALL COMPETITORS THAT A NEW ENTRANT IN THE MARKET SHOULD
NECESSARILY BE DEEMED TO BE WITHOUT INFLUENCE IN THE MARKET AND TO BE
BEYOND RECOGNITION UNDER 7.  /2/ 

IF SEATTLE-FIRST NATIONAL BANK, WITH 31.6% OF THE DEPOSITS IN 1972,
OR WASHINGTON BANCSHARES, INC., WITH 42.1%, HAD ACQUIRED EITHER
AMERICAN COMMERCIAL BANK OR FARMERS & MERCHANTS BANK, WITH 3.1% AND
2.5% RESPECTIVELY OF SPOKANE BANK DEPOSTIS, THE MERGER WOULD HAVE BEEN
ANTICOMPETITIVE AND FORBIDDEN BY 7, UNLESS SAVED BY THE BENEFITS-AND
NEEDS PROVISO OF THE BANK MERGER ACT.  UNITED STATES V. PHILADELPHIA
NATIONAL BANK, 374 U.S. 321 (1963).  DEPRIVING THE MARKET OF A NEW
COMPETITOR THAT COULD ACHIEVE SIMILAR STATUS IN A RELATIVELY SHORT
PERIOD OF TIME SHOULD NOT BE SO READILY PLACED BEYOND THE REACH OF 7
WHEN CONSIDERING THE APPLICATION OF THE DOCTRINE OF POTENTIAL
COMPETITION TO MARKET-EXTENSION MERGERS. 

THE DETAILS ON THE RELATIVE SIZE OF INDIVIDUAL BANK BRANCHES IN
SPOKANE OR ELSEWHERE IN METROPOLITAN AREAS OF THE STATE ARE NOT IN THE
RECORD; BUT IT IS UNBELIEVABLE THAT THERE ARE NO BRANCHES THAT HAVE
STARTED VERY SMALL AND GROWN VERY LARGE.  NEW BRANCHES MUST MAKE THEIR
WAS, OFTEN IN HEAD-TO-HEAD COMPETITION WITH OTHER BANKS.  SOME ARE MORE
SUCCESSFUL THAN OTHERS, AND I CANNOT ACCEPT, AS A PER SE LEGAL RULE,
THE NOTION THAT A NEW BANK SPONSORED BY NBC IN DOWNTOWN SPOKANE OR
ELSEWHERE IN THE CITY MUST BE FOREVER DEEMED TO BE WITHOUT SUBSTANTIAL
COMPETITIVE IMPACT ON THE BANKING COMMUNITY.  /3/  IT IS INCREDIBLE TO
ME THAT THE PRESENCE OF A MAJOR SEATTLE BANK LIKE NBC IN DOWNTOWN
SPOKANE COULD OR WOULD BE IGNORED BY THE ENTRENCHED BANKING POWERS OR
SHOULD BE IGNORED FOR THE PURPOSES OF APPLYING 7 OF THE CLAYTON ACT. 
NBC HAS 15 BRANCHES WITHIN A 100-MILE RADIUS OF SPOKANE.  THOSE
BRANCHES HAVE $103 MILLION IN TOTAL DEPOSITS, INCLUDING $4.4 MILLION
FROM SPOKANE CUSTOMERS.  TWO OF THESE BRANCHES ARE IN SPOKANE COUNTY
AND BETWEEN THEM HAVE $11 MILLION IN DEPOSITS.  THEY ALSO HAVE LOANS
TOTALING $10.2 MILLION TO SPOKANE INTERESTS.  NBC IS A MAJOR FINANCIAL
INSTITUTION WITH LARGE LENDING LIMITS AND OFFERING A FULL LINE OF
COMMERCIAL BANKING SERVICES.  IT IS OBVIOUSLY EQUIPPED TO PENETRATE AND
COMPETE VIGOROUSLY IN THE SPOKANE LENDING MARKET WHOLLY ASIDE FROM HOW
FAST DEPOSITS MIGHT GROW IN A NEWLY ESTABLISHED OR ACQUIRED SPOKANE
BANK.  IT IS QUITE UNTENABLE TO ASSERT THAT THE COMPETITION THAT MIGHT
BE OFFERED IN THE SPOKANE LENDING MARKET BY A NEW BANK FORMED BY THIS
OBVIOUSLY VIGOROUS COMPETITOR IS TOO INSIGNIFICANT TO WARRANT THE
PROTECTIONS OF 7.  /4/ 

THE AVAILABILITY OF BRANCHING IS, OF COURSE, AND IMPORTANT
COMPETITIVE CONSIDERATION, BUT IT SHOULD NOT BE FORGOTTEN THAT AMERICAN
COMMERCIAL BANK, HEADQUARTERD IN DOWNTOWN SPOKANE, HAD FOUR BRANCHES
AND IF ACQUIRED BY NBC WOULD GIVE THAT BANK A SUBSTANTIAL OPERATING
CAPACITY IN SPOKANE.  THE MAJORITY, NEVERTHELESS, EVEN ASSUMING THE
ACQUISITION OF THIS BANK BY NBC, INSISTS ON ITS OWN VIEW OF COMPETITIVE
REALITY AND HOLDS THAT THE LOSS OF NBC AS A COMPETITOR IN PLACE OF
AMERICAN MUST BE DEEMED AN INSIGNIFICANT LOSS TO COMPETITION.  THIS IS
TRUE EVEN THOUGH ONE OF THE MAJOR COMPETITORS, SEATTLE-FIRST NATIONAL
BANK, HAS ONLY SEVEN BRANCHES AND UNDER THE STATE LAW ALREADY REFERRED
TO IT IS CONFINED TO ITS EXISTING BRANCHES. 

IT IS ALSO TRUE THAT IF NBC ENTERED IN SPOKANE BY SPONSORING A NEW
BANK, THE NEW BANK ITSELF COULD LEGALLY BRANCH AND CREATE THE NECESSARY
BRANCH INFRASTRUCTURE FOR AS LONG AS IT WAS NOT ACQUIRED BY NBC OR
ANOTHER OUTSIDER.  THE MAJORITY STATES THAT THIS IS "PROBABLY
UNREALISTIC" AND THAT IT WOULD "MULTIPLY THE PROBLEMS"  OF OBTAINING
APPROVAL OF SPONSORSHIP FROM BANK REGULATORY AGENCIES.  BUT THIS IS
SHEER SPECULATION; THE COURT SIMPLY HAS NO IDEA WHAT THE ATTITUDE OF
REGULATORY OFFICIALS WOULD BE IN THIS REGARD.  FURTHERMORE, NBC ITSELF
HAS HAD EXPERIENCE WITH SPONSORED-BANK SITUATIONS, AND, AS THE MAJORITY
RECOGNIZED, IT ASSERTS THAT IT HAS NOT SPONSORED BANKS SOLELY FOR THE
PURPOSE OF ACQUISITION.  APPARENTLY, RELATIONSHIPS WITH A SPONSORED
INSTITUTION ARE THEMSELVES OF INHERENT VALUE, AND THE BENEFITS WOULD
ONLY INCREASE IF THE SPONSORED BANK ITSELF BRANCHED AS IT GREW. 

VIEWED IN THIS LIGHT, THE COURT'S PER SE RULE BECOMES THREADBARE
INDEED WHEN APPLIED TO NBC ENTERING BY ACQUISITION INTO THE SPOKANE
MARKET.  THE THREE EXISTING SMALLER BANKS IN SPOKANE HAVE BEEN
SUCCESSFUL AND PROFITABLE AND HAVE EVEN INCREASED THEIR SHARE OF THE
MARKET IN SIX YEARS.  FURTHERMORE, SEATTLE-FIRST NATIONAL CONNOT
LEGALLY GO BEYOND ITS PRESENT SEVEN BRANCHES IN THE SPOKANE MARKET, AND
ITS SHARE OF THE MARKET HAS DECLINED.  IT IS QUITE UNREASONABLE TO
THINK THAT NBC, IF IT ACQUIRED AMERICAN COMMERCIAL, WITH ITS FOUR
BRANCHES COULD NOT BE AN EFFECTIVE COMPETITOR AT LEAST AGAINST SEATTLE
FIRST NATIONAL IN SPOKANE, WITH ITS SEVEN BRANCHES, OR AGAINST WTB WITH
ITS EIGHT. 

THE COURT ALSO ERRS IN HOLDING THAT NBC, AN OBVIOUS POTENTIAL
COMPETITOR, CANNOT BE DEEMED TO HAVE EXERCISED SUBSTANTIAL INFLUENCE ON
THE SPOKANE MARKET AND THAT ITS ENTRY BY MERGER WITH A MAJOR SPOKANE
BANK THEREFORE REPRESENTS NO PROBABLE INJURY TO COMPETITION IN THAT
MARKET.  TO THE EXTENT THAT THE COURT'S HOLDING ON THIS BRANCH OF THE
CASE RESTS ON ITS NOTION THAT NO BANK, WITHOUT BRANCHING, CAN MAKE
SUBSTANTIAL INROADS ON THE SPOKANE MARKET, I DISAGREE FOR REASONS
ALREADY STATED.  BEYOND THAT, HOWEVER, THE WAITING-IN-THE-WINGS
APPROACH TO POTENTIAL COMPETITION RESTS ON WHAT OBJECTIVE FACTORS
INDICATE THE PERCEPTION OF THE REASONABLY MINDED COMPETITOR IN THE
SPOKANE MARKET MIGHT BE OF THE LIKELIHOOD AND IMPACT OF AN ENTRY BY
NBC, EITHER DE NOVO OR BY ACQUISITION OF A SMALL BANK.  PREDICTIONS OF
MARKET BEHAVIOR AND COMPETITVE SUCCESS ARE JUST NOT AS CERTAIN OR
UNIFORMLY HELD AS THE COURT MAKES THEM OUT TO BE.  HERE, BEFORE NBC
ACQUIRED WTB, NBC NEGOTIATED TO ACQUIRE THE MUCH SMALLER FARMERS &
MERCHANTS BANK--A THREE-OFFICE SUBURBAN BANK WITH ABOUT $13 MILLION IN
DEPOSITS AND 2.5% OF THE MARKET.  THE TARGET BANK WAS IN THE RELEVANT
GEOGRAPHIC MARKET ACCEPTED BY THE PARTIES AND COURT.  THE PRESIDENT OF
MARINE BANCORPORATION, MAXWELL CARLSON, HAD AT VARIOUS TIMES NOTED THAT
THE PRESIDENT AND DIRECTOR OF WTB, PHILIP STANTON, EXPECTED NBC TO BE
IN SPOKANE SOME DAY.  ONE WONDERS, IF THE MAJORITY'S BRANCH-DISABILITY
THEORY IS CORRECT, WHY THESE BANKERS EVEN DISCUSSED POTENTIAL ENTRY
INTO THE MARKET.  THE FACT IS THAT THEY DID, AND IT IS FAIR TO ASSUME
THAT THROUGH INFORMAL CONTACTS, AND BY REASON OF THE PRIOR ACQUISITION
DISCUSSIONS, BANKERS IN THE MARKET WERE AWARE OF NBC'S INTEREST.  THE
MAJORITY WOULD HAVE ONE BELIEVE THAT EVEN IF NBC WAS INTERESTED, ON ONE
IN THE MARKET WOULD TAKE IT SERIOUSLY ENOUGH TO RESTRAIN
ANTICOMPETITIVE PRACTICES.  IT IS CERTAINLY POSSIBLE, HOWEVER, THAT
EVEN IF BANKERS IN THE MARKET DOUBTED THAT NBC WOULD ACTUALLY BE
SUCCESSFULL IN ACQUIRING A SIGNIFICANT MARKET SHARE, IF THEY ENTERED
THE MARKET, THE POSSIBILITY OF ENTRY AND THE POSSIBILITY OF COMPETITION
FOLLOWING ENTRY WERE SUFFICIENTLY STRONG TO RESTRAIN ANTICOMPETITIVE
PRACTICES.  IF BANKERS THOUGHT THAT THERE WAS A PROBABILITY OF ENTRY,
WHICH THERE SURELY WAS, BUT THAT THEIR LOSSES FROM SUCH ENTRY COULD BE
SUBSTANTIAL, IF NBC, ONCE IN THE MARKET, COMPETED MORE EFFECTIVELY THAN
ANTICIPATED, THEY WOULD TAKE COUNTERMEASURES AND MAKE ENTRY LESS
ATTRACTIVE BY REFRAINING FROM ENGAGING IN ANTICOMPETITIVE PRACTICES. 

IN THE LAST ANALYSIS, ONE'S VIEW OF THIS CASE, AND THE RULES ONE
DEVISES FOR ASSESSING WHETHER THIS MERGER SHOULD BE BARRED, TURNS ON
THE POLICY OF 7 OF THE CLAYTON ACT TO BAR MERGERS WHICH MAY CONTRIBUTE
TO FURTHER CONCENTRATION IN THE STRUCTURE OF AMERICAN BUSINESS.  UNITED
STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S., AT 362 - 363; UNITED
STATES V. PENN-OLIN CHEMICAL CO., 378 U.S. 158, 170 - 171 (1964); BROWN
SHOE CO. V. UNITED STATES, 370 U.S. 294, 331 - 332 (1962).  THE DANGERS
OF CONCENTRATION ARE PARTICULARLY ACUTE IN THE BANKING BUSINESS, SINCE
"IF THE COSTS OF BANKING SERVICES AND CREDIT ARE ALLOWED TO BECOME
EXCESSIVE BY THE ABSENCE OF COMPETITIVE PRESSURES, VIRTUALLY ALL COSTS,
IN OUR CREDIT ECONOMY, WILL BE AFFECTED.  . . ."  PHILADELPHIA BANK,
SUPRA, AT 372; UNITED STATES V. PHILLIPSBURG NATIONAL BANK, 399 U.S.
350, 358 (1970). 

UNLESS AN OTHERWISE ILLEGAL MERGER IS SAVED BY A FINDING UNDER THE
BANK MERGER ACT THAT IT IS NECESSARY TO SERVE THE CONVENIENCE AND NEEDS
OF THE COMMUNITY, THE LAW REQUIRES US IN THE FIRST INSTANCE TO JUDGE
BANK MERGERS BY NORMAL 7 STANDARDS.  I SIMPLY CANNOT AGREE WITH THE
COURT'S NARROW VIEW OF WHAT BANK MERGERS "MAY . . . SUBSTANTIALLY . . .
LESSEN COMPETITION." 

WITH RESPECT TO WHETHER DEPRIVING THE MARKET OF THE COMPETITION
OFFERED BY A NEW ENTRANT VIOLATES 7, IT IS NOT ENOUGH UNDER THE COURT'S
VIEW THAT THE NEWCOMER HAS ITSELF FOUND THE MARKET SUFFICIENTLY
ATTRACTIVE TO ENTER AND TO ASSUME ALL THE START-UP COSTS AND RISKS
ATTENDANT TO A NEW BUSINESS UNDERTAKING.  THE COURT IS WILLING ALSO TO
ASSUME THAT THE NEW BUSINESS WILL BE PROFITABLE AND LONG-LIVED, FOR
UNDER THE APPROACH TAKEN TODAY, IT IS NOT ENOUGH TO SHOW THE LOSS OF
ONE OR MORE PROFITABLE BUT SMALL BUSINESS, EVEN WHEN BACKED BY A MAJOR
ENTERPRISE, CAN OR WILL BE SUCCESSFUL IN COMPETING AGAINST THE
ENTRENCHED POWERS IN THE MARKET. 

THIS THESIS ERECTS FORMIDABLE BARRIERS TO THE APPLICATION OF THE
POTENTIAL-COMPETITION DOCTRINE NOT ONLY IN THE BANKING BUSINESS BUT IN
OTHER LINES OF COMMERCE.  /5/  TO SHOE THAT THE POTENTIAL ENTRANT,
WAITING IN THE WINGS, IS EXERCISING A PRESENT INFLUENCE ON THE MARKET,
OR THAT ITS LOSS AS A DE NOVO OR TOEHOLD ENTRANT MAY BE A SUBSTANTIAL
INJURY TO COMPETITION, IT WILL NOT BE ENOUGH TO PROVE ABILITY AND
WILLINGNESS TO ENTER, ALONG WITH THE PROBABILITY, OR EVEN CERTAINTY, OF
ENTRY.  NOR WILL IT SUFFICE TO PROVE THAT THE POTENTIAL OR ACTUAL
ENTRANT WOULD BE A PROFITABLE CONCERN AND SUCCESSFULLY PREVENT THE
MAJOR FIGURES IN THE MARKET FROM INCREASING THEIR MARKET SHARES.  THE
COURTS MUST ALSO EXAMINE CONDITIONS IN THE MARKET AND CONCLUDE FOR
THEMSELVES THAT THERE IS A REALISTIC EXPECTATION THAT THE NEW ENTRANT
WILL APPROPRIATE FOR ITSELF A SUBSTANTIAL PART OF THE BUSINESS OF THE
MAJOR COMPETITORS IN THE MARKET. 

THE COURT THEN DELIVERS THE COUP DE GRACE BY IMPOSING ITS OWN
VISIONS OF REALITY IN COMMERCIAL BANKING MARKETS:  WITHOUT UNLIMITED
BRANCHING AUTHORITY IN THE MARKET INVOLVED, NO NEWCOMER TO THE MARKET
CAN BE SUFFICIENTLY A SUBSTANTIAL COMPETITOR AND TO MERIT RECOGNITION
UNDER DOCTRINES OF POTENTIAL COMPETITION.  NO NEW ENTRANT CAN ATTAIN,
LET US SAY, 15 OR 20 PERCENT OF THE BANKING BUSINESS IN THE SPOKANE
AREA UNLESS IT HAS BRANCHING AUTHORITY.  THE COURT APPARENTLY INSISTS
THIS WILL BE TRUE NO MATTER WHERE THE NEW BANKING OFFICE IS LOCATED AND
NO MATTER WHO AND HOW WELL EQUIPPED AND FINANCED THE NEW ENTRANT MAY
BE.  THIS IS CLAIMING A PRESCIENCE THAT I DOUBT THE COURT HAS AND IS A
VIEW OF THE EFFECTIVENESS AND WORTH OF COMPETITION, THOUGH HAVING
MODEST BEGINNINGS, THAT I DO NOT SHARE.  FURTHERMORE, THE CONCLUSION
THE COURT REACHES PASSES BEYOND MY COMPREHENSION WHEN IT REFUSES TO
CONCEDE THAT NBC, IF IT ACQUIRED AMERICAN COMMERCIAL BANK, WITH ITS
FOUR BRANCHES, COULD NOT MAKE SUBSTANTIAL INROADS ON THE MARKET SHARES
OF ANY OF THE MAJOR BANKS IN THE MARKET, EVEN THOUGH ON OF THEM IS
FOREVER LIMITED TO SEVEN OFFICES UNDER THE PRESENT LAW. 

/1/  THE EVIDENCE, BASED UPON PAST PRACTICES, IS ENTIRELY TO THE
CONTRARY.  NBC HAS ITSELF EMPLOYED THE PROCEDURE WITH REGARD TO THE
COLUMBIA CENTER NATIONAL BANK LOCATED IN A SHOPPING CENTER IN SOUTH
CENTRAL WASHINGTON.  THE TECHNIQUES IT EMPLOYED INCLUDED FINDING AN
ORGANIZER FOR THE BANK, CONTROLLING THE SUBLEASE OF THE LAND ON WHICH
THE NEW BANK WAS TO BE LOCATED, THROUGH MARINE BANCORPORATION, SO AS TO
PREVENT ACQUISITION BY OTHERS WITHOUT ITS APPROVAL, AND MAKING SURE THE
MAJORITY STOCK OF THE BANK WAS IN FRIENDLY HANDS.  APP. 246 - 280.  THE
RECORD ABOUNDS WITH VARIOUS EXAMPLES OF THE TECHNIQUE BY OTHER
WASHINGTON BANKS; AND FEDERAL AUTHORITIES WERE AWARE OF MANY OF THE
METHODS, AS DISCLOSED IN THE APPLICATIONS FOR APPROVAL OF ACQUISITION
BY THE SPONSORS.  THE STATUTE ALSO FORBIDS A NEW BANK FROM MERGING WITH
OR PERMITTING ITS ASSETS TO BE ACQUIRED BY ANOTHER BANK FOR A PERIOD OF
10 YEARS BUT ONLY WITHOUT THE CONSENT OF THE STATE SUPERVISOR.  SUFFICE
IT TO STATE THAT EARLIER ACQUISITIONS HAVE, AS THE MAJORITY RECOGNIZES,
BEEN MADE IN THE PAST.  SURELY THE FRAGMENTARY FEARS OF ILLEGALITY ARE
NOT ENOUGH TO OVERTURN WHAT SEEMS A PERFECTLY WELL-ESTABLISHED
TECHNIQUE OF MARKET ENTRY NOT AT ODDS WITH THE LANGUAGE OF THE STATE
STATUTE.  IT SHOULD BE NOTED THAT THE DISTRICT COURT, ALTHOUGH NOT
FORMALLY RULING ON THE STATE LAW MATTER IN ITS FINDINGS OF FACT AND
CONCLUSIONS OF LAW, DID STATE DURING TRIAL THAT THIS WAS, IN ITS VIEW,
A FEASIBLE MEANS OF ENTRY.  APP. 870. 

/2/  THE BANKS RELY ON THE EXPERIENCE OF PACIFIC NATIONAL BANK OF
WASHINGTON.  IN 1964, A LARGE BANK HOLDING COMPANY ACQUIRED A TOEHOLD
IN SPOKANE BY ACQUIRING AN EXISTING SMALL BANK, BUT BY 1972 HAD ONLY
GARNERED 2.2% OF THE TOTAL BANK DEPOSITS IN SPOKANE.  A VICE PRESIDENT
OF THE BANK TESTIFIED AT TRIAL THAT ITS DISAPPOINTING SHARE OF THE
MARKET--ITS 1972 SHARE OF INDUSTRIAL AND COMMERCIAL LOANS WAS 4.6%--WAS
PROBABLY DUE TO ITS INABILITY TO BRANCH.  ALTHOUGH THIS OFFICER ALSO
TESTIFIED THAT HIS BANK WAS NOT OPPOSING THE MERGER OF NBC AND WTB, HE
CERTAINLY WAS AN INTERESTED PARTY.  UPON THIS WITNESS' OPINION, THE
OUTCOME OF THIS CASE CANNOT HINGE.  IN LIGHT OF THE OBJECTIVE EVIDENCE,
WHICH STRONGLY SUGGESTS THAT COMPETITION CAN EXIST WITHOUT EQUALITY IN
BRANCH CAPABILITY, THE TESTIMONY OF THIS VICE PRESIDENT SHOULD NOT BE
GIVEN GREAT WEIGHT.  IT IS NOT ONLY A SPECULATIVE STATEMENT AS TO THE
FAILURE OF THE PACIFIC NATIONAL; IT IS ALSO SELF-SERVING TO THE EXTENT
IT KEEPS ADDITIONAL COMPETITORS OUT OF THE MARKET.  AS WITH THE
TESTIMONY OF BANK OFFICIALS WHO PROFESS NO INTEREST IN ENTERING A
MARKET, SEE UNITED STATES V. FALSTAFF BREWING CORP., 410 U.S. 526, 534
535 (1973), IT SHOULD ONLY BE CONSIDERED ALONG WITH THE REST OF THE
OBJECTIVE ECONOMIC EVIDENCE. 

/3/ EVIDENCE INTRODUCED BY THE GOVERNMENT AS TO THE ABILITY OF BANKS
IN THE OTHER MAJOR METROPOLITAN BANKING MARKETS OF WASHINGTON--SEATTLE,
TACOMA, AND EVERETT--TOTALLY UNDERCUTS THE COURT'S ASSUMPTION THAT A
BANK WITH ONLY ONE OFFICE CANNOT ACQUIRE A SUBSTANTIAL ENOUGH MARKET
SHARE TO EFFECT DECONCENTRATION.  IN SEATTLE, THE BANK OF CALIFORNIA,
WITH ONLY ONE OFFICE, HAD $112 MILLION IN TOTAL DEPOSITS IN 1970,
REPRESENTING 6.27% OF THE TOTAL DEPOSIT MARKET.  THIS SHARE CAN BE
COMPARED WITH THAT OF PACIFIC NATIONAL BANK OF WASHINGTON WHICH, WITH
13 OFFICES, HAD A 9.38% MARKET SHARE.  IN TACOMA, THE BANK OF
CALIFORNIA-TACOMA HAD $65.4 MILLION ON TOTAL DEPOSITS WHICH REPRESENTED
A 15.55% MARKET SHARE.  COMPARE THIS WITH THE 3.17% SHARE OF SEATTLE
FIRST NATIONAL BANK-TACOMA, WITH FOUR OFFICES.  IN EVERETT, PEOPLES
NATIONAL BANK OF WASHINGTON-EVERETT, WITH ONE OFFICE, HAD $17.2 MILLION
IN TOTAL DEPOSITS, A 10.83% MARKET SHARE.     /4/  AS THE MAJORITY
RECOGNIZES, THE RELEVANT PRODUCT MARKET IN THIS CASE IS THE CLUSTER OF
SERVICES OFFERED BY COMMERCIAL BANKS.  A MAIN COMPONENT OF THAT
CLUSTER, AND ONE WHICH DETERMINES PROFITS, IS THE ABILITY TO PROVIDE
LOANS, AND IT SEEMS TO ME THAT A PROSPECT OF COMPETITION FOR LOANS,
WHETHER BASED ON DEPOSITS GARNERED IN SPOKANE OR ELSEWHERE, HAS A
SUBSTANTIAL POSSIBILITY OF EFFECTING DECONCENTRATION IN AT LEAST ONE
SEGMENT OF THE BANKING BUSINESS.  THE FACT THAT PROFITABILITY AND
NUMBER OF OFFICES ARE NOT HIGHLY CORRELATED IS SUPPORTED BY COMPARING
THE EXPERIENCE OF WASHINGTON BANCSHARES AND SEATTLE-FIRST NATIONAL
BANK.  IN 1971, THE FORMER HAD 23 OFFICES HAD A NET INCOME OF $2.2
MILLION.  THE LATTER, WITH ONLY SEVEN OFFICES, HAD A NET INCOME OF $3.5
MILLION.  IN THAT SAME YEAR, ALTHOUGH WASHINGTON BANCSHARES HAD $45.6
MILLION MORE IN DEPOSITS THAN DID SEATTLE-FIRST NATIONAL, THE LATTER
HAD AN EDGE OF $7.2 MILLION IN COMMERCIAL AND INDUSTRIAL LOANS. 

/5/  THE COURT PROFESSES TO LIMIT ITS PER SE RULE TO "AN INDUSTRY IN
WHICH NEW ENTRY IS EXTENSIVELY REGULATED BY THE STATE AND FEDERAL
GOVERNMENTS."  THE CASE, AS DECIDED, HOWEVER, DOES NOT TURN ON BARRIERS
TO ENTRY, BUT "BARRIERS" TO EFFECTIVE COMPETITION, ONCE ENTRY IS
EFFECTED, AND "BARRIERS" TO EFFECTIVE COMPETITION ARE NOT EASILY
LIMITED TO REGULATED INDUSTRIES.  THE COURT LAYS ITSELF OPEN FOR
ARGUMENTS THAT ECONOMIC, AS WELL AS LEGAL, BARRIERS EXIST FOR NEW
COMPETITORS.  AT LEAST IT IS DIFFICULT TO SEE WHY ONE SHOULD BE MORE
CONTROLLING THAN ANOTHER; IN FACT, THE COURT ITSELF BLURS THE TWO. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL KAUPER, HOWARD E. SHAPIRO, AND GEORGE EDELSTEIN. 

R.A. MOEN ARGUED THE CAUSE FOR APPELLEES MARINE BANCORPORATION,
INC., ET AL. WITH HIM ON THE BRIEF WAS JAMES WM. JOHNSTON.  LEE
LOEVINGER ARGUED THE CAUSE FOR APPELLEE COMPTROLLER OF THE CURRENCY. 
WITH HIM ON THE BRIEF WERE ROBERT BLOOM AND JON D. HARTMAN. 
..END :












UNITED STATES V. CONNECTICUT NATIONAL BANK, 418 U.S. 656 


       UNITED STATES V. CONNECTICUT NATIONAL BANK ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT

        NO. 73 - 767.  ARGUED APRIL 23, 1974--DECIDED JUNE 26,
1974;

   362 F.SUPP.  240, VACATED AND REMANDED. 


 THE UNITED STATES BROUGHT THIS CIVIL ANTITRUST ACTION UNDER 7 OF
THE CLAYTON ACT CHALLENGING A

  PROPOSED CONSOLIDATION BETWEEN THE CONNECTICUT NATIONAL BANK
(CNB) AND THE FIRST NEW HAVEN

  NATIONAL BANK (FNH), WHICH ARE, RESPECTIVELY, THE FOURTH AND
EIGHTH LARGEST COMMERCIAL BANKS

  IN CONNECTICUT.  THE BANKS OPERATE IN CONTIGUOUS AREAS OF THE
STATE, CBN HAVING HEADQUARTERS

  IN BRIDGEPORT, WITH 51 OFFICES THERE AND IN NEARBY TOWNS; FNH
HAVING HEADQUARTERS IN NEW

  HAVEN, WITH 22 OFFICES THERE AND IN NEARBY TOWNS.  THE GOVERNMENT
CONTENDED THAT THE MERGER

  WOULD ELIMINATE SIGNIFICANT POTENTIAL COMPETITION IN COMMERCIAL
BANKING AREAS IN

  CONNECTICUT.  THE DISTRICT COURT REJECTED THE GOVERNMENT'S
ARGUMENTS IN SUPPORT OF THAT

  POSITION, RELYING ON STATE LAW RESTRAINTS ON DE NOVO BRANCHING,
THE TWO BANK'S EXPANSION PLANS

 AND CAPABILITIES, THE POSTURE OF NATIONAL AND STATE REGULATORY
OFFICIALS REGARDING THE

  ISSUANCE OF NEW BANK CHARTERS, AND THE EXISTENCE AND ECONOMIC
FEASIBILITY OF POSSIBLE FOOTHOLD

  ACQUISITIONS.  THE COURT CONCLUDED THAT UNDER 7 COMMERCIAL
BANKING IS NOT A DISTINCT LINE OF

  COMMERCE IN CONNECTICUT AND THAT THE RELEVANT GEOGRAPHIC MARKET,
OR "SECTION OF THE

  COUNTRY" UNDER THAT PROVISION, IS THE STATE AS A WHOLE.  HELD: 

     1.  THE DISTRICT COURT ERRED IN HOLDING THAT THE APPROPRIATE

  "LINE OF COMMERCE" WITHIN THE MEANING OF 7 INCLUDED BOTH

  COMMERCIAL BANKS AND SAVINGS BANKS.  PP. 660 - 666. 

     2.  THE DISTRICT COURT FURTHER ERRED IN RULING THAT THE

  RELEVANT GEOGRAPHIC MARKET IS THE STATE OF CONNECTICUT AS A

  WHOLE.  IN A POTENTIAL-COMPETITION CASE LIKE THIS, THE RELEVANT

  GEOGRAPHIC MARKET MUST BE DEFINED AS THE LOCALIZED AREA IN WHICH

  THE ACQUIRED BANK IS IN SIGNIFICANT, DIRECT COMPETITION WITH

  OTHER BANKS, ALBEIT NOT THE ACQUIRING BANK.  UNITED

STATES V. MARINE BANCORPORATION, ANTE, P. 602.  PP. 666 - 668. 

     3.  ON REMAND, THE DISTRICT COURT MUST MAKE A DETERMINATION AS

TO THE GEOGRAPHIC MARKET IN WHICH EACH OF THE BANKS OPERATES AND

  TO WHICH THE BULK OF ITS CUSTOMERS MAY TURN FOR ALTERNATIVE

  COMMERCIAL BANK SERVICES, AND IN MAKING THAT DETERMINATION IT

  WILL BE AIDED BY THE FOLLOWING CONSIDERATIONS: (I) THE GOVERNMENT

  HAS THE BURDEN OF PRODUCING EVIDENCE TO DEFINE LOCALIZED BANKING

  MARKETS; (II) IN SATISFYING THAT BURDEN (AS THE DISTRICT COURT

  CORRECTLY HELD) THE GOVERNMENT CANNOT RELY ONLY ON STANDARD

  METROPOLITAN STATISTICAL AREAS; AND (III) TOWN BOUNDARIES,

  ALTHOUGH SIGNIFICANT, AR NOT CONTROLLING.  PP. 668 - 671. 

     4. THE GOVERNMENT'S CONTENTION THAT THE STATE AS A WHOLE,

  THOUGH NOT A BANKING MARKET, IS A "SECTION OF THE COUNTRY" WITHIN

  THE MEANING OF 7 IS WITHOUT MERIT, MARINE BANCORPORATION, SUPRA.

  PP. 672 - 673. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, BLACKMUN, AND REHNQUIST, JJ., JOINED, AND IN PART I
OF WHICH DOUGLAS, BRENNAN, WHITE, AND MARSHALL, JJ., JOINED.  WHITE,
J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, IN
WHICH DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED, POST, P. 673. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE LEGALITY OF A PROPOSED CONSOLIDATION OF TWO
NATIONALLY CHARTERED COMMERCIAL BANKS OPERATING IN ADJOINING REGIONS OF
CONNECTICUT.  THE UNITED STATES BROUGHT A CIVIL ANTITRUST ACTION
CHALLENGING THE CONSOLIDATION UNDER 7 OF THE CLAYTON ACT, 38 STAT. 731,
AS AMENDED, 15 U.S.C. 18.  FOLLOWING A LENGTHY TRIAL AND ON THE BASIS
OF EXTENSIVE FINDINGS AND CONCLUSIONS, THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT DISMISSED THE GOVERNMENT'S COMPLAINT. 
362 F. SUPP. 240 (1973).  THE GOVERNMENT BROUGHT A DIRECT APPEAL
PURSUANT TO THE EXPEDITING ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C. 29,
AND THE COURT NOTED PROBABLE JURISDICTION, 414 U.S. 1127 (174). 

THE BANKS DESIRING TO CONSOLIDATE, CONNECTICUT NATIONAL BANK (CNB)
AND FIRST NEW HAVEN NATIONAL BANK (FNH), HAVE OFFICES IN CONTIGUOUS
AREAS IN THE SOUTHWESTERN PORTION OF CONNECTICUT.  CBN MAINTAINS ITS
HEADQUARTERS IN THE TOWN OF BRIDGEPORT, WHICH IS SITUATED ON THE LONG
ISLAND SOUND APPROXIMATELY 60 MILES FROM NEW YORK CITY.  CBN IS THE
FOURTH LARGEST COMMERCIAL BANK IN THE STATE.  AT YEAR-ND 1972, IT HELD
6.2% OF THE DEPOSITS IN COMMERCIAL BANKS IN CONNECTICUT.  CBN OPERATES
51 OFFICES LOCATED IN BRIDGEPORT AND NEARBY TOWNS IN THE EXTREME
SOUTHWEST SECTION OF CONNECTICUT. 

FNH HAS ITS HEADQUARTERS IN THE TOWN OF NEW HAVEN, APPROXIMATELY 19
MILES TO THE NORTHEAST OF BRIDGEPORT ALONG THE LONG ISLAND SOUND.  FHN
IS THE EIGHTH LARGEST COMMERCIAL BANK IN CONNECTICUT.  AT THE END OF
1972, IT HELD 4.1% OF COMMERCIAL BANK DEPOSITS IN THE STATE.  FNH
OPERATES 22 BANK OFFICES IN NEW HAVEN AND SURROUNDING TOWNS. 

IN CONNECTICUT AS A WHOLE AT THE END OF 1971, THE FIVE LARGEST
COMMERCIAL BANKS HELD 61% AND THE 10 LARGEST COMMERCIAL BANKS HELD 83%
OF THE DEPOSITS IN SUCH BANKS IN THE STATE.  TWO LARGE COMMERCIAL BANKS
BASED IN HARTFORD, CONNECTICUT BANK & TRUST CO. OF HARTFORD AND
HARTFORD NATIONAL BANK, OPERATE ESSENTIALLY STATEWIDE.  AT YEAR-END
1972, THEY HAD 41% OF THE TOTAL COMMERCIAL BANK DEPOSITS HELD BY
CONNECTICUTS BANKS. 

CBN AND FNH BOTH HAVE OFFICES AND ARE IN DIRECT COMPETITION IN A SO
CALLED "FOUR-TOWN AREA" LOCATED BETWEEN BRIDGEPORT AND NEW HAVEN.  THE
BANKS ASSURED THE DISTRICT COURT, HOWEVER, THAT IN IMPLEMENTING THE
CONSOLIDATION THEY WOULD DIVEST THEMSELVES OF A SUFFICIENT NUMBER OF
OFFICES IN THE 4-TOWN AREA TO RENDER INSIGNIFICANT THE DEGREE OF
OVERLAP OF THEIR AREAS OF ACTUAL OPERATION.  THE DISTRICT COURT HELD
THAT THIS DIVESTITURE PLAN ELIMINATED ANY ANTITRUST DIFFICULTIES
PRESENTED BY THE MERGER OF DIRECT COMPETITORS.  362 F. SUPP., AT 268 -
270, 286.  THE UNITED STATES HAS NOT PURSUED THE POINT ON APPEAL. 
ACCORDINGLY, THE CASE HAS BEEN PRESENTED TO US STRICTLY AS A GEOGRAPHIC
MARKET EXTENSION MERGER ON THE PART OF BOTH BANKS.  THE PROPOSED
CONSOLIDATION WOULD JOIN THE BANKS UNDER FNH'S NATIONAL CHARTER (WITH
HEADQUARTERS IN BRIDGEPORT).  IT WOULD HAVE NO EFFECT ON THE NUMBER OF
BANKS OPERATING EITHER THE BRIDGEPORT OR NEW HAVEN AREA.  IN THAT
POSTURE, THE CASE PRESENTS POTENTIAL-COMPETITION ISSUES SIMILAR TO
THOSE RAISED IN UNITED STATES V. MARINE BANCORPORATION, INC., ANTE, P.
602. 

THE DISTRICT COURT REJECTED THE GOVERNMENT'S POTENTIAL-COMPETITION
ARGUMENTS, RELYING ON SUCH FACTORS AS STATE-LAW RESTRAINTS ON DE NOVO
BRANCHING, /1/  THE EXPANSION PLANS AND CAPABILITIES OF THE TWO BANKS,
THE POSTURE OF NATIONAL AND STATE REGULATORY OFFICIALS REGARDING THE
ISSUANCE OF NEW BANK CHARTERS, AND THE EXISTENCE AND ECONOMIC
FEASIBILITY OF POSSIBLE FOOTHOLD ACQUISITIONS.  362 F. SUPP., AT 286 -
288.  AS WE HAVE HELD TODAY IN THE MARINE BANCORPORATION CASE, THESE
AND ANALOGOUS FACTORS ARE THE APPROPRIATE CONSIDERATIONS TO TAKE INTO
ACCOUNT IN DETERMINING THE LEGALITY UNDER 7 OF THE CLAYTON ACT OF
GEOGRAPHIC MARKET EXTENSION MERGERS BY COMMERCIAL BANKS.  WE ARE
UNABLE, HOWEVER, TO REACH THE QUESTION OF WHETHER THE DISTRICT COURT
CORRECTLY ASSESSED THE IMPORT OF THOSE FACTORS IN THE INSTANT CASE.  WE
HAVE ALSO HELD IN MARINE BANCORPORATION THAT THE LEGALITY OF A MARKET
EXTENSION MERGER MUST BE DETERMINED AGAINST THE BACKDROP OF PROPERLY
DEFINED PRODUCT AND GEOGRAPHIC MARKETS.  SEE ANTE, AT 618.  IN OUR
VIEW, THE DISTRICT COURT ERRED IN ITS DEFINITION OF BOTH CONCEPTS, AND
IT IS NOT POSSIBLE TO ASCERTAIN THE DEGREE, IF ANY, TO WHICH THOSE
ERRORS MAY HAVE INFLUENCED ITS CONCLUSIONS WITH REGARD TO THE
GOVERNMENT'S POTENTIAL-COMPETITION ARGUMENTS.  ACCORDINGLY, THE
DISTRICT COURT'S JUDGMENT MUST BE VACATED AND THE CASE REMANDED FOR
RECONSIDERATION. 

       I 

THE DISTRICT COURT CONCLUDED THAT THE APROPRIATE "LINE OF COMMERCE"
WITHIN THE MEANING OF 7 INCLUDED BOTH COMMERCIAL BANKS AND SAVINGS
BANKS.  362 F. SUPP., AT 281.  THE COURT RECOGNIZED THAT ITS CONCLUSION
DEPARTED FROM THIS COURT'S HOLDINGS IN, E.G., UNITED STATES V.
PHILLIPSBURG NATIONAL BANK, 399 U.S. 350, 359 - 362 (1970), AND UNITED
STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 356 - 357 (1963). 
BUT IN THE DISTRICT COURT'S VIEW THE PRONOUNCEMENTS IN PHILLIPSBURG
NATIONAL BANK AND PHILADELPHIA NATIONAL BANK "WERE NOT INTENDED TO BE
IRONCLAD, HARD AND FAST RULES WHICH REQUIRE A COURT TO DON BLINDERS TO
BLOCK OUT THE TRUE COMPETITIVE SITUATION EXISTING IN EVERY SET OF
CIRCUMSTANCES."  362 F. SUPP., AT 280. 

SEVERAL FACTORS LED THE DISTRICT COURT TO THE CONCLUSIONS THAT
"SAVINGS BANKS ARE IN DIRECT AND SUBSTANTIAL COMPETITION WITH
COMMERCIAL BANKS IN PROVIDING PRODUCT-SERVICES TO THE BANKING CONSUMERS
IN CONNECTICUT ...," AND THAT "(THE COLD, HARD REALITIES OF THE
SITUATION ARE THAT SAVINGS BANKS AND COMMERCIAL BANKS ARE FIERCE
COMPETITORS IN THIS STATE."  IBID.  THE COURT NOTED THAT UNDER STATE
LAW SAVINGS BANKS IN THE NEAR FUTURE WILL BE PERMITTED TO OFFER ONE OF
THE TRADITIONAL INDICIA OF COMMERCIAL BANKS, PERSONAL CHECKING
ACCOUNTS.  SEE CONN. PUB. ACT NO 73 - 195 (MAY 14, 1973).  IT POINTED
OUT THAT SAVINGS BANKS IN CONNECTICUT COMPETE WITH COMMERCIAL BANKS FOR
REAL ESTATE MORTGAGES, PERSONAL LOANS, IPC (INDIVIDUAL, PARTNERSHIP,
AND CORPORATE) DEPOSITS, AND, THE COURT FOUND, COMMERCIAL LOANS.  362
F. SUPP., AT 280.  IT CITED UNITED STATES V. CONTINENTAL CAN CO., 378
U.S. 441 (1964), FOR THE PROPOSITION THAT "COMPLETE INDUSTRY OVERLAP"
IS NOT REQUIRED TO ESTABLISH A RELEVANT LINE OF COMMERCE UNDER 7.  362
F. SUPP., AT 281.  IT ALSO RELIED ON THE OMISSION OF THE "IN ANY LINE
OF COMMERCE" PHRASE FROM THE BANK MERGER ACT OF 1966, 12 U.S.C. 1828
(C) (5) (B), AN ACT WHICH IN OTHER ESSENTIAL RESPECTS TRACKS THE
LANGUAGE OF 7 OF THE CLAYTON ACT.  /2/  FINALLY, IT DISTINGUISHED
PHILADELPHIA NATIONAL BANK, SUPRA, AND PHILLIPSBURG NATIONAL BANK,
SUPRA, BY POINTING TO THE ABSENCE OF SIGNIFICANT COMPETITION BY SAVINGS
BANKS IN THE RELEVANT GEOGRAPHIC MARKETS IN THOSE CASES.  362 F. SUPP.,
AT 281.  THE DISTRICT COURT'S CONCLUSION ON THE APPROPRIATE LINE OF
COMMERCE CAUSED IT TO "SHADE" (I.E., TO REDUCE) THE GOVERNMENT'S
CONCENTRATION RATIOS TO TAKE INTO ACCOUNT THE PRESENCE OF SAVINGS
BANKS.  ID., AT 285. 

WE ARE IN COMPLETE AGREEMENT WITH THE DISTRICT COURT THAT
PHILLIPSBURG NATIONAL BANK AND PHILADELPHIA NATIONAL BANK DO NOT
REQUIRE A COURT TO BLIND ITSELF TO ECONOMIC REALITIES.  SIMILARLY, WE
HAVE NO DOUBT ON THIS RECORD THAT SAVINGS BANKS AND COMMERCIAL BANKS IN
CONNECTICUT ARE "FIERCE COMPETITORS," SEE 362 F. SUPP., AT 280, TO THE
DEGREE THAT THEY OFFER IDENTICAL OR ESSENTIALLY FUNGIBLE SERVICES.  THE
DISTRICT COURT WAS ALSO CORRECT THAT "COMPLETE INTER-INDUSTRY
COMPETITIVE OVERLAP NEED NOT BE SHOWN."  CONTINENTAL COA CO., SUPRA, AT
457.  AS THE COURT DECLARED IN CONTINENTAL CAN, "WE MUST RECOGNIZE
MEANINGFUL COMPETITION WHERE IT IS FOUND TO EXIST."  ID., AT 449. 
NONETHELESS, WE HOLD FOR SEVERAL REASONS THAT THE DISTRICT COURT WAS
MISTAKEN IN INCLUDING BOTH SAVINGS AND COMMERCIAL BANKS IN THE SAME
PRODUCT MARKET FOR PURPOSES OF THIS CASE. 

TWO OF THE DISTRICT COURT'S REASONS MAY BE DEALT WITH BRIEFLY.  THE
COURT ERRED AS A MATTER OF LAW IN CONCLUDING THAT THE ABSENCE OF A
"LINE OF COMMERCE" PHRASE IN THE BANK MERGER ACT OF 1966 ALTERS
TRADITIONAL STANDARDS UNDER 7 OF THE CLAYTON ACT FOR DEFINING THE
RELEVANT PRODUCT MARKET IN A BANK MERGER CASE.  UNITED STATES V. THIRD
NATIONAL BANK, 390 U.S. 171, 182 N.15 (1968).  SEE PHILLIPSBURG
NATIONAL BANK, 399 U.S., AT 359 - 362.  MOREOVER, THE ABSENCE OF
SIGNIFICANT COMPETITION FROM SAVINGS BANKS IN PHILADELPHIA NATIONAL
BANK, SUPRA, AND PHILLIPSBURG NATIONAL BANK, SUPRA, IS NOT
DETERMINATIVE.  THE COMMERCIAL BANKS IN BOTH OF THOSE CASES FACED
SIGNIFICANT COMPETITION FROM SAVINGS AND LOAN ASSOCIATIONS AND OTHER
CREDIT INSTITUTIONS.  SEE, E.G., 374 U.S., AT 357 N.34; UNITED STATES
V. PHILLIPSBURG NATIONAL BANK, 306 F. SUPP. 645, 649 (NJ 1969).  THE
COURT IN BOTH INSTANCES NEVERTHELESS VIEWED THE BUSINESS OF COMMERCIAL
BANKING AS SUFFICIENTLY DISTINCT FORM OTHER CREDIT INSTITUTIONS TO
MERIT TREATMENT AS A SEPARATE "LINE OF COMMERCE"  UNDER 7.  ANALOGOUS
DISTINCTIONS, ALTHOUGH PERHAPS NOT AS SHARPLY DEFINED, ARE CONTROLLING
HERE. 

WE BELIEVE THAT THE DISTRICT COURT OVERESTIMATED THE DEGREE OF
COMPETITIVE OVERLAP THAT IN FACT EXISTS BETWEEN SAVINGS BANKS AND
COMMERCIAL BANKS IN CONNECTICUT.  TO BE SURE, THERE IS A LARGE MEASURE
OF SIMILARITY BETWEEN THE SERVICES MARKETED BY THE TWO CATEGORIES OF
BANKS.  /3/  IN OUR VIEW, HOWEVER, THE OVERLAP IS NOT SUFFICIENT AT
THIS STAGE IN THE DEVELOPMENT OF SAVINGS BANKS IN CONNECTICUT TO TREAT
THEM TOGETHER WITH COMMERCIAL BANKS IN THE INSTANT CASE.  DESPITE THE
STRIDES THAT SAVINGS BANKS IN THAT STATE HAVE MADE TOWARDS PARITY WITH
COMMERCIAL BANKS, THE LATTER CONTINUE TO BE ABLE TO PROVIDE A CLUSTER
OF SERVICES THAT THE FORMER CANNOT, PARTICULARLY WITH REGARD TO
COMMERCIAL CUSTOMERS, AND THIS COURT HAS REPEATEDLY HELD THAT IT IS THE
UNIQUE CLUSTER OF SERVICES PROVIDED BY COMMERCIAL BANKS THAT SETS THEM
APART FOR PURPOSES OF 7. 

THE COURT DECLARED IN PHILLIPSBURG NATIONAL BANK, SUPRA, AT 360: 

  "PHILADELPHIA BANK EMPHASIZED THAT IT IS THE CLUSTER OF

  PRODUCTS AND SERVICES THAT FULL-SERVICE BANKS OFFER THAT AS A

  MATTER OF TRADE REALITY MAKES COMMERCIAL BANKING A DISTINCT LINE

  OF COMMERCE.  COMMERCIAL BANKS ARE THE ONLY FINANCIAL

  INSTITUTIONS IN WHICH A WIDE VARIETY OF FINANCIAL PRODUCTS AND

  SERVICES--SOME UNIQUE TO COMMERCIAL BANKING AND OTHER NOT--ARE

  GATHERED TOGETHER IN ONE PLACE.  THE CLUSTERING OF FINANCIAL

  PRODUCTS AND SERVICES IN BANKS FACILITATED CONVENIENT ACCESS TO

  THEM FOR ALL BANKING CUSTOMERS.  . . ." 

FROM THE VANTAGE POINT OF AT LEAST ONE SIGNIFICANT CONSUMER OF THE BANK
SERVICES--THE COMMERCIAL ENTERPRISE--COMMERCIAL BANKS IN CONNECTICUT
OFFER A "CLUSTER OF PRODUCTS AND SERVICES" THAT THEIR SAVINGS BANK
COUNTERPARTS DO NOT.  THE FACTS OF THIS CASE INDICATE THAT THE
DIFFERENCES IN WHAT COMMERCIAL BANKS IN THE STATE CAN OFFER TO THAT
IMPORTANT CATEGORY OF BANK CUSTOMERS ARE SUFFICIENT TO ESTABLISH
COMMERCIAL BANKING AS A DISTINCT LINE OF COMMERCE. 

THE DISTRICT COURT CONLUDED THAT "MEANINGFUL COMPETITION"  EXISTED
BETWEEN COMMERCIAL AND SAVINGS BANKS FOR COMMERCIAL LOANS.  362 F.
SUPP., AT 280.  THIS CONCLUSION IS NOT SUPPORTED BY THE RECORD. 
COMMERCIAL LOANS, GENERALLY SPEAKING, ARE RELATIVELY SHORT-TERM LOANS
TO BUSINESS ENTERPRISES OF ALL SIZES, USUALLY FOR PURPOSES OF INVENTORY
OR WORKING CAPITAL.  AT THE END OF 1971 COMMERCIAL BANKS IN CONNECTICUT
HAD OUTSTANDING $1.03 BILLION IN COMMERCIAL LOANS.  /4/  SAVINGS BANKS,
BY COMPARISON, HAD $26 MILLION IN SUCH LOANS AT THAT TIME.  /5/  THE
DISPARITY IN THESE FIGURES DEMONSTRATES THAT THE COMMERCIAL BANK-LOAN
BUSINESS IN CONNECTICUT IS CONTROLLED ALMOST EXCLUSIVELY BY COMMERCIAL
BANKS.  MOREOVER, COMMERCIAL BANKS IN THE STATE OFFER CREDIT-CARD
PLANS, LOANS FOR SECURITIES PURCHASES, TRUST SERVICES, INVESTMENT
SERVICES, COMPUTER AND ACCOUNT SERVICES, AND LETTERS OF CREDIT. 
SAVINGS BANKS DO NOT. 

IT IS TRUE THAT UNDER STATE LAW SAVINGS BANKS SOON WILL BE ABLE TO
PROVIDE SOME CHECKING ACCOUNT SERVICES.  CONN. PUB. ACT NO. 73 - 195
(MAY 14, 1973).  /6/  THIS WILL INCREASE THE DEGREE OF DIRECT
COMPETITON BETWEEN DEMAND DEPOSITS HAVE TRADITIONALLY BEEN A UNIQUE
ATTRIBUTE OF THE LATTER INSTITUTIONS.  BUT EVEN THIS NEW AUTHORITY FOR
SAVINGS BANKS WILL NOT ALLOW THEM TO SERVE COMMERCIAL CUSTOMERS, WHO
CONSTITUTE A SIGNIFICANT PERCENTAGE OF THE CLIENTELE OF COMMERCIAL
BANKS.  THE STATE STATUTE EMPOWERING SAVINGS BANKS TO OFFER DEMAND
DEPOSITS FORBIDS THOSE BANKS FROM MARKETING THE SERVICE TO ANYONE "FOR
THE PURPOSE OF, OR IN CONNECTION WITH, THE CARRYING ON OF ANY BUSINESS,
TRADE, OCCUPATION OR PROFESSION."  ID., 1 (A), 5.  THUS, UNDER THE NEW
ACT, SAVINGS BANKS WILL BE RESTRICTED TO OFFERING PERSONAL CHECKING
ACCOUNTS.  ID., 2. 

WE DO NOT SAY, AND PHILLIPSBURG NATIONAL BANK, SUPRA, AND
PHILADELPHIA NATIONAL BANK, SUPRA, DO NOT SAY, THAT IN A CASE INVOLVING
A MERGER OF COMMERCIAL BANKS A COURT MAY NEVER CONSIDER SAVINGS BANKS
AND COMMERCIAL BANKS AS OPERATING IN THE SAME LINE OF COMMERCE, NO
MATTER HOW SIMILAR THEIR SERVICES AND ECONOMIC BEHAVIOR.  AT SOME STAGE
IN THE DEVELOPMENT OF SAVINGS BANKS IT WILL BE UNREALISTIC TO
DISTINGUISH THEM FROM COMMERCIAL BANKS FOR PURPOSES OF THE CLAYTON
ACT.  IN CONNECTICUT, THAT POINT MAY WELL BE REACHED WHEN AND I SAVINGS
BANKS BECOME SIGNIFICANT PARTICIPANTS IN THE MARKETING OF BANK SERVICES
TO COMMERCIAL ENTERPRISES.  BUT, IN ADHERENCE TO THE TESTS SET FORTH IN
OUR EARLIER BANK MERGER CASES, WHICH WE ARE CONSTRAINED TO FOLLOW, WE
HOLD THAT SUCH A POINT HAS NOT YET BEEN REACHED.  ACCORDINGLY, ON
REMAND THE DISTRICT COURT SHOULD TREAT COMMERCIAL BANKING AS THE
RELEVANT PRODUCT MARKET.              II 

THE DISTRICT COURT RULED THAT THE RELEVANT GEOGRAPHIC MARKET, OR
"SECTION OF THE COUNTRY," UNDER 7, IS THE STATE AS A WHOLE.  362 F.
SUPP., AT 283.  WE THINK THE DISTRICT COURT ERRED ON THIS POINT FOR
SEVERAL REASONS.  IF THE STATE WERE THE RELEVANT GEOGRAPHIC MARKET, IT
WOULD THEN BE APPROPRIATE TO ANALYZE THIS NOT AS A POTENTIAL
COMPETITION CASE BUT AS A DIRECT-COMPETITION CASE INVOLVING THE
CONSOLIDATION OF TWO FIRMS HOLDING AS AGGREGATE MARKET SHARE OF
APPROXIMATELY 10%.  EVEN IF THIS FIGURE IS "SHADED" BY A FACTOR OF 10%
TO ACCOUNT FOR THE INFLUENCE OF BANKS IN NEW YORK, SEE ID., AT 260;
PHILADELPHIA NATIONAL BANK, 374 U.S., AT 364 N.40, THE CONSOLIDATION OF
CBN AND FNH WOULD CREATE A FIRM HOLDING A 9% SHARE OF STATEWIDE
COMMERCIAL-BANK DEPOSITS.  MERGERS BETWEEN DIRECT COMPETITORS PRODUCING
SMALLER SHARES OF LESS CONCENTRATED MARKETS HAVE BEEN HELD ILLEGAL
UNDER 7.  E.G., UNITED STATES V. VON'S GROCERY CO., 384 U.S. 270
(1966). 

THE STATE CANNOT BE THE RELEVANT GEOGRAPHIC MARKET, HOWEVER, BECAUSE
CNB AND FNH ARE NOT DIRECT COMPETITORS ON THAT BASIS (OR FOR THAT
MATTER ON ANY OTHER BASIS PERTINENT TO THIS APPEAL).  THE TWO BANKS DO
NOT OPERATE STATEWIDE, NOR DO THEIR CUSTOMERS AS A GENERAL RULE UTILIZE
COMMERCIAL BANKS ON THAT BASIS.  THE OFFICES OF THE TWO BANKS ARE
RESTRICTED TO ADJOINING SECTIONS OF THE SOUTHWEST SEGMENT OF
CONNECTICUT.  ALTHOUGH THE TWO BANKS PRESUMABLY MARKET A SMALL
PERCENTAGE OF THEIR LOANS TO LARGE CUSTOMERS ON A STATEWIDE OR BROADER
BASIS, IT IS UNDOUBTEDLY TRUE THAT ALMOST ALL OF THEIR BUSINESS
ORIGINATES LOCALLY.  FOR EXAMPLE, "ABOUT 88% OF CBN'S TOTAL DEPOSIT
BUSINESS DERIVES) FROM THE TOWNS IN WHICH CBN HAS OFFICES."  362 F.
SUPP., AT 250.  AS THE DISTRICT COURT NOTED IN A FINDING THAT IS
INCONSISTENT WITH ITS CONCLUSION ON THE APPROPRIATE SECTION OF THE
COUNTRY, "(CCOMMON SENSE . . . WOULD INDICATE THAT THE RELEVANT MARKET
AREAS OF CBN AND FNH GENERALLY COINCIDE WITH WHERE EACH HAS ESTABLISHED
BRANCH OFFICES."  IBID. 

AS INDICATED BY OUR OPINION TODAY IN MARINE BANCORPORATION, ANTE, P.
602, THE RELEVANT GEOGRAPHIC MARKET OF THE ACQUIRED BANK IS THE
LOCALIZED AREA IN WHICH THAT BANK IS IN SIGNIFICANT, DIRECT COMPETITION
WITH OTHER BANKS, ALBEIT NOT THE ACQUIRING BANK.  THIS AREA MUST BE
DEFINED IN ACCORDANCE WITH THIS COURT'S PRECEDENTS IN PRIOR BANK MERGER
CASES.  YET THE DISTRICT COURT'S CONCLUSION ON THIS ISSUE CONFLICTS
WITH PHILADELPHIA NATIONAL BANK, SUPRA.  THE COURT EMPHASIZED IN THAT
CASE THAT: 

"IN BANKING, AS IN MOST SERVICE INDUSTRIES, CONVENIENCE OF LOCATION
IS ESSENTIAL TO EFFECTIVE COMPETITION.  INDIVIDUALS AND CORPORATIONS
TYPICALLY CONFER THE BULK OF THEIR PATRONAGE ON BANKS IN THEIR LOCAL
COMMUNITY; THEY FIND IT IMPRACTICAL TO CONDUCT THEIR BANKING BUSINESS
AT A DISTANCE.  . .  THE FACTOR OF INCONVENIENCE LOCALIZES BANKING
COMPETITION AS EFFECTIVELY AS HIGH TRANSPORTATION COSTS IN OTHER
INDUSTRIES."  374 U.S., AT 358 FOOTNOTE AND CITATIONS OMITTED).  IN
RECOGNITION OF THE LOCAL CHARACTER OF THE GREAT MAJORITY OF COMMERCIAL
BANK ACTIVITIES, PHILADELPHIA NATIONAL BANK INDICATED THAT THE RELEVANT
GEOGRAPHIC MARKET IN BANK-MERGER CASES MUST BE DRAWN NARROWLY TO
ENCOMPASS THE AREA WHERE "THE EFFECT OF THE MERGER ON COMPETITION WILL
BE DIRECT AND IMMEDIATE."  ID., AT 357.  MOREOVER, THE GEOGRAPHIC
MARKET MUST BE DELINEATED IN A WAY THAT TAKES INTO ACCOUNT THE LOCAL
NATURE OF THE DEMAND FOR MOST BANK SERVICES.  IT "MUST BE CHARTED BY
CAREFUL SELECTION OF THE MARKET AREA IN WHICH THE SELLER OPERATED, AND
TO WHICH THE PURCHASER CAN PRACTICABLY TURN FOR (ALTERNATIVES) . . .
."  ID., AT 359 (CITATIONS, INTERNAL QUOTATIONS, AND ITALICS OMITTED). 
BECAUSE THE ECONOMIC SCALE OF SEPARATE CATEGORIES OF CONSUMERS OF BANK
SERVICES WILL VARY, A WORKABLE COMPROMISE MUST BE STRUCK "TO DELINEATE
THE AREA IN WHICH BANK CUSTOMERS THAT ARE NEITHER VERY LARGE NOR VERY
SMALL FIND IT PRACTICAL TO DO THEIR BANKING BUSINESS.  . . ."  ID., AT
361.  /7/ 

ON REMAND THE DISTRICT COURT MUST DETERMINE PURSUANT TO THE
LOCALIZED APPROACH DENOTED ABOVE THE GEOGRAPHIC MARKET IN WHICH CBN
OPERATES AND TO WHICH THE BULK OF ITS CUSTOMERS MAY TURN FOR
ALTERNATIVE COMMERCIAL BANK SERVICES.  IT MUST DO THE SAME WITH REGARD
TO FNH, FOR THIS CASE PRESENTS THE UNUSUAL FACT SITUATION OF A
CONSOLIDATION OF TWO BANKS, EACH WITH A HISTORY OF DE NOVO GEOGRAPHIC
EXPANSION, RATHER THAN THE ACQUISITION OF A GEOGRAPHICALLY STABLE BANK
AS IN MARINE BANCORPORATION, ANTE, P. 602.  THE TASK IS IMPORTANT,
BECAUSE THE DEFINITION OF THE RESPECTIVE GEOGRAPHIC MARKETS DETERMINES
THE NUMBER OF ALTERNATE AVENUES OF ENTRY THEORETICALLY OPEN TO CBN IN
PIERCING FNH'S AREA OF SIGNIFICANT COMPETITIVE INFLUENCE AND VICE
VERSA. 

WE ARE NOT AWARE OF THE DIFFICULTY OF THE ASSIGNMENT CONFRONTING THE
DISTRICT COURT.  AN ELEMENT OF "FUZZINESS WOULD SEEM INHERENT IN ANY
ATTEMPT TO DELINEATE THE RELEVANT GEOGRAPHICAL MARKET."  PHILADELPHIA
NATIONAL BANK SUPRA, AT 360 N.37.  THE TASK IS MAKE ESPECIALLY TAXING
HERE BY THE FRAGMENTED CHARACTER OF THE DISTRIBUTION OF THE BANKING
OFFICES OF THE TWO BANKS, ESPECIALLY CBN.  APPARENTLY BECAUSE THE
CONNECTICUT BRANCHING STATUTE HAS CREATED A CHECKERBOARD OF "OPEN" AND
"CLOSED"  TOWNS, SEE N.1, SUPRA, CBN AND FNH HAVE NOT EXPANDED IN THE
PAST IN A MANNER THAT PRODUCED READILY DEFINABLE, COMPLETELY COVERED
AREAS AROUND THE TOWNS WHERE THEY HAVE THEIR HOME OFFICES.  THERE IS,
FOR EXAMPLE, A GAP CONSISTING OF FOUR TOWNS IN THE EXTREME SOUTHWEST
ESTABLISHED OFFICES IN ALMOST ALL OF THE SURROUNDING TOWNS IN THAT PART
OF THE STATE.  THAT GAP PRESUMABLY WILL HAVE TO BE EXCLUDED FROM
CONSIDERATION ON REMAND. 

THE DIFFICULTY OF THE RESPONSIBILITY IMPOSED ON THE DISTRICT COURT
WITH REGARD TO DEFINING THE GEOGRAPHIC MARKETS OF THE TWO BANKS IS
AMELIORATED BY SEVERAL CONSIDERATIONS.  FIRST, THE BURDEN OF PRODUCING
EVIDENCE ON THIS SUBJECT IS ON THE GOVERNMENT.  THE GOVERNMENT
REPEATEDLY NOTES THAT IT IS NOT REQUIRED TO DEFINE GEOGRAPHIC MARKETS
BY "METES AND BOUNDS," CITING UNITED STATES V. PABST BREWING CO., 384
U.S. 546, 549 (1966).  TO THE EXTENT THAT THIS MEANS THAT SUCH MARKETS
NEED NOT--INDEED CANNOT--BE DEFINED WITH SPECIFIC PRECISION, IT IS
ACCURATE.  BUT IT IS NEVERTHELESS THE GOVERNMENT'S ROLE TO COME FORWARD
WITH EVIDENCE DELINEATING THE ROUGH APPROXIMATION OF LOCALIZED BANKING
MARKETS MANDATED BY PHILADELPHIA NATIONAL BANK, SUPRA, AND PHILLIPSBURG
NATIONAL BANK, SUPRA. 

SECOND, WE AFFIRM THAT PORTION OF THE DISTRICT COURT'S JUDGMENT
HOLDING THAT THE GOVERNMENT CANNOT RELY, WITHOUT MORE, ON STANDARD
METROPOLITAN STATISTICAL AREAS (SMSA'S) AS DEFINING THE GEOGRAPHIC
MARKETS OF THE TWO BANKS.  SEE 362 F. SUPP., AT 249 - 250, 281 - 282. 
SMSA'S ARE PREPARED BY THE OFFICE OF MANAGEMENT AND BUDGET TO DETERMINE
AREAS OF ECONOMIC AND SOCIAL INTERGRATION, PRINCIPALLY ON THE BASIS OF
THE COMMUTING PATTERNS OF RESIDENTS.  /8/  THEY ARE NOT DEFINED IN
TERMS OF BANKING CRITERIA, AND THEY WERE NOT DEVELOPED AS A TOOL FOR
ANALYZING BANKING MARKETS.  ID., AT 249.  EXCLUSIVE RELIANCE ON SMSA'S
HERE MAY LEAD TO INACCURACIES.  FOR EXAMPLE, AS THE DISTRICT COURT
NOTED, ONLY 57% OF CNB'S DEPOSITS ORIGINATE FROM THE BRIDGEPORT SMSA. 
ID., AT 250, 282.  THIS IS BECAUSE CNB'S OFFICES EXTEND TO SEVERAL AREA
OUTSIDE THE BRIDGEPORT SMSA.  THE BRIDGEPORT SMAA IS RELEVANT, IF AT
ALL, ONLY TO THE CNB OFFICES LOCATED IN BRIDGEPORT, AND EVEN THEN IT IS
AT BEST A CRUDE INDICATOR.  THE SAME IS TRUE OF THE NEW HAVEN SMAS AND
THE FNH OFFICES LOCATED IN THE TOWN OF NEW HAVEN.  IN SUM, ALTHOUGH THE
BRIDGEPORT AND NEW HAVEN SMASA'S MAY BE HELPFUL IN DEFINING THE GENERAL
METROPOLITAN CHARACTERISTICS OF SOUTHWEST CONNECTICUT, THEY ARE NOT
SUFFICIENTLY REFINED IN TERMS OF REALISTIC COMMERCIAL BANKING MARKETS
TO SATISFY THE GOVERNMENT'S BURDEN.  THE GOVERNMENT MUST DEMONSTRATE
MORE ACCURATELY THAN IS POSSIBLE SOLELY WITH SMSA'S THE LOCALIZED
BANKING MARKETS, OR AREAS OF SIGNIFICANT COMPETITIVE INFLUENCE,
SURROUNDING THE SITES WHERE CBN AND FNH MAINTAIN THEIR BANKING
OFFICES.  /9/ 

THIRD, THE DISTRICT COURT MAY NOT, AS THE BANKS WOULD HAVE IT, RELY
ON TOWNS AS THE RELEVANT GEOGRAPHIC MARKETS.  THE TOWNS SERVED BY THE
TWO BANKS ARE HIGHLY SIGNIFICANT GEOGRAPHIC UNITS, BECAUSE STATE LAW
RESTRAINTS ON DE NOVO BRANCHING ARE DEFINED IN TERMS OF TOWNS.  SEE
N.1, SUPRA.  BUT NOT ALL TOWNS ARE CLOSED TO DE NOVO BRANCHING BY ONE
OR THE OTHER BANK, AND IT SEEMS FAIR TO ASSUME THAT THE AREA OF
SIGNIFICANT COMPETITIVE INFLUENCE OF SOME BANK OFFICES MAY EXTEND
BEYOND TOWN BOUNDARIES. 

ON REMAND, THE DISTRICT COURT MUST DELINEATE THE LOCALIZED BANKING
MARKETS SURROUNDING THE SITES WHERE CNB AND FNH MAINTAIN THEIR BANK
OFFICES.  IT MUST THEN EVALUATE THE ECONOMICALLY AND LEGALLY FEASIBLE
ALTERNATIVE METHODS OF ENTRY, IF ANY, INTO THOSE AREAS AVAILABLE TO ONE
BANK OF THE OTHER.  IN SO DOING, IT SHOULD KEEP IN MIND THE
CONSIDERATIONS OUTLINED TODAY IN MARINE BANCORPORATION, ANTE, P. 602. 
/10/ 

IN CONFORMITY WITH ITS APPROACH IN MARINE BANCORPORATION, THE
GOVERNMENT ARGUES THAT THE STATE AS A WHOLE, ALTHOUGH NOT A BANKING
MARKET, IS NONETHELESS A "SECTION OF THE COUNTRY" WITHIN THE MEANING OF
7 OF THE CLAYTON ACT.  THE GOVERNMENT REPEATS THE CONCERN EXPRESSED IN
MARINE BANCORPORATION, SEE ANTE, AT 620, THAT A STATEWIDE LINKAGE OF
OLIGOPOLIES "MAY ARISE AND THAT LARGE BANKS ACROSS THE STATE "MAY
ENGAGE" IN MORE STANDARDIZED BEHAVIOR AS A RESULT.  /11/  MOREOVER, THE
GOVERNMENT CONTENDS THAT A STATEWIDE APPROACH IS APPROPRIATE BECAUSE
THA CHALLENGED CONSOLIDATION WOULD ELIMINATE ONE OF THE EIGHT BANKS IN
CONNECTICUT WITH THE POTENTIAL FOR STATEWIDE OPERATION.  "THUS THE
EFFECT OF A MERGER WHICH ELIMINATES EVEN ONE OF THESE BANKS WILL BE
FELT STATEWIDE, FOR IT WILL HAVE AN IMPACT IN EVERY LOCAL MARKET IN THE
STATE WHERE THE BANK DOES NOT CURRENTLY OPERATE BUT WHICH IT MIGHT
OTHERWISE ENTER."  /12/ 

WE REJECT THE GOVERNMENT'S STATEWIDE APPROACH HERE, AS WE DID IN
MARINE BANCORPORATION, ANTE, AT 620.  THE GOVERNMENT'S ARGUMENT THAT "A
GEOGRAPHIC AREA NEED NOT BE A BANKING MARKET TO BE A SECTION OF THE
COUNTRY . . ."  /13/  IS FORECLOSED BY THE PRECEDENTS.  ANTE, AT 620 -
622.  ITS THEORY OF LINKED OLIGOPOLIES APPEARS TO BE AS DEVOID OF
EVIDENTIARY SUPPORT HERE AS IT WAS IN MARINE BANCORPORATION.  FINALLY,
ITS CONCERN FOR ANY AREA OF THE STATE IN WHICH CNB OR FNH "MIGHT" ENTER
INDEPENDENTLY OF THE CONSOLIDATION IS TOO SPECULATIVE TO ESTABLISH A
CASE UNDER THE CLAYTON ACT.  IN ADVANCING THE LATTER ARGUMENT, THE
GOVERNMENT BORDERS ON ESPOUSING A PER SE RULE AGAINST GEOGRAPHIC MARKET
EXTENSION MERGERS BY CONNECTICUT COMMERCIAL BANKS SO LONG AS ANY TOWN
IN THE STATE REMAINS OPEN TO DE NOVO BRANCHING.  ON REMAND THE DISTRICT
COURT WILL ADDRESS ITSELF TO THE GEOGRAPHIC MARKETS IN WHICH CNB AND
FNH PRESENTLY OPERATE.  /14/ 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR FURTHER
CONSIDERATION CONSISTENT WITH THIS OPINION. 

  IT IS SO ORDERED. 

/1/  UNDER STATE LAW IN CONNECTICUT, COMMERCIAL BANKS MAY NOT BRANCH
INTO A TOWN CONTAINING THE MAIN OFFICE OF ANOTHER BANK (THE SO-CALLED
"HOME OFFICE PROTECTION" PROVISION).  CONN. GEN. STAT. REV. 36 - 59
(1972).  TOWNS THAT CONTAIN THE MAIN OFFICE OF A BANK ARE REFERRED TO
AS "CLOSED" TOWNS.  THE REMAINING TOWNS ARE "OPEN TOWNS."  THE TERM
"TOWN" IN CONNECTICUT REFERS TO A POLITICAL SUBDIVISION OF THE STATE,
SOMEWHAT ANALOGOUS TO COUNTIES IN OTHER STATES.  IT DOES NOT DENOTE A
METROPOLITAN AREA, ALTHOUGH SOME CITIES ARE MORE OR LESS CONGRUENT WITH
THE TOWNS IN WHICH THEY ARE LOCATED. 

THERE ARE 169 TOWNS IN CONNECTICUT.  THE EFFECT OF THE 'HOME OFFICE
PROTECTION" PROVISION IS TO CREATE A CHECKERBOARD OF "OPEN" AND
"CLOSED" TOWNS REFLECTING THE LOCATION OF THE MAIN OFFICES OF THE BANKS
OPERATING IN THE STATE.  STATE LAW FORBIDS ANY BANK THAT DOES NOT HAVE
ITS HEADQUARTERS IN CONNECTICUT FROM OPERATING BANKING OFFICES WITHIN
THE STATE.  CONN. GEN. STAT. REV. 36 - 59 (4). 

/2/  SEE 362 F. SUPP. 240, 281.  THE RELEVANT PROVISION OF THE BANK
MERGER ACT OF 1966, 80 STAT. 8, 12 U.S.C. 1828 (C) (5) (B), PROSCRIBES
ANY BANK CONSOLIDATION 

"WHOSE EFFECT IN ANY SECTION OF THE COUNTRY MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY, OR WHICH IN ANY
OTHER MANNER WOULD BE IN RESTRAINT OF TRADE, UNLESS.  . . THE
ANTICOMPETITIVE EFFECTS OF THE PROPOSED TRANSACTION ARE CLEARLY
OUTWEIGHED IN THE PUBLIC INTEREST BY THE PROBABLE EFFECT OF THE
TRANSACTION IN MEETING THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE
SERVED." 

1125, 15 U.S.C. 18, BY COMPARISION PROVIDES IN PERTINENT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 
/3/  AS WE HAVE NOTED, THE DISTRICT COURT IDENTIFIED SOME OF THE
SERVICES OFFERED BY BOTH SAVINGS AND COMMERCIAL BANKS, INCLUDING REAL
ESTATE MORTGAGES, PERSONAL LOANS, AND TIME DEPOSITS.  AS THE DISTRICT
COURT PUT IT IN ANOTHER CONTEXT,IT WOULD BE "OSTRICH-LIKE," 362 F.
SUPP., AT 254, TO ASSUME THAT THE TWO TYPES OF BANKS ARE NOT IN DIRECT
AND VIGOROUS COMPETITION WITH REGARD TO THE SERVICES THEY SHARE OR ARE
NOT VIEWED BY MANY BANK CUSTOMERS AS MORE OR LESS FUNGIBLE FOR PURPOSES
OF THOSE SERVICES.  CF. UNITED STATES V. PHILLIPSBURG NATIONAL BANK,
399 U.S. 350, 360 (1970).  THAT SAVINGS AND COMMERCIAL BANKS ARE DIRECT
COMPETITORS IN SOME SUBMARKETS, HOWEVER, IS NOT THE END OF THE INQUIRY,
AS PHILLIPSBURG MAKES CLEAR.  IBID.     /4/  APP. 1793. 

/5/  ID., AT 1795. 

/6/  THE PERTINENT PROVISIONS OF CONN. PUB. ACT NO 73 - 195 WILL
TAKE EFFECT NO LATER THAN DECEMBER 31, 1975, ALTHOUGH THE ENACTMENT OF
CERTAIN FEDERAL LEGISLATION OR OTHER SPECIFIED EVENTS NOT RELEVANT HERE
MAY TRIGGER THOSE PROVISIONS AT AN EARLIER DATE.  SEE ID., 7. 

/7/  THE COURT'S APPROACH IN PHILADELPHIA NATIONAL BANK TO DEFINING
GEOGRAPHIC MARKETS FOR COMMERCIAL BANKS WAS REAFFIRMED IN PHILLIPSBURG
NATIONAL BANK, 399 U.S., AT 362 - 365. 

/8/  APP. 1435 - 1437. 

/9/  THE FEDERAL BANK REGULATORY AGENCIES DEFINE A BANK'S SERVICE
AREA AS THE GEOGRAPHIC AREA FROM WHICH THE BANK DERIVES 75% OF ITS
DEPOSITS.  SEE 362 F. SUPP., AT 250.  THE SERVICE-AREA CONCEPT MAY BE
CONSIDERABLY MORE USEFUL IN THIS CASE THAN SMSA'S, ALTHOUGH THIS IS A
MATTER WE LEAVE TO THE DISTRICT COURT ON REMAND. 

IN MARINE BANCORPORATION, ANTE, AT 619, WE AFFIRMED THE DISTRICT
COURT'S DETERMINATION OF THE SPOKANE METROPOLITAN AREA AS THE RELEVANT
GEOGRAPHIC MARKET.  THAT HOLDING WAS NOT AN AFFIRMATION OF SMSA'S AS
BANKING MARKETS; SMSA'S WERE NOT AT ISSUE IN THAT CASE.  THE SPOKANE
METROPOLITAN AREA WAS DEFINED AS THE RELEVANT GEOGRAPHIC MARKET IN
MARINE BANCORPORATION BECAUSE IT IS AN INSULATED BANKING MARKET, IS
COMPARATIVELY SMALL BE GEOGRAPHIC STANDARDS IN THE WESTERN STATES,
CONTAINS ALL THE BANKING OFFICES OF THE TARGET BANK, AND IS THE AREA
FROM WHICH THAT BANK DRAWS SOME 90% OF ITS DEPOSIT ACCOUNTS. 

/10/  WE NOTE THAT IT IS NOT AT ALL CLEAR THAT THE DISTRICT COURT'S
HOLDINGS AS TO POTENTIAL COMPETITION WERE BASED ON A STATEWIDE
APPRAISAL OF THE CONSOLIDATION AT ISSUE, DESPITE ITS CONCLUSION THAT
THE STATE WAS THE RELEVANT SECTION OF THE COUNTRY.  FOR EXAMPLE, THE
COURT'S FINDINGS WITH REGARD TO "TOEHOLD" ACQUISITIONS REFER TO SMSA'S,
TOWNS, AND SERVICE AREAS, 362 F. SUPP., AT 265, AND ITS CONCLUSIONS
UNDER THE HEADING OF "POTENTIAL COMPETITION" SPEAK OF SERVICE AREA,
SERVICE MARKET, AND TOWNS.  ID., AT 286 - 287.  BECAUSE THE DISTRICT
COURT.  DID NOT CLARIFY WHAT LOCAL AREA, IF ANY, IT CONSIDERED
CONTROLLING FOR PURPOSES OF THE POTENTIAL-COMPETITION DOCTRINE, WE ARE
UNABLE TO HOLD THAT ITS ERROR IN DENOTING THE STATE AS THE RELEVANT

/11/ BRIEF FOR UNITED STATES 34. 

/12/  ID., AT 33. 

/13/  ID., AT 31. 

/14/  THE DISTRICT COURT ALSO CONCLUDED THAT ASSUMING, ARGUENDO,
THAT THE CONSOLIDATION VIOLATED THE CLAYTON ACT, IT NONETHELESS MET THE
STANDARDS OF THE "CONVENIENCE AND NEEDS" TEST OF THE BANK MERGER ACT OF
1966, 12 U.S.C. 1828 (C) (5) (B).  362 F. SUPP., AT 288.  ITS FINDINGS
ON THE "CONVENIENCE AND NEEDS" DEFENSE ARE NOT CONTROLLING, HOWEVER, IF
IT ERRED IN THE STANDARDS APPLIED IN JUDGING THE STATUS OF THE
CONSOLIDATION UNDER THE CLAYTON ACT.  UNITED STATES V. THIRD NATIONAL
BANK, 390 U.S. 171, 183 - 184 (1968).  SEE ALSO PHILLIPSBURG NATIONAL
BANK, 399 U.S., AT 369 - 370. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, CONCURRING IN PART AND
DISSENTING IN PART. 

ALTHOUGH I AGREE WITH PART I OF THE MAJORITY OPINION, AS TO THE
RELEVANT LINE OF COMMERCE, I DISSENT FROM THAT PART OF THE OPINION
DEALING WITH THE DETERMINATION OF A RELEVANT GEOGRAPHIC MARKET. 

THE COURT HOLDS THAT "THE RELEVANT GEOGRAPHIC MARKET OF THE ACQUIRED
BANK IS THE LOCALIZED AREA IN WHICH THAT BANK IS IN SIGNIFICANT, DIRECT
COMPETITION WITH OTHER BANKS, ALBEIT NOT THE ACQUIRING BANK," RELYING
ON A STATEMENT TO SIMILAR EFFECT IN UNITED STATES V. MARINE
BANCORPORATION, INC., ANTE, P. 602.  ACCORDINGLY, THE COURT REJECTS THE
PROPOSITION, WHICH THE APPELLEE BANKS ACCEPTED BELOW, /1/  THAT THE
MERGER OF FNH AND CNB SHOULD BE ANALYZED IN TERMS OF ITS EFFECT ON
POSSIBLE POTENTIAL COMPETITION IN AREA NOT IN OR ADJACENT TO THE NEW
HAVEN AND BRIDGEPORT MARKETS, HOWEVER THOSE MARKETS ARE TO BE DEFINED. 

  THERE IS CERTAINLY NOTHING IN THIS COURT'S PAST CASES ON MERGERS
UNDER CLAYTON 7 WHICH REQUIRES THIS RESULT.  EVEN IF BRIDGEPORT AND NEW
HAVEN ARE RELEVANT GEOGRAPHIC MARKETS, THERE CAN BE MORE THAN ONE
RELEVNAT GEOGRAPHIC MARKET IN WHICH TO TEST THE POSSIBLE EFFECTS OF A
MERGER.  SECTION 7 OF THE CLAYTON ACT SPEAKS TO LESSENING COMPETITION
"IN ANY SECTION OF THE COUNTRY", AND AS THE MAJORITY ACKNOWLEDGES IN
MARINE BANCORPORATION, ANTE, AT 621 N.20, IN UNITED STATES V. PABST
BREWING CO., 384 U.S. 546 (1966), THE COURT "HELD THAT IN WHICH THE
ACQUIRED FIRM ACTUALLY MARKETED ITS PRODUCTS--A SINGLE STATE, A MULTI
STATE AREA, AND THE NATION AS A WHOLE."  TO BE SURE, THE SELECTION OF
ANY RELEVANT GEOGRAPHIC MARKET IN A BANKING CASE MUST BE CHOSEN IN
TERMS OF THE NEEDS OF THE CUSTOMERS AND THE AREA IN WHICH SELLERS
OPERATE, UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 357
- 359 (1963), BUT THIS MAY RESULT IN SEVERAL POSSIBLE MARKETS,
ESPECIALLY IN A POTENTIAL-COMPETITION CASE WHERE A MERGER MIGHT AFFECT
THE ECONOMIC BEHAVIOR OF EXISTING FIRMS IN VARIOUS MARKETS. 

AS I READ THE MAJORITY OPINION, IF ONE ASSUMED THAT FNH AND CNB WERE
THE TWO LARGEST BANKS IN CONNECTICUT, AND, ALTHOUGH LOCATED IN
SOUTHWEST CONNECTICUT, BOTH AHD THE CAPABILITY AND INTEREST TO ENTER A
CONCENTRATED BANKING MARKET IN NORTHEAST CONNECTICUT, IT WOULD BE
IMPROPER FOR THE GOVERNMENT TO OPPOSE THEIR MERGER, SINCE NEITHER BANK
HAD AS YET ENTERED THE NORTHEAST CONNECTICUT BANKING MARKET.  THE
MAJORITY DESCRIBES THE POSSIBILITY OF SUCH DUAL ENTRY AS "TOO
SPECULATIVE."  ANTE, AT 673.  WHAT IS A RELEVANT GEOGRAPHIC MARKET IS
AN ISSUE ENTIRELY DISTINCT FROM WHO IS A POTENTIAL COMPETITOR.  IT IS
OBVIOUS, FOR EXAMPLE, THAT WHILE NEW HAVEN AND/OR ITS ENVIRONS IS A
RELEVANT MARKET OF BANKING COMPETITION, IT MAY NONETHELESS BE TRUE THAT
CNB MAY NOT PROVE TO BE A POTENTIAL COMPETITOR WITH RESPECT TO THAT
MARKET.  IT, THEREFORE, FOLLOWS THAT WHETHER THE BANKING MARKET IN
NORTHEAST CONNECTICUT IS A RELEVANT BANKING MARKET, IS A QUESTION
ENTIRELY SEPARATE FROM WHETHER FNH AND/OR CNB SHOULD BE CONSIDERED
POTENTIAL COMPETITORS IN THAT MARKET, AND WHETHER THE ELIMINATION OF
ONE OF THOSE COMPETITORS LESSEN EITHER THE POSSIBILITY OF
DECONCENTRATION IN THAT MARKET OR, UNDER THE "WINGS THEORY," AFFECTS
PRESENT COMPETITION IN THAT MARKET.  SINCE THE MAJORITY PROFESSES TO
LEAVE ISSUES OF POTENTIAL COMPETITION TO THE DISTRICT COURT ON REMAND,
IT SHOULD NOT PRECLUDE A FINDING THAT THIS MERGER WILL AFFECT BANKING
COMPETITION IN AREAS OF THE STATE OTHER THAN BRIDGEPORT OR NEW HAVEN. 
THE POSSIBILITY OF FINDING MANY BANKING MARKETS IN CONNECTICUT IS AN
ENTIRELY SEPARATE MATTER FROM FINDING ONE BANKING MARKET IN THE STATE
UNDER A THEORY OF STATEWIDE LINKAGE OF OLIGOPOLIES.  THE LATTER ASSUMES
THAT A SECTION OF THE COUNTRY NEED NOT BE A BANKING MARKET; THE FORMER
DOES NOT. 

I AGREE THAT THE CASE SHOULD BE REMANDED.  AS I UNDERSTAND THE TASK
OF THE DISTRICT COURT, ONCE IT HAS DECIDED WHAT THE RELEVANT GEOGRAPHIC
MARKETS ARE, THE CASE IS TO BE ANAYLZED IN TERMS OF THE "WINGS THEORY"
OF POTENTIAL COMPETITION ENUNCIATED IN UNITED STATES V. FALSTAFF
BREWING CORP., 410 U.S. 526 (1973), AND THE DECONCENTRATION THEORY NOW
ACCEPTED BY THIS COURT IN MARINE BANCORPORATION.  AS TO THESE MATTERS,
I ADHERE TO MY VIEWS AS STATED IN MARINE BANCORPORATION. 

/1/  ONE OF THE PRINCIPLE WITNESSES PRESENTED BY THE APPELLEE BANKS,
DR. PECK, ANALYZED THE EFFECT OF THIS MERGER, AND THE REMOVAL OF FNH AS
A POTENTIAL COMPETITOR, ALONG WITH CNB, ON THE VARIOUS BANKING MARKETS
IN THE STATE. 

HOWARD E. SHAPIRO ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
KAUPER, ROBERT B. NICHOLSON, AND JOHN W. CLARK. 

GEORGE D. REYCRAFT ARGUED THE CAUSE FOR APPELLEES CONNECTICUT
NATIONAL BANK ET AL. WITH HIM ON THE BRIEF WERE JOHN BOYER, HAVEN C.
ROOSEVELT, AND RICHARD G. BELL.  LEE LOEVINGER ARGUED THE CAUSE FOR
APPELLEE COMPTROLLER OF THE CURRENCY.  WITH HIM ON THE BRIEF WERE
ROBERT BLOOM AND CHARLES H. MCENERNEY, JR.
..END :









UNITED STATES V. RICHARDSON, 418 U.S. 166 


       OCTOBER TERM, 1973

        UNITED STATES ET AL. V. RICHARDSON

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

NO. 72 - 885.  ARGUED OCTOBER 10, 1973--DECIDED JUNE 25,

          1974; 465 F. 2D 844, REVERSED. 


    RESPONDENT, AS A FEDERAL TAXPAYER, BROUGHT THIS SUIT FOR THE

  PURPOSE OF OBTAINING A DECLARATION OF UNCONSTITUTIONALITY OF THE

  CENTRAL INTELLIGENCE AGENCY ACT, WHICH PERMITS THE CIA TO ACCOUNT

  FOR ITS EXPENDITURES "SOLELY ON THE CERTIFICATE OF THE DIRECTOR .

  . . ."  50 U.S.C. 403J (B).  THE COMPLAINT ALLEGED THAT THE ACT

  VIOLATED ART, I, 9, CL. 7, OF THE CONSTITUTION INSOFAR AS THAT

  CLAUSE REQUIRES A REGULAR STATEMENT AND ACCOUNT OF PUBLIC FUNDS. 

  THE DISTRICT COURT'S DISMISSAL OF THE COMPLAINT FOR, INTER ALIA,

  RESPONDENT'S LACK OF STANDING UNDER FLAST V. COHEN, 392 U.S. 83,

  WAS REVERSED BY THE COURT OF APPEALS.  THAT COURT HELD THAT

  RESPONDENT HAD STANDING AS A TAXPAYER ON THE GROUND THAT HE

  SATISFIED FLAST'S REQUIREMENTS THAT THE ALLEGATIONS (1) CHALLENGE

  AN ENACTMENT UNDER THE TAXING AND SPENDING CLAUSE OF ART. I, 8,

  AND SHOW (2) A "NEXUS" BETWEEN THE PLAINTIFF'S STATUS AND A

  SPECIFIC CONSTITUTIONAL LIMITATION ON THE TAXING AND SPENDING

  POWER.  HELD:  RESPONDENT LACKS STANDING TO MAINTAIN THIS SUIT. 

  PP. 171 - 180. 

     (A) FLAST, WHICH STRESSED THE NEED FOR MEETING THE
REQUIREMENTS

  OF ART. III DID NOT "UNDERMINE THE SALUTARY PRINCIPLE . . .

  ESTABLISHED BY FROTHINGHAM (V. MELLON, 262 U.S. 477) . . . THAT A

  TAXPAYER MAY NOT 'EMPLOY A FEDERAL COURT AS A FORUM IN WHICH TO

  AIR HIS GENERALIZED GRIEVANCES ABOUT THE CONDUCT OF GOVERNMENT OR

  THE ALLOCATION OF POWER IN THE FEDERAL SYSTEM.'"  PP. 171 - 174. 

     (B) RESPONDENT'S CHALLENGE, NOT BEING ADDRESSED TO THE TAXING

  OR SPENDING POWER BUT TO THE STATUTES REGULATING THE CIA'S

  ACCOUNTING AND REPORTING PROCEDURES, PROVIDES NO "LOGICAL NEXUS"

  BETWEEN HIS STATUS AS "TAXPAYER" AND THE ASSERTED FAILURE OF

  CONGRESS TO REQUIRE MORE DETAILED REPORTS OF EXPENDITURES OF THE

  CIA.  PP. 174 - 175. 

     (C) RESPONDENT'S CLAIM THAT WITHOUT DETAILED INFORMATION ON
THE

  CIA'S EXPENDITURES HE CANNOT PROPERLY FOLLOW LEGISLATIVE OR

  EXECUTIVE ACTION AND THEREBY FULFILL HIS OBLIGATIONS AS A VOTER

  IS A GENERALIZED GRIEVANCE INSUFFICIENT UNDER FROTHINGHAM OR

  FLAST TO SHOW THAT "HE HAS SUSTAINED OR IS IMMEDIATELY IN DANGER

  OF SUSTAINING A DIRECT INJURY AS THE RESULT" OF SUCH ACTION.  EX

PARTE LEVITT, 302 U.S. 633, 634.  PP. 176 - 178. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  POWELL, J., FILED A
CONCURRING OPINION, POST, P. 180.  DOUGLAS, J., FILED A DISSENTING
OPINION, POST, P. 197.  BRENNAN, J., FILED A DISSENTING OPINION, POST,
P. 235.  STEWART, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL,
J., JOINED, POST, P. 202. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO DETERMINE WHETHER THE
RESPONDENT HAS STANDING TO BRING AN ACTION AS A FEDERAL TAXPAYER /1/
ALLEGING THAT CERTAIN PROVISIONS CONCERNING PUBLIC REPORTING OF
EXPENDITURES UNDER THE CENTRAL INTELLIGENCE AGENCY ACT OF 1949, 63
STAT. 208, 50 U.S.C. 403A ET SEQ., VIOLATE ART. I, 9, CL. 7, OF THE
CONSTITUTION WHICH PROVIDES: 

     "NO MONEY SHALL BE DRAWN FROM THE TREASURY, BUT IN CONSEQUENCE

 OF APPROPRIATIONS MADE BY LAW; AND A REGULAR STATEMENT AND

  ACCOUNT OF THE RECEIPTS AND EXPENDITURES OF ALL PUBLIC MONEY

  SHALL BE PUBLISHED FROM TIME TO TIME." 

RESPONDENT BROUGHT THIS SUIT IN THE UNITED STATES DISTRICT COURT ON
A COMPLAINT IN WHICH HE RECITES ATTEMPTS TO OBTAIN FROM THE GOVERNMENT
INFORMATION CONCERNING DETAILED EXPENDITURES OF THE CENTRAL
INTELLIGENCE AGENCY.  ACCORDING TO THE COMPLAINT, RESPONDENT WROTE TO
THE GOVERNMENT PRINTING OFFICE IN 1967 AND REQUESTED THAT HE BE
PROVIDED WITH THE DOCUMENTS "PUBLISHED BY THE GOVERNMENT IN COMPLIANCE
WITH ARTICLE I, SECTION 9, CLAUSE (7) OF THE UNITED STATES
CONSTITUTION."  THE FISCAL SERVICE OF THE BUREAU OF ACCOUNTS OF THE
DEPARTMENT OF THE TREASURY REPLIED, EXPLAINING THAT IT PUBLISHED THE
DOCUMENT KNOWN AS THE COMBINED STATEMENT OF RECEIPTS, EXPENDITURES, AND
BALANCES OF THE UNITED STATES GOVERNMENT.  SEVERAL COPIES OF THE
MONTHLY AND DAILY REPORTS OF THE OFFICE WERE SENT WITH THE LETTER. 
RESPONDENT THEN WROTE TO THE SAME OFFICE AND, QUOTING PART OF THE CIA
ACT, ASKED WHETHER THIS STATUTE DID NOT "CAST REFLECTION UPON THE
AUTHENTICITY OF THE TREASURY'S STATEMENT."  HE ALSO INQUIRED AS TO HOW
HE COULD RECEIVE FURTHER INFORMATION ON THE EXPENDITURES OF THE CIA. 
THE BUREAU OF ACCOUNTS REPLIED STATING THAT IT HAD NO OTHER AVAILABLE
INFORMATION. 

IN ANOTHER LETTER, RESPONDENT ASSERTED THAT THE CIA ACT WAS
REPUGNANT TO THE CONSTITUTION AND REQUESTED THAT THE TREASURY
DEPARTMENT SEEK AN OPINION OF THE ATTORNEY GENERAL.  THE DEPARTMENT
ANSWERED DECLINING TO SEEK SUCH AN OPINION AND THIS SUIT FOLLOWED. 
RESPONDENT'S COMPLAINT ASKED THE COURT TO "ISSUE A PERMANENT INJUNCTION
ENJOINING THE DEFENDANTS FROM PUBLISHING THEIR 'COMBINED STATEMENT OF
RECEIPTS, EXPENDITURES AND BALANCES OF THE UNITED STATES GOVERNMENT'
AND REPRESENTING IT AS THE FULFILLMENT OF THE MANDATES OF ARTICLE I
IN ESSENCE, THE RESPONDENT ASKED THE FEDERAL COURT TO DECLARE
UNCONSTITUTIONAL THAT PROVISION OF THE CENTRAL INTELLIGENCE AGENCY ACT
WHICH PERMITS THE AGENCY TO ACCOUNT FOR ITS EXPENDITURES "SOLELY ON THE
CERTIFICATE OF THE DIRECTOR . . . ."  50 U.S.C. 403J (B).  THE ONLY
INJURY ALLEGED BY RESPONDENT WAS THAT HE "CANNOT OBTAIN A DOCUMENT THAT
SETS OUT THE EXPENDITURES AND RECEIPTS" OF THE CIA BUT ON THE CONTRARY
WAS "ASKED TO ACCEPT A FRAUDULENT DOCUMENT."  THE DISTRICT COURT
GRANTED A MOTION FOR DISMISSAL ON THE GROUND RESPONDENT LACKED STANDING
UNDER FLAST V. COHEN, 392 U.S. 83 (1968), AND THAT THE SUBJECT MATTER
RAISED POLITICAL QUESTIONS NOT SUITED FOR JUDICIAL DISPOSITION. 

THE COURT OF APPEALS SITTING EN BANC, WITH THREE JUDGES DISSENTING,
REVERSED, 465 F.2D 844 (CA3 1972), HOLDING THAT THE RESPONDENT HAD
STANDING TO BRING THIS ACTION.  /3/  THE MAJORITY RELIED CHIEFLY ON
FLAST V. COHEN, SUPRA, AND ITS TWO-TIER TEST THAT TAXPAYER STANDING
RESTS ON A SHOWING OF (A) A "LOGICAL LINK"  BETWEEN THE STATUS AS A
TAXPAYER AND THE CHALLENGED LEGISLATIVE ENACTMENT, I. E., AN ATTACK ON
AN ENACTMENT UNDER THE TAXING AND SPENDING CLAUSE OF ART. I, 8, OF THE
CONSTITUTION; AND (B) A "NEXUS" BETWEEN THE PLAINTIFF'S STATUS AND A
SPECIFIC CONSTITUTIONAL LIMITATION IMPOSED ON THE TAXING AND SPENDING
POWER.  392 U.S., AT 102 - 103.  WHILE NOTING THAT THE RESPONDENT DID
NOT DIRECTLY ATTACK AN APPROPRIATIONS ACT, AS DID THE PLAINTIFF IN
FLAST, THE COURT OF APPEALS CONCLUDED THAT THE CIA STATUTE CHALLENGED
BY THE RESPONDENT WAS "INTEGRALLY RELATED," 465 F.2D, AT 853, TO HIS
ABILITY TO CHALLENGE THE APPROPRIATIONS SINCE HE COULD NOT QUESTION AN
APPROPRIATION ABOUT WHICH HE HAD NO KNOWLEDGE.  THE COURT OF APPEALS
SEEMED TO REST ITS HOLDING ON AN ASSUMPTION THAT THIS CASE WAS A
PRELUDE TO A LATER CASE CHALLENGING, ON THE BASIS OF INFORMATION
OBTAINED IN THIS SUIT, SOME PARTICULAR APPROPRIATION FOR OR EXPENDITURE
OF THE CIA; RESPONDENT STATED NO SUCH AN INTENTION IN HIS COMPLAINT. 
THE DISSENTERS TOOK A DIFFERENT APPROACH URGING DENIAL OF STANDING
PRINCIPALLY BECAUSE, IN THEIR VIEW, RESPONDENT ALLEGED NO SPECIFIC
INJURY BUT ONLY A GENERAL INTEREST COMMON TO ALL MEMBERS OF THE
PUBLIC. 

WE CONCLUDE THAT RESPONDENT LACKS STANDING TO MAINTAIN A SUIT FOR
THE RELIEF SOUGHT AND WE REVERSE. 

 I 

AS FAR BACK AS MARBURY V. MADISON, 1 CRANCH 137 (1803), THIS COURT
HELD THAT JUDICIAL POWER MAY BE EXERCISED ONLY IN A CASE PROPERLY
BEFORE IT--A "CASE OR CONTROVERSY" NOT SUFFERING ANY OF THE LIMITATIONS
OF THE POLITICAL-QUESTION DOCTRINE, NOT THEN MOOT OR CALLING FOR AN
ADVISORY OPINION.  IN BAKER V. CARR, 369 U.S. 186, 204 (1962), THIS
LIMITATION WAS DESCRIBED IN TERMS THAT A FEDERAL COURT CANNOT 

"'PRONOUNCE ANY STATUTE, EITHER OF A STATE OR OF THE UNITED STATES,
VOID, BECAUSE IRRECONCILABLE WITH THE CONSTITUTION, EXCEPT AS IT IS
CALLED UPON TO ADJUDGE THE LEGAL RIGHTS OF LITIGANTS IN ACTUAL
CONTROVERSIES.'  LIVERPOOL STEAMSHIP CO. V. COMMISSIONERS OF
EMIGRATION, 113 U.S. 33, 39."  RECENTLY IN ASSOCIATION OF DATA
PROCESSING SERVICE ORGANIZATIONS, INC. V. CAMP, 397 U.S. 150 (1970),
THE COURT, WHILE NOTING THAT "(GENERALIZATIONS ABOUT STANDING TO SUE
ARE LARGELY WORTHLESS AS SUCH," ID., AT 151, EMPHASIZED THAT "(ONE
GENERALIZATION IS, HOWEVER, NECESSARY AND THAT IS THAT THE QUESTION OF
STANDING IN THE FEDERAL COURTS IS TO BE CONSIDERED IN THE FRAMEWORK OF
ARTICLE III WHICH RESTRICTS JUDICIAL POWER TO 'CASES' AND
'CONTROVERSIES.'"  /4/ 

ALTHOUGH THE RECENT HOLDING OF THE COURT IN FLAST V. COHEN, SUPRA,
IS A STARTING POINT IN AN EXAMINATION OF RESPONDENT'S CLAIM TO
PROSECUTE THIS SUIT AS A TAXPAYER, THAT CASE MUST BE READ WITH
REFERENCE TO ITS PRINCIPAL PREDECESSOR, FROTHINGHAM V. MELLON, 262 U.S.
447 (1923).  IN FROTHINGHAM, THE INJURY ALLEGED WAS THAT THE
CONGRESSIONAL ENACTMENT CHALLENGED AS UNCONSTITUTIONAL WOULD, IF
IMPLEMENTED, INCREASE THE COMPLAINANT'S FUTURE FEDERAL INCOME TAXES. 
/5/  DENYING STANDING, THE FROTHINGHAM COURT RESTED ON THE
"COMPARATIVELY MINUTE(,) . . . REMOTE, FLUCTUATING AND UNCERTAIN," ID.,
AT 487, IMPACT ON THE TAXPAYER, AND THE FAILURE TO ALLEGE THE KIND OF
DIRECT INJURY REQUIRED FOR STANDING. 

"THE PARTY WHO INVOKES THE (JUDICIAL) POWER MUST BE ABLE TO SHOW NOT
ONLY THAT THE STATUTE IS INVALID BUT THAT HE HAS SUSTAINED OR IS
IMMEDIATELY IN DANGER OF SUSTAINING SOME DIRECT INJURY AS THE RESULT OF
ITS ENFORCEMENT, AND NOT MERELY THAT HE SUFFERS IN SOME INDEFINITE WAY
IN COMMON WITH PEOPLE GENERALLY."  ID., AT 488. 

WHEN THE COURT ADDRESSED THE QUESTION OF STANDING IN FLAST, MR.
CHIEF JUSTICE WARREN TRACED WHAT HE DESCRIBED AS THE "CONFUSION"
FOLLOWING FROTHINGHAM AS TO WHETHER THE COURT HAD ANNOUNCED A
CONSTITUTIONAL DOCTRINE BARRING SUITS BY TAXPAYERS CHALLENGING FEDERAL
EXPENDITURES AS UNCONSTITUTIONAL OR SIMPLY A POLICY RULE OF JUDICIAL
SELF-RESTRAINT.  IN AN EFFORT TO CLARIFY THE CONFUSION AND TO TAKE INTO
ACCOUNT INTERVENING DEVELOPMENTS, OF WHICH CLASS ACTIONS AND JOINDER
UNDER THE FEDERAL RULES OF CIVIL PROCEDURE WERE GIVEN AS EXAMPLES, THE
COURT EMBARKED ON "A FRESH EXAMINATION OF THE LIMITATIONS UPON STANDING
TO SUE IN A FEDERAL COURT AND THE APPLICATION OF THOSE LIMITATIONS TO
TAXPAYER SUITS."  392 U.S., AT 94.  THAT RE-EXAMINATION LED, HOWEVER,
TO THE HOLDING THAT A "TAXPAYER WILL HAVE STANDING CONSISTENT WITH
ARTICLE III TO INVOKE FEDERAL JUDICIAL POWER WHEN HE ALLEGES THAT
CONGRESSIONAL ACTION UNDER THE TAXING AND SPENDING CLAUSE IS IN
DEROGATION OF THOSE CONSTITUTIONAL PROVISIONS WHICH OPERATE TO RESTRICT
THE EXERCISE OF THE TAXING AND SPENDING POWER."  ID., AT 105 - 106. 
(EMPHASIS SUPPLIED.)  IN SO HOLDING, THE COURT EMPHASIZED THAT ART. III
REQUIREMENTS ARE THE THRESHOLD INQUIRY: 

"THE 'GIST OF THE QUESTION OF STANDING' IS WHETHER THE PARTY SEEKING
RELIEF HAS 'ALLEGED SUCH A PERSONAL STAKE IN THE OUTCOME OF THE
CONTROVERSY AS TO ASSURE THAT CONCRETE ADVERSENESS . . . UPON WHICH THE
COURT SO LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULT CONSTITUTIONAL
QUESTIONS.'"  ID., AT 99, CITING BAKER V. CARR, 369 U.S., AT 204.  THE
COURT THEN ANNOUNCED A TWO-PRONGED STANDING TEST WHICH REQUIRES
ALLEGATIONS: (A) CHALLENGING AN ENACTMENT UNDER THE TAXING AND SPENDING
CLAUSE OF ART. I, 8, OF THE CONSTITUTION; AND (B) CLAIMING THAT THE
CHALLENGED ENACTMENT EXCEEDS SPECIFIC CONSTITUTIONAL LIMITATIONS
IMPOSED ON THE TAXING AND SPENDING POWER.  392 U.S., AT 102 - 103. 
WHILE THE "IMPENETRABLE BARRIER TO SUITS AGAINST ACTS OF CONGRESS
BROUGHT BY INDIVIDUALS WHO CAN ASSERT ONLY THE INTEREST OF FEDERAL
TAXPAYERS," ID., AT 85, HAD BEEN SLIGHTLY LOWERED, THE COURT MADE CLEAR
IT WAS REAFFIRMING THE PRINCIPLE OF FROTHINGHAM PRECLUDING A TAXPAYER'S
USE OF "A FEDERAL COURT AS A FORUM IN WHICH TO AIR HIS GENERALIZED
GRIEVANCES ABOUT THE CONDUCT OF GOVERNMENT OR THE ALLOCATION OF POWER
IN THE FEDERAL SYSTEM."  ID., AT 106.  THE NARROWNESS OF THAT HOLDING
IS EMPHASIZED BY THE CONCURRING OPINION OF MR. JUSTICE STEWART, IN
FLAST: 

"IN CONCLUDING THAT THE APPELLANTS THEREFORE HAVE STANDING TO SUE,
WE DO NOT UNDERMINE THE SALUTARY PRINCIPLE, ESTABLISHED BY FROTHINGHAM
AND REAFFIRMED TODAY, THAT A TAXPAYER MAY NOT 'EMPLOY A FEDERAL COURT
AS A FORUM IN WHICH TO AIR HIS GENERALIZED GRIEVANCES ABOUT THE CONDUCT
OF GOVERNMENT OR THE ALLOCATION OF POWER IN THE FEDERAL SYSTEM.'" 
(CITATION OMITTED.)  ID., AT 114. 

        II 

ALTHOUGH THE COURT MADE IT VERY EXPLICIT IN FLAST THAT A
"FUNDAMENTAL ASPECT OF STANDING" IS THAT IT FOCUSES PRIMARILY ON THE
PARTY SEEKING TO GET HIS COMPLAINT BEFORE THE FEDERAL COURT RATHER THAN
"ON THE ISSUES HE WISHES TO HAVE ADJUDICATED,"  ID., AT 99, IT MADE
EQUALLY CLEAR THAT 

"IN RULING ON (TAXPAYER) STANDING, IT IS BOTH APPROPRIATE AND
NECESSARY TO LOOK TO THE SUBSTANTIVE ISSUES FOR ANOTHER PURPOSE,
NAMELY, TO DETERMINE WHETHER THERE IS A LOGICAL NEXUS BETWEEN THE
STATUS ASSERTED AND THE CLAIM SOUGHT TO BE ADJUDICATED."  ID., AT 102. 
/6/ WE THEREFORE TURN TO AN EXAMINATION OF THE ISSUES SOUGHT TO BE
RAISED BY RESPONDENT'S COMPLAINT TO DETERMINE WHETHER HE IS "A PROPER
AND APPROPRIATE PARTY TO INVOKE FEDERAL JUDICIAL POWER," IBID., WITH
RESPECT TO THOSE ISSUES. 

WE NEED NOT AND DO NOT REACH THE MERITS OF THE CONSTITUTIONAL ATTACK
ON THE STATUTE; OUR INQUIRY INTO THE "SUBSTANTIVE ISSUES" IS FOR THE
LIMITED PURPOSE INDICATED ABOVE.  THE MERE RECITAL OF THE RESPONDENT'S
CLAIMS AND AN EXAMINATION OF THE STATUTE UNDER ATTACK DEMONSTRATE HOW
FAR HE FALLS SHORT OF THE STANDING CRITERIA OF FLAST AND HOW NEATLY HE
FALLS WITHIN THE FROTHINGHAM HOLDING LEFT UNDISTRUBED.  ALTHOUGH THE
STATUS HE RESTS ON IS THAT HE IS A TAXPAYER, HIS CHALLENGE IS NOT
ADDRESSED TO THE TAXING OR SPENDING POWER, BUT TO THE STATUTES
REGULATING THE CIA, SPECIFICALLY 50 U.S.C. 403J (B).  THAT SECTION
PROVIDES DIFFERENT ACCOUNTING AND REPORTING REQUIREMENTS AND PROCEDURES
FOR THE CIA, AS IS ALSO DONE WITH RESPECT TO OTHER GOVERNMENTAL
AGENCIES DEALING IN CONFIDENTIAL AREAS.  /7/ 

RESPONDENT MAKES NO CLAIM THAT APPROPRIATED FUNDS ARE BEING SPENT IN
VIOLATION OF A "SPECIFIC CONSTITUTIONAL LIMITATION UPON THE . . .
TAXING AND SPENDING POWER . . . ."  392 U.S., AT 104.  RATHER, HE ASKS
THE COURTS TO COMPEL THE GOVERNMENT TO GIVE HIM INFORMATION ON
PRECISELY HOW THE CIA SPENDS ITS FUNDS.  THUS THERE IS NO "LOGICAL
NEXUS" BETWEEN THE ASSERTED STATUS OF TAXPAYER AND THE CLAIMED FAILURE
OF THE CONGRESS TO REQUIRE THE EXECUTIVE TO SUPPLY A MORE DETAILED
REPORT OF THE EXPENDITURES OF THAT AGENCY.  /8/ 

THE QUESTION PRESENTED THUS IS SIMPLY AND NARROWLY WHETHER THESE
CLAIMS MEET THE STANDARDS FOR TAXPAYER STANDING SET FORTH IN FLAST; WE
HOLD THEY DO NOT.  RESPONDENT IS SEEKING "TO EMPLOY A FEDERAL COURT AS
A FORUM IN WHICH TO AIR HIS GENERALIZED GRIEVANCES ABOUT THE CONDUCT OF
GOVERNMENT."  392 U.S., AT 106.  BOTH FROTHINGHAM AND FLAST, SUPRA,
REJECT THAT BASIS FOR STANDING. 

        III 

THE COURT OF APPEALS HELD THAT THE BASIS OF TAXPAYER STANDING 

"NEED NOT ALWAYS BE THE APPROPRIATION AND THE SPENDING OF
(TAXPAYER'S) MONEY FOR AN INVALID PURPOSE.  THE PERSONAL STAKE MAY COME
FROM AN INJURY IN FACT EVEN IF IT IS NOT DIRECTLY ECONOMIC IN NATURE. 
ASSOCIATION OF DATA PROCESSING ORGANIZATIONS, INC. V. CAMP, (397 U.S.
150,) 154 (1970)."  465 F.2D, AT 853.  /9/ 

THE RESPONDENT'S CLAIM IS THAT WITHOUT DETAILED INFORMATION ON CIA
EXPENDITURES--AND HENCE ITS ACTIVITIES--HE CANNOT INTELLIGENTLY FOLLOW
THE ACTIONS OF CONGRESS OR THE EXECUTIVE, NOR CAN HE PROPERLY FULFILL
HIS OBLIGATIONS AS A MEMBER OF THE ELECTORATE IN VOTING FOR CANDIDATES
SEEKING NATIONAL OFFICE.     THIS IS SURELY THE KIND OF A GENERALIZED
GRIEVANCE DESCRIBED IN BOTH FROTHINGHAM AND FLAST SINCE THE IMPACT ON
HIM IS PLAINLY UNDIFFERENTIATED AND "COMMON TO ALL MEMBERS OF THE
PUBLIC."  EX PARTE LEVITT, 302 U.S. 633, 634 (1937); LAIRD V. TATUM,
408 U.S. 1, 13 (1972).  WHILE WE CAN HARDLY DISPUTE THAT THIS
RESPONDENT HAS A GENUINE INTEREST IN THE USE OF FUNDS AND THAT HIS
INTEREST MAY BE PROMPTED BY HIS STATUS AS A TAXPAYER, HE HAS NOT
ALLEGED THAT, AS A TAXPAYER, HE IS IN DANGER OF SUFFERING ANY
PARTICULAR CONCRETE INJURY AS A RESULT OF THE OPERATION OF THIS
STATUTE.  AS THE COURT NOTED IN SIERRA CLUB V. MORTON, 405 U.S. 727
(1972), 

"A MERE 'INTEREST IN A PROBLEM,' NO MATTER HOW LONGSTANDING THE
INTEREST AND NO MATTER HOW QUALIFIED THE ORGANIZATION IS IN EVALUATING
THE PROBLEM, IS NOT SUFFICIENT BY ITSELF TO RENDER THE ORGANIZATION
'ADVERSELY AFFECTED' OR 'AGGRIEVED' WITHIN THE MEANING OF THE APA." 
ID., AT 739. 

EX PARTE LEVITT, SUPRA, IS ESPECIALLY INSTRUCTIVE.  THERE LEVITT
SOUGHT TO CHALLENGE THE VALIDITY OF THE COMMISSION OF A SUPREME COURT
JUSTICE WHO HAD BEEN NOMINATED AND CONFIRMED AS SUCH WHILE HE WAS A
MEMBER OF THE SENATE.  LEVITT ALLEGED THAT THE APPOINTEE HAD VOTED FOR
AN INCREASE IN THE EMOLUMENTS PROVIDED BY CONGRESS FOR JUSTICES OF THE
SUPREME COURT DURING THE TERM FOR WHICH HE WAS LAST ELECTED TO THE
UNITED STATES SENATE.  THE CLAIM WAS THAT THE APPOINTMENT VIOLATED THE
EXPLICIT PROHIBITION OF ART. I, 6, CL. 2, OF THE CONSTITUTION.  /10/
THE COURT DISPOSED OF LEVITT'S CLAIM, STATING: 

"IT IS AN ESTABLISHED PRINCIPLE THAT TO ENTITLE A PRIVATE INDIVIDUAL
TO INVOKE THE JUDICIAL POWER TO DETERMINE THE VALIDITY OF THE EXECUTIVE
OR LEGISLATIVE ACTION HE MUST SHOW THAT HE HAS SUSTAINED OR IS
IMMEDIATELY IN DANGER OF SUSTAINING A DIRECT INJURY AS THE RESULT OF
THAT ACTION AND IT IS NOT SUFFICIENT THAT HE HAS MERELY A GENERAL
INTEREST COMMON TO ALL MEMBERS OF THE PUBLIC."  302 U.S., AT 634. 
(EMPHASIS SUPPLIED.)  OF COURSE, IF LEVITT'S ALLEGATIONS WERE TRUE,
THEY MADE OUT AN ARGUABLE VIOLATION OF AN EXPLICIT PROHIBITION OF THE
CONSTITUTION.  YET EVEN THIS WAS HELD INSUFFICIENT TO SUPPORT STANDING
BECAUSE, WHATEVER LEVITT'S INJURY, IT WAS ONE HE SHARED WITH "ALL
MEMBERS OF THE PUBLIC."  RESPONDENT HERE, LIKE THE PETITIONER IN
LEVITT, ALSO FAILS TO CLEAR THE THRESHOLD HURDLE OF BAKER V. CARR, 369
U.S., AT 204.  SEE SUPRA, AT 171, AND FLAST, SUPRA.  /11/ 

IT CAN BE ARGUED THAT IF RESPONDENT IS NOT PERMITTED TO LITIGATE
THIS ISSUE, NO ONE CAN DO SO.  IN A VERY REAL SENSE, THE ABSENCE OF ANY
PARTICULAR INDIVIDUAL OR CLASS TO LITIGATE THESE CLAIMS GIVES SUPPORT
TO THE ARGUMENT THAT THE SUBJECT MATTER IS COMMITTED TO THE
SURVEILLANCE OF CONGRESS, AND ULTIMATELY TO THE POLITICAL PROCESS.  ANY
OTHER CONCLUSION WOULD MEAN THAT THE FOUNDING FATHERS INTENDED TO SET
UP SOMETHING IN THE NATURE OF AN ATHENIAN DEMOCRACY OR A NEW ENGLAND
TOWN MEETING TO OVERSEE THE CONDUCT OF THE NATIONAL GOVERNMENT BY MEANS
OF LAWSUITS IN FEDERAL COURTS.  THE CONSTITUTION CREATED A
REPRESENTATIVE GOVERNMENT WITH THE REPRESENTATIVES DIRECTLY RESPONSIBLE
TO THEIR CONSTITUENTS AT STATED PERIODS OF TWO, FOUR, AND SIX YEARS;
THAT THE CONSTITUTION DOES NOT AFFORD A JUDICIAL REMEDY DOES NOT, OF
COURSE, COMPLETELY DISABLE THE CITIZEN WHO IS NOT SATISFIED WITH THE
"GROUND RULES"  ESTABLISHED BY THE CONGRESS FOR REPORTING EXPENDITURES
OF THE EXECUTIVE BRANCH.  LACK OF STANDING WITHIN THE NARROW CONFINES
OF ART. III JURISDICTION DOES NOT IMPAIR THE RIGHT TO ASSERT HIS VIEWS
IN THE POLITICAL FORUM OR AT THE POLLS.  SLOW, CUMBERSOME, AND
UNRESPONSIVE THOUGH THE TRADITIONAL ELECTORAL PROCESS MAY BE THOUGHT AT
TIMES, OUR SYSTEM PROVIDES FOR CHANGING MEMBERS OF THE POLITICAL
BRANCHES WHEN DISSATISFIED CITIZENS CONVINCE A SUFFICIENT NUMBER OF
THEIR FELLOW ELECTORS THAT ELECTED REPRESENTATIVES ARE DELINQUENT IN
PERFORMING DUTIES COMMITTED TO THEM. 

AS OUR SOCIETY HAS BECOME MORE COMPLEX, OUR NUMBERS MORE VAST, OUR
LIVES MORE VARIED, AND OUR RESOURCES MORE STRAINED, CITIZENS
INCREASINGLY REQUEST THE INTERVENTION OF THE COURTS ON A GREATER
VARIETY OF ISSUES THAN AT ANY PERIOD OF OUR NATIONAL DEVELOPMENT.  THE
ACCEPTANCE OF NEW CATEGORIES OF JUDICIALLY COGNIZABLE INJURY HAS NOT
ELIMINATED THE BASIC PRINCIPLE THAT TO INVOKE JUDICIAL POWER THE
CLAIMANT MUST HAVE A "PERSONAL STAKE IN THE OUTCOME," BAKER V. CARR,
SUPRA, AT 204 OR A "PARTICULAR, CONCRETE INJURY," SIERRA CLUB, SUPRA,
AT 740 - 741, N. 16, OR "A DIRECT INJURY," EX PARTE LEVITT, SUPRA, AT
634; IN SHORT, SOMETHING MORE THAN "GENERALIZED GRIEVANCES," FLAST,
SUPRA, AT 106.  RESPONDENT HAS FAILED TO MEET THESE FUNDAMENTAL TESTS;
ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  RESPONDENT'S COMPLAINT ALLEGED THAT HE WAS "A MEMBER OF THE
ELECTORATE, AND A LOYAL CITIZEN OF THE UNITED STATES."  AT THE SAME
TIME, HE STATES THAT HE "DOES NOT CHALLENGE THE FORMULATION OF THE
ISSUE CONTAINED IN THE PETITION FOR CERTIORARI."  BRIEF FOR RESPONDENT
IN OPPOSITION TO PET. FOR CERT. 1.  THE QUESTION PRESENTED THERE WAS:
"WHETHER A FEDERAL TAXPAYER HAS STANDING TO CHALLENGE THE PROVISIONS OF
THE CENTRAL INTELLIGENCE ACT WHICH PROVIDE THAT APPROPRIATIONS TO AND
EXPENDITURES BY THAT AGENCY SHALL NOT BE MADE PUBLIC, ON THE GROUND
THAT SUCH SECRECY CONTRAVENES ARTICLE I, SECTION 9, CLAUSE 7 OF THE
CONSTITUTION."  PET. FOR CERT. 2. 

/2/  APP. 15 - 16.  RESPONDENT'S COMPLAINT ALSO ASKED FOR A THREE
JUDGE DISTRICT COURT AND THIS APPLICATION WAS DENIED BY A SINGLE
DISTRICT JUDGE WITH DIRECTIONS TO PLACE THE CASE ON THE CALENDAR IN THE
USUAL MANNER.  THE COURT OF APPEALS, IN THE JUDGMENT UNDER REVIEW,
ORDERED THAT, ON REMAND, THE CASE BE CONSIDERED BY A THREE-JUDGE
COURT.  THE DISTRICT COURT HAS GRANTED A STAY OF RESPONDENT'S MOTION TO
CONVENE A THREE-JUDGE COURT, PENDING DISPOSITION OF THIS PETITION FOR
WRIT OF CERTIORARI.  ON SEPTEMBER 26, 1972, THE THIRD CIRCUIT DENIED A
PETITION FOR MANDAMUS, FILED BY RESPONDENT, TO COMPEL THE IMMEDIATE
CONVENING OF A THREE-JUDGE COURT. 

/3/  THE MAJORITY FOUND THAT THE RESPONDENT HAD STANDING TO BRING
THIS SUIT AS A TAXPAYER.  ONE JUDGE HELD THAT HE HAD STANDING AS A
CITIZEN.  THIS CASE WAS ORIGINALLY ARGUED BEFORE A PANEL CONSISTING OF
TWO CIRCUIT JUDGES AND ONE DISTRICT JUDGE SITTING BY DESIGNATION. 
AFTER A SECOND ROUND OF BRIEFS, THE COURT OF APPEALS DETERMINED SUA
SPONTE TO HEAR THE CASE EN BANC WITHOUT FURTHER ARGUMENT.  THE DISTRICT
JUDGE SAT WITH THE COURT OF APPEALS EN BANC.  THIS POINT WAS NOT RAISED
IN THE QUESTION PRESENTED IN THE PETITION FOR CERTIORARI BUT THE
SOLICITOR GENERAL, IN A FOOTNOTE, CALLED ATTENTION TO THE DISTRICT
JUDGE'S PARTICIPATION.  HE EXPRESSED THE VIEW THAT, ALTHOUGH 28 U.S.C.
46 (C) LIMITS EN BANC HEARINGS TO CIRCUIT JUDGES IN ACTIVE SERVICE (AND
ANY RETIRED CIRCUIT JUDGE WHO PARTICIPATED IN THE INITIAL HEARING), THE
ERROR WAS HARMLESS.  BRIEF FOR UNITED STATES 5 - 6, N. 4.  IN THESE
CIRCUMSTANCES WE NEED NOT REACH THE QUESTION. 

/4/  397 U.S.,AT 151.  SEE ALSO K. DAVIS, ADMINISTRATIVE LAW
TREATISE 22.09 - 6, P. 753 (SUPP. 1970). 

/5/  IN FROTHINGHAM, THE PLAINTIFF SOUGHT TO ENJOIN ENFORCEMENT OF
THE FEDERAL MATERNITY ACT OF 1921, 42 STAT. 224, WHICH PROVIDED FOR
FINANCIAL GRANTS TO STATES WITH PROGRAMS FOR REDUCING MATERNAL AND
INFANT MORTALITY.  SHE ALLEGED VIOLATION OF THE FIFTH AMENDMENT'S DUE
PROCESS CLAUSE ON THE GROUND THAT THE LEGISLATION ENCROACHED ON AN AREA
RESERVED TO THE STATES. 

/6/  IN SOME CASES, THE OPERATIVE EFFECT OF THIS "LOOK AT THE
SUBSTANTIVE ISSUES" COULD LEAD TO THE CONCLUSION THAT THE "SUBSTANTIVE
ISSUES" WERE NONJUSTICIABLE AND IN CONSEQUENCE NO ONE WOULD HAVE
STANDING.  SEE GILLIGAN V. MORGAN.  413 U.S. 1, 9 (1973); FLAST V.
COHEN, 392 U.S. 83, 95 (1968); V. POE ULLMAN, 367 U.S. 497, 508 - 509
(1961). 

/7/  SEE 28 U.S.C. 537 (FEDERAL BUREAU OF INVESTIGATION); 31 U.S.C.
107 (FOREIGN AFFAIRS); 42 U.S.C. 2017 (B) (ATOMIC ENERGY COMMISSION). 

/8/  CONGRESS HAS TAKEN NOTICE OF THE NEED OF THE PUBLIC FOR MORE
INFORMATION CONCERNING GOVERNMENTAL OPERATIONS, BUT AT THE SAME TIME IT
HAS CONTINUED TRADITIONAL RESTRAINTS ON DISCLOSURE OF CONFIDENTIAL
INFORMATION.  SEE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552;
ENVIRONMENTAL PROTECTION AGENCY V. MINK, 410 U.S. 73 (1973). 

/9/  THE COURT OF APPEALS THUS APPEARED TO RELY ON ASSOCIATION OF
DATA PROCESSING SERVICE ORGANIZATIONS, INC. V. CAMP, 397 U.S. 150
(1970).  ABSTRACTING SOME GENERAL LANGUAGE OF THAT OPINION FROM THE
SETTING AND CONTROLLING FACTS OF THAT CASE, THE COURT OF APPEALS
OVERLOOKED THE CRUCIAL FACTOR THAT STANDING IN THAT CASE AROSE UNDER A
SPECIFIC STATUTE, BANK SERVICE CORPORATION ACT OF 1962, 76 STAT. 1132,
12 U.S.C. 1861.  THE PETITIONERS IN DATA PROCESSING ALLEGED COMPETITIVE
ECONOMIC INJURY TO PRIVATE BUSINESS ENTERPRISE DUE TO A RULING BY THE
COMPTROLLER OF THE CURRENCY PERMITTING NATIONAL BANKS TO SELL THEIR
DATA PROCESSING SERVICES TO OTHER BANKS AND TO BANK CUSTOMERS WHOSE
PATRONAGE THE DATA PROCESSING COMPANIES SOUGHT.  WE RECOGNIZED STANDING
FOR THOSE PRIVATE BUSINESS PROPRIETORS WHO WERE ENGAGED IN SELLING THE
SAME KIND OF SERVICES THE COMPTROLLER ALLOWED BANKS TO SELL; WE HELD
ONLY THAT THE CLAIMS OF IMPERMISSIBLE COMPETITION WERE "ARGUABLY . . .
WITHIN THE ZONE OF INTERESTS PROTECTED" BY 4 OF THE BANK SERVICE
CORPORATION ACT.  397 U.S., AT 156.  IN SHORT, CONGRESS HAD PROVIDED
COMPETITOR STANDING.  THE COURT SAW INDICATION THAT CONGRESS HAD SOUGHT
TO PRECLUDE JUDICIAL REVIEW OF ADMINISTRATIVE RULINGS OF THE
COMPTROLLER OF THE CURRENCY AS TO THE LIMITATIONS CONGRESS PLACED ON
NATIONAL BANKS. 

/10/  "NO SENATOR OR REPRESENTATIVE SHALL, DURING THE TIME FOR WHICH
HE WAS ELECTED, BE APPOINTED TO ANY CIVIL OFFICE UNDER THE AUTHORITY OF
THE UNITED STATES, WHICH SHALL HAVE BEEN CREATED, OR THE EMOLUMENTS
WHEREOF SHALL HAVE BEEN INCREASED DURING SUCH TIME . . . ." 

/11/  ALTHOUGH WE NEED NOT REACH OR DECIDE PRECISELY WHAT IS MEANT
BY "A REGULAR STATEMENT AND ACCOUNT," IT IS CLEAR THAT CONGRESS HAS
PLENARY POWER TO EXACT ANY REPORTING AND ACCOUNTING IT CONSIDERS
APPROPRIATE IN THE PUBLIC INTEREST.  IT IS THEREFORE OPEN TO SERIOUS
QUESTION WHETHER THE FRAMERS OF THE CONSTITUTION EVER IMAGINED THAT
GENERAL DIRECTIVES TO THE CONGRESS OR THE EXECUTIVE WOULD BE SUBJECT TO
ENFORCEMENT BY AN INDIVIDUAL CITIZEN.  WHILE THE AVAILABLE EVIDENCE IS
NEITHER QUALITATIVELY NOR QUANTITATIVELY CONCLUSIVE, HISTORICAL
ANALYSIS OF THE GENESIS OF CL. 7 SUGGESTS THAT IT WAS INTENDED TO
PERMIT SOME DEGREE OF SECRECY OF GOVERNMENTAL OPERATIONS.  THE ULTIMATE
WEAPON OF ENFORCEMENT AVAILABLE TO THE CONGRESS WOULD, OF COURSE, BE
THE "POWER OF THE PURSE."  INDEPENDENT OF THE STATUTE HERE CHALLENGED
BY RESPONDENT, CONGRESS COULD GRANT STANDING TO TAXPAYERS OR CITIZENS,
OR BOTH, LIMITED, OF COURSE, BY THE "CASES" AND "CONTROVERSIES"
PROVISIONS OF ART. III. 

NOT CONTROLLING, BUT SURELY NOT UNIMPORTANT, ARE NEARLY TWO
CENTURIES OF ACCEPTANCE OF A READING OF CL. 7 AS VESTING IN CONGRESS
PLENARY POWER TO SPELL OUT THE DETAILS OF PRECISELY WHEN AND WITH WHAT
SPECIFICITY EXECUTIVE AGENCIES MUST REPORT THE EXPENDITURE OF
APPROPRIATED FUNDS AND TO EXEMPT CERTAIN SECRET ACTIVITIES FROM
COMPREHENSIVE PUBLIC REPORTING.  SEE 2 M. FARRAND, THE RECORDS OF THE
FEDERAL CONVENTION OF 1787, PP. 618 - 619 (1911); 3 ID., AT 326 - 327;
3 J. ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION 462 (1836); D. MILLER,
SECRET STATUTES OF THE UNITED STATES 10 (1918). 

(FOR DISSENTING OPINION OF MR. JUSTICE BRENNAN, SEE POST, P. 235.) 

MR. JUSTICE POWELL, CONCURRING. 

I JOINED THE OPINION OF THE COURT BECAUSE I AM IN ACCORD WITH MOST
OF ITS ANALYSIS, PARTICULARLY INSOFAR AS IT RELIES ON TRANDITIONAL
BARRIERS AGAINST FEDERAL TAXPAYER OR CITIZEN STANDING.  AND I AGREE
THAT FLAST V. COHEN, 392 U.S. 83 (1968), WHICH SET THE BOUNDARIES FOR
THE ARGUMENTS OF THE PARTIES BEFORE US, IS THE MOST DIRECTLY RELEVANT
PRECEDENT AND QUITE CORRECTLY ABSORBS A MAJOR PORTION OF THE COURT'S
ATTENTION.  I WRITE SOLELY TO INDICATE THAT I WOULD GO FURTHER THAN THE
COURT AND WOULD LAY TO REST THE APPROACH UNDERTAKEN IN FLAST.  I WOULD
NOT OVERRULE FLAST ON ITS FACTS, BECAUSE IT IS NOW SETTLED THAT FEDERAL
TAXPAYER STANDING EXISTS IN ESTABLISHMENT CLAUSE CASES.  I WOULD NOT,
HOWEVER, PERPETUATE THE DOCTRINAL CONFUSION INHERENT IN THE FLAST TWO
PART "NEXUS" TEST.  THAT TEST IS NOT A RELIABLE INDICATOR OF WHEN A
FEDERAL TAXPAYER HAS STANDING, AND IT HAS NO SOUND RELATIONSHIP TO THE
QUESTION WHETHER SUCH A PLAINTIFF, WITH NO OTHER INTEREST AT STAKE,
SHOULD BE ALLOWED TO BRING SUIT AGAINST ONE OF THE BRANCHES OF THE
FEDERAL GOVERNMENT.  IN MY OPINION, IT SHOULD BE ABANDONED. 

        I 

MY DIFFICULTIES WITH FLAST ARE SEVERAL.  THE OPINION PURPORTS TO
SEPARATE THE QUESTION OF STANDING FROM THE MERITS, ID., AT 99 - 101,
YET IT ABRUPTLY RETURNS TO THE SUBSTANTIVE ISSUES RAISED BY A PLAINTIFF
FOR THE PURPOSE OF DETERMINING "WHETHER THERE IS A LOGICAL NEXUS
BETWEEN THE STATUS ASSERTED AND THE CLAIM SOUGHT TO BE ADJUDICATED." 
ID., AT 102.  SIMILARLY, THE OPINION DISTINGUISHES BETWEEN
CONSTITUTIONAL AND PRUDENTIAL LIMITS ON STANDING.  ID., AT 92 - 94,
97.  I FIND IT IMPOSSIBLE, HOWEVER, TO DETERMINE WHETHER THE TWO-PART
"NEXUS" TEST CREATED IN FLAST AMOUNTS TO A CONSTITUTIONAL OR A
PRUDENTIAL LIMITATION, BECAUSE IT HAS NO MEANINGFUL CONNECTION WITH THE
COURT'S STATEMENT OF THE BARE-MINIMUM CONSTITUTIONAL REQUIREMENTS FOR
STANDING.     DRAWING UPON BAKER V. CARR, 369 U.S. 186, 204 (1962), THE
COURT IN FLAST STATED THE "'GIST OF THE QUESTION OF STANDING'" AS
"WHETHER THE PARTY SEEKING RELIEF HAS 'ALLEGED SUCH A PERSONAL STAKE IN
THE OUTCOME OF THE CONTROVERSY AS TO ASSURE THAT CONCRETE ADVERSENESS
WHICH SHARPENS THE PRESENTATION OF ISSUES UPON WHICH THE COURT SO
LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULT CONSTITUTIONAL
QUESTIONS.'"  392 U.S.,AT 99.  AS THE COURT TODAY NOTES, ANTE, AT 173,
THIS IS NOW THE CONTROLLING DEFINITION OF THE IRREDUCIBLE ART. III CASE
OR-CONTROVERSY REQUIREMENTS FOR STANDING.  /1/  BUT, AS MR. JUSTICE
HARLAN POINTED OUT IN HIS DISSENT IN FLAST, 392 U.S.,AT 116 ET SEQ., IT
IS IMPOSSIBLE TO SEE HOW AN INQUIRY ABOUT THE EXISTENCE OF "CONCRETE
ADVERSENESS" IS FURTHERED BY AN APPLICATION OF THE FLAST TEST. 

FLAST ANNOUNCED THE FOLLOWING TWO-PART "NEXUS" TEST: 

     "THE NEXUS DEMANDED OF FEDERAL TAXPAYERS HAS TWO ASPECTS TO
IT.

   FIRST, THE TAXPAYER MUST ESTABLISH A LOGICAL LINK BETWEEN THAT

  STATUS AND THE TYPE OF LEGISLATIVE ENACTMENT ATTACKED.  THUS, A

  TAXPAYER WILL BE A PROPER PARTY TO ALLEGE THE UNCONSTITUTIONALITY

  ONLY OF EXERCISES OF CONGRESSIONAL POWER UNDER THE TAXING AND

  SPENDING CLAUSE OF ART. I, 8, OF THE CONSTITUTION.  IT WILL NOT
BE

  SUFFICIENT TO ALLEGE AN INCIDENTAL EXPENDITURE OF TAX FUNDS IN

  THE ADMINISTRATION OF AN ESSENTIALLY REGULATORY STATUTE . . . .

SECONDLY, THE TAXPAYER MUST ESTABLISH A NEXUS BETWEEN THAT STATUS

  AND THE PRECISE NATURE OF THE CONSTITUTIONAL INFRINGEMENT

  ALLEGED.  UNDER THIS REQUIREMENT, THE TAXPAYER MUST SHOW THAT THE

  CHALLENGED ENACTMENT EXCEEDS SPECIFIC CONSTITUTIONAL LIMITATIONS

  IMPOSED UPON THE EXERCISE OF THE CONGRESSIONAL TAXING AND

  SPENDING POWER AND NOT SIMPLY THAT THE ENACTMENT IS GENERALLY

  BEYOND THE POWERS DELEGATED TO CONGRESS BY ART. I, 8.  WHEN BOTH

  NEXUSES ARE ESTABLISHED, THE LITIGANT WILL HAVE SHOWN A

  TAXPAYER'S STAKE IN THE OUTCOME OF THE CONTROVERSY AND WILL BE A

  PROPER AND APPROPRIATE PARTY TO INVOKE A FEDERAL COURT'S

  JURISDICTION."  ID., AT 102 - 103. 

RELYING ON HISTORY, THE COURT IDENTIFIED THE ESTABLISHMENT CLAUSE AS
A SPECIFIC CONSTITUTIONAL LIMITATION UPON THE EXERCISE BY CONGRESS OF
THE TAXING AND SPENDING POWER CONFERRED BY ART. I, 8.  ID., AT 103 -
105.  ON THE OTHER HAND, THE TENTH AMENDMENT, AND APPARENTLY THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT, WERE DETERMINED NOT TO BE SUCH
"SPECIFIC"  LIMITATIONS.  THE BASES FOR THESE DETERMINATIONS ARE NOT
WHOLLY CLEAR, BUT IT APPEARS THAT THE COURT FOUND THE TENTH AMENDMENT
ADDRESSED TO THE INTERESTS OF THE STATES, RATHER THAN OF TAXPAYERS, AND
THE DUE PROCESS CLAUSE NO PROTECTION AGAINST INCREASES IN TAX
LIABILITY.  ID., AT 105. 

IN MY OPINION, MR. JUSTICE HARLAN'S CRITIQUE OF THE FLAST "NEXUS"
TEST IS UNANSWERABLE.  AS HE POINTED OUT, "THE COURT'S STANDARD FOR THE
DETERMINATION OF STANDING (I. E., SUFFICIENTLY CONCRETE ADVERSENESS)
AND ITS CRITERIA FOR THE SATISFACTION OF THAT STANDARD ARE ENTIRELY
UNRELATED."  ID., AT 122.  ASSUMING THAT THE RELEVANT CONSTITUTIONAL
INQUIRY IS THE INTENSITY OF THE PLAINTIFF'S CONCERN, AS THE COURT
INITIALLY POSITED, ID., AT 99, THE FLAST CRITERIA "ARE NOT IN ANY SENSE
A MEASUREMENT OF ANY PLAINTIFF'S INTEREST IN THE OUTCOME OF ANY SUIT." 
ID., AT 121 (HARLAN, J., DISSENTING).  A PLAINTIFF'S INCENTIVE TO
CHALLENGE AN EXPENDITURE DOES NOT TURN ON THE "UNCONNECTED FACT" THAT
IT RELATES TO A REGULATORY RATHER THAN A SPENDING PROGRAM, ID., AT 122,
OR ON WHETHER THE CONSTITUTIONAL PROVISION ON WHICH HE RELIES IN A
"SPECIFIC LIMITATION" UPON CONGRESS' SPENDING POWERS.  ID., AT 123. 
/2/ 

THE AMBIGUITIES INHERENT IN THE FLAST "NEXUS" LIMITATIONS ON FEDERAL
TAXPAYER STANDING ARE ILLUSTRATED BY THIS CASE.  THERE CAN BE LITTLE
DOUBT ABOUT RESPONDENT'S FERVOR IN PURSUING HIS CASE, BOTH WITHIN
ADMINISTRATIVE CHANNELS AND AT EVERY LEVEL OF THE FEDERAL COURTS.  THE
INTENSITY OF HIS INTEREST APPEARS TO BEAR NO RELATIONSHIP TO THE FACT
THAT, LITERALLY SPEAKING, HE IS NOT CHALLENGING DIRECTLY A
CONGRESSIONAL EXERCISE OF THE TAXING AND SPENDING POWER.  ON THE OTHER
HAND, IF THE INVOLVEMENT OF THE TAXING AND SPENDING POWER HAS SOME
RELEVANCE, IT REQUIRES NO GREAT LEAP IN REASONING TO CONCLUDE THAT THE
STATEMENT AND ACCOUNT CLAUSE, ART. I, 9, CL. 7, ON WHICH RESPONDENT
RELIES, IS INEXTRICABLY LINKED TO THAT POWER.  AND THAT CLAUSE MIGHT
WELL BE SEEN AS A "SPECIFIC" LIMITATION ON CONGRESSIONAL SPENDING. 
INDEED, IT COULD BE VIEWED AS THE MOST DEMOCRATIC OF LIMITATIONS. 
THUS, ALTHOUGH THE COURT'S APPLICATION OF FLAST TO THE INSTANT CASE IS
PROBABLY LITERALLY CORRECT, ADHERENCE TO THE FLAST TEST IN THIS
INSTANCE SUGGESTS, AS DOES FLAST ITSELF, THAT THE TEST IS NOT A SOUND
OR LOGICAL LIMITATION ON STANDING. 

THE LACK OF REAL MEANING AND OF PRINCIPLED CONTENT IN THE FLAST
"NEXUS" TEST RENDERS IT LIKELY THAT IT WILL IN TIME COLLAPSE OF ITS OWN
WEIGHT, AS MR. JUSTICE DOUGLAS PREDICTED IN HIS CONCURRING OPINION IN
THAT CASE.  392 U. S., AT 107.  THIS WILL PRESENT SEVERAL OPTIONS FOR
THE COURT.  IT MAY EITHER REAFFIRM PRE-FLAST PRUDENTIAL LIMITATIONS ON
FEDERAL AND CITIZEN TAXPAYER STANDING; ATTEMPT NEW DOCTRINAL DEPARTURES
IN THIS AREA, AS WOULD MR. JUSTICE STEWART, POST, AT 203 - 204; OR
SIMPLY DROP STANDING BARRIERS ALTOGETHER, AS, JUDGING BY HIS CONCURRING
OPINION IN FLAST, SUPRA, AND HIS DISSENTING OPINION TODAY, WOULD MR.
JUSTICE DOUGLAS.  /3/  I BELIEVE THE FIRST OPTION TO BE THE APPROPRIATE
COURSE, FOR REASONS WHICH MAY BE EMPHASIZED BY NOTING THE DIFFICULTIES
I SEE WITH THE OTHER TWO.  AND, WHILE I DO NOT DISAGREE AT THIS LATE
DATE WITH THE BAKER V. CARR STATEMENT OF THE CONSTITUTIONAL INDICIA OF
STANDING, I FURTHER BELIEVE THAT CONSTITUTIONAL LIMITATIONS ARE NOT THE
ONLY PERTINENT CONSIDERATIONS. 

        II 

MR. JUSTICE STEWART, JOINED BY MR. JUSTICE MARSHALL, WOULD GRANT
CITIZEN OR TAXPAYER STANDING UNDER THOSE CLAUSES OF THE CONSTITUTION
THAT IMPOSE ON THE FEDERAL GOVERNMENT "AN AFFIRMATIVE DUTY" TO DO
SOMETHING ON BEHALF OF ITS CITIZENS AND TAXPAYERS.  POST, AT 203 -
204.  ALTHOUGH HE DISTINGUISHES BETWEEN AN AFFIRMATIVE CONSTITUTIONAL
DUTY AND A "CONSTITUTIONAL PROHIBITION" FOR PURPOSES OF THIS CASE,
POST, AT 202, IT DOES NOT FOLLOW THAT MR. JUSTICE STEWART WOULD DENY
FEDERAL TAXPAYER STANDING IN ALL CASES INVOLVING A CONSTITUTIONAL
PROHIBITION, AS HIS CONCURRING OPINION IN FLAST MAKES CLEAR.  /4/
RATHER, HE WOULD FIND FEDERAL TAXPAYER STANDING, AND PERHAPS CITIZEN
STANDING, IN ALL CASES BASED ON CONSTITUTIONAL CLAUSES SETTING FORTH AN
AFFIRMATIVE DUTY AND IN UNSPECIFIED CASES WHERE THE CONSTITUTIONAL
CLAUSE AT ISSUE MAY BE SEEN AS A PLAIN OR EXPLICIT PROHIBITION. 

FOR PURPOSES OF DETERMINING WHETHER A TAXPAYER OR CITIZEN HAS
STANDING TO CHALLENGE THE ACTIONS OF THE FEDERAL GOVERNMENT, I FAIL TO
PERCEIVE A MEANINGFUL DISTINCTION BETWEEN CONSTITUTIONAL CLAUSES THAT
SET FORTH DUTIES AND THOSE THAT SET FORTH PROHIBITIONS.  /5/  IN EITHER
INSTANCE, THE RELEVANT INQUIRY IS THE SAME--MAY A PLAINTIFF, RELYING ON
NOTHING OTHER THAN CITIZEN OR TAXPAYER STATUS, BRING SUIT TO ADJUDICATE
WHETHER AN ENTITY OF THE FEDERAL GOVERNMENT IS CARRYING OUT ITS
RESPONSIBILITIES IN CONFORMANCE WITH THE REQUIREMENTS OF THE
CONSTITITUTION?  A TAXPAYER'S OR CITIZEN'S INTEREST IN AND WILLINGNESS
TO PURSUE WITH VIGOR SUCH A SUIT WOULD NOT TURN ON WHETHER THE
CONSTITUTIONAL CLAUSE AT ISSUE IMPOSED A DUTY ON THE GOVERNMENT TO DO
SOMETHING FOR HIM OR PROHIBITED THE GOVERNMENT FROM DOING SOMETHING TO
HIM.  PROHIBITIONS AND DUTIES IN THIS CONTEXT ARE OPPOSITE SIDES OF THE
SAME COIN.  THUS, I DO NOT BELIEVE THAT THE INQUIRY WHETHER FEDERAL
COURTS SHOULD ENTERTAIN PUBLIC ACTIONS IS ADVANCED BY LINE DRAWING
BETWEEN AFFIRMATIVE DUTIES AND PROHIBITIONS.  /6/ 

IN SHORT, IN MY OPINION MY BROTHER STEWART'S VIEW FAILS TO PROVIDE A
MEANINGFUL STOPPING POINT BETWEEN AN ALL-OR-NOTHING POSITION WITH
REGARD TO FEDERAL TAXPAYER OR CITIZEN STANDING.  IN THIS RESPECT, IT
SHARES CERTAIN OF THE DEFICIENCIES OF FLAST.  I SUSPECT THAT THIS MAY
ALSO BE TRUE OF ANY INTERMEDIATE POSITION IN THIS AREA.  MR. JUSTICE
DOUGLAS CORRECTLY DISCERNS, I THINK, THAT THE ALTERNATIVES HERE AS A
MATTER OF DOCTRINE ARE ESSENTIALLY BIPOLAR.  HIS PREFERENCE IS CLEAR:
"I WOULD BE AS LIBERAL IN ALLOWING TAXPAYERS STANDING TO OBJECT TO . .
. VIOLATIONS OF THE FIRST AMENDMENT AS I WOULD IN GRANTING STANDING TO
PEOPLE TO COMPLAIN OF ANY INVASION OF THEIR RIGHTS UNDER THE FOURTH
AMENDMENT OR THE FOURTEENTH OR UNDER ANY OTHER GUARANTEE IN THE
CONSTITUTION ITSELF OR IN THE BILL OF RIGHTS."  FLAST V. COHEN, 392
U.S.,AT 114 (CONCURRING OPINION).  MY VIEW IS TO THE CONTRARY. 

      III 

RELAXATION OF STANDING REQUIREMENTS IS DIRECTLY RELATED TO THE
EXPANSION OF JUDICIAL POWER.  /7/  IT SEEMS TO ME INESCAPABLE THAT
ALLOWING UNRESTRICTED TAXPAYER OR CITIZEN STANDING WOULD SIGNIFICANTLY
ALTER THE ALLOCATION OF POWER AT THE NATIONAL LEVEL, WITH A SHIFT AWAY
FROM A DEMOCRATIC FORM OF GOVERNMENT.  I ALSO BELIEVE THAT REPEATED AND
ESSENTIALLY HEAD-ON CONFRONTATIONS BETWEEN THE LIFE-TENURED BRANCH AND
THE REPRESENTATIVE BRANCHES OF GOVERNMENT WILL NOT, IN THE LONG RUN, BE
BENEFICIAL TO EITHER.  THE PUBLIC CONFIDENCE ESSENTIAL TO THE FORMER
AND THE VITALITY CRITICAL TO THE LATTER MAY WELL ERODE IF WE DO NOT
EXERCISE SELF-RESTRAINT IN THE UTILIZATION OF OUR POWER TO NEGATIVE THE
ACTIONS OF THE OTHER BRANCHES.  WE SHOULD BE EVER MINDFUL OF THE
CONTRADICTIONS THAT WOULD ARISE IF A DEMOCRACY WERE TO PERMIT GENERAL
OVERSIGHT OF THE ELECTED BRANCHES OF GOVERNMENT BY A NONREPRESENTATIVE,
AND IN LARGE MEASURE INSULATED, JUDICIAL BRANCH.  /8/  MOREOVER, THE
ARGUMENT THAT THE COURT SHOULD ALLOW UNRESTRICTED TAXPAYER OR CITIZEN
STANDING UNDERESTIMATES THE ABILITY OF THE REPRESENTATIVE BRANCHES OF
THE FEDERAL GOVERNMENT TO RESPOND TO THE CITIZEN PRESSURE THAT HAS BEEN
RESPONSIBLE IN LARGE MEASURE FOR THE CURRENT DRIFT TOWARD EXPANDED
STANDING.  INDEED, TAXPAYER OR CITIZEN ADVOCACY, GIVEN ITS POTENTIALLY
BROAD BASE, IS PRECISELY THE TYPE OF LEVERAGE THAT IN A DEMOCRACY OUGHT
TO BE EMPLOYED AGAINST THE BRANCHES THAT WERE INTENDED TO BE RESPONSIVE
TO PUBLIC ATTITUDES ABOUT THE APPROPRIATE OPERATION OF GOVERNMENT.  "WE
MUST AS JUDGES RECALL THAT, AS MR. JUSTICE HOLMES WISELY OBSERVED, THE
OTHER BRANCHES OF THE GOVERNMENT 'ARE ULTIMATE GUARDIANS OF THE
LIBERTIES AND WELFARE OF THE PEOPLE IN QUITE AS GREAT A DEGREE AS THE
COURTS.'  MISSOURI, KANSAS & TEXAS R. CO. V. MAY, 194 U.S. 267, 270." 
FLAST V. COHEN, 392 U. S.,AT 131 (HARLAN, J., DISSENTING). 

UNRESTRAINED STANDING IN FEDERAL TAXPAYER OR CITIZEN SUITS WOULD
CREATE A REMARKABLY ILLOGICAL SYSTEM OF JUDICIAL SUPERVISION OF THE
COORDINATE BRANCHES OF THE FEDERAL GOVERNMENT.  RANDOLPH'S PROPOSED
COUNCIL OF REVISION, WHICH WAS REPEATEDLY REJECTED BY THE FRAMERS, AT
LEAST HAD THE VIRTUE OF BEING SYSTEMATIC; EVERY LAW PASSED BY THE
LEGISLATURE AUTOMATICALLY WOULD HAVE BEEN PREVIEWED BY THE JUDICIARY
BEFORE THE LAW COULD TAKE EFFECT.  /9/  ON THE OTHER HAND, SINCE THE
JUDICIARY CANNOT SELECT THE TAXPAYERS OR CITIZENS WHO BRING SUIT OR THE
NATURE OF THE SUITS, THE ALLOWANCE OF PUBLIC ACTIONS WOULD PRODUCE
UNEVEN AND SPORADIC REVIEW, THE QUALITY OF WHICH WOULD BE INFLUENCED BY
THE RESOURCES AND SKILL OF THE PARTICULAR PLAINTIFF.  AND ISSUES WOULD
BE PRESENTED IN ABSTRACT FORM, CONTRARY TO THE COURT'S RECOGNITION THAT
"JUDICIAL REVIEW IS EFFECTIVE LARGELY BECAUSE IT IS NOT AVAILABLE
SIMPLY AT THE BEHEST OF A PARTISAN FACTION, BUT IS EXERCISED ONLY TO
REMEDY A PARTICULAR, CONCRETE INJURY."  SIERRA CLUB V. MORTON, 405 U.S.
727, 740 - 741, N. 16 (1972).  /10/ 

THE POWER RECOGNIZED IN MARBURY V. MADISON, 1 CRANCH 137 (1803), IS
A POTENT ONE.  ITS PRUDENT USE SEEMS TO ME INCOMPATIBLE WITH UNLIMITED
NOTIONS OF TAXPAYER AND CITIZEN STANDING.  WERE WE TO UTILIZE THIS
POWER AS INDISCRIMINATELY AS IS NOW BEING URGED, WE MAY WITNESS EFFORTS
BY THE REPRESENTATIVE BRANCHES DRASTICALLY TO CURB ITS USE.  DUE TO
WHAT MANY HAVE REGARDED AS THE UNRESPONSIVENESS OF THE FEDERAL
GOVERNMENT TO RECOGNIZED NEEDS OR SERIOUS INEQUITIES IN OUR SOCIETY,
RECOURSE TO THE FEDERAL COURTS HAS ATTAINED AN UNPRECEDENTED POPULARITY
IN RECENT DECADES.  THOSE COURTS HAVE OFTEN ACTED AS A MAJOR INSTRUMENT
OF SOCIAL REFORM.  BUT THIS HAS NOT ALWAYS BEEN THE CASE, AS
EXPERIENCES UNDER THE NEW DEAL ILLUSTRATE.  THE PUBLIC REACTION TO THE
SUBSTANTIVE DUE PROCESS HOLDINGS OF THE FEDERAL COURTS DURING THAT
PERIOD REQUIRES NO ELABORATION, AND IT IS NOT UNUSUAL FOR HISTORY TO
REPEAT ITSELF. 

QUITE APART FROM THIS POSSIBILITY, WE RISK A PROGRESSIVE IMPAIRMENT
OF THE EFFECTIVENESS OF THE FEDERAL COURTS IF THEIR LIMITED RESOURCES
ARE DIVERTED INCREASINGLY FROM THEIR HISTORIC ROLE TO THE RESOLUTION OF
PUBLIC-INTEREST SUITS BROUGHT BY LITIGANTS WHO CANNOT DISTINGUISH
THEMSELVES FROM ALL TAXPAYERS OR ALL CITIZENS.  THE IRREPLACEABLE VALUE
OF THE POWER ARTICULATED BY CHIEF JUSTICE MARSHALL LIES IN THE
PROTECTION IT HAS AFFORDED THE CONSTITUTIONAL RIGHTS AND LIBERTIES OF
INDIVIDUAL CITIZENS AND MINORITY GROUPS AGAINST OPPRESSIVE OR
DISCRIMINATORY GOVERNMENT ACTION.  IT IS THIS ROLE, NOT SOME AMORPHOUS
GENERAL SUPERVISION OF THE OPERATIONS OF GOVERNMENT, THAT HAS
MAINTAINED PUBLIC ESTEEM FOR THE FEDERAL COURTS AND HAS PERMITTED THE
PEACEFUL COEXISTENCE OF THE COUNTERMAJORITARIAN IMPLICATIONS OF
JUDICIAL REVIEW AND THE DEMOCRATIC PRINCIPLES UPON WHICH OUR FEDERAL
GOVERNMENT IN THE FINAL ANALYSIS RESTS. 

THE CONSIDERATIONS OUTLINED ABOVE UNDERLIE, I BELIEVE, THE
TRADITIONAL HOSTILITY OF THE COURT TO FEDERAL TAXPAYER OR CITIZEN
STANDING WHERE THE PLAINTIFF HAS NOTHING AT STAKE OTHER THAN HIS
INTEREST AS A TAXPAYER OR CITIZEN.  IT MERITS NOTING HOW OFTEN AND HOW
UNEQUIVOCALLY THE COURT HAS EXPRESSED ITS ANTIPATHY TO EFFORTS TO
CONVERT THE JUDICIARY INTO AN OPEN FORUM FOR THE RESOLUTION OF
POLITICAL OR IDEOLOGICAL DISPUTES ABOUT THE PERFORMANCE OF GOVERNMENT. 
SEE, E. G., EX PARTE LEVITT, 302 U.S. 633, 634 (1937); /11/
FROTHINGHAM V. MELLON, 262 U.S. 447, 488 (1923); /12/  FAIRCHILD V.
HUGHES, 258 U.S. 126, 129 (1922); /13/  TYLER V. JUDGES OF COURT OF
REGISTRATION, 179 U.S. 405, 406 (1900).  /14/  THESE HOLDINGS AND
DECLARATIONS REFLECT A WISE VIEW OF THE NEED FOR JUDICIAL RESTRAINT IF
WE ARE TO PRESERVE THE JUDICIARY AS THE BRANCH "LEAST DANGEROUS TO THE
POLITICAL RIGHTS OF THE CONSTITUTION . . . ."  FEDERALIST NO. 78, P.
483 (LODGE ED. 1908). 

TO BE SURE STANDING BARRIERS HAVE BEEN SUBSTANTIALLY LOWERED IN THE
LAST THREE DECADES.  THE COURT HAS CONFIRMED THE POWER OF CONGRESS TO
OPEN THE FEDERAL COURTS TO REPRESENTATIVES OF THE PUBLIC INTEREST
THROUGH SPECIFIC STATUTORY GRANTS OF STANDING.  E. G., FCC V. SANDERS
BROS. RADIO STATION, 309 U.S. 470 (1940); SCRIPPS-HOWARD RADIO, INC. V.
FCC, 316 U.S. 4 (1942); FLAST V. COHEN, 392 U.S.,AT 130 - 133 (HARLAN,
J., DISSENTING); TRAFFICANTE V. METROPOLITAN LIFE INSURANCE CO., 409
U.S. 205, 212 (1972) (WHITE, J., CONCURRING).  EVEN IN THE ABSENCE OF
SPECIFIC STATUTORY GRANTS OF STANDING, ECONOMIC INTERESTS THAT AT ONE
TIME WOULD NOT HAVE CONFERRED STANDING HAVE BEEN RE-EXAMINED AND FOUND
SUFFICIENT.  COMPARE, E.G., ASSOCIATION OF DATA PROCESSING SERVICE
ORGANIZATIONS, INC. V. CAMP, 397 U.S. 150 (1970), AND BARLOW V.
COLLINS, 397 U.S. 159 (1970), WITH E.G., TENNESSEE ELECTRIC POWER CO.
V. TVA, 306 U.S. 118 (1939), AND ALABAMA POWER CO. V. ICKES, 302 U.S.
464 (1938).  SEE ALSO INVESTMENT CO. INSTITUTE V. CAMP, 401 U.S. 617
(1971); ARNOLD TOURS, INC. V. CAMP, 400 U.S. 45 (1970).  NONECONOMIC
INTERESTS HAVE BEEN RECOGNIZED.  E. G., BAKER V. CARR, 369 U.S. 186
(1962); SIERRA CLUB V. MORTON, 405 U.S. 727 (1972).  A STRINGENTLY
LIMITED EXCEPTION FOR FEDERAL TAXPAYER STANDING HAS BEEN CREATED. 
FLAST V. COHEN, SUPRA.  THE CONCEPT OF PARTICULARIZED INJURY HAS BEEN
DRAMATICALLY DILUTED.  E. G., UNITED STATES V. SCRAP, 412 U.S. 669
(1973). 

THE REVOLUTION IN STANDING DOCTRINE THAT HAS OCCURRED, PARTICULARLY
IN THE 12 YEARS SINCE BAKER V. CARR, SUPRA, HAS NOT MEANT, HOWEVER,
THAT STANDING BARRIERS HAVE DISAPPEARED ALTOGETHER.  AS THE COURT NOTED
IN SIERRA CLUB, "BROADENING THE CATEGORIES OF INJURY THAT MAY BE
ALLEGED IN SUPPORT OF STANDING IS A DIFFERENT MATTER FROM ABANDONING
THE REQUIREMENT THAT THE PARTY SEEKING REVIEW MUST HIMSELF HAVE
SUFFERED AN INJURY."  405 U.S.,AT 738.  ACCORD, LINDA R. S. V. RICHARD
D., 410 U.S. 614, 617 (1973).  /15/ INDEED, DESPITE THE DIMINUTION OF
STANDING REQUIREMENTS IN THE LAST DECADE, THE COURT HAS NOT BROKEN WITH
THE TRADITIONAL REQUIREMENT THAT, IN THE ABSENCE OF A SPECIFIC
STATUTORY GRANT OF THE RIGHT OF REVIEW, A PLAINTIFF MUST ALLEGE SOME
PARTICULARIZED INJURY THAT SETS HIM APART FROM THE MAN ON THE STREET. 
/16/ 

I RECOGNIZE THAT THE COURT'S ALLEGIANCE TO A REQUIREMENT OF
PARTICULARIZED INJURY HAS ON OCCASION REQUIRED A READING OF THE CONCEPT
THAT THREATENS TO TRANSFORM IT BEYOND RECOGNITION.  E. G., BAKER V.
CARR, SUPRA; FLAST V. COHEN, SUPRA.  /17/  BUT DESPITE SUCH OCCASIONAL
DIGRESSIONS, THE REQUIREMENT REMAINS, AND I THINK IT DOES SO FOR THE
REASONS OUTLINED ABOVE.  IN RECOGNITION OF THOSE CONSIDERATIONS, WE
SHOULD REFUSE TO GO THE LAST MILE TOWARDS ABOLITION OF STANDING
REQUIREMENTS THAT IS IMPLICIT IN BROADENING THE "PRECARIOUS OPENING"
FOR FEDERAL TAXPAYERS CREATED BY FLAST, SEE 392 U.S.,AT 116 (FORTAS,
J., CONCURRING), OR IN ALLOWING A CITIZEN QUA CITIZEN TO INVOKE THE
POWER OF THE FEDERAL COURTS TO NEGATIVE UNCONSTITUTIONAL ACTS OF THE
FEDERAL GOVERNMENT. 

IN SUM, I BELIEVE WE SHOULD LIMIT THE EXPANSION OF FEDERAL TAXPAYER
AND CITIZEN STANDING IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION
TO AN OUTER BOUNDARY DRAWN BY THE RESULTS IN FLAST AND BAKER V. CARR. 
I THINK WE SHOULD FACE UP TO THE FACT THAT ALL SUCH SUITS ARE AN EFFORT
"TO EMPLOY A FEDERAL COURT AS A FORUM IN WHICH TO AIR . . . GENERALIZED
GRIEVANCES ABOUT THE CONDUCT OF GOVERNMENT OR THE ALLOCATION OF POWER
IN THE FEDERAL SYSTEM."  FLAST V. COHEN, 392 U. S., AT 106.  THE COURT
SHOULD EXPLICITLY REAFFIRM TRADITIONAL PRUDENTIAL BARRIERS AGAINST SUCH
PUBLIC ACTIONS.  /18/  MY REASONS FOR THIS VIEW ARE ROOTED IN RESPECT
FOR DEMOCRATIC PROCESSES AND IN THE CONVICTION THAT "(THE POWERS OF THE
FEDERAL JUDICIARY WILL BE ADEQUATE FOR THE GREAT BURDENS PLACED UPON
THEM ONLY IF THEY ARE EMPLOYED PRUDENTLY, WITH RECOGNITION OF THE
STRENGTHS AS WELL AS THE HAZARDS THAT GO WITH OUR KIND OF
REPRESENTATIVE GOVERNMENT."  ID., AT 131 (HARLAN, J., DISSENTING). 

/1/  SEE ALSO, E. G., BARLOW V. COLLINS, 397 U.S. 159, 170 - 171
(1970) (BRENNAN, J., DISSENTING); SCOTT, STANDING IN THE SUPREME COURT-
A FUNCTIONAL ANALYSIS, 86 HARV.L.REV.  645, 658 (1973).  THE TEST
ANNOUNCED IN BAKER AND REITERATED IN FLAST REFLECTS HOW FAR THE COURT
HAS MOVED IN RECENT YEARS IN RELAXING STANDING RESTRAINTS.  IN
FROTHINGHAM V. MELLON, 262 U.S. 447 (1923), FOR EXAMPLE, THE COURT
DECLARED THAT TO PERMIT A FEDERAL TAXPAYER SUIT "WOULD BE NOT TO DECIDE
A JUDICIAL CONTROVERSY, BUT TO ASSUME A POSITION OF AUTHORITY OVER THE
GOVERNMENTAL ACTS OF ANOTHER AND CO-EQUAL DEPARTMENT, AN AUTHORITY
WHICH PLAINLY WE DO NOT POSSESS."  ID., AT 489.  AND IN DENYING
STANDING TO CITIZENS AND TAXPAYERS SEEKING TO BRING SUIT TO INVALIDATE
THE NINETEENTH AMENDMENT IN FAIRCHILD V. HUGHES, 258 U.S. 126 (1922),
THE COURT STATED: 

"IT IS FRANKLY A PROCEEDING TO HAVE THE NINETEENTH AMENDMENT
DECLARED VOID.  IN FORM IT IS A BILL IN EQUITY; BUT IT IS NOT A CASE
WITHIN THE MEANING OF 2 OF ARTICLE III OF THE CONSTITUTION . . . ." 
ID., AT 129. 

/2/  MR. JUSTICE HARLAN'S CRITICISMS OF THE COURT'S ANALYSIS IN
FLAST HAVE BEEN ECHOED BY SEVERAL COMMENTATORS.  E. G., SCOTT, SUPRA,
N. 1, AT 660 - 662; DAVIS, STANDING:  TAXPAYERS AND OTHERS, 35
U.CHI.L.REV.  601, 604 - 607 (1968).  AS PROFESSOR SCOTT NOTES: "(THE
FLAST 'NEXUS' TEST) CAN BE UNDERSTOOD AS AN EXPEDIENT BY A COURT
RETREATING FROM THE ABSOLUTE BARRIER OF FROTHINGHAM, BUT NOT SURE OF
HOW FAR TO GO AND DESIROUS OF A FORMULA THAT WOULD ENABLE IT TO MAKE
CASE BY CASE DETERMINATIONS IN THE FUTURE.  BY ANY OTHER STANDARD,
HOWEVER, IT IS UNTENABLE."  86 HARV. L. REV., AT 661. 

/3/  BUT SEE SCRIPPS-HOWARD RADIO, INC. V. FCC, 316 U.S. 4, 18, 20 -
21 (1942) (DOUGLAS, J., DISSENTING).  MR. JUSTICE BRENNAN'S VIEW, SEE
POST, AT 237 - 238, THAT FEDERAL TAXPAYERS ARE ABLE TO MEET THE "INJURY
IN-FACT"  TEST THAT HE ARTICULATED IN BARLOW V. COLLINS, 397 U.S.,AT
167 - 173, RENDERS HIS POSITION, FOR ME AT LEAST, INDISTINGUISHABLE
FROM THAT OF MR. JUSTICE DOUGLAS.  FURTHERMORE, I THINK THAT MR.
JUSTICE BRENNAN HAS MODIFIED THE STANDARD HE IDENTIFIED IN BARLOW BY
FINDING IT SATISFIED IN THIS CASE.  IT IS A CONSIDERABLE STEP FROM THE
"DISTINCTIVE AND DISCRIMINATING" ECONOMIC INJURY ALLEGED IN BARLOW, SEE
ID., AT 172 N. 5, TO THE GENERALIZED INTEREST OF A TAXPAYER OR CITIZEN,
AS MR. JUSTICE BRENNAN APPEARS TO HAVE ACKNOWLEDGED IN HIS OPINION IN
THAT CASE.  IBID. 

/4/  IN FLAST V. COHEN, 392 U.S. 83 (1968), MR. JUSTICE STEWART
BASED HIS CONCURRENCE IN THE MAJORITY'S OPINION ON THE VIEW THAT THE
ESTABLISHMENT CLAUSE CONSTITUTES AN EXPLICIT PROHIBITION ON THE TAXING
AND SPENDING POWER: 

"BECAUSE THAT CLAUSE PLAINLY PROHIBITS TAXING AND SPENDING IN AID OF
RELIGION, EVERY TAXPAYER CAN CLAIM A PERSONAL CONSTITUTIONAL RIGHT NOT
TO BE TAXED FOR THE SUPPORT OF A RELIGIOUS INSTITUTION.  THE PRESENT
CASE IS THUS READILY DISTINGUISHABLE FROM FROTHINGHAM V. MELLON, 262
U.S. 447, WHERE THE TAXPAYER DID NOT RELY ON AN EXPLICIT CONSTITUTIONAL
PROHIBITION BUT INSTEAD QUESTIONED THE SCOPE OF THE POWERS DELEGATED TO
THE NATIONAL LEGISLATURE BY ARTICLE I OF THE CONSTITUTION."  392
U.S.,AT 114.  (EMPHASIS SUPPLIED.) 

/5/  ONE COMMENTATOR, WHO ESPOUSES A BROADENING OF STANDING IN WHAT
HE REFERS TO AS "PUBLIC ACTIONS," APPARENTLY SHARES THIS DIFFICULTY. 
SEE L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 484 (1965): 

"(THE ABILITY OF A TAXPAYER OR CITIZEN TO BRING A PUBLIC ACTION)
SHOULD NOT DEPEND ON WHETHER THE QUESTIONED OFFICIAL CONDUCT IS OF A
POSITIVE OR NEGATIVE CHARACTER, THAT IS, WHETHER IT CONSISTS OF THE
PERFORMANCE OF AN IMPROPER ACT OR THE FAILURE TO FULFILL A DUTY." 

/6/  SUCH AN APPROACH MIGHT WELL LEAD TO PROBLEMS OF CLASSIFICATION
THAT WOULD DIVERT ATTENTION FROM THE FUNDAMENTAL QUESTION OF WHETHER
PUBLIC ACTIONS ARE AN APPROPRIATE MATTER FOR THE FEDERAL COURTS.  AND,
IF DISTINCTIONS BETWEEN CONSTITUTIONAL PROHIBITIONS AND DUTIES ARE TO
MAKE A DIFFERENCE, THERE ARE CERTAIN TO BE SOME INCONGRUOUS RULES AS TO
WHEN SUCH A PUBLIC ACTION MAY BE BROUGHT.  THIS IS APPARENT WHEN ONE
ATTEMPTS TO CATEGORIZE THE PROVISIONS OF THE CONSTITUTION PRIMARILY
ADDRESSED AT LIMITING THE POWERS OF THE NATIONAL GOVERNMENT--ART.  I,
9, AND THE BILL OF RIGHTS.  ALL OF THE CLAUSES OF ART. I, 9, EXCEPT THE
SEVENTH, WHICH IS AT ISSUE HERE, ARE STATED AS PROHIBITIONS.  IN FACT
THE SEVENTH CLAUSE IS IN PART A PROHIBITION AGAINST EXPENDITURES OF
PUBLIC MONEY IN THE ABSENCE OF APPROPRIATIONS AND IN PART AN
AFFIRMATIVE DUTY TO PUBLISH PERIODICALLY AN ACCOUNT OF SUCH
EXPENDITURES.  THE RATIONALE FOR ACCORDING SPECIAL TREATMENT SOLELY TO
ONE-HALF OF ART. I, 9, CL. 7, AND NOT TO THE OTHER AND NOT TO THE
REMAINING CLAUSES OF ART. I, 9, IS NOT IMMEDIATELY APPARENT. 

THE SAME OBSERVATION MAY BE MADE OF THE BILL OF RIGHTS.  THE FIRST
AMENDMENT THROUGH THE FIFTH, THE EIGHTH, AND POSSIBLY THE TENTH ARE
STATED IN TERMS OF PROHIBITIONS.  THE SIXTH AMENDMENT AND PORTIONS OF
THE SEVENTH CAN BE CLASSIFIED AS DUTIES.  THE NINTH DEFIES
CLASSIFICATION.  RATIONAL RULES FOR STANDING IN PUBLIC ACTIONS ARE, IT
SEEMS TO ME, UNLIKELY TO EMERGE FROM AN EFFORT TO MAKE THE FORMAT OF A
PARTICULAR AMENDMENT DETERMINATIVE. 

/7/  ONE COMMENTATOR PREDICTED THIS PHENOMENON AND ITS POSSIBLE
IMPLICATIONS AT THE OUTSET OF THE PAST DECADE OF DRAMATIC CHANGES IN
STANDING DOCTRINE: 

"(JUDICIAL POWER EXPANDS AS THE REQUIREMENTS OF STANDING ARE RELAXED
. . . . (IF THE SO-CALLED PUBLIC ACTION . . . WERE ALLOWED WITH RESPECT
TO CONSTITUTIONAL CHALLENGES TO LEGISLATION, THEN THE HALLS OF CONGRESS
AND OF THE STATE LEGISLATURES WOULD BECOME WITH REGULARITY ONLY ACT I
OF ANY CONTEST TO ENACT LEGISLATION INVOLVING PUBLIC OFFICIALS IN ITS
ENFORCEMENT OR APPLICATION.  ACT II WOULD, WITH THE USUAL BRIEF
INTERLUDE, FOLLOW IN THE COURTS . . . ."  BROWN, QUIS CUSTODIET IPSOS
CUSTODES?--THE SCHOOL-PRAYER CASES, 1963 SUP.CT.REV.  1, 15 - 16. 

/8/  CF. A BICKEL, THE LEAST DANGEROUS BRANCH 122 (1962). 

/9/  RANDOLPH'S RESOLUTIONS, ALSO REFERRED TO AS THE VIRGINIA PLAN,
SERVED AS THE "MATRIX" FOR THE DOCUMENT ULTIMATELY DEVELOPED BY THE
CONSTITUTIONAL CONVENTION.  SEE 1 J. GOEBEL, HISTORY OF THE SUPREME
COURT OF THE UNITED STATES 204 (1971).  THE EIGHTH OF MR. RANDOLPH'S 15
PROPOSALS WAS AS FOLLOWS: 

"8. RESD.  THAT THE EXECUTIVE AND A CONVENIENT NUMBER OF THE
NATIONAL JUDICIARY, OUGHT TO COMPOSE A COUNCIL OF REVISION WITH
AUTHORITY TO EXAMINE EVERY ACT OF THE NATIONAL LEGISLATURE BEFORE IT
SHALL OPERATE, & EVERY ACT OF A PARTICULAR LEGISLATURE BEFORE A
NEGATIVE THEREON SHALL BE FINAL; AND THAT THE DISSENT OF THE SAID
COUNCIL SHALL AMOUNT TO A REJECTION, UNLESS THE ACT OF THE NATIONAL
LEGISLATURE BE AGAIN PASSED, OR THAT OF A PARTICULAR LEGISLATURE BE
AGAIN NEGATIVED BY (AN UNSPECIFIED NUMBER) OF THE MEMBERS OF EACH
BRANCH."  1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787,
P. 21 (1911) (HEREINAFTER FARRAND).  SEE 1 J. ELLIOT, DEBATES ON THE
FEDERAL CONSTITUTION 144 (1836).  MADISON ABLY SUPPORTED THE PROPOSAL,
BUT IT WAS DEFEATED ON THREE SEPARATE VOTES.  1 FARRAND 140, 2 FARRAND
71 - 72, 298. 

THE ANALOGY BETWEEN THE PROPOSED COUNCIL OF REVISION AND
UNRESTRICTED TAXPAYER OR CITIZEN STANDING IS NOT COMPLETE.  FOR
EXAMPLE, RANDOLPH PROPOSED TO LINK THE JUDICIARY DIRECTLY TO THE
EXECUTIVE, IN LARGE MEASURE TO ENHANCE THE EXECUTIVE AND TO PROTECT IT
FROM LEGISLATIVE ENCROACHMENTS.  SEE, E. G., 1 FARRAND 108, 138; 2
FARRAND 74, 79.  THUS, RELIANCE ON THE FRAMERS' REJECTION OF THE
COUNCIL MUST BE APPROACHED WITH CAUTION.  NEVERTHELESS, THE ARGUMENTS
ADVANCED AT THE CONVENTION IN SUPPORT OF AND IN OPPOSITION TO THE
COUNCIL PROVIDE AN INTERESTING PARALLEL TO PRESENT CONTENTIONS
REGARDING UNRESTRAINED PUBLIC ACTIONS.  FOR EXAMPLE, MADISON SPOKE OF
THE "GOOD" THAT WOULD "PROCEED FROM THE PERSPICUITY, THE CONCISENESS,
AND THE SYSTEMATIC CHARACTER WCH.  THE CODE OF LAWS WD. RECEIVE FROM
THE JUDICIARY TALENTS."  1 FARRAND 139.  HE DECLARED THAT THE PROPOSAL
WOULD BE USEFUL "TO RESTRAIN THE LEGISLATURE FROM ENCROACHING ON THE
OTHER CO-ORDINATE DEPARTMENTS, OR ON THE RIGHTS OF THE PEOPLE AT LARGE;
OR FROM PASSING LAWS UNWISE IN THEIR PRINCIPLE, OR INCORRECT IN THEIR
FORM . . .,"  IBID., AND THAT SUCH A SYSTEM WOULD BE "USEFUL TO THE
COMMUNITY AT LARGE AS AN ADDITIONAL CHECK" AGAINST UNWISE LEGISLATIVE
MEASURES.  2 FARRAND 74.  THOSE OPPOSED TO THE PROPOSAL, INCLUDING
GERRY, MARTIN, AND RUTLEDGE, PREFERRED TO RELY "ON THE REPRESENTATIVES
OF THE PEOPLE AS THE GUARDIANS OF THEIR RIGHTS & INTEREST."  ID., AT
75.  JUDGES WERE NOT PRESUMED "TO POSSESS ANY PECULIAR KNOWLEDGE OF THE
MERE POLICY OF PUBLIC MEASURES . . .," ID., AT 73, OR ANY "HIGHER . . .
DEGREE" OF KNOWLEDGE OF MANKIND AND OF "LEGISLATIVE AFFAIRS . . . ." 
ID., AT 76.  IT WAS "NECESSARY THAT THE SUPREME JUDICIARY SHOULD HAVE
THE CONFIDENCE OF THE PEOPLE . . .," ID., AT 76 - 77, AND THIS WOULD
"SOON BE LOST, IF THEY ARE EMPLOYED IN THE TASK OF REMONSTRATING AGST. 
POPULAR MEASURES OF THE LEGISLATURE."  ID., AT 77.  MOREOVER, THE
"JUDGES OUGHT NEVER TO GIVE THEIR OPINION ON A LAW TILL IT COMES BEFORE
THEM."  ID., AT 80.     THE ARGUMENTS ADDUCED AT THE CONVENTION IN
OPPOSITION TO THE COUNCIL OF REVISION ULTIMATELY PREVAILED.  I BELIEVE
THAT ANALOGOUS ARGUMENTS SHOULD GUIDE US IN REFUSING AS A GENERAL
MATTER TO ENTERTAIN PUBLIC ACTIONS. 

/10/  SOME WESTERN EUROPEAN DEMOCRACIES HAVE EXPERIMENTED WITH FORMS
OF CONSTITUTIONAL JUDICIAL REVIEW IN THE ABSTRACT, SEE, E. G., M.
CAPPELLETTI, JUDICIAL REVIEW IN THE CONTEMPORARY WORLD 71 - 72 (1971),
BUT THAT HAS NOT BEEN OUR EXPERIENCE, AND I THINK FOR GOOD REASONS. 
CF. BICKEL, SUPRA, N. 8, AT 115 - 116. 

/11/  "IT IS AN ESTABLISHED PRINCIPLE THAT TO ENTITLE A PRIVATE
INDIVIDUAL TO INVOKE THE JUDICIAL POWER TO DETERMINE THE VALIDITY OF
EXECUTIVE OR LEGISLATIVE ACTION HE MUST SHOW THAT HE HAS SUSTAINED OR
IS IMMEDIATELY IN DANGER OF SUSTAINING A DIRECT INJURY AS THE RESULT OF
THAT ACTION AND IT IS NOT SUFFICIENT THAT HE HAS MERELY A GENERAL
INTEREST COMMON TO ALL MEMBERS OF THE PUBLIC." 

/12/  "THE PARTY WHO INVOKES THE POWER (OF THE JUDICIARY TO DECLARE
A STATUTE UNCONSTITUTIONAL) MUST BE ABLE TO SHOW NOT ONLY THAT THE
STATUTE IS INVALID BUT THAT HE HAS SUSTAINED OR IS IMMEDIATELY IN
DANGER OF SUSTAINING SOME DIRECT INJURY AS THE RESULT OF ITS
ENFORCEMENT, AND NOT MERELY THAT HE SUFFERS IN SOME INDEFINITE WAY IN
COMMON WITH PEOPLE GENERALLY." 

/13/  "(STANDING WILL BE DENIED WHERE A PLAINTIFF) HAS ONLY THE
RIGHT, POSSESSED BY EVERY CITIZEN, TO REQUIRE THAT THE GOVERNMENT BE
ADMINISTERED ACCORDING TO LAW AND THAT THE PUBLIC MONEYS BE NOT
WASTED." 

/14/  "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." 

/15/  SEE IBID.: 

"ALTHOUGH THE LAW OF STANDING HAS BEEN GREATLY CHANGED IN THE LAST
10 YEARS, WE HAVE STEADFASTLY ADHERED TO THE REQUIREMENT THAT, AT LEAST
IN THE ABSENCE OF A STATUTE EXPRESSLY CONFERRING STANDING, FEDERAL
PLAINTIFFS MUST ALLEGE SOME THREATENED OR ACTUAL INJURY RESULTING FROM
THE PUTATIVELY ILLEGAL ACTION BEFORE A FEDERAL COURT MAY ASSUME
JURISDICTION."  (FOOTNOTES OMITTED.) 

/16/  FOR EXAMPLE, AS THE COURT NOTED IN SIERRA CLUB V. MORTON, 405
U.S. 727 (1972), "IF ANY GROUP WITH A BONA FIDE 'SPECIAL INTEREST'
COULD INITIATE . . . LITIGATION, IT IS DIFFICULT TO PERCEIVE WHY ANY
INDIVIDUAL CITIZEN WITH THE SAME BONA FIDE SPECIAL INTEREST WOULD NOT
ALSO BE ENTITLED TO DO SO."  ID., AT 739 - 740.  THE CLEAR IMPLICATION
IS THAT ALLOWING "ANY INDIVIDUAL CITIZEN WITH (A) . . . BONA FIDE
SPECIAL INTEREST" TO TRIGGER FEDERAL COURT LITIGATION IS A RESULT TO BE
AVOIDED.  ALL STANDING CASES, EVEN THE MOST RECENT ONES, INCLUDE
REFERENCES TO THE NEED FOR PARTICULARIZED INJURY OR SIMILAR LANGUAGE. 
NONE OF THEM AS YET HAS EQUATED THE INTEREST OF A TAXPAYER OR CITIZEN,
SUING IN THAT STATUS ALONE, WITH THE PARTICULARIZED INTEREST THAT
STANDING DOCTRINE HAS TRADITIONALLY DEMANDED.  TO TAKE THAT STEP, IT
APPEARS TO ME, WOULD RENDER THE REQUIREMENT OF DIRECT OR IMMEDIATE
INJURY MEANINGLESS AND WOULD REDUCE THE COURT'S CONSISTENT INSISTENCE
ON SUCH AN INJURY TO MERE TALK. 

/17/  BAKER V. CARR MAY HAVE A SPECIAL CLAIM TO SUI GENERIS STATUS. 
IT WAS PERHAPS A NECESSARY RESPONSE TO THE MANIFEST DISTORTION OF
DEMOCRATIC PRINCIPLES PRACTICED BY MALAPPORTIONED LEGISLATURES AND TO
ABUSES OF THE POLITICAL SYSTEM SO PERVASIVE AS TO UNDERMINE DEMOCRATIC
PROCESSES.  FLAST V. COHEN MAY ALSO HAVE BEEN A REACTION TO WHAT
APPEARED AT THE TIME AS AN IMMUTABLE POLITICAL LOGJAM THAT INCLUDED
UNSUCCESSFUL EFFORTS TO CONFER SPECIFIC STATUTORY GRANTS OF STANDING. 
SEE, E. G., C. WRIGHT, THE LAW OF FEDERAL COURTS 40 (2D ED. 1970).  CF.
392 U.S.,AT 115 - 116 (FORTAS, J., CONCURRING). 

/18/  THE DOCTRINE OF STANDING HAS ALWAYS REFLECTED PRUDENTIAL AS
WELL AS CONSTITUTIONAL LIMITATIONS.  INDEED, IT MIGHT BE SAID THAT THE
CORRECT READING OF THE FLAST NEXUS TEST IS AS A PRUDENTIAL LIMIT, GIVEN
THE BAKER V. CARR DEFINITION OF THE CONSTITUTIONAL BARE MINIMA.  THE
SAME IS UNDOUBTEDLY TRUE OF, FOR EXAMPLE, THE SECOND TEST CREATED IN
ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS, INC. V. CAMP, 397
U.S. 150, 153 (1970)--"WHETHER THE INTEREST SOUGHT TO BE PROTECTED BY
THE COMPLAINANT IS ARGUABLY WITHIN THE ZONE OF INTERESTS TO BE
PROTECTED OR REGULATED BY THE STATUTE OR CONSTITUTIONAL GUARANTEE IN
QUESTION."  SEE ALSO BARROWS V. JACKSON, 346 U.S. 249, 255 (1953):
"APART FROM THE (CONSTITUTIONAL) REQUIREMENT, THIS COURT HAS DEVELOPED
A COMPLEMENTARY RULE OF SELF-RESTRAINT FOR ITS OWN GOVERNANCE . . .
WHICH ORDINARILY PRECLUDES A PERSON FROM CHALLENGING THE
CONSTITUTIONALITY OF STATE ACTION BY INVOKING THE RIGHTS OF OTHERS." 
SEE FLAST V. COHEN, 392 U.S.,AT 120, 130 - 133 (HARLAN, J.,
DISSENTING).  WHATEVER MAY HAVE BEEN THE COURT'S INITIAL PERCEPTION OF
THE INTENT OF THE FRAMERS, SEE N. 1, SUPRA, IT IS NOW SETTLED THAT SUCH
RULES OF SELF-RESTRAINT ARE NOT REQUIRED BY ART. III BUT ARE
"JUDICIALLY CREATED OVERLAYS THAT CONGRESS MAY STRIP AWAY . . . ."  G.
GUNTHER & N. DOWLING, CASES AND MATERIALS ON CONSTITUTIONAL LAW 106
(8TH ED. 1970).  BUT WHERE CONGRESS DOES SO, MY OBJECTIONS TO PUBLIC
ACTIONS ARE AMELIORATED BY THE CONGRESSIONAL MANDATE.  SPECIFIC
STATUTORY GRANTS OF STANDING IN SUCH CASES ALLEVIATE THE CONDITIONS
THAT MAKE "JUDICIAL FORBEARANCE THE PART OF WISDOM."  FLAST, SUPRA, AT
132 (HARLAN, J., DISSENTING) (FOOTNOTE OMITTED). 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS ON THE
"STANDING"  ISSUE.  MY VIEWS ARE EXPRESSED IN THE SCHLESINGER CASE,
POST, P. 229, DECIDED THIS DAY.  THERE A CITIZEN AND TAXPAYER RAISED A
QUESTION CONCERNING THE INCOMPATIBILITY CLAUSE OF THE CONSTITUTION
WHICH BARS A PERSON FROM "HOLDING ANY OFFICE UNDER THE UNITED STATES"
IF HE IS A MEMBER OF CONGRESS, ART, I, 6, CL. 2.  THAT ACTION WAS
DESIGNED TO BRING THE PENTAGON INTO LINE WITH THAT CONSTITUTIONAL
REQUIREMENT BY REQUIRING IT TO DROP "RESERVISTS" WHO WERE MEMBERS OF
CONGRESS. 

THE PRESENT ACTION INVOLVES ART. I, 9, CL. 7, OF THE CONSTITUTION
WHICH PROVIDES: 

     "NO MONEY SHALL BE DRAWN FROM THE TREASURY, BUT IN CONSEQUENCE

  OF APPROPRIATIONS MADE BY LAW; AND A REGULAR STATEMENT AND

  ACCOUNT OF THE RECEIPTS AND EXPENDITURES OF ALL PUBLIC MONEY

  SHALL BE PUBLISHED FROM TIME TO TIME." 

WE HELD IN FLAST V. COHEN, 392 U.S. 83, THAT A TAXPAYER HAD
"STANDING" TO CHALLENGE THE CONSTITUTIONALITY OF TAXES RAISED TO
FINANCE THE ESTABLISHMENT OF A RELIGION CONTRARY TO THE COMMAND OF THE
FIRST AND FOURTEENTH AMENDMENTS.  A TAXPAYER MAKING SUCH OUTLAYS, WE
HELD, HAD SUFFICIENT "PERSONAL STAKE"  IN THE CONTROVERSY, BAKER V.
CARR, 369 U.S. 186, 204, TO GIVE THE CASE THE "CONCRETE ADVERSENESS"
NECESSARY FOR THE RESOLUTION OF CONSTITUTIONAL ISSUES.  IBID. 

RESPONDENT IN THE PRESENT CASE CLAIMS THAT HE HAS A RIGHT TO "A
REGULAR STATEMENT AND ACCOUNT" OF RECEIPTS AND EXPENDITURES OF PUBLIC
MONEYS FOR THE CENTRAL INTELLIGENCE AGENCY.  AS THE COURT OF APPEALS
NOTED, FLAST RECOGNIZES "STANDING" OF A TAXPAYER TO CHALLENGE
APPROPRIATIONS MADE IN THE FACE OF A CONSTITUTIONAL PROHIBITION, AND IT
LOGICALLY ASKS, "HOW CAN A TAXPAYER MAKE THAT CHALLENGE UNLESS HE KNOWS
HOW THE MONEY IS BEING SPENT?"  465 F.2D 844, 853. 

HISTORY SHOWS THAT THE CURSE OF GOVERNMENT IS NOT ALWAYS VENALITY;
SECRECY IS ONE OF THE MOST TEMPTING COVERUPS TO SAVE REGIMES FROM
CRITICISM.  AS THE COURT OF APPEALS SAID: 

"THE FRAMERS OF THE CONSTITUTION DEEMED FISCAL INFORMATION ESSENTIAL
IF THE ELECTORATE WAS TO EXERCISE ANY CONTROL OVER ITS REPRESENTATIVES
AND MEET THEIR NEW RESPONSIBILITIES AS CITIZENS OF THE REPUBLIC; AND
THEY MANDATED PUBLICATION, ALTHOUGH STATED IN GENERAL TERMS, OF THE
GOVERNMENT'S RECEIPTS AND EXPENDITURES.  WHATEVER THE ULTIMATE SCOPE
AND EXTENT OF THAT OBLIGATION, ITS ELIMINATION GENERATES A SUFFICIENT,
ADVERSE INTEREST IN A TAXPAYER."  IBID.  (FOOTNOTE OMITTED.) 

WHATEVER MAY BE THE MERITS OF THE UNDERLYING CLAIM, IT SEEMS CLEAR
THAT THE TAXPAYER IN THE PRESENT CASE IS NOT MAKING A GENERALIZED
COMPLAINT ABOUT THE OPERATION OF GOVERNMENT.  HE DOES NOT EVEN
CHALLENGE THE CONSTITUTIONALITY OF THE CENTRAL INTELLIGENCE AGENCY
ACT.  HE ONLY WANTS TO KNOW THE AMOUNT OF TAX MONEY EXACTED FROM HIM
THAT GOES INTO CIA ACTIVITIES.  SECRECY OF THE GOVERNMENT ACQUIRES NEW
SANCTITY WHEN HIS CLAIM IS DENIED.  SECRECY HAS, OF COURSE, SOME
CONSTITUTIONAL SANCTION.  ARTICLE I, 5, CL. 3, PROVIDES THAT "EACH
HOUSE SHALL KEEP A JOURNAL OF ITS PROCEEDINGS, AND FROM TIME TO TIME
PUBLISH THE SAME, EXCEPTING SUCH PARTS AS MAY IN THEIR JUDGMENT REQUIRE
SECRECY . . . ." 

BUT THE DIFFERENCE WAS GREAT WHEN IT CAME TO AN ACCOUNTING OF PUBLIC
MONEY.  SECRECY WAS THE EVIL AT WHICH ART. I, 9, CL. 7, WAS AIMED.  AT
THE CONVENTION, MASON TOOK THE INITIATIVE IN MOVING FOR AN ANNUAL
ACCOUNT OF PUBLIC EXPENDITURES.  2 M. FARRAND, THE RECORDS OF THE
FEDERAL CONVENTION OF 1787, P. 618 (1911).  MADISON SUGGESTED IT BE
"FROM TIME TO TIME," ID., AT 618 - 619, BECAUSE IT WAS THOUGHT THAT
REQUIRING PUBLICATION AT FIXED INTERVALS MIGHT LEAD TO NO PUBLICATION
AT ALL.  INDEED UNDER THE ARTICLES OF CONFEDERATION "(A) PUNCTUAL
COMPLIANCE BEING OFTEN IMPOSSIBLE, THE PRACTICE HAD) CEASED
ALTOGETHER."  ID., AT 619. 

DURING THE MARYLAND DEBATES ON THE CONSTITUTION, JAMES MCHENRY SAID,
"(THE PEOPLE WHO GIVE THEIR MONEY OUGHT TO KNOW IN WHAT MANNER IT IS
EXPENDED," 3 FARRAND, SUPRA, AT 150.  IN THE VIRGINIA DEBATES MASON
EXPRESSED HIS BELIEF THAT WHILE SOME MATTERS MIGHT REQUIRE SECRECY (E.
G., ONGOING DIPLOMATIC NEGOTIATIONS AND MILITARY OPERATIONS) "HE DID
NOT CONCEIVE THAT THE RECEIPTS AND EXPENDITURES OF THE PUBLIC MONEY
OUGHT EVER TO BE CONCEALED.  THE PEOPLE, HE AFFIRMED, HAD A RIGHT TO
KNOW THE EXPENDITURES OF THEIR MONEY."  3 J. ELLIOT, DEBATES ON THE
FEDERAL CONSTITUTION 459 (1836).  LEE SAID THAT THE CLAUSE "MUST BE
SUPPOSED TO MEAN, IN THE COMMON ACCEPTATION OF LANGUAGE, SHORT,
CONVENIENT PERIODS"  AND THAT THOSE "WHO WOULD NEGLECT THIS PROVISION
WOULD DISOBEY THE MOST POINTED DIRECTIONS."  IBID.  MADISON ADDED THAT
AN ACCOUNTING FROM "TIME TO TIME" INSURED THAT THE ACCOUNTS WOULD BE
"MORE FULL AND SATISFACTORY TO THE PUBLIC, AND WOULD BE SUFFICIENTLY
FREQUENT."  ID., AT 460.  MADISON THROUGHT "THIS PROVISION WENT FARTHER
THAN THE CONSTITUTION OF ANY STATE IN THE UNION, OR PERHAPS IN THE
WORLD."  IBID.  IN NEW YORK, LIVINGSTON SAID, "WILL NOT THE
REPRESENTATIVES . . . CONSIDER IT AS ESSENTIAL TO THEIR POPULARITY, TO
GRATIFY THEIR CONSTITUENTS WITH FULL AND FREQUENT STATEMENTS OF THE
PUBLIC ACCOUNTS?  THERE CAN BE NO DOUBT OF IT," 2 ELLIOT,SUPRA, AT
347.  /1/ 

FROM THE HISTORY OF THE CLAUSE IT IS APPARENT THAT THE FRAMERS
INSERTED IT IN THE CONSTITUTION TO GIVE THE PUBLIC KNOWLEDGE OF THE WAY
PUBLIC FUNDS ARE EXPENDED.  NO ONE HAS A GREATER "PERSONAL STAKE" IN
POLICING THIS PROTECTIVE MEASURE THAN A TAXPAYER.  INDEED, IF A
TAXPAYER MAY NOT RAISE THE QUESTION, WHO MAY DO SO?  THE COURT STATES
THAT DISCRETION TO RELEASE INFORMATION IS IN THE FIRST INSTANCE
"COMMITTED TO THE SURVEILLANCE OF CONGRESS," AND THAT THE RIGHT OF THE
CITIZENRY TO INFORMATION UNDER ART. I, 9, CL. 7, CANNOT BE ENFORCED
DIRECTLY, BUT ONLY THROUGH THE "(SLOW, CUMBERSOME, AND UNRESPONSIVE"
ELECTORAL PROCESS.  ONE HAS ONLY TO READ CONSTITUTIONAL HISTORY TO
REALIZE THAT STATEMENT WOULD SHOCK MASON AND MADISON.  CONGRESS OF
COURSE HAS DISCRETION; BUT TO SAY THAT IT HAS THE POWER TO READ THE
CLAUSE OUT OF THE CONSTITUTION WHEN IT COMES TO ONE OR TWO OR THREE
AGENCIES IS ASTOUNDING.  THAT IS THE BARE-BONES ISSUE IN THE PRESENT
CASE.  DOES ART. I, 9, CL. 7, OF THE CONSTITUTION PERMIT CONGRESS TO
WITHHOLD "A REGULAR STATEMENT AND ACCOUNT"  RESPECTING ANY AGENCY IT
CHOOSES?  RESPECTING ALL FEDERAL AGENCIES?  WHAT PURPOSE, WHAT FUNCTION
IS THE CLAUSE TO PERFORM UNDER THE COURT'S CONSTRUCTION?  THE ELECTORAL
PROCESS ALREADY PERMITS THE REMOVAL OF LEGISLATORS FOR ANY REASON. 
ALLOWING THEIR REMOVAL AT THE POLLS FOR FAILURE TO COMPLY WITH ART. I,
9, CL. 7, EFFECTIVELY REDUCES THAT CLAUSE TO A NULLITY, GIVING IT NO
PURPOSE AT ALL. 

THE SOVEREIGN IN THIS NATION IS THE PEOPLE, NOT THE BUREAUCRACY. 
THE STATEMENT OF ACCOUNTS OF PUBLIC EXPENDITURES GOES TO THE HEART OF
THE PROBLEM OF SOVEREIGNTY.  IF TAXPAYERS MAY NOT ASK THAT RUDIMENTARY
QUESTION, THEIR SOVEREIGNTY BECOMES AN EMPTY SYMBOL AND A SECRET
BUREAUCRACY IS ALLOWED TO RUN OUR AFFAIRS. 

THE RESOLUTION OF THAT ISSUE HAS NOT BEEN ENTRUSTED TO ONE OF THE
OTHER COORDINATE BRANCHES OF GOVERNMENT--THE TEST OF THE "POLITICAL
QUESTION"  UNDER BAKER V. CARR, 369 U.S.,AT 217.  THE QUESTION IS
"POLITICAL" IF THERE IS "A TEXTUALLY DEMONSTRABLE CONSTITUTIONAL
COMMITMENT OF THE ISSUE TO A COORDINATE POLITICAL DEPARTMENT," IBID.
THE MANDATE RUNS TO THE CONGRESS AND TO THE AGENCIES IT CREATES TO MAKE
"A REGULAR STATEMENT AND ACCOUNT OF THE RECEIPTS AND EXPENDITURES OF
ALL PUBLIC MONEY."  THE BENEFICIARY--AS IS ABUNDANTLY CLEAR FROM THE
CONSTITUTIONAL HISTORY--IS THE PUBLIC.  THE PUBLIC CANNOT INTELLIGENTLY
KNOW HOW TO EXERCISE THE FRANCHISE UNLESS IT HAS A BASIC KNOWLEDGE
CONCERNING AT LEAST THE GENERALITY OF THE ACCOUNTS UNDER EVERY HEAD OF
GOVERNMENT.  NO GREATER CRISIS IN CONFIDENCE CAN BE GENERATED THAN
TODAY'S DECISION.  ITS CONSEQUENCES ARE GRAVE BECAUSE IT RELEGATES TO
SECRECY VAST OPERATIONS OF GOVERNMENT AND KEEPS THE PUBLIC FROM KNOWING
WHAT SECRET PLANS CONCERNING THIS NATION OR OTHER NATIONS ARE AFOOT. 
THE FACT THAT THE RESULT IS SERIOUS DOES NOT, OF COURSE, MAKE THE ISSUE
"JUSTICIABLE."  BUT RESOLUTIONS OF ANY DOUBTS OR AMBIGUITIES SHOULD BE
TOWARD PROTECTING AN INDIVIDUAL'S STAKE IN THE INTEGRITY OF
CONSTITUTIONAL GUARANTEES RATHER THAN TURNING HIM AWAY WITHOUT EVEN A
CHANCE TO BE HEARD.     I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  LIVINGSTON USED THE PROPOSED ART. I, 9, CL. 7, TO COMBAT THE
IDEA THAT THE NEW CONGRESS WOULD BE CORRUPT.  HE SAID IN PART: 

"YOU WILL GIVE UP TO YOUR STATE LEGISLATURES EVERYTHING DEAR AND
VALUABLE; BUT YOU WILL GIVE NO POWER TO CONGRESS, BECAUSE IT MAY BE
ABUSED; YOU WILL GIVE THEM NO REVENUE, BECAUSE THE PUBLIC TREASURES MAY
BE SQUANDERED.  BUT DO YOU NOT SEE HERE A CAPITAL CHECK?  CONGRESS ARE
TO PUBLISH, FROM TIME TO TIME, AN ACCOUNT OF THEIR RECEIPTS AND
EXPENDITURES.  THESE MAY BE COMPARED TOGETHER; AND IF THE FORMER, YEAR
AFTER YEAR, EXCEED THE LATTER, THE CORRUPTION WILL BE DETECTED, AND THE
PEOPLE MAY USE THE CONSTITUTIONAL MODE OF REDRESS.  THE GENTLEMAN
ADMITS THAT CORRUPTION WILL NOT TAKE PLACE IMMEDIATELY:  ITS OPERATIONS
CAN ONLY BE CONDUCTED BY A LONG SERIES AND A STEADY SYSTEM OF
MEASURES.  THESE MEASURES WILL BE EASILY DEFEATED, EVEN IF THE PEOPLE
ARE UNAPPRIZED OF THEM.  THEY WILL BE DEFEATED BY THAT CONTINUAL CHANGE
OF MEMBERS, WHICH NATURALLY TAKES PLACE IN FREE GOVERNMENTS, ARISING
FROM THE DISAFFECTION AND INCONSTANCY OF THE PEOPLE.  A CHANGEABLE
ASSEMBLY WILL BE ENTIRELY INCAPABLE OF CONDUCTING A SYSTEM OF MISCHIEF;
THEY WILL MEET WITH OBSTACLES AND EMBARRASSMENTS ON EVERY SIDE."  2
ELLIOT, SUPRA, AT 345 - 346. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

THE COURT'S DECISIONS IN FLAST V. COHEN, 392 U.S. 83 (1968), AND
FROTHINGHAM V. MELLON, 262 U.S. 447 (1923), THROW VERY LITTLE LIGHT ON
THE QUESTION AT ISSUE IN THIS CASE.  FOR, UNLIKE THE PLAINTIFFS IN
THOSE CASES, RICHARDSON DID NOT BRING THIS ACTION ASKING A COURT TO
INVALIDATE A FEDERAL STATUTE ON THE GROUND THAT IT WAS BEYOND THE
DELEGATED POWER OF CONGRESS TO ENACT OR THAT IT CONTRAVENED SOME
CONSTITUTIONAL PROHIBITION.  RICHARDSON'S CLAIM IS OF AN ENTIRELY
DIFFERENT ORDER.  IT IS THAT ART. I, 9, CL. 7, OF THE CONSTITUTION, THE
STATEMENT AND ACCOUNT CLAUSE, GIVES HIM A RIGHT TO RECEIVE, AND IMPOSES
ON THE GOVERNMENT A CORRESPONDING AFFIRMATIVE DUTY TO SUPPLY, A
PERIODIC REPORT OF THE RECEIPTS AND EXPENDITURES "OF ALL PUBLIC
MONEY."  /1/ IN SUPPORT OF HIS STANDING TO LITIGATE THIS CLAIM, HE HAS
ASSERTED HIS STATUS BOTH AS A TAXPAYER AND AS A CITIZEN-VOTER.  WHETHER
THE STATEMENT AND ACCOUNT CLAUSE IMPOSES UPON THE GOVERNMENT AN
AFFIRMATIVE DUTY TO SUPPLY THE INFORMATION REQUESTED AND WHETHER THAT
DUTY RUNS TO EVERY TAXPAYER OR CITIZEN ARE QUESTIONS THAT GO TO THE
SUBSTANTIVE MERITS OF THIS LITIGATION.  THOSE QUESTIONS ARE NOT NOW
BEFORE US, BUT I THINK THAT THE COURT IS QUITE WRONG IN HOLDING THAT
THE RESPONDENT WAS WITHOUT STANDING TO RAISE THEM IN THE TRIAL COURT. 

SEEKING A DETERMINATION THAT THE GOVERNMENT OWES HIM A DUTY TO
SUPPLY THE INFORMATION HE HAS REQUESTED, THE RESPONDENT IS IN THE
POSITION OF A TRADITIONAL HOHFELDIAN PLAINTIFF.  /2/ HE CONTENDS THAT
THE STATEMENT AND ACCOUNT CLAUSE GIVES HIM A RIGHT TO RECEIVE THE
INFORMATION AND BURDENS THE GOVERNMENT WITH A CORRELATIVE DUTY TO
SUPPLY IT.  COURTS OF LAW EXIST FOR THE RESOLUTION OF SUCH RIGHT-DUTY
DISPUTES.  WHEN A PARTY IS SEEKING A JUDICIAL DETERMINATION THAT A
DEFENDANT OWES HIM AN AFFIRMATIVE DUTY, IT SEEMS CLEAR TO ME THAT HE
HAS STANDING TO LITIGATE THE ISSUE OF THE EXISTENCE VEL NON OF THIS
DUTY ONCE HE SHOWS THAT THE DEFENDANT HAS DECLINED TO HONOR HIS CLAIM. 
IF THE DUTY IN QUESTION INVOLVED THE PAYMENT OF A SUM OF MONEY, I
SUPPOSE THAT ALL WOULD AGREE THAT A PLAINTIFF ASSERTING THE DUTY WOULD
HAVE STANDING TO LITIGATE THE ISSUE OF HIS ENTITLEMENT TO THE MONEY
UPON A SHOWING THAT HE HAD NOT BEEN PAID.  I SEE NO REASON FOR A
DIFFERENT RESULT WHEN THE DEFENDANT IS A GOVERNMENT OFFICIAL AND THE
ASSERTED DUTY RELATES NOT TO THE PAYMENT OF MONEY, BUT TO THE
DISCLOSURE OF ITEMS OF INFORMATION. 

WHEN THE DUTY RELATES TO A VERY PARTICULARIZED AND EXPLICIT
PERFORMANCE BY THE ASSERTED OBLIGOR, SUCH AS THE PAYMENT OF MONEY OR
THE RENDITION OF SPECIFIC ITEMS OF INFORMATION, THERE IS NOT NECESSITY
TO RESORT TO ANY EXTENDED ANALYSIS, SUCH AS THE FLAST NEXUS TESTS, IN
ORDER TO FIND STANDING IN THE OBLIGEE.  UNDER SUCH CIRCUMSTANCES, THE
DUTY ITSELF, RUNNING AS IT DOES FROM THE DEFENDANT TO THE PLAINTIFF,
PROVIDES FULLY ADEQUATE ASSURANCE THAT THE PLAINTIFF IS NOT SEEKING TO
"EMPLOY A FEDERAL COURT AS A FORUM IN WHICH TO AIR HIS GENERALIZED
GRIEVANCES ABOUT THE CONDUCT OF GOVERNMENT OR THE ALLOCATION OF POWER
IN THE FEDERAL SYSTEM."  FLAST, SUPRA, AT 106.  IF SUCH A DUTY AROSE IN
THE CONTEXT OF A CONTRACT BETWEEN PRIVATE PARTIES, NO ONE WOULD SUGGEST
THAT THE OBLIGEE SHOULD BE BARRED FROM THE COURTS.  IT SEEMS TO ME THAT
WHEN THE ASSERTED DUTY IS, AS HERE, AS PARTICULARIZED, PALPABLE, AND
EXPLICIT AS THOSE WHICH COURTS REGULARLY RECOGNIZE IN PRIVATE CONTEXTS,
IT SHOULD MAKE NO DIFFERENCE THAT THE OBLIGOR IS THE GOVERNMENT AND THE
DUTY IS EMBODIED IN OUR ORGANIC LAW.  CERTAINLY AFTER UNITED STATES V.
SCRAP, 412 U.S. 669 (1973), IT DOES NOT MATTER THAT THOSE TO WHOM THE
DUTY IS OWED MAY BE MANY.  "(STANDING IS NOT TO BE DENIED SIMPLY
BECAUSE MANY PEOPLE SUFFER THE SAME INJURY."  ID., AT 687. 

FOR EXAMPLE, THE FREEDOM OF INFORMATION ACT CREATES A PRIVATE CAUSE
OF ACTION FOR THE BENEFIT OF PERSONS WHO HAVE REQUESTED CERTAIN RECORDS
FROM A PUBLIC AGENCY AND WHOSE REQUEST HAS BEEN DENIED.  5 U.S.C. 552
(A) (3).  THE STATUTE REQUIRES NOTHING MORE THAN A REQUEST AND THE
DENIAL OF THAT REQUEST AS A PREDICATE TO A SUIT IN THE DISTRICT COURT. 
THE PROVISION PURPORTS TO CREATE A DUTY IN THE GOVERNMENT AGENCY
INVOLVED TO MAKE THOSE RECORDS COVERED BY THE STATUTE AVAILABLE TO "ANY
PERSON."  CORRESPONDINGLY, IT CONFERS A RIGHT ON "ANY PERSON" TO
RECEIVE THOSE RECORDS, SUBJECT TO PUBLISHED REGULATIONS REGARDING TIME,
PLACE, FEES, AND PROCEDURES.  THE ANALOGY, OF COURSE, IS CLEAR.  IF THE
COURT IS CORRECT IN THIS CASE IN HOLDING THAT RICHARDSON LACKS STANDING
UNDER ART. III TO LITIGATE HIS CLAIM THAT THE STATEMENT AND ACCOUNT
CLAUSE IMPOSES AN AFFIRMATIVE DUTY THAT RUNS IN HIS FAVOR, IT WOULD
FOLLOW THAT A PERSON WHOSE REQUEST UNDER 5 U.S.C. 552 HAS BEEN DENIED
WOULD SIMILARLY LACK STANDING UNDER ART. III DESPITE THE CLEAR INTENT
OF CONGRESS TO CONFER A RIGHT OF ACTION TO COMPEL PRODUCTION OF THE
INFORMATION. 

THE ISSUE IN FLAST AND ITS PREDECESSOR, FROTHINGHAM, SUPRA, RELATED
SOLELY TO THE STANDING OF A FEDERAL TAXPAYER TO CHALLENGE ALLEGEDLY
UNCONSTITUTIONAL EXERCISES OF THE TAXING AND SPENDING POWER.  THE
QUESTION IN THOSE CASES WAS UNDER WHAT CIRCUMSTANCES A FEDERAL TAXPAYER
WHOSE INTEREST STEMMED SOLELY FROM THE TAXES HE PAID TO THE TREASURY
"(WOULD) BE DEEMED TO HAVE THE PERSONAL STAKE AND INTEREST THAT IMPART
THE NECESSARY CONCRETE ADVERSENESS TO SUCH LITIGATION SO THAT STANDING
CAN BE CONFERRED ON THE TAXPAYER QUA TAXPAYER CONSISTENT WITH THE
CONSTITUTIONAL LIMITATIONS OF ARTICLE III."  392 U.S.,AT 101.  BUT THE
"NEXUS"  CRITERIA DEVELOPED IN FLAST WERE NOT INTENDED AS A LITMUS TEST
TO RESOLVE ALL CONCEIVABLE STANDING QUESTIONS IN THE FEDERAL COURTS;
THEY WERE NO MORE THAN A RESPONSE TO THE PROBLEM OF TAXPAYER STANDING
TO CHALLENGE FEDERAL LEGISLATION ENACTED IN THE EXERCISE OF THE TAXING
AND SPENDING POWER OF CONGRESS. 

RICHARDSON IS NOT ASSERTING THAT A TAXING AND SPENDING PROGRAM
EXCEEDS CONGRESS' DELEGATED POWER OR VIOLATES A CONSTITUTIONAL
LIMITATION ON SUCH POWER.  INDEED, THE CONSTITUTIONAL PROVISION THAT
UNDERLIES HIS CLAIM DOES NOT PURPORT TO LIMIT THE POWER OF THE FEDERAL
GOVERNMENT IN ANY RESPECT, BUT, ACCORDING TO RICHARDSON, SIMPLY IMPOSES
AN AFFIRMATIVE DUTY ON THE GOVERNMENT WITH RESPECT TO ALL TAXPAYERS OR
CITIZEN-VOTERS OF THE REPUBLIC.  THUS, THE NEXUS ANALYSIS OF FLAST IS
SIMPLY NOT RELEVANT TO THE STANDING QUESTION RAISED IN THIS CASE. 

THE COURT ALSO SEEMS TO SAY THAT THIS CASE IS NOT JUSTICIABLE
BECAUSE IT INVOLVES A POLITICAL QUESTION.  ANTE, AT 179.  THIS IS AN
ISSUE THAT IS NOT BEFORE US.  THE "QUESTION PRESENTED" IN THE
GOVERNMENT'S PETITION FOR CERTIORARI WAS THE RESPONDENT'S "STANDING TO
CHALLENGE THE PROVISIONS OF THE CENTRAL INTELLIGENCE AGENCY ACT WHICH
PROVIDE THAT APPROPRIATIONS TO AND EXPENDITURES BY THAT AGENCY SHALL
NOT BE MADE PUBLIC, ON THE GROUND THAT SUCH SECRECY CONTRAVENES ARTICLE
I, SECTION 9, CLAUSE 7 OF THE CONSTITUTION."  /3/  THE ISSUE OF THE
JUSTICIABILITY OF THE RESPONDENT'S CLAIM WAS THUS NOT PRESENTED IN THE
PETITION FOR CERTIORARI, AND IT WAS NOT ARGUED IN THE BRIEFS.  /4/  AT
ORAL ARGUMENT, IN RESPONSE TO QUESTIONS ABOUT WHETHER THE GOVERNMENT
WAS ASKING THIS COURT TO RULE ON THE JUSTICIABILITY OF THE RESPONDENT'S
CLAIM, THE FOLLOWING COLLOQUY OCCURRED BETWEEN THE COURT AND THE
SOLICITOR GENERAL: 

     "MR. BORK:  . . . I THINK THE COURT OF APPEALS WAS CORRECT
THAT

  THE POLITICAL QUESTION ISSUE COULD BE RESOLVED MUCH MORE

  EFFECTIVELY IF WE WERE IN THE FULL MERITS OF THE CASE THAN WE CAN

  AT THIS STAGE.  I THINK STANDING IS ALL THAT REALLY CAN BE

  EFFECTIVELY DISCUSSED IN THE POSTURE OF THE CASE NOW. 

        *        *          *          * 

     "Q:  . . . (IF WE DISAGREE WITH YOU ON STANDING, THE
GOVERNMENT

  AGREES THEN THAT THE CASE SHOULD GO BACK TO THE DISTRICT COURT? 

     "MR. BORK:  I THINK THAT IS CORRECT." 

THE SOLICITOR GENERAL'S ANSWER WAS CLEARLY RIGHT.  "(WHEN STANDING
IS PLACED IN ISSUE IN A CASE, THE QUESTION IS WHETHER THE PERSON WHOSE
STANDING IS CHALLENGED IS A PROPER PARTY TO REQUEST AN ADJUDICATION OF
A PARTICULAR ISSUE AND NOT WHETHER THE ISSUE ITSELF IS JUSTICIABLE." 
FLAST, SUPRA, AT 99 - 100. 

ON THE MERITS, I PRESUME THAT THE GOVERNMENT'S POSITION WOULD BE
THAT THE STATEMENT AND ACCOUNT CLAUSE OF THE CONSTITUTION DOES NOT
IMPOSE AN AFFIRMATIVE DUTY UPON IT; THAT ANY SUCH DUTY DOES NOT IN AN
EVENT RUN TO RICHARDSON; THAT ANY SUCH DUTY IS SUBJECT TO LEGISLATIVE
QUALIFICATIONS, ONE OF WHICH IS APPLICABLE HERE; AND THAT THE QUESTION
INVOLVED IS POLITICAL AND THUS NOT JUSTICIABLE.  RICHARDSON MIGHT
ULTIMATELY BE THROWN OUT OF COURT ON ANY ONE OF THESE GROUNDS, OR SOME
OTHER.  BUT TO SAY THAT HE MIGHT ULTIMATELY LOSE HIS LAWSUIT CERTAINLY
DOES NOT MEAN THAT HE HAD NO STANDING TO BRING IT. 

FOR THE REASONS EXPRESSED, I BELIEVE THAT RICHARDSON HAD STANDING TO
BRING THIS ACTION.  ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS. 

/1/  "NO MONEY SHALL BE DRAWN FROM THE TREASURY, BUT IN CONSEQUENCE
OF APPROPRIATIONS MADE BY LAW; AND A REGULAR STATEMENT AND ACCOUNT OF
THE RECEIPTS AND EXPENDITURES OF ALL PUBLIC MONEY SHALL BE PUBLISHED
FROM TIME TO TIME." 

/2/  JAFFE, THE CITIZEN AS LITIGANT IN PUBLIC ACTIONS:  THE NON
HOHFELDIAN OR IDEALOGICAL PLAINTIFF, 116 U.PA.L.REV.  1033 (1968).  SEE
HOHFELD, SOME FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL
REASONING, 23 YALE L.J. 16 (1913). 

/3/  THE COURT HAS OFTEN INDICATED THAT, EXCEPT IN THE MOST
EXTRAORDINARY CIRCUMSTANCES, IT WILL NOT CONSIDER QUESTIONS THAT HAVE
NOT BEEN PRESENTED IN THE PETITION FOR CERTIORARI.  E.G., GENERAL
TALKING PICTURES CORP. V. WESTERN ELECTRIC CO., 304 U.S. 175, 177 - 178
(1938); NATIONAL LICORICE CO. V. NLRB, 309 U.S. 350, 357 N. 2 (1940);
IRVINE V. CALIFORNIA, 347 U.S. 128, 129 (1954) (OPINION OF JACKSON,
J.); MAZER V. STEIN, 347 U.S. 201, 206 N. 5 (1954). 

/4/  THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE ALTERNATIVE
GROUNDS OF LACK OF STANDING AND NONJUSTICIABILITY (BECAUSE THE COURT
THOUGHT THAT THE QUESTION INVOLVED WAS A POLITICAL ONE).  THE COURT OF
APPEALS REVERSED THE STANDING HOLDING, BUT CONCLUDED THAT THE
JUSTICIABILITY ISSUE WAS SO INTERTWINED WITH THE MERITS THAT IT SHOULD
AWAIT CONSIDERATION OF THE MERITS BY THE DISTRICT COURT ON REMAND.  THE
GOVERNMENT THEN BROUGHT THE CASE HERE ON PETITION FOR CERTIORARI. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR THE UNITED STATES ET AL.
ON THE BRIEF WERE FORMER SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WOOD, DEPUTY SOLICITOR GENERAL LACOVARA, HARRIET S. SHAPIRO,
WALTER H. FLEISCHER, AND WILLIAM D. APPLER. 

OSMOND K. FRAENKEL ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF, BURT NEUBORNE, AND JAMES R. KELLEY. 
..END :



















SCHLESINGER V. RESERVISTS COMMITTEE TO STOP THE WAR, 418 U.S. 208 


       SCHLESINGER, SECRETARY OF DEFENSE, ET AL. V. RESERVISTS

           COMMITTEE TO STOP THE WAR ET AL.

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 72 - 1188.  ARGUED JANUARY 14, 1974--DECIDED JUNE 25,

 1974; 162 U.S. APP. D. C. 19, 495 F.2D 1075, REVERSED

        AND REMANDED. 


    RESPONDENTS--AN ASSOCIATION OF PRESENT AND FORMER MEMBERS OF

  THE ARMED FORCES RESERVE OPPOSING UNITED STATES INVOLVEMENT IN

  VIETNAM, AND FIVE ASSOCIATION MEMBERS WHO WERE UNITED STATES

  CITIZENS AND TAXPAYERS--BROUGHT A CLASS ACTION ON BEHALF, INTER

  ALIA, OF ALL UNITED STATES CITIZENS AND TAXPAYERS AGAINST

  PETITIONERS, THE SECRETARY OF DEFENSE AND THREE SERVICE

  SECRETARIES, CHALLENGING THE RESERVE MEMBERSHIP OF MEMBERS OF

  CONGRESS AS VIOLATING THE INCOMPATIBILITY CLAUSE OF ART. I, 6,

  CL. 2, OF THE CONSTITUTION, WHICH PROVIDES THAT "NO PERSON

  HOLDING ANY OFFICE UNDER THE UNITED STATES, SHALL BE A MEMBER OF

  EITHER HOUSE DURING HIS CONTINUANCE IN OFFICE."  THE DISTRICT

 COURT HELD THAT RESPONDENTS HAD STANDING TO SUE AS CITIZENS BUT

  NOT AS TAXPAYERS, AND ON THE MERITS GRANTED PARTIAL RELIEF.  THE

  COURT OF APPEALS AFFIRMED.  HELD: 

1.  RESPONDENTS HAD NO STANDING TO SUE AS CITIZENS, SINCE THE

  CLAIMED NONOBSERVANCE OF THE INCOMPATIBILITY CLAUSE WHICH THEY

  ASSERT DEPRIVES CITIZENS OF THE FAITHFUL DISCHARGE OF THE

  LEGISLATIVE DUTIES OF RESERVIST MEMBERS OF CONGRESS IMPLICATES

  ONLY THE GENERALIZED INTEREST OF ALL CITIZENS IN CONSTITUTIONAL

  GOVERNANCE AND IS THUS MERELY AN ABSTRACT INJURY RATHER THAN THE

  CONCRETE INJURY THAT IS ESSENTIAL TO SATISFY ART. III'S "CASE OR

  CONTROVERSY"  REQUIREMENT.  PP. 216 - 227. 

     2.  RESPONDENTS ALSO LACKED STANDING TO SUE AS TAXPAYERS,
SINCE

  THEY FAILED TO ESTABLISH THE REQUIRED "LOGICAL NEXUS BETWEEN THE

  (TAXPAYER) STATUS ASSERTED AND THE CLAIM SOUGHT TO BE

  ADJUDICATED."  FLAST V. COHEN, 392 U.S. 83, 102.  PP. 227 - 228. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  STEWART, J.,
FILED A CONCURRING OPINION, POST, P. 228.  DOUGLAS, J., FILED A
DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED, POST, P. 229. 
BRENNAN, J., POST, P. 235, AND MARSHALL, J., POST, P. 238, FILED
DISSENTING OPINIONS. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI, SUB NOM. RICHARDSON V. RESERVISTS COMMITTEE
TO STOP THE WAR, 411 U.S. 947 (1973), TO REVIEW THE JUDGMENT OF THE
COURT OF APPEALS AFFIRMING, WITHOUT OPINION, THE DISTRICT COURT'S
PARTIAL SUMMARY JUDGMENT FOR RESPONDENTS DECLARING THAT "ARTICLE I,
INELIGIBLE TO HOLD A COMMISSION IN THE ARMED FORCES RESERVE DURING HIS
CONTINUANCE IN OFFICE."  RESERVISTS COMMITTEE TO STOP THE WAR V. LAIRD,
323 F.SUPP.  833, 843 (DC 1971).  WE HOLD THAT RESPONDENTS DO NOT HAVE
STANDING TO SUE AS CITIZENS OR TAXPAYERS.  THE JUDGMENT OF THE COURT OF
APPEALS IS THEREFORE REVERSED. 

        I 

ARTICLE I, 6, CL. 2, OF THE FEDERAL CONSTITUTION PROVIDES: 

     "NO SENATOR OR REPRESENTATIVE SHALL, DURING THE TIME FOR WHICH

HE WAS ELECTED, BE APPOINTED TO ANY CIVIL OFFICE UNDER THE

  AUTHORITY OF THE UNITED STATES, WHICH SHALL HAVE BEEN CREATED, OR

  THE EMOLUMENTS WHEREOF SHALL HAVE BEEN ENCREASED DURING SUCH

  TIME; AND NO PERSON HOLDING ANY OFFICE UNDER THE UNITED STATES,

  SHALL BE A MEMBER OF EITHER HOUSE DURING HIS CONTINUANCE IN

  OFFICE." 

THE CONSTITUTION THEREBY MAKES MEMBERS OF CONGRESS INELIGIBLE FOR
APPOINTMENT TO CERTAIN OFFICES THROUGH THE LIMITATION OF THE
INELIGIBILITY CLAUSE, AND PROHIBITS MEMBERS OF CONGRESS FROM HOLDING
OTHER OFFICES THROUGH THE LATTER LIMITATION, THE INCOMPATIBILITY
CLAUSE. 

RESPONDENTS, THE RESERVISTS COMMITTEE TO STOP THE WAR AND CERTAIN
NAMED MEMBERS THEREOF, /1/  CHALLENGED THE RESERVE MEMBERSHIP OF
MEMBERS OF CONGRESS /2/  AS BEING IN VIOLATION OF THE INCOMPATIBILITY
CLAUSE.  THEY COMMENCED A CLASS ACTION IN THE DISTRICT COURT AGAINST
PETITIONERS, THE SECRETARY OF DEFENSE AND THE THREE SERVICE
SECRETARIES, SEEKING (1) AN ORDER IN THE NATURE OF MANDAMUS DIRECTED TO
PETITIONERS REQUIRING THEM TO STRIKE FROM THE ROLLS OF THE RESERVES ALL
MEMBERS OF CONGRESS PRESENTLY THEREON, TO DISCHARGE ANY MEMBER OF THE
RESERVES WHO SUBSEQUENTLY BECAME A MEMBER OF CONGRESS, AND TO SEEK TO
RECLAIM FROM MEMBERS AND FORMER MEMBERS OF CONGRESS ANY RESERVE PAY
SAID MEMBERS RECEIVED WHILE SERVING AS MEMBERS OF CONGRESS, (2) A
PERMANENT INJUNCTION PREVENTING PETITIONERS FROM PLACING ON THE ROLLS
OF THE RESERVES ANY MEMBER OF CONGRESS WHILE SERVING IN CONGRESS, AND
(3) A DECLARATION THAT MEMBERSHIP IN THE RESERVES IS AN OFFICE UNDER
THE UNITED STATES PROHIBITED TO MEMBERS OF CONGRESS BY ART. I, 6, CL.
2, AND INCOMPATIBLE WITH MEMBERSHIP IN THE CONGRESS. 

RESPONDENTS SOUGHT THE ABOVE RELIEF ON BEHALF OF FOUR CLASSES OF
PERSONS.  THE COMMITTEE AND THE INDIVIDUAL RESPONDENTS SOUGHT TO
REPRESENT THE INTERESTS OF (1) ALL PERSONS OPPOSED TO UNITED STATES
MILITARY INVOLVEMENT IN VIETNAM AND PURPORTING TO USE LAWFUL MEANS,
INCLUDING COMMUNICATION WITH AND PERSUASION OF MEMBERS OF CONGRESS, TO
END THAT INVOLVEMENT.  THE INDIVIDUAL RESPONDENTS ALONE SOUGHT TO
REPRESENT THE INTERESTS OF (2) ALL OFFICERS AND ENLISTED MEMBERS OF THE
RESERVES WHO WERE NOT MEMBERS OF CONGRESS, (3) ALL TAXPAYERS OF THE
UNITED STATES, AND (4) ALL CITIZENS OF THE UNITED STATES.  THE
INTERESTS OF THESE FOUR CLASSES WERE ALLEGED TO BE ADVERSELY AFFECTED
BY THE RESERVE MEMBERSHIP OF MEMBERS OF CONGRESS IN VARIOUS WAYS. 

AS RELEVANT HERE, CITIZENS AND TAXPAYERS WERE ALLEGED IN
RESPONDENTS' COMPLAINT TO HAVE SUFFERED INJURY BECAUSE MEMBERS OF
CONGRESS HOLDING A RESERVE POSITION IN THE EXECUTIVE BRANCH WERE SAID
TO BE SUBJECT TO THE POSSIBILITY OF UNDUE INFLUENCE BY THE EXECUTIVE
BRANCH, /3/  IN VIOLATION OF THE CONCEPT OF THE INDEPENDENCE OF
CONGRESS IMPLICIT IN ART. I OF THE CONSTITUTION.  RESERVE MEMBERSHIP
WAS ALSO SAID TO PLACE UPON MEMBERS OF CONGRESS POSSIBLE INCONSISTENT
OBLIGATIONS WHICH MIGHT CAUSE THEM TO VIOLATE THEIR DUTY FAITHFULLY TO
PERFORM AS RESERVISTS OR AS MEMBERS OF CONGRESS.  RESERVE MEMBERSHIP BY
MEMBERS OF CONGRESS THUS, ACCORDING TO RESPONDENTS' COMPLAINT, 

"DEPRIVES OR MAY DEPRIVE THE INDIVIDUAL NAMED PLAINTIFFS AND ALL
OTHER CITIZENS AND TAXPAYERS OF THE UNITED STATES OF THE FAITHFUL
DISCHARGE BY MEMBERS OF CONGRESS WHO ARE MEMBERS OF THE RESERVES OF
THEIR DUTIES AS MEMBERS OF CONGRESS, TO WHICH ALL CITIZENS AND
TAXPAYERS ARE ENTITLED."  PET. FOR CERT. 46. 

PETITIONERS FILED A MOTION TO DISMISS RESPONDENTS' COMPLAINT ON THE
GROUND THAT RESPONDENTS LACKED STANDING TO BRING THE ACTION, AND
BECAUSE THE COMPLAINT FAILED TO STATE A CAUSE OF ACTION UPON WHICH
RELIEF COULD BE GRANTED.  THE LATTER GROUND WAS BASED UPON THE
CONTENTION THAT THE INCOMPATIBILITY CLAUSE SETS FORTH A QUALIFICATION
FOR MEMBERSHIP IN THE CONGRESS, U. S. CONST., ART. I, 5, CL. 1, NOT A
QUALIFICATION FOR A POSITION IN THE EXECUTIVE BRANCH.  THE POWER TO
JUDGE THAT QUALIFICATION WAS ASSERTED TO REST EXCLUSIVELY WITH
CONGRESS, NOT THE COURTS, UNDER POWELL V. MCCORMACK, 395 U.S. 486, 550
(1969). 

THE DISTRICT COURT CONCLUDED THAT IT FIRST HAD TO DETERMINE WHETHER
RESPONDENTS HAD STANDING TO BRING THE ACTION AND, WITHOUT CITATION TO
AUTHORITY, STATED: 

"IN RECENT YEARS THE SUPREME COURT HAS GREATLY EXPANDED THE CONCEPT
OF STANDING AND IN THIS CIRCUIT THE CONCEPT HAS NOW BEEN ALMOST
COMPLETELY ABANDONED."  323 F.SUPP., AT 839.  THE COURT THEN HELD THAT
OF THE FOUR CLASSES RESPONDENTS SOUGHT TO REPRESENT, "(ONLY THEIR
STATUS AS CITIZENS" GAVE THEM STANDING TO SUE IN THIS CASE.  ID., AT
840.  THE DISTRICT COURT DENIED STANDING TO RESPONDENTS AS RESERVISTS,
AS OPPONENTS OF OUR VIETNAM INVOLVEMENT, AND AS TAXPAYERS.  THE COURT
ACKNOWLEDGED THAT THERE WERE VERY FEW INSTANCES IN WHICH THE ASSERTION
OF "MERELY THE UNDIFFERENTIATED INTEREST OF CITIZENS," IBID., WOULD BE
SUFFICIENT, BUT WAS PERSUADED TO FIND THAT INTEREST SUFFICIENT HERE BY
SEVERAL CONSIDERATIONS IT FOUND PRESENT IN THE NATURE OF THE DISPUTE
BEFORE IT AND BY THE ASSERTED ABANDONMENT OF STANDING LIMITATIONS BY
THE COURT OF APPEALS, WHOSE DECISIONS WERE BINDING ON THE DISTRICT
COURT. 

IN RESPONSE TO PETITIONERS' CONTENTION THAT THE INCOMPATIBILITY
CLAUSE SETS FORTH A QUALIFICATION ONLY FOR MEMBERSHIP IN THE CONGRESS
ALONE MIGHT JUDGE, THE DISTRICT COURT CHARACTERIZED THE ISSUE AS
WHETHER RESPONDENTS PRESENTED A NONJUSTICIABLE "POLITICAL QUESTION,"
RESOLUTION OF WHICH BY THE TEXT OF THE CONSTITUTION WAS COMMITTED TO
THE CONGRESS UNDER BAKER V. CARR, 369 U.S. 186, 217 (1962).  THE COURT
HELD THAT THE FAILURE OF THE EXECUTIVE BRANCH TO REMOVE RESERVIST
MEMBERS OF CONGRESS FROM THEIR RESERVE POSITIONS WAS JUSTICIABLE. 

HAVING RESOLVED THE ISSUES OF STANDING AND POLITICAL QUESTION IN
FAVOR OF RESPONDENTS, THE DISTRICT COURT HELD ON THE MERITS THAT A
COMMISSION IN THE RESERVES IS AN "OFFICE UNDER THE UNITED STATES"
WITHIN THE MEANING OF THE INCOMPATIBILITY CLAUSE.  ON THE BASIS OF THE
FOREGOING, THE COURT IN ITS FINAL ORDER GRANTED PARTIAL SUMMARY
JUDGMENT FOR RESPONDENTS BY DECLARING THAT THE INCOMPATIBILITY CLAUSE
RENDERS A MEMBER OF CONGRESS INELIGIBLE, DURING HIS CONTINUANCE IN
OFFICE, TO HOLD A RESERVE "COMMISSION"; THE COURT DENIED SUCH PARTS OF
RESPONDENTS' MOTION FOR SUMMARY JUDGMENT WHICH SOUGHT A PERMANENT
INJUNCTION AND RELIEF IN THE NATURE OF MANDAMUS.  /4/  323 F.SUPP., AT
843. 

THE COURT OF APPEALS AFFIRMED THE JUDGMENT OF THE DISTRICT COURT IN
AN UNPUBLISHED OPINION "ON THE BASIS OF THE MEMORANDUM OPINION OF THE
DISTRICT COURT."  THE COURT OF APPEALS ADDED THAT IT WAS "ALSO OF THE
VIEW THAT (RESPONDENTS) HAVE THE REQUISITE STANDING AND THAT THEIR
CLAIM IS JUDICIALLY ENFORCEABLE UNDER THE RATIONALE OF" FLAST V. COHEN,
392 U.S. 83 (1968), AND BAKER V. CARR, SUPRA.  PETITIONERS PRESENT
THREE QUESTIONS FOR REVIEW:  (1) WHETHER RESPONDENTS HAVE STANDING,
"EITHER AS CITIZENS OR AS FEDERAL TAXPAYERS," TO BRING THIS CLAIM, (2)
WHETHER RESPONDENTS' CLAIM PRESENTS A "POLITICAL QUESTION" NOT SUBJECT
TO JUDICIAL REVIEW, AND (3) WHETHER "MEMBERSHIP" IN THE RESERVES
CONSTITUTES AN "OFFICE UNDER THE UNITED STATES" WITHIN THE MEANING OF
THE INCOMPATIBILITY CLAUSE.  PET. FOR CERT. 2. 

        II

        A 

IN FLAST V. COHEN, SUPRA, AT 95, THE COURT NOTED THAT THE CONCEPT OF
JUSTICIABILITY, WHICH EXPRESSES THE JURISDICTIONAL LIMITATIONS IMPOSED
UPON FEDERAL COURTS BY THE "CASE OR CONTROVERSY" REQUIREMENT OF ART.
III, EMBODIES BOTH THE STANDING AND POLITICAL QUESTION DOCTRINES UPON
WHICH PETITIONERS IN PART RELY.  EACH OF THESE DOCTRINES POSES A
DISTINCT AND SEPARATE LIMITATION, POWELL V. MCCORMACK, 395 U.S.,AT 512;
BAKER V. CARR, SUPRA, AT 198, SO THAT EITHER THE ABSENCE OF STANDING OR
THE PRESENCE OF A POLITICAL QUESTION SUFFICES TO PREVENT THE POWER OF
THE FEDERAL JUDICIARY FROM BEING INVOKED BY THE COMPLAINING PARTY.  THE
MORE SENSITIVE AND COMPLEX TASK OF DETERMINING WHETHER A PARTICULAR
ISSUE PRESENTS A POLITICAL QUESTION CAUSES COURTS, AS DID THE DISTRICT
COURT HERE, TO TURN INITIALLY, ALTHOUGH NOT INVARIABLY, /5/  TO THE
QUESTION OF STANDING TO SUE.  IN LIGHT OF THE DISTRICT COURT'S ACTION
WE TURN TO PETITIONERS' CONTENTION THAT RESPONDENTS LACKED STANDING TO
BRING THE SUIT.  OUR CONCLUSION THAT THE DISTRICT COURT ERRED IN
HOLDING THAT RESPONDENTS HAD STANDING TO SUE AS UNITED STATES CITIZENS,
BUT WAS CORRECT IN DENYING RESPONDENTS' STANDING AS TAXPAYERS,
ELIMINATES THE NEED TO CONSIDER THE OTHER QUESTIONS PRESENTED BY
PETITIONERS. 

THE DISTRICT COURT CONSIDERED STANDING AS TO EACH OF THE FOUR
CAPACITIES IN WHICH RESPONDENTS BROUGHT SUIT; IT REJECTED STANDING AS
TO THREE OF THE FOUR, HOLDING THAT RESPONDENTS COULD SUE ONLY AS
CITIZENS.  THE COURT OF APPEALS'  JUDGMENT OF AFFIRMANCE, BASED SOLELY
UPON THE OPINION OF THE DISTRICT COURT, DID NOT ALTER THE DISTRICT
COURT'S RULING ON STANDING.  THE STANDING QUESTION PRESENTED IN THE
PETITION FOR CERTIORARI IS ADDRESSED TO THE DISTRICT COURT'S HOLDING ON
CITIZEN STANDING AND SEEKS TO ADD THE QUESTION WHETHER RESPONDENTS ALSO
HAD STANDING AS TAXPAYERS.  /6/  RESPONDENTS DO NOT CONTEND THAT THE
DISTRICT COURT ERRED IN DENYING STANDING TO THEM IN THE OTHER TWO
CAPACITIES IN WHICH THEY SOUGHT TO PROCEED, I. E., AS OPPONENTS OF
AMERICAN MILITARY INVOLVEMENT IN VIETNAM, AND AS RESERVISTS.  WE
THEREFORE PROCEED TO CONSIDERATION OF RESPONDENTS'  STANDING ONLY AS
CITIZENS AND TAXPAYERS. 

        B

        CITIZEN STANDING 

TO HAVE STANDING TO SUE AS A CLASS REPRESENTATIVE IT IS ESSENTIAL
THAT A PLAINTIFF MUST BE A PART OF THAT CLASS, THAT IS, HE MUST POSSESS
THE SAME INTEREST AND SUFFER THE SAME INJURY SHARED BY ALL MEMBERS OF
THE CLASS HE REPRESENTS.  INDIANA EMPLOYMENT DIVISION V. BURNEY, 409
U.S. 540 (1973); BAILEY V. PATTERSON, 369 U.S. 31 (1962).  IN GRANTING
RESPONDENTS STANDING TO SUE AS REPRESENTATIVES OF THE CLASS OF ALL
UNITED STATES CITIZENS, THE DISTRICT COURT THEREFORE NECESSARILY--AND
CORRECTLY--CHARACTERIZED RESPONDENTS'  INTEREST AS "UNDIFFERENTIATED"
FROM THAT OF ALL OTHER CITIZENS. 

THE ONLY INTEREST ALL CITIZENS SHARE IN THE CLAIM ADVANCED BY
RESPONDENTS IS ONE WHICH PRESENTS INJURY IN THE ABSTRACT.  RESPONDENTS
SEEK TO HAVE THE JUDICIAL BRANCH COMPEL THE EXECUTIVE BRANCH TO ACT IN
CONFORMITY WITH THE INCOMPATIBILITY CLAUSE, AN INTEREST SHARED BY ALL
CITIZENS.  THE VERY LANGUAGE OF RESPONDENTS'  COMPLAINT, SUPRA, AT 212,
REVEALS THAT IT IS NOTHING MORE THAN A MATTER OF SPECULATION WHETHER
THE CLAIMED NONOBSERVANCE OF THAT CLAUSE DEPRIVES CITIZENS OF THE
FAITHFUL DISCHARGE OF THE LEGISLATIVE DUTIES OF RESERVIST MEMBERS OF
CONGRESS.  AND THAT CLAIMED NONOBSERVANCE, STANDING ALONE, WOULD
ADVERSELY AFFECT ONLY THE GENERALIZED INTEREST OF ALL CITIZENS IN
CONSTITUTIONAL GOVERNANCE, AND THAT IS AN ABSTRACT INJURY.  /7/  THE
COURT HAS PREVIOUSLY DECLINED TO TREAT "GENERALIZED GRIEVANCES" ABOUT
THE CONDUCT OF GOVERNMENT AS A BASIS FOR TAXPAYER STANDING.  FLAST V.
COHEN, 392 U.S., AT 106.  WE CONSIDER NOW WHETHER A CITIZEN HAS
STANDING TO SUE UNDER SUCH A GENERALIZED COMPLAINT. 

OUR ANALYSIS BEGINS WITH BAKER V. CARR, 369 U.S. 186 (1962), WHERE
THE COURT STATED THAT THE GIST OF THE INQUIRY MUST BE WHETHER THE
COMPLAINING PART HAS 

"ALLEGED SUCH A PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY AS
TO ASSURE THAT CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF
ISSUES UPON WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF
DIFFICULT CONSTITUTIONAL QUESTIONS."  ID., AT 204.  ALTHOUGH DEALING
WITH A CASE OF CLAIMED TAXPAYER STANDING, FLAST V. COHEN, SUPRA, GAVE
FURTHER MEANING TO THE NEED FOR A "PERSONAL STAKE" IN NOTING THAT IT
WAS MEANT TO ASSURE THAT THE COMPLAINANT SEEKING TO ADJUDICATE HIS
CLAIM WAS THE "PROPER PARTY" TO PRESENT THE CLAIM "IN AN ADVERSARY
CONTEXT AND IN A FORM HISTORICALLY VIEWED AS CAPABLE OF JUDICIAL
RESOLUTION."  392 U.S.,AT 100, 101.  IN THE CIRCUMSTANCES OF FLAST, THE
COURT HELD THAT THE TAXPAYER-COMPLAINANT BEFORE IT HAD ESTABLISHED A
RELATIONSHIP BETWEEN HIS STATUS AS A TAXPAYER AND HIS CLAIM UNDER THE
TAXING AND SPENDING CLAUSE SUFFICIENT TO GIVE ASSURANCE 

"THAT THE QUESTIONS WILL BE FRAMED WITH THE NECESSARY SPECIFICITY,
THAT THE ISSUES WILL BE CONTESTED WITH THE NECESSARY ADVERSENESS AND
THAT THE LITIGATION WILL BE PURSUED WITH THE NECESSARY VIGOR TO ASSURE
THAT THE CONSTITUTIONAL CHALLENGE WILL BE MADE IN A FORM TRADITIONALLY
THOUGHT TO BE CAPABLE OF JUDICIAL RESOLUTION."  ID., AT 106.  WHILE
FLAST NOTED THAT THE "CASE OR CONTROVERSY" LIMITATION ON THE FEDERAL
JUDICIAL POWER FOUND IN ART. III IS A "BLEND OF CONSTITUTIONAL
REQUIREMENTS AND POLICY CONSIDERATIONS," ID., AT 97, THE COURT,
SUBSEQUENTLY, IN THE CONTEXT OF JUDICIAL REVIEW OF REGULATORY AGENCY
ACTION HELD THAT WHATEVER ELSE THE "CASE OR CONTROVERSY" REQUIREMENT
EMBODIED, ITS ESSENCE IS A REQUIREMENT OF "INJURY IN FACT." 
ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS, INC. V. CAMP, 397
U.S. 150, 152 (1970).  ALTHOUGH WE THERE NOTED THAT THE CATEGORIES OF
JUDICIALLY COGNIZABLE INJURY WERE BEING BROADENED, ID., AT 154, WE HAVE
MORE RECENTLY STRESSED THAT THE BROADENING OF CATEGORIES "IS A
DIFFERENT MATTER FROM ABANDONING THE REQUIREMENT THAT THE PARTY SEEKING
REVIEW MUST HIMSELF HAVE SUFFERED AN INJURY."  SIERRA CLUB V. MORTON,
405 U.S. 727, 738 (1972).  AND, IN DEFINING THE NATURE OF THAT INJURY,
WE HAVE ONLY RECENTLY STATED FLATLY:  "ABSTRACT INJURY IS NOT ENOUGH." 
O'SHEA V. LITTLETON, 414 U.S. 488, 494 (1974). 

EX PARTE LEVITT, 302 U.S. 633 (1937), WAS THE ONLY OTHER OCCASION IN
WHICH THE COURT FACED A QUESTION UNDER ART. I, 6, CL. 2, ALTHOUGH THAT
CHALLENGE WAS MADE UNDER THE INELIGIBILITY CLAUSE, NOT THE
INCOMPATIBILITY CLAUSE INVOLVED HERE.  THERE A PETITION WAS FILED IN
THIS COURT SEEKING AN ORDER TO SHOW CAUSE WHY ONE OF THE JUSTICES
SHOULD NOT BE DISQUALIFIED TO SERVE AS AN ASSOCIATE JUSTICE.  THE
PETITION ASSERTED THAT THE APPOINTMENT AND CONFIRMATION OF THE JUSTICE
IN AUGUST 1937 WAS UNLAWFUL BECAUSE THE ACT OF MARCH 1, 1937,
PERMITTING JUSTICES TO RETIRE AT FULL SALARY AFTER A PERIOD OF
SPECIFIED SERVICE, THEREBY INCREASED THE EMOLUMENTS OF THE OFFICE AND
THAT THE STATUTE WAS ENACTED WHILE THE CHALLENGED JUSTICE WAS A
SENATOR.  THE APPOINTMENT OF THE JUSTICE BY THE PRESIDENT AND HIS
CONFIRMATION BY THE SENATE WERE THUS SAID TO VIOLATE THE INELIGIBILITY
CLAUSE WHICH PROVIDES: 

     "NO SENATOR OR REPRESENTATIVE SHALL, DURING THE TIME FOR WHICH

  HE WAS ELECTED, BE APPOINTED TO ANY CIVIL OFFICE UNDER THE

  AUTHORITY OF THE UNITED STATES . . . THE EMOLUMENTS WHEREOF SHALL

  HAVE BEEN ENCREASED DURING SUCH TIME . . . ." 

THE COURT HELD: 

    "THE MOTION PAPERS DISCLOSE NO INTEREST UPON THE PART OF THE

  PETITIONER OTHER THAN THAT OF A CITIZEN AND A MEMBER OF THE BAR

  OF THIS COURT.  THAT IS INSUFFICIENT.  IT IS AN ESTABLISHED

  PRINCIPLE THAT TO ENTITLE A PRIVATE INDIVIDUAL TO INVOKE THE

  JUDICIAL POWER TO DETERMINE THE VALIDITY OF EXECUTIVE OR

  LEGISLATIVE ACTION HE MUST SHOW THAT HE HAS SUSTAINED OR IS

  IMMEDIATELY IN DANGER OF SUSTAINING A DIRECT INJURY AS THE RESULT

  OF THAT ACTION AND IT IS NOT SUFFICIENT THAT HE HAS MERELY A

  GENERAL INTEREST COMMON TO ALL MEMBERS OF THE PUBLIC."  302

  U.S.,AT 634.  /8/ 

THE COURT HAS TODAY RECOGNIZED THE CONTINUED VITALITY OF LEVITT, /9/
UNITED STATES V. RICHARDSON, ANTE, AT 176 - 179; SEE ALSO LAIRD V.
TATUM, 408 U.S. 1, 13 (1972).  WE REAFFIRM LEVITT IN HOLDING THAT
STANDING TO SUE MAY NOT BE PREDICATED UPON AN INTEREST OF THE KIND
ALLEGED HERE WHICH IS HELD IN COMMON BY ALL MEMBERS OF THE PUBLIC,
BECAUSE OF THE NECESSARILY ABSTRACT NATURE OF THE INJURY ALL CITIZENS
SHARE.  CONCRETE INJURY, WHETHER ACTUAL OR THREATENED, IS THAT
INDISPENSABLE ELEMENT OF A DISPUTE WHICH SERVES IN PART TO CAST IT IN A
FORM TRADITIONALLY CAPABLE OF JUDICIAL RESOLUTION.  IT ADDS THE
ESSENTIAL DIMENSION OF SPECIFICITY TO THE DISPUTE BY REQUIRING THAT THE
COMPLAINING PARTY HAVE SUFFERED A PARTICULAR INJURY CAUSED BY THE
ACTION CHALLENGED AS UNLAWFUL.  THIS PERSONAL STAKE IS WHAT THE COURT
HAS CONSISTENTLY HELD ENABLES A COMPLAINANT AUTHORITATIVELY TO PRESENT
TO A COURT A COMPLETE PERSPECTIVE UPON THE ADVERSE CONSEQUENCES FLOWING
FROM THE SPECIFIC SET OF FACTS UNDERGIRDING HIS GRIEVANCE.  SUCH
AUTHORITATIVE PRESENTATIONS ARE AN INTEGRAL PART OF THE JUDICIAL
PROCESS, FOR A COURT MUST RELY ON THE PARTIES' TREATMENT OF THE FACTS
AND CLAIMS BEFORE IT TO DEVELOP ITS RULES OF LAW.  /10/  ONLY CONCRETE
INJURY PRESENTS THE FACTUAL CONTEXT WITHIN WHICH A COURT, AIDED BY
PARTIES WHO ARGUE WITHIN THE CONTEXT, IS CAPABLE OF MAKING DECISIONS. 

MOREOVER, WHEN A COURT IS ASKED TO UNDERTAKE CONSTITUTIONAL
ADJUDICATION, THE MOST IMPORTANT AND DELICATE OF ITS RESPONSIBILITIES,
THE REQUIREMENT OF CONCRETE INJURY FURTHER SERVES THE FUNCTION OF
INSURING THAT SUCH ADJUDICATION DOES NOT TAKE PLACE UNNECESSARILY. 
THIS PRINCIPLE IS PARTICULARLY APPLICABLE HERE, WHERE RESPONDENTS SEEK
AN INTERPRETATION OF A CONSTITUTIONAL PROVISION WHICH HAS NEVER BEFORE
BEEN CONSTRUED BY THE FEDERAL COURTS.  FIRST, CONCRETE INJURY REMOVES
FROM THE REALM OF SPECULATION WHETHER THERE IS A REAL NEED TO EXERCISE
THE POWER OF JUDICIAL REVIEW IN ORDER TO PROTECT THE INTERESTS OF THE
COMPLAINING PARTY. 

"THE DESIRE TO OBTAIN (SWEEPING RELIEF) CANNOT BE ACCEPTED AS A
SUBSTITUTE FOR COMPLIANCE WITH THE GENERAL RULE THAT THE COMPLAINANT
MUST PRESENT FACTS SUFFICIENT TO SHOW THAT HIS INDIVIDUAL NEED REQUIRES
THE REMEDY FOR WHICH HE ASKS."  MCCABE V. ATCHISON, T. & S. F. R. CO.,
235 U.S. 151, 164 (1914).  SECOND, THE DISCRETE FACTUAL CONTEXT WITHIN
WHICH THE CONCRETE INJURY OCCURRED OR IS THREATENED INSURES THE FRAMING
OF RELIEF NO BROADER THAN REQUIRED BY THE PRECISE FACTS TO WHICH THE
COURT'S RULING WOULD BE APPLIED.  THIS IS ESPECIALLY IMPORTANT WHEN THE
RELIEF SOUGHT PRODUCES A CONFRONTATION WITH ONE OF THE COORDINATE
BRANCHES OF THE GOVERNMENT; HERE THE RELIEF SOUGHT WOULD, IN PRACTICAL
EFFECT, BRING ABOUT CONFLICT WITH TWO COORDINATE BRANCHES. 

TO PERMIT A COMPLAINANT WHO HAS NO CONCRETE INJURY TO REQUIRE A
COURT TO RULE ON IMPORTANT CONSTITUTIONAL ISSUES IN THE ABSTRACT WOULD
CREATE THE POTENTIAL FOR ABUSE OF THE JUDICIAL PROCESS, DISTORT THE
ROLE OF THE JUDICIARY IN ITS RELATIONSHIP TO THE EXECUTIVE AND THE
LEGISLATURE AND OPEN THE JUDICIARY TO AN ARGUABLE CHARGE OF PROVIDING
"GOVERNMENT BY INJUNCTION." 

"THE POWERS OF THE FEDERAL JUDICIARY WILL BE ADEQUATE FOR THE GREAT
BURDENS PLACED UPON THEM ONLY IF THEY ARE EMPLOYED PRUDENTLY, WITH
RECOGNITION OF THE STRENGTHS AS WELL AS THE HAZARDS THAT GO WITH OUR
KIND OF REPRESENTATIVE GOVERNMENT."  FLAST V. COHEN, 392 U.S.,AT 131
(HARLAN, J., DISSENTING).  /11/ 

OUR CONCLUSION THAT THERE IS NO CITIZEN STANDING HERE, APART FROM
BEING IN ACCORD WITH ALL OTHER FEDERAL COURTS OF APPEALS THAT HAVE
CONSIDERED THE QUESTION, UNTIL THE COURT OF APPEALS' HOLDING NOW UNDER
REVIEW, /12/  IS ALSO CONSISTENT WITH THE RECENT HOLDINGS OF THIS
COURT.  IT IS ONE THING FOR A COURT TO HEAR AN INDIVIDUAL'S COMPLAINT
THAT CERTAIN SPECIFIC GOVERNMENT ACTION WILL CAUSE THAT PERSON PRIVATE
COMPETITIVE INJURY, ASSOCIATION OF DATA PROCESSING SERVICE
ORGANIZATIONS, INC. V. CAMP, 397 U.S. 150 (1970), OR A COMPLAINT THAT
INDIVIDUAL ENJOYMENT OF CERTAIN NATURAL RESOURCES HAS BEEN IMPAIRED BY
SUCH ACTION, UNITED STATES V. SCRAP, 412 U.S. 669, 687 (1973), BUT IT
IS ANOTHER MATTER TO ALLOW A CITIZEN TO CALL ON THE COURTS TO RESOLVE
ABSTRACT QUESTIONS.  /13/  THE FORMER PROVIDES THE SETTING FOR A
FOCUSED CONSIDERATION OF A CONCRETE INJURY.  IN THE LATTER, ALTHOUGH
ALLEGATIONS ASSERT AN ARGUABLE CONFLICT WITH SOME LIMITATION OF THE
CONSTITUTION, IT CAN BE ONLY A MATTER OF SPECULATION WHETHER THE
CLAIMED VIOLATION HAS CAUSED CONCRETE INJURY TO THE PARTICULAR
COMPLAINANT. 

FINALLY, THE SEVERAL CONSIDERATIONS ADVANCED BY THE DISTRICT COURT
IN SUPPORT OF RESPONDENTS' STANDING AS CITIZENS DO NOT MILITATE AGAINST
OUR CONCLUSION THAT IT WAS ERROR TO GRANT STANDING TO RESPONDENTS AS
CITIZENS.  FIRST, THE DISTRICT COURT ACKNOWLEDGED THAT ANY INJURY
RESULTING FROM THE RESERVIST STATUS OF MEMBERS OF CONGRESS WAS
HYPOTHETICAL, BUT STRESSED THAT THE INCOMPATIBILITY CLAUSE WAS DESIGNED
TO PROHIBIT SUCH POTENTIAL FOR INJURY.  /14/  323 F.SUPP.,AT 840.  THIS
RATIONALE FAILS, HOWEVER, TO COMPENSATE FOR THE RESPONDENTS' FAILURE TO
PRESENT A CLAIM UNDER THAT CLAUSE WHICH ALLEGES CONCRETE INJURY.  THE
CLAIMS OF RESPONDENTS HERE, LIKE THE CLAIM UNDER THE INELIGIBILITY
CLAUSE IN LEVITT, SUPRA, WOULD REQUIRE COURTS TO DEAL WITH A DIFFICULT
AND SENSITIVE ISSUE OF CONSTITUTIONAL ADJUDICATION ON THE COMPLAINT OF
ONE WHO DOES NOT ALLEGE "A PERSONAL STAKE IN THE OUTCOME OF THE
CONTROVERSY."  BAKER V. CARR, 369 U.S.,AT 204.  TO SUPPORT STANDING
THERE MUST BE CONCRETE INJURY IN A FORM WHICH ASSURES "THE NECESSARY
SPECIFICITY"  CALLED FOR BY FLAST, 392 U.S.,AT 106, AND "THAT CONCRETE
ADVERSENESS . . . UPON WHICH THE COURT SO LARGELY DEPENDS FOR
ILLUMINATION OF DIFFICULT CONSTITUTIONAL QUESTIONS."  BAKER V. CARR,
SUPRA, AT 204.  STANDING WAS THUS FOUND BY PREMATURE EVALUATION OF THE
MERITS OF RESPONDENTS' COMPLAINT.  /15/

THE DISTRICT COURT NEXT ACKNOWLEDGED THIS COURT'S LONGSTANDING
RELUCTANCE TO ENTERTAIN "GENERALIZED GRIEVANCES ABOUT THE CONDUCT OF
GOVERNMENT,"  FLAST V. COHEN, 392 U.S.,AT 106, BUT DISTINGUISHED
RESPONDENTS' COMPLAINT FROM SUCH GRIEVANCES BY CHARACTERIZING THE
INCOMPATIBILITY CLAUSE AS "PRECISE (AND) SELF-OPERATIVE."  323
F.SUPP.,AT 840.  EVEN ACCEPTING THAT CHARACTERIZATION OF THE CLAUSE IT
IS NOT AN ADEQUATE SUBSTITUTE FOR THE JUDICIALLY COGNIZABLE INJURY NOT
PRESENT HERE.  MOREOVER, THAT CHARACTERIZATION RESTED, AS DID THE
PRECEDING CHARACTERIZATION, ON AN INTERPRETATION OF THE CLAUSE BY WAY
OF THE COURT'S PRELIMINARY APPRAISAL OF THE MERITS OF RESPONDENTS'
CLAIM BEFORE STANDING WAS FOUND.  IN ANY EVENT, THE INELIGIBILITY
CLAUSE INVOLVED IN LEVITT, SUPRA, IS NO LESS "PRECISE (AND) SELF
OPERATIVE" THAN THE INCOMPATIBILITY CLAUSE. 

THE DISTRICT COURT FURTHER RELIED ON THE FACT THAT THE ADVERSE
PARTIES SHARPLY CONFLICTED IN THEIR INTERESTS AND VIEWS AND WERE
SUPPORTED BY ABLE BRIEFS AND ARGUMENTS.  ID., AT 841.  WE HAVE NO DOUBT
ABOUT THE SINCERITY OF RESPONDENTS'  STATED OBJECTIVES AND THE DEPTH OF
THEIR COMMITMENT TO THEM.  BUT THE ESSENCE OF STANDING 

"IS NOT A QUESTION OF MOTIVATION BUT OF POSSESSION OF THE REQUISITE
. . . INTEREST THAT IS, OR IS THREATENED TO BE, INJURED BY THE
UNCONSTITUTIONAL CONDUCT."  DOREMUS V. BOARD OF EDUCATION, 342 U.S.
429, 435 (1952).  THIS SAME THEME AS TO THE INADEQUACY OF MOTIVATION TO
SUPPORT STANDING IS SUGGESTED IN THE COURT'S OPINION IN SIERRA CLUB,
SUPRA: 

"BUT A MERE 'INTEREST IN A PROBLEM,' NO MATTER HOW LONGSTANDING THE
INTEREST AND NO MATTER HOW QUALIFIED THE ORGANIZATION IS IN EVALUATING
THE PROBLEM, IS NOT SUFFICIENT BY ITSELF TO RENDER THE ORGANIZATION
'ADVERSELY AFFECTED' OR 'AGGRIEVED' WITHIN THE MEANING OF THE APA." 
405 U.S.,AT 739.  RESPONDENTS' MOTIVATION HAS INDEED BROUGHT THEM
SHARPLY INTO CONFLICT WITH PETITIONERS, BUT AS THE COURT HAS NOTED,
MOTIVATION IS NOT A SUBSTITUTE FOR THE ACTUAL INJURY NEEDED BY THE
COURTS AND ADVERSARIES TO FOCUS LITIGATION EFFORTS AND JUDICIAL
DECISIONMAKING.  MOREOVER, THE EVALUATION OF THE QUALITY OF THE
PRESENTATION ON THE MERITS WAS A RETROSPECTIVE JUDGMENT THAT COULD HAVE
PROPERLY BEEN ARRIVED AT ONLY AFTER STANDING HAD BEEN FOUND SO AS TO
PERMIT THE COURT TO CONSIDER THE MERITS.  A LOGICAL COROLLARY TO THIS
APPROACH WOULD BE THE MANIFESTLY UNTENABLE VIEW THAT THE INADEQUACY OF
THE PRESENTATION ON THE MERITS WOULD BE AN APPROPRIATE BASIS FOR
DENYING STANDING. 

FURTHERMORE, TO HAVE REACHED THE CONCLUSION THAT RESPONDENTS'
INTERESTS AS CITIZENS WERE MEANT TO BE PROTECTED BY THE INCOMPATIBILITY
CLAUSE BECAUSE THE PRIMARY PURPOSE OF THE CLAUSE WAS TO INSURE
INDEPENDENCE OF EACH OF THE BRANCHES OF THE FEDERAL GOVERNMENT,
SIMILARLY INVOLVED AN APPRAISAL OF THE MERITS BEFORE THE ISSUE OF
STANDING WAS RESOLVED.  ALL CITIZENS, OF COURSE, SHARE EQUALLY AN
INTEREST IN THE INDEPENDENCE OF EACH BRANCH OF GOVERNMENT.  IN SOME
FASHION, EVERY PROVISION OF THE CONSTITUTION WAS MEANT TO SERVE THE
INTERESTS OF ALL.  SUCH A GENERALIZED INTEREST, HOWEVER, IS TOO
ABSTRACT TO CONSTITUTE A "CASE OR CONTROVERSY" APPROPRIATE FOR JUDICIAL
RESOLUTION.  /16/  THE PROPOSITION THAT ALL CONSTITUTIONAL PROVISIONS
ARE ENFORCEABLE BY ANY CITIZEN SIMPLY BECAUSE CITIZENS ARE THE ULTIMATE
BENEFICIARIES OF THOSE PROVISIONS HAS NO BOUNDARIES. 

CLOSELY LINKED TO THE IDEA THAT GENERALIZED CITIZEN INTEREST IS A
SUFFICIENT BASIS FOR STANDING WAS THE DISTRICT COURT'S OBSERVATION THAT
IT WAS NOT IRRELEVANT THAT IF RESPONDENTS COULD NOT OBTAIN JUDICIAL
REVIEW OF PETITIONERS'  ACTION, "THEN AS A PRACTICAL MATTER NO ONE
CAN."  OUR SYSTEM OF GOVERNMENT LEAVES MANY CRUCIAL DECISIONS TO THE
POLITICAL PROCESSES.  THE ASSUMPTION THAT IF RESPONDENTS HAVE NO
STANDING TO SUE, NO ONE WOULD HAVE STANDING, IS NOT A REASON TO FIND
STANDING.  SEE UNITED STATES V. RICHARDSON, ANTE, AT 179. 

        C

        TAXPAYER STANDING 

CONSIDERATION OF WHETHER RESPONDENTS HAVE STANDING TO SUE AS
TAXPAYERS RAISES A DIFFERENT QUESTION FROM WHETHER THEY MAY SUE AS
CITIZENS.  FLAST V. COHEN, SUPRA, ESTABLISHED THAT STATUS AS A TAXPAYER
CAN, UNDER CERTAIN LIMITED CIRCUMSTANCES, SUPPLY THE PERSONAL STAKE
ESSENTIAL TO STANDING.  THERE, THE COURT HELD THAT, IN ORDER TO ENSURE
THE NECESSARY PERSONAL STAKE, THERE MUST BE "A LOGICAL NEXUS BETWEEN
THE (TAXPAYER) STATUS ASSERTED AND THE CLAIM SOUGHT TO BE ADJUDICATED,"
392 U.S.,AT 102.  IN FLAST, THE COURT DETERMINED THAT THE TAXPAYER
DEMONSTRATED SUCH A "LOGICAL NEXUS" BECAUSE, (1) HE CHALLENGED THE
EXERCISE OF "CONGRESSIONAL POWER UNDER THE TAXING AND SPENDING CLAUSE
OF ART. I, 8 . . ."  AND (2) "THE CHALLENGED ENACTMENT EXCEEDED)
SPECIFIC CONSTITUTIONAL LIMITATIONS IMPOSED UPON THE EXERCISE OF THE
CONGRESSIONAL TAXING AND SPENDING POWER" UNDER ART. I, 8.  ID., AT 102
103. 

HERE, THE DISTRICT COURT, APPLYING THE FLAST HOLDING, DENIED
RESPONDENTS'  STANDING AS TAXPAYERS FOR FAILURE TO SATISFY THE NEXUS
TEST.  WE AGREE WITH THAT CONCLUSION SINCE RESPONDENTS DID NOT
CHALLENGE AN ENACTMENT UNDER ART. I, 8, BUT RATHER THE ACTION OF THE
EXECUTIVE BRANCH IN PERMITTING MEMBERS OF CONGRESS TO MAINTAIN THEIR
RESERVE STATUS.  /17/     ACCORDINGLY, THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED, AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE COMMITTEE, LOCATED IN CALIFORNIA, IS A NATIONAL
UNINCORPORATED ASSOCIATION OF PRESENT AND FORMER OFFICERS AND ENLISTED
MEMBERS OF THE RESERVES, ORGANIZED FOR THE PURPOSE OF OPPOSING THE
MILITARY INVOLVEMENT OF THE UNITED STATES IN VIETNAM AND OF USING ALL
LAWFUL MEANS TO END THAT INVOLVEMENT, INCLUDING EFFORTS BY ITS MEMBERS
INDIVIDUALLY TO TAKE ALL STEPS NECESSARY AND APPROPRIATE TO END THAT
INVOLVEMENT.  THE FIVE INDIVIDUAL RESPONDENTS WERE ALL MEMBERS OF THE
COMMITTEE, RESIDENTS OF CALIFORNIA, AND UNITED STATES CITIZENS AND
TAXPAYERS.  AT THE TIME SUIT WAS FILED, FOUR OF THE INDIVIDUALS WERE IN
ACTIVE READY RESERVE STATUS; THE STATUS OF THE FIFTH, THEN THE
COMMITTEE COCHAIRMAN, WAS UNSPECIFIED. 

/2/  AT THE TIME SUIT WAS FILED, 130 MEMBERS OF THE 91ST CONGRESS
WERE ALSO MEMBERS OF THE RESERVES, WHICH ARE DIVIDED INTO READY,
STANDBY, AND RETIRED COMPONENTS.  BY THE END OF THE 92ND CONGRESS, 119
MEMBERS WERE RESERVISTS.  THE 93RD CONGRESS HAS SEEN THE NUMBER OF ITS
RESERVISTS REDUCED TO 107, ALL BUT ONE OF WHOM ARE COMMISSIONED
OFFICERS, APP. 5, AND NONE OF WHOM CAN OCCUPY THE READY RESERVE STATUS
OF THE INDIVIDUAL RESPONDENTS, SUPRA, N. 1.  DEPT. OF DEFENSE DIRECTIVE
1200.7 V, C. 2 (JULY 2, 1970); 32 CFR 125.4 (C)(2).  OF THE 107, 20
(INCLUDING THE ONE ENLISTED MAN) ARE IN THE ACTIVE, AND 12 IN THE
INACTIVE, STANDBY RESERVE; AND 73 ARE IN THE RETIRED RESERVE, 16 OF
WHOM RECEIVE RETIREMENT PAY.  TWO OTHER MEMBERS ARE IN THE ARMY
NATIONAL GUARD, AND THUS IN THE READY RESERVE, 10 U.S.C. 269 (B), BUT
SINCE THE GOVERNORS OF THE VARIOUS STATES CONTROL APPOINTMENTS TO
OFFICES IN THE GUARD, PETITIONERS COULD NOT PROVIDE RELIEF REGARDING
SUCH RESERVISTS.  THE JUDGMENT OF THE DISTRICT COURT DID NOT THEREFORE
EXTEND TO THIS CATEGORY OF RESERVIST.  323 F.SUPP.  833, 838 N. 3 (DC
1971). 

/3/  RESPONDENTS APPEAR TO HAVE HAD REFERENCE IN PART TO PRESSURE
THAT CONCEIVABLY COULD BE APPLIED TO RESERVIST MEMBERS OF CONGRESS
THROUGH SUCH OFFICES AS THE PRESIDENT'S POWER TO CALL RESERVISTS TO
ACTIVE DUTY WITHOUT THEIR CONSENT, 10 U.S.C. 672 - 675, OR HIS POWER TO
DISCHARGE COMMISSIONED RESERVISTS, WHO SERVE ONLY AT HIS PLEASURE.  10
U.S.C. 593. 

/4/  RESPONDENTS DID NOT, IN THE COURT OF APPEALS OR BY CROSS
PETITION HERE CHALLENGE THE DISTRICT COURT'S DENIAL OF INJUNCTIVE AND
MANDAMUS RELIEF.  IN LIGHT OF THE GROUND FOR OUR DISPOSITION OF THE
CASE, WE NEED NOT AND DO NOT ADDRESS OURSELVES TO THE VALIDITY OR SCOPE
OF THE DISTRICT COURT'S RULING ON THE MERITS OF RESPONDENTS' CLAIM, OR
THE RELIEF IT GRANTED. 

/5/ THE LACK OF A FIXED RULE AS TO THE PROPER SEQUENCE OF JUDICIAL
ANALYSIS OF CONTENTIONS INVOLVING MORE THAN ONE FACET OF THE CONCEPT OF
JUSTICIABILITY WAS RECENTLY EXHIBITED BY THE COURT OF APPEALS FOR THE
SECOND CIRCUIT, WHICH BYPASSED A DETERMINATION ON STANDING TO RULE THAT
A CLAIM WAS NOT JUSTICIABLE BECAUSE IT PRESENTED A POLITICAL QUESTION: 

"(THE STANDING OF A PARTY NEED NOT COME INTO QUESTION IF A COURT
DETERMINES THAT FOR OTHER REASONS THE ISSUE RAISED BEFORE THE BENCH IS
NON-JUSTICIABLE." 

THAT COURT THUS HELD IN EFFECT THAT IF NO JUSTICIABLE QUESTION IS
PRESENTED NO ONE HAS STANDING.  DACOSTA V. LAIRD, 471 F.2D 1146, 1152
(1973).  SEE ALSO SIERRA CLUB V. MORTON, 405 U.S. 727, 731 (1972);
FLAST V. COHEN, 392 U.S. 83, 100 (1968). 

/6/  THE COURT OF APPEALS DID NO MORE THAN AFFIRM THE JUDGMENT OF
THE DISTRICT COURT, INCLUDING THE LATTER'S DENIAL OF RESPONDENTS'
STANDING AS TAXPAYERS.  PETITIONERS MAY, HOWEVER, HAVE SOUGHT TO RAISE
THE ISSUE OF TAXPAYER STANDING IN THIS COURT BECAUSE OF THE AMBIGUOUS
REFERENCE IN THE COURT OF APPEALS'  JUDGMENT OF AFFIRMANCE TO FLAST V.
COHEN, SUPRA, A TAXPAYER-STANDING CASE. 

/7/  THE GENERALIZED NATURE OF RESPONDENTS' CLAIM IS REVEALED BY THE
SCOPE OF RELIEF SOUGHT, I. E., REMOVAL OF ALL RESERVIST MEMBERS OF
CONGRESS FROM RESERVE STATUS RATHER THAN THE REMOVAL OF ONLY THOSE
RESERVIST MEMBERS WHO MANIFESTED BY THEIR ACTIONS THAT THEY WERE
INFLUENCED BY THEIR RESERVE STATUS TO ACT ADVERSELY TO RESPONDENTS'
INTEREST. 

/8/  THE COURT CITED A NUMBER OF CASES IN SUPPORT OF ITS HOLDING,
NEARLY ALL OF WHICH CONTAINED LANGUAGE SIMILAR TO THAT QUOTED IN THE
TEXT.  SEE FROTHINGHAM V. MELLON, 262 U.S. 447, 488 (1923)
(INSUFFICIENT FOR A PARTY TO SHOW "MERELY THAT HE SUFFERS IN SOME
INDEFINITE WAY IN COMMON WITH PEOPLE GENERALLY"); FAIRCHILD V. HUGHES,
258 U.S. 126, 129 - 130 (1922) ("PLAINTIFF HAS ONLY THE RIGHT,
POSSESSED BY EVERY CITIZEN, TO REQUIRE THAT THE GOVERNMENT BE
ADMINISTERED ACCORDING TO LAW AND THAT THE PUBLIC MONEYS BE NOT
WASTED.  OBVIOUSLY THIS GENERAL RIGHT DOES NOT ENTITLE A PRIVATE
CITIZEN TO INSTITUTE IN THE FEDERAL COURTS A SUIT"); TYLER V. JUDGES OF
COURT OF REGISTRATION, 179 U.S. 405, 406 (1900) ("EVEN IN A PROCEEDING
WHICH HE PROSECUTES FOR THE BENEFIT OF THE PUBLIC . . . (THE PLAINTIFF)
MUST GENERALLY AVER AN INJURY PECULIAR TO HIMSELF, AS DISTINGUISHED
FROM THE GREAT BODY OF HIS FELLOW CITIZENS").  SEE ALSO GILES V.
HARRIS, 189 U.S. 475, 486 (1903) (HOLMES, J.) ("THE PLAINTIFF ALLEGES
THAT THE WHOLE REGISTRATION SCHEME OF THE ALABAMA CONSTITUTION IS A
FRAUD UPON THE CONSTITUTION OF THE UNITED STATES, AND ASKS US TO
DECLARE IT VOID.  BUT OF COURSE HE COULD NOT MAINTAIN A BILL FOR A MERE
DECLARATION IN THE AIR.").  CF. NEWMAN V. FRIZZELL, 238 U.S. 537, 550
(1915). 

/9/  THE COURT HAS ALSO RECENTLY CITED WITH APPROVAL TWO OF THE
PRINCIPAL CASES RELIED UPON IN EX PARTE LEVITT, 302 U.S. 633 (1937). 
FROTHINGHAM V. MELLON, SUPRA, WAS USED FOR SUPPORT IN O'SHEA V.
LITTLETON, 414 U.S. 488, 494 (1974), AS WAS FAIRCHILD V. HUGHES, SUPRA,
USED IN BAKER V. CARR, 369 U.S. 186, 208 (1962). 

/10/  THIS IS IN SHARP CONTRAST TO THE POLITICAL PROCESSES IN WHICH
THE CONGRESS CAN INITIATE INQUIRY AND ACTION, DEFINE ISSUES AND
OBJECTIVES, AND EXERCISE VIRTUALLY UNLIMITED POWER BY WAY OF HEARINGS
AND REPORTS, THUS MAKING A RECORD FOR PLENARY CONSIDERATION AND
SOLUTIONS.  THE LEGISLATIVE FUNCTION IS INHERENTLY GENERAL RATHER THAN
PARTICULAR AND IS NOT INTENDED TO BE RESPONSIVE TO ADVERSARIES
ASSERTING SPECIFIC CLAIMS OR INTERESTS PECULIAR TO THEMSELVES. 

/11/  WE HAVE EXPRESSED APPREHENSION ABOUT CLAIMS OF STANDING BASED
ON "MERE 'INTEREST IN A PROBLEM.'"  SEE, E. G., SIERRA CLUB, 405
U.S.,AT 739.  EARLIER CASES OF THE COURT EVIDENCED COMPARABLE CONCERN. 
SEE, E. G., NEWMAN V. FRIZZELL, 238 U.S.,AT 552 N. 8. 

/12/  LAMM V. VOLPE, 449 F.2D 1202, 1204 (CA10 1971); PIETSCH V.
PRESIDENT OF UNITED STATES, 434 F.2D 861, 863 (CA2 1970) (CLARK, J.);
TROUTMAN V. SHRIVER, 417 F.2D 171, 174 (CA5 1969) (CITING LEVITT,
SUPRA); VELVEL V. NIXON, 415 F.2D 236, 239 (CA10 1969); PAULING V.
MCELROY, 107 U.S.APP.D.C. 372, 374, 278 F.2D 252, 254 (1960); CF.
SHARROW V. BROWN, 447 F.2D 94, 97 (CA2 1971).  AND ASIDE FROM THE
DECISION UNDER REVIEW, THE ONLY OTHER OPINION THAT APPEARS TO HAVE
RULED OTHERWISE IS ATLEE V. LAIRD, 339 F.SUPP.  1347 (ED PA. 1972),
WHICH RELIED UPON THE DECISION OF THE DISTRICT COURT HERE.  ID., AT
1357 N. 8. 

/13/ THE COURT OF APPEALS' RELIANCE ON BAKER V. CARR, 369 U.S. 186
(1962), IS INAPPOSITE.  UNITED STATES V. SCRAP, 412 U.S. 669 (1973),
POINTED OUT THAT A PERSONAL STAKE IN A FRACTION OF A VOTE IN BAKER V.
CARR WAS SUFFICIENT TO SUPPORT STANDING.  ID., AT 689 N. 14.  THE
INJURY ASSERTED IN BAKER WAS THUS A CONCRETE INJURY TO FUNDAMENTAL
VOTING RIGHTS, AS DISTINGUISHED FROM THE ABSTRACT INJURY IN
NONOBSERVANCE OF THE CONSTITUTION ASSERTED BY RESPONDENTS AS CITIZENS. 

IN BAKER V. CARR, THE COURT CITED WITH APPROVAL THE EARLY CASE OF
LIVERPOOL, N. Y. & PHILA.  S. S. CO. V. COMM'RS OF EMIGRATION, 113 U.S.
33 (1885), WHERE IT WAS HELD THAT A FEDERAL COURT CAN ADJUDGE RIGHTS
ONLY "IN ACTUAL CONTROVERSIES."  ID., AT 39. 

/14/  THE DISTRICT COURT MADE ANALOGY TO CONFLICT-OF-INTEREST
STATUES WHICH, IT SAID, ARE DIRECTED AT AVOIDING CIRCUMSTANCES OF
POTENTIAL, NOT ACTUAL, IMPROPRIETY.  WE HAVE NO DOUBT THAT IF THE
CONGRESS ENACTED A STATUTE CREATING SUCH A LEGAL RIGHT, THE REQUISITE
INJURY FOR STANDING WOULD BE FOUND IN AN INVASION OF THAT RIGHT. 
O'SHEA V. LITTLETON, 414 U.S.,AT 493 N. 2; LINDA R. S. V. RICHARD D.,
410 U.S. 614, 617 N. 3 (1973); ASSOCIATION OF DATA PROCESSING SERVICE
ORGANIZATIONS, INC. V. CAMP, 397 U.S. 150, 154 (1970).  BUT TO SATISFY
THE ART. III PREREQUISITE THE COMPLAINING PARTY WOULD STILL BE REQUIRED
TO ALLEGE A SPECIFIC INVASION OF THE RIGHT SUFFERED BY HIM.  STANDING
COULD NOT BE FOUND--AS IT IS NOT HERE--IN A CITIZEN WHO ALLEGED NO MORE
THAN THE RIGHT OF ALL OTHER CITIZENS TO HAVE GOVERNMENT CONDUCTED
WITHOUT WHAT HE PERCEIVED, WITHOUT HIMSELF HAVING SUFFERED CONCRETE
HARM, TO BE PROSCRIBED CONFLICTS OF INTEREST. 

/15/  LOOKING "TO THE SUBSTANTIVE ISSUES" WHICH FLAST STATED TO BE
BOTH "APPROPRIATE AND NECESSARY" IN RELATION TO TAXPAYER STANDING WAS
FOR THE EXPRESS PURPOSE OF DETERMINING "WHETHER THERE IS A LOGICAL
NEXUS BETWEEN THE (TAXPAYER) STATUS ASSERTED AND THE CLAIM SOUGHT TO BE
ADJUDICATED."  392 U.S.,AT 102.  THIS STEP IS NOT APPROPRIATE ON A
CLAIM OF A CITIZEN STANDING SINCE THE FLAST NEXUS TEST IS NOT
APPLICABLE WHERE THE TAXING AND SPENDING POWER IS NOT CHALLENGED. 
HENCE THERE WAS NO OCCASION FOR THE DISTRICT COURT OR THE COURT OF
APPEALS TO REACH OR EVALUATE WHAT IT SAW AS THE MERITS OF RESPONDENTS'
COMPLAINT. 

/16/  SATISFACTION OF THE DATA PROCESSING "ZONE OF INTEREST"
REQUIREMENT SEEMINGLY RELIED UPON TO FIND CITIZEN STANDING DOES NOT
SUPPORT SUCH STANDING FOR TWO REASONS:  FIRST, THAT CASE INVOLVED
JUDICIAL REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT OF REGULATORY
AGENCY ACTION ALLEGED TO HAVE CAUSED PRIVATE COMPETITIVE INJURY;
SECOND, DATA PROCESSING REQUIRED A SHOWING OF INJURY IN FACT, IN
ADDITION TO THE "ZONE OF INTEREST" REQUIREMENT.  UNTIL A JUDICIALLY
COGNIZABLE INJURY IS SHOWN NO OTHER INQUIRY IS RELEVANT TO
CONSIDERATION OF CITIZEN STANDING. 

/17/  AS NOTED EARLIER, SUPRA, AT 211, RESPONDENTS REQUESTED THE
DISTRICT COURT TO COMPEL PETITIONERS TO SEEK TO RECLAIM RESERVE PAY
RECEIVED BY RESERVIST MEMBERS OF CONGRESS.  SUCH RELIEF WOULD FOLLOW
FROM THE INVALIDITY OF EXECUTIVE ACTION IN PAYING PERSONS WHO COULD NOT
LAWFULLY HAVE BEEN RESERVISTS, NOT FROM THE INVALIDITY OF THE STATUTES
AUTHORIZING PAY TO THOSE WHO LAWFULLY WERE RESERVISTS. 

MR. JUSTICE STEWART, CONCURRING. 

I AGREE WITH THE COURT THAT THE RESPONDENTS LACK STANDING TO SUE
EITHER AS CITIZENS OR TAXPAYERS IN THIS CASE.  HERE, UNLIKE UNITED
STATES V. RICHARDSON, ANTE, P. 166, THE RESPONDENTS DO NOT ALLEGE THAT
THE PETITIONERS HAVE REFUSED TO PERFORM AN AFFIRMATIVE DUTY IMPOSED
UPON THEM BY THE CONSTITUTION.  NOR CAN THERE BE TAXPAYER STANDING
UNDER FLAST C. COHEN, 392 U.S. 83, SINCE THERE IS SIMPLY NO CHALLENGE
TO AN EXERCISE OF THE TAXING AND SPENDING POWER. 

THE COURT'S JUDGMENT IN THIS CASE IS WHOLLY CONSISTENT WITH UNITED
STATES V. SCRAP, 412 U.S. 669.  STANDING IS NOT TODAY FOUND WANTING
BECAUSE AN INJURY HAS BEEN SUFFERED BY MANY, BUT RATHER BECAUSE NONE OF
THE RESPONDENTS HAS ALLEGED THE SORT OF DIRECT, PALPABLE INJURY
REQUIRED FOR STANDING UNDER ART. III.  LIKE THE PLAINTIFF IN
FROTHINGHAM V. MELLON, 262 U.S. 447, THE RESPONDENTS SEEK ONLY TO AIR
WHAT WE DESCRIBED IN FLAST AS "GENERALIZED GRIEVANCES ABOUT THE CONDUCT
OF GOVERNMENT."  392 U.S., AT 106.  OUR PRIOR CASES MAKE CLEAR THAT
SUCH ABSTRACT ALLEGATIONS CANNOT SUFFICE TO CONFER ART. III STANDING,
AND I THEREFORE JOIN THE OPINION AND JUDGMENT OF THE COURT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MARSHALL JOINS,

  DISSENTING. 

THE REQUIREMENT OF "STANDING" TO SUE IS A JUDICIALLY CREATED
INSTRUMENT SERVING SEVERAL ENDS:  (1) IT PROTECTS THE STATUS QUO BY
REDUCING THE CHALLENGES THAT MAY BE MADE TO IT AND TO ITS
INSTITUTIONS.  IT GREATLY RESTRICTS THE CLASSES OF PERSONS WHO MAY
CHALLENGE ADMINISTRATIVE ACTION.  ITS APPLICATION IN THIS CASE SERVES
TO MAKE THE BUREAUCRACY OF THE PENTAGON MORE AND MORE IMMUNE FROM THE
PROTESTS OF CITIZENS.  (2) IT SOMETIMES IS USED TO BAR FROM THE COURTS
QUESTIONS WHICH BY THE CONSTITUTION ARE LEFT TO THE OTHER TWO
COORDINATE BRANCHES TO RESOLVE, VIZ., THE SO-CALLED POLITICAL
QUESTION.  (3) IT IS AT TIMES A WAY OF RIDDING COURT DOCKETS WHETHER OF
ABSTRACT QUESTIONS OR QUESTIONS INVOLVING NO CONCRETE CONTROVERSIAL
ISSUE. 

OUR LEADING CASE IS FROTHINGHAM V. MELLON, 262 U.S. 447, DECIDED IN
1923, WHERE A TAXPAYER CHALLENGED THE CONSTITUTIONALITY OF AN ACT OF
CONGRESS THAT GAVE GRANTS TO STATES WHICH AGREED TO A PLAN TO REDUCE
MATERNAL AND INFANT MORTALITY.  THE COURT SAID: 

     "THE ADMINISTRATION OF ANY STATUTE, LIKELY TO PRODUCE

  ADDITIONAL TAXATION TO BE IMPOSED UPON A VAST NUMBER OF

  TAXPAYERS, THE EXTENT OF WHOSE SEVERAL LIABILITY IS INDEFINITE

  AND CONSTANTLY CHANGING, IS ESSENTIALLY A MATTER OF PUBLIC AND

  NOT OF INDIVIDUAL CONCERN.  IF ONE TAXPAYER MAY CHAMPION AND

LITIGATE SUCH A CAUSE, THEN EVERY OTHER TAXPAYER MAY DO THE SAME,

  NOT ONLY IN RESPECT OF EVERY OTHER APPROPRIATION ACT AND STATUTE

  WHOSE ADMINISTRATION REQUIRES THE OUTLAY OF PUBLIC MONEY, AND

  WHOSE VALIDITY MAY BE QUESTIONED.  THE BARE SUGGESTION OF SUCH A

  RESULT, WITH ITS ATTENDANT INCONVENIENCES, GOES FAR TO SUSTAIN

  THE CONCLUSION WHICH WE HAVE REACHED, THAT A SUIT OF THIS

  CHARACTER CANNOT BE MAINTAINED.  IT IS OF MUCH SIGNIFICANCE THAT

  NO PRECEDENT SUSTAINING THE RIGHT TO MAINTAIN SUITS LIKE THIS HAS

  BEEN CALLED TO OUR ATTENTION, ALTHOUGH, SINCE THE FORMATION OF

  THE GOVERNMENT, AS AN EXAMINATION OF THE ACTS OF CONGRESS WILL

  DISCLOSE, A LARGE NUMBER OF STATUTES APPROPRIATING OR INVOLVING

  THE EXPENDITURE OF MONEYS FOR NON-FEDERAL PURPOSES HAVE BEEN

  ENACTED AND CARRIED INTO EFFECT."  ID., AT 487 - 488. 

THAT RULING HAD IN IT AN ADMIXTURE OF THE "POLITICAL QUESTION"
BECAUSE, SAID THE COURT, THE ONLY OCCASION WHEN THE FEDERAL COURT MAY
ACT IS WHEN A FEDERAL LAW RESULTS IN "SOME DIRECT INJURY SUFFERED OR
THREATENED, PRESENTING A JUSTICIABLE ISSUE."  ID., AT 488.  WHEN THAT
ELEMENT IS LACKING, JUDICIAL INTRUSION WOULD TRESPASS ON POWERS GRANTED
ANOTHER DEPARTMENT OF GOVERNMENT.  "TO DO SO WOULD BE NOT TO DECIDE A
JUDICIAL CONTROVERSY, BUT TO ASSUME A POSITION OF AUTHORITY OVER THE
GOVERNMENTAL ACTS OF ANOTHER AND CO-EQUAL DEPARTMENT, AN AUTHORITY
WHICH PLAINLY WE DO NOT POSSESS."  ID., AT 488 - 489.     IN 1968--45
YEARS AFTER FROTHINGHAM--THAT CASE WAS REVISITED IN FLAST V. COHEN, 392
U.S. 83, WHERE FEDERAL TAXPAYERS SUED TO ENJOIN THE EXPENDITURE OF
FEDERAL TAXPAYERS SUED TO ENJOIN THE EXPENDITURE OF FEDERAL FUNDS UNDER
AN ACT OF CONGRESS GRANTING FINANCIAL AID TO RELIGIOUS SCHOOLS.  THE
COURT HELD THAT THOSE TAXPAYERS DID HAVE "STANDING" TO SUE FOR TWO
REASONS.  FIRST, BECAUSE THEY CHALLENGED THE EXERCISE OF CONGRESSIONAL
POWER UNDER THE TAXING AND SPENDING CLAUSE OF ART. I, 8, OF THE
CONSTITUTION, NOT THE INCIDENTAL EXPENDITURE OF TAX FUNDS IN THE
ADMINISTRATION OF AN ESSENTIALLY REGULATORY STATUTE.  SECOND, BECAUSE
THE CHALLENGED ENACTMENT EXCEEDED THE LIMITATIONS IMPOSED UPON THE
EXERCISE OF THE CONGRESSIONAL TAXING AND SPENDING POWER.  SEE 392
U.S.,AT 102 - 104.  THEREFORE, THE COURT CONCLUDED THAT THE TAXPAYER
HAD "THE REQUISITE PERSONAL STAKE," ID., AT 101, IN THE LITIGATION TO
HAVE "STANDING" TO SUE AND THE COURT WENT ON TO HOLD THAT ESTABLISHMENT
CLAUSE OF THE FIRST AMENDMENT "OPERATES AS A SPECIFIC CONSTITUTIONAL
LIMITATION UPON THE EXERCISE BY CONGRESS OF THE TAXING AND SPENDING
POWER CONFERRED BY ART. I, 8."  ID., AT 104. 

THE PRESENT CASE IMPLICATES TWO PROVISIONS OF THE CONSTITUTION. 
ARTICLE I, 8, CL. 1, PROVIDES: "THE CONGRESS SHALL HAVE POWER TO LAY
AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES, TO PAY THE DEBTS AND
PROVIDE FOR THE COMMON DEFENCE AND GENERAL WELFARE OF THE UNITED STATES
. . . ."  ARTICLE I, 6, CL. 2, OF THE CONSTITUTION SAYS THAT "NO PERSON
HOLDING ANY OFFICE /1/  UNDER THE UNITED STATES, SHALL BE A MEMBER OF
EITHER HOUSE DURING HIS CONTINUANCE IN OFFICE." 

THE PRESENT SUIT IS NOT ONE TO OUST MEMBERS FROM CONGRESS.  RATHER
IT IS BROUGHT AGAINST THE SECRETARY OF DEFENSE CHALLENGING HIS KEEPING
IN THE ARMED SERVICES OF THE UNITED STATES MEMBERS OF CONGRESS WHO HOLD
COMMISSIONS AS RESERVISTS. 

VARIOUS ACTS OF CONGRESS MAKE VARIOUS APPROPRIATIONS FOR THE
SERVICES OF RESERVISTS.  SEE, E. G., PUB.L. 92 - 145, 85 STAT. 414;
PUB.L. 92 - 545, 86 STAT. 1154. 

ARTICLE I, 6, CL. 2, IS OFTEN REFERRED TO AS THE INCOMPATIBILITY
CLAUSE.  AT THE 1783 CONVENTION SOME PROPOSED THAT MEMBERS OF CONGRESS
BE ALLOWED TO SERVE IN THE EXECUTIVE BRANCH, /2/  OTHERS WERE OPPOSED;
MASON APPARENTLY REPRESENTED THE MAJORITY VIEW WHEN HE INSISTED THAT
"INELIGIBILITY WILL KEEP OUT CORRUPTION, BY EXCLUDING OFFICE-HUNTERS." 
/3/  ARTICLE I, 6, CL. 2, LIKE THE ESTABLISHMENT CLAUSE OF THE FIRST
AMENDMENT, "WAS DESIGNED AS A SPECIFIC BULWARK AGAINST SUCH POTENTIAL
ABUSES . . . AND . . . OPERATES AS A SPECIFIC CONSTITUTIONAL LIMITATION
UPON" SUCH EXPENDITURES.  FLAST V. COHEN, SUPRA, AT 104. 

AS STATED BY HAMILTON IN THE FEDERALIST NO. 76, P. 476 (H. LODGE ED.
1888), THE INCOMPATIBILITY CLAUSE HAD A SPECIFIC PURPOSE:  TO AVOID
"THE DANGER OF EXECUTIVE INFLUENCE UPON THE LEGISLATIVE BODY." 

WHILE RESPONDENTS HAVE STANDING AS TAXPAYERS, THEIR CITIZENSHIP ALSO
GIVES THEM STANDING TO CHALLENGE THE APPROPRIATION ACTS FINANCING
ACTIVITIES OF THE RESERVISTS. 

WE TEND TO OVERLOOK THE BASIC POLITICAL AND LEGAL REALITY THAT THE
PEOPLE, NOT THE BUREAUCRACY, ARE THE SOVEREIGN.  OUR FEDERAL GOVERNMENT
WAS CREATED FOR THE SECURITY AND HAPPINESS OF THE PEOPLE.  EXECUTIVES,
LAWMAKERS, AND MEMBERS OF THE JUDICIARY ARE INFERIOR IN THE SENSE THAT
THEY ARE IN OFFICE ONLY TO CARRY OUT AND EXECUTE THE CONSTITUTIONAL
REGIME. 

THE PREAMBLE OF THE CONSTITUTION STATES THAT "WE THE PEOPLE"
ORDAINED AND ESTABLISHED THE CONSTITUTION. 

THE DECLARATION OF INDEPENDENCE STATED THAT TO INSURE "CERTAIN
UNALIENABLE RIGHTS," "GOVERNMENTS ARE INSTITUTED AMONG MEN, DERIVING
THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED" AND "THAT WHENEVER
ANY FORM OF GOVERNMENT BECOMES DESTRUCTIVE OF THESE ENDS, IT IS THE
RIGHT OF THE PEOPLE TO ALTER OR TO ABOLISH IT." 

THE PRESENT CASE DOES NOT INVOLVE A RESTRUCTURING OF SOCIETY--A
PROCEDURE LEFT TO LEGISLATIVE ACTION IN PART BUT MOSTLY TO
CONSTITUTIONAL CONVENTIONS.  ALL THAT THE CITIZENS IN THIS CASE SEEK IS
TO HAVE THE CONSTITUTION ENFORCED AS IT IS WRITTEN.  IT IS NOT A SUIT
TO UNSEAT MEMBERS OF CONGRESS.  ANY DECREE THAT ISSUED WOULD RUN TO THE
SECRETARY OF DEFENSE TO TAKE THE CHALLENGED RESERVISTS OFF HIS LIST. 

THE INTEREST OF CITIZENS IS OBVIOUS.  THE COMPLAINT ALLEGES INJURIES
TO THE ABILITY OF THE AVERAGE CITIZEN TO MAKE HIS POLITICAL ADVOCACY
EFFECTIVE WHENEVER IT TOUCHES ON THE VAST INTERESTS OF THE PENTAGON. 
IT IS SAID THAT ALL WHO OPPOSE THE EXPANSION OF MILITARY INFLUENCE IN
OUR NATIONAL AFFAIRS FIND THEY ARE MET WITH A POWERFUL LOBBY--THE
RESERVE OFFICERS ASSOCIATION--WHICH HAS STRONG CONGRESSIONAL ALLIES. 

WHETHER THAT IS TRUE OR NOT WE DO NOT KNOW.  SO FAR AS THE
INCOMPATIBILITY CLAUSE OF THE CONSTITUTION IS CONCERNED THAT CONTENTION
IS IMMATERIAL.  IT IS AS IMMATERIAL TO THE FUNCTION OF ART. I, 6, CL.
2, OF THE CONSTITUTION AS WOULD BE A SUGGESTION THAT THE ESTABLISHMENT
OF A RELIGION UNDER THE FIRST AMENDMENT IS BENIGN IN A GIVEN CASE. 
WHAT THE FRAMERS DID IN EACH CASE WAS TO SET UP CONSTITUTIONAL FENCES
BARRING CERTAIN AFFILIATIONS, CERTAIN KINDS OF APPROPRIATIONS.  THEIR
JUDGMENT WAS THAT THE POTENTIAL FOR EVIL WAS SO GREAT THAT NO
APPROPRIATIONS OF THAT CHARACTER SHOULD BE MADE. 

THE INTEREST OF CITIZENS IN GUARANTEES WRITTEN IN THE CONSTITUTION
SEEMS OBVIOUS.  WHO OTHER THAN CITIZENS HAS A BETTER RIGHT TO HAVE THE
INCOMPATIBILITY CLAUSE ENFORCED?  IT IS THEIR INTERESTS THAT THE
INCOMPATIBILITY CLAUSE WAS DESIGNED TO PROTECT.  THE EXECUTIVE BRANCH
UNDER OUR REGIME IS NOT A FIEFDOM OR PRINCIPALITY COMPETING WITH THE
LEGISLATIVE AS ANOTHER CENTER OF POWER.  IT OPERATES WITHIN A
CONSTITUTIONAL FRAMEWORK, AND IT IS THAT CONSTITUTIONAL FRAMEWORK THAT
THESE CITIZENS WANT TO KEEP INTACT.  THAT IS, IN MY VIEW, THEIR
RIGHTFUL CONCERN.  WE HAVE INSISTED THAT MORE THAN GENERALIZED
GRIEVANCES OF A CITIZEN BE SHOWN, THAT HE MUST HAVE A "PERSONAL STAKE
IN THE OUTCOME,"  BAKER V. CARR, 369 U.S. 186, 204.  BUT THAT "PERSONAL
STAKE" NEED NOT BE A MONETARY ONE.  IN BAKER V. CARR IT WAS THE RIGHT
TO VOTE, AN IMPORTANT BADGE OF CITIZENSHIP.  THE "PERSONAL STAKE" IN
THE PRESENT CASE IS KEEPING THE INCOMPATIBILITY CLAUSE AN OPERATIVE
FORCE IN THE GOVERNMENT BY FREEING THE ENTANGLEMENT OF THE FEDERAL
BUREAUCRACY WITH THE LEGISLATIVE BRANCH. 

EX PARTE LEVITT, 302 U.S. 633, IS NOT OPPOSED.  LEVITT MOVED IN THIS
COURT TO HAVE IT DECLARE THE APPOINTMENT OF MR. JUSTICE BLACK
UNCONSTITUTIONAL.  HE ALLEGED THAT MR. JUSTICE BLACK, AS SENATOR, HAD
VOTED TO INCREASE THE "EMOLUMENTS" OF THE OFFICE OF ASSOCIATE JUSTICE
AND WAS THEREFORE BARRED FROM TAKING OFFICE BY REASON OF ART. I, 6, CL.
2, OF THE CONSTITUTION.  THE COURT DENIED THE MOTION TO FILE AN
ORIGINAL ACTION STATING: 

     "IT IS AN ESTABLISHED PRINCIPLE THAT TO ENTITLE A PRIVATE

  INDIVIDUAL TO INVOKE THE JUDICIAL POWER TO DETERMINE THE VALIDITY

  OF EXECUTIVE OR LEGISLATIVE ACTION HE MUST SHOW THAT HE HAS

  SUSTAINED OR IS IMMEDIATELY IN DANGER OF SUSTAINING A DIRECT

  INJURY AS THE RESULT OF THAT ACTION AND IT IS NOT SUFFICIENT THAT

  HE HAS MERELY A GENERAL INTEREST COMMON TO ALL MEMBERS OF THE

  PUBLIC."  302 U.S.,AT 634. 

THE ONLY "EMOLUMENT" OF OFFICE WHICH MR. JUSTICE BLACK AS SENATOR
HAD VOTED TO INCREASE WAS THE RETIREMENT COMPENSATION OF FEDERAL JUDGES
AS SPELLED OUT IN THE ACT OF MARCH 1, 1937, C. 21, 50 STAT. 24.  THAT
EMOLUMENT MIGHT NEVER ACCRUE TO AN APPOINTEE FOR HE WOULD FIRST HAVE TO
SERVE A DESIGNATED NUMBER OF YEARS.  IT TURNED OUT THAT EVEN THOUGH
JUSTICE BLACK SERVED OVER 34 YEARS HE NEVER RECEIVED ANY BENEFITS UNDER
THE RETIREMENT ACT.  HENCE THE COURT SHOWED WISDOM IN DECIDING THAT
LEVITT SHOWED NO "DIRECT INJURY."  HIS CLAIM OF CONSTITUTIONAL
VIOLATION WAS REMOTE, SPECULATIVE, AND CONTINGENT.  THE PRESENT SUIT
HAS NO SUCH DEFICIENCY.  IT ASSERTS A PRESENT, ONGOING CONFLICT BETWEEN
THE PENTAGON'S POLICIES AND THE INCOMPATIBILITY CLAUSE OF THE
CONSTITUTION. 

THE INTEREST OF THE CITIZEN IN THIS CONSTITUTIONAL QUESTION IS, OF
COURSE, COMMON TO ALL CITIZENS.  BUT AS WE SAID IN UNITED STATES V.
SCRAP, 412 U.S. 669, 687 - 688, "STANDING IS NOT TO BE DENIED SIMPLY
BECAUSE MANY PEOPLE SUFFER THE SAME INJURY . . . . TO DENY STANDING TO
PERSONS WHO ARE IN FACT INJURED SIMPLY BECAUSE MANY OTHERS ARE ALSO
INJURED, WOULD MEAN THAT THE MOST INJURIOUS AND WIDESPREAD GOVERNMENT
ACTIONS COULD BE QUESTIONED NOBODY." 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  I AGREE WITH THE CONCLUSION OF THE HOUSE JUDICIARY COMMITTEE,
H. R. REP. NO. 885, 64TH CONG., 1ST SESS. (1916), THAT A COMMISSION IN
THE NATIONAL GUARD IS AN "OFFICE" IN THE CONSTITUTIONAL SENSE.  A
COMMISSION IN THE RESERVES IS NOT DISTINGUISHABLE.  SEE UNITED STATES
V. HARTWELL, 6 WALL.  385. 

/2/  SEE 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF
1787, PP. 283 - 290 (1911). 

/3/  ID., AT 491. 

MR. JUSTICE BRENNAN, DISSENTING.  /1/ 

THE "STANDING" OF A PLAINTIFF TO BE HEARD ON A CLAIM OF INVASION OF
HIS ALLEGED LEGALLY PROTECTED RIGHT IS ESTABLISHED, IN MY VIEW, BY HIS
GOOD-FAITH ALLEGATION THAT "'THE CHALLENGED ACTION HAS CAUSED HIM
INJURY IN FACT.'"  BARLOW V. COLLINS, 397 U.S. 159, 167 - 168 (1970)
(CONCURRING IN THE RESULT AND DISSENTING).  THE COURT'S FURTHER
INQUIRY, IN EACH OF THESE CASES, INTO THE CONNECTION BETWEEN "THE ZONE
OF INTERESTS TO BE PROTECTED OR REGULATED BY THE STATUTE OR
CONSTITUTIONAL GUARANTEE IN QUESTION," ASSOCIATION OF DATA PROCESSING
SERVICE ORGANIZATIONS, INC. V. CAMP, 397 U.S. 150, 153 (1970), AND THE
"INTEREST SOUGHT TO BE PROTECTED BY THE COMPLAINANT," IBID., IS
RELEVANT, NOT TO "STANDING" BUT, IF AT ALL, ONLY TO SUCH LIMITATIONS ON
EXERCISE OF THE JUDICIAL FUNCTION AS JUSTICIABILITY, SEE, E. G., BAKER
V. CARR, 369 U.S. 186 (1962), OR REVIEWABILITY, SEE, E.G., ABBOTT
LABORATORIES V. GARDNER, 387 U.S. 136, 140 (1967). 

RICHARDSON PLAINLY ALLEGED INJURY IN FACT.  MY BROTHER STEWART
DEMONSTRATES THIS IN HIS ANALYSIS OF RICHARDSON'S CLAIMED RIGHT TO HAVE
THE BUDGET OF THE CENTRAL INTELLIGENCE AGENCY PUBLISHED.  THE CLAIM WAS
NOT MERELY THAT FAILURE TO PUBLISH WAS A VIOLATION OF THE
CONSTITUTION.  THE CLAIM WENT FURTHER AND ALLEGED THAT THIS VIOLATION
DEPRIVED RICHARDSON, AS AN INDIVIDUAL, AND NOT AS AN INSEPARABLE PART
OF THE CITIZENRY, OF A RIGHT GIVEN HIM BY ART. I, 9, CL. 7.  MOREOVER,
HIS COMPLAINT, PROPERLY CONSTRUED, ALLEGED THAT THE VIOLATIONS CAUSED
HIM INJURY NOT ONLY IN RESPECT OF HIS RIGHT AS A CITIZEN TO KNOW HOW
CONGRESS WAS SPENDING THE PUBLIC FISC, BUT ALSO IN RESPECT OF HIS RIGHT
AS A VOTER TO RECEIVE INFORMATION TO AID HIS DECISION HOW AND FOR WHOM
TO VOTE.  THESE CLAIMS MAY ULTIMATELY FAIL ON THE MERITS, BUT
RICHARDSON HAS "STANDING" TO ASSERT THEM. 

SIMILARLY, I WOULD HOLD THAT RESPONDENT RESERVISTS COMMITTEE AND ITS
MEMBERS HAVE DEMONSTRATED SUFFICIENT "INJURY IN FACT" TO MAINTAIN THEIR
SUIT.  THEIR ALLEGATION THAT THEY ARE INJURED AS TAXPAYERS, WHILE AT
FIRST GLANCE SEEMING EXTRAORDINARILY DIFFICULT TO PROVE, IS NEITHER
IMPOSSIBLE NOR, ON THE BASIS OF THIS RECORD, MADE IN BAD FAITH.  IF THE
SECRETARY OF DEFENSE TAKES A CONTRARY POSITION WITH REGARD TO EITHER OF
THESE REQUIREMENTS, IT IS OPEN TO HIM TO MOVE FOR SUMMARY JUDGMENT AND
COMPEL RESPONDENTS TO ESTABLISH THEIR POSITION.  SEE BARLOW, SUPRA, AT
175.  MORE STRINGENT REQUIREMENTS, SUCH AS THE COURT'S DEMAND THAT
THESE RESPONDENTS SATISFY FLAST'S "NEXUS" REQUIREMENT, ARE NOT
APPROPRIATE ISSUES FOR RESOLUTION UNDER THE RUBRIC OF "STANDING." 
SINCE I WOULD FIND THE INJURY-IN-FACT REQUIREMENT MET BY RESPONDENTS'
TAXPAYER ALLEGATION, I HAVE NO OCCASION TO REACH THE QUESTION WHETHER
RESPONDENT RESERVISTS COMMITTEE AND ITS MEMBERS' ALLEGATIONS OF INJURY
TO THEIR INTERESTS AS CITIZENS WOULD BE SUFFICIENT TO CONFER STANDING
UNDER THE CIRCUMSTANCES OF THIS CASE. 

UNLIKE MY BROTHER STEWART, WHO DISTINGUISHES THESE TWO CASES, I
WOULD FIND THAT FLAST V. COHEN, 392 U.S. 83 (1968), SUPPORTS THE
CONCLUSION THAT THESE ALLEGATIONS OF INJURY-IN-FACT ARE SUFFICIENT TO
GIVE RESPONDENTS IN BOTH CASES "STANDING."  SPEAKING GENERALLY OF
STANDING, WE THERE SAID: 

"THE FUNDAMENTAL ASPECT OF STANDING IS THAT IT FOCUSES ON THE PARTY
SEEKING TO GET HIS COMPLAINT BEFORE A FEDERAL COURT AND NOT ON THE
ISSUES HE WISHES TO HAVE ADJUDICATED.  THE 'GIST OF THE QUESTION OF
STANDING' IS WHETHER THE PARTY SEEKING RELIEF HAS 'ALLEGED SUCH A
PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY AS TO ASSURE THAT
CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF ISSUES UPON
WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULT
CONSTITUTIONAL QUESTIONS.'  BAKER V. CARR, 369 U.S. 186, 204 (1962). 
IN OTHER WORDS, WHEN STANDING IS PLACED IN ISSUE IN A CASE, THE
QUESTION IS WHETHER THE PERSON WHOSE STANDING IS CHALLENGED IS A PROPER
PARTY TO REQUEST AN ADJUDICATION OF A PARTICULAR ISSUE AND NOT WHETHER
THE ISSUE ITSELF IS JUSTICIABLE."  ID., AT 99 - 100.  THE TWO-PRONGED
TEST FASHIONED BY FLAST WAS NOT A QUALIFICATION UPON THESE GENERAL
PRINCIPLES BUT WAS FASHIONED SOLELY AS A DETERMINANT OF STANDING OF
PLAINTIFFS ALLEGING ONLY INJURY AS TAXPAYERS WHO CHALLENGE ALLEGED
VIOLATIONS OF THE ESTABLISHMENT AND FREE EXERCISE CLAUSES OF THE FIRST
AMENDMENT.  SEE BARLOW V. COLLINS, SUPRA, AT 170 - 172.  THE EXTENSION
OF THAT TEST TO THE VERY DIFFERENT CHALLENGES HERE ONLY PRODUCES THE
CONFUSION EVIDENCED BY THE DIFFERING VIEWS OF THE FLAST TEST EXPRESSED
IN THE SEVERAL OPINIONS FILED TODAY IN THESE CASES.  OUTSIDE ITS PROPER
SPHERE, AS MY BROTHER POWELL SOUNDLY OBSERVES, THAT TEST IS NOT "A
RELIABLE INDICATOR OF WHEN A FEDERAL TAXPAYER HAS STANDING."  UNITED
STATES V. RICHARDSON, ANTE, AT 180.  WE AVOID THAT CONFUSION IF, AS I
SAID IN BARLOW, SUPRA, AT 176, WE RECOGNIZE:     "ALLEGED INJURY IN
FACT, REVIEWABILITY, AND THE MERITS POSE QUESTIONS THAT ARE LARGELY
DISTINCT FROM ONE ANOTHER, EACH GOVERNED BY ITS OWN CONSIDERATIONS.  TO
FAIL TO ISOLATE AND TREAT EACH INQUIRY INDEPENDENTLY OF THE OTHER TWO,
SO FAR AS POSSIBLE, IS TO RISK OBSCURING WHAT IS AT ISSUE IN A GIVEN
CASE, AND THUS TO RISK UNINFORMED, POORLY REASONED DECISIONS THAT MAY
RESULT IN INJUSTICE . . . . 

     "THE RISK OF AMBIGUITY AND INJUSTICE CAN BE MINIMIZED BY

  CLEANLY SEVERING, SO FAR AS POSSIBLE, THE INQUIRIES INTO

  REVIEWABILITY AND THE MERITS FROM THE DETERMINATION OF
STANDING." 

/1/  (THIS OPINION APPLIES ALSO TO NO. 72 - 885, UNITED STATES ET
AL. V. RICHARDSON, ANTE, P. 166.) 

MR. JUSTICE MARSHALL, DISSENTING. 

I AGREE WITH MY BROTHER DOUGLAS THAT RESPONDENTS HAVE STANDING AS
CITIZENS TO BRING THIS ACTION.  I CANNOT ACCEPT THE MAJORITY'S
CHARACTERIZATION OF RESPONDENTS'  COMPLAINT AS ALLEGING ONLY "INJURY IN
THE ABSTRACT" AND "'GENERALIZED GRIEVANCES'  ABOUT THE CONDUCT OF THE
GOVERNMENT."  ACCORDING TO THEIR COMPLAINT, RESPONDENTS ARE PRESENT AND
FORMER MEMBERS OF THE VARIOUS ARMED FORCES RESERVES 

"ORGANIZED FOR THE PURPOSE OF OPPOSING THE MILITARY INVOLVEMENT OF
THE UNITED STATES IN VIETNAM AND OF USING ALL LAWFUL MEANS TO END THAT
INVOLVEMENT, INCLUDING EFFORTS BY ITS MEMBERS INDIVIDUALLY TO PERSUADE
THE CONGRESS OF THE UNITED STATES AND ALL MEMBERS OF THE CONGRESS TO
TAKE ALL STEPS NECESSARY AND APPROPRIATE TO END THAT INVOLVEMENT."  THE
SPECIFIC INTEREST WHICH THEY THUS ASSERTED, AND WHICH THEY ALLEGED HAD
BEEN INFRINGED BY VIOLATIONS OF THE INCOMPATIBILITY CLAUSE, THOUGH
DOUBTLESS WIDELY SHARED, IS CERTAINLY NOT A "GENERAL INTEREST COMMON TO
ALL MEMBERS OF THE PUBLIC."  EX PARTE LEVITT, 302 U.S. 633, 634
(1937).  NOT ALL CITIZENS DESIRED TO HAVE THE CONGRESS TAKE ALL STEPS
NECESSARY TO TERMINATE AMERICAN INVOLVEMENT IN VIETNAM, AND NOT ALL
CITIZENS WHO SO DESIRED SOUGHT TO PERSUADE MEMBERS OF CONGRESS TO THAT
END. 

RESPONDENTS NEVERTHELESS HAD A RIGHT UNDER THE FIRST AMENDMENT TO
ATTEMPT TO PERSUADE CONGRESSMEN TO END THE WAR IN VIETNAM.  AND
RESPONDENTS HAVE ALLEGED A RIGHT, UNDER THE INCOMPATIBILITY CLAUSE, TO
HAVE THEIR ARGUMENTS CONSIDERED BY CONGRESSMEN NOT SUBJECT TO A
CONFLICT OF INTEREST BY VIRTUE OF THEIR POSITIONS IN THE ARMED FORCES
RESERVES.  RESPONDENTS' COMPLAINT THEREFORE STATES, IN MY VIEW, A CLAIM
OF DIRECT AND CONCRETE INJURY TO A JUDICIALLY COGNIZABLE INTEREST.  IT
IS A SAD COMMENTARY ON OUR PRIORITIES THAT A LITIGANT WHO CONTENDS THAT
A VIOLATION OF A FEDERAL STATUTE HAS INTERFERED WITH HIS AESTHETIC
APPRECIATION OF NATURAL RESOURCES CAN HAVE THAT CLAIM HEARD BY A
FEDERAL COURT, SEE UNITED STATES V. SCRAP, 412 U.S. 669, 687 (1973),
WHILE ONE WHO CONTENDS THAT A VIOLATION OF A SPECIFIC PROVISION OF THE
UNITED STATES CONSTITUTION HAS INTERFERED WITH THE EFFECTIVENESS OF
EXPRESSION PROTECTED BY THE FIRST AMENDMENT IS TURNED AWAY WITHOUT A
HEARING ON THE MERITS OF HIS CLAIM. 

I RESPECTFULLY DISSENT. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEF WERE ACTING ASSISTANT ATTORNEY GENERAL JAFFE, DEPUTY
SOLICITOR GENERAL FRIEDMAN, LEONARD SCHAITMAN, AND WILLIAM D. APPLER. 

WILLIAM A. DOBROVIR ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS.  /1/ 

/1/  THOMAS H. KING, MAURICE F. BIDDLE, AND HAROLD SHAPIRO FILED A
BRIEF FOR THE RESERVE OFFICERS ASSOCIATION OF THE UNITED STATES AS
AMICUS CURIAE. 
..END :
























MIAMI HERALD PUBLISHING CO. V. TORNILLO, 418 U.S. 241 


       MIAMI HERLAD PUBLISHING CO., DIVISION OF KNIGHT NEWSPAPERS,

           INC. V. TORNILLO

        APPEAL FROM THE SUPREME COURT OF FLORIDA

        NO. 73 - 797.  ARGUED APRIL 17, 1974--DECIDED JUNE 25,
1974;

           287 SO.2D 78, REVERSED. 


    AFTER APPELLANT NEWSPAPER HAD REFUSED TO PRINT APPELLEE'S

  REPLIES TO EDITORIALS CRITICAL OF APPELLEE'S CANDIDACY FOR STATE

  OFFICE, APPELLEE BROUGHT SUIT IN FLORIDA CIRCUIT COURT SEEKING

  INJUNCTIVE AND DECLARATORY RELIEF AND DAMAGES, BASED ON FLORIDA'S

  "RIGHT OF REPLY" STATUTE THAT GRANTS A POLITICAL CANDIDATE A

  RIGHT TO EQUAL SPACE TO ANSWER CRITICISM AND ATTACKS ON HIS

  RECORD BY A NEWSPAPER, AND MAKING IT A MISDEMEANOR FOR THE

  NEWSPAPER TO FAIL TO COMPLY.  THE CIRCUIT COURT HELD THE STATUTE

  UNCONSTITUTIONAL AS INFRINGING ON THE FREEDOM OF THE PRESS AND

DISMISSED THE ACTION.  THE FLORIDA SUPREME COURT REVERSED,

  HOLDING THAT THE STATUTE DID NOT VIOLATE CONSTITUTIONAL

  GUARANTEES, AND THAT CIVIL REMEDIES, INCLUDING DAMAGES, WERE

  AVAILABLE, AND REMANDED TO THE TRIAL COURT FOR FURTHER

  PROCEEDINGS.  HELD: 

     1.  THE FLORIDA SUPREME COURT'S JUDGMENT IS "FINAL" UNDER 28

  U.S.C. 1257, AND THUS IS RIPE FOR REVIEW BY THIS COURT.  NORTH

  DAKOTA PHARMACY BD. V. SNYDER'S STORES, 414 U.S. 156.  PP. 246 -

  247. 

     2.  THE STATUTE VIOLATES THE FIRST AMENDMENT'S GUARANTEE OF A
FREE PRESS.  PP. 247 - 258. 

     (A) GOVERNMENTAL COMPULSION ON A NEWSPAPER TO PUBLISH THAT

  WHICH "REASON"  TELLS IT SHOULD NOT BE PUBLISHED IS

  UNCONSTITUTIONAL.  P. 256. 

     (B) THE STATUTE OPERATES AS A COMMAND BY A STATE IN THE SAME

  SENSE AS A STATUTE OR REGULATION FORBIDDING APPELLANT TO PUBLISH

  SPECIFIED MATTER.  P. 256. 

     (C) THE STATUTE EXACTS A PENALTY ON THE BASIS OF THE CONTENT
OF

  A NEWSPAPER BY IMPOSING ADDITIONAL PRINTING, COMPOSING, AND

  MATERIALS COSTS AND BY TAKING UP SPACE THAT COULD BE DEVOTED TO

  OTHER MATERIAL THE NEWSPAPER MAY HAVE PREFERRED TO PRINT.  PP.

  256 - 257. 

(D) EVEN IF A NEWSPAPER WOULD FACE NO ADDITIONAL COSTS TO

COMPLY WITH THE STATUTE AND WOULD NOT BE FORCED TO FORGO

 PUBLICATION OF NEWS OR OPINION BY THE INCLUSION OF A REPLY, THE

  STATUTE STILL FAILS TO CLEAR THE FIRST AMENDMENT'S BARRIERS

  BECAUSE OF ITS INTRUSION INTO THE FUNCTION OF EDITORS IN CHOOSING

  WHAT MATERIALS GOES INTO A NEWSPAPER AND IN DECIDING ON THE SIZE

  AND CONTENT OF THE PAPER AND THE TREATMENT OF PUBLIC ISSUES AND

  OFFICIALS.  P. 258. 

BURGER, C. J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 
BRENNAN, J., FIELD A CONCURRING STATEMENT, IN WHICH REHNQUIST, J.,
JOINED, POST, P. 258.  WHITE, J., FILED A CONCURRING OPINION, POST, P.
259. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER A STATE STATUTE GRANTING A
POLITICAL CANDIDATE A RIGHT TO EQUAL SPACE TO REPLY TO CRITICISM AND
ATTACKS ON HIS RECORD BY A NEWSPAPER, VIOLATES THE GUARANTEES OF A FREE
PRESS. 

        I 

IN THE FALL OF 1972, APPELLEE, EXECUTIVE DIRECTOR OF THE CLASSROOM
TEACHERS ASSOCIATION, APPARENTLY A TEACHERS' COLLECTIVE-BARGAINING
AGENT, WAS A CANDIDATE FOR THE FLORIDA HOUSE OF REPRESENTATIVES.  ON
SEPTEMBER 20, 1972, AND AGAIN ON SEPTEMBER 29, 1972, APPELLANT PRINTED
EDITORIALS CRITICAL OF APPELLEE'S CANDIDACY.  /1/  IN RESPONSE TO THESE
EDITORIALS APPELLEE DEMANDED THAT APPELLANT PRINT VERBATIM HIS REPLIES,
DEFENDING THE ROLE OF THE CLASSROOM TEACHERS ASSOCIATION AND THE
ORGANIZATION'S ACCOMPLISHMENTS FOR THE CITIZENS OF DADE COUNTY. 
APPELLANT DECLINED TO PRINT THE APPELLEE'S REPLIES, AND APPELLEE
BROUGHT SUIT IN CIRCUIT COURT, DADE COUNTY, SEEKING DECLARATORY AND
INJUNCTIVE RELIEF AND ACTUAL AND PUNITIVE DAMAGES IN EXCESS OF $5,000. 
THE ACTION WAS PREMISED ON FLORIDA STATUTE 104.38 (1973), A "RIGHT OF
REPLY" STATUTE WHICH PROVIDES THAT IF A CANDIDATE FOR NOMINATION OR
ELECTION IS ASSAILED REGARDING HIS PERSONAL CHARACTER OR OFFICIAL
RECORD BY ANY NEWSPAPER, THE CANDIDATE HAS THE RIGHT TO DEMAND THAT THE
NEWSPAPER PRINT, FREE OF COST TO THE CANDIDATE, ANY REPLY THE CANDIDATE
MAY MAKE TO THE NEWSPAPER'S CHARGES.  THE REPLY MUST APPEAR IN AS
CONSPICUOUS A PLACE AND IN THE SAME KIND OF TYPE AS THE CHARGES WHICH
PROMPTED THE REPLY, PROVIDED IT DOES NOT TAKE UP MORE SPACE THAN THE
CHARGES.  FAILURE TO COMPLY WITH THE STATUTE A FIRST-DEGREE
MISDEMEANOR.  /2/ 

APPELLANT SOUGHT A DECLARATION THAT 104.38 WAS UNCONSTITUTIONAL. 
AFTER AN EMERGENCY HEARING REQUESTED BY APPELLEE, THE CIRCUIT COURT
DENIED INJUNCTIVE RELIEF BECAUSE, ABSENT SPECIAL CIRCUMSTANCES, NO
INJUNCTION COULD PROPERLY ISSUE AGAINST THE COMMISSION OF A CRIME, AND
HELD THAT 104.38 WAS UNCONSTITUTIONAL AS AN INFRINGEMENT ON THE FREEDOM
OF THE PRESS UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION.  38 FLA.SUPP.  80 (1972).  THE CIRCUIT COURT CONCLUDED
THAT DICTATING WHAT A NEWSPAPER MUST PRINT WAS NO DIFFERENT FROM
DICTATING WHAT IT MUST NOT PRINT.  THE CIRCUIT JUDGE VIEWED THE
STATUTE'S VAGUENESS AS SERVING "TO RESTRICT AND STIFLE PROTECTED
EXPRESSION."  ID., AT 83.  APPELLEE'S CAUSE WAS DISMISSED WITH
PREJUDICE. 

ON DIRECT APPEAL, THE FLORIDA SUPREME COURT REVERSED, HOLDING THAT
104.38 DID NOT VIOLATE CONSTITUTIONAL GUARANTEES.  287 SO.2D 78
(1973).  /3/  IT HELD THAT FREE SPEECH WAS ENHANCED AND NOT ABRIDGED BY
THE FLORIDA RIGHT-OF-REPLY STATUTE, WHICH IN THAT COURT'S VIEW,
FURTHERED THE "BROAD SOCIETAL INTEREST IN THE FREE FLOW OF INFORMATION
TO THE PUBLIC."  ID., AT 82.  IT ALSO HELD THAT THE STATUTE IS NOT
IMPERMISSIBLY VAGUE; THE STATUTE INFORMS "THOSE WHO ARE SUBJECT TO IT
AS TO WHAT CONDUCT ON THEIR PART WILL RENDER THEM LIABLE TO ITS
PENALTIES."  ID., AT 85.  /4/  CIVIL REMEDIES, INCLUDING DAMAGES, WERE
HELD TO BE AVAILABLE UNDER THIS STATUTE; THE CASE WAS REMANDED TO THE
TRIAL COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE FLORIDA
SUPREME COURT'S OPINION. 

WE POSTPONED CONSIDERATION OF THE QUESTION OF JURISDICTION TO THE
HEARING OF THE CASE ON THE MERITS.  414 U.S. 1142 (1974). 

        II 

ALTHOUGH BOTH PARTIES CONTEND THAT THIS COURT HAS JURISDICTION TO
REVIEW THE JUDGMENT OF THE FLORIDA SUPREME COURT, A SUGGESTION WAS
INITIALLY MADE THAT THE JUDGMENT OF THE FLORIDA SUPREME COURT MIGHT NOT
BE "FINAL" UNDER 28 U.S.C. 1257.  /5/  IN NORTH DAKOTA STATE PHARMACY
BD. V. SNYDER'S STORES, 414 U.S. 156 (1973), WE REVIEWED A JUDGMENT OF
THE NORTH DAKOTA SUPREME COURT, UNDER WHICH THE CASE HAD BEEN REMANDED
SO THAT FURTHER STATE PROCEEDINGS COULD BE CONDUCTED RESPECTING
SNYDER'S APPLICATION FOR A PERMIT TO OPERATE A DRUG STORE.  WE HELD
THAT TO BE A FINAL JUDGMENT FOR PURPOSES OF OUR JURISDICTION.  UNDER
THE PRINCIPLES OF FINALITY ENUNCIATED IN SNYDER'S STORES, THE JUDGMENT
OF THE FLORIDA SUPREME COURT IN THIS CASE IS RIPE FOR REVIEW BY THIS
COURT.  /6/

        III

 A 

THE CHALLENGED STATUTE CREATES A RIGHT TO REPLY TO PRESS CRITICISM
OF A CANDIDATE FOR NOMINATION OR ELECTION.  THE STATUTE WAS ENACTED IN
1913 AND THIS IS ONLY THE SECOND RECORDED CASE DECIDED UNDER ITS
PROVISIONS.  /7/ 

APPELLANT CONTENDS THE STATUTE IS VOID ON ITS FACE BECAUSE IT
PURPORTS TO REGULATE THE CONTENT OF A NEWSPAPER IN VIOLATION OF THE
FIRST AMENDMENT.  ALTERNATIVELY IT IS URGED THAT THE STATUTE IS VOID
FOR VAGUENESS SINCE NO EDITOR COULD KNOW EXACTLY WHAT WORDS WOULD CALL
THE STATUTE INTO OPERATION.  IT IS ALSO CONTENDED THAT THE STATUTE
FAILS TO DISTINGUISH BETWEEN CRITICAL COMMENT WHICH IS AND WHICH IS NOT
DEFAMATORY. 

        B 

THE APPELLEE AND SUPPORTING ADVOCATES OF AN ENFORCEABLE RIGHT OF
ACCESS TO THE PRESS VIGOROUSLY ARGUE THAT GOVERNMENT HAS AN OBLIGATION
TO ENSURE THAT A WIDE VARIETY OF VIEWS REACH THE PUBLIC.  /8/  THE
CONTENTIONS OF ACCESS PROPONENTS WILL BE SET OUT IN SOME DETAIL.  /9/
IT IS URGED THAT AT THE TIME THE FIRST AMENDMENT TO THE CONSTITUTION
/10/  WAS ENACTED IN 1791 AS PART OF OUR BILL OF RIGHTS THE PRESS WAS
BROADLY REPRESENTATIVE OF THE PEOPLE IT WAS SERVING.  WHILE MANY OF THE
NEWSPAPERS WERE INTENSELY PARTISAN AND NARROW IN THEIR VIEWS, THE PRESS
COLLECTIVELY PRESENTED A BROAD RANGE OF OPINIONS TO READERS.  ENTRY
INTO PUBLISHING WAS INEXPENSIVE; PAMPHLETS AND BOOKS PROVIDED
MEANINGFUL ALTERNATIVES TO THE ORGANIZED PRESS FOR THE EXPRESSION OF
UNPOPULAR IDEAS AND OFTEN TREATED EVENTS AND EXPRESSED VIEWS NOT
COVERED BY CONVENTIONAL NEWSPAPERS.  /11/  A TRUE MARKETPLACE OF IDEAS
EXISTED IN WHICH THERE WAS RELATIVELY EASY ACCESS TO THE CHANNELS OF
COMMUNICATION. 

ACCESS ADVOCATES SUBMIT THAT ALTHOUGH NEWSPAPERS OF THE PRESENT ARE
SUPERFICIALLY SIMILAR TO THOSE OF 1791 THE PRESS OF TODAY IS IN REALITY
VERY DIFFERENT FROM THAT KNOWN IN THE EARLY YEARS OF OUR NATIONAL
EXISTENCE.  IN THE PAST HALF CENTURY A COMMUNICATIONS REVOLUTION HAS
SEEN THE INTRODUCTION OF RADIO AND TELEVISION INTO OUR LIVES, THE
PROMISE OF A GLOBAL COMMUNITY THROUGH THE USE OF COMMUNICATIONS
SATELLITES, AND THE SPECTER OF A "WIRED" NATION BY MEANS OF AN
EXPANDING CABLE TELEVISION NETWORK WITH TWO-WAY CAPABILITIES.  THE
PRINTED PRESS, IT IS SAID, HAS NOT ESCAPED THE EFFECTS OF THIS
REVOLUTION.  NEWSPAPERS HAVE BECOME BIG BUSINESS AND THERE ARE FAR
FEWER OF THEM TO SERVE A LARGER LITERATE POPULATION.  /12/  CHAINS OF
NEWSPAPERS, NATIONAL NEWSPAPERS, NATIONAL WIRE AND NEWS SERVICES, AND
ONE-NEWSPAPER TOWNS, /13/  ARE THE DOMINANT FEATURES OF A PRESS THAT
HAS BECOME NONCOMPETITIVE AND ENORMOUSLY POWERFUL AND INFLUENTIAL IN
ITS CAPACITY TO MANIPULATE POPULAR OPINION AND CHANGE THE COURSE OF
EVENTS.  MAJOR METROPOLITAN NEWSPAPERS HAVE COLLABORATED TO ESTABLISH
NEWS SERVICES NATIONAL IN SCOPE.  /14/  SUCH NATIONAL NEWS
ORGANIZATIONS PROVIDE SYNDICATED "INTERPRETIVE REPORTING" AS WELL AS
SYNDICATED FEATURES AND COMMENTARY, ALL OF WHICH CAN SERVE AS PART OF
THE NEW SCHOOL OF "ADVOCACY JOURNALISM." 

THE ELIMINATION OF COMPETING NEWSPAPERS IN MOST OF OUR LARGE CITIES,
AND THE CONCENTRATION OF CONTROL OF MEDIA THAT RESULTS FROM THE ONLY
NEWSPAPER'S BEING OWNED BY THE SAME INTERESTS WHICH OWN A TELEVISION
STATION AND A RADIO STATION, ARE IMPORTANT COMPONENTS OF THIS TREND
TOWARD CONCENTRATION OF CONTROL OF OUTLETS TO INFORM THE PUBLIC. 

THE RESULT OF THESE VAST CHANGES HAS BEEN TO PLACE IN A FEW HANDS
THE POWER TO INFORM THE AMERICAN PEOPLE AND SHAPE PUBLIC OPINION.  /15/
MUCH OF THE EDITORIAL OPINION AND COMMENTARY THAT IS PRINTED IS THAT
OF SYNDICATED COLUMNISTS DISTRIBUTED NATIONWIDE AND, AS A RESULT, WE
ARE TOLD, ON NATIONAL AND WORLD ISSUES THERE TENDS TO BE A HOMOGENEITY
OF EDITORIAL OPINION, COMMENTARY, AND INTERPRETIVE ANALYSIS.  THE
ABUSES OF BIAS AND MANIPULATIVE REPORTAGE ARE, LIKEWISE, SAID TO BE THE
RESULT OF THE VAST ACCUMULATIONS OF UNREVIEWABLE POWER IN THE MODERN
MEDIA EMPIRES.  IN EFFECT, IT IS CLAIMED, THE PUBLIC HAS LOST ANY
ABILITY TO RESPOND OR TO CONTRIBUTE IN A MEANINGFUL WAY TO THE DEBATE
ON ISSUES.  THE MONOPOLY OF THE MEANS OF COMMUNICATION ALLOWS FOR
LITTLE OR NO CRITICAL ANALYSIS OF THE MEDIA EXCEPT IN PROFESSIONAL
JOURNALS OF VERY LIMITED READERSHIP. 

     "THIS CONCENTRATION OF NATIONWIDE NEWS ORGANIZATIONS--LIKE

  OTHER LARGE INSTITUTIONS--HAS GROWN INCREASINGLY REMOTE FROM AND

  UNRESPONSIVE TO THE POPULAR CONSTITUENCIES ON WHICH THEY DEPEND

AND WHICH DEPEND ON THEM."  REPORT OF THE TASK FORCE IN TWENTIETH

  CENTURY FUND TASK FORCE REPORT FOR A NATIONAL NEWS COUNCIL, A

  FREE AND RESPONSIVE PRESS 4 (1973). 

APPELLEE CITES THE REPORT OF THE COMMISSION ON FREEDOM OF THE PRESS,
CHAIRED BY ROBERT M. HUTCHINS, IN WHICH IT WAS STATED, AS LONG AGO AS
1947, THAT "(THE RIGHT OF FREE PUBLIC EXPRESSION HAS . . . LOST ITS
EARLIER REALITY."  COMMISSION ON FREEDOM OF THE PRESS, A FREE AND
RESPONSIBLE PRESS 15 (1947). 

THE OBVIOUS SOLUTION, WHICH WAS AVAILABLE TO DISSIDENTS AT AN
EARLIER TIME WHEN ENTRY INTO PUBLISHING WAS RELATIVELY INEXPENSIVE,
TODAY WOULD BE TO HAVE ADDITIONAL NEWSPAPERS.  BUT THE SAME ECONOMIC
FACTORS WHICH HAVE CAUSED THE DISAPPEARANCE OF VAST NUMBERS OF
METROPOLITAN NEWSPAPERS, /16/  HAVE MADE ENTRY INTO THE MARKETPLACE OF
IDEAS SERVED BY THE PRINT MEDIA ALMOST IMPOSSIBLE.  IT IS URGED THAT
THE CLAIM OF NEWSPAPERS TO BE "SURROGATES FOR THE PUBLIC"  CARRIES WITH
IT A CONCOMITANT FIDUCIARY OBLIGATION TO ACCOUNT FOR THAT STEWARDSHIP. 
/17/  FROM THIS PREMISE IT IS REASONED THAT THE ONLY EFFECTIVE WAY TO
INSURE FAIRNESS AND ACCURACY AND TO PROVIDE FOR SOME ACCOUNTABILITY IS
FOR GOVERNMENT TO TAKE AFFIRMATIVE ACTION.  THE FIRST AMENDMENT
INTEREST OF THE PUBLIC IN BEING INFORMED IS SAID TO BE IN PERIL BECAUSE
THE "MARKETPLACE OF IDEAS" IS TODAY A MONOPOLY CONTROLLED BY THE OWNERS
OF THE MARKET. 

PROPONENTS OF ENFORCED ACCESS TO THE PRESS TAKE COMFORT FROM
LANGUAGE IN SEVERAL OF THIS COURT'S DECISIONS WHICH SUGGESTS THAT THE
FIRST AMENDMENT ACTS AS A SWORD AS WELL AS A SHIELD, THAT IT IMPOSES
OBLIGATIONS ON THE OWNERS OF THE PRESS IN ADDITION TO PROTECTING THE
PRESS FROM GOVERNMENT REGULATION.  IN ASSOCIATED PRESS V. UNITED
STATES, 326 U.S. 1, 20 (1945), THE COURT, IN REJECTING THE ARGUMENT
THAT THE PRESS IS IMMUNE FROM THE ANTITRUST LAWS BY VIRTUE OF THE FIRST
AMENDMENT, STATED: 

"THE FIRST AMENDMENT, FAR FROM PROVIDING AN ARGUMENT AGAINST
APPLICATION OF THE SHERMAN ACT, HERE PROVIDES POWERFUL REASONS TO THE
CONTRARY.  THAT AMENDMENT RESTS ON THE ASSUMPTION THAT THE WIDEST
POSSIBLE DISSEMINATION OF INFORMATION FROM DIVERSE AND ANTAGONISTIC
SOURCES IS ESSENTIAL TO THE WELFARE OF THE PUBLIC, THAT A FREE PRESS IS
A CONDITION OF A FREE SOCIETY.  SURELY A COMMAND THAT THE GOVERNMENT
ITSELF SHALL NOT IMPEDE THE FREE FLOW OF IDEAS DOES NOT AFFORD NON
GOVERNMENTAL COMBINATIONS A REFUGE IF THEY IMPOSE RESTRAINTS UPON THAT
CONSTITUTIONALLY GUARANTEED FREEDOM.  FREEDOM TO PUBLISH MEANS FREEDOM
FOR ALL AND NOT FOR SOME.  FREEDOM TO PUBLISH IS GUARANTEED BY THE
CONSTITUTION, BUT FREEDOM TO COMBINE TO KEEP OTHERS FROM PUBLISHING IS
NOT.  FREEDOM OF THE PRESS FROM GOVERNMENTAL INTERFERENCE UNDER THE
FIRST AMENDMENT DOES NOT SANCTION REPRESSION OF THAT FREEDOM BY PRIVATE
INTERESTS."  (FOOTNOTE OMITTED.) 

IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 270 (1964), THE
COURT SPOKE OF "A PROFOUND NATIONAL COMMITMENT TO THE PRINCIPLE THAT
DEBATE ON PUBLIC ISSUES SHOULD BE UNINHIBITED, ROBUST, AND WIDE-OPEN." 
IT IS ARGUED THAT THE "UNINHIBITED, ROBUST" DEBATE IS NOT "WIDE-OPEN"
BUT OPEN ONLY TO A MONOPOLY IN CONTROL OF THE PRESS.  APPELLEE CITES
THE PLURALITY OPINION IN ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29,
47, AND N. 15 (1971), WHICH HE SUGGESTS SEEMED TO INVITE
EXPERIMENTATION BY THE STATES IN RIGHT-TO-ACCESS REGULATION OF THE
PRESS.  /18/ 

ACCESS ADVOCATES NOT THAT MR. JUSTICE DOUGLAS A DECADE AGO EXPRESSED
HIS DEEP CONCERN REGARDING THE EFFECTS OF NEWSPAPER MONOPOLIES: 

"WHERE ONE PAPER HAS A MONOPOLY IN AN AREA, IT SELDOM PRESENTS TWO
SIDES OF AN ISSUE.  IT TOO OFTEN HAMMERS AWAY ON ONE IDEALOGICAL OR
POLITICAL LINE USING ITS MONOPOLY POSITION NOT TO EDUCATE PEOPLE, NOT
TO PROMOTE DEBATE, BUT TO INCULCATE IN ITS READERS ONE PHILOSOPHY, ONE
ATTITUDE--AND TO MAKE MONEY."  "THE NEWSPAPERS THAT GIVE A VARIETY OF
VIEWS AND NEWS THAT IS NOT SLANTED OR CONTRIVED ARE FEW INDEED.  AND
THE PROBLEM PROMISES TO GET WORSE . . . ."  THE GREAT RIGHTS 124 - 125,
127 (E. CAHN ED. 1963).  THEY ALSO CLAIM THE QUALIFIED SUPPORT OF
PROFESSOR THOMAS I. EMERSON, WHO HAS WRITTEN THAT "(A) LIMITED RIGHT OF
ACCESS TO THE PRESS CAN BE SAFELY ENFORCED,"  ALTHOUGH HE BELIEVES THAT
"(GOVERNMENT MEASURES TO ENCOURAGE A MULTIPLICITY OF OUTLETS, RATHER
THAN COMPELLING A FEW OUTLETS TO REPRESENT EVERYBODY, SEEMS A
PREFERABLE COURSE OF ACTION."  T. EMERSON, THE SYSTEM OF FREEDOM OF
EXPRESSION 671 (1970). 

        IV 

HOWEVER MUCH VALIDITY MAY BE FOUND IN THESE ARGUMENTS, AT EACH POINT
THE IMPLEMENTATION OF A REMEDY SUCH AS AN ENFORCEABLE RIGHT OF ACCESS
NECESSARILY CALLS FOR SOME MECHANISM, EITHER GOVERNMENTAL OR
CONSENSUAL.  /19/  IF IT IS GOVERNMENTAL COERCION, THIS AT ONCE BRINGS
ABOUT A CONFRONTATION WITH THE EXPRESS PROVISIONS OF THE FIRST
AMENDMENT AND THE JUDICIAL GLOSS ON THAT AMENDMENT DEVELOPED OVER THE
YEARS.  /20/     THE COURT FORESAW THE PROBLEMS RELATING TO GOVERNMENT
ENFORCED ACCESS AS EARLY AS ITS DECISION IN ASSOCIATED PRESS V. UNITED
STATES, SUPRA.  THERE IT CAREFULLY CONTRASTED THE PRIVATE "COMPULSION
TO PRINT" CALLED FOR BY THE ASSOCIATION'S BYLAWS WITH THE PROVISIONS OF
THE DISTRICT COURT DECREE AGAINST APPELLANTS WHICH "DOES NOT COMPEL AP
OR ITS MEMBERS TO PERMIT PUBLICATION OF ANYTHING WHICH THEIR 'REASON'
TELLS THEM SHOULD NOT BE PUBLISHED."  326 U.S., AT 20 N. 18.  IN
BRANZBURG V. HAYES, 408 U.S. 665, 681 (1972), WE EMPHASIZED THAT THE
CASES THEN BEFORE US "INVOLVE NO INTRUSIONS UPON SPEECH OR ASSEMBLY, NO
PRIOR RESTRAINT OR RESTRICTION ON WHAT THE PRESS MAY PUBLISH, AND NO
EXPRESS OR IMPLIED COMMAND THAT THE PRESS PUBLISH WHAT IT PREFERS TO
WITHHOLD."  IN COLUMBIA BROADCASTING SYSTEM, INC. V. DEMOCRATIC
NATIONAL COMMITTEE, 412 U.S. 94, 117 (1973), THE PLURALITY OPINION AS
TO PART III NOTED: 

"THE POWER OF A PRIVATELY OWNED NEWSPAPER TO ADVANCE ITS OWN
POLITICAL, SOCIAL, AND ECONOMIC VIEWS IS BOUNDED BY ONLY TWO FACTORS:
FIRST, THE ACCEPTANCE OF A SUFFICIENT NUMBER OF READERS--AND HENCE
ADVERTISERS--TO ASSURE FINANCIAL SUCCESS; AND, SECOND, THE JOURNALISTIC
INTEGRITY OF ITS EDITORS AND PUBLISHERS."  AN ATTITUDE STRONGLY ADVERSE
TO ANY ATTEMPT TO EXTEND A RIGHT OF ACCESS TO NEWSPAPERS WAS ECHOED BY
SEVERAL MEMBERS OF THIS COURT IN THEIR SEPARATE OPINIONS IN THAT CASE. 
ID., AT 145 (STEWART, J., CONCURRING); ID., AT 182 N. 12 (BRENNAN, J.,
DISSENTING).  RECENTLY, WHILE APPROVING A BAR AGAINST EMPLOYMENT
ADVERTISING SPECIFYING "MALE" OR "FEMALE" PREFERENCE, THE COURT'S
OPINION IN PITTSBURGH PRESS CO. V. HUMAN RELATIONS COMM'N, 413 U.S.
376, 391 (1973), TOOK PAINS TO LIMIT ITS HOLDING WITHIN NARROW BOUNDS: 

"NOR, A FORTIORI, DOES OUR DECISION AUTHORIZE ANY RESTRICTION
WHATEVER, WHETHER OF CONTENT OR LAYOUT, ON STORIES OR COMMENTARY
ORIGINATED BY PITTSBURGH PRESS, ITS COLUMNISTS, OR ITS CONTRIBUTORS. 
ON THE CONTRARY, WE REAFFIRM UNEQUIVOCALLY THE PROTECTION AFFORDED TO
EDITORIAL JUDGMENT AND TO THE FREE EXPRESSION OF VIEWS ON THESE AND
OTHER ISSUES, HOWEVER CONTROVERSIAL."  DISSENTING IN PITTSBURGH PRESS,
MR. JUSTICE STEWART, JOINED BY MR. JUSTICE DOUGLAS, EXPRESSED THE VIEW
THAT NO "GOVERNMENT AGENCY--LOCAL, STATE, OR FEDERAL--CAN TELL A
NEWSPAPER IN ADVANCE WHAT IT CAN PRINT AND WHAT IT CANNOT."  ID., AT
400.  SEE ASSOCIATES & ALDRICH CO. V. TIMES MIRROR CO., 440 F.2D 133,
135 (CA9 1971). 

WE SEE THAT BEGINNING WITH ASSOCIATED PRESS, SUPRA, THE COURT HAS
EXPRESSED SENSITIVITY AS TO WHETHER A RESTRICTION OR REQUIREMENT
CONSTITUTED THE COMPULSION EXERTED BY GOVERNMENT ON A NEWSPAPER TO
PRINT THAT WHICH IT WOULD NOT OTHERWISE PRINT.  THE CLEAR IMPLICATION
HAS BEEN THAT ANY SUCH A COMPULSION TO PUBLISH THAT WHICH "'REASON'
TELLS THEM SHOULD NOT BE PUBLISHED" IS UNCONSTITUTIONAL.  A RESPONSIBLE
PRESS IS AN UNDOUBTEDLY DESIRABLE GOAL, BUT PRESS RESPONSIBILITY IS NOT
MANDATED BY THE CONSTITUTION AND LIKE MANY OTHER VIRTUES IT CANNOT BE
LEGISLATED. 

APPELLEE'S ARGUMENT THAT THE FLORIDA STATUTE DOES NOT AMOUNT TO A
RESTRICTION OF APPELLANT'S RIGHT TO SPEAK BECAUSE "THE STATUTE IN
QUESTION HERE HAS NOT PREVENTED THE MIAMI HERALD FROM SAYING ANYTHING
IT WISHED"  /21/  BEGS THE CORE QUESTION.  COMPELLING EDITORS OR
PUBLISHERS TO PUBLISH THAT WHICH "'REASON' TELLS THEM SHOULD NOT BE
PUBLISHED" IS WHAT IS AT ISSUE IN THIS CASE.  THE FLORIDA STATUTE
OPERATES AS A COMMAND IN THE SAME SENSE AS A STATUTE OR REGULATION
FORBIDDING APPELLANT TO PUBLISH SPECIFIED MATTER.  GOVERNMENTAL
RESTRAINT ON PUBLISHING NEED NOT FALL INTO FAMILIAR OR TRADITIONAL
PATTERNS TO BE SUBJECT TO CONSTITUTIONAL LIMITATIONS ON GOVERNMENTAL
POWERS.  GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 244 - 245
(1936).  THE FLORIDA STATUTE EXACTS A PENALTY ON THE BASIS OF THE
CONTENT OF A NEWSPAPER.  THE FIRST PHASE OF THE PENALTY RESULTING FROM
THE COMPELLED PRINTING OF A REPLY IS EXACTED IN TERMS OF THE COST IN
PRINTING AND COMPOSING TIME AND MATERIALS AND IN TAKING UP SPACE THAT
COULD BE DEVOTED TO OTHER MATERIAL THE NEWSPAPER MAY HAVE PREFERRED TO
PRINT.  IT IS CORRECT, AS APPELLEE CONTENDS, THAT A NEWSPAPER IS NOT
SUBJECT TO THE FINITE TECHNOLOGICAL LIMITATIONS OF TIME THAT CONFRONT A
BROADCASTER BUT IT IS NOT CORRECT TO SAY THAT, AS AN ECONOMIC REALITY,
A NEWSPAPER CAN PROCEED TO INFINITE EXPANSION OF ITS COLUMN SPACE TO
ACCOMMODATE THE REPLIES THAT A GOVERNMENT AGENCY DETERMINES OR A
STATUTE COMMANDS THE READERS SHOULD HAVE AVAILABLE.  /22/ 

FACED WITH THE PENALTIES THAT WOULD ACCRUE TO ANY NEWSPAPER THAT
PUBLISHED NEWS OR COMMENTARY ARGUABLY WITHIN THE REACH OF THE RIGHT-OF
ACCESS STATUTE, EDITORS MIGHT WELL CONCLUDE THAT THE SAFE COURSE IS TO
AVOID CONTROVERSY.  THEREFORE, UNDER THE OPERATION OF THE FLORIDA
STATUTE, POLITICAL AND ELECTORAL COVERAGE WOULD BE BLUNTED OR REDUCED. 
/23/  GOVERNMENT-ENFORCED RIGHT OF ACCESS INESCAPABLY "DAMPENS THE
VIGOR AND LIMITS THE VARIETY OF PUBLIC DEBATE," NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S., AT 279.  THE COURT, IN MILLS V. ALABAMA, 384 U.S.
214, 218 (1966), STATED: 

"THERE IS PRACTICALLY UNIVERSAL AGREEMENT THAT A MAJOR PURPOSE OF
(THE FIRST) AMENDMENT WAS TO PROTECT THE FREE DISCUSSION OF
GOVERNMENTAL AFFAIRS.  THIS OF COURSE INCLUDES DISCUSSIONS OF
CANDIDATES . . . ." 

EVEN IF A NEWSPAPER WOULD FACE NO ADDITIONAL COSTS TO COMPLY WITH A
COMPULSORY ACCESS LAW AND WOULD NOT BE FORCED TO FORGO PUBLICATION OF
NEWS OR OPINION BY THE INCLUSION OF A REPLY, THE FLORIDA STATUTE FAILS
TO CLEAR THE BARRIERS OF THE FIRST AMENDMENT BECAUSE OF ITS INTRUSION
INTO THE FUNCTION OF EDITORS.  A NEWSPAPER IS MORE THAN A PASSIVE
RECEPTACLE OR CONDUIT FOR NEWS, COMMENT, AND ADVERTISING.  /24/  THE
CHOICE OF MATERIAL TO GO INTO A NEWSPAPER, AND THE DECISIONS MADE AS TO
LIMITATIONS ON THE SIZE AND CONTENT OF THE PAPER, AND TREATMENT OF
PUBLIC ISSUES AND PUBLIC OFFICIALS--WHETHER FAIR OR UNFAIR--CONSTITUTE
THE EXERCISE OF EDITORIAL CONTROL AND JUDGMENT.  IT HAS YET TO BE
DEMONSTRATED HOW GOVERNMENTAL REGULATION OF THIS CRUCIAL PROCESS CAN BE
EXERCISED CONSISTENT WITH FIRST AMENDMENT GUARANTEES OF A FREE PRESS AS
THEY HAVE EVOLVED TO THIS TIME.  ACCORDINGLY, THE JUDGMENT OF THE
SUPREME COURT OF FLORIDA IS REVERSED. 

              IT IS SO ORDERED. 

/1/  THE TEXT OF THE SEPTEMBER 20, 1972, EDITORIAL IS AS FOLLOWS:

        "THE STATE'S LAWS AND PAT TORNILLO 

"LOOK WHO'S UPHOLDING THE LAW. 

"PAT TORNILLO, BOSS OF THE CLASSROOM TEACHERS ASSOCIATION AND
CANDIDATE FOR THE STATE LEGISLATURE IN THE OCT. 3 RUNOFF ELECTION, HAS
DENOUNCED HIS OPPONENT AS LACKING 'THE KNOWLEDGE TO BE A LEGISLATOR, AS
EVIDENCED BY HIS FAILURE TO FILE A LIST OF CONTRIBUTIONS TO AND
EXPENDITURES OF HIS CAMPAIGN AS REQUIRED BY LAW.' 

"CZAR TORNILLO CALLS 'VIOLATION OF THIS LAW INEXCUSABLE.' 

THIS IS THE SAME PAT TORNILLO WHO LED THE CTA STRIKE FROM FEBRUARY
19 TO MARCH 11, 1968, AGAINST THE SCHOOL CHILDREN AND TAXPAYERS OF DADE
COUNTY.  CALL IT WHATEVER YOU WILL, IT WAS AN ILLEGAL ACT AGAINST THE
PUBLIC INTEREST AND CLEARLY PROHIBITED BY THE STATUTES. 

"WE CANNOT SAY IT WOULD BE ILLEGAL BUT CERTAINLY IT WOULD BE
INEXCUSABLE OF THE VOTERS IF THEY SENT PAT TORNILLO TO TALLAHASSEE TO
OCCUPY THE SEAT FOR DISTRICT 103 IN THE HOUSE OF REPRESENTATIVES." 

THE TEXT OF THE SEPTEMBER 29, 1972, EDITORIAL IS AS FOLLOWS: 

"FROM THE PEOPLE WHO BROUGHT YOU THIS--THE TEACHER STRIKE OF '68-
COME NOW INSTRUCTIONS ON HOW TO VOTE FOR RESPONSIBLE GOVERNMENT, I.E.,
AGAINST CRUTCHER HARRISON AND ETHEL BECKHAM, FOR PAT TORNILLO.  THE
TRACTS AND BLURBS AND BUMPER STICKERS PILE UP DAILY IN TEACHERS' SCHOOL
MAILBOXES AMIDST CONTINUING POUTS THAT THE SCHOOL BOARD SHOULD BE
DELIVERING ALL THIS AT YOUR EXPENSE.  THE SCREEDS SAY THE STRIKE IS NOT
AN ISSUE.  WE SAY MAYBE IT WOULDN'T BE WERE IT NOT A PART OF A
CONTINUATION OF DISREGARD OF ANY AND ALL LAWS THE CTA MIGHT FIND
AGGRAVATING.  WHETHER IN DEFIANCE OF ZONING LAWS AT CTA TOWERS,
CONTRACTS AND LAWS DURING THE STRIKE, OR MORE RECENTLY STATE
PROHIBITIONS AGAINST SOLICITING CAMPAIGN FUNDS AMONGST TEACHERS, CTA
SAYS FIE AND TRY AND SUE US--WHAT'S GOOD FOR CTA IS GOOD FOR CTA AND
THAT IS NATURAL LAW.  TORNILLO'S LAW, MAYBE.  FOR YEARS NOW HE HAS BEEN
KICKING THE PUBLIC SHIN TO CALL ATTENTION TO HIS SHAKEDOWN
STATEMANSHIP.  HE AND WHICHEVER ACERBIC PREXY IS IN ALLEGED OFFICE HAVE
ALWAYS FELT THEIR PRIVATE VENTURES SO CHOCK-FULL OF PUBLIC WEAL THAT WE
SHOULD LEAP AT THE CHANCE TO NAB THE TAB, BE IT HALF THE GLORIOUS
LEADER'S SALARY OR THE DUES CHECKOFF OR ANYTHING ELSE EXCEPT PERHAPS
MILEAGE ON THE STAFF HYDROFOIL.  GIVE HIM PUBLIC OFFICE, SAYS PAT, AND
HE WILL NO DOUBT LIVE BY THE GOLDEN RULE.  OUR TRANSLATION READS THAT
AS MORE GOLD AND MORE RULE." 

/2/  "104.38 NEWSPAPER ASSAILING CANDIDATE IN AN ELECTION; SPACE FOR
REPLY--IF ANY NEWSPAPER IN ITS COLUMNS ASSAILS THE PERSONAL CHARACTER
OF ANY CANDIDATE FOR NOMINATION OR FOR ELECTION IN ANY ELECTION, OR
CHARGES SAID CANDIDATE WITH MALFEASANCE OR MISFEASANCE IN OFFICE, OR
OTHERWISE ATTACKS HIS OFFICIAL RECORD, OR GIVES TO ANOTHER FREE SPACE
FOR SUCH PURPOSE, SUCH NEWSPAPER SHALL UPON REQUEST OF SUCH CANDIDATE
IMMEDIATELY PUBLISH FREE OF COST ANY REPLY HE MAY MAKE THERETO IN AS
CONSPICUOUS A PLACE AND IN THE SAME KIND OF TYPE AS THE MATTER THAT
CALLS FOR SUCH REPLY, PROVIDED SUCH REPLY DOES NOT TAKE UP MORE SPACE
THAN THE MATTER REPLIED TO.  ANY PERSON OR FIRM FAILING TO COMPLY WITH
THE PROVISIONS OF THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR OF THE
FIRST DEGREE, PUNISHABLE AS PROVIDED IN 775.082 OR 775.083." 

/3/  THE SUPREME COURT DID NOT DISTRUB THE CIRCUIT COURT'S HOLDING
THAT INJUNCTIVE RELIEF WAS NOT PROPER IN THIS CASE EVEN IF THE STATUTE
WERE CONSTITUTIONAL.  ACCORDING TO THE SUPREME COURT NEITHER SIDE TOOK
ISSUE WITH THAT PART OF THE CIRCUIT COURT'S DECISION.  287 SO.2D,AT
85. 

/4/  THE SUPREME COURT PLACED THE FOLLOWING LIMITING CONSTRUCTION ON
THE STATUTE: 

"(WE HOLD THAT THE MANDATE OF THE STATUTE REFERS TO 'ANY REPLY'
WHICH IS WHOLLY RESPONSIVE TO THE CHARGE MADE IN THE EDITORIAL OR OTHER
ARTICLE IN A NEWSPAPER BEING REPLIED TO AND FURTHER THAT SUCH REPLY
WILL BE NEITHER LIBELOUS NOR SLANDEROUS OF THE PUBLICATION NOR ANYONE
ELSE, NOR VULGAR NOR PROFANE."  ID., AT 86. 

/5/  APPELLEE'S RESPONSE TO APPELLANT'S JURISDICTIONAL STATEMENT AND
MOTION TO AFFIRM THE JUDGMENT BELOW OR, IN THE ALTERNATIVE, TO DISMISS
THE APPEAL 4 - 7. 

/6/  BOTH APPELLANT AND APPELLEE CLAIM THAT THE UNCERTAINTY OF THE
CONSTITUTIONAL VALIDITY OF 104.38 RESTRICTS THE PRESENT EXERCISE OF
FIRST AMENDMENT RIGHTS.  BRIEF FOR APPELLANT 41; BRIEF FOR APPELLEE
79.  APPELLANT FINDS URGENCY FOR THE PRESENT CONSIDERATION OF THE
CONSTITUTIONALITY OF THE STATUTE IN THE UPCOMING 1974 ELECTIONS. 
WHICHEVER WAY WE WERE TO DECIDE ON THE MERITS, IT WOULD BE INTOLERABLE
TO LEAVE UNANSWERED, UNDER THESE CIRCUMSTANCES, AN IMPORTANT QUESTION
OF FREEDOM OF THE PRESS UNDER THE FIRST AMENDMENT; AN UNEASY AND
UNSETTLED CONSTITUTIONAL POSTURE OF 104.38 COULD ONLY FURTHER HARM THE
OPERATION OF A FREE PRESS.  MILLS V. ALABAMA, 384 U.S. 214, 221 - 222
(1966) (DOUGLAS, J., CONCURRING).  SEE ALSO ORGANIZATION FOR A BETTER
AUSTIN V. KEEFE, 402 U.S. 415, 418 N. (1971). 

/7/  IN ITS FIRST COURT TEST THE STATUTE WAS DECLARED
UNCONSTITUTIONAL.  STATE V. NEWS-JOURNAL CORP., 36 FLA.SUPP.  164
(VOLUSIA COUNTY JUDGE'S COURT, FLA. 1972).  IN NEITHER OF THE TWO
SUITS, THE INSTANT ACTION AND THE 1972 ACTION, HAS THE FLORIDA ATTORNEY
GENERAL DEFENDED THE STATUTE'S CONSTITUTIONALITY. 

/8/  SEE GENERALLY BARRON, ACCESS TO THE PRESS--A NEW FIRST
AMENDMENT RIGHT, 80 HARV.L.REV.  1641 (1967). 

/9/  FOR A GOOD OVERVIEW OF THE POSITION OF ACCESS ADVOCATES SEE
LANGE, THE ROLE OF THE ACCESS DOCTRINE IN THE REGULATION OF THE MASS
MEDIA:  A CRITICAL REVIEW AND ASSESSMENT, 52 N.C.L.REV.  1, 8 - 9
(1973) (HEREINAFTER LANGE). 

/10/  "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 OF THE RIGHT OF THE PEOPLE
PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A REDRESS OF
GRIEVANCES." 

/11/  SEE COMMISSION ON FREEDOM OF THE PRESS, A FREE AND RESPONSIBLE
PRESS 14 (1947) (HEREINAFTER SOMETIMES COMMISSION). 

/12/  COMMISSION 15.  EVEN IN THE LAST 20 YEARS THERE HAS BEEN A
SIGNIFICANT INCREASE IN THE NUMBER OF PEOPLE LIKELY TO READ
NEWSPAPERS.  BAGDIKIAN, FAT NEWSPAPERS AND SLIM COVERAGE, COLUMBIA
JOURNALISM REVIEW 15, 16 (SEPT./OCT.  1973). 

/13/  "NEARLY HALF OF U.S. DAILY NEWSPAPERS, REPRESENTING SOME THREE
FIFTHS OF DAILY AND SUNDAY CIRCULATION, ARE OWNED BY NEWSPAPER GROUPS
AND CHAINS, INCLUDING DIVERSIFIED BUSINESS CONGLOMERATES.  ONE
NEWSPAPER TOWNS HAVE BECOME THE RULE, WITH EFFECTIVE COMPETITION
OPERATING IN ONLY 4 PERCENT OF OUR LARGE CITIES."  BACKGROUND PAPER BY
ALFRED BALK IN TWENTIETH CENTURY FUND TASK FORCE REPORT FOR A NATIONAL
NEWS COUNCIL, A FREE AND RESPONSIVE PRESS 18 (1973). 

/14/  REPORT OF THE TASK FORCE IN TWENTIETH CENTURY FUND TASK FORCE
REPORT FOR A NATIONAL NEWS COUNCIL, A FREE AND RESPONSIVE PRESS 4
(1973). 

/15/  "LOCAL MONOPOLY IN PRINTED NEWS RAISES SERIOUS QUESTIONS OF
DIVERSITY OF INFORMATION AND OPINION.  WHAT A LOCAL NEWSPAPER DOES NOT
PRINT ABOUT LOCAL AFFAIRS DOES NOT SEE GENERAL PRINT AT ALL.  AND,
HAVING THE POWER TO TAKE INITIATIVE IN REPORTING AND ENUNCIATION OF
OPINIONS, IT HAS EXTRAORDINARY POWER TO SET THE ATMOSPHERE AND
DETERMINE THE TERMS OF LOCAL CONSIDERATION OF PUBLIC ISSUES."  B.
BAGDIKIAN, THE INFORMATION MACHINES 127 (1971).     /16/  THE
NEWSPAPERS HAVE PERSUADED CONGRESS TO GRANT THEM IMMUNITY FROM THE
ANTITRUST LAWS IN THE CASE OF "FAILING" NEWSPAPERS FOR JOINT
OPERATIONS.  84 STAT. 466, 15 U.S.C. 1801 ET SEQ. 

/17/  "FREEDOM OF THE PRESS IS A RIGHT BELONGING, LIKE ALL RIGHTS IN
A DEMOCRACY, TO ALL THE PEOPLE.  AS A PRACTICAL MATTER, HOWEVER, IT CAN
BE EXERCISED ONLY BY THOSE WHO HAVE EFFECTIVE ACCESS TO THE PRESS. 
WHERE FINANCIAL, ECONOMIC, AND TECHNOLOGICAL CONDITIONS LIMIT SUCH
ACCESS TO A SMALL MINORITY, THE EXERCISE OF THAT RIGHT BY THAT MINORITY
TAKES ON FIDUCIARY OR QUASI-FIDUCIARY CHARACTERISTICS."  A. MACLEISH IN
W. HOCKING, FREEDOM OF THE PRESS 99 N. 4 (1947) (ITALICS OMITTED). 

/18/  "IF THE STATES FEAR THAT PRIVATE CITIZENS WILL NOT BE ABLE TO
RESPOND ADEQUATELY TO PUBLICITY INVOLVING THEM, THE SOLUTION LIES IN
THE DIRECTION OF ENSURING THEIR ABILITY TO RESPOND, RATHER THAN IN
STIFLING PUBLIC DISCUSSION OF MATTERS OF PUBLIC CONCERN.  (*) 

     "(*) SOME STATES HAVE ADOPTED RETRACTION STATUTES OR RIGHT-OF
REPLY STATUTES . . . 

     "ONE WRITER, IN ARGUING THAT THE FIRST AMENDMENT ITSELF SHOULD

  BE READ TO GUARANTEE A RIGHT OF ACCESS TO THE MEDIA NOT LIMITED

TO A RIGHT TO RESPOND TO DEFAMATORY FALSEHOODS, HAS SUGGESTED

  SEVERAL WAYS THE LAW MIGHT ENCOURAGE PUBLIC DISCUSSION.  BARRON,

  ACCESS TO THE PRESS--A NEW FIRST AMENDMENT RIGHT, 80

  HARV.L.REV.  1641, 1666 - 1678 (1967).  IT IS IMPORTANT TO

  RECOGNIZE THAT THE PRIVATE INDIVIDUAL OFTEN DESIRES PRESS

  EXPOSURE EITHER FOR HIMSELF, HIS IDEAS, OR HIS CAUSES. 

  CONSTITUTIONAL ADJUDICATION MUST TAKE INTO ACCOUNT THE

  INDIVIDUAL'S INTEREST IN ACCESS TO THE PRESS AS WELL AS THE

  INDIVIDUAL'S INTEREST IN PRESERVING HIS REPUTATION, EVEN THOUGH

  LIBEL ACTIONS BY THEIR NATURE ENCOURAGE A NARROW VIEW OF THE

  INDIVIDUAL'S INTEREST SINCE THEY FOCUS ONLY ON SITUATIONS WHERE

  THE INDIVIDUAL HAS BEEN HARMED BY UNDESIRED PRESS ATTENTION.  A

  CONSTITUTIONAL RULE THAT DETERS THE PRESS FROM COVERING THE IDEAS

  OR ACTIVITIES OF THE PRIVATE INDIVIDUAL THUS CONCEIVES THE

INDIVIDUAL'S INTEREST TOO

NARROWLY." 

/19/  THE NATIONAL NEWS COUNCIL, AN INDEPENDENT AND VOLUNTARY BODY
CONCERNED WITH PRESS FAIRNESS, WAS CREATED IN 1973 TO PROVIDE A MEANS
FOR NEUTRAL EXAMINATION OF CLAIMS OF PRESS INACCURACY.  THE COUNCIL WAS
CREATED FOLLOWING THE PUBLICATION OF THE TWENTIETH CENTURY FUND TASK
FORCE REPORT FOR A NATIONAL NEWS COUNCIL, A FREE AND RESPONSIVE PRESS. 
THE BACKGROUND PAPER ATTACHED TO THE REPORT DEALT IN SOME DETAIL WITH
THE BRITISH PRESS COUNCIL, SEEN BY THE AUTHOR OF THE PAPER AS HAVING
THE MOST INTEREST TO THE UNITED STATES OF THE EUROPEAN PRESS COUNCILS. 

/20/  BECAUSE WE HOLD THAT 104.38 VIOLATES THE FIRST AMENDMENT'S
GUARANTEE OF A FREE PRESS WE HAVE NO OCCASION TO CONSIDER APPELLANT'S
FURTHER ARGUMENT THAT THE STATUTE IS UNCONSTITUTIONALLY VAGUE. 

/21/ BRIEF FOR APPELLEE 5. 

/22/  "HOWEVER SINCE THE AMOUNT OF SPACE A NEWSPAPER CAN DEVOTE TO
'LIVE NEWS'  IS FINITE, (*) IF A NEWSPAPER IS FORCED TO PUBLISH A
PARTICULAR ITEM, IT MUST AS A PRACTICAL MATTER, OMIT SOMETHING ELSE. 

     "(*) THE NUMBER OF COLUMN INCHES AVAILABLE FOR NEWS IS

  PREDETERMINED BY A NUMBER OF FINANCIAL AND PHYSICAL FACTORS,

  INCLUDING CIRCULATION, THE AMOUNT OF ADVERTISING, AND,

  INCREASINGLY, THE AVAILABILITY OF NEWSPRINT . . . ."  NOTE, 48

  TULANE L.REV.  433, 438 (1974) (ONE FOOTNOTE OMITTED). 

ANOTHER FACTOR OPERATING AGAINST THE "SOLUTION" OF ADDING MORE PAGES
TO ACCOMMODATE THE ACCESS MATTER IS THAT "INCREASINGLY SUBSCRIBERS
COMPLAIN OF BULKY, UNWIELDLY PAPERS."  BAGDIKIAN, FAT NEWSPAPERS AND
SLIM COVERAGE, COLUMBIA JOURNALISM REVIEW 19 (SEPT./OCT.  1973). 

/23/  SEE THE DESCRIPTION OF THE LIKELY EFFECT OF THE FLORIDA
STATUTE ON PUBLISHERS, IN LANGE 70 - 71. 

/24/  "(LIBERTY OF THE PRESS IS IN PERIL AS SOON AS THE GOVERNMENT
TRIES TO COMPEL WHAT IS TO GO INTO A NEWSPAPER.  A JOURNAL DOES NOT
MERELY PRINT OBSERVED FACTS THE WAY A COW IS PHOTOGRAPHED THROUGH A
PLATEGLASS WINDOW.  AS SOON AS THE FACTS ARE SET IN THEIR CONTEXT, YOU
HAVE INTERPRETATION AND YOU HAVE SELECTION, AND EDITORIAL SELECTION
OPENS THE WAY TO EDITORIAL SUPPRESSION.  THEN HOW CAN THE STATE FORCE
ABSTENTION FROM DISCRIMINATION IN THE NEWS WITHOUT DICTATING
SELECTION?"  2 Z. CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS 633
(1947). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE REHNQUIST JOINS,

  CONCURRING. 

I JOIN THE COURT'S OPINION WHICH, AS I UNDERSTAND IT, ADDRESSES ONLY
"RIGHT OF REPLY" STATUTES AND IMPLIES NO VIEW UPON THE
CONSTITUTIONALITY OF "RETRACTION"  STATUTES AFFORDING PLAINTIFFS ABLE
TO PROVE DEFAMATORY FALSEHOODS A STATUTORY ACTION TO REQUIRE
PUBLICATION OF A RETRACTION.  SEE GENERALLY NOTE, VINDICATION OF THE
REPUTATION OF A PUBLIC OFFICIAL, 80 HARV.L.REV.  1730, 1739 - 1747
(1967). 

MR. JUSTICE WHITE, CONCURRING. 

THE COURT TODAY HOLDS THAT THE FIRST AMENDMENT BARS A STATE FROM
REQUIRING A NEWSPAPER TO PRINT THE REPLY OF A CANDIDATE FOR PUBLIC
OFFICE WHOSE PERSONAL CHARACTER HAS BEEN CRITICIZED BY THAT NEWSPAPER'S
EDITORIALS.  ACCORDING TO OUR ACCEPTED JURISPRUDENCE, THE FIRST
AMENDMENT ERECTS A VIRTUALLY INSURMOUNTABLE BARRIER BETWEEN GOVERNMENT
AND THE PRINT MEDIA SO FAR AS GOVERNMENT TAMPERING, IN ADVANCE OF
PUBLICATION, WITH NEWS AND EDITORIAL CONTENT IS CONCERNED.  NEW YORK
TIMES CO. V. UNITED STATES, 403 U.S. 713 (1971).  A NEWSPAPER OR
MAGAZINE IS NOT A PUBLIC UTILITY SUBJECT TO "REASONABLE" GOVERNMENTAL
REGULATION IN MATTERS AFFECTING THE EXERCISE OF JOURNALISTIC JUDGMENT
AS TO WHAT SHALL BE PRINTED.  CF. MILLS V. ALABAMA, 384 U.S. 214, 220
(1966).  WE HAVE LEARNED, AND CONTINUE TO LEARN, FROM WHAT WE VIEW AS
THE UNHAPPY EXPERIENCES OF OTHER NATIONS WHERE GOVERNMENT HAS BEEN
ALLOWED TO MEDDLE IN THE INTERNAL EDITORIAL AFFAIRS OF NEWSPAPERS. 
REGARDLESS OF HOW BENEFICENT-SOUNDING THE PURPOSES OF CONTROLLING THE
PRESS MIGHT BE, WE PREFER "THE POWER OF REASON AS APPLIED THROUGH
PUBLIC DISCUSSION"  /1/  AND REMAIN INTENSELY SKEPTICAL ABOUT THOSE
MEASURES THAT WOULD ALLOW GOVERNMENT TO INSINUATE ITSELF INTO THE
EDITORIAL ROOMS OF THIS NATION'S PRESS. 

     "WHATEVER DIFFERENCES MAY EXIST ABOUT INTERPRETATIONS OF THE

  FIRST AMENDMENT, THERE IS PRACTICALLY UNIVERSAL AGREEMENT THAT A

  MAJOR PURPOSE OF THAT AMENDMENT WAS TO PROTECT THE FREE

  DISCUSSION OF GOVERNMENTAL AFFAIRS.  THIS OF COURSE INCLUDES

  DISCUSSIONS OF CANDIDATES, STRUCTURES AND FORMS OF GOVERNMENT,

  THE MANNER IN WHICH GOVERNMENT IS OPERATED OR SHOULD BE OPERATED,

  AND ALL SUCH MATTERS RELATING TO POLITICAL PROCESSES.  THE

  CONSTITUTION SPECIFICALLY SELECTED THE PRESS . . . TO PLAY AN

IMPORTANT ROLE IN THE DISCUSSION OF PUBLIC AFFAIRS.  THUS THE

  PRESS SERVES AND WAS DESIGNED TO SERVE AS A POWERFUL ANTIDOTE TO

  ANY ABUSES OF POWER BY GOVERNMENTAL OFFICIALS AND AS A

  CONSTITUTIONALLY CHOSEN MEANS FOR KEEPING OFFICIALS ELECTED BY

  THE PEOPLE RESPONSIBLE TO ALL THE PEOPLE WHOM THEY WERE SELECTED

  TO SERVE.  SUPPRESSION OF THE RIGHT OF THE PRESS TO PRAISE OR

  CRITICIZE GOVERNMENTAL AGENTS AND TO CLAMOR AND CONTEND FOR OR

  AGAINST CHANGE . . . MUZZLES ONE OF THE VERY AGENCIES THE FRAMERS

  OF OUR CONSTITUTION THOUGHTFULLY AND DELIBERATELY SELECTED TO

  IMPROVE OUR SOCIETY AND KEEP IT FREE."  MILLS V. ALABAMA, SUPRA,

  AT 218 - 219. 

OF COURSE, THE PRESS IS NOT ALWAYS ACCURATE, OR EVEN RESPONSIBLE,
AND MAY NOT PRESENT FULL AND FAIR DEBATE ON IMPORTANT PUBLIC ISSUES. 
BUT THE BALANCE STRUCK BY THE FIRST AMENDMENT WITH RESPECT TO THE PRESS
IS THAT SOCIETY MUST TAKE THE RISK THAT OCCASIONALLY DEBATE ON VITAL
MATTERS WILL NOT BE COMPREHENSIVE AND THAT ALL VIEWPOINTS MAY NOT BE
COMPREHENSIVE AND THAT ALL VIEWPOINTS MAY NOT BE EXPRESSED.  THE PRESS
WOULD BE UNLICENSED BECAUSE, IN JEFFERSON'S WORDS, "(WHERE THE PRESS IS
FREE, AND EVERY MAN ABLE TO READ, ALL IS SAFE."  /2/  ANY OTHER
ACCOMMODATION--ANY OTHER SYSTEM THAT WOULD SUPPLANT PRIVATE CONTROL OF
THE PRESS WITH THE HEAVY HAND OF GOVERNMENT INTRUSION--WOULD MAKE THE
GOVERNMENT THE CENSOR OF WHAT THE PEOPLE MAY READ AND KNOW. 

TO JUSTIFY THIS STATUTE, FLORIDA ADVANCES A CONCEDEDLY IMPORTANT
INTEREST OF ENSURING FREE AND FAIR ELECTIONS BY MEANS OF AN ELECTORATE
INFORMED ABOUT THE ISSUES.  BUT PRIOR COMPULSION BY GOVERNMENT IN
MATTERS GOING TO THE VERY NERVE CENTER OF A NEWSPAPER--THE DECISION AS
TO WHAT COPY WILL OR WILL NOT BE INCLUDED IN ANY GIVEN EDITION-
COLLIDES WITH THE FIRST AMENDMENT.  WOVEN INTO THE FABRIC OF THE FIRST
AMENDMENT IS THE UNEXCEPTIONABLE, BUT NONETHELESS TIMELESS, SENTIMENT
THAT "LIBERTY OF THE PRESS IS IN PERIL AS SOON AS THE GOVERNMENT TRIES
TO COMPEL WHAT IS TO GO INTO A NEWSPAPER."  2 Z. CHAFEE, GOVERNMENT AND
MASS COMMUNICATIONS 633 (1947). 

THE CONSTITUTIONALLY OBNOXIOUS FEATURE OF 104.38 IS NOT THAT THE
FLORIDA LEGISLATURE MAY ALSO HAVE PLACED A HIGH PREMIUM ON THE
PROTECTION OF INDIVIDUAL REPUTATIONAL INTERESTS; FOR GOVERNMENT
CERTAINLY HAS "A PERVASIVE AND STRONG INTEREST IN PREVENTING AND
REDRESSING ATTACKS UPON REPUTATION."  ROSENBLATT V. BAER, 383 U.S. 75,
86 (1966).  QUITE THE CONTRARY, THIS LAW RUNS AFOUL OF THE ELEMENTARY
FIRST AMENDMENT PROPOSITION THAT GOVERNMENT MAY NOT FORCE A NEWSPAPER
TO PRINT COPY WHICH, IN ITS JOURNALISTIC DISCRETION, IT CHOOSES TO
LEAVE ON THE NEWSROOM FLOOR.  WHATEVER POWER MAY RESIDE IN GOVERNMENT
TO INFLUENCE THE PUBLISHING OF CERTAIN NARROWLY CIRCUMSCRIBED
CATEGORIES OF MATERIAL, SEE, E. G., PITTSBURGH PRESS CO. V. HUMAN
RELATIONS COMM'N, 413 U.S. 376 (1973); NEW YORK TIMES CO. V. UNITED
STATES, 403 U.S., AT 730 (CONCURRING OPINION), WE HAVE NEVER THOUGHT
THAT THE FIRST AMENDMENT PERMITTED PUBLIC OFFICIALS TO DICTATE TO THE
PRESS THE CONTENTS OF ITS NEWS COLUMNS OR THE SLANT OF ITS EDITORIALS. 

BUT THOUGH A NEWSPAPER MAY PUBLISH WITHOUT GOVERNMENT CENSORSHIP, IT
HAS NEVER BEEN ENTIRELY FREE FROM LIABILITY FOR WHAT IT CHOOSES TO
PRINT.  SEE IBID.  AMONG OTHER THINGS, THE PRESS HAS NOT BEEN WHOLLY AT
LIBERTY TO PUBLISH FALSEHOODS DAMAGING TO INDIVIDUAL REPUTATION.  AT
LEAST UNTIL TODAY, WE HAVE CHERISHED THE AVERAGE CITIZEN'S REPUTATION
INTEREST ENOUGH TO AFFORD HIM A FAIR CHANCE TO VINDICATE HIMSELF IN AN
ACTION FOR LIBEL CHARACTERISTICALLY PROVIDED BY STATE LAW.  HE HAS BEEN
UNABLE TO FORCE THE PRESS TO TELL HIS SIDE OF THE STORY OR TO PRINT A
RETRACTION, BUT HE HAS HAD AT LEAST THE OPPORTUNITY TO WIN A JUDGMENT
IF HE CAN PROVE THE FALSITY OF THE DAMAGING PUBLICATION, AS WELL AS A
FAIR CHANCE TO RECOVER REASONABLE DAMAGES FOR HIS INJURY. 

REAFFIRMING THE RULE THAT THE PRESS CANNOT BE FORCED TO PRINT AN
ANSWER TO A PERSONAL ATTACK MADE BY IT, HOWEVER, THROWS INTO STARK
RELIEF THE CONSEQUENCES OF THE NEW BALANCE FORGED BY THE COURT IN THE
COMPANION CASE ALSO ANNOUNCED TODAY.  GERTZ V. ROBERT WELCH, INC.,
POST, P. 323, GOES FAR TOWARD EVISCERATING THE EFFECTIVENESS OF THE
ORDINARY LIBEL ACTION, WHICH HAS LONG BEEN THE ONLY POTENT RESPONSE
AVAILABLE TO THE PRIVATE CITIZEN LIBELED BY THE PRESS.  UNDER GERTZ,
THE BURDEN OF PROVING LIABILITY IS IMMEASURABLY INCREASED, PROVING
DAMAGES IS MADE EXCEEDINGLY MORE DIFFICULT, AND VINDICATING REPUTATION
BY MERELY PROVING FALSEHOOD AND WINNING A JUDGMENT TO THAT EFFECT ARE
WHOLLY FORECLOSED.  NEEDLESSLY, IN MY VIEW, THE COURT TRIVIALIZES AND
DENIGRATES THE INTEREST IN REPUTATION BY REMOVING VIRTUALLY ALL THE
PROTECTION THE LAW HAS ALWAYS AFFORDED. 

OF COURSE, THESE TWO DECISIONS DO NOT MEAN THAT BECAUSE GOVERNMENT
MAY NOT DICTATE WHAT THE PRESS IS TO PRINT, NEITHER CAN IT AFFORD A
REMEDY FOR LIBEL IN ANY FORM.  GERTZ ITSELF LEAVES A PUTATIVE REMEDY
FOR LIBEL INTACT, ALBEIT IN SEVERELY EMACIATED FORM; AND THE PRESS
CERTAINLY REMAINS LIABLE FOR KNOWING OR RECKLESS FALSEHOODS UNDER NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964), AND ITS PROGENY,
HOWEVER IMPROPER AN INJUNCTION AGAINST PUBLICATION MIGHT BE. 

ONE NEED NOT THINK LESS OF THE FIRST AMENDMENT TO SUSTAIN REASONABLE
METHODS FOR ALLOWING THE AVERAGE CITIZEN TO REDEEM A FALSELY TARNISHED
REPUTATION.  NOR DOES ONE HAVE TO DOUBT THE GENUINE DECENCY, INTEGRITY,
AND GOOD SENSE OF THE VAST MAJORITY OF PROFESSIONAL JOURNALISTS TO
SUPPORT THE RIGHT OF ANY INDIVIDUAL TO HAVE HIS DAY IN COURT WHEN HE
HAS BEEN FALSELY MALIGNED IN THE PUBLIC PRESS.  THE PRESS IS THE
SERVANT, NOT THE MASTER, OF THE CITIZENRY, AND ITS FREEDOM DOES NOT
CARRY WITH IT AN UNRESTRICTED HUNTING LICENSE TO PREY ON THE ORDINARY
CITIZEN. 

"IN PLAIN ENGLISH, FREEDOM CARRIES WITH IT RESPONSIBILITY EVEN FOR
THE PRESS; FREEDOM OF THE PRESS IS NOT A FREEDOM FROM RESPONSIBILITY
FOR ITS EXERCISE."  "WITHOUT . . . A LIVELY SENSE OF RESPONSIBILITY A
FREE PRESS MAY READILY BECOME A POWERFUL INSTRUMENT OF INJUSTICE." 
PENNEKAMP V. FLORIDA, 328 U.S. 331, 356, 365 (1946) (FRANKFURTHER, J.,
CONCURRING) (FOOTNOTE OMITTED).  TO ME IT IS A NEAR ABSURDITY TO SO
DEPRECATE INDIVIDUAL DIGNITY, AS THE COURT DOES IN GERTZ, AND TO LEAVE
THE PEOPLE AT THE COMPLETE MERCY OF THE PRESS, AT LEAST IN THIS STAGE
OF OUR HISTORY WHEN THE PRESS, AS THE MAJORITY IN THIS CASE SO WELL
DOCUMENTS, IS STEADILY BECOMING MORE POWERFUL AND MUCH LESS LIKELY TO
BE DETERRED BY THREATS OF LIBEL SUITS. 

/1/  WHITNEY V. CALIFORNIA, 274 U.S. 357, 375 (1927) (BRANDEIS, J.,

  CONCURRING). 

/2/  LETTER TO COL. CHARLES YANCEY IN 14 THE WRITINGS OF THOMAS
JEFFERSON 384 (LIPSCOMB ED. 1904). 

DANIEL P. S. PAUL ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE JAMES W. BEASLEY, JR., AND RICHARD M. SCHMIDT, JR. 

JEROME A. BARRON ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE TOBIAS SIMON AND ELIZABETH DUFRESNE.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JOSEPH A.
CALIFANO, JR., AND RICHARD M. COOPER FOR WASHINGTON POST CO.; BY ROBERT
C. LOBDELL AND ROBERT S. WARREN FOR TIMES MIRROR CO.; BY JAMES W.
RODGERS FOR NEW YORK NEWS INC.; BY DON H. REUBEN AND LAWRENCE GUNNELS
FOR CHICAGO TRIBUNE CO. ET AL.; BY HAROLD B. WAHL FOR FLORIDA
PUBLISHING CO.; BY WILLIAM C. BALLARD FOR TIMES PUBLISHING CO.; BY
SPESSARD LINDSEY HOLLAND, JR., FOR GANNETT FLORIDA CORP. ET AL.; BY
ARTHUR B. HANSON, W. FRANK STICKLE, JR., AND RALPH N. ALBRIGHT, JR.,
FOR THE AMERICAN NEWSPAPER PUBLISHERS ASSN.; BY WILLIAM G. MULLEN FOR
THE NATIONAL NEWSPAPER ASSN.; BY LEONARD H. MARKS FOR THE AMERICAN
SOCIETY OF NEWSPAPER EDITORS ET AL.; BY LAWRENCE E. WALSH AND GUY
MILLER STRUVE FOR THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
LEGAL DEFENSE AND RESEARCH FUND ET AL.; BY JOHN B. SUMMERS FOR THE
NATIONAL ASSOCIATION OF BROADCASTERS; BY J. LAURENT SCHARFF FOR RADIO
TELEVISION NEWS DIRECTORS ASSN.; BY FLOYD ABRAMS, CORYDON B. DUNHAM,
AND HOWARD MONDERER FOR NATIONAL BROADCASTING CO., INC.; BY HARRY A.
INMAN AND D. ROBERT OWEN FOR DOW JONES & CO., INC., ET AL.; AND BY
JONATHAN L. ALPERT, IRMA ROBBINS FEDER, AND RICHARD YALE FEDER FOR THE
AMERICAN CIVIL LIBERTIES UNION OF FLORIDA. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY ALBERT H.
KRAMER AND THOMAS R. ASHER FOR THE NATIONAL CITIZENS COMMITTEE FOR
BROADCASTING, AND BY DONALD U. SESSIONS PRO SE.
..END :


















LETTER CARRIERS V. AUSTIN, 418 U.S. 264 


       OLD DOMINION BRANCH NO. 496, NATIONAL ASSOCIATION OF LETTER

           CARRIERS, AFL - CIO, ET AL. V. AUSTIN ET AL.

        APPEAL FROM SUPREME COURT OF VIRGINIA

     NO. 72 - 1180.  ARGUED NOVEMBER 14, 1973--DECIDED JUNE 25,

           1974; 213 VA. 377, 192 S.E.2D 737, REVERSED. 


    AS PART OF ITS ONGOING EFFORTS TO ORGANIZE THE REMAINDER OF

  LETTER CARRIERS, APPELLANT UNION, THE CARRIERS'

  COLLECTIVE-BARGAINING REPRESENTATIVE IN RICHMOND, VIRGINIA

  PUBLISHED A "LIST OF SCABS" IN ITS NEWSLETTER, INCLUDING THE

  NAMES OF APPELLEES, TOGETHER WITH A PEJORATIVE DEFINITION OF

  "SCAB" USING WORDS LIKE "TRAITOR."  APPELLEES BROUGHT LIBEL

  ACTIONS.  THOUGH RECOGNIZING THAT THE CASE INVOLVED THE

  PUBLICATIONS OF A LABOR UNION THAT WERE RELEVANT TO THE UNION'S

  ORGANIZATIONAL CAMPAIGN, THE TRIAL COURT OVERRULED APPELLANTS'

  MOTIONS TO DISMISS BASED ON THE GROUND THAT THE PUBLICATION HAD

  FIRST AMENDMENT AND FEDERAL LABOR LAW PROTECTION.  THE COURT

  INTERPRETED LINN V. PLANT GUARD WORKERS, 383 U.S. 53, TO PERMIT

  APPLICATION OF STATE LIBEL LAWS AS LONG AS THE CHALLENGED

  STATEMENTS WERE MADE WITH "ACTUAL MALICE," DEFINED AS BEING

"ACTUATED BY SOME SINISTER OR CORRUPT MOTIVE SUCH AS HATRED,

  PERSONAL SPITE, ILL WILL, OR DESIRE TO INJURE THE PLAINTIFF . . .

  OR . . . WITH SUCH GROSS INDIFFERENCE AND RECKLESSNESS AS TO

  AMOUNT TO A WANTON OR WILFUL DISREGARD OF THE RIGHTS OF THE

  PLAINTIFF."  THE JURY AWARDED APPELLEES DAMAGES, AND THE STATE

  SUPREME COURT AFFIRMED.  HELD: 

     1.  ALTHOUGH LINN V. PLANT GUARD WORKERS, SUPRA, HELD THAT

  FEDERAL LABOR LAW DOES NOT COMPLETELY PRE-EMPT THE APPLICATION OF

  STATE LAWS TO LIBELS PUBLISHED DURING LABOR DISPUTES, THAT

  DECISION RECOGNIZED THAT FEDERAL LAW DOES PRE-EMPT STATE LAW TO

  THE EXTENT THAT THE STATE SEEKS TO MAKE ACTIONABLE DEFAMATORY

  STATEMENTS IN LABOR DISPUTES PUBLISHED WITHOUT KNOWLEDGE OF THEIR

  FALSITY OR RECKLESS DISREGARD OF THE TRUTH.  PP. 270 - 273. 

     2.  FEDERAL LABOR LAWS FAVOR UNINHIBITED, ROBUST, AND WIDE
OPEN

  DEBATE IN LABOR DISPUTES.  PP. 273 - 279. 

     (A) THE RELEVANT LAW HERE IS EXECUTIVE ORDER NO. 11491,

  GOVERNING LABOR RELATIONS IN FEDERAL EMPLOYMENT.  THE BASIC

  PROVISIONS OF THE EXECUTIVE ORDER ARE LIKE THOSE OF THE NATIONAL

  LABOR RELATIONS ACT, AND SIMILARLY AFFORD WIDE LATITUDE FOR UNION

  FREEDOM OF SPEECH.  THE PARTIAL PRE-EMPTION OF LINN IS THUS

  EQUALLY APPLICABLE HERE.  PP. 273 - 279. 

     (B) THE FREE SPEECH PROTECTIONS AFFORDED UNION ORGANIZING

  EFFORTS EXTEND TO POST-RECOGNITION ORGANIZING ACTIVITY TO THE

  SAME DEGREE AS TO PRE-RECOGNITION ACTIVITY.  P. 279. 

     3.  THE TRIAL COURT'S INSTRUCTION DEFINING MALICE IN COMMON
LAW

  TERMS WAS ERRONEOUS AND REFLECTED A MISUNDERSTANDING OF LINN,

  WHICH ADOPTED THE RECKLESS-OR-KNOWING-FALSEHOOD TEST OF NEW YORK

  TIMES CO. V. SULLIVAN, 376 U.S. 254.  PP. 280 - 282. 

     4.  THE STATE LIBEL AWARD ARISING OUT OF THE PUBLICATION OF
THE

  UNION NEWSLETTER HERE DID NOT COMPORT WITH THE PROTECTION FOR

  FREEDOM OF SPEECH IN LABOR DISPUTES RECOGNIZED IN LINN.  THE USE

 OF THE EPITHET "SCAB," WHICH WAS LITERALLY AND FACTUALLY TRUE AND

  IS COMMON PARLANCE IN LABOR DISPUTES, WAS PROTECTED UNDER FEDERAL

  LAW.  PUBLICATION OF THE PEJORATIVE DEFINITION WAS LIKEWISE NOT

  ACTIONABLE, SINCE THE USE OF WORDS LIKE "TRAITOR" CANNOT BE

  CONSTRUED AS REPRESENTATIONS OF FACT AND THEIR USE IN A

  FIGURATIVE SENSE TO MANIFEST THE UNION'S STRONG DISAGREEMENT WITH

  THE VIEWS OF WORKERS OPPOSING UNIONIZATION IS ALSO PROTECTED BY

  FEDERAL LAW.  CF. GREENBELT COOPERATIVE PUBLISHING ASSN. V.

  BRESLER, 398 U.S. 6.  PP. 282 - 287. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED AN
OPINION CONCURRING IN THE RESULT, POST, P. 287.  POWELL, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C. J., AND REHNQUIST, J., JOINED,
POST, P. 291. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THREE STATE LIBEL JUDGMENTS IMPOSING LIABILITY OF
$165,000 ON A LABOR UNION AS A RESULT OF STATEMENTS MADE IN A UNION
NEWSLETTER DURING A CONTINUING ORGANIZATIONAL DRIVE.  THE QUESTION
PRESENTED IS WHETHER THESE LIBEL JUDGMENTS CAN BE SQUARED WITH THE
FREEDOM OF SPEECH IN LABOR DISPUTES GUARANTEED UNDER FEDERAL LAW. 

        I 

APPELLANT OLD DOMINION BRANCH NO. 496 IS A LOCAL UNION AFFILIATED
WITH THE APPELLANT NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL - CIO. 
AT ALL TIMES RELEVANT TO THIS CASE, THE BRANCH WAS RECOGNIZED BY POSTAL
AUTHORITIES AS THE EXCLUSIVE LOCAL COLLECTIVE-BARGAINING REPRESENTATIVE
OF LETTER CARRIERS IN THE RICHMOND, VIRGINIA, AREA IN ACCORDANCE WITH
10 OF EXECUTIVE ORDER 11491, /1/  GOVERNING LABOR-MANAGEMENT RELATIONS
IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT.  APPELLEES, HENRY M.
AUSTIN, L. D. BROWN, AND ROY P. ZIEGENGEIST, WERE LETTER CARRIERS IN
RICHMOND WHO NEITHER WERE MEMBERS OF THE UNION NOR PAID ANY DUES OR
FEES TO THE UNION.  /2/ 

ALTHOUGH IT HAD ALREADY BEEN SELECTED AS BARGAINING REPRESENTATIVE
BY A MAJORITY OF THE POSTAL WORKERS IN THE UNIT, THE BRANCH IN THE
SPRING OF 1970 WAS ENGAGED IN AN ONGOING EFFORT TO ORGANIZE THE
REMAINDER OF THE LETTER CARRIERS.  AS PART OF THIS CAMPAIGN, THE BRANCH
PERIODICALLY PUBLISHED IN ITS MONTHLY NEWSLETTER, THE CARRIER'S CORNER,
A LIST OF THOSE WHO HAD NOT YET JOINED THE UNION, UNDER THE HEADING
"LIST OF SCABS."  AFTER HIS NAME TWICE APPEARED IN THE "LIST OF SCABS,"
APPELLEE AUSTIN COMPLAINED TO THE RICHMOND POSTMASTER AND THE PRESIDENT
OF THE BRANCH THAT THE UNION WAS TRYING TO COERCE HIM INTO JOINING. 
AUSTIN SAID THAT HE DID NOT KNOW WHAT A SCAB WAS, BUT THAT HE WAS GOING
TO SUE THE UNION IF HE WAS CALLED A SCAB AGAIN. 

SEVERAL WEEKS LATER, THE JUNE ISSUE OF THE CARRIER'S CORNER WAS
DISTRIBUTED TO BRANCH MEMBERS.  ONCE AGAIN THE NEWSLETTER CONTAINED A
"LIST OF SCABS,"  INCLUDING THE NAMES OF THE THREE APPELLEES, AS WELL
AS 12 OTHERS.  JUST ABOVE THE LIST OF NAMES, THE NEWSLETTER NOTED THAT
"(SOME CO-WORKERS ARE IN A QUANDARY AS TO WHAT A SCAB IS" AND SAID "WE
SUBMIT THE FOLLOWING."  THERE FOLLOWED A WELL-KNOWN PIECE OF TRADE
UNION LITERATURE, GENERALLY ATTRIBUTED TO AUTHOR JACK LONDON, WHICH
PURPORTED TO SUPPLY A DEFINITION:

        "THE SCAB" 

     "AFTER GOD HAD FINISHED THE RATTLESNAKE, THE TOAD, AND THE

  VAMPIRE, HE HAD SOME AWFUL SUBSTANCE LEFT WITH WHICH HE MADE A

  SCAB. 

     "A SCAB IS A TWO-LEGGED ANIMAL WITH A CORKSCREW SOUL, A WATER

  BRAIN, A COMBINATION BACKBONE OF JELLY AND GLUE.  WHERE OTHERS

  HAVE HEARTS, HE CARRIES A TUMOR OF ROTTEN PRINCIPLES. 

     "WHEN A SCAB COMES DOWN THE STREET, MEN TURN THEIR BACKS AND

  ANGELS WEEP IN HEAVEN, AND THE DEVIL SHUTS THE GATES OF HELL TO

  KEEP HIM OUT. 

  "NO MAN (OR WOMAN) HAS A RIGHT TO SCAB SO LONG AS THERE IS A

  POOL OF WATER TO DROWN HIS CARCASS IN, OR A ROPE LONG ENOUGH TO

  HANG HIS BODY WITH.  JUDAS WAS A GENTLEMAN COMPARED WITH A SCAB. 

  FOR BETRAYING HIS MASTER, HE HAD CHARACTER ENOUGH TO HANG

  HIMSELF.  A SCAB HAS NOT. 

 "ESAU SOLD HIS BIRTHRIGHT FOR A MESS OF POTTAGE.  JUDAS SOLD

  HIS SAVIOR FOR THIRTY PIECES OF SILVER.  BENEDICT ARNOLD SOLD HIS

  COUNTRY FOR A PROMISE OF A COMMISSION IN THE BRITISH ARMY.  THE

  SCAB SELLS HIS BIRTHRIGHT, COUNTRY, HIS WIFE, HIS CHILDREN AND

  HIS FELLOWMEN FOR AN UNFULFILLED PROMISE FROM HIS EMPLOYER. 

     "ESAU WAS A TRAITOR TO HIMSELF; JUDAS WAS A TRAITOR TO HIS
GOD;

  BENEDICT ARNOLD WAS A TRAITOR TO HIS COUNTRY; A SCAB IS A TRAITOR

  TO HIS GOD, HIS COUNTRY, HIS FAMILY AND HIS CLASS."  APP. 8 - 9. 

  (EMPHASIS SUPPLIED.) 

APPELLEES FILED THESE DEFAMATION ACTIONS AGAINST THE BRANCH AND THE
NATIONAL ASSOCIATION SHORTLY AFTER THE JUNE NEWSLETTER WAS PUBLISHED. 
/3/  APPELLANTS SOUGHT DISMISSAL OF THE ACTIONS ON THE GROUND THAT THE
PUBLICATION WAS PROTECTED SPEECH UNDER THE FIRST AMENDMENT AND UNDER
FEDERAL LABOR LAW.  THE TRIAL JUDGE RECOGNIZED THAT THIS CASE INVOLVED
THE "PUBLICATIONS OF A LABOR UNION WHICH (WERE) RELEVANT TO AND IN THE
COURSE OF A CAMPAIGN TO ORGANIZE FEDERAL EMPLOYEES."  APP. 20. 
NEVERTHELESS, HE OVERRULED THE DEMURRERS, INTERPRETING THIS COURT'S
DECISION IN LINN.  V. PLANT GUARD WORKERS, 383 U.S. 53 (1966), TO
PERMIT APPLICATION OF STATE LIBEL LAWS IN SUCH CIRCUMSTANCES AS LONG AS
THE STATEMENTS WERE MADE WITH "ACTUAL MALICE."  THE JUDGE DEFINED
"ACTUAL MALICE" IN HIS INSTRUCTIONS TO THE JURY AS FOLLOWS: 

     "THE TERM 'ACTUAL MALICE' IS THAT CONDUCT WHICH SHOWS IN FACT

  THAT AT THE TIME THE WORDS WERE PRINTED THEY WERE ACTUATED BY

  SOME SINISTER OR CORRUPT MOTIVE SUCH AS HATRED, PERSONAL SPITE,

  ILL WILL, OR DESIRE TO INJURE THE PLAINTIFF; OR THAT THE

COMMUNICATION WAS MADE WITH SUCH GROSS INDIFFERENCE AND

RECKLESSNESS AS TO AMOUNT TO A WANTON OR WILFUL DISREGARD OF THE

  RIGHTS OF THE PLAINTIFF."  APP. 93. 

THE JURY RETURNED A VERDICT AWARDING EACH OF THE APPELLEES $10,000 IN
COMPENSATORY DAMAGES AND $45,000 IN PUNITIVE DAMAGES.  /4/ 

THE SUPREME COURT OF VIRGINIA AFFIRMED.  213 VA. 377, 192 S.E.2D 737
(1972).  IN VIEW OF APPELLANTS' SUBSTANTIAL CLAIMS THAT THEIR
STATEMENTS IN THE NEWSLETTER WERE PROTECTED EXPRESSION UNDER THE FIRST
AMENDMENT AND FEDERAL LABOR LAW, AND THAT THE STATE COURTS HAD ERRED IN
INTERPRETING THE PRE-EMPTIVE EFFECT OF LINN, WE NOTED PROBABLY
JURISDICTION AND SET THIS CASE FOR ORAL ARGUMENT WITH NO. 72 - 617,
GERTZ V. ROBERT WELCH, INC., POST, P. 323.  412 U.S. 917 (1973).  WE
REVERSE. 

        II 

AS NOTED, THIS CASE CALLS UPON US TO DETERMINE THE EXTENT TO WHICH
STATE LIBEL LAWS MAY BE APPLIED TO PENALIZE STATEMENTS MADE IN THE
COURSE OF LABOR DISPUTES WITHOUT UNDERMINING THE FREEDOM OF SPEECH
WHICH HAS LONG BEEN A BASIC TENET OF FEDERAL LABOR POLICY.  WE DO NOT
APPROACH THIS PROBLEM, HOWEVER, WITH A CLEAN SLATE.  THE COURT HAS
ALREADY PERFORMED THE DIFFICULT TASK OF RECONCILING THE COMPETING STATE
AND FEDERAL INTERESTS INVOLVED IN THIS AREA, AND ESTABLISHED THE
FRAMEWORK FOR OUR ANALYSIS HERE, IN LINN V. PLANT GUARD WORKERS,
SUPRA. 

IN LINN, AN ASSISTANT GENERAL MANAGER OF PINKERTON'S DETECTIVE
AGENCY BROUGHT SUIT UNDER ATE LIBEL LAWS AGAINST THE PLANT GUARD
WORKERS IN A DIVERSITY ACTION IN FEDERAL COURT.  LINN ALLEGED THAT
STATEMENTS MADE IN A UNION LEAFLET DURING A CAMPAIGN TO ORGANIZE THE
COMPANY'S EMPLOYEES, WHICH CHARGED HIM WITH "LYING" TO THE EMPLOYEES
AND "ROBBING" THEM OF PAY INCREASES, WERE FALSE AND DEFAMATORY.  THE
DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND THAT THE NATIONAL
LABOR RELATIONS BOARD HAD EXCLUSIVE JURISDICTION OVER THE SUBJECT
MATTER OF THE COMPLAINT, FINDING THAT THE UNION'S CONDUCT WOULD
ARGUABLY BE AN UNFAIR LABOR PRACTICE UNDER 8 (B) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, 29 U.S.C. 158 (B), AND THAT THE COURT'S
DECISION IN SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236
(1959), THEREFORE COMPELLED DISMISSAL ON PRE-EMPTION GROUNDS.  THE
COURT OF APPEALS AFFIRMED. 

A BARE MAJORITY OF THIS COURT DISAGREED, HOWEVER, AND HELD THAT THE
NLRA DID NOT COMPLETELY PRE-EMPT THE APPLICATION OF STATE LAWS TO
LIBELS PUBLISHED DURING LABOR DISPUTES.  THE COURT FOUND THAT THE
EXERCISE OF STATE JURISDICTION OVER SUCH DEFAMATION ACTIONS WOULD BE A
"MERELY PERIPHERAL CONCERN" OF THE FEDERAL LABOR LAWS, WITHIN THE
MEANING OF GARMON, AS LONG AS APPROPRIATE SUBSTANTIVE LIMITATIONS WERE
IMPOSED TO INSURE THAT THE FREEDOM OF SPEECH GUARANTEED BY FEDERAL LAW
WAS PROTECTED.  FURTHER, THE COURT RECOGNIZED AN "'OVERRIDING STATE
INTEREST'  IN PROTECTING (STATE) RESIDENTS FROM MALICIOUS LIBELS."  383
U.S.,AT 61.  MR. JUSTICE CLARK, WRITING THE OPINION FOR THE COURT, ALSO
POINTED OUT THAT APPLICATION OF STATE LAW TO LIBELS OCCURRING DURING
LABOR DISPUTES WOULD NOT SIGNIFICANTLY INTERFERE WITH THE NLRB'S ROLE
IN CONSIDERING ARGUABLE CONTEMPORANEOUS VIOLATIONS OF THE ACT.  AS HE
OBSERVED, THE BOARD HAS DIFFERENT SUBSTANTIVE INTERESTS FROM STATE
LIBEL LAW, BEING CONCERNED WITH THE COERCIVE OR MISLEADING NATURE OF
THE STATEMENTS, RATHER THAN THEIR DEFAMATORY QUALITY.  AND THE NLRA AND
STATE LAWS PROVIDE QUITE DIFFERENT REMEDIES:  ONLY STATE LAW CAN
PROVIDE DAMAGES TO COMPENSATE THE LIBEL VICTIM; ONLY THE NLRB CAN ORDER
A NEW REPRESENTATION ELECTION IF THE LIBEL IS FOUND TO HAVE
SUBSTANTIALLY AFFECTED THE OUTCOME OF AN ELECTION. 

ON THE OTHER HAND, THE COURT RECOGNIZED THE DANGER THAT UNRESTRICTED
LIBEL ACTIONS UNDER STATE LAW COULD EASILY INTERFERE WITH FEDERAL LABOR
POLICY.  THE COURT OBSERVED: 

"LABOR DISPUTES ARE ORDINARILY HEATED AFFAIRS; THE LANGUAGE THAT IS
COMMONPLACE THERE MIGHT WELL BE DEEMED ACTIONABLE PER SE IN SOME STATE
JURISDICTIONS.  INDEED, REPRESENTATION CAMPAIGNS ARE FREQUENTLY
CHARACTERIZED BY BITTER AND EXTREME CHARGES, COUNTERCHARGES, UNFOUNDED
RUMORS, VITUPERATIONS, PERSONAL ACCUSATIONS, MISREPRESENTATIONS AND
DISTORTIONS.  BOTH LABOR AND MANAGEMENT OFTEN SPEAK BLUNTLY AND
RECKLESSLY, EMBELLISHING THEIR RESPECTIVE POSITIONS WITH IMPRECATORY
LANGUAGE."  383 U.S.,AT 58.  THIS FREEWHEELING USE OF THE WRITTEN AND
SPOKEN WORD, WE FOUND, HAS BEEN EXPRESSLY FOSTERED BY CONGRESS AND
APPROVED BY THE NLRB.  THUS, MR. JUSTICE CLARK ACKNOWLEDGED THAT THERE
WAS "A CONGRESSIONAL INTENT TO ENCOURAGE FREE DEBATE ON ISSUES DIVIDING
LABOR AND MANAGEMENT," ID., AT 62, AND NOTED THAT "THE BOARD HAS GIVEN
FREQUENT CONSIDERATION TO THE TYPE OF STATEMENTS CIRCULATED DURING
LABOR CONTROVERSIES, AND . . . IT HAS ALLOWED WIDE LATITUDE TO THE
COMPETING PARTIES."  ID., AT 60. 

THE COURT THEREFORE FOUND IT NECESSARY TO IMPOSE SUBSTANTIVE
RESTRICTIONS ON THE STATE LIBEL LAWS TO BE APPLIED TO DEFAMATORY
STATEMENTS IN LABOR DISPUTES IN ORDER TO PREVENT "UNWARRANTED INTRUSION
UPON FREE DISCUSSION ENVISIONED BY THE ACT."  ID., AT 65.  THE COURT
LOOKED TO THE NLRB'S DECISIONS, AND FOUND THAT "ALTHOUGH THE BOARD
TOLERATES INTEMPERATE, ABUSIVE AND INACCURATE STATEMENTS MADE BY THE
UNION DURING ATTEMPTS TO ORGANIZE EMPLOYEES, IT DOES NOT INTERPRET THE
ACT AS GIVING EITHER PARTY LICENSE TO INJURE THE OTHER INTENTIONALLY BY
CIRCULATING DEFAMATORY OR INSULTING MATERIAL KNOWN TO BE FALSE."  ID.,
AT 61.  THE COURT THEREFORE FOUND IT APPROPRIATE TO ADOPT BY ANALOGY
THE STANDARDS OF NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964). 
ACCORDINGLY, WE HELD THAT LIBEL ACTIONS UNDER STATE LAW WERE PRE-EMPTED
BY THE FEDERAL LABOR LAWS TO THE EXTENT THAT THE STATE SOUGHT TO MAKE
ACTIONABLE DEFAMATORY STATEMENTS IN LABOR DISPUTES WHICH WERE PUBLISHED
WITHOUT KNOWLEDGE OF THEIR FALSITY OR RECKLESS DISREGARD FOR THE
TRUTH. 

   III 

IN THIS CASE, OF COURSE, THE RELEVANT FEDERAL LAW IS EXECUTIVE ORDER
11491 RATHER THAN THE NLRA.  NEVERTHELESS, WE THINK THAT THE SAME
FEDERAL POLICIES FAVORING UNINHIBITED, ROBUST, AND WIDE-OPEN DEBATE IN
LABOR DISPUTES ARE APPLICABLE HERE, AND THAT THE SAME ACCOMMODATION OF
CONFLICTING FEDERAL AND STATE INTERESTS NECESSARILY FOLLOWS.  /5/ 

THE BASIC PROVISIONS OF THE EXECUTIVE ORDER ESTABLISH A LABOR
MANAGEMENT RELATIONS SYSTEM FOR FEDERAL EMPLOYMENT WHICH IS REMARKABLY
SIMILAR TO THE SCHEME OF THE NATIONAL LABOR RELATIONS ACT.  /6/
ALTHOUGH SEVERAL SIGNIFICANT ADJUSTMENTS HAVE BEEN MADE TO REFLECT THE
DIFFERENT STRUCTURE AND RESPONSIBILITIES OF THE GOVERNMENTAL EMPLOYER,
/7/  IT IS APPARENT THAT THE ORDER ADOPTED IN LARGE PART THE PROVISIONS
AND POLICIES OF THE NLRA AS ITS MODEL.  /8/  INDEED, ONE OF THE PRIMARY
PURPOSES OF THE EXECUTIVE ORDER WAS TO "SUBSTANTIALLY STRENGTHEN THE
FEDERAL LABOR RELATIONS SYSTEM BY BRINGING IT MORE INTO LINE WITH
PRACTICES IN THE PRIVATE SECTOR OF THE ECONOMY."  5 PRESIDENTIAL
DOCUMENTS 1508 (OCT. 29, 1969) (ANNOUNCEMENT OF THE SIGNING OF EXEC.
ORDER 11491).  ACCORDINGLY, WHILE DECISIONS UNDER THE NLRA MAY NOT BE
BINDING PRECEDENT UNDER THE EXECUTIVE ORDER, THE ASSISTANT SECRETARY OF
LABOR CHARGED WITH ADMINISTRATION OF THE ORDER HAS HELD THAT HIS
DECISIONS WILL "TAKE INTO ACCOUNT THE EXPERIENCE GAINED IN THE PRIVATE
SHIPYARD, CASE NOS. 40 - 1940 (CA), 40 - 1950 (CA), A/SLMR NO. 1, P. 3
(NOV. 3, 1970). 

IN LIGHT OF THIS BASIC PURPOSE, WE SEE NOTHING IN THE EXECUTIVE
ORDER WHICH INDICATES THAT IT INTENDED TO RESTRICT IN ANY WAY THE
ROBUST DEBATE WHICH HAS BEEN PROTECTED UNDER THE NLRA.  SUCH EVIDENCE
AS IS AVAILABLE, RATHER, DEMONSTRATES THAT THE SAME TOLERANCE FOR UNION
SPEECH WHICH HAS LONG CHARACTERIZED OUR LABOR RELATIONS IN THE PRIVATE
ONE OF THE REGIONAL ADMINISTRATORS UNDER THE EXECUTIVE ORDER PROGRAM
HAS STATED, IN THE CONTEXT OF UNION ORGANIZING CAMPAIGNS: 

"IT IS A CLICHE BY NOW BUT, NONETHELESS, AN EMBEDDED POLICY IN LABOR
RELATIONS THAT ELECTIONEERING OR CAMPAIGNING HAS A BROAD TOLERANCE.  WE
DO NOT ENCOURAGE, NOR DO WE PROHIBIT, THE EXAGGERATION, THE
DISSEMINATION OF HALF-TRUTH OR ACCUSATION.  IN SUM, WE LEAVE IT TO THE
EMPLOYEE TO DECIDE."  /9/ AND THE ASSISTANT SECRETARY HAS HELD THAT
AGENCY CENSORSHIP OF UNION MATERIALS, EVEN IF ONLY TO DELETE
"SLANDEROUS" OR "INFLAMMATORY" MATERIAL, IS UNLAWFUL INTERFERENCE WITH
EMPLOYEE RIGHTS PROTECTED UNDER THE ORDER AND AN UNFAIR LABOR PRACTICE
UNDER 19 (A)(1).  LOS ANGELES AIR ROUTE TRAFFIC CONTROL CENTER, CASE
NO. 72 - CA - 3014 (26), A/SLMR NO. 283, APP. 4 (JUNE 30, 1973)
(SUMMARIZED IN BNA GOVT. EMPL.  REL.  REP. NO. 514, JULY 30, 1973, P. A
- 10).     WE RECOGNIZE THAT THE EXECUTIVE ORDER DOES NOT CONTAIN ANY
PROVISION CORRESPONDING TO 8 (C) OF THE NLRA, /10/  RELIED ON IN PART
BY THE COURT IN LINN.  BUT THE COURT RECOGNIZED THAT THIS SECTION WAS
PRIMARILY INTENDED "TO PREVENT THE BOARD FROM ATTRIBUTING ANTI-UNION
MOTIVE TO AN EMPLOYER ON THE BASIS OF HIS PAST STATEMENTS."  383
U.S.,AT 62 - 63, N. 5 (EMPHASIS ADDED).  A PROVISION CORRESPONDING TO 8
(C) WAS APPARENTLY THOUGHT UNNECESSARY IN THE EXECUTIVE ORDER BECAUSE
IT DIRECTS THE GOVERNMENT, AS EMPLOYER, TO ADOPT A POSITION OF
NEUTRALITY CONCERNING UNIONIZATION OF ITS EMPLOYEES.  /11/  "GOVERNMENT
OFFICIALS DO NOT MOUNT 'VOTE NO' CAMPAIGNS."  HAMPTON, FEDERAL LABOR
MANAGEMENT RELATIONS:  A PROGRAM IN EVOLUTION, 21 CATH.U.L.REV.  493,
502 (1972). 

THE PRIMARY SOURCE OF PROTECTION FOR UNION FREEDOM OF SPEECH UNDER
THE NLRA, HOWEVER, PARTICULARLY IN AN ORGANIZATIONAL CONTEXT, IS THE
GUARANTEE IN 7 OF THE ACT OF THE EMPLOYEES' RIGHTS "TO FORM, JOIN, OR
ASSIST LABOR ORGANIZATIONS."  /12/ 

     "BASIC TO THE RIGHT GUARANTEED TO EMPLOYEES IN 7 TO FORM, JOIN

  OR ASSIST LABOR ORGANIZATIONS, IS THE BEFORE THE NORRIS-LAGUARDIA

  ACT AND THE WAGNER ACT, THIS COURT RECOGNIZED A RIGHT IN UNIONS

  TO 'USE ALL LAWFUL PROPAGANDA TO ENLARGE THEIR MEMBERSHIP.'" 

  NLRB V. DRIVERS LOCAL 639, 362 U.S. 274, 279 (1960) (CITATIONS

  OMITTED). 

VIGOROUS EXERCISE OF THIS RIGHT "TO PERSUADE OTHER EMPLOYEES TO JOIN"
MUST NOT BE STIFLED BY THE THREAT OF LIABILITY FOR THE OVERENTHUSIASTIC
USE OF RHETORIC OR THE INNOCENT MISTAKE OF FACT.  THUS, THE BOARD HAS
CONCLUDED THAT STATEMENTS OF FACT OR OPINION RELEVANT TO A UNION
ORGANIZING CAMPAIGN ARE PROTECTED BY 7, EVEN IF THEY ARE DEFAMATORY AND
PROVE TO BE ERRONEOUS, UNLESS MADE WITH KNOWLEDGE OF THEIR FALSITY. 
SEE, E. G., ATLANTIC TOWING CO., 75 N.L.R.B. 1169, 1171 - 1173 (1948). 
THE COURT IN LINN RECOGNIZED THE IMPORTANCE OF THIS 7 PROTECTION, IN
WORDS QUITE PERTINENT TO THIS CASE: 

"LIKEWISE, IN A NUMBER OF CASES, THE BOARD HAS CONCLUDED THAT
EPITHETS SUCH AS 'SCAB,' 'UNFAIR,' AND 'LIAR' ARE COMMONPLACE IN THESE
STRUGGLES AND NOT SO INDEFENSIBLE AS TO REMOVE THEM FROM THE PROTECTION
OF 7, EVEN THOUGH THE STATEMENTS ARE ERRONEOUS AND DEFAME ONE OF THE
PARTIES TO THE DISPUTE."  383 U.S., AT 60 - 61.  THESE CONSIDERATIONS
ARE EQUALLY APPLICABLE UNDER THE EXECUTIVE ORDER.  SECTION 1 OF THE
ORDER GUARANTEES FEDERAL EMPLOYEES THESE SAME RIGHTS.  /13/ 

APPELLEES'  SUGGESTION THAT NO "LABOR DISPUTE" WITHIN THE MEANING OF
LINN IS PRESENTED ON THE FACTS OF THIS CASE.  IT IS TRUE, AS APPELLEES
POINT OUT, THAT THERE WAS NO DISPUTE BETWEEN LABOR AND MANAGEMENT
INVOLVED HERE, AND THAT THE UNION'S ORGANIZING EFFORTS WERE NEITHER
DURING THE COURSE OF A REPRESENTATION ELECTION CAMPAIGN NOR DIRECTED
TOWARD ACHIEVING RECOGNITION.  BUT WHETHER LINN'S PARTIAL PRE-EMPTION
OF STATE LIBEL REMEDIES IS APPLICABLE OBVIOUSLY CANNOT DEPEND ON SOME
ABSTRACT NOTION OF WHAT CONSTITUTES A "LABOR DISPUTE"; RATHER,
APPLICATION OF LINN MUST TURN ON WHETHER THE DEFAMATORY PUBLICATION IS
MADE IN A CONTEXT WHERE THE POLICIES OF THE FEDERAL LABOR LAWS LEADING
TO PROTECTION FOR FREEDOM OF SPEECH ARE SIGNIFICANTLY IMPLICATED. 

AS NOTED, ONE OF THE PRIMARY REASONS FOR THE LAW'S PROTECTION OF
UNION SPEECH IS TO INSURE THAT UNION ORGANIZERS ARE FREE TO TRY
PEACEFULLY TO PERSUADE OTHER EMPLOYEES TO JOIN THE UNION WITHOUT
INHIBITION OR RESTRAINT.  ACCORDINGLY, WE THINK THAT ANY PUBLICATION
MADE DURING THE COURSE OF UNION ORGANIZING EFFORTS, WHICH IS ARGUABLY
RELEVANT TO THAT ORGANIZATIONAL ACTIVITY, IS ENTITLED TO THE PROTECTION
OF LINN.  WE SEE NO REASON TO LIMIT THIS PROTECTION TO STATEMENTS MADE
DURING REPRESENTATION ELECTION CAMPAIGNS.  THE PROTECTION OF 7 AND 1 IS
MUCH BROADER.  INDEED, LINN ITSELF INVOLVED UNION ORGANIZING ACTIVITY
OUTSIDE THE ELECTION CAMPAIGN CONTEXT.  WE SIMILARLY REJECT ANY
DISTINCTION BETWEEN UNION ORGANIZING EFFORTS LEADING TO RECOGNITION AND
POST-RECOGNITION ORGANIZING ACTIVITY.  UNIONS HAVE A LEGITIMATE AND
SUBSTANTIAL INTEREST IN CONTINUING ORGANIZATIONAL EFFORTS AFTER
RECOGNITION.  WHETHER THE GOAL IS MERELY TO STRENGTHEN OR PRESERVE THE
UNION'S MAJORITY, OR IS TO ACHIEVE 100% EMPLOYEE MEMBERSHIP--A
PARTICULARLY SUBSTANTIAL UNION CONCERN WHERE UNION SECURITY AGREEMENTS
ARE NOT PERMITTED, AS THEY ARE NOT HERE, SEE N. 2, SUPRA--THESE
ORGANIZING EFFORTS ARE EQUALLY ENTITLED TO THE PROTECTION OF 7 AND 1. 
/14/

        IV 

THE COURTS BELOW DID NOT QUESTION THE APPLICABILITY OF LINN TO THIS
CASE.  INSTEAD, BOTH COURTS BELIEVED THAT LINN REQUIRED ONLY THAT THE
JURY INSTRUCTED THAT IT MUST FIND THE DEFAMATORY STATEMENTS TO HAVE
BEEN MADE WITH MALICE BEFORE IT COULD IMPOSE LIABILITY.  AND BOTH
COURTS THOUGHT THAT INSTRUCTIONS WHICH DEFINED MALICE IN THE COMMON-LAW
SENSE--AS "HATRED, PERSONAL SPITE, ILL WILL, OR DESIRE TO INJURE"--WERE
ADEQUATE UNDER LINN. 

THIS REFLECTS A FUNDAMENTAL MISUNDERSTANDING OF THE COURT'S HOLDING
IN LINN.  THE LINN COURT EXPLICITLY ADOPTED THE STANDARDS OF NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964), AND THE HEART OF THE NEW
YORK TIMES TEST IS THE REQUIREMENT THAT RECOVERY CAN BE PERMITTED ONLY
IF THE DEFAMATORY PUBLICATION WAS MADE "WITH KNOWLEDGE THAT IT WAS
FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR NOT."  ID.,
AT 280.  THE ADOPTION IN LINN OF THE RECKLESS-OR-KNOWING FALSEHOOD TEST
WAS REITERATED TIME AND AGAIN IN THE COURT'S OPINION.  SEE 383 U.S.,AT
61, 63, 65. 

OF COURSE, THE COURT ALSO SAID THAT RECOVERY WOULD BE PERMITTED IF
THE DEFAMATORY STATEMENTS WERE SHOWN TO HAVE BEEN MADE WITH MALICE. 
BUT THE COURT WAS OBVIOUSLY USING "MALICE" IN THE SPECIAL SENSE IT WAS
USED IN NEW YORK TIMES--AS A SHORTHAND EXPRESSION OF THE "KNOWLEDGE OF
FALSITY OR RECKLESS DISREGARD OF THE TRUTH" STANDARD.  SEE NEW YORK
TIMES CO. V. SULLIVAN, SUPRA, AT 279 - 280.  INSTRUCTIONS WHICH PERMIT
A JURY TO IMPOSE LIABILITY ON THE BASIS OF THE DEFENDANT'S HATRED,
SPITE, ILL WILL, OR DESIRE TO INJURE ARE "CLEARLY IMPERMISSIBLE." 
BECKLEY NEWSPAPERS CORP. V. HANKS, 389 U.S. 81, 82 (1967).  "(ILL WILL
TOWARD THE PLAINTIFF, OR BAD MOTIVES, ARE NOT ELEMENTS OF THE NEW YORK
TIMES STANDARD."  ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29, 52 N. 18
(1971).  (OPINION OF BRENNAN, J.).  ACCORD, GARRISON V. LOUISIANA, 379
U.S. 64, 73 - 74, 77 - 79 (1964); HENRY V. COLLINS, 380 U.S. 356
(1965); ROSENBLATT V. BAER, 383 U.S. 75, 84 (1966); GREENBELT
COOPERATIVE PUBLISHING ASSN. V. BRESLER, 398 U.S. 6, 9 - 11 (1970).  IT
IS THEREFORE CLEAR THAT THE LIBEL JUDGMENTS IN THIS CASE MUST BE
REVERSED BECAUSE OF THE COURT'S ERRONEOUS INSTRUCTIONS. 

THIS, HOWEVER, CANNOT BE THE END OF OUR INQUIRY.  THE COURT HAS
OFTEN RECOGNIZED THAT IN CASES INVOLVING FREE EXPRESSION WE HAVE THE
OBLIGATION, NOT ONLY TO FORMULATE PRINCIPLES CAPABLE OF GENERAL
APPLICATION, BUT ALSO TO REVIEW THE FACTS TO INSURE THAT THE SPEECH
INVOLVED IS NOT PROTECTED UNDER FEDERAL LAW.  NEW YORK TIMES CO. V.
SULLIVAN, SUPRA, AT 284 - 285; PICKERING V. BOARD OF EDUCATION, 391
U.S. 563, 574 - 575 (1968); GREENBELT COOPERATIVE PUBLISHING ASSN. V.
BRESLER, SUPRA, AT 11.  "WE MUST 'MAKE AN INDEPENDENT EXAMINATION OF
THE WHOLE RECORD', EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 235, SO AS
TO ASSURE OURSELVES THAT THE JUDGMENT DOES NOT CONSTITUTE A FORBIDDEN
INSTRUSION ON THE FIELD OF FREE EXPRESSION."  NEW YORK TIMES CO. V.
SULLIVAN, SUPRA, AT 285. 

WHILE THIS DUTY HAS BEEN MOST OFTEN RECOGNIZED IN THE CONTEXT OF
CLAIMS THAT THE EXPRESSION INVOLVED WAS ENTITLED TO FIRST AMENDMENT
PROTECTION, THE SAME OBLIGATION EXISTS IN CASES INVOLVING SPEECH
CLAIMED TO BE PROTECTED UNDER THE FEDERAL LABOR LAWS.  THIS OBLIGATION,
DERIVED FROM THE SUPREMACY OF FEDERAL LABOR LAW OVER INCONSISTENT STATE
REGULATION, HILL V. FLORIDA EX REL. WATSON, 325 U.S. 538 (1945);
TEAMSTERS LOCAL 24 V. OLIVER, 358 U.S. 283, 295 - 296 (1959), REQUIRES
US TO DETERMINE WHETHER ANY STATE LIBEL AWARD ARISING OUT OF THE
PUBLICATION OF THE UNION NEWSLETTER INVOLVED HERE WOULD BE INCONSISTENT
WITH THE PROTECTION FOR FREEDOM OF SPEECH IN LABOR DISPUTES RECOGNIZED
IN LINN. 

IT SHOULD BE CLEAR THAT THE NEWSLETTER'S USE OF THE EPITHET "SCAB"
WAS PROTECTED UNDER FEDERAL LAW AND CANNOT BE THE BASIS OF A STATE
LIBEL JUDGMENT.  RATHER THAN BEING A RECKLESS OR KNOWING FALSEHOOD,
NAMING THE APPELLEES AS SCABS WAS LITERALLY AND FACTUALLY TRUE.  ONE OF
THE GENERALLY ACCEPTED DEFINITIONS OF "SCAB" IS "ONE WHO REFUSES TO
JOIN A UNION," WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED
ED. 1961), AND IT IS UNDISPUTED THAT THE APPELLEES HAD IN FACT REFUSED
TO JOIN THE BRANCH.  TO BE SURE, THE WORD IS MOST OFTEN USED AS AN
INSULT OR EPITHET.  BUT LINN RECOGNIZED THAT FEDERAL LAW GIVES A UNION
LICENSE TO USE INTEMPERATE, ABUSIVE, OR INSULTING LANGUAGE WITHOUT FEAR
OF RESTRAINT OR PENALTY IF IT BELIEVES SUCH RHETORIC TO BE AN EFFECTIVE
MEANS TO MAKE ITS POINT.  INDEED, THE COURT OBSERVED THAT USE OF THIS
PARTICULAR EPITHET IS COMMON PARLANCE IN LABOR DISPUTES AND HAS
SPECIFICALLY BEEN HELD TO BE ENTITLED TO THE PROTECTION OF 7 OF THE
NLRA.  383 U.S.,AT 60 - 61. 

APPELLEES NONETHELESS ARGUE THAT THE PUBLICATION HERE MAY BE
ACTIONABLE UNDER STATE LAW, BASING THEIR CLAIM ON THE NEWSLETTER'S
PUBLICATION OF JACK LONDON'S "DEFINITION OF A SCAB."  APPELLEES CONTEND
THAT THIS CAN BE READ TO CHARGE THEM WITH HAVING "ROTTEN PRINCIPLES,"
WITH LACKING "CHARACTER," AND WITH BEING "TRAITORS)"; THAT THESE
CHARGES ARE UNTRUE; AND THAT APPELLANTS KNEW THEY WERE UNTRUE.  THE
SUPREME COURT OF VIRGINIA UPHELD THE DAMAGES AWARDS HERE ON THE BASIS
OF THESE CHARGES.  213 VA.,AT 384, 192 S.E.2D,AT 742. 

WE CANNOT AGREE.  WE BELIEVE THAT PUBLICATION OF JACK LONDON'S
RHETORIC IS EQUALLY ENTITLED TO THE PROTECTION OF THE FEDERAL LABOR
LAWS.  /15/  THE SINE QUA NON OF RECOVERY FOR DEFAMATION IN A LABOR
DISPUTE UNDER LINN IS THE EXISTENCE OF FALSEHOOD.  MR. JUSTICE CLARK
PUT IT QUITE BLUNTLY:  "THE MOST REPULSIVE SPEECH ENJOYS IMMUNITY
PROVIDED IT FALLS SHORT OF A DELIBERATE OR RECKLESS UNTRUTH."  383
U.S., AT 63.  BEFORE THE TEST OF RECKLESS OR KNOWING FALSITY CAN BE
MET, THERE MUST BE A FALSE STATEMENT OF FACT.  GERTZ V. ROBERT WELCH,
INC., POST, AT 339 - 340.  BUT, IN OUR VIEW, THE ONLY FACTUAL STATEMENT
IN THE DISPUTED PUBLICATION IS THE CLAIM THAT APPELLEES WERE SCABS,
THAT IS, THAT THEY HAD REFUSED TO JOIN THE UNION. 

THE DEFINITION'S USE OF WORDS LIKE "TRAITOR" CANNOT BE CONSTRUED AS
REPRESENTATIONS OF FACT.  AS THE COURT SAID LONG BEFORE LINN, IN
REVERSING A STATE COURT INJUNCTION OF UNION PICKETING, "TO USE LOOSE
LANGUAGE OR UNDEFINED SLOGANS THAT ARE PART OF THE CONVENTIONAL GIVE
AND-TAKE IN OUR ECONOMIC AND POLITICAL CONTROVERSIES--LIKE 'UNFAIR' OR
'FASCIST'--IS NOT TO FALSIFY FACTS."  CAFETERIA EMPLOYEES LOCAL 302 V.
ANGELOS, 320 U.S. 293, 295 (1943).  SUCH WORDS WERE OBVIOUSLY USED HERE
IN A LOOSE, FIGURATIVE SENSE TO DEMONSTRATE THE UNION'S STRONG
DISAGREEMENT WITH THE VIEWS OF THOSE WORKERS WHO OPPOSE UNIONIZATION. 
EXPRESSION OF SUCH AN OPINION, EVEN IN THE MOST PEJORATIVE TERMS, IS
PROTECTED UNDER FEDERAL LABOR LAW.  HERE, TOO, "THERE IS NO SUCH THING
AS A FALSE IDEA.  HOWEVER PERNICIOUS AN OPINION MAY SEEM, WE DEPEND FOR
ITS CORRECTION NOT ON THE CONSCIENCE OF JUDGES AND JURIES BUT ON THE
COMPETITION OF OTHER IDEAS."  GERTZ V. ROBERT WELCH, INC., POST, AT 339
- 340. 

APPELLEES' CLAIM IS SIMILAR TO THAT REJECTED BY THE COURT RECENTLY
IN GREENBELT COOPERATIVE PUBLISHING ASSN. V. BRESLER, 398 U.S. 6
(1970).  THERE, PETITIONERS HAD CHARACTERIZED THE POSITION OF THE
RESPONDENT, A PUBLIC FIGURE, IN CERTAIN NEGOTIATIONS AS "BLACKMAIL,"
AND HE HAD RECOVERED DAMAGES FOR LIBEL ON THE THEORY THAT PETITIONERS
KNEW THAT HE HAD COMMITTED NO SUCH CRIMINAL OFFENSE.  THE COURT
REVERSED, HOLDING THAT THIS USE OF THE WORD "BLACKMAIL"  COULD NOT BE
THE BASIS OF A LIBEL JUDGMENT UNDER THE NEW YORK TIMES STANDARD.  MR.
JUSTICE STEWART, WRITING FOR THE COURT, REASONED: 

     "IT IS SIMPLY IMPOSSIBLE TO BELIEVE THAT A READER WHO REACHED

  THE WORD 'BLACKMAIL' IN EITHER ARTICLE WOULD NOT HAVE UNDERSTOOD

  EXACTLY WHAT WAS MEANT: IT WAS BRESLER'S PUBLIC AND WHOLLY LEGAL

  NEGOTIATING PROPOSALS THAT WERE BEING CRITICIZED.  NO READER

  COULD HAVE THOUGHT THAT EITHER THE SPEAKERS AT THE MEETINGS OR

  THE NEWSPAPER ARTICLES REPORTING THEIR WORDS WERE CHARGING

BRESLER WITH THE COMMISSION OF A CRIMINAL OFFENSE.  ON THE

CONTRARY, EVEN THE MOST CARELESS READER MUST HAVE PERCEIVED THAT

  THE WORD WAS NO MORE THAN RHETORICAL HYPERBOLE, A VIGOROUS

  EPITHET USED BY THOSE WHO CONSIDERED BRESLER'S NEGOTIATING

  POSITION EXTREMELY UNREASONABLE."  398 U.S.,AT 14 (FOOTNOTE

  OMITTED). 

IT IS SIMILARLY IMPOSSIBLE TO BELIEVE THAT ANY READER OF THE
CARRIER'S CORNER WOULD HAVE UNDERSTOOD THE NEWSLETTER TO BE CHARGING
THE APPELLEES WITH COMMITTING THE CRIMINAL OFFENSE OF TREASON.  /16/
AS IN BRESLER, JACK LONDON'S "DEFINITION OF A SCAB" IS MERELY
RHETORICAL HYPERBOLE, A LUSTY AND IMAGINATIVE EXPRESSION OF THE
CONTEMPT FELT BY UNION MEMBERS TOWARDS THOSE WHO REFUSE TO JOIN.  THE
COURT IN LINN RECOGNIZED THAT SUCH EXAGGERATED RHETORIC WAS COMMONPLACE
IN LABOR DISPUTES AND PROTECTED BY FEDERAL LAW.  INDEED, WE NOTE THAT
THE NLRB HAS HELD THAT THE USE OF THIS VERY "DEFI4ITION OF A SCAB" IS
PERMISSIBLE UNDER FEDERAL LAW.  CAMBRIA CLAY PRODUCTS CO., 106 N.L.R.B.
267, 273 (1953), ENFORCED IN PERTINENT PART, 215 F.2D 48 (CA6 1954). 
IT HAS BECOME A FAMILIAR PIECE OF TRADE UNION LITERATURE; ACCORDING TO
UNDISPUTED TESTIMONY IN THIS CASE, IT HAS BEEN PUBLISHED COUNTLESS
TIMES IN UNION PUBLICATIONS OVER THE LAST 30 YEARS OR MORE.  PERMITTING
STATE LIBEL JUDGMENTS BASED ON PUBLICATION OF THIS PIECE OF LITERATURE
WOULD BE PLAINLY INCONSISTENT WITH THE UNION'S JUSTIFIABLE RELIANCE ON
THE PROTECTION OF FEDERAL LAW.     THIS IS NOT TO SAY THAT THERE MIGHT
NOT BE SITUATIONS WHERE THE USE OF THIS WRITING OR OTHER SIMILAR
RHETORIC IN A LABOR DISPUTE COULD BE ACTIONABLE, PARTICULARLY IF SOME
OF ITS WORDS WERE TAKEN OUT OF CONTEXT AND USED IN SUCH A WAY AS TO
CONVEY A FALSE REPRESENTATION OF FACT.  SEE GREENBELT COOPERATIVE
PUBLISHING ASSN. V. BRESLER, SUPRA, AT 13.  BUT IN THE CONTEXT OF THIS
CASE, NO SUCH FACTUAL REPRESENTATION CAN REASONABLY BE INFERRED, AND
THE PUBLICATION IS PROTECTED UNDER THE FEDERAL LABOR LAWS.  /17/
ACCORDINGLY, THE JUDGMENTS APPEALED FROM MUST BE

            REVERSED. 

/1/  34 FED.REG.  17605 (1969), 3 CFR 861 (1966 - 1970 COMPILATION),
AS AMENDED, 3 CFR 254 (1974).  THE EXECUTIVE ORDER WAS PROMULGATED ON
OCTOBER 29, 1969, AND BECAME EFFECTIVE ON JANUARY 1, 1970.  IT REMAINS
IN EFFECT WITH RESPECT TO MOST EMPLOYEES IN THE EXECUTIVE BRANCH
TODAY.  POSTAL EMPLOYEES, HOWEVER, ARE NO LONGER COVERED BY THE
EXECUTIVE ORDER.  THE POSTAL REORGANIZATION ACT OF 1970, 84 STAT. 719,
CONVERTED THE CABINET-LEVEL POST OFFICE DEPARTMENT INTO THE UNITED
STATES POSTAL SERVICE, AN "INDEPENDENT ESTABLISHMENT OF THE EXECUTIVE
BRANCH," 39 U.S.C. 201.  AS PART OF THIS REORGANIZATION, LABOR
MANAGEMENT RELATIONS IN THE POSTAL SERVICE WERE LARGELY PLACED UNDER
THE REGULATION OF THE NATIONAL LABOR RELATIONS ACT AND THE NLRB,
EFFECTIVE JULY 1, 1971.  SEE 39 U.S.C. 1201 - 1209.  WHILE THE BRANCH
APPARENTLY REMAINS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR LETTER
CARRIERS IN RICHMOND UNDER THE POSTAL REORGANIZATION ACT, THIS CASE
AROSE DURING THE BRIEF PERIOD WHEN THE EXECUTIVE ORDER WAS
CONTROLLING. 

/2/  SECTION 12 (C) OF THE EXECUTIVE ORDER PROVIDES THAT 

"(NOTHING IN THE AGREEMENT (BETWEEN AN AGENCY AND A LABOR
ORGANIZATION) SHALL REQUIRE AN EMPLOYEE TO BECOME OR TO REMAIN A MEMBER
OF A LABOR ORGANIZATION, OR TO PAY MONEY TO THE ORGANIZATION . . . ." 

THE POSTAL REORGANIZATION ACT CONTINUES THIS PROHIBITION OF UNION
SECURITY AGREEMENTS, 39 U.S.C. 1209 (C).  THE NLRA, OF COURSE, PERMITS
CERTAIN UNION SECURITY AGREEMENTS, 8 (A)(3), 61 STAT. 140, 29 U.S.C.
158 (A)(3), EXCEPT INSOFAR AS THEY MAY VIOLATE STATE LAW, 14 (B), 29
U.S.C. 164 (B).  SEE RETAIL CLERKS LOCAL 1625 V. SCHERMERHORN, 375 U.S.
96 (1963). 

/3/  THESE ACTIONS ARE ACTUALLY BASED ON VIRGINIA'S "INSULTING
WORDS" STATUTE, VA. CODE ANN. 8--630 (1957), WHICH PROVIDES: 

"ALL WORDS WHICH FROM THEIR USUAL CONSTRUCTION AND COMMON
ACCEPTATION ARE CONSTRUED AS INSULTS AND TEND TO VIOLENCE AND BREACH OF
THE PEACE SHALL BE ACTIONABLE." 

HOWEVER, THE VIRGINIA COURTS HAVE HELD THAT "(AN ACTION FOR
INSULTING WORDS UNDER CODE, 8-630 IS TREATED PRECISELY AS AN ACTION FOR
SLANDER OR LIBEL, FOR WORDS ACTIONABLE PER SE" WITH ONE EXCEPTION NOT
RELEVANT HERE.  CARWILE V. RICHMOND NEWSPAPERS, INC., 196 VA. 1, 6, 82
S.E.2D 588, 591 (1954).  SEE OPINION BELOW IN 213 VA. 377, 381, 192
S.E.2D 737, 740 (1972). 

/4/  AT LEAST ONE SUIT BROUGHT BY ONE OF THE OTHER 12 LETTER
CARRIERS WHOSE NAMES WERE LISTED IN THE JUNE NEWSLETTER HAS BEEN HELD
IN ABEYANCE PENDING THE OUTCOME OF THIS APPEAL.  THE POTENTIAL DAMAGES
LIABILITY GROWING OUT OF THIS PUBLICATION IS THUS GREATER EVEN THAN THE
$165,000 WHICH HAS ALREADY BEEN AWARDED. 

/5/  THE EXECUTIVE ORDER IS PLAINLY A REASONABLE EXERCISE OF THE
PRESIDENT'S RESPONSIBILITY FOR THE EFFICIENT OPERATION OF THE EXECUTIVE
BRANCH.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES V. HAMPTON, 77
L.R.R.M. 2977, AFF'D SUB NOM. WOLKOMIR V. FEDERAL LABOR RELATIONS
COUNCIL, 79 L.R.R.M. 2634 (CADC 1971), CERT. DENIED, 405 U.S. 920
(1972); MANHATTAN-BRONX POSTAL UNION V. GRONOUSKI, 121 U.S.APP.D.C.
321, 350 F.2D 451 (1965), CERT. DENIED, 382 U.S. 978 (1966); CF. CSC V.
NATIONAL ASSOCIATION OF LETTER CARRIERS, 413 U.S. 548, 555 (1973). 
MOREOVER, THE EXECUTIVE ORDER FINDS EXPRESS STATUTORY AUTHORIZATION IN
5 U.S.C. 7301, WHICH PROVIDES THAT "(THE PRESIDENT MAY PRESCRIBE
REGULATIONS FOR THE CONDUCT OF EMPLOYEES IN THE EXECUTIVE BRANCH."  IN
VIEW OF THE SUBSTANTIAL FEDERAL INTERESTS IN EFFECTIVE MANAGEMENT OF
THE BUSINESS OF THE NATIONAL GOVERNMENT AND EXCLUSIVE CONTROL OVER THE
CONDUCT OF FEDERAL EMPLOYEES, AND THIS CONGRESSIONAL AUTHORIZATION, WE
HAVE NO DIFFICULTY CONCLUDING THAT THE EXECUTIVE ORDER IS VALID AND MAY
CREATE RIGHTS PROTECTED AGAINST INCONSISTENT STATE LAWS THROUGH THE
SUPREMACY CLAUSE.  SEE UNITED STATES V. PINK, 315 U.S. 203, 230 - 232
(1942); YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579, 635 - 637
(1952) (JACKSON, J., CONCURRING); FARKAS V. TEXAS INSTRUMENTS, INC.,
375 F.2D 629, 632 (CA5), CERT. DENIED, 389 U.S. 977 (1967); FARMER V.
PHILADELPHIA ELECTRIC CO., 329 F.2D 3, 8 (CA3 1964). 

/6/  SECTION 1 OF THE ORDER GRANTS FEDERAL EMPLOYEES "THE RIGHT,
FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND
ASSIST A LABOR ORGANIZATION,"  AS WELL AS "TO REFRAIN FROM ANY SUCH
ACTIVITY," AND PROVIDES THAT "EACH EMPLOYEE SHALL BE PROTECTED IN THE
EXERCISE OF THIS RIGHT," MUCH AS EMPLOYEES IN THE PRIVATE SECTOR ARE
PROTECTED BY 7 OF THE NLRA.  SECTIONS 19 (A) AND 19 (B) OF THE ORDER
DEFINE UNFAIR LABOR PRACTICES OF AGENCY MANAGEMENT AND UNIONS,
RESPECTIVELY, WHICH ARE LARGELY TAKEN FROM THE PROHIBITIONS OF 8 (A)
AND 8 (B) OF THE NLRA.  AND 10 OF THE EXECUTIVE ORDER ESTABLISHES A
SYSTEM OF EXCLUSIVE RECOGNITION OF LABOR ORGANIZATIONS CHOSEN BY A
MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE UNIT THROUGH REPRESENTATION
ELECTIONS BY SECRET BALLOT, AS UNDER 9 (C)(1) OF THE NLRA. 

PRIMARY RESPONSIBILITY FOR ADMINISTRATION OF THIS SYSTEM IS GIVEN TO
THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, WHO
LARGELY PERFORMS THE ROLE OF THE NLRB IN THE PRIVATE SECTOR.  UNDER 6
(A) OF THE ORDER, HE IS EMPOWERED TO MAKE DETERMINATIONS OF APPROPRIATE
COLLECTIVE-BARGAINING UNITS, TO SUPERVISE THE CONDUCT OF REPRESENTATION
ELECTIONS, AND TO DECIDE COMPLAINTS ALLEGING UNFAIR LABOR PRACTICES. 
UPON A FINDING OF A VIOLATION OF THE ORDER, 6 (B) EMPOWERS THE
ASSISTANT SECRETARY TO ORDER GOVERNMENT AGENCIES OR UNIONS TO CEASE AND
DESIST FROM VIOLATIONS OF THE ORDER, AND TO TAKE APPROPRIATE
AFFIRMATIVE ACTION.  APPEALS FROM DECISIONS OF THE ASSISTANT SECRETARY
ARE HEARD BY THE FEDERAL LABOR RELATIONS COUNCIL, ESTABLISHED UNDER 4
OF THE ORDER, WHICH IS ALSO GIVEN A SIGNIFICANT POLICYMAKING FUNCTION. 

/7/  MOST NOTABLE AMONG THE DEPARTURES FROM THE NLRA ARE THE
PROHIBITION OF STRIKES AND PICKETING IN 19 (B)(4) OF THE EXECUTIVE
ORDER AND THE LIMITATION OF SUBJECTS OF BARGAINING IN 11 (B).  SEE
GENERALLY HAMPTON, FEDERAL LABOR-MANAGEMENT RELATIONS:  A PROGRAM IN
EVOLUTION, 21 CATH.U.L.REV.  493 (1972). 

/8/  SEE NAUMOFF, GROUND RULES FOR RECOGNITION UNDER EXECUTIVE ORDER
11491, 22 LAB.L.J. 100 (1970); CF. HART, GOVERNMENT LABOR'S NEW
FRONTIERS THROUGH PRESIDENTIAL DIRECTIVE, 48 VA.L.REV.  898, 904 - 905
(1962) (DISCUSSING EXEC. ORDER 10988, PREDECESSOR OF THE PRESENT
ORDER). 

/9/  NAUMOFF, SUPRA, N. 8, AT 103.  COMPARE THE SIMILAR LANGUAGE OF
THE BOARD IN STEWART-WARNER CORP., 102 N.L.R.B. 1153, 1158 (1953),
QUOTED IN LINN V. PLANT GUARD WORKERS, 383 U.S. 53, 60 (1966). 

/10/  SECTION 8 (C) PROVIDES: 

"THE EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION, OR THE
DISSEMINATION THEREOF, . . . SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN
UNFAIR LABOR PRACTICE . . . IF SUCH EXPRESSION CONTAINS NO THREAT OF
REPRISAL OR FORCE OR PROMISE OF BENEFIT." 

/11/  THIS POLICY OF AGENCY NEUTRALITY IS DERIVED FROM TWO PARTS OF
THE EXECUTIVE ORDER.  THE PREAMBLE OF THE ORDER RECITES THAT 

"THE WELL-BEING OF EMPLOYEES AND EFFICIENT ADMINISTRATION OF THE
GOVERNMENT ARE BENEFITED BY PROVIDING EMPLOYEES AN OPPORTUNITY TO
PARTICIPATE IN THE FORMULATION AND IMPLEMENTATION OF PERSONNEL POLICIES
AND PRACTICES AFFECTING THE CONDITIONS OF THEIR EMPLOYMENT." 

AND 1 (A) DIRECTS THE HEAD OF EACH AGENCY TO 

"TAKE THE ACTION REQUIRED TO ASSURE THAT EMPLOYEES IN THE AGENCY ARE
APPRISED OF THEIR RIGHTS UNDER THIS SECTION AND THAT NO INTERFERENCE,
RESTRAINT, COERCION, OR DISCRIMINATION IS PRACTICED WITHIN HIS AGENCY
TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION." 

SEE HAMPTON, SUPRA, N. 7, AT 501 - 502. 

/12/  IN OTHER CONTEXTS, OTHER PROVISIONS OF THE NLRA MAY BE SOURCES
OF PROTECTION FOR UNION FREEDOM OF SPEECH.  FOR EXAMPLE, ONE SUCH
SOURCE WOULD BE THE SYSTEM OF REPRESENTATION ELECTIONS BY SECRET BALLOT
ESTABLISHED BY 9 (C)(1) OF THE ACT.  WIDE LATITUDE FOR WHAT IS WRITTEN
AND SAID IN ELECTION CAMPAIGNS IS NECESSARY TO INSURE THE FREE EXCHANGE
OF INFORMATION AND OPINIONS, AND THUS TO PROMOTE THE INFORMED CHOICE BY
THE EMPLOYEES NEEDED TO MAKE THE SYSTEM WORK FAIRLY AND EFFECTIVELY. 
THE SAME POLICY IS APPLICABLE UNDER THE EXECUTIVE ORDER, WHICH
ESTABLISHES IN 10 A SIMILAR SYSTEM OF REPRESENTATION ELECTIONS FOR
PUBLIC EMPLOYEES. 

/13/  SECTION 1 OF THE EXECUTIVE ORDER DOES NOT GRANT FEDERAL
EMPLOYEES THE RIGHT, GUARANTEED BY 7 OF THE NLRA FOR EMPLOYEES IN THE
PRIVATE SECTOR, "TO ENGAGE IN OTHER CONCERTED ACTIVITIES FOR THE
PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION." 
THE RIGHT TO ATTEMPT TO PERSUADE OTHERS TO JOIN THE UNION, HOWEVER, IS
DERIVED FROM THE RIGHTS TO FORM, JOIN, AND ASSIST A UNION, AS WELL AS
FROM THE RIGHT TO ENGAGE IN CONCERTED ACTIVITIES.  THE ABSENCE OF
MENTION OF A RIGHT TO ENGAGE IN CONCERTED ACTIVITIES IS OBVIOUSLY NO
MORE THAN A REFLECTION OF THE FACT THAT THE ORDER DOES NOT PERMIT
FEDERAL EMPLOYEE UNIONS TO ENGAGE IN STRIKES OR PICKETING.  THE
PROHIBITION OF PICKETING AND THE LACK OF PROTECTION FOR CONCERTED
ACTIVITIES MIGHT BE THOUGHT TO INDICATE AN INTENTION IN THE EXECUTIVE
ORDER TO REGULATE THE LOCATION OR FORM OF EMPLOYEE SPEECH TO A SOMEWHAT
GREATER EXTENT THAN UNDER THE NLRA, BUT WE DO NOT PERCEIVE ANY
INTENTION TO CURTAIL IN ANY WAY THE CONTENT OF UNION SPEECH. 

/14/  APPELLEES ARGUE THAT, RATHER THAN BEING ENTITLED TO THE
PROTECTION OF LINN, THE UNION'S ORGANIZING EFFORTS HERE WERE UNLAWFUL
ATTEMPTS TO "COERCE"  THEM INTO JOINING THE UNION IN VIOLATION OF 19
(B)(1) OF THE ORDER.  BUT WE WOULD EXPECT 19 (B)(1) TO BE INTERPRETED
IN LIGHT OF THE CONSTRUCTION THE COURT HAS GIVEN THE PARALLEL PROVISION
OF THE NLRA, 8 (B)(1)(A).  IN NLRB V. DRIVERS LOCAL 639, 362 U.S. 274
(1960), THE COURT HELD THAT 8 (B)(1)(A) WAS "A GRANT OF POWER TO THE
BOARD LIMITED TO AUTHORITY TO PROCEED AGAINST UNION TACTICS INVOLVING
VIOLENCE, INTIMIDATION, AND REPRISAL OR THREATS THEREOF."  ID., AT
290.  MR. JUSTICE BRENNAN EMPHASIZED THAT THERE WAS NO INTENTION TO
RESTRICT THE USE BY UNIONS OF METHODS OF PEACEFUL PERSUASION, QUOTING
SENATOR TAFT'S REMARKS DURING THE DEBATE ON THE TAFT-HARTLEY ACT: 

"IT SEEMS TO ME VERY CLEAR THAT SO LONG AS A UNION-ORGANIZING DRIVE
IS CONDUCTED BY PERSUASION, BY PROPAGANDA, SO LONG AS IT HAS EVERY
LEGITIMATE PURPOSE, THE BOARD CANNOT IN ANY WAY INTERFERE WITH IT . . .
. 

"THE BOARD MAY SAY, 'YOU CAN PERSUADE THEM; YOU CAN PUT UP SIGNS;
YOU CAN CONDUCT ANY FORM OF PROPAGANDA YOU WANT TO IN ORDER TO PERSUADE
THEM, BUT YOU CANNOT, BY THREAT OF FORCE OR THREAT OF ECONOMIC
REPRISAL, PREVENT THEM FROM EXERCISING THEIR RIGHT TO WORK.'"  ID., AT
287 - 288. 

IT IS TRUE THAT THE EXECUTIVE ORDER PROVIDES THAT A UNION MAY NOT
"INTERFERE WITH" AN EMPLOYEE IN THE EXERCISE OF HIS RIGHT TO REFRAIN
FROM JOINING THE UNION, AS WELL AS INCORPORATING THE WORDING OF THE
NLRA MAKING IT UNLAWFUL TO "RESTRAIN"  OR "COERCE" AN EMPLOYEE.  THE
COURT IN DRIVERS LOCAL 639 POINTED OUT, HOWEVER, THAT EVEN THE WORDS
"INTERFERE WITH," WHICH ORIGINALLY APPEARED IN A DRAFT OF THE TAFT
HARTLEY ACT, WERE INTENDED TO HAVE A "LIMITED APPLICATION" AND TO REACH
"REPREHENSIBLE PRACTICES" LIKE VIOLENCE AND THREATS OF LOSS OF
EMPLOYMENT, BUT NOT METHODS OF PEACEFUL PERSUASION.  ID., AT 286.  IT
SEEMS LIKELY THAT THE EXECUTIVE ORDER WAS SIMILARLY NOT INTENDED TO
LIMIT UNION PROPAGANDA OR PROHIBIT ANY OTHER METHOD OF PEACEFUL
PERSUASION. 

IN ANY EVENT, APPELLEES' CONTENTION IS PROPERLY ADDRESSED TO THE
ASSISTANT SECRETARY IN THE FIRST INSTANCE, THROUGH AN UNFAIR LABOR
PRACTICE COMPLAINT, AND NOT TO THIS COURT.  EVEN IF APPELLEES SHOULD
ULTIMATELY PROVE TO BE CORRECT, LINN IS STILL APPLICABLE HERE, AND
STATE LIBEL REMEDIES ARE PRE-EMPTED UNLESS APPELLEES CAN SHOW THAT THE
PUBLICATION WAS KNOWINGLY FALSE OR MADE WITH RECKLESS DISREGARD FOR THE
TRUTH. 

/15/  IN VIEW OF OUR CONCLUSION THAT THE PUBLICATION HERE WAS
PROTECTED UNDER THE FEDERAL LABOR LAWS, WE HAVE NO OCCASION TO CONSIDER
THE FIRST AMENDMENT ARGUMENTS ADVANCED BY APPELLANTS. 

/16/  ON THE CONTRARY, IT IS APPARENT FROM THE RECORD THAT THE BASIS
FOR THE LIBEL ACTION IN THIS CASE WAS THE USE OF THE EPITHET "SCAB"
RATHER THAN THE CLAIMED CHARGE OF TREASON.  IT WAS THE PUBLICATION OF
THE "LIST OF SCABS" WHICH DISTURBED THE APPELLEES, AND WHICH MOVED
APPELLEE AUSTIN TO COMPLAIN PRIOR TO THE JUNE PUBLICATION AT ISSUE AND
TO THREATEN TO SUE IF HE WAS CALLED A SCAB AGAIN.  MOREOVER, IT APPEARS
THAT THE ONLY ASSERTED DAMAGE TO APPELLEES FOLLOWED FROM THE
PUBLICATION OF THE FACT THAT THEY WERE "SCABS."  APPELLEES TESTIFIED
ONLY THAT THEIR COWORKERS AND OTHERS BECAME HOSTILE TO THEM, REFERRING
TO THEM AS THE "SCABS" THE UNION WAS TALKING ABOUT, AND THAT THIS MADE
THEM TENSE AND NERVOUS AND CAUSED HEADACHES.  THERE IS NO EVIDENCE THAT
ANYONE TOOK LITERALLY THE USE OF THE WORD "TRAITOR" OR THAT APPELLEES
WERE IN ANY WAY CONCERNED ABOUT OR AFFECTED BY THIS CHARGE.     NOR CAN
IT BE CLAIMED THAT THE JURY'S VERDICT IS ITSELF SOME INDICATION THAT
THE CHARGE OF "TRAITOR" WAS CONSTRUED AS A DEFAMATORY REPRESENTATION OF
FACT.  THERE IS CERTAINLY NOTHING IN THE TRIAL COURT'S INSTRUCTIONS
WHICH WOULD SUGGEST THAT THE NEWSLETTER'S USE OF "SCAB" WAS NOT THE
BASIS FOR THE JURY'S VERDICT.  THE COURT DID NOT INSTRUCT THE JURY THAT
THE USE OF "SCAB"  COULD NOT BE THE BASIS FOR IMPOSING LIABILITY.  THE
COURT DID NOT EVEN INSTRUCT THE JURY THAT A TRUE STATEMENT OF FACT
COULD NOT BE THE FOUNDATION FOR LIABILITY.  INDEED, THE TRIAL COURT'S
INSTRUCTION THAT "INSULTS" MADE WITH "ILL WILL" WERE SUFFICIENT TO
IMPOSE LIABILITY FAIRLY INVITED THE JURY TO BASE ITS VERDICT ON THE
NEWSLETTER'S USE OF "SCAB." 

/17/  SINCE WE FIND THAT ANY LIBEL AWARD ON THE BASIS OF THIS
PUBLICATION WOULD BE INCONSISTENT WITH THE PROTECTION OF FEDERAL LAW,
WE NEED NOT RULE ON APPELLANTS' ALTERNATIVE ARGUMENT THAT THE DAMAGES
AWARDED HERE WERE EXCESSIVE.  WE THINK IT IMPORTANT AGAIN TO POINT OUT,
HOWEVER, THAT "IN VIEW OF THE PROPENSITY OF JURIES TO AWARD EXCESSIVE
DAMAGES FOR DEFAMATION, THE AVAILABILITY OF LIBEL ACTIONS MAY POSE A
THREAT TO THE STABILITY OF LABOR UNIONS AND SMALLER EMPLOYERS."  LINN,
383 U.S., AT 64.  IT IS FOR THIS REASON THAT THE COURT IN LINN HELD
THAT "(IF THE AMOUNT OF DAMAGES AWARDED IS EXCESSIVE, IT IS THE DUTY OF
THE TRIAL JUDGE TO REQUIRE A REMITTITUR OR A NEW TRIAL."  ID., AT 65 -
66 (EMPHASIS ADDED). 

MR. JUSTICE DOUGLAS, CONCURRING IN THE RESULT. 

AS THE COURT STATES, THIS CASE CALLS UPON US TO DETERMINE THE EXTENT
TO WHICH STATE LIBEL LAWS MAY BE USED TO PENALIZE STATEMENTS EXPRESSED
IN THE COURSE OF A LABOR DISPUTE.  IN THIS INSTANCE VIRGINIA'S LIBEL
LAWS WERE USED TO IMPOSE MASSIVE DAMAGES /1/ UPON A LABOR UNION FOR
PUBLICLY EXPRESSING, DURING THE HEAT OF AN ORGANIZATIONAL DRIVE, ITS
HIGHLY PEJORATIVE BUT NOT TOO SURPRISING OPINION OF "SCABS."  I AGREE
THAT THIS EXPRESSION IS PROTECTED AND THAT THE JUDGMENTS BELOW CANNOT
STAND.  UNLIKE THE COURT, HOWEVER, I DO NOT VIEW THE TASK OF
RECONCILING THE COMPETING STATE AND FEDERAL INTERESTS IN THIS AREA AS A
DIFFICULT ONE, NOR DO I VIEW THE FEDERAL INTEREST AS MERELY A MATTER OF
FEDERAL LABOR POLICY.  I THINK THAT SUCH EXPRESSION IS CONSTITUTIONALLY
PROTECTED AND I CANNOT AGREE THAT THERE MIGHT BE SITUATIONS "WHERE THE
USE OF THIS WRITING OR OTHER SIMILAR RHETORIC IN A LABOR DISPUTE COULD
BE ACTIONABLE." 

I AGREE WITH THE COURT THAT FEDERAL LABOR POLICY, AS MANIFESTED BOTH
IN THE NLRA AND IN EXECUTIVE ORDER 11491, FAVORS UNINHIBITED, ROBUST
AND WIDE OPEN DEBATE IN LABOR DISPUTES.  I DISAGREE WITH THE COURT,
HOWEVER, ON THE REACH OF THAT POLICY.  I THINK THAT THE PRE-EMPTIVE
EFFECT OF FEDERAL LABOR REGULATION IS SUCH THAT STATES ARE PROHIBITED
FROM INTERFERING WITH THOSE FEDERALLY REGULATED RELATIONS BY ARMING
DISPUTANTS IN LABOR CONTROVERSIES WITH AN ARSENAL OF DEFAMATION LAWS. 
SEE LINN V. PLANT GUARD WORKERS, 383 U.S. 53, 69 (FORTAS, J.,
DISSENTING).  THOUGH REFERRING TO THIS STATE OF AFFAIRS AS FEDERAL
LABOR POLICY, I EXPRESSLY REJECT ANY IMPLICATION THAT THE POLICY COULD
BE OTHERWISE WERE CONGRESS OR THE EXECUTIVE TO REASSESS THE UNDERLYING
CONSIDERATIONS AND ATTEMPT TO REFORMULATE THE POLICY. 

WE SAID IN THORNHILL V. ALAPAMA, 310 U.S. 88, 102, THAT, "(IN THE
CIRCUMSTANCES OF OUR TIMES THE DISSEMINATION OF INFORMATION CONCERNING
THE FACTS OF A LABOR DISPUTE MUST BE REGARDED AS WITHIN THAT AREA OF
FREE DISCUSSION THAT IS GUARANTEED BY THE CONSTITUTION."  /2/  SINCE I
DO NOT THINK THAT DISCUSSION IS FREE IN THE CONSTITUTIONAL SENSE WHEN
IT SUBJECTS THE SPEAKER TO THE PENALTY OF LIBEL JUDGMENTS, IN MY VIEW
THE ABILITY OF CONGRESS OR THE EXECUTIVE TO FORMULATE ANY LABOR POLICY
PENALIZING THOSE WHO MIGHT "SAY NAUGHTY THINGS DURING LABOR DISPUTES"
/3/  IS PRECISELY NIL.  I BELIEVE THE FRAMERS DID ALL THE POLICYMAKING
NECESSARY IN THIS AREA WHEN THEY DEVISED THE CONSTITUTIONAL FRAMEWORK
WHICH BINDS US ALL.  AS I STATED IN GERTZ V. ROBERT WELCH, INC., POST,
AT 356 - 357, THE FIRST AMENDMENT WOULD PROHIBIT CONGRESS FROM PASSING
ANY LIBEL LAW /4/  AND THE LIMITATION ON LABOR POLICY FORMULATION IS
BUT AN EXAMPLE OF THE GENERAL RESTRICTION. 

IF THE STATES WERE NOT LIMITED TO THE SAME EXTENT AS THE FEDERAL
GOVERNMENT IN RESTRAINING DISCUSSION, THE PRE-EMPTIVE EFFECT OF FEDERAL
LABOR REGULATIONS WOULD BE CRUCIAL.  BUT I HAVE ALWAYS THOUGHT THAT THE
APPLICATION OF THE FIRST AMENDMENT TO THE STATES THROUGH THE FOURTEENTH
/5/  LEAVES THE STATES AS CONSTITUTIONALLY IMPOTENT AS THE FEDERAL
GOVERNMENT IN ENFORCING SUCH RESTRICTIONS.  THIS CONCLUSION IS
COMPELLED IF FREEDOM OF SPEECH IS REGARDED, AS I THINK IT MUST BE, AS A
PRIVILEGE OR IMMUNITY OF UNITED STATES CITIZENSHIP WITHIN THE MEANING
OF THAT TERM IN THE FOURTEENTH AMENDMENT RATHER THAN SOME EPHEMERAL
RIGHT PROTECTED AGAINST STATE INTRUSION ONLY TO THE EXTENT A MAJORITY
OF THIS COURT MIGHT VIEW AS "IMPLICIT IN THE CONCEPT OF ORDERED
LIBERTY."  /6/  AS I STATED IN GERTZ V. ROBERT WELCH, INC., POST, AT
358 - 359: 

"(THE COURT FREQUENTLY HAS RESTED STATE FREE SPEECH AND FREE PRESS
DECISIONS ON THE FOURTEENTH AMENDMENT GENERALLY RATHER THAN ON THE DUE
PROCESS CLAUSE ALONE.  THE FOURTEENTH AMENDMENT SPEAKS NOT ONLY OF DUE
PROCESS BUT ALSO OF 'PRIVILEGES AND IMMUNITIES' OF UNITED STATES
CITIZENSHIP.  I CAN CONCEIVE OF NO PRIVILEGE OR IMMUNITY WITH A HIGHER
CLAIM TO RECOGNITION AGAINST STATE ABRIDGEMENT THAN THE FREEDOMS OF
SPEECH AND OF THE PRESS." 

SINCE LABOR DISPUTES ARE "'WITHIN THAT AREA OF FREE DISCUSSION THAT
IS GUARANTEED BY THE CONSTITUTION'" AND SINCE IN MY VIEW THE STATES AND
THE FEDERAL GOVERNMENT ARE EQUALLY BOUND TO HONOR THAT GUARANTEE, THE
FATE OF THE LIBEL AWARD IN THIS CASE IS CLEAR.  "DISCUSSION IS NOT FREE
. . . WITHIN THE MEANING OF OUR FIRST AMENDMENT, IF THAT DISCUSSION MAY
BE PENALIZED BY JUDGMENTS FOR DAMAGES IN LIBEL ACTIONS."  LINN V. PLANT
GUARD WORKERS, 383 U.S.,AT 68 (BLACK, J., DISSENTING).  THE EXTENSIVE
DAMAGES AWARDED IN THIS CASE WELL ILLUSTRATE THAT ANY PROTECTION SHORT
OF A COMPLETE BAR TO SUITS FOR DEFAMATION WILL BE COLD COMFORT TO THOSE
WHO ENTER THE ARENA OF FREE DISCUSSION IN LABOR DISPUTES.  THE
IMAGINATIVE VITUPERATION WHICH IS COMMONPLACE IN LABOR STRIFE WELL
EXCEEDS THE "NORMAL" LEVELS OF HYPERBOLE TO WHICH MOST MEMBERS OF THE
COMMUNITY MAY BE ACCUSTOMED.  A JURY DETERMINATION IN A LIBEL SUIT, NO
MATTER WHAT THE STANDARD OF RECOVERY, IS AS LIKELY TO BE INFLUENCED BY
COMMUNITY ATTITUDES TOWARD UNIONIZATION AND THE OFTEN COLORFUL
INDIVIDUALS INVOLVED IN ITS PROMOTION AS BY ANY REAL APPRECIATION FOR
THE DAMAGE PERCEIVED AS INFLICTED BY ANY ALLEGED FALSEHOOD. 

SINCE I DO NOT BELIEVE THAT THE JUDGMENTS BELOW ARE CONSISTENT WITH
EITHER FEDERAL LABOR POLICY OR WITH CONSTITUTIONALLY PROTECTED FREE
SPEECH, I CONCUR IN THEIR REVERSAL. 

/1/  THE JUDGMENTS IN THIS CASE AWARDED DAMAGES OF $165,000 BUT THE
TOTAL FIGURE MIGHT BE LARGER SINCE AT LEAST ONE OTHER SUIT ARISING OUT
OF THE SAME PUBLICATION HAS BEEN HELD IN ABEYANCE PENDING THE OUTCOME
OF THIS APPEAL. 

/2/  THE VIEW HAS BEEN EXPRESSED THAT THE FIRST AMENDMENT SHOULD
ACCORD PROTECTION ONLY TO EXPLICITLY POLITICAL SPEECH.  SEE BORK,
NEUTRAL PRINCIPLES AND SOME FIRST AMENDMENT PROBLEMS, 47 IND.L.J. 1, 20
(1971).  DECISIONS SUCH AS THORNHILL, HOWEVER, REJECT ANY SUCH
EMASCULATIVE READING OF THE FIRST AMENDMENT.  AS MR. JUSTICE BLACK HAS
SAID:  "THERE IS NOTHIN IN THE LANGUAGE OF THE FIRST AMENDMENT TO
INDICATE THAT IT PROTECTS ONLY POLITICAL SPEECH, ALTHOUGH TO PROVIDE
SUCH PROTECTION WAS NO DOUBT A STRONG REASON FOR THE AMENDMENT'S
PASSAGE."  H. BLACK, A CONSTITUTIONAL FAITH 46 (1969).  THE IMPORTANCE
OF FREE DISCUSSION IN ALL AREAS WAS WELL PERCEIVED IN THIS COUNTRY
BEFORE OUR CONSTITUTIONAL SCHEME WAS FORMULATED.  IN A LETTER SENT TO
THE INHABITANTS OF QUEBEC IN 1774, THE CONTINENTAL CONGRESS SPOKE OF
"FIVE GREAT RIGHTS," STATING IN PART:  "THE LAST RIGHT WE SHALL
MENTION, REGARDS THE FREEDOM OF THE PRESS.  THE IMPORTANCE OF THIS
CONSISTS, BESIDES THE ADVANCEMENT OF TRUTH, SCIENCE, MORALITY, AND ARTS
IN GENERAL, IN ITS DIFFUSION OF LIBERAL SENTIMENTS ON THE
ADMINISTRATION OF GOVERNMENT . . . ."  1 JOURNALS OF THE CONTINENTAL
CONGRESS 1774 - 1789, P. 108 (FORD ED. 1904) (EMPHASIS ADDED). 

/3/  SEE LINN V. PLANT GUARD WORKERS, 383 U.S. 53, 67 (BLACK, J.,

  DISSENTING). 

/4/  SEE ALSO ROSENBLATT V. BAER, 383 U.S. 75, 90 (CONCURRING).  IN
EXPLAINING THE CONSTITUTIONAL HISTORY WHICH LED HIM TO THE SAME
CONCLUSION, MR. JUSTICE BLACK SAID OF THE FRAMERS:  "THEY KNEW WHAT
HISTORY WAS BEHIND THEM; THEY WERE FAMILIAR WITH THE SAD AND USELESS
TRAGEDIES OF COUNTLESS PEOPLE WHO HAD HAD THEIR TONGUES PLUCKED OUT,
THEIR EARS CUT OFF OR THEIR HANDS CHOPPED OFF, OR EVEN WORSE THINGS
DONE TO THEM, BECAUSE THEY DARED TO SPEAK OR WRITE THEIR OPINIONS. 
THEY WANTED TO ORDAIN IN THIS COUNTRY THAT THE NEW CENTRAL GOVERNMENT
SHOULD NOT TELL THE PEOPLE WHAT THEY SHOULD BELIEVE OR SAY OR
PUBLISH."  H. BLACK, A CONSTITUTIONAL FAITH 46 (1969). 

/5/  SEE, E. G., STROMBERG V. CALIFORNIA, 283 U.S. 359, 368 - 369;
CASES COMPILED IN GERTZ V. ROBERT WELCH, INC., POST, AT 359 N. 8
(DOUGLAS, J., DISSENTING). 

/6/  SEE PALKO V. CONNECTICUT, 302 U.S. 319. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

TODAY THE COURT EXTENDS THE RULE OF NEW YORK TIMES CO. V. SULLIVAN,
376 U.S. 254 (1964), TO ENCOMPASS EVERY DEFAMATORY STATEMENT MADE IN A
CONTEXT THAT FALLS WITHIN THE MAJORITY'S EXPANSIVE CONSTRUCTION OF THE
PHRASE "LABOR DISPUTE."  BECAUSE THIS DECISION APPEARS TO ALLOW BOTH
UNIONS AND EMPLOYERS TO DEFAME INDIVIDUAL WORKERS WITH LITTLE OR NO
RISK OF BEING HELD ACCOUNTABLE FOR DOING SO, I DISSENT. 

       I 

EXECUTIVE ORDER 11491 ESTABLISHES FOR CERTAIN FEDERAL EMPLOYEES A
LEGAL SYSTEM FOR LABOR-MANAGEMENT RELATIONS ESSENTIALLY SIMILAR TO THAT
PROVIDED EMPLOYEES IN THE PRIVATE SECTOR BY THE NATIONAL LABOR
RELATIONS ACT.  (NLRA).  THE COURT ACKNOWLEDGES THAT THE TWO SCHEMES
ARE NOT IDENTICAL BUT FINDS NO PERSUASIVE REASON TO DIFFERENTIATE
BETWEEN THEM FOR THE PURPOSE OF DETERMINING THEIR PRE-EMPTIVE IMPACT ON
STATE LIBEL LAW.  WITH THIS MUCH I AGREE. 

THE MAJORITY THEN CONCLUDES THAT THE INSTANT CASE IS CONTROLLED BY
LINN V. PLANT GUARD WORKERS, 383 U.S. 53 (1966).  IN LINN THE COURT
CONSTRUED THE NLRA TO BAR STATE LIBEL JUDGMENTS FOR DEFAMATORY
STATEMENTS MADE IN A "LABOR DISPUTE"  COVERED BY THE ACT, UNLESS THOSE
STATEMENTS WERE MADE "WITH KNOWLEDGE OF THEIR FALSITY OR WITH RECKLESS
DISREGARD OF WHETHER THEY WERE TRUE OR FALSE . . . ."  ID., AT 65. 
THUS THE COURT ADOPTED AS A RULE OF LABOR LAW PRE-EMPTION THE
CONSTITUTIONAL STANDARD OF MEDIA LIABILITY FOR DEFAMATION ORIGINALLY
ENUNCIATED FOR LIBEL ACTIONS BY PUBLIC OFFICIALS IN NEW YORK TIMES CO.,
SUPRA, AND SUBSEQUENTLY EXTENDED TO PUBLIC FIGURES IN CURTIS PUBLISHING
CO. V. BUTTS, 388 U.S. 130 (1967).  IN THE INSTANT CASE THE MAJORITY
RELIES ON THE ANALOGY TO THE NLRA TO SUPPORT ITS CONCLUSION THAT
EXECUTIVE ORDER 11491 PRE-EMPTS THE LIBEL JUDGMENTS IN FAVOR OF THESE
APPELLEES BECAUSE LIABILITY WAS NOT PREMISED ON THE KNOWING-OR-RECKLESS
FALSITY STANDARD THAT LINN HELD APPLICABLE TO DEFAMATORY STATEMENTS
MADE IN A "LABOR DISPUTE."  I PERCEIVE NO REASON IN LAW OR IN PUBLIC
POLICY FOR SUCH A SWEEPING EXTENSION OF NEW YORK TIMES.  LINN IS
DISTINGUISHABLE ON ITS FACTS AND IN ITS RATIONALE, AND THE NEW YORK
TIMES RULE OF KNOWLEDGE OF FALSITY OR RECKLESS DISREGARD FOR THE TRUTH
IS THEREFORE INAPPLICABLE TO THE CASE AT HAND. 

LINN INVOLVED A CLASSIC CONFRONTATION BETWEEN UNION AND MANAGEMENT
LOCKED IN COMBAT DURING AN ORGANIZATIONAL CAMPAIGN.  LINN WAS ASSISTANT
GENERAL MANAGER OF PINKERTON'S NATIONAL DETECTIVE AGENCY, INC.
PINKERTON'S EMPLOYEES WERE THEN THE SUBJECT OF AN ORGANIZATIONAL
CAMPAIGN BY THE UNITED PLANT GUARD WORKERS.  IN THE COURSE OF THAT
EFFORT THE UNION PUBLISHED A LEAFLET URGING PINKERTON'S EMPLOYEES TO
JOIN THE UNION AND ALLEGEDLY ACCUSING LINN OF "LYING" TO THE EMPLOYEES
AND "ROBBING" THEM OF PAY INCREASES.  LINN SUED THE UNION FOR LIBEL,
BUT THE TRIAL COURT HELD THAT THE NATIONAL LABOR RELATIONS BOARD HAD
EXCLUSIVE JURISDICTION OVER THE SUBJECT MATTER OF THE DISPUTE.  IT
FOUND THAT LINN'S COMPLAINT CHARGED THE UNION WITH CONDUCT ARGUABLY
CONSTITUTING AN UNFAIR LABOR PRACTICE UNDER THE NLRA AND THAT SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959), THEREFORE
REQUIRED DISMISSAL OF THE SUIT. 

THIS COURT DISAGREED WITH THAT REASONING.  IT RECOGNIZED AN
"'OVERRIDING STATE INTEREST' IN PROTECTING ITS RESIDENTS FROM MALICIOUS
LIBELS . . .," 383 U.S., AT 61, AND NOTED THAT FEDERAL LABOR LAW DOES
NOT PROTECT INDIVIDUALS AGAINST INJURY TO REPUTATION.  EVEN WHERE
STATEMENTS ACTIONABLE AS LIBEL UNDER STATE LAW WOULD ALSO CONSTITUTE AN
UNFAIR LABOR PRACTICE, THE BOARD'S INTEREST WOULD BE LIMITED TO THEIR
COERCIVE OR MISLEADING CHARACTER, AND THE BOARD WOULD BE POWERLESS TO
AWARD DAMAGES OR TAKE ANY OTHER STEP TO REDRESS THE INJURY TO THE
REPUTATION OF A DEFAMED INDIVIDUAL.  THE COURT THEREFORE HELD THAT THE
NLRA DOES NOT WHOLLY PRE-EMPT STATE LIBEL LAW, EVEN WHERE THE SUBJECT
MATTER OF THE LIBEL ACTION MIGHT ALSO CONSTITUTE AN UNFAIR LABOR
PRACTICE UNDER THE ACT.  EVEN IN THAT CIRCUMSTANCE, THE STATES REMAIN
FREE TO AWARD DAMAGES FOR DEFAMATORY FALSEHOODS PUBLISHED WITH
KNOWLEDGE OF THEIR FALSITY OR IN RECKLESS DISREGARD OF THE TRUTH. 

THE RESULT OF LINN IS A RULE OF PARTIAL PRE-EMPTION.  THE STATES MAY
AWARD LIBEL JUDGMENTS ON THE BASIS OF THE KNOWING-OR-RECKLESS-FALSITY
FORMULATION BUT ARE PRE-EMPTED FROM ALLOWING DEFAMATION PLAINTIFFS TO
RECOVER UNDER ANY LESS DEMANDING STANDARD OF LIABILITY.  THE LEVEL OF
PRE-EMPTION IS DEFINED BY NEW YORK TIMES CO. V. SULLIVAN.  BUT THE LINN
RULE OF PARTIAL PRE-EMPTION HAS ANOTHER DIMENSION, ONE THAT
DISTINGUISHES THE CASE AT HAND.  THAT IS THE SCOPE OF THE RULE--IN
OTHER WORDS, THE RANGE OF CIRCUMSTANCES IN WHICH STATE LIBEL LAW IS
PARTIALLY DISPLACED BY FEDERAL LABOR LAW.  THIS IS DETERMINED BY THE
PHRASE "LABOR DISPUTE."     IN LINN THE COURT RELIED ON THE PRESENCE OF
A "LABOR DISPUTE" TO JUSTIFY PARTIAL PRE-EMPTION OF STATE LIBEL LAW,
BUT IT DID NOT DELINEATE THE BOUNDARIES OF THAT CONCEPT.  INDEED, THE
COURT HAD NO OCCASION TO DO SO, FOR, AS WE HAVE SEEN, LINN INVOLVED A
PROTOTYPICAL ORGANIZATIONAL CAMPAIGN CONFRONTATION BETWEEN LABOR AND
MANAGEMENT.  GIVEN THAT FACTUAL SETTING, THE COURT FOUND A POTENTIAL
CONFLICT BETWEEN FEDERAL LABOR LAW AND STATE LIBEL LAW.  ONE SIDE OR
THE OTHER COULD USE DEFAMATION ACTIONS AS AN UNAUTHORIZED WEAPON IN THE
BATTLE FOR THE LOYALTY OF UNORGANIZED EMPLOYEES AND POSSIBLY UNDERMINE
THE FEDERAL POLICIES FAVORING UNINHIBITED DEBATE BETWEEN UNION AND
MANAGEMENT.  THE INSTANT DISPUTE IS SO FAR REMOVED FROM THE FACTUAL
SETTING IN LINN THAT THE CONSIDERATIONS SUPPORTING PARTIAL PRE-EMPTION
OF STATE LIBEL LAW IN THAT CASE SIMPLY DO NOT OBTAIN HERE. 

APPELLANT UNION HAD LONG BEEN RECOGNIZED BY THE POSTAL AUTHORITIES
AS THE EXCLUSIVE COLLECTIVE-BARGAINING REPRESENTATIVE FOR THE LETTER
CARRIERS IN THE RICHMOND AREA.  OF A MAXIMUM OF 435 LETTER CARRIERS IN
THE UNIT, ALL SAVE 15 WERE ACTIVE UNION MEMBERS.  THUS THE UNION WAS
SOLIDLY ENTRENCHED, WITH APPROXIMATELY 96% OF THE LETTER CARRIERS
SIGNED UP.  THE THREE APPELLEES WERE AMONG THOSE 15 EMPLOYEES WHO
ELECTED NOT TO JOIN THE UNION.  THERE IS NO EVIDENCE OF CONCERTED
ACTION BY THESE 15 LETTER CARRIERS' THEY WERE ACTING INDIVIDUALLY,
MOTIVATED BY PRINCIPLE OR PERSONAL CONVICTION OR PERHAPS, AS APPELLANT
UNION ALLEGES, BY A DESIRE NOT TO PAY DUES.  IN ANY EVENT, THE THREE
APPELLEES HAD WORKED AS LETTER CARRIERS FOR 14, 13, AND 12 YEARS,
RESPECTIVELY, WITHOUT ANY SORT OF TROUBLE EITHER WITH THE POSTAL
AUTHORITIES OR WITH THEIR FELLOW EMPLOYEES.  IN FACT, THERE IS NO
EVIDENCE THAT THE APPELLEES WERE INVOLVED IN A DISPUTE WITH ANYONE
UNTIL THE UNION OFFICIALS BECAME DISPLEASED WITH APPELLEES' EXERCISE OF
THEIR ADMITTED RIGHT NOT TO JOIN THE UNION AND BEGAN TO SUBJECT THEM TO
PUBLIC RIDICULE AND VILIFICATION. 

THE MAJORITY CHARACTERIZES THE UNION'S ACTIONS AS PART OF AN ONGOING
ORGANIZATION CAMPAIGN, ANTE, AT 267, AND TREATS THIS SITUATION AS A
"LABOR DISPUTE" WITHIN THE INTENDMENT OF THE LINN RULE OF PARTIAL PRE
EMPTION.  BUT THIS IS ACCURATE ONLY IF FEDERAL LABOR LAW IS
SUFFICIENTLY IMPLICATED TO WARRANT PRE-EMPTION OF STATE LIBEL LAW
WHENEVER AN EMPLOYEE DECLINES AN INVITATION TO BECOME A UNION MEMBER. 
CERTAINLY, THERE WAS NO DISPUTE HERE BETWEEN LABOR AND MANAGEMENT. 
THERE WAS ALSO NO CONFLICT BETWEEN COMPETING LABOR ORGANIZATIONS AND NO
EFFORT, EITHER ORGANIZED OR OTHERWISE, TO ENCOURAGE DEFECTION FROM
APPELLANT UNION.  THERE WAS, IN SHORT, NO DISPUTE OF ANY SORT SAVE THE
UNION'S ATTEMPT TO COERCE APPELLEES BY SCURRILOUS AND DEFAMATORY
STATEMENTS TO DO WHAT THEY HAD AN ADMITTED LEGAL RIGHT NOT TO DO.  THUS
THE UNION, BY ITS OWN COERCIVE CONDUCT, CREATED A "DISPUTE," THE
PRESENCE OF WHICH, ACCORDING TO THE MAJORITY, PROVIDES PARTIAL IMMUNITY
FROM THE CONSEQUENCES OF ITS WRONGDOING UNDER STATE LAW. 

IN MY VIEW THIS IS AN UNNECESSARY AND UNWISE EXTENSION OF LINN. 
HERE THERE WAS NO CONFRONTATION BETWEEN POWERFUL FORCES OF LABOR AND
MANAGEMENT, NO CLASH OF OPPOSING ECONOMIC INTERESTS THAT MIGHT WARRANT
THE ATTENTION OF FEDERAL REGULATORY AUTHORITIES, AND HENCE NO PROSPECT
WHATEVER THAT RELIANCE ON STATE LIBEL LAW MIGHT SUBVERT THE FEDERAL
SCHEME FOR THE FAIR AND PEACEFUL RESOLUTION OF LABOR DISPUTES.  YET THE
MAJORITY NEVERTHELESS HOLDS THAT THE STATE LIBEL JUDGMENTS ENTERED
BELOW ARE PRE-EMPTED BY FEDERAL LABOR LAW.  THIS CONCLUSION SEEMS TO ME
A NEEDLESS DENIGRATION OF THE "OVERRIDING STATE INTEREST"  IN
COMPENSATING INDIVIDUALS FOR INJURY TO REPUTATION.  MOREOVER, IT LEAVES
THESE APPELLEES WITHOUT EFFECTIVE REMEDY FOR THE WRONG DONE THEM.  FAR
FROM REPRESENTING A POWERFUL ECONOMIC INTEREST THAT COULD FIGHT FOR
ITSELF WITHIN THE FEDERALLY CREATED SYSTEM OF INDIVIDUAL SELF
GOVERNMENT, THESE APPELLEES WERE DEFENSELESS INDIVIDUALS.  /1/  IN
THEIR "DISPUTE" WITH THE UNION, APPELLEES FOUND THEMSELVES IN THAT
STATE OF HELPLESS INEQUALITY THAT FIRST GAVE SOCIAL MEANING TO THE
LABOR MOVEMENT.  AND AFTER TODAY'S DECISION, THE INDIVIDUAL EMPLOYEE'S
EXPOSURE TO HARM WITHOUT EFFECTIVE REMEDY IS NOT LIMITED TO DEFAMATION
BY A LABOR UNION, FOR PRESUMABLY A CORPORATE EMPLOYER MAY ALSO CLAIM
THE KNOWING-OR-RECKLESS-FALSITY PRIVILEGE AS A BAR TO LIABILITY FOR
DEFAMATORY STATEMENTS CONCERNING AN EMPLOYEE'S DECISION TO JOIN OR
REMAIN IN A UNION.  I DO NOT BELIEVE LINN CAN FAIRLY BE CONSTRUED TO
WARRANT ANY SUCH REGRESSIVE RESULT. 

        II 

AS AN ALTERNATIVE BASIS FOR ITS DECISION, THE COURT CONCLUDES THAT
APPELLEES ARE PROHIBITED FROM RECOVERING BECAUSE THERE WAS NO LIBEL,
INDEED NO FALSEHOOD OF ANY KIND, IN THE UNION'S PUBLICATION.  ACCORDING
TO THE MAJORITY, THE ONLY FACTUAL ALLEGATION CONTAINED IN THE ARTICLE
WAS THAT APPELLEES WERE "SCABS,"  AS THAT TERM IS USED IN THE LABOR
MOVEMENT, AND THAT "NAMING THE APPELLEES AS SCABS WAS LITERALLY AND
FACTUALLY TRUE."  ANTE, AT 283.  IT IS TRUE, OF COURSE, THAT APPELLEES
WERE IDENTIFIED BY NAME AS "SCABS" IN THE UNION NEWSLETTER, BUT IT IS
ALSO TRUE THAT THE USE OF THE WORD "SCAB" WAS EXPLICATED BY A LONG AND
VITUPERATIVE ARTICLE APPEARING IMMEDIATELY ABOVE APPELLEES' NAMES.  THE
ONLY FAIR WAY TO READ THIS ARTICLE IS TO SUBSTITUTE EACH APPELLEE'S
NAME FORTHE WORD "SCAB" WHENEVER IT APPEARS.  SO CONSTRUED, THE PLAIN
MEANING AND IMPORT OF THIS PUBLICATION WAS THAT APPELLEES LACKED
CHARACTER, THAT THEY HAD "ROTTEN PRINCIPLES,"  AND THAT THEY WERE
TRAITORS TO THEIR GOD, THEIR COUNTRY, THEIR FAMILIES, AND THEIR
FRIENDS.  APPELLANTS MAKE NO ATTEMPT TO PROVE THE TRUTH OF THESE
ACCUSATIONS, CONTENDING INSTEAD THAT THEY WERE MERE HYPERBOLE INVOLVING
NO STATEMENT OF FACT.  THE MAJORITY ACCEPTS THIS ARGUMENT, IN MY VIEW
ERRONEOUSLY. 

IT SEEMS TO ME THAT THE MAJORITY FAILS TO DISTINGUISH BETWEEN
DEFAMATORY REFERENCES TO AN ANONYMOUS GROUP, CLASS, OR OCCUPATION, AND
A SIMILAR DESCRIPTION OF A NAMED INDIVIDUAL.  IT IS ONE THING TO SAY
THAT LAWYERS ARE SHYSTERS AND THAT DOCTORS ARE QUACKS, BUT IT IS QUITE
ANOTH"R MATTER--INDEED, IT IS LIBELOUS PER SE--TO PUBLISH THAT LAWYER
JONES IS A SHYSTER OR THAT DR. SMITH IS A QUACK.  HERE THE UNION DID
NOT MERELY VOICE ITS OPINION OF "SCABS"  GENERALLY; IT IDENTIFIED THESE
APPELLEES BY NAME AND SPECIFICALLY IMPUGNED THEIR CHARACTER. 

I WOULD HOLD THAT FEDERAL LAW DOES NOT PROHIBIT APPELLEES FROM
RECOVERING FROM APPELLANT UNION FOR INJURY TO REPUTATION.  I WOULD
REVERSE AND REMAND FOR A NEW TRIAL IN ACCORD WITH OUR DECISION IN GERTZ
V. ROBERT WELCH, INC., POST, P. 323. 

/1/  THE PUBLICATION WAS SENT IN THE UNION'S PAPER TO ALL MEMBERS
AND ALSO WAS POSTED ON THE BULLETIN BOARD.  APPELLEES HAD NO MEANS TO
REPLY OR DEFEND THEIR REPUTATIONS. 

MOZART G. RATNER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WERE GEORGE B. DRIESEN AND ISRAEL STEINGOLD. 

PARKER E. CHERRY AND STEPHEN M. KAPRAL ARGUED THE CAUSE AND FILED A
BRIEF FOR APPELLEES.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY J. ALBERT
WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION
OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND BY MELVIN L.
WULF AND JOEL M. GORA FOR THE AMERICAN CIVIL LIBERTIES UNION. 

JAMES NEWTON WILHOIT III, REX H. REED, AND JOHN L. KILCULLEN FILED A
BRIEF FOR THE NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :



















LEHMAN V. CITY OF SHAKER HEIGHTS, 418 U.S. 298 


       LEHMAN V. CITY OF SHAKER HEIGHTS ET AL.

CERTIORARI TO THE SUPREME COURT OF OHIO

        NO. 73 - 328.  ARGUED FEBRUARY 26 - 27, 1974--DECIDED JUNE

 25, 1974; 34 OHIO ST.2D 143, 296 N.E.2D 683, AFFIRMED. 


    PETITIONER, A CANDIDATE FOR STATE OFFICE, WHO WAS REFUSED

  AVAILABLE ADVERTISING SPACE ON VEHICLES OF A CITY TRANSIT SYSTEM,

  BROUGHT THIS SUIT CHALLENGING THE CONSTITUTIONALITY OF THE

  MUNICIPAL POLICY ON WHICH THE REFUSAL WAS BASED OF NOT PERMITTING

  POLITICAL ADVERTISING BUT ALLOWING OTHER TYPES OF PUBLIC TRANSIT

  ADVERTISING.  THE STATE COURTS DECLINED TO GIVE PETITIONER

  RELIEF, THE OHIO SUPREME COURT HOLDING THAT THE CITY'S REFUSAL

  DID NOT VIOLATE A CANDIDATE'S FREE SPEECH OR EQUAL PROTECTION

  RIGHTS.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 302 - 308. 

MR. JUSTICE BLACKMUN, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE

  WHITE, AND MR. JUSTICE REHNQUIST, CONCLUDED THAT CAR CARD SPACE

  ON A CITY TRANSIT SYSTEM IS NOT A FIRST AMENDMENT FORUM AND THAT

  HERE THE DECISION TO LIMIT TRANSIT ADVERTISEMENTS TO INNOCUOUS

  AND LESS CONTROVERSIAL COMMERCIAL AND SERVICE-ORIENTED

  ADVERTISING--THUS MINIMIZING CHANCES OF ABUSE, APPEARANCES OF

  POLITICAL FAVORITISM, AND THE RISK OF IMPOSING UPON A CAPTIVE

  AUDIENCE--IS WITHIN THE CITY'S DISCRETION AND INVOLVES NO FIRST

  OR FOURTEENTH AMENDMENT VIOLATION.  PP. 302 - 304. 

     MR. JUSTICE DOUGLAS CONCLUDED THAT PETITIONER, THOUGH FREE TO

  EXPRESS HIS VIEWS TO A WILLING AUDIENCE, HAS NO CONSTITUTIONAL

RIGHT TO FORCE HIS MESSAGE UPON A CAPTIVE AUDIENCE, WHICH USES

  PUBLIC TRANSIT VEHICLES, NOT AS A PLACE FOR DISCUSSION, BUT ONLY

  AS A MEANS OF TRANSPORT.  PP. 305 - 308. 

   BLACKMUN, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN

  OPINION, IN WHICH BURGER, C. J., AND WHITE AND REHNQUIST, JJ.,

  JOINED.  DOUGLAS, J., FILED AN OPINION CONCURRING IN THE

  JUDGEMENT, POST, P. 305.  BRENNAN, J., FILED A DISSENTING

  OPINION, IN WHICH STEWART, MARSHALL, AND POWELL, JJ., JOINED,

  POST, P. 308. 

MR. JUSTICE BLACKMUN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE WHITE, AND MR. JUSTICE
REHNQUIST JOIN. 

THIS CASE PRESENTS THE QUESTION WHETHER A CITY WHICH OPERATES A
PUBLIC RAPID TRANSIT SYSTEM AND SELLS ADVERTISING SPACE FOR CAR CARDS
ON ITS VEHICLES IS REQUIRED BY THE FIRST AND FOURTEENTH AMENDMENTS TO
ACCEPT PAID POLITICAL ADVERTISING ON BEHALF OF A CANDIDATE FOR PUBLIC
OFFICE. 

IN 1970, PETITIONER HARRY J. LEHMAN WAS A CANDIDATE FOR THE OFFICE
OF STATE REPRESENTATIVE TO THE OHIO GENERAL ASSEMBLY FOR DISTRICT 56. 
THE DISTRICT INCLUDES THE CITY OF SHAKER HEIGHTS.  ON JULY 3, 1970,
PETITIONER SOUGHT TO PROMOTE HIS CANDIDACY BY PURCHASING CAR CARD SPACE
ON THE SHAKER HEIGHTS RAPID TRANSIT SYSTEM FOR THE MONTHS OF AUGUST,
SEPTEMBER, AND OCTOBER.  THE GENERAL ELECTION WAS SCHEDULED FOR
NOVEMBER 3.  PETITIONER'S PROPOSED COPY CONTAINED HIS PICTURE AND READ:

        HARRY J. LEHMAN IS OLD-FASHIONED. 

        ABOUT HONESTY, INTEGRITY AND GOOD GOVERNMENT

        "STATE REPRESENTATIVE--DISTRICT 56 (X) HARRY J. LEHMAN." 

           APP. 39A. 

ADVERTISING SPACE ON THE CITY'S TRANSIT SYSTEM IS MANAGED BY
RESPONDENT METROMEDIA, INC., AS EXCLUSIVE AGENT UNDER CONTRACT WITH THE
CITY.  THE AGREEMENT BETWEEN THE CITY AND METROMEDIA PROVIDES: 

     "15 . . . THE CONTRACTOR SHALL NOT PLACE POLITICAL ADVERTISING

  IN OR UPON ANY OF THE SAID CARS OR IN, UPON OR ABOUT ANY OTHER

  ADDITIONAL AND FURTHER SPACE GRANTED HEREUNDER."  /1/ 

WHEN PETITIONER APPLIED FOR SPACE, /2/  HE WAS INFORMED BY
METROMEDIA THAT, ALTHOUGH SPACE WAS THEN AVAILABLE, THE MANAGEMENT
AGREEMENT WITH THE CITY DID NOT PERMIT POLITICAL ADVERTISING.  /3/  THE
SYSTEM, HOWEVER, ACCEPTED ADS FROM CIGARETTE COMPANIES, BANKS, SAVINGS
AND LOAN ASSOCIATIONS, LIQUOR COMPANIES, RETAIL AND SERVICE
ESTABLISHMENTS, CHURCHES, AND CIVIC AND PUBLIC-SERVICE ORIENTED
GROUPS.  /4/  THERE WAS UNCONTRADICTED TESTIMONY AT THE TRIAL THAT
DURING THE 26 YEARS OF PUBLIC OPERATION, THE SHAKER HEIGHTS SYSTEM,
PURSUANT TO CITY COUNCIL ACTION, HAD NOT ACCEPTED OR PERMITTED ANY
POLITICAL OR PUBLIC ISSUE ADVERTISING ON ITS VEHICLES.  APP. 30A -
32A. 

WHEN PETITIONER DID NOT SUCCEED IN HIS EFFORT TO HAVE HIS COPY
ACCEPTED, HE SOUGHT DECLARATORY AND INJUNCTIVE RELIEF IN THE STATE
COURTS OF OHIO WITHOUT SUCCESS.  THE SUPREME COURT OF OHIO CONCLUDED
THAT "THE CONSTITUTIONALLY PROTECTED RIGHT OF FREE SPEECH WITH RESPECT
TO FORUMS FOR ORAL SPEECH, OR THE DISSEMINATION OF LITERATURE ON A
CITY'S STREETS, DOES NOT EXTEND TO COMMERCIAL OR POLITICAL ADVERTISING
ON RAPID TRANSIT VEHICLES."  34 OHIO ST.2D 143, 145 - 146, 296 N.E.2D
683, 685 (1973).  THERE WAS NO EQUAL PROTECTION VIOLATION, THE COURT
SAID, BECAUSE, "(AS A CLASS, ALL CANDIDATES FOR POLITICAL OFFICE ARE
TREATED ALIKE UNDER THE SHAKER HEIGHTS RAPID TRANSIT SYSTEM'S
COMMERCIAL ADVERTISING POLICY."  ID., AT 148, 296 N.E.2D,AT 686.  THE
THREE DISSENTING JUSTICES VIEWED THE TRANSIT SYSTEM'S ADVERTISING SPACE
AS A FREE SPEECH FORUM AND WOULD HAVE HELD THAT NO VALID GOVERNMENTAL
INTEREST WAS FURTHERED BY THE DIFFERENTIAL TREATMENT BETWEEN POLITICAL
AND OTHER ADVERTISING.  A POLICY EXCLUDING POLITICAL ADVERTISEMENTS, IN
THEIR VIEW, WOULD THEREFORE DENY POLITICAL ADVERTISERS THE EQUAL
PROTECTION OF THE LAW.  WE GRANTED CERTIORARI IN ORDER TO CONSIDER THE
IMPORTANT FIRST AND FOURTEENTH AMENDMENT QUESTION THE CASE PRESENTED. 
/5/  414 U.S. 1021 (1973). 

IT IS URGED THAT THE CAR CARDS HERE CONSTITUTE A PUBLIC FORUM
PROTECTED BY THE FIRST AMENDMENT, AND THAT THERE IS A GUARANTEE OF
NONDISCRIMINATORY ACCESS TO SUCH PUBLICLY OWNED AND CONTROLLED AREAS OF
COMMUNICATION "REGARDLESS OF THE PRIMARY PURPOSE FOR WHICH THE AREA IS
DEDICATED."  BRIEF FOR PETITIONER 14. 

WE DISAGREE.  IN PACKER CORP. V. UTAH, 285 U.S. 105, 110 (1932) MR.
JUSTICE BRANDEIS, IN SPEAKING FOR A UNANIMOUS COURT, RECOGNIZED THAT
"THERE IS A DIFFERENCE WHICH JUSTIFIES THE CLASSIFICATION BETWEEN
DISPLAY ADVERTISING AND THAT IN PERIODICALS OR NEWSPAPERS."  IN PACKER
THE COURT UPHELD A UTAH STATUTE THAT MADE IT A MISDEMEANOR TO ADVERTISE
CIGARETTES ON "'ANY BILL BOARD, STREET CAR SIGN, STREET CAR, PLACARD,'"
BUT EXEMPTED DEALER'S SIGNS ON THEIR PLACES OF BUSINESS AND CIGARETTE
ADVERTISING "'IN ANY NEWSPAPER, MAGAZINE, OR PERIODICAL.'"  ID., AT
107.  THE COURT FOUND NO EQUAL PROTECTION VIOLATION.  IT REASONED THAT
VIEWERS OF BILLBOARDS AND STREETCAR SIGNS HAD NO "CHOICE OR VOLITION"
TO OBSERVE SUCH ADVERTISING AND HAD THE MESSAGE "THRUST UPON THEM BY
ALL THE ARTS AND DEVICES THAT SKILL CAN PRODUCE . . . . THE RADIO CAN
BE TURNED OFF, BUT NOT SO THE BILLBOARD OR STREET CAR PLACARD."  ID.,
AT 110.  "THE STREETCAR AUDIENCE IS A CAPTIVE AUDIENCE.  IT IS THERE AS
A MATTER OF NECESSITY, NOT OF CHOICE."  PUBLIC UTILITIES COMM'N V.
POLLAK, 343 U.S. 451, 486 (1952) (DOUGLAS, J., DISSENTING).  IN SUCH
SITUATIONS, "(THE LEGISLATURE MAY RECOGNIZE DEGREES OF EVIL AND ADAPT
ITS LEGISLATION ACCORDINGLY."  PACKER CORP. V. UTAH, 285 U.S.,AT 110. 
CF. BREARD V. ALEXANDRIA, 341 U.S. 622 (1951). 

THESE SITUATIONS ARE DIFFERENT FROM THE TRADITIONAL SETTINGS WHERE
FIRST ADMENDMENT VALUES INALTERABLY PREVAIL.  LORD DUNEDIN, IN M'ARA V.
MAGISTRATES OF EDINBURG, (1913) SESS. CAS. 1059, 1073 - 1074, SAID,
"(THE TRUTH IS THAT OPEN SPACES AND PUBLIC PLACES DIFFER VERY MUCH IN
THEIR CHARACTER, AND BEFORE YOU COULD SAY WHETHER A CERTAIN THING COULD
BE DONE IN A CERTAIN PLACE YOU WOULD HAVE TO KNOW THE HISTORY OF THE
PARTICULAR PLACE."  ALTHOUGH AMERICAN CONSTITUTIONAL JURISPRUDENCE, IN
THE LIGHT OF THE FIRST AMENDMENT, HAS BEEN JEALOUS TO PRESERVE ACCESS
TO PUBLIC PLACES FOR PURPOSES OF FREE SPEECH, THE NATURE OF THE FORUM
AND THE CONFLICTING INTERESTS INVOLVED HAVE REMAINED IMPORTANT IN
DETERMINING THE DEGREE OF PROTECTION AFFORDED BY THE AMENDMENT TO THE
SPEECH IN QUESTION.  SEE, E.G., COX V. NEW HAMPSHIRE, 312 U.S. 569
(1941); BREARD V. ALEXANDRIA, SUPRA; POULOS V. NEW HAMPSHIRE, 345 U.S.
395 (1953); COX V. LOUISIANA, 379 U.S. 559 (1965); ADDERLEY V. FLORIDA,
385 U.S. 39 (1966); RED LION BROADCASTING CO. V. FCC, 395 U.S. 367
(1969); POLICE DEPARTMENT OF CHICAGO V. MOSLEY, 408 U.S. 92 (1972);
GRAYNED V. CITY OF ROCKFORD, 408 U.S. 104 (1972); COLUMBIA BROADCASTING
V. DEMOCRATIC NATIONAL COMMITTEE, 412 U.S. 94 (1973); PITTSBURGH PRESS
CO. V. PITTSBURGH COMM'N ON HUMAN RELATIONS, 413 U.S. 376 (1973). 

HERE, WE HAVE NO OPEN SPACES, NO MEETING HALL, PARK, STREET CORNER,
OR OTHER PUBLIC THOROUGHFARE.  INSTEAD, THE CITY IS ENGAGED IN
COMMERCE.  IT MUST PROVIDE RAPID, CONVENIENT, PLEASANT, AND INEXPENSIVE
SERVICE TO THE COMMUTERS OF SHAKER HEIGHTS.  THE CAR CARD SPACE,
ALTHOUGH INCIDENTAL TO THE PROVISION OF PUBLIC TRANSPORTATION, IS A
PART OF THE COMMERCIAL VENTURE.  IN MUCH THE SAME WAY THAT A NEWSPAPER
OR PERIODICAL, OR EVEN A RADIO OR TELEVISION STATION, NEED NOT ACCEPT
EVERY PROFFER OF ADVERTISING FROM THE GENERAL PUBLIC, A CITY TRANSIT
SYSTEM HAS DISCRETION TO DEVELOP AND MAKE REASONABLE CHOICES CONCERNING
THE TYPE OF ADVERTISING THAT MAY BE DISPLAYED IN ITS VEHICLES.  IN
MAKING THESE CHOICES, THIS COURT HAS HELD THAT A PUBLIC UTILITY "WILL
BE SUSTAINED IN ITS PROTECTION OF ACTIVITIES IN PUBLIC PLACES WHEN
THOSE ACTIVITIES DO NOT INTERFERE WITH THE GENERAL PUBLIC CONVENIENCE,
COMFORT AND SAFETY."  PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S.,AT
464 - 465. 

BECAUSE STATE ACTION EXISTS, HOWEVER, THE POLICIES AND PRACTICES
GOVERNING ACCESS TO THE TRANSIT SYSTEM'S ADVERTISING SPACE MUST NOT BE
ARBITRARY, CAPRICIOUS, OR INVIDIOUS.  HERE, THE CITY HAS DECIDED THAT
"(PURVEYORS OF GOODS AND SERVICES SALEABLE IN COMMERCE MAY PURCHASE
ADVERTISING SPACE ON AN EQUAL BASIS, WHETHER THEY BE HOUSE BUILDERS OR
BUTCHERS."  34 OHIO ST.2D,AT 146, 296 N.E.2D,AT 685.  THIS DECISION IS
LITTLE DIFFERENT FROM DECIDING TO IMPOSE A 10-, 25-, OR 35-CENT FARE,
OR FROM CHANGING SCHEDULES OR THE LOCATION OF BUS STOPS, PUBLIC
UTILITIES COMM'N V. POLLAK, 343 U.S.,AT 465.  REVENUE EARNED FROM LONG
TERM COMMERCIAL ADVERTISING COULD BE JEOPARDIZED BY A REQUIREMENT THAT
SHORT-TERM CANDIDACY OR ISSUE-ORIENTED ADVERTISEMENTS BE DISPLAYED ON
CAR CARDS.  USERS WOULD BE SUBJECTED TO THE BLARE OF POLITICAL
PROPAGANDA.  THERE COULD BE LURKING DOUBTS ABOUT FAVORITISM, AND STICKY
ADMINISTRATIVE PROBLEMS MIGHT ARISE IN PARCELING OUT LIMITED SPACE TO
EAGER POLITICIANS.  IN THESE CIRCUMSTANCES, THE MANAGERIAL DECISION TO
LIMIT CAR CARD SPACE TO INNOCUOUS AND LESS CONTROVERSIAL COMMERCIAL AND
SERVICE ORIENTED ADVERTISING DOES NOT RISE TO THE DIGNITY OF A FIRST
AMENDMENT VIOLATION.  WERE WE TO HOLD TO THE CONTRARY, DISPLAY CASES IN
PUBLIC HOSPITALS, LIBRARIES, OFFICE BUILDINGS, MILITARY COMPOUNDS, AND
OTHER PUBLIC FACILITIES IMMEDIATELY WOULD BECOME HYDE PARKS OPEN TO
EVERY WOULD-BE PAMPHLETEER AND POLITICAN.  THIS THE CONSTITUTION DOES
NOT REQUIRE. 

NO FIRST AMENDMENT FORUM IS HERE TO BE FOUND.  THE CITY CONSCIOUSLY
HAS LIMITED ACCESS TO ITS TRANSIT SYSTEM ADVERTISING SPACE IN ORDER TO
MINIMIZE CHANCES OF ABUSE, THE APPEARANCE OF FAVORITISM, AND THE RISK
OF IMPOSING UPON A CAPTIVE AUDIENCE.  THESE ARE REASONABLE LEGISLATIVE
OBJECTIVES ADVANCED BY THE CITY IN A PROPRIETARY CAPACITY.  IN THESE
CIRCUMSTANCES, THERE IS NO FIRST OR FOURTEENTH AMENDMENT VIOLATION. 

THE JUDGMENT OF THE SUPREME COURT OF OHIO IS AFFIRMED. 

IT IS SO ORDERED. 

/1/  METROMEDIA HAS A WRITTEN METRO TRANSIT ADVERTISING COPY POLICY
SETTING FORTH THE FOLLOWING CRITERIA: 

"(1) METRO TRANSIT ADVERTISING WILL NOT DISPLAY ADVERTISING COPY
THAT IS FALSE, MISLEADING, DECEPTIVE AND/OR OFFENSIVE TO THE MORAL
STANDARDS OF THE COMMUNITY, OR CONTRARY TO GOOD TASTE.  COPY WHICH
MIGHT BE CONTRARY TO THE BEST INTERESTS OF THE TRANSIT SYSTEMS, OR
WHICH MIGHT RESULT IN PUBLIC CRITICISM OF THE ADVERTISING INDUSTRY
AND/OR TRANSIT ADVERTISING WILL NOT BE ACCEPTABLE. 

"(2) METRO TRANSIT ADVERTISING WILL NOT ACCEPT ANY POLITICAL COPY
THAT PICTORIALLY, GRAPHICALLY OR OTHERWISE STATES OR SUGGESTS THAT
PROPONENTS OR OPPONENTS OF THE PERSONS OR MEASURES ADVERTISED ARE
VULGAR, GREEDY, IMMORAL, MONOPOLISTIC, ILLEGAL OR UNFAIR. 

        .          .          .         . 

"(10) POLITICAL ADVERTISING WILL NOT BE ACCEPTED ON FOLLOWING
SYSTEMS:  SHAKER RAPID--MAPLE HEIGHTS--NORTH OLMSTED--EUCLID, OHIO." 
SHAKER HEIGHTS'  EXHIBIT A. 

/2/  MR. LEHMAN TESTIFIED, "WE ARE USING VARIOUS METHODS (OF
PROMOTING MY CANDIDACY), INCLUDING NEWSPAPER ADVERTISING . . . . WE
PLAN TO USE DIRECT MAIL ADVERTISING, POSTCARDS, AND CIRCULARS OF
VARIOUS TYPES."  APP. 14A. 

/3/  THE SYSTEM OPERATED ONLY 55 CARS, APP. 15A, EACH WITH 20
ADVERTISING SPACES.  TR. OF ORAL ARG. 23 - 24. 

/4/  RECEIPTS FROM THE SALE OF ADVERTISING AMOUNTED TO $12,000
ANNUALLY.  TR. OF ORAL ARG. 27.  THESE RECEIPTS SUPPLEMENTED OPERATING
REVENUES GENERATED FROM THE FARES PAID BY THE PASSENGERS WHO USED THE
SYSTEM DAILY. 

/5/  CF. WIRTA V. ALAMEDA-CONTRA COSTA TRANSIT DISTRICT, 68 CAL.2D
51, 434 P.2D 982 (1967); KISSINGER V. NEW YORK CITY TRANSIT AUTHORITY,
274 F.SUPP.  438 (SDNY 1967); HILLSIDE COMMUNITY CHURCH V. CITY OF
TACOMA, 76 WASH.2D 63, 455 P.2D 350 (1969). 

MR. JUSTICE DOUGLAS, CONCURRING IN THE JUDGMENT. 

PETITIONER, A CANDIDATE FOR STATE OFFICE, ATTEMPTED TO PURCHASE
SPACE FOR PAID POLITICAL ADVERTISING ON VEHICLES OF THE SHAKER HEIGHTS
RAPID TRANSIT SYSTEM, A SYSTEM OWNED AND OPERATED BY THE CITY OF SHAKER
HEIGHTS, OHIO.  METROMEDIA, INC., THE EXCLUSIVE ADVERTISING AGENT FOR
THE SYSTEM, REFUSED PETITIONER THE SPACE ON THE BASIS OF A CONTRACT
WITH THE SYSTEM PROHIBITING THE ACCEPTANCE OF POLITICAL
ADVERTISEMENTS.  PETITIONER UNSUCCESSFULLY SOUGHT INJUNCTIVE RELIEF IN
THE STATE COURTS TO RESTRAIN THE CITY AND METROMEDIA FROM REFUSING HIS
ADVERTISING. 

THE PETITIONER CONTENDS THAT, BY SELLING ADVERTISING SPACE, THE CITY
HAS TURNED ITS BUSES INTO FREE SPEECH FORUMS AND THE CITY IS NOW
PROHIBITED BY THE FIRST AMENDMENT, APPLICABLE TO THE STATES THROUGH THE
FOURTEENTH, /1/  FROM REFUSING SPACE FOR POLITICAL ADVERTISEMENTS. 

MY BROTHER BRENNAN WOULD FIND THAT "(A) FORUM FOR COMMUNICATION WAS
VOLUNTARILY ESTABLISHED WHEN THE CITY INSTALLED THE PHYSICAL FACILITIES
FOR THE ADVERTISEMENTS AND, BY CONTRACT WITH METROMEDIA, CREATED THE
NECESSARY ADMINISTRATIVE MACHINERY FOR REGULATING ACCESS TO THAT
FORM."  POST, AT 314.  IF THE STREETCAR OR BUS WERE A FORUM FOR
COMMUNICATION AKIN TO THAT OF STREETS OR PUBLIC PARKS, CONSIDERABLE
PROBLEMS WOULD BE PRESENTED.  "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 . . . BUT IT
MUST NOT, IN THE GUISE OF REGULATION, BE ABRIDGED OR DENIED."  HAGUE V.
CIO, 307 U.W. 496, 515 - 516.  BUT A STREETCAR OR BUS IS PLAINLY NOT A
PARK OR SIDEWALK OR OTHER MEETING PLACE FOR DISCUSSION, ANY MORE THAN
IS A HIGHWAY.  IT IS ONLY A WAY TO GET TO WORK OR BACK HOME.  THE FACT
THAT IT IS OWNED AND OPERATED BY THE CITY DOES NOT WITHOUT MORE MAKE IT
A FORUM.     BUS AND STREETCAR PLACARDS ARE IN THE CATEGORY OF HIGHWAY
BILLBOARDS WHICH HAVE LONG BEEN USED TO DISPLAY AN ARRAY OF COMMERCIAL
AND POLITICAL MESSAGES.  BUT THIS PARTICULAR FORM OF COMMUNICATION HAS
BEEN SIGNIFICANTLY CURTAILED BY STATE REGULATION ADOPTED PURSUANT TO
THE HIGHWAY BEAUTIFICATION ACT OF 1965, 23 U.S.C. 131, WHICH CONDITIONS
CERTAIN FEDERAL HIGHWAY FUNDS UPON STRICT REGULATION OF HIGHWAY
ADVERTISING.  OHIO IS AMONG THE STATES WHICH HAVE SOUGHT TO PROTECT THE
INTERESTS OF THEIR MOTORISTS /2/  BY ENACTING REGULATIONS PURSUANT TO
THE ACT.  OHIO REV. CODE ANN. 5516.01 ET SEQ. (SUPP. 1973).  THE FACT
THAT LAND ON WHICH A BILLBOARD RESTS IS MUNICIPAL LAND DOES NOT CURTAIL
OR ENHANCE SUCH REGULATORY SCHEMES. 

IF A BUS IS A FORUM IT IS MORE AKIN TO A NEWSPAPER THAN TO A PARK. 
YET IF A BUS IS TREATED AS A NEWSPAPER, THEN, AS WE HOLD THIS DATE,
MIAMI HERALD PUBLISHING CO. V. TORNILLO, ANTE, P. 241, THE OWNER CANNOT
BE FORCED TO INCLUDE IN HIS OFFERINGS NEWS OR OTHER ITEMS WHICH
OUTSIDERS MAY DESIRE BUT WHICH THE OWNER ABHORS.  NEWSPAPER CASES ARE
CITED TO SUPPORT PETITIONER'S CLAIM.  THE FIRST AMENDMENT, HOWEVER,
DRAWS NO DISTINCTION BETWEEN PRESS PRIVATELY OWNED, AND PRESS OWNED
OTHERWISE.  AND IF WE ARE TO TURN A BUS OR STREETCAR INTO EITHER A
NEWSPAPER OR A PARK, WE TAKE GREAT LIBERTIES WITH PEOPLE WHO BECAUSE OF
NECESSITY BECOME COMMUTERS AND AT THE SAME TIME CAPTIVE VIEWERS OR
LISTENERS. 

IN ASKING US TO FORCE THE SYSTEM TO ACCEPT HIS MESSAGE AS A
VINDICATION OF HIS CONSTITUTIONAL RIGHTS, THE PETITIONER OVERLOOKS THE
CONSTITUTIONAL RIGHTS OF THE COMMUTERS.  WHILE PETITIONER CLEARLY HAS A
RIGHT TO EXPRESS HIS VIEWS TO THOSE WHO WISH TO LISTEN, HE HAS NO RIGHT
TO FORCE HIS MESSAGE UPON AN AUDIENCE INCAPABLE OF DECLINING TO RECEIVE
IT.  IN MY VIEW THE RIGHT OF THE COMMUTERS TO BE FREE FROM FORCED
INTRUSIONS ON THEIR PRIVACY PRECLUDES THE CITY FROM TRANSFORMING ITS
VEHICLES OF PUBLIC TRANSPORTATION INTO FORUMS FOR THE DISSEMINATION OF
IDEAS UPON THIS CAPTIVE AUDIENCE. 

BUSES ARE NOT RECREATIONAL VEHICLES USED FOR SUNDAY CHAUTAUQUAS AS A
PUBLIC PARK MIGHT BE USED ON HOLIDAYS FOR SUCH A PURPOSE; THEY ARE A
PRACTICAL NECESSITY FOR MILLIONS IN OUR URBAN CENTERS.  I HAVE ALREADY
STATED THIS VIEW IN MY DISSENT IN PUBLIC UTILITIES COMM'N V. POLLAK,
343 U.S. 451, 469, INVOLVING THE CHALLENGE BY SOME PASSENGERS TO THE
PRACTICE OF BROADCASTING RADIO PROGRAMS OVER LOUDSPEAKERS IN BUSES AND
STREETCARS:  "ONE WHO TUNES IN ON AN OFFENSIVE PROGRAM AT HOME CAN TURN
IT OFF OR TUNE IN ANOTHER STATION, AS HE WISHES.  ONE WHO HEARS
DISQUIETING OR UNPLEASANT PROGRAMS IN PUBLIC PLACES, SUCH AS
RESTAURANTS, CAN GET UP AND LEAVE.  BUT THE MAN ON THE STREETCAR HAS NO
CHOICE BUT TO SIT AND LISTEN, OR PERHAPS TO SIT AND TO TRY NOT TO
LISTEN."  THERE IS NO DIFFERENCE WHEN THE MESSAGE IS VISUAL, NOT
AURICULAR.  IN EACH THE VIEWER OR LISTENER IS CAPTIVE. 

I AGREE WITH MR. JUSTICE BRANDEIS WHO, QUOTING FROM A UTAH STATE
COURT DECISION, /3/  SAID THAT THE VISUAL MESSAGE IN STREETCARS IS NO
DIFFERENT FOR "'(ADVERTISEMENTS OF THIS SORT ARE CONSTANTLY BEFORE THE
EYES OF OBSERVERS ON THE STREETS AND IN STREET CARS TO BE SEEN WITHOUT
THE EXERCISE OF CHOICE OR VOLITION ON THEIR PART.  OTHER FORMS OF
ADVERTISING ARE ORDINARILY SEEN AS A MATTER OF CHOICE ON THE PART OF
THE OBSERVER . . . IN THE CASE OF NEWSPAPERS AND MAGAZINES, THERE MUST
BE SOME SEEKING BY THE ONE WHO IS TO SEE AND READ THE ADVERTISEMENT. 
THE RADIO CAN BE TURNED OFF, BUT NOT SO THE BILLBOARD OR STREET CAR
PLACARD.'"  PACKER CORP. V. UTAH, 285 U.S. 105, 110. 

I DO NOT VIEW THE CONTENT OF THE MESSAGE AS RELEVANT EITHER TO
PETITIONER'S RIGHT TO EXPRESS IT OR TO THE COMMUTERS' RIGHT TO BE FREE
FROM IT.  COMMERCIAL ADVERTISEMENTS MAY BE AS OFFENSIVE AND INTRUSIVE
TO CAPTIVE AUDIENCES AS ANY POLITICAL MESSAGE.  BUT THE VALIDITY OF THE
COMMERCIAL ADVERTISING PROGRAM IS NOT BEFORE US SINCE WE ARE NOT FACED
WITH ONE COMPLAINING OF AN INVASION OF PRIVACY THROUGH FORCED EXPOSURE
TO COMMERCIAL ADS.  SINCE I DO NOT BELIEVE THAT PETITIONER HAS ANY
CONSTITUTIONAL RIGHT TO SPREAD HIS MESSAGE BEFORE THIS CAPTIVE
AUDIENCE, I CONCUR IN THE COURT'S JUDGMENT. 

/1/  THE COURT HAS FREQUENTLY RESTED STATE FREE SPEECH AND FREE
PRESS DECISIONS ON THE FOURTEENTH AMENDMENT GENERALLY RATHER THAN ON
THE DUE PROCESS CLAUSE ALONE.  SEE ,E.G., BRIDGES V. CALIFORNIA, 314
U.S. 252, 263 N. 6; SAIA V. NEW YORK, 334 U.S. 558, 560; ELFBRANDT V.
RUSSELL, 384 U.S. 11, 18; MILLS V. ALABANA, 384 U.S. 214, 218. 

/2/  IN A SURVEY OF MOTORISTS IN OHIO, 71% EXPRESSED THE OPINION
THAT BILLBOARDS SHOULD BE BANNED FROM THE INTERSTATE HIGHWAY SYSTEM. 
HEARINGS ON S. 1467 BEFORE THE SUBCOMMITTEE ON ROADS OF THE SENATE
COMMITTEE ON PUBLIC WORKS, 90TH CONG., 1ST SESS., 43 - 44 (1967). 

/3/  77 UTAH 500, 515, 297 P. 1013, 1019 (1931). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART, MR. JUSTICE
MARSHALL, AND MR. JUSTICE POWELL JOIN, DISSENTING. 

THE CITY OF SHAKER HEIGHTS OWNS AND OPERATES THE SHAKER HEIGHTS
RAPID TRANSIT SYSTEM, AN INTERURBAN ELECTRIC RAILROAD LINE CONSISTING
OF APPROXIMATELY 55 TRANSIT CARS WHICH TRANSPORT PASSENGERS BETWEEN
SHAKER HEIGHTS AND CLEVELAND.  EACH OF THE CARS CONTAINS 20 INTERIOR
ADVERTISING SPACES AVAILABLE FOR LEASE THROUGH THE METRO TRANSIT
DIVISION OF METROMEDIA, INC., THE TRANSIT SYSTEM'S EXCLUSIVE
ADVERTISING AGENT.  BY AGREEMENT WITH THE CITY, METROMEDIA ACCEPTS
COMMERCIAL AND PUBLIC SERVICE ADVERTISING, BUT WILL NOT ACCEPT
"POLITICAL ADVERTISING." 

PRIOR TO OHIO'S 1970 GENERAL ELECTION, HARRY J. LEHMAN, A CANDIDATE
FOR THE OFFICE OF STATE REPRESENTATIVE TO THE OHIO GENERAL ASSEMBLY FOR
THE 56TH DISTRICT, ATTEMPTED TO LEASE ADVERTISING SPACE ON THE SHAKER
HEIGHTS RAPID TRANSIT SYSTEM, BECAUSE, AS HE LATER TESTIFIED, "THE VAST
MAJORITY OF ITS SIX TO EIGHT THOUSAND RIDERS EACH DAY ARE RESIDENTS OF
THE DISTRICT . . . ."  (APP. 14A).  ALTHOUGH ADVERTISING SPACE WAS
AVAILABLE AND LEHMAN'S PROPOSED ADVERTISEMENT /1/  MET METROMEDIA'S
COPY STANDARDS, /2/  RENTAL SPACE WAS NEVERTHELESS DENIED LEHMAN ON THE
SOLE GROUND THAT METROMEDIA'S CONTRACT WITH THE CITY FORBIDS ACCEPTANCE
OF "POLITICAL ADVERTISING." 

AFTER AN UNSUCCESSFUL ATTEMPT TO PERSUADE THE CITY TO ALTER ITS BAN
AGAINST POLITICAL ADVERTISEMENTS, LEHMAN COMMENCED THIS ACTION IN THE
COURT OF COMMON PLEAS FOR CUYAHOGA COUNTY, OHIO, SEEKING DECLARATORY
AND INJUNCTIVE RELIEF ON THE GROUND THAT THE CITY'S POLICY OF
PROHIBITING POLITICAL ADVERTISEMENTS INFRINGED HIS FREEDOM OF SPEECH
AND DENIED HIM EQUAL PROTECTION OF THE LAWS.  FINDING NO CONSTITUTIONAL
INFIRMITIES, THE TRIAL COURT DENIED RELIEF AND WAS AFFIRMED BY BOTH THE
CUYAHOGA COUNTY COURT OF APPEALS AND THE SUPREME COURT OF OHIO. 

I WOULD REVERSE.  IN MY VIEW, THE CITY CREATED A FORUM FOR THE
DISSEMINATION OF INFORMATION AND EXPRESSION OF IDEAS WHEN IT ACCEPTED
AND DISPLAYED COMMERCIAL AND PUBLIC SERVICE ADVERTISMENTS ON ITS RAPID
TRANSIT VEHICLES.  HAVING OPENED A FORUM FOR COMMUNIATION, THE CITY IS
BARRED BY THE FIRST AND FOURTEENTH AMENDMENTS FROM DISCRIMINATING AMONG
FORUM USERS SOLELY ON THE BASIS OF MESSAGE CONTENT. 

        I 

THE MESSAGE LEHMAN SOUGHT TO CONVEY CONCERNING HIS CANDIDACY FOR
PUBLIC OFFICE WAS UNQUESTIONABLY PROTECTED BY THE FIRST AMENDMENT. 
THAT CONSITUTIONAL SAFEGUARD WAS FASHIONED TO ENCOURAGE AND NURTURE
"UNINHIBITED, ROBUST, AND WIDE-OPEN"  SELF-EXPRESSION, PARTICULARLY IN
MATTERS OF GOVERNING IMPORTANCE.  NEW YORK TIMES CO. V. SULLIVAN, 376
U.S. 254, 270 (1964).  "FOR SPEECH CONCERNING PUBLIC AFFAIRS IS MORE
THAN SELF-EXPRESSION; IT IS THE ESSENCE OF SELF-GOVERNMENT."  GARRISON
V. LOUISIANA, 379 U.S. 64, 74 - 75 (1964).  "THE MAINTENANCE OF THE
OPPORTUNITY FOR FREE POLITICAL DISCUSSION TO THE END THAT GOVERNMENT
MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND THAT CHANGES MAY BE
OBTAINED BY LAWFUL MEANS, AN OPPORTUNITY ESSENTIAL TO THE SECURITY OF
THE REPUBLIC, IS A FUNDAMENTAL PRINCIPLE OF OUR CONSTITUTIONAL
SYSTEM."  STROMBERG V. CALIFORNIA, 283 U.S. 359, 369 (1931).  THE FACT
THAT THE MESSAGE IS PROPOSED AS A PAID ADVERTISEMENT DOES NOT DIMINISH
THE IMPREGNABLE SHELTER AFFORDED BY THE FIRST AMENDMENT.  SEE NEW YORK
TIMES CO. V. SULLIVAN, SUPRA, AT 271. 

OF COURSE, NOT EVEN THE RIGHT OF POLITICAL SELF-EXPRESSION IS
COMPLETELY UNFETTERED.  AS WE STATED IN COX V. LOUISIANA, 379 U.S. 536,
554 (1965): 

"THE RIGHTS OF FREE SPEECH AND ASSEMBLY, WHILE FUNDAMENTAL IN OUR
DEMOCRATIC SOCIETY, STILL DO NOT MEAN THAT EVERYONE WITH OPINIONS OR
BELIEFS TO EXPRESS MAY ADDRESS A GROUP AT ANY PUBLIC PLACE AND AT ANY
TIME.  THE CONSTITUTIONAL GUARANTEE OF LIBERTY IMPLIES THE EXISTENCE OF
AN ORGANIZED SOCIETY MAINTAINING PUBLIC ORDER, WITHOUT WHICH LIBERTY
ITSELF WOULD BE LOST IN THE EXCESSES OF ANARACHY."  ACCORDINGLY, WE
HAVE REPEATEDLY RECOGNIZED THE CONSTITUTIONALITY OF REASONABLE "TIME,
PLACE AND MANNER" REGULATIONS WHICH ARE APPLIED IN AN EVENHANDED
FASHION.  SEE, E.G., POLICE DEPARTMENT OF CHICAGO V. MOSLEY, 408 U.S.
92, 98 (1972); GRAYNED V. CITY OF ROCKFORD, 408 U.S. 104, 115 (1972);
COX V. LOUISIANA, SUPRA, AT 554 - 555; POULOS V. NEW HAMPSHIRE, 345
U.S. 395, 398 (1953); COX V. NEW HAMPSHIRE, 312 U.S. 569, 575 - 576
(1941); SCHNEIDER V. STATE, 308 U.S. 147, 160 (1939). 

FOCUSING UPON THE PROPRIETY OF REGULATING "PLACE," THE CITY OF
SHAKER HEIGHTS ATTEMPTS TO JUSTIFY ITS BAN AGAINST POLITICAL
ADVERTISING BY ARGUING THAT THE INTERIOR ADVERTISING SPACE OF A TRANSIT
CAR IS AN INAPPROPRIATE FORUM FOR POLITICAL EXPRESSION AND DEBATE. 
BRIEF FOR RESPONDENTS 7.  TO BE SURE, THERE ARE SOME PUBLIC PLACES
WHICH ARE SO CLEARLY COMMITTED TO OTHER PURPOSES THAT THEIR USE AS
PUBLIC FORUMS FOR COMMUNICATION IS ANOMALOUS.  FOR EXAMPLE, "(THERE MAY
BE SOME INSTANCES IN WHICH ASSEMBLIES AND PETITIONS FOR REDRESS OF
GRIEVANCES ARE NOT CONSISTENT WITH OTHER NECESSARY PURPOSES OF PUBLIC
PROPERTY.  A NOISY MEETING MAY BE OUT OF KEEPING WITH THE SERENITY OF
THE STATEHOUSE OR THE QUIET OF THE COURTHOUSE.  NO ONE . . . WOULD
SUGGEST THAT THE SENATE GALLERY IS THE PROPER PLACE FOR A VOCIFEROUS
PROTEST RALLY.  AND IN OTHER CASES IT MAY BE NECESSARY TO ADJUST THE
RIGHT TO PETITION IN THE USES TO WHICH THE PUBLIC PROPERTY IS NORMALLY
PUT."  ADDERLEY V. FLORIDA, 385 U.S. 39, 54 (1966) (DOUGLAS, J.,
DISSENTING).  THE DETERMINATION OF WHETHER A PARTICULAR TYPE OF PUBLIC
PROPERTY OR FACILITY CONSTITUTES A "PUBLIC FORUM" REQUIRES THE COURT TO
STRIKE A BALANCE BETWEEN THE COMPETING INTERESTS OF THE GOVERNMENT, ON
THE ONE HAND, AND THE SPEAKER AND HIS AUDIENCE, ON THE OTHER.  /3/
THUS, THE COURT MUST ASSESS THE IMPORTANCE OF THE PRIMARY USE TO WHICH
THE PUBLIC PROPERTY OR FACILITY IS COMMITTED AND THE EXTENT TO WHICH
THAT USE WILL BE DISRUPTED IF ACCESS FOR FREE EXPRESSION IS PERMITTED. 

APPLYING THESE PRINCIPLES, THE COURT HAS LONG RECOGNIZED THE
PUBLIC'S RIGHT OF ACCESS TO PUBLIC STREETS AND PARKS FOR EXPRESSIVE
ACTIVITY.  AS MR. JUSTICE ROBERTS WROTE IN HAGUE V. CIO, 307 U.S. 496,
515 - 516 (1939): 

"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."  SEE ALSO JAMISON V. TEXAS, 318
U.S. 413 (1943); COX V. LOUISIANA, SUPRA.  MORE RECENTLY, THE COURT HAS
ADDED STATE CAPITOL GROUNDS TO THE LIST OF PUBLIC FORUMS COMPATIBLE
WITH FREE SPEECH, FREE ASSEMBLY, AND THE FREEDOM TO PETITION FOR
REDRESS OF GRIEVANCES, EDWARDS V. SOUTH CAROLINA, 372 U.S. 229 (1963),
BUT DENIED SIMILAR STATUS TO THE CURTILAGE OF A JAILHOUSE, ON THE
GROUND THAT JAILS ARE BUILT FOR SECURITY AND THUS NEED NOT BE OPENED TO
THE GENERAL PUBLIC, ADDERLEY V. FLORIDA, 385 U.S. 39 (1966).  /4/ 

IN THE CIRCUMSTANCES OF THIS CASE, HOWEVER, WE NEED NOT DECIDE
WHETHER PUBLIC TRANSIT CARS MUST BE MADE AVAILABLE AS FORUMS FOR THE
EXERCISE OF FIRST AMENDMENT RIGHTS.  BY ACCEPTING COMMERCIAL AND PUBLIC
SERVICE ADVERTISING, THE CITY EFFECTIVELY WAIVED ANY ARGUMENT THAT
ADVERTISING IN ITS TRANSIT CARS IS INCOMPATIBLE WITH THE RAPID TRANSIT
SYSTEM'S PRIMARY FUNCTION OF PROVIDING TRANSPORTION.  A FORUM FOR
COMMUNICATION WAS VOLUNTARILY ESTABLISHED WHEN THE CITY INSTALLED THE
PHYSICAL FACILITIES FOR THE ADVERTISEMENTS AND, BY CONTRACT WITH
METROMEDIA, CREATED THE NECESSARY ADMINISTRATIVE MACHINERY FOR
REGULATING ACCESS TO THAT FORUM.  /5/ 

THE PLURALITY OPINION, HOWEVER, CONTENDS THAT AS LONG AS THE CITY
LIMITS ITS ADVERTISING SPACE TO "INNOCUOUS AND LESS CONTROVERSIAL
COMMERCIAL AND SERVICE ORIENTED ADVERTISING," NO FIRST AMENDMENT FORUM
IS CREATED.  ANTE, AT 304.  I FIND NO MERIT IN THAT POSITION. 
CERTAINLY, NON-COMMERCIAL PUBLIC SERVICE ADVERTISEMENTS CONVEY MESSAGES
OF PUBLIC CONCERN AND ARE CLEARLY PROTECTED BY THE FIRST AMENDMENT. 
AND WHILE IT IS POSSIBLE THAT COMMERCIAL ADVERTISING MAY BE ACCORDED
LESS FIRST AMENDMENT PROTECTION THAN SPEECH CONCERNING POLITICAL AND
SOCIAL ISSUES OF PUBLIC IMPORTANCE, COMPARE VALENTINE V. CHRESTENSEN,
316 U.S. 52 (1942), WITH SCHNEIDER V. STATE, 308 U.S. 147 (1939), AND
BREARD V. CITY OF ALEXANDRIA, 341 U.S. 622 (1951), WITH MARTIN V. CITY
OF STRUTHERS, 319 U.S. 141 (1943), IT IS "SPEECH" NONETHELESS, OFTEN
COMMUNICATING INFORMATION AND IDEAS FOUND BY MANY PERSONS TO BE
CONTROVERSIAL.  /6/  THERE CAN BE NO QUESTION THAT COMMERCIAL
ADVERTISEMENTS, WHEN SKILLFULLY EMPLOYED, ARE POWERFUL VEHICLES FOR THE
EXALTATION FO COMMERCIAL VALUES.  ONCE SUCH MESSAGES HAVE BEEN ACCEPTED
AND DISPLAYED, THE EXISTENCE OF A FORUM FOR COMMUNICATION CANNOT BE
GAINSAID.  TO HOLD OTHERWISE, AND THUS SANCTION THE CITY'S PREFERENCE
FOR BLAND COMMERCIALISM AND NONCONTROVERSIAL PUBLIC SERVICE MESSAGES
OVER "UNINHIBITED, ROBUST, AND WIDE-OPEN" DEBATE ON PUBLIC ISSUES,
WOULD REVERSE THE TRANDITIONAL PRIORITIES OF THE FIRST AMENDMENT.  /7/

        II 

ONCE A PUBLIC FORUM FOR COMMUNICATION HAS BEEN ESTABLISHED, BOTH
FREE SPEECH AND EQUAL PROTECTION PRINCIPLES PROHIBIT DISCRIMINATION
BASED SOLELY UPON SUBJECT MATTER OR CONTENT.  /8/  SEE, E.G., POLICE
DEPARTMENT OF CHICAGO V. MOSLEY, 408 U.S.,AT 95 - 96; COX V. LOUISIANA,
379 U.S. 559, 581 (1965) (BLACK, J., CONCURRING AND DISSENTING); FOWLER
V. RHODE ISLAND, 345 U.S. 67 (1953); NIEMOTKO V. MARYLAND, 340 U.S.
268, 272 - 273 (1951). 

     "NECESSARILY, THEN, UNDER THE EQUAL PROTECTION CLAUSE, NOT TO

  MENTION THE FIRST AMENDMENT ITSELF, GOVERNMENT MAY NOT GRANT THE

  USE OF A FORUM TO PEOPLE WHOSE VIEWS IT FINDS ACCEPTABLE, BUT

  DENY USE TO THOSE WISHING TO EXPRESS LESS FAVORED OR MORE

  CONTROVERSIAL VIEWS.  AND IT MAY NOT SELECT WHICH ISSUES ARE

  WORTH DISCUSSING OR DEBATING IN PUBLIC FACILITIES.  THERE IS AN

  'EQUALITY OF STATUS IN THE FIELD OF IDEAS,' AND GOVERNMENT MUST

  AFFORD ALL POINTS OF VIEW AN EQUAL OPPORTUNITY TO BE HEARD.  ONCE

  A FORUM IS OPENED UP TO ASSEMBLY OR SPEAKING BY SOME GROUPS,

  GOVERNMENT MAY NOT PROHIBIT OTHERS FROM ASSEMBLING OR SPEAKING ON

  THE BASIS OF WHAT THEY INTEND TO SAY.  SELECTIVE EXCLUSIONS FROM

  A PUBLIC FORUM MAY NOT BE BASED ON CONTENT ALONE, AND MAY NOT BE

  JUSTIFIED BY REFERENCE TO CONTENT ALONE."  POLICE DEPARTMENT OF

  CHICAGO V. MOSLEY, SUPRA, AT 96. 

THAT THE DISCRIMINATION IS AMONG ENTIRE CLASSES OF IDEAS, RATHER THAN
AMONG POINTS OF VIEW WITHIN A PARTICULAR CLASS, DOES NOT RENDER IT ANY
LESS ODIOUS.  SUBJECT MATTER OR CONTENT CENSORSHIP IN ANY FORM IS
FORBIDDEN.  /9/ 

TO INSURE THAT SUBJECT MATTER OR CONTENT IS NOT THE SOLE BASIS FOR
DISCRIMINATION AMONG FORUM USERS, ALL SELECTIVE EXCLUSIONS FROM A
PUBLIC FORUM MUST BE CLOSELY SCRUTINIZED AND COUNTENANCED ONLY IN CASES
WHERE THE GOVERNMENT MAKES A CLEAR SHOWING THAT ITS ACTION WAS TAKEN
PURSUANT TO NEUTRAL "TIME, PLACE AND MANNER"  REGULATIONS, NARROWLY
TAILORED TO PROTECT THE GOVERNMENT'S SUBSTANTIAL INTEREST IN PRESERVING
THE VIABILITY AND UTILITY OF THE FORUM ITSELF.  SEE, E.G., POLICE
DEPARTMENT OF CHICAGO V. MOSLEY, SUPRA, AT 98 - 102; GRAYNED V. CITY OF
ROCKFORD, 408 U.S., AT 115-117; SHUTTLESWORTH V. BIRMINGHAM, 394 U.S.,
147, 152-153 (1969); TINKER V. DES MOINES SCHOOL DISTRICT, 393 U.S.
503, 508, 514 (1969); CF. DUNN V. BLUMSTEIN, 405 U.S. 330, 336 - 337
(1972); WILLIAMS V. RHODES, 393 U.S. 23, 31 (1968).  THE CITY HAS
FAILED TO DISCHARGE THAT HEAVY BURDEN IN THE PRESENT CASE. 

THE COURT'S SPECIAL VIGILANCE IS TRIGGERED IN THIS CASE BECAUSE OF
THE CITY'S UNDISPUTED BAN AGAINST POLITICAL ADVERTISING IN ITS TRANSIT
CARS.  COMMERCIAL AND PUBLIC SERVICE ADVERTISEMENTS ARE ROUTINELY
ACCEPTED FOR DISPLAY, WHILE POLITICAL MESSAGES ARE ABSOLUTELY
PROHIBITED.  FEW EXAMPLES ARE REQUIRED TO ILLUSTRATE THE SCOPE OF THE
CITY'S POLICY AND PRACTICE.  FOR INSTANCE, A COMMERCIAL ADVERTISEMENT
PEDDLING SNOWMOBILES WOULD BE ACCEPTED, WHILE A COUNTER-ADVERTISEMENT
CALLING UPON THE PUBLIC TO SUPPORT LEGISLATION CONTROLLING THE
ENVIRONMENTAL DESTRUCTION AND NOISE POLLUTION CAUSED BY SNOWMOBILES
WOULD BE REJECTED.  ALTERNATIVELY, A PUBLIC SERVICE AD BY THE LEAGUE OF
WOMEN VOTERS WOULD BE PERMITTED, ADVERTISING THE EXISTENCE OF AN
UPCOMING ELECTION AND IMPLORING CITIZENS TO VOTE, BUT A CANDIDATE, SUCH
AS LEHMAN, WOULD BE BARRED FROM INFORMING THE PUBLIC ABOUT HIS
CANDIDACY, QUALIFICATIONS FOR OFFICE, OR POSITION ON PARTICULAR
ISSUES.  THESE, AND OTHER EXAMPLES, /10/  MAKE PERFECTLY CLEAR THAT THE
SELECTIVE EXCLUSION OF POLITICAL ADVERTISING IS NOT THE PRODUCT OF
EVENHANDED APPLICATION OF NEUTRAL "TIME, PLACE, AND
MANNER"REGULATIONS. 

RATHER, THE OPERATIVE--AND CONSTITUTIONALLY IMPERMISSIBLE-
DISTINCTION IS THE MESSAGE ON THE SIGN.  THAT CONCLUSION IS NOT
DISPELLED BY ANY OF THE CITY'S ASSERTED JUSTIFICATIONS FOR SELECTIVELY
EXCLUDING POLITICAL ADVERTISING. 

THE CITY CONTENDS THAT ITS BAN AGAINST POLITICAL ADVERTISING IS
BOTTOMED UPON ITS SOLICITOUS REGARD FOR "CAPTIVE RIDERS" OF THE RAPID
TRANSIT SYSTEM, WHO ARE "FORCED TO ENDURE THE ADVERTISING THRUST UPON
(THEM)."  BRIEF FOR RESPONDENTS 8.  SINCE ITS RAPID TRANSIT SYSTEM IS
PRIMARILY A MODE OF TRANSPORTATION, THE CITY ARGUES THAT IT MAY
PROHIBIT POLITICAL ADVERTISING IN ORDER TO SHIELD ITS TRANSIT
PASSENGERS FROM SOMETIMES CONTROVERSIAL OR UNSETTLING SPEECH.  WHATEVER
MERIT THE CITY'S ARGUMENT MIGHT HAVE IN OTHER CONTEXTS, IT HAS A HOLLOW
RING IN THE PRESENT CASE, WHERE THE CITY HAS VOLUNTARILY OPENED ITS
RAPID TRANSIT SYSTEM AS A FORUM FOR COMMUNICATION.  IN THAT
CIRCUMSTANCE, THE OCCASIONAL APPEARANCE OF PROVOCATIVE SPEECH SHOULD BE
EXPECTED.  INDEED, THE COURT HAS RECOGNIZED THAT "A FUNCTION OF FREE
SPEECH UNDER OUR SYSTEM OF GOVERNMENT IS TO INVITE DISPUTE . . . SPEECH
IS OFTEN PROVOCATIVE AND CHALLENGING.  IT MAY STRIKE AT PREJUDICES AND
PRECONCEPTIONS AND HAVE PROFOUND UNSETTLING EFFECTS AS IT PRESSES FOR
ACCEPTANCE OF AN IDEA."  TERMINIELLO V. CHICAGO, 337 U.S. 1, 4 (1949). 

THE LINE BETWEEN IDEOLOGICAL AND NONIDEOLOGICAL SPEECH IS IMPOSSIBLE
TO DRAW WITH ACCURACY.  BY ACCEPTING COMMERCIAL AND PUBLIC SERVICE
ADVERTISEMENTS, THE CITY OPENED THE DOOR TO "SOMETIMES CONTROVERSIAL OR
UNSETTLING SPEECH"  AND DETERMINED THAT SUCH SPEECH DOES NOT UNDULY
INTERFERE WITH THE RAPID TRANSIT SYSTEM'S PRIMARY PURPOSE OF
TRANSPORTING PASSENGERS.  IN THE EYES OF MANY PASSENGERS, CERTAIN
COMMERCIAL OR PUBLIC SERVICE MESSAGES /11/  ARE AS PROFOUNDLY
DISTURBING AS SOME POLITICAL ADVERTISEMENTS MIGHT BE TO OTHER
PASSENGERS.  THERE IS CERTAINLY NO EVIDENCE IN THE RECORD OF THIS CASE
INDICATING THAT POLITICAL ADVERTISEMENTS, AS A CLASS, ARE SO DISTURBING
WHEN DISPLAYED THAT THEY ARE MORE LIKELY THAN COMMERCIAL OR PUBLIC
SERVICE ADVERTISEMENTS TO IMPAIR THE RAPID TRANSIT SYSTEM'S PRIMARY
FUNCTION OF TRANSPORTATION.  IN THE ABSENCE OF SUCH EVIDENCE, THE
CITY'S SELECTIVE EXCLUSION OF POLITICAL ADVERTISING CONSTITUTES AN
INVIDIOUS DISCRIMINATION ON THE BASIS OF SUBJECT MATTER, IN VIOLATION
OF THE FIRST AND FOURTEENTH AMENDMENTS. 

MOREOVER, EVEN IF IT WERE POSSIBLE TO DRAW A MANAGEABLE LINE BETWEEN
CONTROVERSIAL AND NONCONTROVERSIAL MESSAGES, THE CITY'S PRACTICE OF
CENSORSHIP FOR THE BENEFIT OF "CAPTIVE AUDIENCES" STILL WOULD NOT BE
JUSTIFIED.  /12/  THIS IS NOT A CASE WHERE AN UNWILLING OR UNSUSPECTING
RAPID TRANSIT RIDER IS POWERLESS TO AVOID MESSAGES HE DEEMS
UNSETTLING.  THE ADVERTISEMENTS ACCEPTED BY THE CITY AND METROMEDIA ARE
NOT BROADCAST OVER LOUDSPEAKERS IN THE TRANSIT CARS.  THE PRIVACY OF
THE PASSENGERS IS NOT, THEREFORE, DEPENDENT UPON THEIR ABILITY "TO SIT
AND TO TRY NOT TO LISTEN."  PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S.
451, 469 (1952) (DOUGLAS, J., DISSENTING); CF. KOVACS V. COOPER, 336
U.S. 77 (1949); SAIA V. NEW YORK, 334 U.S. 558, 562 (1948).  RATHER,
ALL ADVERTISEMENTS ACCEPTED FOR DISPLAY ARE IN WRITTEN FORM.  TRANSIT
PASSENGERS ARE NOT FORCED OR COMPELLED TO READ ANY OF THE MESSAGES, NOR
ARE THEY "INCAPABLE OF DECLINING TO RECEIVE (THEM)," ANTE, AT 307
(DOUGLAS, J., CONCURRING).  SHOULD PASSENGERS CHANCE TO GLANCE AT
ADVERTISEMENTS THEY FIND OFFENSIVE, THEY CAN "EFFECTIVELY AVOID FURTHER
BOMBARDMENT OF THEIR SENSIBILITIES SIMPLY BY AVERTING THEIR EYES." 
COHEN V. CALIFORNIA, 403 U.S. 15, 21 (1971).  SURELY THAT MINOR
INCONVENIENCE IS A SMALL PRICE TO PAY FOR THE CONTINUED PRESERVATION OF
SO PRECIOUS A LIBERTY AS FREE SPEECH. 

THE CITY'S REMAINING JUSTIFICATION IS EQUALLY UNPERSUASIVE.  THE
CITY ARGUES THAT ACCEPTANCE OF "POLITICAL ADVERTISEMENTS IN THE CARS OF
THE SHAKER HEIGHTS RAPID TRANSIT, WOULD SUGGEST, ON THE ONE HAND, SOME
POLITICAL FAVORITISM IS BEING GRANTED TO CANDIDATES WHO ADVERTISE, OR,
ON THE OTHER HAND, THAT THE CANDIDATE SO ADVERTISED IS BEING SUPPORTED
OR PROMOTED BY THE GOVERNMENT OF THE CITY."  BRIEF FOR RESPONDENTS 8. 
CLEARLY, SUCH EPHEMERAL CONCERNS DO NOT PROVIDE THE CITY WITH CARTE
BLANCHE AUTHORITY TO EXCLUDE AN ENTIRE CATEGORY OF SPEECH FROM A PUBLIC
FORUM.  "THESE PRAGMATIC HURDLES ARE NO MORE RELEVANT TO A PUBLIC FORUM
WHEN IT IS A MOTOR COACH THAN THEY ARE TO A PUBLIC PARK OR A SCHOOL
AUDITORIUM.  THE ENDORSEMENT OF AN OPINION EXPRESSED IN AN
ADVERTISEMENT ON A MOTOR COACH IS NO MORE ATTRIBUTABLE TO THE TRANSIT
DISTRICT THAN THE VIEW OF A SPEAKER IN A PUBLIC PARK IS TO THE CITY
ADMINISTRATION OR THE TENETS OF AN ORGANIZATION USING SCHOOL PROPERTY
FOR MEETINGS IS TO THE LOCAL SCHOOL BOARD."  WIRTA V. ALAMEDA-CONTRA
COSTA TRANSIT DISTRICT, 68 CAL.2D 51, 61, 434 P.2D 982, 989 (1967). 
THE CITY HAS INTRODUCED NO EVIDENCE DEMONSTRATING THAT ITS RAPID
TRANSIT PASSENGERS WOULD NAIVELY THINK OTHERWISE.  AND THOUGH THERE MAY
BE "LURKING DOUBTS ABOUT FAVORITISM," ANTE, AT 304, THE COURT HAS HELD
THAT "(NO SUCH REMOTE DANGER CAN JUSTIFY THE IMMEDIATE AND CRIPPLING
IMPACT ON THE BASIC CONSTITUTIONAL RIGHTS INVOLVED IN THIS CASE." 
WILLIAMS V. RHODES, 393 U.S., AT 33. 

MOREOVER, NEUTRAL REGULATIONS, WHICH DO NOT DISTINGUISH AMONG
ADVERTISEMENTS ON THE BASIS OF SUBJECT MATTER, CAN BE NARROWLY TAILORED
TO ALLAY THE CITY'S FEARS.  THE IMPRESSION OF CITY ENDORSEMENT CAN BE
DISPELLED BY REQUIRING DISCLAIMERS TO APPEAR PROMINENTLY ON THE FACE OF
EVERY ADVERTISEMENT.  /13/  AND WHILE PROBLEMS OF ACCOMODATING ALL
POTENTIAL ADVERTISERS MAY BE VEXING AT TIMES, THE APPEARANCE OF
FAVORITISM CAN BE AVOIDED BY THE EVENHANDED REGULATION OF TIME, PLACE,
AND MANNER FOR ALL ADVERTISING, IRRESPECTIVE OF SUBJECT MATTER. 

I WOULD, THEREFORE, REVERSE THE JUDGMENT OF THE SUPREME COURT OF
OHIO AND REMAND THIS CASE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

/1/  THE TEXT OF THE PROPOSED ADVERTISEMENT READ AS FOLLOWS:  "HARRY
J. LEHMAN IS OLD FASHIONED./ABOUT HONEST, INTEGRITY AND GOOD
GOVERNMENT/STATE REPRESENTATIVE--DISTRICT 56." 

/2/  THE METRO TRANSIT ADVERTISING COPY POLICY STATES: 

"(1) METRO TRANSIT ADVERTISING WILL NOT DISPLAY ADVERTISING COPY
THAT IS FALSE, MISLEADING, DECEPTIVE AND/OR OFFENSIVE TO THE MORAL
STANDARDS OF THE COMMUNITY, OR CONTRARY TO GOOD TASTE.  COPY WHICH
MIGHT BE CONTRARY TO THE BEST INTERESTS OF THE TRANSIT SYSTEMS, OR
WHICH MIGHT RESULT IN PUBLIC CRITICISM OF THE ADVERTISING INDUSTRY
AND/OR TRANSIT ADVERTISING WILL NOT BE ACCEPTABLE. 

"(2) METRO TRANSIT ADVERTISING WILL NOT ACCEPT ANY POLITICAL COPY
THAT PICTORIALLY, GRAPHICALLY OR OTHERWISE STATES OR SUGGESTS THAT
PROPONENTS OR OPPONENTS OF THE PERSONS OR MEASURES ADVERTISED ARE
VULGAR, GREEDY, IMMORAL, MONOPOLISTIC, ILLEGAL OR UNFAIR. 

"(3) ALL COPY SUBJECT TO APPROVAL.  ROUGH SKETCHES WITH PROPOSED
COPY REQUIRED ON ALL POLITICAL ADVERTISING. 

"(4) METRO TRANSIT ADVERTISING RESERVES THE RIGHT AT ALL TIMES TO
DECLINE BOTH SIDES OF ANY PROPOSITION AND/OR OPPOSING CANDIDATES. 

"(5) POLITICAL ADVERTISING MUST CARRY, VISIBLE WITHIN THE
ADVERTISING AREA OF THE POSTER, THE TAG-LINE: 

"'PAID POLITICAL ADVERTISING SPONSORED BY . . .'  IN LETTERS SIZED
AS FOLLOWS: 

"EXTERIOR:  30" X 144" KING SIZE POSTERS--1" 

     21" X 44" TRAVELING DISPLAYS--1/2" 

     21" X 72" TAILLIGHT SPECTACULAR--1" 

"INTERIOR:  11" X 28"--1/4"  11" X 56"--1/4" 

"(6) CONTRACTS FOR POLITICAL ADVERTISING SPACE MUST BE ACCOMPANIED
BY CHECK FOR ENTIRE AMOUNT OF CONTRACT. 

"(7) POSTERS AND/OR CARDS MUST BE DELIVERED, PREPAID, 10 DAYS PRIOR
TO POSTING DATE. 

"(8) EQUAL OPPORTUNITY TO PURCHASE SPACE WILL BE OFFERED AND
ALLOTTED FOR EACH OPPOSING CANDIDATE, BOND ISSUE OR REFERENDUM.  IF
NECESSARY, CONTRACTS FOR POLITICAL ADVERTISING WILL BE HELD UNTIL 30
DAYS PRIOR TO THE CONTRACT POSTING DATE, AT WHICH TIME METRO TRANSIT
ADVERTISING WILL ALLOCATE THE ADVERTISING SPACE TO EACH CANDIDATE,
ISSUE OR REFERENDUM. 

"(9) MINIMUM ORDER ACCEPTABLE FOR EITHER CARDS OR POSTERS IS AT THE
ONE-(MONTH) RATE). 

"(10) POLITICAL ADVERTISING WILL NOT BE ACCEPTED ON FOLLOWING
SYSTEMS:  SHAKER RAPID--MAPLE HEIGHTS--NORTH OLMSTED--EUCLID, OHIO." 
(EMPHASIS ADDED.) 

/3/  SEE GENERALLY KALVEN, THE CONCEPT OF THE PUBLIC FORUM:  COX V.
LOUISIANA, 1965 SUP.CT.REV.  1; GORLICK, RIGHT TO A FORUM, 71
DICK.L.REV.  273 (1967); HORNING, THE FIRST AMENDMENT RIGHT TO A PUBLIC
FORUM, 1969 DUKE L.J. 931. 

/4/  PUBLIC-FORUM STATUS HAS ALSO BEEN EXTENDED TO MUNICIPAL BUS
TERMINALS, SEE WOLIN V. PORT OF NEW YORK AUTHORITY, 392 F.2D 83 (CA2
1968), AND RAILROAD STATIONS, SEE IN RE HOFFMAN, 67 CAL.2D 845, 434
P.2D 353 (1967). 

/5/  MY BROTHER DOUGLAS' ANALOGY TO BILLBOARD AND NEWSPAPER
ADVERTISING, ANTE, AT 306 - 307, IS NOT APROPOS IN THE CIRCUMSTANCES OF
THIS CASE WHERE THE ADVERTISING DISPLAY SPACE IS CITY OWNED AND
OPERATED.     /6/  THERE IS SOME DOUBT CONCERNING WHETHER THE
"COMMERCIAL SPEECH"  DISTINCTION ANNOUNCED IN VALENTINE V. CHRESTENSEN,
316 U.S. 52 (1942), RETAINS CONTINUING VALIDITY.  MR. JUSTICE DOUGLAS
HAS REMARKED, "THE RULING AS CASUAL, ALMOST OFFHAND.  AND IT HAS NOT
SURVIVED REFLECTION."  CAMMARANO V. UNITED STATES, 358 U.S. 498, 514
(1959) (CONCURRING OPINION).  SEE ALSO PITTSBURGH PRESS CO. V.
PITTSBURGH COMM'N ON HUMAN RELATIONS, 413 U.S. 376, 393 (1973) (BURGER,
C. J., DISSENTING); ID., AT 398 (DOUGLAS, J., DISSENTING); ID., AT 401
(STEWART, J., DISSENTING).  THAT QUESTION, HOWEVER, NEED NOT BE DECIDED
IN THIS CASE.  IT IS SUFFICIENT FOR THE PURPOSE OF PUBLIC FORUM
ANALYSIS MERELY TO RECOGNIZE THAT COMMERCIAL SPEECH ENJOYS AT LEAST
SOME DEGREE OF PROTECTION UNDER THE FIRST AMENDMENT, WITHOUT REACHING
THE MORE DIFFICULT QUESTION CONCERNING THE AMOUNT OF PROPTECTION
AFFORDED. 

/7/  OTHER COURTS HAVE REACHED THE SAME CONCLUSION ON NEARLY
IDENTICAL FACTS.  SEE KISSINGER V. NEW YORK CITY TRANSIT AUTHORITY, 274
F.SUPP.  438 (SDNY 1967); HILLSIDE COMMUNITY CHURCH V. CITY OF TACOMA,
76 WASH.2D 63, 455 P.2D 350 (1969); WIRTA V. ALAMEDA-CONTRA COSTA
TRANSIT DISTRICT, 68 CAL.2D 51, 434 P.2D 982 (1967). 

/8/  THE PLURALITY OPINION'S RELIANCE UPON PACKER CORP. V. UTAH, 285
U.S. 105 (1932), IS MISPLACED.  AS MR. JUSTICE DOUGLAS NOTED IN
CAMMARANO V. UNITED STATES, SUPRA, AT 513 N. (CONCURRING OPINION):  "IN
PACKER CORP. V. UTAH, 285 U.S. 105, THE FIRST AMENDMENT PROBLEM WAS NOT
RAISED.  THE EXTENT TO WHICH SUCH ADVERTISING COULD BE REGULATED
CONSISTENTLY WITH THE FIRST AMENDMENT (CF. CANTWELL V. CONNECTICUT, 310
U.S. 296; MARTIN V. STRUTHERS, 319 U.S. 141; BREARD V. ALEXANDRIA, 341
U.S. 622; ROTH V. UNITED STATES, 354 U.S. 476) HAS THEREFORE NEVER BEEN
AUTHORITATIVELY DETERMINED."  SEE ALSO N. 6, SUPRA. 

/9/  THE EXISTENCE OF OTHER PUBLIC FORUMS FOR THE DISSEMINATION OF
POLITICAL MESSAGES IS, OF COURSE, IRRELEVANT.  AS THE COURT SAID IN
SCHNEIDER V. STATE, 308 U.S. 147, 163 (1939), "ONE IS NOT TO HAVE THE
EXERCISE OF HIS LIBERTY OF EXPRESSION IN APPROPRIATE PLACES ABRIDGED ON
THE PLEA THAT IT MAY BE EXERCISED IN SOME OTHER PLACE." 

/10/  IN DECLARING UNCONSTITUTIONAL AN ADVERTISING POLICY REMARKABLY
SIMILAR TO THE CITY'S POLICY IN THE PRESENT CASE, THE CALIFORNIA
SUPREME COURT DETAILED "THE PARADOXICAL SCOPE OF THE (TRANSIT)
DISTRICT'S POLICY (BANNING POLITICAL ADVERTISING)" IN THE FOLLOWING
MANNER: 

"A CIGARETTE COMPANY IS PERMITTED TO ADVERTISE THE DESIRABILITY OF
SMOKING ITS BRAND, BUT A CANCER SOCIETY IS NOT ENTITLED TO CAUTION BY
ADVERTISEMENT THAT CIGARETTE SMOKING IS INJURIOUS TO HEALTH.  A THEATER
MAY ADVERTISE A MOTION PICTURE THAT PORTRAYS SEX AND VIOLENCE, BUT THE
LEGION FOR DECENCY HAS NO RIGHT TO POST A MESSAGE CALLING FOR CLEAN
FILMS.  A LUMBER COMPANY MAY ADVERTISE ITS WOOD PRODUCTS, BUT A
CONSERVATION GROUP CANNOT IMPLORE CITIZENS TO WRITE TO THE PRESIDENT OR
GOVERNOR ABOUT PROTECTING OUR NATURAL RESOURCES.  AN OIL REFINERY MAY
ADVERTISE ITS PRODUCTS, BUT A CITIZENS' ORGANIZATION CANNOT DEMAND
ENFORCEMENT OF EXISTING AIR POLLUTION STATUTES.  AN INSURANCE COMPANY
MAY ANNOUNCE ITS AVAILABLE POLICIES, BUT A SENIOR CITIZENS' CLUB CANNOT
PLEAD FOR LEGISLATION TO IMPROVE OUR SOCIAL SECURITY PROGRAM.  THE
DISTRICT WOULD ACCEPT AN ADVERTISEMENT FROM A TELEVISION STATION THAT
IS COMMERCIALLY INSPIRED, BUT WOULD REFUSE A PAID NONSOLICITATION
MESSAGE FROM A STRICTLY EDUCATIONAL TELEVISION STATION.  ADVERTISEMENTS
FOR TRAVEL, FOODS, CLOTHING, TOILETRIES, AUTOMOBILES, LEGAL DRUGS--ALL
THESE ARE ACCEPTABLE, BUT THE AMERICAN LEGION WOULD NOT HAVE THE RIGHT
TO PLACE A PAID ADVERTISEMENT READING, 'SUPPORT OUR BOYS IN VIET NAM. 
SEND HOLIDAY PACKAGES.'"  WIRTA V. ALAMEDA-CONTRA COSTA TRANSIT
DISTRICT, 68 CAL.2D 51, 57 - 58, 434 P.2D 982, 986 - 987 (1967). 

/11/  FOR EXAMPLE, THE RECORD INDICATES THAT CHURCH ADVERTISING WAS
ACCEPTED FOR DISPLAY ON THE SHAKER HEIGHTS RAPID TRANSIT SYSTEM.  SEE
APP. 26A. 

/12/  MY BROTHER DOUGLAS' CONTRARY VIEW, THAT "THE RIGHT OF THE
COMMUTERS TO BE FREE FROM FORCED INTRUSIONS ON THEIR PRIVACY PRECLUDES
THE CITY FROM TRANSFORMING ITS VEHICLES OF PUBLIC TRANSPORTATION INTO
FORUMS FOR THE DISSEMINATION OF IDEAS UPON THIS CAPTIVE AUDIENCE,"
IRRESPECTIVE OF WHETHER THE SPEECH IN QUESTION IS COMMERCIAL OR NON
COMMERCIAL, ANTE, AT 307, DOES NOT DISPOSE OF THE FIRST AND FOURTEENTH
AMENDMENT ISSUES IN THIS CASE.  THE RECORD REVEALS THAT THE SHAKER
HEIGHTS RAPID TRANSIT SYSTEM PROVIDES ADVERTISING SPACE ON THE OUTSIDE
AS WELL AS THE INSIDE OF ITS CARS.  SEE APP. 24A.  LEHMAN WAS DENIED
ACCESS TO BOTH.  WHATEVER APPLICABILITY A "CAPTIVE AUDIENCE" THEORY MAY
HAVE TO INTERIOR ADVERTISING, IT SIMPLY CANNOT JUSTIFY THE CITY'S
REFUSAL TO RENT LEHMAN EXTERIOR ADVERTISING SPACE. 

/13/  METRO'S CURRENT COPY POLICY PROVIDES FOR SUCH DISCLAIMERS IN
THOSE CITY TRANSIT SYSTEMS THAT ACCEPT POLITICAL ADVERTISEMENTS.  SEE
N. 2, SUPRA, AT PARA. (5). 

LEONARD J. SCHWARTZ ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WERE STANLEY K. LAUGHLIN, JR., HARRY J. LEHMAN, MELVIN L.
WULF, AND JOEL M. GORA. 

PAUL R. DONALDSON ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE LOUIS H. ORKIN AND H. STEPHEN MADSEN. 
..END :











GERTZ V. WELCH, 418 U.S. 323 


       GERTZ V. ROBERT WELCH, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

        NO. 72 - 617.  ARGUED NOVEMBER 14, 1973--DECIDED JUNE 25,

           1974; 471 F.2D 801, REVERSED AND REMANDED. 


    A CHICAGO POLICEMAN NAMED NUCCIO WAS CONVICTED OF MURDER.  THE

  VICTIM'S FAMILY RETAINED PETITIONER, A REPUTABLE ATTORNEY, TO

  REPRESENT THEM IN CIVIL LITIGATION AGAINST NUCCIO.  AN ARTICLE

  APPEARING IN RESPONDENT'S MAGAZINE ALLEGED THAT NUCCIO'S MURDER

  TRIAL WAS PART OF A COMMUNIST CONSPIRACY TO DISCREDIT THE LOCAL

  POLICE, AND IT FALSELY STATED THAT PETITIONER HAD ARRANGED

  NUCCIO'S "FRAME-UP," IMPLIED THAT PETITIONER HAD A CRIMINAL

  RECORD, AND LABELED HIM A "COMMUNIST-FRONTER."  PETITIONER

  BROUGHT THIS DIVERSITY LIBEL ACTION AGAINST RESPONDENT.  AFTER

  THE JURY RETURNED A VERDICT FOR PETITIONER, THE DISTRICT COURT

  DECIDED THAT THE STANDARD ENUNCIATED IN NEW YORK TIMES CO. V.

  SULLIVAN, 376 U.S. 254, WHICH BARS MEDIA LIABILITY FOR DEFAMATION

  OF A PUBLIC OFFICIAL ABSENT PROOF THAT THE DEFAMATORY STATEMENTS

  WERE PUBLISHED WITH KNOWLEDGE OF THEIR FALSITY OR IN RECKLESS

  DISREGARD OF THE TRUTH, SHOULD APPLY TO THIS SUIT.  THE COURT

  CONCLUDED THAT THAT STANDARD PROTECTS MEDIA DISCUSSION OF A

  PUBLIC ISSUE WITHOUT REGARD TO WHETHER THE PERSON DEFAMED IS A

  PUBLIC OFFICIAL AS IN NEW YORK TIMES CO. V. SULLIVAN, SUPRA, OR A

PUBLIC FIGURE, AS IN CURTIS PUBLISHING CO. V. BUTTS, 388 U.S.

  130.  THE COURT FOUND THAT PETITIONER HAD FAILED TO PROVE

  KNOWLEDGE OF FALSITY OR RECKLESS DISREGARD FOR THE TRUTH AND

  THEREFORE ENTERED JUDGMENT N. O. V. FOR RESPONDENT.  THE COURT OF

  APPEALS AFFIRMED.  HELD: 

     1.  A PUBLISHER OR BROADCASTER OF DEFAMATORY FALSEHOODS ABOUT

AN INDIVIDUAL WHO IS NEITHER A PUBLIC OFFICIAL NOR A PUBLIC

  FIGURE MAY NOT CLAIM THE NEW YORK TIMES PROTECTION AGAINST

  LIABILITY FOR DEFAMATION ON THE GROUND THAT THE DEFAMATORY

  STATEMENTS CONCERN AN ISSUE OF PUBLIC OR GENERAL INTEREST.  PP.

  339 - 348. 

     (A) BECAUSE PRIVATE INDIVIDUALS CHARACTERISTICALLY HAVE LESS

  EFFECTIVE OPPORTUNITIES FOR REBUTTAL THAN DO PUBLIC OFFICIALS AND

  PUBLIC FIGURES, THEY ARE MORE VULNERABLE TO INJURY FROM

  DEFAMATION.  BECAUSE THEY HAVE NOT VOLUNTARILY EXPOSED THEMSELVES

  TO INCREASED RISK OF INJURY FROM DEFAMATORY FALSEHOODS, THEY ARE

  ALSO MORE DESERVING OF RECOVERY.  THE STATE INTEREST IN

  COMPENSATING INJURY TO THE REPUTATION OF PRIVATE INDIVIDUALS IS

  THEREFORE GREATER THAN FOR PUBLIC OFFICIALS AND PUBLIC FIGURES. 

  PP. 343 - 345. 

     (B) TO EXTEND THE NEW YORK TIMES STANDARD TO MEDIA DEFAMATION

OF PRIVATE PERSONS WHENEVER AN ISSUE OF GENERAL OR PUBLIC

INTEREST IS INVOLVED WOULD ABRIDGE TO AN UNACCEPTABLE DEGREE THE

  LEGITIMATE STATE INTEREST IN COMPENSATING PRIVATE INDIVIDUALS FOR

  INJURY TO REPUTATION AND WOULD OCCASION THE ADDITIONAL DIFFICULTY

  OF FORCING COURTS TO DECIDE ON AN AD HOC BASIS WHICH PUBLICATIONS

  AND BROADCASTS ADDRESS ISSUES OF GENERAL OR PUBLIC INTEREST AND

  WHICH DO NOT.  PP. 345 - 346. 

     (C) SO LONG AS THEY DO NOT IMPOSE LIABILITY WITHOUT FAULT, THE

  STATES MAY DEFINE FOR THEMSELVES THE APPROPRIATE STANDARD OF

  LIABILITY FOR A PUBLISHER OR BROADCASTER OF DEFAMATORY FALSEHOOD

  WHICH INJURES A PRIVATE INDIVIDUAL AND WHOSE SUBSTANCE MAKES

  SUBSTANTIAL DANGER TO REPUTATION APPARENT.  PP. 347 - 348. 

     2.  THE STATES, HOWEVER, MAY NOT PERMIT RECOVERY OF PRESUMED
OR

  PUNITIVE DAMAGES WHEN LIABILITY IS NOT BASED ON KNOWLEDGE OF

  FALSITY OR RECKLESS DISREGARD FOR THE TRUTH, AND THE PRIVATE

  DEFAMATION PLAINTIFF WHO ESTABLISHES LIABILITY UNDER A LESS

  DEMANDING STANDARD THAN THE NEW YORK TIMES TEST MAY RECOVER

  COMPENSATION ONLY FOR ACTUAL INJURY.  PP. 348 - 350. 

     3.  PETITIONER WAS NEITHER A PUBLIC OFFICIAL NOR A PUBLIC
FIGURE.  PP. 351 - 352. 

     (A) NEITHER PETITIONER'S PAST SERVICE ON CERTAIN CITY

  COMMITTEES NOR HIS APPEARANCE AS AN ATTORNEY AT THE CORONER'S

  INQUEST INTO THE DEATH OF THE MURDER VICTIM MADE HIM A PUBLIC

OFFICIAL.  P. 351. 

     (B) PETITIONER WAS ALSO NOT A PUBLIC FIGURE.  ABSENT CLEAR

  EVIDENCE OF GENERAL FAME OR NOTORIETY IN THE COMMUNITY AND

  PERVASIVE INVOLVEMENT IN ORDERING THE AFFAIRS OF SOCIETY, AN

  INDIVIDUAL SHOULD NOT BE DEEMED A PUBLIC FIGURE FOR ALL ASPECTS

  OF HIS LIFE.  RATHER, THE PUBLIC-FIGURE QUESTION SHOULD BE

  DETERMINED BY REFERENCE TO THE INDIVIDUAL'S PARTICIPATION IN THE

  PARTICULAR CONTROVERSY GIVING RISE TO THE DEFAMATION. 

  PETITIONER'S ROLE IN THE NUCCIO 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  STEWART, MARSHALL, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

  BLACKMUN, J., FILED A CONCURRING OPINION, POST, P. 353.  BURGER,

  C.J., POST, P. 354, DOUGLAS, J., POST, P. 355, BRENNAN, J., POST,

P. 361, AND WHITE, J., POST, P. 369, FILED DISSENTING OPINIONS. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS COURT HAS STRUGGLED FOR NEARLY A DECADE TO DEFINE THE PROPER
ACCOMMODATION BETWEEN THE LAW OF DEFAMATION AND THE FREEDOMS OF SPEECH
AND PRESS PROTECTED BY THE FIRST AMENDMENT.  WITH THIS DECISION WE
RETURN TO THAT EFFORT.  WE GRANTED CERTIORARI TO RECONSIDER THE EXTENT
OF A PUBLISHER'S CONSTITUTIONAL PRIVILEGE AGAINST LIABILITY FOR
DEFAMATION OF A PRIVATE CITIZEN.  410 U.S. 925 (1973). 

        I 

IN 1968 A CHICAGO POLICEMAN NAMED NUCCIO SHOT AND KILLED A YOUTH
NAMED NELSON.  THE STATE AUTHORITIES PROSECUTED NUCCIO FOR THE HOMICIDE
AND ULTIMATELY OBTAINED A CONVICTION FOR MURDER IN THE SECOND DEGREE. 
THE NELSON FAMILY RETAINED PETITIONER ELMER GERTZ, A REPUTABLE
ATTORNEY, TO REPRESENT THEM IN CIVIL LITIGATION AGAINST NUCCIO. 

RESPONDENT PUBLISHES AMERICAN OPINION, A MONTHLY OUTLET FOR THE
VIEWS OF THE JOHN BIRCH SOCIETY.  EARLY IN THE 1960'S THE MAGAZINE
BEGAN TO WARN OF A NATIONWIDE CONSPIRACY TO DISCREDIT LOCAL LAW
ENFORCEMENT AGENCIES AND CREATE IN THEIR STEAD A NATIONAL POLICE FORCE
CAPABLE OF SUPPORTING A COMMUNIST DICTATORSHIP.  AS PART OF THE
CONTINUING EFFORT TO ALERT THE PUBLIC TO THIS ASSUMED DANGER, THE
MANAGING EDITOR OF AMERICAN OPINION COMMISSIONED AN ARTICLE ON THE
MURDER TRIAL OF OFFICER NUCCIO.  FOR THIS PURPOSE HE ENGAGED A REGULAR
CONTRIBUTOR TO THE MAGAZINE.  IN MARCH 1969 RESPONDENT PUBLISHED THE
RESULTING ARTICLE UNDER THE TITLE "FRAME-UP:  RICHARD NUCCIO AND THE
WAR ON POLICE."  THE ARTICLE PURPORTS TO DEMONSTRATE THAT THE TESTIMONY
AGAINST NUCCIO AT HIS CRIMINAL TRIAL WAS FALSE AND THAT HIS PROSECUTION
WAS PART OF THE COMMUNIST CAMPAIGN AGAINST THE POLICE. 

IN HIS CAPACITY AS COUNSEL FOR THE NELSON FAMILY IN THE CIVIL
LITIGATION, PETITIONER ATTENDED THE CORONER'S INQUEST INTO THE BOY'S
DEATH AND INITIATED ACTIONS FOR DAMAGES, BUT HE NEITHER DISCUSSED
OFFICER NUCCIO WITH THE PRESS NOR PLAYED ANY PART IN THE CRIMINAL
PROCEEDING.  NOTWITHSTANDING PETITIONER'S REMOTE CONNECTION WITH THE
PROSECUTION OF NUCCIO, RESPONDENT'S MAGAZINE PORTRAYED HIM AS AN
ARCHITECT OF THE "FRAME-UP."  ACCORDING TO THE ARTICLE, THE POLICE FILE
ON PETITIONER TOOK "A BIG, IRISH COP TO LIFT."  THE ARTICLE STATED THAT
PETITIONER HAD BEEN AN OFFICIAL OF THE "MARXIST LEAGUE FOR INDUSTRIAL
DEMOCRACY, ORIGINALLY KNOWN AS THE INTERCOLLEGIATE SOCIALIST SOCIETY,
WHICH HAS ADVOCATED THE VIOLENT SEIZURE OF OUR GOVERNMENT."  IT LABELED
GERTZ A "LENINIST"  AND A "COMMUNIST-FRONTER."  IT ALSO STATED THAT
GERTZ HAD BEEN AN OFFICER OF THE NATIONAL LAWYERS GUILD, DESCRIBED AS A
COMMUNIST ORGANIZATION THAT "PROBABLY DID MORE THAN ANY OTHER OUTFIT TO
PLAN THE COMMUNIST ATTACK ON THE CHICAGO POLICE DURING THE 1968
DEMOCRATIC CONVENTION." 

THESE STATEMENTS CONTAINED SERIOUS INACCURACIES.  THE IMPLICATION
THAT PETITIONER HAD A CRIMINAL RECORD WAS FALSE.  PETITIONER HAD BEEN A
MEMBER AND OFFICER OF THE NATIONAL LAWYERS GUILD SOME 15 YEARS EARLIER,
BUT THERE WAS NO EVIDENCE THAT HE OR THAT ORGANIZATION HAD TAKEN ANY
PART IN PLANNING THE 1968 DEMONSTRATIONS IN CHICAGO.  THERE WAS ALSO NO
BASIS FOR THE CHARGE THAT PETITIONER WAS A "LENINIST" OR A "COMMUNIST
FRONTER."  AND HE HAD NEVER BEEN A MEMBER OF THE "MARXIST LEAGUE FOR
INDUSTRIAL DEMOCRACY" OR THE "INTERCOLLEGIATE SOCIALIST SOCIETY." 

THE MANAGING EDITOR OF AMERICAN OPINION MADE NO EFFORT TO VERIFY OR
SUBSTANTIATE THE CHARGES AGAINST PETITIONER.  INSTEAD, HE APPENDED AN
EDITORIAL INTRODUCTION STATING THAT THE AUTHOR HAD "CONDUCTED EXTENSIVE
RESEARCH INTO THE RICHARD NUCCIO CASE."  AND HE INCLUDED IN THE ARTICLE
A PHOTOGRAPH OF PETITIONER AND WROTE THE CAPTION THAT APPEARED UNDER
IT:  "ELMER GERTZ OF RED GUILD HARRASSES NUCCIO."  RESPONDENT PLACED
THE ISSUE OF AMERICAN OPINION CONTAINING THE ARTICLE ON SALE AT
NEWSSTANDS THROUGHOUT THE COUNTRY AND DISTRIBUTED REPRINTS OF THE
ARTICLE ON THE STREETS OF CHICAGO. 

PETITIONER FILED A DIVERSITY ACTION FOR LIBEL IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS.  HE CLAIMED THAT
THE FALSEHOODS PUBLISHED BY RESPONDENT INJURED HIS REPUTATION AS A
LAWYER AND A CITIZEN.  BEFORE FILING AN ANSWER, RESPONDENT MOVED TO
DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF
COULD BE GRANTED, APPARENTLY ON THE GROUND THAT PETITIONER FAILED TO
ALLEGE SPECIAL DAMAGES.  BUT THE COURT RULED THAT STATEMENTS CONTAINED
IN THE ARTICLE CONSTITUTED LIBEL PER SE UNDER ILLINOIS LAW AND THAT
CONSEQUENTLY PETITIONER NEED NOT PLEAD SPECIAL DAMAGES.  306 F.SUPP. 
310 (1969). 

AFTER ANSWERING THE COMPLAINT, RESPONDENT FILED A PRETRIAL MOTION
FOR SUMMARY JUDGMENT, CLAIMING A CONSTITUTIONAL PRIVILEGE AGAINST
LIABILITY FOR DEFAMATION.  /1/  IT ASSERTED THAT PETITIONER WAS A
PUBLIC OFFICIAL OR A PUBLIC FIGURE AND THAT THE ARTICLE CONCERNED AN
ISSUE OF PUBLIC INTEREST AND CONCERN.  FOR THESE REASONS, RESPONDENT
ARGUED, IT WAS ENTITLED TO INVOKE THE PRIVILEGE ENUNCIATED IN NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964).  UNDER THIS RULE RESPONDENT
WOULD ESCAPE LIABILITY UNLESS PETITIONER COULD PROVE PUBLICATION OF
DEFAMATORY FALSEHOOD "WITH 'ACTUAL MALICE'--THAT IS, WITH KNOWLEDGE
THAT IT WAS FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR
NOT."  ID., AT 280.  RESPONDENT CLAIMED THAT PETITIONER COULD NOT MAKE
SUCH A SHOWING AND SUBMITTED A SUPPORTING AFFIDAVIT BY THE MAGAZINE'S
MANAGING EDITOR.  THE EDITOR DENIED ANY KNOWLEDGE OF THE FALSITY OF THE
STATEMENTS CONCERNING PETITIONER AND STATED THAT HE HAD RELIED ON THE
AUTHOR'S REPUTATION AND ON HIS PRIOR EXPERIENCE WITH THE ACCURACY AND
AUTHENTICITY OF THE AUTHOR'S CONTRIBUTIONS TO AMERICAN OPINION. 

THE DISTRICT COURT DENIED RESPONDENT'S MOTION FOR SUMMARY JUDGEMENT
IN A MEMORANDUM OPINION OF SEPTEMBER 16, 1970.  THE COURT DID NOT
DISPUTE RESPONDENT'S CLAIM TO THE PROTECTION OF THE NEW YORK TIMES
STANDARD.  RATHER, IT CONCLUDED THAT PETITIONER MIGHT OVERCOME THE
CONSTITUTIONAL PRIVILEGE BY MAKING A FACTUAL SHOWING SUFFICIENT TO
PROVE PUBLICATION OF DEFAMATORY FALSEHOOD IN RECKLESS DISREGARD OF THE
TRUTH.  DURING THE COURSE OF THE TRIAL, HOWEVER, IT BECAME CLEAR THAT
THE TRIAL COURT HAD NOT ACCEPTED ALL OF RESPONDENT'S ASSERTED GROUNDS
FOR APPLYING THE NEW YORK TIMES RULE TO THIS CASE.  IT THOUGHT THAT
RESPONDENT'S CLAIM TO THE PROTECTION OF THE CONSTITUTIONAL PRIVILEGE
DEPENDED ON THE CONTENTION THAT PETITIONER WAS EITHER A PUBLIC OFFICIAL
UNDER THE NEW YORK TIMES DECISION OR A PUBLIC FIGURE UNDER CURTIS
PUBLISHING CO. V. BUTTS, 388 U.S. 130 (1967), APPARENTLY DISCOUNTING
THE ARGUMENT THAT A PRIVILEGE WOULD ARISE FROM THE PRESENCE OF A PUBLIC
ISSUE.  AFTER ALL THE EVIDENCE HAD BEEN PRESENTED BUT BEFORE SUBMISSION
OF THE CASE TO THE JURY, THE COURT RULED IN EFFECT THAT PETITIONER WAS
NEITHER A PUBLIC OFFICIAL NOR A PUBLIC FIGURE.  IT ADDED THAT, IF HE
WERE, THE RESULTING APPLICATION OF THE NEW YORK TIMES STANDARD WOULD
REQUIRE A DIRECTED VERDICT FOR RESPONDENT.  BECAUSE SOME STATEMENTS IN
THE ARTICLE CONSTITUTED LIBEL PER SE UNDER ILLINOIS LAW, THE COURT
SUBMITTED THE CASE TO THE JURY UNDER INSTRUCTIONS THAT WITHDREW FROM
ITS CONSIDERATION ALL ISSUES SAVE THE MEASURE OF DAMAGES.  THE JURY
AWARDED $50,000 TO PETITIONER. 

FOLLOWING THE JURY VERDICT ON FURTHER REFLECTION, THE DISTRICT COURT
CONCLUDED THAT THE NEW YORK TIMES STANDARD SHOULD GOVERN THIS CASE EVEN
THOUGH PETITIONER WAS NOT A PUBLIC OFFICIAL OR PUBLIC FIGURE.  IT
ACCEPTED RESPONDENT'S CONTENTION THAT THAT PRIVILEGE PROTECTED
DISCUSSION OF ANY PUBLIC ISSUE WITHOUT REGARD TO THE STATUS OF A PERSON
DEFAMED THEREIN.  ACCORDINGLY, THE COURT ENTERED JUDGMENT FOR
RESPONDENT NOTWITHSTANDING THE JURY'S VERDICT.  /2/  THIS CONCLUSION
ANTICIPATED THE REASONING OF A PLURALITY OF THIS COURT IN ROSENBLOOM V.
METROMEDIA, INC., 403 U.S. 29 (1971). 

PETITIONER APPEALED TO CONTEST THE APPLICABILITY OF THE NEW YORK
TIMES STANDARD TO THIS CASE.  ALTHOUGH THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT DOUBTED THE CORRECTNESS OF THE DISTRICT COURT'S
DETERMINATION THAT PETITIONER WAS NOT A PUBLIC FIGURE, IT DID NOT
OVERTURN THAT FINDING.  /3/  IT AGREED WITH THE DISTRICT COURT THAT
RESPONDENT COULD ASSERT THE CONSTITUTIONAL PRIVILEGE BECAUSE THE
ARTICLE CONCERNED A MATTER OF PUBLIC INTEREST, CITING THIS COURT'S
INTERVENING DECISION IN ROSENBLOOM V. METROMEDIA, INC., SUPRA.  THE
COURT OF APPEALS READ ROSENBLOOM TO REQUIRE APPLICATION OF THE NEW YORK
TIMES STANDARD TO ANY PUBLICATION OR BROADCAST ABOUT AN ISSUE OF
SIGNIFICANT PUBLIC INTEREST, WITHOUT REGARD TO THE POSITION, FAME, OR
ANONYMITY OF THE PERSON DEFAMED, AND IT CONCLUDED THAT RESPONDENT'S
STATEMENTS CONCERNED SUCH AN ISSUE.  /4/  AFTER REVIEWING THE RECORD,
THE COURT OF APPEALS ENDORSED THE DISTRICT COURT'S CONCLUSION THAT
PETITIONER HAD FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT
RESPONDENT HAD ACTED WITH "ACTUAL MALICE" AS DEFINED BY NEW YORK
TIMES.  THERE WAS NO EVIDENCE THAT THE MANAGING EDITOR OF AMERICAN
OPINION KNEW OF THE FALSITY OF THE ACCUSATIONS MADE IN THE ARTICLE.  IN
FACT, HE KNEW NOTHING ABOUT PETITIONER EXCEPT WHAT HE LEARNED FROM THE
ARTICLE.  THE COURT CORRECTLY NOTED THAT MERE PROOF OF FAILURE TO
INVESTIGATE, WITHOUT MORE, CANNOT ESTABLISH RECKLESS DISREGARD FOR THE
TRUTH.  RATHER, THE PUBLISHER MUST ACT WITH A "'HIGH DEGREE OF
AWARENESS OF . . . PROBABLE FALSITY.'"  ST AMANT V. THOMPSON, 390 U.S.
727, 731 (1968); ACCORD, BECKLEY NEWSPAPERS CORP. V. HANKS, 389 U.S.
81, 84 - 85 (1967); GARRISON V. LOUISIANA, 379 U.S. 64, 75 - 76
(1964).  THE EVIDENCE IN THIS CASE DID NOT REVEAL THAT RESPONDENT HAD
CAUSE FOR SUCH AN AWARENESS.  THE COURT OF APPEALS THEREFORE AFFIRMED,
471 F.2D 801 (1972).  FOR THE REASONS STATED BELOW, WE REVERSE. 

        II 

THE PRINCIPAL ISSUE IN THIS CASE IS WHETHER A NEWSPAPER OR
BROADCASTER THAT PUBLISHES DEFAMATORY FALSEHOODS ABOUT AN INDIVIDUAL
WHO IS NEITHER A PUBLIC OFFICIAL NOR A PUBLIC FIGURE MAY CLAIM A
CONSTITUTIONAL PRIVILEGE AGAINST LIABILITY FOR THE INJURY INFLICTED BY
THOSE STATEMENTS.  THE COURT CONSIDERED THIS QUESTION ON THE RATHER
DIFFERENT SET OF FACTS PRESENTED IN ROSENBLOOM V. METROMEDIA, INC., 403
U.S. 29 (1971).  ROSENBLOOM, A DISTRIBUTOR OF NUDIST MAGAZINES, WAS
ARRESTED FOR SELLING ALLEGEDLY OBSCENE MATERIAL WHILE MAKING A DELIVERY
TO A RETAIL DEALER.  THE POLICE OBTAINED A WARRANT AND SEIZED HIS
ENTIRE INVENTORY OF 3,000 BOOKS AND MAGAZINES.  HE SOUGHT AND OBTAINED
AN INJUNCTION PROHIBITING FURTHER POLICE INTERFERENCE WITH HIS
BUSINESS.  HE THEN SUED A LOCAL RADIO STATION FOR FAILING TO NOTE IN
TWO OF ITS NEWSCASTS THAT THE 3,000 ITEMS SEIZED WERE ONLY "REPORTEDLY"
OR "ALLEGEDLY" OBSCENE AND FOR BROADCASTING REFERENCES TO "THE SMUT
LITERATURE RACKET" AND TO "GIRLIE-BOOK PEDDLERS" IN ITS COVERAGE OF THE
COURT PROCEEDING FOR INJUCTIVE RELIEF.  HE OBTAINED A JUDGMENT AGAINST
THE RADIO STATION, BUT THE COURT OF APPEALS FOR THE THIRD CIRCUIT HELD
THE NEW YORK TIMES PRIVILEGE APPLICABLE TO THE BROADCAST AND REVERSED. 
415 F.2D 892 (1969). 

THIS COURT AFFIRMED THE DECISION BELOW, BUT NO MAJORITY COULD AGREE
ON A CONTROLLING RATIONALE.  THE EIGHT JUSTICES /5/ WHO PARTICIPATED IN
ROSENBLOOM ANNOUNCED THEIR VIEWS IN FIVE SEPARATE OPINIONS, NONE OF
WHICH COMMANDED MORE THAN THREE VOTES.  THE SEVERAL STATEMENTS NOT ONLY
REVEAL DISAGREEMENT ABOUT THE APPROPRIATE RESULT IN THAT CASE; THEY
ALSO REFLECT DIVERGENT TRADITIONS OF THOUGHT ABOUT THE GENERAL PROBLEM
OF RECONCILING THE LAW OF DEFAMATION WITH THE FIRST AMENDMENT.  ONE
APPROACH HAS BEEN TO EXTEND THE NEW YORK TIMES TEST TO AN EXPANDING
VARIETY OF SITUATIONS.  ANOTHER HAS BEEN TO VARY THE LEVEL OF
CONSTITUTIONAL PRIVILEGE FOR DEFAMATORY FALSEHOOD WITH THE STATUS OF
THE PERSON DEFAMED.  AND A THIRD VIEW WOULD GRANT TO THE PRESS AND
BROADCAST MEDIA ABSOLUTE IMMUNITY FROM LIABILITY FOR DEFAMATION.  TO
PLACE OUR HOLDING IN THE PROPER CONTEXT, WE PREFACE OUR DISCUSSION OF
THIS CASE WITH A REVIEW OF THE SEVERAL ROSENBLOOM OPINIONS AND THEIR
ANTECEDENTS. 

IN AFFIRMING THE TRIAL COURT'S JUDGMENT IN THE INSTANT CASE, THE
COURT OF APPEALS RELIED ON MR. JUSTICE BRENNAN'S CONCLUSION FOR THE
ROSENBLOOM PLURALITY THAT "ALL DISCUSSION AND COMMUNICATION INVOLVING
MATTERS OF PUBLIC OR GENERAL CONCERN," 403 U.S.,AT 44, WARRANT THE
PROTECTION FROM LIABILITY FOR DEFAMATION ACCORDED BY THE RULE
ORIGINALLY ENUNCIATED IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254
(1964).  THERE THIS COURT DEFINED A CONSTITUTIONAL PRIVILEGE INTENDED
TO FREE CRITICISM OF PUBLIC OFFICIALS FROM THE RESTRAINTS IMPOSED BY
THE COMMON LAW OF DEFAMATION.  THE TIMES RAN A POLITICAL ADVERTISEMENT
ENDORSING CIVIL RIGHTS DEMONSTRATIONS BY BLACK STUDENTS IN ALABAMA AND
IMPLIEDLY CONDEMNING THE PERFORMANCE OF LOCAL LAW-ENFORCEMENT
OFFICIALS.  A POLICE COMMISSIONER ESTABLISHED IN STATE COURT THAT
CERTAIN MISSTATEMENTS IN THE ADVERTISEMENT REFERRED TO HIM AND THAT
THEY CONSTITUTED LIBEL PER SE UNDER ALABAMA LAW.  THIS SHOWING LEFT THE
TIMES WITH THE SINGLE DEFENSE OF TRUTH, FOR UNDER ALABAMA LAW NEITHER
GOOD FAITH NOR REASONABLE CARE WOULD PROTECT THE NEWSPAPER FROM
LIABILITY.  THIS COURT CONCLUDED THAT A "RULE COMPELLING THE CRITIC OF
OFFICIAL CONDUCT TO GUARANTEE THE TRUTH OF ALL HIS FACTUAL ASSERTIONS"
WOULD DETER PROTECTED SPEECH, ID., AT 279, AND ANNOUNCED THE
CONSTITUTIONAL PRIVILEGE DESIGNED TO COUNTER THAT EFFECT: 

      "THE CONSTITUTIONAL GUARANTEES REQUIRE, WE THINK, A FEDERAL

  RULE THAT PROHIBITS A PUBLIC OFFICIAL FROM RECOVERING DAMAGES FOR

  A DEFAMATORY FALSEHOOD RELATING TO HIS OFFICIAL CONDUCT UNLESS HE

  PROVES THAT THE STATEMENT WAS MADE WITH 'ACTUAL MALICE'--THAT IS,

  WITH KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS DISREGARD OF

  WHETHER IT WAS FALSE OR NOT."  ID., AT 279 - 280.  /6/ 

THREE YEARS AFTER NEW YORK TIMES, A MAJORITY OF COURT AGREED TO
EXTEND THE CONSTITUTIONAL PRIVILEGE TO DEFAMATORY CRITICISM OF "PUBLIC
FIGURES."  THIS EXTENSION WAS ANNOUNCED IN CURTIS PUBLISHING CO. V.
BUTTS AND ITS COMPANION, ASSOCIATED PRESS V. WALKER, 388 U.S. 130, 162
(1967).  THE FIRST CASE INVOLVED THE SATURDAY EVENING POST'S CHARGE
THAT COACH WALLY BUTTS OF THE UNIVERSITY OF GEORGIA HAD CONSPIRED WITH
COACH "BEAR"  BRYANT OF THE UNIVERSITY OF ALABAMA TO FIX A FOOTBALL
GAME BETWEEN THEIR RESPECTIVE SCHOOLS.  WALKER INVOLVED AN ERRONEOUS
ASSOCIATED PRESS ACCOUNT OF FORMER MAJOR GENERAL EDWIN WALKER'S
PARTICIPATION IN A UNIVERSITY OF MISSISSIPPI CAMPUS RIOT.  BECAUSE
BUTTS WAS PAID BY A PRIVATE ALUMNI ASSOCIATION AND WALKER HAD RESIGNED
FROM THE ARMY, NEITHER COULD BE CLASSIFIED AS A "PUBLIC OFFICIAL" UNDER
NEW YORK TIMES.  ALTHOUGH MR. JUSTICE HARLAN ANNOUNCED THE RESULT IN
BOTH CASES, A MAJORITY OF THE COURT AGREED WITH MR. CHIEF JUSTICE
WARREN'S CONCLUSION THAT THE NEW YORK TIMES TEST SHOULD APPLY TO
CRITICISM OF "PUBLIC FIGURES"  AS WELL AS "PUBLIC OFFICIALS."  /7/  THE
COURT EXTENDED THE CONSTITUTIONAL PRIVILEGE ANNOUNCED IN THAT CASE TO
PROTECT DEFAMATORY CRITICISM OF NONPUBLIC PERSONS WHO "ARE NEVERTHELESS
INTIMATELY INVOLVED IN THE RESOLUTION OF IMPORTANT PUBLIC QUESTIONS OR,
BY REASON OF THEIR FAME, SHAPE EVENTS IN AREAS OF CONCERN TO SOCIETY AT
LARGE."  ID., AT 164 (WARREN, C. J., CONCURRING IN RESULT). 

IN HIS OPINION FOR THE PLURALITY IN ROSENBLOOM V. METROMEDIA, INC.,
403 U.S. 29 (1971), MR. JUSTICE BRENNAN TOOK THE NEW YORK TIMES
PRIVILEGE ONE STEP FURTHER.  HE CONCLUDED THAT ITS PROTECTION SHOULD
EXTEND TO DEFAMATORY FALSEHOODS RELATING TO PRIVATE PERSONS IF THE
STATEMENTS CONCERNED MATTERS OF GENERAL OR PUBLIC INTEREST.  HE ABJURED
THE SUGGESTED DISTINCTION BETWEEN PUBLIC OFFICIALS AND PUBLIC FIGURES
ON THE ONE HAND AND PRIVATE INDIVIDUALS ON THE OTHER.  HE FOCUSED
INSTEAD ON SOCIETY'S INTEREST IN LEARNING ABOUT CERTAIN ISSUES:  "IF A
MATTER IS A SUBJECT OF PUBLIC OR GENERAL INTEREST, IT CANNOT SUDDENLY
BECOME LESS SO MERELY BECAUSE A PRIVATE INDIVIDUAL IS INVOLVED, OR
BECAUSE IN SOME SENSE THE INDIVIDUAL DID NOT 'VOLUNTARILY' CHOOSE TO
BECOME INVOLVED."  ID., AT 43.  THUS, UNDER THE PLURALITY OPINION, A
PRIVATE CITIZEN INVOLUNTARILY ASSOCIATED WITH A MATTER OF GENERAL
INTEREST HAS NO RECOURSE FOR INJURY TO HIS REPUTATION UNLESS HE CAN
SATISFY THE DEMANDING REQUIREMENTS OF THE NEW YORK TIMES TEST. 

TWO MEMBERS OF THE COURT CONCURRED IN THE RESULT IN ROSENBLOOM BUT
DEPARTED FROM THE REASONING OF THE PLURALITY.  MR. JUSTICE BLACK
RESTATED HIS VIEW, LONG SHARED BY MR. JUSTICE DOUGLAS, THAT THE FIRST
AMENDMENT CLOAKS THE NEWS MEDIA WITH AN ABSOLUTE AND INDEFEASIBLE
IMMUNITY FROM LIABILITY FOR DEFAMATION.  ID., AT 57.  MR. JUSTICE WHITE
CONCURRED ON A NARROWER GROUND.  IBID. HE CONCLUDED THAT "THE FIRST
AMENDMENT GIVES THE PRESS AND THE BROADCAST MEDIA A PRIVILEGE TO REPORT
AND COMMENT UPON THE OFFICIAL ACTIONS OF PUBLIC SERVANTS IN FULL
DETAIL, WITH NO REQUIREMENT THAT THE REPUTATION OR THE PRIVACY OF AN
INDIVIDUAL INVOLVED IN OR AFFECTED BY THE OFFICIAL ACTION BE SPARED
FROM PUBLIC VIEW."  ID., AT 62.  HE THEREFORE DECLINED TO REACH THE
BROADER QUESTIONS ADDRESSED BY THE OTHER JUSTICES. 

MR. JUSTICE HARLAN DISSENTED.  ALTHOUGH HE HAD JOINED THE OPINION OF
THE COURT IN NEW YORK TIMES, IN CURTIS PUBLISHING CO. HE HAD CONTESTED
THE EXTENSION OF THE PRIVILEGE TO PUBLIC FIXTURES.  THERE HE HAD ARGUED
THAT A PUBLIC FIGURE WHO HELD NO GOVERNMENTAL OFFICE SHOULD BE ALLOWED
TO RECOVER DAMAGES FOR DEFAMATION "ON A SHOWING OF HIGHLY UNREASONABLE
CONDUCT CONSTITUTING AN EXTREME DEPARTURE FROM THE STANDARDS OF
INVESTIGATION AND REPORTING ORDINARILY ADHERED TO BY RESPONSIBLE
PUBLISHERS."  388 U.S.,AT 155.  IN HIS CURTIS PUBLISHING CO. OPINION
MR. JUSTICE HARLAN HAD DISTINGUISHED NEW YORK TIMES PRIMARILY ON THE
GROUND THAT DEFAMATION ACTIONS BY PUBLIC OFFICIALS "LAY CLOSE TO
SEDITIOUS LIBEL . . . ."  ID., AT 153.  RECOVERY OF DAMAGES BY ONE WHO
HELD NO PUBLIC OFFICE, HOWEVER, COULD NOT "BE VIEWED AS A VINDICATION
OF GOVERNMENTAL POLICY."  ID., AT 154.  ADDITIONALLY, HE HAD INTIMATED
THAT, BECAUSE MOST PUBLIC OFFICIALS ENJOYED ABSOLUTE IMMUNITY FROM
LIABILITY FOR THEIR OWN DEFAMATORY UTTERANCES UNDER BARR V. MATTEO, 360
U.S. 564 (1959), THEY LACKED A STRONG CLAIM TO THE PROTECTION OF THE
COURTS. 

IN ROSENBLOOM MR. JUSTICE HARLAN MODIFIED THESE VIEWS.  HE
ACQUIESCED IN THE APPLICATION OF THE PRIVILEGE TO DEFAMATION OF PUBLIC
FIGURES BUT ARGUED THAT A DIFFERENT RULE SHOULD OBTAIN WHERE DEFAMATORY
FALSEHOOD HARMED A PRIVATE INDIVIDUAL.  HE NOTED THAT A PRIVATE PERSON
HAS LESS LIKELIHOOD "OF SECURING ACCESS TO CHANNELS OF COMMUNICATION
SUFFICIENT TO REBUT FALSEHOODS CONCERNING HIM" THAN DO PUBLIC OFFICIALS
AND PUBLIC FIGURES, 403 U.S.,AT 70, AND HAS NOT VOLUNTARILY PLACED
HIMSELF IN THE PUBLIC SPOTLIGHT.  MR. JUSTICE HARLAN CONCLUDED THAT THE
STATES COULD CONSTITUTIONALLY ALLOW PRIVATE INDIVIDUALS TO RECOVER
DAMAGES FOR DEFAMATION ON THE BASIS OF ANY STANDARD OF CARE EXCEPT
LIABILITY WITHOUT FAULT. 

MR. JUSTICE MARSHALL DISSENTED IN ROSENBLOOM IN AN OPINION JOINED BY
MR. JUSTICE STEWART.  ID., AT 78.  HE THOUGHT THAT THE PLURALITY'S
"PUBLIC OR GENERAL INTEREST" TEST FOR DETERMINING THE APPLICABILITY OF
THE NEW YORK TIMES PRIVILEGE WOULD INVOLVE THE COURTS IN THE DANGEROUS
BUSINESS OF DECIDING "WHAT INFORMATION IS RELEVANT TO SELF
GOVERNMENT."  ID., AT 79.  HE ALSO CONTENDED THAT THE PLURALITY'S
POSITION INADEQUATELY SERVED "SOCIETY'S INTEREST IN PROTECTING PRIVATE
INDIVIDUALS FROM BEING THRUST INTO THE PUBLIC EYE BY THE DISTORTING
LIGHT OF DEFAMATION."  IBID. MR. JUSTICE MARSHALL THEREFORE REACHED THE
CONCLUSION, ALSO REACHED BY MR. JUSTICE HARLAN, THAT THE STATES SHOULD
BE "ESSENTIALLY FREE TO CONTINUE THE EVOLUTION OF THE COMMON LAW OF
DEFAMATION AND TO ARTICULATE WHATEVER FAULT STANDARD BEST SUITS THE
STATE'S NEED," SO LONG AS THE STATES DID NOT IMPOSE LIABILITY WITHOUT
FAULT.  ID., AT 86.  THE PRINCIPAL POINT OF DISAGREEMENT AMONG THE
THREE DISSENTERS CONCERNED PUNITIVE DAMAGES.  WHEREAS MR. JUSTICE
HARLAN THOUGHT THAT THE STATES COULD ALLOW PUNITIVE DAMAGES IN AMOUNTS
BEARING "A REASONABLE AND PURPOSEFUL RELATIONSHIP TO THE ACTUAL HARM
DONE . . .," ID., AT 75, MR. JUSTICE MARSHALL CONCLUDED THAT THE SIZE
AND UNPREDICTABILITY OF JURY AWARDS OF EXEMPLARY DAMAGES UNNECESSARILY
EXACERBATED THE PROBLEMS OF MEDIA SELF-CENSORSHIP AND THAT SUCH DAMAGES
SHOULD THEREFORE BE FORBIDDEN. 

        III 

WE BEGIN WITH THE COMMON GROUND.  UNDER THE FIRST AMENDMENT THERE IS
NO SUCH THING AS A FALSE IDEA.  HOWEVER PERNICIOUS AN OPINION MAY SEEM,
WE DEPEND FOR ITS CORRECTION NOT ON THE CONSCIENCE OF JUDGES AND JURIES
BUT ON THE COMPETITION OF OTHER IDEAS.  /8/  BUT THERE IS NO
CONSTITUTIONAL VALUE IN FALSE STATEMENTS OF FACT.  NEITHER THE
INTENTIONAL LIE NOR THE CARELESS ERROR MATERIALLY ADVANCES SOCIETY'S
INTEREST IN "UNINHIBITED, ROBUTS, AND WIDE-OPEN" DEBATE ON PUBLIC
ISSUES.  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.,AT 270.  THEY BELONG
TO THAT CATEGORY OF UTTERANCES WHICH "ARE NO ESSENTIAL PART OF ANY
EXPOSITION OF IDEAS, AND ARE OF SUCH SLIGHT SOCIAL VALUE AS A STEP TO
TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED FROM THEM IS CLEARLY
OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND MORALITY."  CHAPLINSKY
V. NEW HAMPSHIRE, 315 U.S. 568, 572 (1942). 

ALTHOUGH THE ERRONEOUS STATEMENT OF FACT IS NOT WORTHY OF
CONSTITUTIONAL PROTECTION, IT IS NEVERTHELESS INEVITABLE IN FREE
DEBATE.  AS JAMES MADISON POINTED OUT IN THE REPORT ON THE VIRGINIA
RESOLUTIONS OF 1798, "SOME DEGREE OF ABUSE IS INSEPARABLE FROM THE
PROPER USE OF EVERY THING; AND IN NO INSTANCE IS THIS MORE TRUE THAN IN
THAT OF THE PRESS."  4 J. ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION
OF 1787, P. 571 (1876).  AND PUNISHMENT OF ERROR RUNS THE RISK OF
INDUCING A CAUTIOUS AND RESTRICTIVE EXERCISE OF THE CONSTITUTIONALLY
GUARANTEED FREEDOMS OF SPEECH AND PRESS.  OUR DECISIONS RECOGNIZE THAT
A RULE OF STRICT LIABILITY THAT COMPELS A PUBLISHER OR BROADCASTER TO
GUARANTEE THE ACCURACY OF HIS FACTUAL ASSERTIONS MAY LEAD TO
INTOLERABLE SELF-CENSORSHIP.  ALLOWING THE MEDIA TO AVOID LIABILITY
ONLY BY PROVING THE TRUTH OF ALL INJURIOUS STATEMENTS DOES NOT ACCORD
ADEQUATE PROTECTION TO FIRST AMENDMENT LIBERTIES.  AS THE COURT STATED
IN NEW YORK TIMES CO. V. SULLIVAN, SUPRA, AT 279, "ALLOWANCE OF THE
DEFENSE OF TURTH, WITH THE BURDEN OF PROVING IT ON THE DEFENDANT, DOES
NOT MEAN THAT ONLY FALSE SPEECH WILL BE DETERRED."  THE FIRST AMENDMENT
REQUIRES THAT WE PROTECT SOME FALSEHOOD IN ORDER TO PROTECT SPEECH THAT
MATTERS. 

THE NEED TO AVOID SELF-CENSORSHIP BY THE NEWS MEDIA IS, HOWEVER, NOT
THE ONLY SOCIETAL VALUE AT ISSUE.  IF IT WERE, THIS COURT WOULD HAVE
EMBRACED LONG AGO THE VIEW THAT PUBLISHERS AND BROADCASTERS ENJOY AN
UNCONDITIONAL AND INDEFEASIBLE IMMUNITY FROM LIABILITY FOR DEFAMATION. 
SEE NEW YORK TIMES CO. V. SULLIVAN, SUPRA, AT 293 (BLACK, J.,
CONCURRING); GARRISON V. LOUISIANA, 379 U.S., AT 80 (DOUGLAS, J.,
CONCURRING); CURTIS PUBLISHING CO. V. BUTTS, 388 U.S., AT 170 (OPINION
OF BLACK, J.).  SUCH A RULE WOULD, INDEED, OBVIATE THE FEAR THAT THE
PROPECT OF CIVIL LIABILITY FOR INJURIOUS FALSEHOOD MIGHT DISUADE A
TIMOROUS PRESS FROM THE EFFECTIVE EXERCISE OF FIRST AMENDMENT
FREEDOMS.  YET ABSOLUTE PROTECTION FOR THE COMMUNICATIONS MEDIA
REQUIRES A TOTAL SACRIFICE OF THE COMPETING VALUE SERVED BY THE LAW OF
DEFAMATION. 

THE LEGITIMATE STATE INTEREST UNDERLYING THE LAW OF LIBEL IS THE
COMPENSATION OF INDIVIDUALS FOR THE HARM INFLICTED ON THEM BY
DEFAMATORY FALSEHOOD.  WE WOULD NOT LIGHTLY REQUIRE THE STATE TO
ABANDON THIS PURPOSE, FOR, AS MR. JUSTICE STEWART HAS REMINDED US, THE
INDIVIDUAL'S RIGHT TO THE PROTECTION OF HIS OWN GOOD NAME 

"REFLECTS NO MORE THAN OUR BASIC CONCEPT OF THE ESSENTIAL DIGNITY
AND WORTH OF EVERY HUMAN BEING--A CONCEPT AT THE ROOT OF ANY DECENT
SYSTEM OF ORDERED LIBERTY.  THE PROTECTION OF PRIVATE PERSONALITY, LIKE
THE PROTECTION OF LIFE ITSELF, IS LEFT PRIMARILY TO THE INDIVIDUAL
STATES UNDER THE NINTH AND TENTH AMENDMENTS.  BUT THIS DOES NOT MEAN
THAT THE RIGHT IS ENTITLED TO ANY LESS RECOGNITION BY THIS COURT AS A
BASIC OF OUR CONSTITUTIONAL SYSTEM."  ROSENBLATT V. BAER, 383 U.S. 75,
92 (1966) (CONCURRING OPINION). 

SOME TENSION NECESSARILY EXISTS BETWEEN THE NEED FOR A VIGOROUS AND
UNINHIBITED PRESS AND THE LEGITIMATE INTEREST IN REDRESSING WRONGFUL
INJURY.  AS MR. JUSTICE HARLAN STATED, "SOME ANTITHESIS BETWEEN FREEDOM
OF SPEECH AND PRESS AND LIBEL ACTIONS PERSISTS, FOR LIBEL REMAINS
PREMISED ON THE CONTENT OF SPEECH AND LIMITS THE FREEDOM OF THE
PUBLISHER TO EXPRESS CERTAIN SENTIMENTS, AT LEAST WITHOUT GUARANTEEING
LEGAL PROOF OF THEIR SUBSTANTIAL ACCURACY."  CURTIS PUBLISHING CO. V.
BUTTS, SUPRA, AT 152.  IN OUR CONTINUING EFFORT TO DEFINE THE PROPER
ACCOMMODATION BETWEEN THESE COMPETING CONCERNS, WE HAVE BEEN ESPECIALLY
ANXIOUS TO ASSURE TO THE FREEDOMS OF SPEECH AND PRESS THAT "BREATHING
SPACE"  ESSENTIAL TO THEIR FRUITFUL EXERCISE.  NAACP V. BUTTON, 371
U.S. 415, 433 (1963).  TO THAT END THIS COURT HAS EXTENDED A MEASURE OF
STRATEGIC PROTECTION TO DEFAMATORY FALSEHOOD. 

THE NEW YORK TIMES STANDARD DEFINES THE LEVEL OF CONSTITUTIONAL
PROTECTION APPROPRIATE TO THE CONTEXT OF DEFAMATION OF A PUBLIC
PERSON.  THOSE WHO, BY REASON OF THE NOTORIETY OF THEIR ACHIEVEMENTS OR
THE VIGOR AND SUCCESS WITH WHICH THEY SEEK THE PUBLIC'S ATTENTION, ARE
PROPERLY CLASSED AS PUBLIC FIGURES AND THOSE WHO HOLD GOVERNMENTAL
OFFICE MAY RECOVER FOR INJURY TO REPUTATION ONLY ON CLEAR AND
CONVINCING PROOF THAT THE DEFAMATORY FALSEHOOD WAS MADE WITH KNOWLEDGE
OF ITS FALSITY OR WITH RECKLESS DISREGARD FOR THE TRUTH.  THIS STANDARD
ADMINISTERS AN EXTREMELY POWERFUL ANTIDOTE TO THE INDUCEMENT TO MEDIA
SELF-CENSORSHIP OF THE COMMON-LAW RULE OF STRICT LIABILITY FOR LIBEL
AND SLANDER.  AND IT EXACTS A CORRESPONDINGLY HIGH PRICE FROM THE
VICTIMS OF DEFAMATORY FALSEHOOD.  PLAINLY MANY DESERVING PLAINTIFFS,
INCLUDING SOME INTENTIONALLY SUBJECTED TO INJURY, WILL BE UNABLE TO
SURMOUNT THE BARRIER OF THE NEW YORK TIMES TEST.  DESPITE THIS
SUBSTANTIAL ABRIDGMENT OF THE STATE LAW RIGHT TO COMPENSATION FOR
WRONGFUL HURT TO ONE'S REPUTATION, THE COURT HAS CONCLUDED THAT THE
PROTECTION OF THE NEW YORK TIMES PRIVILEGE SHOULD BE AVAILABLE TO
PUBLISHERS AND BROADCASTERS OF DEFAMATORY FALSEHOOD CONCERNING PUBLIC
OFFICIALS AND PUBLIC FIGURES.  NEW YORK TIMES CO. V. SULLIVAN, SUPRA;
CURTIS PUBLISHING CO. V. BUTTS, SUPRA.  WE THINK THAT THESE DECISIONS
ARE CORRECT, BUT WE DO NOT FIND THEIR HOLDINGS JUSTIFIED SOLELY BY
REFERENCE TO THE INTEREST OF THE PRESS AND BROADCAST MEDIA IN IMMUNITY
FROM LIABILITY.  RATHER, WE BELIEVE THAT THE NEW YORK TIMES RULE STATES
AN ACCOMMODATION BETWEEN THIS CONCERN AND THE LIMITED STATE INTERST
PRESENT IN THE CONTEXT OF LIBEL ACTIONS BROUGHT BY PUBLIC PERSONS.  FOR
THE REASONS STATED BELOW, WE CONCLUDE THAT THE STATE INTEREST IN
COMPENSATING INJURY TO THE REPUTATION OF PRIVATE INDIVIDUALS REQUIRES
THAT A DIFFERENT RULE SHOULD OBTAIN WITH RESPECT TO THEM. 
THEORETICALLY, OF COURSE, THE BALANCE BETWEEN THE NEEDS OF THE PRESS
AND THE INDIVIDUAL'S CLAIM TO COMPENSATION FOR WRONGFUL INJURY MIGHT BE
STRUCK ON A CASE-BY-CASE BASIS.  AS MR. JUSTICE HARLAN HYPOTHESIZED,
"IT MIGHT SEEM, PURELY AS AN ABSTRACT MATTER, THAT THE MOST UTILITARIAN
APPROACH WOULD BE TO SCRUTINIZE CAREFULLY EVERY JURY VERDICT IN EVERY
LIBEL CASE, IN ORDER TO ASCERTAIN WHETHER THE FINAL JUDGMENT LEAVES
FULLY PROTECTED WHATEVER FIRST AMENDMENT VALUES TRANSCEND THE
LEGITIMATE STATE INTEREST IN PROTECTING THE PARTICULAR PLAINTIFF WHO
PREVAILED."  ROSENBLOOM V. METROMEDIA, INC., 403 U.S.,AT 63 (FOOTNOTE
OMITTED).  BUT THIS APPROACH WOULD LEAD TO UNPREDICTABLE RESULTS AND
UNCERTAIN EXPECTATIONS, AND IT COULD RENDER OUR DUTY TO SUPERVISE THE
LOWER COURTS UNMANAGEABLE.  BECAUSE AN AD HOC RESOLUTION OF THE
COMPETING INTERESTS AT STAKE IN EACH PARTICULAR CASE IS NOT FEASIBLE,
WE MUST LAY DOWN BROAD RULES OF GENERAL APPLICATION.  SUCH RULES
NECESSARILY TREAT ALIKE VARIOUS CASES INVOLVING DIFFERENCES AS WELL AS
SIMILARITIES.  THUS IT IS OFTEN TRUE THAT NOT ALL OF THE CONSIDERATIONS
WHICH JUSTIFY ADOPTION OF A GIVEN RULE WILL OBTAIN IN EACH PARTICULAR
CASE DECIDED UNDER ITS AUTHORITY. 

WITH THAT CAVEAT WE HAVE NO DIFFICULTY IN DISTINGUISHING AMONG
DEFAMATION PLAINTIFFS.  THE FIRST REMEDY OF ANY VICTIM OF DEFAMATION IS
SELF-HELP--USING AVAILABLE OPPORTUNITIES TO CONTRADICT THE LIE OR
CORRECT THE ERROR AND THEREBY TO MINIMIZE ITS ADVERSE IMPACT ON
REPUTATION.  PUBLIC OFFICIALS AND PUBLIC FIGURES USUALLY ENJOY
SIGNIFICANTLY GREATER ACCESS TO THE CHANNELS OF EFFECTIVE COMMUNICATION
AND HENCE HAVE A MORE REALISTIC OPPORTUNITY TO COUNTERACT FALSE
STATEMENTS THAN PRIVATE INDIVIDUALS NORMALLY ENJOY.  /9/  PRIVATE
INDIVIDUALS ARE THEREFORE MORE VULNERABLE TO INJURY, AND THE STATE
INTEREST IN PROTECTING THEM IS CORRESPONDINGLY GREATER. 

MORE IMPORTANT THAN THE LIKELIHOOD THAT PRIVATE INDIVIDUALS WILL
LACK EFFECTIVE OPPORTUNITIES FOR REBUTTAL, THERE IS A COMPELLING
NORMATIVE CONSIDERATION UNDERLYING THE DISTINCTION BETWEEN PUBLIC AND
PRIVATE DEFAMATION PLAINTIFFS.  AN INDIVIDUAL WHO DECIDES TO SEEK
GOVERNMENTAL OFFICE MUST ACCEPT CERTAIN NECESSARY CONSEQUENCES OF THAT
INVOLVEMENT IN PUBLIC AFFAIRS.  HE RUNS THE RISK OF CLOSER PUBLIC
SCRUTINY THAN MIGHT OTHERWISE BE THE CASE.  AND SOCIETY'S INTEREST IN
THE OFFICERS OF GOVERNMENT IS NOT STRICTLY LIMITED TO THE FORMAL
DISCHARGE OF OFFICIAL DUTIES.  AS THE COURT POINTED OUT IN GARRISON V.
LOUISIANA, 379 U.S.,AT 77, THE PUBLIC'S INTEREST EXTENDS TO "ANYTHING
WHICH MIGHT TOUCH ON AN OFFICIAL'S FITNESS FOR OFFICE . . . . FEW
PERSONAL ATTRIBUTES ARE MORE GERMANE TO FITNESS FOR OFFICE THAN
DISHONESTY, MALFEASANCE, OR IMPROPER MOTIVATION, EVEN THOUGH THESE
CHARACTERISTICS MAY ALSO AFFECT THE OFFICIAL'S PRIVATE CHARACTER." 

THOSE CLASSED AS PUBLIC FIGURES STAND IN A SIMILAR POSITION. 
HYPOTHETICALLY, IT MAY BE POSSIBLE FOR SOMEONE TO BECOME A PUBLIC
FIGURE THROUGH NO PURPOSEFUL ACTION OF HIS OWN, BUT THE INSTANCES OF
TRULY INVOLUNTARY PUBLIC FIGURES MUST BE EXCEEDINGLY RARE.  FOR THE
MOST PART THOSE WHO ATTAIN THIS STATUS HAVE ASSUMED ROLES OF ESPECIAL
PROMINENCE IN THE AFFAIRS OF SOCIETY.  SOME OCCUPY POSITIONS OF SUCH
PERSUASIVE POWER AND INFLUENCE THAT THEY ARE DEEMED PUBLIC FIGURES FOR
ALL PURPOSES.  MORE COMMONLY, THOSE CLASSED AS PUBLIC FIGURES HAVE
THRUST THEMSELVES TO THE FOREFRONT OF PARTICULAR PUBLIC CONTROVERSIES
IN ORDER TO INFLUENCE THE RESOLUTION OF THE ISSUES INVOLVED.  IN EITHER
EVENT, THEY INVITE ATTENTION AND COMMENT. 

EVEN IF THE FOREGOING GENERALITIES DO NOT OBTAIN IN EVERY INSTANCE,
THE COMMUNICATIONS MEDIA ARE ENTITLED TO ACT ON THE ASSUMPTION THAT
PUBLIC OFFICIALS AND PUBLIC FIGURES HAVE VOLUNTARILY EXPOSED THEMSELVES
TO INCREASED RISK OF INJURY FROM DEFAMATORY FALSEHOOD CONCERNING THEM. 
NO SUCH ASSUMPTION IS JUSTIFIED WITH RESPECT TO A PRIVATE INDIVIDUAL. 
HE HAS NOT ACCEPTED PUBLIC OFFICE OR ASSUMED AN "INFLUENTIAL ROLE IN
ORDERING SOCIETY."  CURTIS PUBLISHING CO. V. BUTTS, 388 U.S., AT 164
(WARREN, C. J., CONCURRING IN RESULT).  HE HAS RELINQUISHED NO PART OF
HIS INTEREST IN THE PROTECTION OF HIS OWN GOOD NAME, AND CONSEQUENTLY
HE HAS A MORE COMPELLING CALL ON THE COURTS FOR REDRESS OF INJURY
INFLICTED BY DEFAMATORY FALSEHOOD.  THUS, PRIVATE INDIVIDUALS ARE NOT
ONLY MORE VULNERABLE TO INJURY THAN PUBLIC OFFICIALS AND PUBLIC
FIGURES; THEY ARE ALSO MORE DESERVING OF RECOVERY. 

FOR THESE REASONS WE CONCLUDE THAT THE STATES SHOULD RETAIN
SUBSTANTIAL LATITUDE IN THEIR EFFORTS TO ENFORCE A LEGAL REMEDY FOR
DEFAMATORY FALSEHOOD INJURIOUS TO THE REPUTATION OF A PRIVATE
INDIVIDUAL.  THE EXTENSION OF THE NEW YORK TIMES TEST PROPOSED BY THE
ROSENBLOOM PLURALITY WOULD ABRIDGE THIS LEGITIMATE STATE INTEREST TO A
DEGREE THAT WE FIND UNACCEPTABLE.  AND IT WOULD OCCASION THE ADDITIONAL
DIFFICULTY OF FORCING STATE AND FEDERAL JUDGES TO DECIDE ON AN AD HOC
BASIS WHICH PUBLICATIONS ADDRESS ISSUES OF "GENERAL OR PUBLIC INTEREST"
AND WHICH DO NOT --TO DETERMINE, IN THE WORDS OF MR. JUSTICE MARSHALL,
"WHAT INFORMATION IS RELEVANT TO SELF-GOVERNMENT."  ROSENBLOOM V.
METROMEDIA, INC., 403 U.S.,AT 79.  WE DOUBT THE WISDOM OF COMMITTING
THIS TASK TO THE CONSCIENCE OF JUDGES.  NOR DOES THE CONSTITUTION
REQUIRE US TO DRAW SO THIN A LINE BETWEEN THE DRASTIC ALTERNATIVES OF
THE NEW YORK TIMES PRIVILEGE AND THE COMMON LAW OF STRICT LIABILITY FOR
DEFAMATORY ERROR.  THE "PUBLIC OR GENERAL INTEREST" TEST FOR
DETERMINING THE APPLICABILITY OF THE NEW YORK TIMES STANDARD TO PRIVATE
DEFAMATION ACTIONS INADEQUATELY SERVES BOTH OF THE COMPETING VALUES AT
STAKE.  ON THE ONE HAND, A PRIVATE INDIVIDUAL WHOSE REPUTATION IS
INJURED BY DEFAMATORY FALSEHOOD THAT DOES CONCERN AN ISSUE OF PUBLIC OR
GENERAL INTEREST HAS NO RECOURSE UNLESS HE CAN MEET THE RIGOROUS
REQUIREMENTS OF NEW YORK TIMES.  THIS IS TRUE DESPITE THE FACTORS THAT
DISTINGUISH THE STATE INTEREST IN COMPENSATING PRIVATE INDIVIDUALS FROM
THE ANALOGOUS INTEREST INVOLVED IN THE CONTEXT OF PUBLIC PERSONS.  ON
THE OTHER HAND, A PUBLISHER OR BROADCASTER OF A DEFAMATORY ERROR WHICH
A COURT DEEMS UNRELATED TO AN ISSUE OF PUBLIC OR GENERAL INTEREST MAY
BE HELD LIABLE IN DAMAGES EVEN IF IT TOOK EVERY REASONABLE PRECAUTION
TO ENSURE THE ACCURACY OF ITS ASSERTIONS.  AND LIABILITY MAY FAR EXCEED
COMPENSATION FOR ANY ACTUAL INJURY TO THE PLAINTIFF, FOR THE JURY MAY
BE PERMITTED TO PRESUME DAMAGES WITHOUT PROOF OF LOSS AND EVEN TO AWARD
PUNITIVE DAMAGES. 

WE HOLD THAT, SO LONG AS THEY DO NOT IMPOSE LIABILITY WITHOUT FAULT,
THE STATES MAY DEFINE FOR THEMSELVES THE APPROPRIATE STANDARD OF
LIABILITY FOR A PUBLISHER OR BROADCASTER OF DEFAMATORY FALSEHOOD
INJURIOUS TO A PRIVATE INDIVIDUAL.  /10/  THIS APPROACH PROVIDES A MORE
EQUITABLE BOUNDARY BETWEEN THE COMPETING CONCERNS INVOLVED HERE.  IT
RECOGNIZES THE STRENGTH OF THE LEGITIMATE STATE INTEREST IN
COMPENSATING PRIVATE INDIVIDUALS FOR WRONGFUL INJURY TO REPUTATION, YET
SHIELDS THE PRESS AND BROADCAST MEDIA FROM THE RIGORS OF STRICT
LIABILITY FOR DEFAMATION.  AT LEAST THIS CONCLUSION OBTAINS WHERE, AS
HERE, THE SUBSTANCE OF THE DEFAMATORY STATEMENT "MAKES SUBSTANTIAL
DANGER TO REPUTATION APPARENT."  /11/  THIS PHRASE PLACES IN
PERSPECTIVE THE CONCLUSION WE ANNOUNCE TODAY.  OUR INQUIRY WOULD
INVOLVE CONSIDERATIONS SOMEWHAT DIFFERENT FROM THOSE DISCUSSED ABOVE IF
A STATE PURPORTED TO CONDITION CIVIL LIABILITY ON A FACTUAL
MISSTATEMENT WHOSE CONTENT DID NOT WARN A REASONABLY PRUDENT EDITOR OR
BROADCASTER OF ITS DEFAMATORY POTENTIAL.  CF. TIME, INC. V. HILL, 385
U.S. 374 (1967).  SUCH A CASE IS NOT NOW BEFORE US, AND WE INTIMATE NO
VIEW AS TO ITS PROPER RESOLUTION. 

        IV 

OUR ACCOMMODATION OF THE COMPETING VALUES AT STAKE IN DEFAMATION
SUITS BY PRIVATE INDIVIDUALS ALLOWS THE STATES TO IMPOSE LIABILITY ON
THE PUBLISHER OR BROADCASTER OF DEFAMATORY FALSEHOOD ON A LESS
DEMANDING SHOWING THAN THAT REQUIRED BY NEW YORK TIMES.  THIS
CONCLUSION IS NOT BASED ON A BELIEF THAT THE CONSIDERATIONS WHICH
PROMPTED THE ADOPTION OF THE NEW YORK TIMES PRIVILEGE FOR DEFAMATION OF
PUBLIC OFFICIALS AND ITS EXTENSION TO PUBLIC FIGURES ARE WHOLLY
INAPPLICABLE TO THE CONTEXT OF PRIVATE INDIVIDUALS.  RATHER, WE ENDORSE
THIS APPROACH IN RECOGNITION OF THE STRONG AND LEGITIMATE STATE
INTEREST IN COMPENSATING PRIVATE INDIVIDUALS FOR INJURY TO REPUTATION. 
BUT THIS COUNTERVAILING STATE INTEREST EXTENDS NO FURTHER THAN
COMPENSATION FOR ACTUAL INJURY.  FOR THE REASONS STATED BELOW, WE HOLD
THAT THE STATES MAY NOT PERMIT RECOVERY OF PRESUMED OR PUNITIVE
DAMAGES, AT LEAST WHEN LIABILITY IS NOT BASED ON A SHOWING OF KNOWLEDGE
OF FALSITY OR RECKLESS DISREGARD FOR THE TRUTH. 

THE COMMON LAW OF DEFAMATION IS AN ODDITY OF TORT LAW, FOR IT ALLOWS
RECOVERY OF PURPORTEDLY COMPENSATORY DAMAGES WITHOUT EVIDENCE OF ACTUAL
LOSS.  UNDER THE TRADITIONAL RULES PERTAINING TO ACTIONS FOR LIBEL, THE
EXISTENCE OF INJURY IS PRESUMED FROM THE FACT OF PUBLICATION.  JURIES
MAY AWARD SUBSTANTIAL SUMS AS COMPENSATION FOR SUPPOSED DAMAGE TO
REPUTATION WITHOUT ANY PROOF THAT SUCH HARM ACTUALLY OCCURRED.  THE
LARGELY UNCONTROLLED DISCRETION OF JURIES TO AWARD DAMAGES WHERE THERE
IS NO LOSS UNNECESSARILY COMPOUNDS THE POTENTIAL OF ANY SYSTEM OF
LIABILITY FOR DEFAMATORY FALSEHOOD TO INHIBIT THE VIGOROUS EXERCISE OF
FIRST AMENDMENT FREEDOMS.  ADDITIONALLY, THE DOCTRINE OF PRESUMED
DAMAGES INVITES JURIES TO PUNISH UNPOPULAR OPINION RATHER THAN TO
COMPENSATE INDIVIDUALS FOR INJURY SUSTAINED BY THE PUBLICATION OF A
FALSE FACT.  MORE TO THE POINT, THE STATES HAVE NO SUBSTANTIAL INTEREST
IN SECURING FOR PLAINTIFFS SUCH AS THIS PETITIONER GRATUITOUS AWARDS OF
MONEY DAMAGES FAR IN EXCESS OF ANY ACTUAL INJURY. 

WE WOULD NOT, OF COURSE, INVALIDATE STATE LAW SIMPLY BECAUSE WE
DOUBT ITS WISDOM, BUT HERE WE ARE ATTEMPTING TO RECONCILE STATE LAW
WITH A COMPETING INTEREST GROUNDED IN THE CONSTITUTIONAL COMMAND OF THE
FIRST AMENDMENT.  IT IS THEREFORE APPROPRIATE TO REQUIRE THAT STATE
REMEDIES FOR DEFAMATORY FALSEHOOD REACH NO FARTHER THAN IS NECESSARY TO
PROTECT THE LEGITIMATE INTEREST INVOLVED.  IT IS NECESSARY TO RESTRICT
DEFAMATION PLAINTIFFS WHO DO NOT PROVE KNOWLEDGE OF FALSITY OR RECKLESS
DISREGARD FOR THE TRUTH TO COMPENSATION FOR ACTUAL INJURY.  WE NEED NOT
DEFINE "ACTUAL INJURY," AS TRIAL COURTS HAVE WIDE EXPERIENCE IN FRAMING
APPROPRIATE JURY INSTRUCTIONS IN TORT ACTIONS.  SUFFICE IT TO SAY THAT
ACTUAL INJURY IS NOT LIMITED TO OUT-OF-POCKET LOSS.  INDEED, THE MORE
CUSTOMARY TYPES OF ACTUAL HARM INFLICTED BY DEFAMATORY FALSEHOOD
INCLUDE IMPAIRMENT OF REPUTATION AND STANDING IN THE COMMUNITY,
PERSONAL HUMILIATION, AND MENTAL ANGUISH AND SUFFERING.  OF COURSE,
JURIES MUST BE LIMITED BY APPROPRIATE INSTRUCTIONS, AND ALL AWARDS MUST
BE SUPPORTED BY COMPETENT EVIDENCE CONCERNING THE INJURY, ALTHOUGH
THERE NEED BE NO EVIDENCE WHICH ASSIGNS AN ACTUAL DOLLAR VALUE TO THE
INJURY. 

WE ALSO FIND NO JUSTIFICATION FOR ALLOWING AWARDS OF PUNITIVE
DAMAGES AGAINST PUBLISHERS AND BROADCASTERS HELD LIABLE UNDER STATE
DEFINED STANDARDS OF LIABILITY FOR DEFAMATION.  IN MOST JURISDICTIONS
JURY DISCRETION OVER THE AMOUNTS AWARDED IS LIMITED ONLY BY THE GENTLE
RULE THAT THEY NOT BE EXCESSIVE.  CONSEQUENTLY, JURIES ASSESS PUNITIVE
DAMAGES IN WHOLLY UNPREDICTABLE AMOUNTS BEARING NO NECESSARY RELATION
TO THE ACTUAL HARM CAUSED.  AND THEY REMAIN FREE TO USE THEIR
DISCRETION SELECTIVELY TO PUNISH EXPRESSIONS OF UNPOPULAR VIEWS.  LIKE
THE DOCTRINE OF PRESUMED DAMAGES, JURY DISCRETION TO AWARD PUNITIVE
DAMAGES UNNECESSARILY EXACERBATES THE DANGER OF MEDIA SELF-CENSORSHIP,
BUT, UNLIKE THE FORMER RULE, PUNITIVE DAMAGES ARE WHOLLY IRRELEVANT TO
THE STATE INTEREST THAT JUSTIFIES A NEGLIGENCE STANDARD FOR PRIVATE
DEFAMATION ACTIONS.  THEY ARE NOT COMPENSATION FOR INJURY.  INSTEAD,
THEY ARE PRIVATE FINES LEVIED BY CIVIL JURIES TO PUNISH REPREHENSIBLE
CONDUCT AND TO DETER ITS FUTURE OCCURRENCE.  IN SHORT, THE PRIVATE
DEFAMATION PLAINTIFF WHO ESTABLISHES LIABILITY UNDER A LESS DEMANDING
STANDARD THAN THAT STATED BY NEW YORK TIMES MAY RECOVER ONLY SUCH
DAMAGES AS ARE SUFFICIENT TO COMPENSATE HIM FOR ACTUAL INJURY. 

        V 

NOTWITHSTANDING OUR REFUSAL TO EXTEND THE NEW YORK TIMES PRIVILEGE
TO DEFAMATION OF PRIVATE INDIVIDUALS, RESPONDENT CONTENDS THAT WE
SHOULD AFFIRM THE JUDGMENT BELOW ON THE GROUND THAT PETITIONER IS
EITHER A PUBLIC OFFICIAL OR A PUBLIC FIGURE.  THERE IS LITTLE BASIS FOR
THE FORMER ASSERTION.  SEVERAL YEARS PRIOR TO THE PRESENT INCIDENT,
PETITIONER HAD SERVED BRIEFLY ON HOUSING COMMITTEES APPOINTED BY THE
MAYOR OF CHICAGO, BUT AT THE TIME OF PUBLICATION HE HAD NEVER HELD ANY
REMUNERATIVE GOVERNMENTAL POSITION.  RESPONDENT ADMITS THIS BUT ARGUES
THAT PETITIONER'S APPEARANCE AT THE CORONER'S INQUEST RENDERED HIM A
"DE FACTO PUBLIC OFFICIAL."  OUR CASES RECOGNIZE NO SUCH CONCEPT. 
RESPONDENT'S SUGGESTION WOULD SWEEP ALL LAWYERS UNDER THE NEW YORK
TIMES RULE AS OFFICERS OF THE COURT AND DISTORT THE PLAIN MEANING OF
THE "PUBLIC OFFICIAL"  CATEGORY BEYOND ALL RECOGNITION.  WE DECLINE TO
FOLLOW IT. 

RESPONDENT'S CHARACTERIZATION OF PETITIONER AS A PUBLIC FIGURE
RAISES A DIFFERENT QUESTION.  THAT DESIGNATION MAY REST ON EITHER OF
TWO ALTERNATIVE BASES.  IN SOME INSTANCES AN INDIVIDUAL MAY ACHIEVE
SUCH PERVASIVE FAME NOR NOTORIETY THAT HE BECOMES A PUBLIC FIGURE FOR
ALL PURPOSES AND IN ALL CONTEXTS.  MORE COMMONLY, AN INDIVIDUAL
VOLUNTARILY INJECTS HIMSELF OR IS DRAWN INTO A PARTICULAR PUBLIC
CONTROVERSY AND THEREBY BECOMES A PUBLIC FIGURE FOR A LIMITED RANGE OF
ISSUES.  IN EITHER CASE SUCH PERSONS ASSUME SPECIAL PROMINENCE IN THE
RESOLUTION OF PUBLIC QUESTIONS.     PETITIONER HAS LONG BEEN ACTIVE IN
COMMUNITY AND PROFESSIONAL AFFAIRS.  HE HAS SERVED AS AN OFFICER OF
LOCAL CIVIC GROUPS AND OF VARIOUS PROFESSIONAL ORGANIZATIONS, AND HE
HAS PUBLISHED SEVERAL BOOKS AND ARTICLES ON LEGAL SUBJECTS.  ALTHOUGH
PETITIONER WAS CONSEQUENTLY WELL KNOWN IN SOME CIRCLES, HE HAD ACHIEVED
NO GENERAL FAME OR NOTORIETY IN THE COMMUNITY.  ONLY ONE OF THE
PROSPECTIVE JURORS CALLED AT THE TRIAL HAD EVER HEARD OF PETITIONER
PRIOR TO THIS LITIGATION, AND RESPONDENT OFFERED NO PROOF THAT THIS
RESPONSE WAS ATYPICAL OF THE LOCAL POPULATION.  WE WOULD NOT LIGHTLY
ASSUME THAT A CITIZEN'S PARTICIPATION IN COMMUNITY AND PROFESSIONAL
AFFAIRS RENDERED HIM A PUBLIC FIGURE FOR ALL PURPOSES.  ABSENT CLEAR
EVIDENCE OF GENERAL FAME OR NOTORIETY IN THE COMMUNITY, AND PERVASIVE
INVOLVEMENT IN THE AFFAIRS OF SOCIETY, AN INDIVIDUAL SHOULD NOT BE
DEEMED A PUBLIC PERSONALITY FOR ALL ASPECTS OF HIS LIFE.  IT IS
PREFERABLE TO REDUCE THE PUBLIC-FIGURE QUESTION TO A MORE MEANINGFUL
CONTEXT BY LOOKING TO THE NATURE AND EXTENT OF AN INDIVIDUAL'S
PARTICIPATION IN THE PARTICULAR CONTROVERSY GIVING RISE TO THE
DEFAMATION. 

IN THIS CONTEXT IT IS PLAIN THAT PETITIONER WAS NOT A PUBLIC
FIGURE.  HE PLAYED A MINIMAL ROLE AT THE CORONER'S INQUEST, AND HIS
PARTICIPATION RELATED SOLELY TO HIS REPRESENTATION OF A PRIVATE
CLIENT.  HE TOOK NO PART IN THE CRIMINAL PROSECUTION OF OFFICER
NUCCIO.  MOREOVER, HE NEVER DISCUSSED EITHER THE CRIMINAL OR CIVIL
LITIGATION WITH THE PRESS AND WAS NEVER QUOTED AS HAVING DONE SO.  HE
PLAINLY DID NOT THRUST HIMSELF INTO THE VORTEX OF THIS PUBLIC ISSUE,
NOR DID HE ENGAGE THE PUBLIC'S ATTENTION IN AN ATTEMPT TO INFLUENCE ITS
OUTCOME.  WE ARE PERSUADED THAT THE TRIAL COURT DID NOT ERR IN REFUSING
TO CHARACTERIZE PETITIONER AS A PUBLIC FIGURE FOR THE PURPOSE OF THIS
LITIGATION. 

WE THEREFORE CONCLUDE THAT THE NEW YORK TIMES STANDARD IS
INAPPLICABLE TO THIS CASE AND THAT THE TRIAL COURT ERRED IN ENTERING
JUDGMENT FOR RESPONDENT.  BECAUSE THE JURY WAS ALLOWED TO IMPOSE
LIABILITY WITHOUT FAULT AND WAS PERMITTED TO PRESUME DAMAGES WITHOUT
PROOF OF INJURY, A NEW TRIAL IS NECESSARY.  WE REVERSE AND REMAND FOR
FURTHER PROCEEDINGS IN ACCORD WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  PETITIONER FILED A CROSS-MOTION FOR SUMMARY JUDGMENT ON GROUNDS
NOT SPECIFIED IN THE RECORD.  THE COURT DENIED PETITIONER'S CROSS
MOTION WITHOUT DISCUSSION IN A MEMORANDUM OPINION OF SEPTEMBER 16,
1970. 

/2/  322 F.SUPP.  997 (1970).  PETITIONER ASSERTS THAT THE ENTRY OF
JUDGMENT N. O. V. ON THE BASIS OF HIS FAILURE TO SHOW KNOWLEDGE OF
FALSITY OR RECKLESS DISREGARD FOR THE TRUTH CONSTITUTED UNFAIR SURPRISE
AND DEPRIVED HIM OF A FULL AND FAIR OPPORTUNITY TO PROVE "ACTUAL
MALICE" ON THE PART OF RESPONDENT.  THIS CONTENTION IS NOT SUPPORTED BY
THE RECORD.  IT IS CLEAR THAT THE TRIAL COURT GAVE PETITIONER NO REASON
TO ASSUME THAT THE NEW YORK TIMES PRIVILEGE WOULD NOT BE AVAILABLE TO
RESPONDENT.  THE COURT'S MEMORANDUM OPINION DENYING RESPONDENT'S
PRETRIAL MOTION FOR SUMMARY JUDGMENT DOES NOT STATE THAT THE NEW YORK
TIMES STANDARD WAS INAPPLICABLE TO THIS CASE.  RATHER, IT REVEALS THAT
THE TRIAL JUDGE THOUGHT IT POSSIBLE FOR PETITIONER TO MAKE A FACTUAL
SHOWING SUFFICIENT TO OVERCOME RESPONDENT'S CLAIM OF CONSTITUTIONAL
PRIVILEGE.  IT STATES IN PART: 

"WHEN THERE IS FACTUAL DISPUTE AS TO THE EXISTENCE OF ACTUAL MALICE,
SUMMARY JUDGMENT IS IMPROPER. 

        .          .  .          . 

"IN THE INSTANT CASE A JURY MIGHT INFER FROM THE EVIDENCE THAT
(RESPONDENT'S) FAILURE TO INVESTIGATE THE TRUTH OF THE ALLEGATIONS,
COUPLED WITH ITS RECEIPT OF COMMUNICATIONS CHALLENGING THE FACTUAL
ACCURACY OF THIS AUTHOR IN THE PAST, AMOUNTED TO ACTUAL MALICE, THAT
IS, "RECKLESS DISREGARD" OF WHETHER THE ALLEGATIONS WERE TRUE OR NOT. 
NEW YORK TIMES (CO.)  V. SULLIVAN, (376 U.S. 254,) 279 - 280
((1964))."  MEM. OP., SEPT. 16, 1970. 

THUS, PETITIONER KNEW OR SHOULD HAVE KNOWN THAT THE OUTCOME OF THE
TRIAL MIGHT HINGE ON HIS ABILITY TO SHOW BY CLEAR AND CONVINCING
EVIDENCE THAT RESPONDENT ACTED WITH RECKLESS DISREGARD FOR THE TRUTH. 
AND THIS QUESTION REMAINED OPEN THROUGHOUT THE TRIAL.  ALTHOUGH THE
COURT INITIALLY CONCLUDED THAT THE APPLICABILITY OF THE NEW YORK TIMES
RULE DEPENDED ON PETITIONER'S STATUS AS A PUBLIC FIGURE, THE COURT DID
NOT DECIDE THAT PETITIONER WAS NOT A PUBLIC FIGURE UNTIL ALL THE
EVIDENCE HAD BEEN PRESENTED.  THUS PETITIONER HAD EVERY OPPPORTUNITY,
INDEED INCENTIVE, TO PROVE "RECKLESS DISREGARD" IF HE COULD, AND HE IN
FACT ATTEMPTED TO DO SO.  THE RECORD SUPPORTS THE OBSERVATION BY THE
COURT OF APPEALS THAT PETITIONER "DID PRESENT EVIDENCE OF MALICE (BOTH
THE 'CONSTITUTIONAL'  AND THE 'ILL WILL' TYPE) TO SUPPORT HIS DAMAGE
CLAIM AND NO SUCH EVIDENCE WAS EXCLUDED . . . ."  471 F.2D 801, 807 N.
15 (1972). 

/3/  THE COURT STATED: 

"(PETITIONER'S) CONSIDERABLE STATURE AS A LAWYER, AUTHOR, LECTURER,
AND PARTICIPANT IN MATTERS OF PUBLIC IMPORT UNDERMINE THE VALIDITY OF
THE ASSUMPTION THAT HE IS NOT A 'PUBLIC FIGURE' AS THAT TERM HAS BEEN
USED BY THE PROGENY OF NEW YORK TIMES.  NEVERTHELESS, FOR PURPOSES OF
DECISION WE MAKE THAT ASSUMPTION AND TEST THE AVAILABLILITY OF THE
CLAIM OF PRIVILEGE BY THE SUBJECT MATTER OF THE ARTICLE."  ID., AT
805. 

/4/  IN THE COURT OF APPEALS PETITIONER MADE AN INGENIOUS BUT
UNAVAILING ATTEMPT TO SHOW THAT RESPONDENT'S DEFAMATORY CHARGE AGAINST
HIM CONCERNED NO ISSUE OF PUBLIC OR GENERAL INTEREST.  HE ASSERTED THAT
THE SUBJECT MATTER OF THE ARTICLE WAS THE MURDER TRIAL OF OFFICER
NUCCIO AND THAT HE DID NOT PARTICIPATE IN THAT PROCEEDING.  THEREFORE,
HE ARGUED, EVEN IF THE SUBJECT MATTER OF THE ARTICLE GENERALLY WERE
PROTECTED BY THE NEW YORK TIMES PRIVILEGE, UNDER THE OPINION OF THE
ROSENBLOOM PLURALITY, THE DEFAMATORY STATEMENTS ABOUT HIM WERE NOT. 
THE COURT OF APPEALS REJECTED THIS ARGUMENT.  IT NOTED THAT THE
ACCUSATIONS AGAINST PETITIONER PLAYED AN INTEGRAL PART IN RESPONDENT'S
GENERAL THESIS OF A NATIONWIDE CONSPIRACY TO HARASS THE POLICE: 

"(WE MAY ALSO ASSUME THAT THE ARTICLE'S BASIC THESIS IS FALSE. 
NEVERTHELESS, UNDER THE REASONING OF NEW YORK TIMES CO. V. SULLIVAN,
EVEN A FALSE STATEMENT OF FACT MADE IN SUPPORT OF A FALSE THESIS IS
PROTECTED UNLESS MADE WITH KNOWLEDGE OF ITS FALSITY OR WITH RECKLESS
DISREGARD OF ITS TRUTH OR FALSITY.  IT WOULD UNDERMINE THE RULE OF THAT
CASE TO PERMIT THE ACTUAL FALSITY OF A STATEMENT TO DETERMINE WHETHER
OR NOT ITS PUBLISHER IS ENTITLED TO THE BENEFIT OF THE RULE. 

"IF, THEREFORE, WE PUT TO ONE SIDE THE FALSE CHARACTER OF THE
ARTICLE AND TREAT IT AS THOUGH ITS CONTENTS WERE ENTIRELY TRUE, IT
CANNOT BE DENIED THAT THE COMMENTS ABOUT (PETITIONER) WERE INTEGRAL TO
ITS CENTRAL THESIS.  THEY MUST BE TESTED UNDER THE NEW YORK TIMES
STANDARD."  471 F.2D,AT 806. 

WE THINK THAT THE COURT OF APPEALS CORRECTLY REJECTED PETITIONER'S
ARGUMENT.  ITS ACCEPTANCE MIGHT LEAD TO ARBITRARY IMPOSITION OF
LIABILITY ON THE BASIS OF AN UNWISE DIFFERENTIATION AMONG KINDS OF
FACTUAL MISSTATEMENTS.  THE PRESENT CASE ILLUSTRATES THE POINT. 
RESPONDENT FALSELY PORTRAYED PETITIONER AS AN ARCHITECT OF THE CRIMINAL
PROSECUTION AYAINST NUCCIO.  ON ITS FACE THIS INACCURACY DOES NOT
APPEAR DEFAMATORY.  RESPONDENT ALSO FALSELY LABELED PETITIONER A
"LENINST" AND A "COMMUNIST-FRONTER."  THESE ACCUSATIONS ARE GENERALLY
CONSIDERED DEFAMATORY.  UNDER PETITIONER'S INTERPRETATION OF THE
"PUBLIC OR GENERAL INTEREST" TEST, RESPONDENT WOULD HAVE ENJOYED A
CONSTITUTIONAL PRIVILEGE TO PUBLISH DEFAMATORY FALSEHOOD IF PETITIONER
HAD IN FACT BEEN ASSOCIATED WITH THE CRIMINAL PROSECUTION.  BUT THIS
WOULD MEAN THAT THE SEEMINGLY INNOCUOUS MISTAKE OF CONFUSING
PETITIONER'S ROLE IN THE LITIGATION AGAINST OFFICER NUCCIO WOULD
DESTROY THE PRIVILEGE OTHERWISE AVAILABLE FOR CALLING PETITIONER A
COMMUNIST-FRONTER.  THUS RESPONDENT'S PRIVILEGE TO PUBLISH STATEMENTS
WHOSE CONTENT SHOULD HAVE ALERTED IT TO THE DANGER OF INJURY TO
REPUTATION WOULD HINGE ON THE ACCURACY OF STATEMENTS THAT CARRIED WITH
THEM NO SUCH WARNING.  ASSUMING THAT NONE OF THESE STATEMENTS WAS
PUBLISHED WITH KNOWLEDGE OF FALSITY OR WITH RECKLESS DISREGARD FOR THE
TRUTH, WE SEE NO REASON TO DISTINGUISH AMONG THE INACCURACIES. 

/5/  MR. JUSTICE DOUGLAS DID NOT PARTCIPATE IN THE CONSIDERATION OR
DECISION OF ROSENBLOOM. 

/6/  NEW YORK TIMES AND LATER CASES EXPLICATED THE MEANING OF THE
NEW STANDARD.  IN NEW YORK TIMES THE COURT HELD THAT UNDER THE
CIRCUMSTANCES THE NEWSPAPER'S FAILURE TO CHECK THE ACCURACY OF THE
ADVERTISEMENT AGAINST NEWS STORIES IN ITS OWN FILES DID NOT ESTABLISH
RECKLESS DISREGARD FOR THE TRUTH.  376 U.S.,AT 287 - 288.  IN ST. AMANT
V. THOMPSON, 390 U.S. 727 (1968), THE COURT EQUATED RECKLESS DISREGARD
OF THE TRUTH WITH SUBJECTIVE AWARENESS OF PROBABLE FALSITY:  "THERE
MUST BE SUFFICIENT EVIDENCE TO PERMIT THE CONCLUSION THAT THE DEFENDANT
IN FACT ENTERTAINED SERIOUS DOUBTS AS TO THE TRUTH OF HIS
PUBLICATION."  IN BECKLEY NEWSPAPERS CORP. V. HANKS, 389 U.S. 81
(1967), THE COURT EMPHASIZED THE DISTINCTION BETWEEN THE NEW YORK TIMES
TEST OF KNOWLEDGE OF FALSITY OR RECKLESS DISREGARD OF THE TRUTH AND
"ACTUAL MALICE" IN THE TRADITIONAL SENSE OF ILL-WILL.  GARRISON V.
LOUISIANA, 379 U.S. 64 (1964), MADE PLAIN THAT THE NEW STANDARD APPLIED
TO CRIMINAL LIBEL LAWS AS WELL AS TO CIVIL ACTIONS AND THAT IT GOVERNED
CRITICISM DIRECTED AT "ANYTHING WHICH MIGHT TOUCH ON AN OFFICIAL'S
FITNESS FOR OFFICE."  ID., AT 77.  FINALLY, IN ROSENBLATT V. BAER, 383
U.S. 75, 85 (1966), THE COURT STATED THAT "THE 'PUBLIC OFFICIAL'
DESIGNATION APPLIES AT THE VERY LEAST TO THOSE AMONG THE HIERARCHY OF
GOVERNMENT EMPLOYEES WHO HAVE, OR APPEAR TO THE PUBLIC TO HAVE,
SUBSTANTIAL RESPONSIBILITY FOR OR CONTROL OVER THE CONDUCT OF
GOVERNMENTAL AFFAIRS." 

IN TIME, INC. V. HILL, 385 U.S. 374 (1967), THE COURT APPLIED THE
NEW YORK TIMES STANDARD TO ACTIONS UNDER AN UNUSUAL STATE STATUTE.  THE
STATUTE DID NOT CREATE A CAUSE OF ACTION FOR LIBEL.  RATHER, IT
PROVIDED A REMEDY FOR UNWANTED PUBLICITY.  ALTHOUGH THE LAW ALLOWED
RECOVERY OF DAMAGES FOR HARM CAUSED BY EXPOSURE TO PUBLIC ATTENTION
RATHER THAN BY FACTUAL INACCURACIES, IT RECOGNIZED TRUTH AS A COMPLETE
DEFENSE.  THUS, NONDEFAMATORY FACTUAL ERRORS COULD RENDER A PUBLISHER
LIABLE FOR SOMETHING AKIN TO INVASION OF PRIVACY.  THE COURT RULED THAT
THE DEFENDANT IN SUCH AN ACTION COULD INVOKE THE NEW YORK TIMES
PRIVILEGE REGARDLESS OF THE FAME OR ANONYMITY OF THE PLAINTIFF. 
SPEAKING FOR THE COURT, MR. JUSTICE BRENNAN DECLARED THAT HIS HOLDING
WAS NOT AN EXTENSION OF NEW YORK TIMES BUT RATHER A PARALLEL LINE OF
REASONING APPLYING THAT STANDARD TO THIS DISCRETE CONTEXT: 

"THIS IS NEITHER A LIBEL ACTION BY A PRIVATE INDIVIDUAL NOR A
STATUTORY ACTION BY A PUBLIC OFFICIAL.  THEREFORE, ALTHOUGH THE FIRST
AMENDMENT PRINCIPLES PRONOUNCED IN NEW YORK TIMES GUIDE OUR CONCLUSION,
WE REACH THAT CONCLUSION ONLY BY APPLYING THESE PRINCIPLES IN THIS
DISCRETE CONTEXT.  IT THEREFORE SERVES NO PURPOSE TO DISTINGUISH THE
FACTS HERE FROM THOSE IN NEW YORK TIMES.  WERE THIS A LIBEL ACTION, THE
DISTINCTION WHICH HAS BEEN SUGGESTED BETWEEN THE RELATIVE OPPORTUNITIES
OF THE PUBLIC OFFIAL AND THE PRIVATE INDIVIDUAL TO REBUT DEFAMATORY
CHARGES MIGHT BE GERMANE.  AND THE ADDITIONAL STATE INTEREST IN THE
PROTECTION OF THE INDIVIDUAL AGAINST DAMAGE TO HIS REPUTATION WOULD BE
INVOLVED.  CF. ROSENBLATT V. BAER, 383 U.S. 75, 91 (STEWART, J.,
CONCURRING)."  385 U.S.,AT 390 - 391. 

/7/ PROFESSOR KALVEN ONCE INTRODUCED A DISCUSSION OF THESE CASES
WITH THE APT HEADING, "YOU CAN'T TELL THE PLAYERS WITHOUT A SCORE
CARD."  KALVEN, THE REASONABLE MAN AND THE FIRST AMENDMENT:  HILL,
BUTTS, AND WALKER, 1967 SUP.CT.REV.  267, 275.  ONLY THREE OTHER
JUSTICES JOINED MR. JUSTICE HARLAN'S ANALYSIS OF THE ISSUES INVOLVED. 
IN HIS CONCURRING OPINION, MR. CHIEF JUSTICE WARREN STATED THE
PRINCIPLE FOR WHICH THESE CASES STAND--THAT THE NEW YORK TIMES TEST
REACHES BOTH PUBLIC FIGURES AND PUBLIC OFFICIALS.  MR. JUSTICE BRENNAN
AND MR. JUSTICE WHITE AGREED WITH THE CHIEF JUSTICE ON THAT QUESTION. 
MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS REITERATED THEIR VIEW THAT
PUBLISHERS SHOULD HAVE AN ABSOLUTE IMMUNITY FROM LIABILITY FOR
DEFAMATION, BUT THEY ACQUIESCED IN THE CHIEF JUSTICE'S REASONING IN
ORDER TO ENABLE A MAJORITY OF THE JUSTICES TO AGREE ON THE QUESTION OF
THE APPROPRIATE CONSTITUTIONAL PRIVILEGE FOR DEFAMATION OF PUBLIC
FIGURES. 

/8/  AS THOMAS JEFFERSON MADE THE POINT IN HIS FIRST INAUGURAL
ADDRESS:  "IF THERE BE ANY AMONG US WHO WOULD WISH TO DISSOLVE THIS
UNION OR CHANGE ITS REPUBLICAN FORM, LET THEM STAND UNDISTURBED AS
MONUMENTS OF THE SAFETY WITH WHICH ERROR OF OPINION MAY BE TOLERATED
WHERE REASON IS LEFT FREE TO COMBAT IT." 

/9/  OF COURSE, AN OPPORTUNITY FOR REBUTTAL SELDOM SUFFICES TO UNDO
HARM OF DEFAMATORY FALSEHOOD.  INDEED, THE LAW OF DEFAMATION IS ROOTED
IN OUR EXPERIENCE THAT THE TRUTH RARELY CATCHES UP WITH A LIE.  BUT THE
FACT THAT THE SELF-HELP REMEDY OF REBUTTAL, STANDING ALONE, IS
INADEQUATE TO ITS TASK DOES NOT MEAN THAT IT IS IRRELEVANT TO OUR
INQUIRY. 

/10/  OUR CAVEAT AGAINST STRICT LIABILITY IS THE PRIME TARGET OF MR.
JUSTICE WHITE'S DISSENT.  HE WOULD HOLD THAT A PUBLISHER OR BROADCASTER
MAY BE REQUIRED TO PROVE THE TRUTH OF A DEFAMATORY STATEMENT CONCERNING
A PRIVATE INDIVIDUAL AND, FAILING SUCH PROOF, THAT THE PUBLISHER OR
BROADCASTER MAY BE HELD LIABLE FOR DEFAMATION EVEN THOUGH HE TOOK EVERY
CONCEIVABLE PRECAUTION TO ENSURE THE ACCURACY OF THE OFFENDING
STATEMENT PRIOR TO ITS DISSEMINATION.  POST, AT 388 - 392.  IN MR.
JUSTICE WHITE'S VIEW, ONE WHO PUBLISHES A STATEMENT THAT LATER TURNS
OUT TO BE INACCURATE CAN NEVER BE "WITHOUT FAULT" IN ANY MEANINGFUL
SENSE, FOR "(IT IS HE WHO CIRCULATED A FALSEHOOD THAT HE WAS NOT
REQUIRED TO PUBLISH."  POST, AT 392 (EMPHASIS ADDED).     MR. JUSTICE
WHITE CHARACTERIZES NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254
(1964), AS SIMPLY A CASE OF SEDITIOUS LIBEL.  POST, AT 387.  BUT THAT
RATIONALE IS CERTAINLY INAPPLICABLE TO CURTIS PUBLISHING CO. V. BUTTS,
388 U.S. 130 (1967), WHERE MR. JUSTICE WHITE JOINED FOUR OTHER MEMBERS
OF THE COURT TO EXTEND THE KNOWING-OR-RECKLESS-FALSITY STANDARD TO
MEDIA DEFAMATION OF PERSONS IDENTIFIED AS PUBLIC FIGURES BUT NOT
CONNECTED WITH THE GOVERNMENT.  MR. JUSTICE WHITE NOW SUGGESTS THAT HE
WOULD ABIDE BY THAT VOTE, POST, AT 398, BUT THE FULL THRUST OF HIS
DISSENT--AS WE READ IT--CONTRADICTS THAT SUGGESTION.  FINALLY, IN
ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29, 57 (1971), MR. JUSTICE
WHITE VOTED TO APPLY THE NEW YORK TIMES PRIVILEGE TO MEDIA DEFAMATION
OF AN INDIVIDUAL WHO WAS NEITHER A PUBLIC OFFICIAL NOR A PUBLIC
FIGURE.  HIS OPINION STATES THAT THE KNOWING-OR-RECKLESS-FALSITY
STANDARD SHOULD APPLY TO MEDIA "COMMENT UPON THE OFFICAL ACTIONS OF
PUBLIC SERVANTS," ID., AT 62, INCLUDING DEFAMATORY FALSEHOOD ABOUT A
PERSON ARRESTED BY THE POLICE.  IF ADOPTED BY THE COURT, THIS
CONCLUSION WOULD SIGNIFICANTLY EXTEND THE NEW YORK TIMES PRIVILEGE. 

MR. JUSTICE WHITE ASSERTS THAT OUR DECISION TODAY "TRIVIALIZES AND
DENIGRATES THE INTEREST IN REPUTATION," MIAMI HERALD PUBLISHING CO. V.
TORNILLO, ANTE, AT 262 (CONCURRING OPINION), THAT IT "SCUTTLES) THE
LIBEL LAWS OF THE STATES IN . . . WHOLESALE FASHION" AND RENDERS
ORDINARY CITIZENS "POWERLESS TO PROTECT THEMSELVES."  POST, AT 370.  IN
LIGHT OF THE PROGRESSIVE EXTENSION OF THE KNOWING-OR-RECKLESS-FALSITY
REQUIREMENT DETAILED IN THE PRECEDING PARAGRAPH, ONE MIGHT HAVE VIEWED
TODAY'S DECISION ALLOWING RECOVERY UNDER ANY STANDARD SAVE STRICT
LIABILITY AS A MORE GENEROUS ACCOMMODATION OF THE STATE INTEREST IN
COMPREHENSIVE REPUTATIONAL INJURY TO PRIVATE INDIVIDUALS THAN THE LAW
PRESENTLY AFFORDS. 

/11/  CURTIS PUBLISHING CO. V. BUTTS, SUPRA, AT 155. 

MR. JUSTICE BLACKMUN, CONCURRING. 

I JOINED MR. JUSTICE BRENNAN'S OPINION FOR THE PLURALITY IN
ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29 (1971).  I DID SO BECAUSE I
CONCLUDED THAT, GIVEN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254
(1964), AND ITS PROGENY (NOTED BY THE COURT, ANTE, AT 334 - 336, N. 6),
AS WELL AS CURTIS PUBLISHING CO. V. BUTTS AND ASSOCIATED PRESS V.
WALKER, 388 U.S. 130 (1967), THE STEP TAKEN IN ROSENBLOOM, EXTENDING
THE NEW YORK TIMES DOCTRINE TO AN EVENT OF PUBLIC OR GENERAL INTEREST,
WAS LOGICAL AND INEVITABLE.  A MAJORITY OF THE COURT EVIDENTLY THOUGHT
OTHERWISE, AS IS PARTICULARLY EVIDENCED BY MR. JUSTICE WHITE'S SEPARATE
CONCURRING OPINION THERE AND BY THE RESPECTIVE DISSENTING OPINIONS OF
MR. JUSTICE HARLAN AND OF MR. JUSTICE MARSHALL JOINED BY MR. JUSTICE
STEWART. 

THE COURT TODAY REFUSES TO APPLY NEW YORK TIMES TO THE PRIVATE
INDIVIDUAL, AS CONTRASTED WITH THE PUBLIC OFFICIAL AND THE PUBLIC
FIGURE.  IT THUS WITHDRAWS TO THE FACTUAL LIMITS OF THE PRE-ROSENBLOOM
CASES.  IT THEREBY FIXES THE OUTER BOUNDARY OF THE NEW YORK TIMES
DOCTRINE AND SAYS THAT BEYOND THAT BOUNDARY, A STATE IS FREE TO DEFINE
FOR ITSELF THE APPROPRIATE STANDARD OF MEDIA LIABILITY SO LONG AS IT
DOES NOT IMPOSE LIABILITY WITHOUT FAULT.  AS MY JOINDER IN ROSENBLOOM'S
PLURALITY OPINION WOULD INTIMATE, I SENSE SOME ILLOGIC IN THIS. 

THE COURT, HOWEVER, SEEKS TODAY TO STRIKE A BALANCE BETWEEN
COMPETING VALUES WHERE NECESSARILY UNCERTAIN ASSUMPTIONS ABOUT HUMAN
BEHAVIOR COLOR THE RESULT.  ALTHOUGH THE COURT'S OPINION IN THE PRESENT
CASE DEPARTS FROM THE RATIONALE OF THE ROSENBLOOM PLURALITY, IN THAT
THE COURT NOW CONDITIONS A LIBEL ACTION BY A PRIVATE PERSON UPON A
SHOWING OF NEGLIGENCE, AS CONTRASTED WITH A SHOWING OF WILLFUL OR
RECKLESS DISREGARD, I AM WILLING TO JOIN, AND DO JOIN, THE COURT'S
OPINION AND ITS JUDGMENT FOR TWO REASONS: 

1.  BY REMOVING THE SPECTERS OF PRESUMED AND PUNITIVE DAMAGES IN THE
ABSENCE OF NE YORK TIMES MALICE, THE COURT ELIMINATES SIGNIFICANT AND
POWERFUL MOTIVES FOR SELF-CENSORSHIP THAT OTHERWISE ARE PRESENT IN THE
TRADITIONAL LIBEL ACTION.  BY SO DOING, THE COURT LEAVES WHAT SHOULD
PROVE TO BE SUFFICIENT AND ADEQUATE BREATHING SPACE FOR A VIGOROUS
PRESS.  WHAT THE COURT HAS DONE, I BELIEVE, WILL HAVE LITTLE, IF ANY,
PRACTICAL EFFECT ON THE FUNCTIONING OF RESPONSIBLE JOURNALISM. 

2.  THE COURT WAS SADLY FRACTIONATED IN ROSENBLOOM.  A RESULT OF
THAT KIND INEVITABLY LEADS TO UNCERTAINTY.  I FEEL THAT IT IS OF
PROFOUND IMPORTANCE FOR THE COURT TO COME TO REST IN THE DEFAMATION
AREA AND TO HAVE A CLEARLY DEFINED MAJORITY POSITION THAT ELIMINATES
THE UNSURENESS ENGENDERED BY ROSENBLOOM'S DIVERSITY.  IF MY VOTE WERE
NOT NEEDED TO CREATE A MAJORITY, I WOULD ADHERE TO MY PRIOR VIEW.  A
DEFINITIVE RULING, HOWEVER, IS PARAMOUNT.  SEE CURTIS PUBLISHING CO. V.
BUTTS, 388 U.S., AT 170 (BLACK, J., CONCURRING); TIME, INC. V. HILL,
385 U.S. 374, 398 (1967) (BLACK, J., CONCURRING); UNITED STATES V.
VUITCH, 402 U.S. 62, 97 (1971) (SEPARATE STATEMENT). 

FOR THESE REASONS, I JOIN THE OPINION AND THE JUDGMENT OF THE
COURT. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

THE DOCTRINES OF THE LAW OF DEFAMATION HAVE HAD A GRADUAL EVOLUTION
PRIMARILY IN THE STATE COURTS.  IN NEW YORK TIMES CO. V. SULLIVAN, 376
U.S. 254 (1964), AND ITS PROGENY THIS COURT ENTERED THIS FIELD. 

AGREEMENT OR DISAGREEMENT WITH THE LAW AS IT HAS EVOLVED TO THIS
TIME DOES NOT ALTER THE FACT THAT IT HAS BEEN ORDERLY DEVELOPMENT WITH
A CONSISTENT BASIC RATIONALE.  IN TODAY'S OPINION THE COURT ABANDONS
THE TRADITIONAL THREAD SO FAR AS THE ORDINARY PRIVATE CITIZEN IS
CONCERNED AND INTRODUCES THE CONCEPT THAT THE MEDIA WILL BE LIABLE FOR
NEGLIGENCE IN PUBLISHING DEFAMATORY STATEMENTS WITH RESPECT TO SUCH
PERSONS.  ALTHOUGH I AGREE WITH MUCH OF WHAT MR. JUSTICE WHITE STATES,
I DO NOT READ THE COURT'S NEW DOCTRINAL APPROACH IN QUITE THE WAY HE
DOES.  I AM FRANK TO SAY I DO NOT KNOW THE PARAMETERS OF A "NEGLIGENCE"
DOCTRINE AS APPLIED TO THE NEWS MEDIA.  CONCEIVABLY THIS NEW DOCTRINE
COULD INHIBIT SOME EDITORS, AS THE DISSENTS OF MR. JUSTICE DOUGLAS AND
MR. JUSTICE BRENNAN SUGGEST.  BUT I WOULD PREFER TO ALLOW THIS AREA OF
LAW TO CONTINUE TO EVOLVE AS IT HAS UP TO NOW WITH RESPECT TO PRIVATE
CITIZENS RATHER THAN EMBARK ON A NEW DOCTRINAL THEORY WHICH HAS NO
JURISPRUDENTIAL ANCESTRY. 

THE PETITIONER HERE WAS PERFORMING A PROFESSIONAL REPRESENTATIVE
ROLE AS AN ADVOCATE IN THE HIGHEST TRADITION OF THE LAW, AND UNDER THAT
TRADITION THE ADVOCATE IS NOT TO BE INVIDIOUSLY IDENTIFIED WITH HIS
CLIENT.  THE IMPORTANT PUBLIC POLICY WHICH UNDERLIES THIS TRADITION-
THE RIGHT TO COUNSEL--WOULD BE GRAVELY JEOPARDIZED IF EVERY LAWYER WHO
TAKES AN "UNPOPULAR" CASE, CIVIL OR CRIMINAL, WOULD AUTOMATICALLY
BECOME FAIR GAME FOR IRRESPONSIBLE REPORTERS AND EDITORS WHO MIGHT, FOR
EXAMPLE, DESCRIBE THE LAWYER AS A "MOB MOUTHPIECE" FOR REPRESENTING A
CLIENT WITH A SERIOUS PRIOR CRIMINAL RECORD, OR AS AN "AMBULANCE
CHASER" FOR REPRESENTING A CLAIMANT IN A PERSONAL INJURY ACTION. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND FOR
REINSTATEMENT OF THE VERDICT OF THE JURY AND THE ENTRY OF AN
APPROPRIATE JUDGMENT ON THAT VERDICT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE COURT DESCRIBES THIS CASE AS A RETURN TO THE STRUGGLE OF
"DEFINING) THE PROPER ACCOMMODATION BETWEEN THE LAW OF DEFAMATION AND
THE FREEDOMS OF SPEECH AND PRESS PROTECTED BY THE FIRST AMENDMENT."  IT
IS INDEED A STRUGGLE, ONCE DESCRIBED BY MR. JUSTICE BLACK AS "THE SAME
QUAGMIRE" IN WHICH THE COURT "IS NOW HELPLESSLY STRUGGLING IN THE FIELD
OF OBSCENITY."  CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 171
(CONCURRING OPINION).  I WOULD SUGGEST THAT THE STRUGGLE IS A QUITE
HOPELESS ONE, FOR, IN LIGHT OF THE COMMAND OF THE FIRST AMENDMENT, NO
"ACCOMMODATION" OF ITS FREEDOMS CAN BE "PROPER" EXCEPT THOSE MADE BY
THE FRAMERS THEMSELVES. 

UNLIKE THE RIGHT OF PRIVACY WHICH, BY THE TERMS OF THE FOURTH
AMENDMENT, MUST BE ACCOMMODATED WITH REASONABLE SEARCHES AND SEIZURES
AND WARRANTS ISSUED BY MAGISTRATES, THE RIGHTS OF FREE SPEECH AND OF A
FREE PRESS WERE PROTECTED BY THE FRAMERS IN VERBIAGE WHOSE PROSCRIPTION
SEEMS CLEAR.  I HAVE STATED BEFORE MY VIEW THAT THE FIRST AMENDMENT
WOULD BAR CONGRESS FROM PASSING ANY LIBEL LAW.  /1/  THIS WAS THE VIEW
HELD BY THOMAS JEFFERSON /2/  AND IT IS ONE CONGRESS HAS NEVER
CHALLENGED THROUGH ENACTION OF A CIVIL LIBEL STATUTE.  THE SOLE
CONGRESSIONAL ATTEMPT AT THIS VARIETY OF FIRST AMENDMENT MUZZLE WAS IN
THE SEDITION ACT OF 1798--A CRIMINAL LIBEL ACT NEVER TESTED IN THIS
COURT AND ONE WHICH EXPIRED BY ITS TERMS THREE YEARS AFTER ENACTMENT. 
AS PRESIDENT, THOMAS JEFFERSON PARDONED THOSE WHO WERE CONVICTED UNDER
THE ACT AND FINES LEVIED IN ITS PROSECUTION WERE REPAID BY ACT OF
CONGRESS.  /3/  THE GENERAL CONSENSUS WAS THAT THE ACT CONSTITUTED A
REGRETTABLE LEGISLATIVE EXERCISE PLAINLY IN VIOLATION OF THE FIRST
AMENDMENT.  /4/ 

WITH THE FIRST AMENDMENT MADE APPLICABLE TO THE STATES THROUGH THE
FOURTEENTH, /5/  I DO NOT SEE HOW STATES HAVE ANY MORE ABILITY TO
"ACCOMMODATE"  FREEDOMS OF SPEECH OR OF THE PRESS THAN DOES CONGRESS. 
THIS IS TRUE WHETHER THE FORM OF THE ACCOMMODATION IS CIVIL OR CRIMINAL
SINCE "(WHAT A STATE MAY NOT CONSTITUTIONALLY BRING ABOUT BY MEANS OF A
CRIMINAL STATUTE IS LIKEWISE BEYOND THE REACH OF ITS CIVIL LAW OF
LIBEL."  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 277.  LIKE
CONGRESS, STATES ARE WITHOUT POWER "TO USE A CIVIL LIBEL LAW OR ANY
OTHER LAW TO IMPOSE DAMAGES FOR MERELY DISCUSSING PUBLIC AFFAIRS." 
ID., AT 296 (BLACK, J., CONCURRING).  /6/ 

CONTINUED RECOGNITION OF THE POSSIBILITY OF STATE LIBEL SUITS FOR
PUBLIC DISCUSSION OF PUBLIC ISSUES LEAVES THE FREEDOM OF SPEECH HONORED
BY THE FOURTEENTH AMENDMENT A DILUTED VERSION OF FIRST AMENDMENT
PROTECTION.  THIS VIEW IS ONLY POSSIBLE IF ONE ACCEPTS THE POSITION
THAT THE FIRST AMENDMENT IS APPLICABLE TO THE STATES ONLY THROUGH THE
DUE PROCESS CLAUSE OF THE FOURTEENTH, DUE PROCESS FREEDOM OF SPEECH
BEING ONLY THAT FREEDOM WHICH THIS COURT MIGHT DEEM TO BE "IMPLICIT IN
THE CONCEPT OF ORDERED LIBERTY."  /7/  BUT THE COURT FREQUENTLY HAS
RESTED STATE FREE SPEECH AND FREE PRESS DECISIONS ON THE FOURTEENTH
AMENDMENT GENERALLY.  /8/  RATHER THAN ON THE DUE PROCESS CLAUSE
ALONE.  THE FOURTEENTH AMENDMENT SPEAKS NOT ONLY OF DUE PROCESS BUT
ALSO OF "PRIVILEGES AND IMMUNITIES" OF UNITED STATES CITIZENSHIP.  I
CAN CONCEIVE OF NO PRIVILEGE OR IMMUNITY WITH A HIGHER CLAIM TO
RECOGNITION AGAINST STATE ABRIDGMENT THAN THE FREEDOMS OF SPEECH AND OF
THE PRESS.  IN OUR FEDERAL SYSTEM WE ARE ALL SUBJECT TO TWO
GOVERNMENTAL REGIMES, AND FREEDOMS OF SPEECH AND OF THE PRESS PROTECTED
AGAINST THE INFRINGEMENT OF ONLY ONE ARE QUITE ILLUSORY.  THE IDENTITY
OF THE OPPRESSOR IS, I WOULD THINK, A MATTER OF RELATIVE INDIFFERENCE
TO THE OPPRESSED. 

THERE CAN BE NO DOUBT THAT A STATE IMPINGES UPON FREE AND OPEN
DISCUSSION WHEN IT SANCTIONS THE IMPOSITION OF DAMAGES FOR SUCH
DISCUSSION THROUGH ITS CIVIL LIBEL LAWS.  DISCUSSION OF PUBLIC AFFAIRS
IS OFTEN MARKED BY HIGHLY CHARGED EMOTIONS, AND JURYMEN, NOT UNLIKE US
ALL, ARE SUBJECT TO THOSE EMOTIONS.  IT IS INDEED THIS VERY TYPE OF
SPEECH WHICH IS THE REASON FOR THE FIRST AMENDMENT SINCE SPEECH WHICH
AROUSES LITTLE EMOTION IS LITTLE IN NEED OF PROTECTION.  THE VEHICLE
FOR PUBLICATION IN THIS CASE WAS THE AMERICAN OPINION, A MOST
CONTROVERSIAL PERIODICAL, WHICH DISSEMINATES THE VIEWS OF THE JOHN
BIRCH SOCIETY, AN ORGANIZATION WHICH MANY DEEM TO BE QUITE OFFENSIVE. 
THE SUBJECT MATTER INVOLVED "COMMUNIST PLOTS," "CONSPIRACIES AGAINST
LAW ENFORCEMENT AGENCIES," AND THE KILLING OF A PRIVATE CITIZEN BY THE
POLICE.  WITH ANY SUCH AMALGAM OF CONTROVERSIAL ELEMENTS PRESSING UPON
THE JURY, A JURY DETERMINATION, UNPREDICTABLE IN THE MOST NEUTRAL
CIRCUMSTANCES, BECOMES FOR THOSE WHO VENTURE TO DISCUSS HEATED ISSUES,
A VIRTUAL ROLL OF THE DICE SEPARATING THEM FROM LIABILITY FOR OFTEN
MASSIVE CLAIMS OF DAMAGE. 

IT IS ONLY THE HARDY PUBLISHER WHO WILL ENGAGE IN DISCUSSION IN THE
FACE OF SUCH RISK, AND THE COURT'S PREOCCUPATION WITH PROLIFERATING
STANDARDS IN THE AREA OF LIBEL INCREASES THE RISKS.  IT MATTERS LITTLE
WHETHER THE STANDARD BE ARTICULATED AS "MALICE" OR "RECKLESS DISREGARD
OF THE TRUTH" OR "NEGLIGENCE," FOR JURY DETERMINATIONS BY ANY OF THOSE
CRITERIA ARE VIRTUALLY UNREVIEWABLE.  THIS COURT, IN ITS CONTINUING
DELINEATION OF VARIEGATED MANTLES OF FIRST AMENDMENT PROTECTION, IS,
LIKE THE POTENTIAL PUBLISHER, LEFT WITH ONLY SPECULATION ON HOW JURY
FINDINGS WERE INFLUENCED BY THE EFFECT THE SUBJECT MATTER OF THE
PUBLICATION HAD UPON THE MINDS AND VISCERA OF THE JURY.  THE STANDARD
ANNOUNCED TODAY LEAVES THE STATES FREE TO "DEFINE FOR THEMSELVES THE
APPROPRIATE STANDARD OF LIABILITY FOR A PUBLISHER OR BRAODCASTER" IN
THE CIRCUMSTANCES OF THIS CASE.  THIS OF COURSE LEAVES THE SIMPLE
NEGLIGENCE STANDARD AS AN OPTION, WITH THE JURY FREE TO IMPOSE DAMAGES
UPON A FINDING THAT THE PUBLISHER FAILED TO ACT AS "A REASONABLE MAN." 
WITH SUCH CONTINUED EROSION OF FIRST AMENDMENT PROTECTION, I FEAR THAT
IT MAY WELL BE THE REASONABLE MAN WHO REFRAINS FROM SPEAKING. 

SINCE IN MY VIEW THE FIRST AND FOURTEENTH AMENDMENTS PROHIBIT THE
IMPOSITION OF DAMAGES UPON RESPONDENT FOR THIS DISCUSSION OF PUBLIC
AFFAIRS, I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  SEE, E.G., ROSENBLATT V. BAER, 383 U.S. 75, 90 (CONCURRING). 

/2/ IN 1798 JEFFERSON STATED: 

"(THE FIRST AMENDMENT) THEREBY GUARDS) IN THE SAME SENTENCE, AND
UNDER THE SAME WORDS, THE FREEDOM OF RELIGION, OF SPEECH, AND OF THE
PRESS:  INSOMUCH, THAT WHATEVER VIOLATES EITHER, THROWS DOWN THE
SANCTUARY WHICH COVERS THE OTHERS, AND THAT LIBELS, FALSEHOOD, AND
DEFAMATION, EQUALLY WITH HERESY AND FALSE RELIGION, ARE WITHHELD FROM
THE COGNIZANCE OF FEDERAL TRIBUNALS . . . ."  8 THE WORKS OF THOMAS
JEFFERSON 464 - 465 (FORD ED. 1904) (EMPHASIS ADDED).     /3/  SEE,
E.G., ACT OF JULY 4, 1840, C. 45, 6 STAT. 802, ACCOMPANIED BY H. R.
REP. NO. 86, 26TH CONG., 1ST SESS. (1840). 

/4/  SENATOR CALHOUN IN REPORTING TO CONGRESS ASSUMED THE INVALIDITY
OF THE ACT TO BE A MATTER "WHICH NO ONE NOW DOUBTS."  REPORT WITH
SENATE BILL NO. 122, S. DOC. NO. 118, 24TH CONG., 1ST SESS., 3 (1836). 

/5/  SEE STROMBERG V. CALIFORNIA, 283 U.S. 359, 368 - 369. 

/6/  SINCE THIS CASE INVOLVES A DISCUSSION OF PUBLIC AFFAIRS, I NEED
NOT DECIDE AT THIS POINT WHETHER THE FIRST AMENDMENT PROHIBITS ALL
LIBEL ACTIONS.  "AN UNCONDITIONAL RIGHT TO SAY WHAT ONE PLEASES ABOUT
PUBLIC AFFAIRS IS WHAT I CONSIDER TO BE THE MINIMUM GUARANTEE OF THE
FIRST AMENDMENT."  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 297
(BLACK, J., CONCURRING) (EMPHASIS ADDED).  BUT "PUBLIC AFFAIRS"
INCLUDES A GREAT DEAL MORE THAN MERELY POLITICAL AFFAIRS.  MATTERS OF
SCIENCE, ECONOMICS, BUSINESS, ART, LITERATURE, ETC., ARE ALL MATTERS OF
INTEREST TO THE GENERAL PUBLIC.  INDEED, ANY MATTER OF SUFFICIENT
GENERAL INTEREST TO PROMPT MEDIA COVERAGE MAY BE SAID TO BE A PUBLIC
AFFAIR.  CERTAINLY POLICE KILLINGS, "COMMUNIST CONSPIRACIES," AND THE
LIKE QUALIFY. 

A MORE REGRESSIVE VIEW OF FREE SPEECH HAS SURFACED BUT IT HAS THUS
FAR GAINED NO JUDICIAL ACCEPTANCE.  SOLICITOR GENERAL BORK HAS STATED
THAT: 

"CONSTITUIONAL PROTECTION SHOULD BE ACCORDED ONLY TO SPEECH THAT IS
EXPLICITLY POLITICAL.  THERE IS NO BASIS FOR JUDICAL INTERVENTION TO
PROTECT ANY OTHER FORM OF EXPRESSION, BE IT SCIENTIFIC, LITERARY OR
THAT VARIETY OF EXPRESSION WE CALL OBSCENE OR PORNOGRAPHIC.  MOREOVER,
WITHIN THAT CATEGORY OF SPEECH WE ORDINARLY CALL POLITICAL, THERE SOULD
BE NO CONSTITUTIONAL OBSTRUCTION TO LAWS MAKING CRIMINAL ANY SPEECH
THAT ADVOCATES FORCIBLE OVERTHROW OF THE GOVERNMENT OR THE VIOLATION OF
ANY LAW."  BORK, NEUTRAL PRINCIPLES AND SOME FIRST AMENDMENT PROBLEMS,
47 IND. L. J. 1, 20 (1971). 

ACCORDING TO THIS VIEW, CONGRESS, UPON FINDING A PAINTING
AESTHETICALLY DISPLEASING OR A NOVEL POORLY WRITTEN OR A REVOLUTIONARY
NEW SCIENTIFIC THEORY UNSOUND COULD CONSTITUTIONALLY PROHIBIT
EXHIBITION OF THE PAINTING, DISTRIBUTION OF THE BOOK OR DISCUSSION OF
THE THEORY.  CONGRESS MIGHT ALSO PROSCRIBE THE ADVOCACY OF THE
VIOLATION OF ANY LAW, APPARENTLY WITHOUT REGARD TO THE LAW'S
CONSTITUTIONALITY.  THUS, WERE CONGRESS TO PASS A BLATANTLY INVALID LAW
SUCH AS ONE PROHIBITING NEWSPAPER EDITORIALS CRITICAL OF THE
GOVERNMENT, A PUBLISHER MIGHT BE PUNISHED FOR ADVOCATING ITS
VIOLATION.  SIMILARLY, THE LATE DR. MARTIN LUTHER KING, JR., COULD HAVE
BEEN PUNISHED FOR ADVISING BLACKS TO PEACEFULLY SIT IN THE FRONT OF
BUSES OR TO ASK FOR SERVICE IN RESTAURANTS SEGREGATED BY LAW. 

/7/ SEE PALKO V. CONNECTICUT, 302 U.S. 319, 325.  AS MR. JUSTICE
BLACK HAS NOTED, BY THIS VIEW THE TEST BECOMES "WHETHER THE GOVERNMENT
HAS AN INTEREST IN ABRIDGING THE RIGHT INVOLVED AND, IF SO, WHETHER
THAT INTEREST IS OF SUFFICIENT IMPORTANCE, IN THE OPINION OF A MAJORITY
OF THE SUPREME COURT, TO JUSTIFY THE GOVERNMENT'S ACTION IN DOING SO.
SUCH A DOCTRINE CAN BE USED TO JUSTIFY ALMOST ANY GOVERNMENT
SUPPRESSION OF FIRST AMENDMENT FREEDOMS.  AS I HAVE STATED MANY TIMES
BEFORE, I CANNOT SUBSCRIBE TO THIS DOCTRINE BECAUSE I BELIEVE THAT THE
FIRST AMENDMENT'S UNEQUIVOCAL COMMAND THAT THERE SHALL BE NO
ABRIDGEMENT OF THE RIGHTS OF FREE SPEECH SHOWS THAT THE MEN WHO DRAFTED
OUR BILL OF RIGHTS DID ALL THE 'BALANCING' THAT WAS TO BE DONE IN THIS
FIELD."  H. BLACK, A CONSTITUTIONAL FAITH 52 (1969). 

/8/  SEE E.G., BRIDGES V. CALIFORNIA, 314 U.S. 252, 263 N. 6 (BLACK,
J.,); MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 108 (DOUGLAS, J.); SAIA V.
NEW YORK, 334 U.S. 558, 560 (DOUGLAS, J.); TALLEY V. CALIFORNIA, 362
U.S. 60, 62 (BLACK, J.); DEGREGORY V. ATTORNEY GENERAL OF NEW
HAMPSHIRE, 383 U.S. 825, 828 (DOUGLAS, J.); ELFBRANDT V. RUSSELL, 384
U.S. 11, 18 (DOUGLAS, J.); MILLS V. ALABAMA, 384 U.S. 214, 218 (BLACK,
J.); MINE WORKERS V. ILLINOIS BAR ASSN., 389 U.S. 217, 221 - 222, AND
N. 4 (BLACK, J.). 

MR. JUSTICE BRENNAN, DISSENTING. 

I AGREE WITH THE CONCLUSION, EXPRESSED IN PART V OF THE COURT'S
OPINION, THAT, AT THE TIME OF PUBLICATION OF RESPONDENT'S ARTICLE,
PETITIONER COULD NOT PROPERLY HAVE BEEN VIEWED AS EITHER A "PUBLIC
OFFICIAL" OR "PUBLIC FIGURE"; INSTEAD, RESPONDENT'S ARTICLE, DEALING
WITH AN ALLEGED CONSPIRACY TO DISCREDIT LOCAL POLICE FORCES, CONCERNED
PETITIONER'S PURPORTED INVOLVEMENT IN "AN EVENT OF PUBLIC OR GENERAL
INTEREST."  ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29, 31 - 32
(1971); SEE ANTE, AT 331 - 332, N. 4.  I CANNOT AGREE, HOWEVER, THAT
FREE AND ROBUST DEBATE--SO ESSENTIAL TO THE PROPER FUNCTIONING OF OUR
SYSTEM OF GOVERNMENT--IS PERMITTED ADEQUTE "BREATHING SPACE," NAACP V.
BUTTON, 371 U.S. 415, 433 (1963), WHEN, AS THE COURT HOLDS, THE STATES
MAY IMPOSE ALL BUT STRICT LIABILITY FOR DEFAMATION IF THE DEFAMED PARTY
IS A PRIVATE PERSON AND "THE SUBSTANCE OF THE DEFAMATORY STATEMENT
MAKES SUBSTANTIAL DANGER TO REPUTATION APPARENT.'"  ANTE, AT 348.  /1/
I ADHERE TO MY VIEW EXPRESSED IN ROSENBLOOM V. METROMEDIA, INC., SUPRA,
THAT WE STRIKE THE PROPER ACCOMMODATION BETWEEN AVOIDANCE OF MEDIA SELF
CENSORSHIP AND PROTECTION OF INDIVIDUAL REPUTATIONS ONLY WHEN WE
REQUIRE STATES TO APPLY THE NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254 (1964), KNOWING-OR-RECKLESS-FALSITY STANDARD IN CIVIL LIBEL ACTIONS
CONCERNING MEDIA REPORTS OF THE INVOLVEMENT OF PRIVATE INDIVIDUALS IN
EVENTS OF PUBLIC OR GENERAL INTEREST. 

THE COURT DOES NOT HOLD THAT FIRST AMENDMENT GUARANTEES DO NOT
EXTEND TO SPEECH CONCERNING PRIVATE PERSONS' INVOLVEMENT IN EVENTS OF
PUBLIC OR GENERAL INTEREST.  IT RECOGNIZES THAT SELF-GOVERANCE IN THIS
COUNTRY PERSEVERES BECAUSE OF OUR "PROFOUND NATIONAL COMMITMENT TO THE
PRINCIPLE THAT DEBATE ON PUBLIC ISSUES SHOULD BE UNINHIBITED, ROBUST,
AND WIDE-OPEN."  ID., AT 270 (EMPHASIS ADDED).  THUS, GUARANTEES OF
FREE SPEECH AND PRESS NECESSARILY REACH "FAR MORE THAN KNOWLEDGE AND
DEBATE ABOUT THE STRICTLY OFFICIAL ACTIVITIES OF VARIOUS LEVELS OF
GOVERNMENT," ROSENBLOOM V. METROMEDIA, INC., SUPRA, AT 41; FOR
"(FREEDOM OF DISCUSSION, IF IT WOULD FULFILL ITS HISTORIC FUNCTION IN
THIS NATION, MUST EMBRACE ALL ISSUES ABOUT WHICH INFORMATION IS NEEDED
OR APPROPRIATE TO ENABLE THE MEMBERS OF SOCIETY TO COPE WITH THE
EXIGENCIES OF THEIR PERIOD."  THORNHILL V. ALABAMA, 310 U.S. 88, 102
(1940). 

THE TEACHING TO BE DISTILLED FROM OUR PRIOR CASES IS THAT, WHILE
PUBLIC INTEREST IN EVENTS MAY AT TIMES BE INFLUENCED BY THE NOTORIETY
OF THE INDIVIDUALS INVOLVED, "(THE PUBLIC'S PRIMARY INTEREST IS IN THE
EVENT(,) . . . THE CONDUCT OF THE PARTICIPANT AND THE CONTENT, EFFECT,
AND SIGNIFICANCE OF THE CONDUCT . . . ."  ROSENBLOOM, SUPRA, AT 43. 
MATTERS OF PUBLIC OR GENERAL INTEREST DO NOT "SUDDENLY BECOME LESS SO
MERELY BECAUSE A PRIVATE INDIVIDUAL IS INVOLVED, OR BECAUSE IN SOME
SENSE THE INDIVIDUAL DID NOT 'VOLUNTARILY' CHOOSE TO BECOME INVOLVED." 
IBID.  SEE TIME, INC. V. HILL, 385 U.S. 374, 388 (1967). 

ALTHOUGH ACKNOWLEDGING THAT FIRST AMENDMENT VALUES ARE OF NO LESS
SIGNIFICANCE WHEN MEDIA REPORTS CONCERN PRIVATE PERSONS' INVOLVEMENT IN
MATTERS OF PUBLIC CONCERN, THE COURT REFUSES TO PROVIDE, IN SUCH CASES,
THE SAME LEVEL OF CONSTITUTIONAL PROTECTION THAT HAS BEEN AFFORDED THE
MEDIA IN THE CONTEXT OF DEFAMATION OF PUBLIC PERSONS.  THE
ACCOMMODATION THAT THIS COURT HAS ESTABLISHED BETWEEN FREE SPEECH AND
LIBEL LAWS IN CASES INVOLVING PUBLIC OFFICIALS AND PUBLIC FIGURES--THAT
DEFAMTORY FALSEHOOD BE SHOWN BY CLEAR AND CONVINCING EVIDENCE TO HAVE
BEEN PUBLISHED WITH KNOWLEDGE OF FALSITY OR WITH RECKLESS DISREGARD OF
TRUTH--IS NOT APT, THE COURT HOLDS, BECAUSE THE PRIVATE INDIVIDUAL DOES
NOT HAVE THE SAME DEGREE OF ACCESS TO THE MEDIA TO REBUT DEFAMATORY
COMMENTS AS DOES THE PUBLIC PERSON AND HE HAS NOT VOLUNTARILY EXPOSED
HIMSELF TO PUBLIC SCRUTINY. 

WHILE THESE ARGUMENTS ARE FORCEFULLY AND ELOQUENTLY PRESENTED, I
CANNOT ACCEPT THEM, FOR THE REASONS I STATED IN ROSENBLOOM: 

"THE NEW YORK TIMES STANDARD WAS APPLIED TO LIBEL OF A PUBLIC OFFICIAL
OR PUBLIC FIGURE TO GIVE EFFECT TO THE (FIRST) AMENDMENT'S FUNCTION TO
ENCOURAGE VENTILATION OF PUBLIC ISSUES, NOT BECAUSE THE PUBLIC OFFICIAL
HAS ANY LESS INTEREST IN PROTECTING HIS REPUTATION THAN AN INDIVIDUAL
IN PRIVATE LIFE.  WHILE THE ARGUMENT THAT PUBLIC FIGURES NEED LESS
PROTECTION BECAUSE THEY CAN COMMAND MEDIA ATTENTION TO COUNTER
CRITICISM MAY BE TRUE FOR SOME VERY PROMINENT PEOPLE, EVEN THEN IT IS
THE RARE CASE WHERE THE DENIAL OVERTAKES THE ORIGINAL CHARGE.  DENIALS,
RETRACTIONS, AND CORRECTIONS ARE NOT 'HOT'  NEWS, AND RARELY RECEIVE
THE PROMINENCE OF THE ORIGINAL STORY.  WHEN THE PUBLIC OFFICIAL OR
PUBLIC FIGURE IS A MINOR FUNCTIONARY, OR HAS LEFT THE POSITION THAT PUT
HIM IN THE PUBLIC EYE . . ., THE ARGUMENT LOSES ALL OF ITS FORCE.  IN
THE VAST MAJORITY OF LIBELS INVOLVING PUBLIC OFFICIALS OR PUBLIC
FIGURES, THE ABILITY TO RESPOND THROUGH THE MEDIA WILL DEPEND ON THE
SAME COMPLEX FACTOR ON WHICH THE ABILITY OF A PRIVATE INDIVIDUAL
DEPENDS:  THE UNPREDICTABLE EVENT OF THE MEDIA'S CONTINUING INTEREST IN
THE STORY.  THUS THE UNPROVED, AND HIGHLY IMPROBABLE, GENERALIZATION
THAT AN AS YET (NOT FULLY DEFINED) CLASS OF 'PUBLIC FIGURES' INVOLVED
IN MATTERS OF PUBLIC CONCERN WILL BE BETTER ABLE TO RESPOND THROUGH THE
MEDIA THAN PRIVATE INDIVIDUALS ALSO INVOLVED IN SUCH MATTERS SEEMS TOO
INSUBSTANTIAL A REED ON WHICH TO REST A CONSTITUTIONAL DISTINCTION." 
403 U.S.,AT 46 - 47.  MOREOVER THE ARGUMENT THAT PRIVATE PERSONS SHOULD
NOT BE REQUIRED TO PROVE NEW YORK TIMES KNOWING-OR-RECKLESS FALSITY
BECAUSE THEY DO NOT ASSUME THE RISK OF DEFAMATION BY FREELY ENTERING
THE PUBLIC ARENA "BEARS LITTLE RELATIONSHIP EITHER TO THE VALUES
PROTECTED BY THE FIRST AMENDMENT OR TO THE NATURE OF OUR SOCIETY." 
ID., AT 47.  SOCIAL INTERACTION EXPOSES ALL OF US TO SOME DEGREE OF
PUBLIC VIEW.  THIS COURT HAS OBSERVED THAT "(THE RISK OF THIS EXPOSURE
IS AN ESSENTIAL INCIDENT OF LIFE IN A SOCIETY WHICH PLACES A PRIMARY
VALUE ON FREEDOM OF SPEECH AND OF PRESS."  TIME, INC. V. HILL, 385
U.S.,AT 388.  THEREFORE, 

"(VOLUNTARILY OR NOT, WE ARE ALL 'PUBLIC' MEN TO SOME DEGREE. 
CONVERSELY, SOME ASPECTS OF THE LIVES OF EVEN THE MOST PUBLIC MEN FALL
OUTSIDE THE AREA OF MATTERS OF PUBLIC OR GENERAL CONCERN.  SEE . . .
GRISWOLD V. CONNECTICUT, 381 U.W. 479 (1965).  THUS, THE IDEA THAT
CERTAIN 'PUBLIC'  FIGURES HAVE VOLUNTARILY EXPOSED THEIR ENTIRE LIVES
TO PUBLIC INSPECTION, WHILE PRIVATE INDIVIDUALS HAVE KEPT THEIRS
CAREFULLY SHROUDED FROM PUBLIC VIEW, IS, AT BEST, A LEGAL FICTION.  IN
ANY EVENT, SUCH A DISTINCTION COULD EASILY PRODUCE THE PARADOXICAL
RESULT OF DAMPENING DISCUSSION OF ISSUES OF PUBLIC OR GENERAL CONCERN
BECAUSE THEY HAPPEN TO INVOLVE PRIVATE CITIZENS WHILE EXTENDING
CONSTITUTIONAL ENCOURAGEMENT TO DISCUSSION OF ASPECTS OF THE LIVES OF
'PUBLIC FIGURES' THAT ARE NOT IN THE AREA OF PUBLIC OR GENERAL
CONCERN."  ROSENBLOOM, SUPRA, AT 48 (FOOTNOTE OMITTED). 

TO BE SURE, NO ONE COMMENDS PUBLICATIONS WHICH DEFAME THE GOOD NAME
AND REPUTATION OF ANY PERSON:  "IN AN IDEAL WORLD, THE RESPONSIBILITY
OF THE PRESS WOULD MATCH THE FREEDOM AND PUBLIC TRUST GIVEN IT."  ID.,
AT 51.  /2/  RATHER, AS THE COURT AGREES, SOME ABUSE OF FIRST AMENDMENT
FREEDOMS IS TOLERATED ONLY TO INSURE THAT WOULD-BE COMMENTATORS ON
EVENTS OF PUBLIC OR GENERAL INTEREST ARE NOT "DETERRED FROM VOICING
THEIR CRITICISM, EVEN THOUGH IT IS BELIEVED TO BE TRUE AND EVEN THOUGH
IT IS IN FACT TRUE, BECAUSE OF DOUBT WHETHER IT CAN BE PROVED IN COURT
OR FEAR OF THE EXPENSE OF HAVING TO DO SO."  NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S., AT 279.  THE COURT'S HOLDING AND A FORTIORI MY
BROTHER WHITE'S VIEWS, SEE N. 1, SUPRA, SIMPLY DENY FREE EXPRESSION ITS
NEEDED "BREATHING SPACE."  TODAY'S DECISION WILL EXACERBATE THE RULE OF
SELF-CENSORSHIP OF LEGITIMATE UTTERANCE AS PUBLISHERS "STEER FAR WIDER
OF THE UNLAWFUL ZONE," SPEISER V. RANDALL, 357 U.S. 513, 526 (1958). 

WE RECOGNIZED IN NEW YORK TIMES CO. V. SULLIVAN, SUPRA, AT 279, THAT
A RULE REQUIRING A CRITIC OF OFFICAL CONDUCT TO GUARANTEE THE TRUTH OF
ALL OF HIS FACTUAL CONTENTIONS WOULD INEVITABLY LEAD TO SELF-CENSORSHIP
WHEN PUBLISHERS, FEARFUL OF BEING UNABLE TO PROVE TRUTH OR UNABLE TO
BEAR THE EXPENSE OF ATTEMPTING TO DO SO, SIMPLY ESCHEWED PRINTING
CONTROVERSIAL ARTICLES.  ADOPTION, BY MANY STATES, OF A REASONABLE-CARE
STANDARD IN CASES WHERE PRIVATE INDIVIDUALS ARE INVOLVED IN MATTERS OF
PUBLIC INTEREST--THE PROBABLE RESULT OF TODAY'S DECISION--WILL LIKEWISE
LEAD TO SELF-CENSORSHIP SINCE PUBLISHERS WILL BE REQUIRED CAREFULLY TO
WEIGH A MYRIAD OF UNCERTAIN FACTORS BEFORE PUBLICATION.  THE REASONABLE
CARE STANDARD IS "ELUSIVE," TIME, INC. V. HILL, SUPRA, AT 389; IT
SADDLES THE PRESS WITH "THE INTOLERABLE BURDEN OF GUESSING HOW A JURY
MIGHT ASSESS THE REASONABLENESS OF STEPS TAKEN BY IT TO VERIFY THE
ACCURACY OF EVERY REFERENCE TO A NAME, PICTURE OR PORTRAIT."  IBID.
UNDER A REASONABLE-CARE REGIME, PUBLISHERS AND BROADCASTERS WILL HAVE
TO MAKE PRE-PUBLICATION JUDGMENTS ABOUT JUROR ASSESSMENT OF SUCH
DIVERSE CONSIDERATIONS AS THE SIZE, OPERATING PROCEDURES, AND FINANCIAL
CONDITION OF THE NEWSGATHERING SYSTEM, AS WELL AS THE RELATIVE COSTS
AND BENEFITS OF INSTITUTING LESS FREQUENT AND MORE COSTLY REPORTING AT
A HIGHER LEVEL OF ACCURACY.  SEE THE SUPREME COURT, 1970 TERM, 85
HARV.L.REV.  3, 228 (1971).  MOREOVER, IN CONTRAST TO PROOF BY CLEAR
AND CONVINCING EVIDENCE REQUIRED UNDER THE TIMES TEST, THE BURDEN OF
PROOF FOR REASONABLE CARE WILL DOUBTLESS BE THE PREPONDERANCE OF THE
EVIDENCE. 

"IN THE NORMAL CIVIL SUIT WHERE (THE PREPONDERANCE OF THE EVIDENCE)
STANDARD IS EMPLOYED, 'WE VIEW IT AS NO MORE SERIOUS IN GENERAL FOR
THERE TO BE AN ERRONEOUS VERDICT IN THE DEFENDANT'S FAVOR THAN FOR
THERE TO BE AN ERRONEOUS VERDICT IN THE PLAINTIFF'S FAVOR.'  IN RE
WINSHIP, 397 U.S. 358, 371 (1970) (HARLAN, J., CONCURRING).  IN LIBEL
CASES, HOWEVER, WE VIEW AN ERRONEOUS VERDICT FOR THE PLAINTIFFAS MOST
SERIOUS.  NOT ONLY DOES IT MULCT THE DEFENDANT FOR AN INNOCENT
MISSTATEMENT . . . BUT THE POSSIBILITY OF SUCH ERROR, EVEN BEYOND THE
VAGUENESS OF THE NEGLIGENCE STANDARD ITSELF, WOULD CREATE A STRONG
IMPETUS TOWARD SELF-CENSORSHIP, WHICH THE FIRST AMENDMENT CANNOT
TOLERATE."  ROSENBLOOM, 403 U.S., AT 50.  AND, MOST HAZARDOUS, THE
FLEXIBILITY WHICH INHERES IN THE REASONABLE-CARE STANDARD WILL CREATE
THE DANGER THAT A JURY WILL CONVERT IT INTO "AN INSTRUMENT FOR THE
SUPPRESSION OF THOSE 'VEHEMENT, CAUSTIC, AND SOMETIMES UNPLEASANTLY
SHARP ATTACKS,' . . . WHICH MUST BE PROTECTED IF THE GUARANTEES OF THE
FIRST AND FOURTEENTH AMENDMENTS ARE TO PREVAIL."  MONITOR PATRIOT CO.
V. ROY, 401 U.S. 265, 277 (1971). 

THE COURT DOES NOT DISCOUNT ALTOGETHER THE DANGER THAT JURORS WILL
PUNISH FOR THE EXPRESSION OF UNPOPULAR OPINIONS.  THIS PROBABILITY
ACCOUNTS FOR THE COURT'S LIMITATION THAT "THE STATES MAY NOT PERMIT
RECOVERY OF PRESUMED OR PUNITIVE DAMAGES, AT LEAST WHEN LIABILITY IS
NOT BASED ON A SHOWING OF KNOWLEDGE OF FALSITY OR RECKLESS DISREGARD
FOR THE TRUTH."  ANTE, AT 349.  BUT PLAINLY A JURY'S LATITUDE TO IMPOSE
LIABILITY FOR WANT OF DUE CARE POSES A FAR GREATER THREAT OF
SUPPRESSING UNPOPULAR VIEWS THAN DOES A POSSIBLE RECOVERY OF PRESUMED
OR PUNITIVE DAMAGES.  MOREOVER, THE COURT'S BROAD-RANGING EXAMPLES OF
"ACTUAL INJURY," INCLUDING IMPAIRMENT OF REPUTATION AND STANDING IN THE
COMMUNITY, AS WELL AS PERSONAL HUMILIATION, AND MENTAL ANGUISH AND
SUFFERING, INEVITABLY ALLOW A JURY BENT ON PUNISHING EXPRESSION OF
UNPOPULAR VIEWS A FORMIDABLE WEAPON FOR DOING SO. FINALLY, EVEN A
LIMITATION OF RECOVERY TO "ACTUAL INJURY"--HOWEVER MUCH IT REDUCES THE
SIZE OR FREQUENCY OF RECOVERIES--WILL NOT PROVIDE THE NECESSARY
ELBOWROOM FOR FIRST AMENDMENT EXPRESSION. 

"IT IS NOT SIMPLY THE POSSIBILITY OF A JUDGMENT FOR DAMAGES THAT
RESULTS IN SELF-CENSORSHIP.  THE VERY POSSIBILITY OF HAVING TO ENGAGE
IN LITIGATION, AN EXPENSIVE AND PROTRACTED PROCESS, IS THREAT ENOUGH TO
CAUSE DISCUSSION AND DEBATE TO 'STEER FAR WIDER OF THE UNLAWFUL ZONE'
THEREBY KEEPING PROTECTED DISCUSSION FROM PUBLIC COGNIZANCE . . . .
TOO, A SMALL NEWSPAPER SUFFERS EQUALLY FROM A SUBSTANTIAL DAMAGE AWARD,
WHETHER THE LABEL OF THE AWARD BE 'ACTUAL' OR 'PUNITIVE.'"  ROSENBLOOM,
SUPRA, AT 52 - 53. 

ON THE OTHER HAND, THE UNCERTAINITIES WHICH THE MEDIA FACE UNDER
TODAY'S DECISION ARE LARGELY AVOIDED BY THE TIMES STANDARD.  I REJECT
THE ARGUMENT THAT MY ROSENBLOOM VIEW IMPROPERLY COMMITS TO JUDGES THE
TASK OF DETERMINING WHAT IS AND WHAT IS NOT AN ISSUE OF "GENERAL OR
PUBLIC INTEREST."  /3/  I NOTED IN ROSENBLOOM THAT PERFORMANCE OF THIS
TASK WOULD NOT ALWAYS BE EASY.  ID., AT 49 N. 17.  BUT SURELY THE
COURTS, THE ULTIMATE ARBITERS OF ALL DISPUTES CONCERNING CLASHES OF
CONSTITUTIONAL VALUES, WOULD ONLY BE PERFORMING ONE OF THEIR
TRADITIONAL FUNCTIONS IN UNDERTAKING THIS DUTY.  ALSO, THE DIFFICULTY
OF THIS TASK HAS BEEN SUBSTANTIALLY LESSENED BY THAT "SIZABLE BODY OF
CASES, DECIDED BOTH BEFORE AND AFTER ROSENBLOOM, THAT HAVE EMPLOYED THE
CONCEPT OF A MATTER OF PUBLIC CONCERN TO REACH DECISIONS IN . . . CASES
DEALING WITH AN ALLEGED LIBEL OF A PRIVATE INDIVIDUAL THAT EMPLOYED A
PUBLIC INTEREST STANDARD . . . AND . . . CASES THAT APPLIED BUTTS TO
THE ALLEGED LIBEL OF A PUBLIC FIGURE."  COMMENT, THE EXPANDING
CONSTITUTIONAL PROTECTION FOR THE NEWS MEDIA FROM LIABILITY FOR
DEFAMATION:  PREDICTABILITY AND THE NEW SYNTHESIS, 70 MICH.L.REV. 
1547, 1560 (1972).  THE PUBLIC INTEREST IS NECESSARILY BROAD; ANY
RESIDUAL SELF-CENSORSHIP THAT MAY RESULT FROM THE UNCERTAIN CONTOURS OF
THE "GENERAL OR PUBLIC INTEREST" CONCEPT SHOULD BE OF FAR LESS CONCERN
TO PUBLISHERS AND BROADCASTERS THAN THAT OCCASIONED BY STATE LAWS
IMPOSING LIABILITY FOR NEGLIGENT FALSEHOOD. 

SINCE PETITIONER FAILED, AFTER HAVING BEEN GIVEN A FULL AND FAIR
OPPORTUNITY, TO PROVE THAT RESPONDENT PUBLISHED THE DISPUTED ARTICLE
WITH KNOWLEDGE OF ITS FALSITY OR WITH RECKLESS DISREGARD OF THE TRUTH,
SEE ANTE, AT 329 - 330, N. 2, I WOULD AFFIRM THE JUDGMENT OF.THE COURT
OF APPEALS. 

/1/ A FORTIORI I DISAGREE WITH MY BROTHER WHITE'S VIEW THAT THE
STATES SHOULD HAVE FREE REIN TO IMPOSE STRICT LIABILITY FOR DEFAMATION
IN CASES NOT INVOLVING PUBLIC PERSONS. 

/2/  A RESPECTED COMMENTATOR HAS OBSERVED THAT FACTORS OTHER THAN
PURELY LEGAL CONSTRAINTS OPERATE TO CONTROL THE PRESS: 

"TRADITIONS, ATTITUDES, AND GENERAL RULES OF POLITICAL CONDUCT ARE
FAR MORE IMPORTANT CONTROLS.  THE FEAR OF OPENING A CREDIBILITY GAP,
AND THEREBY LESSENING ONE'S INFLUENCE, HOLDS SOME PARTICIPANTS IN
CHECK.  INSTITUTIONAL PRESSURES IN LARGE ORGANIZATIONS, INCLUDING SOME
OF THE PRESS, HAVE A SIMILAR EFFECT; IT IS DIFFICULT FOR AN
ORGANIZATION TO HAVE AN OPEN POLICY OF MAKING INTENTIONALLY FALSE
ACCUSATIONS."  T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 538
(1970).  TYPICAL OF THE PRESS' OWN ONGOING SELF-EVALUATION IS A
PROPOSAL TO ESTABLISH A NATIONAL NEWS COUNCIL, COMPOSED OF MEMBERS
DRAWN FROM THE PUBLIC AND THE JOURNALISM PROFESSION, TO EXAMINE AND
REPORT ON COMPLAINTS CONCERNING THE ACCURACY AND FAIRNESS OF NEWS
REPORTING BY THE LARGEST NEWSGATHERING SOURCES.  TWENTIETH CENTURY FUND
TASK FORCE REPORT FOR A NATIONAL NEWS COUNCIL, A FREE AND RESPONSIVE
PRESS (1973).  SEE ALSO COMMENT, THE EXPANDING CONSTITUTIONAL
PROTECTION FOR THE NEWS MEDIA FROM LIABILITY FOR DEFAMATION:
PREDICTABILITY AND THE NEW SYNTHESIS, 70 MICH.L.REV.  1547, 1569 - 1570
(1972). 

/3/  THE COURT, TAKING A NOVEL STEP, WOULD NOT LIMIT APPLICATION OF
FIRST AMENDMENT PROTECTION TO PRIVATE LIBELS INVOLVING ISSUES OF
GENERAL OR PUBLIC INTEREST, BUT WOULD FORBID THE STATES FROM IMPOSING
LIABILITY WITHOUT FAULT IN ANY CASE WHERE THE SUBSTANCE OF THE
DEFAMATORY STATEMENT MADE SUBSTANTIAL DANGER TO REPUTATION APPARENT. 
AS IN ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29, 44 N. 12, 48 - 49,
N. 17 (1971), I WOULD LEAVE OPEN THE QUESTION OF WHAT CONSTITUTIONAL
STANDARD, IF ANY, APPLIES WHEN DEFAMATORY FALSEHOODS ARE PUBLISHED OR
BROADCAST CONCERNING EITHER A PRIVATE OR PUBLIC PERSON'S ACTIVITIES NOT
WITHIN THE SCOPE OF THE GENERAL OR PUBLIC INTERST. 

PARENTHETICALLY, MY BROTHER WHITE ARGUES THAT THE COURT'S VIEW AND
MINE WILL PREVENT A PLAINTIFF--UNABLE TO DEMONSTRATE SOME DEGREE OF
FAULT--FROM VINDICATING HIS REPUTATION BY SECURING A JUDGMENT THAT THE
PUBLICATION WAS FALSE.  THIS ARGUMENT OVERLOOKS THE POSSIBLE ENACTMENT
OF STATUTES, NOT REQUIRING PROOF OF FAULT, WHICH PROVIDE FOR AN ACTION
FOR RETRACTION OR FOR PUBLICATION OF A COURT'S DETERMINATION OF FALSITY
IF THE PLAINTIFF IS ABLE TO DEMONSTRATE THAT FALSE STATEMENTS HAVE BEEN
PUBLISHED CONCERNING HIS ACTIVITIES.  CF. NOTE, VINDICATION OF THE
REPUTATION OF A PUBLIC OFFICIAL, 80 HAR.L.REV.  1730, 1739 - 1747
(1967).  ALTHOUGH IT MAY BE THAT QUESTIONS COULD BE RAISED CONCERNING
THE CONSTITUTIONALITY OF SUCH STATUTES, CERTAINLY NOTHING I HAVE SAID
TODAY (AND, AS I READ THE COURT'S OPINION, NOTHING SAID THERE) SHOULD
BE READ TO IMPLY THAT A PRIVATE PLAINTIFF, UNABLE TO PROVE FAULT, MUST
INEVITABLY BE DENIED THE OPPORTUNITY TO SECURE A JUDGMENT UPON THE
TRUTH OR FALSITY OF STATEMENTS PUBLISHED ABOUT HIM.  CF. ROSENBLOOM V.
METROMEDIA, INC., SUPRA, AT 47, AND N. 15. 

MR. JUSTICE WHITE, DISSENTING. 

FOR SOME 200 YEARS--FROM THE VERY FOUNDING OF THE NATION--THE LAW OF
DEFAMATION AND RIGHT OF THE ORDINARY CITIZEN TO RECOVER FOR FALSE
PUBLICATION INJURIOUS TO HIS REPUTATION HAVE BEEN ALMOST EXCLUSIVELY
THE BUSINESS OF STATE COURTS AND LEGISLATURES.  UNDER TYPICAL STATE
DEFAMATION LAW, THE DEFAMED PRIVATE CITIZEN HAD TO PROVE ONLY A FALSE
PUBLICATION THAT WOULD SUBJECT HIM TO HATRED, CONTEMPT, OR RIDICULE. 
GIVEN SUCH PUBLICATION, GENERAL DAMAGE TO REPUTATION WAS PRESUMED,
WHILE PUNITIVE DAMAGES REQUIRED PROOF OF ADDITIONAL FACTS.  THE LAW
GOVERNING THE DEFAMATION OF PRIVATE CITIZENS REMAINED UNTOUCHED BY THE
FIRST AMENDMENT BECAUSE UNTIL RELATIVELY RECENTLY, THE CONSISTENT VIEW
OF THE COURT WAS THAT LIBELOUS WORDS CONSTITUTE A CLASS OF SPEECH
WHOLLY UNPROTECTED BY THE FIRST AMENDMENT, SUBJECT ONLY TO LIMITED
EXCEPTIONS CARVED OUT SINCE 1964. 

BUT NOW, USING THAT AMENDMENT AS THE CHOSEN INSTRUMENT, THE COURT,
IN A FEW PRINTED PAGES, HAS FEDERALIZED MAJOR ASPECTS OF LIBEL LAW BY
DECLARING UNCONSTITUTIONAL IN IMPORTANT RESPECTS THE PREVAILING
DEFAMATION LAW IN ALL OR MOST OF THE 50 STATES.  THAT RESULT IS
ACCOMPLISHED BY REQUIRING THE PLAINTIFF IN EACH AND EVERY DEFAMATION
ACTION TO PROVE NOT ONLY THE DEFENDANT'S CULPABILITY BEYOND HIS ACT OF
PUBLISHING DEFAMATORY MATERIAL BUT ALSO ACTUAL DAMAGE TO REPUTATION
RESULTING FROM THE PUBLICATION.  MOREOVER, PUNITIVE DAMAGES MAY NOT BE
RECOVERED BY SHOWING MALICE IN THE TRADITIONAL SENSE OF ILL WILL;
KNOWING FALSEHOOD OR RECKLESS DISREGARD OF THE TRUTH WILL NOW BE
REQUIRED. 

I ASSUME THESE SWEEPING CHANGES WILL BE POPULAR WITH THE PRESS, BUT
THIS IS NOT THE ROAD TO SALVATION FOR A COURT OF LAW.  AS I SEE IT,
THERE ARE WHOLLY INSUFFICIENT GROUNDS FOR SCUTTLING THE LIBEL LAWS OF
THE STATES IN SUCH WHOLESALE FASHION, TO SAY NOTHING OF DEPRECATING THE
REPUTATION INTEREST OF ORDINARY CITIZENS AND RENDERING THEM POWERLESS
TO PROTECT THEMSELVES.  I DO NOT SUGGEST THAT THE DECISION IS
ILLEGITIMATE OR BEYOND THE BOUNDS OF JUDICIAL REVIEW, BUT IT IS AN ILL
CONSIDERED EXERCISE OF THE POWER ENTRUSTED TO THIS COURT, PARTICULARLY
WHEN THE COURT HAS NOT HAD THE BENEFIT OF BRIEFS AND ARGUMENT ADDRESSED
TO MOST OF THE MAJOR ISSUES WHICH THE COURT NOW DECIDES.  I
RESPECTFULLY DISSENT. 

        I 

LEST THERE BE ANY MISTAKE ABOUT IT, THE CHANGES WROUGHT BY THE
COURT'S DECISION CUT VERY DEEPLY.  IN 1938, THE RESTATEMENT OF TORTS
REFLECTED THE HISTORIC RULE THAT PUBLICATION IN WRITTEN FORM OF
DEFAMATORY MATERIAL--MATERIAL TENDING "SO TO HARM THE REPUTATION OF
ANOTHER AS TO LOWER HIM IN THE ESTIMATION OF THE COMMUNITY OR TO DETER
THIRD PERSONS FROM ASSOCIATING OR DEALING WITH HIM"  /1/  --SUBJECTED
THE PUBLISHER TO LIABILITY ALTHOUGH NO SPECIAL HARM TO REPUTATION WAS
ACTUALLY PROVED.  /2/  RESTATEMENT OF TORTS 569 (1938).  /3/  TRUTH WAS
A DEFENSE, AND SOME LIBELS WERE PRIVILEGED; BUT, GIVEN A FALSE
CIRCULATION, GENERAL DAMAGE TO REPUTATION WAS PRESUMED AND COULD BE
AWARDED BY THE JURY, ALONG WITH ANY SPECIAL DAMAGES SUCH AS PECUNIARY
LOSS AND EMOTIONAL DISTRESS.  AT THE VERY LEAST, THE RULE ALLOWED THE
RECOVERY OF NOMINAL DAMAGES FOR ANY DEFAMATORY PUBLICATION ACTIONABLE
PER SE AND THUS PERFORMED 

"A VINDICATORY FUNCTION BY ENABLING THE PLAINTIFF PUBLICLY TO BRAND
THE DEFAMATORY PUBLICATION AS FALSE.  THE SALUTARY SOCIAL VALUE OF THIS
RULE IS PREVENTIVE IN CHARACTER SINCE IT OFTEN PERMITS A DEFAMED PERSON
TO EXPOSE THE GROUNDLESS CHARACTER OF A DEFAMATORY RUMOR BEFORE HARM TO
THE REPUTATION HAS RESULTED THEREFROM."  ID., 569, COMMENT B, P. 166. 

IF THE DEFAMATION WAS NOT LIBEL BUT SLANDER, IT WAS ACTIONABLE PER
SE ONLY IF IT IMPUTED A CRIMINAL OFFENSE; A VENEREAL OR LOATHSOME AND
COMMUNICABLE DISEASE; IMPROPER CONDUCT OF A LAWFUL BUSINESS; OR
UNCHASTITY BY A WOMAN.  ID., 570.  TO BE ACTIONABLE, ALL OTHER TYPES OF
SLANDEROUS STATEMENTS REQUIRED PROOF OF SPECIAL DAMAGE OTHER THAN
ACTUAL LOSS OF REPUTATION OR EMOTIONAL DISTRESS, THAT SPECIAL DAMAGE
ALMOST ALWAYS BEING IN THE FORM OF MATERIAL OR PECUNIARY LOSS OF SOME
KIND.  ID., 575 AND COMMENT B, PP. 185 - 187. 

DAMAGES FOR LIBEL OR SLANDER PER SE INCLUDED "HARM CAUSED THEREBY TO
THE REPUTATION OF THE PERSON DEFAMED OR IN THE ABSENCE OF PROOF OF SUCH
HARM, FOR THE HARM WHICH NORMALLY RESULTS FROM SUCH A DEFAMATION." 
ID., 621.  AT THE HEART OF THE LIBEL-AND-SLANDER-PER-SE DAMAGE SCHEME
LAY THE AWARD OF GENERAL DAMAGES FOR LOSS OF REPUTATION.  THEY WERE
GRANTED WITHOUT SPECIAL PROOF BECAUSE THE JUDGMENT OF HISTORY WAS THAT
THE CONTENT OF THE PUBLICATION ITSELF WAS SO LIKELY TO CAUSE INJURY AND
BECAUSE "IN MANY CASES THE EFFECT OF DEFAMATORY STATEMENTS IS SO SUBTLE
AND INDIRECT THAT IT IS IMPOSSIBLE DIRECTLY TO TRACE THE EFFECTS
THEREOF IN LOSS TO THE PERSON DEFAMED."  ID., 621, COMMENT A, P. 314. 
/4/  PROOF OF ACTUAL INJURY TO REPUTATION WAS ITSELF INSUFFICIENT PROOF
OF THAT SPECIAL DAMAGE NECESSARY TO SUPPORT LIABILITY FOR SLANDER NOT
ACTIONABLE PER SE.  BUT IF SPECIAL DAMAGE IN THE FORM OF MATERIAL OR
PECUNIARY LOSS WERE PROVED, GENERAL DAMAGES FOR INJURY TO REPUTATION
COULD BE HAD WITHOUT FURTHER PROOF.  "THE PLAINTIFF MAY RECOVER NOT
ONLY FOR THE SPECIAL HARM SO CAUSED, BUT ALSO FOR GENERAL LOSS OF
REPUTATION."  ID., 575, COMMENT A, P. 185.  /5/  THE RIGHT TO RECOVER
FOR EMOTIONAL DISTRESS DEPENDED UPON THE DEFENDANT OTHERWISE BEING
LIABLE FOR EITHER LIBEL OR SLANDER.  ID., 623.  PUNITIVE DAMAGES WERE
RECOVERABLE UPON PROOF OF SPECIAL FACTS AMOUNTING TO EXPRESS MALICE. 
ID., 908 AND COMMENT B, P. 555. 

PREPARATIONS IN THE MID-1960'S FOR RESTATEMENT (SECOND) OF TORTS
REFLECTED WHAT WERE DEEMED TO BE SUBSTANTIAL CHANGES IN THE LAW OF
DEFAMATION, PRIMARILY A TREND TOWARD LIMITING PER SE LIBELS TO THOSE
WHERE THE DEFAMATORY NATURE OF THE PUBLICATION IS APPARENT ON ITS FACE,
I.E., WHERE THE "DEFAMATORY INNUENDO IS APPARENT FROM THE PUBLICATION
ITSELF WITHOUT REFERENCE TO EXTRINSIC FACTS BY WAY OF INDUCEMENT." 
RESTATEMENT (SECOND) OF TORTS 569, P. 29 (TENT.  DRAFT NO. 12, APR. 27,
1966).  LIBELS OF THIS SORT AND SLANDERS PER SE CONTINUED TO BE
RECOGNIZED AS ACTIONABLE WITHOUT PROOF OF SPECIAL DAMAGE OR INJURY TO
REPUTATION.  /6/  ALL OTHER DEFAMATIONS WOULD REQUIRE PROOF OF SPECIAL
INJURY IN THE FORM OF MATERIAL OR PECUNIARY LOSS.  WHETHER THIS
ASSERTED CHANGE REFLECTED THE PREVAILING LAW WAS HEAVILY DEBATED, /7/
BUT IT WAS UNQUESTIONED AT THE TIME THAT THERE ARE RECURRING SITUATIONS
IN WHICH LIBEL AND SLANDER ARE AND SHOULD BE ACTIONABLE PER SE.     IN
SURVEYING THE CURRENT STATE OF THE LAW, THE PROPOSED RESTATEMENT
(SECOND) OBSERVED THAT "(ALL COURTS EXCEPT VIRGINIA AGREE THAT ANY
LIBEL WHICH IS DEFAMATORY UPON ITS FACE IS ACTIONABLE WITHOUT PROOF OF
DAMAGE . . . ."  RESTATEMENT (SECOND) OF TORTS 569, P. 84 (TENT.  DRAFT
NO. 11, APR. 15, 1965).  TEN JURISDICTIONS CONTINUED TO SUPPORT THE OLD
RULE THAT LIBEL NOT DEFAMATORY ON ITS FACE AND WHOSE INNUENDO DEPENDS
ON EXTRINSIC FACTS IS ACTIONABLE WITHOUT PROOF OF DAMAGE ALTHOUGH
SLANDER WOULD NOT BE.  TWENTY-FOUR JURISDICTIONS WERE SAID TO HOLD THAT
LIBEL NOT DEFAMATORY ON ITS FACE IS TO BE TREATED LIKE SLANDER AND THUS
NOT ACTIONABLE WITHOUT PROOF OF DAMAGE WHERE SLANDER WOULD NOT BE.
ID., 569, P. 86.  THE LAW IN SIX JURISDICTTIONS WAS FOUND TO BE IN AN
UNSETTLED STATE BUT MOST LIKELY CONSISTENT WITH THE RESTATEMENT
(SECOND).  ID., 569, P. 88.  THE LAW IN VIRGINIA WAS THOUGHT TO
CONSIDER LIBEL ACTIONABLE WITHOUT PROOF OF SPECIAL DAMAGE ONLY WHERE
SLANDER WOULD BE, REGARDLESS OF WHETHER THE LIBEL IS DEFAMATORY ON ITS
FACE.  ID., 569, P. 89.  ALL STATES, THEREFORE, WERE AT THAT TIME
THOUGHT TO RECOGNIZE IMPORTANT CATEGORIES OF DEFAMATION THAT WERE
ACTIONABLE PER SE.  /8/  NOR WAS ANY QUESTION APPARENTLY RAISED AT THAT
TIME THAT UPON PROOF OF SPECIAL DAMAGE IN THE FORM OF MATERIAL OR
PECUINARY LOSS, GENERAL DAMAGES TO REPUTATION COULD BE RECOVERED
WITHOUT FURTHER PROOF. 

UNQUESTIONABLY, STATE LAW CONTINUED TO RECOGNIZE SOME ABSOLUTE, AS
WELL AS SOME CONDITIONAL, PRIVILEGES TO PUBLISH DEFAMATORY MATERIALS,
INCLUDING THE PRIVILEGE OF FAIR COMMENT IN DEFINED SITUATIONS.  BUT IT
REMAINED TRUE THAT IN A WIDE RANGE OF SITUATIONS, THE ORDINARY CITIZEN
COULD MAKE OUT A PRIMA FACIE CASE WITHOUT PROVING MORE THAN A
DEFAMATORY PUBLICATION AND COULD RECOVER GENERAL DAMAGES FOR INJURY TO
HIS REPUTATION UNLESS DEFEATED BY THE DEFENSE OF TRUTH.  /9/ 

THE IMPACT OF TODAY'S DECISION ON THE TRADITIONAL LAW OF LIBEL IS
IMMEDIATELY OBVIOUS AND INDISPUTABLE.  NO LONGER WILL THE PLAINTIFF BE
ABLE TO REST HIS CASE WITH PROOF OF A LIBEL DEFAMATORY ON ITS FACE OR
PROOF OF A SLANDER HISTORICALLY ACTIONABLE PER SE.  IN ADDITION, HE
MUST PROVE SOME FURTHER DEGREE OF CULPABLE CONDUCT ON THE PART OF THE
PUBLISHER, SUCH AS INTENTIONAL OR RECKLESS FALSEHOOD OR NEGLIGENCE. 
AND IF HE SUCCEEDS IN THIS RESPECT, HE FACES STILL ANOTHER OBSTACLE:
RECOVERY FOR LOSS OF REPUTATION WILL BE CONDITIONED UPON "COMPETENT"
PROOF OF ACTUAL INJURY TO HIS STANDING IN THE COMMUNITY.  THIS WILL BE
TRUE REGARDLESS OF THE NATURE OF THE DEFAMATION AND EVEN THOUGH IT IS
ONE OF THOSE PARTICULARLY REPREHENSIBLE STATEMENTS THAT HAVE
TRADITIONALLY MADE SLANDEROUS WORDS ACTIONABLE WITHOUT PROOF OF FAULT
BY THE PUBLISHER OR OF THE DAMAGING IMPACT OF HIS PUBLICATION.  THE
COURT REJECTS THE JUDGMENT OF EXPERIENCE THAT SOME PUBLICATIONS ARE SO
INHERENTLY CAPABLE OF INJURY, AND ACTUAL INJURY SO DIFFICULT TO PROVE,
THAT THE RISK OF FALSEHOOD SHOULD BE BORNE BY THE PUBLISHER, NOT THE
VICTIM.  PLAINLY, WITH THE ADDITIONAL BURDEN ON THE PLAINTIFF OF
PROVING NEGLIGENCE OR OTHER FAULT, IT WILL BE EXCEEDINGLY DIFFICULT,
PERHAPS IMPOSSIBLE, FOR HIM TO VINDICATE HIS REPUTATION INTEREST BY
SECURING A JUDGMENT FOR NOMINAL DAMAGES, THE PRACTICAL EFFECT OF SUCH A
JUDGMENT BEING A JUDICIAL DECLARATION THAT THE PUBLICATION WAS INDEED
FALSE.  UNDER THE NEW RULE THE PLAINTIFF CAN LOSE, NOT BECAUSE THE
STATEMENT IS TRUE, BUT BECAUSE IT WAS NOT NEGLIGENTLY MADE. 

SO TOO, THE REQUIREMENT OF PROVING SPECIAL INJURY TO REPUTATION
BEFORE GENERAL DAMAGES MAY BE AWARDED WILL CLEARLY ELIMINATE THE
PREVAILING RULE, WORKED OUT OVER A VERY LONG PERIOD OF TIME, THAT, IN
THE CASE OF DEFAMATIONS NOT ACTIONABLE PER SE, THE RECOVERY OF GENERAL
DAMAGES FOR INJURY TO REPUTATION MAY ALSO BE HAD IF SOME FORM OF
MATERIAL OR PECUNIARY LOSS IS PROVED.  FINALLY, AN INFLEXIBLE FEDERAL
STANDARD IS IMPOSED FOR THE AWARD OF PUNITIVE DAMAGES.  NO LONGER WILL
IT BE ENOUGH TO PROVE ILL WILL AND AN ATTEMPT TO INJURE. 

THESE ARE RADICAL CHANGES IN THE LAW AND SEVERE INVASIONS OF THE
PREROGATIVES OF THE STATES.  THEY SHOULD AT LEAST BE SHOWN TO BE
REQUIRED BY THE FIRST AMENDMENT OR NECESSITATED BY OUR PRESENT
CIRCUMSTANCES.  NEITHER HAS BEEN DEMONSTRATED. 

OF COURSE, NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964);
ROSENBLATT V. BAER, 383 U.S. 75 (1966), AND CURTIS PUBLISHING CO. V.
BUTTS AND ASSOCIATED PRESS V. WALKER, 388 U.S. 130 (1967), HAVE
THEMSELVES WORKED MAJOR CHANGES IN DEFAMATION LAW.  PUBLIC OFFICIALS
AND PUBLIC FIGURES, IF THEY ARE TO RECOVER GENERAL DAMAGES FOR INJURY
TO REPUTATION, MUST PROVE KNOWING FALSEHOOD OR RECKLESS DISREGARD FOR
THE TRUTH.  THE STATES WERE REQUIRED TO CONFORM TO THESE DECISIONS. 
THEREAFTER IN ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29 (1971), THREE
MEMBERS OF THE COURT URGED THAT THE SAME STANDARD BE APPLIED WHENEVER
THE PUBLICATION CONCERNED AN EVENT OF PUBLIC OR GENERAL CONCERN.  BUT
NONE OF THESE CASES PURPORTED TO FORECLOSE IN ALL CIRCUMSTANCES
RECOVERY BY THE ORDINARY CITIZEN ON TRADITIONAL STANDARDS OF LIABILITY,
AND UNTIL TODAY, A MAJORITY OF THE COURT HAD NOT SUPPORTED THE
PROPOSITION THAT, GIVEN LIABILITY, A COURT OR JURY MAY NOT AWARD
GENERAL DAMAGES IN A REASONABLE AMOUNT WITHOUT FURTHER PROOF OF
INJURY. 

IN THE BRIEF PERIOD SINCE ROSENBLOOM WAS DECIDED, AT LEAST 17 STATES
AND SEVERAL FEDERAL COURTS OF APPEALS HAVE FELT OBLIGED TO CONSIDER THE
NEW YORK TIMES CONSTITUTIONAL PRIVILEGE FOR LIABILITY AS EXTENDING TO,
IN THE WORDS OF THE ROSENBLOOM PLURALITY, "ALL DISCUSSION AND
COMMUNICATION INVOLVING MATTERS OF PUBLIC OR GENERAL CONCERN."  ID., AT
44.  /10/  APPARENTLY, HOWEVER, GENERAL DAMAGES STILL REMAIN
RECOVERABLE ONCE THAT STANDARD OF LIABILITY IS SATISFIED.  EXCEPT WHERE
PUBLIC OFFICIALS AND PUBLIC FIGURES ARE CONCERNED, THE COURT NOW
REPUDIATES THE PLURALITY OPINION IN ROSENBLOOM AND APPEARS TO ESPOUSE
THE LIABILITY STANDARD SET FORTH BY THREE OTHER JUSTICES IN THAT CASE. 
THE STATES MUST NOW STRUGGLE TO DISCERN THE MEANING OF SUCH ILL-DEFINED
CONCEPTS AS "LIABILITY WITHOUT FAULT" AND TO FASHION NOVEL RULES FOR
THE RECOVERY OF DAMAGES.  THESE MATTERS HAVE NOT BEEN BRIEFED OR ARGUED
BY THE PARTIES AND THEIR WORKABILITY HAS NOT BEEN SERIOUSLY EXPLORED. 
NEVERTHELESS, YIELDING TO THE APPARENTLY IRRESISTIBLE IMPULSE TO
ANNOUNCE A NEW AND DIFFERENT INTERPRETATION OF THE FIRST AMENDMENT, THE
COURT DISCARDS HISTORY AND PRECEDENT IN ITS RUSH TO REFASHION
DEFAMATION LAW IN ACCORDANCE WITH THE INCLINATIONS OF A PERHAPS
EVANESCENT MAJORITY OF THE JUSTICES. 

II 

THE COURT DOES NOT CONTEND, AND IT COULD HARDLY DO SO, THAT THOSE
WHO WROTE THE FIRST AMENDMENT INTENDED TO FORBID THE FEDERAL
GOVERNMENT, WITHIN ITS SPHERE OF INFLUENCE IN THE TERRITORIES AND THE
DISTRICT OF COLUMBIA, FROM PROVIDING THE PRIVATE CITIZEN A PEACEFUL
REMEDY FOR DAMAGING FALSEHOOD.  AT THE TIME OF THE ADOPTION OF THE
FIRST AMENDMENT, MANY OF THE CONSEQUENCES OF LIBEL LAW ALREADY
DESCRIBED HAD DEVELOPED, PARTICULARLY THE RULE THAT LIBELS AND SOME
SLANDERS WERE SO INHERENTLY INJURIOUS THAT THEY WERE ACTIONABLE WITHOUT
SPECIAL PROOF OF DAMAGE TO REPUTATION.  AS THE COURT POINTED OUT IN
ROTH V. UNITED STATES, 354 U.S. 476, 482 (1957), 10 OF THE 14 STATES
THAT HAD RATIFIED THE CONSTITUTION BY 1792 HAD THEMSELVES PROVIDED
CONSTITUTIONAL GUARANTEES FOR FREE EXPRESSION, AND 13 OF THE 14
NEVERTHELESS PROVIDED FOR THE PROSECUTION OF LIBELS.  PRIOR TO THE
REVOLUTION, THE AMERICAN COLONIES HAD ADOPTED THE COMMON LAW OF LIBEL. 
/11/  CONTRARY TO SOME POPULAR NOTIONS, FREEDOM OF THE PRESS WAS
SHARPLY CURTAILED IN COLONIAL AMERICA.  /12/  SEDITIOUS LIBEL WAS
PUNISHED AS A CONTEMPT BY THE COLONIAL LEGISLATURES AND AS A CRIMINAL
OFFENSE IN THE COLONIAL COURTS.  /13/ 

SCANT, IF ANY, EVIDENCE EXISTS THAT THE FIRST AMENDMENT WAS INTENDED
TO ABOLISH THE COMMON LAW OF LIBEL, AT LEAST TO THE EXTENT OF DEPRIVING
ORDINARY CITIZENS OF MEANINGFUL REDURESS AGAINST THEIR DEFAMERS.  ON
THE CONTRARY, 

"(IT IS CONCEDED ON ALL SIDES THAT THE COMMON-LAW RULES THAT
SUBJECTED THE LIBELER TO RESPONSIBILITY FOR THE PRIVATE INJURY, OR THE
PUBLIC SCANDAL OR DISORDER OCCASIONED BY HIS CONDUCT, ARE NOT ABOLISHED
BY THE PROTECTION EXTENDED TO THE PRESS IN OUR CONSTITUTIONS."  2 T.
COOLEY, CONSTITUTIONAL LIMITATIONS 883 (8TH ED. 1927).  MOREOVER,
CONSISTENT WITH THE BLACKSTONE FORMULA, /14/  THESE COMMON-LAW ACTIONS
DID NOT ABRIDGE FREEDOM OF THE PRESS.  SEE GENERALLY L. LEVY, LEGACY OF
SUPPRESSION:  FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY 247
- 248 (1960); MERIN, LIBEL AND THE SUPREME COURT, 11 WM.&MARY L.REV. 
371, 276 (1969); HALLEN, FAIR COMMENT, 8 TEX.L.REV.  41, 56 (1929). 
ALEXANDER MEIKLEJOHN, WHO ACCORDED GENEROUS REACH TO THE FIRST
AMENDMENT, NEVERTHELESS ACKNOWLEDGED: 

"NO ONE CAN DOUBT THAT, IN ANY WELL-GOVERNED SOCIETY, THE
LEGISLATURE HAS BOTH THE RIGHT AND THE DUTY TO PROHIBIT CERTAIN FORMS
OF SPEECH.  LIBELOUS ASSERTIONS MAY BE, AND MUST BE, FORBIDDEN AND
PUNISHED.  SO TOO MUST SLANDER . . . . ALL THESE NECESSITIES THAT
SPEECH BE LIMITED ARE RECOGNIZED AND PROVIDED FOR UNDER THE
CONSTITUTION.  THEY WERE NOT UNKNOWN TO THE WRITERS OF THE FIRST
AMENDMENT.  THAT AMENDMENT, THEN, WE MAY TAKE FOR GRANTED, DOES NOT
FORBID THE ABRIDGING OF SPEECH.  BUT, AT THE SAME TIME, IT DOES FORBID
THE ABRIDGING OF THE FREEDOM OF SPEECH.  IT IS TO THE SOLVING OF THAT
PARADOX, THAT APPARENT SELF-CONTRADICTION, THAT WE ARE SUMMONED IF, AS
FREE MEN, WE WISH TO KNOW WHAT THE RIGHT OF FREEDOM OF SPEECH IS." 
POLITICAL FREEDOM, THE CONSTITUTIONAL POWERS OF THE PEOPLE 21 (1965). 
SEE ALSO LEFLAR, THE FREE-NESS OF FREE SPEECH, 15 VAND.L.REV.  1073,
1080 - 1081 (1962). 

PROFESSOR ZECHARIAH CHAFEE, A NOTED FIRST AMENDMENT SCHOLAR, HAS
PERSUASIVELY ARGUED THAT CONDITIONS IN 1791 "DO NOT ARBITRARILY FIX THE
DIVISION BETWEEN LAWFUL AND UNLAWFUL SPEECH FOR ALL TIME."  FREE SPEECH
IN THE UNITED STATES 14 (1954).  /15/  AT THE SAME TIME, HOWEVER, HE
NOTES THAT WHILE THE FRAMERS MAY HAVE INTENDED TO ABOLISH SEDITIOUS
LIBELS AND TO PREVENT ANY PROSECUTIONS BY THE FEDERAL GOVERNMENT FOR
CRITICISM OF THE GOVERNMENT, /16/  "THE FREE SPEECH CLAUSES DO NOT WIPE
OUT THE COMMON LAW AS TO OBSCENITY, PROFANITY, AND DEFAMATION OF
INDIVIDUALS."  /17/ 

THE DEBATES IN CONGRESS AND THE STATES OVER THE BILL OF RIGHTS ARE
UNCLEAR AND INCONCLUSIVE ON ANY ARTICULATED INTENTION OF THE FRAMERS AS
TO THE FREE PRESS GUARANTEE.  /18/  WE KNOW THAT BENJAMIN FRANKLIN,
JOHN ADAMS, AND WILLIAM CUSHING FAVORED LIMITING FREEDOM OF THE PRESS
TO TRUTHFUL STATEMENTS, WHILE OTHERS SUCH AS JAMES WILSON SUGGESTED A
RESTATEMENT OF THE BLACKSTONE STANDARD.  /19/ JEFFERSON ENDORSED
MADISON'S FORMULA THAT "CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE
FREEDOM OF SPEECH OR THE PRESS" ONLY AFTER HE SUGGESTED: 

"THE PEOPLE SHALL NOT BE DEPRIVED OF THEIR RIGHT TO SPEAK, TO WRITE,
OR OTHERWISE TO PUBLISH ANYTHING BUT FALSE FACTS AFFECTING INJURIOUSLY
THE LIFE, LIBERTY, OR REPUTATION OF OTHERS . . . ."  F. MOTT, JEFFERSON
AND THE PRESS 14 (1943).  /20/ DOUBT HAS BEEN EXPRESSED THAT THE
MEMBERS OF CONGRESS ENVISIONED THE FIRST AMENDMENT AS REACHING EVEN
THIS FAR.  MERIN, LIBEL AND THE SUPREME COURT, 11 WM.&MARY L.REV.  371,
379 - 380 (1969). 

THIS COURT IN BYGONE YEARS HAS REPEATEDLY DEALT WITH LIBEL AND
SLANDER ACTIONS FROM THE DISTRICT OF COLUMBIA AND FROM THE
TERRITORIES.  ALTHOUGH IN THESE CASES FIRST AMENDMENT CONSIDERATIONS
WERE NOT EXPRESSLY DISCUSSED, THE OPINIONS OF THE COURT UNMISTAKABLY
REVEALED THAT THE CLASSIC LAW OF LIBEL WAS FIRMLY IN PLACE IN THOSE
AREAS WHERE FEDERAL LAW CONTROLLED.  SEE, E.G., WASHINGTON POST CO. V.
CHALONER, 250 U.S. 290 (1919); BAKER V. WARNER, 231 U.S. 588 (1913);
NALLE V. OYSTER, 230 U.S. 165 (1913); DORR V. UNITED STATES, 195 U.S.
138 (1904); POLLARD V. LYON, 91 U.S. 225 (1876); WHITE V. NICHOLLS, 3
HOW.  266 (1845). 

THE COURT'S CONSISTENT VIEW PRIOR TO NEW YORK TIMES CO. V. SULLIVAN,
376 U.S. 254 (1964), WAS THAT DEFAMATORY UTTERANCES WERE WHOLLY
UNPROTECTED BY THE FIRST AMENDMENT.  IN PATTERSON V. COLORADO EX REL.
ATTORNEY GENERAL, 205 U.S. 454, 462 (1907), FOR EXAMPLE, THE COURT SAID
THAT ALTHOUGH FREEDOM OF SPEECH AND PRESS IS PROTECTED FROM ABRIDGMENT
BY THE CONSTITUTION, THESE PROVISIONS "DO NOT PREVENT THE SUBSEQUENT
PUNISHMENT OF SUCH AS MAY BE DEEMED CONTRARY TO THE PUBLIC WELFARE." 
THIS STATEMENT WAS REPEATED IN NEAR V. MINNESOTA EX REL. OLSON, 283
U.S. 697, 714 (1931), THE COURT ADDING: 

"BUT IT IS RECOGNIZED THAT PUNISHMENT FOR THE ABUSE OF THE LIBERTY
ACCORDED TO THE PRESS IS ESSENTIAL TO THE PROTECTION OF THE PUBLIC, AND
THAT THE COMMON LAW RULES THAT SUBJECT THE LIBELER TO RESPONSIBILITY
FOR THE PUBLIC OFFENSE, AS WELL AS FOR THE PRIVATE INJURY, ARE NOT
ABOLISHED BY THE PROTECTION EXTENDED IN OUR CONSTITUTIONS."  ID., AT
715.  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571 - 572 (1942)
(FOOTNOTES OMITTED), REFLECTED THE SAME VIEW: 

"THERE ARE CERTAIN WELL-DEFINED AND NARROWLY LIMITED CLASSES OF
SPEECH, THE PREVENTION AND PUNISHMENT OF WHICH HAVE NEVER BEEN THOUGHT
TO RAISE ANY CONSTITUTIONAL PROBLEM.  THESE INCLUDE THE LEWD AND
OBSCENE, THE PROFANE, THE LIBELOUS, AND THE INSULTING OR 'FIGHTING'
WORDS--THOSE WHICH BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO
INCITE AN IMMEDIATE BREACH OF THE PEACE.  IT HAS BEEN WELL OBSERVED
THAT SUCH UTTERANCES ARE NO ESSENTIAL PART OF ANY EXPOSITION OF IDEAS,
AND ARE OF SUCH SLIGHT SOCIAL VALUE AS A STEP TO TRUTH THAT ANY BENEFIT
THAT MAY BE DERIVED FROM THEM IS CLEARLY OUTWEIGHED BY THE SOCIAL
INTEREST IN ORDER AND MORALITY." 

BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 254 - 257 (1952) (FOOTNOTES
OMITTED), REPEATED THE CHAPLINSKY STATEMENT, NOTING ALSO THAT NOWHERE
AT THE TIME OF THE ADOPTION OF THE CONSTITUTION "WAS THERE ANY
SUGGESTION THAT THE CRIME OF LIBEL BE ABOLISHED."  AND IN ROTH V.
UNITED STATES, 354 U.S.,AT 483 (FOOTNOTE OMITTED), THE COURT FURTHER
EXAMINED THE MEANING OF THE FIRST AMENDMENT: 

     "IN LIGHT OF THIS HISTORY, IT IS APPARENT THAT THE

  UNCONDITIONAL PHRASING OF THE FIRST AMENDMENT WAS NOT INTENDED TO

  PROTECT EVERY UTTERANCE.  THIS PHRASING DID NOT PREVENT THIS

  COURT FROM CONCLUDING THAT LIBELOUS UTTERANCES ARE NOT WITHIN THE

  AREA OF CONSTITUTIONALLY PROTECTED SPEECH.  BEAUHARNAIS V.

  ILLINOIS, 343 U.S. 250, 266.  AT THE TIME OF THE ADOPTION OF THE

  FIRST AMENDMENT, OBSCENITY LAW WAS NOT AS FULLY DEVELOPED AS

  LIBEL LAW, BUT THERE IS SUFFICIENTLY CONTEMPORANEOUS EVIDENCE TO

  SHOW THAT OBSCENITY, TOO, WAS OUTSIDE THE PROTECTION INTENDED FOR

  SPEECH AND PRESS."  /21/ 

THE COURT COULD NOT ACCEPT THE GENERALITY OF THIS HISTORIC VIEW IN
NEW YORK TIMES CO. V. SULLIVAN, SUPRA.  THERE THE COURT HELD THAT THE
FIRST AMENDMENT WAS INTENDED TO FORBID ACTIONS FOR SEDITIOUS LIBEL AND
THAT DEFAMATION ACTIONS BY PUBLIC OFFICIALS WERE THEREFORE NOT SUBJECT
TO THE TRADITIONAL LAW OF LIBEL AND SLANDER.  IF THESE OFFICIALS (AND,
LATER, PUBLIC FIGURES OCCUPYING SEMI-OFFICIAL OR INFLUENTIAL, ALTHOUGH
PRIVATE, POSITIONS) WERE TO RECOVER, THEY WERE REQUIRED TO PROVE NOT
ONLY THAT THE PUBLICATION WAS FALSE BUT ALSO THAT IT WAS KNOWINGLY
FALSE OR PUBLISHED WITH RECKLESS DISREGARD FOR ITS TRUTH OR FALSITY. 
THIS VIEW THAT THE FIRST AMENDMENT WAS WRITTEN TO FORBID SEDITIOUS
LIBEL REFLECTED ONE SIDE OF THE DISPUTE THAT RAGED AT THE TURN OF THE
NINETEENTH CENTURY /2/ AND ALSO MIRRORED THE VIEWS OF SOME LATER
SCHOLARS.  /23/ 

THE CENTRAL MEANING OF NEW YORK TIMES, AND FOR ME THE FIRST
AMENDMENT AS IT RELATES TO LIBEL LAWS, IS THAT SEDITIOUS LIBEL-
CRITICISM OF GOVERNMENT AND PUBLIC OFFICIALS--FALLS BEYOND THE POLICE
POWER OF THE STATE.  376 U.S.,AT 273 - 276.  /24/  IN A DEMOCRATIC
SOCIETY SUCH AS OURS, THE CITIZEN HAS THE PRIVILEGE OF CRITICIZING HIS
GOVERNMENT AND ITS OFFICIALS.  BUT NEITHER NEW YORK TIMES NOR ITS
PROGENY SUGGEST THAT THE FIRST AMENDMENT INTENDED IN ALL CIRCUMSTANCES
TO DEPRIVE THE PRIVATE CITIZEN OF HIS HISTORIC RECOURSE TO REDRESS
PUBLISHED FALSEHOODS DAMAGING TO REPUTATION OR THAT, CONTRARY TO
HISTORY AND PRECEDENT, THE AMENDMENT SHOULD NOW BE SO INTERPRETED. 
SIMPLY PUT, THE FIRST AMENDMENT DID NOT CONFER A "LICENSE TO DEFAME THE
CITIZEN."  W. DOUGLAS, THE RIGHT OF THE PEOPLE 36 (1958). 

I DO NOT LABOR THE FOREGOING MATTERS TO CONTEND THAT THE COURT IS
FORECLOSED FROM RECONSIDERING PRIOR INTERPRETATIONS OF THE FIRST
AMENDMENT.  /25/  BUT THE COURT APPARENTLY FINDS A CLEAN SLATE WHERE IN
FACT WE HAVE INSTRUCTIVE HISTORICAL EXPERIENCE DATING FROM LONG BEFORE
THE FIRST SETTLERS, WITH THEIR NOTIONS OF DEMOCRATIC GOVERNMENT AND
HUMAN FREEDOM, JOURNEYED TO THIS LAND.  GIVEN THIS RICH BACKGROUND OF
HISTORY AND PRECEDENT AND BECAUSE WE DEAL WITH FUNDAMENTALS WHEN WE
CONSTRUE THE FIRST AMENDMENT, WE SHOULD PROCEED WITH CARE AND BE
PRESENTED WITH MORE COMPELLING REASONS BEFORE WE JETTISON THE SETTLED
LAW OF THE STATES TO AN EVEN MORE RADICAL EXTENT.  /26/

        III 

THE COURT CONCEDES THAT THE DANGERS OF SELF-CENSORSHIP ARE
INSUFFICIENT TO OVERRIDE THE STATE INTEREST IN PROTECTING THE
REPUTATION OF PRIVATE INDIVIDUALS WHO ARE BOTH MORE HELPLESS AND MORE
DESERVING OF STATE CONCERN THAT PUBLIC PERSONS WITH MORE ACCESS TO THE
MEDIA TO DEFEND THEMSELVES.  IT THEREFORE REFUSES TO CONDITION THE
PRIVATE PLAINTIFF'S RECOVERY ON A SHOWING OF INTENTIONAL OR RECKLESS
FALSEHOOD AS REQUIRED BY NEW YORK TIMES.  BUT THE COURT NEVERTHELESS
EXTENDS THE REACH OF THE FIRST AMENDMENT TO ALL DEFAMATION ACTIONS BY
REQUIRING THAT THE ORDINARY CITIZEN, WHEN LIBELED BY A PUBLICATION
DEFAMATORY ON ITS FACE, MUST PROVE SOME DEGREE OF CULPABILITY ON THE
PART OF THE PUBLISHER BEYOND THE CIRCULATION TO THE PUBLIC OF A
DAMAGING FALSEHOOD.  A RULE AT LEAST AS STRICT WOULD BE CALLED FOR
WHERE THE DEFAMATORY CHARACTER OF THE PUBLICATION IS NOT APPARENT FROM
ITS FACE.  ANTE, AT 348.  /27/  FURTHERMORE, IF THIS MAJOR HURDLE TO
ESTABLISH LIABILITY IS SURMOUNTED, THE COURT REQUIRES PROOF OF ACTUAL
INJURY TO REPUTATION BEFORE ANY DAMAGES FOR SUCH INJURY MAY BE
AWARDED. 

THE COURT PROCEEDS AS THOUYH IT WERE WRITING ON TABULA RASA AND
SUGGESTS THAT IT MUST MEDIATE BETWEEN TWO UNACCEPTABLE CHOICES--ON THE
ONE HAND, THE RIGORS OF THE NEW YORK TIMES RULE WHICH THE COURT THINKS
WOULD GIVE INSUFFICIENT RECOGNITION TO THE INTEREST OF THE PRIVATE
PLAINTIFF, AND, ON THE OTHER HAND, THE PROSPECT OF IMPOSING "LIABILITY
WITHOUT FAULT" ON THE PRESS AND OTHERS WHO ARE CHARGED WITH DEFAMATORY
UTTERANCES.  TOTALLY IGNORING HISTORY AND SETTLED FIRST AMENDMENT LAW,
THE COURT PURPORTS TO ARRIVE AT AN "EQUITABLE COMPROMISE,"  REJECTING
BOTH WHAT IT CONSIDERS FAULTLESS LIABILITY AND NEW YORK TIMES MALICE,
BUT INSISTING ON SOME INTERMEDIATE DEGREE OF FAULT.  OF COURSE, THE
COURT NECESSARILY DISCARDS THE CONTRARY JUDGMENT ARRIVED AT IN THE 50
STATES THAT THE REPUTATION INTEREST OF THE PRIVATE CITIZEN IS DESERVING
OF CONSIDERABLY MORE PROTECTION. 

THE COURT EVINCES A DEEP-SEATED ANTIPATHY TO "LIABILITY WITHOUT
FAULT."  BUT THIS CATCH-PHRASE HAS NO TALISMANIC SIGNIFICANCE AND IS
ALMOST MEANINGLESS IN THIS CONTEXT WHERE THE COURT APPEARS TO BE
ADDRESSING THOSE LIBELS AND SLANDERS THAT ARE DEFAMATORY ON THEIR FACE
AND WHERE THE PUBLISHER IS NO DOUBT AWARE FROM THE NATURE OF THE
MATERIAL THAT IT WOULD BE INHERENTLY DAMAGING TO REPUTATION.  HE
PUBLISHES NOTWITHSTANDING, KNOWING THAT HE WILL INFLICT INJURY.  WITH
THIS KNOWLEDGE, HE MUST INTEND TO INFLICT THAT INJURY, HIS EXCUSE BEING
THAT HE IS PRIVILEGED TO DO SO--THAT HE HAS PUBLISHED THE TRUTH.  BUT
AS IT TURNS OUT, WHAT HE HAS CIRCULATED TO THE PUBLIC IS A VERY
DAMAGING FALSEHOOD.  IS HE NEVERTHELESS "FAULTLESS?"  PERHAPS IT CAN BE
SAID THAT THE MISTAKE ABOUT HIS DEFENSE WAS MADE IN GOOD FAITH, BUT THE
FACT REMAINS THAT IT IS HE WHO LAUNCHED THE PUBLICATION KNOWING THAT IT
COULD RUIN A REPUTATION. 

IN THESE CIRCUMSTANCES, THE LAW HAS HERETOFORE PUT THE RISK OF
FALSEHOOD ON THE PUBLISHER WHERE THE VICTIM IS A PRIVATE CITIZEN AND NO
GROUNDS OF SPECIAL PRIVILEGE ARE INVOKED.  THE COURT WOULD NOW SHIFT
THIS RISK TO THE VICTIM, EVEN THOUGH HE HAS DONE NOTHING TO INVITE THE
CALUMNY, IS WHOLLY INNOCENT OF FAULT, AND IS HELPLESS TO AVOID HIS
INJURY.  I DOUBT THAT JURISPRUDENTIAL RESISTANCE TO LIABILITY WITHOUT
FAULT IS SUFFICIENT GROUND FOR EMPLOYING THE FIRST AMENDMENT TO
REVOLUTIONIZE THE LAW OF LIBEL, AND IN MY VIEW, THAT BODY OF LEGAL
RULES POSES NO REALISTIC THREAT TO THE PRESS AND ITS SERVICE TO THE
PUBLIC.  THE PRESS TODAY IS VIGOROUS AND ROBUST.  TO ME, IT IS QUITE
INCREDIBLE TO SUGGEST THAT THREATS OF LIBEL SUITS FROM PRIVATE CITIZENS
ARE CAUSING THE PRESS TO REFRAIN FROM PUBLISHING THE TRUTH.  I KNOW OF
NO HARD FACTS TO SUPPORT THAT PROPOSITION, AND THE COURT FURNISHES
NONE. 

THE COMMUNICATIONS INDUSTRY HAS INCREASINGLY BECOME CONCENTRATED IN
A FEW POWERFUL HANDS OPERATING VERY LUCRATIVE BUSINESSES REACHING
ACROSS THE NATION AND INTO ALMOST EVERY HOME.  /28/  NEITHER THE
INDUSTRY AS A WHOLE NOR ITS SLANDERS THAT ARE DEFAMATORY ON THEIR FACE
AND WHERE THE PUBLISHER IS NO INDIVIDUAL COMPONENTS ARE EASILY
INTIMIDATED, AND WE ARE FORTUNATE THAT THEY ARE NOT.  REQUIRING THEM TO
PAY FOR THE OCCASIONAL DAMAGE THEY DO TO PRIVATE REPUTATION WILL PLAY
NO SUBSTANTIAL PART IN THEIR FUTURE PERFORMANCE OR THEIR EXISTENCE. 

IN ANY EVENT, IF THE COURT'S PRINCIPAL CONCERN IS TO PROTECT THE
COMMUNICATIONS INDUSTRY FROM LARGE LIBEL JUDGMENTS, IT WOULD APPEAR
THAT ITS NEW REQUIREMENTS WITH RESPECT TO GENERAL AND PUNITIVE DAMAGES
WOULD BE AMPLE PROTECTION.  WHY IT ALSO FEELS COMPELLED TO ESCALATE THE
THRESHOLD STANDARD OF LIABILITY I CANNOT FATHOM, PARTICULARLY WHEN THIS
WILL ELIMINATE IN MANY INSTANCES THE PLAINTIFF'S POSSIBILITY OF
SECURING A JUDICIAL DETERMINATION THAT THE DAMAGING PUBLICATION WAS
INDEED FALSE, WHETHER OR NOT HE IS ENTITLED TO RECOVER MONEY DAMAGES. 
UNDER THE COURT'S NEW RULES, THE PLAINTIFF MUST PROVE NOT ONLY THE
DEFAMATORY STATEMENT BUT ALSO SOME DEGREE OF FAULT ACCOMPANYING IT.
THE PUBLICATION MAY BE WHOLLY FALSE AND THE WRONG TO HIM UNJUSTIFIED,
BUT HIS CASE WILL NEVERTHELESS BE DISMISSED FOR FAILURE TO PROVE
NEGLIGENCE OR OTHER FAULT ON THE PART OF THE PUBLISHER.  I FIND IT
UNACCEPTABLE TO DISTRIBUTE THE RISK IN THIS MANNER AND FORCE THE WHOLLY
INNOCENT VICTIM TO BEAR THE INJURY; FOR, AS BETWEEN THE TWO, THE
DEFAMER IS THE ONLY CULPABLE PARTY.  IT IS HE WHO CIRCULATED A
FALSEHOOD THAT HE WAS NOT REQUIRED TO PUBLISH. 

IT IS DIFFICULT FOR ME TO UNDERSTAND WHY THE ORDINARY CITIZEN SHOULD
HIMSELF CARRY THE RISK OF DAMAGE AND SUFFER THE INJURY IN ORDER TO
VINDICATE FIRST AMENDMENT VALUES BY PROTECTING THE PRESS AND OTHER FROM
LIABILITY FOR CIRCULATING FALSE INFORMATION.  THIS IS PARTICULARLY TRUE
BECAUSE SUCH STATEMENTS SERVE NO PURPOSE WHATSOEVER IN FURTHERING THE
PUBLIC INTEREST OR THE SEARCH FOR TRUTH BUT, ON THE CONTRARY, MAY
FRUSTRATE THAT SEARCH AND AT THE SAME TIME INFLICT GREAT INJURY ON THE
DEFENSELESS INDIVIDUAL.  THE OWNERS OF THE PRESS AND THE STOCKHOLDERS
OF THE COMMUNICATIONS ENTERPRISES CAN MUCH BETTER BEAR THE BURDEN.  AND
IF THEY CANNOT, THE PUBLIC AT LARGE SHOULD SOMEHOW PAY FOR WHAT IS
ESSENTIALLY A PUBLIC BENEFIT DERIVED AT PRIVATE EXPENSE. 

        IV

        A 

NOT CONTENT WITH ESCALATING THE THRESHOLD REQUIREMENTS OF
ESTABLISHING LIABILITY, THE COURT ABOLISHES THE ORDINARY DAMAGES RULE,
UNDISTURBED BY NEW YORK TIMES AND LATER CASES, THAT, AS TO LIBELS OR
SLANDERS DEFAMATORY ON THIER FACE, INJURY TO REPUTATION IS PRESUMED AND
GENERAL DAMAGES MAY BE AWARDED ALONG WITH WHATEVER SPECIAL DAMAGES MAY
BE SOUGHT.  APPARENTLY BECAUSE THE COURT FEELS THAT IN SOME UNSPECIFIED
AND UNKNOWN NUMBER OF CASES, PLAINTIFFS RECOVER WHERE THEY HAVE
SUFFERED NO INJURY OR RECOVER MORE THAN THEY DESERVE, IT DISMISSES THIS
RULE AS AN "ODDITY OF TORT LAW."  THE COURT THEREBY REFUSES IN ANY CASE
TO ACCEPT THE FACT OF WIDE DISSEMINATION OF A PER SE LIBEL AS PRIMA
FACIE PROOF OF INJURY SUFFICIENT TO SURVIVE A MOTION TO DISMISS AT THE
CLOSE OF PLAINTIFF'S CASE. 

I HAVE SAID BEFORE, BUT IT BEARS REPEATING, THAT EVEN IF THE
PLAINTIFF SHOULD RECOVER NO MONETARY DAMAGES, HE SHOULD BE ABLE TO
PREVAIL AND HAVE A JUDGMENT THAT THE PUBLICATION IS FALSE.  BUT BEYOND
THAT, COURTS AND LEGISLATURES LITERALLY FOR CENTURIES HAVE THOUGHT THAT
IN THE GENERALITY OF CASES, LIBELED PLAINTIFFS WILL BE SERIOUSLY
SHORTCHANGED IF THEY MUST PROVE THE EXTENT OF THE INJURY TO THEIR
REPUTATIONS.  EVEN WHERE LIBELS OR SLANDERS ARE NOT ON THEIR FACE
DEFAMATORY AND SPECIAL DAMAGE MUST BE SHOWN, WHEN THAT SHOWING IS MADE,
GENERAL DAMAGES FOR REPUTATION INJURY ARE RECOVERABLE WITHOUT SPECIFIC
PROOF.  /29/ 

THE COURT IS CLEARLY RIGHT WHEN AT ONE POINT IT STATES THAT "THE LAW
OF DEFAMATION IS ROOTED IN OUR EXPERIENCE THAT THE TRUTH RARELY CATCHES
UP WITH A LIE."  ANTE, AT 344, N. 9.  BUT IT IGNORES WHAT THAT
EXPERIENCE TEACHES, VIZ., THAT DAMAGE TO REPUTATION IS RECURRINGLY
DIFFICULT TO PROVE AND THAT REQUIRING ACTUAL PROOF WOULD REPEATEDLY
DESTROY ANY CHANCE FOR ADEQUATE COMPENSATION.  EMINENT AUTHORITY HAS
WARNED THAT 

"IT IS CLEAR THAT PROOF OF ACTUAL DAMAGE WILL BE IMPOSSIBLE IN A
GREAT MANY CASES WHERE, FROM THE CHARACTER OF THE DEFAMATORY WORDS AND
THE CIRCUMSTANCES OF PUBLICATION, IT IS ALL BUT CERTAIN THAT SERIOUS
HARM HAS RESULTED IN FACT."  W. PROSSER, LAW OF FACTS 112, P. 765 (4TH
ED. 1971).  /30/ 

THE COURT FEARS UNCONTROLLED AWARDS OF DAMAGES BY JURIES, BUT THAT
NOT ONLY DENIGRATES THE GOOD SENSE OF MOST JURORS--IF FAILS TO CONSIDER
THE ROLE OF TRIAL AND APPELLATE COURTS IN LIMITING EXCESSIVE JURY
VERDICTS WHERE NO REASONABLE RELATIONSHIP EXISTS BETWEEN THE AMOUNT
AWARDED AND THE INJURY SUSTAINED.  /31/  AVAILABLE INFORMATION TENDS TO
CONFIRM THAT AMERICAN COURTS HAVE ABLY DISCHARGED THIS RESPONSIBILITY. 
/32/ 

THE NEW RULE WITH RESPECT TO GENERAL DAMAGES APPEARS TO APPLY TO ALL
LIBELS OR SLANDERS, WHETHER DEFAMATORY ON THEIR FACE OR NOT, EXCEPT, I
GATHER, WHEN THE PLAINTIFF PROVES INTENTIONAL FALSEHOOD OR RECKLESS
DISREGARD.  ALTHOUGH THE IMPACT OF THE PUBLICATION ON THE VICTIM IS THE
SAME, IN SUCH CIRCUMSTANCES THE INJURY TO REPUTATION MAY APPARENTLY BE
PRESUMED IN ACCORDANCE WITH THE TRADITIONAL RULE.  WHY A DEFAMATORY
STATEMENT IS MORE APT TO CAUSE INJURY IF THE LIE IS INTENTIONAL THAT
WHEN IT ONLY NEGLIGENT, I FAIL TO UNDERSTAND.  I SUGGEST THAT JUDGES
AND JURIES WHO MUST LIVE BY THESE RULES WILL FIND THEM EQUALLY
INCOMPREHENSIBLE. 

        B 

WITH A FLOURISH OF THE PEN, THE COURT ALSO DISCARDS THE PREVAILING
RULE IN LIBEL AND SLANDER ACTIONS THAT PUNITIVE DAMAGES MAY BE AWARDED
ON THE CLASSIC GROUNDS OF COMMON-LAW MALICE, THAT IS, "'(ACTUAL MALICE'
IN THE SENSE OF ILL WILL OR FRAUD OR RECKLESS INDIFFERENCE TO
CONSEQUENCES."  C. MCCORMICK, LAW OF DAMAGES 118, P. 431 (1935); SEE
ALSO W. PROSSER, SUPRA, 113, P. 772; 1 A. HANSON, LIBEL AND RELATED
TORTS PARA. 163, P. 133 (1969); NOTE, DEVELOPMENTS IN THE LAW-
DEFAMATION, 69 HARV.L.REV.  875, 938 (1956); CAL. CIV. CODE 48A (4)(D)
(1954).  IN ITS STEAD, THE COURT REQUIRES DEFAMATION PLAINTIFFS TO SHOW
INTENTIONAL FALSEHOOD OR RECKLESS DISREGARD FOR THE TRUTH OR FALSITY OF
THE PUBLICATION.  THE COURT AGAIN COMPLAINS ABOUT SUBSTANTIAL VERDICTS
AND THE POSSIBILITY OF PRESS SELF-CENSORSHIP, SAYING THAT PUNITIVE
DAMAGES ARE MERELY "PRIVATE FINES LEVIED BY CIVIL JURIES TO PUNISH
REPREHENSIBLE CONDUCT AND TO DETER ITS FUTURE OCCURRENCE."  ANTE, AT
350.  BUT I SEE NO CONSTITUTIONAL DIFFERENCE BETWEEN PUBLISHING WITH
RECKLESS DISREGARD FOR THE TRUTH, WHERE PUNITIVE DAMAGES WILL BE
PERMITTED, AND NEGLIGENT PUBLICATION WHERE THEY WILL NOT BE ALLOWED. 
IT IS DIFFICULT TO UNDERSTAND WHAT IS CONSTITUTIONALLY WRONG WITH
ASSESSING PUNITIVE DAMAGES TO DETER A PUBLISHER FROM DEPARTING FROM
THOSE STANDARDS OF CARE ORDINARILY FOLLOWED IN THE PUBLISHING INDUSTRY,
PARTICULARLY IF COMMON-LAW MALICE IS ALSO SHOWN.     I NOTE ALSO THE
QUESTIONABLE PREMISE THAT "JURIES ASSESS PUNTIVE DAMAGES IN WHOLLY
UNPREDICTABLE AMOUNTS BEARING NO NECESSARY RELATION TO THE ACTUAL HARM
CAUSED."  IBID.  THIS REPRESENTS AN INACCURATE VIEW OF ESTABLISHED
PRACTICE, "ANOTHER OF THOSE SITUATIONS IN WHICH JUDGES, LARGELY
UNFAMILAR WITH THE RELATIVE RARE ACTIONS FOR DEFAMATION, RELY ON WORDS
WITHOUT REALLY GOING BEHIND THEM . . . ."  /33/  WHILE A JURY AWARD IN
ANY TYPE OF CIVIL CASE MAY CERTAINLY BE UNPREDICTABLE, TRIAL AND
APPELLATE COURTS HAVE BEEN INCREASINGLY VIGILANT IN ENSURING THAT THE
JURY'S RESULT IN "BASED UPON A RATIONAL CONSIDERATION OF THE EVIDENCE
AND THE PROPER APPLICATION OF THE LAW."  REYNOLDS V. PEGLER, 123
F.SUPP.  36, 39 (SDNY 1954), AFF'D, 223 F.2D 429 (CA2), CERT. DENIED,
350 U.S. 846 (1955).  SEE SUPRA, NN. 31 - 32.  MOREOVER, SOME COURTS
REQUIRE THAT PUNITIVE DAMAGES BEAR A REASONABLE RELATION TO THE
COMPENSATORY DAMAGES AWARD.  /34/  STILL OTHERS BAR COMMON-LAW PUNITIVE
DAMAGES OR CONDITION THEIR AWARD ON A REFUSAL TO PRINT A RETRACTION. 
/35/ 

"THE DANGER . . . OF IMMODERATE VERDICTS, IS CERTAINLY A REAL ONE,
AND THE CRITERION TO BE APPLIED BY THE JUDGE IN SETTING OR REDUCING THE
AMOUNT IS CONCEDEDLY A VAGUE AND SUBJECTIVE ONE.  NEVERTHELESS THE
VERDICT MAY BE TWICE SUBMITTED BY THE COMPLAINING DEFENDANT TO THE
COMMON SENSE OF TRAINED JUDICIAL MINDS, ONCE ON MOTION FOR NEW TRIAL
AND AGAIN ON APPEAL, AND IT MUST BE A RARE INSTANCE WHEN AN
UNJUSTIFIABLE AWARD ESCAPES CORRECTION."  C. MCCORMICK, SUPRA, 77, P.
278. 

THE COURT POINTS TO ABSOLUTELY NO EMPIRICAL EVIDENCE TO SUBSTANTIATE
ITS PREMISE.  FOR MY PART, I WOULD REQUIRE SOMETHING MORE SUBSTANTIAL
THAN AN UNDIFFERENTIATED FEAR OF UNDULY BURDENSOME PUNITIVE DAMAGES
AWARDS BEFORE RETOOLING THE ESTABLISHED COMMON-LAW RULE AND DEPRIVING
THE STATES OF THE OPPORTUNITY TO EXPERIMENT WITH DIFFERENT METHODS FOR
GUARDING AGAINST ABUSES. 

EVEN ASSUMING THE POSSIBILITY THAT SOME VERDICTS WILL BE
"EXCESSIVE," I CANNOT SUBSCRIBE TO THE COURT'S REMEDY.  ON ITS FACE IT
IS A CLASSIC EXAMPLE OF JUDICIAL OVERKILL.  APPARENTLY ABANDONING THE
SALUTARY NEW YORK TIMES POLICY OF CASE-BY-CASE "'INDEPENDENT
EXAMINATION OF THE WHOLE RECORD'  . . . SO AS TO ASSURE OURSELVES THAT
THE JUDGMENT DOES NOT CONSTITUTE A FORBIDDEN INTRUSION ON THE FIELD OF
FREE EXPRESSION,"  /36/  THE COURT SUBSTITUTES AN INFLEXIBLE RULE
BARRING RECOVERY OF PUNITIVE DAMAGES ABSENT PROOF OF CONSTITUTIONAL
MALICE.  THE FIRST AMENDMENT IS A MAJESTIC STATEMENT OF A FREE PEOPLE'S
DEDICATION TO "UNINHIBITED, ROBUST, AND WIDE-OPEN" DEBATE ON PUBLIC
ISSUES, /37/  BUT WE DO IT A GRAVE DISSERVICE WHEN WE NEEDLESSLY SPEND
ITS FORCE.  /38/  FOR ALMOST 200 YEARS, PUNITIVE DAMAGES AND THE FIRST
AMENDMENT HAVE PEACEFULLY COEXISTED.  THERE HAS BEEN NO DEMONSTRATION
THAT STATE LIBEL LAWS AS THEY RELATE TO PUNITIVE DAMAGES NECESSITATE
THE MAJORITY'S EXTREME RESPONSE.  I FEAR THAT THOSE WHO READ THE
COURT'S DECISION WILL FIND ITS WORDS INAUDIBLE, FOR THE COURT SPEAKS
"ONLY (WITH) A VOICE OF POWER, NOT OF REASON."  MAPP V. OHIO, 367 U.S.
643, 686 (1961) (HARLAN, J., DISSENTING). 

  V 

IN DISAGREEING WITH THE COURT ON THE FIRST AMENDMENT'S REACH IN THE
AREA OF STATE LIBEL LAWS PROTECTING NONPUBLIC PERSONS, I DO NOT
REPUDIATE THE PRINCIPLE THAT THE FIRST AMENDMENT "RESTS ON THE
ASSUMPTION THAT THE WIDEST POSSIBLE DISSEMINATION OF INFORMATION FROM
DIVERSE AND ANTAGONISTIC SOURCES IS ESSENTIAL TO THE WELFARE OF THE
PUBLIC, THAT A FREE PRESS IS A CONDITION OF A FREE SOCIETY." 
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 20 (1945); SEE ALSO
MIAMI HERALD PUBLISHING CO. V. TORNILLO, ANTE, AT 260 (WHITE, J.,
CONCURRING).  I CONTINUE TO SUBSCRIBE TO NEW YORK TIMES AND THOSE
DECISIONS EXTENDING ITS PROTECTION TO DEFAMATORY FALSEHOODS ABOUT
PUBLIC PERSONS.  MY QUARREL WITH THE COURT STEMS FROM ITS WILLINGNESS
"TO SACRIFICE GOOD SENSE TO A SYLLOGISM"  /39/  --TO FIND IN THE NEW
YORK TIMES DOCTRINE AN INFINITE ELASTICITY.  UNFORTUNATELY, THIS
EXPANSION IS THE LATEST MANIFESTATION OF THE DESTRUCTIVE POTENTIAL OF
ANY GOOD IDEA CARRIED OUT TO ITS LOGICAL EXTREME. 

RECOVERY UNDER COMMON-LAW STANDARDS FOR DEFAMATORY FALSEHOODS ABOUT
A PRIVATE INDIVIDUAL, WHO ENJOYS NO "GENERAL FAME OR NOTORIETY IN THE
COMMUNITY,"  WHO IS NOT "PERVASIVELY) INVOLVED) IN THE AFFAIRS OF
SOCIETY," AND WHO DOES NOT "THRUST HIMSELF INTO THE VORTEX OF (A GIVEN)
PUBLIC ISSUE . . . IN AN ATTEMPT TO INFLUENCE ITS OUTCOME,"  /40/  IS
SIMPLY NOT FORBIDDEN BY THE FIRST AMENDMENT.  A DISTINGUISHED PRIVATE
STUDY GROUP PUT IT THIS WAY: 

     "ACCOUNTABILITY, LIKE SUBJECTION TO LAW, IS NOT NECESSARILY A

  NET SUBTRACTION FROM LIBERTY."  "THE FIRST AMENDMENT WAS INTENDED

  TO GUARANTEE FREE EXPRESSION, NOT TO CREATE A PRIVILEGED

  INDUSTRY."  COMMISSION ON FREEDOM OF THE PRESS, A FREE AND

  RESPONSIBLE PRESS 130, 81 (1947). 

I FAIL TO SEE HOW THE QUALITY OR QUANTITY OF PUBLIC DEBATE WILL BE
PROMOTED BY FURTHER EMASCULATION OF STATE LIBEL LAWS FOR THE BENEFIT OF
THE NEWS MEDIA.  /41/  IF ANYTHING, THIS TREND MAY PROVOKE A NEW AND
RADICAL IMBALANCE IN THE COMMUNICATIONS PROCESS.  CF. BARRON, ACCESS TO
THE PRESS--A NEW FIRST AMENDMENT RIGHT, 80 HARV.L.REV.  1641, 1657
(1967).  IT IS NOT AT ALL INCONCEIVABLE THAT VIRTUALLY UNRESTRAINED
DEFAMATORY REMARKS ABOUT PRIVATE CITIZENS WILL DISCOURAGE THEM FROM
SPEAKING OUT AND CONCERNING THEMSELVES WITH SOCIAL PROBLEMS.  THIS
WOULD TURN THE FIRST AMENDMENT ON ITS HEAD.  NOTE, THE SCOPE OF FIRST
AMENDMENT PROTECTION FOR GOOD-FAITH DEFAMATORY ERROR, 75 YEAL L.J. 642,
649 (1966); MERIN, 11 WM. & MARY L.REV., AT THE FASCISTS' EFFECTIVE USE
OF DEFAMATORY ATTACKS ON THEIR OPPONENTS, COMMENTED:  "THUS IT IS THAT
THE LAW OF LIBEL, WITH ITS ECCLESIASTIC BACKGROUND AND DOMESTIC
CHARACTER, ITS AURA OF HEART-BALM SUITS AND CRUSADING NINETEENTH
CENTURY EDITORS, BECOMES SUDDENLY IMPORTANT FOR MODERN DEMOCRATIC
SURVIVAL."  DEMOCRACY AND DEFAMATION:  FAIR GAME AND FAIR COMMENT I, 42
COL.L.REV.  1085, 1088 (1942). 

THIS CASE ULTIMATELY COMES DOWN TO THE IMPORTANCE THE COURT ATTACHES
TO SOCIETY'S "PERVASIVE AND STRONG INTEREST IN PREVENTING AND
REDRESSING ATTACKS UPON REPUTATION."  ROSENBLATT V. BAER, 383 U.S.,AT
86.  FROM ALL THAT I HAVE SEEN, THE COURT HAS MISCALCULATED AND
DENIGRATES THAT INTEREST AT A TIME WHEN ESCALATING ASSAULTS ON
INDIVIDUALITY AND PERSONAL DIGNITY COUNSEL OTHERWISE.  /42/  AT THE
VERY LEAST, THE ISSUE IS HIGHLY DEBATABLE, AND THE COURT HAS NOT
CARRIED ITS HEAVY BURDEN OF PROOF TO JUSTIFY TAMPERING WITH STATE LIBEL
LAWS.  /43/ 

WHILE SOME RISK OF EXPOSURE "IS A CONCOMITANT OF LIFE IN A CIVILIZED
COMMUNITY,"  TIME, INC. V. HILL, 385 U.S. 374, 388 (1967), THE PRIVATE
CITIZEN DOES NOT BARGAIN FOR DEFAMATORY FALSEHOODS.  NOR IS SOCIETY
POWERLESS TO VINDICATE UNFAIR INJURY TO HIS REPUTATION. 

     "IT IS A FALLACY . . . TO ASSUME THAT THE FIRST AMENDMENT IS

  THE ONLY GUIDEPOST IN THE AREA OF STATE DEFAMATION LAWS.  IT IS

  NOT . . . 

     "THE RIGHT OF A MAN TO THE PROTECTION OF HIS OWN REPUTATION

  FROM UNJUSTIFIED INVASION AND WRONGFUL HURT REFLECTS NO MORE THAN

  OUR BASIC CONCEPT OF THE ESSENTIAL DIGNITY AND WORTH OF EVERY

  HUMAN BEING--A CONCEPT AT THE ROOT OF ANY DECENT SYSTEM OF

  ORDERED LIBERTY.  THE PROTECTION OF PRIVATE PERSONALITY, LIKE THE

  PROTECTION OF LIFE ITSELF, IS LEFT PRIMARILY TO THE INDIVIDUAL

  STATES UNDER THE NINTH AND TENTH AMENDMENTS.  BUT THIS DOES NOT

  MEAN THAT THE RIGHT IS ENTITLED TO ANY LESS RECOGNITION BY THIS

  COURT AS A BASIC OF OUR CONSTITUTIONAL SYSTEM."  ROSENBLATT V.

  BAER, SUPRA, AT 92 (STEWART, J., CONCURRING). 

THE CASE AGAINST RAZING STATE LIBEL LAWS IS COMPELLING WHEN
CONSIDERED IN LIGHT OF THE INCREASINGLY PROMINENT ROLE OF MASS MEDIA IN
OUR SOCIETY AND THE AWESOME POWER IT HAS PLACED IN THE HANDS OF A
SELECT FEW.  /44/  SURELY, OUR POLITICAL "SYSTEM CANNOT FLOURISH IF
REGIMENTATION TAKES HOLD."  PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S.
451, 469 (1952) (DOUGLAS, J., DISSENTING).  NOR CAN IT SURVIVE IF OUR
PEOPLE ARE DEPRIVED OF AN EFFECTIVE METHOD OF VINDICATING THEIR
LEGITIMATE INTEREST IN THEIR GOOD NAMES.  /46/  FREEDOM AND HUMAN
DIGNITY AND DECENCY ARE NOT ANTITHETICAL.  INDEED, THEY CANNOT SURVIVE
WITHOUT EACH OTHER.  BOTH EXIST SIDE-BY-SIDE IN PRECARIOUS BALANCE, ONE
ALWAYS THREATENING TO OVERWHELM THE OTHER.  OUR EXPERIENCE AS A NATION
TESTIFIES TO THE ABILITY OF OUR DEMOCRATIC INSTITUTIONS TO HARNESS THIS
DYNAMIC TENSION.  ONE OF THE MECHANISMS SEIZED UPON BY THE COMMON LAW
TO ACCOMMODATE THESE FORCES WAS THE CIVIL LIBEL ACTION TRIED BEFORE A
JURY OF AVERAGE CITIZENS.  AND IT HAS ESSENTIALLY FULFILLED ITS ROLE. 
NOT BECAUSE IT IS NECESSARILY THE BEST OR ONLY ANSWER, BUT BECAUSE 

"THE JURISTIC PHILOSOPHY OF THE COMMON LAW IS AT BOTTOM THE
PHILOSOPHY OF PRAGMATISM.  ITS TRUTH IS RELATIVE, NOT ABSOLUTE.  THE
RULE THAT FUNCTIONS WELL PRODUCES A TITLE DEED TO RECOGNITION."  B.
CARDOZO, SELECTED WRITINGS 149 (HALL ED. 1947). 

IN OUR FEDERAL SYSTEM, THERE MUST BE ROOM FOR ALLOWING THE STATES TO
TAKE DIVERSE APPROACHES TO THESE VEXING QUESTIONS.  WE SHOULD "CONTINUE
TO FORBEAR FROM FETTERING THE STATES WITH AN ADAMANT RULE WHICH MAY
EMBARRASS THEM IN COPING WITH THEIR OWN PECULIAR PROBLEMS . . . ." 
MAPP V. OHIO, 367 U.S.AT 681 (HARLAN, J., DISSENTING); SEE ALSO
MURNAGHAN, FROM FIGMENT TO FICTION TO PHILOSOPHY--THE REQUIREMENT OF
PROOF OF DAMAGES IN LIBEL ACTIONS, 22 CATH.U.L.REV.  1, 38 (1972).  CF.
YOUNGER V. HARRIS, 401 U.S. 37, 44 - 45 (1971).  WHETHER OR NOT THE
COURSE FOLLOWED BY THE MAJORITY IS WISE, AND I HAVE INDICATED MY DOUBTS
THAT IT IS, OUR CONSTITUTIONAL SCHEME COMPELS A PROPER RESPECT FOR THE
ROLE OF THE STAES IN ACQUITTING THEIR DUTY TO OBEY THE CONSTITUTION. 
FINDING NO EVIDENCE THAT THEY HAVE SHIRKED THIS RESPONSIBILITY,
PARTICULARLY WHEN THE LAW OF DEFAMATION IS EVEN NOW IN TRANSITION, I
WOULD AWAIT SOME DEMONSTRATION OF THE DIMINUTION OF FREEDOM OF
EXPRESSION BEFORE ACTING. 

FOR THE FOREGOING REASONS, I WOULD REVERSE THE JUDGMENT OF THE COURT
OF APPEALS AND REINSTATE THE JURY'S VERDICT. 

/1/  RESTATEMENT OF TORTS 559 (1938); SEE ALSO W. PROSSER, LAW OF
TORTS 111, P. 739 (4TH ED. 1971); 1 A. HANSON, LIBEL AND RELATED TORTS
PARA. 14, PP. 21 - 22 (1969); 1 F. HARPER & F. JAMES, THE LAW OF TORTS
5.1, PP. 349 - 350 (1956). 

/2/  THE OBSERVATIONS IN PART I OF THIS OPINION AS TO THE CURRENT
STATE OF THE LAW OF DEFAMATION IN THE VARIOUS STATES ARE PARTIALLY
BASED UPON THE RESTATEMENT OF TORTS, FIRST PUBLISHED IN 1938, AND
TENTATIVE DRAFTS NOS. 11 AND 12 OF RESTATEMENT OF TORTS (SECOND),
RELEASED IN 1965 AND 1966, RESPECTIVELY.  THE RECENT TRANSMITTAL OF
TENTATIVE DRAFT NO. 20, DATED APRIL 25, 1974, TO THE AMERICAN LAW
INSTITUTE FOR ITS CONSIDERATION HAS RESULTED IN THE ELIMINATION OF MUCH
OF THE DISCUSSION OF THE PREVAILING DEFAMATION RULES AND THE SUGGESTED
CHANGES IN MANY OF THE RULES THEMSELVES PREVIOUSLY FOUND IN THE EARLIER
TENTATIVE DRAFTS.  THIS DEVELOPMENT APPEARS TO HAVE BEEN LARGELY
INFLUENCED BY THE DRAFTSMEN'S "SENSE FOR WHERE THE LAW OF THIS
IMPORTANT SUBJECT SHOULD BE THOUGHT TO STAND."  RESTATEMENT (SECOND) OF
TORTS, P. VII (TENT.  DRAFT NO. 20, APR. 25, 1974).  IT IS EVIDENT
THAT, TO A LARGE EXTENT, THESE LATEST VIEWS ARE COLORED BY THE
PLURALITY OPINION IN ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29
(1971).  SEE, E.G., RESTATEMENT (SECOND) OF TORTS, SUPRA, AT XIII, 569,
580, 581A, 581B, 621.  THERE IS NO INDICATION IN THE LATEST DRAFT,
HOWEVER, THAT THE CONCLUSIONS REACHED IN TENTATIVE DRAFTS NOS. 11 AND
12 ARE NOT AN ACCURATE REFLECTION OF THE CASE LAW IN THE STATES IN THE
MID-1960'S PRIOR TO THE DEVELOPMENTS OCCASIONED BY THE PLURALITY
OPINION IN ROSENBLOOM.  SEE INFRA, AT 374 - 375. 

/3/  SEE ALSO W. PROSSER, SUPRA, N. 1, 112, P. 752 AND N. 85;
MURNAGHAN, FROM FIGMENT TO FICTION TO PHILOSOPHY--THE REQUIREMENT OF
PROOF OF DAMAGES IN LIBEL ACTIONS, 22 CATH.U.L.REV.  1, 11 - 13
(1972). 

/4/  PROOF OF THE DEFAMATION ITSELF ESTABLISHED THE FACT OF INJURY
AND THE EXISTENCE OF SOME DAMAGE TO THE RIGHT OF REPUTATION, AND THE
JURY WAS PERMITTED, EVEN WITHOUT ANY OTHER EVIDENCE, TO ASSESS DAMAGES
THAT WERE CONSIDERED TO BE THE NATURAL OR PROBABLE CONSEQUENCES OF THE
DEFAMATORY WORDS.  RESTATEMENT OF TORTS 621, COMMENT A, P. 314 (1938);
SEE ALSO C. GATLEY, LIBEL AND SLANDER 1004 (6TH ED. 1967); M. NEWELL,
SLANDER AND LIBEL 721, P. 810 (4TH ED. 1924); SEE GENERALLY C.
MCCORMICK, LAW OF DAMAGES 116, PP. 422 - 430 (1935).  IN THIS RESPECT,
THEREFORE, THE DAMAGES WERE PRESUMED BECAUSE OF THE IMPOSSIBILITY OF
AFFIXING AN EXACT MONETARY AMOUNT FOR PRESENT AND FUTURE INJURY TO THE
PLAINTIFF'S REPUTATION, WOUNDED FEELINGS AND HUMILIATION, LOSS OF
BUSINESS, AND ANY CONSEQUENTIAL PHYSICAL ILLNESS OR PAIN.  IBID. 

/5/  SEE ALSO PROSSER, SUPRA, N. 1, 112, P. 761; HARPER & JAMES,
SUPRA, N. 1, 5.14, P. 388; NOTE, DEVELOPMENTS IN THE LAW--DEFAMATION,
69 HARV.L.REV.  875, 939 - 940 (1956). 

/6/  ALSO ACTIONABLE PER SE WERE THOSE LIBELS WHERE THE IMPUTATION,
ALTHOUGH NOT APPARENT FROM THE MATERIAL ITSELF, WOULD HAVE BEEN SLANDER
PER SE IF SPOKEN RATHER THAN WRITTEN. 

/7/  RESTATEMENT (SECOND) OF TORTS 569, PP. 29 - 45, 47 - 48 (TENT. 
DRAFT NO. 12, APR. 27, 1966); SEE ALSO MURNAGHAN, SUPRA, N. 3.     /8/
APPLYING SETTLED ILLINOIS LAW, THE DISTRICT COURT IN THIS CASE HELD
THAT IT IS LIBEL PER SE TO LABEL SOMEONE A COMMUNIST.  306 F.SUPP.  310
(ND ILL. 1969). 

/9/  THIS APPEARS TO HAVE BEEN THE LAW IN ILLINOIS AT THE TIME GERTZ
BROUGHT HIS LIBEL SUIT.  SEE E.G., BREWER V. HEARST PUBLISHING CO., 185
F.2D 846 (CA7 1950); HOTZ V. ALTON TELEGRAPH PRINTING CO., 324
ILL.APP.  1, 57 N.3.2D 137 (1944); COOPER V. ILLINOIS PUBLISHING &
PRINTING CO., 218 ILL.APP.  95 (1920). 

/10/  SEE, E.G., WEST V. NORTHERN PUBLISHING CO., 487 P.2D 1304,
1305 - 1306 (ALASKA 1971) (ARTICLE LINKING OWNERS OF TAXICAB COMPANIES
TO ILLEGAL LIQUOR SALES TO MINORS); GALLMAN V. CARNES, 254 ARK. 987,
992, 497 S.W.2D 47, 50 (1973) (MATTER CONCERNING STATE LAW SCHOOL
PROFESSOR AND ASSISTANT DEAN); BELLI V. CURTIS PUBLISHING CO., 25
CAL.APP.3D.  384, 102 CAL.RPTR.  122 (1972) (ARTICLE CONCERNING
ATTORNEY WITH NATIONAL REPUTATION); MORIARTY V. LIPPE, 162 CONN. 371,
378 - 379, 294 A.2D 326, 330 - 331 (1972) (PUBLICATION ABOUT CERTAIN
POLICE OFFICERS); FIRESTONE V. TIME, INC., 271 SO.2D 745, 750 - 751
(FLA. 1972) (DIVORCE OF PROMINENT CITIZEN NOT A MATTER OF LEGITIMATE
PUBLIC CONCERN); STATE V. SNYDER, 277 SO.2D 660, 666 - 668 (LA. 1973)
(CRIMINAL DEFAMATION PROSECUTION OF A DEFEATED MAYORAL CANDIDATE FOR
STATEMENTS MADE ABOUT ANOTHER CANDIDATE); TWOHIG V. BOSTON HERALD
TRAVELER CORP., . . . MASS. . . ., . . ., 291 N.E.2D 398, 400 - 401
(1973) (ARTICLE CONCERNING A CANDIDATE'S VOTES IN THE LEGISLATURE);
PRIESTLEY V. HASTINGS & SONS PUBLISHING CO. OF LYNN, 360 MASS. 118, 271
N.E.2D 628 (1971) (ARTICLE ABOUT AN ARCHITECT COMMISSIONED BY A TOWN TO
BUILD A SCHOOL); HARNISH V. HERALD-MAIL CO., INC., 264 MD. 326, 334 -
336, 286 A.2D 146, 151 (1972) (ARTICLE CONCERNING SUBSTANDARD RENTAL
PROPERTY OWNED BY A MEMBER OF A CITY HOUSING AUTHORITY); STANDKE V. B.
E. DARBY & SONS, INC., 291 MINN. 468, 476 - 477, 193 N.W.2D 139, 145
(1971) (NEWSPAPER EDITORIAL CONCERNING PERFORMANCE OF GRAND JURORS);
WHITMORE V. KANSAS CITY STAR CO., 499 S.W.2D 45, 49 (MO. CT. APP. 1973)
(ARTICLE CONCERNING JUVENILE OFFICER, THE OPERATION OF A DETENTION HOME
AND A GRAND JURY INVESTIGATION); TRAILS WEST, INC. V. WOLFF, 32 N.Y.2D
207, 214 - 218, 298 N.E.2D 52, 55 - 58 (1973) (SUIT AGAINST A
CONGRESSMAN FOR AN INVESTIGATION INTO THE DEATH OF SCHOOL CHILDREN IN A
BUS ACCIDENT); TWENTY-FIVE EAST 40TH STREET RESTAURANT CORP. V. FORBES,
INC., 30 N.Y.2D 595, 282 N.E.2D 118 (1972) (MAGAZINE ARTICLE CONCERNING
A RESTAURANT'S FOOD); KENT V. CITY OF BUFFALO, 29 N.Y.2D 818, 277
N.E.2D 669 (1971) (TELEVISION STATION FILM OF PLAINTIFF AS A CAPTURED
ROBBER); FRINK V. MCELDOWNEY, 29 N.Y.2D 720, 275 N.E.2D 337 (1971)
(ARTICLE CONCERNING AN ATTORNEY REPRESENTING A TOWN); MEAD V. HORVITZ
PUBLISHING CO. (9TH DIST. OHIO CT. APP. JUNE 13) (UNPUBLISHED), CERT.
DENIED, 416 U.S. 985 (1974) (FINANCIAL NUMEROUS LOCAL CONTRACTORS);
WASHINGTON V. WORLD PUBLISHING CO., 506 P.2D 913 (OKLA. 1973) (ARTICLE
ABOUT CONTRACT DISPUTE BETWEEN A CANDIDATE FOR UNITED STATES SENATE AND
HIS PARTY'S COUNTY CHAIRMAN); MATUS V. TRIANGLE PUBLICATIONS, INC., 445
PA. 384, 395 - 399, 286 A.2D 357, 363 - 365 (1971) (RADIO "TALK SHOW"
HOST'S DISCUSSION OF GROSS OVERCHARGING FOR SNOWPLOWING A DRIVEWAY NOT
CONSIDERED AN EVENT OF PUBLIC OR GENERAL CONCERN); AUTOBUSES
INTERNACIONALES S. DE R.L., LTD. V. EL CONTINENTAL PUBLISHING CO., 483
S.W.2D 506 (TEX. CT. CIV. APP. 1972) (NEWSPAPER ARTICLE CONCERNING A
BUS COMPANY'S RAISING OF FARES WITHOUT NOTICE AND IN VIOLATION OF LAW);
SAUNDERS V. HARRIS, 213 VA. 369, 372 - 373, 192 S.W.2D 754, 757 - 758
(1972) (ARTICLE CONCERNING ENGLISH PROFESSOR AT A COMMUNITY COLLEGE);
OLD DOMINION BRANCH NO. 496 V. AUSTIN, 213 VA. 377, 192 S.E.2D 737
(1972), REV'D, ANTE, P. 264 (PLAINTIFF'S FAILURE TO JOIN A LABOR UNION
CONSIDERED NOT AN ISSUE OF PUBLIC OR GENERAL CONCERN); CHASE V. DAILY
RECORD, INC., 83 WASH. 2D 37, 41, 515 P.2D 154, 156 (1973) (ARTICLE
CONCERNING PORT DISTRICT COMMISSIONER); MILLER V. ARGUS PUBLISHING CO.,
79 WASH.2D 816, 827, 490 P.2D 101, 109 (1971) (ARTICLE CONCERNING THE
BACKER OF POLITICAL CANDIDATES); POLZIN V. HELMBRECHT, 54 WIS.2D 578,
586, 196 N.W.2D 685, 690 (1972) (LETTER TO EDITOR OF NEWSPAPER
CONCERNING A REPORTER AND THE FINANCING OF POLLUTION CONTROL
MEASURES). 

THE FOLLOWING UNITED STATES COURTS OF APPEALS HAVE ADOPTED THE
PLURALITY OPINION IN ROSENBLOOM:  CANTRELL V. FOREST CITY PUBLISHING
CO., 484 F.2D 150 (CA6 1973) (ARTICLE CONCERNING FAMILY MEMBERS OF THE
VICTIM OF A HIGHLY PUBLICIZED BRIDGE DISASTER NOT ACTIONABLE ABSENT
PROOF OF ACTUAL MALICE); PORTER V. GUAM PUBLICATIONS, INC., 475 F.2D
744, 745 (CA9 1973) (ARTICLE CONCERNING CITIZEN'S ARREST FOR THEFT OF A
CASH BOX CONSIDERED AN EVENT OF GENERAL OR PUBLIC INTEREST); CERVANTES
V. TIME, INC., 464 F.2D 986, 991 (CA8 1972) (ARTICLE CONCERNING MAYOR
AND ALLEGED ORGANIZED CRIME CONNECTIONS CONCEDED TO BE A MATTER OF
PUBLIC OR GENERAL CONCERN); FIRESTONE V. TIME, INC., 460 F.2D 712 (CA5
1972) (MAGAZINE ARTICLE CONCERNING PROMINENT CITIZEN'S USE OF
DETECTIVES AND ELECTRONIC SURVEILLANCE IN CONNECTION WITH A DIVORCE);
DAVIS V. NATIONAL BROADCASTING CO., 447 F.2D 981 (CA5 1971), AFF'G 320
F.SUPP.  1070 (ED LA. 1970) (TELEVISION REPORT ABOUT A PERSON CAUGHT UP
IN THE EVENTS SURROUNDING THE ASSASSINATION OF PRESIDENT KENNEDY
CONSIDERED A MATTER OF PUBLIC INTEREST).  HOWEVER, AT LEAST ONE COURT
OF APPEALS, FACED WITH AN APPEAL FROM SUMMARY JUDGMENT IN FAVOR OF A
PUBLISHER IN A DIVERSITY LIBEL SUIT BROUGHT BY A PHILADELPHIA RETAILER,
HAS EXPRESSED "DISCOMFORT IN ACCEPTING THE ROSENBLOOM PLURALITY OPINION
AS A DEFINITIVE STATEMENT OF THE APPROPRIATE LAW . . . ."  GORDON V.
RANDOM HOUSE, INC., 486 F.2D 1356, 1359 (CA3 1973). 

AS PREVIOUSLY DISCUSSED IN N. 2, SUPRA, THE LATEST PROPOSED DRAFT OF
RESTATEMENT (SECOND) OF TORTS SUBSTANTIALLY REFLECTS THE VIEWS OF THE
ROSENBLOOM PLURALITY.  IT ALSO ANTICIPATES "THAT THE SUPREME COURT WILL
HOLD THAT STRICT LIABILITY FOR DEFAMATION IS INCONSISTENT WITH THE FREE
SPEECH PROVISION OF THE FIRST AMENDMENT . . .," RESTATEMENT (SECOND) OF
TORTS 569, P. 59 (TENT.  DRAFT NO. 20, APR. 25, 1974), AS WELL AS THE
DEMISE OF PRE-ROSENBLOOM DAMAGES RULES.  SEE ID., 621, PP. 285 - 288. 

/11/  MERIN, LIBEL AND THE SUPREME COURT, 11 WM. & MARY L. REV. 371,
373 (1969). 

/12/  A. SUTHERLAND, CONSTITUTIONALISM IN AMERICA:  ORIGIN AND
EVOLUTION OF ITS FUNDAMENTAL IDEAS 118 - 119 (1965). 

/13/  SEE GENERALLY L. LEVY, LEGACY OF SUPPRESSION:  FREEDOM OF
SPEECH AND PRESS IN EARLY AMERICAN HISTORY (1960). 

/14/  THE MEN WHO WROTE AND ADOPTED THE FIRST AMENDMENT WERE STEEPED
IN THE COMMON-LAW TRADITION OF ENGLAND.  THEY READ BLACKSTONE, "A
CLASSIC TRADITION OF THE BAR IN THE UNITED STATES" AND "THE ORACLE OF
THE COMMON LAW IN THE MINDS OF THE AMERICAN FRAMERS . . .."  J. HURST,
THE GROWTH OF AMERICAN LAW:  THE LAW MAKERS 257 (1950); LEVY, SUPRA, N.
13, AT 13; SEE ALSO SUTHERLAND, SUPRA, N. 12, AT 124 - 125; SCHICK V.
UNITED STATES, 195 U.S. 65, 69 (1904).  FROM HIM THEY LEARNED THAT THE
MAJOR FUNCTION OF SPEECH AND PRESS WAS TO PREVENT PRIOR RESTRAINTS, THE
PUBLISHER LATER BEING SUBJECT TO LEGAL ACTION IF HIS PUBLICATION WAS
INJURIOUS.  4 W. BLACKSTONE, COMMENTARIES* 150 - 153. 

/15/  SEE ALSO MEIKLEJOHN, THE FIRST AMENDMENT IS AN ABSOLUTE, 1961
SUP.CT.REV.  245, 264:  "FIRST, THE FRAMERS INITIATED A POLITICAL
REVOLUTION WHOSE DEVELOPMENT IS STILL IN PROCESS THROUGHOUT THE WORLD. 
SECOND, LIKE MOST REVOLUTIONARIES, THE FRAMERS COULD NOT FORESEE THE
SPECIFIC ISSUES WHICH WOULD ARISE AS THEIR 'NOVEL IDEA'  EXERCISED ITS
DOMINATION OVER THE GOVERNING ACTIVITIES OF A RAPIDLY DEVELOPING NATION
IN A RAPIDLY AND FUNDAMENTALLY CHANGING WORLD.  IN THAT SENSE, THE
FRAMERS DID NOT KNOW WHAT THEY WERE DOING.  AND IN THE SAME SENSE, IT
IS STILL TRUE THAT, AFTER TWO CENTURIES OF EXPERIENCE, WE DO NOT KNOW
WHAT THEY WERE DOING, OR WHAT WE OURSELVES ARE NOW DOING. 

"IN A MORE ABSTRACT AND MORE SIGNIFICANT SENSE, HOWEVER, BOTH THEY
AND WE HAVE BEEN AWARE THAT THE ADOPTION OF THE PRINCIPLE OF SELF
GOVERNMENT BY 'THE PEOPLE' OF THIS NATION SET LOOSE UPON US AND UPON
THE WORLD AT LARGE AN IDEA WHICH IS STILL TRANSFORMING MEN'S
CONCEPTIONS OF WHAT THEY ARE AND HOW THEY MAY BEST BE GOVERNED." 

/16/  SEE BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 272 (1952) (BLACK,
J., DISSENTING).  BRANT, WHO INTERPRETS THE FRAMERS' INTENTION MORE
LIBERALLY THAN CHAFEE, NEVERTHELESS SAW THE FREE SPEECH PROTECTION AS
BEARING UPON CRITICISM OF GOVERNMENT AND OTHER POLITICAL SPEECH.  I.
BRANT, THE BILL OF RIGHTS 236 (1965). 

/17/  Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 14 (1954). 

/18/  SEE 1 ANNALS OF CONG. 729 - 789 (1789).  SEE ALSO BRANT,
SUPRA, N. 16, AT 224; LEVY, SUPRA, N. 13, AT 214, 224. 

/19/  MERIN, SUPRA, N. 11, AT 377.  FRANKLIN, FOR EXAMPLE, OBSERVED:
"IF BY THE LIBERTY OF THE PRESS WERE UNDERSTOOD MERELY THE LIBERTY OF
DISCUSSING THE PROPRIETY OF PUBLIC MEASURES AND POLITICAL OPINIONS, LET
US HAVE AS MUCH OF IT AS YOU PLEASE:  BUT IF IT MEANS THE LIBERTY OF
AFFRONTING, CALUMNIATING, AND DEFAMING ONE ANOTHER, I, FOR MY PART, OWN
MYSELF WILLING TO PART WITH MY SHARE OF IT WHEN OUR LEGISLATORS SHALL
PLEASE SO TO ALTER THE LAW, AND SHALL CHEERFULLY CONSENT TO EXCHANGE MY
LIBERTY OF ABUSING OTHERS FOR THE PRIVILEGE OF NOT BEING ABUS'D
MYSELF."  10 B. FRANKLIN, WRITINGS 38 (SMYTH ED. 1907). 

/20/  JEFFERSON'S NOTED OPPOSITION TO PUBLIC PROSECUTIONS FOR LIBEL
OF GOVERNMENT FIGURES DID NOT EXTEND TO DEPRIVING THEM OF PRIVATE LIBEL
ACTIONS.  MOTT, SUPRA, AT 43.  THERE IS EVEN A STRONG SUGGESTION THAT
HE FAVORED STATE PROSECUTIONS.  E. HUDON, FREEDOM OF SPEECH AND PRESS
IN AMERICAN 47 - 48 (1963). 

/21/  FOR FURTHER EXPRESSION OF THE GENERAL PROPOSITION THAT LIBELS
ARE NOT PROTECTED BY THE FIRST AMENDMENT, SEE KONIGSBERG V. STATE BAR
OF CALIFORNIA, 366 U.S. 36, 49 - 50 AND N. 10 (1961); TIMES FILM CORP.
V. CITY OF CHICAGO, 365 U.S. 43, 48 (1961); PENNEKAMP V. FLORIDA, 328
U.S. 331, 348 - 349 (1946); CF. PARIS ADULT THEATRE I V. SLATON, 413
U.S. 49, 67 (1973); STANLEY V. GEORGIA, 394 U.S. 557, 561 N. 5 (1969). 

/22/ SEE LEVY, SUPRA, N. 13, AT 247 - 248. 

/23/  SEE, E.G., ABRAMS V. UNITED STATES, 250 U.S. 616, 630 (1919)
(HOLMES, J., DISSENTING). 

/24/  KALVEN, THE NEW YORK TIMES CASE:  A NOTE ON "THE CENTRAL
MEANING OF THE FIRST AMENDMENT," 1964 SUP.CT.REV.  191, 208 - 209. 

/25/  "THE LANGUAGE OF THE FIRST AMENDMENT IS TO BE READ NOT AS
BARREN WORDS FOUND IN A DICTIONARY BUT AS SYMBOLS OF HISTORIC
EXPERIENCE ILLUMINED BY THE PRESUPPOSITIONS OF THOSE WHO EMPLOYED THEM
. . . . AS IN THE CASE OF EVERY OTHER PROVISION OF THE CONSTITUTION
THAT IS NOT CRYSTALLIZED BY THE NATURE OF ITS TECHNICAL CONCEPTS, THE
FACT THAT THE FIRST AMENDMENT IS NOT SELF-DEFINING AND SELF-ENFORCING
NEITHER IMPAIRS ITS USEFULNESS NOR COMPELS ITS PARALYSIS AS A LIVING
INSTRUMENT."  DENNIS V. UNITED STATES, 341 U.S. 494, 523 (1951)
(FRANKFURTER, J., CONCURRING). 

/26/  "(THE LAW OF DEFAMATION HAS BEEN AN INTEGRAL PART OF THE LAWS
OF ENGLAND, THE COLONIES AND THE STATES SINCE TIME IMMEMORIAL.  SO MANY
ACTIONS HAVE BEEN MAINTAINED AND JUDGMENTS RECOVERED UNDER THE VARIOUS
LAWS OF LIBEL THAT THE CONSTITUTIONAL VALIDITY OF LIBEL ACTIONS COULD
BE DENIED ONLY BY A COURT WILLING TO HOLD ALL OF ITS PREDECESSORS WERE
WRONG IN THEIR INTERPRETATION OF THE FIRST AMENDMENT AND THAT TWO
HUNDRED YEARS OF PRECEDENTS SHOULD BE OVERRULED."  RUTLEDGE, THE LAW OF
DEFAMATION:  RECENT DEVELOPMENTS, 32 ALABAMA LAWYER 409, 410 (1971). 

THE PREVAILING COMMON-LAW LIBEL RULES IN THIS COUNTRY HAVE REMAINED
IN ENGLAND AND THE COMMONWEALTH NATIONS.  PEDRICK, FREEDOM OF THE PRESS
AND THE LAW OF LIBEL:  THE MODERN REVISED TRANSLATION, 49 CORNELL L.Q.
581, 583 - 584 (1964).  AFTER MANY YEARS OF REVIEWING THE ENGLISH LAW
OF DEFAMATION, THE PORTER COMMITTEE CONCLUDED THAT "THOUGH THE LAW AS
TO DEFAMATION REQUIRES SOME MODIFICATION, THE BASIC PRINCIPLES UPON
WHICH IT IS FOUNDED ARE NOT AMISS."  REPORT OF THE COMMITTEE ON THE LAW
OF DEFAMATION, CMD.  NO. 7536, PARA. 222, P. 48 (1948). 

/27/  IF I READ THE COURT CORRECTLY, IT CLEARLY IMPLIES THAT FOR
THOSE PUBLICATIONS THAT DO NOT MAKE "SUBSTANTIAL DANGER TO REPUTATION
APPARENT,"  THE NEW YORK TIMES ACTUAL-MALICE STANDARD WILL APPLY. 
APPARENTLY, THIS WOULD BE TRUE EVEN WHERE THE IMPUTATION CONCERNED
CONDUCT OR A CONDITION THAT WOULD BE PER SE SLANDER. 

/28/  A RECENT STUDY HAS COMPREHENSIVELY DETAILED THE ROLE AND
IMPACT OF MASS COMMUNICATIONS IN THIS NATION.  SEE NOTE, MEDIA AND THE
FIRST AMENDMENT IN A FREE SOCIETY, 60 GEO.L.J. 867 (1972).  FOR
EXAMPLE, 99% OF THE AMERICAN HOUSEHOLDS HAVE A RADIO, AND 77% HEAR AT
LEAST ONE RADIO NEWSCAST DAILY.  IN 1970, THE YEARLY AVERAGE HOME
TELEVISION VIEWING TIME WAS ALMOST SIX HOURS PER DAY.  ID., AT 883 N.
53. 

"SIXTY YEARS AGO, 2,442 NEWSPAPERS WERE PUBLISHED DAILY NATIONWIDE,
AND 689 CITIES HAD COMPETING DAILIES.  TODAY, IN ONLY 42 OF THE CITIES
SERVED BY ONE OF THE 1,748 AMERICAN DAILY PAPERS IS THERE A COMPETING
NEWSPAPER UNDER SEPARATE OWNERSHIP.  TOTAL DAILY CIRCULATION HAS PASSED
62 MILLION COPIES, BUT OVER 40 PERCENT OF THIS CIRCULATION IS
CONTROLLED BY ONLY 25 OWNERSHIP GROUPS. 

"NEWSPAPER OWNERS HAVE PROFITED GREATLY FROM THE CONSOLIDATION OF
THE JOURNALISM INDUSTRY.  SEVERAL OF THEM REPORT YEARLY PROFITS IN THE
TENS OF MILLIONS OF DOLLARS, WITH AFTER TAX PROFITS RANGING FROM SEVEN
TO 14 PERCENT OF GROSS REVENUES.  UNFORTUNATELY, THE OWNERS HAVE MADE
THEIR PROFITS AT THE EXPENSE OF THE PUBLIC INTEREST IN FREE
EXPRESSION.  AS THE BROAD BASE OF NEWSPAPER OWNERSHIP NARROWS, THE
VARIATION OF FACTS AND OPINIONS RECEIVED BY THE PUBLIC FROM
ANTAGONISTIC SOURCES IS INCREASINGLY LIMITED.  NEWSPAPER PUBLICATION IS
INDEED A LEADING AMERICAN INDUSTRY.  THROUGH ITS EVOLUTION IN THIS
DIRECTION, THE PRESS HAS COME TO BE DOMINATED BY A SELECT GROUP WHOSE
PRIME INTEREST IS ECONOMIC.     "THE EFFECT OF CONSOLIDATION WITHIN THE
NEWSPAPER INDUSTRY IS MAGNIFIED BY THE DEGREE OF INTERMEDIA OUNERSHIP. 
SIXTY-EIGHT CITIES HAVE A RADIO STATION OWNED BY THE ONLY LOCAL DAILY
NEWSPAPER, AND 160 TELEVISION STATIONS HAVE NEWSPAPER AFFILIATIONS.  IN
11 CITIES DIVERSITY OF OWNERSHIP IS COMPLETELY LACKING WITH THE ONLY
TELEVISION STATION AND NEWSPAPER UNDER THE SAME CONTROL."  ID., AT 892
893.  SEE ALSO CONGRESS, FCC CONSIDER NEWSPAPER CONTROL OF LOCAL TV,
32 CONG.Q. 659 - 663 (1974). 

/29/  HAVING HELD THAT THE DEFAMATION PLAINTIFF IS LIMITED TO
RECOVERING FOR "ACTUAL INJURY," THE COURT HASTENS TO ADD: 

"SUFFICE IT TO SAY THAT ACTUAL INJURY IS NOT LIMITED TO OUT-OF
POCKET LOSS.  INDEED, THE MORE CUSTOMARY TYPES OF ACTUAL HARM INFLICTED
BY DEFAMATORY FALSEHOOD INCLUDE IMPAIRMENT OF REPUTATION AND STANDING
IN THE COMMUNITY, PERSONAL HUMILIATION, AND MENTAL ANGUISH AND
SUFFERING."  ANTE, AT 350. 

IT SHOULD BE POINTED OUT THAT UNDER THE PREVAILING LAW, WHERE THE
DEFAMATION IS NOT ACTIONABLE PER SE AND PROOF OF "SPECIAL DAMAGE" IS
REQUIRED, A SHOWING OF ACTUAL INJURY TO REPUTATION IS INSUFFICIENT; BUT
IF PECUNIARY LOSS IS SHOWN, GENERAL REPUTATION DAMAGES ARE
RECOVERABLE.  THE COURT CHANGES THE LATTER, BUT NOT THE FORMER RULE. 
ALSO UNDER PRESENT LAW, PAIN AND SUFFERING, ALTHOUGH SHOWN, DO NOT
WARRANT DAMAGES IN ANY DEFAMATION ACTION UNLESS THE PLAINTIFF IS
OTHERWISE ENTITLED TO AT LEAST NOMINAL DAMAGES.  BY IMPOSING A MORE
DIFFICULT STANDARD OF LIABILITY AND REQUIRING PROOF OF ACTUAL DAMAGE TO
REPUTATION, RECOVERY FOR PAIN AND SUFFERING, THOUGH REAL, BECOMES A
MUCH MORE REMOTE POSSIBILITY. 

/30/  "THE HARM RESULTING FROM AN INJURY TO REPUTATION IS DIFFICULT TO
DEMONSTRATE BOTH BECAUSE IT MAY INVOLVE SUBTLE DIFFERENCES IN THE
CONDUCT OF THE RECIPIENTS TOWARD THE PLAINTIFF AND BECAUSE THE
RECIPIENTS, THE ONLY WITNESSES ABLE TO ESTABLISH THE NECESSARY CAUSAL
CONNECTION, MAY BE RELUCTANT TO TESTIFY THAT THE PUBLICATION AFFECTED
THEIR RELATIONSHIPS WITH THE PLAINTIFF.  THUS SOME PRESUMPTIONS ARE
NECESSARY IF THE PLAINTIFF IS TO BE ADEQUATELY COMPENSATED."  NOTE,
DEVELOPMENTS IN THE LAW--DEFAMATION, 69 HARV.L.REV.  875, 891 - 892
(1956). 

/31/  "ON QUESTIONS OF DAMAGES, THE JUDGE PLAYS AN IMPORTANT ROLE. 
IT IS, OF COURSE, FOR HIM TO DETERMINE AND INSTRUCT THE JURY AS TO WHAT
MATTERS MAY BE TAKEN INTO CONSIDERATION BY THEM IN ARRIVING AT A
VERDICT SINCE SUCH QUESTIONS ARE CLEARLY MATTERS OF SUBSTANTIVE LAW. 
BUT THE JUDGE ALSO MAY AND FREQUENTLY DOES EXERCISE A JUDGMENT AS TO
THE AMOUNT OF DAMAGES THE PLAINTIFF MAY RECOVER.  HIS FUNCTION HERE IS
PRIMARILY TO KEEP THE JURY WITHIN BOUNDS OF REASON AND COMMON SENSE, TO
GUARD AGAINST EXCESSIVE VERDICTS DICTATED BY PASSION AND PREJUDICE AND
TO SEE TO IT THAT THE AMOUNT OF THE VERDICT HAS SOME REASONABLE
RELATION TO THE PLAINTIFF'S EVIDENCE AS TO HIS LOSS OR THE PROBABILITY
OF LOSS.  THUS, THE TRIAL JUDGE MAY GRANT A NEW TRIAL OR THE APPELLATE
COURT MAY REVERSE AND REMAND THE CASE FOR A NEW TRIAL BECAUSE OF
EXCESSIVE DAMAGES OR, AS IS MORE FREQUENTLY THE CASE, A REMITTITUR MAY
BE ORDERED, THE EFFECT OF WHICH IS THAT THE PLAINTIFF MUST ACCEPT A
SPECIFIED REDUCTION OF HIS DAMAGES OR SUBMIT TO A NEW TRIAL ON THE
ISSUE OF LIABILITY AS WELL AS DAMAGES."  1 F. HARPER & F. JAMES, THE
LAW OF TORTS 5.29, P. 467 (1956) (FOOTNOTE OMITTED). 

/32/  SEE PEDRICK, SUPRA, N. 26, AT 587 N. 23. 

/33/  MURNAGHAN, SUPRA, N. 3, AT 29. 

/34/  NOTE, DEVELOPMENTS IN THE LAW--DEFAMATION, 69 HAR.L.REV.,
SUPRA, AT 875, 938 AND N. 443. 

/35/  ID., AT 939, 941 - 942.  SEE, E.G., CAL. CIV. CODE 48A (2)

  (1954). 

/36/  376 U.S.,AT 285. 

/37/  ID., AT 270. 

/38/  JUDICIAL REVIEW OF JURY LIBEL AWARDS FOR EXCESSIVENESS SHOULD
BE INFLUENCED BY FIRST AMENDMENT CONSIDERATIONS, BUT IT MAKES LITTLE
SENSE TO DISCARD AN OTHERWISE USEFUL AND TIME-TESTED RULE BECAUSE IT
MIGHT BE MISAPPLIED IN A FEW CASES. 

/39/  O. HOLMES, THE COMMON LAW 36 (1881). 

/40/  ANTE, AT 351, 352. 

/41/  CF. PEDRICK, SUPRA, N. 26, AT 601 - 602: 

"A GREAT MANY FORCES IN OUR SOCIETY OPERATE TO DETERMINE THE EXTENT
TO WHICH MEN ARE FREE IN FACT TO EXPRESS THEIR IDEAS.  WHETHER THERE IS
A PRIVILEGE FOR GOOD FAITH DEFAMATORY MISSTATEMENTS ON MATTERS OF
PUBLIC CONCERN OR WHETHER THERE IS STRICT LIABILITY FOR SUCH STATEMENTS
MAY NOT GREATLY AFFECT THE COURSE OF PUBLIC DISCUSSION.  HOW DIFFERENT
HAS LIFE BEEN IN THOSE STATES WHICH HERETOFORE FOLLOWED THE MAJORITY
RULE IMPOSING STRICT LIABILITY FOR MISSTATEMENTS OF FACT DEFAMING
PUBLIC FIGURES FROM LIFE IN THE MINORITY STATES WHERE THE GOOD FAITH
PRIVILEGE HELD SWAY?" 

SEE ALSO T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 519 (1970)
(FOOTNOTE OMITTED):  "(ON THE WHOLE THE ROLE OF LIBEL LAW IN THE SYSTEM
OF FREEDOM OF EXPRESSION HAS BEEN RELATIVELY MINOR AND ESSENTIALLY
ERRACTIC." 

/42/  "THE MAN WHO IS COMPELLED TO LIVE EVERY MINUTE OF HIS LIFE
AMONG OTHERS AND WHOSE EVERY NEED, THOUGHT, DESIRE, FANCY OR
GRATIFICATION IS SUBJECT TO PUBLIC SCRUTINY, HAS BEEN DEPRIVED OF HIS
INDIVIDUALITY AND HUMAN DIGNITY.  SUCH AN INDIVIDUAL MERGES WITH THE
MASS.  HIS OPINIONS, BEING PUBLIC, TEND NEVER TO BE DIFFERENT; HIS
ASPIRATIONS, BEING KNOWN, TEND ALWAYS TO BE CONVENTIONALLY ACCEPTED
ONES; HIS FEELINGS, BEING OPENLY EXHIBITED, TEND TO LOSE THEIR QUALITY
OF UNIQUE PERSONAL WARMTH AND TO BECOME THE FEELINGS OF EVERY MAN. 
SUCH A BEING, ALTHOUGH SENTIENT, IS FUNGIBLE; HE IS NOT AN
INDIVIDUAL."  BLOUSTEIN, PRIVACY AS AN ASPECT OF HUMAN DIGNITY:  AN
ANSWER TO DEAN PROSSER, 39 N.Y.U.L.REV.  962, 1003 (1964). 

/43/  WITH THE EVISCERATION OF THE COMMON-LAW LIBEL REMEDY FOR THE
PRIVATE CITIZEN, THE COURT REMOVES FROM HIS LEGAL ARSENAL THE MOST
EFFECTIVE WEAPON TO COMBAT ASSAULT ON PERSONAL REPUTATION BY THE PRESS
ESTABLISHMENT.  THE DAVID AND GOLIATH NATURE OF THIS RELATIONSHIP IS
ALL THE MORE ACCENTUATED BY THE COURT'S HOLDING TODAY IN MIAMI HERALD
PUBLISHING CO. V. TORNILLO, ANTE, P. 241, WHICH I HAVE JOINED, THAT AN
INDIVIDUAL CRITICIZED BY A NEWSPAPER'S EDITORIAL IS PRECLUDED BY THE
FIRST AMENDMENT FROM REQUIRING THAT NEWSPAPER TO PRINT HIS REPLY TO
THAT ATTACK.  WHILE THAT CASE INVOLVES AN ANNOUNCED CANIDATE FOR PUBLIC
OFFICE, THE COURT'S FINDING OF A FIRST AMENDMENT BARRIER TO GOVERNMENT
"INTRUSION INTO THE FUNCTION OF EDITORS," ANTE, AT 258, DOES NOT REST
ON ANY DISTINCTION BETWEEN PRIVATE CITIZENS OR PUBLIC OFFICIALS.  IN
FACT, THE COURT OBSERVES THAT THE FIRST AMENDMENT CLEARLY PROTECTS FROM
GOVERNMENTAL RESTRAINT "THE EXERCISE OF EDITORIAL CONTROL AND
JUDGMENT," I.E., "(THE CHOICE OF MATERIAL TO GO INTO A NEWSPAPER, AND
THE DECISIONS MADE AS TO LIMITATIONS ON THE SIZE AND CONTENT OF THE
PAPER, AND TREATMENT OF PUBLIC ISSUES AND PUBLIC OFFICIALS--WHETHER
FAIR OR UNFAIR . . .."  IBID.  (EMPHASIS ADDED.) 

WE MUST, THEREFORE, ASSUME THAT THE HAPLESS ORDINARY CITIZEN LIBELED
BY THE PRESS (A) MAY NOT ENJOIN IN ADVANCE OF PUBLICATION A STORY ABOUT
HIM, REGARDLESS OF HOW LIBELOUS IT MAY BE, NEAR V. MINNESOTA EX REL.
OLSON, 283 U.S. 697 (1931); (B) MAY NOT COMPEL THE NEWSPAPER TO PRINT
HIS REPLY; AND (C) MAY NOT FORCE THE NEWSPAPER TO PRINT A RETRACTION,
BECAUSE A JUDICIALLY COMPELLED RETRACTION, LIKE A "REMEDY SUCH AS AN
ENFORCEABLE RIGHT OF ACCESS," ENTAILS "GOVERNMENTAL COERCION" AS TO
CONTENT, WHICH "AT ONCE BRINGS ABOUT A CONFRONTATION WITH THE EXPRESS
PROVISIONS OF THE FIRST AMENDMENT AND THE JUDICIAL GLOSS ON THAT
AMENDMENT DEVELOPED OVER THE YEARS."  MIAMI HERALD PUBLISHING CO. V.
TORNILLO, ANTE, AT 254; BUT CF. THIS CASE, ANTE, AT 368 N. 3 (BRENNAN,
J., DISSENTING). 

BY BROTHER BRENNAN ALSO SUGGESTS THAT THERE MAY CONSTITUTIONALLY BE
ROOM FOR "THE POSSIBLE ENACTMENT OF STATUTES, NOT REQUIRING PROOF OF
FAULT, WHICH PROVIDE . . . FOR PUBLICATION OF A COURT'S DETERMINATION
OF FALSITY IF THE PLAINTIFF IS ABLE TO DEMONSTRATE THAT FALSE
STATEMENTS HAVE BEEN PUBLISHED CONCERNING HIS ACTIVITIES."  IBID.  THE
COURT, HOWEVER, DOES NOT EVEN CONSIDER THIS LESS DRASTIC ALTERNATIVE TO
ITS NEW "SOME FAULT" LIBEL STANDARDS. 

/44/  SEE N. 28, SUPRA. 

/45/  "NO DEMOCRACY, . . . CERTAINLY NOT THE AMERICAN DEMOCRACY,
WILL INDEFINITELY TOLERATE CONCENTRATIONS OF PRIVATE POWER
IRRESPONSIBLE AND STRONG ENOUGH TO THWART THE ASPIRATIONS OF THE
PEOPLE.  EVENTUALLY GOVERNMENTAL POWER WILL BE USED TO BREAK UP PRIVATE
POWER, OR GOVERNMENTAL POWER WILL BE USED TO REGULATE PRIVATE POWER--IF
PRIVATE POWER IS AT ONCE GREAT AND IRRESPONSIBLE."  COMMISSION ON
FREEDOM OF THE PRESS, A FREE AND RESPONSIBLE PRESS 80 (1947). 

WAYNE B. GIAMPIETRO ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

CLYDE J. WATTS ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :
















SPENCE V. WASHINGTON, 418 U.S. 405. 


       SPENCE V. WASHINGTON

        APPEAL FROM SUPREME COURT OF WASHINGTON

        NO. 72 - 1690.  ARGUED JANUARY 9, 1974--DECIDED JUNE 25,

           1974; 81 WASH. 2D 788, 506 P.2D 293, REVERSED. 


    FOR DISPLAYING OUT OF HIS APARTMENT WINDOW A UNITED STATES FLAG

  UPSIDE DOWN WITH A PEACE SYMBOL TAPED THERETO, APPELLANT WAS

  CONVICTED UNDER WASHINGTON'S "IMPROPER USE" STATUTE FORBIDDING

  THE EXHIBITION OF A UNITED STATES FLAG TO WHICH IS ATTACHED OR

  SUPERIMPOSED FIGURES, SYMBOLS, OR OTHER EXTRANEOUS MATERIAL.  HE

  TESTIFIED WITHOUT CONTRADICTION AT HIS TRIAL THAT HE THUS

  DISPLAYED HIS FLAG AS A PROTEST AGAINST THEN-RECENT ACTIONS IN

  CAMBODIA AND FATAL EVENTS AT KENT STATE UNIVERSITY, AND THAT HIS

PURPOSE WAS TO ASSOCIATE THE AMERICAN FLAG WITH PEACE INSTEAD OF

  WAR AND VIOLENCE.  THE WASHINGTON SUPREME COURT SUSTAINED THE

  CONVICTION, REJECTING APPELLANT'S CONTENTION, INTER ALIA, THAT

  THE IMPROPER-USE STATUTE, ON ITS FACE AND AS AS APPLIED,

  CONTRAVENED THE FIRST AND FOURTEENTH AMENDMENTS.  HELD:  THE

  STATUTE, AS APPLIED TO APPELLANT'S ACTIVITY, IMPERMISSIBLY

  INFRINGED A FORM OF PROTECTED EXPRESSION. 

PER CURIAM. 

APPELLANT DISPLAYED A UNITED STATES FLAG, WHICH HE OWNED, OUT OF THE
WINDOW OF HIS APARTMENT.  AFFIXED TO BOTH SURFACES OF THE FLAG WAS A
LARGE PEACE SYMBOL FASHIONED OF REMOVABLE TAPE.  APPELLANT WAS
CONVICTED UNDER A WASHINGTON STATUTE FORBIDDING THE EXHIBITION OF A
UNITED STATES FLAG TO WHICH IS ATTACHED OR SUPERIMPOSED FIGURES,
SYMBOLS, OR OTHER EXTRANEOUS MATERIAL.  THE SUPREME COURT OF WASHINGTON
AFFIRMED APPELLANT'S CONVICTION.  STATE V. SPENCE, 81 WASH.2D 788, 506
P.2D 293 (1973).  IT REJECTED APPELLANT'S CONTENTIONS THAT THE STATUTE
UNDER WHICH HE WAS CHARGED, ON ITS FACE AND AS APPLIED, CONTRAVENED THE
FIRST AMENDMENT, AS INCORPORATED BY THE FOURTEENTH AMENDMENT, AND WAS
VOID FOR VAGUENESS.  WE NOTED PROBABLE JURISDICTION.  414 U.S. 815
(1973).  WE REVERSE ON THE GROUND THAT AS APPLIED TO APPELLANT'S
ACTIVITY THE WASHINGTON STATUTE IMPERMISSIBLY INFRINGED PROTECTED
EXPRESSION. 

        I 

ON MAY 10, 1970, APPELLANT, A COLLEGE STUDENT, HUNG HIS UNITED
STATES FLAG FROM THE WINDOW OF HIS APARTMENT ON PRIVATE PROPERTY IN
SEATTLE, WASHINGTON.  THE FLAG WAS UPSIDE DOWN, AND ATTACHED TO THE
FRONT AND BACK WAS A PEACE SYMBOL (I.E., A CIRCLE ENCLOSING A TRIDENT)
MADE OF REMOVABLE BLACK TAPE.  THE WINDOW WAS ABOVE THE GROUND FLOOR. 
THE FLAG MEASURED APPROXIMATELY THREE BY FIVE FEET AND WAS PLAINLY
VISIBLE TO PASSERSBY.  THE PEACE SYMBOL OCCUPIED ROUGHLY HALF OF THE
SURFACE OF THE FLAG. 

THREE SEATTLE POLICE OFFICERS OBSERVED THE FLAG AND ENTERED THE
APARTMENT HOUSE.  THEY WERE MET AT THE MAIN DOOR BY APPELLANT, WHO
SAID, "I SUPPOSE YOU ARE HERE ABOUT THE FLAG.  I DIDN'T KNOW THERE WAS
ANYTHING WRONG WITH IT.  I WILL TAKE IT DOWN."  APPELLANT PERMITTED THE
OFFICERS TO ENTER HIS APARTMENT, WHERE THEY SEIZED THE FLAG AND
ARRESTED HIM.  APPELLANT COOPERATED WITH THE OFFICERS.  THERE WAS NO
DISRUPTION OR ALTERCATION. 

APPELLANT WAS NOT CHARGED UNDER WASHINGTON'S FLAG-DESECRATION
STATUTE.  SEE WASH. REV. CODE 9.86.030, AS AMENDED.  /1/  RATHER, THE
STATE RELIED ON THE SO-CALLED "IMPROPER USE" STATUTE, WASH. REV. CODE
9.86.020.  THIS STATUTE PROVIDES, IN PERTINENT PART: 

"NO PERSON SHALL, IN ANY MANNER, FOR EXHIBITION OR DISPLAY: 

    "(1) PLACE OR CAUSE TO BE PLACED ANY WORD, FIGURE, MARK,

  PICTURE, DESIGN, DRAWING OR ADVERTISEMENT OF ANY NATURE UPON ANY

  FLAG, STANDARD, COLOR, ENSIGN OR SHIELD OF THE UNITED STATES OR

  OF THIS STATE . . . OR 

     "(2) EXPOSE TO PUBLIC VIEW ANY SUCH FLAG, STANDARD, COLOR,

ENSIGN OR SHIELD UPON WHICH SHALL HAVE BEEN PRINTED, PAINTED OR

  OTHERWISE PRODUCED, OR TO WHICH SHALL HAVE BEEN ATTACHED,

  APPENDED, AFFIXED OR ANNEXED ANY SUCH WORD, FIGURE, MARK,

  PICTURE, DESIGN, DRAWING OR ADVERTISEMENT . . . ."  /2/

APPELLANT INITIALLY WAS TRIED TO THE BENCH IN A LOCAL JUSTICE COURT,
WHERE HE WAS FOUND GUILITY AND SENTENCED TO 90 DAYS' CONFINEMENT, WITH
60 DAYS SUSPENDED.  APPELLANT EXERCISED HIS RIGHT TO BE TRIED DE NOVO
IN KING COUNTY SUPERIOR COURT, WHERE HE RECEIVED A JURY TRIAL. 

THE STATE BASED ITS CASE ON THE FLAG ITSELF AND THE TESTIMONY OF THE
THREE ARRESTING OFFICERS, WHO TESTIFIED THAT THEY HAD OBSERVED THE FLAG
DISPLAYED FROM APPELLANT'S WINDOW AND THAT ON THE FLAG WAS SUPERIMPOSED
WHAT THEY IDENTIFIED AS A PEACE SYMBOL.  APPELLANT TOOK THE STAND IN
HIS OWN DEFENSE.  HE TESTIFIED THAT HE PUT A PEACE SYMBOL ON THE FLAG
AND DISPLAYED IT TO PUBLIC VIEW AS A PROTEST AGAINST THE INVASION OF
CAMBODIA AND THE KILLING AT KENT STATE UNIVERSITY, EVENTS WHICH
OCCURRED A FEW DAYS PRIOR TO HIS ARREST.  HE SAID THAT HIS PURPOSE WAS
TO ASSOCIATE THE AMERICAN FLAG WITH PEACE INSTEAD OF WAR AND VIOLENCE: 

"I FELT THERE HAD BEEN SO MUCH KILLING AND THAT THIS WAS NOT WHAT
AMERICA STOOD FOR.  I FELT THAT THE FLAG STOOD FOR AMERICA AND I WANTED
PEOPLE TO KNOW THAT I THOUGHT AMERICA STOOD FOR PEACE."  APPELLANT
FURTHER TESTIFIED THAT HE CHOSE TO FASHION THE PEACE SYMBOL FROM TAPE
SO THAT IT COULD BE REMOVED WITHOUT DAMAGING THE FLAG.  THE STATE MADE
NO EFFORT TO CONTROVERT ANY OF APPELLANT'S TESTIMONY. 

THE TRIAL COURT INSTRUCTED THE JURY IN ESSENCE THAT THE MERE ACT OF
DISPLAYING THE FLAG WITH THE PEACE SYMBOL ATTACHED, IF PROVED BEYOND A
REASONABLE DOUBT, WAS SUFFICIENT TO CONVICT.  THERE WAS NO REQUIREMENT
OF SPECIFIC INTENT TO DO ANYTHING MORE THAN DISPLAY THE FLAG IN THAT
MANNER.  THE JURY RETURNED A VERDICT OF GUILTY.  THE COURT SENTENCED
APPELLANT TO 10 DAYS IN JAIL, SUSPENDED, AND TO A $75 FINE.  THE
WASHINGTON COURT OF APPEALS REVERSED THE CONVICTION.  5 WASH.APP.  752,
490 P.2D 1321 (1971).  IT HELD THE IMPROPER-USE STATUTE OVERBROAD AND
INVALID ON ITS FACE UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  WITH
ONE JUSTICE DISSENTING AND TWO CONCURRING IN THE RESULT, THE WASHINGTON
SUPREME COURT REVERSED AND REINSTATED THE CONVICTION.  81 WASH.2D 788,
506 P.2D 293 (1973). 

        II 

A NUMBER OF FACTORS ARE IMPORTANT IN THE INSTANT CASE.  FIRST, THIS
WAS A PRIVATELY OWNED FLAG.  IN A TECHNICAL PROPERTY SENSE IT WAS NOT
THE PROPERTY OF ANY GOVERNMENT.  WE HAVE NO DOUBT THAT THE STATE OR
NATIONAL GOVERNMENTS CONSTITUTIONALLY MAY FORBID ANYONE FROM
MISHANDLING IN ANY MANNER A FLAG THAT IS PUBLIC PROPERTY.  BUT THIS IS
A DIFFERENT CASE.  SECOND, APPELLANT DISPLAYED HIS FLAG ON PRIVATE
PROPERTY.  HE ENGAGED IN NO TRESPASS OR DISORDERLY CONDUCT.  NOR IS
THIS A CASE THAT MIGHT BE ANALYZED IN TERMS OF REASONABLE TIME, PLACE,
OR MANNER RESTRAINTS ON ACCESS TO A PUBLIC AREA.  THIRD, THE RECORD IS
DEVOID OF PROOF OF ANY RISK OF BREACH OF THE PEACE.  IT WAS NOT
APPELLANT'S PURPOSE TO INCITE VIOLENCE OR EVEN STIMULATE A PUBLIC
DEMONSTRATION.  THERE IS NO EVIDENCE THAT ANY CROWD GATHERED OR THAT
APPELLANT MADE ANY EFFORT TO ATTRACT ATTENTION BEYOND HANGING THE FLAG
OUT OF HIS OWN WINDOW.  INDEED, ON THE FACTS STIPULATED BY THE PARTIES
THERE IS NO EVIDENCE THAT ANYONE OTHER THAN THE THREE POLICE OFFICERS
OBSERVED THE FLAG. 

FOURTH, THE STATE CONCEDES, AS DID THE WASHINGTON SUPREME COURT,
THAT APPELLANT ENGAGED IN A FORM OF COMMUNICATION.  /3/  ALTHOUGH THE
STIPULATED FACTS FAIL TO SHOW THAT ANY MEMBER OF THE GENERAL PUBLIC
VIEWED THE FLAG, THE STATE'S CONCESSION IS INEVITABLE ON THIS RECORD. 
THE UNDISPUTED FACTS ARE THAT APPELLANT "WANTED PEOPLE TO KNOW THAT IT
THOUGH AMERICA STOOD FOR PEACE."  TO BE SURE, APPELLANT DID NOT CHOOSE
TO ARTICULATE HIS VIEWS THROUGH PRINTED OR SPOKEN WORDS.  IT IS
THEREFORE NECESSARY TO DETERMINE WHETHER HIS ACTIVITY WAS SUFFICIENTLY
IMBUED WITH ELEMENTS OF COMMUNCATION TO FALL WITHIN THE SCOPE OF THE
FIRST AND FOURTEENTH AMENDMENTS, FOR AS THE COURT NOTED IN UNITED
STATES V. O'BRIEN, 391 U.S. 367, 376 (1968), "(WE CANNOT ACCEPT THE
VIEW THAT AN APPARENTLY LIMITLESS VARIETY OF CONDUCT CAN BE LABELED
'SPEECH' WHENEVER THE PERSON ENGAGING IN THE CONDUCT INTENDS THEREBY TO
EXPRESS AN IDEA."  BUT THE NATURE OF APPELLANT'S ACTIVITY, COMBINED
WITH THE FACTUAL CONTEXT AND ENVIRONMENT IN WHICH IT WAS UNDERTAKEN,
LEAD TO THE CONCLUSION THAT HE ENGAGED IN A FORM OF PROTECTED
EXPRESSION. 

THE COURT FOR DECADES HAS RECOGNIZED THE COMMUNICATIVE CONNOTATIONS
OF THE USE OF FLAGS.  E.G., STROMBERG V. CALIFORNIA, 283 U.S. 359
(1931).  IN MANY OF THEIR USES FLAGS ARE A FORM OF SYMBOLISM COMPRISING
A "PRIMITIVE BUT EFFECTIVE WAY OF COMMUNICATING IDEAS . . .," AND "A
SHORT CUT FROM MIND TO MIND."  BOARD OF EDUCATION V. BARNETTE, 319 U.S.
624, 632 (1943).  ON THIS RECORD THERE CAN BE LITTLE DOUBT THAT
APPELLANT COMMUNICATED THROUGH THE USE OF SYMBOLS.  THE SYMBOLISM
INCLUDED NOT ONLY THE FLAG BUT ALSO THE SUPERIMPOSED PEACE SYMBOL. 

MOREOVER, THE CONTEXT IN WHICH A SYMBOL IS USED FOR PURPOSES OF
EXPRESSION IS IMPORTANT, FOR THE CONTEXT MAY GIVE MEANING TO THE
SYMBOL.  SEE TINKER V. DES MOINES SCHOOL DISTRICT, 393 U.S. 503
(1969).  IN TINKER, THE WEARING OF BLACK ARMBANDS IN A SCHOOL
ENVIRONMENT CONVEYED AN UNMISTABKABLE MESSAGE ABOUT A CONTEMPORANEOUS
ISSUE OF INTENSE PUBLIC CONCERN--THE VIETNAM HOSTILITIES.  ID., AT 505
514.  IN THIS CASE, APPELLANT'S ACTIVITY WAS ROUGHLY SIMULTANEOUS WITH
AND CONCEDEDLY TRIGGERED BY THE CAMBODIAN INCURSION AND THE KENT STATE
TRAGEDY, ALSO ISSUES OF GREAT PUBLIC MOMENT.  CF. SCHEUER V. RHODES,
416 U.S. 232 (1974).  A FLAG BEARING A PEACE SYMBOL AND DISPLAYED
UPSIDE DOWN BY A STUDENT TODAY MIGHT BE INTERPRETED AS NOTHING MORE
THAN BIZARRE BEHAVIOR, BUT IT WOULD HAVE BEEN DIFFICULT FOR THE GREAT
MAJORITY OF CITIZENS TO MISS THE DRIFT OF APPELLANT'S POINT AT THE TIME
THAT HE MADE IT. 

IT MAY BE NOTED, FURTHER, THAT THIS WAS NOT AN ACT OF MINDLESS
NIHILISM.  RATHER, IT WAS A POINTED EXPRESSION OF ANGUISH BY APPELLANT
ABOUT THE THEN-CURRENT DOMESTIC AND FOREIGN AFFAIRS OF HIS GOVERNMENT. 
AN INTENT TO CONVEY A PARTICULARIZED MESSAGE WAS PRESENT, AND IN THE
SURROUNDING CIRCUMSTANCES THE LIKELIHOOD WAS GREAT THAT THE MESSAGE
WOULD BE UNDERSTOOD BY THOSE WHO VIEWED IT. 

WE ARE CONFRONTED THEN WITH A CASE OF PROSECUTION FOR THE EXPRESSION
OF AN IDEA THROUGH ACTIVITY.  MOREOVER, THE ACTIVITY OCCURRED ON
PRIVATE PROPERTY, RATHER THAN IN AN ENVIRONMENT OVER WHICH THE STATE BY
NECESSITY MUST HAVE CERTAIN SUPERVISORY POWERS UNRELATED TO
EXPRESSION.  CF. PROCUNIER V. MARTINEZ, 416 U.S. 396 (1974); HEALY V.
JAMES, 408 U.S. 169 (1972); TINKER V. DES MOINES SCHOOL DISTRICT,
SUPRA.  ACCORDINGLY, WE MUST EXAMINE WITH PARTICULAR CARE THE INTERESTS
ADVANCED BY APPELLEE TO SUPPORT ITS PROSECUTION. 

WE ARE MET AT THE OUTSET WITH SOMETHING OF AN ENIGMA IN THE MANNER
IN WHICH THE CASE WAS PRESENTED TO US.  THE WASHINGTON SUPREME COURT
REJECTED ANY RELIANCE ON A BREACH-OF-THE-PEACE RATIONALE.  81
WASH.2D,AT 796 N.1, 506 P.2D,AT 299 N. 1.  IT BASED ITS RESULT
PRIMARILY ON THE GROUND THAT "THE NATION AND STATE BOTH HAVE A
RECOGNIZABLE INTEREST IN PRESERVING THE FLAG AS A SYMBOL OF THE NATION
. . ."  /4/  YET COUNSEL FOR THE STATE DECLINED TO SUPPORT THE HIGHEST
STATE COURT'S PRINCIPAL RATIONALE IN ARGUMENT BEFORE US.  /5/  HE
PUSUED INSTEAD THE BREACH-0F-THE-PEACE THEORY DISCARDED BY THE STATE
COURT.  INDEED, THAT WAS THE ONLY BASIS ON WHICH HE CHOSE TO SUPOPORT
THE CONSTITUTIONALITY OF THE STATE STATUTE. 

DESPITE COUNSEL'S APPROACH, WE THINK IT APPROPRIATE TO REVIEW
BRIEFLY THE RANGE OF VARIOUS STATE INTERESTS THAT MIGHT BE THOUGHT TO
SUPPORT THE CHALLENGED CONVICTION, DRAWING UPON THE ARGUMENTS BEFORE
US, THE OPINIONS BELOW, AND THE COURT'S OPINION IN STREET V. NEW YORK,
394 U.S. 576, 590 - 594 (1969).  THE FIRST INTEREST AT ISSUE IS
PREVENTION OF BREACH OF THE PEACE.  IN OUR VIEW, THE WASHINGTON SUPREME
COURT CORRECTLY REJECTED THIS NOTION.  IT IS TOTALLY WITHOUT SUPPORT IN
THE RECORD. 

WE ARE ALSO UNABLE TO AFFIRM THE JUDGMENT BELOW ON THE GROUND THAT
THE STATE MAY HAVE DESIRED TO PROTECT THE SENSIBILITIES OF PASSERSBY. 
"IT IS FIRMLY SETTLED THAT UNDER OUR CONSTITUTION THE PUBLIC EXPRESSION
OF IDEAS MAY NOT BE PROHIBITED MERELY BECAUSE THE IDEAS ARE THEMSELVES
OFFENSIVE TO SOME OF THEIR HEARERS."  STREET V. NEW YORK, SUPRA, AT
592.  MOREOVER, APPELLANT DID NOT IMPOSE HIS IDEAS UPON A CAPTIVE
AUDIENCE.  ANYONE WHO MIGHT HAVE BEEN OFFENDED COULD EASILY HAVE
AVOIDED THE DISPLAY.  SEE COHEN V. CALIFORNIA, 403 U.S. 15 (1971).  NOR
MAY APPELLANT BE PUNISHED FOR FAILING TO SHOW PROPER RESPECT FOR OUR
NATIONAL EMBLEM.  STREET V. NEW YORK, SUPRA, AT 593; BOARD OF EDUCATION
V. BARNETTE, SUPRA.  /6/ 

WE ARE BROUGHT, THEN, TO THE STATE COURT'S THESIS THAT WASHINGTON
HAS AN INTEREST IN PRESERVING THE NATIONAL FLAG AS AN UNALLOYED SYMBOL
OF OUR COUNTRY.  THE COURT DID NOT DEFINE THIS INTEREST; IT SIMPLY
ASSERTED IT.  SEE 81 WASH.2D,AT 799, 506 P.2D,AT 300.  THE DISSENTING
OPINION TODAY, SEE POST, AT 420 - 422, ADOPTS ESSENTIALLY THE SAME
APPROACH.  PRESUMABLY, THIS INTEREST MIGHT BE SEEN AS AN EFFORT TO
PREVENT THE APPROPRIATION OF A REVERED NATIONAL SYMBOL BY AN
INDIVIDUAL, INTEREST GROUP, OR ENTERPRISE WHERE THERE WAS A RISK THAT
ASSOCIATION OF THE SYMBOL WITH A PARTICULAR PRODUCT OR VIEWPOINT MIGHT
BE TAKEN ERRONEOUSLY AS EVIDENCE OF GOVERNMENTAL ENDORSEMENT.  /7/
ALTERNATIVELY, IT MIGHT BE ARGUED THAT THE INTEREST ASSERTED BY THE
STATE COURT IS BASED ON THE UNIQUELY UNIVERSAL CHARACTER OF THE
NATIONAL FLAG AS A SYMBOL.  FOR THE GREAT MAJORITY OF US, THE FLAG IS A
SYMBOL OF PATRIOTISM, OF PRIDE IN THE HISTORY OF OUR COUNTRY, AND OF
THE SERVICE, SACRIFICE, AND VALOR OF THE MILLIONS OF AMERICANS WHO IN
PEACE AND WAR HAVE JOINED TOGETHER TO BUILD AND TO DEFEND A NATION IN
WHICH SELF-GOVERNMENT AND PERSONAL LIBERTY ENDURE.  IT EVIDENCES BOTH
THE UNITY AND DIVERSITY WHICH ARE AMERICA.  FOR OTHERS THE FLAG CARRIES
IN VARYING DEGREES A DIFFERENT MESSAGE.  "A PERSON GETS FROM A SYMBOL
THE MEANING HE PUTS INTO IT, AND WHAT IS ONE MAN'S COMFORT AND
INSPIRATION IS ANOTHER'S JEST AND SCORN."  BOARD OF EDUCATION V.
BARNETTE, 319 U.S.,AT 632 - 633.  IT MIGHT BE SAID THAT WE ALL DRAW
SOMETHING FROM OUR NATIONAL SYMBOL, FOR IT IS CAPABLE OF CONVEYING
SIMULTANEOUSLY A SPECTRUM OF MEANINGS.  IF IT MAY BE DESTROYED OR
PERMANENTLY DISFIGURED, IT COULD BE ARGUED THAT IT WILL LOSE ITS
CAPABILITY OF MIRRORING THE SENTIMENTS OF ALL WHO VIEW IT.     BUT WE
NEED NOT DECIDE IN THIS CASE WHETHER THE INTEREST ADVANCED BY THE COURT
BELOW IS VALID.  /8/  WE ASSUME, ARGUENDO, THAT IT IS.  THE STATUTE IS
NONETHELESS UNCONSTITUTIONAL AS APPLIED TO APPELLANT'S ACTIVITY.  /9/
THERE WAS NO RISK THAT APPELLANT'S ACTS WOULD MISLEAD VIEWERS INTO
ASSUMING THAT THE GOVERNMENT ENDORSED HIS VIEWPOINT.  TO THE CONTRARY,
HE WAS PLAINLY AND PEACEFULLY /10/  PROTESTING THE FACT THAT IT DID
NOT.  APPELLANT WAS NOT CHARGED UNDER THE DESECRATION STATUTE, SEE N.
1, SUPRA, NOR DID HE PERMANENTLY DISFIGURE THE FLAG OR DESTROY IT.  HE
DISPLAYED IT AS A FLAY OF HIS COUNTRY IN A WAY CLOSELY ANALOGOUS TO THE
MANNER IN WHICH FLAGS HAVE ALWAYS BEEN USED TO CONVEY IDEAS.  MOREOVER,
HIS MESSAGE WAS DIRECT, LIKELY TO BE UNDERSTOOD, AND WITHIN THE
CONTOURS OF THE FIRST AMENDMENT.  GIVEN THE PROTECTED CHARACTER OF HIS
EXPRESSION AND IN LIGHT OF THE FACT THAT NO INTEREST THE STATE MAY HAVE
IN PRESERVING THE PHYSICAL INTEGRITY OF A PRIVATELY OWNED FLAG WAS
SIGNIFICANTLY IMPAIRED ON THESE FACTS, THE CONVICTION MUST BE
INVALIDATED.  /11/ 

THE JUDGMENT IS REVERSED. 

              IT IS SO ORDERED. 

/1/  THIS STATUTE PROVIDES IN PART: 

"NO PERSON SHALL KNOWINGLY CAST CONTEMPT UPON ANY FLAG, STANDARD,
COLOR, ENSIGN OR SHIELD . . . BY PUBLICLY MUTILATING, DEFACING,
DEFILING, BURNING, OR TRAMPLING UPON SAID FLAG, STANDARD, COLOR, ENSIGN
OR SHIELD." 

/2/  WASH. REV. CODE 9.86.010 DEFINES THE FLAGS AND OTHER SYMBOLS
PROTECTED BY THE DESECRATION AND IMPROPER-USE STATUTES AS FOLLOWS:
"THE WORDS FLAG, STANDARD, COLOR, ENSIGN OR SHIELD, AS USED IN THIS
CHAPTER, SHALL INCLUDE ANY FLAG, STANDARD, COLOR, ENSIGN OR SHIELD, OR
COPY, PICTURE OR REPRESENTATION THEREOF, MADE OF ANY SUBSTANCE OR
REPRESENTED OR PRODUCED THEREON, AND OF ANY SIZE, EVIDENTLY PURPORTING
TO BE SUCH FLAG, STANDARD, COLOR, ENSIGN OR SHIELD OF THE UNITED STATES
OR OF THIS STATE, OR A COPY, PICTURE OR REPRESENTATION THEREOF." 

/3/  BRIEF FOR APPELLEE 3; 81 WASH. 2D,AT 799, 800, 506 P.2D,AT 300,

  301. 

/4/  81 WASH.2D, AT 799, 506 P.2D, AT 300.  A SUBSIDIARY GROUND
RELIED ON BY THE WASHINGTON SUPREME COURT MUST BE REJECTED SUMMARILY. 
IT FOUND THE INHIBITION ON APPELLANT'S FREEDOM OF EXPRESSION "MINUSCULE
AND TRIFLING" BECAUSE THERE ARE "THOUSANDS OF OTHER MEANS AVAILABLE TO
(HIM) FOR THE DISSEMINATION OF HIS PERSONAL VIEWS . . . ."  ID., AT
799, 800, 506 P.2D,AT 300, 301.  AS THE COURT NOTED IN, E.G., SCHNEIDER
V. STATE, 308 U.S. 147, 163 (1939), "ONE IS NOT TO HAVE THE EXERCISE OF
HIS LIBERTY OF EXPRESSION IN APPROPRIATE PLACES ABRIDGED ON THE PLEA
THAT IT MAY BE EXERCISED IN SOME OTHER PLACE." 

/5/  BRIEF FOR APPELLEE 6; TR. OF ORAL ARG. 31 - 32. 

/6/  COUNSEL FOR THE STATE CONCEDED THAT PROMOTING RESPECT FOR THE
FLAG IS NOT A LEGITIMATE STATE INTEREST.  TR. OF ORAL ARG. 30. 

/7/  UNDOUBTEDLY SUCH A CONCERN UNDERLIES THAT PORTION OF THE
IMPROPER-USE STATUTE FORBIDDING THE UTILIZATION OF REPRESENTATIONS OF
THE FLAG IN A COMMERCIAL CONTEXT.  INDEED, THE THIRD SUBPARAGRAPH OF
THE IMPROPER-USE STATUTE, WASH. REV. CODE 9.86.020(3), WHICH IS NOT AT
ISSUE HERE, IS AIMED DIRECTLY AT COMMERCIAL EXPLOITATION OF OUR
NATIONAL SYMBOL.  THERE IS NO OCCASION IN THIS CASE TO ADDRESS THE
APPLICATION OF THE CHALLENGED STATUTE TO COMMERCIAL BEHAVIOR.  CF.
HALTER V. NEBRASKA, 205 U.S. 34 (1907).  MR. JUSTICE REHNQUIST'S
DISSENT PLACES MAJOR RELIANCE ON HALTER, SEE POST, AT 418 - 420,
DESPITE THE FACT THAT HALTER WAS DECIDED NEARLY 20 YEARS BEFORE THE
COURT CONCLUDED THAT THE FIRST AMENDMENT APPLIES TO THE STATES BY
VIRTUE OF THE FOURTEENTH AMENDMENT.  SEE GITLOW V. NEW YORK, 268 U.S.
652 (1925). 

/8/  IF THIS INTEREST IS VALID, WE NOTE THAT IT IS DIRECTLY RELATED
TO EXPRESSION IN THE CONTEXT OF ACTIVITY LIKE THAT UNDERTAKEN BY
APPELLANT.  FOR THAT REASON AND BECAUSE NO OTHER GOVERNMENTAL INTEREST
UNRELATED TO EXPRESSSION HAS BEEN ADVANCED OR CAN BE SUPPORTED ON THIS
RECORD, THE FOUR-STEP ANALYSIS OF UNITED STATES V. O'BRIEN, 391 U.S.
367, 377 (1968), IS INAPPLICABLE. 

/9/  BECAUSE WE AGREE WITH APPELLANT'S AS-APPLIED ARGUMENT, WE DO
NOT REACH THE MORE COMPREHENSIVE OVERBREADTH CONTENTION HE ALSO
ADVANCES.  BUT IT IS WORTH NOTING THE NEARLY LIMITILESS SWEEP OF THE
WASHINGTON IMPROPER-USE FLAG STATUTE.  READ LITERALLY, IT FORBIDS A
VETERAN'S GROUP FROM ATTACHING, E.G., BATTALION COMMENDATIONS TO A
UNITED STATES FLAG.  IT PROSCRIBES PHOTOGRAPHS OF WAR HEROES STANDING
IN FRONT OF THE FLAG.  IT OUTLAWS NEWSPAPER MASTHEADS COMPOSED OF THE
NATIONAL FLAG WITH SUPERIMPOSED PRINT.  OTHER EXAMPLES COULD EASILY BE
LISTED. 

STATUTES OF SUCH SWEEP SUGGEST PROBLEMS OF SELECTIVE ENFORCEMENT. 
WE ARE, HOWEVER, UNABLE TO AGREE WITH APPELLANT'S VOID-FOR-VAGUENESS
ARGUEMENT.  THE STATUTE'S APPLICATION IS QUITE MECHANICAL, PARTICULARLY
WHEN IMPLEMENTED WITH JURY INSTRUCTIONS LIKE THE ONES GIVEN IN THIS
CASE.  THE LAW IN WASHINGTON, SIMPLY PUT, IS THAT NOTHING MAY BE
AFFIXED TO OR SUPERIMPOSED ON A UNITED STATES FLAG OR A REPRESENTATION
THEREOF.  THUS, IF SELECTIVE ENFORCEMENT HAS OCCURRED, IT HAS BEEN A
RESULT OF PROSECUTORIAL DISCRETION, NOT THE LANGUAGE OF THE STATUTE. 
ACCORDINGLY, THIS CASE IS UNLIKE SMITH V. GOGUEN, 415 U.S. 566 (1974),
WHERE THE WORDS OF THE STATUTE AT ISSUE ("PUBLICLY . . . TREATS
CONTEMPTUOUSLY") WERE THEMSELVES SUFFICIENTLY INDEFINITE TO PROMPT
SUBJECTIVE TREATMENT BY PROSECUTORIAL AUTHORITIES. 

/10/  APPELLANT'S ACTIVITY OCCURRED AT A TIME OF NATIONAL TURMOIL
OVER THE INTRODUCTION OF UNITED STATES FORCES INTO CAMBODIA AND THE
DEATHS AT KENT STATE UNIVERSITY.  IT IS DIFFICULT NOW, MORE THAN FOUR
YEARS LATER, TO RECALL VIVIDLY THE DEPTH OF EMOTION THAT PERVADED MOST
COLLEGES AND UNIVERSITIES AT THE TIME, AND THAT WAS WIDELY SHARED BY
YOUNG AMERICANS EVERYWHERE.  A SPONTANEOUS OUTPOURING OF FEELING
RESULTED IN WIDESPREAD ACTION, NOT ALL OF IT RATIONAL WHEN VIEWED IN
RETROSPECT.  THIS INCLUDED THE CLOSING DOWN OF SOME SCHOOLS, AS WELL AS
OTHER DISRUPTIONS OF MANY CENTERS OF EDUCATION.  IT WAS AGAINST THIS
HIGHLY INFLAMED BACKGROUND THAT APPELLANT CHOSE TO EXPRESS HIS OWN
VIEWS IN A MANNER THAT CAN FAIRLY BE DESCRIBED AS GENTLE AND RESTRAINED
AS COMPARED TO THE ACTIONS UNDERTAKEN BY A NUMBER OF HIS PEERS. 

/11/  THE SIMILARITY OF OUR HOLDING TO THAT OF THE IOWA SUPREME
COURT IN STATE V. KOOL, 212 N.W.2D 518 (1973), MERITS NOTE.  IN THAT
CASE, THE DEFENDANT DISPLAYED A REPLICA OF THE UNITED STATES FLAG
UPSIDE DOWN IN HIS WINDOW, SUPERIMPOSING A PEACE SYMBOL TO CREATE AN
EFFECT IDENTICAL TO THAT ACHIEVED BY SPENCE.  RECOGNIZING THE
COMMUNICATIVE CHARACTER OF THE DEFENDANT'S ACTIVITY, THE IOWA SUPREME
COURT REVERSED HIS CONVICTION FOR FLAG MISUSE AND HELD THE STATUTE
UNCONSTITUTIONAL AS APPLIED.  THE COURT ESCHEWED AN OVERBREADTH
ANALYSIS, AND IT REJECTED A NUMBER OF THE STATE INTERESTS WE HAVE FOUND
UNAVAILING IN THE INSTANT CASE. 

MR. JUSTICE BALCKMUN CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS, CONCURRING. 

I WOULD REVERSE THE JUDGMENT FOR SUBSTANTIALLY THE SAME REASONS
GIVEN BY THE IOWA SUPREME COURT IN STATE V. KOOL, 212 N.W.2D 518.  IN
THAT CASE THE DEFENDANT HUNG A PEACE SYMBOL MADE OF CARDBOARD AND
WRAPPED IN TINFOIL IN THE WINDOW OF HIS HOME AND HUNG A REPLICA OF THE
UNITED STATES FLAG BEHIND THE PEACE SYMBOL BUT IN AN UPSIDE-DOWN
POSITION.  THE STATE STATUTE MADE IT A CRIME TO "CAST" CONTEMPT UPON,
SATIRIZE, DERIDE OR BURLESQUE (THE) FLAG," IOWA CODE 32.1. 

THE COURT HELD THAT DEFENDANT'S CONDUCT CONSTITUTED "SYMBOLIC
SPEECH."  THE COURT, IN REVERSING THE CONVICTION, SAID: 

"SOMEONE IN NEWTON MIGHT BE SO INTEMPERATE AS TO DISRUPT THE PEACE
BECAUSE OF THIS DISPLAY.  BUT IF ABSOLUTE ASSURANCE OF TRANQUILITY IS
REQUIRED, WE MAY AS WELL FORGET ABOUT FREE SPEECH.  UNDER SUCH A
REQUIREMENT, THE ONLY 'FREE' SPEECH WOULD CONSIST OF PLATITUDES.  THAT
KIND OF SPEECH DOES NOT NEED CONSTITUTIONAL PROTECTION."  212 N.W.2D,AT
521  

THAT VIEW IS PRECISELY MY OWN.  HENCE I CONCUR IN REVERSING THIS
JUDGMENT OF CONVICTION. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

IF THE CONSTITUIONAL ROLE OF THIS COURT WERE TO STRIKE DOWN UNWISE
LAWS OR RESTRICT UNWISE APPLICATION OF SOME LAWS, I COULD AGREE WITH
THE RESULT REACHED BY THE COURT.  THAT IS NOT OUR FUNCTION, HOWEVER,
AND IT SHOULD BE LEFT TO EACH STATE AND ULTIMATELY THE COMMON SENSE OF
ITS PEOPLE TO DECIDE HOW THE FLAG, AS A SYMBOL OF NATIONAL UNITY,
SHOULD BE PROTECTED. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

THE COURT HOLDS THAT A WASHINGTON STATUTE PROHIBITING PERSONS FROM
ATTACHING MATERIAL TO THE AMERICAN FLAG WAS UNCONSTITUTIONALLY APPLIED
TO APPELLANT.  ALTHOUGH I AGREE WITH THE COURT THAT APPELLANT'S
ACTIVITY WAS A FORM OF COMMUNICATION, I DO NOT AGREE THAT THE FIRST
AMENDMENT PROHIBITS THE STATE FROM RESTRICTING THIS ACTIVITY IN
FURTHERANCE OF OTHER IMPORTANT INTERESTS.  AND I BELIEVE THE RATIONALE
BY WHICH THE COURT REACHES ITS CONCLUSION IS UNSOUND. 

"(THE RIGHT OF FREE SPEECH IS NOT ABSOLUTE AT ALL TIMES AND UNDER
ALL CIRCUMSTANCES."  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571
(1942).  THIS COURT HAS LONG RECOGNIZED, FOR EXAMPLE, THAT SOME FORMS
OF EXPRESSION ARE NOT ENTITLED TO ANY PROTECTION AT ALL UNDER THE FIRST
AMENDMENT, DESPITE THE FACT THAT THEY COULD REASONABLY BE THOUGHT
PROTECTED UNDER ITS LITERAL LANGUAGE.  SEE ROTH V. UNITED STATES, 354
U.S. 476 (1957).  THE COURT HAS FURTHER RECOGNIZED THAT EVEN PROTECTED
SPEECH MAY BE SUBJECT TO REASONABLE LIMITATION WHEN IMPORTANT
COUNTERVAILING INTERESTS ARE INVOLVED.  CITIZENS ARE NOT COMPLETELY
FREE TO COMMIT PERJURY, TO LIBEL OTHER CITIZENS, TO INFRINGE
COPYRIGHTS, TO INCITE RIOTS, OR TO INTERFERE UNDULY WITH PASSAGE
THROUGH A PUBLIC THOROUGHFARE.  THE RIGHT OF FREE SPEECH, THOUGH
PRECIOUS, REMAINS SUBJECT TO REASONABLE ACCOMMODATION TO OTHER VALUED
INTERESTS. 

SINCE A STATE CONCEDEDLY MAY IMPOSE SOME LIMITATIONS ON SPEECH
DIRECTLY, IT WOULD SEEM TO FOLLOW A FORTIORI THAT A STATE MAY LEGISLATE
TO PROTECT IMPORTANT STATE INTERESTS EVEN THOUGH AN INCIDENTAL
LIMITATION ON FREE SPEECH RESULTS.  VIRTUALLY ANY LAW ENACTED BY A
STATE, WHEN VIEWED WITH SUFFICIENT INGENUITY, COULD BE THOUGHT TO
INTERFERE WITH SOME CITIZEN'S PREFERRED MEANS OF EXPRESSION.  BUT NO
ONE WOULD ARGUE, I PRESUME, THAT A STATE COULD NOT PREVENT THE PAINTING
OF PUBLIC BUILDINGS SIMPLY BECAUSE A PARTICULAR CLASS OF PROTESTORS
BELIEVED THEIR MESSAGE WOULD BEST BE CONVEYED THROUGH THAT MEDIUM.  HAD
APPELLANT HERE CHOSEN TO TAPE HIS PEACE SYMBOL TO A FEDERAL COURTHOUSE,
I HAVE LITTLE DOUBT THAT HE COULD BE PROSECUTED UNDER A STATUTE
PROPERLY DRAWN TO PROTECT PUBLIC PROPERTY. 

YET THE COURT TODAY HOLDS THAT THE STATE OF WASHINGTON CANNOT LIMIT
USE OF THE AMERICAN FLAG, AT LEAST INSOFAR AS ITS STATUTE PREVENTS
APPELLANT FROM USING A PRIVATELY OWNED FLAG TO CONVEY HIS PERSONAL
MESSAGE.  EXPRESSING ITS WILLINGNESS TO ASSUME, ARGUENDO, THAT
WASHINGTON HAS A VALID INTEREST IN PRESERVING THE INTEGRITY OF THE
FLAG, THE COURT NEVERTHELESS FINDS THAT INTEREST TO BE INSUFFICIENT IN
THIS CASE.  TO ACHIEVE THIS RESULT THE COURT FIRST DEVALUES THE STATE'S
INTEREST UNDER THESE CIRCUMSTANCES, NOTING THAT "NO INTEREST THE STATE
MAY HAVE IN PRESERVING THE PHYSICAL INTEGRITY OF A PRIVATELY OWNED FLAG
WAS SIGNIFICANTLY IMPAIRED ON THESE FACTS . . .."  THE COURT TAKES
PAINS TO POINT OUT THAT APPELLANT DID NOT "PERMANENTLY DISFIGURE THE
FLAG OR DESTROY IT," AND EMPHASIZES THAT THE FLAG WAS DISPLAYED "IN A
WAY CLOSELY ANALOGOUS TO THE MANNER IN WHICH FLAGS HAVE ALWAYS BEEN
USED TO CONVEY IDEAS."  THE COURT THEN RESTATES THE NOTION THAT SUCH
STATE INTERESTS ARE SECONDARY TO MESSAGES WHICH ARE "DIRECT, LIKELY TO
BE UNDERSTOOD, AND WITHIN THE CONTOURS OF THE FIRST AMENDMENT."  ANTE,
AT 415.  IN MY VIEW THE FIRST PREMISE DEMONSTRATES A TOTAL
MISUNDERSTANDING OF THE STATE'S INTEREST IN THE INTEGRITY OF THE
AMERICAN FLAG, AND THE SECOND PREMISE PLACES THE COURT IN THE POSITION
EITHER OF ULTIMATELY FAVORING APPELLANT'S MESSAGE BECAUSE OF ITS
SUBJECT MATTER, A POSITION ABOUT WHICH ALMOST ALL MEMBERS OF THE
MAJORITY HAVE ONLY RECENTLY EXPRESSED DOUBT, OR, ALTERNATIVE, OF MAKING
THE FLAG AVAILABLE FOR A LIMITLESS SUCCESSION OF POLITICAL AND
COMMERCIAL MESSAGES.  I SHALL TREAT THESE ISSUES IN REVERSE ORDER. 

THE STATUTE UNDER WHICH APPELLANT WAS CONVICTED IS NO STRANGER TO
THIS COURT, A VIRTUALLY IDENTICAL STATUTE HAVING BEEN BEFORE THE COURT
IN HALTER V. NEBRASKA, 205 U.S. 34 (1907).  IN THAT CASE THE COURT HELD
THAT THE STATE OF NEBRASKA WOULD ENFORCE ITS STATUTE TO PREVENT USE OF
A FLAG REPRESENTATION ON BEER BOTTLES, STATING FLATLY THAT "A STATE
WILL BE WANTING IN CARE FOR THE WELL-BEING OF ITS PEOPLE IF IT IGNORES
THE FACT THAT THEY REGARD THE FLAG AS A SYMBOL OF THEIR COUNTRY'S POWER
AND PRESTIGE . . .."  ID., AT 42.  THE COURT THEN CONTINUED:  "SUCH AN
USE TENDS TO DEGRADE AND CHEAPEN THE FLAG IN THE ESTIMATION OF THE
PEOPLE, AS WELL AS TO DEFEAT THE OBJECT OF MAINTAINING IT AS AN EMBLEM
OF NATIONAL POWER AND NATIONAL HONOR."  IBID. 

THE COURT TODAY FINDS HALTER IRRELEVANT TO THE PRESENT CASE,
POINTING OUT THAT IT WAS DECIDED ALMOST 20 YEARS BEFORE THE FIRST
AMENDMENT WAS APPLIED TO THE STATES AND FURTHER NOTING THAT IT INVOLVED
"COMMERCIAL BEHAVIOR," A FORM OF EXPRESSION THE COURT PRESUMABLY WILL
CONSIDER ANOTHER DAY.  /1/  INSOFAR AS HALTER ASSESSES THE STATE'S
INTEREST, OF COURSE, THE COURT'S ARGUMENT IS SIMPLY BESIDE THE POINT. 
BUT EVEN AS THE ARGUMENT RELATES TO APPELLANT'S INTEREST, I FIND IT
SOMEWHAT DIFFICULT TO GRASP.  THE COURT MAY POSSIBLY BE SUGGESTING THAT
POLITICAL EXPRESSION DESERVES GREATER PROTECTION THAN OTHER FORMS OF
EXPRESSION, BUT THAT SUGGESTION WOULD SEEM QUITE INCONSISTENT WITH THE
POSITION TAKEN BY LEHMAN V. SHAKER HEIGHTS, ANTE, P. 298,  /2/  BY
NEARLY ALL MEMBERS OF THE MAJORITY IN THE INSTANT CASE.  YET IF THE
COURT IS SUGGESTING THAT HALTER WOULD NOW BE DECIDED DIFFERENTLY, AND
THAT THE STATE'S INTEREST IN THE FLAG FALLS BEFORE ANY SPEECH WHICH IS
"DIRECT, LIKELY TO BE UNDERSTOOD, AND WITHIN THE CONTOURS OF THE FIRST
AMENDMENT," THAT VIEW WOULD MEAN THE FLAG COULD BE AUCTIONED AS A
BACKGROUND TO ANYONE WILLING AND ABLE TO BUY OR COPY ONE.  I FIND IT
HARD TO BELIEVE THE COURT INTENDS TO PRESAGE THAT RESULT.     TURNING
TO THE QUESTION OF THE STATE'S INTEREST IN THE FLAG, IT SEEMS TO ME
THAT THE COURT'S TREATMENT LACKS ALL SUBSTANCE.  THE SUGGESTION THAT
THE STATE'S INTEREST SOMEHOW DIMINISHES WHEN THE FLAG IS DECORATED WITH
REMOVABLE TAPE TRIVIALIZES SOMETHING WHICH IS NOT TRIVIAL.  THE STATE
OF WASHINGTON IS HARDLY SEEKING TO PROTECT THE FLAG'S RESALE VALUE, AND
YET THE COURT'S EMPHASIS ON THE LACK OF ACTUAL DAMAGE TO THE FLAG
SUGGESTS THAT THIS IS A SIGNIFICANT ASPECT OF THE STATE'S INTEREST. 
SURELY THE COURT DOES NOT MEAN TO IMPLY THAT APPELLANT COULD BE
PROSECUTED IF HE SUBSEQUENTLY TORE THE FLAG IN THE PROCESS OF TRYING TO
TAKE THE TAPE OFF.  UNLIKE FLAG-DESECRATION STATUTES, WHICH THE COURT
CORRECTLY NOTES ARE NOT AT ISSUE IN THIS CASE, THE WASHINGTON STATUTE
CHALLENGED HERE SEEKS TO PREVENT PERSONAL USE OF THE FLAG, NOT SIMPLY
PARTICULAR FORMS OF ABUSE.  THE STATE OF WASHINGTON HAS CHOSEN TO SET
THE FLAG APART FOR A SPECIAL PURPOSE, AND HAS DIRECTED THAT IT NOT BE
TURNED INTO A COMMON BACKGROUND FOR AN ENDLESS VARIETY OF SUPERIMPOSED
MESSAGES.  THE PHYSICAL CONDITION OF THE FLAG ITSELF IS IRRELEVANT TO
THAT PURPOSE. 

THE TRUE NATURE OF THE STATE'S INTEREST IN THIS CASE IS NOT ONLY ONE
OF PRESERVING "THE PHYSICAL INTEGRITY OF THE FLAG,"  /3/  BUT ALSO ONE
OF PRESERVING THE FLAG AS "AN IMPORTANT SYMBOL OF NATIONHOOD AND
UNITY."  /4/  ALTHOUGH THE COURT TREATS THIS IMPORTANT INTEREST WITH A
STUDIED INATTENTION, IT IS HARDLY ONE OF RECENT INVENTION AND HAS
PREVIOUSLY BEEN ACCORDED CONSIDERABLE RESPECT BY THIS COURT.  IN
HALTER, FOR EXAMPLE, THE COURT STATED: 

"AS THE STATUTE IN QUESTION EVIDENTLY HAD ITS ORIGIN IN A PURPOSE TO
CULTIVATE A FEELING OF PATRIOTISM AMONG THE PEOPLE OF NEBRASKA, WE ARE
UNWILLING TO ADJUGE THAT IN LEGISLATION FOR THAT PURPOSE THE STATE
ERRED IN DUTY OR HAS INFRINGED THE CONSTITUTIONAL RIGHT OF ANYONE.  ON
THE CONTRARY, IT MAY REASONABLY BE AFFIRMED THAT A DUTY RESTS UPON EACH
STATE IN EVERY LEGAL WAY TO ENCOURAGE ITS PEOPLE TO LOVE THE UNION WITH
WHICH THE STATE IS INDISSOLUBLY CONNECTED."  205 U.S., AT 43.  THERE
WAS NO QUESTION IN HALTER OF PHYSICAL IMPAIRMENT OF A FLAG SINCE NO
ACTUAL FLAG WAS EVEN INVOLVED.  AND IT CERTAINLY WOULD HAVE MADE NO
DIFFERENCE TO THE COURT'S DISCUSSION OF THE STATE'S INTEREST IF THE
PLAINTIFF IN ERROR IN THAT CASE HAD CHOSEN TO ADVERTISE HIS PRODUCT BY
DECORATING THE FLAG WITH BEER BOTTLES FASHIONED FROM SOME REMOVABLE
SUBSTANCE.  /5/  IT IS THE CHARACTER, NOT THE CLOTH, OF THE FLAG WHICH
THE STATE SEEKS TO PROTECT. 

THE VALUE OF THIS INTEREST HAS BEEN EMPHASIZED IN RECENT AS WELL AS
DISTANT TIMES.  MR. JUSTICE FORTAS, FOR EXAMPLE, NOTED IN STREET V. NEW
YORK, 394 U.S. 576, 616 (1969), THAT "THE FLAG IS A SPECIAL KIND OF
PERSONALIY," A FORM OF PROPERTY "BURDENED WITH PECULIAR OBLIGATIONS AND
RESTRICTIONS."  ID., AT 617 (DISSENTING OPINION).  /6/  MR. JUSTICE
WHITE HAS OBSERVED THAT "(THE FLAG IS A NATIONAL PROPERTY, AND THE
NATION MAY REGULATE THOSE WHO WOULD MAKE, IMITATE, SELL, POSSESS, OR
USE IT."  SMITH V. GOGUEN, 415 U.S.,AT 587 (CONCURRING IN JUDGMENT).  I
AGREE.  WHAT APPELLANT HERE SEEKS IS SIMPLY LICENSE TO USE THE FLAG
HOWEVER HE PLEASES, SO LONG AS THE ACTIVITY CAN BE TIED TO A CONCEPT OF
SPEECH, REGARDLESS OF ANY STATE INTEREST IN HAVING THE FLAG USED ONLY
FOR MORE LIMITED PURPOSES.  I FIND NO REASONING IN THE COURT'S OPINION
WHICH CONVINCES ME THAT THE CONSTITUTION REQUIRES SUCH LICENSE TO BE
GIVEN. 

THE FACT THAT THE STATE HAS A VALID INTEREST IN PRESERVING THE
CHARACTER OF THE FLAG DOES NOT MEAN, OF COURSE, THAT IT CAN EMPLOY ALL
CONCEIVABLE MEANS TO ENFORCE IT.  IT CERTAINLY COULD NOT REQUIRE ALL
CITIZENS TO OWN THE FLAG OR COMPEL CITIZENS TO SALUTE ONE.  BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624 (1943).  IT PRESUMABLY CANNOT
PUNISH CRITICISM OF THE FLAG, OR THE PRINCIPLES FOR WHICH IT STANDS,
ANY MORE THAN IT COULD PUNISH CRITICISM OF THIS COUNTRY'S POLICIES OR
IDEAS.  BUT THE STATUTE IN THIS CASE DEMANDS NO SUCH ALLEGIANCE.  ITS
OPERATION DOES NOT DEPEND UPON WHETHER THE FLAG IS USED FOR
COMMUNICATIVE OR NONCOMMUNICATIVE PURPOSES; UPON WHETHER A PARTICULAR
MESSAGE IS DEEMED COMMERCIAL OR POLITICAL; UPON WHETHER THE USE OF THE
FLAG IS RESPECTFUL OR CONTEMPTUOUS; OR UPON WHETHER ANY PARTICULAR
SEGMENT OF THE STATE'S CITIZENRY MIGHT APPLAUD OR OPPOSE THE INTENDED
MESSAGE.  /7/  IT SIMPLY WITHDRAWS A UNIQUE NATIONAL SYMBOL FROM THE
ROSTER OF MATERIALS THAT MAY BE USED AS A BACKGROUND FOR
COMMUNICATIONS.  SINCE I DO NOT BELIEVE THE CONSTITUTION PROHIBITS
WASHINGTON FROM MAKING THAT DECISION, I DISSENT. 

/1/  THE COURT STATES IN A FOOTNOTE:  "THERE IS NO OCCASION IN THIS
CASE TO ADDRESS THE APPLICATION OF THE CHALLENGED STATUTE TO COMMERCIAL
BEHAVIOR.  CF. HALTER V. NEBRASKA, 205 U.S. 34 (1907)."  ANTE, AT 413
N. 7. 

/2/  THE PLURALITY OPINION OF MR. JUSTICE BLACKMUN TOOK THE POSITION
THAT A BAN AGAINST POLITICAL ADVERTISING ON PUBLICLY OWNED BUSES WAS
NOT UNCONSTITUTIONAL SINCE "(NO FIRST AMENDMENT FORUM IS HERE TO BE
FOUND."  MR. JUSTICE DOUGLAS, CONCURRING IN THE JUDGMENT, STATED THAT
PETITIONER IN THAT CASE HAD NO "CONSTITUTIONAL RIGHT TO SPREAD HIS
MESSAGE BEFORE THIS CAPTIVE AUDIENCE," BUT SPECIFICALLY NOTED: "I DO
NOT VIEW THE CONTENT OF THE MESSAGE AS RELEVANT EITHER TO PETITIONER'S
RIGHT TO EXPRESS IT OR TO THE COMMUTERS' RIGHT TO BE FREE FROM IT.
COMMERCIAL ADVERTISEMENTS MAY BE AS OFFENSIVE AND INTRUSIVE TO CAPTIVE
AUDIENCES AS ANY POLITICAL MESSAGE."  MR. JUSTICE BRENNAN, WITH WHOM
MR. JUSTICE STEWART, MR. JUSTICE MARSHALL, AND MR. JUSTICE POWELL
JOINED, DISSENTING, STATED:  "THERE IS SOME DOUBT CONCERNING WHETHER
THE 'COMMERCIAL SPEECH' DISTINCTION ANNOUNCED IN VALENTINE V.
CHRESTENSEN, 316 U.S. 52 (1942), RETAINS CONTINUING VALIDITY,"
REFERRING TO MR. JUSTICE DOUGLAS' CONCURRING OPINION IN CAMMARANO V.
UNITED STATES, 358 U.S. 498, 514 (1959).  THE DISSENT FURTHER STATED:
"ONCE A PUBLIC FORUM FOR COMMUNICATION HAS BEEN ESTABLISHED, BOTH FREE
SPEECH AND EQUAL PROTECTION PRINCIPLES PROHIBIT DISCRIMINATION BASED
SOLELY UPON SUBJECT MATTER OR CONTENT."  (EMPHASIS IN ORIGINAL.) 

/3/  SMITH V. GOGUEN, 415 U.S. 566, 591 (1974) (BLACKMUN, J.,

DISSENTING). 

/4/  ID., AT 587 (WHITE, J., CONCURRING IN JUDGMENT). 

/5/  IT SHOULD BE NOTED THAT HALTER MAKES NO MENTION OF THE ARGUMENT
THAT ALLOWING USE OF THE FLAG FOR A PERSONAL OR COMMERCIAL PURPOSE
MIGHT SUGGEST ENDORSEMENT OF THAT PURPOSE BY THE GOVERNMENT.  WHILE
THIS MIGHT BE AN ADDITIONAL STATE INTEREST IN APPROPRIATE CASES, IT IS
BY NO MEANS AN INDISPENSABLE ELEMENT OF THE STATE'S CONCERN ABOUT THE
INTEGRITY OF THE FLAG. 

/6/  THE MAJORITY OF THE COURT IN STREET STATED:  "WE ADD THAT
DISRESPECT FOR OUR FLAG IS TO BE DEPLORED NO LESS IN THESE VEXED TIMES
THAN IN CALMER PERIODS OF OUR HISTORY," 394 U.S.,AT 594, CITING
HALTER. 

/7/  IT IS QUITE APPARENT THAT THE COURT DOES HAVE CONSIDERABLE
SYMPATHY FOR AT LEAST THE FORM OF APPELLANT'S MESSAGE, DESCRIBING HIS
USE OF THE FLAG AS "A POINTED EXPRESSION OF ANGUISH," ANTE, AT 410, AND
COMMENTING THAT "APPELLANT CHOSE TO EXPRESS HIS OWN VIEWS IN A MANNER
THAT CAN FAIRLY BE DESCRIBED AS GENTLE AND RESTRAINED AS COMPARED TO
THE ACTIONS UNDERTAKEN BY A NUMBER OF HIS PEERS."  ANTE, AT 415 N. 10. 
ONE WOULD HOPE THAT THIS LAST OBSERVATION DOES NOT INTRODUCE A DOCTRINE
OF "COMPARATIVE" EXPRESSION, WHICH GIVES MORE LEEWAY TO CERTAIN FORMS
OF EXPRESSION WHEN MORE DESTRUCTIVE METHODS OF EXPRESSION ARE BEING
EMPLOYED BY OTHERS. 

PETER GREENFIELD ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE BURT NEUBORNE, MELVIN L. WULF, AND JOEL M. GORA. 

JAMES E. WARME ARGUED THE CASE FOR APPELLEE.  WITH HIM ON THE BRIEF
WAS CHRISTOPHER T. BAYLEY. 
..END :










FLORIDA POWER & LIGHT V. ELECTRICAL WORKERS, 417 U. S. 790 


       FLORIDA POWER & LIGHT CO. V. INTERNATIONAL BROTHERHOOD OF

           ELECTRICAL WORKERS, LOCAL 641, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 73 - 556.  ARGUED APRIL 24, 1974--DECIDED JUNE 24, 1974;

           /1/  159 U.S. APP.D.C. 272, 487 2D 1143, AFFIRMED. 

/1/  TOGETHER WITH NO. 73-795, NATIONAL LABOR RELATIONS BOARD V.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, ET AL., ALSO
ON CERTIORARI TO THE SAME COURT. 


    A UNION DOES NOT COMMIT AN UNFAIR LABOR PRACTICE UNDER 8(B)(1)

  (B) OF THE NATIONAL LABOR RELATIONS ACT (NLRA) WHEN IT

  DISCIPLINES SUPERVISOR-MEMBERS FOR CROSSING A PICKET LINE AND

  PERFORMING RANK-AND-FILE STRUCK WORK DURING A LAWFUL ECONOMIC

  STRIKE AGAINST THE EMPLOYER.  PP. 798 - 813. 

     (A) BOTH THE LANGUAGE AND LEGISLATIVE HISTORY OF 8 (B) (1) (B)

  REFLECT A CLEAR CONGRESSIONAL CONCERN WITH PROTECTING EMPLOYERS

  IN THE SELECTION OF REPRESENTATIVES TO ENGAGE IN TWO PARTICULAR

  AND EXPLICITLY STATED ACTIVITIES, VIZ., COLLECTIVE BARGAINING AND

  ADJUSTMENT OF GRIEVANCES.  THEREFORE, A UNION'S DISCIPLINE OF

  SUPERVISOR-MEMBERS CAN VIOLATE 8 (B)(1)(B) ONLY WHEN IT MAY

ADVERSELY AFFECT THE SUPERVISOR' CONDUCT IN PERFORMING THE DUTIES

  OF, AND ACTING IN THE CAPACITY OF, GRIEVANCE ADJUSTERS OR

  COLLECTIVE BARGAINERS, IN NEITHER OF WHICH CAPACITIES THE

  SUPERVISORS INVOLVED IN THESE CASES WERE ACTING WHEN THEY CROSSED

  THE PICKET LINES TO PERFORM RANK-AND-FILE WORK.  PP. 802 - 805. 

     (B)  THE CONCERN THAT TO PERMIT A UNION TO DISCIPLINE

  SUPERVISOR-MEMBERS FOR PERFORMING RANK-AND-FILE WORK DURING AN

  ECONOMIC STRIKE WILL DEPRIVE THE EMPLOYER TO THOSE SUPERVISORS'

  FULL LOYALTY, IS A PROBLEM THAT CONGRESS ADDRESSED, NOT THROUGH 8

  (B) (1) (B), BUT THROUGH 8 (3)8 2 (11), AND 14 (A) OF THE NLRA,

 WHICH, WHILE PERMITTING SUPERVISORS TO BECOME UNION MEMBERS,

  ASSURE THE EMPLOYER OF HIS SUPERVISORS' LOYALTY BE RESERVING IN

  HIM THE RIGHTS TO REFUSE TO HIRE UNION MEMBERS AS SUPERVISORS, TO

  DISCHARGE SUPERVISORS FOR INVOLVEMENT IN UNION ACTIVITIES OR

  UNION MEMBERSHIP, AND TO REFUSE TO ENGAGE IN COLLECTIVE

  BARGAINING WITH SUPERVISORS.  PP. 805 - 813. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, MARSHALL, AND POWELL, JJ., JOINED.  WHITE, J.,

  FILED A DISSENTING OPINION, IN WHICH BURGER, C. J., AND BLACKMUN

  AND REHNQUIST, JJ., JOINED, POST, P. 813. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

141, 29 U.S.C. 158 (B) (1) (B), MAKES IT AN UNFAIR LABOR PRACTICE FOR A
UNION "TO RESTRAIN OR COERCE . . . AN EMPLOYER IN THE SELECTION OF HIS
REPRESENTATIVES FOR THE PURPOSES OF COLLECTIVE BARGAINING OR THE
ADJUSTMENT OF GRIEVANCES."  THE RESPONDENT UNIONS IN THESE CONSOLIDATED
CASES CALLED ECONOMIC STRIKES AGAINST THE EMPLOYER COMPANIES.  DURING
THE STRIKES, SUPERVISORY EMPLOYEES OF THE COMPANIES, SOME OF WHOM WERE
MEMBERS OF BARGAINING UNITS AND SOME OF WHOM WERE NOT, BUT ALL OF WHOM
WERE UNION MEMBERS, CROSSED THE PICKET LINES AND PERFORMED RANK-AND
FILE STRUCK WORK, I. E., WORK NORMALLY PERFORMED BY THE NONSUPERVISORY
EMPLOYEES THEN ON STRIKE.  THE UNIONS LATER DISCIPLINED THESE
SUPERVISORS FOR SO DOING.  THE QUESTION TO BE DECIDED IS WHETHER THE
UNIONS COMMITTED UNFAIR LABOR PRACTICES UNDER 8 (B)(1)(B) WHEN THEY
DISCIPLINED THEIR SUPERVISOR-MEMBERS FOR CROSSING THE PICKET LINES AND
PERFORMING RANK-AND-FILE STRUCK WORK DURING LAWFUL ECONOMIC STRIKES
AGAINST THE COMPANIES. 

 I 

SINCE 1909, LOCAL 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO, ONE OF THE RESPONDENTS IN NO. 73 - 795, HAS BEEN
RECOGNIZED BY THE ILLINOIS BELL TELEPHONE CO. (ILLINOIS BELL) AND ITS
PREDECESSORS AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR BOTH RANK
AND-FILE AND CERTAIN SUPERVISORY PERSONNEL, INCLUDING GENERAL FOREMEN,
P. B. X. INSTALLATION FOREMEN, AND BUILDING CABLE FOREMEN.  RATHER THAN
EXERCISE ITS RIGHT TO REFUSE TO HIRE UNION MEMBERS AS SUPERVISORS, THE
COMPANY AGREED TO THE INCLUSION OF A UNION SECURITY CLAUSE IN THE
COLLECTIVE-BARGAINING AGREEMENT WHICH REQUIRED THAT THESE SUPERVISORS,
LIKE THE RANK-AND-FILE EMPLOYEES, MAINTAIN MEMBERSHIP IN LOCAL 134.  IN
ADDITION, THE BARGAINING AGREEMENT IN EFFECT AT THE TIME OF THIS
DISPUTE CONTAINED PROVISIONS FOR THE CONDITIONS OF EMPLOYMENT AND
CERTAIN WAGES OF THESE FOREMEN. 

OTHER HIGHER RANKING SUPERVISORS, HOWEVER, WERE NEITHER REPRESENTED
BY THE UNION FOR COLLECTIVE-BARGAINING PURPOSES NOR COVERED BY THE
AGREEMENT, ALTHOUGH THEY WERE PERMITTED TO MAINTAIN THEIR UNION
MEMBERSHIP.  /1/  BY VIRTUE OF THAT MEMBERSHIP, THESE SUPERVISORS, LIKE
THOSE WITHIN THE BARGAINING UNITS, RECEIVED SUBSTANTIAL BENEFITS,
INCLUDING PARTICIPATION IN THE INTERNATIONAL'S PENSION AND DEATH
BENEFIT PLANS AND IN GROUP LIFE INSURANCE AND OLD-AGE-BENEFIT PLANS
SPONSORED BY LOCAL 134. 

UNDER THE INTERNATIONAL'S CONSTITUTION, ALL UNION MEMBERS COULD BE
PENALIZED FOR COMMITTING ANY OF 23 ENUMERATED OFFENSES, INCLUDING
"(WORKING IN THE INTEREST OF ANY ORGANIZATION OR CAUSE WHICH IS
DETRIMENTAL TO, OR OPPOSED TO, THE I. B. E. W.," APP. 76, AND "(WORKING
FOR ANY INDIVIDUAL OR COMPANY DECLARED IN DIFFICULTY WITH A (LOCAL
UNION) OR THE I. B. E. W."  APP. 77. 

BETWEEN MAY 8, 1968, AND SEPTEMBER 20, 1968, LOCAL 134 ENGAGED IN AN
ECONOMIC STRIKE AGAINST THE COMPANY.  AT THE INCEPTION OF THE SRTIKE,
ILLINOIS BELL INFORMED ITS SUPERVISORY PERSONNEL THAT IT WOULD LIKE TO
HAVE THEM COME TO WORK DURING THE STOPPAGE BUT THAT THE DECISION
WHETHER OR NOT TO DO SO WOULD LEFT TO EACH INDIVIDUAL, AND THAT THOSE
WHO CHOSE NOT TO WORK WOULD NOT BE PENALIZED.  LOCAL 134, ON THE OTHER
HAND, WARNED ITS SUPERVISOR-MEMBERS THAT THEY WOULD BE SUBJECT TO
DISCIPLINARY ACTION IF THEY PERFORMED RANK-AND-FILE STRUCK WORK.  LOCAL
134 THEREUPON INITIATED DISCIPLINARY PROCEEDINGS AGAINST THESE
SUPERVISORS, AND THOSE FOUND GUILTY WERE FINED $500 EACH.  /2/  CHARGES
WERE THEN FILED WITH THE NLRB BY THE BELL SUPERVISORS PROTECTIVE
ASSOCIATION, AN ASSOCIATION FORMED BY FIVE SUPERVISORS TO OBTAIN
COUNSEL FOR AND OTHERWISE PROTECT THE SUPERVISORS WHO WORKED DURING THE
STRIKE.  THE BOARD, ONE MEMBER DISSENTING, HELD THAT IN THUS
DISCIPLINING THE SUPERVISORY PERSONNEL, THE UNION HAD VIOLATED 8 (B)
(1) (B) OF THE ACT, /3/  IN ACCORD WITH ITS DECISION OF THE SAME DAY IN
LOCAL 2150, IBEW (WISCONSIN ELECTRIC POWER CO.), 192 N. L. R. B. 77
(1971), ENFORCED, 486 F. 2D 602 (CA7 1973), CERT. PENDING NO. 73 - 877,
HOLDING 

"THE UNION'S FINING OF THE SUPERVISORS WHO WERE ACTING IN THE
EMPLOYER'S INTEREST IN PERFORMING THE STRUCK WORK SEVERELY JEOPARDIZED
THE RELATIONSHIP BETWEEN THE EMPLOYER AND ITS SUPERVISORS. 

        . . . . . 

"THE PURPOSE OF SECTION 8 (B) (1) (B) IS TO ASSURE TO THE EMPLOYER
THAT ITS SELECTED COLLECTIVE-BARGAINING REPRESENTATIVES WILL BE
COMPLETELY FAITHFUL TO ITS DESIRES.  THIS CANNOT BE ACHIEVED IF THE
UNION HAS AN EFFECTIVE METHOD, UNION DISCIPLINARY ACTION, BY WHICH IT
CAN PRESSURE SUCH REPRESENTATIVES TO DEVIATE FROM THE INTERESTS OF THE
EMPLOYER.  . . ."  192 N. L. R. B., AT 78. 

ACCORDINGLY, THE BOARD ORDERED THE UNIONS TO RESCIND THE FINES, TO
EXPUNGE ALL RECORDS THEREOF, AND TO REIMBURSE THE SUPERVISORS FOR ANY
PORTIONS OF THE FINES PAID. 

THE FLORIDA POWER & LIGHT CO. (FLORIDA POWER), THE PETITIONER IN NO.
73 - 556, HAS MAINTAINED A COLLECTIVE-BARGAINING AGREEMENT WITH THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO AND LOCALS
641, 622, 759, 820, AND 1263, REPRESENTED BY THE SYSTEM COUNCIL U-4,
/4/  SINCE 1953.  THAT AGREEMENT DOES NOT REQUIRE EMPLOYEES TO BECOME
UNION MEMBERS AS A CONDITION OF EMPLOYMENT, BUT MANY OF ITS SUPERVISORY
PERSONNEL HAVE IN FACT JOINED THE UNION.  THE COMPANY HAS ELECTED TO
RECOGNIZE THE UNION AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THESE
SUPERVISORS, AND CERTAIN ASPECTS OF THEIR WAGES AND CONDITIONS OF
EMPLOYMENT ARE PROVIDED FOR IN THE AGREEMENT.  /5/  IN ADDITION, OTHER
HIGHER SUPERVISORY PERSONNEL NOT COVERED BY THE AGREEMENT WERE ALLOWED
TO MAINTAIN UNION MEMBERSHIP, /6/  AND, ALTHOUGH NOT REPRESENTED BY THE
UNION FOR COLLECTIVE-BARGAINING PURPOSES, RECEIVED SUBSTANTIAL BENEFITS
AS A RESULT OF THEIR UNION MEMBERSHIP, INCLUDING PENSION, DISABILITY,
AND DEATH BENEFITS UNDER THE TERMS OF THE INTERNATIONAL'S
CONSTITUTION. 

SINCE THE SAME INTERNATIONAL UNION WAS INVOLVED IN BOTH NO. 73 - 556
AND NO. 73 - 795, THE UNION MEMBERS OF FLORIDA POWER BORE THE SAME
OBLIGATIONS UNDER THE INTERNATIONAL'S CONSTITUTION AS DID THE UNION
MEMBERS OF ILLINOIS BELL.  SEE SUPRA, AT 793.  WITH RESPECT TO UNION
DISCIPLINE OF SUPERVISOR MEMBERS, HOWEVER, THE FLORIDA POWER COLLECTIVE
BARGAINING AGREEMENT ITSELF PROVIDED: 

"IT IS FURTHER AGREED THAT EMPLOYEES IN (SUPERVISORY)
CLASSIFICATIONS HAVE DEFINITE MANAGEMENT RESPONSIBILITIES AND ARE THE
DIRECT REPRESENTATIVES OF THE COMPANY AT THEIR LEVEL OF WORK. 
EMPLOYEES IN THESE CLASSIFICATIONS AND ANY OTHERS IN A SUPERVISORY
CAPACITY ARE NOT TO BE JACKED UP OR DISCIPLINED THROUGH UNION MACHINERY
FOR THE ACTS THEY MAY HAVE PERFORMED AS SUPERVISORS IN THE COMPANY'S
INTEREST.  THE UNION AND THE COMPANY DO NOT EXPECT OR INTEND FOR UNION
MEMBERS TO INTERFERE WITH THE PROPER AND LEGITIMATE PERFORMANCE OF THE
FOREMAN'S MANAGEMENT RESPONSIBILITIES APPROPRIATE TO THEIR
CLASSIFICATION.  . . ."  APP. 47. 

FROM OCTOBER 22, 1969, THROUGH DECEMBER 28, 1969, THE INTERNATIONAL
UNION AND ITS LOCALS ENGAGED IN AN ECONOMIC STRIKE AGAINST FLORIDA
POWER.  DURING THE STRIKE, MANY OF THE SUPERVISORS WHO WERE UNION
MEMBERS CROSSED THE PICKET LINES MAINTAINED AT NEARLY ALL THE COMPANY'S
OPERATION FACILITIES, AND PERFORMED RANK-AND-FILE WORK NORMALLY
PERFORMED BY THE STRIKING NONSUPERVISORY EMPLOYEES.  FOLLOWING THE
STRIKE, THE UNION BROUGHT CHARGES AGAINST THOSE SUPERVISORS COVERED BY
THE BARGAINING AGREEMENT AS WELL AS THOSE NOT COVERED, ALLEGING
VIOLATIONS OF THE INTERNATIONAL UNION CONSTITUTION.  THOSE FOUND GUILTY
OF CROSSING THE PICKET LINES TO PERFORM RANK-AND-FILE WORK, AS OPPOSED
TO THEIR USUAL SUPERVISORY FUNCTIONS, RECEIVED FINES RANGING FROM $100
TO $6,000 AND MOST WERE EXPELLED FROM THE UNION, THEREBY TERMINATING
THEIR RIGHT TO PENSION, DISABILITY, AND DEATH BENEFITS.  UPON CHARGES
FILED BY FLORIDA POWER, THE BOARD, IN RELIANCE UPON ITS PRIOR DECISIONS
IN WISCONSIN ELECTRIC AND ILLINOIS BELL, HELD THAT THE PENALTIES
IMPOSED "STRUCK AT THE LOYALTY AN EMPLOYER SHOULD BE ABLE TO EXPECT
FROM ITS REPRESENTATIVES FOR THE ADJUSTMENT OF GRIEVANCES AND THEREFORE
RESTRAINED AND CORERCED EMPLOYERS IN THEIR SELECTION OF SUCH
REPRESENTATIVES," IN VIOLATION OF 8 (B) (1) (B) OF THE ACT. 
ACCORDINGLY, THE BOARD ORDERED THE UNION TO CEASE AND DESIST, TO
RESCIND AND REFUND ALL FINES, TO EXPUNGE ALL RECORDS OF THE
DISCIPLINARY PROCEEDINGS, AND TO RESTORE THOSE DISCIPLINED TO FULL
UNION MEMBERSHIP AND BENEFITS.  /7/ 

THE ILLINOIS BELL CASE WAS FIRST HEARD BY A PANEL OF THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUTI, 159 U. S. APP. D. C. 242,
487 F. 2D 1113, AND THEN ON REHEARING WAS CONSOLIDATED WITH FLORIDA
POWER AND CONSIDERED EN BANC.  IN A 5 - 4 DECISION, THE COURT HELD THAT
"(SECTION 8 (B) (1) (B) CANNOT REASONABLY BE READ TO PROHIBIT
DISCIPLINE OF UNION MEMBERS--SUPERVISORS THOUGH THEY BE--FOR
PERFORMANCE OF RANK-AND-FILE STRUCK WORK," 159 U.S. APP. D. C. 272,
300, 487 F.2D 1143, 1171, AND ACCORDINGLY REFUSED TO ENFORCE THE
BOARD'S ORDERS.  /8/  SECTION 8 (B) (1) (B), THE COURT HELD, WAS
INTENDED TO PROSCRIBE ONLY UNION EFFORTS TO DISCIPLINE SUPERVISORS FOR
THEIR ACTIONS IN REPRESENTING MANAGEMENT IN COLLECTIVE BARGAINING AND
THE ADJUSTMENT OF GRIEVANCES.  IT WAS THE COURT'S VIEW THAT WHEN A
SUPERVISOR FORSAKES HIS SUPERVISORY ROLE TO DO WORK NORMALLY PERFORMED
BY NONSUPERVISORY EMPLOYEES, HE NO LONGER ACTS AS A MANAGERIAL
REPRESENTATIVE AND HENCE "NO LONGER MERITS ANY IMMUNITY FROM
DISCIPLINE."  ID., AT 286, 487 F. 2D, AT 1157.  WE GRANTED CERTIORARI,
414 U. S. 1156, TO CONSIDER AN IMPORANT AND NOVEL QUESTION OF FEDERAL
LABOR LAW. 

        II 

PERTINENT PART: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR
ITS AGENTS--(1) TO RESTRAIN OR COERCE . . . (B) AN EMPLOYER IN THE
SELECTION OF HIS REPRESENTATIVES FOR THE PURPOSES OF COLLECTIVE
BARGAINING OR THE ADJUSTMENT OF GRIEVANCES."  THE BASIC IMPORT OF THIS
PROVISION WAS EXPLAINED IN THE SENATE REPORT AS FOLLOWS: 

"(A) UNION OR ITS RESPONSIBLE AGENTS COULD NOT, WITHOUT VIOLATING
THE LAW, COERCE AN EMPLOYER INTO JOINING OR RESIGNING FROM AN EMPLOYER
ASSOCIATION WHICH NEGOTIATES LABOR CONTRACTS ON BEHALF OF ITS MEMBERS;
ALSO, THIS SUBSECTION WOULD NOT PERMIT A UNION TO DICTATE WHO SHALL
REPRESENT AN EMPLOYER IN THE SETTLEMENT OF EMPLOYEE GRIEVANCES, OR TO
COMPEL THE REMOVAL OF A PERSONNEL DIRECTOR OR SUPERVISOR WHO HAS BEEN
DELEGATED THE FUNCTION OF SETTLING GRIEVANCES."  /9/ 

FOR MORE THAN 20 YEARS AFTER 8 (B) (1) (B) WAS ENACTED IN 1947, THE
BOARD CONFINED ITS APPLICATION TO SITUATIONS CLEARLY FALLING WITIN THE
METES AND BOUNDS OF THE STATUTORY LANGUAGE.  THUS, IN LOS ANGELES CLOAK
JOINT BOARD ILGWU (HELEN ROSE CO.), 127 N. L. R. B. 1543 (1960), THE
BOARD HELD THAT 8 (B) (1) (B) BARRED A UNION FROM PICKETING A COMPANY
IN AN ATTEMPT TO FORCE THE EMPLOYER TO DISMISS AN INDUSTRIAL RELATIONS
CONSULTANT THOUGHT TO BE HOSTILE TO THE UNION.  SEE ALSO LOCAL 986,
MISCELLANEOUS WAREHOUSEMEN, DRIVERS & HELPERS (TAK-TRAK, INC.), 145 N.
L. R. B. 1511 (1964); SOUTHERN CALIFORNIA PIPE TRADES DISTRICT COUNCIL
NO. 16 (PADDOCK POOLS OF CALIFORNIA, INC.), 120 N. L. R. B. 249
(1958).  SIMILARLY, THE BOARD HELD THAT 8 (B) (1) (B) WAS VIOLATED BY
UNION ATTEMPTS TO FORCE EMPLOYERS TO JOIN OR RESIGN FROM MULTI-EMPLOYER
BARGAINING ASSOCIATIONS, UNITED SLATE, TILE & COMPOSITION ROOFORES,
LOCAL 36 (ROOFING CONTRACTORS ASSN. OF SOUTHERN CALIFORNIA), 172 N. L.
R. B. 2248 (1968); ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48
(PAINTING & DECORATING CONTRACTORS OF AMERICA, INC.), 152 N. L. R. B.
1136 (1965); GENERAL TEAMSTERS LOCAL UNION NO. 324 (CASCADE EMPLOYERS
ASSN., INC.), 127 N. L. R. B. 488 (1960), AS WELL AS BY ATTEMPTS TO
COMPEL EMPLOYERS TO SELECT FORMEN FROM THE RANKS OF UNION MEMBERS,
INTERNATIONAL TYPOGRAPHICAL UNION & BALTIMORE TYPOGRAPHICAL UNION NO.
12 (GRAPHIC ARTS LEAGUE), 87 N. L. R. B. 1215 (1949); INTERNATIONAL
TYPOGRAPHICAL UNION (AMERICAN NEWSPAPER PUBLISHERS ASSN.), 86 N. L. R.
B. 951 (1949), ENFORCED, 193 F. 2D 782 (CA7 1951); INTERNATIONAL
TYPOGRAPHICAL UNION (HAVERHILL GAZETTE CO.), 123 N. L. R. B. 806
(1959), ENFORCED, 278 F. 2D 6 (CA1 1960), AFF'D BY AN EQUALLY DIVIDED
COURT, 365 U. S. 705 (1961).  /10/ 

IN 1968, HOWEVER, THE BOARD SIGNIFICANTLY EXPANDED THE REACH OF 8
(B) (1) (B), WITH ITS DECISION IN SAN FRANCISCO-OAKLAND MAILERS' UNION
NO. 18 (NORTHWEST PUBLICATIONS, INC.), 172 N. L. R. B. 2173.  IN THAT
CASE, THREE UNION-MEMBER FOREMEN WERE EXPELLED FROM THE UNION FOR
ALLEGEDLY ASSIGNING BARGAINING UNIT WORK IN VIOLATION OF THE COLLECTIVE
BARGAINING AGREEMENT.  DESPITE THE ABSENCE OF UNION PRESSURE OR
COERCION AIMED AT SECURING THE REPLACEMENT OF THE FOREMEN, THE BOARD
HELD THAT THE UNION HAD VIOLATED 8 (B) (1) (B) BY SEEKING TO INFLUENCE
THE MANNER IN WHICH THE FOREMEN INTERPRETED THE CONTRACT: 

"THAT RESPONDENT MAY HAVE SOUGHT THE SUBSTITUTION OF ATTITUDES
RATHER THAN PERSONS, AND MAY HAVE EXERTED ITS PRESSURES UPON THE
CHARGING PARTY BY INDIRECT RATHER THAN DIRECT MEANS, CANNOT ALTER THE
ULTIMATE FACT THAT PRESSURE WAS EXERTED HERE FOR THE PURPOSE OF
INTERFERING WITH THE CHARGING PARTY'S CONTROL OVER ITS
RESPRESENTATIVES.  REALISTICALLY, THE EMPLOYER WOULD HAVE TO REPLACE
ITS FOREMEN OR FACE DE FACTO NONREPRESENTATION BY THEM."  IBID. 
SUBSEQUENT BOARD DECISIONS EXTENDED 8 (B) (1) (B) TO PROSCRIBE UNION
DISCIPLINE OF MANAGEMENT REPRESENTATIVES BOTH FOR THE MANNER IN WHICH
THEY PERFORMED THEIR COLLECTIVE-BARGAINING AND GRIEVANCE-ADJUSTING
FUNCTIONS, AND FOR THE MANNER IN WHICH THEY PERFORMED OTHER SUPERVISORY
FUNCTIONS IF THOSE REPRESENTATIVES ALSO IN FACT POSESSED AUTHORITY TO
BARGAIN COLLECTIVELY OR TO ADJUST GRIEVANCES.  SEE DETROIT NEWSPAPER
PRINTING PRESSMEN'S UNION 13, 192 N. L. R. B. 106 (1971); MEAT CUTTERS
UNION LOCAL 81, 185 N. L. R. B. 884 (1970), ENFORCED, 147 U. S. APP. D.
C. 375, 458 F. 2D 794 (1972); HOUSTON TYPOGRAPHICAL UNION LOCAL 143
(DOW JONES CO., INC.), 181 N. L. R. B. 286 (1970), ENFORCED, 144 U. S.
APP. D. C. 254, 445 F. 2D 730 (1971); SHEET METAL WORKERS'
INTERNATIONAL ASSN., LOCAL UNION 49 (GENERAL METAL PRODUCTS, INC.), 178
N. L. R. B. 139 (1969), ENFORCED, 430 F. 2D 1348 (CA10 1970); NEW
MEXICO DISTRICT COUNCIL OF CARPENTERS & JOINERS OF AMERICA (A. S.
HORNER, INC.), 176 N. L. R. B. 797 AND 177 N. L. R. B. 500 (1969), BOTH
ENFORCED, 454 F. 2D 1116 (CA10 1972); TOLEDO LOCALS NOS. 15 - P & 272,
LITHOGRAPHERS & PHOTOENGRAVERS INTERNATIONAL (TOLEDO BLADE CO., INC.),
175 N. L. R. B. 1072 (1969), ENFORCED, 437 F. 2D 55 (CA6 1971).  /11/ 

THESE DECISIONS REFLECTED A FURTHER EVOLUTION OF THE OAKLAND MAILERS
DOCTRINE.  IN OAKLAND MAILERS, THE UNION HAD DISCIPLINED ITS SUPERVISOR
MEMBERS FOR AN ALLEGED MISINTERPRETATION OR MISAPPLICATION OF THE
COLLECTIVE-BARGAINING AGREEMENT, AND THE BOARD HAD REASONED THAT THE
NATURAL AND FORESEEABLE EFFECT OF SUCH DISCIPLINE WAS THAT IN
INTERPRETING THE AGREEMENT IN THE FUTURE, THE SUPERVISOR WOULD BE
RELUCTANT TO TAKE A POSITION ADVERSE TO THAT OF THE UNION.  IN THE
SUBSEQUENT CASES, HOWEVER, THE BOARD HELD THAT THE SAME COERCIVE EFFECT
WAS LIKELY TO ARISE FROM THE DISCIPLINING OF A SUPERVISOR WHENEVER HE
WAS ENGAGED IN MANAGEMENT OR SUPERVISORY ACTIVITIES, EVEN THOUGH HIS
COLLECTIVE-BARGAINING OR GRIEVANCE-ADJUSTMENT DUTIES WERE NOT
INVOLVED.  THROUGH THE COURSE OF THESE DECISIONS, 8 (B) (1) (B) THUS
BEGAN TO EVOLVE IN THE VIEW OF THE BOARD AND THE COURTS "AS A GENERAL
PROHIBITION OF A UNION'S DISCIPLINING SUPERVISOR-MEMBERS FOR THEIR
CONDUCT IN THE COURSE OF REPRESENTING THE INTERESTS OF THEIR
EMPLOYERS."  TOLEDO LOCALS NOS. 15 -P & 272, LITHOGRAPHERS &
PHOTOENGRAVERS INTERNATIONAL, 175 N. L. R. B., AT 1080, OR FOR ACTS "
PERFORMED IN THE COURSE OF (THEIR) MANAGEMENT DUTIES,"  MEAT CUTTERS
UNION LOCAL 81 V. NLRB, 147 U. S. APP. D. C., AT 377, 458 F. 2D, AT
796.  /12/ 

IN THE PRESENT CASES, THE BOARD HAS EXTENDED THAT DOCTRINE TO HOLD
THAT 8 (B) (1) (B) FORBIDS UNION DISCIPLINE OF SUPERVISORS FOR
PERFORMANCE OF RANK-AND-FILE WORK ON THE THEORY THAT THE PERFORMANCE OF
SUCH WORK DURING A STRIKE IS AN ACTIVITY FURTHERING MANAGEMENT'S
INTERESTS.  /13/  WE AGREE WITH THE COURT OF APPEALS THAT 8 (B) (1) (B)
CANNOT BE SO BROADLY READ.  BOTH THE LANGUAGE AND THE LEGISLATIVE
HISTORY OF 8 (B) (1) (B) REFLECT A CLEARLY FOCUSED CONGRESSIONAL
CONCERN WITH THE PROTECTION OF EMPLOYERS IN THE SELECTION OF
REPRESENTATIVES TO ENGAGE IN TWO PARTICULAR AND EXPLICITLY STATED
ACTIVITIES, NAMELY COLLECTIVE BARGAINING AND THE ADJUSTMENT OF
GRIEVANCES.  BY ITS TERMS, THE STATUTE PROSCRIBES ONLY UNION RESTRAINT
OR COERCION OF AN EMPLOYER "IN THE SELECTION OF HIS REPRESENTATIVES FOR
THE PURPOSES OF COLLECTIVE BARGAINING OR THE ADJUSTMENT OF GRIEVANCES,"
AND THE LEGISLATIVE HISTORY MAKES CLEAR THAT IN ENACTING THE PROVISION
CONGRESS WAS EXCLUSIVELY CONCERNED WITH UNION ATTEMPTS TO DICTATE TO
EMPLOYERS WHO WOULD REPRESENT THEM IN COLLECTIVE BARGAINING AND
GRIEVANCE ADJUSTMENT. 

THE SPECIFIC CONCERN OF CONGRESS WAS TO PREVENT UNIONS FROM TRYING TO
FORCE EMPLOYERS INTO OR OUT OF MILTI-EMPLOYER BARGAINING UNITS.  /14/
AS SENATOR TAFT, COSPONSOR OF THE LEGISLATION, EXPLAINED:

"UNDER THIS PROVISON IT WOULD BE IMPOSSIBLE FOR A UNION TO SAY TO A
COMPANU, 'WE WILL NOT BARGAIN WITH YOU UNLESS YOU APPOINT YOUR NATIONAL
EMPLOYERS'  ASSOCIATION AS YOUR AGENT SO THAT WE CAN BARGAIN
NATIONALLY.'  UNDER THE BILL THE EMPLOYER HAS A RIGHT TO SAY, 'NO, I
WILL NOT JOIN IN NATIONAL BARGAINING.  HERE IS MY REPRESENTATIVE, AND
THIS IS THE MAN YOU HAVE TO DEAL WITH.'  I BELIEVE THE PROVISION IS A
NECESSARY ONE, AND ONE WHICH WILL ACCOMPLISH SUBSTANTIALLY WISE
PURPOSES."  93 CONG. REC. 3837. 

THAT THE LEGISLATIVE CREATION OF THIS UNFAIR LABOR PRACTICE WAS IN
NO SENSE INTENDED TO CUT THE BROAD SWATH ATTRIBUTED TO IT BY THE BOARD
IN THE PRESENT CASES IS POINTED UP BY THE FURTHER OBSERVATION OF
SENATOR TAFT THAT: 

"THIS UNFAIR LABOR PRACTICE REFERRED TO IS NOT PERHAPS OF

  TREMENDOUS IMPORTANCE, BUT EMPLOYEES CANNOT SAY TO THEIR

  EMPLOYER, 'WE DO NOT LIKE MR. X, WE WILL NOT MEET MR. X. YOU HAVE

  TO SEND US MR. Y.'  THAT HAS BEEN DONE.  IT WOULD PREVENT THEIR

  SAYING TO THE EMPLOYER, 'YOU HAVE TO FIRE FOREMAN JONES.  WE DO

  NOT LIKE FOREMAN JONES, AND THEREFORE YOU WILL HAVE TO FIRE HIM,

  OR WE WILL NOT GO TO WORK.'"  93 CONG. REC. 3837.  /15/ 

NOWHERE IN THE LEGISLATIVE HISTORY IS THERE TO BE FOUND ANY
IMPLICATION THAT CONGRESS SOUGHT TO EXTEND PROTECTION TO THE EMPLOYER
FROM UNION RESTRAINT OR COERCION WHEN ENGAGED IN ANY ACTIVITY OTHER
THAN THE SELECTION OF ITS REPRESENTATIVES FOR THE PURPOSES OF
COLLECTIVE BARGAINING AND GRIEVANCE ADJUSTMENT.  THE CONCLUSION IS THUS
INESCAPABLE THAT A UNION'S DISCIPLINE OF ONE OF ITS MEMBERS WHO IS A
SUPERVISORY EMPLOYEE CAN CONSTITUTE A VIOLATION OF 8 (B) (1) (B) ONLY
WHEN THAT DISCIPLINE MAY ADVERSELY AFFECT THE SUPERVISOR'S CONDUCT IN
PERFORMING THE DUTIES OF, AND ACTING IN HIS CAPACITY AS, GRIEVANCE
ADJUSTER OR COLLECTIVE BARGAINER ON BEHALF OF THE EMPLOYER. 

WE MAY ASSUME WITHOUT DECIDING THAT THE BOARD'S OAKLAND MAILERS
DECISION FELL WITHIN THE OUTER LIMITS OF THIS TEST, BUT ITS DECISIONS
IN THE PRESENT CASES CLEARLY DO NOT.  FOR IT IS CERTAIN THAT THESE
SUPERVISORS WERE NOT ENGAGED IN COLLECTIVE BARGAINING OR GRIEVANCE
ADJUSTMENT, OR IN ANY ACTIVITIES RELATED THERETO, WHEN THEY CROSSED
UNION PICKET LINES DURING AN ECONOMIC STRIKE TO ENGAGE IN RANK-AND-FILE
STRUCK WORK.  /16/

        III 

IT IS STRENUOUSLY ASSERTED, HOWEVER, THAT TO PERMIT A UNION TO
DISCIPLINE SUPERVISOR-MEMBERS FOR PERFORMING RANK-AND-FILE WORK DURING
AN ECONOMIC STRIKE WILL DEPRIVE THE EMPLOYER OF THE FULL LOYALTY OF
THOSE SUPERVISORS.  INDEED, IT IS PRECISELY THAT CONCERN THAT IS
REFLECTED IN THESE AND OTHER RECENT DECISIONS OF THE BOARD HOLDING THAT
THE STATUTORY LANGUAGE "RESTRAIN OR COERCE . . . AN EMPLOYER IN THE
SELECTION OF HIS REPRESENTATIVES FOR THE PURPOSES OF COLLECTIVE
BARGAINING OR THE ADJUSTMENT OF GRIEVANCES" IS NOT CONFINED TO
SITUATIONS IN WHICH THE UNION'S OBJECT IS TO FORCE A CHANGE IN THE
IDENTITY OF THE EMPLOYER'S REPRESENTATIVES, BUT MAY PROPERLY BE READ TO
ENCOMPASS ANY SITUATION IN WHICH THE UNION'S ACTIONS ARE LIKELY TO
DEPRIVE THE EMPLOYER OF THE UNDIVIDED LOYALTY OF THIS SUPERVISORY
EMPLOYEES.  AS THE BOARD STATED IN WISCONSIN ELECTRIC: 

"DURING THE STRIKE OF THE UNION, THE EMPLOYER CLEARLY CONSIDERED ITS
SUPERVISORS AMONG THOSE IT COULD DEPEND ON DURING THIS PERIOD.  THE
UNION FINING OF THE SUPERVISORS WHO WERE ACTING IN THE EMPOLYER'S
INTEREST IN PERFORMING THE STRUCK WORK SEVERELY JEOPARDIZED THE
RELATIONSHIP BETWEEN THE EMPLOYER AND ITS SUPERVISORS.  THUS, THE
FINES, IF FOUND TO BE LAWFUL, WOULD NOW PERMIT THE UNION TO DRIVE A
WEDGE BETWEEN A SUPERVISOR AND THE EMPLOYER, THUS INTERFERING WITH THE
PERFORMANCE OF THE DUTIES THE EMPLOYER HAD A RIGHT TO EXPECT THE
SUPERVISOR TO PERFORM.  THE EMPLOYER COULD NO LONGER COUNT ON THE
COMPLETE AND UNDIVIDED LOYALTY OF THOSE IT HAD SELECTED TO ACT AS ITS
COLLECTIVE-BARGAINING AGENTS OR TO ACT FOR IT IN ADJUSTING GRIEVACES. 
MOREOVER, SUCH FINES CLEARLY INTERFERE WITH THE EMPLOYER'S CONTROL OVER
ITS OWN REPRESENTATIVES.  "THE PURPOSE OF SECTION 8 (B) (1) (B) IS TO
ASSURE TO THE EMPLOYER THAT ITS SELECTED COLLECTIVE-BARGAINING
REPRESENTATIVES WILL BE COMPLETELY FAITHFUL TO ITS DESIRES.  THIS
CANNOT BE ACHIEVED IF THE UNION HAS AN EFFECTIVE METHOD, UNION
DISCIPLINARY ACTION, BY WHICH IT CAN PRESSURE SUCH REPRESENTATIVES TO
DEVIATE FROM THE INTERESTS OF THE EMPLOYER."  192 N. L. R. B., AT 78. 

THE BOARD'S BRIEF IN THE PRESENT CASES ECHOES THIS VIEW IN ARGUING
THAT "WHERE A SUPERVISOR IS DESCIPLINED BY THE UNION FOR PERFORMING
OTHER SUPERVISORY OR MANAGEMENT FUNCTIONS, THE LIKELY EFFECT OF SUCH
DISCIPLINE IS TO MAKE HIM SUBSERVIENT TO THE UNION'S WISHES WHEN HE
PERFORMS THOSE FUNCTIONS IN THE FUTURE.  THUS, EVEN IF THE EFFECT OF
THIS DISCIPLINE DID NOT CARRY OVER TO THE PERFORMANCE OF THE
SUPERVISOR'S GRIEVANCE ADJUSTMENT OR COLLECTIVE BARGAINING FUNCTIONS,
THE RESULT WOULD BE TO DEPRIVE THE EMPLOYER OF THE FULL ALLEGIANCE OF,
AND CONTROL OVER, A REPRESENTATIVE HE HAS SELECTED FOR GRIEVANCE
ADJUSTMENT OR COLLECTIVE BARGAINING PURPOSES."  BRIEF FOR PETITIONER IN
NO. 73 - 795, P. 34. 

THE CONCERN EXPRESSED IN THIS ARGUMENT IS A VERY REAL ONE, BUT THE
PROBLEM IS ONE THAT CONGRESS ADDRESSED, NOT THROUGH 8 (B) (1) (B), BUT
THROUGH A COMPLETELY DIFFERENT LEGISLATIVE ROUTE.  SPECIFICALLY,
CONGRESS IN 1947 AMENDED THE DEFINITION OF "EMPLOYEE" IN 2 (3), 29
U.S.C. 152 (3), TO EXCLUDE THOSE DENOMINATED SUPERVISORS UNDER 2 (11),
29 U.S.C. 152 (11), THEREBY EXCLUDING THEM FROM THE COVERAGE OF THE
ACT.  /17/  SEE NLRB V. BELL AEROSPACE CO., 416 U. S. 267 (1974). 
FURTHER, CONGRESS ENACTED 14 (A), 29 U.S.C. 164 (A), EXPLICITLY
PROVIDING: 

"NOTHING HEREIN SHALL PROHIBIT ANY INDIVIDUAL EMPLOYED AS A
SUPERVISOR FROM BECOMING OR REMAINING A MEMBER OF A LABOR ORGANIZATION,
BUT NO EMPLOYER SUBJECT TO THIS SUBCHAPTER SHALL BE COMPELLED TO DEEM
INDIVIDUALS DEFINED HEREIN AS SUPERVISORS AS EMPLOYEES FOR THE PURPOSE
OF ANY LAW, EITHER NATIONAL OR LOCAL, RELATING TO COLLECTIVE
BARGAINING." 

THUS, WHILE SUPERVISORS ARE PERMITTED TO BECOME UNION MEMBERS,
CONGRESS SOUGHT TO ASSURE THE EMPLOYER OF THE LOYALTY OF HIS
SUPERVISORS BY RESERVING IN HIM THE RIGHT TO REFUSE TO HIRE UNION
MEMBERS AS SUPERVISORS, SEE CARPENTERS DISTRICT COUNCIL V. NLRB, 107 U.
S. APP. D. C. 55, 274 F.2D 564 (1959); A. H. BULL S.S. CO. V. NATIONAL
MARINE ENGINEER'S BENEFICIAL ASSN., 250 F.2D 332 (CA2 1957), THE RIGHT
TO DISCHARGE SUCH SUPERVISORS BECAUSE OF THEIR INVOLVEMENT IN UNION
ACTIVITIES OR UNION MEMBERSHIP, SEE BEASLEY V. FOOD FAIR OF NOTH
CAROLINA, INC., 416 U. S. 653 (1974); SEE ALSO OIL CITY BRASS WORKS V.
NLRB, 357 F.2D 466 (CA5 1966); NLRB V. FULLERTON PUBLISHING CO., 283
F.2D 545 (CA9 1960); NLRB V. GRIGGS EQUIPMENT, INC., 307 F.2D 275 (CA5
1962); NLRB V. EDWARD G. BUDD MFG. CO., 169 F. 2D 571 (CA6 1948), CERT.
DENIED, 335 U. S. 908 (1949), /18/  AND THE RIGHT TO REFUSE TO ENGAGE
IN COLLECTIVE BARGAINING WITH THEM, SEE L. A YOUNG SPRING & WIRE CORP.
V. NLRB, 82 U. S. APP. D. C. 327, 163 F.2D 905 (1947), CERT. DENIED,
333 U. S. 837 (1948). 

THE LEGISLATIVE HISTORY OF 2 (3) AND 14 (A) OF THE ACT CLEARLY
INDICATES THAT THOSE PROVISIONS WERE ENACTED IN RESPONSE TO THE
DECISION IN PACKARD NOTER CAR CO. V. NLRB, 330 U. S. 485 (1947), IN
WHICH THIS COURT UPHELD THE BOARD'S FINDING THAT THE STATUTORY
DEFINITION OF "EMPLOYEE"  INCLUDED FOREMEN, AND THAT THEY WERE
THEREFORE ENTITLED TO THE COVERAGE OF THE ACT IN THE ABSENCE OF A
DECISION BY CONGRESS TO EXCLUDE THEM.  /19/  IN RECOMMENDING PASSAGE OF
THIS LEGISLATION, THE SENATE REPORT NOTED: 

     "IT IS NATURAL TO EXPECT THAT UNLESS THIS CONGRESS TAKES

  ACTION, MANAGEMENT WILL BE DEPRIVED OF THE UNDIVIDED LOYALTY OF

  ITS FOREMAN.  THERE IS AN INHERENT TENDENCY TO SUBORDINATE THEIR

  INTERESTS WHEREVER THEY CONFLICT WITH THOSE OF THE RANK AND

  FILE."  SENATE REPORT 5. 

A SIMILAR CONCERN WITH THIS CONFLICT-OF-LOYALTIES PROBLEM WAS REFLECTED
IN THE HOUSE REPORT: 

     "THE EVIDENCE BEFORE THE COMMITTEE SHOWS CLEARLY THAT

  UNIONIZING SUPERVISORS UNDER THE LABOR ACT IS INCONSISTENT WITH .

  . . OUR POLICY TO PROTECT THE RIGHTS OF EMPLOYERS; THEY, AS WELL

  AS WORKERS, ARE ENTITLED TO LOYAL REPRESENTATIVES IN THE PLANTS,

  BUT WHEN THE FOREMEN UNIONIZE, EVEN IN A UNION THAT CLAIMS TO BE

  'INDEPENDENT' OF THE UNION OF THE RANK AND FILE, THEY ARE SUBJECT

  TO INFLUENCE AND CONTROL BY THE RANK AND FILE UNION, AND, INSTEAD

  OF THEIR BOSSING THE RANK AND FILE, THE RANK AND FILE BOSSES

  THEM. 

        . . . . . 

     "THE BILL DOES NOT FORBID ANYONE TO ORGANIZE.  IT DOES NOT

  FORBID ANY EMPLOYER TO RECOGNIZE A UNION OF FOREMEN.  EMPLOYERS

  WHO, IN THE PAST, HAVE BARGAINED COLLECTIVELY WITH SUPERVISORS

  MAY CONTINUE TO DO SO.  WHAT THE BILL DOES IS TO SAY WHAT THE LAW

  ALWAYS HAS SAID UNTIL THE LABOR BOARD, IN THE EXERCISE OF WHAT IT

  MODESTLY CALLS ITS 'EXPERTNESS', CHANGED THE LAW: THAT NO ONE,

  WHETHER EMPLOYER OR EMPLOYEE, NEED HAVE AS HIS AGENT ONE WHO IS

OBLIGATED TO THOSE ON THE OTHER SIDE, OR ONE WHOM, FOR ANY

REASON, HE DOES NOT TRUST."  HOUSE REPORT 14 - 17.  /20/ 

IT IS CLEAR THAT THE CONFLICT-OF-LOYALTIES PROBLEM THAT THE BOARD
HAS SOUGHT TO REACH UNDER 8 (B) (1) (B) WAS INTENDED BY CONGRESS TO BE
DEALT WITH IN A VERY DIFFERENT MANNER.  /21/  AS WE CONCLUDED IN
BEASLEY V. FOOD FAIR OF NORTH CAROLINA, INC., 416 U. S., AT 661 - 662: 

"THIS HISTORY COMPELS THE CONCLUSION THAT CONGRESS DOMINANT PURPOSE
IN AMENDING 2 (3) AND 2 (11), AND ENACTING 14 (A) WAS TO REDRESS A
PERCEIVED IMBALANCE IN LABOR-MANAGEMENT RELATIONSHIPS THAT WAS FOUND TO
ARISE FROM PUTTING SUPERVISORS IN THE POSITION OF SERVING TWO MASTERS
WITH OPPOSED INTERESTS."     WHILE WE RECOGNIZE THAT THE LEGISLATIVE
ACCOMMODATION ADOPTED IN 1947 IS FRAUGHT WITH DIFFICULTIES OF ITS OWN,
"(IT IS NOT NECESSARY FOR US TO JUSTIFY THE POLICY OF CONGRESS.  IT IS
ENOUGH THAT WE FIND IT IN THE STATUTE."  COLGATE-PALMOLIVE PEET CO. V.
NLRB, 338 U. S. 355, 363 (1949).  /22/ 

CONGRESS' SOLUTION WAS ESSENTIALLY ONE OF PROVIDING THE EMPLOYER
WITH AN OPTION.  ON THE ONE HAND, HE IS AT LIBERTY TO DEMAND ABSOLUTE
LOYALTY FROM HIS SUPERVISORY PERSONNEL BY INSISTING, ON PAIN OF
DISCHARGE, THAT THEY NEITHER PARTICIPATE IN, NOR RETAIN MEMBERSHIP IN,
A LABOR UNION, SEE BEASLEY V. FOOD FAIR OF NORTH CAROLINA, INC., SUPRA.
ALTERNATIVELY, AN EMPLOYER WHO WISHES TO DO SO CAN PERMIT HIS
SUPERVISORS TO JOIN OR RETAIN THEIR MEMBERSHIP IN LABOR UNIONS,
RESOLVING SUCH CONFLICTS AS ARISE THROUGH THE TRADITIONAL PROCEDURES OF
COLLECTIVE BARGAINING.  /23/  BUT IT IS QUITE APPARENT, GIVEN THE
STATUTORY LANGUAGE AND THE PARTICULAR CONCERNS THAT THE LEGISLATIVE
HISTORY SHOWS WERE WHAT MOTIVATED CONGRESS TO ENACT 8 (B)(1)(B), THAT
IT DID NOT INTEND TO MAKE THAT PROVISION ANY PART OF THE SOLUTION TO
THE GENERALIZED PROBLEM OF SUPERVISOR-MEMBER CONFLICT OF LOYALTIES. 

FOR THESE REASONS, WE HOLD THAT THE RESPONDENT UNIONS DID NOT
VIOLATE 8 (B) (1) (B) OF THE ACT WHEN THEY DISCIPLINED THEIR SUPERVISOR
MEMBERS FOR PERFORMING RANK-AND-FILE STRUCK WORK.  ACCORDINGLY, THE
JUDGMENT IS

              AFFIRMED. 

/1/  UNDER A LETTER OF UNDERSTANDING SIGNED BY ILLINOIS BELL AND
LOCAL 134 IN 1954 AND REAFFIRMED IN 1971, IT WAS PROVIDED:  "AS
DISTRICT INSTALLATION SUPERINTENDENTS AND DISTRICT CONSTRUCTIONS
SUPERVISORS THEIR WAGES AND CONDITIONS OF EMPLOYMENT WILL NOT BE A
MATTER OF UNION-MANAGMENT NEGOTIATIONS BUT THEY WILL NOT BE REQUIRED TO
DISOCONTINUE THEIR MEMBERSHIP IN THE UNION AS IT IS RECOGNIZED THAT
THEY HAVE ACCOMULATED A VESTED INTEREST PENSION AND INSURANCE BENEFITS
AS A RESULT OF THEIR MEMBERSHIP IN THE UNION.  HOWEVER, ANY ALLEGIANCE
THEY OWE TO THE UNION SHALL NOT AFFECT THEIR JUDGMENT IN THE
DISPOSITION OF THEIR SUPERVISORY DUTIES.  SINCE THEY WILL GIVE UNDER
THEIR SUPERVISION EMPLOYEES WHO ARE MEMBERS OF UNIONS OTHER THAN LOCAL
134 AND PERHAPS SOME WITH NO UNION AFFILIATIONS WHATEVER, THE COMPANY
WILL EXPECT THE SAME IMPARTIAL JUDGMENT THAT IT DEMANDS FROM ALL
SUPERVISORY PERSONNEL."  APP. 113. 

/2/  LOCAL 134 ALSO IMPOSED FINES OF $1,000 UPON EACH OF THE FIVE
SUPERVISORS WHO HAD FORMED THE BELL SUPERVISORS PROTECTIVE
ASSOCIATION. 

/3/  INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, AND
LOCAL 134, 192 N. L. R. B. 85 (1971) (HEREINAFTER ILLINOIS BELL). 

/4/  SYSTEM COUNCIL U-4 WAS NAMED AS A RESPONDENT IN THE COMPLAINT,
BUT THE BOARD DISMISSED ALL CHARGES AGAINST IT AND ENTERED ITS ORDER
ONLY AGAINST THE LOCAL UNIONS. 

/5/  SUPERVISORY EMPLOYEES THUS INCLUDED ARE DISTRICT SUPERVISORS,
ASSISTANT DISTRICT SUPERVISORS, ASSISTANT SUPERVISORS, PLANT
SUPERINTENDENTS, PLANT SUPERVISORS, ASSISTANT PLANT SUPERINTENDENTS,
DISTRIBUTION ASSISTANTS, RESULTS ASSISTANTS, ASSISTANT PLANT ENGINEERS,
AND SUBSECTION SUPERVISORS. 

/6/  IN BOTH ILLINOIS BELL AND THIS CASE, SOME OF THE SUPERVISORS
INVOLVED, THROUGH UNION MEMBERS, DID NOT ACTIVELY PARTICIPATE IN UNION
AFFAIRS AND PAID NO DUES.  THIS WAS BECAUSE THEY HELD "HONORARY"
WITHDRAWAL CARDS, PERMITTING THEM TO RETURN TO ACTIVE MEMBERSHIP
WITHOUT PAYING NORMAL INITIATION FEES IN THE EVENT THEY RETURNED TO
RANK-AND-FILE WORK.  THESE CARDS ALSO PERMITTED THEIR HOLDERS TO
CONTINUE PARTICIPATION IN THE INTERNATIONAL'S DEATH-BENEFIT FUND. 
OTHER SUPERVISORS HELD "PARTICIPATING" WITHDRAWAL CARDS UNDER WHICH
THEY CONTINUED TO PAY A FEE EQUAL TO THE MONTHLY DUES AND REMAINED
ELIGIBLE FOR PENSION, DEATH, AND DISABILITY BENEFITS.  THE HOLDERS OF
THESE CARDS WERE ALSO NOT PERMITTED TO PARTICIPATE IN OTHER UNION
AFFAIRS. 

/7/  INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS SUSTEM COUNCIL
U-4, 193 N. L. R. B. 30, 31 (1971) (HEREINAFTER FLORIDA POWER). 

/8/  159 U. S. APP. D. C. 272, 487 F.2D 1143 (1973). 

/9/  S. REP, NO. 105, 80TH CONG., 1ST SESS. (HEREINAFTER SENAT
REPORT), PT. 1, P. 21 (1947). 

/10/  THE HAVERHILL GAZETTE CASE WAS TYPICAL.  THERE THE UNION HAD
DEMANDED THE INCLUSION OF A "FOREMAN CLAUSE" PROVIDING THAT THE
COMPOSING ROOM, FOREMAN, WHO HAD THE POWER TO HIRE, FIRE, AND PROCESS
GRIEVANCES, MUST BE A MEMBER OF THE UNION, ALTHOUGH HE WOULD BE
EXEMPTED FROM UNION DISCIPLINE IN CERTAIN CIRCUMSTANCES FOR ACTIVITIES
ON BEHALF OF MANAGEMENT.  AS THE COURT OF APPEALS POINTED OUT:  "NOT
ONLY WOULD THE CLAUSE . . . LIMIT THE EMPLOYERS' CHOICE OF FOREMEN TO
UNION MEMBERS, BUT IT WOULD ALSO GIVE THE UNIONS POWER TO FORCE THE
DISCHARGE OR DEMOTION OF A FOREMAN BY EXPELLING HIM FROM THE UNION." 
278 F.2D, AT 12. 

/11/  IN TOLEDO BLADE, TWO SUPERVISORS WERE DISCIPLINED BY THE UNION
FOR WORKING IN A CREW SMALLER THAN THE CONTRACTUALLY PRESCRIBED MINIMUM
AND FOR DOING PRODUCTION WORK IN EXCESS OF THE CONTRACTUALLY PERMITTED
MAXIMUM.  THESE ACTIVITIES OCCURRED DURING AN ECONOMIC STRIKE.  THE
TRIAL EXAMINER, IN A HOLDING WHICH FORESHADOWED THE CASES NOW BEFORE
US, NOTED THAT SUCH DISCIPLINE IS AN UNWARRANTED INTERFERENCE WITH THE
EMPLOYER'S CONTROL OVER ITS OWN REPRESENTATIVES AND "DEPRIVES THE
EMPLOYER OF THE UNDIVIDED LOYALTY OF THE SUPERVISOR TO WHICH IT IS
ENTITLED.  IF, THEREFORE, THE SUPERVISOR HAS ACTUALLY BEEN DESIGNATED
AS THE EMPLOYER'S BARGAINING OR GRIEVANCE REPRESENTATIVE . . . THE
UNION DISCIPLINE OF THE SUPERVISOR IS UNQUESTIONABLY A RESTRAINT UPON,
AND COERCION OF THE EMPLOYER'S CONTINUING ITS SELECTION OF, AND
RELIANCE UPON, THE SUPERVISOR AS ITS BARGAINING AND GRIEVANCE
REPRESENTATIVE."  175 N. L. R. B., AT 1080 - 1081. 

IN ENFORCING THE BOARD'S ORDER, THE COURT OF APPEALS NOTED: "THIS
CONDUCT OF THE UNION WOULD FURTHER OPERATE TO MAKE THE EMPLOYEES
RELUCTANT IN THE FUTURE TO TAKE A POSITION ADVERSE TO THE UNION, AND
THEIR USEFULNESS TO THEIR EMPLOYER WOULD THEREBY BE IMPAIRED."  437
F.2D, AT 57. 

/12/  INDEED, IN ITS ORIGINAL PANEL DECISION IN THE INSTANT ILLINOIS
BELL CASE, THE COURT OF APPEALS SPOKE OF 8 (B) (1) (B) AS PROHIBITING
UNION DISCIPLINE CF SUPERVISORY EMPLOYEES "FOR ACTIONS PERFORMED BY
THEM WITHIN THE GENERAL SCOPE OF THEIR SUPERVISORY OR MANAGERIAL
RESPONSIBILITIES."  159 U. S. APP. D. C. 242, 248, 487 F.2D 1113,
1119. 

/13/  AS THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT REASONED IN
ENFORCING THE BOARD'S ORDER IN WISCONSIN ELECTRIC:  "WHAT A
SUPERVISOR'S PROPER FUNCTIONS ARE WHEN THE FULL COMPLEMENT OF EMPLOYEES
IS AT WORK UNDER THE REGIME OF A COLLECTIVE BARGAINING AGREEMENT THEN
IN FORCE IS NOT DETERMINATIVE OF SUPERVISORY RESPONSIBILITY DURING A
STRIKE.  OTHERWISE, WITH NO EMPLOYEES TO SUPERVISE, MANY SUPERVISORS
WOULD SIMPLY HAVE NO MANAGERIAL RESPONSIBILITIES DURING A STRIKE.  . .
. INSOFAR AS THE SUPERVISORS WORK TO GIVE THE EMPLOYER ADDED ECONOMIC
LEVERAGE, THEY ARE ACTING AS MEMBERS OF THE MANAGEMENT TEAM ARE
EXPECTED TO ACT WHEN THE EMPLOYER AND UNION ARE AT LOGGERHEADS IN THEIR
MOST FUNDAMENTAL DISPUTES."  486 F.2D 602, 608 (1973). 

/14/  SECTION 8 (B) (1) (B) WAS IN FACT A MORE RESTRAINED SOLUTION
TO THE PROBLEM OF MULTI-EMPLOYER BARGAINING THEN ORIGINALLY PROPOSED. 
PROPOSED 9 (F) (I) OF THE HOUSE BILL, H. R. 3020, WOULD HAVE PROHIBITED
MULTI-EMPLOYER BARGAINING ALTOGETHER, SEE H. R. REP. NO 245, 80TH
CONG., 1ST SESS. (HEREINAFTER HOUSE REPORT), 8 - 9, 56 (1947). 

/15/  IN A SIMILAR VEIN, SENATOR ELLENDER OBSERVED: 

"THE BILL PREVENTS A UNION FROM DICTATING TO AN EMPLOYER ON THE
QUESTION OF BARGAINING WITH UNION REPRESENTATIVES THROUGH AN EMPLOYER
ASSOCIATION.  THE BILL, IN SUBSECTION 8 (B) (1) ON PAGE 14, MAKES IT AN
UNFAIR LABOR PRACTICE FOR A UNION TO ATTEMPT TO COERCE AN EMPLOYER
EITHER IN THE SELECTION OF HIS BARGAINING REPRESENTATIVE OR IN THE
SELECTION OF A PERSONNEL DIRECTOR OR FOREMAN, OR OTHER SUPERVISORY
OFFICIAL.  SENATORS WHO HEARD ME DISCUSS THE ISSUE EARLY IN THE
AFTERNOON WILL RECALL THAT QUITE A FEW UNIONS FORCED EMPLOYERS TO
CHANGE FOREMEN.  THEY HAVE BEEN TAKING IT UPON THEMSELVES TO SAY THAT
MANAGEMENT SHOULD NOT APPOINT ANY REPRESENTATIVE WHO IS TOO STRICT WITH
THE MEMBERSHIP OF THE UNION.  THIS AMENDMENT SEEKS TO PRESCRIBE A
REMEDY IN ORDER TO PREVENT SUCH INTERFERENCES."  93 CONG. REC. 4143. 

/16/  TO HOLD THAT UNION DISCIPLINE OF SUPERVISOR-MEMBERS FOR
PERFORMING RANK-AND-FILE STRUCK WORK IS NOT PROSCRIBED BY 8 (B) (1) (B)
OF THE ACT IS NOT TO HOLD THAT SUCH DISCIPLINE IS EXPRESSLY PERMITTED
BY 8 (B) (1) (A) OF THE ACT, AS CONSTRUED IN NLRB V. ALLIS-CHALMERS
MFG. CO., 388 U. S. 175 (1967).  THE DECISION IN THAT CASE IS
INAPPOSITE WHERE THE UNION SEEKS TO FINE NOT EMPLOYEE-MEMBERS BUT
SUPERVISOR-MEMBERS, WHO ARE EXPLICITLY EXCLUDED FROM THE DEFINITION OF
"EMPLOYEE" BY 2 (3), 29 U.S.C. 152 (3), AND HENCE FROM THE COVERAGE OF
8 (B) (1) (A).  SEE BEASLEY V. FOOD FAIR OF NORTH CAROLINA, INC., 416
U. S. 653 (1974).  THE ACT, THEREFORE, NEITHER PROTECTS NOR PROHIBITS
UNION DISCIPLINE OF SUPERVISOR-MEMBERS FOR ENGAGING IN RANK-AND-FILE
STRUCK WORK.  IN LIGHT OF THE FACT THAT "CONGRESS HAS BEEN RATHER
SPECIFIC WHEN IT HAS COME TO OUTLAW PARTICULAR ECONOMIC WEAPONS ON THE
PART OF UNIONS," NLRB V. DRIVERS LOCAL UNION NO. 639, 362 U. S. 274,
282 - 283 (1960), THE ADMONITION AGAINST REGULATION OF THE CHOICE OF
ECONOMIC WEAPONS THAT MAY BE USED AS PART OF COLLECTIVE BARGAINING
ABSENT A PARTICULARIZED STATUTORY MANDATE IS PARTICULARLY APT IN THIS
CONTEXT.  NLRB V. INSURANCE AGENTS, 361 U. S. 477, 490 (1960).  SEE
SUMMERS, DISCIPLINARY POWERS OF UNIONS, 3IND.  & LAB.  REL. REV. 483
(1950); SUMMERS, LEGAL LIMITATIONS ON UNION DISCIPLINE, 64 HARV. L.
REV. 1049 (1951); WELLINGTON, UNION DEMOCRACY AND FAIR REPRESENTATION:
FEDERAL RESPONSIBILITY IN A FEDERAL SYSTEM, 67 YALE L. J. 1327 (1958);
COX, INTERNAL AFFAIRS OF LABOR UNIONS UNDER THE LABOR REFORM ACT OF
1959, 58 MICH. L. REV. 819 (1960). 

/17/  TITLE 29 U.S.C. 152 (3) PROVIDES IN PERTINENT PART: 

"THE TERM 'EMPLOYEE' SHALL INCLUDE ANY EMPLOYEE, . . . BUT SHALL NOT
INCLUDE . . . ANY INDIVIDUAL EMPLOYED AS A SUPERVISOR . . . ." 

TITLE 29 U.S.C. 152 (11) PROVIDES: 

"THE TERM 'SUPERVISOR' MEANS ANY INDIVIDUAL HAVING AUTHORITY, IN THE
INTEREST OF THE EMPLOYER, TO HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL,
PROMOTE, DISCHARGE, ASSIGN, REWARD, OR DISCIPLINE OTHER EMPLOYEES, OR
RESPONSIBLY TO DIRECT THEM, OR TO ADJUST THEIR GRIEVANCES, OR
EFFECTIVELY TO RECOMMEND SUCH ACTION, IF IN CONNECTION WITH THE
FOREGOING THE EXERCISE OF SUCH AUTHORITY IS NOT OF A MERELY ROUTINE OR
CLERICAL NATURE, BUT REQUIRES THE USE OF INDEPENDENT JUDGMENT." 

/18/  IT HAS BEEN HELD THAT THIS RIGHT IS LIMITED TO THE EXTENT THAT
AN EMPLOYER CANNOT DISCHARGE SUPERVISORY PERSONNEL FOR PARTICIPATION IN
THE UNION WHERE THE DISCHARGE IS FOUND TO INTERFERE WITH, RESTRAIN, OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR PROTECTED RIGHTS, SEE NLRB V.
TALLADEGA COTTON FACTORY, INC., 213 F.2D 209 (CA5 1954), OR WHERE IT IS
PROMPTED BY THE SUPERVISORS' REFUSAL TO ENGAGE IN UNLAWFUL ACTIVITY,
SEE NLRB V. LOWE, 406 F.2D 1033 (CA6 1969). 

/19/  PRIOR TO THE PASSAGE OF THE NATIONAL LABOR RELATIONS ACT IN
1935, FOREMEN AND RANK-AND-FILE WORKERS WERE OFTEN MEMBERS OF THE SAME
BARGAINING UNIT, AND SUCH CONFLICT-OF-INTEREST PROBLEMS AS AROSE WERE
DEALT WITH THROUGH THE COLLECTIVE-BARGAINING PROCESS.  AFTER FIRST
HOLDING THAT SUPERVISORS COULD ORGANIZE IN INDEPENDENT OR AFFILIATED
UNIONS IN UNION COLLIERIES COAL CO., 41 N. L. R. B. 961 (1942) AND
GODCHAUX SUGARS, INC., 44 N. L. R. B. 733 (1943), AND HELD THAT EXCEPT
WHERE FOREMEN HAD BEEN ORGANIZED IN 1935 WHEN THE ACT WAS PASSED,
SUPERVISORY UNITS WERE NOT APPROPRIATE COLLECTIVE-BARGAINING UNITS
UNDER THE WAGNER ACT.  THE BOARD THEN REVERSED ITS POSITION AGAIN IN
PACKARD MOTOR CAR CO., 61 N. L. R. B. 4, ENFORCED, 157 F.2D 80 (CA6),
AFF'D, 330 U. S. 485 (1947), HOLDING THAT SUPERVISORY EMPLOYEES AS A
CLASS WERE ENTITLED TO THE RIGHTS OF SELF-ORGANIZATION AND COLLECTIVE
BARGAINING.  SEE NLRB V. BEEL AEROSPACE CO., 416 U. S. 267, 277 (1974);
BEASLEY V. FOOD FAIR OF NORTH CAROLINA, INC., 416 U. S., AT 658 N. 4. 
SEE ALOS HOUSE REPORT 13 - 14.  IN DISCUSSING THE PROPOSED LEGISLATION
DEALING WITH SUPERVISORY PERSONNEL, THE SENATE REPORT STATED:  "IT
SHOULD BE NOTED THAT ALL THAT THE BILL DOES IS TO LEAVE FOREMEN IN THE
SAME POSITION IN WHICH THEY WERE UNTIL THE LABOR BOARD REVERSED THE
POSITION IT HAD ORIGINALLY TAKEN IN 1943 IN THE MARYLAND DRYDOCK CASE
(49 N. L. R. B. 733).  IN OTHER WORDS, THE BILL DOES NOT PREVENT ANYONE
FROM ORGANIZING NOR DOES IT PROHIBIT ANY EMPLOYER FROM RECOGNIZING A
UNION OF FOREMEN.  IT MERLY RELIEVES EMPLOYERS WHO ARE SUBJECT TO THE
NATIONAL ACT FREE FROM ANY COMPULSION BY THIS NATIONAL BOARD OR ANY
LOCAL AGENCY TO ACCORD TO THE FRONT LINE OF MANAGEMENT THE ANOMALOUS
STATUS OF EMPLOYEES."  SENATE REPORT 5. 

/20/  INSTRUCTIVE AS WELL IS THE FACT THAT 2 (3) AND 14 (A) WERE BOTH
SLIGHTLY MODIFIED VERSIONS OF 9 (A) AND (C) OF THE CASE BILL, H. R.
4908, 79TH CONG., 2D SESS. (1946), WHICH WAS PASSED BY CONGRESS IN 1946
BUT VETOED BY PRESIDENT TRUMAN.  SEE SENATE REPORT 5.  THAT EARLIER
BILL, HOWEVER, CONTAINED NO PROVISION BEARING ANY RESEMBLANCE TO 8 (B)
(1) (B), WHICH FIRST APPEARED IN S. 1126, 80TH CONG., 1ST SESS.
(1947). 

/21/  FURTHER SUPPORT FOR THE PROPOSITION THAT 8 (B) (1) (B) WAS
ADDRESSED TO A SEPARATE AND FAR MORE LIMITED PROBLEM THAN THAT OF
CONFLICT OF LOYALTIES DEALT WITH IN 2 (3), 2 (11), AND 14 (A) IS FOUND
IN THE DIFFERING SCOPE OF THE PROVISIONS THEMSELVES.  SECTION 8 (B) (1)
(B) PURPORTS TO COVER ONLY THOSE SELECTED AS THE EMPLOYER'S
REPRESENTATIVE "FOR THE PURPOSES OF COLLECTIVE BARGAINING OR THE
ADJUSTMENT OF GRIEVANCES," WHEREAS THE CLASS OF SUPERVISORS EXCLUDED
FROM THE DEFINITION OF EMPLOYEES IN 2 (3) IS DEFINED BY 2 (11) TO
INCLUDE INDIVIDUALS ENGAGED IN A SUBSTANTIALLY BROADER RANGE OF
ACTIVITES.  SEE SUPRA, N. 17; NLRB V. BELL AEROSPACE CO., SUPRA.  THE
TWO GROUPS CONINCIDE ONLY WITH RESPECT TO THE FUNCTION OF GRIEVANCE
ADJUSTMENT.     /22/  THERE CAN BE NO DENYING THAT THE SUPERVISORS
INVOLVED IN THE PRESENT CASES FOUND THEM SELVES IN SOMTHING OF A
DILEMMA, AND WERE PULLED BY CONFLICTING LOYALTIES.  BUT INHERENT IN THE
OPTION AFFORDED THE EMPLOYER BY CONGRESS, MUST BE THE RECOGNITION THAT
SUPERVISORS PERMITTED BY THEIR EMPLOYERS TO MAINTAIN UNION MEMBERSHIP
WILL NECESSARILY INCUR OBLIGATIONS TO THE UNION.  SEE NASSAU & SUFFOLK
CONTRACTORS' ASSN., INC., 118 N. L. R. B. 174, 182 (1957).  SEE
SUMMERS, LEGAL LIMITATIONS ON UNION DISCIPLINE, 64 HARV. L. REV. 1049
(1951).  AND, WHILE BOTH THE EMPLOYER AND THE UNION MAY HAVE
CONFLICTING BUT NONETHELESS LEGITIMATE EXPECTATIONS OF LOYAOLTY FROM
SUPERVISOR-MEMBERS DURING A STRIKE, THE FACT THAT THE SUPERVISOR WILL
IN SOME MEASURE BE THE BENEFICIARY OF ANY ADVANTAGES SECURED BY THE
UNION THROUGH THE STRIKE MAKES IT INHERENTLY INEQUITABLE THAT HE BE
ALLOWED TO FUNCTION AS A STRIKEBREAKER WITHOUT INCURRING UNION
SANCTIONS. 

THE SUPERVISOR-MEMBER IS, OF COURSE, NOT BOUND TO RETAIN HIS UNION
MEMBERSHIP ABSENT A UNION SECURITY CLAUSE, AND IF FOR WHATEVER REASON,
HE CHOOSES TO RESIGN FROM THE UNION, THEREBY RELINQUISHING HIS UNION
BENEFITS, HE COULD NO LONGER BE DISCIPLINED BY THE UNION FOR WORKING
DURING A STRIKE.  NLRB V. TEXTILE WORKERS, 409 U. S. 213 (1972);
BOOSTER LODGE 405 V. NLRB, 412 U. S. 84 (1973). 

IN THESE CASES, THE SUPERVISORS' DILEMMA HAS BEEN SOMEWHAT
EXAGGERATED BY THE PETITIONERS.  IN ILLINOIS BELL, THE COMPANY DID NOT
COMMAND ITS SUPERVISORS TO WORK DURING THE STRIKE AND EXPRESSLY LEFT
THE DECISION TO EACH INDIVIDUAL.  THOSE WHO CHOSE NOT TO WORK WERE NOT
PENALIZED, AND SOME WERE IN FACT PROMOTED BY THEIR EMPLOYER AFTER THE
STRIKE HAD ENDED.  THOSE WHO DID WORK DURING THE STRIKE BUT PERFORMED
ONLY THEIR REGULAR DUTIES WERE NOT DISCIPLINED BY THE UNION.  IN
FLORIDA POWER, THE RECORD DOES NOT DISCLOSE WHETHER THE SUPERVISORS
CROSSED THE PICKET LINES AT THE COMPANY'S REQUEST OR NOT, BUT IN ANY
EVENT, THE UNION DID NOT DISCIPLINE THOSE WHO DID SO ONLY TO PERFORM
THEIR NORMAL SUPERVISORY FUNCTIONS. 

/23/  THUS, WHILE A UNION VIOLATES 8 (B) (1) (B) BY STRIKING TO
FORCE AN ENPLOYER TO AGREE TO HIRE ONLY UNION MEMBERS AS FOREMEN,
INTERNATIONAL TYPOGTAPHICAL UNION LOCAL 38 V. NLRB, 278 F.2D 6 (CA1
1960), AFF'D BY AN EQUALLY DIVIDED COURT, 365 U. S. 705 (1961), SEE N.
7, SUPRA, IT CAN PROPOSE THAT SUPERVISORS BE COVERED BY THE COLLECTIVE
BARGAINING AGREEMENT, SAKRETE OF NORTHERN CALIFORNIA, INC. V. NLRB, 332
F.2D 902 (CA9 1964), CERT. DENIED, 379 U. S. 961 (1965).  SIMILARLY, IT
IS CLEAR THAT AN EMPLOYER MAY REQUEST THAT SUPERVISORS BE EXCLUDED FROM
THE BARGAINING UNIT, FEDERAL COMPRESS & WAREHOUSE CO. V. NLRB, 398 F.2D
631 (CA6 1968); NLRB V. CORRAL SPORTSWEAR CO., 383 F.2D 961 (CA10
1967). 

THE PARTIES IN FLORIDA POWER IN FACT AGREED TO THE INCLUSION IN THE
COLLECTIVE-BARGAINING AGREEMENT OF PROVISIONS GOVERNING THE
DISCIPLINING BY THE UNION OF SUPERVISORY PERSONNEL, BASICALLY PROVIDING
THAT SUCH MATTERS WERE TO BE DEALT WITH THROUGH THE GRIEVANCE
ADJUSTMENT AND ARBITRATION PROVISIONS OF THE AGREEMENT.  SEE SUPRA, AT
796. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

BELIEVING THAT THE MAJORITY HAS IMPROPERLY SUBSTITUTED ITS JUDGMENT
FOR A FAIR AND REASONABLE INTERPRETATION BY THE BOARD OF 8 (B) (1) (B)
IN LIGHT OF THE STATUTORY LANGUAGE AND LEGISLATIVE HISTORY OF THAT
PROVISION AND OTHER PROVISIONS DEALING WITH SUPERVISORS, I MUST DISSENT
SUBSTANTIALLY FOR THE REASONS EXPRESSED BY THE DISSENT BELOW. 

WHILE IT MIGHT BE UNREASONABLE FOR THE BOARD TO INTERPRET 8
(B)(1)(B) TO PERMIT AN EMPLOYER TO REQUIRE ABSOLUTE LOYALTY FROM A
SUPERVISOR-MEMBER IN ALL CIRCUMSTANCES, IT IS CERTAINLY APPARENT THAT
DURING AN ECONOMIC STRIKE, THE SUPERVISOR'S PERFORMANCE OF RANK-AND
FILE STRUCK WORK, WHICH REPRESENTS A CLASSIC "USE OF ECONOMIC PRESSURE
BY THE PARTIES TO A LABOR DISPUTE . . . (,) IS PART AND PARCEL OF THE
PROCESS OF COLLECTIVE BARGAINING."  NLRB V. INSURANCE AGENTS'
INTERNATIONAL UNION, 361 U. S. 477, 495 (1960).  /1/  "AS MANAGEMENT
REPRESENTATIVES, SUPERVISORY PERSONNEL MAY BE REQUESTED BY MANAGEMENT
TO ENHANCE THE BARGAINING POSITION OF THEIR EMPLOYER DURING A DISPUTE
BETWEEN IT AND THE PARTICULAR UNION INVOLVED."  159 U. S. APP. D. C.
272, 304, 487 F.2D 1143, 1175 (1973) (ENBANC) (DISSENTING OPINION). 
MOREOVER, THESE UNION SANCTIONS WOULD UNAVOIDABLY DECREASE A
SUPERVISOR'S LOYALTY TO HIS EMPLOYER AND THEREBY MATERIALLY INTERFERE
WITH THE PERFORMANCE OF THOSE RESPONSIBILITIES WHICH THE EMPLOYER QUITE
PROPERLY DEMANDS OF HIM.  LOCAL UNION NO. 2150, IBEW (WISCONSIN
ELECTRIC POWER CO.), 192 N. L. R. B. 77, 78 (1971), ENFORCED, 486 F.2D
602 (CA7 1973).  NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF THE
STATUTE CONTRADICTS THE CONCLUSION THAT 

"(WHEN A UNION DISCIPLINES A SUPERVISOR FOR CROSSING A PICKET LINE
TO PERFORM RANK-AND-FILE WORK AT THE REQUEST OF HIS EMPLOYER, THAT
DISCIPLINE EQUALLY INTERFERES WITH THE EMPLOYER'S CONTROL OVER HIS
REPRESENTATIVE AND EQUALLY DEPRIVES HIM OF THE UNDIVIDED LOYALTY OF
THAT SUPERVISOR AS IN THE CASE WHERE THE DISCIPLINE WAS IMPOSED BECAUSE
OF THE WAY THE SUPERVISOR INTERPRETED THE COLLECTIVE BARGAINING
AGREEMENT OR PERFORMED HIS 'NORMAL' SUPERVISORY DUTIES."  159 U. S.
APP. D. C., AT 305, 487 F.2D, AT 1176 (DISSENTING OPINION).  /2/ 

IN A STEADY PROGRESSION OF DECISIONS LEADING UP TO THE INSTANT
CASES, THE BOARD CONCLUDED THAT 8 (B) (1) (B) INTERDICTED NOT ONLY
DIRECT UNION PRESSURE ON AN EMPLOYER TO REPLACE A SUPERVISOR WITH
COLLECTIVE-BARGAINING OR GRIEVANCE-ADJUSTMENT FUNCTIONS, BUT ALSO
INDIRECT COERCION OF AN EMPLOYER BY MEANS OF ATTEMPTING, THROUGH THE
APPLICATION OF UNION DISCIPLINE APPARATUS AGAINST SUPERVISOR-MEMBERS,
TO DICTATE THE MANNER IN WHICH THEY WOULD EXERCISE THEIR SUPERVISORY
RESPONSIBILITIES.  FAR FROM SEEING THE PRESENT CASES AS A RADICAL
EXTENSION OF THIS PRINCIPLE, I VIEW THE BOARD'S DECISIONS AS A REASONED
AND REALISTIC APPLICATION OF 8 (B) (1) (B).  FOR MY PART, THE BOARD'S
FINDINGS ARE BASED UPON SUBSTANTIAL RECORD EVIDENCE AND ENJOY "A
REASONABLE BASIS IN LAW."  NLRB V. HEARST PUBLICATIONS INC., 322 U. S.
111, 131 (1944).  IT MAY BE TRUE THAT SPECIAL CONCERNS PROMPTED 8 (B)
(1) (B), BUT THE PROVISION, AS IS OFTEN THE CASE, WAS WRITTEN MORE
BROADLY.  NOR DO I SEE ANYTHING IN THE LEGISLATIVE HISTORY FORECLOSING
THE BOARD FROM APPLYING THE SECTION TO PREVENT UNIONS FROM IMPOSING
SANCTIONS ON SUPERVISORS IN THE CIRCUMSTANCES PRESENT HERE.  THIS COURT
IS NOT A SUPER-BOARD AUTHORIZED TO OVERRULE AN AGENCY'S CHOICE BETWEEN
REASONABLE CONSTRUCTIONS OF THE CONTROLLING STATUTE.  WE SHOULD NOT
IMPOSE OUR VIEWS ON THE BOARD AS LONG AS IT STAYS WITHIN THE OUTER
BOUNDARIES OF THE STATUTE IT IS CHARGED WITH ADMINISTERING. 
RESPECTFULLY, I DISSENT. 

/1/  THE COURT BELOW ACKNOWLEDGED THE PRACTICAL REALITIES OF THE USE
OF SUPERVISORS DURING A STRIKE: "IN THE HIGHLY AUTOMATED PUBLIC UTILITY
INDUSTRIES INVOLVED IN THESE CASES A SMALL WORK FORCE COMPOSED OF
STRIKEBREAKERS AND NON-UNION MANAGEMENT PERSONNEL CAN EVIDENTLY PROVIDE
SUFFICIENT MAN POWER TO CONTINUE VITAL SERVICES IN A STRIKE, THEREBY
CUTTING INTO THE STRIKE'S EFFECTIVENESS."  159 U. S. APP. D. C. 272,
290 N. 21, 487 F.2D 1143, 1161 N. 21 (1973) (EN BANC). 

/2/  I DO NOT READ THE COURT TO SAY THAT 8 (B) (1) (B) WOULD ALLOW A
UNION TO DISCIPLINE SUPERVISOR-MEMBERS FOR PERFORMING SUPERVISORY OR
MANAGEMENT FUNCTIONS, AS OPPOSED TO CUSTOMARY RANK-AND-FILE WORK,
DURING A LABOR DISPUTE. 

RAY C. MULLER ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER IN
NO. 73 - 556.  NORTON J. COME ARGUED THE CAUSE FOR PETITIONER IN NO. 73
- 795 AND FOR RESPONDENT NATIONAL LABOR RELATIONS BOARD IN NO. 73 -
556.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, PETER G. NASH,
JOHN S. IRVING, AND PATRICK HARDIN. 

LAURENCE J. COHEN ARGUED THE CAUSE FOR RESPONDENT UNIONS IN BOTH
CASES.  WITH HIM ON THE BRIEF WERE ROBERT E. FITZGERALD AND SEYMOUR A.
GOPMAN. 

LAURENCE GOLD ARGUED THE CAUSE FOR THE AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS AMICUS CURIAE URGING
AFFIRMANCE.  WITH HIM ON THE BRIEF WERE J. ALBERT WOLL AND THOMAS E.
HARRIS. 
..END :


















PELL V. PROCUNIER, 417 U. S. 817 


PELL ET AL. V. PROCUNIER, CORRECTIONS

           DIRECTOR, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

      NO. 73 - 918.  ARGUED APRIL 16 - 17, 1974--DECIDED JUNE 24, 

     1974:* 

*TOGETHER WITH NO. 73-754, PROCUNIER, CORRECTIONS DIRECTOR V.
HILLERY ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


    FOUR CALIFORNIA PRISON INMATES AND THREE PROFESSIONAL

  JOURNALISTS BROUGHT THIS SUIT IN THE DISTRICT COURT CHALLENGING

  THE CONSTITUTIONALITY OF A REGULATION, 415.071, OF THE CALIFORNIA

  DEPARTMENT OF CORRECTIONS MANUAL, WHICH PROVIDES THAT "(PRESS AND

  OTHER MEDIA INTERVIEWS WITH SPECIFIC INDIVIDUAL INMATES WILL NOT

  BE PERMITTED."  THAT PROVISION WAS PROMULGATED FOLLOWING A

  VIOLENT PRISON EPISOLDE THAT THE CORRECTION AUTHORITIES

  ATTRIBUTED AT LEAST IN PART TO THE FORMER POLICY OF FREE

  FACE-TO-FACE PRISONER-PRESS INTERVIEWS, WHICH HAD RESULTED IN A

  RELATIVELY SMALL NUMBER OF INMATES GAINING DISPROPORTIONATE

  NOTORIETY AND INFLUENCE AMONG THEIR FELLOW INMATES.  THE DISTRICT

  COURT GRANTED THE INMATE APPELLEES' MOTION FOR SUMMARY JUDGMENT,

  HOLDING THAT 415.071, INSOFAR AS IT PROHIBITED INMATES FORM

  HAVING FACE-TO-FACE COMMUNICATION WITH JOURNALISTS

  UNCONSTITUTIONALLY INFRINGED THE INMATES'  FIRST AND FOURTEENTH

  AMENDMENT FREEDOMS.  THE COURT GRANTED A MOTION TO DISMISS WITH

  RESPECT TO THE CLAIMS OF THE MEDIA APPELLANTS, HOLDING THAT THEIR

  RIGHTS WERE NOT INFRINGED, IN VIEW OF THEIR OTHERWISE AVAILABLE

  RIGHTS TO ENTER STATE INSTITUTIONS AND INTERVIEW INMATES AT

  RANDOM AND THE EVEN BROADER ACCESS AFFORDED PRISONERS BY THE

  COURT'S RULING WITH RESPECT TO THE INMATE APPELLEES.  THE PRISON

 OFFICIALS (IN NO. 73 - 754) AND THE JOURNALISTS (IN NO. 73 - 918)

  HAVE APPEALED.  HELD: 

     1.  IN LIGHT OF THE ALTERNATIVE CHANNELS OF COMMUNICATION THAT

  ARE OPEN TO THE INMATE APPELLEES, 415.071 DOES NOT CONSTITUTE A

  VIOLATION OF THEIR RIGHTS OF FREE SPEECH.  PP. 821 - 828. 

  (A) A PRISON INMATE RETAINS THOSE FIRST AMENDMENT RIGHTS THAT

  ARE NOT INCONSISTENT WITH HIS STATUS AS PRISONER OR WITH THE

  LEGITIMATE PENOLOGICAL OBJECTIVES OF THE CORRECTIONS SYSTEM, AND

  HERE THE RESTRICTIONS ON INMATES' FREE SPEECH RIGHTS MUST BE

  BALANCED AGAINST THE STATE'S LEGITIMATE INTEREST IN CONFINING

  PRISONERS TO DETER CRIME, TO PROTECT SOCIETY BY QUARANTINING

  CRIMINAL OFFENDERS FOR A PERIOD DURING WHICH REHABILITATIVE

  PROCEDURES CAN BE APPLIED, AND TO MAINTAIN THE INTERNAL SECURITY

  OF PENAL INSTITUTIONS.  PP. 822 - 824. 

     (B) ALTERNATIVE MEANS OF COMMUNICATION REMAIN OPEN TO THE

  INMATES; THEY CAN CORRESPOND BY MAIL WITH PERSONS (INCLUDING

  MEDIA REPRESENTATIVES), PROCUNIER V. MARTINEZ, 416 U. S. 396;

  THEY HAVE RIGHTS OF VISITATION WITH FAMILY, CLERGY, ATTORNEYS,

  AND FRIENDS OF PRIOR ACQUAINTANCE; AND THEY HAVE UNRESTRICTED

 OPPORTUNITY TO COMMUNICATE WITH THE PRESS OR PUBLIC THROUGH THEIR

  PRISON VISITORS.  PP. 824 - 828. 

     2.  THE RIGHTS OF THE MEDIA APPELLANTS UNDER THE FIRST AND

  FOURTEENTH AMENDMENTS ARE NOT INFRINGED BY 415.071, WHICH DOES

  NOT DENY THE PRESS ACCESS TO INFORMATION AVAILABLE TO THE GENERAL

  PUBLIC.  NEWSMEN, UNDER CALIFORNIA POLICY, ARE FREE TO VISIT BOTH

  MAXIMUM SECURITY AND MINIMUM SECURITY SECTIONS OF CALIFORNIA

  PENAL INSTITUTIONS AND TO SPEAK WITH INMATES WHOM THEY MAY

  ENCOUNTER, AND (UNLIKE MEMBERS OF THE GENERAL PUBLIC) ARE ALSO

  FREE TO INTERVIEW INMATES SELECTED AT RANDOM "THE FIRST AMENDMENT

  DOES NOT GUARANTEE THE PRESS A CONSTITUTIONAL RIGHT OF SPECIAL

  ACCESS TO INFORMATION NOT AVAILABLE TO THE PUBLIC GENERALLY." 

BRANZBURY V. HAYES, 408 U. S. 665, 684.  PP. 829 - 835. 

  STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED

  AND IN PART I OF WHICH POWELL, J., JOINED.  POWELL, J., FILED AN

  OPINION CONCURRING IN PART AND DISSENTING IN PART, POST, P. 835. 

  DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND

  MARSHALL, JJ., JOINED, POST, P. 836. 

MR. JUSTIFE STEWART DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARE HERE ON CROSS-APPEALS FROM THE JUDGMENT OF A THREE
JUDGE DISTRICT COURT IN THE NORTHERN DISTRICT OF CALIFORNIA.  THE
PLAINTIFFS IN THE DISTRICT COURT WERE FOUR CALIFORNIA PRISON INMATES-
BOOKER T. HILLERY, JR., JOHN LARRY SPAIN, BOBBY BLY, AND MICHAEL SHANE
GUILE--AND THREE PROFESSIONAL JOURNALISTS--EVE PELL, BETTY SEGAL, AND
PAUL JACOBS.  THE DEFENDANTS WERE RAYMOND K. PROCUNIER, DIRECTOR OF THE
CALIFORNIA DEPARTMENT OF CORRECTIONS, AND SEVERAL SUBORDINATE OFFICERS
IN THAT DEPARTMENT.  THE PLAINTIFFS BROUGHT THE SUIT TO CHALLENGE THE
CONSTITUTIONALITY, UNDER THE FIRST AND FOURTEENTH AMENDMENTS, OF
415.071 OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS MANUAL, WHICH
PROVIDES THAT "(PRESS AND OTHER MEDIAL INTERVIEWS WITH SPECIFIC
INDIVIDUAL INMATES WILL NOT BE PERMITTED."  THEY SOUGHT BOTH INJUNCTIVE
AND DECLARATORY RELIEF UNDER 42 U.S.C. 1983.  SECTION 415.071 WAS
PROMULGATED BY DEFENDANT PROCUNIER UNDER AUTHORITY VESTED IN HIM BY
5058 OF THE CALIFORNIA PENAL CODE AND IS APPLIED UNIFORMLY THROUGHOUT
THE STATE'S PENAL SYSTEM TO PROHIBIT FACE/-TO-FACE INTERVIEWS BETWEEN
PRESS REPRESENTATIVES AND INDIVIDUAL INMATES WHOM THEY SPECIFICALLY
NAME AND REQUEST TO INTERVIEW.  IN ACCORDANCE WITH 28 U.S.C. 2281 AND
2284, A THREE-JUDGE COURT WAS CONVENED TO HEAR THE CASE.  /1/ 

THE FACTS ARE UNDISPUTED PELL, SEGAL, AND JACOBS EACH REQUESTED
PERMISSION FROM THE APPROPRIATE CORRECTIONS OFFICIALS TO INTERVIEW
INMATES SPAIN, BLY, AND GUILE, RESPECTIVELY.  IN ADDITION, THE EDITORS
OF A CERTAIN PERIODICAL REQUESTED PERMISSION TO VISIT INMATE HILLERY TO
DISCUSS THE POSSIBILITY OF THEIR PUBLISHING CERTAIN OF HIS WRITINGS AND
TO INTERVIEW HIM CONCERNING CONDITIONS AT THE PRISON.  /2/  PRUSUANT TO
415.071, THESE REQUESTS WERE ALL DENIED.  /3/  THE PLAINTIFFS THEREUPON
SUED TO ENJOIN THE CONTINUED ENFORCEMENT OF THIS REGULATION.  THE
INMATE PLAINTIFFS CONTENDED THAT 415.071 VIOLATES THEIR RIGHTS OF FREE
SPEECH UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  SIMILARLY, THE
MEDIAL PLAINTIFFS ASSERTED THAT THE LIMITATION THAT THIS REGULATION
PLACES ON THEIR NEWS-GATHERING ACTIVITY UNCONSTITUTIONALLY INFRINGES
THE FREEDOM OF THE PRESS GUARANTEED BY THE FIRST AND FOURTEENTH
AMENDMENTS. 

THE DISTRICT COURT GRANTED THE INMATE PLAINTIFFS' NOTION FOR SUMMARY
JUDGMENT, HOLDING THAT 415.071, INSOFAR AS IT PROHIBITED INMATES FROM
HAVING FACE-TO-FACE COMMUNICATION WITH JOURNALISTS, UNCONSTITUTIONALLY
INFRINGED THEIR FIRST AND FOURTEENTH AMENDMENT FREEDOMS WITH RESPECT TO
THE CLAIMS OF THE MEDIAL PLAINTIFFS, THE COURT GRANTED THE DEFENDANTS'
MOTION TO DISMISS.  THE COURT NOTED THAT "(EVEN UNDER 415.071 AS IT
STOOD BEFORE TO DAY'S RULING (THAT INMATES' CONSTITUTIONAL RIGHTS WERE
VIOLATED BY 415.071) THE PRESS WAS GIVEN THE FREEDOM TO ENTER THE
CALIFORNIA INSTITUTIONS AND INTERVIEW AT RANDOM," AND CONCLUDED "THAT
THE EVEN BROADER ACCESS AFFORDED PRISONERS BY TODAY'S RULING
SUFFICIENTLY PROTECTS WHATEVER RIGHTS THE PRESS MAY HAVE WITH RESPECT
TO INTERVIEWS WITH INMATES."  364 F. SUPP. 196, 200. 

IN NO. 73 - 754, CORRECTIONS DIRECTOR PROCUNIER AND THE OTHER
DEFENDANTS APPEAL FROM THE JUDGMENT OF THE DISTRICT COURT THAT 415.071
INFRINGES THE INMATE PLAINTIFFS' FIRST AND FOURTEENTH AMENDMENT
RIGHTS.  IN NO. 73 - 918, THE MEDIA PLAINTIFFS APPEAL THE COURT'S
REJECTION OF THEIR CLAIMS.  WE NOTED PROBABLE JURISDICTION OF BOTH
APPEALS AND CONSOLIDATED THE CASES FOR ORAL ARGUMENT.  414 U. S. 1127,
1155. 

        I 

IN NO. 73 - 754, THE INMATE PLAINTIFFS CLAIM THAT 415.071, BY
PROHIBITING THEIR PARTICIPATION IN FACE-TO-FACE COMMUNICATION WITH
NEWSMEN AND OTHER MEMBERS OF THE GENERAL PUBLIC, VIOLATES THEIR RIGHT
OF FREE SPEECH UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  ALTHOUGH THE
CONSTITUTIONAL RIGHT OF FREE SPEECH HAS NEVER BEEN THOUGHT TO EMBRACE A
RIGHT TO REQUIRE A JOURNALIST OR ANY OTHER CITIZEN TO LISTEN TO A
PERSON'S VIEWS, LET ALONE A RIGHT TO REQUIRE A PUBLISHER TO PUBLISH
THOSE VIEWS IN HIS NEWSPAPER, SEE AVINS V. RUTGERS, STATE UNIVERSITY OF
NEW JERSEY, 385 F.2D 151 (CA3 1967); CHICAGO JOINT BOARD, CLOTHING
WORKERS V. CHICAGO TRIBUNE CO., 435 F. 2D 470 (CA7 1970); ASSOCIATES &
ALDRICH CO. V. TIMES MIRROR CO., 440 F. 2D 133 (CA9 1971), WE PROCEED
UPON THE HYPOTHESIS THAT UNDER SOME CIRCUMSTANCES THE RIGHT OF FREE
SPEECH INCLUDES A RIGHT TO COMMUNICATE A PERSON'S VIEWS TO ANY WILLING
LISTENER, INCLUDING A WILLING REPRESENTATIVE OF THE PRESS FOR THE
PURPOSE OF PUBLICATION BY A WILLING PUBLISHER. 

WE START WITH THE FAMILIAR PROPOSITION THAT "(LAWFUL INCARCERATION
BRINGS ABOUT THE NECESSARY WITHDRAWAL OR LIMITATION OF MANY PRIVILEGES
AND RIGHTS, A RETRACTION JUSTIFIED BY THE CONSIDERATIONS UNDERLYING OUR
PENAL SYSTEM."  PRICE V. JOHNSTON, 334 U.S. 266, 285 (1948).  SEE ALSO
CRUZ V. BETO, 405 U. S. 319, 321 (1972).  IN THE FIRST AMENDMENT
CONTEXT A COROLLARY OF THIS PRINCIPLE IS THAT A PRISON INMATE RETAINS
THOSE FIRST AMENDMENT RIGHTS THAT ARE NOT INCONSISTENT WITH HIS STATUS
AS A PRISONER OR WITH THE LEGISTIMATE PENOLOGICAL OBJECTIVES OF THE
CORRECTIONS SYSTEM.  THUS, CHALLENGES TO PRISON RESTRICTIONS THAT ARE
ASSERTED TO INHIBIT FIRST AMENDMENT INTERESTS MUST BE ANALYZED IN TERMS
OF THE LEGITIMATE POLICIES AND GOALS OF THE CORRECTIONS SYSTEM, TO
WHOSE CUSTODY AND CARE THE PRISONER HAS BEEN COMMITTED IN ACCORDANCE
WITH DUE PROCESS OF LAW. 

AN IMPORTANT FUNCTION OF THE CORRECTIONS SYSTEM IS THE DETERRENCE OF
CRIME.  THE PREMISE IS THAT BY CONFINING CRIMINAL OFFENDERS IN A
FACILITY WHERE THEY ARE ISOLATED FROM THE REST OF SOCIETY, A CONDITION
THAT MOST PEOPLE PRESUMABLY FIND UNDESIRABLE, THEY AND OTHERS WILL BE
DETERRED FROM COMMITTING ADDITIONAL CRIMINAL OFFENSES.  THIS ISOLATION,
OF COURSE, ALSO SERVES A PROTECTIVE FUNCTION BY QUARANTINING CRIMINAL
OFFENDERS FOR A GIVEN PERIOD OF TIME WHILE, IT IS HOPED, THE
REHABILITATIVE PROCESSES OF THE CORRECTIONS SYSTEM WORK TO CORRECT THE
OFFENDER'S DEMONSTRATED CRIMINAL PROCLIVITY.  THUS, SINCE MOST
OFFENDERS WILL EVENTUALLY RETURN TO SOCIETY, ANOTHER PARAMOUNT
OBJECTIVE OF THE CORRECTION SYSTEM IS THE REHABILITATION OF THOSE
COMMITTED TO ITS CUSTODY.  FINALLY, CENTRAL TO ALL OTHER CORRECTIONS
GOALS IS THE INSTITUTIONAL CONSIDERATION OF INTERNAL SECURITY WITHIN
THE CORRECTIONS FACILITIES THEMSELVES.  IT IS IN THE LIGHT OF THESE
LEGITIMATE PENAL OBJECTIVES THAT A COURT MUST ASSESS CHALLENGES TO
PRISON REGULATIONS BASED ON ASSERTED CONSTITUTIONAL RIGHTS OF
PRISONERS. 

THE REGULATION CHALLENGED HERE CLEARLY RESTRICTS ONE MANNER OF
COMMUNICATION BETWEEN PRISON INMATES AND MEMBERS OF THE GENERAL PUBLIC
BEYOND THE PRISON WALLS.  BUT THIS IS MERELY TO STATE THE PROBLEM, NOT
TO RESOLVE IT.  FOR THE SAME COULD BE SAID OF A REFUSAL BY CORRECTIONS
AUTHORITIES TO PERMIT AN INMATE TEMPORATILY TO LEAVE THE PRISON IN
ORDER TO COMMUNICATE WITH PERSONS OUTSIDE.  YET NO ONE COULD SENSIBLY
CONTEND THAT THE CONSTITUTION REQURES THE AUTHORITIES TO GIVE EVEN
INDIVIDUALIZED CONSIDERATION TO SUCH REQUESTS.  CF. ZEMEL V. RUSK, 381
U. S. 1, 16 - 17 (1965).  IN ORDER PROPERLY TO EVALUATE THE
CONSTITUTIONALITY OF 415.071, WE THINK THAT THE REGULATION CANNOT BE
CONSIDERED IN ISOLATION BUT MUST BE VIEWED IN THE LIGHT OF THE
ALTERNATIVE MEANS OF COMMUNICATION PERMITTED UNDER THE REGULATIONS WITH
PERSONS OUTSIDE THE PRISON.  WE RECOGNIZE THAT THERE "MAY BE PARTICULAR
QUALITIES INHERENT IN SUSTAINED, FACE-TO-FACE DEBATE, DISCUSSION AND
QUESTIONING," AND "THAT (THE) EXISTENCE OF OTHER ALTERNATIVES (DOES
NOT) EXTINGUISH) ALTOGETHER ANY CONSTITUTIONAL INTEREST ON THE PART OF
THE APPELLEES IN THIS PARTICULAR FORM OF ACCESS."  KLEINDIENST V.
MANDEL, 408 U. S. 753, 765 (1972).  BUT WE REGARD THE AVAILABLE
"ALTERNATIVE MEANS OF (COMMUNICATION AS) A RELEVANT FACTOR" IN A CASE
SUCH AS THIS WHERE "WE (ARE) CALLED UPON TO BALANCE FIRST AMENDMENT
RIGHTS AGAINST (LEGITIMATE) GOVERNMENTAL . . . INTERESTS."  IBID. 

ONE SUCH ALTERNATIVE AVAILABLE TO CALIFORNIA PRISON INMATES IS
COMMUNICATION BY MAIL.  ALTHOUGH PRISON REGULATIONS, UNTIL RECENTLY,
CALLED FOR THE CENSORSHIP OF STATEMENTS, INTER ALIA, THAT "UNDULY
COMPLAIN" OR "MAGNIFY GRIEVANCES," THAT EXPRESS "INFLAMMATORY
POLITICAL, RACIAL, RELIGIOUS OR OTHER VIEWS," OR THAT WERE DEEMED
"DEFAMATORY" OR "OTHERWISE INAPPROPRIATE," WE RECENTLY HELD THAT "THE
DEPARTMENT'S REGULATIONS AUTHORIZED CENSORSHIP OF PRISONER MAIL FAR
BROADER THAN ANY LEGITIMATE INTEREST OF PENAL ADMINISTRATION DEMANDS,"
AND ACCORDINGLY AFFIRMED A DISTRICT COURT JUDGMENT INVALIDATING THE
REGULATIONS.  PROCUNIER V. MARTINEZ, 416 U. S. 396, 416 (1974).  IN
ADDITION, WE HELD THAT "(THE INTEREST OF PRISONERS AND THEIR
CORRESPONDENTS IN UNCENSORED COMMUNICATION BY LETTER, GROUNDED AS IT IS
IN THE FIRST AMENDMENT, IS PLAINLY A 'LEBERTY' INTEREST WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT EVEN THOUGH QUALIFIED OF NECESSITY
BY THE CIRCUMSTANCE OF IMPRISONMENT."  ACCORDINGLY, WE CONCLUDED THAT
ANY "DECISION TO CENSOR OR WITHHOLD DELIVERY OF A PARTICULAR LETTER
MUST BE ACCOMPANIED BY MINIMAL PROCEDURAL SAFEGUARDS."  ID., AT 418,
417.  THUS, IT IS CLEAR THAT THE MEDIUM OF WRITTEN CORRESPONDENCE
AFFORDS INMATES AN OPEN AND SUBSTANTIALLY UNIMPEDED CHANNEL FOR
COMMUNICATION WITH PERSONS OUTSIDE THE PRISON, INCLUDING
REPRESENTATIVES OF THE NEWS MEDIA. 

MOREOVER, THE VISITATION POLICY OF THE CALIFORNIA CORRECTIONS
DEPARTMENT DOES NOT SEAL THE INMATE OFF FROM PERSONAL CONTACT WITH
THOSE OUTSIDE THE PRISON.  INMATES ARE PERMITTED TO RECEIVE LIMITED
VISITS FROM MEMBERS OF THEIR FAMILIES, THE CLERGY, THEIR ATTORNEYS, AND
FRIENDS OF PRIOR ACQUAINTANCE.  /4/  THE SELECTION OF THESE CATEGORIES
OF VISITORS IS BASED ON THE DIRECTOR'S PROFESSIONAL JUDGMENT THAT SUCH
VISITS WILL AID IN THE REHABILITATION OF THE INMATE WHILE NOT
COMPROMISING THE OTHER LEGITIMATE OBJECTIVES OF THE CORRECTIONS
SYSTEM.  THIS IS NOT A CASE IN WHICH THE SELECTION IS BASED ON THE
ANTICIPATED CONTENT OF THE COMMUNICATION BETWEEN THE INMATE AND THE
PROSPECTIVE VISITOR.  IF A MEMBER OF THE PRESS FELL WITHIN ANY OF THESE
CATEGORIES, THERE IS NO SUGGESTION THAT HE WOULD NOT BE PERMITTED TO
VISIT WITH THE INMATE.  MORE IMPORTANTLY, HOWEVER, INMATES HAVE AN
UNRESTRICTED OPPORTUNITY TO COMMUNICATE WITH THE PRESS OR ANY OTHER
MEMBER OF THE PUBLIC THROUGH THEIR FAMILIES, FRIENDS, CLERGY, OR
ATTORNEYS WHO ARE PERMITTED TO VISIT THEM AT THE PRISON.  THUS, THIS
PROVIDES ANOTHER ALTERNATIVE AVENUE OF COMMUNICATION BETWEEN PRISON
INMATES AND PERSONS OUTSIDE THE PRISON. 

WE WOULD FIND THE AVAILABILITY OF SUCH ALTERNATIVES UNIMPRESSIVE IF
THEY WERE SUBMITTED AS JUSTIFICATION FOR GOVERNMENTAL RESTRICTION OF
PERSONAL COMMUNICATION AMONG MEMBERS OF THE GENERAL PUBLIC.  WE HAVE
RECOGNIZED, HOWEVER, THAT "(THE RELATIONSHIP OF STATE PRISONERS AND THE
STATE OFFICERS WHO SUPERVISE THEIR CONFINEMENT IS FAR MORE INTIMATE
THAN THAT OF A STATE AND A PRIVATE CITIZEN," AND THAT THE "INTERNAL
PROBLEMS OF STATE PRISONS INVOLVE ISSUES . . . PECULIARLY WITHIN STATE
AUTHORITY AND EXPERTISE."  PREISER V. RODRIGUEZ, 411 U. S. 475, 492
(1973). 

IN PROCUNIER V. MARTINEZ, SUPRA, WE COULD FIND NO LEGITIMATE
GOVERNMENTAL INTEREST TO JUSTIFLY THE SUBSTANTIAL RESTRICTIONS THAT HAD
THERE BEEN IMPOSED ON WRITTEN COMMUNICATION BY INMATES.  WHN, HOWEVER,
THE QUESTION INVOLVES THE ENTRY OF PEOPLE INTO THE PRISONS FOR FACE-TO
FACE COMMUNICATION WITH INMATES, IT IS OBVIOUS THAT INSTITUTIONAL
CONSIDERATIONS, SUCH AS SECURITY AND RELATED ADMINISTRATIVE PROBLEMS,
AS WELL AS THE ACCEPTED AND LEGITIMATE POLICY OBJECTIVES OF THE
CORRECTIONS SYSTEM ITSELF, REQUIRE THAT SOME LIMITATION BE PLACED ON
SUCH VISITATIONS.  SO LONG AS REASONABLE AND EFFECTIVE MEANS OF
COMMUNICATION REMAIN OPEN AND NO DISCRIMINATION IN TERMS OF CONTENT IS
INVOLVED, WE BELIEVE THAT, IN DRAWING SUCH LINES, "PRISON OFFICIALS
MUST BE ACCORDED LATITUDE."  CRUZ V. BETO, 405 U. S., AT 321. 

IN A NUMBER OF CONTEXTS, WE HAVE HELD "THAT REASONABLE 'TIME, PLACE
AND MANNER' REGULATIONS (OF COMMUNICATIVE ACTIVITY) MAY BE NECESSARY TO
FURTHER SIGNIFICANT GOVERNMENTAL INTERESTS, AND ARE PERMITTED." 
GRAYNED V. CITY OF ROCKFORD, 408 U. S. 104, 115 (1972); COX V. NEW
HAMPSHIRE, 312 U. S. 569, 575 - 576 (1941); POULOS V. NEW HAMPSHIRE,
345 U. S. 395, 398 (1953); COX V. LOUISIANA, 379 U. S. 536, 554 - 555
(1965); ADDERLEY V. FLORIDA, 385 U. S. 39, 46 - 48 (1966).  "THE NATURE
OF A PLACE, THE PATTERN OF ITS NORMAL ACTIVITIES, DICTATE THE KINDS OF
REGULATIONS OF TIME, PLACE, AND MANNER THAT ARE REASONABLE."  GRAYNED,
SUPRA, AT 116 (INTERNAL QUOTATION MARKS OMITTED).  THE "NORMAL
ACTIVITY" TO WHICH A PRISON IS COMMITTED--THE INVOLUNTARY CONFINEMENT
AND ISOLATION OF LARGE NUMBERS OF PEOPLE, SOME OF WHOM HAVE
DEMONSTRATED A CAPACITY FOR VIOLENCE--NECESSARILY REQUIRES THAT
CONSIDERABLE ATTENTION BE DEVOTED TO THE MAINTENANCE OF SECURITY. 
ALTHOUGH THEY WOULD NOT PERMIT PRISON OFFICIALS TO PROHIBIT ALL
EXPRESSION OR COMMUNICATION BY PRISON INMATES, SECURITY CONSIDERATIONS
ARE SUFFICIENTLY PARAMOUNT IN THE ADMINISTRATION OF THE PRISON TO
JUSTIFY THE IMPOSITION OF SOME RESTRICTIONS ON THE ENTRY OF OUTSIDERS
INTO THE PRISON FOR FACE-TO-FACE CONTACT WITH INMATES.     IN THIS CASE
THE RESTRICTION TAKES THE FORM OF LIMITING VISITATIONS TO INDIVIDUALS
WHO HAVE EITHER A PERSONAL OR PROFESSIONAL RELATIONSHIP TO THE INMATE-
FAMILY, FRIENDS OF PRIOR ACQUAINTANCE, LEGAL COUNSEL, AND CLERGY.  IN
THE JUDGMENT OF THE STATE CORRECTIONS OFFICIALS, THIS VISITATION POLICY
WILL PERMIT INMATES TO HAVE PERSONAL CONTACT WITH THOSE PERSONS WHO
WILL AID IN THEIR REHABILITATION, WHILE KEEPING VISITATIONS AT A
MANAGEABLE LEVEL THAT WILL NOT COMPROMISE INSTITUTIONAL SECURITY.  SUCH
CONSIDERATIONS ARE PECULIARLY WITHIN THE PROVINCE AND PROFESSIONAL
EXPERTISE OF CORRECTIONS OFFICIALS, AND, IN THE ABSENCE OF SUBSTANTIAL
EVIDENCE IN THE RECORD TO INDICATE THAT THE OFFICIALS HAVE EXAGGERATED
THEIR RESPONSE TO THESE CONSIDERATIONS, COURTS SHOULD ORDINARILY DEFER
TO THEIR EXPERT JUDGMENT IN SUCH MATTERS.  COURTS CANNOT, OF COURSE,
ABDICATE THEIR CONSTITUTIONAL RESPONSIBILITY TO DELINEATE AND PROTECT
FUNDAMENTAL LIBERTIES.  BUT WHEN THE ISSUE INVOLVES REGULATION LIMITING
ONE OF SEVERAL MEANS OF COMMUNICATION BY AN INMATE, THE INSTITUTIONAL
OBJECTIVES FURTHERED BY THAT REGULATION AND THE MEASURE OF JUDICIAL
DEFERENCE OWED TO CORRECTIONS OFFICIALS IN THEIR ATTEMPT TO SERVE THOSE
INTERESTS ARE RELEVANT IN GAUGING THE VALIDITY OF THE REGULATION. 

ACCORDINGLY, IN LIGHT OF THE ALTERNATIVE CHANNELS OF COMMUNICATION
THAT ARE OPEN TO PRISON INMATES, /5/  WE CANNOT SAY ON THE RECORD IN
THIS CASE THAT THIS RESTRICTION ON ONE MANNER IN WHICH PRISONERS CAN
COMMUNICATE WITH PERSONS OUTSIDE OF PRISON IS UNCONSTITUTIONAL.  SO
LONG AS THIS RESTRICTION OPERATES IN A NEUTRAL FASHION, WITHOUT REGARD
TO THE CONTENT OF THE EXPRESSION, IT FALLS WITHIN THE "APPROPRIATE
RULES AND REGULATIONS" TO WHICH "PRISONERS NECESSARILY ARE SUBJECT,"
CRUZ V. BETO, SUPRA, AT 321, AND DOES NOT ABRIDGE ANY FIRST AMENDMENT
FREEDOMS RETAINED BY PRISON INMATES.  /6/

        II 

IN NO. 73 - 918, THE MEDIA PLAINTIFFS ASK US TO HOLD THAT THE
LIMITATION ON PRESS INTERVIEWS IMPOSED BY 415.071 VIOLATES THE FREEDOM
OF THE PRESS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  THEY
CONTEND THAT, IRRESPECTIVE OF WHAT FIRST AMENDMENT LIBERTIES MAY OR MAY
NOT BE RETAINED BY PRISON INMATES, MEMBERS OF THE PRESS HAVE A
CONSTITUTIONAL RIGHT TO INTERVIEW ANY INMATE WHO IS WILLING TO SPEAK
WITH THEM, IN THE ABSENCE OF AN INDIVIDUALIZED DETERMINATION THAT THE
PARTICULAR INTERVIEW MIGHT CREATE A CLEAR AND PRESENT DANGER TO PRISON
SECURITY OR TO SOME OTHER SUBSTANTIAL INTEREST SERVED BY THE
CORRECTIONS SYSTEM.  IN THIS REGARD, THE MEDIAL PLAINTIFFS DO NOT CLAIM
ANY IMPAIRMENT OF THEIR FREEDOM TO PUBLISH, FOR CALIFORNIA IMPOSES NO
RESTRICTIONS ON WHAT MAY BE PUBLISHED ABOUT ITS PRISONS, THE PRISON
INMATES, OR THE OFFICERS WHO ADMINISTER THE PRISONS.  INSTEAD, THEY
RELY ON THEIR RIGHT TO GATHER NEWS WITHOUT GOVERNMENTAL INTERFERENCE,
WHICH THE MEDIAL PLAINTIFFS ASSERT INCLUDES A RIGHT OF ACCESS TO THE
SOURCES OF WHAT IS REGARDED AS NEWSWORTHY INFORMATION. 

WE NOTE AT THE OUTSET THAT THIS REGULATION IS NOT PART OF AN ATTEMPT
BY THE STATE TO CONCEAL THE CONDITION IN ITS PRISONS OR TO FRUSTRATE
THE PRESS' INVESTIGATION AND REPORTING OF THOSE CONDITIONS.  INDEED,
THE RECORD DEMONSTRATES THAT, UNDER CURRENT CORRECTIONS POLICY, BOTH
THE PRESS AND THE GENERAL PUBLIC ARE ACCORDED FULL OPPORTUNITIES TO
OBSERVE PRISON CONDITIONS.  /7/  THE DEPARTMENT OF CORRECTIONS
REGULARLY CONDUCTS PUBLIC TOURS THROUGH THE PRISONS FOR THE BENEFIT OF
INTERESTED CITIZENS.  IN ADDITION, NEWSMEN ARE PERMITTED TO VISIT BOTH
THE MAXIMUM AND MINIMUM SECURITY SECTIONS OF THE INSTITUTIONS AND TO
STOP AND SPEAK ABOUT ANY SUBJECT TO ANY INMATES WHOM THEY MIGHT
ENCOUNTER.  IF SECURITY CONSIDERATIONS PERMIT, CORRECTIONS PERSONNEL
WILL STEP ASIDE TO PERMIT SUCH INTERVIEWS TO BE CONFIDENTAL.  APART
FROM GENERAL ACCESS TO ALL PARTS OF THE INSTITUTIONS, NEWSMEN ARE ALSO
PERMITTED TO ENTER THE PRISONS TO INTERVIEW INMATES SELECTED AT RANDOM
BY THE CORRECTIONS OFFICIALS.  BY THE SAME TOKEN, IF A NEWSMAN WISHES
TO WRITE A STORY ON A PARTICULAR PRISON PROGRAM, HE IS PERMITTED TO SIT
IN ON GROUP MEETINGS AND TO INTERVIEW THE INMATE PARTICIPANTS.  IN
SHORT, MEMBERS OF THE PRESS ENJOY ACCESS TO CALIFORNIA PRISONS THAT IS
NOT AVAILABLE TO OTHER MEMBERS OF THE PUBLIC. 

THE SOLE LIMITATION ON NEWSGATHERING IN CALIFORNIA PRISONS IS THE
PROHIBITION IN 415.071 OF INTERVIEWS WITH INDIVIDUAL INMATES
SPECIFICALLY DESIGNATED REPRESENTATIVES OF THE PRESS.  THIS RESTRICTION
IS OF RECENT VINTAGE, HAVING BEEN IMPOSED IN 1971 IN RESPONSE TO A
VIOLENT EPISODE THAT THE DEPARTMENT OF CORRECTIONS FELT WAS AT LEAST
PARTIALLY ATTRIBUTABLE TO THE FORMER POLICY WITH RESPECT TO FACE-TO
FACE PRISONER-PRESS INTERVIEWS.  PRIOR TO THE PROMULGATION OF 415.071,
EVERY JOURNALIST HAD VIRTUALLY FREE ACCESS TO INTERVIEW ANY INDIVIDUAL
INMATE WHOM HE MIGHT WISH.  ONLY MEMBERS OF THE PRESS WERE ACCORDED
THIS PRIVILEGE; OTHER MEMBERS OF THE GENERAL PUBLIC DID NOT HAVE THE
BENEFIT OF SUCH AN UNRESTRICTED VISITATION POLICY.  THUS, THE
PROMULGATION OF 415.071 DID NOT IMPOSE A DISCRIMINATION AGAINST PRESS
ACCESS, BUT MERELY ELIMINATED A SPECIAL PRIVILEGE FORMERLY GIVEN TO
REPRESENTATIVES OF THE PRESS VIS-A-VIS MEMBERS OF THE PUBLIC
GENERALLY.  /8/ 

IN PRACTICE, IT WAS FOUND THAT THE POLICY IN EFFECT PRIOR TO THE
PROMULGATION OF 415.071 HAD RESULTED IN PRESS ATTENTION BEING
CONCENTRATED ON A RELATIVELY SMALL NUMBER OF INMATES WHO, AS A RESULT,
BECAME VIRTUAL "PUBLIC FIGURES" WITHIN THE PRISON SOCIETY AND GAINED A
DISPROPORTIONATE DEGREE OF NOTORIETY AND INFLUENCE AMONG THEIR FELLOW
INMATES.  BECAUSE OF THIS NOTORIETY AND INFLUENCE, THESE INMATES OFTEN
BECAME THE SOURCE OF SEVERE DISCIPLINARY PROBLEMS.  FOR EXAMPLE,
EXTENSIVE PRESS ATTENTION TO AN INMATE WHO ESPOUSED A PRACTICE OF
NONCOOPERATION WITH PRISON REGULATIONS ENCORURAGED OTHER INMATES TO
FOLLOW SUIT, THUS ERODING THE INSTITUTIONS'  ABILITY TO DEAL
EFFECTIVELY WITH THE INMATES GENERALLY.  FINALLY, IN THE WORDS OF THE
DISTRICT COURT, ON AUGUST 21, 1971, "(DURING AN ESCAPE ATTEMPT AT SAN
QUENTIN THREE STAFF MEMBERS AND TWO INMATES WERE KILLED.  THIS WAS
VIEWED BY THE OFFICIALS AS THE CLIMAX OF MOUNTING DISCIPLINARY PROBLEMS
CAUSED, IN PART, BY ITS LIBERAL POSTURE WITH REGARD TO PRESS
INTERVIEWS, AND ON AUGUST 23 415.071 WAS ADOPTED TO MITIGATE THE
PROBLEN."  364 F. SUPP., AT 198.  IT IS AGAINST THIS BACKGROUND THAT WE
CONSIDER THE MEDIA PLAINTIFFS' CLAIMS UNDER THE FIRST AND FOURTEENTH
AMENDMENTS. 

THE CONSTITUTIONAL GUARANTEE OF A FREE PRESS "ASSURES THE
MAINTENANCE OF OUR POLITICAL SYSTEM AND AN OPEN SOCIETY," TIME, INC. V.
HILL, 385 U. S. 374, 389 (1967), AND SECURES "THE PARAMOUNT PUBLIC
INTEREST IN A FREE FLOW OF INFORMATION TO THE PEOPLE CONCERNING PUBLIC
OFFICIALS,"  GARRISON V. LOUISIANA, 379 U. S. 64, 77 (1964).  SEE ALSO
NEW YORK TIMES CO. V. SULLIVAN, 376 U. S. 254 (1964).  BY THE SAME
TOKEN, "'(ANY SYSTEM OF PRIOR RESTRAINTS OF EXPRESSION COMES TO THIS
COURT BEARING A HEAVY PRESUMPTION AGAINST ITS CONSTITUTIONAL
VALIDITY.'"  NEW YORK TIMES CO. V. UNITED STATES, 403 U. S. 713, 714
(1971); ORGANIZATION FOR A BETTER AUSTIN V. KEEFE, 402 U. S. 415
(1971); NEAR V. MINNESOTA EX REL. OLSON, 283 U. S. 697 (1931). 
CORRELATIVELY, THE FIRST AND FOURTEENTH AMENDMENTS ALSO PROTECT THE
RIGHT OF THE PUBLIC TO RECEIVE SUCH INFORMATION AND IDEAS AS ARE
PUBLISHED.  KLEINDIENST V. MANDEL, 408 U. S., AT 762 - 763; STANLEY V.
GEORGIA, 394 U. S. 557, 564 (1969). 

IN BRANZBURG V. HAYES, 408 U. S. 665 (1972), THE COURT WENT FURTHER
AND ACKNOWLEDGED THAT "NEWS GATHERING IS NOT WITHOUT ITS FIRST
AMENDMENT PROTECTIONS," ID., AT 707, FOR "WITHOUT SOME PROTECTION FOR
SEEKING OUT THE NEWS, FREEDOM OF THE PRESS COULD BE EVISCERATED," ID.,
AT 681.  IN BRANZBURG THE COURT HELD THAT THE FIRST AND FOURTEENTH
AMENDMENTS WERE NOT ABRIDGED BY REQUIRING REPORTERS TO DISCLOSE THE
IDENTITY OF THEIR CONFIDENTIAL SOURCES TO A GRAND JURY WHEN THAT
INFORMATION WAS NEEDED IN THE COURSE OF A GOOD-FAITH CRIMINAL
INVESTIGATION.  THE COURT THERE COULD "PERCEIVE NO BASIS FOR HOLDING
THAT THE PUBLIC INTEREST IN LAW ENFORCEMENT AND IN ENSURING EFFECTIVE
GRAND JURY PROCEEDINGS (WAS) INSUFFICIENT TO OVERRIDE THE
CONSEQUENTIAL, BUT UNCERTAIN, BURDEN ON NEWS GATHERING THAT IS SAID TO
RESULT FROM INSISTING THAT REPORTERS, LIKE OTHER CITIZENS, RESPOND TO
RELEVANT QUESTIONS PUT TO THEN IN THE COURSE OF A VALID GRAND JURY
INVESTIGATION OR CRIMINAL TRIAL," ID., AT 690 - 691. 

IN THIS CASE, THE MEDIAL PLAINTIFFS CONTEND THAT 415.071 CONSTITUTES
GOVERNMENTAL INTERFERENCE WITH THEIR NEWSGATHERING ACTIVITIES THAT IS
NEITHER CONSEQUENTIAL NOR UNCERTAIN, AND THAT NO SUBSTANTIAL
GOVERNMENTAL INTEREST CAN BE SHOWN TO JUSTIFY THE DENIAL OF PRESS
ACCESS TO SPECIFICALLY DESIGNATED PRISON INMATES.  MORE PARTICULARLY,
THE MEDIA PLAINTIFFS ASSERT THAT, DESPITE THE SUBSTANTIAL ACCESS TO
CALIFORNIA PRISONS AND THEIR INMATES ACCORDED REPRESENTATIVES OF THE
PRESS--ACCESS BROADER THAN IS ACCORDED MEMBERS OF THE PUBLIC GENERALLY-
FACE-TO-FACE INTERVIEWS WITH SPECIFICALLY DESIGNATED INMATES IS SUCH AN
EFFECTIVE AND SUPERIOR METHOD OF NEWSGATHERING THAT ITS CURTAILMENT
AMOUNTS TO UNCONSTITUTIONAL STATE INTERFERENCE WITH A FREE PRESS WE DO
NOT AGREE. 

"IT HAS GENERALLY BEEN HELD THAT THE FIRST AMENDMENT DOES NOT
GUARANTEE THE PRESS A CONSTITUTIONAL RIGHT OF SPECIAL ACCESS TO
INFORMATION NOT AVAILABLE TO THE PUBLIC GENERALLY.  . . . DESPITE THE
FACT THAT NEWS GATHERING MAY BE HAMPERED, THE PRESS IS REGULARLY
EXCLUDED FROM GRAND JURY PROCEEDINGS, OUR OWN CONFERENCES, THE MEETINGS
OF OTHER OFFICIAL BODIES GATHERING IN EXECUTIVE SESSION, AND THE
MEETINGS OF PRIVATE ORGANIZATIONS.  NEWSMEN HAVE NO CONSTITUTIONAL
RIGHT OF ACCESS TO THE SCENES OF CRIME OR DISASTER WHEN THE GENERAL
PUBLIC IS EXCLUDED."  BRANZBURY V. HAYES, SUPRA, AT 684 - 685. 
SIMILARLY, NEWSMEN HAVE NO CONSTITUTIONAL RIGHT OF ACCESS TO PRISONS OR
THEIR INMATES BEYOND THAT AFFORDED THE GENERAL PUBLIC 

THE FIRST AND FOURTEENTH AMENDMENTS BAR GOVERNMENT FROM INTERFERING
IN ANY WAY WITH A FREE PRESS.  THE CONSTITUTION DOES NOT, HOWEVER,
REQUIRE GOVERNMENT TO ACCORD THE PRESS SPECIAL ACCESS TO INFORMATION
NOT SHARED BY MEMBERS OF THE PUBLIC GENERALLY.  /9/  IT IS ONE THING TO
SAY THAT A JOURNALIST IS FREE TO SEEK OUT SOURCES OF INFORMATION NOT
AVAILABLE TO MEMBERS OF THE GENERAL PUBLIC, THAT HE IS ENTITLED TO SOME
CONSTITUTIONAL PROTECTION OF THE CONFIDENTIALITY OF SUCH SOURCES, CF.
BRANZBURY V. HAYES, SUPRA, AND THAT GOVERNMENT CANNOT RESTRAIN THE
PUBLICATION OF NEWS EMANATING FROM SUCH SOURCES.  CF.  NEW YORK TIMES
CO. V. UNITED STATES, SUPRA.  IT IS QUITE ANOTHER THING TO SUGGEST THAT
THE CONSTITUTION IMPOSES UPON GOVERNMENT THE AFFIRMATIVE DUTY TO MAKE
AVAILABLE TO JOURNALISTS SOURCES OF INFORMATION NOT AVAILABLE TO
MEMBERS OF THE PUBLIC GENERALLY.  THAT PROPOSITION FINDS NO SUPPORT IN
THE WORDS OF THE CONSTITUTION OR IN ANY DECISION OF THIS COURT. 
ACCORDINGLY, SINCE 415.071 DOES NOT DENY THE PRESS ACCESS TO SOURCES OF
INFORMATION AVAILABLE TO MEMBERS OF THE GENERAL PUBLIC, WE HOLD THAT IT
DOES NOT ABRIDGE THE PROTECTIONS THAT THE FIRST AND FOURTEENTH
AMENDMENTS GUARANTEE. 

FOR THE REASONS STATED, WE REVERSE THE DISTRICT COURT'S JUDGMENT
THAT 415.071 INFRINGES THE FREEDOM OF SPEECH OF THE PRISON INMATES AND
AFFIRM ITS JUDGMENT THAT THAT REGULATION DOES NOT ABRIDGE THE
CONSTITUTIONAL RIGHT OF A FREE PRESS.  ACCORDINGLY, THE JUDGMENT IS
VACATED, AND THE CASES ARE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

       IT IS SO ORDERED. 

/1/  THIS LITIGATION WAS FIRST INITIATED BEFORE A SINGLE JUDGE AND
PROCEEDED FOR NEARLY A YEAR WITH THE COURT'S ATTENTION FOCUSED ON THE
INTERVIEW PRACTICE AT SAN QUENTIN STATE PENITENTIARY, WHERE ALL THE
INMATE PLAINTIFFS ARE CONFINED, WHERE THE INTERVIEWS SOUGHT BY THE
MEDIA PLAINTIFFS WERE TO OCCUR, AND WHERE ALL THE DEFENDANTS, EXCEPT
MR. PROCUNIER, ARE EMPLOYED.  AFTER THE MATTER WAS BRIEFED AND ARGUED,
THE SINGLE JUDGE PRELIMINARILY ENJOINED THE ENFORCEMENT OF 415.071. 
ONLY THEN DID THE DEFENDANTS BRING TO THE COURT'S ATTENTION THAT
415.071 WAS A REGULATION OF STATEWIDE APPLICATION.  THEREAFTER A THREE
JUDGE COURT WAS CONVENED TO PASS ON THE CONSTITUTIONAL VALIDITY OF THE
REGULATION. 

/2/  THE PERIODICAL HAS SINCE CEASED PUBLICATION AND ITS EDITORS DID
NOT JOIN THE MEDIA PLAINTIFFS IN THIS LITIGATION. 

/3/  THERE IS SOME QUESTION AS TO WHETHER THE INTERVIEW BETWEEN
HILLERY AND THE MAGAZINE EDITORS WAS DENIED UNDER THE AUTHORITY OF
415.071.  DEPARTMENT OF CORRECTIONS INTERVIEW POLICY PERMITS, ON A CASE
BY-CASE BASIS, MEETINGS BETWEEN INMATE AUTHORS AND THEIR PUBLISHERS. 
THE DEFENDANTS CONTEND THAT THE INTERVIEW WAS DENIED HERE BECAUSE THE
OFFICIALS MADE AN INDIVIDUALIZED DETERMINATION THAT THE MEETING WAS NOT
IN FACT NECESSARY TO EFFECTUATE THE PUBLICATION OF HILLERY'S WORKS. 
HILLERY, ON THE OTHER HAND, NOTES THAT THE EDITORS HAD INDICATED TO THE
PRISON OFFICIALS THAT THEY ALSO WISHED TO DISCUSS WITH HIM THE
CONDITIONS IN THE PRISON IN ORDER TO PUBLISH AN ARTICLE ON THAT
SUBJECT.  THUS, IT APPEARS THAT THE DENIAL WAS IN ALL LIKELIHOOD BASED
AT LEAST IN PART ON 415.071. 

/4/  THIS POLICY DOES NOT APPEAR TO BE CODIFIED OR OTHERWISE
EXPRESSLY ARTICULATED IN ANY GENERALLY APPLICABLE RULE OR REGULATION. 
THE STATEMENT OF VISITING PRIVILEGES FOR SAN QUENTIN STATE PRISON
INDICATES THAT ALL VISITORS MUST BE APPROVED BY THE CORRECTIONS
OFFICIALS AND MUST BE EITHER "MEMBERS OF THE FAMILY OR FRIENDS OF LONG
STANDING."  IT ALSO PERMITS VISITS BY ATTORNEYS TO THEIR CLIENTS. 
ALTHOUGH NOTHING IS SAID IN THIS STATEMENT ABOUT VISITS BY MEMBERS OF
THE CLERGY, THERE IS NO DISPUTE AMONG THE PARTIES THAT THE PRACTICE OF
THE DEPARTMENT OF CORRECTIONS IS TO PERMIT SUCH VISITS.  THERE IS ALSO
NO DISAGREEMENT AMONG THE PARTIES THAT THIS VISITATION POLICY IS
GNERALYY APPLIED BY THE DEPARTMENT THROUGHOUT THE STATE CORRECTIONS
SYSTEM.     /5/  IT IS SUGGESTED BY THE INMATE APPELLEES THAT THE USE
OF THE MAILS AS AN ALTERNATIVE MEANS OF COMMUNICATION MAY NOT BE
EFFECTIVE IN THE CASE OF PRISONERS WHO ARE INARTICULATE OR EVEN
ILLITERATE.  THERE IS NO INDICATION, HOWEVER, THAT ANY OF THE FOUR
INMATES BEFORE THE COURT SUFFER FROM EITHER OF THESE DISABILITIES. 
INDEED, THE RECORD AFFIRMATIVELY SHOWS THAT TWO OF THE INMATES ARE
PUBLISHED WRITERS.  ALTHOUGH THE COMPLAINT WAS FILED AS A CLASS ACTION,
THE PLAINTIFFS NEVER MOVED THE DISTRICT COURT TO CERTIFY THE CASE AS A
CLASS ACTION AS REQUIRED BY FED. RULES CIV. PROC. 23 (B) (3) AND (C). 
THUS, THE SHORT ANSWER TO THE INMATES' CONTENTION IS THAT THERE IS
NEITHER A FINDING BY THE DISTRICT COURT NOR SUPPORT IN THE RECORD FOR A
FINDING THAT THE ALTERNATIVE CHANNELS OF COMMUNICATION ARE NOT AN
EFFECTIVE MEANS FOR THE INMATE APPELLEES TO EXPRESS THEMSELVES TO
PERSONS OUTSIDE THE PRISON. 

EVEN WITH RESPECT TO INMATES WHO MAY NOT BE LITERATE OR ARTICULATE,
HOWEVER, THERE IS NO SUGGESTION THAT THE CORRECTIONS OFFICIALS WOULD
NOT PERMIT SUCH INMATES TO SEEK THE AID OF FELLOW INMATES OR OF FAMILY
AND FRIENDS WHO VISIT THEM TO COMMIT THEIR THOUGHTS TO WRITING FOR
COMMUNICATION TO INDIVIDUALS IN THE GENERAL PUBLIC.  CF. JOHNSON V.
AVERY, 393 U. S. 483 (1969).  MERELY BECAUSE SUCH INMATES MAY NEED
ASSISTANCE TO UTILIZE ONE OF THE ALTERNATIVE CANNELS DOES NOT MAKE IT
AN INEFFECTIVE ALTERNATIVE, UNLESS, OF COURSE, THE STATE PROHIBITS THE
INMATE FROM RECIVING SUCH ASSISTANCE. 

/6/  THE INMATES ARGUE THAT RESTRICTING THEIR ACCESS TO PRESS
REPRESENTATIVES UNCONSTITUTIONALLY BURDENS THEIR FIRST AND FOURTEENTH
AMENDMENT RIGHT TO PETITION THE GOVERNMENT FOR THE REDRESS OF
GRIEVANCES.  COMMUNICATION WITH THE PRESS, THE INMATES CONTEND,
PROVIDES THEM WITH THEIR ONLY EFFECTIVE OPPORTUNITY TO COMMUNICATE
THEIR GRIEVANCES.  THROUGH THE CHANNEL OF PUBLIC OPINION, TO THE
LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT.  WE THINK,
HOWEVER, THAT THE ALTERNATIVE MEANS OF COMMUNICATION WITH THE PRESS
THAT ARE AVAILABLE TO PRISONERS, TOGETHER WITH THE SUBSTANTIAL ACCESS
TO PRISONS THAT CALIFORNIA ACCORDS THE PRESS AND OTHER MEMBERS OF THE
PUBLIC, SEE INFRA, AT 830 - 831, SATISFIES WHATEVER RIGHT THE INMATES
MAY HAVE TO PETITION THE GOVERMENT THROUGH THE PRESS. 

WE ALSO NOTE THAT CALIFORNIA ACCORDS PRISON INMATES SUBSTANTIAL
OPPORTUNITIES TO PETITION THE EXECUTIVE, LEGISLATIVE, AND JUDICIAL
BRANCHES OF GOVERNMENT DIRECTLY.  SECTION 2600 OF THE CALIFORNIA PENAL
CODE PERMITS AN INMATE TO CORRESPOND CONDIFENTIALLY WITH ANY PUBLIC
OFFICEHOLDER.  AND VARIOUS RULES PROMULGATED BY THE DEPARTMENT OF
CORRECTIONS EXPLICITLY PERMIT AN INMATE TO CORRESPOND WITH THE
GOVERNOR, ANY OTHER ELECTED STATE OR FEDERAL OFFICIAL, AND ANY
APPOINTED HEAD OF A STATE OR FEDERAL AGENCY.  SIMILARLY, CALIFORNIA HAS
ACTED TO ASSURE PRISONERS THE RIGHT TO PETITION FOR JUDICIAL RELIEF. 
SEE, E. G., IN RE JORDAN, 7 CAL 3D 930, 500 P. 2D 873 (1972); IN RE VAN
GELDERN, 5 CAL. 3D 832, 489 P. 2D 578 (1971); IN RE HARRELL, 2 CAL. 3D
675, 470 P. 2D 640 (1970).  SECTION 845.4 OF THE CALIFORNIA GOVERNMENT
CODE ALSO MAKES PRISON OFFICIALS LIABLE FOR INTENTIONAL INTERFERENCE
WITH THE RIGHT OF A PRISONER TO OBTAIN JUDICIAL RELIEF FROM HIS
CONFINEMENT. 

/7/  THIS POLICY REFLECTS A RECOGNITION THAT THE CONDITIONS IN THIS
NATION'S PRISONS ARE A MATTER THAT IS BOTH NEWSWORTHY AND OF GREAT
PUBLIC IMPORTANCE.  AS THE CHIEF JUSTICE HAS COMMENTED, WE CANNOT
"CONTINUE . . . TO BRUSH UNDER THE RUG THE PROBLEMS OF THOSE WHO ARE
FOUND GUILTY AND SUBJECT TO CRIMINAL SENTENCE.  . . . IT IS A
MELANCHOLY TRUTH THAT IT HAS TAKEN THE TRAGIC PRISON OUTBREAKS OF THE
PAST THREE YEARS TO FOCUS WIDESPREAD PUBLIC ATTENTION ON THIS
PROBLEM."  BURGER, OUR OPTIONS ARE LIMITED, 18 VILL.  L. REV. 165, 167
(1972).  ALONG THE SAME LINES, THE CHIEF JUSTICE HAS CORRECTLY OBSERVED
THAT "(IF WE WANT PRISONERS TO CHANGE, PUBLIC ATTITUDES TOWARD
PRISONERS AND EX-PRISONERS MUST CHANGE.  . . . A VISIT TO MOST PRISONS
WILL MAKE YOU A ZEALOT FOR PRISON REFORM."  W. BURGER, FOR WHOM THE
BELL TOLLS, REPRINTED AT 25 RECORD OF N. Y. C. B. A. (SUPP.) 14, 20, 21
(1970). 

/8/  IT CANNOT BE CONTENDED THAT BECAUSE CALIFORNIA PERMITS FAMILY,
FRIENDS, ATTORNEYS, AND CLERGY TO VISIT INMATES, IT CANNOT LIMIT
VISITATIONS BY THE PRESS.  NO MEMBER OF THE GENERAL PUBLIC WHO DOES NOT
HAVE A PERSONAL OR PROFESSIONAL RELATIONSHIP TO THE INMATE IS PERMITTED
TO ENTER THE PRISON AND NAME AM INMATE WITH WHOM HE WOULD LIKE TO
ENGAGE IN FACE-TO-FACE DISCOURSE.  THUS, THE PRESS IS GRANTED THE SAME
ACCESS IN THIS RESPECT TO PRISON INMATES AS IS ACCORDED ANY MEMBER OF
THE GENERAL PUBLIC.  INDEED, AS IS NOTED IN THE TEXT, THE AGGREGATE
ACCESS THAT THE PRESS HAS TO CALIFORNIA PRISONS AND THEIR INMATES IS
SUBSTANTIALLY GREATER THAN THAT OF THE GENERAL PUBLIC. 

/9/  AS MR. CHIEF JUSTICE WARREN PUT THE MATTER IN WRITING FOR THE
COURT IN ZEMEL V. RUSK, 381 U. S. 1, 16 - 17 (1965), "(THERE ARE FEW
RESTRICTIONS ON ACTION WHICH COULD NOT BE CLOTHED BY INGENIOUS ARGUMENT
IN THE GARB OF DECREASED DATA FLOW.  FOR EXAMPLE, THE PROHIBITION OF
UNAUTHORIZED ENTRY INTO THE WHITE HOUSE DIMINISHES THE CITIZEN'S
OPPORTUNITIES TO GATHER INFORMATION HE MIGHT FIND RELEVANT TO HIS
OPINION OF THE WAY THE COUNTRY IS BEING RUN, BUT THAT DOES NOT MAKE
ENTRY INTO WHITE HOUSE A FIRST AMENDMENT RIGHT.  THE RIGHT TO SPEAK AND
PUBLISH DOES NOT CARRY WITH IT THE UNRESTRAINED RIGHT TO GATHER
INFORMATION." 

MR. JUSTICE POWELL, CONCURRING IN PART AND DISSENTING IN PART. 

THESE CROSS-APPEALS CONCERN THE CONSTITUTIONALITY, UNDER THE FIRST
AND FOURTEENTH AMENDMENTS, OF A REGULATION OF THE CALIFORNIA DEPARTMENT
OF CORRECTIONS THAT PROHIBITS ALL PERSONAL INTERVIEWS OF PRISON INMATES
BY REPRESENTATIVES OF THE NEWS MEDIA.  THIS REGULATION IS SUBSTANTIALLY
INDENTICAL TO THE UNITED STATES BUREAU OF PRISONS POLICY STATEMENT
WHOSE VALIDITY IS AT ISSUE IN SAXBE V. WASHINGTON POST CO., POST, P.
843.  FOR THE REASONS STATED IN MY DISSENTING OPINION IN THAT CASE,
POST, P. 850, I WOULD HOLD THAT CALIFORNIA'S ABSOLUTE BAN AGAINST
PRISONER-PRESS INTERVIEWS IMPERMISSIBLY RESTRAINS THE ABILITY OF THE
PRESS TO PERFORM ITS CONSTITUTIONALLY ESTABLISHED FUNCTION OF INFORMING
THE PEOPLE ON THE CONDUCT OF THEIR GOVERNMENT.  ACCORDINGLY, I DISSENT
FROM THE JUDGMENT OF THE COURT. 

THE CALIFORNIA CROSS-APPEALS DIFFER FROM THE WASHINGTON POST CASE IN
ONE SIGNIFICANT RESPECT.  HERE TO CONSTITUTIONALITY OF THE INTERVIEW
BAN IS CHALLENGED BY PRISONERS AS WELL AS NOWSMEN.  THUS THESE APPEALS,
UNLIKE WASHINGTON POST, RAISE THE QUESTION WHETHER INMATES AS
INDIVIDUALS HAVE A PERSONAL CONSTITUTIONAL RIGHT TO DEMAND INTERVIEWS
WITH WILLING REPORTERS.  BECAUSE I AGREE WITH THE MAJORITY THAT THEY DO
NOT, I JOIN PART I OF THE OPINION OF THE COURT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, DISSENTING.* 

*(THIS OPINION APPLIES ALSO TO NO. 73-1265, SAXBE ET AL. V.
WASHINGTON POST CO. ET AL., POST P. 843.) 

THESE CASES INVOLVE THE CONSTITUTIONALTIY, UNDER THE FIRST AND
FOURTEENTH AMENDMENTS, OF PRISON REGULATIONS LIMITING COMMUNICATION
BETWEEN STATE AND FEDERAL PRISONERS AND THE PRESS.  NOS. 73 - 754 AND
73 - 918 ARE CROSSAPPEALS FROM THE JUDGMENT OF A THREE-JUDGE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.  364 F. SUPP. 196.  SUIT
WAS BROUGHT IN THAT COURT BY FOUR CALIFORNIA STATE PRISONERS AND THREE
PROFESSIONAL JOURNALISTS CHALLENGING THE CONSTITUTIONALITY OF
CALIFORNIA DEPARTMENT OF CORRECTIONS MANUAL 415.071 WHICH IMPOSES AN
ABSOLUTE BAN ON MEDIA INTERVIEWS WITH INDIVIDUALLY DESIGNATED INMATES. 

THE COURT UPHELD THE PRISONERS' CLAIM THAT THIS REGULATION IS
VIOLATIVE OF THEIR RIGHT OF FREE SPEECH, AND, IN NO. 73 - 754, THE
DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS APPEALS FROM THE
COURT'S INJUNCTION AGAINST FURTHER ENFORCEMENT OF THE REGULATION.  AS
TO THE JOURNALISTS'  CLAIM, THE COURT NOTED: "THE MEDIA PLAINTIFFS
HEREIN AND AMICUS CURIAE ARGUE THAT 415.071 IS VIOLATIVE OF NOT ONLY
THE PRISONERS' FIRST AMENDMENT RIGHTS, BUT ALSO THE PRESS.'  THE COURT
DISAGREES."  364 F. SUPP., AT 199.  IN NO. 73 - 918, THE JOURNALISTS
APPEAL THIS REJECTION OF THEIR CLAIM. 

NO. 73 - 1265 INVOLVES A MEDIA CHALLENGE TO FEDERAL BUREAU OF
PRISONS POLICY STATEMENT 1220.1A, 4 (B) (6), WHICH PROHIBITS PRESS
INTERVIEWS WITH ANY PARTICULAR FEDERAL PRISONER IN ANY MEDIUM OR
MAXIMUM SECURITY FACILITY.  THE DISTRICT COURT HELD THE TOTAL BAN
VIOLATIVE OF THE FIRST AMENDMENT'S FREE PRESS GUARANTEE AND ENJOINED
ITS ENFORCEMENT.  357 F. SUPP. 770.  THE COURT OF APPEALS AFFIRMED SUB
NOM. WASHINGTON POST CO. V. KLEINDIENST, 161 U.S. APP. D.C. 75, 494
F.2D.  994.  AS THE MAJORITY NOTES, "(THE POLICIES OF THE FEDERAL
BUREAU OF PRISONS REGARDING VISITATIONS TO PRISON INMATES DO NOT DIFFER
SIGNIFICANTLY FROM THE CALIFORNIA POLICIES" HERE UNDER REVIEW. 

        I 

IN ANALYZING THE PRISONER CHALLENGE TO CALIFORNAI'S ABSOLUTE BAN ON
MEDIA INTERVIEWS WITH IINDIVIDUAL INMATES, I START WITH THE PROPOSITION
THAT "FOREMOST AMONG THE BILL OF RIGHTS OF PRISONERS IN THIS COUNTRY,
WHETHER UNDER STATE OR FEDERAL DETENTION, IS THE FIRST AMENDMENT. 
PRISONERS ARE STILL 'PERSONS' ENTITLED TO ALL CONSSTITUTIONAL RIGHTS
UNLESS THEIR LIBERTY HAS BEEN CONSTITUTIONALLY CURTAILED BY PROCEDURES
THAT SATISFY ALL THE REQUIREMENTS OF DUE PROCESS.  . . . FREE SPEECH
AND PRESS WITHIN THE MEANING OF THE FIRST AMENDMENT ARE, IN MY
JUDGMENT, AMONG THE PRE-EMINENT PRIVILEGES AND IMMUNITIES OF ALL
CITIZENS."  PROCUNIER V. MARTINEZ, 416 U. S. 396, 428 - 429 (DOUGLAS,
J., CONCURRING IN JUDGMENT).  WITH THAT PREMISE, I CANNOT AGREE WITH
THE COURT THAT CALIFORNIA'S GROSSLY OVERBROAD RESTRICTIONS ON PRISONER
SPEECH ARE CONSTITUTIONALLY PERMISSIBLE.  I AGREE THAT PRISON
DISCIPLINE, INMATE SAFETY, AND REHABILITATION MUST BE CONSIDERED IN
EVALUATING FIRST AMENDMENT RIGHTS IN THE PRISON CONTEXT.  FIRST
AMENDMENT PRINCIPLES MUST ALWAYS BE APPLIED "IN LIGHT OF THE SPECIAL
CHARACTERISTICS OF THE . . . INVIRONMENT."  TINKER V. DES MOINES SCHOOL
DISTRICT, 393 U. S. 503, 506; HEALY V. JAMES, 408 U. S. 169, 180.  BUT
THE PRISONERS HERE DO NOT CONTEND THAT PRISON OFFICIALS ARE POWERLESS
TO IMPOSE REASONABLE LIMITATIONS ON VISITS BY THE MEDIA WHICH ARE
NECESSARY IN PARTICULARIZED CIRCUMSTANCES TO MAINTAIN SECURITY,
DISCIPLINE, AND GOOD ORDER. 

ALL THAT THE PRISONERS CONTEND, AND ALL THAT THE COURTS BELOW FOUND,
IS THAT THESE PENAL INTERESTS CANNOT BE USED AS A JUSTIFICATION FOR AN
ABSOLUTE BAN ON MEDIA INTERVIEWS BECAUSE "(BROAD PROPHYLACTIC RULES IN
THE AREA OF FREE EXPRESSION ARE SUSPECT.  . . . PRECISION OF REGULATION
MUST BE THE TOUCHSTONE IN AN AREA SO CLOSELY TOUCHING OUR MOST PRECIOUS
FREEDOMS."  NAACP V. BUTTON, 371 U. S. 415, 438.  AND SEE CANTWELL V.
CONNECTICUT, 310 U. S. 296, 311. 

IT IS TRUE THAT THE PRISONERS ARE LEFT WITH OTHER MEANS OF
EXPRESSION SUCH AS VISITS BY RELATIVES AND COMMUNICATION BY MAIL.  BUT
THE STATE CAN HARDLY DEFEND AN OVERLY BROAD RESTRICTION ON EXPRESSION
BY DEMONSTRATING THAT IT HAS NOT ELIMINATED EXPRESSION COMPLETELY. 

AS MR. JUSTICE BLACK HAS SAID: 

"I CANNOT ACCEPT MY BROTHER HARLAN'S VIEW (IN DISSENT) THAT THE

  ABRIDGMENT OF SPEECH AND PRESS HERE DOES NOT VIOLATE THE FIRST

  AMENDMENT BECAUSE OTHER METHODS OF COMMUNICATION ARE LEFT OPEN. 

  THIS REASON FOR ABRIDGMENT STRIKES ME AS BEING ON A PAR WITH

  HOLDING THAT GOVERNMENTAL SUPPRESSION OF A NEWSPAPER IN A CITY

  WOULD NOT VIOLATE THE FIRST AMENDMENT BECAUSE THERE CONTINUE TO

  BE RADIO AND TELEVISION STATIONS.  FIRST AMENDMENT FREEDOMS CAN

  NO MORE VALIDLY BE TAKEN AWAY BY DEGREES THAN BY ONE FELL

  SWOOP."  NLRB V. FRUIT PACKERS, 337 U. S. 58, 79 - 80 (CONCURRING

 OPINION). 

A STATE MIGHT DECIDE THAT CRITICISM OF ITS AFFAIRS COULD BE REDUCED
BY PROHIBITING ALL ITS EMPLOYEES FROM DISCUSSING GOVERNMENTAL
OPERATIONS IN INTERVIEWS WITH THE MEDIA, LEAVING CRITICISM OF THE STATE
TO THOSE WITH THE TIME, ENERGY, ABILITY, AND INCLINATION TO COMMUNICATE
THROUGH THE MAILS.  THE PROHIBITION HERE IS NOT LESS OFFENSIVE TO FIRST
AMENDMENT PRINCIPLES; IT FLATLY PROHIBITS INTERVIEW COMMUNICATION WITH
THE MEDIA ON THE GOVERNMENT'S PENAL OPERATIONS BY THE ONLY CITIZENS
WITH THE BEST KNOWLEDGE AND REAL INCENTIVE TO DISCUSS THEM. 

I AGREE WITH THE COURT BELOW THAT THE STATE'S INTEREST IN ORDER AND
PRISON DISCIPLINE CANNOT JISTIFY ITS TOTAL BAN ON ALL MEDIA INTERVIEWS
WITH ANY INDIVIDUALLY DESIGNATED INMATE ON ANY MATTER WHATSOEVER.  SUCH
A COARSE ATTEMPT AT REGULATION IS PATENTLY UNCONSTITUTIONAL IN AN AREA
WHERE "(PRECISION OF REGULATION MUST BE THE TOUCHSTONE."  NAACP V.
BUTTON, SUPRA, AT 438; ELFBRANDT V. RUSSELL, 384 U. S. 11, 18.  I WOULD
AFFIRM THE DISTRICT COURT'S JUDGMENT IN THIS REGARD. 

        II 

IN NOS. 73 - 918 AND 73 - 1265, THE MEDIA CLAIM THAT THE STATE AND
FEDERAL PRISON REGULATIONS HERE, BY FLATLY PROHIBITING INTERVIEWS WITH
INMATES SELECTED BY THE PRESS, IMPINGE UPON THE FIRST AMENDMENT'S FREE
PRESS GUARANTEE, DIRECTLY PROTECTED AGAINST FEDERAL INFRINGEMENT AND
PROTECTED AGAINST STATE INFRINGEMENT BY THE FOURTEENTH AMENDMENT.  IN
REJECTING THE CLAIM, THE COURT NOTES THAT THE BAN ON ACCESS TO
PRISONERS APPLIES AS WELL TO THE GENERAL PUBLIC, AND IT HOLDS THAT
"NEWSMEN HAVE NO CONSTITUTIONAL RIGHT OF ACCESS TO PRISONS OR THEIR
INMATES BYOND THAT AFFORDED THE GENERAL PUBLIC."  ANTE, AT 834. 

IN DEALING WITH THE FREE PRESS GUARANTEE, IT IS IMPORTANT TO NOTE
THAT THE INTEREST IT PROTECTS IS NOT POSSESSED BY THE MEDIA
THEMSELVES.  IN ENJOINING ENFORCEMENT OF THE FEDERAL REGULATION IN NO.
73-1265, JUDGE GESELL DID NOT VINDICATE ANY RIGHT OF THE WASHINGTON
POST, BUT RATHER THE RIGHT OF THE PEOPLE, THE TRUE SOVEREIGN UNDER OUR
CONSTITUTIONAL SCHEME, TO GOVERN IN AN INFORMED MANNER.  "THE PRESS HAS
A PREFERRED POSITION IN OUR CONSTITUTIONAL SCHEME, NOT TO ENABLE IT TO
MAKE MONEY, NOT TO SET NEWSMEN APART AS A FAVORED CLASS, BUT TO BRING
FULFILLMENT TO THE PUBLIC'S RIGHT TO KNOW.  THE RIGHT TO KNOW IS
CRUCIAL TO THE GOVERNING POWERS OF THE PEOPLE."  BRANZBURG V. HAYES,
408 U.S. 665, 721 (DOUGLAS, J., DISSENTING).     PRISONS, LIKE ALL
OTHER PUBLIC INSTITUTIONS, ARE ULTIMATELY THE RESPONSIBILITY OF THE
POPULACE.  CRIME, LIKE THE ECONOMY, HEALTH, EDUCATION, DEFENSE, AND THE
LIKE, IS A MATTER OF GRAVE CONCERN IN OUR SOCIETY AND PEOPLE HAVE THE
RIGHT AND THE NECESSITY TO KNOW NOT ONLY OF THE INCIDENCE OF CRIME BUT
OF THE EFFECTIVENESS OF THE SYSTEM DESIGNED TO CONTROL IT.  "ON ANY
GIVEN DAY, APPROXIMATELY 1,500,000 PEOPLE ARE UNDER THE AUTHORITY OF
(FEDERAL, STATE AND LOCAL PRISON) SYSTEMS.  THE COST TO TAXPAYERS IS
OVER ONE BILLION DOLLARS ANNUALLY.  OF THOSE INDIVIDUALS SENTENCED TO
PRISON, 98% WILL RETURN TO SOCIETY."  /1/  THE PUBLIC'S INTEREST IN
BEING INFORMED ABOUT PRISONS IS THUS PARAMOUNT. 

AS WITH THE PRISONERS' FREE SPEECH CLAIM, NO ONE ASSERTS THAT THE
FREE PRESS RIGHT IS SUCH THAT THE AUTHORITIES ARE POWERLESS TO IMPOSE
REASONABLE REGULATIONS AS TO THE TIME, PLACE, AND MANNER OF INTERVIEWS
TO EFFECTUATE PRISON DISCIPLINE AND ORDER.  THE ONLY ISSUE HERE IS
WHETHER THE COMPLETE BAN ON INTERVIEWS WITH INMATES SELECTED BY THE
PRESS GOES BEYOND WHAT IS NECESSARY FOR THE PROTECTION OF THESE
INTERESTS AND INFRINGES UPON OUR CHERISHED RIGHT OF A FREE PRESS.  AS
THE COURT OF APPEALS NOTED IN NO. 73 - 1265:  "(WHILE WE DO NOT
QUESTION THAT THE CONCERNS VOICED BY THE BUREAU (OF PRISONS) ARE
LEGITIMATE INTERESTS THAT MERIT PROTECTION, WE MUST AGREE WITH THE
DISTRICT COURT THAT THEY DO NOT, INDIVIDUALLY OR IN TOTAL, JUSTIFY THE
SWEEPING ABSOLUTE BAN THAT THE BUREAU HAS CHOSEN TO IMPOSE."  161 U.S.
APP. D.C., AT 86, 494 F.2D, AT 1005. 

IT IS THUS NOT ENOUGH TO NOTE THAT THE PRESS--THE INSTITUTION WHICH
"(THE CONSTITUTION SPECIFICALLY SELECTED . . . TO PLAY AN IMPORTANT
ROLE IN THE DISCUSSION OF PUBLIC AFFAIRS"  /2/  --IS DENIED NO MORE
ACCESS TO THE PRISONS THAN IS DENIED THE PUBLIC GENERALLY.  THE
PROHIBITION OF VISITS BY THE PUBLIC HAS NO PRACTICAL EFFECT UPON THEIR
RIGHT TO KNOW BEYOND THAT ACHIEVED BY THE EXCLUSION OF THE PRESS.  THE
AVERAGE CITIZEN IS MOST UNLIKELY TO INFORM HIMSELF ABOUT THE OPERATION
OF THE PRISON SYSTEM BY REQUESTING AN INTERVIEW WITH A PARTICULAR
INMATE WITH WHOM HE HAS NO PRIOR RELATIONSHIP.  HE IS LIKELY INSTEAD,
IN A SOCIETY WHICH VALUES A FREE PRESS, TO RELY UPON THE MEDIA FOR
INFORMATION. 

IT IS INDEED IRONIC FOR THE COURT TO JUSTIFY THE EXCLUSION OF THE
PRESS BY NOTING THAT THE GOVERNMENT HAS GONE BEYOND THE PRESS AND
EXPANDED THE EXCLUSION TO INCLUDE THE PUBLIC.  COULD THE GOVERNMENT
DENY THE PRESS ACCESS TO ALL PUBLIC INSTITUTIONS AND PROHIBIT
INTERVIEWS WITH ALL GOVERNMENTAL EMPLOYEES?  COULD IT FIND
CONSTITUTIONAL FOOTING BY EXPANDING THE BAN TO DENY SUCH ACCESS TO
EVERYONE? 

I AGREE WITH THE COURTS BELOW IN NO. 73 - 1265 THAT THE ABSOLUTE BAN
ON PRESS INTERVIEWS WITH SPECIFICALLY DESIGNATED FEDERAL INMATES IS FAR
BROADER THAN IS NECESSARY TO PROTECT ANY LEGITIMATE GOVERNMENTAL
INTERESTS AND IS AN UNCONSTITUTIONAL INFRINGEMENT ON THE PUBLIC'S RIGHT
TO KNOW PROTECTED BY THE FREE PRESS GUARANTEE OF THE FIRST AMENDMENT. 
I WOULD AFFIRM THE JUDGMENT IN THIS REGARD.  SINCE THIS BASIC RIGHT IS
GUARANTEED AGAINST STATE INFRINGEMENT BY THE APPLICATION OF THE FIRST
AMENDMENT TO THE STATES THROUGH THE FOURTEENTH, /3/  CALIFORNIA'S
ABSOLUTE BAN CAN FARE NO BETTER.  I WOULD REVERSE THE DISTRICT COURT'S
REJECTION OF THIS CLAIM IN NO. 73 - 918. 

/1/  SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION
OF JUSTICE OF THE HOUSE COMMITTEE ON THE JUDICIARY, 93D CONG., 2D
SESS., REPORT ON THE INSPECTION OF FEDERAL FACILITIES AT LEAVENWORTH
PENITENTIARY AND THE MEDICAL CENTER FOR FEDERAL PRISONERS 2 (COMM.
PRINT 1974). 

/2/  MILLS V. ALABAMA, 384 U. S. 214, 219. 

/3/  "WHILE MR CHIEF JUSTICE HUGHES IN STROMBERG V. CALIFORNIA, 283
U. S. 359, STATED THAT THE FIRST AMENDMENT WAS APPLICABLE TO THE STATES
BY REASON OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH, IT HAS BECOME
CUSTOMARY TO REST ON THE BROADER FOUNDATION OF THE ENTIRE FOURTEENTH
AMENDMENT.  FREE SPEECH AND PRESS WITHIN THE MEANING OF THE FIRST
AMENDMENT IS, IN MY JUDGMENT, ONE OF THE PRE-EMINENT PRIVILEGES AND
IMMUNITIES OF ALL CITIZENS."  PROCUNIER V. MARTINEZ, 416 U.S. 396, 428
429 DOUGLAS, J., CONCURRING IN JUDGMENT). 
..END :










SAXBE V. WASHINGTON POST CO., 417 U. S. 843 


       SAXBE, ATTORNEY GENERAL, ET AL. V. WASHINGTON POST CO. ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 73 - 1265.  ARGUED APRIL 17, 1974--DECIDED JUNE 24,

           1974; 161 U.S. APP.D.C. 75, 494 F.2D 994, REVERSED AND

           REMANDED. 


    THE POLICY STATEMENT OF THE FEDERAL BUREAU OF PRISONS

  PROHIBITING PERSONAL INTERVIEWS BETWEEN NEWSMEN AND INDIVIDUALLY

  DESIGNATED INMATES OF FEDERAL MEDIUM SECURITY AND MAXIMUM

  SECURITY PRISONS DOES NOT ABRIDGE THE FREEDOM OF THE PRESS THAT

  THE FIRST AMENDMENT GUARANTEES, PELL V. PROCUNIER, ANTE, P. 817,

  SINCE IT "DOES NOT DENY THE PRESS ACCESS TO SOURCES OF

  INFORMATION AVAILABLE TO MEMBERS OF THE GENERAL PUBLIC," BUT IS

  MERELY A PARTICULARIZED APPLICATION OF THE GENERAL RULE THAT

  NOBODY MAY ENTER THE PRISON AND DESIGNATE AN INMATE WHOM HE WOULD

  LIKE TO VISIT, UNLESS THE PROSPECTIVE VISITOR IS A LAWYER,

  CLERGYMAN, RELATIVE, OR FRIEND OF THAT INMATE.  PP. 846 - 850. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

  DOUGLAS, J., FILED A DISSENTING OPINION, ANTE, P. 836.  POWELL,

  J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL,

  JJ., JOINED, POST, P. 850. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS, A MAJOR METROPOLITAN NEWSPAPER AND ONE OF ITS
REPORTERS, INITIATED THIS LITIGATION TO CHALLENGE THE CONSTITUTIONALITY
OF 4B (6) OF POLICY STATEMENT 1220.1A OF THE FEDERAL BUREAU OF
PRISONS.  /1/  AT THE TIME THAT THE CASE WAS IN THE DISTRICT COURT AND
THE COURT OF APPEALS, THIS REGULATION PROHIBITED ANY PERSONAL
INTERVIEWS BETWEEN NEWSMEN AND INDIVIDUALLY DESIGNATED FEDERAL PRISON
INMATES.  THE SOLICITOR GENERAL HAS INFORMED THE COURT THAT THE
REGULATION WAS RECENTLY AMENDED "TO PERMIT PRESS INTERVIEWS AT FEDERAL
PRISON INSTITUTIONS THAT CAN BE CHARACTERIZED AS MINIMUM SECURITY." 
/2/  THE GENERAL PROHIBITION OF PRESS INTERVIEWS WITH INMATES REMAINS
IN EFFECT, HOWEVER, IN THREE-QUARTERS OF THE FEDERAL PRISONS, I. E., IN
ALL MEDIUM-AND MAXIMUM-SECURITY INSTITUTIONS, INCLUDING THE TWO
INSTITUTIONS INVOLVED IN THIS CASE. 

IN MARCH 1972, THE RESPONDENTS REQUESTED PERMISSION FROM THE
PETITIONERS, THE OFFICIALS RESPONSIBLE FOR ADMINISTERING FEDERAL
PRISONS, TO CONDUCT SEVERAL INTERVIEWS WITH SPECIFIC INMATES IN THE
PRISONS AT LEWISBURG, PENNSYLVANIA, AND DANBURY, CONNECTICUT.  THE
PETITIONERS DENIED PERMISSION FOR SUCH INTERVIEWS ON THE AUTHORITY OF
POLICY STATEMENT 1220.1A.  THE RESPONDENTS THEREUPON COMMENCED THIS
SUIT TO CHALLENGE THESE DENIALS AND THE REGULATION ON WHICH THEY WERE
PREDICATED.  THEIR ESSENTIAL CONTENTION WAS THAT THE PROHIBITION OF ALL
PRESS INTERVIEWS WITH PRISON INMATES ABRIDGES THE PROTECTION THAT THE
FIRST AMENDMENT ACCORDS THE NEWSGATHEING ACTIVITY OF A FREE PRESS.  THE
DISTRICT COURT AGREED WITH THIS CONTENTION AND HELD THAT THE POLICY
STATEMENT, INSOFAR AS IT TOTALLY PROHIBITED ALL PRESS INTERVIEWS AT THE
INSTITUTIONS INVOLVED, VIOLATED THE FIRST AMENDMENT.  ALTHOUGH THE
COURT ACKNOWLEDGED THAT INSTITUTIONAL CONSIDERATIONS COULD JUSTIFY THE
PROHIBITION OF SOME PRESS-INMATE INTERVIEWS, THE DISTRICT COURT ORDERED
THE PETITIONERS TO CEASE ENFORCING THE BLANKET PROHIBITION OF ALL SUCH
INTERVIEWS AND, PENDING MODIFICATION OF THE POLICY STATEMENT, TO
CONSIDER INTERVIEW REQUESTS ON AN INDIVIDUAL BASIS AND "TO WITHHOLD
PERMISSION TO INTERVIEW . . . ONLY WHERE DEMONSTRABLE ADMINISTRATIVE OR
DISCIPLINARY CONSIDERATIONS DOMINATE."  357 F. SUPP. 770, 775 (DC
1972). 

THE PETITIONERS APPEALED THE DISTRICT COURT'S JUDGMENT TO THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  WE STAYED THE
DISTRICT COURT'S ORDER PENDING THE COMPLETION OF THAT APPEAL, SUB NOM.
KLEINDIENST V. WASHINGTON POST CO., 406 U. S. 912 (1972).  THE FIRST
TIME THIS CASE WAS BEFORE IT, THE COURT OF APPEALS REMANDED IT TO THE
DISTRICT COURT FOR ADDITIONAL FINDINGS OF FACT AND PARTICULARLY FOR
RECONSIDERATION IN LIGHT OF THIS COURT'S INTERVENING DECISION IN
BRANZBURG V. HAYES, 408 U. S. 665 (1972).  155 U. S. APP. D. C. 283,
477 F.2D 11668 (1972).  ON REMAND, THE DISTRICT COURT CONDUCTED FURTHER
EVIDENTIARY HEARINGS, SUPPLEMENTED ITS FINDINGS OF FACT, AND
RECONSIDERED ITS CONCLUSIONS OF LAW IN LIGHT OF BRANZBURG AND OTHER
RECENT DECISIONS THAT WERE URGED UPON IT.  IN DUE COURSE, THE COURT
REAFFIRMED ITS ORIGINAL DECISION, 357 F. SUPP. 779 (DC 1972), AND THE
PETITIONERS AGAIN APPEALED TO THE COURT OF APPEALS. 

THE COURT OF APPEALS AFFIRMED THE JUDGMENT OF THE DISTRICT COURT. 
IT HELD THAT PRESS INTERVIEWS WITH PRISON INMATES COUOLD NOT BE TOTALLY
PROHIBITED AS THE POLICY STATEMENT PURPORTED TO DO, BUT MAY "BE DENIED
ONLY WHERE IT IS THE JUDGMENT OF THE ADMINISTRATOR DIRECTLY CONCERNED,
BASED ON EITHER THE DEMONSTRATED BEHAVIOR OF THE INMATE, OR SPECIAL
CONDITIONS EXISTING AT THE INSTITUTION AT THE TIME THE INTERVIEW IS
REQUESTED, OR BOTH, THAT THE INTERVIEW PRESENTS A SERIOUS RISK OF
ADMINISTRATIVE OR DISCIPLINARY PROBLEMS."  161 U.S. APP. D.C. 75, 87
88, 494 F.2D 994, 1006 - 1007 (1974).  ANY BLANKET PROHIBITION OF SUCH
FACE-TO-FACE INTERVIEWS WAS HELD TO ABRIDGE THE FIRST AMENDMENT'S
PROTECTION OF PRESS FREEDOM.  BECAUSE OF THE IMPORTANT CONSTITUTIONAL
QUESTION INVOLVED, AND BECAUSE OF AN APPARENT CONFLICT IN APPROACH TO
THE QUESTION BETWEEN THE DISTRICT OF COLUMBIA CIRCUIT AND THE NINTH
CIRCUIT, /3/  WE GRANTED CERTIORATRI.  415 U. S. 956 (1974). 

THE POLICIES OF THE FEDERAL BUREAU OF PRISONS REGARDING VISITATIONS
TO PRISON INMATES DO NOT DIFFER SIGNIFICANTLY FROM THE CALIFORNIA
POLICIES CONSIDERED IN PELL V. PROCUNIER, ANTE, P. 817.  AS THE COURT
OF APPEALS NOTED, "INMATES' FAMILIES, THEIR ATTORNEYS, AND RELIGIOUS
COUNSEL ARE ACCORDED LIBERAL VISITATION PRIVILEGES.  EVEN FRIENDS OF
INMATES ARE ALLOWED TO VISIT, ALTHOUGH THEIR PRIVILEGES APPEAR TO BE
SOMEWHAT MORE LIMITED."  161 U.S. APP. D.C., AT 78, 494 F.2D, AT 997. 
OTHER THAN MEMBERS OF THESE LIMITED GROUPS WITH PERSONAL AND
PROFESSIONAL TIES TO THE INMATES, MEMBERS OF THE GENERAL PUBLIC ARE NOT
PERMITTED UNDER THE BUREAU'S POLICY TO ENTER THE PRISONS AND INTERVIEW
CONSENTING INMATES.  THIS POLICY IS APPLIED WITH AN EVEN HAND TO ALL
PROSPECTIVE VISITORS, INCLUDING NEWSMEN, WHO, LIKE OTHER MEMBERS OF THE
PUBLIC, MAY ENTER THE PRISONS TO VISIT FRIENDS OR FAMILY MEMBERS.  BUT,
AGAIN LIKE MEMBERS OF THE GENERAL PUBLIC, THEY MAY NOT ENTER THE PRISON
AND INSIST ON VISITING AN INMATE WITH WHOM THEY HAVE NO SUCH
RELATIONSHIP.  THERE IS NO INDICATION ON THIS RECORD THAT POLICY
STATEMENT 1220.1A HAS BEEN INTERPRETED OR APPLIED TO PROHIBIT A PERSON,
WHO IS OTHERWISE ELIGIBLE TO VISIT AND INTERVIEW AN INMATE, FROM DOING
SO MERELY BECAUSE HE IS A MEMBER OF THE PRESS.  /4/ 

EXCEPT FOR THE LIMITATION IN POLICY STATEMENT 1220.1A ON FACE-TO
FACE PRESS-INMATE INTERVIEWS, MEMBERS OF THE PRESS ARE ACCORDED
SUBSTANTIAL ACCESS TO THE FEDERAL PRISONS IN ORDER TO OBSERVE AND
REPORT THE CONDITIONS THEY FIND THERE.  INDEED, JOURNALIST ARE GIVEN
ACCESS TO THE PRISONS AND TO PRISON INMATES THAT IN SIGNIFICANT
RESPECTS EXCEEDS THAT AFFORDED TO MEMBERS OF THE GENERAL PUBLIC.  FOR
EXAMPLE, POLICY STATEMENT 1220.1A PERMITS PRESS REPRESENTATIVES TO TOUR
THE PRISONS AND TO PHOTOGRAPH ANY PRISON FACILITIES.  /5/  DURING SUCH
TOURS A NEWSMAN IS PERMITTED TO CONDUCT BRIEF INTERVIEWS WITH ANY
INMATES HE MIGHT ENCOUNTER.  /6/  IN ADDITON, NEWSMEN AND INMATES ARE
PERMITTED VIRTUALLY UNLIMITED WRITTEN CORRESPONDENCE WITH EACH OTHER. 
/7/  OUTGOING CORRESPONDENCE FROM INMATES TO PRESS REPRESENTATIVES IS
NEITHER CENSORED NOR INSPECTED.  INCOMING MAIL FROM PRESS
REPRESENTATIVES IS INSPECTED ONLY FOR CONTRABAND OR STATEMENTS INCITING
ILLEGAL ACTION.  MOREOVER, PRISON OFFICIALS ARE AVAILABLE TO THE PRESS
AND ARE REQUIRED BY POLICY STATEMENT 1220.1A TO "GIVE ALL POSSIBLE
ASSISTANCE" TO PRESS REPRESENTATIVES "IN PROVIDING BACKGROUND AND A
SPECIFIC REPORT" CONCERNING ANY INMATE COMPLAINTS.  /8/ 

THE RESPONDENTS HAVE ALSO CONCEDED IN THEIR BRIEF THAT POLICY
STATMENT 1220.1A "HAS BEEN INTERPRETED BY THE BUREAU TO PERMIT A
NEWSMAN TO INTERVIEW A RANDOMLY SELECTED GROUP OF INMATES."  AS A
RESULT, THE REPORTER RESPONDENT IN THIS CASE WAS PERMITTED TO INTERVIEW
A RANDOMLY SELECTED GROUP OF INMATES AT THE LEWISBURG PRISON.  FINALLY,
IN LIGHT OF THE CONSTANT TURNOVER IN THE PRISON POPULATION, IT IS CLEAR
THAT THERE IS ALWAYS A LARGE GROUP OF RECENTLY RELEASED PRISONERS WHO
ARE AVAILABLE TO BOTH THE PRESS AND THE GENERAL PUBLIC AS A SOURCE OF
INFORMATION ABOUT CONDITIONS IN THE FEDERAL PRISONS.  /9/ 

THUS, IT IS CLEAR THAT POLICY STATEMENT 1220.1A IS NOT PART OF ANY
ATTEMPT BY THE FEDERAL BUREAU OF PRISONS TO CONCEAL FROM THE PUBLIC THE
CONDITIONS PREVAILING IN FEDERAL PRISONS.  THIS LIMITATION ON
PREARRANGED PRESS INTERVIEWS WITH INDIVIDUALLY DESIGNATED INMATES WAS
MOTIVATED BY THE SAME DISCIPLINARY AND ADMINISTRATIVE CONSIDERATIONS
THAT UNDERLIE 115.071 OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS
MANUAL, WHICH WE CONSIDERED IN PELL V. PROCUNIER AND PROCUNIER V.
HILLERY, ANTE, P. 817.  THE EXPERIENCE OF THE BUREAU ACCORDS WITH THAT
OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND SUGGESTS THAT THE
INTEREST OF THE PRESS IS OFTEN "CONCENTRATED ON A RELATIVELY SMALL
NUMBER OF INMATES WHO, AS A RESULT, (BECOME) VIRTUAL 'PUBLIC FIGURES'
WITHIN THE PRISON SOCIETY AND GAIN) A DISPROPORTIONATE DEGREE OF
NOTORIETY AND INFLUENCE AMONG THEIR FELLOW INMATES."  PELL, ANTE, AT
831 - 832.  AS A RESULT THOSE INMATES WHO ARE CONSPICUOUSLY PUBLICIZED
BECAUSE OF THEIR REPEATED CONTACTS WITH THE PRESS TEND TO BECOME THE
SOURCE OF SUBSTANTIAL DISCIPLINARY PROBLEMS THAT CAN ENGULF A LARGE
PORTION OF THE POPULATION AT A PRISON. 

THE DISTRICT COURT AND THE COURT OF APPEALS SOUGHT TO MEET THIS
PROBLEM BY DECREEING A SELECTIVE POLICY WHEREBY PRISON OFFICIALS COULD
DENY INTERVIEWS LIKELY TO LEAD TO DISCIPLINARY PROBLEMS.  IN THE EXPERT
JUDGMENT OF THE PETITIONERS, HOWEVER, SUCH A SELECTIVE POLICY WOULD
SPAWN SERIOUS DISCIPLINE AND MORALE PROBLEMS OF ITS OWN BY ENGENDERING
HOSTILITY AND RESENTMENT AMONG INMATES WHO WERE REFUSED INTERVIEW
PRIVILEGES GRANTED TO THEIR FELLOWS.  THE DIRECTOR OF THE BUREAU
TESTIFIED THAT "ONE OF THE VERY BASIC TENETS OF SOUND CORRECTIONAL
ADMINISTRATION" IS "TO TREAT ALL INMATES INCARCERATED IN (THE)
INSTITUTIONS, AS FAR AS POSSIBLE, EQUALLY."  THIS EXPERT AND
PROFESSIONAL JUDGMENT IS, OF COURSE, ENTITLED TO GREAT DEFERENCE. 

IN THIS CASE, HOWEVER, IT IS UNNECESSARY TO ENGAGE IN ANY DELICATE
BALANCING OF SUCH PENAL CONSIDERATIONS AGAINST THE LEGITIMATE DEMANDS
OF THE FIRST AMENDMENT.  FOR IT IS APPARENT THAT THE SOLE LIMITATION
IMPOSED ON NEWSGATHERING BY POLICY STATEMENT 1220.1A IS NO MORE THAN A
PARTICULARIZED APPLICATION OF THE GENERAL RULE THAT NOBODY MAY ENTER
THE PRISON AND DESIGNATE AN INMATE WHOM HE WOULD LIKE TO VISIT, UNLESS
THE PROSPECTIVE VISITOR IS A LAWYER, CLERGYMAN, RELATIVE, OR FRIEND OF
THAT INMATE.  THIS LIMITATION ON VISITATIONS IS JUSTIFIED BY WHAT THE
COURT OF APPEALS ACKNOWLEDGED AS "THE TRUISM THAT PRISONS ARE
INSTITUTIONS WHERE PUBLIC ACCESS IS GENERALLY LIMITED."  161 U.S. APP.
D.C., AT 80, 494 F.2D, AT 999.  SEE ADDERLEY V. FLORIDA, 385 U.S. 39,
41 (1966).  IN THIS REGARD, THE BUREAU OF PRISONS VISITATION POLICY
DOES NOT PLACE THE PRESS IN ANY LESS ADVANTAGEOUS POSITION THAN THE
PUBLIC GENERALLY.  INDEED, THE TOTAL ACCESS TO FEDERAL PRISONS AND
PRISON INMATES THAT THE BUREAU OF PRISONS ACCORDS TO THE PRESS FAR
SURPASSES THAT AVAILABLE TO OTHER MEMBERS OF THE PUBLIC. 

WE FIND THIS CASE CONSTITUTIONALLY INDISTINGUISHABLE FROM PELL V.
PROCUNIER, ANTE, P. 817, AND THUS FULLY CONTROLLED BY THE HOLDING IN
THAT CASE.  "(NEWSMEN HAVE NO CONSTITUTIONAL RIGHT OF ACCESS TO PRISONS
OR THEIR INMATES BEYOND THAT AFFORDED THE GENERAL PUBLIC."  ID., AT
834.  THE PROPOSITION "THAT THE CONSTITUTION IMPOSES UPON GOVERNMENT
THE AFFIRMATIVE DUTY TO MAKE AVAILABLE TO JOURNALISTS SOURCES OF
INFORMATION NOT AVAILABLE TO MEMBERS OF THE PUBLIC GENERALLY . . .
FINDS NO SUPPORT IN THE WORDS OF THE CONSTITUTION OR IN ANY DECISION OF
THIS COURT."  ID., AT 834-835.  THUS, SINCE POLICY STATEMENT 1220.1A
"DOES NOT DENY THE PRESS ACCESS TO SOURCES OF INFORMATION AVAILABLE TO
MEMBERS OF THE GENERAL PUBLIC," ID., AT 835, WE HOLD THAT IT DOES NOT
ABRIDGE THE FREEDOM THAT THE FIRST AMENDMENT GUARANTEES.  ACCORDINGLY,
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

             IT IS SO ORDERED. 

/1/  "PRESS REPRESENTATIVES WILL NOT BE PERMITTED TO INTERVIEW
INDIVIDUAL INMATES.  THIS RULE SHALL APPLY EVEN WHERE THE INMATE
REQUESTS OR SEEKS AN INTERVIEW.  HOWEVER, CONVERSATION MAY BE PERMITTED
WITH INMATES WHOSE IDENTITY IS NOT TO BE MADE PUBLIC, IF IT IS LIMITED
TO THE DISCUSSION OF INSTITUTIONAL FACILITIES, PROGRAMS AND
ACTIVITIES." 

/2/  LETTER OF APR. 16, 1974, TO CLERK, SUPREME COURT OF THE UNITED
STATES, PRESENTLY ON FILE WITH THE CLERK. 

/3/  SEE SEATTLE-TACOMA NEWSPAPER GUILD V. PARKER, 480 F.2D 1062,
1066 - 1067 (1973).  SEE ALSO HILLERY V. PROCUNIER, 364 F. SUPP. 196,
199 - 200 (ND CAL 1973). 

/4/  THE SOLICITOR GENERAL'S BRIEF REPRESENTS THAT "(MEMBERS OF THE
PRESS, LIKE THE PUBLIC GENERALLY, MAY VISIT THE PRISON TO SEE FRIENDS
THERE."  PRESUMABLY, THE SAME IS TRUE WITH RESPECT TO FAMILY MEMBERS. 
THE RESPONDENTS HAVE NOT DISPUTED THIS REPRESENTATION. 

/5/  POLICY STATMENT 1220.1A 4B (5) AND (7). 

/6/  SEE ID., 4B (6) SET OUT IN N. 1, SUPRA.  THE NEWSMAN IS
REQUESTED NOT TO REVEAL THE IDENTITY OF THE INMATE, AND THE
CONVERSATION IS TO BE LIMITED TO INSTITUTIONAL FACILITIES, PROGRAMS,
AND ACTIVITIES. 

/7/  ID., 4B (1) AND (2). 

/8/  ID., 4B (12). 

/9/  THE SOLICITOR GENERAL'S BRIEF INFORMS US THAT "APPROXIMATELY
ONE-HALF OF THE PRISON POPULATION ON ANY ONE DAY WILL BE RELEASED
WITHIN THE FOLLOWING 12 MONTHS.  THE AVERAGE POPULATION IS 23,000, OF
WHOM APPROXIMATELY 12,000 ARE RELEASED EACH YEAR." 

(FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 836.) 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE COURT TODAY UPHOLDS THE AUTHORITY OF THE BUREAU OF PRISONS TO
PROMULGATE AND ENFORCE AN ABSOLUTE BAN AGAINST PERSONAL INTERVIEWS OF
PRISON INMATES BY REPRESENTATIVES OF THE NEWS MEDIA.  /1/  IN MY VIEW
THE INTERVIEW BAN IMPERMISSIBLY BURDENS FIRST AMENDMENT FREEDOMS.  MY
ANALYSIS PROCEEDS AS FOLLOWS.  PART I ADDRESSES THE NATURE AND EFFECT
OF THE BUREAU'S POLICY.  PART II CONCERNS THE CONSTITUTIONAL
UNDERPINNINGS OF RESPONDENTS'  ATTACK ON THAT POLICY.  PART III
CONSIDERS THE BUREAU'S JUSTIFICATIONS FOR AN ABSOLUTE INTERVIEW BAN IN
LIGHT OF THE APPROPRIATE STANDARD OF FIRST AMENDMENT REVIEW, AND PART
IV SURVEYS SOME OF THE FACTORS THAT THE BUREAU MAY CONSIDER IN
FORMULATING A CONSTITUTIONALLY ACCEPTABLE INTERVIEW POLICY.  PART V
CONTAINS SOME CONCLUDING REMARKS.              I     THE BAN AGAINST
PRESS INTERVIEWS IS NOT OF ANY GENERAL NEWS BLACKOUT IN THE FEDERAL
PRISONS.  BUREAU OF PRISONS POLCIY STATEMENT 1220.1A ESTABLISHES THE
OFFICIAL POLICY REGARDING PRISONER-PRESS COMMUNICATIONS, AND THAT
POLICY IN MANY RESPECTS COMMENDABLY FACILITATES PUBLIC DISSEMINATION OF
INFORMATION ABOUT FEDERAL PENAL INSTITUTIONS.  INMATE LETTERS ADDRESSED
TO MEMBERS OF THE NEWS MEDIA ARE NEITHER OPENED NOR CENSORED, AND
INCOMING MAIL FROM PRESS REPRESENTATIVES IS INSPECTED ONLY FOR
CONTRABAND AND FOR CONTENT LIKELY TO INCITE ILLEGAL CONDUCT. 
FURTHERMORE, THE BUREAU OFFICIALLY ENCOURAGES NEWSMEN TO VISIT FEDERAL
PRISONS IN ORDER TO REPORT ON CORRECTIONAL FACILITIES AND PROGRAMS. 

THE SPECIFIC ISSUE IN THIS CASE IS THE CONSTITUTIONALITY OF THE
BUREAU'S BAN AGAINST PRISONER-PRESS INTERVIEWS.  THAT POLICY IS SET
FORTH IN 4B (6) OF THE POLICY STATEMENT: 

"PRESS REPRESENTATIVES WILL NOT BE PREMITTED TO INTERVIEW INDIVIDUAL
INMATES.  THIS RULE SHALL APPLY EVEN WHERE THE INMATE REQUESTS OR SEEKS
AN INTERVIEW.  HOWEVER, A CONVERSATION MAY BE PERMITTED WITH INMATES
WHOSE INDENTITY IS NOT TO BE MADE PUBLIC, IF IT IS LIMITED TO THE
DISCUSSION OF INSTITUTIONAL FACILITIES, PROGRAMS AND ACTIVITIES."  THE
POLICY STATEMENT DOES NOT EXPLICATE THE DISTINCTION BETWEEN AN
"INTERVIEW" AND A "CONVERSATION," BUT THAT SUBJECT WAS EXPLORED IN
EVIDENTIARY PROCEEDINGS BEFORE THE DISTRICT COURT.  THE COURT FOUND
THAT A "CONVERSATION"  GENERALLY OCCURS WHEN A NEWSMAN IS TAKING A
SUPERVISED TOUR OF AN INSTITUTION AND STOPS TO ASK AN INMATE ABOUT
PRISON CONDITIONS AND THE LIKE.  IT IS A BRIEF, SPONTANEOUS DISCUSSION
WITH A RANDOMLY ENCOUNTERED INMATE ON SUBJECTS LIMITED TO
"INSTITUTIONAL FACILITIES, PROGRAMS, AND ACTIVITIES."  AN "INTERVIEW,"
BY CONTRAST, IS A PREARRANGED PRIVATE MEETING WITH A SPECIFICALLY
DESIGNATED INMATE.  IT IS UNRESTRICTED AS TO SUBJECT MATTER AND LASTS A
SUFFICIENT TIME TO PERMIT FULL DISCUSSION.  /2/ 

THE BUREAU'S PROHIBITION AGAINST PRESS INTERVIEWS IS ABSOLUTE IN
NATURE.  IT APPLIES WITHOUT REGARD TO THE RECORD AND CHARACTERISTICS OF
THE PARTICULAR INMATE INVOLVED, THE PURPOSE OF THE INTERVIEW, OR THE
CONDITIONS THEN PREVAILING AT THE INSTITUTION IN QUESTION.  AT THE TIME
OF THE DECISIONS OF THE DISTRICT COURT AND THE COURT OF APPEALS, THE
INTERVIEW BAN APPLIED WITH EQUAL RIGOR TO EVERY CORRECTIONAL FACILITY
ADMINISTERED BY THE BUREAU, COMMUNITY TREATMENT CENTERS AS WELL AS
MAJOR PENITENTIARIES.  BY LETTER DATED APRIL 16, 1974, THE SOLICITOR
GENERAL INFORMED US THAT THE BUREAU SUBSEQUENTLY MODIFIED ITS POLICY TO
EXEMPT MINIMUM SECURITY FACILITIES FROM THE ABSOLUTE PROHIBITION OF
PRESS INTERVIEWS.  THIS CHANGE AFFECTS APPROXIMATELY ONE-QUARTER OF THE
INMATE POPULATION OF THE FEDERAL PRISONS.  FOR THE REMAINDER, THE
BUREAU INTENDS TO CONTINUE ITS ESTABLISHED POLICY. 

IN ITS ORDER REMANDING THE CASE FOR RECONSIDERATION IN LIGHT OF
BRANZBURG V. HAYES, 408 U. S. 665 (1972), THE COURT OF APPEALS DIRECTED
THE DISTRICT COURT TO DETERMINE THE "EXTENT TO WHICH THE ACCURATE AND
EFFECTIVE REPORTING OF NEWS HAS A CRITICAL DEPENDENCE UPON THE
OPPORTUNITY FOR PRIVATE PERSONAL INTERVIEWS."  155 U. S. APP. D. C.
283, 284, 477 F.2D 1168, 1169 (1972).  THE DISTRICT COURT HELD AN
EVIDENTIARY HEARING ON THIS SUBJECT AND MADE SPECIFIC FINDINGS OF
FACT.  357 F. SUPP. 779 (DC 1972).  THANKS TO THIS SPECIAL EFFORT BY
THE COURT OF APPEALS AND THE DISTRICT COURT, WE HAVE AN UNUSUALLY
DETAILED AND INFORMATIVE ACCOUNT OF THE EFFECT OF THE INTERVIEW BAN ON
PRISONER-PRESS COMMUNICATIONS.  /3/ 

THE DISTRICT COURT RECEIVED TESTIMONY ON THIS POINT FROM SIX
KNOWLEDGEABLE PERSONS.  /4/  ALL AGREED THAT PERSONAL INTERVIEWS ARE
CRUCIAL TO EFFECTIVE REPORTING IN THE PRISON CONTEXT.  A NEWSMAN
DEPENDS ON INTERVIEWS IN MUCH THE SAME WAY THAT A TRIAL ATTORNEY RELIES
ON CROSS-EXAMINATION.  ONLY IN FACE-TO-FACE DISCUSSION CAN A REPORTER
PUT A QUESTION TO AN INMATE AND RESPOND TO HIS ANSWER WITH AN IMMEDIATE
FOLLOW-UP QUESTION.  ONLY IN AN INTERVIEW CAN THE REPORTER PURSUE A
PARTICULAR LINE OF INQUIRY TO A SATISFACTORY RESOLUTION OR CONFRONT AN
INMATE WITH DISCREPANCIES OR APPARENT INCONSISTENCIES IN HIS STORY. 
WITHOUT A PERSONAL INTERVIEW A REPORTER IS OFTEN AT A LOSS TO DETERMINE
THE HONESTY OF HIS INFORMANT OR THE ACCURACY OF IN INFORMATION
RECEIVED.  /5/  THIS IS PARICULARLY TRUE IN THE PRISON ENVIRONMENT,
WHERE THE SOURCES OF INFORMATION ARE UNLIKELY TO BE WELL KNOWN TO
NEWSMEN OR TO HAVE ESTABLISHED ANY INDEPENDENT BASIS FOR ASSESSING
CREDIBILITY.  CONSEQUENTLY, ETHICAL NEWSMEN ARE RELUCTANT TO PUBLISH A
STORY WITHOUT AN OPPORTUNITY THROUGH FACE-TO-FACE DISCUSSION TO
EVALUATE THE VERACITY AND RELIABILITY OF ITS SOURCE.  THOSE WHO DO
PUBLISH WITHOUT INTERVIEWS ARE LIKELY TO PRINT INACCURATE, INCOMPLETE,
AND SOMETIMES JAUNDICED NEWS ITEMS.  THE DETAILED TESTIMONY ON THIS
POINT LED THE DISTRICT COURT TO FIND AS A FACT THAT THE ABSOLUTE
INTERVIEW BAN PRECLUDES ACCURATE AND EFFECTIVE REPORTING ON PRISON
CONDITIONS AND INMATE GRIEVANCES. 

THE DISTRICT COURT ALSO FOUND THAT THE ALTERNATIVE AVENUES OF
PRISONER-PRESS COMMUNICATION ALLOWED BY THE POLICY STATEMENT, WHETHER
CONSIDERED SINGLY OR IN AGGREGATION, ARE INSUFFICIENT TO COMPENSATE FOR
THE PROHIBITION OF PERSONAL INTERVIEWS.  FOR THE REASONS STATED ABOVE,
CORRESPONDENCE IS DECIDEDLY INFERIOR TO FACE-TO-FACE DISCUSSION AS A
MEANS OF OBTAINING RELIABLE INFORMATION ABOUT PRISON CONDITIONS AND
INMATE GRIEVANCES.  IN ADDION, THE PREVALENCE OF FUNCTIONAL ILLITERACY
AMONG THE INMATE POPULATION POSES A SERIOUS DIFFICULTY; MANY PRISONERS
ARE SIMPLY INCAPABLE OF COMMUNICATING EFFECTIVELY IN WRITING. 

RANDOM CONVERSATIONS DURING SUPERVISED TOURS OF PRISON FACILITIES
ARE ALSO NO SUBSTITUTE FOR PERSONAL INTERVIEWS WITH DESIGNATED
INMATES.  THE CONVERSATIONS ALLOWED BY THE POLICY STATEMENT ARE
RESTRICTED IN BOTH DURATION AND PERMISSIBLE SUBJECT MATTER. 
FURTHERMORE, NOT EVERY INMATE IS EQUALLY QUALIFIED TO SPEAK ON EVERY
SUBJECT.  IF A REPORTER IS INVESTIGATING A PARTICULAR INCIDENT, THE
OPPORTUNITY TO CONVERSE WITH INMATES WHO WERE NOT PRESENT IS OF LITTLE
CONSEQUENCE.  MOREOVER, THE CONVERSATIONS ASSOCIATED WITH GUIDED TOURS
ARE OFTEN HELD IN THE PRESENCE OF SEVERAL INMATES, A FACTOR LIKELY TO
RESULT IN DISTORTION OF THE INFORMATION OBTAINED.  /6/  THE DISTRICT
COURT RECEIVED DETAILED TESTIMONY CONCERNING THE KINDS OF INFORMATION
THAT CAN ONLY BE OBTAINED THROUGH PERSONAL INTERVIEWS OF INDIVIDUAL
INMATE. 

ON THE BASIS OF THIS AND OTHER EVIDENCE, THE DISTRICT COURT FOUND
THAT PERSONAL INTERVIEWS ARE ESSENTIAL TO ACCURATE AND EFFECTIVE
REPORTING IN THE PRISON ENVIRONMENT.  THE COURT OF APPEALS ENDORSED
THAT CONCLUSION, NOTING THAT THE TRIAL COURT'S FINDINGS OF FACT ON THIS
ISSUE "ARE SUPPORTED BY A SUBSTANTIAL BODY OF EVIDENCE OF RECORD, AND
INDEED APPEAR TO BE UNCONTRADICTED."  161 U.S. APP. D.C., AT 82, 494
F.2D, AT 1001.  THE GOVERNMENT DOES NOT SERIOUSLY ATTACK THIS
CONCLUSION.  INSTEAD, IT CONTENDS THAT THE EFFECT OF THE BUREAU'S
INTERVIEW BAN ON PRISONER-PRESS COMMUNICATIONS RAISES NO CLAIM OF
CONSTITUTIONAL DIMENSIONS.  IT IS TO THAT QUESTION THAT I NOW TURN. 

        II 

RESPONDENTS ASSERT A CONSTITUTIONAL RIGHT TO GATHER NEWS.  IN THE
LANGUAGE OF THE COURT OF APPEALS, THEY CLAIM A RIGHT OF ACCESS BY THE
PRESS TO NEWSWORTHY EVENTS.  HOWEVER CHARACTERIZED, THE GIST OF THE
ARGUMENT IS THAT THE CONSTITUTIONAL GUARANTEE OF A FREE PRESS MAY BE
RENDERED INEFFECTIVE BY EXCESSIVE RESTRAINTS ON ACCESS TO INFORMATION
AND THEREFORE THAT THE GOVERNMENT MAY NOT ENFORCE SUCH RESTRICTIONS
ABSENT SOME SUBSTANTIAL JUSTIFICATION FOR DOING SO.  IN OTHER WORDS,
RESPONDENTS CONTEND THAT THE FIRST AMENDMENT PROTECTS BOTH THE
DISSEMINATION OF NEWS AND THE ANTECEDENT ACTIVITY OF OBTAINING THE
INFORMATION THAT BECOMES NEWS. 

THE COURT REJECTS THIS CLAIM ON THE GROUND THAT "NEWSMEN HAVE NO
SONSTITUTIONAL RIGHT OF ACCESS TO PRISONS OR THEIR INMATES BEYOND THAT
AFFORDED THE GENERAL PUBLIC."  PELL V. PROCUNIER, ANTE, AT 834.  IT IS
SAID THAT FIRST AMENDMENT PROTECTIONS FOR NEWSGATHERING BY THE PRESS
REACH ONLY SO FAR AS THE OPPORTUNITIES AVAILABLE FOR THE ORDINARY
CITIZEN TO HAVE ACCESS TO THE SOURCE OF NEWS.  BECAUSE THE BUREAU OF
PRISONS DOES NOT SPECIFICALLY DISCRIMINATE AGAINST THE NEWS MEDIA, ITS
ABSOLUTE PROHIBITION OF PRISONER-PRESS INTERVIEWS IS NOT SUSCEPTIBLE TO
CONSTITUTIONAL ATTACK.  IN THE COURT'S VIEW, THIS IS TRUE DESPITE THE
FACTUAL SHOWING THAT THE INTERVIEW BAN PRECLUDES EFFECTIVE REPORTING ON
PRISON CONDITIONS AND INMATE GRIEVANCES.  FROM ALL THAT APPEARS IN THE
COURT'S OPINION, ONE WOULD THINK THAT ANY GOVERNMENTAL RESTRICTION ON
ACCESS TO INFORMATION, NO MATTER HOW SEVERE, WOULD CONSTITUTIONALLY
ACCEPTABLE TO THE MAJORITY SO LONG AS IT DOES NOT SINGLE OUT THE MEDIA
FOR SPECIAL DISABILITIES NOT APPLICABLE TO THE PUBLIC AT LARGE. 

I AGREE, OF COURSE, THAT NEITHER ANY NEWS ORGANIZATION NOR REPORTERS
AS INDIVIDUALS HAVE CONSTITUTIONAL RIGHTS SUPERIOR TO THOSE ENJOYED BY
ORDINARY CITIZENS.  THE GUARANTEES OF THE FIRST AMENDMENT BROADLY
SECURE THE RIGHTS OF EVERY CITIZEN; THEY DO NOT CREATE SPECIAL
PRIVILEGES FOR PARTICULAR GROUPS OR INDIVIDUALS.  FOR ME, AT LEAST, IT
IS CLEAR THAT PERSONS WHO BECOME JOURNALISTS ACQUIRE THEREBY NO SPECIAL
IMMUNITY FROM GOVERNMENTAL REGULATION.  TO THIS EXTENT I AGREE WITH THE
MAJORITY.  BUT I CANNOT FOLLOW THE COURT INCONCLUDING THAT ANY
GOVERNMENTAL RESTRICTION ON PRESS ACCESS TO INFORMATION, SO LONG AS IT
IS NONDISCRIMINATORY, FALLS OUTSIDE THE PURVIEW OF FIRST AMENDMENT
CONCERN. 

THE COURT PRINCIPALLY RELIES ON TWO PRECEDENTS.  IN ZEMEL V. RUSK,
381 U. S. 1 (1965), THE COURT REJECTED A UNITED STATES CITIZEN'S
CONTENTION THAT HE HAD A FIRST AMENDMENT RIGHT TO VISIT CUBA IN ORDER
TO INFORM HIMSELF OF THE CONDITIONS THERE.  THE MORE RECENT AUTHORITY
IS BRANZBURY V. HAYES, 408 U. S. 665 (1972), WHERE WE CONSIDERED THE
ASSERTION BY NEWSMEN OF A QUALIFIED FIRST AMENDMENT RIGHT TO REFUSE TO
REVEAL THEIR CONFIDENTIAL SOURCES OR THE INFORMATION OBTAINED FROM THEM
TO GRAND JURIES.  THE COURT REJECTED THIS CLAIM, PRIMARILY ON THE
GROUND THAT THE LARGELY SPECULATIVE PUBLIC INTEREST "IN POSSIBLE FUTURE
NEWS ABOUT CRIME FROM UNDISCLOSED, UNVERIFIED SOURCES" COULD NOT
OVERRIDE THE COMPETING INTEREST "IN PURSUING AND PROSECUTING THOSE
CRIMES REPORTED TO THE PRESS BY INFORMANTS AND IN THUS DETERRING THE
COMMISSION OF SUCH CRIMES IN THE FUTURE."  ID., AT 695. 

RELYING ON THESE PRECEDENTS, THE MAJORITY APPARENTLY CONCLUDES THAT
NONDISCRIMINATORY RESTRICTIONS ON PRESS ACCESS TO INFORMATION ARE
CONSTITUTIONALLY IRRELEVANT.  NEITHER ZEMEL NOR BRANZBURG WARRANTS SO
BROAD A READING.  IN ZEMEL THE COURT REJECTED THE ASSERTED FIRST
AMENDMENT RIGHT TO VISIT CUBA ON THE GROUND THAT THE GOVERNMENTAL
RESTRICTION ON TRIPS TO THAT COUNTRY WAS "AN INHIBITION OF ACTION"
RATHER THAN A RESTRAINT OF SPEECH.  381 U. S., AT 16.  HOWEVER
APPROPRIATE TO THE CONTEXT OF THAT CASE, THIS DISTINCTION COULD NOT
HAVE BEEN INTENDED AS AN ALL-EMBRACING TEST FOR DETERMINING WHICH
GOVERNMENTAL REGULATIONS IMPLICATE FIRST AMENDMENT FREEDOMS AND WHICH
DO NOT.  THE DECISION IN UNITED STATES V. O'BRIEN, 391 U. S. 367
(1968), IS SUFFICIENT ANSWER TO ANY SUCH SUGGESTION.  MOREOVER, THE
DICHOTOMY BETWEEN SPEECH AND ACTION, WHILE OFTEN HELPFUL TO ANALYSIS,
IS TOO UNCERTAIN TO SERVE AS THE DISPOSITIVE FACTOR IN CHARTING THE
OUTER BOUNDARIES OF FIRST AMENDMENT CONCERNS.  IN THE INSTANT CASE, FOR
EXAMPLE, IT MAY BE SAID WITH EQUAL FACILITY THAT THE BUREAU FORBIDS THE
CONDUCT, AT LEAST BY NEWSMEN AND THE PUBLIC GENERALLY, OF HOLDING A
PRIVATE MEETING WITH AN INCARCERATED INDIVIDUAL OR, ALTERNATIVELY, THAT
THE BUREAU PROHIBITS THE DIRECT EXCHANGE OF SPEECH THAT CONSTITUTES AN
INTERVIEW WITH A PRESS REPRESENTATIVE.  IN LIGHT OF THE BUREAU'S
WILLINGNESS TO ALLOW LAWYERS, CLERGYMEN, RELATIVES, AND FRIENDS TO MEET
PRIVATELY WITH DESIGNATED INMATES, THE LATTER CHARACTERIZATION OF THE
INTERVIEW BAN SEEMS CLOSER TO THE MARK, BUT IN MY VIEW THE SCOPE AND
MEANING OF FIRST AMENDMENT GUARANTEES DO NOT HINGE ON THESE SEMANTIC
DISTINCTIONS.  THE REALITY OF THE SITUATION IS THE SAME, CERTAINLY IN
THIS CASE, AND THERE IS NO MAGIC IN CHOOSING ONE CHARACTERIZATION
RATHER THAN THE OTHER.  SIMPLY STATED, THE DISTINCTION THAT FORMED THE
BASIS FOR DECISION IN ZEMEL IS NOT HELPFUL HERE. 

NOR DOES BRANZBURG V. HAYES, SUPRA, COMPEL THE MAJORITY'S RESOLUTION
OF THIS CASE.  IT IS TRUE, OF COURSE, THAT THE BRANZBURG DECISION
REJECTED AN ARGUMENT GROUNDED IN THE ASSERTION OF A FIRST AMENDMENT
RIGHT TO GATHER NEWS AND THAT THE OPINION CONTAINS LANGUAGE WHICH, WHEN
READ IN ISOLATION, MAY BE READ TO SUPPORT THER MAJORITY'S VIEW.  E. G.,
408 U. S., AT 684 - 685.  TAKEN IN ITS ENTIRETY, HOWEVER, BRANZBURG
DOES NOT ENDORSE SO SWEEPING A REJECTION OF FIRST AMENDMENT CHALLENGES
TO RESTRAINTS ON ACCESS TO NEWS.  THE COURT DID NOT HOLD THAT THE
GOVERNMENT IS WHOLLY FREE TO RESTRICT PRESS ACCESS TO NEWSWORHTY
INFORMATION.  TO THE CONTRATY, WE RECOGNIZED EXPLICITLY THAT THE
CONSTITUTIONAL GUARANTEE OF FREEDOM OF THE PRESS DOES EXTEND TO SOME OF
THE ANTECEDENT ACTIVITIES THAT MAKE THE RIGHT TO PUBLISH MEANINGFUL:
"NOR IS IT SUGGESTED THAT NEWS GATHERING DOES NOT QUALIFY FOR FIRST
AMENDMENT PROTECTION; WITHOUT SOME PROTECTION FOR SEEKING OUT THE NEWS,
FREEDOM OF THE PRESS COULD BE EVISCERATED."  ID., AT 681.  WE LATER
REITERATED THIS POINT BY NOTING THAT "NEWS GATHERING IS NOT WITHOUT ITS
FIRST AMENDMENT PROTECTIONS...."  ID., AT 707.  AND I EMPHASIZED THE
LIMITED NATURE OF THE BRANZBURG HOLDING IN MY CONCURRING OPINION:  "THE
COURT DOES NOT HOLD THAT NEWSMEN, SUBPOENAED TO TESTIFY BEFORE A GRAND
JURY, ARE WITHOUT CONSTITUTIONAL RIGHTS WITH RESPECT TO THE GATHERING
OF NEWS OR IN SAFEGUARDING THEIR SOURCES."  ID., AT 709.  IN ADDITION
TO THESE EXPLICIT STATEMENTS, A FAIR READING OF THE MAJORITY'S ANALYSIS
IN BRANZBURG MAKES PLAIN THAT THE RESULT HINGED ON AN ASSESSMENT OF THE
COMPETING SOCIETAL INTERESTS INVOLVED IN THAT CASE RATHER THAN ON ANY
DETERMINATION THAT FIRST AMENDMENT FREEDOMS WERE NOT IMPLICATED.  SEE
ESPECIALLY ID., AT 700 - 701. 

IN SUM, NEITHER ZEMEL NOR BRANZBURG PRESENTS A BARRIER TO
INDEPENDENT CONSIDERATION OF RESPONDENTS' CONSTITUTIONAL ATTACK ON THE
INTERVIEW BAN.  THOSE PRECEDENTS AROSE IN CONTEXTS FAR REMOVED FROM
THAT OF THE INSTANT CASE, AND IN MY VIEW NEITHER CONTROLS HERE.  TO THE
EXTENT THAT ZEMEL AND BRANZBURG SPEAK TO THE ISSUE BEFORE US, THEY
REFLECT NO MORE THAN A SENSIBLE DISINCLINATION TO FOLLOW THE RIGHT-TO
ACCESS ARGUMENT AS FAR AS DRY LOGIC MIGHT EXTEND.  AS THE COURT
OBSERVED IN ZEMEL, "(THERE ARE FEW RESTRICTIONS ON ACTION WHICH COULD
NOT BE CLOTHED BY INGENIOUS ARGUMENT IN THE GARB OF DECREASED DATA
FLOW."  381 U. S., AT 16 - 17.  IT GOES TOO FAR TO SUGGEST THAT THE
GOVERNMENT MUST JUSTIFY UNDER THE STRINGENT STANDARDS OF FIRST
AMENDMENT REVIEW EVERY REGULATION THAT MIGHT AFFECT IN SOME TANGENTIAL
WAY THE AVAILABILITY OF INFORMATION TO THE NEWS MEDIA.  BUT TO MY MIND
IT IS EQUALLY IMPERMISSIBLE TO CONCLUDE THAT NO GOVERNMENTAL INHIBITION
OF PRESS ACCESS TO NEWSWORTHY INFORMATION WARRANTS CONSTITUTIONAL
SCRUTINY.  AT SOME POINT OFFICIAL RESTRAINTS ON ACCESS TO NEWS SOURCES,
EVEN THOUGH NOT DIRECTED SOLELY AT THE PRESS, MAY SO UNDERMINE THE
FUNCTION OF THE FIRST AMENDMENT THAT IT IS BOTH APPROPRIATE AND
NECESSARY TO REQUIRE THE GOVERNMENT TO JUSTIFY SUCH REGULATIONS IN
TERMS MORE COMPELLING THAN DISCRETIONARY AUTHORITY AND ADMINISTRATIVE
CONVENIENCE.  IT IS WORTH REPEATING OUR ADMONITION IN BRANZBURG THAT
"WITHOUT SOME PROTECTION FOR SEEKING OUT THE NEWS, FREEDOM OF THE PRESS
COULD BE EVISCERATED."  408 U. S., AT 681. 

THE SPECIFIC ISSUE HERE IS WHETHER THE BUREAU'S PROHIBITION OF
PRISONER-PRESS INTERVIEWS GIVES RISE TO A CLAIM OF CONSTITUTIONAL
DIMENSIONS.  THE INTERVIEW BAN IS CATEGORICAL IN NATURE.  ITS
CONSEQUENCE IS TO PRECLUDE ACCURATE AND EFFECTIVE REPORTING ON PRISON
CONDITIONS AND INMATE GRIEVANCES.  THESE SUBJECTS ARE NOT PRIVILEGED OR
CONFIDENTIAL THE GOVERNMENT HAS NO LEGITIMATE INTEREST IN PREVENTING
NEWSMEN FROM OBTAINING THE INFORMATION THAT THEY MAY LEARN THROUGH
PERSONAL INTERVIEWS OR FROM REPORTING THEIR FINDINGS TO THE PUBLIC. 
QUITE TO THE CONTRARY, FEDERAL PRISONS ARE PUBLIC INSTITUTIONS.  THE
ADMINISTRATION OF THESE INSTITUTIONS, THE EFFECTIVENESS OF THEIR
REHABILITATIVE PROGRAMS, THE CONDITIONS OF CONFINEMENT THAT THEY
MAINTAIN, AND THE EXPERIENCES OF THE INDIVIDUALS INCARCERATED THEREIN
ARE ALL MATTERS OF LEGITIMATE SOCIETAL INTEREST AND CONCERN.  /7/
RESPONDENTS DO NOT ASSERT A RIGHT TO FORCE DISCLOSURE OF CONFIDENTIAL
INFORMATION OR TO INVADE IN ANY WAY THE DECISIONMAKING PROCESSES OF
GOVERNMENTAL OFFICIALS.  NEITHER DO THEY SEEK TO QUESTION ANY INMATE
WHO DOES NOT WISH TO BE INTERVIEWED.  THEY ONLY SEEK TO BE FREE OF AN
EXCEPTIONLESS PROHIBITION AGAINST A METHOD OF NEWSGATHERING THAT IS
ESSENTIAL TO EFFECTIVE REPORTING IN THE PRISON CONTEXT. 

I BELIEVE THAT THIS SWEEPING PROHIBITION OF PRISONER-PRESS
INTERVIEWS SUBSTANTIALLY IMPAIRS A CORE VALUE OF THE FIRST AMENDMENT. 
SOME YEARS AGO, PROFESSOR CHAFEE POINTED OUT THAT THE GUARANTEE OF
FREEDOM OF SPEECH AND PRESS PROTECTS TWO KINDS OF INTERESTS: "THERE IS
AN INDIVIDUAL INTEREST, THE NEED OF MANY MEN TO EXPRESS THEIR OPINIONS
ON MATTERS VITAL TO THEM IF LIFE IS TO BE WORTH LIVING, AND A SOCIAL
INTEREST IN THE ATTAINMENT OF TRUTH, SO THAT THE COUNTRY MAY NOT ONLY
ADOPT THE WISEST COURSE OF ACTION BUT CARRY IT OUT IN THE WISEST WAY." 
Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 33 (1954).  IN ITS USUAL
APPLICATION --AS A BAR TO GOVERNMENTAL RESTRAINTS ON SPEECH OR
PUBLICATION--THE FIRST AMENDMENT PROTECTS IMPORTANT VALUES OF
INDIVIDUAL EXPRESSION AND PERSONAL SELF-FULFILLMENT.  BUT WHERE AS
HERE, THE GOVERNMENT IMPOSES NEITHER A PENALTY ON SPEECH NOR ANY
SANCTION AGAINST PUBLICATION, THESE INDIVIDUALISTIC VALUES OF THE FIRST
AMENDMENT ARE NOT DIRECTLY IMPLICATED. 

WHAT IS AT STAKE HERE IS THE SOCIETAL FUNCTION OF THE FRIST
AMENDMENT IN PRESERVING FREE PUBLIC DISCUSSION OF GOVERNMENTAL
AFFAIRS.  NO ASPECT OF THAT CONSTITUTIONAL GUARANTEE IS MORE RIGHTLY
TREASURED THAN ITS PROTECTION OF THE ABILITY OF OUR PEOPLE THROUGH FREE
AND OPEN DEBATE TO CONSIDER AND RESOLVE THEIR OWN DESTINY.  AS THE
SOLICITOR GENERAL MADE THE POINT, "(THE FIRST AMENDMENT IS ONE OF THE
VITAL BULWARKS OF OUR NATIONAL COMMITMENT TO INTELLIGENT SELF
GOVERNMENT."  BRIEF FOR PETITIONERS 47 - 48.  IT EMBODIES OUR NATION'S
COMMITMENT TO POPULAR SELF-DETERMINATION AND OUR ABIDING FAITH THAT THE
SUREST COURSE FOR DEVELOPING SOUND NATIONAL POLICY LIES IN A FREE
EXCHANGE OF VIEWS ON PUBLIC ISSUES.  /8/  AND PUBLIC DEBATE MUST NOT
ONLY BE UNFETTERED; IT MUST ALSO BE INFORMED.  FOR THAT REASON THIS
COURT HAS REPEATEDLY STATED THAT FIRST AMEDNMENT CONCERNS ENCOMPASS THE
RECEIPT OF INFORMATION AND IDEAS AS WELL AS THE RIGHT OF FREE
EXPRESSION.  KLEINDIENST V. MANDEL, 408 U. S. 753, 762 (1972); RED LION
BROADCASTING CO. V. FCC, 395 U. S. 367, 390 1969; LAMONT V. POSTMASTER
GENERAL, 381 U.S. 301 (1965); MARTIN V. CITY OF STRUTHERS, 319 U. S.
141, 143 (1943). 

IN MY VIEW THIS REASONING ALSO UNDERLIES OUR RECOGNITION IN
BRANZBURG THAT "NEWS GATHERING IS NOT WITHOUT ITS FIRST AMENDMENT
PROTECTIONS.  . . ."  408 U. S., AT 707.  AN INFORMED PUBLIC DEPENDS ON
ACCURATE AND EFFECTIVE REPORTING BY THE NEWS MEDIA.  NO INDIVIDUAL CAN
OBTAIN FOR HIMSELF THE INFORMATION NEEDED FOR THE INTELLIGENT DISCHARGE
OF HIS POLITICAL RESPONSIBILITIES.  FOR MOST CITIZENS THE PROSPECT OF
PERSONAL FAMILIARITY WITH NEWSWORTHY EVENTS IS HOPELESSLY UNREALISTIC. 
IN SEEKING OUT THE NEWS THE PRESS THEREFORE ACTS AS AN AGENT OF THE
PUBLIC AT LARGE.  IT IS THE MEANS BY WHICH THE PEOPLE RECEIVE THAT FREE
FLOW OF INFORMATION AND IDEAS ESSENTIAL TO INTELLIGENT SELF
GOVERNMENT.  BY ENABLING THE PUBLIC TO ASSERT MEANINGFUL CONTROL OVER
THE POLITICAL PROCESS, THE PRESS PERFORMS A CRUCIAL FUNCTION IN
EFFECTING THE SOCIETAL PURPOSE OF THE FIRST AMENDMENT.  THAT FUNCTION
IS RECOGNIZED BY SPECIFIC REFERENCE TO THE PRESS IN THE TEXT OF THE
AMENDMENT AND BY THE PRECEDENTS OF THIS COURT: 

"THE CONSTITUTION SPECIFICALLY SELECTED THE PRESS . . . TO PLAY AN
IMPORTANT ROLE IN THE DISCUSSION OF PUBLIC AFFAIRS.  THUS THE PRESS
SERVES AND WAS DESIGNED TO SERVE AS A POWERFUL ANTIDOTE TO ANY ABUSES
OF POWER BY GOVERNMENTAL OFFICIALS AND AS A CONSTITUTIONALLY CHOSEN
MEANS FOR KEEPING OFFICIALS ELECTED BY THE PEOPLE RESPONSIBLE TO ALL
THE PEOPLE WHOM THEY WERE SELECTED TO SERVE."  MILLS V. ALABAMA, 384
U.S. 214, 219 (1966). 

THIS CONSTITUTIONALLY ESTABLISHED ROLE OF THE NEWS MEDIA IS DIRECTLY
IMPLICATED HERE.  FOR GOOD REASONS, UNRESTRAINED PUBLIC ACCESS IS NOT
PERMITTED.  THE PEOPLE MUST THEREFORE DEPEND ON THE PRESS FOR
INFORMATION CONCERNING PUBLIC INSTITUTIONS.  THE BUREAU'S ABSOLUTE
PROHIBITION OF PRISONER-PRESS INTERVIEWS NEGATES THE ABILITY OF THE
PRESS TO DISCHARGE THAT FUNCTION AND THEREBY SUBSTATIALLY IMPAIRS THE
RIGHT OF THE PEOPLE TO A FREE FLOW OF INFORMATION AND IDEAS ON THE
CONDUCT OF THEIR GOVERNMENT.  THE UNDERLYING RIGHT IS THE RIGHT OF THE
PUBLIC GENERALLY.  THE PRESS IS THE NECESSARY REPRESENTATIVE OF THE
PUBLIC'S INTEREST IN THIS CONTEXT AND THE INSTRUMENTALITY WHICH EFFECTS
THE PUBLIC'S RIGHT.  I THEREFORE CONCLUDE THAT THE BUREAU'S BAN AGAINST
PERSONAL INTERVIEWS MUST BE PUT TO THE TEST OF FIRST AMENDMENT REVIEW. 

        III 

BECAUSE I BELIEVE THA THE BAN AGAINST PRISONER-PRESS INTERVIEWS
SIGNIFICANTLY IMPINGES ON FIRST AMENDMENT FREEDOMS, I MUST CONSIDER
WHETHER THE GOVERNMENT HAS MET ITS HEAVY BURDEN OF JUSTIFICATION FOR
THAY POLICY.  IN TINKER V. DES MOINES SCHOOL DISTRICT, 393 U. S. 503
(1969), THE COURT NOTED THAT FIRST AMENDMENT GUARANTEES MUST BE
"APPLIED IN LIGHT OF THE SPECIAL CHARACTERISTICS OF THE . . .
ENVIRONMENT."  ID., AT 506.  EARLIER THIS TERM WE HAD OCCASION TO
CONSIDER THE APPLICABILITY OF THOSE GUARANTEES IN LIGHT OF THE SPECIAL
CHARACTERISTICS OF THE PRISON ENVIRONMENT.  THAT OPPORTUNITY AROSE IN
PROCUNIER V. MARTINEZ, 416 U. S. 396 (1974), WHERE WE CONSIDERED THE
CONSTITUTIONALITY OF CALIFORMIA PRISON REGULATIONS AUTHORIZING
CENSORSHIP OF INMATE CORRESPONDENCE.  WE DECLINED TO ANALYZE THAT CASE
IN TERMS OF "PRISONERS'  RIGHTS," FOR WE CONCLUDED THAT CENSORSHIP OF
PRISONER MAIL, WHETHER INCOMING OR OUTGOING, IMPINGES ON THE INTEREST
IN COMMUNICATION OF BOTH THE INMATE AND THE NONPRISONER CORRESPONDENT:
"WHATEVER THE STATUS OF A PRISONER'S CLAIM TO UNCENSORED CORRESPONDENCE
WITH AN OUTSIDER, IT IS PLAIN THAT THE LATTER'S INTEREST IS GROUNDED IN
THE FIRST AMENDMENT'S GUARANTEE OF FREEDOM OF SPEECH."  ID., AT 408. 
WE THEREFORE LOOKED FOR GUIDANCE "NOT TO CASES INVOLVING QUESTIONS OF
'PRISONERS' RIGHT,' BUT TO DECISIONS OF THIS COURT DEALING WITH THE
GENERAL PROBLEM OF INCIDENTAL RESTRICTIONS ON FIRST AMENDMENT LIBERTIES
IMPOSED IN FURTHERANCE OF LEGITIMATE GOVERNMENTAL ACTIVITIES."  ID., AT
409.  ADOPTING THE APPROACH FOLLOWED IN TINKER, SUPRA; HEALY V. JAMES,
408 U.S. 169 (1972); AND UNITED STATES V. O'BRIEN, 391 U.S. 367 (1968),
WE ENUNCIATED THE FOLLOWING STANDARD FOR DETERMINING THE
CONSTITUTIONALITY OF PRISON REGULATIONS THAT LIMIT THE FIRST AMENDMENT
LIBERTIES OF NONPRISONERS: 

"FIRST, THE REGULATION OR PRACTICE IN QUESTION MUST FURTHER AN
IMPORTANT OR SUBSTANTIAL GOVERMENTAL INTEREST UNRELATED TO THE
SUPPRESSION OF EXPRESSION....  SECOND, THE LIMITATION OF FIRST
AMENDMENT FREEDOMS MUST BE NO GREATER THAN IS NECESSARY OR ESSENTIAL TO
THE PROTECTION OF THE PARTICULAR GOVERNMENTAL INTEREST INVOLVED."  416
U. S., AT 413. 

WE ANNOUNCED PROCUNIER V. MARTINEZ, SUPRA, AFTER FINAL DECISION OF
THIS CASE BY THE DISTRICT COURT AND AFFIRMANCE BY THE COURT OF
APPEALS.  HAPPILY, THOSE COURTS ANTICIPATED OUR HOLDING IN PROCUNIER
AND DECEIDED THIS CASE UNDER A STANDARD OF FIRST AMENDMENT REVIEW THAT
IS IN SUBSTANCE IDENTICAL TO OUR FORMULATION THERE.  THUS, THE COURT OF
APPEALS SOUGHT TO ASSURE THAT THE IMPAIRMENT OF THE PUBLIC'S RIGHT TO A
FREE FLOW OF INFORMATION ABOUT PRISONS IS "NO GREATER THAN IS NECESSARY
FOR THE PROTECTION OF THE LEGITIMATE SOCIETAL INTERESTS IN THE
EFFECTIVE AMINISTRATION OF (PENAL) SYSTEMS."  161 U.S. APP. D.C., AT
80, 494 F.2D, AT 999.  /9/  THE COURT REVIEWED IN DETAIL THE VARIOUS
INTERESTS ASSERTED BY THE BUREAU AND REACHED THE FOLLOWING CONCLUSION: 

"(WHILE WE DO NOT QUESTION THAT THE CONCERNS VOICED BY THE BUREAU
ARE LEGITIMATE INTEREST THAT MERIT PROTECTION, WE MUST AGREE WITH THE
DISTRICT COURT THAT THEY DO NOT, INDIVIDUALLY OR IN TOTAL, JUSTIFY THE
SWEEPING ABSOLUTE BAN THAT THE BUREAU HAS CHOSEN TO IMPOSE.  WHEN
REGULATING AN AREA IN WHICH FIRST AMENDMENT INTERESTS ARE INVOLVED,
ADMINISTRATIVE OFFICIALS MUST BE CAREFUL NOT ONLY TO ASSURE THAT THY
ARE RESPONDING TO LEGITIMATE INTERESTS WHICH ARE WITHIN THEIR POWERS TO
PROTECT; THEY MUST ALSO TAKE CARE NOT TO CAST REGULATIONS IN A BROAD
MANNER THAT UNNECESSARILY SACRIFICES FIRST AMENDMENT RIGHTS.  IN THIS
CASE THE SCOPE OF THE INTERVIEW BAN IS EXCESSIVE; THE BUREAU'S
INTERESTS CAN AND MUST BE PROTECTED ON A MORE SELECTIVE BASIS."  ID.,
AT 86, 494 F.2D, AT 1005. 

I AGREE WITH THIS CONCLUSION BY THE COURT OF APPEALS.  THE BUREAU'S
PRINCIPAL JUSTIFICATION FOR ITS INTERVIEW BAN HAS BECOME KNOWN DURING
THE COURSE OF THIS LITIGATION AS THE "BIG WHEEL" PHENOMENON.  THE
PHRASE REFERS GENERALLY TO INMATE LEADERS.  THE BUREAU ARGUES THAT
PRESS INTERVIEWS WITH "BIG WHEELS" INCREASE THEIR STATUS AND INFLUENCE
AND THUS ENHANCE THEIR ABILITY TO PERSUADE OTHER PRISONERS TO ENGAGE IN
DISRUPTIVE BEHAVIOR.  AS A RESULT SECURITY IS THREATENED, DISCIPLINE
IMPAIRED, AND MEANINGFUL REHABILITATION RENDERED MORE PROBLEMATICAL
THAN EVER. 

THERE SEEMS TO BE LITTLE QUESTION THAT "BIG WHEELS" DO EXIST /10/
AND THAT THEIR CAPACITY TO INFLUENCE THEIR FELLOW INMATES MAY HAVE A
NEGATIVE IMPACT ON THE CORRECTIONAL ENVIRONMENT OF PENAL INSTITUTIONS. 
WHETHER PRESS INTERVIEWS PLAY A SIGNIFICANT ROLE IN THE CREATION OF
"BIG WHEELS" OR IN THE ENHANCEMENT OF THEIR PRESTIGE WAS A SUBJECT OF
DISPUTE IN THE DISTRICT COURT.  WITH APPROPRIATE REGARD FOR THE
EXPERTISE OF PRISON ADMINISTRATORS, THAT COURT FOUND THAT THE PROBLEMS
ASSOCIATED WITH THE "BIG WHEEL" PHENOMENON "ARE ALL REAL CONSIDERATIONS
AND WHILE SOMEWHAT IMPRESSIONISTIC, THEY ARE SUPPORTED BY EXPERIENCE
AND ADVANCED IN GOOD FAITH."  357 F. SUPP. 770, 774. 

THE DISTRICT COURT ALSO FOUND, HOWEVER, THAT THE "BIG WHEEL" THEORY
DOES NOT JUSTIFY THE BUREAU'S CATEGORICAL PROHIBITION OF ALL PRESS
INTERVIEWS, AND THE COURT OF APPEALS ENDORSED THIS CONCLUSION.  THE
RATIONAL APPLIES ONLY TO THOSE INDIVIDUALS WITH BOTH DISRUPTIVE
PROCLIVITIES AND LEADERSHIP POTENTIAL.  THE RECORD REVEALS ESTIMATES OF
THE NUMBER OF PRISON TROUBLEMAKERS RANGING FROM FIVE TO TEN PERCENT. 
LOGICALLY, THE NUMBER OF PRISONERS IN THIS CATEGORY WHO HAVE
SIGNIFICANT INFLUENCE IN THE INMATE COMMUNITY SHOULD CONSTITUTE A
SUBSTANTIALLY SMALLER PERCENTAGE.  TO THE EXTENT THAT THE "BIG WHEEL"
PHENOMENON INCLUDES INFLUENTIAL INMATES WHO GENERALLY COOPERATE IN
MAINTAINING INSTITUTIONAL ORDER, IT IS NOT A PROBLEM AT ALL.  PUBLICITY
WHICH ENHANCES THEIR PRESTIGE IS CERTAINLY NO HINDRANCE TO EFFECTIVE
PENAL ADMINISTRATION.  MOREOVER, THE BUREAU HAS NOT SHOWN THAT IT IS
UNABLE TO INDENTIFY DISRUPTIVE "BIG WHEELS" AND TO TAKE PRECAUTIONS
SPECIFICALLY DESIGNED TO PREVENT THE ADVERSE EFFECTS OF MEDIA ATTENTION
TO SUCH INMATES.  IN SHORT, THE REMEDY OF NO INTERVIEW OF ANY INMATE IS
BROADER THAN IS NECESSARY TO AVOID THE CONCEDEDLY REAL PROBLEMS OF THE
"BIG WHEEL"  PHENOMENON.  /11/     THIS CONCLUSION IS SUPPORTED BY
DETAILED EVIDENCE AND BY THE SUCCESSFUL EXPERIENCE OF OTHER PRISON
SYSTEMS IN ALLOWING PRISONER-PRESS INTERVIEWS.  IN CONNECTION WITH THIS
LITIGATION, COUNSEL FOR RESPONDENTS ATTEMPTED TO ASCERTAIN THE
INTERVIEW POLICIES FOLLOWED BY PRISON ADMINISTRATERS IN EVERY STATE AND
IN MUBEROUS LOCAL JURISDICTION.  THE DISTRICT COURT RECEIVED INTO
EVIDENCE ONLY THOSE POLICY STATEMEMTS THAT HAD BEEN ADPOTED IN WRITTEN
FORM.  OF THE 24 AMERICAN JURISDICTIONS IN THIS SAMPLE, ONLY FIVE
BROADLY PROHIBIT PERSONAL INTERVIEWS OF PRISON INMATES BY MEDIA
REPRESENTATIVES.  /12/  SEVEN JURISDICTIONS VEST IN CORRECTIONAL
OFFICIALS THE AUTHORITY TO ALLOW OR DENY SUCH INTERVIEWS ON A CASE-BY
CASE BASIS, /13/  AND 11 GENERALLY PERMIT PRISONER-PRESS INTERVIEWS. 
/14/  THUS, CORRECTIONAL AUTHORITIES IN A SUBSTANTIAL MAJORITY OF THE
PRISON SYSTEMS REPRESENTED HAVE FOUND NO NEED TO ADOPT AN EXCEPTIONLESS
PROHIBITION AGAINST ALL PRESS INTERVIEWS OF CONSENTING INMATES, AND A
SIGNIFICANT NUMBER OF JURISDICTIONS MORE OR LESS FREELY PERMIT THEM. 
THE DISTRICT COURT RECEIVED DETAILED EVIDENCE CONCERNING THESE PRISON
SYSTEMS AND THE SUCCESS OF THE OPEN-INTERVIEW POLICY /15/  AND FOUND NO
SUBSTANTIAL REASON TO SUPPOSE THAT THE BUREAU OF PRISONS FACES
DIFFICULTIES MORE SEVERE THAN THOSE ENCOUNTERED IN THE JURISDICTIONS
THAT GENERALLY ALLOW PRESS INTERVIEWS.  THIS SURVERY OF PREVAILING
PRACTICES REINFORCES THE CONCLUSION THAT THE BUREAU'S PROHIBITION OF
ALL PRISONER-PRESS INTERVIEWS IS NOT NECESSARY TO THE PROTECTION OF THE
LEGITIMATE GOVERNMENTAL INTERESTS AT STAKE. 

        IV 

FINDING NO NECESSITY FOR AN ABSOLUTE INTERVIEW BAN, THE DISTRICT
COURT PROCEEDED TO REQUIRE THAT INTERVIEW REQUESTS BE EVALUATED ON A
CASE-BY-CASE BASIS AND THAT THEY BE REFUSED ONLY WHEN THE CONDUCT OF AN
INDIVIDUAL INMATE OR THE CONDITIONS PREVAILING AT A PARTICULAR
INSTITUTION WARRANT SUCH ACTION.  THE COURT OF APPEALS AFFIRMED THE
SUBSTANCE OF THE ORDER:  /16/ 

"(WE . . . REQUIRE THAT INTERVIEWS BE DENIED ONLY WHERE IT IS THE
JUDGMENT OF THE ADMINISTRATOR DIRECTLY CONCERNED, BASED ON EITHER THE
DEMONSTRATED BEHAVIOR OF THE INMATE, OR SPECIAL CONDITIONS EXISTING AT
THE INSTITUTION AT THE TIME THE INTERVIEW IS REQUESTED, OR BOTH, THAT
THE INTERVIEW PRESENTS A SERIOUS RISK OF ADMINISTRATIVE OR DISCIPLINARY
PROBLEMS."  161 U.S. APP. D.C., AT 87-88, 494 F.2D, AT 1006-1007. 

THE BUREAU OBJECTS TO THE REQUIREMENT OF INDIVIDUAL EVALUATION OF
INTERVIEW REQUEST.  IT ARGUES THAT THIS APPROACH WOULD UNDERMINE INMATE
MORALE AND DISCIPLINE AND OCCASION SEVERE ADMINISTRATIVE DIFFCULTIES. 
THE LINE BETWEEN A GOOD-FAITH DENIAL OF AN INTERVIEW FOR LEGITIMATE
REASONS AND A SELF-INTERESTED DETERMINATION TO AVOID UNFAVORABLE
PUBLICITY COULD PROVE PERILOUSLY THIN.  NO UNNATURALLY, PRISON
ADMINISTRATORS MIGHT TEND TO ALLOW INTERVIEWS WITH COOPERATIVE INMATES
AND RESTRICT PRESS ACCESS TO KNOWN CRITICS OF INSTITUTIONAL POLICY AND
MANAGEMENT.  DENIALS THAT WERE IN FACT BASED ON AN ADMINISTRATOR'S
HONEST PERCEPTION OF THE RISK TO ORDER AND SECURITY MIGHT BE
INTERPRETED BY SOME INMATES AS EVIDENCE OF BIAS AND DISCRIMNATION. 
ADDITIONALLY, A POLICY REQUIRING CASE-BY-CASE EVALUATION OF INTERVIEW
REQUESTS COULD SUBJECT THE BUREAU TO WIDESPREAD LITIGATION OF AN
ESPECIALLY DEBILITATING NATURE.  UNABLE TO RELY ON A CORRECT
APPLICATION OF A GENERAL RULE OR POLICY AUTHORIZING DENIAL, PRISON
OFFICIALS WOULD BE FORCED TO AN AD HOC DEFENSE OF THE MERITS OF EACH
DECISION BEFORE REVIEWING COURTS.  IN SHORT, THE BUREAU ARGUES THAT AN
INDIVIDUALIZED APPROACH TO PRESS INTERVIEWS IS CORRECTIONALLY UNSOUND
AND ADMINISTRATIVELY BURDENSOME. 

THIS ASSESSMENT OF THE DIFFICULTIES ASSOCIATED WITH CASE-BY-CASE
EVALUATION OF INTERVIEW REQUESTS MAY SEEM OVERLY PESSIMISTIC, BUT IT IS
NOT WITHOUT MERIT.  IN ANY EVENT, THIS IS THE CONSIDERED PROFESSIONAL
OPINION OF THE RESPONSIBLE ADMINISTRATIVE AUTHORITIES.  THEY ARE
ENTITLED TO MAKE THIS JUDGMENT, AND THE COURTS ARE BOUND TO RESPECT
THEIR DECISION UNLESS THE CONSTITUTION COMMANDS OTHERWISE.  WHILE I
AGREE WITH THE DISTRICT COURT AND THE COURT OF APPEALS THAT THE FIRST
AMENDMENT REQUIRES THE BUREAU TO ABANDON ITS ABSOLUTE BAN AGAINST PRESS
INTERVIEWS, I DO NOT BELIEVE THAT IT COMPELS THE ADOPTION OF A POLICY
OF AD HOC BALANCING OF THE COMPETING INTERESTS INVOLVED IN EACH REQUEST
FOR AN INTERVIEW. 

THIS CONCLUSION FOLLOWS FROM MY ANALYSIS IN PART II, SUPRA, OF THE
NATURE OF THE CONSTITUTIONAL RIGHT AT ISSUE IN THIS CASE.  THE ABSOLUTE
INTERVIEW BAN PRECLUDES ACCURATE AND EFFECTIVE REPORTING ON PRISON
CONDITIONS AND INMATE GRIEVANCES AND THEREBY SUBSTANTIALLY NEGATES THE
ABILITY OF THE NEWS MEDIA TO INFORM THE PUBLIC ON THOSE SUBJECTS. 
BECAUSE THE INTERVIEW BAN SIGNIFICANTLY IMPAIRS THE CONSTITUTIONAL
INTEREST OF THE PEOPLE IN A FREE FLOW OF INFORMATION AND IDEAS ON THE
CONDUCT OF THEIR GOVERNMENT, IT IS APPROPRIATE THAT THE BUREAU BE PUT
TO A HEAVY BURDEN OF JUSTIFICATION FOR THAT POLICY.  BUT IT DOES NOT
FOLLOW THAT THE BUREAU IS UNDER THE SAME HEAVY BURDEN TO JUSTIFY ANY
MEASURE OF CONTROL OVER PRESS ACCESS TO PRISON INMATES.  GOVERNMENTAL
REGULATION THAT HAS NO PALPABLE IMPACT ON THE UNDERLYING RIGHT OF THE
PUBLIC TO THE INFORMATION NEEDED TO ASSERT ULTIMATE CONTROL OVER THE
POLITICAL PROCESS IS NOT SUBJECT TO SCRUTINY UNDER THE FIRST
AMENDMENT.  COMMON SENSE AND PROPER RESPECT FOR THE CONSTITUTIONAL
COMMITMENT OF THE AFFAIRS OF STATE TO THE LEGISLATIVE AND EXECUTIVE
BRANCHES SHOULD DETER THE JUDICIARY FROM CHASING THE RIGHT-OF-ACCESS
RAINBOWS THAT AN ADVOCATE'S EYE CAN SPOT IN VIRTUALLY ALL GOVERNMENTAL
ACTIONS.  GOVERNMENTAL REGULATIONS SHOULD NO BE POLICED IN THE NAME OF
A "RIGHT TO KNOW" UNLESS THEY SIGNIFICANTLY AFFECT THE SOCIETAL
FUNCTION OF THE FIRST AMENDMENT.  I THEREFORE BELIEVE THAT A PRESS
INTERVIEW POLICY THAT SUBSTANTIALLY ACCOMMODATES THE PUBLIC'S
LEGITIMATE INTEREST IN A FREE FLOW OF INFORMATION AND IDEAS ABOUT
FEDERAL PRISONS SHOULD SURVIVE CONSTITUTIONAL REVIEW.  THE BALANCE
SHOULD BE STRUCK BETWEEN THE ABSOLUTE BAN OF THE BUREAU AND AN
UNINHIBITED LICENSE TO INTERVIEW AT WILL. 

THUS, THE BUREAU COULD MEET ITS OBLIGATION UNDER THE FIRST AMENDMENT
AND PROTECT ITS LEGITIMATE CONCERN FOR EFFECTIVE PENAL ADMINISTRATION
BY RULES DRAWN TO SERVE BOTH PURPOSES WITHOUT UNDERTAKING TO MAKE AN
INDIVIDUAL EVALUATION OF EVERY INTERVIEW REQUEST.  CERTAINLY THE BUREAU
MAY ENFORCE REASONABLE TIME, PLACE, AND MANNER RESTRICTIONS FOR PRESS
INTERVIEWS.  SUCH REGULATIONS ALREADY GOVERN INTERVIEWS OF INMATES BY
ATTORNEYS, CLERGYMEN, RELATIVES, AND FRIENDS.  THEIR APPLICATION TO
NEWSMEN WOULD PRESENT NO GREAT PROBLEMS.  TO AVOID MEDIA CREATION OF
"BIG WHEELS," THE BUREAU MAY LIMIT THE NUMBER OF INTERVIEWS OF ANY
GIVEN INMATE WITHIN A SPECIFIED TIME PERIOD.  TO MINIMIZE THE ADVERSE
CONSEQUENCES OF PUBLICITY CONCERNING EXISTING "BIG WHEELS," THE BUREAU
MAY REFUSE TO ALLOW ANY INTERVIEWS OF A PRISONER UNDER TEMPORARY
DISCIPLINARY SANCTION SUCH AS SOLITARY CONFINEMENT.  AND, OF COURSE,
PRISON ADMINISTRATORS SHOULD BE EMPOWERED TO SUSPEND ALL PRESS
INTERVIEWS DURING PERIODS OF INSTITUTIONAL EMERGENCY.  SUCH REGULATIONS
WOULD ENABLE THE BUREAU TO SAFEGUARD ITS LEGITIMATE INTERESTS WITHOUT
INCURRING THE RISKS ASSOCIATED WITH ADMINISTRATION OF A WHOLLY AD HOC
INTERVIEW POLICY. 

A SIMILAR APPROACH WOULD ALLAY ANOTHER OF THE BUREAU'S PRINCIPAL
CONCERNS--THE DIFFICULTY OF DETERMINING WHO CONSTITUTES THE PRESS.  THE
BUREAU CORRECTLY POINTS OUT THAT "THE PRESS" IS A VAGUE CONCEPT.  ANY
INDIVIDUAL WHO ASSERTS AN INTENTION TO CONVEY INFORMATION TO OTHERS
MIGHT PLAUSIBLY CLAIM TO PERFORM THE FUNCTION OF THE NEWS MEDIA AND
INSIST THAT HE RECIEVE THE SAME ACCESS TO PRISON INMATES MADE AVAILABLE
TO ACCREDITED REPORTERS.  THE BUREAU IS UNDERSTANDANLY RELUCTANT TO
ASSUME THE RESPONSIBILITY FOR DECIDING SUCH QUESTIONS ON A CASE-BY-CASE
BASIS.  YET THE BUREAU ALREADY GRANTS SPECIAL MAIL PRIVILEGES TO
MEMBERS OF THE NEWS MEDIA, AND FOR THAT PURPOSE IT DEFINES THE PRESS AS
FOLLOWS" "A NEWSPAPER ENTITLED TO SECOND CLASS MAILING PRIVILEGES; A
MAGIZINE OR PERIODICAL OF GENERAL DISTRIBUTION; A NATIONAL OR
INTERNATIONAL NEWS SERVICE; A RADIO OR TELEVISION NETWORK OR STATION." 
POLICY STATEMENT 1220.1A, 4A.  THIS REGULATION OR ONE LESS ALL
INCLUSIVE COULD SERVE AS AN ADEQUATE BASIS FOR FORMULATING A
CONSTITUTIONALLY ACCEPTABLE INTERVIEW POLICY.  ALLOWING PERSONAL
INTERVIES OF PRISON INMATES BY REPRESENTATIVES OF THE NEWS MEDIA, AS SO
DEFINED, WOULD AFFORD SUBSTANTIAL OPPORTUNITY FOR THE PUBLIC TO BE
INFORMED ON THE CONDUCT OF FEDERAL PRISIONS.  THE FACT THAT SOME
INDIVIDUALS WHO MAY DESIRE INTERVIEWS WILL NOT FALL WITHIN A BROAD AND
OTHERWISE REASONABLE DEFINITION OF THE PRESS SHOULD NOT PRESNET ANY
CONSTITUTIONAL DIFFICULITY.  /17/ 

THESE COMMENTS ARE NOT INTENDED TO BE EXHAUSTIVE OR TO DICTATE
CORRECTIONAL POLICY BUT ONLY TO INDICATE THE BROAD CONTOURS OF THE
APPROACH THAT I THINK SHOULD BE AVAILABLE TO THE BUREAU.  I WOULD
AFFIRM THAT PORTION OF THE JUDGMENT OF THE DISTRICT COURT AS AFFIRMED
BY THE COURT OF APPELAS THAT INVALIDATES THE ABSOLUTE BAN AGAINST
PRISIONER-PRESS INTERVIEWS, BUT REMAND THE CASE WITH INSTRUCTIONS TO
ALLOW THE BUREAU TO DEVISE A NEW POLICY IN ACCORDNACE WITH ITS OWN
NEEDS AND WITH THE GUIDELINES SET FORTH IN THIS OPINION. 

        V 

THE COURT'S RESOLUTION OF THIS CASE HAS THE VIRTUE OF SIMPLICITY. 
BECAUSE THE BUREAU'S INTERVIEW BAN DOES NOT RESTRICT SPEECH OR PROHIBIT
PUBLICATION OR IMPOSE ON THE PRESS ANY SPECIAL DISABILITY, IT IS NOT
SUSCEPTIBLE TO CONSTITUTIONAL ATTACK.  THIS ANALYSIS DELINEATES THE
OUTER BOUNDARIES OF THE FIRST AMENDMENT CONCERNS WITH UNAMBIGUOUS
CLARITY.  IT OBVIATES ANY NEED TO ENTER THE THICKET OF A PARTICULAR
FACTUAL CONTEXT IN ORDER TO DETERMINE THE EFFECT ON THE FIRST AMENDMENT
VALUES OF A NONDISCRIMINATORY RESTRAINT ON PRESS ACCESS TO
INFORMATION.  AS ATTRACTIVE AS THIS APPROACH MAY APPEAR, I CANNOT JOIN
IT.  I BELIEVE THAT WE MUST LOOK BEHIND BRIGHT-LINE GENERALITIES,
HOWEVER SOUND THEY MAY SEEM IN THE ABSTRACT, AND SEEK THE MEANING OF
FIRST AMENDMENT GUARANTEES IN LIGHT OF THE UNDERLYING REALITIES OF A
PARTICULAR ENVIRONMENT.  INDEED, IF WE ARE TO PRESERVE FIRST AMENDMENT
VALUES AMID THE COMPLEXITIES OF A CHANGING SOCIETY, WE CAN DO NO LESS. 

/1/  THROUGHOUT THIS OPINION I USE THE TERMS "NEWS MEDIA" AND
"PRESS" TO REFER GENERALLY TO BOTH PRINT AND BROADCAST JOURNALISM.  OF
COURSE, THE USE OF TELEVISION EQUIPMENT IN PRISONS PRESENTS SPECIAL
PROBLEMS THAT ARE NOT BEFORE THE COURT IN THIS CASE. 

/2/  IN AT LEAST TWO INSTANCES, FEDERAL WARDENS HAVE PERMITTED
NEWSMEN TO INTERVIEW RANDOMLY SELECTED GROUPS OF INMATES.  APPARENTLY,
SUCH OCCURRENCES ARE NOT WIDESPREAD, AND THE BASIS FOR THEM IS
UNCLEAR.  NEITHER IN EXPRESS TERMS NOR BY IMPLICATION DOES THE POLICY
STATEMENT AUTHORIZE SUCH GROUP INTERVIEWS, AND THE GOVERNMENT DOES NOT
SUGGEST THAT THE BUREAU OF PRISONS OFFICIALLY APPROVES THE PRACTICE. 

/3/  WRITING FOR THE COURT OF APPEALS, JUDGE MCGOWAN ATTRIBUTED THIS
SPECIAL CARE TO DEVELOP AN UNUSUALLY ENLIGHTENING EVIDENTIARY RECORD TO
THE "GREAT RESPECT WHICH THE FEDERAL JUDICIARY ENTERTAINS FOR THE
BUREAU BY REASON OF ITS LONG AND CONTINUOUS HISTORY OF DISTINGUISHED
AND ENLIGHTENED LEADERSHIP...."  161 U.S. APP. D.C. 75, 77, 494 F.2D
994, 996.  THIS IS A SENTIMENT WHICH I FULLY SHARE, FOR THE BUREAU HAS
LONG BEEN A CONSTRUCTIVE LEADER IN PRISON REFORM. 

/4/  THE COURT RECEIVED TESTIMONY FROM THREE EXPERIENCED REPORTERS,
TWO ACADEMIC JOURNALISTS, AND AN ATTORNEY WITH SPECIAL EXPERTISE IN
THIS AREA.  THE REPORTERS WERE RESPONDENT BEN H. BAGDIKIAN, A
WASHINGTON POST REPORTER EXPERIENCED IN COVERING PRISONS AND
INTERVIEWING INMATES; TIMOTHY LELAND, A PULITZER PRIZE WINNER WHO IS
ASSISTANT MANAGING EDITOR OF THE BOSTON GLOBE AND HEAD OF ITS
INVESTIGATIVE REPORTING TEAM; AND JOHN W. MACHACEK, A REPORTER FOR THE
ROCHESTER TIMES-UNION, WHO WON A PULITZER PRIZE FOR HIS COVERAGE OF THE
ATTICA PRISON RIOT.  THE ACADEMIC JOURNALISTS WERE ELIE ABEL, DEAN OF
THE GRADUATE SCHOOL OF JOUNALISM OF COLUMBIA UNIVERSITY; AND ROY M.
FISHER, DEAN OF THE SCHOOL OF JOURNALISM OF THE UNIVERSITY OF MISSOURI
AND FORMER EDITOR OF THE CHICAGO DAILY NEWS.  THE SIXTH WITNESS WAS
ARTHUR L. LIMAN, AN ATTORNEY WHO SERVED AS GENERAL COUNSEL TO THE NEW
YORK STATE SPECIAL COMMISSION ON ATTICA.  IN THAT CAPACITY HE
SUPERVISED AN INVESTIGATION INVOLVING 1,600 INMATE INTERVIEWS, AT LEAST
75 OF WHICH HE CONDUCTED PERSONALLY. 

/5/  BOTH DEAN ABLE AND DEAN FISHER TESTIFIED THAT THE PERSONAL
INTERVIEW IS SO INDISPENSABLE TO EFFECTIVE REPORTING THAT THE
DEVELOPMENT OF INTERVIEWING TECHNIQUES OCCUPIES A CENTRAL PLACE IN THE
CURRICULA OF PROFESSIONAL JOUNALISM SCHOOLS. 

/6/  IN RECOUNTING HIS EXPERIENCE AS GENERAL COUNSEL TO THE NEW YORK
STATE SPECIAL COMMISSION ON ATTICA, ARTHUR L. LIMAN GAVE THE FOLLOWING
TESTIMONY: 

"WE FOUND THAT IN THE GROUP INTERVIEWS THE INMATES TENDED TO GIVE US
RHETORIC, RATHER THAN FACTS; AND THAT . . . IN THE INTEREST OF SHOWING
SOLIDARITY, INMATES WERE MAKING SPEECHES TO US RATHER THAN CONFIDING
WHAT I KNEW IN MAY CASES TO BE THE FACT. 

"I SHOULD ADD THE THE BASIC PROBLEM IN CONDUCTING INTERVIEWS AT A
PRISON IS THAT IT IS A SOCIETY IN WHICH INMATES FACE SANCTIONS AND
REWARDS NOT JUST FROM THE ADMINISTRATION BUT FROM OTHER INMATES; AND
THAT WHEN AN INMATE SEES YOU IN PRIVATE, HE TELL YOU THINGS ABOUT THE
ADMINISTRATION THAT MAY NOT ONLY BE UNFAVORABLE BUT MAY IN MANY CASES
BE FAVORABLE.  I FOUND THAT WHEN WE SAW THEM IN GROUP, THERE WAS A
TENDENCY TO SAY NOTHING FAVORABLE ABOUT THE ADMINISTION AND INSTEAD
SMILPLY TO MAKE A SPEECH ABOUT HOW HORRIBLE CONDITIONS WERE.  IN FACT,
MANY OF THE INMATES WHO WOULD SAY THIS IN GROUP WOULD SAY SOMETHING
DIFFERENT WHEN THEY WERE SEEN ALONE."  1 APP. 290 - 291.     "THERE IS
SOMETHING WHICH IS NOT STRESSED IN OUR DESCRIPTION OF CONDITIONS
BECAUSE WE FOUND IT NOT TO BE A MAJOR FACTOR AT ATTICA, AND THAT IS THE
QUESTION OR THE ISSUE OF PHYSICAL BRUTALITY TOWARD INMATES.  THE PRESS,
BEFORE THIS INVESTIGATION, HAD PLAYED THAT UP AS THE MAJOR GRIEVANCE AT
ATTICA.  WE FOUND, WHEN WE TALKED TO INMATES PRIVATELY, THAT THE
INCIDENCE OF PHYSICAL CONFRONTATION BETWEEN OFFICERS AND INMATES WAS
RATHER LIMITED, AND THAT THE REAL GRIEVANCE WAS NOT ABOUT THOSE
INCIDENTS, BUT RATHER ABOUT WHAT THEY WOULD FEEL WAS A FORM OF PSYCHIC
REPRESSION, DEPRIVING PEOPLE OF THEIR MANHOOD.  THEREFORE, I THINK A
LOT OF THE MYTH ABOUT PHYSICAL BEATINGS WAS DISPELLED."  ID., AT 292. 

/7/  THE HISTORY OF OUR PRISONS IS IN LARGE MEASURE A CHRONICLE OF
PUBLIC INDIFFERENCE AND NEGLECT.  THE CHIEF JUSTICE, WHO HAS PROVIDED
ENLIGHTENING LEADERSHIP ON THE SUBJECT, HAS SPOKEN OUT FREQUENTLY
AGAINST THE IGNORANCE AND APATHY THAT CHARACTERIZES OUR NATION'S
APPROACH TO THE PROBLEMS OF OUR PRISONS: 

"YET IN SPITE OF ALL THIS DEVELOPMENT OF THE STEP-BY-STEP DETAILS IN
THE CRIMINAL ADVERSARY PROCESS, WE CONTINUE, AT THE TERMINATION OF THAT
PROCESS, TO BRUSH UNDER THE RUG THE PROBLEMS OF THOSE WHO ARE FOUND
GUILTY AND SUBJECT TO CRIMINAL SENTENCE.  IN A VERY IMMATURE WAY, WE
SEEM TO WANT TO REMOVE THE PROBKLEM FROM PUBLIC CONSCIOUSNESS. 

"IT IS A MELANCHOLY TRUTH THAT HAS TAKEN THE TRAGIC PRISON OUTBREAKS
OF THE PAST THREE YEARS TO FOCUS WIDESPREAD PUBLIC ATTENTION ON THIS
PROBLEM."  BURGER, OUR OPTIONS ARE LIMITED, 18 VILL.  L. REV. 165, 167
(1972).  SEE W. BURGER, FOR WHOM THE BELL TOLLS, REPRINTED AT 25 RECORD
OF N.Y.C.B.A. (SUPP.) 14, 18, 23-24 (1970). 

/8/  INDEED, PROFESSOR MEIKLEJOHN IDENTIFIED THIS ASPECT OF THE
FIRST AMENDMENT AS ITS PARAMOUNT VALUE:  "JUST SO FAR AS, AT ANY POINT,
THE CITIZENS WHO ARE TO DECIDE AN ISSUE ARE DENIED ACQUAINTANCE WITH
INFORMATION OR OPINION OR DOUBT, OR DISBELIEF OR CRITICISM WHICH IS
RELEVANT TO THAT ISSUE, JUST SO FAR THE RESULT MUST BE ILL-CONSIDERED,
ILL-BALANCED PLANNING FOR THE GENERAL GOOD.  IT IS THAT MUTILATION OF
THE THINKING PROCESS OF THE COMMUNITY AGAINST WHICH THE FIRST AMENDMENT
TO THE CONSTITUTION IS DERECTED.  THE PRINCIPLE OF THE FREEDOM OF
SPEECH SPRINGS FROM THE NECESSITIES OF THE PROGRAN OF SELF
GOVERNMENT."  A. MEIKLEJOHN, FREE SPEECH 26 (1948) (EMPHASIS IN
ORIGINAL). 

/9/  THE DISTRICT COURT FRAMED THIS STANDARD IN QUESTION FORM: "IN
SHORT, ARE THE LIMITATIONS PLACED ON FIRST AMENDMENT FREEDOMS NO
GREATER THAN IS NECESSARY TO PROTECT THE GOVERNMENTAL INTERESTS
ASSERTED?"  357 F.SUPP.  770, 773. 

/10/  THE FOLLOWING EXCERPT FROM THE EXAMINATION OF HANS W. MATTICK,
PROFESSOR OF CRIMINAL JUSTICE AND DIRECTOR OF THE CENTER FOR RESEARCH
IN CRIMINAL JUSTICE AT THE UNIVERITY OF ILLINOIS, EXPLAINS THE BASES
FOR INMATE LEADERSHIP: 

     "Q WHAT ARE THE PARTICULAR TALENTS OR FACTORS THAT WOULD LEAD

  INMATES TO LOOK UPON PARTICULAR PERSONS AMONG THEM AS LEADERS? 

  "A WELL, IT WOULD DEPEND IN PART ON THE NATIVE TALENTS OF THE

  PERSON, WHETHER HE WAS REASONABLY ARTICULATE, WHETHER HE HAS

  REASONABLE SOCIAL SKILLS.  BUT THAT WOULDN'T BE SUFFICIENT. 

"HE WOULD ALSO HAVE TO HAVE SOME SIGNIFICANT POSITION IN THE

  PRISON, WHETHER THAT WOULD BE THE CLERK OF A CELLHOUSE OR WHETHER

  THAT WOULD BE THE ASSISTANT TO A SHOP FOREMEN OR WHETHER HE WOULD

  BE A PERSON WHO WAS A PORTER OR A RUNNER, WHICH LOOK LIKE A LOW

  STATUS POSITION TO OUTSIDERS, BUT WHICH POSITION HAS GREAT

  MOBILITY AND THEREFORE YOU CAN BECOME A MESSAGE SENDER AND A

  MESSAGE CARRIER, OR PERSONS WHO WORK IN AREAS THAT GIVE THEM

  ACCESS TO GOODS IN WHAT IS ESSENTIALLY A SCARCITY ECONOMY. 

     "SO PEOPLE WHO WORK IN THE KITCHENS OR BAKERY OR WHERE OTHER

  SCARCE SUPPLIES ARE AND THERE CAN DISTRIBUTE THEM ILLEGITIMATELY

  OR SERVE OTHER PURPOSES OF THAT KIND, THEY TEND TO HAVE

  LEADERSHIP. 

     "Q DOES THE FACT THAT AN INMATE IS WELL KNOWN OUTSIDE OF OF

  PRISON TEND TO MAKE HIM A LEADER WITHIN A PRISON AMONG THE

  INMATES WITHIN THE PRISON? 

     "A IT DEPENDS A GREAT DEAL ON THE CIRCUMSTANCES; THAT IS, FOR

  INSTANCE, NOTORIETY BY ITSELF CAN'T BESTOW LEADERSHIP. 

     "FOR INSTANCE, SIRHAN SIRHAN, FOR EXAMPLE, OR RICHARD SPECK
ARE

  SIMPLY NOTORIOUS AND THAT DOESN'T BESTOW LEADERSHIP QUALITIES ON

  THEM.  OR SOMEONE LIKE AL CAPONE, FOR EXAMPLE, MAY HAVE HAD GREAT

  STATUS OUTSIDE OF THE PRISON, BUT WHEN HE WAS IN PRISON, HE

  BECAME THE OBJECT OF REVENGE AND ATTACKS BY PERSONS WHO WANTED TO

  SETTLE OLD SCORES, BECAUSE IT WAS FELT THAT HE COULDN'T IMPLEMENT

  ENOUGH POWER TO RETALIATE IN TURN. 

     "ON THE OTHER HAND, THERE WERE PRESONS, CONFIDENCE MEM OR

  SPECTACULAR BURGLARS OR ARMED ROBBERS WITH BIG SCORES OR

  SOMETHING OF THAT KIND, WHERE THEIR REPUTATION PRECEDES THEM AND

FOLLOWS THEM INTO PRISON, AND THAT THEN IS COMBINED, AND ALSO

  WITH CERTAIN TALENTS AND SOCIAL SKILL AND ARTICULATENESS, AND IF

  IT ALSO LOOKS AS THOUGH THEY 

     HAVE A FUTURE IN THE FREE COMMUNITY, EITHER IN THE
ILLEGITIMATE

WORLD OR THE LEGITIMATE WORLD, THAT CAN PLAY A PART IN THE

  PHENOMENON THAT WE CALL LEADERSHIP."  2 APP. 580 - 581. 

/11/  THE OTHER OTHER CONSIDERATIONS ADVANCED BY THE BUREAU DO NOT
JUSTIFY AN ABSOLUTE INTERVIEW BAN BUT ONLY INDICATE THE DIFFICULTIES OF
CASE-BY-CASE EVALUATION OF INTERVIEW REQUESTS.  THESE ARGUMENTS ARE
ADDRESSED IN PART IV. 

/12/  THESE FIVE JURISDICTIONS ARE CALIFORNIA, CONNECTICUT,
KENTUCKY, VIRGINIA, AND WISCONSIN. 

/13/  THIS APPROACH IS FOLLOWED IN ALASKA, GEORGIA, MONTANA, NEW
JERSEY, OREGON, PENNSYLVANIA, AND SOUTH CAROLINA. 

/14/  THE JURISDICTRIONS THAT GENERALLY PERMIT PERSONAL INTERVIEWS
ARE ILLINOIS, MAINE, MARYLAND, MASSACHUSETTS, NEBRASKA, NORTH CAROLINA,
OHIO, VERMONT, IOWA, NEW YORK CITY, AND THE DISTRCT OF COLUMBIA. 
ADDITIONALLY, ONE JURISDICTON, NEW MEXICO, FOLLOWS A UNIQUE POLICY THAT
DEFIES CATEGORIZATION. 

/15/  THE COURT RECEIVED SUCH EVIDENCE FROM PENAL ADMINISTRATORS IN
ILLINOIS, MASSACHUSETTS, NEW YORK CITY, AND THE DISTRICT OF COLUMBIA. 

/16/  THE DISTRICT COURT ORDERED THAT THE BUREAU DRAFT REGULATIONS
GENERALLY PERMITTING PRESS INTERVIEWS AND THAT EXCEPTIONS TO THAT
POLICY "BE PRECISELY DRAWN TO PROHIBIT AN INTERVIEW ONLY WHERE IT CAN
BE ESTABLISHED AS A MATTER OF PROBABILITY ON THE BASIS OF ACTUAL
EXPERIENCE THAT SERIOUS ADMINISTRATIVE OR DISCIPLINARY PROBLEMS ARE, IN
THE JUDGMENT OF THE PRISON ADMINISTRATORS DIRECTLY CONCERNED, LIKELY TO
BE DIRECTLY AND IMMEDIATELY CAUSED BY THE INTERVIEW BECAUSE OF EITHER
THE DEMONSTRATED BEHAVIOR OF THE INMATE CONCERNED OR SPECIAL CONDITIONS
EXISTING AT THE INMATE'S INSTITUTION AT THE PARTICULAR TIME THE
INTERVIEW IS REQUESTED."  357 F. SUPP. 779, 784.  THE GOVERNMENT
INTERPRETED THIS ORDER TO REQUIRE THAT EVERY DENIAL OF AN INTERVIEW
REQUEST BE SUPPORTED BY OBJECTIVE EVIDENCE AND ARGUED THAT SUCH A
REQUIREMENT WOULD INVADE THE PROPER EXERCISE OF DISCRETION BY PRISON
ADMINISTRATORS AND UNDERCUT THEIR AUTHORITY TO RESPOND TO PERCEIVED
THREATS TO INSTITUTIONAL SECURITY AND ORDER.  APPARENTLY RESPONDING TO
THESE CONCERNS, THE COURT OF APPEALS DELETED THE REFERENCES TO
"LIKELIHOOD"  AND "PROBABILITY" AND RECAST THE RELEVANT PORTION OF THE
ORDER TO THE LANGUAGE OUOTED IN THE TEXT.  THE THRUST OF THE ORDER
REMAINS, HOWEVER, THAT PRISON ADMINISTRATORS MUST DECIDE ON AN AD HOC
BASIS WHETHER TO GRANT EACH PARTICULAR REQUEST FOR AN INTERVIEW. 

/17/  THE EXPERIENCE OF PRISON SYSTEMS THAT HAVE GENERALLY ALLOWED
PRESS INTERVIEWS DOES NOT SUGGEST THAT THE BUREAU WOULD BE FLOODED WITH
INTERVIEW REQUESTS.  IF, HOWEVER, THE NUMBER OF REQUESTS WERE
EXCESSIVE, PRISON ADMINISTRATORS WOULD HAVE TO DEVISE SOME SCHEME FOR
ALLOCATING INTERVIEWS AMONG MEDIA REPRESENTATIVES.  I HAVE ASSUMED
THROUGHOUT THIS DISCUSSION THAT PRIORITY OF REQUEST WOULD CONTROL, BUT
I DO NOT MEAN TO FORECLOSE OTHER POSSIBILITIES.  IT IS A FAIRLY COMMON
PRACTICE FOR MEDIA REPRESENTATIVES TO FORM POOLS THAT ALLOW MANY
NEWSMEN TO PARTICIPATE, EITHER IN PERSON OR BY PROXY, IN A NEWS EVENT
FOR WHICH PRESS ACCESS IS LIMITED.  THE BUREAU COULD CERTAINLY
COOPERATE WITH THE NEWS MEDIA IN THE ADMINISTRATION OF SUCH A PROGRAM
WITHOUT FAVORITISM OR EXCLUSIVITY TO ENSURE WIDESPREAD AND DEPENDABLE
DISSEMINATION OF INFORMATION ABOUT OUR PRISONS. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEF WERE ACTING ASSISTANT ATTORNEY GENERAL JAFFE, EDMUND W.
KITCH, AND LEONARD SCHAITMAN. 

JOSEPH A. CALIFANO, JR., ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM
ON THE BRIEF WERE CHARLES H. WILSON, JR., AND RICHARD M. COOPER.  /1/ 

/1/  WILLIAM H. ALLEN FILED A BRIEF FOR THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS LEGAL DEFENSE AND RESEARCH FUND AS AMICUS CURIAE
URGING AFFIRMANCE. 
..END :
























COMMISSIONER V. IDAHO POWER CO., 418 U.S. 1 


       COMMISSIONER OF INTERNAL REVENUE V. IDAHO POWER CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 73 - 263.  ARGUED FEBRUARY 27, 1974--DECIDED JUNE 24,

           1974; 477 F.2D 688, REVERSED. 


    SECTION 167 (A) OF THE INTERNAL REVENUE CODE OF 1954 ALLOWS A

  DEPRECIATION DEDUCTION FROM GROSS INCOME FOR "PROPERTY USED IN

  THE (TAXPAYER'S) TRADE OR BUSINESS" OR "HELD FOR THE PRODUCTION

  OF INCOME," WHEREAS 263 (A)(1) OF THE CODE DISALLOWS A DEDUCTION

  FOR "(ANY AMOUNT PAID OUT FOR NEW BUILDINGS OR FOR PERMANENT

  IMPROVEMENTS OR BETTERMENTS MADE TO INCREASE THE VALUE OF ANY

  PROPERTY OR ESTATE," EXPENDITURES WHICH, THE REGULATIONS STATE,

  INCLUDE THE "COST OF ACQUISITION, CONSTRUCTION, OR ERECTION OF

BUILDINGS."  SECTION 161 MAKES THE DEDUCTIONS SPECIFIED IN THAT

  PART OF THE CODE, INCLUDING 167(A), SUBJECT TO THE EXCEPTIONS

  PROVIDED IN THE PART INCLUDING 263.  RESPONDENT PUBLIC UTILITY

  CLAIMED A DEDUCTION FROM GROSS INCOME UNDER 167(A) FOR ALL THE

  DEPRECIATION FOR THE YEAR ON ITS TRANSPORTATION EQUIPMENT (CARS,

  TRUCKS, ETC.), INCLUDING THAT PORTION ATTRIBUTABLE TO ITS USE IN

  CONSTRUCTING CAPITAL FACILITIES, ALTHOUGH ON ITS BOOKS, AS

  REQUIRED BY THE REGULATORY AGENCIES, IT CHARGED SUCH EQUIPMENT,

  TO THE EXTENT IT WAS USED IN CONSTRUCTION, TO THE CAPITAL ASSETS

  SO CONSTRUCTED.  THE COMMISSIONER OF INTERNAL REVENUE DISALLOWED

  THE DEDUCTION FOR THE CONSTRUCTION-RELATED DEPRECIATION, RULING

  THAT HAT EPRECIATION WAS A NONDEDUCTIBLE CAPITAL EXPENDITURE

  UNDER 263 (A).  THE COMMISSIONER WAS UPHELD BY THE TAX COURT, BUT

  THE COURT OF APPEALS REVERSED, HOLDING THAT A DEDUCTION EXPRESSLY

  ENUMERATED IN THE CODE, SUCH AS THAT FOR DEPRECIATION, MAY

  PROPERLY BE TAKEN EVEN IF IT RELATES TO A CAPITAL ITEM, AND THAT

  263(A)(1) WAS INAPPLICABLE BECAUSE DEPRECIATION IS NOT AN "AMOUNT

  PAID OUT" AS REQUIRED BY THAT SECTION.  HELD:  THE EQUIPMENT

  DEPRECIATION ALLOCABLE TO THE TAXPAYER'S CONSTRUCTION OF CAPITAL

  FACILITIES MUST BE CAPITALIZED UNDER 263(A)(1).  PP. 10 - 19. 

     (A) ACCEPTED ACCOUNTING PRACTICE AND ESTABLISHED TAX
PRINCIPLES

  REQUIRE THE CAPITALIZATION OF THE COST INCURRED IN A TAXPAYER'S

  CONSTRUCTION OF CAPITAL FACILITIES.  THE PURPOSE OF DEPRECIATION

  ACCOUNTING IS THE ALLOCATION OF THE EXPENSE OF USING AN ASSET

  OVER THE TAX PERIODS BENEFITED BY THAT ASSET.  PP. 10 - 13. 

   (B) CONSTRUCTION-RELATED DEPRECIATION IS NOT UNLIKE EXPENDITURE

  FOR OTHER CONSTRUCTION-RELATED ITEMS, SUCH AS CONSTRUCTION

  WORKERS' WAGES, WHICH MUST BE TREATED AS PART OF THE COST OF

  ACQUIRING A CAPITAL ASSET.  THE SIGNIFICANT FACT IS THAT THE

  EXHAUSTION OF THE CONSTRUCTION EQUIPMENT DOES NOT REPRESENT THE

  FINAL DISPOSITION OF THE TAXPAYER'S INVESTMENT IN THAT EQUIPMENT;

  RATHER SUCH INVESTMENT IS ASSIMILATED INTO THE COST OF THE

  CAPITAL ASSET CONSTRUCTED, AND THIS CAPITALIZATION PREVENTS THE

  DISTORTION OF INCOME THAT WOULD OTHERWISE OCCUR IF DEPRECIATION

PROPERLY ALLOCABLE TO ASSET ACQUISITION WERE DEDUCTED FROM GROSS

  INCOME CURRENTLY REALIZED.  PP. 13 - 14. 

     (C) CAPITALIZATION OF CONSTRUCTION-RELATED EQUIPMENT

  DEPRECIATION BY THE TAXPAYER WHICH DOES ITS OWN CONSTRUCTION WORK

  MAINTAINS TAX PARITY WITH THE TAXPAYER WHICH HAS SUCH WORK DONE

  INDEPENDENTLY.  P. 14. 

     (D) WHERE A TAXPAYER'S GENERALLY ACCEPTED METHOD OF ACCOUNTING

  IS MADE COMPULSORY BY THE REGULATORY AGENCY AND THAT METHOD

  CLEARLY REFLECTS INCOME, AS HERE, IT IS ALMOST PRESUMPTIVELY

CONTROLLING OF FEDERAL INCOME TAX CONSEQUENCES.  PP. 14 - 15. 

     (E) CONSIDERING 263(A)(1)'S LITERAL LANGUAGE IN DENYING A

  DEDUCTION FOR "(ANY AMOUNT PAID OUT" FOR CONSTRUCTION OR

  PERMANENT IMPROVEMENT OF FACILITIES, AND ITS PURPOSE TO REFLECT

  THE BASIC PRINCIPLE THAT A CAPITAL EXPENDITURE MAY NOT BE

  DEDUCTED FROM CURRENT INCOME, AS WELL AS THE REGULATIONS

  INDICATING THAT FOR PURPOSES OF 263(A)(1) "AMOUNT PAID OUT"

  EQUATES WITH "COST INCURRED," THERE IS NO QUESTION THAT THE COST

  OF THE TRANSPORTATION EQUIPMENT WAS "PAID OUT" IN THE SAME MANNER

  AS THE COST OF OTHER CONSTRUCTION-RELATED ITEMS, SUCH AS

  SUPPLIES, MATERIALS, AND WAGES, WHICH THE TAXPAYER CAPITALIZED. 

  PP. 16 - 17. 

     (F) THE PRIORITY-ORDERING DIRECTIVE OF 161 REQUIRES THAT

  263(A)'S CAPITALIZATION PROVISION TAKE PRECEDENCE, ON THE FACTS,

  OVER 167(A).  PP. 17 - 19. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BRENNAN, STEWART, WHITE, MARSHALL, POWELL, AND REHNQUIST,
JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 19. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE SOLE ISSUE WHETHER, FOR FEDERAL INCOME TAX
PURPOSES, A TAXPAYER IS ENTITLED TO A DEDUCTION FROM GROSS INCOME,
UNDER 167(A) OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. 167(A),
/1/  FOR DEPRECIATION ON EQUIPMENT THE TAXPAYER OWNS AND USES IN THE
CONSTRUCTION OF ITS OWN CAPITAL FACILITIES, OR WHETHER THE
CAPITALIZATION PROVISION OF 263(A)(1) OF THE CODE, 26 U.S.C. 263(A)(1),
/2/  BARS THE DEDUCTION. 

THE TAXPAYER CLAIMED THE DEDUCTION, BUT THE COMMISSIONER OF INTERNAL
REVENUE DISALLOWED IT.  THE TAX COURT (SCOTT, J., IN AN OPINION NOT
REVIEWED BY THE FULL COURT) UPHELD THE COMMISSIONER'S DETERMINATION. 
29 T.C.M. 383 (1970).  THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT, DECLINING TO FOLLOW A COURT OF CLAIMS DECISION, SOUTHERN
NATURAL GAS CO. V. UNITED STATES, 188 CT.CL. 302, 372 - 380, 412 F.2D
1222, 1264 - 1269 (1969), REVERSED.  477 F.2D 688 (1973).  WE GRANTED
CERTIORARI IN ORDER TO RESOLVE THE APPARENT CONFLICT BETWEEN THE COURT
OF CLAIMS AND THE COURT OF APPEALS.  414 U.S. 999 (1973). 

        I 

NEARLY ALL THE RELEVANT FACTS ARE STIPULATED.  THE TAXPAYER
RESPONDENT, IDAHO POWER COMPANY, IS A MAINE CORPORATION ORGANIZED IN
1915, WITH ITS PRINCIPAL PLACE OF BUSINESS AT BOISE, IDAHO.  IT IS A
PUBLIC UTILITY ENGAGED IN THE PRODUCTION, TRANSMISSION, DISTRIBUTION,
AND SALE OF ELECTRIC ENERGY.  THE TAXPAYER KEEPS ITS BOOKS AND FILES
ITS FEDERAL INCOME TAX RETURNS ON THE CALENDAR YEAR ACCRUAL BASIS.  THE
TAX YEARS AT ISSUE ARE 1962 AND 1963. 

FOR MANY YEARS, THE TAXPAYER HAS USED ITS OWN EQUIPMENT AND
EMPLOYEES IN THE CONSTRUCTION OF IMPROVEMENTS AND ADDITIONS TO ITS
CAPITAL FACILITIES.  /3/  THE MAJOR WORK HAS CONSISTED OF TRANSMISSION
LINES, TRANSMISSION SWITCHING STATIONS, DISTRIBUTION LINES,
DISTRIBUTION STATIONS, AND CONNECTING FACILITIES. 

DURING 1962 AND 1963, THE TAX YEARS IN QUESTION, TAXPAYER OWNED AND
USED IN ITS BUSINESS A WIDE VARIETY OF AUTOMATIVE TRANSPORTATION
EQUIPMENT, INCLUDING PASSENGER CARS, TRUCKS OF ALL DESCRIPTIONS, POWER
OPERATED EQUIPMENT, AND TRAILERS.  RADIO COMMUNICATION DEVICES WERE
AFFIXED TO THE EQUIPMENT AND WERE USED IN ITS DAILY OPERATIONS.  THE
TRANSPORTATION EQUIPMENT WAS USED IN PART FOR OPERATION AND MAINTENANCE
AND IN PART OF THE CONSTRUCTION OF CAPITAL FACILITIES HAVING A USEFUL
LIFE OF MORE THAN ONE YEAR. 

ON ITS BOOKS, THE TAXPAYER USED VARIOUS METHODS OF CHARGING COSTS
INCURRED IN CONNECTION WITH ITS TRANSPORTATION EQUIPMENT EITHER TO
CURRENT EXPENSE OR TO CAPITAL ACCOUNTS.  TO THE EXTENT THE EQUIPMENT
WAS USED IN CONSTRUCTION, THE TAXPAYER CHARGED DEPRECIATION OF THE
EQUIPMENT, AS WELL AS ALL OPERATING AND MAINTENANCE COSTS (OTHER THAN
PENSION CONTRIBUTIONS AND SOCIAL SECURITY AND MOTOR VEHICLE TAXES) TO
THE CAPITAL ASSETS SO CONSTRUCTED.  THIS WAS DONE EITHER DIRECTLY OR
THROUGH CLEARING ACCOUNTS IN ACCORDANCE WITH PROCEDURES PRESCRIBED BY
THE FEDERAL POWER COMMISSION AND ADOPTED BY THE IDAHO PUBLIC UTILITIES
COMMISSION. 

FOR FEDERAL INCOME TAX PURPOSES, HOWEVER, THE TAXPAYER TREATED THE
DEPRECIATION ON TRANSPORTATION EQUIPMENT DIFFERENTLY.  IT CLAIMED AS A
DEDUCTION FROM GROSS INCOME ALL THE YEAR'S DEPRECIATION ON SUCH
EQUIPMENT, INCLUDING THAT PORTION ATTRIBUTABLE TO ITS USE IN
CONSTRUCTING CAPITAL FACILITIES.  THE DEPRECIATION WAS COMPUTED ON A
COMPOSITE LIFE OF 10 YEARS AND UNDER STRAIGHT-LINE AND DECLINING
BALANCE METHODS.  THE OTHER OPERATING AND MAINTENANCE COSTS THE
TAXPAYER HAD CHARGED ON ITS BOOKS TO CAPITAL WERE NOT CLAIMED AS
CURRENT EXPENSES AND WERE NOT DEDUCTED. 

TO SUMMARIZE:  ON ITS BOOKS, IN ACCORDANCE WITH FEDERAL POWER
COMMISSION-IDAHO PUBLIC UTILITIES COMMISSION PRESCRIBED METHODS, THE
TAXPAYER CAPITALIZED THE CONSTRUCTION-RELATED DEPRECIATION, BUT FOR
INCOME TAX PURPOSES THAT DEPRECIATION INCREMENT WAS CLAIMED AS A
DEDUCTION UNDER 167 (A).  /4/ 

UPON AUDIT, THE COMMISSIONER OF INTERNAL REVENUE DISALLOWED THE
DEDUCTION FOR THE CONSTRUCTION-RELATED DEPRECIATION.  HE RULED THAT
THAT DEPRECIATION WAS A NONDEDUCTIBLE CAPITAL EXPENDITURE TO WHICH
263(A)(1) HAD APPLICATION.  HE ADDED THE AMOUNT OF THE DEPRECIATION SO
DISALLOWED TO THE TAXPAYER'S ADJUSTED BASIS IN ITS CAPITAL FACILITIES,
AND THEN ALLOWED A DEDUCTION FOR AN APPROPRIATE AMOUNT OF DEPRECIATION
ON THE ADDITION, COMPUTED OVER THE USEFUL LIFE (30 YEARS OR MORE) OF
THE PROPERTY CONSTRUCTED.  A DEDUCTION FOR DEPRECIATION OF THE
TRANSPORTATION EQUIPMENT TO THE EXTENT OF ITS USE IN DAY-TO-DAY
OPERATION AND MAINTENANCE WAS ALSO ALLOWED.  THE RESULT OF THESE
ADJUSTMENTS WAS THE DISALLOWANCE OF DEPRECIATION, AS CLAIMED BY THE
TAXPAYER ON ITS RETURNS, IN THE NET AMOUNTS OF $140,429.75 AND
$96,811.95 FOR 1962 AND 1963, RESPECTIVELY.  THIS GAVE RISE TO ASSERTED
DEFICIENCIES IN TAXPAYER'S INCOME TAXES FOR THOSE TWO YEARS OF
$73,023.47 AND $50,342.21. 

THE TAX COURT AGREED WITH THE DECISION OF THE COURT OF CLAIMS IN
SOUTHERN NATURAL GAS, SUPRA, AND DESCRIBED THAT HOLDING AS ONE TO THE
EFFECT THAT "DEPRECIATION ALLOCABLE TO THE USE OF THE EQUIPMENT IN THE
CONSTRUCTION OF CAPITAL IMPROVEMENTS WAS NOT DEDUCTIBLE IN THE YEAR THE
EQUIPMENT WAS SO USED BUT SHOULD BE CAPITALIZED AND RECOVERED OVER THE
USEFUL LIFE OF THE ASSETS CONSTRUCTED."  29 T.C.M.,AT 386.  THE TAX
COURT, ACCORDINGLY, HELD THAT THE COMMISSIONER "PROPERLY DISALLOWED AS
A DEDUCTION . . . THIS ALLOCABLE PORTION OF DEPRECIATION AND THAT SUCH
AMOUNT SHOULD BE CAPITALIZED AS PART OF (TAXPAYER'S) BASIS IN THE
PERMANENT IMPROVEMENTS IN THE CONSTRUCTION OF WHICH THE EQUIPMENT WAS
USED."  IBID. 

THE COURT OF APPEALS, ON THE OTHER HAND, PERCEIVED IN THE INTERNAL
REVENUE CODE OF 1954 THE PRESENCE OF A LIBERAL CONGRESSIONAL POLICY
TOWARD DEPRECIATION, THE UNDERLYING THEORY OF WHICH IS THAT CAPITAL
ASSETS USED IN BUSINESS SHOULD NOT BE EXHAUSTED WITHOUT PROVISION FOR
REPLACEMENT.  477 F.2D,AT 690 - 693.  THE COURT CONCLUDED THAT A
DEDUCTION EXPRESSLY ENUMERATED IN THE CODE, SUCH AS THAT FOR
DEPRECIATION, MAY PROPERLY BE TAKEN AND THAT "NO EXCEPTION IS MADE
SHOULD IT RELATE TO A CAPITAL ITEM."  ID., AT 693.  SECTION 263(A)(1)
OF THE CODE WAS FOUND NOT TO BE APPLICABLE BECAUSE DEPRECIATION IS NOT
AN "AMOUNT PAID OUT," AS REQUIRED BY THAT SECTION.  THE COURT FOUND
SOUTHERN NATURAL GAS UNPERSUASIVE AND FELT "CONSTRAINED TO DISTINGUISH"
IT IN REVERSING THE TAX COURT JUDGMENT.  477 F.2D,AT 695 - 696. 

THE TAXPAYER ASSERTS THAT ITS TRANSPORTATION EQUIPMENT IS USED IN
ITS "TRADE OR BUSINESS" AND THAT DEPRECIATION THEREON IS THEREFORE
DEDUCTIBLE UNDER 167(A)(1) OF THE CODE.  THE COMMISSIONER CONCEDES THAT
167 MAY BE SAID TO HAVE A LITERAL APPLICATION TO DEPRECIATION ON
EQUIPMENT USED IN CAPITAL CONSTRUCTION, /5/  BRIEF FOR PETITIONER 16,
BUT CONTENDS THAT THE PROVISION MUST BE READ IN THE LIGHT OF 263(A)(1)
WHICH SPECIFICALLY DISALLOWS ANY DEDUCTION FOR AN AMOUNT "PAID OUT FOR
NEW BUILDINGS OR FOR PERMANENT IMPROVEMENTS OR BETTERMENTS."  HE ARGUES
THAT 263 TAKES PRECEDENCE OVER 167 BY VIRTUE OF WHAT HE CALLS THE
"PRIORITY-ORDERING" TERMS (AND WHAT THE TAXPAYER DESCRIBES AS
"HOUSEKEEPING"  PROVISIONS) OF 161 OF THE CODE, 26 U.S.C. 161, /6/  AND
THAT SOUND PRINCIPLES OF ACCOUNTING AND TAXATION MANDATE THE
CAPITALIZATION OF THIS DEPRECIATION. 

IT IS WORTH NOTING THE VARIOUS ITEMS THAT ARE NOT AT ISSUE HERE. 
THE MATHEMATICS, AS SUCH, IS NOT IN DISPUTE.  THE TAXPAYER HAS
CAPITALIZED, AS PART OF ITS COST OF ACQUISITION OF CAPITAL ASSETS, THE
OPERATING AND MAINTENANCE COSTS (OTHER THAN DEPRECIATION, PENSION
CONTRIBUTIONS, AND SOCIAL SECURITY AND MOTOR VEHICLE TAXES) OF THE
TRANSPORTATION EQUIPMENT ATTRIBUTABLE TO CONSTRUCTION.  THIS IS NOT
CONTESTED.  THE COMMISSIONER DOES NOT DISPUTE THAT THE PORTION OF THE
TRANSPORTATION EQUIPMENT'S DEPRECIATION ALLOCABLE TO OPERATION AND
MAINTENANCE OF FACILITIES, IN CONTRAST WITH CONSTRUCTION THEREOF,
QUALIFIES AS A DEDUCTION FROM GROSS INCOME.  THERE IS NO DISAGREEMENT
AS TO THE ALLOCATION OF DEPRECIATION BETWEEN CONSTRUCTION AND
MAINTENANCE.  THE ISSUE, THUS COMES DOWN PRIMARILY TO A QUESTION OF
TIMING, AS THE COURT OF APPEALS RECOGNIZED, 477 F.2D,AT 692, THAT IS,
WHETHER THE CONSTRUCTION-RELATED DEPRECIATION IS TO BE AMORTIZED AND
DEDUCTED OVER THE SHORTER LIFE OF THE EQUIPMENT OR, INSTEAD, IS TO BE
AMORTIZED AND DEDUCTED OVER THE LONGER LIFE OF THE CAPITAL FACILITIES
CONSTRUCTED. 

     II 

OUR PRIMARY CONCERN IS WITH THE NECESSITY TO TREAT CONSTRUCTION
RELATED DEPRECIATION IN A MANNER THAT COMPORTS WITH ACCOUNTING AND
TAXATION REALITIES.  OVER A PERIOD OF TIME A CAPITAL ASSET IS CONSUMED
AND, CORRESPONDING OVER THAT PERIOD, ITS THEORETICAL VALUE AND UTILITY
ARE THEREBY REDUCED.  DEPRECIATION IS AN ACCOUNTING DEVICE WHICH
RECOGNIZES THAT THE PHYSICAL CONSUMPTION OF A CAPITAL ASSET IS A TRUE
COST, SINCE THE ASSET IS BEING DEPLETED.  /7/  AS THE PROCESS OF
CONSUMPTION CONTINUES, AND DEPRECIATION IS CLAIMED AND ALLOWED, THE
ASSET'S ADJUSTED INCOME TAX BASIS IS REDUCED TO REFLECT THE
DISTRIBUTION OF ITS COST OVER THE ACCOUNTING PERIODS AFFECTED.  THE
COURT STATED IN HERTZ CORP. V. UNITED STATES, 364 U.S. 122, 126 (1960):
"(THE PURPOSE OF DEPRECIATION ACCOUNTING IS TO ALLOCATE THE EXPENSE OF
USING AN ASSET TO THE VARIOUS PERIODS WHICH ARE BENEFITED BY THE
ASSET."  SEE ALSO UNITED STATES V. LUDEY, 274 U.S. 295, 300 - 301
(1927); MASSEY MOTORS, INC. V. UNITED STATES, 364 U.S. 92, 96 (1960);
FRIBOURG NAVIGATION CO. V. COMMISSIONER, 383 U.S. 272, 276 - 277
(1966).  WHEN THE ASSET IS USED TO FURTHER THE TAXPAYER'S DAY-TO-DAY
BUSINESS OPERATIONS, THE PERIODS OF BENEFIT USUALLY CORRELATE TO THE
PRODUCTION OF INCOME.  THUS, TO THE EXTENT THAT EQUIPMENT IS USED IN
SUCH OPERATIONS, A CURRENT DEPRECIATION DEDUCTION IS AN APPROPRIATE
OFFSET TO GROSS INCOME CURRENTLY PRODUCED.  IT IS CLEAR, HOWEVER, THAT
DIFFERENT PRINCIPLES ARE IMPLICATED WHEN THE CONSUMPTION OF THE ASSET
TAKES PLACE IN THE CONSTRUCTION OF OTHER ASSETS THAT, IN THE FUTURE,
WILL PRODUCE INCOME THEMSELVES.  IN THIS LATTER SITUATION, THE COST
REPRESENTED BY DEPRECIATION DOES NOT CORRELATE WITH PRODUCTION OF
CURRENT INCOME.  RATHER, THE COST, ALTHOUGH CERTAINLY PRESENTLY
INCURRED, IS RELATED TO THE FUTURE AND IS APPROPRIATELY ALLOCATED AS
PART OF THE COST OF ACQUIRING AN INCOME-PRODUCING CAPITAL ASSET. 

THE COURT OF APPEALS OPINED THAT THE PURPOSE OF THE DEPRECIATION
ALLOWANCE UNDER THE CODE WAS TO PROVIDE A MEANS OF COST RECOVERY,
KNOXVILLE V. KNOXVILLE WATER CO., 212 U.S. 1, 13 - 14 (1909), AND THAT
THIS COURT'S DECISIONS, E.G., DETROIT EDISON CO. V. COMMISSIONER, 319
U.S. 98, 101 (1943), ENDORSE A THEORY A REPLACEMENT THROUGH "A FUND TO
RESTORE THE PROPERTY."  477 F.2D,AT 691.  ALTHOUGH TAX-FREE REPLACEMENT
OF A DEPRECIATING INVESTMENT IS ONE PURPOSE OF DEPRECIATION ACCOUNTING,
IT ALONE DOES NOT REQUIRE THE RESULT CLAIMED BY THE TAXPAYER HERE. 
ONLY LAST TERM, IN UNITED STATES V. CHICAGO, B. & Q. R. CO., 412 U.S.
401 (1973), WE REJECT REPLACEMENT AS THE STRICT AND SOLE PURPOSE OF
DEPRECIATION: 

     "WHATEVER MAY BE THE DESIRABILITY OF CREATING A DEPRECIATION

  RESERVE UNDER THESE CIRCUMSTANCES, AS A MATTER OF GOOD BUSINESS

AND ACCOUNTING PRACTICE, THE ANSWER IS . . . (DEPRECIATION

  REFLECTS THE COST OF AN EXISTING CAPITAL ASSET, NOT THE COST OF A

  POTENTIAL REPLACEMENT.'"  ID., AT 415. 

EVEN WERE WE TO LOOK TO REPLACEMENT, IT IS THE REPLACEMENT OF THE
CONSTRUCTED FACILITIES, NOT THE EQUIPMENT USED TO BUILD THEM, WITH
WHICH WE WOULD BE CONCERNED.  IF THE TAXPAYER NOW WERE TO DECIDE NOT TO
CONSTRUCT ANY MORE CAPITAL FACILITIES WITH ITS OWN EQUIPMENT AND
EMPLOYEES, IT, IN THEORY, WOULD HAVE NO OCCASION TO REPLACE ITS
EQUIPMENT TO THE EXTENT THAT IT WAS CONSUMED IN PRIOR CONSTRUCTION. 

ACCEPTED ACCOUNTING PRACTICE /8/  AND ESTABLISHED TAX PRINCIPLES
REQUIRE THE CAPITALIZATION OF THE COST OF ACQUIRING A CAPITAL ASSET. 
IN WOODWARD V. COMMISSIONER, 397 U.S. 572, 575 (1970), THE COURT
OBSERVED, "IT HAS LONG BEEN RECOGNIZED, AS A GENERAL MATTER, THAT COSTS
INCURRED IN THE ACQUISITION . . . OF A CAPITAL ASSET ARE TO BE TREATED
AS CAPITAL EXPENDITURES."  THIS PRINCIPLE HAS OBVIOUS APPLICATION TO
THE ACQUISITION OF A CAPITAL ASSET BY PURCHASE, BUT IT HAS BEEN
APPLIED, AS WELL, TO THE COSTS INCURRED IN A TAXPAYER'S CONSTRUCTION OF
CAPITAL FACILITIES.  SEE, E.G., SOUTHERN NATURAL GAS CO. V. UNITED
STATES, SUPRA; GREAT NORTHERN R. CO. V. COMMISSIONER, 40 F.2D 372
(CA8), CERT. DENIED, 282 U.S. 855 (1930); COORS V. COMMISSIONER, 60
T.C. 368,398 (1973); NORFOLK SHIPBUILDING & DRYDOCK CORP. V. UNITED
STATES, 321 F.SUPP.  222 (ED VA. 1971); PRODUCERS CHEMICAL CO. V.
COMMISSIONER, 50 T.C. 940 (1968); BROOKS V. COMMISSIONER, 50 T.C. 927,
935 - 936 (1968), REV'D ON OTHER GROUNDS, 424 F.2D 116 (CA5 1970). 
/9/ 

THERE CAN BE LITTLE QUESTION THAT OTHER CONSTRUCTION-RELATED EXPENSE
ITEMS, SUCH AS TOOLS, MATERIALS, AND WAGES PAID CONSTRUCTION WORKERS,
ARE TO BE TREATED AS PART OF THE COST OF ACQUISITION OF A CAPITAL
ASSET.  THE TAXPAYERS DOES NOT DISPUTE THIS.  OF COURSE, REASONABLE
WAGES PAID IN THE CARRYING ON OF A TRADE OR BUSINESS QUALIFY AS A
DEDUCTION FROM GROSS INCOME.  162(A)(1) OF THE 1954 CODE, 26 U.S.C.
162(A)(1).  BUT WHEN WAGES ARE PAID IN CONNECTION WITH THE CONSTRUCTION
OR ACQUISITION OF A CAPITAL ASSET, THEY MUST BE CAPITALIZED AND ARE
THEN ENTITLED TO BE AMORTIZED OVER THE LIFE OF THE CAPITAL ASSET SO
ACQUIRED.  BRIARCLIFF CANDY CORP. V. COMMISSIONER, 475 F.2D 775, 781
(CA2 1973); PERLMUTTER V. COMMISSIONER, 44 T.C. 382, 404 (1965), AFF'D,
373 F.2D 45 (CA10 1967); JAFFA V. UNITED STATES, 198 F.SUPP.  234, 236
(ND OHIO 1961).  SEE TREAS. REG. 1.266 - 1 (E).     CONSTRUCTION
RELATED DEPRECIATION IS NOT UNLIKE EXPENDITURES FOR WAGES FOR
CONSTRUCTION WORKERS.  THE SIGNIFICANT FACT IS THAT THE EXHAUSTION OF
CONSTRUCTION EQUIPMENT DOES NOT REPRESENT THE FINAL DISPOSITION OF THE
TAXPAYER'S INVESTMENT IN THAT EQUIPMENT; RATHER, THE INVESTMENT IN THE
EQUIPMENT IS ASSIMILATED INTO THE COST OF THE CAPITAL ASSET
CONSTRUCTED.  CONSTRUCTION-RELATED DEPRECIATION ON THE EQUIPMENT IS NOT
AN EXPENSE TO THE TAXPAYER OF ITS DAY-TO-DAY BUSINESS.  IT IS, HOWEVER,
APPROPRIATELY RECOGNIZED AS A PART OF THE TAXPAYER'S COST OR INVESTMENT
IN THE CAPITAL ASSET.  THE TAXPAYER'S OWN ACCOUNTING PROCEDURE REFLECTS
THIS TREATMENT, FOR ON ITS BOOKS THE CONSTRUCTION-RELATED DEPRECIATION
WAS CAPITALIZED BY A CREDIT TO THE EQUIPMENT ACCOUNT AND A DEBIT TO THE
CAPITAL FACILITY ACCOUNT.  BY THE SAME TAKEN, THIS CAPITALIZATION
PREVENTS THE DISTORTION OF INCOME THAT WOULD OTHERWISE OCCUR IF
DEPRECIATION PROPERLY ALLOCABLE TO ASSET ACQUISITION WERE DEDUCTED FROM
GROSS INCOME CURRENTLY REALIZED.  SEE, E.G., COORS V. COMMISSIONER, 60
T.C.,AT 398; SOUTHERN NATURAL GAS CO. V. UNITED STATES, 188 CT.CL.,AT
373 - 374, 412 F.2D AT 1265. 

AN ADDITIONAL PERTINENT FACTOR IS THAT CAPITALIZATION OF
CONSTRUCTION-RELATED DEPRECIATION BY THE TAXPAYER WHO DOES ITS OWN
CONSTRUCTION WORK MAINTAINS TAX PARITY WITH THE TAXPAYER WHO HAS ITS
CONSTRUCTION WORK DONE BY AN INDEPENDENT CONTRACTOR.  THE DEPRECIATION
ON THE CONTRACTOR'S EQUIPMENT INCURRED DURING THE PERFORMANCE OF THE
JOB WILL BE AN ELEMENT OF COST CHARGED BY THE CONTRACTOR FOR HIS
CONSTRUCTION SERVICES, AND THE ENTIRE COSTS, OF COURSE, MUST BE
CAPITALIZED BY THE TAXPAYER HAVING THE CONSTRUCTION WORK PERFORMED. 
THE COURT OF APPEALS HOLDING WOULD LEAD TO DISPARATE TREATMENT AMONG
TAXPAYERS BECAUSE IT WOULD ALLOW THE FIRM WITH SUFFICIENT RESOURCES TO
CONSTRUCT ITS OWN FACILITIES AND TO OBTAIN A CURRENT DEDUCTION, WHEREAS
ANOTHER FIRM WITHOUT SUCH RESOURCES WOULD BE REQUIRED TO CAPITALIZE ITS
ENTIRE COST INCLUDING DEPRECIATION CHARGED TO IT BY THE CONTRACTOR. 

SOME, ALTHOUGH NOT CONTROLLING, WEIGHT MUST BE GIVEN TO THE FACT
THAT THE FEDERAL POWER COMMISSION AND THE IDAHO PUBLIC UTILITIES
COMMISSION REQUIRED THE TAXPAYER TO USE ACCOUNTING PROCEDURES THAT
CAPITALIZED CONSTRUCTION-RELATED DEPRECIATION.  ALTHOUGH AGENCY-IMPOSED
COMPULSORY ACCOUNTING PRACTICES DO NOT NECESSARILY DICTATE TAX
CONSEQUENCES, OLD COLONY R. CO. V. COMMISSIONER, 284 U.S. 552, 562
(1932), THEY ARE NOT IRRELEVANT AND MAY BE ACCORDED SOME SIGNIFICANCE. 
COMMISSIONER V. LINCOLN SAVINGS & LOAN ASSN., 403 U.S. 345, 355 - 356
(1971).  THE OPINIONS IN AMERICAN AUTOMOBILE ASSN. V. UNITED STATES,
367 U.S. 687 (1961), AND SCHLUDE V. COMMISSIONER, 372 U.S. 128 (1963),
URGED UPON US BY THE TAXPAYER HERE, ARE NOT TO THE CONTRARY.  IN THE
FORMER CASE IT WAS OBSERVED THAT MERELY BECAUSE THE METHOD OF
ACCOUNTING A TAXPAYER EMPLOYS IS IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PROCEDURES, THIS "IS NOT TO HOLD THAT FOR INCOME TAX
PURPOSES IT SO CLEARLY REFLECTS INCOME AS TO BE BINDING OF THE
TREASURY."  367 U.S.AT 693.  SEE ALSO CINCINNATI, N.O. & T.P.R. CO. V.
UNITED STATES, 191 CT.CL. 572, 583 - 584, 424 F.2D 563, 570 (1970). 
NONETHELESS, WHERE A TAXPAYER'S GENERALLY ACCEPTED METHOD OF ACCOUNTING
IS MADE COMPULSORY BY THE REGULATORY AGENCY AND THAT METHOD CLEARLY
REFLECTS INCOME, /10/  IT IS ALMOST PRESUMPTIVELY CONTROLLING OF
FEDERAL INCOME TAX CONSEQUENCES. 

THE PRESENCE OF 263(A)(1) IN THE CODE IS OF SIGNIFICANCE.  ITS
LITERAL LANGUAGE DENIES A DEDUCTION FOR "(ANY AMOUNT PAID OUT" FOR
CONSTRUCTION OR PERMANENT IMPROVEMENT OF FACILITIES.  THE TAXPAYER
CONTENDS, AND THE COURT OF APPEALS HELD, THAT DEPRECIATION OF
CONSTRUCTION EQUIPMENT REPRESENTS MERELY A DECREASE IN VALUE AND IS NOT
AN AMOUNT "PAID OUT," WITHIN THE MEANING OF 263(A)(1).  WE DISAGREE. 

THE PURPOSE OF 263 IS TO REFLECT THE BASIC PRINCIPLE THAT A CAPITAL
EXPENDITURE MAY NOT BE DEDUCTED FROM CURRENT INCOME.  IT SERVES TO
PREVENT A TAXPAYER FROM UTILIZING CURRENTLY A DEDUCTION PROPERLY
ATTRIBUTABLE, THROUGH AMORTIZATION, TO LATER TAX YEARS WHEN THE CAPITAL
ASSET BECOMES INCOME PRODUCING.  THE REGULATIONS STATE THAT THE CAPITAL
EXPENDITURES TO WHICH 263(A) EXTENDS INCLUDE THE "COST OF ACQUISITION,
CONSTRUCTION, OR ERECTION OF BUILDINGS."  TREAS. REG. 1.263(A) - 2
(A).  THIS MANIFESTS AN ADMINISTRATIVE UNDERSTANDING THAT FOR PURPOSES
OF 263(A)(1), "AMOUNT PAID OUT" EQUATES WITH "COST INCURRED."  THE
INTERNAL REVENUE SERVICE FOR SOME TIME HAS TAKEN THE POSITION THAT
CONSTRUCTION-RELATED DEPRECIATION IS TO BE CAPITALIZED.  REV. RUL. 59 -
380, 1959 - 2 CUM.BULL.  87; REV.RUL.  55 - 252, 1955 - 1 CUM.BULL. 
319. 

THERE IS NO QUESTION THAT THE COST OF THE TRANSPORTATION EQUIPMENT
WAS "PAID OUT"  IN THE SAME MANNER AS THE COST OF SUPPLIES, MATERIALS,
AND OTHER EQUIPMENT, AND THE WAGES OF CONSTRUCTION WORKERS.  /11/  THE
TAXPAYER DOES NOT QUESTION THE CAPITALIZATION OF THESE OTHER ITEMS AS
ELEMENTS OF THE COST OF ACQUIRING A CAPITAL ASSET.  WE SEE NO REASON TO
TREAT CONSTRUCTION-RELATED DEPRECIATION DIFFERENTLY.  IN ACQUIRING THE
TRANSPORTATION EQUIPMENT, TAXPAYER "PAID OUT" THE EQUIPMENT'S PURCHASE
PRICE; DEPRECIATION IS SIMPLY THE MEANS OF ALLOCATING THE PAYMENT OVER
THE VARIOUS ACCOUNTING PERIODS AFFECTED.  AS THE TAX COURT STATED IN
BROOKS V. COMMISSIONER, 50 T.C.,AT 935, "DEPRECIATION--INASMUCH AS IT
REPRESENTS A USING UP OF CAPITAL--IS AS MUCH AN 'EXPENDITURE' AS THE
USING UP OF LABOR OR OTHER ITEMS OF DIRECT COST." 

FINALLY, THE PRIORITY-ORDERING DIRECTIVES OF 161--OR, FOR THAT
MATTER, 261 OF THE CODE, 26 U.S.C. 261 /12/  --REQUIRES THAT THE
CAPITALIZATION PROVISION OF 263(A) TAKE PRECEDENCE, ON THE FACTS HERE,
OVER 167(A).  SECTION 161 PROVIDES THAT DEDUCTIONS SPECIFIED IN PART VI
OF SUB-CHAPTER B OF THE INCOME TAX SUBTITLE OF THE CODE ARE "SUBJECT TO
THE EXCEPTIONS PROVIDED IN PART IX."  PART VI INCLUDES 167 AND PART IX
INCLUDES 263.  THE CLEAR IMPORT OF 161 IS THAT, WITH STATED EXCEPTIONS
SET FORTH EITHER IN 263 ITSELF OR PROVIDED FOR ELSEWHERE (AS FOR
EXAMPLE, IN 404 RELATING TO PENSION CONTRIBUTIONS), NONE OF WHICH IS
APPLICABLE HERE, AN EXPENDITURE INCURRED IN ACQUIRING CAPITAL ASSETS
MUST BE CAPITALIZED EVEN WHEN THE EXPENDITURE OTHERWISE MIGHT BE DEEMED
DEDUCTIBLE UNDER PART VI. 

THE COURT OF APPEALS CONCLUDED, WITHOUT REFERENCE TO 161, THAT 263 DID
NOT APPLY TO DEDUCTION, SUCH AS THAT FOR DEPRECIATION OF PROPERTY USED
IN A TRADE OR BUSINESS, ALLOWED BY THE CODE EVEN THOUGH INCURRED IN THE
CONSTRUCTION OF CAPITAL ASSETS.  /13/  WE THINK THAT THE COURT ERRED IN
ESPOUSING SO ABSOLUTE A RULE, AND IT OBVIOUSLY OVERLOOKED THE CONTRARY
DIRECTION OF 161.  TO THE EXTENT THAT RELIANCE WAS PLACED ON THE
CONGRESSIONAL INTENT, IN THE EVOLVEMENT OF THE 1954 CODE, TO PROVIDE
FOR "LIBERALIZATION OF DEPRECIATION."  H. R. REP. NO. 1337, 83D CONG.,
2D SESS., 22 (1954), THAT RELIANCE IS MISPLACED.  THE HOUSE REPORT ALSO
STATES THAT THE DEPRECIATION PROVISIONS WOULD "GIVE THE ECONOMY ADDED
STIMULUS AND RESILIENCE WITHOUT DEPARTING FROM REALISTIC STANDARDS OF
DEPRECIATION ACCOUNTING."  ID., AT 24.  TO BE SURE, THE 1954 CODE
PROVIDED FOR NEW AND ACCELERATED METHODS FOR DEPRECIATION, RESULTING IN
THE GREATER DEPRECIATION DEDUCTIONS CURRENTLY AVAILABLE.  THESE
CHANGES, HOWEVER, RELATE PRIMARILY TO COMPUTATION OF DEPRECIATION. 
CONGRESS CERTAINLY DID NOT INTEND THAT PROVISIONS FOR ACCELERATED
DEPRECIATION SHOULD BE CONSTRUED AS ENLARGING THE CLASS OF DEPRECIABLE
ASSETS TO WHICH 167(A) HAS APPLICATION OR AS LESSENING THE REACH OF
263(A).  SEE NOTE, 1973 DUKE L. J., AT 1386. 

WE HOLD THAT THE EQUIPMENT DEPRECIATION ALLOCABLE TO TAXPAYER'S
CONSTRUCTION OF CAPITAL FACILITIES IS TO BE CAPITALIZED. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

              IT IS SO ORDERED. 

/1/  "167.  DEPRECIATION. 

"(A) GENERAL RULE. 

"THERE SHALL BE ALLOWED AS A DEPRECIATION DEDUCTION A REASONABLE
ALLOWANCE FOR THE EXHAUSTION, WEAR AND TEAR (INCLUDING A REASONABLE
ALLOWANCE FOR OBSOLESCENCE)-- 

"(1) OF PROPERTY USED IN THE TRADE OR BUSINESS, OR 

"(2) OF PROPERTY HELD FOR THE PRODUCTION OF INCOME." 

/2/  "263.  CAPITAL EXPENDITURES. 

"(A) GENERAL RULE. 

"NO DEDUCTION SHALL BE ALLOWED FOR-- 

"(1) ANY AMOUNT PAID OUT FOR NEW BUILDINGS OR FOR PERMANENT
IMPROVEMENTS OR BETTERMENTS MADE TO INCREASE THE VALUE OF ANY PROPERTY
OR ESTATE." 

/3/  FOR A PERIOD NEAR THE END OF WORLD WAR II, THE TAXPAYER
CONSTRUCTED ALL ITS CAPITAL IMPROVEMENTS.  AT OTHER TIMES, OUTSIDE
CONTRACTORS HAVE PERFORMED PART OF THIS WORK.  AT THE TIME OF THE TRIAL
OF THIS TAX CASE, THE TAXPAYER HAD 140 EMPLOYEES ENGAGED IN NEW
CONSTRUCTION; IT HAS HAD AS MANY AS 300 EMPLOYEES SO ENGAGED. 

/4/  FOR 1962 AND 1963 THE TAXPAYER'S GROSS CONSTRUCTION ADDITIONS
WERE $8,235,440.22 AND $5,988,139.56, RESPECTIVELY.  OF THESE AMOUNTS,
THE TAXPAYER ITSELF CONSTRUCTED $7,139,940.72 AND $5,642,342.79.  THE
SELF-CONSTRUCTION PORTION, THEREFORE, OBVIOUSLY WAS A SUBSTANTIAL PART
OF THE GROSS.  THE EQUIPMENT DEPRECIATION FOR THOSE YEARS, TO THE
EXTENT ALLOCATED TO USE IN CONSTRUCTION AND CAPITALIZED ON THE
TAXPAYER'S BOOKS, AMOUNTED TO $150,047.42 AND $130,523.99,
RESPECTIVELY.  THESE WERE THE DEPRECIATION AMOUNTS DEDUCTED FOR INCOME
TAX PURPOSES, THE MAJOR PORTIONS OF WHICH ARE PRESENTLY AT ISSUE. 

/5/  FOR PURPOSES OF THE ISSUE HERE PRESENTED, THE KEY PHRASE OF
167(A)(1) IS "PROPERTY USED IN THE TRADE OR BUSINESS."  CONSTRUCTION OF
THIS PHRASE IN THE PRESENT CONTEXT HAS BEEN INFREQUENT AND NOT
CONSISTENT.  IN GREAT NORTHERN R. CO. V. COMMISSIONER, 40 F.2D 372
(CA8), CERT. DENIED, 282 U.S. 855 (1930), THE COURT HELD THAT WHERE A
RAILROAD TRANSPORTED MEN AND EQUIPMENT TO A CONSTRUCTION SITE, THE
DEPRECIATION OF THE TRAIN ATTRIBUTABLE TO THE CONSTRUCTION WORK WAS TO
BE CAPITALIZED.  NO CONSIDERATION WAS GIVEN TO WHETHER THE CLAIMED
DEDUCTION WAS AVAILABLE FOR PROPERTY USED IN THE TAXPAYER'S TRADE OR
BUSINESS.  SEE ALSO GULF, M. & N. R. CO. V. COMMISSIONER, 22 B.T.A.
233, 245 - 247 (1931), AFF'D AS TO OTHER ISSUES, 63 U.S.APP.D.C. 244,
71 F.2D 953 (1934), AFF'D 293 U.S. 295 (1934); MISSOURI PACIFIC R. CO.
V. COMMISSIONER, 22 B.T.A. 267, 286 - 287 (1931); NORTHERN PACIFIC R.
CO. V. HELVERING, 83 F.2D 508, 513 (CA8 1936). 

IN A SUBSEQUENT CASE, GREAT NORTHERN R. CO. V. COMMISSIONER, 30
B.T.A. 691 (1934), THE BOARD OF TAX APPEALS REACHED THE CONTRARY RESULT
ON IDENTICAL FACTS.  THE BOARD HELD THAT THE TRAIN EQUIPMENT, EVEN
THOUGH USED IN PART FOR CONSTRUCTION OF BRANCH LINES OF THE RAILROAD,
WAS USED IN A TRADE OR BUSINESS, AND THAT THIS SATISFIED THE
REQUIREMENTS OF THE STATUTE.  THE DEPRECIATION, THEREFORE, WAS HELD
DEDUCTIBLE.  ID., AT 708.  THIS APPEARS TO HAVE BEEN THE PREVAILING
VIEW UNTIL THE ISSUANCE OF REV. RUL. 59 - 380, 1959 - 2 CUM.BULL.  87,
WHERE IT WAS STATED: 

"IN THE INSTANT CASE THE CAPITAL IMPROVEMENTS CONSTRUCTED CONSTITUTE
PROPERTY TO BE USED IN THE TRADE OR BUSINESS OR PROPERTY HELD FOR THE
PRODUCTION OF INCOME.  HOWEVER, THE BUILDING EQUIPMENT USED IN THE
CONSTRUCTION CANNOT BE CONSIDERED AS PROPERTY USED IN THE REGULAR TRADE
OR BUSINESS OF THE TAXPAYER."  ID., AT 88. 

REV. RUL. 59 - 380 WAS IN PART THE BASIS FOR THE HOLDING OF THE
COURT OF CLAIMS IN SOUTHERN NATURAL GAS CO. V. UNITED STATES, 188
CT.CL. 302, 378 - 379, 412 F.2D 1222, 1268 (1969).  THE COURT OF CLAIMS
REJECTED THE "'A TRADE OR BUSINESS'" APPROACH IN FAVOR OF THE RULE
THAT, TO BE DEDUCTIBLE FROM CURRENT INCOME, DEPRECIATION MUST BE OF
PROPERTY USED IN THE TRADE OR BUSINESS OF THE TAXPAYER.  EQUIPMENT, TO
THE EXTENT USED BY THE TAXPAYER IN CONSTRUCTION OF ADDITIONAL
FACILITIES, WAS NOT USED IN THE TRADE OR BUSINESS OF THE NATURAL GAS
COMPANY.  THUS, NO DEPRECIATION DEDUCTION WAS ALLOWABLE AND THE
CONTESTED AMOUNT OF DEPRECIATION WAS TO BE CAPITALIZED. 

IN THE INSTANT CASE, THE COURT OF APPEALS CONCLUDED THAT
TRANSPORTATION EQUIPMENT USED BY THE TAXPAYER TO CONSTRUCT ITS OWN
CAPITAL IMPROVEMENTS WAS USED IN THE TRADE OR BUSINESS OF THE
TAXPAYER: 

"THE CONTINUITY AND REGULARITY OF TAXPAYER'S CONSTRUCTION
ACTIVITIES, THE NUMBER OF EMPLOYEES ENGAGED IN CONSTRUCTION AND THE
AMOUNTS EXPENDED ON CONSTRUCTION ALL POINT TO THE CONCLUSION THAT
CONSTRUCTION OF FACILITIES IS A MAJOR ASPECT OF THE TAXPAYER'S TRADE OR
BUSINESS.  THESE ACTIVITIES ARE AUXILIARY OPERATIONS INCIDENT TO THE
TAXPAYER'S PRINCIPAL TRADE OR BUSINESS OF PRODUCING, TRANSMITTING,
DISTRIBUTING AND SELLING ELECTRICAL ENERGY WITHIN THE MEANING OF

SINCE THE COMMISSIONER APPEARS TO HAVE CONCEDED THE LITERAL
APPLICATION OF 167(A) TO IDAHO POWER'S EQUIPMENT DEPRECIATION, WE NEED
NOT REACH THE ISSUE WHETHER THE COURT OF APPEALS HAS GIVEN THE PHRASE
"USED IN THE TRADE OR BUSINESS" A PROPER CONSTRUCTION.  FOR PURPOSES OF
THIS CASE, WE ASSUME, WITHOUT DECIDING, THAT 167(A) DOES HAVE A LITERAL
APPLICATION TO THE DEPRECIATION OF THE TAXPAYER'S TRANSPORTATION
EQUIPMENT USED IN THE CONSTRUCTION OF ITS CAPITAL IMPROVEMENTS. 

/6/  "161.  ALLOWANCE OF DEDUCTIONS. 

"IN COMPUTING TAXABLE INCOME UNDER SECTION 63(A), THERE SHALL BE
ALLOWED AS DEDUCTIONS THE ITEMS SPECIFIED IN THIS PART, SUBJECT TO THE
EXCEPTIONS PROVIDED IN PART IX (SEC. 261 AND FOLLOWING, RELATING TO
ITEMS NOT DEDUCTIBLE)." 

/7/  THE COMMITTEE ON TERMINOLOGY OF THE AMERICAN INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS HAS DISCUSSED VARIOUS DEFINITIONS OF
DEPRECIATION AND CONCLUDED THAT:     "THESE DEFINITIONS VIEW
DEPRECIATION, BROADLY SPEAKING, AS DESCRIBING NOT DOWNWARD CHANGES OF
VALUE REGARDLESS OF THEIR CAUSES BUT A MONEY COST INCIDENT TO
EXHAUSTION OF USEFULNESS.  THE TERM IS SOMETIMES APPLIED TO THE
EXHAUSTION ITSELF, BUT THE COMMITTEE CONSIDERS IT DESIRABLE TO
EMPHASIZE THE COST CONCEPT AS THE PRIMARY IF NOT THE SOLE ACCOUNTING
MEANING OF THE TERM:  THUS, DEPRECIATION MEANS THE COST OF SUCH
EXHAUSTION, AS WAGES MEANS THE COST OF LABOR."  2 APB ACCOUNTING
PRINCIPLES, ACCOUNTING TERMINOLOGY BULLETIN NO. 1--REVIEW AND RESUME
PARA. 48, P. 9512 (1973) (EMPHASIS IN ORIGINAL).     /8/  THE GENERAL
PROPOSITION THAT GOOD ACCOUNTING PRACTICE REQUIRES CAPITALIZATION OF
THE COST OF ACQUIRING A CAPITAL ASSET IS NOT SERIOUSLY OPEN TO
QUESTION.  THE COMMISSIONER URGES, HOWEVER, THAT ACCOUNTING METHODS AS
A RULE REQUIRE THE TREATMENT OF CONSTRUCTION-RELATED DEPRECIATION OF
EQUIPMENT AS A CAPITAL COST OF THE FACILITY CONSTRUCTED.  INDEED, THERE
IS ACCOUNTING AUTHORITY FOR THIS.  SEE, E.G., W. PATON, ASSET
ACCOUNTING 188, 192 - 193 (1952); H. FINNEY & H. MILLER, PRINCIPLES OF
ACCOUNTING--INTRODUCTORY 246 - 247 (6TH ED. 1963) (DEPRECIATION AS AN
EXPENSE SHOULD BE MATCHED WITH THE PRODUCTION OF INCOME); W. PATON,
ACCOUNTANTS'  HANDBOOK 652 (3D ED. 1943); NOTE, 1973 DUKE L. J. 1377,
1384; NOTE, 52 N.C.L.REV.  684, 692 (1974). 

/9/  EXCEPT FOR THE COURT OF APPEALS IN THE PRESENT CASE, THE COURTS
CONSISTENTLY HAVE UPHELD THE POSITION OF THE COMMISSIONER THAT
CONSTRUCTION-RELATED DEPRECIATION IS TO BE CAPITALIZED.  GREAT NORTHERN
R. CO. V. COMMISSIONER, 30 B.T.A. 691 (1934), UPON WHICH THE COURT OF
APPEALS RELIED, IS NOT TO THE CONTRARY.  IN THAT CASE THE BOARD
CONCLUDED THAT CONSTRUCTION-RELATED DEPRECIATION WAS DEDUCTIBLE UNDER
THE REVENUE ACT OF 1928, 23 (K), 45 STAT. 800 (THE PROVISION
CORRESPONDING TO 167(A)(1) OF THE 1954 CODE).  THE COMMISSIONER IN THAT
CASE, HOWEVER, HAD NOT ARGUED FOR THE CAPITALIZATION OF CONSTRUCTION
RELATED DEPRECIATION.  30 B.T.A.; AT 708. 

/10/  SECTION 446 OF THE CODE, 26 U.S.C. 446, READS IN PART AS
FOLLOWS: 

"446.  GENERAL RULE FOR METHODS OF ACCOUNTING. 

"(A) GENERAL RULE. 

"TAXABLE INCOME SHALL BE COMPUTED UNDER THE METHOD OF ACCOUNTING ON
THE BASIS OF WHICH THE TAXPAYER REGULARLY COMPUTES HIS INCOME IN
KEEPING HIS BOOKS. 

"(B) EXCEPTIONS. 

"IF NO METHOD OF ACCOUNTING HAS BEEN REGULARLY USED BY THE TAXPAYER,
OR IF THE METHOD USED DOES NOT CLEARLY REFLECT INCOME, THE COMPUTATION
OF TAXABLE INCOME SHALL BE MADE UNDER SUCH METHOD AS, IN THE OPINION OF
THE SECRETARY OR HIS DELEGATE, DOES CLEARLY REFLECT INCOME." 

/11/  THE TAXPAYER CONTENDS THAT DEPRECIATION HAS BEEN HELD NOT TO
BE AN EXPENDITURE OR PAYMENT FOR PURPOSES OF A CHARITABLE CONTRIBUTION
UNDER 170 OF THE CODE, 26 U.S.C. 170, E.G., ORR V. UNITED STATES, 343
F.2D 553 (CA5 1965); MITCHELL V. COMMISSIONER, 42 T.C. 953, 973 - 974
(1964), OR FOR PURPOSES OF A MEDICAL-EXPENSE DEDUCTION UNDER 213, 26
U.S.C. 213, E.G., GORDON V. COMMISSIONER, 37 T.C. 986 (1962).  SECTION
263 IS CONCERNED, HOWEVER, WITH THE CAPITAL NATURE OF AN EXPENDITURE
AND NOT WITH ITS TIMING, AS ARE THE PHRASES "PAYMENT . . . WITHIN THE
TAXABLE YEAR" OR "PAID DURING THE TAXABLE YEAR," RESPECTIVELY USED IN
170 AND 213.  THE TREATMENT OF DEPRECIATION UNDER THOSE SECTIONS HAS NO
RELEVANCE TO THE ISSUE OF CAPITALIZATION HERE.  SEE, E.G., PRODUCERS
CHEMICAL CO. V. COMMISSIONERS, 50 T.C. 940, 959 (1968). 

/12/  "261.  GENERAL RULE FOR DISALLOWANCE OF DEDUCTIONS. 

"IN COMPUTING TAXABLE INCOME NO DEDUCTION SHALL IN ANY CASE BE
ALLOWED IN RESPECT OF THE ITEMS SPECIFIED IN THIS PART." 

/13/  THE COURT OF APPEALS RELIED ON ALL-STEEL EQUIPMENT, INC. V.
COMMISSIONER, 54 T.C. 1749 (1970), REV'D IN PART, 467 F.2D 1184 (CA7
1972), IN HOLDING THAT 263 WAS APPLICABLE TO DEDUCTIONS SPECIFICALLY
ALLOWED BY THE CODE.  477 F.2D,AT 693.  IN ALL-STEEL, THE TAX COURT
FACED THE QUESTION WHETHER TAXES, LOSSES, AND RESEARCH AND EXPERIMENTAL
EXPENSES INCURRED IN MANUFACTURING INVENTORY ITEMS WERE CURRENTLY
DEDUCTIBLE AND DID NOT HAVE TO BE CAPITALIZED.  THE TAX COURT HELD THAT
THESE ITEMS WERE DEDUCTIBLE, AND THAT THE TAXPAYER'S METHOD OF
ACCOUNTING DID NOT CLEARLY REFLECT INCOME.  THE COURT OF APPEALS, IN
CONTRAST, HELD THAT CERTAIN REPAIR EXPENSES INCURRED IN PRODUCING
INVENTORY COULD BE DEDUCTED "ONLY IN THE TAXABLE YEAR IN WHICH THE
MANUFACTURED GOODS TO WHICH THE REPAIRS RELATE ARE SOLD."  467 F.2D,AT
1186.  WE NEED NOT DECIDE THIS ISSUE, BUT WE NOTE THAT 263(A)(1)(B)
EXCEPTS RESEARCH AND EXPERIMENTAL EXPENDITURES FROM CAPITALIZATION
TREATMENT, SEE SNOW V. COMMISSIONER, 416 U.S. 500 (1974), AND THAT 266
OF THE CODE, 26 U.S.C. 266, CREATES A FURTHER EXCEPTION BY PROVIDING
TAXPAYERS WITH AN ELECTION BETWEEN CAPITALIZATION AND DEDUCTION OF
CERTAIN TAXES AND CARRYING CHARGES.  THE TAX COURT, IN DISCUSSING
DEDUCTIONS FOR TAXES, LOSSES, AND RESEARCH AND EXPERIMENTAL
EXPENDITURES, OBSERVED THAT "DEDUCTIONS EXPRESSLY GRANTED BY STATUTE
ARE NOT TO BE DEFERRED EVEN THOUGH THEY RELATE TO INVENTORY OR CAPITAL
ITEMS."  54 T.C.,AT 1759.  THIS STATEMENT, WHEN OUT OF CONTEXT, IS
SUBJECT TO OVERBOARD INTERPRETATION AND, AS IS EVIDENT FROM OUR HOLDING
IN THE PRESENT CASE, HAS DECIDED LIMITATIONS IN APPLICATION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS COURT HAS, TO MANY, SEEMED PARTICULARLY ILL-EQUIPPED TO RESOLVE
INCOME TAX DISPUTES BETWEEN THE COMMISSIONER AND THE TAXPAYERS.  THE
REASONS ARE (1) THAT THE FIELD HAS BECOME INCREASINGLY TECHNICAL AND
COMPLICATED DUE TO THE EXPANSIONS OF THE CODE AND THE PROLIFERATION OF
DECISIONS AND, (2) THAT WE SELDOM SEE ENOUGH OF THEM TO DEVELOP ANY
EXPERTISE IN THE AREA.  INDEED, WE ARE CALLED UPON MOSTLY TO RESOLVE
CONFLICTS BETWEEN THE CIRCUITS WHICH MORE PROVIDENTLY SHOULD GO TO THE
STANDING COMMITTEE OF THE CONGRESS FOR RESOLUTION. 

THAT WAS THE SENTIMENT BEHIND DOBSON V. COMMISSIONER, 320 U.S. 489,
WRITTEN BY MR. JUSTICE JACKSON AND ENTHUSIASTICALLY PROMOTED BY MR.
JUSTICE BLACK, MR. JUSTICE FRANKFURTER, AND MYSELF.  DOBSON, SAVE FOR
EGREGIOUS ERROR AND CONSTITUTIONAL QUESTIONS, WOULD HAVE LEFT PICAYUNE
CASES SUCH AS THE PRESENT ONE LARGELY TO THE TAX COURT, WHOSE EXPERTISE
IS WELL RECOGNIZED.  BUT DOBSON WAS SHORT-LIVED, AS CONGRESS MADE CLEAR
ITS PURPOSE THAT WE WERE TO CONTINUE ON OUR LEADEN-FOOTED PURSUIT OF
LAW AND JUSTICE IN THIS FIELD.  INTERNAL REVENUE CODE OF 1939, 1141, AS
AMENDED, 62 STAT. 991. 

NOW THAT WE ARE ON OUR OWN I DISAGREE WITH THE COURT IN DISALLOWING
THE PRESENT CLAIM FOR DEPRECIATION.  A COMPANY TRUCK HAS, LET US SAY, A
LIFE OF 10 YEARS.  IF IT COST $10,000, ONE WOULD EXPECT THAT "A
REASONABLE ALLOWANCE FOR THE EXHAUSTION, WEAR AND TEAR"  OF THE TRUCK
WOULD BE $1,000 A YEAR WITHIN THE MEANING OF 26 U.S.C. 167(A).  THAT
WAS THE PROVISION IN THE HOUSE REPORT OF THE 1954 CODE WHEN IT SAID
THAT IT PROVIDED FOR "A LIBERALIZATION OF DEPRECIATION WITH RESPECT TO
BOTH THE ESTIMATE OF USEFUL LIFE OF PROPERTY AND THE METHOD OF
ALLOCATING THE DEPRECIABLE COST OVER THE YEARS OF SERVICE."  /1/  H.R.
REP. NO. 1337, 83D CONG., 2D SESS., 22. 

NOT SO, SAYS THE GOVERNMENT.  SINCE THE TRUCK WAS USED TO BUILD A
PLANT FOR THE TAXPAYER AND THE PLANT HAS A USEFUL LIFE OF 40 YEARS, A
LOWER RATE OF DEPRECIATION MUST BE USED--A RATE THAT WOULD SPREAD OUT
THE LIFE OF THE TRUCK FOR 40 YEARS EVEN THOUGH IT WOULD NOT LAST MORE
THAN 10.  SECTION 167(A) PROVIDES FOR A DEPRECIATION DEDUCTION WITH
RESPECT TO PROPERTY "USED IN THE (TAXPAYER'S) TRADE OR BUSINESS" OR
"HELD FOR THE PRODUCTION OF INCOME" BY THE TAXPAYER.  THERE IN NO
INTIMATION THAT 167(A) IS NOT SATISFIED.  THE ARGUMENT IS RESTED UPON
161 WHICH ALLOWS THE DEDUCTIONS SPECIFIED IN 167(A) "SUBJECT TO THE
EXCEPTIONS" IN 263(A) WHICH PROVIDES: 

"NO DEDUCTION SHALL BE ALLOWED FOR-- 

     "(1) ANY AMOUNT PAID OUT FOR NEW BUILDINGS OR FOR PERMANENT

IMPROVEMENTS OR FOR BETTERMENTS MADE TO INCREASE THE VALUE OF ANY

  PROPERTY OR ESTATE.  . . ." 

I AGREE WITH THE COURT OF APPEALS THAT DEPRECIATION CLAIMED ON A
TRUCK WHOSE USEFUL LIFE IS 10 YEARS IS NOT AN AMOUNT "PAID OUT" WITHIN
THE MEANING OF 263(A)(1).  IF "PAYMENT" IN THE SETTING OF 263(A)(1) IS
TO BE READ AS INCLUDING DEPRECIATION, CONGRESS--NOT THE COURTS--SHOULD
MAKE THE DECISION. 

I SUSPECT THAT IF THE LIFE OF THE VEHICLE WERE 40 YEARS AND THE LIFE
OF THE BUILDING WERE 10 YEARS THE INTERNAL REVENUE SERVICE WOULD BE
HERE ARGUING PERSUASIVELY THAT DEPRECIATION OF THE VEHICLE SHOULD BE
TAKEN OVER A 40-YEAR PERIOD.  THAT IS NOT TO IMPUGN THE INTEGRITY OF
THE IRS.  IT IS ONLY AN ILLUSTRATION OF THE CAPRICIOUS CHARACTER OF HOW
LAW IS CONSTRUED TO GET FROM THE TAXPAYER THE GREATEST POSSIBLE RETURN
THAT IS PERMISSIBLE UNDER THE CODE. 

THE OPINION OF THE COURT OF APPEALS WRITTEN BY JUDGE TRASK AND
CONCURRED IN BY JUDGES CHOY AND MCGOVERN, STATES MY VIEW OF THE LAW. 

DEPRECIATION ON AN AUTOMOBILE IS NOT ALLOWED AS A CHARITABLE
DEDUCTION, ORR V. UNITED STATES, 343 F.2D 553; MITCHELL V.
COMMISSIONER, 42 T.C. 953, 973 - 974, SINCE IT IS NOT A "PAYMENT"
WITHIN THE MEANING OF 170(A)(1).  LIKEWISE DEPRECIATION ON AN
AUTOMOBILE USED TO TRANSPORT THE TAXPAYER'S SON TO A DOCTOR IS NOT
DEDUCTIBLE AS A MEDICAL EXPENSE UNDER 213 BECAUSE IT IS NOT AN EXPENSE
"PAID" WITHIN THE MEANING OF THE SECTION.  GORDON V. COMMISSIONER, 37
T.C. 986; CALAFUT V. COMMISSIONER, 23 T.C.M. 1431.  /2/ 

THE IRS, HOWEVER, HAS RULED THAT DEPRECIATION ON CONSTRUCTION
EQUIPMENT OWNED BY A TAXPAYER AND USED IN ITS CONSTRUCTION WORK MUST BE
CAPITALIZED.  /3/  THAT REVENUE RULING, AS THE COURT OF APPEALS HELD,
IS A LEGAL OPINION WITHIN THE AGENCY, NOT A REGULATION OR TREASURY
DECISION.  IT IS WITHOUT FORCE WHEN IT CONFLICTS WITH AN ACT OF
CONGRESS.  /4/  SEE BARTELS V. BIRMINGHAM, 332 U.S. 126, 132. 

IF THE TEST UNDER 263(A)(1) WERE THE COST OF CAPITAL IMPROVEMENTS,
THE RESULT WOULD BE DIFFERENT.  BUT, AS NOTED, THE TEST IS "ANY AMOUNT
PAID OUT," WHICH CERTAINLY DOES NOT DESCRIBE DEPRECIATION DEDUCTIONS
UNLESS WORDS ARE TO ACQUIRE ESOTERIC MEANINGS MERELY TO ACCOMMODATE THE
IRS.  CONGRESS IS THE LAWMAKER; AND TAKING THE LAW FROM IT, WE SHOULD
AFFIRM THE COURT OF APPEALS. 

/1/  THE COMMITTEE INDICATED THAT "REASONABLE" DEPRECIATION
ALLOWANCES INCLUDE THE STRAIGHT-LINE METHOD, THE DECLINING-BALANCE
METHOD, OR ANY OTHER METHOD THAT ON AN ANNUAL BASIS DOES NOT EXCEED THE
ALLOWANCES ON THE DECLINING-BALANCE METHOD.  H.R. REP. NO. 1337, 83D
CONG., 2D SESS., 22 - 23. 

THE PURPOSE OF PROVIDING MORE LIBERAL DEPRECIATION ALLOWANCES WAS
EXPLICITLY STATED: 

"MORE LIBERAL DEPRECIATION ALLOWANCES ARE ANTICIPATED TO HAVE FAR
REACHING ECONOMIC EFFECTS.  THE INCENTIVES RESULTING FROM THE CHANGES
ARE WELL TIMED TO HELP MAINTAIN THE PRESENT HIGH LEVEL OF INVESTMENT IN
PLANT AND EQUIPMENT.  THE ACCELERATION IN THE SPEED OF THE TAX-FREE
RECOVERY OF COSTS IS OF CRITICAL IMPORTANCE IN THE DECISION OF
MANAGEMENT TO INCUR RISK.  THE FASTER TAX WRITEOFF WOULD INCREASE
AVAILABLE WORKING CAPITAL AND MATERIALLY AID GROWING BUSINESSES IN THE
FINANCING OF THEIR EXPANSION.  FOR ALL SEGMENTS OF THE AMERICAN
ECONOMY, LIBERALIZED DEPRECIATION POLICIES SHOULD ASSIST MODERNIZATION
AND EXPANSION OF INDUSTRIAL CAPACITY, WITH RESULTING ECONOMIC GROWTH,
INCREASED PRODUCTION, AND A HIGHER STANDARD OF LIVING. 

"SMALL BUSINESS AND FARMERS PARTICULARLY HAVE A VITAL STAKE IN A
MORE LIBERAL AND CONSTRUCTIVE DEPRECIATION POLICY.  THEY ARE ESPECIALLY
DEPENDENT ON THEIR CURRENT EARNINGS OR SHORT-TERM LOANS TO OBTAIN FUNDS
FOR EXPANSION.  THE FASTER RECOVERY OF CAPITAL INVESTMENT PROVIDED BY
THIS BILL WILL PERMIT THEM TO SECURE SHORT-TERM LOANS WHICH WOULD
OTHERWISE NOT BE AVAILABLE."  ID., AT 24. 

/2/  WHERE CONGRESS HAS INTENDED THAT DEPRECIATION BE TREATED AS AN
EXPENDITURE IT HAS STATED SO EXPLICITLY, E.G., 615(A) OF THE INTERNAL
REVENUE CODE. 

/3/  REV. RUL. 59 - 380, 1959 - 2 CUM.BULL.  87, 88. 

"(DEPRECIATION SUSTAINED ON CONSTRUCTION EQUIPMENT OWNED BY A
TAXPAYER AND USED IN THE ERECTION OF CAPITAL IMPROVEMENTS FOR ITS OWN
USE IS NOT AN ALLOWABLE DEDUCTION, BUT SHALL BE ADDED TO AND MADE A
PART OF THE COST OF THE CAPITAL IMPROVEMENTS.  SO MUCH THEREOF AS IS
APPLICABLE TO THE COST OF DEPRECIABLE CAPITAL IMPROVEMENTS IS
RECOVERABLE THROUGH DEDUCTIONS FOR DEPRECIATION OVER THE USEFUL LIFE OF
SUCH CAPITAL IMPROVEMENTS. 

"IN THE INSTANT CASE THE CAPITAL IMPROVEMENTS CONSTRUCTED CONSTITUTE
PROPERTY TO BE USED IN THE TRADE OR BUSINESS OR PROPERTY HELD FOR THE
PRODUCTION OF INCOME.  HOWEVER, THE BUILDING EQUIPMENT USED IN THE
CONSTRUCTION CANNOT BE CONSIDERED AS PROPERTY USED IN THE REGULAR TRADE
OR BUSINESS OF THE TAXPAYER." 

/4/  "(DEPARTMENT RULINGS NOT PROMULGATED BY THE SECRETARY ARE OF
LITTLE AID IN INTERPRETING A TAX STATUTE . . .," BIDDLE V.
COMMISSIONER, 302 U.S. 573, 582.  INDEED, EACH ISSUE OF THE INTERNAL
REVENUE BULLETIN WARNS THAT "REVENUE RULINGS . . . REPORTED IN THE
BULLETIN DO NOT HAVE THE FORCE AND EFFECT OF TREASURY DEPARTMENT
REGULATIONS.  . . ." 

KEITH A. JONES ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
CRAMPTON, AND ELMER J. KELSEY. 

FRANK NORTON KERN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS LAWRENCE CHASE WILSON. 
..END :


















RICHARDSON V. RAMIREZ, 418 U.S. 24 


       RICHARDSON, COUNTY CLERK AND REGISTRAR OF VOTERS OF

           MENDOCINO COUNTY V. RAMIREZ ET AL.

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

        NO. 72 - 1589.  ARGUED JANUARY 15, 1974--DECIDED JUNE 24,

      1974; 9 CAL. 3D 199, 507 P. 2D 1345, REVERSED AND

         REMANDED. 


    AFTER THE THREE INDIVIDUAL RESPONDENTS, WHO HAD BEEN CONVICTED

  OF FELONIES AND HAD COMPLETED THEIR SENTENCES AND PAROLES, WERE

  REFUSED REGISTRATION TO VOTE IN THREE DIFFERENT CALIFORNIA

  COUNTIES RESPECTIVELY BECAUSE OF THEIR FELONY CONVICTIONS, THEY

  BROUGHT A CLASS PETITION, ON BEHALF OF THEMSELVES AND ALL OTHER

  EX-FELONS SIMILARLY SITUATED, FOR A WRIT OF MANDATE IN THE

  CALIFORNIA SUPREME COURT, NAMING AS DEFENDANTS THE SECRETARY OF

  STATE AND THE THREE COUNTY ELECTION OFFICIALS WHO HAD DENIED THEM

REGISTRATION "INDIVIDUALLY AND AS REPRESENTATIVES OF THE CLASS OF

  ALL OTHER" COUNTY ELECTION OFFICIALS IN THE STATE, AND

  CHALLENGING THE CONSTITUTIONALITY OF RESPONDENTS'

 DISENFRANCHISEMENT ON THE GROUND, INTER ALIA, THAT PROVISIONS OF

  THE CALIFORNIA CONSTITUTION AND THE IMPLEMENTING STATUTES THAT

  DISENFRANCHISED EX-FELONS DENIED THEM EQUAL PROTECTION.  THE

  THREE COUNTY OFFICIALS NAMED AS DEFENDANTS DECIDED NOT TO CONTEST

  THE ACTION AND TOLD THE COURT THEY WOULD HENCEFORTH REGISTER TO

  VOTE EX-FELONS, INCLUDING RESPONDENTS, WHOSE SENTENCES AND

  PAROLES HAD EXPIRED.  PRIOR TO THE RETURN DATE OF THE WRIT, THE

  COURT ADDED TO THE NAMED DEFENDANTS (INSTEAD OF ALLOWING HER TO

  INTERVENE) ANOTHER COUNTY ELECTION OFFICIAL (PETITIONER HERE) WHO

  WAS THE DEFENDANT IN A SIMILAR ACTION BY AN EX-FELON PENDING IN

  THE STATE COURT OF APPEAL.  AFTER HOLDING THAT THE THREE

  FIRST-NAMED COUNTY OFFICIALS' ACQUIESCENCE DID NOT RENDER THE

  CASE MOOT, THE CALIFORNIA SUPREME COURT WENT ON TO HOLD THAT THE

  CONSTITUTIONAL AND STATUTORY PROVISIONS IN QUESTION, AS APPLIED

  TO EX-FELONS WHOSE SENTENCES AND PAROLES HAD EXPIRED, VIOLATED

  THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, BUT DID

  NOT ISSUE THE PEREMPTORY WRIT.  HELD: 

     1.  IN VIEW OF ITS UNUSUAL PROCEDURAL HISTORY IN THE SUPREME

  COURT OF CALIFORNIA, THE CASE IS NOT MOOT.  PP. 34 - 40. 

     (A) THE STATE SUPREME COURT'S ACTION IN ADDING PETITIONER AS A

  NAMED DEFENDANT AFTER THE OTHER NAMED COUNTY OFFICIALS DECIDED

 NOT TO CONTEST THE ACTION, AND AT A TIME WHEN THE SECRETARY OF

  STATE (WHO DID NOT JOIN IN THE PETITION TO THIS COURT) WAS STILL

  A PARTY DEFENDANT WHO HAD ANSWERED THE COMPLAINT, INDICATES THAT

  THE COURT CONSIDERED THE SUIT TO BE NOT ONLY ON BEHALF OF THE

  THREE NAMED PLAINTIFFS, BUT ALSO ON BEHALF OF ALL EX-FELONS IN

  CALIFORNIA SIMILARLY SITUATED, AND ALSO THAT THE COURT REGARDED

  PETITIONER'S OPPONENT IN THE COURT OF APPEAL SUIT, BOTH AS AN

  UNNAMED MEMBER OF THE CLASS OF EX-FELONS REFERRED TO IN THE

  COMPLAINT AND AS ONE OF A CLASS ACTUALLY SEEKING TO REGISTER IN

  PETITIONER'S COUNTY, AS A PARTY TO THE SUPREME COURT ACTION.  PP.

  38 - 40. 

     (B) BEING RENDERED IN A CLASS ACTION IN WHICH RELIEF IN THE

  NATURE OF DECLARATORY RELIEF WAS GRANTED, THE DECISION BELOW IS

  NOT ONLY BINDING ON PETITIONER AND THUS DISPOSITIVE OF HER OTHER

  SUIT, BUT ALSO DECIDES THE FEDERAL CONSTITUTIONAL QUESTION

  PRESENTED FOR THE UNNAMED MEMBERS OF THE CLASSES REPRESENTED

BELOW BY PETITIONER AND RESPONDENTS, WHOSE CONTINUING CONTROVERSY

  IN THE STATE SUPREME COURT STILL CONTINUES IN THIS COURT. 

  BROCKINGTON V. RHODES, 396 U.S. 41, DISTINGUISHED.  P. 40. 

     2.  CALIFORNIA, IN DISENFRANCHISING CONVICTED FELONS WHO HAVE

  COMPLETED THEIR SENTENCES AND PAROLES, DOES NOT VIOLATE THE EQUAL

  PROTECTION CLAUSE.  PP. 41 - 56. 

     (A) THE UNDERSTANDING OF THE FRAMERS OF THE FOURTEENTH

  AMENDMENT, AS REFLECTED IN THE EXPRESS LANGUAGE OF 2 OF THE

  AMENDMENT, WHICH EXEMPTS FROM THE SANCTION OF REDUCED

  CONGRESSIONAL REPRESENTATION RESULTING FROM THE DENIAL OF

  CITIZENS'  RIGHT TO VOTE, THE DENIAL OF SUCH RIGHT FOR

  "PARTICIPATION IN REBELLION, OR OTHER CRIME," AND IN THE

  HISTORICAL AND JUDICIAL INTERPRETATION OF THE AMENDMENT'S

  APPLICABILITY TO STATE LAWS DISENFRANCHISING FELONS, IS OF

  CONTROLLING SIGNIFICANCE IN DISTINGUISHING SUCH LAWS FROM THOSE

  OTHER STATE LIMITATIONS ON THE FRANCHISE THAT THIS COURT HAS HELD

  INVALID UNDER THE EQUAL PROTECTION CLAUSE.  PP. 54 - 55. 

     (B) SECTION 1 OF THE FOURTEENTH AMENDMENT, WHICH CONTAINS THE

  EQUAL PROTECTION CLAUSE, IN DEALING WITH VOTING RIGHTS AS IT

  DOES, COULD NOT HAVE BEEN MEANT TO BAR OUTRIGHT A FORM OF

  DISENGRANCHISEMENT THAT WAS EXPRESSLY EXEMPTED FROM THE LESS

 DRASTIC SANCTION OF REDUCED REPRESENTATION THAT 2 IMPOSED FOR

  OTHER FORMS OF DISENFRANCHISEMENT.  P. 55. 

(C) EVEN IF 2 WAS MADE PART OF THE AMENDMENT "'LARGELY THROUGH

  THE ACCIDENT OF POLITICAL EXIGENCY RATHER THAN FOR THE RELATION

  WHICH IT BORE TO THE OTHER SECTIONS OF AMENDMENT,'" AS

  RESPONDENTS CONTEND, THIS DOES NOT PRECLUDE LOOKING TO IT FOR

  GUIDANCE IN INTERPRETING 1, SINCE 2 IS AS MUCH A PART OF THE

  AMENDMENT AS ANY OF THE OTHER SECTIONS, AND HOW IT BECAME PART OF

  THE AMENDMENT IS LESS IMPORTANT THAN WHAT IT SAYS AND WHAT IT

  MEANS.  P. 55. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING STATEMENT, POST, P. 86.  MARSHALL, J., FILED A
DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED AND IN PART I - A OF
WHICH DOUGLAS, J., JOINED, POST, P. 56. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

THE THREE INDIVIDUAL RESPONDENTS IN THIS CASE WERE CONVICTED OF
FELONIES AND HAVE COMPLETED THE SERVICE OF THEIR RESPECTIVE SENTENCES
AND PAROLES.  THEY FILED A PETITION FOR A WRIT OF MANDATE IN THE
SUPREME COURT OF CALIFORNIA TO COMPEL CALIFORNIA COUNTY ELECTION
OFFICIALS TO REGISTER THEM AS VOTERS.  /1/  THEY CLAIMED, ON BEHALF OF
THEMSELVES AND OTHERS SIMILARLY SITUATED, THAT APPLICATION TO THEM OF
THE PROVISIONS OF THE CALIFORNIA CONSTITUTION AND IMPLEMENTING STATUTES
WHICH DISENFRANCHISED PERSONS CONVICTED OF AN "INFAMOUS CRIME" DENIED
THEM THE RIGHT TO EQUAL PROTECTION OF THE LAWS UNDER THE FEDERAL
CONSTITUTION.  THE SUPREME COURT OF CALIFORNIA HELD THAT "AS APPLIED TO
ALL EX-FELONS WHOSE TERMS OF INCARCERATION AND PAROLE HAVE EXPIRED, THE
PROVISIONS OF ARTICLE II AND ARTICLE XX, SECTION 11, OF THE CALIFORNIA
CONSTITUTION DENYING THE RIGHT OF SUFFRAGE TO PERSONS CONVICTED OF
CRIME, TOGETHER WITH THE SEVERAL SECTIONS OF THE ELECTIONS CODE
IMPLEMENTING THAT DISQUALIFICATION . . ., VIOLATE THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT."  RAMIREZ V. BROWN, 9 CAL.3D 199,
216 - 217, 507 P.2D 1345, 1357 (1973).  WE GRANTED CERTIORARI, 414 U.S.
816 (1973). 

ARTICLE XX, 11, OF THE CALIFORNIA CONSTITUTION HAS PROVIDED SINCE
ITS ADOPTION IN 1879 THAT "(LAWS SHALL BE MADE" TO EXCLUDE FROM VOTING
PERSONS CONVICTED OF BRIBERY, PERJURY, FORGERY, MALFEASANCE IN OFFICE,
"OR OTHER HIGH CRIMES."  AT THE TIME RESPONDENTS WERE REFUSED
REGISTRATION, FORMER ART. II, 1, OF THE CALIFORNIA CONSTITUTION
PROVIDED IN PART THAT "NO ALIEN INELIGIBLE TO CITIZENSHIP, NO IDIOT, NO
INSANE PERSON, NO PERSON CONVICTED OF ANY INFAMOUS CRIME, NO PERSON
HEREAFTER CONVICTED OF THE EMBEZZLEMENT OR MISAPPROPRIATION OF PUBLIC
MONEY, AND NO PERSON WHO SHALL NOT BE ABLE TO READ THE CONSTITUTION IN
THE ENGLISH LANGUAGE AND WRITE HIS OR HER NAME, SHALL EVER EXERCISE THE
PRIVILEGES OF AN ELECTOR IN THIS STATE."  /2/  SECTIONS 310 AND 321 OF
THE CALIFORNIA ELECTIONS CODE PROVIDE THAT AN AFFIDAVIT OF REGISTRATION
SHALL SHOW WHETHER THE AFFIANT HAS BEEN CONVICTED OF "A FELONY WHICH
DISQUALIFIES (HIM) FROM VOTING."  /3/  SECTIONS 383, 389, AND 390
DIRECT THE COUNTY CLERK TO CANCEL THE REGISTRATION OF ALL VOTERS WHO
HAVE BEEN CONVICTED OF "ANY INFAMOUS CRIME OR OF THE EMBEZZLEMENT OR
MISAPPROPRIATION OF ANY PUBLIC MONEY."  /4/  SECTIONS 14240 AND 14246
PERMIT A VOTER'S QUALIFICATIONS TO BE CHALLENGED ON THE GROUND THAT HE
HAS BEEN CONVICTED OF "A FELONY" OR OF "THE EMBEZZLEMENT OR
MISAPPROPRIATION OF PUBLIC MONEY."  /5/  CALIFORNIA PROVIDES BY STATUTE
FOR RESTORATION OF THE RIGHT TO VOTE TO PERSONS CONVICTED OF CRIME
EITHER BY COURT ORDER AFTER THE COMPLETION OF PROBATION, /6/  OR, IF A
PRISON TERM WAS SERVED, BY EXECUTIVE PARDON AFTER COMPLETION OF
REHABILITATION PROCEEDINGS.  /7/  CALIFORNIA ALSO PROVIDES A PROCEDURE
BY WHICH A PERSON REFUSED REGISTRATION MAY OBTAIN JUDICIAL REVIEW OF
HIS DISQUALIFICATION.  /8/ 

EACH OF THE INDIVIDUAL RESPONDENTS WAS CONVICTED OF ONE OR MORE
FELONIES, AND SERVED SOME TIME IN JAIL OR PRISON FOLLOWED BY A
SUCCESSFULLY TERMINATED PAROLE.  RESPONDENT RAMIREZ WAS CONVICTED IN
TEXAS; RESPONDENTS LEE AND GILL WERE CONVICTED IN CALIFORNIA.  WHEN
RAMIREZ APPLIED TO REGISTER TO VOTE IN SAN LUIS OBISPO COUNTY, THE
COUNTY CLERK REFUSED TO ALLOW HIS TO REGISTER.  THE MONTEREY COUNTY
CLERK REFUSED REGISTRATION TO RESPONDENT LEE, AND THE STANISLAUS COUNTY
REGISTRAR OF VOTERS (HEREAFTER ALSO INCLUDED IN REFERENCES TO CLERKS)
REFUSED REGISTRATION TO RESPONDENT GILL.  ALL THREE RESPONDENTS WERE
REFUSED REGISTRATION BECAUSE OF THEIR FELONY CONVICTIONS.  /9/ 

IN MAY 1972 RESPONDENTS FILED A PETITION FOR A WRIT OF MANDATE IN
THE SUPREME COURT OF CALIFORNIA, INVOKING ITS ORIGINAL JURISDICTION. 
/10/  THEY NAMED AS DEFENDANT /11/  BELOW THE THREE ELECTION OFFICIALS
OF SAN LUIS OBISPO, MONTEREY, AND STANISLAUS COUNTIES WHO HAD REFUSED
TO ALLOW THEM TO REGISTER, "INDIVIDUALLY AND AS REPRESENTATIVES OF THE
CLASS OF ALL OTHER COUNTY CLERKS AND REGISTRARS OF VOTERS WHO HAVE THE
DUTY OF DETERMINING FOR THEIR RESPECTIVE COUNTIES WHETHER ANY EX-FELON
WILL BE DENIED THE RIGHT TO VOTE."  THE PETITION FOR A WRIT OF MANDATE
CHALLENGED THE CONSTITUTIONALITY OF RESPONDENTS'  EXLUSION FROM THE
VOTING ROLLS ON TWO GROUNDS.  FIRST, IT WAS CONTENDED THAT CALIFORNIA'S
DENIAL OF THE FRANCHISE TO THE CLASS OF EX-FELONS COULD NO LONGER
WITHSTAND SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  RELYING ON THE COURT'S RECENT VOTING-RIGHTS CASES,
RESPONDENTS ARGUED THAT A COMPELLING STATE INTEREST MUST BE FOUND TO
JUSTIFY EXCLUSION OF A CLASS FROM THE FRANCHISE, AND THAT CALIFORNIA
COULD ASSERT NO SUCH INTEREST WITH RESPECT TO EX-FELONS.  SECOND,
RESPONDENTS CONTENDED THAT APPLICATION OF THE CHALLENGED CALIFORNIA
CONSTITUTIONAL AND STATUTORY PROVISIONS BY ELECTION OFFICIALS OF THE
STATE'S 58 COUNTIES WAS SO LACKING IN UNIFORMITY AS TO ITSELF DENY THEM
DUE PROCESS AND "GEOGRAPHICAL . . . EQUAL PROTECTION."  THEY APPENDED A
REPORT BY RESPONDENT CALIFORNIA SECRETARY OF STATE, AND THE
QUESTIONNAIRES RETURNED BY COUNTY ELECTION OFFICIALS ON WHICH IT WAS
BASED.  THE REPORT CONCLUDED THAT THERE WAS WIDE VARIATION IN THE
COUNTY ELECTION OFFICIALS' INTERPRETATION OF THE CHALLENGED VOTING
EXCLUSION.  /12/  THE SUPREME COURT OF CALIFORNIA UPHELD THE FIRST
CONTENTION AND THEREFORE DID NOT REACH THE SECOND ONE. 

        I 

BEFORE REACHING RESPONDENTS' CONSTITUTIONAL CHALLENGE, THE SUPREME
COURT OF CALIFORNIA CONSIDERED WHETHER A DECISION REACHED BY THE THREE
COUNTY CLERKS NOT TO CONTEST THE ACTION, TOGETHER WITH THEIR
REPRESENTATION TO THE COURT THAT THEY WOULD HENCEFORTH PERMIT ALL EX
FELONS WHOSE TERMS OF INCARCERATION AND PAROLE HAD EXPIRED TO REGISTER
AND VOTE, RENDERED THIS CASE MOOT.  THAT COURT DECIDED THAT IT DID
NOT.  THE ACQUIESCENCE OF THE THREE OFFICIALS WAS IN NO WAY BINDING ON
ELECTION OFFICIALS OF THE OTHER 55 CALIFORNIA COUNTIES IN WHICH
RESPONDENTS MIGHT CHOOSE TO RESIDE, AND IT WAS UNDISPUTED THAT THERE
WERE MANY EX-FELONS AMONG THE RESIDENTS OF THOSE COUNTIES WHO HAD BEEN
OR WOULD BE REFUSED REGISTRATION ON THE GROUND CHALLENGED.  BECAUSE THE
CASE POSED A QUESTION OF BROAD PUBLIC INTEREST, WHICH WAS LIKELY TO
RECUR AND WHICH SHOULD RECEIVE A STATEWIDE RESOLUTION, THE COURT
EXERCISED ITS "INHERENT DISCRETION TO RESOLVE THE ISSUE, 'EVEN THOUGH
AN EVENT OCCURRING DURING ITS PENDENCY WOULD NORMALLY RENDER THE MATTER
MOOT.'  . . . THIS RULE IS PARTICULARLY APPLICABLE TO CHALLENGES TO THE
VALIDITY OF ELECTION LAWS."  9 CAL.3D,AT 203, 507 P.2D,AT 1347.  IN
ADDITION TO CALIFORNIA CASES, THE COURT CITED ROE V. WADE, 410 U.S. 113
(1973), AND GOOSBY V. OSSER, 409 U.S. 512 (1973). 

AS A PRACTICAL MATTER, THERE CAN BE NO DOUBT THAT THERE IS A
SPIRITED DISPUTE BETWEEN THE PARTIES IN THIS COURT AS TO THE
CONSTITUTIONALITY OF THE CALIFORNIA PROVISIONS DISENFRANCHISING EX
FELONS.  EVEN THOUGH THE SUPREME COURT OF CALIFORNIA DID NOT IN FACT
ISSUE A PERMANENT WRIT OF MANDATE, AND THEREFORE ITS JUDGMENT IS IN
EFFECT A DECLARATORY JUDGMENT, AN ACTION FOR SUCH RELIEF MAY STEM FROM
A CONTROVERSY THAT IS "DEFINITE AND CONCRETE, TOUCHING THE LEGAL
RELATIONS OF PARTIES HAVING ADVERSE LEGAL INTERESTS,"  AETNA LIFE
INSURANCE CO. V. HAWORTH, 300 U.S. 227, 240 - 241 (1937).  BY REASON OF
THE SPECIAL RELATIONSHIP OF THE PUBLIC OFFICIALS IN A STATE TO THE
COURT OF LAST RESORT OF THAT STATE, THE DECISION OF THE SUPREME COURT
OF CALIFORNIA, IF LEFT STANDING, LEAVES THE PERMANENTLY BOUND BY ITS
CONCLUSION ON A MATTER OF FEDERAL CONSTITUTIONAL LAW.  CF. NORTH DAKOTA
PHARMACY BD. V. SNYDER'S STORES, 414 U.S. 156 (1973). 

THIS CASE IN SOME RESPECTS PRESENTS STRONGER ARGUMENTS FOR
CONCLUDING THAT A LIVE CASE OR CONTROVERSY REMAINS THAN IN OTHER
ELECTION CASES IN WHICH WE HAVE ADDRESSED THE QUESTION OF MOOTNESS. 
UNLIKE MOORE V. OGILVIE, 394 U.S. 814 (1969), IN WHICH THE PARTICULAR
CANDIDACY WAS NOT APT TO BE REVIVED IN A FUTURE ELECTION, OR HALL V.
BEALS, 396 U.S. 45 (1969), IN WHICH THE VOTERS WHO HAD BEEN
DISENFRANCHISED BECAUSE OF A RESIDENCE REQUIREMENT WOULD NOT HAVE
SUFFERED THE SAME FATE UNDER THE AMENDED STATUTE, RESPONDENTS HERE ARE
INDEFINITELY DISENFRANCHISED BY THE PROVISIONS OF CALIFORNIA LAW WHICH
THEY CHALLENGE.  WHILE THE SITUATION IN MOORE V. OGILVIE, SUPRA, WAS
DESCRIBED AS "'CAPABLE OF REPETITION, YET EVADING REVIEW,'" 394 U.S.,AT
816, THAT INVOLVED HERE CAN BEST BE DESCRIBED, IN VIEW OF THE SUPREME
COURT OF CALIFORNIA'S DECISION AGAINST THE STATE OFFICIALS AND THEIR
OBLIGATION TO FOLLOW THE LAW AS LAID DOWN BY THAT COURT, AS "INCAPABLE
OF REPETITION," AND THEREFORE EVADING REVIEW.  THERE ARE THUS THE
STRONGEST SORTS OF PRACTICAL ARGUMENTS, AS WELL AS THE LANGUAGE OF
MOORE V. OGILVIE, SUPRA, WHICH MILITATE AGAINST A CONCLUSION OF
MOOTNESS IN THIS CASE. 

BUT PURELY PRACTICAL CONSIDERATIONS HAVE NEVER BEEN THOUGHT TO BE
CONTROLLING BY THEMSELVES ON THE ISSUE OF MOOTNESS IN THIS COURT. 
WHILE THE SUPREME COURT OF CALIFORNIA MAY CHOOSE TO ADJUDICATE A
CONTROVERSY SIMPLY BECAUSE OF ITS PUBLIC IMPORTANCE, AND THE
DESIRABILITY OF A STATEWIDE DECISION, WE ARE LIMITED BY THE CASE-OR
CONTROVERSY REQUIREMENT OF ART. III TO ADJUDICATION OF ACTUAL DISPUTES
BETWEEN ADVERSE PARTIES. 

THE MOOTNESS PROBLEM HERE ARISES BECAUSE, AS IT NOTED, THE SUPREME
COURT OF CALIFORNIA WAS ASSURED BY THE THREE COUNTY CLERKS WHO WERE
NAMED AS DEFENDANTS THAT THE THREE NAMED PLAINTIFFS WOULD BE ALLOWED TO
REGISTER AND VOTE.  THE THREE NAMED PLAINTIFFS RESIDED RESPECTIVELY IN
THE CALIFORNIA COUNTIES OF SAN LUIS OBISPO, MONTEREY, AND STANISLAUS,
AND THE COUNTY CLERKS OF THOSE COUNTIES WHO WERE NAMED AS DEFENDANTS
NEITHER DEFENDED THE ACTION IN THE SUPREME COURT OF CALIFORNIA NOR
SOUGHT REVIEW HERE.  PETITIONER HERE IS THE COUNTY CLERK OF MENDOCINO
COUNTY, WHO THOUGH OF COURSE BOUND BY THE JUDGMENT OF THE SUPREME COURT
OF CALIFORNIA, SINCE SHE WAS MADE A PARTY TO THAT ACTION, HAS NO
CONCRETE DISPUTE WITH VOTERS WHO RESIDE IN OTHER COUNTIES.  THUS IF THE
CASE WERE LIMITED TO THE NAMED PARTIES ALONE, IT COULD BE PERSUASIVELY
ARGUED THAT THERE WAS NO PRESENT DISPUTE ON THE ISSUE OF THE RIGHT TO
REGISTER BETWEEN THE THREE NAMED INDIVIDUAL RESPONDENTS IN THIS COURT
AND THE ONE NAMED PETITIONER HERE. 

WE THINK, HOWEVER, THAT THE UNUSUAL PROCEDURAL HISTORY OF THE CASE
IN THE SUPREME COURT OF CALIFORNIA LEADS TO THE CONCLUSION THAT THE
LITIGATION BEFORE US IS NOT MOOT.  THE INDIVIDUAL NAMED PLAINTIFFS
BROUGHT THEIR ACTION IN THE SUPREME COURT OF CALIFORNIA ON BEHALF OF
THEMSELVES AND ALL OTHER EX-FELONS SIMILARLY SITUATED, AND NOT SIMPLY
THOSE EX-FELONS RESIDING IN THE COUNTIES IN WHICH THE NAMED PLAINTIFFS
RESIDED.  WHILE ONLY THE COUNTY CLERKS OF STANISLAUS, MONTEREY, AND SAN
LUIS OBISPO WERE NAMED PARTIES DEFENDANT, THEY WERE DESIGNATED IN THE
ORIGINAL COMPLAINT FILED IN THE SUPREME COURT OF CALIFORNIA "AS
REPRESENTATIVES OF THE CLASS OF ALL OTHER COUNTY CLERKS."  THE
CALIFORNIA SECRETARY OF STATE WAS LIKEWISE NAMED A PARTY DEFENDANT.  ON
THE BASIS OF THIS COMPLAINT, THE SUPREME COURT OF CALIFORNIA ISSUED AN
ALTERNATIVE WRIT OF MANDATE DIRECTED TO THE THREE NAMED COUNTY CLERKS
"INDIVIDUALLY AND AS REPRESENTATIVES OF THE CLASS OF ALL OTHER COUNTY
CLERKS AND REGISTRARS OF VOTERS," DIRECTING THEM TO REGISTER TO VOTE
NOT SIMPLY THE THREE NAMED PLAINTIFFS, BUT "ALL EX-FELONS WHOSE TERM OF
INCARCERATION AND PAROLE HAVE EXPIRED AND WHO UPON APPLICATION
DEMONSTRATE THAT THEY ARE OTHERWISE FULLY QUALIFIED TO VOTE," OR IN THE
ALTERNATIVE TO SHOW CAUSE WHY THEY HAD NOT DONE SO UPON THE RETURN DATE
OF THE WRIT.  THUS, WHILE THE SUPREME COURT OF CALIFORNIA DID NOT IN SO
MANY WORDS SAY THAT IT WAS PERMITTING RESPONDENTS TO PROCEED BY WAY OF
A "CLASS ACTION," THE FACT THAT THE COURT'S PROCESS RECITED THAT THE
NAMED CLERKS WERE SUBJECT TO IT "INDIVIDUALLY AND AS REPRESENTATIVES OF
THE CLASS OF ALL OTHER COUNTY CLERKS AND REGISTRARS OF VOTERS," AND THE
FACT THAT THE BENEFICIARIES OF THAT PROCESS WERE NOT MERELY THE NAMED
PLAINTIFFS BUT "ALL EX-FELONS WHOSE TERM OF INCARCERATION AND PAROLE
(HAD) EXPIRED . . ."  INDICATES THAT THE COURT TREATED THE ACTION AS
ONE BROUGHT FOR THE BENEFIT OF THE CLASS DESCRIBED IN THE PETITION FOR
THE WRIT OF MANDATE. 

PETITIONER VIOLA RICHARDSON, THE COUNTY CLERK OF MENDOCINO COUNTY,
FILED A COMPLAINT IN INTERVENTION IN THE ACTION IN THE SUPREME COURT OF
CALIFORNIA, ALLEGING THAT THE SUIT AS FRAMED BY THE NAMED PLAINTIFFS
WAS COLLUSIVE, IN THAT NEITHER THE THREE NAMED COUNTY CLERKS NOR THE
SECRETARY OF STATE COULD BE EXPECTED TO CONTEST THE CLAIMS OF
PLAINTIFFS.  PETITIONER VIOLA RICHARDSON FURTHER ALLEGED IN HER
COMPLAINT OF INTERVENTION THAT SHE WAS A PARTY TO A LAWSUIT BROUGHT
AGAINST HER BY AN EX-FELON (ALSO NAMED RICHARDSON) WHO HAD SOUGHT TO
REGISTER IN MENDOCINO COUNTY, HAD BEEN DENIED THE RIGHT, AND WHOSE SUIT
SEEKING TO ESTABLISH THE RIGHT WAS THEN PENDING IN THE STATE COURT OF
APPEAL. 

THE COUNTY CLERKS ACTUALLY NAMED AS DEFENDANTS IN THE MANDATE ACTION
EACH OBEYED THE ALTERNATIVE WRIT ISSUED BY THE SUPREME COURT OF
CALIFORNIA, AND DID NOT CONTEST THE NAMED PLAINTIFFS' LEGAL CLAIM THAT
THEY HAD A RIGHT TO VOTE SECURED BY THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT WHICH OVERRODE THE CONTRARY PROVISIONS OF THE
CALIFORNIA CONSTITUTION.  THE SECRETARY OF STATE APPEARED IN THE ACTION
AND GENERALLY DENIED THE NAMED PLAINTIFFS' ESSENTIAL CLAIMS.     THE
SUPREME COURT OF CALIFORNIA, PRIOR TO THE RETURN DATE OF THE WRIT,
ISSUED AN ORDER DENYING PETITIONER RICHARDSON'S MOTION TO INTERVENE,
BUT INSTEAD ORDERED HER ADDED TO THE NAMED DEFENDANTS IN THE ACTION
ALONG WITH THE THREE OTHER NAMED DEFENDANTS IN THE ACTION ALONG WITH
THE THREE OTHER NAMED COUNTY CLERKS AND THE SECRETARY OF STATE.  THIS
ACTION IN THE SUPREME COURT OF CALIFORNIA, COMING AS IT DID AFTER THE
ACQUIESCENCE OF THE NAMED CLERKS IN THE COUNTIES IN WHICH THE NAMED
PLAINTIFFS RESIDED, AND YET AT A TIME WHEN THE SECRETARY OF STATE WAS
STILL A PARTY DEFENDANT WHO HAD ANSWERED THE COMPLAINT, CLEARLY
INDICATES TO US THAT THAT COURT CONSIDERED THE ACTION TO BE NOT ONLY ON
BEHALF OF THE THREE NAMED PLAINTIFFS, BUT ALSO ON BEHALF OF ALL EX
FELONS IN CALIFORNIA SIMILARLY SITUATED.  WE ARE REINFORCED IN THIS
CONCLUSION BY THE LANGUAGE QUOTED ABOVE FROM THE ALTERNATIVE WRIT OF
MANDATE ISSUED BY THE SUPREME COURT OF CALIFORNIA.  HAD THE SUPREME
COURT OF CALIFORNIA BASED ITS ACTION ON PETITIONER RICHARDSON'S CLAIM
THAT THE SUIT WAS COLLUSIVE, AND THAT IT MIGHT BECOME A BINDING
PRECEDENT IN HER LITIGATION THEN PENDING IN THE STATE COURT OF APPEAL,
IT WOULD SEEM TO HAVE BEEN SUFFICIENT TO GRANT THE MOTION TO
INTERVENE.  BUT THE COURT'S ACTION ADDING PETITIONER RICHARDSON AS A
NAMED DEFENDANT WOULD APPEAR TO HAVE BEEN BASED ON ITS CONCLUSION THAT
AT LEAST SOME MEMBERS OF THE CLASS REPRESENTED BY THE PLAINTIFFS IN
FACT RESIDED IN MENDOCINO COUNTY, AND WERE THERE SEEKING TO EXERCISE
THEIR RIGHT TO VOTE.  IN REACHING SUCH A CONCLUSION, OF COURSE, THE
SUPREME COURT OF CALIFORNIA HAD BEFORE IT PETITIONER RICHARDSON'S
ALLEGATION THAT AT LEAST HER OPPONENT IN THE LITIGATION PENDING IN THE
COURT OF APPEAL WAS NOT MERELY SEEKING TO REGISTER TO VOTE IN MENDOCINO
COUNTY, BUT HAD BROUGHT A LAWSUIT TO ENFORCE HIS CLAIM. 

AT THE TIME PETITIONER RICHARDSON WAS ADDED AS A PARTY DEFENDANT,
THE THREE NAMED PLAINTIFFS HAD OBTAINED THE RELIEF WHICH THEY SOUGHT,
WHEREAS THE REMAINING MEMBERS OF THE CLASS, INCLUDING PETITIONER
RICHARDSON'S OPPONENT IN THE COURT OF APPEAL LITIGATION, HAD NOT.  WE
HAVE HELD THAT IN THE FEDERAL SYSTEM ONE MAY NOT REPRESENT A CLASS OF
WHICH HE IS NOT A PART, BAILEY V. PATTERSON, 369 U.S. 31, 32 - 33
(1962), AND IF THIS ACTION HAD ARISEN IN THE FEDERAL COURTS THERE WOULD
BE SERIOUS DOUBT AS TO WHETHER IT COULD HAVE PROCEEDED AS A CLASS
ACTION ON BEHALF OF THE CLASS OF EX-FELONS DENIED THE RIGHT TO REGISTER
AFTER THE THREE NAMED PLAINTIFFS HAD BEEN GRANTED THAT RIGHT.  INDIANA
EMPLOYMENT SECURITY DIV. V. BURNEY, 409 U.S. 540 (1973).  BUT
CALIFORNIA IS AT LIBERTY TO PRESCRIBE ITS OWN RULES FOR CLASS ACTIONS,
SUBJECT ONLY TO WHETHER LIMITS MAY BE IMPOSED BY THE UNITED STATES
CONSTITUTION, AND WE INTERPRET ITS ACTION IN ADDING PETITIONER
RICHARDSON AS A DEFENDANT TO MEAN THAT IT REGARDED HER OPPONENT IN THE
COURT OF APPEAL LITIGATION, BOTH AS AN UNNAMED MEMBER OF THE CLASS OF
EX-FELONS REFERRED TO IN THE MANDATE COMPLAINT, AND AS ONE OF A CLASS
ACTUALLY SEEKING TO REGISTER IN MENDOCINO COUNTY, AS A PARTY TO THE
ACTION IN THE SUPREME COURT OF CALIFORNIA, ALBEIT AN UNNAMED ONE. 

IN BROCKINGTON V. RHODES, 396 U.S. 41 (1969), WE EMPHASIZED IN
FINDING THE CASE MOOT THAT APPELLANT'S "SUIT DID NOT PURPORT TO BE A
CLASS ACTION, AND HE SOUGHT NO DECLARATORY RELIEF."  ID., AT 42.  WE
SAID: 

"(IN VIEW OF THE LIMITED NATURE OF THE RELIEF SOUGHT, WE THINK THE
CASE IS MOOT BECAUSE THE CONGRESSIONAL ELECTION IS OVER.  THE APPELLANT
DID NOT ALLEGE THAT HE INTENDED TO RUN FOR OFFICE IN ANY FUTURE
ELECTION.  HE DID NOT ATTEMPT TO MAINTAIN A CLASS ACTION ON BEHALF OF
HIMSELF AND OTHER PUTATIVE INDEPENDENT CANDIDATES, PRESENT OR FUTURE. 
HE DID NOT SUE FOR HIMSELF AND OTHERS SIMILARLY SITUATED AS INDEPENDENT
VOTERS, AS HE MIGHT HAVE UNDER OHIO LAW.  . . . HE DID NOT SEEK A
DECLARATORY JUDGMENT, ALTHOUGH THAT AVENUE TOO WAS OPEN TO HIM.  . .
."  ID., AT 43.  HERE, UNLIKE BROCKINGTON, THERE WAS A CLASS ACTION,
AND RELIEF IN THE NATURE OF DECLARATORY RELIEF WAS GRANTED.  THE
DECISION BELOW IS NOT ONLY BINDING ON PETITIONER RICHARDSON, AND THUS
DISPOSITIVE OF HER OTHER COURT OF APPEAL LITIGATION, BUT ALSO DECIDES
THE FEDERAL CONSTITUTIONAL QUESTION PRESENTED FOR THE UNNAMED MEMBERS
OF THE CLASSES REPRESENTED BELOW BY PETITIONER AND RESPONDENTS, WHOSE
CONTINUING CONTROVERSY LED THE SUPREME COURT OF CALIFORNIA TO CONCLUDE
THAT THIS CASE WAS NOT MOOT. 

THE BRIEFS OF THE PARTIES BEFORE US INDICATE THAT THE ADVERSE
ALIGNMENT IN THE SUPREME COURT OF CALIFORNIA CONTINUES IN THIS COURT,
AND WE THEREFORE HOLD THE CASE IS NOT MOOT.  /13/

        II 

UNLIKE MOST CLAIMS UNDER THE EQUAL PROTECTION CLAUSE, FOR THE
DECISION OF WHICH WE HAVE ONLY THE LANGUAGE OF THE CLAUSE ITSELF AS IT
IS EMBODIED IN THE FOURTEENTH AMENDMENT, RESPONDENTS' CLAIM IMPLICATES
NOT MERELY THE LANGUAGE OF THE EQUAL PROTECTION CLAUSE OF 1 OF THE
FOURTEENTH AMENDMENT, BUT ALSO THE PROVISIONS OF THE LESS FAMILIAR 2 OF
THE AMENDMENT: 

"REPRESENTATIVES SHALL BE APPORTIONED AMONG THE SEVERAL STATES
ACCORDING TO THEIR RESPECTIVE NUMBERS, COUNTING THE WHOLE NUMBER OF
PERSONS IN EACH STATE, EXCLUDING INDIANS NOT TAXED.  BUT WHEN THE RIGHT
TO VOTE AT ANY ELECTION FOR THE CHOICE OF ELECTORS FOR PRESIDENT AND
VICE PRESIDENT OF THE UNITED STATES, REPRESENTATIVES IN CONGRESS, THE
EXECUTIVE AND JUDICIAL OFFICERS OF A STATE, OR THE MEMBERS OF THE
LEGISLATURE THEREOF, IS DENIED TO ANY OF THE MALE INHABITANTS OF SUCH
STATE, BEING TWENTY-ONE YEARS OF AGE, AND CITIZENS OF THE UNITED
STATES, OR IN ANY WAY ABRIDGED, EXCEPT FOR PARTICIPATION IN REBELLION,
OR OTHER CRIME, THE BASIS OF REPRESENTATION THEREIN SHALL BE REDUCED IN
THE PROPORTION WHICH THE NUMBER OF SUCH MALE CITIZENS SHALL BEAR TO THE
WHOLE NUMBER OF MALE CITIZENS TWENTY-ONE YEARS OF AGE IN SUCH STATE." 
(EMPHASIS SUPPLIED.) 

PETITIONER CONTENDS THAT THE ITALICIZED LANGUAGE OF 2 EXPRESSLY
EXEMPTS FROM THE SANCTION OF THAT SECTION DISENFRANCHISEMENT GROUNDED
ON PRIOR CONVICTION OF A FELONY.  SHE GOES ON TO ARGUE THAT THOSE WHO
FRAMED AND ADOPTED THE FOURTEENTH AMENDMENT COULD NOT HAVE INTENDED TO
PROHIBIT OUTRIGHT IN 1 OF THAT AMENDMENT THAT WHICH WAS EXPRESSLY
EXEMPTED FOR THE LESSER SANCTION OF REDUCED REPRESENTATION IMPOSED BY 2
OF THE AMENDMENT.  THIS ARGUMENT SEEMS TO US A PERSUASIVE ONE UNLESS IT
CAN BE SHOWN THAT THE LANGUAGE OF 2, "EXCEPT FOR PARTICIPATION IN
REBELLION, OR OTHER CRIME," WAS INTENDED TO HAVE A DIFFERENT MEANING
THAN WOULD APPEAR FROM ITS FACE. 

THE PROBLEM OF INTERPRETING THE "INTENTION" OF A CONSTITUTIONAL
PROVISION IS, AS COUNTLESS CASES OF THIS COURT RECOGNIZE, A DIFFICULT
ONE.  NOT ONLY ARE THERE DELIBERATIONS OF CONGRESSIONAL COMMITTEES AND
FLOOR DEBATES IN THE HOUSE AND SENATE, BUT AN AMENDMENT MUST THEREAFTER
BE RATIFIED BY THE NECESSARY NUMBER OF STATES.  THE LEGISLATIVE HISTORY
BEARING ON THE MEANING OF THE RELEVANT LANGUAGE OF 2 IS SCANT INDEED;
THE FRAMERS OF THE AMENDMENT WERE PRIMARILY CONCERNED WITH THE EFFECT
OF REDUCED REPRESENTATION UPON THE STATES, RATHER THAN WITH THE TWO
FORMS OF DISENFRANCHISEMENT WHICH WERE EXEMPTED FROM THAT CONSEQUENCE
BY THE LANGUAGE WITH WHICH WE ARE CONCERNED HERE.  NONETHELESS, WHAT
LEGISLATIVE HISTORY THERE IS INDICATES THAT THIS LANGUAGE WAS INTENDED
BY CONGRESS TO MEAN WHAT IT SAYS. 

A PREDECESSOR OF 2 WAS CONTAINED IN AN EARLIER DRAFT OF THE PROPOSED
AMENDMENT, WHICH PASSED THE HOUSE OF REPRESENTATIVES, BUT WAS DEFEATED
IN THE SENATE EARLY IN 1866.  THE JOINT COMMITTEE OF FIFTEEN ON
RECONSTRUCTION THEN RECONVENED, AND FOR A SHORT PERIOD IN APRIL 1866,
REVISED AND REDRAFTED WHAT ULTIMATELY BECAME THE FOURTEENTH AMENDMENT. 
THE JOURNAL OF THAT COMMITTEE'S PROCEEDINGS SHOWS ONLY WHAT MOTIONS
WERE MADE AND HOW THE VARIOUS MEMBERS OF THE COMMITTEE VOTED ON THE
MOTIONS; IT DOES NOT INDICATE THE NATURE OR CONTENT OF ANY OF THE
DISCUSSION IN THE COMMITTEE.  WHILE THE JOURNAL THUS ENABLES US TO
TRACE THE EVOLUTION OF THE DRAFT LANGUAGE IN THE COMMITTEE, IT THROWS
ONLY INDIRECT LIGHT ON THE INTENTION OR PURPOSE OF THOSE WHO DRAFTED
2.  SEE B. KENDRICK, JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON
RECONSTRUCTION 104 - 120 (1914). 

WE DO KNOW THAT THE PARTICULAR LANGUAGE OF 2 UPON WHICH PETITIONER
RELIES WAS FIRST PROPOSED BY SENATOR WILLIAMS OF OREGON TO A MEETING OF
THE JOINT COMMITTEE ON APRIL 28, 1866.  SENATOR WILLIAMS MOVED TO
STRIKE OUT WHAT HAD BEEN 3 OF THE EARLIER VERSION OF THE DRAFT, AND TO
INSERT IN PLACE THEREOF THE FOLLOWING: 

     "REPRESENTATIVES SHALL BE APPORTIONED AMONG THE SEVERAL STATES

WHICH MAY BE INCLUDED WITHIN THIS UNION ACCORDING TO THEIR

 RESPECTIVE NUMBERS, COUNTING THE WHOLE NUMBER OF PERSONS IN EACH

  STATE EXCLUDING INDIANS NOT TAXED.  BUT WHENEVER IN ANY STATE THE

  ELECTIVE FRANCHISE SHALL BE DENIED TO ANY PORTION OF ITS MALE

  CITIZENS, NOT LESS THAN TWENTY-ONE YEARS OF AGE, OR IN ANY WAY

  ABRIDGED, EXCEPT FOR PARTICIPATION IN REBELLION OR OTHER CRIME,

  THE BASIS OF REPRESENTATION IN SUCH STATE SHALL BE REDUCED IN THE

  PROPORTION WHICH THE NUMBER OF SUCH MALE CITIZENS SHALL BEAR TO

  THE WHOLE NUMBER OF MALE CITIZENS NOT LESS THAN TWENTY-ONE YEARS

  OF AGE."  ID., AT 102. 

THE JOINT COMMITTEE APPROVED THIS PROPOSAL BY A LOPSIDED MARGIN, AND
THE DRAFT AMENDMENT WAS REPORTED TO THE HOUSE FLOOR WITH NO CHARGE IN
THE LANGUAGE OF 2. 

THROUGHOUT THE FLOOR DEBATES IN BOTH THE HOUSE AND THE SENATE, IN
WHICH NUMEROUS CHANGES OF LANGUAGE IN 2 WERE PROPOSED, THE LANGUAGE
"EXCEPT FOR PARTICIPATION IN REBELLION, OR OTHER CRIME" WAS NEVER
ALTERED.  THE LANGUAGE OF 2 ATTRACTED A GOOD DEAL OF INTEREST DURING
THE DEBATES, BUT MOST OF THE DISCUSSION WAS DEVOTED TO ITS FORESEEABLE
CONSEQUENCES IN BOTH THE NORTHERN AND SOUTHERN STATES, AND TO ARGUMENTS
AS TO ITS NECESSITY OR WISDOM.  WHAT LITTLE COMMENT THERE WAS ON THE
PHRASE IN QUESTION HERE SUPPORTS A PLAIN READING OF IT. 

CONGRESSMAN JOHN BINGHAM OF OHIO, WHO WAS ONE OF THE PRINCIPAL
ARCHITECTS OF THE FOURTEENTH AMENDMENT AND AN INFLUENTIAL MEMBER OF THE
COMMITTEE OF FIFTEEN, COMMENTED WITH RESPECT TO 2 AS FOLLOWS DURING THE
FLOOR DEBATES IN THE HOUSE: 

     "THE SECOND SECTION OF THE AMENDMENT SIMPLY PROVIDES FOR THE

  EQUALIZATION OF REPRESENTATION AMONG ALL THE STATES OF THE UNION,

  NORTH, SOUTH, EAST, AND WEST.  IT MAKES NO DISCRIMINATION.  NEW

  YORK HAS A COLORED POPULATION OF FIFTY THOUSAND.  BY THIS


  POPULATION AS TO THE ELECTIVE FRANCHISE, (EXCEPT IN CASES OF

  CRIME), SHE LOSES TO THAT EXTENT HER REPRESENTATIVE POWER IN

  CONGRESS.  SO ALSO WILL IT BE WITH EVERY OTHER STATE."  CONG.

  GLOBE, 39TH CONG., 1ST SESS., 2543 (1866). 

TWO OTHER REPRESENTATIVES WHO SPOKE TO THE QUESTION MADE SIMILAR
COMMENTS.  REPRESENTATIVE THOMAS ELIOT OF MASSACHUSETTS COMMENTED IN
SUPPORT OF THE ENACTMENT OF 2 AS FOLLOWS: 

"MANIFESTLY NO STATE SHOULD HAVE ITS BASIS OF NATIONAL
REPRESENTATION ENLARGED BY REASON OF A PORTION OF CITIZENS WITHIN ITS
BORDERS TO WHICH THE ELECTIVE FRANCHISE IS DENIED.  IF POLITICAL POWER
SHALL BE LOST BECAUSE OF SUCH DENIAL, NOT IMPOSED BECAUSE OF
PARTICIPATION IN REBELLION OR OTHER CRIME, IT IS TO BE HOPED THAT
POLITICAL INTERESTS MAY WORK IN THE LINE OF JUSTICE, AND THAT THE END
WILL BE THE IMPARTIAL ENFRANCHISEMENT OF ALL CITIZENS NOT DISQUALIFIED
BY CRIME.  ID., AT 2511. 

REPRESENTATIVE ECKLEY OF OHIO MADE THIS OBSERVATION: 

"UNDER A CONGRESSIONAL ACT PERSONS CONVICTED OF A CRIME AGAINST THE
LAWS OF THE UNITED STATES, THE PENALTY FOR WHICH IS IMPRISONMENT IN THE
PENITENTIARY, ARE NOW AND ALWAYS HAVE BEEN DISFRANCHISED, AND A PARDON
DID NOT RESTORE THEM UNLESS THE WARRANT OF PARDON SO PROVIDED. 

     ". . . BUT SUPPOSE THE MASS OF THE PEOPLE OF A STATE ARE

  PIRATES, COUNTERFEITERS, OR OTHER CRIMINALS, WOULD GENTLEMEN BE

  WILLING TO REPEAL THE LAWS NOW IN FORCE IN ORDER TO GIVE THEM AN

  OPPORTUNITY TO LAND THEIR PIRATICAL CRAFTS AND COME ON SHORE TO

  ASSIST IN THE ELECTION OF A PRESIDENT OR MEMBERS OF CONGRESS

  BECAUSE THEY ARE NUMEROUS?  AND LET IT BE BORNE IN MIND THAT

  THESE LATTER OFFENSES ARE ONLY CRIMES COMMITTED AGAINST PROPERTY;

  THAT OF TREASON IS AGAINST THE NATION, AGAINST THE WHOLE

PEOPLE--THE HIGHEST KNOWN TO THE LAW."  ID., AT 2535. 

THE DEBATES IN THE SENATE DID NOT COVER THE SUBJECT AS EXHAUSTIVELY
AS DID THE DEBATES IN THE HOUSE, APPARENTLY BECAUSE MANY OF THE
CRITICAL DECISIONS WERE MADE BY THE REPUBLICAN SENATORS IN AN
UNREPORTED SERIES OF CAUCUSES OFF THE FLOOR.  SENATOR SAULSBURY OF
DELAWARE, A DEMOCRAT WHO WAS NOT INCLUDED IN THE MAJORITY CAUCUS,
OBSERVED: 

     "IT IS VERY WELL KNOWN THAT THE MAJORITY OF THE MEMBERS OF
THIS

  BODY WHO FAVOR A PROPOSITION OF THIS CHARACTER HAVE BEEN IN VERY

  SERIOUS DELIBERATION FOR SEVERAL DAYS IN REFERENCE TO THESE

  AMENDMENTS, AND HAVE HELD SOME FOUR OR FIVE CAUCUSES ON THE

  SUBJECT."  ID., AT 2869. 

NONETHELESS, THE OCCASIONAL COMMENTS OF SENATORS ON THE LANGUAGE IN
QUESTION INDICATE AN UNDERSTANDING SIMILAR TO THAT OF THE HOUSE
MEMBERS.  SENATOR JOHNSON OF MARYLAND, ONE OF THE PRINCIPAL OPPONENTS
OF THE FOURTEENTH AMENDMENT, MADE THIS ARGUMENT: 

"NOW IT IS PROPOSED TO DENY THE RIGHT TO BE REPRESENTED OF A PART,
SIMPLY BECAUSE THEY ARE NOT PERMITTED TO EXERCISE THE RIGHT OF VOTING. 
YOU DO NOT PUT THEM UPON THE FOOTING OF ALIENS, UPON THE FOOTING OF
REBELS, UPON THE FOOTING OF MINORS, UPON THE FOOTING OF THE FEMALES,
UPON THE FOOTING OF THOSE WHO MAY HAVE COMMITTED CRIMES OF THE MOST
HEINOUS CHARACTER.  MURDERERS, ROBBERS, HOUSEBURNERS, COUNTERFEITERS OF
THE PUBLIC SECURITIES OF THE UNITED STATES, ALL WHO MAY HAVE COMMITTED
ANY CRIME, AT ANY TIME, AGAINST THE LAWS OF THE UNITED STATES OR THE
LAWS OF A PARTICULAR STATE, ARE TO BE INCLUDED WITHIN THE BASIS; BUT
THE POOR BLACK MAN, UNLESS HE IS PERMITTED TO VOTE, IS NOT TO BE
REPRESENTED, AND IS TO HAVE NO INTEREST IN THE GOVERNMENT."  ID., AT
3029.     SENATOR HENDERSON OF MISSOURI, SPEAKING IN FAVOR OF THE
VERSION OF 2 WHICH HAD BEEN REPORTED BY THE JOINT COMMITTEE IN APRIL,
AS OPPOSED TO THE EARLIER PROVISION OF THE PROPOSAL WHICH HAD BEEN
DEFEATED IN THE SENATE, SAID THIS: 

"THE STATES UNDER THE FORMER PROPOSITION (THE CORRESPONDING
PROVISION OF THE ORIGINAL AMENDMENT REPORTED BY THE COMMITTEE OF
FIFTEEN, WHICH PASSED THE HOUSE OF REPRESENTATIVES BUT WAS DEFEATED IN
THE SENATE) MIGHT HAVE EXCLUDED THE NEGROES UNDER AN EDUCATIONAL TEST
AND YET RETAINED THEIR POWER IN CONGRESS.  UNDER THIS THEY CANNOT.  FOR
ALL PRACTICAL PURPOSES, UNDER THE FORMER PROPOSITION LOSS OF
REPRESENTATION FOLLOWED THE DISFRANCHISEMENT OF THE NEGRO ONLY; UNDER
THIS IT FOLLOWS THE DISFRANCHISEMENT OF WHITE AND BLACK, UNLESS
EXCLUDED ON ACCOUNT OF 'REBELLION OR OTHER CRIME.'"  ID., AT 3033. 

FURTHER LIGHT IS SHED ON THE UNDERSTANDING OF THOSE WHO FRAMED AND
RATIFIED THE FOURTEENTH AMENDMENT, AND THUS ON THE MEANING OF 2, BY THE
FACT THAT AT THE TIME OF THE ADOPTION OF THE AMENDMENT, 29 STATES HAD
PROVISIONS IN THEIR CONSTITUTIONS WHICH PROHIBITED, OR AUTHORIZED THE
LEGISLATURE TO PROHIBIT, EXERCISE OF THE FRANCHISE BY PERSONS CONVICTED
OF FELONIES OR INFAMOUS CRIMES.  /14/ 

MORE IMPRESSIVE THAN THE MERE EXISTENCE OF THE STATE CONSTITUTIONAL
PROVISIONS DISENFRANCHISING FELONS AT THE TIME OF THE ADOPTION OF THE
FOURTEENTH AMENDMENT IS THE CONGRESSIONAL TREATMENT OF STATES
READMITTED TO THE UNION FOLLOWING THE CIVIL WAR.  FOR EVERY STATE THUS
READMITTED, AFFIRMATIVE CONGRESSIONAL ACTION IN THE FORM OF AN ENABLING
ACT WAS TAKEN, AND AS A PART OF THE READMISSION PROCESS THE STATE
SEEKING READMISSION WAS REQUIRED TO SUBMIT FOR THE APPROVAL OF THE
CONGRESS ITS PROPOSED STATE CONSTITUTION.  IN MARCH OF 1867, BEFORE ANY
STATE WAS READMITTED, CONGRESS PASSED "AN ACT TO PROVIDE FOR THE MORE
EFFICIENT GOVERNMENT OF THE REBEL STATES," THE SO-CALLED RECONSTRUCTION
ACT.  ACT OF MAR. 2, 1867, C. 153, 14 STAT. 428.  SECTION 5 OF THE
RECONSTRUCTION ACT ESTABLISHED CONDITIONS ON WHICH THE FORMER
CONFEDERATE STATES WOULD BE READMITTED TO REPRESENTATION IN CONGRESS. 
IT PROVIDED: 

"THAT WHEN THE PEOPLE OF ANY ONE OF SAID REBEL STATES SHALL HAVE
FORMED A CONSTITUTION OF GOVERNMENT IN CONFORMITY WITH THE CONSTITUTION
OF THE UNITED STATES IN ALL RESPECTS, FRAMED BY A CONVENTION OF
DELEGATES ELECTED BY THE MALE CITIZENS OF SAID STATE, TWENTY-ONE YEARS
OLD AND UPWARD, OF WHATEVER RACE, COLOR, OR PREVIOUS CONDITION, WHO
HAVE BEEN RESIDENT IN SAID STATE FOR ONE YEAR PREVIOUS TO THE DAY OF
SUCH ELECTION, EXCEPT SUCH AS MAY BE DISFRANCHISED FOR PARTICIPATION IN
THE REBELLION OR FOR FELONY AT COMMON LAW, AND WHEN SUCH CONSTITUTION
SHALL PROVIDE THAT THE ELECTIVE FRANCHISE SHALL BE ENJOYED BY ALL SUCH
PERSONS AS HAVE THE QUALIFICATIONS HEREIN STATED FOR ELECTORS OF
DELEGATES, AND WHEN SUCH CONSTITUTION SHALL BE RATIFIED BY A MAJORITY
OF THE PERSONS VOTING ON THE QUESTION OF RATIFICATION WHO ARE QUALIFIED
AS ELECTORS FOR DELEGATES, AND WHEN SUCH CONSTITUTION SHALL HAVE BEEN
SUBMITTED TO CONGRESS FOR EXAMINATION AND APPROVAL, AND CONGRESS SHALL
HAVE APPROVED THE SAME, AND WHEN SAID STATE, BY A VOTE OF ITS
LEGISLATURE ELECTED UNDER SAID CONSTITUTION, SHALL HAVE ADOPTED THE
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, PROPOSED BY THE
THIRTY-NINTH CONGRESS, AND KNOWN AS ARTICLE FOURTEEN, AND WHEN SAID
ARTICLE SHALL HAVE BECOME A PART OF THE CONSTITUTION OF THE UNITED
STATES, SAID STATE SHALL BE DECLARED ENTITLED TO REPRESENTATION IN
CONGRESS, AND SENATORS AND REPRESENTATIVES SHALL BE ADMITTED THEREFROM
ON THEIR TAKING THE OATH PRESCRIBED BY LAW, AND THEN AND THEREAFTER THE
PRECEDING SECTIONS OF THIS ACT SHALL BE INOPERATIVE IN SAID STATE . .
."  (EMPHASIS SUPPLIED.)  SECTION 5 WAS INTRODUCED AS A SENATE
AMENDMENT TO THE HOUSE BILL, WHICH WAS CONCERNED ONLY WITH THE
ESTABLISHMENT OF MILITARY GOVERNMENT IN THE FORMER CONFEDERATE STATES. 
CONG. GLOBE, 39TH CONG., 2D SESS., 1360 - 1361 (1867).  THE LEGISLATIVE
HISTORY OF THE RECONSTRUCTION ACT WAS RECOUNTED BY SENATOR HENDERSON OF
MISSOURI, WHO ULTIMATELY VOTED FOR IT: 

     "AS THE BILL ORIGINALLY CAME FROM THE HOUSE IT WAS A BALD AND

  NAKED PROPOSITION TO ESTABLISH WITHOUT LIMITATION OF POWER OR THE

  TIME OF ITS DURATION A PURELY MILITARY GOVERNMENT FOR THE TEN

  STATES NOW UNREPRESENTED.  THIS, IN MY JUDGMENT, WAS A MOST

  DANGEROUS EXPERIMENT.  . . . 

     "THE SENATE, BEING UNWILLING TO EMBARK ON THE EXPERIMENT OF

  PURE MILITARY RULE, MODIFIED THE HOUSE BILL BE ADOPTING WHAT IS

  KNOWN AS THE BLAINE OR SHERMAN AMENDMENT.  THIS AMENDMENT

  CONCEDED MILITARY RULE, AS ASKED BY THE HOUSE, BUT PUT SOME SORT

  OF LIMIT TO ITS DURATION.  IT PROVIDED THAT WHEN THE REBEL STATES

  SHOULD ADOPT UNIVERSAL SUFFRAGE, REGARDLESS OF COLOR OR RACE,

EXCLUDING NONE, WHITE OR BLACK, EXCEPT FOR TREASON OR SUCH CRIMES

  AS WERE FELONY AT THE COMMON LAW, THE REGULATION OF EXCLUSION TO

  BE LEFT TO THE STATES THEMSELVES, AND SHOULD ADOPT THE

  CONSTITUTIONAL AMENDMENT PROPOSED AT THE LAST SESSION OF CONGRESS

  . . . AND SO SOON AS A SUFFICIENT NUMBER OF SAID STATES SHOULD

  ADOPT IT TO MAKE IT A PART OF THE CONSTITUTION OF THE UNITED

  STATES, THEN MILITARY LAW SHOULD CEASE AND THE STATES SHOULD BE

  ADMITTED, PROVIDED THAT CONGRESS EVEN THEN SHOULD SEE FIT TO

  RECEIVE THEM."  ID., AT 1641. 

A SERIES OF ENABLING ACTS IN 1868 AND 1870 ADMITTED THOSE STATES TO
REPRESENTATION IN CONGRESS.  THE ACT ADMITTING ARKANSAS, THE FIRST
STATE TO BE SO ADMITTED, ATTACHED A CONDITION TO ITS ADMISSION.  ACT OF
JUNE 22, 1868, C. 69, 15 STAT. 72.  THAT ACT PROVIDED: 

     "WHEREAS THE PEOPLE OF ARKANSAS, IN PURSUANCE OF THE
PROVISIONS

  OF AN ACT ENTITLED 'AN ACT FOR THE MORE EFFICIENT GOVERNMENT OF

THE REBEL STATES,' PASSED MARCH SECOND, EIGHTEEN HUNDRED AND

  SIXTY-SEVEN, AND THE ACT SUPPLEMENTARY THERETO, HAVE FRAMED AND

  ADOPTED A CONSTITUTION OF STATE GOVERNMENT, WHICH IS REPUBLICAN,

  AND THE LEGISLATURE OF SAID STATE HAS DULY RATIFIED THE AMENDMENT

  TO THE CONSTITUTION OF THE UNITED STATES PROPOSED BY THE

  THIRTY-NINTH CONGRESS, AND KNOWN AS ARTICLE FOURTEEN:

  THEREFORE, 

     "BE IT ENACTED . . . THAT THE STATE OF ARKANSAS IS ENTITLED
AND

ADMITTED TO REPRESENTATION IN CONGRESS AS ONE OF THE STATES OF

  THE UNION UPON THE FOLLOWING FUNDAMENTAL CONDITION:  THAT THE

  CONSTITUTION OF ARKANSAS SHALL NEVER BE SO AMENDED OR CHANGED AS

  TO DEPRIVE ANY CITIZEN OR CLASS OF CITIZENS OF THE UNITED STATES

  OF THE RIGHT TO VOTE WHO ARE ENTITLED TO VOTE BY THE CONSTITUTION

  HEREIN RECOGNIZED, EXCEPT AS A PUNISHMENT FOR SUCH CRIMES AS ARE

  NOW FELONIES AT COMMON LAW, WHEREOF THEY SHALL HAVE BEEN DULY

  CONVICTED, UNDER LAWS EQUALLY APPLICABLE TO ALL THE INHABITANTS

OF SAID STATE:  PROVIDED, THAT ANY ALTERATION OF SAID

  CONSTITUTION PROSPECTIVE IN ITS EFFECT MAY BE MADE IN REGARD TO

  THE TIME AND PLACE OF RESIDENCE OF VOTERS." 

THE PHRASE "UNDER LAWS EQUALLY APPLICABLE TO ALL THE INHABITANTS OF
SAID STATE" WAS INTRODUCED AS AN AMENDMENT TO THE HOUSE BILL BY SENATOR
DRAKE OF MISSOURI.  CONG. GLOBE, 40TH CONG., 2D SESS., 2600 (1868). 
SENATOR DRAKE'S EXPLANATION OF HIS REASON FOR INTRODUCING HIS AMENDMENT
IS ILLUMINATING.  HE EXPRESSED CONCERN THAT WITHOUT THAT RESTRICTION,
ARKANSAS MIGHT MISUSE THE EXCEPTION FOR FELONS TO DISENFRANCHISE
NEGROES: 

     "THERE IS STILL ANOTHER OBJECTION TO THE CONDITION AS
EXPRESSED

  IN THE BILL, AND THAT IS IN THE EXCEPTION AS TO THE PUNISHMENT

FOR CRIME.  THE BILL AUTHORIZES MEN TO BE DEPRIVED OF THE RIGHT

  TO VOTE 'AS A PUNISHMENT FOR SUCH CRIMES AS ARE NOW FELONIES AT

  COMMON LAW, WHEREOF THEY SHALL HAVE BEEN DULY CONVICTED.'  THERE

  IS ONE FUNDAMENTAL DEFECT IN THAT, AND THAT IS THAT THERE IS NO

  REQUIREMENT THAT THE LAWS UNDER WHICH MEN SHALL BE DULY CONVICTED

  OF THESE CRIMES SHALL BE EQUALLY APPLICABLE TO ALL THE

  INHABITANTS OF THE STATE.  IT IS A VERY EASY THING IN A STATE TO

  MAKE ONE SET OF LAWS APPLICABLE TO WHITE MEN, AND ANOTHER SET OF

  LAWS APPLICABLE TO COLORED MEN."  IBID. 

THE SAME "FUNDAMENTAL CONDITION" AS WAS IMPOSED BY THE ACT
READMITTING ARKANSAS WAS ALSO, WITH ONLY SLIGHT VARIATIONS IN LANGUAGE,
IMPOSED BY THE ACT READMITTING NORTH CAROLINA, SOUTH CAROLINA,
LOUISIANA, GEORGIA, ALABAMA, AND FLORIDA, ENACTED THREE DAYS LATER. 
ACT OF JUNE 25, 1868, C. 70, 15 STAT. 73.  THAT CONDITION WAS AGAIN
IMPOSED BY THE ACTS READMITTING VIRGINIA, MISSISSIPPI, TEXAS, AND
GEORGIA EARLY IN 1870.  ACT OF JAN. 26, 1870, C. 10, 16.  STAT.  62;
ACT OF FEB. 1, 1870, C. 12, 16 STAT. 63; ACT OF FEB. 23, 1870, C. 19,
16 STAT. 67; ACT OF MAR. 30, 1870, C. 39, 16 STAT. 80; ACT OF JULY 15,
1870, C. 299, 16 STAT. 363. 

THIS CONVINCING EVIDENCE OF THE HISTORICAL UNDERSTANDING OF THE
FOURTEENTH AMENDMENT IS CONFIRMED BY THE DECISIONS OF THIS COURT WHICH
HAVE DISCUSSED THE CONSTITUTIONALITY OF PROVISIONS DISENFRANCHISING
FELONS.  ALTHOUGH THE COURT HAS NEVER GIVEN PLENARY CONSIDERATION TO
THE PRECISE QUESTION OF WHETHER A STATE MAY CONSTITUTIONALLY EXCLUDE
SOME OR ALL CONVICTED FELONS FROM THE FRANCHISE, WE HAVE INDICATED
APPROVAL OF SUCH EXCLUSIONS ON A NUMBER OF OCCASIONS.  IN TWO CASES
DECIDED TOWARD THE END OF THE LAST CENTURY, THE COURT APPROVED
EXCLUSIONS OF BIGAMISTS AND POLYGAMISTS FROM THE FRANCHISE UNDER
TERRITORIAL LAWS OF UTAH AND IDAHO.  MURPHY V. RAMSEY, 114 U.S. 15
(1885); DAVIS V. BEASON, 133 U.S. 333 (1890).  MUCH MORE RECENTLY WE
HAVE STRONGLY SUGGESTED IN DICTA THAT EXCLUSION OF CONVICTED FELONS
FROM THE FRANCHISE VIOLATES NO CONSTITUTIONAL PROVISION.  IN LASSITER
V. NORTHAMPTON COUNTY BOARD OF ELECTIONS, 360 U.S. 45 (1959), WHERE WE
UPHELD NORTH CAROLINA'S IMPOSITION OF A LITERACY REQUIREMENT FOR
VOTING, THE COURT SAID, ID., AT 51:

"RESIDENCE REQUIREMENTS, AGE, PREVIOUS CRIMINAL RECORD (DAVIS V.
BEASON, 133 U.S. 333, 345 - 347) ARE OBVIOUS EXAMPLES INDICATING
FACTORS WHICH A STATE MAY TAKE INTO CONSIDERATION IN DETERMINING THE
QUALIFICATIONS OF VOTERS."  STILL MORE RECENTLY, WE HAVE SUMMARILY
AFFIRMED TWO DECISIONS OF THREE-JUDGE DISTRICT COURTS REJECTING
CONSTITUTIONAL CHALLENGES TO STATE LAWS DISENFRANCHISING CONVICTED
FELONS.  FINCHER V. SCOTT, 352 F.SUPP.  117 (MDNC 1972), AFF'D, 411
U.S. 961 (1973); BEACHAM V. BRATERMAN, 300 F.SUPP.  182 (SO FLA.),
AFF'D, 396 U.S. 12 (1969).  BOTH DISTRICT COURTS RELIED ON GREEN V.
BOARD OF ELECTIONS, 380 F.2D 445 (1967), CERT. DENIED, 389 U.S. 1048
(1968), WHERE THE COURT OF APPEALS FOR THE SECOND CIRCUIT HELD THAT A
CHALLENGE TO NEW YORK'S EXCLUSION OF CONVICTED FELONS FROM THE VOTE DID
NOT REQUIRE THE CONVENING OF A THREE-JUDGE DISTRICT COURT. 

DESPITE THIS SETTLED HISTORICAL AND JUDICAL UNDERSTANDING OF THE
FOURTEENTH AMENDMENT'S EFFECT ON STATE LAWS DISENFRANCHISING CONVICTED
FELONS, RESPONDENTS ARGUE THAT OUR RECENT DECISIONS INVALIDATING OTHER
STATE-IMPOSED RESTRICTIONS ON THE FRANCHISE AS VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE REQUIRE US TO INVALIDATE THE DISENFRANCHISEMENT OF
FELONS AS WELL.  THEY RELY ON SUCH CASES AS DUNN V. BLUMSTEIN, 405 U.S.
330 (1972), BULLOCK V. CARTER, 405 U.S. 134 (1972), KRAMER V. UNION
FREE SCHOOL DISTRICT, 395 U.S. 621 (1969), AND CIPRIANO V. CITY OF
HOUMA, 395 U.S. 701 (1969), TO SUPPORT THE CONCLUSIONS OF THE SUPREME
COURT OF CALIFORNIA THAT A STATE MUST SHOW A "COMPELLING STATE
INTEREST" TO JUSTIFY EXCLUSION OF EX-FELONS FROM THE FRANCHISE AND THAT
CALIFORNIA HAS NOT DONE SO HERE. 

AS WE HAVE SEEN, HOWEVER, THE EXCLUSION OF FELONS FROM THE VOTE HAS
AN AFFIRMATIVE SANCTION IN 2 OF THE FOURTEENTH AMENDMENT, A SANCTION
WHICH WAS NOT PRESENT IN THE CASE OF THE OTHER RESTRICTIONS ON THE
FRANCHISE WHICH WERE INVALIDATED IN THE CASES ON WHICH RESPONDENTS
RELY.  WE HOLD THAT THE UNDERSTANDING OF THOSE WHO ADOPTED THE
HISTORICAL AND JUDICIAL INTERPRETATION OF THE AMENDMENT'S APPLICABILITY
TO STATE LAWS DISENFRANCHISING FELONS, IS OF CONTROLLING SIGNIFICANCE
IN DISTINGUISHING SUCH LAWS FROM THOSE OTHER STATE LIMITATIONS ON THE
FRANCHISE WHICH HAVE BEEN HELD INVALID UNDER THE EQUAL PROTECTION
CLAUSE BY THIS COURT.  WE DO NOT THINK THAT THE COURT'S REFUSAL TO
ACCEPT MR. JUSTICE HARLAN'S POSITION IN HIS DISSENTS IN REYNOLDS V.
SIMS, 377 U.S. 533, 589 (1964), AND CARRINGTON V. RASH, 380 U.S. 89, 97
(1965), THAT 2 IS THE ONLY PART OF THE AMENDMENT DEALING WITH VOTING
RIGHTS, DICTATES AN OPPOSITE RESULT.  WE NEED NOT GO NEALY SO FAR AS
MR. JUSTICE HARLAN WOULD TO REACH OUR CONCLUSION, FOR WE MAY REST ON
THE DEMONSTRABLY SOUND PROPOSITION THAT 1, IN DEALING WITH VOTING
RIGHTS AS IT DOES, COULD NOT HAVE BEEN MEANT TO BAR OUTRIGHT A FORM OF
DISENFRANCHISEMENT WHICH WAS EXPRESSLY EXEMPTED FROM THE LESS DRASTIC
SANCTION OF REDUCED REPRESENTATION WHICH 2 IMPOSED FOR OTHER FORMS OF
DISENFRANCHISEMENT.  NOR CAN WE ACCEPT RESPONDENTS' ARGUMENT THAT
BECAUSE 2 WAS MADE PART OF THE AMENDMENT "'LARGELY THROUGH THE ACCIDENT
OF POLITICAL EXIGENCY RATHER THAN THROUGH THE RELATION WHICH IT BORE TO
THE OTHER SECTIONS OF THE AMENDMENT,'" WE MUST NOT LOOK AT IT FOR
GUIDANCE IN INTERPRETING 1.  IT IS AS MUCH A PART OF THE AMENDMENT AS
ANY OF THE OTHER SECTIONS, AND HOW IT BECAME A PART OF THE AMENDMENT IS
LESS IMPORTANT THAN WHAT IT SAYS AND WHAT IT MEANS. 

PRESSED UPON US BY THE RESPONDENTS, AND BY AMICI CURIAE, ARE
CONTENTIONS THAT THESE NOTIONS ARE OUTMODED, AND THAT THE MORE MODERN
VIEW IS THAT IT IS ESSENTIAL TO THE PROCESS OF REHABILITATING THE EX
FELON THAT HE BE RETURNED TO HIS ROLE IN SOCIETY AS A FULLY
PARTICIPATING CITIZEN WHEN HE HAS COMPLETED THE SERVING OF HIS TERM. 
WE WOULD BE NO MEANS DISCOUNT THESE ARGUMENTS IF ADDRESSED TO THE
LEGISLATIVE FORUM WHICH MAY PROPERLY WEIGH AND BALANCE THEM AGAINST
THOSE ADVANCED IN SUPPORT OF CALIFORNIA'S PRESENT CONSTITUTIONAL
PROVISIONS.  BUT IT IS NOT FOR US TO CHOOSE ONE SET OF VALUES OVER THE
OTHER.  IF RESPONDENTS ARE CORRECT, AND THE VIEW WHICH THEY ADVOCATE IS
INDEED THE MORE ENLIGHTENED AND SENSIBLE ONE, PRESUMABLY THE PEOPLE OF
THE STATE OF CALIFORNIA WILL ULTIMATELY COME AROUND TO THAT VIEW.  AND
IF THEY DO NOT DO SO, THEIR FAILURE IS SOME EVIDENCE, AT LEAST, OF THE
FACT THAT THERE ARE TWO SIDES TO THE ARGUMENT.     WE THEREFORE HOLD
THAT THE SUPREME COURT OF CALIFORNIA ERRED IN CONCLUDING THAT
CALIFORNIA MAY NO LONGER, CONSISTENT WITH THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT, EXCLUDE FROM THE FRANCHISE CONVICTED
FELONS WHO HAVE COMPLETED THEIR SENTENCES AND PAROLES.  THE CALIFORNIA
COURT DID NOT REACH RESPONDENTS' ALTERNATIVE CONTENTION THAT THERE WAS
SUCH A TOTAL LACK OF UNIFORMITY IN COUNTY ELECTION OFFICIALS'
ENFORCEMENT OF THE CHALLENGED STATE LAWS AS TO WORK A SEPARATE DENIAL
OF EQUAL PROTECTION, AND WE BELIEVE THAT IT SHOULD HAVE AN OPPORTUNITY
TO CONSIDER THE CLAIM BEFORE WE ADDRESS OURSELVES TO IT.  ACCORDINGLY,
WE REVERSE AND REMAND FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED 

/1/  THE PETITION FOR A WRIT OF MANDATE IN THE SUPREME COURT OF
CALIFORNIA ALSO NAMED THE CALIFORNIA SECRETARY OF STATE AS A RESPONDENT
IN HIS CAPACITY OF CHIEF ELECTIONS OFFICER OF THE STATE OF CALIFORNIA. 
HE DID NOT JOIN THE PETITION FOR A WRIT OF CERTIORARI TO THIS COURT,
AND HAS FILED A BRIEF AS A PARTY RESPONDENT.  RESPONDENTS HERE
(PETITIONERS BELOW) ALSO INCLUDE, IN ADDITION TO THE THREE INDIVIDUAL
RESPONDENTS, THE LEAGUE OF WOMEN VOTERS AND THREE NONPROFIT
ORGANIZATIONS WHICH SUPPORT THE INTERESTS OF EX-CONVICTS--LOS PINTOS,
7TH STEP FOUNDATIONS, INC. (CALIFORNIA AFFILIATES), AND PRISONERS'
UNION. 

/2/  PROPOSITION 7, PASSED AT THE NOVEMBER 7, 1972, GENERAL
ELECTION, REPEALED FORMER ART. II, 1, OF THE CALIFORNIA CONSTITUTION
AND ADDED NEW ART. II, 3: 

"THE LEGISLATURE SHALL PROHIBIT IMPROPER PRACTICES THAT AFFECT
ELECTIONS AND SHALL PROVIDE THAT NO SEVERLY MENTALLY DEFICIENT PERSON,
INSANE PERSON, PERSON CONVICTED OF AN INFAMOUS CRIME, NOR PERSON
CONVICTED OF EMBEZZLEMENT OR MISAPPROPRIATION OF PUBLIC MONEY, SHALL
EXERCISE THE PRIVILEGES OF AN ELECTOR IN THIS STATE." 

THE SUPREME COURT OF CALIFORNIA CONCLUDED THAT THE NEW
CONSTITUTIONAL PROVISION WAS NO DIFFERENT IN SUBSTANCE FROM THE FORMER
ONE, AND THAT IT DID NOT IMPLICITLY REPEAL THE IMPLEMENTING SECTIONS OF
THE CALIFORNIA ELECTIONS CODE CHALLENGED HERE. 

/3/  SECTION 310 OF THE CALIFORNIA ELECTIONS CODE PROVIDES IN
RELEVANT PART THAT "(THE AFFIDAVIT OF REGISTRATION SHALL SHOW: 

"(H) THAT THE AFFIANT IS NOT DISQUALIFIED TO VOTE BY REASON OF A
FELONY CONVICTION." 

INCLUDES THE FOLLOWING:  "10.  I AM NOT DISQUALIFIED TO VOTE BY REASON
OF A FELONY CONVICTION." 

/4/  SECTION 383 OF THE CALIFORNIA ELECTIONS CODE PROVIDES: 

"THE COUNTY CLERK CANCEL THE REGISTRATION IN THE FOLLOWING CASES: 

"(C) UPON THE PRODUCTION OF A CERTIFIED COPY OF A SUBSISTING
JUDGMENT OF THE CONVICTION OF THE PERSON REGISTERED OF ANY INFAMOUS
CRIME OR OF THE EMBEZZLEMENT OR MISAPPROPRIATION OF ANY PUBLIC MONEY. 
. . ." 


"THE COUNTY CLERK SHALL, IN THE FIRST WEEK OF SEPTEMBER IN EACH
YEAR, EXAMINE THE RECORDS OF THE COURTS HAVING JURISDICTION IN CASE OF
INFAMOUS CRIMES AND THE EMBEZZLEMENT OR MISAPPROPRIATION OF PUBLIC
MONEY, AND SHALL CANCEL THE AFFIDAVITS OF REGISTRATION OF ALL VOTERS
WHO HAVE BEEN FINALLY CONVICTED OF AN INFAMOUS CRIME OR OF THE
EMBEZZLEMENT OR MISAPPROPRIATION OF PUBLIC MONEY.  . . ." 


"THE COUNTY CLERK, ON THE BASIS OF THE RECORDS OF COURTS IN THE
COUNTY HAVING JURISDICTION OF SUCH OFFENSES, SHALL FURNISH TO THE
REGISTRAR OF VOTERS IN A COUNTY WHERE THERE IS A REGISTRAR OF VOTERS,
BEFORE THE FIRST DAY OF SEPTEMBER OF EACH YEAR, A STATEMENT SHOWING THE
NAMES OF ALL PERSONS CONVICTED OF INFAMOUS CRIMES OR OF THE
EMBEZZLEMENT OR MISAPPROPRIATION OF PUBLIC MONEY DURING THE YEAR PRIOR
TO THAT FIRST DAY OF SEPTEMBER, WHOSE CONVICTIONS HAVE BECOME FINAL. 
THE REGISTRAR OF VOTERS SHALL, DURING THE FIRST WEEK OF SEPTEMBER IN
EACH YEAR, CANCEL THE AFFIDAVITS OF REGISTRATION OF SUCH PERSONS.  THE
COUNTY CLERK SHALL CERTIFY THE STATEMENT UNDER THE SEAL OF HIS OFFICE. 
. . ." 

/5/  SECTION 14240 OF THE CALIFORNIA ELECTIONS CODE (SUPP. 1974)
PROVIDES: 

"A PERSON OFFERING TO VOTE MAY BE ORALLY CHALLENGED WITHIN THE
POLLING PLACE ONLY BY A MEMBER OF THE PRECINCT BOARD UPON ANY OR ALL OF
THE FOLLOWING GROUNDS:

        .          .          .          . 

"(G) THAT HE HAD BEEN CONVICTED OF A FELONY. 

        .          .          .          . 

"ON THE DAY OF THE ELECTION NO PERSON, OTHER THAN A MEMBER OF A
PRECINCT BOARD OR OTHER OFFICIAL RESPONSIBLE FOR THE CONDUCT OF THE
ELECTION, SHALL CHALLENGE ANY VOTER OR QUESTION HIM CONCERNING HIS
QUALIFICATIONS TO VOTE.  . . ." 


"IF THE CHALLENGE IS ON THE GROUND THAT THE PERSON CHALLENGED HAS
BEEN CONVICTED OF A FELONY OR THAT HE HAS BEEN CONVICTED OF THE
EMBEZZLEMENT OR MISAPPROPRIATION OF PUBLIC MONEY, HE SHALL NOT BE
QUESTIONED, BUT THE FACT MAY BE PROVED BY THE PRODUCTION OF AN
AUTHENTICATED COPY OF THE RECORD OR BY THE SWORN ORAL TESTIMONY OF TWO
WITNESSES." 

/6/  SECTION 1203.4 OF THE CALIFORNIA PENAL CODE (SUPP. 1974)
PROVIDES: 

"(A) IN ANY CASE IN WHICH A DEFENDANT HAS FULFILLED THE CONDITIONS
OF PROBATION FOR THE ENTIRE PERIOD OF PROBATION, OR HAS BEEN DISCHARGED
PRIOR TO THE TERMINATION OF THE PERIOD OF PROBATION, OR IN ANY OTHER
CASE IN WHICH A COURT, IN ITS DISCRETION AND THE INTERESTS OF JUSTICE,
DETERMINES THAT A DEFENDANT SHOULD BE GRANTED THE RELIEF AVAILABLE
UNDER THIS SECTION, THE DEFENDANT SHALL, AT ANY TIME AFTER THE
TERMINATION OF THE PERIOD OF PROBATION, IF HE IS NOT THEN SERVING A
SENTENCE FOR ANY OFFENSE, ON PROBATION FOR ANY OFFENSE, OR CHARGED WITH
THE COMMISSION OF ANY OFFENSE, BE PERMITTED BY THE COURT TO WITHDRAW
HIS PLEA OF GUILTY OR PLEA OF NOLO CONTENDERE AND ENTER A PLEA OF NOT
GUILTY; OR, IF HE HAS BEEN CONVICTED AFTER A PLEA OF NOT GUILTY, THE
COURT SHALL SET ASIDE THE VERDICT OF GUILTY; AND, IN EITHER CASE, THE
COURT SHALL THEREUPON DISMISS THE ACCUSATIONS OR INFORMATION AGAINST
THE DEFENDANT AND HE SHALL THEREAFTER BE RELEASED FROM ALL PENALTIES
AND DISABILITIES RESULTING FROM THE OFFENSE OF WHICH HE HAS BEEN
CONVICTED.  THE PROBATIONER SHALL BE INFORMED OF THIS RIGHT AND
PRIVILEGE IN HIS PROBATION PAPERS.  . . ." 

/7/  SECTION 4852.01 OF THE CALIFORNIA PENAL CODE (1970) PROVIDES
THAT A PERSON CONVICTED OF A FELONY WHO WAS INCARCERATED MAY FILE, ANY
TIME AFTER HIS RELEASE FROM CUSTODY, A NOTICE OF INTENTION TO APPLY FOR
A CERTIFICATE OF REHABILITATION AND PARDON.  IT FURTHER PROVIDES,
HOWEVER: 

"THIS CHAPTER SHALL NOT APPLY TO PERSONS CONVICTED OF MISDEMEANORS;
TO PERSONS WHO HAVE SERVED TIME IN COUNTY JAILS ONLY; TO PERSONS
SERVING A MANDATORY LIFE PAROLE; TO PERSONS COMMITTED UNDER DEATH
SENTENCES; OR TO PERSONS IN THE MILITARY SERVICE." 


"IF, AFTER HEARING, THE COURT FINDS THAT THE PETITIONER HAS
DEMONSTRATED BY HIS COURSE OF CONDUCT HIS REHABILITATION AND HIS
FITNESS TO EXERCISE ALL OF THE CIVIL AND POLITICAL RIGHTS OF
CITIZENSHIP, THE COURT SHALL MAKE AN ORDER DECLARING THAT THE
PETITIONER HAS BEEN REHABILITATED, AND RECOMMENDING THAT THE GOVERNOR
GRANT A FULL PARDON TO THE PETITIONER.  SUCH ORDER SHALL BE FILED WITH
THE CLERK OF THE COURT, AND SHALL BE KNOWN AS A CERTIFICATE OF
REHABILITATION.  THE CERTIFICATE SHALL SHOW THE DATE ON WHICH THE
ORIGINAL NOTICE OF INTENTION TO APPLY FOR A CERTIFICATE WAS FILED." 


"THE CERTIFIED COPY OF A CERTIFICATE OF REHABILITATION TRANSMITTED
TO THE GOVERNOR SHALL CONSTITUTE AN APPLICATION FOR A FULL PARDON UPON
RECEIPT OF WHICH THE GOVERNOR MAY, WITHOUT ANY FURTHER INVESTIGATION,
ISSUE A PARDON TO THE PERSON NAMED THEREIN, EXCEPT THAT, PURSUANT TO
GRANT A PARDON TO ANY PERSON TWICE CONVICTED OF FELONY, EXCEPT UPON THE
WRITTEN RECOMMENDATION OF A MAJORITY OF THE JUDGES OF THE SUPREME
COURT." 


"WHENEVER A PERSON IS GRANTED A FULL AND UNCONDITIONAL PARDON BY THE
GOVERNOR, BASED UPON A CERTIFICATE OF REHABILITATION, THE PARDON SHALL
ENTITLE THE PERSON TO EXERCISE THEREAFTER ALL CIVIL AND POLITICAL
RIGHTS OF CITIZENSHIP, INCLUDING BUT NOT LIMITED TO:  (1) THE RIGHT TO
VOTE.  . . ." 

/8/  SECTION 350 OF THE CALIFORNIA ELECTIONS CODE (1961) PROVIDES: 

"IF THE COUNTY CLERK REFUSES TO REGISTER ANY QUALIFIED ELECTOR IN
THE COUNTY, THE ELECTOR MAY PROCEED BY ACTION IN THE SUPERIOR COURT TO
COMPEL HIS REGISTRATION.  IN AN ACTION UNDER THIS SECTION, AS MANY
PERSONS MAY JOIN AS PLAINTIFFS AS HAVE CAUSES OF ACTION." 

RESPONDENTS CONTENDED THAT PARDON WAS NOT AN EFFECTIVE DEVICE FOR
OBTAINING THE FRANCHISE, NOTING THAT DURING 1968 - 1971, 34,626 PERSONS
WERE RELEASED FROM STATE PRISONS BUT ONLY 282 PARDONS WERE GRANTED. 

/9/  RESPONDENT RAMIREZ WAS CONVICTED IN TEXAS OF THE FELONY OF
"ROBBERY BY ASSAULT" IN 1952.  HE SERVED THREE MONTHS IN JAIL AND
SUCCESSFULLY TERMINATED HIS PAROLE IN 1962.  IN FEBRUARY 1972 THE SAN
LUIS OBISPO COUNTY CLERK REFUSED TO ALLOW RAMIREZ TO REGISTER TO VOTE
ON THE GROUND THAT HE HAD BEEN CONVICTED OF A FELONY AND SPENT TIME IN
INCARCERATION.  RESPONDENT LEE WAS CONVICTED OF THE FELONY OF HEROIN
POSSESSION IN CALIFORNIA IN 1955, SERVED TWO YEARS IN PRISON, AND
SUCCESSFULLY TERMINATED HIS PAROLE IN 1959.  IN MARCH 1972 THE MONTEREY
COUNTY CLERK REFUSED TO ALLOW LEE TO REGISTER TO VOTE ON THE SOLE
GROUND THAT HE HAD BEEN CONVICTED OF A FELONY AND HAD NOT BEEN PARDONED
BY THE GOVERNOR.  RESPONDENT GILL WAS CONVICTED IN 1952 AND 1967 OF
SECOND-DEGREE BURGLARY IN CALIFORNIA, AND IN 1957 OF FORGERY.  HE
SERVED SOME TIME IN PRISON ON EACH CONVICTION, FOLLOWED BY A SUCCESSFUL
PAROLE.  IN APRIL 1972 THE STANISLAUS COUNTY REGISTRAR OF VOTERS
REFUSED TO ALLOW GILL TO REGISTER TO VOTE ON THE SOLE GROUND OF HIS
PRIOR FELONY CONVICTIONS. 

/10/  PARAGRAPH VI OF RESPONDENTS' PETITION FOR MANDAMUS STATES THAT
THE NAMED "PETITIONERS BRING THIS ACTION INDIVIDUALLY AND ON BEHALF OF
ALL OTHER PERSONS WHO ARE INELIGIBLE TO REGISTER TO VOTE IN CALIFORNIA
SOLELY BY REASON OF A CONVICTION OF A FELONY OTHER THAN AN ELECTION
CODE FELONY."  THE REMAINDER OF THE PETITION MAKES IT CLEAR THAT THE
CLASS WAS FURTHER RESTRICTED TO EX-FELONS, AND THE SUPREME COURT OF
CALIFORNIA SO TREATED IT. 

/11/  UE REFER TO THE NAMED "DEFENDANTS" IN THE ACTION IN THE
SUPREME COURT OF CALIFORNIA, EVEN THOUGH IN THAT COURT THEY WERE
ACTUALLY DENOMINATED RESPONDENTS ACCORDING TO CALIFORNIA PRACTICE, AND
WE REFER TO NAMED "PLAINTIFFS" IN THAT COURT, EVEN THOUGH THEY WERE
ACTUALLY THERE DENOMINATED AS PETITIONERS.  WE DO THIS FOR CONVENIENCE
OF REFERENCE, IN ORDER TO AVOID AS MUCH AS POSSIBLE CONFUSION BETWEEN
REFERENCE TO THE POSITION OF THE PARTIES IN THE SUPREME COURT OF
CALIFORNIA AND THEIR POSITION HERE. 

/12/  THE PARTIES AGREE THAT THE LACK OF UNIFORMITY IS THE RESULT OF
DIFFERING INTERPRETATIONS OF THE 1966 SUPREME COURT OF CALIFORNIA
DECISION IN OTSUKA V. HITE, 64 CAL.2D 596, 414 P.2D 412, WHICH DEFINED
"INFAMOUS CRIME" AS USED IN THE CALIFORNIA CONSTITUTIONAL PROVISIONS. 

THE CALIFORNIA SECRETARY OF STATE'S REPORT NOTED THAT "(MOST" OF THE
49 RESPONDING COUNTIES "HAVE ATTEMPTED TO DEVELOP CONSISTENT CRITERIA
FOR DETERMINING WHICH EX-FELONS SHALL BE ENTITLED TO REGISTER.  IN SOME
COUNTIES THESE POLICIES HAVE BEEN FORMALIZED IN WRITING, BUT IN MOST
INSTANCES A CASE-BY-CASE METHOD HAS BEEN USED."  THE REPORT CONCLUDED: 

"2.  ALTHOUGH THE POLICY WITHIN MOST COUNTIES MAY BE CONSISTENT, THE
FACT THAT SOME COUNTIES HAVE ADOPTED DIFFERENT POLICIES HAS CREATED A
SITUATION IN WHICH THERE IS A LACK OF UNIFORMITY ACROSS THE STATE.  IT
APPEARS FROM THE SURVEY THAT A PERSON CONVICTED OF ALMOST ANY GIVEN
FELONY WOULD FIND THAT HE IS ELIGIBLE TO VOTE IN SOME CALIFORNIA
COUNTIES AND INELIGIBLE TO VOTE IN OTHERS. 

"3.  IN ORDER TO REMEDY THIS LACK OF UNIFORMITY, AUTHORITATIVE
GUIDELINES FROM EITHER THE LEGISLATURE OR THE COURTS ARE URGENTLY
NEEDED." 

/13/  OUR BROTHER MARSHALL AGRUES IN DISSENT THAT SINCE THE SUPREME
COURT OF CALIFORNIA DID NOT ISSUE THE PEREMPTORY WRIT OF MANDATE, ITS
OPINION IN THIS CASE IS AN ADVISORY ONE WHICH DOES NOT COME WITHIN THE
"CASE OR CONTROVERSY"  REQUIREMENT OF ART. III OF THE CONSTITUTION.  HE
ALSO CONTENDS THAT THAT COURT'S REFUSAL TO ISSUE THE PEREMPTORY WRIT
MUST REST ON SOME UNARTICULATED STATE GROUND, WHICH HE CONCLUDES SHOULD
BAR REVIEW OF THE FEDERAL CONSTITUTIONAL QUESTION BY THIS COURT. 

THE SUPREME COURT OF CALIFORNIA HAS ONLY RECENTLY NOTED ITS POLICY
OF AVOIDING ADVISORY OPINIONS ON ABSTRACT QUESTIONS OF LAW, IN RE
WILLIAM M., 3 CAL.3D 16, 473 P.2D 737 (1970), WHILE IN THE SAME OPINION
ADVERTING TO ITS "DECLARATORY USE OF HABEAS CORPUS IN A NUMBER OF
CASES" SUCH AS IN RE GONSALVES, 48 CAL.2D 638, 311 P.2D 483 (1957).  IN
SUPPORT OF ITS DETERMINATION IN THE CASE BEFORE US THAT EXERCISE OF ITS
ORIGINAL JURISDICTION WOULD BE APPROPRIATE, THE SUPREME COURT OF
CALIFORNIA CITED YOUNG V. GNOSS, 7 CAL.3D 18, 496 P.2D 445 (1972). 
THERE IT HAD EXERCISED ITS ORIGINAL MANDAMUS JURISDICTION TO CONCLUDE
THAT THE DURATIONAL RESIDENCE REQUIREMENTS FOR VOTING IMPOSED BY
CALIFORNIA LAW VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT. SAYING THAT ITS "FUNCTION AT THIS TIME IS SIMPLY TO DECLARE
THE MINIMUM THAT MUST BE DONE TO IMPLEMENT DUNN V. BLUMSTEIN(, 405 U.S.
330 (1972)," 7 CAL.3D,AT 27, 496 P.2D,AT 451, THE COURT REFUSED TO
ISSUE A PEREMPTORY WRIT OF MANDATE IN THAT CASE, JUST AS IT DID HERE,
SAYING THAT "(SINCE THERE IS NO REASON TO BELIEVE THAT ANY OF THE
PARTIES TO THIS PROCEEDING WILL NOT ACCEDE TO OUR HOLDING HEREIN, NO
PURPOSE WOULD BE SERVED BY ISSUING A WRIT OF MANDATE TO COMPEL SUCH
COMPLIANCE WITH RESPECT TO THE NOVEMBER 1972 GENERAL ELECTION.  . . ." 
ID., AT 29, 496 P.2D,AT 453.  UNITED STATES COURTS OF APPEALS, WHICH
ARE BARRED BY THE CASE-OR-CONTROVERSY REQUIREMENTS OF ART. III FROM
ISSUING ADVISORY OPINIONS, HAVE NONETHELESS DECLINED TO ISSUE
PEREMPTORY WRITS AGAINST DISTRICT JUDGES ON THE ASSUMPTION THAT THE
LATTER WOULD ABIDE BY THE OPINION OF THE COURT OF APPEALS WITHOUT THE
COMPULSION OF SUCH A WRIT.  IN RE UNITED STATES, 257 F.2D 844 (CA5
1958); IN RE UNITED STATES, 207 F.2D 567 (CA5 1953). 

WE THINK THAT THE RELIANCE OF THE SUPREME COURT OF CALIFORNIA ON ITS
EARLIER DECISION RECOGNIZING AND APPROVING THE USE OF ITS ORIGINAL
JURISDICTION TO GRANT DECLARATORY RELIEF, AS WELL AS ITS RELIANCE ON
PRECEDENT IN AN ORIGINAL MANDAMUS PROCEEDING IN WHICH IT REACHED THE
MERITS BUT DECLINED TO ISSUE THE PEREMPTORY WRIT WHERE THERE WAS NO
QUESTION OF MOOTNESS, SUPPORTS OUR CONCLUSION THAT THAT COURT'S
JUDGMENT IN THIS CASE IS FOR ALL PRACTICAL PURPOSES AT LEAST A
DECLARATORY JUDGMENT.  AND IT IS WELL SETTLED THAT, WHERE THERE IS "AN
ACTUAL AND ACUTE CONTROVERSY," AN APPEAL FROM A DECLARATORY JUDGMENT OF
A STATE COURT PRESENTS A "CASE OR CONTROVERSY" WITHIN THIS COURT'S
JURISDICTION.  NASHVILLE, C. & ST. L. R. CO. V. WALLACE, 288 U.S. 249
(1933).  INDEED, ANY OTHER CONCLUSION WOULD UNNECESSARILY PERMIT A
STATE COURT OF LAST RESORT, QUITE CONTRARY TO THE INTENTION OF CONGRESS
IN ENACTING 28 U.S.C. 1257, TO INVALIDATE STATE LEGISLATION ON FEDERAL
CONSTITUTIONAL GROUNDS WITHOUT ANY POSSIBILITY OF STATE OFFICIALS WHO
WERE ADVERSELY AFFECTED BY THE DECISION SEEKING REVIEW IN THIS COURT. 

WE ARE EQUALLY UNABLE TO ACCEPT THE VIEW OF THE DISSENTERS THAT THE
CALIFORNIA COURT'S FAILURE HERE TO ISSUE THE PEREMPTORY WRIT MUST REST
ON THAT COURT'S RESOLUTION OF SOME UNSPECIFIED STATE LAW QUESTION
AGAINST PETITIONER.  THE MERE FAILURE OF A STATE COURT TO AWARD
PEREMPTORY RELIEF IN A PROCEEDING WHICH IT TREATS AS ONE FOR A
DECLARATORY JUDGMENT IS NOT AN "ADEQUATE STATE GROUND"  WHICH PRECLUDES
OUR REVIEW OF ITS FEDERAL CONSTITUTIONAL HOLDING. 

/14/  VA. CONST., ART. 3, 14 (1830); KY. CONST., ART. 6, 4 (1799);
OHIO CONST., ART. 4, 4 (1802); LA. CONST., ART. 6, 4 (1812); IND.
CONST., ART. 6, 4 (1816); MISS.  CONST., ART. 6, 5 (1817); CONN.
CONST., ART. 6, 3 (1818); ILL. CONST., ART. 2, 30 (1818); ALA. CONST.,
ART. 6, 5 (1819); MO. CONST., ART. 3, 14 (1820); N.Y. CONST., ART. 2, 2
(1821); DEL. CONST., ART. 4, 1 (1831); TENN. CONST., ART. 4, 2 (1834);
FLA. CONST., ART. 6, 4 (1838); R.I. CONST., ART. 2, 4 (1842); N.J.
CONST., ART. 2, 1 (1844); TEX. CONST., ART. 7, 4 (1845); IOWA CONST.,
ART. 2, 5 (1846); WIS. CONST., ART 3, 2 (1848); CALIF. CONST., ART. 2,
5 (1849); MD. CONST., ART. 1, 5 (1851); MINN. CONST., ART. 7, 2 (1857);
ORE.  CONST., ART. 2, 3 (1857); KAN. CONST., ART. 5, 2 (1859); W.VA.
CONST., ART. 3, 1 (1863); NEV. CONST., ART. 2, 1 (1864); S.C. CONST.,
ART. 4 (1865); GA. CONST., ART. 2, 6 (1868); N.C. CONST., ART. 6, 5
(1868). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

THE COURT TODAY HOLDS THAT A STATE MAY STRIP EX-FELONS WHO HAVE
FULLY PAID THEIR DEBT TO SOCIETY OF THEIR FUNDAMENTAL RIGHT TO VOTE
WITHOUT RUNNING AFOUL OF THE FOURTEENTH AMENDMENT.  THIS RESULT IS , IN
MY VIEW, BASED ON AN UNSOUND HISTORICAL ANALYSIS WHICH ALREADY HAS BEEN
REJECTED BY THIS COURT.  IN STRAINING TO REACH THAT RESULT, I BELIEVE
THAT THE COURT HAS ALSO DISREGARDED IMPORTANT LIMITATIONS ON ITS
JURISDICTION.  FOR THESE REASONS, I RESPECTFULLY DISSENT. 

     I 

A BRIEF RETRACING OF THE PROCEDURAL HISTORY OF THIS CASE IS
NECESSARY TO A FULL UNDERSTANDING OF MY VIEWS.  EACH OF THE
RESPONDENTS, THE PLAINTIFFS BELOW, /1/  HAD BEEN CONVICTED OF A FELONY
UNRELATED TO VOTING AND HAD FULLY SERVED HIS TERM OF INCARCERATION AND
PAROLE.  EACH APPLIED TO REGISTER TO VOTE IN HIS RESPECTIVE COUNTY-
RAMIREZ IN SAN LUIS OBISPO COUNTY, LEE IN MONTEREY COUNTY, AND GILL IN
STANISLAUS COUNTY.  ALL THREE WERE REFUSED REGISTRATION BECAUSE, UNDER
APPLICABLE PROVISIONS OF THE CALIFORNIA CONSTITUTION, "NO PERSON
CONVICTED OF ANY INFAMOUS CRIME . . . SHALL EVER EXERCISE THE
PRIVILEGES OF AN ELECTOR."  /2/ 

THE THREE NAMED PLAINTIFFS FILED A PETITION FOR A WRIT OF MANDATE IN
THE CALIFORNIA SUPREME COURT, INVOKING ITS ORIGINAL JURISDICTION. 
PLAINTIFFS CHALLENGED THE STATE'S DISENFRANCHISEMENT OF EX-FELONS AS
BEING VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT AND SOUGHT ISSUANCE OF A PEREMPTORY WRIT OF MANDATE TO COMPEL
THEIR REGISTRATION.  THE COMPLAINT LABELED THE SUIT AS BROUGHT
"INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS WHO ARE INELIGIBLE TO
REGISTER TO VOTE IN CALIFORNIA SOLELY BY REASON OF A CONVICTION OF A
FELONY OTHER THAN AN ELECTION CODE FELONY" AND WHO HAD FULLY SERVED
THEIR TERMS OF INCARCERATION AND PAROLE.  THE COMPLAINT NAMED, AS
DEFENDANTS, THE ELECTION OFFICIALS WHO HAD REFUSED TO REGISTER THEM,
"INDIVIDUALLY AND AS REPRESENTATIVES OF THE CLASS OF ALL OTHER COUNTY
CLERKS AND REGISTRARS OF VOTERS WHO HAVE THE DUTY OF DETERMINING FOR
THEIR RESPECTIVE COUNTIES WHETHER ANY EX-FELON WILL BE DENIED THE RIGHT
TO VOTE." 

THE THREE NAMED ELECTION OFFICIALS DID NOT CONTEST THE ACTION AND
REPRESENTED TO THE STATE COURT THAT THEY WOULD PERMIT THE NAMED
PLAINTIFFS AND ALL SIMILARLY SITUATED EX-FELONS IN THEIR COUNTIES TO
REGISTER AND TO VOTE.  THE REPRESENTATIVE OF THE SECRETARY OF STATE OF
CALIFORNIA, ALSO NAMED AS A DEFENDANT, HAS SIMILARLY AGREED NOT TO
CONTEST THE SUIT.  /3/  AT THIS POINT IN THE LITIGATION ALL OF THE
NAMED PLAINTIFFS HAD BEEN VOLUNTARILY AFFORDED THE RELIEF THEY WERE
SEEKING BY THE ELECTION OFFICIALS IN THEIR RESPECTIVE COUNTIES. 

SUBSEQUENTLY, THE PETITIONER IN THIS COURT, VIOLA RICHARDSON, AS
COUNTY CLERK OF MENDOCINO COUNTY, FILED A MOTION TO INTERVENE IN THE
PROCEEDINGS BEFORE THE CALIFORNIA SUPREME COURT.  SHE INDICATED TO THE
COURT THAT SHE WAS BEING SUED IN A SEPARATE ACTION IN A LOWER STATE
COURT BY AN EX-FELON SEEKING TO REGISTER IN HER COUNTY AND THAT THE
DECISION IN THIS CASE WOULD BE DISPOSITIVE OF THE LEGAL ISSUE IN THAT
CONTROVERSY.  THE STATE SUPREME COURT ORDERED RICHARDSON ADDED AS A
NAMED DEFENDANT IN THE INSTANT ACTION, BUT DID NOT NAME THE EX-FELON
SUING HER AS A PLAINTIFF OR NAMED CLASS REPRESENTATIVE HEREIN. 

IN ITS OPINION, THE CALIFORNIA SUPREME COURT FOUND THE CASE NOT TO
BE MOOT AND TOOK THE OPPORTUNITY TO ADDRESS THE MERITS OF THE
FOURTEENTH AMENDMENT ISSUE.  IT INDICATED THAT, IN ITS VIEW, THE EX
FELON DISENFRANCHISEMENT PROVISION OF THE CALIFORNIA CONSTITUTION AND
ITS IMPLEMENTING STATUTES VIOLATED THE EQUAL PROTECTION CLAUSE.  THE
STATE COURT DID NOT, HOWEVER, AFFORD THE PLAINTIFFS THE RELIEF THEY
SOUGHT.  THE COURT DENIED THE PEREMPTORY WRIT OF MANDATE. 

ALTHOUGH THE CALIFORNIA SUPREME COURT DID NOT ISSUE A WRIT ORDERING
RICHARDSON TO REGISTER EITHER THE EX-FELON SUING HER OR ANY OTHER
POTENTIAL ELECTOR IN HER COUNTY, SHE SOUGHT REVIEW OF THE STATE COURT'S
DECISION BY WAY OF WRIT OF CERTIORARI IN THIS COURT.  THE ELECTION
OFFICIALS IN THE NAMED PLAINTIFFS' COUNTIES DID NOT SEEK REVIEW AND THE
SECRETARY OF STATE FILED A MEMORANDUM OPPOSING REVIEW BY THIS COURT. 

        A 

THERE ARE A NUMBER OF REASONS WHY I DO NOT BELIEVE THIS CASE IS
PROPERLY BEFORE US AT THIS TIME.  FIRST, I AM PERSUADED THAT THE
JUDGMENT OF THE CALIFORNIA SUPREME COURT RESTS ON AN ADEQUATE AND
INDEPENDENT STATE GROUND. 

     "THIS COURT FROM THE TIME OF ITS FOUNDATION HAS ADHERED TO THE

  PRINCIPLE THAT IT WILL NOT REVIEW JUDGMENTS OF STATE COURTS THAT

  REST ON ADEQUATE AND INDEPENDENT STATE GROUNDS.  . . . OUR ONLY

  POWER OVER STATE JUDGMENTS IS TO CORRECT THEM TO THE EXTENT THAT

  THEY INCORRECTLY ADJUDGE FEDERAL RIGHTS.  AND OUR POWER IS TO

  CORRECT WRONG JUDGMENTS, NOT TO REVISE OPINIONS.  WE ARE NOT

  PERMITTED TO RENDER AN ADVISORY OPINION, AND IF THE SAME JUDGMENT

WOULD BE RENDERED BY THE STATE COURT AFTER WE CORRECTED ITS VIEWS

  OF FEDERAL LAWS, OUR REVIEW COULD AMOUNT TO NOTHING MORE THAN AN

  ADVISORY OPINION."  HERB V. PITCAIRN, 324 U.S. 117, 125 - 126

  (1945). 

PLAINTIFFS SOUGHT, FROM THE CALIFORNIA SUPREME COURT, A WRIT OF
MANDATE COMPELLING THEIR REGISTRATION.  THE STATE COURT DENIED THAT
RELIEF.  THE ENTIRETY OF THE JUDGMENT OF THAT COURT IS AS FOLLOWS: 

     "THE ALTERNATIVE WRIT, HAVING SERVED ITS PURPOSE, IS

  DISCHARGED, AND THE PETITION FOR PEREMPTORY WRIT IS DENIED."  9

CAL.3D 199, 217, 507 P.2D 1345, 1357 (1973).  /4/

THE ACCOMPANYING OPINION INDICATES THAT THE CALIFORNIA COURT DID NOT
CONSIDER THE CASE BEFORE IT TO BE MOOT AND THAT, IN ITS VIEW, THE
PLAINTIFFS'  ASSERTION THAT THE DISENFRANCHISEMENT PROVISIONS WERE
UNCONSTITUTIONAL WAS WELL TAKEN.  SINCE THE COURT NONETHELESS DENIED
PLAINTIFFS THE RELIEF THEY SOUGHT, WE CAN ONLY CONCLUDE THAT IT DID SO
ON INDEPENDENT STATE LAW GROUNDS.  CF. BROCKINGTON V. RHODES, 396 U.S.
41, 44 (1969).  FOR EXAMPLE, A WRIT OF MANDATE BEING DISCRETIONARY, THE
STATE COURT MAY HAVE DECLINED ITS ISSUANCE SIMPLY BECAUSE THE NAMED
PLAINTIFFS HAD ALREADY BEEN REGISTERED AND MANDATE RELIEF SEEMED
UNNECESSARY.  /5/  THERE IS CERTAINLY NO INDICATION THAT THE DECISION
TO DENY THE WRIT WAS BASED ON THE STATE COURT'S VIEW ON ANY FEDERAL
QUESTION. 

THIS COURT CREATES AN INTERESTING ANOMALY BY PURPORTING TO REVERSE
THE JUDGMENT OF THE CALIFORNIA COURT.  SINCE THAT COURT DENIED A WRIT
OF MANDATE TO COMPEL THE REGISTRATION OF EX-FELONS, THE ONLY
DISPOSITION CONSISTENT WITH THIS COURT'S VIEW THAT THE CALIFORNIA
DISENFRANCHISEMENT PROVISIONS ARE CONSTITUTIONAL WOULD BE TO AFFIRM THE
JUDGMENT BELOW.  BY REVERSING, THE COURT APPARENTLY DIRECTS THE
ISSUANCE OF THE PEREMPTORY WRIT.  THIS ANOMALY DEMONSTRATES THAT THIS
IS A CLASSIC EXAMPLY OF A CASE WHERE "THE SAME JUDGMENT WOULD BE
RENDERED BY THE STATE COURT AFTER WE CORRECTED ITS VIEWS OF FEDERAL
LAWS," HERB V. PITCAIRN, SUPRA, AT 126; HENCE WE CAN BUT OFFER AN
ADVISORY OPINION HERE.  WHETHER WE AGREE OR DISAGREE WITH THE STATE
COURT'S VIEW OF THE CONSTITUTIONALITY OF THE CHALLENGED PROVISIONS, THE
JUDGMENT OF THE STATE COURT WILL NECESSARILY REMAIN TO DENY THE WRIT OF
MANDATE. 

THE COURT IS AWARE OF THIS PROBLEM AND PURPORTS TO RESOLVE IT BY
SPECULATING THAT THE CALIFORNIA COURT MAY HAVE AFFORDED PLAINTIFFS
DECLARATORY RELIEF.  SUCH SPECULATION IS TOTALLY UNFOUNDED.  NEITHER
THE OPINION NOR THE JUDGMENT OF THE COURT BELOW EVEN MENTIONS
DECLARATORY RELIEF.  THE PLAINTIFFS DID NOT SEEK A DECLARATORY
JUDGMENT.  THE CALIFORNIA CONSTITUTION ON ITS FACE APPEARS TO BAR THE
STATE SUPREME COURT FROM ISSUING A DECLARATORY JUDGMENT IN AN ORIGINAL
PROCEEDING SUCH AS THE ONE BEFORE US, SINCE IT LIMITS THAT COURT'S
ORIGINAL JURISDICTION TO "PROCEEDINGS FOR EXTRAORDINARY RELIEF IN THE
NATURE OF MANDAMUS, CERTIORARI, AND PROHIBITION."  CALIF. CONST., ART.
6, 10 (SUPP. 1974).  EXCLUSIVE JURISDICTION FOR SUITS SEEKING
DECLARATORY RELIEF IS VESTED, BY STATUTE, IN THE STATE SUPERIOR
COURTS.  /6/ 

THIS COURT'S BASIS FOR CONSTRUING THE JUDGMENT OF THE COURT BELOW AS
AFFORDING DECLARATORY RELIEF IS ITS ARGUMENT THAT BECAUSE THE
CALIFORNIA SUPREME COURT IS THE HIGHEST COURT OF THE STATE, ITS
OBSERVATIONS ON THE CONSTITUTIONALITY OF THE CHALLENGED
DISENFRANCHISEMENT PROVISIONS ARE APT TO BE HEEDED BY STATE OFFICIALS. 
IT IS TRUE THAT THE OPINION OF THE CALIFORNIA COURT DID INDICATE A VIEW
ON THE MERITS OF THE PLAINTIFFS' CONSTITUTIONAL CLAIM.  BUT THIS
COURT'S POWER "IS TO CORRECT WRONG JUDGMENTS, NOT TO REVISE OPINIONS." 
HERB V. PITCAIRN, SUPRA, AT 126.  ONE COULD ALWAYS ARGUE THAT WHERE A
STATE COURT HAD COMMENTED ON A MATTER OF FEDERAL LAW, STATE OFFICIALS
WOULD HEED THOSE COMMENTS.  TO SAY THAT SUCH COMMENTS ARE A
"DECLARATION OF FEDERAL LAW" REVIEWABLE BY THIS COURT IS A RATIONALE
THAT WOULD REACH EVERY CASE IN WHICH THE STATE COURT DECISION RESTS ON
ADEQUATE STATE GROUNDS, RENDERING THAT DOCTRINE A VIRTUAL NULLITY.  THE
COURT ALSO CITES TWO CASES FOR THE PROPOSITION THAT THE CALIFORNIA
SUPREME COURT CAN ISSUE A DECLARATORY JUDGMENT IN AN ORIGINAL
PROCEEDING.  BUT, ON CLOSER INSPECTION, THE CASES CITED BY THE COURT,
ANTE, AT 41 N. 13, MERELY DEMONSTRATE THAT CALIFORNIA COURTS, WHOSE
JURISDICTION IS NOT LIMITED BY ANY EQUIVALENT TO ART. III, ARE FREE TO
RENDER ADVISORY OPINIONS.  /7/  THERE IS LITTLE DOUBT THAT MANY PUBLIC
OFFICIALS WOULD HEED SUCH AN ADVISORY OPINION FROM THE CALIFORNIA
SUPREME COURT AND THEY WOULD ALSO HEED AN ADVISORY OPINION ISSUED BY
THIS COURT, BUT THAT DOES NOT FREE US FROM THE CONSTITUTIONAL
LIMITATIONS ON OUR JURISDICTION. 

BECAUSE I BELIEVE THAT THE JUDGMENT OF THE CALIFORNIA COURT WAS
BASED ON ADEQUATE AND INDEPENDENT STATE GROUNDS, I DO NOT THINK WE HAVE
JURISDICTION TO CONSIDER ANY OTHER ISSUES PRESENTED BY THIS CASE. 

        B 

ASSUMING, ARGUENDO, THAT THE CALIFORNIA SUPREME COURT DID GRANT A
DECLARATORY JUDGMENT, I STILL BELIEVE THAT WE ARE WITHOUT JURISDICTION
BECAUSE NO CASE OR CONTROVERSY IS PRESENTED.  THE COURT SEEMS WILLING
TO CONCEDE THAT THE CLAIMS OF THE NAMED PLAINTIFFS MAY WELL BE MOOT. 
ANTE, AT 36.  THE COURT, HOWEVER, PREMISES ITS JURISDICTION ON THE
ASSUMPTION THAT THERE IS A LIVE CONTROVERSY BETWEEN THE NAMED
PETITIONER IN THIS COURT AND THE UNNAMED PLAINTIFF CLASS MEMBERS IN HER
OWN COUNTY.  TO REACH THIS CONCLUSION, IT IS ESSENTIAL FOR THE COURT TO
CONCLUDE THAT THIS CASE IS, IN FACT, A CLASS ACTION AND THAT, IN THE
CIRCUMSTANCES OF THIS CASE, IT IS APPROPRIATE TO LOOK TO UNNAMED CLASS
MEMBERS TO DETERMINE WHETHER THERE IS A LIVE CONTROVERSY.     I AM
FORCED TO POINT OUT THAT ONE OF THE CRUCIAL PREMISES UPON WHICH THE
COURT BASES ITS ASSUMPTION OF JURISDICTION--THE EXISTENCE OF A CLASS
ACTION--IS HIGHLY SPECULATIVE.  I AM PERSUADED THAT THE CALIFORNIA
COURT NEVER TREATED THIS CASE AS A CLASS ACTION.  AS THE MAJORITY
NOTES, THE CASE WAS TITLED A CLASS ACTION BY ITS ORIGINATORS AND THE
SHOW-CAUSE ORDER MERELY TRACKED THE LANGUAGE OF THE COMPLAINT.  BUT THE
CALIFORNIA COURT WAS, OF COURSE, NOT BOUND BY THAT DESIGNATION.  IN THE
ENTIRETY OF ITS LENGTHY OPINION, THE CALIFORNIA COURT DOES NOT ONCE
REFER TO THIS SUIT AS A CLASS ACTION, TO RESPONDENTS AS CLASS
REPRESENTATIVES, TO THE EXISTENCE OF UNNAMED PARTIES OR TO ANY OTHER
INDICIA OF CLASS-ACTION STATUS.  RATHER, THE STATE COURT DESCRIBES THE
CASE AS SIMPLY "A PROCEEDING FOR WRIT OF MANDATE BROUGHT BY THREE EX
FELONS TO COMPEL RESPONDENT ELECTION OFFICIALS TO REGISTER THEM AS
VOTERS."  9 CAL.3D,AT 201, 507 P.2D,AT 1346.  THE OPINIONS PROCEEDS TO
LIST THE THREE PLAINTIFFS AND, IN A FOOTNOTE, TO EXPLAIN THAT THE ONLY
OTHER PLAINTIFFS WERE THE LEAGUE OF WOMEN VOTERS AND THREE NONPROFIT
ORGANIZATIONS WHICH SUPPORT THE INTERESTS OF EX-FELONS.  THE OPINION
DESCRIBES THE DEFENDANTS AS THE ELECTION OFFICIALS OF SAN LUIS OBISPO,
MONTEREY, AND STANISLAUS COUNTIES AND THE SECRETARY OF STATE "IN HIS
CAPACITY (AS) CHIEF ELECTIONS OFFICER OF CALIFORNIA,"  AND NOTES THAT
"(UPON APPLICATION WE ORDERED THE MENDOCINO COUNTY CLERK (THE
PETITIONER HERE) JOINED AS AN ADDITIONAL PARTY (DEFENDANT)."  ID., AT
202 N. 1, 507 P.2D,AT 1346 N. 1.  THIS DESCRIPTION OF THE PARTIES
PLAINLY INDICATES THAT THIS SUIT WAS NOT TREATED AS A CLASS ACTION BY
THE STATE COURT.  I THINK IT HIGHLY INAPPROPRIATE THAT ON THE BASIS OF
NOTHING BUT SPECULATION, THIS CASE BE FASHIONED INTO A CLASS ACTION,
FOR THE FIRST TIME, IN THIS COURT. 

        C 

EVEN ASSUMING THAT THIS CASE IS A CLASS ACTION, I STILL WOULD NOT
AGREE THAT IT IS PROPERLY BEFORE US.  I DO NOT BELIEVE THAT WE CAN LOOK
BEYOND THE NAMED CLASS MEMBERS TO FIND A CASE OR CONTROVERSY IN THE
CIRCUMSTANCES OF THIS CASE.  THE COURT SEEMS TO HOLD THAT REVIEW IS NOT
FORECLOSED BY THE POSSIBLE MOOTNESS OF THE NAMED PLAINTIFFS'  CLAIM
BECAUSE, BUT FOR THE CALIFORNIA SUPREME COURT'S DECISION, UNNAMED CLASS
MEMBERS WOULD STILL BE SUBJECT TO THE CHALLENGED DISENFRANCHISEMENT,
HENCE THE CASE PRESENTS, AS TO UNNAMED CLASS MEMBERS, AS ISSUE CAPABLE
OF REPETITION, YET EVADING REVIEW.  I DISAGREE. 

AS THE COURT PROPERLY NOTES, A GENERAL RULE OF JUSTICIABILITY IS
THAT ONE MAY NOT REPRESENT A CLASS OF WHICH HE IS NOT A PART.  THUS, AS
A GENERAL PROPOSITION, A FEDERAL COURT WILL NOT LOOK TO UNNAMED CLASS
MEMBERS TO ESTABLISH THE CASE-OR-CONTROVERSY REQUIREMENT OF ART. III. 
/8/  BUT, THE "EVADING REVIEW" DOCTRINE OF SOUTHERN PACIFIC TERMINAL
CO. V. ICC, 219 U.S. 498, 515 (1911), AS RECENTLY APPLIED IN DUNN V.
BLUMSTEIN, 405 U.S. 330, 333 N. 2 (1972), PROVIDES A LIMITED EXCEPTION
TO THE GENERAL RULE--AN EXCEPTION NECESSARY TO INSURE THAT JUDICIAL
REVIEW IS NOT FORECLOSED IN CASES WHERE INTERVENING EVENTS THREATEN
INVARIABLY TO MOOT THE NAMED PLAINTIFF'S CLAIM FOR RELIEF. 

THE NECESSITY FOR LOOKING BEYOND THE NAMED CLASS MEMBERS IN THIS
LIMITED CATEGORY OF CASES IS EVIDENCED BY OUR DECISION IN DUNN V.
BLUMSTEIN, SUPRA, IN WHICH THE COURT STRUCK DOWN A DURATIONAL RESIDENCE
REQUIREMENT FOR VOTING.  THE SUIT HAD BEEN BROUGHT TO COMPEL THE
REGISTRATION OF THE NAMED PLAINTIFF AND THE MEMBERS OF THE CLASS HE
REPRESENTED IN ORDER THAT THEY MIGHT PARTICIPATE IN AN ELECTION
SCHEDULED FOR AUGUST 6, 1970.  THE FEDERAL DISTRICT COURT DID NOT ORDER
PRELIMINARY RELIEF IN TIME FOR THE AUGUST ELECTION AND, BY THE TIME THE
DISTRICT COURT DECIDED THE CASE, THE NEXT ELECTION WAS SCHEDULED FOR
NOVEMBER OF 1970.  BY THEN, THE NAMED PLAINTIFF WOULD HAVE MET THE
CHALLENGED THREE-MONTH REQUIREMENT.  THE DISTRICT COURT, NONETHELESS,
REJECTED THE STATE'S ARGUMENT THAT THE CONTROVERSY OVER THE VALIDITY OF
THE THREE-MONTH REQUIREMENT WAS THEREFORE MOOT. 

BY THE TIME THE APPEAL REACHED THIS COURT, THE ONLY NAMED PLAINTIFF
HAD ALSO SATISFIED THE ONE-YEAR STATE RESIDENCE REQUIREMENT.  WE
NONETHELESS REACHED THE MERITS, OBSERVING THAT "(ALTHOUGH APPELLEE (THE
ONLY NAMED PLAINTIFF) NOW CAN VOTE, THE PROBLEM TO VOTERS POSED BY THE
TENNESSEE RESIDENCE REQUIREMENTS IS '"CAPABLE OF REPRETITION, YET
EVADING REVIEW."'  MOORE V. OGILVIE, 394 U.S. 814, 816 (1969)."  405
U.S.,AT 333 N. 2.  BOTH THIS COURT AND THE DISTRICT COURT FOUND THAT,
ALTHOUGH THE NAMED PLAINTIFF HAD SATISFIED THE CHALLENGED RESIDENCE
REQUIREMENTS AND WOULD NO LONGER BE DISENFRANCHISED THEREBY, THE CASE
WAS NOT MOOT.  THE CHALLENGED REQUIREMENTS REMAINED APPLICABLE TO
UNNAMED CLASS MEMBERS, /9/  AND THE ISSUE PRESENTED WAS LIKELY TO EVADE
REVIEW.  OBVIOUSLY THE MERE PASSAGE OF A FEW MONTHS WOULD INVARIABLY
HAVE RENDERED A CHALLENGE TO THE RESIDENCE REQUIREMENTS BY INDIVIDUAL
NAMED PLAINTIFFS MOOT--THREATENING VIRTUALLY TO FORECLOSE JUDICIAL
REVIEW. 

A SIMILAR SITUATION WAS PRESENTED IN ROE V. WADE, 410 U.S. 113
(1973), RELIED ON BY THE CALIFORNIA COURT.  WE THERE HELD THAT ALTHOUGH
A WOMAN WHO WAS NOT PREGNANT AT THE TIME THE SUIT WAS FILED DID NOT
HAVE STANDING TO CHALLENGE THE CONSTITUTIONALITY OF THE TEXAS ABORTION
LAWS, A CONTINUING CONTROVERSY OVER THE CONSTITUTIONALITY OF THOSE LAWS
EXISTED AS TO A NAMED PLAINTIFF WHO WAS PREGNANT WHEN THE SUIT WAS
FILED, EVEN THOUGH SHE MAY NOT HAVE BEEN PREGNANT AT LATER STAGES OF
THE APPEAL.  WE CONCLUDED THAT THIS CASE PROVIDED A CLASSIC EXAMPLE OF
AN ISSUE CAPABLE OF REPETITION, YET EVADING REVIEW, HENCE THE
TERMINATION OF THE PLAINTIFF'S PREGNANCY WHILE THE CASE WAS ON APPEAL
DID NOT RENDER THE CASE MOOT--EVEN THOUGH A WOMAN WHOSE PREGNANCY HAS
ENDED IS NO MORE AFFECTED BY THE ABORTION LAWS THAN ONE WHO WAS NOT
PREGNANT AT THE TIME THE SUIT WAS FILED.  "(THE . . . HUMAN GESTATION
PERIOD IS SO SHORT THAT . . . PREGNANCY WILL COME TO TERM BEFORE THE
USUAL APPELLATE PROCESS IS COMPLETE.  IF THAT TERMINATION MAKES A CASE
MOOT, . . . APPELLATE REVIEW WILL BE EFFECTIVELY DENIED."  ID., AT
125. 

THERE ARE TWO COMMON THREADS RUNNING THROUGH THESE CASES--IN EACH
THE CHALLENGED STATUTE WOULD CONTINUE TO BE APPLIED, BUT THE NAMED
PLAINTIFF'S CLAIM WOULD INEVITABLY MATURE INTO MOOTNESS PENDING
RESOLUTION OF THE LAWSUIT.  IN ROE, THE TERMINATION OF PREGNANCY, IN
DUNN, THE PASSAGE OF THE RESIDENCE REQUIREMENT PERIOD, AND IN OTHER
VOTING CASES, THE OCCURRENCE OF AN ELECTION, /10/  DEPRIVED THE NAMED
PLAINTIFF OF A CONTINUING CONTROVERSY OVER THE APPLICATION OF THE
CHALLENGED STATUTE.  IN EACH INSTANCE, THE MERE PASSAGE OF TIME
THREATENED TO INSULATE A CONSTITUTIONAL DEPRIVATION FROM JUDICIAL
REVIEW, AND IT IS THAT DANGER WHICH SERVED AS THE RATIONALE FOR
REJECTING SUGGESTIONS OF MOOTNESS.  WHERE AN INVALID STATUTE WOULD THUS
CONTINUE TO BE APPLIED SIMPLY BECAUSE JUDICIAL REVIEW OF A LIVE
CONTROVERSY INVOLVING THE NAMED PLAINTIFF WAS INVARIABLY FORECLOSED-
THE ISSUE WOULD BE CAPABLE OF REPETITION YET EVADING REVIEW. 

ACCORDINGLY, THE SOUTHERN PACIFIC DOCTRINE REQUIRES THE SATISFACTION
OF TWO TESTS IN ORDER TO PROVIDE AN ANSWER TO A SUGGESTION OF
MOOTNESS.  FIRST, THE CLAIMED DEPRIVATION MUST, IN FACT, BE "CAPABLE OF
REPETITION."  THIS ELEMENT IS SATISFIED WHERE, EVEN THOUGH THE NAMED
PLAINTIFF'S IMMEDIATE CONTROVERSY HAS BEEN MOOTED BY INTERVENING
EVENTS, EITHER HE OR UNNAMED CLASS MEMBERS MAY CONTINUE TO SUFFER THE
ALLEGED CONSTITUTIONAL DEPRIVATION IN THE FUTURE.  THE CASE BEFORE US
CLEARLY SATIFIES THIS FIRST ELEMENT OF THE SOUTHERN PACIFIC DOCTRINE
TEST.  SINCE THE CALIFORNIA COURT DECLINED TO ORDER ANY COUNTY CLERK TO
REGISTER EX-FELONS, PRESUMABLY THE CHALLENGED DISENFRANCHISEMENT
PROVISIONS COULD CONTINUE TO BE APPLIED TO UNNAMED CLASS MEMBERS IN
COUNTIES OTHER THAN THOSE IN WHICH THE NAMED PLAINTIFFS RESIDE.  /11/ 

SECOND, THE ISSUE PRESENTED MUST BE LIKELY TO EVADE REVIEW, BUT FOR
INVOCATION OF THE SOUTHERN PACIFIC DOCTRINE.  IT IS ON THE "EVADING
REVIEW"  ELEMENT THAT THE COURT'S ANALYSIS FAILS.  BECAUSE THE CLAIM
RAISED IN THIS CASE CONCERNS NOT A TIME-RELATED BUT RATHER A STATUS
BASED DEPRIVATION, THERE IS NO ISSUE EVADING REVIEW AND NO REASON TO
LOOK BEYOND THE NAMED PLAINTIFFS.  /12/  THIS IS NOT A SITUATION WHERE,
BY THE TIME A CASE REACHES THIS COURT, IT WILL ALWAYS BE TOO LATE TO
GRANT THE NAMED PLAINTIFF RELIEF.  IF AND WHEN AN EX-FELON IS REFUSED
ACCESS TO THE VOTING ROLLS BECAUSE OF HIS PAST CRIMINAL RECORD, AN
INTERVENING ELECTION WILL NOT MOOT HIS CLAIM FOR RELIEF AND THE STATUS
GIVING RISE TO HIS DISENFRANCHISEMENT WILL NOT INEVITABLY TERMINATE
PENDING REVIEW. 

THERE ARE CLEARLY WAYS IN WHICH A CHALLENGE TO THE CALIFORNIA
DISENFRANCHISEMENT PROVISIONS COULD REACH THIS COURT.  THE CALIFORNIA
SUPREME COURT HAS NOT ISSUED A WRIT OF MANDATE COMPELLING THE
REGISTRATION OF ANY EX-FELONS.  /13/ IF SUCH A POTENTIAL VOTER IS, IN
FACT, REFUSED REGISTRATION, A CONTROVERSY SUITABLE FOR RESOLUTION BY
THIS COURT WILL BE PRESENTED.  THE SUIT BROUGHT AGAINST PETITIONER
RICHARDSON, BY AN EX-FELON RESIDENT OF HER OWN COUNTY, RAISING THE SAME
ISSUES AS THOSE PRESENTED BY THIS CASE, IS PRESENTLY PENDING IN A
CALIFORNIA INTERMEDIATE APPELLATE COURT.  /14/  IN THAT CASE,
PETITIONER RICHARDSON DID, IN FACT, DENY THE PLAINTIFF REGISTRATION
BECAUSE HE WAS AN EX-FELON.  ONCE THAT CASE COMPLETES ITS PASSAGE
THROUGH THE STATE COURTS, IT COULD WELL SERVE AS A VEHICLE FOR OUR
REVIEW OF THE CALIFORNIA DISENFRANCHISEMENT PROVISIONS.  THAT IS, OF
COURSE, BUT ONE EXAMPLE OF HOW THE ISSUE PRESENTED HERE COULD PROPERLY
REACH THIS COURT.  THIS CASE DOES NOT THEREFORE BENEFIT FROM THE
SOUTHERN PACIFIC DOCTRINE'S AUTHORITY TO LOOK TO UNNAMED CLASS MEMBERS
TO ESTABLISH A CASE OR CONTROVERSY. 

THAT THE CALIFORNIA SUPREME COURT APPEARS TO HAVE FOUND THE
PLAINTIFFS' CLAIMS NOT TO BE MOOT DOES NOT DETRACT FROM THIS CONCLUSION
SINCE "(EVEN IN CASES ARISING IN THE STATE COURTS, THE QUESTION OF
MOOTNESS IS A FEDERAL ONE WHICH A FEDERAL COURT MUST RESOLVE BEFORE IT
ASSUMES JURISDICTION."  NORTH CAROLINA V. RICE, 404 U.S. 244, 246
(1971).  THUS, UNLIKE THE COURT, I AM PERSUADED THAT WE CAN LOOK ONLY
TO THE NAMED PLAINTIFFS TO SATISFY THE CASE-OR-CONTROVERSY REQUIREMENT
OF ART. III. 

  D 

THE NAMED PLAINTIFFS HERE WERE REGISTERED ONLY BECAUSE THE CLERKS IN
THEIR COUNTIES HAD VOLUNTARILY ABANDONED AN ALLEGEDLY ILLEGAL PRACTICE
OF DISENFRANCHISING EX-FELONS, AND WE HAVE SAID THAT "(MERE VOLUNTARY
CESSATION OF ALLEGEDLY ILLEGAL CONDUCT DOES NOT MOOT A CASE; IF IT DID,
THE COURTS WOULD BE COMPELLED TO LEAVE '(THE DEFENDANT . . . FREE TO
RETURN TO HIS OLD WAYS.'  . . . (BUT A) CASE MIGHT BECOME MOOT IF
SUBSEQUENT EVENTS MADE IT ABSOLUTELY CLEAR THAT THE ALLEGEDLY WRONGFUL
BEHAVIOR COULD NOT REASONABLY BE EXPECTED TO RECUR."  UNITED STATES V.
CONCENTRATED PHOSPHATE EXPORT ASSN., 393 U.S. 199, 203 (1968); ACCORD,
UNITED STATES V. W. T. GRANT CO., 345 U.S. 629, 632 (1953). 
ACCORDINGLY, WHETHER THE NAMED PLAINTIFFS HAVE A LIVE CONTROVERSY WITH
THE CLERKS IN THEIR OWN COUNTIES WOULD DEPEND ON THE LIKELIHOOD OF
FUTURE DISENFRANCHISEMENT.  /15/  BUT WE NEED NOT CONSIDER THAT
QUESTION HERE BECAUSE NONE OF HTE ELECTION OFFICIALS IN THE NAMED
PLAINTIFFS' COUNTIES SOUGHT REVIEW IN THIS COURT AND NONE IS NOW BEFORE
US. 

THE SOLE PETITIONER BEFORE THIS COURT IS VIOLA RICHARDSON.  NONE OF
THE NAMED PLAINTIFFS ARE RESIDENTS OF HER COUNTY.  WHILE THOSE NAMED
PLAINTIFFS MAY OR MAY NOT HAVE A LIVE CONTROVERSY WITH THE CLERKS IN
THEIR OWN COUNTIES, THEY SURELY DO NOT HAVE ONE WITH PETITIONER
RICHARDSON.  WHILE RICHARDSON MAY WELL HAVE A LIVE CONTROVERSY WITH EX
FELONS IN HER OWN COUNTY OVER THE VALIDITY OF THE DISENFRANCHISEMENT
LAWS, THOSE EX-FELONS ARE NOT BEFORE THIS COURT, AND SHE HAS NO DISPUTE
WITH THE NAMED PLAINTIFFS.  IN SUM, THERE IS NO CONTROVERSY BETWEEN THE
PARTIES BEFORE THIS COURT.  PETITIONER RICHARDSON SEEKS TO USE THE
NAMED PLAINTIFFS'  CONTROVERSY WITH THEIR OWN COUNTY CLERKS AS A
VEHICLE FOR THIS COURT TO ISSUE AN ADVISORY OPINION ON THE ISSUE
PRESENTED BY THE SUIT BROUGHT AGAINST HER BY AN EX-FELON IN HER OWN
COUNTY.  SUCH A DECISION WOULD VIOLATE THE "'OLDEST AND MOST CONSISTENT
THREAD IN THE FEDERAL LAW OF JUSTICIABILITY . . . THAT THE FEDERAL
COURTS WILL GIVE ADVISORY OPINIONS.'"  FLAST V. COHEN, 392 U.S. 83, 96
(1968). 

        II 

SINCE THE COURT NEVERTHELESS REACHES THE MERITS OF THE
CONSTITUTIONALITY OF CALIFORNIA'S DISENFRANCHISEMENT OF EX-FELONS, I
FIND IT NECESSARY TO REGISTER MY DISSENT ON THE MERITS AS WELL.  THE
COURT CONSTRUES 2 OF THE FOURTEENTH AMENDMENT AS AN EXPRESS
AUTHORIZATION FOR THE STATES TO DISENFRANCHISE FORMER FELONS.  SECTION
2 DOES EXCEPT DISENFRANCHISEMENT FOR "PARTICIPATION IN REBELLION, OR
OTHER CRIME"  FROM THE OPERATION OF ITS PENALTY PROVISION.  AS THE
COURT NOTES, HOWEVER, THERE IS LITTLE INDEPENDENT LEGISLATIVE HISTORY
AS TO THE CRUCIAL WORDS "OR OTHER CRIME"; THE PROPOSED 2 WENT TO A
JOINT COMMITTEE CONTAINING ONLY THE PHRASE "PARTICIPATION IN REBELLION"
AND EMERGED WITH "OR OTHER CRIME" INEXPLICABLY TACKED ON.  /16/  IN ITS
EXHAUSTIVE REVIEW OF THE LENGTHY LEGISLATIVE HISTORY OF THE FOURTEENTH
AMENDMENT, THE COURT HAS COME UPON ONLY ONE EXPLANATORY REFERENCE FOR
THE "OTHER CRIMES" PROVISION--A REFERENCE WHICH IS UNILLUMINATING AT
BEST.  /17/ 

THE HISTORICAL PURPOSE FOR 2 ITSELF IS, HOWEVER, RELATIVELY CLEAR
AND, IN MY VIEW, DISPOSITIVE OF THIS CASE.  THE REPUBLICANS WHO
CONTROLLED THE 39TH CONGRESS WERE CONCERNED THAT THE ADDITIONAL
CONGRESSIONAL REPRESENTATION OF THE SOUTHERN STATES WHICH WOULD RESULT
FROM THE ABOLITION OF SLAVERY MIGHT WEAKEN THEIR OWN POLITICAL
DOMINANCE.  /18/  THERE WERE TWO ALTERNATIVES AVAILABLE--EITHER TO
LIMIT SOUTHERN REPRESENTATION, WHICH WAS UNACCEPTABLE ON A LONG-TERM
BASIS, /19/  OR TO INSURE THAT SOUTHERN NEGROES, SYMPATHETIC TO THE
REPUBLICAN CAUSE, WOULD BE ENFRANCHISED; BUT AN EXPLICIT GRANT OF
SUFFRAGE TO NEGROES WAS THOUGHT POLITICALLY UNPALATABLE AT THE TIME. 
/20/  SECTION 2 OF THE FOURTEENTH AMENDMENT WAS THE RESULTANT
COMPROMISE.  IT PUT SOUTHERN STATES TO A CHOICE--ENFRANCHISE NEGRO
VOTERS OR LOSE CONGRESSIONAL REPRESENTATION.  /21/     THE POLITICAL
MOTIVATION BEHIND 2 WAS A LIMITED ONE.  IT HAD A LITTLE TO DO WITH THE
PURPOSE OF THE REST OF THE FOURTEENTH AMENDMENT.  AS ONE NOTED
COMMENTATOR EXPLAINED: 

"'IT BECAME A PART OF THE FOURTEENTH AMENDMENT LARGELY THROUGH THE
ACCIDENT OF POLITICAL EXIGENCY RATHER THAN THROUGH THE RELATION WHICH
IT BORE TO THE OTHER SECTIONS OF THE AMENDMENT.'"  /22/  "(IT SEEMS
QUITE IMPOSSIBLE TO CONCLUDE THAT THERE WAS A CLEAR AND DELIBERATE
UNDERSTANDING IN THE HOUSE THAT 2 WAS THE SOLE SOURCE OF NATIONAL
AUTHORITY TO PROTECT VOTING RIGHTS, OR THAT IT EXPRESSLY RECOGNIZED THE
STATES' POWER TO DENY OR ABRIDGE THE RIGHT TO VOTE."  /23/ 

IT IS CLEAR THAT 2 WAS NOT INTENDED AND SHOULD NOT BE CONSTRUED TO
BE A LIMITATION ON THE OTHER SECTIONS OF THE FOURTEENTH AMENDMENT. 
PARTICULAR FORM OF ELECTORAL ABUSE--THE DISENFRANCHISEMENT OF NEGROES. 
THERE IS NO INDICATION THAT THE FRAMERS OF THE PROVISIONS INTENDED THAT
SPECIAL PENALTY TO BE THE EXCLUSIVE REMEDY FOR ALL FORMS OF ELECTORAL
DISCRIMINATION.  THIS COURT HAS REPEATEDLY REJECTED THAT RATIONALE. 
SEE, REYNOLDS V. SIMS, 377 U.S. 533 (1964); CARRINGTON V. RASH, 380
U.S. 89 (1965). 

RATHER, A DISCRIMINATION TO WHICH THE PENALTY PROVISION OF 2 IS
INAPPLICABLE MUST STILL BE JUDGED AGAINST THE EQUAL PROTECTION CLAUSE
OF 1 TO DETERMINE WHETHER JUDICIAL OR CONGRESSIONAL REMEDIES SHOULD BE
INVOKED.  THAT CONCLUSION IS COMPELLED BY THIS COURT'S HOLDING IN
OREGON V. MITCHELL, 400 U.S. 112 (1970).  ALTHOUGH 2 EXCEPTS FROM ITS
TERMS DENIAL OF THE FRANCHISE NOT ONLY TO EX-FELONS BUT ALSO TO PERSONS
UNDER 21 YEARS OF AGE, WE HELD THAT THE CONGRESS, UNDER 5, HAD THE
POWER TO IMPLEMENT THE EQUAL PROTECTION CLAUSE BY LOWERING THE VOTING
AGE TO 18 IN FEDERAL ELECTIONS.  AS MR. JUSTICE BRENNAN, JOINED BY MR.
JUSTICE WHITE, AS WELL AS MYSELF, THERE OBSERVED, 2 WAS INTENDED AS NO
MORE "THAN A REMEDY SUPPLEMENTARY, AND IN SOME CONCEIVABLE
CIRCUMSTANCES INDISPENSABLE, TO OTHER CONGRESSIONAL AND JUDICIAL
REMEDIES AVAILABLE UNDER 1 AND 5."  400 U.S., AT 278. 

THE COURT'S REFERENCES TO CONGRESSIONAL ENACTMENTS CONTEMPORANEOUS
TO THE ADOPTION OF THE FOURTEENTH AMENDMENT, SUCH AS THE RECONSTRUCTION
ACT AND THE READMISSION STATUTES, ARE INAPPOSITE.  THEY DO NOT EXPLAIN
THE PURPOSE FOR THE ADOPTION OF 2 OF THE FOURTEENTH AMENDMENT.  THEY
MERELY INDICATE THAT DISENFRANCHISEMENT FOR PARTICIPATION IN CRIME WAS
NOT UNCOMMON IN THE STATES AT THE TIME OF THE ADOPTION OF THE
AMENDMENT.  HENCE, NOT SURPRISINGLY, THAT FORM OF DISENFRANCHISEMENT
WAS EXCEPTED FROM THE APPLICATION OF THE SPECIAL PENALTY PROVISION OF
2.  BUT BECAUSE CONGRESS CHOSE TO EXEMPT ONE FORM OF ELECTORAL
DISCRIMINATION FROM THE REDUCTION-OF-REPRESENTATION REMEDY PROVIDED BY
2 DOES NOT NECESSARILY IMPLY CONGRESSIONAL APPROVAL OF THIS
DISENFRANCHISEMENT.  /24/  BY PROVIDING A SPECIAL REMEDY FOR
DISENFRANCHISEMENT OF A PARTICULAR CLASS OF VOTERS IN 2, CONGRESS DID
NOT APPROVE ALL ELECTION DISCRIMINATIONS TO WHICH THE 2 REMEDY WAS
INAPPLICABLE, AND SUCH DISCRIMINATIONS THUS ARE NOT FOREVER IMMUNIZED
FROM EVOLVING STANDARDS OF EQUAL PROTECTION SCRUTINY.  CF. SHAPIRO V.
THOMPSON, 394 U.S. 618, 638 - 639 (1969).  THERE IS NO BASIS FOR
CONCLUDING THAT CONGRESS INTENDED BY 2 TO FREEZE THE MEANING OF OTHER
CLAUSES OF THE FOURTEENTH AMENDMENT TO THE CONCEPTION OF VOTING RIGHTS
PREVALENT AT THE TIME OF THE ADOPTION OF THE AMENDMENT.  IN FACT, ONE
FORM OF DISENFRANCHISEMENT--ONE-YEAR DURATIONAL RESIDENCE REQUIREMENTS-
SPECIFICALLY AUTHORIZED BY THE RECONSTRUCTION ACT, ONE OF THE
CONTEMPORANEOUS ENACTMENTS UPON WHICH THE COURT RELIES TO SHOW THE
INTENDMENT OF THE FRAMERS OF THE FOURTEENTH AMENDMENT, HAS ALREADY BEEN
DECLARED UNCONSTITUTIONAL BY THIS COURT IN DUNN V. BLUMSTEIN, 405 U.S.
330 (1972). 

DISENFRANCHISEMENT FOR PARTICIPATION IN CRIME, LIKE DURATIONAL
RESIDENCE REQUIREMENTS, WAS COMMON AT THE TIME OF THE ADOPTION OF THE
FOURTEENTH AMENDMENT.  BUT "CONSTITUTIONAL CONCEPTS OF EQUAL PROTECTION
ARE NOT IMMUTABLY FROZEN LIKE INSECTS TRAPPED IN DEVONIAN AMBER." 
DILLENBURG V. KRAMER, 469 F.2D 1222, 1226 (CA9 1972).  WE HAVE
REPEATEDLY OBSERVED THAT: 

"(THE EQUAL PROTECTION CLAUSE IS NOT SHACKLED TO THE POLITICAL
THEORY OF A PARTICULAR ERA.  IN DETERMINING WHAT LINES ARE
UNCONSTITUTIONALLY DISCRIMINATORY, WE HAVE NEVER BEEN CONFINED TO
HISTORIC NOTIONS OF EQUALITY, ANY MORE THAN WE HAVE RESTRICTED DUE
PROCESS TO A FIXED CATALOGUE OF WHAT WAS AT A GIVEN TIME DEEMED TO BE
THE LIMITS OF FUNDAMENTAL RIGHTS."  HARPER V. VIRGINIA BOARD OF
ELECTIONS, 383 U.S. 663, 669 (1966).  ACCORDINGLY, NEITHER THE FACT
THAT SEVERAL STATES HAD EX-FELON DISENFRANCHISEMENT LAWS AT THE TIME OF
THE ADOPTION OF THE FOURTEENTH AMENDMENT, NOR THAT SUCH
DISENFRANCHISEMENT WAS SPECIFICALLY EXCEPTED FROM THE SPECIAL REMEDY OF
2, CAN SERVE TO INSULATE SUCH DISENFRANCHISEMENT FROM EQUAL PROTECTION
SCRUTINY. 

        III 

IN MY VIEW, THE DISENFRANCHISEMENT OF EX-FELONS MUST BE MEASURED
AGAINST THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE OF 1 OF THE
FOURTEENTH AMENDMENT.  THAT ANALYSIS PROPERLY BEGINS WITH THE
OBSERVATION THAT BECAUSE THE RIGHT TO VOTE "IS OF THE ESSENCE OF A
DEMOCRATIC SOCIETY, AND ANY RESTRICTIONS ON THAT RIGHT STRIKE AT THE
HEART OF REPRESENTATIVE GOVERNMENT," REYNOLDS V. SIMS, 377 U.S.,AT 555,
VOTING IS A "FUNDAMENTAL" RIGHT.  AS WE OBSERVED IN DUNN V. BLUMSTEIN,
SUPRA, AT 336: 

"THERE IS NO NEED TO REPEAT NOW THE LABORS UNDERTAKEN IN EARLIER
CASES TO ANALYSIS (THE) RIGHT TO VOTE AND TO EXPLAIN IN DETAIL THE
JUDICIAL ROLE IN REVIEWING STATE STATUTES THAT SELECTIVELY DISTRIBUTE
THE FRANCHISE.  IN DECISION AFTER DECISION, THIS COURT HAS MADE CLEAR
THAT A CITIZEN HAS A CONSTITUTIONALLY PROTECTED RIGHT TO PARTICIPATE IN
ELECTIONS ON AN EQUAL BASIS WITH OTHER CITIZENS IN THE JURISDICTION. 
SEE, E.G., EVANS V. CORNMAN, 398 U.S. 419, 421 - 422, 426 (1970);
KRAMER V. UNION FREE SCHOOL DISTRICT, 395 U.S. 621, 626 - 628 (1969);
CIPRIANO V. CITY OF HOUMA, 395 U.S. 701, 706 (1969); HARPER V. VIRGINIA
BOARD OF ELECTIONS, 383 U.S. 663, 667 (1966); CARRINGTON V. RASH, 380
U.S. 89, 93 - 94 (1965); REYNOLDS V. SIMS, SUPRA." WE CONCLUDED, "(IF A
CHALLENGED STATUTE GRANTS THE RIGHT TO VOTE TO SOME CITIZENS AND DENIES
THE FRANCHISE TO OTHERS, 'THE COURT MUST DETERMINE WHETHER THE
EXCLUSIONS ARE NECESSARY TO PROMOTE A COMPELLING STATE INTEREST.'"  405
U.S.,AT 337.  (EMPHASIS IN ORIGINAL.) 

TO DETERMINE THAT THE COMPELLING-STATE-INTEREST TEST APPLIES TO THE
CHALLENGED CLASSIFICATION IS, HOWEVER, TO SETTLE ONLY A THRESHOLD
QUESTION.  "COMPELLING STATE INTEREST" IS MERELY A SHORTHAND
DESCRIPTION OF THE DIFFICULT PROCESS OF BALANCING INDIVIDUAL AND STATE
INTERESTS THAT THE COURT MUST EMBARK UPON WHEN FACED WITH A
CLASSIFICATION TOUCHING ON FUNDAMENTAL RIGHTS.  OUR OTHER EQUAL
PROTECTION CASES GIVE CONTENT TO THE NATURE OF THAT BALANCE.  THE STATE
HAS THE HEAVY BURDEN OF SHOWING, FIRST, THAT THE CHALLENGED
DISENFRANCHISEMENT IS NECESSARY TO A LEGITIMATE AND SUBSTANTIAL STATE
INTEREST; SECOND, THAT THE CLASSIFICATION IS DRAWN WITH PRECISION--THAT
IT DOES NOT EXCLUDE TOO MANY PEOPLE WHO SHOULD NOT AND NEED NOT BE
EXCLUDED; AND, THIRD, THAT THERE ARE NO OTHER REASONABLE WAYS TO
ACHIEVE THE STATE'S GOAL WITH A LESSER BURDEN ON THE CONSTITUTIONALLY
PROTECTED INTEREST.  E.G., DUNN V. BLUMSTEIN, SUPRA, AT 343, 360;
KRAMER V. UNION FREE SCHOOL DISTRICT, 395 U.S. 621, 632 (1969); SEE
ROSARIO V. ROCKEFELLER, 410 U.S. 752, 770 (1973) (POWELL, J.,
DISSENTING); CF. MEMORIAL HOSPITAL V. MARICOPA COUNTY, 415 U.S. 250
(1974); NAACP V. BUTTON, 371 U.S. 415, 438 (1963); SHELTON V. TUCKER,
364 U.S. 479, 488 (1960). 

I THINK IT CLEAR THAT THE STATE HAS NOT MET ITS BURDEN OF JUSTIFYING
THE BLANKET DISENFRANCHISEMENT OF FORMER FELONS PRESENTED BY THIS
CASE.  THERE IS CERTAINLY NO BASIS FOR ASSERTING THAT EX-FELONS HAVE
ANY LESS INTEREST IN THE DEMOCRATIC PROCESS THAN ANY OTHER CITIZEN. 
LIKE EVERYONE ELSE, THEIR DAILY LIVES ARE DEEPLY AFFECTED AND CHANGED
BY THE DECISIONS OF GOVERNMENT.  SEE KRAMER, SUPRA, AT 627.  AS THE
SECRETARY OF STATE OF CALIFORNIA OBSERVED IN HIS MEMORANDUM TO THE
COURT IN SUPPORT OF RESPONDENTS IN THIS CASE: 

"IT IS DOUBTFUL . . . WHETHER THE STATE CAN DEMONSTRATE EITHER A
COMPELLING OR RATIONAL POLICY INTEREST IN DENYING FORMER FELONS THE
RIGHT TO VOTE.  THE INDIVIDUALS INVOLVED IN THE PRESENT CASE ARE
PERSONS WHO HAVE FULLY PAID THEIR DEBT TO SOCIETY.  THEY ARE AS MUCH
AFFECTED BY THE ACTIONS OF GOVERNMENT AS ANY OTHER CITIZENS, AND HAVE
AS MUCH OF A RIGHT TO PARTICIPATE IN GOVERNMENTAL DECISION-MAKING. 
FURTHERMORE, THE DENIAL OF THE RIGHT TO VOTE TO SUCH PERSONS IS A
HINDRANCE TO THE EFFORTS OF SOCIETY TO REHABILITATE FORMER FELONS AND
CONVERT THEM INTO LAW-ABIDING AND PRODUCTIVE CITIZENS.  /25/ 

IT IS ARGUED THAT DISENFRANCHISEMENT IS NECESSARY TO PREVENT VOTE
FRAUDS.  ALTHOUGH THE STATE HAS A LEGITIMATE AND, IN FACT, COMPELLING
INTEREST IN PREVENTING ELECTORAL FRAUD, THE CHALLENGED PROVISION IS NOT
SUSTAINABLE ON THAT GROUND.  FIRST, THE DISENFRANCHISEMENT PROVISIONS
ARE PATENTLY BOTH OVERINCLUSIVE AND UNDERINCLUSIVE.  THE PROVISION IS
NOT LIMITED TO THOSE WHO HAVE DEMONSTRATED A MARKED PROPENSITY FOR
ABUSING THE BALLOT BY VIOLATING ELECTION LAWS.  RATHER, IT ENCOMPASSES
ALL FORMER FELONS AND THERE HAS BEEN NO SHOWING THAT EX-FELONS
GENERALLY ARE ANY MORE LIKLY TO ABUSE THE BALLOT THAN THE REMAINDER OF
THE POPULATION.  SEE DILLENBURG V. KRAMER, 469 F.2D,AT 1225.  IN
CONTRAST, MANY OF THOSE CONVICTED OF VIOLATING ELECTION LAWS ARE
TREATED AS MISDEMEANANTS AND ARE NOT BARRED FROM VOTING AT ALL.  IT
SEEMS CLEAR THAT THE CLASSIFICATION HERE IS NOT TAILORED TO ACHIEVE ITS
ARTICULATED GOAL, SINCE IT CRUDELY EXCLUDES LARGE NUMBERS OF OTHERWISE
QUALIFIED VOTERS.  SEE KRAMER V. UNION FREE SCHOOL DISTRICT, SUPRA, AT
632; CIPRIANO V. CITY OF HOUMA, 395 U.S. 701, 706 (1969). 

MOREOVER, THERE ARE MEANS AVAILABLE FOR THE STATE TO PREVENT VOTING
FRAUD WHICH ARE FAR LESS BURDENSOME ON THE CONSTITUTIONALLY PROTECTED
RIGHT TO VOTE.  AS WE SAID IN DUNN, SUPRA, AT 353, THE STATE "HAS AT
ITS DISPOSAL A VARIETY OF CRIMINAL LAWS THAT ARE MORE THAN ADEQUATE TO
DETECT AND DETER WHATEVER FRAUD MAY BE FEARED."  CF. HARMAN V.
FORSSENIUS, 380 U.S. 528, 543 (1965); SCHNEIDER V. STATE, 308 U.S. 147,
164 (1939).  THE CALIFORNIA COURT'S CATALOGUE OF THAT STATE'S PENAL
SANCTIONS FOR ELECTION FRAUD SURELY DEMONSTRATES THAT THERE ARE
ADEQUATE ALTERNATIVES TO DISENFRANCHISEMENT. 

"TODAY . . . THE ELECTIONS CODE PUNISHES AT LEAST 76 DIFFERENT ACTS
AS FELONIES, IN 33 SEPARATE SECTIONS; AT LEAST 60 ADDITIONAL ACTS ARE
PUNISHED AS MISDEMEANORS, IN 40 SEPARATE SECTIONS; AND 14 MORE ACTS ARE
DECLARED TO BE FELONY-MISDEMEANORS.  AMONG THIS PLETHORA OF OFFENSES WE
TAKE PARTICULAR NOTE, IN THE PRESENT CONNECTION, OF THE FELONY
SANCTIONS AGAINST FRAUDULENT REGISTRATIONS (220), BUTING AND SELLING OF
VOTES (12000 - 12008), INTIMIDATING VOTERS BY THREAT OR BRIBERY (29130
29135), VOTING TWICE, OR FRAUDULENTLY VOTING WITHOUT BEING ENTITLED TO
DO SO, OR IMPERSONATING ANOTHER VOTER (14403, 29430 - 29431), FRAUD OR
FORGERY IN CASTING ABSENTEE BALLOTS (14690 - 14692), TAMPERING WITH
VOTING MACHINES (15280) OR BALLOT BOXES (17090 - 17092), FORGING OR
ALTERING ELECTION RETURNS (29100 - 29103), AND SO INTERFERING 'WITH THE
OFFICERS HOLDING AN ELECTION OR CONDUCTING A CANVASS, OR WITH THE
VOTERS LAWFULLY EXERCISING THEIR RIGHTS OF VOTING AT AN ELECTION, AS TO
PREVENT THE ELECTION OR CANVASS FROM BEING FAIRLY HELD AND LAWFULLY
CONDUCTED' (17093)."  9 CAL.3D, AT 215 - 216, 507 P.2D, AT 1355 - 1356
(1973) (FOOTNOTES OMITTED).  GIVEN THE PANOPLY OF CRIMINAL OFFENSES
AVAILABLE TO DETER AND TO PUNISH ELECTORAL MISCONDUCT, AS WELL AS THE
STATUTORY REFORMS AND TECHNOLOGICAL CHANGES WHICH HAVE TRANSFORMED THE
ELECTORAL PROCESS IN THE LAST CENTURY, ELECTION FRAUD MAY NO LONGER BE
A SERIOUS DANGER.  /26/ 

ANOTHER ASSERTED PURPOSE IS TO KEEP FORMER FELONS FROM VOTING
BECAUSE THEIR LIKELY VOTING PATTERN MIGHT BE SUBVERSIVE OF THE
INTERESTS OF AN ORDERLY SOCIETY.  SEE GREEN V. BOARD OF ELECTIONS, 380
F.2D 445, 451 (CA2 1967).  SUPPORT FOR THE ARGUMENT THAT ELECTORS CAN
BE KEPT FROM THE BALLOT BOX FOR FEAR THEY MIGHT VOTE TO REPEAL OR
EMASCULATE PROVISIONS OF THE CRIMINAL CODE, IS DRAWN PRIMARILY FROM
THIS COURT'S DECISIONS IN MURPHY V. RAMSEY, 114 U.S. 15 (1885), AND
DAVIS V. BEASON, 133 U.S. 333 (1890).  IN MURPHY, THE COURT UPHELD THE
DISENFRANCHISEMENT OF ANYONE WHO HAD EVER ENTERED INTO A BIGAMOUS OR
POLYGAMOUS MARRIAGE, AND IN DAVIS, THE COURT SANCTIONED, AS A CONDITION
TO THE EXERCISE OF FRANCHISE, THE REQUIREMENT OF AN OATH THAT THE
ELECTOR DID NOT "TEACH, ADVISE, COUNSEL OR ENCOURAGE ANY PERSON TO
COMMIT THE CRIME OF BIGAMY OR POLYGAMY."  THE COURT'S INTENT WAS CLEAR-
"TO WITHDRAW ALL POLITICAL INFLUENCE FROM THOSE WHO ARE PRACTICALLY
HOSTILE TO" THE GOALS OF CERTAIN CRIMINAL LAWS.  MURPHY, SUPRA, AT 45;
DAVIS, SUPRA, AT 348. 

TO THE EXTENT MURPHY AND DAVIS APPROVE THE DOCTRINE THAT CITIZENS
CAN BE BARRED FROM THE BALLOT BOX BECAUSE THEY WOULD VOTE TO CHANGE THE
EXISTING CRIMINAL LAW, THOSE DECISIONS ARE SURELY OF MINIMAL CONTINUING
PRECEDENTIAL VALUE.  WE HAVE SINCE EXPLICITLY HELD THAT SUCH
"DIFFERENCES OF OPINION CANNOT JUSTIFY EXCLUDING (ANY) GROUP FROM . . .
'THE FRANCHISE,'" CIPRIANO V. CITY OF HOUMA, 395 U.S.,AT 705 - 706; SEE
COMMUNIST PARTY OF INDIANA V. WHITCOMB, 414 U.S. 441 (1974); EVANS V.
CORNMAN, 398 U.S. 419, 423 (1970).     "(IF THEY ARE . . . RESIDENTS, .
. . THEY, AS ALL OTHER QUALIFIED RESIDENTS, HAVE A RIGHT TO AN EQUAL
OPPORTUNITY FOR POLITICAL REPRESENTATION.  . . . 'FENCING OUT' FROM THE
FRANCHISE A SECTOR OF THE POPULATION BECAUSE OF THE WAY THEY MAY VOTE
IS CONSTITUTIONALLY IMPERMISSIBLE."  CARRINGTON V. RASH, 380 U.S.,AT
94.  SEE DUNN, 405 U.S.,AT 355. 

ALTHOUGH, IN THE LAST CENTURY, THIS COURT MAY HAVE JUSTIFIED THE
EXCLUSION OF VOTERS FROM THE ELECTORAL PROCESS FOR FEAR THAT THEY WOULD
VOTE TO CHANGE LAWS CONSIDERED IMPORTANT BY A TEMPORAL MAJORITY, I HAVE
LITTLE DOUBT THAT WE WOULD NOT COUNTENANCE SUCH A PURPOSE TODAY.  THE
PROCESS OF DEMOCRACY IS ONE OF CHANGE.  OUR LAWS ARE NOT FROZEN INTO
IMMUTABLE FORM, THEY ARE CONSTANTLY IN THE PROCESS OF REVISION TO THE
NEEDS OF A CHANGING SOCIETY.  THE PUBLIC INTEREST, AS CONCEIVED BY A
MAJORITY OF THE VOTING PUBLIC, IS CONSTANTLY UNDERGOING REEXAMINATION. 
THIS COURT'S HOLDING IN DAVIS, SUPRA, AND MURPHY, SUPRA, THAT A STATE
MAY DISENFRANCHISE A CLASS OF VOTERS TO "WITHDRAW ALL POLITICAL
INFLUENCE FROM THOSE WHO ARE PRACTICALLY HOSTILE" TO THE EXISTING
ORDER, STRIKES AT THE VERY HEART OF THE DEMOCRATIC PROCESS.  A TEMPORAL
MAJORITY COULD USE SUCH A POWER TO PRESERVE INVIOLATE ITS VIEW OF THE
SOCIAL ORDER SIMPLY BY DISENFRANCHISING THOSE WITH DIFFERENT VIEWS. 
VOTERS WHO OPPOSED THE REPEAL OF PROHIBITION COULD HAVE DISENFRANCHISED
THOSE WHO ADVOCATED REPEAL "TO PREVENT PERSONS FROM BEING ENABLED BY
THEIR VOTES TO DEFEAT THE CRIMINAL LAWS OF THE COUNTY."  DAVIS, SUPRA,
AT 348.  TODAY, PRESUMABLY THOSE WHO SUPPORT THE LEGALIZATION OF
MARIHUANA COULD BE BARRED FROM THE BALLOT BOX FOR MUCH THE SAME
REASON.  THE BALLOT IS THE DEMOCRATIC SYSTEM'S COIN OF THE REALM.  TO
CONDITION ITS EXERCISE ON SUPPORT OF THE ESTABLISHED ORDER IS TO DEBASE
THAT CURRENCY BEYOND RECOGNITION.  RATHER THAN RESURRECT DAVIS AND
MURPHY, I WOULD EXPRESSLY DISAVOW ANY CONTINUED ADHERENCE TO THE
DANGEROUS NOTIONS THEREIN EXPRESSED.  /27/ 

THE PUBLIC PURPOSES ASSERTED TO BE SERVED BY DISENFRANCHISEMENT HAVE
BEEN FOUND WANTING IN MANY QUARTERS.  WHEN THIS SUIT WAS FILED, 23
STATES ALLOWED EX-FELONS FULL ACCESS TO THE BALLOT.  SINCE THAT TIME,
FOUR MORE STATES HAVE JOINED THEIR RANKS.  /28/  SHORTLY AFTER LOWER
FEDERAL COURTS SUSTAINED NEW YORK'S AND FLORIDA'S DISENFRANCHISEMENT
PROVISIONS, THE LEGISLATURES REPEALED THOSE LAWS.  CONGRESS HAS
RECENTLY PROVIDED FOR THE RESTORATION OF FELONS' VOTING RIGHTS AT THE
END OF SENTENCE OR PAROLE IN THE DISTRICT OF COLUMBIA.  D.C. CODE 1 -
1102 (7) (1973).  THE NATIONAL CONFERENCE ON UNIFORM STATE LAWS, /29/
THE AMERICAN LAW INSTITUTE, /30/  THE NATIONAL PROBATION AND PAROLE
ASSOCIATION, /31/  THE NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE
STANDARDS AND GOALS, /32/ THE ADMINISTRATION OF JUSTICE, /33/  THE
CALIFORNIA LEAGUE OF WOMEN VOTERS, /34/  THE NATIONAL DEMOCRATIC PARTY,
/35/  AND THE SECRETARY OF STATE OF CALIFORNIA /36/  HAVE ALL STRONGLY
ENDORSED FULL SUFFRAGE RIGHTS FOR FORMER FELONS. 

THE DISENFRANCHISEMENT OF EX-FELONS HAD "ITS ORIGIN IN THE FOGS AND
FICTIONS OF FEUDAL JURISPRUDENCE AND DOUBTLESS HAS BEEN BROUGHT FORWARD
INTO MODERN STATUTES WITHOUT FULLY REALIZING EITHER THE EFFECT OF ITS
LITERAL SIGNIFICANCE OR THE EXTENT OF ITS INFRINGEMENT UPON THE SPIRIT
OF OUR SYSTEM OF GOVERNMENT."  BYERS V. SUN SAVINGS BANK, 41 OKLA. 728,
731, 139 P. 948, 949 (1914).  I THINK IT CLEAR THAT MEASURED AGAINST
THE STANDARDS OF THIS COURT'S MODERN EQUAL PROTECTION JURISPRUDENCE,
THE BLANKET DISENFRANCHISEMENT OF EX-FELONS CANNOT STAND. 

I RESPECTFULLY DISSENT. 

/1/  THE PROCEEDING BELOW WAS A PETITION FOR A WRIT OF MANDATE IN
THE CALIFORNIA SUPREME COURT, HENCE THE MOVING PARTIES SHOULD PROPERLY
BE DESCRIBED AS PETITIONERS RATHER THAN PLAINTIFFS.  HOWEVER, TO AVOID
CONFUSION, SINCE THE PETITIONERS BELOW ARE THE RESPONDENTS HERE AND
VICE VERSA, THE PARTIES IN THE CALIFORNIA COURT WILL BE REFERRED TO
HEREIN SIMPLY AS PLAINTIFFS AND DEFENDANTS. 

/2/  CALIFORNIA CONST., ART. II, 1, PROVIDED, IN PART, THAT "NO
PERSON CONVICTED OF ANY INFAMOUS CRIME . . . SHALL EVER EXERCISE THE
PRIVILEGES OF AN ELECTOR IN THIS STATE."  ARTICLE II, 1, WAS REPEALED
BY REFERENDUM AT THE NOVERMBER 7, 1972, GENERAL ELECTION AND WAS
REPLACED BY A NEW ART. II, 3, CONTAINING THE SAME PROHIBITION.  THE
STATE IMPLEMENTING STATUTES INCLUDE CALIFORNIA ELECTIONS CODE 310, 321,
383, 389, 390, AND 14240. 

/3/  THE ATTORNEY GENERAL FILED A SEPARATE PETITION FOR CERTIORARI,
NO. 73 - 324, TO REVIEW THE JUDGMENT OF THE CALIFORNIA SUPREME COURT. 
THE SECRETARY OF STATE FILED A MEMORANDUM OPPOSING THAT PETITION FOR
CERTIORARI.  THE PETITION WAS DENIED TODAY, POST, P. 904. 

/4/  THE JUDGMENT OF THE CALIFORNIA SUPREME COURT IS BY CUSTOM THE
FINAL PARAGRAPH OF ITS OPINION.  THE ALTERNATIVE WRIT REFERRED TO IS
MERELY A SHOW-CAUSE ORDER, REQUIRING THE RESPONDENT TO COMPLY WITH THE
PETITIONER'S DEMAND OR SHOW CAUSE WHY IT SHOULD NOT BE ORDERED TO DO
SO. 

/5/  SEE 5 B. WITKIN, CAL. PROC. 2D, EXTRAORDINARY WRITS 22, PP.
3796 - 3797, AND 123, P. 3899 (1971). 

/6/  CALIF. CODE CIV. PROC. 1060; SEE 15 CAL. JUR.  2D, DECLARATORY
RELIEF 13; 3 B. WITKIN, CAL. PROC. 2D, PLEADING 705(C), P. 2329 (1971);
SEE, E.G., DILLS V. DELIRA CORP., 145 CAL.APP.2D 124, 129, 302 P.2D
397, 400 (1956). 

THE DIFFERENCE BETWEEN "MANDAMUS AND DECLARATORY RELIEF (IS) THAT
APPELLATE COURTS CANNOT GIVE THE LATTER."  5 B. WITKIN, CAL. PROC. 2D,
EXTRAORDINARY WRITS 21, P. 3796 (1971). 

/7/  IN THE FIRST CASE RELIED ON BY THE MAJORITY, IN RE WILLIAM M.,
3 CAL.3D 16, 473 P.2D 737 (1970), THE CALIFORNIA SUPREME COURT HAD
PREVIOUSLY GRANTED A WRIT OF HABEAS CORPUS WHICH EFFECTIVELY MOOTED THE
PETITIONER'S CLAIM FOR RELIEF.  THE COURT, NONETHELESS, LATER ISSUED AN
OPINION ON THE ISSUE POSED BY THE CASE WHILE DENYING FURTHER RELIEF. 
IN A FOOTNOTE, THE COURT OBSERVED THAT AS A GENERAL PROPOSITION, COURTS
SHOULD AVOID ADVISORY OPINIONS, BUT, IN THE VERY NEXT SENTENCE,
REAFFIRMED ITS INHERENT DISCRETION TO ISSUE SUCH OPINIONS.  IN THE
ACCOMPANYING TEXT, THE COURT NOTED THAT IT COULD RENDER A DECISION IN A
MOOT CASE WHICH WOULD NOT BE BINDING ON A PARTY BEFORE IT, WHERE THE
CASE INVOLVED ISSUES OF PARTICULAR PUBLIC IMPORTANCE.  ALTHOUGH THE
COURT REFERRED TO ITS "DECLARATORY USE OF HABEAS CORPUS IN A NUMBER OF
CASES," CITING B. WITKIN, CAL. CRIM. PROC. 790 (1963), AND IN RE
FLUERY, 67 CAL.2D 600, 432 P.2D 986 (1967), THE WITKIN TREATISE REFERS
TO THE COURT'S "DECLARATORY USE OF HABEAS CORPUS" AND IN RE FLUERY,
SUPRA, IN PARTICULAR, AS EXAMPLES OF THE "USE OF THE WRIT TO RENDER A
PURELY ADVISORY OPINION UNNECESSARY TO THE DETERMINATION OF THE
PARTICULAR CONTROVERSY."  B. WITKIN, CAL. CRIM. PROC., HABEAS CORPUS
AND OTHER EXTRAORDINARY WRITS 790, P. 247 (SUPP. 1967). 

THE SECOND CASE RELIED ON BY THE MAJORITY IS YOUNG V. GNOSS, 7
CAL.3D 18, 496 P.2D 445 (1972), CITED BY THE COURT BELOW SOLELY FOR THE
PROPOSITION THAT MANDAMUS IS AN APPROPRIATE REMEDY TO SEEK IN AN
ORIGINAL PROCEEDING.  IN THAT CASE, THE PETITIONERS HAD SOUGHT MANDAMUS
RELIEF FROM THE APPLICATION OF A STATE DURATIONAL RESIDENCE REQUIREMENT
FOR VOTING IN ORDER THAT THEY MIGHT VOTE IN A JUNE PRIMARY.  THE
CALIFORNIA SUPREME COURT, IN A LENGTHY OPINION, INDICATED THAT THE
CHALLENGED REQUIREMENT WAS UNCONSTITUTIONAL ON THE AUTHORITY OF OUR
DECISION IN DUNN V. BLUMSTEIN, 405 U.S. 330 (1972), BUT EXERCISED ITS
EQUITABLE DISCRETION NOT TO ORDER A CHANGE IN THE RESIDENCE
REQUIREMENTS FOR THE JUNE PRIMARY BECAUSE TOO LITTLE TIME REMAINED FOR
SUCH A CHANGE TO BE IMPLEMENTED IN AN ORDERLY FASHION.  ACCORDINGLY,
MANDAMUS RELIEF WAS DENIED.  THE COURT RECOMMENDED THAT THE NECESSARY
CHANGES IN RESIDENCE REQUIREMENTS BE EFFECTED BEFORE THE NOVEMBER
ELECTION BUT DID NOT SO ORDER TO GIVE THE "LEGISLATURE THE OPPORTUNITY
TO ADDRESS ITSELF TO THE PROBLEM . . . ."  7 CAL.3D,AT 28, 496 P.2D,AT
452 - 453.  THE COURT RELIED ON ITS EARLIER DECISION IN LEGISLATURE V.
REINECKE, 6 CAL.3D 595, 492 P.2D 385 (1972), WHERE THE COURT HAD
EXPRESSED ITS VIEWS ON A LEGISLATIVE REAPPORTIONMENT PROBLEM, DENIED A
WRIT OF MANDATE, AND RETAINED JURISDICTION TO ALLOW THE LEGISLATURE AN
OPPORTUNITY TO ACT BEFORE PROVIDING ANY JUDICIAL RELIEF. 

EACH OF THESE CASES INVOLVES EXAMPLES OF ADVISORY OPINIONS RATHER
THAN DECLARATORY RELIEF.  IN THE LATTER, WHAT THE CALIFORNIA SUPREME
COURT DID WAS TO PROVIDE SOME GUIDANCE TO THE LEGISLATURE WHILE STAYING
ITS HAND AND NOT AFFORDING JUDICIAL RELIEF FOR THE CLAIMED
DEPRIVATION.  IT SEEMS WELL SETTLED THAT CALIFORNIA COURTS HAVE
"INHERENT DISCRETION" TO ISSUE SUCH ADVISORY OPINIONS.  SEE 2 B.
WITKIN, CAL. PROC. 2D, ACTIONS 44, P. 920 (1970); ID., 42, P. 916; 5 B.
WITKIN, CAL. PROC. 2D, EXTRAORDINARY WRITS 117, P. 3894; CF. KIRSTOWSKY
V. SUPERIOR COURT, 143 CAL.APP.2D 745, 749, 300 P.2D 163, 166 (1956). 

/8/  THE COURT HAS HELD, FOR EXAMPLE, THAT ART. III RESTRICTS
STANDING TO BRING A CLASS ACTION TO THE ACTUAL MEMBERS OF THE CLASS. 
O'SHEA V. LITTLETON, 414 U.S. 488 (1974).  THE NAMED PLAINTIFFS HERE
HAD BEEN DISENFRANCHISED AT THE TIME THEY FILED SUIT, AND THERE IS THUS
NO QUESTION CONCERNING THEIR STANDING TO CHALLENGE THE CALIFORNIA
DISENFRANCHISEMENT PROVISIONS. 

/9/  THE COURT DISTINGUISHED ITS DECISION IN HALL V. BEALS, 396 U.S.
45 (1969), FINDING A CHALLENGE TO COLORADO'S DURATIONAL RESIDENCE
REQUIREMENT MOOT, ON THE GROUNDS THAT, IN HALL, THERE HAD BEEN AN
INTERVENING CHANGE IN LAW REDUCING THE RESIDENCE REQUIREMENTS FROM SIX
MONTHS TO TWO WHILE THE CASE WAS ON APPEAL.  ACCORDINGLY, APPLICATION
OF THE SIX-MONTH REQUIREMENT WAS INCAPABLE OF REPETITION AS TO THE
NAMED PLAINTIFF OR ANY OTHER MEMBER OF HIS CLASS, AND, HAVING NEVER
BEEN DISENFRANCHISED THEREBY, THE NAMED PLAINTIFF HAD NO STANDING TO
CHALLENGE THE TWO-MONTH REQUIREMENT. 

/10/  THE COURT HAS FOUND A LIVE CONTROVERSY IN OTHER VOTING CASES
IN WHICH INTERVENING CIRCUMSTANCES SEEMED TO HAVE MOOTED THE NAMED
PLAINTIFF'S CLAIM FOR RELIEF.  MOORE V. OGILVIE, 394 U.S. 814 (1969),
FOR EXAMPLE, WAS AN APPEAL FROM A DECISION DENYING RELIEF TO APPELLANTS
WHO HAD UNSUCCESSFULLY SOUGHT TO BE CERTIFIED, AS REQUIRED BY STATE
LAW, AS INDEPENDENT CANDIDATES FOR PRESIDENTIAL ELECTOR ON THE 1968
BALLOT.  APPELLANTS ASSERTED THAT THE ILLINOIS CERTIFICATION
REQUIREMENT VIOLATED THE STATE'S CONSTITUTIONAL OBLIGATION NOT TO
DISCRIMINATE AGAINST VOTERS IN LESS POPULOUS COUNTIES.  BY THE TIME
THEIR APPEAL REACHED THIS COURT, THE 1968 ELECTION HAD ALREADY TAKEN
PLACE, BUT WE HELD THE CASE WAS NOT MOOT BECAUSE "WHILE THE 1968
ELECTION IS OVER, (THE CHALLENGED BURDEN) REMAINS AND CONTROLS FUTURE
ELECTIONS . . . ," ID., AT 816; SEE HALL V. BEALS, SUPRA, AT 49, AND
THE SHORT SPAN OF TIME BETWEEN THE DENIAL OF CERTIFICATION FOR
CANDIDACY AND ACTUAL BALLOTING THREATENS TO MOOT ALL FUTURE ATTACKS ON
THE QUESTIONED CANDIDACY REQUIREMENTS.  394 U.S., AT 816.  SEE ALSO
STORER V. BROWN, 415 U.S. 724, 737 N. 8 (1974); ROSARIO V. ROCKEFELLER,
410 U.S. 752, 756 N. 5 (1973). 

/11/  THE EXTENT OF CONTINUING DISENFRANCHISEMENT IS APT TO BE
MINIMAL.  A SURVEY CONDUCTED BY THE SECRETARY OF STATE OF CALIFORNIA
INDICATED THAT THE ELECTION OFFICIALS OF 52 OF THE 58 COUNTIES IN
CALIFORNIA, REPRESENTING COUNTIES WHICH CONTAIN 97.39% OF THE
REGISTERED VOTERS IN THE STATE, AGREED WITH THE CLERKS IN THE NAMED
PLAINTIFFS' COUNTIES THAT EX-FELONS SHOULD NOT BE BARRED FROM VOTING IN
THEIR COUNTIES.  BRIEF FOR RESPONDENTS 30. 

/12/  THE COURT'S OPINION CITES OUR DECISION IN INDIANA EMPLOYMENT
SECURITY DIV. V. BURNEY, 409 U.S. 540 (1973), FOR THE PROPOSITION THAT
UNNAMED CLASS MEMBERS MAY NOT BE LOOKED TO IN CASES ARISING FROM THE
FEDERAL SYSTEM, BUT THE CASE DOES NOT SUPPORT THAT PROPOSITION.  BURNEY
CONCERNED A CONSTITUTIONAL CHALLENGE TO THE TERMINATION OF UNEMPLOYMENT
INSURANCE BENEFITS WITHOUT A PRIOR HEARING.  THE ONLY NAMED CLASS
REPRESENTATIVE RECEIVED A POST-TERMINATION HEARING AT WHICH SHE
OBTAINED A REVERSAL OF THE INITIAL DETERMINATION OF INELIGIBILITY AND
FULL RETROACTIVE BENEFITS.  THE COURT REMANDED FOR CONSIDERATION OF
MOOTNESS.  THE JURISDICTIONAL ISSUE IN THIS COURT REVOLVED AROUND
WHETHER THE CASE PRESENTED ISSUES "CAPABLE OF REPETITION, YET EVADING
REVIEW."  THE COURT DID NOT HAVE TO FIND THE ALLEGED CONSTITUTIONAL
DEPRIVATION INCAPABLE OF REPETITION, HENCE WAS NOT CONCERNED WITH THE
PROBLEM OF WHETHER A FUTURE APPLICATION TO THE NAMED CLASS
REPRESENTATIVE WAS REQUIRED.  RATHER, IT APPEARED THAT THE PRIOR
HEARING ISSUE WAS NOT ONE WHICH WOULD EVADE REVIEW.  BUT SEE ID., AT
542 - 546 (DISSENTING OPINION).  THE COURT REASONED THAT A POST
TERMINATION HEARING, AFFORDED AS A MATTER OF COURSE, WOULD NOT
INVARIABLY MOOT ALL CLAIMS FOR RELIEF FROM MEMBERS OF THE CLASS.  IF
THE POST-TERMINATION HEARING DID NOT RESULT IN AN AWARD OF RETROACTIVE
PAYMENTS, AS IT HAD IN THE NAMED PLAINTIFF'S CASE, A LIVE AND
CONTINUING CONTROVERSY WOULD BE PRESENTED AS TO THE INSURED'S CLAIM TO
THE BENEFITS ALLEGEDLY WRONGFULLY WITHHELD PENDING THE HEARING.  A CASE
HAD ALREADY COME TO THE COURT IN JUST SUCH A POSTURE, AND THE COURT HAD
SUMMARILY AFFIRMED THE JUDGMENT OF THE THREE-JUDGE COURT.  TORRES V.
NEW YORK STATE DEPARTMENT OF LABOR, 405 U.S. 949 (1972), BUT SEE 410
U.S. 971 (1973) (DISSENTING OPINION TO DENIAL OF REHEARING).  IT WAS A
FAILURE TO SATISFY THE "EVADING REVIEW" ELEMENT OF THE TEST THAT LED
THE COURT TO REMAND BURNEY FOR CONSIDERATION OF MOOTNESS. 

/13/  IN THE ABSENCE OF SUCH AN ORDER, PETITIONER RICHARDSON IS UNDER
NO COMPULSION TO REGISTER EX-FELONS IN HER COUNTY NOR SUBJECT TO ANY
PENALTY FOR FAILING TO DO SO.  SEE CAL. CODE CIV. PROC. 1097 (1955). 
/14/  THE SUIT AGAINST PETITIONER, RICHARDSON V. JAMES, 1 CIV. 32283,
IS PRESENTLY PENDING IN DIVISION 3 OF THE COURT OF APPEAL FOR THE FIRST
APPELLATE DISTRICT OF CALIFORNIA. 

/15/  IF CLAIMS OF THE NAMED PLAINTIFFS ARE MOOT, THE PROPER
DISPOSITION OF THIS CASE WOULD SEEM TO BE TO VACATE THE JUDGMENT OF THE
CALIFORNIA SUPREME COURT AND REMAND FOR SUCH PROCEEDINGS AS THAT COURT
DEEMS APPROPRIATE.  BROCKINGTON V. RHODES, 396 U.S. 41, 44 (1969). 

/16/  SEE, E.G., NOTE, RESTORING THE EX-OFFENDER'S RIGHT TO VOTE:
BACKGROUND AND DEVELOPMENTS, 11 AM.CRIM.L.REV.  721, 746 - 747, N. 158
(1973).     /17/  STATEMENT OF REP. ECKLEY, QUOTED, ANTE, AT 46. 

/18/  BONFIELD, THE RIGHT TO VOTE AND JUDICIAL ENFORCEMENT OF
(1960); H. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT 98, 126
(1908); B. KENDRICK, JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON
RECONSTRUCTION 290 - 291 (1914); J. JAMES, THE FRAMING OF THE
FOURTEENTH AMENDMENT 185 (1956); VAN ALSTYNE, THE FOURTEENTH AMENDMENT,
THE "RIGHT" TO VOTE, AND THE UNDERSTANDING OF THE THIRTY-NINTH
CONGRESS, 1965 SUP.CT.REV.  33, 44 (1965). 

/19/  JAMES, N. 18, SUPRA, AT 138 - 139. 

/20/  KENDRICK, N. 18, SUPRA, AT 291: CF. FLACK, N. 18, SUPRA, AT
111,118. 

/21/  BONFIELD, N. 18, SUPRA, AT 111; JAMES, N. 18, SUPRA, AT 185;
VAN ALSTYNE, N. 18, SUPRA, AT 43 - 44, 58, 65. 

/22/  ID., AT 43 - 44 (QUOTING FROM MATHEWS, LEGISLATIVE AND
JUDICIAL HISTORY OF THE FIFTEENTH AMENDMENT (1909). 

/23/  ID., AT 65. 

/24/  TO SAY THAT 2 OF THE FOURTEENTH AMENDMENT IS A DIRECT
LIMITATION ON THE PROTECTION AFFORDED VOTING RIGHTS BY 1 LEADS TO
ABSURD RESULTS.  IF ONE ACCEPTS THE PREMISE THAT 2 AUTHORIZES
DISENFRANCHISEMENT FOR ANY CRIME, THE CHALLENGED CALIFORNIA PROVISION
COULD, AS THE CALIFORNIA SUPREME COURT HAS OBSERVED, REQUIRE
DISENFRANCHISEMENT FOR SEDUCTION UNDER PROMISE OF MARRIAGE, OR
CONSPIRACY TO OPERATE A MOTOR VEHICLE WITHOUT A MUFFLER.  OTSUKA V.
HITE, 64 CAL.2D 596, 414 P.2D 412 (1966).  DISENFRANCHISEMENT EXTENDS
TO CONVICTIONS FOR VAGRANCY IN ALABAMA OR BREAKING A WATER PIPE IN
NORTH DAKOTA, TO NOTE BUT TWO EXAMPLES.  NOTE, DISENFRANCHISEMENT OF EX
FELONS:  A REASSESSMENT, 25 STAN.L.REV.  845, 846 (1973).  EVEN A
JAYWALKING OR TRAFFIC CONVICTION COULD CONCEIVABLY LEAD TO
DISENFRANCHISEMENT, SINCE 2 DOES NOT DIFFERENTIATE BETWEEN FELONIES AND
MISDEMEANORS. 

/25/  MEMORANDUM OF THE SECRETARY OF STATE OF CALIFORNIA IN
OPPOSITION TO CERTIORARI, IN CLASS OF COUNTY CLERKS AND REGISTRARS OF
VOTERS OF CALIFORNIA V. RAMIREZ, NO. 73 - 324. 

/26/  RAMIREZ V. BROWN, 9 CAL.3D 199, 215 - 216, 507 P.2D 1345, 1355
- 1356 (1973). 

/27/  THE COURT ALSO NOTES THAT THE DISENFRANCHISEMENT OF EX-FELONS
HAS RECEIVED SUPPORT IN THE DICTA OF THIS COURT AND THAT WE HAVE ONLY
RECENTLY AFFIRMED WITHOUT OPINION THE DECISIONS OF TWO THREE-JUDGE
DISTRICT COURTS UPHOLDING DISENFRANCHISEMENT PROVISIONS.  FINCHER V.
SCOTT, 352 F.SUPP.  117 (MDNC 1972), AFF'D MEM., 411 U.S. 961 (1973);
BEACHAM V. BRATERMAN, 300 F.SUPP.  182 (SD FLA.), AFF'D PER CURIAM, 396
U.S. 12 (1969).  BUT, DICTUM IS NOT PRECEDENT AND AS MR. JUSTICE
REHNQUIST HAS ONLY RECENTLY REMINDED US, SUMMARY AFFIRMANCES ARE
OBVIOUSLY NOT OF THE SAME PRECEDENTIAL VALUE AS WOULD BE AN OPINION OF
THIS COURT TREATING THE QUESTION ON THE MERITS.  EDELMAN V. JORDAN, 415
U.S. 651, 671 (1974).  SEE F. FRANKFURTER & J. LANDIS, THE BUSINESS OF
THE SUPREME COURT AT OCTOBER TERM, 1929, 44 HARV. L. REV. 1, 14
(1930). 

/28/  THE FOLLOWING STATES DO NOT DISENFRANCHISE ALL FORMER FELONS:
ARKANSAS, ARK. STAT. ANN. 3 - 707 (SUPP. 1973); COLORADO, COLO. CONST.,
ART. VII, 10, AND COLO. REV. STAT. ANN. 49 - 3 - 2 (PERM.  CUM.  SUPP.
1971); FLORIDA, FLA. STAT. ANN. 940.05 (1973); HAWAII, HAWAII REV.
STAT. 716 - 5 (SUPP. 1972); ILLINOIS, ILL. REV. STAT., C. 46, 3 - 5
(1973); INDIANA, IND. ANN. STAT. 29 - 4804 (1969); KANSAS, KAN. STAT.
ANN. 22 - 3722 (SUPP. 1973); MAINE, ME. REV. STAT. ANN., TIT. 21, 245
(1964); MASSACHUSETTS, MASS. GEN. LAWS ANN., C. 51, 1 (SUPP. 1974 -
1975) (EXCEPT ELECTION CODE OFFENDERS); MICHIGAN, MICH. CONST., ART.
II, 2, AND MICH. COMP. LAWS, ANN. 168.10 (1970); MINNESOTA, MINN, STAT.
609.165 (1971); NEBRASKA, NEB. REV. STAT. 29-2264 (SUPP. 1972) AND NEB.
REV. STAT. 83-1118 (1971); NEW HAMPSHIRE, N.H. REV. STAT. ANN. 607 -
A:2 (SUPP. 1973); NEW JERSEY, N. J. STAT. ANN. 19:4-1 (SUPP. 1974-1975)
(EXCEPT ELECTION CODE OFFENDERS); OHIO REV. CODE ANN. 2967.16 (SUPP.
1972); OREGON, ORE.  REV.  STAT. 137.240 AND 137.250 (1973);
PENNSYLVANIA, PA. CONST., ART. VII, 1, PA, STAT. ANN. TIT. 19, 893
(1964), AND TIT. 25, 3552 (1963) (EXCEPT ELECTION CODE OFFENDERS FOR
FOUR YEARS); SOUTH DAKOTA, S. D. COMP. LAWS ANN. 24-5-2 AND 23-57-7
(1969); UTAH, UTAH CONST., ART. IV, 6 (EXCEPT THOSE CONVICTED OF
TREASON OR ELECTION CODE OFFENSES); VERMONT, VT. CONST., C. II, 51
(EXCEPT ELECTION CODE OFFENDERS); WASHINGTON, WASH. REV. CODE ANN.
9.96.050 (SUPP. 1972); WEST VIRGINIA, 51 OP. W. VA. ATTY. GEN. NO. 42,
P. 182 (1965) (CONSTRUING W. VA. CONST., ART. IV, 1); WISCONSIN, WIS.
STAT. ANN. 57-078 (SUPP. 1974-1975); WYOMING, WYO. STAT. ANN. 7-311
(1957). 

IN 1972 MONTANA AMENDED ITS CONSTITUTION TO DISENFRANCHISE POTENTIAL
ELECTORS ONLY WHILE "SERVING A SENTENCE FOR A FELONY."  MONT. CONST.,
ART. IV, 2; MONT. REV. CODES ANN. 23 - 2701 (SUPP. 1973).  IN 1973, NEW
YORK AMENDED ITS LAWS TO ALLOW FORMER FELONS WHOSE SENTENCE HAD EXPIRED
OR WHO WERE RELEASED FROM PAROLE TO VOTE.  N.Y. ELECTION LAW 152 (SUPP.
1973 - 1974).  ALSO IN 1973, NORTH CAROLINA AMENDED ITS LAWS TO RESTORE
ALL CIVIL RIGHTS INCLUDING THE FRANCHISE TO FORMER FELONS DISCHARGED
FROM PRISON OR PAROLE.  N.C. GEN. STAT. 13 - 1 (SUPP. 1973).  AND, IN
THE SAME YEAR, THE TENNESSEE LEGISLATURE AMENDED ITS EX-FELON
DISENFRANCHISEMENT STATUTES.  SEE TENN. CODE ANN. 2 - 202 (SUPP.
1973). 

THE NEW YORK EX-FELON DISENFRANCHISEMENT PROVISION WAS UPHELD IN
GREEN V. BOARD OF ELECTIONS, 380 F.2D 445 (CA2 1967), AND SHORTLY
THEREAFTER THE NEW YORK LEGISLATURE REPEALED THAT LAW.  N.Y. ELECTION
LAW 152 (SUPP. 1973 - 1974).  SIMILARLY THE FLORIDA DISENFRANCHISEMENT
PROVISIONS WERE UPHELD IN BEACHAM V. BRATERMAN, 300 F.SUPP.  182 (SD
FLA.), AFF'D PER CURIAM, 396 U.S. 12 (1969).  SUBSEQUENTLY, FLORIDA
STATUTES WERE AMENDED TO PROVIDE FOR THE AUTOMATIC RESTORATION OF ALL
CIVIL RIGHTS, INCLUDING THE FRANCHISE, UPON THE COMPLETION OF SENTENCE
OR RELEASE FROM PAROLE OR PROBATION.  FLA. STAT. ANN. 940.05 (1973). 

/29/  NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS,
UNIFORM ACT ON STATUS OF CONVICTED PERSONS 2 - 3 (1964). 

/30/  AMERICAN LAW INSTITUTE, MODEL PENAL CODE 306.3 (PROPOSED
OFFICIAL DRAFT 1962). 

/31/  NATIONAL PROBATION AND PAROLE ASSOCIATION, STANDARD PROBATION
AND PAROLE ACT 12 AND 27 (1955). 

/32/  NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND
GOALS, CORRECTIONS, STANDARD 16.17, P. 592 (1973).  THE REPORT
OBSERVED: 

"LOSS OF CITIZENSHIP RIGHTS--(INCLUDING) THE RIGHT TO VOTE . . .-
INHIBITS REFORMATIVE EFFORTS.  IF CORRECTION IS TO REINTEGRATE AN
OFFENDER INTO FREE SOCIETY, THE OFFENDER MUST RETAIN ALL ATTRIBUTES OF
CITIZENSHIP.  IN ADDITION, HIS RESPECT FOR LAW AND THE LEGAL SYSTEM MAY
WELL DEPEND, IN SOME MEASURE, ON HIS ABILITY TO PARTICIPATE IN THAT
SYSTEM.  MANDATORY DENIALS OF THAT PARTICIPATION SERVE NO LEGITIMATE
PUBLIC INTEREST."  ID., AT 593. 

/33/  PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:  CORRECTIONS 89 - 90
(1967): 

"(THERE SEEMS NO JUSTIFICATION FOR PERMANENTLY DEPRIVING ALL
CONVICTED FELONS OF THE VOTE . . .  (TO BE DEPRIVED OF THE RIGHT TO
REPRESENTATION IN A DEMOCRATIC SOCIETY IS AN IMPORTANT SYMBOL. 
MOREOVER, REHABILITATION MIGHT BE FURTHERED BY ENCOURAGING CONVICTED
PERSONS TO PARTICIPATE IN SOCIETY BY EXERCISING THE VOTE." 

/34/  CALIFORNIA LEAGUE OF WOMEN VOTERS, POLICY STATEMENT, FEB. 16,
1972. 

/35/  NATIONAL DEMOCRATIC PARTY, PARTY PLATFORM 1972. 

/36/  MEMORANDUM OF THE SECRETARY OF STATE OF CALIFORNIA IN
OPPOSITION TO CERTIORARI IN CLASS OF COUNTY CLERKS AND REGISTRARS OF
VOTERS OF CALIFORNIA V. RAMIREZ, NO. 73 - 324. 

MR. JUSTICE DOUGLAS, AGREEING WITH PART I - A OF THIS OPINION,
DISSENTS FROM A REVERSAL OF THE JUDGMENT BELOW AS HE CANNOT SAY THAT IT
DOES NOT REST ON AN INDEPENDENT STATE GROUND.  SEE HAYAKAWA V. BROWN,
415 U.S. 1304 (DOUGLAS, J., IN CHAMBERS). 

DUNCAN M. JAMES ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

MARTIN R. GLICK ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE GENE LIVINGSTON AND BURTON D. FRETZ.  DANIEL HAYS LOWENSTEIN
FILED A BRIEF FOR RESPONDENTS BROWN, SECRETARY OF STATE OF CALIFORNIA. 
/1/ 

/1/  EVELLE J. YOUNGER, ATTORNEY GENERAL, IVER E. SKJEIE, ASSISTANT
ATTORNEY GENERAL, AND GEORGE J. ROTH, DEPUTY ATTORNEY GENERAL, FILED A
BRIEF FOR THE STATE OF CALIFORNIA AS AMICUS CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY CHESTERFIELD
SMITH AND DANIEL L. SKOLER FOR THE AMERICAN BAR ASSN., AND BY PHILIP L.
GOAR, A. L. WIRIN, AND FRED OKRAND FOR THE AMERICAN CIVIL LIBERTIES
UNION OF SOUTHERN CALIFORNIA. 
..END :



















HAMLING V. UNITED STATES, 418 U.S. 87 


       HAMLING ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 NINTH CIRCUIT

        NO. 73 - 507.  ARGUED APRIL 15, 1974--DECIDED JUNE 24,
1974;

           481 F.2D 307, AFFIRMED. 


    PETITIONERS WERE CONVICTED OF MAILING AND CONSPIRING TO MAIL AN

  OBSCENE ADVERTISING BROCHURE WITH SEXUALLY EXPLICIT PHOTOGRAPHIC

  MATERIAL RELATING TO THEIR ILLUSTRATED VERSION (HEREAFTER

  ILLUSTRATED REPORT) OF AN OFFICIAL REPORT ON OBSCENITY, IN

  VIOLATION OF 18 U.S.C. 2, 371, AND 1461.  THE INDICTMENT UNDER

  1461 CHARGED PETITIONERS IN THE LANGUAGE OF THE STATUTE, WHICH

  PROVIDES IN PERTINENT PART THAT OBSCENE MATERIAL AND WRITTEN

  INFORMATION AS TO WHERE IT MAY BE OBTAINED IS NONMAILABLE AND

  THAT "(WHOEVER KNOWINGLY USES THE MAILS FOR THE MAILING . . . OF

ANYTHING DECLARED BY THIS SECTION . . . TO BE NONMAILABLE . . . "

   COMMITS A CRIME.  THE JURY WAS UNABLE TO REACH A VERDICT ON THE

  COUNTS CHARGING THE MAILING OF THE ALLEGEDLY OBSCENE ILLUSTRATED

  REPORT.  FOLLOWING AFFIRMANCE OF THE CONVICTIONS BY THE COURT OF

  APPEALS, THIS COURT DECIDED MILLER V. CALIFORNIA, 413 U.S. 15,

  AND COMPANION CASES (HEREAFTER COLLECTIVELY THE MILLER CASES),

  AFTER CONSIDERING WHICH, THE COURT OF APPEALS DENIED A PETITION

  FOR REHEARING.  PETITIONERS CHALLENGE THEIR CONVICTIONS BASED

 UPON THE PRE-MILLER OBSCENITY TEST IN MEMOIRS V. MASSACHUSETTS,

  384 U.S. 413, AND ALSO AS FAILING TO MEET THE STANDARDS OF THE

  MILLER CASES; AND CHALLENGE VARIOUS PROCEDURAL AND EVIDENTIARY

  RULINGS OF THE DISTRICT COURT, AS WELL AS ITS INSTRUCTIONS. 

  HELD: 

     1.  TITLE 18 U.S.C. 1461, "APPLIED ACCORDING TO THE PROPER

  STANDARD FOR JUDGING OBSCENITY, DOES) NOT OFFEND CONSTITUTIONAL

  SAFEGUARDS AGAINST CONVICTIONS BASED UPON PROTECTED MATERIAL, OR

  FAIL TO GIVE MEN IN ACTING ADEQUATE NOTICE OF WHAT IS

PROHIBITED," ROTH V. UNITED STATES, 354 U.S. 476, 492.  PP. 98 -

  99. 

     2.  THE JURY'S DETERMINATION THAT THE BROCHURE WAS OBSCENE WAS

  SUPPORTED BY THE EVIDENCE AND WAS CONSISTENT WITH THE MEMOIRS

  OBSCENITY FORMULATION.  P. 100. 

     3.  THE INABILITY OF THE JURY TO REACH A VERDICT ON THE COUNTS

  CHARGING DISTRIBUTION OF THE ILLUSTRATED REPORT HAD NO RELEVANCE

  TO ITS FINDING THAT THE BROCHURE WAS OBSCENE, CONSISTENCY IN

  VERDICTS NOT BEING REQUIRED, AND THE BROCHURE BEING SEPARABLE

  FROM THE ILLUSTRATED REPORT.  PP. 100 - 101. 

     4.  THE STANDARDS ESTABLISHED IN THE MILLER CASES DO NOT, AS

  APPLIED TO PETITIONERS'  PRE-MILLER CONDUCT, REQUIRE A REVERSAL

  OF THEIR CONVICTIONS.  PP. 101 - 117. 

     (A) DEFENDANTS LIKE PETITIONERS, WHO WERE CONVICTED PRIOR TO

  THE DECISIONS IN THE MILLER CASES BUT WHOSE CONVICTIONS WERE ON

  DIRECT APPEAL AT THAT TIME, SHOULD RECEIVE ANY BENEFIT AVAILABLE

  TO THEM FROM THOSE DECISIONS.  PP. 101 - 102. 

     (B) THE INSTRUCTION TO THE JURY ON THE APPLICATION OF NATIONAL

  COMMUNITY STANDARDS OF OBSCENITY WAS NOT CONSTITUTIONALLY

IMPROPER, SINCE IN REJECTING THE VIEW THAT THE FIRST AND

FOURTEENTH AMENDMENTS REQUIRE THAT THE PROSCRIPTION OF OBSCENITY

  BE BASED ON UNIFORM NATIONAL STANDARDS, THE COURT IN THE MILLER

  CASES DID NOT REQUIRE AS A CONSTITUTIONAL MATTER THE SUBSTITUTION

  OF SOME SMALLER GEOGRAPHICAL AREA INTO THE SAME SORT OF FORMULA;

  THE TEST WAS STATED IN TERMS OF THE UNDERSTANDING OF THE "AVERAGE

  PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS."  THE COURT'S

  HOLDING IN MILLER THAT CALIFORNIA COULD CONSTITUTIONALLY

  PROSCRIBE OBSCENITY IN TERMS OF A "STATEWIDE" STANDARD DID NOT

MEAN THAT ANY SUCH PRECISE GEOGRAPHIC AREA IS REQUIRED AS A

  MATTER OF CONSTITUTIONAL LAW.  REVERSAL IS REQUIRED IN PRE-MILLER

  CASES ONLY WHERE THERE IS A PROBABILITY THAT THE EXCISION OF THE

  REFERENCES TO THE "NATION AS A WHOLE" IN THE INSTRUCTION DEALING

  WITH COMMUNITY STANDARDS WOULD HAVE MATERIALLY AFFECTED THE

  DELIBERATIONS OF THE JURY.  PP. 103 - 110. 

     (C) CONSTRUING 18 U.S.C. 1461 AS BEING LIMITED TO THE SORT OF

  "PATENTLY OFFENSIVE REPRESENTATIONS OR DESCRIPTIONS OF THAT

  SPECIFIC 'HARD CORE'  SEXUAL CONDUCT GIVEN AS EXAMPLES IN MILLER

  V. CALIFORNIA," THE STATUTE IS NOT UNCONSTITUTIONALLY VAGUE, IT

  BEING PLAIN THAT THE BROCHURE IS A FORM OF HARD-CORE PORNOGRAPHY

WELL WITHIN THE PERMISSIBLY PROSCRIBED DEPICTIONS DESCRIBED IN

  MILLER.  THE ENUMERATION OF SPECIFIC CATEGORIES OF OBSCENE

  MATERIAL IN MILLER DID NOT PURPORT TO PROSCRIBE, FOR PURPOSES OF

  18 U.S.C. 1461, CONDUCT THAT HAD NOT PREVIOUSLY BEEN THOUGHT

  CRIMINAL BUT INSTEAD ADDED A "CLARIFYING GLOSS" TO THE PRIOR

  CONSTRUCTION, MAKING THE STATUTE'S MEANING "MORE DEFINITE." 

  BOUIE V. CITY OF COLUMBIA.  378 U.S. 347, 353.  PP. 110 - 116. 

     (D) MILLER'S REJECTION OF MEMOIRS'"SOCIAL VALUE" FORMULATION

  DID NOT MEAN THAT 18 U.S.C. 1461 WAS UNCONSTITUTIONALLY VAGUE AT

  THE TIME OF PETITIONERS'  CONVICTIONS BECAUSE IT DID NOT PROVIDE

  THEM WITH SUFFICIENT GUIDANCE AS TO THE PROPER TEST OF "SOCIAL

  VALUE," THAT FORMULA HAVING BEEN REJECTED NOT FOR VAGUENESS

  REASONS BUT BECAUSE IT DEPARTED FROM ROTH'S OBSCENITY DEFINITION

  AND ENTAILED A VIRTUALLY IMPOSSIBLE PROSECUTION BURDEN.  PP. 116

  - 117. 

     5.  THE INDICTMENT WAS SUFFICIENTLY DEFINITE.  PP. 117 - 119. 

(A) THE LANGUAGE OF 1461 WAS NOT "TOO VAGUE TO SUPPORT

CONVICTION FOR CRIME," ROTH V. UNITED STATES, SUPRA, AT 480.  P.

  117. 

     (B) THE INDICTMENT GAVE PETITIONERS ADEQUATE NOTICE OF THE

  CHARGES AGAINST THEM, SINCE AT THE TIME PETITIONERS WERE INDICTED

  THE STATUTORY TERM "OBSCENE," A LEGAL TERM OF ART AND NOT A

  GENERIC EXPRESSION, HAD A DEFINITE LEGAL MEANING.  RUSSELL V.

  UNITED STATES, 369 U.S. 749, DISTINGUISHED.  PP. 117 - 119. 

     6.  THE DISTRICT COURT DID NOT ERR IN ITS INSTRUCTIONS TO THE

  JURY ON SCIENTER, INCLUDING ITS INSTRUCTION THAT "(PETITIONERS')

  BELIEF AS TO THE OBSCENITY OR NON-OBSCENITY OF THE MATERIAL IS

  IRRELEVANT," IT BEING CONSTITUTIONALLY SUFFICIENT THAT THE

  PROSECUTION SHOW THAT A DEFENDANT HAD KNOWLEDGE OF THE CONTENTS

  OF MATERIALS THAT HE DISTRIBUTES, AND THAT HE KNEW THE CHARACTER

  AND NATURE OF THE MATERIALS.  ROSEN V. UNITED STATES, 161 U.S.

  29, FOLLOWED; SMITH V. CALIFORNIA, 361 U.S. 147, DISTINGUISHED. 

  PP. 119 - 124. 

     7.  THE COURT OF APPEALS CORRECTLY CONCLUDED THAT THERE WAS

  SUBSTANTIAL EVIDENCE TO SUPPORT THE JURY'S VERDICT.  P. 124. 

     8.  THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

  EXCLUDING ALLEGEDLY COMPARABLE MATERIALS (MATERIALS WITH

  SECOND-CLASS MAILING PRIVILEGES, OR JUDICIALLY FOUND TO HAVE BEEN

  NONOBSCENE, OR AVAILABLE ON NEWSSTANDS), SINCE, INTER ALIA,

  EXPERT TESTIMONY HAD BEEN ALLOWED ON RELEVANT COMMUNITY

  STANDARDS; AND SIMILAR MATERIALS OR JUDICIAL DETERMINATIONS WITH

  RESPECT THERETO DO NOT NECESSARILY PROVE NONOBSCENITY OF THE

  MATERIALS THE ACCUSED IS CHARGED WITH CIRCULATING; AND WITH

  RESPECT TO WHETHER PROFFERED EVIDENCE IS CUMULATIVE, CLEARLY

RELEVANT, OR CONFUSING, THE TRIAL COURT HAS CONSIDERABLE

LATITUDE.  PP. 125 - 127. 

     9.  THE DISTRICT COURT'S INSTRUCTION THAT IN DECIDING WHETHER

  THE PREDOMINANT APPEAL OF THE BROCHURE WAS TO A PRURIENT INTEREST

  IN SEX THE JURY COULD CONSIDER WHETHER SOME PORTIONS APPEALED TO

A SPECIFICALLY DEFINED DEVIANT GROUP AS WELL AS TO THE AVERAGE

  PERSON WAS NOT ERRONEOUS, SINCE IN MEASURING PRURIENT APPEAL, THE

  JURY (WHICH WAS INSTRUCTED THAT IT MUST FIND THAT THE MATERIAL AS

  A WHOLE APPEALED GENERALLY TO A PRURIENT INTEREST IN SEX) MAY

  CONSIDER THE MATERIAL'S PRURIENT APPEAL TO CLEARLY DEFINED

  DEVIANT SEXUAL GROUPS.  MISHKIN V. NEW YORK, 383 U.S. 502, 508 -

  509.  PP. 127 - 130. 

     10.  SINCE EVIDENCE OF PANDERING CAN BE RELEVANT IN
DETERMINING

  OBSCENITY, AS LONG AS THE PROPER CONSTITUTIONAL DEFINITION OF

  OBSCENITY IS APPLIED, GINZBURG V. UNITED STATES, 383 U.S. 463, IT

  WAS NOT IMPROPER FOR THE DISTRICT COURT TO INSTRUCT THE JURY IN

  CONNECTION WITH THE MEMOIRS TEST THAT IT COULD ALSO CONSIDER

  WHETHER THE BROCHURE HAD BEEN PANDERED BY LOOKING TO THE MANNER

  OF ITS DISTRIBUTION AND EDITORIAL INTENT.  PP. 130 - 131. 

11.  THE COURT OF APPEALS DID NOT ERR IN REFUSING TO REVERSE

  PETITIONERS'  CONVICTIONS FOR THE DISTRICT COURT'S FAILURE TO

  COMPLY WITH FED. RULE CRIM. PROC. 30 BY DENYING PETITIONERS'

  COUNSEL'S REQUEST TO MAKE ADDITIONAL OBJECTIONS TO THE

  INSTRUCTIONS OUT OF THE PRESENCE OF THE JURY, SINCE THIS COURT'S

  INDEPENDENT EXAMINATION OF THE RECORD CONFIRMS THE COURT OF

  APPEALS' VIEW THAT PETITIONERS WERE NOT PREJUDICED THEREBY.  PP.

  131 - 135. 

     12.  PETITIONERS' ARGUMENT THAT THE DISTRICT COURT ABUSED ITS

  DISCRETION IN REFUSING TO GRANT A CONTINUANCE UNTIL A NEW JURY

  WITH A PRESUMABLY GREATER RATIO OF YOUNG PEOPLE COULD BE

  DRAWN--IT HAVING BEEN ALMOST FOUR YEARS SINCE THE JURY WHEEL HAD

  LAST BEEN FILLED--IS WITHOUT MERIT, SINCE THERE WAS NO SHOWING OF

  A DISCRIMINATORY EXCLUSION OF AN IDENTIFIABLE GROUP ENTITLED TO A

  GROUP-BASED PROTECTION.  PP. 135 - 138. 

      13.  THE DISTRICT COURT'S VOIR DIRE EXAMINATION WAS
SUFFICIENT

  TO TEST THE QUALIFICATIONS AND COMPETENCY OF THE PROSPECTIVE

  JURORS AND COMPLIED WITH FED. RULE CRIM. PROC. 24(A), AND THAT

  COURT DID NOT CONSTITUTIONALLY ERR IN NOT ASKING CERTAIN

  QUESTIONS PROPOUNDED BY PETITIONERS.  PP. 138 - 140. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, POST, P. 140.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH STEWART AND MARSHALL, JJ., JOINED, POST,
P. 141.     MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

ON MARCH 5, 1971, A GRAND JURY IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA INDICTED PETITIONERS WILLIAM L.
HAMLING, EARL KEMP, SHIRLEY R. WRIGHT, DAVID L. THOMAS, REED
ENTERPRISES, INC., AND LIBRARY SERVICE, INC., ON 21 COUNTS OF AN
INDICTMENT CHARGING USE OF THE MAILS TO CARRY AN OBSCENE BOOK, THE
ILLUSTRATED PRESIDENTIAL REPORT OF THE COMMISSION ON OBSCENITY AND
PORNOGRAPHY, AND AN OBSCENE ADVERTISEMENT, WHICH GAVE INFORMATION AS TO
WHERE, HOW, AND FROM WHOM AND BY WHAT MEANS THE ILLUSTRATED REPORT
MIGHT BE OBTAINED, AND OF CONSPIRACY TO COMMIT THE ABOVE OFFENSES, IN
VIOLATION OF 18 U.S.C. 2, 371, AND 1461.  /1/  PRIOR TO TRIAL,
PETITIONERS MOVED TO DISMISS THE INDICTMENT ON THE GROUNDS THAT IT
FAILED TO INFORM THEM OF THE CHARGES, AND THAT THE GRAND JURY HAD
INSUFFICIENT EVIDENCE BEFORE IT TO RETURN AN INDICTMENT AND WAS
IMPROPERLY INSTRUCTED ON THE LAW.  PETITIONERS ALSO CHALLENGED THE
PETIT JURY PANEL AND MOVED TO STRIKE THE VENIRE ON THE GROUND THAT
THERE HAD BEEN AN UNCONSTITUTIONAL EXCLUSION OF ALL PERSONS UNDER 25
YEARS OF AGE.  THE DISTRICT COURT DENIED ALL OF THESE MOTIONS. 

FOLLOWING A JURY TRIAL, PETITIONERS WERE CONVICTED ON 12 COUNTS OF
MAILING AND CONSPIRING TO MAIL THE OBSCENE ADVERTISEMENT.  /2/  ON
APPEAL, THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMED.  481 F.2D 307 (1973).  THE JURY WAS UNABLE TO REACH A VERDICT
WITH REGARD TO THE COUNTS OF THE INDICTMENT WHICH CHARGED THE MAILING
OF THE ALLEGEDLY OBSCENE ILLUSTRATED REPORT.  /3/  THE ADVERTISEMENT
FOUND OBSCENE IS A SINGLE SHEET BROCHURE MAILED TO APPROXIMATELY 55,000
PERSONS IN VARIOUS PARTS OF THE UNITED STATES; ONE SIDE OF THE BROCHURE
CONTAINS A COLLAGE OF PHOTOGRAPHS FROM THE ILLUSTRATED REPORT; THE
OTHER SIDE GIVES CERTAIN INFORMATION AND AN ORDER BLANK FROM WHICH THE
ILLUSTRATED REPORT COULD BE ORDERED. 

THE COURT OF APPEALS ACCURATELY DESCRIBED THE PHOTOGRAPHS IN THE
BROCHURE AS FOLLOWS: 

     "THE FOLDER OPENS TO A FULL PAGE SPLASH OF PICTURES PORTRAYING

  HETEROSEXUAL AND HOMOSEXUAL INTERCOURSE, SODOMY AND A VARIETY OF

  DEVICE SEXUAL ACTS.  SPECIFICALLY, A GROUP PICTURE OF NINE

  PERSONS, ONE MALE ENGAGED IN MASTURBATION, A FEMALE MASTURBATING

  TWO MALES, TWO COUPLES ENGAGED IN INTERCOURSE IN REVERSE FASHION

  WHILE ONE FEMALE PARTICIPANT ENGAGES IN FELLATIO OF A MALE; A

SECOND GROUP PICTURE OF SIX PERSONS, TWO MALES MASTURBATING, TWO

  FELLATRICES PRACTICING THE ACT, EACH BEARING A CLEAR DEPICTION OF

  EJACULATED SEMINAL FLUID ON THEIR FACES; TWO PERSONS WITH THE

  FEMALE ENGAGED IN THE ACT OF FELLATIO AND THE MALE IN FEMALE

  MASTURBATION BY HAND; TWO SEPARATE PICTURES OF MALES ENGAGED IN

  CUNNILINCTION; A FILM STRIP OF SIX FRAMES DEPICTING LESBIAN LOVE

  SCENES INCLUDING A CUNNILINGUIST IN ACTION AND FEMALE

  MASTURBATION WITH ANOTHER'S HAND AND A VIBRATOR, AND TWO FRAMES,

  ONE DEPICTING A WOMAN MOUTHING THE PENIS OF A HORSE, AND A SECOND

POISING THE SAME FOR ENTRANCE INTO HER VAGINA."  481 F.2D,AT 316

  - 317.  /4/ 

THE REVERSE SIDE OF THE BROCHURE CONTAINS A FACSIMILE OF THE
ILLUSTRATED REPORT'S COVER, AND AN ORDER FORM FOR THE ILLUSTRATED
REPORT.  IT ALSO CONTAINS THE FOLLOWING LANGUAGE: 

     "THANKS A LOT, MR. PRESIDENT.  A MONUMENTAL WORK OF RESEARCH

  AND INVESTIGATION HAS NOW BECOME A GIANT OF A BOOK.  ALL THE

  FACTS, ALL THE STATISTICS, PRESENTED IN THE BEST POSSIBLE FORMAT

  . . . AND . . . COMPLETELY ILLUSTRATED IN BLACK AND WHITE AND

  FULL COLOR.  EVERY FACET OF THE MOST CONTROVERSIAL PUBLIC REPORT

  EVER ISSUED IS COVERED IN DETAIL. 

     "THE BOOK IS A MUST FOR THE RESEARCH SHELVES OF EVERY LIBRARY,

  PUBLIC OR PRIVATE, SERIOUSLY CONCERNED WITH FULL INTELLECTUAL

  FREEDOM AND ADULT SELECTION. 

     "MILLIONS OF DOLLARS IN PUBLIC FUNDS WERE EXPENDED TO
DETERMINE

  THE PRECISE TRUTH ABOUT EROTISCISM IN THE UNITED STATES TODAY,

  YET EVERY POSSIBLE ATTEMPT TO SUPPRESS THIS INFORMATION WAS MADE

  FROM THE VERY HIGHEST LEVELS. 

     "EVEN THE PRESIDENT DISMISSED THE FACTS, OUT OF HAND.  THE

  ATTEMPT TO SUPPRESS THIS VOLUME IS AN INEXCUSABLE INSULT DIRECTED

  AT EVERY ADULT IN THIS COUNTRY.  EACH INDIVIDUAL MUST BE ALLOWED

  TO MAKE HIS OWN DECISION; THE FACTS ARE INESCAPABLE.  MANY

  ADULTS, MANY OF THEM, WILL DO JUST THAT AFTER READING THIS

  REPORT.  IN A TRULY FREE SOCIETY, A BOOK LIKE THIS WOULDN'T EVEN

  BE NECESSARY." 

THE COURT OF APPEALS INDICATED THAT THE ACTUAL REPORT OF THE
COMMISSION ON OBSCENITY AND PORNOGRAPHY IS AN OFFICIAL GOVERNMENT
DOCUMENT PRINTED BY THE UNITED STATES GOVERNMENT PRINTING OFFICE.  THE
MAJOR DIFFERENCE BETWEEN THE ILLUSTRATED REPORT, CHARGED TO BE OBSCENE
IN THE INDICTMENT, AND THE ACTUAL REPORT IS THAT THE ILLUSTRATED REPORT
CONTAINED ILLUSTRATIONS, WHICH THE PUBLISHERS OF THE ILLUSTRATED REPORT
SAID WERE INCLUDED "'AS EXAMPLES OF THE TYPE OF SUBJECT MATTER
DISCUSSED AND THE TYPE OF MATERIAL SHOWN TO PERSONS WHO WERE PART OF
THE RESEARCH PROJECTS ENGAGED IN FOR THE COMMISSION AS BASIS FOR THEIR
REPORT.'"  481 F.2D,AT 315. 

THE FACTS ADDUCED AT TRIAL SHOWED THAT POSTAL PATRONS IN VARIOUS
PARTS OF THE COUNTRY RECEIVED THE BROCHURE ADVERTISING THE ILLUSTRATED
REPORT.  THE MAILINGS THESE PERSONS RECEIVED CONSISTED OF AN OUTER
ENVELOPE, AN INNER RETURN ENVELOPE ADDRESSED TO LIBRARY SERVICE, INC.,
AT A POST OFFICE BOX IN SAN DIEGO, CALIFORNIA, AND THE BROCHURE ITSELF,
WHICH ALSO IDENTIFIED LIBRARY SERVICE, INC., AT THE SAME ADDRESS, AS
THE PARTY RESPONSIBLE FOR THE MAILING.  THE OUTER ENVELOPES BORE A
POSTMARK THAT INDICATED THEY WERE MAILED FROM NORTH HOLLYWOOD,
CALIFORNIA, ON OR ABOUT JANUARY 12, 1971, AND THAT THE POSTAGE WAS
AFFIXED TO THE ENVELOPES BY A PITNEY-BOWES METER NUMBER. 

THE MAILING OF THESE BROCHURES WAS ACCOMPLISHED BY PETITIONERS
THROUGH THE USE OF OTHER BUSINESSES.  APPROXIMATELY 55,000 - 58,000 OF
THESE BROCHURES WERE PLACED IN ENVELOPES, AND POSTAGE WAS AFFIXED TO
THEM BY ONE RICHARD AND ONE VENITA HARTE, WHO OPERATE THE ACADEMY
ADDRESSING AND MAILING SERVICE.  THE BROCHURES AND THE PITNEY-BOWES
METER NUMBER, WITH WHICH THEY AFFIXED THE POSTAGE, WERE SUPPLIED TO
THEM BY ONE BERNARD LIEBERMAN OF REGENT HOUSE, INC., OF NORTH
HOLLYWOOD, CALIFORNIA, WHO, ON JANUARY 11, 1971, HAD PAID THE UNITED
STATES POSTAL SERVICE TO SET $3,300 WORTH OF POSTAGE ON THE METER
NUMBER.  REGENT HOUSE WAS BILLED $541.15 BY THE HARTES FOR THEIR
SERVICES.  REGENT HOUSE IN TURN CHARGED ITS SERVICES AND COSTS FOR THE
POSTAGE AND THE HARTE'S MAILING SERVICE TO REED ENTERPRISES, INC.,
WHICH PAID THE BILL ON JANUARY 19, 1971, WITH A CHECK SIGNED BY
PETITIONER HAMLING. 

THOSE INDIVIDUALS RESPONDING TO THE BROCHURE WOULD BE SENT COPIES OF
THE ILLUSTRATED REPORT, WHICH WOULD BE MAILED WITH POSTAGE AFFIXED BY A
SECOND PITNEY-BOWES METER NUMBER WHICH WAS INSTALLED AT LIBRARY
SERVICE, INC., AT THE DIRECTION OF AN EMPLOYEE OF PITNEY-BOWES.  THE
RENTAL AGREEMENT FOR THIS METER WAS SIGNED FOR LIBRARY SERVICE BY
PETITIONER DAVID THOMAS, WHOM THAT EMPLOYEE IDENTIFIED AS THE PERSON
WITH WHOM HE HAD DEALT ON THE MATTER. 

THE EVIDENCE INDICATED THAT THE INDIVIDUAL PETITIONERS WERE OFFICERS
IN THE CORPORATE PETITIONERS, AND ALSO INDICATED THAT THEY WERE
INVOLVED WITH SELLING THE ILLUSTRATED REPORT, WHICH ENTAILED MAILING
OUT THE ADVERTISING BROCHURE.  PETITIONER HAMLING, AS PRESIDENT OF REED
ENTERPRISES, INC., SIGNED THE CHECK ON THE CORPORATION'S BEHALF IN
PAYMENT TO REGENT HOUSE FOR THE MAILING OF THE ADVERTISEMENT. 
PETITIONER KEMP WAS THE EDITOR OF THE ILLUSTRATED REPORT, AND WAS VICE
PRESIDENT OF LIBRARY SERVICE, INC., AND GREENLEAF CLASSICS, INC., WHICH
IS THE PUBLISHER OF THE ILLUSTRATED REPORT.  /5/  HE SIGNED THE
APPLICATION ON BEHALF OF LIBRARY SERVICE, INC., FOR THE POST OFFICE BOX
IN SAN DIEGO, WHICH WAS THE SAME POST OFFICE BOX ON THE RETURN ENVELOPE
SENT WITH THE ADVERTISEMENT AND ON THE ADVERTISEMENT ITSELF. 
PETITIONER THOMAS SIGNED THE RENTAL AGREEMENT FOR THE LATTER POSTAGE
METER WHICH WAS USED IN AFFIXING POSTAGE FOR SENDING COPIES OF THE
ILLUSTRATED REPORT, AND WHICH THOMAS DIRECTED TO BE INSTALLED AT
LIBRARY SERVICE. 

PETITIONER WRIGHT WAS THE SECRETARY OF REED ENTERPRISES, INC., AND
GREENLEAF CLASSICS, INC.  WRIGHT ASSISTED THE POSTAL SUPERINTENDENT IN
OBTAINING KEMP'S SIGNATURE ON THE APPLICATION FOR THE POST OFFICE BOX
IN SAN DIEGO.  WRIGHT ALSO RECEIVED A MEMORANDUM FROM LONDON PRESS,
INC., THE PRINTER OF THE ILLUSTRATED REPORT, ADDRESSED TO HER AS
REPRESENTATIVE OF REED ENTERPRISES, INC., CONFIRMING THE SHIPMENT OF
28,537 COPIES OF THE ILLUSTRATED REPORT.  VARIOUS OTHER CORPORATE
DOCUMENTS TENDED TO SHOW THE INDIVIDUAL PETITIONERS' INVOLVEMENT WITH
THE CORPORATE PETITIONERS.  BOTH THE GOVERNMENT AND THE PETITIONERS
INTRODUCED TESTIMONY FROM VARIOUS EXPERT WITNESSES CONCERNING THE
OBSCENITY VEL NON OF BOTH THE ILLUSTRATED REPORT AND THE BROCHURE. 

IN AFFIRMING THE CONVICTIONS OF THESE PETITIONERS FOR THE
DISTRIBUTION OF THE OBSCENE BROCHURE, THE COURT OF APPEALS REJECTED
VARIOUS CONTENTIONS MADE BY THE PETITIONERS.  THE COURT OF APPEALS ALSO
REJECTED PETITIONERS' PETITION FOR REHEARING AND SUGGESTION FOR
REHEARING EN BANC.  WE GRANTED CERTIORARI, 414 U.S. 1143 (1974), AND
NOW AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

        I 

THESE PETITIONERS WERE CONVICTED BY A JURY ON DECEMBER 23, 1971. 
APP. 9.  THE COURT OF APPEALS AFFIRMED THEIR CONVICTIONS IN AN OPINION
FILED ON JUNE 7, 1973.  THE COURT OF APPEALS ORIGINALLY DENIED
REHEARING AND SUGGESTION FOR REHEARING EN BANC ON JULY 9, 1973.  THAT
ORDER WAS WITHDRAWN BY THE COURT OF APPEALS TO BE RECONSIDERED IN LIGHT
OF THIS COURT'S DECISIONS, ANNOUNCED JUNE 21, 1973, IN MILLER V.
CALIFORNIA, 413 U.S. 15, AND RELATED CASES, /6/  AND WAS SUBMITTED TO
THE EN BANC COURT, BY ORDER DATED AUGUST 20, 1973.  /7/  ON AUGUST 22,
1973, THE COURT OF APPEALS ENTERED AN ORDER DENYING THE PETITION FOR
REHEARING AND THE SUGGESTION FOR REHEARING EN BANC. 

THE PRINCIPAL QUESTION PRESENTED BY THIS CASE IS WHAT RULES OF LAW
SHALL GOVERN OBSCENITY CONVICTIONS THAT OCCURRED PRIOR TO THE DATE ON
WHICH THIS COURT'S DECISION IN MILLER V. CALIFORNIA, SUPRA, AND ITS
COMPANION CASES WERE HANDED DOWN, BUT WHICH HAD NOT AT THAT POINT
BECOME FINAL.  PETITIONERS MOUNT A SERIES OF CHALLENGES TO THEIR
CONVICTIONS BASED UPON THE SO-CALLED MEMOIRS TEST FOR THE PROSCRIPTION
OF OBSCENITY.  (MEMOIRS V. MASSACHUSETTS, 383 U.S. 413 (1966).)  THEY
ALSO ATTACK THE JUDGMENTS AS FAILING TO COMPLY WITH THE STANDARDS
ENUNCIATED IN THE MILLER CASES, AND CONCLUDE BY CHALLENGING OTHER
PROCEDURAL AND EVIDENTIARY RULINGS OF THE DISTRICT COURT. 

QUESTIONS AS TO THE CONSTITUTIONALITY OF 18 U.S.C. 1461, /8/  THE
PRIMARY STATUTE UNDER WHICH PETITIONERS WERE CONVICTED WERE NOT
STRANGERS TO THIS COURT PRIOR TO THE MILLER DECISION.  IN ROTH V.
UNITED STATES, 354 U.S. 476 (1957), THE COURT HELD THAT THIS STATUTE
DID NOT OFFEND THE FREE SPEECH AND FREE PRESS GUARANTEES OF THE FIRST
AMENDMENT, AND THAT IT DID NOT DENY THE DUE PROCESS GUARANTEED BY THE
FIFTH AMENDMENT BECAUSE IT WAS "TOO VAGUE TO SUPPORT CONVICTION FOR
CRIME."  ID., AT 480.  THAT HOLDING WAS REAFFIRMED IN UNITED STATES V.
REIDEL, 402 U.S. 351 (1971).  SEE ALSO MANUAL ENTERPRISES, INC. V. DAY,
370 U.S. 478 (1962); GINZBURG V. UNITED STATES, 383 U.S. 463 (1966). 
PRIOR TO MILLER, THEREFORE, THIS COURT HAD HELD THAT 18 U.S.C. 1461,
"APPLIED ACCORDING TO THE PROPER STANDARD FOR JUDGING OBSCENITY, DOES)
NOT OFFEND CONSTITUTIONAL SAFEGUARDS AGAINST CONVICTIONS BASED UPON
PROTECTED MATERIAL, OR FAIL TO GIVE MEN IN ACTING ADEQUATE NOTICE OF
WHAT IS PROHIBITED."  ROTH V. UNITED STATES, SUPRA, AT 492. 

THESE PETITIONERS WERE TRIED AND CONVICTED UNDER THE DEFINITION OF
OBSCENITY ORIGINALLY ANNOUNCED BY THE COURT IN ROTH V. UNITED STATES,
SUPRA, AND SIGNIFICANTLY REFINED BY THE PLURALITY OPINION IN MEMOIRS V.
MASSACHUSETTS, SUPRA.  THE MEMOIRS PLURALITY HELD THAT UNDER THE ROTH
DEFINITION 

"AS ELABORATED IN SUBSEQUENT CASES, THREE ELEMENTS MUST COALESCE:
IT MUST BE ESTABLISHED THAT (A) THE DOMINANT THEME OF THE MATERIAL
TAKEN AS A WHOLE APPEALS TO A PRURIENT INTEREST IN SEX; (B) THE
MATERIAL IS PATENTLY OFFENSIVE BECAUSE IT AFFRONTS CONTEMPORARY
COMMUNITY STANDARDS RELATING TO THE DESCRIPTION OR REPRESENTATION OF
SEXUAL MATTERS; AND (C) THE MATERIAL IS UTTERLY WITHOUT REDEEMING
SOCIAL VALUE."  ID., AT 418. 

PETITIONERS MAKE NO CONTENTION THAT THE INSTRUCTIONS GIVEN BY THE
DISTRICT COURT IN THIS CASE WERE INCONSISTENT WITH THE TEST OF THE
MEMOIRS PLURALITY.  THEY ARGUE INSTEAD THAT THE OBSCENITY VEL NON OF
THE BROCHURE HAS NOT BEEN ESTABLISHED UNDER THE MEMOIRS TEST.  THE
COURT OF APPEALS RULED AGAINST PETITIONERS ON THIS SCORE, CONCLUDING
THAT THE JURY'S FINDING THAT THE BROCHURE WAS OBSCENE UNDER THE MEMOIRS
PLURALITY TEST WAS CORRECT.  PETITIONERS ARGUE AT LENGTH THAT THEIR
EXPERT WITNESSES ESTABLISHED THAT THE BROCHURE DID NOT APPEAL TO A
PRURIENT INTEREST IN SEX, THAT IT WAS NOT PATENTLY OFFENSIVE, AND THAT
IT HAD SOCIAL VALUE.  EXAMINING THE RECORD BELOW, WE FIND THAT THE JURY
COULD CONSTITUTIONALLY FIND THE BROCHURE OBSCENE UNDER THE MEMOIRS
TEST.  EXPERT TESTIMONY IS NOT NECESSARY TO ENABLE THE JURY TO JUDGE
THE OBSCENITY OF MATERIAL WHICH, AS HERE, HAS BEEN PLACED INTO
EVIDENCE.  SEE PARIS ADULT THEATRE I V. SLATON, 413 U.S. 49, 56 (1973);
KAPLAN V. CALIFORNIA, 413 U.S. 115, 120 - 121 (1973); GINZBURG V.
UNITED STATES, SUPRA, AT 465.  IN THIS CASE, BOTH THE GOVERNMENT AND
THE PETITIONERS INTRODUCED TESTIMONY THROUGH EXPERT WITNESSES
CONCERNING THE ALLEGED OBSCENITY OF THE BROCHURE.  THE JURY WAS NOT
BOUND TO ACCEPT THE OPINION OF ANY EXPERT IN WEIGHING THE EVIDENCE OF
OBSCENITY, AND WE CONCLUDE THAT ITS DETERMINATION THAT THE BROCHURE WAS
OBSCENE WAS SUPPORTED BY THE EVIDENCE AND CONSISTENT WITH THE MEMOIRS
FORMULATION OF OBSCENITY. 

    13.  THE DISTRICT COURT'S VOIR DIRE EXAMINATION WAS SUFFICIENT

  TO TEST THE QUALIFICATIONS AND COMPETENCY OF THE PROSPECTIVE

  JURORS AND COMPLIED WITH FED. RULE CRIM. PROC. 24(A), AND THAT

  COURT DID NOT CONSTITUTIONALLY ERR IN NOT ASKING CERTAIN

  QUESTIONS PROPOUNDED BY PETITIONERS.  PP. 138 - 140. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, POST, P. 140.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH STEWART AND MARSHALL, JJ., JOINED, POST,
P. 141. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

ON MARCH 5, 1971, A GRAND JURY IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA INDICTED PETITIONERS WILLIAM L.
HAMLING, EARL KEMP, SHIRLEY R. WRIGHT, DAVID L. THOMAS, REED
ENTERPRISES, INC., AND LIBRARY SERVICE, INC., ON 21 COUNTS OF AN
INDICTMENT CHARGING USE OF THE MAILS TO CARRY AN OBSCENE BOOK, THE
ILLUSTRATED PRESIDENTIAL REPORT OF THE COMMISSION ON OBSCENITY AND
PORNOGRAPHY, AND AN OBSCENE ADVERTISEMENT, WHICH GAVE INFORMATION AS TO
WHERE, HOW, AND FROM WHOM AND BY WHAT MEANS THE ILLUSTRATED REPORT
MIGHT BE OBTAINED, AND OF CONSPIRACY TO COMMIT THE ABOVE OFFENSES, IN
VIOLATION OF 18 U.S.C. 2, 371, AND 1461.  /1/  PRIOR TO TRIAL,
PETITIONERS MOVED TO DISMISS THE INDICTMENT ON THE GROUNDS THAT IT
FAILED TO INFORM THEM OF THE CHARGES, AND THAT THE GRAND JURY HAD
INSUFFICIENT EVIDENCE BEFORE IT TO RETURN AN INDICTMENT AND WAS
IMPROPERLY INSTRUCTED ON THE LAW.  PETITIONERS ALSO CHALLENGED THE
PETIT JURY PANEL AND MOVED TO STRIKE THE VENIRE ON THE GROUND THAT
THERE HAD BEEN AN UNCONSTITUTIONAL EXCLUSION OF ALL PERSONS UNDER 25
YEARS OF AGE.  THE DISTRICT COURT DENIED ALL OF THESE MOTIONS. 

FOLLOWING A JURY TRIAL, PETITIONERS WERE CONVICTED ON 12 COUNTS OF
MAILING AND CONSPIRING TO MAIL THE OBSCENE ADVERTISEMENT.  /2/  ON
APPEAL, THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMED.  481 F.2D 307 (1973).  THE JURY WAS UNABLE TO REACH A VERDICT
WITH REGARD TO THE COUNTS OF THE INDICTMENT WHICH CHARGED THE MAILING
OF THE ALLEGEDLY OBSCENE ILLUSTRATED REPORT.  /3/  THE ADVERTISEMENT
FOUND OBSCENE IS A SINGLE SHEET BROCHURE MAILED TO APPROXIMATELY 55,000
PERSONS IN VARIOUS PARTS OF THE UNITED STATES; ONE SIDE OF THE BROCHURE
CONTAINS A COLLAGE OF PHOTOGRAPHS FROM THE ILLUSTRATED REPORT; THE
OTHER SIDE GIVES CERTAIN INFORMATION AND AN ORDER BLANK FROM WHICH THE
ILLUSTRATED REPORT COULD BE ORDERED. 

THE COURT OF APPEALS ACCURATELY DESCRIBED THE PHOTOGRAPHS IN THE
BROCHURE AS FOLLOWS: 

     "THE FOLDER OPENS TO A FULL PAGE SPLASH OF PICTURES PORTRAYING

  HETEROSEXUAL AND HOMOSEXUAL INTERCOURSE, SODOMY AND A VARIETY OF

  DEVICE SEXUAL ACTS.  SPECIFICALLY, A GROUP PICTURE OF NINE

  PERSONS, ONE MALE ENGAGED IN MASTURBATION, A FEMALE MASTURBATING

  TWO MALES, TWO COUPLES ENGAGED IN INTERCOURSE IN REVERSE FASHION

  WHILE ONE FEMALE PARTICIPANT ENGAGES IN FELLATIO OF A MALE; A

SECOND GROUP PICTURE OF SIX PERSONS, TWO MALES MASTURBATING, TWO

  FELLATRICES PRACTICING THE ACT, EACH BEARING A CLEAR DEPICTION OF

  EJACULATED SEMINAL FLUID ON THEIR FACES; TWO PERSONS WITH THE

  FEMALE ENGAGED IN THE ACT OF FELLATIO AND THE MALE IN FEMALE

  MASTURBATION BY HAND; TWO SEPARATE PICTURES OF MALES ENGAGED IN

  CUNNILINCTION; A FILM STRIP OF SIX FRAMES DEPICTING LESBIAN LOVE

  SCENES INCLUDING A CUNNILINGUIST IN ACTION AND FEMALE

  MASTURBATION WITH ANOTHER'S HAND AND A VIBRATOR, AND TWO FRAMES,

  ONE DEPICTING A WOMAN MOUTHING THE PENIS OF A HORSE, AND A SECOND

POISING THE SAME FOR ENTRANCE INTO HER VAGINA."  481 F.2D,AT 316

  - 317.  /4/ 

THE REVERSE SIDE OF THE BROCHURE CONTAINS A FACSIMILE OF THE
ILLUSTRATED REPORT'S COVER, AND AN ORDER FORM FOR THE ILLUSTRATED
REPORT.  IT ALSO CONTAINS THE FOLLOWING LANGUAGE: 

     "THANKS A LOT, MR. PRESIDENT.  A MONUMENTAL WORK OF RESEARCH

  AND INVESTIGATION HAS NOW BECOME A GIANT OF A BOOK.  ALL THE

  FACTS, ALL THE STATISTICS, PRESENTED IN THE BEST POSSIBLE FORMAT

  . . . AND . . . COMPLETELY ILLUSTRATED IN BLACK AND WHITE AND

  FULL COLOR.  EVERY FACET OF THE MOST CONTROVERSIAL PUBLIC REPORT

  EVER ISSUED IS COVERED IN DETAIL. 

     "THE BOOK IS A MUST FOR THE RESEARCH SHELVES OF EVERY LIBRARY,

  PUBLIC OR PRIVATE, SERIOUSLY CONCERNED WITH FULL INTELLECTUAL

  FREEDOM AND ADULT SELECTION. 

     "MILLIONS OF DOLLARS IN PUBLIC FUNDS WERE EXPENDED TO
DETERMINE

  THE PRECISE TRUTH ABOUT EROTISCISM IN THE UNITED STATES TODAY,

  YET EVERY POSSIBLE ATTEMPT TO SUPPRESS THIS INFORMATION WAS MADE

  FROM THE VERY HIGHEST LEVELS. 

     "EVEN THE PRESIDENT DISMISSED THE FACTS, OUT OF HAND.  THE

  ATTEMPT TO SUPPRESS THIS VOLUME IS AN INEXCUSABLE INSULT DIRECTED

  AT EVERY ADULT IN THIS COUNTRY.  EACH INDIVIDUAL MUST BE ALLOWED

  TO MAKE HIS OWN DECISION; THE FACTS ARE INESCAPABLE.  MANY

  ADULTS, MANY OF THEM, WILL DO JUST THAT AFTER READING THIS

  REPORT.  IN A TRULY FREE SOCIETY, A BOOK LIKE THIS WOULDN'T EVEN

  BE NECESSARY." 

THE COURT OF APPEALS INDICATED THAT THE ACTUAL REPORT OF THE
COMMISSION ON OBSCENITY AND PORNOGRAPHY IS AN OFFICIAL GOVERNMENT
DOCUMENT PRINTED BY THE UNITED STATES GOVERNMENT PRINTING OFFICE.  THE
MAJOR DIFFERENCE BETWEEN THE ILLUSTRATED REPORT, CHARGED TO BE OBSCENE
IN THE INDICTMENT, AND THE ACTUAL REPORT IS THAT THE ILLUSTRATED REPORT
CONTAINED ILLUSTRATIONS, WHICH THE PUBLISHERS OF THE ILLUSTRATED REPORT
SAID WERE INCLUDED "'AS EXAMPLES OF THE TYPE OF SUBJECT MATTER
DISCUSSED AND THE TYPE OF MATERIAL SHOWN TO PERSONS WHO WERE PART OF
THE RESEARCH PROJECTS ENGAGED IN FOR THE COMMISSION AS BASIS FOR THEIR
REPORT.'"  481 F.2D,AT 315. 

THE FACTS ADDUCED AT TRIAL SHOWED THAT POSTAL PATRONS IN VARIOUS
PARTS OF THE COUNTRY RECEIVED THE BROCHURE ADVERTISING THE ILLUSTRATED
REPORT.  THE MAILINGS THESE PERSONS RECEIVED CONSISTED OF AN OUTER
ENVELOPE, AN INNER RETURN ENVELOPE ADDRESSED TO LIBRARY SERVICE, INC.,
AT A POST OFFICE BOX IN SAN DIEGO, CALIFORNIA, AND THE BROCHURE ITSELF,
WHICH ALSO IDENTIFIED LIBRARY SERVICE, INC., AT THE SAME ADDRESS, AS
THE PARTY RESPONSIBLE FOR THE MAILING.  THE OUTER ENVELOPES BORE A
POSTMARK THAT INDICATED THEY WERE MAILED FROM NORTH HOLLYWOOD,
CALIFORNIA, ON OR ABOUT JANUARY 12, 1971, AND THAT THE POSTAGE WAS
AFFIXED TO THE ENVELOPES BY A PITNEY-BOWES METER NUMBER. 

THE MAILING OF THESE BROCHURES WAS ACCOMPLISHED BY PETITIONERS
THROUGH THE USE OF OTHER BUSINESSES.  APPROXIMATELY 55,000 - 58,000 OF
THESE BROCHURES WERE PLACED IN ENVELOPES, AND POSTAGE WAS AFFIXED TO
THEM BY ONE RICHARD AND ONE VENITA HARTE, WHO OPERATE THE ACADEMY
ADDRESSING AND MAILING SERVICE.  THE BROCHURES AND THE PITNEY-BOWES
METER NUMBER, WITH WHICH THEY AFFIXED THE POSTAGE, WERE SUPPLIED TO
THEM BY ONE BERNARD LIEBERMAN OF REGENT HOUSE, INC., OF NORTH
HOLLYWOOD, CALIFORNIA, WHO, ON JANUARY 11, 1971, HAD PAID THE UNITED
STATES POSTAL SERVICE TO SET $3,300 WORTH OF POSTAGE ON THE METER
NUMBER.  REGENT HOUSE WAS BILLED $541.15 BY THE HARTES FOR THEIR
SERVICES.  REGENT HOUSE IN TURN CHARGED ITS SERVICES AND COSTS FOR THE
POSTAGE AND THE HARTE'S MAILING SERVICE TO REED ENTERPRISES, INC.,
WHICH PAID THE BILL ON JANUARY 19, 1971, WITH A CHECK SIGNED BY
PETITIONER HAMLING. 

THOSE INDIVIDUALS RESPONDING TO THE BROCHURE WOULD BE SENT COPIES OF
THE ILLUSTRATED REPORT, WHICH WOULD BE MAILED WITH POSTAGE AFFIXED BY A
SECOND PITNEY-BOWES METER NUMBER WHICH WAS INSTALLED AT LIBRARY
SERVICE, INC., AT THE DIRECTION OF AN EMPLOYEE OF PITNEY-BOWES.  THE
RENTAL AGREEMENT FOR THIS METER WAS SIGNED FOR LIBRARY SERVICE BY
PETITIONER DAVID THOMAS, WHOM THAT EMPLOYEE IDENTIFIED AS THE PERSON
WITH WHOM HE HAD DEALT ON THE MATTER. 

THE EVIDENCE INDICATED THAT THE INDIVIDUAL PETITIONERS WERE OFFICERS
IN THE CORPORATE PETITIONERS, AND ALSO INDICATED THAT THEY WERE
INVOLVED WITH SELLING THE ILLUSTRATED REPORT, WHICH ENTAILED MAILING
OUT THE ADVERTISING BROCHURE.  PETITIONER HAMLING, AS PRESIDENT OF REED
ENTERPRISES, INC., SIGNED THE CHECK ON THE CORPORATION'S BEHALF IN
PAYMENT TO REGENT HOUSE FOR THE MAILING OF THE ADVERTISEMENT. 
PETITIONER KEMP WAS THE EDITOR OF THE ILLUSTRATED REPORT, AND WAS VICE
PRESIDENT OF LIBRARY SERVICE, INC., AND GREENLEAF CLASSICS, INC., WHICH
IS THE PUBLISHER OF THE ILLUSTRATED REPORT.  /5/  HE SIGNED THE
APPLICATION ON BEHALF OF LIBRARY SERVICE, INC., FOR THE POST OFFICE BOX
IN SAN DIEGO, WHICH WAS THE SAME POST OFFICE BOX ON THE RETURN ENVELOPE
SENT WITH THE ADVERTISEMENT AND ON THE ADVERTISEMENT ITSELF. 
PETITIONER THOMAS SIGNED THE RENTAL AGREEMENT FOR THE LATTER POSTAGE
METER WHICH WAS USED IN AFFIXING POSTAGE FOR SENDING COPIES OF THE
ILLUSTRATED REPORT, AND WHICH THOMAS DIRECTED TO BE INSTALLED AT
LIBRARY SERVICE. 

PETITIONER WRIGHT WAS THE SECRETARY OF REED ENTERPRISES, INC., AND
GREENLEAF CLASSICS, INC.  WRIGHT ASSISTED THE POSTAL SUPERINTENDENT IN
OBTAINING KEMP'S SIGNATURE ON THE APPLICATION FOR THE POST OFFICE BOX
IN SAN DIEGO.  WRIGHT ALSO RECEIVED A MEMORANDUM FROM LONDON PRESS,
INC., THE PRINTER OF THE ILLUSTRATED REPORT, ADDRESSED TO HER AS
REPRESENTATIVE OF REED ENTERPRISES, INC., CONFIRMING THE SHIPMENT OF
28,537 COPIES OF THE ILLUSTRATED REPORT.  VARIOUS OTHER CORPORATE
DOCUMENTS TENDED TO SHOW THE INDIVIDUAL PETITIONERS' INVOLVEMENT WITH
THE CORPORATE PETITIONERS.  BOTH THE GOVERNMENT AND THE PETITIONERS
INTRODUCED TESTIMONY FROM VARIOUS EXPERT WITNESSES CONCERNING THE
OBSCENITY VEL NON OF BOTH THE ILLUSTRATED REPORT AND THE BROCHURE. 

IN AFFIRMING THE CONVICTIONS OF THESE PETITIONERS FOR THE
DISTRIBUTION OF THE OBSCENE BROCHURE, THE COURT OF APPEALS REJECTED
VARIOUS CONTENTIONS MADE BY THE PETITIONERS.  THE COURT OF APPEALS ALSO
REJECTED PETITIONERS' PETITION FOR REHEARING AND SUGGESTION FOR
REHEARING EN BANC.  WE GRANTED CERTIORARI, 414 U.S. 1143 (1974), AND
NOW AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

        I 

THESE PETITIONERS WERE CONVICTED BY A JURY ON DECEMBER 23, 1971. 
APP. 9.  THE COURT OF APPEALS AFFIRMED THEIR CONVICTIONS IN AN OPINION
FILED ON JUNE 7, 1973.  THE COURT OF APPEALS ORIGINALLY DENIED
REHEARING AND SUGGESTION FOR REHEARING EN BANC ON JULY 9, 1973.  THAT
ORDER WAS WITHDRAWN BY THE COURT OF APPEALS TO BE RECONSIDERED IN LIGHT
OF THIS COURT'S DECISIONS, ANNOUNCED JUNE 21, 1973, IN MILLER V.
CALIFORNIA, 413 U.S. 15, AND RELATED CASES, /6/  AND WAS SUBMITTED TO
THE EN BANC COURT, BY ORDER DATED AUGUST 20, 1973.  /7/  ON AUGUST 22,
1973, THE COURT OF APPEALS ENTERED AN ORDER DENYING THE PETITION FOR
REHEARING AND THE SUGGESTION FOR REHEARING EN BANC. 

THE PRINCIPAL QUESTION PRESENTED BY THIS CASE IS WHAT RULES OF LAW
SHALL GOVERN OBSCENITY CONVICTIONS THAT OCCURRED PRIOR TO THE DATE ON
WHICH THIS COURT'S DECISION IN MILLER V. CALIFORNIA, SUPRA, AND ITS
COMPANION CASES WERE HANDED DOWN, BUT WHICH HAD NOT AT THAT POINT
BECOME FINAL.  PETITIONERS MOUNT A SERIES OF CHALLENGES TO THEIR
CONVICTIONS BASED UPON THE SO-CALLED MEMOIRS TEST FOR THE PROSCRIPTION
OF OBSCENITY.  (MEMOIRS V. MASSACHUSETTS, 383 U.S. 413 (1966).)  THEY
ALSO ATTACK THE JUDGMENTS AS FAILING TO COMPLY WITH THE STANDARDS
ENUNCIATED IN THE MILLER CASES, AND CONCLUDE BY CHALLENGING OTHER
PROCEDURAL AND EVIDENTIARY RULINGS OF THE DISTRICT COURT. 

QUESTIONS AS TO THE CONSTITUTIONALITY OF 18 U.S.C. 1461, /8/  THE
PRIMARY STATUTE UNDER WHICH PETITIONERS WERE CONVICTED WERE NOT
STRANGERS TO THIS COURT PRIOR TO THE MILLER DECISION.  IN ROTH V.
UNITED STATES, 354 U.S. 476 (1957), THE COURT HELD THAT THIS STATUTE
DID NOT OFFEND THE FREE SPEECH AND FREE PRESS GUARANTEES OF THE FIRST
AMENDMENT, AND THAT IT DID NOT DENY THE DUE PROCESS GUARANTEED BY THE
FIFTH AMENDMENT BECAUSE IT WAS "TOO VAGUE TO SUPPORT CONVICTION FOR
CRIME."  ID., AT 480.  THAT HOLDING WAS REAFFIRMED IN UNITED STATES V.
REIDEL, 402 U.S. 351 (1971).  SEE ALSO MANUAL ENTERPRISES, INC. V. DAY,
370 U.S. 478 (1962); GINZBURG V. UNITED STATES, 383 U.S. 463 (1966). 
PRIOR TO MILLER, THEREFORE, THIS COURT HAD HELD THAT 18 U.S.C. 1461,
"APPLIED ACCORDING TO THE PROPER STANDARD FOR JUDGING OBSCENITY, DOES)
NOT OFFEND CONSTITUTIONAL SAFEGUARDS AGAINST CONVICTIONS BASED UPON
PROTECTED MATERIAL, OR FAIL TO GIVE MEN IN ACTING ADEQUATE NOTICE OF
WHAT IS PROHIBITED."  ROTH V. UNITED STATES, SUPRA, AT 492. 

THESE PETITIONERS WERE TRIED AND CONVICTED UNDER THE DEFINITION OF
OBSCENITY ORIGINALLY ANNOUNCED BY THE COURT IN ROTH V. UNITED STATES,
SUPRA, AND SIGNIFICANTLY REFINED BY THE PLURALITY OPINION IN MEMOIRS V.
MASSACHUSETTS, SUPRA.  THE MEMOIRS PLURALITY HELD THAT UNDER THE ROTH
DEFINITION 

"AS ELABORATED IN SUBSEQUENT CASES, THREE ELEMENTS MUST COALESCE:
IT MUST BE ESTABLISHED THAT (A) THE DOMINANT THEME OF THE MATERIAL
TAKEN AS A WHOLE APPEALS TO A PRURIENT INTEREST IN SEX; (B) THE
MATERIAL IS PATENTLY OFFENSIVE BECAUSE IT AFFRONTS CONTEMPORARY
COMMUNITY STANDARDS RELATING TO THE DESCRIPTION OR REPRESENTATION OF
SEXUAL MATTERS; AND (C) THE MATERIAL IS UTTERLY WITHOUT REDEEMING
SOCIAL VALUE."  ID., AT 418. 

PETITIONERS MAKE NO CONTENTION THAT THE INSTRUCTIONS GIVEN BY THE
DISTRICT COURT IN THIS CASE WERE INCONSISTENT WITH THE TEST OF THE
MEMOIRS PLURALITY.  THEY ARGUE INSTEAD THAT THE OBSCENITY VEL NON OF
THE BROCHURE HAS NOT BEEN ESTABLISHED UNDER THE MEMOIRS TEST.  THE
COURT OF APPEALS RULED AGAINST PETITIONERS ON THIS SCORE, CONCLUDING
THAT THE JURY'S FINDING THAT THE BROCHURE WAS OBSCENE UNDER THE MEMOIRS
PLURALITY TEST WAS CORRECT.  PETITIONERS ARGUE AT LENGTH THAT THEIR
EXPERT WITNESSES ESTABLISHED THAT THE BROCHURE DID NOT APPEAL TO A
PRURIENT INTEREST IN SEX, THAT IT WAS NOT PATENTLY OFFENSIVE, AND THAT
IT HAD SOCIAL VALUE.  EXAMINING THE RECORD BELOW, WE FIND THAT THE JURY
COULD CONSTITUTIONALLY FIND THE BROCHURE OBSCENE UNDER THE MEMOIRS
TEST.  EXPERT TESTIMONY IS NOT NECESSARY TO ENABLE THE JURY TO JUDGE
THE OBSCENITY OF MATERIAL WHICH, AS HERE, HAS BEEN PLACED INTO
EVIDENCE.  SEE PARIS ADULT THEATRE I V. SLATON, 413 U.S. 49, 56 (1973);
KAPLAN V. CALIFORNIA, 413 U.S. 115, 120 - 121 (1973); GINZBURG V.
UNITED STATES, SUPRA, AT 465.  IN THIS CASE, BOTH THE GOVERNMENT AND
THE PETITIONERS INTRODUCED TESTIMONY THROUGH EXPERT WITNESSES
CONCERNING THE ALLEGED OBSCENITY OF THE BROCHURE.  THE JURY WAS NOT
BOUND TO ACCEPT THE OPINION OF ANY EXPERT IN WEIGHING THE EVIDENCE OF
OBSCENITY, AND WE CONCLUDE THAT ITS DETERMINATION THAT THE BROCHURE WAS
OBSCENE WAS SUPPORTED BY THE EVIDENCE AND CONSISTENT WITH THE MEMOIRS
FORMULATION OF OBSCENITY.     PETITIONERS NEVERTHELESS CONTEND THAT
SINCE THE JURY WAS UNABLE TO REACH A VERDICT ON THE COUNTS CHARGING THE
OBSCENITY VEL NON OF THE ILLUSTRATED REPORT ITSELF, THAT REPORT MUST BE
PRESUMED TO BE NONOBSCENE, AND THEREFORE PROTECTED BY THE FIRST
AMENDMENT.  FROM THIS PREMISE THEY CONTEND THAT SINCE THE BROCHURE
FAIRLY ADVERTISED THE ILLUSTRATED REPORT, THE BROCHURE MUST ALSO BE
NONOBSCENE.  THE COURT OF APPEALS REJECTED THIS CONTENTION, NOTING THAT
"(THE PREMISE IS FALSE.  THE JURY MADE NO FINDING ON THE CHARGED
OBSCENITY OF THE REPORT."  481 F.2D,AT 315.  THE JURY IN THIS CASE DID
NOT ACQUIT THE PETITIONERS OF THE CHARGES RELATING TO THE DISTRIBUTION
OF THE ALLEGEDLY OBSCENE ILLUSTRATED REPORT.  IT INSTEAD WAS UNABLE TO
REACH A VERDICT ON THE COUNTS CHARGING THE DISTRIBUTION OF THE
ILLUSTRATED REPORT, AND ACCORDINGLY, THE DISTRICT COURT DECLARED A
MISTRIAL AS TO THOSE COUNTS.  APP. 9 - 10.  IT HAS, OF COURSE, LONG
BEEN THE RULE THAT CONSISTENCY IN VERDICTS OR JUDGMENTS OF CONVICTION
IS NOT REQUIRED.  UNITED STATES V. DOTTERWEICH, 320 U.S. 277, 279
(1943); DUNN V. UNITED STATES, 284 U.S. 390, 393 (1932).  "THE MERE
FACT JURIES MAY REACH DIFFERENT CONCLUSIONS AS TO THE SAME MATERIAL
DOES NOT MEAN THAT CONSTITUTIONAL RIGHTS ARE ABRIDGED.  AS THIS COURT
OBSERVED IN ROTH V. UNITED STATES, 354 U.S.,AT 492 N. 30, 'IT IS COMMON
EXPERIENCE THAT DIFFERENT JURIES MAY REACH DIFFERENT RESULTS UNDER ANY
CRIMINAL STATUTE.  THAT IS ONE OF THE CONSEQUENCES WE ACCEPT UNDER OUR
JURY SYSTEM.  CF. DUNLOP V. UNITED STATES, 165 U.S. 486, 499 - 500.'" 
MILLER V. CALIFORNIA, 413 U.S., AT 26 N. 9.  THE BROCHURE IN THIS CASE
STANDS BY ITSELF, AND MUST ACCORDINGLY BE JUDGED.  IT IS NOT, AS
PETITIONERS SUGGEST, INSEPARABLE FROM THE ILLUSTRATED REPORT, AND IT
CANNOT BE SERIOUSLY CONTENDED THAT AN OBSCENE ADVERTISEMENT COULD NOT
BE PREPARED FOR SOME TYPE OF NONOBSCENE MATERIAL.  IF CONSISTENCY IN
JURY VERDICTS AS TO THE OBSCENITY VEL NON OF IDENTICAL MATERIALS IS NOT
CONSTITUTIONALLY REQUIRED, MILLER V. CALIFORNIA, SUPRA, THE SAME IS
TRUE A FORTIORI OF VERDICTS AS TO SEPARATE MATERIALS, REGARDLESS OF
THEIR SIMILARITIES. 

OUR MILLER DECISIONS DEALING WITH THE CONSTITUTIONAL ASPECTS OF
OBSCENITY PROSECUTIONS WERE ANNOUNCED AFTER THE PETITIONERS HAD BEEN
FOUND GUILTY BY A JURY, AND THEIR JUDGMENT OF CONVICTION AFFIRMED BY A
PANEL OF THE COURT OF APPEALS.  OUR PRIOR DECISIONS ESTABLISH A GENERAL
RULE THAT A CHANGE IN THE LAW OCCURRING AFTER A RELEVANT EVENT IN A
CASE WILL BE GIVEN EFFECT WHILE THE CASE IS ON DIRECT REVIEW.  UNITED
STATES V. SCHOONER PEGGY, 1 CRANCH 103 (1801); LINKLETTER V. WALKER,
381 U.S. 618, 627 (1965); BRADLEY V. SCHOOL BOARD OF RICHMOND, 416 U.S.
696, 711 (1974).  SINCE THE JUDGMENT IN THIS CASE HAS NOT BECOME FINAL,
WE EXAMINE THE JUDGMENT AGAINST PETITIONERS IN THE LIGHT OF THE
PRINCIPLES LAID DOWN IN THE MILLER CASES.  WHILE THE LANGUAGE OF 18
U.S.C. 1461 HAS REMAINED THE SAME THROUGHOUT THIS LITIGATION, THE
STATUTE DEFINES AN OFFENSE IN TERMS OF "OBSCENITY," AND THIS COURT'S
DECISIONS, AT LEAST SINCE ROTH V. UNITED STATES, SUPRA, INDICATE THAT
THERE ARE CONSTITUTIONAL LIMITATIONS WHICH MUST BE BORNE IN MIND IN
DEFINING THAT STATUTORY TERM.  THUS ANY CONSTITUTIONAL PRINCIPLE
ENUNCIATED IN MILLER WHICH WOULD SERVE TO BENEFIT PETITIONERS MUST BE
APPLIED IN THEIR CASE. 

RECOGNIZING THAT THE MEMOIRS PLURALITY TEST HAD REPRESENTED A SHARP
BREAK WITH THE TEST OF OBSCENITY AS ANNOUNCED IN ROTH V. UNITED STATES,
SUPRA, OUR DECISION IN MILLER V. CALIFORNIA REFORMULATED THE TEST FOR
THE DETERMINATION OF OBSCENITY VEL NON: 

"THE BASIC GUIDELINES FOR THE TRIER OF FACT MUST BE:  (A)

WHETHER 'THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY

  STANDARDS' WOULD FIND THAT THE WORK, TAKEN AS A WHOLE, APPEALS TO

  THE PRURIENT INTEREST . . .; (B) WHETHER THE WORK DEPICTS OR

  DESCRIBES, IN A PATENTLY OFFENSIVE WAY, SEXUAL CONDUCT

  SPECIFICALLY DEFINED BY THE APPLICABLE STATE LAW; AND (C) WHETHER

  THE WORK, TAKEN AS A WHOLE, LACKS SERIOUS LITERARY, ARTISTIC,

  POLITICAL, OR SCIENTIFIC VALUE."  413 U.S., AT 24. 

THE COURT OF APPEALS HELD ON REHEARING THAT THE MILLER CASES GENERALLY
PRESCRIBED A MORE RELAXED STANDARD OF REVIEW UNDER THE FEDERAL
CONSTITUTION FOR OBSCENITY CONVICTIONS, AND THAT THEREFORE PETITIONERS
COULD DERIVE NO BENEFIT FROM THE PRINCIPLES ENUNCIATED IN THOSE CASES. 
SEE N. 7, SUPRA.  PETITIONERS CONCEDE THAT THIS OBSERVATION MAY BE TRUE
IN MANY PARTICULARS, BUT THAT IN AT LEAST TWO IT IS NOT.  THEY CONTEND
THAT THE MILLER TREATMENT OF THE CONCEPT OF "NATIONAL STANDARDS"
NECESSARILY INVALIDATES THE DISTRICT COURT'S CHARGE TO THE JURY IN
THEIR CASE RELATING TO THE STANDARD BY WHICH THE QUESTION OF OBSCENITY
WAS TO BE JUDGED, AND THEY FURTHER CONTEND THAT THE GENERAL LANGUAGE OF
18 U.S.C. 1461 IS, IN THE LIGHT OF THE HOLDING IN THE MILLER CASES,
UNCONSTITUTIONALLY VAGUE. 

        A 

THE TRIAL COURT INSTRUCTED THE JURY THAT IT WAS TO JUDGE THE
OBSCENITY VEL NON OF THE BROCHURE BY REFERENCE TO "WHAT IS REASONABLE
ACCEPTED ACCORDING TO THE CONTEMPORARY STANDARDS OF THE COMMUNITY AS A
WHOLE.  . . . CONTEMPORARY COMMUNITY STANDARDS MEANS THE STANDARDS
GENERALLY HELD THROUGHOUT THIS COUNTRY CONCERNING SEX AND MATTERS
PERTAINING TO SEX.  THIS PHRASE MEANS, AS IT HAS BEEN APTLY STATED, THE
AVERAGE CONSCIENCE OF THE TIME, AND THE PRESENT CRITICAL POINT IN THE
COMPROMISE BETWEEN CANDOR AND SHAME, AT WHICH THE COMMUNITY MAY HAVE
ARRIVED HERE AND NOW."  APP. 241.  PETITIONERS DESCRIBE THIS AS AN
INSTRUCTION EMBODYING THE PRINCIPLE OF "NATIONAL STANDARDS" WHICH,
ALTHOUGH IT MAY HAVE BEEN PROPER UNDER THE LAW AS IT EXISTED WHEN THEY
WERE TRIED, CANNOT BE SUSTAINED UNDER THE LAW AS LAID DOWN IN MILLER,
WHERE THE COURT STATED: 

"NOTHING IN THE FIRST AMENDMENT REQUIRES THAT A JURY MUST CONSIDER
HYPOTHETICAL AND UNASCERTAINABLE 'NATIONAL STANDARDS' WHEN ATTEMPTING
TO DETERMINE WHETHER CERTAIN MATERIALS ARE OBSCENE AS A MATTER OF
FACT."  413 U.S.,AT 31 - 32. 

PARADOXICALLY, HOWEVER, PETITIONERS ALSO CONTEND THAT IN ORDER TO
AVOID SERIOUS CONSTITUTIONAL QUESTIONS THE STANDARDS IN FEDERAL
OBSCENITY PROSECUTIONS MUST BE NATIONAL ONES, RELYING ON MANUAL
ENTERPRISES, INC. V. DAY, 370 U.S.,AT 488 (OPINION OF HARLAN, J.), AND
UNITED STATES V. PALLADINO, 490 F.2D 499 (CA1 1974).  PETITIONERS
ASSERT THAT OUR DECISIONS IN THE TWO FEDERAL OBSCENITY CASES DECIDED
WITH MILLER /9/  INDICATE THAT THIS COURT HAS NOT DEFINITIVELY DECIDED
WHETHER THE CONSTITUTION REQUIRES THE USE OF NATIONWIDE STANDARDS IN
FEDERAL OBSCENITY PROSECUTIONS. 

WE THINK THAT BOTH OF THESE CONTENTIONS EVIDENCE A MISUNDERSTANDING
OF OUR MILLER HOLDINGS.  MILLER REJECTED THE VIEW THAT THE FIRST AND
FOURTEENTH AMENDMENTS REQUIRE THAT THE PROSCRIPTION OF OBSCENITY BE
BASED ON UNIFORM NATIONWIDE STANDARDS OF WHAT IS OBSCENE, DESCRIBING
SUCH STANDARDS AS "HYPOTHETICAL AND UNASCERTAINABLE,"  413 U.S.,AT 31. 
BUT IN SO DOING THE COURT DID NOT REQUIRE AS A CONSTITUTIONAL MATTER
THE SUBSTITUTION OF SOME SMALLER GEOGRAPHICAL AREA INTO THE SAME SORT
OF FORMULA; THE TEST WAS STATED IN TERMS OF THE UNDERSTANDING OF "THE
AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS."  ID., AT
24.  WHEN THIS APPROACH IS COUPLED WITH THE REAFFIRMATION IN PARIS
ADULT THEATRE I V. SLATON, 413 U.S.,AT 56, OF THE RULE THAT THE
PROSECUTION NEED NOT AS A MATTER OF CONSTITUTIONAL LAW PRODUCE "EXPERT"
WITNESSES TO TESTIFY AS TO THE OBSCENITY OF THE MATERIALS, THE IMPORT
OF THE QUOTED LANGUAGE FROM MILLER BECOMES CLEAR.  A JUROR IS ENTITLED
TO DRAW ON HIS OWN KNOWLEDGE OF THE VIEWS OF THE AVERAGE PERSON IN THE
COMMUNITY OR VICINAGE FROM WHICH HE COMES FOR MAKING THE REQUIRED
DETERMINATION, JUST AS HE IS ENTITLED TO DRAW ON HIS KNOWLEDGE OF THE
PROPENSITIES OF A "REASONABLE" PERSON IN OTHER AREAS OF THE LAW.  STONE
V. NEW YORK, C. & ST. L. R. CO., 344 U.S. 407, 409 (1953); SCHULZ V.
PENNSYLVANIA R. CO., 350 U.S. 523, 525 - 526 (1956).  OUR HOLDING IN
MILLER THAT CALIFORNIA COULD CONSTITUTIONALLY PROSCRIBE OBSCENITY IN
TERMS OF A "STATEWIDE"  STANDARD DID NOT MEAN THAT ANY SUCH PRECISE
GEOGRAPHIC AREA IS REQUIRED AS A MATTER OF CONSTITUTIONAL LAW. 

OUR ANALYSIS IN MILLER OF THE DIFFICULTY IN FORMULATING UNIFORM
NATIONAL STANDARDS OF OBSCENITY, AND OUR EMPHASIS ON THE ABILITY OF THE
JUROR TO ASCERTAIN THE SENSE OF THE "AVERAGE PERSON, APPLYING
CONTEMPORARY COMMUNITY STANDARDS"  WITHOUT THE BENEFIT OF EXPERT
EVIDENCE, CLEARLY INDICATES THAT 18 U.S.C. 1461 IS NOT TO BE
INTERPRETED AS REQUIRING PROOF OF THE UNIFORM NATIONAL STANDARDS WHICH
WERE CRITICIZED IN MILLER.  IN UNITED STATES V. 12 200-FT. REELS OF
FILM, 413 U.S. 123 (1973), A FEDERAL OBSCENITY CASE DECIDED WITH
MILLER, WE SAID: 

"WE HAVE TODAY ARRIVED AT STANDARDS FOR TESTING THE
CONSTITUTIONALITY OF STATE LEGISLATION REGULATING OBSCENITY.  SEE
MILLER V. CALIFORNIA, ANTE, AT 23 - 25.  THESE STANDARDS ARE APPLICABLE
TO FEDERAL LEGISLATION."  ID., AT 129 - 130.  INCLUDED IN THE PAGES
REFERRED TO IN MILLER IS THE STANDARD OF "THE AVERAGE PERSON, APPLYING
CONTEMPORARY COMMUNITY STANDARDS."  IN VIEW OF OUR HOLDING IN 12 200
FT. REELS OF FILM, WE HOLD THAT 18 U.S.C. 1461 INCORPORATES THIS TEST
IN DEFINING OBSCENITY. 

THE RESULT OF THE MILLER CASES, THEREFORE, AS A MATTER OF
CONSTITUTIONAL LAW AND FEDERAL STATUTORY CONSTRUCTION, IS TO PERMIT A
JUROR SITTING IN OBSCENITY CASES TO DRAW ON KNOWLEDGE OF THE COMMUNITY
OR VICINAGE FROM WHICH HE COMES IN DECIDING WHAT CONCLUSION "THE
AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS" WOULD REACH
IN A GIVEN CASE.  SINCE THIS CASE WAS TRIED IN THE SOUTHERN DISTRICT OF
CALIFORNIA, AND PRESUMABLY JURORS FROM THROUGHOUT THAT JUDICIAL
DISTRICT WERE AVAILABLE TO SERVE ON THE PANEL WHICH TRIED PETITIONERS,
IT WOULD BE THE STANDARDS OF THAT "COMMUNITY" UPON WHICH THE JURORS
SHOULD DRAW.  BUT THIS IS NOT TO SAY THAT A DISTRICT COURT WOULD NOT BE
AT LIBERTY TO ADMIT EVIDENCE OF STANDARDS EXISTING IN SOME PLACE
OUTSIDE OF THIS PARTICULAR DISTRICT, IF IT FELT SUCH EVIDENCE WOULD
ASSIST THE JURORS IN THE RESOLUTION OF THE ISSUES WHICH THEY WERE TO
DECIDE. 

OUR BROTHER BRENNAN SUGGESTS IN DISSENT THAT IN HOLDING THAT A
FEDERAL OBSCENITY CASE MAY BE TRIED ON LOCAL COMMUNITY STANDARDS, WE DO
VIOLENCE BOTH TO CONGRESSIONAL PREROGATIVE AND TO THE CONSTITUTION. 
BOTH OF THESE ARGUMENTS ARE FORECLOSED BY OUR DECISION LAST TERM IN
UNITED STATES V. 12 200-FT. REELS OF FILM, SUPRA, THAT THE MILLER
STANDARDS, INCLUDING THE "CONTEMPORARY COMMUNITY STANDARDS"
FORMULATION, APPLIED TO FEDERAL LEGISLATION.  THE FACT THAT
DISTRIBUTORS OF ALLEGEDLY OBSCENE MATERIALS MAY BE SUBJECTED TO VARYING
COMMUNITY STANDARDS IN THE VARIOUS FEDERAL JUDICIAL DISTRICTS INTO
WHICH THEY TRANSMIT THE MATERIALS DOES NOT RENDER A FEDERAL STATUTE
UNCONSTITUTIONAL BECAUSE OF THE FAILURE OF APPLICATION OF UNIFORM
NATIONAL STANDARDS OF OBSCENITY.  THOSE SAME DISTRIBUTORS MAY BE
SUBJECTED TO SUCH VARYING DEGREES OF CRIMINAL LIABILITY IN PROSECUTIONS
BY THE STATES FOR VIOLATIONS OF STATE OBSCENITY STATUTES; WE SEE NO
CONSTITUTIONAL IMPEDIMENT TO A SIMILAR RULE FOR FEDERAL PROSECUTIONS. 
IN MILLER V. CALIFORNIA, 413 U.S.,AT 32, WE CITED WITH APPROVAL MR.
CHIEF JUSTICE WARREN'S STATEMENT THAT: 

"(WHEN THE COURT SAID IN ROTH THAT OBSCENITY IS TO BE DEFINED BY
REFERENCE TO 'COMMUNITY STANDARDS,' IT MEANT COMMUNITY STANDARDS--NOT A
NATIONAL STANDARD, AS IS SOMETIMES ARGUED.  I BELIEVE THAT THERE IS NO
PROVABLE 'NATIONAL STANDARD,' AND PERHAPS THERE SHOULD BE NONE.  AT ALL
EVENTS, THIS COURT HAS NOT BEEN ABLE TO ENUNCIATE ONE, AND IT WOULD BE
UNREASONABLE TO EXPECT LOCAL COURTS TO DIVINE ONE.  IT IS SAID THAT
SUCH A 'COMMUNITY' APPROACH MAY WELL RESULT IN MATERIAL BEING
PROSCRIBED AS OBSCENE IN ONE COMMUNITY BUT NOT IN ANOTHER, AND, IN ALL
PROBABILITY, THAT IS TRUE.  BUT COMMUNITIES THROUGHOUT THE NATION ARE
IN FACT DIVERSE, AND IT MUST BE REMEMBERED THAT, IN CASES SUCH AS THIS
ONE, THE COURT IS CONFRONTED WITH THE TASK OF RECONCILING CONFLICTING
RIGHTS OF THE DIVERSE COMMUNITIES WITHIN OUR SOCIETY AND OF
INDIVIDUALS."  JACOBELLIS V. OHIO, 378 U.S. 184, 200 - 201 (1964)
(DISSENTING OPINION). 

JUDGING THE INSTRUCTION GIVEN BY THE DISTRICT COURT IN THIS CASE BY
THESE PRINCIPLES, THERE IS NO DOUBT THAT ITS OCCASIONAL REFERENCES TO
THE COMMUNITY STANDARDS OF THE "NATION AS A WHOLE" DELINEATED A WIDER
GEOGRAPHICAL AREA THAN WOULD BE WARRANTED BY MILLER, 12 200-FT. REELS
OF FILM, AND OUT CONSTRUCTION OF 1461 HEREIN, SUPRA, AT 105.  WHETHER
PETITIONERS WERE MATERIALLY PREJUDICED BY THOSE REFERENCES IS A
DIFFERENT QUESTION.  CERTAINLY THE GIVING OF SUCH AN INSTRUCTION DOES
NOT RENDER THEIR CONVICTIONS VOID AS A MATTER OF CONSTITUTIONAL LAW. 
THIS COURT HAS EMPHASIZED ON MORE THAN ONE OCCASION THAT A PRINCIPAL
CONCERN IN REQUIRING THAT A JUDGMENT BE MADE ON THE BASIS OF
"CONTEMPORARY COMMUNITY STANDARDS" IS TO ASSURE THAT THE MATERIAL IS
JUDGED NEITHER ON THE BASIS OF EACH JUROR'S PERSONAL OPINION, NOR BY
ITS EFFECT ON A PARTICULARLY SENSITIVE OR INSENSITIVE PERSON OR GROUP. 
MILLER V. CALIFORNIA, SUPRA, AT 33; MISHKIN V. NEW YORK, 383 U.S. 502,
508 - 509 (1966); ROTH V. UNITED STATES, 354 U.S.,AT 489.  THE DISTRICT
COURT'S INSTRUCTION IN THIS CASE, INCLUDING ITS REFERENCE TO THE
STANDARDS OF THE "NATION AS A WHOLE,"  UNDOUBTEDLY ACCOMPLISHED THIS
PURPOSE.     WE HAVE FREQUENTLY HELD THAT JURY INSTRUCTIONS ARE TO BE
JUDGED AS A WHOLE, RATHER THAN BY PICKING ISOLATED PHRASES FROM THEM. 
BOYD V. UNITED STATES, 271 U.S. 104, 107 (1926).  IN THE UNUSUAL
POSTURE OF THIS CASE, IN WHICH PETITIONERS AGREE THAT THE CHALLENGED
INSTRUCTION WAS PROPER AT THE TIME IT WAS GIVEN BY THE DISTRICT COURT,
BUT NOW SEEK TO CLAIM THE BENEFIT OF A CHANGE IN THE LAW WHICH CASTS
DOUBT ON THE CORRECTNESS OF PORTIONS OF IT, WE HOLD THAT REVERSAL IS
REQUIRED ONLY WHERE THERE IS A PROBABILITY THAT THE EXCISION OF THE
REFERENCES TO THE "NATION AS A WHOLE" IN THE INSTRUCTION DEALING WITH
COMMUNITY STANDARDS WOULD HAVE MATERIALLY AFFECTED THE DELIBERATIONS OF
THE JURY.  CF. NAMET V. UNITED STATES, 373 U.S. 179, 190 - 191 (1963);
LOPEZ V. UNITED STATES, 373 U.S. 427, 436 (1963).  OUR EXAMINATION OF
THE RECORD CONVINCES US THAT SUCH A PROBABILITY DOES NOT EXIST IN THIS
CASE. 

OUR BROTHER BRENNAN TAKES US TO TASK FOR REACHING THIS CONCLUSION,
INSISTING THAT THE DISTRICT COURT'S INSTRUCTIONS AND ITS EXCLUSION OF
THE TESTIMONY OF A WITNESS, MISS CARLSEN, WHO HAD ASSERTEDLY CONDUCTED
A SURVEY OF STANDARDS IN THE SAN DIEGO AREA REQUIRE THAT PETITIONERS BY
ACCORDED A NEW TRIAL.  AS WE HAVE NOTED, INFRA, AT 124 - 125, THE
DISTRICT COURT HAS WIDE DISCRETION IN ITS DETERMINATION TO ADMIT AND
EXCLUDE EVIDENCE, AND THIS IS PARTICULARLY TRUE IN THE CASE OF EXPERT
TESTIMONY.  STILLWELL MFG. CO. V. PHELPS, 130 U.S. 520, 527 (1889);
BARNES V. SMITH, 305 F.2D 226, 232 (CA10 1962); 2 J.WIGMORE, EVIDENCE
561 (3D ED. 1940).  /10/  BUT EVEN ASSUMING THAT THE DISTRICT COURT MAY
HAVE ERRED IN EXCLUDING THE WITNESS'  TESTIMONY IN LIGHT OF THE MILLER
CASES, WE THINK ARGUMENTS MADE BY PETITIONERS'  COUNSEL AND URGING THE
ADMISSION OF THE SURVEY RE-EMPHASIZE THE CONFUSING AND OFTEN GOSSAMER
DISTINCTIONS BETWEEN "NATIONAL" STANDARDS AND OTHER TYPES OF
STANDARDS.  PETITIONERS' COUNSEL, IN URGING THE DISTRICT COURT TO ADMIT
THE SURVEY, STATED: 

     "WE HAVE ALREADY HAD EXPERTS WHO HAVE TESTIFIED AND EXPECT TO

  BRING IN OTHERS WHO HAVE TESTIFIED BOTH FOR THE PROSECUTION AND

  THE DEFENSE THAT THE MATERIAL THAT THEY FOUND WAS SIMILAR IN ALL

  CITIES.  . . ."  TR. 3931. 

     "THIS WITNESS CAN TESTIFY ABOUT EXPERIENCES SHE HAD IN ONE

  PARTICULAR CITY.  WHETHER THIS IS OR NOT A TYPICAL CITY IS FOR

  THE JURY TO DECIDE.  TR. 3932. 

     "NOW THIS SUPPORTS THE NATIONAL SURVEY.  IT IS NOT SOMETHING

  THAT STANDS ALONE.  THE FINDINGS HERE ARE CONSISTENT WITH THE

  NATIONAL SURVEY AND AS PART OF THE OVERALL PICTURE, TAKING INTO

  ACCOUNT, OF COURSE, THAT THIS IS SOMETHING THAT HAS TAKEN PLACE

  AFTER THE NATIONAL SURVEY, WHICH WAS ABOUT TWO YEARS AGO, THAT

  DR. ABELSON PERFORMED."  TR. 3934 - 3935. 

THE DISTRICT COURT PERMITTED DR. WILSON, ONE OF THE FOUR EXPERT
WITNESSES WHO TESTIFIED ON BEHALF OF PETITIONERS, TO TESTIFY AS TO
MATERIALS HE FOUND AVAILABLE IN SAN DIEGO, AS A RESULT OF HAVING SPENT
SEVERAL DAYS THERE.  TR. 3575.  HE WAS THEN ASKED BY PETITIONERS'
COUNSEL WHETHER THIS MATERIAL WAS "SIMILAR TO OR DIFFERENT THAN" THE
MATERIAL FOUND IN OTHER CITIES WHERE HE HAD ALSO VISITED ADULT
BOOKSTORES.  THE WITNESS RESPONDED THAT HE THOUGHT "ESSENTIALLY THE
SAME KINDS OF MATERIAL ARE FOUND THROUGHOUT THE UNITED STATES."  TR.
3577.  THESE STATEMENTS, IN COLLOQUIES BETWEEN COUNSEL AND DR. WILSON,
ONLY SERVE TO CONFIRM OUR CONCLUSION THAT WHILE THERE MAY HAVE BEEN AN
ERROR IN THE DISTRICT COURT'S REFERENCES TO THE "COMMUNITY STANDARDS OF
THE NATION AS A WHOLE" IN ITS INSTRUCTIONS, AND IN ITS STATED REASONS
FOR EXCLUDING THE TESTIMONY OF MISS CARLSEN, THESE ERRORS DO NOT
REQUIRE REVERSAL UNDER THE STANDARD PREVIOUSLY ENUNCIATED.  /11/

        B 

PETITIONERS NEXT ARGUE THAT PRIOR TO OUR DECISION IN MILLER, 18
U.S.C. 1461 DID NOT CONTAIN IN ITS LANGUAGE, NOR HAD IT BEEN CONSTRUED
TO APPLY TO, THE SPECIFIC TYPES OF SEXUAL CONDUCT REFERRED TO IN
MILLER, AND THEREFORE THE SECTION WAS UNCONSTITUTIONALLY VAGUE AS
APPLIED TO THEM IN THE PROSECUTION OF THESE CASES.  SUCH AS ARGUMENT,
HOWEVER, NOT ONLY NEGLECTS THIS COURT'S DECISIONS PRIOR TO MILLER
REJECTING VAGUENESS CHALLENGES TO THE FEDERAL STATUTE, BUT ALSO
FUNDAMENTALLY MISCONCEIVES THE THRUST OF OUR DECISION IN THE MILLER
CASES. 

IN ROTH V. UNITED STATES, 354 U.S.,AT 491, WE UPHELD THE
CONSTITUTIONALITY OF 18 U.S.C. 1461 AGAINST A CONTENTION THAT IT DID
"NOT PROVIDE REASONABLY ASCERTAINABLE STANDARDS OF GUILT AND THEREFORE
VIOLATES) THE CONSTITUTIONAL REQUIREMENTS OF DUE PROCESS."  IN NOTING
THAT THE FEDERAL OBSCENITY STATUTE MADE PUNISHABLE THE MAILING OF
MATERIAL THAT IS "OBSCENE, LEWD, LASCIVIOUS, OR FILTHY . . . (AND OF)
OTHER PUBLICATIONS) OF AN INDECENT CHARACTER," THE COURT STATED IN
ROTH: 

     "MANY DECISIONS HAVE RECOGNIZED THAT THESE TERMS OF OBSCENITY

  STATUTES ARE NOT PRECISE.  THIS COURT, HOWEVER, HAS CONSISTENTLY

  HELD THAT LACK OF PRECISION IS NOT ITSELF OFFENSIVE TO THE

  REQUIREMENTS OF DUE PROCESS.  '.  . . (THE CONSTITUTION DOES NOT

  REQUIRE IMPOSSIBLE STANDARDS'; ALL THAT IS REQUIRED IS THAT THE

  LANGUAGE 'CONVEYS SUFFICIENTLY DEFINITE WARNING AS TO THE

  PROSCRIBED CONDUCT WHEN MEASURED BY COMMON UNDERSTANDING AND

  PRACTICES.  . . .'  UNITED STATES V. PETRILLO, 332 U.S. 1, 7 -
8. 

  THESE WORDS, APPLIED ACCORDING TO THE PROPER STANDARD FOR JUDGING

  OBSCENITY, ALREADY DISCUSSED, GIVE ADEQUATE WARNING OF THE

  CONDUCT PROSCRIBED AND MARK '.  . . BOUNDARIES SUFFICIENTLY

  DISTINCT FOR JUDGES AND JURIES FAIRLY TO ADMINISTER THE LAW.  . .

  . THAT THERE MAY BE MARGINAL CASES IN WHICH IT IS DIFFICULT TO

  DETERMINE THE SIDE OF THE LINE ON WHICH A PARTICULAR FACT

  SITUATION FALLS IS NO SUFFICIENT REASON TO HOLD THE LANGUAGE TOO

  AMBIGUOUS TO DEFINE A CRIMINAL OFFENSE.  . . .'  ID., AT 7."  354

U.S.,AT 491 - 492 (FOOTNOTE OMITTED). 

OTHER DECISIONS DEALING WITH THE PRE-MILLER CONSTITUTIONALITY OR
INTERPRETATION OF 18 U.S.C. 1461 IN OTHER CONTEXTS HAVE NOT RETREATED
FROM THE LANGUAGE OF ROTH.  SEE, E.G., UNITED STATES V. REIDEL, 402
U.S. 351 (1971); GINZBURG V. UNITED STATES, 383 U.S. 463 (1966); MANUAL
ENTERPRISES, INC. V. DAY, 370 U.S. 478 (1962).  AND AS MADE CLEAR BY
THE OPINION OF MR. JUSTICE HARLAN IN MANUAL ENTERPRISES, THE LANGUAGE
OF 18 U.S.C. 1461 HAD BEEN, PRIOR TO THE DATE OF OUR DECISION IN
MILLER, AUTHORATIVELY CONSTRUED IN A MANNER CONSISTENT WITH MILLER: 

     "THE WORDS OF SECTION 1461, 'OBSCENE, LEWD, LASCIVIOUS,

  INDECENT, FILTHY OR VILE,' CONNOTE SOMETHING THAT IS PORTRAYED IN

  A MANNER SO OFFENSIVE AS TO MAKE IT UNACCEPTABLE UNDER CURRENT

  COMMUNITY MORES.  WHILE IN COMMON USAGE THE WORDS HAVE DIFFERENT

  SHADES OF MEANING, THE STATUTE SINCE ITS INCEPTION HAS ALWAYS

BEEN TAKEN AS AIMED AT OBNOXIOUSLY DEBASING PORTRAYALS OF SEX. 

  ALTHOUGH THE STATUTE CONDEMNS SUCH MATERIAL IRRESPECTIVE OF THE

  EFFECT IT MAY HAVE UPON THOSE INTO WHOSE HANDS IT FALLS, THE

  EARLY CASE OF UNITED STATES V. BENNETT, 24 FED.CAS.  1093 (NO.

  14571), PUT A LIMITING GLOSS UPON THE STATUTORY LANGUAGE:  THE

  STATUTE REACHES ONLY INDECENT MATERIAL WHICH, AS NOW EXPRESSED IN

  ROTH V. UNITED STATES, SUPRA, AT 489, 'TAKEN AS A WHOLE APPEALS

  TO PRURIENT INTEREST.'"  370 U.S.,AT 482 - 484 (FOOTNOTES

  OMITTED) (EMPHASIS IN ORIGINAL). 

AT NO POINT DOES MILLER OR ANY OF THE OTHER OBSCENITY DECISIONS
DECIDED LAST TERM INTIMATE THAT THE CONSTITUTIONALITY OF PRE-MILLER
CONVICTIONS UNDER STATUTES SUCH AS 18 U.S.C. 1461 WAS TO BE CAST IN
DOUBT.  INDEED, THE CONTRARY IS READILY APPARENT FROM THE OPINIONS IN
THOSE CASES.  WE MADE CLEAR IN MILLER, 413 U.S.,AT 24 N. 6, THAT OUR
DECISION WAS NOT INTENDED TO HOLD ALL STATE STATUTES INADEQUATE, AND WE
CLEARLY RECOGNIZED THAT EXISTING STATUTES "AS CONSTRUED HERETOFORE OR
HEREAFTER, MAY WELL BE ADEQUATE."  THAT RECOGNITION IS EMPHASIZED IN
OUR OPINION IN UNITED STATES V. 12 200-FT. REELS OF FILM, 413 U.S. 123
(1973).  THAT CASE HAD COME TO THIS COURT ON APPEAL FROM THE DISTRICT
COURT'S DISMISSAL OF THE GOVERNMENT'S FORFEITURE ACTION UNDER 19 U.S.C.
1305(A), WHICH STATUTE THE DISTRICT COURT HAD FOUND UNCONSTITUTIONAL. 
IN VACATING THE DISTRICT COURT'S CONSTITUTIONAL DECISION AND REMANDING
THE CASE TO THE DISTRICT COURT FOR A DETERMINATION OF THE OBSCENITY VEL
NON OF THE MATERIALS THERE INVOLVED, WE STATED: 

     "WE FURTHER NOTE THAT, WHILE WE MUST LEAVE TO STATE COURTS THE

CONSTRUCTION OF STATE LEGISLATION, WE DO HAVE A DUTY TO

AUTHORITATIVELY CONSTRUE FEDERAL STATUTES WHERE 'A SERIOUS DOUBT

  OF CONSTITUTIONALITY IS RAISED' AND '"A CONSTRUCTION OF THE

  STATUTE IS FAIRLY POSSIBLE BY WHICH THE QUESTION MAY BE

  AVOIDED."'  UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S.

  363, 369 (1971) (OPINION OF WHITE, J.), QUOTING FROM CROWELL V.

  BENSON, 285 U.S. 22, 62 (1932).  IF AND WHEN SUCH A 'SERIOUS

  DOUBT' IS RAISED AS TO THE VAGUENESS OF THE WORDS 'OBSCENE,'

  'LEWD,'  'LASCIVIOUS,' 'FILTHY,' 'INDECENT,' OR 'IMMORAL' AS USED

  TO DESCRIBE REGULATED MATERIAL IN 19 U.S.C. 1305(A) AND 18 U.S.C.

  1462, SEE UNITED STATES V. ORITO, (413 U.S.,AT 140 N. 1, WE ARE

  PREPARED TO CONSTRUE SUCH TERMS AS LIMITING REGULATED MATERIAL TO

  PATENTLY OFFENSIVE REPRESENTATIONS OR DESCRIPTIONS OF THAT

  SPECIFIC 'HARD CORE' SEXUAL CONDUCT GIVEN AS EXAMPLES IN MILLER

  V. CALIFORNIA, (413 U.S.,) AT 25.  SEE UNITED STATES V.

  THIRTY-SEVEN PHOTOGRAPHS, SUPRA, AT 369 - 374 (OPINION OF WHITE,

  J.).  OF COURSE, CONGRESS COULD ALWAYS DEFINE OTHER SPECIFIC

  'HARD CORE' CONDUCT."  413 U.S.,AT 130 N. 7. 

MILLER UNDERTOOK TO SET FORTH EXAMPLES OF THE TYPES OF MATERIAL
WHICH A STATUTE MIGHT PROSCRIBE AS PORTRAYING SEXUAL CONDUCT IN A
PATENTLY OFFENSIVE WAY, 413 U.S.,AT 25 - 26, AND WENT ON TO SAY THAT NO
ONE COULD BE PROSECUTED FOR THE "SALE OR EXPOSURE OF OBSCENE MATERIALS
UNLESS THESE MATERIALS DEPICT OR DESCRIBE PATENTLY OFFENSIVE 'HARD
CORE' SEXUAL CONDUCT SPECIFICALLY DEFINED BY THE REGULATING STATE LAW,
AS WRITTEN OR CONSTRUED."  ID., AT 27.  AS NOTED ABOVE, WE INDICATED IN
UNITED STATES V. 12 200-FT. REELS OF FILM, SUPRA, AT 130 N. 7, THAT WE
WERE PREPARED TO CONSTRUE THE GENERIC TERMS IN 18 U.S.C. 1462 TO BE
LIMITED TO THE SORT OF "PATENTLY OFFENSIVE REPRESENTATIONS OR
DESCRIPTIONS OF THAT SPECIFIC 'HARD CORE' SEXUAL CONDUCT GIVEN AS
EXAMPLES IN MILLER V. CALIFORNIA."  WE NOW SO CONSTRUE THE COMPANION
PROVISION IN 18 U.S.C. 1461, THE SUBSTANTIVE STATUTE UNDER WHICH THIS
PROSECUTION WAS BROUGHT.  AS SO CONSTRUED, WE DO NOT BELIEVE THAT
PETITIONERS' ATTACK ON THE STATUTE AS UNCONSTITUTIONALLY VAGUE CAN BE
SUSTAINED. 

MILLER, IN DESCRIBING THE TYPE OF MATERIAL WHICH MIGHT BE
CONSTITUTIONALLY PROSCRIBED, 413 U.S.,AT 25, WAS SPEAKING IN TERMS OF
SUBSTANTIVE CONSTITUTIONAL LAW OF THE FIRST AND FOURTEENTH AMENDMENTS. 
SEE JENKINS V. GEORGIA, POST, AT 160 - 161.  WHILE THE PARTICULAR
DESCRIPTIONS THERE CONTAINED WERE NOT INTENDED TO BE EXHAUSTIVE, THEY
CLEARLY INDICATE THAT THERE IS A LIMIT BEYOND WHICH NEITHER LEGISLATIVE
DRAFTSMEN NOR JURIES MAY GO IN CONCLUDING THAT PARTICULAR MATERIAL IS
"PATENTLY OFFENSIVE" WITHIN THE MEANING OF THE OBSCENITY TEST SET FORTH
IN THE MILLER CASES.  AND WHILE THE COURT IN MILLER DID REFER TO
"SPECIFIC PREREQUISITES" WHICH "WILL PROVIDE FAIR NOTICE TO A DEALER IN
SUCH MATERIALS," 413 U.S.,AT 27, THE COURT IMMEDIATELY THEREAFTER
QUOTED THE LANGUAGE OF THE COURT IN ROTH V. UNITED STATES, 354 U.S.,AT
491 - 492, CONCLUDING WITH THESE WORDS: 

"'THAT THERE MAY BE MARGINAL CASES IN WHICH IT IS DIFFICULT TO
DETERMINE THE SIDE OF THE LINE ON WHICH A PARTICULAR FACT SITUATION
FALLS IS NO SUFFICIENT REASON TO HOLD THE LANGUAGE TOO AMBIGUOUS TO
DEFINE A CRIMINAL OFFENSE.  . . .'"  413 U.S.,AT 28 N. 10. 

THE MILLER CASES, IMPORTANT AS THEY WERE IN ENUNCIATING A
CONSTITUTIONAL TEST FOR OBSCENITY TO WHICH A MAJORITY OF THE COURT
SUBSCRIBED FOR THE FIRST TIME IN A NUMBER OF YEARS, WERE INTENDED
NEITHER AS LEGISLATIVE DRAFTING HANDBOOKS NOR AS MANUALS OF JURY
INSTRUCTIONS.  TITLE 18 U.S.C. 1461 HAD BEEN INVULNERABLE TO A
CHALLENGE ON THE GROUND OF UNCONSTITUTIONAL VAGUENESS IN ROTH; THE
LANGUAGE OF ROTH WAS REPEATED IN MILLER, ALONG WITH A DESCRIPTION OF
THE TYPES OF MATERIAL WHICH COULD CONSTITUTIONALLY BE PROSCRIBED AND
THE ADJURATION THAT SUCH STATUTORY PROSCRIPTIONS BE MADE EXPLICIT
EITHER BY THEIR OWN LANGUAGE OR BY JUDICIAL CONSTRUCTION; AND UNITED
STATES V. 12 200-FT. REELS OF FILM, SUPRA, MADE CLEAR OUR WILLINGNESS
TO CONSTRUE FEDERAL STATUTES DEALING WITH OBSCENITY TO BE LIMITED TO
MATERIAL SUCH AS THAT DESCRIBED IN MILLER.  IT IS PLAIN FROM THE COURT
OF APPEALS'  DESCRIPTION OF THE BROCHURE INVOLVED HERE THAT IT IS A
FORM OF HARD-CORE PORNOGRAPHY WELL WITHIN THE TYPES OF PERMISSIBLY
PROSCRIBED DEPICTIONS DESCRIBED IN MILLER, AND WHICH WE NOW HOLD 1461
TO COVER.  WHATEVER COMPLAINT THE DISTRIBUTOR OF MATERIAL WHICH
PRESENTED A MORE DIFFICULT QUESTION OF OBSCENITY VEL NON MIGHT HAVE AS
TO THE LACK OF A PREVIOUS LIMITING CONSTRUCTION OF 18 U.S.C. 1461,
THESE PETITIONERS HAVE NONE.  SEE DENNIS V. UNITED STATES, 341 U.S.
494, 511 - 515 (1951) (OPINION OF VINSON, C. J.). 

NOR DO WE FIND MERIT IN PETITIONERS' CONTENTION THAT CASES SUCH AS
BOUIE V. CITY OF COLUMBIA, 378 U.S. 347 (1964), REQUIRE REVERSAL OF
THEIR CONVICTIONS.  THE COURT IN BOUIE HELD THAT SINCE THE CRIME FOR
WHICH THE PETITIONERS THERE STOOD CONVICTED WAS "NOT ENUMERATED IN THE
STATUTE" AT THE TIME OF THEIR CONDUCT, THEIR CONVICTION COULD NOT BE
SUSTAINED.  ID., AT 363.  THE COURT NOTED THAT "A DEPRIVATION OF THE
RIGHT OF FAIR WARNING CAN RESULT NOT ONLY FROM VAGUE STATUTORY LANGUAGE
BUT ALSO FROM AN UNFORESEEABLE AND RETROACTIVE JUDICIAL EXPANSION OF
NARROW AND PRECISE STATUTORY LANGUAGE."  ID., AT 352.  BUT THE
ENUMERATION OF SPECIFIC CATEGORIES OF MATERIAL IN MILLER WHICH MIGHT BE
FOUND OBSCENE DID NOT PURPORT TO MAKE CRIMINAL, FOR THE PURPOSE OF 18
U.S.C. 1461, CONDUCT WHICH HAD NOT PREVIOUSLY BEEN THOUGHT CRIMINAL. 
THAT REQUIREMENT INSTEAD ADDED A "CLARIFYING GLOSS" TO THE PRIOR
CONSTRUCTION AND THEREFORE MADE THE MEANING OF THE FEDERAL STATUTE
INVOLVED HERE "MORE DEFINITE" IN ITS APPLICATION TO FEDERAL OBSCENITY
PROSECUTIONS.  BOUIE V. CITY OF COLUMBIA, SUPRA, AT 353.  JUDGED BY
BOTH THE JUDICIAL CONSTRUCTION OF 1461 PRIOR TO MILLER, AND BY THE
CONSTRUCTION OF THAT SECTION WHICH WE ADOPT TODAY IN THE LIGHT OF
MILLER, PETITIONERS' CLAIMS OF VAGUENESS AND LACK OF FAIR NOTICE AS TO
THE PROSCRIPTION OF THE MATERIAL WHICH THEY WERE DISTRIBUTING MUST
FAIL.              C 

PETITIONERS' FINAL MILLER-BASED CONTENTION IS THAT OUR REJECTION OF
THE THIRD PART OF THE MEMOIRS TEST AND OUR REVISION OF THAT TEST IN
MILLER INDICATES THAT 18 U.S.C. 1461 WAS AT THE TIME OF THEIR
CONVICTIONS UNCONSTITUTIONALLY VAGUE FOR THE ADDITIONAL REASON THAT IT
PROVIDED INSUFFICIENT GUIDANCE TO THEM AS TO THE PROPER TEST OF "SOCIAL
VALUE."  BUT OUR OPINION IN MILLER PLAINLY INDICATES THAT WE REJECTED
THE MEMOIRS "SOCIAL VALUE" FORMULATION, NOT BECAUSE IT WAS SO VAGUE AS
TO DEPRIVE CRIMINAL DEFENDANTS OF ADEQUATE NOTICE, BUT INSTEAD BECAUSE
IT REPRESENTED A DEPARTURE FROM THE DEFINITION OF OBSCENITY IN ROTH,
AND BECAUSE IN CALLING ON THE PROSECUTION TO "PROVE A NEGATIVE," IT
IMPOSED A "(PROSECUTORIAL) BURDEN VIRTUALLY IMPOSSIBLE TO DISCHARGE"
AND WHICH WAS NOT CONSTITUTIONALLY REQUIRED.  413 U.S.,AT 22.  SINCE
MILLER PERMITS THE IMPOSITION OF A LESSER BURDEN ON THE PROSECUTION IN
THIS PHASE OF THE PROOF OF OBSCENITY THAN DID MEMOIRS, AND SINCE THE
JURY CONVICTED THESE PETITIONERS ON THE BASIS OF AN INSTRUCTION
CONCEDELY BASED ON THE MEMOIRS TEST, PETITIONERS DERIVE NO BENEFIT FROM
THE REVISION OF THAT TEST IN MILLER. 

        II 

PETITIONERS ATTACK THE SUFFICIENCY OF THE INDICTMENT UNDER WHICH
THEY WERE CHARGED FOR TWO REASONS:  FIRST, THAT IT CHARGED THEM ONLY IN
THE STATUTORY LANGUAGE OF 18 U.S.C. 1461, WHICH THEY CONTEND WAS
UNCONSTITUTIONALLY VAGUE AS APPLIED TO THEM; AND, SECOND, THAT THE
INDICTMENT FAILED TO GIVE THEM ADEQUATE NOTICE OF THE CHARGES AGAINST
THEM.  AS NOTED ABOVE, HOWEVER, AT THE TIME OF PETITIONERS'
CONVICTIONS, ROTH V. UNITED STATES HAD HELD THAT THE LANGUAGE OF 1461
WAS NOT "TOO VAGUE TO SUPPORT CONVICTION FOR CRIME."  354 U.S.,AT 480. 
SEE UNITED STATES V. REIDEL, 402 U.S.,AT 354. 

OUR PRIOR CASES INDICATE THAT AN INDICTMENT IS SUFFICIENT IF IT,
FIRST, CONTAINS THE ELEMENTS OF THE OFFENSE CHARGED AND FAIRLY INFORMS
A DEFENDANT OF THE CHARGE AGAINST WHICH HE MUST DEFEND, AND, SECOND,
ENABLES HIM TO PLEAD AN ACQUITTAL OR CONVICTION IN BAR OF FUTURE
PROSECUTIONS FOR THE SAME OFFENSE.  HAGNER V. UNITED STATES, 285 U.S.
427 (1932); UNITED STATES V. DEBROW, 346 U.S. 374 (1953).  IT IS
GENERALLY SUFFICIENT THAT AN INDICTMENT SET FORTH THE OFFENSE IN THE
WORDS OF THE STATUTE ITSELF, AS LONG AS "THOSE WORDS OF THEMSELVES
FULLY, DIRECTLY, AND EXPRESSLY, WITHOUT ANY UNCERTAINTY OR AMGIBUITY,
SET FORTH ALL THE ELEMENTS NECESSARY TO CONSTITUTE THE OFFENSE INTENDED
TO BE PUNISHED."  UNITED STATES V. CARLL, 105 U.S. 611, 612 (1882). 
"UNDOUBTEDLY THE LANGUAGE OF THE STATUTE MAY BE USED IN THE GENERAL
DESCRIPTION OF AN OFFENSE, BUT IT MUST BE ACCOMPANIED WITH SUCH A
STATEMENT OF THE FACTS AND CIRCUMSTANCES AS WILL INFORM THE ACCUSED OF
THE SPECIFIC OFFENCE, COMING UNDER THE GENERAL DESCRIPTION, WITH WHICH
HE IS CHARGED."  UNITED STATES V. HESS, 124 U.S. 483, 487 (1888). 

RUSSELL V. UNITED STATES, 369 U.S. 749 (1962), RELIED UPON BY
PETITIONERS, DOES NOT REQUIRE A FINDING THAT THE INDICTMENT HERE IS
INSUFFICIENT.  IN RUSSELL, THE INDICTMENT RECITED THE PROSCRIPTION OF 2
U.S.C. 192, AND CHARGED THAT THE DEFENDANTS HAD REFUSED TO ANSWER
QUESTIONS THAT "WERE PERTINENT TO THE QUESTION THEN UNDER INQUIRY" BY A
COMMITTEE OF CONGRESS.  IN HOLDING THAT THE INDICTMENT WAS INSUFFICIENT
BECAUSE IT DID NOT STATE THE SUBJECT WHICH WAS UNDER INQUIRY, THIS
COURT STATED: 

"(THE VERY CORE OF CRIMINALITY UNDER 2 U.S.C. 192 IS PERTINENCY TO
THE SUBJECT UNDER INQUIRY OF THE QUESTIONS WHICH THE DEFENDANT REFUSED
TO ANSWER.  WHAT THE SUBJECT ACTUALLY WAS, THEREFORE, IS CENTRAL TO
EVERY PROSECUTION UNDER THE STATUTE.  WHERE GUILT DEPENDS SO CRUCIALLY
UPON SUCH A SPECIFIC IDENTIFICATION OF FACT, OUR CASES HAVE UNIFORMLY
HELD THAT AN INDICTMENT MUST DO MORE THAN SIMPLY REPEAT THE LANGUAGE OF
THE CRIMINAL STATUTE."  369 U.S.,AT 764 (EMPHASIS ADDED). 

THE DEFINITION OF OBSCENITY, HOWEVER, IS NOT A QUESTION OF FACT, BUT
ONE OF LAW; THE WORD "OBSCENE," AS USED IN 18 U.S.C. 1461, IS NOT
MERELY A GENERIC OR DESCRIPTIVE TERM, BUT A LEGAL TERM OF ART. SEE ROTH
V. UNITED STATES, 354 U.S.,AT 487 - 488; MANUAL ENTERPRISES, INC. V.
DAY, 370 U.S.,AT 482 - 487 (OPINION OF HARLAN, J.); UNITED STATES V.
THEVIS, 484 F.2D 1149, 1152 (CA5 1973), CERT. PENDING, NO. 73 - 1075;
UNITED STATES V. LUROS, 243 F.SUPP.  160, 167 (ND IOWA), CERT. DENIED,
382 U.S. 956 (1965).  THE LEGAL DEFINITION OF OBSCENITY DOES NOT CHANGE
WITH EACH INDICTMENT; IT IS A TERM SUFFICIENTLY DEFINITE IN LEGAL
MEANING TO GIVE A DEFENDANT NOTICE OF THE CHARGE AGAINST HIM.  ROTH V.
UNITED STATES, SUPRA, AT 491 - 492; MANUAL ENTERPRISES, INC. V. DAY,
SUPRA, AT 482 - 487 (OPINION OF HARLAN, J.).  SINCE THE VARIOUS
COMPONENT PARTS OF THE CONSTITUTIONAL DEFINITION OF OBSCENITY NEED NOT
BE ALLEGED IN THE INDICTMENT IN ORDER TO ESTABLISH ITS SUFFICIENCY, THE
INDICTMENT IN THIS CASE WAS SUFFICIENT TO ADEQUATELY INFORM PETITIONERS
OF THE CHARGES AGAINST THEM.  /12/ 

PETITIONERS ALSO CONTEND THAT IN ORDER FOR THEM TO BE CONVICTED
UNDER 18 U.S.C. 1461 FOR THE CRIME OF MAILING OBSCENE MATERIALS, THE
GOVERNMENT MUST PROVE THAT THEY KNEW THE MATERIALS MAILED WERE
OBSCENE.  THAT STATUTE PROVIDES IN PERTINENT PART THAT "(WHOEVER
KNOWINGLY USES THE MAILS FOR THE MAILING . . . OF ANYTHING DECLARED BY
THIS SECTION . . . TO BE NONMAILABLE . . ."  IS GUILTY OF THE
PROSCRIBED OFFENSE.  CONSISTENT WITH THE STATUTE, THE DISTRICT COURT
INSTRUCTED THE JURY, INTER ALIA, THAT IN ORDER TO PROVE SPECIFIC INTENT
ON THE PART OF THESE PETITIONERS, THE GOVERNMENT HAD TO DEMONSTRATE
THAT PETITIONERS "KNEW THE ENVELOPES AND PACKAGES CONTAINING THE
SUBJECT MATERIALS WERE MAILED OR PLACE . . . IN INTERSTATE COMMERCE,
AND . . . THAT THEY HAD KNOWLEDGE OF THE CHARACTER OF THE MATERIALS." 
APP. 236.  THE DISTRICT COURT FURTHER INSTRUCTED THAT THE
"(PETITIONERS') BELIEF AS TO THE OBSCENITY OR NON-OBSCENITY OF THE
MATERIAL IS IRRELEVANT."  IBID. 

PETITIONERS CONTEND THAT THIS INSTRUCTION WAS IMPROPER AND THAT
PROOF OF SCIENTER IN OBSCENITY PROSECUTIONS REQUIRES, "AT THE VERY
LEAST, PROOF BOTH OF KNOWLEDGE OF THE CONTENTS OF THE MATERIAL AND
AWARENESS OF THE OBSCENE CHARACTER OF THE MATERIAL."  BRIEF FOR
PETITIONER KEMP 31 - 32.  IN SUPPORT OF THIS CONTENTION, PETITIONERS
URGE, AS THEY MUST, THAT WE OVERRULE OUR PRIOR DECISION IN ROSEN V.
UNITED STATES, 161 U.S. 29 (1896).  WE DECLINE THAT INVITATION, AND
HOLD THAT THE DISTRICT COURT IN THIS CASE PROPERLY INSTRUCTED THE JURY
ON THE QUESTION OF SCIENTER. 

IN ROSEN V. UNITED STATES, SUPRA, THIS COURT WAS FACED WITH THE
QUESTION OF WHETHER, UNDER A FORERUNNER STATUTE TO THE PRESENT 18
U.S.C. 1461, SEE REV. STAT. 3893, 19 STAT. 90, C. 186, A CHARGE OF
MAILING OBSCENE MATERIAL MUST BE SUPPORTED BY EVIDENCE THAT A DEFENDANT
"KNEW OR BELIEVED THAT SUCH (MATERIAL) COULD BE PROPERLY OR JUSTLY
CHARACTERIZED AS OBSCENE.  . . ."  161 U.S.,AT 41.  THE COURT REJECTED
THIS CONTENTION, STATING: 

"THE STATUTE IS NOT TO BE SO INTERPRETED.  THE INQUIRY UNDER THE
STATUTE IS WHETHER THE PAPER CHARGED TO HAVE BEEN OBSCENE, LEWD, AND
LASCIVIOUS WAS IN FACT OF THAT CHARACTER, AND IF IT WAS OF THAT
CHARACTER AND WAS DEPOSITED IN THE MAIL BY ONE WHO KNEW OR HAD NOTICE
AT THE TIME OF ITS CONTENTS, THE OFFENSE IS COMPLETE, ALTHOUGH THE
DEFENDANT HIMSELF DID NOT REGARD THE PAPER AS ONE THAT THE STATUTE
FORBADE TO BE CARRIED IN THE MAILS.  CONGRESS DID NOT INTEND THAT THE
QUESTION AS TO THE CHARACTER OF THE PAPER SHOULD DEPEND UPON THE
OPINION OR BELIEF OF THE PERSON WHO, WITH KNOWLEDGE OR NOTICE OF ITS
CONTENTS, ASSUMED THE RESPONSIBILITY OF PUTTING IT IN THE MAILS OF THE
UNITED STATES.  THE EVILS THAT CONGRESS SOUGHT TO REMEDY WOULD CONTINUE
AND INCREASE IN VOLUME IF THE BELIEF OF THE ACCUSED AS TO WHAT WAS
OBSCENE, LEWD, AND LASCIVIOUS WAS RECOGNIZED AS THE TEST FOR
DETERMINING WHETHER THE STATUTE HAS BEEN VIOLATED."  ID., AT 41 - 42. 
OUR SUBSEQUENT CASES HAVE NOT RETREATED FROM THIS GENERAL RULE, EITHER
AS A MATTER OF STATUTORY OR CONSTITUTIONAL INTERPRETATION, NOR HAVE
THEY PURPORTED TO HOLD THAT THE PROSECUTION MUST PROVE A DEFENDANT'S
KNOWLEDGE OF THE LEGAL STATUS OF THE MATERIALS HE DISTRIBUTES. 

IN SMITH V. CALIFORNIA, 361 U.S. 147 (1959), THIS COURT WAS FACED
WITH A CHALLENGE TO THE CONSTITUTIONALITY OF A LOS ANGELES ORDINANCE
WHICH HAD BEEN CONSTRUED BY THE STATE COURTS AS MAKING THE PROPRIETOR
OF A BOOKSTORE ABSOLUTELY LIABLE CRIMINALLY FOR THE MERE POSSESSION IN
HIS STORE OF A BOOK LATER JUDICIALLY DETERMINED TO BE OBSCENE, EVEN
THOUGH HE HAD NO KNOWLEDGE OF THE CONTENTS OF THE BOOK.  THE COURT HELD
THAT THE ORDINANCE COULD NOT CONSTITUTIONALLY ELIMINATE ALTOGETHER A
SCIENTER REQUIREMENT, AND THAT, IN ORDER TO BE CONSTITUTIONALLY APPLIED
TO A BOOK DISTRIBUTOR, IT MUST BE SHOWN THAT HE HAD "KNOWLEDGE OF THE
CONTENTS OF THE BOOK."  ID., AT 153.  THE COURT FURTHER NOTED THAT "(WE
NEED NOT AND MOST DEFINITELY DO NOT PASS TODAY ON WHAT SORT OF MENTAL
ELEMENT IS REQUISITE TO A CONSTITUTIONALLY PERMISSIBLE PROSECUTION OF A
BOOKSELLER FOR CARRYING AN OBSCENE BOOK IN STOCK."  ID., AT 154. 

SMITH DOES NOT SUPPORT PETITIONERS' CLAIM IN THIS CASE, SINCE IT
DEALT WITH AN ORDINANCE WHICH TOTALLY DISPENSED WITH ANY PROOF OF
SCIENTER ON THE PART OF THE DISTRIBUTOR OF OBSCENE MATERIAL.  NOR DID
THE COURT'S DECISION IN MANUAL ENTERPRISES, INC. V. DAY, SUPRA, ALSO
RELIED UPON BY PETITIONERS, SUGGEST OTHERWISE.  THERE MR. JUSTICE
HARLAN'S OPINION, RECOGNIZING THAT SCIENTER WAS REQUIRED FOR A CRIMINAL
PROSECUTION UNDER 18 U.S.C. 1461, REJECTED THE GOVERNMENT'S CONTENTION
THAT SUCH A REQUIREMENT WAS UNNECESSARY IN AN ADMINISTRATIVE
DETERMINATION BY THE POST OFFICE DEPARTMENT THAT CERTAIN MATERIALS WERE
NONMAILABLE UNDER THAT SECTION.  THAT OPINION CONCLUDED THAT THE
OBSCENE ADVERTISING PROSCRIPTION OF THE FEDERAL STATUTE WAS NOT
APPLICABLE IN SUCH AN ADMINISTRATIVE DETERMINATION UNLESS THE PUBLISHER
OF THE MATERIAL KNEW THAT AT LEAST SOME OF HIS ADVERTISERS WERE
OFFERING TO SELL OBSCENE MATERIAL.  SUCH PROOF WAS DEEMED LACKING AND
THEREFORE THE PUBLISHERS COULD NOT BE ADMINISTRATIVELY PROHIBITED FROM
MAILING THE PUBLICATIONS.  /13/ 

SIGNIFICANTLY, A SUBSTANTIALLY SIMILAR CLAIM TO THE INSTANT ONE WAS
REJECTED BY THIS COURT IN MISHKIN V. NEW YORK, 383 U.S. 502 (1966).  IN
EXAMINING A NEW YORK STATUTE, THE COURT THERE NOTED THAT THE NEW YORK
COURT OF APPEALS HAD "AUTHORITATIVELY INTERPRETED" THE STATUTORY
PROVISION TO REQUIRE THE "VITAL ELEMENT OF SCIENTER" AND THAT IT HAD
DEFINED THE REQUIRED MENTAL ELEMENT AS FOLLOWS: 

"'A READING OF THE (NEW YORK) STATUTE . . . AS A WHOLE CLEARLY
INDICATES THAT ONLY THOSE WHO ARE IN SOME MANNER AWARE OF THE CHARACTER
OF THE MATERIAL THEY ATTEMPT TO DISTRIBUTE SHOULD BE PUNISHED.  IT IS
NOT INNOCENT BUT CALCULATED PURVEYANCE OF FILTH WHICH IS EXORCISED.  .
. ."  ID., AT 510 (EMPHASIS IN ORIGINAL), QUOTING FROM PEOPLE V.
FINKELSTEIN, 9 N.Y.2D 342, 344 - 345, 174 N.E.2D 470, 471 (1961).  THE
COURT EMPHASIZED THAT THIS CONSTRUCTION OF THE NEW YORK STATUTE
"FORECLOSED" THE DEFENDANT'S CHALLENGE TO THE STATUTE BASED ON SMITH V.
CALIFORNIA, SUPRA, AND STATED: 

"THE CONSTITUTION REQUIRES PROOF OF SCIENTER TO AVOID THE HAZARD OF
SELF-CENSORSHIP OF CONSTITUTIONALLY PROTECTED MATERIAL AND TO
COMPENSATE FOR THE AMBIGUITIES INHERENT IN THE DEFINITION OF
OBSCENITY.  THE NEW YORK DEFINITION OF THE SCIENTER REQUIRED BY (THE
NEW YORK STATUTE) AMPLY SERVES THOSE ENDS, AND THEREFORE FULLY MEETS
THE DEMANDS OF THE CONSTITUTION.  CF. ROTH V. UNITED STATES, 354
U.S.,AT 495 - 496 (WARREN, C. J., CONCURRING)."  383 U.S.,AT 511. 

THE MISHKIN HOLDING WAS REAFFIRMED IN GINSBERG V. NEW YORK, 390 U.S.
629 (1968).  THERE THE COURT WAS AGAIN FACED WITH THE SUFFICIENCY OF
THE SCIENTER REQUIREMENT OF ANOTHER NEW YORK STATUTE, WHICH PROSCRIBED
THE "KNOWING"  DISTRIBUTION OF OBSCENE MATERIALS TO MINORS. 
"KNOWINGLY" WAS DEFINED IN THE STATUTE AS "KNOWLEDGE"  OF, OR "REASON
TO KNOW" OF THE CHARACTER AND CONTENT OF THE MATERIAL.  CITING MISHKIN,
AND THE NEW YORK COURT OF APPEALS' CONSTRUCTION OF THE OTHER SIMILAR
STATUTORY LANGUAGE, THE COURT REJECTED THE CHALLENGE TO THE SCIENTER
PROVISION. 

WE THINK THE "KNOWINGLY" LANGUAGE OF 18 U.S.C. 1461, AND THE
INSTRUCTIONS GIVEN BY THE DISTRICT COURT IN THIS CASE SATISFIED THE
CONSTITUTIONAL REQUIREMENTS OF SCIENTER.  IT IS CONSTITUTIONALLY
SUFFICIENT THAT THE PROSECUTION SHOW THAT A DEFENDANT HAD KNOWLEDGE OF
THE CONTENTS OF THE MATERIALS HE DISTRIBUTED, AND THAT HE KNEW THE
CHARACTER AND NATURE OF THE MATERIALS.  TO REQUIRE PROOF OF A
DEFENDANT'S KNOWLEDGE OF THE LEGAL STATUS OF THE MATERIALS WOULD PERMIT
THE DEFENDANT TO AVOID PROSECUTION BY SIMPLY CLAIMING THAT HE HAD NOT
BRUSHED UP ON THE LAW.  SUCH A FORMULATION OF THE SCIENTER REQUIREMENT
IS REQUIRED NEITHER BY THE LANGUAGE OF 18 U.S.C. 1461 NOR BY THE
CONSTITUTION. 

"WHENEVER THE LAW DRAWS A LINE THERE WILL BE CASES VERY NEAR EACH
OTHER ON OPPOSITE SIDES.  THE PRECISE COURSE OF THE LINE MAY BE
UNCERTAIN, BUT NO ONE CAN COME NEAR IT WITHOUT KNOWING THAT HE DOES SO,
IF HE THINKS, AND IF HE DOES SO IT IS FAMILIAR TO THE CRIMINAL LAW TO
MAKE HIM TAKE THE RISK."  UNITED STATES V. WURZBACH, 280 U.S. 396, 399
(1930). 

PETITIONERS ALSO MAKE A BROAD ATTACK ON THE SUFFICIENCY OF THE
EVIDENCE.  THE GENERAL RULE OF APPLICATION IS THAT "(THE VERDICT OF A
JURY MUST BE SUSTAINED IF THERE IS SUBSTANTIAL EVIDENCE, TAKING THE
VIEW MOST FAVORABLE TO THE GOVERNMENT, TO SUPPORT IT."  GLASSER V.
UNITED STATES, 315 U.S. 60, 80 (1942).  THE PRIMARY RESPONSIBILITY FOR
REVIEWING THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT A CRIMINAL
CONVICTION RESTS WITH THE COURT OF APPEALS, WHICH IN THIS CASE HELD
THAT THE GOVERNMENT HAD SATISFIED ITS BURDEN.  WE AGREE.  BASED ON THE
EVIDENCE BEFORE IT, THE JURY WAS ENTITLED TO CONCLUDE THAT THE
INDIVIDUAL PETITIONERS, AS CORPORATE OFFICIALS DIRECTLY CONCERNED WITH
THE ACTIVITIES OF THEIR ORGANIZATIONS, WERE AWARE OF THE MAIL
SOLICITATION SCHEME, AND OF THE CONTENTS OF THE BROCHURE.  THE EVIDENCE
IS LIKEWISE SUFFICIENT TO ESTABLISH THE EXISTENCE OF A CONSPIRACY TO
MAIL THE OBSCENE BROCHURE.  THE EXISTENCE OF AN AGREEMENT MAY BE SHOWN
BY CIRCUMSTANCES INDICATING THAT CRIMINAL DEFENDANTS ACTED IN CONCERT
TO ACHIEVE A COMMON GOAL.  SEE, E.G., BLUMENTHAL V. UNITED STATES, 332
U.S. 539, 556 - 558 (1947). 

        III 

WE TURN NOW TO PETITIONERS' ATTACK ON CERTAIN EVIDENTIARY RULINGS OF
THE DISTRICT COURT.  PETITIONERS HAVE VERY MUCH THE LABORING OAR IN
SHOWING THAT SUCH RULINGS CONSTITUTE REVERSIBLE ERROR, SINCE "IN
JUDICIAL TRIALS, THE WHOLE TENDENCY IS TO LEAVE RULINGS AS TO THE
ILLUMINATING RELEVANCE OF TESTIMONY LARGELY TO THE DISCRETION OF THE
TRIAL COURT THAT HEARS THE EVIDENCE."  NLRB V. DONNELLY CO., 330 U.S.
219, 236 (1947); MICHELSON V. UNITED STATES, 335 U.S. 469, 480 (1948);
SALEM V. UNITED STATES LINES CO., 370 U.S. 31, 35 (1962). 

PETITIONERS OFFERED IN EVIDENCE AT TRIAL THREE CATEGORIES OF
ALLEGEDLY COMPARABLE MATERIALS ARGUED TO BE RELEVANT TO COMMUNITY
STANDARDS:  (1) MATERIALS WHICH HAD RECEIVED SECOND-CLASS MAILING
PRIVILEGES; (2) MATERIALS WHICH HAD PREVIOUSLY BEEN THE SUBJECT OF
LITIGATION AND HAD BEEN FOUND TO BE "CONSTITUTIONALLY PROTECTED"; AND
(3) MATERIALS OPENLY AVAILABLE ON THE NEWSTANDS.  THE DISTRICT COURT,
AFTER EXAMINING THE MATERIALS, REFUSED TO ADMIT THEM INTO EVIDENCE ON
THE GROUNDS THAT "THEY TEND TO CONFUSE THE JURY" AND "WOULD SERVE NO
PROBATIVE VALUE IN COMPARISON TO THE AMOUNT OF CONFUSION AND DELUGE OF
MATERIAL THAT COULD RESULT THEREFROM."  APP. 158.  THE COURT OF APPEALS
CONCLUDED THAT THE DISTRICT COURT WAS CORRECT IN REJECTING THE
PROFFERED EVIDENCE, STATING THAT ANY ABUSE OF DISCRETION IN REFUSING TO
ADMIT THE MATERIALS THEMSELVES HAD BEEN "CURED BY THE DISTRICT COURT'S
OFFER TO ENTERTAIN EXPERT TESTIMONY WITH RESPECT TO THE ELEMENTS TO BE
SHOWN FOR THE ADVICE OF THE JURY."  481 F.2D,AT 320.  HERE THE DISTRICT
COURT PERMITTED FOUR EXPERT WITNESSES CALLED BY PETITIONERS TO TESTIFY
EXTENSIVELY CONCERNING THE RELEVANT COMMUNITY STANDARDS. 

THE DEFENDANT IN AN OBSCENITY PROSECUTION, JUST AS A DEFENDANT IN ANY
OTHER PROSECUTION, IS ENTITLED TO AN OPPORTUNITY TO ADDUCE RELEVANT,
COMPETENT EVIDENCE BEARING ON THE ISSUES TO BE TRIED.  BUT THE
AVAILABILITY OF SIMILAR MATERIALS ON THE NEWSSTANDS OF THE COMMUNITY
DOES NOT AUTOMATICALLY MAKE THEM ADMISSIBLE AS TENDING TO PROVE THE
NONOBSCENITY OF THE MATERIALS WHICH THE DEFENDANTS IS CHARGED WITH
CIRCULATING.  AS STATED BY THE COURT OF APPEALS, THE MERE FACT THAT
MATERIALS SIMILAR TO THE BROCHURE AT ISSUE HERE "ARE FOR SALE AND
PURCHASED AT BOOK STORES AROUND THE COUNTRY DOES NOT MAKE THEM
WITNESSES OF VIRTUE."  IBID.  OR, AS PUT BY THE COURT OF APPEALS IN
UNITED STATES V. MANARITE, 448 F.2D 583 (CA2 1971): 

"MERE AVAILABILITY OF SIMILAR MATERIAL BY ITSELF MEANS NOTHING MORE
THAN THAT OTHER PERSONS ARE ENGAGED IN SIMILAR ACTIVITIES."  ID., AT
593. 

NOR DO WE THINK THE DISTRICT COURT ERRED IN REFUSING PETITIONERS'
OFFER OF A MAGAZINE WHICH HAD RECEIVED A SECOND-CLASS MAILING
PRIVILEGE.  /14/  WHILE FEDERAL LAW, SEE FORMER 39 U.S.C. 4354 (1964
ED.); 39 CFR PT. 132 (1973), MAY LAY DOWN CERTAIN STANDARDS FOR THE
ISSUANCE OF A SECOND-CLASS MAILING PERMIT, THIS COURT HAS HELD THAT
THESE STANDARDS GIVE POSTAL INSPECTORS NO POWER OF CENSORSHIP. 
HANNEGAN V. ESQUIRE, INC., 327 U.S. 146 (1946).  THE MERE FACT THAT A
PUBLICATION HAS ACQUIRED A SECOND-CLASS MAILING PRIVILEGE DOES NOT
THEREFORE CREATE ANY PRESUMPTION THAT IT IS NOT OBSCENE. 

FINALLY, WE DO NOT THINK THE DISTRICT COURT ABUSED ITS DISCRETION IN
REFUSING TO ADMIT CERTAIN ALLEGEDLY COMPARABLE MATERIALS, A FILM AND
TWO MAGAZINES, /15/ WHICH HAD BEEN FOUND TO BE NONOBSCENE BY THIS
COURT.  SEE PINKUS V. PITCHESS, 429 F.2D 416 (CA9), AFF'D SUB NOM.
CALIFORNIA V. PINKUS, 400 U.S. 922 (1970); BURGIN V. SOUTH CAROLINA,
404 U.S. 806 (1971), REV'G 255 S.C. 237, 178 S.E.2D 325 (1970).  A
JUDICIAL DETERMINATION THAT PARTICULAR MATTERS ARE NOT OBSCENE DOES NOT
NECESSARILY MAKE THEM RELEVANT TO THE DETERMINATION OF THE OBSCENITY OF
OTHER MATERIALS, MUCH LESS MANDATE THEIR ADMISSION INTO EVIDENCE. 

MUCH OF THE MATERIAL OFFERED BY PETITIONERS WAS NOT OF DEMONSTRATED
RELEVANCE TO THE ISSUES IN THIS CASE.  SUCH OF IT THAT MAY HAVE BEEN
CLEARLY RELEVANT WAS SUBJECT TO THE DISTRICT COURT'S OBSERVATION THAT
IT WOULD TEND TO CREATE MORE CONFUSION THAN ENLIGHTENMENT IN THE MINDS
OF THE JURY, AND TO THE COURT'S EXPRESSED WILLINGNESS TO PERMIT THE
SAME MATERIAL TO BE TREATED IN THE TESTIMONY OF EXPERT WITNESSES.  THE
DISTRICT COURT RETAINS CONSIDERABLE LATITUDE EVEN WITH ADMITTEDLY
RELEVANT EVIDENCE IN REJECTING THAT WHICH IS CUMULATIVE, AND IN
REQUIRING THAT WHICH IS TO BE BROUGHT TO THE JURY'S ATTENTION TO BE
DONE SO IN A MANNER LEAST LIKELY TO CONFUSE THAT BODY.  WE AGREE WITH
THE COURT OF APPEALS THAT THE DISTRICT COURT'S DISCRETION WAS NOT
ABUSED.  /16/ 

PETITIONERS' SECOND CONTENTION IS THAT THE DISTRICT COURT ERRED IN
INSTRUCTING THE JURY AS TO THE DETERMINATION OF THE PRURIENT APPEAL OF
THE BROCHURE.  AT THE TRIAL, THE GOVERNMENT INTRODUCED, OVER
PETITIONERS' OBJECTION, TESTIMONY FROM AN EXPERT WITNESS THAT THE
MATERIAL IN THE ILLUSTRATED REPORT APPEALED TO THE PRURIENT INTEREST OF
VARIOUS DEVIANT SEXUAL GROUPS.  /17/  THE TESTIMONY CONCERNING THE
BROCHURE WAS THAT IT APPEALED TO A PRURIENT INTEREST IN GENERAL, AND
NOT SPECIFICALLY TO SOME DEVIANT GROUP.  PETITIONERS CONCEDE, HOWEVER,
THAT EACH OF THE PICTURES SAID TO APPEAL TO DEVIANT GROUPS DID IN FACT
APPEAR IN THE BROCHURE.  /18/  THE DISTRICT COURT ACCORDINGLY
INSTRUCTED THE JURY THAT IN DECIDING WHETHER THE PREDOMINANT APPEAL OF
THE ILLUSTRATED REPORT AND THE BROCHURE WAS TO A PRURIENT INTEREST IN
SEX, IT COULD CONSIDER WHETHER SOME PORTIONS OF THOSE MATERIALS
APPEALED TO A PRURIENT INTEREST OF A SPECIFICALLY DEFINED DEVIANT GROUP
AS WELL AS WHETHER THEY APPEALED TO THE PRURIENT INTEREST OF THE
AVERAGE PERSON.  APP. 239 - 241.  THE COURT OF APPEALS FOUND NO ERROR
IN THE INSTRUCTION, SINCE IT WAS "MANIFEST THAT THE DISTRICT COURT
CONSIDERED THAT SOME OF THE PORTRAYALS IN THE BROCHURE MIGHT BE FOUND
TO HAVE A PRURIENT APPEAL" TO A DEVIANT GROUP.  481 F.2D,AT 321. 

PETITIONERS CONTEND THAT THE DISTRICT COURT'S INSTRUCTION WAS
IMPROPER BECAUSE IT ALLOWED THE JURY TO MEASURE THE BROCHURE BY ITS
APPEAL TO THE PRURIENT INTEREST NOT ONLY OF THE AVERAGE PERSON BUT ALSO
OF A CLEARLY DEFINED DEVIANT GROUP.  OUR DECISION IN MISHKIN V. NEW
YORK, 383 U.S. 502 (1966), CLEARLY INDICATES THAT IN MEASURING THE
PRURIENT APPEAL OF ALLEGEDLY OBSCENE MATERIALS, I.E., WHETHER THE
"DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO A PRURIENT
INTEREST IN SEX,"  CONSIDERATION MAY BE GIVEN TO THE PRURIENT APPEAL OF
THE MATERIAL TO CLEARLY DEFINED DEVIANT SEXUAL GROUPS.  PETITIONERS
APPEAR TO ARGUE THAT IF SOME OF THE MATERIAL APPEALS TO THE PRURIENT
INTEREST OF SEXUAL DEVIANTS WHILE OTHER PARTS APPEAL TO THE PRURIENT
INTEREST OF THE AVERAGE PERSON, A GENERAL FINDING THAT THE MATERIAL
APPEALS TO A PRURIENT INTEREST IN SEX IS SOMEHOW PRECLUDED.  BUT WE
STATED IN MISHKIN V. NEW YORK: 

     "WHERE THE MATERIAL IS DESIGNED FOR AND PRIMARILY DISSEMINATED

  TO A CLEARLY DEFINED DEVIANT SEXUAL GROUP, RATHER THAN THE PUBLIC

  AT LARGE, THE PRURIENT-APPEAL REQUIREMENT OF THE ROTH TEST IS

  SATISFIED IF THE DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE

  APPEALS TO THE PRURIENT INTEREST IN SEX OF THE MEMBERS OF THAT

  GROUP.  THE REFERENCE TO THE 'AVERAGE' OR 'NORMAL' PERSON IN

  ROTH, 354 U.S.,AT 489 - 490, DOES NOT FORECLOSE THIS HOLDING.  .
.

  . WE ADJUST THE PRURIENT-APPEAL REQUIREMENT TO SOCIAL REALITIES

  BY PERMITTING THE APPEAL OF THIS TYPE OF MATERIAL TO BE ASSESSED

  IN TERMS OF THE SEXUAL INTERESTS OF ITS INTENDED AND PROBABLE

RECIPIENT GROUP; AND SINCE OUR HOLDING REQUIRES THAT THE

 RECIPIENT GROUP BE DEFINED WITH MORE SPECIFICITY THAN IN TERMS OF

  SEXUALLY IMMATURE PERSONS, IT ALSO AVOIDS THE INADEQUACY OF THE

  MOST-SUSCEPTIBLE-PERSON FACET OF THE (REGINA V.)  HICKLIN ((1868)

  L.R. 3 Q.B. 360) TEST."  383 U.S.,AT 508 - 509 (FOOTNOTES

  OMITTED). 

THE DISTRICT COURT'S INSTRUCTION WAS CONSISTENT WITH THIS STATEMENT IN
MISHKIN.  THE JURY WAS INSTRUCTED THAT IT MUST FIND THAT THE MATERIALS
AS A WHOLE APPEALED GENERALLY TO A PRURIENT INTEREST IN SEX.  IN MAKING
THAT DETERMINATION, THE JURY WAS PROPERLY INSTRUCTED THAT IT SHOULD
MEASURE THE PRURIENT APPEAL OF THE MATERIALS AS TO ALL GROUPS.  SUCH AN
INSTRUCTION WAS ALSO CONSISTENT WITH OUR RECENT DECISION IN THE MILLER
CASES.  WE STATED IN MILLER: 

"AS THE COURT MADE CLEAR IN MISHKIN V. NEW YORK, 383 U.S.,AT 508 -
509, THE PRIMARY CONCERN WITH REQUIRING A JURY TO APPLY THE STANDARD OF
'THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS' IS TO
BE CERTAIN THAT, SO FAR AS MATERIAL IS NOT AIMED AT A DEVIANT GROUP, IT
WILL BE JUDGED BY ITS IMPACT ON AN AVERAGE PERSON, RATHER THAN A
PARTICULARLY SUSCEPTIBLE OR SENSITIVE PERSON--OR INDEED A TOTALLY
INSENSITIVE ONE."  413 U.S.,AT 33 (EMPHASIS ADDED). 

FINALLY, WE SIMILARLY THINK PETITIONERS' CHALLENGE TO THE PANDERING
INSTRUCTION GIVEN BY THE DISTRICT COURT IS WITHOUT MERIT.  THE DISTRICT
COURT INSTRUCTED THE JURORS THAT THEY MUST APPLY THE THREE-PART TEST OF
THE PLURALITY OPINION IN MEMOIRS V. MASSACHUSETTS, 383 U.S.,AT 418, AND
THEN INDICATED THAT THE JURY COULD, IN APPLYING THAT TEST, IF IT FOUND
THE CASE TO BE CLOSE, ALSO CONSIDER WHETHER THE MATERIALS HAD BEEN
PANDERED, BY LOOKING TO THEIR "(MANNER OF DISTRIBUTION, CIRCUMSTANCES
OF PRODUCTION, SALE, . . . ADVERTISING . . . (AND) EDITORIAL INTENT.  .
. ."  APP. 245.  THIS INSTRUCTION WAS GIVEN WITH RESPECT TO BOTH THE
ILLUSTRATED REPORT AND THE BROCHURE WHICH ADVERTISED IT, BOTH OF WHICH
WERE AT ISSUE IN THE TRIAL. 

PETITIONERS CONTEND THAT THE INSTRUCTION WAS IMPROPER ON THE FACTS
ADDUCED BELOW AND THAT IT CAUSED THEM TO BE "CONVICTED" OF PANDERING. 
PANDERING WAS NOT CHARGED IN THE INDICTMENT OF THE PETITIONERS, BUT IT
IS NOT, OF COURSE, AN ELEMENT OF THE OFFENSE OF MAILING OBSCENE MATTER
UNDER 18 U.S.C. 1461.  THE DISTRICT COURT'S INSTRUCTION WAS CLEARLY
CONSISTENT WITH OUR DECISION IN GINZBURG V. UNITED STATES, 383 U.S. 463
(1966), WHICH HELD THAT EVIDENCE OF PANDERING COULD BE RELEVANT IN THE
DETERMINATION OF THE OBSCENITY OF THE MATERIALS AT ISSUE, AS LONG AS
THE PROPER CONSTITUTIONAL DEFINITION OF OBSCENITY IS APPLIED.  NOR DOES
THE ENACTMENT BY CONGRESS OF 39 U.S.C. 3008, ENABLING THE POSTAL
SERVICE TO CEASE FORWARDING PANDERING ADVERTISEMENTS AT THE REQUEST OF
AN ADDRESSEE, AUTHORIZE, AS CONTENDED BY PETITIONERS, THE PANDERING OF
OBSCENE ADVERTISEMENTS.  THAT STATUTE SIMPLY GIVES A POSTAL RECIPIENT
THE MEANS TO INSULATE HIMSELF FROM ADVERTISEMENTS WHICH OFFER FOR SALE
MATTER "WHICH THE ADDRESSEE IN HIS SOLE DISCRETION BELIEVES TO BE
EROTICALLY AROUSING OR SEXUALLY PROVOCATIVE," BY INSTRUCTING THE POST
OFFICE TO ORDER THE SENDER TO REFRAIN FROM MAILING ANY FURTHER
ADVERTISEMENTS TO HIM.  SEE ROWAN V. U.S. POST OFFICE DEPT., 397 U.S.
728 (1970).  THE STATUTE DOES NOT PURPORT TO AUTHORIZE THE MAILING OF
LEGALLY OBSCENE PANDERING ADVERTISEMENTS, WHICH CONTINUES TO BE
PROSCRIBED BY 18 U.S.C. 1461.  SEE 39 U.S.C. 3011(E). 

        IV 

PETITIONERS' FINAL CONTENTIONS ARE DIRECTED AT ALLEGED PROCEDURAL
IRREGULARITIES SAID TO HAVE OCCURRED DURING THE COURSE OF THE TRIAL. 

THEY FIRST CONTEND THAT THE DISTRICT COURT COMMITTED REVERSIBLE
ERROR BY DENYING THEIR REQUEST TO MAKE ADDITIONAL OBJECTIONS TO THE
COURT'S INSTRUCTIONS TO THE JURY OUT OF THE PRESENCE OF THE JURY. 
PRIOR TO CLOSING ARGUMENTS AND INSTRUCTIONS TO THE JURY THE PARTIES HAD
MADE A RECORD WITH RESPECT TO THE INSTRUCTIONS WHICH THE COURT
INDICATED IT WOULD GIVE.  AFTER ARGUMENT AND INSTRUCTIONS, BUT BEFORE
THE JURY HAD RETIRED, PETITIONERS' COUNSEL APPROACHED THE BENCH AND
REQUESTED THAT THE JURY BE EXCUSED IN ORDER THAT HE MIGHT PRESENT
FURTHER OBJECTIONS TO THE CHARGE.  THE COURT DECLINED TO EXCUSE THE
JURY, SAYING: 

"YOU HAVE MADE ALL THE OBJECTIONS SUITABLE THAT I CAN THINK OF.  I
WANT TO SEND THIS JURY OUT.  IF YOU WANT TO MAKE A STATEMENT, MAKE A
STATEMENT."  APP. 257. 

PETITIONERS CONTEND THAT THE COURT'S REFUSAL TO EXCUSE THE JURY
VIOLATED THE PROVISIONS OF FED. RULE CRIM. PROC. 30, AND REQUIRES
REVERSAL.  RULE 30 PROVIDES: 

     "AT THE CLOSE OF THE EVIDENCE OR AT SUCH EARLIER TIME DURING

  THE TRIAL AS THE COURT REASONABLY DIRECTS, ANY PARTY MAY FILE

  WRITTEN REQUESTS THAT THE COURT INSTRUCT THE JURY ON THE LAW AS

 SET FORTH IN THE REQUESTS.  AT THE SAME TIME COPIES OF SUCH

  REQUESTS SHALL BE FURNISHED TO ADVERSE PARTIES.  THE COURT SHALL

  INFORM COUNSEL OF ITS PROPOSED ACTION UPON THE REQUESTS PRIOR TO

  THEIR ARGUMENTS TO THE JURY, BUT THE COURT SHALL INSTRUCT THE

  JURY AFTER THE ARGUMENTS ARE COMPLETED.  NO PARTY MAY ASSIGN AS

  ERROR ANY PORTION OF THE CHARGE OR OMISSION THEREFROM UNLESS HE

  OBJECTS THERETO BEFORE THE JURY RETIRES TO CONSIDER ITS VERDICT,

  STATING DISTINCTLY THE MATTER TO WHICH HE OBJECTS AND AND THE

GROUNDS OF HIS OBJECTION.  OPPORTUNITY SHALL BE GIVEN TO MAKE THE

  OBJECTION OUT OF THE HEARING OF THE JURY AND, ON REQUEST OF ANY

  PARTY, OUT OF THE PRESENCE OF THE JURY."  (EMPHASIS ADDED.) 

NOTHING IN RULE 30 TRANSFERS FROM THE DISTRICT COURT TO COUNSEL THE
FUNCTION OF DECIDING AT WHAT POINT IN THE TRIAL, CONSISTENT WITH
ESTABLISHED PRACTICE, COUNSEL SHALL BE GIVEN THE OPPORTUNITY REQUIRED
BY RULE 30 TO MAKE A RECORD ON THE INSTRUCTIONS GIVEN BY THE COURT. 
BUT WHEN COUNSEL AT THE CLOSE OF THE COURT'S INSTRUCTION TO THE JURY
INDICATES THAT HE WISHES TO MAKE OBJECTIONS OF A KIND WHICH COULD NOT
PREVIOUSLY HAVE BEEN BROUGHT TO THE COURT'S ATTENTION, HE RUNS THE RISK
OF WAIVING A CLAIM OF ERROR UNDER THE FOURTH SENTENCE OF THE RULE
UNLESS THE COURT INDICATES THAT IT WILL PERMIT SUCH OBJECTIONS TO BE
MADE AFTER THE JURY RETIRES.  SINCE THE COURT HERE ASKED COUNSEL FOR
COMMENTS, AND DID NOT INDICATE THAT IT WOULD PERMIT OBJECTIONS WHICH
COULD NOT HAVE BEEN PREVIOUSLY FORMULATED TO BE MADE AFTER THE JURY
RETIRE, WE AGREE WITH THE COURT OF APPEALS THAT THE DISTRICT COURT
ERRED IN REFUSING TO PERMIT SUCH OBJECTIONS TO BE MADE OUT OF THE
PRESENCE OF THE JURY.  WE ALSO AGREE WITH THE COURT OF APPEALS'
CONCLUSION THAT SUCH PROCEDURAL ERROR DOES NOT MANDATE REVERSAL. 

THE COURTS OF APPEALS HAVE TAKEN VARYING APPROACHES TO THE QUESTION OF
WHEN A FAILURE TO COMPLY WITH THE PROVISIONS OF RULE 30 CONSTITUTES
REVERSIBLE ERROR.  /19/  SOME APPEAR TO HAVE APPLIED A GENERAL RULE
THAT SUCH A VIOLATION IS NOT REVERSIBLE ERROR UNLESS THE DEFENDANT
DEMONSTRATES THAT HE HAS BEEN PREJUDICED.  UNITED STATES V. HALL, 200
F.2D 957 (CA2 1953); UNITED STATES V. TITUS, 221 F.2D 571 (CA2), CERT.
DENIED, 350 U.S. 832 (1955); UNITED STATES V. FERNANDEZ, 456 F.2D 638
(CA2 1972); HODGES V. UNITED STATES, 243 F.2D 281 (CA5 1957); SULTAN V.
UNITED STATES, 249 F.2D 385 (CA5 1957).  OTHERS APPEAR TO HAVE ADOPTED
A RULE WHEREBY A VIOLATION IS NOT REVERSIBLE ERROR WHERE IT
AFFIRMATIVELY APPEARS THAT THE DEFENDANT WAS NOT PREJUDICED.  UNITED
STATES V. SCHARTNER, 426 F.2D 470 (CA3 1970); LOVELY V. UNITED STATES,
169 F.2D 386 (CA4 1948).  AT LEAST ONE COURT OF APPEALS APPEARS TO TAKE
THE POSITION THAT THE FAILURE TO COMPLY WITH RULE 30 IS AUTOMATIC
GROUNDS FOR REVERSAL, REGARDLESS OF ATTENUATING CIRCUMSTANCES.  HALL V.
UNITED STATES, 378 F.2D 349 (CA10 1967). 

THE COURT OF APPEALS IN THIS CASE FELT THAT THE RULE ANNOUNCED BY
THE THIRD CIRCUIT IN UNITED STATES V. SCHARTNER, SUPRA, WAS THE
APPROPRIATE ONE FOR APPLICATION WHERE RULE 30 HAS NOT BEEN COMPLIED
WITH.  THE COURT IN SCHARTNER HELD THAT A DISTRICT COURT'S FAILURE TO
COMPLY WITH THE "OUT OF THE PRESENCE OF THE JURY" REQUIREMENT OF RULE
30, UPON PROPER REQUEST BY A PARTY, CONSTITUTES REVERSIBLE ERROR
"UNLESS IT BE DEMONSTRABLE ON AN EXAMINATION OF THE WHOLE RECORD THAT
THE DENIAL OF THE RIGHT DID NOT PREJUDICE" THE DEFENDANT'S CASE.  426
F.2D,AT 480.  APPLYING THAT RULE, THE COURT OF APPEALS HERE CONCLUDED
THAT THERE WAS NO PREJUDICE TO ANY OF THE PETITIONERS AS A RESULT OF
THE DISTRICT COURT'S FAILURE TO COMPLY WITH RULE 30. 

THE LANGUAGE IN RULE 30 AT ISSUE HERE WAS ADDED TO THAT RULE BY A
1966 AMENDMENT; PRIOR TO THAT TIME THE RULE HAD ONLY PROVIDED THAT A
PARTY SHOULD BE GIVEN THE OPPORTUNITY TO MAKE THE OBJECTION OUT OF THE
HEARING OF THE JURY.  THE SIGNIFICANCE OF THE CHANGE WAS NOT ELABORATED
BY THE ADVISORY COMMITTEE IN ITS NOTE ACCOMPANYING THE RULE, WHICH
MERELY MENTIONED THE CHANGE.  COURTS EXAMINING THE RULE HAVE FOUND THAT
IT IS PRINCIPALLY DESIGNED TO AVOID THE SUBTLE PSYCHOLOGICAL PRESSURES
UPON THE JURORS WHICH WOULD ARISE IF THEY WERE TO VIEW AND HEAR DEFENSE
COUNSEL IN A POSTURE OF APPARENT ANTAGONISM TOWARD THE JUDGE.  LOVELY
V. UNITED STATES, SUPRA, AT 391; HODGES V. UNITED STATES, SUPRA, AT 283
- 284; UNITED STATES V. SCHARTNER, SUPRA, AT 479.  WHILE THAT GOAL
MIGHT BE SERVED IN MANY CASES BY A SUFFICIENTLY LOWTONE BENCH
CONFERENCE, THE ULTIMATE WAY TO ASSURE THE GOAL IS TO COMPLY WITH THE
RULE. 

PETITIONERS URGE THAT WE ADOPT A STRICT APPROACH AND DECLARE THAT
ANY NONCOMPLIANCE WITH THE RULE REQUIRES REVERSAL.  WE THINK SUCH AN
APPROACH WOULD BE UNDULY MECHANICAL, AND WOULD BE INCONSISTENT WITH
INTERPRETATION IN PARI MATERIA OF RULE 30 AND OTHER RELEVANT PROVISIONS
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, SINCE RULE 52(A)
SPECIFICALLY PROVIDES THAT "(ANY ERROR, DEFECT, IRREGULARITY OR
VARIANCE WHICH DOES NOT AFFECT SUBSTANTIAL RIGHTS SHALL BE
DISREGARDED."  THIS PROVISION SUGGESTS THE SOUNDNESS OF AN APPROACH
SIMILAR TO THAT OF THE COURT OF APPEALS HERE AND THE VARIOUS OTHER
COURTS OF APPEALS, SUPRA, WHICH HAVE IN SOME MANNER EXAMINED THE
PREJUDICE TO THE DEFENDANT IN DECIDING WHETHER REVERSAL IS REQUIRED
WHERE THERE IS A FAILURE TO COMPLY WITH RULE 30. 

WE CONCLUDE THAT THE COURT OF APPEALS DID NOT ERR IN REFUSING TO
REVERSE PETITIONER'  CONVICTIONS FOR THE FAILURE TO COMPLY WITH THE
PROVISIONS OF RULE 30.  THE COURT OF APPEALS FELT THAT IT SHOULD APPLY
THE SOMEWHAT STRICTER TEST OF THE SCHARTNER CASE, SUPRA; THE COURT FELT
THAT "THE RULE OF FERNANDEZ, (456 F.2D 638 (CA2 1972),) PLACES A BURDEN
UPON A DEFENDANT IN A CRIMINAL CASE THAT HE MAY NOT BE ABLE TO CARRY." 
481 F.2D, AT 324.  APPLYING THE SCHARTNER TEST, THE COURT OF APPEALS
DETERMINED THAT THERE WAS NO PREJUDICE TO PETITIONERS FROM THE FAILURE
TO HOLD THE INSTRUCTION-OBJECTION SESSION OUT OF THE PRESENCE OF THE
JURY.  OUR INDEPENDENT EXAMINATION OF THAT BENCH CONFERENCE CONVINCES
US THAT THE HOLDING OF THE COURT OF APPEALS WAS CORRECT.  THE BENCH
CONFERENCE WAS ONE OF MANY AT THE TRIAL AND THERE IS NO INDICATION IN
THE RECORD THAT THE DISCUSSION WAS HEARD BY THE JURY.  THE COLLOQUY
BETWEEN PETITIONERS' COUNSEL AND THE COURT CONCERNED PURELY LEGAL
ISSUES, APP. 257 - 265, AND THE DISTRICT COURT HAD PRIOR TO THAT POINT
INDICATED ITS RULINGS WITH RESPECT TO THE INSTRUCTIONS REQUESTED BY
COUNSEL.  WE EXPRESS NO VIEW, OF COURSE, AS TO WHETHER A COURT OF
APPEALS MAY FOLLOW THE APPARENTLY MORE LENIENT STANDARD OF REQUIRING
THE DEFENDANT TO DEMONSTRATE THAT HE WAS PREJUDICED.  SEE UNITED STATES
V. FERNANDEZ, 456 F.2D, AT 643 - 644. 

PETITIONERS' SECOND PROCEDURAL CONTENTION IS THAT THE TRIAL JURY WAS
IMPROPERLY CONSTITUTED BECAUSE AN ALLEGEDLY COGNIZABLE CLASS OF
CITIZENS, "YOUNG ADULTS,"  WHICH PETITIONERS DEFINE AS THOSE BETWEEN
THE AGES OF 18 AND 24 YEARS, WERE SYSTEMATICALLY EXCLUDED.  /20/
PETITIONERS THEREFORE ARGUE THAT THE DISTRICT COURT ABUSED ITS
DISCRETION IN REFUSING TO GRANT A CONTINUANCE UNTIL A NEW JURY, WHICH
WOULD HAVE PRESUMABLY CONTAINED A GREATER RATIO OF YOUNG PERSONS, WAS
DRAWN. 

AT THE TIME OF PETITIONERS' INDICTMENT AND TRIAL, THE JURY-SELECTION
PLAN OF THE SOUTHERN DISTRICT OF CALIFORNIA, ADOPTED PURSUANT TO 28
U.S.C. 1863(B)(2) AND (4), 82 STAT. 55, PROVIDED FOR THE PERIODIC
EMPTYING AND REFILLING OF THE MASTER JURY WHEEL FROM VOTER REGISTRATION
LISTS.  AT THAT POINT, IT HAD BEEN SLIGHTLY LESS THAN FOUR YEARS SINCE
THE JURY WHEEL IN THE DISTRICT HAD LAST BEEN FILLED.  PETITIONERS'
ARGUMENT IS THAT BECAUSE THE JURY WHEEL HAD LAST BEEN FILLED IN 1968,
THE YOUNGEST POTENTIAL JUROR FOR THEIR TRIAL WAS AT LEAST 24 YEARS
OLD.  THE PETITIONER CALLED AS A WITNESS THE CLERK OF THE SOUTHERN
DISTRICT OF CALIFORNIA, WHO TESTIFIED THAT WITHIN ONE MONTH THE MASTER
WHEEL WOULD BE REFILLED WITH THE PERSONS WHO THEN APPEARED ON THE
VOTERS' REGISTRATION LIST AND THAT THE MASTER LIST WOULD THEN CONTAIN
THE NAMES OF PERSONS 21 YEARS OF AGE AND OVER.  TR. 94 - 98.  A 1972
AMENDMENT TO 28 U.S.C. 1863(B)(4) (1970 ED., SUPP. II) PROVIDED THAT
THE PERIODIC EMPTYING AND REFILLING OF THE MASTER WHEEL SHOULD OCCUR AT
SPECIFIED INTERVALS, "NOT (TO) EXCEED FOUR YEARS."  PUB. L. NO. 92 -
269, 2, 86 STAT. 117.  THE DISTRICT COURT DENIED PETITIONERS' MOTION TO
STRIKE THE VENIRE, BUT STATED THAT THE EVIDENCE PRESENTED INDICATED
THAT "IT IS TIME TO CHANGE THE JURY MASTER WHEEL."  TR. 93.  THE
PETITIONERS THEN MOVED FOR A CONTINUANCE OF APPROXIMATELY ONE MONTH, SO
THAT THEIR JURY WOULD BE DRAWN FROM A MASTER WHEEL THAT INCLUDED
PERSONS 21 YEARS OF AGE OR OVER.  TR. 95 - 98.  THE DISTRICT COURT
DENIED THE MOTION. 

THE COURT OF APPEALS ASSUMED, WITHOUT DECIDING, THAT THE YOUNG DO
CONSTITUTE A COGNIZABLE GROUP OR CLASS, BUT CONCLUDED THAT PETITIONERS
HAD "FAILED TO SHOW, LET ALONE ESTABLISH, A PURPOSEFUL SYSTEMATIC
EXCLUSION OF THE MEMBERS OF THAT CLASS WHOSE NAMES, BUT FOR SUCH
SYSTEMATIC EXCLUSION WOULD OTHERWISE BE SELECTED FOR THE MASTER JURY
WHEEL," AND THEREFORE THAT THE DISTRICT COURT'S REFUSAL TO GRANT A
CONTINUANCE WAS NOT AN ABUSE OF DISCRETION.  481 F.2D,AT 314.  WE AGREE
WITH THE COURT OF APPEALS. 

PETITIONERS DO NOT CITE CASE AUTHORITY FOR THE PROPOSITION THAT THE
YOUNG ARE AN IDENTIFIABLE GROUP ENTITLED TO A GROUP-BASED PROTECTION
UNDER OUR PRIOR CASES, SEE HERNANDEZ V. TEXAS, 347 U.S. 475, 479 - 480
(1954); CLAIMS OF EXCLUSION OF THE YOUNG FROM JURIES HAVE MET WITH
LITTLE SUCCESS IN THE FEDERAL COURTS.  /21/  ASSUMING, AS DID THE COURT
OF APPEALS, THAT THE YOUNG ARE SUCH A GROUP, WE DO NOT BELIEVE THAT
DISCRIMINATION WHICH WOULD IN TURN PLACE THE BURDEN ON THE GOVERNMENT
TO OVERCOME IT.  THE MASTER WHEEL UNDER THE SOUTHERN DISTRICT OF
CALIFORNIA PLAN, AS UNDER PLANS IN OTHER JUDICIAL DISTRICTS, IS
PERIODICALLY EMPTIED AND THEN REFILLED WITH NAMES FROM THE AVAILABLE
VOTER LISTS.  PERSONS ADDED TO THE VOTER LISTS SUBSEQUENT TO ONE
FILLING OF THE JURY WHEEL ARE THEREFORE NOT ADDED TO THE WHEEL UNTIL
THE NEXT REFILLING.  BUT SOME PLAY IN THE JOINTS OF THE JURY-SELECTION
PROCESS IS NECESSARY IN ORDER TO ACCOMMODATE THE PRACTICAL PROBLEMS OF
JUDICIAL ADMINISTRATION.  CONGRESS COULD REASONABLY ADOPT PROCEDURES
WHICH, WHILE DESIGNED TO ASSURE THAT "AN IMPARTIAL JURY (IS) DRAWN FROM
A CROSS-SECTION OF THE COMMUNITY," THIEL V. SOUTHERN PACIFIC CO., 328
U.S. 217, 220 (1946); SMITH V. TEXAS, 311 U.S. 128, 130 (1940), AT THE
SAME TIME TAKE INTO ACCOUNT PRACTICAL PROBLEMS IN JUDICIAL
ADMINISTRATION.  UNLESS WE WERE TO REQUIRE THE DAILY REFILLING OF THE
JURY WHEEL, CONGRESS MAY NECESSARILY CONCLUDE THAT SOME PERIODIC DELAY
IN UPDATING THE WHEEL IS REASONABLE TO PERMIT THE ORDERLY
ADMINISTRATION OF JUSTICE.  /22/  INVARIABLY OF COURSE, AS TIME GOES
ON, THE JURY WHEEL WILL BE MORE AND MORE OUT OF DATE, ESPECIALLY NEAR
THE END OF THE STATUTORILY PRESCRIBED TIME PERIOD FOR UPDATING THE
WHEEL.  BUT IF THE JURY WHEEL IS NOT DISCRIMINATORY WHEN COMPLETELY
UPDATED AT THE TIME OF EACH REFILLING, A PROHIBITED "PURPOSEFUL
DISCRIMINATION" DOES NOT ARISE NEAR THE END OF THE PERIOD SIMPLY
BECAUSE THE YOUNG AND OTHER PERSONS HAVE BELATEDLY BECOME ELIGIBLE FOR
JURY SERVICE BY BECOMING REGISTERED VOTERS.  WHITUS V. GEORGIA, 385
U.S. 545, 551 (1967); SEE AVERY V. GEORGIA, 345 U.S. 559 (1953);
ALEXANDER V. LOUISIANA, 405 U.S. 625 (1972).  SINCE PETITIONERS FAILED
TO ESTABLISH A DISCRIMINATORY EXCLUSION OF THE YOUNG FROM THEIR JURY,
THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION IN REFUSING TO
GRANT PETITIONERS' MOTION FOR A CONTINUANCE. 

PETITIONERS' THIRD PROCEDURAL CONTENTION IS THAT THE DISTRICT COURT
ERRED IN REFUSING TO ASK CERTAI QUESTIONS ON VOIR DIRE CONCERNING
POSSIBLE RELIGIOUS AND OTHER BIASES OF THE JURERS.  /23/  SPECIFICALLY,
PETITIONERS REQUESTED THE COURT TO ASK QUESTIONS AS TO WHETHER THE
JURORS' EDUCATIONAL, POLITICAL, AND RELIGIOUS BELIEFS MIGHT AFFECT
THEIR VIEWS ON THE QUESTION OF OBSCENITY.  APP. 78 - 81.  THE COURT OF
APPEALS CONCLUDED THAT THE DISTRICT COURT'S EXAMINATION ON THE VOIR
DIRE OF THE PROSPECTIVE JURORS "WAS FULL, COMPLETE AND . . . FAIR TO
THE (PETITIONERS) AS CONTEMPLATED BY RULE 24(A), FEDERAL RULES OF
CRIMINAL PROCEDURE."  481 F.2D,AT 314.  NOTING THAT PETITIONERS HAD
REQUESTED THE SUBMISSION OF NUMEROUS QUESTIONS TO THE PETIT PANEL, THE
COURT OF APPEALS STATED: 

"THE DISTRICT COURT ASKED MANY OF THE QUESTIONS AS SUBMITTED, MANY
IN ALTERED AND CONSOLIDATED FORM, AND DECLINED TO ASK MANY OTHERS WHICH
WERE CUMULATIVE AND ARGUMENTATIVE.  THE HANDLING OF THOSE QUESTIONS NOT
ASKED WAS CLEARLY WITHIN THE RANGE OF THE DISTRICT COURT'S DISCRETION
IN THE MATTER AND NO CLEAR ABUSE OF THE DISCRETION NOR PREJUDICE TO THE
(PETITIONERS) HAS BEEN SHOWN."  IBID. 

WE AGREE WTIH THE COURT OF APPEALS.  FEDERAL RULE CRIM. PROC. 24(A)
PERMITS A DISTRICT COURT TO CONDUCT THE VOIR DIRE EXAMINATION, MAKING
SUCH USE OF QUESTIONS SUBMITTED BY THE PARTIES AS IT DEEMS PROPER.  THE
DISTRICT COURT HERE ASKED QUESTIONS SIMILAR TO MANY OF THOSE SUBMITTED
BY PETITIONERS, AND ITS EXAMINATION WAS CLEARLY SUFFICIENT TO TEST THE
QUALIFICATIONS AND COMPETENCY OF THE PROSPECTIVE JURORS.  PETITIONERS'
RELIANCE ON THIS COURT'S DECISIONS IN ALDRIDGE V. UNITED STATES, 283
U.S. 308 (1931), AND HAM V. SOUTH CAROLINA, 409 U.S. 524 (1973), IS
MISPLACED.  THOSE CASES HELD THAT IN CERTAIN SITUATIONS A JUDGE MUST
INQUIRE INTO POSSIBLE RACIAL PREJUDICES OF THE JURORS IN ORDER TO
SATISFY THE DEMANDS OF DUE PROCESS.  BUT IN HAM V. SOUTH CAROLINA,
SUPRA, WE ALSO REJECTED A CLAIM THAT THE TRIAL JUDGE HAD ERRED IN
REFUSING TO ASK THE JURORS ABOUT POTENTIAL BIAS AGAINST BEARDS, NOTING
OUR INABILITY "TO CONSTITUTIONALLY DISTINGUISH POSSIBLE PREJUDICE
AGAINST BEARDS FROM A HOST OF OTHER POSSIBLE SIMILAR PREJUDICES.  . .
."  ID., AT 528.  HERE, AS IN HAM, THE TRIAL JUDGE MADE A GENERAL
INQUIRY INTO THE JURORS' GENERAL VIEWS CONCERNING OBSCENITY.  FAILURE
TO ASK SPECIFIC QUESTIONS AS TO THE POSSIBLE EFFECT OF EDUCATIONAL,
POLITICAL, AND RELIGIOUS BIASES DID "NOT REACH THE LEVEL OF A
CONSTITUTIONAL VIOLATION," IBID., NOR WAS IT ERROR REQUIRING THE
EXERCISE OF OUR SUPERVISORY AUTHORITY OVER THE ADMINISTRATION OF
JUSTICE IN THE FEDERAL COURTS.  WE HOLD THAT THE DISTRICT COURT ACTED
WITHIN ITS DISCRETION IN REFUSING TO ASK THE QUESTIONS. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN THIS
CASE IS

 AFFIRMED. 

/1/  THE INDICTMENT IS REPRODUCED IN FULL AT APP. 14 - 31. 

/2/  EACH PETITIONER WAS CONVICTED ON COUNTS 1 - 5 AND 7 - 13 OF THE
INDICTMENT.  APP. 9.  PETITIONER HAMLING WAS SENTENCED TO IMPRISONMENT
FOR ONE YEAR ON THE CONSPIRACY COUNT, AND CONSECUTIVE TO THAT,
CONCURRENT TERMS OF THREE YEARS EACH ON THE 11 SUBSTANTIVE COUNTS, AND
HE WAS FINED $32,000.  PETITIONER KEMP WAS SENTENCED TO IMPRISONMENT
FOR ONE YEAR AND ONE DAY ON THE CONSPIRACY COURT, AND CONSECUTIVE TO
THAT, CONCURRENT TERMS OF TWO YEARS EACH ON THE 11 SUBSTANTIVE COUNTS. 
PETITIONERS WRIGHT AND THOMAS RECEIVED SUSPENDED SENTENCES OF ONE AND
ONE-HALF YEARS, AND WERE PLACED ON PROBATION FOR FIVE YEARS. 
PETITIONERS REED ENTERPRISES, INC., AND LIBRARY SERVICES, INC., WERE
FINED $43,000 AND $12,000, RESPECTIVELY.     /3/  THOSE COUNTS ON WHICH
THE JURY WAS UNABLE TO REACH A VERDICT AND UPON WHICH A MISTRIAL WAS
DECLARED WERE COUNTS 15, 16, 17, 19, AND 21.  APP. 10.  AFTER
PRESENTATION OF THE GOVERNMENT'S CASE, THE DISTRICT COURT DISMISSED
FOUR OF THE SUBSTANTIVE COUNTS (6, 14, 18, AND 20) FOR LACK OF PROOF. 
APP. 7; BRIEF FOR UNITED STATES 6 N. 4.  THE OBSCENITY VEL NON OF THE
ILLUSTRATED REPORT WAS THUS NOT AT ISSUE IN THE COURT OF APPEALS NOR IS
IT AT ISSUE IN THIS COURT. 

/4/  THE ONLY PRINTED WORDS APPEARING ON THE INTERFOLD OF PICTURES
ARE: 

"IN THE KATZMAN STUDIES (1970) FOR THE COMMISSION (SEE PAGE 180),
SOME 90 PHOTOGRAPHS WERE RATED ON FIVE-POINT SCALES FOR 'OBSCENE' AND
'SEXUALLY STIMULATING' BY THE CONTROL GROUP.  GROUP ACTIVITY SCENES OF
THE TYPE HERE ILLUSTRATED COULD HAVE BEEN PART OF THE 90.  BOTH THESE
GROUP SEX PICTURES ARE FROM THE DANISH MAGAZINE PORNO CLUB NO. 3,
SUPPOSEDLY THIS WAS FILMED AT A 'LIVE SHOW'  NIGHT CLUB IN COPENHAGEN. 
THERE ARE MANY SIMILAR CLUBS." 

/5/  GREENLEAF CLASSICS, INC., WAS ALSO INDICTED, BUT WAS ACQUITTED
ON THE COUNTS INVOLVING THE BROCHURE, INCLUDING THE CONSPIRACY COUNT. 
AS MENTIONED ABOVE, THE JURY WAS UNABLE TO REACH A VERDICT ON THE
COUNTS INVOLVING THE ILLUSTRATED REPORT.  SEE N. 3, SUPRA. 

/6/  PARIS ADULT THEATRE I V. SLATON, 413 U.S. 49 (1973); KAPLAN V.
CALIFORNIA, 413 U.S. 115 (1973); UNITED STATES V. 12 200-FT. REELS OF
FILM, 413 U.S. 123 (1973); UNITED STATES V. ORITO, 413 U.S. 139
(1973). 

/7/  UPON WITHDRAWING THE ORIGINAL ORDER DENYING REHEARING FOR
RECONSIDERATION IN LIGHT OF MILLER V. CALIFORNIA, SUPRA, AND THE
RELATED CASES, THE COURT OF APPEALS STATED (PET. FOR CERT. APP. 39 -
40): 

"WE HERETOFORE DETERMINED THAT THE EVIDENCE WAS ABUNDANTLY
SUFFICIENT TO MEET, AND THE DISTRICT COURT'S JURY INSTRUCTIONS IN FULL
COMPLIANCE WITH, THE ESSENTIAL ELEMENTS OF THE ROTH-MEMOIRS TEST. 
UNITED STATES V. ONE REEL OF FILM, ET AL.,--F.2D--(1ST CIR. JULY 16,
1973, NO. 73 - 1181) AT PAGES 5 AND 7 OF THE SLIP OPINION, IN
CONSIDERATING THE SAME PROBLEM, SUCCINCTLY STATES: 

"'A FORTIORI MORE RELAXED STANDARDS ANNOUNCED BY THE SUPREME COURT
WERE MET. 

"'(WE SEE NO POSSIBLE REASON TO REMAND, ESPECIALLY AS THE SUPREME
COURT HAS JUST ADDRESSED ITSELF TO THE CONSTRUCTION AND ADEQUACY OF THE
FEDERAL STATUTE INVOLVED.  SEE UNITED STATES V. 12 200-FT. REELS OF
SUPER 8MM.  FILM, SUPRA, 41 U.S.L.W. AT 4963, N. 7.'" 

/8/  TITLE 18 U.S.C. 1461 PROVIDES IN PERTINENT PART: 

"EVERY OBSCENE, LEWD, LASCIVIOUS, INDECENT, FILTHY OR VILE ARTICLE,
MATTER, THING, DEVICE, OR SUBSTANCE; AND--

        .          .          .          . 

"EVERY WRITTEN OR PRINTED CARD, LETTER, CIRCULAR, BOOK, PAMPHLET,
ADVERTISEMENT, OR NOTICE OF ANY KIND GIVING INFORMATION, DIRECTLY OR
INDIRECTLY, WHERE, OR HOW, OR FROM WHOM, OR BY WHAT MEANS ANY OF SUCH
MENTIONED MATTERS, ARTICLES, OR THINGS MAY BE OBTAINED OR MADE.  . . .

        .          .          .         . 

"IS DECLARED TO BE NONMAILABLE MATTER AND SHALL NOT BE CONVEYED IN
THE MAILS OR DELIVERED FROM ANY POST OFFICE OR BY ANY LETTER CARRIER. 

"WHOEVER KNOWINGLY USES THE MAILS FOR THE MAILING, CARRIAGE IN THE
MAILS, OR DELIVERY OF ANYTHING DECLARED BY THIS SECTION OR SECTION
3001(E) OF TITLE 39 TO BE NONMAILABLE, OR KNOWINGLY CAUSES TO BE
DELIVERED BY MAIL ACCORDING TO THE DIRECTION THEREON, OR AT THE PLACE
AT WHICH IT IS DIRECTED TO BE DELIVERED BY THE PERSON TO WHOM IT IS
ADDRESSED, OR KNOWINGLY TAKES ANY SUCH THING FROM THE MAILS FOR THE
PURPOSE OF CIRCULATING OR DISPOSING THEREOF, OR OF AIDING IN THE
CIRCULATION OR DISPOSITION THEREOF, SHALL BE FINED NOT MORE THAN $5,000
OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH, FOR THE FIRST SUCH
OFFENSE, AND SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT
MORE THAN TEN YEARS, OR BOTH, FOR EACH SUCH OFFENSE THEREAFTER.  . .
." 

/9/  UNITED STATES V. ORITO, 413 U.S. 139 (1973); UNITED STATES V.
12 200-FT. REELS OF FILM, 413 U.S. 123 (1973). 

/10/  THE STATED BASIS FOR THE DISTRICT COURT'S EXCLUSION OF THE
TESTIMONY OF MISS CARLSEN WAS THAT HER SURVEY WAS NOT FRAMED IN TERMS
OF "NATIONAL STANDARDS, BUT IT IS NOT AT ALL CLEAR THAT THE DISTRICT
COURT WOULD HAVE ADMITTED HER TESTIMONY HAD IT BEEN SO FRAMED.  "(A)
SPECIFIC OBJECTION SUSTAINED . . . IS SUFFICIENT, THOUGH NAMING AN
UNTENABLE GROUND, IF SOME OTHER TENABLE ONE EXISTED."  1 J. WIGMORE,
EVIDENCE 18, P. 32 (3D ED. 1940), CITING KANSAS CITY S. R. CO. V.
JONES, 241 U.S. 181 (1916).  MISS CARLSEN WAS A STUDENT AT SAN DIEGO
STATE UNIVERSITY WHO WORKED PART TIME AT F. W. WOOLWORTH, DOING
COMPOSITION LAYOUTS OF NEWSPAPER ADVERTISING FOR THE COMPANY'S STORE IN
FASHION VALLEY.  SHE HAD UNDERTAKEN A "SPECIAL STUDIES" COURSE WITH HER
JOURNALISM PROFESSOR, MR. HABERSTROH, WHO WAS ALSO OFFERED BY
PETITIONERS AS AN EXPERT WITNESS AT THE TRIAL.  MISS CARLSEN HAD
CIRCULATED THROUGH THE SAN DIEGO AREA AND ASKED VARIOUS PERSONS AT
RANDOM WHETHER THEY THOUGHT "ADULTS SHOULD BE ABLE TO BUY AND VIEW THIS
BOOK AND MATERIAL."  TR. 3926. 

/11/  THE SEQUENCE OF EVENTS IN THIS CASE IS QUITE DIFFERENT FROM
THAT IN SAUNDERS V. SHAW, 244 U.S. 317 (1917), UPON WHICH OUR BROTHER
BRENNAN RELIES.  THERE THE SUPREME COURT OF LOUISIANA DIRECTED THE
ENTRY OF JUDGMENT AGAINST AN INTERVENING DEFENDANT WHO HAD PREVAILED IN
THE TRIAL COURT, ON THE BASIS OF TESTIMONY ADDUCED MERELY AS AN OFFER
OF PROOF BY THE PLAINTIFF, AND TO WHICH THE INTERVENING DEFENDANT HAD
THEREFORE HAD NO OCCASION TO RESPOND.  SINCE THE TRIAL COURT HAD RULED
THAT THE ISSUE TO WHICH PLAINTIFF'S PROOF WAS ADDRESSED WAS IRRELVANT,
THIS COURT REVERSED THE SUPREME COURT OF LOUISIANA IN ORDER THAT THE
INTERVENING DEFENDANT MIGHT HAVE AN OPPORTUNITY TO CONTROVERT THE
PLAINTIFF'S PROOF.  HERE PETITIONERS WERE GIVEN FULL LATITUDE IN
REBUTTING EVERY FACTUAL ISSUE DEALT WITH IN THE GOVERNMENT'S CASE, AND
NO CLAIM IS MADE THAT THE JURY WAS PERMITTED TO RELY ON EVIDENCE
INTRODUCED MERELY BY WAY OF OFFER OF PROOF WHICH WAS NOT SUBJECT TO
CROSS-EXAMINATION OR TO CONTRADICTION BY COUNTERVAILING EVIDENCE
OFFERED BY THE PETITIONERS.  THE PRESENT CASE SEEMS TO US MUCH CLOSES
TO GINZBURG V. UNITED STATES, 383 U.S. 463 (1966), THAN TO SAUNDERS. 

/12/  PETITIONER'S FURTHER CONTENTION THAT OUR REMAND TO THE
DISTRICT COURT IN UNITED STATES V. ORITO, 413 U.S. 139 (1973), FOR
RECONSIDERATION OF THE SUFFICIENCY OF THE INDICTMENT IN LIGHT OF MILLER
AND UNITED STATES V. 12 200-FT. REELS OF FILM, INDICATES THAT THE
SUFFICIENCY OF THEIR INDICTMENT IS IN QUESTION MISSES THE MARK.  IN
ORITO, WE REVIEWED A DISTRICT COURT JUDGMENT WHICH HAD DISMISSED AN
INDICTMENT UNDER 18 U.S.C. 1462 AND HELD THAT STATUTE
UNCONSTITUTIONAL.  IN UPHOLDING THE STATUTE AND VACATING THE JUDGMENT
OF THE DISTRICT COURT, WE REMANDED THE CASE FOR RECONSIDERATION OF THE
INDICTMENT IN LIGHT OF MILLER AND 12 200-FT. REELS, WHICH HAD, OF
COURSE, ENUNCIATED NEW STANDARDS FOR STATE AND FEDERAL OBSCENITY
PROSECUTIONS, AND FOR RECONSIDERATION IN LIGHT OF OUR OPINION REVERSING
THE DISTRICT COURT'S HOLDING THAT THE STATUTE WAS UNCONSTITUTIONAL. 
HERE OF COURSE, THE DISTRICT COURT AND THE COURT OF APPEALS HAVE
ALREADY UPHELD BOTH THE SUFFICIENCY OF THE INDICTMENT AND THE
CONSTITUTIONALITY OF 18 U.S.C. 1461, AND WE AGREE WITH THEIR RULINGS. 

/13/  MR. JUSTICE BRENNAN, JOINED BY MR. CHIEF JUSTICE WARREN AND
MR. JUSTICE DOUGLAS, CONCLUDED THAT 18 U.S.C. 1461 DOES NOT AUTHORIZE
THE POSTMASTER GENERAL TO EMPLOY ANY ADMINISTRATIVE PROCESS OF HIS OWN
TO CLOSE THE MAILS TO MATTER WHICH, IN HIS VIEW, FALLS WITHIN THE BAN
OF THAT SECTION.  MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478, 495 -
519 (1962) (SEPARATE OPINION). 

/14/  THE MAGAZINE OFFERED WAS ENTITLED NUDE LIVING, NO. 63.  THE
FOUNDATION ALLEGED FOR ITS ADMISSIBILITY WAS THAT IT HAD RECEIVED A
SECOND-CLASS MAILING PRIVILEGE.  APP. 212 - 213. 

/15/  BRIEF FOR PETITIONER KEMP 69. 

/16/  OTHER PROFFERED MATERIALS, ALLEGED TO BE COMPARABLE, INCLUDED
NUMEROUS MAGAZINES AND FILMS, AND ALSO THE SURVEY (SEE N. 10, SUPRA)
CONDUCTED BY THE STUDENT AT SAN DIEGO STATE UNIVERSITY OF THE REACTIONS
OF PEOPLE IN THE SAN DIEGO AREA TO THE ILLUSTRATED REPORT AND THE
BROCHURE.  BRIEF FOR PETITIONER KEMP 64 - 71. 

/17/  PETITIONERS ALSO CONTEND THAT THIS EVIDENCE WAS AT VARIANCE
WITH THE GOVERNMENT'S ANSWER TO THEIR BILL OF PARTICULARS.  BRIEF FOR
PETITIONER HAMLING 49 - 50.  THE COURT OF APPEALS ASSUMED, WITHOUT
DECIDING, THAT SUCH EVIDENCE DID CONSTITUTE A VARIANCE, BUT CONCLUDED
THAT "SUCH VARIANCE WAS IN NO WISE A SURPRISE OR PREJUDICE TO THE
DEFENDANTS AS THEIR OWN EXPERT OPINION TESTIMONY INTERWOVE AND COVERED
THE SAME FIELD COMPLETELY."  481 F.2D,AT 322.  WE AGREE WITH THE COURT
OF APPEALS. 

/18/  BRIEF FOR PETITIONER HAMLING 49 - 50. 

/19/  FEDERAL RULE CIV. PROC. 51 STATES THAT "(OPPORTUNITY SHALL BE
GIVEN TO MAKE THE OBJECTION OUT OF THE HEARING OF THE JURY."  THOUGH
THE "OUT-OF-THE-PRESENCE-OF-THE-JURY" LANGUAGE IS NOT CONTAINED IN THAT
RULE, THE ADVISORY COMMITTEE'S NOTE ATTENDING FED. RULE CRIM. PROC. 30
STATES THAT IT IS TO "CORRESPOND TO RULE 51 OF THE FEDERAL RULES OF
CIVIL PROCEDURE.  . . . IT SEEMED APPROPRIATE THAT ON A POINT SUCH AS
INSTRUCTIONS TO JURIES THERE SHOULD BE NO DIFFERENCE IN PROCEDURE
BETWEEN CIVIL AND CRIMINAL CASES."  THE GOVERNMENT ARGUES THAT IN
CONSIDERING WHETHER FAILURE TO COMPLY WITH FED. RULE CRIM. PROC. 30
REQUIRES REVERSAL, THE APPROPRIATE TEST SHOULD BE SIMILAR TO THE
GENERAL STANDARD OF CONSIDERATION WHERE THERE IS A FAILURE TO COMPLY
WITH FED. RULE CIV. PROC. 51, I.E., REVERSAL IS REQUIRED "IF THERE IS
REASONABLE BASIS FOR CONCLUDING THAT THE COLLOQUY HAD IN THE PRESENCE
OF THE JURY AS A RESULT OF THE JUDGE'S IGNORING OR DENYING A PROPER
REQUEST WAS PREJUDICIAL."  SWAIN V. BOEING AIRPLANE CO., 337 F.2D 940,
943 (CA2 1964), CERT. DENIED, 380 U.S. 951 (1965).  THIS APPROACH WAS
USED BY A PANEL OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN A
CASE INVOLVING FAILURE TO COMPLY WITH FED. RULE CRIM. PROC. 30.  UNITED
STATES V. FERNANDEZ, 456 F.2D 638 (1972). 

/20/  IN CONNECTION WITH THEIR MOTION TO STRIKE THE VENIRE,
PETITIONERS INTRODUCED EVIDENCE WHICH THEY CONTENDED ESTABLISHED THAT
"YOUNG PERSONS WERE A COGNIZABLE GROUP AND THAT THEY WERE MORE TOLERANT
THAN OLDER PERSONS IN MATTERS PERTAINING TO THE DEPICTION OF SEXUALLY
EXPLICIT MATERIAL."  BRIEF FOR PETITIONER HAMLING 88. 

/21/  SEE, E.G., UNITED STATES V. BUTERA, 420 F.2D 564 (CA1 1970);
UNITED STATES V. CAMARA, 451 F.2D 1122 (CA1 1971); UNITED STATES V.
GOODING, 473 F.2D 425 (CA5 1973); UNITED STATES V. KUHN, 441 F.2D 179
(CA5 1971); UNITED STATES V. GAST, 457 F.2D 141 (CA7), CERT. DENIED,
406 U.S. 969 (1972). 

/22/  VARIOUS DELAYS IN REFILLING JURY WHEELS HAVE BEEN UPHELD BY
THE FEDERAL COURTS.  E.G., UNITED STATES V. PENTADO, 463 F.2D 355 (CA5
1972) (THREE YEARS); UNITED STATES V. GOODING, SUPRA (THREE YEARS, FOUR
MONTHS); UNITED STATES V. KUHN, SUPRA (FIVE YEARS). 

/23/  PETITIONERS ALSO CONTEND THAT CERTAIN ACTIONS OF THE
GOVERNMENT'S ATTORNEY BEFORE THE GRAND JURY PREJUDICED THAT BODY
AGAINST THEM.  THE COURT OF APPEALS, IN REJECTING THIS CONTENTION,
STATED:

"THE RECORD BEFORE US IS TOTALLY LACKING OF ANY EVIDENCE OR SHOWING
OF ANY KIND THAT ANY MEMBER OF THE GRAND JURY WAS BIASED OR PREJUDICED
IN ANY DEGREE AGAINST ANY OF THE (PETITIONERS), EXCEPT ONLY A
SUPPOSITION AS TO HOW THE MEMBERS MAY HAVE REACTED UPON A VIEW OF THE
BROCHURE AND REPORT.  THE PRESUMPTION OF REGULARITY WHICH ATTACHES TO
GRAND JURY PROCEEDINGS STILL ABIDES.  . . . (THE ASSIGNMENT HAS NO
MERIT."  481 F.2D,AT 313 (CITATIONS OMITTED). 

WE AGREE WITH THE COURT OF APPEALS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IN 1970 THE PRESIDENT'S COMMISSION ON OBSCENITY AND PORNOGRAPHY
ISSUED ITS REPORT.  DEAN WILLIAM D. LOCKHART WAS CHAIRMAN.  EIGHTEEN
OTHERS WERE MEMBERS.  IT WAS A 646-PAGE REPORT.  ONE MEMBER, CHARLES H.
KEATING, JR., FILED A DISSENTING REPORT OF SOME 60 PAGES WITH AT LEAST
AS MANY PAGES OF EXHIBITS.  THE REPORT CONTAINS MANY REFERENCES TO MANY
FACETS OF SEX:  E.G., PETTING, COITUS, ORAL SEXUALITY, MASTURBATION,
AND HOMOSEXUAL ACTIVITIES. 

WHAT PETITIONERS DID WAS TO SUPPLY THE REPORT WITH A GLOSSARY--NOT
IN DICTIONARY TERMS BUT VISUALLY.  EVERY ITEM IN THE GLOSSARY DEPICTED
EXPLICIT SEXUAL MATERIAL WITHIN THE MEANING OF THAT TERM AS USED IN THE
REPORT.  PERHAPS WE SHOULD HAVE NO REPORTS ON OBSCENITY.  BUT IMBEDDED
IN THE FIRST AMENDMENT IS THE PHILOSOPHY THAT THE PEOPLE HAVE THE RIGHT
TO KNOW.  /1/  SEX IS MORE IMPORTANT TO SOME THAN TO OTHERS BUT IT IS
OF SOME IMPORTANCE TO ALL.  IF OFFICIALS MAY CONSTITUTIONALLY REPORT ON
OBSCENITY, I SEE NOTHING IN THE FIRST AMENDMENT THAT ALLOWS US TO BAR
THE USE OF A GLOSSARY FACTUALLY TO ILLUSTRATE WHAT THE REPORT
DISCUSSES. 

/1/  THE CONSTITUTION OF INDIA (MAR. 1, 1963) PROVIDES IN ART. 19
(1) THAT "(ALL CITIZENS SHALL HAVE THE RIGHT--(A) TO FREEDOM OF SPEECH
AND EXPRESSION"; BUT ART. 19 (2) PROVIDES THAT NOTHING IN THAT CLAUSE
BARS "REASONABLE RESTRICTIONS ON THE EXERCISE" OF THOSE RIGHTS "IN THE
INTEREST OF . . . DECENCY OR MORALITY."  OUR FIRST AMENDMENT CONTAINS
NO SUCH QUALIFICATION AND CERTAINLY WHEN JEFFERSON AND MADISON DRAFTED
IT, SEX HAD AS GREAT A POTENTIAL FOR VULGARITY AS FOR BEAUTY.  IF THEY
HAD WANTED A FEDERAL CENSOR TO EDIT OUR PUBLICATIONS, THEY CERTAINLY
WOULD HAVE MADE IT EXPLICIT. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

       I     WHATEVER THE CONSTITUTIONAL POWER OF GOVERNMENT TO
REGULATE THE DISTRIBUTION OF SEXUALLY ORIENTED MATERIALS, THE FIRST AND
FOURTEENTH AMENDMENTS, IN MY VIEW, DENY THE FEDERAL AND STATE
GOVERNMENTS POWER WHOLLY TO SUPPRESS THEIR DISTRIBUTION.  FOR I REMAIN
OF THE VIEW THAT, "AT LEAST IN THE ABSENCE OF DISTRIBUTION TO JUVENILES
OR OBTRUSIVE EXPOSURE TO UNCONSENTING ADULTS, THE FIRST AND FOURTEENTH
AMENDMENTS PROHIBIT THE STATE AND FEDERAL GOVERNMENTS FROM ATTEMPTING
WHOLLY TO SUPPRESS SEXUALLY ORIENTED MATERIALS ON THE BASIS OF THEIR
ALLEGEDLY 'OBSCENE' CONTENTS."  PARIS ADULT THEATRE I V. SLATON, 413
U.S. 49, 113 (1973) (BRENNAN, J., DISSENTING).  SINCE AMENDED 18 U.S.C.
1461, AS CONSTRUED BY THE COURT, AIMS AT TOTAL SUPPRESSION OF
DISTRIBUTION BY MAIL OF SEXUALLY ORIENTED MATERIALS, IT IS, IN MY VIEW,
UNCONSTITUTIONALLY OVERBROAD AND THEREFORE INVALID ON ITS FACE.  ON
THAT GROUND ALONE, I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS
AND DIRECT THE DISMISSAL OF THE INDICTMENT.  SEVERAL OTHER REASONS,
HOWEVER, ALSO COMPEL THE CONCLUSION THAT PETITIONERS' CONVICTIONS
SHOULD BE SET ASIDE. 

        II 

AT LEAST SINCE 1962 THE ACCEPTED CONSTRUCTION OF AMENDED 1461 HAS
BEEN THAT OF MR. JUSTICE HARLAN AND MR. JUSTICE STEWART "THAT THE
PROPER TEST UNDER THIS FEDERAL STATUTE, (1461,) REACHING AS IT DOES TO
ALL PARTS OF THE UNITED STATES WHOSE POPULATION REFLECTS MANY DIFFERENT
ETHNIC AND CULTURAL BACKGROUNDS, IS A NATIONAL STANDARD OF DECENCY";
FURTHER, THEY SAID, "(THE 1958 AMENDMENTS . . . AUTHORIZING CRIMINAL
PROSECUTION AT THE PLACE OF DELIVERY EVINCE NO PURPOSE TO MAKE THE
STANDARD LESS THAN NATIONAL."  MANUAL ENTERPRISES, INC. V. DAY, 370
U.S. 478, 488, AND N. 10 (1962).  THE COURT TODAY OVERRULES THAT
CONSTRUCTION AND CONSTRUES AMENDED 1461 TO PERMIT A JUROR TO "DRAW ON
KNOWLEDGE OF THE COMMUNITY OR VICINAGE FROM WHICH HE COMES IN DECIDING
WHAT CONCLUSION 'THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY
STANDARDS' WOULD REACH IN A GIVEN CASE."  ANTE, AT 105.  APART FROM THE
QUESTIONS WHETHER THE COURT'S NEW CONSTRUCTION TRESPASSES UPON THE
CONGRESSIONAL PREROGATIVE, SEE BLOUNT V. RIZZI, 400 U.S. 410, 419
(1971), /1/  AND WHETHER CONSTITUTIONALLY ANY "LOCAL" STANDARD UNDER
AMENDED 1461 CAN PROPERLY BE EMPLOYED TO DELINEATE THE AREA OF
EXPRESSION PROTECTED BY THE FIRST AMENDMENT, SEE PENNEKAMP V. FLORIDA,
328 U.S. 331, 335 (1946)--SINCE "(IT IS, AFTER ALL, A NATIONAL
CONSTITUTION WE ARE EXPOUNDING," JACOBELLIS V. OHIO, 378 U.S. 184, 195
(1964) (OPINION OF BRENNAN, J.)--THE CONSTRUCTION THAT A "LOCAL"
STANDARD APPLIES IN 1461 CASES RAISES AT LEAST ANOTHER SERIOUS FIRST
AMENDMENT PROBLEM. 

THE 1958 AMENDMENTS TO 1461 CONSTITUTED THE MAILING OF OBSCENE
MATTER A CONTINUING OFFENSE UNDER 18 U.S.C. 3237.  /2/  THE PRACTICAL
EFFECT OF THIS AMENDMENT--INTENTIONALLY ADOPTED BY CONGRESS FOR THAT
EXPRESS PURPOSE--IS TO PERMIT PROSECUTION "IN THE FEDERAL DISTRICT IN
WHICH (THE DISSEMINATOR) MAILED THE OBSCENITY, IN THE FEDERAL DISTRICT
IN WHICH THE OBSCENITY WAS RECEIVED, OR IN ANY FEDERAL DISTRICT THROUGH
WHICH THE OBSCENITY PASSED WHILE IT WAS ON ITS ROUTE THROUGH THE
MAILS."  104 CONG.REC.  15610 - 15611 (1958) (REMARKS OF REP.
HILLINGS); SEE H. R. REP. NO. 2624, 85TH CONG., 2D SESS. (1958); 104
CONG.REC.  8991 (REMARKS OF REP. KEATING); ID., AT 17832; ID., AT 8992
(REMARKS OF REP. POFF).  UNDER TODAY'S "LOCAL" STANDARDS CONSTRUCTION,
THEREFORE, THE GUILT OR INNOCENCE OF DISTRIBUTORS OF IDENTICAL
MATERIALS MAILED FROM THE SAME LOCALE CAN NOW TURN ON THE CHANCY COURSE
OF TRANSIT OR PLACE OF DELIVERY OF THE MATERIALS.  SEE UNITED STATES V.
PALLADINO, 490 F.2D 499, 503 (CA1 1974) (COFFIN, C. J.).  NATIONAL
DISTRIBUTORS CHOOSING TO SEND THEIR PRODUCTS IN INTERSTATE TRAVELS WILL
BE FORCED TO COPE WITH THE COMMUNITY STANDARDS OF EVERY HAMLET INTO
WHICH THEIR GOODS MAY WANDER.  BECAUSE THESE VARIEGATED STANDARDS ARE
IMPOSSIBLE TO DISCERN, NATIONAL DISTRIBUTORS, FEARFUL OF RISKING THE
EXPENSE AND DIFFICULTY OF DEFENDING AGAINST PROSECUTION IN ANY OF
SEVERAL REMOTE COMMUNITIES, MUST INEVITABLY BE LED TO RETREAT TO
DEBILITATING SELFCENSORSHIP THAT ABRIDGES THE FIRST AMENDMENT RIGHTS OF
THE PEOPLE.  FOR IT "WOULD TEND TO RESTRICT THE PUBLIC'S ACCESS TO
FORMS (OF SEXUALLY ORIENTED MATERIALS) WHICH THE (UNITED STATES) COULD
NOT CONSTITUTIONALLY SUPPRESS DIRECTLY . . . A CENSORSHIP . . . HARDLY
LESS VIRULENT FOR BEING PRIVATELY ADMINISTERED(, FOR) (THROUGH IT, THE
DISTRIBUTION OF ALL (SEXUALLY ORIENTED MATERIALS), BOTH OBSCENE AND NOT
OBSCENE, WOULD BE IMPEDED,"  SMITH V. CALIFORNIA, 361 U.S. 147, 154
(1959).  THUS, THE PEOPLE OF MANY COMMUNITIES WILL BE "PROTECTED" FAR
BEYOND GOVERNMENT'S CONSTITUTIONAL POWER TO DENY THEM ACCESS TO
SEXUALLY ORIENTED MATERIALS.  A CONSTRUCTION THAT HAS SUCH CONSEQUENCES
NECESSARILY RENDERS THE CONSTITUTIONALITY OF AMENDED 1461 FACIALLY
SUSPECT UNDER THE FIRST AMENDMENT. 

        III 

BUT EVEN ON THE ASSUMPTION THAT AMENDED 1461 IS INVULNERABLE TO
CONSTITUTIONAL ATTACK, THE COURT'S AFFIRMANCE OF THESE CONVICTIONS IS A
PARTENTLY INDEFENSIBLE DENIAL TO THESE PETITIONERS OF DUE PROCESS OF
LAW.  THE TRIAL JUDGE FOLLOWED MANUAL ENTERPRISE'S CONSTRUCTION OF
AMENDED 1461 THAT REQUIRED A DETERMINATION OF GUILT UPON THE BASIS OF A
"NATIONAL" STANDARD OF DECENCY.  THE COURT HOLDS THAT UNDER TODAY'S NEW
"LOCAL" STANDARDS CONSTRUCTION, THIS WAS ERROR.  YET, SAYS THE COURT,
THE ERROR IN EFFECT WAS HARMLESS BECAUSE THE REFERENCES IN THE
INSTRUCTIONS TO "NATIONAL" STANDARDS COULD NOT HAVE "MATERIALLY
AFFECTED (THE JURORS') DELIBERATIONS.  . . ."  ANTE, AT 108.  THE TRIAL
TRANSCRIPT LAYS BARE THE UTTER FALLACY OF THAT CONCLUSION. 

FIRST, THE COURT APPRAISES THE TRIAL COURT'S REFERENCES TO
"NATIONAL" STANDARDS AS "ISOLATED," AND CITES BOYD V. UNITED STATES,
271 U.S. 104, 107 (1926), ANTE, AT 107 - 108, WHERE THE COURT HELD THAT
AN AMBIGUOUS STATEMENT IN A CHARGE IN A CRIMINAL CASE, WHICH,
INTERPRETED ONE WAY, WOULD BE ERRONEOUS, BUT WHICH CONSIDERED WITH THE
CHARGE AS A WHOLE, PROBABLY WAS UNDERSTOOD BY THE JURORS IN A HARMLESS
SENSE, IS NOT A GROUND FOR REVERSAL.  BUT TO REPRESENT THE REFERENCES
TO "NATIONAL" STANDARDS IN THE COURT'S INSTRUCTIONS AS "ISOLATED," AND
PROBABLY UNDERSTOOD BY THE JURY IN A HARMLESS SENSE, IS COMPLETELY TO
MISREAD THE INSTRUCTIONS.  THE EMPHASIS ON "NATIONAL" STANDARDS IS THE
VERY CORE OF THE INSTRUCTIONS, BECAUSE THE TRIAL JUDGE MADE "NATIONAL"
STANDARDS THE CENTRAL CRITERION OF THE DETERMINATION OF THE OBSCENITY
OF THE BROCHURE.  HE REFERRED TO "NATIONAL" STANDARDS IN HIS
INSTRUCTIONS NO LESS THAN 18 TIMES, 14 OF THEM WITHIN THE SPACE OF FOUR
TRANSCRIPT PAGES.  /3/  INDEED, HIS EMPHASIS MADE SUCH AN IMPRESSION
UPON THE JURORS' MINDS THAT THEY RETURNED FROM THE JURY ROOM AND
REQUESTED THAT THE TRIAL JUDGE REREAD THEM THIS PORTION OF THE
INSTRUCTIONS.  SEE TR. 4989 - 4990.  /4/ 

OF AT LEAST AS MUCH--IF NOT MORE--SIGNIFICANCE, THE TRIAL JUDGE'S
REFUSAL TO PERMIT THE DEFENSE TO OFFER PROOF OF "LOCAL" STANDARDS
EVIDENCES HOW UTTERLY MISTAKEN IS THE COURT'S SURMISE THAT THE EMPHASIS
UPON "NATIONAL" STANDARDS IN THE INSTRUCTIONS COULD NOT HAVE
"MATERIALLY AFFECTED" THE DELIBERATIONS OF THE JURORS.  VIRGINIA
CARLSEN WAS OFFERED AS A DEFENSE WITNESS.  TRIAL WAS IN THE SOUTHERN
DISTRICT OF CALIFORNIA WHICH COVERS SAN DIEGO AND IMPERIAL COUNTIES. 
MISS CARLSEN TESTIFIED THAT, UNDER THE SUPERVISION OF A PROFESSOR AT
SAN DIEGO STATE UNIVERSITY, SHE POLLED SAN DIEGO RESIDENTS TO ASCERTAIN
THEIR REACTION TO THE BROCHURE.  THE TRIAL JUDGE REFUSED TO ADMIT THE
RESULTS OF HER SURVEY IN EVIDENCE, DESPITE A SIDE-BAR OFFER OF PROOF
THAT IT WOULD DEMONSTRATE THAT A SUBSTANTIAL MAJORITY OF THE 718
PERSONS INTERVIEWED HAD EXPRESSED THE VIEW THAT THE BROCHURE SHOULD BE
GENERALLY AVAILABLE TO THE PUBLIC.  SIGNIFICANTLY, THE SURVEY WAS
EXCLUDED BY THE TRIAL JUDGE SOLELY ON THE GROUND THAT "(YOU CAN'T USE A
PIECE OF A STANDARD AS THE STANDARD," THUS EMPHASIZING THAT GUILT WAS
TO BE PREDICATED ON VIOLATION OF A NATIONAL STANDARD, OR NOT AT ALL. 
THE COLLOQUY AT SIDE BAR WAS AS FOLLOWS: 

     "MR. KATZ.  . . . THE QUESTIONS ON THE SURVEY I THINK ARE

  SELF-EXPLANATORY.  SHE SHOWED PEOPLE THE ILLUSTRATED REPORT; SHE

  SHOWED PEOPLE THE SURVEY--I MEAN THE ADVERTISEMENT IN THE

  QUESTIONNAIRE, AND RECORDED THEIR RESPONSES AND CALCULATED THEM

  ON THE BASIS OF SEX AND ON THE BASIS OF AGE, AND I THINK THE JURY

  SHOULD BE ENTITLED, YOUR HONOR, TO USE THIS AS ONE OF THE TESTS

  THEY USE IN DECIDING WHAT IS (SIC) COMMUNITY STANDARDS AND WHAT

WEIGHT SHOULD BE GIVEN TO IT IS A QUESTION FOR THE JURY. 

     "THE COURT.  WELL, I DON'T AGREE WITH YOU, MR. KATZ, AT ALL. 

     "I THINK YOU HAVE A NATIONAL STANDARD HERE.  YOU ARE GOING TO

  HAVE TO STAY WITH YOUR NATIONAL STANDARD. 

     "I THINK IT DOES GO TO THE ADMISSIBILITY.  YOU CAN'T USE A

  PIECE OF A STANDARD AS THE STANDARD.  IF THAT WERE TRUE, YOU

  WOULD DEFEAT THE ENTIRE GENERAL STANDARD. 

     "SO I AM NOT GOING TO PERMIT YOU TO GO ANY FURTHER WITH THIS

  WITNESS WITH RESPECT TO THIS."  TR. 3932 - 3933 (EMPHASIS

  SUPPLIED). 

     "MR. FLEISHMAN.  . . . I THINK WHATEVER LIMITATIONS YOUR HONOR

  WOULD PUT ON IT WOULD BE CORRECT, BUT I THINK IT WOULD BE AND

  SHOULD BE ADMITTED FOR WHATEVER WEIGHT IT HAS. 

     "THE COURT.  NO. IT IS A NATIONAL STANDARD AND I DON'T THINK

  THIS IS THE PROPER WAY TO GO ABOUT DETERMINING THE NATIONAL

  STANDARD."  TR. 3937 (EMPHASIS SUPPLIED). 

THE AFFIRMANCE OF PETITIONERS' CONVICTIONS IN THESE CIRCUMSTANCES
PLAINLY DENIES PETITIONERS DUE PROCESS OF LAW IN VIOLATION OF THE
PRINCIPLE OF SAUNDERS V. SHAW, 244 U.S. 317 (1917).  THERE, THE
PLAINTIFF SOUGHT TO ENJOIN COLLECTION OF A DRAINAGE TAX.  AT TRIAL, THE
TRIAL JUDGE RULED INADMISSIBLE PLAINTIFF'S EVIDENCE THAT HIS LAND WOULD
NOT BENEFIT FROM CERTAIN DRAINAGE IMPROVEMENTS.  DEFENDANT THEREFORE
OFFERED NO PROOF THAT THE PLAINTIFF'S LANDS WOULD BENEFIT AND PREVAILED
AT TRIAL.  THE STATE SUPREME COURT REVERSED AND GRANTED A PERMANENT
INJUNCTION AGAINST THE TAX UPON FINDING FROM THE ANSWER AND TESTIMONY
BEFORE IT THAT THE LAND HAD NOT BEEN, AND COULD NOT BE, BENEFITED.  WE
REVERSED, HOLDING THAT IT WAS A VIOLATION OF DUE PROCESS OF LAW FOR A
STATE SUPREME COURT TO REVERSE A CASE AND RENDER JUDGMENT ABSOLUTE,
AGAINST A DEFENDANT WHO SUCCEEDED IN THE TRIAL COURT, UPON A
PROPOSITION OF FACT THAT WAS RULED TO BE IMMATERIAL AT THE TRIAL AND
CONCERNING WHICH THE DEFENDANT HAD THEREFORE NO OCCASION AND NO PROPER
OPPORTUNITY TO INTRODUCE REBUTTAL EVIDENCE. 

PETITIONERS' SITUATION IN THIS CASE IS IDENTICAL WITH THAT OF THE
DEFENDANT IN SAUNDERS.  PETITIONERS, TOO, WERE DENIED AT TRIAL
ADMISSION OF EVIDENCE UPON A PROPOSITION OF FACT THAT WAS RULED
IMMATERIAL AND CONCERNING WHICH THEY THEREFORE HAD NO PROPER
OPPORTUNITY TO INTRODUCE THEIR PROOF.  HAD PETITIONERS BEEN AWARE THAT
THE PROPER CRITERION WAS THE "LOCAL" STANDARD, NOT ONLY WERE THEY
PREPARED TO OFFER PROOF OF THE "LOCAL" STANDARD, BUT OBVIOUSLY THE
STRATEGY OF THEIR DEFENSE WOULD HAVE BEEN COMPLETELY DIFFERENT.  TO
AFFIRM THEIR CONVICTIONS WITHOUT AFFORDING THEM OPPORTUNITY TO TRY THE
CASE ON THE "LOCAL" STANDARDS BASIS IS A CLEAR DENIAL OF DUE PROCESS. 
SAUNDERS WAS, OF COURSE, A CIVIL CASE.  BUT THE PRINCIPLE THERE
ANNOUNCED SURELY HAS EVEN GREATER APPLICATION WHERE, AS HERE, CRIMINAL
CONVICTIONS CARRYING LONG PRISON SENTENCES ARE INVOLVED. 

"THE RIGHT TO PRESENT EVIDENCE IS, OF COURSE, ESSENTIAL TO THE FAIR
HEARING REQUIRED BY THE DUE PROCESS CLAUSE.  . . . AND . . . THIS RIGHT
BECOMES PARTICULARLY FUNDAMENTAL WHEN THE PROCEEDING ALLEGEDLY RESULTS
IN A FINDING THAT A PARTICULAR INDIVIDUAL WAS GUILTY OF A CRIME." 
JENKINS V. MCKEITHEN, 395 U.S. 411, 429 (1969) (OPINION OF MARSHALL,
J.). 

BUT IN ADDITION TO THE PALPABLE ABSURDITY OF THE COURT'S SURMISES
THAT INTRODUCTION OF THE SAN DIEGO STUDY COULD NOT HAVE AFFECTED THE
JURORS'  DELIBERATIONS, AND THAT PETITIONERS WOULD NOT HAVE INTRODUCED
ADDITIONAL EVIDENCE OR DONE ANYTHING MATERIALLY DIFFERENT HAD THEY
KNOWN THE JURORS WOULD BE INSTRUCTED ON LOCAL STANDARDS, THE COURT'S
ASSERTION THAT THE JURORS COULD NOT HAVE RULED DIFFERENTLY IF
INSTRUCTED TO APPLY LOCAL, NOT NATIONAL, STANDARDS EVINCES A CLAIM OF
OMNISCIENCE HARDLY MORTAL.  IT IS THE MORE REMARKABLE IN LIGHT OF THE
CONTRARY SUPPOSITION OF MILLER V. CALIFORNIA, 413 U.S. 15 (1973), THAT
A JURY INSTRUCTED TO APPLY NATIONAL STANDARDS COULD INDEED REACH A
DIFFERENT CONCLUSION FROM WHAT IT MIGHT IF INSTRUCTED TO APPLY LOCAL
STANDARDS: 

     "IT IS NEITHER REALISTIC NOR CONSTITUTIONALLY SOUND TO READ
THE

  FIRST AMENDMENT AS REQUIRING THAT THE PEOPLE OF MAINE OR

  MISSISSIPPI ACCEPT PUBLIC DEPICTION OF CONDUCT FOUND TOLERABLE IN

  LAS VEGAS, OR NEW YORK CITY.  . . . PEOPLE IN DIFFERENT STATES

  VARY IN THEIR TASTES AND ATTITUDES, AND THIS DIVERSITY IS NOT TO

  BE STRANGLED BY THE ABSOLUTISM OF IMPOSED UNIFORMITY."  ID., AT

  32 - 33. 

INDEED, MILLER REJECTED THE "NATIONAL" STANDARDS TEST ON THE GROUND,
INTER ALIA, THAT A "LOCAL" STANDARD WOULD ALLOW A GIVEN COMMUNITY TO
APPLY A MORE PERMISSIVE TEST: 

"THE USE OF 'NATIONAL' STANDARDS . . . NECESSARILY IMPLIES THAT
MATERIALS FOUND TOLERABLE IN SOME PLACES, BUT NOT UNDER THE 'NATIONAL'
CRITERIA, WILL NEVERTHELESS BE UNAVAILABLE WHERE THEY ARE ACCEPTABLE." 
ID., AT 32 N. 13.  YET FOR THE PURPOSE OF AFFIRMING THESE CONVICTIONS
THE COURT HOLDS IN EFFECT THAT THE LOCAL STANDARDS OF JURORS DRAWN FROM
THE SOUTHERN DISTRICT OF CALIFORNIA COULD NOT POSSIBLY BE MORE
PERMISSIVE THAN THOSE OF THE NATION AS A WHOLE.  /5/ 

THE COURT'S AFFIRMANCE, IN ADDITION TO DENYING DUE PROCESS IN ITS
REFUSAL TO APPLY THE SAUNDERS PRINCIPLE ALSO DENIES PETITIONERS DUE
PROCESS IN ANOTHER WAY.  IT IS ABUNDANTLY CLEAR THAT PETITIONERS'
CONVICTIONS ARE SUSTAINED UPON A CHARGE WHOLLY DIFFERENT FROM THAT UPON
WHICH THEY WERE TRIED.  THEY WERE TRIED UPON A CHARGE OF VIOLATING
"NATIONAL" STANDARDS AND THEIR CONVICTIONS ARE AFFIRMED AS IF THEY WERE
TRIED FOR VIOLATING "LOCAL" STANDARDS.  UNDER THE LAW LONG SETTLED BY
OUR CASES, TREATING A CONVICTION AS A CONVICTION UPON A CHARGE NOT MADE
IS A DENIAL OF DUE PROCESS OF LAW.  COLE V. ARKANSAS, 333 U.S. 196
(1948); EATON V. TULSA, 415 U.S. 697 (1974).  A DISTASTE, HOWEVER
STRONG, FOR COMMERCIAL VENDORS OF ALLEGED PORNOGRAPHY IS NO
JUSTIFICATION FOR DENYING PETITIONERS THE APPLICATION OF THE PRINCIPLE
IMPOSED UPON THE COURTS OF ARKANSAS AND OKLAHOMA IN THOSE CASES.  OURS
MAY BE THE FINAL VOICE, BUT THAT IS THE GREATER REASON FOR METICULOUS
DISCHARGE OF OUR RESPONSIBILITY TO DISPENSE EVENHANDED JUSTICE.  THE
LEAST TO WHICH PETITIONERS ARE ENTITLED IS VACATION OF THEIR
CONVICTIONS AND A REMAND FOR A NEW TRIAL.     /1/  THE COURT IS, OF
COURSE, OBLIGED TO STRAIN TO CONSTRUE CONGRESSIONAL ENACTMENTS TO AVOID
CONSTITUTIONAL ATTACKS.  IT CANNOT, HOWEVER, EMASCULATE A STATUTE TO
AVOID A PERCEIVED CONSTITUTIONAL DIFFICULTY, SEE APTHEKER V. SECRETARY
OF STATE, 378 U.S. 500, 515 (1964); GEORGE MOORE ICE CREAM CO. V. ROSE,
289 U.S. 373, 379 (1933).  THE LEGISLATIVE HISTORY OF 1461 GIVES NOT
THE SLIGHTEST INDICATION THAT THE APPLICATION OF LOCAL STANDARDS WAS
CONTEMPLATED.  INDEED, THE REMARKS OF AN EARLY SPONSOR OF THE PROVISION
INDICATE THAT APPLICATION OF A NATURAL STANDARD WAS INTENDED: 

"IF THERE BE A TRIAL IN THIS COUNTRY OR ANYWHERE ELSE OF AN OBSCENE
CHARACTER--OF THAT CHARACTER THAT A REPORT OF IT WOULD CORRUPT THE
MORALS OF THE YOUTH AND THE MORALS OF THE COUNTRY GENERALLY--THEN I DO
NOT THINK THE UNITED STATES SHOULD PROVIDE THE MEANS TO CIRCULATE THAT
KIND OF LITERATURE IN WHATEVER PAPER OR IN WHATEVER BOOK IT MAY BE
PUBLISHED."  4 CONG.REC.  696 (1876) (REMARKS OF REP. CANNON) (EMPHASIS
ADDED). 

/2/  PRIOR TO THE AMENDMENT 1461 READ, "(WHOEVER KNOWINGLY DEPOSITS
FOR MAILING OR DELIVERY . . ."  (EMPHASIS ADDED).  THIS WAS CHANGED TO
READ "(WHOEVER KNOWINGLY USES THE MAILS . . . ."  THE AMENDMENT
OVERRULED UNITED STATES V. ROSS, 205 F.2D 619 (CA10 1953), WHICH HELD
THAT THE UNLAWFUL ACT PROSCRIBED IN 1461 WAS "THE DEPOSIT,"  ID., AT
621, AND THUS BROUGHT 1461 WITHIN 18 U.S.C. 3237, WHICH PROVIDES IN
RELEVANT PART THAT "(ANY OFFENSE INVOLVING THE USE OF THE MAILS, OR
TRANSPORTATION IN INTERSTATE OR FOREIGN COMMERCE, IS A CONTINUING
OFFENSE AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY ENACTMENT OF
CONGRESS, MAY BE INQUIRED OF AND PROSECUTED IN ANY DISTRICT FROM,
THROUGH, OR INTO WHICH SUCH COMMERCE OR MAIL MATTER MOVES."  SEE
GENERALLY NOTE, VENUE:  ITS IMPACT ON OBSCENITY, 11 S.D.L.REV.  363
(1966). 

/3/  THE PORTION OF THE INSTRUCTIONS CONTAINING THE 14 REFERENCES IS
AS FOLLOWS: 

"NOW, AS TO THE SECOND TEST, ANOTHER REQUIREMENT TO BE APPLIED IN
DETERMINING WHETHER THE MATERIAL IN EVIDENCE IS OBSCENE, IS WHETHER THE
MATERIAL IS PATENTLY OFFENSIVE IN THAT IT GOES SUBSTANTIALLY BEYOND
WHAT IS REASONABLY ACCEPTED ACCORDING TO THE CONTEMPORARY STANDARDS OF
THE COMMUNITY AS A WHOLE, THE NATIONAL COMMUNITY AS A WHOLE.  IN
APPLYING THIS TEST YOU MUST CONSIDER EACH BOOK OR ADVERTISEMENT AS A
WHOLE AND NOT PART BY PART.  YOU MUST MEASURE THE MATERIAL BY
CONTEMPORARY OR CURRENT NATIONAL COMMUNITY STANDARDS AND DETERMINE
WHETHER THE MATERIAL SO EXCEEDS THE CUSTOMARY LIMITS OF CANDOR IN THE
DESCRIPTIONS AND REPRESENTATIONS OF SEX AND NUDITY WHICH ARE REASONABLY
ACCEPTABLE IN THE NATIONAL COMMUNITY, THAT THEY ARE PATENTLY
OFFENSIVE. 

"CONTEMPORARY COMMUNITY STANDARDS MEANS THE STANDARDS GENERALLY HELD
THROUGHOUT THIS COUNTRY CONCERNING SEX AND MATTERS PERTAINING TO SEX. 
THE PHRASE MEANS, AS IT HAS BEEN APTLY STATED, THE AVERAGE CONSCIENCE
OF THE TIME, AND THE PRESENT CRITICAL POINT IN THE COMPROMISE BETWEEN
CANDOR AND SHAME, AT WHICH THE COMMUNITY MAY HAVE ARRIVED HERE AND
NOW. 

"YOU ARE THE SOLE JUDGES OF THE CONTEMPORARY COMMUNITY STANDARDS OF
THIS COUNTRY.  IN ARRIVING AT AND APPLYING YOUR JUDGMENT, HOWEVER, YOU
ARE NOT TO CONSIDER YOUR OWN STANDARDS.  THAT IS, OF WHAT IS GOOD OR
WHAT IS BAD.  YOU ARE NOT TO CONDEMN BY YOUR OWN STANDARDS, IF YOU KNOW
AND BELIEVE THEM TO BE STRICTER THAN THOSE GENERALLY HELD, AND YOU ARE
NOT TO EXCULPATE OR EXCUSE BY YOUR OWN STANDARDS, IF YOU KNOW AND
BELIEVE THEM TO BE MORE TOLERANT THAN THOSE THAT ARE GENERALLY HELD. 
YOU ARE NOT TO LIMIT YOURSELF TO WHAT YOU HAVE LEARNED WHILE RESIDING
IN YOUR PRESENT LOCALITY OR WHAT YOU HAVE LEARNED OR OBSERVED FROM AND
ABOUT PEOPLE RESIDING IN YOUR PRESENT LOCALITY.  RATHER, YOU ARE TO
CALL UPON EVERYTHING YOU HAVE LEARNED, SEEN, READ, AND OBSERVED FROM
BOTH THE EVIDENCE PRESENTED AT THE TRIAL AND THE EXPERIENCE YOU HAVE
GAINED FROM YOUR OWN OBSERVATIONS AND EXPERIENCES IN YOUR AFFAIRS OF
LIFE. 

"IF YOU FIND THE MATERIALS IN EVIDENCE TO SUBSTANTIALLY EXCEED THE
LIMITS OF CANDOR IN THE DESCRIPTIONS AND REPRESENTATIONS OF SEX WHICH
ARE ACCEPTABLE IN THE NATIONAL COMMUNITY, THEN YOU MAY FIND THE
MATERIAL TO BE PATENTLY OFFENSIVE. 

"YOU WILL NOTE THAT THE BOOK AND ADVERTISEMENT HERE INVOLVED CANNOT
BE FOUND TO BE OBSCENE UNLESS THE EVIDENCE SHOWS BEYOND A REASONABLE
DOUBT THAT THESE MATERIALS SUBSTANTIALLY EXCEED CUSTOMARY LIMITS OF
CANDOR IN THE NATION AS A WHOLE IN THE DESCRIPTION AND REPRESENTATION
OF SEX AND NUDITY. 

"THE WORD 'SUBSTANTIALLY' HAS BEEN DEFINED AS GREATLY OR
CONSIDERABLY, OR LARGELY.  THE CONTEMPORARY COMMUNITY STANDARDS OF THE
NATION, ARE SET BY WHAT IS, IN FACT, REASONABLY ACCEPTED BY THE
NATIONAL COMMUNITY AS A WHOLE.  THAT IS TO SAY, BY SOCIETY AT LARGE OR
PEOPLE IN GENERAL THROUGHOUT THE NATION, AND NOT BY WHAT SOME PERSONS
OR GROUPS OF PERSONS MAY BELIEVE THE NATIONAL COMMUNITY AS A WHOLE
OUGHT TO ACCEPT OR REFUSE TO ACCEPT.  IT IS A MATTER OF COMMON
KNOWLEDGE OF WHICH THE COURT TAKES JUDICIAL NOTICE, THAT THE CUSTOMS
CHANGE AND THAT THE NATIONAL COMMUNITY AS A WHOLE MAY, FROM TIME TO
TIME, FIND ACCEPTABLE THAT WHICH WAS FORMERLY UNACCEPTABLE. 

"NOW, IN DETERMINING AND APPLYING CONTEMPORARY NATIONAL COMMUNITY
STANDARDS, YOU MUST CONSIDER WHAT APPEARS GENERALLY IN MAGAZINES,
BOOKS, NEWSPAPERS, TELEVISION, BURLESQUE, NIGHT CLUBS, NOVELS, MOTION
PICTURES, THE STAGE, AND OTHER MEDIA OF COMMUNICATIONS IN THE NATION AS
A WHOLE, INSOFAR AS SOCIAL VALUE IS CONCERNED."  TR. 4948 - 4951, APP.
241 - 243 (EMPHASIS SUPPLIED). 

FOUR ADDITIONAL REFERENCES TO NATIONAL STANDARDS APPEAR AT PAGES
4945, 4953, AND 4960 OF THE TRIAL TRANSCRIPT. 

/4/  PETITIONERS' FAILURE TO OBJECT TO THE NATIONAL-STANDARDS
INSTRUCTIONS CAN HARDLY BE USED TO SHIFT TO THEIR SHOULDERS ANY BURDEN
OF DEMONSTRATING PREJUDICE.  SEE O'CONNOR V. OHIO, 385 U.S. 92 (1966). 
THE COURT'S RELIANCE UPON NAMET V. UNITED STATES, 373 U.S. 179, 190 -
191 (1963), AND LOPEZ V. UNITED STATES, 373 U.S. 427, 436 (1963), CASES
IN WHICH DEFENDANTS FAILED TO OBJECT TO INSTRUCTIONS WHICH WERE
ERRONEOUS AT THE TIME THE JURY WAS INSTRUCTED AND IN WHICH THE
DEFENDANTS WERE THEREFORE REQUIRED TO DEMONSTRATE THAT THE INSTRUCTIONS
CONSTITUTED "PLAIN ERROR,"  ARE THUS INAPT. 

/5/  IT MAY BE THAT THE COURT'S UNARTICULATED ASSUMPTION IS THAT
JURORS INSTRUCTED TO APPLY "NATIONAL" STANDARDS WILL INEVITABLY APPLY
THE STANDARDS OF THEIR LOCAL COMMUNITY, BECAUSE NATIONAL STANDARDS ARE
SIMPLY "UNASCERTAINABLE."  BUT TO SAY THAT IT MAY BE DIFFICULT OR EVEN
IMPOSSIBLE TO DETERMINE NATIONAL STANDARDS IS A FAR CRY FROM SAYING
THAT THE JURORS--INSTRUCTED THAT IT IS THEIR SOLEMN DUTY TO APPLY THE
LAW AS PRONOUNCED BY THE COURT--WOULD NOT ATTEMPT TO DO SO; OR, INDEED,
THAT THEY WOULD NOT REACH A CONCLUSION THAT THE NATIONAL STANDARDS
DIFFERED FROM THOSE OF THEIR LOCAL COMMUNITY. 

STANLEY FLEISHMAN ARGUED THE CAUSE FOR PETITIONERS HAMLING ET AL.
WITH HIM ON THE BRIEFS WAS SAM ROSENWEIN.  MR. ROSENWEIN ARGUED THE
CAUSE FOR PETITIONERS KEMP ET AL. WITH HIM ON THE BRIEFS WERE MR.
FLEISHMAN AND LOUIS S. KATZ. 

ALLAN ABBOTT TUTTLE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY
GENERAL PETERSEN, JEROME M. FEIT, AND SHIRLEY BACCUS-LOBEL.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MELVIN L.
WULF, JOEL M. GORA, AND FRED OKRAND FOR THE AMERICAN CIVIL LIBERTIES
UNION ET AL.; BY M. IRA MILLSTEIN FOR THE ASSOCIATION OF AMERICAN
PUBLISHERS, INC.; AND BY WILLIAM D. NORTH FOR THE AMERICAN LIBRARY
ASSN.
..END :





JENKINS V. GEORGIA, 418 U.S. 153 


       JENKINS V. GEORGIA

        APPEAL FROM THE SUPREME COURT OF GEORGIA

        NO. 73 - 557.  ARGUED APRIL 15, 1974--DECIDED JUNE 24,
1974;

           230 GA. 726, 199 S.E.2D 183, REVERSED. 


    APPELLANT WAS CONVICTED, PRIOR TO THE ANNOUNCEMENT OF MILLER V.

  CALIFORNIA, 413 U.S. 15, AND COMPANION CASES, OF VIOLATING

  GEORGIA'S OBSCENITY STATUTE FOR SHOWING THE FILM "CARNAL

  KNOWLEDGE" IN A MOTION PICTURE THEATER.  THE JURY HAD BEEN

  INSTRUCTED ON OBSCENITY UNDER THAT STATUTE, WHICH DEFINES OBSCENE

  MATERIAL IN TERMS SIMILAR TO THE DEFINITION IN MEMOIRS V.

  MASSACHUSETTS, 383 U.S. 413, 418.  THE GEORGIA SUPREME COURT

  AFFIRMED.  HELD: 

   1.  APPELLANT, WHOSE CONVICTION WAS ON APPEAL AT THE TIME OF

  THE ANNOUNCEMENT OF MILLER, IS ENTITLED TO ANY BENEFIT AVAILABLE

  THEREUNDER.  HAMLING V. UNITED STATES, ANTE, P. 87.  P. 155. 

     2.  THERE IS NO CONSTITUTIONAL REQUIREMENT THAT JURIES BE

  INSTRUCTED IN STATE OBSCENITY CASES TO APPLY THE STANDARDS OF A

  HYPOTHETICAL STATEWIDE COMMUNITY--MILLER APPROVING, BUT NOT

  MANDATING, SUCH AN INSTRUCTION; AND JURORS MAY PROPERLY BE

  INSTRUCTED TO APPLY "COMMUNITY STANDARDS,"  WITHOUT A

  SPECIFICATION OF THE "COMMUNITY" BY THE TRIAL COURT.  P. 157. 

     3.  THE FILM IS NOT OBSCENE UNDER THE CONSTITUTIONAL STANDARDS

  ANNOUNCED IN MILLER AND APPELLANT'S CONVICTION THEREFORE

  CONTRAVENED THE FIRST AND FOURTEENTH AMENDMENTS.  PP. 157 - 161. 

     (A) JURIES DO NOT HAVE UNBRIDLED DISCRETION IN DETERMINING
WHAT

  IS "PATENTLY OFFENSIVE" SINCE "NO ONE WILL BE SUBJECT TO

  PROSECUTION FOR THE SALE OR EXPOSURE OF OBSCENE MATERIALS (THAT

  DO NOT) DEPICT OR DESCRIBE PATENTLY OFFENSIVE 'HARD CORE' SEXUAL

  CONDUCT.  . . ."  MILLER, SUPRA, AT 27.  PP. 160 - 161. 

     (B) THIS COURT'S OWN VIEW OF THE FILM IMPELS THE CONCLUSION

  THAT THE FILM'S DEPICTION OF SEXUAL CONDUCT IS NOT PATENTLY

  OFFENSIVE.  THE CAMERA DOES NOT FOCUS ON THE BODIES OF ACTORS

  DURING SCENES OF "ULTIMATE SEXUAL ACTS,"  NOR ARE THE ACTORS'

  GENITALS EXHIBITED DURING THOSE SCENES.  THE FILM SHOWS

  OCCASIONAL NUDITY, NUDITY ALONE DOES NOT RENDER MATERIAL OBSCENE

  UNDER MILLER'S STANDARDS.  P. 161. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS, J.,
FILED A STATEMENT CONCURRING IN THE RESULT, POST, P. 162.  BRENNAN, J.,
FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH STEWART AND
MARSHALL, JJ., JOINED, POST, P. 162. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

APPELLANT WAS CONVICTED IN GEORGIA OF THE CRIME OF DISTRIBUTING
OBSCENE MATERIAL.  HIS CONVICTION, IN MARCH 1972, WAS FOR SHOWING THE
FILM "CARNAL KNOWLEDGE"  IN A MOVIE THEATER IN ALBANY, GEORGIA.  THE
JURY THAT FOUND APPELLANT GUILTY WAS INSTRUCTED ON OBSCENITY PURSUANT
TO THE GEORGIA STATUTE, WHICH DEFINES OBSCENE MATERIAL IN LANGUAGE
SIMILAR TO THAT OF THE DEFINITION OF OBSCENITY SET FORTH IN THIS
COURT'S PLURALITY OPINION IN MEMOIRS V. MASSACHUSETTS, 383 U.S. 413,
418 (1966): 

"MATERIAL IS OBSCENE IF CONSIDERED AS A WHOLE, APPLYING COMMUNITY
STANDARDS, ITS PREDOMINANT APPEAL IS TO PRURIENT INTEREST, THAT IS, A
SHAMEFUL OR MORBID INTEREST IN NUDITY, SEX OR EXCRETION, AND UTTERLY
WITHOUT REDEEMING SOCIAL VALUE AND IF, IN ADDITION, IT GOES
SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN DESCRIBING OR
REPRESENTING SUCH MATTERS."  GA. CODE ANN. 26 - 2101 (B) (1972).  /1/ 

WE HOLD TODAY IN HAMLING V. UNITED STATES, ANTE, P. 87, THAT
DEFENDANTS CONVICTED PRIOR TO THE ANNOUNCEMENT OF OUR MILLER DECISIONS
BUT WHOSE CONVICTIONS WERE ON DIRECT APPEAL AT THAT TIME SHOULD RECEIVE
ANY BENEFIT AVAILABLE TO THEM FROM THOSE DECISIONS.  WE CONCLUDE HERE
THAT THE FILM "CARNAL KNOWLEDGE" IS NOT OBSCENE UNDER THE
CONSTITUTIONAL STANDARDS ANNOUNCED IN MILLER V. CALIFORNIA, 413 U.S. 15
(1973), AND THAT THE FIRST AND FOURTEENTH AMENDMENTS THEREFORE REQUIRE
THAT THE JUDGMENT OF THE SUPREME COURT OF GEORGIA AFFIRMING APPELLANT'S
CONVICTION BE REVERSED. 

APPELLANT WAS THE MANAGER OF THE THEATER IN WHICH "CARNAL KNOWLEDGE"
WAS BEING SHOWN.  WHILE HE WAS EXHIBITING THE FILM ON JANUARY 13,
1972, LOCAL LAW ENFORCEMENT OFFICERS SEIZED IT PURSUANT TO A SEARCH
WARRANT.  APPELLANT WAS LATER CHARGED BY ACCUSATION, GA. CODE ANN. 27 -
704 (1972), WITH THE OFFENSE OF DISTRIBUTING OBSCENE MATERIAL.  /2/
AFTER HIS TRIAL IN THE SUPERIOR COURT OF DOUGHERTY COUNTY, THE JURY,
HAVING SEEN THE FILM AND HEARD TESTIMONY, RETURNED A GENERAL VERDICT OF
GUILTY ON MARCH 23, 1972.  /3/  APPELLANT WAS FINED $750 AND SENTENCED
TO 12 MONTHS' PROBATION.  HE APPEALED TO THE SUPREME COURT OF GEORGIA,
WHICH BY A DIVIDED VOTE AFFIRMED THE JUDGMENT OF CONVICTION ON JULY 2,
1973.  THAT COURT STATED THAT THE DEFINITION OF OBSCENITY CONTAINED IN
THE GEORGIA STATUTE WAS "CONSIDERABLY MORE RESTRICTIVE"  THAN THE NEW
TEST SET FORTH IN THE RECENT CASE OF MILLER V. CALIFORNIA, SUPRA, AND
THAT THE FIRST AMENDMENT DOES NOT PROTECT THE COMMERCIAL EXHIBITION OF
"HARD CORE"  PORNOGRAPHY.  THE DISSENTING JUSTICES, IN ADDITION TO
OTHER DISAGREEMENTS WITH THE COURT, THOUGHT THAT "CARNAL KNOWLEDGE" WAS
ENTITLED TO THE PROTECTION OF THE FIRST AND FOURTEENTH AMENDMENTS. 
APPELLANT THEN APPEALED TO THIS COURT AND WE NOTED PROBABLE
JURISDICTION, 414 U.S. 1090 (1973). 

WE AGREE WITH THE SUPREME COURT OF GEORGIA'S IMPLICIT RULING THAT
THE CONSTITUTION DOES NOT REQUIRE THAT JURIES BE INSTRUCTED IN STATE
OBSCENITY CASES TO APPLY THE STANDARDS OF A HYPOTHETICAL STATEWIDE
COMMUNITY.  MILLER APPROVED THE USE OF SUCH INSTRUCTIONS; IT DID NOT
MANDATE THEIR USE.  WHAT MILLER MAKES CLEAR IS THAT STATE JURIES NEED
NOT BE INSTRUCTED TO APPLY "NATIONAL STANDARDS."  WE ALSO AGREE WITH
THE SUPREME COURT OF GEORGIA'S IMPLICIT APPROVAL OF THE TRIAL COURT'S
INSTRUCTIONS DIRECTING JURORS TO APPLY "COMMUNITY STANDARDS" WITHOUT
SPECIFYING WHAT "COMMUNITY."  MILLER HELD THAT IT WAS CONSTITUTIONALLY
PERMISSIBLE TO PERMIT JURIES TO RELY ON THE UNDERSTANDING OF THE
COMMUNITY FROM WHICH THEY CAME AS TO CONTEMPORARY COMMUNITY STANDARDS,
AND THE STATES HAVE CONSIDERABLE LATITUDE IN FRAMING STATUTES UNDER
THIS ELEMENT OF THE MILLER DECISION.  A STATE MAY CHOOSE TO DEFINE AN
OBSCENITY OFFENSE IN TERMS OF "CONTEMPORARY COMMUNITY STANDARDS" AS
DEFINED IN MILLER WITHOUT FURTHER SPECIFICATION, AS WAS DONE HERE, OR
IT MAY CHOOSE TO DEFINE THE STANDARDS IN MORE PRECISE GEOGRAPHIC TERMS,
AS WAS DONE BY CALIFORNIA IN MILLER. 

WE NOW TURN TO THE QUESTION OF WHETHER APPELLANT'S EXHIBITION OF THE
FILM WAS PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS, A QUESTION
WHICH APPELLEE ASSERTS IS NOT PROPERLY BEFORE US BECAUSE APPELLANT DID
NOT RAISE IT ON HIS STATE APPEAL.  BUT WHETHER OR NOT APPELLANT ARGUED
THIS CONSTITUTIONAL ISSUE BELOW, IT IS CLEAR THAT THE SUPREME COURT OF
GEORGIA REACHED AND DECIDED IT.  THAT IS SUFFICIENT UNDER OUR
PRACTICE.  RALEY V. OHIO, 360 U.S. 423, 436 (1959).  WE ALSO NOTE THAT
THE TRIAL COURT INSTRUCTED THE JURY ON CHARGES OTHER THAN THE
DISTRIBUTION CHARGE.  /4/  HOWEVER, THE JURY RETURNED A GENERAL VERDICT
AND APPELLEE DOES NOT SUGGEST THAT APPELLANT'S CONVICTION CAN BE
SUSTAINED ON THESE ALTERNATIVE GROUNDS.  CF. STROMBERG V. CALIFORNIA,
283 U.S. 359, 367 - 368 (1931). 

THERE IS LITTLE TO BE FOUND IN THE RECORD ABOUT THE FILM "CARNAL
KNOWLEDGE" OTHER THAN THE FILM ITSELF.  /5/  HOWEVER, APPELLANT HAS
SUPPLIED A VARIETY OF INFORMATION AND CRITICAL COMMENTARY, THE
AUTHENTICITY OF WHICH APPELLEE DOES NOT DISPUTE.  THE FILM APPEARED ON
MANY "TEN BEST" LISTS FOR 1971, THE YEAR IN WHICH IT WAS RELEASED. 
MANY BUT NOT ALL OF THE REVIEWS WERE FAVORABLE.  WE BELIEVE THAT THE
FOLLOWING PASSAGE FROM A REVIEW WHICH APPEARED IN THE SATURDAY REVIEW
IS A REASONABLY ACCURATE DESCRIPTION OF THE FILM: 

    "(IT IS BASICALLY A STORY) OF TWO YOUNG COLLEGE MEN, ROOMMATES

  AND LIFELONG FRIENDS FOREVER PREOCCUPIED WITH THEIR SEX LIVES. 

  BOTH ARE FIRST MET AS VIRGINS.  NICHOLSON IS THE MORE

  KNOWLEDGEABLE AND ATTRACTIVE OF THE TWO; SPEAKING COLLOQUIALLY,

  HE IS A BURGEONING BASTARD.  ART GARFUNKEL IS HIS FRIEND, THE

  NICE BUT TROUBLED GUY STRAIGHT OUT OF THOSE EARLY FEIFFER

  CARTOONS, BUT REAL.  HE FALLS IN LOVE WITH THE LOVELY SUSAN

  (CANDICE BERGEN) AND UNKNOWINGLY SHARES HER WITH HIS COLLEGE

  BUDDY.  AS THE 'SAFER' ONE OF THE TWO, HE IS SELECTED BY SUSAN

  FOR MARRIAGE. 

     "THE TIME CHANGES.  BOTH MEN ARE IN THEIR THIRTIES, PURSUING

  SUCCESSFUL CAREERS IN NEW YORK.  NICHOLSON HAS BEEN RUNNING

  THROUGH AN AVERAGE OF A DOZEN WOMEN A YEAR BUT HAS NEVER MANAGED

  TO MEET THE RIGHT ONE, THE ONE WITH THE FULL BOSOM, THE GOOD

  LEGS, THE PROPERLY ROUNDED BOTTOM.  MORE THAN THAT, EACH AND

  EVERY ONE IS A THREAT TO HIS MALEHOOD AND PEACE OF MIND, UNTIL AT

  LAST, IN A BAR, HE FINDS ANN-MARGRET, AN AGING BACHELOR GIRL WITH

  STRIKING CLEAVAGE AND, QUITE OBVIOUSLY, SOMETHING OF A PAST. 

  'WHY DON'T WE SHACK UP?'  SHE SUGGESTS.  THEY DO AND A HORRENDOUS

  RELATIONSHIP ENSUES, COMPLICATED MAINLY BY HER PARANOIDAL DESIRE

  TO MARRY.  MEANWHILE, WHAT OF GARFUNKEL?  THE SPARKS HAVE GONE

  OUT OF HIS MARRIAGE, THE SEX HAS LOST ITS SAVOR, AND GARFUNKEL

  TRIES ONCE MORE.  AND LATER, EVEN MORE FOOLISHLY, AGAIN."  /6/ 

APPELLEE CONTENDS ESSENTIALLY THAT UNDER MILLER THE OBSCENITY VEL
NON OF THE FILM "CARNAL KNOWLEDGE" WAS A QUESTION FOR THE JURY, AND
THAT THE JURY HAVING RESOLVED THE QUESTION AGAINST APPELLANT, AND THERE
BEING SOME EVIDENCE TO SUPPORT ITS FINDINGS, THE JUDGMENT OF CONVICTION
SHOULD BE AFFIRMED.  WE TURN TO THE LANGUAGE OF MILLER TO EVALUATE
APPELLEE'S CONTENTION. 

MILLER STATES THAT THE QUESTIONS OF WHAT APPEALS TO THE "PRURIENT
INTEREST"  AND WHAT IS "PATENTLY OFFENSIVE" UNDER THE OBSCENITY TEST
WHICH IT FORMULATES ARE "ESSENTIALLY QUESTIONS OF FACT."  413 U.S.,AT
30.  "WHEN TRIERS OF FACT ARE ASKED TO DECIDE WHETHER 'THE AVERAGE
PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS'  WOULD CONSIDER
CERTAIN MATERIALS 'PRURIENT' IT WOULD BE UNREALISTIC TO REQUIRE THAT
THE ANSWER BE BASED ON SOME ABSTRACT FORMULATION.  . . . TO REQUIRE A
STATE TO STRUCTURE OBSCENITY PROCEEDINGS AROUND EVIDENCE OF A NATIONAL
'COMMUNITY STANDARD'  WOULD BE AN EXERCISE IN FUTILITY."  IBID.  WE
HELD IN PARIS ADULT THEATRE I V. SLATON, 413 U.S. 49 (1973), DECIDED ON
THE SAME DAY, THAT EXPERT TESTIMONY AS TO OBSCENITY IS NOT NECESSARY
WHEN THE FILMS AT ISSUE ARE THEMSELVES PLACED IN EVIDENCE.  ID., AT
56. 

BUT ALL OF THIS DOES NOT LEAD US TO AGREE WITH THE SUPREME COURT OF
GEORGIA'S APPARENT CONCLUSION THAT THE JURY'S VERDICT AGAINST APPELLANT
VIRTUALLY PRECLUDED ALL FURTHER APPELLATE REVIEW OF APPELLANT'S
ASSERTION THAT HIS EXHIBITION OF THE FILM WAS PROTECTED BY THE FIRST
AND FOURTEENTH AMENDMENTS.  EVEN THOUGH QUESTIONS OF APPEAL TO THE
"PRURIENT INTEREST" OR OF PATENT OFFENSIVENESS ARE "ESSENTIALLY
QUESTIONS OF FACT," IT WOULD BE A SERIOUS MISREADING OF MILLER TO
CONCLUDE THAT JURIES HAVE UNBRIDLED DISCRETION IN DETERMINING WHAT IS
"PATENTLY OFFENSIVE."  NOT ONLY DID WE THERE SAY THAT "THE FIRST
AMENDMENT VALUES APPLICABLE TO THE STATES THROUGH THE FOURTEENTH
AMENDMENT ARE ADEQUATELY PROTECTED BY THE ULTIMATE POWER OF APPELLATE
COURTS TO CONDUCT AN INDEPENDENT REVIEW OF CONSTITUTIONAL CLAIMS WHEN
NECESSARY," 413 U.S.,AT 25, BUT WE MADE IT PLAIN THAT UNDER THAT
HOLDING "NO ONE WILL BE SUBJECT TO PROSECUTION FOR THE SALE OR EXPOSURE
OF OBSCENE MATERIALS UNLESS THESE MATERIALS DEPICT OR DESCRIBE PATENTLY
OFFENSIVE 'HARD CORE'  SEXUAL CONDUCT.  . . ."  ID., AT 27. 

WE ALSO TOOK PAINS IN MILLER TO "GIVE A FEW PLAIN EXAMPLES OF WHAT A
STATE STATUTE COULD DEFINE FOR REGULATION UNDER PART (B) OF THE
STANDARD ANNOUNCED,"  THAT IS, THE REQUIREMENT OF PATENT
OFFENSIVENESS.  ID., AT 25.  THESE EXAMPLES INCLUDED "REPRESENTATIONS
OR DESCRIPTIONS OF ULTIMATE SEXUAL ACTS, NORMAL OR PERVERTED, ACTUAL OR
SIMULATED," AND "REPRESENTATIONS OR DESCRIPTIONS OF MASTURBATION,
EXCRETORY FUNCTIONS, AND LEWD EXHIBITION OF THE GENITALS."  IBID.
WHILE THIS DID NOT PURPORT TO BE AN EXHAUSTIVE CATALOG OF WHAT JURIES
MIGHT FIND PATENTLY OFFENSIVE, IT WAS CERTAINLY INTENDED TO FIX
SUBSTANTIVE CONSTITUTIONAL LIMITATIONS, DERIVING FROM THE FIRST
AMENDMENT, ON THE TYPE OF MATERIAL SUBJECT TO SUCH A DETERMINATION.  IT
WOULD BE WHOLLY AT ODDS WITH THIS ASPECT OF MILLER TO UPHOLD AN
OBSCENITY CONVICTION BASED UPON A DEFENDANT'S DEPICTION OF A WOMAN WITH
A BARE MIDRIFF, EVEN THOUGH A PROPERLY CHARGED JURY UNANIMOUSLY AGREED
ON A VERDICT OF GUILTY. 

OUR OWN VIEWING OF THE FILM SATISFIES US THAT "CARNAL KNOWLEDGE"
COULD NOT BE FOUND UNDER THE MILLER STANDARDS TO DEPICT SEXUAL CONDUCT
IN A PATENTLY OFFENSIVE WAY.  NOTHING IN THE MOVIE FALLS WITHIN EITHER
OF THE TWO EXAMPLES GIVEN IN MILLER OF MATERIAL WHICH MAY
CONSTITUTIONALLY BE FOUND TO MEET THE "PATENTLY OFFENSIVE"  ELEMENT OF
THOSE STANDARDS, NOR IS THERE ANYTHING SUFFICIENTLY SIMILAR TO SUCH
MATERIAL TO JUSTIFY SIMILAR TREATMENT.  WHILE THE SUBJECT MATTER OF THE
PICTURE IS, IN A BROADER SENSE, SEX, AND THERE ARE SCENES IN WHICH
SEXUAL CONDUCT INCLUDING "ULTIMATE SEXUAL ACTS" IS TO BE UNDERSTOOD TO
BE TAKING PLACE, THE CAMERA DOES NOT FOCUS ON THE BODIES OF THE ACTORS
AT SUCH TIMES.  THERE IS NO EXHIBITION WHATEVER OF THE ACTORS'
GENITALS, LEWD OR OTHERWISE, DURING THESE SCENES.  THERE ARE OCCASIONAL
SCENES OF NUDITY, BUT NUDITY ALONE IS NOT ENOUGH TO MAKE MATERIAL
LEGALLY OBSCENE UNDER THE MILLER STANDARDS. 

APPELLANT'S SHOWING OF THE FILM "CARNAL KNOWLEDGE" IS SIMPLY NOT THE
"PUBLIC PORTRAYAL OF HARD CORE SEXUAL CONDUCT FOR ITS OWN SAKE, AND FOR
THE ENSUING COMMERCIAL GAIN" WHICH WE SAID WAS PUNISHABLE IN MILLER. 
ID., AT 35.  WE HOLD THAT THE FILM COULD NOT, AS A MATTER OF
CONSTITUTIONAL LAW, BE FOUND TO DEPICT SEXUAL CONDUCT IN A PATENTLY
OFFENSIVE WAY, AND THAT IT IS THEREFORE NOT OUTSIDE THE PROTECTION OF
THE FIRST AND FOURTEENTH AMENDMENTS BECAUSE IT IS OBSCENE.  NO OTHER
BASIS APPEARING IN THE RECORD UPON WHICH THE JUDGMENT OF CONVICTION CAN
BE SUSTAINED, WE REVERSE THE JUDGMENT OF THE SUPREME COURT OF GEORGIA. 

              REVERSED. 

/1/  SECTION 26 - 2101 IS ENTITLED "DISTRIBUTING OBSCENE
MATERIALS."  SUBSECTION (A) OF 26 - 2101 PROVIDES IN RELEVANT PART:  "A
PERSON COMMITS THE OFFENSE OF DISTRIBUTING OBSCENE MATERIALS WHEN HE .
. . EXHIBITS OR OTHERWISE DISSEMINATES TO ANY PERSON ANY OBSCENE
MATERIAL OF ANY DESCRIPTION, KNOWING THE OBSCENE NATURE THEREOF.  . .
."  SUBSECTION (C) OF 26 - 2101 PROVIDES THAT "(MATERIAL), NOT
OTHERWISE OBSCENE, MAY BE OBSCENE UNDER THIS SECTION IF THE
DISTRIBUTION THEREOF . . . IS A COMMERCIAL EXPLOITATION OF EROTICA
SOLELY FOR THE SAKE OF THEIR PRURIENT APPEAL."  SUBSECTION (D) PROVIDES
THAT A FIRST OFFENSE UNDER THE SECTION SHALL BE PUNISHED AS A
MISDEMEANOR AND THAT ANY SUBSEQUENT OFFENSE SHALL BE PUNISHED BY ONE TO
FIVE YEARS' IMPRISONMENT AND/OR A FINE NOT TO EXCEED $5,000. 

/2/  THE ACCUSATION, APP. 8, CHARGED APPELLANT "WITH THE OFFENSE OF
DISTRIBUTING OBSCENE MATERIAL" FOR KNOWINGLY EXHIBITING A MOTION
PICTURE TO THE GENERAL PUBLIC WHICH CONTAINED CONDUCT SHOWING "(A) AN
ACT OF SECUAL INTERCOURSE, (B) A LEWD EXPOSURE OF THE SEXUAL ORGANS,
(C) A LEWD APPEARANCE IN A STATE OF PARTIAL OR COMPLETE NUDITY, (D) A
LEWD CARESS OR INDECENT FONDLING OF ANOTHER PERSON" CONTRARY TO THE
LAWS OF GEORGIA.  THE LATTER-QUOTED LANGUAGE APPEARS IN GA. CODE ANN.
26 - 2011, ENTITLED "PUBLIC INDECENCY," WHICH MAKES PERFORMANCE OF ANY
OF THE LISTED ACTS IN A PUBLIC PLACE A MISDEMEANOR.  UNDER GA. CODE
ANN. 26 - 2105, IT IS A CRIME TO EXHIBIT A MOTION PICTURE PORTRAYING
ACTS WHICH WOULD CONSTITUTE "PUBLIC INDECENCY"  UNDER 26 - 2011 IF
PERFORMED IN A PUBLIC PLACE.  APPELLANT'S ARREST WARRANT SPECIFIED 26 -
2105 AS THE STATUTE HE WAS CHARGED WITH VIOLATING.  IN VIEW OF OUR
HOLDING TODAY, WE NEED NOT REACH APPELLANT'S CONTENTION THAT HE WAS
DENIED DUE PROCESS BECAUSE THE WARRANT SPECIFIED ONLY 26 - 2105, WHILE
THE JURY WAS ALLOWED TO CONVICT UNDER 26 - 2101.  HOWEVER, WE NOTE THAT
APPELLANT'S DEMURRER TO THE ACCUSATION DEMONSTRATES HIS AWARENESS THAT
HE WAS BEING CHARGED WITH THE 26 - 2101 OFFENSE, APP. 9, AND THAT HE
REQUESTED NUMEROUS INSTRUCTIONS ON OBSCENITY, ID., AT 47 - 49.     /3/
APPELLANT'S TRIAL JURY WAS ALTERNATIVELY INSTRUCTED UNDER SUBSECTIONS
(A) AND (C) OF 26 - 2101 (PANDERING), SEE N. 1, SUPRA, AND UNDER 26 -
2105, SEE N. 2, SUPRA. 

/4/  SEE N. 3, SUPRA. 

/5/  APPELLANT TESTIFIED THAT THE FILM WAS "CRITICALLY ACCLAIMED AS
ONE OF THE TEN BEST PICTURES OF 1971 AND ANN MARGARET HAS RECEIVED AN
ACADEMY AWARD NOMINATION FOR HER PERFORMANCE IN THE PICTURE."  HE
FURTHER TESTIFIED THAT "CARNAL KNOWLEDGE"  HAD PLAYED IN 29 TOWNS IN
GEORGIA AND THAT IT WAS BOOKED IN 50 OR 60 MORE THEATERS FOR SPRING AND
SUMMER SHOWING.  APP. 24. 

/6/  REVIEW OF "CARNAL KNOWLEDGE" BY HOLLIS ALPERT, SATURDAY REVIEW,
JULY 3, 1971, P. 18. 

MR. JUSTICE DOUGLAS, BEING OF THE VIEW THAT ANY BAN ON OBSCENITY IS
PROHIBITED BY THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES
THROUGH THE FOURTEENTH, CONCURS IN THE REVERSAL OF THIS CONVICTION. 
SEE PARIS ADULT THEATRE I V. SLATON, 413 U.S. 49, 70 - 73 (1973)
(DOUGLAS, J., DISSENTING). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN THE RESULT. 

ADOPTING A RESTATEMENT OF THE ROTH-MEMOIRS /1/ DEFINITION OF
"OBSCENITY," THE COURT IN MILLER V. CALIFORNIA, 413 U.S. 15 (1973),
HELD THAT OBSCENE MATERIAL COULD BE REGULATED, PROVIDED THAT "(A) . . .
'THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS' WOULD
FIND THAT THE WORK, TAKEN AS A WHOLE, APPEALS TO THE PRURIENT INTEREST
. . .; (B) . . . THE WORK DEPICTS OR DESCRIBES, IN A PATENTLY OFFENSIVE
WAY, SEXUAL CONDUCT SPECIFICALLY DEFINED BY THE APPLICABLE STATE LAW;
AND (C) . . . THE WORK, TAKEN AS A WHOLE, LACKS SERIOUS LITERARY,
ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE."  ID., AT 24.  IT WAS MY VIEW
THEN--AND IT REMAINS SO--THAT THE COURT'S REFORMULATION HARDLY
REPRESENTED A SOLUTION TO WHAT ME. JUSTICE HARLAN CALLED "THE
INTRACTABLE OBSCENITY PROBLEM," INTERSTATE CIRCUIT, INC. V. DALLAS, 390
U.S. 676, 704 (1968) (CONCURRING AND DISSENTING OPINION).  TODAY'S
DECISION CONFIRMS MY OBSERVATION IN PARIS ADULT THEATRE I V. SLATON,
413 U.S. 49 (1973), THAT THE COURT'S NEW FORMULATION DOES NOT EXTRICATE
US FROM THE MIRE OF CASE-BY-CASE DETERMINATIONS OF OBSCENITY.  I THERE
NOTED, IN DISSENT, THAT: 

     "ULTIMATELY, THE REFORMULATION MUST FAIL BECAUSE IT STILL

  LEAVES IN THIS COURT THE RESPONSIBILITY OF DETERMINING IN EACH

  CASE WHETHER THE MATERIALS ARE PROTECTED BY THE FIRST AMENDMENT. 

  THE COURT CONCEDES THAT EVEN UNDER ITS RESTATED FORMULATION, THE

  FIRST AMENDMENT INTERESTS AT STAKE REQUIRE 'APPELLATE COURTS TO

  CONDUCT AN INDEPENDENT REVIEW OF CONSTITUTIONAL CLAIMS WHEN

  NECESSARY,' MILLER V. CALIFORNIA(, 413 U.S. 15, 25), CITING MR.

JUSTICE HARLAN'S OPINION IN ROTH, WHERE HE STATED, 'I DO NOT

  UNDERSTAND HOW THE COURT CAN RESOLVE THE CONSTITUTIONAL PROBLEMS

  NOW BEFORE IT WITHOUT MAKING ITS OWN INDEPENDENT JUDGMENT UPON

  THE CHARACTER OF THE MATERIAL UPON WHICH THESE CONVICTIONS WERE

  BASED.'  354 U.S.,AT 498.  THUS, THE COURT'S NEW FORMULATION WILL

  NOT RELIEVE US OF 'THE AWESOME TASK OF MAKING CASE BY CASE AT

  ONCE THE CRIMINAL AND THE CONSTITUTIONAL LAW.'  AND THE CAREFUL

  EFFORTS OF STATE AND LOWER FEDERAL COURTS TO APPLY THE STANDARD

  WILL REMAIN AN ESSENTIALLY POINTLESS EXERCISE, IN VIEW OF THE

  NEED FOR AN ULTIMATE DECISION BY THIS COURT.  IN ADDITION, SINCE

  THE STATUS OF SEXUALLY ORIENTED MATERIAL WILL NECESSARILY REMAIN

  IN DOUBT UNTIL FINAL DECISION BY THIS COURT, THE NEW APPROACH

  WILL NOT DIMINISH THE CHILL ON PROTECTED EXPRESSION THAT DERIVES

  FROM THE UNCERTAINTY OF THE UNDERLYING STANDARD.  I AM CONVINCED

  THAT A DEFINITION OF OBSCENITY IN TERMS OF PHYSICAL CONDUCT

  CANNOT PROVIDE SUFFICIENT CLARITY TO AFFORD FAIR NOTICE, TO AVOID

  A CHILL ON PROTECTED EXPRESSION, AND TO MINIMIZE THE

  INSTITUTIONAL STRESS, SO LONG AS THAT DEFINITION IS USED TO

  JUSTIFY THE OUTRIGHT SUPPRESSION OF ANY MATERIAL THAT IS ASSERTED

  TO FALL WITHIN ITS TERMS."  413 U.S.,AT 100 - 101.  (FOOTNOTE

  OMITTED.) 

AFTER THE COURT'S DECISION TODAY, THERE CAN BE NO DOUBT THAT MILLER
REQUIRES APPELLATE COURTS--INCLUDING THIS COURT--TO REVIEW
INDEPENDENTLY THE CONSTITUTIONAL FACT OF OBSCENITY.  MOREOVER, THE
COURT'S TASK IS NOT LIMITED TO REVIEWING A JURY FINDING UNDER PART (C)
OF THE MILLER TEST THAT "THE WORK, TAKEN AS A WHOLE, LACKED) SERIOUS
LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE."  413 U.S.,AT 24. 
MILLER ALSO REQUIRES INDEPENDENT REVIEW OF A JURY'S DETERMINATION UNDER
PART (B) OF THE MILLER TEST THAT "THE WORK DEPICTS OR DESCRIBES, IN A
PATENTLY OFFENSIVE WAY, SEXUAL CONDUCT SPECIFICALLY DEFINED BY THE
APPLICABLE STATE LAW."  IBID.  AS THE COURT NOTES, ANTE, AT 160: 

"EVEN THOUGH QUESTIONS OF . . . PATENT OFFENSIVENESS ARE
'ESSENTIALLY QUESTIONS OF FACT,' IT WOULD BE A SERIOUS MISREADING OF
MILLER TO CONCLUDE THAT JURIES HAVE UNBRIDLED DISCRETION IN DETERMINING
WHAT IS 'PATENTLY OFFENSIVE.'  NOT ONLY DID WE THERE SAY THAT 'THE
FIRST AMENDMENT VALUES APPLICABLE TO THE STATES THROUGH THE FOURTEENTH
AMENDMENT ARE ADEQUATELY PROTECTED BY THE ULTIMATE POWER OF APPELLATE
COURTS TO CONDUCT AN INDEPENDENT REVIEW OF CONSTITUTIONAL CLAIMS WHEN
NECESSARY,' 413 U.S.,AT 25, BUT WE MADE IT PLAIN THAT UNDER THAT
HOLDING 'NO ONE WILL BE SUBJECT TO PROSECUTION FOR THE SALE OR EXPOSURE
OF OBSCENE MATERIALS UNLESS THESE MATERIALS DEPICT OR DESCRIBE PATENTLY
OFFENSIVE "HARD CORE" SEXUAL CONDUCT.  . . .'  ID., AT 27." 

IN ORDER TO MAKE THE REVIEW MANDATED BY MILLER, THE COURT WAS
REQUIRED TO SCREEN THE FILM "CARNAL KNOWLEDGE" AND MAKE AN INDEPENDENT
DETERMINATION OF OBSCENITY VEL NON.  FOLLOWING THAT REVIEW, THE COURT
HOLDS THAT "CARNAL KNOWLEDGE"  "COULD NOT, AS A MATTER OF
CONSTITUTIONAL LAW, BE FOUND TO DEPICT SEXUAL CONDUCT IN A PATENTLY
OFFENSIVE WAY, AND THAT IT IS THEREFORE NOT OUTSIDE THE PROTECTION OF
THE FIRST AND FOURTEENTH AMENDMENTS BECAUSE IT IS OBSCENE."  ANTE, AT
161. 

THUS, IT IS CLEAR THAT AS LONG AS THE MILLER TEST REMAINS IN EFFECT
"ONE CANNOT SAY WITH CERTAINTY THAT MATERIAL IS OBSCENE UNTIL AT LEAST
FIVE MEMBERS OF THIS COURT, APPLYING INEVITABLE OBSCENE STANDARDS, HAVE
PRONOUNCED IT SO."  PARIS ADULT THEATRE I V. SLATON, 413 U.S.,AT 92
(BRENNAN, J., DISSENTING).  BECAUSE OF THE ATTENDANT UNCERTAINTY OF
SUCH A PROCESS AND ITS INEVITABLE INSTITUTIONAL STRESS UPON THE
JUDICIARY, I CONTINUE TO ADHERE TO MY VIEW THAT, "AT LEAST IN THE
ABSENCE OF DISTRIBUTION TO JUVENILES OR OBTRUSIVE EXPOSURE TO
UNCONSENTING ADULTS, THE FIRST AND FOURTEENTH AMENDMENTS PROHIBIT THE
STATE AND FEDERAL GOVERNMENTS FROM ATTEMPTING WHOLLY TO SUPPRESS
SEXUALLY ORIENTED MATERIALS ON THE BASIS OF THEIR ALLEGEDLY 'OBSCENE'
CONTENTS."  ID., AT 113.  IT IS CLEAR THAT, TESTED BY THAT
CONSTITUTIONAL STANDARD, THE GEORGIA OBSCENITY STATUTES UNDER WHICH
APPELLANT JENKINS WAS CONVICTED ARE CONSTITUTIONALLY OVERBROAD AND
THEREFORE FACIALLY INVALID.  I THEREFORE CONCUR IN THE COURT'S JUDGMENT
REVERSING JENKINS'  CONVICTION. 

/1/  SEE ROTH V. UNITED STATES, 354 U.S. 476 (1957), AND MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413 (1966). 

LOUIS NIZER ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEFS
WERE TENCH C. COXE, WILLIAM H. SCHRODER, JR., AND JAMES BOURAS. 

TONY H. HIGHT ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY PETER M.
FISHBEIN AND LESTER POLLACK FOR THE NATIONAL ASSOCIATION OF THEATRE
OWNERS; BY STANLEY FLEISHMAN AND SAM ROSENWEIN FOR THE ADULT FILM
ASSOCIATION OF AMERICA, INC.; BY EPHRAIM LONDON FOR THE DIRECTORS GUILD
OF AMERICA, INC.; BY WILLIAM D. NORTH FOR THE AMERICAN LIBRARY ASSN.;
BY MAXWELL J. LILLIENSTEIN FOR THE AMERICAN BOOKSELLERS ASSN., INC., ET
AL.; BY MICHAEL A. BAMBERGER FOR THE COUNCIL FOR PERIODICAL
DISTRIBUTORS ASSNS., INC., ET AL.; BY IRA M. MILLSTEIN FOR THE
ASSOCIATION OF AMERICAN PUBLISHERS, INC.; AND BY IRWIN KARP FOR THE
AUTHORS LEAGUE OF AMERICA, INC. 

CHARLES H. KEATING, JR., PRO SE, RICHARD M. BERTSCH, JAMES J.
CLANCY, AND ALBERT S. JOHNSTON III FILED A BRIEF FOR CHARLES H.
KEATING, JR., AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :














UNITED STATES V. AMERICAN BLDG. MAINT. INDUSTRIES, 422 US 271 


       UNITED STATES V. AMERICAN BUILDING MAINTENANCE INDUSTRIES

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

           DISTRICT OF CALIFORNIA

    NO. 73 - 1689.  ARGUED APRIL 22, 1975--DECIDED JUNE 24,

           1974;--F.SUPP.--, AFFIRMED. 


THE GOVERNMENT BROUGHT THIS CIVIL ANTITRUST ACTION AGAINST APPELLEE,
ONE OF THE LARGEST SUPPLIERS OF JANITORIAL SERVICES IN THE COUNTRY,
WITH 56 BRANCHES SERVING MORE THAN 500 COMMUNITIES IN THE UNITED STATES
AND CANADA, AND PROVIDING ABOUT 10% OF SUCH SERVICE SALES IN SOUTHERN
CALIFORNIA, CONTENDING THAT APPELLEE'S ACQUISITION OF TWO SOUTHERN
CALIFORNIA JANITORIAL SERVICE FIRMS (THE BENTON COMPANIES), WHICH
SUPPLIED ABOUT 7% OF SUCH SERVICES IN SOUTHERN CALIFORNIA, VIOLATED
SEC. 7 OF THE CLAYTON ACT.  THAT SECTION PROVIDES THAT "(NO CORPORATION
ENGAGED IN COMMERCE SHALL ACQUIRE . . . THE STOCK OR OTHER SHARE
CAPITAL AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL
TRADE COMMISSION SHALL ACQUIRE . . . THE ASSETS OF ANOTHER CORPORATION
ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN ANY SECTION
OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLU."  THE BENTON
COMPANIES, SOME OF WHOSE CUSTOMERS ENGAGED IN INTERSTATE OPERATIONS,
PERFORMED ALL THEIR SERVICES WITHIN CALIFRNIA, LOCALLY RECRUITED LABOR
(WHICH ACCOUNTED FOR THEIR MAJOR EXPENSES) AND LOCALLY PURCHASED
INCIDENTAL EQUIPMENT AND SUPPLIES.  THE DISTRICT COURT GRANTED
APPELLEE'S MOTION FOR SUMMARY JUDGMENT, HOLDING THAT THERE HAD BEEN NO
SEC. 7 VIOLATION.  THE GOVERNMENT CONTENDS THAT "ENGAGED IN COMMERCE"
AS USED IN SEC. 7 ENCOMPASSES CORPORATIONS LIKE THE BENTON COMPANIES
ENGAGED IN INTRASTATE ACTIVITIES THAT SUBSTANTIALLY AFFECT INTERSTATE
COMMERCE, AND THAT IN ANY EVENT THE BENTON COMPANIES'  ACTIVITIES WERE
SUFFICIENTLY INTERSTATE TO COME WITHIN SEC. 7.  HELD: 

1. THE PHRASE "ENGAGED IN COMMERCE" AS USED IN SEC. 7 OF THE CLAYTON
ACT MEANS ENGAGED IN THE FLOW OF INTERSTATE COMMERCE, AND WAS NOT
INTENDED TO REACH ALL CORPORATIONS ENGAGED IN ACTIVITIES SUBJECT TO THE
FEDERAL COMMERCE POWER; HENCE, THE PHRASE DOES NOT ENCOMPASS
CORPORATIONS ENGAGED IN INTRASTATE ACTIVITIES SUBSTANTIALLY AFFECTING
INTERSTATE COMMERCE, AND SEC. 7 CAN BE APPLICABLE ONLY WHEN BOTH THE
ACQURING CORPORATION AND THE ACQUIRED CORPORATION ARE ENGAGED IN
INTERSTATE COMMERCE.  PP. 275 - 283. 

(A) THE JURISDICTIONAL REQUIREMENTS OF SEC. 7 CANNOT BE SATISFIED
MERELY BY SHOWING THAT ALLEGEDLY ANTICOMPETITVE ACQUISTIONS AND
ACTIVITIES AFFECT COMMERCE.  GULF OIL CORP. V. COPP PAVING CO., 419
U.S. 186; FTC V. BUNTE BROS., 312 U.S. 349.  PP. 276 - 277. 

(B) THE PRECISE "IN COMMERCE" LANGUAGE OF SEC. 7 IS NOT COEXTENSIVE
WITH THE REACH OF POWER UNDER THE COMMERCE CLAUSE AND IS THUS NOT TO BE
EQUATED WITH SEC. 1 OF THE SHERMAN ACT WHICH REACHES THE IMPACT OF
INTRASTATE CONDUCT ON INTERSTATE COMMERCE.  PP. 277 - 279. 

(C) WHEN CONGRESS RE-ENACTED SEC. 7 IN 1950 WITH THE SAME "ENGAGED
IN COMMERCE" LIMITATION, THE PHRASE HAD LING SINCE BECOME A TERM OF
ART, INDICATING LIMITED ASSERTION OF FEDERAL JURISDICTION, AND PRIOR TO
THAT TIME CONGRESS HAD FREQUENTLY DISTINGUISHED BETWEEN ACTIVITIES "IN
COMMERCE" AND BROADER ACTIVITIES "AFFECTING COMMERCE."  PP. 279 - 28. 

(D) LIMITING SEC. 7 TO ITS PLAIN MEANING COMPORTS WITH THE
ENFORCEMENT POLICIES THAT THE FTC AND THE JUSTICE DEPARTMENT HAVE
CONSISTENTLY PURSUED.  PP. 281 - 282. 

2. SINCE THE BENTON COMPANIES DID NOT PARTICIPATE DIRECTLY IN THE
SALE, PURCHASE, OR DISTRIBUTION OF GOODS OR SERVICES IN INTERSTATE
COMMERCE, THEY WERE NOT "ENGAGED IN COMMERCE" WITHIN THE MEANING OF
SEC. 7.  AND NEITHER SUPPLYING LOCAL SERVICES TO CORPORATIONS ENGAGED
IN INTERSTATE COMMERCE NOR USING LOCALLY BOUGHT SUPPLIES MANUFACTURED
OUTSIDE CALIFORNIA SUFFICED TO SATISFY SEC. 7'S "IN COMMERCE"
REQUIREMENT.  PP. 283 - 286. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BERGER,
C.J., AND MARSHALL, POWELL, AND REHNQUIST, JJ., JOINED, AND IN ALL BUT
PART III OF WHICH WHITE, J., JOINED.  WHITE, J., FILED A CONCURRING
OPINION, POST, P. 286.  DOUGLAS, J., FILED A DISENTING OPINION, IN
WHICH BRENNAN, J., JOINED, POST, P. 286.  BLACKMUN, J., FILED A
DISSENTING OPINION, POST, P. 287. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE GOVERNMENT COMMENCED THIS CIVIL ANTITRUST ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA,
CONTENDING THAT THE APPELLEE, AMERICAN BUILDING MAINTENANCE INDUSTRIES,
HAD VIOLATED SEC. 7 OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15
U.S.C. SEC. 18, BY ACQUIRING THE STOCK OF J.E. BENTON MANAGEMENT CORP.,
AND BY MERGING BENTON MAINTENANCE CO. INTO ONE OF THE APPELLEE'S WHOLLY
OWNED SUBSIDIARIES.  FOLLOWING DISCOVERY PROCEEDINGS AND THE SUBMISSION
OF MEMORANDA AND AFFIDAVITS BY BOTH PARTIES, THE DISTRICT COURT GRANTED
THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT, HOLDING THAT THERE HAD NO
VIOLATION OF SEC 7 OF THE CLAYTON ACT.  THE GOVERNMENT BROUGHT AN
APPEAL TO THIS COURT, AND WE NOTED PROBABLE JURISDICTION.  419 U.S.
1104.  /1/

        I 

THE APPELLEE, AMERICAN BUILDING MAINTENANCE INDUSTRIES, IS ONE OF
THE LARGEST SUPPLIERS OF JANITORIAL SERVICES IN THE COUNTRY, WITH 56
BRANCHES SERVING MORE THAN 500 COMMUNITIES IN THE UNITED STATES AND
CANADA.  IT IS ALSO THE SINGLE LARGEST SUPPLIER OF JANITORIAL SERVICES
IN SOUTHERN CALIFORNIA (THE AREA COMPRISING LOS ANGELES, ORANGE, SAN
BERNARDINO, RIVERSIDE, SANTA BARBARA, AND VENTURA COUNTIES), PROVIDING
APPROXIMATELY 10% OF THE SALES OF SUCH SERVICES IN THAT AREA. 

BOTH OF THE ACQUIRED COMPANIES, J.E. BENTON MANAGEMENT CORP. AND
BENTON MAINTENANCE CO., ALSO SUPPLIED JANITORIAL SERVICES IN SOUTHERN
CALIFORNIA.  /2/ TOGETHER THEIR SALES CONSTITUTED APPROXIMATELY 7% OF
THE TOTAL JANITORIAL SALES IN THAT AREA.  ALTHOUGH BOTH BENTON
COMPANIES SERVICED CUSTOMERS ENGAGED IN INTERSTATE OPERATIONS, ALL OF
THEIR JANITORIAL AND MAINTENANCE CONTRACTS WITH THOSE CUSTOMERS WERE
PERFORMED ENTIRELY WITHIN CALIFORNIA.  NEITHER OF THE BENTON COMPANIES
ADVERTISED NATIONALLY, AND THEIR USE OF INTERSTATE COMMUNICATIONS
FACILITIES TO CONDUCT BUSINESS WAS NEGLIGIBLE.  /3/ 

THE MAJOR EXPENSE OF PROVIDING JANITORIAL SERVICES IS THE COST OF
THE LABOR NECESSARY TO PERFORM THE WORK.  THE BENTON COMPANIES
RECRUITED THE UNSKILLED WORKERS NEEDED TO SUPPLY JANITORIAL SERVICES
ENTIRELY FROM THE LOCAL LABOR MARKET IN SOUTHERN CALIFORNIA.  THE
INCIDENTAL EQUIPMENT AND SUPPLIES UTILIZED IN PROVIDING THOSE
JANITORIAL SERVICES, EXCEPT IN CONCEDEDLY INSIGNIFICANT AMOUNTS, WERE
PURCHASED FROM LOCAL DISTRIBUTORS.  /4/ 

IT IS UNQUESTIONED THAT THE APPELLEE, AMERICAN BUILDING MAINTENANCE
INDUSTRIES, WAS AND IS ACTIVELY ENGAGED IN INTERSTATE COMMERCE.  BUT NO
THE BASIS OF THE ABOVE FACTS THE DISTRICT COURT CONCLUDED THAT AT THE
TIME OF THE CHALLENGED ACQUISITION AND MERGER NEITHER BENTON MANAGEMENT
CORP. NOR BENTON MAINTENANCE CO. WAS "ENGAGED IN COMMERCE" WITHIN THE
MEANING OF SEC. 7 OF THE CLAYTON ACT.  ACCORDINGLY, THE DISTRICT COURT
HELD THAT THERE HAD BEEN NO VIOLATION OF THAT LAW. 

THE GOVERNMENT'S APPEAL RAISES TWO QUESTIONS:  FIRST, DOES THE
PHRASE "ENGAGED IN COMMERCE" AS USED IN SEC. 7 OF THE CLAYTON ACT
ENCOMPASS CORPORATIONS ENGAGED IN INTRASTATE ACTIVITIES THAT
SUBSTANTIALLY AFFECT INTERSTATE COMMERCE?  SECOND, IF THE LANGUAGE OF
SEC. 7 REQUIRES PROOF OF ACTUAL ENGAGEMENT IN THE FLOW OF INTERSTATE
COMMERCE, WERE THE BENTON COMPANIES' ACTIVITIES SUFFICIENT TO SATISFY
THAT STANDARD? 

        II 

PERTINENT PART: 

     " NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY
OR

  INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE

  CAPITAL AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE

FEDERAL TRADE COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF

  THE ASSETS OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE

  IN ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT

  OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION,

  OR TO TEND TO CREATE A MONOPOLY." 

UNDER THE EXPLICIT REACH OF SEC. 7, THEREFORE, NOT ONLY MUST THE
ACQUIRING CORPORATION BE "ENGAGED IN COMMERCE," BUT THE CORPORATION OR
CORPORATIONS WHOSE STOCK OR ASSETS ARE ACQUIRED MUST BE "ENGAGED ALSO
IN COMMERCE.  /5/ 

THE DISTINCT "IN COMMERCE" LANGUAGE OF SEC. 7, THE COURT OBSERVED
EARLIER THIS TERM, "APPEARS TO DENOTE ONLY PERSONS OR ACTIVITIES WITHIN
THE FLOW OF INTERSTATE COMMERCE--THE PRACTICAL, ECONOMIC CONTINUITY IN
THE GENERATION OF GOODS AND SERVICES FOR INTERSTATE MARKETS AND THEIR
TRANSPORT AND DISTRINBUTION TO THE CONSUMER.  IF THIS IS SO, THE
JURISDICTIONAL REQUIREMENTS OF (SEC. 7) CANNOT BE SATISFIED MERELY BY
SHOWING THAT ALLEGEDLY ANTICOMPETITIVE ACQUISITIONS AND ACTIVITIES
AFFECT COMMERCE."  GULF OIL CORP. V. COPP PAVING CO., 419 U.S. 186,
195.  BUT EVEN MORE UNAMBIGUOUS SUPPORT FOR THIS CONSTRUCTION OF THE
NARROW "IN COMMERCE" LANGUAGE ENACTED BY CONGRESS IN SEC. 7 OF THE
CLAYTON ACT IS TO BE FOUND IN AN EARLIER DECISION OF THIS COURT, FTC V.
BUNTE BROS., 312 U.S. 349. 

IN BUNTE BROS. THE COURT WAS REQUIRED TO DETERMINE THE SCOPE OF SEC.
5 OF THE FEDERAL TRADE COMMISSION ACT, 38 STAT. 719, AS AMENDED, 15
U.S.C. SEC. 45, WHICH AUTHORIZED THE COMMISSION TO PROCEED ONLY AGAINST
"UNFAIR METHODS OF COMPETITION IN COMMERCE."  THE COURT SQUARELY HELD
THAT THE COMMISSION'S SEC. 5 JURISDICTION WAS LIMITED TO UNFAIR METHODS
OF COMPETITION OCCURRING IN THE FLOW OF INTERSTATE COMMERCE.  THE
CONTENTION THAT "IN COMMERCE" SHOULD BE READ AS IF IT MEANT "AFFECTING
INTERSTATE COMMERCE" WAS EMPHATICALLY REJECTED:  " THE CONSTRUCTION OF
SEC. 5 URGED BY THE COMMISSION WOULD THUS GIVE A FEDERAL AGENCY
PERVASIVE CONTROL OVER MYRIADS OF LOCAL BUSINESSES IN MATTERS
HERETOFORE TRADITIONALLY LEFT TO LOCAL CUSTOM OR LOCAL LAW.  . . . AN
INROD UPON LOCAL CONDITIONS AND LOCAL STANDARDS OF SUCH FAR-REACHING
IMPORT AS IS INVOLVED HERE, OUGHT TO AWAIT A CLEARER MANDATE FROM
CONGRESS."  312 U.S., AT 354 - 355.  /6/ 

THE PHRASE "IN COMMERCE" DOES NOT, OF COURSE, NECESSARILY HAVE A
UNIFORM MEANING WHENEVER USED BY CONGRESS.  SEE, E. G., KIRSCHBAUM CO.
V. WALLING, 316 U.S. 517, 520 - 521.  BUT THE BUNTE BROS. CONSTRUCTION
OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT IS PARTICULARLY RELEVANT
TO A PROPER INTERPRETATION OF THE "IN COMMERCE"  LANGUAGE IN SEC. 7 OF
THE CLAYTON ACT SINCE BOTH SECTIONS WERE ENACTED BY THE 63RD CONGRESS,
AND BOTH WERE DESIGNED TO DEAL WITH CLOSELY RELATED ASPECTS OF THE SAME
PROBLEM--THE PROTECTION OF FREE AND FAIR COMPETITION IN THE NATION'S
MARDETPLACES.  SEE FTC V. RALADAM CO., 283 U.S. 643, 647 - 648. 

THE GOVERNMENT ARGUES, HOWEVER, THAT DESPITE ITS BASIC IDENTITY TO
SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, THE PHRASE "ENGAGED IN
COMMERCE" IN SEC. 7 OF THE CLAYTON ACT SHOULD BE INTERPRETED TO MEAN
ENGAGED IN ANY ACTIVITY THAT IS SUBJECT TO THE CONSTITUTIONAL POWER OF
CONGRESS OVER INTERSTATE COMMERCE.  THE LEGISLATIVE HISTORY OF THE
CLAYTON ACT, THE GOVERNMENT CONTENDS, DEMONSTRATES THAT THE "IN
COMMERCE" LANGUAGE OF SEC. 7 WAS INTENDED TO BE COEXTENSIVE WITH THE
REACH OF CONGRESSIONAL POWER UNDER THE COMMERCE CLAUSE.  MOREOVER, THE
ARGUMENT CONTINUES, SEC. 7 WAS DESIGNED TO SUPPLEMENT THE SHERMAN ACT
AND TO ARREST THE CREATION OF TRUSTS OR MONOPOLIES IN THEIR INCIPIENCY,
UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, 589, AND
IT WOULD BE ANOMALOUS, IN LIGHT OF THIS HISTORY AND PURPOSE, TO HOLD
THAT THE CLAYTON ACT'S JURISDICTIONAL SCOPE IS MORE RESTRICTED THAN
THAT OF THE SHERMAN ACT. 

IT IS CERTAINLY TRUE THAT THE COURT HAS HELD THAT IN THE SHERMAN
ACT.  " CONGRESS WANTED TO GO TO THE UTMOST EXTENT OF ITS
CONSTITUTIONAL POWER IN RESTRAINING TRUST AND MONOPOLY AGREEMENTS . . .
."  UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533,
558.  ACCORDINGLY, THE SHERMAN ACT HAS BEEN APPLIED TO LOCAL ACTIVITIES
WHICH, ALTHOUGH NOT THEMSELVES WITHIN THE FLOW OF INTERSTATE COMMERCE,
SUBSTANTIALLY AFFECT INTERSTATE COMMERCE.  SEE, E.G., MANDEVILLE ISLAND
FARMS, INC. V. AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219; UNITED STATES
V. EMPLOYING PLASTERERS ASSN., 347 U.S. 186.  BUT THE GOVERNMENT'S
ARGUMENT THAT SEC. 7 SHOULD LIKEWISE BE READ TO REACH INTRASTATE
CORPORATIONS AFFECTING INTERSTATE COMMERCE IS NOT PERSUASIVE. 

UNLIKE SEC. 7, WITH ITS PRECISE "IN COMMERCE" LANGUAGE, SEC. 1 OF
THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. SEC. 1, PROHIBITS
EVERY CONTRACT, COMBINATION, OR CONSPIRACY "IN RESTRAINT OF TRADE OR
COMMERCE AMONG THE SEVERAL STATES . . . ."  " THE JURISDICTIONAL REACH
OF SEC. 1 THUS IS KEYED DIRECTLY TO EFFECTS ON INTERSTATE MARKETS AND
THE INTERSTATE FLOW OF GOODS."  GULF OIL CORP. V. COPP PAVING CO., 419
U.S., AT 194.  NO SIMILAR CONCERN FOR THE IMPACT OF INTRASTATE CONDUCT
ON INTERSTATE COMMERCE IS EVIDENT IN SEC. 7'S "ENGAGED IN COMMERCE"
REQUIREMENTS. 

THE GOVERNMENT'S CONTENTION THAT IT WOULD BE ANOMALOUS FOR CONGRESS
TO HAVE STRENGTHENED THE ANTITRUST LAWS BY CURING PERCEIVED
DEFICIENCIES IN THE SHERMAN ACT AND AT THE SAME TIME TO HAVE LIMITED
THE JURISDICTIOHAL SCOPE OF THOSE REMEDIAL PROVISIONS FOUNDERS ALSO ON
THE EXPRESS LANGUAGE OF SEC. 7.  THUS, ALTHOUGH THE SHERMAN ACT
PROSCRIBES EVERY CONTRACT, COMBINATION, OR CONSPIRACY IN RESTRAINT OF
TRADE OR COMMERCE, WHETHER ENTERED INTO BY A NATURAL PERSON,
PARTNERSHIP, CORPORATION, OR OTHER FORM OF BUSINESS ORGANIZATION, SEC.
7 OF THE CLAYTON ACT IS EXPLICITY LIMITED TO CORPORATE ACQUISITIONS. 
YET IT SURELY COULD NOT BE SERIOUSLY ARGUED THAT THIS "ANOMALY" MUST BE
IGNORED, AND SEC. 7 EXTENDED TO REACH AN ALLEGEDLY ANTICOMPETITIVE
ACQUISITION OF PARTNERSHIP ASSETS.  /7/ THERE IS NO MORE JUSTIFICATION
FOR CONCLUDING THAT THE EQUALLY EXPLICIT "IN CONNERCE" LIMITATION ON
SEC. 7'S REACH SHOULD BE DISREGARDED. 

MORE IMPORTANTLY, WHETHER OR NOT CONGRESS IN ENACTING THE CLAYTON
ACT IN 1914 INTENDED TO EXERCISE FULLY ITS POWER TO REGULATE COMMERCE,
AND WHATEVER THE UNDERSTANDING OF THE 63D CONGRESS MAY HAVE BEEN AS TO
THE EXTENT OF ITS COMMERCE CLAUSE POWER, THE FACT IS THAT WHEN SEC. 7
WAS RE-ENACTED IN 1950, THE PHRASE "ENGAGED IN COMMERCE" HAD LONG SINCE
BECOME A TERM OF ART, INDICATING A LIMITED ASSERTION OF FEDERAL
JURISDICTION.  IN SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495, FOR
EXAMPLE, THE COURT HAD DRAWN A SHARP DISTINCTION BETWEEN ACTIVITIES IN
THE FLOW OF INTERSTATE COMMERCE AND INTRASTATE ACTIVITIES THAT AFFECT
INTERSTATE COMMERCE.  ID., AT 542 - 544.  SIMILARLY, THE COURT'S
OPINION IN NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, TWO YEARS
LATER, HAD EMPHASIZED THAT CONGRESSIONAL AUTHORITY TO REGULATE
COMMERCE," BUT EXTENDED AS WELL TO CONDUCT THAT SUBSTANTIALLY AFFECTED
INTERSTATE COMMERCE.  AND THE BUNTE BROS. DECISION IN 1941 HAD STRESSED
THE DISTINCTION BETWEEN UNFAIR METHODS OF COMPETITION "IN COMMERCE" AND
THOSE THAT "AFFECTED COMMERCE," IN LIMITING THE SCOPE OF THE
COMMISSION'S AUTHORITY UNDER THE "IN COMMERCE" LANGUAGE OF SEC. 5 OF
THE FEDERAL TRADE COMMISSION ACT. 

CONGRESS, AS WELL, IN THE YEARS PRIOR TO 1950 HAD REPEATEDLY
ACKNOWLEDGED ITS RECOGNITION OF THE DISTINCTION BETWEEN LEGISLATION
LIMITED TO ACTIVITIES "IN COMMERCE," AND AN ASSERTION OF ITS FULL
COMMERCE CLAUSE POWER SO AS TO COVER ALL ACTIVITY SUBSTANTIALLY
AFFECTING INTERSTATE COMMERCE.  SECTION 10 (A) OF THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 453, AS AMENDED, 29 U.S.C. SEC. 160 (A), FOR
EXAMPLE, EMPOWERED THE NATIONAL LABOR RELATIONS BOARD TO PREVENT ANY
PERSON FROM ENGAGING IN AN UNFAIR LABOR PRACTICE "AFFECTING COMMERCE." 
(7), IN TURN, DEFINED "AFFECTING COMMERCE" TO MEAN "IN COMMERCE, OR
BURDENING OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE . . .
."  SIMILARLY, THE BITUMINOUS COAL ACT OF 1937, C. 127, 50 STAT. 72,
PROVIDING FOR THE FIXING OF PRICES FOR BITUMINOUS COAL, THE
PROSCRIPTION OF UNFAIR TRADE PRACTICES, AND THE ESTABLISHMENT OF
MARKETING PROCEDURES, APPLIED TO SALES AND TRANSACTIONS "IN OR DIRECTLY
AFFECTING INTERSTATE COMMERCE IN BITUMINOUS COAL."  50 STAT. 76. 

IN MARKED CONTRAST TO THE BROAD "AFFECTING COMMERCE" JURISDICTIONAL
LANGUAGE UTILIZED IN THOSE STATUTES, HOWEVER, CONGRESS RETAINED THE
NARROWER "IN COMMERCE" FOR MULATION WHEN IT AMENDED AND RE-ENACTED SEC.
7 OF THE CLAYTON ACT IN 1950.  THE 1950 AMENDMENTS WERE DESIGNED IN
LARGE PART TO "PLUG THE LOOPHOLE" THAT EXISTED IN SEC. 7 AS INITIALLY
ENACTED IN 1914, BY EXPANDING ITS COVERAGE TO INCLUDE ACQUISITIONS OF
ASSETS, AS WELL AS ACQUISITIONS OF STOCK.  IN ADDITION, OTHER LANGUAGE
IN SEC. 7 WAS AMENDED TO MAKE PLAIN THE FULL REACH OF THE SECTION'S
PROHIBITIONS.  SEE BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 311 -
323.  YET, DESPITE THE SWEEPING CHANGES MADE TO EFFECTUATE THOSE
PURPOSES, AND DESPITE DECISIONS OF THIS COURT, SUCH AS BUNTE BROS.,
THAT HAD LIMITED THE REACH OF THE PHRASE "IN COMMERCE" IN SIMILAR
REGULATORY LEGISLATION, CONGRESS PRESERVED THE REQUIREMENT THAT BOTH
THE ACQUIRING AND THE ACQUIRED COMPANIES BE "ENGAGED IN COMMERCE." 

THIS CONGRESSIONAL ACTION CANNOT BE DISREGARDED, AS THE GOVERNMENT
WOULD HAVE IT, AS SIMPLY A RESULT OF CONGRESSIONAL INATTENTION, FOR
CONGRESS WAS FULLY AWARE IN ENACTING THE 1950 AMENDMENTS THAT BOTH THE
ORIGINAL AND THE NEWLY AMENDED VERSIONS OF SEC. 7 WERE LIMITED TO
CORPORATIONS "ENGAGED IN COMMERCE."  SEE, E. G., H.R.REP.  NO. 1191,
81ST CONG., 1ST SESS., 5 - 6.  RATHER, THE DECISION TO RE-ENACT SEC. 7
WITH THE SAME "IN COMMERCE" LIMITATION CAN BE RATIONALLY EXPLAINED ONLY
IN TERMS OF A LEGISLATIVE INTENT, AT LEAST IN 1950, NOT TO APPLY THE
RATHER DRASTIC PROHIBITIONS OF SEC. 7 OF THE CLAYTON ACT TO THE FULL
RANGE OF CORPORATIONS POTENTIALLY SUBJECT TO THE COMMERCE POWER. 
FINALLY, THE GOVERNMENT'S CONTENTION THAT A LIMITATION OF THE SCOPE OF
SEC. 7 TO ITS PLAIN MEANING WOULD UNDERMINE THE SECTION'S REMEDIAL
PURPOSE IS BELIED BY THE PAST ENFORCEMENT POLICY OF THE FEDERAL TRADE
COMMISSION AND THE DEPARTMENT OF JUSTICE--THE TWO GOVERNMENTAL AGENCIES
CHARGED WITH ENFORCING THE SECTION'S PROHIBITIONS.  CLAYTON ACT SEC.
11, 15, 15 U.S.C. SEC. 21 (A), 25.  THE FEDERAL TRADE COMMISSION HAS
REPEATEDLY HELD THAT SEC. 7 APPLIES ONLY TO AN ACQUISITION IN WHICH
BOTH THE ACQUIRED AND THE ACQUIRING COMPANIES ARE ENGAGED DIRECTLY IN
INTERSTATE COMMERCE.  E. G., FOREMOST DAIRIES, INC., 60 F.T.C. 944,
1068 - 1069; BEATRICE FOODS CO., 67 F.T.C. 473, 730 - 731; MISSISSIPPI
RIVER FUEL CORP., 75 F.T.C. 813, 918.  AND WHILE THE GOVERNMENT
EXPLAINS THAT IT HAS NEVER TAKEN A FORMAL POSITION THAT SEC. 7 DOES NOT
APPLY TO INTRASTATE FIRMS AFFECTING INTERSTATE COMMERCE, IT DOES
CONCEDE THAT PREVIOUS SEC. 7 CASES BROUGHT BY THE DEPARTMENT OF JUSTICE
HAVE INVARIABLY INVOLVED FIRMA CLEARLY ENGAGED IN THE FLOW OF
INTERSTATE COMMERCE.  /8/ IN LIGHT OF THIS CONSISTENT ENFORCEMENT
PRACTICE, IT IS DIFFICULT TO CREDIT THE ARGUMENT THAT SEC. 7'S REMEDIAL
PURPOSE WOULD BE FRUSTRATED BY CONSTRUING LITERALLY SEC. 7'S TWICE
ENACTED "IN COMMERCE" REQUIREMENT. 

IN SUM, NEITHER THE LEGISLATIVE HISTORY NOR THE REMEDIAL PURPOSE OF
SEC. 7 OF THE CALYTON ACT, AS AMENDED AND RE-ENACTED IN 1950, SUPPORTS
AN EXPANSION OF THE SCOPE OF SEC. 7 BEYOND THAT DEFINED BY ITS EXPRESS
LANGUAGE.  ACCORDINGLY, WE HOLD THAT THE PHRASE "ENGAGED IN COMMERCE"
AS USED IN SEC. 7 OF THE CLAYTON ACT MEANS ENGAGED IN THE FLOW OF
INTERSTATE COMMERCE, AND WAS NOT INTENDED TO REACH ALL CORPORATIONS
ENGAGED IN ACTIVITIES SUBJECT TO THE FEDERAL COMMERCE POWER. 

 III 

THE GOVERNMENT ALTERNATIVELY ARGUES THAT EVEN IF SEC. 7 APPLIES ONLY
TO CORPORATIONS ENGAGED IN THE FLOW OF INTERSTATE COMMERCE, THE BENTON
COMPANIES' ACTIVITIES AT THE TIME OF THE ACQUISITION AND MERGER PLACED
THEM IN THAT FLOW.  TO SUPPORT THIS CONTENTION THE GOVERNMENT RELIES
PRIMARILY ON THE FACT THAT THE BENTON COMPANIES PERFORMED A SUBSTANTIAL
PORTION OF THEIR JANITORIAL SERVICES FOR ENTERPRISES WHICH WERE
THEMSELVES CLEARLY ENGAGED IN SELLING PRODUCTS IN INTERSTATE AND
INTERNATIONAL MARKETS AND IN PROVIDING INTERSTATE COMMUNICATION
FACILITIES.  /9/ BUT SIMPLY SUPPLYING LOCALIZED SERVICES TO A
CORPORATION ENGAGED IN INTERSTATE COMMERCE DOES NOT SATISFY THE "IN
COMMERCE" REQUIREMENT OF SEC. 7. 

TO BE ENGAGED "IN COMMERCE" WITHIN THE MEANING OF SEC. 7, A
CORPORATION MUST ITSELF BE DERECTLY ENGAGED IN THE PRODUCTION,
DISTRIBUTION, OR ACQUISITION OF GOODS OR SERVICES IN INTERSTATE
COMMERCE.  SEE GULF OIL CORP. V. COPP PAVING CO., 419 U.S., AT 195.  AT
THE TIME OF THE ACQUISITION AND MERGER, HOWEVER, THE BENTON COMPANIES
WERE COMPLETELY INSULATED FROM ANY DIRECT PARTICIPATION IN INTERSTATE
MARKETS OR THE INTERSTATE FLOW OF GOODS OR SERVICES.  THE FIRMS'
ACTIVITIES WERE LIMITED TO PROVIDING JANITORIAL SERVICES WITHIN
SOUTHERN CALIFORNIA TO CORPORATIONS THAT MADE WHOLLY INDEPENDENT
PRICING DECISIONS CONCERNING THEIR OWN PRODUCTS.  CONSEQUENTLY, WHETHER
OR NOT THEIR EFFECT ON INTERSTATE COMMERCE WAS SUFFICIENTLY SUBSTANTIAL
TO COME WITHIN THE AMBIT OF THE CONSTITUTIONAL POWER OF CONGRESS UNDER
THE COMMERCE CLAUSE, IN PROVIDING JANITORIAL SERVICES THE BENTON
COMPANIES WERE NOT THEMSELVES "ENGAGED IN COMMERCE" WITHIN THE MEANING
OF SEC. 7.  CF. MANDEVILLE ISLAND FARMS, INC. V. AMERICAN CRYSTAL SUGAR
CO., 334 U.S., AT 227 - 235.  /10/ 

SIMILARLY, ALTHOUGH THE BENTON COMPANIES USED JANITORIAL EQUIPMENT
AND SUPPLIES MANUFACTURED IN LARGE PART OUTSIDE OF CALIFORNIA, THEY DID
NOT PURCHASE THEM DIRECTLY FROM SUPPLIERS LOCATED IN OTHER STATES.  CF.
FOREMOST DAIRIES, INC., F.T.C., AT 1068 - 1069.  RATHER, THOSE PRODUCTS
WERE PURCHASED IN INTERASTATE TRANSACTIONS FROM LOCAL DISTRIBUTORS. 
ONCE AGAIN, THEREFORE, THE BENTON COMPANIES WERE SEPARATED FROM DIRECT
PARTICIPATION IN INTERSTATE COMMERCE BY THE PRICING AND OTHER MARKETING
DECISIONS OF INDEPENDENT INTERMEDIARIES.  BY THE TIME THE BENTON
COMPANIES PURCHASED THEIR JANITORIAL SUPPLIES, THE FLOW OF COMMERCE HAD
CEASED.  SEE SCHECHTER CORP. V. UNITED STATES, 295 U.S., AT 542 - 543. 
/11/ 

IN SHORT, SINCE THE BENTON COMPANIES DID NOT PARTICIPATE DIRECTLY IN
THE SALE, PURCHASE, OR DISTRIBUTION OF GOODS OR SERVICES IN INTERSTATE
COMMERCE, THEY WERE NOT "ENGAGED IN COMMERCE" WITHIN THE MEANING OF
SEC. 7 OF THE CLAYTON ACT.  /12/ THE DISTRICT COURT, THEREFORE,
PROPERLY CONCLUDED THAT THE ACQUISITION AND MERGER IN THIS CASE WERE
NOT WITHIN THE COVERAGE OF SEC. 7 OF THE CLAYTON ACT. 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

                    IT IS SO ORDERED. 

/1/ THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT PURSUANT TO SEC.
2 OF THE EXPEDITING ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29. 
THE GOVERNMENT'S NOTICE OF APPEAL WAS FILED ON FEBRUARY 7, 1974, BEFORE
THE EFFECTIVE DATE OF THE RECENT AMENDMENTS TO THE ACT.  SEE ANTITRUST
PROCEDURES AND PENALTIES ACT, PUB. L.NO. 93 - 528, SEC. 7, 88 STAT.
1710. 

/2/ AT THE TIME OF THE ACQUISITION AND MERGER, JESS E. BENTON, JR.,
OWNED ALL THE STOCK OF J. E. BENTON MANAGEMENT CORP., AND 85% OF THE
STOCK OF BENTON MAINTENANCE CO. IN ADDITION TO SUPPLYING JANITORIAL
SERVICES, BENTON MANAGEMENT CONDUCTED SOME REAL ESTATE BUSINESS AND
PROVIDED BUILDING MANAGEMENT SERVICES ENTIRELY WITHIN THE SOUTHERN
CALIFORNIA AREA.  BENTON MAINTENANCE WAS ENGAGED EXCLUSIVELY IN
PROVIDING JANITORIAL SERVICES.  THE GOVERNMENT HAS MADE NO CLAIM THAT
THE NONJANITORIAL ACTIVITIES OF BENTON MANAGEMENT CORP. HAVE ANY
BEARING ON THE ISSUES PRESENTED BY THIS CASE. 

/3/ THE DISTRICT COURT FOUND THAT THE BENTON COMPANIES MADE ONLY 10
OUT-OF-STATE TELEPHONE CALLS RELATED TO BUSINESS ACTIVITIES DURING THE
18-MONTH PERIOD PRIOR TO THE CHALLENGED ACQUISITION AND MERGER.  THE
CHARGES FOR THOSE CALLS WERE $19.78.  DURING THE SAME PERIOD THE BENTON
COMPANIES SENT OR RECEIVED ONLY SOME 200 INTERSTATE LETTERS, A NUMBER
OF WHICH WERE EITHER DIRECTED TO OR RECEIVED FROM GOVERMENTAL AGENCIES
SUCH AS THE INTERNAL REVENUE SERVICE. 

/4/ ALTHOUGH MANY OF THE JANITORIAL SUPPLIES WERE MANUFACTURED
OUTSIDE OF CALIFORNIA, THE DISTRICT COURT FOUND THAT BENTON'S DIRECT
INTERSTATE PURCHASES FOR THE 16-MONTH PERIOD PRIOR TO THE CHALLENGED
ACQUISITION AND MERGER AMOUNTED TO A TOTAL OF LESS THAN $140. 

/5/ " COMMERCE," AS DEFINED BY SEC. 1 OF THE CLAYTON ACT, 15 U.S.C.
SEC. 12, MEANS "TRADE OR COMMERCE AMONG THE SEVERAL STATES AND WITH
FOREIGHN NATIONS . . . ."  THE PHRASE "ENGAGED IN COMMERCE" IS NOT
DEFINED BY THE ACT. 

/6/ CONGRESS RECENTLY ACTED TO PROVIDE SUCH A "CLEARER MANDATE,"
AMENDING THE FEDERAL TRADE COMMISSION ACT BY REPLACING THE PHRASE "IN
COMMERCE" WITH "IN OR AFFECTING COMMERCE" IN SEC. 5, 6, AND 12 OF THE
ACT.  MAGNUSON-MOSS WARRANTY--FEDERAL TRADE COMMISSION IMPROVEMENT ACT,
PUB. L.NO. 93 - 637, SEC. 201, 88 STAT. 2193, 15 U.S.C.A. SEC. 45 (FEB.
1975 SUPP.).  THE AMENDMENTS WERE SPECIFICALLY DESIGNED TO EXPAND THE
COMMISSION'S JURISDICTION BEYOND THE CONSTITUTIONAL POWER OF CONGRESS
UNDER THE COMMERCE CLAUSE.  SEE H.R.REP.  NO. 93 - 1107, PP. 29 - 31. 

/7/ THE FEDERAL TRADE COMMISSION HAS HELD THAT SUCH ACQUISITIONS MAY
BE CHALLENGEND UNDER SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, WHICH
FORBIDS UNFAIR METHODS OF COMPETITION ON THE PART OF PERSONS AND
PARTNERSHIPS, AS WELL AS CORPORATIONS.  BEATRICE FOODS CO., 67 F.T.C.
473, 724 - 727.  IT IS, OF COURSE, WELL ESTABLISHED THAT THE COMMISSION
HAS BROAD POWER TO APPLY SEC. 5 TO REACH TRANSACTIONS WHICH VIOLATE THE
STANDARDS OF THE CLAYTON ACT, ALTHOUGH TECHNICALLY NOT SUBJECT TO THE
ACT'S PROHIBITIONS.  SEE, E. G., FTC V. BROWN SHOE CO., 384 U.S. 316,
320 - 321; CF. FTC V. SPERRY & HUTCHINSON CO., 405 U.S. 233.  WE HAVE
NO OCCASION IN THE CASE NOW BEFORE US TO DECIDE WHETHER APPLICATION OF
SEC. 5 TO ASSETS ACQUISITIONS BY OR FROM NONCORPORATE BUSINESS ENTITIES
CONSTITUTES AN APPROPRIATE EXERCISE OF THAT POWER; NOR NEED WE CONSIDER
WHETHER THE ACQUISITION OF THE STOCK OR ASSETS OF AN INTRASTATE
CORPORATION THAT AFFECTED INTERSTATE COMMERCE COULD BE CHALLENGED BY
THE COMMISSION UNDER THE RECENT JURISDICTIONAL AMENDMENTS TO SEC. 5. 
SEE N. 6, SUPRA.  SEE GENERALLY OPPENHEIM, GUIDES TO HARMONIZING
CLAYTON ACTS, 59 MICH. L.REV.  821; REEVES, TOWARD A COHERENT ANTITRUST
POLICY:  THE ROLE OF SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT IN
PRICE DISCRIMINATION REGULATION, 16 B.C.IND.  & COM. L.REV.  151, 167 -
171. 

/8/ DESPITE THIS CONCESSION, THE GOVERNMENT SOMEWHAT INCONSISTENTLY
ARGUES THAT THE PRESENT CASE DOES NOT IN FACT INVOLVE A SUBSTANTIAL
DEPARTURE FROM THE PREVIOUS SEC. 7 ENFORCEMENT PATTERN.  IN THE PAST,
THE GOVERNMENT ASSERTS, THE UNITED STATES HAS CHALLENGED ACQUISITIONS
OF "ESSENTIALLY LOCAL BUSINESSES THAT AFFECTED INTERSTATE COMMERCE." 
UNITED STATES V. VON'S GROCERY CO., 384 U.S. 270, IS CITED AS AN
EXAMPLE OF SUCH A CHALLENGE.  BUT THE DISTRICT COURT IN THAT CASE
EXPRESSLY FOUND THAT BOTH OF THE MERGING GROCERY CHAINS DIRECTLY
PARTICIPATED IN THE FLOW OF INTERSTATE COMMERCE BECAUSE EACH PURCHASED
MORE THAN 51% OF ITS SUPPLIES FROM OUTSIDE OF CALIFORNIA.  SEE 233
F.SUPP.  976, 978.  AND IN UNITED STATES V. COUNTY NATIONAL BANK, 339
F.SUPP.  85, THE ONLY OTHER CASE CITED BY THE GOVERNMENT TO SUPPORT ITS
CONTENTION THAT THE CASE NOW BEFORE US DOES NOT INVOLVE A DEPARTURE
FROM PREVIOUS ENFORCEMENT POLICY, THE SOLE QUESTION WAS QUITE DIFFERENT
FROM THAT HERE IN ISSUE--WHETHER THE " BENNINGTON AREA" WAS A "SECTION
OF THE COUNTRY" WITHIN THE MEANING OF SEC. 7 OF THE CLAYTON ACT. 

/9/ THE BENTON COMPANIES DERIVED 80% TO 90% OF THEIR REVENUES FROM
PERFORMANCE OF JANITORIAL SERVICE CONTRACTS FOR THE LOS ANGELES
FACILITIES OF INTERSTATE AND INTERNATIONAL CORPORATIONS SUCH AS MOBIL
OIL CORP., ROCKWELL INTERNATIONAL CORP., TELEDYNE, INC., AND PACIFIC
TELEPHONE & TELEGRAPH CO. 

/10/ THE GOVERNMENT NOTES THAT THIS COURT HAS HELD THAT MAINTENANCE
WORKERS SERVICING BUILDINGS IN WHICH GOODS ARE PRODUCED FOR INTERSTATE
MARKETS ARE COVERED BY FAIR LABOR STANDARDS ACT PROVISIONS APPLICABLE
TO EMPLOYEES ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE.  SEE, E.
G., KIRSCHBAUM CO. V. WALLING, 316 U.S. 517; MARTINO V. MICHIGAN WINDOW
CLEANING CO., 327 U.S. 173.  IN KIRSCHBAUM THE COURT REASONED:  "
WITHOUT LIGHT AND HEAT AND POWER THE TENANTS COULD NOT ENGAGE, AS THEY
DO, IN THE PRODUCTION OF GOODS FOR INTERSTATE COMMERCE.  THE
MAINTENANCE OF A SAFE, HABITABLE BUILDING IS INDISPENSABLE TO THAT
ACTIVITY."  316 U.S., AT 524.  SIMILARLY, THE GOVERNMENT ARGUES, IN THE
PRESENT CASE THE BENTON JANITORIAL SERVICES WERE SO ESSENTIAL TO THE
INTERSTATE OPPERATIONS OF THEIR CUSTOMERS THAT THEY, TOO SHOULD BE
CONSIDERED PART OF THE FLOW OF COMMERCE. 

THE FAIR LABOR STANDARDS ACT, HOWEVER, IS NOT CONFINED, AS IS SEC. 7
OF THE CLAYTON ACT, TO ACTIVITIES THAT ARE ACTUALLY "IN COMMERCE."  AT
THE TIME OF THE DECISIONS RELIED UPON BY THE GOVERNMENT, THE ACT
PROVIDED THAT "AN EMPLOYEE SHALL BE DEEMED TO HAVE BEEN ENGAGED IN THE
PRODUCTION OF GOODS (FOR INTERSTATE COMMERCE) IF SUCH EMPLOYEE WAS
EMPLOYED IN PRODUCING, MANUFACTURING, MINING, HANDLING, TRANSPORTING,
OR IN ANY OTHER MANNER WORKING ON SUCH GOODS, OR IN ANY PROCESS OR
OCCUPATION NECESSARY TO THE PRODUCTION THEREOF . . . ."  FAIR LABOR
STANDARDS ACT OF 1938, SEC. 3 (J), 52 STAT. 1061, AS AMENDED, 29 U.S.C.
SEC. 203 (J) (1946 ED.)  (EMPHASIS ADDED).  CONGRESS THUS EXPRESSLY
INTENDED TO REACH NOT ONLY THOSE EMPLOYEES WHO DIRECTLY PARTICIPATED IN
THE PRODUCTION OF GOODS FOR INTERSTATE MARKETS, BUT ALSO THOSE
EMPLOYEES OUTSIDE THE FLOW OF COMMERCE BUT NONETHELESS NECESSARY TO IT.
ALTHOUGH CONGRESS IN 1950 COULD CONSTITUTIONALLY HAVE EXTENDED SEC. 7
OF THE CLAYTON ACT TO REACH COMPARABLE ACTIVITY, IT CHOSE NOT TO DO SO.
SEE SUPRA, AT 279 - 281. 

/11/ THE GOVERNMENT DOES NOT SUGGEST THAT THE PURCHASE OF JANITORIAL
EQUIPMENT AND SUPPLIES FROM LOCAL DISTRIBUTORS PLACED THE BENTON
COMPANIES IN THE FLOW OF COMMERCE, ALTHOUGH IT DOES ARGUE THAT BECAUSE
OF THOSE PURCHASES THE FIRMS HAD A SUBSTANTIAL EFFECT ON INTERSTATE
COMMERCE--AN ISSUE NOT RELEVANT IN LIGHT OF OUR CONSTRUCTION OF THE
REACH OF SEC. 7 OF THE CLAYTON ACT. 

/12/ THE GOVERNMENT CONTENDS THAT THE SALE OF JAITORIAL SERVICES
"NECESSARILY" INVOLVES INTERSTATE COMMUNICATIONS, SOLICITATIONS, AND
NEGOTIATIONS, AND THAT SUCH INTERSTATE ACTIVITY SHOULD BE VIEWED AS
PART OF THE FLOW OF INTERSTATE COMMERCE.  THE MERITS OF THAT ARGUMENT
NEED NOT BE CONSIDERED, HOWEVER, SINCE THE RECORD BEFORE THE DISTRICT
COURT DOES NOT SUPPORT A FINDING THAT ANY OF THE BENTON JANITORIAL
SERVICE CONTRACTS WERE OBTAINED THROUGH INTERSTATE SOLICITATION OR
NEGOTIATION. 

MR. JUSTICE WHITE, CONCURRING. 

I CONCUR IN THE JUDGMENT AND IN PARTS I AND II OF THE COURT'S
OPINION.  I DO NOT JOIN PART III, FOR I DOUBT THAT THE INTERPOSITION OF
A CALIFORIA WHOLESALER OR DISTRIBUTOR BETWEEN THE BENTON COMPANIES AND
OUT-OF-STATE MANUFACTURERS OF JANITORIAL SUPPLIES NECESSARILY REQUIRES
THAT THE BENTON COMPANIES BE FOUND NOT TO BE "IN COMMERCE" MERELY
BECAUSE THEY BUT DIRECTLY FROM OUT-OF-STATE SUPPLIERS ONLY A NEGLIGIBLE
AMOUNT OF THEIR SUPPLIES.  FOR THE PURPOSES OF SEC. 7 OF THE CLAYTON
ACT, A REMEDIAL STATUTE, THE REGULAR MOVEMENT OF GOODS FROM OUT-OF
STATE MANUFACTURER TO LOCAL WHOLESALER AND THEN TO RETAILER OR
INSTITUTIONAL CONSUMER IS AT LEAST ARGUABLY SUFFICIENT TO PLACE THE
LATTER IN THE STREAM OF COMMERCE, PARTICULARLY WHERE IT APPEARS THAT
WHEN THE COMPLAINT WAS FILED, CF. UNITED STATES V. PENN-OLIN CO., 378
U.S. 158, 168 (1964), THE "LOCAL" DISTRIBUTOR FROM WHICH SUPPLIES WERE
BEING PURCHASED WAS A WHOLLY OWEND SUBSIDIARY OD THE ACQUIRING COMPANY,
A NATIONAL CONCERN ADMITTEDLY IN COMMERECE.  IN THIS CASE, HOWEVER, THE
UNITED STATES MAKES NO SUCH CONTENTION AND APPELLEE'S MOTION FOR
SUMMARY JUDGMENT WAS NOT OPPOSED BY THE GOVERNMENT ON THAT THEORY.  IT
IS THEREFORE INAPPROPRIATE TO ADDRESS THE ISSUE AT THIS TIME; AND ON
THIS RECORD, I CONCUR IN THE JUDGMENT THAT THE BENTON COMPANIES WERE
NOT IN COMMERCE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

FOR THE REASONS SET FORTH IN MY DISSENTING OPINION IN GULF OIL CORP.
V. COPP PAVING CO., 419 U.S. 186, 204 - 207 (1974), DECIDED EARLIER
THIS TERM, I CANNOT AGREE THAT THE "IN COMMERCE" LANGUAGE OF SEC. 7 OF
THE CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15 U.S.C. SEC. 18, WAS
INTENDED TO GIVE THAT STATUTE A NARROWER JURISDICTIONAL REACH THAN THE
"AFFECTING COMMERCE" STANDARD WHICH WE HAVE READ INTO THE SHERMAN ACT,
26 STAT. 209, AS AMENDED, 15 U.S.C. SEC. 1 ET SEQ. ON THE RECORD IN
THIS CASE, IT IS BEYOND QUESTION THAT THE ACTIVITIES OF THE ACQUIRED
FIRMS HAVE A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE.  I WOULD
THEREFORE REVERSE THE SUMMARY JUDGMENT GRANTED BELOW AND REMAND FOR
FURTHER PROCEEDINGS IN THE DISTRICT COURT. 

MR. JUSTICE BLACKMUN, DISSENTING. 

I BELIEVE THAT THE SCOPE OF THE CLAYTON ACT SHOULD BE HELD TO EXTEND
TO ACQUISITIONS AND SALES HAVING A SUBSTANTIAL EFFECT ON INTERSTATE
COMMERCE.  I THEREFORE DISSENT.  FOR ME, THE REACH OF SEC. 7 OF THE
CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15 U.S.C. SEC. 18, IS AS BROAD
AS THAT OF THE SHERMAN ACT, AND SHOULD NOT BE GIVEN THE NARROW
CONSTRUCTION WE PROPERLY HAVE GIVEN, JUST THIS TERM, TO THE ROBINSON
PATMAN ACT.  GULF OIL CORP. V. COPP PAVING CO., 419 U.S. 186 (1974). 

FOR MORE THAN A QUARTER OF A CENTURY THE COURT HAS HELD THAT THE
SHERMAN ACT SHOULD BE CONSTRUED BROADLY TO REACH THE FULL EXTENT OF THE
COMMERCE POWER, AND TO PROSCRIBE THOSE RESTRAINTS THAT SUBSTANTIALLY
AFFECT INTERSTATE COMMERCE.  SEE, E. G., MANDEVILLE ISLAND FARMS, INC.
V. AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219, 234 (1948); UNITED STATES
V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533, 558 (1944).  THE
CLAYTON ACT WAS ENACTED TO SUPPLOEMENT THE SHERMAN ACT, AND TO "ARREST
IN ITS INCIPIENCY" ANY RESTRAINT OR SUBSTANTIAL LESSENING OF
COMPETITION.  UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S.
586, 589 (1957).  TO ASCRIBE TO CONGRESS THE INTENT TO EXERCISE LESS
THAN ITS FULL COMMERCE POWER IN THE CLAYTON ACT, WHICH HAS AS ITS
PURPOSE THE SUPPLEMENTATION OF THE PROTECTIONS AFFORDED BY THE SHERMAN
ACT, IS BOTH HIGHLY ANOMALOUS AND, IT SEEMS TO ME, UNWARRANTED. 
CORPORATIONS ENGAGED IN INTERSTATE COMMERCE, BUT SHOULD BE HELD TO
INCLUDE THOSE INTRASTATE ACTIVITIES SUBSTANTIALLY AFFECTING INTERSTATE
COMMERCE. 

DEPUTY ASSISTANT ATTORNEY GENERAL WILSON ARGUED THE CAUSE FOR THE
UNITED STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL BORK,
ASSISTANT ATTORNEY GENERAL KAUPER, WILLIAM L. PATTON, CARL D. LAWSON,
AND LEE I. WEINTRAUB. 

MARCUS MATTSON ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WAS ANTHONIE M. VOOGD. 
..END :













JIMENEZ V. WEINBERGER, 417 U.S. 628 


       JIMENEZ ET AL. V. WEINBERGER, SECRETARY OF HEALTH,

           EDUCATION, AND WELFARE

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS

        NO. 72 - 6609.  ARGUED MARCH 18, 1974--DECIDED JUNE 19,

           1974; 353 F.SUPP.  1356, VACATED AND REMANDED. 


    UNDER THE SOCIAL SECURITY ACT ILLEGITIMATE CHILDREN ARE DEEMED

  ENTITLED TO DISABILITY INSURANCE BENFITS WITHOUT ANY SHOWING THAT

  THEY ARE IN FACT DEPENDENT UPON THEIR DISABLED PARENT IF STATE

  LAW PERMITS THEM TO INHERIT FROM THE WAGE-EARNER PARENT; IF THEIR

  ILLEGITIMACY RESULTS SOLELY FROM FORMAL, NONOBVIOUS DEFECTS IN

  THEIR PARENTS' CEREMONIAL MARRIAGE; OR IF THEY ARE LEGITIMATED IN

  ACCORDANCE WITH STATE LAW.  AN ILLEGITIMATE CHILD UNABLE TO MEET

  ANY OF THE FOREGOING CONDITIONS CAN QUALIFY ONLY IF THE DISABLED

  WAGE-EARNER PARENT CONTRIBUTED TO THE CHILD'S SUPPORT OR LIVED

  WITH HIM PRIOR TO THE PARENT'S DISABILITY, 42 U.S.C. 416 (H) (3)

  (B); IF THE CHILD IS BORN AFTER THE ONSET OF THE PARENT'S

  DISABILITY AND IS UNABLE TO MEET ANY OF THE FOREGOING CONDITIONS,

  THE STATUTE BARS THE CHILD'S BENEFITS WITHOUT ANY OPPORTUNITY TO

  ESTABLISH ENTITLEMENT THERETO.  RAMON JIMENEZ, A RESIDENT OF

  ILLINOIS (WHICH DOES NOT ALLOW NONLEGITIMATED ILLEGITIMATE

  CHILDREN TO INHERIT FROM THEIR FATHER), IS A WAGE EARNER COVERED

  BY THE ACT WHO BECAME ENTITLED TO DISABILITY BENEFITS FOR

  APPELLANTS, TWO OF HIS NONLEGITIMATED ILLEGITIMATE CHILDREN WHO

  WERE BORN AFTER THE ONSET OF DISABILITY.  THE CLAIMS WERE DENIED

  SINCE THE CHILDREN DID NOT MEET THE REQUIREMENTS OF 42 U.S.C. 416

  (H) (3) (B) OR THE OTHER QUALIFYING PROVISIONS OF THE ACT. 

  APPELLANTS BROUGHT THIS ACTION FOR REVIEW OF THE DENIAL OF

  BENEFITS.  A THREE-JUDGE DISTRICT COURT UPHELD THE STATUTORY

  CLASSIFICATION AS BEING RATIONALLY RELATED TO THE PROPER

  GOVERNMENTAL INTEREST OF AVOIDING SPURIOUS CLAIMS HELD:  TITLE 42

  U.S.C. 416 (H) (3) (B), AS PART OF THE STATUTORY SCHEME

  APPLICABLE TO ILLEGITIMATES, CONTRAVENES THE DUE PROCESS CLAUSE

OF THE FIFTH AMENDMENT AND THE EQUAL PROTECTION OF THE LAWS

  GUARANTEED THEREBY.  PP. 631 - 638. 

     (A) "(THE EQUAL PROTECTION CLAUSE (IS VIOLATED BY)

  DISCRIMINATORY LAWS RELATING TO STATUS OF BIRTH WHERE . . . THE

  CLASSIFICATION IS JUSTIFIED BY NO LEGITIMATE STATE INTEREST,

  COMPELLING OR OTHERWISE."  WEBER V. AETNA CASUALTY & SURETY CO.,

  406 U.S. 164, 176.  DANDRIDGE V. WILLIAMS, U.S. 471,

  DISTINGUSHED.  PP. 631 - 634. 

     (B) THE PRIMARY PURPOSE OF THE CONTESTED PROVISION OF THE ACT

  IS TO PROVIDE SUPPORT FOR DEPENDENTS OF A DISABLED WAGE EARNER

  AND IS NOT, AS APPELLEE CONTENDS, TO REPLACE ONLY THAT SUPPORT

ACTUALLY ENJOYED BEFORE THE ONSET OF DISABILITY PP. 634 - 635. 

     (C) THE COMPLETE STATUORY BAR TO DISABILITY BENEFITS IMPOSED

  UPON NONLEGITIMATED AFTERBORN ILLEGITIMATES IN APPELLANTS'

  POSITION, THE SAME AS TO BOTH.  EVEN IF CHILDREN MIGHT RATIONALLY

  BE CLASSIFIED ON THE BASIS OF WHETHER THEY ARE DEPENDENT UPON

  THEIR DISABLED PARENTS, THE ACT'S DEFINTION OF TWO SUBCLASSES OF

  ILLEGITIMATES IS "OVERINCLUSIVE" IN THAT IT BENEFITS SOME

  CHILDREN WHO ARE LEGITIMATED, OR ENTITLED TO INHERIT, OR

  ILLEGITIMATE SOLELY BECAUSE OF A DEFECT IN THE MARRIAGE OF THEIR

  PARENTS, BUT WHO ARE NOT DEPENDENT ON THEIR DISABLED PARENT. 

CONVERSELY, THE ACT IS "UNDERINCLUSIVE"  IN THAT IT CONCLUSIVELY

  EXCLUDES SOME ILLEGITIMATES IN APPELLANTS' SUBCLASS WHO ARE, IN

  FACT, DEPENDENT UPON THEIR DISABLED PARENT.  PP. 635 - 637. 

     (D) THE JUDGMENT IS VACATED AND THE CASE REMANDED TO PROVIDE

  APPELLANTS AN OPPORTUNITY TO ESTABLISH THEIR CLAIM TO ELIGIBILITY

  AS "CHILDREN" OF THE CLAIMANT ELIGIBLE FOR BENEFITS UNDER THE

  ACT.  PP. 637 - 638. 

     BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, ANS POWELL,

  JJ., JOINED.  REHNQUIST, J., FILED A DISSENTING OPINION, POST, P.

  638. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

A THREE-JUDGE DISTRICT COURT IN THE NORTHERN DISTRICT OF ILLINOIS
UPHELD THE CONSTITUTIONALITY OF A PROVISION OF THE SOCIAL SECURITY ACT
WHICH PROVIDES THAT CERTAIN ILLEGITIMATE CHILDREN, WHO CANNOT QUALIFY
FOR BENEFITS IF, BUT ONLY IF, THE DISABLED WAGE-EARNER PARENT IS SHOWN
TO HAVE CONTRIBUTED TO THE CHILD'S SUPPORT OR TO HAVE LIVED WITH HIM
PRIOR TO THE PARENT'S DISABILITY.  /1/  THE DISTRICT COURT HELD THAT
THE STATUTE'S CLASSIFICATION IS RATIONALLY RELATED TO THE LEGITIMATE
GOVERNMENTAL INTEREST OF AVOIDING SPURIOUS CLAIMS.  JIMENEZ V.
RICHARDSON, 353 F. SUPP. 1356, 1361 (1973).  WE NOTED PROBABLE
JURISDICTION.  414 U.S. 1061. 

THE RELEVANT FACTS ARE NOT IN DISPUTE.  RAMON JIMENIZ, A WAGE EARNER
COVERED UNDER THE SOCIAL SECURITY ACT, BECAME DISABLED IN APRIL 1963,
AND BECAME ENTITLED TO DISABILITY BENEFITS IN OCTOBER 1963.  SOME YEARS
PRIOR TO THAT TIME, THE CLAIMANT SEPARATED FROM HIS WIFE AND BEGAN
LIVING WITH ELIZABETH HERNANDEZ, WHOM HE NEVER MARRIED.  THREE CHILDREN
WERE BORN TO THEM, MAGDALENA, BORN AUGUST 13, 1963, EUGENIO, BORN
JANUARY 18, 1965, AND ALICIA, BORN FEBRUARY 24, 1968.  THESE CHILDREN
HAVE LIVED IN ILLINOIS WITH CLAIMANT ALL THEIR LIVES; HE HAS FORMALLY
ACKNOWLEDGED THEM TO BE HIS CHILDREN, HAS SUPPORTED AND CARED FOR THEM
SINCE THEIR BIRTH, AND HAS BEEN THEIR SOLE CARETAKER SINCE THEIR MOTHER
LEFT THE HOUSEHOLD LATE IN 1968.  SINCE THE PARENTS NEVER MARRIED,
APPELLANTS ARE CLASSIFIED AS ILLEGITIMATE UNDER ILLINOIS LAW AND ARE
UNABLE TO INHERIT FROM THEIR FATHER BECAUSE THEY ARE NONLEGITIMATE
ILLEGITIMATE CHILDREN.  I11.  ANN. STAT., C. 3, 12. 

ON AUGUST 21, 1968, RAMON JIMENEZ, AS THE FATHER, FILED AN
APPLICATION FOR CHILD'S INSURANCE BENEFITS ON BEHALF OF THESE THREE
CHILDREN.  MAGDALENA WAS FOUND TO BE ENTITLED TO CHILD'S INSURANCE
BENEFITS UNDER THE STATUTE BECAUSE SHE HAD BEEN CONCEIVED BEFORE
JIMENEZ BECAME DISABLED AND ISSUE IS PRESENTED WITH RESPECT TO HER
ENTITLEMENT TO BENEFITS.  THE CLAIMS OF EUGENIO AND ALICIA WERE DENIED,
HOWEVER, ON THE GROUND THAT THEY DID NOT MEET THE REQUIREMENTS OF 42
U.S.C. 416 (H) (3), SINCE NEITHER CHILD'S PATERNITY HAD BEEN
ACKNOWLEDGED OR AFFIRMED THROUGH EVIDENCE OF DOMICILE AND SUPPORT
BEFORE THE ONSET OF THEIR FATHER'S DISABILITY.  /2/  IN ALL OTHER
RESPECT EUGENIO AND ALICIA ARE ELIGIBLE TO RECEIVE CHILD'S INSURANCE
BENEFITS AND THEIR APPLICATIONS WERE DENIED SOLELY BECAUSE THEY ARE
PROSCRIBED ILLEGITIMATE CHILDREN BORN AFTER THE ONSET OF THE FATHER'S
DISABILITY. 

APPELLANTS URGE THAT THE CONTESTED SOCIAL SECURITY PROVISION IS
BASED UPON THE SO-CALLED "SUSPECT CLASSIFICATION"  OF ILLEGITIMACY. 
LIKE RACE AND NATIONAL ORIGIN, THEY ARGUE, ILLEGITIMACY IS A
CHARACTERISTIC DETERMINED SOLELY BY THE ACCIDENT OF BIRTH; IT IS A
CONDITION BEYOND THE CONTROL OF THE CHILDREN, AND IT IS A STATUS THAT
SUBJECTS THE CHILDREN TO A STIGMA OF INFERIORITY AND A BADGE OF
OPPROBRIUM WE NEED NOT REACH APPELLANTS' ARGUMENT, HOWEVER, BECAUSE IN
THE CONTEXT OF THIS CASE IT IS ENOUGH THAT WE NOTE, AS WE DID IN WEBER
V. AETNA CASUALTY & SURETY CO., 406 U.S. 164 (1972): 

    "THE STATUS OF ILLEGITIMACY HAS EXPRESSED THROUGH THE AGES

  SOCIETY'S CONDEMNATION OF IRRESPONSIBLE LIAISONS BEYOND THE BONDS

  OF MARRIAGE.  BUT VISITING THIS CONDEMNATION ON THE HEAD OF AN

  INFANT IS ILLOGICAL AND UNJUST.  MOREOVER, IMPOSING DISABILITIES

  ON THE ILLEGITIMATE CHILD IS CONTRARY TO THE BASIC CONCEPT OF OUR

  SYSTEM THAT LEGAL BURDENS SHOULD BEAR SOME RELATIONSHIP TO

  INDIVIDUAL RESPONSIBILITY OR WRONGDOING.  OBVIOUSLY, NO CHILD IS

  RESPONSIBLE FOR HIS BIRTH AND PENALIZING THE ILLEGITIMATE CHILD

 IS AN

INEFFECTUAL--AS WELL AS AN UNJUST--WAY OF DETERRING THE

  PARENT.  COURT ARE POWERLESS TO PREVENT THE SOCIAL OPPROBRIUM
SUFFERED BY THESE HAPLESS

  CHILDREN, BUT THE EQUAL PROTECTION CLAUSE DOES ENABLE US TO
STRIKE DOWN DISCRIMINATORY LAWS

  RELATING TO STATUS OF BIRTH WHERE . . . THE CLASSIFICATION IS
JUSTIFIED BY NO LEGITIMATE STATE

  INTEREST, COMPELLING OR OTHERWISE."  ID., AT 175 - 176. 

CONVERSELY, THE SECRETARY URGES US TO UPHOLD THIS STATUTORY SCHEME
ON THE GROUND THAT THE CASE IS CONTROLLED BY THE COURT'S RECENT RULING
IN DANDRIDGE V. WILLIAMS,397 U.S. 471 (1970), WHERE WE NOTED: 

     "IN THE AREA OF ECONOMICS AND SOCIAL WELFARE, A STATE DOES NOT

  VIOLATE THE EQUAL PROTECTION CLAUSE MERELY BECAUSE THE

  CLASSIFICATIONS MADE BY ITS LAWS ARE IMPERFECT.  IF THE

  CLASSIFICATION HAS SOME 'REASONABLE BASIS', IT DOES NOT OFFEND

  THE CONSTITUTION SIMPLY BECAUSE THE CLASSIFICATION 'IS NOT MADE

  WITH MATHEMATICAL NICETY OR BECAUSE IN PRACTICE IT RESULTS IN

  SOME INEQUALITY.'  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S.

  61, 78.  THE PROBLEMS OF GOVERNMENT ARE PRACTICAL ONES AND MAY

  JUSTIFY, IF THEY DO NOT REQUIRE, ROUGH ACCOMMODATIONS--ILLOGICAL,

 IT MAY BE, AND UNSCIENTIFIC., METROPOLIS THEATRE CO. V. CITY OF

  CHICAGO, 228 U.S. 61, 69 - 70.  'A STATUTORY DISCRIMINATION WILL

  NOT BE SET ASIDE IF ANY STATE OF FACTS REASONABLY MAY BE

  CONCEIVED TO JUSTIFY IT.'  MCGOWAN V. MARYLAND, 366 U.S. 420,

  426."  ID., AT 485. 

HOWEVER, DANDRIDGE INVOLVED AN EQUAL PROTECTION ATTACK UPON
MARYLAND'S AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM WHICH
PROVIDED AID IN ACCORDANCE WITH THE FAMILY'S STANDARD OF NEED, BUT
LIMITED THE MAXIMUM GRANT TO $250 PER FAMILY, REGARDLESS OF SIZE,
THEREBY REDUCING THE PER CAPITA ALLOWANCE FOR CHILDREN OF LARGE
FAMILIES.  WE NOTED THAT THE AFDC WELFARE PROGRAM IS A "'SCHEME OF
COOPERATIVE FEDERALISM'" AND THAT THE STARTING POINT OF THE STATUTORY
ANALYSIS MUST BE A RECOGNITION THAT THE FEDERAL LAW GIVES EACH STATE
GREAT LATITUDE IN DISPENSING ITS AVAILABLE FUNDS."  ID., AT 478.  THIS
SPECIAL DEFERENCE TO MARYLAND'S STATUTORY APPROACH WAS NECESSARY
BECAUSE, "(GIVEN MARYLAND'S FINITE RESOURCES, ITS CHOICE IS EITHER TO
SUPPORT SOME FAMILIES ADEQUATELY AND OTHERS LESS ADEQUATELY, OR NOT TO
GIVE SUFFICIENT SUPPORT TO ANY FAMILY."  ID., AT 479.  HERE, BY
CONTRAST, THERE IS NO EVIDENCE SUPPORTING THE CONTENTION THAT TO ALLOW
ILLEGITIMATES IN THE CLASSIFICATION OF APPELLANTS TO RECEIVE BENEFITS
WOULD SIGNIFICANTLY IMPAIR THE FEDERAL SOCIAL SECURITY TRUST FUND AND
NECESSITATE AN REDUCTION IN THE SCOPE OF PERSONS BENEFITED BY THE ACT. 
ON THE CONTRARY, THE SECRETARY HAS PERSISTENTLY MAINTAINED THAT THE
PURPOSE OF THE CONTESTED STATUTORY SCHEME IS TO PROVIDE SUPPORT FOR
DEPENDENTS OF A WAGE EARNER WHO HAS LOST HIS EARNING POWER, AND THAT
THE PROVISIONS EXCLUDING SOME AFTERBORN ILLEGITIMATES FROM RECOVERY ARE
DESIGNED ONLY TO PREVENT SPURIOUS CLAIMS AND ENSURE AND THAT ONLY THOSE
ACTUALLY ENTITLED TO BENEFIT RECEIVE PAYMENTS.  ACCEPTING THIS VIEW OF
THE RELEVANT PROVISIONS OF THE ACT, WE CANNOT CONCLUDE THAT THE PURPOSE
OF THE STATUTORY EXCLUSION OF SOME AFTERBORN ILLEGITIMATES IS TO
ACHIEVE A NECESSARY ALLOCATION OF FINITE RESOURCES AND, TO THAT EXTENT,
DANDRIDGE IS DISTINGUISHABLE AND NOT CONTROLLING. 

AS WE HAVE NOTED, THE PRIMARY PURPOSE OF THE CONTESTED SOCIAL
SECURITY SCHEME IS TO PROVIDE SUPPORT FOR DEPENDENTS OF A DISABLED WAGE
EARNER.  /3/  THE SECRETARY MAINTAINS THAT THE ACT DENIES BENEFITS TO
AFTERBORN ILLEGITIMATES WHO CANNOT INHERIT OR WHOSE ILLEGITIMACY IS NOT
SOLELY BECAUSE OF A FORMAL, NONOBVIOUS DEFECT IN THEIR PARENTS' WEDDING
CEREMONY, OR WHO ARE NOT LEGITIMATED, BECAUSE IT IS "LIKELY" THAT THESE
ILLEGITIMATES, AS A CLASS, WILL NOT POSSESS THE REQUISITE ECONOMIC
DEPENDENCY ON THE WAGE EARNER WHICH WOULD ENTITLE THEM TO RECOVERY
UNDER THE ACT AND BECAUSE ELIGIBILITY FOR SUCH BENEFITS TO THOSE
ILLEGITIMATES WOULD OPEN THE DOOR TO SPURIOUS CLAIMS.  UNDER THIS VIEW
THE ACT'S PURPOSE WOULD BE TO REPLACE ONLY THAT SUPPORT ENJOYED PRIOR
TO THE ONSET OF DISABILITY; NO CHILD WOULD BE ELIGIBLE TO RECEIVE
BENEFITS UNLESS THE CHILD HAD EXPERIENCED ACTUAL SUPPORT FROM THE WAGE
EARNER PRIOR TO THE DISABILITY, AND NO CHILD BORN AFTER THE ONSET OF
THE WAGE EARNER'S DISABILITY WOULD BE ALLOWED TO RECOVER.  WE DO NOT
READ THE STATUTE AS SUPPORTING THAT VIEW OF ITS PURPOSE.  UNDER THAT
STATUTE IT IS CLEAR THAT ILLEGITIMATE CHILDREN BORN AFTER THE WAGE
EARNER BECOMES DISABLED QUALIFY FOR BENEFITS IF STATE LAW PERMITS THEM
TO INHERIT FROM THE WAGE EARNER, 416 (H) (2) (A); OR IF THEIR
ILLEGITIMACY RESULTS SOLELY FROM FORMAL, NONOBVIOUS DEFECTS IN THEIR
PARENTS' CEREMONIAL MARRIAGE, 416 (H) (2) (B); OR IF THEY ARE
LEGITIMATED IN ACCORDANCE WITH STATE LAW, 402 (D) (3) (A).  SIMILARLY,
LEGITIMATE CHILDREN BORN AFTER THEIR WAGE-EARNING PARENT HAS BECOME
DISABLED AND LEGITIMATE CHILDREN BORN BEFORE THE ONSET OF DISABILITY
ARE ENTITLED TO BENEFITS REGARDLESS OF WHETHER THEY WERE LIVING WITH OR
BEING SUPPORTED BY THE DISABLED PARENT AT THE ONSET OF THE DISABILITY,
402 (B) (1) AND (3). 

IN EACH OF THE EXAMPLES JUST MENTIONED, THE CHILD IS BY STATUTE
"DEEMED DEPENDENT" UPON THE PARENT BY VIRTUE OF HIS STATUS AND NO
DEPENDENCY OR PATERNITY NEED BE SHOWN FOR THE CHILD TO QUALIFY FOR
BENEFITS.  HOWEVER, NONLEGITIMATED ILLEGITIMATES IN APPELLANTS'
POSITION, WHO CANNOT INHERIT UNDER STATE LAW AND WHOSE ILLEGITIMACY
DOES NOT DERIVE SOLELY FROM A DEFACT IN THEIR PARENTS' WEDDING
CEREMONY, ARE DENIED A PARALLEL RIGHT TO THE DEPENDENCY PRESUMPTION
UNDER THE ACT.  THEIR DILEMMA IS COMPOUNDED BY THE FACT THAT THE
STATUTE DENIES THEM ANY OPPORTUNITY TO PROVE DEPENDENCY IN ORDER TO
ESTABLISH THEIR "CLAIM" TO SUPPORT AND, HENCE, THEIR RIGHT TO
ELIGIBLITY.  416 (H) (3) (B).  THE SECRETARY MAINTAINS THAT THIS
ABSOLUTE BAR TO DISABILITY BENEFITS IS NECESSARY TO PREVENT SPURIOUS
CLAIMS BECAUSE "(TO THE UNSCRUPULOUS PERSON, ALL THAT PREVENTS HIM FROM
REALIZING.  . . GAIN IS THE MERE FORMALITY OF A SPURIOUS
ACKNOWLEDGEMENT OF PATERNITY OR A COLLUSIVE PATERNITY SUIT WITH THE
MOTHER OF AN ILLEGITIMATE CHILD WHO IS HERSELF DESIROUS OR IN NEED OF
THE ADDITIONAL CASH."  JIMENEZ V. RICHARDSON, 353 F. SUPP., AT 1361. 

FROM WHAT HAS BEEN OUTLINED IT EMERGES THAT AFTERBORN ILLEGITIMATE
CHILDREN ARE DIVIDED INTO TWO SUBCLASSIFICATIONS UNDER THIS STATUTE. 
ONE SUBCLASS IS MADE UP OF THOSE (A) WHO CAN INHERIT UNDER STATE
INTESTACY LAWS, OR (B) WHO ARE LEGITIMATED UNDER STATE LAW, OR (C) WHO
ARE ILLEGITIMATE ONLY BECAUSE OF SOME FORMAL DEFECT IN THEIR PARENTS'
CEREMONIAL MARRIAGE.  THESE CHILDREN ARE DEEMED ENTITLED TO RECEIVE
BENEFITS UNDER THE ACT WITHOUT ANY SHOWING THAT THEY ARE IN FACT
DEPENDENT UPON THEIR DISABLED PARENT.  THE SECOND SUBCLASSIFICATION OF
AFTERBORN ILLEGITIMATE CHILDREN INCLUDES THOSE WHO ARE CONCLUSIVELY
DENIED BENEFITS BECAUSE THEY DO NOT FALL WITHIN ONE OF THE FOREGOING
CATEGORIES AND ARE NOT ENTITLED TO RECEIVE INSURANCE BENEFITS UNDER ANY
OTHER PROVISION OF THE ACT. 

WE RECOGNIZE THAT THE PREVENTION OF SPURIOUS CLAIMS IS A LEGITIMATE
GOVERNMENTAL INTEREST AND THAT DEPENDENCY OF ILLEGITIMATES IN
APPELLANTS' SUBCLASS, AS DEFINED UNDER THE FEDERAL STATUTE, HAS NOT
BEEN LEGALLY ESTABLISHED EVEN THOUGH, AS HERE, PATERNITY HAS BEEN
ACKNOWLEDGED.  AS WE HAVE NOTED, THE SECRETARY MAINTAINS THAT THE
POSSIBILITY THAT EVIDENCE OF PARENTAGE OR SUPPORT MAY BE FABRICATED IS
GREATER WHEN THE CHILD IS NOT BORN UNTIL AFTER THE WAGE EARNER HAS
BECOME ENTITLED TO BENEFITS.  IT DOES NOT FOLLOW, HOWEVER, THAT THE
BLANKET AND CONCLUSIVE EXCLUSION OF APPELLANTS' SUBCLASS OF
ILLEGITIMATES IS REASONABLY RELATED TO THE PREVENTION OF SPURIOUS
CLAIMS.  ASSUMING THAT THE APPELLANTS ARE IN FACT DEPENDENT ON THE
CLAIMANT, IT WOULD NOT SERVE THE PURPOSES OF THE ACT TO CONCLUSIVELY
DENY THEM AN OPPORTUNITY TO ESTABLISH THEIR DEPENDENCY AND THEIR RIGHT
TO INSURANCE BENEFITS, AND IT WOULD DISCRIMINATE BETWEEN THE TWO
SUBCLASSES OF AFTERBORN ILLEGITIMATES WITHOUT ANY BASIS FOR THE
DISTINCTION SINCE THE POTENTIAL FOR SPURIOUS CLAIMS IS EXACTLY THE SAME
AS TO BOTH SUBCLASSES. 

THE SECRETARY DOES NOT CONTEND THAT IT IS NECESSARILY OR UNIVERSALLY
TRUE THAT ALL ILLEGITIMATES IN APPELLANTS'  SUBCLASS WOULD BE UNABLE TO
ESTABLISH THEIR DEPENDENCY AND ELIGIBILITY UNDER THE ACT IF THE STATUTE
GAVE THEM AN OPPORTUNITY TO DO SO.  NOR DOES HE SUGGEST A BASIS FOR THE
ASSUMPTION THAT ALL ILLEGITIMATES WHO ARE STATUTORILY DEEMED ENTITLED
TO BENEFITS UNDER THE ACT ARE IN FACT DEPENDENT UPON THEIR DISABLED
PARENT.  INDEED, AS WE HAVE NOTED, THOSE ILLEGITIMATES STATUTORILY
DEEMED DEPENDENT ARE ENTITLED TO BENEFITS REGARDLESS OF WHETHER THEY
WERE LIVING IN, OR HAD EVER LIVED IN, A DEPENDENT FAMILY SETTING WITH
THEIR DISABLED PARENT.  EVEN IF CHILDREN MIGHT RATIONALLY BE CLASSIFIED
ON THE BASIS OF WHETHER THEY ARE DEPENDENT UPON THEIR DISABLED PARENT,
THE ACT'S DEFINITION OF THESE TWO SUBCLASSES OF ILLEGITIMATES IS
"OVERINCLUSIVE"  IN THAT IT BENEFITS SOME CHILDREN WHO ARE LEGITIMATED,
OR ENTITLED TO INHERIT, OR ILLEGITIMATE SOLELY BECAUSE OF A DEFACT IN
THE MARRIAGE OF THEIR PARENTS, BUT WHO ARE NOT DEPENDENT ON THEIR
DISABLED PARENT.  CONVERSELY, THE ACT IS "UNDERINCLUSIVE" IN THAT IT
CONCLUSIVELY EXCLUDES SOME ILLEGITIMATES IN APPELLANTS' SUBCLASS WHO
ARE, IN FACT, DEPENDENT UPON THEIR DISABLED PARENT.  THUS, FOR ALL THAT
IS SHOWN IN THIS RECORD, THE TWO SUBCLASSES OF ILLEGITIMATES STAND ON
EQUAL FOOTING, AND THE POTENTIAL FOR SPURIOUS CLAIMS IS THE SAME AS TO
BOTH; HENCE TO CONCLUSIVELY DENY ONE SUBCLASS BENEFITS PRESUMPTIVELY
AVAILABLE TO THE OTHER DENIES THE FORMER THE EQUAL PROTECTION OF THE
LAWS GUARANTEED BY THE DUE PROCESS PROVISIONS OF THE FIFTH AMENDMENT. 
SCHNEIDER V. RUSK, 377 U.S. 163, 168 (1964); BOLLING V. SHARPE, 347
U.S. 497, 499 (1954).     IN THE DISTRICT COURT THE SECRETARY, RELYING
ON THE VALIDITY OF THE STATUTORY EXCLUSION, DID NOT UNDERTAKE TO
CHALLENGE THE ASSERTION THAT APPELLANTS ARE THE CHILDREN OF THE
CLAIMANT, THAT THEY LIVED WITH THE CLAIMANT ALL THEIR LIVES, THAT HE
HAS FORMALLY ACKNOWLEDGED THEM TO BE HIS CHILDREN, AND THAT HE HAS
SUPPORTED AND CARED FOR THEM SINCE THEIR BIRTH.  ACCORDINGLY, THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED TO PROVIDE APPELLANTS AN
OPPORTUNITY, CONSISTENT WITH THIS OPINION, TO ESTABLISH THEIR CLAIM TO
ELIGIBILITY AS "CHILDREN" OF THE CLAIMANT UNDER THE SOCIAL SECURITY
ACT. 

              VACATED AND REMANDED. 

/1/  42 U.S.C. 416 (H) (3). 

/2/  THE CONTESTED SOCIAL SECURITY SCHEME PROVIDES, IN ESSENCE, THAT
LEGITIMATE OR LEGITIMATED CHILDREN (42 U.S.C. 402 (D) (3)),
ILLEGITIMATE CHILDREN WHO CAN INHERIT THEIR PARENT'S PERSONAL PROPERTY
UNDER THE INTESTACY LAWS OF THE STATE OF THE INSURED'S DOMICILE (42
U.S.C. 416 (H) (2) (A)), AND THOSE CHILDREN WHO CANNOT INHERIT ONLY
BECAUSE THEIR PARENTS' CEREMONIAL MARRIAGE WAS INVALID FOR NONOBVIOUS
DEFECTS, (42 U.S.C. 416 (H)(2)(B)), ARE ENTITLED TO RECEIVE BENEFITS
WITHOUT ANY FURTHER SHOWING OF PARENTAL SUPPORT.  HOWEVER, ILLEGITIMATE
CHILDREN SUCH AS EUGENIO AND ALICIA WHO WERE BORN AFTER THEIR FATHER
BECAME ENTITLED TO DISABILITY OR DEATH INSURANCE BENEFITS, AND WHO DO
NOT FALL INTO ONE OF THE FOREGOING CATEGORIES, ARE NOT ENTITLED TO
RECEIVE ANY BENEFITS.  42 U.S.C. 416 (H)(3). 

/3/  SEE HOUSE-SENATE CONFERENCE COMMITTEE REPORT ON 1965 AMENDMENTS
TO SOCIAL SECURITY ACT, 11 CONG. REC 18 387 (1965); REPORT OF THE U.S.
ADVISORY COUNCIL ON SOCIAL SECURITY, THE STATUS OF THE SOCIAL SECURITY
PROGRAM AND RECOMMENDATIONS FOR ITS IMPROVEMENT 67 (1965). 

MR. JUSTICE REHNQUIST, DISSENTING. 

I FRANKLY FIND THE COURT'S OPINION IN THIS CASE A PERPLEXING THREE
LEGGED STOOL.  THE HOLDING IS CLEARLY FOUNDED IN NOTIONS OF EQUAL
PROTECTION, SEE ANTE, AT 637, AND THE COURT SPEAKS SPECIFICALLY OF
IMPROPER " DISCRIMINATION."  YET THE OPINION HAS STRONG DUE PROCESS
OVERTONES AS WELL, AT TIMES APPEARING TO PAY HOMAGE TO THE STILL NOVEL,
AND I THINK UNSUPPORTABLE, THEORY THAT "IRREBUTTABLE PRESUMPTIONS"
VIOLATE DUE PROCESS.  AT OTHER TIMES THE OPINION SEEMS TO SUGGEST THAT
THE REAL PROBLEM IN THIS CASE IS THE GOVERNMENT'S FAILURE TO BUILD AN
ADEQUATE EVIDENTIARY RECORD IN SUPPORT OF THE CHALLENGED LEGISLATION. 
THE RESULT IS A RATHER IMPRESSIONISTIC DETERMINATION THAT CONGRESS'
EFFORTS TO COPE WITH SPURIOUS CLAIMS OF ENTITLEMENT, WHILE PRESERVING
MAXIMUM BENEFITS FOR THOSE PERSONS MOST LIKELY TO BE DESERVING, ARE
SIMPLY NOT SATISFACTORY TO THE MEMBERS OF THIS COURT.  I AGREE WITH
NEITHER THE COURT'S APPROACH NOR ITS DECISION. 

THE COURT'S EQUAL PROTECTION ANALYSIS IS PERHAPS MOST DIFFICULT TO
UNDERSTAND.  THE COURT APPARENTLY FINDS NO NEED TO RESOLVE THE QUESTION
OF WHETHER ILLEGITIMACY CONSTITUTES A "SUSPECT CLASSIFICATION," NOTING
INSTEAD THAT "'THE EQUAL PROTECTION CLAUSE DOES ENABLE US TO STRIKE
DOWN DISCRIMINATORY LAWS RELATING TO STATUS OF BIRTH WHERE . . . THE
CLASSIFICATION IS JUSTIFIED BY NO LEGITIMATE STATE INTEREST, COMPELLING
OR OTHERWISE.'  (WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164,
176 (1972).)"  ANTE, AT 632.  THIS STATEMENT MIGHT BE THOUGHT TO SET
THE STAGE FOR A DECISION STRIKING DOWN THE LEGISLATING ON THE BASIS OF
DISCRIMINATION BETWEEN LEGITIMATES AND ILLEGITIMATES.  BUT THE COURT
THEN LEAVES THAT ISSUE, FINDING INSTEAD THAT THE STATUTE IS
UNCONSTITUTIONAL BECAUSE IT "DISCRIMINATE (S) BETWEEN THE TWO
SUBCLASSES OF AFTERBORN ILLEGITIMATES WITHOUT ANY BASIS FOR THE
DISTINCTION . . . ."  ANTE, AT 636.  WHATEVER MAY BE THE RATIONALE FOR
GIVING SOME FORM OF STRICTER SCRUTINY TO CLASSIFICATIONS BETWEEN
LEGITIMATES AND ILLEGITIMATES, THAT RATIONALE SIMPLY VANISHES WHEN THE
ALLEGED DISCRIMINATION IS BETWEEN CLASSES OF ILLEGITIMATES.  SUCH
CLASSIFICATIONS SHOULD INSTEAD BE EVALUATED ACCORDING TO THE
TRADITIONAL PRINCIPLE SET FORTH IN DANDRIDGE V. WILLIAMS, 397 U.S.471
(1970): "IF THE CLASSIFICATION HAS SOME 'REASONABLE BASIS,' IT DOES NOT
OFFEND THE CONSTITUTION SIMPLY BECAUSE THE CLASSIFICATION 'IS NOT MADE
WITH MATHEMATICAL NICETY OR BECAUSE IN PRACTICE IT RESULTS IN SOME
INEQUALITY.'"  ID., AT 485.  (CITATION OMITTED.) 

THE COURT'S REJECTION OF THIS PRINCIPLE STRONGLY SMACKS OF DUE
PROCESS RATHER THAN EQUAL PROTECTION CONCEPTS.  THE COURT STATES THAT
"(ASSUMING . . . APPELLANTS ARE IN FACT DEPENDENT ON THE CLAIMANT, IT
WOULD NOT SERVE THE PURPOSE OF THE ACT TO CONCLUSIVELY DENY THEM AN
OPPORTUNITY TO ESTABLISH THEIR DEPENDENCY AND THEIR RIGHT TO INSURANCE
BENEFITS," ANTE, AT 636, AND INDICATES THAT THE REAL PROBLEM WITH THE
LEGISLATION IS THAT IT IS BOTH "OVERINCLUSIVE" AND "UNDERINCLUSIVE." 
ACCORDING TO THE COURT, THE LEGISLATION CANNOT STAND BECAUSE "SOME
CHILDREN"  ENTITLED TO BENEFITS "ARE NOT DEPENDENT ON THEIR DISABLED
PARENT" AND BECAUSE "SOME ILLEGITIMATES" WHO DO NOT GET BENEFITS "ARE,
IN FACT, DEPENDENT UPON THEIR DISABLED PARENT."  ANTE, AT 637.  IN MY
VIEW THIS IS SIMPLY AN ATTACK ON "IRREBUTTABLE PRESUMPTIONS" IN ANOTHER
GUISE.  SEE CLEVELAND BOARD OF EDUCATION V. LAFLEUR, 414 U.S. 632
(1974).  THE VERY PROCESS OF MAKING LEGISLATIVE DECISIONS TO GOVERN
SOCIETY AS A WHOLE MEANS THAT SOME INDIVIDUALS WILL BE TREATED LESS
FAVORABLY THAT OTHER INDIVIDUALS WHO FALL WITHIN A DIFFERENT
LEGISLATIVE CLASSIFICATION.  AS THE CHIEF JUSTICE STATED ONLY LAST TERM
IN VLANDIS V. KLINE, 412 U.S. 411, 462 (1973) (DISSENTING OPINION):
"(LITERALLY THOUSANDS OF STATE STATUTES CREATE CLASSIFICATIONS
PERMANENT IN DURATION, WHICH ARE LESS THAN PERFECT, AS ALL LEGISLATIVE
CLASSIFICATIONS ARE, AND MIGHT BE IMPROVED ON BY INDIVIDUALIZED
DETERMINATIONS . . ."  THIS COURT SHOULD NOT INVALIDATE SUCH
CLASSIFICATIONS SIMPLY OUT OF A PREFERENCE FOR DIFFERENT
CALSSIFICATIONS OR BECAUSE AN UNWORKABLE SYSTEM OF INDIVIDUALIZED
CONSIDERATION WOULD THEORETICALLY BE MORE PERFECT. 

THERE ARE ALSO HINTS IN THE OPINION THAT THE GOVERNMENT FAILED TO
BUILD AN ADEQUATE EVIDENTIARY RECORD IN SUPPORT OF THE CHALLENGED
CLASSIFICATIONS.  THUS THE COURT DISTINGUISHES DANDRIDGE V. WILLIAMS,
SUPRA, A CASE IN WHICH THE COURT RESPECTED THE STAT'S ALLOCATION OF
LIMITED RESOURCES, BY SAYING: "HERE, BY CONTRAST, THERE IS NO EVIDENCE
SUPPORTING THE CLASSIFICATION OF APPELLANTS TO RECEIVE BENEFITS WOULD
SIGNIFICANTLY IMPAIR THE FEDERAL SOCIAL SECURITY TRUST FUND AND
NECESSITATE A REDUCTION IN THE SCOPE OF PERSONS BENEFITED BY THE ACT." 
ANTE, AT 633.  I SHOULD THINK IT OBVIOUS THAT ANY INCREASE IN THE
NUMBER OF ELIGIBLE RECIPIENTS WOULD SERVE TO ADDITIONALLY DEPLETE A
FIXED FUND, BUT I FIND EVEN STRANGER THE NOTION THAT THE GOVERNMENT
MUST PRESENT EVIDENCE TO JUSTIFY EACH AND EVERY CLASSIFICATION THAT A
LEGISLATURE CHOSSES TO MAKE.  IF I READ THE COURT'S OPINION CORRECTLY,
IT WOULD SEEM TO REQUIRE, FOR EXAMPLE, THAT THE GOVERNMENT COMPILE
EVIDENCE TO SUPPORT CONGRESS' DETERMINATION THAT SOCIAL SECURITY
BENEFITS BEGIN AT A SPECIFIED AGE, PERHAPS EVEN REQUIRING STATISTICS TO
SHOW THAT NEED IS GREATER (IN ALL CASES?)  AT THAT AGE THAN AT LESSER
AGES.  THIS PROPOSITION IS CERTAINLY FAR REMOVED FROM TRADITIONAL
PRINCIPLES OF DEFERENCE TO LEGISLATIVE JUDGMENT.  AS WE STARTED IN
MCGOWAN V. MARYLAND, 366 U.S. 420, 426 (1961): "A STATUTORY
DISCRIMINATION WILL NOT BE SET ASIDE IF ANY STATE OF FACTS REASONABLY
MAY BE CONCEIVED TO JUSTIFY IT."  THERE IS NOTHIN IN THAT LANGUAGE THAT
SUGGESTS TO ME THAT COURTROOMS SHOULD BECOME FORUMS FOR A SECOND ROUND
OF LEGISLATIVE HEARINGS WHENEVER A LEGISLATIVE DETERMINATION IS LATER
CHALLENGED. 

SINCE I BELIEVE THAT THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE
CLASSIFICATIONS AT ISSUE REST UPON A RATIONAL BASIS, I DISSENT. 

JANE G. STEVENS ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANTS. 

DANNY J. BOGGS ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL BORK, ACTING ASSISTANT ATTORNEY GENERAL JAFFE,
AND WILLIAM DANTER. 
..END :























KOKOSZKA V. BELFORD, 417 U.S. 642 


       KOKOSZKA V. BELFORD, TRUSTEE IN BANKRUPTCY

  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 73 - 5265.  ARGUED APRIL 22, 1974__ DECIDED JUNE 19,

           1974; (479 F. 2D 990, AFFIRMED.) 


    1.  AN INCOME TAX REFUND IS "PROPERTY" THAT PASSES TO THE

  TRUSTEE UNDER 70A (5) OF THE BANKRUPTCY ACT, BEING "SUFFICIENTLY

  ROOTED IN THE BANKRUPTCY PAST," AND NOT BEING RELATED

  CONCEPTUALLY TO FUTURE WAGES FOR THE PURPOSE OF GIVING THE

  BANKRUPT WAGE EARNER A "FRESH START."  LINES V. FREDERICK, 400

  U.S. 18, DISTINGUISHED.  PP. 645 - 648. 

     2.  THE PROVISION IN THE CONSUMER CREDIT PROTECTION ACT

  LIMITING WAGE GARNISHMENT TO NO MORE THAN 25% OF A PERSON'S

  AGGREGATE "DISPOSABLE EARNINGS" FOR ANY PAY PERIOD DOES NOT APPLY

  TO A TAX REFUND, SINCE THE STATUTORY TERMS "EARNINGS" AND

  "DISPOSABLE EARNINGS" ARE CONFINED TO PERIODIC PAYMENTS OF

  COMPENSATION AND DO NOT PERTAIN TO EVERY ASSET THAT IS TRACEABLE

  IN SOME WAY TO SUCH COMPENSATION.  HENCE, THE ACT DOES NOT LIMIT

  THE BANKRUPTCY TRUSTEE'S RIGHT TO TREAT THE TAX REFUND AS

  PROPERTY OF THE BANKRUPT'S ESTATE PP. 648 - 652.  BURGER, C. J.,

DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO RESOLVE THE CONFLICT AMONG THE
COURTS OF APPEALS ON THE QUESTIONS OF WHETHER AN INCOME TAX REFUND IS
"PROPERTY" UNDER 70A (5) OF THE BANKRUPTCY ACT /1/  AND WHETHER,
ASSUMING THAT ALL OR PART OF SUCH TAX REFUND IS PROPERTY WHICH PASSES
TO THE TRUSTEE, THE CONSUMER CREDIT PROTECTION ACT'S /2/  LIMITATION ON
WAGE GARNISHMENT SERVES TO EXEMPT 75% OF THE REFUND FROM THE
JURISDICTION OF THE TRUSTEE.  /3/ 

THE PETITIONER WAS EMPLOYED FOR THE FIRST THREE MONTHS OF 1971.  HE
WAS THEN UNEMPLOYED FROM APRIL 1971 UNTIL LATE IN DECEMBER OF THAT
YEAR.  HE WAS RE-EMPLOYED FOR ABOUT THE LAST WEEK AND A HALF OF
DECEMBER 1971.  WHILE EMPLOYED, PETITIONER CLAIMED TWO EXEMPTIONS FOR
FEDERAL INCOME TAX PURPOSES, THE MAXIMUM NUMBER OF DEDUCTIONS TO WHICH
HE WAS ENTITLED, AND HIS EMPLOYER WITHHELD THE APPROPRIATE PORTION OF
HIS WAGES.  26 U.S.C. 3402.  DURING THE YEAR 1971, PETITIONER HAD A
GROSS INCOME OF $2,322. 

ON JANUARY 5, 1972, PETITIONER FILED A VOLUNTARY PETITION IN
BANKRUPTCY.  WITH THE EXCEPTION OF A 1962 CORVAIR AUTOMOBILE WHICH THE
TRUSTEE ABANDONED AS AN ASSET UPON THE BANKRUPT'S PAYMENT OF $25, THE
SOLE ASSET CLAIMED BY THE TRUSTEE IN BANKRUPTCY WAS AN INCOME TAX
REFUND ENTITLEMENT FOR $250.90.  ON FEBRUARY 3, 1972, THE REFEREE IN
BANKRUPTCY ENTERED AN EX PARTE ORDER DIRECTING PETITIONER TO TURN THE
REFUND OVER TO THE TRUSTEE UPON ITS RECEIPT.  THE BANKRUPT MOVED TO
VACATE THAT ORDER AND, AFTER A HEARING, THE REFEREE DENIED THE MOTION. 
IN MID-FEBRUARY 1972, PETITIONER FILED HIS INCOME TAX RETURN FOR THE
CALENDAR YEAR 1971.  SEVERAL WEEKS LATER, HE RECEIVED HIS REFUND CHECK
FROM THE INTERNAL REVENUE SERVICE.  UPON ITS RECEIPT, PETITIONER
COMPLIED WITH THE ORDER OF THE TRUSTEE BUT FILED A PETITION FOR REVIEW
OF THE REFEREE'S DECISION IN THE UNITED STATES DISTRICT COURT.  /4/
THE DISTRICT COURT DENIED RELIEF.  PETITIONER WAS GRANTED LEAVE TO
APPEAL.  /5/  ON MAY 18, 1973, THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT AFFIRMED THE ORDER OF THE DISTRICT COURT, HOLDING
THAT THE TAX REFUND WAS PROPERTY WITHIN THE MEANING OF 70A (5) OF THE
BANKRUPTCY ACT AND THAT IT THEREFORE VESTED IN THE TRUSTEE.  THE COURT
FURTHER HELD THAT THE LIMITATIONS ON GARNISHMENT CONTAINED IN THE
CONSUMER CREDIT PROTECTION ACT DID NOT APPLY TO BANKRUPTCY SITUATIONS
AND THAT, CONSEQUENTLY, THE TRUSTEE WAS ENTITLED TO THE ENTIRE REFUND. 
PETITIONER SEEKS REVIEW OF THESE QUESTIONS HERE. 

        (1) 

WE TURN FIRST TO THE QUESTION OF WHETHER PETITIONER'S INCOME TAX
REFUND WAS "PROPERTY" WITHIN THE MEANING OF 70A (5) OF THE BANKRUPTCY
ACT.  THE TERM HAS NEVER BEEN GIVEN A PRECISE OR UNIVERSAL DEFINITION. 
ON AN EARLIER OCCASION, IN SEGAL V. ROCHELLE, 382 U.S. 375 (1966), THE
COURT NOTED THAT "' (IT IS IMPOSSIBLE TO GIVE ANY CATEGORICAL
DEFINITION TO THE WORD "PROPERTY," NOR CAN WE ATTACH TO IT IN CERTAIN
RELATIONS THE LIMITATIONS WHICH WOULD BE ATTACHED TO IT IN OTHERS.'" 
ID., AT 379, QUOTING FISHER V. CUSHMAN, 103 F. 860, 864 (CA1 1900), IN
DETERMINING THE TERM'S SCOPE--AND ITS LIMITATIONS--THE PURPOSES OF THE
BANKRUPTCY "MUST ULTIMATELY GOVERN."  382 U.S., AT 379.  SEE ALSO LINES
V. FREDERICK, 400 U.S. 18 (1970); LOCAL LOAN CO. V. HUNT, 292 U.S. 234
(1934). 

IN APPLYING THESE GENERAL CONSIDERATIONS TO THE PRESENT SITUATION,
THERE ARE SOME GUIDELINES.  IN BURLINGHAM V. CROUSE, 228 U.S. 459
(1913), FOR EXAMPLE, THE COURT STATED: 

"IT IS THE TWOFOLD PURPOSE OF THE BANKRUPT ACT TO CONVERT THE ESTATE
OF THE BANKRUPT INTO CASH AND DISTRIBUTE IT AMONG CREDITORS AND THEN TO
GIVE THE BANKRUPT A FRESH START WITH SUCH EXEMPTIONS AND RIGHTS AS THE
STATUTE LEFT UNTOUCHED."  ID., AT 473.  SEE ALSO WETMORE V. MARKOE, 196
U.S. 68, 77 (1904); WILLIAMS V. U.S. FIDELITY CO., 236 U.S. 549, 554 -
555 (1915); STELLWAGEN V. CLUM, 245 U.S. 605, 617 (1918).  ON TWO
RATHER RECENT OCCASIONS, THE COURT HAS APPLIED THESE GENERAL PRINCIPLES
TO THE PRECISE STATUTORY SECTION AND TO THE PRECISE TERM AT ISSUE
HERE.  IN SEGAL V. ROCHELLE, SUPRA, THE COURT SAID: 

     "THE MAIN THRUST OF 70A (5) IS TO SECURE FOR CREDITORS

  EVERYTHING OF VALUE THE BANKRUPT ANY POSSESS IN ALIENABLE OR

  LEVIABLE FORM WHEN HE FILES HIS PETITION.  TO THIS END THE TERM

  'PROPERTY' HAS BEEN CONSTRUED MOST GENEROUSLY AND AN INTEREST IS

  NOT OUTSIDE ITS REACH BECAUSE IT IS NOVEL OR CONTINGENT OR

  BECAUSE INJOYMENT MUST BE POSTPONED."  382 U.S., AT 379. 

AT THE SAME TIME, THE COURT NOTED THAT THIS CONSTRUCTION MUST BE
TEMPERED BY THE INTENT OF CONGRESS "TO LEAVE THE BANKRUPT FREE AFTER
THE DATE OF HIS PETITION TO ACCUMULATE NEW WEALTH IN THE FUTURE,"
IBID., AND THUS "MAKE AN UNENCUMBERED FRESH START," ID., AT 380. 
SEVERAL YEARS LATER, IN LINES V. FREDERICK, SUPRA, THESE SAME
CONSIDERATIONS WERE REPEATED IN ALMOST IDENTICAL LANGUAGE.  400 U.S.,
AT 19.  SEGAL AND LINES, WHILE CONSTRUING 70A (5) IN ALMOST IDENTICAL
LANGUAGE, REACHED CONTRARY RESULTS.  IN EACH CASE, THE COURT FOUND THE
CRUCIAL ANALYTICAL KEY NOT IN AN ABSTRACT ARTICULATION OF THE STATUTE'S
PURPOSE, BUT IN AN ANALYSIS OF THE NATURE OF THE ASSET INVOLVED IN
LIGHT OF THOSE PRINCIPLES. 

IN SEGAL, SUPRA, THIS COURT HELD THAT A BUSINESS-GENERATED LOSS
CARRYBACK TAX REFUND--WHICH WAS BASED ON PREBANKRUPTCY LOSSES BUT
RECEIVED AFTER BANKRUPTCY--SHOULD PASS TO THE TRUSTEE AS 70A (5)
PROPERTY.  BALANCING THE DUAL PURPOSE OF THE BANKRUPTCY ACT, SEE
BURLINGHAM V. CROUSE, SUPRA, THE COURT CONCLUDED THAT THE REFUND WAS
"SUFFICIENTLY ROOTED IN THE PREBANKRUPTCY PAST AND SO LITTLE ENTANGLED
WITH THE BANKRUPTS'S ABILITY TO MAKE AN UNENCUMBERED FRESH START THAT
IT SHOULD BE REGARDED AS 'PROPERTY' UNDER 70A (5)," 382 U.S., AT 380. 
THE COURT NOTED THAT "THE BANKRUPTCY AND INJURY TO THE CREDITORS," ID.,
AT 378, AND THAT PASSING THE CLAIM TO THE TRUSTEE DID NOT IMPEDE A
"FRESH START."  ON THE CONTRARY, A BANKRUPT "WITHOUT A REFUND CLAIM TO
PRESERVE HAS MORE REASON TO EARN INCOME RATHER THAN LESS."  ID., AT
380. 

IN LINES, SUPRA, ON THE OTHER HAND, THE COURT HELD THAT VACATION
PAY, ACCRUED PRIOR TO THE DATE OF FILING AND COLLECTIBLE EITHER DURING
THE PLANT'S ANNUAL SHUTDOWN FOR VACATION OR ON THE FINAL TERMINATION OF
EMPLOYMENT, DOES NOT PASS TO THE TRUSTEE AS 70A (5) PROPERTY.  AS IN
SEGAL, SUPRA, THE ANALYZED THE NATURE OF THE ASSET IN THE LIGHT OF THE
DUAL PURPOSES OF THE BANKRUPTCY ACT.  IT CONCLUDED THAT SUCH VACATION
PAY WAS CLOSELY TIED TO THE BANKRUPT'S OPPORTUNITY TO HAVE A "'CLEAR
FIELD FOR FUTURE EFFORT, UNHAMPERED BY THE PRESSURE AND DISCOURAGEMENT
OF PREEXISTING DEBT.'"  400 U.S., AT 20, QUOTING LOCAL LOAN CO. V.
HUNT, SUPRA, AT 244. 

THE INCOME TAX REFUND AT ISSUE IN THE PRESENT CASE DOES NOT RELATE
CONCEPTUALLY TO FUTURE WAGES AND IT IS NOT THE EQUIVALENT OF FUTURE
WAGES FOR THE PURPOSE OF GIVING THE BANKRUPT A "FRESH START."  THE TAX
PAYMENTS REFUNDED HERE WERE INCOME TAX PAYMENTS WITHHELD FROM THE
PETITIONER PRIOR TO HIS FILING FOR BANKRUPTCY AND ARE BASED ON EARNINGS
PRIOR TO THAT FILING.  RELYING ON LINES, HOWEVER, PETITIONER CONTENDS
THAT THE REFUND IS NECESSARY FOR A "FRESH START" SINCE IT IS SOLELY
DERIVED FROM WAGES.  IN LINES, WE DESCRIBED WAGES AS "'A SPECIALIZED
TYPE OF PROPERTY PRESENTING DISTINCT PROBLEMS IN OUR ECONOMIC SYSTEM'"
/6/  SINCE THEY PROVIDE THE BASIC MEANS FOR THE "ECONOMIC SURVIVAL OF
THE DEBTOR."  400 U.S., AT 20 

PETITIONER IS CORRECT IN ARGUING THAT THIS TAX REFUND AND THE VACATION
PAY IN LINES SHARE THE COMMON CHARACTERISTIC OF BEING "WAGE BASED."  IT
IS ALSO TRUE, HOWEVER, THAT ONLY THE VACATION PAY IN LINES WAS DESIGNED
TO FUNCTION AS A WAGE SUBSTITUTE AT SOME FUTURE PERIOD AND, DURING THAT
FUTURE PERIOD, TO "SUPPORT THE BASIC REQUIREMENTS OF LIFE FOR (THE
DEBTORS) AND THEIR FAMILIES . . . ."  IBID.  THIS DISTINCTION IS
CRUCIAL.  AS THE COURT OF APPEALS NOTED, SINCE A "TAX REFUND IS NOT THE
WEEKLY OR OTHER PERIODIC INCOME REQUIRED BY A WAGE EARNER FOR HIS BASIC
SUPPORT, TO DEPRIVE HIM OF IT WILL NOT HINDER HIS ABILITY TO MAKE A
FRESH START UNHAMPERED BY THE PRESSURE OF PREEXISTING DEBT," 479 F.2D
990, 995 (CA2 1973).  "JUST BECAUSE SOME PROPERTY INTEREST HAD ITS
SOURCE IN WAGES . . . DOES NOT GIVE IT SPECIAL PROTECTION, FOR TO DO SO
WOULD EXEMPT FROM THE BANKRUPTS, ESTATE MOST OF THE PROPERTY OWNED BY
MANY BANKRUPTS, SUCH AS SAVINGS ACCOUNTS AND AUTOMOBILES WHICH HAD
THEIR ORIGIN IN WAGES."  IBID. 

WE CONCLUDE, THEREFORE, THAT THE COURT OF APPEALS CORRECTLY HELD
THAT THE INCOME TAX REFUND IS "SUFFICIENTLY ROOTED IN THE PREBANKRUPTCY
PAST"  /7/  TO BE DEFINED AS "PROPERTY"  UNDER 70A (5). 

        (2) 

OUR DISPOSITION OF THE FIRST ISSUE REQUIRES THAT WE TURN NEXT TO THE
PETITIONER'S CONTENTION THAT 75% OF THE REFUND IS EXEMPT UNDER THE
PROVISIONS OF THE CONSUMER CREDIT PROTECTION ACT.  THE ACT PROVIDES
THAT NO MORE THAN 25% OF A PERSON'S AGGREGATE DISPOSABLE EARNINGS /8/
FOR ANY WORKWEEK OR OTHER PAY PERIOD MAY BE SUBJECT TO GARNISHMENT.  A
TRUSTEE IN BANKRUPTCY TAKES TITLE TO THE BANKRUPT'S PROPERTY "EXCEPT
INSOFAR AS IT IS TO PROPERTY WHICH IS HELD TO BE EXEMPT . . . ." 
BANKRUPTCY ACT, 70A, 11 U.S.C. 110 (A).  ANOTHER SECTION PROVIDES THAT
THE ACT "SHALL NOT AFFECT THE ALLOWANCE TO BANKRUPTS OF THE EXEMPTIONS
WHICH ARE PRESCRIBED BY THE LAWS OF THE UNITED STATES . . . ." 
BANKRUPTCY ACT 6, 11 U.S.C. 24.  PETITIONER ARGUES THAT THE CONSUMER
CREDIT PROTECTION ACT'S RESTRICTIONS ON GARNISHMENT, 15 U.S.C. 1671 ET
SEQ., ARE SUCH AN EXEMPTION.  IN ESSENCE, THE PETITIONER'S POSITION IS
THAT A TAX REFUND, HAVING ITS SOURCE IN WAGES AND BEING COMPLETELY
AVAILABLE TO THE TAXPAYER UPON ITS REUTRN WITHOUT ANY FURTHER
DEDUCTION, IS DISPOSABLE EARNINGS" WITHIN THE MEANING OF THE STATUTE. 
15 U.S.C. 1672 (B).  HE FURTHER ARGUES THAT THE TAKING OF CUSTODY BY
THE TRUSTEE IS A "GARNISHMENT SINCE A BANKRUPTCY PROCEEDING IS A "LEGAL
OR EQUITABLE PROCEDURE THROUGH WHICH THE EARNINGS OF ANY INDIVIDUAL ARE
REQUIRED TO BE WITHHELD FOR PAYMENT OF ANY DEBT."  1672 (C). 

THE CONGRESS DID NOT ENACT THE CONSUMER CREDIT PROTECTION ACT IN A
VACUUM.  THE DRAFTERS OF THE STATUTE WERE WELL AWARE THAT THE
PROVISIONS AND THE PURPOSES OF THE BANKRUPTCY ACT AND THE NEW
LEGISLATION WOULD HAVE TO CO-EXIST.  INDEED, THAT ACT EXPLICITLY RESTS
ON BOTH THE BANKRUPTCY AND COMMERCE POWERS OF THE CONGRESS.  15 U.S.C.
1671 (B).  WE MUST THEREFORE TAKE INTO CONSIDERATION THE LANGUAGE AND
PURPOSE OF BOTH THE BANKRUPTCY ACT AND THE CONSUMER CREDIT PROTECTION
ACT IN ASSESSING THE VALIDITY OF THE PETITIONER'S ARGUMENT.  WHEN
"INTERPRETING A STATUTE, THE COURT WILL NOT LOOK MERELY TO A PARTICULAR
CLAUSE IN WHICH GENERAL WORDS MAY BE USED, BUT WILL TAKE IN CONNECTION
WITH IT THE WHOLE STATUTE (OR STATUTES ON THE SAME SUBJECT) AND THE
OBJECTS AND POLICY OF THE LAW, AS INDICATED BY ITS VARIOUS PROVISIONS,
AND GIVE TO IT SUCH A CONSTRUCTION AS WILL CARRY INTO EXECUTION THE
WILL OF THE LEGISLATURE.  . . ."BROWN V. DUCHESNE, 19 HOW.  183, 194
(1857). 

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE CONSUMER PROTECTION
ACT MAKES IT CLEAR THAT, WHILE IT WAS ENACTED AGAINST THE BACKGROUND OF
THE BANKRUPTCY ACT, IT WAS NOT INTENDED TO ALTER THE CLEAR PURPOSE OF
THE LATTER ACT TO ASSEMBLE, ONCE A BANKRUPTCY PETITION IS FILED, ALL OF
THE DEBTOR'S ASSETS FOR THE BENEFIT OF HIS CREDITORS.  SEE, E.G., SEGAL
V. ROCHELLE, 382 U.S. 375 (1966).  INDEED, CONGRESS' CONCERN WAS NOT
THE ADMINISTRATION OF A BANKRUPT'S ESTATE BUT THE PREVENTION OF
BANKRUPTCY IN THE FIRST PLACE BY ELIMINATING "AN ESSENTIAL ELEMENT IN
THE PREDATORY EXTENSION OF CREDIT RESULTING IN A DISRUPTION OF
EMPLOYMENT, PRODUCTION, AS WELL AS CONSUMPTION"  /9/  AND A CONSEQUENT
INCREASE IN PERSONAL BANKRUPTCIES.  NOTING THAT THE EVIDENCE BEFORE THE
COMMITTEE "CLEARLY ESTABLISHED A CAUSAL CONNECTION BETWEEN HARSH
GARNISHMENT LAWS AND HIGH LEVELS OF PERSONAL BANKRUPTCIES,"  /10/ THE
HOUSE REPORT CONCLUDED: 

     "THE LIMITATIONS ON THE GARNISHMENT OF WAGES ADOPTED BY YOUR

  COMMITTEE, WHILE PERMITTING THE CONTINUED ORDERLY PAYMENT OF

  CONSUMER DEBTS, WILL RELIEVE COUNTLESS HONEST DEBTORS DRIVEN BY

  ECONOMIC DESPERATION FROM PLUNGING INTO BANKRUPTCY IN ORDER TO

PRESERVE THEIR EMPLOYMENT AND INSURE A CONTINUED MEANS OF SUPPORT

  FOR THEMSELVES AND THEIR FAMILIES."  H.R. REP. NO. 1040, 90TH

  CONG., 1ST SESS., 21 (1967). 

SEE ALSO ID., AT 7.  IN SHORT, THE CONSUMER CREDIT PROTECTION ACT
SOUGHT TO PREVENT CONSUMERS FROM ENTERING BANKRUPTCY IN THE FIRST
PLACE.  HOWEVER, IF DESPITE ITS PROTECTION, BANKRUPTCY DID OCCUR, THE
DEBTOR'S PROTECTION AND REMEDY REMAINED UNDER THE BANKRUPTCY ACT. 

THE COURT OF APPEALS HELD THAT THE TERMS "EARNINGS"  AND "DISPOSABLE
EARNINGS," AS USED IN 15 U.S.C. 1672, 1673, DID NOT INCLUDE A TAX
REFUND, BUT WERE LIMITED TO "PERIODIC PAYMENTS OF COMPENSATION AND (DO)
NOT PERTAIN TO EVERY ASSET THAT IS TRACEABLE IN SOME WAY TO SUCH
COMPENSATION."  479 F. 2D, AT 997.  THIS VIEW IS FULLY SUPPORTED BY THE
LEGISLATIVE HISTORY.  THERE IS EVERY INDICATION THAT CONGRESS, IN AN
EFFORT TO AVOID THE NECESSITY OF BANKRUPTCY, SOUGHT TO REGULATE
GARNISHMENT IN ITS USUAL SENSE AS A LEVY ON PERIODIC PAYMENTS OF
COMPENSATION NEEDED TO SUPPORT THE WAGE EARNER AND HIS FAMILY ON A WEEK
TO-WEEK, MONTH-TO-MONTH BASIS.  THERE IS NO INDICATION, HOWEVER, THAT
CONGRESS INTENDED DRASTICALLY TO ALTER THE DELICATE BALANCE OF A
DEBTOR'S PROTECTIONS AND OBLIGATIONS DURING THE BANKRUPTCY PROCEDURE. 
/11/  WE THEREFORE AGREE WITH THE COURT OF APPEALS THAT THE CONSUMER
CREDIT PROTECTION ACT DOES NOT RESTRICT THE RIGHT OF THE TRUSTEE TO
TREAT THE INCOME TAX REFUND AS PROPERTY OF THE BANKRUPT'S ESTATE. 
ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 
     IT IS SO REDERED. 

/1/  THE PERTINENT PARTS OF 70A (5) OF THE BANKRUPTCY ACT, 11 U.S.C.
110 (A) (5), READ AS FOLLOWS:     "(A) THE TRUSTEE OF THE ESTATE OF A
BANKRUPT . . . SHALL . . . BE VESTED BY OPERATION OF LAW WITH THE TITLE
OF THE BANKRUPT AS OF THE DATE OF THE FILING OF THE PETITION INITIATING
A PROCEEDING UNDER THIS TITLE . . . TO ALL OF THE FOLLOWING KINDS OF
PROPERTY WHEREVER LOCATED . . . (5) PROPERTY, INCLUDING RIGHTS OF
ACTION, WHICH PRIOR TO THE FILING OF THE PETITION HE COULD BY ANY MEANS
HAVE TRANSFERRED OR WHICH MIGHT HAVE BEEN LEVIED UPON AND SOLD UNDER
JUDICIAL PROCESS AGAINST HIM, OR OTHERWISE SEIZED, IMPOUNDED, OR
SEQUESTERED . . . ." 

IT IS UNDISPUTED THAT THE REFUNDS COULD HAVE BEEN TRANSFERRED UNDER
CONNECTICUT LAW AT THE TIME OF THE FILING OF THE PETITION, CF. SEGAL V.
ROCHELLE, 382 U.S. 375, 381 - 385 (1966). 

/2/  82 STAT. 146, 15 U.S.C. 1601 ET SEQ. 

/3/  TITLE 15 U.S.C. 1673 READS, IN PERTINENT PART: 

"(A) MAXIMUM ALLOWABLE GARNISHMENT. 

"EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION AND IN SECTION
1675 OF THIS TITLE, THE MAXIMUM PART OF THE AGGREGATE DISPOSABLE
EARNINGS OF AN INDIVIDUAL FOR ANY WORKWEEK WHICH IS SUBJECTED TO
GARNISHMENT MAY NOT EXCEED 

"(1) 25 PER CENTUM OF HIS DISPOSABLE EARNINGS FOR THAT WEEK, OR 

"(2) THE AMOUNT BY WHICH HIS DISPOSABLE EARNINGS FOR THAT WEEK EXCEED
THIRTY TIMES THE FEDERAL MINIMUM HOURLY WAGE PRESCRIBED BY SECTION 206
(A) (1) OF TITLE 29 IN EFFECT AT THE TIME THE EARNINGS ARE PAYABLE, 

"WHICHEVER IS LESS.  IN THE CASE OF EARNINGS FOR ANY PAY PERIOD
OTHER THAN A WEEK, THE SECRETARY OF LABOR SHALL BY REGULATION PRESCRIBE
A MULTIPLE OF THE FEDERAL MINIMUM HOURLY WAGE EQUIVALENT IN EFFECT THAT
SET FORTH IN PARAGRAPH (2). 

"(B) EXCEPTIONS. 

"THE RESTRICTIONS OF SUBSECTION (A) OF THIS SECTION DO NOT APPLY IN
THE CASE OF 

"(1) ANY ORDER OF ANY COURT FOR THE SUPPORT OF ANY PERSON. 

"(2) ANY ORDER OF ANY COURT OF BANKRUPTCY UNDER CHAPTER XIII OF THE
BANKRUPTCY ACT. 

"(3) ANY DEBT DUE FOR ANY STATE OR FEDERAL TAX. 

"(C) EXECUTION OR ENFORCEMENT OF GARNISHMENT ORDER OR PROCESS
PROHIBITED.  "NO COURT OF THE UNITED STATES OR ANY STATE MAY MAKE,
EXECUTE, OR ENFORCE ANY ORDER OR PROCESS IN VIOLATION OF THIS

/4/  11 U.S.C. 67 (C). 

/5/  47 (A). 

/6/  400 U.S. 18, 20, QUOTING SNIADACH V. FAMILY FINANCE CORP., 395
U.S. 337, 340 (1969). 

/7/  SEGAL V. ROCHELL, 382 U.S., AT 380. 

/8/  TITLE 15 U.S.C. 1672, ENTITLED, "DEFINITIONS," STATES: 

"FOR THE PURPOSE OF THIS SUBCHAPTER: 

"(A) THE TERM 'EARNINGS' MEANS COMPENSATION PAID OR PAYABLE FOR
PERSONAL SERVICES, WHETHER DENOMINATED AS WAGES, SALARY, COMMISSION,
BONUS, OR OTHERWISE, AND INCLUDES PERIODIC PAYMENTS PURSUANT TO A
PENSION OR RETIREMENT PROGRAM. 

"(B) THE TERM 'DISPOSABLE EARNINGS' MEANS THAT PART OF THE EARNINGS
OF ANY INDIVIDUAL REMAINING AFTER THE DEDUCTION FROM THOSE EARNINGS OF
ANY AMOUNTS REQUIRED BY LAW TO BE WITHHELD. 

"(C) THE TERM 'GARNISHMENT' MEANS ANY LEGAL OR EQUITABLE PROCEDURE
THROUGH WHICH THE EARNINGS OF ANY INDIVIDUAL ARE REQUIRED TO BE
WITHHELD FOR PAYMENT OF ANY DEBT." 

/9/  H.R. REP. NO. 1040, 90TH CONG., 1ST SESS., 20 (1967). 

/10/  ID., AT 20 - 21. 

/11/  PETITIONER ARGUES THAT, SINCE CHAPTER XIII OF THE BANKRUPTCY
ACT HAD BEEN EXPLICITLY EXCLUDED FROM THE SCOPE OF THE CONSUMER CREDIT
PROTECTION ACT (SEE 15 U.S.C. 1673 (B)) IT MUST HAVE INTENED TO INCLUDE
THE OTHER PORTIONS OF THE BANKRUPTCY ACT.  CHAPTER XIII PERMITS A WAGE
EARNER TO SATISFY HIS CREDITORS OUT OF FUTURE INCOME UNDER A SUPERVISED
PLAN.  THIS PARTICULAR PROCEDURE RESEMBLES THE NORMAL CREDIT SITUATION
TO WHICH THE CCPA IS DIRECTED MORE THAN OTHER BANKRUPTCY SITUATIONS
AND, FOR THIS REASON, CONGRESS MIGHT WELL HAVE FELT IT NECESSARY TO
ENSURE THAT THE CCPA WAS NOT ENFORCED AT THE EXPENSE OF THE BANKRUPTCY
PROCEDURES. 

THOMAS R. ADAMS ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE JOANNE S. FAULKNER, JOSEPH DEAN GARRISON, JR., FREDERICK W.
DANFORTH, JR., JOHN T. HANSEN, AND MICHAEL H. WEISS. 

BENJAMIN R. CIVILETTI, BY INVITATION OF THE COURT, 415 U.S. 956,
ARGUED THE CAUSE AS AMICUS CURIAE IN SUPPORT OF THE JUDGMENT BELOW. 
WITH HIM ON THE BRIEF WAS HARRY D. SHAPIRO. 
..END :













WARDEN V. MARRERO, 417 U.S. 653 


       WARDEN, LEWISBURG PENITENTIARY V. MARRERO

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 73 - 831.  ARGUED APRIL 29, 1974__DECIDED JUNE 19,
1974;

        (483 F.2D 656, REVERSED.) 


    THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF

  1970, WHICH BECAME EFFECTIVE MAY 1, 1971, MAKES PAROLE UNDER THE

  GENERAL PAROLE STATUTE, 18 U.S.C. 4202, AVAILABLE FOR ALMOST ALL

  NARCOTICS OFFENDERS.  RESPONDENT, WHO HAD BEEN SENTENCED BEFORE

  MAY 1, 1971, AND WAS INELIGIBLE FOR PAROLE UNDER 26 U.S.C. 7237

  (B), WHICH WAS REPEALED BY THE 1970 ACT, SOUGHT HABEAS CORPUS IN

  THE DISTRICT COURT, CLAIMING PAROLE ELIGIBILITY WHEN ONETHIRD OF

HIS SENTENCE HAD BEEN SERVED.  THE DISTRICT COURT DENIED RELIEF

  ON THE GROUND THAT THE PROHIBITION ON PAROLE ELIGIBILITY UNDER 26

  U.S.C. 7237 (B) HAD BEEN PRESERVED BY 1103 (A) OF THE 1970

  STATUTE (WHICH PROVIDES THAT "(PROSECUTIONS" FOR VIOLATIONS

  BEFORE MAY 1, 1971, SHALL NOT BE AFFECTED BY REPEALS OF STATUTORY

  PROVISIONS) AND BY THE GENERAL SAVING CLAUSE, 1 U.S.C. 109 (WHICH

  PROVIDES THAT "(THE REPEAL OF ANY STATUTE SHALL NOT HAVE THE

  EFFECT TO RELEASE OR EXTINGUISH ANY PENALTY, FORFEITURE, OR

  LIABILITY INCURRED UNDER SUCH STATURE . . . ").  THE COURT OF

  APPEALS REVERSED.  HELD: 

     1.  SECTION 1103 (A) OF THE 1970 STATUTE BARS THE BOARD OF

  PAROLE FROM CONSIDERING RESPONDENT FOR PAROLE UNDER 18 U.S.C.

  4202, SINCE PAROLE ELIGIBILITY, AS A PRACTICAL MATTER, IS

  DETERMINED AT THE TIME OF SENTENCING, AND SENTENCING IS A PART OF

  THE CONCEPT OF "PROSECUTION," SAVED BY 1103 (A), BRADLEY V.

  UNITED STATES, 410 U.S. 605.  PP. 657 - 659. 

     2.  THE BOARD OF PAROLE IS ALSO BARRED BY THE GENERAL SAVING

  CLAUSE FROM CONSIDERING RESPONDENT FOR PAROLE, SINCE IT IS CLEAR

THE CONGRESS INTENDED INELIGIBILITY FOR PAROLE IN 7237 (B) TO BE

  TREATED AS PART OF THE OFFENDER'S "PUNISHMENT," AND THEREFORE THE

  PROHIBITION AGAINST THE OFFENDER'S ELIGIBILITY FOR PAROLE UNDER

  18 U.S.C. 4202 IS A "PENALTY, FORFEITURE, OR LIABILITY" UNDER THE

  SAVING CLAUSE.  PP. 659 - 664. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

A NOW-REPEALED STATUTE, 26 U.S.C. 7237 (B), /1/  PROVIDED, INTER
ALIA, THAT CERTAIN NARCOTICS OFFENDERS SENTENCED TO MANDATORY MINIMUM
PRISON TERMS SHOULD BE INELIGIBLE FOR PAROLE UNDER THE GENERAL PAROLE
STATUTE, 18 U.S.C. 4202. 

/2/  SECTION 7237 (B) WAS REPEALED, EFFECTIVE MAY 1, 1971, BY THE
COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970, 84 STAT.
1292, WHICH MAKES PAROLE UNDER 4202 AVAILABLE FOR ALMOST ALL NARCOTICS
OFFENDERS.  THE QUESTION FOR DECISION IN THIS CASE IS WHETHER THE
PAROLE INELIGIBILITY PROVISION OF 26 U.S.C. 7237 (B) SURVIVES THE
REPEALER, SO THAT A NARCOTICS OFFENDER WHO HAS SERVED MORE THAN ONE
THIRD OF A SENTENCE IMPOSED BEFORE MAY 1, 1971, REMAINS INELIGIBLE FOR
PAROLE CONSIDERATION UNDER 18 U.S.C. 4202. 

RESPONDENT WAS CONVICTED OF NARCOTICS OFFENSES AND, AS A SECOND
OFFENDER, WAS SENTENCED BEFORE MAY 1, 1971, TO CONCURRENT TERMS OF 10
YEARS' IMPRISONMENT ON EACH OF TWO COUNTS.  450 F.2D 373, 374 - 375
(CA3 1971).  /3/  ON FEBRUARY 24, 1972, RESPONDENT SOUGHT HABEAS CORPUS
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA CLAIMING THAT, SINCE 26 U.S.C. 7237 (B) HAD BEEN REPEALED,
HE SHOULD BE ELIGIBLE FOR CONSIDERATION FOR PAROLE UNDER 18 U.S.C. 4202
WHEN ONE-THIRD OF HIS SENTENCE HAD BEEN SERVED.  THE DISTRICT COURT, IN
AN UNREPORTED DECISION, DENIED RELIEF ON THE GROUND THAT THE
PROHIBITION ON PAROLE ELIGIBILITY OF 26 U.S.C. 7237 (B) HAD BEEN
PRESERVED BY 1103 (A) OF THE 1970 STATUTE /4/  AND BY 1 U.S.C. 109. 

/5/  SEE ALSO 347 F. SUPP. 99.  THE COURT OF APPEALS FOR THE THIRD
CIRCUIT REVERSED, HOLDING THAT NEITHER 1103 (A) OF THE 1970 STATUTE NOR
1 U.S.C. 109 CONTINUED THE PROHIBITION ON ELIGIBILITY FOR PAROLE
CONSIDERATION IN 26 U.S.C. 7237 (B).  483 F.2D 656 (1973).  /6/  WE
GRANTED CERTIORARI TO RESOLVE A CONFLICT AMONG THE COURTS OF APPEALS. 
/7/  414 U.S. 1128 (1974).  WE AGREE WITH THE DISTRICT COURT AND
REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

BRADLEY V. UNITED STATES, 410 U.S. 605, 611 (1973), EXPRESSLY
RESERVED DECISION OF THE QUESTION NOW BEFORE US.  BRADLEY INVOLVED THE
CONVICTION AND SENTENCING AFTER MAY 1, 1971, OF OFFENDERS WHO COMMITTED
NARCOTICS OFFENSES BEFORE THAT DATE.  WE HELD THAT SENTENCING IS A PART
OF THE CONCEPT OF "PROSECUTION" AND THEREFORE THAT THE PROVISION OF
1103 (A) OF THE 1970 ACT THAT "(PROSECUTIONS FOR ANY VIOLATION OF LAW
OCCURRING (BEFORE MAY, 1, 1971) SHALL NOT BE AFFECTED" BY THE REPEAL OF
26 U.S.C. 7237 (D), BARRED THE SENTENCING JUDGE FROM SUSPENDING THE
SENTENCES OF, OR GRANTING PROBATION TO, THE BRADLEY PETITIONERS AND
ALSO BARRED HIM FROM MAKING THEM ELIGIBLE FOR EARLY PAROLE, BEFORE THEY
HAD SERVED ONE-THIRD OF THEIR SENTENCES, UNDER 18 U.S.C. 4202 (A).  /8/
ALTHOUGH STATING IN A FOOTNOTE THAT "(THE DECISION TO GRANT PAROLE
UNDER (18 U.S.C. 4202 LIES WITH THE BOARD OF PAROLE, NOT WITH THE
DISTRICT JUDGE, AND MUST BE MADE LONG AFTER SENTENCE HAS BEEN ENTERED
AND THE PROSECUTION TERMINATED," WE CONCLUDED THAT "(WHETHER 1103 (A)
OR THE GENERAL SAVING STATUTE, 1 U.S.C. 109, LIMITS THAT DECISION IS A
QUESTION WE CANNOT CONSIDER IN THIS CASE."  410 U.S., AT 611 N. 6. 

        I 

WE HOLD THAT 1103 (A) BARS THE BOARD OF PAROLE FROM CONSIDERING
RESPONDENT FOR PAROLE UNDER 18 U.S.C. 4202.  IN CONCLUDING IN BRADLEY
THAT INELIGIBILITY FOR EARLY PAROLE UNDER 18 U.S.C. 4208 (A) WAS PART
OF THE "PROSECUTION," WE REASONED THAT, SINCE A DISTRICT JUDGE'S
DECISION TO MAKE AN OFFENDER ELIGIBLE FOR EARLY PAROLE IS MADE AT THE
TIME OF ENTERING A JUDGMENT OF CONVICTION, THE DECISION WAS PART OF THE
SENTENCE AND THEREFORE ALSO PART OF THE "PROSECUTION."  410 U.S., AT
611. 

SIMILARLY, A PRAGMATIC VIEW OF SENTENCING REQUIRES THE CONCLUSION
THAT PAROLE ELIGIBILITY UNDER 18 U.S.C. 4202 IS ALSO DETERMINED AT THE
TIME OF SENTENCE.  SINCE, UNDER 4202, AN OFFENDER BECOMES ELIGIBLE FOR
PAROLE AFTER SERVING ONE-THIRD OF HIS SENTENCE, SEE N. 2, SUPRA, PAROLE
ELIGIBILITY IS A FUNCTION OF THE LENGTH OF THE SENTENCE FIXED BY THE
DISTRICT JUDGE.  ALTHOUGH, OF COURSE, THE PRECISE TIME AT WHICH THE
OFFENDER BECOMES ELIGIBLE FOR PAROLE IS NOT PART OF THE SENTENCE, AS IT
IS IN THE CASE OF 4208 (A), IT IS IMPLICIT IN THE TERMS OF THE
SENTENCE.  AND BECAUSE IT COULD NOT BE SERIOUSLY ARGUED THAT SENTENCING
DECISIONS ARE MADE WITHOUT REGARD TO THE PERIOD OF TIME A DEFENDANT
MUST SPEND IN PRISON BEFORE BECOMING ELIGIBLE FOR PAROLE, OR THAT SUCH
DECISIONS WOULD NOT BE DRASTICALLY AFFECTED BY A SUBSTANTIAL CHANGE IN
THE PROPORTION OF THE SENTENCE REQUIRED TO BE SERVED BEFORE BECOMING
ELIGIBLE, PAROLE ELIGIBILITY CAN BE PROPERLY VIEWED AS BEING DETERMINED
-AND DELIBERATELY SO--BY THE SENTENCE OF THE DISTRICT JUDGE. 
ELIGIBILITY FOR PAROLE UNDER 4202 IS THUS DETERMINED AT THE TIME OF
SENTENCING AND, UNDER THE TEACHING OF BRADLEY, IS PART OF THE
"PROSECUTION" SAVED BY 1103 (A). 

WE THEREFORE REJECT RESPONDENT'S ARGUMENT THAT OUR BRADLEY FOOTNOTE
SHOULD BE READ AS HOLDING THAT, BECAUSE THE DECISION TO GRANT PAROLE
UNDER 4202 IS FOR THE BOARD OF PAROLE, NOT THE TRIAL JUDGE, AND IS
ARRIVED AT AFTER THE SENTENCE HAS BEEN ENTERED AND THE PROSECUTION HAS
COME TO AN END, THE PAROLE ELIGIBILITY DECISION IS NOT PART OF THE
"PROSECUTION" FOR PURPOSES OF 1103 (A).  APART FROM THE OBVIOUS ANSWER
THAT THE COURT COULD NOT REASONABLY BE THOUGHT TO HAVE DECIDED IN A
FOOTNOTE A QUESTION "ON WHICH" WE SAID IN THE TEXT, "WE EXPRESS NO
OPINION," 410 U.S., AT 611, RESPONDENT'S RELIANCE UPON THE FOOTNOTE
BOTH PROVES TOO LITTLE AND TOO MUCH.  IT PROVES TOO LITTLE, BECAUSE THE
FACT THAT THE BOARD OF PAROLE, NOT THE SENTENCING JUDGE, FINALLY
DETERMINES WHETHER AND WHEN AN OFFENDER SHOULD BE RELEASED ON PAROLE
DOES NOT UNDERCUT OUR CONCLUSION THAT THE DISTRICT JUDGE, AT THE TIME
OF SENTENCING, DETERMINES WHEN THE OFFENDER WILL BECOME ELIGIBLE FOR
CONSIDERATION FOR PAROLE AND THE BOARD'S ACTION SIMPLY IMPLEMENTS THAT
DETERMINATION.  /9/  IT PROVES TOO MUCH, BECAUSE, IF--AS THE RESPONDENT
WOULD HAVE IT--THE PROPER FOCUS IS UPON THE TIME AT WHICH RELEASE ON
PAROLE IS ACTUALLY GRANTED OR DENIED, THE PAROLE DECISION, WHETHER MADE
UNDER 18 U.S.C. 4208 (A) OR 18 U.S.C. 4202, IS MADE LONG AFTER THE
"PROSECUTION" TERMINATES; FOR UNDER BOTH PROVISIONS, THE BOARD OF
PAROLE ULTIMATELY DECIDES WHETHER AND WHEN THE OFFENDER IS TO BE
RELEASED.  BUT, AS PREVIOUSLY MENTIONED, WE HELD IN BRADLEY THAT THE
DISTRICT JUDGE'S DECISION TO DENY EARLY PAROLE UNDER 4208 (A) WAS PART
OF THE SENTENCE, AND THEREFORE PART OF THE "PROSECUTION." 

        II 

WE HOLD FURTHER THAT THE GENERAL SAVING CLAUSE, 1 U.S.C. 109, ALSO
BARS THE BOARD OF PAROLE FROM CONSIDERING RESPONDENT FOR PAROLE.  /10/ 

CONGRESS ENACTED ITS FIRST GENERAL SAVING PROVISION, C. 71, 16 STAT.
432 (1871), TO ABOLISH THE COMMON-LAW PRESUMPTION THAT THE REPEAL OF A
CRIMINAL STATUTE RESULTED IN THE ABATEMENT OF "ALL PROSECUTIONS WHICH
HAD NOT REACHED FINAL DISPOSITION IN THE HIGHEST COURT AUTHORIZED TO
REVIEW THEM."  BRADLEY V. UNITED STATES, 410 U.S., AT 607; SEE BELL V.
MARYLAND, 378 U.S. 226, 230 (1964).  COMMON-LAW ABATEMENTS RESULTED NOT
ONLY FROM UNEQUIVOCAL STATUTORY REPEALS, BUT ALSO FROM REPEALS AND RE
ENACTMENTS WITH DIFFERENT PENALTIES, WHETHER THE RE-ENACTED LEGISLATION
INCREASED OR DECREASED THE PENALTIES.  SEE BRADLEY V. UNITED STATES,
SUPRA, AT 607 - 608; LINDZEY V. STATE, 65 MISS.  542, 5 SO. 99 (1888);
HARTUNG V. PEOPLE, 22 N. Y. 95 (1860); COMMENT, TODAY'S LAW AND
YESTERDAY'S CRIME: RETROACTIVE APPLICATION OF AMELIORATIVE CRIMINAL
LEGISLATION, 121 U. PA. L. REV. 120, 121 - 126 (1972).  TO AVOID SUCH
ABATEMENTS--OFTEN THE PRODUCT OF LEGISLATIVE INADVERTENCE--CONGRESS
ENACTED 1 U.S.C. 109, THE GENERAL SAVING CLAUSE, WHICH PROVIDES IN
PERTINENT PART THAT (THE REPEAL OF ANY STATUTE SHALL NOT HAVE THE
EFFECT TO RELEASE OR EXTINGUISH ANY PENALTY, FORFEITURE, OR LIABILITY
INCURRED UNDER SUCH STATUTE."  SEE N. 5, SUPRA.  THE DETERMINATIVE
QUESTION IS THUS WHETHER THE PROHIBITION OF 26 U.S.C. 7237 (D) AGAINST
THE OFFENDER'S ELIGIBILITY FOR PAROLE UNDER 18 U.S.C. 4202 IS A
"PENALTY, FORFEITURE, OR LIABILITY"  SAVED FROM RELEASE OR
EXTINGUISHMENT BY 1 U.S.C. 109. 

/11/ 

UNITED STATES V. REISINGER, 128 U.S. 398 (1888), HELD THAT THE
SAVING CLAUSE'S USE OF THE WORDS "PENALTY,"  "LIABILITY," AND
"FORFEITURE" REQUIRED THE CONCLUSION THAT THE CLAUSE COVERED CRIMINAL
STATUTES.  THOSE WORDS, THE COURT FOUND, WERE "USED BY THE GREAT
MASTERS OF CROWN LAW AND THE ELEMENTARY WRITERS AS SYNONMOUS WITH THE
WORD 'PUNISHMENT,' IN CONNECTION WITH CRIMES OF THE HIGHEST GRADE." 
ID., AT 402.  THUS, THE COURT AGREED WITH THE CONSTRUCTION OF THE
CLAUSE BY MR. JUSTICE MILLER, AS CIRCUIT JUSTICE, IN UNITED STATES V.
ULRICI, 28 F. CAS.  328, 329 (NO. 16,594 (1875)), THAT THOSE TERMS
"WERE USED BY CONGRESS TO INCLUDE ALL FORMS OF PUNISHMENT FOR CRIME." 
SEE 128 U.S., AT 402 - 403.  IN CONSEQUENCE, THE SAVING CLAUSE HAS BEEN
HELD TO BAR APPLICATION OF AMELIORATIVE CRIMINAL SENTENCING LAWS
REPEALING HARSHER ONES IN FORCE AT THE TIME OF THE COMMISSION OF AN
OFFENSE.  SEE, E.G., JONES V. UNITED STATES, 117 U.S. APP. D.C. 169,
327 F.2D 867 (1963); UNITED STATES V. KIRBY, 176 F.2D 101 (CA2 1949);
LOVELY V. UNITED STATES, 175 F.2D 312 (CA4 1949). 

ALTHOUGH THE GENERAL SAVING CLAUSE DOES NOT ORDINARILY PRESERVE
DISCARDED REMEDIES OR PROCEDURES, SEE HERTZ V. WOODMAN 218 U.S. 205,
218 (1910); UNITED STATES V. OBERMEIER, 186 F.2D 243, 253 (CA2 1950),
THE LEGISLATIVE HISTORY OF 7237 (B) REVEALS THAT CONGRESS MENAT
INELIGIBILITY FOR PAROLE TO BE TREATED AS PART OF THE "PUNISHMENT"  FOR
THE NARCOTICS OFFENSES FOR WHICH RESPONDENT WAS CONVICTED.  SECTION
7237 (B) WAS ENACTED AS PART OF THE NARCOTIC CONTROL ACT OF 1956.  THE
STATUTE EMBODIED CONGRESSIONAL ACCEPTANCE OF THE APPROACH THAT
EFFECTIVE COMBAT AGAINST THE CONTAGION OF DRUG ADDICTION REQUIRED THE
IMPOSITION OF SEVERE PENALTIES FOR CERTAIN NARCOTICS OFFENSES. 
CONGRESS THEREFORE ENACTED LENGTHY MANDATORY MINIMUM SENTENCES AS A
MEANS OF DECREASING BOTH DRUG ADDICTION AND TRAFFICKING.  SEE, E.G., S.
REP. NO. 1997, 84TH CONG., 2D SESS., 5 (1956); H.R. REP. NO. 2388, 84TH
CONG., 2D SESS., 10 (1956).  BUT CONGRESS BELIEVED THAT LONGER
SENTENCES WOULD NOT ACHIEVE THE DESIRED RESULTS UNLESS THE OFFENDER
REMAINED IMPRISONED FOR HIS FULL TERM. 

     "IN EVALUATING THE EFFECTIVENESS OF THE PRESENTLY PRESCRIBED

  PENALTIES, IT MUST BE RECOGNIZED THAT SPECIAL INCENTIVES IN OUR

  PENAL SYSTEM SERVE TO DECREASE THE ACTUAL TIME SPENT IN A PENAL

  INSTITUTION UNDER A SENTENCE IMPOSED BY A COURT.  THE VIOLATOR IS

  ELIGIBLE FOR PAROLE AFTER SERVING ONE-THIRD OF HIS SENTENCE.  . .

  . AVAILABLE DATA FROM THE BUREAU OF PRISONS INDICATES THAT A

  NARCOTICS VIOLATOR ACTUALLY SERVES AN AVERAGE OF LESS THAN

  TWO-THIRDS OF THE SENTENCE IMPOSED BY THE COURT.  THIS MITIGATION

  OF SENTENCE TENDS TO DEFEAT THE PURPOSES OF (EXISTING

  LEGISLATION) . . . ."  H.R. REP. NO. 2388, AT 10 - 11. 

ACCORDINGLY, CONGRESS EXPRESSLY PROVIDED IN 7237 (B) THAT PAROLE UNDER
18 U.S.C. 4202 WOULD BE UNAVAILABLE FOR NARCOTICS OFFENDERS. 

THERE ARE ADDITIONAL REASONS FOR BELIEVING THAT THE NOPAROLE
PROVISION IS AN ELEMENT OF RESPONDENT'S PUNISHMENT."  FIRST, ONLY AN
UNUSUAL PRISONER COULD BE EXPECTED TO THINK THAT HE WAS NOT SUFFERING A
PENALTY WHEN HE WAS DENIED ELIGIBILITY FOR PAROLE.  SEE UNITED STATES
V. ROSS, 464 F.2D 376, 379 (CA2 1972); UNITED STATES V. DESIMONE, 468
F.2D 1196, 1199 (A2 1972).  FOR THE CONFINED PRISONER, PAROLE--EVEN
WITH ITS LEGAL CONSTRAINTS--IS A LONG STEP TOWARD REGAINING LOST
FREEDOM.  /12/  AN OBSERVATION MADE IN SOMEWHAT DIFFERENT CONTEXT IS
APT: 

"IT MAY BE 'LEGISLATIVE GRACE' FOR CONGRESS TO PROVIDE FOR PAROLE
BUT WHEN IT EXPRESSLY REMOVES ALL HOPE OF PAROLE UPON CONVICTION AND
SENTENCE FOR CERTAIN OFFENCES, . . . THIS IS IN THE NATURE OF AN
ADDITIONAL PENALTY."  DURANT V. UNITED STATES, 410 F.2D 689, 691 (CA5
1969).  SECOND, A REPEALER OF PAROLE ELIGIBILITY PREVIOUSLY AVAILABLE
TO IMPRISONED OFFENDERS WOULD CLEARLY PRESENT THE SERIOUS QUESTION
UNDER THE EX POST FACTO CLAUSE OF ART. I, 9, CL. 3, OF THE
CONSTITUTION, OF WHETHER IT IMPOSED A "GREATER OR MORE SEVERE
PUNISHMENT THAN WAS PRESCRIBED BY LAW AT THE TIME OF THE . . .
OFFENSE," ROONEY V. NORTH DAKOTA, 196 U.S. 319, 325 (1905).  SEE LOVE
V. FITZHARRIS, 460 F.2D 382 (CA9 1972); CF. LINDEY V. WASHINGTON, 301
U.S. 397 (1937); HOLDEN V. MINNESOTA, 137 U.S. 483, 491 - 492 (1890);
CALDER V. BULL, 3 DALL.  386, 390 (1978); UNITED STATES EX REL.
UMBENHOWAR V. MCDONNELL, 11F.  SUPP.  1014 (ND I11.  1934). 

THUS, AT LEAST WHERE, AS IN THE CASE OF RESPONDENT'S NARCOTICS
OFFENSES, CONGRESS HAS BARRED PAROLE ELIGIBILITY AS A PUNITIVE MEASURE,
WE HOLD THAT THE NO-PAROLE PROVISION OF 7237 (B) IS A "PENALTY,
FORFEITURE, OR LIABILITY"  SAVED BY 109. 

III 

RESPONENT EMPHASIZES THAT CONGRESS COMPLETELY CHANGED ITS APPROACH
TO REGULATION OF NARCOTICS OFFENSES IN THE 1970 ACT, JETTISONING THE
RETRIBUTIVE APPROACH OF THE 1956 LAW IN FAVOR OF EMPHASIS IN THE 1970
ACT UPON REHABILITATION OF THE NARCOTICS OFFENDER.  HE ARGUES THAT, IN
LIGHT OF THIS BASIC CHANGE, LITTLE PURPOSE IS SERVED BY DENYING
RESPONDENT ELIGIBILITY FOR PAROLE, INDEED THAT SUCH DENIAL FRUSTRATES
THE CURRENT CONGRESSIONAL GOAL OF REHABILITATING NARCOTICS OFFENDERS. 
UNDENIABLY THIS ARGUMENT HAS FORCE, BUT IT IS ADDRESSED TO THE WRONG
GOVERNMENTAL BRANCH.  PUNISHMENT FOR FEDERAL CRIMES IS A MATTER FOR
CONGRESS, SUBJECT TO JUDICIAL VETO ONLY WHEN THE LEGISLATIVE JUDGMENT
OVERSTEPS CONSTITUTIONAL BOUNDS.  SEE GORE V. UNITED STATES, 357
U.S.386, 393 (1958); BELL V. UNITED STATES, 349 U.S. 81, 82 (1955). 
OF PAROLE ELIGIBILITY UNDER 7237 (B), AND, HOWEVER SEVERE THE
CONSEQUENCES FOR RESPONDENT, CONGRESS TRESPASSED NO CONSTITUTIONAL
LIMITS.     THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  TITLE 26 U.S.C. 7237 (B) (1964 ED. AND SUPP. V) PROVIDED: 

"UPON CONVICTION--, 

"(1) OF ANY OFFENSE THE PENALTY FOR WHICH IS PROVIDED IN SUBSECTION
(B) OF THIS SECTION, SUBSECTION (C), (H), OR (I) OF SECTION 2 OF THE
NARCOTIC DRUGS IMPORT AND EXPORT ACT, AS AMENDED, OR SUCH ACT OF JULY
11, 1941, AS AMENDED, OR 

"(2) OF ANY OFFENSE THE PENALTY FOR WHICH IS PROVIDED IN SUBSECTION
(A) OF THIS SECTION, IF IT IS THE OFFENDER'S SECOND OR SUBSEQUENT
OFFENSE, "THE IMPOSITION OR EXECUTION OF SENTENCE SHALL NOT BE
SUSPENDED, PROBATION SHALL NOT BE GRANTED, SECTION 4202 OF TITLE 18 OF
THE U.S.C. SHALL NOT APPLY, AND THE ACT OF JULY 15, 1932 (47 STAT. 696;
D.C. CODE 24 - 201 AND FOLLOWING), AS AMENDED, SHALL NOT APPLY." 

/2/  TITLE 18 U.S.C. 4202 PROVIDES: 

"A FEDERAL PRISONER, OTHER THAN A JUVENILE DELINQUENT OR A COMMITTED
YOUTH OFFENDER, WHEREVER CONFINED AND SERVING A DEFINITE TERM OR TERMS
OF OVER ONE HUNDRED AND EIGHTY DAYS, WHOSE RECORD SHOWS THAT HE HAS
OBSERVED THE RULES OF THE RULES OF THE INSTITUTION IN WHICH HE IS
CONFINED, MAY BE RELEASED ON PAROLE AFTER SERVING ONE-THIRD OF SUCH
TERM OR TERMS OR AFTER SERVING FIFTEEN YEARS OF A LIFE SENTENCE OR OF A
SENTENCE OF OVER FORTY-FIVE YEARS." 

/3/  RESPONDENT WAS CONVICTED OF VIOLATING 21 U.S.C. 173 (1965 ED.) 
AND 26 U.S.C. 4701, 4703, 4704 (A), AND 4771 (A) (1964 ED.).  HIS
SENTENCES WERE IMPOSED UNDER 21 U.S.C. 174 AND 26 U.S.C. 7237 (A). 
(B), WHICH WAS DIRECTLY APPLICABLE TO THE SENTENCE IMPOSED UNDER 7237
(A). 

/4/  SECTION 1103 (A) PROVIDES:  "PROSECUTIONS FOR ANY VIOLATION OF
LAW OCCURRING PRIOR TO THE EFFECTIVE DATE OF (THE ACT) SHALL NOT BE
AFFECTED BY THE REPEALS OR AMENDMENTS MADE BY (IT) . . . OR ABATED BY
REASON THEREOF." 

/5/  TITLE 1 U.S.C. 109 PROVIDES IN RELEVANT PART: 

"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." 

/6/  THE MANDATE WAS ISSUED BEFORE THE CIRCUIT JUSTICE SIGNED A
STAY.  THE STAY WAS TREATED, HOWEVER, AS STAYING ALL PROCEEDINGS UNDER
THE MANDATE.  RESPONDENT'S MOTION TO DISMISS THE WRIT OF CERTIORARI AS
MOOT IS THERFORE DENIED. 

/7/  THE COURTS OF APPEALS FOR THE SECOND AND TENTH CIRCUITS HAVE
HELD THAT NARCOTICS OFFENDERS ARE INELIGIBLE FOR PAROLE.  UNITED STATES
V. DE SIMONE, 468 F.2D 1196 (CA2 1972) (BUT SEE UNITED STATES V.
HUGUET, 481 F.2D 888 (CA10 1973)); PEREA V. UNITED STATES BOARD OF
PAROLE, 480 F.2D 608 (CA10 1973).  IN ADDITION TO THE COURT OF APPEALS
FOR THE THIRD CIRCUIT, IN THIS CASE, THE COURTS OF APPEALS FOR THE
FOURTH, FIFTH, SEVENTH, AND DISTRICT OF COLUMBIA CIRCUITS HAVE HELD
THAT NARCOTICS OFFENDERS ARE ELIGIBLE FOR PAROLE.  SEE ALVARADO V.
MCLAUGHLIN, 486 F.2D 541 (CA4 1973); AMAYA V. UNITED STATES BOARD OF
PAROLE, 486 F. 2D 940 (CA5 1973); UNITED STATES V. MCGARR, 461 FL2D 1
(CA7 1972); UNITED STATES V. MARSHALL, 158 U.S. APP. D.C. 283, 485 F.2D
1062 (1973). 

/8/  TITLE 18 U.S.C. 4208 (A) PROVIDES: 

"(A) UPON ENTERING A JUDGMENT OF CONVICTION, THE COURT HAVING
JURISDICTION TO IMPOSE SENTENCE, WHEN IN ITS OPINION THE ENDS OF
JUSTICE AND BEST INTERESTS OF THE PUBLIC REQUIRE THAT THE DEFENDANT BE
SENTENCED TO IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR, AMY (1)
DESIGNATE IN THE SENTENCE OF IMPRISONMENT IMPOSED A MINIMUM TERM AT THE
EXPIRATION OF WHICH THE PRISONER SHALL BECOME ELIGIBLE FOR PAROLE,
WHICH TERM MAY BE LESS THAM, BUT SHALL NOT BE MORE THAN ONE-THIRD OF
THE MAXIMUM SENTENCE IMPOSED BY THE COURT, OR (2) THE COURT MAY FIX THE
MAXIMUM SENTENCE OF IMPRISONMENT TO BE SERVED IN WHICH EVENT THE COURT
MAY SPECIFY THAT THE PRISONER MAY BECOME ELIGIBLE FOR PAROLE AT SUCH
TIME AS THE BOARD OF PAROLE MAY DETERMINE." 

/9/  THE STATEMENT IN MORRISSEY V. BREWER, 408 U.S. 471, 480 (1972),
THAT "(PAROLE ARISES AFTER THE END OF THE CRIMINAL PROSECUTION,
INCLUDING IMPOSITION OF SENTENCE" WAS ADDRESSED TO THE DECISION
DETERMINING THE TIME OF RELEASE ON PAROLE AS DISTINGUISHED FROM THE
DECISION DETERMINING ELIGIBILITY. 

/10/  RESPONDENT ARGUES THAT, SINCE THE 1970 ACT CONTAINS ITS OWN
SAVING CLAUSE, 1103 (A), THAT SPECIFIC DIRECTIVE SHOULD BE READ TO BY
RESEDE THE GENERAL CLAUSE 109.  BUT ONLY IF 1103 (A) CAN BE SAID BY
FAIR IMPLICATION OR EXPRESSLY TO CONFLICT WITH 109 WOULD THERE BE
REASON TO HOLD THAT 1103 (A) SUPERSEDED 109.  SEE GREAT NORTHERN R. CO.
V. UNITED STATES, 208 U.S. 452, 465 - 466 (1908).  WE FIND NO
CONFLICT. 

/11/  THE COURT OF APPEALS, RELYING ON STATEMENTS IN OPINIONS OF
THIS COURT THAT 109 IS INTENDED TO OBVIATE "MERE TECHNICAL ABATEMENT
(S)," SEE HAMM V. ROCK HILL, 379 U.S. 306, 314 (1964), HELD THAT, SINCE
RESPONDENT'S CONVICTION AND SENTENCE WOULD REMAIN INTACT EVEN IF HE
WERE RELEASED ON PAROLE, THE PURPOSES OF 1 U.S.C. 109 WOULD NOT BE
SERVED BY APPLYING IT TO SAVE THE NO-PAROLE PROVISION OF 26 U.S.C. 7237
(B).  483 F.2D 656, 663; SEE UNITED STATES V. STEPHENS, 449 F.2D 109,
105 - 106 (CA9 1971).  THIS ANALYSIS, IT SEEMS TO US, BEGS THE RELEVANT
QUESTION.  THE NO-PAROLE PROVISION OF 26 U.S.C. 7237 (B) WAS DIRECTLY
INCORPORATED INTO THE SENTENCING PROVISIONS OF 21 U.S.C. 174 AND 26
U.S.C. 7237 (A), SEE N. 3, SUPRA, AND IF THE REPEAL OF 26 U.S.C. 7237
(B) CAN BE VIEWED AS MITIGATING RESPONDENT'S PUNISHMENT UNDER THOSE
REPEALER AND HIS PROSECUTION WOULD "TECHNICALLY" ABATE UNDER THE COMMON
LAW RULE.  THUS, THE APPROPRIATE INQUIRY IS WHETHER PAROLE
INELIGIBILITY IS A "PENALTY, FOR FEITURE, OR LIABILITY" FOR HIS OFFENSE
THAT SURVIVES THE REPEALER. 

/12/  IN MORRISSEY V. BREWER, 408 U.S., AT 482, IN DETERMINING THAT
PAROLE MAY NOT BE REVOKED WITHOUT AFFORDING THE PAROLEE PROCEDURAL DUE
PROCESS, WE OBSERVED:  "THE LIBERTY OF A PAROLEE ENABLES HIM TO DO A
WIDE RANGE OF THINGS OPEN TO PERSONS WHO HAVE NEVER BEEN CONVICTED OF
ANY CRIME.  . . . SUBJECT TO THE CONDITIONS OF HIS PAROLE, HE CAN BE
GAINFULLY EMPLOYED AND IS FREE TO BE WITH FAMILY AND FRIENDS AND TO
FORM THE OTHER ENDURING ATTACHMENTS OF NORMAL LIFE.  THOUGH THE STATE
PROPERLY SUBJECTS HIM TO MANY RESTRICTIONS NOT APPLICABLE TO OTHER
CITIZENS, HIS CONDITION IS VERY DIFFERENT FROM THAT OF CONFINEMENT IN A
PRISON."  (FOOTNOTE OMITTED.) 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE COURT HOLDS THAT THE NO-PAROLE PROVISION OF THE REPEALED
STATUTE, 26 U.S.C. 7237 (B) (1964 ED. AND SUPP. V), IS SAVED BY BOTH
THE GENERAL SAVING CLAUSE, 1 U.S.C. 109, AND THE SPECIFIC SAVING
CLAUSE, 1103 (A), OF THE 1970 ACT.  I BELIEVE THAT NEITHER PROVISION
CAN BE READ TO COVER POSTSENTENCING PAROLE ELIGIBILITY AND I THEREFORE
RESPECTFULLY DISSENT. 

        I 

ENVISIONED BY, AND WITHIN THE MEANING OF, THE GENERAL SAVING STATUTE, 1
U.S.C. 109.  THE PURPOSE AND THRUST OF 109, THE PERTINENT PORTION OF
WHICH WAS ENACTED ORIGINALLY IN 1871, C.71, 16 STAT. 432, IS TO
PRECLUDE THE TECHNICAL ABATEMENT OF A PROSECUTION FOR AN OFFENSE THAT
WAS COMMITTED BEFORE THE CRIMINAL STATUTE WAS REPEALED.  HAMM V. ROCK
HILL, 379 U.S. 306, 314 (1964).  QUITE APPROPRIATELY, THIS RECOGNIZES
THAT, APART FROM EXCEPTIONAL CIRCUMSTANCES, /1/  ONE WHO VIOLATES THE
CRIMINAL LAW SHOULD NOT ESCAPE SANCTION IF, SUBSEQUENT TO THE
COMMISSION OF HIS CRIMINAL ACT, THE LAW HAPPENS TO BE REPEALED. 

THIS SAVING STATUTE, HOWEVER, IS NOT IN LINE WITH THE TRADITIONAL
COMMON-LAW RULE FAVORING APPLICATION OF EXISTING LAW.  UNITED STATES V.
CHAMBERS, 291 U.S. 217 (1934); UNITED STATES V. TYNEN, II WALL.  88
(1871).  SEE UNITED STATES V. SCHOONER PEGGY, 1 CRANCH 103 (1801);
BRADLEY V. SCHOOL BOARD OF THE CITY OF RICHMOND, 416 U.S. 696 (1947). 
THE STATUTE HAS NEVER BEEN APPLIED BY THIS COURT OTHER THAN TO PREVENT
TECHNICAL ABATEMENT OF A PROSECUTION.  /2/  THOSE FEDERAL COURTS THAT
HAVE INTERPRETED THE STATUTE'S REFERENCE TO "PENALTY" TO INCLUDE THE
TERMS OF THE SENTENCE HAVE DEALT ONLY WITH THE LINGTH OF THE SENTENCE
ACTUALLY IMPOSED.  UNITED STATES V. KIRBY, 176 F.2D 101 (CA2 1949);
LOVELY V. UNITED STATES, 175 F.2D 312 (CA4), CERT. DENIED, 338 U.S. 834
(1949); DUFFEL V. UNITED STATES, 95 U.S. APP. D.C. 242, 221 F.2D 523
(1954); MACEO V. UNITED STATES, 46 F.2D 788 (CA5 1931).  /3/ 

IN THIS CASE, HOWEVER, WE ARE FACED WITH A DECIDEDLY DIFFERENT
SITUATION.  RESPONDENT MARRERO IN NO WAY IS SEEKING TO AVOID PUNISHMENT
FOR HIS CRIMINAL ACT, AND HE IS STILL FULLY SUBJECT TO THE SERVICE OF
HIS SENTENCE.  WHAT MARRERO SEEKS IS MERELY THE OPPORTUNITY TO BE
CONSIDERED FOR PAROLE.  ELIGIBILITY FOR PAROLE WILL NOT FREE HIM FROM
HIS IMPOSED SENTENCE.  THE DECISION WHETHER HE SHOULD BE ACCORDED
PAROLE LIES WITHIN THE DISCRETION OF THE BOARD OF PAROLE.  IF FOR ANY
REASON THE BOARD FEELS THAT PAROLE WOULD NOT BE APPROPRIATE FOR THE
RESPONDENT, IT CAN BE DENIED, AND MARRERO WILL REMAIN INCARCERATED FOR
THE TERM TO WHICH HE IS SUBJECT.  MOREOVER, EVEN IF PAROLE IS DEEMED
APPROPRIATE AND IS GRANTED, RESPONDENT STILL WOULD BE SUBJECT TO THE
CONDITIONS THE PAROLE AUTHORITIES CHOOSE TO PLACE ON HIS CONDITIONAL
FREEDOM. 

AS THE FOURTH CIRCUIT APTLY HAS OBSERVED, PAROLE "IS NOT A RELEASE
OF THE PRISIONER FROM ALL DISCIPLINARY RESTRAINT BUT IS RATHER MERELY
'AN EXTENSION OF THE PRISON WALLS'; AND THE PRISONER WHILE ON PAROLE
REMAINS 'IN THE LEGAL CUSTODY AND UNDER THE CONTROL OF' THE PAROLE
BOARD,"  UNITED STATES EX REL. ROWE V. NICHOLSON, 78 F.2D 468, 469 -
470, CERT. DENIED, 296 U.S. 573 (1935); ALVARADO V. MCLAUGHLIN, 486
F.2D 541, 544 (1973).  SEE ALSO UNITED STATES V. MARSHALL, 158 U.S.
APP. D.C. 283, 286, 485 F.2D 1062, 1065 (1973).  THE "SENTENCE" TO BE
SERVED BY RESPONDENT IS STILL 10 YEARS, WHETHER OR NOT HE IS GRANTED
PAROLE.  CF. ANDERSON V. CORALL, 263 U.S. 193 (1923).  IN SHORT, IT IS
BY NO MEANS CLEAR TO ME THAT RESPONDENT MARRERO IS SEEKING TO BE
RELIEVED OF THE OBLIGATIONS OF THE "SENTENCE" IMPOSED UPON HIM. 

BY EXPANDING THE TERM "PENALTY" TO INCLUDE PAROLE INELIGIBILITY,
RATHER THAN RESTRICTING IT TO THE SENTENCE IMPOSED, THE COURT, IN MY
VIEW, MISCONCEIVES THE NATURE OF PAROLE INELIGILITY AND EXTENDS 109
WELL BEYOND ITS PRIOR LIMITS.  TO SAY THAT CONGRESS INTENDED PAROLE
INELIGIBILITY TO BE A "PENALTY" UNDER THE REPEALED STATUTE IS MERELY TO
STATE THE CONCLUSION.  THE APPROPRIATE QUESTION IS WHETHER CONGRESS
INTENDED PAROLE INELIGIBILITY TO BE THE TYPE OF "PENALTY" PRESERVED BY
THE GENERAL SAVING STATUTE.  UNTIL TODAY, 109 HAS NOT BEEN READ SO
BROADLY, AND I BELIEVE THIS EXTENSION GOES BEYOND THE INTENDED NARROW
ANTI-ABATEMENT REACH OF 109.  TO REPEAT: 109 "WAS MEANT TO OBVIATE MERE
TECHNICAL ABATEMENT."  HAMM V. ROCK HILL, 379 U.S., AT 314. 

THIS UNPRECEDENTED EXTENSION OF 109 MIGHT BE JUSTIFIED, AND PERHAPS
MADE ACCEPTABLE, IF IT WERE POSSIBLE IN ANY WAY TO CONCLUDE THAT THE
COURT'S READING SERVES TO EFFECTUATE CONGRESSIONAL INTENT OR TO PROMOTE
SOME VALID POLICY.  BUT THE RESULT REACHED CLEARLY DOES A DISSERVICE IN
BOTH RESPECTS. 

AS IS DEMONSTRATED IN PART II, INFRA, CONGRESS DID NOT AFFIRMATIVELY
INTEND TO SAVE THE NO-PAROLE PROVISION.  AND ON PURE POLICY GROUNDS,
THE RESULT REACHED BY THE COURT IS WHOLLY ILLOGICAL.  PRESUMABLY, THE
PURPOSES BEHIND PAROLE INELIGIBILITY ARE TO EFFECT A DETERRENCE TO THE
COMMISSION OF NARCOTICS OFFENSES, AND TO KEEP SERIOUS DRUG OFFENDERS
BEHIND BARS FOR LONGER PERIODS.  BY REPEALING THE PAROLE INELIGIBILITY
PROVISION, CONGRESS REJECTED ANY DETERRENCE RATIONALE THAT HAD
EXISTED.  A PERSON WHO, ON OR SUBSEQUENT TO MAY 1, 1971, MIGHT
ANTICIPATE THE COMMISSION OF A DRUG OFFENSE AND WHO IS COGNIZANT OF THE
LAW, KNOWS THAT HE IS ELIGIBLE FOR PAROLE UNDER 18 U.S.C. 4202 AFTER
SERVICE OF ONE-THIRD OF HIS MORE-THAN-180-DAYS SENTENCE.  THE ANOMALOUS
EFFECT OF THE COURT'S ACTION IS THAT IT KEEPS AN INMATE WHO IS
CONVICTED OF AN OFFENSE COMMITTED ON APRIL 30, 1971, INCARCERATED FOR
THE FULL LENGTH OF HIS TERM, WHILE HIS FELLOW INMATE WHO COMMITTED THE
IDENTICAL CRIME ON MAY 2 AND WHO BEHAVED IDENTICALLY IN PRISON, IS
ELIGIBLE FOR RELEASE AFTER ONE-THIRD THE TIME.  SURELY, DISPARATE
TREATMENT OF THIS KIND SERVES ONLY TO FRUSTRATE THE INMATE'S SENSE OF
JUSTICE AND TO UNDERMINE WHATEVER REHABILITATIVE ATTEMPTS CURRENTLY ARE
BEING MADE.  /4/

       II 

PREVENTION AND CONTROL ACT OF 1970, 84 STAT. 1236, WITH ITS SPECIFIC
REPEALER PROVISIONS IN 1101 (B) (3) (A) AND (B) (4) (A), CONGRESS
UNEQUIVOCALLY WITHDREW AND REJECTED THE CONCEPT OF PAROLE
INELIGIBILITY.  IT CONCLUDED THAT THE CRIMINAL PROCESS IS ILL SERVED BY
A LAW THAT REMOVES THE INCENTIVES AND THE REHABILITATIVE POTENTIAL OF A
PAROLE SYSTEM.  THE ONLY REFERENCE IN THE 1970 ACT TO PRE-ACT OFFENDERS
IS IN THE SAVING PROVISION OF 1103 (A), 84 STAT. 1294, AND IT PRECLUDES
ABATEMENT ONLY OF "PROSECUTION."  ALTHOUGH WE PRETERMITTED THIS PRECISE
QUESTION IN BRADLEY V. UNITED STATES, 410 U.S. 605, 611 N.6 (1973), THE
COURT CLEARLY DISTINGUISHED POSTSENTENCE PAROLE ELIGIBILITY FROM THE
SPECIFIC TERMS OF THE SENTENCE ALREADY HANDED DOWN.  I BELIEVE THIS
DISTINCTION IS CRUCIAL AND THAT IT REQUIRES A DIFFERENT RESULT IN THE
INSTANT SITUATION.     IN DETERMINING WHETHER 1103 (A) BARS PAROLE
ELIGILILITY FOR PRE-ACT OFFENDERS, THE COURT SHOULD ASCERTAIN WHAT
CONGRESS INTENDED.  WHILE THERE IS NO PRECISE LEGISLATIVE HISTORY ON
THIS QUESTION, I THINK THE WORDING OF 1103 (A) AND THE OVERALL PURPOSES
OF THE 1970 ACT PRECLUDE THE RESULT REACHED BY THE COURT.  SECTION 1103
(A) APPLIES ONLY TO "PROSECUTIONS."  WE REACHED THE OUTER LIMIT OF THIS
TERM IN BRADLEY.  CERTAINLY THE LEGISLATIVE AND JUDICIAL HISTORY OF THE
EVEN BROADER LANGUAGE OF THE GENERAL SAVING PROVISION, 109, HARDLY
SUPPORTS THE EXTRAVAGANT INTERPRETATION OF 1103 (A) REACHED TODAY.  IN
LIGHT OF THE CLEAR HISTORY AND LAW UNDER 109, HAD CONGRESS WANTED TO
SAVE MORE THAN THE PROSECUTION ITSELF, IT COULD WELL HAVE DONE SO IN
SPECIFIC TERMS.  INSTEAD, IT CHOSE THE NARROWEST POSSIBLE SAVING
CLAUSE.  PARTICULARLY IN LIGHT OF THE FACT THAT THE TEXT OF THE 1970
ACT SPECIFICALLY REJECTS THE CONCEPT OF PAROLELESS SENTENCING, IT IS
ILLOGICAL AND UNWARRANTED TO ASSUME THAT CONGRESS INTENDED THE TERM
"PROSECUTIONS" TO BE READ SO BROADLY. 

FOR ME THERE IS NO AMBIGUITY IN 1103 (A).  I WOULD TAKE THE LIMITED
SAVING CLAUSE AT ITS WORD.  ASSUMING, ARGUENDO, THAT THERE IS SOME
DOUBT AS TO THE CONGRESSIONAL INTENT, IT IS HARSH, TO SAY THE LEAST, TO
RESOLVE THE DOUBT IN THE MANNER CHOSEN BY THE COURT.  IN LIGHT OF THE
GENERAL RULE FAVORING APPLICATION OF EXISTING LAW, UNITED STATES V.
CHAMBERS, 291 U.S. 217 (1934), AND THE GENERAL RULE FAVORING
CONSTRUCTION OF AMBIGUOUS STATUTES IN FAVOR OF CRIMINAL DEFENDANTS,
UNITED STATES V. BASS, 404 U.S. 336 (1971), I SEE NO OTHER CHOICE THAN
TO RESOLVE ANY DOUBTS IN FAVOR OF ELIGIBILITY. 

THE COURT WOULD JUSTIFY ITS BROAD READING OF THE WORD "PROSECUTION"
BY STATING THAT "A PRAGMATIC VIEW OF SENTENCING REQUIRES (THIS)
CONCLUSION."  ANTE, AT 658.  NEEDLESS TO SAY, NO AUTHORITY, LEGAL OR
OTHERWISE, IS CITED FOR THIS PROPOSITION OTHER THAN THE MAJORITY'S OWN
INTUITION, AND I VENTURE TO SAY THAT NONE COULD BE CITED.  PAROLE
ELIGIBILITY IS DETERMINED BY A PAROLE BOARD AT ITS DISCRETION, AND THE
EXISTENCE OF PAROLE ELIGIBILITY IS EITHER GUARANTEED BY STATUTE.  ONE
THING IS CLEAR: THE SENTENCING JUDGE HAS NO EXPLICIT CONTROL OVER THE
DETERMINATION.  CONGRESS HAS NEVER INSTRUCTED DISTRICT COURTS TO ASSESS
SENTENCES ACCORDING TO PAROLE ELIGIBILITY DATES AND IF IN FACT SOME
JUDGES DO THIS, IT HARDLY JUSTIFIES THIS COURT'S FLAT CONCLUSION THAT
PAROLE ELIGIBILITY IS "IMPLICIT IN THE TERMS OF THE SENTENCE" AND IS
"THUS DETERMINED AT THE TIME OF SENTENCING."  IBID. 

WHATEVER ELSE BRADLEY HELD, IT CLEARLY STATED THAT THE PAROLE
ELIGIBILITY DETERMINATION UNDER 18 U.S.C. 4202 (AS OPPOSED TO
PRECLUSION OF EARLY PAROLE IN THE TERMS OF THE SENTENCE, AS IN BRADLEY)
DOES NOT LIE WITH THE DISTRICT JUDGE, AND THE DETERMINATION IS "MADE
LONG AFTER SENTENCE HAS BEEN ENTERED AND THE PROSECUTION TERMINATED." 
410 U.S., AT 611 N.6.  /5/  EVEN ASSUMING N.6 IN BRADLEY DID NOT
CONCLUSIVELY DECIDE THE INSTANT ISSUE, THE COURT'S OPINION RENDERS THE
WORDS OF THE FOOTNOTE A NULLITY.  THE MAJORITY STATES THAT WE "COULD
NOT REASONABLY BE THOUGHT TO HAVE DECIDED IN A FOOTNOTE A QUESTION 'ON
WHICH' WE SIAD IN THE TEXT, 'WE EXPRESS NO OPINION,'"  ANTE, AT 659. 
IT THEN GOES ON TO DECIDE THAT VEY ISSUE, RELYING ALMOST ENTIRELY ON
BRADLEY AND CONCLUDING THAT "UNDER THE TEACHING OF BRADLEY"
INELIGIBILITY FOR PAROLE "IS PART OF THE 'PROSECUTION.'"  AT THE LEAST,
BRADLEY PRECLUDES THE APPROACH TAKEN BY THE MAJORITY.  TO MY MIND, IT
PRECLUDES THE RESULT REACHED. 

        III 

RESPONDENT MARRERO DOES NOT SEEK RELEASE.  HE SEEKS ONLY TO BE
TREATED IN THE MANNER CONGRESS NOW HAS RECOGNIZED AS APPROPRIATE FOR
ALL CRIMINAL OFFENDERS, INCLUDING THOSE CONVICTED OF NARCOTICS
VIOLATIONS.  IF A PROFESSIONAL BOARD OF PAROLE DETERMINES THAT PAROLE
IS IN THE BEST INTERESTS OF AN INMATE AND OF SOCIETY, CONGRESS HAS
DETERMINED THAT THE INMATE SHOULD BE PAROLED.  THE COURT, IN MY VIEW,
MAKES A SERIOUS MISTAKE IN EXPANDING 109 SO DRASTICALLY, AND IN
INTERPRETING 1103 (A) CONTRARY TO ITS INTENT AND LANGUAGE, IN ORDER TO
PRECLUDE THIS RESULT.  WITH ONLY ONE EXCEPTION, /9/  THE FEDERAL COURTS
OF APPEALS THAT HAVE CONSIDERED THIS ISSUE CURRENTLY REJECT THE
GOVERNMENT'S ARGUMENT.  /7/  INASMUCH AS I BELIEVE THE GOVERNMENT'S
POSITION HERE IS INCORRECT, IN TERMS BOTH OF THE LAWS AND OF POLICY, I
WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  SEE, E.G., HAMM V. ROCK HILL, 379 U.S. 306 (1964). 

/2/  THE ISSUE CERTIFIED AND DECIDED IN UNITED STATES V. REISINGER,
128 U.S. 398 (1888), WAS ONLY WHETHER A PROSECUTION UNDER A REPEALED
CRIMINAL STATUTE SURVIVED THE REPEAL.  "PENALTY" APPEARS TO HAVE BEEN
USED THERE INTERCHANGEABLY WITH THE CONCEPT OF CRIMINAL LIABILITY.  SEE
ALSO UNITED STATES V. SMITH, 433 F.2D 341 (CA4 1970), CERT. DENIED, 401
U.S. 942 (1971); UNITED STATES V. BROWN, 429 F.2D 566 (CA5 1970);
FAUBION V. UNITED STATES, 424 F.2D 437 (CA10 1970). 

/3/  IN KIRBY AND LOVELY THE COURTS OF APPEALS CONSTRUED THE GENERAL
SAVING CLAUSE IN CONNECTION WITH REPEALING STATUTES' SAVING CLAUSES
THAT PROVIDED FOR THE NONABATEMENT OF ANY "RIGHTS AND LIABILITIES"
UNDER THE REPEALED ACTS.  IT IS INTERESTING TO NOTE THAT ALL THE CASES
CITED BY THE COURT, ANTE, AT 661, AND PETITIONER, BRIEF FOR PETITIONER
16 - 17, FOR THE PROPOSITION THAT SENTENCE AS WELL AS PROSECUTION
SURVIVES UNDER THE GENERAL SAVING CLAUSE, WERE DECIDED IN CIRCUITS THAT
SUBSEQUENTLY REJECTED THE EXTENSION SOUGHT BY PETITIONER IN THE PRESENT
CASE. 

/4/  THE SOLICITOR GENERAL CONCEDES THAT GRANTING PAROLE ELIGIBILITY
PRESENTS NO INSTITUTIONAL PROBLEMS. 

"NEITHER THE BUREAU OF PRISONS NOR THE BOARD OF PAROLE BELIEVES THAT
IT WOULD IMPEDE THE PROPER PERFORMANCE OF THEIR FUNCTIONS IF THEY WERE
REQUIRED TO CONSIDER NARCOTICS OFFENDERS CONVICTED UNDER THE PRIOR
STATUTE ELIGIBLE FOR PAROLE UNDER 18 U.S.C. 4202.  SUCH A REQUIREMENT
WOULD NOT DEMAND THE GRANTING OF PAROLE TO ANY INDIVIDUAL PRISONER
UNLESS THE BOARD DETERMINES THAT HIS SUPERVISED RELEASE FROM
CONFINEMENT IS IN THE INTERESTS OF BOTH THE PRISONER AND SOCIETY." 
BRIEF FOR PETITIONER 8. 

/5/  AS THE COURT NOTES, ANTE, AT 659 N. 9, IN MORRISSEY V. BREWER,
408 U.S. 471, 480 (1972), WE STATED THAT "(PAROLE ARISES AFTER THE END
OF THE CRIMINAL PROSECUTION, INCLUDING IMPOSITION OF THE SENTENCE." 
THE FACT THAT THE DECISION MIGHT HAVE DEALT WITH RELEASE RATHER THAN
THE DETERMINATION OF ELIGIBILITY DOES NOT ELIMINATE THE CONCEPTUAL
PROPOSITION THAT PAROLE ELIGIBILITY IS AN EVENT SEPARATE FROM
SENTENCING, AND I FEEL THAT THE MAJORITY'S ATTEMPTED DISTINCTION IS NOT
PERSUASIVE. 

/6/  PEREA V. UNITED STATES BOARD OF PAROLE, 480 F.2D 608 (CA10
1973). 

/7/  UNITED STATES EX REL. MARRERO V. WARDEN, 483 F.2D 656 (CA3
1973) (THE INSTANT CASE); ALVARADO V. MCLAUGHLIN, 486 F.2D 541 (CA4
1973), PET. FOR CERT. PENDING SUB NOM. MCLAUGHLIN, V. PRIETO; AMAYA V.
UNITED STATES BOARD OF PAROLE, 486 F.2D 940 (CA5 1973), PET. FOR CERT.
PENDING; UNITED STATES V. MARSHALL, 158 U.S. APP.  D.C. 283, 286, 485
F.2D 1062, 1065 (1973).  SEE UNITED STATES V. HUGUET, 481 F.2D 888 (CA2
1973) (QUESTION PRETERMITTED).  SEE ALSO UNITED STATES V. MCGARR, 461
F.2D 1, 4 (CA7 1972); UNITED STATES V. STEPHENS, 449 F.2D 103 (CA9
1971).  THE SECOND CIRCUIT'S EARLIER DECISION IN UNITED STATES V. DE
SIMONE, 468 F.2D 1196 (1972), CERT. DENIED, 410 U.S. 989 (1973), CITED
BY THE COURT, ANTE, AT 656 N. 7, WAS REFERRED TO IN HUGUET, SUPRA, AND
"CANNOT BE REGARDED AS CONTROLLING."  481 F.2D, AT 891. 

DEPUTY SOLICITOR GENERAL LAFONTANT ARGUED THE CAUSE FOR PETITIONER. 
WITH HER ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY
GENERAL PETERSEN, HARRIET S. SHAPIRO, AND JEROME M. FEIT. 

JOHN J. WITMEYER III, BY APPOINTMENT OF THE COURT, 416 U.S. 979,
ARGUED THE CAUSE FOR RESPONDENT PRO HAC VICE. 

  WITH HIM ON THE BRIEF WERE STEWART DALZELL AND C. BATCHELDER,
JR.  /1/ 

/1/  JOSEPH ONEK AND ANN K. MACRORY FILED A BRIEF FOR THE WASHINGTON
LAWYERS, COMMITTEE FOR CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :








CENTRAL TABLET MFG. CO. V. UNITED STATES, 417 U.S. 673 


       CENTRAL TABLET MANUFACTURING CO. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 593.  ARGUED MARCH 25 - 26, 1974__DECIDED JUNE 19,

           1974; (481 F.2D 954, AFFIRMED.) 


    WHEN A FIRE DESTROYS INSURED CORPORATE PROPERTY PRIOR TO THE

  CORPORATION'S ADOPTION OF A COMPLETE PLAN OF LIQUIDATION, BUT THE

  FIRE INSURANCE PROCEEDS ARE RECEIVED WITHIN 12 MONTHS AFTER THE

  PLAN'S ADOPTION, THE GAIN REALIZED FROM THE EXCESS OF SUCH

  PROCEEDS OVER THE CORPORATE TAXPAYER'S ADJUSTED INCOME TAX BASIS

  IN THE INSURED PROPERTY MUST BE RECOGNIZED AND TAXED TO THE

  CORPORATION, AND IS NOT ENTITLED TO NONRECOGNITION UNDER 337 (A)

  OF THE INTERNAL REVENUE CODE OF 1954, WHICH PROVIDES, WITH

  CERTAIN EXCEPTIONS, FOR NONRECOGNITION OF GAIN OR LOSS FROM A

CORPORATION'S "SALE OR EXCHANGE" OF PROPERTY THAT TAKES PLACE

  DURING THE 12 MONTH PERIOD FOLLOWING THE CORPORATION'S ADOPTION

  OF A PLAN FOR COMPLETE LIQUIDATION EFFECTUATED WITHIN THAT

  PERIOD.  PP. 677 - 691. 

     (A) THE UNVOLUNTARY CONVERSION BY FIRE, RECOGNIZED AS A "SALE

  OR EXCHANGE" UNDER 337 (A), TAKES PLACE WHEN THE FIRE OCCURS

PRIOR TO THE ADOPTION OF THE LIQUIDATION PLAN, AND NOT AT SOME

  POST-PLAN POINT, SUCH AS THE SUBSEQUENT SETTLEMENT OF THE

  INSURANCE CLAIMS OR THEIR PAYMENT, SINCE THE FIRE IS THE SINGLE

  IRREVOCABLE EVENT THAT FIXES THE CONTRACTUAL OBLIGATION

  PRECIPITATING THE TRANSFORMATION OF THE PROPERTY, OVER WHICH THE

  CORPORATION POSSESSES ALL INCIDENTS OF OWNERSHIP, INTO A CHOSE IN

  ACTION AGAINST THE INSURER.  PP. 683 - 685.  (B) SECTION 337 (A)

  WAS ENACTED IN ORDER TO ELIMINATE TECHNICAL AND FORMALISTIC

  DETERMINATIONS AS TO THE IDENTITY OF THE VENDOR, AS BETWEEN THE

  LIQUIDATING CORPORATION AND ITS SHAREHOLDERS, AND THEREFORE, THE

  REASONS FOR APPLYING 337 (A) ARE NOT PRESENT IN A SITUATION WHERE

  THE CONVERSION TAKES PLACE PRIOR TO THE ADOPTION OF THE PLAN WHEN

  THERE IS NO QUESTION AS TO THE IDENTITY OF THE OWNER.  PP. 686 -

  687. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, MARSHALL, AND REHNQUIST, JJ., JOINED. 

WHITE, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN,

  AND POWELL, JJ., JOINED, POST, P. 691. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

(A), /1/  PROVIDES, WITH STATED EXCEPTIONS, FOR THE NONRECOGNITION OF
GAIN OR LOSS FROM A CORPORATION'S "SALE OR EXCHANGE" OF PROPERTY THAT
TAKES PLACE DURING THE 12 MONTH PERIOD FOLLOWING THE CORPORATION'S
ADOPTION OF A PLAN OF COMPLETE LIQUIDATION THAT IS EFFECTUATED WITHIN
THAT PERIOD.  THE ISSUE IN THIS CASE IS WHETHER, WHEN A FIRE DESTROYS
CORPORATE PROPERTY PRIOR TO THE ADOPTION OF A PLAN OF COMPLETE
LIQUIDATION, BUT THE FIRE INSURANCE PROCEEDS ARE RECEIVED AFTER THE
PLAN'S ADOPTION, THE GAIN REALIZED IS OR IS NOT TO BE RECOGNIZED TO THE
CORPORATION. 

        I 

THE FACTS ARE NOT CONTESTED.  TAXPAYER, CENTRAL TABLET MANUFACTURING
COMPANY, AN OHIO CORPORATION, FOR MANY YEARS PRIOR TO MAY 14, 1966, WAS
ENGAGED AT COLUMBUS, OHIO, IN THE MANUFACTURE AND SALE OF WRITING
TABLETS, SCHOOL SUPPLIES, ART MATERIALS, AND RELATED ITEMS.  IT FILED
ITS FEDERAL INCOME TAX RETURNS ON THE ACCRAL BASIS OF ACCOUNTING AND
FOR THE FISCAL YEAR ENDED OCTOBER 31. 

ON AUGUST 13, 1965, A MAJORITY OF THE TAXPAYER'S PRODUCTION AND
MAINTENANCE EMPLOYEES WENT ON STRIKE.  AS A CONSEQUENCE, PRODUCTION WAS
REDUCED TO ABOUT 5% OF NORMAL VOLUME.  ON SEPTEMBER 10, DURING THE
STRIKE, AN ACCIDENTAL FIRE LARGELY DESTROYED THE TAXPAYER'S PLANT, ITS
MANUFACTURING EQUIPMENT AND MACHINERY, AND ITS BUSINESS OFFICES.  THE
DAMAGE WAS NEVER REPAIRED, THE STRIKE WAS NEVER SETTLED, AND THE
TAXPAYER NEVER AGAIN ENGAGED IN MANUFACTURING. 

AT THE TIME OF THE FIRE, THE TAXPAYER CARRIED FIRE AND EXTENDED
COVERAGE INSURANCE ON ITS BUILDING, MACHINERY, AND INVENTORY.  IT ALSO
CARRIED BUSINESS INTERRUPTION INSURANCE.  NEGOTIATIONS RELATING TO THE
TAXPAYER'S CLAIM FOR BUSINESS INTERRUPTION LOSS BEGAN ABOUT OCTOBER 8,
1965, AND THOSE ON ITS CLAIMS FOR BUILDING AND PERSONAL PROPERTY LOSSES
BEGAN ABOUT NOVEMBER 1.  THERE WAS DISPUTE AS TO THE ESTIMATED PERIOD
OF LOSS TO BE COVERED BY THE BUSINESS INTERRUPTION INSURANCE; AS TO THE
PROBABLE DURATION OF THE STRIKE HAD THE FIRE NOT TAKEN PLACE; AS TO THE
APPLICABILITY OF THE BUILDING POLICY'S COINSURANCE CLAUSE; AS TO THE
EXTENT OF THE EQUIPMENT LOSS DUE TO THE FIRE RATHER THAN TO RAIN; AS TO
THE VALUE OF THE BUILDING AND EQUIPMENT AT THE TIME OF THE FIRE; AND AS
TO THE COST OF REPAIR OF REPAIRABLE MACHINERY AND EQUIPMENT.  THE
THRESHOLD LIABILITY OF THE INSURANCE CARRIERS, HOWEVER, DESPITE THEIR
NOT UNUSUAL REJECTION OF THE INITIAL FORMAL PROOFS OF CLAIM, WAS NEVER
SERIOUSLY QUESTIONED. 

EIGHT MONTHS AFTER THE FIRE, AT A SPECIAL MEETING ON MAY 14, 1966,
THE SHAREHOLDERS OF CENTRAL TABLET DECIDED TO DISSOLVE THE CORPORATION
AND ADOPTED A PLAN OF DISSOLUTION AND COMPLETE LIQUIDATION PURSUANT TO
OHIO REV. CODE ANN. 1701.86 (1964).  APP. 38.  ABOUT SIX DAYS LATER,
THE TAXPAYER AND THE INSURERS SETTLED THE BUILDING CLAIM; PAYMENT OF
THAT CLAIM WAS RECEIVED IN MID-JUNE.  IN AUGUST, THE TAXPAYER SETTLED
ITS PERSONAL PROPERTY CLAIM AND RECEIVED PAYMENT ON IT IN NOVEMBER.  ON
MAY 3, 1967, ALL ASSETS REMAINING AFTER LIQUIDATING DISTRIBUTIONS TO
THE SHAREHOLDERS WERE CONVEYED TO A COLUMBUS BANK IN TRUST FOR THE
SHAREHOLDERS PENDING THE PAYMENT OF TAXES AND THE COLLECTION OF
REMAINING INSURANCE AND OTHER CLAIMS.  ON THE SAME DATE, THE TAXPAYER
FILED A CERTIFICATE OF DISSOLUTION WITH THE OHIO SECRETARY OF STATE. 
OHIO REV. CODE ANN.  1701.86 (H) AND (I) (1964).  ALL THIS WAS
ACCOMPLISHED WITHIN 12 MONTHS OF THE ADOPTION OF THE PLAN ON MAY 14,
1966. 

THE BUSINESS INTERRUPTION CLAIM WAS SETTLED IN AUGUST 1967 AND
PAYMENT THEREOF WAS RECEIVED IN SEPTEMBER OF THAT YEAR. 

THE FIRE INSURANCE PROCEEDS EXCEEDED THE TAXPAYER'S ADJUSTED INCOME
TAX BASIS IN THE INSURED PROPERTY.  GAIN, THEREFORE, WAS REALIZED AND
ORDINARILY WOULD BE RECOGNIZED AND TAXED TO THE CORPORATION.  1033 (A)
(3) OF THE 1954 CODE, 26 U.S.C. 1033 (A) (3); TOBIAS V. COMMISSIONER,
40 T.C. 84, 95 (1963).  THE TAXPAYER, HOWEVER, RESORTING TO 337 (A),
DID NOT REPORT THIS GAIN OR ANY PART OF THE BUSINESS INTERRUPTION
INSURANCE PAYMENT IN ITS INCOME TAX RETURNS FOR FISCAL 1965 OR FOR ANY
YEAR.  IN JANUARY 1968, UPON AUDIT, THE INTERNAL REVENUE SERVICE
ASSERTED A DEFICIENCY IN THE TAXPAYER'S INCOME TAX FOR FISCAL 1965. 
THIS WAS ATTRIBUTABLE TO THE SERVICE'S INCLUSION IN GROSS INCOME FOR
THAT YEAR OF (A) CAPITAL GAIN EQUAL TO THE EXCESS OF THE FIRE INSURANCE
PROCEEDS OVER ADJUSTED BASIS, (B) FISCAL 1965'S PRO RATA SHARE OF THE
BUSINESS INTERRUPTION INSURANCE PAYMENT, AND (C) AN AMOUNT NOT AT ISSUE
HERE.  A DEFICIENCY IN THE TAXPAYER'S FISCAL 1963 TAX WAS ALSO
ASSERTED; THIS WAS ATTRIBUTABLE TO A DECREASE IN OPERATING LOSS
CARRYBACK FROM FISCAL 1966 BECAUSE OF ADJUSTMENTS IN THE TREATMENT OF
THE INSURANCE PROCEEDS.  /2/  THE TAXPAYER PAID THE DEFICIENCIES, FILED
CLAIMS FOR REFUND, AND IN DUE TIME, INSTITUTED THE PRESENT ACTION IN
FEDERAL COURT TO RECOVER THE AMOUNTS SO PAID. 

THE DISTRICT COURT FOLLOWED THE DECISION IN UNITED STATES V. MORTON,
387 F.2D 441 (CA8 1968), WHICH CONCERNED A TAXPAYER ON THE CASH, RATHER
THAN THE ACCRUAL, BASIS, AND HELD THAT 337 (A) WAS AVAILABLE TO THE
TAXPAYER.  339 F. SUPP. 1134 (SD OHIO 1972).  /3/  JUDGMENT FOR THE
TAXPAYER WAS ENTERED.  ON APPEAL, THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT, REFUSING TO FOLLOW MORTON, REVERSED AND
REMANDED.  481 F.2D 954 (1973).  IN VIEW OF THE INDICATED CONFLICT IN
THE DECISIONS OF THE EIGHTH AND SIXTH CIRCUITS, WE GRANTED CERTIORARI. 
414 U.S. 1111 (1973). 

    II 

THE ONLY ISSUE BEFORE US IS WHETHER 337 (A) HAS APPLICATION IN A
SITUATION WHERE, AS HERE, THE INVOLUNTARY CONVERSION OCCASIONED BY THE
FIRE PRECEDED THE ADOPTION OF THE PLAN OF COMPLETE LIQUIDATION.  /4/
THIS DEPENDS UPON WHETHER THE "SALE OR EXCHANGE," REFERRED TO IN 337
(A), TOOK PLACE WHEN THE FIRE OCCURRED OR ONLY AT SOME POSTPLAN POINT,
SUCH AS THE SUBSEQUENT SETTLEMENT OF THE INSURANCE CLAIMS, OR THEIR
PAYMENT. 

STATED SIMPLY, IT IS THE POSITION OF THE GOVERNMENT THAT THE FIRE
WAS A SINGLE DESTRUCTIVE EVENT THAT EFFECTED THE CONVERSION (AND,
THEREFORE, THE "SALE OR EXCHANGE") PRIOR TO THE ADOPTION OF THE PLAN OF
LIQUIDATION, THEREBY RENDERING 337 (A) INAPPLICABLE.  IT IS THE
POSITION OF THE TAXPAYER, ON THE OTHER HAND, THAT THE FIRE WAS NOT SUCH
A SINGLE DESTRUCTIVE EVENT AT ALL, BUT WAS ONLY THE INITIAL INCIDENT IN
A SERIES OF EVENTS--THE FIRE; THE PREPARATION AND FILING OF PROOFS OF
CLAIM; THEIR PRELIMINARY REJECTION; THE NEGOTIATION; ULTIMATE DOLLAR
AGREEMENT BY WAY OF SETTLEMENT; THE PREPARATION AND SUBMISSION OF FINAL
PROOFS OF CLAIM; THEIR FORMAL ACCEPTANCE; AND PAYMENT--THAT STRETCHED
OVER A PERIOD OF TIME AND CAME TO A MEANINGFUL CONCLUSION ONLY AFTER
THE ADOPTION OF THE PLAN, AND THAT, CONSEQUENTLY, 337 (A) IS
APPLICABLE. 

IN ORDER TO KEEP THIS NARROW ISSUE IN PERSPECTIVE, IT IS DESIRABLE
AND NECESSARY TO EXAMINE THE BACKGROUND AND THE HISTORY OF 337. 

A CORPORATION IS A TAXABLE ENTITY SEPARATE AND DISTINCT FROM ITS
SHAREHOLDERS.  ORDINARILY, A CAPITAL GAIN REALIZED BY THE CORPORATION
IS TAXABLE TO IT.  THE SHAREHOLDERS, OF COURSE, BENEFIT BY THAT
REALIZATION OF GAIN AND THE CONSEQUENT INCREASE IN THEIR CORPORATION'S
ASSETS.  THE VALUE OF THEIR SHARES, IN THEORY, IS THEREBY ENHANCED. 
THIS INCREMENT IN VALUE, HOWEVER, IS NOT TAXED AT THAT POINT TO THE
SHAREHOLDER.  HIS TAXABLE TRANSACTION OCCURS WHEN HE DISPOSES OF HIS
SHARES.  THE CAPITAL GAIN REALIZED BY THE CORPORATION, AND TAXED TO IT,
MAY BE SAID TO BE SUBJECT TO A "SECOND" TAX LATER, THAT IS, WHEN THE
SHAREHOLDER DISPOSES OF HIS SHARES.  THERE IS NOTHING UNUSUAL ABOUT
THIS.  IT IS A REALITY OF TAX LAW, AND IT IS DUE TO THE SEPARATENESS OF
THE CORPORATION AND THE SHAREHOLDER AS TAXABLE ENTITIES. 

THIS "DOUBLE TAX" POSSIBILITY TOOK ON TECHNICAL ASPECTS, HOWEVER,
WHEN THE CAPITAL GAIN WAS REALIZED AT ABOUT THE TIME OF, OR IN
CONNECTION WITH, A CORPORATION'S LIQUIDATION.  IF LIQUIDATION WAS
DEEMED TO HAVE TAKEN PLACE SUBSEQUENT TO THE SALE OR EXCHANGE, THERE
WAS A "SECOND"  TAX TO THE SHAREHOLDER IN ADDITION TO THE TAX ON THE
GAIN TO THE CORPORATION.  ON THE OTHER HAND, BECAUSE A CORPORATION
ITSELF REALIZES NO GAIN FOR INCOME TAX PURPOSES UPON THE MERE
LIQUIDATION AND DISTRIBUTION OF ITS ASSETS TO SHAREHOLDERS, 311 OF THE
1954 CODE, 26 U.S.C. 311; SEE GENERAL UTILITIES CO. V. HELVERING, 296
U.S. 200 (1935), IF THE LIQUIDATION WAS DEEMED TO HAVE PRECEDED THE
SALE OR EXCHANGE OF THE ASSET, THERE WAS NO "FIRST" TAX TO THE
CORPORATION.  THUS, THE TIMING OF THE GAIN TRANSACTION, IN RELATION TO
THE CORPORATION'S LIQUIDATION, HAD IMPORTANT TAX CONSEQUENCES.  SEE
GENERALLY B. BITTKER & J. EUSTICE, FEDERAL INCOME TAXATION OF
CORPORATIONS AND SHAREHOLDERS 11 - 53 (3D ED. 1971).  IN SHORT, BEFORE
337 CAME INTO THE INTERNAL REVENUE CODE, THE OVERALL INCOME TAX BURDEN
FOR THE LIQUIDATING CORPORATE TAXPAYER AND ITS SHAREHOLDERS WAS LESS IF
THE CORPORATION CLEARLY MADE ITS DISTRIBUTION OF ASSETS PRIOR TO THE
SALE OR EXCHANGE OF ANY OF THEM AT A GAIN. 

ALL THIS SEEMED SIMPLE AND STRAIGHTFORWARD.  THE APPLICATION OF THE
RULE, HOWEVER, AS FACT SITUTATIONS VARIED, ENGENDERED PROFOUND
CONFUSION WHICH WAS ENHANCED BY TWO DECISIONS BY COURT APPROXIMATELY 25
YEARS AGO.  IN COMMISSIONER V. COURT HOLDING CO., 324 U.S. 331 (1945),
THE COURT HELD THAT A LIQUIDATING CORPORATION COULD NOT ESCAPE TAXATION
ON THE GAIN REALIZED FROM THE SALE OF ITS SOLE ASSET IF THE CORPORATION
ITSELF HAD ARRANGED THE SALE PRIOR TO LIQUIDATION AND DISTRIBUTION OF
THE ASSET TO THE SHAREHOLDERS.  THIS WAS SO EVEN THOUGH THE SALE WAS
CONSUMMATED AFTER THE DISTRIBUTION.  SUBSEQUENTLY, IN UNITED STATES V.
CUMBERLAND PUBLIC SERVICE CO., 338 U.S. 451 (1950), THE COURT REACHED
EXACTLY THE OPPOSITE CONCLUSION IN A CASE WHERE THERE SHAREHOLDERS,
RATHER THAN THE CORPORATION, HAD NEGOTIATED THE SALE OF THE DISTRIBUTED
ASSETS AND, PRIOR TO THE CORPORATION'S LIQUIDATION, HAD BEEN IN TOUCH
WITH THE PURCHASER AND HAD OFFERED TO ACQUIRE THE PROPERTY AND SELL IT
TO THE PURCHASER.  MR. JUSTICE BLACK, WHO WROTE FOR A UNANIMOUS COURT
IN BOTH CASES, RECOGNIZED THAT "THE DISTINCTION BETWEEN SALES BY A
CORPORATION AS COMPARED WITH DISTRIBUTION IN KIND FOLLOWED BY
SHAREHOLDER SALES MAY BE PARTICULARLY SHADOWY AND ARTIFICIAL WHEN THE
CORPORATION IS CLOSELY HELD," ID., AT 454 - 455, BUT THE COURT,
NONETHELESS, DETERMINED THAT THE DISTINCTION WAS MANDATED BY THE CODE: 

     "THE ODDITIES IN TAX CONSEQUENCES THAT EMERGE FROM THE TAX

  PROVISIONS HERE CONTROLLING APPEAR TO BE INHERENT IN THE PRESENT

  TAX PATTERN.  FOR A CORPORATION IS TAXED IF IT SELLS ALL ITS

PHYSICAL PROPERTIES AND DISTRIBUTES THE CASH PROCEEDS AS

LIQUIDATING DIVIDENDS, YET IS NOT TAX IF THAT PROPERTY IS

 DISTRIBUTED IN KIND AND IS THEN SOLD BY THE SHAREHOLDERS.  IN

  BOTH INSTANCES THE INTEREST OF THE SHAREHOLDERS IN THE BUSINESS

  HAS BEEN TRANSFERRED TO THE PURCHASER.  . . CONGRESS HAVING

  DETERMINED THAT DIFFERENT TAX CONSEQUENCES SHALL FLOW FROM

  DIFFERENT METHODS BY WHICH THE SHAREHOLDERS OF A CLOSELY HELD

  CORPORATION MAY DISPOSE OF CORPORATE PROPERTY, WE ACCEPT ITS

  MANDATE."  ID., AT 455 - 456. 

THESE TWO CASES OBVIOUSLY CREATED A SITUATION WHERE THE TAX
CONSEQUENCES WERE DEPENDENT UPON THE RESOLUTION OF OFTEN INDISTINCT
FACTS AS TO WHETHER THE NEGOTIATIONS LEADING TO THE SALE HAD BEEN
CONDUCTED BY THE CORPORATION OR BY THE SHAREHOLDERS.  PARTICULARLY IN
THE CASE OF A CLOSELY HELD CORPORATION, WHERE THERE WAS LITTLE, IF ANY,
SIGNIFICANT DIFFERENCE BETWEEN MANAGEMENT AND OWNERSHIP, THIS
ANALYTICAL FORMALISM WAS UNSATISFACTORY AND, INDEED, WAS A TRAP FOR THE
UNWARY.  S. REP.NO. 1622, 83D CONG., 2D SES.  49 (1954); H.R. REP. NO.
1337, 83D CONG., 2D SESS., A106 (1954).  SEE CARY, THE EFFECT OF
TAXATION ON SELLING OUT A CORPORATE BUSINESS FOR CASH, 45 I11.  L. REV.
423 (1950). 

IT WAS IN DIRECT RESPONSE TO THE COURT HOLDING-CUMBERLAND CONFUSION
AND DISPARATE TREATMENT THAT CONGRESS PRODUCED 337 OF THE INTERNAL
REVENUE CODE OF 1954.  THE REPORT OF THE HOUSE COMMITTEE ON WAYS AND
MEANS ON THE BILL (H.R. 8300) WHICH BECAME THE 1954 CODE EXPLAINED THE
PURPOSE OF 337: 

     "YOUR COMMITTEE'S BILL ELIMINATES QUESTIONS ARISING AS A
RESULT

  OF THE NECESSITY OF DETERMINING WHETHER A CORPORATION IN PROCESS

  OF LIQUIDATING MADE A SALE OF ASSETS OR WHETHER THE SHAREHOLDER

  RECEIVING THE ASSETS MADE THE SALE.  COMPARE COMMISSIONER V.

  COURT HOLDING COMPANY (324 U.S. 331), WITH U.S. V. CUMBERLAND

  PUBLIC SERVICE COMPANY (338 U.S. 451).  THIS LAST DECISION

  INDICATES THAT IF THE DISTRIBUTEE ACTUALLY MAKES THE SALE AFTER

  RECEIPT OF THE PROPERTY THEN THERE WILL BE NO TAX ON THE SALE AT

  THE CORPORATE LEVEL.  IN ORDER TO ELIMINATE QUESTIONS RESULTING

  ONLY FROM FORMALITIES, YOUR COMMITTEE HAS PROVIDED THAT IF A

 CORPORATION IN PROCESS OF LIQUIDATION SELLS ASSETS THERE WILL BE

  NO TAX AT THE CORPORATE LEVEL, BUT ANY GAIN REALIZED WILL BE

  TAXED TO THE DISTRIBUTEE-SHAREHOLDER, AS ORDINARY INCOME OR

  CAPITAL GAIN DEPENDING ON THE CHARACTER OF THE ASSET SOLD."  H.R.

  REP. NO. 1337, 83D CONG., 2D SESS., 38 - 39 (1954). 

SEE ALSO ID., AT A106 - A109, WHERE IT WAS SAID, AT A106:  "YOUR
COMMITTEE INTENDS IN SECTION (337) TO PROVIDE A DEFINITIVE RULE WHICH
WILL ELIMINATE ANY UNCERTAINTY."  SEE S. REP. NO. 1622, 82D CONG., 2D
SESS., 48 - 49, 258 - 250 (1954).     THERE IS NOTHING IN THE
LEGISLATIVE HISTORY INDICATING THAT 337 WAS ENACTED IN ORDER TO
ELIMINATE "DOUBLE TAXATION"  AS SUCH.  RATHER, THE STATUTE WAS DESIGNED
TO ELIMINATE THE FORMALISTIC DISTINCTIONS RECOGNIZED AND PERHAPS
ENCOURAGED BY THE DECISIONS IN COURT HOLDING AND CUMBERLAND.  SEE
KOVEY, WHEN WILL SECTION 337 SHIELD FIRE LOSS PROCEEDS?  A CURRENT LOOK
AT A BURNING ISSUE, 39 J. TAXATION 258, 259 N. 2 (1973); NOTE, TAX-FREE
SALES IN LIQUIDATION UNDER SECTION 337, 76 HARV. L. REV. 780 (1963). 
SEE ALSO WEST STREET-ERIE BOULEVARD CORP. V. UNITED STATES, 411 F.2D
738, 740 - 741 (CA2 1969).  THE STATUTE WAS MEANT TO ESTABLISH A STRICT
BUT CLEAR RULE, WITH A SPECIFIED TIME LIMITATION, UPON WHICH PLANNERS
MIGHT RELY AND WHICH WOULD SERVE TO BRING CERTAINTY AND STABILITY INTO
THE CORPORATION LIQUIDATION AREA.  THE TAXPAYER HERE RECOGNIZES THIS
STATUTORY PURPOSE.  BRIEF FOR PETITIONER 6 - 7; TR. OF ORAL ARG. 3 -
4. 

INASMUCH AS 337 WAS DRAFTED TO MEET AND DEAL WITH THE COURT HOLDING
CUMBERLAND SITUATION, WHERE THERE HAD BEEN A SALE, THE STATUTE ON ITS
FACE RELATES ONLY TO "THE SALE OR EXCHANGE" OF PROPERTY.  IT IS NOT
SURPRISING, THERE FORE, THAT FURTHER CONFUSION RESULTED WHEN THE
INTERNAL REVENUE SEVICE FOUND ITSELF CONFRONTED BY LIQUIDATING
CORPORATE TAXPAYERS WHO SOUGHT 337 (A) TREATMENT FOR CASUALTY GAINS. 
FOLLOWING THE COURT'S DECISION IN HELVERING V. WILLIAM FLACCUS OAK
LEATHER CO., 313 U.S. 247 (1941), /5/  THE INTERNAL REVENUE SERVICE AT
FIRST REFUSED TO CONSIDER 337 AS APPLICABLE TO A CASUALTY SITUTATION AT
ALL.  REV. RUL. 56 - 372, 1956 - 2 CUM. BULL.  187.  WHEN THIS WAS
REJECTED IN THE COURTS, /6/  THE SERVICE REVERSED ITS POSITION AND
TREATED AN INVOLUNTARY CONVERSION THAT OCCURRED AFTER ADOPTION OF A
PLAN OF COMPLETE LIQUIDATION AS A "SALE OR EXCHANGE" WITH RESULTING
NONRECOGNITION.  REV. RUL. 64 - 100, 1961 - 1 CUM. BULL.  (PART I)
130. 

IT IS AT THIS POINT THAT THE ISSUE OF THE INSTANT CASE EMERGES AND
COMES INTO FOCUS.  ALTHOUGH IT IS NOW SETTLED THAT AN INVOLUNTARY
CONVERSION BY FIRE IS A SALE OR EXCHANGE UNDER 337 (A), THE QUESTION
THAT IS DETERMINATIVE HERE REMAINS UNRESOLVED:  WHEN DOES THE
INVOLUNTARY CONVERSION BY A PREPLAN FIRE TAKE PLACE?  SINCE THE STATUTE
PRESCRIBES A STRICT 12 MONTH POSTPLAN PERIOD, IT IS CRUCIAL FOR THE
TAXPAYER THAT THE CONVERSION BE DEEMED TO HAVE OCCURRED AFTER THE PLAN
OF LIQUIDATION WAS ADOPTED. 

        III 

PREDICTABLY, THE TAXPAYER ANALOGIZES THE INVOLUNTARY CONVERSION TO A
TRUE SALE, AND IT ARGUES THAT THE CONVERSION DOES NOT OCCUR UNTIL
SETTLEMENT IS REACHED AND THE INSURANCE OBLIGATIONS ARE FINALLY
DETERMINED AND PAID.  THIS ESSENTIALLY IS THE REASONING EMPLOYED IN THE
MORTON CASE. 

THERE IS NOTHING TO INDICATE THAT CONGRESS CONSIDERED THIS PROBLEM
WHEN 337 (A) WAS ADOPTED.  THE FACT THAT ATTENTION WAS INVARIABLY
FOCUSED ON AN ACTUAL SALE WOULD INDICATE THAT THE CASUALTY SITUTATION
WAS NOT LEGISLATIVELY ANTICIPATED.  TOWANDA TEXTILES, INC. V. UNITED
STATES, 149 CT. CL. 123, 129, 180 F. SUPP. 373, 376 (1960).  RECOURSE
TO LEGISLATIVE HISTORY, THERFORE, IS SOMEWHAT CIRCUMSTANTIAL IN
NATURE.  THERE IS HOWEVER, ONE GUIDING FACT, NAMELY, THE ABOVE
MENTIONED CLEAR PURPOSE OF CONGRESS, IN ITS ENACTMENT OF 337 (A), TO
AVOID THE COURT HOLDING-CUMBERLAND FORMALITIES. 

THE TAXPAYER'S ANALOGY TO THE ORDINARY SALE TRANSACTION HAS SOME
SUPERFICIAL APPEAL.  IT FAILS, HOWEVER, TO GIVE SUFFICIENT
CONSIDERATION TO THE UNDERLYING PURPOSE OF 337 (A).  TO BE SURE, UNDER
NORMAL CIRCUMSTANCES, A TRUE SALE IS NOT COMPLETE UNTIL THE MUTUAL
OBLIGATIONS (IF NOT THE PRECISE TERMS) ARE FIXED.  THE INTERNAL REVENUE
SERVICE HAS RECOGNIZED THIS EXPLICITLY IN THE REGULATIONS BY MAKING 337
(A) AVAILABLE WHERE A SALE IS NEGOTIATED BY THE CORPORATION PRIOR TO
THE ADOPTION OF THE PLAN BUT IS NOT COMPLETED UNTIL AFTER THE PLAN IS
ADOPTED.  TREAS. REG. 1.337 - 2 (A).  /7/  THIS MERELY ACKNOWLEDGES
THAT THE PARTIES ARE FREE TO AVOID AN EXECUTORY SALES CONTRACT UNTIL IT
IS MADE MADE FINAL.  IF THE TRANSACTION IS NOT COMPLETED UNTIL AFTER
THE PLAN OF LIQUIDATION IS ADOPTED, THE CORPORATION IS RIGHTFULLY
ENTITLED TO 337 (A) TREATMENT.  THIS RESULT IS FULLY CONSISTENT WITH
THE AIM OF CONGRESS TO AVOID THE FACTUAL DETERMINATION THAT LED TO THE
COURT HOLDING-CUMBERLAND DICHOTOMY.  THE FACT THAT THE CORPORATION AND
ITS SHAREHOLDERS ARE GIVEN THIS LIMITED OPPORTUNITY TO PLAN,
PRELIMINARY AND PRIOR TO LIQUIDATION, FOR DISPOSAL OF ASSETS DOES NOT
MEAN THAT THE CONGRESS INTENDED TO MAKE THIS OPPORTUNITY AVAILABLE IN
EVERY CONCEIVABLE FACT SITUATION. 

WITH A FIRE LOSS, THE OBLIGATION TO PAY ARISES UPON THE FIRE.  /8/
UNLIKE AN EXECUTORY CONTRACT TO SELL, THE CASUALTY CANNOT BE
RESCINDED.  DETAILS, INCLUDING EVEN THE BASIC QUESTION OF LIABILITY,
MAY BE CONTESTED, BUT THE FUNDAMENTAL CONTRACTUAL OBLIGATION THAT
PRECIPITATES THE TRANSFORMATION FROM TANGIBLE PROPERTY INTO A CHOSE IN
ACTION CONSISTING OF A CLAIM FOR INSURANCE PROCEEDS IS FIXED BY THE
FIRE.  ALTHOUGH THE PARTIES REMAIN FREE TO ARRIVE AT AN ACCEPTABLE
SETTLEMENT, THE OBLIGATION ITSELF HAS COME INTO BEING, AND IT IS THE
VALUE OF THE INSURED PROPERTY AT THAT POINT THAT GOVERNS THE CLAIM.  IN
OTHER WORDS, THE TERMS OF THE OBLIGATION CANNOT BE CHANGED UNILATERALLY
BY THE INSURER ONCE THE FIRE HAS OCCURRED. 

THE FACT THAT THE ULTIMATE EXTENT OF THE GAIN MAY NOT BE KNOWN OR
FINAL SETTLEMENT REACHED UNTIL SOME LATER TIME DOES NOT PREVENT THE
OCCURRENCE OF A "SALE OR EXCHANGE" EVEN IN THE CONTEXT OF A NORMAL
COMMERCIAL TRANSACTION.  SEE, E.G., BURNET V. LOGAN, 283 U.S. 404
(1931).  THE TAXPAYER'S EFFORTS TO DRAW AN ANALOGY TO A TRUE SALE IS
THEREFORE OF LIMITED UTILITY.  SEE NOTE, INVOLUNTARY CONVERSIONS AND
337 OF THE INTERNAL REVENUE CODE, 31 WASH. & LEE L. REV. 417, 427 - 428
(1974). 

WHEN THE CASUALTY OCCURS DURING THE 12-MONTH PERIOD AFTER THE PLAN
OF LIQUIDATION IS ADOPTED, 337 (A)'S APPLICABILITY FOLLOWS AS A MATTER
OF COURSE.  THE PRESENCE OF 337 (A) CREATES AN EXPECTATION IN THE
LIQUIDATING CORPORATION THAT IT WILL NOT BE TAXED ON GAINS FROM SALES
OR EXCHANGES OF CORPORATE ASSETS DURING THE 12-MONTH PERIOD.  THE
TAXPAYER CORPORATION THEN NEED NOT BE CONCERNED WITH THE FORMALITIES OF
SALE AND DISPOSAL IN ORDER TO AVOID TAX ON CAPITAL GAINS.  PUT ANOTHER
WAY, ONCE THE PLAN IS ADOPTED, CORPORATE PROPERTY IS COLORED WITH THE
REASONABLE EXPECTATION THAT IF IT IS SOLD OR EXCHANGED WITHIN 12
MONTHS, ANY RESULTING GAIN WILL NOT BE TAXED TO THE CORPORATION.  IT
FOLLOWS THAT IF, AFTER THE PLAN IS ADOPTED, PROPERTY IS DESTROYED BY
CASUALTY, WITH CONSEQUENT REPLACEMENT BY INSURANCE PROCEEDS, 337 (A)
TREATMENT IS AVAILABLE.  THE PROPERTY COLORED BY THE EXPECTATION HAS
BEEN REPLACED BY INSURANCE PROCEEDS. 

WHEN, HOWEVER, THE CASUALTY OCCURS PRIOR TO THE ADOPTION OF THE PLAN
AND THE CORPORATION'S COMMITMENT TO LIQUIDATE, NONE OF THESE
CONSIDERATIONS ATTACHES.  MOREOVER, THERE IS NOTHING IN THE PURPOSE OF
337 WHICH DICTATES THE EXTENSION OF ITS BENEFITS TO THIS PREPLAN
SITUATION.  BEFORE THE ADOPTION OF THE PLAN THE CORPORATION HAS NO
EXPECTATION OF AVOIDING TAX IF IT DISPOSES OF PROPERTY AT A GAIN.  THE
CORPORATION, OF COURSE, IS THE BENEFICIARY OF THE INSURANCE, AND BOTH
AT THE TIME THE POLICY IS EXECUTED AND AT THE TIME OF THE FIRE, THE
DESTROYED PROPERTY IS AN ASSET OF THE CORPORATION.  PRIOR TO THE
ADOPTION OF THE PLAN, 337 (A)'S "EXPECTATION" SIMPLY IS NOT PRESENT. 
FOR ALL PRACTICAL PURPOSES, THE DISPOSAL OF CENTRAL TABLET'S INSURED
PROPERTY OCCURRED AT THE TIME OF ITS FIRE.  AT THAT TIME THE TAXPAYER
POSSESSED ALL INCIDENTS OF OWNERSHIP.  IT HAD EVIDENCED NO INTENTION TO
LIQUIDATE.  THE FIRE WAS IRREMEDIABLE.  REGARDLESS OF THE FORMALITIES
AND NEGOTIATIONS THAT PREFACED THE ACTUAL INSURANCE SETTLEMENTS, THE
PROPERTY WAS PARTED WITH AT THE TIME OF ITS DESTRUCTION.  WHEN THE
CASUALTY OCCURS PRIOR TO THE CORPORATION'S COMMITTING ITSELF TO
LIQUIDATION, NO COURT HOLDING-CUMBERLAND PROBLEM IS PRESENTED. 

        IV 

THIS INTERPRETATION IS FULLY CONSISTENT WITH THE MANNER IN WHICH
CONDEMNATION, THE OTHER PRINCIPAL FOR OF INVOLUNTARY CONVERSION, IS
TREATED UNDER 337.  IN CONDEMNATION, THE LEGALLY OPERATIVE EVENT FOR
PURPOSES OF THE STATUTE IS THE PASSAGE OF TITLE UNDER FEDERAL OR STATE
LAW, AS THE CASE MAY BE, TO THE CONDEMNING AUTHORITY.  THIS MEANS THAT
IN MANY JURISDICTIONS THE "SALE OR EXCHANGE"  UNDER 337 (A) OCCURS
PRIOR TO THE DETERMINATION OF THE AMOUNT OF CONDEMNATION COMPENSATION
AND, INDEED, POSSIBLY WITHOUT ADVANCE WARNING TO THE CORPORATION
OWNER.  REV. RUL. 59 - 108, 1959 - 1 CUM. BULL.  72.  IT HAS BEEN
UNIFORMLY RECOGNIZED THAT A CORPORATE TAXPAYER MAY NOT AVAIL ITSELF OF
337 (A) WHERE ITS PLAN OF LIQUIDATION IS ADOPTED AFTER TITLE HAS PASSED
BY WAY OF CONDEMNATION EVEN WHERE NO SETTLEMENT AS TO CONDEMNATION
PRICE HAS BEEN REACHED OR WHERE THE CORPORATION HAD NO ADVANCE NOTICE
OF THE PROPOSED TAKING.  COVERED WAGON, INC. V. COMMISSIONER, 369 F.2D
629, 633 - 635 (CA8 1966); LIKINS-FOSTER HONOLULU CORP. V.
COMMISSIONER, 417 F.2D 285 (CA10 1969), CERT. DENIED, 397 U.S. 987
(1970); DWIGHT V. UNITED STATES, 328 F.2D 973 (CA2 1964); WENDELL V.
COMMISSIONER, 326 F.2D 600 (CA2 1964).  THE TAXPAYER'S POSITION HERE
WOULD FAVOR THE CASUALTY TAXPAYER OVER THE CONDEMNATION TAXPAYER. 

ALTHOUGH PERHAPS NOT AN EXACT PARALLEL, THE ONE DATE IN THE CASUALTY
LOSS SITUATION ANALOGOUS TO THE PASSAGE OF TITLE IN THE CONDEMNATION
CONTEXT IS THE DATE OF THE CASUALTY.  THE FIRE IS THE EVENT WHICH FIXES
THE LEGAL OBLIGATION TO PAY THE INSURANCE PROCEEDS.  AS WITH A
NONQUALIFYING PREPLAN CONDEMNATION, THE FIRE IS THE SINGLE IRREVOCABLE
EVENT OF SIGNIFICANCE, AND IT OCCURS WHEN TITLE AND CONTROL OVER THE
PROPERTY ARE IN THE CORPORATION.  THE CHOSE IN ACTION AGAINST THE
INSURER ARISES AT THAT TIME.  THIS IS UNLIKE THE EXECUTORY SALES
CONTRACT CONSUMMATED AFTER THE ADOPTION OF A PLAN; THERE, EITHER OF THE
PARTIES IS FREE UNILATERALLY TO AVOID WHATEVER PRELIMINARY AGREEMENT
HAD BEEN REACHED AT THE PRELIQUIDATION NEGOTIATIONS.  AS WITH
CONDEMNATION, THE INVOLUNTARY CHARACTER OF THE FIRE DISTINGUISHES IT
FROM THE NORMAL SALE, AND, AS WITH CONDEMNATION, FOR PURPOSES OF 337
(A), IT IS IRRELEVANT THAT THE PRECISE DOLLAR AMOUNT OF THE INSURER'S
OBLIGATION REMAINS UNCERTAIN.  IN THE CASUALTY SITUATION, THE OWNER OF
THE INSURED PROPERTY IS DEPRIVED OF ASPECTS OF OWNERSHIP WHEN THE FIRE
OCCURS IN MUCH THE SAME WAY AS THE OWNER OF CONDEMNED PROPERTY IS
DEPRIVED AT THE TIME TITLE PASSES.  IN EACH CASE THE TRIGGERING EVENT
IS INVOLUNTARY AND IRREVOCABLE.  BECAUSE OF THE STATUTORILY IMPOSED
CHRONOLOGY, THE EVENT OPERATES TO PREVENT THE CORPORATION'S RECEIVING
THE FAVORABLE TREATMENT OF 337 (A).  AS THE COURT HOLDING DECISION
EXEMPLIFIES, "THIS MAY APPEAR A HARSH RESULT, BUT IF IT IS TO BE
CORRECTED CONGRESS MUST ACT; THE COURTS HAVE NO POWER TO DO SO." 
DWIGHT V. UNITED STATES, 328 F.2D, AT 974. 

        V 

AGAIN, ALTHOUGH NOT PRECISELY PARALLEL AND CERTAINLY NOT
CONTROLLING, CONCLUDING THAT THE "SALE OR EXCHANGE" TAKES PLACE AT THE
TIME OF THE FIRE IS CONSISTENT WITH THE ACCEPTED METHOD FOR DETERMINING
THE HOLDING PERIOD OF DESTROYED PROPERTY IN THE ASCERTAINMENT OF ITS
LONG- OR SHORT-TERM CAPITAL GAIN OR LOSS CONSEQUENCES.  WHERE PROPERTY
IS DESTROYED, THE HOLDING PERIOD TERMINATES AT THE MOMENT OF
DESTRUCTION.  ROSE V. UNITED STATES, 229 F. SUPP. 298 (SD CAL. 1964);
STEELE V. UNITED STATES, 52 - 2 U.S. TAX CAS. 9451 (SD FLA. 1952); SEE
DRAPER, 32 T.C. 545, 548 - 549 (1959).  CF. COMMENT, EXTENDING SECTION
337 TO LIQUIDATIONS TRIGGERED BY THE INVOLUNTARY CONVERSION OF
CORPORATE ASSETS, 62 GEO. L.J. 1203, 1213 N. 55 (1974).  WERE WE TO
ACCEPT THE TAXPAYER'S ARGUMENT, WE WOULD BE LEFT WITH THE ANOMALOUS
SITUATION OF HAVING THE "SALE" TAKE PLACE AFTER THE HOLDING PERIOD HAS
TERMINATED FOR CAPITAL GAIN OR LOSS PURPOSES. 

 VI 

THE SITUATION PRESENTED BY THE INSTANT CASE HAS BEEN BROUGHT TO THE
ATTENTION OF CONGRESS WITH THE SUGGESTION THAT THE NONRECOGNITION
TREATMENT PROVIDED BY 337 (A) BE EXTENDED TO PREPLAN INVOLUNTARY
CONVERSIONS.  /9/  CONGRESS, HOWEVER, HAS NOT ACTED ON THIS
SUGGESTION.  IT, OF COURSE, HAS PROVIDED SOME TAX RELIEF TO THE VICTIM
OF A CASUALTY GAIN BY PERMITTING NONRECOGNITION OF THE GAIN IF THE
VICTIM-TAXPAYER USES THE PROCEEDS TO REPLACE THE DESTROYED PROPERTY IN
A SPECIFIED MANNER.  1033 (A) (3) OF THE 1954 CODE, 26 U.S.C. 1033 (A)
(3).  BUT CONGRESS HAS NEVER DISCLOSED AN INTENTION TO PERMIT THE
CORPORATE VICTIM OF A CASUALTY WITH ENSUING GAIN TO HAVE THE OPTION OF
LIQUIDATING AFTER THE CASUALTY OCCURS AND OBTAINING THE BENEFIT OF
NONRECOGNITION UNDER 337 (A).  IF THIS IS DESIRABLE POLICY, IT IS FOR
THE CONGRESS, NOT THE COURTS, TO EFFECTUATE.  THE FACT THAT A TAX
ORIENTED AND TAX-KNOWLEDGEABLE CORPORATION IN THEORY COULD UTILIZE 1033
(A) (3) AND REBUILD WITH ITS INSURANCE PROCEEDS WITHOUT BEING TAXED FOR
THE GAIN, AND THEN ADOPT A PLAN OF LIQUIDATION, SURELY DOES NOT CHANGE
THE RESULT.  TAX CONSEQUENCES FOLLOW WHAT HAS TAKEN PLACE, NOT WHAT
MIGHT HAVE TAKEN PLACE.  COMMISSIONER V. NATIONAL ALFALFA DEHYDRATING &
MILLING CO., 417 U.S. 134, 148 - 149 (1974). 

HAD CONGRESS ENACTED 337 FOR THE AVOWED PURPOSE OF FREEING A
CORPORATION FORM TAX ON GAINS WHENEVER IT DECIDES TO LIQUIDATE, THE
RESULT HERE MIGHT WELL BE DIFFERENT.  SECTION 337, HOWEVER, WAS NOT
DESIGNED TO ACCOMPLISH THAT BROAD RESULT.  AS HAS BEEN NOTED, 337 WAS
DESIGNED FOR THE LIMITED PURPOSE OF AVOIDING THE TECHNICAL AND
FORMALISTIC DETERMINATION OF CONTROL AS BETWEEN THE CORPORATION AND THE
SHAREHOLDERS.  BY THE ENACTMENT OF 337 (A), THE BENEFIT OF ANY EXISTING
DOUBT IN THAT CONTEXT WAS GIVEN TO THE CORPORATE TAXPAYER.  BUT 337 (A)
IS NARROWLY AND SPECIFICALLY DRAWN.  IT APPLIES ONLY TO A COMPLETE
LIQUIDATION AND THEN ONLY TO ONE FULLY ACCOMPLISHED IN A SPECIFIED
SHORT TIME.  IT HAS NO APPLICATION TO A SALE OR EXCHANGE BEFORE THE
ADOPTION OF THE PLAN OR TO ONE MORE THAN 12 MONTHS AFTER THE ADOPTION. 
IF THE STATUTE'S PRECISE CONDITIONS ARE NOT FULFILLED, THE TAX
CONSEQUENCES THAT NORMALLY PREVAIL WILL ENSUE.  INDEED, THE STATUTE IS
NOT ALWAYS BENEFICIAL, FOR IT OPERATES TO MAKE A LOSS AS WELL AS A GAIN
ON THE SALE OR EXCHANGE NONRECOGNIZABLE.     THE JUDGMENT OF THE COURT
OF APPEALS IS AFFIRMED. 

       IT IS SO ORDERED. 

/1/  "337.  GAIN OR LOSS ON SALES OR EXCHANGES IN CONNECTION WITH
CERTAIN LIQUIDATIONS.     "(A) GENERAL RULE. 

"IF--, 

"(1) A CORPORATION ADOPTS A PLAN OF COMPLETE LIQUIDATION ON OR AFTER
JUNE 22, 1954, AND 

"(2) WITHIN THE 12 MONTH PERIOD BEGINNING ON THE DATE OF THE
ADOPTION OF SUCH PLAN, ALL OF THE ASSETS OF THE CORPORATION ARE
DISTRIBUTED IN COMPLETE LIQUIDATION, LESS ASSETS RETAINED TO MEET
CLAIMS, "THEN NO GAIN OR LOSS SHALL BE RECOGNIZED TO SUCH CORPORATION
FROM THE SALE OR EXCHANGE BY IT OF PROPERTY WITHIN SUCH 12-MONTH
PERIOD."  26 U.S.C. 337 (A). 

/2/  THE DEFICIENCIES, INCLUDING INTEREST, AMOUNTED TO $70,051.30
FOR FISCAL 1965 AND $11,930.30 FOR FISCAL 1963. 

/3/  KINNEY V. UNITED STATES, 73 - 1 U.S. TAX CAS. 9140 (ND CAL.
1972), DECIDED BEFORE THE SIXTH CIRCUIT'S RULING IN THE PRESENT CASE,
AND NOW ON APPEAL TO THE NINTH CIRCUIT, ALSO FOLLOWED MORTON.  THE
CORPORATE TAXPAYER IN KINNEY WAS ON THE ACCRUAL BASIS. 

/4/  BECAUSE THE DISTRICT COURT RULED THAT 337 (A) HAD APPLICATION
TO CENTRAL TABLET'S SITUATION, THERE WAS NO OCCASION FOR IT TO
DETERMINE IN WHAT TAXABLE YEAR THE GAIN TO THE CORPORATION ACCRUED IF
IT WERE ULTIMATELY DECIDED THAT 337 (A) WAS NOT APPLICABLE.  THAT
QUESTION REMAINS FOR RESOLUTION UPON REMAND.  WE INTIMATE NO VIEW AS TO
THAT ISSUE.  SEE GENERALLY 2 J. MERTENS, LAW OF FEDERAL INCOME TAXATION
12.65 AND P. 236 (MALONE REV. 1967). 

/5/  IN FLACCUS THE COURT HELD THAT FIRE INSURANCE PROCEEDS DID NOT
RESULT IN GAIN FROM A "SALE OR EXCHANGE" OF CAPITAL ASSETS WITHIN THE
MEANING OF 117 (D) OF THE REVENUE ACT OF 1934, 48 STAT. 715.  THIS
RESULT WAS OVERCOME STATUTORILY BY THE ENACTMENT OF 151 (B) OF THE
REVENUE ACT OF 1942, 56 STAT. 846, NOW CARRIED OVER INTO 1231 (A) OF
THE 1954 CODE, 26 U.S.C. 1231 (A). 

/6/  TOWANDA TEXTILES, INC. V. UNITED STATES, 149 CT CL. 123, 180 F.
SUPP. 373 (1960); KENT MFG. CORP. V. COMMISSIONER, 288 F.2D 812 (CA4
1961).  IN EACH OF THESE CASES THE COURT RELIED UPON THE FLACCUS
INSPIRED STATUTORY AMENDMENT, REFERRED TO IN THE PRECEDING FOOTNOTE,
FOR ITS CONCLUSION THAT AN INVOLUNTARY CONVERSION WAS COVERED BY 337
(A).  IN TOWANDA THE COURT OF CLAIMS PERMITTED 337 (A) TREATMENT WHERE
BOTH THE FIRE AND THE SETTLEMENT OCCURRED DURING THE 12-MONTH PERIOD
FOLLOWING THE ADOPTION OF THE PLAN OF LIQUIDATION.  IT OBSERVED, "IT IS
NOT CONCEIVABLE THAT CONGRESS WOULD HAVE DRAWN A DISTINCTION BETWEEN A
GAIN FROM A VOLUNTARY CONVERSION AND AN INVOLUNTARY ONE, HAD THE
POSSIBILITY OF AN INVOLUNTARY CONVERSION DURING LIQUIDATION COME TO ITS
ATTENTION" (EMPHASIS SUPPLIED).  149 CT. CL., AT 129, 180 F. SUPP., AT
376.  IN KENT, THE FOURTH CIRCUIT DISALLOWED 337 (A) TREATMENT WHERE
BOTH THE FIRE AND THE SETTLEMENT TOOK PLACE PRIOR TO THE ADOPTION OF A
PLAN OF LIQUIDATION.  288 F.2D, AT 816.  (IT UPHELD THAT TAXPAYER'S
ARGUMENT, HOWEVER, THAT THE CASUALTY GAIN THERE SUSTAINED WAS ENTITLED
TO NONRECOGNITION SPECIALLY PROVIDED UNDER 392 (B) OF THE 1954 CODE.) 
NEITHER CASE PRESENTED THE FACTUAL SEQUENCE OF THE CASE BEFORE US. 

/7/  THE REGULATIONS MAKE THE DATE OF THE SALE DEPENDENT "PRIMARILY
UPON THE INTENT OF THE PARTIES TO BE GATHERED FROM THE TERMS OF THE
CONTRACT AND THE SURROUNDING CIRCUMSTANCES."  1.337 - 2 (A).  THEY
PROVIDE THAT AN "EXECUTORY CONTRACT TO SELL IS TO BE DISTINGUISHED FROM
A CONTRACT OF SALE."  THIS DISTINCTION RECOGNIZES THE SIGNIFICANCE OF
THE POINT IN TIME WHERE THE PARTIES CAN NO LONGER OPT OUT OF A
TRANSACTION.  CERTAINLY, A FIRE INSURER HAS NO RIGHT TO OPT OUT OF ITS
COVERAGE AND BASIC LIABILITY AFTER THE FIRE TAKES PLACE; IN THIS
RESPECT, THE EXECUTORY CONTRACT SITUATION REFERRED TO IN THE
REGULATIONS IS DISTINGUISHABLE. 

/8/  FOR TAX PURPOSES, THE FORMALITY OF FILING A PROOF OF CLAIM
USUALLY DOES NOT CHANGE THE SUBSTANCE OF THIS CONCLUSION.  IN ANY
EVENT, THE FORMALITIES WERE OBSERVED HERE.  THE INSURER'S ADJUSTER WAS
IN ATTENDANCE EVEN WHILE THE FIRE WAS IN PROGRESS.  APP. 42.  NOTICE
WAS IMMEDIATELY GIVEN THE INSURANCE COMPANIES AND PROOFS OF LOSS WERE
PROMPTLY SUBMITTED.  ID., AT 13 - 14.  NEGOTIATIONS BEGAN WITHIN A
MONTH.  THE ADJUSTERS, IN MAKING THE NOT UNCOMMON REJECTION OF INITIAL
PROOFS OF CLAIM, DENIED THE EXTENT, BUT HARDLY THE FACT, OF COVERAGE. 
ID., AT 14 - 15. 

/9/  IN 1959 THE ADVISORY GROUP MADE THE FOLLOWING RECOMMENDATION TO
THE HOUSE COMMITTEE ON WAYS AND MEANS: 

"THE ADVISORY GROUP CONSIDERS IT APPROPRIATE AND DESIRABLE TO EXTEND
THE NONRECOGNITION TREATMENT PROVIDED BY SECTION 337 (A) TO ALL
INVOLUNTARY CONVERSIONS.  SINCE AN INVOLUNTARY CONVERSION CANNOT BE
FORESEEN AND IT IS IMPRACTICAL TO REQUIRE ADOPTION OF THE LIQUIDATION
PLAN ON OR BEFORE THE DAY OF THE CONVERSION, IT IS PROPOSED, AS TO SUCH
CONVERSIONS, TO RELAX THE STRICT REQUIREMENTS OF THE SECTION WITH
RESPECT TO THE TIME OF ADOPTION OF THE LIQUIDATION PLAN.  SINCE THE
TIME OF RECEIPT OF THE PROCEEDS OF AN INVOLUNTARY CONVERSION MAY DEPEND
ON FACTORS BEYOND THE CONTROL OF THE CORPORATION AND RECEIPT WITHIN A
12-MONTH PERIOD IS OFTEN IMPOSSIBLE, IT IS PROPOSED ALSO TO RELAX THE
DISTRIBUTION REQUIREMENTS WITH RESPECT TO SUCH CONVERSIONS. 
ACCORDINGLY, IT IS RECOMMENDED THAT AN INVOLUNTARY CONVERSION WITHIN
THE MEANING OF SECTION 1033 BE CONSIDERED A SALE OR EXCHANGE FOR
PURPOSES OF SECTION 337, AND THAT THE REQUIREMENTS OF PARAGRAPH (1) (B)
REGARDING THE TIME OF DISTRIBUTION, AND THE REQUIREMENT OF PARAGRAPH
(1) THAT THE SALE OR EXCHANGE OCCUR WITHIN THE 12-MONTH PERIOD REFERRED
TO THEREIN, BE CONSIDERED SATISFIED IF SUCH 12-MONTH PERIOD BEGINS NOT
LATER THAN 60 DAYS AFTER THE DISPOSITION OF THE CONVERTED PROPERTY, AS
DEFINED IN SECTION 1033 (A) (2), AND THE PROCEEDS OF THE CONVERSION ARE
DISTRIBUTED WITHIN SUCH 12-MONTH PERIOD OR WITHIN 60 DAYS AFTER THE
RECEIPT THEREOF BY THE CORPORATION, WHICHEVER IS LATER."  HEARINGS ON
ADVISORY GROUP RECOMMENDATIONS ON SUBCHAPTERS C, J, AND K OF THE
INTERNAL REVENUE CODE BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS,
86TH CONG., 1ST SESS., 532 (1959).  IT IS TRUE THAT THIS RECOMMENDATION
WAS MADE BEFORE THE INTERNAL REVENUE SERVICE HAD RECOGNIZED A CASUALTY
AS A "SALE OR EXCHANGE," WITHIN THE LANGUAGE OF 337 (A), AND THAT THE
SERVICE HAS ADOPTED AT LEAST PART OF THE RECOMMENDATION WITHOUT
CONGRESSIONAL ACTION.  NONETHELESS, THE ADVISORY GROUP CLEARLY
RECOGNIZED THAT EVEN IF THE INVOLUNTARY CONVERSION WERE A "SALE OR
EXCHANGE,"  337 (A) DID NOT REACH THE CONVERSION THAT OCCURRED PRIOR TO
THE ADOPTION OF THE PLAN OF LIQUIDATION, AND IT PROPOSED "TO RELAX THE
STRICT REQUIREMENTS OF THE SECTION" WITH RESPECT THERETO. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE POWELL JOIN, DISSENTING. 

ORDINARILY, GAIN FROM THE SALE OF CORPORATE PROPERTY IS TAXED TO THE
CORPORATION.  UNDER 26 U.S.C. 337, HOWEVER, GAIN FROM A SALE OR
EXCHANGE OCCURRING WITHIN 12 MONTHS AFTER THE ADOPTION OF A PLAN OF
LIQUIDATION IS NOT RECOGNIZED OR TAXED TO THE CORPORATION.  CONCEDEDLY,
THE SECTION APPLIES TO GAIN FROM INVOLUNTARY CONVERSIONS SUCH AS FIRE
LOSSES COMPENSATED BY INSURANCE, AS LONG AS THE EVENT QUALIFYING AS THE
SALE OR EXCHANGE TAKES PLACE AFTER, RATHER THAN BEFORE, THE ADOPTION OF
A PLAN OF LIQUIDATION.  AS THE COURT INDICATES, THE SOLE ISSUE IN THIS
CASE IS WHEN THE SALE OR EXCHANGE OCCURRED. 

HERE, THE FIRE TOOK PLACE ON SEPTEMBER 10, 1965.  THE PLAN OF
LIQUIDATION WAS ADOPTED UNTIL MAY 14, 1966.  BUT THE DESTROYED PROPERTY
WAS INSURED, AND THE INSURANCE CLAIMS WERE FINALLY NEGOTIATED, SETTLED,
AND PAID AFTER MAY 14, 1966.  THE COURT HOLDS THAT THE SALE OR EXCHANGE
TOOK PLACE AT THE TIME OF THE FIRE; FOR IN ITS VIEW, IT WAS THE FIRE
THAT TRANSFORMED "TANGIBLE PROPERTY INTO A CHOSE IN ACTION CONSISTING
OF A CLAIM FOR INSURANCE PROCEEDS . . . ."  ANTE, AT 685. 

I DISAGREE.  THAT THE FIRE GAVE THE COMPANY A CLAIM UNDER ITS
INSURANCE POLICIES DOES NOT MEAN THAT THE INVOLUNTARY CONVERSION
QUALIFYING AS A SALE OR EXCHANGE TOOK PLACE AT THAT MOMENT.  IT IS MY
VIEW THAT SUCH A CLAIM DOES NOT RIPEN INTO A SALE OR EXCHANGE UNTIL IT
HAS ATTAINED A SUFFICIENTLY DEFINITE QUALITY AND VALUE TO REQUIRE THE
GAIN OR LOSS TO BE ACCUED ON THE BOOKS OF AN ACCRUAL-BASIS TAXPAYER. 
IT IS PLAN ENOUGH FOR ME THAT NO GAIN WAS ACCRUABLE BY CENTRAL TABLET
UNTIL AFTER MAY 14, 1966, AND THAT THE SALE OR EXCHANGE THEREFORE TOOK
PLACE AFTER RATHER THAN BEFORE THE ADOPTION OF THE LIQUIDATION PLAN. 

THE GENERAL RULE IS THAT "(THERE SHALL BE ALLOWED AS A DEDUCTION ANY
LOSS SUSTAINED DURING THE TAXABLE YEAR AND NOT COMPENSATED FOR BY
INSURANCE OR OTHERWISE."  26 U.S.C. 165 (A).  WITHOUT DOUBT, HAD THERE
NOT BEEN INSURANCE IN THIS CASE, CENTRAL TABLET WOULD HAVE SUFFERED A
DEDUCTIBLE LOSS FROM THE FIRE AND THAT DEDUCTION WOULD HAVE BEEN TAKEN
IN THE YEAR THE FIRE OCCURRED.  THE ORDINARY RULE ALSO IS, HOWEVER,
THAT DEDUCTIBLE LOSSES MUST BE EVIDENCED BY CLOSED AND COMPLETED
TRANSACTIONS AND FIXED BY IDENTIFIABLE EVENTS.  BOEHM V. COMMISSIONER,
326 U.S. 287, 291 (1945).  IN THE CONTEXT OF AN INSURED FIRE LOSS,
WHERE RECOVERY OF INSURANCE IS UNCERTAIN OR UNREALISTIC THE LOSS IS TO
BE TAKEN IN THE YEAR IT OCCURS.  COASTAL TERMINALS, INC. V.
COMMISSIONER, 25 T.C. 1053 (1956); CAHN V. COMMISSIONER, 92 F.2D 674
(CA9 1937).  BUT IF THERE IS A FAIR PROSPECT OF RECOVERING INSURANCE
PROCEEDS, THE LOSS IS TO BE POSTPONED UNTIL THE QUESTION OF RECOVERY IS
SUFFICIENTLY SETTLED.  COMMISSIONER V. HARWICK, 184 F.2D 835 (CA5
1950); BOSTON & M.R. CO. V. COMMISSIONER, 206 F.2D 617 (CA1 1953);
JEFFREY V. COMMISSIONER, 12 T.C.M. 534 (1953).  /1/ 

SIMILAR PRINCIPLES APPLY TO DETERMINE WHEN AN ACCRUAL-BASIS TAXPAYER
REALIZES INCOME WHEN AN INSURED FIRE LOSS RESULTS IN TAXABLE GAIN. 
UNDER GENERAL PRINCIPLES OF ACCRUAL ACCOUNTING, TWO CONDITIONS MUST BE
MET FOR INCOME TO BE ACCUED IN A GIVEN TAXABLE YEAR: THE TAXPAYER MUST
HAVE A CLEAR RIGHT TO THE INCOME, AND THE QUANTUM OF THE INCOME MUST BE
ASCERTAINABLE WITHIN REASONABLE LIMITS.  UNITED STATES V. ANDERSON, 269
U.S. 422, 441 (1926); CONTINENTAL TIE & LUMBER CO. V. UNITED STATES,
286 U.S. 290, 297 (1932); DIXIE PINE CO V. COMMISSIONER, 320 U.S. 516,
519 (1944).  "IT HAS LONG BEEN HELD THAT IN ORDER TRULY TO REFLECT THE
INCOME OF A GIVEN YEAR, ALL THE EVENTS MUST OCCUR IN THAT YEAR WHICH
FIX THE AMOUNT AND THE FACT OF THE TAXPAYER'S LIABILITY.  . . ."  IBID.
THESE TWIN CONDITIONS HAVE BEEN FORMALIZED BY TREAS.  REG. 1.451 - 1
(A), WHICH PROVIDES IN RELEVANT PART: 

"UNDER AN ACCRUAL METHOD OF ACCOUNTING, INCOME IS INCLUDABLE IN
GROSS INCOME WHEN ALL THE EVENTS HAVE OCCURRED WHICH FIX THE RIGHT TO
RECEIVE SUCH INCOME AND THE AMOUNT THEREOF CAN BE DETERMINED WITH
REASONABLE ACCURACY.  . . ." 

THESE ARE THE GOVERNING PRINCIPLES WHEN THE ISSUE IS WHETHER INCOME
FROM CERTAIN INSURANCE POLICIES COVERING BUSINESS OR PERSONAL LOSS HAD
ACCRUED TO THE TAXPAYER.  THUS, WHERE AN INSURANCE COMPANY DOES NOT
ADMIT LIABILITY IN THE YEAR OF THE LOSS, OR TAKES A POSITION IN
NEGOTIATIONS WHICH MAKES IT QUITE UNCERTAIN WHETHER THE BULK OF THE
CLAIM WILL BE RECOVERABLE, ACCRUAL IS IMPROPER.  /2/  ALTHOUGH IT MAY
GENERALLY BE TRUE THAT TAXPAYERS SEEK TO DELAY REPORTING INCOME, THIS
MAY NOT BE SO WHEN THERE ARE LARGE LOSSES IN THE YEAR OF THE COVERSION
TO ABSORB THE INSURANCE INCOME.  IN THAT SITUATION, THE COMMISSIONER
MAY ADVOCATE THAT ACCRUAL IN THE YEAR OF THE LOSS IS IMPROPER.  SEE E.
T. SLIDER, INC. V. COMMISSIONER, 5 T.C. 263 (1945) (ACCRUAL IMPROPER IN
YEAR OF LOSS BECAUSE COLLECTIBILITY OF INSURANCE PROCEEDS DOUBTFUL). 
THE PRINCIPLES OF ACCRUAL ACCOUNTING ARE DESIGNED TO BE NEUTRAL, SO
THAT THE TAXPAYER MAY NOT TIME HIS GAINS AND LOSSES IN INCONSISTENT
FASHION TO MINIMIZE HIS TAX LIABILITY. 

IF NORMAL ACCRUAL-ACCOUNTING PRINCIPLES WERE TO BE APPLIED IN THIS
CASE, IT IS CLEAR THAT WHATEVER THE DATE ON WHICH INCOME ACCRUED TO THE
CORPORATION, IT WOULD NOT BE THE DATE OF THE FIRE, AS THE COURT OF
APPEALS HELD.  AT LEAST SOME PERIOD OF TIME, HOWEVER SHORT, MUST BE
ALLOWED FOR THE TAXPAYER TO DETERMINE THE EXTENT OF LOSS AND TO FILE A
TIMELY PROOF-OF-LOSS FORM WITH THE INSURER.  CF. THALHIMER BROS. V.
COMMISSIONER, 27 T.C. 733 (1957).  THE QUESTION THEN BECOMES WHETHER
THE AMOUNT SHOULD HAVE ACCRUED PRIOR TO OR DURING THE 12-MONTH PERIOD
BEGINNING ON MAY 14, 1966, THE DATE ON WHICH THE LIQUIDATION PLAN WAS
ADOPTED.  THIS IS LARGELY A FACTUAL QUESTION, DEPENDING ON WHETHER
LIABILITY WAS ACKNOWLEDGED, AND WHETHER THE AMOUNT OF LIABILITY WAS
REASONABLY ASCERTAINABLE BEFORE OR AFTER THE ADOPTION OF THE PLAN. 

AS TO THE ISSUE OF LIABILITY, THERE WAS SOME DISAGREEMENT BETWEEN
THE DISTRICT COURT AND THE COURT OF APPEALS.  THE DISTRICT COURT FOUND
THAT "(AT NO TIME WAS AN EXPRESS ADMISSION OF LIABILITY MADE BY
TAXPAYER'S INSURANCE ADJUSTERS.  INDEED, THERE IS SOME EVIDENCE IN THE
RECORD THAT THE INSURANCE COMPANIES DENIED THAT NOTICE OF CLAIM WAS
PROPERLY GIVEN."  339 F. SUPP., AT 1139.  THE DISTRICT COURT FURTHER
FOUND THAT EVEN IF LIABILTY HAD BEEN ADMITTED AT SOME POINT, THERE WAS
INSUFFICIENT EVIDENCE IN THE RECORD TO DETERMINE AT WHAT POINT THAT
ADMISSION OCCURRED, EVEN THOUGH THAT SUBJECT HAD BEEN EXPLORED AT
TRIAL.  THE COURT OF APPEALS, ON THE OTHER HAND, BELIEVED THAT "THE
INSURANCE CARRIER QUESTIONED NEITHER THE VALIDITY OF THE INSURANCE
CONTRACTS NOR THE FULFILLMENT OF THE CONDITIONS FOR PAYMENT
THEREUNDER.  . . ."  481 F.2D, AT 956.     HOWEVER, EVEN ACCEPTING THE
VIEW OF THE COURT OF APPEALS THAT LIABILITY WAS NOT AT ISSUE, BOTH
COURTS FOUND THAT THE AMOUNT OF LIABILITY WAS SUBJECT TO DISPUTE AND
NEGOTIATION.  A NUMBER OF ISSUES DIVIDED THE PARTIES THROUGHOUT THE
NEGOTIATIONS ON THE EXTENT OF COVERAGE.  NEGOTIATIONS OF CENTRAL
TABLET'S CLAIM FOR BUSINESS INTERRUPTION LOSS BEGAN ON APPROXIMATELY
OCTOBER 8, 1965.  DISPUTES SUBSEQUENTLY AROSE OVER THE ESTIMATED PERIOD
OF LOSS TO BE COVERED AND THE PROBABLE DURATION OF THE STRIKE HAD THERE
NOT BEEN A FIRE, FOR THE PURPOSE OF DETERMINING THE "ACTUAL LOSS
SUSTAINED."  NO SETTLEMENT ON THIS CLAIM WAS NEGOTIATED UNTIL AUGUST
25, 1967, AND, ON OR ABOUT SEPTEMBER 22, 1967, PETITIONER RECEIVED
PAYMENT OF $67,000, AS COMPARED WITH THE MAXIMUM OF $200,000 AVAILABLE
UNDER TWO POLICIES, WHICH REPRESENTED PETITIONER'S INITIAL REQUEST IN
THE NEGOTIATIONS. 

NEGOTIATION OF THE BUILDING, MACHINERY, AND PERSONAL PROPERTY LOSS
CLAIMS BEGAN ON APPROXIMATELY NOVEMBER 1, 1965.  ON THE BUILDING
INSURANCE POLICIES, DISPUTE FOCUSED ON A CO-INSURANCE CLAUSE.  /3/  THE
DISTRICT COURT FOUND THAT THE QUESTIONS OVER THE APPLICABILITY OF THE
CLAUSE WOULD REDUCE PETITIONER'S COVERAGE BY 43% IF THE INSURANCE
COMPANIES PREVAILED.  THE PARTIES ALSO DISAGREED AS TO THE EXTENT OF
BUILDING LOSS AND THE VALUE OF THE BUILDING AT THE TIME OF THE LOSS. 
CENTRAL TABLET ACCEPTED A SETTLEMENT OF ITS CLAIM ON APPROXIMATELY MAY
20, 1966, AND, ON JUNE 15, 1966, RECEIVED $174,595.05 IN PAYMENT, AS
COMPARED WITH THE $225,000 STATED MAXIMUM. 

THE DISTRICT COURT STATED THAT THESE NEGOTIATIONS WERE "EXCEEDINGLY
COMPLEX AND DIFFICULT," AND "(IN EACH CASE, SUBSTANTIAL DISCREPANCIES
EXISTED BETWEEN THE INITIAL OFFERS MADE BY THE INSURANCE COMPANIES, THE
MAXIMUM PERMISSIBLE COVERAGE, AND THE AMOUNTS ULTIMATELY NEGOTIATED." 
339 F. SUPP., AT 1139.  DUE TO THE FACTUAL RECORD BEFORE IT, THE
DISTRICT COURT CONCLUDED THAT THE INSURANCE PROCEEDS DID NOT ACCRUE
UNTIL AFTER THE PLAN HAD BEEN ADOPTED.  THE COURT STATED THAT "IT WOULD
BE AN UTTER FICTION FOR US TO CONCLUDE THAT THE TAXPAYER REALIZED FIXED
AND ESTIMABLE INCOME BEFORE IT ADOPTED A PLAN OF LIQUIDATION.  . ." 
IBID.  THE COURT OF APPEALS ALSO RECOGNIZED THAT THERE WAS A DISPUTE
OVER THE AMOUNT TO BE PAID UNDER EACH POLICY.  THE FACTUAL FINDINGS OF
THE DISTRICT COURT WERE CONSISTENT WITH THE WELL-SETTLED RULE THAT
ACCRUAL IS ONLY REQUIRED WHEN THE QUANTUM OF INCOME IS ASCERTAINABLE
WITHIN REASONABLE LIMITS.  ON THE TWO INSURANCE POLICIES AT ISSUE HERE,
THE AMOUNTS RECEIVED, $174,000 ON THE BUILDING POLICY AND $104,000 ON
THE PERSONAL PROPERTY POLICY, COMPARED WITH STATED MAXIMUMS OF $225,000
AND $450,000, RESPECTIVELY.  THESE DISCREPANCIES BOLSTER THE DISTRICT
COURT'S CONCLUSION THAT THERE WERE SUBSTANTIAL DISAGREEMENTS BETWEEN
THE PARTIES. 

THE GENERAL RULE IS THAT "(TAXABLE INCOME SHALL BE COMPUTED UNDER
THE METHOD OF ACCOUNTING ON THE BASIS OF WHICH THE TAXPAYER REGULARLY
COMPUTES HIS INCOME IN KEEPING HIS BOOKS."  26 U.S.C. 446.  CENTRAL
TABLET WAS AN ACCRUAL-BASIS TAXPAYER, AND IT IS CLEAR THAT THE AMOUNT
OF THE INSURANCE PROCEEDS WAS NOT ASCERTAINABLE WITH REASONABLE
CERTAINTY UNTIL AFTER MAY 14, 1966.  NO GAIN WAS ACCRUABLE PRIOR TO
THAT DATE, AND THE DISTRICT COURT WAS CLEARLY RIGHT IN HOLDING THAT
THERE HAD BEEN NO VOLUNTARY CONVERSION AND NO SALE OR EXCHANGE PRIOR TO
THE ADOPTION OF THE PLAN OF LIQUIDATION.  ABSENT THE INSURANCE POLICY,
THERE COULD HAVE BEEN ONLY A CASUALTY LOSS, NO "INVOLUNTARY CONVERSION"
AND NO "SALE OR EXCHANGE."  AND WITH THE VARIOUS INSURANCE POLICIES
OWNED BY THE TAXPAYER, THE CONVERSION INTO CASH IN AN AMOUNT REASONABLY
ASCERTAINABLE DID NOT BECOME SUFFICIENTLY PREDICTABLE UNTIL AFTER MAY
14, 1966. 

TO ME, THE GOVERNMENT'S POSITION IN THIS CASE IS ANOMALOUS. 
ALTHOUGH IN ARGUING THAT THE "SALE OR EXCHANGE" MUST BE DEEMED TO HAVE
OCCURRED ON THE DATE OF THE FIRE, IT WAS SUGGESTED BY THE GOVERNMENT IN
THE COURT OF APPEALS THAT IF THE ISSUE WERE DECIDED IN FAVOR OF THE
GOVERNMENT, THEN A REMAND WOULD BE IN ORDER TO DETERMINE IN WHICH YEAR
THE GAIN WAS TAXABLE.  THE COURT OF APPEALS, WHOSE JUDGMENT IS NOW
AFFIRMED, FOLLOWED THIS SUGGESTION AND REMANDED THE CASE TO THE
DISTRICT COURT.  IT IS THUS POSSIBLE THAT THE DISTRICT COURT, HAVING
ALREADY ONCE CONCLUDED THAT THE GAIN WAS NOT REALIZED UNTIL THE PERIOD
OF LIQUIDATION HAD BEGUN IN 1966, WILL REACH THE SAME CONCLUSION ON
REMAND; BUT THE GAIN UNDER THE COURT'S HOLDING WILL NONETHELESS BE
TAXABLE TO THE CORPORATION.  THIS SEEMS A VERY ODD RESULT, FOR IF
INSUFFICIENT EVENTS OCCURRED IN 1965 TO WARRANT THE ACCRUAL OF GAIN BY
AN ACCRUAL-BASIS TAXPAYER, IT IS INCONGRUOUS TO HOLD THAT AN
INVOLUNTARY CONVERSION BASED ON THE COLLECTIBILITY OF INSURANCE
PROCEEDS NEVERTHELESS OCCURRED AT THE TIME OF THE FIRE.  IN THE CONTEXT
OF THE COMPENSATED FIRE LOSS, THE TIME OF REALIZING GAIN IS THE MORE
REALISTIC CRITERION OF WHEN THE SALE OR EXCHANGE TAKES PLACE WITHIN THE
MEANING OF 337. 

THE STATUTE DOES NOT TELL US WHEN AN INVOLUNTARY CONVERSION
QUALIFYING AS A SALE OR EXCHANGE MUST BE DEEMED TO HAVE TAKEN PLACE. 
IT PROVIDES SUFFICIENT FLEXIBILITY SO THAT IN ORDINARY LIQUIDATIONS,
SALES OR EXCHANGES MAY BE NEGOTIATED AND ALL BUT COMPLETED BY THE
CORPORATION BEFORE THE PLAN IS ADOPTED.  IT IS CONTEMPLATED THAT THE
CORPORATE TAXPAYER MAY PLAN THE LIQUIDATION AND THE TIMING OF GAINS AND
LOSSES FROM LIQUIDATING SALES AND EXCHANGES.  I PERCEIVE NO REASON WHY
CONGRESS WOULD TREAT THOSE WHOM ACCIDENT FORCES TO CONVERT THEIR
PROPERTY INTO CASH ANY LESS FAVORABLY THAN THOSE WHO HAVE TOTAL CONTROL
OF WHETHER A SALE IS TO BE MADE AT ALL.  IF A COMPENSATED FIRE LOSS
QUALIFIES AS A SALE OR EXCHANGE, AS THE GOVERNMENT CONCEDES IT DOES, IT
APPEARS PERFECTLY CONSISTENT WITH THE TERMS AS WELL AS THE PURPOSE OF
337 TO HOLD THAT THE QUALIFYING EVENT OCCURS WHEN THE GAIN IS REALIZED
AND MUST BE ACCRUED.  THIS WOULD PLACE THOSE WHO ARE FORCED TO
LIQUIDATE ON A PAR WITH THOSE CHOSE TO LIQUIDATE AND TO REALIZE GAINS
WITHOUT PAYING THE CORPORATE TAX. 

THE COMMISSIONER ARGUES, HOWEVER, THAT THERE IS AN ANALOGY BETWEEN
THE TREATMENT OF CONDEMNATION "CONVERSIONS"  AND LOSSES BY ACCIDENTS. 
HE WOULD APPLY TO COMPENSATED FIRE LOSSES THE UNIFORM RULE OF THE
COURTS OF APPEALS THAT A CORPORATION IS NOT ENTITLED TO THE BENEFITS OF
337 WHEN PROPERTY IS CONDEMNED PRIOR TO THE ADOPTION OF A LIQUIDATION
PLAN.  WENDELL V. COMMISSIONER, 326 F.2D 600 (CA2 1964); DWIGHT V.
UNITED STATES, 328 F.2D 973 (CA2 1964); COVERED WAGON, INC. V.
COMMISSIONER, 369 F.2D 629 (CA8 1966); LIKINS-FOSTER HONOLULU CORP. V.
COMMISSIONER, 417 F.2D 285 (CA10 1969).  THE RULE IN CONDEMNATION
CASES, HOWEVER, IS NOT DIRECTLY AT ODDS WITH ACCRUAL ACCOUNTING
PRINCIPLES.  RECOGNITION OF INCOME IS REQUIRED AT THE TIME OF A TAKING
WHICH TRANSFERS TITLE TO THE PROPERTY AND CREATES AN IMMEDIATE
OBLIGATION UPON THE CONDEMNING AUTHORITY TO PAY JUST COMPENSATION. 
REV. RUL. 59 - 108, 1959 - 1 CUM. BULL.  72.  AT THE TIME THE
GOVERNMENT TAKES TITLE TO THE PROPERTY, IT OFFERS TO PAY A CERTAIN
AMOUNT, THEREBY FIXING ITS LIABILITY IN A REASONABLY ASCERTAINABLE
AMOUNT.  UNDER FEDERAL LAW, WHEN THE UNITED STATES CONDEMNS PROPERTY,
IT FILES ITS DECLARATION OF TAKING AND DEPOSITS THE AMOUNT OF ESTIMATED
COMPENSATION FOR THE PROPERTY INTO COURT.  COVERED WAGON, INC., SUPRA,
AT 634.  THE TAKING VESTS TITLE IN THE GOVERNMENT, THE CONDEMNEE IS
DEPRIVED OF HIS PROPERTY AND HE IS CERTAIN TO RECOVER AT LEAST THE FAIR
MARKET VALUE ESTIMATED BY THE GOVERNMENT.  /4/ 

THIS IS NOT THE CASE HERE.  THE FIRE IS AN IRREVOCABLE EVENT AND
EXCEPT FOR THE INSURANCE, IT WOULD REPRESENT A LOSS IMMEDIATELY
ACCRUABLE.  BUT WITH INSURANCE COVERAGE, THERE MAY BE A GAIN, THE
AMOUNT OF WHICH MAY OR MAY NOT BE REASONABLY ASCERTAINABLE, EITHER THEN
OR WITHIN A SHORT TIME; AND UNTIL IT IS ASCERTAINABLE, NORMAL RULES OF
ACCRUAL ACCOUNTING WOULD NOT REQUIRE ANY GAIN TO BE RECOGNIZED; AND
UNTIL THAT OCCURS THE TRANSACTION HAS NOT SUFFICIENTLY CONGEALED TO
QUALIFY AS A SALE OR EXCHANGE. 

I ADD A FINAL NOTE.  THE CONTROLLING TREASURY REGULATIONS UNDER 337
PROVIDE CONSIDERABLE FLEXIBILITY TO THE PARTIES IN LIQUIDATION
SITUATIONS.  INDEED, TREAS. REG. 1.337 - 1 PROVIDES THAT "SALES MAY BE
MADE BEFORE THE ADOPTION OF THE PLAN OF LIQUIDATION IF MADE ON THE SAME
DAY SUCH PLAN IS ADOPTED."  (EMPHASIS ADDED.)  THUS, EVEN UNDER THE
COURT'S VIEW THAT THE SALE OR EXCHANGE OCCURS AT THE TIME OF THE FIRE,
337 WOULD BE AVAILABLE TO THE PROPERTY OWNER IF IT WERE SUFFICIENTLY
AWARE AND TOOK SUFFICIENT PAINS TO PLAN IN ADVANCE TO COMPLY WITH THE
REGULATION OR WAS A CLOSELY HELD CORPORATION THAT COULD ADOPT ITS
LIQUIDATION PLAN BEFORE THE DAY OF THE FIRE WAS OVER.  OTHER TAXPAYERS
NOT SO INCLINED OR SO CIRCUMSTANCED TO PROVIDE FOR CONTINGENCIES WOULD
BE FORECLOSED.  SECTION 337 WOULD REMAIN A TRAP FOR THE UNWARY, THE
PRECISE SITUATION CONGRESS SOUGHT TO AVOID. 

/1/  TREAS. REG. 11.165 - 1 (D) (1) AND (2) PROVIDE: 

"(D) YEAR OF DEDUCTION.  (1) A LOSS SHALL BE ALLOWED AS A DEDUCTION
UNDER SECTION 165 (A) ONLY FOR THE TAXABLE YEAR IN WHICH THE LOSS IS
SUSTAINED.  FOR THIS PURPOSE, A LOSS SHALL BE TREATED AS SUSTAINED
DURING THE TAXABLE YEAR IN WHICH THE LOSS OCCURS AS EVIDENCED BY CLOSED
AND COMPLETED TRANSACTIONS AND AS FIXED BY IDENTIFIABLE EVENTS
OCCURRING IN SUCH TAXABLE YEAR.  FOR PROVISIONS RELATING TO SITUATIONS
WHERE A LOSS ATTRUBUTABLE TO A DISASTER WILL BE TREATED AS SUSTAINED IN
THE TAXABLE YEAR IMMEDIATELY PRECEDING THE TAXABLE YEAR IN WHICH THE
DISASTER ACTUALLY OCCURRED, SEE SECTION 165 (H) AND 1.165 - 11. 

"(2) (I) IF A CASUALTY OR OTHER EVENT OCCURS WHICH MAY RESULT IN A
LOSS AND, IN THE YEAR OF SUCH CASUALTY OR EVENT, THERE EXISTS A CLAIM
FOR REIMBURSEMENT WITH RESPECT OT WHICH THERE IS A REASONABLE PROSPECT
OF RECOVERY, NO PORTION OF THE LOSS WITH RESPECT TO WHICH REIMBURSEMENT
MAY BE RECEIVED IS SUSTAINED, FOR PURPOSES OF SECTION 165, UNTIL IT CAN
BE ASCERTAINED WITH REASONABLE CERTAINTLY WHETHER OR NOT SUCH
REIMBURSEMENT WILL BE RECEIVED.  WHETHER A REASONABLE PROSPECT OF
RECOVERY EXISTS WITH RESPECT TO A CLAIM FOR REIMBURSEMENT OF A LOSS IS
A QUESTION OF FACT TO BE DETERMINED UPON AN EXAMINATION OF ALL FACTS
AND CIRCUMSTANCES.  WHETHER OR NOT SUCH REIMBURSEMENT WILL BE RECEIVED
MAY BE ASCERTAINED WITH REASONABLE CERTAINTY, FOR EXAMPLE, BY A
SETTLEMENT OF THE CLAIM, BY AN ADJUDICATION OF THE CLAIM, OR BY AN
ABANDONMENT OF THE CLAIM.  WHEN A TAXPAYER CLAIMS THAT THE TAXABLE YEAR
IN WHICH A LOSS IS SUSTAINED IS FIXED BY HIS ABANDONMENT OF THE CLAIM
FOR REIMBURSEMENT, HE MUST BE ABLE TO PRODUCE OBJECTIVE EVIDENCE OF HIS
HAVING ABANDONED THE CLAIM, SUCH AS THE EXECUTION OF A RELEASE. 

"(II) IF IN THE YEAR OF THE CASUALTY OR OTHER EVENT A PORTION OF THE
LOSS IS NOT COVERED BY A CLAIM FOR REIMBURSEMENT WITH RESPECT TO WHICH
THERE IS A REASONABLE PROSPECT OF RECOVERY, THEN SUCH PORTION OF THE
LOSS IS SUSTAINED DURING THE TAXABLE YEAR IN WHICH THE CASUALTY OR
OTHER EVENT OCCURS.  FOR EXAMPLE, IF PROPERTY HAVING AN ADJUSTED BASIS
OF $10,000 IS COMPLETELY DESTROYED BY FIRE IN 1961, AND IF THE
TAXPAYER'S ONLY CLAIM FOR REIMBURSEMENT CONSISTS OF AN INSURANCE CLAIM
FOR $8,000 WHICH IS SETTLED IN 1962, THE TAXPAYER SUSTAINS A LOSS OF
$2,000 IN 1961.  HOWEVER, IF THE TAXPAYER'S AUTOMOBILE IS COMPLETELY
DESTROYED IN 1961 AS A RESULT OF THE NEGLIGENCE OF ANOTHER PERSON AND
THERE EXISTS A REASONABLE PROSPECT OF RECOVERY ON A CLAIM FOR THE FULL
VALUE OF THE AUTOMOBILE AGAINST SUCH PERSON, THE TAXPAYER DOES NOT
SUSTAIN ANY LOSS UNTIL THE TAXABLE YEAR IN WHICH THE CLAIM IS
ADJUDICATED OR OTHERWISE SETTLED.  IF THE AUTOMOBILE HAD ADJUSTED BASIS
OF $5,000 AND THE TAXPAYER SECURES A JUDGMENT OF $4,000 IN 1962, $1,000
IS DEDUCTIBLE FOR THE TAXABLE YEAR 1962.  IF IN 1963 IT BECOMES
REASONABLY CERTAIN THAT ONLY $3,500 CAN EVER BE COLLECTED ON SUCH
JUDGEMENT, $500 IS DEDUCTIBLE FOR THE TAXABLE YEAR 1963. 

"(III) IF THE TAXPAYER DEDUCTED A LOSS IN ACCORDANCE WITH THE
PROVISIONS OF THIS PARAGRAPH AND IN A SUBSEQUENT TAXABLE YEAR RECEIVES
REIMBURSEMENT FOR SUCH LOSS, HE DOES NOT RECOMPUTE THE TAX FOR THE
TAXABLE YEAR IN WHICH THE DEDUCTION WAS TAKEN BUT INCLUDES THE AMOUNT
OF SUCH REIMBURSEMENT IN HIS GROSS INCOME FOR THE TAXABLE YEAR IN WHICH
RECEIVED, SUBJECT TO THE PROVISIONS OF SECTION 111, RELATING TO
RECOVERY OF AMOUNTS PREVIOUSLY DEDUCTED." 

/2/  MARYLAND SHIPBUILDING & DRYDOCK CO. V. UNITED STATES, 187 CT CL
523, 409 F.2D 1363 (1969) (ACCRUAL NOT REQUIRED BECAUSE EXTENT OF
LIABILITY CONTESTED BY INSURANCE COMPANY IN NEGOTIATIONS NOT COMPLETED
IN TAXABLE YEAR); CAPPEL HOUSE FURNISHING CO. V. UNITED STATES, 244
F.2D 525 (CA6 1957) (LIABILITY AND APPROXIMATE AMOUNT DETERMINED IN
YEAR OF FIRE BECAUSE OF UNREASONABLE DELAY OF TAXPAYER IN PRESENTING
CLAIM, AND LIABILITY WAS BOTH CLEAR AND COULD BE APPROXIMATED); GEORGIA
CAROLINA CHENICAL CO. V. COMMISSIONER, 3 T.C.M. 1213 (1944) (EXTENT OF
LIABILITY NOT FIXED IN YEAR OF LOSS BECAUSE OF UNCERTAINTY AS TO
WHETHER CO-INSURANCE CLAUSE, WHICH WOULD REDUCE COVERAGE, WOULD BE
INVOKED BY INSURANCE COMPANY); LUCKENBACH S.S. CO. V. COMMISSIONER, 9
T.C. 662 (1947) (AMOUNT OF RECOVERY ON WAR RISK INSURANCE UNCERTAIN IN
YEARS OF LOSS BECAUSE OF CONTROVERSY BETWEEN WAR SHIPPING
ADMINISTRATION AND COMPTROLLER GENERAL); THALHIMER BROS V.
COMMISSIONER, 27 T.C. 733 (1957) (WHERE FIRE OCCURRED SIX DAYS PRIOR TO
COMPLETION OF TAX YEAR, INSURANCE PROCEEDS DID NOT ACCRUE BECAUSE
EXTENT OF DAMAGE STILL UNCERTAIN); CURTIS ELECTRO LIGHTING V.
COMMISSIONER, 60 T.C. 633 (1973) (ACCRUAL NOT REQUIRED BECAUSE
INSURANCE COMPANY HAD NEVER ADMITTED TO LIABILITY IN ANY AMOUNT IN
TAXABLE YEAR); KURZ V. COMMISSIONER, 8 B.T.A. 679 (1927) (ACCRUAL
REQUIRED WHERE INSURANCE COMPANY HAD ADMITTED LIABILITY AND CONCEDED
BULK OF LOSS CLAIMED BY TAXPAYER IN YEAR OF LOSS).     /3/  THIS IS
FORMALLY TERMED A REPLACEMENT-COST-ENDORSEMENT CO-INSURANCE CLAUSE. 
THE INSURANCE ADJUSTER EXPLAINED AT TRIAL THAT A REPLACEMENT COST
ENDORSEMENT IS BOUGHT BY THE INSURED TO COVER, IN THE EVENT OF
COMPENSABLE LOSS, THE REPLACEMENT COST OF LOST PROPERTY.  THE CO
INSURANCE CLAUSE REQUIRES THAT THE INSURED CARRY COVERAGE UP TO A
SUFFICIENT LIMIT SO THAT THE PREMIUMS WILL JUSTIFY THE COVERAGE.  HE
ADDITIONALLY EXPLAINED THAT, IF THE PREMIUMS ARE DETERMINED NOT TO
JUSTIFY THE ACTUAL REPLACEMENT COST, COVERAGE IS REDUCED. 

/4/  THE COMMISSIONER ALSO SEEKS TO ANALOGIZE THIS CASE TO THOSE
DEALING WITH COMPUTING OF THE HOLDING PERIOD OF LOST OR DESTROYED
PROPERTY IN CONNECTION WITH MEASURING WHETHER THE GAIN FRON THE SALE OF
A CAPITAL ASSET IS TAXABLE AS SHORT-TERM OR LONG-TERM CAPITAL GAIN OR
ORDINARY INCOME.  SEE ROSE V. UNITED STATES 229 F. SUPP. 298, 300 (SD
CAL. 1964); STEELE V. UNITED STATES, 52 - 2 U.S. TAX CAS. 94561 (SD
FLA. 1952).  IN ROSE, WHICH DEALT WITH INVOLUNTARY CONVERSION IN 1960,
THE HOLDING PERIOD OF THE ASSET WAS FOUND TO TERMINATE WHEN THE SHIP
INVOLVED WAS LOST AT SEA, RATHER THAN WHEN INSURANCE PROCEEDS WERE
RECEIVED.  THE TEST FOR THE DATING OF THE END OF THE HOLDING PERIOD IS
WHEN THE BENEFITS OR BURDENS OF OWNERSHIP ARE TRANSFERRED OR WHEN TITLE
PASSES, WHICHEVER OCCURS FIRST.  SEE COMMENT, EXTENDING SECTION 337 TO
LIQUIDATIONS TRIGGERED BY THE INVOLUNTARY CONVERSION OF CORPORATE
ASSETS, 62 GEO. L.J. 1203, 1213 N. 55 (1974).  IN ROSE, WHEN THE SHIP
WAS LOST THE OWNERS TOTALLY ABANDONED IT AND GAVE ALL RIGHTS TO SALVAGE
INCOME TO THE INSURER.  THUS, ALL RIGHTS OF OWNERSHIP WERE RELINQUISHED
AT THE TIME OF THE LOSS.  THE CASE DOES NOT RELATE TO THE TIMING OF THE
RECEIPT OF INCOME, AS DOES THE INSTANT CASE, BUT ONLY TO THE PERIOD OF
TIME A CAPITAL ASSET IS HELD.  THE PARTIES IN ROSE DID NOT DISPUTE THAT
THE GAIN, WHETHER IT BE SHORT-TERM OR LONG-TERM, AS DETERMINED BY THE
HOLDING PERIOD, WAS TO BE RECOGNIZED IN 1960.  THIS WAS LARGELY BECAUSE
IT APPEARS THAT ALL RELEVANT EVENTS OCCURRED IN THAT YEAR; THE LOSS,
ADMISSION OF LIABILITY, AND SETTLEMENT. 

IN STEELE, THERE WAS ALSO NO DISPUTE AS TO THE TIMING OF
RECOGNITION.  THE TAXPAYER, REPORTING ON A CASH BASIS, RECEIVED
INSURANCE IN 1944 FOR THE LOSS WHICH OCCURRED IN 1943.  THE
COMMISSIONER ASSERTED A DEFICIENCY FOR 1944.  EVEN THOUGH THE COURT
HELD THAT THERE WAS NOT A 6-MONTH HOLDING PERIOD, SO THAT THE GAIN WAS
ORDINARY INCOME, IT WAS STILL INCURRED IN 1944, THE DATE OF THE RECEIPT
OF INSURANCE PROCEEDS, AND NOT IN 1943, THE DATE OF THE LOSS OF THE
VESSEL. 

LARRY H. SNYDER ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

STUART A. SMITH ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
CRAMPTON, AND DAVID ENGLISH CARMACK. 
..END :






















BANGOR PUNTA OPERATIONS V. BANGOR & A.R. CO, 417 U.S. 703 


       BANGOR PUNTA OPERATIONS, INC., ET AL. V. BANGOR & AROOSTOOK

           RAILROAD CO. ET AL. CERTIORARI

   TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

        NO. 73 - 718.  ARGUED APRIL 15, 1974--DECIDED JUNE 19,
1974;

           482 F.2D 865, REVERSED. 


    IN 1964 PETITIONER BANGOR PUNTA CORP. (BANGOR PUNTA), THROUGH

  ITS WHOLLY OWNED SUBSIDIARY, ACQUIRED 98.3% OF THE OUTSTANDING

  STOCK OF RESPONDENT BANGOR & AROOSTOOK RAILROAD CO. (BAR), A

  MAINE RAILROAD, BY PURCHASING ALL THE ASSETS OF BAR'S HOLDING

  COMPANY, BANGOR & AROOSTOOK CORP. (B&A).  FROM 1964 TO 1969

  BANGOR PUNTA CONTROLLED AND DIRECTED BAR.  IN 1969 BANGOR PUNTA,

  AGAIN THROUGH ITS SUBSIDIARY, SOLD ALL ITS BAR STOCK TO AMOSKEAG

  CO., WHICH THEN ASSUMED RESPONSIBILITY FOR BAR'S MANAGEMENT AND

LATER ACQUIRED ADDITIONAL SHARES TO GIVE IT 99% OWNERSHIP OF THE

  OUTSTANDING STOCK.  IN 1971, BAR AND ITS SUBSIDIARY FILED AN

  ACTION AGAINST BANGOR PUNTA AND ITS SUBSIDIARY, ALLEGING VARIOUS

  ACTS OF CORPORATE MISMANAGMENT OF BAR DURING THE PERIOD OF

  CONTROL FROM 1960 THROUGH 1967 BY BANGOR PUNTA AND B&A, AND

  SEEKING DAMAGES FOR VIOLATIONS OF THE FEDERAL ANTITRUST AND

  SECURITIES LAWS, THE MAINE PUBLIC UTILITIES ACT, AND THE COMMON

  LAW OF MAINE.  THE DISTRICT COURT FIRST NOTED THAT AMOSKEAG WOULD

  BE THE PRINCIPAL BENEFICIARY OF ANY RECOVERY, AND WAS THUS THE

  REAL PARTY IN INTEREST, AND THAT SINCE AMOSKEAG HAD ACQUIRED ITS

  BAR STOCK LONG AFTER THE ALLEGED WRONGS HAD OCCURRED, ANY

  RECOVERY BY IT WOULD BE A WINDFALL.  THE DISTRICT COURT THEN

  DISMISSED THE ACTION ON THE GROUND THAT SINCE AMOSKEAG WOULD HAVE

  BEEN BARRED FROM MAINTAINING A SHAREHOLDER DERIVATIVE ACTION DUE

  TO ITS FAILURE TO SATISFY THE "CONTEMPORANEOUS OWNERSHIP"

  REQUIREMENT OF BOTH FED. RULE CIV. PROC. 23.1 (1), AND STATE LAW,

  EQUITABLE PRINCIPLES PRECLUDED THE USE OF THE CORPORATE FICTION

  TO EVADE THAT REQUIREMENT.  THE COURT OF APPEALS REVERSED

  PRIMARILY ON THE GROUND THAT IN VIEW OF BAR'S STATUS AS A

  "PUBLIC" OR "QUASIPUBLIC"  CORPORATION AND THE IMPORTANT NATURE

OF THE SERVICES IT PROVIDES, ANY RECOVERY BY BAR WOULD ALSO INURE

  TO THE PUBLIC'S BENEFIT, A FACTOR THE COURT FOUND TO BE

  SUFFICIENT TO SUPPORT A CORPORATE CAUSE OF ACTION AND TO RENDER

  ANY WINDFALL TO AMOSKEAG IRRELEVENT.  HELD: 

     1.  EQUITABLE PRINCIPLES THAT A STOCKHOLDER, WHO HAS PURCHASED

  ALL OR SUBSTANTIALLY ALL THE SHARES OF A CORPORATION FROM A

  VENDOR AT A FAIR PRICE, MAY NOT SEEK HAVE THE CORPORATION RECOVER

  AGAINST THAT VENDOR FOR PRIOR CORPORATE MISMANAGEMENT, AND THAT

  THE CORPORATE ENTITY MAY BE DISREGARDED IF EQUITY SO DEMANDS,

  PRECLUDE RESPONDENT CORPORATIONS FROM MAINTAINING THE ACTION

  UNDER EITHER THE FEDERAL ANTITRUST AND SECURITIES LAWS OR STATE

  LAW.  PP. 710 - 713. 

     (A) AMOSKEAG, HAVING PURCHASED 98.3% OF THE STOCK OF BAR FROM

  BANGOR PUNTA AND ALLEGING NO FRAUD, WOULD HAVE NO STANDING IN

  EQUITY TO MAINTAIN THIS ACTION FOR ALLEGED CORPORATE

  MISMANAGEMENT.  HOME FIRE INSURANCE CO. V. BARBER, 67 NEB. 644,

  93 N.W. 1024.  PP. 711 - 712; 713 - 714. 

     (B) AS THE PRINCIPAL BENEFICIARY OF ANY RECOVERY AND ITSELF

  ESTOPPED FROM CONPLAINING OF PETITIONERS' ALLEGED WRONGS,

  AMOSKEAG CONNOT AVOID THE COMMAND OF EQUITY THROUGH THE GUISE OF

  PROCEEDING IN THE NAME OF RESPONDENT CORPORATIONS WHICH IT OWNS

  AND CONTROLS.  PP. 711 - 712; 713 - 714. 

     2.  THE COURT OF APPEALS' ASSUMPTION THAT ANY RECOVERY WOULD

  NECESSARILY BENEFIT THE PUBLIC IS UNWARRANTED AND ALSO OVERLOOKS

  THE FACT THAT AMOSKEAG, THE ACTUAL BENEFICIARY OF ANY RECOVERY,

  WOULD BE UNJUSTLY ENRICHED SINCE IT HAS SUSTAINED NO INJURY. 

  NEITHER THE FEDERAL ANTITRUST AND SECURITIES LAWS NOR THE

  APPLICABLE STATE LAWS CONTEMPLATE A WINDFALL RECOVERY BY AMOSKEAG

  IN THESE CIRCUMSTANCES.  PP. 714 - 716. 

     3.  DETERRENCE OF RAILROAD MISMANAGEMENT IS NOT IN ITSELF A

  SUFFICIENT GROUND FOR ALLOWING RESPONDENTS TO RECOVER.  IF SUCH

  DETERRENCE WERE THE ONLY OBJECTIVE, IT WOULD SUFFICE IF ANY

  PLAINTIFF WERE WILLING TO FILE A COMPLAINT, AND NO INJURY OR

  VIOLATION OF A LEGAL DUTY TO THE PARTICULAR PLAINTIFF WOULD HAVE

  TO BE ALLEGED.  P. 717. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

  MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS,

  BRENNAN, AND WHITE, JJ., JOINED, POST, P. 719. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES AN ACTION BY A MAINE RAILROAD CORPRATION SEEKING
DAMAGES FROM ITS FORMER OWNERS FOR VIOLATIONS OF FEDERAL ANTITRUST AND
SECURITIES LAWS, APPLICABLE STATE STATUTES, AND COMMON-LAW PRINCIPLES. 
THE COMPLAINT ALLEGED THAT THE FORMER OWNERS HAD ENGAGED IN VARIOUS
ACTS OF CORPORATE WASTE AND MISMANAGEMENT DURING THE PERIOD OF THEIR
CONTROL.  THE SHAREHOLDER PRESENTLY IN CONTROL OF THE RAILROAD ACQUIRED
MORE THAN 99% OF THE RAILROAD'S SHARES FROM THE FORMER OWNERS LONG
AFTER THE ALLEGED WRONGS OCCURRED.  WE MUST DECIDE WHETHER EQUITABLE
PRINCIPLES APPLICABLE UNDER FEDERAL AND STATE LAW PRECLUDE RECOVERY BY
THE RAILROAD IN THESE CIRCUMSTANCES. 

        I 

RESPONDENT BANGOR & AROOSTOOK ROILROAD CO. (BAR), A MAINE
CORPORATION, OPERATES A RAILROAD IN THE NORTHERN PART OF THE STATE OF
MAINE.  RESPONDENT BANGOR INVESTMENT CO., ALSO A MAINE CORPORATION, IS
A WHOLLY OWNED SUBSIDIARY OF BAR.  PETITIONER BANGOR PUNTA CORP.
(BANGOR PUNTA), A DELAWARE CORPORATION, IS A DIVERSIFIED INVESTMENT
COMPANY WITH BUSINESS OPERATIONS IN SEVERAL AREAS.  PETITIONER BANGOR
PUNTA OPERATIONS, INC. (BPO), A NEW YORK CORPORATION, IS A WHOLLY OWNED
SUBSIDIARY OF BANGOR PUNTA. 

ON OCTOBER 13, 1964, BANGOR PUNTA, THROUGH ITS SUBSIDIARY
BPO,ACQUIRED 98.3% OF THE OUTSTANDING STOCK OF BAR.  THIS ACCOMPLISHED
BY THE SUBSIDIARY'S PURCHASE OF ALL THE ASSETS OF BANGOR & AROOSTOOK
CORP. (B&A), A MAINE CORPORATION ESTABLISHED IN 1960 AS THE HOLDING
COMPANY OF BAR.  FROM 1964 TO 1969, BANGOR PUNTA CONTROLLED AND
DIRECTED BAR THROUGH ITS OWNERSHIP OF ABOUT 98.3% OF THE OUTSTANDING
STOCK.  ON OCTOBER 2, 1969, BANGOR PUNTA, AGAIN THROUGH ITS SUBSIDIARY,
SOLD ALL OF ITS STOCK FOR #5,000,000 TO AMOSKEAG CO., A DELAWARE
INVESTMENT CORPORATION.  AMOSKEAG ASSUMED RESPONSIBILITY FOR THE
MANAGEMENT OF BAR AND LATER ACQUIRED ADDITIONAL SHARES TO GIVE IT
OWNERSHIP OF MORE THAN 99% OF ALL THE OUTSTANDING STOCK. 

IN 1971, BAR AND ITS SUBSIDIARY FILED THE PRESENT ACTION AGAINST
BANGOR PUNTA AND ITS SUBSIDIARY IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MAINE.  THE COMPLAINT SPECIFIED 13 COUNTS OF ALLEGED
MISMANAGEMENT, MISAPPROPRIATION, AND WASTE OF BAR'S CORPORATE ASSETS
OCCURING DURING THE PERIOD FROM 1960 THROUGH 1969 WHEN B&A AND THEN
BANGOR PUNTA CONTROLLED BAR.  /1/  DAMAGES WERE SOUGHT IN THE AMOUNT OF
#7,000,000 FOR VIOLATIONS OF BOTH FEDERAL AND STATE LAWS.  THE FEDERAL
STATUTES ALLEGED TO HAVE BEEN VIOLATED INCLUDED 10 OF THE CLAYTON ACT,
15 U.S.C. 20, AND 10 (B) OF THE SECURITIES EXCHANGE ACT OF 1934, 15
U.S.C. 78J (B), AND RULE 10B - 5, 17 CFR 240.  10B - 5, AS PROMULGATED
THEREUNDER BY THE SECURITIES AND EXCHANGE COMMISSION.  THE STATE CLAIMS
WERE GROUNDED ON 104 OF THE MAINE PUBLIC UTILITIES ACT, MAINE REV.
STAT. ANN., TIT. 35, 104 (1965), AND THE COMMON LAW OF MAINE. 

THE COMPLAINT FOCUSED ON FOUR INTERCOMPANY TRANSACTIONS WHICH
ALLEGEDLY RESULTED IN INJURY TO BAR.  /2/  COUNTS I AND II AVERRED THAT
B&A, AND LATER BANGOR PUNTA, OVERCHARGED BAR FOR VARIOUS LEGAL,
ACCOUNTING, PRINTING, AND OTHER SERVICES.  COUNTS III, IV, V, AND VI
AVERRED THAT B&A IMPROPERLY ACQUIRED THE STOCK OF THE ST. CROIX PAPER
CO. WHICH BAR OWNED THROUGH ITS SUBSIDIARY.  COUNTS VII, VIII, IX, AND
X CHARGED THAT B&A AND BANGOR PUNTA IMPROPERLY CAUSED BAR TO DECLARE
SPECIAL DIVIDENDS TO ITS STOCKHOLDERS, INCLUDING B & A AND BANGOR PUNTA
AND ALSO CAUSED BAR'S SUBSIDARY TO BORROW IN ORDER TO PAY REGULAR
DIVIDENDS.  COUNTS XI, XII, AND XIII CHARGED THAT B&A IMPROPERLY CAUSED
BAR TO EXCUSE PAYMENT BY B&A AND BANGOR PUNTA OF THE INTEREST DUE ON A
LOAN MADE BY BAR TO B&A.  IN SUM, THE COMPLAINT ALLEGED THAT DURING THE
PERIOD OF THEIR CONTROL OF BAR, BANGOR PUNTA, AND ITS PREDECESSOR IN
INTEREST B&A, "EXPLOITED IT SOLELY FOR THEIR OWN PURPOSES" AND
"CALCULATEDLY DRAINED THE RESOURCES OF BAR IN VIOLATION OF LAW FOR
THEIR OWN BENEFIT." 

THE DISTRICT COURT GRANTED PETITIONERS' MOTION FOR SUMMARY JUDGMENT
AND DISMISSED THE ACTION.  353 F. SUPP. 724 (1972).  THE COURT FIRST
OBSERVED THAT ALTHOUGH THE SUIT PURPORTED TO BE A PRIMARY ACTION
BROUGHT IN THE NAME OF THE CORPORATION, THE REAL PARTY IN INTEREST AND
HENCE THE ACTUAL BENEFICIARY OF ANY RECOVERY, WAS AMOSKEAG, THE PRESENT
OWNER OF MORE THAN 99% OF THE OUTSTANDING STOCK OF BAR.  THE COURT THEN
NOTED THAT AMOSKEAG HAD ACQUIRED ALL OF ITS BAR STOCK LONG AFTER THE
ALLEGED WRONGS OCCURRED AND THAT AMOSKEAG DID NOT CONTEND THAT IT HAD
NOT RECIVED FULL VALUE FOR ITS PURCHASE PRICE, OR THAT THE PURCHASE
TRANSACTION WAS TAINTED BY FRAUD OR DECEIT.  THUS, ANY RECOVERY ON
AMOSKEAG'S PART WOULD CONSTITUTE A WINDFALL BECAUSE IT HAD SUSTAINED NO
INJURY.  WITH THIS IN MIND, THE COURT THEN ADDRESSED THE CLAIMS BASED
ON FEDERAL LAW AND DETERMINED THAT AMOSKEAG WOULD HAVE BEEN BARRED FROM
MAINTAINING A SHAREHOLDER DERIVATIVE ACTION BECAUSE OF ITS FAILURE TO
SATISFY THE "CONTEMPORANEOUS OWNERSHIP" REQUIREMENT OF FED. RULE CIV.
PROC. 23.1 (1).  /3/  FINDING THAT EQUITABLE PRINCIPLES PREVENTED THE
USE OF THE CORPORATE FICTION TO EVADE THE PROSCIPTION OF RULE 23.1, THE
COURT CONCLUDED THAT AMOSKEAG'S EFFORTS TO RECOVER UNDER THE SECURITIES
EXCHANGE ACT AND THE CLAYTON ANTITRUST ACT MUST FAIL.  TURNING TO THE
CLAIMS BASED ON STATE LAW, THE COURT RECOGNIZED THAT THE APPLICABILITY
OF RULE 23.1 (1) HAS BEEN QUESTIONED WHERE FEDERAL JURISDICTION IS BASE
ON DEVERSITY OF CITIZENSHIP.  /4/  THE COURT FOUND IT UNNECESSARY TO
RESOLVE THIS ISSUE, HOWEVER, SINCE ITS EXAMINATION OF STATE LAW
INDICATED THAT MAINE PROBABLY FOLLOWED THE "PREVAILING RULE" REQUIRING
CONTEMPORANEOUS OWNERSHIP IN ORDER TO MAINTAIN A SHAREHOLDER DERIVATIVE
ACTION.  THUS, WHETHER THE FEDERAL RULE OR STATE SUBSTANTIVE LAW
APPLIED, THE PRESENT ACTION COULD NOT BE MAINTAINED. 

THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT REVERSE 482
F.2D 865 (1973).  THE COURT STATED THAT ITS DISAGREEMENT WITH THE
DISTRICT COURT CENTERED PRIMARILY ON THAT COURT'S ASSUMPTION THAT
AMOSKEAG WOULD BE THE "SOLE BENEFICIARY" OF ANY RECOVERY BY BAR.  THE
COURT OF APPEALS THOUGHT THAT IN VIEW OF THE RAILROAD'S STATUS AS A
"PUBLIC" OR "QUASI-PUBLIC" CORPORATION AND THE IMPORTANT NATURE OF THE
SERVICES IT PROVIDES, ANY RECOVERY BY BAR WOULD ALSO INURE TO THE
BENEFIT OF THE PUBLIC.  THE COURT STATED THAT THIS FACTOR SUFFICED TO
SUPPORT A CORPORATE CAUSE OF ACTION AND RENDERED ANY WINDFALL TO
AMOSKEAG IRRELEVANT.  IN ADDITION, THE COURT NOTED THAT TO PERMIT BAR
TO RECOVER FOR THE ALLEGED WRONGS WOULD PROVIDE A NEEDED DETERRENT TO
"PATENTLY UNDESIRABLE CONDUCT" IN THE MANAGEMENT OF RAILROADS.  ID., AT
871.  FINALLY, THE COURT CONFRONTED THE POSSIBILITY THAT ANY CORPORATE
RECOVERY MIGHT BE DIVERTED TO ENRICH THE PRESENT BAR SHAREHOLDERS,
MAINLY AMOSKEAG, RATHER THAN RE-INVESTED TO IMPROVE THE RAILROAD'S
SERVICES FOR THE BENEFIT OF THE PUBLIC.  ALTHOUGH TROUBLED BY THIS
PROSPECT, THE COURT CONCLUDED THAT THE PUBLIC INTEREST WOULD
NONETHELESS BE BETTER SERVED BY INSURING THAT PETITIONERS WOULD NOT BE
IMMUNE TO CIVIL LIABILITY FOR THEIR ALLEGEDLY WRONGFUL CONDUCT. 
WITHOUT DECIDING THE ISSUE, THE COURT ALSO SUGGESTED THE POSSIBILITY OF
DEVISING "COURT-IMPOSED LIMITATIONS" ON THE USE BAR MIGHT MAKE OF ANY
RECOVERY TO INSURE THAT THE PUBLIC WOULD ACTUALLY BE BENEFITED. 

WE GRANTED PETITIONERS" APPLICATION FOR CERTIORATI.  414 U.S. 1127
(1974).  WE NOW REVERSE. 

        II

A 

WE FIRST TURN TO THE QUESTION WHETHER RESPONDENT CORPORATIONS MAY
MAINTAIN THE PRESENT ACTION UNDER 10 OF THE CLAYTON ACT, 15 U.S.C. 20,
AND 10 (B) OF THE SECURITIES EXCHANGE ACT OF 1934, 15 U.S.C. 78J (B),
AND RULE 10B - 5, 17 CFR 240.10B - 5.  THE RESOLUTION OF THIS ISSUE
DEPENDS UPON THE APPLICABILITY OF THE SETTLED PRINCIPLE OF EQUITY THAT
A SHAREHOLDER MAY NOT COMPLAIN OF ACTS OF CORPORATE MISMANAGEMENT IF HE
ACQUIRED HIS SHARES FROM THOSE WHO PARTICIPATED OR ACQUIESCED IN THE
ALLEGEDLY WRONGFUL TRANSACTIONS.  SEE, E. G., BLOODWORTH V. BLOODWORTH,
225 GA. 379, 387, 169 S. E. 2D 150, 156 - 157 (1969); BOOKMAN V. R.J.
REYNOLDS TOBACCO CO., 138 N.J. EQ. 312, 372, 48 A 2D 646, 680 (CH.
1946); BABCOCK V. FARWELL, 245 I11.  14, 40 - 41, 91 N. E. 683, 692 -
693 (1910).  /5/  THIS PRINCIPLE HAS BEEN INVOKED WITH SPECIAL FORCE
WHERE A SHAREHOLDER PURCHASES ALL OR SUBSTANTIALLY ALL THE SHARES OF A
CORPORATION FROM A VENDOR AT A FAIR PRICE, AND THEN SEEKS TO HAVE THE
CORPORATION RECOVER AGAINST THAT VENDOR FOR PRIOR CORPORATE
MISMANAGEMENT.  SEE, E. G., MATTHEWS V. HEADLEY CHOCOLATE CO., 130 MD.
523, 532 - 535, 100 A. 645, 650 - 651 (1917); HOME FIRE INSURANCE CO.
V. BARBER, 67 NEB. 644, 661 - 662, 93 N. W. 1024, 1030 - 1031 (1903). 
SEE ALSO AMEN V. BLACK, 234 F.2D 12, 23 (CA10 1956).  THE EQUITABLE
CONSIDERATIONS PRECLUDING RECOVERY IN SUCH CASES WERE EXPLICATED LONG
AGO BY DEAN (THEN COMMISSIONER) ROSCOE POUND IN HOME FIRE INSURANCE CO.
V. BARBER, SUPRA.  DEAN POUND, WRITING FOR THE SUPREME COURT OF
NEBRASKA, OBSERVED THAT THE SHAREHOLDERS OF THE PLAINTIFF CORPORATION
IN THAT CASE HAD SUSTAINED NO INJURY SINCE THEY HAD ACQUIRED THEIR
SHARES FROM THE ALLEGED WRONGDOERS AFTER THE DISPUTED TRANSACTIONS
OCCURRED AND HAD RECEIVED FULL VALUE FOR THEIR PURCHASE PRICE.  THUS,
ANY RECOVERY ON THEIR PART WOULD CONSTITUTE A WINDFALL, FOR IT WOULD
ENABLE THEM TO OBTAIN FUNDS TO WHICH THEY HAD NO JUST TITLE OR CLAIM. 
MOREOVER, IT WOULD IN EFFECT ALLOW THE SHAREHOLDERS TO RECOUP A LARGE
PART OF THE PRICE THEY AGREED TO PAY FOR THEIR SHARES, NOTWITHSTANDING
THE FACT THAT THEY RECEIVED ALL THEY HAD BARGAINED FOR.  FINALLY, IT
WOULD PERMIT THE SHAREHOLDERS TO REAP A PROFIT FROM WRONGS DONE TO
OTHERS, THUS ENCOURAGING FURTHER SUCH SPECULATION.  DEAN POUND STATED
THAT THESE CONSEQUENCES RENDERED ANY RECOVERY HIGHLY INEQUITABLE AND
MANDATED DISMISSAL OF THE SUIT. 

THE CONSIDERATIONS SUPPORTING THE HOME FIRE PRINCIPLE ARE ESPECIALLY
PERTINENT IN THE PRESENT CASE.  AS THE DISTRICT COURT POINTED OUT,
AMOSKEAG, THE PRESENT OWNER OF MORE THAN 99% OF THE BAR SHARES, WOULD
BE THE PRINCIPAL BENEFICIARY OF ANY RECOVERY OBTAINED BY BAR. 
AMOSKEAG, HOWEVER, ACQUIRED 98.3% OF THE OUTSTANDING SHARES OF BAR FROM
PETITIONER BANGOR PUNTA IN 1969, WELL AFTER THE ALLEGED WRONGS WERE
SAID THE HAVE OCCURRED.  AMOSKEAG DOES NOT CONTEND THAT THE PURCHASE
TRANSACTION WAS TAINTED BY FRAUD OR DECEIT, OR THAT IT RECEIVED LESS
THAN FULL VALUE FOR ITS MONEY.  INDEED, IT DOES NOT ASSERT THAT IT HAS
SUSTAINED ANY INJURY AT ALL.  NOR DOES IT APPEAR THAT THE ALLEGED ACTS
OF PRIOR MISMANAGEMENT HAVE HAD ANY CONTINUING EFFECT ON THE
CORPORATIONS INVOLVED OR THE VALUE OF THE SHARES.  /6/  NEVERTHELESS,
BY CAUSING THE PRESENT ACTION TO BE BROUGHT IN THE NAME OF RESPONDENT
CORPORATIONS, AMOSKEAG SEEKS TO RECOVER INDIRECTLY AN AMOUNT EQUAL TO
THE $5,000,000 IT PAID FOR ITS STOCK, PLUS AN ADDITIONAL $2,000,000. 
ALL THIS WOULD BE IN THE FORM OF DAMAGES FOR WRONGS PETITIONER BANGOR
PUNTA IS SAID TO HAVE INFLICTED, NOT UPON AMOSKEAG, BUT UPON RESPONDENT
CORPORATIONS DURING THE PERIOD IN WHICH BANGOR PUNTA OWNED 98.3% OF THE
BAR SHARES.  IN OTHER WORDS, AMOSKEAG SEEKS TO RECOVER FOR WRONGS
BANGOR PUNTA DID TO ITSELF AS OWNER OF THE RAILROAD.  /7/  AT THE SAME
TIME IT REAPS THIS WINDFALL, AMOSKEAG DESIRES TO RETAIN ALL ITS BAR
STOCK.  UNDER HOME FIRE, IT IS EVIDENT THAT AMOSKEAG WOULD HAVE NO
STANDING IN EQUITY TO MAINTAIN THE PRESENT ACTION.  /8/ 

WE ARE MET WITH THE ARGUMENT, HOWEVER, THAT SINCE THE PRESENT ACTION
IS BROUGHT IN THE NAME OF RESPONDENT CORPORATIONS, WE MAY NOT LOOK
BEHIND THE CORPORATE INTITY TO THE TRUE SUBSTANCE OF THE CLAIMS AND THE
ACTUAL BENEFICIARIES.  THE ESTABLISHED LAW IS TO THE CONTRARY. 
ALTHOUGH A CORPORATION AND ITS SHAREHOLDERS ARE DEEMED SEPARATE
ENTITIES FOR MOST PURPOSES, THE CORPORATE FORM MAY BE DISREGARDED IN
THE INTERESTS OF JUSTICE WHERE IT IS USED TO DEFEAT AN OVERRIDING
PUBLIC POLICY.  NEW COLONIAL ICE CO. V. HELVERING, 292 U.S. 435, 442
(1934); CHICAGO, M. & ST. P. R. CO. V. MINNEAPOLIS CIVIC ASSN., 247
U.S. 490, 501 (1918).  IN SUCH CASES, COURTS OF EQUITY, PIERCING ALL
FICTIONS AND DISGUISES, WILL DEAL WITH THE SUBSTANCE OF THE ACTION AND
NOT BLINDLY ADHERE TO THE CORPORATE FORM.  THUS, WHERE EQUITY WOULD
PRECLUDE THE SHAREHOLDERS FROM MAINTAINING AN ACTION IN THEIR OWN
RIGHT, THE CORPORATION WOULD ALSO BE PRECLUDED.  AMEN V. BLACK, SUPRA;
CAPITAL WINE & SPIRIT CORP. V. POKRASS, 277 APP. DIV. 184, 98 N. Y. S.
2D 291 (1950), AFF'D, 302 N. Y. 734, 98 N. E. 2D 704 (1951); MATTHEWS
V. HEADLEY CHOCOLATE CO., SUPRA; HOME FIRE INSURANCE CO. V. BARBER,
SUPRA.  IT FOLLOWS THAT AMOSKEAG, THE PRINCIPAL BENEFICIARY OF ANY
RECOVERY AND ITSELF ESTOPPED FROM COMPLAINING OF PETITIONERS' ALLEGED
WRONGS, CANNOT AVOID THE COMMAND OF EQUITY THROUGH THE GUISE OF
PROCEEDING IN THE NAME OF RESPONDENT CORPORATIONS WHICH IT OWNS AND
CONTROLS. 

        B 

RESPONDENTS FARE NO BETTER IN THEIR EFFORTS TO MAINTAIN THE PRESENT
ACTIONS UNDER STATE LAW, SPECIFICALLY SECTION 104 OF THE MAINE PUBLIC
UTILITIES ACT, MAINE REV. STAT. ANN., TIT. 35, 104 (1965), AND THE
COMMON LAW OF MAINE.  IN FORBES V. WELLS BEACH CASINO, INC., 307 A 2D
210, 223 N. 10 (1973), THE MAINE SUPREME JUDICIAL COURT RECENTLY
DECLARED THAT IT HAD LONG ACCEPTED THE EQUITABLE PRINCIPLE THAT A
"STOCKHOLER HAS NO STANDING IF EITHER HE OR HIS VENDOR PARTICIPATED OR
ACQUIESCED IN THE WRONG . . . ."  SEE HYAMS V. OLD DOMINION CO., 113
ME. 294, 302, 93 A. 747, 750 (1915).  /9/  THUS, AMOSKEAG WOULD BE
BARRED FROM MAINTAINING THE PRESENT ACTION UNDER MAINE LAW SINCE IT
ACQUIRED IT SHARES FROM PETITIONERS, THE ALLEGED WRONGDOERS.  MOREOVER,
THE PRINCIPLE THAT THE CORPORATE ENTITY MAY BE DISREGARDED IF EQUITY SO
DEMANDS IS ACCEPTED BY MAINE PRECEDEBTS.  SEE, E.G., BONNAR-VAWTER,
INC. V. JOHNSON, 157 ME. 380, 387 - 388, 173 A. 2D 141, 145 (1961). 
    III     IN REACHING THE CONTRARY CONCLUSION, THE COURT OF
APPEALS STATED THAT IT COULD NOT ACCEPT THE PROPOSITION THAT AMOSKEAG
WOULD BE THE "SOLE BENEFICIARY" OF ANY RECOVERY BY BAR.  482 F.2D, AT
868.  THE COURT NOTED THAT IN VIEW OF THE RAILROAD'S STATUS AS A "QUASI
PUBLIC"  CORPORATION AND THE ESSENTIAL NATURE OF THE SERVICES IT
PROVIDES, THE PUBLIC HAD AN IDENTIFIABLE INTEREST IN BAR'S FINANCIAL
HEALTH.  THUS, ANY RECOVERY BY BAR WOULD ACCRUE TO THE BENEFIT OF THE
PUBLIC THROUGH THE IMPROVEMENT IN BAR'S ECONOMIC POSITION AND THE
QUALITY OF ITS SERVICES.  THE COURT THOUGHT THAT THIS FACTOR RENDERED
ANY WINDFALL TO AMOSKEAG IRRELEVANT. 

AT THE OUTSET, WE NOTE THAT THE COURT OF APPEALS' ASSUMPTION THAT
ANY RECOVERY WOULD NECESSARILY BENEFIT THE PUBLIC IS UNWARRANTED.  AS
THAT COURT EXPLICITLY RECOGNIZED, ANY RECOVERY BY BAR COULD BE DIVERTED
TO ITS SHAREHOLDERS, NAMELY AMOSKEAG, RATHER THAN RE-INVESTED IN THE
RAILROAD FOR THE BENEFIT OF THE PUBLIC.  ID., AT 871.  NOR DO WE
BELIEVE THIS POSSIBILITY CAN BE AVOIDED BY RESPONDENTS'  SUGGESTION
THAT THE DISTRICT COURT IMPOSE LIMITATIONS ON THE USE BAR MIGHT MAKE OF
THE RECOVERY.  /10/  THERE IS NO SUPPORT FOR SUCH A RESULT UNDER EITHER
FEDERAL OR STATE LAW.  BAR WOULD BE ENTITLED TO DISTRIBUTE THE RECOVERY
IN ANY LAWFUL MANNER IT MAY CHOOSE, EVEN SUCH DISTRIBUTION RESULTED
ONLY IN PRIVATE ENRICHMENT.  IN SUM, THERE IS NO ASSURANCE THAT THE
PUBLIC WOULD RECEIVE ANY BENEFIT AT ALL FROM THESE FUNDS. 

THE COURT OF APPEALS' POSITION ALSO APPEARS TO OVERLOOK THE FACT
THAT AMOSKEAG, THE ACTUAL BENEFICIARY OF ANY RECOVERY THROUGH ITS
OWNERSHIP OF MORE THAN 99% OF THE BAR SHARES, WOULD BE UNJUSTLY
ENRICHED SINCE IT HAS SUSTAINED NO INJURY.  /11/  IT ACQUIRED
SUBSTANTIALLY ALL THE BAR SHARES FROM BANGOR PUNTA SUBSEQUENT TO THE
ALLEGED WRONGS AND DOES NOT DENY THAT IT RECEIVED FULL VALUE FOR ITS
PURCHASE PRICE.  NO FRAUD OR DECEIT OF ANY KIND IS ALLEGED TO HAVE BEEN
INVOLVED IN THE TRANSACTION.  /12/  THE EQUITABLE PRINCIPLES OF HOME
FIRE PRECLUDE AMOSKEAG FROM REAPING A WINDFALL BY ENHANCING THE VALUE
OF IT BARGAIN TO THE EXTENT OF THE ENTIRE PURCHASE PRICE PLUS AN
ADDITIONAL $2,000,000.  AMOSKEAG WOULD IN EFFECT HAVE ACQUIRED A
RAILROAD WORTH $12,000,000 FOR ONLY $5,000,000.  NEITHER THE FEDERAL
ANTITRUST OR SECURITIES LAWS NOR THE APPLICABLE STATE LAWS CONTEMPLATE
RECOVERY BY AMOSKEAG IN THESE CIRCUMSTANCES.  /13/ 

THE COURT OF APPEALS FURTHER STATED THAT IT WAS IMPORTANT TO INSURE
THAT PETITIONERS WOULD NOT BE IMMUNE FROM LIABILITY FOR THEIR WRONGFUL
CONDUCT AND NOTED THAT BAR'S RECOVERY WOULD PROVIDE A NEEDED DETERRENT
TO MISMANAGEMENT OF RAILROADS.  OUR DIFFICULTY WITH THIS ARGUMENT IS
THAT IT PROVES TOO MUCH.  IF DETERRENCE WERE THE ONLY OBJECTIVE, THEN
IN LOGIC ANY PLAINTIFF WILLING TO FILE A COMPLAINT WOULD SUFFICE.  NO
INJURY OR VIOLATION OF A LEGAL DUTY TO THE PARTICULAR PLAINTIFF WOULD
HAVE TO BE ALLEGED.  THE ONLY PREREQUISITE WOULD BE THAT THE PLAINTIFF
AGREE TO ACCEPT THE RECOVERY, LEST THE SUPPOSED WRONGDOER BE ALLOWED TO
ESCAPE A RECKONING.  SUFFICE IT TO SAY THAT WE HAVE BEEN REFERRED TO NO
AUTHORITY WHICH WOULD SUPPORT SO NOVEL A RESULT, AND WE DECLINE TO
ADOPT IT.  /14/ 

WE THEREFORE CONCLUDE THAT RESPONDENT CORPORATIONS MAY NOT MAINTAIN
THE PRESENT ACTION.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

              SO ORDERED. 

/1/  SEVERAL OF THE ALLEGED ACTS OF CORPORATE MISMANAGEMENT OCCURRED
BETWEEN 1960 AND 1964 WHEN B&A, BAR'S HOLDING COMPANY, WAS IN CONTROL
OF THE RAILROAD.  LIABILITY FOR THESE ACTS WAS NEVERTHELESS SOUGHT TO
BE IMPOSED ON BANGOR PUNTA, EVEN THOUGH IT HAD NO INTEREST IN EITHER
BAR OR B&A DURING THIS PERIOD.  THE APPARENT BASIS FOR LIABILITY WAS
THE 1964 PURCHASE AGREEMENT BETWEEN B&A AND BANGOR PUNTA.  THE
COMPLAINT IN THE INSTANT CASE ALLEGED THAT UNDER THE AGREEMENT BANGOR
PUNTA, THROUTH ITS SUBSIDIARY, ASSUMED "ALL.  . .  DEBTS, OBLIGATIONS,
CONTRACTS AND LIABILITIES" OF B&A. 

/2/  BANGOR PUNTA WAS ALLEGED TO HAVE EFFECTED THESE TRANSACTIONS
THROUGH ITS WHOLLY OWNED SUBSIDIARY BPO.  FOR PURPOSES OF CLARITY, WE
SHALL ATTRIBUTE BPO'S ACTIONS DIRECTLY TO BANGOR PUNTA. 

/3/  RULE 23.1 (1), WHICH SPECIFIES THE REQUIREMENTS APPLICABLE TO
SHAREHOLDER DERIVATIVE ACTIONS, STATES THAT THE COMPLAINT SHALL AVER
THAT "THE PLAINTIFF WAS A SHAREHOLDER OR MEMBER AT THE TIME OF THE
TRANSACTION OF WHICH HE COMPLAINS.  . . ."  THIS PROVISION IS KNOWN AS
THE "CONTEMPORANEOUS OWNERSHIP" REQUIREMENT.  SEE 3B J. MOORE, FEDERAL
PRACTICE 23.1 ET SEQ. (2D ED. 1974). 

/4/  THE "CONTEMPORANEOUS OWNERSHIP" REQUIREMENT IN SHAREHOLDER
DERIVATIVE ACTIONS WAS FIRST ANNOUNCED IN HAWES V. OAKLAND, 104 U.S.
450 (1882), AND SOON THEREAFTER ADOPTED AS EQUITY RULE 97.  THIS
PROVISION WAS LATER INCORPORATED IN EQUITY RULE 27 AND FINALLY IN THE
PRESENT RULE 23.1.  AFTER THE DECISION IN ERIE R. CO. V. TOMPKINS, 304
U.S. 64 (1938), THE QUESTION AROSE WHETHER THE CONTEMPORANEOUS
OWNERSHIP REQUIREMENT WAS SUBSTANTIVE, THEN UNDER THE REGIME OF ERIE IT
COULD NOT BE VALIDLY APPLIED IN FEDERAL DIVERSITY CASES WHERE STATE LAW
PERMITTED A NONCONTEMPORANEOUS SHAREHOLDER TO MAINTAIN A DERIVATIVE
ACTION.  SEE 3B J. MOORE, FEDERAL PRACTICE 23.1.01 - 23.1.15 (2) (2D
ED. 1974).  ALTHOUGH MOST CASES TREAT THE REQUIREMENT AS ONE OF
PROCEDURE, THIS COURT HAS NEVER RESOLVED THE ISSUE.  IBID. 

/5/  THIS PRINCIPLE OBTAINS IN THE GREAT MAJORITY OF JURISDICTION. 
SEE, E.G., RUSSELL V. LOUIS MELIND CO., 331 I11.  APP.  182, 72 N. E.
2D 869 (1947); KLUM V. CLINTON TRUST CO., 183 MISC. 340, 48 N. Y. S. 2D
267 (1944); CLARK V. AMERICAN COAL CO., 86 IOWA 436, 53 N. W. 291
(1892); BOLDENWECK V. BULLIS, 40 COLO. 253, 90 P. 634 (1907).  SEE 13
W. FLETCHER, CYCLOPEDIA CORPORATIONS 5866 (1970 ED.); H. BALLANTINE,
CORPORATIONS 148 (1946 ED.). 

/6/  IN HOME FIRE, DEAN POUND SUGGESTED THAT EQUITABLE PRINCIPLES
MIGHT NOT PREVENT RECOVERY WHERE THE EFFECTS OF THE WRONGFUL ACTS
CONTINUED AND RESULTED IN INJURY TO PRESENT SHAREHOLDERS.  67 NEB.644,
662, 93 N.W. 1024, 1031.  IN THEIR COMPLAINT IN THE INSTANT CASE,
RESPONDENTS ALLEGED THAT "(THE INJURY TO BAR IS A CONTINUING ONE
SURVIVING THE AFORESAID SALE (FROM PETITIONER BPO) TO AMOSKEAG."  THE
DISTRICT COURT NOTED THAT RESPONDENTS ALLEGED NO FACTS TO SUPPORT THIS
CONTENTION AND THEREFORE FOUND ANY SUCH EXCEPTION INAPPLICABLE.  353
F.SUPP.  724, 727 N. 1 (1972).  RESPONDENTS APPARENTLY DID NOT RENEW
THIS CONTENTION ON APPEAL. 

/7/  SIMILARLY, AS TO THE PERIOD BEFORE OCTOBER 1964, AMOSKEAG SEEKS
TO RECOVER FOR WRONGS B&A AND ITS SHAREHOLDERS DID TO THEMSELVES AS
OWNERS OF THE RAILROAD. 

/8/  CONCEDING THE LACK OF EQUITY IN ANY RECOVERY BY AMOSKEAG, THE
DISSENT ARGUES THAT THE PRESENT ACTION CAN NEVERTHELESS BE MAINTAINED
BECAUSE THERE ARE 20 MINORITY SHAREHOLDERS HOLDING LESS THAN 1% OF THE
BAR STOCK, WHO OWNED THEIR SHARES "DURING THE PERIOD FROM 1960 THROUGH
1967 WHEN THE TRANSACTIONS UNDERLYING THE RAILROAD'S COMPLAINT TOOK
PLACE, AND WHO STILL OWNED THAT STOCK IN 1971 WHEN THE COMPLAINT WAS
FILED."  POST, AT 722.  THE DISSENT WOULD CONCLUDE THAT THE EXISTENCE
OF THESE INNOCENT MINORITY SHAREHOLDERS ENTITLES BAR, AND HENCE
AMOSKEAG, TO RECOVER THE ENTIRE $7,000,000 AMOUNT OF ALLEGED DAMAGES. 

ASIDE FROM THE ILLOGIC OF SUCH AN APPROACH, THE DISSENT'S POSITION
IS AT WAR WITH THE PRECEDENTS, FOR THE HOME FIRE PRINCIPLE HAS LONG
BEEN APPLIED TO PRECLUDE FULL RECOVERY BY A CORPORATION EVEN WHERE
THERE ARE INNOCENT MINORITY SHAREHOLDERS WHO ACQUIRED THEIR SHARES
PRIOR TO THE ALLEGED WRONGS.  SEE CASES CITED AT N. 5, SUPRA, AND
ACCOMPANYING TEXT.  THE DISSENT ALSO MISTAKES THE FACTUAL POSTURE OF
THIS CASE, SINCE THE RESPONDENT CORPORATIONS DID NOT INSTITUTE THIS
ACTION FOR THE BENEFIT OF THE MINORITY SHAREHOLDERS.  SEE DISCUSSION AT
N.15, INFRA. 

/9/  IN ADDITION, THE NEW MAINE BUSINESS CORPORATION ACT ADOPTS THE
CONTEMPORANEOUS OWNERSHIP REQUIREMENT FOR SHAREHOLDER DERIVATIVE
ACTIONS.  SEE MAINE REV. STAT. ANN., TIT. 13 - A, 627.1.A (1974).  THIS
PROVISION APPARENTLY BECAME EFFECTIVE TWO DAYS AFTER THE PRESENT ACTION
WAS FILED.  AS THE DISTRICT COURT NOTED, IT IS AN OPEN QUESTION WHETHER
MAINE IN FACT HAD A CONTEMPORANEOUS OWNERSHIP REQUIREMENT PRIOR TO THAT
TIME.  353 F. SUPP., AT 727.  SEE R. FIELD, V. MCKUSICK & L. WROTH,
MAINE CIVIL PRACTICE 23.2, P. 393 (2D ED. 1970).  IN THE ABSENCE OF ANY
INDICATION THAT MAINE WOULD NOT HAVE FOLLOWED THE "PREVAILING VIEW,"
THE DISTRICT COURT DETERMINED THAT THE CONTEMPORANEOUS OWNERSHIP
REQUIREMENT OF FED. RULE CIV. PROC. 23.1 APPLIED. 

/10/  THE COURT OF APPEALS NOTED THAT ITS DECISION "IS NOT
CONDITIONED ON THE DEVISING OF COURT-IMPOSED LIMITATIONS ON THE USES OF
ANY CORPORATE RECOVERY."  482 F. 2D 865, 871.  COUNSEL FOR RESPONDENTS
ALSO ADMITTED AT ORAL ARGUMENT THAT BAR HAD NO LEGAL OBLIGATION TO USE
ITS RECOVERY TO IMPROVE THE RAILROAD'S SERVICES IN ORDER TO BENEFIT THE
PUBLIC.  TR. OF ORAL ARG. 17. 

/11/  THE UNJUST ENRICHMENT OF AMOSKEAG IS INEVITABLE.  AS THE OWNER
OF MORE THAN 99% OF THE BAR SHARES, AMOSKEAG WOULD OBVIOUSLY BENEFIT
FROM ANY INCREASE IN THE VALUE OF ITS INVESTMENT.  HERE, THE INCREASED
VALUE WOULD BE OF DRAMATIC PROPORTIONS, WITH AN INFLUX OF $7,000,000
INTO A RAILROAD PURCHASED FOR ONLY $5,000,000.  THE DISSENT'S
SUGGESTION THAT THIS SUBSTANTIAL INFUSION OF CAPITAL, IF DEVOTED TO
"PLAINT AND EQUIPMENT," WOULD NOT ENCHANCE "EARNING CAPACITY" OR
"BALANCE SHEET STRENGTH" (POST, AT 725) WILL COME AS A SURPRISE TO
REGULATORY BODIES, RAILROAD MANAGEMENT, AND INVESTORS. 

RESPONDENTS HAVE ALSO CONCEDED, BOTH IN THEIR BRIEF AND AT ORAL
ARGUMENT, THAT THE PRESENT ACTION COULD NOT BE MAINTAINED IF AMOSKEAG
WERE THE REAL PARTY IN INTEREST, OR ALTERNATIVELY, IF ONLY AN
UNREGULATED PRIVATE CORPORATION WERE INVOLVED.  BRIEF FOR RESPONDENTS
28 - 29; TR. OF ORAL ARG. 19 - 20. 

/12/  THE DISSENT'S SUGGESTION (POST, AT 723 - 724) THAT AMOSKEAG, A
HIGHLY SOPHISTICATED INVESTOR, WAS DEFRAUDED IN THE PURCHASE
TRANSACTION AND THAT IT HAS SUFFERED AN INJURY IS WITHOUT SUPPORT IN
THE RECORD.  NOT EVEN AMOSKEAG HAS EVER SO ASSERTED, IN EITHER THE
COMPLAINT, THE BRIEFS, OR AT ORAL ARGUMENT.  AND IN GRANTING THE MOTION
FOR SUMMARY JUDGMENT, THE DISTRICT COURT EXPRESSLY OBSERVED THAT
AMOSKEAG DID NOT CONTEND THAT IT WAS DEFRAUDED IN THE PURCHASE
TRANSACTION.  353 F. SUPP., AT 726.  THIS STATEMENT HAS SINCE STOOD
UNCONTROVERTED BY AMOSKEAG.  IN SHORT, PRIOR TO THE DISSENT TODAY, IT
HAS NEVER BEEN ALLEGED OR SUGGESTED THAT AMOSKEAG DID NOT ACQUIRE
EXACTLY WHAT IT BARGAINED FOR IN THIS TRANSACTION. 

/13/  THE DISSENT MAKES MUCH OF THE SUPPOSED PUBLIC INTEREST IN
RAILROADS AND THE POWER OF A COURT OF EQUITY TO ENSURE THAT THE PUBLIC
WILL ACTUALLY BE BENEFITED BY ANY RECOVERY.  POST, AT 724 - 725, 727 -
730.  THIS ARGUMENT MISSES THE POINT.  TO BEGIN WITH, THE PRESENT
ACTION IS, IN SUBSTANCE, A TYPICAL DERIVATIVE SUIT SEEKING AN
ACCOUNTING FROM THE PREVIOUS CONTROLLING SHAREHOLDER FOR VARIOUS ACTS
OF CORPORATE WASTE AND MISMANAGEMENT.  IT IS SETTLED LAW THAT THE
FIDUCIARY DUTY OWED BY A CONTROLLING SHAREHOLDER EXTENDS PRIMARILY TO
THOSE WHO HAVE A TANGIBLE INTEREST IN THE CORPORATION.  SIMILARLY, THE
RECOVERY PROVIDED IS INTENDED TO COMPENSATE, NOT THE PUBLIC GENERALLY,
BUT THOSE WHO HAVE BEEN INJURED AS A RESULT OF A BREACH OF A DUTY OWED
TO THEM IN THE PRESENT CASE, HOWEVER, THE ACTUAL BENEFICIARY OF ANY
RECOVERY, AMOSKEAG, HAS SUFFERED NEITHER AN INJURY NOR A BREACH OF ANY
LEGAL DUTY.  IN SHORT, AMOSKEAG HAS NO CAUSE OF ACTION. 

THE DISSENT ARGUES THAT RESPONDENTS' COMPLAINT IS BASED ON FEDERAL
ANTITRUST AND SECURITIES STATUTES AND THAT SUCH LAWS ARE DESIGNED IN
PART TO BENEFIT THE PUBLIC.  WITH THAT MUCH WE AGREE.  BUT THE
STATUTORY DESIGN HAS NOT BEEN EFFECTUATED THROUGH THE INDISCRIMINATE
PROVISION OF CAUSES OF ACTION TO EVERY CITIZEN.  RATHER, THESE STATUTES
CREATE SPECIFICALLY DEFINED LEGAL DUTIES TO PARTICULAR PLAINTIFFS AND
VEST THE APPROPRIATE CAUSES OF ACTION IN THEM ALONG.  HERE, THE
STATUTORILY DESIGNATED PLAINTIFFS ARE RESPONDENT CORPORATIONS.  BUT, AS
WE HAVE STATED, THESE PLAINTIFFS CANNOT MAINTAIN THE PRESENT ACTION
BECAUSE A RECOVERY BY AMOSKEAG WOULD VIOLATE ESTABLISHED PRINCIPLES OF
EQUITY. 

/14/  AS DEAN POUND STATED IN REPLY TO A SIMILAR ARGUMENT IN HOME
FIRE: 

"BUT IT IS SAID THE DEFENDANT BARBER, BY REASON OF HIS
DELINQUENCIES, IS IN NO POSITION TO ASK THAT THE COURT LOOK BEHIND THE
CORPORATION TO THE REAL AND SUBSTANTIAL PARTIES IN INTEREST.  . . . WE
DO NOT THINK SUCH A PROPOSITION CAN BE MAINTAINED.  IT IS NOT THE
FUNCTION OF COURTS OF EQUITY TO ADMINISTER PUNISHMENT.  WHEN ONE PERSON
HAS WRONGED ANOTHER IN A MATTER WITHIN ITS JURISDICTION, EQUITY WILL
SPARE NO EFFORT TO REDRESS THE PERSON INJURED, AND WILL NOT SUFFER THE
WRONGDOER TO ESCAPE RESTITUTION TO SUCH PERSON THROUGH ANY DEVICE OR
TECHNICALITY.  BUT THIS IS BECAUSE OF ITS DESIRE TO RIGHT WRONGS, NOT
BECAUSE OF A DESIRE TO PUNISH ALL WRONG-DOERS.  IF A WRONG-DOER
DESERVES TO BE PUNISHED, IT DOES NOT FOLLOW THAT OTHERS ARE TO BE
INRICHED AT HIS EXPENSE BY A COURT OF EQUITY.  A PLAINTIFF MUST RECOVER
ON THE STRENGTH OF HIS OWN CASE, NOT ON THE WEAKNESS OF DEFENDANT'S
CASE.  IT IS HIS RIGHT, NOT THE DEFENDANT'S WRONG-DOING, THAT IS THE
BASIS OF RECOVERY.  WHEN IT IS DISCLOSED THAT HE HAS NO STANDING IN
EQUITY, THE DEGREE OF WRONG-DOING OF THE DEFENDANT WILL NOT AVAIL
HIM."  67 NEB., AT 673, 93 N. W., AT 1035.     /15/  OUR DECISION RESTS
ON THE CONCLUSION THAT EQUITABLE PRINCIPLES PRECLUDE RECOVERY BY
AMOSKEAG, THE PRESENT OWNER OF MORE THAN 99% OF THE BAR SHARES.  THE
RECORD DOES NOT REVEAL WHETHER THE MINORITY SHAREHOLDERS WHO HOLD THE
REMAINING FRACTION OF 1% OF THE BAR SHARES STAND IN THE SAME POSITION
AS AMOSKEAG.  SOME COURTS HAVE ADOPTED THE CONCEPT OF A PRO-RATA
RECOVERY WHERE THERE ARE INNOCENT MINORITY SHAREHOLDERS.  UNDER THIS
PROCEDURE, DAMAGES ARE DISTRIBUTED TO THE MINORITY SHAREHOLDERS
INDIVIDUALLY ON A PROPORTIONAL BASIS, EVEN THOUGH THE ACTION IS BROUGHT
IN THE NAME OF THE CORPORATION TO ENFORCE PRIMARY RIGHTS.  SEE, E. G.,
MATTHEWS V. HEADLEY CHOCOLATE CO., 130 MD. 523, 536 - 540, 100 A. 645,
650 - 652 (1917).  IN THE PRESENT CASE, RESPONDENTS HAVE EXPRESSLY
DISAVOWED ANY INTENT TO OBTAIN A PRO-RATE RECOVERY ON BEHALF OF THE 1%
MINORITY SHAREHOLDERS OF BAR.  WE THEREFORE DO NOT REACH THE QUESTION
WHETHER SUCH RECOVERY WOULD BE APPROPRIATE. 

THE DISSENT ASSERTS THAT THE ALLEGED ACTS OF CORPORATE MISMANAGEMENT
HAVE PLACEED BAR "CLOSE TO THE BRINK OF BANKRUPTCY" AND THAT THE
PRESENT ACTION IS MAINTAINED FOR THE BENEFIT OF BAR'S CREDITORS.  POST,
AT 726.  WITH ALL RESPECT, IT APPEARS THAT THE DISSENT HAS SOUGHT TO
REDRAFT RESPONDENTS' COMPLAINT.  AS THE DISTRICT COURT NOTED,
RESPONDENTS HAVE NOT BROUGHT THIS ACTION ON BEHALF OF ANY CREDITORS. 
353 F. SUPP., AT 726.  INDEED, THEY NEVER SO CONTENDED.  MOREOVER,
RESPONDENTS HAVE CONCEDED THAT THE FINANCIAL HEALTH OF THE RAILROAD IS
EXCELLENT.  TR. OF ORAL ARG. 18. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THIS SUIT, BROUGHT BY AND IN THE NAME OF RESPONDENT RAILROAD AND ITS
WHOLLY OWNED SUBSIDIARY, SEEKS TO RECOVER DAMAGES FOR THE CONVERSION
AND MISAPPROPRIATION OF CORPORATE ASSETS ALLEGEDLY COMMITTED BY
PETITIONERS, BANGOR PUNTA AND ITS WHOLLY OWNED SUBSIDIARY, DURING A
PERIOD WHEN THE LATTER WAS THE MAJORITY SHAREHOLDER OF THE RAILROAD. 
ORDINARILY, OF COURSE, A CORPORATION MAY SEEK LEGAL REDRESS AGAINST
THOSE WHO HAVE DEFRAUDED IT OF ITS ASSETS.  AND WHEN IT DOES SO, "A
CORPORATION AND ITS STOCKHOLDERS ARE GENERALLY TO BE TREATED AS
SEPARATE ENTITIES.  ONLY UNDER EXCEPTIONAL CIRCUMSTANCES . . . CAN THE
DIFFERENCE BE DISREGARDED."  BURNET V. CLARK, 287 U.S. 410, 415
(1932).  SEE ALSO NEW COLONIAL ICE CO. V. HELVERING, 292 U.S. 435, 442
(1934). 

THE COURT FINDS SUCH EXCEPTIONAL CIRCUMSTANCES HERE BECAUSE, IN ITS
VIEW, ANY RECOVERY HAD BY THE CORPORATION WILL BE A WINDFALL TO
AMOSKEAG, THE PRESENT OWNER OF APPROXIMATELY 99% OF THE CORPORATION'S
STOCK, WHICH PURCHASED MOST OF THAT STOCK FROM THE PETITIONERS, THE
ALLEGED WRONGDOERS.  THE COURT THEREFORE CONCLUDES THAT THIS SUIT MUST
BE BARRED UNDER THE EQUITABLE PRINCIPLES SET FORTH IN HOME FIRE
INSURANCE CO. V. BARBER, 67 NEB. 644, 93 N. W. 1024 (1903). 

I CANNOT AGREE.  HAVING READ THE PRECEDENTS RELIED UPON BY THE
MAJORITY, I RESPECTFULLY SUBMIT THAT THEY NOT ONLY DO NOT SUPPORT, BUT
INDEED DIRECTLY CONTRADICT THE RESULT REACHED TODAY.  WHILE PURPORTING
TO RELY ON SETTLED PRINCIPLES OF EQUITY, THE COURT SADLY MISTAKES THE
FACTS OF THIS CASE AND THE ESTABLISHED POWERS OF AN EQUITY COURT.  IN
MY VIEW, NO WINDFALL RECOVERY TO AMOSKEAG IS INEVITABLE, OR EVEN
LIKELY, ON THE FACTS OF THIS CASE.  BUT EVEN IF RECOVERY BY RESPONDENTS
WOULD IN FACT BE A WINDFALL TO AMOSKEAG, THE COURT DISREGARDS THE
INTERESTS OF THE RAILROAD'S CREDITORS, AS WELL AS THE SUBSTANTIAL
PUBLIC INTEREST IN THE CONTINUED FINANCIAL VIABILITY OF THE NATION'S
RAILROADS WHICH HAVE BEEN SO HEAVILY PLAGUED BY CORPORATE
MISMANAGEMENT, AND IGNORES THE POWERS OF THE COURT TO IMPOSE EQUITABLE
CONDITIONS ON A CORPORATION'S RECOVERY SO AS TO INSURE THAT THESE
INTERESTS ARE PROTECTED.  THE COURT'S DECISION IS ALSO INCONSISTENT
WITH PRIOR DECISIONS OF THIS COURT LIMITING THE APPLICATION OF
EQUITABLE DEFENSES WHEN THEY IMPEDE THE VINDICATION, THROUGH PRIVATE
DAMAGE ACTIONS, OF THE IMPORTANT POLICIES OF THE FEDERAL ANTITRUST
LAWS. 

        I 

THE MAJORITY PLACES PRIMARY RELIANCE ON DEAN POUND'S DECISION IN
HOME FIRE INSURANCE CO. V. BARBER, SUPRA.  IN THAT CASE, ALL OF THE
SHARES OF THE PLAINTIFF CORPORATION HAD BEEN ACQUIRED FROM THE ALLEGED
WRONGDOERS AFTER THE TRANSACTIONS GIVING RISE TO THE CAUSES OF ACTION
STATED IN THE COMPLAINT.  SINCE NONE OF THE CORPORATION'S SHAREHOLDERS
HELD STOCK AT THE TIME OF THE ALLEGED WRONGFUL TRANSACTIONS, NONE HAD
BEEN INJURED THEREBY.  DEAN POUND THEREFORE HELD THAT EQUITY BARRED THE
CORPORATION FROM PURSUING A CLAIM WHERE NONE OF ITS SHAREHOLDERS COULD
COMPLAIN OF INJURY. 

DEAN POUND THOUGHT IT CLEAR, HOWEVER, THAT THE OPPOSITE RESULT WOULD
OBTAIN IF ANY OF THE PRESENT SHAREHOLDERS 

"ARE ENTITLED TO COMPLAIN OF THE ACTS OF THE DEFENDANT AND OF HIS
PAST MANAGEMENT OF THE COMPANY; FOR IF ANY OF THEM SO ENTITLED, THERE
CAN BE NO DOUBT OF THE RIGHT AND DUTY OF THE CORPORATION TO MAINTAIN
THIS SUIT.  IT WOULD BE MAINTAINABLE IN SUCH A CASE EVEN THOUGH THE
WRONG-DOERS CONTINUED TO BE STOCK-HOLDERS AND WOULD SHARE IN THE
PROCEEDS."  67 NEB., AT 655, 93 N. W., AT 1028.  CF. CAPITAL WINE &
SPIRIT CORP. V. POKRASS, 277 APP. DIV. 184, 186, 98 N Y. S. 2D 291, 293
(1950), AFF'D, 302 N. Y. 734, 98 N.E. 2D 704 (1951). 

THE RATIONALE FOR THE DISTINCTION DRAWN BY DEAN POUND IS SIMPLE
ENOUGH.  THE SOLE SHAREHOLDER WHO DEFRAUDS OR MISMANAGES HIS OWN
CORPORATION HURTS ONLY HIMSELF.  FOR THE CORPORATION TO SUE HIM FOR HIS
WRONGS IS SIMPLY TO TAKE MONEY OUT OF HIS RIGHT POCKET AND PUT IT IN
HIS LEFT.  IT IS THEREFORE APPROPRIATE FOR EQUITY TO INTERVENE TO
PIERCE THE CORPORATE VEIL.  BUT WHERE THERE ARE MINORITY SHAREHOLDERS,
MISAPPROPRIATION AND CONVERSION OF CORPORATE ASSETS INJURE THEIR
INTERESTS AS WELL AS THE INTEREST OF THE MAJORITY SHAREHOLDER.  THE LAW
IMPOSES UPON THE DIRECTORS OF A CORPORATION A FIDUCIARY OBLIGATION TO
ALL OF THE CORPORATION SHAREHOLDERS, AND PART OF THAT OBLIGATION TO ALL
OF THE CORPORATION'S SHAREHOLDERS, AND PART OF THAT OLIGATION IS TO USE
DUE CARE TO ENSURE THAT THE CORPORATION SEEK REDRESS WHERE A MAJORITY
SHAREHOLDER HAS DRAINED THE CORPORATION'S RESOURCES FOR HIS OWN BENEFIT
AND TO THE DETRIMENT OF MINORITY SHAREHOLDERS.  /1/  INDEED, MINORITY
SHAREHOLDERS WOULD BE ENTITLED TO BRING A DERIVATIVE ACTION, ON BEHALF
OF THE CORPORATION, TO ENFORCE THE CORPORATION'S RIGHT TO RECOVER FOR
THE INJURY DONE TO IT, IF THE DIRECTORS TURNED DOWN A REQUEST TO SEEK
RELIEF.  /2/  AND ANY RECOVERY OBTAINED IN SUCH AN ACTION WOULD BELONG
TO THE CORPORATION, NOT THE MINORITY SHAREHOLDERS AS INDIVIDUALS, FOR
THE SHAREHOLDER IN A DERIVATIVE ACTION ENFORCES NOT HIS OWN INDIVIDUAL
RIGHTS, BUT RIGHTS WHICH THE CORPORATION HAS.  SEE MEYER V. FLEMING 327
U.S. 161, 167 (1946); ROSS V. BERNHARD, 396 U.S. 531, 538 (1970);
KOSTER V. LUMBERMENS MUTUAL CO., 330 U.S. 518, 522 (1947). 

THESE ELEMENTARY PRINCIPLES OF CORPORATE LAW SHOULD CONTROL THIS
CASE.  ALTHOUGH FIRST BANGOR PUNTA AND THEN AMOSKEAG OWNED THE GREAT
MAJORITY OF THE SHARES OF RESPONDENT RAILROAD, THE RECORD SHOWS THAT
THERE ARE MANY MINORITY SHAREHOLDERS WHO OWNED BAR STOCK DURING THE
PERIOD FROM 1960 THROUGH 1967 WHEN THE TRANSACTIONS UNDERLYING THE
RAILROAD'S COMPLAINT TOOK PLACE, AND WHO STILL OWNED THAT STOCK IN 1971
WHEN THE COMPLAINT WAS FILED.  /3/  ANY ONE OF THESE MINORITY
SHAREHOLDERS WOULD HAVE HAD THE RIGHT, DURING THE 1960 - 1967 PERIOD,
AS WELL AS THEREAFTER, TO BRING A DERIVATIVE ACTION ON BEHALF OF THE
CORPORATION AGAINST THE MAJORITY SHAREHOLDER FOR MISAPPROPRIATION OF
CORPORATE ASSETS.  AS DEAN POUND STATES, SUCH AN ACTION COULD BE
BROUGHT, "EVEN THOUGH THE WRONGDOERS CONTINUED TO BE STOCKHOLDERS AND
WOULD SHARE IN THE PROCEEDS."  67 NEB., AT 655, 93 N. W., AT 1028. 

IT IS IRONIC, THEN, TO SEE THE COURT ADOPT A RESULT WHICH BARS THE
CORPORATION ITSELF FROM BRINGING A SUIT WHICH A MINORITY SHAREHOLDER
COULD HAVE BROUGHT IN THE CORPORATION'S BEHALF.  AND IT IS PECULIAR, TO
SAY THE LEAST, THAT THE LAW SHOULD PREVENT THE DIRECTORS OF BAR FROM
FULFILLING THE FIDUCIARY OBLIGATION TO MINORITY SHAREHOLDERS WHICH THE
LAW DEVOLVES UPON THEM.  SUCH A RESULT NOT ONLY CANNOT BE DERIVED FROM
HOME FIRE, BUT IS DIRECTLY IN CONFLICT WITH ITS HOLDING. 

        II 

EVEN ASSUMING, HOWEVER, THAT THE EQUITABLE PRINCIPLES OF HOME FIRE
SHOULD BE EXTENDED TO THE SITUATION WHERE THE PRESENT MAJORITY
SHAREHOLDER DOES NOT OWN ALL THE OUTSTANDING SHARES, THERE ARE OTHER
FRATURES DISTINGUISHING THIS CASE FROM HOME FIRE AND CALLING FOR THE
RECOGNITION OF THE REILROAD'S RIGHT TO MAINTAIN THIS ACTION.  TO BEGIN
WITH, IT IS NOT AT ALL CLEAR FROM THE RECORD THAT ANY RECOVERY HAD BY
THE RAILROAD WILL IN FACT BE A WINDFALL TO AMOSKEAG, ITS PRESENT
MAJORITY SHAREHOLDER. 

THE COURT RELIES PRINCIPALLY ON ITS OWN OBSERVATION THAT AMOSKEAG
WAS NOT DEFRAUDED OR DECEIVED IN ITS TRANSACTION WITH PETITIONERS, THAT
IT RECEIVED FULL VALUE FOR ITS MONEY, AND THAT IT HAS RECEIVED NO
INJURY WHATSOEVER.  SEE ANTE, AT 711.  THE RECORD, IN MY VIEW, SIMPLY
WILL NOT SUPPORT THESE "FINDINGS."  THAT THERE IS NO SPECIFIC
ALLEGATION IN THE COMPLAINT THAT AMOSKEAG WAS DECEIVED OR OTHERWISE
INJURED BY PETITIONERS IS UNDERSTANDABLE, SINCE THIS LAWSUIT IS NOT
BROUGHT BY AMOSKEAG, BUT RATHER BY RESPONDENT RAILROAD IN ITS OWN
NAME. 

FURTHERMORE, A FAIR READING OF THE COMPLAINT INDICATES THAT AMOSKEAG
MOST LIKELY HAS SUFFERED INJURY.  THE CAUSES OF ACTION RELATE PRIMARILY
TO TRANSACTIONS INVOLVING THE RAILROAD AND ITS FORMER MAJORITY
STOCKHOLDER BETWEEN 1960 AND 1967.  AMOSKEAG PURCHASED ITS SHARES FROM
PETITIONERS ON OCTOBER 2, 1969, AFTER THESE EVENTS.  BUT NOWHERE IN THE
RECORD IS THERE ANY CONCESSION THAT, AT THE TIME OF ITS PURCHASE,
AMOSKEAG WAS FULLY AWARE OF THE MISUSES OF CORPORATE ASSETS ALLEGED IN
THE COMPLAINT.  TO THE COMTRARY, THE COMPLAINT ASSERTS THAT AT THE TIME
OF AMOSKEAG'S PURCHASE, THE INTERSTATE COMMERCE COMMISSION'S BUREAU OF
ACCOUNTS WAS IN THE MIDDLE OF AN INVESTIGATION INTO THE RELATIONSHIP
BETWEEN THE RAILROAD AND ITS MAJORITY SHAREHOLDER.  ITS REPORT, NOT
MADE PUBLIC UNTIL JULY 1971, LAID BARE FOR THE FIRST TIME THE WRONGFUL
INTERCORPORATE TRANSACTIONS THAT ARE THE SUBJECT OF THE PRESENT SUIT
AND RECOMMENDED THAT LEGAL REMEDIES BE EXPLORED TO REQUIRE PETITIONERS
TO PAY BACK TO THE CARRIER ASSETS TAKEN WITHOUT COMPENSATION AND
CHARGES MADE WHERE NO SERVICES WERE PERFORMED.  THE PLAIN IMPORT OF THE
COMPLAINT IS THA AMOSKEAG DID KNOW OF THESE WRONGFUL TRANSACTIONS PRIOR
TO PUBLIC DISCLOSURE OF THIS REPORT.  IN FACT, AN INTRODUCTORY
PARAGRAPH OF THE COMPLAINT ALLEGES: "ALL WRONGS HEREINAFTER COMPLAINED
OF WERE DISCOVERED BY BAR'S NEW MANAGEMENT'S INVESTIGATION OF ALL FACTS
OF THE INTER-CORPORATE RELATIONSHIPS AND WERE NOT PREVIOUSLY KNOWN TO
THE NEW BAR MANAGEMENT."  APP. 6.  AT THIS STAGE IN THE LITIGATION,
SUCH ALLEGATIONS MUST BE ACCEPTED AS TRUE, THE DISTRICT COURT HAVING
DISMISSED THE SUIT WITHOUT INQUIRING INTO THE TRUTH OF ANY OF ITS
CLAIMS.  THERE IS ACCORDINGLY NO BASIS IN THE RECORD FOR PRESUMING THAT
AMOSKEAG WAS NOT THE VICTIM OF ANY DECEPTION. 

BUT EVEN ASSUMING THAT AMOSKEAG RECIVED COLSE TO FULL VALUE FOR ITS
MONEY, IT IS BY NO MEANS INEVITABLE THAT ANY RECOVERY OBTAINED BY THE
RAILROAD WILL INURE TO AMOSKEAG'S BENEFIT, RATHER THAN TO THE BENEFIT
OF THE CORPORATION, ITS CREDITORS, AND PUBLIC IT AIMS TO SERVE.  THE
COURT MAKES MUCH OF THE SUPPOSED LACK OF POWER OF A COURT OF EQUITY TO
IMPOSE LIMITATIONS ON THE USE BAR MIGHT MAKE OF THE RECOVERY.  ANTE, AT
715.  "TRADITIONALLY,"  HOWEVER, "EQUITY HAS BEEN CHARACTERIZED BY A
PRACTICAL FLEXIBILITY IN SHAPING ITS REMEDIES AND BY A FACILITY FOR
ADJUSTING AND RECONCILING PUBLIC AND PRIVATE NEEDS."  BROWN V. BOARD OF
EDUCATION, 349 U.S. 294, 300 (1955).  "A COURT OF EQUITY MAY IN ITS
DISCRETION IN THE EXERCISE OF THE JURISDICTION COMMITTED TO IT GRANT OR
DENY RELIEF UPON PERFORMANCE OF A CONDITION WHICH WILL SAFEGUARD THE
PUBLIC INTEREST."  SEC V. UNITED STATES REALTY & IMPROVEMENT CO., 310
U.S. 434, 455 (1940).  /4/  INDEED, IF THERE BE ANY DOUBT AS TO THE
POWER OF A COURT OF EQUITY, BAR INFORMED THE DISTRICT COURT THAT THE
RAILROAD WOULD VOLUNTARILY ENTER INTO A STIPULATION TO ENSURE THAT ANY
RECOVERY WOULD BE REINVESTED IN THE RAILROAD, FOR UPGRADING THE RIGHT
OF-WAY AND FOR NEW EQUIPMENT, AND THAT AMOSKEAG WOULD VOLUNTARILY JOIN
THE STIPULATION IF REQUESTED.  BRIEF FOR RESPONDENTS 30. 

IMPROVED EQUIPMENT AND RIGHTS-OF -WAY, OF COURSE, MIGHT BENEFIT
AMOSKEAG INDIRECTLY BY INCREASING TO SOME EXTENT THE VALUE OF ITS
EQUITY.  BUT SUCH EXPENDITURES WOULD HARDLY BRING A DOLLAR-FOR-DOLLAR
INCREASE IN THE PRICE AMOSKEAG WOULD RECEIVE IF IT WERE TO SEE ITS
STOCK.  THE VALUE OF A SOLVENT RAILROAD'S STOCK IS DETERMINED BY MANY
FACTORS--EARNING CAPACITY; HISTORICAL INCOME, EXCLUDING NONRECURRING
ITEMS; BALANCE SHEET STRENGTH; DIVIDEND HISTORY; AND CONDITION OF PLANT
AND EQUIPMENT.  UNDER AN APPROPRIATE DECREE, ONLY THE LAST OF THESE
FACTORS WOULD BE ENHANCED BY THE RAILROAD'S RECOVERY.  IT IS THEREFORE
NOT INEVITABLE THAT ANY RECOVERY HAD BY THE RAILROAD WOULD BENEFIT ITS
CURRENT MAJORITY SHAREHOLDER AND THERE IS NO BASIS, IN ANY EVENT, FOR
DEEMING SUCH A BENEFIT A WINDFALL. 

        III 

BUT LET US ASSUME THAT THE MAJORITY IS CORRECT IN FINDING SOME
WINDFALL RECOVERY TO AMOSKEAG INEVITABLE IN THIS CASE.  THIS IS STILL
BUT ONE OF SEVERAL FACTORS WHICH A COURT OF EQUITY SHOULD CONDSIDER IN
DETERMINING WHETHER THE PUBLIC INTEREST WOULD BEST BE SERVED BY
PIERCING THE CORPORATE VEIL IN ORDER TO BAR THIS ACTION.  THE PUBLIC
INTEREST AGAINST WINDFALL RECOVERIES IS NO DOUBT A SIGNIFICANT FACTOR
WHICH A COURT OF EQUITY SHOULD CONSIDER.  BUT IN THIS CASE IT IS
CLEARLY OUTWEIGHED BY OTHER CONSIDERATIONS, EQUALLY DESERVING THE
RECOGNITION OF A COURT OF EQUITY, SUPPORTING THE MAINTENANCE OF THE
RAILROAD'S ACTION AGAINST THOSE WHO HAVE DEFRAUDED IT OF ITS ASSETS. 
EQUITY SHOULD TAKE INTO ACCOUNT, FOR EXAMPLE, THE RAILROAD'S
RELATIONSHIPS WITH ITS CREDITORS.  BAR OWES A DEBT OF APPROXIMATELY $23
MILLION, INDICATING ALMOST 90% DEBT OWNERSHIP OF THE ENTERPRISE.  APP. 
7.  IF THE ALLEGATIONS OF THE COMPLAINT ARE TRUE, THE CONVERSION AND
MISAPPROPRIATION OF CORPORATE ASSETS COMMITTED BY PETITIONERS PLACED
THE RAILROAD CLOSE TO THE BRINK OF BANKRUPTCY, TO THE CERTAIN DETRIMENT
OF ITS CREDITORS.  THE COMPLAINT ALLEGES THAT NET REVENUE IN 1970 WAS A
LOSS OF APPROXIMATELY $1.3 MILLION.  ID., AT 5.  AND ONE OF THE
SPECIFIC CAUSES OF ACTION IN THE COMPLAINT IS THAT BANGOR PUNTA
PROCURED THE DECLARATION BY BAR OF A DIVIDEND WHICH WAS UNLAWFUL UNDER
A MORTGAGE BOND INDENTURE DUE TO INSUFFICIENT WORKING CAPITAL.  ID., AT
15 - 18. 

SURELY THE CORPORATION, AS AN ENTITY INDEPENDENT OF ITS
SHAREHOLDERS, HAS AN INTEREST OF ITS OWN IN ASSURING THAT IT CAN MEET
ITS RESPONSIBILITY TO ITS CREDITORS.  AND I DO NOT SEE HOW IT CAN DO SO
UNLESS IT REMAINS FREE TO BRING SUIT AGAINST THOSE WHO HAVE DEFRAUDED
IT OF ITS ASSETS.  THE COURT'S RESULT, I FEAR, ONLY GIVES ADDED
INCENTIVE TO ABUSES OF THE CORPORATE FORM WHICH EQUITY HAS LONG SOUGHT
TO DISCOURAGE--ALLOWING A MAJORITY SHAREHOLDER TO TAKE ADVANTAGE OF THE
PROTECTIONS OF THE CORPORATE FORM WHILE BLEEDING THE CORPORATION TO THE
DETRIMENT OF ITS CREDITORS, AND THEN PERMITTING THE MAJORITY
SHAREHOLDER TO SELL THE CORPORATION AND REMAIN FREE FROM ANY LIABILITY
FOR ITS WRONGDOING. 

MORE IMPORTANTLY, EQUITY SHOULD TAKE INTO ACCOUNT THE PUBLIC
INTEREST AT STAKE IN THIS LITIGATION.  AS THE COURT OF APPEALS
INDICATED: 

     "THE PUBLIC'S INTEREST, UNLIKE THE PRIVATE INTEREST OF

  STOCKHOLDER OR CREDITOR, IS NOT EASILY DEFINED OR QUANTIFIED, YET

  IT IS REAL AND CANNOT, WE THINK, BE OVERLOOKED IN DETERMINING

WHETHER THE CORPORATION, SUING IN ITS OWN RIGHT, SHOULD BE

  ESTOPPED BY EQUITABLE DEFENSES PERTAINING ONLY TO ITS CONTROLLING

  STOCKHOLDER."  482 F. 2D 865, 868 (CA1 1973). 

THE PUBLIC'S INTEREST IN THE FINANCIAL HEALTH OF RAILROADS HAS LONG
BEEN RECOGNIZED BY THIS COURT: 

"(RAILWAYS ARE PUBLIC CORPORATIONS ORGANIZED FOR PUBLIC PURPOSES,
GARANTED VALUABLE FRANCHISES AND PRIVILEGES, AMONG WHICH THE RIGHT TO
TAKE THE PRIVATE PROPERTY OF THE CITIZEN IN INVITUM IS NOT THE LEAST,.
. .  MANY OF THEM ARE THE DONEES OF LARGE TRACTS OF PUBLIC LANDS AND OF
GIFTS OF MONEY BY MUNICIPAL CORPORATIONS, AND . . . THEY ALL PRIMARILY
OWE DUTIES TO THE PUBLIC OF A HIGHER NATURE EVEN THAN THAT OF EARNING
LARGE DIVIDENDS FOR THEIR SHAREHOLDERS.  THE BUSINESS WHICH THE
RAILROADS DO IS OF A PUBLIC NATURE, CLOSELY AFFECTING ALMOST ALL
CLASSES IN THE COMMUNITY . . . ."  UNITED STATES V. TRANS-MISSOURI
FREIGHT ASSN., 166 U.S 290, 332 - 333 (1897). 

THE SAME PUBLIC INTEREST HAS BEEN RECOGNIZED IN A WIDE VARIETY OF
LEGISLATIVE ENACTMENTS.  AS EARLY AS THE TRANSPORTATION ACT OF 1920,
"CONGRESS UNDERTOOK TO DEVELOP AND MAINTAIN, FOR THE PEOPLE OF THE
UNITED STATES, AN ADEQUATE RAILWAY SYSTEM.  IT RECOGNIZED THAT
PRESERVATION OF THE EARNING CAPACITY, AND CONSERVATION OF THE FINANCIAL
RESOURCES, OF INDIVIDUAL CARRIERS IS A MATTER OF NATIONAL CONCERN . . .
."  TEXAS & PACIFIC R. CO. V. GULF, C. & S. F. R. CO., 270 U.S. 266,
277 (1926).  LATER, CONGRESS ADDED 77 TO CHAPTER VIII OF THE BANKRUPTCY
ACT, PROVIDING THAT FINANCIAL REORGANIZATION OF AILING RAILROADS SHOULD
BE ACHIEVED FOR THE BENEFIT OF THE PUBLIC, AND NOT SIMPLY IN THE
INTERESTS OF CREDITORS OR STOCKHOLDERS.  SEE NEW HAVEN INCLUSION CASES,
399 U.S. 392, 492 (1970). 

THE SIGNIFICANCE OF THE PUBLIC INTEREST IN THE FINANCIAL WELL-BEING
OF RAILROADS SHOULD BE SELF-EVIDENT IN THESE TIMES, WITH MANY OF OUR
NATION'S RAILROADS IN DIRE FINANCIAL STRAITS AND WITH SOME OF THE MOST
IMPORTANT LINES THROWN INTO REORGANIZATION PROCEEDINGS.  INDEED, THE
PROSPECT OF LARGE-SCALE RAILROAD INSOLVENCY IN THE NORTHEAST UNITED
STATES WAS DEEMED BY CONGRESS TO PRESENT A NATIONAL EMERGENCY,
PROMPTING ENACTMENT OF THE REGIONAL RAIL REORGANIZATION ACT OF 1973,
PUB. L. 93 - 236, 87 STAT. 985 (1974), IN WHICH THE FEDERAL GOVERNMENT,
FOR THE FIRST TIME, COMMITTED TAX DOLLARS TO A LONG-TERM COMMITMENT TO
PRESERVE ADEQUATE RAILROAD SERVICE FOR THE NATION.  AS THE COURT OF
APPEALS HELD, GIVEN THIS BACKGROUND, "IT WOULD BE UNREALISTIC TO TREAT
A RAILROAD'S ATTEMPT TO SECURE THE REPARATION OF MISAPPROPRIATED ASSETS
AS OF CONCERN ONLY TO ITS CONTROLLING STOCKHOLDER."  482 F.2D, AT 870. 
"(THE PUBLIC HAS A REAL, IF INCHOATE, INTEREST" IN THIS ACTION.  ID.,
AT 871. 

THE COURT GIVES SHORT SHRIFT, HOWEVER, TO THE PUBLIC INTEREST. 
WHILE RECOGNIZING THAT RESPONDENTS' COMPLAINT IS BASED PRIMARILY ON
FEDERAL ANTITRUST AND SECURITIES STATUTES DESIGNED TO BENEFIT THE
PUBLIC, AND WHILE CONCEDING THAT THE STATUTORILY DESIGNATED PLAINTIFFS
ARE RESPONENT CORPORATIONS, THE COURT NEVERTHELESS HOLDS THAT THESE
PLAINTIFFS CANNOT MAINTAIN THIS ACTION BECAUSE ANY RECOVERY BY AMOSKEAG
WOULD VIOLATE ESTABLISHED PRINCIPLES OF EQUITY.  ANTE, AT 716 - 717, N.
13.  I CANNOT AGREE, FOR THE PUBLIC INTEREST AND THE LEGISLATIVE
PURPOSE SHOULD ALWAYS BE HEAVILY WEIGHED BY A COURT OF EQUITY.  AS THIS
COURT HAS FREQUENTLY RECOGNIZED, EQUITY SHOULD PIERCE THE CORPORATE
VEIL ONLY WHEN NECESSARY TO SERVE SOME PARAMOUNT PUBLIC INTEREST, SEE
SCHENLEY CORP. V. UNITED STATES, 326 U.S. 432, 437 (1946); ANDERSON V.
ABBOTT, 321 U.S. 349, 362 (1944), OR "WHERE IT OTHERWISE WOULD PRESENT
AN OBSTACLE TO THE DUE PROTECTION OR ENFORCEMENT OF PUBLIC OR PRIVATE
RIGHTS."  NEW COLONIAL ICE CO. V. HELVERING, 292 U.S., AT 442.  HERE,
HOWEVER, IT IS THE FAILURE TO RECOGNIZE THE RAILROAD'S OWN RIGHT TO
MAINTAIN THIS SUIT WHICH UNDERCUTS THE PUBLIC INTEREST. 

THE COURT'S RESULT SUBSTANTIALLY IMPAIRS ENFORCEMENT OF THE STATE AND
FEDERAL STATUTES UPON WHICH RESPONDENT BASES MANY OF ITS CLAIMS.  FOR
EXAMPLE, 10 OF THE CLAYTON ACT, 15 U.S.C. 20, RELIED ON IN TWO
SUBSTANTIAL COUNTS OF THE COMPLAINT, PROVIDES: 

    "NO COMMON CARRIER ENGAGED IN COMMERCE SHALL HAVE ANY DEALINGS

  IN SECURITIES, SUPPLIES, OR OTHER ARTICLES OF COMMERCE . . . TO

  THE AMOUNT OF MORE THAN $50,000, IN THE AGGREGATE, IN ANY ONE

  YEAR, WITH ANOTHER CORPORATION . . . WHEN THE SAID COMMON CARRIER

  SHALL HAVE UPON ITS BOARD OF DIRECTORS OR AS ITS PRESIDENT . . .

  ANY PERSON WHO IS AT THE SAME TIME A DIRECTOR (OR) MANAGER . . .

  OF . . . SUCH OTHER CORPORATION . . . UNLESS . . . SUCH DEALINGS

SHALL BE WITH, THE BIDDER WHOSE BID IS THE MOST FAVORABLE TO SUCH

  COMMON CARRIER, TO BE ASCERTAINED BY COMPETITIVE BIDDING . . .

  ." 

AS WE HAVE EARLIER HAD OCCASION TO NOTE, 10 IS NOT AN ORDINARY
CORPORATE CONFLICT-OF-INTEREST STATUTE, BUT IS PART OF OUR NATION'S
ANTITRUST LAWS, SPECIFICALLY DESIGNED TO PROTECT COMMON CARRIERS SUCH
AS RAILROADS.  SEE UNITED STATES V. BOSTON & MAINE R. CO., 380 U.S. 157
(1965); MINNEAPOLIS & ST. LOUIS R. CO. V. UNITED STATES, 361 U.S. 173,
190 (1959).  THE PURPOSE OF 10 "WAS TO PROHIBIT A CORPORATION FROM
ABUSING A CARRIER . . . THROUGH OVERREACHING BY, OR OTHER MISFEASANCE
OF, COMMON DIRECTORS, TO THE FINANCIAL INJURY OF THE CARRIER AND THE
CONSEQUENT IMPAIRMENT OF ITS ABILITY TO SERVE THE PUBLIC INTEREST." 
361 U.S. AT 190. 

THE PRIVATE CAUSES OF ACTION BROUGHT BY RESPONDENT RAILROAD UNDER 10
SERVE TO VINDICATE THIS IMPORTANT CONGRESSIONAL POLICY.  SEE KLINGER V.
L.BALTIMORE & OHIO R. CO., 432 F. 2D 506 (CA2 1970).  AND BY BARRING
THIS SUIT, NOTWITHSTANDING THE PLAIN ALLEGATIONS IN THE COMPLAINT THAT
THE CARRIER AS WELL AS THE PUBLIC INTEREST IT SERVES WERE INJURED
THROUGH VIOLATIONS OF THIS SECTION COMMITTED BY PETITIONERS, /5/  THE
COURT DIRECTLY FRUSTRATES THE ENDS OF CONGRESS.  INDEED, THE COURT
ENCOURAGES THE VERY KIND OF ABUSES 10 WAS DESIGNED TO PROHIBIT.  THE
MAJORITY SHAREHOLDER OF A CARRIER CAN CONVERT AND MISAPPROPRIATE ITS
ASSETS THROUGH IMPROPER INTERCORPORATE TRANSACTIONS, WITH THE
"CONSEQUENT IMPAIRMENT OF ITS ABILITY TO SERVE THE PUBLIC INTEREST,"
AND THEN WASH ITS HANDS OF AND REMAIN FREE FROM ANY LEGAL LIABILITY FOR
ITS SATATUTORY VIOLATION BY SELLING OFF ITS INTEREST.  /6/ 

I WOULD FIND COUNSEL INSTEAD IN THIS COURT'S OPINION IN PERMA LIFE
MUFFLERS V. INTERNATIONAL PARTS CORP., 392 U.S. 134, 138 - 139 (1968). 
THE COURT TOOK NOTE IN THAT CASE THAT "(WE HAVE OFTEN INDICATED THE
INAPPROPRIATENESS OF INVOKING BROAD COMMON-LAW BARRIERS TO RELIEF WHERE
A PRIVATE SUIT SERVES IMPORTANT PUBLIC PURPOSES."  AS WE RECOGNIZED, 

"THE PURPOSES OF THE ANTITRUST LAWS ARE BEST SERVED BY INSURING THAT
THE PRIVATE ACTION WILL BE AN EVERPRESENT THREAT TO DETER ANYONE
CONTEMPLATING BUSINESS BEHAVIOR IN VIOLATION OF THE ANTUTRUST LAWS. 
THE PLAINTIFF WHO REAPS THE REWARD OF TREBLE DAMAGES MAY BE NO LESS
MORALLY REPREHENSIBLE THAN THE DEFENDANT, BUT THE LAW ENCOURAGES HIS
SUIT TO FURTHER THE OVERRIDING PUBLIC POLICY IN FAVOR OF COMPETITION. 
A MORE FASTIDIOUS REGARD FOR THE RELATIVE MORAL WORTH OF THE PARTIES
WOULD ONLY RESULT IN SERIOUSLY UNDERMINING THE USEFULNESS OF THE
PRIVATE ACTION AS A BULWARK OF ANTITRUST ENFORCEMENT."  THESE
PRINCIPLES HAVE EVEN GREATER FORCE HERE, SINCE AMOSKEAG, "WHATEVER ITS
OWN LACK OF EQUITY, IS NEITHER A WRONGDOER NOR A PARTICIPANT IN ANY
WRONG."  482 F.2D, AT 870 - 871. 

IN THE FINAL ANALYSIS, THE COURT'S HOLDING DOES A DISSERVICE TO ONE
OF THE MOST SETTLED OF EQUITABLE DOCTRINES, REFLECTED IN THE MAXIM THAT
"(EQUITY WILL NOT SUFFER A WRONG WITHOUT A REMEDY."  INDEPENDENT
WIRELESS TEL. CO. V. RADIO CORP. OF AMERICA, 269 U.S. 459, 472 (1926). 
BECAUSE I WOULD FOLLOW THAT MAXIM HERE AND PERMIT RESPONDENT TO
MAINTAIN THIS ACTION TO SEEK REDRESS FOR THE WRONGS ALLEGEDLY DONE TO
IT AND TO THE PUBLIC INTEREST IT SERVES, I RESPECTFULLY DISSENT. 

/1/  SEE GENERALLY 3 W. FLETCHER, CYCLOPEDIA CORPORATIONS 1012
(1965).  INDEED, THE FAILURE TO EXERCISE REASONABLE CARE TO SEEK
REDRESS FOR WRONGS DONE THE CORPORATION MIGHT WELL SUBJECT THE
DIRECTORS TO PERSONAL LIABILITY.  SEE, E, G., BRIGGS V. SPAULDING, 141
U.S. 132 (1891); KAVANAUGH V. COMMONWEALTH TRUST CO. OF NEW YORK, 223
N. Y. 103, 119 N. E. I37 (1918). 

/2/  "(STOCKHOLDERS' DERIVATIVE SUITS) ARE ONE OF THE REMEDIES WHICH
EQUITY DESIGNED FOR THOSE SITUATIONS WHERE THE MANAGEMENT THROUGH
FRAUD, NEGLECT OF DUTY OR OTHER CAUSE DECLINES TO TAKE THE PROPER AND
NECESSARY STEPS TO ASSERT THE RIGHTS WHICH THE CORPORATION HAS."  MEYER
V. FLEMING, 327 U.S. 161, 167 (1946).  AND IT IS IRRELEVANT THAT THE
SHAREHOLDERS BRINGING THE DERIVATIVE ACTION OWN ONLY A SMALL PERCENTAGE
OF THE TOTAL OUTSTANDING SHARES.  SEE ASHWANDER V. TVA, 297 U.S. 288,
318 (1936); SUBIN V. GOLDSMITH, 224 F.2D 753, 761 (CA2), CERT. DENIED,
350 U.S. 883 (1955). 

/3/  ACCORDING TO THE COMPLAINT, THERE WERE 20 INDIVIDUAL MINORITY
SHAREHOLDERS, MANY OF WHOM ACQUIRED THEIR SHARES IN THE 1950'S.  APP. 6
- 7, 22 - 23. 

/4/  IT IS INTERESTING TO NOTE THAT THE MAJORITY'S RESTRICTIVE
NOTIONS AS TO THE POWER OF A COURT OF EQUITY TO DIRECT THE APPLICATION
OF A RECOVERY ARE IN CONFLICT WITH THE MAJORITY'S OWN SUGGESTION FOR
PROTECTING THE INTERESTS OF INNOCENT MINORITY SHAREHOLDERS.  SEE ANTE,
AT 718 N.15.  IF A COURT OF EQUITY LACKS POWER TO DIRECT A CORPORATION
TO APPLY THE PROCEEDS OF A RECOVERY IN ANY PARTICULAR FASHION, HOW CAN
THE COURT DIRECT THE CORPORATION TO DISTRIBUTE A PRO-RATA RECOVERY TO
SOME, BUT NOT ALL, OF ITS SHAREHOLDERS? 

/5/  THE COMPLAINT ALLEGES THAT THE SPECIAL AND ILLEGAL DIVIDENDS
WHICH PETITIONERS CAUSED BAR TO DECLARE "SERVED TO DEPRIVE PLAINTIFF
BAR OF A SOURCE OF CASH WHICH COULD AND WOULD HAVE BEEN UTILIZED FOR
NECESSARY MAINTENANCE AND EQUIPMENT ACQUISITIONS AND REPLACEMENTS, ALL
TO THE INJURY OF BAR AND THE PUBLIC WHICH IT SERVES."  APP. 16. 

/6/ THESE ARGUMENTS ARE APPLICABLE AS WELL TO THE CAUSES OF ACTION
STATED UNDER THE MAINE PUBLIC UTILITIES ACT, MAINE REV. STAT. ANN.,
TIT. 35, 104 (1965), WHICH PROVIDES IN PERTINENT PART: 

"NO PUBLIC UTILITY DOING BUSINESS IN THIS STATE SHALL . . . MAKE ANY
CANTRACT OR ARRANGEMENT, PROVIDING FOR THE FURNISHING OF . . . SERVICES
. . . WITH ANY CORPORATION . . . OWNING IN EXCESS OF 25% OF THE VOTING
CAPITAL STOCK OF SUCH PUBLIC UTILITY . . . UNLESS AND SUCH CONTRACT OR
ARRANGEMENT SHALL HAVE BEEN FOUND BY THE COMMISSION NOT TO BE ADVERSE
TO THE PUBLIC INTEREST AND SHALL HAVE RECEIVED THEIR (SIC) WRITTEN
APPROVAL."  WHILE DIFFERENT FROM 10 OF THE CLAYTON ACT CERTAIN DETAILS
(APPLYING TO ALL PUBLIC UTILITIES RATHER THAN ONLY TO CARRIERS, AND
RELYING ON THE SUPERVISION OF AN ADMINISTRATIVE AGENCY RATHER THAN THE
DEVICE OF COMPETITIVE BIDDING), THE MAINE STATUTE CLEARLY HAS THE SAME
UNDERLYING PURPOSE: TO PROTECT THE PUBLIC INTEREST FROM ABUSES OF
PUBLIC UTITIES THROUGH INTERCORPORATE TRANSACTIONS WITH A MAJOR
SHAREHOLDER.  WHILE MAINE LAW GOVERNS THE CAUSES OF ACTION UNDER THIS
GENERAL EQUITABLE PRINCIPLE THAT A STOCKHOLDER HAS NO STANDING TO SUE
IF HE OR HIS VENDOR PARTICIPATED IN THE WRONG, SEE ANTE, AT 714, THERE
IS NO BASIS IN MAINE LAW FOR APPLYING THIS EQUITABLE DOCTRINE WHERE THE
DIRECT RESULT IS TO LEAVE REMEDILESS THE VERY ABUSES 104 WAS DESIGNED
TO PROHIBIT. 
..END :
















PARKER V. LEVY, 417 U.S. 733 


       PARKER, WARDEN, ET AL. V. LEVY

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
THIRD

    CIRCUIT

        NO. 73 - 206.  ARGUED FEBRUARY 20, 1974--DECIDED JUNE 19,

           1974; 478 F.2D 772, REVERSED. 


    ARTICLE 90 (2) OF THE UNIFORM CODE OF MILITARY JURTICE (CODE)

  PROVIDES FOR PUNISHMENT OF ANY PERSON SUBJECT TO THE CODE WHO

  "WILLFULLY DISOBEYS A LAWFUL COMMAND OF HIS SUPERIOR COMMISSIONED

  OFFICER"; ART. 133 PUNISHES A COMMISSIONED OFFICER FOR CONDUCT

  UNBECOMING AN OFFICER AND A GENTLEMAN"; AND ART. 134 (THE GENERAL

  ARTICLE) PUNISHES ANY PERSON SUBJECT TO THE CODE FOR, INTER ALIA,

  "ALL DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND

DISCIPLINE IN THE ARMED FORCES," THOUGH NOT SPECIFICALLY

MENTIONED IN THE CODE.  APPELLEE, AN ARMY PHYSICIAN ASSIGNED TO A

  HOSPITAL, WAS CONVICTED BY A GENERAL COURT-MARTIAL OF VIOLATING

  ART. 90 (2) FOR DISOBEYING THE HOSITAL COMMANDANT'S ORDER TO

  ESTABLISH A TRAINING PROGRAM FOR SPECIAL FORCES AIDE MEN, AND OF

  VIOLATING ARTS.  133 AND 134 FOR MAKING PUBLIC STATEMENTS URGING

  NEGRO ENLISTED MEN TO REFUSE TO OBEY ORDERS TO GO TO VIETNAM AND

  REFERRING TO SPECIAL FORCES PERSONNEL AS "LIARS AND THIEVES,"

  KILLERS OF PEASANTS," AND "MURDERERS OF WOMEN AND

  CHILDREN."  AFTER HIS CONVICTION WAS SUSTAINED WITHIN THE
MILITARY

AND HE EXHAUSTED THIS AVENUE OF RELIEF, APPELLEE SOUGHT HABEAS

  CORPUS RELIEF IN THE DISTRICT COURT, CHALLENGING HIS CONVICTION

  ON THE PROUND THAT BOTH ART. 133 AND ART. 134 ARE "VOID FOR

  VAGUENESS" UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT

  AND OVERBROAD IN VIOLATION OF THE FIRST AMENDMENT.  THE DISTRICT

  COURT DENIED RELIEF, BUT THE COURT OF APPEALS REVERSED, HOLDING

  THAT ARTS.  133 AND 134 ARE VOID FOR VAGUENESS, THAT WHILE

  APPELLEE'S CONDUCT FELL WITHIN AN EXAMPLE OF ART. 134 VIOLATIONS

  CONTAINED IN THE MANUAL FOR COURTS-MARTIAL, THE POSSIBILITY THAT

THE ARTICLES WOULD BE APPLIED TO OTHERS' FUTURE CONDUCT AS TO

  WHICH THERE WAS INSUFFICIENT WARNING, OR WHICH WAS WITHIN THE

  AREA OF PROTECTED FIRST AMENDMENT EXPRESSION, WAS ENOUGH TO GIVE

  APPELLEE STANDING TO CHALLENGE BOTH ARTICLES ON THEIR FACE, AND

  THAT THE JOINT CONSIDERATION OF THE ART. 90 CHARGES GIVES RISE TO

  A "REASONABLE POSSIBILITY" THAT APPELLEE'S RIGHT TO A FAIR TRIAL

  WAS PREJUDICED, SO THAT A NEW TRIAL WAS REQUIRED.  HELD: 

     1.  ARTICLES 133 AND 134 ARE NOT UNCONSTITUTIONALLY VAGUE
UNDER

THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  PP. 752 - 757. 

     (A) EACH ARTICLE HAS BEEN CONSTRUED BY THE UNITED STATES COURT

  OF MILITARY APPEALS OR BY OTHER MILITARY AUTHORITIES, SUCH AS THE

  MANUAL FOR COURTS-MARTIAL, SO AS TO LIMIT ITS SCOPE, THUS

  NARROWING THE VERY BROAD REACH OF THE LITERAL LANGUAGE OF THE

  ARTICLES, AND AT THE SAME TIME SUPPLYING CONSIDERABLE SPECIFICITY

  BY WAY OF EXAMPLES OF THE CONDUCT THAT THEY COVER.  PP. 752 -

  755. 

   (B) THE ARTICLES ARE NOT SUBJECT TO BEING CONDEMNED FOR

  SPECIFYING NO STANDARD OF CONDUCT AT ALL, BUT ARE OF THE TYPE OF

  STATUTES WHICH "BY THEIR TERMS OR AS AUTHORITATIVELY CONSTRUED

  APPLY WITHOUT QUESTION TO CERTAIN ACTIVITIES, BUT WHOSE

  APPLICATION TO OTHER BEHAVIOR IS UNCERTAIN," SMITH V. GOGUEN, 415

  U.S. 566, 578.  PP. 755 - 756. 

     (C) BECAUSE OF THE FACTORS DIFFERENTIATING MILITARY FROM

  CIVILIAN SOCIETY, CONGRESS IS PERMITTED TO LEGISLATE WITH GREATER

  BREADTH AND FLEXIBILITY WHEN PRESCRIBING RULES FOR THE FORMER

  THAN WHEN PRESCRIBING RULES FOR THE LATTER, AND THE PROPER

  STANDARD OF REVIEW FOR A VAGUENESS CHALLENGE TO CODE ARTICLES IS

  THE STANDARD THAT APPLIES TO CRIMINAL STATUTES REGULATING

  ECONOMIC AFFAIRS, AND THAT STANDARD WAS MET HERE, SINCE APPELLEE

  COULD HAVE HAD NO REASONABLE DOUBT THAT HIS STATEMENTS URGING

  NEGRO ENLISTED MEN NOT GO TO VIETNAM IF ORDERED TO DO SO WAS BOTH

 "UNBECOMING AN OFFICER AND GENTLEMAN" AND "TO THE PREJUDICE OF

  GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES," IN VIOLATION OF

  ARTS.  133 AND 134, RESPECTIVELY.  PP. 756 - 757. 

     2.  NOR ARE ARTS.  133 AND 134 FACIALLY INVALID BECAUSE OF
OVERBREADTH.  PP. 757 - 761. 

     (A) DOCTRINES OF FIRST AMENDMENT OVERBREADTH ASSERTED IN

  SUPPORT OF CHALLENGES TO IMPRECISE LANGUAGE LIKE THAT CONTAINED

  IN ARTS.  133 AND 134 ARE NOT EXEMPT FROM THE OPERATION OF THE

  PRINCIPLES THAT WHILE MILITARY PERSONNEL ARE NOT EXCLUDED FROM

  FIRST AMENDMENT PROTECTION, THE FUNDAMENTAL NECESSITY FOR

  OBEDIENCE, AND THE CONSEQUENT NECESSITY FOR DISCIPLINE, MAY

  RENDER PERMISSIBLE WITHIN THE MILITARY THAT WHICH WOULD BE

  CONSTITUTIONALLY IMPERMISSIBLE OUTSIDE IT.  PP. 758 - 759. 

     (B) THERE IS A WIDE RANGE OF CONDUCT TO WHICH ARTS.  133 AND

  134 MAY BE APPLIED WITHOUT INFRINGING THE FIRST AMENDMENT, AND

  WHILE THERE MAY BE MARGINAL APPLICATIONS IN WHICH FIRST AMENDMENT

  VALUES WOULD BE INFRINGED, THIS IS INSUFFICIENT TO INVALIDATE

  EITHER ARTICLE AT APPELLEE'S BEHEST.  HIS CONDUCT IN PUBLICLY

URGING ENLISTED PERSONNEL TO REFUSE TO OBEY ORDERS WHICH MIGHT

  SEND THEM INTO COMBAT WAS UNPROTECTED UNDER THE MOST EXPANSIVE

  NOTIONS OF THE FIRST AMENDMENT, AND ARTS. 133 AND 134 MAY

  CONSTITUTIONALLY PROHIBIT THAT CONDUCT, AND A SUFFICIENTLY LARGE

  NUMBER OF SIMILAR OR RELATED TYPES OF CONDUCT SO AS TO PRECLUDE

  THEIR INVALIDATION FOR OVERBREADTH.  PP. 760 - 761. 

     3.  APPELLEE'S CONTENTION THAT EVEN IF ARTS. 133 AND 134 ARE

  CONSTITUTIONAL, HIS CONVICTION UNDER ART. 90 SHOULD BE

  INVALIDATED BECAUSE TO CARRY OUT THE HISPITAL COMMANDANT'S ORDER

  WOULD HAVE CONSTITUTED PARTICIPATION IN A WAR CRIME AND BECAUSE

  THE COMMANDANT GAVE THE ORDER, KNOWING IT WOULD BE DISOBEYED, FOR

THE SOLE PURPOSE OF INCREASING APPELLEE'S PUNISHMENT, IS NOT OF

  CONSTITUTIONAL SIGNIFICANCE AND IS BEYOND THE SCOPE OF REVIEW,

  SINCE SUCH DEFENSES WERE RESOLVED AGINST APPELLEE ON A FACTUAL

  BASIS BY THE COURT-MARTIAL THAT CONVICTED HIM.  P. 761. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
CO. J., AND WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  BLACKMUN, J.,
FILED A CONCURRING STATEMENT, IN WHICH BURGER, C. J., JOINED, POST P.
762.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 766.  STEWART,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN, JJ.,
JOINED, POST, P. 773.  MARSHALL, J., TOOK NO PART IN THE CONSIDERATION
OR DECISION OF THE CASE. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

APPELLEE HOWARD LEVY, A PHYSICIAN, WAS A CAPTAIN IN THE ARMY
STATIONED AT FORT JACKSON, SOUTH CAROLINA.  HE HAD ENTERED THE ARMY
UNDER THE SO-CALLED "BERRY PLAN,"  /1/  UNDER WHICH HE AGREED TO SERVE
FOR TWO YEARS IN THE ARMED FORCES IF PERMITTED FIRST TO COMPLETE HIS
MEDICAL TRAINING.  FROM THE TIME HE ENTERED ON ACTIVE DUTY IN JULY 1965
UNTIL HIS TRIAL BY COURT-MARTIAL, HE WAS ASSIGNED AS CHIEF OF THE
DERMATOLOGICAL SERVICE OF THE UNITED STATES ARMY HOSPITAL AT FORT
JACKSON.  ON JUNE 2, 1967, APPELLEE WAS CONVICTED BY A GENERAL COURT
MARTIAL OF VIOLATIONS OF ARTS. 90, 133, AND 134 OF THE UNIFORM CODE OF
MILITARY JUSTICE, AND SENTENCED TO DISMISSAL FROM THE SERVICE,
FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT FOR THREE YEARS
AT HARD LABOR. 

THE FACTS UPON WHICH HIS CONVICTION RESTS ARE VIRTUALLY UNDISPUTED. 
THE EVIDENCE ADMITTED AT HIS COURT-MARTIAL TRIAL SHOWED THAT ONE OF THE
FUNCTIONS OF THE HOSPITAL TO WHICH APPELLEE WAS ASSIGNED WAS THAT OF
TRAINING SPECIAL FORCES AIDE MEN.  AS CHIEF OF THE DERMATOLOGICAL
SERVICE, APPELLEE WAS TO CONDUCT A CLINIC FOR THOSE AIDE MEN.  IN THE
LATE SUMMER OF 1966, IT CAME TO THE ATTENTION OF THE HOSPITAL COMMANDER
THAT THE DERMATOLOGY TRAINING OF THE STUDENTS WAS UNSATISFACTORY. 
AFTER INVESTIGATING THE PROGRAM AND DETERMINING THAT APPELLEE HAD
TOTALLY NEGLECTED HIS DUTIES, THE COMMANDER CALLED APPELLEE TO HIS
OFFICE AND PERSONALLY HANDED HIM A WRITTEN ORDER TO CONDUCT THE
TRAINING.  APPELLEE READ THE ORDER, SAID THAT HE UNDERSTOOD IT, BUT
DECLARED THAT HE WOULD NOT OBEY IT BECAUSE OF HIS MEDICAL ETHICS. 
APPELLEE PERSISTED IN HIS REFUSAL TO OBEY THE ORDER, AND LATER REVIEWS
OF THE PROGRAM ESTABLISHED THAT THE TRAINING WAS STILL NOT BEING
CARRIED OUT. 

DURING THE SAME PERIOD OF TIME, APPELLEE MADE SEVERAL PUBLIC
STATEMENTS TO ENLISTED PERSONNEL AT THE POST, OF WHICH THE FOLLOWING IS
REPRESENTATIVE: 

"THE UNITED STATES IS WRONG IN BEING INVOLVED IN THE VIET NAM WAR. 
I WOULD REFUSE TO GO TO VIET NAM IF ORDERED TO DO SO.  I DON'T SEE WHY
ANY COLORED SOLDIER WOULD GO TO VIET NAM: THEY SHOULD REFUSE TO GO TO
VIET ANM AND IF SENT SHOULD REFUSE TO FIGHT BECAUSE THEY ARE
DISCRIMINATED AGAINST AND DENIED THEIR FREEDOM IN THE UNITED STATES,
AND THEY ARE SACRIFICED AND DISCRIMINATED AGAINST IN VIET NAM BY BEING
GIVEN ALL THE HAZARDOUS DUTY AND THEY ARE SUFFERING THE MAJORITY OF
CASUALTIES.  IF I WERE A COLORED SOLDIER I WOULD REFUSE TO GO TO VIET
NAM AND IF I WERE A COLORED SOLDIER AND WERE SENT I WOULD REFUSE TO
FIGHT.  SPECIAL FORCES PERSONNEL ARE LIARS AND THIEVES AND KILLERS OF
PEASANTS AND MURDERERS OF WOMEN AND CHILDREN." 

APPELLEE'S MILITARY SUPERIORS ORIGINALLY CONTEMPLATED NONJUDICIAL
PROCEEDINGS AGAINST HIM UNDER ART. 15 OF THE UNIFORM CODE OF MILITARY
JUSTICE, 10 U.S.C. 815, BUT LATER DETERMINED THAT COURT-MARTIAL
PROCEEDINGS WERE APPROPRIATE.  THE SPECIFICATION UNDER ART. 90 ALLEGED
THAT APPELLEE WILLFULLY DISOBEYED THE HOSITAL COMMANDANT'S ORDER TO
ESTABLISH THE TRAINING PROGRAM, IN VIOLATION OF THAT ARTICLE, WHICH
PUNISHES ANYONE SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE WHO
"WILLFULLY DISOBEYS A LAWFUL COMMAND OF HIS SUPERIOR COMMISSIONED
OFFICER."  /2/  STATEMENTS TO ENLISTED PERSONNEL WERE LISTED AS
SPECIFICATIONS UNDER THE CHARGES OF VIOLATING ARTS.  133 AND 134 OF THE
CODE.  ARTICLE 133 PROVIDES FOR THE PUNISHMENT OF "CONDUCT UNBECOMING
AN OFFICER AND A GENTLEMAN,"  /3/  WHILE ART. 134 PROSCRIBES, INTER
ALIA, "ALL DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND
DISCIPLINE IN THE ARMED FORCES."  /4/ 

THE SPECIFICATION UNDER ART. 134 ALLEGED THAT APPELLEE "DID, AT FOR
JACKSON, SOUTH CAROLINA, . . . WITH DESIGN TO PROMOTE DISLOYALTY AND
DISAFFECTION AMONG THE TROOPS, PUBLICLY UTTER (CERTAIN) STATEMENTS TO
DIVERS ENLISTED PERSONNEL AT DIVERS TIMES . . . ."  /5/  THE
SPECIFICATION UNDER ART. 133 ALLEGED THAT APPELLEE DID "WHILE IN THE
PERFORMANCE OF HIS DUTIES AT THE UNITED STATES ARMY HOSPITAL . . .
WRONGFULLY AND DISHONORABLY" MAKE STATEMENTS VARIOUSLY DESCRIBED AS
INTEMPERATE, DEFAMATORY, PROVOKING, DISLOYAL, CONTEMPTUOUS, AND
DISRESPECTFUL TO SPECIAL FORCES PERSONNEL AND TO ENLISTED PERSONNEL WHO
WERE PATIENTS OR UNDER HIS SUPERVISION.  /6/ 

APPELLEE WAS CONVICTED BY THE COURT-MARTIAL, AND HIS CONVICTION WAS
SUSTAINED ON HIS APPEALS WITHIN THE MILITARY.  /7/  AFTER HE HAD
EXHAUSTED THIS AVENUE OF RELIEF, HE SOUGHT FEDERAL HABEAS CORPUS IN THE
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA,
CHALLENGING HIS COURT-MARTIAL CONVICTION ON A NUMBER OF GROUNDS.  THE
DISTRICT COURT, ON THE BASIS OF THE VOLUMINOUS RECORD OF THE MILITARY
PROCEEDINGS AND THE ARGUMENT OF COUNSEL, DENIED RELIEF.  IT HELD THAT
THE "VARIOUS ARTICLES OF THE UNIFORM CODE OF MILITYARY JUSTICE ARE NOT
UNCONSTITUTIONAL FOR VAGUENESS," CITING SEVERAL DECISIONS OF THE UNITED
STATES COURT OF MILITARY APPEALS.  /8/  THE COURT REJECTED THE BALANCE
OF APPELLEE'S CLAIMS WITHOUT ADDRESSING THEM INDIVIDUALLY, NOTING THAT
THE MILITARY TRIBUNALS HAD GIVEN FAIR CONSIDERATION TO THEM AND THAT
THE ROLE OF THE FEDERAL COURTS IN REVIEWING COURT-MARTIAL PROCEEDINGS
WAS A LIMITED ONE. 

THE COURT OF APPEALS REVERSED, HOLDING IN A LENGTHY OPINION THAT
ARTS. 133 AND 134 ARE VOID FOR VAGUENESS.  478 F.2D 772 (CA3 1973). 
THE COURT FOUND LITTLE DIFFICULTY IN CONCLUDING THAT "AS MEASURED BY
CONTEMPORARY STANDARDS OF VAGUENESS APPLICABLE TO STATUTES AND
ORDINANCES GOVERNING CIVILIANS," THE GENERAL ARTICLES "DO NOT PASS
CONSTITUTIONAL MUSTER."  IT RELIED ON SUCH CASES AS GRAYNED V. CITY OF
ROCKFORD, 408 U.S. 10J (1972); PAPACHRISTOU V. CITY OF JACKSONVILLE,
405 U.S. 156 (1972); GIACCIO V. PENNSYLVANIA, 382 U.S. 399 (1966);
COATES V. CITY OF CINCINNATI, 402 U.S. 611 (1971), AND GELLING V.
TEXAS, 343 U.S. 960 (1952).  THE COURT OF APPEALS DID NOT RULE THAT
APPELLE WAS PUNISHED FOR DOING THINGS HE COULD NOT REASONABLY HAVE
KNOWN CONSTITUTED CONDUCT PROSCRIBED BY ART. 133 OR 134.  INDEED, IT
RECOGNIZED THAT HIS CONDUCT FELL WITHIN ONE OF THE EXAMPLES OF ART.
134 VIOLATIONS CONTAINED IN THE MANUAL FOR COURTS-MARTIAL, PROMULGATED
BY THE PRESIDENT BY EXECUTIVE ORDER.  /9/  NONETHELESS, RELYING CHIEFLY
ON GOODING V. WILSON, 405 U.S. 518 (1972), THE COURT FOUND THE
POSSIBILITY THAT ARTS.  133 AND 134 WOULD BE APPLIED TO FUTURE CONDUCT
OF OTHERS AS TO WHICH THERE WAS INSUFFICIENT WARNING, OR WHICH WAS
WITHIN THE AREA OF PROTECTED FIRST AMENDMENT EXPRESSION, WAS ENOUGH TO
GIVE APPELLEE STANDING TO CHALLENGE BOTH ARTICLES ON THEIR FACE.  WHILE
IT ACKNOWLEDGED THAT DIFFERENT STANDARDS MIGHT IN SOME CIRCUMSTANCES BE
APPLICABLE IN CONSIDERING VAGUENESS CHALLENGES TO PROVISIONS WHICH
GOVERN THE CONDUCT OF MEMBERS OF THE ARMED FORCES, THE COURT SAW IN THE
CASE OF ARTS.  133 AND 134 NO "COUNTERVAILING MILITARY CONSIDERATIONS
WHICH JUSTIFY THE TWISTING OF ESTABLISHED STANDARDS OF DUE PROCESS IN
ORDER TO HOLD INVIOLATE THESE ARTICLES, SO CLEARLY REPUGNANT UNDER
CURRENT CONSTITUTIONAL VALUES."  TURNING FINALLY TO APPELLEE'S
CONVICTION UNDER ART. 90, THE COURT HELD THAT THE JOINT CONSIDERATION
OF ART. 90 CHARGES WITH THE CHARGES UNDER ARTS.  133 AND 134 GAVE RISE
TO A "REASONABLE POSSIBILITY" THAT APPELLEE'S RIGHT TO A FAIR TRIAL WAS
PREJUDICED, SO THAT A NEW TRIAL WAS REQUIRED. 

APPELLANTS APPEALED TO THIS COURT PURSUANT TO 28 U.S.C. 1252.  WE
SET THE CASE FOR ORAL ARGUMENT, AND POSTPONED CONSIDERATION OF THE
QUESTION OF OUR JURISDICTION TO THE HEARING ON THE MERITS.  414 U.S.
973 (1973).  /10/

        I 

THIS COURT HAS LONG RECOGNIZED THAT THE MILITARY IS, BY NECESSITY, A
SPECIALIZED SOCIETY SEPARATE FROM CIVILIAN SOCIETY.  WE HAVE ALSO
RECOGNIZED THAT THE MILITARY HAS AGAIN BY NECESSITY, DEVELOPED LAWS AND
TRADITIONS OF ITS OWN DURING ITS LONG HISTORY.  THE DIFFERENCES BETWEEN
THE MILITARY AND CIVILIAN COMMUNITIES RESULT FORM THE FACT THAT "IT IS
THE PRIMARY BUSINESS OF ARMIES AND NAVIES TO FIGHT OR BE READY TO FIGHT
WARS SHOULD THE OCCASION ARISE."  UNITED STATES EX REL. TOTH V.
QUARLES, 350 U.S. 11, 17 (1955).  IN IN RE GRIMLEY, 137 U.S. 147, 153
(1890), THE COURT OBSERVED:  "AN ARMY IS NOT A DELIBERATIVE BODY.  IT
IS THE EXECUTIVE ARM.  ITS LAW IS THAT OF OBEDIENCE.  NO QUESTION CAN
BE LEFT OPEN AS TO THE RIGHT TO COMMAND IN THE OFFICER, OR THE DUTY OF
OBEDIENCE IN THE SOLDIER."  MORE RECENTLY WE NOTED THAT "(THE MILITARY
CONSTITUTES A SPECIALIZED COMMUNITY GOVERNED BY A SEPARATE DISCIPLINE
FROM THAT OF THE CIVILIAN," ORLOFF V. WILLOUGHBY, 345 U.S. 83, 94
(1953), AND THAT "THE RIGHTS OF MEN IN THE ARMED FORCES MUST PERFORCE
BE CONDITIONED TO MEET CERTAIN OVERRIDING DEMANDS OF DISCIPLINE AND
DUTY.  . ."  BURNS V. WILSON, 346 U.S. 137,140 (1953) (PLURALITY
OPINION).  WE HAVE ALSO RECOGNIZED THAT A MILITARY OFFICER HOLDS A
PARTICULAR POSITION OF RESPONSIBILITY AND COMMAND IN THE ARMED FORCES: 

    "THE PRESIDENT'S COMMISSION . . . 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."  ORLOFF V. WILLOUGHBY,

  SUPRA, AT 91. 

JUST AS MILITARY SOCIETY HAS BEEN A SOCIETY APART FROM CIVILIAN
SOCIETY, SO "(MILITARY LAW . . . IS A JURISPRUDENCE WHICH EXISTS
SEPARATE AND APART FORM THE LAW WHICH GOVERNS IN OUR FEDERAL JUDICIAL
ESTABLISHMENT."  BURNS V. WILSON, SUPRA, AT 140.  AND TO MAINTAIN THE
DISCIPLINE ESSENTIAL TO PERFORM ITS MISSION EFFECTIVELY, THE MILITARY
HAS DEVELOPED WHAT "MAY NOT UNFITLY BE CALLED THE CUSTOMARY MILITARY
LAW" OR "GENERAL USAGE OF THE MILITARY SERVICE."  MARTIN V. NOTT, 12
WHEAT.  19, 35 (1827).  AS THE OPINION IN MARTIN V. MOTT DEMONSTRATES,
THE COURT HAS APPROVED THE ENFORCEMENT OF THOSE MILITARY CUSTOMS AND
USAGES BY COURTS-MARTIAL FROM THE EARLY DAYS OF THIS NATION: 

".  . . COURTS MARTIAL, WHEN DULY ORGANIZED, ARE BOUND TO EXECUTE
THEIR DUTIES, AND REGULATE THEIR MODES OF PROCEEDING, IN THE ABSENCE OF
POSITIVE ENACTMENTS.  UPON ANY OTHER PRINCIPLE, COURTS MARTIAL WOULD BE
LEFT WITHOUT ANY ADEQUATE MEANS TO EXERCISE THE AUTHORITY CONFIDED TO
THEM: FOR THERE COULD SCARCELY BE FRAMED A POSITIVE CODE TO PROVIDE FOR
THE INFINITE VARIETY OF INCIDENTS APPLICABLE TO THEM."  ID., AT 35 -
36. 

AN EXAMINATION OF THE BRITISH ANTECEDENTS OF OUR MILITARY LAW SHOWS
THAT THE MILITARY LAW OF BRITAIN HAD LONG CONTAINED THE FOREBEARS OF
ARTS. 133 AND 134 IN REMARKABLY SIMILAR LANGUAGE.  THE ARTICLES OF THE
EARL OF ESSEX (1642) PROVIDED THAT "(ALL OTHER FAULTS, DISORDERS AND
OFFENSES, NOT MENTIONED IN THESE ARTICLES, SHALL BE PUNISHED ACCORDING
TO THE GENERAL CUSTOMS AND LAWS OF WAR."  ONE OF THE BRITISH ARTICLES
OF WAR OF 1765 MADE PUNISHABLE "ALL DISORDERS OR NEGLECTS . . . TO THE
PREJUDICE OF GOOD ORDER AND MILITARY DISCIPLINE . . ."  THAT WERE NOT
MENTIONED IN THE OTHER ARTICLES.  /11/  ANOTHER OF THOSE ARTICLES
PROVIDED: 

     "WHATSOEVER COMMISSIONED OFFICER SHALL BE CONVICTED BEFORE A

  GENERAL COURT-MARTIAL, OF BEHAVING IN A SCANDALOUS INFAMOUS

  MANNER, SUCH AS IS UNBECOMING THE CHARACTER OF AN OFFICER AND A

GENTLEMAN, SHALL BE DISCHARGED FROM OUR SERVICE."  /12/ 

IN 1775 THE CONTINENTAL CONGRESS ADOPTED THIS LAST ARTICLE, ALONG
WITH 68 OTHERS FOR THE GOVERNANCE OF ITS ARMY.  /13/  THE FOLLOWING
YEAR IT WAS RESOLVED BY THE CONGRESS THAT "THE COMMITTEE ON SPIES BE
DIRECTED TO REVISE THE RULES AND ARTICLES OF WAR; THIS BEING A
COMMITTEE OF FIVE, CONSISTING OF JOHN ADAMS, THOMAS JEFFERSON, JOHN
RUTLEDGE, JAMES WILSON AND R. R. LIVINGSTON . . . ."  /14/  THE ARTICLE
WAS INCLUDED IN THE NEW SET OF ARTICLES PREPARED BY THE COMMITTEE,
WHICH CONGRESS ADOPTED ON SEPTEMBER 20, 1776.  /15/  AFTER BEING ONCE
MORE RE-ENACTED WITHOUT CHANGE IN TEXT IN 1786, IT WAS REVISED AND
EXPANDED IN 1806, OMITTING THE TERMS "SCANDALOUS" AND "INFAMOUS," SO AS
TO READ: 

"ANY COMMISSIONED OFFICER CONVICTED BEFORE A GENERAL COURT-MARTIAL OF
CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN, SHALL BE DISMISSED
(FROM) THE SERVICE."  /16/ FROM 1806, IT REMAINED BASICALLY UNCHANGED
THROUGH NUMEROUS CONGRESSIONAL RE-ENACTMENTS UNTIL IT WAS ENACTED AS
ART. 133 OF THE UNIFORM CODE OF MILITARY JUSTICE IN 1951. 

THE BRITISH ARTICLE PUNISHING "ALL DISORDERS AND NEGLECTS . . ." 
WAS ALSO ADOPTED BY THE CONTINENTAL CONGRESS IN 1775 AND RE-ENACTED IN
1776.  /17/  EXCEPT FOR A REVISION IN 1916, WHICH ADDED THE CLAUSE
PUNISHING "ALL CONDUCT OF A NATURE TO BEING DISCREDIT UPON THE MILITARY
SERVICE,"  /18/  SUBSTANTIALLY THE SAME LANGUAGE WAS PRESERVED
THROUGHOUT THE VARIOUS RE-ENACTMENTS OF THIS ARTICLE TOO, UNTIL IN 1951
IT WAS ENACTED AS ART. 134 OF THE UNIFORM CODE OF MILITARY JUSTICE. 

DECISIONS OF THIS COURT DURING THE LAST CENTURY HAVE RECOGNIZED THAT
THE LONGSTANDING CUSTOMS AND USAGES OF THE SERVICES IMPART ACCEPTED
MEANING TO THE SEEMINGLY IMPRECISE STANDARDS OF ARTS OF ARTS.  133 AND
134.  IN DYNES V. HOOVER, 20 HOW.  65 (1857), THIS COURT UPHELD THE
NAVY'S GENERAL ARTICLE, WHICH PROVIDED THAT "(ALL CRIMES COMMITTED BY
PERSONS BELONGING TO THE NAVY, WHICH ARE NOT SPECIFIED IN THE FOREGOING
ARTICLES, SHALL BE PUNISHED ACCORDING TO THE LAWS AND CUSTOMS IN SUCH
CASES AT SEA."  THE COURT REASONED:     "(WHEN OFFENCES AND CRIMES ARE
NOT GIVEN IN TERMS OR BY DEFINITION, THE WANT OF IT MAY BE SUPPLIED BY
A COMPREHENSIVE ENACTMENT, SUCH AS THE 32D ARTICLE OF THE RULES FOR THE
GOVERNMENT OF THE NAVY, WHICH MEANS THAT COURTS MARTIAL HAVE
JURISDICTION OF SUCH CRIMES AS ARE NOT SPECIFIED, BUT WHICH HAVE BEEN
RECOGNISED TO BE CRIMES AND OFFENCES BY THE USAGES IN THE NAVY OF ALL
NATIONS, AND THAT THEY SHALL BE PUNISHED ACCORDING TO THE LAWS AND
CUSTOMS OF THE SEA.  NOTWITHSTANDING THE APPARENT INDETERMINATENESS OF
SUCH A PROVISION, IT IS NOT LIABLE TO ABUSE; FOR WHAT THOSE CRIMES ARE,
AND HOW THEY ARE TO BE PUNISHED, IS WELL KNOWN BY PRACTICAL MEN IN THE
NAVY AND ARMY, AND BY THOSE WHO HAVE STUDIED THE LAW OF COURTS MARTIAL,
AND THE OFFENCES OF WHICH THE DIFFERENT COURTS MARTIAL HAVE
COGNIZANCE."  ID., AT 82.  IN SMITH V. WHITNEY, 116 U.S. 167 (1886),
THIS COURT REFUSED TO ISSUE A WRIT OF PROHIBITION AGAINST SMITH'S COURT
MARTIAL TRIAL ON CHARGES OF "(SCANDALOUS CONDUCT TENDING TO THE
DESTRUCTION OF GOOD MORALS" AND "(CULPABLE INEFFICIENCY IN THE
PERFORMANCE OF DUTY."  THE COURT AGAIN RECOGNIZED THE ROLE OF "THE
USAGES AND CUSTOMS OF WAR" AND "OLD PRACTICE IN THE ARMY" IN THE
INTERPRETATION OF MILITARY LAW BY MILITARY TRIBUNALS.  ID., AT 178 -
179. 

IN UNITED STATES V. FLETCHER, 148 U.S. 84 (1893), THE COURT
CONSIDERED A COURT-MARTIAL CONVICTION UNDER WHAT IS NOW ART. 133,
REJECTING CAPTAIN FLETCHER'S CLAIM THAT THE COURT-MARTIAL COULD NOT
PROPERLY HAVE HELD THAT HIS REFUSAL TO PAY A JUST DEBT WAS "CONDUCT
UNBECOMING AN OFFICER AND A GENTLEMAN."  THE COURT OF CLAIMS DECISION
WHICH THE COURT AFFIRMED IN FLETCHER STRESSED THE MILITARY'S "HIGHER
CODE TERMED HONOR, WHICH HOLDS ITS SOCIETY TO STRICTER ACCOUNTABILITY"
/19/  AND WITH WHICH THOSE TRAINED ONLY IN CIVILIAN LAW ARE UNFAILIAR. 
IN SWAIM V. UNITED STATES, 165 U.S. 553 (1897), THE COURT AFFIRMED
ANOTHER COURT OF CLAIMS DECISION, THIS TIME REFUSING TO DISTURB A COURT
MARTIAL CONVICTION FOR CONDUCT "TO THE PREJUDICE OF GOOD ORDER AND
MILITARY DISCIPLINE" IN VIOLATION OF THE ARTICLES OF WAR.  THE COURT
RECOGNIZED THE ROLE OF "UNWRITTEN LAW OR USAGE" IN GIVING MEANING TO
THE LANGUAGE OF WHAT IS NOW ART. 134.  IN REJECTING SWAIM'S ARGUMENT
THAT EVIDENCE FAILED TO ESTABLISH AN OFFENSE UNDER THE ARTICLE, THE
COURT SAID: 

"(THIS IS THE VERY MATTER THAT FALLS WITHIN THE PROVINCE OF COURTS
MARTIAL, AND IN RESPECT TO WHICH THEIR CONCLUSIONS CANNOT BE CONTROLLED
OR REVIEWED BY THE CIVIL COURTS.  AS WAS SAID IN SMITH V. WHITNEY, 116
U.S. 178, 'OF QUESTIONS NOT DEPENDING UPON THE CONSTRUCTION OF THE
STATUTES, BUT UPON UNWRITTEN MILITARY LAW OR USAGE, WITHIN THE
JURISDICTION OF COURTS-MARTIAL, MILITARY OR NAVAL OFFICERS, FROM THEIR
TRAINING AND EXPERIENCE IN THE SERVICE, ARE MORE COMPETENT JUDGES THAN
THE COURTS OF COMMON LAW.'"  165 U.S., AT 562.  THE COURT OF CLAIMS HAD
OBSERVED THAT CASES INVOLVING "CONDUCT TO THE PREJUDICE OF GOOD ORDER
AND MILITARY DICIPLINE," AS OPPOSED TO CONDUCT UNBECOMING AN OFFICER,
"ARE STILL FURTHER BEYOND THE BOUNDS OF ORDINARY JUDICIAL JUDGMENT, FOR
THEY ARE NOT MEASURABLE BY OUR INNATE SENSE OF RIGHT AND WRONG, OF
HONOR AND DISHONOR, BUT MUST BE GAUGED BY AN ACTUAL KNOWLEDGE AND
EXPERIENCE OF MILITARY LIFE, ITS USAGES AND DUTIES."  /20/

     II 

THE DIFFERENCES NOTED BY THIS SETTLED LINE OF AUTHORITY, FIRST
BETWEEN THE MILITARY COMMUNITY AND THE CIVILIAN COMMUNITY, AND SECOND
BETWEEN MILITARY LAW AND CIVILIAN LAW, CONTINUE IN THE PRESENT DAY
UNDER THE UNIFORM CODE OF MILITARY JUSTICE.  THAT CODE CANNOT BE
EQUATED TO A CIVILIAN CRIMINAL CODE.  IT, AND THE VARIOUS VERSIONS OF
THE ARTICLES OF WAR WHICH HAVE PRECEDED IT, REGULATE ASPECTS OF THE
CONDUCT OF MEMBERS OF THE MILITARY WHICH IN THE CIVILIAN SPHERE ARE
LEFT UNREGULATED.  WHILE A CIVILIAN CRIMINAL CODE CARVES OUT A
RELATIVELY SMALL SEGMENT OF POTENTIAL CONDUCT AND DECLARES IT CRIMINAL,
THE UNIFORM CODE OF MILITARY JUSTICE ESSAYS MORE VARIED REGULATION OF A
MUCH LARGER SEGMENT OF THE ACTIVITIES OF THE MORE TIGHTLY KNIT MILITARY
COMMUNITY.  IN CIVILIAN LIFE THERE IS NO LEGAL SANCTION--CIVIL OR
CRIMINAL--FOR FAILURE TO BEHAVE AS AN OFFICER AND A GENTLEMAN; IN THE
MILITARY WORLD, ART. 133 IMPOSES SUCH A SANCTION ON A COMMISSIONED
OFFICER.  THE CODE LIKEWISE IMPOSES OTHER SANCTIONS FOR CONDUCT THAT IN
CIVILIAN LIFE IS NOT SUBJECT TO CRIMINAL PENALTIES: DISRESPECT TOWARD
SUPERIOR COMMISSIONED OFFICERS, ART. 89, 10 U.S.C. 889; CRUELTY TOWARD,
OR OPPRESSION OR MALTREATMENT OF SUBORDINATES, ART. 93, 10 U.S.C. 893;
NEGLIGENT DAMAGING, DESTRUCTION, OR WRONGFUL DISPOSITION OF MILITARY
PROPERTY OF THE UNITED STATES, ART. 108, 10 U.S.C. 908; IMPROPER
HAZARDING OF A VESSEL, ART. 110, 10 U.S.C. 910; DRUNKENNESS ON DUTY,
ART. 112, 10 U.S.C. 912; AND MALINGERING, ART. 115, 10 U.S.C. 915. 

BUT THE OTHER SIDE OF THE COIN IS THAT THE PENALTIES PROVIDED IN THE
CODE VARY FROM DEATH AND SUBSTANTIAL PENAL CONFINEMENT AT ONE EXTREME
TO FORMS OF ADMINISTRATIVE DISCIPLINE WHICH ARE BELOW THE THRESHOLD OF
WHAT WOULD NORMALLY BE CONSIDERED A CRIMINAL SANCTION AT THE OTHER. 
THOUGH ALL OF THE OFFENSES DESCRIBED IN THE CODE ARE PUNISHABLE "AS A
COURT-MARTIAL MAY DIRECT," AND THE ACCUSED MAY DEMAND A TRIAL BY COURT
MARTIAL, /21/  ART. 15 OF THE CODE ALSO PROVIDES FOR THE IMPOSITION OF
NONJUDICIAL "DISCIPLINARY PUNISHMENTS"  FOR MINOR OFFENSES WITHOUT THE
INTERVENTION OF A COURT-MARTIAL.  10 U.S.C. 815.  THE PUNISHMENTS
IMPOSABLE UNDER THAT ARTICLE ARE OF A LIMITED NATURE.  WITH RESPECT TO
OFFICERS, PUNISHMENT MAY ENCOMPASS SUSPENSION OF DUTY, ARREST IN
QUARTERS FOR NOT MORE THAN 30 DAYS RESTRICTION FOR NOT MORE THAN 60
DAYS, AND FORFEITURE OF PAY FOR A LIMITED PERIOD OF TIME.  IN THE CASE
OF ENLISTED MEN, SUCH PUNISHMENT MAY ADDITIONALLY INCLUDE, AMONG OTHER
THINGS, REDUCTION TO THE NEXT INFERIOR PAY GRADE, EXTRA FATIGUE DUTY,
AND CORRECTIONAL CUSTODY FOR NOT MORE THAN SEVEN CONSECUTIVE DAYS. 
THUS WHILE LEGAL PROCEEDINGS ACTUALLY BROUGHT BEFORE A COURT-MARTIAL
ARE PROSECUTED IN THE NAME OF THE GOVERNMENT, AND THE ACCUSED HAS THE
RIGHT TO DEMAND THAT HE BE PROCEEDED AGAINST IN THIS MANNER BEFORE ANY
SANCTIONS MAY BE IMPOSED UPON HIM, A RANGE OF MINOR SANCTIONS FOR
LESSER INFRACTIONS ARE OFTEN IMPOSED AMINISTRATIVELY.  FORFEITURE OF
PAY, REDUCTION IN RANK, AND EVEN DISMISSAL FROM THE SERVICE BRING TO
MIND THE LAW OF LABOR-MANAGEMENT RELATIONS AS MUCH AS THE CIVILIAN
CRIMINAL LAW. 

IN SHORT, THE UNIFORM CODE OF MILITARY JUSTICE REGULATES A FAR
BROADER RANGE OF THE CONDUCT OF MILITARY PERSONNEL THAN A TYPICAL STATE
CRIMINAL CODE REGULATES OF THE CONDUCT OF CIVILIANS; BUT AT THE SAME
TIME THE EFORCEMENT OF THAT CODE IN THE AREA OF MINOR OFFENSES IS OFTEN
BY SANCTIONS WHICH ARE MORE AKIN TO ADMINISTRATIVE OR CIVIL SANCTIONS
THAN TO CIVILIAN CRIMINAL ONES. 

THE AVAILABILITY OF THESE LESSER SANCTIONS IS NOT SURPRISING IN VIEW
OF THE DIFFERENT RELATIONSHIP OF THE GOVERNMENT TO MEMBERS OF THE
MILITARY.  IT IS NOT ONLY THAT OF LAWGIVER TO CITIZEN, BUT ALSO THAT OF
EMPLOYER TO EMPLOYEE.  INDEED, UNLIKE THE CIVILIAN SITUATION, THE
GOVERNMENT IS OFTEN EMPLOYER, LANDLORD, PROVISIONER, AND LAWGIVER
ROLLED INTO ONE.  THAT RELATIONSHIP ALSO REFLECTS THE DIFFERENT
PURPOSES OF THE TWO COMMUNITIES.  AS WE OBSERVED IN IN RE GRIMLEY, 137
U.S., AT 153, THE MILITARY "IS THE EXECUTIVE ARM" WHOSE "LAW IS THAT OF
OBEDIENCE."  WHILE MEMBERS OF THE MILITARY COMMUNITY ENJOY MANY OF THE
SAME RIGHTS AND BEAR MANY OF THE SAME BURDENS AS DO MEMBERS OF THE
CIVILIAN COMMUNITY, WITHIN THE MILITARY COMMUNITY THERE IS SIMPLY NOT
THE SAME AUTHONOMY AS THERE IS IN THE LARGER CIVILIAN COMMUNITY.  THE
MILITARY ESTABLISHMENT IS SUBJECT TO THE CONTROL OF THE CIVILIAN
COMMANDER IN CHIEF AND THE CIVILIAN DEPARTMENTAL HEADS UNDER HIM, AND
ITS FUNCTION IS TO CARRY OUT THE POLICIES MADE BY THOSE CIVILIAN
SUPERIORS. 

PERHAPS BECAUSE OF THE BROADER SWEEP OF THE UNIFORM CODE, THE
MILITARY MAKES AN EFFORT TO ADVISE ITS PERSONNEL OF THE CONTENTS OF THE
UNIFORM CODE, RATHER THAN DEPENDING ON THE ANCIENT DOCTRINE THAT
EVERYONE IS PRESUMED TO KNOW THE LAW.  ARTICLE 137 OF THE UNIFORM CODE,
10 U.S.C. 937, REQUIRES THAT THE PROVISIONS OF THE CODE BE "CAREFULLY
EXPLAINED TO EACH ENLISTED MEMBER AT THE TIME OF HIS ENTRANCE ON ACTIVE
DUTY, OR WITHIN SIX DAYS THEREAFTER" AND THAT THEY BE "EXPLAINED AGAIN
AFTER HE HAS COMPLETED SIX MONTHS OF ACTIVE DUTY . . . ."  THUS THE
NUMERICALLY LARGEST COMPONENT OF THE SERVICES, THE ENLISTED PERSONNEL,
WHO MIGHT BE EXPECTED TO BE A GOOD DEAL LESS FAMILIAR WITH THE UNIFORM
CODE THAN COMMISSIONED OFFICERS, ARE REQUIRED BY ITS TERMS TO RECEIVE
INSTRUCTIONS IN ITS PROVISIONS.  ARTICLE 137 FURTHER PROVIDES THAT A
COMPLETE TEXT OF THE CODE AND OF THE REGULATIONS PRESCRIBED BY THE
PRESIDENT "SHALL BE MADE AVAILABLE TO ANY PERSON ON ACTIVE DUTY, UPON
HIS REQUEST, FOR HIS PERSONAL EXAMINATION." 

WITH THESE VERY SIGNIFICANT DIFFERENCES BEWEEN MILITARY LAW AND
CIVILIAN LAW AND BETWEEN THE MILITARY COMMUNITY AND THE CIVILIAN
COMMUNITY IN MIND, WE TURN TO APPELLEE'S CHALLENGES TO THE
CONSTITUTIONALITY OF ARTS.  133 AND 134. 

        III 

APPELLEE URGES THAT BOTH ART. 133 AND ART. 134 (THE GENERAL ARTICLE)
ARE "VOID FOR VAGUENESS" UNDER THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT AND OVERBROAD IN VIOLATION OF THE FIRST AMENDMENT.  WE HAVE
RECENTLY SAID OF THE VAGUENESS DOCTRINE: 

"THE DOCTRINE INCORPORATES NOTIONS OF FAIR NOTICE OR WARNING. 
MOREOVER, IT REQUIRES LEGISLATURES TO SET REASONABLY CLEAR GUIDELINES
FOR LAW ENFORCEMENT OFFICIALS AND TRIERS OF FACT IN ORDER TO PREVENT
'ARBITRARY AND DISCRIMINATORY ENFORCEMENT.'  WHERE A STATUTE'S LITERAL
SCOPE, UNAIDED BY A NARROWING STATE COURT INTERPRETATION, IS CAPABLE OF
REACHING EXPRESSION SHELTERED BY THE FIRST AMENDMENT, THE DOCTRINE
DEMANDS A GREATER DEGREE OF SPECIFICITY THAN IN OTHER CONTEXTS."  SMITH
V. GOGUEN, 415 U.S. 566, 572 - 573 (1974).  EACH OF THESE ARTICLES HAS
BEEN CONSTRUED BY THE UNITED STATES COURT OF MILITARY APPEALS OR BY
OTHER MILITARY AUTHORITIES IN SUCH A MANNER AS TO AT LEAST PARTIALLY
NARROW ITS OTHERWISE BROAD SCOPE. 

THE UNITED STATES COURT OF MILITARY APPEALS HAS STATED THAT ART. 134
MUST BE JUDGED "NOT IN VACUO, BUT IN THE CONTEXT IN WHICH THE YEARS
HAVE PLACED IT,"  UNITED STATES V. FRANTZ, 2 U.S.C. M. A. 161, 163, 7
C. M. R. 37, 39 (1953).  ARTICLE 134 DOES NOT MAKE "EVERY IRREGULAR,
MISCHIEVOUS, OR IMPROPER ACT A COURT-MARIAL OFFENSE," UNITED STATES V.
SADINSKY, 14 U.S.C. M. A 563, 565, 34 C.M. R. 343, 345 (1964), BUT ITS
REACH IS LIMITED TO CONDUCT THAT IS "DIRECTLY AND PALPABLY--AS
DISTINGUISHED FORM INDIRECTLY AND REMOTELY--PREJUDICIAL TO GOOD ORDER
AND DISCIPLINE.'"  IBID.; UNITED STATES V. HOLIDAY, 4 U.S.C.M. A. 454,
456, 16 C. M. R. 28, 30 (1954).  IT APPLIES ONLY TO CALLS FOR ACTIVE
OPPOSITION TO THE MILITARY POLICY OF THE UNITED STATES, UNITED STATES
V. PRIEST, 21 U.S.C. M. A. 564, 45 C. M. R. 338 (1972), AND DOES NOT
REACH ALL "(DISAGREEMENT WITH, OR OBJECTION TO, A POLICY OF THE
GOVERNMENT."  UNITED STATES V. HARVEY, 19 U.S.C. M. A. 539, 544, 42 C
M. R. 141, 146 (1971). 

THE MANUAL FOR COURTS-MARTIAL RESTATES THESE LIMITATIONS ON THE
SCOPE OF ART. 134 /22/  IT GOES ON TO SAY THAT "(CERTAIN DISLOYAL
STATEMENTS BY MILITARY PERSONNEL" MAY BE PUNISHABLE UNDER ART.  134. 
"EXAMPLES ARE UTTERANCES DESIGNED TO PROMOTE DISLOYALTY OR DISAFFECTION
AMONG TROOPS, AS PRAISING THE ENEMY, ATTACKING THE WAR AIMS OF THE
UNITED STATES, OR DENOUNCING OUR FORM OF GOVERNMENT."  /23/  EXTENSIVE
ADDITIONAL INTERPRETATIVE MATERIALS ARE CONTAINED IN THE PORTIONS OF
THE MANUAL DEVOTED TO ART. 134, WHICH DESCRIBE MORE THAN SIXTY
ILLUSTRATIVE OFFENSES. 

THE COURT OF MILITARY APPEALS HAS LIKEWISE LIMITED THE SCOPE OF
ART.133.  QUOTING FROM W. WINTHROP, MILITARY LAW AND PRECEDENTS 711 -
712 (2D ED. 1920), THAT COURT HAS STATED: 

     "'". . . TO CONSTITUTE THEREFORE THE CONDUCT HERE DENOUNCED,

 THE ACT WHICH FORMS THE BASIS OF THE CHARGE MUST HAVE A DOUBLE

  SIGNIFICANCE AND EFFECT.  THOUGH IT NEED NOT AMOUNT TO A CRIME,

  IT MUST OFFEND SO SERIOUSLY AGAINST LAW, JUSTICE, MORALITY OR

  DECORUM AS TO EXPOSE TO DISGRACE, SOCIALLY OR AS A MAN, THE

  OFFENDER, AND AT THE SAME TIME MUST BE OF SUCH A NATURE OR

  COMMITTED UNDER SUCH CIRCUMSTANCES AS TO BEING DISHONOR OR

  DISREPUTE UPON THE MILITARY PROFESSION WHICH HE REPRESENTS."'" 

  UNITED STATES V. HOWE, 17 U.S.C.M.A. 165, 177 - 178, 37 C. M. R.

  429, 441 - 442 (1967). 

THE EFFECT OF THESE CONSTRUCTIONS OF ARTS.  133 AND 134 BY THE COURT
OF MILITARY APPEALS AND BY OTHER MILITARY AUTHORITIES HAS BEEN TWOFOLD:
IT HAS NARROWED THE VERY BROAD REACH OF THE LITERAL LANGUAGE OF THE
ARTICLES, AND AT THE SAME TIME HAS SUPPLIED CONSIDERABLE SPECIFICITY BY
WAY OF EXAMPLES OF THE CONDUCT WHICH THEY COVER.  IT WOULD BE IDLE TO
PRETEND THAT THERE ARE NOT AREAS WITHIN THE GENERAL CONFINES OF THE
ARTICLES' LANGUAGE WHICH HAVE BEEN LEFT VAGUE DESPITE THESE NARROWING
CONSTRUCTIONS.  BUT EVEN THOUGH SIZABLE AREAS OF UNCERTAINTY AS TO THE
COVERAGE OF THE ARTICLES MAY REMAIN AFTER THEIR OFFICIAL INTERPRETATION
BY AUTHORITATIVE MILITARY SOURCES, FURTHER CONTENT MAY BE SUPPLIED EVEN
IN THESE AREAS BY LESS FOR MALIZED CUSTOM AND USAGE.  DYNES V. HOOVER,
20 HOW.  65 (1857).  AND THERE ALSO CANNOT BE THE SLIGHTEST DOUBT UNDER
THE MILITARY PRECEDENTS THAT THERE IS A SUBSTANTIAL RANGE OF CONDUCT TO
WHICH BOTH ARTICLES CLEARLY APPLY WITHOUT VAGUENESS OR IMPRECISION.  IT
IS WITHIN THAT RANGE THAT APPELLEE'S CONDUCT SQUARELY FALLS, AS THE
COURT OF APPEALS RECOGNIZED: 

"NEITHER ARE WE UNMINDFUL THAT THE MANUAL FOR COURTS-MARTIAL OFFERS
AS AN EXAMPLE OF AN OFFENSE UNDER ARTICLE 134, 'PRAISING THE ENEMY,
ATTACKING WAR AIMS OF THE UNITED STATES, OR DENOUNCING OUR FORM OF
GOVERNMENT.'  WITH THE POSSIBLE EXCEPTION OF THE STATEMENT THAT
'SPECIAL FORCES PERSONNEL ARE LIARS AND THIEVES AND KILLERS OF PEASANTS
AND MURDERERS OF WOMEN AND CHILDREN,' IT WOULD APPEAR THAT EACH
STATEMENT FOR WHICH (LEVY) WAS COURT-MARTIALED COULD FALL WITHIN THE
EXAMPLE GIVEN IN THE MANUAL.'  478 F. 2D, AT 794.     THE COURT OF
APPEALS WENT ON TO HOLD, HOWEVER, THAT EVEN THOUGH LEVY'S OWN CONDUCT
WAS CLEARLY PROHIBITED, THE VOID-FOR-VAGUENESS DOCTRINE CONFERRED
STANDING UPON HIM TO CHALLENGE THE IMPRECISION OF THE LANGUAGE OF THE
ARTICLES AS THEY MIGHT BE APPLIED TO HYPOTHETICAL SITUATIONS OUTSIDE
THE CONSIDERABLE AREA WITHIN WHICH THEIR APPLICABILITY WAS SIMILARLY
CLEAR. 

WE DISAGREE WITH THE COURT OF APPEALS BOTH IN ITS APPROACH TO THIS
QUESTION AND IN ITS RESOLUTION OF IT.  THIS COURT HAS ON MORE THAN ONE
OCCASION INVALIDATED STAUTES UNDER THE DUE PROCESS CLAUSE OF THE FIFTH
OR FOURTEENTH AMENDMENT BECAUSE THEY CONTAINED NO STANDARD WHATEVER BY
WHICH CRIMINALITY COULD BE ASCERTAINED, AND THE DOCTRINE OF THESE CASES
HAS SUBSEQUENTLY ACQUIRED THE SHORTHAND DESCRIPTION OF "VOID FOR
VAGUENESS."  LANZETTA NEW JERSEY, 306 U.S. 451 (1939); WINTERS V. NEW
YORK, 333 U.S. 507 (1948).  IN THESE CASES, THE CRIMINAL PROVISION IS
VAGUE "NOT IN THE SENSE THAT IT REQUIRES A PERSON TO CONFORM HIS
CONDUCT TO AN IMPRECISE BUT COMPREHENSIBLE NORMATIVE STANDARD, BUT
RATHER IN THE SENSE THAT NO STANDARD OF CONDUCT IS SPECIFIED AT ALL." 
COATES V. CITY OF CINCINNATI, 402 U.S. 611, 614 (1971). 

BUT THE COURT OF APPEALS FOUND IN THIS CASE, AND WE AGREE, THAT
ARTS. 133 AND 134 ARE SUBJECT TO NO SUCH SWEEPING CONDEMNATION.  LEVY
HAD FAIR NOTICE FROM THE LANGUAGE OF EACH ARTICLE THAT THE PARTICULAR
CONDUCT WHICH HE ENGAGED IN WAS PUNISHABLE.  THIS IS A CASE, THEN, OF
THE TYPE ADVERTED TO IN SMITH V. GOGUEN, IN WHICH THE STATUTES " BY
THEIR TERMS OR AS AUTHORITATIVELY CONSTRUED APPLY WITHOUT QUESTION TO
CERTAIN ACTIVITIES, BUT WHOSE APPLICATION TO OTHER BEHAVIOR IS
UNCERTAIN."  415 U. S., AT 578.  THE RESULT OF THE COURT OF APPEALS'
CONCLUSION THAT LEVY HAD STANDING TO CHALLENGE THE VAGUENESS OF THESE
ARTICLES AS THEY MIGHT BE HYPOTHETICALLY APPLIED TO THE CONDUCT OF
OTHERS, EVEN THOUGH HE WAS SQUARELY WITHIN THEIR PROHIBITIONS, MAY STEM
FROM A BLENDING OF THE DOCTRINE OF VAGUENESS WITH THE DOCTRINE OF
OVERBREADTH, BUT WE DO NOT BELIEVE IT IS SUPPORTED BY PRIOR DECISIONS
OF THIS COURT. 

WE HAVE NOTED IN SMITH V. GOGUEN, ID., AT 573, THAT MORE PRECISION
IN DRAFTING MAY BE REQUIRED BECAUSE OF THE VAGUENESS DOCTRINE IN THE
CASE OF REGULATION OF EXPRESSION.  FOR THE REASONS WHICH DIFFERENTIATE
MILITYARY SOCIETY FROM CIVILIAN SOCIETY, WE THINK CONGRESS IS PERMITTED
TO LEGISLATE BOTH WITH GREATER BREADTH AND WITH GREATER FLEXIBILITY
WHEN PRESCRIBING THE RULES BY WHICH THE FORMER SHALL BE GOVERNED THAN
IT IS WHEN PRESCRIBING RULES FOR THE LATTER.  BUT EACH OF THESE
DIFFERENTIATIONS RELATES TO HOW STRICT A TEST OF VAGUENESS SHALL BE
APPLIED IN JUDGING A PARTICULAR CRIMINAL STATUTE.  NONE OF THEM
SUGGESTS THAT ONE WHO HAS RECEIVED FAIR WARNING OF THE CRIMINALITY OF
HIS OWN CONDUCT FROM THE STATUTE IN QUESTION IS NONETHELESS ENTITLED TO
ATTACK IT BECAUSE THE LANGUAGE WOULD NOT GIVE SIMILAR FAIR WARNING WITH
RESPECT TO OTHER CONDUCT WHICH MIGHT BE WITHIN ITS BROAD AND LITERAL
AMBIT.  ONE TO WHOSE CONDUCT A STATUTE CLEARLY APPLIES MAY NOT
SUCCESSFULLY CHALLENGE IT FOR VAGUENESS. 

BECAUSE OF THE FACTORS DIFFERENTIATING MILITARY SOCIETY FROM
CIVILIAN SOCIETY, WE HOLD THAT THE PROPER STANDARD OF REVIEW FOR A
VAGUENESS CHALLENGE TO THE ARTICLES OF THE CODE IS THE STANDARD WHICH
APPLIES TO CRIMINAL STATUTES REGULATING ECONOMIC AFFAIRS.  CLEARLY,
THAT STANDARD IS MET HERE, FOR AS THE COURT STATED IN UNITED STATES V.
NATIONAL DAIRY CORP., 372 U.S. 29, 32 - 33 (1963): 

"THE STRONG PRESUMPTIVE VALIDITY THAT ATTACHES TO AN ACT OF CONGRESS
HAS LED THIS COURT TO HOLD MANY TIMES THAT STATUTES ARE NOT
AUTOMATICALLY INVALIDATED AS VAGUE SIMPLY BECAUSE DIFFICULTY IS FOUND
IN DETERMINING WHETHER CERTAIN MARGINAL OFFENSES FALL WITHIN THEIR
LANGUAGE.  E. G., JORDAN V. DE GEORGE, 341 U.S. 223, 231 (1951), AND
UNITED STATES V. PETRILLO, 332 U.S. 1, 7 (1947).  INDEED, WE HAVE
CONSISTENTLY SOUGHT AN INTERPRETATION WHICH SUPPORTS THE
CONSTITUTIONALITY OF LEGISLATION.  E. G., UNITED STATES V. RUMELY, 345
U.S. 41, 47 (1953); CROWELL V. BENSON, 285 U.S. 22, 62 (1932); SEE
SCREWS V. UNITED STATES, 325 U.S. 91 (1945). 

     "VOID FOR VAGUENESS SIMPLY MEANS THAT CRIMINAL RESPONSIBILITY

SHOULD NOT ATTACH WHERE ONE COULD NOT REASONABLY UNDERSTAND THAT

  HIS CONTEMPLATED CONDUCT IS PROSCRIBED.  UNITED STATES V.

  HARRISS, 347 U.S. 612, 617 (1954).  IN DETERMINING THE

  SUFFICIENCY OF THE NOTICE A STATUTE MUST OF NECESSITY BE EXAMINED

  IN THE LIGHT OF THE CONDUCT WITH WHICH A DEFENDANT IS CHARGED. 

  ROBINSON V. UNITED STATES, 324 U.S. 282 (1945)." 

SINCE APPELLEE COULD HAVE HAD NO REASONABLE DOUBT THAT HIS PUBLISHED
STATEMENTS URGING NEGRO ENLISTED MEN NOT TO GO TO VIETNAM IF ORDERED TO
DO SO WERE BOTH "UNBECOMING AN OFFICER AND A GENTLEMAN," AND "TO THE
PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES," IN
VIOLATION OF PROVISIONS OF ARTS. 133 AND 134, RESPECTIVELY, HIS
CHALLENGE TO THEM AS UNCONSTITUTIONALLY VAGUE UNDER THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT MUST FAIL. 

WE LIKEWISE REJECT APPELLEE'S CONTENTION THAT ARTS. 133 AND 134 ARE
FACIALLY INVALID BECAUSE OF THEIR "OVERBREADTH."  IN GOODING V. WILSON,
405 U.S., AT 520 - 521, THE COURT SAID: 

"IT MATTERS NOT THAT THE WORDS APPELLEE USED MIGHT HAVE BEEN
CONSTITUTIONALLY PROHIBITED UNDER A NARROWLY AND PRECISELY DRAWN
STATUTE.  AT LEAST WHEN STATUTES REGULATE OR PROSCRIBE SPEECH AND WHEN
'NO READILY APPARENT CONSTRUCTION SUGGESTS ITSELF AS A VEHICLE FOR
REHABILITATING THE STATUTES IN A SINGLE PROSECUTION,'  DOMBROWSKI V.
PFISTER, 380 U.S. 479, 491 (1965), THE TRANSCENDENT VALUE TO ALL
SOCIETY OF CONSTITUTIONALLY PROTECTED EXPRESSION IS DEEMED TO JUSTIFY
ALLOWING 'ATTACKS ON OVERLY BROAD STATUTES WITH NO REQUIREMENT THAT THE
PERSON MAKING THE ATTACK DEMONSTRATE THAT HIS OWN CONDUCT COULD NOT BE
REGULATED BY A STATUTE DRAWN WITH THE REQUISITE NARROW SPECIFICITY' . .
. ." 

WHILE THE MEMBERS OF THE MILITARY ARE NOT EXCLUDED FROM THE
PROTECTION GRANTED BY THE FIRST AMENDMENT, THE DIFFERENT CHARACTER OF
THE MILITARY COMMUNITY AND OF THE MILITARY MISSION REQUIRES A DIFFERENT
APPLICATION OF THOSE PROTECTIONS.  THE FUNDAMENTAL NECESSITY FOR
OBEDIENCE, AND THE CONSEQUENT NECESSITY FOR IMPOSITION OF DISCIPLINE,
MAY RENDER PERMISSIBLE WITHIN THE MILITARY THAT WHICH WOULD BE
CONSTITUTIONALLY IMPERMISSIBLE OUTSIDE IT.  DOCTRINES OF FIRST
AMENDMENT OVERBREADTH ASSERTED IN SUPPORT OF CHALLENGES TO IMPRECISE
LANGUAGE LIKE THAT CONTAINED IN ARTS. 133 AND 134 ARE NOT EXEMPT FROM
THE OPERATION OF THESE PRINCIPLES.  THE UNITED STATES COURT OF MILITARY
APPEALS HAS SENSIBLY EXPOUNDED THE REASON FOR THIS DIFFERENT
APPLICATION OF FIRST AMENDMENT DOCTRINES IN ITS OPINION IN UNITED
STATES V. PRIEST, 21 U.S.C.M.A., AT 570, 45 C. M. R., AT 344: 

     "IN THE ARMED FORCES SOME RESTRICTIONS EXIST FOR REASONS THAT

  HAVE NO COUNTERPART IN THE CIVILIAN COMMUNITY.  DISRESPECTFUL AND

  CONTEMPTUOUS SPEECH, EVEN ADVOCACY OF VIOLENT CHANGE, IS

  TOLERABLE IN THE CIVILIAN COMMUNITY, FOR IT DOES NOT DIRECTLY

  AFFECT THE CAPACITY OF THE GOVERNMENT TO DISCHARGE ITS

  RESPONSIBILITIES UNLESS IT BOTH IS DIRECTED TO INCITING IMMINENT

  LAWLESS ACTION AND IS LIKELY TO PRODUCE SUCH ACTION.  BRANDENBURG

  V. OHIO, (395 U.S. 444 (1969)).  IN MILITARY LIFE, HOWEVER, OTHER

CONSIDERATIONS MUST BE WEIGHED.  THE ARMED FORCES DEPEND ON A

  COMMAND STRUCTURE THAT AT TIMES MUST COMMIT MEN TO COMBAT, NOT

  ONLY HAZARDING THEIR LIVES BUT ULTIMATELY INVOLVING THE SECURITY

  OF THE NATION ITSELF.  SPEECH THAT IS PROTECTED IN THE CIVIL

  POPULATION MAY NONETHELESS UNDERMINE THE EFFECTIVENESS OF

  RESPONSE TO COMMAND.  IF IT DOES, IT IS CONSTITUTIONALLY

  UNPROTECTED.  UNITED STATES V. GRAY, (20 U. .S C. M. A. 63, 42 C.

  M. R. 255 (1970))." 

IN BROADRICK V. OKLAHOMA, 413 U.S. 601, 610 (1973), WE SAID THAT
"(EMBEDDED IN THE TRADITIONAL RULES GOVERNING CONSTITUTIONAL
ADJUDICATION IS THE PRINCIPLE THAT A PERSON TO WHOM A STATUTE MAY
CONSTITUTIONALLY BE APPLIED WILL NOT BE HEARD TO CHALLENGE THAT STATUTE
ON THE GROUND THAT IT MAY CONCEIVABLY BE APPLIED UNCONSTITUTIONALLY TO
OTHERS, IN OTHER SITUATIONS NOT BEFORE THE COURT."  WE FURTHER
COMMENTED IN THAT CASE THAT "(IN THE THE PAST, THE COURT HAS RECOGNIZED
SOME LIMITED EXCEPTIONS TO THESE PRINCIPLES, BUT ONLY BECAUSE OF THE
MOST 'WEIGHTY COUNTERVAILING POLICIES.'"  ID., AT 611.  ONE OF THOSE
EXCEPTIONS "HAS BEEN CARVED OUT IN THE AREA OF THE FIRST AMENDMENT." 
IBID.  IN THE FIRST AMENDMENT CONTEXT ATTACKS HAVE BEEN PERMITTED "ON
OVERLY BROAD STATUTES WITH NO REQUIREMENT THAT THE PERSON MAKING THE
ATTACK DEMONSTRATE THAT HIS OWN CONDUCT COULD NOT BE REGULATED BY A
STATUTE DRAWN WITH THE REQUISITE NARROW SPECIFICITY," DOMBROWSKI V.
PFISTER, 380 U.S. 479, 486 (1965). 

THIS COURT HAS, HOWEVER, REPEATEDLY EXPRESSED ITS RELUCTANCE TO
STRIKE DOWN A STATUTE ON ITS FACE WHERE THERE WERE SUBSTANTIAL NUMBER
OF SITUATIONS TO WHICH IT MIGHT BE VALIDLY APPLIED.  THUS, EVEN IF
THERE ARE MARGINAL APPLICATIONS IN WHICH A STATUTE WOULD INFRINGE ON
FIRST AMENDMENT VALUES, FACIAL INVALIDATION IS INAPPROPRIATE IF THE
"REMAINDER OF THE STATUTE . . . COVERS A WHOLE RANGE OF EASILY
IDENTIFIABLE AND CONSTITUTIONALLY PROSCRIBABLE . . . CONDUCT . . . ." 
UNITED STATES CIVIL SERVICE COMM'N V. NATIONAL ASSOCIATION OF LETTER
CARRIERS, 413 U.S. 548, 580 - 581 (1973).  AND THE COURT RECOGNIZED IN
BROADRICK, SUPRA, THAT "WHERE CONDUCT AND NOT MERELY SPEECH IS
INVOLVED" THE OVERBREADTH MUST "NOT ONLY BE REAL, BUT SUBSTANTIAL AS
WELL, JUDGED IN RELATION TO THE STATUTE'S PLAINLY LEGITIMATE SWEEP." 
413 U.S., AT 615.  HERE, AS THE MANUAL MAKES CLEAR, BOTH ART. 133 AND
ART. 134 DO PROHIBIT A "WHOLE RANGE OF EASILY IDENTIFIABLE AND
CONSTITUTIONALLY PROSCRIBABLE CONDUCT." 

BOTH BROADRICK AND LETTER CARRIERS INVOLVED BASICALLY NONCRIMINAL
SANCTIONS IMPOSED ON FEDERAL AND STATE EMPLOYEES WHO WERE OTHERWISE
CIVILIANS.  THE UNIFORM CODE OF MILITARY JUSTICE APPLIES A SERIES OF
SANCTIONS, VARYING FROM SEVERE CRIMINAL PENALTIES TO ADMINISTRATIVELY
IMPOSED MINOR SANCTIONS, UPON MEMBERS OF THE MILITARY.  HOWEVER, FOR
THE REASONS DICTATING A DIFFERENT APPLICATION OF FIRST AMENDMENT
PRINCIPLES IN THE MILITARY CONTEXT DESCRIBED ABOVE, WE THINK THAT THE
"'WEIGHTY COUNTERVAILING POLICIES,'" BROADRICK, SUPRA, AT 611, WHICH
PERMIT THE EXTENSION OF STANDING IN FIRST AMENDMENT CASES INVOLVING
CIVILIAN SOCIETY, MUST BE ACCORDED A GOOD DEAL LESS WEIGHT IN THE
MILITARY CONTEXT. 

THERE IS A WIDE RANGE OF THE CONDUCT OF MILITARY PERSONNEL TO WHICH
ARTS. 133 AND 134 MAY BE APPLIED WITHOUT INFRINGEMENT OF THE FIRST
AMENDMENT.  WHILE THERE MAY LURK AT THE FRINGES OF THE ARTICLES, EVEN
IN THE LIGHT OF THEIR NARROWING CONSTRUCTION BY THE UNITED STATES COURT
OF MILITARY APPEALS, SOME POSSIBILITY THAT CONDUCT WHICH WOULD BE
ULTIMATELY HELD TO BE PROTECTED BY THE FIRST AMENDEMT COULD BE INCLUDED
WITHIN THEIR PROHIBITION, WE DEEM THIS INSUFFICIENT TO INVALIDATE
EITHER OF THEM AT THE BEHEST OF APPELLEE.  HIS CONDUCT, THAT OF A
COMMISSIONED OFFICER PUBLICLY URGING ENLISTED PERSONNEL TO REFUSE TO
OBEY ORDERS WHICH MIGHT SEND THEM INTO COMBAT, WAS UNPROTECTED UNDER
THE MOST EXPANSIVE NOTIONS OF THE FIRST AMENDMENT.  ARTICLES 133 AND
134 MAY CONSTITUTIONALLY PROHIBIT THAT CONDUCT, AND A SUFFICIENTLY
LARGE NUMBER OF SIMILAR OR RELATED TYPES OF CONDUCT SO AS TO PRECLUDE
THEIR INVALIDATION FOR OVERBREADTH. 

        IV 

APPELL URGES THAT SHOULD WE DISAGREE WITH THE COURT OF APPEALS AS TO
THE CONSTITUTIONALITY OF ARTS. 133 AND 134, WE SHOULD NONETHELESS
AFFIRM ITS JUDGMENT BY INVALIDATING HIS CONVICTION UNDER ART. 90.  HE
CONTENDS THAT TO CARRY OUT THE HOSPITAL COMMANDANT'S ORDER TO TRAIN
AIDE MEN IN DERMATOLOGY WOULD HAVE CONSTITUTED PARTICIPATION IN A WAR
CRIME, AND THAT THE COMMANDANT GAVE THE ORDER IN QUESTION, KNOWING THAT
IT WOULD BE DISOBEYED, FOR THE SOLE PURPOSE OF INCREASING THE
PUNISHMENT WHICH COULD BE IMPOSED UPON APPELLEE, THE COURT OF APPEALS
OBSERVED THAT EACH OF THESE DEFENSES WAS RECOGNIZED UNDER THE UNIFORM
CODE OF MILITARY JUSTICE, BUT HAD BEEN RESOLVED AGAINST APPELLEE ON A
FACTUAL BASIS BY THE COURT-MARTIAL WHICH CONVICTED HIM.  THE COURT WENT
ON TO SAY THAT: 

     "IN ISOLATION, THESE FACTUAL DETERMINATIONS ADVERSE TO

  APPELLANT UNDER AN ADMITTEDLY VALID ARTICLE ARE NOT OF

  CONSTITUTIONAL SIGNIFICANCE AND RESULTANTLY, ARE BEYOND OUR SCOPE

  OF REVIEW."  478 F.2D, AT 797.  SEE WHELCHEL V. MCDONALD, 340

  U.S. 122 (1950). 

WE AGREE WITH THE COURT OF APPEALS. 

APPELLEE IN HIS BRIEF HERE MOUNTS A NUMBER OF ALTERNATIVE ATTACKS ON
THE SENTENCE IMPOSED BY THE COURT-MARTIAL, ATTACKS WHICH WERE NOT
TREATED BY THE COURT OF APPEALS IN ITS OPINION IN THIS CASE.  TO THE
EXTENT THAT THESE POINTS WERE PROPERLY PRESENTED TO THE DISTRICT COURT
AND PRESERVED ON APPEAL TO THE COURT OF APPEALS, AND TO THE EXTENT THAT
THEY ARE OPEN ON FEDERAL HABEAS CORPUS REVIEW OF COURT-MARTIAL
CONVICTIONS UNDER BURNS V. WILSON, 346 U.S. 137 (1953), WE BELIEVE THEY
SHOULD BE ADDRESSED BY THE COURT OF APPEALS IN THE FIRST INSTANCE. 

              REVERSED. 

/1/  SEE U.S.C. APP. 454 (J). 

/2/  ARTICLE 90 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C.
890, PROVIDES:  "ANY PERSON SUBJECT TO THIS CAPTER WHO-- 

"(1) STRIKES HIS SUPERIOR COMMISSIONED OFFICER OR DRAWS OR LIFTS UP
ANY WEAPON OR OFFERS ANY VIOLENCE AGAINST HIM WHILE HE IS IN THE
EXECUTION OF HIS OFFICE; OR 

"(2) WILLFULLY DISOBEYS A LAWFUL COMMAND OF HIS SUPERIOR
COMMISSIONED OFFICER; "SHALL BE PUNISHED, IF THE OFFENSE IS COMMITTED
IN TIME OF WAR, BY DEATH OR SUCH OTHER PUNISHMENT AS A COURT-MARTIAL
MAY DIRECT, AND IF THE OFFENSE IS COMMITTED AT ANY OTHER TIME, BY SUCH
PUNISHMENT, OTHER THAN DEATH, AS A COURT-MARTIAL MAY DIRECT."     /3/
ARTICLE 133 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 933,
PROIVES: 

"ANY COMMISSIONED OFFICER, CADET, OR MIDSHIPMAN WHO IS CONVICTED OF
CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN SHALL BE PUNISHED AS A
COURT-MARTIAL MAY DIRECT." 

/4/  ARTICLE 134 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C.
934, PROVIDES: 

"THOUGH NOT SPECIFICALLY MENTIONED IN THIS CHAPTER, ALL DISORDERS
AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED
FORCES, ALL CONDUCT OF A NATURE TO BEING DISCREDIT UPON THE ARMED
FORCES, AND CRIMES AND OFFENSES NOT CAPITAL, OF WHICH PERSONS SUBJECT
TO THIS CHAPTER MAY BE GUILTY, SHALL BE TAKEN COGNIZANCE OF BY A
GENERAL, SPECIAL, OR SUMMARY COURT-MARTIAL, ACCORDING TO THE NATURE AND
DEGREE OF THE OFFENSE, AND SHALL BE PUNISHED AT THE DISCRETION OF THAT
COURT." 

/5/  THE SPECIFICATION UNDER ART. 134 (CHARGE II) ALLEGED IN FULL: 

"IN THAT CAPTAIN HOWARD B. LEVY, U. S. ARMY, HEADQUARTERS AND
HEADQUARTERS COMPANY, UNITED STATES ARMY HOSPITAL, FORT JACKSON, SOUTH
CAROLINA, DID, AT FORT JACKSON, SOUTH CAROLINA, ON OR ABOUT THE PERIOD
FEBRUARY 1966 TO DECEMBER 1966, WITH DESIGN TO PROMOTE DISLOYALTY AND
DISAFFECTION AMONG THE TROOPS, PUBLICLY UTTER THE FOLLOWING STATEMENTS
TO DIVERS ENLISTED PERSONNEL AT DIVERS TIMES:  'THE UNITED STATES IS
WRONG IN BEING INVOLVED IN THE VIET NAM WAR.  I WOULD REFUSE TO GO TO
VIET NAM IF ORDERED TO DO SO.  I DON'T SEE WHY ANY COLORED SOLDIER
WOULD GO TO VIET NAM; THEY SHOULD REFUSE TO GO TO VIET NAM AND IF SENT
SHOULD REFUSE TO FIGHT BECAUSE THEY ARE DISCRIMINATED AGAINST AND
DENIED THEIR FREEDOM IN THE UNITED STATES, AND THEY ARE SACRIFICED AND
DISCRIMINATED AGAINST IN VIET NAM BY BEING GIVEN ALL THE HAZARDOUS DUTY
AND THEY ARE SUFFERING THE MAJORITY OF CASUALTIES.  IF I WERE A COLORED
SOLDIER I WOULD REFUSE TO GO TO VIET NAM AND IF I WERE A COLORED
SOLDIER AND WERE SENT I WOULD REFUSE TO FIGHT.  SPECIAL FORCES
PERSONNEL ARE LIARS AND THIEVES AND KILLERS OF PEASANTS AND MURDERERS
OF WOMEN AND CHILDREN,' OR WORDS TO THAT EFFECT, WHICH STATEMENTS WERE
DISLOYAL TO THE UNITED STATES, TO THE PREJUDICE OF GOOD ORDER AND
DISCIPLINE IN THE ARMED FORCES." 

/6/  THE SPECIFICATION UNDER ART. 133 (ADDITIONAL CHARGE I) ALLEGED
THAT APPELLEE "DID . . . AT DIVERS TIMES DURING THE PERIOD FROM ON OR
ABOUT FEBRUARY 1966 TO ON OR ABOUT DECEMBER 1966 WHILE IN THE
PERFORMANCE OF HIS DUTIES AT THE UNITED STATES ARMY HOSPITAL, FORT
JACKSON, SOUTH CAROLINA, WRONGFULLY AND DISHONORABLY MAKE THE FOLLOWING
STATEMENTS OF THE NATURE AND TO AND IN THE PRESENCE AND HEARING OF THE
PERSONS AS HEREINAFTER MORE PARTICULARLY DESCRIBED, TO WIT:  (1)
INTEMPERATE, DEFAMATORY, PROVOKING, AND DISLOYAL STATEMENTS TO SPECIAL
FORCES ENLISTED PERSONNEL PRESENT FOR TRAINING IN THE UNITED STATES
ARMY HOSPITAL, FORT JACKSON, SOUTH CAROLINA, AND IN THE PRESENCE AND
HEARING OF OTHER ENLISTED PERSONNEL, BOTH PATIENTS AND THOSE PERFORMING
DUTY UNDER HIS IMMEDIATE SUPERVISION AND CONTROL AND DEPENDENT PATIENTS
AS FOLLOWS: 'I WILL NOT TRAIN SPECIAL FORCES PERSONNEL BECAUSE THEY ARE
"LIARS AND THIEVES,"'"KILLERS OF PEASANTS,"  AND "MURDERERS OF WOMEN
AND CHILDREN,"' OR WORDS TO THAT EFFECT; (2) INTEMPERATE AND DISLOYAL
STATEMENTS TO ENLISTED PERSONNEL, BOTH PATIENTS AND THOSE PERFORMING
DUTY UNDER HIS IMMEDIATE SUPERVISION AND CONTROL AS FOLLOWS: 'I WOULD
REFUSE TO GO TO VIETNAM IF ORDERED TO DO SO.  I DO NOT SEE WHY ANY
COLORED SOLDIER WOULD GO TO VIETNAM.  THEY SHOULD REFUSE TO GO TO
VIETNAM; AND, IF SENT, THEY SHOULD REFUSE TO FIGHT BECAUSE THEY ARE
DISCRIMINATED AGAINST AND DENIED THEIR FREEDOM IN THE UNITED STATES AND
THEY ARE SACRIFICED AND DISCRIMINATED AGAINST IN VIETNAM BY BEING GIVEN
ALL THE HAZARDOUS DUTY, AND THEY ARE SUFFERING THE MAJORITY OF
CASUALTIES.  IF I WERE A COLORED SOLDIER, I WOULD REFUSE TO GO TO
VIETNAM; AND, IF I WERE A COLORED SOLDIER AND IF I WERE SENT TO
VIETNAM, I WOULD REFUSE TO FIGHT', OR WORDS TO THAT EFFECT; (3)
INTEMPERATE, CONTEMPTUOUS, AND DISRESPECTFUL STATEMENTS TO ENLISTED
PERSONNEL PERFORMING DUTY UNDER HIS IMMEDIATE SUPERVISION AND CONTROL,
AS FOLLOWS: 'THE HOSPITAL COMMANDER HAS GIVEN ME AN ORDER TO TRAIN
SPECIAL FORCES PERSONNEL, WHICH ORDER I HAVE REFUSED AND WILL NOT
OBEY,' OR WORDS TO THAT EFFECT; (4) INTEMPERATE, DEFAMATORY, PROVOKING,
AND DISLOYAL STATEMENTS TO SPECIAL FORCES PERSONNEL IN THE PRESENCE AND
HEARING OF ENLISTED PERSONNEL PERFORMING DUTY UNDER HIS IMMEDIATE
SUPERVISION AND CONTROL, AS FOLLOWS: 'I HOPE WHEN YOU GET TO VIETNAM
SOMETHING HAPPENS TO YOU AND YOU ARE INJURED,' OR WORDS TO THAT EFFECT;
ALL OF WHICH STATEMENTS WERE MADE TO PERSONS WHO KNEW THAT THE SAID
HOWARD B. LEVY WAS A COMMISSIONED OFFICER IN THE ACTIVE SERVICE OF THE
UNITED STATES ARMY." 

/7/  UNITED STATES V. LEVY, CM 416463, 39 C. M. R. 672 (1968),
PETITION FOR REVIEW DENIED, NO. 21,641, 18 U.S.C. M. A . 627 (1969). 
APPELLEE ALSO UNSUCCESSFULLY SOUGHT RELIEF IN THE CIVILIAN COURTS. 
LEVY V. CORCORAN, 128 U. S. APP. D. C. 388, 389 F.2D 929, APPLICATION
FOR STAY DENIED, 387 U. S. 915, CERT. DENIED, 389 U. S. 960 (1967);
LEVY V. RESOR, 17 U.S.C. M. A. 135, 37 C. M. R. 399 (1967); LEVY V.
RESOR, CIV. NO. 67 - 442 (SC JULY 5 1967), AFF'D PER CURIAM, 384 F.2D
689 (CA4 1967), CERT. DENIED, 389 U. S. 1049 (1968); LEVY V. DILLON,
286 F. SUPP. 593 (KAN. 1968), AFF'D, 415 F.2D 1263 (CA10 1969). 

/8/  UNITED STATES V. HOWE, 17 U.S.C. M. A. 165, 37 C. M. R. 429
(1967); UNITED STATES V. SADINSKY, 14 U.S.C. M. A. 563, 34 C. M. R. 343
(1964); UNITED STATES V. FRANTZ, 2 U.S.C. M. A. 161, 7 C. M. R. 37
(1953). 

/9/  MANUAL FOR COURTS-MARTIAL 213F (5) (1969). 

/10/  TITLE 28 U.S.C. 1252 PROVIDES IN PERTINENT PART THAT "(ANY
PARTY MAY APPEAL TO THE SUPREME COURT FROM AN INTERLOCUTORY OR FINAL
JUDGMENT, DECREE OR ORDER OF ANY COURT OF THE UNITED STATES, . . .
HOLDING AN ACT OF CONGRESS UNCONSTITUTIONAL IN ANY CIVIL ACTION, SUIT,
OR PROCEEDING TO WHICH THE UNITED STATES OR ANY OF ITS AGENCIES, OR ANY
OFFICER OR EMPLYEE THEREOF, AS SUCH OFFICER OR EMPLOYEE, IS A PARTY . .
. ."  IN HIS MOTION TO DISMISS OR AFFIRM, APPELLEE URGED A LACK OF
JURISDICTION IN THIS COURT BECAUSE THE ATTORNEYS WHO FILED AND SERVED
THE NOTICE OF APPEAL WERE NOT ATTORNEYS OF RECORD AND BECAUSE THE
ATTORNEY EFFECTING SERVICE FAILED TO COMPLY WITH THE RULE 33.3 (C) OF
THIS COURT REQUIRING PERSONS NOT ADMITTED TO THE BAR OF THIS COURT TO
PROVE SERVICE BY AFFIDAVIT, RATHER THAN BY CERTIFICATE.  APPELLEE
ALTERNATIVELY CONTENDED THAT 28 U.S.C. 1252 WAS NOT INTENDED TO PERMIT
APPEALS FROM THE COURTS OF APPEALS, BUT ONLY FROM THE DISTRICT COURTS. 
WE POSTPONED CONSIDERATION OF THE JURISDICTIONAL QUESTION TO THE
HEARING ON THE MERITS.  APPELLEE NOW RENEWS HIS CONTENTIONS THAT THE
ASSERTED DEFECTS IN APPELLANTS' FILING OF T'EIR NOTICE OF APPEAL SHOULD
BE TREATED AS A FAILURE TO FILE A TIMELY NOTICE OF APPEAL, AND THAT THE
APPEAL MUST ACCORDINGLY BE DISMISSED.  SEE, E. G., TERRITO V. UNITED
STATES, 358 U.S. 279 (1959); DEPARTMENT OF BANKING V. PINK, 317 U. S.
264, 268 (1942).  HE ALSO URGES THAT THE QUESTION WHETHER AN APPEAL MAY
BE TAKEN TO THIS COURT FROM THE COURT OF APPEALS UNDER 28 U.S.C. 1252
PRESENTS A QUESTION OF FIRST IMPRESSION. 

WE HOLD THAT "ANY COURT OF THE UNITED STATES," AS USED IN 1252,
INCLUDES THE COURTS OF APPEALS.  THE REVISER'S NOTE FOR 1252 STATES
THAT THE "TERM 'ANY COURT OF THE UNITED STATES' INCLUDES THE COURT OF
APPEALS . . . ."  THE DEFINITIONAL SECTION OF TITLE 28, U.S.C. 451,
PROVIDES: "AS USED IN THIS TITLE: THE TERM 'COURT OF THE UNITED STATES'
INCLUDES THE SUPREME COURT OF THE UNITED STATES, COURTS OF APPEALS,
DISTRICT COURTS . . . ."  OUT READING OF 1252 IS FURTHER SUPPORTED BY
THAT SECTION'S LEGISLATIVE HISTORY.  SECTION 1252 WAS ORIGINALLY
ENACTED AS 2 OF THE ACT OF AUGUST 24, 1937, C. 754, 50 STAT. 751. 
INCLUDE ANY "CIRCUIT COURT OF APPEALS."  WE ALSO FIND NO MERIT IN
APPELLEE'S CONTENTION THAT THE ASSERTED DEFECTS IN APPELLANTS' NOTICE
OF APPEAL DEPRIVE THIS COURT OF JURISDICTION.  AS APPELLANTS NOTE,
APPELLEE MAKES NO CLAIM THAT HE DID NOT HAVE ACTUAL NOTICE OF THE
FILING OF THE NOTICE OF APPEAL.  ASSUMING THAT THERE WAS TECHNICAL
NONCOMPLIANCE WITH RULE 33 OF THE COURT FOR THE REASONS URGED BY
APPELLEE, THAT NONCOMPLIANCE DOES NOT DEPRIVE THIS COURT OF
JURISDICTION.  CF. TAGLIANETTI V. UNITED STATES, 394 U. S. 316 N. 1
(1969); HEFLIN V. UNITED STATES, 358 U. S. 415, 418 N. 7 (1959). 

/11/  SECTION XX, ART. III OF THE BRITISH ARTICLES OF WAR OF 1765. 
W. WINTHROP, MILITARY LAW AND PRECEDENTS 946 (2D ED. 1920). 

/12/  SECTION XV, ART. XXIII, OF THE BRITISH ARTICLES OF WAR 1765;
WINTHROP, SUPRA, AT 945. 

/13/  ARTICLE XLVII OF THE AMERICAN ARTICLES OF WAR 1775; WINTHROP,
SUPRA, AT 957. 

/14/  ID., AT 22. 

/15/  ARTICLE 21 OF SECTION XIV OF THE AMERICAN ARTICLES OF WAR OF
1776; WINTHROP, SUPRA, AT 969. 

/16/  ARTICLE 83 OF SECTION 1 OF THE AMERICAN ARTICLES OF WAR OF
1806; WINTHROP, SUPRA, AT 983. 

/17/  ARTICLE L OF THE AMERICAN ARTICLES OF WAR OF 1775, ART. 5 OF
AT 957, 971. 

/18/  ACT OF AUG. 29, 1916, C. 418, 39 STAT. 619, 666. 

/19/  FLETCHER V. UNITED STATES, 26 CT. CL. 541, 563 (1891). 

/20/  SWAIM V. UNITED STATES, 28 CT. CL. 173, 228 (1893). 

/21/  ART. 15 (A), 10 U.S.C. 815 (A). 

/22/  MANUAL, SUPRA, 213C (1969). 

/23/  ID., 213F (5). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE JOINS,
CONCURRING. 

I WHOLLY CONCUR IN THE COURT'S OPINION.  I WRITE ONLY TO STATE WHAT
FOR ME IS A CRUCIAL DIFFERENCE BETWEEN THE MAJORITY AND DISSENTING
VIEWS IN THIS CASE.  MY BROTHER STEWART COMPLAINS THAT ME OF COMMON
INTELLIGENCE MUST NECESSARILY SPECULATE AS TO WHAT "CONDUCT UNBECOMING
AN OFFICER AND A GENTLEMAN" OR CONDUCT TO THE "PREJUDICE OF GOOD ORDER
AND DISCIPLINE IN THE ARMED FORCES"  OR CONDUCT "OF A NATURE TO BRING
DISCREDIT UPON THE ARMED FORCES" REALLY MEANS.  HE IMPLIES THAT THE
AVERAGE SOLDIER OR SAILOR WOULD NOT REASONABLY EXPECT, UNDER THE
GENERAL ARTICLES, TO SUFFER MILITARY REPRIMAND OR PUNISHMENT FOR
ENGAGING IN SEXUAL ACTS WITH A CHICKEN, OR WINDOW PEEPING IN A TRAILER
PARK, OR CHEATING WHILE CALLING BINGO NUMBERS.  POST, AT 779.  HE
ARGUES THAT "TIMES HAVE SURELY CHANGED" AND THAT THE ARTICLES ARE "SO
VAGUE AND UNCERTAIN AS TO BE INCOMPREHENSIBLE TO THE SERVICEMEN WHO ARE
TO BE GOVERNED BY THEM."  POST, AT 781, 788. 

THESE ASSERTIONS ARE, OF COURSE, NO LESS JUDICIAL FANTASY THAN THAT
WHICH THE DISSENT CHARGES THE MAJORITY OF INDULGING.  IN ACTUALITY,
WHAT IS AT ISSUE HERE ARE CONCEPTS OF "RIGHT" AND "WRONG" AND WHETHER
THE CIVIL LAW CAN ACCOMMODATE, IN SPECIAL CIRCUMSTANCES, A SYSTEM OF
LAW WHICH EXPECTS MORE OF THE INDIVIDUAL IN THE CONTEXT OF A BROADER
VARIETY OF RELATIONSHIPS THAN ONE FINDS IN CIVILIAN LIFE. 

IN MY JUDGMENT, TIMES HAVE NOT CHANGED IN THE AREA OF MORAL
PRECEPTS.  FUNDAMENTAL CONCEPTS OF RIGHT AND WRONG ARE THE SAME NOW AS
THEY WERE UNDER THE ARTICLES OF THE EARL OF ESSEX (1642), OR THE
BRITISH ARTICLES OF WAR OF 1765, OR THE AMERICAN ARTICLES OF WAR OF
1775, OR DURING THE LONG LINE OF PRECEDENTS OF THIS AND OTHER COURTS
UPHOLDING THE GENERAL ARTICLES.  AND, HOWEVER UNFORTUNATE IT MAY BE, IT
IS STILL NECESSARY TO MAINTAIN A DISCIPLINED AND OBEDIENT FIGHTING
FORCE. 

A NOTED CONNENTATOR, PROFESSOR BISHOP OF YALE, HAS RECENTLY STATED
THAT "(AMOST ALL OF THE ACTS ACTUALLY CHARGED UNDER (ARTICLES 133 AND
134), NOTABLY DRUG OFFENSES, ARE OF A SORT WHICH ORDINARY SOLDIERS
KNOWS, OR SHOULD KNOW, TO BE PUNISHABLE."  J. BISHOP, JUSTICE UNDER
FIRE 87 - 88 (1974).  I AGREE.  THE SUBTLE AIRS THAT GOVERN THE COMMAND
RELATIONSHIP ARE NOT ALWAYS CAPABLE OF SPECIFICATION.  THE GENERAL
ARTICLES ARE ESSENTIAL NOT ONLY TO PUNISH PATENTLY CRIMINAL CONDUCT,
BUT ALSO TO FOSTER AN ORDERLY AND DUTIFUL FIGHTING FORCE.  ONE NEED
ONLY READ THE HISTORY OF THE PERMISSIVE--AND SHORT-LIVED--REGIME OF THE
SOVIET ARMY IN THE EARLY DAYS OF THE RUSSIAN REVOLUTION TO KNOW THAT
COMMAND INDULGENCE OF AN UNDISCIPLINED RANK AND FILE CAN DECIMATE A
FIGHTING FORCE.  MOREOVER, THE FEARFUL SPECTER OF ARBITRARY ENFORCEMENT
OF THE ARTICLES, THE ENGINE OF THE DISSENT, IS DISABLED, IN MY VIEW, BY
THE ELABORATE SYSTEM OF MILITARY JUSTICE THAT CONGRESS HAS PROVIDED TO
SERVICEMEN, AND BY THE SELF-EVIDENT, AND SELF-SELECTIVE, FACTOR THAT
COMMANDERS WHO ARE ARBITRARY WITH THEIR CHARGES WILL NOT PRODUCE THE
EFFICIENT AND EFFECTIVE MILITARY ORGANIZATION THIS COUNTRY NEEDS AND
DEMANDS FOR ITS DEFENSE. 

IN FLETCHER V. UNITED STATES, 26 CT. CL. 541 (1891), THE COURT OF
CLAIMS REVIEWED A COURT-MARTIAL FINDING THAT A CAPTAIN FLETCHER WAS
GUILTY OF CONDUCT UNBECOMING AN OFFICER IN HAVING, "'WITH INTENT TO
DEFRAUD, FAILED, NEGLECTED, AND REFUSED TO PAY (ONE W.)  THE AMOUNT DUE
HIM, THOUGH REPEATEDLY REQUESTED TO DO SO.'"  THE COURT FOUND THIS
CHARGED OFFENSE TO COME WITHIN THE ARTICLE.  THE SENTIMENTS EXPRESSED
BY JUDGE NOTT, WRITING FOR THE COURT IN THAT CASE, ARE JUST AS
APPLICABLE TO THE CASE WE DECIDE TODAY. 

     "IT MUST BE CONFESSED THAT, IN THE AFFAIRS OF CIVIL LIFE AND

  UNDER THE RULES AND PRINCIPLES OF MUNICIPAL LAW, WHAT WE

  ORDINARILY KNOW AS FRAUD RELATES TO THE OBTAINING OF A MAN'S

 MONEY, AND NOT TO REFUSING TO PAY IT BACK.  IT IS HARD FOR THE

  TRAINED LAWYER TO CONCEIVE OF AN INDICTMENT OR DECLARATION WHICH

  SHOULD ALLEGE THAT THE DEFENDANT DEFRAUDED A OR B BY REFUSING TO

  RETURN TO HIM THE MONEY WHICH HE HAD BORROWED FROM HIM.  OUR

  LEGAL TRAINING, THE LEGAL HABIT OF MIND, AS IT IS TERMED,

  INCLINES US TO DISSOCIATE PUNISHMENT FROM ACTS WHICH THE LAW DOES

  NOT DEFINE AS OFFENSES.  AS ONE OF OUR GREATEST WRITERS OF

  FICTION PUTS IT, WITH METAPHYSICAL FITNESS AND ACCURATE SARCASM,

  AS SHE DESCRIBES ONE OF HER LEGAL CHARACTERS, 'HIS MORAL HORIZON

 WAS LIMITED BY THE CIVIL CODE OF TENNESSEE.'  THAT IT IS A FRAUD

  TO OBTAIN A MAN'S MONEY BY DISHONEST REPRESENTATIONS, BUT NOT A

  FRAUD TO KEEP IT AFTERWARDS BY ANY AMOUNT OF LYING AND DECIT, IS

  A DISTINCTION OF STATUTORY TRACING.  THE GAMBLER WHO THROWS AWAY

  OTHER PEOPLE'S MONEY AND THE SPENDTHRIFT WHO USES IT IN LUXURIOUS

  LIVING INSTEAD OF PAYING IT BACK, CHEAT AND DEFRAUD THEIR

  CREDITORS AS EFFECTUALLY AS THE KNAVES AND SHARPERS WHO DRIFT

  WITHIN THE MESHES OF THE CRIMINAL LAW.  WE LEARNT AS LAW STUDENTS

 IN BLACKSTONE THAT THERE ARE THINGS WHICH ARE MALUM IN SE AND, IN

  ADDITION TO THEM, THINGS WHICH ARE MERELY MALUM PROHIBITUM; BUT

  UNHAPPILY IN THE AFFAIRS OF REAL LIFE WE FIND THAT THERE ARE MANY

  THINGS WHICH ARE MALUM IN SE WITHOUT LIKEWISE BEING MALUM

  PROHIBITUM.  IN MILITARY LIFE THERE IS A HIGHER CODE TERMED

  HONOR, WHICH HOLDS ITS SOCIETY TO STRICTER ACCOUNTABILITY; AND IT

  IS NOT DESIRABLE THAT THE STANDARD OF THE ARMY SHALL COME DOWN TO

  THE REQUIREMENTS OF A CRIMINAL CODE."  ID., AT 562 - 563. 

RELATIVISTIC NOTIONS OF RIGHT AND WRONG, OR SITUATION ETHICS, AS
SOME CALL IT, HAVE ACHIEVED IN RECENT TIMES A DISTURBINGLY HIGH LEVEL
OF PROMINENCE IN THIS COUNTRY, BOTH IN THE GUISE OF LAW REFORM, AND AS
A JUSTIFICATION OF CONDUCT THAT PERSONS WOULD NORMALLY ESCHEW AS
IMMORAL AND EVEN ILLEGAL.  THE TRUTH IS THAT THE MORAL HORIZONS OF THE
AMERICAN PEOPLE ARE NOT FOOTLOOSE, OR LIMITED SOLELY BY "THE CIVIL CODE
OF TENNESSEE."  THE LAW SHOULD, IN APPROPRIATE CIRCUMSTANCES, BE
FLEXIBLE ENOUGH TO RECOGNIZE THE MORAL DIMENSION OF MAN AND HIS
INSTINCTS CONCERNING THAT WHICH IS HONORABLE, DECENT, AND RIGHT.  /1/ 
/1/  * MY BROTHER DOUGLAS' RENDITION OF CAPTAIN LEVY'S OFFENSE IN
THIS CASE WOULD LEAVE ONE TO BELIEVE THAT LEVY WAS PUNISHED FOR
SPEAKING AGAINST THE VIETNAM WAR AT AN ARMY WIVES' TEA PARTY.  IN FACT,
LEVY WAS CONVICTED UNDER CHARGES THAT HE, WHILE IN THE PERFORMANCE OF
HIS DUTIES AT THE UNITED STATES ARMY HOSPITAL IN FORT JACKSON, SOUTH
CAROLINA, TOLD THE ENLISTED PERSONNEL IN HIS CHARGE THAT HE WOULD NOT
TRAIN SPECIAL FORCES AIDE MAN "BECAUSE THEY ARE 'LIARS AND THIEVES,'
'KILLERS OF PEASANTS,' AND 'MURDERERS OF WOMEN AND CHILDREN.'"  HE ALSO
STATED, IN THE PRESENCE OF PATIENTS AND THOSE PERFORMING DUTY UNDER HIS
IMMEDIATE SUPERVISION, THAT HE WOULD REFUSE TO GO TO VIETNAM IF ORDERED
TO DO SO AND THEY SHOULD REFUSE TO DO SO. MOREOVER, AFTER BEING ORDERED
TO GIVE DERMATOLOGICAL TRAINING TO AIDE MEN, HE ANNOUNCED TO HIS
STUDENTS THAT "(THE HOSPITAL COMMANDER HAS GIVEN ME AN ORDER TO TRAIN
SPECIAL FORCES PERSONNEL, WHICH ORDER I HAVE REFUSED AND WILL NOT
OBEY."  UNLESS ONE IS TO BLIND ONE'S EYES IN UTTER WORSHIP OF THE FIRST
AMENDMENT, IT NEEDS NO EXPLICATION THAT THESE DISLOYAL STATEMENTS AND
ACTIONS UNDERTAKEN BY AN OFFICER IN THE COURSE OF DUTY, ARE SUBJECT TO
SANCTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

CONGRESS BY ART. I, 8, CL. 14, HAS POWER "TO MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES." 

ARTICLES 133 /1/  AND 134 /2/  OF THE CODE OF MILITARY JUSTICE, 10
U.S.C. 933 AND 934, AT ISSUE IN THIS CASE, TRACE THEIR LEGITIMACY TO
THAT POWER. 

SO FAR AS I CAN DISCOVER THE ONLY EXPRESS EXEMPTION OF A PERSON IN
THE ARMED SERVICES FROM THE PROTECTION OF THE BILL OF RIGHTS IS THAT
CONTAINED IN THE FIFTH AMENDMENT WHICH DISPENSES WITH THE NEED FOR "A
PRESENTMENT OR INDISCTMENT" OF A GRAND JURY "IN CASES ARISING IN THE
LAND OR NAVAL FORCES, OR IN THE MILITIA, WHEN IN ACTUAL SERVICE IN TIME
OF WAR OR PUBLIC DANGER." 

BY PRACTICE AND BY CONSTRUCTION THE WORDS "ALL CRIMINAL
PROSECUTIONS" IN THE SIXTH AMENDMENT DO NOT NECESSARILY COVER ALL
MILITARY TRIALS.  ONE RESULT IS THAT THE GUARANTEE OF THE SIXTH
AMENDMENT OF TRIAL "BY AN IMPARTIAL JURY" IS NOT APPLICABLE TO MILITARY
TRIALS.  /3/  BUT JUDGE FERGUSON IN UNITED STATES V. TEMPIA, 16 U.S.C.
M. A 629, 37 C. M. R. 249, PROPERLY SAID:  /4/ 

"(BOTH THE SUPREME COURT AND THIS COURT ITSELF ARE SATISFIED AS TO
THE APPLICABILITY OF CONSTITUTIONAL SAFEGUARDS TO MILITARY TRIALS,
EXCEPT INSOFAR AS THEY ARE MADE INAPPLICABLE EITHER EXPRESSLY OR BY
NECESSARY IMPLICATION.  THE GOVERNMENT, THEREFORE, IS CORRECT IN
CONCEDING THE POINT, AND THE JUDGE ADVOCATE GENERAL, UNITED STATES
NAVY, AS AMICUS CURIAE, IS INCORRECT IN HIS CONTRARY CONCLUSION. 
INDEED, AS TO THE LATTER, IT WOULD APPEAR FROM THE AUTHORITIES ON WHICH
HE RELIES THAT THE MILITARY COURTS APPLIED WHAT WE NOW KNOW AS THE
CONSTITUTIONAL PROTECTION AGAINST SELF-INCRIMINATION IN TRIALS PRIOR TO
AND CONTEMPORANEOUS WITH THE ADOPTION OF THE CONSTITUTION.  HENCE, WE
FIND MAJOR ANDRE BEING EXTENDED THE PRIVILEGE AT THIS COURT-MARTIAL IN
1780.  WIGMORE, EVIDENCE, 3D ED., 2251.  THE SAME REFERENCE WAS MADE IN
THE TRIAL OF COMMODORE JAMES BARRON IN 1808.  PROCEEDINGS OF THE
GENERAL COURT MARTIAL CONVENED FOR THE TRIAL OF COMMODORE JAMES BARRON
(1822), PAGE 98.  AND, THE ARTICLES OF WAR OF 1776, AS AMENDED MAY 31,
1786, PROVIDED FOR OBJECTION BY THE JUDGE ADVOCATE TO ANY QUESTION PUT
TO THE ACCUSED, THE ANSWER TO WHICH MIGHT TEND TO INCRIMINATE HIM.  SEE
WINTHROP'S MILITARY LAW AND PRECEDENTS, 2D ED, 1920 REPRINT, PAGES 196,
972."  16 U.S.C. M. A., AT 634, 37 C. M. R., AT 254. 

BUT THE CASES WE HAVE HAD SO FAR HAVE CONCERNED ONLY THE NATURE OF
THE TRIBUNAL WHICH MAY TRY A PERSON AND/OR THE PROCEDURE TO BE
FOLLOWED.  /5/  THIS IS THE FIRST CASE THAT PRESENTS TO US A QUESTION
OF WHAT PROTECTION, IF ANY, THE FIRST AMENDMENT GIVES PROPLE IN THE
ARMED SERVICES: 

     "CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE FREEDOM OF
SPEECH, OR OF THE PRESS." 

ON ITS FACE THERE ARE NO EXCEPTIONS--NO PREFERRED CLASSES FOR WHOSE
BENEFIT THE FIRST AMENDMENT EXTENDS, NO EXEMPT CLASSES. 

THE MILITARY BY TRADITION AND BY NECESSITY DEMANDS DISCIPLINE; AND
THOSE NECESSITIES REQUIRE OBEDIENCE IN TRAINING AND IN ACTION.  A
COMMAND IS SPEECH BRIGADED WITH ACTION, AND PERMISSIBLE COMMANDS MAY
NOT BE DISOBEYED.  THERE MAY BE A BORDERLAND OR PENUMBRA THAT IN TIME
CAN BE ESTABLISHED BY LITIGATED CASES. 

I CANNOT IMAGINE, HOWEVER, THAT CONGRESS WOULD THINK IT HAD THE POWER
TO AUTHORIZE THE MILITARY TO CURTAIL THE READING LIST OF BOOKS, PLAYS,
POEMS, PERIODICALS, PAPERS, AND THE LIKE WHICH A PERSON IN THE ARMED
SERVICES MAY READ.  NOR CAN I BELIEVE CONGRESS WOULD ASSUME AUTJORITY
TO AUTHORIZE THE MILITARY TO SUPPRESS CONVERSATIONS AT A BAR, BAN
DISCUSSIONS OF PUBLIC AFFAIRS, PREVENT ENLISTED MEN OR WOMEN OR
DRAFTEES FROM MEETING IN DISCUSSION GROUPS AT TIMES AND PLACES AND FOR
SUCH PERIODS OF TIME THAT DO NOT INTERFERE WITH THE PERFORMANCE OF
MILTARY DUTIES. 

CONGRESS HAS TAKEN NO SUCH STEP HERE.  BY ART. 133 IT HAS ALLOWED
PUNISHMENT FOR "CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN."  IN OUR
SOCIETY WHERE DIVERSITIES ARE SUPPOSED TO FLOURISH IT NEVER COULD BE
"UNBECOMING" TO EXPRESS ONE'S VIEWS, EVEN ON THE MOST CONTROVERSIAL
PUBLIC ISSUE. 

ARTICLE 134 COVERS ONLY "ALL DISORDERS AND NEGLECTS TO THE PREJUDICE
OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES, ALL CONDUCT OF A
NATURE TO BRING DISCREDIT UPON THE ARMED FORCES." 

CAPT. LEVY, THE APPELLEE IN THE PRESENT CASE, WAS NOT CONVICTED
UNDER ARTS. 133 AND 134 FOR FAILURE TO GIVE THE REQUIRED MEDICAL
INSTRUCTIONS.  BUT AS HE WALKED THROUGH THE FACILITIES AND DID HIS
WORK, OR MET WITH STUDENTS, HE SPOKE OF HIS VIEWS OF THE "WAR" IN
VIETNAM.  THIS HE SAID: 

"THE UNITED STATES IS WRONG IN BEING INVOLVED IN THE VIET NAM WAR. 
I WOULD REFUSE TO GO TO VIET NAM IF ORDERED TO DO SO.  I DON'T SEE WHY
ANY COLORED SOLDIER WOULD GO TO VIET NAM; THEY SHOULD REFUSE TO GO TO
VIET NAM AND IF SENT SHOULD REFUSE TO FIGHT BECAUSE THEY ARE
DISCRIMINATED AGAINST AND DENIED THEIR FREEDOM IN THE UNITED STATES,
AND THEY ARE SACRIFICED AND DISCRIMINATED AGAINST IN VIET NAM BY BEING
GIVEN ALL THE HAZARDOUS DUTY AND THEY ARE SUFFERING THE MAJORITY OF
CASUALTIES.  IF I WERE A COLORED SOLDIER I WOULD REFUSE TO GO TO
VIETNAM AND IF I WERE A COLORED SOLDIER AND WERE SENT I WOULD REFUSE TO
FIGHT.  SPECIAL FORCES PERSONNEL ARE LIARS AND THIEVES AND KILLERS OF
PEASANTS AND MURDERERS OF WOMEN AND CHILDREN" 

THOSE IDEAS AFFRONTED SOME OF HIS SUPERIORS.  THE MILITARY, OF
COURSE, TENDS TO PRODUCE HOMOGENIZED INDIVIDUALS WHO THINK--AS WELL AS
MARCH--IN UNISON.  IN UNITED STATES V. BLEVENS, 5 U.S.C. M. A. 480, 18
C. M. R. 104, THE COURT OF MILITARY APPEALS UPHELD THE COURT-MARTIAL
CONVICTION OF A SERVICEMAN WHO HAD "AFFILIATED"  HIMSELF WITH A
COMMUNIST ORGANIZATION IN GERMANY.  THE SERVICEMAN ARGUED THAT THERE
WAS NO ALLEGATION THAT HE POSSESSED ANY INTENT TO OVERTHROW THE
GOVERNMENT BY FORCE, SO THAT THE SMITH ACT, 18 U.S.C. 2385, WOULD NOT
REACH HIS CONDUCT.  THE COURT OF MILITARY APPEALS AFFIRMED ON THE
THEORY THAT HIS AFFILIATION, NONTHELESS, BROUGHT "DISCREDIT" ON THE
ARMED FORCES WITHIN THE MEANING OF ART. 134: 

     "MOST IMPORTANT TO THE CASE IS THE GOVERNMENT'S CONTENTION
THAT

  REGARDLESS OF ANY DEFICIENCIES UNDER THE SMITH ACT, THE

  SPECIFICATION PROPERLY ALLEGES, AND THE EVIDENCE ADEQUATELY

  ESTABLISHES, CONDUCT TO THE DISCREDIT OF THE ARMED FORCES, IN

  VIOLATION OF ARTICLE 134. 

        . . . . . 

     "MEMBERSHIP BY SCHOOL TEACHER IN AN ORGANIZATION ADVOCATING
THE

VIOLENT DISESTABLISHMENT OF THE UNITED STATES GOVERNMENT HAS BEEN

  REGARDED AS CONDUCT REQUIRING DISMISSAL.  ADLER V. BOARD OF

  EDUCATION, 342 U. S. 485.  IT SEEMS TO US THAT SUCH MEMBERSHIP IS

  EVEN MORE PROFOUNDLY EVIL IN THE CASE OF A PERSON IN THE MILITARY

  ESTABLISHMENT.  TRUE, AFFILIATION IMPLIES SOMETHING LESS THAN

  MEMBERSHIP (BRIDGES V. WIXON, 326 U. S. 135, 143), BUT THE

  SUPREME DUTY OF THE MILITARY IS THE PROTECTION AND SECURITY OF

  THE GOVERNMENT AND OF THE PEOPLE.  HENCE, ASIDE FROM A SPECIFIC

  INTENT ON THE PART OF THE ACCUSED TO OVERTHROW THE GOVERNMENT BY

  VIOLENCE, THE CONDUCT ALLEGED IS DEFINITELY DISCREDITING TO THE

  ARMED FORCES."  5 U.S.C. M. A., AT 483 - 484, 18 C. M. R., AT 107

  - 108. 

THE LIMITATIONS ON EXPRESSIONS OF OPINION BY MEMBERS OF THE MILITARY
CONTINUE TO DATE.  DURING THE VIETNAM WAR, A SECOND LIEUTENANT IN THE
RESERVES, OFF DUTY, OUT OF UNIFORM, AND OFF BASE NEAR A LOCAL
UNIVERSITY, CARRIED A PLACARD IN AN ANTIWAR DEMONSTRATION WHICH SAID
"END JOHNSON'S FACIST (SIC) AGGRESSION IN VIET NAM."  HE WAS CONVICTED
BY A COURT-MARTIAL UNDER ART. 88 FOR USING "CONTEMPTUOUS WORDS" AGAINST
THE PRESIDENT AND UNDER ART. 133 FOR "CONDUCT UNBECOMING AN OFFICER." 
THE COURT OF MILITARY APPEALS AFFIRMED, THEORIZING THAT SUPPRESSION OF
SUCH SPEECH WAS ESSENTIAL TO PREVENT A MILITARY "MAN ON A WHITE HORSE"
FROM CHALLENGING "CIVILIAN CONTROL OF THE MILITARY."  UNITED STATES V.
HOWE, 17 U.S.C. M. A 165, 175, 37 C. M. R. 429, 439.  THE COURT DID NOT
ATTEMPT TO WEIGH THE LIKELIHOOD THAT HOWE, A RESERVE SECOND LIEUTENANT
ENGAGING IN A SINGLE OFF-BASE EXPRESSION OF OPINION OF THE MOST BURNING
POLITICAL ISSUE OF THE DAY, COULD EVER BE SUCH A "MAN ON A WHITE
HORSE."  INDEED, SUCH CONSIDERATIONS WERE IRRELEVANT: 

   "TRUE, PETITIONER IS A RESERVE OFFICER, RATHER THAN A

 PROFESSIONAL OFFICER, BUT DURING THE TIME HE SERVES ON ACTIVE

  DUTY HE IS, AND MUST BE, CONTROLLED BY THE PROVISIONS OF MILITARY

  LAW.  IN THIS INSTANCE, MILITARY RESTRICTIONS FALL UPON A

  RELUCTANT 'SUMMER SOLDIER'; BUT AT ANOTHER TIME, AND DIFFERING

  CIRCUMSTANCES, THE ANCIENT AND WISE PROVISIONS INSURING CIVILIAN

  CONTROL OF THE MILITARY WILL RESTRICT THE 'MAN ON A WHITE

  HORSE.'"  IBID. 

SEE GENERALLY SHERMAN, THE MILITARY COURTS AND SERVICEMEN'S FIRST
AMENDMENT RIGHTS, 22 HASTINGS L. J. 325 (1971.) 

THE POWER TO DRAFT AN ARMY INCLUDES OF COURSE THE POWER TO CURTAIL
CONSIDERABLY THE "LIBERTY" OF THE PEOPLE WHO MAKE IT UP.  BUT CONGRESS
IN THESE ARTICLES HAS NOT UNDERTAKEN TO CROSS THE FORBIDDEN FIRST
AMENDMENT LINE.  MAKING A SPEECH OR COMMENT ON ONE OF THE MOST
IMPORTANT AND CONTROVERSIAL PUBLIC ISSUES OF THE PAST TWO DECADES
CANNOT BY ANY STRETCH OF DICTIONARY MEANING BE INCLUDED IN "DISORDERS
AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED
FORCES."  NOR CAN WHAT CAPT.  LEVY SAID POSSIBLY BE "CONDUCT OF A
NATURE TO BRING DISCREDIT UPON THE ARMED FORCES."  HE WAS UTTERING HIS
OWN BELIEF--AN ARTICLE OF FAITH THAT HE SINCERELY HELD.  THIS WAS NO
MERE PLOY TO PERFORM A "SUBVERSIVE" ACT.  MANY OTHERS WHO LOVED THEIR
COUNTRY SHARED HIS VIEWS.  THEY WERE NOT SABOTEURS.  UTTERING ONE'S
BELIEFS IS SACROSANCT UNDER THE FIRST AMENDMENT.  /6/  PUNISHING THE
UTTERANCES IS AN "ABRIDGMENT" OF SPEECH IN THE CONSTITUTIONAL SENSE. 

/1/  "ANY COMMISSIONED OFFICER, CADET, OR MIDSHIPMAN WHO IS
CONVICTED OF CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN SHALL BE
PUNISHED AS A COURT-MARTIAL MAY DIRECT." 

/2/  "THOUGH NOT SPECIFICALLY MENTIONED IN THIS CHAPTER, ALL
DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN
THE ARMED FORCES, ALL CONDUCT OF A NATURE TO BEING DISCREDIT UPON THE
ARMED FORCES, AND CRIMES AND OFFENSES NOT CAPITAL, OF WHICH PERSONS
SUBJECT TO THIS CHAPTER MAY BE GUILTY, SHALL BE TAKEN COGNIZANCE OF BY
A GENERAL, SPECIAL, OR SUMMARY COURT-MARTIAL, ACCORDING TO THE NATURE
AND DEGREE OF THE OFFENSE, AND SHALL BE PUNISHED AT THE DISCRETION OF
THAT COURT." 

/3/  O'CALLAHAN V. PARKER, 395 U. S. 258, 262, STATED:  "IF THE CASE
DOES NOT ARISE 'IN THE LAND OR NAVAL FORCES,' THEN THE ACCUSED GETS
FIRST, THE BENEFIT OF AN INDICTMENT BY A GRAND JURY AND SECOND, A TRIAL
BY JURY BEFORE A CIVILIAN COURT AS GUARANTEED BY THE SIXTH AMENDMENT
AND BY ART. III, 2, OF THE CONSTITUTION WHICH PROVIDES IN PART: 

"THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE
BY JURY; AND SUCH TRAIL SHALL BE HELD IN THE STATE WHERE THE SAID
CRIMES SHALL HAVE BEEN COMMITTED; BUT WHEN NOT COMMITTED WITHIN ANY
STATE, THE TRIAL SHALL BE AT SUCH PLACE OR PLACES AS THE CONGRESS MAY
BY LAW HAVE DIRECTED.'" 

/4/  THE COURT OF MILITARY APPEALS HAS HELD THAT THE "PROBABLE
CAUSE"  ASPECT OF THE FOURTH AMENDMENT IS APPLICABLE TO MILITARY
TRIALS.  SEE, E. G., UNITED STATES V. BATTISTA, 14 U.S.C. M. A. 70, 33
C. M. R. 282; UNITED STATES V. GEBHART, 10 U.S.C. M. A. 606, 28 C. M.
R. 172; UNITED STATES V. BROWN, 10 U.S.C. M. A. 482, 28 C. M. R. 48. 

IT HAS BEEN HELD THAT THE RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT
EXTENDS TO MILITARY TRIALS, SEE UNITED STATES V. CULP, 14 U.S.C. M. A.
199, 216 - 217, 219, 33 C. M. R. 411, 428 - 429, 431 (OPINIONS OF
QUINN, C. J., FERGUSON, J.). 

THERE ARE RULINGS ALSO THAT FREEDOM OF SPEECH PROTECTS, TO SOME
EXTENT AT LEAST, THOSE IN THE ARMED SERVICES.  UNITED STATES V WYSONG,
9 U.S.C. M. A. 249, 26 C. M. R. 29, AND SEE UNITED STATES V. GRAY, 20
U.S.C. M. A. 63, 42 C. M. R. 255. 

/5/  SEE, E. G., O'CALLAHAN V. PARKER, 395 U. S. 258; MCELROY V.
UNITED STATES EX REL. GUAGLIARDO, 361 U. S. 281; GRISHAM V. HAGAN, 361
U. S. 278; KINSELLA V. UNITED STATES EX REL. SINGLETON, 361 U. S. 234;
REID V. COVERT, 354 U. S. 1; UNITED STATES EX REL. TOTH V. QUARLES,350
U. S. 11; EX PARTE QUIRIN, 317 U. S. 1. 

/6/  THE WORDS OF MR. JUSTICE HOLMES WRITTEN IN DISSENT IN UNITED
STATES V. SCHWIMMER, 279 U. S. 644, 654 - 655, NEED TO BE RECALLED:
"(THE WHOLE EXAMINATION OF THE APPLICANT SHOWS THAT SHE HOLDS NONE OF
THE NOW-DREADED CREED BUT THOROUGHLY BELIEVES IN ORGANIZED GOVERNMENT
AND PREFERS THAT OF THE UNITED STATES TO ANY OTHER IN THE WORLD. 
SURELY IT CANNOT SHOW LACK OF ATTACHMENT TO THE PRINCIPLES OF THE
CONSTITUTION THAT SHE THINKS THAT IT CAN BE IMPROVED.  I SUPPOSE THAT
MOST INTELLIGENT PEOPLE THINK THAT IT MIGHT BE.  HER PARTICULAR
IMPROVEMENT LOOKING TO THE ABOLITION OF WAR SEEMS TO ME NOT MATERIALLY
DIFFERENT IN ITS BEARING ON THIS CASE FROM A WISH TO ESTABLISH CABINET
GOVERNMENT AS IN ENGLAND, OR A SINGLE HOUSE, OR ONE TERM OF SEVEN YEARS
FOR THE PRESIDENT.  TO TOUCH A MORE BURNING QUESTION, ONLY A JUDGE MAD
WITH PARTISANSHIP WOULD EXCLUDE BECAUSE THE APPLICANT THOUGHT THAT THE
EIGHTEENTH AMENDMENT SHOULD BE REPEALED. 

"OF COURSE THE FEAR IS THAT IF A WAR CAME THE APPLICANT WOULD EXERT
ACTIVITIES SUCH AS WERE DEALT WITH IN SCHENCK V. UNITED STATES, 249 U.
S. 47.  BUT THAT SEEMS TO ME UNFOUNDED.  HER POSITION AND MOTIVES ARE
WHOLLY DIFFERENT FROM THOSE OF SCHNECK.  SHE IS AN OPTIMIST AND STATES
IN STRONG AND, I DO NOT DOUBT, SINCERE WORDS HER BELIEF THAT WAR WILL
DISAPPEAR AND THAT THE IMPENDING DESTINY OF MANKIND IS TO UNITE IN
PEACEFUL LEAGUES.  I DO NOT SHARE THAT OPTIMISM NOR DO I THINK THAT A
PHILOSOPHIC VIEW OF THE WORLD WOULD REGARD WAR AS ABSURD.  BUT MOST
PEOPLE WHO HAVE KNOWN IT REGARD IT WITH HORROR, AS A LAST RESORT, AND
EVEN IF NOT YET READY FOR COSMOPOLITAN EFFORS, WOULD WELCOME ANY
PRACTICABLE COMBINATIONS THAT WOULD INCREASE THE POWER ON THE SIDE OF
PEACE.  THE NOTION THAT THE APPLICANT'S OPTINISTIC ANTICIPATIONS WOULD
MAKE HER A WORSE CITIZEN IS SUFFICIENTLY ANSWERED BY HER EXAMINATION,
WHICH SEEMS TO ME A BETTER ARGUMENT FOR HER ADMISSION THAN ANY THAT I
CAN OFFER.  SOME OF HER ANSWERS MIGHT EXCITE POPULAR PREJUDICE, BUT IF
THERE IS ANY PRINCIPLE OF THE CONSTITUTION THAT MORE IMPERATIVELY CALLS
FOR ATTACHMENT THAN ANY OTHER IT IS THE PRINCIPLE OF FREE THOUGHT--NOT
FREE THOUGHT FOR THOSE WHO AGREE WITH US BUT FREEDOM FOR THE THOUGHT
THAT WE HATE.  I THINK THAT WE SHOULD ADHERE TO THAT PRINCIPLE WITH
REGARD TO ADMISSION INTO, AS WELL AS TO LIFE WITHIN THIS COUNTRY, AND
RECURRING TO THE OPINION THAT BARS THIS APPLICANT'S WAY, I WOULD
SUGGEST THAT THE QUAKERS HAVE DONE THEIR SHARE TO MAKE THE COUNTRY WHAT
IT IS, THAT MANY CITIZENS AGREE WITH THE APPLICANT'S BELIEF AND THAT I
HAD NOT SUPPOSED HITHERTO THAT WE REGRETTED OUR INABILITY TO EXPEL THEM
BECAUSE THEY BELIEVE MORE THAN SOME OF US DO IN THE TEACHINGS OF THE
SERMON ON THE MOUNT." 

THAT DISSENT BY HOLMES BECAME THE LAW WHEN SCHWIMMER, SUPRA, UNITED
STATES V. MACINTOSH, 283 U. S. 605, AND UNITED STATES V. BLAND, 283
U.S. 636, WERE OVERRULED BY GIROUARD V. UNITED STATES, 328 U. S. 61. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

ARTICLE 133 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 933,
MAKES IT A CRIMINAL OFFENSE TO ENGAGE IN "CONDUCT UNBECOMING AN OFFICER
AND A GENTLEMAN."  /1/  ARTICLE 134, 10 U.S.C. 934, MAKES CRIMINAL "ALL
DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN
THE ARMED FORCES."  AND "ALL CONDUCT OF A NATURE TO BRING DISCREDIT
UPON THE ARMED FORCES."  /2/  THE COURT TODAY, REVERSING A UNANIMOUS
JUDGMENT OF THE COURT OF APPEALS, UPHOLDS THE CONSTITUTIONALITY OF
THESE STATUTES.  I FIND IT HARD TO IMAGINE CRIMINAL STATUTES MORE
PATENTLY UNCONSTITUTIONAL THAN THESE VAGUE AND UNCERTAIN GENERAL
ARTICLES, AND I WOULD, ACCORDINGLY, AFFIRM THE JUDGMENT BEFORE US.

        I

AS MANY DECISIONS OF THIS COURT MAKE CLEAR, VAGUE STATUTES SUFFER
FROM AT LEAST TWO FATAL CONSTITUTIONAL DEFECTS.  FIRST, BY FAILING TO
PROVIDE FAIR NOTICE OF PRECISELY WHAT ACTS ARE FORBIDDEN, A VAGUE
STATUTE "VIOLATES THE FIRST ESSENTIAL OF DUE PROCESS OF LAW."  CONNALLY
V. GENERAL CONSTRUCTION CO., 269 U. S. 385, 391.  AS THE COURT PUT THE
MATTER IN LANZETTA V. NEW JERSEY, 306 U.S. 451, 453, "NO ONE MAY BE
REQUIRED AT PERIL OF LIFE, LIBERTY OF PROPERTY TO SPECULATE AS TO THE
MEANING OF PENAL STATUTES.  ALL ARE ENTITLED TO BE INFORMED AS TO WHAT
THE STATE COMMANDS OR FORBIDS."  "WORDS WHICH ARE VAGUE AND FLUID . . .
MAY BE AS MUCH OF A TRAP FOR THE INNOCENT AS THE ANCIENT LAWS OF
CALIGULA."  UNITED STATES V. CARDIFF, 344 U. S. 174, 176.  /3/ 

SECONDLY, VAGUE STATUTES OFFEND DUE PROCESS BY FAILING TO PROVIDE
EXPLICIT STANDARDS FOR THOSE WHO ENFORCE THEM THUS ALLOWING
DISCRIMINATORY AND ARBITRARY ENFORCEMENT.  PAPACHRISTOU V. CITY OF
JACKSONVILLE, 405 U.S. 156, 165 - 171.  "A VAGUE LAW IMPERMISSIBLY
DELEGATES BASIC POLICY MATTERS TO POLICEMEN, JUDGES, AND JURIES FOR
RESOLUTION ON AN AD HOC AND SUBJECTIVE BASIS . . . ."  GRAYNED V. CITY
OF ROCKFORD, 408 U. S. 104, 108 - 109.  /4/  THE ABSENCE OF SPECIFICITY
IN A CRIMINAL STATUTE INVITES ABUSE ON THE PART OF PROSECUTING
OFFICIALS, WHO ARE LEFT FREE TO HARASS ANY INDIVIDUALS OR GROUPS WHO
MAY BE THE OBJECT OFFICIAL DISPLEASURE.  /5/ 

IT IS PLAIN THAT ARTS. 133 AND 134 ARE VAGUE ON THEIR FACE; INDEED,
THE OPINION OF THE COURT DOES NOT SERIOUSLY CONTEND TO THE CONTRARY. 
/6/  MEN OF COMMON INTELLIGENCE--INCLUDING JUDGES OF BOTH MILITARY AND
CIVIL COURTS--MUST NECESSARILY SPECULATE AS TO WHAT SUCH TERMS AS
"CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN" AND "CONDUCT OF A
NATURE TO BRING DISCREDIT UPON THE ARMED FORCES" REALLY MEAN.  IN THE
PAST, THIS COURT HAS HELD UNCONSTITUTIONAL STATUTES PENSALIZING
"MISCONDUCT,"  /7/  CONDUCT THAT WAS "ANNOYING,"  /8/  "REPREHENSIBLE,"
/9/  OR PREJUDICIAL TO THE BEST INTERESTS" OF A CITY, /10/  AND IT IS
SIGNIFICANT THAT MILITARY COURTS HAVE RESORTED TO SERVERAL OF THESE
VERY TERMS IN DESCRIBING THE SORT OF ACTS PROSCRIBED BY ARTS. 133 AND
134.  /11/ 

FACIALLY VAGUE STATUTES MAY, OF COURSE, BE SAVED FROM
UNCONSTITUTIONALITY BE NARROWING JUDICIAL CONSTRUCTION.  BUT I CANNOT
CONCLUDE, AS DOES THE COURT, ANTE, AT 752 - 755, THAT THE FACIAL
VAGUENESS OF THE GENERAL ARTICLES HAS BEEN CURED BY THE RELEVANT
OPINIONS OF EITHER THE COURT OF MILITARY APPEALS OR ANY OTHER MILITARY
TRIBUNAL.  IN ATTEMPTING TO GIVE MEANING TO THE AMORPHOUS WORDS OF THE
STATUTES, THE COURT OF MILITARY APPEALS HAS REPEATEDLY TURNED TO
WINTHROP'S MILITARY LAW AND PROCEDENTS, AN 1886 TREATISE.  THAT WORK
DESCRIBES "CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN" IN THE
FOLLOWING MANNER: 

"TO CONSTITUTE THEREFORE THE CONDUCT HERE DENOUNCED, THE ACT WHICH
FORMS THE BASIS OF THE CHARGE MUST HAVE A DOUBLE SIGNIFICANCE AND
EFFECT.  THOUGH IT NEED NOT AMOUNT TO A CRIME, IT MUST OFFEND SO
SERIOUSLY AGAINST LAW, JUSTICE, MORALITY OR DECORUM AS TO EXPOSE TO
DISGRACE, SOCIALLY OR AS A MAN, THE OFFENDER, AND AT THE SAME TIME MUST
BE OF SUCH A NATURE OR COMMITTED UNDER SUCH CIRCUMSTANCES AS TO BRING
DISHONOR OR DISREPUTE UPON THE MILITARY PROFESSION WHICH HE
REPRESENTS."  /12/ AS TO THE PREDECESSOR STATUTE OF ART. 134, COL.
WINTHROP READ IT AS APPLICABLE TO CONDUCT WHOSE PREJUDICE TO GOOD ORDER
AND DISCIPLINE WAS "REASONABLY DIRECT AND PALPABLE," AS OPPOSED TO THAT
CONDUCT WHICH IS SIMPLY "INDIRECTLY OR REMOTELY" PREJUDICIAL--WHATEVER
THAT MAY MEAN.  /13/  THESE PASSAGES, AND THE DECISIONS OF THE COURT OF
MILITARY APPEALS THAT ADOPT THEM VERBATIM, SCARCELY ADD ANY SUBSTANTIVE
CONTENT TO THE LANGUAGE OF THE GENERAL ARTICLES.  AT BEST, THE LIMITING
CONSTRUCTIONS REFERRED TO BY THE COURT REPRESENT A VALIANT BUT
UNAVAILING EFFORT TO READ SOME SPECIFICITY INTO HOPELESSLY VAGUE LAWS. 
WINTHROP'S DEFINITIONS MAY BE SLIGHTLY DIFFERENT IN WORDING FROM ARTS.
133 AND 134, BUT THEY ARE NOT DIFFERENT IN KIND, FOR THEY SUFFER FROM
THE SAME VAGUENESS AS THE STATUTES TO WHICH THEY REFER. 

IF THERE BE ANY DOUBT AS TO THE ABSENCE OF TRULY LIMITING
CONSTRUCTIONS OF THE GENERAL ARTICLES, IT IS SWIFTLY DISPELLED BY EVEN
THE MOST CURSORY REVIEW OF CONVICTIONS UNDER THEM IN THE MILITARY
COURTS.  ARTICLE 133 HAS BEEN RECENTLY EMPLOYED TO PUNISH SUCH WIDELY
DISPARATE CONDUCT AS DISHONORABLE FAILURE TO REPAY DEBTS, /14/  SELLING
WHISKEY AT AN UNCONSCIONABLE PRICE TO AN ENLISTED MAN, /15/  CHEATING
AT CARDS, 16/  AND HAVING AN EXTRAMARITAL AFFAIR.  /17/  ARTICLE 134
HAS BEEN GIVEN AN EVEN WIDER SWEEP, HAVING BEEN APPLIED TO SEXUAL ACTS
WITH A CHICKEN, /18/  WINDOW PEEPING IN A TRAILER PARK, /19/  AND
CHEATING WHILE CALLING BINGO NUMBERS.  /20/  CONVICTIONS SUCH AS THESE
LEAVE LITTLE DOUBT THAT "(AN INFINITE VARIETY OF OTHER CONDUCT, LIMITED
ONLY BY THE SCOPE OF A COMMANDER'S CREATIVITY OR SPLEEN, CAN BE MADE
THE SUBJECT OF COURT-MARTIAL UNDER THESE ARTICLES."  SHERMAN, THE
CIVILIANIZATION OF MILITARY LAW, 22 MAINE L. REV. 3, 80. 

IN SHORT, THE GENERAL ARTICLES ARE IN PRACTICE AS WELL AS THEORY
"CATCH-ALL," DESIGNED TO ALLOW PROSECUTIONS FOR PRACTICALLY ANY CONDUCT
THAT MAY OFFEND THE SENSIBILITIES OF A MILITARY COMMANDER.  /21/  NOT
EVERY PROSECUTION OF COURSE, RESULTS IN A CONVICTION, AND THE MILITARY
COURTS HAVE SOMETIMES OVERTURNED CONVICTIONS WHEN THE CONDUCT INVOLVED
WAS SO MARGINALLY RELATED TO MILITARY DISCIPLINE AS TO OFFEND EVENT THE
LOOSEST INTERPRETATIONS OF THE GENERAL ARTICLES.  /22/  BUT THESE
CIRCUMSTANCES CAN HARDLY BE THOUGHT TO VALIDATE THE OTHER WISE VAGUE
STATUTES.  AS THE COURT SAID IN UNITED STATES V. REESE, 92 U. S. 214,
221:  "IT WOULD CERTAINLY BE DANGEROUS IF THE LEGISLATURE COULD SET A
NET LARGE ENOUGH TO CATCH ALL POSSIBLE OFFENDERS, AND LEAVE IT TO THE
COURTS TO STEP INSIDE AND SAY WHO COULD BE RIGHTFULLY DETAINED, AND WHO
SHOULD BE SET AT LARGE."  AS BEST, THE GENERAL ARTICLES ARE JUST SUCH A
NET, AND SUFFER FROM ALL THE VICES THAT OUR PREVIOUS DECISIONS
CONDEMN. 

        II 

PERHAPS IN RECOGNITION OF THE ESSENTIAL VAGUENESS OF THE GENERAL
ARTICLES, THE COURT TODAY ADOPTS SEVERAL RATHER PERIPHRASTIC APPROACHES
TO THE PROBLEM BEFORE US.  WHATEVER THE APPARENT VAGUENESS OF THESE
STATUTES TO US CIVILIANS, WE ARE TOLD, THEY ARE MODELS OF CLARITY TO
"'PRACTICAL MEN IN THE NAVY AND ARMY.'"  ANTE, AT 747, QUOTING FROM
DYES V. HOOVER, 20 HOW.  65, 82.  MOREOVER, THE COURT SAYS, THE
APPELLEE SHOULD HAVE BEEN WELL AWARE THAT HIS CONDUCT FELL WITHIN THE
PROSCRIPTIONS OF THE GENERAL ARTICLES, SINCE THE MANUAL FOR COURTS
MARTIAL GIVES SPECIFIC CONTENT TO THESE FACIALLY UNCERTAIN STATUTES.  I
BLIEVE THAT NEITHER OF THESE PROPOSITIONS CAN WITHSTAND ANALYSIS. 

        A 

IT IS TRUE, OF COURSE, THAT A LINE OF PRIOR DECISIONS OF THIS COURT,
BEGINNING WITH DYNES V. HOOVER, SUPRA, IN 1858 AND CONCLUDING WITH
CARTER V. MCCLAUGHRY, 183 U. S. 365, IN 1902, HAVE UPHELD AGAINST
CONSTITUTIONAL ATTACK THE ANCESTORS OF TODAY'S GENERAL ARICLES.  /23/
WITH ALL RESPECT FOR THE PRINCIPLE OF STARE DECISIS, HOWEVER, I BELIEVE
THAT THESE DECISIONS SHOULD BE GIVEN NO AUTHORITATIVE FORCE IN VIEW OF
WHAT IS MANIFESTLY A VASTLY "ALTERED HISTORIC ENVIRONMENT."  MITCHELL
V. W. T. GRANT CO., 416 U. S. 600, 634 - 635 (DISSENTING OPINION).  SEE
ALSO ID., AT 627 - 628 (POWELL, J., CONCURRING). 

IT MIGHT WELL HAVE BEEN TRUE IN 1858 OR EVEN 1902 THAT THOSE IN THE
ARMED SERVICES KNEW, THROUGH A COMBINATION OF MILITARY CUSTOM AND
INSTINCT, WHAT SORTS OF ACTS FELL WITHIN THE PURVIEW OF THE GENERAL
ARTICLES.  BUT TIMES HAVE SURELY CHANGED.  THROUGHOUT MUCH OF THIS
COUNTRY'S EARLY HISTORY, THE STANDING ARMY AND NAVY NUMBERED IN THE
HUNDREDS.  THE CADRE WAS SMALL, PROFESSIONAL, AND VOLUNTARY.  THE
MILITARY WAS A UNIQUE SOCIETY, ISOLATED FROM THE MAINSTREAM OF CIVILIAN
LIFE, AND IT IS AT LEAST PLAUSIBLE TO SUPPOSE THAT THE VOLUNTEER IN
THAT ERA UNDERSTOOD WHAT CONDUCT WAS PROHIBITED BY THE GENERL
ARTICLES.  /24/ 

IT IS OBVIOUS THAT THE ARMY INTO WHICH DR. LEVY ENTERED WAS FAR
DIFFERENT.  IT WAS PART OF A MILITARY ESTABLISHMENT WHOSE MEMBERS
NUMBERED IN THE MILLIONS, A LARGE PERCENTAGE OF WHOM WERE CONCRIPTS OR
DRAFTINDUCED VOLUNTEERS, WITH NO PRIOR MILITARY EXPERIENCE AND LITTLE
EXPECTATION OF REMAINING BEYOND THEIR INITIAL PERIOD OF OBLIGATION. 
/25/  LEVY EAS PRECISELY SUCH AN INDIVIDUAL, A DRAFT-INDUCED VOLUNTEER
WHOSE MILITARY INDOCTRINATION WAS MINIMAL, AT BEST.  /26/  TO PRESUME
THAT HE AND OTHERS LIKE HIM WHO SERVED DURING THE VIETNAM ERA WERE SO
IMBUED WITH THE ANCIENT TRADITIONS OF THE MILITARY AS TO COMPREHEND THE
ARCANE MEANING OF THE GENERAL ARTICLES IS TO ENGAGE IN AN ACT OF
JUDICIAL FANTASY.  /27/  IN MY VIEW, WE DO A GRAVE DISSERVICE TO
CITIZEN SOLDIERS IN SUBJECTING THEM TO THE UNCERTAIN REGIME OF ARTS.
133 AND 134 SIMPLY BECAUSE THESE PROVISIONS DID NOT OFFEND THE
SENSIBILITIES OF THE FEDERAL JUDICIARY IN A WHOLLY DIFFERENT PERIOD OF
OUR HISTORY.  IN TODAY'S VASTLY "ALTERED HISTORIC ENVIRONMENT,"  THE
DYNES CASE AND ITS PROGENY HAVE BECOME CONSTITUTIONAL ANACHRONISMS, AND
I WOULD RETIRE THEM FROM ACTIVE SERVICE. 

B 

THE COURT SUGGESTS THAT THE MANUAL FOR COURTS-MARTIAL PROVIDES SOME
NOTICE OF WHAT IS PROSCRIBED BY THE GENERAL ARTICLES, THROUGH ITS
APPENDIX CONTAINING "FORMS FOR CHARGES AND SPECIFICATIONS."  /28/
THESE SPECIMEN CHARGES, WHICH CONSIST OF "FILL-IN-THE-BLANK"
ACCUSATIONS COVERING VARIOUS FACT SITUATIONS, DO OFFER SOME INDICATION
OF WHAT CONDUCT THE DRAFTERS OF THE MANUAL PERCEIVED TO FALL WITHIN THE
PROHIBITIONS OF ARTS. 133 AND 134.  THERE ARE SERVERAL REASONS,
HOWEVER, WHY THE FORM SPECIFICATIONS CANNOT PROVIDE THE SORT OF
DEFINITIVE INTERPRETATION OF THE GENERAL ARTICLES NECESSARY TO SAVE
THESE STATUTES FROM UNCONSTITUTIONALITY. 

FOR ONE THING, THE SPECIFICATIONS COVERING ARTS. 133 AND 134 ARE NOT
EXCLUSIVE; THE MILITARY COURTS HAVE REPEATEDLY HELD CONDUCT NOT LISTED
IN THE MANUAL'S APPENDIX AS NONTHELESS VIOLATIVE OF THE GENERAL
ARTICLES.  /29/  NOR CAN IT BE SAID THAT THE SPECIFICATIONS CONTAIN ANY
COMMON THREAD OR UNIFYING THEME THAT GIVES GENERIC DEFINITION TO THE
ARTICLES' VAGUE WORDS; THE SPECIMEN CHARGES IN THE MANUAL LIST SUCH
WIDELY DISPARATE CONDUCT AS KICKING A PUBLIC HORSE IN THE BELLY, /30/
SUBORNATION OF PERJURY, /31/  AND WRONGFUL COHABITATION /32/  AS
VIOLATIVE OF ART. 134.  /33/  MOREOVER, THE LIST OF OFFENSES INCLUDED
IN THE APPENDIX IS EVER-EXPANDING; THE 1951 MANUAL CONTAINED 59 ART.
134 OFFENSES, /34/  WHILE THE LIST HAD INCREASED TO 63 IN 1969.  /35/
IN VIEW OF THE NONEXCLUSIVE AND TRANSIENT CHARACTER OF THE
SPECIFICATION LIST, A SERVICEMAN WISHING TO CONFORM HIS CONDUCT TO THE
REQUIREMENTS OF THE LAW WOULD SIMPLY FIND DEFINITIVE GUIDANCE FROM THE
MANUAL IMPOSSIBLE.     MORE SIGNIFICANTLY, THE FACT THAT CERTAIN
CONDUCT IS LISTED IN THE MANUAL IS NO GUARANTEE THAT IT IS IN VIOLATION
OF THE GENERAL ARTICLES.  THE COURT OF MILITARY APPEALS HAS REPEATEDLY
EMPHASIZED THAT THE SAMPLE SPECIFICATIONS ARE ONLY PROCEDURAL GUIDES
AND TIMESAVERS FOR MILITARY POSECUTORS BESET BY POOR RESEARCH
FACILITIES, AND ARE NOT INTENDED TO CREATE OFFENSES UNDER THE GENERAL
ARTICLES.  /36/  CONSEQUENTLY, THE COURT HAS ON SEVERAL OCCASIONS
DISAPPROVED ART. 134 CONVICTIONS, DESPITE THE FACT THAT THE PRECISE
CONDUCT AT ISSUE WAS LISTED IN THE FORM SPECIFICATIONS AS FALLING UNDER
THAT ARTICLE.  /37/ 

DESPITE ALL THIS, THE COURT INDICATES THAT LEVY SHOULD HAVE BEEN
AWARE THAT HIS CONDUCT WAS VIOLATIVE OF ART. 134, SINCE ONE OF THE
SPECIMEN CHARGES RELATES TO THE MAKING OF STATEMENTS "DISLOYAL TO THE
UNITED STATES."  /38/  THAT SPECIFICATION, AND THE BRIEF REFERENCE TO
SUCH CONDUCT IN THE TEXT OF THE MANUAL, /39/  IS ITSELF SO VAGUE AND
OVERBROAD AS TO HAVE BEEN DECLARED UNCONSTITUTIONAL BY ONE FEDERAL
COURT.  STOLTE V. LAIRD, 353 F. SUPP. 1392 (DC).  BUT EVEN IF A
CONSENSUS AS TO THE MEANING OF THE WORD "DISLOYAL" WERE READILY
ATTAINABLE, I AM LESS THAN CONFIDENT THAT DR. LEVY'S ATTACKS UPON OUR
VIETNAM POLICIES COULD BE ACCURATELY CHARACTERIZED BY SUCH AN
ADJECTIVE.  HOWEVER FOREIGN TO THE MILITARY ATMOSPHERE OF FORT JACKSON,
THE WORDS SPOKEN BY HIM REPRESENTED A VIEWPOINT SHARED BY MANY AMERICAN
CITIZENS.  WHATEVER THE ACCURACY OF THESE VIEWS, I WOULD BE LOATH TO
IMPUTE "DISLOYALTY" TO THOSE WHO HONESTLY HELD THEM.  IN SHORT, I THINK
IT IS CLEAR THAT THE FORM SPECIFICATION CONCERNING DISLOYAL STATEMENTS
CANNOT BE SAID TO HAVE GIVEN LEVY NOTICE OF THE ILLEGALITY OF HIS
CONDUCT.  THE SPECIMEN CHARGE IS NO BETTER THAN THE ARTICLE THAT
SPAWNED IT.  IT MERELY SUBSTITUTES ONE SET OF SUBJECTIVE AND AMORPHOUS
PHRASEOLOGY FOR ANOTHER.  /40/

III 

WHAT HAS BEEN SAID ABOVE INDICATES MY VIEW THAT THE GENERAL ARTICLES
ARE UNCONSTITUTIONALLY VAGUE UNDER THE STANDARDS NORMALLY AND
REPEATEDLY APPLIED BY THIS COURT.  THE REMAINING QUESTION IS WHETHER,
AS THE COURT CONCLUDES, ANTE, AT 756, THE PECULIAR SITUATION OF THE
MILITARY RELAXED THAN THAT EMBODIED IN OUR PRIOR DECISIONS. 

IT IS OF COURSE COMMON GROUND THAT THE MILITARY IS A "SPECIALIZED
COMMUNITY GOVERNED BY A SEPARATE DISCIPLINE FROM THAT OF THE
CIVILIAN."  ORLOFF V. WILLOUGHBY, 345 U. S. 83, 94.  A NUMBER OF
SERVICEMAN'S INDIVIDUAL RIGHTS MUST NECESSARILY BE SUBORDINATED TO THE
OVERRIDING MILITARY MISSION, AND I HAVE NO DOUBT THAT THE MILITARY MAY
CONSTITUTIONALLY PROHIBIT CONDUCT THAT IS QUITE PERMISSIBLE IN CIVILIAN
LIFE, SUCH AS QUESTIONING THE COMMAND OF A SUPERIOR.  BUT THIS ONLY
BEGINS THE INQUIRY.  THE QUESTION BEFORE US IS NOT WHETHER THE MILITARY
MAY ADOPT SUBSTANTIVE RULES DIFFERENT FROM THOSE THAT GOVERN CIVILIAN
SOCIETY, BUT WHETHER THE SERVICEMAN HAS THE SAME RIGHT AS HIS CIVILIAN
COUNTERPART TO BE INFORMED AS TO PRECISLY WHAT CONDUCT THOSE RULES
PROSCRIBE BEFORE HE CAN BE CRIMINALLY PUNISHED FOR VIOLATING THEM. 
MORE SPECIFICALLY, THE ISSUE IS WHETHER THE VAGUENESS OF THE GENERAL
ARTICLES IS REQUIRED TO SERVE A GENUINE MILITARY OBJECTIVE. 

THE SOLICITOR GENERAL SUGGESTS THAT A CERTAIN AMOUNT OF VAGUENESS IN
THE GENERAL ARTICLES IS NECESSARY IN ORDER TO MAINTAIN HIGH STANDARDS
OF CONDUCT IN THE MILITARY, SINCE IT IS IMPOSSIBLE TO PREDICT IN
ADVANCE EVERY OFFENSE THAT MIGHT SERVE TO AFFECT MORALE OR DISCREDIT
THE SERVICE.  IT SEEMS TO ME THAT THIS ARGUMENT WAS CONCISELY AND
ELOQUENTLY REBUTTED BY JUDGE ALDISERT IN THE COURT OF APPEALS, 478 F.2D
772, 795 (CA3): 

"(WHAT HIGH STANDARD OF CONDUCT IS SERVED BY CONVICTING AN
INDIVIDUAL OF CONDUCT HE DID NOT REASONABLY PERCEIVE TO BE CRIMINAL? 
IS NOT THE ESSENCE OF HIGH STANDARDS IN THE MILITARY, FIRST, KNOWING
ONE'S DUTY, AND SECONDLY, EXECUTING IT?  AND, IN THIS REGARD, WOULD NOT
AN EVEN HIGHER STANDARD BE SERVED BY DELINEATION OF THE VARIOUS
OFFENSES UNDER ARTICLE 134, FOLLOWED BY OBEDIENCE TO THESE STANDARDS?" 

IT MAY BE THAT MILITARY NECESSITY JUSTIFIES THE PROMULGATION OF
SUBSTANTIVE RULES OF LAW THAT ARE WHOLLY FORIGN TO CIVILIAN LIFE, BUT I
FAIL TO PERCEIVE HOW ANY LEGITIMATE MILITARY GOAL IS SERVED BY
ENSHROUDING THESE RULES IN LANGUAGE SO VAGUE AND UNCERTAIN AS TO BE
INCOMPREHENSIBLE TO THE SERVICEMEN WHO ARE TO BE GOVERNED BY THEM. 
/41/  INDEED, I SHOULD SUPPOSE THAT VAGUE LAWS, WITH THEIR SERIOUS
CAPACITY FOR ARBITRARY AND DISCRIMINATORY ENFORCEMENT, CAN IN THE END
ONLY HAMPER THE MILITARY'S OBJECTIVES OF HIGH MORALE AND ESPRIT DE
CORPS. 

IN SHORT, I THINK NO CASE HAS BEEN MADE FOR FINDING THAT THERE IS
ANY LEGITIMATE MILITARY NECESSITY FOR PERPETUATION OF THE VAGUE AND
AMORPHOUS GENERAL ARTICLES.  IN THIS REGARD, I AM NOT ALONE.  NO LESS
AN AUTHORITY THAN KENNETH J. HODSON, FORMER JUDGE ADVOCATE GENERAL OF
THE ARMY AND CHIEF JUDGE OF THE ARMY COURT OF MILITARY REVIEW, HAS
RECOMMENDED THE ABOLITION OF ART. 134 BECAUSE "(WE DON'T REALLY NEED
IT, AND WE CAN'T DEFEND OUR USE OF IT IN THIS MODERN WORLD."  HODSON,
THE MANUAL FOR COURTS-MARTIAL--1984, 57 MILITARY L REV. 1, 12.  /42/
NO DIFFERENT CONCLUSION CAN BE REACHED AS TO ART. 133.  BOTH ARE
ANACHROMISMS, WHOSE LEGITIMATE MILITARY USEFULNESS, IF ANY, HAS LONG
SINCE DISAPPEARED. 

IT IS PERHAPS APPROPRIATE TO ADD A FINAL WORD.  I DO NOT FOR ONE
MOMENT DENIGRATE THE IMPORTANCE OF OUR INHERITED TRADITION THAT THE
COMMISSIONED OFFICERS OF OUR MILITARY FORCES ARE EXPECTED TO BE MEN OF
HONOR, NOR DO I DOUBT THE NECESSITY THAT SERVICE MEN GENERALLY MUST BE
ORDERLY AND DUTIFUL.  AN EFFICIENT AND EFFECTIVE MILITARY ORGANIZATION
DEPENDS IN LARGE PART UPON THE CHARACTER AND QUALITY OF ITS PERSONNEL,
PARTICULARLY ITS LEADERSHIP.  THE INTERNAL LOYALTY AND MUTUAL RELIANCE
INDISPENSABLE TO THE ULTIMATE EFFECTIVENESS OF ANY MILITARY
ORGANIZATION CAN EXIST ONLY AMONG PEOPLE WHO CAN BE COUNTED ON TO DO
THEIR DUTY.  IT IS, THEREFORE, NOT ONLY LIGITIMATE BUT ESSENTIAL THAT
IN MATTERS OF PROMATION, RETENTION, DUTY ASSIGNMENT AND INTERNAL
DISCIPLINE, EVALUATIONS MUST REPEATEDLY BE MADE OF A SERVICEMEN'S BASIC
CHARACTER AS RELFECTED IN HIS DEPORTMENT, WHETHER HE BE AN ENLISTED MAN
OR A COMMISSIONED OFFICER.  BUT WE DEAL HERE WITH CRIMINAL STATUTES. 
AND I CANNOT BELIEVE THAT SUCH MEANINGLESS STATUTES AS THESE CAN BE
USED TO SEND MEN TO PRISON UNDER A CONSTITUTION THAT GUARANTEES DUE
PROCESS OF LAW. 

/1/  ARTICLE 133 PROVIDES: 

"ANY COMMISSIONED OFFICER, CADET, OR MIDSHIPMAN WHO IS CONVICTED OF
CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN SHALL BE PUNISHED AS A
COURT/MARTIAL MAY DIRECT." 

/2/  ARTICLE 134 PROVIDES: 

"THOUGH NOT SPECIFICALLY MENTIONED IN THIS CHAPTER, ALL DISORDERS
AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED
FORCES, ALL CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE ARMED
FORCES, AND CRIMES AND OFFENSES NOT CAPITAL, OF WHICH PERSONS SUBJECT
TO THIS CHAPTER MAY BE GUILTY, SHALL BE TAKEN COGNIZANCE OF BY A
GENERAL, SPECIAL, OR SUMMARY COURT-MARTIAL, ACCORDING TO THE NATURE AND
DEGREE OF THE OFFENSE, AND SHALL BE PUNISHED AT THE DISCRETION OF THAT
COURT." 

THE CLAUSE IN ART. 134 PROHIBITING ALL "CRIMES AND OFFENSES NOT
CAPITAL" APPLIES ONLY TO CRIMES AND OFFENSES PROSCRIBED BY CONGRESS. 
SEE MANUAL FOR COURTS-MARTIAL 213 (E) (1969) (HEREINAFTER SOME-TIMES
REFERRED TO AS MANUAL).  CF GRAFTON V. UNITED STATES, 206 U. S. 333. 
AS SUCH, THIS CLAUSE IS SIMPLY ASSIMILATIVE, LIKE 18 U.S.C. 13, AND IS
NOT THE SUBJECT OF THE VAGUENESS ATTACK MOUNTED BY APPELLEE ON THE
BALANCE OF ART. 134.  SEE GENERALLY WIENER, ARE THE GENERAL MILITARY
ARTICLES UNCONSTITUTIONALLY VAGUE?  A. B. A. J. 357, 358; NOTE, TAPS
FOR THE REAL CATCH-22, 81 YALE L. J. 1518 N. 3. 

WHILE ONLY ART. 134 IS EXPRESSLY TERMED THE "GENERAL ARTICLE,"
ARTS.  133 AND 134 ARE COMMONLY KNOWN AS THE "GENERAL ARTICLES" AND
WILL BE REFERRED TO HEREIN. 

/3/  SEE ALSO UNITED STATES V. HARRISS, 347 U.S. 612, 617: 

"THE CONSTITUTIONAL REQUIREMENT OF DEFINITENESS IS VIOLATED BY A
CRIMINAL STATUTE THAT FAILS TO GIVE A PERSON OF ORDINARY INTELLIGENCE
FAIR NOTICE THAT HIS CONTEMPLATED CONDUCT IS FORBIDDEN BY THE STATUTE. 
THE UNDERLYING PRINCIPLE IS THAT NO MAN SHALL BE HELD CRIMINALLY
RESPONSIBLE FOR CONDUCT WHICH HE COULD NOT REASONABLY UNDERSTAND TO BE
PROSCRIBIED." 

/4/  SEE ALSO SMITH V. GOGUWN, 415 U. S. 566, 575:  "STATUTORY
LANGUAGE OF SUCH A STANDARDLESS SWEEP ALLOWS POLICEMEN, PROSECUTORS,
AND JURIES TO PURSUE THEIR PERSONAL PREDILECTIONS.  LEGISLATURES MAY
NOT SO ABDICATE THEIR RESPONSIBILITIES FOR SETTING THE STANDARDS OF THE
CRIMINAL LAW." 

/5/  THIS COURT HAS REPEATEDLY RECOGNIZED THAT THE DANGERS INHERENT
IN VAGUE STATUTES ARE MAGNIFIED WHERE LAWS TOUCH UPON FIRST AMENDMENT
FREEDOMS.  SEE, E. G., ID., AT 573; GRAYNED V. CITY OF ROCKFORD, 408 U.
S. 104, 109.  IN SUCH AREAS, MORE PRECISE STATUTORY SPECIFICITY IS
REQUIRED, LEST CAUTIOUS CITIZENS STEER CLEAR OF PROTECTED CONDUCT IN
ORDER TO BE CERTAIN OF NOT VIOLATING THE LAW.  SEE GENERALLY NOTE, THE
VOID-FOR-VAGUENESS DOCTRINE IN THE SUPREME COURT, 109 U. PA. L. REV.
67, 75 - 85. 

/6/  EVEN ONE OF THE STAUNCHEST DEFENDERS OF THE GENERAL ARTICLES
HAS RECOGNIZED THAT: 

"IT CANNOT BE DEIED THAT THERE IS LANGUAGE IN THE VOID-FOR-VAGUENESS
CASES BROAD ENOUGH TO CONDEMN AS UNDULY INDEFINITE THE PROHIBITION IN
ARTICLES 133 AGAINST 'CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN'
AND THE PROHIBITIONS IN ARTICLE 134 AGAINST 'ALL DISORDERS AND NEGLECTS
TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES' AND
AGAINST 'ALL CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE ARMED
FORCES.'"  WIENER, SUPRA, N. 2, AT 363. 

/7/  GIACCIO V. PENNSULVANIA, 382 U. S. 399. 

/8/  COATES V. CINCINNATI, 402 U. S. 611. 

/9/  GIACCIO V. PENNSYLVANIA, SUPRA. 

/10/  GELLING V. TEXAS, 343 U. S. 960.  OTHER FEDERAL COURTS HAVE
SIMILARLY HELD UNCONSTITUTIONAL STATUTES CONTAINING LANGUAGE SUCH AS
"REFLECTS) DISCREDIT," FLYNN V. GIARRUSSO, 321 F. SUPP. 1295 (ED LA.);
"OFFENSIVE," PRITIKIN V. THURMAN, 311 F. SUPP. 1400 (SD FLA.); AND
"IMMORAL" OR DEMORALIZING," OESTREICH V. HALE, 321 F. SUPP. 455 (ED
WIS.). 

/11/  SEE, E. G., UNITED STATED V. LEE, 4 C. M. R. 185, 191 (ABR),
PETITION FOR REVIEW DENIED, U.S.C. M. A. 713, 4 C. M. R. 173
("REPREHENSIBLE CONDUCT"); UNITED STATES V. RIO POON, 26 C. M. R. 830
833 (CGBR) ("UNIVERSALLY REPREHENDED").  SEE ALSO NOTE, TAPS FOR THE
REAL CATCH-22, 81 YALE L. J. 1518, 1522. 

/12/  W. WINTHROP, MILITARY LAW AND PRECEDENTS 711 - 712 (2D.  ED.
1920).  THE CITED LANGUAGE IS QUOTED IN UNITED STATES V. HOWE, 17
U.S.C. M. A. 165, 177 - 178, 37 C. M. R. 429, 441 - 442, AND IN UNITED
STATES V. GIORDANO, 15 U.S.C. M. A. 163, 168, 35 C. M. R. 135, 140. 

SUCH AUTHORITATIVE PUBLICATIONS AS THE OFFICER'S GUIDE DO LITTLE
BETTER IN DEFINING "CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN": 

"THERE ARE CERTAIN MORAL ATTRIBUTES WHICH BELONG TO THE IDEAL
OFFICER AND THE GENTLEMAN, A LACK OF WHICH IS INDICATED BY ACTS OF
DISHONESTY OR UNFAIR DEALING, OF INDECENCY OR INDECORUM, OR OF
LAWLESSNESS, INJUSTICE, OR CRUELTY.  NOT EVERY ONE CAN BE EXPECTED TO
MEET IDEAL STANDARDS OR TO POSSESS THE ATTRIBUTES IN THE EXACT DEGREE
DEMANDED BY THE STANDARDS OF HIS OWN TIME; BUT THERE IS A LIMIT OF
TOLERANCE BELOW WHICH THE INDIVIDUAL STANDARDS IN THESE REPECTS OF AN
OFFICER OR CADET CANNOT FALL WITHOUT HIS BEING NORALLY UNFIT TO BE AN
OFFICER OR CADET OR TO BE CONSIDERED A GENTLEMAN.  THIS ACRTICLE
CONTEMPLATES SUCH CONDUCT BE AN OFFICER OR CADET WHICH, TAKING ALL THE
CIRCUMSTANCES INTO CONSIDERATION, SATISFACTORILY SHOWS SUCH MORAL
UNFITNESS."  R. REYNOLDS, THE OFFICER'S GUIDE 435 - 436 (1969 REV.).
THIS LANGUAGE IS SUBSTANTIALLY REPEATED IN MANUAL 212. 

/13/  W. WINTHROP, MILITARY LAW AND PRECEDENTS 723 (2D ED. 1920). 
FOR CASES EMBODYING THESE DEFINITIONS SEE UNITED STATES V. SADINSKY, 14
U.S.C. M. A 563, 34 C. M. R. 343; UNITED STATES V. HOLIDAY, 4 U.S.C. M.
A. 454, 16 C. M. R. 28.  SEE ALSO MANUAL 213 (B), CONTAINING IDENTICAL
LANGUAGE. 

/14/  UNITED STATES V. JOURNELL, 18 C. M. R. 752 (AFBR). 

/15/  UNITED STATES V. KUPFER, 9 C. M. R. 283 (ABR), AFF'D, 3 U. S.
M. A. 478, 13 C. M. R. 34. 

/16/  UNITED STATES V. WEST, 16 C. M. R. 587 (AFBR), PETITION FOR
REVIEW DENIED, 4 U.S.C. M. A. 744, 20 C. M. R. 398. 

/17/  UNITED STATES V. ALCANTARA, 39 C. M. R. 682 (ABR), AFF'D, 18
U. S.C. M. A. 372, 40 C. M. R. 84. 

FOR A LISTING OF OTHER REPRESENTATIVE CONVICTIONS UNDER ART 133, SEE
H. MOYER, JUSTICE AND THE MILITARY 1028 - 1034 (1972).  SEE ALSO
NELSON, CONDUCT EXPECTED OF AN OFFICER AND A GENTLEMAN: AMBIGUITY, 12
AF JAG L. REV. 124. 

/18/  UNITED STATES V. SANCHEZ, 11 U.S.C. M. A. 216, 29 C. M. R.
32. 

/19/  UNITED STATES V. CLARK, 22 C.M.R. 888 (AFBR), PETITION FOR
REVIEW DENIED, 7 U.S.C.M.A. 790, 22 C.M.R. 331. 

/20/  UNITED STATES V. HOLT, 7 U.S.C.M.A. 617, 23 C.M.R. 81. 

/21/  THE DRAFTERS OF THE MANUAL FOR COURTS-MARTIAL HAVE ADMITTED AS
MUCH, CHARACTERIZING THE DISCREDIT CLAUSE OF ART. 134 AS THE "CATCH
ALL" IN MILITARY LAW.  LEGAL AND LEGISLATIVE BASIS, MANUAL FOR COURTS
MARTIAL UNITED STATES 294 (1951).  ADMITTING THAT THE LANGUAGE OF ART.
134 IS "VAGUE," THE DRAFTERS STATE:     "BY JUDICIAL INTERPRETATION
THESE 'VAGUE WORDS' HAVE SINCE BEEN EXPANDED FROM THE NARROW
CONSTRUCTION PLACED ON THEM BY THEIR AUTHOR TO THE POINT WHERE THEY
HAVE BEEN USED AS THE LEGAL JUSTIFICATION TO SUSTAIN CONVICTIONS FOR
PRACTICALLY ANY OFFENSE COMMITTED BY ONE IN THE MILITARY SERVICE WHICH
IS NOT EITHER SPECIFICALLY DENOUNCED BY SOME OTHER ARTICLE, OR IS NOT A
CRIME OR OFFENSE NOT CAPITAL OR A DISORDER OR NEGLECT TO THE PREJUDICE
OF GOOD ORDER AND DISCIPLINE."  ID, AT 295. 

/22/  SEE, E. G., UNITED STATES V. FORD, 31 C. M. R. 353 (ABR),
PETITION FOR REVIEW DENIED, 12 U.S.C. M. A. 763, 31 C. M. R. 314
(CONVICTION UNDER ART. 133 FOR SHOWING AN ALLEGEDLY OBSCENE PHOTOGRAPH
TO A FRIEND IN A PRIVATE HOME REVERSED); UNITED STATES V. WALUSKI, 6
U.S.C. M. A. 724, 21 C. M. R. 46 (CONVICTION UNDER ART. 134 OF
PASSENGER FOR LEAVING SCENE OF ACCIDENT REVERSED). 

23/  SEE ALSO SWAIM V. UNITED STATES, 165 U. S. 553; UNITED STATES
V. FLETCHER, 148 U. S. 84; SMITH V. WHITNEY, 116 U. S. 167. 

/24/  SEE GENERALLY COMMENT, THE DISCREDIT CLAUSE OF THE UCMJ: AN
UNRESTRICTED ANACHRONISM, 18 U.C. L. A. L. REV. 821, 833 - 837.  CF.
WARREN, THE BILL OF RIGHTS AND THE MILITARY, 37 N. Y. U. L. REV. 181,
187 - 188; WIENER, COURTS-MARTIAL AND THE BILL OF RIGHTS: THE ORIGINAL
PRACTICE II, 72 HARV. L. REV. 266, 292, 301 - 302. 

/25/  SEE COMMENT, THE DISCREDIT CLAUSE OF THE UCMJ: AND
UNRESTRICTED ANACHRONISM, 18 U. C. L. A. L. REV. 821, 836.  CF AVRECH
V. SECRETARY OF THE NAVY.  155 U. S. APP. D. C. 352, 357, 477 F. 2D
1237, 1242 (CLARK, J. PROB.  JURIS.  NOTED, 414 U. S. 816. 

/26/  THE RECORD INDICATES THAT DR. LEVY, UNLIKE MANY OTHER MEDICAL
OFFICERS ENTERING ACTIVE DUTY, DID NOT ATTEND THE BASIC MILITARY
ORIENTATION COURSE AT FORT SAM HOUSTON, TEXAS.  INSTEAD, HE CAME TO
FORT JACKSON DIRECTLY FROM CIVILIAN LIFE.  WHILE AT FORT JACKSON, HE
RECEIVED BUT 16 TO 26 HOURS OF MILITARY TRAINING, ONLY A SMALL PORTION
OF WHICH WAS DEVOTED TO MILITARY JUSTICE. 

/27/  THE COURT SUGGESTS, ANTE, AT 751 - 752, THAT SOME OF THE
PROBLEMS WITH THE GENERAL ARTICLES MAY BE AMELIORATED BY THE
REQUIREMENT OF ART. 137, 10 U.S.C. 937, THAT THE PROVISIONS OF THE CODE
BE "CAREFULLY EXPLAINED TO EACH ENLISTED MEMBER AT THE TIME OF HIS
ENTRANCE ON ACTIVE DUTY, OR WITHIN SIX DAYS THEREAFTER," AND THAT THEY
BE "EXPLAINED AGAIN AFTER HE HAS COMPETED SIX MONTHS OF ACTIVE DUTY." 
EVEN ASSUMING ARGUENDO THAT IT IS POSSIBLE TO "CAREFULLY EXPLAIN" THE
GENERAL ARTICLES, I DO NOT BELIEVE THAT ART. 137 CURES THE VAGUENESS OF
THE STATUTES.  THE RECORD IN THIS CASE INDICATES THAT DR. LEVY RECEIVED
ONLY A VERY BRIEF AMOUNT OF INSTRUCTION ON MILITARY JUSTICE;
PRESUMABLY, ONLY A FRACTION OF THAT INSTRUCTION WAS DEVOTED TO THE
GENERAL ARTICLES.  SEE N. 26, SUPRA.  MOREOVER, ARMY REGULATIONS
INDICATE THAT ONLY 20 MINUTES OF INSTRUCTION AT THE INITIAL MILITARY
JUSTICE LESSON FOR ENLISTED MEN IS DEVOTED TO ARTS.  71 THROUGH 134 OF
THE U. C. M. J.; 49 MINUTES ON INSTRUCTION ON ARTS.  107 THROUGH 134 IS
PROVIDED FOR AT THE SIX-MONTH CLASS.  DEPARTMENT OF THE ARMY, ARMY
REGULATION 350 - 212, TRAINING, MILITARY JUSTICE, 2 JUNE 1972; ARMY
SUBJECT SCHEDULE NO. 21 -10, MILITARY JUSTICE JUSTICE (ENLISTED
PERSONNEL TRAINING), 24 JUNE 1969.  OBVIOUSLY, ONLY A PORTION OF THIS
TOTAL OF 69 MINUTES CAN BE SET ASIDE FOR INSTRUCTION PERTAINING TO THE
GENERAL ARTICLES.  IT WOULD BE MYOPIC TO PRETEND THAT SUCH LIMITED
INSTRUCTION ON THESE AMORPHOUS CRIMINAL STATUTES PROVIDED MILITARY
PERSONNEL WITH ANY GENUINE EXPTISE ON THE SUBJECT, EVEN ASSUMING THAT
ANYBODY COULD EVER ACQUIRE SUCH EXPRETISE. 

/28/  MANUAL, APP. 6C. 

/29/  SEE, E. G., UNITED STATES V. SADINSKY, 14 U.S.C. M. A. 563, 34
C. M. R. 343 (JUMPING FROM SHIP TO SEA); UNITED STATES V. SANCHEZ, 11
U.S.C. M. A. 216, 29 C. M. R. 32 (SEXUAL ACTS WITH A CHICKEN).  SEE
ALSO AVRECH V. SECRETARY OF THE NAVY, 155 U. S. APP. D. C., AT 357, 477
F.2D, AT 1242; MANUAL, APP. 6A.1: LEGAL AND LEGISLATIVE BASIS, MANUAL
FOR COURTS-MARTIAL UNITED STATES 296 (1951). 

/30/  MANUAL, APP. 6C, SPEC. 126 

/31/  ID., APP 6C, SPEC. 170 

/32/  ID., APP. 6C, SPEC. 188. 

/33/  SIMILARLY, THE SPECIFICATIONS CONCERNING ART. 133 COVER SUCH
DISSIMILAR OFFENSES AS COPYING AN EXAMINATION PAPER, BEING DRUNK AND
DISORDERLY, FAILING TO PAY A DEBT, AND FAILURE TO KEEP A PROMISE TO PAY
A DEBT.  ID., APP. 6C, SPECS.  122 - 125.  NOWHERE UNDER THE ART. 133
SPECIFICATIONS IS THERE ANY MENTION OF THE CONDUCT WITH WHICH LEVY WAS
CHARGED. 

/34/  ID., APP. 6, SPECS.  118 - 176 (1951 ED.). 

/35/  ID., APP. 6C, SPECS.  126 - 188 (1969). 

/36/  SEE UNITED STATES V. SMITH, 13 U.S.C. M. A. 105, 32 C. M. R.
105; UNITED STATES V. MCCORMICK, 12 U.S.C. M. A. 26, 30 C. M. R. 26. 
IN THESE AND OTHE CASES, THE COURT OF MILITARY APPEALS HAS INDICATED
ITS BELIEF THAT CONGRESS DID NOT AND COULD NOT EMPOWER THE PRESIDENT TO
PROMULGATE SUBSTANTIVE RULES OF LAW FOR THE MILITARY.  SEE ALSO UNITED
STATES V. BARNES, 14 U.S.C. M. A. 567, 34 C. M. R. 347; UNITED STATES
V. MARGELONY, 14 U.S.C. M. A. 55, 33 C. M. R. 267.  CF. UNITED STATES
V. ACOSTA-VARGAS, 13 U.S.C. M. A. 388, 32 C. M. R. 388.  THE QUESTION
AS TO WHETHER THE EXECUTIVE HAS SUCH AN INHERENT POWER WAS APPARENTLY
LEFT OPEN BY THIS COURT IN REID V. COVERT, 354 U. S. 1, 38, AND IT IS
NOT NECESSARY TO RESOLVE IT IN THIS CASE.  IT IS ENOUGH TO NOTE THAT
THE COURT OF MILITARY APPEALS HAS CLEARLY HELD THAT INCLUSION OF
SPECIFIC CONDUCT IN THE MANUAL DOES NOT NECESSARILY MEAN THAT TI IS
VIOLATIVE OF THE GENERAL ARTICLES GIVEN THAT POSITION OF THE HIGHEST
MILITARY COURT, I CAN HARDLY CONCLUDE THAT A SERVICEMAN COULD EVER
RECEIVE AUTHORITATIVE NOTICE FROM THE FORM SPECEIFICATIONS AS TO THE
SCOPE OF THE ARTICLES. 

/37/  SEE, E. G., UNITED STATES V. MCCORMICK, 12 U.S.C. M. A. 26, 30
C. M. R. 26; UNITED STATES V. WALUSKI, 6 U.S.C. M. A. 724, 21 C. M. R.
46. 

/38/  MANUAL, APP. 6C, SPEC. 13.. 

/39/  ID., 213F (5). 

/40/  THE COURT ALSO HOLDS THAT EVEN IF THE GENERAL ARTICLES MIGHT
BE CONSIDERED VAGUE AS TO SOME OFFENDERS, THE APPELLEE HAS NO STANDING
TO RAISE SUCH A CLAIM, SINCE HE SHOULD HAVE KNOWN THAT HIS CONDUCT WAS
FORBIDDEN.  ANTE, AT 755 - 757.  TO THE EXTENT THAT THIS CONCLUSION
RESTS ON THE COURT'S HOLDINGS THAT THE GENERAL ARTICLES ARE GIVEN
CONTENT THROUGH LIMITING JUDICIAL CONSTRUCTION, MILITARY CUSTOM, OR THE
MANUAL FOR COURTS-MARTIAL, I HAVE INDICATED ABOVE MY DISAGREEMENT WITH
ITS UNDERLYING PREMISES.  AND TO THE EXTENT THAT THIS CONCLUSION RESTS
ON THE LANGUAGE OF THE GENERAL ARTICLES, I THINK THAT IT IS SIMPLY
MISTAKEN.  THE WORDS OF ARTS. 133 AND 134 ARE VAGUE BEYOND REPAIR; I AM
NO MORE ABLE TO DISCERN OBJECTIVE STANDARDS OF CONDUCT FROM PHRASES
SUCH AS "CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN" AND CONDUCT OF
A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES" THAN I AM FROM SUCH
WORDS AS "BAD" OR "REPREHENSIBLE."  GIVEN THIS ESSENTIAL UNCERTAINTY, I
CANNOT CONCLUDE THAT THE STATUTORY LANGUAGE CLEARLY WARNED THE APPELLEE
THAT HIS SPEECH WAS ILLEGAL.  IT MAY HAVE BEEN, OF COURSE, THAT DR.
LEVY HAD A SUBJECTIVE FEELING THAT HIS CONDUCT VIOLATED SOME MILITARY
LAW.  BUT THAT IS NOT ENOUGH, FOR AS WE POINTED OUT IN BOUIE V. CITY OF
COLUMBIA, 378 U. S. 347, 355 - 356, N. 5, "(THE DETERMINATION WHETHER A
CRIMINAL STATUTE PROVIDES FAIR WARNING OF ITS PROHIBITIONS MUST BE MADE
ON THE BASIS OF THE STATUTE ITSELF AND THE OTHER PERTINENT LAW, RATHER
THAN ON THE BASIS OF AN AD HOC APPRAISAL OF THE SUBJECTIVE EXPECTATIONS
OF PARTICULAR DEFENDANTS." 

/41/  CF. J. HELLER, CATCH-22, P. 395 (DELL ED. 1970):  "'(WE ACCUSE
YOU ALSO OF THE COMMISSION OF CRIMES AND INFACTIONS WE DON'T EVEN KNOW
ABOUT YET.  GUILTY OR INNOCENT?" 

"'I DON'T KNOW, SIR.  HOW CAN I SAY IF YOU DON'T TELL ME WHAT THEY
ARE?' 

"'HOW CAN WE TELL IF WE DON'T KNOW"'" 

/42/  GENERAL HODSON SUGGESTS THAT IN PLACE OF ART. 134, THE
DEPARTMENT OF DEFENSE AND VARIOUS MILITARY COMMANDERS COULD PROMULGATE
SPECIFIC SETS OF ORDERS, OUTLAWING PARTICULAR CONDUCT.  THOSE
DISOBEYING THESE ORDERS COULD BE PROSECUTED UNDER ART. 92 OF THE UCMJ,
10 U.S.C. 892, WHICH OUTLAWS THE FAILURE TO OBEY ANY LAWFUL ORDER.  SEE
ALSO NOTE, TAPS FOR THE REAL CATCH-22, 81 YALE L. J. 1518, 1537 - 1541,
CONTAINING A SIMILAR SUGGESTION. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM OF
THE BRIEF WERE ASSISTANT ATTORNEY GENERAL PETERSEN, ALLAN A . TUTTLE,
AND HEROME M. FEIT. 

CHARLES MORGAN, JR., ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE NORMAN SIEGEL, LAUGHLIN MCDONALD, MORRIS BROWN, NEIL
BRADLEY, REBER F. BOULT, JR., ANTHONY G. AMSTERDAM, ALAN H. LEVINE,
BURT NEUBORNE, MELVIN L. WULF, AND HENRY W. SAWYER III.* 

*BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY MARVIN M.
KARPATKIN AND THOMAS M. COMERFORD FOR THE ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK, AND BY JOSEPH H. SHARLITT AND NEAL E. KRUCOFF FOR
RICHARD G. AUGENBLICK. 
..END :



















BAKER V. GOLD SEAL LIQUORS, 417 U.S. 467 


       BAKER ET AL., TRUSTEES IN REORGANIZATION V. GOLD SEAL

           LIQUORS, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 73 - 804.  ARGUED APRIL 23, 1974--DECIDED JUNE 17,
1974;

           484 F.2D 950, REVERSED. 


    PETITIONERS, TRUSTEES OF A RAILROAD IN A 77 REORGANIZATION

  PROCEEDING, BROUGHT SUIT FOR FREIGHT CHARGES AGAINST RESPONDENT

  SHIPPER, AND RESPONDENT COUNTERCLAIMED FOR CARGO LOSS AND

  DAMAGE.  THE DISTRICT COURT GRANTED PETITIONER'S MOTION FOR

  SUMMARY JUDGMENT FOR ENTRY OF ONE JUDGMENT ON THEIR CLAIM AND

  ANOTHER ON THE COUNTERCLAIM, BUT SET OFF ONE JUDGMENT AGAINST THE

  OTHER, RESULTING IN A NET JUDGMENT AGAINST PETITIONERS FOR SOME

  $11,000.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE COURT OF

  APPEALS ERRED IN ALLOWING THE SETOFF, SINCE IT THEREFORE GRANTED

A PREFERENCE TO THE CLAIM OF ONE CREDITOR THAT HAPPENED TO OWE

  FREIGHT CHARGES OVER OTHER CREDITORS THAT DID NOT, AND THUS

  INTERFERED WITH THE REORGANIZATION COURT'S DUTY UNDER 77E, 11

  U.S.C. 205(E), TO APPROVE A "FAIR AND EQUITABLE PLAN" THAT DULY

  RECOGNIZES THE RIGHTS OF EACH CLASS OF CREDITORS AND STOCKHOLDERS

  AND DOES NOT DISCRIMINATE UNFAIRLY IN FAVOR OF ANY CLASS.  PP.

  468 - 474. 

DOUGLAS J., WROTE THE OPINION OF THE COURT, IN WHICH BUTGER, C.J.,
AND BRENNAN, MARSHALL, WHITE, AND BLACKMUN, JJ., JOINED.  STEWART, J.,
FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH POWELL, J., JOINED,
POST, P. 474.  REHNQUIST, J., FILED A DISSENTING OPINION, POST, P.
478. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
WHITE. 

THE PENN-CENTRAL TRANSPORTATION CO. IS IN BANKRUPTCY REORGANIZATION
UNDER 77 OF THE BANKRUPTCY REORGANIZATION UNDER 77 OF THE BANKRUPTCY
ACT, 11 U.S.C. 205.  PETITIONERS ARE ITS TRUSTEES AUTHORIZED TO COLLECT
ITS ASSETS, ONE OF WHICH IS A CLAIM FOR FREIGHT CHARGES AGAINST
RESPONDENT OWED THE BANKRUPT DEBTOR.  THE CLAIM ON WHICH THIS SUIT WAS
BROUGHT WAS $8,256.61 AND THE AMOUNT IS UNDISPUTED.  RESPONDENT FILED A
COUNTERCLAIM FOR $19,319.42 FOR LOSS AND DAMAGE TO SHIPMENTS OVER THE
DEBTOR'S LINES.  ITS AMOUNT IS ALSO NOT DISPUTED. 

THE TRUSTEES FILED A MOTION FOR SUMMARY JUDGMENT ASKING THE DISTRICT
COURT TO ENTER ONE JUDGMENT COVERING THE AMOUNT OF FREIGHT CHARGES
ADMITTEDLY DUE AND ANOTHER FOR THE AMOUNT CLAIMED BY RESPONDENT. 

PREVIOUSLY THE REORGANIZATION COURT IN THE THIRD CIRCUIT HAD
PROHIBITED THE VARIOUS BANK CREDITORS FROM OFFSETTING THEIR CLAIMS
AGAINST THE TRUSTEES OF THE DEBTOR.  315 F. SUPP. 1281.  PRIOR TO THE
DECISION OF THE INSTANT CASE THAT BANK SETOFF CASE WAS AFFIRMED BY THE
COURT OF APPEALS, 453 F.2D 520.  ALSO PRIOR TO THE RULING OF THE COURT
OF APPEALS IN THE INSTANT CASE THE REORGANIZATION COURT PROHIBITED SOME
SHIPPERS FROM SETTING OFF FREIGHT LOSS AND DAMAGE CLAIMS AGAINST
AMOUNTS OWED FOR TRANSPORTATION CLAIMS.  THAT ORDER, 339 F. SUPP. 603,
WAS AFFIRMED BY THE COURT OF APPEALS, 477 F.2D 841, AND BY THIS COURT,
SUB NOM. UNITED STATES STEEL CORP. V. TRUSTEES OF PENN CENTRAL TRANSP. 
CO., 414 U.S. 885. 

THE DISTRICT COURT IN THE INSTANT CASE GRANTED THE TRUSTEES' MOTION
FOR SUMMARY JUDGMENT BUT SET OFF ONE JUDGMENT AGAINST THE OTHER, WHICH
RESULTED IN A NET JUDGMENT IN FAVOR OF RESPONDENT AGAINST THE TRUSTEES
IN THE AMOUNT OF $11,017.01.  THE COURT OF APPEALS AFFIRMED, 484 F.2D
950; AND WE GRANTED CERTIORARI TO RESOLVE THE CONFLICT. 

WE REVERSE. 

ORDINARILY WHERE A COURT HAS PRIMARY JURISDICTION OVER THE PARTIES
AND OVER THE SUBJECT MATTER, THE POWER TO RESOLVE THE AMOUNT OF THE
CLAIM AND THE COUNTERCLAIM IS CLEAR.  INDEED, UNDER THE FEDERAL RULES
OF CIVIL PROCEDURE THE COUNTERCLAIM MAY BE COMPULSORY.  RULE 13(A). 
/1/  THAT IS THE PROCEDURE UNDER 68 OF THE BANKRUPTCY ACT, 11 U.S.C.
108.  /2/ 

THE PROBLEM OF THE BANKRUPTCY REORGANIZATION COURT IS SOMEWHAT
DIFFERENT.  LIQUIDATION IS NOT THE OBJECTIVE.  RATHER, THE AIM IS BY
FINANCIAL RESTRUCTURING TO PUT BACK INTO OPERATION A GOING CONCERN. 
/3/  THAT ENTAILS TWO BASIC CONSIDERATIONS: 

FIRST IS THE COLLECTION OF AMOUNTS OWED THE BANKRUPT TO KEEP ITS
CASH INFLOW SUFFICIENT FOR OPERATING PURPOSES, AT LEAST AT THE SURVIVAL
LEVELS.  THE SECOND IS TO DESIGN A PLAN /4/  WHICH CREDITORS /5/  AND
OTHER CLAIMANTS WILL APPROVE, WHICH WILL PASS SCRUTINY OF THE
INTERSTATE COMMERCE COMMISSION, WHICH WILL MEET THE FAIR-AND-EQUITABLE
STANDARDS REQUIRED BY THE ACT FOR COURT APPROVAL, AND WHICH WILL
PRESERVE AN ONGOING RAILROAD IN THE PUBLIC INTEREST.  /6/ 

OF THE DEBTOR AND ITS PROPERTY WHEREVER LOCATED."  /7/  11 U.S.C.
205(A).  IN FURTHERANCE OF ITS LONG-RANGE RESPONSIBILITIES THE
REORGANIZATION COURT ENJOINED SECURED CREDITORS FROM SELLING COLLATERAL
TO REDUCE THEIR CLAIMS.  /8/  IT THEN WENT ON TO BAR ENFORCEMENT OF
LIENS AGAINST THE DEBTOR, TAKING POSSESSION OF ITS PROPERTY, OR
OBTAINING JUDGMENTS AGAINST THE DEBTOR, EXCEPT FOR SPECIFIED PURPOSES. 
/9/  ONE COURT SEIZED UPON THE LAST PROVISION IN THE ORDER WHICH SAYS
"THAT SUITS OR CLAIMS FOR DAMAGES CAUSED BY THE OPERATION OF TRAINS,
BUSES, OR OTHER MEANS OF TRANSPORTATION MAY BE FILED AND PROSECUTED TO
JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION,"  TO ADJUDICATE THE
MERITS OF A COUNTERCLAIM, BUT DECLINED TO ALLOW THE SETOFF.  /10/  BUT
PROOF OF THE CLAIM AGAINST THE DEBTOR IS A DISTINCT PRELIMINARY STAGE
TO A DETERMINATION OF WHAT PRIORITY, IF ANY, THE CLAIM THAT IS PROVED
RECEIVES IN A REORGANIZATION PLAN. 

THERE IS A HIERARCHY OF CLAIMS, THE OWNER OF THE EQUITY COMING
LAST.  WAGES OWING WORKERS RUNNING THE TRAINS LAW A PRIORITY IN THE
HIERARCHY.  UNSECURED CREDITORS USUALLY ARE POOLED TOGETHER.  THEY MAY
RECEIVE NEW SECURITIES, PERHAPS STOCK.  ALLOWANCE OF A SETOFF THAT
REDUCES ALL OR PART OF THE DEBTOR'S CLAIM AGAINST THEM IS A FORM OF
PRIORITY.  THE GUIDING PRINCIPLE GOVERNING PRIORITIES IS STATED IN
77(E) (1), 11 U.S.C. 205(E)(1):  THE REORGANIZATION COURT SHALL APPROVE
A PLAN IF IT "IS FAIR AND EQUITABLE, AFFORDS DUE RECOGNITION TO THE
RIGHTS OF EACH CLASS OF CREDITORS AND STOCKHOLDERS, DOES NOT
DISCRIMINATE UNFAIRLY IN FAVOR OF ANY CLASS OF CREDITORS OR
STOCKHOLDERS, AND WILL CONFORM TO THE REQUIREMENTS OF THE LAW OF THE
LAND REGARDING THE PARTICIPATION OF THE VARIOUS CLASSES OF CREDITORS
AND STOCKHOLDERS." 

THE TERM "FAIR AND EQUITABLE" HAS A LONG HISTORY GOING BACK AT LEAST
TO NORTHERN PACIFIC R. CO. V. BOYD, 228 U.S. 482, AND KANSAS CITY
TERMINAL R. CO. V. CENTRAL TRUST CO., 271 U.S. 445, WHOSE FIXED
PRINCIPLE HAS BEEN CARRIED OVER INTO 77E BY OUR DECISIONS.  /11/  THE
PLAN IS BY THE TERMS OF 77 A PRODUCT OF THE INTERSTATE COMMERCE
COMMISSION AND THE REORGANIZATION COURT WORKING COOPERATIVELY TOGETHER,
NEW HAVEN INCLUSION CASES, 399 U.S. 392, 431.  THE PUBLIC INTEREST, AS
WELL AS THE INTERESTS OF CREDITORS AND STOCKHOLDERS, IS AT ISSUE.  /12/
RFC V. DENVER 

THE ALLOWANCE OR DISALLOWANCE OF SETOFF MAY SEEM BUT A MINOR PART OF
THE ARCHITECTURAL PROBLEM.  BUT TO THE EXTENT THAT IT IS ALLOWED, IT
GRANTS A PREFERENCE TO THE CLAIM OF ONE CREDITOR OVER THE OTHERS BY THE
HAPPENSTANCE THAT IT OWES FREIGHT CHARGES THAT THE OTHERS DO NOT.  THAT
IS A FORM OF DISCRIMINATION TO WHICH THE POLICY OF 77 IS OPPOSED.  AS A
GENERAL RULE OF ADMINSITRATION FOR 77 REORGANIZATION COURTS, THE SETOFF
SHOULD NOT BE ALLOWED.  /13/

              REVERSED. 

/1/  RULE 13(A), THE COMPULSORY-COUNTERCLAIM RULE, REQUIRES A
DEFENDANT TO PLEAD ANY COUNTERCLAIM WHICH "ARISES OUT OF THE
TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT MATTER OF THE OPPOSING
PARTY'S CLAIM AND DOES NOT REQUIRE FOR ITS ADJUDICATION THE PRESENCE OF
THIRD PARTIES OF WHOM THE COURT CANNOT ACQUIRE JURISDICTION."  THE
CLAIM IS NOT COMPULSORY IF IT WAS THE SUBJECT OF ANOTHER PENDING ACTION
AT THE TIME THE ACTION WAS COMMENCED, OR IF THE OPPOSING PARTY BROUGHT
HIS SUIT BY ATTACHMENT OR OTHER PROCESS NOT RESULTING IN PERSONAL
JURISDICTION BUT ONLY IN REM OR QUASI IN REM JURISDICTION.  A
COUNTERCLAIM WHICH IS COMPULSORY BUT IS NOT BROUGHT IS THEREAFTER
BARRED, E.G., MESKER BROS. IRON CO. V. DONATA CORP., 401 F.2D 275,
279. 

IF A COUNTERCLAIM IS COMPULSORY, THE FEDERAL COURT WILL HAVE
ANCILLARY FOR A STATE COURT, E.G., GREAT LAKES RUBBER CORP. V. HERBERT
COOPER CO., 286 F. 2D 631.  UNDER RULE 13(A)'S PREDECESSOR THIS COURT
HELD THAT "TRANSACTION" IS A WORD OF FLEXIBLE MEANING WHICH MAY
COMPREHEND A SERIES OF OCCURRENCES IF THEY HAVE LOGICAL CONNECTION,
MOORE V. NEW YORK COTTON EXCHANGE, 270 U.S. 593, AND THIS IS THE RULE
GENERALLY FOLLOWED BY THE LOWER COURTS IN CONSTRUING RULE 13(A), E.G.,
GREAT LAKES, SUPRA; UNITED ARTISTS CORP. V. MASTERPIECE PRODUCTIONS,
221 F.2D 213, 216. 

RULE 13(B) PERMITS AS COUNTERCLAIMS, ALTHOUGH NOT COMPULSORY, "ANY
CLAIM AGAINST AN OPPOSING PARTY NOT ARISING OUT OF THE TRANSACTION OR
OCCURRENCE THAT IS THE SUBJECT MATTER OF THE OPPOSING PARTY'S CLAIM." 
THUS THE COURT MAY DISPOSE OF ALL CLAIMS BETWEEN THE PARTIES IN ONE
PROCEEDING WHETHER OR NOT THEY AROSE IN THE "SAME TRANSACTION." 

/2/  TITLE 11 U.S.C. 108 PROVIDES: 

"(A) IN ALL CASES OF MUTUAL DEBTS OR MUTUAL CREDITS BETWEEN THE
ESTATE OF A BANKRUPT AND A CREDITOR THE ACCOUNT SHALL BE STATED AND ONE
DEBT SHALL BE SET OFF AGAINST THE OTHER, AND THE BALANCE ONLY SHALL BE
ALLOWED OR PAID. 

"(B) A SET-OFF OR COUNTERCLAIM SHALL NOT BE ALLOWED IN FAVOR OF ANY
DEBTOR OF THE BANKRUPT WHICH '1) IS NOT PROVABLE AGAINST THE ESTATE AND
ALLOWABLE UNDER SUBDIVISION (G) OF SECTION 93 OF THIS TITLE; OR (2) WAS
PURCHASED BY OR TRANSFERRED TO HIM AFTER THE FILING OF THE PETITION OR
WITHIN FOUR MONTHS BEFORE SUCH FILING WITH A VIEW TO SUCH OR HAD
COMMITTED AN ACT OF BANKRUPTCY." 

IF THE TRUSTEE IN ORDINARY BANKRUPTCY GOES INTO A COURT THAT HAS
JURISDICTION AND ASSERTS A CLAIM, THE DEBTOR OF THE BANKRUPT MAY RAISE
AS A SETOFF ANY CLAIM HE HAS AGAINST THE BANKRUPT AND THE COURT
ORDINARILY ISSUES ONLY ONE JUDGMENT FOR THE DIFFERENCE. 

IN A STRAIGHT BANKRUPTCY CASE, CUMBERLAND BLASS CO. V. DE WITT, 237
U.S. 447, THE COURT CONSTRUED 68 AS "PERMISSIVE RATHER THAN MANDATORY"
AND AS TO WHICH THE BANKRUPTCY COURT "EXERCISES ITS DISCRETION . . .
UPON THE GENERAL PRINCIPLES OF EQUITY."  ID., AT 455.  AND SEE
SUSQUEHANNA CHEMICAL CORP. V. PRODUCERS BANK & TRUST CO., 174 F.2D
(783. 

/3/  THE DISSENT PLACES MISTAKEN RELIANCE ON SUBSECTION L OF 77 OF
THE BANKRUPTCY ACT, 11 U.S.C. 205(L), TO ARGUE THAT THE SETOFF
PROVISION OF 68, 11 U.S.C. 108, NECESSARILY APPLIES TO ALL
REORGANIZATION PROCEEDINGS UNDER 77.  NO AUTHORITY IS CITED FOR THIS
NOVEL CONSTRUCTION OF SUBSECTION L, AND INDEED THE VERY WORDING OF THE
SUBSECTION ITSELF MAKES CLEAR THAT IT APPLIES ONLY WHEN "CONSISTENT
WITH THE PROVISIONS" OF 77.  WE HAVE LONG HELD THAT THE DISTINCTIVE
PURPOSES OF 77 MAY REQUIRE DIFFERENT PROCEDURES THAN WOULD BE FOLLOWED
IN ORDINARY BANKRUPTCY.  FOR EXAMPLE, INB HOLDING THAT UNDER 77 THE
REORGANIZATION COURT HAD AUTHORITY TO ENJOIN THE SALE OF COLLATERAL IF
IT WOULD HINDER OR OBSTRUCT THE PREPARATION OF A REORGANIZATION PLAN,
WE STATES:  "IT MAY BE THAT IN AN ORDINARY BANKRUPTCY PRESENTED WOULD
NOT BE SUSTAINED.  AS TO THAT IT IS NOT NECESSARY TO EXPRESS AN
OPINION.  BUT A PROCEEDING UNDER 77 IS NOT AN ORDINARY PROCEEDING IN
BANKRUPTCY.  IT IS A SPECIAL PROCEEDING WHICH SEEKS ONLY TO BRING ABOUT
A REORGANIZATION, IF A SATISFACTORY PLAN TO THAT END CAN BE DEVISED. 
AND TO PREVENT THE ATTAINMENT OF THAT OBJECT IS TO DEFEAT THE VERY END
THE ACCOMPLISHMENT OF WHICH WAS THE SOLE AIM OF THE SECTION, AND
THEREBY TO RENDER ITS PROVISIONS FUTILE."  CONTINENTAL BANK V. ROCK
ISLAND R. CO., 294 U.S. 648, 676.  AND SEE NEW HAVEN INCLUSION CASES,
399 U.S. 392, 420. 

ORDINARY BANKRUPTCY AIMS AT LIQUIDATION OF A BUSINESS. 
REORGANIZATION UNDER 77 AIMS AT A CONTINUATION OF THE OLD BUSINESS
UNDER A NEW CAPITAL STRUCTURE THAT RESPECTS THE RELATIVE PRIORITIES OF
THE VARIOUS CLAIMANTS. 

/4/  SECTION 77B, 11 U.S.C. 205(B), DEFINES A "PLAN OF
REORGANIZATION."  THE PROVISIONS FOR FILING A "PLAN" WITH THE COURT AND
WITH THE INTERSTATE COMMERCE COMMISSION ARE GOVERNED BY 77D, 11 U.S.C.
205(D). 

/5/  UNSECURED CREDITORS HAVE THE PRIORITY THEY WOULD HAVE HAD "IF A
RECEIVER IN EQUITY OF THE PROPETY OF THE DEBTOR HAD BEEN APPOINTED BY A
FEDERAL COURT ON THE DAY OF THE APPROVAL" OF THE BANKRUPTCY PETITION
AND SHALL BE TREATED AS A SEPARATE CLASS OR CLASSES.  11 U.S.C.
205(B).  AS TO THAT PRIORITY SEE GREGG V. METROPOLITAN TRUST CO., 197
U.S. 18 IN ST. LOUIS & S.F.R. CO. V. SPILLER, 274 U.S. 304, 311, THE
COURT SAID "BY LONG ESTABLISHED PRACTICE, THE DOCTRINE HAS BEEN APPLIED
ONLY TO UNPAID EXPENSES INCURRED WITHIN SIX MONTHS PRIOR TO THE
APPOINTMENT OF THE RECEIVERS . . . . THE CASES IN WHICH THIS TIME LIMIT
WAS NOT OBSERVED, ARE FEW IN NUMBER AND EXCEPTIONAL IN CHARACTER." 

/6/  NEW HAVEN INCLUSION CASES, SUPRA, AT 420. 

/7/  SECTION 77A PROVIDES IN RELEVANT PART:  "IF THE PETITION IS SO
APPROVED, THE COURT IN WHICH THE ORDER IS ENTERED SHALL, DURING THE
PENDENCY OF THE PROCEEDINGS UNDER THIS SECTION AND FOR THE PURPOSES
THEREOF, HAVE EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY
WHEREVER LOCATED, AND SHALL HAVE AND MAY EXERCISE IN ADDITION TO THE
POWERS CONFERRED BY THIS SECTION ALL THE POWERS, NOT INCONSISTENT WITH
THIS SECTION, WHICH A COURT OF THE UNITED STATES WOULD HAVE HAD IF IT
HAD APPOINTED A RECEIVER IN EQUITY OF THE PROPERTY OF THE DEBTOR FOR
ANY PURPOSE.  PROCESS OF THE COURT SHALL EXTEND TO AND BE VALID WHEN
SERVED IN ANY JUDICIAL DISTRICT." 

AS MR. JUSTICE STEWART CORRECTLY NOTES, INFRA, AT 476, IT IS SETTLED
THAT "PROPERTY" WITHIN THE MEANING OF THIS SECTION INCLUDES INTANGIBLES
SUCH AS CHOSES IN ACTION. 

/8/  THE ORDER PROVIDED IN PART:  "ALL PERSONS, FIRMS AND
CORPORATIONS, HOLDING COLLATERAL HERETOFORE PLEDGED BY THE DEBTOR AS
SECURITY FOR ITS NOTES OR OBLIGATIONS OR HOLDING FOR THE ACCOUNT OF THE
DEBTOR DEPOSIT BALANCES OR CREDITS BE AND EACH OF THEM HEREBY IS
RESTRAINED AND ENJOINED FROM SELLING, CONVERTING OR OTHERWISE DISPOSING
OF SUCH COLLATERAL, DEPOSIT BALANCES OR OTHER CREDITS, OR ANY PART
THEREOF, OR FROM OFFSETTING THE SAME, OR ANY PART THERE OF, AGAINST ANY
OBLIGATION OF THE DEBTOR, UNTIL FURTHER ORDER OF THIS COURT." 

/9/  "ALL PERSONS AND ALL FIRMS AND CORPORATIONS, WHATSOEVER AND
WHERESOEVER SITUATED, LOCATED OR DOMICILED, HEREBY ARE RESTRAINED AND
ENJOINED FROM INTERFERING WITH, SEIZING, CONVERTING, APPROPRIATING,
ATTACHING, GARNISHEEING, LEVYING UPON, OR ENFORCING LIENS UPON, OR IN
ANY MANNER WHATSOEVER DISTURBING ANY PORTION OF THE ASSETS, GOODS,
MONEY, DEPOSIT BALANCES, CREDITS, CHOSES IN ACTION, INTERESTS,
RAILROADS, PROPERTIES OR PREMISES BELONGING TO, OR IN THE POSSESSION OF
THE DEBTOR AS OWNER, LESSEE OR OTHERWISE, OR FROM TAKING POSSESSION OF
OR FROM ENTERING UPON, OR IN ANY WAY INTERFERING WITH THE SAME, OR ANY
PART THEREOF, OR FROM INTERFERING IN ANY MANNER WITH THE OPERATION OF
SAID RAILROADS, PROPERTIES OR PREMISES OR THE CARRYING ON OF ITS
BUSINESS BY THE DEBTOR UNDER THE ORDER OF THIS COURT AND FROM
COMMENCING OR CONTINUING ANY PROCEEDING AGAINST THE DEBTOR, WHETHER FOR
OBTAINING OR FOR THE ENFORCEMENT OF ANY JUDGMENT OR DECREE OR FOR ANY
OTHER PURPOSE, PROVIDED THAT SUITS OR CLAIMS FOR DAMAGES CAUSED BY THE
OPERATION OF TRAINS, BUSES, OR OTHER MEANS OF TRANSPORTATION MAY BE
FILED AND PROSECUTED TO JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION
. . . ." 

/10/  BAKER V. SOUTHEASTERN MICHIGAN SHIPPERS ASSN.  (NO. 39090, ED
MICH. 1973). 

/11/  ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448, 477 - 483;
GROUP OF INVESTORS V. MILWAUKEE R. CO., 318 U.S. 523, 569 - 541; RFC V.
DENVER & R.G.W.R.C., 328 U.S. 495, 516 - 520.  THE SAME IS TRUE UNDER
101 ET SEQ. (NOW C.X) OF THE BANKRUPTCY ACT, 11 U.S.C. 504 ET SEQ.
CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, 312 U.S. 510. 

/12/  AND SEE NEW HAVEN INCLUSION CASES, 399 U.S., AT 420. 

/13/  LOWDEN V. NORTHWESTERN NATIONAL BANK & TRUST CO., 298 U.S.
160, IS NOT TO THE CONTRARY.  THE COURT THERE REFUSED TO ANSWER THE
CERTIFIED QUESTION BECAUSE IT DID NOT KNOW THE FACTUAL SETTING IN WHICH
THE QUESTION HAD BEEN RAISED.  MUSH LAW HAS BEEN FASHIONED IN THE
REORGANIZATION FIELD SINCE 1936, THE DATE OF THAT DECISION.  THE
CONTOURS OF PLANS HAVE EMERGED WHICH HAVE GIVEN NEW MEANING AND INSIGHT
INTO THE STATUTORY WORDS "FAIR AND EQUITABLE."  THE PREFERENCE SOUGHT
HERE SHOWS NO EXCEPTIONAL CIRCUMSTANCES WHICH IN EQUITY JUSTIFY THE
DISCRIMINATION. 

MR. JUSTICE STEWART, WITH WHOM MUR.  JUSTICE POWELL JOINS,
CONCURRING IN THE RESULT. 

THE COURT CONCLUDES THAT SINCE THE ALLOWANCE OF A SETOFF IN A 77
REORGANIZATION WOULD GRANT "A PREFERENCE TO THE CLAIM OF ONE CREDITOR
OVER THE OTHERS BY THE HAPPENSTANCE THAT IT OWES FREIGHT CHARGES THAT
THE OTHERS DO NOT," SUCH SETOFFS SHOULD BE DISALLOWED "(AS A GENERAL
RULE OF ADMINISTRATION."  ANTE, THIS PAGE.  WHILE I AGREE THAT THE
DISTRICT COURT SHOULD NOT HAVE PERMITTED A SETOFF IN THIS CASE, I THINK
THAT THE BROAD RULE ADOPTED BY THE COURT IS UNNECESSARY TO REACH THIS
RESULT, AND I PREFER TO REST MY CONCLUSION ON A NARROWER GROUND. 

WHILE JUDICIAL SETOFFS ARE SPECIFICALLY AUTHORIZED IN STRAIGHT
BANKRUPTCY CASES, 68 OF THE BANKRUPTCY ACT, 11 U.S.C. 108, NO EXPRESS
APPROVAL OF THEM APPEARS IN THE STATUTE GOVERNING 77 REORGANIZATIONS. 
/1/  IN LOWDEN V. NORTHWESTERN NATIONAL BANK & TRUST CO., 298 U.S. 160
(1936), THIS COURT STATED THAT THE APPROVAL OF SETOFFS IN 68 DID NOT
CONTROL IN RAILROAD REORGANIZATIONS BUT "GOVERNS, IF AT ALL, BY
INDIRECTION AND ANALOGY ACCORDING TO THE CIRCUMSTANCES.  THE RULE TO BE
ACCEPTED FOR THE PURPOSE OF SUCH A SUIT IS THAT ENFORCED BY COURTS OF
EQUITY, WHICH DIFFERS FROM THE RULE IN BANKRUPTCY CHIEFLY IN ITS
GREATER FLEXIBILITY, THE RULE IN BANKRUPTCY BEING FRAMED IN ADAPTATION
TO STANDARDIZED CONDITIONS, AND THAT IN EQUITY VARYING WITH THE NEEDS
OF THE OCCASION, THOUGH REMAINING CONSTANT, LIKE THE STATUTE, IN THE
ABSENCE OF DEFLECTING FORCES."  ID., AT 164 - 165.  /2/ 

BY ANNOUNCING A DOCTRINE BARRING JUDICIAL SETOFFS AS A "GENERAL
RULE" THE COURT IN THE PRESENT CASE ADOPTS A RATIONALE INCONSISTENT
WITH LOWDEN, WHICH QUITE CLEARLY ENVISIONED A CASE-BY-CASE ANALYSIS OF
THE PROPRIETY OF EACH ATTEMPTED SETOFF IN THE LIGHT OF EQUITABLE
CONSIDERATIONS.  RATHER THAN REPLACING THIS PRINCIPLE WITH A NEW AND
WHOLLY INCONSISTENT RULE TO BE APPLIED IN ALL CASES INVOLVING JUDICIAL
SETOFFS, I WOULD REST THIS DECISION ON THE PARTICULAR FACTS BEFORE US,
WHICH ADEQUATELY DISTINGUISH THIS CASE FROM THE SITUATION IN LOWDER. 
/3/ 

OF THE DEBTOR AND ITS PROPERTY WHEREVER LOCATED."  IT HAS BEEN COMMONLY
ACCEPTED IN THE FEDERAL COURTS THAT "PROPERTY" WITHIN THE MEANING OF
THIS SECTION INCLUDES INTANGIBLES SUCH AS CHOSES IN ACTION.  SEE 2 W.
COLLIER, BANKRUPTCY 2305 (4), P. 485 (1971), AND CASES THERE CITED.  IT
FOLLOWS, THEREFORE, THAT RESPONDENT'S DEBT TO THE PENN CENTRAL FELL
WITHIN THE "EXCLUSIVE JURISDICTION" OF THE REORGANIZATION COURT
IMMEDIATELY UPON THE APPROVAL OF THE PETITION FOR REORGANIZATION. 
WHILE SUCH JURISDICTION MAY NOT EMPOWER THE REORGANIZATION COURT TO
ENFORCE THE CAUSE OF ACTION, SEE ID., AT 489 - 490; IN RE ROMAN, 23
F.2D 556 (CA2 1928) (L.HAND, J.), IT CERTAINLY DOES EMPOWER THE COURT
TO PROTECT THE "PROPERTY" AND TO IMMUNIZE IT FROM DIMINUTION THROUGH
SETOFF OR COUNTERCLAIM.  TO HOLD OTHERWISE WOULD BE INCONSISTENT WITH
THE FUNCTION OF THE REORGANIZATION COURT TO CONSOLIDATE AND PROTECT THE
ASSETS OF THE PETITIONING CORPORATION.  CALLOWAY V. BENTON, 336 U.S.
132, 147 (1949); WARREN V. PALMER, 310 U.S. 132, 139 - 141 (1940); EX
PARTE BALDWIN, 291 U.S. 610, 615 (1934). 

WHILE THE MATTER IS NOT WHOLLY FREE FROM DOUBT, I AM PERSUADED THAT
THE REORGANIZATION COURT IN THIS PROCEEDING DID IN FACT ENJOIN THE
ALLOWANCE BY ANY OTHER COURT OF JUDICIAL SETOFFS AGAINST ANY DEBTS OWED
TO THE PENN CENTRAL.  /4/  ON THIS BASIS I JOIN THE JUDGMENT OF THE
COURT. 

/1/  I AM UNABLE TO CONCLUDE, AS DOES THE DISSENT, POST, AT 479 -
480, THAT SUBSECTION L OF 77 MANDATES ALLOWANCE IN 77 REORGANIZATIONS
OF ALL SETOFFS ALLOWED BY 68 IN STRAIGHT BANKRUPTCIES.  WHILE THE
DISSENT'S INGENIOUS READING OF THE STATUTE WOULD PROVIDE AN EASY
SEMANTIC SOLUTION TO THE PROBLEM PRESENTED IN THIS CASE, I AM IMPRESSED
WITH THE FACT THAT NEITHER THIS COURT IN LOWDEN V. NORTHWESTERN
NATIONAL BANK & TRUST CO., 298 U.S. 160 (1936), NOR, APPARENTLY, ANY
OTHER FEDERAL TRIAL OR APPELLATE COURT HAS CONSIDERED SUBSECTION L TO
HAVE ANY BEARING WHATSOEVER ON THE SETOFF PROBLEM.  IN THE ABSENCE OF
ANY SHOWING BASED ON LEGISLATIVE HISTORY THAT SUCH WAS THE INTENT OF
CONGRESS, AND PARTICULARLY IN THE ABSENCE OF ANY BRIEFING OR ORAL
ARGUMENT ON THE MATTER, I WOULD NOT, THEREFORE, GIVE THIS LESS-THAN
PELLUCID PROVISION THE FORCE ASCRIBED TO IT BY THE DISSENTING OPINION. 

/2/  THESE STATEMENTS OF THE COURT CONCERNING ALLOWANCE OF JUDICIAL
SETOFFS IN 77 CASES WERE, IN A TECHNICAL SENSE, DICTA.  THE LOWDEN CASE
CAME TO THE COURT ON QUESTIONS CERTIFIED BY THE COURT OF APPEALS FOR
THE EIGHTH CIRCUIT, AND THE COURT DISMISSED THE CERTIFICATE WITHOUT
FORMALLY ANSWERING THE QUESTIONS BECAUSE OF THE "DEFECTIVE FORM OF THE
CERTIFICATE . . . ."  298 U.S., AT 166.  THE COURT'S REASONING AS TO
THE AVAILABILITY OF SETOFFS, HOWEVER, HAS BEEN VIEWED AS
AUTHORITATIVE.  SEE E.G., IN RE LEGIGH & HUDSON RIVER R. CO., 468 F.2D
430, 433 (CA2 1972); IN RE YALE EXPRESS SYSTEM, 362 F.2D 111, 116 - 117
(CA2 1966); SUSQUEHANNA CHEMICAL CORP V. PRODUCERS BANK & TRUST CO.,
174 F.2D 783, 787 (CA3 1949).  SEE ALSO 4 W. COLLIER, BANKRUPTCY 68.10
(2), PP. 898 - 900, N. 17 (1971). 

/3/  BECAUSE OF MY VIEW OF THIS CASE I NEED NOT COMMENT ON THE
PROPRIETY OF THE RULE ADOPTED BY THE COURT, ALTHOUGH I THINK THERE ARE
STRONG ARGUMENTS THAT THE RULE CAN BE UNFAIR, SEE, E.G., IN RE LEHIGH &
HUDSON RIVER R. CO., SUPRA, AT 434, AND THAT THOSE ARGUMENTS ARE NOT
DEALT WITH IN THE COURT'S OPINION TODAY. 

/4/  THE REORGANIZATION COURT'S INITIAL ORDER APPROVING THE PENN
CENTRAL'S PETITION FOR REORGANIZATION, FILED ON JUNE 21, 1970,
CONTAINED THE FOLLOWING PROVISIONS: 

"9.  ALL PERSONS AND ALL FIRMS AND CORPORATIONS, WHATSOEVER AND
WHERESOEVER SITUATED, LOCATED OR DOMICILED, HEREBY ARE RESTRAINED AND
ENJOINED FROM INTERFERING WITH, SEIZING, CONVERTING, APPROPRIATING,
ATTACHING, GARNISHEEING, LEVYING UPON, OR ENFORCING LIENS UPON, OR IN
ANY MANNER WHATSOEVER DISTURBING ANY PORTION OF THE ASSETS, GOODS,
MONEY, DEPOSIT BALANCES, CREDITS, CHOSES IN ACTION, INTERESTS,
RAILROADS, PROPERTIES OR PREMISES BELONGING TO, OR IN THE POSSESSION OF
THE DEBTOR AS OWNER, LESSEE OR OTHERWISE, OR FROM TAKING POSSESSION OF
OR FROM ENTERING UPON, OR IN ANY WAY INTERFERING WITH THE SAME, OR ANY
PART THEREOF, OR FROM INTERFERING IN ANY MANNER WITH THE OPERATION OF
SAID RAILROADS, PROPERTIES OR PREMISES OR THE CARRYING ON OF ITS
BUSINESS BY THE DEBTOR UNDER THE ORDER OF THIS COURT AND FROM
COMMENCING OR CONTINUING ANY PROCEEDING AGAINST THE DEBTOR, WHETHER FOR
OBTAINING OR FOR THE ENFORCEMENT OF ANY JUDGMENT OR DECREE OR FOR ANY
OTHER PURPOSE, PROVIDED THAT SUITS OR CLAIMS FOR DAMAGES CAUSED BY THE
OPERATION OF TRAINS, BUSES, OR OTHER MEANS OF TRANSPORTATION MAY BE
FILED AND PROSECUTED TO JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION
AND PROVIDED, FURTHER, THAT THE TITLE OF ANY OWNER, WHETHER AS TRUSTEE
OR OTHERWISE, TO ROLLING STOCK EQUIPMENT LEASED OR CONDITIONALLY SOLD
TO THE DEBTOR, AND ANY RIGHT OF SUCH OWNER TO TAKE POSSESSION OF SUCH
PROPERTY IN COMPLIANCE WITH THE PROVISIONS OF ANY SUCH LEASE OR
CONDITIONAL SALE CONTRACT, SHALL NOT BE AFFECTED BY THE PROVISIONS OF
THIS ORDER. 

"10.  ALL PERSONS, FIRMS AND CORPORATIONS, HOLDING COLLATERAL
HERETOFORE PLEDGED BY THE DEBTOR AS SECURITY FOR ITS NOTES OR
OBLIGATIONS OR HOLDING FOR THE ACCOUNT OF THE DEBTOR DEPOSIT BALANCES
OR CREDITS BE AND EACH OF THEM HEREBY (IS) RESTRAINED AND ENJOINED FROM
SELLING, CONVERTING OR OTHERWISE DISPOSING OF SUCH COLLATERAL, DEPOSIT
BALANCES OR OTHER CREDITS, OR ANY PART THEREOF, OR FROM OFFSETTING THE
SAME, OR ANY PART THEREOF, AGAINST ANY OBLIGATION OF THE DEBTOR, UNTIL
FURTHER ORDER OF THIS COURT." 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE QUESTION IN THIS CASE IS WHETHER THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, WHEREIN PETITIONERS FILED
THEIR CLAIM FOR MONEY DAMAGES AGAINST RESPONDENT, AND THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT, WHICH AFFIRMED THE DISTRICT COURT'S
ORDER SETTING OFF RESPONDENT'S CLAIM AGAINST PETITIONERS, ACTED WITHIN
THE PERMISSIBLE LIMITS OF THEIR DISCRETION.  THE STATUTE MOST CLOSELY
IN POINT IS 68 OF THE BANKRUPTCY ACT, 11 U.S.C. 108, WHICH PROVIDES: 

     "(A) IN ALL CASES OF MUTUAL DEBTS OR MUTUAL CREDITS BETWEEN
THE

  ESTATE OF A BANKRUPT AND A CREDITOR THE ACCOUNT SHALL BE STATED

  AND ONE DEBT SHALL BE SET OFF AGAINST THE OTHER, AND THE BALANCE

  ONLY SHALL BE ALLOWED OR PAID." 

IN THE ONLY CASE OF THIS COURT DEALING WITH THE APPLICABILITY OF 68
TO RAILROAD REORGANIZATIONS, THE COURT SAID: 

"(THE TRUSTEES MUST HAVE THE POWER TO GATHER IN THE ASSETS AND KEEP
THE BUSINESS GOING.  TO EXERCISE THAT POWER, THEY MAY FIND IT NECESSARY
TO SUE, AND THE SUIT MAY TURN UPON THE RIGHT OF SET-OFF, AS IT DOES IN
THE CASE AT HAND.  IN A SUIT FOR SUCH A PURPOSE, A SUIT COLLATERAL TO
THE MAIN PROCEEDING AND INITIATED AT A TIME WHEN THE OUTCOME OF THAT
PROCEEDING IS STILL UNKNOWN AND UNKNOWABLE, 68 OF THE STATUTE DOES NOT
CONTROL THE DISPOSITION OF THE CONTROVERSY EX PROPRIO VIGORE.  IT
GOVERNS, IF AT ALL, BY INDIRECTION AND ANALOGY ACCORDING TO THE
CIRCUMSTANCES.  . ."  LOWDEN V. NORTHWESTERN NATIONAL BANK & TRUST CO.,
298 U.S. 160, 164 (1936).  "WHEN ALL THE FACTS ARE KNOWN, THEY MAY BE
FOUND TO OFFER NO EXCUSE FOR A DEPARTURE FROM THE RULE IN BANKRUPTCY
WHICH, AS INDICATED ALREADY, IS GENERALLY, EVEN IF NOT ALWAYS, THE RULE
IN EQUITY AS WELL."  ID., AT 166. 

THE COURT'S OPINION IN LOWDEN, SUPRA, MAKES NO MENTION OF SUBSECTION
L OF 77 OF THE BANKRUPTCY ACT, 11 U.S.C. 205(L), WHICH PROVIDES IN
PERTINENT PART AS FOLLOWS: 

     "(L) JURISDICTION OF COURT, DUTIES OF DEBTOR AND RIGHTS OF

  CREDITORS SAME AS IN VOLUNTARY BANKRUPTCY. 

      "IN PROCEEDINGS UNDER THIS SECTION AND CONSISTENT WITH THE

  PROVISIONS THEREOF, THE JURISDICTION AND POWERS OF THE COURT, THE

  DUTIES OF THE DEBTOR AND THE RIGHTS AND LIABILITIES OF CREDITORS,

  AND OF ALL PERSONS WITH RESPECT TO THE DEBTOR AND ITS PROPERTY,

  SHALL BE THE SAME AS IF A VOLUNTARY PETITION FOR ADJUDICATION HAD

  BEEN FILED AND A DECREE OF ADJUDICATION HAD BEEN ENTERED ON THE

  DAY WHEN THE DEBTOR'S PETITION WAS FILED." 

STAT. 1467, WHICH ADDED CHAPTER VIII TO THE BANKRUPTCY ACT.  ANY
LINGERING DOUBT THAT THE TERM "VOLUNTARY PETITION FOR ADJUDICATION" IN
SUBSECTION L REFERS TO ORDINARY BANKRUPTCY PROCEEDINGS IS DISPELLED BY
AN EXAMINATION OF 73, WHICH WAS THE FIRST SECTION OF THAT ACT: 

     "SEC. 73.  ADDITIONAL JURISDICTION.--IN ADDITION TO THE

  JURISDICTION EXERCISED IN VOLUNTARY AND INVOLUNTARY PROCEEDINGS

  TO ADJUDGE PERSONS BANKRUPT, COURTS OF BANKRUPTCY SHALL EXERCISE

  ORIGINAL JURISDICTION IN PROCEEDINGS FOR THE RELIEF OF DEBTORS,

  AS PROVIDED IN SECTIONS 74, 75, AND 77 OF THIS ACT."  47 STAT.

  146. 

THE LANGUAGE OF SUBSECTION L OF 77, EVEN MORE EMPHATICALLY THAN THE
LOWDEN DECISION, WOULD SEEM TO UNCONDITIONALLY MANDATE THE APPLICATION
OF THE RULE REGARDING SETOFFS CONTAINED IN 68 OF THE BANKRUPTCY ACT TO
RAILROAD REORGANIZATIONS SUCH AS THIS. 

SUBSECTION A OF 77, 11 U.S.C. 205(A), GIVING THE REORGANIZATION
COURT "EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY WHEREVER
LOCATED," UPON WHICH THE COURT'S OPINION HEAVILY RELIES, SEEMS TO ME TO
HAVE VIRTUALLY NOTHING TO DO WITH THIS CASE.  WE ARE NOT DEALING WITH
PROPERTY THAT WAS ACTUALLY OR CONSTRUCTIVELY IN THE POSSESSION OF THE
TRUSTEES AT THE TIME OF THE COMMENCMENT OF THE REORGANIZATION
PROCEEDINGS, NOR ARE WE DEALING WITH A CREDITOR WHO IN ANY WAY
SUBMITTED HIMSELF TO THE JURISDICTION OF THE REORGANIZATION COURT IN
THE EASTERN DISTRICT OF PENNSYLVANIA. 

THIS IS A SIMPLE CONTRACT CLAIM FOR FREIGHT CHARGES ON THE PART OF
THE TRUSTEES, AGAINST WHICH THE RESPONDENT HAS SOUGHT TO SET OFF A
CONCEDEDLY VALID CLAIM FOR DAMAGE IN TRANSIT.  WHILE THE REORGANIZATION
COURT UNDOUBTEDLY HAD PLENARY AUTHORITY OVER THE TRUSTEES, AND OVER THE
" PROPERTY" OF THE DEBTOR, IT CERTAINLY DOES NOT HAVE SUCH JURISDICTION
OVER WHATEVER FUNDS OF RESPONDENT MIGHT BE USED TO SATISFY A JUDGMENT
AGAINST HIM IN FAVOR OF THE TRUSTEES.  THE TRUSTEES'"PROPERTY" IN THIS
CASE IS A CHOSE IN ACTION AND UNDER NO CONCEIVABLE CIRCUMSTANCES COULD
77 AUTHORIZE THE SUMMARY DETERMINATION OF THE CLAIM IN THIS CASE. 

"(THE BANKRUPTCY COURT DOES NOT HAVE SUMMARY JURISDICTION TO ENFORCE
A CHOSE IN ACTION AGAINST THE BANKRUPT'S OBLIGOR, EVEN WHEN THE
BANKRUPT'S RIGHTS SEEM CLEAR.  . . ."  IN RE LEHIGH & HUDSON RIVER R.
CO., 468 F.2D 430, 433 (CA2 1972) (FRIENDLY, C.J.)  . . . . "EVEN
THOUGH (THE OBLIGOR'S) REFUSAL WERE NO BETTER THAN COLORABLE, ITS
PROPERTY REMAINED ITS OWN; IT HAD ONLY BROKEN ITS PROMISE, AND, LIKE
ANY OTHER PROMISOR, WAS LIABLE TO AN ACTION FOR DAMAGES.  . . . IT
WOULD NOT BE PERMISSIBLE TO COLLECT EVEN A BANK DEPOSIT DUE A BANKRUPT
BY THESE MEANS."  IN RE ROMAN, 23 F.2D 556, 558 (CA2 1928) (L. HAND,
J.). 

CASES SUCH AS EX PARTE BALDWIN, 291 U.S. 610 (1934), AND WARREN V.
PALMER, 310 U.S. 132 (1940), DO NO MORE THAN REAFFIRM THE WELL
ESTABLISHED DOCTRINE THAT THE JURISDICTION OF THE BANKRUPTCY COURT OVER
THE PROPERTY OF THE DEBTOR IS EXCLUSIVE.  THEY DO NOT TOUCH UPON THE
CASE BEFORE US, WHERE THE TRUSTEED HAVE CHOSEN TO CONVERT THE CHOSE IN
ACTION, WHICH IS CONCEDEDLY THE PROPERTY OF THE DEBTOR AND SUBJECT TO
THE JURISDICTION OF THE REORGANIZATION COURT, INTO A MONEY JUDGMENT IN
ANOTHER FORUM. 

CALLOWAY V. BENTON, 336 U.S. 132 (1949), THOUGH NOT ON ALL FOURS WITH
THE PRESENT CASE, CAN HARDLY BE SIAD TO SUPPORT THE RESULT REACHED BY
THE COURT.  THERE AN ACTION HAD BEEN BROUGHT IN THE STATE COURTS OF
GEORGIA TO ENJOIN THE BOARD OF DIRECTORS OF A CORPORATION WHICH HAD
LEASED TRACKAGE TO THE CENTRAL OF GEORGIA RAILWAY FROM CONSENTING TO
THE PLAN OF REORGANIZATION WHICH HAD BEEN PROPOSED ON BEHALF OF CENTRAL
OF GEORGIA, WHICH WAS A DEBTOR IN A 77 PROCEEDING.  THE BANKRUPTCY
COURT HAD IN TURN ENJOINED THIS LITIGATION ON THE GROUND THAT IT
INTERFERED WITH THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT. 
THIS COURT REVERSED THAT DETERMINATION SAYING: 

"WE HAVE HELD THAT A COURT OF BANKRUPTCY HAS EXCLUSIVE AND
NONDELEGABLE CONTROL OVER THE ADMINISTRATION OF AN ESTATE IN ITS
POSSESSION.  THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478 (1940);
ISAACS V. HOBBS TIE & T. CO., 282 U.S. 734 (1931).  THERE CAN BE NO
QUESTION, HOWEVER, THAT CONGRESS DID NOT GIVE THE BANKRUPTCY COURT
EXCLUSIVE JURISDICTION OVER ALL CONTROVERSIES THAT IN SOME WAY AFFECT
THE DEBTOR'S ESTATE."  336 U.S., AT 142 (FOOTNOTE OMITTED). 

IF WE ACCEPT LOWDEN AS THE FINAL WORD FROM THIS COURT ON THE
QUESTION, EVEN THOUGH THE OPINION NOWHERE REFERS TO THE LANGUAGE OF
SUBSECTION L, WHICH ON ITS FACE WOULD CARRY OVER THE RULE OF 68 BAG AND
BAGGAGE, THE MOST THAT CAN BE SAID IN FAVOR OF THE PETITIONERS HERE IS
THAT THE DISTRICT COURT IN WHICH SUIT IS BROUGHT HAS DISCRETION AS TO
WHETHER OR NOT A SETOFF SHOULD BE ALLOWED. 

NOTHING COULD BE MORE CONSISTENT WITH LOWDEN THAN THE FLAT ORDER OF
THE REORGANIZATION COURT IN THIS CASE, ENTERED AT THE COMMENCEMENT OF
THE REORGANIZATION PROCEEDINGS, TO THE EFFECT THAT NO SETOFFS WERE TO
BE ALLOWED, UNLESS IT BE THAT PART OF THE COURT'S OPINION IN THIS CASE
STATING THAT "(AS A GENERAL RULE OF ADMINISTRATION FOR 77
REORGANIZATION COURTS, THE SETOFF SHOULD NOT BE ALLOWED."  ANTE, AT
474.  AND IT SEEMS A SUFFICIENT ANSWER TO THE COURT'S OBSERVATION THAT
THE ALLOWANCE OF A SETOFF GRANTS A PREFERENCE, ANTE, AT 473, TO SAY
THAT THE BANKRUPTCY ACT'S STRICTURES AGAINST PERFERENCES APPLY WITH AS
MUCH FORCE TO ORDINARY BANKRUPTCIES AS TO REORGANIZATIONS, AND YET 68
OF THE ACT SPECIFICALLY ALLOWS THIS TYPE OF "PREFERENCE" IN AN ORDINARY
BANKRUPTCY PROCEEDING. 

IT MAY BE THAT UPON A PROPER SHOWING TO THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS THE TRUSTEES COULD HAVE SATISFIED THAT
COURT THAT THE ALLOWANCE OF A SETOFF IN THIS CASE WOULD BE INCONSISTENT
WITH HIGHER PRIORITIES OF THE REORGANIZATION.  BUT NO SUCH SHOWING WAS
MADE BY THE TRUSTEES, AND THEY WERE CONTENT TO RELY ON THE EX PARTE
ORDER OF THE REORGANIZATION COURT WHICH MADE NO PRETENSE OF CONSIDERING
MATTERS ON A CASE-BY-CASE BASIS.  THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS WAS, THEREFORE, IN MY OPINION, JUSTIFIED IN
AUTHORIZING THE SETOFF UNDER THE DOCTRINE OF LOWDEN, AND THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT WAS CORRECT IN AFFIRMING ITS JUDGMENT. 

PAUL R. DUKE ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS JOHN E. WALLACE, JR. 

THEODORE J. HERST ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :















GEDULDIG V. AIELLO, 417 U.S. 484 


       GEDULDIG, DIRECTOR, DEPARTMENT OF HUMAN RESOURCES

           DEVELOPMENT V. AIELLO ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

        NO. 73 - 640.  ARGUED MARCH 26, 1974--DECIDED JUNE 17,
1974;

           359 F.SUPP.  792, REVERSED. 


    CALIFORNIA HAS A DISABILITY INSURANCE SYSTEM FOR PRIVATE

  EMPLOYEES TEMPORARITY DISABLED FROM WORKING BY AN INJURY OR

  ILLNESS NOT COVERED BY WORKMEN'S COMPENSATION, UNDER WHICH AN

  EMPLOYUEE CONTRIBUTES TO AN UNEMPLOYMENT COMPENSATION DISABILITY

  FUND ONE PERCENT OF HIS SALARY UP TO AN ANNUAL MAXIMUM OF $85.  A

  DISABILITY LASTING LESS THAN EIGHT DAYS IS NOT COMPENSABLE,

  EXCEPT WHEN THE EMPLOYEE IS HOSPTIALIZED.  BENEFITS ARE NOT

  PAYABLE FOR A SINGLE DISABILITY EXCEEDING 26 WEEKS.  A DISABILITY

  RESULTING FROM AN INDIVIDUAL'S COURT COMMITMENT AS A DIPSOMANIAC,

 DRUG ADDICT, OR SEXUAL PSYCHOPATH IS NOT COMPENSABLE, NOR ARE

  CERTAIN DISABILITIES ATTRIBUTABLE TO PREGNANCY.  APPELLEES, FOUR

  WOMEN OTHERWISE QUALIFIED UNDER THE PROGRAM WHO HAVE SUFFERED

  EMPLOYMENT DISABILITY BECAUSE OF PREGNANCIES, ONLY ONE OF WHICH

  WAS NORMAL, CHALLENGED THE PREGNANCY EXCLUSION.  A THREE-JUDGE

  DISTRICT COURT UPHELD THEIR CONTENTION THAT THE EXCLUSION

  VIOLATED THE EQUAL PROTECTION CLAUSE.  THE COURT DENIED A MOTION

  TO RECONSIDER BASED ON A STATE APPELLATE COURT RULING, IN WHICH

  APPELLANT WHO ADMINISTERS THE PROGRAM HAS ACQUIESCED, CONFINING

 THE EXCLUSION TO ONLY NORMAL PREGNANCIES.  THE CALIFORNIA

  PROGRAM, IN TERMS OF THE LEVEL OF BENEFITS AND RISKS INSURED, IS

  STRUCTURED TO MAINTAIN THE SOLVENCY OF THE DISABILITY FUND AT A

  ONE-PERCENT ANNUAL LEVEL OF CONTRIBUTION.  THE DISTRICT COURT

  ACKNOWLEDGED THAT COVERAGE OF DISABILITIES RESULTING FROM NORMAL

  PREGNANCIES WOULD ENTAIL SUBSTANTIAL ADDITIONAL EXPENSE.  BUT IT

  CONCLUDED THAT THIS INCREASED COST COULD BE ACCOMMODATED THROUGH

  ADJUSTMENTS IN THE RATE OF EMPLOYEE CONTRIBUTION, THE MAXIMUM

  BENEFITS PAYABLE, "AND THE OTHER VARIABLES AFFECTING THE SOLVENCY

  OF THE PROGRAM."  HELD: 

     1.  THE APPELLATE RULING AND ADMINISTRATIVE GUIDELINES

  EXCLUDING ONLY NORMAL PREGNANCIES HAVE MOOTED THE CASE AS TO THE

  THREE APPELLEES WHO HAD ABNORMAL PREGNANCIES AND WHOSE CLAIMS

  HAVE NOW BEEN PAID.  PP. 491 - 492. 

     2.  CALIFORNIA'S DECISION NOT TO INSURE UNDER ITS PROGRAM THE

  RISK OF DISABILITY RESULTING FROM NORMAL PREGNANCY DOES NOT

  CONSTITUTE AN INVIDIOUS DISCRIMINATION VIOLATIVE FO THE EQUAL

  PROTECTION CLAUSE.  ##HC485 THE PROGRAM DOES NOT DISCRIMINATE

WITH RESPECT TO THE PERSONS OR GROUPS ELIGIBLE FOR ITS

PROTECTION, AND THERE IS NO EVIDENCE THAT IT DISCRIMINATES

AGAINST ANY DEFINABLE GROUP OR CLASS IN TERMS OF THE AGGREGATE

  RISK PROTECTION DERIVED FROM THE PROGRAM.  THE SOLE CONTENTION IS

  THE ASSERTED UNDERINCLUSIVENESS OF THE PROGRAM'S COVERAGE AS A

  RESULT OF THE EXCLUSION OF DISABILITIES RESULTING FROM NORMAL

  PREGNANCY.  THE STATE IS NOT REQUIRED BY THE EQUAL PROTECTION

  CLAUSE TO SACRIFICE THE SELF-SUPPORTING NATURE OF THE PROGRAM,

  REDUCE THE BENEFITS PAYABLE FOR COVERED DISABILITIES, OR INCREASE

  THE MAXIMUM EMPLOYEE CONTRIBUTION RATE JUST TO PROVIDE PROTECTION

AGAINST ANOTHER RISK OF DISABILITY, SUCH AS NORMAL PREGNANCY. 

  "THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE THAT A STATE MUST

  CHOOSE BETWEEN ATTACKING EVERY ASPECT OF A PROBLEM OR NOT

  ATTACKING THE PROBLEM AT ALL."  DANDRIDGE V. WILLIAMS, 397 U.S.

  471, 486 - 487.  PP. 492 - 497. 

STEWART, J., DELIVERED THE OPOINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL,
JJ., JOINED, POST, P. 497. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

FOR ALMOST 30 YEARS CALIFORNIA HAD ADMINISTERED A DISABILITY
INSURANCE SYSTEM THAT PAYS BENEFITS TO PERSONS IN PRIVATE EMPLOYMENT
WHO ARE TEMPORARILY UNABLE TO WORK BECAUSE OF DISABILITY NOT COVERED BY
WORKMEN'S COMPENSATION.  THE APPELLEES BROUGHT THIS ACTION TO CHALLENGE
THE CONSTITUTIONALITY OF A PROVISION OF THE CALIFORNIA PROGRAM THAT, IN
DEFINING "DISABILITY," EXCLUDES FROM COVERAGE CERTAIN DISABILITIES
RESULTING FROM PREGNANCY.  BECAUSE THE APPELLEES SOUGHT TO ENJOIN THE
ENFORCEMENT OF THIS ATATE STATUTE, A THREE-JUDGE COURT WAS CONVENED
PURSUANT TO 28 U.S.C. 2281 AND 2284.  /1/  ON THE APPELLEES' MOTION FOR
SUMMARY JUDGMENT, THE DISTRICT COURT, BY A DIVIDED VOTE, HELD THAT THIS
PROVISION OF THE DISABILITY INSURANCE PROGRAM VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, AND THEREFORE ENJOINED
ITS CONTINUED ENFORCEMENT.  359 F. SUPP. 792.  THE DISTRICT COURT
DENIED A MOTION TO STAY ITS JUDGMENT PENDING APPEAL.  THE APPELLANT
THEREUPON FILED A SIMILAR MOTION IN THIS COURT, WHICH WE GRANTED.  414
U.S. 897.  WE SUBSEQUENTLY NOTED PROBABLE JURISDICTION OF THE APPEAL. 
414 U.S. 1110. 

I 

CALIFORNIA'S DISABILITY INSURANCE SYSTEM IS FUNDED ENTIRELY FROM
CONTRIBUTIONS DEDUCTED FROM THE WAGES OF PARTICIPATING EMPLOYEES. 
PARTICIPATION IN THE PROGRAM IS MANDATORY UNLESS THE EMPLOYEES ARE
PROTECTED BY A VOLUNTARY PLAN APPROVED BY THE STATE.  /2/  EACH
EMPLOYEE IS REQUIRED TO CONTRIBUTE ONE PERCENT OF HIS SALARY, UP TO AN
ANNUAL MAXIMUM OF $85.  /3/  THESE CONTRIBUTIONS ARE PLACED IN THE
UNEMPLOYMENT COMPENSATION DISABILITY FUND, WHICH IS ESTABLISHED AND
ADMINISTERED AS A SPECIAL TRUST FUND WITHIN THE STATE TREASURY.  /4/
IT IS FROM THIS DISABILITY FUND THAT BENEFITS UNDER THE PROGRAM ARE
PAID. 

AN INDIVUDUAL IS ELIGIBLE FOR DISABILITY BENEFITS IF, DURING A ONE
YEAR BASE PERIOD PRIOR TO HIS DISABILITY, HE HAS CONTRIBUTED ONE
PERCENT OF A MINIMUM INCOME OF $300 TO THE DISABILITY FUND.  /5/  IN
THE EVENT HE SUFFERS A COMPENSABLE DISABILITYW, THE INDIVIDUAL CAN
RECEIVE A "WEEKLY BENEFIT AMOUNT" OF BETWEEN $25 AND $105, DEPENDING ON
THE AMOUNT HE EARNED DURING THE HIGHEST QUARTER OF THE BASE PERIOD. 
/6/  BENEFITS ARE NOT PAID UNTIL THE EIGHTH DAY OF DISABILITY, UNLESS
THE EMPLOYEE IS HOSPITALIZED, IN WHICH CASE BENEFITS COMMENCE ON THE
FIRST DAY OF HOSPITALIZATION.  /7/  IN ADDITION TO THE "WEEKLY BENEFIT
AMOUNT," A HOSPITALIZED EMPLOYEE IS ENTITLED TO RECEIVE "ADDITIONAL
BENEFITS" OF $12 PER DAY OF HOSPITALIZATION.  /8/  "WEEKLY BENEFIT
AMOUNTS"  FOR ANY ONE DISABILITY ARE PAYABLE FOR 26 WEEKS SO LONG AS
THE TOTAL AMOUNT PAID DOES NOT EXCEED ONE-HALF OF THE WAGES RECEIVED
DURING THE BASE PERIOD.  /9/  "ADDITIONAL BENEFITS" FOR ANY ONE
DISABILITY ARE PAID FOR A MAXIMUM OF 20 DAYS.  /10/ 

IN RETURN FOR HIS ONE-PERCENT CONTRIBUTION TO THE DISABILITY FUND,
THE INDIVIDUAL EMPLOYEE IS INSURED AGAINST THE RISK OF DISABILITY
STEMMING FROM A SUBSTANTIAL NUMBER OF "MENTAL OR PHYSICAL ILLNESSES)
AND MENTAL OR PHYSICAL INJURIES)."  CAL. UNEMP.  INS.  CODE OF 2626. 
IT IS NOT EVERY DISABLING CONDITION, HOWEVER, THAT TRIGGERS THE
OBLIGATION TO PAY BENEFITS UNDER THE PROGRAM.  AS ALREADY NOTED, FOR
EXAMPLE, ANY DISABILITY OF LESS THAN EIGHT DAYS' DURATION IS NOT
COMPENSABLE, EXCEPT WHEN THE EMPLOYEE IS HOSPITALIZED.  CONVERSELY, NO
BENEFITS ARE PAYABLE FOR ANY SINGLE DISABILITY BEYOND 26 WEEKS. 
FURTHER, DISABILITY IS NOT COMPENSABLE IF IT RESULTS FROM THE
INDIVIDUAL'S COURT COMMITMENT AS A DIPSOMANIAC, DRUG ADDICT, OR SEXUAL
PSYCHOPATH.  /11/  FINALLY, 2626 OF THE UNEMPLOYMENT INSURANCE CODE
EXCLUDES FROM COVERAGE CERTAIN DISABILITIES THAT ARE ATTRIBUTABLE TO
PREGNANCY.  IT IS THIS PROVISION THAT IS AT ISSUE IN THE PRESENT CASE. 

APPELLANT IS THE DIRECTOR OF THE CALIFORNIA DEPARTMENT OF HUMAN
RESOURCES DEVELOPMENT.  /12/  HE IS RESPONSIBLE FOR THE ADMINISTRATION
OF THE STATE'S DISABILITY INSURANCE PROGRAM.  APPELLEES ARE FOUR WOMEN
WHO HAVE PAID SUFFICENT AMOUNTS INTO THE DISABILITY FUND TO BE ELIGIBLE
FOR BENEFITS UNDER THE PROGRAM.  EACH OF THE APPELLEES BECAME PREGNANT
AND SUFFERED EMPLOYMENT DISABILITY AS A RESULT OF HER PREGNANCY.  WITH
RESPECT TO THREE OF THE APPELLEES, CAROLYN AIELLO, AUGUSTINA
ARMENDARIZ, AND ELIZABETH JOHNSON, THE DISABILITIES WERE ATTRIBUTABLE
TO ABNORMAL COMPLICATIONS ENCOUNTERED DURING THEIR PREGNANCIES.  /13/
THE FOURTH, JACQUELINE JARAMILLO, EXPERIENCED A NORMAL PREGNANCY, WHICH
WAS THE SOLE CAUSE OF HER DISABILITY. 

AT ALL TIMES RELEVANT TO THIS CASE, 2626 OF THE UNEMPLOYMENT
INSURANCE CODE PROVIDED: 

     "'DISABILITY' OR 'DISABLED' INCULDES BOTH MENTAL OR PHYSICAL

  ILLNESS AND MENTAL OR PHYSICAL INJURY.  AN INDIVIDUAL SHALL BE

  DEEMED DISABLED IN ANY DAY IN WHICH, BECAUSE OF HIS PHYSICAL OR

  MENTAL CONDITION, HE IS UNABLE TO PERFORM HIS REGULAR OR

  CUSTOMARY WORK.  IN NO CASE SHALL THE TERM 'DISABILITY' OR

  'DISABLED' INCLUDE ANY INJURY OR ILLNESS CAUSED BY OR ARISING IN

  CONNECTION WITH PREGNANCY UP TO THE TERMINATION OF SUCH PREGNANCY

 AND FOR A PERIOD OF 28 DAYS THEREAFTER." 

APPELLANT CONSTRUED AND APPLIED THE FINAL SENTENCE OF THIS STATUTE TO
PRECLUDE THE PAYMENT OF BENEFITS FOR ANY DISABILITY RESULTING FROM
PREGNANCY.  AS A RESULT, THE APPELLEES WERE RULED INELIGIBLE FOR
DISABILITY BENEFITS BY REASON OF THIS PROVISION, AND THEY SUED TO
ENJOIN ITS ENFORCEMENT.  THE DISTRICT COURT, FINDING "THAT THE
EXCLUSION OF PREGNANCY-RELATED DISABILITIES IS NOT BASED UPON A
CLASSIFICATION HAVING A RATIONAL AND SUBSTANTIAL RELATIONSHIP TO A
LEGITIMATE STATE PURPOSE," HELD THAT THE EXCLUSION WAS UNCONSTITUTIONAL
UNDER THE EQUAL PROTECTION CLAUSE.  359 F. SUPP., AT 801. 

SHORTLY BEFORE THE DISTRICT COURT'S DECISION IN THIS CASE, THE
CALIFORNIA COURT OF APPEAL, IN A SUIT BROUGHT BY A WOMAN WHO SUFFERED
AN ECTOPIC PREGNANCY, HELD THAT 2626 DOES NOT BAR THE PAYMENT OF
BENEFITS ON ACCOUNT OF DISABILITY THAT RESULTS FROM MEDICAL
COMPLICATIONS ARISING DURING PREGNANCY.  RENTZER V. UNEMPLOYMENT
INSURANCE APPEALS BOARD, 32 CAL. APP. 3D 604, 108 CAL. RPTR.  336
(1973).  /14/  THE STATE COURT CONSTRUED THE STATUTE TO PRECLUDE ONLY
THE PAYMENT OF BENEFITS FOR DISABILITY ACCOMPANYING NORMAL PREGNANCY. 
/15/  THE APPELLANT ACQUIESCED IN THIS CONSTRUCTION AND ISSUED
ADMINISTRATIVE GUIDELINES THAT EXCLUDE ONLY THE PAYMENT OF "MATERNITY
BENEFITS"--I.E., HOSPITALIZATION AND DISABILITY BENEFITS FOR NORMAL
DELIVERY AND RECUPERATION. 

ALTHOUGH RENTZER WAS DECIDED SOME 10 DAYS BEFORE THE DISTRICT
COURT'S DECISION IN THIS CASE, THER WAS APPARENTLY NO OPPORTUNITY TO
CALL THE COURT'S ATTENTION TO IT.  THE APPELLANT, THEREFORE, ASKED THE
COURT TO RECONSIDER ITS DECISION IN LIGHT OF THE CONSTRUCTION THAT THE
CALIFORNIA COURT OF APPEAL HAD GIVEN TO 2626 IN THE RENTZER CASE.  BY A
DIVIDED VOTE, THE COURT DENIED THE MOTION FOR RECONSIDERATION. 
ALTHOUGH A MORE DEFINITIVE RULING WOULD SURELY HAVE BEEN PREFERABLE, WE
INTERPRET THE DISTRICT COURT'S DENIAL OF THE APPELLANT'S MOTION AS A
DETERMINATION THAT ITS DECISION WAS NOT AFFECTED BY THE LIMITING
CONSTRUCTION GIVEN TO 2626 IN RENTZER. 

BECAUSE OF THE RENTZER DECISION AND THE REVISED ADMINISTRATIVE
GUIDELINES THAT RESULTED FROM IT, THE APPELLEES AIELLO, ARMENDARIZ, AND
JOHNSON, WHOSE DISABILITIES WERE ATTRIBUTABLE TO CAUSES OTHER THAN
NORMAL PREGNANCY AND DELIVERY, BECAME ENTITLED TO BENEFITS UNDER THE
DISABILITY INSURANCE PROGRAM, AND THEIR CLAIMS HAVE SINCE BEEN PAID. 
WITH RESPECT TO APPELLEE JARAMILLO, HOWEVER, WHOSE DISABILITY STEMMED
SOLELY FROM NORMAL PREGNANCY AND CHILDBIRTH, 2626 CONTINUES TO BAR THE
PAYMENT OF ANY BENEFITS.  IT IS EVIDENT THAT ONLY JARAMILLO CONTINUES
TO HAVE A LIVE CONTROVERSY WITH THE APPELLANT AS TO THE VALIDITY OF
2626.  THE CLAIMS OF THE OTHER APPELLEES HAVE BEEN MOOTED BY THE CHANGE
THAT RENTZER WORKED IN THE CONSTRUCTION AND APPLICATION OF THAT
PROVISION.  THUS, THE ISSUE BEFORE THE COURT ON THIS APPEAL IS WHETHER
THE CALIFORNIA DISABILITY INSURANCE PROGRAM INVIDIOUSLY DISCRIMINATES
AGAINST JARAMILLO AND OTHERS SIMILARLY SITUATED BY NOT PAYING INSURANCE
BENEFITS FOR DISABILITY THAT ACCOMPANIES NORMAL PREGNANCY AND
CHILDBIRTH. 

        II 

IT IS CLEAR THAT CALIFORNIA INTENDED TO EXTABLISH THIS BENEFIT
SYSTEM AS AN INSURANCE PROGRAM THAT WAS TO FUNCTION ESSENTIALLY IN
ACCORDANCE WITH INSURANCE CONCEPTS.  /16/  SINCE THE PROGRAM WAS
INSTITUTED IN 1946, IT HAS BEEN TOTALLY SELF-SUPPORTING, NEVER DRAWING
ON GENERAL STATE REVENUES TO FINANCE DISABILITY OR HOSPITAL BENEFITS. 
THE DISABILITY FUND IS WHOLLY SUPPORTED BY THE ONE PERCENT OF WAGES
ANNUALLY CONTRIBUTED BY PARTICIPATING EMPLOYEES.  AT ORAL ARGUMENT,
COUNSEL FOR THE APPELLANT INFORMED US THAT IN RECENT YEARS BETWEEN 90%
AND 103% OF THE REVENUE TO THE DISABILITY FUND HAS BEEN PAID OUT IN
DISABILITY AND HOSPITAL BENEFITS.  THIS HISTORY STRONGLY SUGGESTS THAT
THE 1 PERCENT CONTRIBUTION RATE, IN ADDITION TO BEING EASILY
COMPUTABLE, BEARS A CLOSE AND SUBSTANTIAL RELATIONSHIP TO THE LEVEL OF
BENEFITS PAYABLE AND TO THE DISABILITY RISKS INSURED UNDER THE
PROGRAM. 

OVER THE YEARS CALIFORNIA HAS DEMONSTRATED A STRONG COMMITMENT NOT
TO INCREASE THE CONTRIBUTION RATE ABOVE THE ONE-PERCENT LEVEL.  THE
STATE HAS SOUGHT TO PROVIDE THE BROADEST POSSIBLE DISABILITY PROTECTION
THAT WOULD BE AFFORDABE BY ALL EMPLOYEES, INCLUDING THOSE WITH VERY LOW
INCOMES.  BECAUSE ANY LARGER PERCENTAGE OR ANY FLAT DOLLAR-AMOUNT RATE
OF CONTRIBUTION WOULD IMPOSE AN INCREASINGLY REGRESSIVE LEVY BEARING
MOST HEAVILY UPON THOSE WITH THE LOWEST INCOMES, THE STATE HAS RESISTED
ANY ATTEMPT TO CHANGE THE REQUIRED CONTRIBUTION FROM THE ONE-PERCENT
LEVEL.  THE PROGRAM IS THUS STRUCTURED, IN TERMS OF THE LEVEL OF
BENEFITS AND THE RISKS INSURED, TO MAINTAIN THE SOLVENCY OF THE
DISABILITY FUND AT A ONE-PERCENT ANNUAL LEVEL OF CONTRIBUTION.  /17/ 

IN ORDERING THE STATE TO PAY BENEFITS FOR DISABILITY ACCOMPANYING
NORMAL PREGNANCY AND DELIVERY, THE DISTRICT COURT ACKNOWLEDGED THE
STATE'S CONTENTION "THAT COVERAGE OF THESE DISABILITIES IS SO
EXTRAORDINARILY EXPENSIVE THAT IT WOULD BE IMPOSSIBLE TO MAINTAIN A
PROGRAM SUPPORTED BY EMPLOYEE CONTRIBUTIONS IF THESE DISABILITIES ARE
INCLUDED."  359 F. SUPP., AT 798.  THERE IS CONSIDERABLE DISAGREEMENT
BETWEEN THE PARTIES WITH RESPECT TO HOW GREAT THE INCREASED COSTS WOULD
ACTUALLY BE, BUT THEY WOULD BE CLEARLY BE SUBSTANTIAL.  /18/  FOR
PURPOSES OF ANALYSIS THE DISTRICT COURT ACCEPTED THE STATE'S ESTIMATE,
WHICH WAS IN EXCESS OF $100 MILLION ANNUALLY, AND STATED THAT "IT IS
CLEAR THAT INCLUDING THESE DISABILITIES WOULD NOT DESTROY THE PROGRAM. 
THE INCREASED COSTS COULD BE ACCOMMODATED QUITE EASILY BY MAKING
REASONABLE CHANGES IN THE CONTRIBUTION RATE, THE MAXIMUM BENEFITS
ALLOWABLE, AND THE OTHER VARIABLES AFFECTING THE SOLVENCY OF THE
PROGRAM."  IBID. 

EACH OF THESE "VARIABLES"--THE BENEFIT LEVEL DEEMED APPROPRIATE TO
COMPENSATE EMPLOYEE DISABILITY, THE RISKS SELECTED TO BE INSURED UNDER
THE PROGRAM, AND THE CONTRIBUTION RATE CHOSEN TO MAINTAIN THE SOLVENCY
OF THE PROGRAM AND AT TH SAME TIME TO PERMIT LOW-INCOME EMPLOYEES TO
PARTICIPATE WITH MINIMAL PERSONAL SACRIFICE--REPRESENTS A POLICY
DETERMINATION BY THE STATE.  THE ESSENTIAL ISSUE IN THIS CASE IS
WHETHER THE EQUAL PROTECTION CLAUSE REQUIRES SUCH POLICIES TO BE
SACRIFICED OR COMPROMISED IN ORDER TO FINANCE THE PAYMENT OF BENEFITS
TO THOSE WHOSE DISABILITY IS ATTRIBUTABLE TO NORMAL PREGNANCY AND
DELIVERY. 

WE CANNOT AGREE THAT THE EXCLUSION OF THIS DISABILITY FROM COVERAGE
AMOUNTS TO INVIDIOUS DISCRIMINATION UNDER THE EQUAL PROTECTION CLAUSE. 
CALIFORNIA DOES NOT DISCRIMINATE WITH RESPECT TO THE PERSONS OR GROUPS
WHICH ARE ELIGIBLE FOR DISABILITY INSURANCE PROTECTION UNDER THE
PROGRAM.  THE CLASSIFICATION CHALLENGED IN THIS CASE RELATES TO THE
ASSERTED UNDERINCLUSIVENESS OF THE SET OF RISKS THAT THE STATE HAS
SELECTED TO INSURE.  ALTHOUGH CALIFORNIA HAS CREATED A PROGRAM TO
INSURE MOST RISKS OF EMPLOYMENT DISABILITY, IT HAS NOT CHOSEN TO INSURE
ALL SUCH RISK, AND THIS DECISION IS REFLECTED IN THE LEVEL OF ANNUAL
CONTRIBUTIONS EXACTED FORM PARTICIPATING EMPLOYEES.  THIS COURT HAS
HELD THAT, CONSISTENTLY WITH THE EQUAL PROTECTION CLAUSE, A STATE "MAY
TAKE ONE STEP AT A TIME, ADDRESSING ITSELF TO THE PHASE OF THE PROBLEM
WHICH SEEMS MOST ACUTE TO THE LEGISLATIVE MIND.  . . . THE LEGISLATURE
MAY SELECT ONE PHASE OF ONE FIELD AND APPLY A REMEDY THERE, NEGLECTING
THE OTHERS.  . . ."  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489
(1955); JEFFERSON V. HACKNEY, 406 U.S. 535 (1972).  PARTICULARLY WITH
RESPECT TO SOCIAL WELFARE PROGRAMS, SO LONG AS THE LINE DRAWN BY THE
STATE IS RATIONALLY SUPPORTABLE, THE COURTS WILL NOT INTERPOSE THEIR
JUDGMENT AS TO THE APPROPRIATE STOPPING POINT.  "THE EQUAL PROTECTION
CLAUSE DOES NOT REQUIRE THAT A STATE MUST CHOOSE BETWEEN ATTACKING
EVERY ASPECT OF A PROBLEM OR NOT ATTACKING THE PROBLEM AT ALL." 
DANDRIDGE V. WILLIAMS, 397 U.S. 471, 486 - 487 (1970). 

THE DISTRICT COURT SUGGESTED THAT MODERATE ALTERATIONS IN WHAT IT
REGARDED AS "VARIABLES" OF THE DISABILITY INSURANCE PROGRAM COULD BE
MADE TO ACCOMMODATE THE SUBSTANTIAL EXPENSE REQUIRED TO INCLUDE NORMAL
PREGNANCY WITHIN THE PROGRAM'S PROTECTION.  THE SAME CAN BE SAID,
HOWEVER, WITH RESPECT TO THE OTHER EXPENSIVE CLASS OF DISABILITIES THAT
ARE EXCLUDED FROM COVERAGE--SHORT-TERM DISABILITIES.  IF THE EQUAL
PROTECTION CLAUSE WERE THOUGHT TO COMPEL DISABILITY PAYMENTS FOR NORMAL
PREGNANCY, IT IS HARD TO PERCEIVE WHY IT WOULD NOT ALSO COMPEL PAYMENTS
FOR SHORT-TERM DISABILITIES SUFFERED BY PARTICIPATING EMPLOYEES.  /19/ 
IT IS EVIDENT THAT A TOTALLY COMPREHENSIVE PROGRAM WOULD BE
SUBSTANTIALLY MORE COSTLY THAN THE PRESENT PROGRAM AND WOULD INEVITABLY
REQUIRE STATE SUBSIDY, A HIGHER RATE OF EMPLOYEE CONTRIBUTION, A LOWER
SCALE OF BENEFITS FOR THOSE SUFFERING INSURED DISABILITIES, OR SOME
COMBINATION OF THESE MEASURES.  THERE IS NOTHING IN THE CONSTITUTION,
HOWEVER, THAT REQUIRES THE STATE TO SUBORDINATE OR COMPROMISE ITS
LEGITIMATE INTERESTS SOLELY TO CREATE A MORE COMPREHENSIVE SOCIAL
INSURANCE PROGRAM THAN IT ALREADY HAS. 

THE STATE HAS A LEGITIMATE INTEREST IN MAINTAINING THE SELF
SUPPORTING NATURE OF ITS INSURANCE PROGRAM.  SIMILARLY, IT HAS AN
INTEREST IN DISTRIBUTING THE AVAILABLE RESOURCES IN SUCH A WAY AS TO
KEEP BENEFIT PAYMENTS AT AN ADEQUATE LEVEL FOR DISABILITIES THAT ARE
COVERED, RATHER THAN TO COVER ALL DISABILITIES INADEQUATELY.  FINALLY,
CALIFORNIA HAS A LEGITIMATE CONCERN IN MAINTAINING THE CONTRIBUTION
RATE AT A LEVEL THAT WILL NOT UNDULY BURDEN PARTICIPATING EMPLOYEES,
PARTICULARLY LOW-INCOME EMPLOYEES WHO MAY BE MOST IN NEED OF THE
DISABILITY INSURANCE. 

THESE POLICIES PROVIDE AN OBJECTIVE AND WHOLLY NON-INVIDIOUS BASIS
FOR THE STATE'S DECISION NOT TO CREATE A MORE COMPREHENSIVE INSURANCE
PROGRAM THAN IT HAS.  THERE IS NO EVIDENCE IN THE RECORD THAT THE
SELECTION OF THE RISKS INSURED BY THE PROGRAM WORKED TO DISCRIMINATE
AGAINST ANY DEFINABLE GROUP OR CLASS IN TERMS OF THE AGGREGATE RISK
PROTECTION DERIVED BY THAT GROUP OR CLASS FROM THE PROGRAM.  /20/
THERE IS NO RISK FROM WHICH MEN ARE PROTECTED AND WOMEN ARE NOT. 
LIKEWISE, THERE IS NO RISK FROM WHICH WOMEN ARE PROTECTED AND MEN ARE
NOT.  /21/ 

THE APPELLEE SIMPLY CONTENDS THAT, ALTHOUGH SHE HAS RECEIVED
INSURANCE PROTECTION EQUIVALENT TO THAT PROVIDED ALL OTHER
PARTICIPATING EMPLOYEES, SHE HAS SUFFERED DISCRIMINATION BECAUSE SHE
ENCOUNTERED A RISK THAT WAS OUTSIDE THE PROGRAM'S PROTECTION.  FOR THE
REASONS WE HAVE STATED, WE HOLD THAT THIS CONTENTION IS NOT A VALID ONE
UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

THE STAY HERETOFORE ISSUED BY THE COURT IS VACATED, AND THE JUDGMENT
OF THE DISTRICT COURT IS

           REVERSED. 

/1/  THIS LITIGATION BEGAN AS TWO SEPARATE SUITS ON BEHALF OF
CALIFORNIA EMPLOYEES WHO HAD PAID SUFFICIENT AMOUNTS INTO THE
DISABILITY FUND TO BE ELIGIBLE GENERALLY FOR BENEFITS UNDER THE
PROGRAM.  CAROLYN AIELLO BROUGHT HER SUIT AGAINST APPELLANT IN THE
FEDERAL DISTRICT COURT.  AUGUSTINA ARMENDARIZ, ELIZABETH JOHNSON, AND
JACQUELINE JARAMILLO JOINTLY INITIATED THEIR SUIT AS A PETITION FOR A
WRIT OF MANDATE IN THE CALIFORNIA SUPREME COURT.  BOTH SUITS WERE
BROUGHT AS CLASS ACTIONS AND ASSERTED THE UNCONSTITUTIONALITY OF 2626
OF THE CALIFORNIA UNEMPLOYMENT INSURANCE CODE UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THE APPELLANT REMOVED
THE STATE COURT SUIT TO THE FEDERAL DISTRICT COURT, WHERE THE TWO
ACTIONS WERE CONSOLIDATED.  SEE 28 U.S.C. 1441(B). 

/2/ CAL. UNEMP.  INS.  CODE 3251 - 3254. 

/3/  984, 985, 2901. 

/4/  3001. 

/5/  2652. 

/6/  2655.  THIS PROVISION HAS BEEN AMENDED, EFFECTIVE JULY 1, 1974,
TO PROVIDE FOR A MAXIMUM WEEKLY BENEFIT AMOUNT OF $119. 

/7/  2627(B) AND 2802. 

/8/  2801. 

/9/  2653. 

/10/  2801.  SECTION 2608 PROVIDES A FORMULA FOR DETERMINING WHETHER
A DISABLING CONDITION THAT IS INTERMITTENT IS ONE DISABILITY OR MORE
THAN ONE DISABILITY FOR PURPOSES OF APPLYING THE LIMITATIONS IN 2653
AND 2801 ON THE MAXIMUM AMOUNT OF BENEFITS PAYABLE. 

/11/  2678.  SECTIONS 2675 - 2677 CONTAIN VARIOUS OTHER FACTORS THAT
WILL DISQUALIFY AN EMPLOYEE FROM RECEIVING BENEFITS BUT THAT RELATE TO
MATTERS OTHER THAN THE NATURE OF THE DISABLING CONDITION. 

/12/  EFFECTIVE JULY 1, 1974, THE DEPARTMENT OF HUMAN RESOURCES
DEVELOPMENT WILL BE RENAMED THE DEPARTMENT OF EMPLOYMENT DEVELOPMENT. 
SEE CAL. UNEMP.  INS.  CODE 301 ET SEQ. 

/13/  AIELLO AND JOHNSON SUFFERED ESTOPIC AND TUBAL PREGNANCIES,
RESPECTIVELY, WHICH REQUIRED SURGERY TO TERMINATE THE PREGNANCIES. 
ARMENDARIZ SUFFERED A MISCARRIAGE. 

/14/  IN AN EARLIER DECISION, THE COURT OF APPEAL HAD SUSTAINED 2626
AGAINST AN EQUAL PROTECTION CHALLENGE BY A FEMALE EMPLOYEE WHO HAD
SUFFERED DISABILITY AS A RESULT OF NORMAL PREGNANCY AND DELIVERY. 
CLARK V. CALIFORNIA EMPLOYMENT STABILIAATION COMM'N, 166 CAL. APP. 2D
326, 332 P. 2D 716 (1958). 

/15/  SECTION 2626 WAS LATER AMENDED, AND A NEW 2626.2 WAS ADDED, IN
ORDER CLEARLY TO REFLECT THIS INTERPRETATION.  THE TWO SECTIONS NOW
PROVIDE AS FOLLOWS:  2626 "'DISABILITY' OR 'DISABLED' INCLUDES BOTH
MENTAL OR PHYSICAL ILLNESS, MENTAL OR PHYSICAL INJURY, AND, TO THE
EXTENT SPECIFIED IN SECTION 2626.2, PREGNANCY.  AN INDIVIDUAL SHALL BE
DEEMED DISABLED IN ANY DAY IN WHICH, BECAUSE OF HIS PHYSICAL OR MENTAL
CONDITION, HE IS UNABLE TO PERFORM HIS REGULAR OR CUSTOMARY WORK." 
2626.2 "BENEFITS RELATING TO PREGNANCY SHALL BE PAID UNDER THIS PART
ONLY IN ACCORDANCE WITH THE FOLLOWING: 

"(A) DISABILITY BENEFITS SHALL BE PAID UPON A DOCTOR'S CERTIFICATION
THAT THE CLAIMANT IS DISABLED BECAUSE OF AN ABNORMAL AND INVOLUNTARY
COMPLICATION OF PREGNANCY, INCLUDING BUT NOT LIMITED TO:  PUERPERAL
INFECTION, ECLAMPSIA, CAESARIAN SECTION DELIVERY, ECTOPIC PREGNANCY,
AND TOXEMIA. 

"(B) DISABILITY BENEFITS SHALL BE PAID UPON A DOCTOR'S CERTIFICATION
THAT A CONDITION POSSIBLY ARISING OUT OF PREGNANCY WOULD DISABLE THE
CLAIMANT WITHOUT REGARD TO THE PREGNANCY, INCLUDING BUT NOT LIMITED TO:
ANEMIA, DIABETES, EMBOLISM, HEART DISEASE, HYPERTENSION, PHLEBITIS,
PHLEBOTHROMBOSIS, PYELONEPHRITIS, THROMBOPHLEBITIS, VAGINITIS, VARICOSE
VEINS, AND VENOUS THROMBOSIS."  THESE AMENDMENTS TOOK EFFECT ON JANUARY
1, 1974. 

/16/  IN HIS MESSAGE TO THE STATE LEGISLATURE PROPOSING THE CREATION
OF THIS PROGRAM, GOVERNOR EARL WARREN STATED: 

"IT IS NOT POSSIBLE FOR EMPLOYEES TO OBTAIN FROM PRIVATE INSURANCE
COMPANIES PROTECTION AGAINST LOSS OF WAGES OR SALARY DURING SICKNESS AS
ADEQUATELY OR CHEAPLY AS THAT PROTECTION COULD BE OBTAINED BY DIVERTING
THEIR PRESENT 1 PER CENT CONTRIBUTION FOR THE SUPPORT OF A DISABILITY
BENEFITS PROGRAM."  CALIFORNIA SENATE JOURNAL, JAN. 23, 1946, P. 229. 
THE CALIFORNIA SUPREME COURT HAS CONCLUDED "THAT THE LEGISLATIVE
PURPOSE IN PROVIDING UNEMPLOYMENT DISABILITY BENEFITS . . . WAS TO
PROVIDE AN INSURANCE PROGRAM TO PAY BENEFITS TO INDIVIDUALS WHO ARE
UNEMPLOYED BECAUSE OF ILLNESS OR INJURY.  . . ."  GARCIA V. INDUSTRIAL
ACCIDENT COMM'N, 41 CAL.2D 689, 692, 263 P.2D 8, 10 (1953) (INTERNAL
QUOTATION MARKS OMITTED). 

/17/  SECTION 2604 OF THE UNEMPLOYMENT INSURANCE CODE VESTS THE
GOVERNOR AND THE APPELLANT WITH AUTHORITY TO MODIFY THE PAYMENT OF
BENEFITS AND TO INCREASE THE WAITING TIME FOR ELIGIBILITY IF SUCH STEPS
ARE NECESSARY TO FORESTALL INSOLVENCY OF THE DISABILITY FUND.  BUT
NEITHER THE GOVERNOR NOR THE APPELLANT IS AUTHORIZED TO INCREASE THE
CONTRIBUTION RATE UNDER ANY CIRCUMSTANCES. 

/18/  APPELLANT'S ESTIMATE OF THE INCREASED COST OF INCLUDING NORMAL
PREGNANCY WITHIN THE INSURED RISKS HAS VARIED BETWEEN $120.2 MILLION
AND $131 MILLION ANNUALLY, OR BETWEEN A 33% AND 36% INCREASE IN THE
PRESENT AMOUNT OF BENEFITS PAID UNDER THE PROGRAM.  ON THE OTHER HAND,
APPELLEE CONTENDS THAT THE INCREASED COST WOULD BE $48.9 MILLION
ANNUALLY, OR A 12% INCREASE OVER PRESENT EXPENDITURES. 

/19/  THE SAME COULD BE SAID OF DISABILITIES CONTINUING BEYOND 26
WEEKS. 

/20/  THE DISSENTING OPINION TO THE CONTRARY, THIS CASE IS THUS A
FAR CRY FROM CASES LIKE REED V. REED, 404 U.S. 71 (1971), AND FRONTIERO
V. RICHARDSON, 411 U.S. 677 (1973), INVOLVING DISCRIMINATION BASED UPON
GENDER AS SUCH.  THE CALIFORNIA INSURANCE PROGRAM DOES NOT EXCLUDE
ANYONE FROM BENEFIT ELIGIBILITY BECAUSE OF GENDER BUT MERELY REMOVES
ONE PHYSICAL CONDITION--PREGNANCY--FROM THE LIST OF COMPENSABLE
DISABILITIES.  WHILE IT IS TRUE THAT ONLY WOMEN CAN BECOME PREGNANT, IT
DOES NOT FOLLOW THAT EVERY LEGISLATIVE CLASSIFICATION CONCERNING
PREGNANCY IS A SEX-BASED CLASSIFICATION LIKE THOSE CONSIDERED IN REED,
SUPRA, AND FRONTIERO, SUPRA.  NORMAL PREGNANCY IS AN OBJECTIVELY
IDENTIFIABLE PHYSICAL CONDITION WITH UNIQUE CHARACTERISTICS.  ABSENT A
SHOWING THAT DISTINCTIONS INVOLVING PREGNANCY ARE MERE PRETEXTS
DESIGNED TO EFFECT AN INVIDIOUS DISCRIMINATION AGAINST THE MEMBERS OF
ONE SEX OR THE OTHER, LAWMAKERS ARE CONSTITUTIONALLY FREE TO INCLUDE OR
EXCLUDE PREGNANCY FROM THE COVERAGE OF LEGISLATION SUCH AS THIS ON ANY
REASONABLE BASIS, JUST AS WITH RESPECT TO ANY OTHER PHYSICAL
CONDITION. 

THE LACK OF IDENTITY BETWEEN THE EXCLUDED DISABILITY AND GENDER AS
SUCH UNDER THIS INSURANCE PROGRAM BECOMES CLEAR UPON THE MOST CURSORY
ANALYSIS.  THE PROGRAM DIVIDES POTENTIAL RECIPIENTS INTO TWO GROUPS-
PREGNANT WOMEN AND NONPREGNANT PERSONS.  WHILE THE FIRST GROUP IS
EXCLUSIVELY FEMALE, THE SECOND INCLUDES MEMBERS OF BOTH SEXES.  THE
FISCAL AND ACTUARIAL BENEFITS OF THE PROGRAM THUS ACCRUE TO MEMBERS OF
BOTH SEXES. 

/21/  INDEED, THE APPELLANT SUBMITTED TO THE DISTRICT COURT DATA THAT
INDICATED THAT BOTH THE ANNUAL CLAIM RATE AND THE ANNUAL CLAIM COST ARE
GREATER FOR WOMEN THAN FOR MEN.  AS THE DISTRICT COURT ACKNOWLEDGED,
"WOMEN CONTRIBUTE ABOUT 28 PERCENT OF THE TOTAL DISABILITY INSURANCE
FUND AND RECEIVE BACK ABOUT 38 PERCENT OF THE FUND IN BENEFITS."  359
F.SUPP.  792, 800.  SEVERAL AMICI CURIAE HAVE REPRESENTED TO THE COURT
THAT THEY HAVE HAD A SIMILAR EXPERIENCE UNDER PRIVATE DISABILITY
INSURANCE PROGRAMS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

RELYING UPON DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), AND
JEFFERSON V. HACKNEY, 406 U.S. 535 (1972).  THE COURT TODAY REJECTS
APPELLEES' EQUAL PROTECTION CLAIM AND UPHOLDS THE EXCLUSION OF NORMAL
PREGNANCY-RELATED DISABILITIES FROM COVERAGE UNDER CALIFORNIA'S
DISABILITY INSURANCE PROGRAM ON THE GROUND THAT THE LEGISLATIVE
CLASSIFICATION RATIONALLY PROMOTES THE STATE'S LEGITIMATE COST-SAVING
INTERESTS IN "MAINTAINING THE SELF-SUPPORTING NATURE OF ITS INSURANCE
PROGRAM(,) . . . DISTRIBUTING THE AVAILABLE RESOURCES IN SUCH A WAY AS
TO KEEP BENEFIT PAYMENTS AT AN ADEQUATE LEVEL FOR DISABILITIES THAT ARE
COVERED, . . . AND MAINTAINING THE CONTRIBUTION RATE AT A LEVEL THAT
WILL NOT UNDULY BURDEN PARTICIPATING EMPLOYEES . . . ."  ANTE, AT 496. 
BECAUSE I BELIEVE THAT REED V. REED, 404 U.S. 71 (1971), AND FRONTIERO
V. RICHARDSON, 411 U.S. 677 (1973), MANDATE A STRICTER STANDARD OF
SCRUTINY WHICH THE STATE'S CLASSIFICATION FAILS TO SATISFY, I
RESPECTFULLY DISSENT. 

CALIFORNIA'S DISABILITY INSURANCE PROGRAM WAS ENACTED TO SUPPLEMENT
THE STATE'S UNEMPLOYMENT INSURANCE AND WORKMEN'S COMPENSATION PROGRAMS
BY PROVIDING BENEFITS TO WAGE EARNERS TO CUSHION THE ECONOMIC EFFECTS
OF INCOME LOSS AND MEDICAL EXPENSES RESULTING FROM SICKNESS OR INJURY. 
THE LEGISLATURE'S INTENT IN ENACTING THE PROGRAM WAS EXPRESSED CLEARLY
IN 2601 OF THE UNEMPLOYMENT INSURANCE CODE: 

     "THE PURPOSE OF THIS PART IS TO COMPENSATE IN PART FOR THE
WAGE

  LOSS SUSTAINED BY INDIVIDUALS UNEMPLOYED BECAUSE OF SICKNESS OR

  INJURY AND TO REDUCE TO A MINIMUM THE SUFFERING CAUSED BY

  UNEMPLOYMENT RESULTING THEREFROM.  THIS PART SHALL BE CONSTRUED

  LIBERALLY IN AID OF ITS DECLARED PURPOSE TO MITIGATE THE EVILS

  AND BURDENS WHICH FALL ON THE UNEMPLOYED AND DISABLED WORKER AND

  HIS FAMILY." 

TO ACHIEVE THE ACT'S BROAD HUMANITARIAN GOALS, THE LEGISLATURE
FASHIONED A POOLED-RISK DISABILITY FUND COVERING ALL EMPLOYEES AT THE
SAME RATE OF CONTRIBUTION, /1/  REGARDLESS OF INDIVIDUAL RISK,.  /2/
THE ONLY REQUIREMENT THAT MUST BE SATISFIED BEFORE AN EMPLOYEE BECOMES
ELIGIBLE TO RECEIVE DISABILITY BENEFITS IS THAT THE EMPLOYEE MUST HAVE
CONTRIBUTED ONE PERCENT OF A MINIMUM INCOME OF $300 DURING A ONE-YEAR
BASE PERIOD.  CAL. UNEMP.  INS.  CODE 2652.  THE "BASIC BENEFITS,"
VARYING FROM $25 TO $119 PER WEEK, DEPENDING UPON THE EMPLOYEE'S BASE
PERIOD EARNINGS, BEGIN ON THE EIGHTH DAY OF DISABILIRY OR ON THE FIRST
DAY OF HOSPITALIZATION.  2655, 2627(B), 2802.  BENEFITS ARE PAYABLE FOR
A MAXIMUM OF 26 WEEKS, BUT MAY NOT EXCEED ONE-HALF OF THE EMPLOYEE'S
TOTAL BASE-PERIOD EARNINGS.  2653.  FINALLY, COMPENSATION IS PAID FOR
VIRTUALLY ALL DISABLING CONDITIONS WITHOUT REGARD TO COST,
VOLUNTARINESS, UNIQUENESS, PREDICTABILITY, OR "NORMALCY" OF THE
DISABILITY.  /3/  THUS, FOR EXAMPLE, WORKERS ARE COMPENSATED FOR COSTLY
DISABILITIES SUCH AS HEART ATTACKS, VOLUNTARY DISABILITIES SUCH AS
COSMETIC SURGERY OR STERILIZATION, DISABILITIES UNIQUE TO SEX OR RACE
SUCH AS PROSTATECTOMIES OR SICKLE-CELL ANEMIA, PRE-EXISTING CONDITIONS
INEVITABLY RESULTING IN DISABILITY SUCH AS DEGENERATIVE ARTHRITIS OR
CATARACTS, AND "NORMAL" DISABILITIES SUCH AS REMOVAL OF IRRITATING
WISDOM TEETH OR OTHER ORTHODONTIA. 

DESPITE THE ACT'S BROAD GOALS AND SCOPE OF COVERAGE, COMPENSATION IS
DENIED FOR DISABILITIES SUFFERED IN CONNECTION WITH A "NORMAL"
PREGNANCY--DISABILITIES SUFFERED ONLY BY WOMEN.  CAL. UNEMP.  INS. 
CODE 2626, 2626.2 (SUPP. 1974).  DISABILITIES CAUSED BY PREGNANCY,
HOWEVER, LIKE OTHER PHYSICALLY DISABLING CONDITIONS COVERED BY THE ACT,
REQUIRE MEDICAL CARE, OFTEN INCLUDE HOSPITALIZATION, ANESTHESIA AND
SURGICAL PROCEDURES, AND MAY INVOLVE GENUINE RISK TO LIFE.  /4/
MOREOVER, THE ECONOMIC EFFECTS CAUSED BY PREGNANCY-RELATED DISABILITIES
ARE FUNCTIONALLY INDISTINGUISHABLE FROM THE EFFECTS CAUSED BY ANY OTHER
DISABILITY:  WAGES ARE LOST DUE TO A PHYSICAL INABILITY TO WORK, AND
MEDICAL EXPENSES ARE INCURRED FOR THE DELIVERY OF THE CHILD AND FOR
POSTPARTUM CARE.  /5/  IN MY VIEW, BY SINGLING OUT FOR LESS FAVORABLE
TREATMENT A GENDER-LINKED DISABILITY PECULIAR TO WOMEN, THE STATE HAS
CREATED A DOUBLE STANDARD FOR DISABILITY COMPENSATION:  A LIMITATION IS
IMPOSED UPON THE DISABILITIES FOR WHICH WOMEN WORKERS MAY RECOVER,
WHILE MEN RECEIVE FULL COMPENSATION FOR ALL DISABILITIES SUFFERED,
INCLUDING THOSE THAT AFFECT ONLY OR PRIMARILY THEIR SEX, SUCH AS
PROSTATECTOMIES, CIRCUMCISION, HEMOPHILIA, AND GOUT.  IN EFFECT, ONE
SET OF RULES IS APPLIED TO FEMALES AND ANOTHER TO MALES.  SUCH
DISSIMILAR TREATMENT OF MEN AND WOMEN, ON THE BASIS OF PHYSICAL
CHARACTERISTICS INEXTRICABLY LINKED TO ONE SEX, INEVITABLY CONSTITUTES
SEX DISCRIMINATION. 

THE SAME CONCLUSION HAS BEEN REACHED BY THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, THE FEDERAL AGENCY CHARGED WITH ENFORCEMENT OF
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED BY THE EQUAL
EMPLOYMENT OPPORTUNITY ACT OF 1972, 42 U.S.C. 2000E ET DEQ.  (1970)
ED., SUPP. II), WHICH PROHIBITS EMPLOYMENT DISCRIMINATION ON THE BASIS
OF SEX.  IN GUIDELINES ISSUED PURSUANT TO TITLE VII AND DESIGNED TO
PROHIBIT THE DISPARATE TREATMENT OF PREGNANCY DISABILITIES IN THE
EMPLOYMENT CONTEXT, /6/  THE EEOC HAS DECLARED THAT: 

     "DISABILITIES CAUSED OR CONTRIBUTED TO BY PREGNANCY,

  MISCARRIAGE, ABORTION, CHILDBIRTH, AND RECOVERY THEREFROM ARE,

  FOR ALL JOB-RELATED PURPOSES, TEMPORARY DISABILITIES AND SHOULD

  BE TREATED AS SUCH UNDER ANY HEALTH OR TEMPORARY DISABILITY

  INSURANCE OR SICK LEAVE PLAN AVAILABLE IN CONNECTION WITH

  EMPLOYMENT. 

##HC502 WRITTEN AND UNWRITTEN EMPLOYMENT POLICIES AND PRACTICES

  INVOLVING MATTERS SUCH AS THE COMMENCEMENT AND DURATION OF LEAVE,

  THE AVAILABILITY OF EXTENSIONS, THE ACCRUAL OF SENIORITY AND

  OTHER BENEFITS AND PRIVILEGES, REINSTATEMENT, AND PAYMENT UNDER

  ANY HEALTH OR TEMPORARY DISABILITY INSURANCE OR SICK LEAVE PLAN,

  FORMAL OR INFORMAL, SHALL BE APPLIED TO DISABILITY DUE TO

  PREGNANCY OR CHILDBIRTH ON THE SAME TERMS AND CONDITIONS AS THEY

  ARE APPLIED TO OTHER TEMPORARY DISABILITIES."  29 CFR 1604.10

  (B).  /7/ 

IN THE PAST, WHEN A LEGISLATIVE CLASSIFICATION HAS TURNED ON GENDER,
THE COURT HAS JUSTIFIABLY APPLIED A STANDARD OF JUDICIAL SCRUTINY MORE
STRICT THAN THAT GENERALLY ACCORDED ECONOMIC OR SOCIAL WELFARE
PROGRAMS.  COMPARE REED V. REED, 404 U.S. 71 (1971), AND FRONTIERO V.
RICHARDSON, 411 U.S. 677 (1973), AND JEFFERSON V. HACKNEY, 406 U.S. 535
(1972).  YET, BY ITS DECISION TODAY, THE COURT APPEARS WILLING TO
ABANDON THAT HIGHER STANDARD OF REVIEW WITHOUT SATISFACTORILY
EXPLAINING WHAT DIFFERENTIATES THE GENDER-BASED CLASSIFICATION EMPLOYED
IN THIS CASE FROM THOSE FOUND UNCONSTITUTIONAL IN REED AND FRONTIERO. 
THE COURT'S DECISION THREATENS TO RETURN MEN AND WOMEN TO A TIME WHEN
"TRADITIONAL" EQUAL PROTECTION ANALYSIS SUSTAINED LEGISLATIVE
CLASSIFICATIONS THAT TREATED DIFFERENTLY MEMBERS OF A PARTICULAR SEX
SOLELY BECAUSE OF THEIR SEX.  SEE, E.G., MULLER V. OREGON, 208 U.S. 412
(1908); GOESAERT V. CLEARY, 335 U.S. 464 (1948); HOYT V. FLORIDA, 368
U.S. 57 (1961). 

I CANNOT JOIN THE COURT'S APPARENT RETREAT.  I CONTINUE TO ADHERE TO
MY VIEW THAT "CLASSIFICATIONS BASED UPON SEX, LIKE CLASSIFICATIONS
BASED UPON RACE, ALIENAGE, OR NATIONAL ORIGIN, ARE INHERENTLY SUSPECT,
AND MUST THEREFORE BE SUBJECTED TO STRICT JUDICIAL SCRUTINY." 
FRONTIERO V. RICHARDSON, SUPRA, AT 688.  WHEN, AS IN THIS CASE, THE
STATE EMPLOYS A LEGISLATIVE CLASSIFICATION THAT DISTINGUISHES BETWEEN
BENEFICIARIES SOLELY BY REFERENCE TO GENDER-LINKED DISABILITY RISKS,
"THE COURT IS NOT . . . FREE TO SUSTAIN THE STATUTE ON THE GROUND THAT
IT RATIONALLY PROMOTES LEGITIMATE GOVERNMENTAL INTERESTS; RATHER, SUCH
SUSPECT CLASSIFICATIONS CAN BE SUSTAINED ONLY WHEN THE STATE BEARS THE
BURDEN OF DEMONSTRATING THAT THE CHALLENGED LEGISLATION SERVES
OVERRIDING OR COMPELLING INTERESTS THAT CANNOT BE ACHIEVED EITHER BY A
MORE CAREFULLY TAILORED LEGISLATIVE CLASSIFICATION OR BY THE USE OF
FEASIBLE, LESS DRASTIC MEANS."  KAHN V. SHEVIN, 416 U.S. 3518 357 - 358
(1974) (BRENNAN, J., DISSENTING). 

THE STATE HAS CLEARLY FAILED TO MEET THAT BURDEN IN THE PRESENT
CASE.  THE ESSENCE OF THE STATE'S JUSTIFICATION FOR EXCLUDING
DISABILITIES CAUSED BY A NORMAL PREGNANCY FROM ITS DISABILITY
COMPENSATION SCHEME IS THAT COVERING SUCH DISABILITIES WOULD BE TOO
COSTLY.  TO BE SURE, AS PRESENTLY FUNDED, INCLUSION OF NORMAL
PREGNANCIES "WOULD BE SUBSTANTIALLY MORE COSTLY THAN THE PRESENT
PROGRAM."  /8/  ANTE, AT 495.  THE PRESENT LEVEL OF BENEFITS FOR
INSURED DISABILITIES COULD NOT BE MAINTAINED WITHOUT INCREASING THE
EMPLOYEE CONTRIBUTION RATE, RAISING OR LIFTING THE YEARLY CONTRIBUTION
CEILING, OR SECURING STATE SUBSIDIES.  BUT WHATEVER ROLE SUCH MONETARY
CONSIDERATIONS MAY PLAY IN TRADITIONAL EQUAL PROTECTION ANALYSIS, THE
STATE'S INTEREST IN PRESERVING THE FISCAL INTEGRITY OF ITS DISABILITY
INSURANCE PROGRAM SIMPLY CANNOT RENDER THE STATE'S USE OF A SUSPECT
CLASSIFICATION CONSTITUTIONAL.  FOR WHILE "A STATE HAS A VALID INTEREST
IN PRESERVING THE FISCAL INTEGRITY OF ITS PROGRAMS(,) . . . A STATE MAY
NOT ACCOMPLICH SUCH A PURPOSE BY INVIDIOUS DISTINCTIONS BETWEEN CLASSES
OF ITS CITIZENS.  . . . THE SAVING OF WELFARE COSTS CANNOT JUSTIFY AN
OTHERWISE INVIDIOUS CLASSIFICATION."  SHAPIRO V. THOMPSON, 394 U.S.
618, 633 (1969).  THUS, WHEN A STATUTORY CLASSIFICATION IS SUBJECT TO
STRICT JUDICIAL SCRUTINY, THE STATE "MUST DO MORE THAN SHOW THAT
DENYING BENEFITS TO THE EXCLUDED CLASS SAVES MONEY."  MEMORIAL HOSPITAL
V. MARICOPA COUNTY, 415 U.S. 520, 263 (1974).  SEE ALSO GRAHAM V.
RICHARDSON, 403 U.S. 365, 374 - 375 (1971).  /9/ 

MOREOVER, CALIFORNIA'S LEGITIMATE INTEREST IN FISCAL INTEGRITY COULD
EASILY HAVE BEEN ACHIEVED THROUGH A VARIETY OF LESS DRASTIC, SEXUALLY
NEUTRAL MEANS.  AS THE DISTRICT COURT OBSERVED: 

"EVEN USING THE STATE'S ESTIMATE OF THE COST OF EXPENDING THE
PROGRAM TO INCLUDE PREGNANCY-RELATED DISABILITIES, HOWEVER, IT IS CLEAR
THAT INCLUDING THESE DISABILITIES WOULD NOT DESTROY THE PROGRAM.  THE
INCREASED COSTS COULD BE ACCOMMODATED QUITE EASILY BY MAKING REASONABLE
CHANGES IN THE CONTRIBUTION RATE, THE MAXIMUM BENEFITS ALLOWABLE, AND
THE OTHER VARIABLES AFFECTING THE SOLVENCY OF THE PROGRAM.  FOR
EXAMPLE, THE ENTIRE COST INCREASE ESTIMATED BY DEFENDANT COULD BE MET
BY REQUIRING WORKERS TO CONTRIBUTE AN ADDITIONAL AMOUNT OF
APPROXIMATELY .364 PERCENT OF THEIR SALARY AND INCREASING THE MAXIMUM
ANNUAL CONTRIBUTION TO ABOUT $119."  359 F. SUPP. 792, 798. 

I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

/1/  AN EMPLOYEE MUST CONTRIBUTE ONE PER CENT OF HIS ANNUAL WAGES, NOT
EXCEEDING A TOTAL CONTRIBUTION OF $85 PER YEAR ($90 FOR CALENDAR YEAR
1974 AND THEREAFTER).  CAL. UNEMP.  INS.  CODE 984, 985, 2901.  THE
CEILING ON WAGES SUBJECT TO THE ONE PERCENT CONTRIBUTION RATE, OF
COURSE, INTRODUCES A REGRESSIVE ELEMENT IN THE CONTRIBUTION SCHEME. 
PERHAPS IN RECOGNITION OF THIS FACT, THE DISABILITY BENEFITS SCHEDULE
IS DESIGNED TO GRANT PROPORTIONATELY GREATER BENEFITS TO MORE POORLY
PAID WORKERS.  ID., 2655. 

/2/  CALIFORNIA DELIBERATELY DECIDED NOT TO CLASSIFY EMPLOYEES ON
THE BASIS OF ACTUARIAL DATA.  THUS, THE CONTRIBUTION RATE FOA A
PARTICULAR GROUP OF EMPLOYEES IS NOT TIED TO THAT GROUP'S PREDICTED
RATE OF DISABILITY CLAIMS.  359 F. SUPP. 792, 800. 

/3/  WHILE THE ACT TECHNICALLY EXCLUDES FROM COVERAGE INDIVIDUALS
UNDER COURT COMMITMENT FOR DIPSOMANIA, DRUG ADDICTION, OR SEXUAL
PSYCHOPATHY, CAL. UNEMP.  INS.  CODE 2678, THE COURT WAS INFORMED BY
THE DEPUTY ATTORNEY GENERAL OF CALIFORNIA AT ORAL ARGUMENT THAT COURT
COMMITMENT FOR SUCH DISABILITIES IS "A FAIRLY ARCHAIC PRACTICE"  AND
THAT "IT WOULD BE UNREALISTIC TO SAY THAT THEY CONSTITUTE VALID
EXCLUSIONS."  TR. OF ORAL ARG. 13. 

/4/  ON MARCH 2, 1974, THE AMERICAN COLLEGE OF OBSTETRICIANS AND
GYNECOLOGISTS ADOPTED THE FOLLOWING POLICY STATEMENT ON PREGNANCY
RELATED DISABILITIES: 

"PREGNANCY IS A PHYSIOLOGICAL PROCESS.  ALL PREGNANT PATIENTS,
HOWEVER, HAVE A VARIABLE DEGREE OF DISABILITY ON AN INDIVIDUAL BASIS,
AS INDICATED BELOW, DURING WHICH TIME THEY ARE UNABLE TO PERFORM THEIR
USUAL ACTIVITIES.  (1) IN AN UNCOMPLICATED PREGNANCY, DISABILITY OCCURS
NEAR THE TERMINATION OF PREGNANCY, DURING LABOR, DELIVERY, AND THE
PUERPERIUM.  THE PROCESS OF LABOR AND PUERPERIUM IS DISABLING IN
ITSELF.  THE USUAL DURATION OF SUCH DISABILITY IS APPROXIMATELY SIX TO
EIGHT WEEKS.  (2) COMPLICATIONS OF A PREGNANCY MAY OCCUR WHICH GIVE
RISE TO OTHER DISABILITY.  EXAMPLES OF SUCH COMPLICATIONS INCLUDE
TOXEMIA, INFECTION, HEMMORRHAGE, ECTOPIC PREGNANCY, AND ABORTION.  (3)
A WOMAN WITH PRE-EXISTING DISEASE WHICH IN ITSELF IS NOT DISABLING, MAY
BECOME DISABLED WITH THE ADDITION OF PREGNANCY.  CERTAIN PATIENTS WITH
HEART DISEASE, DIABETES, HYPERTENSIVE CARDIOVASCULAR DISEASE, RENAL
DISEASE, AND OTHER SYSTEMIC CONDITIONS MAY BECOME DISABLED DURING THEIR
PREGNANCY BECAUSE OF THE ADVERSE EFFECT PREGNANCY HAS UPON THESE
CONDITIONS. 

"THE ONSET, TERMINATION AND CAUSE OF THE DISABILITY, RELATED TO
PREGNANCY, CAN ONLY BE DETERMINED BY A PHYSICIAN."  BRIEF FOR APPELLEES
59 - 60. 

/5/  NEARLY TWO-THIRDS OF ALL WOMEN WHO WORK DO SO OF NECESSITY:
EITHER THEY ARE UNMARRIED OR THEIR HUSBANDS EARN LESS THAN $7,000 PER
YEAR.  SEE UNITED STATES DEPARTMENT OF LABOR, WOMEN'S BUREAU, WHY WOMEN
WORK (REV. ED. 1972); UNITED STATES DEPARTMENT OF LABOR, EMPLOYMENT
STANDARDS ADMINISTRATION, THE MYTH AND THE REALITY (MAY 1974 REV.).
MOREOVER, THIS COURT RECOGNIZED IN KAHN V. SHEVIN, 416 U.S. 351, 353
(1974), THAT "DATA COMPILED BY THE WOMEN'S BUREAU OF THE UNITED STATES
DEPARTMENT OF LABOR SHOW THAT IN 1972 A WOMAN WORKING FULL TIME HAD A
MEDIAN INCOME WHICH WAS ONLY 57.9% OF THE MEDIAN FOR MALES--A FIGURE
ACTUALLY SIX POINTS LOWER THAN HAD BEEN ACHIEVED IN 1955." 

/6/  THE COMMISSION CAREFULLY SCRUTINIZED BOTH EMPLOYER PRACTICES
AND THEIR CRUCIAL IMPACT ON WOMEN FOR A SUBSTANTIAL PERIOD OF TIME AND
THEN ISSUED ITS GUIDELINES AFTER IT BECAME INCREASINGLY APPARENT THAT
SYSTEMATIC AND PERVASIVE DISCRIMINATION AGAINST WOMEN WAS FREQUENTLY
FOUND IN EMPLOYERS' DENIAL OF EMPLOYMENT OPPORTUNITY AND BENEFITS TO
WOMEN ON THE BASIS OF THE CHILDBEARING ROLE, PERFORMED SOLELY BY
WOMEN."  BRIEF FOR UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE 10. 

/7/  SEE ALSO THE PROPOSED SEX DISCRIMINATION GUIDELINES ISSUED BY
THE DEPARTMENT OF LABOR PURSUANT TO EXEC. ORDER 11246, VIRTUALLY
ADOPTING THE EEOC'S PREGNANCY-RELATED DISABILITIES GUIDELINE, 38 FED.
REG. 35337, 35338 (DEC. 27, 1973) (PROPOSED 41 CFR 60 - 20.3 (H) (2)). 

/8/  HOWEVER, "(IT IS IMPORTANT TO REMEMBER, ESPECIALLY IN THE
CONTEXT, THAT IF AN EMPLOYEE IS BEING PAID HIS REGULAR PAY WHILE
DISABLED, HE CANNOT COLLECT DISABILITY PAY.  THEREFORE, IT FOLLOWS THAT
ANY ALLEGED FINANCIAL BURDEN ON THE STATE WILL BE GREATLY DIMINISHED
WHEN EMPLOYERS ADHERE TO TITLE VII AND TREAT PREGNANCY-RELATED
DISABILITIES THE SAME AS OTHER DISABILITIES BY ALLOWING WOMEN TO USE
ACCUMULATED SICK LEAVE AND POSSIBLY ANNUAL LEAVE AS WELL."  BRIEF FOR
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE
21 N. 12. 

/9/  SIMILARLY, UNDER THE EEOC'S GUIDELINES ON DISCRIMINATION BECAUSE
OF SEX, "(IT SHALL NOT BE A DEFENSE UNDER TITLE VIII TO A CHARGE OF SEX
DISCRIMINATION IN BENEFITS THAT THE COST OF SUCH BENEFITS IS GREATER
WITH RESPECT TO ONE SEX THAN THE OTHER."  29 CFR 1604.9(E) 

JOANNE CONDAS, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR APPELLANT.  WITH HER ON THE BRIEFS WERE EVELLE J. YOUNGER,
ATTORNEY GENERAL, AND ELIZABETH PALMER, ASSISTANT ATTORNEY GENERAL. 

WENDY W. WILLIAMS ARGUED THE CAUSE FOR APPELLEES.  WITH HER ON THE
BRIEFS WERE PETER HART WEINER, ROLAND C. DAVIS, AND VICTOR J. VAN
BOURG.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MILTON A.
SMITH, GERARD C. SMETANA, LAWRENCE D. EHRLICH, AND JERRY KRONENBERG FOR
THE CHAMBER OF COMMERCE OF THE UNITED STATES; BY RONALD A. ZUMBRUN AND
RAYMOND M. MOMBOISSE FOR THE PACIFIC LEGAL FOUNDATION; BY RICHARD D.
GODOWN AND MYRON G. HILL, JR., FOR THE NATIONAL ASSOCIATION OF
MANUFACTURERS OF THE UNITED STATES; BY WILLARD Z. CARR, JR., FOR THE
MERCHANTS AND MANUFACTURERS ASSN.; BY F. MARK GARLINGHOUSE AND JAMES D.
HUTCHINSON FOR THE AMERICAN TELEPHONE AND TELEGRAPH CO.; AND BY
THEOPHIL C. KAMMHOLZ, STANLEY R. STRAUSS, JOHN S. BATTLE, JR., AND J.
ROBERT BRAME III FOR THE GENERAL ELECTRIC CO. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JOSEPH T.
EDDINS AND BEATRICE ROSENBERG FOR THE UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION; BY RUTH BADER GINSBURG AND MELVIN L. WULF FOR
THE AMERICAN CIVIL LIBERTIES UNION ET AL.; BY J. ALBERT WOLL, LAURENCE
GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS; BY WINN NEWMAN AND RUTH WEYAND
FOR THE INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS,
AFL-CIO-CLC; BY JOSEPH N. ONEK FOR WOMEN'S EQUITY ACTION LEAGUE ET AL.;
AND BY HARRY I. RAND FOR THE PHYSICIANS FORUM. 
..END :










SCHERK V. ALBERTO-CULVER CO., 417 U.S. 506 


       SCHERK V. ALBERTO-CULVER CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

        NO. 73 - 781.  ARGUED APRIL 29, 1974--DECIDED JUNE 17,
1974;

           (484 F.2D 611, REVERSED AND REMANDED.) 


    RESPONDENT, AN AMERICAN MANUFACTURER BASED IN ILLINOIS, IN

  ORDER TO EXPAND ITS OVERSEAS OPERATIONS, PURCHASED FROM

  PETITIONER, A GERMAN CITIZEN, THREE ENTERPRISES OWNED BY HIM AND

  ORGANIZED UNDER THE LAWS OF GERMANY AND LIECHTENSTEIN, TOGETHER

  WITH ALL TRADEMARK RIGHTS OF THESE ENTERPRISES.  THE SALES

  CONTRACT, WHICH WAS NEGOTIATED IN THE UNITED STATES, ENGLAND, AND

  GERMANY, SIGNED IN AUSTRIA, AND CLOSED IN SWITZERLAND, CONTAINED

  EXPRESS WARRANTIES BY PETITIONER THAT THE TRADEMARKS WERE

  UNENCUMBERED AND A CLAUSE PROVIDING THAT "ANY CONTROVERSY OR

  CLAIM (THAT) SHALL ARISE OUT OF THIS AGREEMENT OR THE BREACH

THEREOF" WOULD BE REFERRED TO ARBITRATION BEFORE THE

  INTERNATIONAL CHAMBER OF COMMERCE IN PARIS, FRANCE, AND THAT

ILLINOIS LAWS WOULD GOVERN THE AGREEMENT AND ITS INTERPRETATION

  AND PERFORMANCE.  SUBSEQUENTLY, AFTER ALLEGEDLY DISCOVERING THAT

  THE TRADEMARKS WERE SUBJECT TO SUBSTANTIAL ENCUMBRANCES,

  RESPONDENT OFFERED TO RESCIND THE CONTRACT, BUT WHEN PETITIONER

  REFUSED, RESPONDENT BROUGHT SUIT IN DISTRICT COURT FOR DAMAGES

  AND OTHER RELIEF, CONTENDING THAT PETITIONER'S FRAUDULENT

  REPRESENTATIONS CONCERNING THE TRADEMARK RIGHTS VIOLATED 10(B) OF

  THE SECURITIES EXCHANGE ACT OF 1934 AND RULE 10B - 5 PROMULGATED

  THEREUNDER.  PETITIONER MOVED TO DISMISS THE ACTION OR

  ALTERNATIVELY TO STAY THE ACTION PENDING ARBITRATION, BUT THE

  DISTRICT COURT DENIED THE MOTION TO DISMISS AND, AS SOUGHT BY

 RESPONDENT, PRELIMINARILY ENJOINED PETITIONER FROM PROCEEDING

  WITH ARBITRATION, HOLDING, IN RELIANCE ON WILKO V. SWAN, 346 U.S.

  427, THAT THE ARBITRATION CLAUSE WAS UNENFORCEABLE.  THE COURT OF

  APPEALS AFFIRMED.  HELD:  THE ARBITRATION CLAUSE IS TO BE

  RESPECTED AND ENFORCED BY FEDERAL COURTS IN ACCORD WITH THE

  EXPLICIT PROVISIONS OF THE UNITED STATES ARBITRATION ACT THAT AN

  ARBITRATION AGREEMENT, SUCH AS IS HERE INVOLVED, "SHALL BE VALID,

  IRREVOCABLE, AND ENFORCEABLE, SAVE UPON SUCH GROUNDS AS EXIST AT

LAW OR IN EQUITY FOR THE REVOCATION OF ANY CONTRACT."  9 U.S.C.

  1, 2.  WILKO V. SWAN, SUPRA, DISTINGUISHED.  PP. 510 - 520. 

     (A) SINCE UNCERTAINTY WILL ALMOST INEVITABLY EXIST WITH
RESPECT

  TO ANY CONTRACT, SUCH AS THE ONE IN QUESTION HERE, WITH

  SUBSTANTIAL CONTACTS IN TWO OR MORE COUNTRIES, EACH WITH ITS OWN

  SUBSTANTIVE LAWS AND CONFLICT-OF-LAWS RULES, A CONTRACTUAL

  PROVISION SPECIFYING IN ADVANCE THE FORUM FOR LITIGATING DISPUTES

  AND THE LAW TO BE APPLIED IS AN ALMOST INDISPENSABLE PRECONDITION

  TO ACHIEVING THE ORDERLINESS AND PREDICTABILITY ESSENTIAL TO ANY

INTERNATIONAL BUSINESS TRANSACTION.  SUCH A PROVISION OBVIATES

  THE DANGER THAT A CONTRACT DISPUTE MIGHT BE SUBMITTED TO A FORUM

  HOSTILE TO THE INTERESTS OF ONE OF THE PARTIES OR UNFAMILIAR WITH

  THE PROBLEM AREA INVOLVED.  PP. 515 - 517.  (B) IN THE CONTEXT OF

  AN INTERNATIONAL CONTRACT, THE ADVANTAGES THAT A SECURITY BUYER

  MIGHT POSSESS IN HAVING A WIDE CHOICE OF AMERICAN COURTS AND

  VENUE IN WHICH TO LITIGATE HIS CLAIMS OF VIOLATIONS OF THE

  SECURITIES LAWS, BECOME CHIMERICAL, SINCE AN OPPOSING PARTY MAY

BY SPEEDY RESORT TO A FOREIGN COURT BLOCK OR HINDER ACCESS TO THE

  AMERICAN COURT OF THE BUYER'S CHOICE.  PP. 517 - 518. 

     (C) AN AGREEMENT TO ARBITRATE BEFORE A SPECIFIED TRIBUNAL IS,

  IN EFFECT, A SPECIALIZED KIND OF FORUM-SELECTION CLAUSE THAT

  POSITS NOT ONLY THE SITUS OF SUIT BUT ALSO THE PROCEDURE TO BE

  USED IN RESOLVING THE DISPUTE, AND THE INVALIDATION OF THE

  ARBITRATION CLAUSE IN THIS CASE WOULD NOT ONLY ALLOW RESPONDENT

  TO REPUDIATE ITS SOLEMN PROMISE BUT WOULD, AS WELL, REFLECT A

  "PAROCHIAL CONCEPT THAT ALL DISPUTES MUST BE RESOLVED UNDER OUR

  LAWS AND IN OUR COURTS."  THE BREMEN V. ZAPATA OFF-SHORE CO., 407

U.S. 1, 9.  P. 519. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 

  DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, WHITE,

  AND MARSHALL, JJ., JOINED, POST, P. 521. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ALBERTO-CULVER CO., THE RESPONDENT, IS AN AMERICAN COMPANY
INCORPORATED IN DELAWARE WITH ITS PRINCIPAL OFFICE IN ILLINOIS.  IT
MANUFACTURES AND DISTRIBUTES TOILETRIES AND HAIR PRODUCTS IN THIS
COUNTRY AND ABROAD.  DURING THE 1960'S ALBERTO-CULVER DECIDED TO EXPAND
ITS OVERSEAS OPERATIONS, AND AS PART OF THIS PROGRAM IT APPROACHED THE
PETITIONER FRITZ SCHERK, A GERMAN CITIZEN RESIDING AT THE TIME OF TRIAL
IN SWITZERLAND.  SCHERK WAS THE OWNER OF THREE INTERRELATED BUSINESS
ENTITIES, ORGANIZED UNDER THE LAWS OF GERMANY AND LIECHTENSTEIN, THAT
WERE ENGAGED IN THE MANUFACTURE OF TOILETRIES AND THE LICENSING OF
TRADEMARKS FOR SUCH TOILETRIES.  AN INITIAL CONTACT WITH SCHERK WAS
MADE BY A REPRESENTATIVE OF ALBERTO-CULVER IN GERMANY IN JUNE 1967, AND
NEGOTIATIONS FOLLOWED AT FURTHER MEETINGS IN BOTH EUROPE AND THE UNITED
STATES DURING 1967 AND 1968.  IN FEBRUARY 1969 A CONTRACT WAS SIGNED IN
VIENNA, AUSTRIA, WHICH PROVIDED FOR THE TRANSFER OF THE OWNERSHIP OF
SCHERK'S ENTERPRISES TO ALBERTO-CULVER, ALONG WITH ALL RIGHTS HELD BY
THESE ENTERPRISES TO TRADEMARKS IN COSMETIC GOODS.  THE CONTRACT
CONTAINED A NUMBER OF EXPRESS WARRANTIES WHEREBY SCHERK GUARANTEED THE
SOLE AND UNENCUMBERED OWNERSHIP OF THESE TRADEMARKS.  IN ADDITION, THE
CONTRACT CONTAINED AN ARBITRATION CLAUSE PROVIDING THAT "ANY
CONTROVERSY OR CLAIM (THAT) SHALL ARISE OUT OF THIS AGREEMENT OR THE
BREACH THEREOF" WOULD BE REFERRED TO ARBITRATION BEFORE THE
INTERNATIONAL CHAMBER OF COMMERCE IN PARIS, FRANCE, AND THAT "(THE LAWS
OF THE STATE OF ILLINOIS, U.S.A. SHALL APPLY TO AND GOVERN THIS
AGREEMENT, ITS INTERPRETATION AND PERFORMANCE."  /1/ 

THE CLOSING OF THE TRANSACTION TOOK PLACE IN GENEVA, SWITZERLAND, IN
JUNE 1969.  NEARLY ONE YEAR LATER ALBERTO-CULVER ALLEGEDLY DISCOVERED
THAT THE TRADEMARK RIGHTS PURCHASED UNDER THE CONTRACT WERE SUBJECT TO
SUBSTANTIAL ENCUMBRANCES THAT THREATENED TO GIVE OTHERS SUPERIOR RIGHTS
TO THE TRADEMARKS AND TO RESTRICT OR PRECLUDE ALBERTO-CULVER'S USE OF
THEM.  ALBERTO-CULVER THEREUPON TENDERED BACK TO SCHERK THE PROPERTY
THAT HAD BEEN TRANSFERRED TO IT AND OFFERED TO RESCIND THE CONTRACT. 
UPON SCHERK'S REFUSAL, ALBERTO-CULVER COMMENCED THIS ACTION FOR DAMAGES
AND OTHER RELIEF IN A FEDERAL DISTRICT COURT IN ILLINOIS, CONTENDING
THAT SCHERK'S FRAUDULENT REPRESENTATIONS CONCERNING THE STATUS OF THE
TRADEMARK RIGHTS CONSTITUTED VIOLATIONS OF 10(B) OF THE SECURITIES
EXCHANGE ACT OF 1934, 48 STAT. 891, 15 U.S.C. 78J (B), AND RULE 10B-5
PROMULGATED THEREUNDER, 17 CFR 240.  - 10B - 5. 

IN RESPONSE, SCHERK FILED A MOTION TO DISMISS THE ACTION FOR WANT OF
PERSONAL AND SUBJECT MATTER JURISDICTION AS WELL AS ON THE BASIS OF
FORUM NON CONVENIENS, OR, ALTERNATIVELY, TO STAY THE ACTION PENDING
ARBITRATION IN PARIS PURSUANT TO THE AGREEMENT OF THE PARTIES.  ALBERTO
CULVER, IN TURN, OPPOSED THIS MOTION AND SOUGHT A PRELIMINARY
INJUNCTION RESTRAINING THE PROSECUTION OF ARBITRATION PROCEEDINGS.  /2/
ON DECEMBER 2, 1971, THE DISTRICT COURT DENIED SCHERK'S MOTION TO
DISMISS, AND, ON JANUARY 14, 1972, IT GRANTED A PRELIMINARY ORDER
ENJOINING SCHERK FROM PROCEEDING WITH ARBITRATION.  IN TAKING THESE
ACTIONS THE COURT RELIED ENTIRELY ON THIS COURT'S DECISION IN WILKO V.
SWAN, 346 U.S. 427, WHICH HELD THAT AN AGREEMENT TO ARBITRATE COULD NOT
PRECLUDE A BUYER OF A SECURITY FROM SEEKING A JUDICIAL REMEDY UNDER THE
SECURITIES ACT OF 1933, IN VIEW OF THE LANGUAGE OF 14 OF THAT ACT,
BARRING "(ANY CONDITION, STIPULATION, OR PROVISION BINDING ANY PERSON
ACQUIRING ANY SECURITY TO WAIVE COMPLIANCE WITH ANY PROVISION OF THIS
SUBCHAPTER . . . ."  48 STAT. 84, 15 U.S.C. 77N.  /3/  THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT, WITH ONE JUDGE DISSENTING, AFFIRMED,
UPON WHAT IT CONSIDERED THE CONTROLLING AUTHORITY OF THE WILKO
DECISION.  484 F.2D 611.  BECAUSE OF THE IMPORTANCE OF THE QUESTION
PRESENTED WE GRANTED SCHERK'S PETITION FOR A WRIT OF CERTIORARI.  414
U.S. 1156. 

        I 

THE UNITED STATES ARBITRATION ACT, NOW 9 U.S.C. 1 ET SEQ., REVERSING
CENTURIES OF JUDICIAL HOSTILITY TO ARBITRATION AGREEMENTS, /4/  WAS
DESIGNED TO ALLOW PARTIES TO AVOID "THE COSTLINESS AND DELAYS OF
LITIGATION," AND TO PLACE ARBITRATION AGREEMENTS "UPON THE SAME FOOTING
AS OTHER CONTRACTS . . . ."  H.R. REP. NO. 96, 68TH CONG., 1ST SESS.,
1, 2 (1924); SEE ALSO S. REP. NO. 536, 68TH CONG., 1ST SESS. (1924). 
ACCORDINGLY, THE ACT PROVIDES THAT AN ARBITRATION AGREEMENT SUCH AS IS
HERE INVOLVED "SHALL BE VALID, IRREVOCABLE, AND ENFORCEABLE, SAVE UPON
SUCH GROUNDS AS EXIST AT LAW OR IN EQUITY FOR THE REVOCATION OF ANY
CONTRACT."  9 U.S.C. 2.  /5/  THE ACT ALSO PROVIDES IN 3 FOR A STAY OF
PROCEEDINGS IN A CASE WHERE A COURT IS SATISFIED THAT THE ISSUE BEFORE
IT IS ARBITRABLE UNDER THE AGREEMENT, AND 4 OF THE ACT DIRECTS A
FEDERAL COURT TO ORDER PARTIES TO PROCEED TO ARBITRATION IF THERE HAS
BEEN A "FAILURE, NEGLECT, OR REFUSAL" OF ANY PARTY TO HONOR AN
AGREEMENT TO ARBITRATE. 

IN WILKO V. SWAN, SUPRA, THIS COURT ACKNOWLEDGED THAT THE ACT
REFLECTS A LEGISLATIVE RECOGNITION OF THE "DESIRABILITY OF ARBITRATION
AS AN ALTERNATIVE TO THE COMPLICATIONS OF LITIGATION," ID., AT 431, BUT
NONETHELESS DECLINED TO APPLY THE ACT'S PROVISIONS.  THAT CASE INVOLVED
AN AGREEMENT BETWEEN ANTHONY WILKO AND HAYDEN, STONE & CO., A LARGE
BROKERAGE FIRM UNDER WHICH WILKO AGREED TO PURCHASE ON MARGIN A NUMBER
OF SHARES OF A CORPORATION'S COMMON STOCK.  WILKO ALLEGED THAT HIS
PURCHASE OF THE STOCK WAS INDUCED BY FALSE REPRESENTATIONS ON THE PART
OF THE DEFENDANT CONCERNING THE VALUE OF THE SHARES, AND HE BROUGHT
SUIT FOR DAMAGES UNDER 12(2) OF THE SECURITIES ACT OF 1933, 15 U.S.C.
77L.  THE DEFENDANT RESPONDED THAT WILKO HAD AGREED TO SUBMIT ALL
CONTROVERSIES ARISING OUT OF THE PURCHASE TO ARBITRATION, AND THAT THIS
AGREEMENT, CONTAINED IN A WRITTEN MARGIN CONTRACT BETWEEN THE PARTIES,
SHOULD BE GIVEN FULL EFFECT UNDER THE ARBITRATION ACT. 

THE COURT FOUND THAT "(TWO POLICIES, NOT EASILY RECONCILABLE, ARE
INVOLVED IN THIS CASE."  346 U.S., AT 438.  ON THE ONE HAND, THE
ARBITRATION ACT STRESSED "THE NEED FOR AVOIDING THE DELAY AND EXPENSE
OF LITIGATION," ID., AT 431, AND DIRECTED THAT SUCH AGREEMENTS BE
"VALID, IRREVOCABLE, AND ENFORCEABLE" IN FEDERAL COURTS.  ON THE OTHER
HAND, THE SECURITIES ACT OF 1933 WAS "(DESIGNED TO PROTECT INVESTORS"
AND TO REQUIRE "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," BY CREATING "A
SPECIAL RIGHT TO RECOVER FOR MISREPRESENTATION . . . ."  346 U.S., AT
431 (FOOTNOTE OMITTED).  IN PARTICULAR, THE COURT NOTED THAT 14 OF THE
SECURITIES ACT, 15 U.S.C. 77N, 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." 

THE COURT RULED THAT AN AGREEMENT TO ARBITRATE "IS A 'STIPULATION,' AND
(THAT) THE RIGHT TO SELECT THE JUDICIAL FORUM IS THE KIND OF
'PROVISION' THAT CANNOT BE WIAVED UNDER 14 OF THE SECURITIES ACT."  /6/
ID., AT 434 - 435.  THUS, WILKO'S ADVANCE AGREEMENT TO ARBITRATE ANY
DISPUTES SUBSEQUENTLY ARISING OUT OF HIS CONTRACT TO PURCHASE THE
SECURITIES WAS UNENFORCEABLE UNDER THE TERMS OF 14 OF THE SECURITIES
ACT OF 1933. 

ALBERTO-CULVER, RELYING ON THIS PRECEDENT, CONTENDS THAT THE
DISTRICT COURT AND COURT OF APPEALS WERE CORRECT IN HOLDING THAT ITS
AGREEMENT TO ARBITRATE DISPUTES ARISING UNDER THE CONTRACT WITH SCHERK
IS SIMILARLY UNENFORCEABLE IN VIEW OF ITS CONTENTIONS THAT SCHERK'S
CONDUCT CONSTITUTED VIOLATIONS OF THE SECURITIES EXCHANGE ACT OF 1934
AND RULES PROMULGATED THEREUNDER.  FOR THE REASONS THAT FOLLOW, WE
REJECT THIS CONTENTION AND HOLD THAT THE PROVISIONS OF THE ARBITRATION
ACT CANNOT BE IGNORED IN THIS CASE. 

AT THE OUTSET, A COLORABLE ARGUMENT COULD BE MADE THAT EVEN THE
SEMANTIC REASONING OF THE WILKO OPINION DOES NOT CONTROL THE CASE
BEFORE US.  WILKO CONCERNED A SUIT BROUGHT UNDER 12(2) OF THE
SECURITIES ACT OF 1933, WHICH PROVIDES A DEFRAUDED PURCHASER WITH THE
"SPECIAL RIGHT" OF A PRIVATE REMEDY FOR CIVIL LIABILITY, 346 U.S., AT
431.  THERE IS NO STATUTORY COUNTERPART OF 12(2) IN THE SECURITIES
EXCHANGE ACT OF 1934, AND NEITHER 10(B) OF THAT ACT NOR RULE 10B-5
SPEAKS OF A PRIVATE REMEDY TO REDRESS VIOLATIONS OF THE KIND ALLEGED
HERE.  WHILE FEDERAL CASE LAW HAS ESTABLISHED THAT 10(B) AND RULE 10B-5
CREATE AN IMPLIED PRIVATE CAUSE OF ACTION, SEE 6 L. LOSS, SECURITIES
REGULATION 3869 - 3873 (1969) AND CASES CITED THEREIN; CF. J.L. CASE
CO. V. BORAK, 377 U.S. 426, THE ACT ITSELF DOES NOT ESTABLISH THE
"SPECIAL RIGHT"  THAT THE COURT IN WILKO FOUND SIGNIFICANT. 
FURTHERMORE, WHILE BOTH THE SECURITIES ACT OF 1933 AND THE SECURITIES
EXCHANGE ACT OF 1934 CONTAIN SECTIONS BARRING WAIVER OF COMPLIANCE WITH
ANY "PROVISION" OF THE RESPECTIVE ACTS, /7/  CERTAIN OF THE
"PROVISIONS" OF THE 1933 ACT THAT THE COURT HELD COULD NOT BE WAIVED BY
WILKO'S AGREEMENT TO ARBITRATE FIND NO COUNTERPART IN THE 1934 ACT.  IN
PARTICULAR, THE COURT IN WILKO NOTED THAT THE JURISDICTIONAL PROVISION
OF THE 1933 ACT, 15 U.S.C. 77V, ALLOWED A PLAINTIFF TO BRING SUIT "IN
ANY COURT OF COMPETENT JURISDICTION--FEDERAL OR STATE--AND REMOVAL FROM
A STATE COURT IS PROHIBITED."  346 U.S., AT 431.  THE ANALOGOUS
PROVISION OF THE 1934 ACT, BY CONTRAST, PROVIDES FOR SUIT ONLY IN THE
FEDERAL DISTRICT COURTS THAT HAVE "EXCLUSIVE JURISDICTION,"  15 U.SV.C.
78AA, THUS SIGNIFICANTLY RESTRICTING THE PLAINTIFF'S CHOICE OF FORUM. 
/8/ 

ACCEPTING THE PREMISE, HOWEVER, THAT THE OPERATIVE PORTIONS OF THE
LANGUAGE OF THE 1933 ACT RELIED UPON IN WILKO ARE CONTAINED IN THE
SECURITIES EXCHANGE ACT OF 1934, THE RESPONDENT'S RELIANCE ON WILKO IN
THIS CASE IGNORES THE SIGNIFICANT AND, WE FIND, CRUCIAL DIFFERENCES
BETWEEN THE AGREEMENT INVOLVED IN WILKO AND THE ONE SIGNED BY THE
PARTIES HERE.  ALBERTO-CULVER'S CONTRACT TO PURCHASE THE BUSINESS
ENTITIES BELONGING TO SCHERK WAS A TRULY INTERNATIONAL AGREEMENT. 
ALBERTO-CULVER IS AN AMERICAN CORPORATION WITH ITS PRINCIPAL PLACE OF
BUSINESS AND THE VAST BULK OF ITS ACTIVITY IN THIS COUNTRY, WHILE
SCHERK IS A CITIZEN OF GERMANY WHOSE COMPANIES WERE ORGANIZED UNDER THE
LAWS OF GERMANY AND LIECHTENSTEIN.  THE NEGOTIATIONS LEADING TO THE
SIGNING OF THE CONTRACT IN AUSTRIA AND TO THE CLOSING IN SWITZERLAND
TOOK PLACE IN THE UNITED STATES, ENGLAND, AND GERMANY, AND INVOLVED
CONSULTATIONS WITH LEGAL AND TRADEMARK EXPERTS FROM EACH OF THOSE
COUNTRIES AND FROM LIECHTENSTEIN.  FINALLY, AND MOST SIGNIFICANTLY, THE
SUBJECT MATTER OF THE CONTRACT CONCERNED THE SALE OF BUSINESS
ENTERPRISES ORGANIZED UNDER THE LAWS OF AND PRIMARILY SITUATED IN
EUROPEAN COUNTRIES, AND WHOSE ACTIVITIES WERE LARGELY, IF NOT ENTIRELY,
DIRECTED TO EUROPEAN MARKETS. 

SUCH A CONTRACT INVOLVES CONSIDERATIONS AND POLICIES SIGNIFICANTLY
DIFFERENT FROM THOSE FOUND CONTROLLING IN WILKO.  IN WILKO, QUITE APART
FROM THE ARBITRATION PROVISION, THERE WAS NO QUESTION BUT THAT THE LAWS
OF THE UNITED STATES GENERALLY, AND THE FEDERAL SECURITIES LAWS IN
PARTICULAR, WOULD GOVERN DISPUTES ARISING OUT OF THE STOCK-PURCHASE
AGREEMENT.  THE PARTIES, THE NEGOTIATIONS, AND THE SUBJECT MATTER OF
THE CONTRACT WERE ALL SITUATED IN THIS COUNTRY, AND NO CREDIBLE CLAIM
COULD HAVE BEEN ENTERTAINED THAT ANY INTERNATIONAL CONFLICT-OF-LAWS
PROBLEMS WOULD ARISE.  IN THIS CASE, BY CONTRAST, IN THE ABSENCE OF THE
ARBITRATION PROVISION CONSIDERABLE UNCERTAINTY EXISTED AT THE TIME OF
THE AGREEMENT, AND STILL EXISTS, CONCERNING THE LAW APPLICABLE TO THE
RESOLUTION OF DISPUTES ARISING OUT OF THE CONTRACT.  /9/ 

SUCH UNCERTAINTY WILL ALMOST INEVITABLY EXIST WITH RESPECT TO ANY
CONTRACT TOUCHING TWO OR MORE COUNTRIES, EACH WITH ITS OWN SUBSTANTIVE
LAWS AND CONFLICT-OF-LAWS RULES.  A CONTRACTUAL PROVISION SPECIFYING IN
ADVANCE THE FORUM IN WHICH DISPUTES SHALL BE LITIGATED AND THE LAW TO
BE APPLIED IS, THEREFORE, AN ALMOST INDISPENSABLE PRECONDITION TO
ACHIEVEMENT OF THE ORDERLINESS AND PREDICTABILITY ESSENTIAL TO ANY
INTERNATIONAL BUSINESS TRANSACTION.  FURTHERMORE, SUCH A PROVISION
OBVIATES THE DANGER THAT A DISPUTE UNDER THE AGREEMENT MIGHT BE
SUBMITTED TO A FORUM HOSTILE TO THE INTERESTS OF ONE OF THE PARTIES OR
UNFAMILIAR WITH THE PROBLEM AREA INVOLVED.  /10/ 

A PAROCHIAL REFUSAL BY THE COURTS OF ONE COUNTRY TO ENFORCE AN
INTERNATIONAL ARBITRATION AGREEMENT WOULD NOT ONLY FRUSTRATE THESE
PURPOSES, BUT WOULD INVITE UNSEEMLY AND MUTUALLY DESTRUCTIVE JOCKEYING
BY THE PARTIES TO SECURE TACTICAL LITIGATION ADVANTAGES.  IN THE
PRESENT CASE, FOR EXAMPLE, IT IS NOT INCONCEIVABLE THAT IF SCHERK HAD
ANTICIPATED THAT ALBERTO-CULVER WOULD BE ABLE IN THIS COUNTRY TO ENJOIN
RESORT TO ARBITRATION HE MIGHT HAVE SOUGHT AN ORDER IN FRANCE OR SOME
OTHER COUNTRY ENJOINING ALBERTO-CULVER FROM PROCEEDING WITH ITS
LITIGATION IN THE UNITED STATES.  WHATEVER RECOGNITION THE COURTS OF
THIS COUNTRY MIGHT ULTIMATELY HAVE GRANTED TO THE ORDER OF THE FOREIGN
COURT, THE DICEY ATMOSPHERE OF SUCH A LEGAL NO MAN'S LAND WOULD SURELY
DAMAGE THE FABRIC OF INTERNATIONAL COMMERCE AND TRADE, AND IMPERIL THE
WILLINGNESS AND ABILITY OF BUSINESSMEN TO ENTER INTO INTERNATIONAL
COMMERCIAL AGREEMENTS.  /11/     THE EXCEPTION TO THE CLEAR PROVISIONS
OF THE ARBITRATION ACT CARVED OUT BY WILKO IS SIMPLY INAPPOSITE TO A
CASE SUCH AS THE ONE BEFORE US.  IN WILKO THE COURT REASONED THAT
"(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 . . . ."  346 U.S., AT 435.  IN THE
CONTEXT OF AN INTERNATIONAL CONTRACT, HOWEVER, THESE ADVANTAGES BECOME
CHIMERICAL SINCE, AS INDICATED ABOVE, AN OPPOSING PARTY MAY BY SPEEDY
RESORT TO A FOREIGN COURT BLOCK OR HINDER ACCESS TO THE AMERICAN COURT
OF THE PURCHASER'S CHOICE.  /12/ 

TWO TERMS AGO IN THE BREMEN V. ZAPATA OFF-SHORE CO., 407 U.S. 1, WE
REJECTED THE DOCTRINE THAT A FORUM-SELECTION CLAUSE OF A CONTRACT,
ALTHOUGH VOLUNTARILY ADOPTED BY THE PARTIES, WILL NOT BE RESPECTED IN A
SUIT BROUGHT IN THE UNITED STATES "'UNLESS THE SELECTED STATE WOULD
PROVIDE A MORE CONVENIENT FORUM THAN THE STATE IN WHICH SUIT IS
BROUGHT.'"  ID., AT 7.  RATHER, WE CONCLUDED THAT A "FORUM CLAUSE
SHOULD CONTROL ABSENT A STRONG SHOWING THAT IT SHOULD BE SET ASIDE." 
ID., AT 15.  WE NOTED THAT "MUCH UNCERTAINTY AND POSSIBLY GREAT
INCONVENIENCE TO BOTH PARTIES COULD ARISE IF A SUIT COULD BE MAINTAINED
IN ANY JURISDICTION IN WHICH AN ACCIDENT MIGHT OCCUR OR IF JURISDICTION
WERE LEFT TO ANY PLACE (WHERE PERSONAL OR IN REM JURISDICTION MIGHT BE
ESTABLISHED).  THE ELIMINATION OF ALL SUCH UNCERTAINTIES BY AGREEING IN
ADVANCE ON A FORUM ACCEPTABLE TO BOTH PARTIES IS AN INDISPENSABLE
ELEMENT IN INTERNATIONAL TRADE, COMMERCE, AND CONTRACTING."  ID., AT 13
- 14. 

AN AGREEMENT TO ARBITRATE BEFORE A SPECIFIED TRIBUNAL IS, IN EFFECT,
A SPECIALIZED KIND OF FORUM-SELECTION CLAUSE THAT POSITS NOT ONLY THE
SITUS OF SUIT BUT ALSO THE PROCEDURE TO BE USED IN RESOLVING THE
DISPUTE.  /13/  THE INVALIDATION OF SUCH AN AGREEMENT IN THE CASE
BEFORE US WOULD NOT ONLY ALLOW THE RESPONDENT TO REPUDIATE ITS SOLEMN
PROMISE BUT WOULD, AS WELL, REFLECT A "PAROCHIAL CONCEPT THAT ALL
DISPUTES MUST BE RESOLVED UNDER OUR LAWS AND IN OUR COURTS.  . . . WE
CANNOT HAVE TRADE AND COMMERCE IN WORLD MARKETS AND INTERNATIONAL
WATERS EXCLUSIVELY ON OUR TERMS, GOVERNED BY OUR LAWS, AND RESOLVED IN
OUR COURTS."  ID., AT 9.  /14/ 

FOR ALL THESE REASONS WE HOLD THAT THE AGREEMENT OF THE PARTIES IN
THIS CASE TO ARBITRATE ANY DISPUTE ARISING OUT OF THEIR INTERNATIONAL
COMMERCIAL TRANSACTION IS TO BE RESPECTED AND ENFORCED BY THE FEDERAL
COURTS IN ACCORD WITH THE EXPLICIT PROVISIONS OF THE ARBITRATION ACT. 
/15/ 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND
THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

IT IS SO ORDERED. 

/1/  THE ARBITRATION CLAUSE RELATING TO THE TRANSFER OF ONE OF
SCHERK'S BUSINESS ENTITIES, SIMILAR TO THE CLAUSES COVERING THE OTHER
TWO, READS IN ITS ENTIRETY AS FOLLOWS: 

"THE PARTIES AGREE THAT IF ANY CONTROVERSY OR CLAIM SHALL ARISE OUT
OF THIS AGREEMENT OR THE BREACH THEREOF AND EITHER PARTY SHALL REQUEST
THAT THE MATTER SHALL BE SETTLED BY ARBITRATION, THE MATTER SHALL BE
SETTLED EXCLUSIVELY BY ARBITRATION IN ACCORDANCE WITH THE RULES THEN
OBTAINING OF THE INTERNATIONAL CHAMBER OF COMMERCE, PARIS, FRANCE, BY A
SINGLE ARBITRATOR, IF THE PARTIES SHALL AGREE UPON ONE, OR BY ONE
ARBITRATOR APPOINTED BY EACH PARTY AND A THIRD ARBITRATOR APPOINTED BY
THE OTHER ARBITRATORS.  IN CASE OF ANY FAILURE OF A PARTY TO MAKE AN
APPOINTMENT REFERRED TO ABOVE WITHIN FOUR WEEKS AFTER NOTICE OF THE
CONTROVERSY, SUCH APPOINTMENT SHALL BE MADE BY SAID CHAMBER.  ALL
ARBITRATION PROCEEDINGS SHALL BE HELD IN PARIS, FRANCE, AND EACH PARTY
AGREES TO COMPLY IN ALL RESPECTS WITH ANY AWARD MADE IN ANY SUCH
PROCEEDING AND TO THE ENTRY OF A JUDGMENT IN ANY JURISDICTION UPON ANY
AWARD RENDERED IN SUCH PROCEEDING.  THE LAWS OF THE STATE OF ILLINOIS,
U.S.A. SHALL APPLY TO AND GOVERN THIS AGREEMENT, ITS INTERPRETATION AND
PERFORMANCE." 

/2/  SCHERK HAD TAKEN STEPS TO INITIATE ARBITRATION IN PARIS IN
EARLY 1971.  HE DID NOT, HOWEVER, FILE A FORMAL REQUEST FOR ARBITRATION
WITH THE INTERNATIONAL CHAMBER OF COMMERCE UNTIL NOVEMBER 9, 1971,
ALMOST FIVE MONTHS AFTER THE FILING OF ALBERTO-CULVER'S COMPLAINT IN
THE ILLINOIS FEDERAL COURT. 

/3/  THE MEMORANDUM OPINION OF THE DISTRICT COURT IS UNREPORTED. 

/4/  ENGLISH COURTS TRADITIONALLY CONSIDERED IRREVOCABLE ARBITRATION
AGREEMENTS AS "OUSTING" THE COURTS OF JURISDICTION, AND REFUSED TO
ENFORCE SUCH AGREEMENTS FOR THIS REASON.  THIS VIEW WAS ADOPTED BY
AMERICAN COURTS AS PART OF THE COMMON LAW UP TO THE TIME OF THE
ADOPTION OF THE ARBITRATION ACT.  SEE H.R. REP. NO. 96, 68TH CONG., 1ST
SESS., 1, 2 (1924); STURGES & MURPHY, COME CONFUSING MATTERS RELATING
TO ARBITRATION UNDER THE UNITED STATES ARBITRATION ACT,I 17 LAW &
CONTEMP.  PROB.  580. 

/5/  SECTION 2 OF THE ARBITRATION ACT RENDERS "VALID, IRREVOCABLE,
AND ENFORCEABLE" WRITTEN ARBITRATION PROVISIONS "IN ANY MARITIME
TRANSACTION OR A CONTRACT EVIDENCING A TRANSACTION INVOLVING COMMERCE .
. . ," AS THOSE TERMS ARE DEFINED IN 1.  IN BERNHARDT V. POLYGRAPHIC
CO., 350 U.S. 198, THIS COURT HELD THAT THE STAY PROVISIONS OF 3 APPLY
ONLY TO THE TWO KINDS OF CONTRACTS SPPECIFIED IN 1 AND 2.  SINCE THE
TRANSACTION IN THIS CASE CONSTITUTED "COMMERCE . . . WITH FOREIGN
NATIONS," 9 U.S.C. 1, THE ACT CLEARLY COVERS THIS AGREEMENT. 

/6/  THE ARBITRATION AGREEMENT INVOLVED IN WILKO WAS CONTAINED IN A
STANDARD FORM MARGIN CONTRACT.  BUT SEE THE DISSENTING OPINION OF MR.
JUSTICE FRANKFURTER, 346 U.S. 427, 439, 440, CONCLUDING THAT THE RECORD
DID NOT SHOW THAT "THE PLAINTIFF (WILKO) IN OPENING AN ACCOUNT HAD NO
CHOICE BUT TO ACCEPT THE ARBITRATION STIPULATION ...."  THE PETITIONER
HERE WOULD LIMIT THE DECISION IN WILKO TO SITUATIONS WHERE THE PARTIES
EXHIBIT A DISPARITY OF BARGAINING POWER, AND CONTENDS THAT, SINCE THE
NEGOTIATIONS LEADING TO THE PRESENT CONTRACT TOOK PLACE OVER A NUMBER
OF YEARS AND INVOLVED THE PARTICIPATION ON BOTH SIDES OF KNOWLEDGEABLE
AND SOPHISTICATED BUSINESS AND LEGAL EXPERTS, THE WILKO DECISION SHOULD
NOT APPLY.  SEE ALSO THE DISSENTING OPINION OF JUDGE STEVENS OF THE
COURT OF APPEALS IN THIS CASE, 484 F.2D 611, 615.  BECAUSE OF OUR
DISPOSTION OF THIS CASE ON OTHER GROUNDS, WE NEED NOT CONSIDER THIS
CONTENTION. 

/7/  SECTION 14 OF THE SECURITIES ACT OF 1933, 15 U.S.C. 77N,
PROVIDES AS FOLLOWS: 

"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." 

PROVIDES: 

"ANY CONDITION, STIPULATION, OR PROVISION BINDING ANY PERSON TO
WAIVE COMPLIANCE WITH ANY PROVISION OF THIS CHAPTER OR OF ANY RULE OR
REGULATION THEREUNDER, OR OF ANY RULE OF AN EXCHANGE REQUIRED THEREBY
SHALL BE VOID."  WHILE THE TWO SECTIONS ARE NOT IDENTICAL, THE
VARIATIONS IN THEIR WORDING SEEM IRRELEVANT TO THE ISSUE PRESENTED IN
THIS CASE. 

/8/  WE DO NOT REACH, OR IMPLY ANY OPINION AS TO, THE QUESTION
WHETHER THE ACQUISITION OF SCHERK'S BUSINESSES WAS A SECURITY
TRANSACTION WITHIN THE MEANING OF 10(B) OF THE SECURITIES EXCHANGE ACT
OF 1934 AND RULE 10B-5.  ALTHOUGH THIS IMPORTANT QUESTION WAS
CONSIDERED BY THE DISTRICT COURT AND THE COURT OF APPEALS, AND ALTHOUGH
THE DISSENTING OPINION, POST P. 521, SEEMS TO CONSIDER IT CONTROLLING,
THE PETITIONER DID NOT ASSIGN THE ADVERSE RULING ON THE QUESTION AS
ERROR AND IT WAS NOT BRIEFED OR ARGUED IN THIS COURT. 

/9/  TOGETHER WITH HIS MOTION FOR A STAY PENDING ARBITRATION, SCHERK
MOVED THAT THE COMPLAINT BE DISMISSED BECAUSE THE FEDERAL SECURITIES
LAWS DO NOT APPLY TO THIS INTERNATIONAL TRANSACTION, CF. LEASCO DATA
PROCESSING EQUIPMENT CORP. V. MAXWELL, 468 F.2D 1326 (CA2 1972).  SINCE
ONLY THE ORDER GRANTING THE INJUNCTION WAS APPEALED, THIS CONTENTION
WAS NOT CONSIDERED BY THE COURT OF APPEALS AND IS NOT BEFORE THIS
COURT. 

/10/  SEE QUIGLEY, ACCESSION BY THE UNITED STATES TO THE UNITED
NATIONS CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS, 70 YALE L.J. 1049, 1051 (1961).  FOR EXAMPLE, WHILE
THE ARBITRATION AGREEMENT INVOLVED HERE PROVIDED THAT THE CONTROVERSIES
ARISING OUT OF THE AGREEMENT BE RESOLVED UNDER "(THE LAWS OF THE STATE
OF ILLINOIS," SUPRA, N. 1, A DETERMINATION OF THE EXISTENCE AND EXTENT
OF FRAUD CONCERNING THE TRADEMARKS WOULD NECESSARILY INVOLVE AN
UNDERSTANDING OF FOREIGN LAW ON THAT SUBJECT. 

/11/  THE DISSENTING OPINION ARGUES THAT OUR CONCLUSION THAT WILKO
IS INAPPLICABLE TO THE SITUATION PRESENTED IN THIS CASE WILL VITIATE
THE FORCE OF THAT DECISION BECAUSE PARTIES TO TRANSACTIONS WITH MANY
MORE DIRECT CONTACTS WITH THIS COUNTRY THAN IN THE PRESENT CASE WILL
NONETHELESS BE ABLE TO INVOKE THE "TALISMAN" OF HAVING AN
"INTERNATIONAL CONTRACT."  POST, AT 529.  CONCEDEDLY, SITUATIONS MAY
ARISE WHERE THE CONTRACTS WITH FOREIGN COUNTRIES ARE SO INSIGNIFICANT
OR ATTENUATED THAT THE HOLDING IN WILKO WOULD MEANINGFULLY APPLY. 
JUDICIAL RESPONSE TO SUCH SITUATIONS CAN AND SHOULD AWAIT FUTURE
LITIGATION IN CONCRETE CASES.  THIS CASE, HOWEVER, PROVIDES NO BASIS
FOR A JUDGMENT THAT ONLY UNITED STATES LAWS AND UNITED STATES COURTS
SHOULD DETERMINE THIS CONTROVERSY IN THE FACE OF A SOLEMN AGREEMENT
BETWEEN THE PARTIES THAT SUCH CONTROVERSIES BY RESOLVED ELSEWHERE.  THE
ONLY CONTACT BETWEEN THE UNITED STATES AND THE TRANSACTION INVOLVED
HERE IS THE FACT THAT ALBERTO-CULVER IS AN AMERICAN CORPORATION AND THE
OCCURRENCE OF SOME--BUT BY NO MEANS THE GREATER PART--OF THE PRE
CONTRACT NEGOTIATIONS IN THIS COUNTRY.  TO DETERMINE THAT "AMERICAN
STANDARDS OF FAIRNESS," POST, AT 528, MUST NONETHELESS GOVERN THE
CONTROVERSY DEMEANS THE STANDARDS OF JUSTICE ELSEWHERE IN THE WORLD,
AND UNNECESSARILY EXALTS THE PRIMACY OF UNITED STATES LAW OVER THE LAWS
OF OTHER COUNTRIES. 

/12/  THE DISSENTING OPINION RAISES THE SPECTER THAT OUR HOLDING
TODAY WILL LEAVE AMERICAN INVESTORS AT THE MERCY OF MULTINATIONAL
CORPORATIONS WITH "VAST OPERATIONS AROUND THE WORLD . . . ."  POST, AT
533.  OUR DECISION, OF COURSE, HAS NO BEARING ON THE SCOPE OF THE
SUBSTANTIVE PROVISIONS OF THE FEDERAL SECURITIES LAWS FOR THE SIMPLE
REASON THAT THE QUESTION IS NOT PRESENTED IN THIS CASE.  SEE N. 8,
SUPRA. 

/13/  UNDER SOME CIRCUMSTANCES, THE DESIGNATION OF ARBITRATION IN A
CERTAIN PLACE MIGHT ALSO BE VIEWED AS IMPLICITLY SELECTING THE LAW OF
THAT PLACE TO APPLY TO THAT TRANSACTION.  IN THIS CASE, HOWEVER, "(THE
LAWS OF THE STATE OF ILLINOIS" WERE EXPLICITLY MADE APPLICABLE BY THE
ARBITRATION AGREEMENT.  SEE N. 1, SUPRA. 

/14/  IN THE BREMEN WE NOTED THAT FORUM-SELECTION CLAUSES "SHOULD BE
GIVEN FULL EFFECT" WHEN "A FREELY NEGOTIATED PRIVATE INTERNATIONAL
AGREEMENT (IS) UNAFFECTED BY FRAUD . . . ."  407 U.S. 1, 13, 12.  THIS
QUALIFICATION DOES NOT MEAN THAT ANY TIME A DISPUTE ARISING OUT OF A
TRANSACTION IS BASED UPON AN ALLEGATION OF FRAUD, AS IN THIS CASE, THE
CLAUSE IS UNENFORCEABLE.  RATHER, IT MEANS THAT AN ARBITRATION OR FORUM
SELECTION CLAUSE IN A CONTRACT IS NOT ENFORCEABLE IF THE INCLUSION OF
THAT CLAUSE IN THE CONTRACT WAS THE PRODUCT OF FRAUD OR COERCION.  CF.
PRIMA PAINT CORP. V. FLOOD & CONKLIN MFG. CO., 388 U.S. 395. 

ALTHOUGH WE DO NOT DECIDE THE QUESTION PRESUMABLY THE TYPE OF FRAUD
ALLEGED HERE COULD BE RAISED, UNDER ART. V OF THE CONVENTION ON THE
RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS, SEE N. 15,
INFRA.  IN CHALLENGING THE ENFORCEMENT OF WHATEVER ARBITRAL AWARD IS
PRODUCED THROUGH ARBITRATION.  ARTICLE V(2)(B) OF THE CONVENTION
PROVIDES THAT A COUNTRY MAY REFUSE RECOGNITION AND ENFORCEMENT OF AN
AWARD IF "RECOGNITION OR ENFORCEMENT OF THE AWARD WOULD BE CONTRARY TO
THE PUBLIC POLICY OF THAT COUNTRY." 

/15/  OUR CONCLUSION TODAY IS CONFIRMED BY INTERNATIONAL
DEVELOPMENTS AND DOMESTIC LEGISLATION IN THE AREA OF COMMERCIAL
ARBITRATION SUBSEQUENT TO THE WILKO DECISION.  ON JUNE 10, 1958, A
SPECIAL CONFERENCE OF THE UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL
ADOPTED THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS.  IN 1970 THE UNITED STATES ACCEDED TO THE TREATY,
(1970) 3 U.S.T. 2517, T.I.A.S. NO. 6997, AND CONGRESS PASSED CHAPTER 2
OF THE UNITED STATES ARBITRATION ACT, 9 U.S.C. 201 ET DEQ., IN ORDER TO
IMPLEMENT THE CONVENTION.  SECTION 1 OF THE NEW CHAPTER, 9 U.S.C. 201,
PROVIDES UNEQUIVOCALLY THAT THE CONVENTION "SHALL BE ENFORCED IN UNITED
STATES COURTS IN ACCORDANCE WITH THIS CHAPTER." 

THE GOAL OF THE CONVENTION, AND THE PRINCIPAL PURPOSE UNDERLYING
AMERICAN ADOPTION AND IMPLEMENTATION OF IT, WAS TO ENCOURAGE THE
RECOGNITION AND ENFORCEMENT OF COMMERCIAL ARBITRATION AGREEMENTS IN
INTERNATIONAL CONTRACTS AND TO UNIFY THE STANDARDS BY WHICH AGREEMENTS
TO ARBITRATE ARE OBSERVED AND ARBITRAL AWARDS ARE ENFORCED IN THE
SIGNATORY COUNTRIES.  SEE CONVENTION ON THE RECOGNITION AND ENFORCEMENT
OF FOREIGN ARBITRAL AWARDS, S. EXEC. DOC. E, 90TH CONG., 2D SESS.
(1968); QUIGLEY, ACCESSION BY THE UNITED STATES TO THE UNITED NATIONS
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS, 70 YALE L.J. 1049 (1961).  ARTICLE II (1) OF THE CONVENTION
PROVIDES: 

"EACH CONTRACTING STATE SHALL RECOGNIZE AN AGREEMENT IN WRITING UNDER
WHICH THE PARTIES UNDERTAKE TO SUBMIT TO ARBITRATION ALL OR ANY
DIFFERENCES WHICH HAVE ARISEN OR WHICH MAY ARISE BETWEEN THEM IN
RESPECT OF A DEFINED LEGAL RELATIONSHIP, WHETHER CONTRACTUAL OR NOT,
CONCERNING A SUBJECT MATTER CAPABLE OF SETTLEMENT BY ARBITRATION."  IN
THEIR DISCUSSION OF THIS ARTICLE, THE DELEGATES TO THE CONVENTION
VOICED FREQUENT CONCERN THAT COURTS OF SIGNATORY COUNTRIES IN WHICH AN
AGREEMENT TO ARBITRATE IS SOUGHT TO BE ENFORCED SHOULD NOT BE PERMITTED
TO DECLINE ENFORCEMENT OF SUCH AGREEMENTS ON THE BASIS OF PAROCHIAL
VIEWS OF THEIR DESIRABILITY OR IN A MANNER THAT WOULD DIMINISH THE
MUTUALLY BINDING NATURE OF THE AGREEMENTS.  SEE B. HAIGHT, COMVENTION
ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS:  SUMMARY
ANALYSIS OF RECORD OF UNITED NATIONS CONFERENCE, MAY/JUNE 1958, PP. 24
28 (1958).     WITHOUT REACHING THE ISSUE OF WHETHER THE CONVENTION,
APART FROM THE CONSIDERATIONS EXPRESSED IN THIS OPINION, WOULD REQUIRE
OF ITS OWN FORCE THAT THE AGREEMENT TO ARBITRATE BE ENFORCED IN THE
PRESENT CASE, WE THINK THAT THIS COUNTRY'S ADOPTION AND RATIFICATION OF
THE CONVENTION AND THE PASSAGE OF CHAPTER 2 OF THE UNITED STATES
ARBITRATION ACT PROVIDE STRONGLY PERSUASIVE EVIDENCE OF CONGRESSIONAL
POLICY CONSISTENT WITH THE DECISION WE REACH TODAY. 

 DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, AND MR. JUSTICE MARSHALL CONCUR, DISSENTING. 

RESPONDENT (ALBERTO-CULVER) IS A PUBLICLY HELD CORPORATION WHOSE
STOCK IS TRADED ON THE NEW YORK STOCK EXCHANGE.  ALBERTO-CULVER, A
DELAWARE CORPORATION, HAS ITS PRINCIPAL PLACE OF BUSINESS IN ILLINOIS. 
PETITIONER (SCHERK) OWNED A BUSINESS IN GERMANY, FIRMA LUDWIG SCHERK,
DEALING WITH COSMETICS AND TOILETRIES.  SCHERK OWNED VARIOUS TRADEMARKS
AND ALL OUTSTANDING SECURITIES OF A LIECHTENSTEIN CORPORATION (SEV) AND
OF A GERMAN CORPORATION, LODEVA.  SCHERK OWNED VARIOUS TRADEMARKS WHICH
WERE LICENSED TO MANUFACTURERS AND DISTRIBUTORS IN EUROPE AND IN THIS
COUNTRY.  SEV COLLECTED THE ROYALTIES ON THOSE LICENSES. 

ALBERTO-CULVER UNDERTOOK TO PURCHASE FROM SCHERK THE ENTIRE
ESTABLISHMENT--THE TRADEMARKS AND THE STOCK OF THE TWO CORPORATIONS;
AND LATER, ALLEGING IT HAD BEEN DEFRAUDED, BROUGHT THIS SUIT IN THE
UNITED STATES DISTRICT COURT IN ILLINOIS TO RESCIND THE AGREEMENT AND
TO OBTAIN DAMAGES. 

THE ONLY DEFENSE MATERIAL AT THIS STAGE OF THE PROCEEDING IS A
PROVISION OF THE CONTRACT PROVIDING THAT IF ANY CONTROVERSY OR CLAIM
ARISES UNDER THE AGREEMENT THE PARTIES AGREE IT WILL BE SETTLED
"EXCLUSIVELY" BY ARBITRATION UNDER THE RULES OF THE INTERNATIONAL
CHAMBER OF COMMERCE, PARIS, FRANCE. 

THE BASIC DISPUTE BETWEEN THE PARTIES CONCERNED ALLEGATIONS THAT THE
TRADEMARKS WHICH WERE BASIC ASSETS IN HE TRANSACTION WERE ENCUMBERED
AND THAT THEIR PURCHASE WAS INDUCED THROUGH SERIOUS INSTANCES OF
FRAUDULENT REPRESENTATIONS AND OMISSIONS BY SCHERK AND HIS AGENTS
WITHIN THE JURISDICTION OF THE UNITED STATES.  IF A QUESTION OF
TRADEMARKS WERE THE ONLY ONE INVOLVED, THE PRINCIPLE OF THE BREMEN V.
ZAPATA OFF-SHORE CO., 407 U.S. 1, WOULD BE CONTROLLING. 

WE HAVE HERE, HOWEVER, QUESTIONS UNDER THE SECURITIES EXCHANGE ACT
OF 1934, WHICH IN 3 (A) (10) DEFINES "SECURITY"  AS INCLUDING ANY
"NOTE, STOCK, TREASURY STOCK, BOND, DEBENTURE, CERTIFICATE OF INTEREST
OR PARTICIPATION IN ANY PROFIT-SHARING AGREEMENT . . . ."  15 U.S.C.
78C (A) (10).  WE HELD IN TCHEREPNIN V. KNIGHT, 389 U.S. 332, AS
RESPECTS 3 (A) (10): 

     "(REMEDIAL LEGISLATION SHOULD BE CONSTRUED BROADLY TO

  EFFECTUATE ITS PURPOSES.  THE SECURITIES EXCHANGE ACT QUITE

  CLEARLY FALLS INTO THE CATEGORY OF REMEDIAL LEGISLATION.  ONE OF

  ITS CENTRAL PURPOSES IS TO PROTECT INVESTORS THROUGH THE

  REQUIREMENT OF FULL DISCLOSURE BY ISSUERS OF SECURITIES, AND THE

  DEFINITION OF SECURITY IN 3(A)(10) NECESSARILY DETERMINES THE

  CLASSES OF INVESTMENTS AND INVESTORS WHICH WILL RECEIVE THE ACT'S

  PROTECTIONS.  FINALLY, WE ARE REMINDED THAT, IN SEARCHING FOR THE

  MEANING AND SCOPE OF THE WORD 'SECURITY' IN THE ACT, FORM SHOULD

  BE DISREGARDED FOR SUBSTANCE AND THE EMPHASIS SHOULD BE ON

  ECONOMIC REALITY."  ID., AT 336. 

USE OF AGENCIES OF INTERSTATE COMMERCE OR THE MAILS "(TO USE OR EMPLOY,
IN CONNECTION WITH THE PURCHASE OR SALE OF ANY SECURITY," WHETHER OR
NOT REGISTERED ON A NATIONAL SECURITIES EXCHANGE, "ANY MANIPULATIVE OR
DECEPTIVE DEVICE OR CONTRIVANCE IN CONTRAVENTION OF SUCH RULES AND
REGULATIONS AS THE COMMISSION MAY PRESCRIBE."  15 U.S.C. 78J (B). 

ALBERTO-CULVER, AS NOTED, IS NOT A PRIVATE PERSON BUT A CORPORATION
WITH PUBLICLY HELD STOCK LISTED ON THE NEW YORK STOCK EXCHANGE.  IF IT
IS TO BE BELIEVED, IF IN OTHER WORDS THE ALLEGATIONS MADE ARE PROVED,
THE AMERICAN COMPANY HAS BEEN DEFRAUDED BY THE ISSUANCE OF "SECURITIES"
(PROMISSORY NOTES) FOR ASSETS WHICH ARE WORTHLESS OR OF A MUCH LOWER
VALUE THAN REPRESENTED.  THE REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION STATE: 

     "IT SHALL BE UNLAWFUL FOR ANY PERSON, DIRECTLY OR INDIRECTLY,

  BY THE USE OF ANY MEANS OR INSTRUMENTALITY OF INTERSTATE

  COMMERCE, OR OF THE MAILS OR OF ANY FACILITY OF ANY NATIONAL

  SECURITIES EXCHANGE, 

     "(A) TO EMPLOY ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD, 

 "(B) TO MAKE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR TO OMIT

  TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE

  STATEMENTS MADE, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH

  THEY WERE MADE, NOT MISLEADING, OR 

"(C) TO ENGAGE IN ANY ACT, PRACTICE, OR COURSE OF BUSINESS

  WHICH OPERATES OR WOULD OPERATE AS A FRAUD OR DECEIT UPON ANY

  PERSON, "IN CONNECTION WITH THE PURCHASE OR SALE OF ANY

  SECURITY."  17 CFR 240.10B-5. 


     "ANY CONDITION, STIPULATION, OR PROVISION BINDING ANY PERSON
TO

  WAIVE COMPLIANCE WITH ANY PROVISION OF THIS CHAPTER OR OF ANY

  RULE OR REGULATION THEREUNDER, OR OF ANY RULE OF AN EXCHANGE

  REQUIRED THEREBY SHALL BE VOID."  15 U.S.C. 78CCA). 

AND 29 (B) ADDS THAT "(EVERY CONTRACT" MADE IN VIOLATION OF THE ACT
"SHALL BE VOID."  /1/  NO EXCEPTION IS MADE FOR CONTRACTS WHICH HAVE AN
INTERNATIONAL CHARACTER. 

THE SECURITIES ACT OF 1933, 48 STAT. 84, 15 U.S.C. 77N, HAS A LIKE
PROVISION IN ITS 14: 

     "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." 

IN WILKO V. SWAN, 346 U.S. 427, A CUSTOMER BROUGHT SUIT AGAINST A
BROKERAGE HOUSE ALLEGING FRAUD IN THE SALE OF STOCK.  A MOTION WAS MADE
TO STAY THE TRIAL UNTIL AN ARBITRATION UNDER THE UNITED STATES
ARBITRATION ACE, 9 U.S.C. 3, AS PROVIDED IN THE CUSTOMER'S CONTRACT. 
THE COURT HELD THAT AN AGREEMENT FOR ARBITRATION WAS A "STIPULATION"
WITHIN THE MEANING OF 14 WHICH SOUGHT TO "WAIVE" COMPLIANCE WITH THE
SECURITIES ACT.  WE ACCORDINGLY HELD THAT THE COURTS, NOT THE
ARBITRATION TRIBUNALS, HAD JURISDICTION OVER SUITS UNDER THAT ACT.  THE
ARBITRATION AGENCY, WE HELD, WAS BOUND BY OTHER STANDARDS WHICH WERE
NOT NECESSARILY CONSISTENT WITH THE 1933 ACT.  WE SAID: 

"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 . . . TO APPLY TO
WAIVER OF JUDICIAL TRIAL AND REVIEW."  346 U.S., AT 437. 

WILKO WAS HELD BY THE COURT OF APPEALS TO CONTROL THIS CASE--AND
PROPERLY SO. 

THE COURT DOES NOT CONSIDER THE QUESTION WHETHER A "SECURITY" IS
INVOLVED IN THIS CASE, SAYING IT WAS NOT RAISED BY PETITIONER.  A
RESPONDENT, HOWEVER, HAS THE RIGHT TO URGE ANY ARGUMENT TO SUPPORT THE
JUDGMENT IN HIS FAVOR (SAVE POSSIBLY QUESTIONS OF VENUE, SEE PEORIA R.
CO. V. UNITED STATES, 263 U.S. 528, 536; UNITED STATES V. AMERICAN
RAILWAY EXPRESS CO., 265 U.S. 425, 435 - 436, AND 436 N. 11), EVEN
THOSE NOT PASSED UPON BY THE COURT BELOW AND ALSO CONTENTIONS REJECTED
BELOW.  LANGNES V. GREEN, 282 U.S. 531, 535 - 539; WALLING V. GENERAL
INDUSTRIES CO., 330 U.S. 545, 547 N.5.  THE COURT OF APPEALS HELD THAT
"SECURITIES" WITHIN THE MEANING OF THE 1934 ACT WERE INVOLVED HERE, 484
F.2D 611, 615.  THE BRIEF OF THE RESPONDENT IS BASED ON THE PREMISE
THAT "SECURITIES " ARE INVOLVED HERE; AND PETITIONER HAS NOT QUESTIONED
THAT RULING OF THE COURT OF APPEALS. 

IT COULD PERHAPS BE AUGUED THAT WILKO DOES NOT GOVERN BECAUSE IT
INVOLVED A LITTLE CUSTOMER PITTED AGAINST A BIG BROKERAGE HOUSE, WHILE
WE DEAL HERE WITH SOPHISTICATED BUYERS AND SELLERS:  SCHERK, A POWERFUL
GERMAN OPERATOR, AND ALBERTO-CULVER, AN AMERICAN BUSINESS SURROUNDED
AND PROTECTED BY LAWYERS AND EXPERTS.  BUT THAT WOULD MISS THE POINT OF
THE PROBLEM.  THE ACT DOES NOT SPEAK IN TERMS OF "SOPHISTICATED" AS
OPPOSED TO "UNSOPHISTICATED"  PEOPLE DEALING IN SECURITIES.  THE RULES
WHEN THE GIANTS PLAY ARE THE SAME AS WHEN THE PYGMIES ENTER THE
MARKET. 

IF THERE ARE VICTIMS HERE, THEY ARE NOT ALBERTO-CULVER THE
CORPORATION, BUT THE THOUSANDS OF INVESTORS WHO ARE THE SECURITY
HOLDERS IN ALBERTO-CULVER.  IF THERE IS FRAUD AND THE PROMISSORY NOTES
ARE EXCESSIVE, THE IMPACT IS ON THE EQUITY IN ALBERTO-CULVER. 

MOREOVER, THE SECURITIES MARKET THESE DAYS IS NOT MADE UP OF A HOST
OF SMALL PEOPLE SCRAMBLING TO GET IN AND OUT OF STOCKS OR OTHER
SECURITIES.  THE MARKETS ARE OVERSHADOWED BY HUGE INSTITUTIONAL
TRADERS.  /2/  THE SO-CALLED "OFF-SHORE FUNDS," OF WHICH SCHERK IS A
MEMBER, PRESENT PERPLEXING PROBLEMS UNDER BOTH THE 1933 AND 1934 ACTS. 
/3/  THE TENDENCY OF AMERICAN INVESTORS TO INVEST INDIRECTLY AS THROUGH
MUTUAL FUNDS /4/  MAY CHANGE THE CHARACTER OF THE REGULATION BUT NOT
ITS NEED. 

THERE HAS BEEN MUCH SUPPORT FOR ARBITRATION OF DISPUTES; AND IT MAY
BE THE SUPERIOR WAY OF SETTLING SOME DISAGREEMENTS.  IF A AND B WERE
QUARRELING OVER A TRADEMARK AND THERE WAS AN ARBITRATION CLAUSE IN THE
CONTRACT, THE POLICY OF CONGRESS IN IMPLEMENTING THE UNITED NATIONS
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS, AS IT DID IN 9 U.S.C. 201 ET SEQ., WOULD PREVAIL.  BUT THE ACT
DOES NOT SUBSTITUTE AN ARBITER FOR THE SETTLEMENT OF DISPUTES UNDER THE
1933 AND 1934 ACTS.  ART. II (3) OF THE CONVENTION SAYS: 

     "THE COURT OF A CONTRACTING STATE, WHEN SEIZED OF AN ACTION IN

  A MATTER IN RESPECT OF WHICH THE PARTIES HAVE MADE AN AGREEMENT

  WITHIN THE MEANING OF THIS ARTICLE, SHALL, AT THE REQUEST OF ONE

  OF THE PARTIES, REFER THE PARTIES TO ARBITRATION, UNLESS IT FINDS

  THAT THE SAID AGREEMENT IS NULL AND VOID, INOPERATIVE OR

  INCAPABLE OF BEING PERFORMED."  /5/  (1970) 3 U.S.T. 2517, 2819,

  T.I.A.S. NO. 6997. 

BUT 29(A) OF THE 1934 ACT MAKES AGREEMENTS TO ARBITRATE LIABILITIES
UNDER 10 OF TH ACT "VOID" AND "INOPERATIVE."  CONGRESS HAS SPECIFIED A
PRECISE WAY WHEREBY BIG AND SMALL INVESTORS WILL BE PROTECTED AND THE
RULES UNDER WHICH THE ALBERTO-CULVER'S OF THIS NATION SHALL OPERATE. 
THEY OR THEIR LAWYERS CANNOT WAIVE THOSE STATUTORY CONDITIONS, FOR OUR
CORPORATE GIANTS ARE NOT PRINCIPALITIES OF POWER BUT GUARDIANS OF A
HOST OF WARDS UNABLE TO CARE FOR THEMSELVES.  IT IS THESE WARDS THAT
THE 1934 ACT TRIES TO PROTECT.  /6/  NOT A WORD IN THE CONVENTION
GOVERNING AWARDS ADOPTS THE STANDARDS WHICH CONGRESS HAS PASSED TO
PROTECT THE INVESTORS UNDER THE 1934 ACT.  IT IS PECULIARLY APPROPRIATE
THAT WE ADHERE TO WILKO--MORE SO EVEN THAN WHEN WILKO WAS DECIDED. 
HUGE FOREIGN INVESTMENTS ARE BEING MADE IN OUR COMPANIES.  IT IS
IMPORTANT THAT AMERICAN STANDARDS OF FAIRNESS IN SECURITY DEALINGS
GOVERN THE DESTINIES OF AMERICAN INVESTORS UNTIL CONGRESS CHANGES THESE
STANDARDS. 

THE COURT FINDS IT UNNECESSARY TO CONSIDER SCHERK'S ARGUMENT THAT
THIS CASE IS DISTINGUISHABLE FROM WILKO IN THAT WILKO INVOLVED PARTIES
OF UNEQUAL BARGAINING STRENGTH.  ANTE, AT 512 - 513, N. 6.  INSTEAD,
THE COURT RESTS ITS CONCLUSION ON THE FACT THAT THIS WAS AN
"INTERNATIONAL"  AGREEMENT, WITH AN AMERICAN CORPORATION INVESTING IN
THE STOCK AND PROPERTY OF FOREIGN BUSINESSES, AND SPEAKS FAVORABLY OF
THE CERTAINTY WHICH INHERES WHEN PARTIES SPECIFY AN ARBITRAL FORUM FOR
RESOLUTION OF DIFFERENCES IN "ANY CONTRACT TOUCHING TWO OR MORE
COUNTRIES." 

THIS INVOCATION OF THE "INTERNATIONAL CONTRACT" TALISMAN MIGHT BE
APPLIED TO A SITUATION WHERE, FOR EXAMPLE, AN INTEREST IN A FOREIGN
COMPANY OR MUTUAL FUND WAS SOLD TO AN UTTERLY UNSOPHISTICATED AMERICAN
CITIZEN, WITH MATERIAL FRAUDULENT MISREPRESENTATIONS MADE IN THIS
COUNTRY.  THE ARBITRATION CLAUSE COULD APPEAR IN THE FINE PRINT OF A
FORM CONTRACT, AND STILL BE SUFFICIENT TO PRECLUDE RECOURSE TO OUR
COURTS, FORCING THE DEFRAUDED CITIZEN TO ARBITRATION IN PARIS TO
VINDICATE HIS RIGHTS.  /7/ 

IT HAS BEEN RECOGNIZED THAT THE 1934 ACT, INCLUDING THE PROTECTIONS
OF RULE 10B-5, APPLIES WHEN FOREIGN DEFENDANTS HAVE DEFRAUDED AMERICAN
INVESTORS, PARTICULARLY WHEN AS ALLEGED HERE, /8/  THEY HAVE PROFITED
BY VIRTUE OF PROSCRIBED CONDUCT WITHIN OUR BOUNDARIES.  THIS IS TRUE
EVEN WHEN THE DEFENDANT IS ORGANIZED UNDER THE LAWS OF A FOREIGN
COUNTRY, IS CONDUCTING MUCH OF ITS ACTIVITY OUTSIDE THE UNITED STATES,
AND IS THEREFORE GOVERNED LARGELY BY FOREIGN LAW.  /9/  THE LANGUAGE OF
29 OF THE 1934 ACT DOES NOT IMMUNIZE SUCH INTERNATIONAL TRANSACTIONS,
AND THE UNITED NATIONS CONVENTION PROVIDES THAT A FORUM COURT IN WHICH
A SUIT IS BROUGHT NEED NOT ENFORCE AN AGREEMENT TO ARBITRATE WHICH IS
"VOID" AND "INOPERATIVE" AS CONTRARY TO ITS PUBLIC POLICY.  /10/  WHEN
A FOREIGN CORPORATION UNDERTAKES FRAUDULENT ACTION WHICH SUBJECTS IT TO
THE JURISDICTION OF OUR FEDERAL SECURITIES LAWS, NOTHING JUSTIFIES THE
CONCLUSION THAT ONLY A DILUTED VERSION OF THOSE LAWS PROTECTS AMERICAN
INVESTORS. 

ONE TO WAIVE COMPLIANCE WITH "ANY PROVISION"  OF THE ACT SHALL BE VOID,
AND THE ACT EXPRESSLY PROVIDES THAT THE FEDERAL DISTRICT COURTS SHALL
HAVE "EXCLUSIVE JURISDICTION"  OVER SUITS BROUGHT UNDER THE ACT.  15
U.S.C. 78AA.  THE COURT APPEARS TO ATTACH SOME SIGNIFICANCE TO THE FACT
THAT THE SPECIFIC PROVISIONS OF THE 1933 ACT INVOLVED IN WILKO ARE NOT
DUPLICATED IN THE 1934 ACT, WHICH IS INVOLVED IN THIS CASE.  WHILE
ALBERTO-CULVER WOULD NOT HAVE THE RIGHT TO SUE IN EITHER A STATE OR
FEDERAL FORUM AS DID THE PLAINTIFF IN WILKO, 346 U.S., AT 431, THE
COURT DEPRIVES IT OF ITS RIGHT TO HAVE ITS RULE 10B-5 CLAIM HEARD IN A
FEDERAL COURT. WE SPOKE AT LENGTH IN WILKO OF THIS PROBLEM, ELUCIDATING
THE UNDESIRABLE EFFECTS OF REMITTING A SECURITIES PLAINTIFF TO AN
ARBITRAL, RATHER THAN A JUDICIAL, FORUM.  HERE, AS IN WILDO, THE
ALLEGATIONS OF FRAUDULENT MISREPRESENTATION WILL INVOLVE "SUBJECTIVE
FINDINGS ON THE PURPOSE AND KNOWLEDGE" OF THE DEFENDANT, QUESTIONS ILL
DETERMINED BY ARBITRATORS WITHOUT JUDICIAL INSTRUCTION ON THE LAW.  SEE
ID., AT 435.  AN ARBITRAL AWARD CAN BE MADE WITHOUT EXPLICATION OF
REASONS AND WITHOUT DEVELOPMENT OF A RECORD, SO THAT THE ARBITRATOR'S
CONCEPTION OF OUR STATUTORY REQUIREMENT MAY BE ABSOLUTELY INCORRECT YET
FUNCTIONALLY UNREVIEWABLE, EVEN WHEN THE ARBITRATOR SEEKS TO APPLY OUR
LAW.  WE RECOGNIZED IN WILKO THAT THERE IS NO JUDICIAL REVIEW
CORRESPONDING TO REVIEW OF COURT DECISIONS.  ID., AT 436 - 437.  THE
EXTENSIVE PRETRIAL DISCOVERY PROVIDED BY THE FEDERAL RULES OF CIVIL
PROCEDURE FOR ACTIONS IN DISTRICT COURT WOULD NOT BE AVAILABLE.  AND
THE WIDE CHOICE OF VENUE PROVIDED BY THE 1934 ACT 15 U.S.C. 78AA, WOULD
BE FORFEITED.  SEE WILKO V. SWAN, SUPRA, AT 431, 435.  THE LOSS OF THE
PROPER JUDICIAL FORUM CARRIES WITH IT THE LOSS OF SUBSTANTIAL RIGHTS. 
/11/ 

WHEN A DEFENDANT, AS ALLEGED HERE, HAS, THROUGH PROSCRIBED ACTS
WITHIN OUR TERRITORY, BROUGHT ITSELF WITHIN THE KEN OF FEDERAL
SECURITIES REGULATION, A FACT NOT DISPUTED HERE, THOSE LAWS--INCLUDING
THE CONTROLLING PRINCIPLES OF WILKO--APPLY WHETHER THE DEFENDANT IS
FOREIGN OR AMERICAN, AND WHETHER OR NOT THERE ARE TRANSNATIONAL
ELEMENTS IN THE DEALINGS.  THOSE LAWS ARE RENDERED A CHIMERA WHEN
FOREIGN CORPORATIONS OR FUNDS--UNLIKE DOMESTIC DEFENDANTS--CAN NULLIFY
THEM BY VIRTUE OF ARBITRATION CLAUSES WHICH SEND DEFRAUDED AMERICAN
INVESTORS TO THE UNCERTAINTY OF ARBITRATION ON FOREIGN SOIL, OR, IF
THOSE INVESTORS CANNOT AFFORD TO ARBITRATE THEIR CLAIMS IN A FAR-OFF
FORUM, TO NO REMEDY AT ALL. 

MOREOVER, THE INTERNATIONAL AURA WHICH THE COURT GIVES THIS CASE IS
OMINOUS.  WE NOW HAVE MANY MULTINATIONAL CORPORATIONS IN VAST
OPERATIONS AROUND THE WORLD--EUROPE, LATIN AMERICA, THE MIDDLE EAST,
AND ASIA.  /12/  THE INVESTMENTS OF MAY AMERICAN INVESTORS TURN ON
DEALINGS BY THESE COMPANIES.  UP TO THIS DAY, IT HAS BEEN ASSUMLED BY
REASON OF WILKO THAT THEY WERE ALL PROTECTED BY OUR VARIOUS FEDERAL
SECURITIES ACTS.  IF THESE GUARANTEES ARE TO BE REMOVED, IT SHOULD TAKE
A LEGISLATIVE ENACTMENT.  I WOULD ENFORCE OUR LAWS AS THEY STAND,
UNLESS CONGRESS MAKES AN EXCEPTION. 

THE VIRTUE OF CERTAINTY IN INTERNATIONAL AGREEMENTS MAY BE
IMPORTANT, BUT CONGRESS HAS DICTATED THAT WHEN THERE ARE SUFFICIENT
CONTACTS FOR OUR SECURITIES LAWS TO APPLY, THE POLICIES EXPRESSED IN
THOSE LAWS TAKE PRECEDENCE.  SECTION 29 OF THE 1934 ACT, WHICH RENDERS
ARBITRATION CLAUSES VOID AND INOPERATIVE, RECOGNIZES NO EXCEPTION FOR
FRAUDULENT DEALINGS WHICH INCIDENTALLY HAVE SOME INTERNATIONAL
FACTORS.  THE CONVENTION MAKES PROVISION FOR SUCH NATIONAL PUBLIC
POLICY IN ART. II(3).  FEDERAL JURISDICTION UNDER THE 1934 ACT WILL
ATTACH ONLY TO SOME INTERNATIONAL TRANSACTIONS, BUT WHEN IT DOES, THE
PROTECTIONS AFFORDED INVESTORS SUCH AS ALBERTO-CULVER CAN ONLY BE FULL
FLEDGED. 

/1/  SECTION 29 (B) READS:  "EVERY CONTRACT MADE IN VIOLATION OF ANY
PROVISION OF THIS CHAPTER OR OF ANY RULE OR REGULATION THEREUNDER, AND
EVERY CONTRACT (INCLUDING ANY CONTRACT FOR LISTING A SECURITY ON AN
EXCHANGE) HERETOFORE OR HEREAFTER MADE, THE PERFORMANCE OF WHICH
INVOLVES THE VIOLATION OF, OR THE CONTINUANCE OF ANY RELATIONSHIP OR
PRACTICE IN VIOLATION OF, ANY PROVISION OF THIS CHAPTER OR ANY RULE OR
REGULATION THEREUNDER, SHALL BE VOID (1) AS REGARDS THE RIGHTS OF ANY
PERSON WHO, IN VIOLATION OF SUCH PROVISION, RULE, OR REGULATION, SHALL
HAVE MADE OR ENGAGED IN THE PERFORMANCE OF ANY SUCH CONTRACT, AND (2)
AS REGARDS THE RIGHTS OF ANY PERSON WHO, NOT BEING A PARTY TO SUCH
CONTRACT, SHALL HAVE ACQUIRED ANY RIGHT THEREUNDER WITH ACTUAL
KNOWLEDGE OF THE FACTS BY REASON OF WHICH THE MAKING OR PERFORMANCE OF
SUCH CONTRACT WAS IN VIOLATION OF ANY SUCH PROVISION, RULE, OR
REGULATION . . . ."  15 U.S.C. 78CCB). 

/2/  SEE INSTITUTIONAL INVESTOR STUDY REPORT OF THE SEC, H.R. DOC.
NO. 92 - 64 (1971), PARTICULARLY VOL.4. 

/3/  ID., VOL 1, P XVI; VOL. 3, P 879 ET SEQ. 

/4/  ID., VOL. 1, P. XIX; VOL. 2, P. 215 ET SEQ. 

/5/  THE CONVENTION ALSO PERMITS THAT ARBITRAL AWARDS NOT BE
RECOGNIZED AND ENFORCED WHEN A COURT IN THE COUNTRY WHERE ENFORCEMENT
IS SOUGHT FINDS THAT "(THE RECOGNITION OR ENFORCEMENT OF THE AWARD
WOULD BE CONTRARY TO THE PUBLIC POLICY OF THAT COUNTRY."  ART. V
(2)(B).  (1970) 3 U.S.T. 2517, 2520, T.I.A.S. NO. 6997.  IT ALSO
PROVIDES THAT RECOGNITION OF AN AWARD MAY BE REFUSED WHEN THE
ARBITRATION AGREEMENT "IS NOT VALID UNDER THE LAW TO WHICH THE PARTIES
HAVE SUBJECTED IT," IN THIS CASE THE LAWS OF ILLINOIS.  ART. V (1)(A). 
SEE N. 10, INFRA. 

/6/  REQUIREMENTS PROMULGATED UNDER THE 1934 ACT REQUIRE DISCLOSURE
TO SECURITY HOLDERS OF CORPORATE ACTION WHICH MAY AFFECT THEM. 
EXTENSIVE ANNUAL REPORTS MUST BE FILED WITH THE SEC INCLUDING, INTER
ALIA, FINANCIAL FIGURES, CHANGES IN THE CONDUCT OF BUSINESS, THE
ACQUISITION OR DISPOSITION OF ASSETS, INCREASES OR DECREASES IN
OUTSTANDING SECURITIES, AND EVEN THE IMPORTANCE TO THE BUSINESS OF
TRADEMARKS HALD.  SEE 17 CFR 240.13A - 1, 249.310; 3 CCH FED. SEC. L.
REP. 31,101 ET SEQ. (FORM 10-5).  THE COMMISSION HAS PROPOSED THAT
CORPORATIONS FURNISH A COPY OF ANNUAL REPORTS FILED WITH IT TO ANY
SECURITY HOLDER WHO IS SOLICITED FOR A PROXY AND REQUESTS THE REPORT,
39 FED. REG. 3836.  CURRENT REPORTS MUST BE FILED WITH THE SEC BY AN
ISSUER OF SECURITIES WHEN SUBSTANTIAL EVENTS OCCUR, AS WHEN THE RIGHTS
EVIDENCED BY ANY CLASS OF SECURITIES ARE MATERIALLY ALTERED BY THE
ISSUANCE OF ANOTHER CLASS OF SECURITIES OR WHEN AN ISSUER HAS ACQUIRED
A SIGNIFICANT AMOUNT OF ASETS OTHER THAN IN THE ORDINARY COURSE OF
BUSINESS.  SEE 17 CFR 240.13A - 11, 249.308; 3 CCH FED. SEC. L. REP.
31,001 ET SEQ. (FORM 8-K). 

THE COMMISSION, RECOGNIZING THAT THE FORM 10-K REPORTS FILED
ANNUALLY WITH IT MIGHT BE EXCESSIVELY ABSTRUSE FOR SECURITY HOLDERS,
SEE 39 FED. REG. 3835, HAS PROPOSED THAT THE ANNUAL REPORTS DISTRIBUTED
TO SECURITY HOLDERS IN CONNECTION WITH ANNUAL MEETINGS AND SOLICITATION
OF PROXIES PROVIDE SUBSTANTIALLY GREATER AMOUNTS OF MEANINGFUL
INFORMATION THAN REQUIRED PRESENTLY.  THESE ANNUAL REPORTS WOULD
INCLUDE A DESCRIPTION OF THE BUSINESS OF THE ISSUER, A SUMMARY OF
OPERATIONS, EXPLANATION OF CHANGES IN REVENUES AND EXPENSES,
INFORMATION ON THE LIQUIDITY POSITION AND THE WORKING CAPITAL
REQUIREMENTS OF THE ISSUER, AND IDENTIFICATION OF MANAGEMENT AND
PERFORMANCE ON THE MARKET OF THE ISSUER'S SECURITIES.  SEE 39 FED. REG.
3834 - 3838. 

/7/  THE COURT CONCEDES, ANTE, AT 517 N. 11, THAT THERE MAY BE
SITUATIONS WHERE FOREIGN CONTACTS WERE "SO INSIGNIFICANT OR ATTENUATED"
THAT WILKO WOULD APPLY AND AN AMERICAN COURT WOULD NOT ENFORCE AN
ARBITRATION AGREEMENT IN AN INTERNATIONAL CONTRACT.  THE RECOGNITION
THAT "INTERNATIONAL" CONTRACTS MAY IN FACT INVOLVE SIGNIFICANT DIRECT
CONTACTS WITH THIS COUNTRY IS REALISTIC AND SALUTARY.  BUT THE COURT BY
ITS CONCESSION UNDERMINES SOMEWHAT ITS RELIANCE ON ITS ADMONITION-
ITSELF SUPPORTED ONLY BY SPECULATION--THAT "(A) CONTRACTUAL PROVISION
SPECIFYING IN ADVANCE THE FORUM IN WHICH DISPUTES SHALL BE LITIGATED .
. . IS . . . AN ALMOST INDISPENSABLE PRECONDITION TO ACHIEVEMENT OF THE
ORDERLINESS AND PREDICTABILITY ESSENTIAL TO ANY INTERNATIONAL BUSINESS
TRANSACTION."  UNCERTAINTY AND A "DICEY ATMOSPHERE," SUPPOSEDLY
DESTRUCTIVE OF INTERNATIONAL CONTRACTS, MAY PERSIST FOR MANY
CONTRACTS.  THE PARTIES TO AN INTERNATIONAL CONTRACT MAY NOT IN FACT BE
BOUND BY A "SOLEMN AGREEMENT" TO ARBITRATE, FOR AN AMERICAN COURT COULD
FIND, AT A MUCH LATER DATE, SUFFICIENT CONTACTS WITH THIS COUNTRY TO
REQUIRE THE APPLICATION OF WILKO. 

/8/  THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS NOTED
ALLEGATIONS THAT SCHERK HAD FAILED TO STATE A MATERIAL FACT, THE
OMISSION OF WHICH WOULD HAVE BEEN MISLEADING, SEE 17 CFR 240.10B-5 (B),
DURING CRUCIAL NEGOTIATIONS IN MELROSE PARK, ILLINOIS, AND THAT
COMMUNICATIONS BETWEEN ALBERTO-CULVER AND SCHERK'S ATTORNEY CONCERNING
THE VALIDITY AND VALUE OF THE TRADEMARKS OCCURRED WITHIN THE
TERRITORIAL JURISDICTION OF THE UNITED STATES.  FINALLY, THE DISTRICT
COURT NOTED THAT THE FULL ECONOMIC IMPACT OF THE ALLEGED FRAUD OCCURRED
WITHIN THE UNITED STATES. 

/9/  SEE, E.G., LEASCO DATA PROCESSING EQUIPMENT CORP. V. MAXWELL,
468 F. 2D 1326, 1334 - 1339 (CA2 1972); TRAVIS V. ANTHES IMPERIAL LTD.,
473 F.2D 515, 523 - 528 (CA8 1973); SEC V. UNITED FINANCIAL GROUP,
INC., 474 F.2D 354 (CA9 1973); SCHOENBAUM V. FIRSTBROOK, 435 F.2D 200
(CA2 1968); ROTH V. FUND OF FUNDS, 279 F.SUPP.  935, AFF'D, 435 F.2D
421 (CA2 1968). 

/10/  A SUMMARY OF THE CONFERENCE PROCEEDINGS WHICH LED TO THE
ADOPTION OF THE UNITED NATIONS CONVENTION WAS PREPARED BY G.W. HAIGHT,
WHO SERVED AS A MEMBER OF THE INTERNATIONAL CHAMBER OF COMMERCE
DELEGATION TO THE CONFERENCE.  HAIGHT, CONVENTION ON THE RECOGNITION
AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS:  SUMMARY ANALYSIS OF RECORD
OF UNITED NATIONS CONFERENCE, MAY/JUNE 1958 (1958). 

WHEN ART. II(3) WAS BEING DISCUSSED, THE ISRAELI DELEGATE POINTED
OUT THAT WHILE A COURT COULD, UNDER THE DRAFT CONVENTION AS IT THEN
STOOD, REFUSE ENFORCEMENT OF AN AWARD WHICH WAS INCOMPATIBLE WITH
PUBLIC POLICY, "'THE COURT HAD TO REFER PARTIES TO ARBITRATION WHETHER
OR NOT SUCH REFERENCE WAS LAWFUL OR INCOMPATIBLE WITH PUBLIC POLICY.'" 
ID., AT 27.  THE GERMAN DELEGATE OBSERVED THAT THIS DIFFICULTY AROSE
FROM THE OMISSION IN ART. II (3) "'OF ANY WORDS WHICH WOULD RELATE THE
ARBITRAL AGREEMENT TO AN ARBITRAL AWARD CAPABLE OF ENFORCEMENT UNDER
THE CONVENTION.'"  IBID. 

HAIGHT CONTINUES: 

"WHEN THE GERMAN PROPOSAL WAS PUT TO A VOTE, IT FAILED TO OBTAIN A
TWO-THIRDS MAJORITY (13 TO 9) AND THE ARTICLE WAS THUS ADOPTED WITHOUT
ANY WORDS LINKING AGREEMENTS TO THE AWARDS ENFORCEABLE UNDER THE
CONVENTION.  NOR WAS THIS OMISSION CORRECTED IN THE REPORT OF THE
DRAFTING COMMITTEE (L.61), ALTHOUGH THE OBLIGATION TO REFER PARTIES TO
ARBITRATION WAS (AND STILL IS) QUALIFIED BY THE CLAUSE 'UNLESS IT FINDS
THAT THE AGREEMENT IS NULL AND VOID, INOPERATIVE OR INCAPABLE OF BEING
PERFORMED.' 

"AS THE APPLICABLE LAW IS NOT INDICATED, COURTS MAY UNDER THIS
WORDING BE ALLOWED SOME LATITUDE; THEY MAY FIND AN AGREEMENT INCAPABLE
OF PERFORMANCE IF IT OFFENDS THE LAW OR THE PUBLIC POLICY OF THE
FORUM.  APART FROM THIS LIMITED OPENING, THE CONFERENCE APPEARED
UNWILLING TO QUALIFY THE BROAD UNDERTAKING NOT ONLY TO RECOGNIZE BUT
ALSO TO GIVE EFFECT TO ARBITRAL AGREEMENTS."  ID., AT 28.  WHATEVER
"CONCERN" THE DELEGATES HAD THAT SIGNATORIES TO THE CONVENTION "NOT
PERMITTED TO DECLINE ENFORCEMENT OF SUCH AGREEMENTS ON THE BASIS OF
PAROCHIAL VIEWS OF THEIR DESIRABILITY," ANTE, AT 520 N. 15, IT WOULD
SEEM THAT THEY CONTEMPLATED THAT A COURT MAY DECLINE TO ENFORCE AN
AGREEMENT WHICH OFFENDS ITS LAW OR PUBLIC POLICY. 

THE COURT ALSO ATTEMPTS TO TREAT THIS CASE AS ONLY A MINOR VARIATION
OF THE BREMEN V. ZAPATA OFF-SHORE CO., 407 U.S. 1.  IN THAT CASE,
HOWEVER, THE COURT, PER BURGER, C.J., EXPLICITLY STATED THAT:  "A
CONTRACTUAL CHOICE-OF-FORUM CLAUSE SHOULD BE HELD UNENFORCEABLE IF
ENFORCEMENT WOULD CONTRAVENE A STRONG PUBLIC POLICY OC THE FORUM IN
WHICH SUIT IS BROUGHT, WHETHER DECLARED BY STATUTE OR BY JUDICIAL
DECISION."  ID., AT 15.  THAT IS INESCAPABLY THE CASE HERE, AS 29 OF
THE SECURITIES EXCHANGE ACT AND WILKO V. SWAN MAKE CLEAR.  NEITHER 29,
NOR THE CONVENTION ON INTERNATIONAL ARBITRATION, NOR THE BREMEN
JUSTIFIES ABANDONMENT OF A NATIONAL PUBLIC POLICY THAT SECURITIES
CLAIMS BE HEARD BY A JUDICIAL FORUM SIMPLY BECAUSE SOME INTERNATIONAL
ELEMENTS ARE INVOLVED IN A CONTRACT. 

/11/  THE AGREEMENTS IN THIS CASE PROVIDED THAT THE "LAWS OF THE
STATE OF ILLINOIS" ARE APPLICABLE.  EVEN IF HE ARBITRATION COURT SHOULD
READ THIS CLAUSE TO REQUIRE APPLICATION OF RULE 10B-5'S STANDARDS,
ALBERTO-CULVER'S VICTORY WOULD BE PYRRHIC.  THE ARBITRAL COURT MAY
IMPROPERLY INTERPRET THE SUBSTANTIVE PROTECTIONS OF THE RULE, AND IF IT
DOES ITS ERROR WILL NOT BE REVIEWABLE AS WOULD THE ERROR OF A FEDERAL
COURT.  AND THE ABILITY OF ALBERTO-CULVER TO PROSECUTE ITS CLAIM WOULD
BE EVISCERATED BY LACK OF DISCOVERY.  THESE ARE THE POLICY
CONSIDERATIONS WHICH UNDERLAY WILKO AND WHICH APPLY TO THE INSTANT CASE
AS WELL. 

/12/  SEE KNICKERBOCKER, OLIGOPOLISTIC REACTION AND MULTINATIONAL
ENTERPRISE (HAW.  UNIV.  1973); J.VAUPEL & J. CURHAN, THE WORLD'S
MULTINATIONAL ENTERPRISES (HARVARD UNIV.  1973).  SEE GENERALLY SENATE
COMMITTEE ON FINANCE, 93D CONG., 1ST SESS., IMPLICATIONS OF
MULTINATIONAL FIRMS FOR WORLD TRADE AND INVESTMENT AND FOR U.S. TRADE
AND LABOR (COMM. PRINT 1973); MORGAN, CONTROLLING THE MULTINATIONALS,
WASHINGTON POST, NOV. 17, 1973, P. A15; DIEBOLD, PRECARIOUS PATH OF THE
MULTINATIONALS, WALL STREET JOURNAL, AUG. 17, 1973, P. 6, COL. 4. 

ROBERT F. HANLEY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS LYNNE E. MCNOWN. 

FRANCIS J. HIGGINS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS A. CHARLES LAWRENCE. 

GERALD AKSEN ARGUED THE CAUSE FOR THE AMERICAN ARBITRATION ASSN. AS
AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE WHITNEY
NORTH SEYMOUR, COL NEIL CORBIN, RITA E. HAUSER, HOWARD M. HOLTZMANN,
ANDREAS F. LOWENFELD, JOHN R. STEVENSON, AND ROSEMARY S. PAGE. 
..END :







MORTON V. MANCARI, 417 U.S. 535 


       MORTON, SECRETARY OF THE INTERIOR, ET AL. V. MANCARI ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NEW MEXICO

NO. 73 - 362.  ARGUED APRIL 24, 1974--DECIDED JUNE 17, 1974;

           /1/  359 F. SUPP. 585, REVERSED AND REMANDED. 

/1/  TOGETHER WITH NO. 73-364, AMERIND V. MANCARI ET AL., ALSO ON
APPEAL FROM THE SAME COURT. 


    APPELLEES, NON-INDIAN EMPLOYEES OF THE BUREAU OF INDIAN AFFAIRS

  (BIA), BROUGHT THIS CLASS ACTION CLAIMING THAT THE EMPLOYMENT

  PREFERENCE FOR QUALIFIED INDIANS IN THE BIA PROVIDED BY THE

  INDIAN REORGANIZATION ACT OF 1934 CONTRAVENED THE

  ANTI-DISCRIMINATION PROVISIONS OF THE EQUAL EMPLOYMENT

  OPPORTUNITIES ACT OF 1972, AND DEPRIVED THEM OF PROPERTY RIGHTS

  WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AMENDMENT. 

  A THREE-JUDGE DISTRICT COURT HELD THAT THE INDIAN PREFERENCE WAS

  IMPLICITLY REPEALED BY 11 OF THE 1972 ACT PROSCRIBING RACIAL

  DISCRIMINATION IN MOST FEDERAL EMPLOYMENT, AND ENJOINED APPELLANT

  FEDERAL OFFICIALS FROM IMPLEMENTING ANY INDIAN EMPLOYMENT

PREFERENCE POLICY IN THE BIA.  HELD: 

     1.  CONGRESS DID NOT INTEND TO REPEAL THE INDIAN PREFERENCE,

  AND THE DISTRICT COURT ERRED IN HOLDING THAT IT WAS REPEALED BY

  THE 1972 ACT.  PP. 545 - 551. 

     (A) SINCE IN EXTENDING GENERAL ANTI-DISCRIMINATION MACHINERY
TO

  FEDERAL EMPLOYMENT IN 1972, CONGRESS IN NO WAY MODIFIED AND THUS

  REAFFIRMED THE PREFERENCES ACCORDED INDIANS BY 701(B) AND 703(I)

OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 FOR EMPLOYMENT BY

  INDIAN TRIBES OR BY PRIVATE INDUSTRIES LOCATED ON OR NEAR INDIAN

  RESERVATIONS, IT WOULD BE ANOMALOUS TO CONCLUDE THAT CONGRESS

  INTENDED TO ELIMINATE THE LONGSTANDING INDIAN PREFERENCES IN BIA

  EMPLOYMENT, AS BEING RACIALLY DISCRIMINATORY.  PP. 547 - 548. 

     (B) IN VIEW OF THE FACT THAT SHORTLY AFTER IT PASSED THE 1972

  ACT CONGRESS ENACTED NEW INDIAN PREFERENCE LAWS AS PART OF THE

  EDUCATION AMENDMENTS OF 1972, GIVING INDIANS PREFERENCE IN

  GOVERNMENT PROGRAMS FOR TRAINING TEACHERS OF INDIAN CHILDREN, IT

  IS IMPROBABLE THAT THE SAME CONGRESS CONDEMNED THE BIA PREFERENCE

  AS RACIALLY DISCRIMINATORY.  PP. 548 - 549. 

    (C) THE 1972 EXTENSION OF THE CIVIL RIGHTS ACT TO GOVERNMENT

  EMPLOYMENT BEING LARGELY JUST A CODIFICATION OF PRIOR

  ANTI-DISCRIMINATION EXECUTIVE ORDERS, WITH RESPECT TO WHICH

  INDIAN PREFERENCES HAD LONG BEEN TREATED AS EXCEPTIONS, THERE IS

  NO REASON TO PRESUME THAT CONGRESS AFFIRMATIVELY INTENDED TO

  ERASE SUCH PREFERENCES.  P. 549. 

     (D) THIS IS A PROTOTYPICAL CASE WHERE AN ADJUDICATION OF
REPEAL

  BY IMPLICATION IS NOT APPROPRIATE, SINCE THE INDIAN PREFERENCE IS

  A LONGSTANDING, IMPORTANT COMPONENT OF THE GOVERNMENT'S INDIAN

  PROGRAM, WHEREAS THE 1972 ANTI-DISCRIMINATION PROVISIONS, BEING

  AIMED AT ALLEVIATING MINORITY DISCRIMINATION IN EMPLOYMENT, ARE

  DESIGNED TO DEAL WITH AN ENTIRELY DIFFERENT PROBLEM.  THE TWO

  STATUTES, THUS NOT BEING IRRECONCILABLE, ARE CAPABLE OF

  CO-EXISTENCE, SINCE THE INDIAN PREFERENCE, AS A SPECIFIC STATUTE

APPLYING TO A SPECIFIC SITUATION, IS NOT CONTROLLED OR NULLIFIED

  BY THE GENERAL PROVISIONS OF THE 1972 ACT.  PP. 549 - 551. 

     2.  THE INDIAN PREFERENCE DOES NOT CONSTITUTE INVIDIOUS RACIAL

  DISCRIMINATION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE

  FIFTH AMENDMENT BUT IS REASONABLE AND RATIONALLY DESIGNED TO

  FURTHER INDIAN SELF-GOVERNMENT.  PP. 551 - 555. 

     (A) IF INDIAN PREFERENCE LAWS, WHICH WERE DERIVED FROM

  HISTORICAL RELATIONSHIPS AND ARE EXPLICITLY DESIGNED TO HELP ONLY

  INDIANS, WERE DEEMED INVIDIOUS RACIAL DISCRIMINATION, 25 U.S.C.

  IN ITS ENTIRETY WOULD BE EFFECTIVELY ERASED AND THE GOVERNMENT'S

  COMMITMENT TO INDIANS WOULD BE JEOPARDIZED.  PP. 551 - 553. 

(B) THE INDIAN PREFERENCE DOES NOT CONSTITUTE "RACIAL

DISCRIMINATION" OR EVEN "RACIAL" PREFERENCE, BUT IS RATHER AN

  EMPLOYMENT CRITERION DESIGNED TO FURTHER THE CAUSE OF INDIAN

  SELF-GOVERNMENT AND TO MAKE THE BIA MORE RESPONSIVE TO THE NEEDS

  OF ITS CONSTITUENT GROUPS.  PP. 553 - 554. 

     (C) AS LONG AS THE SPECIAL TREATMENT OF INDIANS CAN BE TIED

  RATIONALLY TO THE FULFILLMENT OF CONGRESS' UNIQUE OBLIGATION

  TOWARD INDIANS, SUCH LEGISLATIVE JUDGMENTS WILL NOT BE

  DISTURBED.  PP. 554 - 555.  BLACKMUN, J., DELIVERED THE OPINION

  FOR A UNANIMOUS COURT. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THE INDIAN REORGANIZATION ACT OF 1934, ALSO KNOWN AS THE WHEELER
HOWARD ACT, 48 STAT. 984, 25 U.S.C. 461, ACCORDS AN EMPLOYMENT
PREFERENCE FOR QUALIFIED INDIANS IN THE BUREAU OF INDIAN AFFAIRS (BIA
OR BUREAU).  APPELLEES, NON-INDIAN BIA EMPLOYEES, CHALLENGED THIS
PREFERENCE AS CONTRARY TO THE ANTI-DISCRIMINATION PROVISIONS OF THE
EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972, 78 STAT. 241, 42 U.S.C. 2000E
ET SEQ., AND AS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  A THREE-JUDGE FEDERAL DISTRICT COURT CONCLUDED THAT THE
INDIAN PREFERENCE UNDER THE 1934 ACT WAS IMPLIEDLY REPEALED BY THE 1972
ACT.  359 F. SUPP. 585 (NM 1973).  WE NOTED PROBABLE JURISDICTION IN
ORDER TO EXAMINE THE STATUTORY AND CONSTITUTIONAL VALIDITY OF THIS
LONGSTANDING INDIAN PREFERENCE.  414 U.S. 1142 (1974); 415 U.S. 946
(1974). 

        I 

472, PROVIDES: 

     "THE SECRETARY OF THE INTERIOR IS DIRECTED TO ESTABLISH

  STANDARDS OF HEALTH, AGE, CHARACTER, EXPERIENCE, KNOWLEDGE, AND

ABILITY FOR INDIANS WHO MAY BE APPOINTED, WITHOUT REGARD TO

  CIVIL-SERVICE LAWS, TO THE VARIOUS POSITIONS MAINTAINED, NOW OR

  HEREAFTER, BY THE INDIAN OFFICE, /1/  IN HTE ADMINISTRATION OF

  FUNCTIONS OR SERVICES AFFECTING ANY INDIAN TRIBE.  SUCH QUALIFIED

  INDIANS SHALL HEREAFTER HAVE THE PREFERENCE TO APPOINTMENT TO

  VACANCIES IN ANY SUCH POSITIONS."  /2/ 

IN JUNE 1972, PURSUANT TO THIS PROVISION, THE COMMISSIONER OF INDIAN
AFFAIRS, WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR, ISSUED A
DIRECTIVE (PERSONNEL MANAGEMENT LETTER NO. 72 - 12) (APP. 52) STATING
THAT THE BIA'S POLICY WOULD BE TO GRANT A PREFERENCE TO QUALIFIED
INDIANS NOT ONLY, AS BEFORE, IN THE INITIAL HIRING STAGE, BUT ALSO IN
THE SITUATION WHERE AN INDIAN AND A NON-INDIAN, BOTH ALREADY EMPLOYED
BY THE BIA, WERE COMPETING FOR A PROMOTION WITHIN THE BUREAU.  /3/  THE
RECORD INDICATES THAT THIS POLICY WAS IMPLEMENTED IMMEDIATELY. 

SHORTLY THEREAFTER, APPELLEES, WHO ARE NON-INDIAN EMPLOYEES OF THE
BIA AT ALBUQUERQUE, /4/  INSTITUTED THIS CLASS ACTION, ON BEHALF OF
THEMSELVES AND OTHER NON-INDIAN EMPLOYEES SIMILARLY SITUATED, IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO, CLAIMING
THAT THE "SO-CALLED 'INDIAN PREFERENCE STATUTES,'" APP. 15, WERE
REPEALED BY THE 1972 EQUAL EMPLOYMENT OPPORTUNITY ACT AND DEPRIVED THEM
OF RIGHTS TO PEOPERTY WITHOUT DUE PROCESS OF LAW, IN VIOLATION OF THE
FIFTH AMENDMENT.  /5/  NAMED AS DEFENDANTS WERE SECRETARY OF THE
INTERIOR, THE COMMISSIONER OF INDIAN AFFAIRS, AND THE BIA DIRECTORS FOR
THE ALBUQUERQUE AND NAVAJO AREA OFFICES.  APPELLEES CLAIMED THAT
IMPLEMENTATION AND ENFORCEMENT OF THE NEW PREFERENCE POLICY "PLACED AND
WILL CONTINUE TO PLACE (APPELLEES) AT A DISTINCT DISADVANTAGE IN
COMPETING FOR PROMOTION AND TRAINING PROGRAMS WITH INDIAN EMPLOYEES,
ALL OF WHICH HAS AND WILL CONTINUE TO SUBJECT THE (APPELLEES) TO
DISCRIMINATION AND DENY THEM EQUAL EMPLOYMENT OPPORTUNITY."  APP. 16. 

A THREE-JUDGE COURT WAS CONVENED PURSUANT TO 28 U.S.C. 2282 BECAUSE
THE COMPLAINT SOUGHT TO ENJOIN, AS UNCONSTITUTIONAL, THE ENFORCEMENT OF
A FEDERAL STATUTE.  APPELLANT AMERIND, A NONPROFIT ORGANIZATION
REPRESENTING INDIAN EMPLOYEES OF THE BIA, MOVED TO INTERVENE IN SUPPORT
OF THE PREFERENCE; THIS MOTION WAS GRANTED BY THE DISTRICT COURT AND
AMERIND THEREAFTER PARTICIPATED AT ALL STAGES OF THE LITIGATION. 

AFTER A SHORT TRIAL FOCUSING PRIMARILY ON HOW THE NEW POLICY, IN
FACT, HAS BEEN IMPLEMENTED, THE DISTRICT COURT CONCLUDED THAT THE
INDIAN PREFERENCE WAS IMPLICITLY REPEALED BY 11 OF THE EQUAL EMPLOYMENT
OPPORTUNITY ACT OF 1972, PUB. L. 92 - 261, 86 STAT. 111, 42 U.S.C.
2000E - 16(A) (1970 ED., SUPP. II), PROSCRIBING DISCRIMINATION IN MOST
FEDERAL EMPLOYMENT ON THE BASIS OF RACE.  /6/  HAVING FOUND THAT
CONGRESS REPEALED THE PREFERENCE, IT WAS UNNECESSARY FOR THE DISTRICT
COURT TO PASS ON ITS CONSTITUTIONALITY.  THE COURT PERMANENTLY ENJOINED
APPELLANTS "FROM IMPLEMENTING ANY POLICY IN THE BUREAU OF INDIAN
AFFAIRS WHICH WOULD HIRE, PROMOTE, OR REASSIGN ANY PERSON IN PERFERENCE
TO ANOTHER SOLELY FOR THE REASON THAT SUCH PERSON IS AN INDIAN."  THE
EXECUTION AND ENFORCEMENT OF THE JUDGMENT OF THE DISTRICT COURT WAS
STAYED BY MR. JUSTICE MARSHALL ON AUGUST 16, 1973, PENDING THE
DISPOSITION OF THIS APPEAL. 

        II 

THE FEDERAL POLICY OF ACCORDING SOME HIRING PREFERENCE TO INDIANS IN
THE INDIAN SERVICE DATES AT LEAST AS FAR BACK AS 1834.  /7/  SINCE THAT
TIME, CONGRESS REPEATEDLY HAS ENACTED VARIOUS PREFERENCES OF THE
GENERAL TYPE HERE AT ISSUE.  /8/  THE PURPOSE OF THESE PREFERENCES, AS
VARIOUSLY EXPRESSED IN THE LEGISLATIVE HISTORY, HAS BEEN TO GIVE
INDIANS A GREATER PARTICIPATION IN THEIR OWN SELF-GOVERNMENT; /9/  TO
FURTHER THE GOVERNMENT'S TRUST OBLIGATION TOWARD THE INDIAN TRIBES;
/10/  AND TO REDUCE THE NEGATIVE EFFECT OF HAVING NON-INDIANS
ADMINISTER MATTERS THAT AFFECT INDIAN TRIBAL LIFE.  /11/ 

THE PREFERENCE DIRECTLY AT ISSUE HERE WAS ENACTED AS AN IMPORTANT
PART OF THE SWEEPING INDIAN REORGANIZATION ACT OF 1934.  THE OVERRIDING
PURPOSE OF THAT PARTICULAR ACT WAS TO ESTABLISH MACHINERY WHEREBY
INDIAN TRIBES WOULD BE ABLE TO ASSUME A GREATER DEGREE OF SELF
GOVERNMENT, BOTH POLITICALLLY AND ECONOMICALLY.  /12/  CONGRESS WAS
SEEKING TO MODIFY THE THEN-EXISTING SITUATION WHEREBY THE PRIMARILY NON
INDIAN-STAFFED BIA HAD PLENARY CONTROL, FOR ALL PRACTICAL PURPOSES,
OVER THE LIVES AND DESTINIES OF THE FEDERALLY RECOGNIZED INDIAN
TRIBES.  INITIAL CONGRESSIONAL PROPOSALS WOULD HAVE DIMINISHED
SUBSTANTIALLY THE ROLE OF THE BIA BY TURNING OVER TO FEDERALLY
CHARTERED SELF-GOVERNING INDIAN COMMUNITIES MANY OF THE FUNCTIONS
NORMALLY PERFORMED BY THE BUREAU.  /13/  COMMITTEE SENTIMENT, HOWEVER,
RAN AGAINST SUCH A RADICAL CHANGE IN THE ROLE OF THE BIA.  /14/  THE
SOLUTION ULTIMATELY ADOPTED WAS TO STRENGTHEN TRIBAL GOVERNMENT WHILE
CONTINUING THE ACTIVE ROLE OF THE BIA, WITH THE UNDERSTANDING THAT THE
BUREAU WOULD BE MORE RESPONSIVE TO THE INTERESTS OF THE PEOPLE IT WAS
CREATED TO SERVE. 

ONE OF THE PRIMARY MEANS BY WHICH SELF-GOVERNMENT WOULD BE FOSTERED
AND THE BUREAU MADE MORE RESPONSIVE WAS TO INCREASE THE PARTICIPATION
OF TRIBAL INDIANS IN THE BIA OPERATIONS.  /15/  IN ORDER TO ACHIEVE
THIS END, IT WAS RECOGNIZED THAT SOME KIND OF PREFERENCE AND EXEMPTION
FROM OTHERWISE PREVAILING CIVIL SERVICE REQUIREMENTS WAS NECESSARY. 
/16/  CONGRESSMAN HOWARD, THE HOUSE SPONSOR, EXPRESSED THE NEED FOR THE
PREFERENCE: 

"THE INDIANS HAVE NOT ONLY BEEN THUS DEPRIVED OF CIVIC RIGHTS

  AND POWERS, BUT THEY HAVE BEEN LARGELY DEPRIVED OF THE

  OPPORTUNITY TO ENTER THE MORE IMPORTANT POSITIONS IN THE SERVICE

  OF THE VERY BUREAU WHICH MANAGES THEIR AFFAIRS.  THEORETICALLY,

  THE INDIANS HAVE THE RIGHT TO QUALIFY FOR THE FEDERAL CIVIL

  SERVICE.  IN ACTUAL PRACTICE THERE HAS BEEN NO ADEQUATE PROGRAM

  OF TRAINING TO QUALIFY INDIANS TO COMPETE IN THESE EXAMINATIONS,

  ESPECIALLY FOR TECHNICAL AND HIGHER POSITIONS; AND EVEN IF THERE

  WERE SUCH TRAINING, THE INDIANS WOULD HAVE TO COMPETE UNDER

  EXISTING LAW, ON EQUAL TERMS WITH MULTITUDES OF WHITE

  APPLICANTS.  . .  THE VARIOUS SERVICES ON THE INDIAN RESERVATIONS

ARE ACTUALLY LOCAL RATHER THAN FEDERAL SERVICES AND ARE

COMPARABLE TO LOCAL MUNICIPAL AND COUNTY SERVICES, SINCE THEY ARE

  DEALING WITH PURELY LOCAL INDIAN PROBLEMS.  IT SHOULD BE POSSIBLE

  FOR INDIANS WITH THE REQUISITE VOCATIONAL AND PROFESSIONAL

  TRAINING TO ENTER THE SERVICE OF THEIR OWN PEOPLE WITHOUT THE

  NECESSITY OF COMPETING WITH WHITE APPLICANTS FOR THESE

  POSITIONS.  THIS BILL PERMITS THEM TO DO SO."  78 CONG. REC.

  11729 (1934). 

CONGRESS WAS WELL AWARE THAT THE PROPOSED PREFERENCE WOULD RESULT IN
EMPLOYMENT DISADVANTAGES WITHIN THE BIA FOR NON-INDIANS.  /17/  NOT
ONLY WAS THIS DISPLACEMENT UNAVOIDABLE IF ROOM WERE TO BE MADE FOR
INDIANS, BUT IT WAS EXPLICITLY DETERMINED THAT GRADUAL REPLACEMENT OF
NON-INDIANS WITH INDIANS WITHIN THE BUREAU WAS A DESIRABLE FEATURE OF
THE ENTIRE PROGRAM FOR SELF-GOVERNMENT.  /18/  SINCE 1934,. THE BIA HAS
IMPLEMENTED THE PREFERENCE WITH A FAIR DEGREE OF SUCCESS.  THE
PERCENTAGE OF INDIANS EMPLOYED IN THE BUREAU ROSE FROM 34% IN 1934 TO
57% IN 1972.  THIS REVERSED THE FORMER DOWNWARD TREND, SE N. 16, SUPRA,
AND WAS DUE, CLEARLY , TO THE PRESENCE OF THE 1934 ACT.  THE
COMMISSIONER'S EXTENSION OF THE PREFERENCE IN 1972 TO PROMOTIONS WITHIN
THE BIA WAS DESIGNED TO BRING MORE INDIANS INTO POSITIONS OF
RESPONSIBILITY AND, IN THAT REGARD, APPEARS TO BE A LOGICAL EXTENSION
OF THE CONGRESSIONAL INTENT.  SEE FREEMEN V. MORTON, -- U.S. APP. D.C.
-, 499 F.2D 494 (1974), AND N. 5, SUPRA.

        III 

IT IS AGAINST THIS BACKGROUND THAT WE ENCOUNTER THE FIRST ISSUE IN
THE PRESENT CASE:  WHETHER THE INDIAN PREFERENCE WAS REPEALED BY THE
EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972.  TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, 78 STAT. 253, WAS THE FIRST MAJOR PIECE OF FEDERAL
LEGISLATION PROHIBITING DISCRIMINATION IN PRIVATE EMPLOYMENT ON THE
BASIS OF "RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN."  42 U.S.C.
2000E - 2(A).  SIGNIFICANTLY, 701 (B) AND 703(I) OF THE ACT EXPLICITLY
EXEMPTED FROM ITS COVERAGE THE PREFERENTIAL EMPLOYMENT OF INDIANS BY
INDIAN TRIBES OR BY INDUSTRIES LOCATED ON OR NEAR INDIAN RESERVATIONS. 
42 U.S.C. 2000E (B) AND 2000E - 2 (I).  /19/  THIS EXEMPTION REVEALS A
CLEAR CONGRESSIONAL RECOGNITION, WITHIN THE FRAMEWORK OF TITLE VII, OF
THE UNIQUE LEGAL STATUS OF TRIBAL AND RESERVATION-BASED ACTIVITIES. 
THE SENATE SPONSOR, SENATOR HUMPHREY, STATED ON THE FLOOR BY WAY OF
EXPLANATION: 

"THIS EXEMPTION IS CONSISTENT WITH THE FEDERAL GOVERNMENT'S POLICY
OF ENCOURAGING INDIAN EMPLOYMENT AND WITH THE SPECIAL LEGAL POSITION OF
INDIANS."  110 CONG. REC. 12723 (1964).  /20/ 

THE 1964 ACT DID NOT SPECIFICALLY OUTLAW EMPLOYMENT DISCRIMINATION
BY THE FEDERAL GOVERNMENT.  /21/  YET THE MECHANISM FOR ENFORCING
LONGSTANDING EXECUTIVE ORDERS FORBIDDING GOVERNMENT DISCRIMINATION HAD
PROVED INEFFECTIVE FOR THE MOST PART.  /220 IN ORDER TO REMEDY THIS,
CONGRESS, BY THE 1972 ACT, AMENDED THE 1964 ACT AND PROSCRIBED
DISCRIMINATION IN MOST AREAS OF FEDERAL EMPLOYMENT.  SEE N. 6, SUPRA.
IN GENERAL, IT MAY BE SAID THAT THE SUBSTANTIVE ANTI-DISCRIMINATION LAW
EMBRACED IN TITLE VII WAS CARRIED OVER AND APPLIED TO THE FEDERAL
GOVERNMENT.  AS STATED IN THE HOUSE REPORT, 

     "TO CORRECT THIS ENTRENCHED DISCRIMINATION IN THE FEDERAL

  SERVICE, IT IS NECESSARY TO INSURE THE EFFECTIVE APPLICATION OF

  UNIFORM, FAIR AND STRONGLY ENFORCED POLICIES.  THE PRESENT LAW

  AND THE PROPOSED STATUTE DO NOT PERMIT INDUSTRY AND LABOR

  ORGANIZATIONS TO BE THE JUDGES OF THEIR OWN CONDUCT IN THE AREA

  OF EMPLOYMENT DISCRIMINATION.  THERE IS NO REASON WHY GOVERNMENT

  AGENCIES SHOULD NOT BE TREATED SIMILARLY.  . . ."  H.R. REP. NO.

  92 - 238, ON H.R. 1746, PP. 24 - 25 (1971). 

NOWHERE IN THE LEGISLATIVE HISTORY OF TE 1972 ACT, HOWEVER, IS THERE
ANY MENTION OF INDIAN PREFERENCE. 

APPELLEES ASSERT, AND THE DISTRICT COURT HELD, THAT SINCE THE 1972
ACT PROSCRIBED RACIAL DISCRIMINATION IN GOVERNMENT EMPLOYMENT, THE ACT
NECESSARILY, ALBEIT SUB SILENTIO, REPEALED THE PROVISION OF THE 1934
ACT, THAT CALLED FOR THE PREFERENCE IN THE BIA OF ONE RACIAL GROUP,
INDIANS, OVER NON-INDIANS: 

     "WHEN A CONFLICT SUCH AS IN THIS CASE, IS PRESENT, THE MOST

  RECENT LAW OR ACT SHOULD APPLY AND THE CONFLICTING PREFERENCES

  PASSED SOME 39 YEARS EARLIER SHOULD BE IMPLIEDLY REPEALED." 

  BRIEF FOR APPELLEES 7. 

WE DISAGREE.  FOR SEVERAL REASONS WE CONCLUDE THAT CONGRESS DID NOT
INTEND TO REPEAL THE INDIAN PREFERENCE AND THAT THE DISTRICT COURT
ERRED IN HOLDING THAT IT WAS REPEALED. 

FIRST:  THERE ARE THE ABOVE-MENTIONED AFFIRMATIVE PROVISIONS IN THE
1964 ACT EXCLUDING COVERAGE OF TRIBAL EMPLOYMENT AND OF PREFERENTIAL
TREATMENT BY A BUSINESS OR ENTERPRISE ON OR NEAR A RESERVATION.  42
U.S.C. 2000EB) AND 2000E - 2(I).  SEE N. 19, SUPRA.  THESE 1964
EXEMPTIONS AS TO PRIVATE EMPLOYMENT INDICATE CONGRESS' RECOGNITION OF
THE LONGSTANDING FEDERAL POLICY OF PROVIDING A UNIQUE LEGAL STATUS TO
INDIANS IN MATTERS CONCERNING TRIBAL OR "ON OR NEAR" RESERVATION
EMPLOYMENT.  THE EXEMPTIONS REVEAL A CLEAR CONGRESSIONAL SENTIMENT THAT
AN INDIAN PREFERENCE IN THE NARROW CONTEXT OF TRIBAL OR RESERVATION
RELATED EMPLOYMENT DID NOT CONSTITUTE RACIAL DISCRIMINATION OF THE TYPE
OTHERWISE PROSCRIBED.  IN EXTENDING THE GENERAL ANTI-DISCRIMINATION
MACHINERY TO FEDERAL EMPLOYMENT IN 1972, CONGRESS IN NO WAY MODIFIED
THESE PRIVATE EMPLOYMENT PREFERENCES BUILT INTO THE 1964 ACT, AND THEY
ARE STILL IN EFFECT.  IT WOULD BE ANOMALOUS TO CONCLUDE THAT CONGRESS
INTENDED TO ELIMINATE THE LONGSTANDING STATUTORY PREFERENCES IN BIA
EMPLOYMENT, AS BEING RACIALLY DISCRIMINATORY, AT THE VERY SAME TIME IT
WAS REAFFIRMING THE RIGHT OF TRIBAL AND RESERVATION-RELATED PRIVATE
EMPLOYERS TO PROVIDE INDIAN PREFERENCE.  APPELLEES' ASSERTION THAT
CONGRESS IMPLICITLY REPEALED THE PREFERENCE AS RACIALLY DISCRIMINATORY,
WHILE RETAINING THE 1964 PREFERENCES, ATTRIBUTES TO CONGRESS
IRRATIONALITY AND ARBITRARINESS, AN ATTRIBUTION WE DO NOT SHARE. 
SECOND:  THREE MONTHS AFTER CONGRESS PASSED THE 1972 AMENDMENTS, IT
ENACTED TWO NEW INDIAN PREFERENCE LAWS.  THESE WERE PART OF THE
EDUCATION AMENDMENTS OF 1972, 86 STAT. 235, 20 U.S.C. 887C (A) AND (D),
AND 1119A (1970 ED., SUPP. II).  THE NEW LAWS EXPLICITLY REQUIRE THAT
INDIANS BE GIVEN PREFERENCE IN GOVERNMENT PROGRAMS FOR TRAINING
TEACHERS OF INDIAN CHILDREN.  IT IS IMPROBABLE, TO SAY THE LEAST, THAT
THE SAME CONGRESS WHICH AFFIRMATIVELY APPROVED AND ENACTED THESE
ADDITIONAL AND SIMILAR INDIAN PREFERENCES WAS, AT THE SAME TIME,
CONDEMNING THE BIA PREFERENCE AS RACIALLY DISCRIMINATORY.  IN THE TOTAL
ABSENCE OF ANY MANIFESTATION OF SUPPORTIVE INTENT, WE ARE LOATHE TO
IMPLY THIS IMPROBABLE RESULT. 

THIRD:  INDIAN PREFERENCES, FOR MANY YEARS, HAVE BEEN TREATED AS
EXCEPTIONS TO EXECUTIVE ORDERS FORBIDDING GOVERNMENT EMPLOYMENT
DISCRIMINATION.  /23/  THE 1972 EXTENSION OF THE CIVIL RIGHTS ACT TO
GOVERNMENT EMPLOYMENT IS IN LARGE PART MERELY A CODIFICATION OF PRIOR
ANTI-DISCRIMINATION EXECUTIVE ORDERS THAT HAD PROVED INEFFECTIVE
BECAUSE OF INADEQUATE ENFORCEMENT MACHINERY.  THERE CERTAINLY WAS NO
INDICATION THAT THE SUBSTANTIVE PROSCRIPTION AGAINST DISCRIMINATION WAS
INTENDED TO BE ANY BROADER THAN THAT WHICH PREVIOUSLY EXISTED.  BY
CODIFYING THE EXISTING ANTI-DISCRIMINATION PROVISIONS, AND BY PROVIDING
ENFORCEMENT MACHINERY FOR THEM, THERE IS NO REASON TO PRESUME THAT
CONGRESS AFFIRMATIVELY INTENDED TO ERASE THE PREFERENCES THAT
PREVIOUSLY HAD CO-EXISTED WITH BROAD ANTI-DISCRIMINATION PROVISIONS IN
EXECUTIVE ORDERS. 

FOURTH:  APPELLEES ENCOUNTER HEAD-ON THE "CARDINAL RULE . . . THAT
REPEALS BY IMPLICATION ARE NOT FAVORED."  POSADAS V. NATIONAL CITY
BANK, 296 U.S. 497, 503 (1936); WOOD V. UNITED STATES, 16 PET. 342 -
343, 363 (1842); UNIVERSAL INTERPRETIVE SHUTTLE CORP. V. WASHINGTON
METROPOLITAN AREA TRANSIT COMM'N, 393 U.S. 186, 193 (1968).  THEY AND
THE DISTRICT COURT READ THE CONGRESSIONAL SILENCE AS EFFECTUATING A
REPEAL BY IMPLICATION.  THERE IS NOTHING IN THE LEGISLATIVE HISTORY,
HOWEVER, THAT INDICATES AFFIRMATIVELY ANY CONGRESSIONAL INTENT TO
REPEAL THE 1934 PREFERENCE.  INDEED, AS EXPLAINED ABOVE, THERE IS AMPLE
INDEPENDENT EVIDENCE THAT THE LEGISLATIVE INTENT WAS TO THE CONTRARY. 

THIS IS A PROTOTYPICAL CASE WHERE AN ADJUDICATION OF REPEAL BY
IMPLICATION IS NOT APPROPRIATE.  THE PREFERENCE IS A LONGSTANDING,
IMPORTANT COMPONENT OF THE GOVERNMENT'S INDIAN PROGRAM.  THE ANTI
DISCRIMINATION PROVISION, AIMED AT ALLEVIATING MINORITY DISCRIMINATION
IN EMPLOYMENT, OBVIOUSLY IS DESIGNED TO DEAL WITH AN ENTIRELY DIFFERENT
AND, INDEED, OPPOSITE PROBLEM.  ANY PERCEIVED CONFLICT IS THUS MORE
APPARENT THAN REAL. 

IN THE ABSENCE OF SOME AFFIRMATIVE SHOWING OF AN INTENTION TO
REPEAL, THE ONLY PERMISSIBLE JUSTIFICATION FOR A REPEAL BY IMPLICATION
IS WHEN THE EARLIER AND LATER STATUTES ARE IRRECONCILABLE.  GEORGIA V.
PENNSYLVANIA R. CO., 324 U.S. 439, 456 - 457 (1945).  CLEARLY, THIS IS
NOT THE CASE HERE.  A PROVISION AIMED AT FURTHERING INDIAN SELF
GOVERNMENT BY ACCORDING AN EMPLOYMENT PREFERENCE WITHIN THE BIA FOR
QUALIFIED MEMBERS OF THE GOVERNED GROUP CAN READILY CO-EXIST WITH A
GENERAL RULE PROHIBITING EMPLOYMENT DISCRIMINATION ON THE BASIS OF
RACE.  ANY OTHER CONCLUSION CAN BE REACHED ONLY BY FORMALISTIC
REASONING THAT IGNORES BOTH THE HISTORY AND PURPOSES OF THE PREFERENCE
AND THE UNIQUE LEGAL RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND
TRIBAL INDIANS. 

FURTHERMORE, THE INDIAN PREFERENCE STATUTE IS A SPECIFIC PROVISION
APPLYING TO A VERY SPECIFIC SITUATION.  THE 1972 ACT, ON THE OTHER
HAND, IS OF GENERAL APPLICATION.  WHERE THERE IS NO CLEAR INTENTION
OTHERWISE, A SPECIFIC STATUTE WILL NOT BE CONTROLLED OR NULLIFIED BY A
GENERAL ONE, REGARDLESS OF THE PRIORITY OF ENACTMENT.  SEE, E.G.,
BULOVA WATCH CO. V. UNITED STATES, 365 U.S. 753, 758 (1961); RODGERS V.
UNITED STATES, 185 U.S. 83, 87 - 89 (1902). 

THE COURTS ARE NOT AT LIBERTY TO PICK AND CHOOSE AMONG CONGRESSIONAL
ENACTMENTS, AND WHEN TWO STATUTES ARE CAPABLE OF CO-EXISTENCE, IT IS
THE DUTY OF THE COURTS, ABSENT A CLEARLY EXPRESSED CONGRESSIONAL
INTENTION TO THE CONTRARY, TO REGARD EACH AS EFFECTIVE.  "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.'"  UNITED STATES V. BORDEN CO., 308 U.S. 188, 198
(1939).  IN LIGHT OF THE FACTORS INDICATING NO REPEAL, WE SIMPLY CANNOT
CONCLUDE THAT CONGRESS CONSCIOUSLY ABANDONED ITS POLICY OF FURTHERING
INDIAN SELF-GOVERNMENT WHEN IT PASSED THE 1972 AMENDMENTS. 

WE THEREFORE HOLD THAT THE DISTRICT COURT ERRED IN RULING THAT THE
INDIAN PREFERENCE WAS REPEALED BY THE 1972 ACT. 

        IV 

WE STILL MUST DECIDE WHETHER, AS THE APPELLEES CONTEND, THE
PREFERENCE CONSTITUTES INVIDIOUS RACIAL DISCRIMINATION IN VIOLATION OF
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  BOLLING V. SHARPE, 347
U.S. 497 (1954).  THE DISTRICT COURT, WHILE PRETERMITTING THIS ISSUE,
SAID, "(WE COULD WELL HOLD THAT THE STATUTE MUST FAIL ON CONSTITUTIONAL
GROUNDS."  359 F. SUPP., AT 591. 

RESOLUTION OF THE INSTANT ISSUE TURNS ON THE UNIQUE LEGAL STATUS OF
INDIAN TRIBES UNDER FEDERAL LAW AND UPON THE PLENARY POWER OF CONGRESS,
BASED ON A HISTORY OF TREATIES AND THE ASSUMPTION OF A "GUARDIAN-WARD"
STATUS, TO LEGISLATE ON BEHALF OF FEDERALLY RECOGNIZED INDIAN TRIBES. 
THE PLENARY POWER OF CONGRESS TO DEAL WITH THE SPECIAL PROBLEMS OF
INDIANS IS DRAWN BOTH EXPLICITLY AND IMPLICITLY FROM THE CONSTITUTION
ITSELF.  ARTICLE I, 8, CL. 3, PROVIDES CONGRESS WITH THE POSER TO
"REGULATE COMMERCE . . . WITH THE INDIAN TRIBES," AND THUS, TO THIS
EXTENT, SINGLES INDIANS OUT AS A PROPER SUBJECT FOR SEPARATE
LEGISLATION.  ARTICLE II, 2, CL. 2, GIVES THE PRESIDENT THE POWER, BY
AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES.  THIS
HAS OFTEN BEEN THE SOURCE OF THE GOVERNMENT'S POWER TO DEAL WITH THE
INDIAN TRIBES.  THE COURT HAS DESCRIBED THE ORIGIN AND NATURE OF THE
SPECIAL RELATIONSHIP: 

"IN THE EXERCISE OF THE WAR AND TREATY POWERS, THE UNITED STATES
OVERCAME THE INDIANS AND TOOK POSSESSION OF THEIR LANDS, SOMETIMES BY
FORCE, LEAVING THEM AN UNEDUCATED, HELPLESS AND DEPENDENT PEOPLE,
NEEDING PROTECTION AGAINST THE SELFISHNESS OF OTHERS AND THEIR OWN
IMPROVIDENCE.  OF NECESSITY, THE UNITED STATES ASSUMED THE DUTY OF
FURNISHING THAT PROTECTION, AND WITH IT THE AUTHORITY TO DO ALL THAT
WAS REQUIRED TO PERFORM THAT OBLIGATION AND TO PREPARE THE INDIANS TO
TAKE THEIR PLACE AS INDEPENDENT, QUALIFIED MEMBERS OF THE MODERN BODY
POLITIC.  . . ."  BOARD OF COUNTY COMM'RS V. SEBER, 318 U.S. 705, 715
(1943).  SEE ALSO UNITED STATES V. KAGAMA, 118 U.S. 375, 383 - 384
(1886). 

LITERALLY EVERY PIECE OF LEGISLATION DEALING WITH INDIAN TRIBES AND
RESERVATIONS, AND CERTAINLY ALL LEGISLATION DEALING WITH THE BIA,
SINGLE OUT FOR SPECIAL TREATMENT A CONSTITUENCY OF TRIBAL INDIANS
LIVING ON OR NEAR RESERVATIONS.  IF THESE LAWS, DERIVED FROM HISTORICAL
RELATIONSHIPS AND EXPLICITLY DESIGNED TO HELP ONLY INDIANS, WERE DEEMED
INVIDIOUS RACIAL DISCRIMINATION, AN ENTIRE TITLE OF THE U.S.C. (25
U.S.C.)  WOULD BE EFFECTIVELY ERASED AND THE SOLEMN COMMITMENT OF THE
GOVERNMENT TOWARD THE INDIANS WOULD BE JEOPARDIZED.  SEE SIMMONS V.
EAGLE SEELATSEE, 244 F. SUPP. 808, 814 N. 13 (ED WASH. 1965), AFF'D,
384 U.S. 209 (1966). 

IT IS IN THIS HISTORICAL AND LEGAL CONTEXT THAT THE CONSTITUTIONAL
VALIDITY OF THE INDIAN PREFERENCE IS TO BE DETERMINED.  AS DISCUSSED
ABOVE, CONGRESS IN 1934 DETERMINED THAT PROPER FULFILLMENT OF ITS TRUST
REQUIRED TURNING OVER TO THE INDIANS A GREATER CONTROL OF THEIR OWN
DESTINIES.  THE OVERLY PATERNALISTIC APPROACH OF PRIOR YEARS HAD PROVED
BOTH EXPLOITATIVE AND DESTRUCTIVE OF INDIAN INTERESTS.  CONGRESS WAS
UNITED IN THE BELIEF THAT INSTITUTIONAL CHANGES WERE REQUIRED.  AN
IMPORTANT PART OF THE INDIAN REORGANIZATION ACT WAS THE PREFERENCE
PROVISION HERE AT ISSUE. 

CONTRARY TO THE CHARACTERIZATION MADE BY APPELLEES, THIS PREFERENCE
DOES NOT CONSTITUTE "RACIAL DISCRIMINATION."  INDEED, IT IS NOT EVEN A
"RACIAL" PREFERENCE.  /24/  RATHER, IT IS AN EMPLOYMENT CRITERION
REASONABLY DESIGNED TO FURTHER THE CAUSE OF INDIAN SELF-GOVERNMENT AND
TO MAKE THE BIA MORE RESPONSIVE TO THE NEEDS OF ITS CONSTITUENT
GROUPS.  IT IS DIRECTED TO PARTICIPATION BY THE GOVERNED IN THE
GOVERNING AGENCY.  THE PREFERENCE IS SIMILAR IN KIND TO THE
CONSTITUTIONAL REQUIREMENT THAT A UNITED STATES SENATOR, WHEN ELECTED,
BE "AN INHABITANT OF THAT STATE FOR WHICH HE SHALL BE CHOSEN,"  ART. I,
3, CL. 3, OR THAT A MEMBER OF A CITY COUNCIL RESIDE WITHIN THE CITY
GOVERNED BY THE COUNCIL.  CONGRESS HAS SOUGHT ONLY TO ENABLE THE BIA TO
DRAW MORE HEAVILY FROM AMONG THE CONSTITUENT GROUP IN STAFFING ITS
PROJECTS, ALL OF WHICH, EITHER DIRECTLY OR INDIRECTLY, AFFECT THE LIVES
OF TRIBAL INDIANS.  THE PREFERENCE, AS APPLIED, IS GRANTED TO INDIANS
NOT AS A DISCRETE RACIAL GROUP, BUT, RATHER, AS MEMBERS OF QUASI
SOVEREIGN TRIBAL ENTITIES WHOSE LIVES AND ACTIVITIES ARE GOVERNED BY
THE BIA IN A UNIQUE FASHION.  SEE N. 24, SUPRA.  IN THE SENSE THAT
THERE IS NO OTHER GROUP OF PEOPLE FAVORED IN THIS MANNER, THE LEGAL
STATUS OF THE BIA IS TRULY SUI GENERIS.  /25/  FURTHERMORE, THE
PREFERENCE APPLIES ONLY TO EMPLOYMENT IN THE INDIAN SERVICE.  THE
PREFERENCE DOES NOT COVER ANY OTHER GOVERNMENT AGENCY OR ACTIVITY, AND
WE NEED NOT CONSIDER THE OBVIOUSLY MORE DIFFICULT QUESTION THAT WOULD
BE PRESENTED BY A BLANKET EXEMPTION FOR INDIANS FROM ALL CIVIL SERVICE
EXAMINATIONS.  HERE, THE PREFERENCE IS REASONABLY AND DIRECTLY RELATED
TO A LEGITIMATE, NONRACIALLY BASED GOAL.  THIS IS THE PRINCIPAL
CHARACTERISTIC THAT GENERALLY IS ABSENT FROM PROSCRIBED FORMS OF RACIAL
DISCRIMINATION. 

ON NUMEROUS OCCASIONS THIS COURT SPECIFICALLY HAS UPHELD LEGISLATION
THAT SINGLES OUT INDIANS FOR PARTICULAR AND SPECIAL TREATMENT.  SEE,
E.G., BOARD OF COUNTY COMM'RS V. SEBER, 318 U.S. 705 (1943) (FEDERALLY
GRANTED TAX IMMUNITY); MCCLANAHAN V. ARIZONA STATE TAX COMM'N, 411 U.S.
164 (1973) (SAME); SIMMONS V. EAGLE SEELATSEE, 384 U.S. 209 (1966),
AFFIRMING, 244 F. SUPP. 808 (ED WASH. 1965) (STATUTORY DEFINITION OF
TRIBAL MEMBERSHIP, WITH RESULTING INTEREST IN TRUST ESTATE); WILLIAMS
V. LEE, 358 U.S. 217 (1959) (TRIBAL COURTS AND THEIR JURISDICTION OVER
RESERVATION AFFAIRS).  CF. MORTON V. RUIZ, 415 U.S. 199 (1974) (FEDERAL
WELFARE BENEFITS FOR INDIANS "ON OR NEAR" RESERVATIONS).  THIS UNIQUE
LEGAL STATUS IS OF LONG STANDING, SE CHEROKEE NATION V. GEORGIA, 5 PET.
1 (1831); WORCESTER V. GEORGIA, 6 PET. 515 (1832), AND ITS SOURCES ARE
DIVERSE.  SEE GENERALLY U.S. DEPT. OF INTERIOR, FEDERAL INDIAN LAW
(1958); COMMENT, THE INDIAN BATTLE FOR SELF-DETERMINATION, 58 CALIF. L.
REV. 445 (1970).  AS LONG AS THE SPECIAL TREATMENT CAN BE TIED
RATIONALLY TO THE FULFILLMENT OF CONGRESS' UNIQUE OBLIGATION TOWARD THE
INDIANS, SUCH LEGISLATIVE JUDGMENTS WILL NOT BE DISTURBED.  HERE, WHERE
THE PREFERENCE IS REASONABLE AND RATIONALLY DESIGNED TO FURTHER INDIAN
SELF-GOVERNMENT, WE CANNOT SAY THAT CONGRESS'  CLASSIFICATION VIOLATES
DUE PROCESS.  THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE
CASES ARE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  THE INDIAN HEALTH SERVICE WAS TRANSFERRED IN 1954 FROM THE
DEPARTMENT OF THE INTERIOR TO THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE.  ACT OF AUG. 5, 1954, 1, 68 STAT. 674, 42 U.S.C. 2001. 
PRESUMABLY, DESPITE THIS TRANSFER, THE REFERENCE IN 12 TO THE "INDIAN
OFFICE" HAS CONTINUING APPLICATION TO THE INDIAN HEALTH SERVICE.  SEE 5
CFR 213.3116 (B) (8). 

/2/  THERE ARE EARLIER AND MORE NARROWLY DRAWN INDIAN PREFERENCE
STATUTES.  25 U.S.C. 44, 45, 46, 47, AND 274.  FOR ALL PRACTICAL
PURPOSES, THESE WERE REPLACED BY THE BROADER PREFERENCE OF 12. 
ALTHOUGH NOT DIRECTLY CHALLENGED IN THIS LITIGATION, THESE STATUTES,
UNDER THE DISTRICT COURT'S DECISION, CLEARLY WOULD BE INVALIDATED. 

/3/  THE DIRECTIVE STATED:  "THE SECRETARY OF THE INTERIOR ANNOUNCED
TODAY (JUNE 26, 1972) HE HAS APPROVED THE BUREAU'S POLICY TO EXTEND
INDIAN PREFERENCE TO TRAINING AND TO FILLING VACANCIES BY ORIGINAL
APPOINTMENT, REINSTATEMENT AND PROMOTIONS.  THE NEW POLICY WAS
DISCUSSED WITH THE NATIONAL PRESIDENT OF THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES UNDER NATIONAL CONSULTATION RIGHTS NFFE HAS WITH THE
DEPARTMENT.  SECRETARY MORTON AND I JOINTLY STRESS THAT CAREFUL
ATTENTION MUST BE GIVEN TO PROTECTING THE RIGHTS OF NON-INDIAN
EMPLOYEES.  THE NEW POLICY PROVIDES AS FOLLOWS:  WHERE TWO OR MORE
CANDIDATES WHO MEET THE ESTABLISHED QUALIFICATION REQUIREMENTS ARE
AVAILABLE FOR FILLING A VACANCY.  IF ONE OF THEM IS AN INDIAN, HE SHALL
BE GIVEN PREFERENCE IN FILLING THE VACANCY.  THIS NEW POLICY IS
EFFECTIVE IMMEDIATELY, AND IS INCORPORATED INTO ALL EXISTING PROGRAMS
SUCH AS THE PROMOTION PROGRAM.  REVISED MANUAL RELEASES WILL BE ISSUED
PROMPTLY FOR REVIEW AND COMMENT.  YOU SHOULD TAKE IMMEDIATE STEPS TO
NOTIFY ALL EMPLOYEES AND RECOGNIZED UNIONS OF THIS POLICY."  APP. 52 -
53. 

/4/  THE APPELLEES STATE THAT NONE OF THEM IS EMPLOYED ON OR NEAR AN
INDIAN RESERVATION.  BRIEF FOR APPELLEES 8.  THE DISTRICT COURT
DESCRIBED THE APPELLEES AS "TEACHERS . . . OR PROGRAMMERS, OR IN
COMPUTER WORK."  359 F.SUPP.  585, 587 (NM 1973). 

/5/  THE SPECIFIC QUESTION WHETHER 12 OF THE 1934 ACT AUTHORIZES A
PREFERENCE IN PROMOTION AS WELL AS IN INITIAL HIRING WAS NOT DECIDED BY
THE DISTRICT COURT AND IS NOT NOW BEFORE US.  WE EXPRESS NO OPINION ON
THIS ISSUE.  SEE FREEMEN V. MORTON, -- U.S. APP. D.C. --, 499 F.2D 494
(1974).  SEE ALSO MESCALERO APACHE TRIBE V. HICKEL, 432 F.2D 956 (CA10
1970), CERT. DENIED, 401 U.S. 981 (1971) (PREFERENCE HELD INAPPLICABLE
TO REDUCTION IN FORCE).     /6/  SECTION 2000E - 16(A) READS: 

"ALL PERSONNEL ACTIONS AFFECTING EMPLOYEES OR APPLICANTS FOR
EMPLOYMENT (EXCEPT WITH REGARD TO ALIENS EMPLOYED OUTSIDE THE LIMITS OF
THE UNITED STATES) IN MILITARY DEPARTMENTS AS DIFINED IN SECTION 102 OF
TITLE 5, IN EXECUTIVE AGENCIES (OTHER THAN THE GENERAL ACCOUNTING
OFFICE) AS DEFINED IN SECTION 105 OF TITLE 5 (INCLUDING EMPLOYEES AND
APPLICANTS FOR EMPLOYMENT WHO ARE PAID FROM NONAPPROPRIATED FUNDS), IN
THE UNITED STATES POSTAL SERVICE AND THE POSTAL RATE COMMISSION, IN
THOSE UNITS OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA HAVING
POSITIONS IN THE COMPETITIVE SERVICE, AND IN THOSE UNITS OF THE
LEGISLATIVE AND JUDICIAL BRANCHES OF THE FEDERAL GOVERNMENT HAVING
POSITIONS IN THE COMPETITIVE SERVICE, AND IN THE LIBRARY OF CONGRESS
SHALL BE MADE FREE FROM ANY DISCRIMINATION BASED ON RACE, COLOR,
RELIGION, SEX, OR NATIONAL ORIGIN." 

/7/  ACT OF JUNE 30, 1834, 9, 4 STAT. 737, 25 U.S.C. 45:  "(IN ALL
CASES OF THE APPOINTMENTS OF INTERPRETERS OR OTHER PERSONS EMPLOYED FOR
THE BENEFIT OF THE INDIANS, A PREFERENCE SHALL BE GIVEN TO PERSONS OF
INDIAN DESCENT, IF SUCH CAN BE FOUND, WHO ARE PROPERLY QUALIFIED FOR
THE EXECUTION OF THE DUTIES." 

/8/  ACT OF MAY 17, 1882, 6, 22 STAT. 88, AND ACT OF JULY 4, 1884,
6, 23 STAT. 97, 25 U.S.C. 46 (EMPLOYMENT OF CLERICAL, MECHANICAL AND
OTHER HELP ON RESERVATIONS AND ABOUT AGENCIES); ACT OF AUG. 15, 1894,
10, 28 STAT. 313, 25 U.S.C. 44 (EMPLOYMENT OF HERDERS, TEAMSTERS, AND
LABORERS, "AND WHERE PRACTICABLE IN ALL OTHER EMPLOYMENTS"  IN THE
INDIAN SERVICE); ACT OF JUNE 7, 1897, 1, 30 STAT. 83, 25 U.S.C. 274
(EMPLOYMENT AS MATRONS, FARMERS, AND INDUSTRIAL TEACHERS IN INDIAN
SCHOOLS); ACT OF JUNE 25, 1910, 23, 36 STAT. 861, 25 U.S.C. 47 (GENERAL
PREFERENCE AS TO INDIAN LABOR AND PRODUCTS OF INDIAN INDUSTRY). 

/9/  SENATOR WHEELER, COSPONSOR OF THE 1934 ACT, EXPLAINED THE NEED
FOR A PREFERENCE AS FOLLOWS:  "WE ARE SETTING UP IN THE UNITED STATES A
CIVIL SERVICE RULE WHICH PREVENTS INDIANS FROM MANAGING THEIR OWN
PROPERTY.  IT IS AN ENTIRELY DIFFERENT SERVICE FROM ANYTHING ELSE IN
THE UNITED STATES, BECAUSE THESE INDIANS OWN THIS PROPERTY.  IT BELONGS
TO THEM.  WHAT THE POLICY OF THIS GOVERNMENT IS AND WHAT IT SHOULD BE
IS TO TEACH THESE INDIANS TO MANAGE THEIR OWN BUSINESS AND CONTROL
THEIR OWN FUNDS AND TO ADMINISTER THEIR OWN PROPERTY, AND THE CIVIL
SERVICE HAS WORKED VERY POORLY SO FAR AS THE INDIAN SERVICE IS
CONCERNED . . . ."  HEARINGS ON S. 2755 AND S. 3645, BEFORE THE SENATE
COMMITTEE ON INDIAN AFFAIRS, 73D CONG., 2D SESS., PT. 2, P. 256
(1934). 

/10/  A LETTER, CONTAINED IN THE HOUSE REPORT TO THE 1934 ACT, FROM
PRESIDENT F. D. ROOSEVELT TO CONGRESSMAN HOWARD STATES: 

"WE CAN AND SHOULD, WITHOUT FURTHER DELAY, EXTEND TO THE INDIAN THE
FUNDAMENTAL RIGHTS OF POLITICAL LIBERTY AND LOCAL SELF-GOVERNMENT AND
THE OPPORTUNITIES OF EDUCATION AND ECONOMIC ASSISTANCE THAT THEY
REQUIRE IN ORDER TO ATTAIN A WHOLESOME AMERICAN LIFE.  THIS IS BUT THE
OBLIGATION OF HONOR OF A POWERFUL NATION TOWARD A PEOPLE LIVING AMONG
US AND DEPENDENT UPON OUR PROTECTION."  H.R. REP. NO. 1804, 73D CONG.,
2D SESS., 8 (1934). 

/11/  "IF THE INDIANS ARE EXPOSED TO ANY DANGER, THERE IS NONE
GREATER THAN THE RESIDENCE AMONG THEM OF UNPRINCIPLED WHITE MEN."  H.R.
REP. NO. 474, 23D CONG., 1ST SESS., 98 (1834) (LETTER DATED FEB. 10,
1834, FROM INDIAN COMMISSIONERS TO THE SECRETARY OF WAR). 

/12/  AS EXPLAINED BY JOHN COLLIER, COMMISSIONER OF INDIAN AFFAIRS:
"(THIS BILL IS DESIGNED NOT TO PREVENT THE ABSORPTION OF INDIANS IN
WHITE COMMUNITIES, BUT RATHER TO PROVIDE FOR THOSE INDIANS UNWILLING OR
UNABLE TO COMPETE IN THE WHITE WORLD SOME MEASURES OF SELF-GOVERNMENT
IN THEIR OWN AFFAIRS."  HEARING ON S. 2755 BEFORE THE SENATE COMMITTEE
ON INDIAN AFFAIRS, 73D CONG., 2D SESS., PT. 1, P. 26 (1934). 

/13/  HEARINGS ON H.R. 7902, READJUSTMENT OF INDIAN AFFAIRS, BEFORE
THE HOUSE COMMITTEE ON INDIAN AFFAIRS, 73D CONG., 2D SESS., 1 - 7
(1934) (HEREAFTER HOUSE HEARINGS).  SEE ALSO MESCALERO APACHE TRIBE V.
JONES, 411 U.S. 145, 152 - 153, N. 9 (1973). 

/14/  HOUSE HEARINGS 491 - 497. 

/15/  "(SECTION 12) WAS INTENDED TO INTEGRATE THE INDIAN INTO THE
GOVERNMENT SERVICE CONNECTED WITH TH ADMINISTRATION OF HIS AFFAIRS. 
CONGRESS WAS ANXIOUS TO PROMOTE ECONOMIC AND POLITICAL SELF
DETERMINATION FOR THE INDIAN."  MESCALERO APACHE TRIBE V. HICKEL, 432
F.2D, AT 960 (FOOTNOTE OMITTED). 

/16/  "THE BILL ADMITS QUALIFIED INDIANS TO THE POSITIONS IN THEIR
OWN SERVICE. 

"THIRTY-FOUR YEARS AGO, IN 1900, THE NUMBER OF INDIANS HOLDING
REGULAR POSITIONS IN THE INDIAN SERVICE, IN PROPORTION TO THE TOTAL OF
POSITIONS, WAS GREATER THAN IT IS TODAY. 

"THE REASON PRIMARILY IS FOUND IN THE APPLICATION OF THE GENERALIZED
CIVIL SRVICE TO THE INDIAN SERVICE, AND THE CONSEQUENT EXCLUSION OF
INDIANS FROM THEIR OWN JOBS."  HOUSE HEARINGS 19 (MEMORANDUM DATED FEB.
19, 1934, SUBMITTED BY COMMISSIONER COLLIER TO THE SENATE AND HOUSE
COMMITTEES ON INDIAN AFFAIRS). 

/17/  REP. CARTER, AN OPPONENT OF THE BILL, PLACED IN THE
CONGRESSIONAL RECORD THE FOLLOWING OBSERVATION BY COMMISSIONER COLLIER
AT THE COMMITTEE HEARINGS:  "(WE MUST NOT BLIND OURSELVES TO THE FACT
THAT THE EFFECT OF THIS BILL IF WORKED OUT WOULD UNQUESTIONABLY BE TO
REPLACE WHITE EMPLOYEES BY INDIAN EMPLOYEES.  I DO NOT KNOW HOW FAST,
BUT ULTIMATELY IT OUGHT TO GO VERY FAR INDEED."  78 CONG. REC. 11737
(1934). 

/18/  "IT SHOULD BE POSSIBLE FOR INDIANS TO ENTER THE SERVICE OF
THEIR OWN PEOPLE WITHOUT RUNNING THE GAUNTLET OF COMPETITION WITH
WHITES FOR THESE POSITIONS.  INDIAN PROGRESS AND AMBITION WILL BE
ENORMOUSLY STRENGTHENED AS SOON AS WE ADOPT THE PRINCIPLE THAT THE
INDIAN SERVICE SHALL GRADUALLY BECOME, IN FACT AS WELL AS IN NAME, AN
INDIAN SERVICE PREDOMINANTLY IN THE HANDS OF EDUCATED AND COMPETENT
INDIANS."  ID., AT 11731 (REMARDS OF REP. HOWARD). 

/19/  SECTION 2000E (B) EXCLUDES "AN INDIAN TRIBE" FROM THE ACT'S
DEFINITION OF "EMPLOYER."  SECTION 2000E - 2 (I) STATES: 

"NOTHING CONTAINED IN THIS SUBCHAPTER SHALL APPLY TO ANY BUSINESS OR
ENTERPRISE ON OR NEAR AN INDIAN RESERVATION WITH RESPECT TO ANY
PUBLICLY ANNOUNCED EMPLOYMENT PRACTICE OF SUCH BUSINESS OR ENTERPRISE
UNDER WHICH A PREFERENTIAL TREATMENT IS GIVEN TO ANY INDIVIDUAL BECAUSE
HE IS AN INDIAN LIVING ON OR NEAR A RESERVATION." 

/20/  SENATOR MUNDT SUPPORTED THESE EXEMPTIONS ON THE SENATE FLOOR
BY CLAIMING THAT THEY WOULD ALLOW INDIANS "TO BENEFIT FROM INDIAN
PREFERENCE PROGRAMS NOW IN OPERATION OR LATER TO BE INSTITUTED."  110
CONG. REC. 13702 (1964). 

/21/  THE 1964 ACT, HOWEVER, DID CONTAIN A PROVISO, EXPRESSED IN
SOMEWHAT PRECATORY LANGUAGE: "THAT IT SHALL BE THE POLICY OF THE UNITED
STATES TO INSURE EQUAL EMPLOYMENT OPPORTUNITIES FOR FEDERAL EMPLOYEES
WITHOUT DISCRIMINATION BECAUSE OF RACE, COLOR, RELIGION, SEX OR
NATIONAL ORIGIN."  78 STAT. 254.  THIS STATEMENT OF POLICY WAS RE
ENACTED AS 5 U.S.C. 7151, 80 STAT. 523 (1966), AND THE 1964 ACT'S
PROVISO WAS REPEALED, ID., AT 662. 

/22/  "THIS DISPROPORTIONATE DISTRIBUTION OF MINORITIES AND WOMEN
THROUGHOUT THE FEDERAL BUREAUCRACY AND THEIR EXCLUSION FROM HIGHER
LEVEL POLICY-MAKING AND SUPERVISORY POSITIONS INDICATES THE
GOVERNMENT'S FAILURE TO PURSUE ITS POLICY OF EQUAL OPPORTUNITY. 

"A CRITICAL DEFECT OF THE FEDERAL EQUAL EMPLOYMENT PROGRAM HAS BEEN
THE FAILURE OF THE COMPLAINT PROCESS.  THAT PROCESS HAS IMPEDED RATHER
THAN ADVANCED THE GOAL OF THE ELIMINATION OF DISCRIMINATION IN FEDERAL
EMPLOYMENT.  . . ."  H.R. REP. NO. 92 - 238, ON H.R. 1746, PP. 23 - 24
(1971). 

/23/  SEE, E.G., EXEC. ORDER 7423, JULY 26, 1936, 1 FED. REG. 885 -
886.  WHEN PRESIDENT EISENHOWER ISSUED AN ORDER PROHIBITING
DISCRIMINATION ON THE BASIS OF RACE IN THE CIVIL SERVICE, EXEC. ORDER
10577, NOV. 22, 1954, 19 FED. REG. 7521, 4.2, HE LEFT STANDING EARLIER
EXECUTIVE ORDERS CONTAINING EXCEPTIONS FOR THE INDIAN SERVICE.  ID.,
301.  SEE ALSO 5 CFR 213.3112 (A) (7), WHICH PROVIDES A CIVIL SERVICE
EXEMPTION FOR: 

"ALL POSITIONS IN THE BUREAU OF INDIAN AFFAIRS AND OTHER POSITIONS
IN THE DEPARTMENT OF THE INTERIOR DIRECTLY AND PRIMARILY RELATED TO THE
PROVIDING OF SERVICES TO INDIANS WHEN FILLED BY THE APPOINTMENT OF
INDIANS WHO ARE ONE-FOURTH OR MORE INDIAN BLOOD."  SEE ALSO 5 CFR
213.3116 (B) (8) (INDIAN HEALTH SERVICES). 

/24/  THE PREFERENCE IS NOT DIRECTED TOWARDS A "RACIAL" GROUP
CONSISTING OF "INDIANS"; INSTEAD, IT APPLIES ONLY TO MEMBERS OF
"FEDERALLY RECOGNIZED" TRIBES.  THIS OPERATES TO EXCLUDE MANY
INDIVIDUALS WHO ARE RACIALLY TO BE CLASSIFIED AS "INDIANS."  IN THIS
SENSE, THE PREFERENCE IS POLITICAL RATHER THAN RACIAL IN NATURE.  THE
ELIGIBILITY CRITERIA APPEAR IN 44 BIAM 335, 3.1:  ".1 POLICY--AN INDIAN
HAS PERFERENCE IN APPOINTMENT IN THE BUREAU.  TO BE ELIGIBLE FOR
PREFERENCE IN APPOINTMENT, PROMOTION, AND TRAINING, AN INDIVIDUAL MUST
BE ONE-FOURTH OR MORE DEGREE INDIAN BLOOD AND BE A MEMBER OF A
FEDERALLY-RECOGNIZED TRIBE.  IT IS THE POLICY FOR PROMOTIONAL
CONSIDERATION THAT WHERE TWO OR MORE CANDIDATES WHO MEET THE
ESTABLISHED QUALIFICATION REQUIREMENTS ARE AVAILABLE FOR FILLING A
VACANCY, IF ONE OF THEM IS AN INDIAN, HE SHALL BE GIVEN PREFERENCE IN
FILLING THE VACANCY.  IN ACCORDANCE WITH THE POLICY STATEMENT APPROVED
BY THE SECRETARY, THE COMMISSIONER MAY GRANT EXCEPTIONS TO THIS POLICY
BY APPROVING THE SELECTION AND APPOINTMENT OF NON-INDIANS, WHEN HE
CONSIDERS IT IN THE BEST INTEREST OF THE BUREAU.  "THIS PROGRAM DOES
NOT RESTRICT THE RIGHT OF MANAGEMENT TO FILL POSITIONS BY METHODS OTHER
THAN THROUGH PROMOTION.  POSITIONS MAY BE FILLED BY TRANSFERS,
REASSIGNMENT, REINSTATEMENT, OR INITIAL APPOINTMENT."  APP. 92. 

/23/  SENATOR WHEELER DESCRIBED THE BIA AS "AN ENTIRELY DIFFERENT
SERVICE FROM ANYTHING ELSE IN THE UNITED STATES."  HEARINGS ON S. 2755
AND S. 3645 BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS, 73D CONG.,
2D SESS., PT. 2, P. 256 (1934). 

HARRY R. SACHSE ARGUED THE CAUSE FOR APPELLANTS IN NO. 73 - 362. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY
GENERAL POTTINGER, CARLTON R. STOIBER, AND M. PATRICIA SCHAFFER. 
HARRIS D. SHERMAN ARGUED THE CAUSE FOR APPELLANT IN NO. 73 - 364.  WITH
HIM ON THE BRIEFS WAS STUART J. LAND. 

GENE E. FRANCHINI ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES
IN BOTH CASES. 
..END :









GILMORE V. CITY OF MONTGOMERY, 417 U.S. 556 


       GILMORE ET AL. V. CITY OF MONTGOMERY ALABAMA, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 72 - 1517.  ARGUED JANUARY 15 - 16, 1974--DECIDED JUNE

17, 1974; 473 F.2D 832, REVERSED IN PART, AND REMANDED. 


    PETITIONERS, NEGRO CITIZENS OF MONTGOMERY, ALA., BROUGHT THIS

  CLASS ACTION IN 1958 TO DESEGREGATE THE CITY'S PUBLIC PARKS, AND

  IN 1959 THE DISTRICT COURT ORDERED THE PARKS DESEGREGATED.  THE

  COURT OF APPEALS AFFIRMED, AND ORDERED THE DISTRICT COURT TO

  RETAIN JURISDICTION.  THEREAFTER, HOWEVER, SEGREGATED

  RECREATIONAL PROGRAMS WERE CONTINUED BY THE CITY IN COOPERATION

  WITH THE YMCA, PUBLIC SWIMMING POOLS WERE CLOSED ALLEGEDLY TO

  PREVENT THE MIXING OF RACES, AND RECREATIONAL FACILITIES IN NEGRO

  NEIGHBORHOODS WERE NOT MAINTAINED EQUALLY WITH THOSE IN WHITE

NEIGHBORHOODS.  THE PETITIONERS BY MOTION IN 1970 REOPENED THE

  LITIGATION BASED ON FACTS DEVELOPED IN SMITH V. YMCA, 316 F.

  SUPP. 899 (MD ALA. 1970), IN WHICH RELIEF WAS OBTAINED AGAINST

  THE "COORDINATED EFFORT"  OF THE CITY AND THE YMCA TO PERPETUATE

  THE SEGREGATED PARKS.  THE CLAIMS RAISED BY THE 1970 MOTION WERE

  SETTLED BY AGREEMENT.  IN 1971 THE PETITIONERS FILED THE "MOTION

  FOR SUPPLEMENTAL RELIEF," WHICH FORMS THE BASIS FOR THE PRESENT

  PHASE OF THE LITIGATION, COMPLAINING THAT THE CITY WAS PERMITTING

RACIALLY SEGREGATED SCHOOLS AND OTHER SEGREGATED PRIVATE GROUPS

  AND CLUBS TO USE CITY PARKS AND RECREATIONAL FACILITIES.  THE

  DISTRICT COURT ENJOINED THE CITY AND ITS OFFICIALS FROM

  PERMITTING OR SANCTIONING THE USE OF CITY RECREATIONAL FACILITIES

  BY ANY RACIALLY SEGREGATED PRIVATE SCHOOL OR AFFILIATED GROUP, OR

  BY ANY PRIVATE NONSCHOOL GROUP, CLUB, OR ORGANIZATION THAT HAS A

  RACIALLY DISCRIMINATORY ADMISSIONS POLICY.  THE COURT OF APPEALS

  SUSTAINED THE INJUNCTION INSOFAR AS THE USE OF CITY FACILITIES BY

SEGREGATED PRIVATE SCHOOLS WAS "EXCLUSIVE" AND NOT IN COMMON WITH

  OTHER CITIZENS, BUT REVERSED THE INJUNCTION AS IT APPLIED TO

  "NONEXCLUSIVE" USE BY SEGREGATED PRIVATE SCHOOLS AND TO USE BY

  NONSCHOOL GROUPS.  THE COURT FOUND AN INSUFFICIENT THREAT TO

  DESEGREGATED PUBLIC EDUCATION TO SUPPORT AN INJUNCTION

  RESTRAINING NONEXCLUSIVE USE BY PRIVATE SCHOOL GROUPS, AND NO

  "SYMBIOTIC RELATIONSHIP" BETWEEN THE CITY AND NONSCHOOL GROUPS SO

  THAT THE INJUNCTION IMPERMISSIBLY INTRUDED UPON THE FREEDOM OF

  ASSOCIATION OF CITIZENS WHO WERE MEMBERS OF SUCH GROUPS.  HELD: 

1.  THE CITY WAS PROPERLY ENJOINED FROM PERMITTING EXCLUSIVE

  ACCESS TO ITS RECREATIONAL FACILITIES BY SEGREGATED PRIVATE

  SCHOOLS AND BY GROUPS AFFILIATED WITH SUCH SCHOOLS.  PP. 566 -

  569. 

     (A) USING THE TERM "EXCLUSIVE USE" AS IMPLYING THAT AN ENTIRE

  FACILITY IS EXCLUSIVELY, AND COMPLETELY, IN THE POSSESSION,

  CONTROL, AND USE OF A PRIVATE GROUP, AND AS ALSO IMPLYING,

  WITHOUT MANDATING, A DECISIONMAKING ROLE FOR THE CITY IN

  ALLOCATING SUCH FACILITIES AMONG PRIVATE AND PUBLIC GROUPS, THE

  CITY'S POLICY OF ALLOCATING FACILITIES TO SEGREGATED PRIVATE

  SCHOOLS, IN THE CONTEXT OF THE 1959 ORDER AND SUBSEQUENT HISTORY,

  CREATED, IN EFFECT, "ENCLAVES OF SEGREGATION"  AND DEPRIVED

  PETITIONERS OF EQUAL ACCESS TO PARKS AND RECREATIONAL

  FACILITIES.  PP. 566 - 567. 

     (B) THE EXCLUSIVE USE AND CONTROL OF CITY RECREATIONAL

  FACILITIES, HOWEVER TEMPORARY, BY PRIVATE SEGREGATED SCHOOLS WERE

  LITTLE DIFFERENT FROM THE CITY'S AGREEMENT WITH YMCA TO RUN A

  "COORDINATED"  BUT, IN EFFECT, SEGREGATED RECREATIONAL PROGRAM. 

  THIS USE CARRIED THE BRAND OF "SEPARATE BUT EQUAL" AND, IN THE

  CIRCUMSTANCES OF THIS CASE, WAS PROPERLY TERMINATED BY THE

  DISTRICT COURT.  PP. 567 - 568. 

     (C) MORE IMPORTANTLY, THE CITY'S POLICIES OPERATED DIRECTLY TO

  CONTRAVENE AN OUTSTANDING SCHOOL DESEGRATION ORDER, AND ANY

  ARRANGEMENT, IMPLEMENTED BY STATE OFFICIALS AT ANY LEVEL, THAT

  SIGNIFICANTLY TENDS TO PERPETUATE A DUAL SCHOOL SYSTEM, IN

  WHATEVER MANNER, IS CONSTITUTIONALLY IMPERMISSIBLE.  PP. 568 -

  569. 

     2.  ON THE RECORD, IT IS NOT POSSIBLE TO DETERMINE WHETHER THE

  USE OF THE CITY'S RECREATIONAL FACILITIES BY PRIVATE SCHOOL

  GROUPS IN COMMON WITH OTHERS, AND BY PRIVATE NONSCHOOL

  ORGANIZATIONS, INVOLVED THE CITY SO DIRECTLY IN THE ACTIONS OF

  THOSE USERS AS TO WARRANT COURT INTERVENTION ON CONSTITUTIONAL

GROUNDS.  PP. 569 - 574. 

     (A) THE RECORD DOES NOT CONTAIN SUFFICIENT FACTS UPON WHICH TO

  PREDICATE LEGAL JUDGMENT AS TO WHETHER CERTAIN USES OF CITY

  FACILITIES IN COMMON BY PRIVATE SCHOOL GROUPS OR EXCLUSIVELY OR

  IN COMMON BY NONSCHOOL GROUPS CONTRAVENED THE PARKS DESEGREGATION

  ORDER, OR THE SCHOOL DESEGREGATION ORDER, OR IN SOME WAY

  CONSTITUTE "STATE ACTION" ASCRIBING TO THE CITY THE

DISCRIMINATORY ACTIONS OF THE GROUPS IN QUESTION.  P. 570. 

     (B) THE PORTION OF THE DISTRICT COURT'S ORDER PROHIBITING THE

  MERE USE OF CITY RECREATIONAL FACILITIES BY ANY SEGREGATED

  "PRIVATE GROUP, CLUB OR ORGANIZATION" IS INVALID BECAUSE IT WAS

  NOT PREDICATED UPON A PROPER FINDING OF STATE ACTION.  MOOSE

  LODGE NO. 107 V. IRVIS.  407 U.S. 163, DISTINGUISHED.  PP. 572 -

  574. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, POWELL, AND REHNQUIST, JJ., JOINED. 

 MARSHALL, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING

  IN PART, POST, P. 576.  BRENNAN, J., FILED AN OPINION CONCURRING

  IN THE JUDGMENT, POST, P. 577.  WHITE, J., FILED AN OPINION

  CONCURRING IN THE JUDGMENT, IN WHICH DOUGLAS, J., JOINED, POST,

  P. 581. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THE PRESENT PHASE OF THIS PROLONGED LITIGATION CONCERNS THE
PROPRIETY OF A FEDERAL COURT'S ENJOINING A MUNICIPALITY FROM PERMITTING
THE USE OF PUBLIC PARK RECREATIONAL FACILITIES BY PRIVATE SEGREGATED
SCHOOL GROUPS AND BY OTHER NONSCHOOL GROUPS THAT ALLEGEDLY DISCRIMINATE
IN THEIR MEMBERSHIP ON THE BASIS OF RACE.  WE GRANTED CERTIORARI TO
CONSIDER THIS IMPORTANT ISSUE.  414 U.S. 907 (1973). 

        I 

PETITIONERS ARE NEGRO CITIZENS OF MONTGOMERY, ALABAMA.  IN DECEMBER
1958, NOW OVER 15 YEARS AGO, THEY INSTITUTED THIS CLASS ACTION TO
DESEGREGATE MONTGOMERY'S PUBLIC PARKS.  THE DEFENDANTS ARE THE CITY,
ITS BOARD OF COMMISSIONERS AND THE MEMBERS THEREOF, THE PARKS AND
RECREATION BOARD AND ITS MEMBERS, AND THE SUPERINTENDENT OF THE PARKS
AND RECREATIONAL PROGRAM. 

BY THEIR ORIGINAL COMPLAINT, THE PETITIONERS SPECIFICALLY
CHALLENGED, ON FOURTEENTH AMENDMENT DUE PROCESS AND

EQUAL PROTECTION GROUNDS, A MONTGOMERY ORDINANCE (NO. 21 - 57, ADOPTED
JUNE 4, 1957) WHICH MADE IT A MISDEMEANOR, SUBJECT TO FINE AND
IMPRISONMENT, "FOR WHITE AND COLORED PERSONS TO ENTER UPON, VISIT, USE
OR IN ANY WAY OCCUPY PUBLIC PARKS OR OTHER PUBLIC HOUSES OR PUBLIC
PLACES, SWIMMING POOLS, WADDING POOLS, BEACHES, LAKES OR PONDS EXCEPT
THOSE ASSIGNED TO THEIR RESPECTIVE RACES."  BOTH DECLARATORY AND
INJUNCTIVE RELIEF WERE REQUESTED.  /1/  ON SEPTEMBER 9, 1959, THE
DISTRICT COURT ENTERED ITS JUDGMENT THAT THE ORDINANCE WAS
UNCONSTITUTIONAL AND ENJOINED THE DEFENDANTS FROM ENFORCING THE
ORDINANCE "OR ANY CUSTOM, PRACTICE, POLICY OR USAGE WHICH MAY REQUIRE
PLAINTIFFS, OR ANY OTHER NEGROES SIMILARLY SITUATED, TO SUBMIT TO
ENFORCED SEGREGATION SOLELY BECAUSE OF RACE OR COLOR IN THEIR USE OF
ANY PUBLIC PARKS OWNED AND OPERATED BY THE CITY OF MONTGOMERY,
ALABAMA."  THE JUDGMENT WAS ACCOMPANIED BY A MEMORANDUM OPINION.  176
F. SUPP. 776 (MD ALA. 1959).  ON APPEAL, THE FIFTH CIRCUIT AFFIRMED BUT
ORDERED THE JUDGMENT MODIFIED TO PROVIDE THAT THE DISTRICT COURT RETAIN
JURISDICTION.  277 F.2D 364, 368 (1960).  THE TRIAL COURT, ACCORDINGLY,
RULED THAT IT "WILL AND DOES HEREBY RETAIN JURISDICTION OF THIS CAUSE
UNTIL FURTHER ORDER."  /2/ 

IN 1970, THE PETITIONERS SOUGHT TO REOPEN THE LITIGATION.  THEY
FILED A MOTION ASKING, AMONG OTHER RELIEF, THAT THE RESPONDENTS BY
CITED FOR CONTEMPT "FOR DELIBERATELY AVOIDING AND VIOLATING THIS
COURT'S JUDGMENT AND ORDER IN THIS CASE."  /3/  THE MOTION CONTAINED
ALLEGATIONS THAT SOME OF THE MUNICIPAL PARKS HAD BEEN REOPENED "IN SUCH
A MANNER TO AVOID THE TOTAL AND FULL INTEGRATION OF SAID PARKS"; THAT
THE CITY HAD CONSPIRED WITH THE MONTGOMERY YMCA TO SEGREGATE SWIMMING
AND OTHER RECREATIONAL FACILITIES AND PROGRAMS; THAT RECREATIONAL
FACILITIES WERE UNEQUALLY ALLOCATED AS BETWEEN WHITE AND NEGRO
NEIGHBORHOODS; AND THAT THE CITY DISCRIMINATED IN ITS EMPLOYMENT OF
PERSONNEL IN RECREATIONAL PROGRAMS.  THE BASIS FOR THESE CLAIMS AROSE
FROM OTHER, SEPARATE LITIGATION INITIATED IN 1969 AND RESULTING IN THE
GRANTING OF AFFIRMATIVE RELIEF TO THE PLAINTIFFS IN THAT SUIT.  SEE
SMITH V. YOUNG MEN'S CHRISTIAN ASSN., 316 F. SUPP. 899 (MD ALA. 1970),
AFF'D AS MODIFIED, 462 F.2D 634 (CA5 1972).  IN THAT ACTION THE
DISTRICT COURT FOUND THAT THE "COORDINATED EFFORT" OF THE CITY AND OF
THE YMCA, 316 F. SUPP., AT 908, AND AN AGREEMENT BETWEEN THEM, REACHED
SHORTLY BEFORE THE CLOSING OF THE CITY PARKS AND THE ENTRY OF THE
COURT'S 1959 DECREE, HAD EFFECTUATED "THE PERPETUATION OF SEGREGATED
RECREATIONAL FACILITIES AND THE PROGRAMS IN THE CITY OF MONTGOMERY,"
ID., AT 909, AND THAT IT WAS "UNMISTAKABLY CLEAR THAT ITS PURPOSE WAS
TO CIRCUMVENT THE SUPREME COURT'S AND THIS COURT'S DESEGREGATION
RULINGS IN THE AREA OF PUBLIC RECREATION."  ID., AT 908.  /4/  AS
SUMMARIZED BY THE COURT OF APPEALS, THE DISTRICT COURT CONCLUDED: 

"(THE YMCA, AS A RESULT OF THE COOPERATIVE AGREEMENT, HAS BEEN
PERFORMING A STATUTORILY DECLARED 'PUBLIC FUNCTION'; THE MONTGOMERY
PARK AND RECREATION BOARD HAS, IN EFFECT, TRANSFERRED SOME OF ITS
STATUTORY AUTHORITY AND RESPONSIBILITY TO THE YMCA, THEREBY INVESTING
THE YMCA WITH A MUNICIPAL CHARACTER; AND THEREFORE THE YMCA HAS BEEN
SERVING AS A MUNICIPAL RATHER THAN A PRIVATE AGENCY IN ASSISTING THE
PARK BOARD IN PROVIDING RECREATIONAL PROGRAMS FOR THE CITY. 

        .         .         .         .      . 

"(THE YMCA'S DISCRIMINATORY CONDUCT DENIED THE PLAINTIFFS THEIR
FOURTEENTH AMENDMENT RIGHTS TO EQUAL PROTECTION OF THE LAW; UNDER THE
FACTS OF THIS CASE THE PLAINTIFFS' SHOWING OF 'STATE ACTION' SATISFIES
THE REQUIREMENT UNDER TITLE 42, U.S.C. SECTION 1983 THAT THE YMCA'S
CONDUCT BE 'UNDER COLOR OF LAW.'"  462 F.2D, AT 641 - 642.  THE
MODIFICATION BY THE COURT OF APPEALS RELATED ONLY TO THE DISAPPROVAL OF
A PROVISION IN THE DISTRICT COURT'S ORDER DIRECTING A SPECIFIC NEGRO
WHITE RATIO IN THE YMCA'S BOARD AND EXECUTIVE COMMITTEE.  NO REVIEW WAS
SOUGHT HERE. 

THE CLAIMS RAISED BY THE PETITIONERS IN THEIR 1970 MOTION WERE
SETTLED BY AGREEMENT DATED JANUARY 29, 1971.  /5/  ON JULY 29, THE
RESPONDENTS FILED THEIR FIRST WRITTEN PROGRESS REPORT.  ON SEPTEMBER 8,
THE PETITIONERS FILED A "MOTION FOR SUPPLEMENTAL RELIEF."  APP. 15. 
THIS MOTION FORMS THE BASIS FOR THE PRESENT PHASE OF THE LITIGATION. 
THE PETITIONERS COMPLAINED THAT THE CITY WAS PERMITTING RACIALLY
SEGREGATED SCHOOLS AND OTHER SEGREGATED PRIVATE GROUPS AND CLUBS TO USE
CITY PARKS AND RECREATIONAL FACILITIES.  THEY REQUESTED INJUNCTIVE
RELIEF AGAINST "THE USE OF CITY OWNED AND OPERATED RECREATIONAL
FACILITIES BY ANY PRIVATE SCHOOL GROUP, CLUB, OR ORGANIZATION WHICH IS
RACIALLY SEGREGATED OR WHICH HAS A RACIALLY DISCRIMINATORY ADMISSIONS
POLICY." 

THE DISTRICT COURT GRANTED THE PETITIONERS THE RELIEF THEY
REQUESTED.  337 F. SUPP. 22 (MD ALA. 1972).  THE COURT REASONED THAT
MONTGOMERY OFFICIALS WERE UNDER AN AFFIRMATIVE DUTY TO BRING ABOUT AND
TO MAINTAIN A DESEGREGATED PUBLIC SCHOOL SYSTEM.  PROVIDING
RECREATIONAL FACILITIES TO DE FACTO OR DE JURE SEGREGATED PRIVATE
SCHOOLS WAS INCONSISTENT WITH THAT DUTY BECAUSE SUCH AID ENHANCED THE
ATTRACTIVENESS OF THOSE SCHOOLS, GENERATED CAPITAL SAVINGS THAT COULD
BE USED TO IMPROVE THEIR PRIVATE EDUCATIONAL OFFERINGS, AND PROVIDED
MEANS TO RAISE OTHER REVENUE TO SUPPORT THE INSTITUTIONS, ALL TO THE
DETRIMENT OF ESTABLISHING THE CONSTITUTIONALLY MANDATED UNITARY PUBLIC
SCHOOL SYSTEM.  THE COURT, CONSEQUENTLY, ENJOINED THE CITY AND ITS
OFFICIALS "FORM PERMITTING OR IN ANY WAY SANCTIONING THE USE OF CITY
OWNED OR OPERATED RECREATIONAL FACILITIES BY ANY PRIVATE SCHOOL, OR
PRIVATE SCHOOL AFFILIATED GROUP, IF SUCH SCHOOL OR GROUP IS RACIALLY
SEGREGATED OR IF IT HAS A RACIALLY DISCRIMINATORY ADMISSIONS POLICY." 
ID., AT 26.  THE COURT WENT ON, HOWEVER, WITH SPARSE FINDINGS AND BRIEF
DISCUSSION, AND SIMILARLY ENJOINED THE CITY AND ITS OFFICIALS FROM
PERMITTING OR SANCTIONING THE USE OF CITY RECREATIONAL FACILITIES "BY
ANY PRIVATE GROUP, CLUB OR ORGANIZATION WHICH IS NOT AFFILIATED WITH A
PRIVATE SCHOOL AND WHICH HAS A RACIALLY DISCRIMINATORY ADMISSIONS
POLICY."  IBID.  /6/ 

ON APPEAL, THE COURT OF APPEALS REVERSED IN PART AND REMANDED THE
CASE WITH DIRECTIONS.  473 F.2D 832 (CA5 1973).  IT SUSTAINED THAT PART
OF THE INJUNCTION WHICH RESTRAINED THE USE OF CITY FACILITIES BY
SEGREGATED PRIVATE SCHOOLS WHEN THAT USE WAS "EXCLUSIVE" AND NOT IN
COMMON WITH OTHER CITIZENS.  ID., AT 837.  THE COURT RULED, HOWEVER,
THAT "NONEXCLUSIVE ENJOYMENT" OF THOSE FACILITIES BY PRIVATE SCHOOL
CHILDREN "WAS NOT PROVEN TO PRESENT A SUFFICIENT THREAT TO DESEGREGATED
PUBLIC EDUCATION TO SUPPORT AN INJUNCTION RESTRAINING THE CLEAR
PERSONAL RIGHT OF THE AFFECTED CHILDREN TO ENJOY SUCH USAGE IN COMMON
WITH THE REST OF THE PUBLIC."  IBID.  WITH RESPECT TO THAT PORTION OF
THE DISTRICT COURT'S ORDER CONCERNING OTHER PRIVATE NONSCHOOL GROUPS,
THE COURT OF APPEALS HELD THAT THERE WAS NO "SYMBIOTIC RELATIONSHIP" OF
THE KIND PRESENT AND CONDEMNED IN BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715 (1961).  CONSEQUENTLY, IT HELD THAT UNDER MOOSE
LODGE NO. 107 V. IRVIS, 407 U.S. 163 (1972), THAT PORTION OF THE
DISTRICT COURT'S ORDER DEALING WITH NONSCHOOL GROUPS HAD TO BE REVERSED
BECAUSE THE INJUNCTION IMPERMISSIBLY INTRUDED UPON THE FREEDOM OF
ASSOCIATION OF CITIZENS WHO WERE MEMBERS OF PRIVATE GROUPS.  THE COURT,
ACCORDINGLY, ORDERED DELETION OF CERTAIN PARAGRAPHS OF THE INJUNCTIVE
ORDER AND THE CLARIFICATION OF OTHERS.  473 F.2D, AT 839 - 840.  THE
DISTRICT COURT COMPLIED WITH THAT MANDATE AND, IN PARTICULAR, ADDED THE
FOLLOWING PARAGRAPH TO ITS INJUNCTIVE ORDER: 

     "THE INJUNCTION ISSUED BY THIS COURT DOES NOT PROHIBIT THE
CITY

  OF MONTGOMERY FROM PERMITTING NON-EXCLUSIVE ACCESS TO PUBLIC

  RECREATIONAL FACILITIES AND GENERAL GOVERNMENT SERVICES BY

  PRIVATE SCHOOLS OR SCHOOL AFFILIATED GROUPS." 

THE PLAINTIFFS PETITIONED FOR CERTIORARI; THE DEFENDANTS DID NOT CROSS
PETITION. 

        II 

THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT
PROHIBIT THE "(INDIVIDUAL INVASION OF INDIVIDUAL RIGHTS."  CIVIL RIGHTS
CASES, 109 U.S. 3, 11 (1883).  IT DOES PROSCRIBE, HOWEVER, STATE ACTION
"OF EVERY KIND" THAT OPERATES TO DENY ANY CITIZEN THE EQUAL PROTECTION
OF THE LAWS.  IBID.  THIS PROSCRIPTION ON STATE ACTION APPLIES DE FACTO
AS WELL AS DE JURE BECAUSE "(CONDUCT THAT IS FORMALLY 'PRIVATE' MAY
BECOME SO ENTWINED WITH GOVERNMENTAL POLICIES OR SO IMPREGNATED WITH A
GOVERNMENTAL CHARACTER AS TO BECOME SUBJECT TO THE CONSTITUTIONAL
LIMITATIONS PLACED UPON STATE ACTION."  EVANS V. NEWTON, 382 U.S. 296,
299 (1966).  IN THE PRESENT CASE WE MUST DETERMINE WHETHER THE CITY OF
MONTGOMERY ENGAGED IN DISCRIMINATORY ACTIVITY VIOLATIVE OF THE PARKS
DESEGREGATION ORDER.  WE MUST ALSO DECIDE WHETHER THE CITY'S
INVOLVEMENT IN THE ALLEGED DISCRIMINATORY ACTIVITY OF SEGREGATED
PRIVATE SCHOOLS AND OTHER PRIVATE GROUPS, THROUGH ITS PROVIDING
RECREATIONAL FACILITIES, CONSTITUTES "STATE ACTION" SUBJECT TO
CONSTITUTIONAL LIMITATION. 

        A 

THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT INSOFAR AS THE
LATTER ENJOINED THE "EXCLUSIVE POSSESSION OF PUBLIC RECREATIONAL
FACILITIES SUCH AS FOOTBALL STADIUMS, BASEBALL DIAMONDS, BASKETBALL
COURTS, AND TENNIS COURTS FOR OFFICIAL ATHLETIC CONTESTS AND SIMILAR
FUNCTIONS SPONSORED BY RACIALLY SEGREGATED PRIVATE SCHOOLS."  473 F.2D,
AT 836 - 837.  THE BOUNDARIES OF THIS "EXCLUSIVE" USE APPROACH,
HOWEVER, ARE NOT SELF-EVIDENT.  WE FIND THE CONCEPT HELPFUL NOT SO MUCH
AS A CONTROLLING LEGAL PRINCIPLE BUT AS A DESCRIPTION OF A TYPE OF USE
AND, IN THE CONTEXT OF THIS CASE, SUGGESTIVE OF A MEANS OF ALLOCATING
PUBLIC RECREATIONAL FACILITIES.  THE TERM "EXCLUSIVE USE"  IMPLIES THAT
AN ENTIRE FACILITY IS EXCLUSIVELY, AND COMPLETELY IN THE POSSESSION,
CONTROL, AND USE OF A PRIVATE GROUP.  /7/  IT ALSO IMPLIES, WITHOUT
MANDATING, A DECISION-MAKING ROLE FOR THE CITY IN ALLOCATING SUCH
FACILITIES AMONG PRIVATE AND, FOR THAT MATTER, PUBLIC GROUPS. 

UPON THIS UNDERSTANDING OF THE TERM, WE AGREE WITH PETITIONERS THAT
THE CITY'S POLICY OF ALLOCATING FACILITIES TO SEGREGATED PRIVATE
SCHOOLS, IN THE CONTEXT OF TEH 1959 PARKS DESEGREGATION ORDER AND
SUBSEQUENT HISTORY, CREATED, IN EFFECT, "ENCLAVES OF SEGREGATION" AND
DEPRIVED PETITIONERS OF EQUAL ACCESS TO PARKS AND RECREATIONAL
FACILITIES.  THE CITY WAS UNDER AN AFFIRMATIVE CONSTITUTIONAL DUTY TO
ELIMINATE EVERY "CUSTOM, PRACTICE, POLICY OR USAGE" REFLECTING AN
"IMPERMISSIBLE OBEISANCE TO THE NOW THOROUGHLY DISCREDITED DOCTRINE OF
'SEPARATE BUT EQUAL.'"  WATSON V. MEMPHIS, 373U.S. 526, 538 (1963). 
THIS OBVIOUSLY MEANT THAT DISCRIMINATORY PRACTICES IN MONTGOMERY PARKS
AND RECREATIONAL FACILITIES WERE TO BE ELIMINATED "ROOT AND BRANCH," TO
USE THE PHRASE EMPLOYED IN GREEN V. COUNTY SCHOOL BOARD OF NEW KENT
COUNTY, 391 U.S. 430, 438 (1968). 

INSTEAD OF PROMPT AND ORDERLY COMPLIANCE WITH THE DISTRICT COURT'S
MANDATE, HOWEVER, THE CITY OF MONTGOMERY ENGAGED IN AN ELABORATE
SUBTERFUGE TO ANTICIPATE AND CIRCUMVENT THE COURT'S ORDER.  SEGREGATED
RECREATIONAL PROGRAMS CONTINUED TO BE PRESENTED THROUGH THE
CONVENIENTLY COOPERATING PRIVATE AGENCY OF THE LOCAL YMCA.  ALL PUBLIC
SWIMMING WERE CLOSED ALLEGEDLY TO PREVENT THE MIXING OF RACES. 
FACILITIES IN NEGRO NEIGHBORHOODS WERE NOT MAINTAINED EQUALLY WITH
THOSE IN WHITE NEIGHBORHOODS.  IN LIGHT OF THESE FACTS, MADE PART OF
THE RECORD IN THIS CASE, /8/  IT WAS ENTIRELY APPROPRIATE FOR THE
DISTRICT COURT CAREFULLY TO SCRUTINIZE ANY PRACTICE OR POLICY THAT
WOULD TEND TO ABANDON TO SEGREGATED PRIVATE GROUPS FACILITIES NORMALLY
OPEN TO MEMBERS OF ALL RACES ON AN EQUAL BASIS.  HERE, THE EXCLUSIVE
USE AND CONTROL OF CITY RECREATIONAL FACILITIES, HOWEVER TEMPORARY, BY
PRIVATE SEGREGATED SCHOOLS WERE LITTLE DIFFERENT FROM THE CITY'S
AGREEMENT WITH YMCA TO RUN A "COORDINATED" BUT, IN EFFECT, SEGREGATED
RECREATIONAL PROGRAM.  SUCH USE AND CONTROL CARRIED THE BRAND OF
"SEPARATE BUT EQUAL" AND, IN THE CIRCUMSTANCES OF THIS CASE, WERE
PROPERLY TERMINATED BY THE DISTRICT COURT. 

PARTICULARLY IMPORTANT IS THE FACT THAT THE CITY'S POLICIES OPERATED
DIRECTLY TO CONTRAVENE AN OUTSTANDING SCHOOL DESEGREGATION ORDER.  SEE
CARR V. MONTGOMERY COUNTY BOARD OF EDUCATION, 232 F. SUPP. 705 (MD ALA.
1964); 253 F. SUPP. 309 (1966); 289 F. SUPP. 647 (1968).  AFF'D AS
MODIFIED, 400 F.2D 1, 402 F.2D 782, 784, 787 (CA5 1968), REV'D AND
REMANDED SUB NOM. UNITED STATES V. MONTGOMERY COUNTY BOARD OF
EDUCATION, WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE DISTRICT
COURT, 395 U.S. 225 (1969).  /9/  CERTAINLY, THE CITY'S OFFICIALS WERE
AWARE OF THIS ORDER AND WERE RESPONSIBLE FOR SEEING THAT NO ACTIONS ON
THEIR PART WOULD SIGNIFICANTLY IMPEDE THE PROGRESS OF SCHOOL
DESEGREGATION IN THE CITY.  COOPER V. AARON, 358 U.S. 1 (1959); GREEN
V. COUNTY SCHOOL BOARD OF NEW KENT COUNTY, 391 U.S., AT 437 - 438;
ALEXANDER V. HOLMES COUNTY BOARD OF EDUCATION, 396 U.S. 19, 20 (1969). 
ANY ARRANGEMENT, IMPLEMENTED BY STATE OFFICIALS AT ANY LEVEL, WHICH
SIGNIFICANTLY TENDS TO PERPETUATE A DUAL SCHOOL SYSTEM, IN WHATEVER
MANNER, IS CONSTITUTIONALLY IMPERMISSIBLE.  "(THE CONSTITUTIONAL RIGHTS
OF CHILDREN NOT TO BE DISCRIMINATED AGAINST . . . CAN NEITHER BE
NULLIFIED OPENLY AND DIRECTLY BY STATE LEGISLATORS OR STATE EXECUTIVE
OR JUDICIAL OFFICERS, NOR NULLIFIED INDIRECTLY BY THEM THROUGH EVASIVE
SCHEMES FOR SEGREGATION WHETHER ATTEMPTED 'INGENIOUSLY OR
INGENUOUSLY.'"  COOPER V. AARON, 358 U.S., AT 17.  THIS MEANS THAT ANY
TANGIBLE STATE ASSISTANCE, OUTSIDE THE GENERALIZED SERVICES GOVERNMENT
MIGHT PROVIDE TO PRIVATE SEGREGATED SCHOOLS IN COMMON WITH OTHER
SCHOOLS, AND WITH ALL CITIZENS, IS CONSTITUTIONALLY PROHIBITED IF IT
HAS "A SIGNIFICANT TENDENCY TO FACILITATE, REINFORCE, AND SUPPORT
PRIVATE DISCRIMINATION."  NORWOOD V. HARRISON, 413 U.S. 455, 466
(1973).  THE CONSTITUTIONAL OBLIGATION OF THE STATE "REQUIRES IT TO
STEER CLEAR, NOT ONLY OF OPERATING THE OLD DUAL SYSTEM OF RACIALLY
SEGREGATED SCHOOLS, BUT ALSO OF GIVING SIGNIFICANT AID TO INSTITUTIONS
THAT PRACTICE RACIAL OR OTHER INVIDIOUS DISCRIMINATION."  ID., AT 467. 

HERE, THE CITY'S ACTIONS SIGNIFICANTLY ENHANCED THE ATTRACTIVENESS
OF SEGREGATED PRIVATE SCHOOLS, FORMED IN REACTION AGAINST THE FEDERAL
COURT SCHOOL ORDER, BY ENABLING THEM TO OFFER COMPLETE ATHLETIC
PROGRAMS.  THE CITY'S PROVISION OF STADIUMS AND RECREATIONAL FIELDS
RESULTED IN CAPITAL SAVINGS FOR THOSE SCHOOLS AND ENABLED THEM TO
DIVERT THEIR OWN FUNDS TO OTHER EDUCATIONAL PROGRAMS.  IT ALSO PROVIDED
THE OPPORTUNITY FOR THE SCHOOLS TO OPERATE CONCESSIONS THAT GENERATED
REVENUE.  WE ARE PERSUADED, AS WERE BOTH THE DISTRICT COURT AND THE
COURT OF APPEALS, THAT THIS ASSISTANCE SIGNIFICANTLY TENDED TO
UNDERMINE THE FEDERAL COURT ORDER MANDATING THE ESTABLISHMENT AND
MAINTENANCE OF A UNITARY SCHOOL SYSTEM IN MONTGOMERY.  IT THEREFORE WAS
WHOLLY PROPER FOR THE CITY TO BE ENJOINED FROM PERMITTING EXCLUSIVE
ACCESS TO PUBLIC RECREATIONAL FACILITIES BY SEGREGATED PRIVATE SCHOOLS
AND BY GROUPS AFFILIATED WITH SUCH SCHOOLS. 

        B 

ALTHOUGH THE COURT OF APPEALS RULED OUT THE EXCLUSIVE USE OF CITY
FACILITIES BY PRIVATE SCHOOLS, IT WENT ON TO MODIFY THE DISTRICT COURT
ORDER "TO MAKE CLEAR THAT THE CITY OF MONTGOMERY IS NOT PROHIBITED FROM
PERMITTING NONEXCLUSIVE ACCESS TO PUBLIC RECREATIONAL FACILITIES AND
GENERAL GOVERNMENT SERVICES BY PRIVATE SCHOOLS OR SCHOOL AFFILIATED
GROUPS," 473 F.2D, AT 840, OR FROM PERMITTING ACCESS TO THESE
FACILITIES BY PRIVATE ORGANIZATIONS THAT HAVE A RACIALLY DISCRIMINATORY
ADMISSIONS POLICY.  ID., AT 839.  UPON THIS RECORD, WE ARE UNABLE TO
DRAW A CONCLUSION AS TO WHETHER THE USE OF ZOOS, MUSEUMS, PARKS, AND
OTHER RECREATIONAL FACILITIES BY PRIVATE SCHOOL GROUPS IN COMMON WITH
OTHERS, AND BY PRIVATE NONSCHOOL ORGANIZATIONS, INVOLVES GOVERNMENT SO
DIRECTLY IN THE ACTIONS OF THOSE USERS AS TO WARRANT COURT INTERVENTION
ON CONSTITUTIONAL GROUNDS. 

IT WOULD BE IMPROPER TO DETERMINE AT THIS STAGE THE APPROPRIATENESS
OF FURTHER RELIEF IN ALL THE MANY AND VARIED SITUATIONS WHERE
FACILITIES ARE USED IN COMMON BY SCHOOL GROUPS OR USED EXVLUSIVELY OR
IN COMMON BY PRIVATE GROUPS.  IT IS POSSIBLE THAT CERTAIN USES OF CITY
FACILITIES WILL BE JUDGED TO BE IN CONTRAVENTION OF THE PARKS
DESEGREGATION ORDER, OR THE SCHOOL DESEGREGATION ORDER, OR IN SOME WAY
TO CONSTITUTE IMPERMISSIBLE "STATE ACTION" ASCRIBING TO THE CITY THE
DISCRIMINATORY ACTIONS OF THE GROUPS.  THE RECORD BEFORE US DOES NOT
CONTAIN SUFFICIENT FACTS UPON WHICH TO PREDICATE LEGAL JUDGMENTS OF
THIS KIND.  THE QUESTIONS TO BE RESOLVED AND THE DECISIONS TO BE MADE
REST UPON CAREFUL IDENTIFICATION OF THE DIFFERENT TYPES OF CITY
FACILITIES THAT ARE AVAILABLE AND THE VARIOUS USES TO WHICH THEY MIGHT
BE PUT BY PRIVATE GROUPS.  /10/ 

THE DIFFICULTIES THAT CONFRONT US ON THIS RECORD ARE READILY
APPARENT.  UNDER APPROPRIATE CIRCUMSTANCES, THE DISTRICT COURT MIGHT
CONCLUDE, AS IT DID IN THE INSTANCE OF EXCLUSIVE USE BY PRIVATE
SCHOOLS, THAT ACCESS IN COMMON TO CITY FACILITIES BY PRIVATE SCHOOL
GROUPS WOULD INDEED CONTRAVENE THE SCHOOL DESEGREGATION ORDER.  FOR
EXAMPLE, ALL-WHITE PRIVATE SCHOOL BASKETBALL TEAMS MIGHT BE INVITED TO
PARTICIPATE IN A TOURNAMENT CONDUCTED ON PUBLIC RECREATIONAL FACILITIES
WITH DESEGREGATED PRIVATE AND PUBLIC SCHOOL TEAMS.  BECAUSE
"DISCRIMINATORY TREATMENT EXERTS A PERVASIVE INFLUENCE ON THE ENTIRE
EDUCATIONAL PROCESS," NORWOOD V. HARRISON, 413 U.S., AT 469, CITING
BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954), SUCH ASSISTANCE,
ALTHOUGH PROFFERED IN COMMON WITH FULLY DESEGREGATED GROUPS, MIGHT SO
DIRECTLY IMPEDE THE PROGRESS OF COURT-ORDERED SCHOOL DESEGREGATION
WITHIN THE CITY THAT IT WOULD BE APPROPRIATE TO FASHION EQUITABLE
RELIEF "ADJUSTING AND RECONCILING PUBLIC AND PRIVATE NEEDS."  BROWN V.
BOARD OF EDUCATION, 349 U.S. 294, 300 (1955).  THE ESSENTIAL FINDING
JUSTIFYING FURTHER RELIEF WOULD BE A SHOWING OF DIRECT IMPAIRMENT OF AN
OUTSTANDING SCHOOL DESEGREGATION ORDER.  COOPER V. AARON, 358 U.S., AT
17; BUSH V. ORLEANS PARISH SCHOOL BOARD, 364 U.S. 500 (1960); BROWN V.
SOUTH CAROLINA STATE BOARD OF EDUCATION, 296 F. SUPP. 199 (SC), AFF'D,
393 U.S. 222 (1968); POINDEXTER V. LOUISIANA FINANCIAL ASSISTANCE
COMM'N, 275 F. SUPP. 833 (ED LA. 1967), AFF'D, 389 U.S. 571 (1968); LEE
V. MACON COUNTY BOARD OF EDUCATION, 267 F. SUPP. 458 (MD ALA.), AFF'D,
SUB NOM. WALLACE V. UNITED STATES, 389 U.S. 215 (1967); NORWOOD V.
HARRISON, SUPRA. 

RELIEF WOULD ALSO BE APPROPRIATE IF A PARTICULAR USE CONSTITUTES A
VESTIGE OF THE TYPE OF STATE-SPONSORED RACIAL SEGREGATION IN PUBLIC
RECREATIONAL FACILITIES THAT WAS PROHIBITED IN THE PARKS DECREE AND
LIKEWISE CONDEMNED IN WATSON V. MEMPHIS, 373 U.S. 526 (1963).  SEE ALSO
DAWSON V. MAYOR AND CITY COUNCIL OF BALTIMORE, 220 F.2D 386 (CA4),
AFF'D, 350 U.S. 877 (1955); MUIR V. LOUISVILLE PARK THEATRICAL ASSN.,
347 U.S. 971 (1954); HOLMES V. CITY OF ATLANTA, 350 U.S. 879 (1955);
NEW ORLEANS CITY PARK IMPROVEMENT ASSN. V. DETIEGE, 358 U.S. 54
(1958).  FOR EXAMPLE, THE RECORD CONTAINS INDICATIONS THAT THERE ARE
ALL-WHITE PRIVATE AND ALL-NEGRO PUBLIC DIXIE YOUTH AND BABE RUTH
BASEBALL LEAGUES FOR CHILDREN, ALL OF WHICH USE CITY-PROVIDED
BALLFIELDS AND LIGHTING, BALLS, BATS, MITTS, AND OTHER AID.  WERE THE
DISTRICT COURT TO DETERMINE THAT THIS DUAL SYSTEM CAME ABOUT AS A MEANS
OF EVADING THE PARKS DECREE, OR OF SERVING TO PERPETUATE THE SEPARATE
BUT-EQUAL USE OF CITY FACILITIES ON THE BASIS OF RACE, THROUGH THE AID
AND ASSISTANCE OF THE CITY, FURTHER RELIEF WOULD BE APPROPRIATE. 

THE PROBLEM OF PRIVATE GROUP USE IS MUCH MORE COMPLEX.  THE COURT OF
APPEALS RELIED ON MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163 (1972), IN
CONCLUDING THAT THE USE OF CITY FACILITIES BY PRIVATE CLUBS DID NOT
REFLECT A "SYMBIOTIC" RELATIONSHIP BETWEEN GOVERNMENT AND THOSE GROUPS
SO AS TO CONSTITUTE STATE ACTION.  473 F.2D, AT 838 - 839. 

WE FEEL THAT MOOSE LODGE IS NOT FULLY APPLICABLE HERE.  IN THAT
CASE, WE GENERALLY FOLLOWED THE APPROACH TAKEN IN BURTON V. WILMINGTON
PARKING AUTHORITY, SUPRA, WHERE IT WAS STATED: 

"OWING TO THE VERY 'LARGENESS' OF GOVERNMENT, A MULTITUDE OF
RELATIONSHIPS MIGHT APPEAR TO SOME TO FALL WITHIN THE AMENDMENT'S
EMBRACE, BUT THAT, IT MUST BE REMEMBERED, CAN BE DETERMINED ONLY IN THE
FRAMEWORK OF THE PECULIAR FACTS OR CIRCUMSTANCES PRESENT."  365 U.S.,
AT 725 - 726.  IN MOOSE LODGE THE LITIGATION WAS DIRECTLY AGAINST A
PRIVATE ORGANIZATION, AND IT WAS ALLEGED THAT THE ORGANIZATION'S
RACIALLY DISCRIMINATORY POLICIES CONSTITUTED STATE ACTION.  WE HELD
THAT THERE WAS NO STATE ACTION IN THE MERE FACT THAT THE FRATERNAL
ORGANIZATION'S BEVERAGE BAR WAS LICENSED AND REGULATED BY THE STATE. 
IN CONTRAST, HERE, AS IN BURTON, THE QUESTION OF THE EXISTENCE OF STATE
ACTION CENTERS IN THE EXTENT OF THE CITY'S INVOLVEMENT IN
DISCRIMINATORY ACTIONS BY PRIVATE AGENCIES USING PUBLIC FACILITIES, AND
IN WHETHER THAT INVOLVEMENT MAKES THE CITY "A JOINT PARTICIPANT IN THE
CHALLENGED ACTIVITY, WHICH, ON THAT ACCOUNT, CANNOT BE CONSIDERED TO
HAVE BEEN SO 'PURELY PRIVATE' AS TO FALL WITHOUT THE SCOPE OF THE
FOURTEENTH AMENDMENT."  365 U.S., AT 725.  BECAUSE THE CITY MAKES CITY
PROPERTY AVAILABLE FOR USE BY PRIVATE ENTITIES, THIS CASE IS MORE LIKE
BURTON THAN MOOSE LODGE.  THE QUESTION THEN IS WHETHER THERE IS
SIGNIFICANT STATE INVOLVEMENT IN THE PRIVATE DISCRIMINATION ALLEGED. 
REITMAN V. MULKEY, 387 U.S. 369 (1967); BURTON V. WILMINGTON PARKING
AUTHORITY, SUPRA; EVANS V. NEWTON, 382 U.S. 296 (1966); MOOSE LODGE NO.
107 V. IRVIS, SUPRA.  "THE COURT HAS NEVER HELD, OF COURSE, THAT
DISCRIMINATION BY AN OTHERWISE PRIVATE ENTITY WOULD BE VIOLATIVE OF THE
EQUAL PROTECTION CLAUSE IF THE PRIVATE ENTITY RECEIVES ANY SORT OF
BENEFIT OR SERVICE AT ALL FROM THE STATE, OR IF IT IS SUBJECT TO STATE
REGULATION IN ANY DEGREE WHATEVER."  407 U.S., AT 173.  TRADITIONAL
STATE MONOPOLIES, SUCH AS ELECTRICITY, WATER, AND POLICE AND FIRE
PROTECTION--ALL GENERALIZED GOVERNMENTAL SERVICES--DO NOT BY THEIR MERE
PROVISION CONSTITUTE A SHOWING OF STATE INVOLVEMENT IN INVIDIOUS
DISCRIMINATION.  NORWOOD V. HARRISON, 413 U.S., AT 465; MOOSE LODGE NO.
107 V. IRVIS, 407 U.S., AT 173.  THE SAME IS TRUE OF A BROAD SPECTRUM
OF MUNICIPAL RECREATIONAL FACILITIES:  PARKS, PLAYGROUNDS, ATHLETIC
FACILITIES, AMPHITHEATERS, MUSEUMS, ZOOS, AND THE LIKE.  CF. EVANS V.
NEWTON, 382 U.S., AT 302.  IT FOLLOWS, THEREFORE, THAT THE PORTION OF
THE DISTRICT COURT'S ORDER PROHIBITING THE MERE USE OF SUCH FACILITIES
BY ANY SEGREGATED "PRIVATE GROUP, CLUB OR ORGANIZATION" IS INVALID
BECAUSE IT WAS NOT PREDICATED UPON A PROPER FINDING OF STATE ACTION. 

IF, HOWEVER, THE CITY OR OTHER GOVERNMENTAL ENTITY RATIONS OTHERWISE
FREELY ACCESSIBLE RECREATIONAL FACILITIES, THE CASE FOR STATE ACTION
WILL NATURALLY BE STRONGER THAN IF THE FACILITIES ARE SIMPLY AVAILABLE
TO ALL COMERS WITHOUT CONDITION OR RESERVATION.  HERE, FOR EXAMPLE,
PETITIONERS ALLEGE THAT THE CITY ENGAGES IN SCHEDULING SOFTBALL GAMES
FOR AN ALL-WHITE CHURCH LEAGUE AND PROVIDES BALLS, EQUIPMENT, FIELDS,
AND LIGHTING.  THE CITY'S ROLE IN THAT SITUATION WOULD BE DANGEROUSLY
CLOSE TO WHAT WAS FOUND TO EXIST IN BURTON, WHERE THE CITY HAD "ELECTED
TO PLACE ITS POWER, PROPERTY AND PRESTIGE BEHIND THE ADMITTED
DISCRIMINATION."  365 U.S., AT 725.  WE ARE REMINDED, HOWEVER, THAT THE
COURT HAS NEVER ATTEMPTED TO FORMULATE "AN INFALLIBLE TEST FOR
DETERMINING WHETHER THE STATE . . . HAS BECOME SIGNIFICANTLY INVOLVED
IN PRIVATE DISCRIMINATIONS"  SO AS TO CONSTITUTE STATE ACTION.  REITMAN
V. MULKEY, 387 U.S., AT 378.  "'ONLY BY SIFTING FACTS AND WEIGHING
CIRCUMSTANCES' ON A CASE-BY-CASE BASIS CAN A 'NONOBVIOUS INVOLVEMENT OF
THE STATE IN PRIVATE CONDUCT BE ATTRIBUTED ITS TRUE SIGNIFICANCE.'" 
IBID., QUOTING BURTON, 365 U.S., AT 722.  THIS IS THE TASK FOR THE
DISTRICT COURT ON REMAND. 

        III 

WE CLOSE WITH THIS WORD OF CAUTION.  IT SHOULD BE OBVIOUS THAT THE
EXCLUSION OF ANY PERSON OR GROUP--ALL-NEGRO, ALL-ORIENTAL, OR ALL-WHITE
-FROM PUBLIC FACILITIES INFRINGES UPON THE FREEDOM OF THE INDIVIDUAL TO
ASSOCIATE AS HE CHOOSES.  MR. JUSTICE DOUGLAS EMPHASIZED THIS IN HIS
DISSENT, JOINED BY MR. JUSTICE MARSHALL, IN MOOSE LODGE.  HE OBSERVED,
"THE ASSOCIATIONAL RIGHTS WHICH OUR SYSTEM HONORS PERMIT ALL WHITE, ALL
BLACK, ALL BROWN, AND ALL YELLOW CLUBS TO BE FORMED.  THEY ALSO PERMIT
ALL CATHOLIC, ALL JEWISH, OR ALL AGNOSTIC CLUBS TO BE ESTABLISHED. 
GOVERNMENT MAY NOT TELL A MAN OR WOMAN WHO HIS OR HER ASSOCIATES MUST
BE.  THE INDIVIDUAL CAN BE AS SELECTIVE AS HE DESIRES."  407 U.S., AT
179 - 180.  THE FREEDOM TO ASSOCIATE APPLIES TO THE BELIEFS WE SHARE,
AND TO THOSE WE CONSIDER REPREHENSIBLE.  IT TENDS TO PRODUCE THE
DIVERSITY OF OPINION THAT OILS THE MACHINERY OF DEMOCRATIC GOVERNMENT
AND INSURES PEACEFUL, ORDERLY CHANGE.  BECAUSE ITS EXERCISE IS LARGELY
DEPENDENT ON THE RIGHT TO OWN OR USE PROPERTY, HEALY V. JAMES, 408 U.S.
169, 181 - 183 (1972), ANY DENIAL OF ACCESS TO PUBLIC FACILITIES MUST
WITHSTAND CLOSE SCRUTINY AND BE CAREFULLY CIRCUMSCRIBED.  CERTAINLY, A
PERSON'S MERE MEMBERSHIP IN AN ORGANIZATION WHICH POSSESSES A
DISCRIMINATORY ADMISSIONS POLICY WOULD NOT ALONE BE GROUND FOR HIS
EXCLUSION FROM PUBLIC FACILITIES.  HAVING SAID THIS, HOWEVER, WE MUST
ALSO BE AWARE THAT THE VERY EXERCISE OF THE FREEDOM TO ASSOCIATE BY
SOME MAY SERVE TO INFRINGE THAT FREEDOM FOR OTHERS.  INVIDIOUS
DISCRIMINATION TAKES ITS OWN TOLL ON THE FREEDOM TO ASSOCIATE, AND IT
IS NOT SUBJECT TO AFFIRMATIVE CONSTITUTIONAL PROTECTION WHEN IT
INVOLVES STATE ACTION.  NORWOOD V. HARRISON, 413 U.S., AT 470. 

THE JUDGMENT OF THE COURT OF APPEALS IS THEREFORE REVERSED IN PART. 
THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND IT IN TURN
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  PRIOR TO THE INSTITUTION OF TH SUIT, SOME OF THE PLAINTIFFS HAD
PETITIONED THE CITY'S PARKS AND RECREATION BOARD, AND THE PLAINTIFFS
AND OTHERS HAD PETITIONED THE CITY'S BOARD OF COMMISSIONERS TO PROVIDE
ACCESS TO THE CITY PARKS FOR PETITIONERS AND ALL OTHER NEGRO CITIZENS
SIMILARLY SITUATED.  THE CHAIRMAN OF THE PARKS AND RECREATION BOARD
REPLIED THAT THE BOARD "HAS NO AUTHORITY IN THIS MATTER."  THE BOARD OF
COMMISSIONERS RESPONDED, "THE COMMISSION WILL NOT OPERATE INTEGRATED
PARKS."  EXHIBITS ATTACHED TO COMPLAINT FILED DEC. 22, 1958, IN CIVIL
ACTION NO. 1490 - N, UNITED STATES DISTRICT COURT FOR HE MIDDLE
DISTRICT OF ALABAMA, NORTHERN DIVISION. 

WITHIN DAYS AFTER PETITIONERS FILED THEIR SUIT, THE CITY
AUTHORITIES, BY RESOLUTION EFFECTIVE JANUARY 1, 1959, CLOSED ALL THE
CITY'S RECREATIONAL PARKS, ATHLETIC FIELDS, SWIMMING FACILITIES, AND
PLAYGROUNDS, TO ALL PERSONS, WHITE AND BLACK, AND DID NOT PURPORT
OFFICIALLY TO REOPEN THEM UNTIL 1965.  THE CITY CONTINUED, HOWEVER, TO
OWN AND MAINTAIN THEM. 

/2/  ON APRIL 22, 1964, AFTER THE CASE HAD LAIN DORMANT FOR FOUR
YEARS, THE DISTRICT COURT ORDERED THE FILE CLOSED "WITHOUT PREJUDICE TO
ANY PARTY TO THIS LITIGATION PETITIONING THIS COURT FOR A
REINSTATEMENT."     /3/  PETITIONERS' MOTION, FILED AUGUST 7, 1970, WAS
STYLED AS A "MOTION TO CITE DEFENDANTS FOR CONTEMPT AND FOR RELIEF." 
ON OCTOBER 2, THE DISTRICT COURT GRANTED THE FURTHER MOTION OF THE
PETITIONERS THAT THE AUGUST 7 MOTION BE TREATED AS AN AMENDMENT TO THE
ORIGINAL COMPLAINT. 

/4/  THE RECORD IN THAT CASE REVEALED A DELIBERATE ATTEMPT TO THWART
THE DESEGREGATION ORDER OF TE DISTRICT COURT.  IN 1958, THE CITY AND
THE YMCA FORMED A COORDINATION COMMITTEE.  IT WAS AGREED THAT THE YMCA
WOULD NOT OFFER ANY PROGRAM THAT WOULD DUPLICATE OR CONFLICT WITH ONE
OFFERED BY THE CITY'S RECREATION DEPARTMENT.  THE YMCA CONDUCTED
FOOTBALL, BASKETBALL, AND TRACK PROGRAMS FOR ALL THE ELEMENTARY SCHOOL
CHILDREN OF THE CITY, BUT NOT FOR THE JUNIOR HIGH STUDENTS.  THE
RESPONSIBILITY FOR ADMINISTERING JUNIOR HIGH PROGRAMS WAS DELEGATED TO
THE RECREATION DEPARTMENT.  EACH ELEMENTARY SCHOOL SUPPOSEDLY WAS
ASSIGNED TO THE NEAREST YMCA BRANCH.  YET THE DISTRICT COURT FOUND THAT
"EVERY PREDOMINANTLY WHITE SCHOOL IN THE CITY IS ASSIGNED TO ONE OF THE
THREE ALL-WHITE BRANCHES EVEN THOUGH THE SCHOOL MAY BE CLOSER TO THE
CLEVELAND AVENUE (NEGRO) BRANCH.  EVERY PREDOMINANTLY NEGRO SCHOOL IS,
REGARDLESS OF ITS LOCATION, ASSIGNED TO THE CLEVELAND AVENUE BRANCH." 
316 F. SUPP. 899, 905.  THE YMCA ALSO GIVEN FREE USE OF THE CITY'S
PARKS, PLAYGROUNDS, AND LIGHTING EQUIPMENT FOR ITS VARIOUS ATHLETIC
PROGRAMS, AND FREE WATER FOR ITS SWIMMING POOLS.  THE CITY DID NOT
REOPEN ITS POOLS AFTER IT CLOSED THE PARKS IN 1959.  "IN 1957, THE YMCA
OPERATED ONE SMALL BRANCH IN DOWNTOWN MONTGOMERY WHICH HAD LESS THAN
1,000 MEMBERS.  BY 1960, TWO YEARS AFTER THE 'CO-ORDINATION COMMITTEE'
HAD BEEN CREATED, IT OPERATED FIVE BRANCHES WITH FIVE SWIMMING POOLS. 
TODAY THE YMCA OPERATES SIX BRANCHES WITH EIGHT SWIMMING POOLS AND HAS
APPROXIMATELY 18,000 MEMBERS."  ID., AT 908. 

/5/  THE SETTLEMENT AGREEMENT APPEARS TO HAVE BEEN AIMED AT
PROVIDING EQUAL RECREATIONAL FACILITIES FOR THE NEGRO POPULATION OF
MONTGOMERY.  IT SPECIFIED THE CONSTRUCTION OF NEW COMMUNITY CENTERS AND
A NEW RECREATION CENTER.  IMPROVEMENTS WERE TO BE MADE TO EXISTING
PREDOMINANTLY NEGRO FACILITIES.  THE CITY AGREED TO MAINTAIN ALL
COMMUNITY CENTERS "ON AN EQUAL BASIS AND TO THE SAME MANNER AND
EXTENT." 

THE AGREEMENT WAS APPROVED BY THE DISTRICT COURT ON JANUARY 29,
1971.  JURISDICTION, HOWEVER, WAS "SPECIFICALLY RETAINED," AND THE
DEFENDANTS WERE ORDERED TO FILE A WRITTEN REPORT EVERY SIX MONTHS. 

/6/  THE DISTRICT COURT'S DECRETAL PROVISIONS IN FULL TEXT, EXCEPT
FOR A PARAGRAPH RELATING TO THE TAXATION OF COSTS, ARE: 

"1.  THAT THE CITY OF MONTGOMERY, ALABAMA'S POLICY AND PRACTICE OF
PERMITTING THE USE OF CITY OWNED OR OPERATED RECREATIONAL FACILITIES BY
ANY PRIVATE SCHOOL, OR PRIVATE SCHOOL AFFILIATED GROUP, WHICH SCHOOL OR
GROUP IS RACIALLY SEGREGATED OR WHICH HAS A RACIALLY DISCRIMINATORY
ADMISSIONS POLICY BE AND THE SAME IS HEREBY DECLARED UNCONSTITUTIONAL. 

"2.  THAT SAID CITY OF MONTGOMERY, ALABAMA, ITS OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, AND THOSE ACTING IN CONCERT WITH IT, BE AND EACH
IS HEREBY ENJOINED FROM PERMITTING OR IN ANY WAY SANCTIONING THE USE OF
CITY OWNED OR OPERATED RECREATIONAL FACILITIES BY ANY PRIVATE SCHOOL,
OR PRIVATE SCHOOL AFFILIATED GROUP, IF SUCH SCHOOL OR GROUP IS RACIALLY
SEGREGATED OR IF IT HAS A RACIALLY DISCRIMINATORY ADMISSIONS POLICY. 

"3.  THAT SAID CITY OF MONTGOMERY, ALABAMA'S POLICY AND PRACTICE OF
PERMITTING THE USE OF CITY OWNED OR OPERATED RECREATIONAL FACILITIES BY
ANY PRIVATE GROUP, CLUB OR ORGANIZATION WHICH HAS A RACIALLY
DISCRIMINATORY ADMISSIONS POLICY BE AND THE SAME IS HEREBY DECLARED
UNCONSTITUTIONAL. 

"4.  THAT SAID CITY OF MONTGOMERY, ALABAMA, ITS OFFICERS, AGENTS,
SERVANTS, EMPLOYEES AND THOSE ACTING IN CONCERT WITH IT, BE AND EACH IS
HEREBY ENJOINED FROM PERMITTING OR IN ANY WAY SANCTIONING THE USE OF
CITY OWNED OR OPERATED RECREATIONAL FACILITIES BY ANY PRIVATE GROUP,
CLUB OR ORGANIZATION WHICH IS NOT AFFILIATED WITH A PRIVATE SCHOOL AND
WHICH HAS A RACIALLY DISCRIMINATORY ADMISSIONS POLICY."  337 F. SUPP.
22, 26. 

/7/  WE UNDERSTAND THE TERM "EXCLUSIVE USE" NOT TO INCLUDE THE
SITUATION WHERE ONLY PART OF A FACILITY MAY BE ALLOCATED TO OR USED BY
A GROUP, EVEN THOUGH THAT ALLOCATION OR USE RESULTS WIN THE PRO TANTO
EXCLUSION OF OTHERS.  FOR EXAMPLE, THE USE OF TWO OF A TOTAL OF 10
TENNIS COURTS BY A PRIVATE SCHOOL GROUP WOULD NOT CONSTITUTE AN
EXCLUSIVE USE; THE USE OF ALL 10 COURTS WOULD.  THIS IS NOT TO SAY THAT
THE USE OF TWO BY A PRIVATE SCHOOL GROUP WOULD BE CONSTITUTIONALLY
PERMISSIBLE.  SEE DISCUSSION, INFRA, AT 570 - 571, N. 10. 

/8/  PETITIONERS REQUESTED THAT THE DISTRICT COURT TAKE NOTICE IN
THIS CASE OF SMITH V. YOUNG MEN'S CHRISTIAN ASSN., 316 F. SUPP. 899
(1970), IN WHICH THE SAME DISTRICT JUDGE HAD PRESIDED.  THE TRIAL COURT
RULED FROM THE BENCH THAT IT WOULD TAKE JUDICIAL NOTICE "OF THE
EVIDENCE THAT WAS PRESENTED IN THE Y.M.C.A. CASE."  EXCERPTED
TRANSCRIPT, TESTIMONY OF WILLIAM CHANDLER, NOV. 20, 1970, P. 7. 

/9/  PETITIONERS ALSO REQUESTED THAT THE DISTRICT COURT IN THIS CASE
TAKE NOTICE OF CARR V. MONTGOMERY COUNTY BOARD OF EDUCATION, SUPRA.
THE TRAIL COURT IN ITS REPORTED OPINION, 337 F. SUPP., AT 24, REFERRED
TO THE DUTY OF THE STATE'S SCHOOL BOARDS TO DESEGREGATE. 

/10/  THE BRETHREN IN CONCURRENCE STATE THAT THEY WOULD SUSTAIN THE
DISTRICT COURT INSOFAR AS ANY SCHOOL-SPONSORED OR SCHOOL-DIRECTED USES
OF THE CITY RECREATIONAL FACILITIES ENABLE PRIVATE SEGREGATED SCHOOLS
TO DUPLICATE PUBLIC SCHOOL OPERATIONS AT PUBLIC EXPENSE.  IT HARDLY
BEARS REPETITION THAT THE DISTRICT COURT'S ORIGINAL INJUNCTION SWEPT
BEYOND THESE LIMITS WITHOUT THE FACTFINDING REQUIRED FOR THE PRUDENT
USE OF WHAT WOULD OTHERWISE BE THE RAW EXERCISE OF A COURT'S EQUITABLE
POWER. 

IT IS BY NO MEANS APPARENT, AS OUR BROTHER BRENNAN CORRECTLY NOTES,
WHICH USES OF CITY FACILITIES IN COMMON WITH OTHERS WOULD HAVE "A
SIGNIFICANT TENDENCY TO FACILITATE, REINFORCE, AND SUPPORT PRIVATE
DISCRIMINATION."  NORWOOD V. HARRISON, 413 U.S. 455, 466 (1973). 
MOREOVER, WE ARE NOT PREPARED, AT THIS JUNCTURE AND ON THIS RECORD, TO
ASSUME THE STANDING OF THESE PLAINTIFFS TO CLAIM RELIEF AGAINST CERTAIN
NONEXCLUSIVE USES BY PRIVATE SCHOOL GROUPS.  THE PLAINTIFFS IN NORWOOD
WERE PARTIES TO A SCHOOL DESEGREGATION ORDER ADN THE RELIEF THEY SOUGHT
WAS DIRECTLY RELATED TO THE CONCRETE INJURY THEY SUFFERED.  HERE, THE
PLAINTIFFS WERE PARTIES TO AN ACTION DESEGREGATING THE CITY PARKS AND
RECREATIONAL FACILITIES.  WITHOUT A PROPERLY DEVELOPED RECORD, IT IS
NOT CLEAR THAT EVERY NONEXCLUSIVE USE OF CITY FACILITIES BY SCHOOL
GROUPS, UNLIKE THEIR EXCLUSIVE USE, WOULD RESULT IN COGNIZABLE INJURY
TO THESE PLAINTIFFS.  THE DISTRICT COURT DOES NOT HAVE CARTE BLANCHE
AUTHORITY TO ADMINISTER CITY FACILITIES SIMPLY BECAUSE THERE IS PAST OR
PRESENT DISCRIMINATION.  THE USUAL PRUDENTIAL TENETS LIMITING THE
EXERCISE OF JUDICIAL POWER MUST BE OBSERVED IN THIS CASE AS IN ANY
OTHER. 

MR. JUSTICE MARSHALL, CONCURRING IN PART AND DISSENTING IN PART. 

ALTHOUGH I AM IN GENERAL AGREEMENT WITH THE VIEWS EXPRESSED IN MY
BROTHER WHITE'S OPINION, I WISH TO ADDRESS CERTAIN OTHER CONSIDERATIONS
WHICH I BELIEVE SHOULD GOVERN APPELLATE REVIEW OF THE ORDER ENTERED BY
THE DISTRICT COURT IN THIS CASE.  THAT COURT, WHICH HAS AN
UNFORTUNATELY LONGSTANDING AND BY NOW INTIMATE FAMILIARITY WITH THE
PROBLEMS PRESENTED IN THIS CASE, ISSUED THE SUPPLEMENTAL RELIEF AT
ISSUE HERE IN RESPONSE TO A MOTION BY PETITIONERS BRINGING TO ITS
ATTENTION THE PRACTICE OF THE CITY OF MONTGOMERY OF ALLOWING PRIVATE
SCHOOLS AND CLUBS WITH RACIALLY DISCRIMINATORY ADMISSIONS POLICIES OR
WITH SEGREGATED MEMBERSHIPS TO USE FOOTBALL FACILITIES MAINTAINED AT
CITY EXPENSE.  FOR ALL THAT APPEARS IN THE RECORD, THIS PRACTICE, AND
TE RELATED PRACTICE OF ALLOWING PRIVATE SEGREGATED SCHOOLS AND CLUBS TO
USE BASEBALL FIELDS, BASKETBALL COURTS, AND ATHLETIC EQUIPMENT
MAINTAINED AND PURCHASED AT CITY EXPENSE, WERE THE ONLY PROBLEMS BEFORE
THE DISTRICT COURT AND THE ONLY PROBLEMS INTENDED TO BE CURED BY ITS
SUPPLEMENTAL ORDER. 

BOTH THE COURT OF APPEALS AND THIS COURT, RATHER THAN LIMITING THEIR
REVIEW OF THE ORDER IN CONFORMITY WITH ITS INTENDED SCOPE, HAVE SOUGHT
TO PROJECT THE ORDER TO A WIDE VARIETY OF PROBLEMS NOT BEFORE THE
DISTRICT COURT--INCLUDING SO-CALLED NONEXCLUSIVE ACCESS BY PRIVATE
SCHOOL GROUPS OR NONSCHOOL ORGANIZATIONS TO ZOOS, MUSEUMS, PARKS,
NATURE WALKS, AND OTHER SIMILAR MUNICIPAL FACILITIES--AND TO REVIEW THE
ORDER AS SO PROJECTED. 

BY RENDERING AN ADVISORY OPINION ON MATTERS NEVER PRESENTED TO THE
DISTRICT COURT, THE COURT OF APPEALS AND THIS COURT HAVE ATTEMPTED TO
SOLVE IN THE ABSTRACT PROBLEMS WHICH, IN MY VIEW, SHOULD MORE
APPROPRIATELY BE ENTRUSTED IN LARGE MEASURE TO THE SOUND DISCRETION OF
THE DISTRICT COURT JUDGE WHO HAS LIVED WITH THIS CASE FOR SO MANY YEARS
AND WHO HAS A MUCH BETTER APPRECIATION BOTH OF THE EXTENT TO WHICH
THESE OTHER MATTERS ARE ACTUAL PROBLEMS IN THE CITY OF MONTGOMERY AND
OF THE NEED FOR INJUNCTIVE RELIEF TO RESOLVE THESE PROBLEMS TO THE
EXTENT THEY EXIST. 

SINCE I FIND THE DISTRICT COURT'S ORDER A PERMISSIBLE AND
APPROPRIATE REMEDY FOR THE INSTANCES OF UNCONSTUTITIONAL STATE ACTION
BROUGHT TO ITS ATTENTION, I WOULD SUSTAIN AND REINSTATE ITS ORDER IN
ITS ENTIRETY. 

MR. JUSTICE BRENNAN, CONCURRING IN THE JUDGMENT. 

THE COURT TODAY AFFIRMS THE COURT OF APPEALS' JUDGMENT INSOFAR AS IT
AFFIRMED PARAGRAPHS 1 AND 2 OF THE DISTRICT COURT'S ORDER, ANTE, AT 563
- 564, N. 6, AS APPLIED TO ENJOIN RESPONDENTS FROM PERMITTING PRIVATE
SEGREGATED SCHOOL GROUPS TO MAKE "EXCLUSIVE USE" OF MONTGOMERY'S
RECREATIONAL FACILITIES.  UNLIKE THE COURT, I DO NOT THINK THAT REMAND
IS REQUIRED FOR A DETERMINATION WHETHER CERTAIN "NONEXCLUSIVE USES" BY
SEGREGATED SCHOOL GROUPS SHOULD ALSO BE PROSCRIBED, FOR I WOULD ALSO
SUSTAIN PARAGRAPHS 1 AND 2 INSOFAR AS THEY ENJOIN ANY SCHOOL-SPONSORED
OR SCHOOL-DIRECTED USES OF THE CITY RECREATIONAL FACILITIES THAT ENABLE
PRIVATE SEGREGATED SCHOOLS TO DUPLICATE PUBLIC SCHOOL OPERATIONS AT
PUBLIC EXPENSE. 

NORWOOD V. HARRISON, 413 U.S. 455 (1973), STRUCK DOWN A STATE
PROGRAM WHICH LOANED TEXTBOOKS TO STUDENTS WITHOUT REGARD TO WHETHER
THE STUDENTS ATTENDED PRIVATE SCHOOLS WITH RACIALLY DISCRIMINATORY
POLICIES.  FINDING THAT FREE TEXTBOOKS, LIKE TUITION GRANTS TO PRIVATE
SCHOOL STUDENTS, WERE A "FORM OF FINANCIAL ASSISTANCE INURING TO THE
BENEFIT OF THE PRIVATE SCHOOLS THEMSELVES," ID., AT 464, NORWOOD HELD
THAT THE STATE COULD NOT, CONSISTENT WITH THE EQUAL PROTECTION CLAUSE,
GRANT AID THAT HAD "A SIGNIFICANT TENDENCY TO FACILITATE, REINFORCE,
AND SUPPORT PRIVATE DISCRIMINATION."  ID., AT 466.  THE REASONING OF
NORWOOD COMPELS THE CONCLUSION THAT MONTGOMERY MUST BE ENJOINED FROM
PROVIDING ANY ASSISTANCE WHICH FINANCIALLY BENEFITS MONTGOMERY'S
PRIVATE SEGREGATED SCHOOLS, EXCEPT, OF COURSE, "SUCH NECESSITIES OF
LIFE AS ELECTRICITY, WATER, AND POLICE AND FIRE PROTECTION," MOOSE
LODGE NO. 107 V. IRVIS, 407 U.S. 163, 173 (1972).  THE
UNCONSTITUTIONALITY IS THUS OBVIOUS OF SUCH "NONEXCLUSIVE USES" OF
MUNICIPAL RECREATIONAL FACILITIES AS THE USE OF A PORTION OF A PARK FOR
A SEGREGATED SCHOOL'S GYM CLASSES OR ORGANIZED ATHLETIC CONTESTS.  BY
MAKING ITS MUNICIPAL FACILITIES AVAILABLE TO PRIVATE SEGREGATED SCHOOLS
FOR SUCH ACTIVITIES, MONTGOMERY UNCONSTITUTIONALLY SUBSIDIZES ITS
PRIVATE SEGREGATED SCHOOLS BY RELIEVING THEM OF THE EXPENSE OF
MAINTAINING THEIR OWN FACILITIES. 

WHETHER IT IS NECESSARY TO GO EVEN FURTHER AND ENJOIN ALL SCHOOL
SPONSORED AND SCHOOL-DIRECTED NONEXCLUSIVE USES OF MUNICIPAL
RECREATIONAL FACILITIES--AS WOULD MY BROTHERS WHITE AND DOUGLAS--IS A
QUESTION I WOULD HAVE THE DISTRICT JUDGE DECIDE ON REMAND.  PRIVATE
SEGREGATED SCHOOLS ARE NOT LIKELY TO MAINTAIN THEIR OWN ZOOS, MUSEUMS,
OR NATURE WALKS.  CONSEQUENTLY, PERMITTING SEGREGATED SCHOOLS TO TAKE
THEIR STUDENTS ON FIELD TRIPS TO CITY FACILITIES OF THAT KIND WOULD NOT
RESULT IN A DIRECT FINANCIAL BENEFIT TO THE SCHOOLS THEMSELVES.  AN
INJUNCTION AGAINST USE BY SEGREGATED SCHOOLS OF SUCH CITY FACILITIES
WOULD BE APPROPRIATE, IN MY VIEW, ONLY IF THE DISTRICT COURT SHOULD
FIND THAT THE RELIEF IS NECESSARY TO INSURE FULL EFFECTUATION OF THE
MONTGOMERY DESEGREGATION DECREES. 

I AGREE WITH THE COURT'S VACATION OF THE COURT OF APPEALS'  JUDGMENT
REVERSING PARAGRAPHS 3 AND 4 OF THE DISTRICT COURT'S ORDER RELATING TO
SEGREGATED NONSCHOOL GROUPS, AND WITH THE DIRECTION TO THE COURT OF
APPEALS TO ENTER A NEW JUDGMENT REMANDING THE CASE TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS AS TO NONSCHOOL GROUPS.  A REMAND IS
REQUIRED, IN MY VIEW, BECAUSE FIRST THE DISTRICT COURT MUST CONSIDER
WHETHER, FOR PURPOSES OF RELIEF SUPPLEMENTARY TO THE 1959 PARKS
DESEGREGATION DECREE, A DISTINCTION BETWEEN SIMPLY ALL-WHITE GROUPS AND
ALL-WHITE GROUPS WITH A SEGREGATED ADMISSIONS POLICY IS PROPER, ANTE,
AT 563 - 564, N. 6, AND SECOND, IF THAT DISTINCTION IS FOUND
MEANINGFUL, THE DISTRICT COURT MUST CLARIFY WHAT EVIDENCE WAS RELIED
UPON TO CONCLUDE THAT PRIVATE ORGANIZATIONS WITH RACIALLY
DISCRIMINATORY ADMISSIONS POLICIES ARE IN FACT USING MUNICIPAL
FACILITIES.  /1/ 

BUT, SHOULD THE DISTRICT COURT ON REMAND FIND ADEQUATE EVIDENCE OF
USE OF THE CITY'S RECREATIONAL FACILITIES BY PRIVATE NONSCHOOL GROUPS
WITH SEGREGATED ADMISSIONS POLICIES, OR FIND THAT THE DISTINCTION
BETWEEN SUCH GROUPS AND SIMPLY ALL-WHITE GROUPS IS IMPROPER, I BELIEVE
THAT THE DISTRICT COURT MUST ENJOIN "EXCLUSIVE USE" OF RECREATIONAL
FACILITIES BY SUCH GROUPS.  THE COMPLETE RECORD COMPILED IN THIS
ESTABLISHES BEYOND QUESTION THAT, EVEN AFTER THE PARKS DESEGREGATION
ORDER OF SEPTEMBER 9, 1959, RESPONDENTS CONTINUED FOR OVER A DECADE TO
ENGAGE IN AN UNCONSTITUTIONAL DE JURE POLICY OF DELIBERATE SEGREGATION
OF THE CITY'S RECREATIONAL FACILITIES.  THE COURT'S REASONING IN
AFFIRMING THE COURT OF APPEALS' INJUNCTION AGAINST "EXCLUSIVE USE" OF
MUNICIPAL RECREATIONAL FACILITIES BY PRIVATE SEGREGATED SCHOOL GROUPS
DEMONSTRATES THIS AND BEARS REPETITION:       (THE CITY'S POLICY OF
ALLOCATING FACILITIES TO SEGREGATED PRIVATE SCHOOLS, IN THE CONTEXT OF

  THE 1959 PARKS DESEGREGATION ORDER AND SUBSEQUENT HISTORY,
CREATED, IN EFFECT, 'ENCLAVES OF

  SEGREGATION' AND DEPRIVED PETITIONERS OF EQUAL ACCESS TO PARKS
AND RECREATIONAL

  FACILITIES.  THE CITY WAS UNDER AN AFFIRMATIVE CONSTITUTIONAL
DUTY TO ELIMINATE EVERY 'CUSTOM,

  PRACTICE, POLICY OR USAGE' REFLECTING AN 'IMPERMISSIBLE OBEISANCE
TO THE NOW THOROUGHLY

  DISCREDITED DOCTRINE OF "SEPARATE BUT EQUAL."'  . . . THIS
OBVIOUSLY MEANT THAT DISCRIMINATORY       PRACTICES IN MONTGOMERY PARKS
AND RECREATIONAL FACILITIES WERE TO BE ELIMINATED 'ROOT AND

  BRANCH,' TO USE THE PHRASE EMPLOYED IN GREEN V. COUNTY SCHOOL
BOARD OF NEW KENT COUNTY, 391

  U.S. 430, 438 (1968)."  ANTE, AT 566 - 567. 

SURELY, RESPONDENTS' FAILURE TO EXTIRPATE "ENCLAVES OF SEGREGATION"
CREATED BY "ESCLUSIVE USE" OF CITY RECREATIONAL FACILITIES BY PRIVATE
NONSCHOOL GROUPS IS NO LESS A VIOLATION OF THE CITY'S AFFIRMATIVE DUTY
TO DESEGREGATE THE PARKS THAN ITS PROVED FAILURE TO ELIMINATE
"ENCLAVES"  CREATED BY THE "EXCLUSIVE USE" OF SUCH FACILITIES BY SCHOOL
GROUPS.  THUS, UNLIKE THE COURT, I SEE NO REASON FOR DEFERRING AN
IMMEDIATE EXPRESSION ON THE SIGNIFICANCE OF THE CITY'S INVOLVEMENT IN
THE PRIVATE DISCRIMINATION OF THE NONSCHOOL GROUPS, SEE ANTE, AT 574,
PENDING A MORE FULLY DEVELOPED FACTUAL RECORD.  THE JUSTIFICATIONS FOR
FINDING THAT "EXCLUSIVE USE" BY SCHOOL GROUPS VIOLATED THE 1959 PARKS
DESEGREGATION ORDER PLAINLY ALSO REQUIRE THAT, IF PRIVATE NONSCHOOL
GROUPS ARE IN FACT MAKING "EXCLUSIVE USE" OF MUNICIPAL FACILITIES,
THESE USES, TOO, BE FOUND TO VIOLATE THE 1959 DECREE.  IN THAT
CIRCUMSTANCE, THE UNCONSTITUTIONAL "STATE ACTION" OF THE RESPONDENTS
CONSISTS OF THEIR CONTINUING RACIALLY DISCRIMINATORY POLICIES AND
PRACTICES THAT FRUSTRATE AND IMPEDE THE DISMANTLEMENT OF MONTGOMERY'S
DE JURE SEGREGATED PARKS. 

/1/  MY EXAMINATION OF THE RECORD REVEALS:  ON DECEMBER 1, 1971, THE
PARTIES HAD FILED AN "AGREEMENT FOR SUBMISSION OF CASE," RECITING THAT
THEY AGREED "FOR THE CASE TO BE SUBMITTED TO THE COURT ON THE PLEADINGS
FILED BY THE PARTIES, THE ANSWERS TO INTERROGATORIES HERETOFORE FILED
BY THE DEFENDANTS, AND UPON THE FACT STIPULATION AS ATTACHED HERETO." 
THE ONLY INTERROGATORIES PROPOUNDED IN CONNECTION WITH THE "MOTION FOR
FURTHER RELIEF," WITH WHICH THIS ACTION WAS COMMENCED, WERE PROPOUNDED
TO RESPONDENT HENRY M. ANDREWS, DIRECTOR OF THE PARKS AND RECREATION
DEPARTMENT, AND NEITHER HIS ANSWERS NOR ANYTHING CONTAINED IN THE FACT
STIPULATION, ADDRESSES A PRACTICE OF RESPONDENTS WITH RESPECT TO THE
USE OF FACILITIES BY NONSCHOOL PRIVATE CLUBS AND GROUPS.  THERE IS,
HOWEVER, TESTIMONY ON THAT SUBJECT IN THE DEPOSITIONS OF THE SEVERAL
RESPONDENTS TAKEN IN AN EARLIER PROCEEDING ON THE AMENDED COMPLAINT
THAT HAD LED TO A SETTLEMENT AGREEMENT.  TESTIMONY AS TO THE USE OF
FACILITIES BY AN ALLEGEDLY PRIVATE SEGREGATED CITYWIDE DIXIE YOUTH
BASEBALL LEAGUE APPEARS IN THE DEPOSITIONS OF JOSEPH E. MARSHALL AND
DURWOOD LYNN BOZEMAN, THE CITY'S ATHLETIC DIRECTOR.  MR. MARSHALL'S
DEPOSITION STATES THAT, WHILE THE DIXIE YOUTH TEAMS AT ONE TIME WERE
OFFICIALLY SEGREGATED, THEY REMOVED RACIAL RESTRICTIONS A NUMBER OF
YEARS AGO "REALIZING THAT MANY OF (THE) LEAGUES USED MUNICIPAL
FACILITIES" AND THAT INVITATIONS TO JOIN THE LEAGUES ARE ISSUED TO ALL
CHILDREN IN THE PUBLIC SCHOOLS, THOUGH ALL OF THE DIRECTORS OF THE
LEAGUES ARE WHITE.  MR. BOZEMAN'S DEPOSITION TESTIFIES THAT THE CITY
SUPPLIES THESE LEAGUES WITH PLAYING FACILITIES, PAYS FOR LIGHTING, AND
GIVES EACH OF THEM A DOZEN BALLS, CHEST PROTECTORS, LEG GUARDS, MASKS,
MITTS, AND EIGHT BATS.  MR. BOZEMAN'S DEPOSITION ALSO COVERS THE
OPERATIONS OF THE PRIVATE, ALLEGEDLY PREDOMINANTLY WHITE, BABE RUTH
LEAGUE AND A PUBLIC NEGRO BABE RUTH LEAGUE, AND DISCUSSES THE
OPERATIONS OF ALLEGEDLY SEGREGATED CHURCH SOFTBALL LEAGUES. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING
IN THE JUDGMENT. 

I CONCUR IN THE COURT'S JUDGMENT EXCEPT THAT I WOULD SUSTAIN THE
DISTRICT COURT NOT ONLY TO THE EXTENT THE COURT OF APPEALS AFFIRMED ITS
JUDGMENT BUT ALSO INSOFAR AS IT WOULD BAR THE USE OF CITY-OWNED
RECREATION FACILITIES BY STUDENTS FROM SEGREGATED SCHOOLS FOR EVENTS OR
OCCASIONS THAT ARE PART OF THE SCHOOL CURRICULUM OR ORGANIZED AND
ARRANGED BY THE SCHOOL AS PART OF ITS OWN PROGRAM.  I SEE NO DIFFERENCE
OF SUBSTANCE BETWEEN THIS TYPE OF USE AND THE EXCLUSIVE USE THAT THE
MAJORITY AGREES MAY NOT BE PERMITTED CONSISTENT WITH THE EQUAL
PROTECTION CLAUSE. 

IT MAY BE USEFUL ALSO TO EMPHASIZE THAT THERE IS VERY PLAINLY STATE
ACTION OF SOME SORT INVOLVED IN THE LEASING, RENTAL, OR EXTENDING TH
USE OF SCARCE CITY-OWNED RECREATION FACILITIES TO PRIVATE SCHOOLS OR
OTHER PRIVATE GROUPS.  THE FACILITIES BELONG TO THE CITY, AN ARM OF THE
STATE; THE DECISION TO LEASE OR OTHERWISE PERMIT THE USE OF THE
FACILITIES IS DELIBERATELY MADE BY THE CITY; AND IT IS FAIR TO ASSUME
THAT THOSE WHO ENTER INTO THESE TRANSACTIONS ON BEHALF OF THE CITY KNOW
THE NATURE OF THE USE AND THE CHARACTER OF THE GROUP TO WHOM USE IS
BEING EXTENDED.  FOR FOURTEENTH AMENDMENT PURPOSES, THE QUESTION IS NOT
WHETHER THERE IS STATE ACTION, BUT WHETHER THE CONCEDED ACTION BY THE
CITY, AND HENCE BY THE STATE, IS SUCH THAT THE STATE MUST BE DEEMED TO
HAVE DENIED THE EQUAL PROTECTION OF THE LAWS.  IN OTHER WORDS, BY
PERMITTING A SEGREGATED SCHOOL OR GROUP TO USE CITY-OWNED FACILITIES,
HAS THE STATE FURNISHED SUCH AID TO THE GROUP'S SEGREGATED POLICIES OR
BECOME SO INVOLVED IN THEM THAT THE STATE ITSELF MAY FAIRLY BE SAID TO
HAVE DENIED EQUAL PROTECTION?  UNDER BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715 (1961), IT IS PERFECTLY CLEAR THAT TO VIOLATE
THE EQUAL PROTECTION CLAUSE THE STATE ITSELF NEED NOT MAKE, ADVISE, OR
AUTHORIZE THE PRIVATE DECISION TO DISCRIMINATE THAT INVOLVES THE STATE
IN THE PRACTICE OF SEGREGATION OR WOULD APPEAR TO DO SO IN THE MINDS OF
ORDINARY CITIZENS. 

JOSEPH J. LEVIN, JR., ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WAS MORRIS S. DEES, JR. 

JOSEPH D. PHELPS ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE DRAYTON N. HAMILTON AND WALTER J. KNABE. 
..END :














CARDWELL V. LEWIS, 417 U.S. 583 


       CARDWELL, WARDEN V. LEWIS

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 72 - 1603.  ARGUED MARCH 18, 1974 --DECIDED JUNE 17,

           1974.; (476 F. 2D 467, REVERSED.) 


    ON JULY 24, 1967, LAW ENFORCEMENT OFFICERS INTERVIEWED

  RESPONDENT IN CONNECTION WITH A MURDER THAT HAD OCCURRED FIVE

  DAYS BEFORE AND VIEWED HIS AUTOMOBILE, WHICH WAS THOUGHT TO HAVE

  BEEN USED IN THE COMMISSION OF THE CRIME.  ON OCTOBER 10, IN

  RESPONSE TO A PREVIOUS REQUEST, RESPONDENT APPEARED AT 10 A.M.

  FOR QUESTIONING AT THE OFFICE OF THE INVESTIGATING AUTHORITIES,

  HAVING LEFT HIS CAR AT A NEARBY PUBLIC COMMERICIAL PARKING LOT. 

  THOUGH THE POLICE HAD SECURED A WARRANT FOR RESPONDENT'S ARREST

  AT 8 A.M., RESPONDENT WAS NOT ARRESTED UNTIL LATE IN THE

  AFTERNOON, AFTER WHICH HIS CAR WAS TOWED TO A POLICE IMPOUNDMENT

  LOT, WHERE A WARRANTLESS EXAMINATION THE NEXT DAY OF THE OUTSIDE

  OF THE CAR REVEALED THAT A TIRE MATCHED THE CAST OF A TIRE

  IMPRESSION MADE AT THE CRIME SCENE AND THAT PAINT SAMPLES TAKEN

  FROM RESPONDENT'S CAR WERE NOT DIFFERENT FROM FOREIGN PAINT ON

  THE FENDER OF THE VICTIM'S CAR.  RESPONDENT WAS TRIED AND

  CONVICTED OF THE MURDER, AND HIS CONVICTION WAS AFFIRMED ON

  APPEAL.  IN A SUBSEQUENT HABEAS CORPUS PROCEEDING THE DISTRICT

  COURT CONCLUDED THAT THE SEIZURE AND EXAMINATION OF RESPONDENT'S

  CAR VIOLATED THE FOURTH AND FOURTEENTH AMENDMENTS AND THAT THE

EVIDENCE OBTAINED THEREFROM SHOULD HAVE BEEN EXCLUDED AT THE

  TRIAL.  THE COURT OF APPEALS AFFIRMED, CONCLUDING THAT THE

  SCRAPING OF PAINT FROM THE CAR'S EXTERIOR WAS A SEARCH WITHIN THE

  MEANING OF THE FOURTH AMENDMENT; THAT THE SEARCH, WHICH WAS NOT

  INCIDENT TO RESPONDENT'S ARREST, WAS UNCONSENTED; AND THAT THE

  CAR'S SEIZURE COULD NOT BE JUSTIFIED ON THE GROUND THAT THE CAR

  WAS AN INSTRUMENTALITY OF THE CRIME IN PLAIN VIEW.  HELD:  THE

  JUDGMENT IS REVERSED.  PP. 585 - 596. 

     MR. JUSTICE BLACKMUN, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE

  WHITE, AND MR. JUSTICE REHNQUIST, CONCLUDED THAT: 

     1.  THE EXAMINATION OF THE EXTERIOR OF RESPONDENT'S AUTOMOBILE

  UPON PROBABLE CAUSE WAS REASONABLE AND INVADED NO RIGHT OF

  PRIVACY THAT THE REQUIREMENT OF A SEARCH WARRANT IS MEANT TO

  PROTECT.  PP. 588 - 592. 

     (A) THE PRIMARY OBJECT OF THE FOURTH AMENDMENT IS THE

  PROTECTION OF PRIVACY.  WARDEN V. HAYDEN, 387 U.S. 294, 305 -

  306.  P. 589. 

     (B) GENERALLY, LESS STRINGENT WARRANT REQUIREMENTS ARE APPLIED

TO VEHICLES THAN TO HOMES OR OFFICES, CARROLL V. UNITED STATES,

  267 U.S. 132; CHAMBERS V. MARONEY, 399 U.S. 42, AND THE SEARCH OF

  A VEHICLE IS LESS INTRUSIVE AND IMPLICATES A LESSER EXPECTATION

  OF PRIVACY.  PP. 589 - 591. 

(C) THE "SEARCH" IN THIS CASE, CONCEDEDLY MADE ON THE BASIS OF

  PROBABLE CAUSE, INFRINGED NO EXPECTATION OF PRIVACY.  PP. 591 -

  592. 

     2.  UNDER THE CIRCUMSTANCES OF THIS CASE THE SEIZURE BY

  IMPOUNDING THE CAR WAS NOT UNREASONABLE.  PP. 592 - 596. 

     (A) THE VEHICLE WAS SEIZED FROM A PUBLIC PLACE, WHERE ACCESS

  WAS NOT MEANINGFULLY RESTRICTED.  CHAMBERS V. MARONEY, SUPRA,

  FOLLOWED; COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443,

  DISTINGUISHED.  PP. 593 - 595. 

     (B) EXIGENT CIRCUMSTANCES JUSTIFYING A WARRANTLESS SEARCH OF A

  VEHICLE ARE NOT LIMITED TO SITUATIONS WHERE PROBABLE CAUSE IS

  UNFORESEEABLE AND ARISES ONLY AT THE TIME OF ARREST.  CF.

  CHAMBERS, SUPRA, AT 50 - 51.  PP. 595 - 596. 

     MR. JUSTICE POWELL, BEING OF THE VIEW THAT THE INQUIRY OF A

  FEDERAL COURT ON HABEAS CORPUS REVIEW OF A STATE PRISONER'S

  FOURTH AMENDMENT CLAIM SHOULD BE CONFINED SOLELY TO THE QUESTION

  WHETHER THE DEFENDANT HAD AN OPPORTUNITY IN THE STATE COURTS TO

  RAISE THAT CLAIM AND HAVE IT ADJUDICATED FAIRLY, WOULD REVERSE

THE JUDGMENT OF THE COURT OF APPEALS SINCE RESPONDENT DOES NOT

  CONTEND THAT HE WAS DENIED THAT OPPORTUNITY.  SEE SCHNECKLOTH V.

  BUSTAMENTE, 412 U.S. 218, 250 (POWELL, J., CONCURRING).  P. 596. 

BLACKMUN, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION, IN WHICH BURGER, C.J., AND WHITE AND REHNQUIST, JJ., JOINED. 
POWELL, J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 596. 
STEWART, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND
MARSHALL, JJ., JOINED, POST, P. 596. 

MR. JUSTICE BLACKMUN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE WHITE, AND MR. JUSTICE
REHNQUIST JOIN. 

THIS CASE PRESENTS THE ISSUE OF THE LEGALITY, UNDER THE FOURTH AND
FOURTEENTH AMENDMENTS, OF A WARRANTLESS SEIZURE OF AN AUTOMOBILE AND
THE EXAMINATION OF ITS EXTERIOR AT A POLICE IMPOUNDMENT AREA AFTER THE
CAR HAD BEEN REMOVED FROM A PUBLIC PARKING LOT. 

EVIDENCE OBTAINED UPON THIS EXAMINATION WAS INTRODUCED AT THE
RESPONDENT'S STATE COURT TRIAL FOR FIRST-DEGREE MURDER.  HE WAS
CONVICTED.  THE FEDERAL DISTRICT COURT, ON A HABEAS CORPUS APPLICATION,
RULED THAT THE EXAMINATION WAS A SEARCH VIOLATIVE OF THE FOURTH AND
FOURTEENTH AMENDMENTS.  354 F. SUPP. 26 (SD OHIO 1972).  THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED.  476 F.2D 467
(1973).  WE GRANTED CERTIORARI, 414 U.S. 1062 (1973), AND NOW CONCLUDE
THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, THERE WAS NO VIOLATION OF
THE PROTECTION AFFORDED BY THE AMENDMENTS. 

        I 

IN 1968 RESPONDENT ARTHUR BEN LEWIS, JR., WAS TRIED AND CONVICTED BY
A JURY IN AN OHIO STATE COURT FOR THE FIRST-DEGREE MURDER OF PAUL
RADCLIFFE.  ON APPEAL, THE SUPREME COURT OF OHIO AFFIRMED THE JUDGMENT
OF CONVICTION.  STATE V. LEWIS, 22 OHIO ST. 2D 125, 258 N.E. 2D 445
(1970).  THIS COURT DENIED REVIEW.  LEWIS V. OHIO, 400 U.S. 959
(1970). 

ON RESPONDENT'S FEDERAL HABEAS APPLICATION, THE DISTRICT COURT, FROM
THE RECORD AND AFTER AN EVIDENTIARY HEARING, ADDUCED THE FOLLOWING
FACTS: 

ON THE AFTERNOON OF JULY 19, 1967, RADCLIFFE'S BODY WAS FOUND NEAR
HIS CAR ON THE BANKS OF THE OLENTANGY RIVER IN DELAWARE COUNTY , OHIO. 
THE CAR HAD GONE OVER THE EMBANKMENT AND HAD COME TO REST IN BRUSH. 
RADCLIFFE HAD DIED FROM SHOTGUN WOUNDS.  CASTS WERE MADE OF TIRE TRACKS
AT THE SCENE, AND FOREIGN PAINT SCRAPINGS WERE REMOVED FROM THE RIGHT
REAR FENDER OF RADCLIFFE'S AUTOMOBILE. 

WITHIN FIVE DAYS OF RADCLIFFE'S DEATH, THE INVESTIGATION BEGAN TO
FOCUS UPON RESPONDENT LEWIS.  IT WAS LEARNED THAT LEWIS KNEW
RADCLIFFE.  LEWIS HAD BEEN NEGOTIATING THE SALE OF A BUSINESS AND HAD
EXECUTED A CONTRACT OF SALE.  THE PURCHASER, JACK SMITH, EMPLOYED
RADCLIFFE, AN ACCOUNTANT, TO EXAMINE LEWIS' BOOKS.  POLICE WENT TO
LEWIS' PLACE OF BUSINESS TO QUESTION HIM AND THERE OBSERVED THE MODEL
AND COLOR OF HIS CAR IN THE THOUGHT THAT IT MIGHT HAVE BEEN USED TO
PUSH THE RADCLIFFE VEHICLE OVER THE EMBANKMENT.  NOT UNTIL SEVERAL
MONTHS LATER, HOWEVER, IN LATE SEPTEMBER, WAS LEWIS AGAIN QUESTIONED. 
ON OCTOBER 9, HE WAS ASKED TO APPEAR THE NEXT MORNING AT THE OFFICE OF
THE DIVISION OF CRIMINAL ACTIVITIES IN COLUMBUS FOR FURTHER
INTERROGATION. 

ON OCTOBER 10, AT 8 A.M., A WARRANT FOR RESPONDENT'S ARREST WAS
OBTAINED.  /1/  THE DISTRICT COURT FOUND THAT AT THIS TIME, IN ADDITION
TO PROBABLE CAUSE FOR THE ARREST, THE POLICE ALSO HAD PROBABLE CAUSE TO
BELIEVE THAT LEWIS'  CAR WAS USED IN THE COMMISSION OF THE CRIME.  AN
AUTOMOBILE SIMILAR TO HIS HAD BEEN OBSERVED LEAVING THE SCENE; THE
COLOR OF HIS VEHICLE WAS SIMILAR TO THE COLOR OF THE PAINT SCRAPINGS
FROM THE VICTIM'S CAR; IN A TELEPHONE CALL TO MRS. SMITH, MADE BY A
PERSON WHO SAID HE WAS RADCLIFFE, BUT PROVED NOT TO BE, /2/  THE CALLER
MADE STATEMENTS THAT, IF TRUE, WOULD BENEFIT ONLY LEWIS; HE HAD HAD
BODY REPAIR WORK DONE ON THE GRILLE, HOOD, RIGHT FRONT FENDER, AND
OTHER PARTS OF HIS CAR ON THE DAY FOLLOWING THE CRIME; AND THE VICTIM'S
DESK CALENDAR FOR THE DAY OF HIS DEATH SHOWED THE NOTATION, "CALL BEN
LEWIS."  /3/ 

RESPONDENT LEWIS COMPLIED WITH THE REQUEST TO APPEAR.  HE DROVE HIS
CAR TO THE ACTIVITIES OFFICE, PLACED IT IN A PUBLIC COMMERCIAL PARKING
LOT A HALF BLOCK AWAY, AND ARRIVED SHORTLY AFTER 10 A.M.  ALTHOUGH THE
POLICE WERE IN POSSESSION OF THE ARREST WARRANT FOR THE ENTIRE PERIOD
THAT LEWIS WAS PRESENT, HE WAS NOT SERVED WITH THAT WARRANT OR ARRESTED
UNTIL LATE THAT AFTERNOON, AT APPROXIMATELY 5 P.M.  TWO HOURS EARLIER,
LEWIS HAD BEEN PERMITTED TO CALL HIS LAWYER AND TWO ATTORNEYS WERE
PRESENT ON HIS BEHALF IN THE OFFICE AT THE TIME OF THE FORMAL ARREST. 
UPON THE ARREST, LEWIS' CAR KEYS AND THE PARKING LOT CLAIM CHECK WERE
RELEASED TO THE POLICE.  A TOW TRUCK WAS DISPATCHED TO REMOVE THE CAR
FROM THE PARKING LOT TO THE POLICE IMPOUNDMENT LOT. 

THE IMPOUNDED CAR WAS EXAMINED THE NEXT DAY BY A TECHNICIAN FROM THE
OHIO BUREAU OF CRIMINAL INVESTIGATION.  THE TREAD OF ITS RIGHT REAR
TIRE WAS FOUND TO MATCH THE CAST OF A TIRE IMPRESSION MADE AT THE SCENE
OF THE CRIME.  /4/  THE TECHNICIAN TESTIFIED THAT, IN HIS OPINION, THE
FOREIGN PAINT ON THE FENDER OF RADCLIFFE'S CAR WAS NOT DIFFERENT FROM
THE PAINT SAMPLES TAKEN FROM RESPONDENT'S VEHICLE, THAT IS, THERE WAS
NO DIFFERENCE IN COLOR, TEXTURE, OR ORDER OF LAYERING OF THE PAINT. 

THE DISTRICT COURT CONCLUDED THAT THE SEIZURE AND EXAMINATION OF
LEWIS' CAR WERE VIOLATIVE OF THE FOURTH AND FOURTEENTH AMENDMENTS, AND
THAT THE EVIDENCE OBTAINED THEREFROM SHOULD HAVE BEEN EXCLUDED AT THE
STATE COURT TRIAL.  THE COURT, ACCORDINGLY, ISSUED A WRIT OF HABEAS
CORPUS REQUIRING THE STATE TO "INITIATE ACTION FOR A NEW TRIAL OF"
RESPONDENT WITHIN 90 DAYS OR, IN THE ALTERNATIVE, TO RELEASE HIM.  354
F. SUPP., AT 44.  THE COURT OF APPEALS, IN AFFIRMING, HELD THAT THE
SCRAPING OF PAINT FROM THE EXTERIOR OF LEWIS' CAR WAS IN FACT A SEARCH,
WITHIN THE MEANING OF THE FOURTH AMENDMENT; THAT THERE WAS NO CONSENT
TO THAT SEARCH; THAT IT WAS NOT INCIDENT TO LEWIS' ARREST; AND THAT THE
SEIZURE OF THE CAR COULD NOT BE JUSTIFIED ON THE GROUND THAT THE
VEHICLE WAS AN INSTRUMENTALITY OF THE CRIME IN PLAIN VIEW. 

II 

THIS CASE IS FACTUALLY DIFFERENT FROM PRIOR CAR SEARCH CASES DECIDED
BY THIS COURT.  THE EVIDENCE WITH WHICH WE ARE CONCERNED IS NOT THE
PRODUCT OF A "SEARCH" THAT IMPLICATES TRADITIONAL CONSIDERATIONS OF THE
OWNER'S PRIVACY INTEREST.  IT CONSISTED OF PAINT SCRAPINGS FROM THE
EXTERIOR AND AN OBSERVATION OF THE TREAD OF A TIRE ON AN OPERATIVE
WHEEL.  THE ISSUE, THEREFORE, IS WHETHER THE EXAMINATION OF AN
AUTOMOBILE'S EXTERIOR UPON PROBABLE CAUSE INVADES A RIGHT TO PRIVACY
WHICH THE INTERPOSITION OF A WARRANT REQUIREMENT IS MEANT TO PROTECT. 
THIS IS AN ISSUE THIS COURT HAS NOT PREVIOUSLY ADDRESSED. 

THE COMMON-LAW NOTION THAT A WARRANT TO SEARCH AND SEIZE IS
DEPENDENT UPON THE ASSERTION OF A SUPERIOR GOVERNMENT INTEREST IN
PROPERTY, SEE, E.G., ENTICK V. CARRINGTON, 19 HOW.  ST. TR. 1029, 1066
(1765), AND THE PROPOSITION THAT A WARRANT IS VALID "ONLY WHEN A
PRIMARY RIGHT TO SUCH SEARCH AND SEIZURE MAY BE FOUND IN THE INTEREST
WHICH THE PUBLIC OR THE COMPLAINANT MAY HAVE IN THE PROPERTY TO BE
SEIZED, OR IN THE RIGHT TO THE POSSESSION OF IT," GOULED V. UNITED
STATES, 255 U.S. 298, 309 (1921), WERE EXPLICITLY REJECTED AS
CONTROLLING FOURTH AMENDMENT CONSIDERATIONS IN WARDEN V. HAYDEN, 387
U.S. 294, 302 - 306 (1967).  RATHER THAN PROPERTY RIGHTS, THE PRIMARY
OBJECT OF THE FOURTH AMENDMENT WAS DETERMINED TO BE THE PROTECTION OF
PRIVACY.  ID., AT 305 - 306.  AND IT HAD BEEN SAID EARLIER, "THE
DECISIONS OF THIS COURT HAVE TIME AND AGAIN UNDERSCORED THE ESSENTIAL
PURPOSE OF THE FOURTH AMENDMENT TO SHIELD THE CITIZEN FROM UNWARRANTED
INTRUSIONS INTO HIS PRIVACY."  JONES V. UNITED STATES, 357 U.S. 493,
498 (1958).  SEE ALSO SCHMERBER V. CALIFORNIA, 384 U.S. 757, 769 - 770
(1966); KATZ V. UNITED STATES, 389 U.S. 347, 350 (1967); UNITED STATES
V. DIONISIO, 410 U.S. 1, 14 - 15 (1973). 

AT LEAST SINCE CARROLL V. UNITED STATES, 267 U.S. 132 (1925), THE
COURT HAS RECOGNIZED A DISTINCTION BETWEEN THE WARRANTLESS SEARCH AND
SEIZURE OF AUTOMOBILES OR OTHER MOVABLE VEHICLES, ON THE ONE HAND, AND
THE SEARCH OF A HOME OR OFFICE, ON THE OTHER.  GENERALLY, LESS
STRINGENT WARRANT REQUIREMENTS HAVE BEEN APPLIED TO VEHICLES.  IN
CHAMBERS V. MARONEY, 399 U.S. 42, 49 (1970), THE COURT CHRONICLED THE
DEVELOPMENT OF CAR SEARCHES AND SEIZURES.  /5/  AN UNDERLYING FACTOR IN
THE CARROLL-CHAMBERS LINE OF DECISIONS HAS BEEN THE EXIGENT
CIRCUMSTANCES THAT EXIST IN CONNECTION WITH MOVABLE VEHICLES.  "(THE
CIRCUMSTANCES THAT FURNISH PROBABLE CAUSE TO SEARCH A PARTICULAR AUTO
FOR PARTICULAR ARTICLES ARE MOST OFTEN UNFORESEEABLE; MOREOVER, THE
OPPORTUNITY TO SEARCH IS FLEETING SINCE A CAR IS READILY MOVABLE." 
CHAMBERS V. MARONEY, 399 U.S., AT 50 - 51.  THIS IS STRIKINGLY TRUE
WHERE THE AUTOMOBILE'S OWNER IS ALERTED TO POLICE INTENTIONS AND, AS A
CONSEQUENCE, THE MOTIVATION TO REMOVE EVIDENCE FROM OFFICIAL GRASP IS
HEIGHTENED. 

THERE IS STILL ANOTHER DISTINGUISHING FACTOR.  "THE SEARCH OF AN
AUTOMOBILE IS FAR LESS INTRUSIVE ON THE RIGHTS PROTECTED BY THE FOURTH
AMENDMENT THAN THE SEARCH OF ONE'S PERSON OR OF A BUILDING."  ALMEIDA
SANCHEZ V. UNITED STATES, 413 U.S. 266, 179 (1973) (POWELL, J.,
CONCURRING).  ONE HAS A LESSER EXPECTATION OF PRIVACY IN A MOTOR
VEHICLE BECAUSE ITS FUNCTION IS TRANSPORTATION AND IT SELDOM SERVES AS
ONE'S RESIDENCE OR AS THE REPOSITORY OF PERSONAL EFFECTS.  A CAR HAS
LITTLE CAPACITY FOR ESCAPING PUBLIC SCRUTINY.  IT TRAVELS PUBLIC
THOROUGHFARES WHERE BOTH ITS OCCUPANTS AND ITS CONTENTS ARE IN PLAIN
VIEW.  SEE PEOPLE V. CASE, 220 MICH. 379, 388 389, 190 N.W. 289, 292
(1922).  "WHAT A PERSON KNOWINGLY EXPOSES TO THE PUBLIC, EVEN IN HIS
OWN HOME OR OFFICE, IS NOT A SUBJECT OF FOURTH AMENDMENT PROTECTION." 
KATZ V. UNITED STATES, 389 U.S., AT 351; UNITED STATES V. DIONISIO, 410
U.S., AT 14.  THIS IS NOT TO SAY THAT NO PART OF THE INTERIOR OF AN
AUTOMOBILE HAS FOURTH AMENDMENT PROTECTION; THE EXERCISE OF A DESIRE TO
BE MOBILE DOES NOT, OF COURSE, WAIVE ONE'S RIGHT TO BE FREE OF
UNREASONABLE GOVERNMENT INTRUSION.  BUT INSOFAR AS FOURTH AMENDMENT
PROTECTION EXTENDS TO A MOTOR VEHICLE, IT IS THE RIGHT TO PRIVACY THAT
IS THE TOUCHSTONE OF OUR INQUIRY.  IN THE PRESENT CASE, NOTHING FROM
THE INTERIOR OF THE CAR AND NO PERSONAL EFFECTS, WHICH THE FOURTH
AMENDMENT TRADITIONALLY HAS BEEN DEEMED TO PROTECT, WERE SEARCHED OR
SEIZED AND INTRODUCED IN EVIDENCE.  /6/  WITH THE "SEARCH"  LIMITED TO
THE EXAMINATION OF THE TIRE ON THE WHEEL AND THE TAKING OF PAINT
SCRAPINGS FROM THE EXTERIOR OF THE VEHICLE LEFT IN THE PUBLIC PARKING
LOT, WE FAIL TO COMPREHEND WHAT EXPECTATION OF PRIVACY WAS INFRINGED. 
/7/  STATED SIMPLY, THE INVASION OF PRIVACY, "IF IT CAN BE SAID TO
EXIST, IS ABSTRACT AND THEORETICAL."  AIR POLLUTION VARIANCE BOARD V.
WESTERN ALFALFA CORP., 416 U.S. 861, 865 (1974).  UNDER CIRCUMSTANCES
SUCH AS THESE, WHERE PROBABLE CAUSE EXISTS, A WARRANTLESS EXAMINATION
OF THE EXTERIOR OF A CAR IS NOT UNREASONABLE UNDER THE FOURTH AND
FOURTEENTH AMENDMENTS.  /8/ 

HERE, IT HAS BEEN ESTABLISHED AND IS CONCEDED THAT THE POLICE HAD
PROBABLE CAUSE TO SEARCH LEWIS' CAR.  AN AUTOMOBILE SIMILAR IN COLOR
AND MODEL TO HIS CAR HAD BEEN SEEN LEAVING THE SCENE OF THE CRIME. 
THIS SIMILARITY WAS CORROBORATED BY COMPARISON OF THE PAINT SCRAPINGS
TAKEN FROM THE VICTIM'S CAR WITH THE COLOR AND PAINT OF LEWIS'
AUTOMOBILE.  LEWIS HAD HAD REPAIR WORK DONE ON HIS CAR IMMEDIATELY
FOLLOWING THE DEATH OF THE VICTIM.  AND HE HAD A NEXUS WITH RADCLIFFE
ON THE DAY OF DEATH.  ALL THIS PROVIDED REASON TO BELIEVE THAT THE CAR
WAS USED IN THE COMMISSION OF THE CRIME FOR WHICH LEWIS WAS ARRESTED. 
COOPER V. CALIFORNIA, 386 U.S. 58, 61 (1967). 

        III 

CONCLUDING, AS WE HAVE, THAT THE EXAMINATION OF THE EXTERIOR OF THE
VEHICLE UPON PROBABLE CAUSE WAS REASONABLE, WE HAVE YET TO DETERMINE
WHETHER THE PRIOR IMPOUNDMENT OF THE AUTOMOBILE RENDERED THAT
EXAMINATION A VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS.  WE DO
NOT THINK THAT, BECAUSE THE POLICE IMPOUNDED THE CAR PRIOR TO THE
EXAMINATION, WHICH THEY COULD HAVE MADE ON THE SPOT, THERE IS A
CONSTITUTIONAL BARRIER TO THE USE OF THE EVIDENCE OBTAINED THEREBY. 
UNDER THE CIRCUMSTANCES OF THIS CASE, THE SEIZURE ITSELF WAS NOT
UNREASONABLE. 

RESPONDENT ASSERTS THAT THIS CASE IS INDISTINGUISHABLE FROM COOLIDGE
V. NEW HAMPSHIRE, 403 U.S. 443 (1971).  WE DO NOT AGREE.  THE PRESENT
CASE DIFFERS FROM COOLIDGE BOTH IN THE SCOPE OF THE SEARCH /9/  AND IN
THE CIRCUMSTANCES OF THE SEIZURE.  SINCE THE COOLIDGE CAR WAS PARKED ON
THE DEFENDANT'S DRIVEWAY, THE SEIZURE OF THAT AUTOMOBILE REQUIRED AN
ENTRY UPON PRIVATE PROPERTY.  HERE, AS IN CHAMBERS V. MARONEY, 399 U.S.
42 (1970), THE AUTOMOBILE WAS SEIZED FROM A PUBLIC PLACE WHERE ACCESS
WAS NOT MEANINGFULLY RESTRICTED.  THIS IS, IN FACT, THE GROUND UPON
WHICH THE COOLIDGE PLURALITY OPINION DISTINGUISHED CHAMBERS, 403 U.S.,
AT 463 N. 20.  SEE ALSO CADY V. DOMBROWSKI, 413 U.S. 433, 446 - 447
(1973). 

IN CONSIDERING WHETHER THE LACK OF A WARRANT TO SEIZE A VEHICLE
INVALIDATES THE OTHERWISE LEGAL EXAMINATION OF THE CAR, CHAMBERS IS
HIGHLY PERTINENT.  IN CHAMBERS, FOUR MEN IN AN AUTOMOBILE WERE ARRESTED
SHORTLY AFTER AN ARMED ROBBERY.  THE COURT CONCLUDED THAT THERE WAS
PROBABLE CAUSE TO ARREST AND PROBABLE CAUSE TO SEARCH THE VEHICLE.  THE
CAR WAS TAKEN FROM THE HIGHWAY TO THE POLICE STATION WHERE, SOME TIME
LATER, A SEARCH PRODUCING INCRIMINATING EVIDENCE, WAS CONDUCTED.  WE
STATED:     "FOR CONSTITUTIONAL PURPOSES, WE SEE NO DIFFERENCE BETWEEN
ON THE ONE HAND SEIZING AND HOLDING A CAR BEFORE PRESENTING THE
PROBABLE CAUSE ISSUE TO A MAGISTRATE AND ON THE OTHER HAND CARRYING OUT
AN IMMEDIATE SEARCH WITHOUT A WARRANT.  GIVEN PROBABLE CAUSE TO SEARCH,
EITHER COURSE IS REASONABLE UNDER THE FOURTH AMENDMENT. 

     ". . . THE PROBABLE-CAUSE FACTOR STILL OBTAINED AT THE STATION

  HOUSE AND SO DID THE MOBILITY OF THE CAR UNLESS THE FOURTH

  AMENDMENT PERMITS A WARRANTLESS SEIZURE OF THE CAR AND THE DENIAL

  OF ITS USE TO ANYONE UNTIL A WARRANT IS SECURED.  IN THAT EVENT

  THERE IS LITTLE TO CHOOSE IN TERMS OF PRACTICAL CONSEQUENCES

  BETWEEN AN IMMEDIATE SEARCH WITHOUT A WARRANT AND THE CAR'S

  IMMOBILIZATION UNTIL A WARRANT IS OBTAINED."  399 U.S., AT 52. 

THE FACT THAT THE CAR IN CHAMBERS WAS SEIZED AFTER BEING STOPPED ON A
HIGHWAY, WHEREAS LEWIS' CAR WAS SEIZED FROM A PUBLIC PARKING LOT, HAS
LITTLE, IF ANY, LEGAL SIGNIFICANCE.  /10/  THE SAME ARGUMENTS AND
CONSIDERATIONS OF EXIGENCY, IMMOBILIZATION ON THE SPOT, AND POSTING A
GUARD OBTAIN.  IN FACT, BECAUSE THE INTERROGATION SESSION ENDED WITH
AWARENESS THAT LEWIS HAD BEEN ARRESTED AND THAT HIS CAR CONSTITUTED
INCRIMINATING EVIDENCE, THE INCENTIVE AND POTENTIAL FOR THE CAR'S
REMOVAL SUBSTANTIALLY INCREASED.  THERE WAS TESTIMONY AT THE FEDERAL
HEARING THAT LEWIS ASKED ONE OF HIS ATTORNEYS TO SEE THAT HIS WIFE AND
FAMILY GOT THE CAR, AND THAT THE ATTORNEY RELINQUISHED THE KEYS TO THE
POLICE IN ORDER TO AVOID A PHYSICAL CONFRONTATION.  354 F. SUPP., AT
33.  IN CHAMBERS, ALL OCCUPANTS OF THE CAR WERE IN CUSTODY AND THERE
WERE NO MEANS OF RELATING THIS FACT OR THE LOCATION OF THE CAR (IF IT
HAD NOT BEEN IMPOUNDED) TO A FRIEND OR CONFEDERATE.  CHAMBERS ALSO
STATED THAT A SEARCH OF THE CAR ON THE SPOT WAS IMPRACTICAL BECAUSE IT
WAS DARK AND THE SEARCH COULD NOT BE CAREFULLY EXECUTED.  399 U.S., AT
52N.  10.  HERE TOO, THE SEIZURE FACILITATED THE TYPE OF CLOSE
EXAMINATION NECESSARY.  /11/ 

RESPONDENT CONTENDS THAT HERE, UNLIKE CHAMBERS, PROBABLE CAUSE TO
SEARCH THE CAR EXISTED FOR SOME TIME PRIOR TO ARREST AND THAT,
THEREFORE, THERE WERE NO EXIGENT CIRCUMSTANCES.  ASSUMING THAT PROBABLE
CAUSE PREVIOUSLY EXISTED, WE KNOW OF NO CASE OR PRINCIPLE THAT SUGGESTS
THAT THE RIGHT TO SEARCH ON PROBABLE CAUSE AND THE REASONABLENESS OF
SEIZING A CAR UNDER EXIGENT CIRCUMSTANCES ARE FORECLOSED IF A WARRANT
WAS NOT OBTAINED AT THE FIRST PRACTICABLE MOMENT.  EXIGENT
CIRCUMSTANCES WITH REGARD TO VEHICLES ARE NOT LIMITED TO SITUATIONS
WHERE PROBABLE CAUSE IS UNFORESEEABLE AND ARISES ONLY AT THE TIME OF
ARREST.  CF. CHAMBERS, ID., AT 50 - 51.  THE EXIGENCY MAY ARISE AT ANY
TIME, AND THE FACT THAT THE POLICE MIGHT HAVE OBTAINED A WARRANT
EARLIER DOES NOT NEGATE THE POSSIBILITY OF A CURRENT SITUATION'S
NECESSITATING PROMPT POLICE ACTION.  /12/ 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

              IT IS SO ORDERED. 

/1/  THE ARREST WARRANT WAS OBTAINED IN DELAWARE COUNTY, WHERE THE
CRIME WAS COMMITTED.  THE ACTIVITIES OFFICE IS IN ADJACENT FRANKLIN
COUNTY.  IN OHIO, AN ARREST WARRANT MAY BE SERVED IN ANY COUNTY OF THE
STATE.  OHIO REV. CODE AMM.  2941.36 (1953).  IN CONTRAST, A SEARCH
WARRANT IN OHIO MAY BE ISSUED BY A JUDGE OR MAGISTRATE ONLY "WITHIN HIS
JURISDICTION."  OHIO REV. CODE ANN. 2933.21 (SUPP. 1972).  THUS, A
SEARCH WARRANT OBTAINED IN DELAWARE COUNTY IS NOT VALID IN FRANKLIN
COUNTY. 

/2/  THE CALL WAS MADE AT ABOUT 9:30 A.M. ON JULY 19 BY A MAN WHO
IDENTIFIED HIMSELF TO MRS. SMITH AS RADCLIFFE AND WHO STATED THAT THE
BOOKS WERE IN "A - 1 CONDITION."  MRS. SMITH, WHO KNEW THE VICTIM, DID
NOT IDENTIFY THE CALLER AS RADCLIFFE.  GUNSHOTS WERE HEARD BETWEEN 8
A.M. AND 8:30 A.M. THAT DAY BY TWO WOMEN WHO LIVED NEAR THE SITE OF THE
CRIME.  IT THUS BECAME CLEAR THAT SOMEONE HAD IMPERSONATED RADCLIFFE IN
MAKING THE TELEPHONE CALL. 

/3/  THE CALENDAR'S PAGE FOR JULY 19 WAS MISSING.  INVESTIGATION
DISCLOSED A WRITING INDENTATION, ON THE NEXT AND UNDERLYING PAGE FOR
JULY 20, WHICH INDICATED WHAT HAD BEEN WRITTEN ON THE PAGE FOR JULY
19. 

/4/  APPARENTLY, THE CAR'S TRUNK WAS ALSO OPENED AND A TIRE IN THE
TRUNK WAS OBSERVED.  354 F. SUPP. 26, 33; 476 F. 2D 467, 468.  NO
EVIDENCE OBTAINED FROM ANY PART OF THE INTERIOR OF THE VEHICLE,
HOWEVER, WAS INTRODUCED. 

/5/  THE COURT THERE DISCUSSED THE FOLLOWING POST-CARROLL CASES:
HUSTY V. UNITED STATES, , 282 U.S. 694 (1931); SCHER V. UNITED STATES,
305 U.S. 251 (1938); BRINEGAR V. UNITED STATES, 338 U.S. 160 (1949);
PRESTON V. UNITED STATES, 376 U.S. 364 (1964); COOPER V. CALIFORNIA,,
386 U.S. 58 (1967); DYKE V. TAYOR IMPLEMENT MFG. CO., 391 U.S. 216
(1968).  CASES DECIDED SINCE CHAMBERS AND THAT NOW MIGHT BE ADDED TO
THE LIST INCLUDE COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443 (1971);
ALMEIDA-SANCHEZ V. UNITED STATES, 413 U.S. 266 (1973); CADY V.
DOMBROWSKI, 413 U.S. 433 (1973).  SEE ALSO HARRIS V. UNITED STATES, 390
U.S. 234 (1968); NOTE, WARRANTLESS SEARCHES AND SEIZURES OF
AUTOMOBILES, 87 HARV. L. REV. 835 (1974). 

/6/  PETITIONER CONTENDS THAT LEWIS' CAR KEYS AND THE PARKING LOT
CLAIM CHECK WERE SEIZED IN PLAIN VIEW AS AN INCIDENT TO HIS ARREST, AND
THAT THIS SEIZURE SERVED TO TRANSFER CONSTRUCTIVE POSSESSION OF THE
VEHICLE WHICH COULD THAN BE SEARCHED AND SEIZED AS AN INSTRUMENTALITY
OF THE CRIME.  WE FEEL THAT THE DISTRICT COURT AND THE COURT OF APPEALS
WERE CORRECT IN REJECTING THIS ARGUMENT.  IRRESPECTIVE OF THE PLAIN
VIEW OR INSTRUMENTALITY ANALYSES, THE CONCEPT OF CONSTRUCTIVE
POSSESSION HAS NOT BEEN FOUND TO JUSTIFY THE SEARCH OR SEIZURE OF AN
ITEM NOT IN ACTUAL POSSESSION. 

/7/  AS HAS BEEN NOTED, THE ARREST WAS MADE AT THE OFFICE OF THE
DIVISION OF CRIMINAL ACTIVITIES; BUT THE EXAMINATION OF THE VEHICLE
TOOK PLACE SOME TIME LATER AT THE POLICE IMPOUNDMENT LOT.  THIS
DIFFERENCE IN TIME AND PLACE ELIMINATES ANY SEARCH-INCIDENT-TO-AN
ARREST CONTENTION.  "THE RULE ALLOWING CONTEMPORANEOUS SEARCHES IS
JUSTIFIED, FOR EXAMPLE, BY THE NEED TO SEIZE WEAPONS AND OTHER THINGS
WHICH MIGHT BE USED TO ASSAULT AN OFFICER OR EFFECT AN ESCAPE, AS WELL
AS BY THE NEED TO PREVENT THE DESTRUCTION OF EVIDENCE OF THE CRIME-
THINGS WHICH MIGHT EASILY HAPPEN WHERE THE WEAPON OR EVIDENCE IS ON THE
ACCUSED'S PERSON OR UNDER HIS IMMEDIATE CONTROL.  BUT THESE
JUSTIFICATIONS ARE ABSENT WHERE A SEARCH IS REMOTE IN TIME OR PLACE
FROM THE ARREST.  ONCE AN ACCUSED IS UNDER ARREST AND IN CUSTODY, THEN
A SEARCH MADE AT ANOTHER PLACE, WITHOUT A WARRANT, IS SIMPLY NOT
INCIDENT TO THE ARREST."  PRESTON V. UNITED STATES, 376 U.S. 364, 367
(1964).  SEE ALSO CHAMBERS V. MARONEY, 399 U.S. 42, 47 (1970). 

/8/  AGAIN, WE ARE NOT CONFRONTED WITH ANY ISSUE AS TO THE PROPRIETY
OF A SEARCH OF A CAR'S INTERIOR.  "NEITHER CARROLL, SUPRA, NOR OTHER
CASES IN THIS COURT REQUIRE OR SUGGEST THAT IN EVERY CONCEIVABLE
CIRCUMSTANCE THE SEARCH OF AN AUTO EVEN WITH PROBABLE CAUSE MAY BE MADE
WITHOUT THE EXTRA PROTECTION FOR PRIVACY THAT A WARRANT AFFORDS."  ID.,
AT 50. 

/9/  COOLIDGE CONCERNED A THOROUGH AND EXTENSIVE SEARCH OF THE
ENTIRE AUTOMOBILE INCLUDING THE INTERIOR FROM WHICH, BY VACUUM
SWEEPINGS, INCRIMINATING EVIDENCE WAS OBTAINED.  A SEARCH OF THAT KIND
RAISES DIFFERENT AND ADDITIONAL CONSIDERATIONS NOT PRESENT IN THE
EXAMINATION OF A TIRE ON AN OPERATIVE WHEEL AND IN THE TAKING OF
EXTERIOR PAINT SAMPLES FROM THE VEHICLE IN THE PRESENT CASE FOR WHICH
THERE WAS NO REASONABLE EXPECTATION OF PRIVACY. 

/10/  BEFORE THE DISTRICT COURT, THE STATE ARGUED THAT LEWIS HAD
CONSENTED TO THE SEIZURE OF HIS CAR BY REQUESTING THAT THE POLICE
IMPOUND IT FOR SAFEKEEPING.  THE DISTRICT COURT STATED, 

"VIEWING THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO THE STATE,
PETITIONER (LEWIS) DID NOT CLEARLY AND UNEQUIVOCALLY CONSENT TO THE
SEIZURE AND SEARCH OF THE AUTOMOBILE.  THE TESTIMONY . . . ESTABLISHED
AT MOST, THAT PETITIONER CONSENTED TO THEIR TAKING CUSTODY OF THE CAR
FOR SAFEKEEPING.  THERE IS NO EVIDENCE THAT PETITIONER CONSENTED,
EXPRESSLY OR IMPLIEDLY, TO A SEIZURE OF THE AUTOMOBILE FOR PURPOSES OF
A SEARCH.  . . ."  354 F. SUPP., AT 37 - 38.  INASMUCH AS WE HOLD THE
SEIZURE TO BE JUSTIFIED UNDER CHAMBERS, WE DO NOT REACH THE ISSUE OF
LEWIS' CONSENT. 

/11/  TO MAKE A COMPARISON WITH A PAINT SCRAPING REQUIRED THAT A
SAMPLED.  THIS CONCEIVABLY COULD NECESSITATE SEVERAL SCRAPINGS IF THE
FIRST SAMPLE WAS NOT CONCLUSIVE AFTER LABORATORY ANALYSIS.  SIMILARLY,
TO MAKE A CAST OF THE TIRE TREAD ON THE OPERATIVE WHEEL WOULD REQUIRE
LABORATORY EQUIPMENT. 

/12/  WE DO NOT ADDRESS THE QUESTION FOUND TO BE DETERMINATIVE IN
MR. JUSTICE POWELL'S OPINION CONCURRING IN THE RESULT.  THIS QUESTION
WAS NOT RAISED OR BRIEFED BY THE PARTIES. 

MR. JUSTICE POWELL, CONCURRING IN THE RESULT. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS FOR THE REASONS
SET FORTH IN MY CONCURRING OPINION IN SCHNECKLOTH V. BUSTAMONTE, 412
U.S. 218, 250 (1973).  AS STATED THEREIN, I WOULD HOLD THAT "FEDERAL
COLLATERAL REVIEW OF A STATE PRISONER'S FOURTH AMENDMENT CLAIMS--CLAIMS
WHICH RARELY BEAR ON INNOCENCE--SHOULD BE CONFINED SOLELY TO THE
QUESTION OF WHETHER THE PETITIONER (FOR HABEAS CORPUS) WAS PROVIDED A
FAIR OPPORTUNITY TO RAISE AND HAVE ADJUDICATED THE QUESTION IN STATE
COURTS."  IBID.  IN THIS CASE THERE IS NO CONTENTION THAT RESPONDENT
WAS DENIED A FULL AND FAIR OPPORTUNITY TO LITIGATE HIS CLAIM IN THE
STATE COURTS. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND JR. JUSTICE MARSHALL JOIN, DISSENTING. 

THE MOST FUNDAMENTAL RULE IN THIS AREA OF CONSTITUTIONAL LAW IS THAT
"SEARCHES CONDUCTED OUTSIDE THE JUDICIAL PROCESS, WITHOUT PRIOR
APPROVAL BY JUDGE OR MAGISTRATE, ARE PER SE UNREASONABLE UNDER THE
FOURTH AMENDMENT--SUBJECT ONLY TO A FEW SPECIFICALLY ESTABLISHED AND
WELL-DELINEATED EXCEPTIONS."  KATZ V. UNITED STATES, 389 U.S. 347, 357;
COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 454 - 455.  SEE ALSO CAMARA V.
MUNICIPAL COURT, 387 U.S. 523, 528 - 529.  SINCE THERE WAS NO WARRANT
AUTHORIZING THE SEARCH AND SEIZURE IN THIS CASE, AND SINCE NONE OF THE
"SPECIFICALLY ESTABLISHED AND WELL-DELINEATED EXCEPTIONS"  TO THE
WARRANT REQUIREMENT HERE EXISTED, I AM CONVINCED THE JUDGMENT OF THE
COURT OF APPEALS MUST BE AFFIRMED.  /1/ 

IN CASTING ABOUT FOR SOME WAY TO AVOID THE IMPACT OF OUR PREVIOUS
DECISIONS, THE PLURALITY OPINION FIRST SUGGESTS, ANTE, AT 588 - 589,
THAT NO "SEARCH" REALLY TOOK PLACE IN THIS CASE, SINCE ALL THAT THE
POLICE DID WAS TO SCRAPE PAINT FROM THE RESPONDENT'S CAR AND MAKE
OBSERVATIONS OF ITS TIRES.  WHATEVER MERIT THIS ARGUMENT MIGHT POSSESS
IN THE ABSTRACT, IT IS IRRELEVANT IN THE CIRCUMSTANCES DISCLOSED BY
THIS RECORD.  THE ARGUMENT IS IRRELEVANT FOR THE SIMPLE REASON THAT THE
POLICE, BEFORE TAKING THE PAINT SCRAPINGS AND LOOKING AT THE TIRES,
FIRST TOOK POSSESSION OF THE CAR ITSELF.  THE FOURTH AND FOURTEENTH
AMENDMENTS PROTECT AGAINST "UNREASONABLE SEARCHES AND SEIZURES,"  AND
THERE MOST ASSUREDLY WAS A SEIZURE HERE. 

THE PLURALITY OPINION NEXT SEEMS TO SUGGEST THAT THE BASIC
CONSTITUTIONAL RULE CAN BE OVERLOOKED IN THIS CASE BECAUSE THE SUBJECT
OF THE SEIZURE WAS AN AUTOMOBILE.  IT IS TRUE, OF COURSE, THAT A LINE
OF DECISIONS, BEGINNING WITH CARROLL V. UNITED STATES, 367 U.S. 132,
HAVE RECOGNIZED A SO-CALLED "AUTOMOBILE EXCEPTION" TO THE
CONSTITUTIONAL PREQUIREMENT OF A WARRANT.  BUT "(THE WORD 'AUTOMOBILE'
IS NOT A TALISMAN IN WHOSE PRESENCE THE FOURTH AMENDMENT FADES AWAY AND
DISAPPEARS."  COOLIDGE, SUPRA, AT 461 - 462.  RATHER, THE CARROL
DOCTRINE SIMPLY RECOGNIZES THE OBVIOUS--THAT A MOVING AUTOMOBILE ON THE
OPEN ROAD PRESENTS A SITUATION "WHERE IT IS NOT PRACTICABLE TO SECURE A
WARRANT BECAUSE THE VEHICLE CAN BE QUICKLY MOVED OUT OF THE LOCALITY OR
JURISDICTION IN WHICH THE WARRANT MUST BE SOUGHT."  CARROLL, SUPRA, AT
153.  SEE ALSO ALMEIDA-SANCHEZ V. UNITED STATES, 413 U.S. 266, 269. 
WHERE THERE IS NO REASONABLE LIKELIHOOD THAT THE AUTOMOBILE WOULD OR
COULD BE MOVED, THE CARROLL DOCTRINE IS SIMPLY INAPPLICABLE.  SEE,
E.G., COOLIDGE, SUPRA; PRESTON V. UNITED STATES, 376 U.S. 364. 

THE FACTS OF THIS CASE MAKE CLEAR BEYOND PERADVENTURE THAT THE
"AUTOMOBILE EXCEPTION" IS NOT AVAILABLE TO UPHOLD THE WARRANTLESS
SEIZURE OF THE RESPONDENT'S CAR.  WELL BEFORE THE TIME THAT THE
AUTOMOBILE WAS SEIZED, THE RESPONDENT--AND THE KEYS TO HIS CAR WERE
SECURELY WITHIN POLICE CUSTODY.  THERE WAS THUS ABSOLUTELY NO
LIKELIHOOD THAT THE RESPONDENT COULD HAVE EITHER MOVED THE CAR OR
MEDDLED WITH IT DURING THE TIME NECESSARY TO OBTAIN A SEARCH WARRANT. 
AND THERE WAS NO REALISTIC POSSIBILITY THAT ANYONE ELSE WAS IN A
POSITION TO DO SO EITHER.  I AM AT A LOSS, THEREFORE, TO UNDERSTAND THE
PLURALITY OPINION'S CONCLUSION, ANTE, AT 595, THAT THERE WAS A
"POTENTIAL FOR THE CAR'S REMOVAL" DURING THE PERIOD IMMEDIATELY
PRECEDING THE CAR'S SEIZURE.  THE FACTS OF RECORD CAN ONLY SUPPORT A
DIAMETRICALLY OPPOSITE CONCLUSION. 

FINALLY, THE PLURALITY OPINION SUGGESTS THAT OTHER "EXIGENT
CIRCUMSTANCES" MIGHT HAVE EXCUSED THE FAILURE OF THE POLICE TO PROCURE
A WARRANT.  THE OPINION NOWHERE STATES WHAT THESE MYSTICAL EXIGENCIES
MIGHT HAVE BEEN, AND COUNSEL FOR THE PETITIONER HAS NOT BEEN SO
INVENTIVE AS TO SUGGEST ANY.  /2/  SINCE THE AUTHORITIES HAD TAKEN CARE
TO PROCURE AN ARREST WARRANT EVEN BEFORE THE RESPONDENT ARRIVED FOR
QUESTIONING, IT CAN SCARCELY BE SAID THAT PROBABLE CAUSE WAS NOT
DISCOVERED UNTIL SO LATE A POINT IN TIME AS TO PREVENT THE OBTAINING OF
A WARRANT FOR SEIZURE OF THE AUTOMOBILE.  AND, WITH THE AUTOMOBILE
EFFECTIVELY IMMOBILIZED DURING THE PERIOD OF THE RESPONDENT'S
INTERROGATION, THE FEAR THAT EVIDENCE MIGHT BE DESTROYED WAS HARDLY AN
EXIGENCY, PARTICULARLY WHEN IT IS REMEMBERED THAT NO SUCH FEAR PROMPTED
A SEIZURE DURING ALL THE PRECEDING MONTHS WHILE THE DEFENDANT, THOUGH
UNDER INVESTIGATION, HAD BEEN IN FULL CONTROL OF THE CAR.  /3/  THIS
IS, QUITE SIMPLY, A CASE WHERE NO EXIGENT CIRCUMSTANCES EXISTED.  /4/ 

UNTIL TODAY IT HAS BEEN CLEAR THAT "(NEITHER CARROLL . . . NOR OTHER
CASES IN THIS COURT REQUIRE OR SUGGEST THAT IN EVERY CONCEIVABLE
CIRCUMSTANCE THE SEARCH OF AN AUTO EVEN WITH PROBABLE CAUSE MAY BE MADE
WITHOUT THE EXTRA PROTECTION FOR PRIVACY THAT A WARRANT AFFORDS." 
CHAMBERS V. MARONEY, 399 U.S. 42, 50.  I WOULD FOLLOW THE SETTLED
CONSTITUTIONAL LAW ESTABLISHED IN OUR DECISIONS AND AFFIRM THE JUDGMENT
OF THE COURT OF APPEALS. 

/1/  THIS DISSENT IS DIRECTED TOWARD THE SEARCH-AND-SEIZURE ANALYSIS
IN MR. JUSTICE BLACKMUN'S PLURALITY OPINION.  LIKE THE PLURALITY, I DO
NOT CONSIDER THE ISSUE RAISED BY MR. JUSTICE POWELL'S CONCURRENCE, IT
HAVING BEEN NEITHER BRIEFED NOR ARGUED BY THE PARTIES. 

/2/  EVEN THE SOLICITOR GENERAL, WHO APPEARED AS AMICUS CURIAE
URGING A REVERSAL OF THE COURT OF APPEALS' JUDGMENT IN THIS CASE, HAS
CANDIDLY ADMITTED IN HIS BRIEF THAT "NO SATISFACTORY REASON APPEARS FOR
THE FAILURE OF THE LAW ENFORCEMENT OFFICERS TO HAVE OBTAINED A WARRANT-
THERE APPEARS ON THE FACTS OF THIS CASE TO HAVE BEEN NO REAL LIKELIHOOD
THAT RESPONDENT WOULD HAVE DESTROYED OR CONCEALED THE EVIDENCE SOUGHT
DURING THE TIME REQUIRED TO SEEK AND PROCURE A WARRANT."  BRIEF FOR
UNITED STATES AS AMICUS CURIAE 4 - 5. 

/3/  IT CAN HARDLY BE AUGUED THAT THE QUESTIONING OF THE RESPONDENT
BY THE POLICE FOR THE FIRST TIME ALERTED HIM TO THEIR INTENTIONS, THUS
SUDDENLY PROVIDING HIM A MOTIVATION TO REMOVE THE CAR FROM "OFFICIAL
GRASP."  ANTE, AT 590, 595.  EVEN PUTTING TO ONE SIDE THE QUESTION OF
HOW THE RESPONDENT COULD HAVE ACTED TO DESTROY ANY EVIDENCE WHILE HE
WAS IN POLICE CUSTODY, THE FACT IS THAT HE WAS FULLY AWARE OF OFFICIAL
SUSPICION DURING SEVERAL MONTHS PRECEDING THE INTERROGATION.  HE HAD
BEEN QUESTIONED ON SEVERAL OCCASIONS PRIOR TO HIS ARREST, AND HE HAD
BEEN ALERTED ON THE DAY BEFORE THE INTERROGATION THAT THE POLICE WISHED
TO SEE HIM.  NONETHELESS, HE VOLUNTARILY DROVE HIS CAR TO COLUMBUS TO
KEEP HIS APPOINTMENT WITH THE INVESTIGATORS. 

/4/  THE PLURALITY OPINION CORRECTLY REJECTS, ANTE, AT 591 - 592, N.
7.  THE PETITIONER'S CONTENTION THAT THE SEIZURE HERE WAS INCIDENT TO
THE ARREST OF THE RESPONDENT.  "ONCE AN ACCUSED IS UNDER ARREST AND IN
CUSTODY, THEN A SEARCH MADE AT ANOTHER PLACE, WITHOUT A WARRANT, IS
SIMPLY NOT INCIDENT TO THE ARREST."  PRESTON V. UNITED STATES, 376 U.S.
364, 367. 

LEO J. CONWAY, ASSISTANT ATTORNEY GENERAL OF OHIO, ARGUED THE CAUSE
FOR PETITIONER.  WITH HIM ON THE BRIEF WERE WILLIAM J. BROWN, ATTORNEY
GENERAL, AND NICHOLAS R. CURCI, ASSISTANT ATTORNEY GENERAL. 

BRUCE A. CAMPBELL, BY APPOINTMENT OF THE COURT, 414 U.S. 1140,
ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

ANDREW L. FREY ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  ON THE BRIEF WERE SOLICITOR GENERAL BORK,
ASSISTANT ATTORNEY GENERAL PETERSEN, AND EDWARD R. KORMAN. 
..END :




ROSS V. MOFFITT, 417 U.S. 600 


       ROSS ET AL. V. MOFFITT

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 73 - 786.  ARGUED APRIL 22, 1974--DECIDED JUNE 17,
1974;

           (483 F. 2D 650, REVERSED.) 


    RESPONDENT, AN INDIGENT, WHILE REPRESENTED BY COURT-APPOINTED

  COUNSEL, WAS CONVICTED OF FORGERY IN STATE COURT IN TWO SEPERATE

  CASES, AND HIS CONVICTIONS WERE AFFIRMED ON HIS APPEALS OF RIGHT

  BY THE NORTH CAROLINA COURT OF APPEALS.  IN ONE CASE HE WAS

  DENIED APPOINTMENT OF COUNSEL FOR DISCRETINARY REVIEW BY THE

  NORTH CAROLINA SUPREME COURT, AND IN THE OTHER CASE, AFTER THAT

  COURT HAD DENIED CERTIORARI, WAS DENIED APOINTMENT OF COUNSEL TO

  PREPARE A PETITION FOR CERTIORARI TO THIS COURT.  SUBSEQUENTLY,

 FEDERAL DISTRICT COURTS DENIED HABEAS CORPUS RELIEF, BUT THE

  UNITED STATES COURT OF APPEALS REVERSED, HOLDING THAT RESPONDENT

  WAS ENTITLED TO APPOINTMENT OF COUNSEL BOTH ON HIS PETITION FOR

  REVIEW BY THE STATE SUPREME COURT AND ON HIS PETITION FOR

  CERTIORARI IN THIS COURT.  HELD: 

     1.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES
NOT

  REQUIRE NORTH CAROLINA TO PROVIDE RESPONDENT WITH COUNSEL ON HIS

  DISCRETIONARY APPEAL TO THE STATE SUPREME COURT.  PP. 609 - 611. 

     (A) AS CONTRASTED WITH THE TRIAL STAGE OF A CRIMINAL

  PROCEEDING, A DEFENDANT APPEALING A CONVICTION NEEDS AN ATTORNEY,

  NOT AS A SHIELD TO PROTECT HIM AGAINST BEING "HALED INTO COURT"

  BY THE STATE AND STRIPPED OF HIS PRESUMPTION OF INNOCENCE, BUT

  RATHER AS A SWORD TO UPSET THE PRIOR DETERMINATION OF GUILT, THE

  DIFFERENCE BEING SIGNIFICANT SINCE, WHILE A STATE MAY NOT

  DISPENSE WITH THE TRIAL STAGE WITHOUT THE DEFENDANT'S CONSENT, IT

  NEED NOT PROVIDE ANY APPEAL AT ALL.  PP. 610 - 611. 

     (B) THE FACT THAT AN APPEAL HAS BEEN PROVIDED DOES NOT

  AUTOMATICALLY MEAN THAT THE STATE THEN ACTS UNFAIRLY BY REFUSING

  TO PROVIDE COUNSEL TO INDIGENT DEFENDANTS AT EVERY STAGE OF THE

  WAY, BUT UNFAIRNESS RESULTS ONLY IF THE STATE SINGLES OUT

  INDIGENTS AND DENIES THEM MEANINGFUL ACCESS TO THE APPELLATE

  SYSTEM BECAUSE OF THEIR POVERTY.  P. 611. 

     2.  NOR DOES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

  AMENDMENT REQUIRE NORTH CAROLINA TO PROVIDE FREE COUNSEL FOR

  INDIGENT DEFENDANTS SEEKING DISCRETIONARY APPEALS TO THE STATE

  SUPREME COURT.  PP. 611 / 616. 

     (A) A DEFENDANT IN RESPONDENT'S CIRCUMSTANCES IS NOT DENIED

  MEANINGFUL ACCESS TO THE STATE SUPREME COURT SIMPLY BECAUSE THE

  STATE DOES NOT APPOINT COUNSEL TO AID HIM IN SEEKING REVIEW IN

  THAT COURT, SINCE AT THAT STAGE, UNDER NORTH CAROLINA'S

  MULTITIERED APPELLATE SYSTEM, HE WILL HAVE, AT THE VERY LEAST, A

  TRANSCRIPT OR OTHER RECORD OF THE TRIAL PROCEEDINGS, A BRIEF IN

  THE COURT OF APPEALS SETTING FORTH HIS CLAIMS OF ERROR, AND

FREQUENTLY AN OPINION BY THAT COURT DISPOSING OF HIS CASE,

  MATERIALS WHICH, WHEN SUPPLEMENTED BY ANY PRO SE SUBMISSION THAT

  MIGHT BE MADE, WOULD PROVIDE THE SUPREME COURT WITH AN ADEQUATE

  BASIS FOR ITS DECISION TO GRANT OR DENY REVIEW UNDER ITS

  STANDARDS OF WHETHER THE CASE HAS "SIGNIFICANT PUBLIC INTEREST,"

  INVOLVES "LEGAL PRINCIPLES OF MAJOR SIGNIFICANCE," OR LIKELY

  CONFLICTS WITH A PREVIOUS SUPREME COURT DECISION.  PP. 614 -

  615. 

     (B) BOTH AN INDIGENT DEFENDANT'S OPPORTUNITY TO HAVE COUNSEL

PREPARE AN INITIAL BRIEF IN THE COURT OF APPEALS AND THE NATURE

  OF THE SUPREME COURT'S DISCRETIONARY REVIEW MAKE THE RELATIVE

  HANDICAP THAT SUCH A DEFENDANT MAY HAVE IN COMPARISON TO A

  WEALTHY DEFENDANT, WHO HAS COUNSEL AT EVERY STAGE OF THE

  PROCEEDING, FAR LESS THAN THE HANDICAP BORNE BY AN INDIGENT

  DEFENDANT DENIED COUNSEL ON HIS INITIAL APPEAL OF RIGHT, DOUGLAS

  V. CALIFORNIA, 372 U.S. 353.  P. 616. 

     (C) THAT A PARTICULAR SERVICE MIGHT BENEFIT AN INDIGENT

  DEFENDANT DOES NOT MEAN THAT THE SERVICE IS CONSTITUTIONALLY

  REQUIRED, THE DUTY OF THE STATE NOT BEING TO DUPLICATE THE LEGAL

  ARSENAL THAT MAY BE PRIVATELY RETAINED BY A CRIMINAL DEFENDANT IN

  A CONTINUING EFFORT TO REVERSE HIS CONVICTION, BUT ONLY TO ASSURE

  THE INDIGENT DEFENDANT, AS WAS DONE HERE, AN ADEQUATE OPPORTUNITY

  TO PRESENT HIS CLAIMS FAIRLY IN THE CONTEXT OF THE STATE'S

APPELLATE PROCESS.  P. 616. 

     3.  SIMILARLY, THE FOURTEENTH AMENDMENT DOES NOT REQUIRE NORTH

  CAROLINA TO PROVIDE COUNSEL FOR A CONVICTED INDIGENT DEFENDANT

  SEEKING TO FILE A PETITION FOR CERTIORARI IN THIS COURT, UNDER

  CIRCUMSTANCES WHERE THE STATE WILL HAVE PROVIDED COUNSEL FOR HIS

  ONLY APPEAL AS OF RIGHT, AND THE BRIEF PREPARED BY SUCH COUNSEL

  TOGETHER WITH ONE AND PERHAPS TWO STATE APPELLATE OPINIONS WILL

  BE AVAILABLE TO THIS COURT IN ORDER TO DECIDE WHETHER TO GRANT

  CERTIORARI.  PP. 616 - 618. 

    (A) SINCE THE RIGHT TO SEEK DISCRETIONARY REVIEW IN THIS COURT

  IS CONFERRED BY FEDERAL STATUTES AND NOT BY ANY STATE, THE

  ARGUMENT THAT THE STATE HAVING ONCE CREATED A RIGHT OF APPEAL

  MUST GIVE ALL PERSONS AN EQUAL OPPORTUNITY TO ENJOY THE RIGHT, IS

  BY ITS TERMS INAPPLICABLE. 

     GRIFFIN V. ILLINOIS, 351 U.S. 12, AND DOUGLAS V. CALIFORNIA,

  SUPRA, DISTINGUISHED.  P. 617. 

     (B) THE SUGGESTION THAT A STATE IS RESPONSIBLE FOR PROVIDING

  COUNSEL TO AN INDIGENT DEFENDANT PETITIONING THIS COURT SIMPLY

 BECAUSE IT INITIATED THE PROSECUTION LEADING TO THE JUDGMENT

  SOUGHT TO BE REVIEWED IS UNSUPPORTED BY EITHER REASON OR

  AUTHORITY.  PP. 617 - 618. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ.,

  JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH

  BRENNAN AND MARSHALL, JJ., JOINED, POST, P. 619. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED IN THIS CASE TO DECIDE WHETHER DOUGLAS V. CALIFORNIA,
372 U.S. 353 (1963), WHICH REQUIRES APPOINTMENT OF COUNSEL FOR INDIGENT
STATE DEFENDANTS ON THEIR FIRST APPEAL AS OF RIGHT, SHOULD BE EXTENDED
TO REQUIRE COUNSEL FOR DISCRETIONARY STATE APPEALS AND FOR APPLICATIONS

FOR REVIEW IN THIS COURT.  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT
HELD THAT SUCH APPOINTMENT WAS REQUIRED BY THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.  /1/

        I 

THE CASE NOW BEFORE US HAS RESULTED FORM CONSOLIDATION OF TWO
SEPARATE CASES, NORTH CAROLINA CRIMINAL PROSECUTIONS BROUGHT IN THE
RESPECTIVE SUPERIOR COURTS FOR THE COUNTIES OF MECKLENBURG AND
GUILFORD.  IN BOTH CASES RESPONDENT PLEADED NOT GUILTY TO CHARGES OF
FORGERY AND UTTERING A FORGED INSTRUMENT, AND BECAUSE OF HIS INDIGENCY
WAS REPRESENTED AT TRAIL BY COURT-APPOINTED COUNSEL.  HE WAS CONVICTED
AND THEN TOOK SEPARATE APPEALS TO THE NORTH CAROLINA COURT OF APPEALS,
WHERE HE WAS AGAIN REPRESENTED BY COURT-APPOINTED COUNSEL, AND HIS
CONVICTIONS WERE AFFIRMED.  /2/  AT THIS POINT THE PROCEDURAL HISTORIES
OF THE TWO CASES DIVERGE. 

FOLLOWING AFFIRMANCE OF HIS MECHLENBURG COUNTY CONVICTION,
RESPONDENT SOUGHT TO INVOKE THE DISCRETIONARY REVIEW PROCEDURES OF THE
NORTH CAROLINA SUPREME COURT.  HIS COURT-APPOINTED COUNSEL APPROACHED
THE MECKLENBURG COUNTY SUPERIOR COURT ABOUT POSSIBLE APPOINTMENT TO
REPRESENT RESPONDENT ON THIS APPEAL, BUT COUNSEL WAS INFORMED THAT THE
STATE WAS NOT REQUIRED TO FURNISH COUNSEL FOR THAT PETITION. 
RESPONDENT SOUGHT COLLATERAL RELIEF IN BOTH THE STATE AND FEDERAL
COURTS, FIRST RAISING HIS RIGHT-TO-COUNSEL CONTENTION IN A HABEAS
CORPUS PETITION FILED IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA IN FEBRUARY 1971.  RELIEF WAS DENIED
AT THAT TIME, AND RESPONDENT'S APPEAL TO THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT WAS DISMISSED BY STIPULATION IN ORDER TO ALLOW
RESPONDENT TO FIRST EXHAUST STATE REMEDIES ON THIS ISSUE.  AFTER
EXHAUSTING STATE REMEDIES, HE REAPPLIED FOR HABEAS RELIEF, WHICH WAS
AGAIN DENIED.  RESPONDENT APPEALED THAT DENIAL TO THE COURT OF APPEALS
FOR THE FOURTH CIRCUIT. 

FOLLOWING AFFIRMANCE OF HIS CONVICTION ON THE GUILFORD COUNTY
CHARGES, RESPONDENT ALSO SOUGHT DISCRETIONARY REVIEW IN THE NORTH
CAROLINA SUPREME COURT.  ON THIS APPEAL, HOWEVER, RESPONDENT WAS NOT
DENIED COUNSEL BUT RATHER WAS REPRESENTATED BY THE PUBLIC DEFENDER WHO
HAD BEEN APPOINTED FOR THE TRIAL AND RESPONDENT'S FIRST APPEAL.  THE
NORTH CAROLINA SUPREME COURT DENIED CERTIORARI.  /3/  RESPONDENT THEN
UNSUCCESSFULLY PETITIONED THE SUPERIOR COURT FOR GUILFORD COUNTY FOR
COURT-APPOINTED COUNSEL TO PREPARE A PETITION FOR A WRIT OF CERTIORARI
TO THIS COURT, AND ALSO SOUGHT POST-CONVICTION RELIEF THROUGHOUT THE
STATE COURTS.  AFTER THESE MOTIONS WERE DENIED, RESPONDENT AGAIN SOUGHT
FEDERAL HABEAS RELIEF, THIS TIME IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA.  THAT COURT DENIED RELIEF,
AND RESPONDENT TOOK AN APPEAL TO THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

THE COURT OF APPEALS REVERSED THE TWO DISTRICT COURT JUDGMENTS,
HOLDING THAT RESPONDENT WAS ENTITLED TO THE ASSISTANCE OF COUNSEL AT
STATE EXPENSE BOTH ON HIS PETITION FOR REVIEW IN THE NORTH CAROLINA
SUPREME COURT AND ON HIS PETITION FOR CERTIORARI TO THIS COURT. 
REVIEWING THE PROCEDURES OF THE NORTH CAROLINA APPELLATE SYSTEM AND THE
POSSIBLE BENEFITS THAT COUNSEL WOULD PROVIDE FOR INDIGENTS SEEKING
REVIEW IN THAT SYSTEM, THE COURT STATED: 

"AS LONG AS THE STATE PROVIDES SUCH PROCEDURES AND ALLOWS OTHER
CONVICTED FELONS TO SEEK ACCESS TO THE HIGHER COURT WITH THE HELP OF
RETAINED COUNSEL, THERE IS A MARKED ABSENCE OF FAIRNESS IN DENYING AN
INDIGENT THE ASSISTANCE OF COUNSEL AS HE SEEKS ACCESS TO THE SAME
COURT."  /4/ THIS PRINCIPLE WAS HELD EQUALLY APPLICABLE TO PETITIONS
FOR CERTIORARI TO THIS COURT.  FOR, SAID THE COURT OF APPEALS, "(THE
SAME CONCEPTS OF FAIRNESS AND EQUALITY, WHICH REQUIRE COUNSEL IN A
FIRST APPEAL OF RIGHT, REQUIRE COUNSEL IN OTHER AND SUBSEQUENT
DISCRETIONARY APPEALS."  /5/ 

WE GRANTED CERTIORARI, 414 U.S. 1128, TO CONSIDER THE COURT OF
APPEALS' DECISION IN LIGHT OF DOUGLAS V. CALIFORNIA, AND APPARENTLY
CONFLICTING DECISIONS OF THE COURTS OF APPEALS FOR THE SEVENTH AND
TENTH CIRCUITS.  /6/  FOR THE REASONS HEREAFTER STATED WE REVERSE THE
COURT OF APPEALS. 

        II 

THIS COURT, IN THE PAST 20 YEARS, HAS GIVEN EXTENSIVE CONSIDERATION
TO THE RIGHTS OF INDIGNET PERSONS ON APPEAL.  IN GRIFFIN V. ILLINOIS,
351 U.S. 12 (1956), THE FIRST OF THE PERTINENT CASES, THE COURT HAD
BEFORE IT AN ILLINOIS RULE ALLOWING A CONVICTED CRIMINAL DEFENDANT TO
PRESENT CLAIMS OF TRIAL ERROR TO THE SUPREME COURT OF ILLINOIS ONLY IF
HE PROCURED A TRANSCRIPT OF THE TESTIMONY ADDUCED AT HIS TRIAL.  /7/
NO EXCEPTION WAS MADE FOR THE INDIGENT DEFENDANT, AND THUS ONE WHO WAS
UNABLE TO PAY THE COST OF OBTAINING SUCH A TRANSCRIPT WAS PRECLUDED
FROM OBTAINING APPELLATE REVIEW OF ASSERTED TRIAL ERROR.  MR. JUSTICE
FRANKFURTER, WHO CAST THE DECIDING VOTE, SAID IN HIS CONCURRING
OPINION: 

"... ILLINOIS HAS DECREED THAT ONLY DEFENDANTS WHO CAN AFFORD TO PAY
FOR THE STENOGRAPHIC MINUTES OF A TRIAL MAY HAVE TRIAL ERRORS REVIEWED
ON APPEAL BY THE ILLINOIS SUPREME COURT."  ID., AT 22.  THE COURT IN
GRIFFIN HELD THAT THIS DISCRIMINATION VIOLATED THE FOURTEENTH
AMENDMENT. 

SUCCEEDING CASES INVALIDATED SIMILAR FINANCIAL BARRIERS TO THE
APPELLATE PROCESS, AT THE SAME TIME REAFFIRMING THE TRADITIONAL
PRINCIPLE THAT A STATE IS NOT OBLIGED TO PROVIDE ANY APPEAL AT ALL FOR
CRIMINAL DEFENDANTS.  MCKANE V. DURSTON, 153 U.S. 684 (1894).  THE
CASES ENCOMPASSED A VARIETY OF CIRCUMSTANCES BUT ALL HAD A COMMON
THEME.  FOR EXAMPLE, LANE V. BROWN, 372 U.S. 477 (1963), INVOLVED AN
INDIANA PROVISION DECLARING THAT ONLY A PUBLIC DEFENDER COULD OBTAIN A
FREE TRANSCRIPT OF A HEARING ON A CORAM NOBIS APPLICATION.  IF THE
PUBLIC DEFENDER DECLINED TO REQUEST ONE, THE INDIGENT PRISONER SEEKING
TO APPEAL HAD NO RECOURSE.  IN DRAPER V. WASHINGTON, 372 U.S. 487
(1963), THE STATE PERMITTED AN INDIGENT TO OBTAIN A FREE TRANSCRIPT OF
THE TRIAL AT WHICH HE WAS CONVICTED ONLY IF HE SATISFIED THE TRIAL
JUDGE THAT HIS CONTENTIONS ON APPEAL WOULD NOT BE FRIVOLOUS.  THE
APPEALING DEFENDANT WAS IN EFFECT BOUND BY THE TRIAL COURT'S
CONCLUSIONS IN SEEKING TO REVIEW THE DETERMINATION OF FRIVOLOUSNESS,
SINCE NO TRANSCRIPT OR ITS EQUIVALENT WAS MADE AVAILABLE TO HIM.  IN
SMITH V. BENNETT, 365 U.S. 708 (1961), IOWA HAD REQUIRED A FILING FEE
IN ORDER TO PROCESS A STATE HABEAS CORPUS APPLICATION BY A CONVICTED
DEFENDANT, AND IN BURNS V. OHIO, 360 U.S. 252 (1959), THE STATE OF OHIO
REQUIRED A $20 FILING FEE IN ORDER TO MOVE THE SUPREME COURT OF OHIO
FOR LEAVE TO APPEAL FROM A JUDGMENT OF THE OHIO COURT OF APPEALS
AFFIRMING A CRIMINAL CONVICTION.  EACH OF THESE STATE-IMPOSED FINANCIAL
BARRIERS TO THE ADJUDICATION OF A CRIMINAL DEFENDANT'S APPEAL WAS HELD
TO VIOLATE THE FOURTEENTH AMENDMENT. 

THE DECISIONS DISCUSSED ABOVE STAND FOR THE PROPOSITION THAT A STATE
CANNOT ARBITRARILY CUT OFF APPEAL RIGHTS FOR INDIGENTS WHILE LEAVING
OPEN AVENUES OF APPEAL FOR MORE AFFLUENT PERSONS.  IN DOUGLAS V.
CALIFORNIA, 372 U.S. 353 (1963), HOWEVER, A CASE DECIDED THE SAME DAY
AS LANE, SUPRA, AND DRAPER, SUPRA, THE COURT DEPARTED SOMEWHAT FROM THE
LIMITED DOCTRINE OF THE TRANSCRIPT AND FEE CASES AND UNDERTOOK AN
EXAMINATION OF WHETHER AN INDIGENT'S ACCESS TO THE APPELLATE SYSTEM WAS
ADEQUATE.  THE COURT IN DOUGLAS CONCLUDED THAT A STATE DOES NOT FULFILL
ITS RESPONSIBILITY TOWARDS INDIGENT DEFENDANTS MERELY BY WAIVING ITS
OWN REQUIREMENTS THAT A CONVICTED DEFENDANT PROCURE A TRANSCRIPT OR PAY
A FEE IN ORDER TO APPEAL, AND HELD THAT THE STATE MUST GO FURTHER AND
PROVIDE COUNSEL FOR THE INDIGENT ON HIS FIRST APPEAL AS OF RIGHT.  IT
IS THIS DECISION WE ARE ASKED TO EXTEND TODAY. 

PETITIONERS IN DOUGLAS, EACH OF WHOM HAD BEEN CONVICTED BY A JURY ON
13 FELONY COUNTS, TOOK APPEALS AS OF RIGHT TO THE CALIFORNIA DISTRICT
COURT OF APPEAL.  NO FILING FEE WAS EXACTED OF THEM, NO TRANSCRIPT WAS
REQUIRED IN ORDER TO PRESENT THEIR ARGUMENTS TO THE COURT OF APPEALS,
AND THE APPELLATE PROCESS WAS THEREFORE OPEN TO THEM.  PETITIONERS,
HOWEVER, CLAIMED THAT THEY NOT ONLY HAD THE RIGHT TO MAKE USE OF THE
APPELLATE PROCESS, BUT WERE ALSO ENTITLED TO COURT-APPOINTED AND STATE
COMPENSATED COUNSEL BECAUSE THEY WERE INDIGENT.  THE CALIFORNIA
APPELLATE COURT EXAMINED THE TRIAL RECORD ON ITS OWN INITIATIVE,
FOLLOWING THE THEN-EXISTING RULE IN CALIFORNIA, AND CONCLUDED THAT "'NO
GOOD WHATEVER COULD BE SERVED BY APPOINTMENT OF COUNSEL.'"  372 U.S.,
AT 355.  IT THEREFORE DENIED PETITIONERS' REQUEST FOR THE APPOINTMENT
OF COUNSEL. 

THIS COURT HELD UNCONSTITUTIONAL CALIFORNIA'S REQUIREMENT THAT
COUNSEL ON APPEAL WOULD BE APPOINTED FOR AN INDIGENT ONLY IF THE
APPELLATE COURT DETERMINED THAT SUCH APPOINTMENT WOULD BE HELPFUL TO
THE DEFENDANT OR TO THE COURT ITSELF.  THE COURT NOTED THAT UNDER THIS
SYSTEM AN INDIGENT'S CASE WAS INITIALLY RVIEWED ON THE MERITS WITHOUT
THE BENEFIT OF ANY ORGANIZATION OR ARGUMENT BY COUNSEL.  BY CONTRAST,
PERSONS OF GREATER MEANS WERE NOT FACED WITH THE PRELIMINARY "EX PARTE
EXAMINATION OF THE RECORD," ID., AT 356, BUT HAD THEIR ARGUMENTS
PRESENTED TO THE COURT IN FULLY BRIEFED FORM.  THE COURT NOTED,
HOWEVER, THAT ITS DECISION EXTENDED ONLY TO INITIAL APPEALS AS OF
RIGHT, AND WENT ON TO SAY: 

"WE NEED NOT NOW DECIDE WHETHER CALIFORNIA WOULD HAVE TO PROVIDE
COUNSEL FOR AN INDIGENT SEEKING A DISCRETIONARY HEARING FROM THE
CALIFORNIA SUPREME COURT AFTER THE DISTRICT COURT OF APPEAL HAD
SUSTAINED HIS CONVICTION . . . OR WHETHER COUNSEL MUST BE APPOINTED FOR
AN INDIGENT SEEKING REVIEW OF AN APPELLATE AFFIRMANCE OF HIS CONVICTION
IN THIS COURT BY APPEAL AS OF RIGHT OR BY PETITION FOR A WRIT OF
CERTIORARI WHICH LIES WITHIN THE COURT'S DISCRETION.  BUT IT IS
APPROPRIATE TO OBSERVE THAT A STATE CAN, CONSISTENTLY WITH THE
FOURTEENTH AMENDMENT, PROVIDE FOR DIFFERENCES SO LONG AS THE RESULT
DOES NOT AMOUNT TO A DENIAL OF DUE PROCESS OR AN 'INVIDIOUS
DISCRIMINATION.'  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489)
GRIFFIN V. ILLINOIS, SUPRA, P. 18.  ABSOLUTE EQUALITY IS NOT REQUIRED;
LINES CAN BE AND ARE DRAWN AND WE OFTEN SUSTAIN THEM."  ID., AT 356 -
357. 

THE PRECISE RATIONALE FOR THE GRIFFIN AND DOUGLAS LINES OF CASES HAS
NEVER BEEN EXPLICITLY STATED, SOME SUPPORT BEING DERIVED FROM THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND SOME FROM THE DUE
PROCESS CLAUSE OF THAT AMENDMENT.  /8/  NEITHER CLAUSE BY ITSELF
PROVIDES AN ENTIRELY SATISFACTORY BASIS FOR THE RESULT REACHED, EACH
DEPENDING ON A DIFFERENT INQUIRY WHICH EMPHASIZES DIFFERENT FACTORS. 
"DUE PROCESS" EMPHASIZES FAIRNESS BETWEEN THE STATE AND THE INDIVIDUAL
DEALING WITH THE STATE, REGARDLESS OF HOW OTHER INDIVIDUALS IN THE SAME
SITUATION MAY BE TREATED.  "EQUAL PROTECTION," ON THE OTHER HAND,
EMPHASIZES DISPARITY IN TREATMENT BY A STATE BETWEEN CLASSES OF
INDIVIDUALS WHOSE SITUATIONS ARE ARGUABLY INDISTINGUISHABLE.  WE WILL
ADDRESS THESE ISSUES SEPARATELY IN THE SUCCEEDING SECTIONS. 

        III 

RECOGNITION OF THE DUE PROCESS RATIONALE IN DOUGLAS IS FOUND BOTH IN
THE COURT'S OPINION AND IN THE DISSENTING OPINION OF MR. JUSTICE
HARLAN.  THE COURT IN DOUGLAS STATED THAT "(WHEN AN INDIGENT IS FORCED
TO RUN THIS GANTLET OF A PRELIMINARY SHOWING OF MERIT, THE RIGHT TO
APPEAL DOES NOT COMPORT WITH FAIR PROCEDURE."  372 U.S., AT 357.  MR.
JUSTICE HARLAN THOUGHT THAT THE DUE PROCESS ISSUE IN DOUGLAS WAS THE
ONLY ONE WORTHY OF EXTENDED CONSIDERATION, REMARKING:  "THE REAL
QUESTION IN THIS CASE, I SUBMIT, AND THE ONLY ONE THAT PERMITS OF
SATISFACTORY ANALYSIS, IS WHETHER OR NOT THE STATE RULE, AS APPLIED IN
THIS CASE, IS CONSISTENT WITH THE REQUIREMENTS OF FAIR PROCEDURE
GUARANTEED BY THE DUE PROCESS CLAUSE."  ID., AT 363. 

WE DO NOT BELIEVE THAT THE DUE PROCESS CLAUSE REQUIRES NORTH
CAROLINA TO PROVIDE RESPONDENT WITH COUNSEL ON HIS DISCRETIONARY APPEAL
TO THE STATE SUPREME COURT.  AT THE TRIAL STAGE OF A CRIMINAL
PROCEEDING, THE RIGHT OF AN INDIGENT DEFENDANT TO COUNSEL IS
FUNDAMENTAL AND BINDING UPON THE STATES BY VIRTUE OF THE SIXTH AND
FOURTEENTH AMENDMENTS.  GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963).  BUT
THERE ARE SIGNIFICANT DIFFERENCES BETWEEN THE TRIAL AND APPELLATE
STAGES OF A CRIMINAL PROCEEDING.  THE PURPOSE OF THE TRIAL STAGE FROM
THE STATE'S POINT OF VIEW IS TO CONVERT A CRIMINAL DEFENDANT FROM A
PERSON PRESUMED INNOCENT TO ONE FOUND GUILTY BEYOND A REASONABLE
DOUBT.  TO ACCOMPLISH THIS PURPOSE, THE STATE EMPLOYES A PROSECUTING
ATTORNEY WHO PRESENTS EVIDENCE TO THE COURT, CHALLENGES ANY WITNESSES
OFFERED BY THE DEFENDANT, ARGUES RULINGS OF THE COURT, AND MAKES DIRECT
ARGUMENTS TO THE COURT AND JURY SEEKING TO PERSUADE THEM OF THE
DEFENDANT'S GUILT.  UNDER THESE CIRCUMSTANCES "REASON AND REFLECTION
REQUIRE US TO RECOGNIZE THAT IN OUR ADVERSARY SYSTEM OF CRIMINAL
JUSTICE, ANY PERSON HALED INTO COURT, WHO IS TOO POOR TO HIRE A LAWYER,
CANNOT BE ASSURED A FAIR TRIAL UNLESS COUNSEL IS PROVIDED FOR HIM." 
ID., AT 344. 

BY CONTRAST, IT IS ORDINARILY THE DEFENDANT, RATHER THAN THE STATE,
WHO INITIATES THE APPELLATE PROCESS, SEEKING NOT TO FEND OFF THE
EFFORTS OF THE STATE'S PROSECUTOR BUT RATHER TO OVERTURN A FINDING OF
GUILT MADE BY A JUDGE OR JURY BELOW.  THE DEFENDANT NEEDS AN ATTORNEY
ON APPEAL NOT AS A SHIELD TO PROTECT HIM AGAINST BEING "HALED INTO
COURT"  BY THE STATE AND STRIPPED OF HIS PRESUMPTION OF INNOCENCE, BUT
RATHER AS A SWORD TO UPSET THE PRIOR DETERMINATION OF GUILT.  THIS
DIFFERENCE IS SIGNIFICANT FOR, WHILE NO ONE WOULD AGREE THAT THE STATE
MAY SIMPLY DISPENSE WITH THE TRIAL STAGE OF PROCEEDINGS WITHOUT A
CRIMINAL DEFENDANT'S CONSENT, IT IS CLEAR THAT THE STATE NEED NOT
PROVIDE ANY APPEAL AT ALL.  MCKANE V. DURSTON, 153 U.S. 684 (1894). 
THE FACT THAT AN APPEAL HAS BEEN PROVIDED DOES NOT AUTOMATICALLY MEAN
THAT A STATE THEN ACTS UNFAIRLY BY REFUSING TO PROVIDE COUNSEL TO
INDIGENT DEFENDANTS AT EVERY STAGE OF THE WAY.  DOUGLAS V. CALIFORNIA,
SUPRA.  UNFAIRNESS RESULTS ONLY IF INDIGENTS ARE SINGLED OUT BY THE
STATE AND DENIED MEANINGFUL ACCESS TO THE APPELLATE SYSTEM BECAUSE OF
THEIR POVERTY.  THAT QUESTION IS MORE PROFITABLY CONSIDERED UNDER AN
EQUAL PROTECTION ANALYSIS. 

        IV 

LANGUAGE INVOKING EQUAL PROTECTION NOTIONS IS PROMINENT BOTH IN
DOUGLAS AND IN OTHER CASES TREATING THE RIGHTS OF INDIGENTS ON APPEAL. 
THE COURT IN DOUGLAS, FOR EXAMPLE, STATED: 

"(WHERE THE MERITS OF THE ONE AND ONLY APPEAL AN INDIGENT HAS AS OF
RIGHT ARE DECIDED WITHOUT BENEFIT OF COUNSEL, WE THINK AN
UNCONSTITUTIONAL LINE HAS BEEN DRAWN BETWEEN RICH AND POOR."  372 U.S.,
AT 357.  THE COURT IN BURNS V. OHIO, STATED THE ISSUE IN THE FOLLOWING
TERMS: 

"(ONCE THE STATE CHOOSES TO ESTABLISH APPELLATE REVIEW IN CRIMINAL
CASES, IT MAY NOT FORECLOSE INDIGENTS FROM ACCESS TO ANY PHASE OF THAT
PROCEDURE BECAUSE OF THEIR POVERTY."  360 U.A., AT 257.  DESPITE THE
TENDENCY OF ALL RIGHTS "TO DECLARE THEMSELVES ABSOLUTE TO THEIR LOGICAL
EXTREME,"  /9/  THERE ARE OBVIOUSLY LIMITS BEYOND WHICH THE EQUAL
PROTECTION ANALYSIS MAY NOT BE PRESSED WITHOUT DOING VIOLENCE TO
PRINCIPLES RECOGNIZED IN OTHER DECISIONS OF THIS COURT.  THE FOURTEENTH
AMENDMENT "DOES NOT REQUIRE ABSOLUTE EQUALITY OR PRECISELY EQUAL
ADVANTAGES," SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ, 411
U.S. 1, 24 (1973), NOR DOES IT REQUIRE THE STATE TO "EQUALIZE ECONOMIC
CONDITIONS."  GRIFFIN V. ILLINOIS, 351 U.S., AT 23 (FRANKFURTER, J.,
CONCURRING).  IT DOES REQUIRE THAT THE STATE APPELLATE SYSTEM BE "FREE
OF UNREASONED DISTINCTIONS," RINALDI V. YEAGER, 384 U.S. 305, 310
(1966), AND THAT INDIGENTS HAVE AN ADEQUATE OPPORTUNITY TO PRESENT
THEIR CLAIMS FAIRLY WITHIN THE ADVERSARY SYSTEM.  GRIFFIN V. ILLINOIS,
SUPRA; DRAPER V. WASHINGTON, 372 U.S. 487 (1963).  THE STATE CANNOT
ADOPT PROCEDURES WHICH LEAVE AN INDIGENT DEFENDANT "ENTIRELY CUT OFF
FROM ANY APPEAL AT ALL," BY VIRTUE OF HIS INDIGENCY, LANE V. BROWN, 372
U.S., AT 481, OR EXTEND TO SUCH INDIGENT DEFENDANTS MERELY A
"MEANINGLESS RITUAL"  WHILE OTHERS IN BETTER ECONOMIC CIRCUMSTANCES
HAVE A "MEANINGFUL APPEAL."  DOUGLAS V. CALIFORNIA, SUPRA, AT 358.  THE
QUESTION IS NOT ONE OF ABSOLUTES, BUT ONE OF DEGREES.  IN THIS CASE WE
DO NOT BELIEVE THAT THE EQUAL PROTECTION CLAUSE, WHEN INTERPRETED IN
THE CONTEXT OF THESE CASES, REQUIRES NORTH CAROLINA TO PROVIDE FREE
COUNSEL FOR INDIGENT DEFENDANTS SEEKING TO TAKE DISCRETIONARY APPEALS
TO THE NORTH CAROLINA SUPREME COURT, OR TO FILE PETITIONS FOR
CERTIORARI IN THIS COURT. 

A. THE NORTH CAROLINA APPELLATE SYSTEM, AS ARE THE APPELLATE SYSTEMS
OF ALMOST HALF THE STATES, /10/  IS MULTITIERED, PROVIDING FOR BOTH AN
INTERMEDIATE COURT OF APPEALS AND A SUPREME COURT.  THE COURT OF
APPEALS WAS CREATED EFFECTIVE JANUARY 1, 1967, AND, LIKE OTHER
INTERMEDIATE STATE APPELLATE COURTS, WAS INTENDED TO ABSORB A
SUBSTANTIAL SHARE OF THE CASELOAD PREVIOUSLY BURDENING THE SUPREME
COURT.  IN CRIMINAL CASES, AN APPEAL AS OF RIGHT LIES DIRECTLY TO THE
SUPREME COURT IN ALL CASES WHICH INVOLVE A SENTENCE OF DEATH OR LIFE
IMPRISONMENT, WHILE AN APPEAL OF RIGHT IN ALL OTHER CRIMINAL CASES LIES
TO THE COURT OF APPEALS.  N.C. GEN. STAT. 7A - 27 (1969 AND SUPP.
1973).  A SECOND APPEAL OF RIGHT LIES TO THE SUPREME COURT IN ANY
CRIMINAL CASE "(1) (WHICH DIRECTLY INVOLVES A SUBSTANTIAL QUESTION
ARISING UNDER THE CONSTITUTION OF THE UNITED STATES OR OF THIS STATE,
OR (2) (IN WHICH THERE IS A DISSENT.  . . ."  N.C. GEN. STAT. 7A - 30
(1969).  ALL OTHER DECISIONS OF THE COURT OF APPEALS ON DIRECT REVIEW
OF CRIMINAL CASES MAY BE FURTHER REVIEWED IN THE SUPREME COURT ON A
DISCRETIONARY BASIS. 

THE STATUTE GOVERNING DISCRETIONARY APPEALS TO THE SUPREME COURT IS
N.C. GEN. STAT. 7A - 31.  THIS STATUTE PROVIDES, IN RELEVANT PART, THAT
"(IN ANY CAUSE IN WHICH APPEAL HAS BEEN TAKEN TO THE COURT OF APPEALS .
. . THE SUPREME COURT MAY IN ITS DISCRETION, ON MOTION OF ANY PARTY TO
THE CAUSE OR ON ITS OWN MOTION, CERTIFY THE CAUSE FOR REVIEW BY THE
SUPREME COURT, EITHER BEFORE OR AFTER IT HAS BEEN DETERMINED BY THE
COURT OF APPEALS."  THE STATUTE FURTHER PROVIDES THAT "(IF THE CAUSE IS
CERTIFIED FOR TRANSFER TO THE SUPREME COURT AFTER ITS DETERMINATION BY
THE COURT OF APPEALS, THE SUPREME COURT REVIEWS THE DECISION OF THE
COURT OF APPEALS."  THE CHOICE OF CASES TO BE REVIEWED IS NOT LEFT
ENTIRELY WITHIN THE DISCRETION OF THE SUPREME COURT BUT IS REGULATED BY
STATUTORY STANDARDS.  SUBSECTION (C) OF THIS PROVISION STATES: 

     "IN CAUSES SUBJECT TO CERTIFICATION UNDER SUBSECTION (A) OF

  THIS SECTION, CERTIFICATION MAY BE MADE BY THE SUPREME COURT

  AFTER DETERMINATION OF THE CAUSE BY THE COURT OF APPEALS WHEN IN

  THE OPINION OF THE SUPREME COURT (1) THE SUBJECT MATTER OF THE

APPEAL HAS SIGNIFICANT PUBLIC INTEREST, OR (2) THE CAUSE INVOLVES

  LEGAL PRINCIPLES OF MAJOR SIGNIFICANCE TO THE JURISPRUDENCE OF

  THE STATE, OR (3) THE DECISION OF THE COURT OF APPEALS APPEARS

  LIKELY TO BE IN CONFLICT WITH A DECISION OF THE SUPREME COURT." 

APPOINTMENT OF COUNSEL FOR INDIGENTS IN NORTH CAROLINA IS GOVERNED
BY N.C. GEN. STAT. 7A - 450 ET DEQ.  (1969 AND SUPP. 1973).  THESE
PROVISIONS, ALTHOUGH PERHAPS ON THEIR FACE BROAD ENOUGH TO COVER
APPOINTMENTS SUCH AS THOSE RESPONDENT SOUGHT HERE, /11/  HAVE GENERALLY
BEEN CONSTRUED TO LIMIT THE RIGHT TO APPOINTED COUNSEL IN CRIMINAL
CASES TO DIRECT APPEALS TAKEN AS OF RIGHT.  THUS NORTH CAROLINA HAS
FOLLOWED THE MANDATE OF DOUGLAS V. CALIFORNIA, SUPRA, AND AUTHORIZED
APPOINTMENT OF COUNSEL FOR A CONVICTED DEFENDANT APPEALING TO THE
INTERMEDIATE COURT OF APPEALS, BUT HAS NOT GONE BEYOND DOUGLAS TO
PROVIDE FOR APPOINTMENT OF COUNSEL FOR A DEFENDANT WHO SEEKS EITHER
DISCRETIONARY REVIEW IN THE SUPREME COURT OF NORTH CAROLINA OR A WRIT
OF CERTIORARI HERE. 

B. THE FACTS SHOW THAT RESPONDENT, IN CONNECTION WITH HIS
MECKLENBURG COUNTY CONVICTION, RECEIVED THE BENEFIT OF COUNSEL IN
EXAMINING THE RECORD OF HIS TRIAL AND IN PREPARING AN APPELLATE BRIEF
ON HIS BEHALF FOR THE STATE COURT OF APPEALS.  THUS, PRIOR TO HIS
SEEKING DISCRETIONARY REVIEW IN THE STATE SUPREME COURT, HIS CLAIMS HAD
"ONCE BEEN PRESENTED BY A LAWYER AND PASSED UPON BY AN APPELLATE
COURT."  DOUGLAS V. CALIFORNIA, 372 U.S., AT 356.  WE DO NOT BELIEVE
THAT IT CAN BE SAID, THEREFORE, THAT A DEFENDANT IN RESPONDENT'S
CIRCUMSTANCES IS DENIED MEANINGFUL ACCESS TO THE NORTH CAROLINA SUPREME
COURT SIMPLY BECAUSE THE STATE DOES NOT APPOINT COUNSEL TO AID HIM IN
SEEKING REVIEW IN THAT COURT.  AT THAT STAGE HE WILL HAVE, AT THE VERY
LEAST, A TRANSCRIPT OR OTHER RECORD OF TRIAL PROCEEDINGS, A BRIEF ON
HIS BEHALF IN THE COURT OF APPEALS SETTING FORTH HIS CLAIMS OF ERROR,
AND IN MANY CASES AN OPINION BY THE COURT OF APPEALS DISPOSING OF HIS
CASE.  THESE MATERIALS, SUPPLEMENTED BY WHATEVER SUBMISSION RESPONDENT
MAY MAKE PRO SE, WOULD APPEAR TO PROVIDE THE SUPREME COURT OF NORTH
CAROLINA WITH AN ADEQUATE BASIS FOR ITS DECISION TO GRANT OR DENY
REVIEW. 

WE ARE FORTIFIED IN THIS CONCLUSION BY OUR UNDERSTANDING OF THE
FUNCTION SERVED BY DISCRETIONARY REVIEW IN THE NORTH CAROLINA SUPREME
COURT.  THE CRITICAL ISSUE IN THAT COURT, AS WE PERCEIVE IT, IS NOT
WHETHER THERE HAS BEEN "A CORRECT ADJUDICATION OF GUILT" IN EVERY
INDIVIDUAL CASE, SEE GRIFFIN V. ILLINOIS, 351 U.S., AT 18, BUT RATHER
WHETHER "THE SUBJECT MATTER OF THE APPEAL HAS SIGNIFICANT PUBLIC
INTEREST," WHETHER "THE CAUSE INVOLVES LEGAL PRINCIPLES OF MAJOR
SIGNIFICANCE TO THE JURISPRUDENCE OF THE STATE," OR WHETHER THE
DECISION BELOW IS IN PROBABLE CONFLICT WITH A DECISION OF THE SUPREME
COURT.  THE SUPREME COURT MAY DENY CERTIORARI EVEN THOUGH IT BELIEVES
THAT THE DECISION OF THE COURT OF APPEALS WAS INCORRECT, SEE PEASELEY
V. VIRGINIA IRON, COAL & COKE CO., 282 N.C. 585, 194 S.E. 2D 133
(1973), SINCE A DECISION WHICH APPEARS INCORRECT MAY NEVERTHELESS FAIL
TO SATISFY ANY OF THE CRITERIA DISCUSSED ABOVE.  ONCE A DEFENDANT'S
CLAIMS OF ERROR ARE ORGANIZED AND PRESENTED IN A LAWYERLIKE FASHION TO
THE COURT OF APPEALS, THE JUSTICES OF THE SUPREME COURT OF NORTH
CAROLINA WHO MAKE THE DECISION TO GRANT OR DENY DISCRETIONARY REVIEW
SHOULD BE ABLE TO ASCERTAIN WHETHER HIS CASE SATISFIES THE STANDARDS
ESTABLISHED BY THE LEGISLATURE FOR SUCH REVIEW. 

THIS IS NOT TO SAY, OF COURSE, THAT A SKILLED LAWYER, PARTICULARLY
ONE TRAINED IN THE SOMEWHAT ARCANE ART OF PREPARING PETITIONS FOR
DISCRETIONARY REVIEW, WOULD NOT PROVE HELPFUL TO ANY LITIGANT ABLE TO
EMPLOY HIM.  AN INDIGENT DEFENDANT SEEKING REVIEW IN THE SUPREME COURT
OF NORTH CAROLINA IS THEREFORE SOMEWHAT HANDICAPPED IN COMPARISON WITH
A WEALTHY DEFENDANT WHO HAS COUNSEL ASSISTING HIM IN EVERY CONCEIVABLE
MANNER AT EVERY STAGE IN THE PROCEEDING.  BUT BOTH THE OPPORTUNITY TO
HAVE COUNSEL PREPARE AN INITIAL BRIEF IN THE COURT OF APPEALS AND THE
NATURE OF DISCRETIONARY REVIEW IN THE SUPREME COURT OF NORTH CAROLINA
MAKE THIS RELATIVE HANDICAP FOR LESS THAN THE HANDICAP BORNE BY THE
INDIGENT DEFENDANT DENIED COUNSEL ON HIS INITIAL APPEAL AS OF RIGHT IN
DOUGLAS.  AND THE FACT THAT A PARTICULAR SERVICE MIGHT BE OF BENEFIT TO
AN INDIGENT DEFENDANT DOES NOT MEAN THAT THE SERVICE IS
CONSTITUTIONALLY REQUIRED.  THE DUTY OF THE STATE UNDER OUR CASES IS
NOT TO DUPLICATE THE LEGAL ARSENAL THAT MAY BE PRIVATELY RETAINED BY A
CRIMINAL DEFENDANT IN A CONTINUING EFFORT TO REVERSE HIS CONVICTION,
BUT ONLY TO ASSURE THE INDIGENT DEFENDANT AN ADEQUATE OPPORTUNITY TO
PRESENT HIS CLAIMS FAIRLY IN THE CONTEXT OF THE STATE'S APPELLATE
PROCESS.  WE THINK RESPONDENT WAS GIVEN THAT OPPORTUNITY UNDER THE
EXISTING NORTH CAROLINA SYSTEM. 

        V 

MUCH OF THE DISCUSSION IN THE PRECEDING SECTION IS EQUALLY RELEVANT
TO THE QUESTION OF WHETHER A STATE MUST PROVIDE COUNSEL FOR A DEFENDANT
SEEKING REVIEW OF HIS CONVICTION IN THIS COURT.  NORTH CAROLINA WILL
HAVE PROVIDED COUNSEL FOR A CONVICTED DEFENDANT'S ONLY APPEAL AS OF
RIGHT, AND THE BRIEF PREPARED BY THAT COUNSEL TOGETHER WITH ONE AND
PERHAPS TWO NORTH CAROLINA APPELLATE OPINIONS WILL BE AVAILABLE TO THIS
COURT IN ORDER THAT IT MAY DECIDE WHETHER OR NOT TO GRANT CERTIORARI. 
THIS COURT'S REVIEW, MUCH LIKE THAT OF THE SUPREME COURT OF NORTH
CAROLINA, IS DISCRETIONARY AND DEPENDS ON NUMEROUS FACTORS OTHER THAN
THE PERCEIVED CORRECTNESS OF THE JUDGMENT WE ARE ASKED TO REVIEW. 

THERE IS ALSO A SIGNIFICANT DIFFERENCE BETWEEN THE SOURCE OF THE
RIGHT TO SEEK DISCRETIONARY REVIEW IN THE SUPREME COURT OF NORTH
CAROLINA AND THE SOURCE OF THE RIGHT TO SEEK DISCRETIONARY REVIEW IN
THIS COURT.  THE FORMER IS CONFERRED BY THE STATUTES OF THE STATE OF
NORTH CAROLINA, BUT THE LATTER IS GRANTED BY STATUTE ENACTED BY
CONGRESS.  THUS THE ARGUMENT RELIED UPON IN THE GRIFFIN AND DOUGLAS
CASES, THAT THE STATE HAVING ONCE CREATED A RIGHT OF APPEAL MUST GIVE
ALL PERSONS AN EQUAL OPPORTUNITY TO ENJOY THE RIGHT, IS BY ITS TERMS
INAPPLICABLE.  THE RIGHT TO SEEK CERTIORARI IN THIS COURT IS NOT
GRANTED BY ANY STATE, AND EXISTS BY VIRTUE OF FEDERAL STATUTE WITH OR
WITHOUT THE CONSENT OF THE STATE WHOSE JUDGMENT IS SOUGHT TO BE
REVIEWED. 

THE SUGGESTION THAT A STATE IS RESPONSIBLE FOR PROVIDING COUNSEL TO
ONE PETITIONING THIS COURT SIMPLY BECAUSE IT INITIATED THE PROSECUTION
WHICH LED TO THE JUDGMENT SOUGHT TO BE REVIEWED IS UNSUPPORTED BY
EITHER REASON OR AUTHORITY.  IT WOULD BE QUITE AS LOGICAL UNDER THE
RATIONALE OF DOUGLAS AND GRIFFIN, AND INDEED PERHAPS MORE SO, TO
REQUIRE THAT THE FEDERAL GOVERNMENT OR THIS COURT FURNISH AND
COMPENSATE COUNSEL FOR PETITIONERS WHO SEEK CERTIORARI HERE TO REVIEW
STATE JUDGMENTS OF CONVICTION.  YET THIS COURT HAS FOLLOWED A
CONSISTENT POLICY OF DENYING APPLICATIONS FOR APPOINTMENT OF COUNSEL BY
PERSONS SEEKING TO FILE JURISDICTIONAL STATEMENTS OR PETITIONS FOR
CERTIORARI IN THIS COURT.  SEE, E.G., DRUMM V. CALIFORNIA, 373 U.S. 947
(1963); MOONEY V. NEW YORK, 373 U.S. 947 (1963); OPPENHEIMER V.
CALIFORNIA, 374 U.S. 819 (1963)9 IN THE LIGHT OF THESE AUTHORITIES, IT
WOULD BE ODD, INDEED, TO READ THE FOURTEENTH AMENDMENT TO IMPOSE SUCH A
REQUIREMENT ON THE STATES, AND WE DECLINE TO DO SO.

      VI 

WE DO NOT MEAN BY THIS OPINION TO IN ANY WAY DISCOURAGE THOSE STATES
WHICH HAVE, AS A MATTER OF LEGISLATIVE CHOICE, MADE COUNSEL AVAILABLE
TO CONVICTED DEFENDANTS AT ALL STAGES OF JUDICIAL REVIEW.  SOME STATES
WHICH MIGHT WELL CHOOSE TO DO SO AS A MATTER OF LEGISLATIVE POLICY MAY
CONCEIVABLY FIND THAT OTHER CLAIMS FOR PUBLIC FUNDS WITHIN OR WITHOUT
THE CRIMINAL JUSTICE SYSTEM PRECLUDE THE IMPLEMENTATION OF SUCH A
POLICY AT THE PRESENT TIME.  NORTH CAROLINA, FOR EXAMPLE, WHILE IT DOES
NOT PROVIDE COUNSEL TO INDIGENT DEFENDANTS SEEKING DISCRETIONARY REVIEW
ON APPEAL, DOES PROVIDE COUNSEL FOR INDIGENT PRISONERS IN SEVERAL
SITUATIONS WHERE SUCH APPOINTMENTS ARE NOT REQUIRED BY ANY
CONSTITUTIONAL DECISION OF THIS COURT.  /12/  OUR READING OF THE
FOURTEENTH AMENDMENT LEAVES THESE CHOICES TO THE STATE, AND RESPONDENT
WAS DENIED NO RIGHT SECURED BY THE FEDERAL CONSTITUTION WHEN NORTH
CAROLINA REFUSED TO PROVIDE COUNSEL TO AID HIM IN OBTAINING
DISCRETIONARY APPELLATE REVIEW. 

THE JUDGMENT OF THE COURT OF APPEALS' HOLDING TO THE CONTRARY IS

             REVERSED. 

/1/  483 F.2D 650 (1973).     /2/  STATE V. MOFFITT, 9 N.C. APP.
694, 177 S.E. 2D 324 (1970) (MECKLENBURG); STATE V. MOFFITT, 11 N.C.
APP. 337, 181 S.E. 2D 184 (1971) (GUILFORD). 

/3/  STATE V. MOFFITT, 279 N.C. 396, 183 S.E. 2D 247 (1971). 

/4/  483 F.2D, AT 654. 

/5/  ID., AT 655.  THE COURT THEN DECIDED TO REMAND THE CASE TO THE
DISTRICT COURT TO "APPRAISE THE SUBSTANTIALITY OF THE FEDERAL CLAIM." 
THE COURT NOTED THAT IT HAD NO OPPORTUNITY TO EXAMINE THE PAPERS FILED
IN THE STATE SUPREME COURT AND SAID THET "(IN THE CIRCUMSTANCES OF THIS
CASE . . . , WHERE THE ONLY REMEDY AVAILABLE TO THE DISTRICT COURT
WOULD BE THE PRISONER'S RELEASE ON A WRIT OF HABEAS CORPUS," IT WAS
APPROPRIATE FOR THE DISTRICT COURT TO DETERMINE WHETHER RESPONDENT'S
CLAIM WAS "PATENTLY FRIVOLOUS."  IBID. 

/6/  SEE UNITED STATES EX REL. PENNINGTON V. PATE, 409 F.2D 757 (CA7
1969); PETERS V. COX, 341 F.2D 575 (CA10 1965). 

/7/  SEE 351 U.S., AT 13 N. 2. 

/8/  THE COURT OF APPEALS IN THIS CASE, FOR EXAMPLE, EXAMINED BOTH
POSSIBLE RATIONALES, STATING:  "IF THE HOLDING (IN DOUGLAS) BE GROUNDED
ON THE EQUAL PROTECTION CLAUSE, INEQUALITY IN THE CIRCUMSTANCES OF
THESE CASES IS AS OBVIOUS AS IT WAS IN THE CIRCUMSTANCES OF DOUGLAS. 
IF THE HOLDING IN DOUGLAS WERE GROUNDED ON THE DUE PROCESS CLAUSE, AND
MR. JUSTICE HARLAN IN DISSENT THOUGHT THE DISCOURSE SHOULD HAVE BEEN IN
THOSE TERMS, DUE PROCESS ENCOMPASSES ELEMENTS OF EQUALITY.  THERE
SIMPLY CANNOT BE DUE PROCESS OF THE LAW TO A LITIGANT DEPRIVED OF ALL
PROFESSIONAL ASSISTANCE WHEN OTHER LITIGANTS, SIMILARLY SITUATED, ARE
ABLE TO OBTAIN PROFESSIONSL ASSISTANCE AND TO BE BENEFITED BY IT.  THE
SAME CONCEPTS OF FAIRNESS AND EQUALITY, WHICH REQUIRE COUNSEL IN A
FIRST APPEAL OF RIGHT, REQUIRE COUNSEL IN OTHER AND SUBSEQUENT
DISCRETIONARY APPEALS."  483 F.2D, AT 6559 

/9/  HUDSON COUNTY WATER CO. V. MCCARTER, 209 U.S. 349, 355 (1908). 

/10/  SEE BRIEF FOR RESPONDENT 9 N. 5. 

/11/  FOR EXAMPLE, SUBSECTION (B) (6) OF 7A - 451, EFFECTIVE AT THE
TIME OF RESPONDENT'S APPEALS, PROVIDES FOR COUNSEL ON "(DIRECT REVIEW
OF ANY JUDGMENT OR DECREE, INCLUDING REVIEW BY THE UNITED STATES
SUPREME COURT OF FINAL JUDGMENT OR DECREES RENDERED BY THE HIGHEST
COURT OF NORTH CAROLINA IN WHICH DECISION MAY BE HAD."  BUT THIS
PROVISION APPARENTLY HAS NOT BEEN CONSTRUED TO ALLOW COUNSEL FOR
PERMISSIVE APPELLATE PROCEDURES.  SEE 483 F.2D, AT 652. 

/12/  SECTION 7A - 451 OF N.C. GEN. STAT. (SUPP. 1973) PROVIDES: 

"(A) AN INDIGENT PERSON IS ENTITLED TO SERVICES OF COUNSEL IN THE
FOLLOWING ACTIONS AND PROCEEDINGS: 

"(1) ANY CASE IN WHICH IMPRISONMENT, OR A FINE OF FIVE HUNDRED
DOLLARS ($500.00), OR MORE, IS LIKELY TO BE ADJUDGED; 

"(2) A HEARING ON A PETITION FOR A WRIT OF HABEAS CORPUS UNDER
CHAPTER 17 OF THE GENERAL STATUTES; 

"(3) A POST-CONVICTION PROCEEDING UNDER CHAPTER 15 OF THE GENERAL
STATUTES; 

"(4) A HEARING FOR REVOCATION OF PROBATION, IF CONFINEMENT IS LIKELY
TO BE ADJUDGED AS A RESULT OF THE HEARING; 

"(5) A HEARING IN WHICH EXTRADITION TO ANOTHER STATE IS SOUGHT; 

"(6) A PROCEEDING FOR JUDICIAL HOSPITALIZATION UNDER CHAPTER 122,
ARTICLE 7 (JUDICIAL HOSPITALIZATION) OR ARTICLE 11 (MENTALLY ILL
CRIMINALS), OF THE GENERAL STATUTES AND A PROCEEDING FOR INVOLUNTARY
COMMITMENT TO A TREATMENT FACILITY UNDER ARTICLE 5 OF CHAPTER 122 OF
THE GENERAL STATUTES; 

"(7) A CIVIL ARREST AND BAIL PROCEEDING UNDER CHAPTER 1, ARTICLE 34,
OF THE GENERAL STATUTES; AND

"(8) IN THE CASE OF A JUVENILE, A HEARING AS A RESULT OF WHICH
COMMITMENT TO AN INSTITUTION OR TRANSFER TO THE SUPERIOR COURT FOR
TRIAL ON A FELONY CHARGE IS POSSIBLE." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT BELOW BECAUSE I AM IN AGREEMENT WITH THE
OPINION OF CHIEF JUDGE HAYNSWORTH FOR A UNANIMOUS PANEL IN THE COURT OF
APPEALS.  483 F. 2D 650. 

IN DOUGLAS V. CALIFORNIA, 372 U.S. 353, WE CONSIDERED THE NECESSITY
FOR APPOINTED COUNSEL ON THE FIRST APPEAL AS OF RIGHT, THE ONLY ISSUE
BEFORE US.  WE DID NOT DEAL WITH THE APPOINTMENT OF COUNSEL FOR LATER
LEVELS OF DISCRETIONARY REVIEW, EITHER TO THE HIGHER STATE COURTS OR TO
THIS COURT, BUT WE NOTED THAT "THERE CAN BE NO EQUAL JUSTICE WHERE THE
KIND OF AN APPEAL A MAN ENJOYS 'DEPENDS ON THE AMOUNT OF MONEY HE
HAS.'"  ID., AT 355. 

CHIEF JUDGE HAYNSWORTH COULD FIND "NO LOGICAL BASIS FOR
DIFFERENTIATION BETWEEN APPEALS OF RIGHT AND PERMISSIVE REVIEW
PROCEDURES IN THE CONTEXT OF THE CONSTITUTION AND THE RIGHT TO
COUNSEL."  483 F.2D, AT 653.  MORE FAMILIAR WITH THE FUNCTIONING OF THE
NORTH CAROLINA CRIMINAL JUSTICE SYSTEM THAN ARE WE, HE CONCLUDED THAT
"IN THE CONTEXT OF CONSTITUTIONAL QUESTIONS ARISING IN CRIMINAL
PROSECUTIONS, PERMISSIVE REVIEW IN THE STATE'S HIGHEST COURT MAY BE
PREDICTABLY THE MOST MEANINGFUL REVIEW THE CONVICTION WILL RECEIVE." 
IBID.  THE NORTH CAROLINA COURT OF APPEALS, FOR EXAMPLE, WILL BE
CONSTRAINED IN DIVERGING FROM AN EARLIER OPINION OF THE STATE SUPREME
COURT, EVEN IF SUBSEQUENT DEVELOPMENTS HAVE RENDERED THE EARLIER
SUPREME COURT DECISION SUSPECT.  "(THE STATE'S HIGHEST COURT REMAINS
THE ULTIMATE ARBITER OF THE RIGHTS OF ITS CITIZENS."  IBID. 

CHIEF JUDGE HAYNSWORTH ALSO CORRECTLY OBSERVED THAT THE INDIGENT
DEFENDANT PROCEEDING WITHOUT COUNSEL IS AT A SUBSTANTIAL DISADVANTAGE
RELATIVE TO WEALTHY DEFENDANTS REPRESENTED BY COUNSEL WHEN HE IS FORCED
TO FEND FOR HIMSELF IN SEEKING DISCRETIONARY REVIEW FROM THE STATE
SUPREME COURT OR FROM THIS COURT.  IT MAY WELL NOT BE ENOUGH TO ALLEGE
ERROR IN THE COURTS BELOW IN LAYMAN'S TERMS; A MORE SOPHISTICATED
APPROACH MAY BE DEMANDED:  /1/ 

     "AN INDIGENT DEFENDANT IS AS MUCH IN NEED OF THE ASSISTANCE OF

  A LAWYER IN PREPARING AND FILING A PETITION FOR CERTIORARI AS HE

  IS IN THE HANDLING OF AN APPEAL AS OF RIGHT.  IN MANY APPEALS, AN

  ARTICULATE DEFENDANT COULD FILE AN EFFECTIVE BRIEF BY TELLING HIS

  STORY IN SIMPLE LANGUAGE WITHOUT LEGALISMS, BUT THE TECHNICAL

  REQUIREMENTS FOR APPLICATIONS FOR WRITS OF CERTIORARI ARE HAZARDS

  WHICH ONE UNTRAINED IN THE LAW COULD HARDLY BE EXPECTED TO

  NEGOTIATE. 

 "'CERTIORARI PROCEEDINGS CONSTITUTE A HIGHLY SPECIALIZED ASPECT

  OF APPELLATE WORK.  THE FACTORS WHICH (A COURT) DEEMS IMPORTANT

  IN CONNECTION WITH DECIDING WHETHER TO GRANT CERTIORARI ARE

  CERTAINLY NOT WITHIN THE NORMAL KNOWLEDGE OF AN INDIGENT

  APPELLANT.  BOSKEY, THE RIGHT TO COUNSEL IN APPELLATE

  PROCEEDINGS, 45 MINN. L. REV. 783, 797 (1961) (FOOTNOTE

  OMITTED)9'"  483 F.2D, AT 653. 

FURTHERMORE, THE LAWYER WHO HANDLED THE FIRST APPEAL IN A CASE WOULD BE
FAMILIAR WITH THE FACTS AND LEGAL ISSUES INVOLVED IN THE CASE.  IT
WOULD BE A RELATIVELY EASY MATTER FOR THE ATTORNEY TO APPLY HIS
EXPERTISE IN FILING A PETITION FOR DISCRETIONARY REVIEW TO A HIGHER
COURT, OR TO ADVISE HIS CLIENT THAT SUCH A PETITION WOULD HAVE NO
CHANCE OF SUCCEEDING. 

DOUGLAS V. CALIFORNIA WAS GROUNDED ON CONCEPTS OF FAIRNESS AND
EQUALITY.  THE RIGHT TO DISCRETIONARY REVIEW IS A SUBSTANTIAL ONE, AND
ONE WHERE A LAWYER CAN BE OF SIGNIFICANT ASSISTANCE TO AN INDIGENT
DEFENDANT.  IT WAS CORRECTLY PERCEIVED BELOW THAT THE "SAME CONCEPTS OF
FAIRNESS AND EQUALITY, WHICH REQUIRE COUNSEL IN A FIRST APPEAL OF
RIGHT, REQUIRE COUNSEL IN OTHER AND SUBSEQUENT DISCRETIONARY APPEALS." 
ID., AT 655. 

/1/  AN INDIGENT DEFENDANT PROCEEDING WITHOUT THE ASSISTANCE OF
COUNSEL WOULD BE ATTEMPTING TO SATISFY ONE OF THREE STATUTORY STANDARDS
FOR REVIEW WHEN SEEKING CERTIORARI FROM THE NORTH CAROLINA SUPREME
COURT: 

"(1) THE SUBJECT MATTER OF THE APPEAL HAS SIGNIFICANT PUBLIC
INTEREST, OR 

"(2) THE CAUSE INVOLVES LEGAL PRINCIPLES OF MAJOR SIGNIFICANCE TO
THE JURISPRUDENCE OF THE STATE, OR 

"(3) THE DECISION OF THE COURT OF APPEALS APPEARS LIKELY TO BE IN
CONFLICT WITH A DECISION OF THE SUPREME COURT."  N.C. GEN. STAT. 7A -
31 (C).  IT SEEMS LIKELY THAT ONLY THE THIRD WOULD HAVE BEEN EXPLORED
IN A BRIEF ON THE MERITS BEFORE THE COURT OF APPEALS, AND THE INDIGENT
DEFENDANT WOULD DRAW LITTLE ASSISTANCE FROM THAT BRIEF IN ATTEMPTING TO
SATISFY EITHER OF THE FIRST TWO STANDARDS. 

RULE 19 OF THIS COURT PROVIDES SOME GUIDELINES FOR THE EXERCISE OF
OUR CERTIORARI JURISDICTION, INCLUDING DECISIONS BY A STATE COURT ON
FEDERAL QUESTIONS NOT PREVIOUSLY DECIDED BY THIS COURT; BUT IT MAY NOT
BE ENOUGH SIMPLY TO ASSERT THAT THERE WAS ERROR IN THE DECISION OF TE
COURT BELOW.  CF. MAGNUM IMPORT CO. V. COTY, 262 U.S. 159, 163. 
MOREOVER, THIS COURT IS GREATLY AIDED BY BRIEFS PREPARED WITH ACCURACY,
BREVITY, AND CLARITY IN ITS DETERMINATION OF WHETHER CERTIORARI SHOULD
BE GRANTED.  SEE FURNESS, WITHY & CO. V. YANG-TSZE INSURANCE ASSN., 242
U.S. 430, 434. 

JACOB L. SAFRON, ASSISTANT ATTORNEY GENERAL OF NORTH CAROLINA,
ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE BRIEF WAS ROBERT
MORGAN, ATTORNEY GENERAL. 

THOMAS B. ANDERSON, JR., BY APPOINTMENT OF THE COURT, 415 U.S. 909,
ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY ROBERT L.
SHEVIN, ATTORNEY GENERAL, AND ENOCH J. WHITNEY, ASSISTANT ATTORNEY
GENERAL, FOR THE STATE OF FLORIDA; BY WILLIAM J. SCOTT, ATTORNEY
GENERAL, AND JAMES B. ZAGEL, ASSISTANT ATTORNEY GENERAL, FOR THE STATE
OF ILLINOIS; AND BY ANDREW P. MILLER, ATTORNEY GENERAL, AND ROBERT E.
SHEPHERD, JR., ASSISTANT ATTORNEY GENERAL, FOR THE COMMONWEALTH OF
VIRGINIA. 

MARSHALL J. HARTMAN AND JAMES F. FLUG FILED A BRIEF FOR THE NATIONAL
LEGAL AID AND DEFENDER ASSN. AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :


















MOODY V. ALBEMARLE PAPER CO., 417 U.S. 622 


       MOODY ET AL. V. ALBEMARLE PAPER CO. ET AL.

  CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 73 - 899.  DECIDED JUNE 17, 1974 


    ALTHOUGH 28 U.S.C. 46 (C) PROVIDES THAT A RETIRED CIRCUIT JUDGE

  MAY SIT ON AN IN BANC COURT REHEARING A CASE IN WHICH HE

  PARTICIPATED AT THE ORIGINAL HEARING, ONLY REGULAR ACTIVE SERVICE

  CIRCUIT JUDGES ARE VESTED WITH AUTHORITY TO VOTE WHETHER TO

  REHEAR A CASE IN BANC. 

PER CURIAM. 

APPEALS FROM THE JUDGMENTS OF THE TRIAL COURTS IN TWO CASES WERE
HEARD AND DETERMINED BY TWO SEPARATE THREE-JUDGE DIVISIONS OF THE COURT
OF APPEALS FOR THE FOURTH CIRCUIT.  SITTING BY DESIGNATION AS MEMBERS
OF EACH OF THE DIVISIONS WERE SENIOR JUDGES OF THE FOURTH CIRCUIT.  /1/
FOLLOWING DECISIONS BY BOTH DIVISIONS, THE UNSUCCESSFUL PARTIES
PETITIONED FOR REHEARINGS IN BANC PURSUANT TO 28 U.S.C. 46 (C):  /2/ 

"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 REGULAR ACTIVE

  SERVICE.  A COURT IN BANC SHALL CONSIST OF ALL CIRCUIT JUDGES IN

  REGULAR ACTIVE SERVICE.  A CIRCUIT JUDGE OF THE CIRCUIT WHO HAS

  RETIRED FROM REGULAR ACTIVE SERVICE SHALL ALSO BE COMPETENT TO

  SIT AS A JUDGE OF THE COURT IN BANC IN THE REHEARING OF A CASE OR

CONTROVERSY IF HE SAT IN THE COURT OR DIVISION AT THE ORIGINAL

  HEARING THEREOF." 

IT HAD BEEN THE PRACTICE OF THE FOURTH CIRCUIT TO COUNT THE VOTES OF
THEIR SENIOR JUDGES WHO WERE MEMBERS OF THE ORIGINAL HEARING DIVISION
WHEN THE COURT ACTED ON THE QUESTION WHETHER TO ORDER A REHEARING IN
BANC.  IN THOSE CASES, HOWEVER, THE VOTES OF THE SENIOR JUDGES WERE NOT
CRUCIAL.  CERTIFICATE 3.  HERE, THEIR VOTES ARE CRUCIAL.  IN MOODY,
WHILE A "MAJORITY OF THE CIRCUIT JUDGES OF THE CIRCUIT WHO ARE IN
REGULAR ACTIVE SERVICE" DID NOT VOTE FOR A REHEARING IN BANC, THE TWO
SENIOR JUDGES WHO SAT ON THE DIVISION BY DESIGNATION DID SO VOTE; THEIR
VOTES, IF COUNTED, WOULD MAKE A MAJORITY FOR REHEARING.  IN WILLIAMS,
WHILE A MAJORITY OF CIRCUIT JUDGES IN REGULAR ACTIVE SERVICE DID VOTE
FOR A REHEARING IN BANC, THE SENIOR JUDGE WHO SAT ON THE ORIGINAL
DIVISION BY DESIGNATION VOTED AGAINST REHEARING; WITH HIS VOTE COUNTED
THE REHEARING WOULD FAIL BY AN EQUAL DIVISION OF THOSE VOTING. 

ACCORDINGLY, ALL CIRCUIT JUDGES OF THE FOURTH CIRCUIT IN REGULAR
ACTIVE SERVICE AND BOTH SENIOR JUDGES OF THE CIRCUIT HAVE, PURSUANT TO
28 U.S.C. 1254 (3), CERTIFIED TO US THE QUESTION WHETHER A SENIOR JUDGE
OF THE CIRCUIT WHO WAS A MEMBER OF THE ORIGINAL DIVISION HEARING A CASE
MAY VOTE TO DETERMINE WHETHER THE CASE SHOULD BE REHEARD IN BANC. 
BECAUSE OF THE IMPORTANCE OF THE QUESTION TO THE ADMINISTRATION OF
JUDICIAL BUSINESS IN THE CIRCUITS, AS WELL AS TO THE PARTIES IN THE TWO
CASES PENDING IN THE FOURTH CIRCUIT, WE GRANTED LEAVE TO AND INVITED
THOSE PARTIES TO FILE BRIEFS IN RESPONSE TO THE QUESTION CERTIFIED. 
UPON CONSIDERATION OF THE QUESTION AND THE BRIEFS FILED BY THE
LITIGANTS ON BOTH SIDES OF BOTH PENDING CASES, WE CONCLUDE THAT THE
ANSWER SHOULD BE IN THE NEGATIVE; SENIOR CIRCUIT JUDGES WHO ARE MEMBERS
OF THE ORIGINALLY ASSIGNED DIVISION HEARING A CASE ARE NOT AUTHORIZED
BY CONGRESS TO PARTICIPATE IN THE DETERMINATION WHETHER TO REHEAR THAT
CASE IN BANC. 

THE POWER OF COURTS OF APPEALS TO HEAR OR REHEAR CASES IN BANC WAS
FIRST DETERMINED IN TEXTILE MILLS CORP. V. COMMISSIONER, 314 U.S. 326
(1941).  IN 1948, CONGRESS PROVIDED LEGISLATIVE RATIFICATION OF TEXTILE
MILLS BY ENACTING 46 (C) OF THE JUDICIAL CODE, WHICH THEN PROVIDED THAT
HEARINGS OR REHEARINGS BEFORE COURTS OF APPEALS IN BANC WERE TO BE 

"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."  28 U.S.C. 46 (C) (1952 ED.). 

IN THE WESTERN PACIFIC RAILROAD CASE, 345 U.S. 247 (1953), THE COURT
HAD OCCASION TO CONSTRUE THE 1948 STATUTE, AND DETERMINED THAT IT WAS A
GRANT OF POWER TO THE COURTS OF APPEALS TO ORDER HEARINGS OR REHEARINGS
IN BANC, NOT THE CREATION OF A RIGHT IN LITIGANTS TO COMPEL SUCH
HEARINGS OR REHEARINGS OR EVEN TO COMPEL THE COURT TO VOTE ON THE
QUESTION OF HEARING OR REHEARING.  THE COURT ALSO ADDRESSED ITSELF TO
THE PROCEDURE GOVERNING THE EXERCISE OF THIS POWER, HOLDING THAT EACH
COURT OF APPEALS WAS "LEFT FREE TO DEVISE ITS OWN ADMINISTRATIVE
MACHINERY TO PROVIDE THE MEANS WHEREBY A MAJORITY MAY ORDER SUCH A
HEARING."  /3/  ID., AT 250.  THIS DISCRETION HAS BEEN SUBSEQUENTLY
CONFIRMED.  SHENKER V. BALTIMORE & OHIO R. CO., 374 U.S. 1, 5 (1963);
UNITED STATES V. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685, 688
(1960). 

IN ONE OF THESE LATTER CASES, AMERICAN-FOREIGN, A QUESTION AROSE
UNDER THE LANGUAGE OF THE 1948 STATUTE WHETHER, IF REHEARING IN BANC
WAS VOTED, SENIOR JUDGES WERE ELIGIBLE TO PARTICIPATE IN THE DECISION
OF THAT CASE ON THE MERITS.  THE COURT HELD THAT SENIOR JUDGES WERE NOT
ELIGIBLE TO SIT.  CONGRESS IN 1963 THEN ENACTED THE PRESENT VERSION OF
46 (C), WHICH PROVIDES THAT A SENIOR JUDGE WHO SAT ON THE ORIGINAL
DIVISION HEARING A CASE IS "COMPETENT TO SIT AS A JUDGE OF THE COURT IN
BANC"  IN THE MERITS REHEARING OF THE CASE.  BUT THE LANGUAGE OF THE
STATUTE CONCERNING HOW THE COURT ORDERS A REHEARING IN BANC WAS NOT
CHANGED, EXCEPT TO REINFORCE THE LIMITATION ON THE GRANT OF POWER BY
ADDING "REGULAR" BEFORE "ACTIVE SERVICE," SHARPENING THE DEFINITION OF
WHICH JUDGES MAY PARTICIPATE IN ORDERING A HEARING OR REHEARING IN
BANC. 

THE LANGUAGE OF THE PRESENT STATUTE THUS CONFINES THE POWER TO ORDER
A REHEARING IN BANC TO THOSE CIRCUIT JUDGES WHO ARE IN "REGULAR ACTIVE
SERVICE."  ALTHOUGH, AS THE COURT HAS HELD, THOSE JUDGES ARE LARGELY
FREE TO DEVISE WHATEVER PROCEDURES THEY CHOOSE TO INITIATE THE PROCESS
OF DECISION TO ORDER SUCH A REHEARING, AND TO DECIDE WHO MAY
PARTICIPATE IN THOSE PRELIMINARY PROCEDURES, SEE N. 3, SUPRA, NEITHER
THE COURT NOR CONGRESS HAS SUGGESTED THAT ANY OTHER THAN A REGULAR
ACTIVE SERVICE JUDGE IS ELIGIBLE TO PARTICIPATE IN THE MAKING OF THE
DECISION WHETHER TO HEAR OR REHEAR A CASE IN BANC.  OBVIOUSLY SUCH A
DECISION CAN BE REACHED ONLY BY VOTING.  AS REVEALED BY THE DECISIONAL
AND STATUTORY EVOLUTION OF THE INSTITUTION OF THE IN BANC COURT, THE
ELIGIBILITY OF SENIOR JUDGES FOR PARTICIPATION THEREIN HAS BEEN THE
EXCEPTION, NOT THE RULE.  WE ARE NOT AT LIBERTY TO ENGRAFT UPON THE
STATUTE A MEANING INCONSISTENT WITH ITS HISTORICAL LIMITATIONS. 

INDEED, THE VERY PURPOSE OF THE IN BANC COURT SUPPORTS OUR
CONCLUSION THAT SENIOR JUDGES HAVE NOT BEEN AUTHORIZED BY IMPLICATION
TO PARTICIPATE IN ORDERING A HEARING OR REHEARING IN BANC.  AS THE
FEDERAL RULE INDICATES, SUPRA, N. 2, THE IN BANC COURT IS NORMALLY
RESERVED FOR QUESTIONS OF EXCEPTIONAL IMPORTANCE, OR TO SECURE OR
MAINTAIN UNIFORMITY OF DECISION WITHIN THE CIRCUIT.  IN THE WISE USE OF
THIS EXCEPTIONAL POWER TO "'DETERMINE THE MAJOR DOCTRINAL TRENDS OF THE
FUTURE'" FOR A PARTICULAR CIRCUIT, AMERICAN-FOREIGN, 363 U.S., AT 690,
CONGRESS APPEARS TO HAVE CONTEMPLATED THE NEED FOR AN INTIMATE AND
CURRENT WORKING KNOWLEDGE OF, AMONG OTHER THINGS, THE DECISIONS OF THE
CIRCUIT, ITS PENDING CASES, AND THE MAGNITUDE AND NATURE OF ITS FUTURE
WORKLOAD.  SENIOR JUDGES PROVIDE A JUDICIAL RESOURCE OF EXTRAORDINARY
VALUE BY THEIR WILLINGNESS TO UNDERTAKE IMPORTANT ASSIGNMENTS "WITHOUT
ECONOMIC INCENTIVE OF ANY KIND."  ID., AT 688 N. 4.  CONSISTENT
THEREWITH, CONGRESS HAS PROVIDED THAT WHEN A SENIOR JUDGE HAS
PARTICIPATED IN THE ORIGINAL DIVISION HEARING, SUCH SENIOR JUDGE MAY
LATER SIT ON AN IN BANC COURT REHEARING THAT CASE; THIS WAS THE PURPOSE
OF THE 1963 AMENDMENT TO THE JUDICIAL CODE.  BUT VOTING ON THE MERITS
OF AN IN BANC CASE IS QUITE DIFFERENT FROM VOTING WHETHER TO REHEAR A
CASE IN BANC, WHICH IS ESSENTIALLY A POLICY DECISION OF JUDICIAL
ADMINISTRATION.  CONGRESS VESTED THIS LATTER AUTHORITY AND
RESPONSIBILITY EXCLUSIVELY IN "CIRCUIT JUDGES OF THE CIRCUIT WHO ARE IN
REGULAR ACTIVE SERVICE," 28 U.S.C. 46 (C); BECAUSE OF THEIR DIFFERENT
NATURE, WE CANNOT ASSUME THE GRANT OF AUTHORITY TO DO ONE INCLUDES
AUTHORITY TO DO THE OTHER. 

THE QUESTION CERTIFIED TO US IS THEREFORE ANSWERED IN THE NEGATIVE. 
/4/ 

/1/  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT IS COMPOSED OF
SEVEN JUDGES IN REGULAR ACTIVE SERVICE, 28 U.S.C. 44, AND TWO JUDGES
WHO HAVE RETIRED FROM THAT SERVICE BUT REMAIN AVAILABLE FOR DUTIES AS
DESIGNATED AND ASSIGNED, KNOWN AS SENIOR JUDGES, 28 U.S.C. 294(B).  IN
MOODY V. ALBEMARLE PAPER CO., BOTH OF THOSE SENIOR JUDGES WERE
DESIGNATED MEMBERS OF THE THREE-JUDGE DIVISION WHICH ORIGINALLY DECIDED
THAT APPEAL, SEE 474 F.2D 134; IN WILLIAMS V. ALBEMARLE CITY BOARD OF
EDUCATION, ONE OF THE SENIOR JUDGES WAS SO DESIGNATED, SEE 485 F.2D
232; 28 U.S.C. 294(C). 

/2/  FED. RULE APP. PROC. 35 PROVIDES IN PART: 

"(A) WHEN HEARING OR REHEARING IN BANC WILL BE ORDERED.  A MAJORITY
OF THE CIRCUIT JUDGES WHO ARE IN REGULAR ACTIVE SERVICE MAY ORDER THAN
AN APPEAL OR OTHER PROCEEDING BE HEARD OR REHEARD BY THE COURT OF
APPEALS IN BANC.  SUCH A HEARING OR REHEARING IS NOT FAVORED AND
ORDINARILY WILL NOT BE ORDERED EXCEPT (1) WHEN CONSIDERATION BY THE
FULL COURT IS NECESSARY TO SECURE OR MAINTAIN UNIFORMITY OF ITS
DECISIONS, OR (2) WHEN THE PROCEEDING INVOLVES A QUESTION OF
EXCEPTIONAL IMPORTANCE. 

"(B) SUGGESTION OF A PARTY FOR HEARING OR REHEARING IN BANC.  A
PARTY MAY SUGGEST THE APPROPRIATENESS OF A HEARING OR REHEARING IN
BANC.  THE CLERK SHALL TRANSMIT ANY SUCH SUGGESTION TO THE JUDGES OF
THE COURT WHO ARE IN REGULAR ACTIVE SERVICE BUT A VOTE WILL NOT BE
TAKEN TO DETERMINE WHETHER THE CAUSE SHALL BE HEARD OR REHEARD IN BANC
UNLESS A JUDGE IN REGULAR ACTIVE SERVICE OR A JUDGE WHO WAS A MEMBER OF
THE PANEL THAT RENDERED A DECISION SOUGHT TO BE REHEARD REQUESTS A VOTE
ON SUCH A SUGGESTION MADE BY A PARTY." 

/3/  THE MACHINERY DEVISED BY THE NINTH CIRCUIT IN THAT CASE WAS ONE
WHICH GOVERNED THE INITIATION OF THE POLLING OF THE COURT TO DETERMINE
WHETHER IT SHOULD HEAR OR REHEAR A CASE IN BANC.  ALTHOUGH THERE WAS
SOME UNCERTAINTY WHETHER INDEED THE NINTH CIRCUIT HAD PROVIDED SUCH
MACHINERY, 345 U.S. 247, 263, ITS NATURE WAS TO DELEGATE TO THE THREE
JUDGE DIVISION FIRST HEARING THE CASE THE POWER TO INITIATE A POLL OF
THE COURT.  ID., AT 259.  TWO OF THE JUDGES WHO WERE MEMBERS OF THE
DIVISION IN THAT CASE WERE DISTRICT JUDGES.  ID., AT 263.  THIS
MACHINERY WAS SIMILAR IN KIND TO THAT NOW SET FORTH IN FED. RULE APP.
PROC. 35 (B), SUPRA, N. 2, BY WHICH A VOTE TO HEAR OR REHEAR A CASE IN
BANC WILL NOT BE TAKEN UNLESS SUCH A VOTE IS REQUESTED BY A JUDGE IN
REGULAR ACTIVE SERVICE, OR A JUDGE WHO WAS A MEMBER OF THE DIVISION
THAT RENDERED A DECISION SOUGHT TO BE REHEARD. 

/4/  THE ONLY OTHER COURTS OF APPEALS WHICH HAVE DISCUSSED THE ISSUE
HAVE RULED SIMILARLY.  ZAHN V. INTERNATIONAL PAPER CO., 469 F.2D 1033,
1040 - 1042 (CA2 1972) (STATEMENTS AND DISSENT UPON DENIAL OF REHEARING
IN BANC); ALLEN V. JOHNSON, 391 F.2D 527, 532 (CA5 1968) (IN BANC). 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















MOBIL OIL V. F.P.C., 417 U.S. 283 


       MOBIL OIL CORP. V. FEDERAL POWER COMMISSION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 73 - 437.  ARGUED APRIL 17, 1974--DECIDED JUNE 10,
1974;

/1/  483 F.2D 880 AFFIRMED. 

/1/  TOGETHER WITH NO. 73-457, PUBLIC SERVICE COMMISSION OF NEW YORK
V. FEDERAL POWER COMMISSION ET AL., AND NO. 73-464, MUNICIPAL
DISTRIBUTORS GROUP V. FEDERAL POWER COMMISSION ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 


    THE FEDERAL POWER COMMISSION (FPC) INSTITUTED A PROCEEDING IN

  1961 TO ESTABLISH AN AREA RATE STRUCTURE FOR INTERSTATE SALES OF

  NATURAL GAS PRODUCED IN THE SOUTHERN LOUISIANA AREA.  AFTER

  EXTENSIVE HEARINGS THE FPC IN 1968 ISSUED AN ORDER ESTABLSHING

  CEILING RATES FOR GAS SOLD BY PRODUCERS IN THE AREA AND ORDERING

  REFUNDS OF RATES IN EXCESS OF THE MAXIMUM THAT HAD BEEN COLLECTED

  PRIOR TO THE ORDER.  THE COURT OF APPEALS UPHELD THE ORDER, BUT

  DECLARED THAT THE AFFIRMANCE WAS NOT BE BE INTERPRETED TO

FORECLOSE THE FPC FROM MAKING SUCH CHANGES IN ITS ORDER, AS TO

  BOTH PAST AND FUTURE RATES, AS IF FOUND TO BE IN THE PUBLIC

  INTEREST.  IN RESPONSE TO PETITIONS FOR REHEARING URGING THAT THE

  FPC'S AUTHORITY TO MODIFY ITS ORDER, AFTER AFFIRMANCE BY THE

  COURT, COULD BE EXERCISED ONLY PROSPECTIVELY, THE COURT OF

  APPEALS STATED THAT "(WE WISH TO MAKE CRYSTAL CLEAR THE AUTHORITY

  OF THE COMMISSION IN THIS CASE TO REOPEN ANY PART OF ITS ORDER

  THAT CIRCUMSTANCES REQUIRE BE OPENED," THAT "(THE COMMISSION CAN

  MAKE RETROSPECTIVE AS WELL AS PROSPECTIVE ADJUSTMENTS IN THIS

  CASE IF IT FINDS THAT IT IS IN THE PUBLIC INTEREST TO DO SO,"

  AND THAT IF "THE REFUNDS ARE TOO BURDENSOME IN LIGHT OF NEW

  EVIDENCE TO BE IN THE PUBLIC INTEREST . . . THE COMMISSION SHALL

  HAVE THE POWER AND THE DUTY TO REMEDY THE SITUATION BY CHANGING

  ITS ORDERS."  THE FPC THERRUPON REOPENED THE 1961 PROCEEDING, AND

  AFTER CONSIDERING A SETTLEMENT PROPOSAL THAT HAD BEEN AGREED TO

  BY A LARGE MAJORITY OF THE PARTIES, ISSUED AN ORDER IN 1971

  ESTABLISHING A NEW RATE STRUCTURE FOR THE SOUTHERN LOUISIANA AREA

  SUPERSEDING THE 1968 ORDER.  THIS 1971 ORDER ESTABLISHED, INTER

 ALIA, (1) HIGHER CEILING RATES FOR BOTH "FLOWING" OR "FIRST

  VINTAGE" GAS (GAS DELIVERED AFTER THE ORDER'S EFFECTIVE DATE

  UNDER CONTRACTS DATED PRIOR TO OCTOBER 1, 1968), AND "NEW" OR

  "SECOND VINTAGE" GAS (GAS DELIVERED AFTER THE ORDER'S EFFECTIVE

  DATE UNDER CONTRACTS DATED AFTER OCTOBER 1, 1968); (2) TWO

  INCENTIVE PROGRAMS ONE PROVIDING FOR REFUND WORKOFF CREDITS BASED

  ON A REFUND OBLIGOR'S COMMITMENT OF ADDITIONAL GAS RESERVES TO

  THE INTERSTATE MARKET (THE PRODUCER BEING REQUIRED TO OFFER AT

  LEAST 50% OF THE NEW RESERVES TO THE PURCHASER TO WHOM THE REFUND

WOULD OTHERWISE BE PAYABLE), AND THE OTHER PROVIDING FOR THE

  CONTINGENT ESCALATION OF RATES BASED ON NEW DEDICATIONS OF GAS TO

  THE MARKET; (3) MINIMUM RATES TO BE PAID BY PRODUCERS TO

  PIPELINES FOR TRANSPORTATION OF LIQUIDS AND LIQUEFIABLE

  HYDROCARBONS; AND (4) A MORATORIUM UPON THE FILING OF RATE

  INCREASES FOR FLOWING GAS UNTIL OCTOBER 1, 1976, AND FOR NEW GAS

  UNTIL OCTOBER 1, 1977.  THE COURT OF APPEALS UPHELD THIS ORDER AS

  AN APPROPRIATE EXERCISE OF ADMINISTRATIVE DISCRETION SUPPORTED BY

  SUBSTANTIAL EVIDENCE ON THE AUTHORITY OF PERMIAN BASIN AREA RATE

  CASES, 390 U.S. 747.  HELD: 

     1.  THE FPC HAD THE STATUTORY AUTHORITY TO ADOPT THE 1971

  ORDER, NOTWITHSTANDING THE COURT OF APPEALS' AFFIRMANCE OF THE

  1968 ORDER.  PP. 310 - 315. 

     (A) UNDER CIRCUMSTANCES WHERE THE COURT OF APPEALS'
AFFIRMANCE

  OF THE 1968 ORDER WAS NOT "UNQUALIFIED" OR FINAL, AND SUCH ORDER

  HAD NOT BEEN MADE EFFECTIVE BUT WAS STAYED UNTIL WITHDRAWN IN THE

  1971 ORDER, THE COURT OF APPEALS' ACTION IN AUTHORIZING THE FPC

  TO REOPEN THE 1968 ORDER DID NOT EXCEED THE COURT'S POWERS UNDER

19(B) OF THE NATURAL GAS ACT "TO AFFIRM, MODIFY, OR SET ASIDE

  (AN) ORDER IN WHOLE OR IN PART," OR CONSTITUTE AN IMPROPER

  EXERCISE OF THE COURT'S EQUITY POWERS WITH WHICH IT IS VESTED IN

  REVIEWING FPC ORDERS.  PP. 310 - 312. 

 (B) TE FACT THAT THE SETTLEMENT PROPOSAL LACKED UNANIMOUS

  AGREEMENT OF THE PARTIES DID NOT PRECLUDE THE FPC FROM ADOPTING

  THE PROPOSAL AS AN ORDER ESTABLISHING JUST AND REASONABLE RATES,

  SINCE THE FPC CLEARLY HAD THE POWER TO ADMIT THE AGREEMENT INTO

  THE RECORD, AND INDEED WAS OBLIGATED TO CONSIDER IT.  PP. 312 -

  314. 

     (C) THE FACT THAT THE COURT OF APPEALS' OPINION ON REHEARING

  REGARDING THE 1968 ORDER AUTHORIZED MODIFICATION OF THE 1968

REFUND PROVISIONS IF THE REFUNDS "ARE TOO BURDENSOME IN LIGHT OF

  NEW EVIDENCE TO BE IN THE PUBLIC INTEREST," DID NOT REQUIRE THE

  FPC, BEFORE REVISING THE REFUND TERMS, TO FIND, BASED ON

  SUBSTANTIAL NEW EVIDENCE, THAT THE REFUNDS "WOULD SUBSTANTIALLY

  AND ADVERSELY AFFECT THE PRODUCERS' ABILITY TO MEET THE

  CONTINUING GAS NEEDS OF THE INTERSTATE MARKET," SINCE THE OPINION

  ON REHEARING WAS EXPLICIT THAT THE FPC WAS TO HAVE "GREAT

  FLEXIBILITY" AND COULD MAKE RETROSPECTIVE AS WELL AS PROSPECTIVE

  ADJUSTMENTS; MOREOVER, THE COURT OF APPEALS FLATLY REJECTED "THE

  NOTION THAT THE LABEL 'AFFIRMANCE' COULD POSSIBLY IMPAIR FPC'S

ABILITY TO ALTER OR MODIFY ANY OF THE PROVISIONS, PARTICULARLY

  THE REFUND PROVISIONS" OF THE 1968 ORDER.  PP. 314 - 315. 

     2.  PETITIONERS' CHALLENGES TO THE ESTABLIISHED PRICE LEVELS

  UNDER THE 1971 ORDER ARE WITHOUT MERIT.  PP. 315 - 321. 

     (A) MOBIL'S ATTACK ON THE FPC'S EVIDENCE OF COSTS IS CLEARLY

  FRIVOLOUS, SINCE THE FPC TOOK EXTENSIVE EFIDENCE OF COSTS IN ITS

  1968 ORDER HEARINGS FOR FLOWING GAS AND IN BOTH ITS 1968 AND 1971

  HEARINGS FOR NEW GAS, AND SINCE THE FRAGMENTS OF THE RECORD CITED

  BY MOBIL DO NOT SUSTAIN ITS HEAVY BURDEN OF SHOWING THAT THE

FPC'S CHOICE WAS OUTSIDE WHAT THE COURT OF APPEALS COULD HAVE

  FOUND TO BE WITHIN THE FPC'S AUTHORITY.  P. 316. 

(B) WITH RESPECT TO MOBIL'S ARGUMENT THAT INCLUSION OF REFUND

  WORKOFF CREDITS AND CONTINGENT ESCALATIONS IN THE JUST AND

  REASONABLE RATES INDICATES THAT PRODUCERS UNABLE TO GAIN PART OR

  ALL OF THEIR SHARE OF SUCH PAYMENTS WILL RECEIVE MERELY THEIR

  "BARE-BONES" COSTS, WHICH CONSTITUTE ILLEGALLY LOW PRICES, THE

  COURT OF APPEALS DID NOT ERR IN DECIDING THAT IT WAS WITHIN THE

  FPC'S DISCRETION AND EXPERTISE TO CONCLUDE THAT THE REFUND

  WORKOFF CREDITS AND CONTINGENT ESCALATIONS COULD PROVIDE AN

  OPPORTUNITY FOR INCREASED PRICES THAT WOULD HELP IN GENERATING

  CAPITAL FUNDS AND IN MEETING RISING COSTS, WHILE ASSURING THAT

SUCH INCREASES WILL NOT BE LEVIED UPON CONSUMERS UNLESS

ACCOMPANIED BY INCREASED SUPPLIES OF GAS.  PP. 316 - 319. 

   (C) NEW YORK'S CONTENTION THAT THE 1971 ORDER RATES FOR FLOWING

  GAS ARE EXCESSIVE IS PREDICATED ON AN ERRONEOUSLY LIMITED VIEW OF

  THE PERMISSIBLE RANGE OF THE FPC'S AUTHORITY.  WHERE THE FPC'S

  JUSTIFICATION FOR INCREASING THE PRICE OF FLOWING GAS WAS THE

  NECESSITY FOR INCREASED REVENUES TO EXPAND FUTURE PRODUCTION,

  RATHER THAN NEW EVIDENCE OF DIFFERING PRODUCTION CONDITIONS, THE

  COURT OF APPEALS, AGAINST THE BACKGROUND OF A SERIOUS AND GROWING

  DOMESTIC GAS SHORTAGE, COULD PROPERLY CONCLUDE THAT THE FPC MIGHT

  REASONABLY DECIDE THAT, AS COMPARED WITH ADJUSTMENTS IN RATE

  CEILINGS TO INDUCE MORE EXPLORATION AND PRODUCTION, ITS

  RESPONSIBILITY TO MAINTAIN ADEQUATE SUPPLIES AT THE LOWEST

  REASONABLE RATE COULD BETTER BE DISCHARGED BY MEANS OF CONTINGENT

  ESCALATION AND REFUND CREDITS.  PP. 319 - 321. 

     3.  THE CLAIMS OF ALL THREE PETITIONERS, WITH RESPECT TO BOTH

  THE CONTINGENT EXCALATIONS ON FLOWING GAS AND THE REFUND CREDITS,

  THAT EVEN IF THE 1971 RATES ARE SUFFICIENT TO SATISFY THE NATURAL

  GAS ACT'S MINIMUM REQUIREMENTS AS TO AMOUNT AND, ON THE BASIS OF

  THE FPC'S CHOSEN METHODOLOGY, ARE SUPPORTED BY SUBSTANTIAL

  EVIDENCE, THEY ARE NEVERTHELESS UNDULY DISCRIMINATORY AND

  THEREFORE UNLAWFUL UNDER 4 AND 5 OF THE ACT, ARE ALSO WITHOUT

  MERIT.  PP. 321 - 327. 

     (A) CONCERNING MOBIL'S ARGUMENT THAT UNDUE DISCRIMINATION

  RESULTS BECAUSE PRODUCERS WHO HAD NOT SETTLED THEIR REFUND

  ABLIGATIONS WILL RECEIVE ADVANTAGES FROM THE CONTINGENT

  ESCALATIONS AND REFUND CREDITS THAT PRODUCERS LIKE MOBIL, WHICH

  DID SETTLE ITS OBLIGATIONS, WILL NOT RECEIVE, IT CANNOT BE SAID

  THAT THE COURT OF APPEALS MISAPPREHENDED OR GROSSLY MISAPPLIED

 THE SUBSTANTIAL-EVIDENCE STANDARD IN CONCLUDING THAT THE FPC'S

  ASSESSMENT OF THE NEED FOR REFUND CREDITS, COMPARED TO THE COSTS

  AND BENEFITS OF SOME OTHER SCHEME, WAS ADEQUATELY SUPPORTED.  PP.

  321 - 325. 

     (B) THOUGH NEW YORK AND MDG ARGUE THAT THE REFUND CREDIT

  FORMULA DISCRIMINATES AGAINST PTPELING PURCHASERS BECAUSE IT

  PERMITS PRODUCERS TO WORK OFF REFUNDS BY OFFERING 50%, RATHER

THAN 100%, OF THE NEW RESERVES TO PIPELING PURCHASERS OTHER THAN

  THOSE OWED THE REFUNDS, THE COURT OF APPEALS DID NOT ERR IN

  HOLDING THAT THE REFUND CREDIT PROVISION, THE PURPOSE OF WHICH

  WAS TO INCREASE THE SUPPLY OF GAS, WAS WITHIN THE FPC'S

  DISCRETION, SINCE THE FPC COULD REASONABLY CONCLUDE THAT THE

  PRODUCERS'  INCENTIVE TO EXPLORE FOR AND PRODUCE NEW GAS IN THE

  AREA, COULD RESULT IN THEIR DEDICATION OF NEW RESERVES THAT WOULD

  EXCEED IN BENEFIT THE AMOUNT OF THE REFUNDS.  P. 325. 

      (C) WITH RESPECT TO NEW YORK'S ARGUMENT THAT SOME PRODUCERS

  MIGHT ABANDON THEIR NORMAL BUSINESS OF EXPLORING FOR AND

  DEVELOPING NEW RESERVES AND YET ENJOY THE INCREASE IN THEIR

  PRICES FOR FLOWING GAS IF OTHER PRODUCERS CONTRIBUTE SUBSTANTIAL

  ADDITIONAL RESERVES, THE FPC'S BELIEF THAT PRODUCERS ALREADY

  OPERATING IN THE AREA WILL CONTINUE TO DO SO IS AT LEAST AN

  EQUALLY TENABLE JUDGMENT, AND NEW YORK OFFERED NOTHING TO

  OVERCOME THE PRESUMPTION OF VALIDITY ATTACHING TO THE EXERCISE OF

  THE FPC'S EXPERTISE.  PP. 326 - 327. 

     4. THE COURT OF APPEALS' CONCLUSION, CONTRARY TO MOBIL'S

  CONTENTION, THAT THE FPC'S FIXING OF MORATORIA ON NEW RATE

  FILINGS WAS SUPPORTED BY REQUIRED FINDINGS OF FACT AND BY

  SUBSTANTIAL EVIDENCE, DID NOT MISAPPREHEND OR GROSSLY MISAPPLY

  THE SUBSTANTIAL-EVIDENCE STANDARD.  PP. 327 - 328. 

     5.  MOBIL'S ARGUMENT THAT THE FPC IMPROPERLY FAILED TO PROVIDE

  AUTOMATIC ADJUSTMENTS IN AREA RATES TO COMPENSATE FOR ANTICIPATED

  HIGHER ROYALTY COSTS, IS HYPOTHETICAL AT THIS STAGE AND IN ANY

  EVENT AN AFFECTED PRODUCER IS ENTITLED TO SEEK INDIVIDUALIZED

  RELIEF.  P. 328. 

     6.  THE COURT OF APPEALS DID NOT ERR IN CONCLUDING THAT THE
FPC

  "ACTED WITHIN THE BOUNDS OF ADMINISTRATIVE PROPRIETY IN

  ABANDONING"  AS A PRAGMATIC ADJUSTMENT THE DISTINCTION IN MAXIMUM

  PERMISSIBLE RATES BETWEEN CASINGHEAD GAS AND GAS-WELL GAS SO FAR

 AS NEW DEDICATIONS ARE CONCERNED, EVEN THOUGH CASINGHEAD GAS WAS

  FORMERLY TREATED AS A BYPRODUCT OF OIL AND THEREFORE COSTED AND

  PRICED LOWER THAN GAS-WELL GAS.  PP. 328 - 330. 

     7.  IN ARGUING THAT THE MINIMUM RATES PROVIDED BY THE 1971

  ORDER TO BE PAID BY PRODUCERS TO PIPELINES FOR TRANSPORTATION OF

  LIQUIES AND LIQUEFIED HYDROCARBONS ARE NOT SUPPORTED BY

  SUBSTANTIAL EVIDENCE, MOBIL HAS NOT MET ITS BURDEN OF

  DEMONSTRATING THAT THE COURT OF APPEALS MISAPPREHENDED OR GROSSLY

  MISAPPLIED THE SUBSTANTIAL-EVIDENCE STANDARD.  P. 330. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL

  MEMBERS JOINED EXCEPT STEWART AND POWELL, JJ., WHO TOOK NO PART

  IN THE CONSIDERATION OR DECISION OF THE CASES. 

BURTON, W. J. STARK, WARREN M. SPARKS, B. JAMES MCGRAW, ROBERT W.
HENDERSON, WILLIAM A. SACKMANN, JOHN L. WILLIFORD, PAUL W. HICKS,
OLIVER L. STONE, RONALD J. JACOBS, RICHARD F. REMMERS, STANLEY M.
MORLEY, LOUIS FLAX, H.W. VARNER, PAT TIMMONS, SCOTT PL ANGER, KIRK W.
WEINERT, C. FIELDING EARLY, JR., AND GEORGE C. BOND.  RAYMOND N.
SHIBLEY FILED A BRIEF FOR RESPONDENT PIPELINE PURCHASER GROUP IN ALL
CASES.  FRANCIS R. KIRKHAM, JAMES B. ATKIN, WOOLLEN H. WALSHE, JUSTIN
R. WOLF, AND DAVID B. WARD FILED A GRIEF FOR RESPONDENT THE CALIFORNIA
COMPANY, A DIVISION OF CHEVRON OIL CO., IN ALL CASES.  C. WILLIAM
COOPER, TILFORD A. JONES, EDWARD H. GERSTENFIELD, ROBERT CORP, NORMAN
A. FLANINGAM, LAUMAN MARTIN, RICHARD M. MERRIMAN, ELMER NAFZIGER, JON
D. NOLAND, JAMES O'MALLEY, JR., RICHARD A. ROSAN, WILLIAM W. ROSS,
THOMAS C. MATTHEWS, ARTHUR R. SEDER, JR., CHARLES V. SHANNON, JUSTIN A.
STANLEY, AND J. STANLEY STROUD FILED A BRIEF FOR RESPONDENTS UNITED
DISTRIBUTION COMPANIES IN ALL CASES.     MR. JUSTICE BRENNAN DELIVERED
THE OPINION OF THE COURT. 

WE REVIEW HERE THE AFFIRMANCE BY THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT OF A 1971 ORDER OF THE FEDERAL POWER COMMISSION /1/  THAT
ESTABLISHED AN AREA RATE STRUCTURE FOR INTERSTATE SALES /2/  OF NATURAL
GAS PRODUCED IN THE SOUTHERN LOUISIANA AREA.  THE SOUTHERN LOUISIANA
AREA IS ONE OF SEVEN GEOGRAPHICAL AREAS DEFINED BY THE COMMISSION FOR
THE PURPOSE OF PRESCRIBING AREAWIDE PRICE CEILINGS.  /3/  THIS IS THE
SECOND AREA RATE CASE TO REACH THIS COURT.  THE FIRST WAS THE PERMIAN
BASIN AREA RATE CASES, 390 U.S. 747 (1968), IN WHICH THE COURT
SUSTAINED THE CONSTITUTIONAL AND STATUTORY AUTHORITY OF THE COMMISSION
TO ADOPT A SYSTEM OF AREA REGULATION AND TO IMPOSE SUPPLEMENTARY
REQUIREMENTS IN THE DISCHARGE OF ITS RESPONSIBILITIES UNDER 4 AND 5 OF
THE NATURAL GAS ACT /4/  TO DETERMINE WHETHER PRODUCERS' RATES ARE JUST
AND REASONABLE. 

THE COURT OF APPEALS AFFIRMED THE 1971 ORDER IN ITS ENTIRETY AS AN
APPROPRIATE EXERCISE OF ADMINISTRATIVE DISCRETION SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE.  PLACID OIL CO. V. FPC,
483 F. 2D 880 (CA5 1973).  WE GRANTED THE PETITIONS FOR CERTIORARI IN
THESE THREE CASES /5/  TO REVIEW THE CORRECTNESS OF THE COURT OF
APPEALS' HOLDING SUSTAINING THE 1971 ORDER AS IN ALL RESPECTS WITHIN
THE COMMISSION'S STATUTORY POWERS, AND TO DETERMINE WHETHER THE COURT
OF APPEALS MISAPPREHENDED OR GROSSLY MISAPPLIED THE SUBSTANTIAL
EVIDENCE STANDARD.  414 U.S. 1142 (1974).  WE AFFIRM. 

    I 

THE COMMISSION FIRST INSTITUTED PROCEEDINGS TO ESTABLISH AN AREA
RATE STRUCTURE FOR THE SOUTHERN LOUISIANA AREA ON MAY 10, 1961.  25
F.P.C. 942.  THE AREA CONSISTS OF THE SOUTHERN PORTION OF THE STATE OF
LOUISIANA AND THE FEDERAL AND STATE AREAS OF THE GULF OF MEXICO OFF THE
LOUISIANA COAST.  THE AREA ACCOUNTS FOR ABOUT ONE-THIRD OF THE NATION'S
DOMESTIC NATURAL GAS PRODUCTION AND HAS BEEN DESCRIBED AS "THE MOST
IMPORTANT GAS PRODUCING AREA IN THE COUNTRY."  SOUTHERN LOUISIANA AREA
RATE CASES, 428 F.2D 407, 418 (CA5 1970) (HEREAFTER SOLA I). 
PROCEEDINGS CONTINUED OVER SEVEN YEARS.  /6/  ON SEPTEMBER 25, 1968,
THE COMMISSION ISSUED AN ORDER ESTABLISHING AN AREA RATE STRUCTURE, 40
F. P. C. 530, AND, ON MARCH 20, 1969, A MODIFIED ORDER ON REHEARING, 41
F. P. C. 301.  /7/  REFUNDS UNDER THIS STRUCTURE FOR OVERCHARGES DURING
THE PENDENCY OF THE PROCEEDING AMOUNTED TO SOME 375 MILLION DOLLARS. 
/8/ 

AN APPEAL WAS TAKEN TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT. 
ON MARCH 19, 1970, THE COURT OF APPEALS AFFIRMED THE FPC ORDERS BUT
WITH "SERIOUS MISGIVINGS,"  SOLA I, SUPRA, AT 439.  NOTING THAT "(A)
SERIOUS SHORTAGE, IN FACT, MAY ALREADY BE UNAVOIDABLE . . . ," ID., AT
437, THE COURT OF APPEALS WAS CRITICAL OF THE COMMISSION'S FAILURE
ADEQUATELY TO ASSESS "SUPPLY AND DEMAND IN EITHER A SEMI-QUANTITATIVE
OR QUALITATIVE WAY," ID., AT 436.  IT WAS REINFORCED IN THIS VIEW BY
THE EVIDENCE, INCLUDING AN FPC STAFF REPORT, ISSUED WHILE THE APPEAL
WAS PENDING, /9/  THAT THE NATION WAS FACED WITH "A SEVERE GAS
SHORTAGE, WITH DISASTROUS EFFECTS ON CONSUMERS AND THE ECONOMY ALIKE." 
ID., AT 435 N. 87. 

THEREFORE, ALTHOUGH DETERMINING "THAT AFFIRMANCE IS THE BEST
COURSE," ID., AT 439, THE COURT OF APPEALS DECLARED THAT THE JUDGMENT
WAS NOT IN ANY WISE TO FORECLOSE THE COMMISSION FROM MAKING SUCH
CHANGES IN ITS ORDDERS, AS TO BOTH PAST AND FUTURE RATES, AS IT FOUND
TO BE IN THE PUBLIC INTEREST.  THE COURT NOTICED THE FACT THAT, WHILE
THE APPEAL WAS PENDING, THE COMMISSION, IN MARCH 1969, HAD INSTITUTED
PROCEEDINGS TO RECONSIDER RATES FOR THE OFF-SHORE PORTION OF SOUTHERN
LOUISIANA, SEE 41 F. P. C. 378, AND LATER THAT YEAR EXPANDED THE
PROCEDURE TO INCLUDE THE ENTIRE AREA, 42 F. P. C. 1110.  THUS, IT
STATED: 

     "THE MANDATE OF THIS COURT SHOULD NOT, HOWEVER BE INTERPRETED

TO INTERFERE WITH THE COMMISSION ACTION THAT WOULD CHANGE THE

  RATES WE HAVE APPROVED HERE.  WE SPECIFICALLY AND EMPHATICALLY

  REJECT THE CONTENTION ADVANCED . . . THAT THE COMMISSION HAS NO

  POWER TO SET ASIDE RATES ONCE DETERMINED BY IT TO BE JUST AND

  REASONABLE WHEN IT HAS REASON TO BELIEVE ITS DETERMINATIONS MAY

  HAVE BEEN ERRONEOUS.  IN FACT, THE EXISTENCE OF THE NEW

  PROCEEDINGS, WHICH AS WE UNDERSTAND THEM WILL TAKE INTO ACCOUNT

  MANY OF THE ISSUES WHOSE ABSENCE HAS CONCERNED US HERE, HAS BEEN

  ONE OF THE FACTORS WE HAVE CONSIDERED IN DECIDING TO AFFIRM THE

  COMMISSION'S DECISIONS."  428 F. 2D, AT 444 - 445. 

PENDING DECISION ON PETITIONS FOR REHEARING, HOWEVER, THE COMMISSION
ADVISED THE COURT OF APPEALS, IN A LETTER REQUESTED BY THE COURT, THAT,
UNLESS THAT COURT OTHERWISE DIRECTED, IT DID NOT BELIEVE THAT IT HAD
AUTHORITY TO MODIFY, RESCIND, OR SET ASIDE A RATE ORDER OR MORATORIUM
AFFIRMED BY THE COURT.  THE COURT OF APPEALS ANSWERED IN ITS OPINION
DENYING REHEARING, 444 F. 2D 125, 126 - 127 (1970): 

"WE WISH TO MAKE CRYSTAL CLEAR THE AUTHORITY OF THE COMMISSION IN
THIS CASE TO REOPEN ANY PART OF ITS ORDER THAT CIRCUMSTANCES REQUIRE BE
REOPENED.  UNDER SECTION 19(B) OF THE NATURAL GAS ACT, THIS COURT HAS
THE BROAD REMEDIAL POWERS THAT INHERE IN A COURT OF EQUITY, AND
PURSUANT TO OUR EQUITABLE POWERS WE MAKE IT PART OF THE REMEDY IN THIS
CASE THAT THE AUTHORITY OF THE COMMISSION TO REOPEN ANY PART OF ITS
ORDERS, INCLUDING THOSE AFFECTING REVENUES FROM GAS ALREADY DELIVERED,
IS LEFT INTACT.  THE COMMISSION CAN MAKE RETROSPECTIVE AS WELL AS
PROSPECTIVE ADJUSTMENTS IN THIS CASE IF IT FINDS THAT IT IS IN THE
PUBLIC INTEREST TO DO SO. 

     "AT THE SAME TIME, WE EMPHASIZE THAT OUR JUDGMENT IS AN

  AFFIRMANCE AND NOT A REMAND.  THE APPROPRIATE PLACE FOR

  ORIGINALLY CONSIDERING WHAT PARTS OF THE ORDERS MUST BE REOPENED

  IN LIGHT OF NEW EVIDENCE IS BEFORE THE COMMISSION.  IT MAY BE

  THAT THE COMMISSION WILL DECIDE THAT THE REFUNDS IT HAS ORDERED

ARE JUST AND REASONABLE OR AT LEAST THAT THEIR SIGNIFICANCE TO

  THE PUBLIC INTEREST IS OUTWEIGHED BY THE CONFUSION AND DELAY THAT

  WOULD RESULT FROM THEIR REOPENING.  IN THIS EVENT, THE COMMISSION

  WILL ALLOW ITS REFUND ORDERS TO STAND AS THEY ARE.  OR IT MAY BE

  THAT THE REFUNDS ARE TOO BURDENSOME IN LIGHT OF NEW EVIDENCE TO

  BE IN THE PUBLIC INTEREST.  IN THAT CASE, IT IS OUR JUDGMENT THAT

  THE COMMISSION SHALL HAVE THE POWER AND THE DUTY TO REMEDY THE

  SITUATION BY CHANGING ITS ORDERS." 

THE COMMISSION THEREUPON FORMALLY REOPENED THE 1961 PROCEEDING AND
CONSOLIDATED IT WITH THE NEW PROCEEDING, 44 F. P. C. 1638 (1970).  /10/
AN EXTENSIVE RECORD OF MANY THOUSANDS OF PAGES OF TESTIMONY AND MORE
THAN A HUNDRED EXHIBITS WAS COMPILED BETWEEN APRIL 1970 AND MARCH
1971.  /11/  PURSUANT TO THE INSTRUCTIONS OF THE COURT OF APPEALS, MUCH
OF THE EVIDENCE FOCUSED ON THE GAS SHORTAGE, PROJECTED LEVELS OF
DEMAND, AND ESTIMATES OF NEW SUPPLY NEEDED TO ALLEVIATE THE PROBLEM. 
EVIDENCE WAS ALSO ADDUCED BEARING UPON RATE LEVELS NEEDED TO INDUCE
ADDITIONAL SUPPLY, THE POTENTIAL INDUSTRY CONSEQUENCES OF ANY NEW
ORDER, AND NEW COST TRENDS BASED ON DATA UNAVAILABLE AT THE TIME OF THE
EARLIER PROCEEDINGS. 

CONTEMPORANEOUSLY WITH THE HEARINGS, SETTLEMENT CONFERENCES WERE
INSTITUTED, ON MOTION, BY THE PRESIDING EXAMINER, 46 F. P. C. 86, 103
(1971), AND THOSE CONFERENCES WERE ATTENDED BY PRODUCERS, PIPELINES,
DISTRIBUTORS, STATE COMMISSIONS, MUNICIPALLY OWNED UTILITIES, AND THE
COMMISSION STAFF.  EVENTUALLY, A SETTLEMENT PROPOSAL WAS SUBMITTED BY
ONE OF THE PARTIES, /12/  AND, AFTER BEING PLACED ON THE RECORD FOR
COMMENTS, IT WAS AGREED TO BY A LARGE MAJORITY OF ALL INTERESTS.  /13/
AN INTERMEDIATE DECISION OF THE PRESIDING EXAMINER WAS WAIVED, AND THE
COMMISSION TOOK UP THE CASE. 

AT THE OUTSET, THE COMMISSION STATED THAT IT BELIEVED THAT ADOPTION
OF THE SETTLEMENT PROPOSAL WAS PRECLUDED UNLESS THE COMMISSION FOUND
THE TERMS TO BE IN THE PUBLIC INTEREST AND SUPPORTED BY SUBSTANTIAL
EVIDENCE.  /14/  ACCORDINGLY, THE COMMISSION EVALUATED THE PROPOSAL IN
THE LIGHT OF THE MASSIVE RECORD THAT HAD BEEN COMPILED IN THE DECADE
SINCE 1961, INCLUDING THE ADDITIONAL YEAR OF HEARINGS DIRECTED IN LARGE
PART TO THE TERMS OF THE SETTLEMENT PROPOSAL AND THE NATURE OF THE
SUPPLY SHORTAGE.  THE COMMISSION CONCLUDED THAT THE TERMS OF THE
PROPOSED SETTLEMENT WERE JUST AND REASONABLE, AND FOUND THEM TO BE
SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD.  /15//  THE CEILING
RATES ESTABLISHED IN THE 1968 ORDERS, WHICH BECAUSE OF COMMISSION AND
COURT STAYS HAD NEVER TONE INTO EFFECT, WERE HELD "NOW (TO) PERFORM NO
OFFICE,"  46 F. P. C., AT 102. 

THE EFFECTIVE DATE OF THE 1971 ORDER WAS AUGUST 1, 1971.  BY THE
TERMS OF THIS ORDER "FLOWING GAS," I.E., GAS DELIVERED AFTER AUGUST 1,
1971, UNDER CONTRACTS DATED PRIOR TO OCTOBER 1, 1968, RECEIVES
TREATMENT DIFFERENT FROM "NEW GAS," I.E., GAS DELIVERED AFTER AUGUST 1,
1971, UNDER CONTRACTS DATED AFTER OCTOBER 1, 1968.  THE ESTABLISHED
FLOWING GAS PRICE CEILINGS ARE 22.275[ PER THOUSAND CUBIC FEET (MCF)
FOR GAS PRODUCED ONSHORE AND 21.375[ PER MCF FOR GAS PRODUCED
OFFSHORE.  THE ESTABLISHED NEW GAS PRICE CEILINGS ARE 26[ FOR BOTH
ONSHORE AND OFFSHORE GAS. 

FLOWING GAS CEILINGS AUTOMATICALLY INCREASED 0.5[ PER MCF ON OCTOBER
1, 1973, AND, AS A FURTHER INCENTIVE FOR INCREASING THE GAS SUPPLY, THE
COMMISSION ALSO ESTABLISHED INCREASES UP TO 1.5[ PER MCF, CONTINGENT
UPON THE INDUSTRY'S FINDING AND DEDICATING NEW GAS RESERVES.  /16/  NEW
GAS RATES AUTOMATICALLY INCREASE 1[ PER MCF ON OCTOBER 1, 1974.  A
MORATORIUM IS IMPOSED UPON THE FILING OF PRODUCER RATE INCREASES FOR
FLOWING GAS UNTIL OCTOBER 1, 1976.  AND FOR NEW GAS UNTIL OCTOBER 1,
1977. 

THE COMMISSION ALSO ESTABLISHED MINIMAL PIPELINE RATES TO BE CHARGED
PRODUCERS BY PIPELINES FOR THE TRANSPORTATION OF CERTAIN LIQUID AND
LIQUEFIABLE HYDROCARBONS, AND ELIMINATED THE PRICE DIFFERENTIAL BETWEEN
CASINGHEAD GAS (GAS DISSOLVED IN OR ASSOCIATED WITH THE PRODUCTION OF
OIL) AND NEW GAS-WELL GAS THAT IT HAD IMPOSED IN EARLIER CASES.  46
F.P.C., AT 144.  SEE PERMIAN BASIN, 390 U.S., AT 760 - 761. 

THE PROBLEM OF REFUNDS CONCERNS DELIVERIES OF FLOWING GAS PRIOR TO
AUGUST 1, 1971.  THE RATES ESTABLISHED BY THE 1971 ORDER WERE HIGHER
THAN THOSE THAT WOULD HAVE BEEN ESTABLISHED UNDER THE 1968 ORDERS HAD
THEY BEEN PUT INTO EFFECT.  /17/  IF REFUNDS HAD BEEN CALCULATED ON THE
BASIS OF THE 1968 ORDER, THEY WOULD HABE AGGREGATED OVER 375 MILLION
DOLLARS.  IF THEY HAD BEEN CALCULATED UPON THE BASIS OF THE 1971
FLOWING GAS CEILING RATES, REFUNDS WOULD HAVE AGGREGATED LESS THAN 150
MILLION DOLLARS.  HOWEVER, THE PROPOSED SETTLEMENT STIPULATED A REFUND
OBLIGATION OF 150 MILLION DOLLARS, WITH A PROVISO THAT THIS COULD BE
WORKED OFF BY THE COMMITMENT BY A REFUND OBLIGOR OF ADDITIONAL GAS
RESERVES TO THE INTERSTATE MARKET.  /18/  THE COMMISSION ADOPTED THIS
PROPOSAL AS AN INTEGRAL PART OF THE 1961 - 1971 RATE STRUCTURE AND
ESTABLISHED A SCHEDULE AGGREGATING 150 MILLION DOLLARS OF REFUNDS FROM
THOSE THAT WERE OWED BUT NOT YET PAID BY PRODUCERS WHO HAD COLLECTED
RATES IN EXCESS OF CERTAIN PRESCRIBED LEVELS LOWER THAN THE ESTABLISHED
FLOWING GAS RATES.  /19/

        II 

BEFORE ADDRESSING PETITIONERS' ARGUMENTS, WE MUST CONSIDER BRIEFLY
THE SITUATION IN WHICH THE COMMISSION HAS FOUND ITSELF IN ITS ATTEMPTS
TO REGULATE THE NATURAL GAS MARKET; THE TEACHINGS OF PERMIAN BASIN AND
OTHER DECISIONS OF THIS COURT AS TO THE EXTENT OF THE COMMISSION'S
STATUTORY AUTHORITY IN THIS AREA; THE LIMITATIONS UPON REVIEW BY THE
COURT OF APPEALS OF THE COMMISSION'S ORDER; AND THE LIMITATIONS UPON
REVIEW BY THIS COURT OF THE COURT OF APPEALS' AFFIRMANCE OF THE ORDER. 

THE HISTORY OF THE COMMISSION'S EARLY EXPERIENCE WITH THE NATURAL
GAS ACT, 15 U.S.C. 717 ET SEQ., HAS BEEN FULLY DEVELOPED IN OUR FIRST
AREA RATE OPINION, PERMIAN BASIN, SUPRA, AT 755 - 759, AND MAY BE
MERELY SUMMARIZED HERE.  WITH THE PASSAGE OF THE ACT IN 1938, 52 STAT.
821, CONGRESS GAVE THE COMMISSION AUTHORITY TO DETERMINE AND FIX "JUST
AND REASONABLE RATES)," 5(A), 15 U.S.C. 717D (A), /20/  FOR THE "SALE
IN INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC
CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE . .
. ."  1(B), 15 U.S.C. 717(B).  /21/  THE ACT WAS PATTERNED AFTER
EARLIER REGULATORY STATUTES THAT APPLIED TO TRADITIONAL PUBLIC
UTILITIES AND TRANSPORTATION COMPANIES, AND THAT PROVIDED FOR SETTING
RATES EQUAL TO SUCH COMPANIES' COSTS OF SERVICE PLUS A REASONABLE RATE
OF RETURN.  /22/ 

UNTIL 1954, THE COMMISSION CONSTRUED ITS MANDATE AS REQUIRING THAT
IT REGULATE THE CHAIN OF DISTRIBUTION OF NATURAL GAS ONLY FROM THE
POINT WHERE IN INTERSTATE PIPELINE ACQUIRED IT.  /23 BECAUSE SUCH
PIPELINES WERE RELATIVELY FEW IN NUMBER /24/  AND FELL WITHIN THE
TRANSPORTATION COMPANY MODEL, THE COMMISSION WAS ABLE TO APPLY A
TRADITIONAL REGULATORY APPROACH, USING INDIVIDUALIZED COSTS OF SERVICE
AS A BASIS FOR DETERMINING PRICE.  /25/ 

IN 1954, HOWEVER, THIS COURT RULED IN PHILLIPS PETROLEUM CO. V.
WISCONSIN, 247 U.S. 672, THAT INDEPENDENT PRODUCERS ARE "(NATURAL-GAS
COMPANIES)" WITHIN THE MEANING OF 2 (6) OF THE ACT, 15 U.S.C. 717A
(6).  /26/  IN RESPONSE, THE COMMISSION AT FIRST ATTEMPTED TO EXTEND TO
THIS NEW INDUSTRY ITS OLD REGULATORY METHODS, INCLUDING ESTABLISHMENT
OF INDIVIDUAL RATES BASED ON EACH PRODUCER'S COSTS OF SERVICE.  /27/
THE EFFORT FOUNDERED ON THE SHEER SIZE OF THE TASK--THOUSANDS OF
INDEPENDENT PRODUCERS BEING ENGAGED IN JURISDICTIONAL SALES OF GAS AT
THAT TIME.  /28/ 

    (C) WITH RESPECT TO NEW YORK'S ARGUMENT THAT SOME PRODUCERS

  MIGHT ABANDON THEIR NORMAL BUSINESS OF EXPLORING FOR AND

  DEVELOPING NEW RESERVES AND YET ENJOY THE INCREASE IN THEIR

  PRICES FOR FLOWING GAS IF OTHER PRODUCERS CONTRIBUTE SUBSTANTIAL

  ADDITIONAL RESERVES, THE FPC'S BELIEF THAT PRODUCERS ALREADY

  OPERATING IN THE AREA WILL CONTINUE TO DO SO IS AT LEAST AN

  EQUALLY TENABLE JUDGMENT, AND NEW YORK OFFERED NOTHING TO

  OVERCOME THE PRESUMPTION OF VALIDITY ATTACHING TO THE EXERCISE OF

  THE FPC'S EXPERTISE.  PP. 326 - 327. 

     4. THE COURT OF APPEALS' CONCLUSION, CONTRARY TO MOBIL'S

  CONTENTION, THAT THE FPC'S FIXING OF MORATORIA ON NEW RATE

  FILINGS WAS SUPPORTED BY REQUIRED FINDINGS OF FACT AND BY

  SUBSTANTIAL EVIDENCE, DID NOT MISAPPREHEND OR GROSSLY MISAPPLY

  THE SUBSTANTIAL-EVIDENCE STANDARD.  PP. 327 - 328. 

     5.  MOBIL'S ARGUMENT THAT THE FPC IMPROPERLY FAILED TO PROVIDE

  AUTOMATIC ADJUSTMENTS IN AREA RATES TO COMPENSATE FOR ANTICIPATED

  HIGHER ROYALTY COSTS, IS HYPOTHETICAL AT THIS STAGE AND IN ANY

  EVENT AN AFFECTED PRODUCER IS ENTITLED TO SEEK INDIVIDUALIZED

  RELIEF.  P. 328. 

     6.  THE COURT OF APPEALS DID NOT ERR IN CONCLUDING THAT THE
FPC

  "ACTED WITHIN THE BOUNDS OF ADMINISTRATIVE PROPRIETY IN

  ABANDONING"  AS A PRAGMATIC ADJUSTMENT THE DISTINCTION IN MAXIMUM

  PERMISSIBLE RATES BETWEEN CASINGHEAD GAS AND GAS-WELL GAS SO FAR

 AS NEW DEDICATIONS ARE CONCERNED, EVEN THOUGH CASINGHEAD GAS WAS

  FORMERLY TREATED AS A BYPRODUCT OF OIL AND THEREFORE COSTED AND

  PRICED LOWER THAN GAS-WELL GAS.  PP. 328 - 330. 

     7.  IN ARGUING THAT THE MINIMUM RATES PROVIDED BY THE 1971

  ORDER TO BE PAID BY PRODUCERS TO PIPELINES FOR TRANSPORTATION OF

  LIQUIES AND LIQUEFIED HYDROCARBONS ARE NOT SUPPORTED BY

  SUBSTANTIAL EVIDENCE, MOBIL HAS NOT MET ITS BURDEN OF

  DEMONSTRATING THAT THE COURT OF APPEALS MISAPPREHENDED OR GROSSLY

  MISAPPLIED THE SUBSTANTIAL-EVIDENCE STANDARD.  P. 330. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL

  MEMBERS JOINED EXCEPT STEWART AND POWELL, JJ., WHO TOOK NO PART

  IN THE CONSIDERATION OR DECISION OF THE CASES. 

BURTON, W. J. STARK, WARREN M. SPARKS, B. JAMES MCGRAW, ROBERT W.
HENDERSON, WILLIAM A. SACKMANN, JOHN L. WILLIFORD, PAUL W. HICKS,
OLIVER L. STONE, RONALD J. JACOBS, RICHARD F. REMMERS, STANLEY M.
MORLEY, LOUIS FLAX, H.W. VARNER, PAT TIMMONS, SCOTT PL ANGER, KIRK W.
WEINERT, C. FIELDING EARLY, JR., AND GEORGE C. BOND.  RAYMOND N.
SHIBLEY FILED A BRIEF FOR RESPONDENT PIPELINE PURCHASER GROUP IN ALL
CASES.  FRANCIS R. KIRKHAM, JAMES B. ATKIN, WOOLLEN H. WALSHE, JUSTIN
R. WOLF, AND DAVID B. WARD FILED A GRIEF FOR RESPONDENT THE CALIFORNIA
COMPANY, A DIVISION OF CHEVRON OIL CO., IN ALL CASES.  C. WILLIAM
COOPER, TILFORD A. JONES, EDWARD H. GERSTENFIELD, ROBERT CORP, NORMAN
A. FLANINGAM, LAUMAN MARTIN, RICHARD M. MERRIMAN, ELMER NAFZIGER, JON
D. NOLAND, JAMES O'MALLEY, JR., RICHARD A. ROSAN, WILLIAM W. ROSS,
THOMAS C. MATTHEWS, ARTHUR R. SEDER, JR., CHARLES V. SHANNON, JUSTIN A.
STANLEY, AND J. STANLEY STROUD FILED A BRIEF FOR RESPONDENTS UNITED
DISTRIBUTION COMPANIES IN ALL CASES. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

WE REVIEW HERE THE AFFIRMANCE BY THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT OF A 1971 ORDER OF THE FEDERAL POWER COMMISSION /1/  THAT
ESTABLISHED AN AREA RATE STRUCTURE FOR INTERSTATE SALES /2/  OF NATURAL
GAS PRODUCED IN THE SOUTHERN LOUISIANA AREA.  THE SOUTHERN LOUISIANA
AREA IS ONE OF SEVEN GEOGRAPHICAL AREAS DEFINED BY THE COMMISSION FOR
THE PURPOSE OF PRESCRIBING AREAWIDE PRICE CEILINGS.  /3/  THIS IS THE
SECOND AREA RATE CASE TO REACH THIS COURT.  THE FIRST WAS THE PERMIAN
BASIN AREA RATE CASES, 390 U.S. 747 (1968), IN WHICH THE COURT
SUSTAINED THE CONSTITUTIONAL AND STATUTORY AUTHORITY OF THE COMMISSION
TO ADOPT A SYSTEM OF AREA REGULATION AND TO IMPOSE SUPPLEMENTARY
REQUIREMENTS IN THE DISCHARGE OF ITS RESPONSIBILITIES UNDER 4 AND 5 OF
THE NATURAL GAS ACT /4/  TO DETERMINE WHETHER PRODUCERS' RATES ARE JUST
AND REASONABLE. 

THE COURT OF APPEALS AFFIRMED THE 1971 ORDER IN ITS ENTIRETY AS AN
APPROPRIATE EXERCISE OF ADMINISTRATIVE DISCRETION SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE.  PLACID OIL CO. V. FPC,
483 F. 2D 880 (CA5 1973).  WE GRANTED THE PETITIONS FOR CERTIORARI IN
THESE THREE CASES /5/  TO REVIEW THE CORRECTNESS OF THE COURT OF
APPEALS' HOLDING SUSTAINING THE 1971 ORDER AS IN ALL RESPECTS WITHIN
THE COMMISSION'S STATUTORY POWERS, AND TO DETERMINE WHETHER THE COURT
OF APPEALS MISAPPREHENDED OR GROSSLY MISAPPLIED THE SUBSTANTIAL
EVIDENCE STANDARD.  414 U.S. 1142 (1974).  WE AFFIRM. 

    I 

THE COMMISSION FIRST INSTITUTED PROCEEDINGS TO ESTABLISH AN AREA
RATE STRUCTURE FOR THE SOUTHERN LOUISIANA AREA ON MAY 10, 1961.  25
F.P.C. 942.  THE AREA CONSISTS OF THE SOUTHERN PORTION OF THE STATE OF
LOUISIANA AND THE FEDERAL AND STATE AREAS OF THE GULF OF MEXICO OFF THE
LOUISIANA COAST.  THE AREA ACCOUNTS FOR ABOUT ONE-THIRD OF THE NATION'S
DOMESTIC NATURAL GAS PRODUCTION AND HAS BEEN DESCRIBED AS "THE MOST
IMPORTANT GAS PRODUCING AREA IN THE COUNTRY."  SOUTHERN LOUISIANA AREA
RATE CASES, 428 F.2D 407, 418 (CA5 1970) (HEREAFTER SOLA I). 
PROCEEDINGS CONTINUED OVER SEVEN YEARS.  /6/  ON SEPTEMBER 25, 1968,
THE COMMISSION ISSUED AN ORDER ESTABLISHING AN AREA RATE STRUCTURE, 40
F. P. C. 530, AND, ON MARCH 20, 1969, A MODIFIED ORDER ON REHEARING, 41
F. P. C. 301.  /7/  REFUNDS UNDER THIS STRUCTURE FOR OVERCHARGES DURING
THE PENDENCY OF THE PROCEEDING AMOUNTED TO SOME 375 MILLION DOLLARS. 
/8/ 

AN APPEAL WAS TAKEN TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT. 
ON MARCH 19, 1970, THE COURT OF APPEALS AFFIRMED THE FPC ORDERS BUT
WITH "SERIOUS MISGIVINGS,"  SOLA I, SUPRA, AT 439.  NOTING THAT "(A)
SERIOUS SHORTAGE, IN FACT, MAY ALREADY BE UNAVOIDABLE . . . ," ID., AT
437, THE COURT OF APPEALS WAS CRITICAL OF THE COMMISSION'S FAILURE
ADEQUATELY TO ASSESS "SUPPLY AND DEMAND IN EITHER A SEMI-QUANTITATIVE
OR QUALITATIVE WAY," ID., AT 436.  IT WAS REINFORCED IN THIS VIEW BY
THE EVIDENCE, INCLUDING AN FPC STAFF REPORT, ISSUED WHILE THE APPEAL
WAS PENDING, /9/  THAT THE NATION WAS FACED WITH "A SEVERE GAS
SHORTAGE, WITH DISASTROUS EFFECTS ON CONSUMERS AND THE ECONOMY ALIKE." 
ID., AT 435 N. 87. 

THEREFORE, ALTHOUGH DETERMINING "THAT AFFIRMANCE IS THE BEST
COURSE," ID., AT 439, THE COURT OF APPEALS DECLARED THAT THE JUDGMENT
WAS NOT IN ANY WISE TO FORECLOSE THE COMMISSION FROM MAKING SUCH
CHANGES IN ITS ORDDERS, AS TO BOTH PAST AND FUTURE RATES, AS IT FOUND
TO BE IN THE PUBLIC INTEREST.  THE COURT NOTICED THE FACT THAT, WHILE
THE APPEAL WAS PENDING, THE COMMISSION, IN MARCH 1969, HAD INSTITUTED
PROCEEDINGS TO RECONSIDER RATES FOR THE OFF-SHORE PORTION OF SOUTHERN
LOUISIANA, SEE 41 F. P. C. 378, AND LATER THAT YEAR EXPANDED THE
PROCEDURE TO INCLUDE THE ENTIRE AREA, 42 F. P. C. 1110.  THUS, IT
STATED: 

     "THE MANDATE OF THIS COURT SHOULD NOT, HOWEVER BE INTERPRETED

TO INTERFERE WITH THE COMMISSION ACTION THAT WOULD CHANGE THE

  RATES WE HAVE APPROVED HERE.  WE SPECIFICALLY AND EMPHATICALLY

  REJECT THE CONTENTION ADVANCED . . . THAT THE COMMISSION HAS NO

  POWER TO SET ASIDE RATES ONCE DETERMINED BY IT TO BE JUST AND

  REASONABLE WHEN IT HAS REASON TO BELIEVE ITS DETERMINATIONS MAY

  HAVE BEEN ERRONEOUS.  IN FACT, THE EXISTENCE OF THE NEW

  PROCEEDINGS, WHICH AS WE UNDERSTAND THEM WILL TAKE INTO ACCOUNT

  MANY OF THE ISSUES WHOSE ABSENCE HAS CONCERNED US HERE, HAS BEEN

  ONE OF THE FACTORS WE HAVE CONSIDERED IN DECIDING TO AFFIRM THE

  COMMISSION'S DECISIONS."  428 F. 2D, AT 444 - 445. 

PENDING DECISION ON PETITIONS FOR REHEARING, HOWEVER, THE COMMISSION
ADVISED THE COURT OF APPEALS, IN A LETTER REQUESTED BY THE COURT, THAT,
UNLESS THAT COURT OTHERWISE DIRECTED, IT DID NOT BELIEVE THAT IT HAD
AUTHORITY TO MODIFY, RESCIND, OR SET ASIDE A RATE ORDER OR MORATORIUM
AFFIRMED BY THE COURT.  THE COURT OF APPEALS ANSWERED IN ITS OPINION
DENYING REHEARING, 444 F. 2D 125, 126 - 127 (1970): 

"WE WISH TO MAKE CRYSTAL CLEAR THE AUTHORITY OF THE COMMISSION IN
THIS CASE TO REOPEN ANY PART OF ITS ORDER THAT CIRCUMSTANCES REQUIRE BE
REOPENED.  UNDER SECTION 19(B) OF THE NATURAL GAS ACT, THIS COURT HAS
THE BROAD REMEDIAL POWERS THAT INHERE IN A COURT OF EQUITY, AND
PURSUANT TO OUR EQUITABLE POWERS WE MAKE IT PART OF THE REMEDY IN THIS
CASE THAT THE AUTHORITY OF THE COMMISSION TO REOPEN ANY PART OF ITS
ORDERS, INCLUDING THOSE AFFECTING REVENUES FROM GAS ALREADY DELIVERED,
IS LEFT INTACT.  THE COMMISSION CAN MAKE RETROSPECTIVE AS WELL AS
PROSPECTIVE ADJUSTMENTS IN THIS CASE IF IT FINDS THAT IT IS IN THE
PUBLIC INTEREST TO DO SO. 

     "AT THE SAME TIME, WE EMPHASIZE THAT OUR JUDGMENT IS AN

  AFFIRMANCE AND NOT A REMAND.  THE APPROPRIATE PLACE FOR

  ORIGINALLY CONSIDERING WHAT PARTS OF THE ORDERS MUST BE REOPENED

  IN LIGHT OF NEW EVIDENCE IS BEFORE THE COMMISSION.  IT MAY BE

  THAT THE COMMISSION WILL DECIDE THAT THE REFUNDS IT HAS ORDERED

ARE JUST AND REASONABLE OR AT LEAST THAT THEIR SIGNIFICANCE TO

  THE PUBLIC INTEREST IS OUTWEIGHED BY THE CONFUSION AND DELAY THAT

  WOULD RESULT FROM THEIR REOPENING.  IN THIS EVENT, THE COMMISSION

  WILL ALLOW ITS REFUND ORDERS TO STAND AS THEY ARE.  OR IT MAY BE

  THAT THE REFUNDS ARE TOO BURDENSOME IN LIGHT OF NEW EVIDENCE TO

  BE IN THE PUBLIC INTEREST.  IN THAT CASE, IT IS OUR JUDGMENT THAT

  THE COMMISSION SHALL HAVE THE POWER AND THE DUTY TO REMEDY THE

  SITUATION BY CHANGING ITS ORDERS." 

THE COMMISSION THEREUPON FORMALLY REOPENED THE 1961 PROCEEDING AND
CONSOLIDATED IT WITH THE NEW PROCEEDING, 44 F. P. C. 1638 (1970).  /10/
AN EXTENSIVE RECORD OF MANY THOUSANDS OF PAGES OF TESTIMONY AND MORE
THAN A HUNDRED EXHIBITS WAS COMPILED BETWEEN APRIL 1970 AND MARCH
1971.  /11/  PURSUANT TO THE INSTRUCTIONS OF THE COURT OF APPEALS, MUCH
OF THE EVIDENCE FOCUSED ON THE GAS SHORTAGE, PROJECTED LEVELS OF
DEMAND, AND ESTIMATES OF NEW SUPPLY NEEDED TO ALLEVIATE THE PROBLEM. 
EVIDENCE WAS ALSO ADDUCED BEARING UPON RATE LEVELS NEEDED TO INDUCE
ADDITIONAL SUPPLY, THE POTENTIAL INDUSTRY CONSEQUENCES OF ANY NEW
ORDER, AND NEW COST TRENDS BASED ON DATA UNAVAILABLE AT THE TIME OF THE
EARLIER PROCEEDINGS. 

CONTEMPORANEOUSLY WITH THE HEARINGS, SETTLEMENT CONFERENCES WERE
INSTITUTED, ON MOTION, BY THE PRESIDING EXAMINER, 46 F. P. C. 86, 103
(1971), AND THOSE CONFERENCES WERE ATTENDED BY PRODUCERS, PIPELINES,
DISTRIBUTORS, STATE COMMISSIONS, MUNICIPALLY OWNED UTILITIES, AND THE
COMMISSION STAFF.  EVENTUALLY, A SETTLEMENT PROPOSAL WAS SUBMITTED BY
ONE OF THE PARTIES, /12/  AND, AFTER BEING PLACED ON THE RECORD FOR
COMMENTS, IT WAS AGREED TO BY A LARGE MAJORITY OF ALL INTERESTS.  /13/
AN INTERMEDIATE DECISION OF THE PRESIDING EXAMINER WAS WAIVED, AND THE
COMMISSION TOOK UP THE CASE. 

AT THE OUTSET, THE COMMISSION STATED THAT IT BELIEVED THAT ADOPTION
OF THE SETTLEMENT PROPOSAL WAS PRECLUDED UNLESS THE COMMISSION FOUND
THE TERMS TO BE IN THE PUBLIC INTEREST AND SUPPORTED BY SUBSTANTIAL
EVIDENCE.  /14/  ACCORDINGLY, THE COMMISSION EVALUATED THE PROPOSAL IN
THE LIGHT OF THE MASSIVE RECORD THAT HAD BEEN COMPILED IN THE DECADE
SINCE 1961, INCLUDING THE ADDITIONAL YEAR OF HEARINGS DIRECTED IN LARGE
PART TO THE TERMS OF THE SETTLEMENT PROPOSAL AND THE NATURE OF THE
SUPPLY SHORTAGE.  THE COMMISSION CONCLUDED THAT THE TERMS OF THE
PROPOSED SETTLEMENT WERE JUST AND REASONABLE, AND FOUND THEM TO BE
SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD.  /15//  THE CEILING
RATES ESTABLISHED IN THE 1968 ORDERS, WHICH BECAUSE OF COMMISSION AND
COURT STAYS HAD NEVER TONE INTO EFFECT, WERE HELD "NOW (TO) PERFORM NO
OFFICE,"  46 F. P. C., AT 102. 

THE EFFECTIVE DATE OF THE 1971 ORDER WAS AUGUST 1, 1971.  BY THE
TERMS OF THIS ORDER "FLOWING GAS," I.E., GAS DELIVERED AFTER AUGUST 1,
1971, UNDER CONTRACTS DATED PRIOR TO OCTOBER 1, 1968, RECEIVES
TREATMENT DIFFERENT FROM "NEW GAS," I.E., GAS DELIVERED AFTER AUGUST 1,
1971, UNDER CONTRACTS DATED AFTER OCTOBER 1, 1968.  THE ESTABLISHED
FLOWING GAS PRICE CEILINGS ARE 22.275[ PER THOUSAND CUBIC FEET (MCF)
FOR GAS PRODUCED ONSHORE AND 21.375[ PER MCF FOR GAS PRODUCED
OFFSHORE.  THE ESTABLISHED NEW GAS PRICE CEILINGS ARE 26[ FOR BOTH
ONSHORE AND OFFSHORE GAS. 

FLOWING GAS CEILINGS AUTOMATICALLY INCREASED 0.5[ PER MCF ON OCTOBER
1, 1973, AND, AS A FURTHER INCENTIVE FOR INCREASING THE GAS SUPPLY, THE
COMMISSION ALSO ESTABLISHED INCREASES UP TO 1.5[ PER MCF, CONTINGENT
UPON THE INDUSTRY'S FINDING AND DEDICATING NEW GAS RESERVES.  /16/  NEW
GAS RATES AUTOMATICALLY INCREASE 1[ PER MCF ON OCTOBER 1, 1974.  A
MORATORIUM IS IMPOSED UPON THE FILING OF PRODUCER RATE INCREASES FOR
FLOWING GAS UNTIL OCTOBER 1, 1976.  AND FOR NEW GAS UNTIL OCTOBER 1,
1977. 

THE COMMISSION ALSO ESTABLISHED MINIMAL PIPELINE RATES TO BE CHARGED
PRODUCERS BY PIPELINES FOR THE TRANSPORTATION OF CERTAIN LIQUID AND
LIQUEFIABLE HYDROCARBONS, AND ELIMINATED THE PRICE DIFFERENTIAL BETWEEN
CASINGHEAD GAS (GAS DISSOLVED IN OR ASSOCIATED WITH THE PRODUCTION OF
OIL) AND NEW GAS-WELL GAS THAT IT HAD IMPOSED IN EARLIER CASES.  46
F.P.C., AT 144.  SEE PERMIAN BASIN, 390 U.S., AT 760 - 761. 

THE PROBLEM OF REFUNDS CONCERNS DELIVERIES OF FLOWING GAS PRIOR TO
AUGUST 1, 1971.  THE RATES ESTABLISHED BY THE 1971 ORDER WERE HIGHER
THAN THOSE THAT WOULD HAVE BEEN ESTABLISHED UNDER THE 1968 ORDERS HAD
THEY BEEN PUT INTO EFFECT.  /17/  IF REFUNDS HAD BEEN CALCULATED ON THE
BASIS OF THE 1968 ORDER, THEY WOULD HABE AGGREGATED OVER 375 MILLION
DOLLARS.  IF THEY HAD BEEN CALCULATED UPON THE BASIS OF THE 1971
FLOWING GAS CEILING RATES, REFUNDS WOULD HAVE AGGREGATED LESS THAN 150
MILLION DOLLARS.  HOWEVER, THE PROPOSED SETTLEMENT STIPULATED A REFUND
OBLIGATION OF 150 MILLION DOLLARS, WITH A PROVISO THAT THIS COULD BE
WORKED OFF BY THE COMMITMENT BY A REFUND OBLIGOR OF ADDITIONAL GAS
RESERVES TO THE INTERSTATE MARKET.  /18/  THE COMMISSION ADOPTED THIS
PROPOSAL AS AN INTEGRAL PART OF THE 1961 - 1971 RATE STRUCTURE AND
ESTABLISHED A SCHEDULE AGGREGATING 150 MILLION DOLLARS OF REFUNDS FROM
THOSE THAT WERE OWED BUT NOT YET PAID BY PRODUCERS WHO HAD COLLECTED
RATES IN EXCESS OF CERTAIN PRESCRIBED LEVELS LOWER THAN THE ESTABLISHED
FLOWING GAS RATES.  /19/

        II 

BEFORE ADDRESSING PETITIONERS' ARGUMENTS, WE MUST CONSIDER BRIEFLY
THE SITUATION IN WHICH THE COMMISSION HAS FOUND ITSELF IN ITS ATTEMPTS
TO REGULATE THE NATURAL GAS MARKET; THE TEACHINGS OF PERMIAN BASIN AND
OTHER DECISIONS OF THIS COURT AS TO THE EXTENT OF THE COMMISSION'S
STATUTORY AUTHORITY IN THIS AREA; THE LIMITATIONS UPON REVIEW BY THE
COURT OF APPEALS OF THE COMMISSION'S ORDER; AND THE LIMITATIONS UPON
REVIEW BY THIS COURT OF THE COURT OF APPEALS' AFFIRMANCE OF THE ORDER. 

THE HISTORY OF THE COMMISSION'S EARLY EXPERIENCE WITH THE NATURAL
GAS ACT, 15 U.S.C. 717 ET SEQ., HAS BEEN FULLY DEVELOPED IN OUR FIRST
AREA RATE OPINION, PERMIAN BASIN, SUPRA, AT 755 - 759, AND MAY BE
MERELY SUMMARIZED HERE.  WITH THE PASSAGE OF THE ACT IN 1938, 52 STAT.
821, CONGRESS GAVE THE COMMISSION AUTHORITY TO DETERMINE AND FIX "JUST
AND REASONABLE RATES)," 5(A), 15 U.S.C. 717D (A), /20/  FOR THE "SALE
IN INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC
CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE . .
. ."  1(B), 15 U.S.C. 717(B).  /21/  THE ACT WAS PATTERNED AFTER
EARLIER REGULATORY STATUTES THAT APPLIED TO TRADITIONAL PUBLIC
UTILITIES AND TRANSPORTATION COMPANIES, AND THAT PROVIDED FOR SETTING
RATES EQUAL TO SUCH COMPANIES' COSTS OF SERVICE PLUS A REASONABLE RATE
OF RETURN.  /22/ 

UNTIL 1954, THE COMMISSION CONSTRUED ITS MANDATE AS REQUIRING THAT
IT REGULATE THE CHAIN OF DISTRIBUTION OF NATURAL GAS ONLY FROM THE
POINT WHERE IN INTERSTATE PIPELINE ACQUIRED IT.  /23 BECAUSE SUCH
PIPELINES WERE RELATIVELY FEW IN NUMBER /24/  AND FELL WITHIN THE
TRANSPORTATION COMPANY MODEL, THE COMMISSION WAS ABLE TO APPLY A
TRADITIONAL REGULATORY APPROACH, USING INDIVIDUALIZED COSTS OF SERVICE
AS A BASIS FOR DETERMINING PRICE.  /25/ 

IN 1954, HOWEVER, THIS COURT RULED IN PHILLIPS PETROLEUM CO. V.
WISCONSIN, 247 U.S. 672, THAT INDEPENDENT PRODUCERS ARE "(NATURAL-GAS
COMPANIES)" WITHIN THE MEANING OF 2 (6) OF THE ACT, 15 U.S.C. 717A
(6).  /26/  IN RESPONSE, THE COMMISSION AT FIRST ATTEMPTED TO EXTEND TO
THIS NEW INDUSTRY ITS OLD REGULATORY METHODS, INCLUDING ESTABLISHMENT
OF INDIVIDUAL RATES BASED ON EACH PRODUCER'S COSTS OF SERVICE.  /27/
THE EFFORT FOUNDERED ON THE SHEER SIZE OF THE TASK--THOUSANDS OF
INDEPENDENT PRODUCERS BEING ENGAGED IN JURISDICTIONAL SALES OF GAS AT
THAT TIME.  /28/     IN THE EARLY 1960'S THE COMMISSION DISCONTINUED
ITS ATTEMPTS TO DEAL WITH INDIVIDUAL COMPANIES, /29/  AND TURNED TO THE
AREA RATE METHOD.  THE COMMISSION ESTABLISHED A NUMBER OF DISCRETE
GEOGRAPHICAL AREAS WITHIN WHICH IT BELIEVED THAT COSTS AND GENERAL
OPERATING CONDITIONS WERE REASONABLY SIMILAR, /30/  AND SET OUT TO
ESTABLISH, BY CONVENING HEARINGS AND COMPILING MASSIVE RECORDS, UNIFORM
RATE SCHEDULES THAT WOULD GOVERN ALL PRODUCERS WITHIN EACH AREA.  UPON
THE CONCLUSION OF THE FIRST OF THESE UNDERTAKINGS, WE REVIEWED THE
COMMISSION'S EFFORTS AND FOUND NO REVERSIBLE ERROR.  PERMIAN BASIN AREA
RATE CASES, 390 U.S. 747 (1968).  SEE WISCONSIN V. FPC, 373 U.S. 294
(1963). 

BUT, THE COMMISSION WAS SOON CONFRONTED WITH INDICATIONS, BOTH FROM
DATA AVAILABLE TO IT, /31/  AND FROM CRITICISM OF ITS EFFORT, /32/
THAT ITS COST EMPHASIS IN RATE DETERMINATION WAS BEING ACCOMPANIED BY A
SEVERE SHORTAGE IN THE SUPPLY OF NATURAL GAS BEING DEDICATED TO THE
INTERSTATE MARKET.  SINCE THE COMMISSION'S SUBSEQUENT AREA RATE ORDERS,
/33/  INCLUDING BOTH ITS 1968 AND 1971 ORDERS, ARE ADAPTED FROM THE
INITIAL PERMIAN BASIN MODEL AND ARE GOVERNED BY THE SAME STATUTORY
PROVISIONS CONCERNING RATEMAKING AND JUDICIAL REVIEW, WE WILL PREFACE
OUR DISCUSSION OF THE COMMISSION'S RESPONSE TO THESE DIFFICULTIES WITH
A BRIEF REVIEW OF THE PERMIAN BASIN ORDER AND THE APPLICABLE RULES LAID
DOWN IN OUR OPINION SUSTAINING THAT ORDER. 

SUBSEQUENT TO ITS ESTABLISHMENT OF GEOGRAPHICAL AREAS IN 1961, /34/
THE COMMISSION CONSOLIDATED THREE OF THOSE AREAS TO FORM THE PERMIAN
BASIN AREA.  THE RATE STRUCTURE DEVISED FOR THIS AREA SET TWO CEILING
PRICES, THE HIGHER ONE FOR GAS PRODUCED FROM GAS WELLS AND DEDICATED TO
INTERSTATE COMMERCE AFTER JANUARY 1, 1961, AND THE OTHER FOR GAS-WELL
GAS DEDICATED TO INTERSTATE COMMERCE BEFORE JANUARY 1, 1961, AND ALL
GAS PRODUCED FROM OIL WELLS (CASINGHEAD GAS) EITHER ASSOCIATED WITH THE
PRODUCTION OF THE OIL OR DISSOLVED IN IT.  /35/  THE COMMISSION DERIVED
THE HIGHER RATE FOR THE NEWER "VINTAGE" GAS-WELL GAS FROM COMPOSITE
COST DATA OBTAINED BOTH FROM ANSWERS TO PRODUCER QUESTIONNAIRES AND
FROM PUBLISHED DATA SAID TO REFLECT THE NATIONAL COSTS OF FINDING AND
PRODUCING GAS-WELL GAS IN 1960.  /36/  IT DERIVED THE LOWER RATE FROM
PERMIAN BASIN HISTORICAL COST DATA FOR THE OLDER VINTAGE GAS-WELL GAS,
AND APPLIED THAT RATE TO BOTH THAT AND CASINGHEAD GAS WITHOUT
DISTINCTION.  /37/  TO THESE COMPOSITE COSTS, THE COMMISSION ADDED A
RETURN OF 12% /38/  ON THE PRODUCERS' AVERAGE PRODUCTION INVESTMENT,
/39/  OBTAINED BY EXAMINING THE COST DATA, IMPUTING A RATE BASE, AND
ASSUMING THAT GAS WELLS DEPLETE AT A CONSTANT RATE BEGINNING ONE YEAR
AFTER INVESTMENT AND ENDING 20 YEARS LATER.  /40/  FINALLY, AN
ADJUSTMENT UP OR DOWN FROM THE AREA CEILING RATES WAS SPECIFIED FOR GAS
OF HIGHER OR LOWER QUALITY AND ENERGY CONTENT THAN SET BY A SELECTED
STANDARD.  /41/  THE RESULTING CEILING RATES, INCLUDING ALLOWANCES FOR
STATE TAXES, WERE 14.5[ PER MCF FOR FIRST VINTAGE AND CASINGHEAD GAS,
AND 16.5[ FOR SECOND VINTAGE GAS.  FOR THOSE PRODUCERS WHO INDIVIDUALLY
MIGHT SUFFER HARDSHIP UNDER THIS RATE SCHEDULE, THE COMMISSION
INDICATED THAT IT WOULD ON RARE OCCASIONS PROVIDE SPECIAL RELIEF, BUT
IT DECLINED TO SPECIFY WHAT CIRCUMSTANCES WOULD JUSTIFY SUCH ACTION. 
/42/ 

ON REVIEW, THE COURT OF APPEALS REFUSED TO APPROVE THE COMMISSION'S
ORDER, HOLDING THAT CERTAIN DETERMINATIONS OF THE ULTIMATE EFFECTS OF
THE ORDER HAD NOT BEEN MADE AS REQUIRED BY FPC V. HOPE NATURAL GAS CO.,
320 U.S. 591 (1944), THAT MORE PRECISE DELINEATION OF THE REQUIREMENTS
FOR RELIEF FROM THE ORDER MUST BE SET FORTH, AND THAT THE COMMISSION
COULD NOT REQUIRE THAT PRODUCERS REFUND EXCESS CHARGES DURING THE
PENDENCY OF THE PROCEEDING UNLESS IT CONCLUDED THAT AGGREGATE ACTUAL
AREA REVENUES EXCEEDED AGGREGATE PERMISSIBLE AREA REVENUES, AND THEN
APPORTIONED ONLY THE EXCESS AMONG PRODUCERS ON AN EQUITABLE BASIS.  375
F.2D 6, 36 (1967). 

ON CERTIORARI, THIS COURT INITIALLY NOTED THAT JUDICIAL REVIEW OF
THE COMMISSION'S ORDERS IS EXTREMELY LIMITED: 

     "SECTION 19(B) OF THE NATURAL GAS ACT PROVIDES WITHOUT

  QUALIFICATION THAT THE 'FINDING OF THE COMMISSION AS TO THE

  FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE

  CONCLUSIVE.'  ##HC307 MORE IMPORTANT, WE HAVE HERETOFORE

  EMPHASIZED THAT CONGRESS HAS ENTRUSTED THE REGULATION OF THE

  NATURAL GAS INDUSTRY TO THE INFORMED JUDGMENT OF THE COMMISSION,

  AND NOT TO THE PREFERENCES OF REVIEWING COURTS.  A PRESUMPTION OF

  VALIDITY THEREFORE ATTACHES TO EACH EXERCISE OF THE COMMISSION'S

  EXPERTISE, AND THOSE WHO WOULD OVERTURN THE COMMISSION'S JUDGMENT

  UNDERTAKE 'THE HEAVY BURDEN OF MAKING A CONVINCING SHOWING THAT

  IT IS INVALID BECAUSE IT IS UNJUST AND UNREASONABLE IN ITS

  CONSEQUENCES.'  FPC V. HOPE NATURAL GAS CO., SUPRA, AT 602.  WE

  ARE NOT OBLIGED TO EXAMINE EACH DETAIL OF THE COMMISSION'S

  DECISION; IF THE 'TOTAL EFFECT OF THE RATE ORDER CANNOT BE SAID

TO BE UNJUST AND UNREASONABLE, JUDICIAL INQUIRY UNDER THE ACT IS

  AT AN END.'  IBID. 

     "MOREOVER, THIS COURT HAS OFTEN ACKNOWLEDGED THAT THE

  COMMISSION IS NOT REQUIRED BY THE CONSTITUTION OR THE NATURAL GAS

  ACT TO ADOPT AS JUST AND REASONABLE ANY PARTICULAR RATE LEVEL;

  RATHER, COURTS AE WITHOUT AUTHORITY TO SET ASIDE ANY RATE

  SELECTED BY THE COMMISSION WHICH IS WITHIN A 'ZONE OF

  REASONABLENESS.'  FPC V. NATURAL GAS PIPELINE CO., 315 U.S. 575,

585.  NO OTHER RULE WOULD BE CONSONANT WITH THE BROAD

  RESPONSIBILITIES GIVEN TO THE COMMISSION BY CONGRESS; IT MUST BE

  FREE, WITHIN THE LIMITATIONS IMPOSED BY PERTINENT CONSTITUTIONAL

  AND STATUTORY COMMANDS, TO DEVISE METHODS OF REGULATION CAPABLE

  OF EQUITABLY RECONCILING DIVERSE AND CONFLICTING INTERESTS." 

  PERMIAN BASIN, 390 U.S., AT 767. 

APPLYING THESE LIMITATIONS IN THE CONTEXT OF REVIEW OF AREA RATE
REGULATION, PERMIAN BASIN DEFINED THE CRITERIA GOVERNING THE SCOPE OF
JUDICIAL REVIEW AS FOLLOWS: 

     "FIRST, (THE REVIEWING COURT) MUST DETERMINE WHETHER THE

  COMMISSION'S ORDER, VIEWED IN LIGHT OF THE REVELANT FACTS AND OF

THE COMMISSION'S BROAD REGULATORY DUTIES, ABUSED OR EXCEEDED ITS

  AUTHORITY.  SECOND, THE COURT MUST EXAMINE THE MANNER IN WHICH

  THE COMMISSION HAS EMPLOYED THE METHODS OF REGULATION WHICH IT

  HAS ITSELF SELECTED, AND MUST DECIDE WHETHER EACH OF THE ORDER'S

  ESSENTIAL ELEMENTS IS SUPPORTED BY SUBSTANTIAL EVIDENCE.  THIRD,

  THE COURT MUST DETERMINE WHETHER THE ORDER MAY REASONABLY BE

  EXPECTED TO MAINTAIN FINANCIAL INTEGRITY, ATTRACT NECESSARY

  CAPITAL, AND FAIRLY COMPENSATE INVESTORS FOR THE RISKS THEY HAVE

  ASSUMED, AND YET PROVIDE APPROPRIATE PROTECTION TO THE RELEVANT

  PUBLIC INTERESTS, BOTH EXISTING AND FORESEEABLE.  THE COURT'S

  RESPONSIBILITY IS NOT TO SUPPLANT THE COMMISSION'S BALANCE OF

  THESE INTERESTS WITH ONE MORE NEARLY TO ITS LIKING, BUT INSTEAD

  TO ASSURE ITSELF THAT THE COMMISSION HAS GIVEN REASONED

  CONSIDERATION TO EACH OF THE PERTINENT FACTORS."  ID., AT 791 -

  792. 

WHERE APPLICATION OF THESE CRITERIA DISCLOSES NO INFIRMITIES IN THE
COMMISSION'S ORDER, THE ORDER CANNOT BE SAID TO PRODUCE AN "ARBITRARY
RESULT," AND MUST BE SUSTAINED.  FPC V. HOPE NATURAL GAS CO., 320 U.S.,
AT 602. 

APPLYING THESE CRITERIA, PERMIAN REVERSED THE COURT OF APPEALS AND
SUSTAINED THE COMMISSION'S ORDER, ALTHOUGH NOTING THAT THE COMMISSION
HAD NOT ADHERED RIGIDLY TO A COST-BASED DETERMINATION OF RATES, MUCH
LESS TO ONE THAT BASED EACH PRODUCER'S RATES ON HIS OWN COSTS.  /43/
EACH DEVIATION FROM COST-BASED PRICING WAS FOUND NOT TO BE UNREASONABLE
AND TO BE CONSISTENT WITH THE COMMISSION'S RESPONSIBILITY TO CONSIDER
NOT MERELY THE INTERESTS OF THE PRODUCERS IN "MAINTAINING) FINANCIAL
INTEGRITY, ATTRACTING) NECESSARY CAPITAL, AND FAIRLY COMPENSATING)
INVESTORS FOR THE RISKS THEY HAVE ASSUMED,"  BUT ALSO " THE RELEVANT
PUBLIC INTERESTS, BOTH EXISTING AND FORESEEABLE."  390 U.S., AT 792. 
"THE COMMISSION'S RESPONSIBILITIES NECESSARILY OBLIGE IT," THE COURT
SAID, "TO GIVE CONTINUING ATTENTION TO VALUES THAT MAY BE REFLECTED
ONLY IMPERFECTLY BY PRODUCERS' COSTS; A REGULATORY METHOD THAT EXCLUDED
AS IMMATERIALL ALL BUT CURRENT OR PROJECTED COSTS COULD NOT PROPERLY
SERVE THE CONSUMER INTERESTS PLACED UNDER THE COMMISSION'S
PROTECTION."  ID., AT 815. 

PERMIAN BASIN TEACHES THAT APPLICATION OF THE THREE CRITERIA OF
JUDICIAL REVIEW OF COMMISSION ORDERS IS PRIMARILY THE TASK OF THE
COURTS OF APPEALS.  FOR "THIS (THE SUPREME) COURT'S AUTHORITY IS
ESSENTIALLY NARROW AND CIRCUMSCRIBED."  ID., AT 766.  THE
RESPONSIBILITY TO ASSESS THE RECORD TO DETERMINE WHETHER AGENCY
FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE IS NOT OURS.  SECTION 19
(B) OF THE ACT /44/  PROVIDES THAT "(THE JUDGMENT AND DECREE OF THE
(COURT OF APPEALS) AFFIRMING, MODIFYING, OR SETTING ASIDE, IN WHOLE OR
IN PART, ANY SUCH ORDER OF THE COMMISSION, SHALL BE FINAL, SUBJECT TO
REVIEW BY THE SUPREME COURT . . . UPON CERTIORARI.  . . ."  WE HAVE
HELD AS TO A LIKE PROVISION IN THE NATIONAL LABOR RELATIONS ACT, 29
U.S.C. 160(E), THAT THUS "(WHETHER ON THE RECORD AS A WHOLE THERE IS
SUBSTANTIAL EVIDENCE TO SUPPORT AGENCY FINDINGS IS A QUESTION WHICH
CONGRESS HAS PLACED IN THE KEEPING OF THE COURTS OF APPEALS.  THIS
COURT WILL INTERVENE ONLY IN WHAT OUGHT TO BE THE RARE INSTANCE WHEN
THE STANDARD APPEARS TO HAVE BEEN MISAPPREHENDED OR GROSSLY
MISAPPLIED."  UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474, 491
(1951). 

        III 

BEFORE REVIEWING THE COURT OF APPEALS^ AFFIRMANCE OF THE
COMMISSION'S 1971 ORDER FOR COMPLIANCE WITH PERMIAN'S REQUIREMENTS, WE
ADDRESS CONTENTIONS THAT CHALLENGE THE STATUTORY AUTHORITY OF THE
COMMISSION TO ADOPT THE ORDER, RATHER THAN THE TERMS OF THE ORDER
ITSELF.  THE FIRST OF THESE CHALLENGES, MADE BY NEW YORK AND MDG, IS
THAT THE COMMISSION HAD NO STATUTORY AUTHORITY TO CHANGE RATES AND
REFUND OBLIGATIONS FIXED IN THE COMMISSION'S 1968 ORDER AFTER THAT
ORDER WAS AFFIRMED BY THE COURT OF APPEALS IN SOLA I. BRIEF FOR MDG 18;
BRIEF FOR NEW YORK 15.  THE ARGUMENT IS THAT THE AFFIRMANCE WAS
"UNQUALIFIED" AND THEREFORE EXHAUSTED THE COURT OF APPEALS' POWERS OF
REVIEW UNDER 19(B), THUS RENDERING ITS AUTHORIZATION TO THE COMMISSION
TO REOPEN ITS 1968 ORDERS WITHOUT LEGAL EFFECT.  BUT THE AFFIRMANCE OF
THE 1968 ORDER WAS NOT "UNQUALIFIED."  ALTHOUGH THE COMMISSION COULD
NOT HAVE REOPENED THE ORDER ON ITS OWN, SEE MONTANA-DAKOTA UTILITIES
CO. V. NORTHWESTERN PUBLIC SERVICE CO., 341 U.S. 246, 254 (1951); FPC
V. HOPE NATURAL GAS CO., 320 U.S., AT 618; THE COURT OF APPEALS'
OPINION ON REHEARING MADE IT "CRYSTAL CLEAR" THAT, DESPITE THE FORM OF
THE COURT'S JUDGMENT, THE COMMISSION WAS FULLY AUTHORIZED TO REOPEN ANY
PART OF THE 1968 ORDER THAT SEEMED APPROPRIATE AND NECESSARY IF
EVIDENCE AS TO THE FUTURE SUPPLY PROBLEM INDICATED THAT THIS SHOULD BE
DONE. 

THE COURT OF APPEALS PROPERLY TOOK THIS STEP IN LIGHT OF NEW
INFORMATION, UNAVAILABLE AT THE TIME OF THE 1968 ORDER, THAT SUGGESTED
THE POSSIBLE INADEQUACY OF THE 1968 DETERMINATION, ALTHOUGH NOT
NECESSARILY AN INADEQUACY THAT JUSTIFIED SETTING ASIDE THE ORDER.  SEE
BALDWIN V. SCOTT COUNTY MILLING CO., 307 U.S. 478 (1939).  MOREOVER,
THE 1968 ORDER HAD NOT BEEN MADE EFFECTIVE, BEING CONTINUOUSLY STAYED
UNTIL WITHDRAWN BY THE 1971 ORDER.  SEE 46 F.P.C., AT 101.  IN THESE
CIRCUMSTANCES, WE CANNOT SAY THAT THE ACTION OF THE COURT OF APPEALS
EXCEEDED ITS POWERS UNDER 19(B) "TO AFFIRM, MODIFY, OR SET ASIDE (AN)
ORDER IN WHOLE OR PART." 

THIS JURISIDICTION TO REVIEW THE ORDERS OF THE COMMISSION IS VESTED
IN A COURT WITH EQUITY POWERS, NATURAL GAS PIPELINE CO. V. FPC, 128
F.2D 481 (CA7 1942), SEE FORD MOTOR CO. V. NLRB, 305 U.S. 364, 373
(1939), AND WE CANNOT SAY THAT THE COURT IMPROPERLY EXERCISED THOSE
POWERS IN THE CIRCUMSTANCES.  DOLCIN CORP. V. FTC, 94 U.S. APP. D.C.
247, 255 - 258, 219 F.2D 742, 750 - 752 (1954) /45/  INDEED, 19(B)
PROVIDES THAT THE COURT OF APPEALS MAY AUTHORIZE THE COMMISSION IN
PROPER CASES TO TAKE NEW EVIDENCE, UPON WHICH THE COMMISSION MAY MODIFY
ITS FINDINGS OF FACT AND MAKE RECOMMENDATIONS CONCERNING THE
DISPOSITION OF ITS ORIGINAL ORDER.  UNDER THE COURT OF APPEALS
DISPOSITION, THE 1968 ORDER WAS THEREFORE NOT FINAL AND THUS IT WAS
WITHIN THE POWER OF THE COMMISSION TO RECONSIDER AND CHANGE IT.  SEE
UNITED GAS IMPROVEMENT CO. V. CALLERY PROPERTIES, 382 U.S. 223, 229
(1965). 

ONLY NEW YORK PRESSES THE SECOND CHALLENGE TO THE COMMISSION'S
STATUTORY AUTHORITY TO ADOPT THE 1971 ORDER.  NEW YORK CONTENDS THAT
THE COMMISSION IS WITHOUT POWER TO ADOPT AS A RATE ORDER A SETTLEMENT
PROPOSAL THAT LACKS UNANIMOUS AGREEMENT OF THE PARTIES TO THE
PROCEEDING.  THAT CONTENTION HAS NO MERIT. 

THE COMMISSION CLEARLY HAD THE POWER TO ADMIT THE AGREEMENT INTO THE
RECORD--INDEED, IT WAS OBLIGED TO CONSIDER IT.  /46/  THAT IT WAS
ADMITTED FOR THE RECORD DID NOT, OF COURSE, ESTABLISH WITHOUT MORE THE
JUSTNESS AND REASONABLENESS OF ITS TERMS.  BUT THE COMMISSION DID NOT
TREAT IT AS SUCH.  AS WE HAVE NOTED, /47/  THE COMMISSION WEIGHED ITS
TERMS BY REFERENCE TO THE ENTIRE RECORD IN THE SOUTHERN LOUISIANA AREA
PROCEEDING SINCE 1961, AND FURTHER SUPPLEMENTED THAT RECORD WITH
EXTENSIVE TESTIMONY AND EXHIBITS DIRECTED AT THE PROPOSAL'S TERMS. 
/48/  WE THINK THAT THE COURT OF APPEALS CORRECTLY ANALYZED THE
SITUATION AND STATED THE CORRECT LEGAL PRINCIPLES: 

     "NO ONE SERIOUSLY DOUBTS THE POWER--INDEED, THE DUTY--OF FPC
TO

  CONSIDER THE TERMS OF A PROPOSED SETTLEMENT WHICH FAILS TO

  RECEIVE UNANIMOUS SUPPORT AS A DECISION ON THE MERITS.  WE AGREE

  WITH THE D.C. CIRCUIT THAT EVEN 'ASSUMING THAT UNDER THE

  COMMISSION'S RULES (A PARTY'S) REJECTION OF THE SETTLEMENT

  RENDERED THE PROPOSAL INEFFECTIVE AS A SETTLEMENT, IT COULD NOT,

  AND WE BELIEVE SHOULD NOT, HAVE PRECLUDED THE COMMISSION FROM

  CONSIDERING THE PROPOSAL ON ITS MERITS.'  MICHIGAN CONSOLIDATED

GAS CO. V. FPC, 1960, 108 U.S. APP. D.C. 409, 283 F.2D 204, 224 .

  . . . 

      "AS IT SHOULD FPC IS EMPLOYING ITS SETTLEMENT POWER UNDER THE

  APA, 5 U.S.C.A. 554 (C), AND ITS OWN RULES 18 C.F.R. 1.18(A), TO

  FURTHER THE RESOLUTION OF AREA RATE PROCEEDINGS.  IF A PROPOSAL

  ENJOYS UNANIMOUS SUPPORT FROM ALL OF THE IMMEDIATE PARTIES, IT

  COULD CERTAINLY BE ADOPTED AS A SETTLEMENT AGREEMENT IF APPROVED

  IN THE GENERAL INTEREST OF THE PUBLIC.  BUT EVEN IF THERE IS A

  LACK OF UNANIMITY, IT MAY BE ADOPTED AS A RESOLUTION ON THE

  MERITS, IF FPC MAKES AN INDEPENDENT FINDING SUPPORTED BY

  'SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE' THAT THE PROPOSAL

  WILL ESTABLISH 'JUST AND REASONABLE' RATES FOR THE AREA."  483

  F.2D, AT 893. 

THE CHOICE OF AN APPROPRIATE STRUCTURE FOR THE RATE ORDER IS A
MATTER OF COMMISSION DISCRETION, TO BE TESTED BY ITS EFFECTS.  THE
CHOICE IS NOT THE LESS APPROPRIATE BECAUSE THE COMMISSION DID NOT
CONCEIVE OF THE STRUCTURE INDEPENDENTLY. 

NEW YORK PRESENTS A FINAL ARGUMENT AGAINST THE COMMISSION'S
AUTHORITY.  IT CONTENDS THAT THE COURT OF APPEALS' OPINION ON REHEARING
IN SOLA I AUTHORIZED MODIFICATION OF THE 1968 REFUND PROVISIONS ONLY IF
THE 1968 REFUNDS "ARE TOO BURDENSOME IN LIGHT OF NEW EVIDENCE TO BE IN
THE PUBLIC INTEREST."  444 F.2D, AT 127.  IT ARGUES THAT THIS MEANS THE
COMMISSION WAS REQUIRED FIRST TO FIND, BASED ON SUBSTANTIAL NEW
EVIDENCE, THAT REFUNDS "WOULD SUBSTANTIALLY AND ADVERSELY AFFECT THE
PRODUCERS'  ABILITY TO MEET THE CONTINUING GAS NEEDS OF THE INTERSTATE
MARKET," BRIEF FOR NEW YORK 18, AND CONTENDS THAT THE REVISION OF THE
REFUND TERMS IS THEREFORE UNAUTHORIZED BECAUSE THE COMMISSION MADE NO
SUCH FINDING.  NEW YORK'S PREMISE IS UNSUPPORTABLE.  THE OPINION ON
REHEARING IS EXPLICIT THAT THE COMMISSION WAS TO HAVE "GREAT
FLEXIBILITY," AND COULD "MAKE RETROSPECTIVE AS WELL AS PROSPECTIVE
ADJUSTMENTS IN THIS CASE IF IT FINDS THAT IT IS IN THE PUBLIC INTEREST
TO DO SO."  444 F.2D, AT 126 - 127.  MOREOVER, IN THE OPINION UNDER
REVIEW, THE COURT OF APPEALS FLATLY REJECTED THE ARGUMENT NEW YORK HAS
REPEATED IN THIS COURT.  "(WE CATEGORICALLY REJECTED (IN SOLA I) THE
NOTION THAT THE LABEL 'AFFIRMANCE' COULD POSSIBLY IMPAIR RPC'S ABILITY
TO ALTER OR MODIFY ANY OF THE PROVISIONS, PARTICULARLY THE REFUND
PROVISIONS, OF ITS SOLA I RATE SCHEME IF IT BELIEVED THAT THE
EXIGENCIES OF THE GAS INDUSTRY REQUIRED MORE EFFECTIVE REMEDIAL
MEASURES."  483 F.2D, AT 904. 

        IV 

WE TURN NOW TO PETITIONERS' CHALLENGES TO THE RATE ORDER ITSELF.  WE
TREAT THESE CONTENTIONS IN THREE GROUPS:  CHALLENGES TO THE ESTABLISHED
PRICE LEVELS, CHALLENGES TO THE COMMISSION'S ALLOCATION OF GAS AND
RECEIPTS AMONG PIPELINES AND PRODUCERS THROUGH THE REFUND CREDITS AND
CONTINGENT ESCALATIONS, AND, FINALLY, CLAIMS THAT CERTAIN SPECIFIC
PROVISIONS OF THE RATE ORDER LACK SUBSTANTIAL EVIDENCE. 

        A 

PETITIONER MOBIL CONTENDS THAT THE RATES FIXED FOR BOTH FLOWING OR
FIRST VINTAGE GAS AND NEW OR SECOND VINTAGE GAS ARE TOO LOW.  NEW YORK
AND MDG ATTACK THE RATES FOR FLOWING GAS AS TOO HIGH, BUT DO NOT ATTACK
THE NEW-GAS RATES.  EACH OF THE ARGUMENTS IS PREMISED ON A COMMON
ERROR, THAT CERTAIN PROVISONS OF THE ORDER CAN BE ISOLATED AND VIEWED
WITHOUT REGARD TO THE TOTAL EFFECT THE ORDER IS DESIGNED TO ACHIEVE. 

MOBIL'S ATTACK ON THE COMMISSION'S EVIDENCE OF COSTS IS CLEARLY
FRIVOLOUS.  THE COMMISSION TOOK EXTENSIVE EVIDENCE OF COSTS IN ITS 1968
ORDER HEARINGS FOR FLOWING GAS, AND IN BOTH ITS 1968-ORDER AND 1971
ORDER HEARINGS FOR NEW GAS.  IN RESPONSE TO THE COMMISSION'S RATES,
SELECTED FROM THE FINAL COST "RANGE" IT FOUND TO BE JUSTIFIABLE ON THE
BASIS OF THE ENTIRE RECORD.  WE HAVE EXAMINED THE TESTIMONY CITED AND
DO NOT THINK THAT IT SUSTAINS MOBIL'S HEAVY BURDEN OF SHOWING THAT THE
FINAL COMMISSION CHOICE WAS OUTSIDE WHAT THE COURT OF APPEALS COULD
HAVE FOUND TO LIE WITHIN THE COMMISSION'S AUTHORITY.  FPC V. NATURAL
GAS PIPELINE CO., 315 U.S. 575, 585 (1942). 

MOBIL FURTHER CONTENDS THAT THE INCLUSION OF REFUND WORKOFF CREDITS
AND CONTINGENT ESCALATIONS IN THE COMMISSION'S JUST AND REASONABLE
RATES INDICATES THAT PRODUCERS UNABLE TO GAIN PART OR ALL OF THEIR
SHARE OF SUCH PAYMENTS WILL RECEIVE MERELY THEIR (BARE-BONES" COSTS,
WHICH CONSTITUTE ILLEGALLY LOW PRICES.  WE DO NOT QUESTION THAT SUCH
PRODUCERS MAY RECEIVE LESS PER UNIT OF GAS THAN WILL OTHERS.  BUT THAT
HARDLY INVALIDATES THE COMMISSION'S ORDER.  SEE PERMIAN BASIN, 390
U.S., AT 818 - 819.  MOBIL'S ARGUMENT ASSUMES THAT THERE IS ONLY ONE
JUST AND REASONABLE RATE POSSIBLE FOR EACH VINTAGE OF GAS, AND THAT
THIS RATE MUST BE BASED ENTIRELY ON SOME CONCEPT OF COST PLUS A
REASONABLE RATE OF RETURN.  WE REJECTED THIS ARGUMENT IN PERMIAN BASIN
AND WE REJECT IT AGAIN HERE.  THE COMMISSION EXPLICITLY BASED ITS
ADDITIONAL "NON-COST"  INCENTIVES ON THE EVIDENCE OF A NEED FOR
INCREASED SUPPLIES.  OBVIOUSLY A PRICE SUFFICIENT TO MAINTAIN A
PRODUCER, WHILE NOT ITSELF NECESSARILY REQUIRED BY THE ACT, /49/  MAY
NOT BE SUFFICIENT ALSO TO ENCOURAGE AN INCREASE IN PRODUCTION.  AS WE
SAID IN PERMIAN BASIN, SUPRA, AT 796 - 798: 

"THE SUPPLY OF GAS-WELL GAS IS THEREFORE RELATIVELY ELASTIC, AND ITS
PRICE CAN MEANINGFULLY BE EMPLOYED BY THE COMMISSION TO ENCOURAGE
EXPLORATION AND PRODUCTION.  . . .".  . . WE HAVE EMPHASIZED THAT
COURTS ARE WITHOUT AUTHORITY TO SET ASIDE ANY RATE ADOPTED BY THE
COMMISSION WHICH IS WITHIN A 'ZONE OF REASONABLENESS.'  . . . THE
COMMISSION MAY, WITHIN THIS ZONE, EMPLOY PRICE FUNCTIONALLY IN ORDER TO
ACHIEVE RELEVANT REGULATORY PURPOSES; IT MAY, IN PARTICULAR, TAKE FULLY
INTO ACCOUNT THE PROBABLE CONSEQUENCES OF A GIVEN PRICE LEVEL FOR
FUTURE PROGRAMS OF EXPLORATION AND PRODUCTION.  NOTHING IN THE PURPOSES
OR HISTORY OF THE ACT FORBIDS THE COMMISSION TO REQUIRE DIFFERENT
PRICES FOR DIFFERENT SALES, EVEN IF THE DISTINCTIONS ARE UNRELATED TO
QUALITY, IF THESE ARRANGEMENTS ARE 'NECESSARY OR APPROPRIATE TO CARRY
OUT THE PROVISIONS OF THIS ACT.'  . . . WE HOLD THAT THE STATUTORY
'JUST AND REASONABLE' STANDARD PERMITS THE COMMISSION TO REQUIRE
DIFFERENCES IN PRICE FOR SIMULTANEOUS SALES OF GAS OF IDENTICAL
QUALITY, IF IT HAS PERMISSIBLY FOUND THAT SUCH DIFFERENCES WILL
EFFECTIVELY SERVE THE REGULATORY PURPOSES CONTEMPLATED BY CONGRESS." 

PLAINLY THE COURT OF APPEALS DID NOT ERR IN DECIDING THAT IT WAS
WELL WITHIN COMMISSION DISCRETION AND EXPERTISE TO CONCLUDE THAT THE
REFUND WORKOFF CREDITS AND CONTINGENT ESCALATIONS COULD PROVIDE
OPPORTUNITY FOR INCREASED PRICES THAT WOULD HELP IN GENERATING CAPITAL
FUNDS AND IN MEETING RISING COSTS, WHILE ASSURING THAT SUCH INCREASES
WOULD NOT BE LEVIED UPON CONSUMERS UNLESS ACCOMPANIED BY INCREASED
SUPPLIES OF GAS.  IT IS TRUE THAT THE COMMISSION CONCLUDED THAT IT
COULD NOT DETERMINE THE PRECISE AMOUNT OF ADDITIONAL GAS SUPPLY THAT
WOULD BE FOUND AND DEDICATED TO INTERSTATE SALES AS A RESULT OF THIS
FORMULA.  BUT THIS WAS ALSO TRUE OF ANY CHANGE IT MIGHT HAVE MADE IN
GAS PRICES.  THE COMMISSION TOOK MASSIVE EVIDENCE ON SUPPLY, DEMAND,
AND THE RELATION BETWEEN THE TWO.  /50/  ITS DIFFICULTIES, WHILE NOT
MINOR, /51/  DID NOT STEM FROM ANY FAILURE TO SEEK ANSWERS.  RATHER,
THE COMMISSION POINTED OUT THAT THE RESULTS OF EXPLORATORY ACTIVITY ARE
BY NATURE DEPENDENT TO SOME EXTENT ON CHANCE, AND THE LEVEL OF
EXPLORATORY ACTIVITY IN TURN MAY BE INFLUENCED BY MANY OTHER FACTORS
BESIDES PRICE, INCLUDING, THE COMMISSION SAID, "MONETARY INFLATION,
CHANGES IN REAL COST OF INPUT RESOURCES, AVAILABILITY OF INPUT
RESOURCES, CHANGES IN ALTERNATIVE INVESTMENT OPPORTUNITIES, DEVELOPMENT
OF NEW PRODUCING AREAS, SIZE OF PROSPECTIVE RESERVOIRS, CHANGES IN
BUSINESS CONFIDENCE, DEGREE OF DIRECTIONALITY OF EXPLORATORY EFFORT
(TOWARD GAS OR OIL), CHANGES IN INDUSTRY TECHNOLOGY, AND OTHER FACTORS
INFLUENCING BUSINESS DECISIONS,"  /52/  WE THINK THE RECORD
SUFFICIENTLY SUPPORTS THE COMMISSION'S CONCLUSION: 

     "SUMMARIZING, THERE EXISTS A POSITIVE RELATIONSHIP BETWEEN GAS

CONTRACT PRICE LEVELS AND EXPLORATORY EFFORT; NO RELIABLE

  QUANTITATIVE FORECASTS MAY BE MADE BY INCREMENTS OF ADDITIONAL

  GAS SUPPLY RESULTING FROM SPECIFIC INCREASED GAS PRICES;

  INCREASES IN CEILING PRICES WHICH YIELD INCREASES IN PRODUCER

  REVENUES WILL RESULT IN EXPANDED GAS EXPLORATION ACTIVITY; AND

  THE ADEQUACY OF EXPANDED GAS EXPLORATORY ACTIVITY IN TERMS OF

  SUFFICIENCY OF GAS SUPPLY IN RELATION TO GAS DEMANDS MUST BE

  DETERMINED BY CONTINUED COMMISSION OBSERVATION OF THE RESULTS OF

  OUR DECISIONS."  46 F.P.C., AT 124. 

NEW YORK'S CONTENTION THAT THE RATES ON FLOWING OR FIRST VINTAGE GAS
ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IS ALSO PREDICATED ON AN
ERRONEOUSLY LIMITED VIEW OF THE PERMISSIBLE RANGE OF THE COMMISSION'S
AUTHORITY TO EMPLOY PRICE TO ENCOURAGE EXPLORATION OR PRODUCTION. 
REDUCED TO SIMPLEST FORM, NEW YORK'S CONTENTION IS THAT THE 1968 ORDER
SET JUST AND REASONABLE RATES FOR FIRST VINTAGE GAS, THAT NO NEW
EVIDENCE WAS INTRODUCED AS TO THE COST OF THAT GAS, AND THAT THE 1971
ORDER PRICES FOR THAT GAS ARE CONSEQUENTLY EXCESSIVE.  AGAIN, AS WE
SAID IN PERMIAN, THE COMMISSION IS NOT SO LIMITED IN ITS CONSTRUCTION
OF RATE FORMULAE.  ITS JUSTIFICATION HERE FOR INCREASING THE PRICE OF
FLOWING OR FIST VINTAGE GAS WAS NOT THAT NEW EVIDENCE SHOWED THAT THE
CONDITIONS OF PRODUCING THAT GAS DIFFERED FROM THE CONDITIONS FOUND IN
THE 1968 OPINION, BUT, AS THE COMMISSION FRANKLY ACKNOWLEDGED, NEW
REVENUES WERE DEEMED NECESSARY TO EXPAND FUTURE PRODUCTION.  AS BETWEEN
PLACING THE BURDEN OF THAT EXPANSION ON NEW OR SECOND VINTAGE GAS ALONE
OR SPREADING IT OVER BOTH OLD AND NEW GAS, IT JUDGED THE LATTER MORE
EQUITABLE AND MORE LIKELY TO LEAD TO THE IMMEDIATELY INCREASED CAPITAL
NECESSARY IN THE FACE OF A CRISIS.  WE SEE NOTHING IN NEW YORK'S
ARGUMENT TO SUGGEST THAT THE COMMISSION COULD NOT--IN VIEW OF ITS
FINDING THAT INCREASED REVENUES WERE NECESSARY-PLACE THE BURDEN OF
THOSE PAYMENTS ON ALL USERS RATHER THAN ON THOSE ALONE WHO PURCHASED
GAS IN THE FUTURE.  INDEED, IT IS WORTH NOTING THAT THE COMMISSION'S
RATE ORDERS IN PERMIAN INCLUDED IN THE COST COMPONENTS OF GAS A NONCOST
PRICE ELEMENT FOR FUTURE EXPANSION OF EXPLORATORY EFFORT.  /53/ 

IN THIS SITUATION, THE COMMISSION COULD REASONABLY CHOOSE ITS
FORMULA AS AN APPROPRIATE MECHANISM FOR PROTECTING THE PUBLIC
INTEREST.  AND, AGAINST THE BACKGROUND OF A SERIOUS AND GROWING
DOMESTIC GAS SHORTAGE, THE COURT OF APPEALS COULD CERTAINLY CONCLUDE
THAT THE COMMISSION MIGHT REASONABLY DECIDE THAT, AS COMPARED WITH
ADJUSTMENTS IN THE RATE CEILINGS FOR GAS PRODUCERS TO INDUCE MORE
EXPLORATION AND PRODUCTION, ITS RESPONSIBILITY TO MAINTAIN ADEQUATE
SUPPLIES AT THE LOWEST REASONABLE RATE COULD BETTER BE DISCHARGED BY
MEANS OF THE CONTINGENT ESCALATION AND REFUND CREDIT PROVISIONS.  WE
THEREFORE AGREE WITH THE COURT OF APPEALS' HOLDING THAT "THESE PERIODIC
ESCALATIONS WERE A PROPER SUBJECT FOR THE EXERCISE OF ADMINISTRATIVE
DISCRETION AND CLEARLY FALL WITHIN THAT 'ZONE OF REASONABLENESS' WHICH
WE ALLOW FPC ON REVIEW."  483 F.2D, AT 908. 

        B 

MOBIL, NEW YORK, AND MDG ALL RAISE CLAIMS THAT EVEN IF THE
COMMISSION'S RATES ARE SUFFICIENT TO SATISFY THE ACT'S MINIMUM
REQUIREMENTS AS TO AMOUNT AND, ON THE BASIS OF THE COMMISSION'S CHOSEN
METHODOLOGY, ARE SUPPORTED BY SUBSTANTIAL EVIDENCE, THEY ARE
NONETHELESS UNDULY DISCRIMINATORY AND THEREFORE UNLAWFUL UNDER 4 AND 5
OF THE ACT.  THIS ATTACK IS DIRECTED BOTH TO THE CONTINGENT ESCALATIONS
ON FLOWING OR FIRST VINTAGE GAS AND TO THE REFUND CREDITS. 

THE BACKGROUND TO MOBIL'S ARGUMENT IS A COMMISSION PROGRAM
INAUGURATED AFTER PROMULGATION IN 1960 OF GUIDELINES FOR AREA RATE
REGULATION.  STATEMENT OF GENERAL POLICY NO. 61 - 1, 24 F.P.C. 818
(1960); FOURTH AMENDMENT TO STATEMENT OF GENERAL POLICY NO. 61 - 1, 26
C.P.C. 661 (1961).  THAT PROGRAM WAS AIMED AT DISPOSING OF CLAIMS
ARISING FROM RATES THAT EXCEEDED GUIDELINE LEVELS.  THE PROGRAM
ENCOURAGED SETTLEMENT OF CONTESTED RATE DOCKETS AND RESULTED IN
SUBSTANTIAL PRODUCER REFUNDS, REDUCTION OF PRODUCER RATES TO GUIDELINE
LEVELS, AND MORATORIA ON PRODUCER RATE INCREASES FOR SUBSTANTIAL
PERIODS.  MAJOR PRODUCERS LIKE MOBIL THAT COOPERATED WITH THE PROGRAM
THUS HAD LITTLE IF ANY REFUND OBLIGATION TO "WORK OFF" AMONG THE 150
MILLION-DOLLAR REFUNDS DIRECTED BY THE 1971 ORDER, WHEREAS PRODUCERS
WHO FOR OVER A DECADE HAD NOT COOPERATED WITH FPC BUT HAD CONTINUED
COLLECTION OF HIGHER RATES, HAD HIGH REFUND LIABILITIES, AND THUS
ENJOYED THE BENEFITS OF THE REFUND CREDIT FORMULA.  MOBIL CONTENDS
UNDUE DISCRIMINATION RESULTS BECAUSE THESE PRODUCERS EARN REFUND
CREDITS BY DEDICATING NEW NATURAL GAS RESERVES WHICH ARE NOT COUNTED
TOWARD INDUSTRY ESCALATIONS, YET ALSO RECEIVE ALL ESCALATIONS IN
FLOWING GAS CEILING RATES EARNED BY DEDICATION OF NEW NATURAL GAS
RESERVES BY OTHER PRODUCERS.  MOREOVER, MOBIL'S ARGUMENT CONTINUES, THE
REFUND CREDITS PROVIDE THE NONCOOPERATING PRODUCERS WITH WORKING
CAPITAL THEY MAY USE, FOR EXAMPLE, IN COMPETITIVE LEASE BIDDINGS AND
OTHER CORPORATE ACTIVITIES, WHILE COOPERATING PRODUCERS LIKE MOBIL ARE
NOT ALLOWED COMPARABLE ALLOWANCES IN THE REVENUES TO BE REALIZED FROM
THE AREA RATES.     THE COMMISSION SQUARELY FACED UP TO THE MOBIL
ARGUMENT AS FOLLOWS, 46 F.P.C., AT 109 - 110: 

"THE SUBSTANCE OF THEIR ARGUMENT IS THAT THE RATE DESIGN IN THE
SETTLEMENT PROPOSAL UNLAWFULLY DISCRIMINATES AGAINST PRODUCERS WHO IN
THE PAST COOPERATED WITH THE COMMISSION AND CONSUMER AND DISTRIBUTOR
INTERESTS BY EXECUTING COMPANYWIDE SETTLEMENTS, AND MADE REFUNDS WHICH
REDUCED THEIR REVENUES TO THE GENERAL LEVEL OF THE COMMISSION'S SECTION
7 GUIDELINE LEVEL, AND IN FAVOR OF PRODUCERS WHO DID NOT ENTER INTO
SUCH RATE SETTLEMENTS OR OTHERWISE REDUCE THEIR CONTESTED SECTION 4 AND
CONSIDERABLY HIGHER THAN THOSE REALIZED BY THE GROUP WHICH SETTLED. 
UNDER THE PROPOSED SETTLEMENT, AS MOBIL POINTS OUT, ONE GROUP IS IN
EFFECT REWARDED FOR THEIR RELATIVE INTRANSIGENCE--THEY WILL BE ABLE TO
RETAIN REVENUES COLLECTED UP TO THE AGREED 22.375[ (WHERE THEIR
CONTRACTS PERMIT) AND ACHIEVE A FAVORED REVENUE POSITION. 

        .     .         .         .         . 

     "THE LOGIC OF THIS (MOBIL'S) POSITION CANNOT BE ASSAILED. 

  CANDOR REQUIRES US TO ADMIT THAT SOME OF THE PREDICTED INEQUITIES

  AS AMONG PROCUDERS WILL SURELY OCCUR, AND THOSE WHO HAVE

  ATTEMPTED TO WORK 'WITHIN THE SYSTEM' ARE COMPARATIVELY

  DISADVANTAGED.  WE HAVE CHOSEN TO GO THE ROUTE OF THE ALTERNATIVE

  RATE DESIGN SUGGESTED IN THE (SETTLEMENT) PROPOSAL.  THE

  INEQUITABLE CONSEQUENCES WHICH MIGHT FLOW FROM IT HAVE TO BE

  COMPARED WITH ITS ADVANTAGES, AND . . . NO SCHEME CAN BE FREE OF

  SOME INEQUITIES.  THE BROADER ACCEPTABILITY OF THE (SETTLEMENT)

  PROPOSAL WITH THE DISTRIBUTOR GROUP IMPELS US TO ACT AS WE DO." 

IN OTHER WORDS, IT WAS THE COMMISSION'S JUDGMENT THAT EVEN THOUGH
THE REFUND CREDIT DEVICE DOES NOT OPERATE AS FAVORABLY FOR PRODUCERS
WHO PAID REFUNDS AND LOWERED RATES, THE ADVANTAGES IN THE PUBLIC
INTEREST THAT COULD RESULT FROM ENCOURAGING EXPLORATION AND INCREASED
PRODUCTION OVERRODE SUCH POSSIBLE INEQUITABLE CONSEQUENCES.  THE COURT
OF APPEALS HELD THAT IN THUS STRIKING THE BALANCE, THE COMMISSION ACTED
WITHIN ITS STATUTORY AUTHORITY UPON SUBSTANTIAL EVIDENCE.  THE COURT OF
APPEALS STATED, 483 F.2D AT 905: 

     FPC CONCLUDED THAT THE OVERALL STRUCTURE WOULD STIMULATE

GREATER EXPLORATION AND DEVELOPMENT AND HAVE A GENERAL

  PRO-COMPETITIVE EFFECT.  WE WILL NOT REJECT AN ADMINISTRATIVE

  DECISION MERELY BECAUSE ONE PRODUCER'S PIECE OF CAKE IS ICED AND

  ANOTHER'S IS NOT.  THE CRUCIAL FACTOR, IN TOTAL ALIGNMENT WITH

  BOTH PERMIAN AND SOLA I, IS THAT BOTH GET SOME CAKE.  GIVEN THE

  WISDON OF THE ADMINISTRATIVE DESIRE TO ELICIT NEW SUPPLY, AND

  ACCEPTING THE PROPOSITION THAT THE INCALCULABLE RELATIONSHIP

  BETWEEN RATE AND SUPPLY IS POSITIVE, WE REFUSE TO TAMPER WITH AN

  OVERALL PROGRAM WHICH EFFECTIVELY EXPLOITS THAT RELATIONSHIP. 

  FPC'S ORDER SETTING THE TOTAL REFUND OBLIGATION OF ALL GAS

  PRODUCERS IN (THE SOUTHERN LOUISIANA AREA) IS THEREFORE FULLY

SUSTAINED." 

THE QUESTION ULTIMATELY BECOMES WHETHER THIS DEGREE OF
DISCRIMINATION IN SOME OF THE PROVISIONS OF THE RATE ORDER RENDERS THE
ORDER UNJUST AND UNREASONABLE AS A WHOLE, DESPITE ITS OVERALL BALANCE
OF EFFECTS AND PURPOSES.  OBVIOUSLY, SOME DISCRIMINATION ARISES FROM
THE MERE FACT OF AREA, RATHER THAN INDIVIDUAL PRODUCER, REGULATION, BUT
PERMIAN HELD SUCH EFFECTS JUSTIFIED.  SIMILARLY, DEPARTURE FROM COST
BASING IN SETTING RATES CAN, ON MOBIL'S THEORY OF THE MEANING OF
"DISCRIMINATION," BE SAID TO BE DISCRIMINATORY, BUT PERMIAN HELD THAT
THIS TOO MAY BE JUSTIFIED BY OTHER REGULATORY CONCERNS.  HERE, ALTHOUGH
THE IMPACT ON MOBIL EXISTS, THE SIZE OF THAT IMPACT WILL DEPEND ON THE
FORTUITY OF OTHER PRODUCERS' SUCCESS IN FUTURE EXPLORATORY EFFORTS,
AND, OF COURSE, THE FAVORABLE TERMS OF ITS SETTLEMENT WOULD HAVE TO BE
CONSIDERED IN MITIGATION OF THAT IMPACT. 

WE CANNOT SAY THAT THE COURT OF APPEALS MISAPPREHENDED OR GROSSLY
MISAPPLIED THE SUBSTANTIAL-EVIDENCE STANDARD IN CONCLUDING THAT THE
COMMISSION'S ASSESSMENT OF THE NEED FOR THE REFUND CREDITS, COMPARED TO
THE COSTS AND BENEFITS OF SOME OTHER SCHEME, WAS ADEQUATELY SUPPORTED. 
MOBIL VOLUNTARILY EXERCISED A BUSINESS JUDGMENT IN DECIDING EARLY IN
THE COURSE OF THE PROCEEDINGS TO COMPROMISE IN ADVANCE REFUND
LIABILITIES THAT MIGHT BE IMPOSED UPON IT AT THE CONCLUSION OF THE
VARIOUS RATE PROCEEDINGS.  IN A SENSE, THEREFORE, THE CLAIMED
DISCRIMINATION ARISES SOLELY FROM ITS VOLUNTARY DECISION.  THIS WAS
PART OF THE COMMISSION'S ANSWER TO MOBIL'S CONTENTION, 46 F.P.C., AT
135, "PARTIES WHO ENTER INTO SETTLEMENTS OR THOSE WHO REFUSE TO DO SO,
ALWAYS RUN THE RISK THAT THE ULTIMATE COMMISSION DETERMINATION MAY BE
HIGHER OR LOWER THAN THE SETTLEMENT LEVELS."  AND THE COURT OF APPEALS
POINTED OUT, 4783 F.2D, AT 906 N. 31:  "IF THE (1971) RATES WERE LOWER
THAN THOSE ESTABLISHED IN THESE AGREEMENTS, THE PRIVATE SETTLEMENTS
WOULD HAVE BEEN WORTHWHILE.  AS IT TURNS OUT, FPC WAS MORE GENEROUS IN
(1971) THAN WAS ANTICIPATED.  BUT THIS CLEARLY FURNISHES NO BASIS FOR
ATTACK."  MOREOVER, IT IS A MATTER OF SPECULATION WHETHER MOBIL'S GAIN
FROM ITS SETTLEMENT ACTUALLY MIGHT BE LESS ADVANTAGEOUS THAN ITS
HYPOTHETICAL GAINS FROM REFUND CREDITS. 

NEW YORK AND MDG ARGUE THAT THE REFUND CREDIT FORMULA IS
DISCRIMINATORY AGAINST PIPELINE PURCHASERS BECAUSE IT PERMITS PRODUCERS
TO WORK OFF REFUNDS BY OFFERING 50%, RATHER THAN 100%, OF THE NEW
RESERVES TO PIPELINE PURCHASERS OTHER THAN THOSE OWED THE REFUNDS.  IT
MAY SUFFICE TO ANSWER THAT THE PIPELING PURCHASERS AFFECTED MAKE NO
COMPLAINT.  IN ANY EVENT, SINCE THE PURPOSE OF THE DEVICE IS TO
INCREASE SUPPLY, WE CANNOT SAY THAT THE COURT OF APPEALS ERRED IN
HOLDING THAT THE PROVISON WAS WITHIN COMMISSION DISCRETION.  THE RECORD
SHOWS THAT TWO-THIRDS OF THE REFUND OBLIGATIONS ARE OWED TO THREE OF
THE 14 PIPELINE COMPANIES SERVING THE AREA.  /54/  THE COMMISSION COULD
REASONABLY CONCLUDE THAT IN GUARANTEEING THAT 50% OF THE NEW RESERVES
MUST BE OFFERED TO THESE THREE COMPANIES, THEIR PRODUCERS' INCENTIVE TO
EXPLORE FOR AND PRODUCE NEW GAS ANYWHERE IN THE AREA, COULD RESULT IN
THEIR DEDICATION OF NEW RESERVES THAT WOULD EXCEED IN BENEFIT THE
AMOUNT OF THE REFUNDS. 

IT IS ALSO CONTENDED THAT, BECAUSE THE WORK-OFF PROVISION OF THE
ORDER APPLIES ENTIRELY TO PRESENT PRODUCERS, THE WORK-OFF PROVISION
"IMPERILS) THE ENTRY OF NEW PRODUCER ENTRANTS AND (GIVES) A COMPETITIVE
ADVANTAGE TO PRODUCERS WHO HAD CHARGED THE MOST UNREASONABLE RATES IN
THE PAST."  BRIEF FOR MDG 47.  THE 0.5[ PER MCF INCENTIVE INCREASES ON
FLOWING GAS ARE ATTACKED ON THE SAME GROUND.  BRIEF FOR NEW YORK 37. 
THE COURT OF APPEALS, ADDRESSING THIS ATTACK UPON BOTH THE CONTINGENT
ESCALATION PROVISIONS AND THE REFUND WORK-OFFS, SUFFICIENTLY ANSWERED
THESE ARGUMENTS: 

"AND FOR THAT UNNAMED NEW MARKET ENTRANT, FOR WHOM MUCH CONCERN IS
EXPRESSED, WE FAIL TO SEE WHY HE WOULD BE IN THE LEAST BIT DISSUADED
FROM COMMITTING NEW RESERVES AT 26[/MCF BY THE FACT THAT IT MIGHT ALLOW
SOME OF HIS COMPETITORS TO RAISE THEIR 22.375[/MCF FLOWING GAS PRICE BY
A HALF-PENNY."  483 F.2D, AT 908. 

FINALLY, NEW YORK ARGUES THAT SOME PRODUCERS MIGHT ABANDON THEIR
NORMAL BUSINESS OF EXPLORING FOR AND DEVELOPING NEW RESERVES AND YET
ENJOY THE 0.5[ PER MCF INCREASE IN THEIR PRICES FOR FLOWING GAS IF
OTHER PRODUCERS GO AHEAD AND CONTRIBUTE SUBSTANTIAL ADDITIONAL
RESERVES.  WE ARE NOT PERSUADED.  THE COMMISSION'S BELIEF THAT
PRODUCERS ALREADY OPERATING IN THE AREA WILL CONTINUE TO DO SO IS
CERTAINLY AT LEAST AN EQUALLY TENABLE JUDGMENT. 

THE COMMISSION'S PURPOSE IS TO OBTAIN INCREASING PRODUCTION OF GAS,
AND ITS TARGETS ARE NOT SO DEMONSTRABLY UNRELATED AS TO JUSTIFY
ACCEPTANCE OF NEW YORK'S FEARS THAT CONTINGENT ESCALATIONS WILL HAVE A
NEGATIVE EFFECT ON OVERALL EXPLORATORY EFFORT.  IN ANY EVENT, OTHER
THAN THE EXPRESSED FEARS, NEW YORK OFFERED NOTHING TO OVERCOME THE
"PRESUMPTION OF VALIDITY (THAT) ATTACHES TO EACH EXERCISE OF THE
COMMISSION'S EXPERTISE.  . . . (THOSE WHO WOULD OVERTURN THE
COMMISSION'S JUDGMENT UNDERTAKE 'THE HEAVY BURDEN OF MAKING A
CONVINCING SHOWING THAT IT IS INVALID BECAUSE IT IS UNJUST AND
UNREASONABLE IN ITS CONSEQUENCES.'"  PERMIAN BASIN, 390 U.S., AT 967. 

   C 

WE COME LAST IN OUR CONSIDERATION OF THE COMMISSION'S ORDER TO A
SERIES OF MORE NARROWLY DRAWN OBJECTIONS RAISED BY THE VARIOUS
PARTIES.  MOBIL OBJECTS TO THE COMMISSION'S FIXING OF MORATORIA ON NEW
RATE FILINGS--UNTIL OCTOBER 1, 1976, FOR FLOWING OR FIRST VINTAGE GAS
CONTRACTS, AND UNTIL OCTOBER 1, 1977, FOR NEW OR SECOND VINTAGE GAS
CONTRACTS.  IT CONTENDS THAT THOSE PROVISIONS ARE UNSUPPORTED BY
REQUIRED FINDINGS OF FACT AND BY SUBSTANTIAL EVIDENCE.  THE COURT OF
APPEALS REACHED A CONTRARY CONCLUSION AND WE ARE NOT ABLE TO SAY THAT
THIS CONCLUSION MISAPPREHENDED OR GROSSLY MISAPPLIED THE SUBSTANTIAL
EVIDENCE STANDARD.  WE POINTED OUT IN PERMIAN BASIN THAT, UNLESS RAISED
AS AN ATTACK ON THE VIABILITY OF THE ENTIRE ORDER, SUCH CLAIMS ARE, AT
BEST, PREMATURE.  IT IS TRUE, AS MOBIL ARGUES, THAT THE UNDERLYING
CONDITIONS OF STABILITY JUSTIFYING THE MORATORIUM IN PERMIAN HAVE BEEN
FOUND BY THE COMMISSION TO BE NO LONGER TRUE.  BUT THE COMMISSION HAS
RESPONSIVELY SHIFTED FROM RELIANCE UPON STABLE PRICES TO RELIANCE UPON
AUTOMATIC ESCALATIONS TOGETHER WITH REFUND CREDITS AND CONTINGENT
ESCALATIONS.  EVEN AS TO PRODUCERS LIKE MOBIL THAT SETTLED (FOR A YET
UNKNOWN FINANCIAL BENEFIT) THEIR REFUND OBLIGATIONS, THE CONTINGENT
ESCALATIONS AND AUTOMATIC ESCALATIONS INTRODUCED FOR THE PURPOSE OF
BOTH ENCOURAGING INCREASED EXPLORATORY ACTIVITY AND COVERING INFLATION
COSTS OFFER ADEQUATE ASSURANCES OF KEEPING THOSE PRODUCERS ABOVE THAT
LINE WHERE A MORATORIUM MIGHT RUN AFOUL OF THE MINIMUM RETURN REQUIRED
UNDER THE ACT AND THE CONSTITUTION.  SEE PERMIAN BASIN, SUPRA, AT 769 -
771. 

IN ADDITION, AS THE COURT OF APPEALS SAID: 

     "(THERE ARE SEVERAL ALTERNATIVE METHODS BY WHICH A SINGLE

  AGGRIEVED PRODUCER MAY ESTABLISH HIGHER RATES AS HIS

  CIRCUMSTANCES WARRANT.  . . . THUS, THE SYSTEM IS SO STRUCTURED

  THAT FPC CAN RETAIN INDUSTRY AND AREA WIDE RATE STABILITY FOR A

  PERIOD OF AT LEAST FIVE YEARS WHILE SIMULTANEOUSLY PROTECTING THE

  FINANCIAL INTEGRITY OF THE INDIVIDUAL PRODUCER.  AND IF THE

  CHANGE IN CIRCUMSTANCES IS SO WIDESPREAD THAT THE AREA RATE IS NO

LONGER ECONOMICALLY FEASIBLE AS SET, FPC HAS THE POWER TO LIFT

  ITS MORATORIUM OR ESTABLISH NEW AREA RATES, OR BOTH."  483 F.2D,

  AT 909. 

MOBIL ALSO COMPLAINS THAT THE COMMISSION FAILED TO PROVIDE AUTOMATIC
ADJUSTMENTS IN AREA RATES TO COMPENSATE FOR ANTICIPATED HIGHER ROYALTY
COSTS.  IT RELIES ON MOBIL OIL CORP. V. FPC, 149 U.S. APP. D.C. 310,
463 F.2D 256 (1972), WHERE THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT REVERSED A COMMISSION HOLDING THAT SUBJECTED ROYALTIES
TO FPC ADMINISTRATIVE CEILINGS.  MOBIL ARGUES THAT UNDER THAT DECISION
THE 1971 RATE SCHEDULES MUST TAKE INTO ACCOUNT THE POSSIBILITY OF
HIGHER ROYALTY OBLIGATIONS.  WE AGREE WITH THE COURT OF APPEALS THAT
MOBIL'S ARGUMENT IS HYPOTHETICAL AT THIS STAGE AND THAT IN ANY EVENT AN
AFFECTED PRODUCER IS ENTITLED TO SEEK INDIVIDUALIZED RELIEF.  THE COURT
OF APPEALS SAID: 

"(WE ARE NOT WILLING TO ALTER OR STAY THE IMPLEMENTATION OF AREA
WIDE RATES FOR THE ENTIRE INDUSTRY MERELY ON THE BASIS OF WHAT MIGHT
HAPPEN TO SOME PRODUCERS' COSTS IF (THE D.C. CIRCUIT'S) STATEMENT OF
THE LAW PREVAILS. 

     "IF, AS SUBSEQUENT EVENTS DEVELOP, THE PRODUCERS ARE PUT IN A

  BIND BY THEIR ROYALTY OBLIGATIONS, THEY MAY CERTAINLY PETITION

  FPC FOR INDIVIDUALIZED RELIEF.  PERMIAN CONTEMPLATED IT."  483

  F.2D, AT 911. 

NEW YORK OBJECTS TO THE COMMISSION'S ELIMINATION OF THE DISTINCTION IN
MAXIMUM PERMISSIBLE RATES BETWEEN CASINGHEAD GAS AND GAS-WELL GAS SO
FAR AS NEW DEDICATIONS ARE CONCERNED. 

  CASINGHEAD GAS HAS TRADITIONALLY TREATED AS A BYPRODUCT OF OIL
AND THEREFORE COSTED AND PRICED

  LOWER THAN GAS-WELL GAS.  THE COURT OF APPEALS HELD THAT "FPC
ACTED WITHIN THE BOUNDS OF

  ADMINISTRATIVE PROPRIETY IN ABANDONING ANY SUCH DISTINCTION." 
ID., AT 910.  WE CANNOT SAY

  THAT THIS CONCLUSION, SUPPORTED BY THE FOLLOWING REASONING, WAS
ERROR: "WE BELIEVE THAT

  SEVERAL CONSIDERATIONS SUPPORT THIS COURSE OF ACTION:  (I) 'THE
EXIGENCIES OF ADMINISTRATION

  DEMAND THE SMALLEST POSSIBLE NUMBER OF SEPARATE AREA RATES,'
PERMIAN, SUPRA, 390 U.S. AT 761,

  . . . (II) THERE IS A SERIOUS PROBLEM OF ALLOCATING THE PROPER
AMOUNT OF EXPLORATION AND

  DEVELOPMENT EXPENSES BETWEEN OIL AND GAS, SEE SOLA I:  428 F.2D
422 N. 30, (III) IMPOSING A

  LOWER PRICE ON CASINGHEAD GAS MIGHT '"INVITE THE DIVERGENCE OF
SUCH GAS TO THE INTRASTATE

  MARKET,"' OP:  598, 167, AND (IV) MAKING THE PRODUCTION OF
CASINGHEAD GAS ECONOMICALLY

  UNFEASIBLE MIGHT ENCOURAGE PROFIT-MINDED PRODUCERS TO FLARE IT
RATHER THAN MARKET IT--THUS

  MAKING NATURAL GAS IN (THE SOUTHERN LOUISIANA AREA) NOT MERELY A
WASTING BUT A WASTED,

  ASSET.  . . ."  483 F.2D, AT 909.  /55/ SUCH PRAGMATIC
ADJUSTMENTS WERE USED IN PERMIAN BASIN AS A WAY OF EQUATING FIRST
VINTAGE GAS AND ALL CASINGHEAD GAS, NEW AND OLD.  ALL THAT THE
COMMISSION HAS DONE HERE IS TO EQUATE ALL NEW CASINGHEAD GAS WITH ALL
NEW GAS JUST AS OLD CASINGHEAD GAS HAS ALWAYS BEEN EQUATED WITH OLD GAS
WELL GAS. 

MOBIL COMPLAINS OF THE PROVISION OF THE ORDER THAT ESTABLISHED
MINIMUM RATES TO BE PAID BY PRODUCERS TO PIPELINES FOR TRANSPORTATION
OF LIQUIES AND LIQUEFIABLE HYDROCARBONS.  MOBIL ARGUES THAT THESE
MINIMUM RATES ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE COURT OF
APPEALS DISAGREED.  "WE HAVE EXAMINED THE TESTIMONY REGARDING THIS
MATTER AND CONCLUDE THAT FPC HAD A SUBSTANTIAL EVIDENTIARY BASIS FROM
WHICH IT COULD CONCLUDE THAT THE PARTICULAR RATES WHICH IT ESTABLISHED
SHOULD SUPPLY A REASONABLE FLOOR ON THESE CHARGES.  THIS ANSWERS
MOBIL'S OBJECTION."  483 F.2D, AT 911.  MOBIL HAS NOT MET ITS BURDEN OF
DEMONSTRATING THAT THE COURT OF APPEALS MISAPPREHENDED OR GROSSLY
MISAPPLIED THE SUBSTANTIAL-EVIDENCE STANDARD.              V 

THE OVERRIDING OBJECTIVE OF THE COMMISSION WAS, AS THE COURT OF
APPEALS OBSERVED, TO ADOPT "A TOTAL RATE STRUCTURE TO MOTIVATE PRIVATE
PRODUCERS TO FULLY DEVELOP (THE SOUTHERN LOUISIANA AREA'S) RESOURCES." 
483 F.2D, AT 891.  THE COMMISSION'S FINDINGS, 46 F.P.C., AT 102,
EMPHASIZE THAT GOAL: 

      "OUR DUTY IS TO TAKE ALL THE ACTION WE BELIEVE NECESSARY TO

  REVERSE A DOWNTREND OF THE EXPLORATION AND DEVELOPMENT EFFORT,

  THEREBY TO INCREASE THE LIKELIHOOD OF AUGMENTING THE NATIONAL

  INVENTORY OF PROVED RESERVES OF NATURAL GAS.  WE WOULD BE

  DERELICT--WE CAN THINK OF NO SOFTER WORD--IF WE WERE TO BE GUIDED

  BY THE LEGALISMS OF THE PAST IN SEEKING SOLUTIONS TO THE PROBLEMS

  WHICH HAVE GROWN LIKE BARNACLES AS THIS CASE HAS AGED AND ITS

  SIZE HAS MOUNTED." 

FEATURES OF THE 1971 ORDER DESIGNED TO INCREASE SUPPLIES OF NATURAL
GAS MAY STRIKE SOME AS NOVEL BUT WE HAVE EMPHASIZED THAT THE COMMISSION
"MUST BE FREE . . . TO DEVISE METHODS OF REGULATION CAPABLE OF
EQUITABLY RECONCILING DIVERSE AND CONFLICTING INTERESTS."  PERMIAN, 390
U.S., AT 767.  THAT PRINCIPLE HAS OBVIOUS APPLICABILITY IN THIS TIME OF
ACUTE ENERGY SHORTAGE.  THIS ACCENTS THE OBSERVATION, APPARENTLY STILL
THE CASE, THAT "AREA REGULATION OF PRODUCER PRICES IS AVOWEDLY STILL
EXPERIMENTAL IN ITS TERMS AND UNCERTAIN IN ITS ULTIMATE CONSEQUENCES." 
ID., AT 772.  FOR, AS THE COURT OF APPEALS SAID: 

"CAST IN THE PERSPECTIVE OF THE HUMAN TRAVAIL, SOME MIGHT SAY THAT
THE DOZEN YEAR EXPERIENCE WITH AREA RATE REGULATION SHOULD AUGUABLY
JUSTIFY A HOLDING THAT THE EXPERIMENTAL PHASE HAS PASSED.  IN 1971, . .
. HOWEVER, FPC HAD ONLY TWICE BEEN THE BENEFICIARY OF THE JUDICIAL
FUNCTION TO DECLARE 'WHAT THE LAW IS'.  NO ONE CAN HONESTLY SAY THAT
JUDGES HAVE BEEN ANY MORE SURE THAN COMMISSIONERS, AS ALL STRUGGLE WITH
A PROBLEM THAT GROWS OUT OF THE PECULIAR MIXTURE OF A SIMULTANEOUS
SERVICE AND EXHAUSTION OF A DEPLETABLE ASSET.  ALL HAVE BEEN GROPING. 
THE DAY FOR GROPING IS NOT YET OVER.  AND IT DOES NOT DENIGRATE WHAT
FPC HAS DONE TO SAY THAT MUCH MAY YET BE IMPERFECT AND MUCH REMAINS TO
BE DONE OR REDONE.  SO WE CAN FIND THAT FPC HAS CONSCIENTIOUSLY
ATTEMPTED TO ESTABLISH 'JUST AND REASONABLE'  RATES WITHIN THE
FRAMEWORK ALLOWED BY JUDICIAL PRECEDENT, YET, IT IS STILL
EXPERIMENTING."  483 F.2D, AT 889. 

WE CANNOT NOW HOLD THAT, IN THESE CIRCUMSTANCES, THE COURT OF
APPEALS ERRED IN DECIDING THAT THE COMMISSION'S 1971 ORDER WAS AN
APPROPRIATE EXERCISE OF ADMINISTRATIVE DISCRETION SUPPORTED BY
SUBSTANTIAL EVIDENCE. 

            AFFIRMED. 

/56/  TOGETHER WITH NO. 73 - 457, PUBLIC SERVICE COMMISSION OF NEW
YORK V. FEDERAL POWER COMMISSION ET AL., AND NO 73 - 464, MUNICIPAL
DISTRIBUTORS GROUP V. FEDERAL POWER COMMISSION ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 

/1/  OPINION NO. 598, 46 F.P.C. 86 (1971), TOGETHER WITH THE
COMMISSION'S ORDER CORRECTING CERTAIN ERRORS AND DENYING REHEARING AS
TO ALL OTHER ISSUES, OPINION NO. 598 - A, 46 F.P.C. 633 (1971). 

/2/  AS IN PERMIAN BASIN AREA RATE CASES, 390 U.S. 747, 754 N. 2
(1968), SALES WITHIN THE COMMISSION'S JURISDICTION WILL, FOR
CONVENIENCE, BE TERMED "JURISDICTIONAL" OR "INTERSTATE" SALES.  SEE N.
17, INFRA. 

/3/  THE COURT OF APPEALS REPORTED THE STATUS OF AREA RATE
PROCEEDINGS IN 483 F.2D 880, 886 N. 3.  THE COMMISSION HAS UPDATED THAT
INFORMATION AS FOLLOWS:  "1.  PERMIAN BASIN AREA 

"OPINION NOS. 468 AND 468 - A, 34 FPC 159, AND 1068, RESPECTIVELY
(1965), AFFIRMED PERMIAN BASIN AREA RATE CASES, 390 U.S. 747 (1968) 

"NEW RATES FOR THIS AREA WERE ESTABLISHED IN: 

"OPINION NOS. 662 AND 662 - A (AREA RATE PROCEEDING, PERMIAN BASIN
AREA), -- FPC --, --, (DOCKET NO. AR70 - 1 (PHASE I), ISSUED AUGUST 7,
1973, AND SEPTEMBER 28, 1973, RESPECTIVELY); PENDING REVIEW SUB NOM.
CHEVRON OIL CO., WESTERN DIVISION, ET AL. V. F.P.C. (9TH CIR. NOS. 73 -
2861, ET AL., FILED SEPTEMBER 28, 1973) "2.  SOUTHERN LOUISIANA AREA 

"OPINION NOS. 546 AND 546 - A, 40 FPC 530, 41 FPC 301, RESPECTIVELY
(1968), AFFIRMED SUB NOM. AUSTRAL OIL CO., ET AL. V. F.P.C., 428 F.2D
407 (5TH CIR. 1970), ON REHEARING, 444 F.2D 125 (1970); CERTIORARI
DENIED SUB NOM. MUNICIPAL DISTRIBUTORS GROUP V. F.P.C., 400 U.S. 950
(1970) 

"NEW RATES FOR THIS AREA WERE ESTABLISHED IN: 

"OPINION NOS. 598 AND 598 - A, 46 FPC 86 AND 633, RESPECTIVELY
(1971), AFFIRMED SUB NOM. PLACID OIL CO., ET AL. V. F.P.C., 483 F.2D
880 (1973) (THE INSTANT CASE).  "3.  TEXAS GULF COAST AREA 

"OPINION NOS. 595 AND 595 - A, 45 FPC 674 AND 46 FPC 827,
RESPECTIVELY (1971), REVERSED AND REMANDED SUB NOM. PUBLIC SERVICE
COMMISSION OF THE STATE OF NEW YORK, ET AL. V. F.P.C., 487 F.2D 1043
(D.C. CIR. 1973), CERTIORARI PENDING SUB NOM. SHELL OIL CO., ET AL. V.
PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK, ET AL. (SUP. CT.
NOS. 73 - 966, ET AL., FILED DECEMBER 22, 1973).  "4.  HUGOTON-ANADARKO
AREA 

"OPINION NO. 586, 44 FPC 761 (1970), AFFIRMED SUB NOM. PEOPLE OF THE
STATE OF CALIFORNIA, ET AL. V. F.P.C., 466 F.2D 974 (9TH CIR. 1972). 
"5.  OTHER SOUTHWEST AREA 

"OPINION NOS. 607 AND 607 - A, 46 FPC 900 AND 47 FPC 99,
RESPECTIVELY (1971), AFFIRMED SUB NOM. SHELL OIL CO., ET AL. F.P.C.,
484 F.2D 469 (5TH CIR. 1973), CERTIORARI PENDING SUB NOM.  MOBIL OIL
CORP. V. F.P.C. (SUP. CT. NO. 73 - 438, FILED SEPTEMBER 6, 1973).  "6. 
APPALACHIAN AND ILLINOIS BASIN 

"ORDER NOS. 411, 411 - A AND 411 - B, 44 FPC 1112, 1334 AND 1487,
RESPECTIVELY (1970) (THESE ORDERS WERE NEVER APPEALED). 

"THE COMMISSION DECLINED TO ESTABLISH NEW AREA RATES FOR THIS AREA
IN OPINION NO. 639, 48 FPC 1299 (1972), AFFIRMED SUB NOM. SHELL OIL
CO., ET AL. V. F.P.C., -- F.2D -- (5TH CIR. NOS. 73 - 1369, ET AL.,
DECIDED MARCH 14, 1974).  "7.  ROCKY MOUNTAIN AREA 

"OPINION NOS. 658 AND 658 - A, 49 FPC 924 AND -- FPC--, RESPECTIVELY
(1973), PETITION FOR REVIEW FILED AND DISMISSED ON MOTION OF PETITIONER
SUB NOM. EXXON CORPORATION V. F.P.C. (D.C. CIR. NO. 73 - 1854,
DISMISSED FEBRUARY 22, 1974). 

"OPINION NOS. 658 AND 658 - A PRESCRIBED JUST AND REASONABLE RATES
FOR GAS PRODUCED IN THIS AREA FROM WELLS COMMENCED PRIOR TO JANUARY 1,
1973 AND SOLD UNDER CONTRACTS DATED PRIOR TO OCTOBER 1, 1968.  SALES
FROM THIS AREA WHICH ARE NOT COVERED BY THE RATES ESTABLISHED IN
OPINION NOS. 658 AND 658 - A WILL BE GOVERNED BY THE RATES PRESCRIBED
IN THE COMMISSION'S PENDING NATIONWIDE RATE PROCEEDINGS (SEE BELOW). 
PENDING COMPLETION OF THE NATIONWIDE PROCEEDINGS SUCH SALES ARE BEING
PERMANENTLY CERTIFIED UNDER SECTION 7 OF THE NATURAL GAS ACT, 15 U.S.C.
717F, AT THE INITIAL RATES PRESCRIBED IN ORDER NO. 435, 46 FPC 68
(1971) SUB NOM. AMERICAN PUBLIC GAS ASSOCIATION, ET AL. V. F.P.C. (D.C.
CIR. NOS. 72 - 1812, ET AL., MAY 23, 1974)." 

THE COMMISSION FURTHER ADVISES THAT "(PROCEEDINGS TO ESTABLISH
UNIFORM NATIONWIDE RATES FOR ALL JURISDICTIONAL PRODUCER SALES HAVE
BEEN INSTITUTED AT THE COMMISSION.  WHEN THESE PROCEEDINGS ARE
COMPLETED, THE RATES PRESCRIBED THEREIN WILL SUPERSEDE ALL AREA RATES. 
AS TO GAS FROM WELLS COMMENCED ON OR AFTER JANUARY 1, 1973, SEE; 

"NOTICE OF PROPOSED RULEMAKING AND ORDER PRESCRIBING PROCEDURES, 38
FED. REG. 10014 (DOCKET NO. R - 389 - B, ISSUED APRIL 11, 1973). 

"AS TO GAS FROM WELLS COMMENCED PRIOR TO JANUARY 1, 1973, SEE;
"NOTICE OF PROPOSED RULEMAKING AND ORDER PRESCRIBING PROCEDURES, 38
FED. REG. 14295 (DOCKET NO. R - 478, ISSUED MAY 23, 1973)."  MEMORANDUM
FROM GENERAL COUNSEL, FPC (MAY 17, 1974). 

AS TO THE COMMISSION'S SHIFT FROM INDIVIDUAL RATEMAKING THROUGH AN
ADJUDICATIVE PROCEDURE TO AREA RATEMAKING THROUGH A RULEMAKING
PROCEDURE, SEE DAKIN, RATEMAKING AS RULEMAKING--THE NEW APPROACH AT THE
FPC:  AD HOC RULEMAKING IN THE RATEMAKING PROCESS, 1973 DUKE L. J. 41. 

  /4/  SECTIONS 4(A) AND 5(A), 15 U.S.C. 717C (A) AND 717D (A),
RESPECTIVELY PROVIDE: 

4(A) "ALL RATES AND CHARGES MADE, DEMANDED, OR RECEIVED BY ANY
NATURAL-GAS COMPANY FOR OR IN CONNECTION WITH THE TRANSPORTATION OR
SALE OF NATURAL GAS SUBJECT TO THE JURISDICTION OF THE COMMISSION, AND
ALL RULES AND REGULATIONS AFFECTING OR PERTAINING TO SUCH RATES OR
CHARGES, SHALL BE JUST AND REASONABLE, AND ANY SUCH RATE OR CHARGE THAT
IS NOT JUST AND REASONABLE IS DECLARED TO BE UNLAWFUL." 

5(A) "WHENEVER THE COMMISSION, AFTER A HEARING HAD UPON ITS OWN
MOTION OR UPON COMPLAINT OF ANY STATE, MUNICIPALITY, STATE COMMISSION,
OR GAS DISTRIBUTING COMPANY, SHALL FIND THAT ANY RATE, CHARGE, OR
CLASSIFICATION DEMANDED, OBSERVED, CHARGED, OR COLLECTED BY ANY NATURAL
GAS COMPANY IN CONNECTION WITH ANY TRANSPORTATION OR SALE OF NATURAL
GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR THAT ANY RULE,
REGULATION, PRACTICE, OR CONTRACT AFFECTING SUCH RATE, CHARGE, OR
CLASSIFICATION IS UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR
PREFERENTIAL, THE COMMISSION SHALL DETERMINE THE JUST AND REASONABLE
RATE, CHARGE, CLASSIFICATION, RULE, REGULATION, PRACTICE, OR CONTRACT
TO BE THEREAFTER OBSERVED AND IN FORCE, AND SHALL FIX THE SAME BY
ORDER:  PROVIDED, HOWEVER, THAT THE COMMISSION SHALL HAVE NO POWER TO
ORDER ANY INCREASE IN ANY RATE CONTAINED IN THE CURRENTLY EFFECTIVE
SCHEDULE OF SUCH NATURAL GAS COMPANY ON FILE WITH THE COMMISSION,
UNLESS SUCH INCREASE IS IN ACCORDANCE WITH A NEW SCHEDULE FILED BY SUCH
NATURAL GAS COMPANY; BUT THE COMMISSION MAY ORDER A DECREASE WHERE
EXISTING RATES ARE UNJUST, UNDULY DISCRIMINATORY, PREFERENTIAL,
OTHERWISE UNLAWFUL, OR ARE NOT THE LOWEST REASONABLE RATES." 

/5/  PETITIONER IN NO. 73 - 437, MOBIL OIL CORP., IS A MAJOR
PRODUCER OF NATURAL GAS IN THE SOUTHERN LOUISIANA AREA.  PETITIONER IN
NO. 73 - 457, PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK AND
PETITIONER IN NO. 73 - 464, MUNICIPAL DISTRIBUTORS GROUP--A GROUP OF
APPROXIMATELY 200 MUNICIPALLY OWNED GAS DISTRIBUTORS--REPRESENT MAJOR
CONSUMER INTERESTS.  HEREAFTER IN THIS OPINION THEY WILL BE REFERRED TO
RESPECTIVELY AS "MOBIL," "NEW YORK," AND MDG."  ALTHOUGH ALL THREE
ATTACK AT TIMES THE SAME PROVISIONS OF THE 1971 ORDER, THE ATTACKS MAKE
DIFFERENT ARGUMENTS AS BEST SERVE THE SELF-INTEREST OF THE PARTICULAR
PETITIONER.  THUS, THE CEILING RATE FOR FLOWING GAS ESTABLISHED BY THE
COMMISSION INCLUDES A NONCOST FACTOR DESIGNED TO FACILITATE INVESTMENT
BY PRODUCERS IN EXPLORATION AND DEVELOPMENT OF NEW GAS RESERVES. 
MOBIL, UNDERSTANDABLY CONCERNED WITH HIGHER PRICES, ARGUES THAT THE
NONCOST ADDITION IS NOT ENOUGH; INDEED, THAT THE RATES FIXED BOTH FOR
FLOWING GAS AND FOR NEW GAS ARE TOO LOW.  NEW YORK AND MDG, ON THE
OTHER HAND, CONCERNED WITH LOWER PRICES, OBJECT THAT THE RATES FOR
FLOWING GAS ARE TOO HIGH AND REDUCE THE LEVEL OF REFUND OBLIGATIONS. 

/6/  APPROXIMATELY FIVE YEARS WERE CONSUMED BY HEARINGS, AND THE
TRIAL EXAMINER'S OPINION ISSUED ON DECEMBER 30, 1966, 40 F.P.C. 703. 

/7/  PURSUANT TO ITS AUTHORITY, UPHELD IN PERMIAN, TO USE PRICE
FLEXIBLY, THE COMMISSION ESTABLISHED THREE "VINTAGES" FOR ONSHORE GAS
DELIVERED UNDER CONTRACTS MADE, RESPECTIVELY, (1) BEFORE 1961, (2)
BETWEEN JANUARY 1, 1961, AND OCTOBER 1, 1968, AND (3) AFTER OCTOBER 1,
1968.  IT SET PRICE CEILINGS FOR THE THREE VINTAGES, RESPECTIVELY, AT
18.5[ PER THOUSAND CUBIC FEET (MCF), 19.5[ PER MCF, AND 20[ PER MCF. 
FOR OFFSHORE GAS IN THE FEDERAL DOMAIN, WHICH IS NOT SUBJECT TO THE
LOUISIANA SEVERANCE TAX, THE CEILINGS WERE 1.5[ PER MCF BELOW ONSHORE
LEVELS.  THE COMMISSION ALSO ORDERED REFUNDS AGGREGATING APPROXIMATELY
375 MILLION DOLLARS FOR GAS SOLD AND DELIVERED BETWEEN THE INITIATION
OF THE PROCEEDINGS AND THE EFFECTIVE DATE OF ITS OPINION, OCTOBER 1,
1968, AT PRICES ABOVE THE ESTABLISHED PRE-OCTOBER 1 CEILINGS.  FINALLY,
IT ESTABLISHED, SUBJECT TO THE RIGHT OF INDIVIDUAL PRODUCERS TO
PETITION FOR EXCEPTIONS, AN INDEFINITE MORATORIUM ON RATE INCREASES
ABOVE THE PRE-OCTOBER 1 CEILINGS, AND A MORATORIUM UNTIL JANUARY 1,
1974 (OVER FIVE YEARS) ON RATE INCREASES ABOVE THE POST-OCTOBER 1
MAXIMUM.  SUCH MORATORIA PROVIDE FOR AUTOMATIC SUSPENSION OF ANY RATE
FILING, WITHOUT DETERMINATION OF JUSTNESS AND REASONABLENESS.  SEE,
E.G., UNITED GAS V. CALLERY PROPERTIES, 382 U.S. 223 (1965). 

/8/  AS OF THE END OF 1970, THE PRECISE AMOUNT OF THESE REFUNDS WAS
$376,428,000, SEE 5 APP. 237C, BUT THEY WERE ACCRUING INTEREST UNDER
TERMS OF THE COMMISSION'S ORDER.  OPINION NO. 546, 40 F.P.C. 530
(1968). 

/9/  SEE SOLA I, 428 F.2D 407, 435 N. 87 (CA5 1970).  THIS REPORT
WAS UPDATED BY FPC STAFF REPORT NO. 2, NATIONAL GAS SUPPLY AND DEMAND
1971 - 1990 (1972), WHICH STATES IN PART:  "'THE EMERGENCE OF A NATURAL
GAS SHORTAGE DURING THE PAST TWO YEARS MARKS A HISTORIC TURNING POINT-
THE END OF NATURAL GAS INDUSTRY GROWTH UNINHIBITED BY SUPPLY
CONSIDERATIONS.  . . . FOR PRACTICAL SHORT-TERM PURPOSES WE ARE
CONFRONTED WITH THE FACT THAT CURRENT PROVEN RESERVES IN THE LOWER 48
STATES . . . HAVE DROPPED FROM 289.3 TRILLION CUBIC FEET (TCF) IN 1967
TO 259.6 IN 1970, A 10.3 PERCENT DROP WITHIN A THREE-YEAR PERIOD.  . .
.'"  FPC V. LOUISIANA POWER & LIGHT CO., 406 U.S. 621, 626 N. 2
(1972). 

/10/  ON JANUARY 26, 1971, THE CONSOLIDATED PROCEEDING WAS EXPANDED
TO INCLUDE ALL RATE CERTIFICATION PROCEEDINGS THAT HAD BEEN, OR WOULD
HAVE BEEN, INITIATED IN THE SOUTHERN LOUISIANA AREA DURING THE PENDENCY
OF THE CASE.  PET. FOR CERT. OF NEW YORK 9. 

/11/  46 F.P.C., AT 101. 

/12/  UNITED DISTRIBUTION COMPANIES, A GROUP OF 32 MAJOR
DISTRIBUTION COMPANIES.  ID., AT 103 N. 25.     /13/  THE COMMISSION'S
TABULATION STATED: 

"IN SUPPORT OF THE SETTLEMENT PROPOSAL ARE 32 MAJOR DISTRIBUTION
COMPANIES REPRESENTING 25 PERCENT OF THE GAS DISTRIBUTION OPERATIONS IN
THE UNITED STATES, SERVING ABOUT 10.3 MILLION CUSTOMERS AT RETAIL; 55
GAS DISTRIBUTION COMPANIES WHICH SUPPLY GAS SERVICE TO MORE THAN 10
MILLION CUSTOMERS; ALL INTERSTATE PIPELINES PURCHASING GAS FROM THE
SOUTHERN LOUISIANA AREA; AND 46 NATURAL GAS PRODUCERS, COMPRISING 80
PERCENT OF THE TOTAL GAS PRODUCTION FLOWING FROM THE AREA.  . . . THE
COMMISSION STAFF LIKEWISE SUPPORTED THE SETTLEMENT PROPOSAL."  ID., AT
103. 

/14/  THE COMMISSION OPINION STATES:     "WE HAVE MORE THAN A
SETTLEMENT PROPOSAL BEFORE US.  WE HAVE THE ENTIRE RECORD MADE IN THE
ORIGINAL SOUTHERN LOUISIANA PROCEEDINGS, PLUS THE RECORD OPENED WITH
THE INSTITUTION OF DOCKET N. AR 69 - 1 AND CONCLUDED AFTER DOCKET NO.
AR 61 - 2 WAS CONSOLIDATED WITH IT.  THE SETTLEMENT PROPOSAL WAS
OBVIOUSLY HEAVILY INFLUENCED BY THE TEACHINGS OF (SOLA I), AS THE
PARTIES PERCEIVED THOSE TEACHINGS, AND SO WAS THE RECORD MADE IN
CONJUNCTION WITH IT.  IT IS OUR DUTY TO REVIEW THAT RECORD AND TO MAKE
FINDINGS THEREON, AND TO COME TO CONCLUSIONS THEREFROM.  ONLY IF
SUBSTANTIAL EVIDENCE SUPPORTS IT CAN WE APPROVE THE SETTLEMENT
PROPOSAL, AND THIS MEANS THAT WE MUST ANALYZE SUPPLY AND DEMAND, SUPPLY
COST RELATIONSHIPS, AND COSTING METHODOLOGY.  RATE DESIGN, INCENTIVES,
REFUNDS, AND ECONOMIC CONSIDERATIONS, AS THE RECORD PERMITS INSIGHT
INTO THESE MATTERS, MUST ALSO BE DISCUSSED."  ID., AT 106. 

/15/  THE COMMISSION'S CONCLUSION THAT THE RATES WERE JUST AND
REASONABLE IS TO BE FOUND AT 46 F.P.C., AT 110.  CONCLUSIONS THAT THEY
WERE SUPPORTED BY SUBSTANTIAL EVIDENCE APPEAR THROUGHOUT THE OPINION
FOLLOWING APPROPRIATE EXAMINATION OF THE RECORD EVIDENCE.  SEE, E.G.,
ID., AT 131, 137 - 138, 142. 

/16/  UNDER THE FORMULA IF, BEFORE OCTOBER 1, 1977, THE INDUSTRY AS
A WHOLE FINDS AND DEDICATES TO THE INTERSTATE MARKET NEW GAS RESERVES
IN THE SOUTHERN LOUISIANA AREA OF SEVEN AND ONE HALF TCF, THE RATE FOR
FLOWING GAS WILL ESCALATE BY 0.5 CENTS; IF, PRIOR TO THAT DATE, SUCH
RESERVES EQUAL ELEVEN AND ONE QUARTER TCF, THE RATE WILL INCREASE BY AN
ADDITIONAL 0.5 CENTS; IF, PRIOR TO THE SAME DATE, SUCH RESERVES EQUAL
15 TCF, A FINAL 0.5 CENTS ESCALATION WILL BECOME EFFECTIVE.  ID., AT
143. 

/17/  THE RATES THAT WOULD HAVE BEEN ESTABLISHED HAD THE 1968 ORDERS
BECOME EFFECTIVE RANGED FROM 17[ PER MCF TO 20[ PER MCF. 

/18/  THE COMMISSION'S FORMULA WORKS THUS:  ANY COMPANY WITH A
"REFUND OBLIGATION" TO ANY NATURAL GAS PIPELINE COMPANY IS ALLOWED TO
REDUCE THE REFUND OBLIGATION BY ONE CENT FOR EACH MCF OF NEW GAS
RESERVES COMMITTED TO THE INTERSTATE MARKET IN THE SOUTHERN LOUISIANA
AREA DURING THE PERIOD ENDING OCTOBER 1, 1977.  ANY PORTION OF THE
"REFUND OBLIGATION" NOT SO DISCHARGED IS PAYABLE IN CASH WITH INTEREST,
SUBJECT TO CERTAIN SPECIAL RELIEF PROVISIONS FOR PRODUCERS WHO EITHER
ACHIEVE 65% OF THEIR OBLIGATIONS BY AUGUST 1, 1976, OR WHO HAVE
NONETHELESS MADE A "SINCERE AND DILIGENT EFFORT" TO DISCHARGE THEM. 
OPINION NO. 598 - A, 46 F.P.C. 633, 641 (1971).  THE PRODUCER IS
REQUIRED TO COMMIT, OR GIVE RIGHT OF FIRST REFUSAL TO, AT LEAST 50% OF
THE NEW RESERVES TO THE PURCHASER TO WHOM THE REFUND WOULD OTHERWISE BE
PAYABLE.  THE RESERVES COMMITTED TO REDUCE THE REFUND OBLIGATION MAY
NOT BE COUNTED BY THE PRODUCER COMMITTING THOSE RESERVES AS A PART OF
THE INDUSTRY RESERVES REQUIRED TO TRIGGER THE ESCALATED PRICES FOR
FLOWING GAS REFERRED TO IN N. 16 ABOVE. 

/19/  THE RATE LEVELS FOR REFUND PURPOSES ARE AS FOLLOWS: 

(A) FOR DELIVERIES PRIOR TO JANUARY 1, 1965, 20.625[ PER MCF FOR
ONSHORE GAS AND 19.625[ PER MCF FOR OFFSHORE GAS. 

(B) FOR DELIVERIES FROM JANUARY 1, 1965, TO SEPTEMBER 30, 1968,
21.25[ PER MCF FOR ONSHORE GAS AND 20.25[ PER MCF FOR OFFSHORE GAS. 

(C) FOR DELIVERIES FROM OCTOBER 1, 1968 TO JANUARY 1, 1971, 30.5
PERCENT OF THE DIFFERENCE BETWEEN REVENUES DURING THIS PERIOD BASED ON
RATES PRIOR TO OCTOBER 1, 1970, AND THE REVENUES THAT WOULD HAVE
RESULTED DURING THIS PERIOD THROUGH THE APPLICATION OF RATES
ESTABLISHED IN SOLA I, AS MODIFIED.  THIS PERCENTAGE FACTOR OF 30.5 MAY
BE INCREASED TO AS HIGH AS 33 PERCENT TO PRODUCE THE 150 MILLION-DOLLAR
REFUND TOTAL. 

(D) FOR DELIVERIES AFTER JANUARY 1, 1971, BASE AREA RATES PRESCRIBED
IN THE 1971 ORDER, SEE 46 F.P.C., AT 140. 

/20/  SEE N. 4, SUPRA. 

/21/  SECTION 717 (B) PROVIDES: 

"THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

/22/  SEE, E.G., INTERSTATE COMMERCE ACT, 49 U.S.C. 1 ET SEQ. SEE
KITCH, REGULATION OF THE FIELD MARKET FOR NATURAL GAS BY THE FEDERAL
POWER COMMISSION, 11 J. LAW AND ECON.  243 (1968); NOTE, LEGISLATIVE
HISTORY OF THE NATURAL GAS ACT, 44 GEO. L.J. 695, 702, 704 (1956). 

THE CONTENTION WAS EARLY MADE THAT IN REGULATING THE ULTIMATE SOURCE
OF A PRODUCTION, HERE THE NATURAL-GAS PRODUCER, THE PROBLEM IS NOT TO
ENSURE A REASONABLE RATE OF RETURN, BUT TO USE PRICES FUNCTIONALLY TO
PRODUCE A SUPPLY THAT WILL SATISFY A SOCIALLY SELECTED LEVEL OF DEMAND,
AND EFFICIENTLY TO ALLOCATE THAT SUPPLY.  SEE FRC V. HOPE NATURAL GAS
CO., 320 U.S. 591, 629 (1944) (SEPARATE OPINION OF JACKSON, J.): 

"THE HEART OF THIS PROBLEM IS THE ELUSIVE, EXHAUSTIBLE, AND
IRREPLACEABLE NATURE OF NATURAL GAS ITSELF.  GIVEN SUFFICIENT MONEY, WE
CAN PRODUCE ANY DESIRED AMOUNT OF RAILROAD, BUS, OR STEAMSHIP
TRANSPORTATION, OR COMMUNICATIONS FACILITIES, OR CAPACITY FOR
GENERATION OF ELECTRIC ENERGY, OR FOR THE MANUFACTURE OF GAS OF A
KIND.  IN THE SERVICE OF SUCH UTILITIES ONE CUSTOMER HAS LITTLE CONCERN
WITH THE AMOUNT TAKEN BY ANOTHER, ONE'S WASTE WILL NOT DEPRIVE ANOTHER,
A VOLUME OF SERVICE CAN BE CREATED EQUAL TO DEMAND, AND TODAY'S DEMANDS
WILL NOT EXHAUST OR LESSEN CAPACITY TO SERVE TOMORROW.  BUT THE WEALTH
OF MIDAS AND THE WIT OF MAN CANNOT PRODUCE OR REPRODUCE A NATURAL GAS
FIELD."  COMPARE, FOR A REVIEW OF THE POSSIBLE PURPOSES OF NATURAL GAS
REGULATION AND THE AUGUMENTS FOR AND AGAINST THE SCHEME OF THE NATURAL
GAS ACT, BREYER & MACAVOY, THE NATURAL GAS SHORTAGE AND THE REGULATION
OF NATURAL GAS PRODUCERS, 86 HARV. L. REV. 941, ESPECIALLY 944 - 952
(1973). 

/23/  SEE COLUMBIAN FUEL CORP., 2 F.P.C. 200 (1940); CASES CITED IN
PERMIAN BASIN, 390 U.S., AT 756 N. 7.  SECTION 1(B), 15 U.S.C. 717 (B),
EXEMPTS "THE PRODUCTION OR GATHERING OF NATURAL GAS"  FROM THE ACT. 

BOTH THE REASON FOR THE COMMISSION'S VIEW AND THE LOGICAL INFIRMITY
IN IT APPEAR IN THE LEGISLATIVE HISTORY OF THE ACT.  THE GROWING
CONCENTRATION OF NATURAL GAS PIPELINES HAD LED TO TRADITIONAL ABUSES
ASSOCIATED WITH MONOPOLY POWER--LIMITATION OF SUPPLY, DISCRIMINATORY
PRICING, AND BARRIERS TO ENTRY.  HEARINGS ON H.R. 4008 BEFORE THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 75TH CONG., 1ST SESS.,
47, 70 - 73, 89 - 91, 101 - 103 (1937).  THE STATES FIRST PROVED
INCAPABLE OF COMBATING THESE FOREIGN CORPORATIONS, ID., AT 50, 93, AND
THEN WERE BARRED BY DECISIONS OF THIS COURT HOLDING THAT SUCH
REGULATION VIOLATED THE INTERSTATE COMMERCE CLAUSE.  SEE, E.G., PEOPLES
NATURAL GAS CO. V. PUBLIC SERVICE COMM'N, 270 U.S. 550 (1926). 

CONGRESS' RESPONSE WAS TO TAKE OVER WHERE THE STATES' POWER CEASED,
FOLLOWING THE CHAIN OF DISTRIBUTION BACK INTO THE INTERSTATE MARKET,
AND IT QUITE NATURALLY USED A PUBLIC UTILITY MODEL.  BUT, ONCE BEGUN,
PREVENTION OF THE CIRCUMVENTION OF SUCH REGULATION VIRTUALLY COMPELLED
EXTENSION OF CONTROL TO THE SOURCE. 

ALTHOUGH THE DEBATE CONTINUES TODAY AS TO WHETHER THE PRODUCTION OF
NATURAL GAS IS, OR HAS THE POTENTIAL BE BE, COMPETITIVE, COMPARE
DIENER, AREA PRICE REGULATION IN THE NATURAL GAS INDUSTRY OF SOUTHERN
LOUISIANA, 46 TUL.  L. REV. 695 (1972) (NOT COMPETITIVE), WITH BREYER &
MACAVOY, THE NATURAL GAS SHORTAGE AND THE REGULATION OF NATURAL GAS
PRODUCERS, 86 HARV. L. REV. 941 (1973) (COMPETITIVE), REVISION OF THE
REGULATION REQUIRED BY THE ACT IS A MATTER FOR CONSIDERATION BY THE
CONGRESS, NOT BY THIS COURT.  SEE FPC V. TEXACO, POST, AT 400 - 401. 

/24/  PRIOR TO THE PHILLIPS CASE THERE WERE FEWER THAN 200 PIPELINE
COMPANIES SUBJECT TO COMMISSION REGULATION.  STATEMENT OF GENERAL
POLICY NO. 61 - 1, 24 F.P.C. 818 (1960).  IMMEDIATELY PRIOR TO PASSAGE
OF THE ACT, FOUR HOLDING COMPANY GROUPS CONTROLLED OVER 55% OF THE
NATION'S PIPELINE MILEAGE.  HEARINGS ON H.R. 11662 BEFORE A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
74TH CONG., 2D SESS., 12, 52 (1936). 

/25/  SEE PHILLIPS PETROLEUM CO., 24 F.P.C. 537, 542 (1960). 

/26/  SECTION 717A PROVIDES: 

"WHEN USED IN THIS CHAPTER, UNLESS THE CONTEXT OTHERWISE REQUIRES--,

        .         .         .         .       . 

"(6) 'NATURAL-GAS COMPANY' MEANS A PERSON ENGAGED IN THE
TRANSPORTAION OF NATURAL GAS IN INTERSTATE COMMERCE, OR THE SALE IN
INTERSTATE COMMERCE OF SUCH GAS FOR RESALE." 

/27/  SEE PHILLIPS PETROLEUM CO., 24 F.P.C., AT 542. 

/28/ VARIOUS STATISTICS PRESENTED BY THE COMMISSION IN ITS PHILLIPS
OPINION ON REMAND INDICATED A TOTAL OF 3,372 INDEPENDENT PRODUCERS WITH
RATES ON FILE AND AN ESTIMATED BACKLOG SO LARGE THAT, IF THE STAFF OF
THE COMMISSION WERE TRIPLED, IT WOULD TAKE OVER 82 YEARS TO REACH
CURRENT STATUS.  24 F.P.C., AT 545 - 546. 

/29/  STATEMENT OF GENERAL POLICY NO. 61 - 1, 24 F.P.C. 818 (1960). 

/30/  IBID. 

/31/  SEE OPINION NO. 598, 46 F.P.C., AT 112 - 114 (AMERICAN GAS
ASSOCIATION, COMMITTEE ON NATURAL GAS RESERVES, ANNUAL REPORTS). 

/32/  SEE, E.G., KITCH, SUPRA, N. 22, AT 276 - 280.  SEE ALSO
PERMIAN BASIN, 390 U.S., AT 816 - 817. 

/33/  SEE N. 3, SUPRA. 

/34/  STATEMENT OF GENERAL POLICY NO. 61 - 1, SUPRA. 

/35 PERMIAN BASIN, SUPRA, AT 759 - 760. 

/36/  ID., AT 761. 

/37/  IBID.; CF. INFRA, AT 329 - 330. 

/38/  THE COMMISSION HAS RAISED THE RATE OF RETURN TO 15% IN THE
INSTANT CASE.  46 F.P.C., AT 131. 

/39/  CF. IBID. 

/40/  CF. IBID. 

/41/  SEE 46 F.P.C., AT 143:  "THE MAXIMUM STANDARD WILL BE 1050
BTU'S PER CUBIC FOOT OF GAS, . . . AND THE MINIMUM STANDARD WILL BE
1000 BTU'S PER CUBIC FOOT OF GAS."  ADJUSTMENTS OUTSIDE THIS RANGE ARE
TO BE ON A PROPORTIONAL BASIS.  THIS WAS THE STANDARD USED IN PERMIAN
BASIN, SEE 390 U.S., AT 762 - 763. 

/42/  ID., AT 770 - 771. 

/43/  INDEED, IN ADDITION TO ITS GENERAL APPROVAL OF SUCH AN
APPROACH, SEE 390 U.S., AT 814 - 815, THE COURT IN PERMIAN BASIN LISTED
EACH OF THE NONCOST FACTORS USED BY THE COMMISSION AND APPROVED THEM. 
SEE ID., AT 815 N. 98. 

/44/ SECTION 19(B), 15 U.S.C. 717RB), STATES: 

"(B) ANY PARTY TO A PROCEEDING UNDER THIS CHAPTER AGGRIEVED BY AN
ORDER ISSUED BY THE COMMISSION IN SUCH PROCEEDING MAY OBTAIN A REVIEW
OF SUCH ORDER IN THE COURT OF APPEALS OF THE UNITED STATES FOR ANY
CIRCUIT WHEREIN THE NATURAL-GAS COMPANY TO WHICH THE ORDER RELATES IS
LOCATED OR HAS ITS PRINCIPAL PLACE OF BUSINESS, OR IN THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, BY FILING IN SUCH COURT,
WITHIN SIXTY DAYS AFTER THE ORDER OF THE COMMISSION UPON THE
APPLICATION FOR REHEARING, A WRITTEN PETITION PRAYING THAT THE ORDER OF
THE COMMISSION BE MODIFIED OR SET ASIDE IN WHOLE OR IN PART.  . . .
UPON THE FILING OF SUCH PETITION SUCH COURT SHALL HAVE JURISDICTION,
WHICH UPON THE FILING OF THE RECORD WITH IT SHALL BE EXCLUSIVE, TO
AFFIRM, MODIFY, OR SET ASIDE SUCH ORDER IN WHOLE OR IN PART.  . . . THE
FINDING OF THE COMMISSION AS TO THE FACTS IF SUPPORTED BY SUBSTANTIAL
EVIDENCE, SHALL BE CONCLUSIVE.  . . . THE JUDGMENT AND DECREE OF THE
COURT, AFFIRMING, MODIFYING, OR SETTING ASIDE, IN WHOLE OR IN PART, ANY
SUCH ORDER OF THE COMMISSION, SHALL BE FINAL, SUBJECT TO REVIEW BY THE
SUPREME COURT OF THE UNITED STATES UPON CERTIORARI . . . ." 

/45/  NEW YORK ASSERTS (BRIEF 17 - 18) THAT THE COURT OF APPEALS
"DOES NOT SIT AS A COURT OF EQUITY IN REVIEWING ACTIONS OF AN
ADMINISTRATIVE AGENCY . . . ."  WE AGREE WITH AND ADOPT THE
COMMISSION'S ANSWER TO THAT CONTENTION, BRIEF FOR FEDERAL POWER COMM'N
24 N. 20:  "BUT THE CASE IT CITES FOR THAT PROPOSITION, FEDERAL RADIO
COMMISSION V. GENERAL ELECTRIC CO., 281 U.S. 464, IS WHOLLY
INAPPOSITE.  THE ISSUE THERE WAS WHETHER (THE SUPREME) COURT HAD
JURISDICTION TO REVIEW A DECISION OF THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA SETTING ASIDE AN ORDER OF THE FEDERAL RADIO
COMMISSION.  (THE) COURT HELD THAT IT DID NOT HAVE JURISDICTION,
BECAUSE UNDER THE PERTINENT STATUTE THE COURT OF APPEALS, AS A
LEGISLATIVE COURT, WAS IN EFFECT 'A SUPERIOR AND REVISING AGENCY' (281
U.S., AT 467).  THE PROCEEDING IN THE COURT OF APPEALS THUS 'WAS NOT A
CASE OR CONTROVERSY IN THE SENSE OF THE JUDICIARY ARTICLE, BUT WAS AN
ADMINISTRATIVE PROCEEDING, AND THEREFORE . . . THE DECISION THEREIN IS
NOT REVIEWABLE BY (THE SUPREME) COURT' (ID., AT 470). 

"(THE SUPREME) COURT'S STATEMENT THAT THE COURT OF APPEALS IN SUCH
CASES DOES NOT EXERCISE 'ORDINARY JURISDICTION AT LAW OR IN EQUITY'
(ID., AT 468) REFERS ONLY TO THAT COURT'S FORMER SPECIAL ROLE AS A
LEGISLATIVE COURT.  IT DOES NOT MEAN, AS NEW YORK MISTAKENLY INFERS,
THAT REVIEWING COURTS EXERCISING JUDICIAL RATHER THAN ADMINISTRATIVE
JURISDICTION DO NOT SIT AS COURTS OF EQUITY.  AS (THAT) COURT STATED,
THE JURISDICTION OF REVIEWING COURTS UNDER STATUTES SIMILAR TO THE
NATURAL GAS ACT IS 'QUITE UNLIKE THE JURISDICTION EXERCISED ON APPEALS
FROM THE RADIO COMMISSION' (ID., AT 470)."     /46/  TITLE 18 CFR
1.18(A) PROVIDES: 

"(A) TO ADJUST OR SETTLE PROCEEDINGS.  IN ORDER TO PROVIDE
OPPORTUNITY FOR THE SUBMISSION AND CONSIDERATION OF FACTS, ARGUMENTS,
OFFERS OF SETTLEMENT, OR PROPOSALS OF ADJUSTMENT, FOR SETTLEMENT OF A
PROCEEDING, OR ANY OF THE ISSUES THEREIN, OR CONSIDERATION OF MEANS BY
WHICH THE CONDUCT OF THE HEARING MAY BE FACILITATED AND THE DISPOSITION
OF THE PROCEEDING EXPEDITED, CONFERENCES BETWEEN THE PARTIES TO THE
PROCEEDING AND STAFF FOR SUCH PURPOSES MY BE HELD AT ANY TIME PRIOR TO
OR DURING SUCH HEARINGS BEFORE THE COMMISSION OR THE OFFICER DESIGNATED
TO PRESIDE THEREAT AS TIME, THE NATURE OF THE PROCEEDING, AND THE
PUBLIC INTEREST MAY PERMIT." 

/47/  SEE TEXT ACCOMPANYING NN. 7 - 8, SUPRA. 

/48/  THE APPENDIX FILED IN THIS COURT, AND CONTAINING ONLY THOSE
PORTIONS OF THE RECORD DESIGNATED BY THE PARTIES, INCLUDES OVER 800
PAGES OF TESTIMONY AND OVER 300 PAGES OF EXHIBITS FROM THE REOPENED
PROCEEDINGS.  WE NOTE THAT FOUR DIFFERENNT COST STUDIES WERE
PRESENTED.  THESE STUDIES ESTIMATED COSTS OF PRODUCTION RANGING FROM
18.2[ TO 24.03[ PER MCF FOR GAS FLOWING UNDER CONTRACTS DATED PRIOR TO
OCTOBER 1, 1968.  WITH RESPECT TO GAS SOLD UNDER CONTRACTS DATED ON OR
AFTER OCTOBER 1, 1968, THE COST ESTIMATES BASED ON A 1969 TEST YEAR
RANGED FROM 19.39[ TO 38.02[.  THE RATES ULTIMATELY FIXED BY THE
COMMISSION, EVEN INCLUDING INCENTIVE INCREMENTS, WERE WITHIN THE RANGE
OF COST ESTIMATES. 

/49/  SEE PERMIAN BASIN, 390 U.S., AT 769 - 770.  WE SAID THERE:
"(THE JUST AND REASONABLE STANDARD OF THE NATURAL GAS ACT "COINCIDES'
WITH THE APPLICABLE CONSTITUTIONAL STANDARDS, FPC V. NATURAL GAS
PIPELINE CO., (315 U.S. 575,) 586, AND ANY RATE SELECTED BY THE
COMMISSION FROM THE BROAD ZONE OF REASONABLENESS PERMITTED BY THE ACT
CANNOT PROPERLY BE ATTACKED AS CONFISCATORY."  ID., AT 770.  THE COURT
THEN REFUSED TO INVALIDATE, WITHOUT REFERENCE TO PARTICULAR CASES, A
COMMISSION PLAN TO PROVIDE "'APPROPRIATE RELIEF'  IF (A PRODUCER)
ESTABLISHES THAT ITS 'OUT-OF-POCKET EXPENSES IN CONNECTION WITH THE
OPERATION OF A PARTICULAR WELL' EXCEED ITS REVENUE FROM THE WELL UNDER
THE APPLICABLE AREA PRICE."  ID., AT 770 - 771. 

/50/  SEE N. 48, SUPRA.  THE EVIDENCE IS SET OUT AT LENGTH AND
DISCUSSED IN 46 F.P.C., AT 110 - 123. 

/51/  THIS IS WELL EXEMPLIFIED BY THE PROBLEMS ARISING FROM THE FACT
THAT MANY COSTS ARE JOINTLY INCURRED IN THE PRODUCTION OF OIL, GAS, AND
OTHER HYDROCARBONS.  ONE WITNESS TESTIFIED THAT ANY NUMBER OF
ACCOUNTING METHODS MAY BE USED TO ALLOCATE SUCH COSTS, AND LISTED 10 OF
THEM.  4 APP. 635 - 637.  HE FURTHER TESTIFIED THAT THESE METHODS WOULD
PRODUCE A WIDELY VARYING RANGE OF RESULTS, AND THAT A CHOICE OF ONE OF
THEM WAS LARGELY A MATTER OF PREFERENCE.  THE COMMISSION'S
DETERMINATION TO USE A "MODIFIED BTU" APPROACH, WHEREBY A BTU OF
NATURAL GAS IS ASSUMED TO BE "WORTH" ONLY A SELECTED FRACTION OF A BTU
OF OIL, IS A POLICY CHOICE HAVING SIGNIFICANT CONSEQUENCES FOR THE
INDUSTRY.  THE SAME WITNESS TESTIFIED THAT SWITCHING FROM THE
COMMISSION'S ASSUMPTION IN ITS 1968 OPINION THAT A BTU OF OIL IS WORTH
3.5 TIMES A BTU OF NATURAL GAS TO A 2.34 FACTOR WOULD MAKE SEVERAL
CENTS' DIFFERENCE IN THE CEILING RATES.  ID., AT 550.  AN ASSUMPTION OF
EQUALITY WOULD THUS APPEAR LIKELY TO HAVE A LARGE IMPACT.  YET NO
MARKET PRICE COMPARISON OF THE VALUES OF OIL AND GAS IS AVAILABLE FOR
THE INTERSTATE MARKET SINCE THE COMMISSION SETS THE PRICE OF NATURAL
GAS. 

MOREOVER, ANOTHER WITNESS TESTIFIED THAT, SINCE NATURAL GAS COMPETES
WITH OIL IN MANY MARKETS, PRODUCERS OF BOTH HARM THEMSELVES WHEN THEY
EXPEND THEIR PRODUCTION OF NATURAL GAS UNDER THE RESTRAINT OF PRICE
CEILINGS.  ID., AT 476 - 481.  COMPARE N. 23, SUPRA. 

/52/  46 F.P.C., AT 121. 

/53/  SEE PERMIAN BASIN, 390 U.S., AT 815 N. 98.  WITH THE
INTRODUCTION OF THE FORMULA USED IN THIS CASE, THE COMMISSION STATED: 

"ADJUSTMENT FOR EXPLORATION IN EXCESS OF PRODUCTION.  THIS
ADJUSTMENT WAS DESIGNED, IN PRIOR CASES, TO CONTINUE TO PROVIDE
FINDINGS IN EXCESS OF PRODUCTION.  AT THE PRESENT TIME, FINDINGS OF NON
ASSOCIATED GAS ARE SUBSTANTIALLY LESS THAN PRODUCTION . . . . AS WE
INDICATED IN TEXAS GULF COAST, OUR CONCEPT OF ECONOMIC COSTING INCLUDES
THE COSTS OF ELICITING THE REQUIRED EXPLORATORY AND DRILLING EFFORT. 
THUS, THERE IS NO REASON TO CONSIDER SPECIAL ALLOWANCE CATEGORIES."  46
F.P.C., AT 133. 

/54/  SEE 5 APP. 266E. 

/55/  IN ITS OPINION ON REHEARING THE COMMISSION STATED, 46 F.P.C.,
AT 636 - 637:  "WE NOTE, AGAIN, THAT THE BTU CONTENT OF CASINGHED AND
GAS-WELL GAS IS ABOUT THE SAME, AND THE RECORD SHOWS THAT SUBSTANTIAL
VOLUMES OF CASINGHEAD GAS ARE BEING FLARED IN SOUTHERN LOUISIANA-
REASON IN ITSELF FOR ELIMINATING THE PRICE DISCRIMINATION." 

CARROLL L. GILLIAM ARGUED THE CAUSE FOR PETITIONER IN NO. 73 - 437. 
WITH HIM ON THE BRIEFS WERE TOM P. HAMILL, ROBERT D. HAWORTH, AND
PHILIP R. EHRENKRANZ.  GEORGE E. MORROW ARGUED THE CAUSE FOR
PETITIONERS IN NOS. 73 - 457 AND 73 - 464.  WITH HIM ON THE BRIEFS FOR
PETITIONER IN NO. 73 - 464 WERE RUBEN GOLDBERG AND CHARLES F. WHEATLEY,
JR. MICHAEL H. ROSENBLOOM FILED BRIEFS FOR PETITIONER IN NO. 73 - 457. 

LEO E. FORQUER ARGUED THA CAUSE FOR RESPONDENT FEDERAL POWER
COMMISSION IN ALL CASES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
BORK, MARK L. EVANS, AND GEORGE W. MCHENRY, JR. JOHN R. REBMEN ARGUED
THE CAUSE FOR PRODUCER RESPONDENTS IN ALL CASES.  WITH HIM ON THE BRIEF
FOR RESPONDENTS EXXON CORP. ET AL. WERE MARTIN N. ERCK, DAVID G.
STEVENSON, RICHARD F. GENERELLY, EDWARD J. KREMER, CHARLES E. MCGEE,
CECIL N. COOK, THOMAS H. BURTON, W.J. STARK, WARREN M. SPARDS, B. JAMES
MCGRAW, ROBERT W. HENDERSON, WILLIAM A. SACKMANN, JOHN L. WILLIFORD,
PAUL W. HICKS, OLIVER L. STONE, RONALD J. JACOBS, RICHARD F. REMMERS,
STANLEY M. MORLEY, LOUIS FLAX, H.W. VARNER, PAT TIMMONS, SCOTT P.
ANGER, KIRK W. WEINERT, C. FIELDING EARLY, JR., AND GEORGE C. BOND. 
RAYMOND N. SHIBLEY FILED A BRIEF FOR RESPONDENT PIPELINE PURCHASER
GROUP IN ALL CASES.  FRANCIS R. KIRKHAM, JAMES B. ATKIN, WOOLLEN H.
WALSHE, JUSTIN R. WOLF, AND DAVID B. WARD FILED A BRIEF FOR RESPONDENT
THE CALIFORNIA COMPANY, A DIVISION OF CHEVRON OIL CO., IN ALL CASES. 
JOHN E. HOLTZINGER, JR., AND FREDERICK MORING FILED A BRIEF FOR
RESPONDENT ASSOCIATED GAS DISTRIBUTORS IN ALL CASES.  C. WILLIAM
COOPER, TILFORD A. JONES, EDWARD H. GERSTENFIELD, ROBERT CORP, NORMAN
A. FLANINGAM, LAUMAN MARTIN, RICHARD M. MERRIMAN, ELMER NAFZIGER, JON
D. NOLAND, JAMES O'MALLEY, JR., RICHARD A ROSAN, WILLIAM W. ROSS,
THOMAS C. MATTHEWS, ARTHUR R. SEDER, JR., CHARLES V. SHANNON, JUSTIN A.
STANLEY, AND J. STANLEY STROUD FILED A BRIEF FOR RESPONDENTS UNITED
DISTRIBUTION COMPANIES IN ALL CASES. 
..END :


















DAVIS V. UNITED STATES, 417 U.S. 333 


       DAVIS V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 72 - 1454.  ARGUED FEBRUARY 26, 1974--DECIDED JUNE 10,

           1974; 472 F.2D 596, REVERSED AND REMANDED. 


    AFTER BEING DECLARED A DELINQUENT, PETITIONER WAS ORDERED TO

  REPORT FOR INDUCTION PURSUANT TO SELECTIVE SERVICE REGULATIONS,

  WHICH PERMITTED THE ORDERING OF A DECLARED DELINQUENT TO REPORT

  FOR INDUCTION EVEN THOUGH HE HAD NOT BEEN FOUND ACCEPTABLE FOR

  MILITARY SERVICE.  WHEN PETITIONER DID NOT REPORT AS ORDERED, HE

  WAS PROSECUTED AND CONVICTED FOR FAILURE TO REPORT FOR

  INDUCTION.  FOLLOWING A REMAND BY THE COURT OF APPEALS FOR

  RECONSIDERATION IN THE LIGHT OF THE INTERVENING DECISION OF THIS

  COURT IN GUTKNECHT V. UNITED STATES, 396 U.S. 295, THE DISTRICT

COURT CONCLUDED THAT GUTKNECHT DID NOT AFFECT THE CONVICTION, AND

  THE COURT OF APPEALS AFFIRMED.  WHILE PETITIONER'S PETITION FOR

  CERTIORARI WAS PENDING IN THIS COURT, THE COURT OF APPEALS

  DECIDED UNITED STATES V. FOX, 454 F.2D 593, WHEREIN, ON THE

  AUTHORITY OF GUTKNECHT, THAT COURT REVERSED A CONVICTION BASED ON

  FACTS VIRTUALLY IDENTICAL TO THOSE ON WHICH PETITIONER'S

  CONVICTION WAS BASED.  THIS COURT SUBSEQUENTLY DENIED CERTIORARI

  IN THE PETITIONER'S CASE.  AFTER BEGINNING HIS SENTENCE,

  PETITIONER BROUGHT THIS COLLATERAL PROCEEDING UNDER 28 U.S.C.

  2255, ASSERTING THAT THE COURT OF APPEALS IN THE FOX CASE HAD

  EFFECTED A CHANGE IN THE LAW OF THE NINTH CIRCUIT AFTER

  AFFIRMANCE OF HIS CONVICTION AND THAT THE HOLDING IN FOX REQUIRED

  THAT HIS CONVICTION BE SET ASIDE.  THE DISTRICT COURT SUMMARILY

  DENIED RELIEF.  THE COURT OF APPEALS AFFIRMED ON THE GROUND THAT

  BECAUSE PETITIONER HAD UNSUCCESSFULLY LITIGATED THE GUTKNECHT

  ISSUE ON DIRECT REVIEW, THE COURT'S EARLIER AFFIRMANCE WAS "THE

  LAW OF THE CASE" AND PRECLUDED PETITIONER FROM SECURING RELIEF

  UNDER 2255 ON THE BASIS OF AN INTERVENING CHANGE IN LAW.  HELD: 

     1.  EVEN THOUGH THE LEGAL ISSUE RAISED IN A PRIOR DIRECT
APPEAL

FROM PETITIONER'S CONVICTION WAS DETERMINED AGAINST PETITIONER,

  HE IS NOT PRECLUDED FROM RAISING THE ISSUE IN A 2255 PROCEEDING

  "IF NEW LAW HAS BEEN MADE . . . SINCE THE TRIAL AND APPEAL." 

  KAUFMAN V. UNITED STATES, 394 U.S. 217, 230.  PP. 341 - 342. 

     2.  THE FACT THAT PETITIONER'S CLAIM IS GROUNDED "IN THE LAWS

  OF THE UNITED STATES" RATHER THAN IN THE CONSTITUTION DOES NOT

  PRECLUDE ITS ASSERTION IN A 2255 PROCEEDING, PARTICULARLY SINCE

  2255 PERMITS A FEDERAL PRISONER TO ASSERT A CLAIM THAT HIS

  CONFINEMENT IS "IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE

UNITED STATES."  SUNAL V. LARGE, 332 U.S. 174, DISTINGUISHED. 

  PP. 342 - 346. 

     3.  THE ISSUE THAT PETITIONER RAISES IS COGNIZABLE IN A 2255
PROCEEDING.  PP. 346 - 347. 

    STEWART, J., DELIVERED THE OPINION FOR THE COURT, IN WHICH

  BURGER, C.J., AND DOUGLAS, BRENNAN, WHITE, MARSHALL, AND

  BLACKMUN, JJ., JOINED.  POWELL, J., FILED AN OPINION CONCURRING

  IN PART AND DISSENTING IN PART, POST, P. 347.  REHNQUIST, J.,

  FILED A DISSENTING OPINION, POST, P. 350. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE AVAILABILITY OF COLLATERAL RELIEF FROM A
FEDERAL CRIMINAL CONVICTION BASED UPON AN INTERVENING CHANGE IN
SUBSTANTIVE LAW.  WHILE THE QUESTION PRESENTED IS A RELATIVELY NARROW
ONE, IT ARISES AS THE RESULT OF A RATHER COMPLICATED CHAIN OF EVENTS. 

        I 

IN FEBRUARY 1965, THE PETITIONER, HOSEPH ANTHONY DAVIS, WAS
CLASSIFIED I-A BY HIS DRAFT BOARD AND ORDERED TO REPORT FOR A PRE
INDUCTION PHYSICAL EXAMINATION.  DAVIS FAILED TO APPEAR ON THE
APPOINTED DATE.  HE LATER INFORMED HIS LOCAL BOARD THAT HIS FAILURE TO
REPORT WAS DUE TO ILLNESS.  ALTHOUGH THE BOARD ATTEMPTED TO ARRANGE A
SECOND DATE FOR THE PRE-INDUCTION PHYSICAL, ITS ATTEMPTS TO COMMUNICATE
WITH THE PETITIONER WERE FRUSTRATED BY HIS FAILURE TO KEEP THE BOARD
APPRISED OF HIS CORRECT MAILING ADDRESSES.  AS A RESULT, THE LOCAL
BOARD'S COMMUNICATIONS TO THE PETITIONER WERE RETURNED TO THE BOARD
STAMPED "ADDRESSEE UNKNOWN," AND DAVIS AGAIN FAILED TO REPORT FOR THE
PHYSICAL.  IN DECEMBER 1965, THE BOARD SENT THE PETITIONER A WARNING
THAT IT WAS CONSIDERING DECLARING HIM A DELINQUENT BECAUSE OF HIS
FAILURE TO REPORT FOR THE SECOND PRE-INDUCTION PHYSICAL.  /1/  THIS
COMMUNICATION WAS ALSO RETURNED TO THE BOARD STAMPED "ADDRESSEE
UNKNOWN." 

AFTER ANOTHER UNSUCCESSFUL ATTEMPT TO COMMUNICATE WITH THE
PETITIONER, THE LOCAL BOARD DECLARED HIM A DELINQUENT, PURSUANT TO 32
CFR 1642.4(A) (1967), /2/  BOTH BECAUSE OF HIS FAILURE TO REPORT FOR
THE SECOND PRE-INDUCTION PHYSICAL AND BECAUSE OF HIS FAILURE TO KEEP
THE LOCAL BOARD INFORMED OF HIS CURRENT ADDRESS.  /3/  AT THE SAME TIME
THE BOARD MAILED THE PETITIONER A DELINQUENCY NOTICE.  SHORTLY AFTER
THE DELINQUENCY DECLARATION, THE BOARD SENT THE PETITIONER AN ORDER
DIRECTING HIM TO REPORT FOR INDUCTION INTO THE ARMED FORCES.  ONCE
AGAIN, THE ORDER WAS RETURNED TO THE BOARD STAMPED "ADDRESSEE
UNKNOWN."  SEVERAL MONTHS LATER, THE BOARD SENT THE PETITIONER A SECOND
ORDER TO REPORT FOR INDUCTION.  THIS TIME THE ORDER WAS MAILED TO A ST.
PAUL, MINNESOTA, ADDRESS THAT DAVIS HAD USED WHEN REQUESTING A
DUPLICATE DRAFT CARD.  ALTHOUGH THERE WAS NO INDICATION THAT DAVIS DID
NOT RECEIVE THE INDUCTION ORDER, HE ONCE AGAIN FAILED TO REPORT AS
ORDERED.  THIS SECOND FAILURE TO REPORT FOR INDUCTION RESULTED IN THE
PETITIONER'S PROSECUTION AND CONVICTION UNDER 50 U.S.C. APP. 462(A). 
/4/ 

AT THE TIME THAT THE LOCAL BOARD ISSUED THE SECOND INDUCTION ORDER,
32 CFR 1631.7(A) (1967) PROVIDED THAT REGISTRANTS COULD BE ORDERED TO
REPORT FOR INDUCTION ONLY AFTER THEY "(HAD) BEEN FOUND ACCEPTABLE FOR
SERVICE IN THE ARMED FORCES AND . . . THE LOCAL BOARD (HAD) MAILED
(THEM) A STATEMENT OF ACCEPTABILITY . . . AT LEAST 21 DAYS BEFORE THE
DATE FIXED FOR INDUCTION."  SINCE, AT THE TIME OF HIS INDUCTION ORDER,
DAVIS HAD NOT YET APPEARED FOR A PHYSICAL EXAMINATION TO DETERMINE HIS
ACCEPTABILITY, QUITE OBVIOUSLY NEITHER ONE OF THESE REQUIREMENTS WAS
SATISFIED.  THE REGULATION, HOWEVER, WENT ON TO PROVIDE "(THAT A
REGISTRANT CLASSIFIED IN CLASS I-A OR CLASS I-A-O WHO IS A DELINQUENT
MAY BE SELECTED AND ORDERED TO REPORT FOR INDUCTION TO FILL AN
INDUCTION CALL NOTWITHSTANDING THE FACT THAT HE HAS NOT BEEN FOUND
ACCEPTABLE FOR SERVICE IN THE ARMED FORCES AND HAS NOT BEEN MAILED A
STATEMENT OF ACCEPTABILITY . . . "  THE ONLY OTHER REGISTRANTS
SIMILARLY EXCEPTED FROM THESE PREREQUISITES WERE THOSE WHO HAD
VOLUNTEERED FOR INDUCTION.  IN LIGHT OF THIS PROVISO, THE LOCAL BOARD
EVIDENTLY CONCLUDED THAT THE PRECONDITIONS TO INDUCTION STATED IN
1931.7(A) WERE INAPPLICABLE TO THE PETITIONER, WHOM IT HAD EARLIER
DECLARED TO BE A DELINQUENT, AND THAT IT WAS THUS FREE TO ISSUE AN
INDUCTION ORDER TO THE PETITIONER.  /5/ 

DAVIS APPEALED HIS CONVICTION TO THE COURT OF APPEALS FOR THE NINTH
CIRCUIT.  WHILE THAT APPEAL WAS PENDING, THIS COURT ANNOUNCED ITS
DECISION IN GUTKNECHT V. UNITED STATES, 396 U.S. 295 (1970).  IN
GUTKNECHT A SELECTIVE SERVICE REGISTRANT'S INDUCTION HAD BEEN
ACCELERATED BECAUSE HIS LOCAL BOARD HAD DECLARED HIM A DELINQUENT.  /6/
WHEN HE FAILED TO REPORT FOR INDUCTION AS ORDERED, HE WAS PROSECUTED
AND CONVICTED UNDER 50 U.S.C. APP. 462.  THE DELINQUENT REGISTRANT'S
ACCELERATED INDUCTION WAS ORDERED IN ACCORDANCE WITH ANOTHER PORTION OF
32 CFR 1631.7(A) THAT, LIKE THE PROVISION APPLICABLE TO DAVIS, CALLED
FOR EXCEPTIONAL TREATMENT FOR REGISTRANTS WHOM A LOCAL BOARD HAD
DECLARED DELINQUENT.  LOCAL BOARDS WERE AUTHORIZED BY 32 CFR 1642.4 TO
ISSUE A DECLARATION OF DELINQUENCY "(WHENEVER A REGISTRANT . . . FAILED
TO PERFORM ANY DUTY OR DUTIES REQUIRED OF HIM UNDER THE SELECTIVE
SERVICE LAW," OTHER THAN TO REPORT AS ORDERED FOR INDUCTION OR FOR
CIVILIAN WORK.  BOTH DAVIS AND GUTKNECHT WERE DECLARED DELINQUENT ON
THE AUTHORITY OF 1642.4.  /7/  IN GUTKNECHT, THE COURT HELD THAT THE
SELECTIVE SERVICE REGULATIONS THAT ACCELERATED THE INDUCTION OF
DELINQUENT REGISTRANTS BY SHIFTING THEM TO THE FIRST PRIORITY IN THE
ORDER OF CALL WERE PUNITIVE IN NATURE AND, AS SUCH, WERE WITHOUT
LEGISLATIVE SANCTION.  /8/  ACCORDINGLY, THE COURT CONCLUDED THAT THE
REGISTRANT COULD NOT BE PROSECUTED FOR FAILURE TO COMPLY WITH AN
INDUCTION ORDER ISSUED PURSUANT TO THESE REGULATIONS. 

AFTER GUTKNECHT, THE COURT OF APPEALS REMANDED THE PETITIONER'S CASE
TO THE DISTRICT COURT "WITHOUT LIMITATION OF SCOPE BUT ESPECIALLY FOR
CONSIDERATION . . . IN THE LIGHT OF THE INTERVENING DECISION OF
GUTKNECHT V. UNITED STATES."  432 F.2D 1009, 1010 (CA9 1970).  ON
REMAND, THE DISTRICT COURT, AFTER CONDUCTING A HEARING, CONCLUDED THAT
THE PETITIONER'S INDUCTION HAD NOT BEEN ACCELERATED BECAUSE OF HIS
DELINQUENCY STATUS AND THAT GUTKNECHT THEREFORE DID NOT AFFECT HIS
CONVICTION.  /9/  ON APPEAL, THE COURT OF APPEALS AFFIRMED.  447 F.2D
1376. 

WHILE DAVIS' SUBSEQUENT PETITION FOR CERTIORARI WAS PENDING IN THIS
COURT, THE COURT OF APPEALS FOR THE NINTH CIRCUIT DECIDED UNITED STATES
V. FOX, 454 F.2D 593.  THE CIRCUMSTANCES LEADING TO FOX'S INDUCTION
ORDER WERE VIRTUALLY IDENTICAL TO THOSE IN THE PETITIONER'S CASE.  LIKE
DAVIS, "FOX WAS DECLARED DELINQUENT BY HIS SELECTIVE SERVICE BOARD . .
. FOR HIS FAILURE TO APPEAR FOR PRE-INDUCTION PHYSICAL EXAMINATIONS AS
ORDERED . . . ."  IBID.  PRIOR TO RECEIVING HIS INDUCTION ORDER, "FOX .
. . WAS NEVER FOUND TO BE 'ACCEPTABLE FOR SERVICE' AND HE WAS (NOT)
MAILED A STATEMENT OF ACCEPTABILITY . . . AT LEAST 21 DAYS BEFORE HIS
INDUCTION DATE . . . . C "(THUS THE ONLY AUTHORITY THE LOCAL BOARD HAD
FOR ITS ORDER TO FOX TO REPORT FOR INDUCTION WAS THE PROVISION OF
1631.7 (B) /10/  FOR DELINQUENTS TO BE CALLED WITHOUT A PREVIOUS
FINDING OF ACCEPTABILITY OR THE MAILING OF A STATEMENT OF ACCEPTABILITY
21 DAYS BEFORE INDUCTION."  ID., AT 595.  THIS WAS THE SAME REGULATION
ON WHICH THE BOARD'S INDUCTION ORDER TO DAVIS HAD BEEN PREDICATED. 

AT FOX'S POST-GUTKNECHT TRIAL FOR FAILURE TO REPORT FOR INDUCTION,
"THE GOVERNMENT OFFERED EVIDENCE . . . TO SHOW THAT FOX'S INDUCTION
ORDER WAS NOT ACCELERATED BY THE DECLARATION OF DELINQUENCY."  "THE
TRIAL JUDGE FOUND NO ACCELERATION AND CONVICTED."  ID., AT 593 - 594. 
THE COURT OF APPEALS REVERSED FOX'S CONVICTION ON THE AUTHORITY OF
GUTKNECHT.  THE COURT HELD THAT "FOX'S INDUCTION WAS ACCELERATED BY THE
DECLARATION OF DELINQUENCY AS A MATTER OF LAW (BECAUSE) (WITHOUT THE
DECLARATION, THE BOARD COULD NOT HAVE ORDERED HIM TO REPORT FOR
INDUCTION."  ID., AT 594.  THUS, THE COURT CONCLUDED "THAT THE
(INDUCTION) ORDER . . . WAS ILLEGAL AND CREATED NO DUTY ON FOX'S PART
TO REPORT FOR INDUCTION."  ID., AT 595. 

IN OPPOSING DAVIS' PETITION FOR CERTIORARI, THE SOLICITOR GENERAL
CONCEDED THAT "THE HOLDINGS IN FOX AND IN (DAVIS) ARE INCONSISTENT,"
BUT NEVERTHELESS URGED THE COURT TO DENY CERTIORARI IN THAT "THE
CONFLICT IS AN INTRA-CIRCUIT ONE . . . (TO) BE RESOLVED BY THE NINTH
CIRCUIT ITSELF . . . ."  SUPPLEMENTAL MEMORANDUM FOR THE UNITED STATES
IN OPPOSITION 2 (NO. 71 - 661, O.T. 1971).  WE DENIED DAVIS' PETITION
FOR CERTIORARI, 405 U.S. 933. 

AFTER AN UNSUCCESSFUL ATTEMPT TO SECURE A REHEARING IN THE COURT OF
APPEALS, DAVIS WAS REMITTED TO FEDERAL CUSTODY TO COMMENCE SERVING HIS
THREE-YEAR SENTENCE.  HE THEN INSTITUTED THE PRESENT COLLATERAL
PROCEEDING UNDER 28 U.S.C. 2255, WHICH PERMITS "(A) PRISONER IN CUSTODY
UNDER SENTENCE OF A COURT ESTABLISHED BY ACT OF CONGRESS CLAIMING THE
RIGHT TO BE RELEASED UPON THE GROUND THAT THE SENTENCE WAS IMPOSED IN
VIOLATION OF THE CONSTITUTION OR LAWS OF THE UNITED STATES . . . (TO)
MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE."  IN HIS 2255 MOTION, DAVIS ASSERTED THAT THE
COURT OF APPEALS FOR THE NINTH CIRCUIT HAD IN THE FOX CASE EFFECTED A
CHANGE IN THE LAW OF THAT CIRCUIT AFTER THE AFFIRMANCE OF HIS
CONVICTION, AND THAT ITS HOLDING IN FOX REQUIRED HIS CONVICTION TO BE
SET ASIDE.  THE DISTRICT COURT SUMMARILY DENIED THE PETITIONER'S
MOTION.  /11/  ON APPEAL, THE COURT OF APPEALS AFFIRMED WITHOUT
CONSIDERING THE MERITS OF THE PETITIONER'S CLAIM ON THE GROUND THAT
"(THE DECISION ON THE DIRECT APPEAL IS THE LAW OF THE CASE," AND THAT
THEREFORE ANY "NEW LAW, OR CHANGE IN LAW" RESULTING FROM ITS DECISION
IN UNITED STATES V. FOX WOULD "NOT (BE) APPLIED IN THIS CIRCUIT UNDER
CIRCUMSTANCES SUCH AS HERE PRESENTED."  472 F.2D 596.  BECAUSE THE CASE
PRESENTS A SEEMINGLY IMPORTANT QUESTION CONCERNING THE EXTENT TO WHICH
RELIEF UNDER 28 U.S.C. 2255 IS AVAILABLE BY REASON OF AN INTERVENING
CHANGE IN LAW, WE GRANTED CERTIORARI.  414 U.S. 999. 

        II 

THE SOLE ISSUE BEFORE THE COURT IN THE PRESENT POSTURE OF THIS CASE
IS THE PROPRIETY OF THE COURT OF APPEALS'  JUDGMENT THAT A CHANGE IN
THE LAW OF THAT CIRCUIT AFTER THE PETITIONER'S CONVICTION MAY NOT BE
SUCCESSFULLY ASSERTED BY HIM IN A 2255 PROCEEDING.  /12/  THUS, OUR
INQUIRY IS CONFINED TO THE AVAILABILITY OF A 2255 PROCEEDING FOR THE
RESOLUTION OF DAVIS' CLAIM TO RELIEF FROM HIS CONVICTION. 

BECAUSE THE PETITIONER HAD UNSUCCESSFULLY LITIGATED THE GUTKNECHT
ISSUE ON DIRECT REVIEW, THE COURT OF APPEALS HALD THAT ITS EARLIER
AFFIRMANCE WAS "THE LAW OF THE CASE"  AND PRECLUDED THE PETITIONER FROM
ASSERTING ON COLLATERAL ATTACK HIS CLAIM THAT ITS FOX DECISION HAD
SUBSEQUENTLY CHANGED THE LAW OF THE NINTH CIRCUIT ON THAT ISSUE.  IN
THIS COURT, THE SOLICITOR GENERAL'S BRIEF CONCEDES THAT THE OPINION OF
THE COURT OF APPEALS IN THIS REGARD "IS NOT CONSONANT WITH THIS COURT'S
HOLDING IN SANDERS V. UNITED STATES, 373 U.S. 1."  /13/  IN SANDERS,
THE COURT HELD, INTER ALIA, THAT EVEN THOUGH THE LEGAL ISSUE RAISED IN
A 2255 MOTION "WAS DETERMINED AGAINST (THE APPLICANT) ON THE MERITS ON
A PRIOR APPLICATION," "THE APPLICANT MAY (NEVERTHELESS) BE ENTITLED TO
A NEW HEARING UPON SHOWING AN INTERVENING CHANGE IN THE LAW . . . ." 
SANDERS V. UNITED STATES, 373 U.S.1, 17.  THE SAME RULE APPLIES WHEN
THE PRIOR DETERMINATION WAS MADE ON DIRECT APPEAL FROM THE APPLICANT'S
CONVICTION, INSTEAD OF IN AN EARLIER 2255 PROCEEDING, "IF NEW LAW HAS
BEEN MADE . . . SINCE THE TRIAL AND APPEAL."  KAUFMAN V. UNITED STATES,
394 U.S. 217, 230 (1969).  THUS, THE COURT OF APPEALS ERRED IN HOLDING
THAT "THE LAW OF THE CASE," AS DETERMINED IN THE EARLIER APPEAL FROM
THE PETITIONER'S CONVICTION, PRECLUDED HIM FROM SECURING RELIEF UNDER
2255 ON THE BASIS OF AN INTERVENING CHANGE IN LAW. 

NEVERTHELESS, THE SOLICITOR GENERAL CONTENDS THAT WE SHOULD AFFIRM
THE JUDGMENT OF THE COURT OF APPEALS BECAUSE THE PETITIONER'S CLAIM IS
NOT "OF CONSTITUTIONAL DIMENSION" (BRIEF FOR UNITED STATES 34) AND THUS
IS NOT COGNIZABLE IN A 2255 COLLATERAL PROCEEDING.  AT THE OUT-SET, WE
NOTE THAT THE GOVERNMENT'S POSITION FINDS SCANT SUPPORT IN THE TEXT OF
2255, WHICH PERMITS A FEDERAL PRISONER TO ASSERT A CLAIM THAT HIS
CONFINEMENT IS "IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE UNITED
STATES." 

IT IS ARGUED FORCEFULLY IN A DISSENTING OPINION TODAY THAT THIS
LANGUAGE, WHICH APPEARS IN THE FIRST PARAGRAPH OF 2255, IS SOMEHOW
QUALIFIED BY THE THIRD PARAGRAPH OF THE STATUTE, WHICH PROVIDES:

"IF THE COURT FINDS THAT THE JUDGMENT WAS RENDERED WITHOUT
JURISDICTION, OR THAT THE SENTENCE IMPOSED WAS NOT AUTHORIZED BY LAW OR
OTHERWISE OPEN TO COLLATERAL ATTACK, OR THAT THERE HAS BEEN SUCH A
DENIAL OR INFRINGEMENT OF THE CONSTITUTIONAL RIGHTS OF THE PRISONER AS
TO RENDER THE JUDGMENT VULNERALBE TO COLLATERAL ATTACK, THE COURT SHALL
VACATE AND SET THE JUDGMENT ASIDE AND SHALL DISCHARGE THE PRISONER OR
RESENTENCE HIM OR GRANT A NEW TRIAL OR CORRECT THE SENTENCE AS MAY
APPEAR APPROPRIATE."  THE DISSENT OF MR. JUSTICE REHNQUIST REJECTS ANY
SUGGESTION THAT THE LANGUAGE CONCERNING "SENTENCES) . . . OTHERWISE
OPEN TO COLLATERAL ATTACK" CAN ENCOMPASS A CLAIM THAT A CONFINEMENT
UNDER THAT SENTENCE VIOLATES THE "LAWS OF THE UNITED STATES,"
CONTENDING THAT THIS WOULD REDUCE THE REMAINING LANGUAGE REGARDING "A
DENIAL OR INFRINGEMENT OF CONSTITUTIONAL RIGHTS" TO SURPLUSAGE. 
INDEED, THE NUB OF THE DISSENT IS THAT 2255 "DOES NOT SPEAK OF AN
ILLEGAL 'CONFINEMENT' . . . OR EVEN OF AN ILLEGAL CONVICTION, BUT
RATHER OF ILLEGAL SENTENCES."  POST, AT 356.  ALTHOUGH THIS MICROSCOPIC
ANALYSIS OF 2255 SURELY SHOWS THAT THE STATUTORY LANGUAGE IS SOMEWHAT
LACKING IN PRECISION, THE RESULTING SHADOW THAT THE DISSENTING OPINION
WOULD CAST OVER THE STATUTE TOTALLY DISAPPEARS IN THE LIGHT OF ITS
LEGISLATIVE HISTORY.     THAT HISTORY MAKES CLEAR THAT 2255 WAS
INTENDED TO AFFORD FEDERAL PRISONERS A REMEDY IDENTICAL IN SCOPE TO
FEDERAL HABEAS CORPUS.  AS THE COURT POINTED OUT IN UNITED STATES V.
HAYMAN, 342 U.S. 205, 219 (1952), THE "HISTORY OF SECTION 2255 SHOWS
THAT IT WAS PASSED AT THE INSTANCE OF THE JUDICIAL CONFERENCE TO MEET
PRACTICAL DIFFICULTIES THAT HAD ARISEN IN ADMINISTERING THE HABEAS
CORPUS JURISDICTION OF THE FEDERAL COURTS.  NOWHERE IN THE HISTORY OF
OF COLLATERAL ATTACK UPON THEIR CONVICTIONS.  ON THE CONTRARY, THE SOLE
PURPOSE WAS TO MINIMIZE THE DIFFICULTIES ENCOUNTERED IN HABEAS CORPUS
HEARINGS BY AFFORDING THE SAME RIGHTS IN ANOTHER AND MORE CONVENIENT
FORUM."  THUS, THERE CAN BE NO DOUBT THAT THE GROUNDS FOR RELIEF UNDER
2255 ARE EQUIVALENT TO THOSE ENCOMPASSED BY 2254, THE GENERAL FEDERAL
HABEAS CORPUS STATUTE, UNDER WHICH RELIEF IS AVAILABLE ON THE GROUND
THAT "(A PERSON) IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS
OR TREATIES OF THE UNITED STATES."  FURTHERMORE, ALTHOUGH THE DISSENT
OF MR. JUSTICE REHNQUIST DERIDES THE VIEW THAT THE WORDS "OTHERWISE
OPEN TO COLLATERAL ATTACK" ARE INTENDED TO BE "A CATCH-ALL PHRASE,"
POST, AT 358, THE LEGISLATIVE HISTORY FULLY SUPPORTS THAT VIEW.  IN
RECOMMENDING TO CONGRESS WHAT EVENTUALLY BECAME 2255, THE JUDICIAL
CONFERENCE COMMITTEE ON HABEAS CORPUS PROCEDURE STATED THAT "(THE
MOTION REMEDY BROADLY COVERS ALL SITUATIONS WHERE THE SENTENCE IS 'OPEN
TO COLLATERAL ATTACK.'  AS A REMEDY, IT IS INTENDED TO BE AS BROAD AS
HABEAS CORPUS.'  /14/ 

NO MICROSCOPIC READING OF 2255 CAN ESCAPE EITHER THE CLEAR AND
SIMPLE LANGUAGE OF 2254 AUTHORIZING HABEAS CORPUS RELIEF "ON THE GROUND
THAT (THE PRISONER) IS IN CUSTODY IN VIOLATION OF THE . . . LAWS . . .
OF THE UNITED STATES" OR THE UNAMBIGUOUS LEGISLATIVE HISTORY SHOWING
THAT 2255 WAS INTENDED TO MIRROR 2254 IN OPERATIVE EFFECT.  THUS, WE
CANNOT AGREE THAT THE THIRD PARAGRAPH OF 2255 WAS IN ANY FASHION
DESIGNED TO MARK A RETREAT FROM THE CLEAR STATEMENT THAT 2255
ENCOMPASSES A PRISONER'S CLAIM OF "THE RIGHT TO BE RELEASED UPON THE
GROUND THAT THE SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION
OR LAWS OF THE UNITED STATES."  ACCORDINGLY, WE CONCLUDE THAT THE TEXT
OF THE STATUTE CANNOT SUSTAIN THE GOVERNMENT'S POSITION THAT ONLY
CLAIMS "OF CONSTITUTIONAL DIMENSION" ARE COGNIZABLE UNDER 2255. 

MOREOVER, THERE IS NO SUPPORT IN THE PRIOR HOLDINGS OF THIS COURT
FOR THE PROPOSITION THAT A CLAIM IS NOT COGNIZABLE UNDER 2255 MERELY
BECAUSE IT IS GROUNDED IN THE "LAWS OF THE UNITED STATES" RATHER THAN
THE CONSTITUTION.  IT IS TRUE, OF COURSE, THAT IN SUNAL V. LARGE, 332
U.S. 174 (1947), THE COURT HELD THAT THE NONCONSTITUTIONAL CLAIM IN
THAT CASE COULD NOT BE ASSERTED TO SET ASIDE A CONVICTION ON COLLATERAL
ATTACK.  BUT SUNAL WAS MERELY AN EXAMPLE OF "THE GENERAL RULE THAT THE
WRIT OF HABEAS CORPUS WILL NOT BE ALLOWED TO DO SERVICE FOR AN
APPEAL."  ID., AT 178.  "APPEALS COULD HAVE BEEN TAKEN IN THESE CASES,
BUT THEY WERE NOT."  ID., AT 177.  THE COURT WAS CAREFUL TO POINT OUT
THAT "IF SUNAL AND KULICK HAD PURSUED THE APPELLATE COURSE AND FAILED,
THEIR CASES WOULD BE QUITE DIFFERENT.  BUT SINCE THEY CHOSE NOT TO
PURSUE THE REMEDY WHICH THEY HAD, WE DO NOT THINK THEY SHOULD NOW BE
ALLOWED TO JUSTIFY THEIR FAILURE BY SAYING THEY DEEMED ANY APPEAL
FUTILE."  ID., AT 181.  MOREOVER, "(THE CASE (WAS) NOT ONE WHERE THE
LAW WAS CHANGED AFTER THE TIME FOR APPEAL HAD EXPIRED."  IBID.  THUS,
SUNAL CANNOT BE READ TO STAND FOR THE BROAD PROPOSITION THAT
NONCONSTITUTIONAL CLAIMS CAN NEVER BE ASSERTED IN COLLATERAL ATTACKS
UPON CRIMINAL CONVICTIONS.  /15// RATHER, THE IMPLICATION WOULD SEEM TO
BE THAT, ABSENT THE PARTICULAR CONSIDERATIONS REGARDED AS DISPOSITIVE
IN THAT CASE, THE FACT THAT A CONTENTION IS GROUNDED NOT IN THE
CONSTITUTION, BUT IN THE "LAWS OF THE UNITED STATES"  WOULD NOT
PRECLUDE ITS ASSERTION IN A 2255 PROCEEDING. 

THIS IS NOT TO SAY, HOWEVER, THAT EVERY ASSERTED ERROR OF LAW CAN BE
RAISED ON A 2255 MOTION.  IN HILL V. UNITED STATES, 368 U.S. 424, 429
(1962), FOR EXAMPLE, WE HELD THAT "COLLATERAL RELIEF IS NOT AVAILABLE
WHEN ALL THAT IS SHOWN IS A FAILURE TO COMPLY WITH THE FORMAL
REQUIREMENTS" OF A RULE OF CRIMINAL PROCEDURE IN THE ABSENCE OF ANY
INDICATION THAT THE DEFENDANT WAS PREJUDICED BY THE ASSERTED TECHNICAL
ERROR.  WE SUGGESTED THAT THE APPROPRIATE INQUIRY WAS WHETHER THE
CLAIMED ERROR OF LAW WAS "A FUNDAMENTAL DEFECT WHICH INHERENTLY RESULTS
IN A COMPLETE MISCARRIAGE OF JUSTICE," AND WHETHER "(IT . . . PRESENTS)
EXCEPTIONAL CIRCUMSTANCES WHERE THE NEED FOR THE REMEDY AFFORDED BY THE
WRIT OF HABEAS CORPUS IS APPARENT."  ID., AT 428 (INTERNAL QUOTATION
MARKS OMITTED).  THE COURT DID NOT SUGGEST THAT ANY LINE COULD BE DRAWN
ON THE BASIS OF WHETHER THE CLAIM HAD ITS SOURCE IN THE CONSTITUTION OR
IN THE "LAWS OF THE UNITED STATES." 

IN THIS CASE, THE PETITIONER'S CONTENTION IS THAT THE DECISION IN
GUTKNECHT V. UNITED STATES, AS INTERPRETED AND APPLIED BY THE COURT OF
APPEALS FOR THE NINTH CIRCUIT IN THE FOX CASE AFTER HIS CONVICTION WAS
AFFIRMED, ESTABLISHES THAT HIS INDUCTION ORDER WAS INVALID UNDER THE
SELECTIVE SERVICE ACT AND THAT HE COULD NOT BE LAWFULLY CONVICTED FOR
FAILURE TO COMPLY WITH THAT ORDER.  IF THIS CONTENTION IS WELL TAKEN,
THEN DAVIS' CONVICTION AND PUNISHMENT ARE FOR AN ACT THAT THE LAW DOES
NOT MAKE CRIMINAL.  THERE CAN BE NO ROOM FOR DOUBT THAT SUCH A
CIRCUMSTANCE "INHERENTLY RESULTS IN A COMPLETE MISCARRIAGE OF JUSTICE"
AND "PRESENTS) EXCEPTIONAL CIRCUMSTANCES"  THAT JUSTIFY COLLATERAL
RELIEF UNDER 2255.  THEREFORE, ALTHOUGH WE EXPRESS NO VIEW ON THE
MERITS OF THE PETITIONER'S CLAIM, WE HOLD THAT THE ISSUE HE RAISES IS
COGNIZABLE IN A 2255 PROCEEDING. 

THE JUDGMENT OF THE COURT OF APPEALS IS ACCORDINGLY REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

       IT IS SO ORDERED. 

/1/  THE NOTICE INFORMED THE PETITIONER THAT HIS LOCAL BOARD WAS
"CONSIDERING DECLARING YOU A DELINQUENT."  IT FURTHER STATED THAT "(A)
DELINQUENT REGISTRANT LOSES HIS ELIGIBILITY FOR DEFERMENT AND MAY BE
PLACED IN A CLASS IMMEDIATELY AVAILABLE FOR SERVICE.  HE IS ORDERED FOR
INDUCTION AHEAD OF OTHER REGISTRANTS."  PET. FOR CERT. 21A. 

/2/  THUS REGULATION, WHICH WAS RESCINDED SHORTLY AFTER OUR DECISION
IN GUTKNECHT V. UNITED STATES, 396 U.S. 295 (1970), PROVIDED IN
PERTINENT PART:  "(A) WHENEVER A REGISTRANT HAS FAILED TO PERFORM ANY
DUTY OR DUTIES REQUIRED OF HIM UNDER THE SELECTIVE SERVICE LAW OTHER
THAN THE DUTY TO COMPLY WITH AN ORDER TO REPORT FOR INDUCTION . . . OR
THE DUTY TO COMPLY WITH AN ORDER TO REPORT FOR CIVILIAN WORK . . . ,
THE LOCAL BOARD MAY DECLARE HIM TO BE A DELINQUENT." 

/3/  TITLE 32 CFR 1641.4 IMPOSES A DUTY ON EVERY REGISTRANT TO
REPORT FOR AN ARMED FORCES PHYSICAL EXAMINATION AT THE TIME AND PLACE
FIXED IN THE ORDER MAILED TO THE REGISTRANT BY THE BOARD.  TITLE 32 CFR
1641.1 IMPOSES A DUTY ON EVERY REGISTRANT "TO KEEP HIS LOCAL BOARD
CURRENTLY INFORMED IN WRITING OF . . . THE ADDRESS WHERE MAIL WILL
REACH HIM . . . ." 

/4/  TITLE 50 U.S.C. APP. 462(A) PROVIDES, IN PERTINENT PART, THAT
"ANY PERSON . . . WHO IN ANY MANNER SHALL KNOWINGLY FAIL OR NEGLECT OR
REFUSE TO PERFORM ANY DUTY REQUIRED OF HIM UNDER OR IN THE EXECUTION OF
THIS TITLE, OR RULES, REGULATIONS, OR DIRECTIONS MADE PURSUANT TO THIS
TITLE . . . SHALL, UPON CONVICTION IN ANY DISTRICT COURT OF THE UNITED
STATES OF COMPETENT JURISDICTION, BE PUNISHED BY IMPRISONMENT FOR NOT
MORE THAN FIVE YEARS OR A FINE OF NOT MORE THAN $10,000, OR BY BOTH
SUCH FINE AND IMPRISONMENT."  32 CFR 1641.5 IMPOSES A DUTY ON EVERY
REGISTRANT "TO REPORT FOR INDUCTION AT THE TIME AND PLACE ORDERED BY
TEH LOCAL BOARD." 

/5/  BOTH INDUCTION ORDERS SENT TO THE PETITIONER HAD THE WORD
"DELINQUENT" TYPED ON THE FACE.  THE LOCAL BOARD'S "MINUTES OF ACTION"
ALSO REFLECT THAT THE PETITIONER WAS ORDERED TO REPORT "AS DEL." 

/6/  TITLE 32 CFR 1631.7 (1967) ESTABLISHED AN ORDER IN WHICH
REGISTRANTS WHO WERE ELIGIBLE WOULD BE CALLED FOR INDUCTION.  A
REGISTRANT'S PLACE IN THIS ORDER OF CALL WAS DETERMINED BY SEVERAL
FACTORS, INCLUDING AGE AND MARITAL STATUS.  IF A REGISTRANT WERE
DECLARED A DELINQUENT UNDER 32 CFR 1642.4 (1967) HE IMMEDIATELY ENTERED
THE FIRST PRIORITY IN THE ORDER OF CALL AND WAS ORDERED TO REPORT FOR
INDUCTION EVEN AHEAD OF VOLUNTEERS FOR INDUCTION.  IN THIS SENSE, THE
REGISTRANT'S INDUCTION WAS "ACCELERATED" AS A RESULT OF THE LOCAL
BOARD'S DELINQUENCY DECLARATION. 

/7/  GUTKNECHT HAD BEEN DECLARED A DELINQUENT FOR FAILING TO HAVE
HIS REGISTRATION CERTIFICATE AND CURRENT CLASSIFICATION NOTICE IN HIS
POSSESSION AT ALL TIMES, AS REQUIRED BY 32 CFR 1617.1 AND 1623.5,
RESPECTIVELY. 

/8/  IN THIS REGARD, THE COURT SAID: 

"THE POWER UNDER THE REGULATIONS TO DECLARE A REGISTRANT 'DELINQUENT'
HAS NO STATUTORY STANDARD OR EVEN GUIDELINES.  THE POWER IS EXERCISED
ENTIRELY AT THE DISCRETION OF THE LOCAL BOARD.  IT IS A BROAD, ROVING
AUTHORITY, A TYPE OF ADMINISTRATIVE ABSOLUTISM NOT CONGENIAL TO OUR LAW
MAKING TRADITIONS.  . . . WE SEARCH THE ACT IN VAIN FOR ANY CLUES THAT
CONGRESS DESIRED THE ACT TO HAVE PUNITIVE SANCTIONS APART FROM THE
CRIMINAL PROSECUTIONS SPECIFICALLY AUTHORIZED . . . . IF FEDERAL OR
STATE LAWS ARE VIOLATED BY REGISTRANTS, THEY CAN BE PROSECUTED.  IF
INDUCTION IS TO BE SUBSTITUTED FOR THESE PROSECUTIONS, A VAST REWRITING
OF THE ACT IS NEEDED."  396 U.S., AT 306 - 307. 

/9/  AT THE HEARING IN THE DISTRICT COURT, THE EXECUTIVE SECRETARY
OF THE LOCAL BOARD TESTIFIED THAT THE PETITIONER WOULD HAVE BEEN
INDUCTED EARLIER IF HE HAD NOT FAILED TO APPEAR FOR THE PHYSICAL.  IN
CORROBORATION, THE GOVERNMENT INTRODUCED THE LOCAL BOARD'S "DELIVERY
LISTS" SHOWING THE INDUCTION DATES OF OTHER REGISTRANTS AT THE LOCAL
BOARD.  THE DISTRICT COURT FOUND THAT IF THE PETITIONER HAD COMPLIED
WITH THE LOCAL BOARD'S PROCEDURES AND "(HAD . . . NOT BEEN DECLARED A
DELINQUENT, HE WOULD HAVE BEEN ORDERED TO REPORT FOR INDUCTION ON OR
BEFORE NOVEMBER 15, 1966," WHICH WOULD HAVE BEEN NEARLY EIGHT MONTHS
BEFORE HE FINALLY FAILED TO REPORT (JULY 11, 1967). 

/10/  BETWEEN THE DATES OF THE INDUCTION ORDERS OF DAVIS AND FOX,
THE PROVISIONS OF 32 CFR 1631.7(A) (1967) WERE INCORPORATED INTO 32 CFR
1631.7(B) (1969). 

/11/  AT THE TIME OF HIS 2255 MOTION IN THE DISTRICT COURT, DAVIS
ALSO MOVED UNDER FED. RULE CRIM. PROC. 35 FOR REDUCTION OR MODIFICATION
OF HIS SENTENCE.  THIS MOTION WAS TAKEN UNDER ADVISEMENT BY THE
DISTRICT COURT AND WAS THEREAFTER GRANTED IN PART.  AS A RESULT, THE
PETITIONER WAS RELEASED FROM INCARCERATION AFTER HAVING SERVED FOUR
MONTHS OF HIS THREE-YEAR SENTENCE, AND HE WAS PLACED ON PROBATION FOR
THE REMAINDER OF THE ORIGINAL TERM. 

/12/  IN THE ABSENCE OF A DECISION BY THE COURT OF APPEALS ON THE
MERITS OF THE PETITIONER'S CONTENTIONS, THIS CASE IS NOT AN APPROPRIATE
VEHICLE TO CONSIDER WHETHER THE GUTKNECHT DECISION HAS RETROACTIVE
APPLICATION OR WHETHER THE FOX CASE WAS CORRECTLY DECIDED BY THE COURT
OF APPEALS. 

/13/  BRIEF FOR UNITED STATES 25 N. 11. 

/14/  UNITED STATES V. HAYMAN, 342 U.S. 205, 217 (1952). 

/15/  ALTHOUGH SUNAL HELD THAT A FEDERAL PRISONER COULD NOT ASSERT A
NONCONSTITUTIONAL CLAIM ON COLLATERAL ATTACK IF HE HAD NOT RAISED IT ON
APPEAL, THE COURT THERE RECOGNIZED THAT THIS RULE WOULD NOT BAR THE
ASSERTION OF CONSTITUTIONAL CLAIMS IN COLLATERAL PROCEEDINGS EVEN IF
THE APPLICANT HAD FAILED TO PURSUE THEM ON APPEAL.  332 U.S. 174, 178 -
179, 182.  CF. KAUFMAN V. UNITED STATES, 394 U.S. 217, 223 (1969). 

MR. JUSTICE POWELL, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT'S HOLDING THAT REVIEW UNDER 28 U.S.C. 2255 IS
AVAILABLE TO PETITIONER, DUE TO THE INTERVENING CHANGE IN THE LAW OF
THE CIRCUIT.  BUT I WOULD DISPOSE OF THE CASE FINALLY, NOT REMAND IT. 

PETITIONER'S CASE TURNS ON WHETHER HIS CONVICTION FOR REFUSING
INDUCTION HAS BEEN INVALIDATED BY GUTKNECHT V. UNITED STATES, 396 U.S.
295 (1970).  BOTH PARTIES HAVE RAISED, BRIEFED AND ARGUED THIS ISSUE,
AND IT IS PROPERLY BEFORE US.  WE SHOULD, IN THE INTEREST OF JUDICIAL
ECONOMY IF FOR NO OTHER REASON, DECIDE THE GUTKNECHT ISSUE AND BRING TO
AN END THIS LENGTHY LITIGATION, RATHER THAN REMAND IT TO THE COURT OF
APPEALS FOR THAT COURT'S FOURTH ROUND OF CONSIDERATION. 

IN MY VIEW, PETITIONER'S RELIANCE UPON GUTKNECHT IS MISPLACED. 
PETITIONER READS GUTKNECHT AS INVALIDATING THE FORMER DELINQUENCY
REGULATIONS OF THE SELECTIVE SERVICE SYSTEM IN EVERY POSSIBLE
APPLICATION.  /1/  HE ESPOUSES A PER SE RULE UNDER WHICH ANY INDUCTION
ORDER THAT DERIVED FROM AN APPLICATION OF THOSE DELINQUENCY REGULATIONS
IS ILLEGAL.  GUTKNECHT DOWS NOT HAVE SUCH A BROAD SWEEP. 

IN GUTKNECHT, THE REGISTRANT WAS DECLARED A DELINQUENT FOR FAILING
TO RETAIN HIS REGISTRATION AND CLASSIFICATION PAPERS IN HIS POSSESSION
AT ALL TIMES.  HE HAD SURRENDERED THESE PAPERS IN AN ACT OF PROTEST
AGAINST THE VIETNAM CONFLICT.  AS A CONSEQUENCE OF THE DELINQUENCY
DECLARATION, HE WAS RUSHED--INDEED IT MIGHT BE SAID RAILROADED--TO
INDUCTION.  THE ENTIRE PROCESS LASTED LESS THAN TWO MONTHS, AND
GUTKNECHT WAS ISSUED AN INDUCTION ORDER ON THE DAY AFTER CHRISTMAS,
ONLY SIX DAYS AFTER HE HAD BEEN DECLARED A DELINQUENT.  HE WAS DEPRIVED
OF HIS STANDING IN THE ORDER OF CALL AND WAS TRULY "ACCELERATED"  IN
THAT HE WAS ORDERED TO INDUCTION PRIOR TO THE DATE ON WHICH HE WOULD
HAVE BEEN CALLED IF TREATED IN THE NORMAL MANNER.  GUTKNECHT, IN
ESSENCE, WAS CAUGHT UP IN THE TIDE OF PUNITIVE ACTIONS BY THE SELECTIVE
SERVICE SYSTEM IN THE LATE 1960'S AGAINST THOSE WHO WERE THOUGHT TO BE
EVADING MILITARY SERVICE BECAUSE OF OPPOSITION TO THE VIETNAM
CONFLICT.     THE COURT'S OPINION IN GUTKNECHT REPEATEDLY REFERS TO
THIS DELIBERATELY PUNITIVE ATTITUDE OF THE SERVICE AND ITS USE OF THE
THEN PREVAILING DELINQUENCY REGULATIONS AS A MEANS, SHORT OF CRIMINAL
PROSECUTION, FOR DEALING WITH SUCH PERSONS.  SEE, I.G., 396 U.S., AT
306 - 308.  BUT I DO NOT READ GUTKNECHT AS OVERTURNING THE FORMER
DELINQUENCY REGULATIONS IN ALL CIRCUMSTANCES, OR AS DEPRIVING BOARDS OF
A REASONABLE AND EFFECTIVE ALTERNATIVE PROCEDURE FOR DEALING WITH
RECALCITRANT REGISTRANTS WHO PLAINLY WERE SEEKING TO AVOID MILITARY
SERVICE.  IF THE STATED RATIONALE OF THE HOLDING IN GUTKNECHT IS
ACCEPTED, THAT CASE INVALIDATED THOSE REGULATIONS ONLY INSOFAR AS THEY
WERE APPLIED PUNITIVELY TO ADVANCE THE DATE OF A REGISTRANT'S INDUCTION
OR TO DEPRIVE HIM OF PROCEDURAL RIGHTS THAT HE HAD NOT WAIVED.  SEE
UNITED STATES V. DOBIE, 444 F.2D 417 (CA4 1971).  THE REASONS RELIED
UPON BY THE COURT IN GUTKNECHT AND IN THE CONCURRING OPINION OF MR.
JUSTICE STEWART, 396 U.S., AT 314, ARE INCOMPATIBLE WITH A PER SE RULE
PROSCRIBING ALL BOARD AUTHORITY TO ORDER AN EVASIVE REGISTRANT TO
REPORT FOR INDUCTION.  THUS, IN MY VIEW UNITED STATES V. FOX, 454 F.2D
593 (CA9 1971), ON WHICH DAVIS RELIES, WAS INCORRECTLY DECIDED. 

IN THE INSTANT CASE IT IS UNDISPUTED THAT DAVIS WAS NOT, AS A RESULT
OF BEING DECLARED DELINQUENT, ORDERED TO REPORT FOR INDUCTION AT A
POINT IN TIME PRIOR TO THE NORMAL ORDER OF HIS CALL.  INDEED, DUE TO
THE BOARD'S PATIENT EFFORTS TO DEAL WITH DAVIS' REPEATED ATTEMPTS TO
OBSTRUCT THE INDUCTION PROCESS, DAVIS WAS ORDERED TO REPORT FOR
INDUCTION SOME SEVEN MONTHS LATER THAN WOULD HAVE BEEN THE CASE IF THE
PROCESS HAD BEEN ALLOWED TO FUNCTION NORMALLY.  THERE IS NO HINT OF
VINDICTIVENESS OR OF AN ATTEMPT TO PUNISH DAVIS. 

THE ONLY IMPACT ON DAVIS OF BEING DECLARED DELINQUENT, OTHER THAN A
DELAY IN THE ISSUANCE OF AN ORDER TO REPORT FOR INDUCTION, WAS THAT THE
DECLARATION OF DELINQUENCY PERMITTED THE BOARD UNDER THEN PREVAILING
REGULATIONS TO ISSUE AN INDUCTION ORDER IN THE ABSENCE OF A PRE
INDUCTION PHYSICAL EXAMINATION AND OF THE RESULTING FORM LETTER
NOTIFYING DAVIS OF HIS ACCEPTABILITY FOR SERVICE.  /2/  DAVIS ATTEMPTS
TO PORTRAY THESE PRECONDITIONS ON INDUCTION AS SIGNIFICANT PROCEDURAL
RIGHTS OF WHICH HE WAS UNFAIRLY DEPRIVED BY THE BOARD.  THE ARGUMENT IS
FRIVOLOUS.  DAVIS FRUSTRATED EVERY EFFORT OF THE BOARD OVER A PERIOD OF
MORE THAN TWO YEARS TO ACCORD HIM THE RIGHT TO A PHYSICAL EXAMINATION. 
THUS HE WAIVED THE PROCEDURAL RIGHTS ON WHICH HE NOW SEEKS TO RELY. 
MOREOVER, HE WOULD HAVE RECEIVED SUCH AN EXAMINATION IN ANY EVENT IF HE
HAD REPORTED FOR INDUCTION.  AND THE FORM NOTIFYING A REGISTRANT OF
ACCEPTABILITY FOR SERVICE IS HARDLY A MATTER OF MAJOR MOMENT,
PARTICULARLY TO ONE WHO HAD LONG BEEN ON NOTICE OF THE PENDENCY OF AN
INDUCTION ORDER. 

ON THE RECORD IN THIS CASE, NO ONE COULD SERIOUSLY CONTEND THAT
DAVIS WAS THE VICTIM OF PUNITIVE ACTION OR THAT HE WAS NOT TREATED WITH
TOLERANCE AND FORBEARANCE.  IN MY VIEW, THE COURT IN GUTKNECHT COULD
HARDLY HAVE INTENDED TO INVALIDATE AN INDUCTION ORDER IN SUCH
CIRCUMSTANCES. 

I WOULD AFFIRM THE JUDGMENT. 

/1/  GUTKNECHT CONCERNED PRIMARILY 32 CFR 1642.13 (1969), NOW
SUPERSEDED, WHICH ASSIGNED FIRST PRIORITY IN THE ORDER OF INDUCTION TO
DELINQUENTS.  THAT REGULATION IS NOT AT ISSUE HERE. 

/2/  UNDER 32 CFR 1631.7 (1967), WHICH HAS BEEN WITHDRAWN, THE BOARD
COULD ISSUE INDUCTION ORDERS TO THOSE CLASSIFIED I-A OR I-A-O WHO HAD
BEEN (I) FOUND ACCEPTABLE FOR SERVICE AND (II) MAILED A STATEMENT OF
ACCEPTABILITY AT LEAST 21 DAYS BEFORE THE DATE FIXED FOR INDUCTION,
PROVIDED:  "THAT A REGISTRANT CLASSIFIED IN CLASS I-A OR CLASS I-A-O
WHO IS A DELINQUENT MAY BE SELECTED AND ORDERED TO REPORT FOR INDUCTION
. . . NOTWITHSTANDING THE FACT THAT HE HAS NOT BEEN FOUND ACCEPTABLE
FOR SERVICE . . . AND HAS NOT BEEN MAILED A STATEMENT OF ACCEPTABILITY
. . . ."  DAVIS RECEIVED HIS INDUCTION NOTICE UNDER THIS REGULATION. 
DAVIS MAINTAINS THAT GUTKNECHT INVALIDATED THE ABOVE PROVISO CLAUSE,
THUS DEPRIVING THE BOARD OF THE POWER TO INDUCT HIM IN THE ABSENCE OF A
FINDING OF ACCEPTABILITY (I.E., A PRE-INDUCTION PHYSICAL) AND A
STATEMENT OF ACCEPTABILITY.  BUT, AS NOTED, GUTKNECHT DEALT WITH
PUNITIVE TREATMENT OF DELINQUENTS, NOT ALL TREATMENT OF SUCH
REGISTRANTS.  MOREOVER, THE ABOVE REGULATION WAS NOT AT ISSUE IN
GUTKNECHT. 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE COURT TODAY HOLDS, WITH A MINIMUM OF DISCUSSION, THAT
PETITIONER, IN A PROCEEDING UNDER 28 U.S.C. 2255, MAY RAISE HIS CLAIM
THAT HIS INDUCTION INTO THE ARMED FORCES WAS ACCELERATED CONTRARY TO
THE PRINCIPLES OF GUTKNECHT V. UNITED STATES, 396 U.S. 295 (1970).  THE
COURT REACHES THIS RESULT DESPITE THE FACT THAT A UNITED STATES
DISTRICT COURT AND THE COURT OF APPEALS FOR THE NINTH CIRCUIT
PREVIOUSLY CONSIDERED THIS CONTENTION IN LIGHT OF GUTKNECHT AND
CONCLUDED THAT PETITIONER'S INDUCTION HAD NOT IN FACT BEEN
ACCELERATED.  AS A JUSTIFICATION FOR THE DECISION THIS COURT SUGGESTS
THAT A 2255 MOTION IS BOTH PERMISSIBLE AND APPROPRIATE BECAUSE A PANEL
OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT HAS RENDERED A SUBSEQUENT
DECISION WHICH ADOPTS A NEW LEGAL TEST FOR DETERMINING WHETHER
ACCELERATION HAS OCCURRED AND WHICH, IF APPLIED TO PETITIONER, WOULD
PROBABLY CHANGE THE OUTCOME OF HIS CASE.  SINCE I BELIEVE THE COURT'S
DECISION IS JUSTIFIED NEITHER BY THE LANGUAGE OF 2255 ITSELF NOR BY ANY
PRIOR CASE DECIDED BY THIS COURT, AND SINCE I BELIEVE THE POTENTIAL
CONSEQUENCES OF THE DECISION ARE HARMFUL TO THE ADMINISTRATION OF
JUSTICE, I DISSENT. 

        I 

THE COURT'S CONCLUSION, DISCUSSED INFRA, THAT CLAIMS SUCH AS
PETITIONER'S CAN BE RAISED ON A 2255 MOTION, IS ACTUALLY UNNECESSARY
FOR THE DISPOSITION OF THIS CASE.  THE DECISIONS OF THE DISTRICT COURT
AND THE COURT OF APPEALS RESTED ENTIRELY ON APPLICATION OF A "LAW OF
THE CASE"  THEORY, A POSITION THAT THE GOVERNMENT NOW DISAVOWS AND THAT
THE COURT DISPOSES OF IN A SINGLE PARAGRAPH.  THE PETITIONER IN HIS
PETITION FOR CERTIORARI AND IN HIS BRIEF ON THE MERITS PRINCIPALLY
ADDRESSED THAT ISSUE AND HIS SOLE REBUTTAL OF THE GOVERNMENT'S
CONTENTION THAT NONCONSTITUTIONAL ATTACKS ON JUDGMENTS OF CONVICTION
ARE NOT COGNIZABLE IN 2255 PROCEEDINGS IS CONTAINED IN HIS REPLY BRIEF
WHERE HE DEVOTES ONE PARAGRAPH TO AUGUING THAT HIS CLAIM IS
CONSTITUTIONAL.  THUS THE COURT REACHES OUT TO DECIDE A HIGHLY
IMPORTANT ISSUE WITHOUT THE BENEFIT OF LOWER COURT ATTENTION TO THE
QUESTION, WITHOUT FULL BRIEFING AND, IN MY VIEW, WITHOUT FULL
EXAMINATION OF THE ISSUES INVOLVED.  IT WOULD SEEM PREFERABLE TO REMAND
THIS CASE, AS THE COURT DOES ANYWAY, WITHOUT DECIDING THIS ISSUE,
ALLOWING FURTHER CONSIDERATION OF THE QUESTION BELOW AND LEAVING OUR
VENTURE INTO THIS AREA FOR A MORE APPROPRIATE OCCASION.  SINCE THE
COURT DECLINES TO DO SO, HOWEVER, I WILL ALSO ADDRESS THE BROADER
QUESTION TO WHICH THE COURT PROCEEDS. 

        II 

THE FACTS OF THIS CASE ARE SET OUT IN DETAIL IN THE COURT'S
OPINION.  I REVIEW THEM HERE BRIEFLY ONLY TO EMPHASIZE THE EXTENT OF
BOTH ADMINISTRATIVE AND JUDICIAL CONSIDERATION WHICH PETITIONER HAS
RECEIVED.  A MERE RECOUNTING OF THE FACTS DISPELS THE NOTION THAT THERE
ARE ANY EQUITIES WHATEVER IN SUPPORT OF PETITIONER'S CLAIM FOR RELIEF. 

PETITIONER'S DIFFICULTIES WITH THE SELECTIVE SERVICE SYSTEM BEGAN IN
FEGRUARY OF 1965 WHEN HE WAS CLASSIFIED I-A BY HIS LOCAL DRAFT BOARD. 
AT THAT TIME HE WAS ORDERED TO REPORT FOR A PRE-INDUCTION PHYSICAL
EXAMINATION, BUT DID NOT APPEAR ON TEH SPECIFIED DATE.  THE BOARD THEN
ATTEMPTED TO SCHEDULE ANOTHER PHYSICAL BUT WAS FRUSTRATED BY
PETITIONER'S FAILURE TO ADVISE THE BOARD OF HIS WHEREABOUTS.  AT THIS
POINT THE BOARD WARNED PETITIONER THAT HE WAS IN DANGER OF BEING
DECLARED A DELINQUENT, BUT THIS WARNING WAS ALSO RETURNED WITH THE
NOTATION "ADDRESSEE UNKNOWN." 

THE BOARD MADE ONE MORE UNSUCCESSFUL ATTEMPT TO COMMUNICATE WITH
PETITIONER AND THEN DECLARED HIM A DELINQUENT ACCORDING TO THE
REGULATIONS THEN IN EFFECT.  /1/  AFTER A BRIEF INTERVAL THE BOARD THEN
MAILED PETITIONER, NOT A THIRD NOTICE TO REPORT FOR A PHYSICAL
EXAMINATION, BUT RATHER A NOTICE TO REPORT FOR INDUCTION.  THIS ORDER
HAVING BEEN RETURNED STAMPED "ADDRESSEE UNKNOWN," THE BOARD FOLLOWED UP
BY SENDING PETITIONER A SECOND NOTICE TO REPORT FOR INDUCTION WHICH HE
APPARENTLY RECEIVED.  HE DID NOT REPORT, HOWEVER, AND WAS THEN
PROSECUTED FOR THIS REFUSAL. 

ALL PARTIES TO THIS CASE CONCEDE THAT SELECTIVE SERVICE REGISTRANTS
WHO ARE NOT DECLARED DELINQUENTS ARE NOT MAILED ORDERS OF INDUCTION
BEFORE THEY HAVE TAKEN A PHYSICAL EXAMINATION.  WITHOUT THE DELINQUENCY
CLASSIFICATION, WHICH ALLOWED THE BOARD TO ISSUE AN INDUCTION ORDER
WITHOUT HAVING GIVEN A PHYSICAL EXAMINATION, THE BOARD WOULD HAVE BEEN
FACED WITH ONE OF TWO ALTERNATIVES.  IT COULD HAVE PROSECUTED THE
PETITIONER FOR FAILURE TO TAKE THE PHYSICAL EXAMINATION OR,
ALTERNATIVELY, IT COULD HAVE CONTINUED THE OBVIOUSLY FUTILE MAILING OF
ADDITIONAL NOTICES CONCERNING THE PHYSICAL.  THE DELINQUENCY PROCDURE
ENABLED THE BOARD TO BYPASS THOSE TWO UNDESIRABLE OPTIONS, AND, IN
EFFECT, PROVIDED FOR A TEMPORARY WAIVER OF THE EXAMINATION UNTIL THE
TIME STATED IN THE INDUCTION ORDER.  IT SHOULD BE NOTED THAT THIS
PROCEDURE DOES NOT ALLOW THE BOARD TO INDUCT ANYONE WITHOUT A PHYSICAL
EXAMINATION; RATHER IT SIMPLY ALLOWS THE BOARD TO CALL PERSONS FOR
INDUCTION PRIOR TO THE TIME AN EXAMINATION IS GIVEN.  /2/ 

HAVING BEEN CONVICTED IN THE DISTRICT COURT, PETITIONER TOOK A
DIRECT APPEAL TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT.  WHILE THE
APPEAL WAS PENDING IN THAT COURT, HOWEVER, THIS COURT DECIDED
GUTKNECHT, AND THE COURT OF APPEALS THEN REMANDED THE CASE TO THE
DISTRICT COURT FOR FURTHER CONSIDERATION IN LIGHT OF OUR DECISION.  ON
REMAND, THE DISTRICT COURT DECIDED THAT GUTKNECHT DID NOT APPLY BECAUSE
PETITIONER'S INDUCTION HAD NOT IN FACT BEN ACCELERATED.  /3/  THE COURT
ALSO FOUND THAT "(DEFENDANT'S SUBSTANTIAL RIGHTS WERE NOT PREJUDICED BY
THE LOCAL BOARD'S ORDERING HIM TO REPORT FOR INDUCTION WITHOUT FIRST
GIVING HIM A PHYSICAL EXAMINATION AND SENDING HIM A NOTICE OF
ACCEPTABILITY,"  /4/  BECAUSE "(THE FAILURE TO GIVE SUCH AN EXAMINATION
AND SUCH NOTICE OF ACCEPTABILITY WAS CAUSED BY DEFENDANT'S OWN FAILURE
TO REPORT FOR PHYSICAL EXAMINATION ON OCTOBER 8, 1965, AS ORDERED." 
/5/  THE COURT OF APPEALS AGREED THAT GUTKNECHT DID NOT CONTROL THIS
CASE AND AFFIRMED.  /6/  WE DENIED CERTIORARI.  /7/ 

ALTHOUGH ONE MIGHT HAVE SUPPOSED THE PROCEEDINGS TO BE CLOSED AT
THIS POINT, OUR DENIAL OF CERTIORARI MARKED ONLY THE END OF PHASE ONE. 
FOR PETITIONER, HAVING FAILED ON HIS DIRECT ATTACK, THEN SOUGHT RELIEF
UNDER 28 U.S.C. 2255, PRESENTING THE SAME CLAIMS OF ACCELERATION WHICH
HAD PREVIOUSLY BEEN REJECTED.  THE PRINCIPAL BASIS FOR PETITIONER'S
MOTION WAS THAT THE LAW OF THE NINTH CIRCUIT, UNFAVORABLE TO HIM AT THE
TIME OF HIS CONVICTION AND APPEAL, HAD SUBSEQUENTLY BEEN CHANGED IN
UNITED STATES V. FOX, 454 F.2D 593 (1971).  THE DISTRICT COURT DENIED
RELIEF WITHOUT COMMENT, AND THE COURT OF APPEALS AGAIN AFFIRMED.  /8/
STATING THAT "(THE DECISION ON THE DIRECT APPEAL IS THE LAW OF THE
CASE,"  /9/  THAT COURT ALSO NOTED SPECIFICALLY "THAT FOX DOES NOT EVEN
SUGGEST OVERRULING DAVIS,"  /10/  AND FURTHER THAT THE "NEW LAW, OR
CHANGE IN LAW, RULE IS NOT APPLIED IN THIS CIRCUIT UNDER CIRCUMSTANCES
SUCH AS HERE PRESENTED.  ODOM V. UNITED STATES, SUPRA."  /11/  AGAIN
ONE WOULD SUPPOSE THAT THE DISPUTE HAD REACHED ITS END, BUT THIS COURT
TODAY DECREES OTHERWISE, REMANDING IT FOR YET MORE CONSIDERATION BY THE
COURTS BELOW. 

III 

FOR REASONS THAT I FRANKLY DO NOT UNDERSTAND, THE COURT SEEMS TO
BELIEVE THAT THE QUESTION OF WHETHER CLAIMS SUCH AS PETITIONER'S MAY BE
RAISED IN A MOTION UNDER 2255 IS EITHER LARGELY SETTLED BY 2255 ITSELF
AND BY EARLIER DECISIONS OF THIS COURT OR, PERHAPS, IS TOO
INCONSEQUENTIAL TO REQUIRE EXTENDED TREATMENT.  NEITHER PREMISE IS
SOUND.  BOTH THE LANGUAGE OF 2255 AND THE CASE LAW OF THIS COURT
SUGGEST THAT THE ISSUE IS VERY MUCH IN DOUBT, AND THE POTENTIAL
CONSEQUENCES OF THE DECISION SUGGEST THAT THE MATTER CALLS FOR SERIOUS
AND CAREFUL CONSIDERATION. 

IN DECIDING WHETHER CLAIMS OF THIS TYPE MAY BE RAISED IN A 2255
MOTION, THE LOGICAL STARTING PLACE IS THE STATUTE ITSELF.  THE COURT'S
OPINION, HOWEVER, GIVES THE STATUTE ONLY A PASSING NOD, APPARENTLY
BELIEVING THAT AMBIGUITY IS BEST RESOLVED BY IGNORING THE SOURCE FROM
WHICH IT ARISES.  I BELIEVE THE STATUTE AND THE COURT'S TREATMENT OF IT
REQUIRE A CLOSER LOOK. 

THE COURT BEGINS ITS DISCUSSION OF THE STATUTE BY STATING:  "AT THE
OUTSET, WE NOTE THAT THE GOVERNMENT'S POSITION FINDS SCANT SUPPORT IN
THE TEXT OF 2255, WHICH PERMITS A FEDERAL PRISONER TO ASSERT A CLAIM
THAT HIS CONFINEMENT IS 'IN VIOLATION OF THE CONSTITUTION OR LAWS OF
THE UNITED STATES.'"  /12/  (EMPHASIS IN COURT'S OPINION.)  THE
LANGUAGE QUOTED BY THE COURT IS TAKEN FROM THE FIRST PARAGRAPH OF 2255
WHICH READS: 

     "A PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED
BY

  ACT OF CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND

  THAT THE SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR

  LAWS OF THE UNITED STATES, OR THAT THE COURT WAS WITHOUT

  JURISDICTION TO IMPOSE SUCH SENTENCE, OR THAT THE SENTENCE WAS IN

  EXCESS OF THE MAXIMUM AUTHORIZED BY LAW, OR IS OTHERWISE SUBJECT

  TO COLLATERAL ATTACK, MAY MOVE THE COURT WHICH IMPOSED THE

  SENTENCE TO VACATE, SET ASIDE OR CORRECT THE SENTENCE." 

THAT PARAGRAPH, HOWEVER, DOES NOT SPEAK OF AN ILLEGAL CONVICTION, BUT
RATHER OF ILLEGAL SENTENCES.  FURTHERMORE, THE PARAGRAPH IS CONCERNED
ONLY WITH MOTIONS FOR RELIEF, NOT WITH THE COURT'S POWER TO GRANT
RELIEF.  THE POWER TO GRANT RELIEF IS INSTEAD GOVERNED BY THE MORE
SPECIFIC PROVISIONS OF PARAGRAPH THREE OF THE STATUTE.     THE LANGUAGE
OF PARAGRAPH THREE DIFFERS QUITE STRIKINGLY FROM THE LANGUAGE QUOTED
ABOVE.  AFTER PROVIDING FOR NOTICE AND A HEARING IN APPROPRIATE CASES,
THE PARAGRAPH CONTINUES: 

"IF THE COURT FINDS THAT THE JUDGMENT WAS RENDERED WITHOUT
JURISDICTION, OR THAT THE SENTENCE IMPOSED WAS NOT AUTHORIZED BY LAW OR
OTHERWISE OPEN TO COLLATERAL ATTACK, OR THAT THERE HAS BEEN SUCH A
DENIAL OR INFRINGEMENT OF THE CONSTITUTIONAL RIGHTS OF THE PRISONER AS
TO RENDER THE JUDGMENT VULNERABLE TO COLLATERAL ATTACK, THE COURT SHALL
VACATE AND SET THE JUDGMENT ASIDE AND SHALL DISCHARGE THE PRISONER OR
RESENTENCE HIM OR GRANT A NEW TRIAL OR CORRECT THE SENTENCE AS MAY
APPEAR APPROPRIATE."  THIS LANGUAGE CERTAINLY MAKES LESS CLEAR THE
INTENDED SCOPE OF PARAGRAPH ONE, SINCE, CONTRARY TO THE EMPHASIS ON
"SENTENCE" IN THE EARLIER PARAGRAPH, THE PROVISIONS OF PARAGRAPH THREE
MENTION "SENTENCE" WHICH MAY BE SET ASIDE ONLY TWICE, AND THEN IN
CONNECTION WITH THOSE "NOT AUTHORIZED BY LAW OR OTHERWISE OPEN TO
COLLATERAL ATTACK . . . ."  /13/  MORE IMPORTANTLY, THE PARAGRAPH MAKES
NO MENTION OF JUDGMENTS RENDERED IN VIOLATION OF THE LAWS OF THE UNITED
STATES.  RATHER THE PARAGRAPH PERMITS RELIEF ONLY WHERE "THERE HAS BEEN
SUCH A DENIAL OR INFRINGEMENT OF THE CONSTITUTIONAL RIGHTS OF THE
PRISONER AS TO RENDER THE JUDGMENT VULNERABLE TO COLLATERAL ATTACK . .
. ."  THUS A DISTRICT COURT MAY GRANT RELIEF UNDER THIS SECTION ONLY
WHERE (1) THE JUDGMENT RENDERED WAS WITHOUT JURISDICTION; (2) THE
SENTENCE WAS NOT AUTHORIZED BY LAW OR IS OTHERWISE OPEN TO COLLATERAL
ATTACK; OR (3) THERE HAS BEEN SUCH A DENIAL OF CONSTITUTIONAL RIGHTS AS
TO RENDER THE JUDGMENT VULNERABLE TO COLLATERAL ATTACK.  PETITIONER'S
CASE DOES NOT EVEN AUGUABLY MEET ANY ONE OF THESE TESTS:  THE DISTRICT
COURT CLEARLY HAD JURISDICTION TO RENDER A JUDGMENT OF CONVICTION; THE
SENTENCE WAS CONCEDEDLY WITHIN THE LIMITS AUTHORIZED BY LAW AND NOT
OTHERWISE VULNERABLE; AND THE COURT APPARENTLY ACCEPTS THE FACT THAT
PETITIONER HAS NOT PRESENTED A CONSTITUTIONAL CLAIM AGAINST THE
JUDGMENT.  NOTHING IN THE MORE GENERALIZED REFERENCE TO "LAWS OF THE
UNITED STATES" IN THE FIRST PARAGRAPH OF 2255, THEREFORE, CAN REDEEM
PETITIONER'S COMPLETE FAILURE TO BRING HIMSELF WITHIN THE OPERATIVE
LANGUAGE OF THE THIRD PARAGRAPH.  /14/ 

THE COURT, HOWEVER, STRONGLY SUGGESTS THAT ITS OPINION COULD REST
UPON THE PROVISION OF PARAGRAPH THREE PROVIDING RELIEF FOR "SENTENCES)
. . . OTHERWISE OPEN TO COLLATERAL ATTACK."  THIS SUGGESTION ONLY
COMPOUNDS THE CONFUSION.  TO BEGIN WITH, IT SEEMS ODD THAT THE COURT
CHOOSES TO BYPASS THE LANGUAGE OF THAT SAME SENTENCE DEALING WITH
SENTENCES (RATHER THAN JUDGMENTS) "NOT AUTHORIZED BY LAW" SINCE THAT
LANGUAGE FAR MORE CLOSELY PARALLELS THE LANGUAGE FROM THE FIRST
PARAGRAPH CITED BY THE COURT.  BUT, IN ANY EVENT, READING WORDS
"OTHERWISE OPEN TO COLLATERAL ATTACK" AS SIMPLY A CATCH-ALL PHRASE,
INCLUDING ANY RECOGNIZABLE GROUND FOR UPSETTING CONVICTIONS ON DIRECT
APPEAL MAKES IT DIFFICULT TO SEE WHY CONGRESS THEN BOTHERED TO INCLUDE
THE SEPARATE PROVISION ALLOWING RELIEF WHEN "THERE HAS BEEN SUCH A
DENIAL OR INFRINGEMENT OF THE CONSTITUTIONAL RIGHTS OF THE PRISONER AS
TO RENDER THE JUDGMENT VULNERABLE TO COLLATERAL ATTACK . . . ."  THE
COURT COULD NOT REASONABLY ARGUE THAT THIS PROVISION IS INTENDED TO
GIVE ADDITIONAL PROTECTION TO CONSTITUTIONAL RIGHTS BECAUSE THE COURT
PURPORTS TO FIND NO DISTINCTION IN THE STATUTE BETWEEN CONSTITUTIONAL
AND NONCONSTITUTIONAL ATTACKS ON JUDGMENTS OF CONVICTION. 

BUT ASSUMING FOR THE MOMENT THAT THE COURT'S APPROACH IS CORRECT, I
FIND A SECOND OBSTACLE TO THIS DECISION IN THE DEFINITION, OR LACK OF
DEFINITION, OF THE WORD "LAWS."  FOR THOUGH THE COURT SEEMS TO ACCEPT
THAT PETITIONER HAS STATED A RECOGNIZABLE CLAIM THAT HIS SENTENCE WAS
SOMEHOW IMPOSED IN VIOLATION OF THE LAWS OF THE UNITED STATES, THE
COURT ONLY BRIEFLY MENTIONS WHAT LAW THE SENTENCE IS THOUGHT TO BE IN
VIOLATION OF.  CERTAINLY PETITIONER CANNOT CONTEND THAT HIS SENTENCE
UNDER 50 U.S.C. APP. 462(A) FOR REFUSING TO REPORT FOR INDUCTION IS IN
VIOLATION OF THAT SECTION.  NOR DOES HE POINT TO ANY OTHER STATUTORY
PROVISION WHICH PROHIBITS HIS INCARCERATION FOR THAT OFFENSE. 
THEREFORE THE BASIS FOR THE CLAIM, AS THE COURT SEEMS TO BELIEVE, LIES
SOMEWHERE IN THE HOLDINGS OF THIS COURT IN GUTKNECHT AND OF THE COURT
OF APPEALS FOR THE NINTH CIRCUIT IN FOX.  THE INCLUSION OF EITHER OF
THESE DECISIONS IN THE CATEGORY OF "LAWS OF THE UNITED STATES"  MERITS
SOME ADDITIONAL ATTENTION. 

THE TERM "LAWS OF THE UNITED STATES" WAS INCLUDED IN 2255 PRESUMABLY
TO CONTINUE ITS TRADITIONAL PLACE IN FEDERAL HABEAS CORPUS STATUTES. 
/15/ THE HABEAS CORPUS ACT OF 1867, C. 28, 14 STAT. 385, GAVE FEDERAL
COURTS THE POWER TO GRANT WRITS OF HABEAS CORPUS IN ALL CASES WHERE ANY
PERSON MAY BE RESTRAINED OF HIS OR HER LIBERTY "IN VIOLATION OF THE
CONSTITUTION, OR OF ANY TREATY OR LAW OF THE UNITED STATES . . . ." 
THIS LANGUAGE WAS CARRIED FORWARD IN REV. STAT. 753 AND NOW IN 28
U.S.C. 2241 (C)(3) AND 2254 WHERE THE WORD "LAW" HAS BEEN CHANGED TO
"LAWS."  THE SAME PHRASING HAS NOW BEEN INCORPORATED INTO 2255.  BUT
THE TERM'S LONGEVITY HAS NOT BROUGHT WITH IT A CORRESPONDING JUDICIAL
ELUCIDATION.  LIKE MANY OTHER ISSUES IN THE FIELD OF HABEAS CORPUS, THE
QUESTION SEEMS TO HAVE BEEN LEFT FOR DECISION ON A CASE-BY-CASE BASIS. 

CERTAINLY A CREDITABLE ARGUMENT COULD BE MADE THAT THE TERM "LAWS"
APPLIES ONLY TO FEDERAL STATUTES, NOT TO INDIVIDUAL DECISIONS OF THE
FEDERAL COURTS.  IN 18472, FOR EXAMPLE, ONLY 25 YEARS BEFORE THE HABEAS
CORPUS ACT WAS PASSED, THIS COURT STATED:  "IN THE ORDINARY USE OF
LANGUAGE IT WILL HARDLY BE CONTENDED THAT THE DECISIONS OF COURTS
CONSTITUTE LAWS."  SWIFT V. TYSON, 16 PET. 1, 18.  /16/  BUT EVEN IF
SOME ALLOWANCE FOR JUDICIAL LAWMAKING IS MADE, THE QUESTION IN THIS
CASE IS NOT SETTLED.  FOR, IF THE LAW BE GUTKNECHT, THEN THE COURT'S
NEW LAW" ARGUMENT IMMEDIATELY DISAPPEARS.  PETITIONER HAD A FULL
OPPORTUNITY TO ARGUE THE APPLICABILITY OF GUTKNECHT ON REMAND FROM HIS
FIRST APPEAL, AND BOTH THE DISTRICT COURT AND COURT OF APPEALS FOUND
THAT IT WAS NOT CONTROLLING.  SINCE THAT TIME NO DECISION OF THIS COURT
HAS MODIFIED GUTKNECHT IN ANY WAY WHICH WOULD NOW BRING PETITIONER
WITHIN ITS SCOPE.  THUS THE REAL FOCUS OF PETITIONER'S ARGUMENT MUST BE
THAT FOX IS THE GOVERNING LAW.  BUT IN THAT REGARD, I CANNOT SEE WHY A
DECISION BY A SINGLE PANEL OF THE COURT OF APPEALS FOR THE NINTH
CIRCUIT SHOULD BE CONSIDERED A "LAW" OF THE UNITED STATES.  IN FACT THE
COURT OF APPEALS ITSELF STATED THAT ITS DECISION IN FOX HAD NOT
OVERRULED DAVIS, POINTING OUT THAT AN EN BANC DECISION OF THE COURT OF
APPEALS WOULD BE NECESSARY FOR SUCH A RESULT.  THUS THE COURT TODAY
CATEGORIZES AS A "LAW OF THE UNITED STATES" A DECISION WHICH IS STILL
OPEN TO QUESTION WITHIN THE COURT OF APPEALS' OWN JURISDICTION. 

THE COURT GIVES NO INDICATION OF WHERE THIS LOOSE PROCESS OF
DEFINITION WILL END.  IT WOULD CERTAINLY BE SURPRISING IF A DECISION OF
THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, FOR EXAMPLE, WERE
SUFFICIENT TO GIVE PRISONERS IN THE NINTH CIRCUIT GROUNDS FOR A 2255
MOTION, BUT IT IS NOT CLEAR TO ME WHY A DECISION OF THE FOURTH CIRCUIT
IS ANY LESS A LAW OF THE UNITED STATES THAN A DECISION OF THE NINTH
CIRCUIT.  CONCEDEDLY, IT NEED NOT BE CONSIDERED BINDING ON THE NINTH
CIRCUIT, BUT THAT IS NOT THE CONCERN UNDER 2255.  NOR IS IT OBVIOUS TO
ME WHAT THE COURT WOULD REQUIRE A COURT OF APPEALS TO DO WHEN
INTRACIRCUIT CONFLICTS ARISE.  THE DECISION TODAY WOULD SEEM TO COMPEL
THE COURT TO GIVE A DEFENDANT ALREADY CONVICTED ACCORDING TO ONE
STATUTORY INTERPRETATION THE BENEFIT OF ANY MORE LIBERAL INTERPRETATION
WHICH MIGHT EMERGE.  THIS ERRATIC PROCESS OF INTERPRETATION FINDS NO
WARRANT IN 2255. 

        IV 

THE COURT'S LACK OF ATTENTION TO THE STATUTORY LANGUAGE IN THIS CASE
IS MORE THAN MATCHED BY THE SPARSITY OF THE CASE LAW IT CITES. 
ALTHOUGH THE COURT SEEMS TO ACCEPT WITHOUT QUESTION THAT BOTH RELIEF
UNDER 2255 AND HABEAS CORPUS RELIEF HAVE LONG BEEN AVAILABLE TO
PRISONERS MAKING NONCONSTITUTIONAL ATTACKS ON JUDGMENTS OF CONVICTION,
THE COURT CITES NOT A SINGLE CASE FROM THIS COURT THAT SO HOLDS.  /17/
CERTAINLY NEITHER SANDERS V. UNITED STATES, 373 U.S. 1 (1963), NOR
KAUFMAN V. UNITED STATES, 394 U.S. 217 (1969), THE TWO MOST SIGNIFICANT
2255 DECISIONS IN RECENT YEARS, IS CONTROLLING ON THE IMPORTANT ISSUE
PRESENTED HERE, FOR BOTH DECISIONS INVOLVED COMPLETELY DIFFERENT
FACTUAL SITUATIONS AND CONSIDERATIONS.  /18/  HILL V. UNITED STATES,
368 U.S. 424 (1962), A THIRD IMPORTANT CASE UNDER 2255 AND ONE CITED BY
THE COURT IN ITS OPINION, WOULD SEEM TO CUT AGAINST THE COURT'S
POSITION.  IN HILL THE COURT HELD THAT A FAILURE TO FOLLOW THE
REQUIREMENTS OF FED. RULE CRIM. PROC. 32(A), A RULE PROMULGATED UNDER
THE AUSPICES OF A FEDERAL STATUTE, WAS NOT THE TYPE OF ERROR WHICH
COULD BE RAISED ON A 2255 MOTION.  THE COURT STATED; 

     "THE FAILURE OF A TRIAL COURT TO ASK A DEFENDANT REPRESENTED
BY

  AN ATTORNEY WHETHER HE HAS ANYTHING TO SAY BEFORE SENTENCE IS

  IMPOSED IS NOT OF ITSELF AN ERROR OF THE CHARACTER OR MAGNITUDE

  COGNIZABLE UNDER A WRIT OF HABEAS CORPUS. 

      IT IS AN ERROR WHICH IS NEITHER JURISDICTIONAL NOR

 CONSTITUTIONAL.  IT IS NOT A FUNDAMENTAL DEFECT WHICH INHERENTLY

  RESULTS IN A COMPLETE MISCARRIAGE OF JUSTICE, NOR AN OMISSION

  INCONSISTENT WITH THE RUDIMENTARY DEMANDS OF FAIR PROCEDURE.  IT

  DOES NOT PRESENT 'EXCEPTIONAL CIRCUMSTANCES WHERE THE NEED FOR

  THE REMEDY AFFORDED BY THE WRIT OF HABEAS CORPUS IS APPARENT.'" 

  368 U.S., AT 428.  (CITATIONS OMITTED.) 

THE ONLY OTHER CASE MENTIONED BY THE COURT WHICH MIGHT BE RELEVANT
TO THIS ISSUE IS SUNAL V. LARGE, 332 U.S. 174 (1947), A CASE LIKE HILL
IN WHICH THIS COURT DENIED RELIEF FOR A CLAIM WITH NO CONSTITUTIONAL
FOUNDATION.  THE COURT TODAY SUGGESTS, BY STRESS ON A NEGATIVE
PREGNANT, THAT THE DECISION TO DENY HABEAS CORPUS RELIEF IN THAT CASE
WAS GROUNDED SOLELY ON THE PETITIONER'S FAILURE TO RAISE HIS CLAIM ON
DIRECT APPEAL AND THAT IF THE ISSUE HAD BEEN PROPERLY RAISED, THE COURT
WOULD HAVE REACHED A DIFFERENT CONCLUSION.  IT IS TRUE, OF COURSE, THAT
COLLATERAL RELIEF IS NOT TO BE EMPLOYED AS A SUBSTITUTE FOR AN APPEAL,
AND SUNAL IS A LEADING CASE FOR THAT PROPOSITION.  BUT A READING OF
SUNAL WHICH RECOGNIZES ONLY THE EFFECT OF FAILURE TO APPEAL IS
UNNECESSARILY GRUDGING.  THE COURT IN HILL, FOR EXAMPLE, ALTHOUGH FACED
WITH A SITUATION IN WHICH THE NONCOMPLIANCE WITH RULE 32(A) WAS NOT
RAISED ON APPEAL, DID NOT IMPLY THAT THE ERROR COULD HAVE BEEN RAISED
IN 2255 PROCEEDINGS IF AN APPEAL HAD BEEN TAKEN.  RATHER THE COURT
STATED FLATLY:  "WE HOLD THAT THE FAILURE TO FOLLOW THE FORMAL
REQUIREMENTS OF RULE 32(A) IS NOT OF ITSELF AN ERROR THAT CAN BE RAISED
BY COLLATERAL ATTACK . . . ."  368 U.S., AT 426. 

ALTHOUGH THE SCOPE OF RELIEF IN A HABEAS CORPUS PROCEEDING REMAINS
LARGELY UNDEFINED, PROBABLY OUT OF CONCERN THAT DEFINITION WOULD
INTRODUCE UNWANTED LIMITATION, THE JUDICIAL EXPANSION OF THE FEDERAL
COURTS' HABEAS POWER HAD NOT PREVIOUSLY REACHED THE TYPE OF CLAIM
ASSERTED HERE.  CERTAINLY MR. JUSTICE FRANKFURTER'S CATALOGUE IN SUNAL,
SUPRA, AT 185 - 186 (DISSENTING OPINION), MAKES NO MENTION OF SUCH
GROUNDS.  AND THERE IS NO DEARTH OF AUTHORITY TO THE EFFECT THAT
FEDERAL HABEAS CORPUS IS NOT AVAILABLE MERELY TO CORRECT ERRORS OF
LAW.  /19/  MANY DECISIONS OF LOWER FEDERAL COURTS HAVE AT LEAST
IMPLICITLY LIMITED COLLATERAL RELIEF TO CLAIMS OF CONSTITUTIONAL
STATURE.  / 20/ 

THE LACK OF FOUNDATION FROM WHICH THE COURT NOW PROCEEDS TO FASHION
A NEW, EXPANSIVE COLLATERAL-RELIEF DOCTRINE UNFORTUNATELY SUGGESTS THAT
THE COURT IS PREPARED TO EXTEND OR RETRACT RELIEF ON THE BASIS OF
WHETHER A MAJORITY OF THE COURT BELIEVES THAT A PARTICULAR SET OF
FACTUAL CIRCUMSTANCES IS "EXCEPTIONAL" OR THAT A PARTICULAR LITIGANT
HAS RAISED AN APPEALING POINT.  THUS, THE PETITIONER IN HILL IS BARRED
FROM RAISING HIS CLAIM AT ALL IN A 2255 PROCEEDING BECAUSE FAILURE TO
COMPLY WITH AN EXPLICIT FEDERAL RULE IS "NOT OF ITSELF AN ERROR OF THE
CHARACTER OR MAGNITUDE COGNIZABLE UNDER A WRIT OF HABEAS CORPUS."  THE
PETITIONER IN SUNAL IS ALSO BARRED, DESPITE A "FAR MORE COMPELLING"
CLAIM THAN THE ONE RAISED IN HILL, SEE 368 U.S., AT 428, APPARENTLY
BECAUSE HE DID NOT RECEIVE A PREVIOUS REJECTION OF HIS CLAIM ON DIRECT
APPEAL.  BUT PETITIONER IN THIS CASE SUCCEEDS.  ACCORDING TO THE COURT,
THIS CASE IS DIFFERENT, FOR PETITIONER HAS ALREADY HAD HIS PRECISE
CLAIM DECIDED AGAINST HIM ONCE, CURIOUSLY ENOUGH A CIRCUMSTANCE
CONSIDERED FAVORABLE FOR HIM, AND BECAUSE "(THERE CAN BE NO ROOM FOR
DOUBT THAT SUCH A CIRCUMSTANCE (CONVICION FOR FAILURE TO OBEY A
POSSIBLY INVALID ORDER) 'INHERENTLY RESULTS IN A COMPLETE MISCARRIAGE
OF JUSTICE' AND 'PRESENTS) EXCEPTIONAL CIRCUMSTANCES' THAT JUSTIFY
COLLATERAL RELIEF UNDER 2255."  IT IS DIFFICULT TO SEE THAT THIS
PROCESS OF SELECTION RESTS UPON ANY REASONED DISTINCTIONS WHICH MAY BE
DERIVED FROM EITHER THE STATUTE OR THE CASES. 

        V 

THE COURT'S RATHER BRIEF DISMISSAL OF THE GOVERNMENT'S AUGUMENTS IN
THIS CASE MIGHT BE UNDERSTANDABLE WERE THE ISSUES OF LESS IMPORTANCE,
OR THE RESULT LESS LIKELY TO PRODUCE SEVERE REPERCUSSIONS.  AFTER ALL,
THE SCOPE OF 2255 RELIEF HAS BEEN UNDEFINED FOR ALMOST 25 YEARS AND IT
MIGHT BE SUPPOSED THAT CONTINUATION OF THIS STATE OF AFFAIRS WOULD
CAUSE NO UNUSUAL DIFFICULTIES.  BUT THE POTENTIAL CONSEQUENCES OF THE
COURT'S DECISION TODAY MAKE A LAISSEZ-FAIRE ATTITUDE INAPPROPRIATE. 
FOR, "(ASSUMING THAT THERE 'EXISTS,' IN AN ULTIMATE SENSE, A 'CORRECT'
DECISION OF A QUESTION OF LAW, WE CAN NEVER BE ASSURED THAT ANY
PARTICULAR TRIBUNAL HAS IN THE PAST MADE IT:  WE CAN ALWAYS CONTINUE TO
ASK WHETHER THE RIGHT RULE WAS APPLIED, WHETHER A NEW RULE SHOULD NOT
HAVE BEEN FASHIONED."  BATOR, FINALITY IN CRIMINAL LAW AND FEDERAL
HABEAS CORPUS FOR STATE PRISONERS, 76 HARV. L. REV. 441, 447 (1963). 
TWO EXAMPLES WILL SUFFICE AS ILLUSTRATIONS. 

(1) THIS COURT OCCASIONALLY, THOUGH NOT WITH GREAT FREQUENCY, IS
CALLED UPON TO RESOLVE CONFLICTS AMONG THE COURTS OF APPEALS ON
NONCONSTITUTIONAL CRIMINAL QUESTIONS.  FOR EXAMPLE, IN JANUARY OF 1974,
THE COURT DECIDED UNITED STATES V. MAZE, 414 U.S. 395, A CASE IN WHICH
WE WERE ASKED TO RESOLVE A CONFLICT AMONG THE COURTS OF APPEALS
CONCERNING THE CIRCUMSTANCES UNDER WHICH FRAUDULENT USE OF A CREDIT
CARD MIGHT VIOLATE THE FEDERAL MAIL FRAUD STATUTE.  THE COURTS OF
APPEALS FOR THE SIXTH AND TENTH CIRCUITS HAD CONSTRUED THE SCOPE OF THE
STATUTE SOMEWHAT MORE NARROWLY THAN FIVE OTHER COURTS OF APPEALS.  IN
MAZE WE APPROVED THE MINORITY APPROACH, AGREEING WITH THE SIXTH CIRCUIT
THAT THE RESPONDENT'S CONVICTION UNDER THE MAIL FRAUD STATUTE SHOULD BE
REVERSED. 

THE COURT'S DECISION TODAY SEEMS TO PROVIDE FULL OPPORTUNITY FOR ALL
DEFENDANTS CONVICTED UNDER THE MAIL FRAUD ACT IN THE CIRCUITS WHOSE
VIEW WAS NOT ACCEPTED TO RELITIGATE THOSE CONVICTIONS IN A 2255
PROCEEDING.  MOST OF THOSE CONVICTIONS HAVE RECEIVED FULL APPELLATE
REVIEW, AND MANY DEFENDANTS HAD UNSUCCESSFULLY SOUGHT CERTIORARI IN
THIS COURT.  THE DISTRICT COURTS, FACED WITH THIS INFLUX OF MOTIONS,
WILL BE FACED WITH THE DIFFICULT TASK OF SIFTING THROUGH VARIOUS
FACTUAL CLAIMS TO DETERMINE IF THE PRINCIPLES OF MAZE SHOULD BE
APPLIED.  I SUSPECT THAT THE BURDEN WILL NOT BE INCONSIDERABLE. 

(2) THE COURT OF APPEALS FOR THE NINTH CIRCUIT, IN AFFIRMING THE
DISMISSAL OF PETITIONER'S 2255 MOTION, CITED ITS OWN DECISION IN ODOM
V. UNITED STATES, 455 F.2D 159 (1972).  THAT CASE INVOLVED THE QUESTION
OF WHETHER THE PETITIONER WAS ENTITLED TO THE BENEFIT OF WADE V. UNITED
STATES, 426 F.2D 64 (1970), A CASE WHICH HAD ESTABLISHED NEW LAW ON
INSANITY FOR THE NINTH CIRCUIT.  AT THE TIME WADE WAS DECIDED THE COURT
OF APPEALS SPECIFICALLY HELD THAT THE DECISION SHOULD APPLY ONLY TO
"CONVICTIONS (WHICH) HAVE NOT BECOME FINAL AS OF THE DATE OF THIS
DECISION."  /21/  UNDER MY READING OF THE COURT'S OPINION IN THIS CASE,
HOWEVER, PETITIONER ODOM AND ANYONE ELSE WHO HAD RAISED AN INSANITY
DEFENSE IN THE NINTH CIRCUIT MAY NOW PROCEED TO FILE 2255 MOTIONS IN
THE DISTRICT COURT.  FOR DAVIS' CONVICTION WAS AS FINAL AS ODOM'S
CONVICTION, AND NO BASIS IS EVIDENT FOR SAYING THAT ONE DECISION IS
LESS A "LAW OF THE UNITED STATES" THAN THE OTHER. 

THE EFFECT WILL BE TWOFOLD.  FIRST, FEDERAL COURTS WHICH ARE ALREADY
OVERBURDENED WITH CASES WILL FIND THAT BURDEN INCREASED.  AS MR.
JUSTICE JACKSON NOTED IN BROWN V. ALLEN, 344 U.S. 443, 537 (1953)
(CONCURRING IN RESULT):  "IT MUST PREJUDICE THE OCCASIONAL MERITORIOUS
APPLICATION TO BE BURIED IN A FLOOD OF WORTHLESS ONES."  SECOND, THERE
WILL BE SUBSTANTIAL DISINCENTIVE FOR FEDERAL COURTS TO OVERTHROW
SETTLED DOCTRINES, NO MATTER HOW SALUTARY NEW ONES MIGHT SEEM. 
ALTHOUGH ENLIGHTENED JURISPRUDENCE MAY CALL FOR ADOPTING NEW POLICIES
OR CORRECTING ERRORS OF INTERPRETATION, ANY COURT CONSIDERING SUCH
CHANGES MUST BE CONSTANTLY AWARE THAT NUMEROUS FINAL CONVICTIONS WILL
THEREUPON BE PLACED IN JEOPARDY.  THE POSSIBLE, AND OFTEN UNDESERVED,
ADVANTAGE TO A PARTICULAR LITIGANT IS THUS OBTAINED AT A COST TO THE
ENTIRE JUDICIAL SYSTEM. 

THESE EXAMPLES UNFORTUNATELY MAY BE MULTIPLIED.  ADMITTEDLY, THE
COURT DOES ATTEMPT TO SET A MINIMUM THRESHOLD FOR SUCH CLAIMS,
REQUIRING "'A FUNDAMENTAL DEFECT . . . INHERENTLY RESULTING) IN A
COMPLETE MISCARRIAGE OF JUSTICE,'" AND"'EXCEPTIONAL CIRCUMSTANCES WHERE
THE NEED FOR THE REMEDY AFFORDED BY THE WRIT OF HABEAS CORPUS IS
APPARENT.'"  (ANTE, AT 346.)  THIS DICTUM, IT IS HOPED WILL PARTIALLY
OFFSET THE EFFECT OF THE HOLDING IN THIS CASE, THOUGH IF THIS
PETITIONER'S CASE REPRESENTS A MISCARRIAGE OF JUSTICE IT IS HARD TO
IMAGINE ONE THAT DOES NOT.  BUT ONE MUST BE CONCERNED THAT THE COURT,
HAVING TAKEN THIS GIANT STEP SO CASUALLY, MAY FIND THE NEXT STEP
EQUALLY EASY TO TAKE, ALLOWING PERHAPS CHALLENGES TO EVIDENTIARY
RULINGS AND OTHER TRIAL MATTERS HERETOFORE CONSIDERED INAPPROPRIATE FOR
FEDERAL HABEAS CORPUS. 

        VI 

THE DECISION OIN THIS CASE CANNOT REASONABLY BE EXPLAINED BY THE
MAXIM "HARD CASES MAKE BAD LAW," FOR ALTHOUGH THE LAW MADE IS BAD THE
CASE IS NOT HARD.  WHATEVER REASON THERE MIGHT BE TO STRAIN THE
CONTOURS OF 2255 TO PERMIT RELIEF TO SOMEONE VISITED WITH OBVIOUS
INJUSTICE, THE FACT IS THAT THIS PETITIONER HAS HAD FULL OPPORTUNITY TO
MAKE HIS CASE AT EVERY STAGE OF THE WAY.  HE HAS ALLEGED NO DEPRIVATION
OF HIS RIGHTS TO A FULL AND FAIR HEARING AT TRIAL, NO DEPRIVATION OF
HIS RIGHT TO APPEAL, NO INABILITY TO GET ADEQUATE CONSIDERATION ON
APPELLATE REVIEW.  HE SIMPLY ALLEGES THAT HAD HIS CASE BEEN APPEALED AT
A DIFFERENT TIME HE WOULD HAVE WON IT. I CANNOT FIND THAT THOSE
CIRCUMSTANCES ARE SO EXCEPTIONAL AS TO WARRANT THE RESULT REACHED
TODAY. 

I THEREFORE DISSENT FROM THE COURT'S OPINION.  WERE I PERSUADED
OTHERWISE, ON THAT SCORE, HOWEVER, I WOULD NONETHELESS AGREE FOR THE
REASONS STATED BY MR. JUSTICE POWELL IN HIS CONCURRING AND DISSENTING
OPINION, ANTE, P. 347, THAT THE JUDGMENT SHOULD BE AFFIRMED. 

/1/  THE PARTICULAR REGULATION RELIED UPON BY THE BOARD WAS 32 CFR
1642.4(A) (1967), WHICH WAS RESCINDED AFTER THE COURT'S DECISION IN
GUTKNECHT V. UNITED STATES, 396 U.S. 295 (1970). 

/2/  THE DISTRICT COURT SPECIFICALLY FOUND THAT PETITIONER "WOULD
HAVE RECEIVED A COMPLETE PHYSICAL EXAMINATION PRIOR TO INDUCTION HAD HE
REPORTED ON JULY 11, 1967, AS ORDERED."  PET. FOR CERT. 10A. 

/3/  ID., AT 9A. 

/4/  IBID. 

/5/  ID., AT 9A - 10A. 

/6/  447 F.2D 1376. 

/7/  405 U.S. 93 

/8/  472 F.2D 596. 

/9/  IBID. 

/10/  IBID. 

/11/  IBID. 

/12/  ANTE, AT 342 - 343. 

/13/  THE STATUTE SEEMS, AT TIMES, TO USE THE TERMS "SENTENCE" AND
"JUDGMENT" INTERCHANGEABLY, FOR PARAGRAPH THREE ALLOWS RELIEF FROM
JUDGMENTS IN SPECIFIED INSTANCES WHILE PARAGRAPH ONE WOULD SEEM TO
ALLOW ATTACKS ONLY ON SENTENCES.  BUT THE FACT THAT NO DISTINCTION IS
MADE BETWEEN THE TERMS IN PARAGRAPH ONE DOES NOT MEAN THAT THEIR
CONTRASTING USE IN PARAGRAPH THREE CAN AUTOMATICALLY BE DEEMED WITHOUT
SIGNIFICANCE.  THE COURT SHOULD ATTEMPT TO REACH A REASONABLE
INTERPRETATION BASED UPON THE PARTICULAR CONTEXT OF THE STATUTE AND THE
HISTORICAL BACKGROUND OF COLLATERAL RELIEF, RATHER THAN SIMPLY
ABANDONING THE STATUTE TO STUDY ITS LEGISLATIVE HISTORY.  SEE E. G.,
UNITED STATES V. SOBELL, 314 F.2D 314 (CA2 1963), CERT. DENIED, 374
U.S. 857 (1963). 

/14/  IT MIGHT BE ARGUED, OF COURSE, THAT THE FIRST PARAGRAPH OF
2255 WAS FOR SOME REASON DESIGNED TO PERMIT THE FILING OF MOTIONS FOR
RELIEF EVEN IN SOME CASES WHERE RELIEF COULD NOT BE GRANTED UNDER
PARAGRAPH THREE.  BUT THE COURT OFFERS NO REASON, AND I CAN THINK OF
NONE, WHY CONGRESS WOULD ENCOURAGE SUCH A FUTILE EXERCISE.  WHAT THE
COURT HAS DONE IS SIMPLY TO READ MOST OF PARAGRAPH THREE OUT OF THE
STATUTE, APPARENTLY ASSUMING THAT ITS MORE SPECIFIC PROVISIONS HAVE NO
FUNCTION IN A PROPER INTERPRETATION OF 2255. 

/15/  SECTION 2255 WAS ENACTED TO PROVIDE THE SAME RELIEF AVAILABLE
UNDER THE FEDERAL HABEAS CORPUS STATUTE WITHOUT THE LOGISTICAL PROBLEMS
ENCOUNTERED IN THE LATTER REMEDY.  UNITED STATES V. HAYMAN, 342 U.S.
205 (1952).  THE COURT MAKES MUCH OF THIS FACT IN ITS OPINION BUT THEN
DROPS THE ISSUE WITHOUT EXAMINING WHAT CONSTITUTED A "LAW" FOR PURPOSES
OF HABEAS CORPUS OR WHAT THE SCOPE OF HABEAS CORPUS RELIEF HAS PROVED
TO BE UNDER THE DECISIONS OF THIS COURT. 

/16/  THE COURT IN SWIFT V. TYSON, SUPRA, WAS CONSIDERING A SECTION
OF THE JUDICIARY ACT OF 1789, 34, 1 STAT. 92, WHICH STATED, IN PART:
"(THE LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE CONSTITUTION,
TREATIES, OR STATUTES OF THE UNITED STATES SHALL OTHERWISE REQUIRE OR
PROVIDE, SHALL BE REGARDED AS RULES OF DECISION IN TRIALS AT COMMON LAW
IN THE COURTS OF THE UNITED STATES IN CASES WHERE THEY APPLY."  THE
COURT, IN EXPLAINING ITS DOUBT THAT COURT DECISIONS CONSTITUTED "LAWS"
OBSERVED:  "THEY ARE, AT MOST, ONLY EFIDENCE OF WHAT THE LAWS ARE, AND
NOT OF THEMSELVES LAWS.  THEY ARE OFTEN RE-EXAMINED, REVERSED, AND
QUALIFIED BY THE COURTS THEMSELVES, WHENEVER THEY ARE FOUND TO BE
EITHER DEFECTIVE, OR ILL-FOUNDED, OR OTHERWISE INCORRECT."  16 PET. 1,
18.  L/17/  THE COURT, IN FACT, AVOIDS THE NECESSITY FOR A CLOSER LOOK
AT THE STATUTORY LANGUAGE OF 2255 BY TURNING INSTEAD TO THE PROVISIONS
OF THE FEDERAL HABEAS STATUTE AS A GUIDE.  THIS RELIANCE MAKES ALL THE
MORE CURIOUS THE FACT THAT THE COURT DOES NOT SUPPORT ITS VIEW OF THE
SCOPE OF FEDERAL HABEAS BY ANY CONVINCING CITATION OF AUTHORITY. 
/18/  THE SANDERS COURT'S STATEMENT OF THE ISSUE BEFORE IT CLEARLY
DEMONSTRATES HOW DIFFERENT THAT CASE WAS FROM THE ONE NOW UNDER
CONSIDERATION.  IN SANDERS THE COURT SAID:  "WE CONSIDER HERE THE
STANDARDS WHICH SHOULD GUIDE A FEDERAL COURT IN DECIDING WHETHER TO
GRANT A HEARING ON A MOTION OF A FEDERAL PRISONER UNDER 28 U.S.C.
2255."  373 U.S. 1, 2.  THAT ISSUE ARISES, NOT UNDER PARAGRAPH ONE OF
2255, SETTING FORTH THE CLAIMS WHICH A PRISONER MIGHT MAKE, OR UNDER
THAT PART OF PARAGRAPH THREE SETTING FORTH THE GROUNDS ON WHICH RELIEF
MIGHT BE GRANTED, BUT UNDER THE LANGUAGE FOUND EARLIER IN PARAGRAPH
THREE DEALING WITH WHEN A HEARING MUST BE HELD.  THUS, THE COURT IN
SANDERS WAS FACED WITH THE QUESTION, NOT OF WHETHER A PARTICULAR TYPE
OF CLAIM IS COGNIZABLE AT ALL IN A 2255 PROCEEDING, BUT SIMPLY WHETHER
A HEARING IS REQUIRED ON A CLAIM CONCEDEDLY WITHIN REACH OF THAT

THE PETITIONER IN KAUFMAN, IN CONTRAST TO THE PETITIONER HERE,
SOUGHT RELIEF ON THE GROUND THAT HE HAD BEEN SUBJECTED TO AN
UNCONSTITUTIONAL SEARCH AND SEIZURE.  THE COURT'S RECOGNITION OF THE
CONSTITUTIONAL TENOR OF HIS CLAIM IS EVIDENT THROUGHOUT THE OPINION. 
FOR EXAMPLE, THE COURT CLEARLY STATED THAT "THE AVAILABILITY OF
COLLATERAL REMEDIES IS NECESSARY TO INSURE THE INTEGRITY OF PROCEEDINGS
AT AND BEFORE TRIAL WHERE CONSTITUTIONAL RIGHTS ARE AT STAKE," 394 U.S.
217, 225, AND THAT "(THE PROVISION OF FEDERAL COLLATERAL REMEDIES RESTS
MORE FUNDAMENTALLY UPON A RECOGNITION THAT ADEQUATE PROTECTION OF
CONSTITUTIONAL RIGHTS RELATING TO THE CRIMINAL TRIAL PROCESS REQUIRES
THE CONTINUING AVAILABILITY OF A MECHANISM FOR RELIEF."  ID., AT 226. 

/19/  SEE, E.G., SUNAL V. LARGE, 332 U.S. 174, 179 (1947). 

/20/  SEE, E.G., DEMARCO V. WILLINGHAM, 401 F.2D 105, 106 (CA7
1968); LOTHRIDGE V. UNITED STATES, 441 F.2D 919 (CA6 1971). 

/21/  426 F.2D 64, 74 (1970). 

MARVIN M. KARPATKIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS MELVIN L. WULF. 

EDMUND W. KITCH ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
PETERSEN, DEPUTY SOLICITOR GENERAL FREY, JEROME M. FEIT, AND FREDERICK
W. READ III. 
..END :






















PITTSBURGH V. ALCO PARKING CORP., 417 U.S. 369 


       CITY OF PITTSBURGH V. ALCO PARKING CORP. ET AL.

       CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA

     NO. 73 - 582.  ARGUED APRIL 15, 1974--DECIDED JUNE 10, 1974;

           453 PA. 245, 307 A.2D 851, REVERSED. 


    RESPONDENT OPERATORS OF OFFSTREET PARKING FACILITIES IN

  PITTSBURGH, PA., SUED TO ENJOIN THE ENFORCEMENT OF A CITY

  ORDINANCE IMPOSING AN INCREASED 20% TAX ON THE GROSS RECEIPTS

  FROM PARKING OR STORING AUTOMOBILES AT NONRESIDENTIAL PARKING

  PLACES, ALLEGING, INTER ALIA, THAT THE ORDINANCE WAS INVALID

  UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE

  LOWER COURTS SUSTAINED THE ORDINANCE, BUT THE PENNSYLVANIA

  SUPREMEME COURT INVALIDATED IT ON THE GROUND THAT THE TAX WAS SO

  UNREASONABLY HIGH AND BURDENSOME THAT, IN THE CONTEXT OF

  COMPETITION FROM PUBLIC LOTS OPERATED BY THE CITY PARKING

  AUTHORITY, WHICH ENJOYED CERTAIN TAX EXEMPTIONS AND OTHER

  ADVANTAGES, THE ORDINANCE HAD THE "EFFECT" OF AN UNCOMPENSATED

  TAKING OF PROPERTY CONTRARY TO THE DUE PROCESS CLAUSE.  HELD:

THE ORDINANCE IS NOT UNCONSTITUTIONAL, AND THE CITY WAS

CONSTITUTIONALLY ENTITLED TO PUT THE AUTOMOBILE PARKER TO THE

  CHOICE OF USING OTHR TRANSPORTATION OR PAYING THE INCREASED TAX. 

  PP. 373 - 379. 

     (A) THE FACT THAT A TAX IS SO EXCESSIVE AS TO RENDER A
BUSINESS

  UNPROFITABLE OR EVEN THREATEN ITS EXISTENCE FURNISHES NO GROUND

  FOR HOLDING THE TAX UNCONSTITUTIONAL, MAGNANO CO. V. HAMILTON,

  292 U.S. 40; ALASKA FISH CO. V. SMITH, 255 U.S. 44, AND THE

  JUDICIARY SHOULD NOT INFER FROM SUCH FACT, ALONE, A LEGISLATIVE

  ATTEMPT TO EXERCISE A FORBIDDEN POWER IN THE FORM OF A SEEMING

  TAX.  PP. 373 - 376. 

     (B) THE ORDINANCE DOES NOT LOSE ITS CHARACTER AS A TAX OR

  REVENUE-RAISING MEASURE AND MAY NOT BE INVALIDATED AS TOO

  BURDENSOME UNDER THE DUE PROCESS CLAUSE MERELY BECAUSE THE TAXING

  AUTHORITY, DIRECTLY OR THROUGH AN INSTRUMENTALITY ENJOYING

  VARIOUS FORMS OF TAX EXEMPTION, COMPETES WITH THE TAXPAYER IN A

  MANNER THAT THE JUDICIARY THINKS IS UNFAIR, SINCE THE DUE PROCESS

  CLAUSE DOES NOT DEMAND OF OR PERMIT THE JUDICIARY TO UNDERTAKE TO

  SEPARATE BURDENSOME AND NONBURDENSOME TAXES OR TO OVERSEE THE

  TERMS AND CIRCUMSTANCES UNDER WHICH THE GOVERNMENT OR ITS

  TAX-EXEMPT INSTRUMENTALITIES MAY COMPETE WITH THE PRIVATE

  SECTOR.  PP. 376 - 377. 

WHITE, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  POWELL, J.
FILED A CONCURRING OPINION, POST, P. 379. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS THE VALIDITY UNDER THE FEDERAL
CONSTITUTION OF ORDINANCE NO. 704, WHICH WAS ENACTED BY THE PITTSBURGH,
PENNSYLVANIA, CITY COUNCIL IN DECEMBER 1969, AND WHICH PLACED A 20% TAS
ON THE GROSS RECEIPTS OBTAINED FROM ALL TRANSACTIONS INVOLVING THE
PARKING OR STORING OF A MOTOR VEHICLE AT A NONRESIDENTIAL PARKING PLACE
IN RETURN FOR A CONSIDERATION.  /1/  THE ORDINANCE

SUPERSEDED A 1968 ORDINANCE IMPOSING AN IDENTICAL TAX, BUT AT THE RATE
OF 15%, WHICH IN TURN FOLLOWED A TAX AT THE RATE OF 10% IMPOSED BY THE
CITY IN 1962.  SOON AFTER ITS ENACTMENT, 12 OPERATORS OF OFFSTREET
PARKING FACILITIES LOCATED IN THE CITY SUED TO ENJOIN ENFORCEMENT OF
THE ORDINANCE, ALLEGING THAT IT WAS INVALID UNDER THE EQUAL PROTECTION
AND DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT, AS WELL AS ART.
VIII, 1, OF THE PENNSYLVANIA CONSTITUTION, WHICH REQUIRES THAT TAXES
SHALL BE UNIFORM UPON THE SAME CLASS OF SUBJECTS.  IT APPEARS FROM THE
FINDINGS AND THE OPINIONS IN THE STATE COURTS THAT, AT THE TIME OF
SUIT, THERE WERE APPROXIMATELY 24,300 PARKING SPACES IN THE DOWNTOWN
AREA OF THE CITY, APPROXIMATELY 17,000 OF WHICH THE RESPONDENTS
OPERATED.  ANOTHER 1,000 WERE IN THE HANDS OF PRIVATE OPERATORS NOT
PARTY TO THE SUIT.  THE BALANCE OF APPROXIMATELY 6,100 WAS OWNED BY THE
PARKING AUTHORITY OF THE CITY OF PITTSBURGH, AN AGENCY CREATED PURSUANT
TO THE PARKING AUTHORITY LAW OF JUNE 5, 1947, PA. STAT. ANN., TIT. 53,
341 ET SEQ. (1974).  THE TRIAL COURT ALSO FOUND THAT THERE WAS THEN A
DEFICIENCY OF 4,100 SPACES IN THE DOWNTOWN AREA. 

THE COURT OF COMMON PLEAS SUSTAINED THE ORDINANCE.  ITS JUDGMENT WAS
AFFIRMED BY THE COMMONWEALTH COURT BY A FOUR-TO-THREE VOTE, 6 PA.
COMMW.  433, 291 A. 2D 556 (1972); ON REHEARING, 6 PA. COMMW.  453, 295
A. 2D 349 (1972), BUT THE PENNSYLVANIA SUPREME COURT REVERSED, ALSO
FOUR TO THREE.  453 PA. 245, 307 A. 2D 851 (1973).  THAT COURT REJECTED
CHALLENGES TO THE ORDINANCE UNDER THE PENNSYLVANIA CONSTITUTION AND THE
EQUAL PROTECTION CLAUSE, BUT INVALIDATED THE ORDINANCE AS AN
UNCOMPENSATED TAKING OF PROPERTY CONTRARY TO THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  BECAUSE THE DECISION APPEARED TO BE IN
CONFLICT WITH THE APPLICABLE DECISIONS OF THIS COURT, WE GRANTED
CERTIORARI, 414 U.S. 1127 (1974), AND WE NOW REVERSE THE JUDGMENT. 
/2/ 

IN THE OPINION OF THE SUPREME COURT OF PENNSYLVANIA, TWO ASPECTS OF
THE PITTSBURGH ORDINANCE COMBINED TO DEPRIVE THE RESPONDENTS OF DUE
PROCESS OF LAW.  FIRST, THE COURT THOUGHT THE TAX WAS "UNREASONABLY
HIGH" AND WAS RESPONSIBLE FOR THE INABILITY OF NINE OF 14 DIFFERENT
PRIVATE PARKING LOT OPERATORS TO CONDUCT THEIR BUSINESS AT A PROFIT AND
OF THE REMAINDER TO SHOW MORE THAN MARGINAL EARNINGS.  453 PA., AT 259
260, 307 A.2D, AT 859 - 860.  SECOND, PRIVATE OPERATORS OF PARKING
LOTS FACED COMPETITION FROM THE PARKING AUTHORITY, A PUBLIC AGENCY
ENJOYING TAX EXEMPTION (ALTHOUGH NOT NECESSARILY FROM THIS TAX) /3/
AND OTHER ADVANTAGES WHICH ENABLED IT TO OFFER OFFSTREET PARKING AT
LOWER RATES THAN THOSE CHARGED BY PRIVATE OPERATORS.  THE AVERAGE ALL
DAY RATE FOR THE PUBLIC LOTS WAS $2 AS COMPARED WITH A $3 ALL-DAY RATE
FOR THE PRIVATE LOTS.  IBID.  THE COURT'S CONCLUSION WAS THAT "(WHERE
SUCH AN UNFAIR COMPETITIVE ADVANTAGE ACCRUES, GENERATED BY THE USE OF
PUBLIC FUNDS, TO A LOCAL GOVERNMENT AT THE EXPENSE OF PRIVATE PROPERTY
OWNERS, WITHOUT JUST COMPENSATION, A CLEAR CONSTITUTIONAL VIOLATION HAS
OCCURRED.  . . ."  "(THE UNREASONABLY BURDENSOME 20 PERCENT GROSS
RECEIPTS TAX, CAUSING THE MAJORITY OF PRIVATE PARKING LOT OPERATORS TO
OPERATE THEIR BUSINESSES AT A LOSS, IN THE SPECIAL COMPETITIVE
CIRCUMSTANCES OF THIS CASE, CONSTITUTES AN UNCONSTITUTIONAL TAKING OF
PRIVATE PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION."  ID., AT 267,
269 - 270, 307 A.2D, AT 863, 864. 

WE CANNOT AGREE THAT THESE TWO CONSIDERATIONS, EITHER ALONE OR
TOGETHER, ARE SUFFICIENT TO INVALIDATE THE PARKING TAX ORDINANCE
INVOLVED IN THIS CASE.  THE CLAIM THAT A PARTICULAR TAX IS SO
UNREASONABLY HIGH AND UNDULY BURDENSOME AS TO DENY DUE PROCESS IS BOTH
FAMILIAR AND RECURRING, BUT THE COURT HAS CONSISTENTLY REFUSED EITHER
TO UNDERTAKE THE TASK OF PASSING ON THE "REASONABLENESS" OF A TAX THAT
OTHERWISE IS WITHIN THE POWER OF CONGRESS OR OF STATE LEGISLATIVE
AUTHORITIES, OR TO HOLD THAT A TAX IS UNCONSTITUTIONAL BECAUSE IT
RENDERS A BUSINESS UNPROFITABLE. 

IN MAGNANO CO. V. HAMILTON, 292 U.S. 40 (1934), THE COURT SUSTAINED
AGAINST DUE PROCESS ATTACK A STATE EXCISE TAX OF 15[ PER POUND ON ALL
BUTTER SUBSTITUTES SOLD IN THE STATE.  CONCEDING THAT THE "TAX IS SO
EXCESSIVE THAT IT MAY OR WILL RESULT IN DESTROYING THE INTRASTATE
BUSINESS OF APPELLANT," ID., AT 45, THE COURT HELD THAT "THE DUE
PROCESS OF LAW CLAUSE CONTAINED IN THE FIFTH AMENDMENT IS NOT A
LIMITATION UPON THE TAXING POWER CONFERRED UPON CONGRESS,"  THAT NO
DIFFERENT RULE SHOULD BE APPLIED TO THE STATES AND THAT A TAX WITHIN
THE LAWFUL POWER OF A STATE SHOULD NOT "BE JUDICIALLY STRICKEN DOWN
UNDER THE DUE PROCESS CLAUSE SIMPLY BECAUSE ITS ENFORCEMENT MAY OR WILL
RESULT IN RESTRICTING OR EVEN DESTROYING PARTICULAR OCCUPATIONS OR
BUSINESSES."  ID., AT 44.  THE PREMISE THAT A TAX IS INVALID IF SO
EXCESSIVE AS TO BRING ABOUT THE DESTRUCTION OF A PARTICULAR BUSINESS,
THE COURT SAID, HAD BEEN "UNIFORMLY REJECTED AS FURNISHING NO JURIDICAL
GROUND FOR STRIKING DOWN A TAXING ACT."  ID., AT 47.  VEAZIE BANK V.
FENNO, 8 WALL.  533, 548 (1869); MCCRAY V. UNITED STATES, 195 U.S. 27
(1904); AND ALASKA FISH CO. V. SMITH, 255 U.S. 44 (1921), ARE TO THE
SAME EFFECT. 

IN ALASKA FISH, A TAX ON THE MANUFACTURE OF CERTAIN FISH PRODUCTS
WAS SUSTAINED, THE COURT SAYING, ID., AT 48 - 49:  "EVEN IF THE TAX
SHOULD DESTROY A BUSINESS IT WOULD NOT BE MADE INVALID OR REQUIRE
COMPENSATION UPON THAT GROUND ALONE.  THOSE WHO ENTER UPON A BUSINESS
TAKE THAT RISK.  . . . WE KNOW OF NO OBJECTION TO EXACTING A
DISCOURAGING RATE AS THE ALTERNATIVE TO GIVING UP A BUSINESS, WHEN THE
LEGISLATURE HAS THE FULL POWER OF TAXATION."  SEE ALSO INTERNATIONAL
HARVESTER CO. V. WISCONSIN DEPT. OF TAXATION, 322 U.S. 435, 444 (1944);
CHILD LABOR TAX CASE, 259 U.S. 20, 30 (1922); BRUSHABER V. UNION
PACIFIC R. CO., 240 U.S. 1, 24 (1916); FLINT V. STONE TRACY CO., 220
U.S. 107, 168 - 169 (1911). 

NEITHER THE PARTIES NOR THE PENNSYLVANIA SUPREME COURT PURPORTS TO
DIFFER WITH THE FOREGOING PRINCIPLES.  BUT THE STATE COURT CONCLUDED
THAT THIS WAS ONE OF THOSE "RARE AND SPECIAL INSTANCES" RECOGNIZED IN
MAGNANO AND OTHER CASES WHERE THE DUE PROCESS CLAUSE MAY BE INVOKED
BECAUSE THE TAXING STATUTE IS "SO ARBITRARY AS TO COMPEL THE CONCLUSION
THAT IT DOES NOT INVOLVE AN EXERTION OF THE TAXING POWER, BUT
CONSTITUTES, IN SUBSTANCE AND EFFECT, THE DIRECT EXERTION OF A
DIFFERENT AND FORBIDDEN POWER, AS, FOR EXAMPLE, THE CONFISCATION OF
PROPERTY."  292 U.S., AT 44.  /4/ 

THERE ARE SEVERAL DIFFICULTIES WITH THIS POSITION.  THE ORDINANCE ON
ITS FACE RECITED THAT ITS PURPOSE IS "(TO PROVIDE FOR THE GENERAL
REVENUE BY IMPOSING A TAS . . . ,"  AND IN SUSTAINING THE ORDINANCE
AGAINST AN EQUAL PROTECTION CHALLENGE, THE STATE COURT ITSELF
RECOGNIZED THAT COMMERCIAL PARKING LOTS ARE A PROPER SUBJECT FOR
SPECIAL TAXATION AND THAT THE CITY HAD DECIDED, "NOT WITHOUT REASON,
THAT COMMERCIAL PARKING OPERATIONS SHOULD BE SINGLED OUT FOR SPECIAL
TAXATION TO RAISE REVENUE BECAUSE OF TRAFFIC RELATED PROBLEMS
ENGENDERED BY THESE OPERATIONS."  453 PA., AT 257, 307 A.2D, AT 858. 

IT WOULD HAVE BEEN DIFFICULT FROM ANY STANDPOINT TO HAVE HELD THAT
THE ORDINANCE WAS IN NO SENSE A REVENUE MEASURE.  THE 20% TAX
CONCEDEDLY RAISED SUBSTANTIAL SUMS OF MONEY; AND EVEN IF THE REVENUE
COLLECTED HAD BEEN INSUBSTANTIAL, SONZINSKY V. UNITED STATES, 300 U.S.
506, 513 - 514 (1937), OR THE REVENUE PURPOSE ONLY SECONDARY, HAMPTON &
CO. V. UNITED STATES, 276 U.S. 394, 411 - 413 (1928), WE WOULD NOT
NECESSARILY TREAT THIS EXACTION AS ANYTHING BUT A TAX ENTITLED TO THE
PRESUMPTION OF THE VALIDITY ACCORDED OTHER TAXES IMPOSED BY A STATE. 

RATHER THAN CONCLUDE THAT THE 20% LEVY WAS NOT A TAX AT ALL, THE
PENNSYLVANIA COURT ACCEPTED IT AS SUCH AND MERELY CONCLUDED THAT IT WAS
SO UNREASONABLY HIGH AND BURDENSOME THAT, IN THE CONTEXT OF COMPETITION
BY THE CITY, THE ORDINANCE HAD THE "EFFECT" OF AN UNCOMPENSATED TAKING
OF PROPERTY.  453 PA., AT 269, 307 A.2D, AT 864.  THE COURT DID NOT
HOLD A PARKING TAX, AS SUCH, TO BE BEYOND THE POWER OF THE CITY BUT IT
APPEARED TO HOLD THAT A BONA FIDE TAX, IF SUFFICIENTLY BURDENSOME,
COULD BE HELD INVALID UNDER THE FOURTEENTH AMENDMENT.  THIS APPROACH IS
CONTRARY TO THE CASES ALREADY CITED, PARTICULARLY TO THE OFT-REPEATED
PRINCIPLE THAT THE JUDICIARY SHOULD NOT INFER A LEGISLATIVE ATTEMPT TO
EXERCISE A FORBIDDEN POWER IN THE FORM OF A SEEMING TAX FROM THE FACT,
ALONE, THAT THE TAX APPEARS EXCESSIVE OR EVEN SO HIGH AS TO THREATEN
THE EXISTENCE OF AN OCCUPATION OR BUSINESS.  MAGNANO CO. V. HAMILTON,
SUPRA, AT 47; CHILD LABOR TAX CASE, SUPRA, AT 40 - 41; VEAZIE BANK V.
FENNO, SUPRA, AT 548. 

NOR ARE WE CONVINCED THAT THE ORDINANCE LOSES ITS CHARACTER AS A TAX
AND MAY BE STRICKEN DOWN AS TOO BURDENSOME UNDER THE DUE PROCESS CLAUSE
IF THE TAXING AUTHORITY, DIRECTLY OR LTHROUGH AN INSTRUMENTALITY
ENJOYING VARIOUS FORMS OF TAX EXEMPTION, COMPETES WITH THE TAXPAYER IN
A MANNER THOUGHT TO BE UNFAIR BY THE JUDICIARY.  THIS APPROACH WOULD
DEMAND NOT ONLY THAT THE JUDICIARY UNDERTAKE TO SEPARATE THOSE TAXES
THAT ARE TOO BURDENSOME FROM THOSE THAT ARE NOT, BUT ALSO WOULD REQUIRE
JUDICIAL OVERSIGHT OF THE TERMS AND CIRCUMSTANCES UNDER WHICH THE
GOVERNMENT OR ITS TAX-EXEMPT INSTRUMENTALITIES MAY UNDERTAKE TO COMPETE
WITH THE PRIVATE SECTOR.  THE CLEAR TEACHING OF PRIOR CASES IS THAT
THIS IS NOT A TASK THAT THE DUE PROCESS CLAUSE OF THE FEDERAL
CONSTITUTION DEMANDS OF OR PERMITS TO THE JUDICIARY.  WE ARE NOT NOW
INCLINED TO CHART A DIFFERENT COURSE. 

IN VEAZIE BANK, SUPRA, A 10% TAX ON STATE BANK NOTES WAS SUSTAINED
OVER THE OBJECTION OF THE DISSENTERS THAT THE PURPOSE WAS TO FOSTER
NATIONAL BANKS, INSTRUMENTALITIES OF THE NATIONAL GOVERNMENT, IN
PREFERENCE TO PRIVATE BANKS CHARTERED BY THE STATES.  MORE DIRECTLY IN
POINT IS PUGET SOUND CO. V. SEATTLE, 291 U.S. 619 (1934), WHERE THE
CITY IMPOSED A GROSS RECEIPTS TAX ON A POWER AND LIGHT COMPANY AND AT
THE SAME TIME ACTIVELY COMPETED WITH THAT COMPANY IN THE BUSINESS OF
FURNISHING POWER TO CONSUMERS.  THE COMPANY'S CONTENTION WAS THAT
"CONSTITUTIONAL LIMITATIONS ARE TRANSGRESSED . . . BECAUSE THE TAX
AFFECTS A BUSINESS WITH WHICH THE TAXING SOVEREIGN IS ACTIVELY
COMPETING."  ID., AT 623.  CALLING ON PRIOR CASES IN SUPPORT, THE COURT
REJECTED THE CONTENTION, HOLDING THAT "THE FOURTEENTH AMENDMENT DOES
NOT PREVENT A CITY FROM CONDUCTING A PUBLIC WATER WORKS IN COMPETITION
WITH PRIVATE BUSINESS OR PRECLUDE TAXATION OF THE PRIVATE BUSINESS TO
HELP ITS RIVAL TO SUCCEED."  ID., AT 626.  SEE ALSO MADERA WATER WORKS
V. MADERA, 228 U.S. 454 (1913).  THE HOLDING IN PUGET SOUND REMAINS
GOOD LAW AND, TOGETHER WITH THE OTHER AUTHORITIES TO WHICH WE HAVE
ALREADY REFERRED, IT IS SUFFICIENT TO REQUIRE REVERSAL OF THE DECISION
OF THE PENNSYLVANIA SUPREME COURT 

EVEN ASSUMING THAT AN UNCOMPENSATED AND HENCE FORBIDDEN "TAKING"
COULD BE INFERRED FROM AN UNREASONABLY HIGH TAX IN THE CONTEXT OF
COMPETITION FROM THE TAXING AUTHORITY, WE COULD NOT CONCLUDE THAT THE
DUE PROCESS CLAUSE WAS VIOLATED IN THE CIRCUMSTANCES OF THIS CASE.  IT
WAS URGED BY THE CIRY THAT THE PRIVATE OPERATORS WOULD NOT SUFFER
BECAUSE THEY COULD AND WOULD PASS THE TAX ON TO THEIR CUSTOMERS, WHO,
AS A CLASS, SHOULD PAY MORE FOR THE SERVICES OF THE CITY THAT THEY
DIRECTLY OR INDIRECTLY UTILIZE IN CONNECTION WITH THE SPECIAL PROBLEMS
INCIDENT TO THE TWICE DAILY MOVEMENT OF LARGE NUMBERS OF CARS ON THE
STREETS OF THE CITY AND IN AND OUT OF PARKING GARAGES.  THE RESPONSE OF
THE PENNSYLVANIA SUPREME COURT WAS THAT COMPETITION FROM THE CITY
PREVENTED THE PRIVATE OPERATORS FROM RAISING THEIR PRICES AND RECOUPING
THEIR LOSSES BY COLLECTING THE TAX FROM THEIR CUSTOMERS.  ON THE RECORD
BEFORE US, THIS IS NOT A CONVINCING BASIS FOR CONCLUDING THAT THE
PARKING TAX EFFECTED AN UNCONSTITUTIONAL TAKING OF RESPONDENTS'
PROPERTY.  THERE ARE UNDISTURBED FINDINGS IN THE RECORD THAT THERE WERE
24,300 PARKING PLACES IN THE DOWNTOWN AREA, THAT THERE WAS AN OVERALL
SHORTAGE OF PARKING FACILITIES, AND THAT THE PUBLIC AUTHORITY SUPPLIED
ONLY 6,100 PARKING SPACES.  BECAUSE THESE LATTER SPACES WERE PRICED
SUBSTANTIALLY UNDER THE PRIVATE LOTS IT COULD BE ANTICIPATED THAT THEY
WOULD BE PREFERRED BY THOSE SEEKING PARKING IN THE DOWNTOWN AREA. 
INSOFAR AS THIS RECORD REVEALS, FOR THE 20% TAX TO HAVE A DESTRUCTIVE
EFFECT ON PRIVATE OPERATORS AS COMPARED WITH THE SITUATION IMMEDIATELY
PRECEDING ITS ENACTMENT, THE DAMAGE WOULD HAVE TO FLOW CHIEFLY, NOT
FROM THOSE WHO PREFERRED THE CHEAPER PUBLIC PARKING LOTS, BUT FROM
THOSE WHO COULD NO LONGER AFFORD AN INCREASED PRICE FOR DOWNTOWN
PARKING AT ALL.  IF THIS IS THE CASE, WE SIMPLY HAVE ANOTHER INSTANCE
WHERE THE GOVERNMENT ENACTS A TAX AT A "DISCOURAGING RATE AS THE
ALTERNATIVE TO GIVING UP A BUSINESS," POLICY TO WHICH THERE IS NO
CONSTITUTIONAL OBJECTION.  ALASKA FISH CO. V. SMITH, 255 U.S., AT 49;
MAGNANO CO. V. HAMILTON, 292 U.S., AT 46. 

THE PARKING TAX ORDINANCE RECITED THAT "(NON-RESIDENTIAL PARKING
PLACES FOR MOTOR VEHICLES, BY REASON OT THE FREQUENCY RATE OF THEIR
USE, THE CHANGING INTENSITY OF THEIR USE AT VARIOUS HOURS OF THE DAY,
THEIR LOCATION, THEIR RELATIONSHIP TO TRAFFIC CONGESTION AND OTHER
CHARACTERISTICS, PRESENT PROBLEMS REQUIRING MUNICIPAL SERVICES AND
AFFECT THE PUBLIC INTEREST, DIFFERENTLY FROM PARKING PLACES ACCESSORY
TO THE USE AND OCCUPANCY OF RESIDENCES."  BY ENACTING THE TAX, THE CITY
INSISTED THAT THOSE PROVIDING AND UTILIZING NONRESIDENTIAL PARKING
FACILITIES SHOULD PAY MORE TAXES TO COMPENSATE THE CITY FOR THE
PROBLEMS INCIDENT TO OFFSTREET PARKING.  THE CITY WAS CONSTITUTIONALLY
ENTITLED TO PUT THE AUTOMOBILE PARKER TO THE CHOICE OF USING OTHER
TRANSPORTATION OR PAYING THE INCREASED TAX.     THE JUDGMENT OF THE
PENNSYLVANIA SUPREME COURT IS         REVERSED. 

/1/  THE ORDINANCE DEFINED A NONRESIDENTIAL PARKING PLACE AS
FOLLOWS: 

"(C) 'NON-RESIDENTIAL PARKING PLACE' OR 'PARKING PLACE'--ANY PLACE
WITHIN THE CITY, WHETHER WHOLLY OR PARTIALLY ENCLOSED OR OPEN, AT WHICH
MOTOR VEHICLES ARE PARKED OR STORED FOR ANY PERIOD OF TIME IN RETURN
FOR A CONSIDERATION NOT INCLUDING: 

"(I) ANY PARKING AREA OR GARAGE TO THE EXTENT THAT IT IS PROVIDED OR
LEASED TO THE OCCUPANTS OF A RESIDENCE ON THE SAME OR OTHER PREMISES
FOR USE ONLY IN CONNECTION WITH AND AS ACCESSORY TO, THE OCCUPANCY OF
SUCH RESIDENCE, AND (II) ANY PARKING AREA OR GARAGE OPERATED
EXCLUSIVELY BY AN OWNER OR LESSEE OF A HOTEL, AN APARTMENT HOTEL,
TOURIST COURT OR TRAILER PARK, TO THE EXTENT THAT THE PARKING AREA OR
GARAGE IS PROVIDED TO GUESTS OR TENANTS OF SUCH HOTEL, TOURIST COURT OR
TRAILER PARK FOR NO ADDITIONAL CONSIDERATION. 

"AS USED HEREIN, THE TERM 'RESIDENCE' INCLUDES (I) ANY BUILDING
DESIGNED AND USED FOR FAMILY LIVING OR SLEEPING PURPOSES OTHER THAN A
HOTEL, APARTMENT HOTEL, TOURIST COURT OR TRAILER PARK, AND (II) ANY
DWELLING UNIT LOCATED IN A HOTEL OR APARTMENT HOTEL. 

"THE TERMS 'HOTEL,' 'APARTMENT HOTEL,' 'TOURIST COURT,' 'TRAILER PARK'
AND 'DWELLING UNIT' ARE USED HEREIN AS DEFINED IN THE ZONING ORDINANCE,
ORDINANCE NO. 192, APPROVED MAY 10, 1958, AS AMENDED." 

/2/  IT APPEARS FROM THE OPINION OF THE PENNSYLVANIA SUPREME COURT
THAT ORDINANCE NO. 704 WAS ITSELF SUPERSEDED WHILE APPEAL WAS PENDING
IN THE STATE COURTS.  453 P. 245, 266N.  13, 307 A.2D 851, 863N.  13. 
THE NEW ORDINANCE, EFFECTIVE APRIL 1, 1973, IMPOSED A 20% TAX ON THE
CONSIDERATION PAID IN NONRESIDENTIAL PARKING TRANSACTIONS, THE TAX TO
BE COLLECTED FROM THE PATRON BY THE OPERATOR.  THIS CASE IS NOT MOOTED
BY THE NEW ORDINANCE, HOWEVER, FOR THERE REMAINS THE ISSUE OF
SUBSTANTIAL REFUNDS OF TAXES COLLECTED UNDER ORDINANCE NO. 704. 

/3/  THE ORDINANCE ON ITS FACE APPLIES TO ALL NONRESIDENTIAL PARKING
TRANSACTIONS.  THE FOLLOWING, HOWEVER, APPEARS IN N. 9 OF THE OPINION
OF THE PENNSYLVANIA SUPREME COURT, 453 PA., AT 265, 307 A.2D, AT 862: 

"AS OF THIS WRITING, THE ALLEGHENY COUNTY COURT OF COMMON PLEAS HAS
RULED THAT THE PUBLIC PARKING AUTHORITY IS EXEMPT FROM PAYMENT OF THE
CHALLENGED GROSS RECEIPTS TAX.  PUBLIC PARKING AUTHORITY OF PITTSBURGH
V. CITY OF PITTSBURGH, NO. 687, JULY TERM, 1972.  SEE ALLEGHENY COUNTY
V. MOON TOWNSHIP, 436 PA. 54, 258 A.2D 630 (1969).  AN APPEAL IS
PRESENTLY PENDING BEFORE THE COMMONWEALTH COURT. 

"HOWEVER, WHETHER THE PUBLIC PARKING AUTHORITY IS SUBJECT TO THE TAX
SEEMS TO MAKE LITTLE REAL DIFFERENCE IN THE CONTEXT OF THIS PRESENT
DISPUTE.  EVEN IF THE AUTHORITY HAD TO PAY THE TAX TO THE CITY IT WOULD
MEAN ONLY IN REALITY AN ACCOUNTING TRANSACTION, TRANSFERRING DOLLARS
FORM ONE POCKET OF AN INSTRUMENTALITY OF CITY GOVERNMENT TO ANOTHER. 
THUS ALTHOUGH APPELLANTS' ARGUMENT WOULD BE STRENGTHENED BY THE COMMON
PLEAS COURT'S DECISION, WE NEED NOT PRESENTLY REST OUR DECISION UPON
PUBLIC PARKING AUTHORITY OF PITTSBURGH V. CITY OF PITTSBURGH, SUPRA." 

/4/  CF. HEINER V. CONNAN, 285 U.S. 312, 326 (1932); NICHOLS V.
COOLIDGE, 274 U.S. 531, 542 (1927); CHILD LABOR TAX CASE, 259 U.S. 20,
37 ET SEQ. (1922); BRUSHABER V. UNION PACIFIC R. CO., 240 U.S. 1, 24 -
25 (1916); MCCRAY V. UNITED STATES, 195 U.S. 27, 60 (1904); HENDERSON
BRIDGE CO. V. HENDERSON CITY, 173 U.S. 592, 614 - 615 (1899); M'CULLOCH
V. MARYLAND, 4 WHEAT.  316, 423 (1819). 

MR. JUSTICE POWELL, CONCURRING. 

THE OPINION OF THE COURT FULLY EXPLICATES THE ISSUE PRESENTED HERE,
AND I AM IN ACCORD WITH ITS RESOLUTION.  I WRITE BRIEFLY ONLY TO
EMPHASIZE MY UNDERSTANDING THAT TODAY'S DECISION DOES NOT FORECLOSE THE
POSSIBILITY THAT SOME COMBINATION OF UNREASONABLY BURDENSOME TAXATION
AND DIRECT COMPETITION BY THE TAXING AUTHORITY MIGHT AMOUNT TO A TAKING
OF PROPERTY WITHOUT JUST COMPENSATION IN VIOLATION OF THE FIFTH AND
FOURTEENTH AMENDMENTS. 

TO SOME EXTENT, PRIVATE BUSINESS IS INEVITABLY HANDICAPPED BY DIRECT
GOVERNMENTAL COMPETITION, BUT THE OPINION OF THE COURT MAKES PLAIN THAT
THE LEGITIMATE EXERCISE OF THE TAXING POWER IS NOT TO BE RESTRAINED ON
THIS ACCOUNT.  IT IS CONCEIVABLE, HOWEVER, THAT PUNITIVE TAXATION OF A
PRIVATE INDUSTRY AND DIRECT ECONOMIC COMPETITION THROUGH A GOVERNMENTAL
ENTITY ENJOYING SPECIAL COMPETITIVE ADVANTAGES WOULD EFFECTIVELY
EXPROPRIATE A PRIVATE BUSINESS FOR PUBLIC PROFIT.  SUCH A COMBINATION
OF UNREASONABLY BURDENSOME TAXATION AND PUBLIC COMPETITION WOULD BE THE
FUNCTIONAL EQUIVALENT OF A GOVERNMENTAL TAKING OF PRIVATE PROPERTY FOR
PUBLIC USE AND WOULD BE SUBJECT TO THE CONSTITUTIONAL REQUIREMENT OF
JUST COMPENSATION.  AS THE OPINION OF THE COURT CLEARLY REVEALS, ANTE,
AT 377 - 378, NO SUCH CIRCUMSTANCE HAS BEEN SHOWN TO EXIST IN THE
INSTANT CASE. 

RALPH LYNCH, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS GRACE S. HARRIS. 

LEONARD BOREMEN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE RICHARD H. MARTIN, LEONARD M. MARKS, AND ERIC BREGMAN.  /1/ 

/1/  JAMES S. HOSTETLER FILED A BRIEF FOR THE COUNCIL FOR PRIVATE
ENTERPRISE ET AL. AS AMICI CURIAE. 
..END :

















F.P.C. V. TEXACO INC., 417 U.S. 380 


       FEDERAL POWER COMMISSION V. TEXACO INC. ET AL.

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 72 - 1490.  ARGUED FEBRUARY 19, 1974--DECIDED JUNE 10,

       1974; /1/  154 U.S. APP. D.C. 168, 474 F.2D 416, VACATED

           AND REMANDED. 

/1/  TOGETHER WITH NO. 72-1491, DOUGHERTY, EXECUTOR, ET AL. V.
TEXACO INC. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


    FOLLOWING ITS NOTICE OF PROPOSED RULEMAKING "PROPOSING)

  PROSPECTIVELY TO EXEMPT FROM REGULATION UNDER THE NATURAL GAS ACT

  ALL EXISTING AND ALL FUTURE JURISDICTIONAL SALES MADE BY SMALL

  PRODUCERS . . . ,"  AND THE FILING OF COMMENTS AND INFORMAL

  CONFERENCES, THE FEDERAL POWER COMMISSION (FPC) ISSUED ORDER NO.

  428, WHICH EXEMPTED ALL EXISTING AND FUTURE SALES BY "SMALL

  PRODUCERS" FROM DIRECT RATE REGULATION, AND PROVIDED THAT THEY

  COULD THEREUNDER CONTRACT FOR THE SALE OF THEIR GAS AT ANY

  OBTAINABLE RATES, WITHOUT REFUND OBLIGATIONS WITH RESPECT TO

  INCREASED RATES, IF ANY, COLLECTED FOR SALES REGULATED THEREUNDER

  TO THE PIPELINES.  THE FPC ASSERTED THAT THE ORDER DID NOT AMOUNT

  TO "DEREGULATION OF SALES BY SMALL PRODUCERS ABOVE CEILING PRICES

  WERE TO BE ALLOWED "TRACKING INCREASES"  IN THEIR RATES, BUT

  THOSE RATES WOULD BE SUBJECT TO REFUND "WITH RESPECT TO NEW SMALL

  PRODUCER SALES, BUT ONLY AS TO THAT PART OF THE RATE WHICH IS

  UNREASONABLY HIGH CONSIDERING APPROPRIATED COMPARISONS WITH

  HIGHEST CONTRACT PRICES FOR SALES BY LARGE PRODUCERS OR THE

  PREVAILING MARKET PRICE FOR INTRASTATE SALES IN THE SAME

  PRODUCING AREA."  THE FPC ASSERTED ITS INTENTION OF REVIEWING

  SMALL PRODUCER PRICES TO MAINTAIN REASONABLE RATES AND SPECIFIED

  THAT SMALL PRODUCERS REMAIN SUBJECT TO 7(B) OF THE NATURAL GAS

  ACT.  THE COURT OF APPEALS SET ASIDE THE FPC ORDER, HOLDING THAT

  THE SMALL PRODUCER BLANKET CERTIFICATE PROCEDURE CONTRAVENED THE

  FPC'S STATUTORY RESPONSIBILITIES UNDER 4 AND 5 OF THE ACT TO

  ENSURE "JUST AND REASONABLE RATES."  IT VIEWED THE ORDER AS

  MERELY CALLING FOR RATES THAT WERE NOT UNREASONABLY HIGH AS

  COMPARED WITH THE HIGHEST CONTRACT PRICES FOR LARGE PRODUCER

  SALES OR THE PREVAILING MARKET PRICE IN THE INTRASTATE MARKET,

  AND THE COURT HELD UNACCEPTABLE THE POSSIBLE CONTENTION THAT

  MARKET PRICES THEMSELVES WOULD PRODUCE JUST AND REASONABLE

RATES.  ##HC381 HELD: 

     1.  THE SCHEME FOR REGULATING SMALL PRODUCER RATES INDIRECTLY

  DID NOT EXCEED THE FPC'S STATUTORY AUTHORITY.  PP. 386 - 393. 

     (A) ORDER NO. 428 IS NOT INVALID BECAUSE IT DOES NOT INITIALLY

  CONSIDER EACH COMPANY AND THE REASONABLENESS OF ITS RATES, OR

BECAUSE IT HAS A TWO-TIER SYSTEM FOR SMALL PRODUCERS AND LARGE

  PRODUCERS.  CF. PERMIAN BASIN AREA RATE CASES, 390 U.S. 747.  P.

  390. 

     (B) SINCE PIPELINE RATES ARE SUBJECT TO REFUND TO THE EXTENT

  THAT THE PURCHASED GAS COMPONENT OF THEIR RATES IS EXCESSIVE,

  THERE IS AN INCENTIVE "TO BARGAIN PRICES DOWN."  PP. 390 - 391. 

     (C) REQUIRING THE PIPELINES AND THE LARGE PRODUCERS TO ASSUME

  RISKS IN BARGAINING FOR REASONABLE PRICES FROM SMALL PRODUCERS

  THAT MIGHT ENTAIL REFUNDS UNRECOVERABLE FROM THE SMALL PRODUCERS

  IS NOT AN ABUSE OF THE FPC'S DISCRETION UNDER 4(E) IN BALANCING

  THE INTERESTS INVOLVED.  PP. 391 - 392. 

     (D) IT IS PREMATURE TO ASSERT THAT THE INDIRECT REGULATION

  CONTEMPLATED BY ORDER NO. 428 IS CONFISCATORY, ESPECIALLY SINCE

  THE FPC IS TO MAINTAIN A CLOSE REVIEW OF THE AVOWEDLY

  EXPERIMENTAL SCHEME.  PP. 392 - 393. 

  2.  BUT IT IS NOT CLEAR FROM THE WORDING OF ORDER N. 428 THAT

  IT SATISFIES THE STATUTORY REQUIREMENT THAT THE SALE PRICE FOR

  GAS SOLD IN INTERSTATE COMMERCE BE JUST AND REASONABLE; AT THE

  LEAST, THE ORDER IS TOO AMBIGUOUS TO SATISFY THE STANDARD OF

  CLARITY THAT AN ADMINISTRATIVE ORDER MUST EXHIBIT, AND THE

  IMPLICATION THAT THE REASONABLENESS OF THE SMALL PRODUCERS' RATES

  WOULD BE JUDGED BY THE ASSERTION THAT THE FPC "WOULD CONSIDER ALL

  RELEVANT FACTORS" IN DETERMINING WHETHER THE PROPOSED RATES

  COMPORTED WITH THE "PUBLIC CONVENIENCE AND NECESSITY," IS

  INSUFFICIENT TO SUSTAIN THE ORDER.  PP. 394 - 397. 

     3.  THE FPC LACKS AUTHORITY TO RELY EXCLUSIVELY ON MARKET

  PRICES AS THE FINAL MEASURE OF "JUST AND REASONABLE" RATES

MANDATED BY THE ACT; MOREOVER, THE FPC ORDER MADE NO FINDING AS

  TO THE ACTUAL IMPACT THE MARKET PRICE INCREASES WOULD HAVE ON

  CONSUMER GAS EXPENDITURES.  PP. 397 - 399. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL MEMBERS
JOINED EXCEPT STEWART, J., WHO TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASES. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS LIGIGATION INVOLVES THE VALIDITY OF ORDER NO. 428 OF THE
FEDERAL POWER COMMISSION, 45 F.P.C. 454 (1971), WHICH PROVIDES A
BLANKET CERTIFICATE PROCEDURE FOR SMALL PRODUCERS OF NATURAL GAS, AND
RELIEVES THEM OF ALMOST ALL FILING REQUIREMENTS.  THE RATES OF SMALL
PRODUCERS WOULD NO LONGER BE DIRECTLY REGULATED BUT WOULD BE SUBJECTED
TO INDIRECT REGULATION THROUGH THE REVIEW OF PURCHASED GAS COSTS OF THE
PIPELINES AND LARGE PRODUCERS TO WHO THESE SMALL PRODUCERS SELL.  THE
COURT OF APPEALS, WITH ONE JUDGE DISSENTING, SET ASIDE THE ORDER, 154
U.S. APP. D.C. 168, 474 F.2D 416 (1972), CONCLUDING THAT THE
COMMISSION'S ORDER AMOUNTED TO "DEREGULATION" OF SMALL PRODUCERS AND
WAS UNAUTHORIZED BY THE NATURAL GAS ACT (THE ACT), 52 STAT. 821, 15
U.S.C. 717 ET SEQ. BECAUSE THE VALIDITY OF THE ORDER IS OF OBVIOUS
IMPORTANCE, WE GRANTED THE PETITION FOR A WRIT OF CERTIORARI FILED BY
THE COMMISSION IN NO. 72 - 1490 AND BY THE ESTATE OF MRS. JAMES R.
DOUGHERTY, AN INTERVENOR IN THE COURT OF APPEALS, IN NO. 72 - 1491. 
414 U.S. 817 (1973). 

        I 

ON JULY 23, 1970, THE FEDERAL POWER COMMISSION ISSUED A NOTICE OF
PROPOSED RULEMAKING "PROPOSING) PROSPECTIVELY TO EXEMPT FROM REGULATION
UNDER THE NATURAL GAS ACT ALL EXISTING AND ALL FUTURE JURISDICTIONAL
SALES MADE BY SMALL PRODUCERS . . . ."  35 FED. REG. 12,220 (1970). 
FOLLOWING THE FILING OF COMMENTS AND INFORMAL CONFERENCES, THE
COMMISSION, NOTING THAT ONE OF ITS IMPORTANT RESPONSIBILITIES WAS "TO
ASSURE MAINTENANCE OF AN ADEQUATE GAS SUPPLY FOR THE INTERSTATE
MARKET,"  ISSUED ORDER NO. 428, AIMED AT ENCOURAGING "SMALL PRODUCERS
/1/  TO INCREASE THEIR EXPLORATORY EFFORTS WHICH ARE SO IMPORTANT TO
THE DISCOVERY OF NEW SOURCES OF GAS . . . TO FACILITATE THE ENTRY OF
THE SMALL PRODUCER INTO THE INTERSTATE MARKET AND TO STIMULATE
COMPETITION AMONG PRODUCERS TO SELL GAS IN INTERSTATE COMMERCE."  /2/
THE SMALL PRODUCER WAS TO BE ASSURED THAT "WHEN HE ENTERS INTO A NEW
CONTRACT FOR THE INTERSTATE SALE OF GAS, THE PROVISIONS OF HIS CONTRACT
WILL NOT BE SUBJECT TO CHANGE.  WE ALSO WANT TO RELIEVE THE SMALL
PRODUCER OF THE EXPENSES AND BURDENS RELATING TO REGULATORY MATTERS." 
45 F.P.C., AT 455.  ACCORDINGLY, THE ORDER PROVIDED FOR A NATIONWIDE
BLANKET CERTIFICATE FOR SMALL PRODUCERS AND RELIEVED THEM, WITH SOME
EXCEPTIONS, FROM ALL FILING REQUIREMENTS UNDER THE ACT.  UNLIKE LARGE
PRODUCERS, SUBJECT TO COMMISSION-FIXED CEILINGS ON RATES CHARGED, THE
SMALL PRODUCER COULD SELL GAS AT THE PRICE THE MARKET WOULD BEAR, EVEN
THOUGH IN EXCESS OF MAXIMUM RATES SET FOR PRODUCERS IN PERTINENT AREA
RATE PROCEEDINGS.  FURTHERMORE, THEY WOULD HAVE "NO REFUND OBLIGATIONS
WITH RESPECT TO INCREASED RATES, IF ANY, COLLECTED FOR SALES REGULATED
HEREUNDER TO PIPELINES . . . ."  ID., AT 457. 

THE ORDER NEVERTHELESS ASSERTED THAT THE "ACTION TAKEN HERE IN OUR
VIEW DOES NOT CONSTITUTE DEREGULATION OF SALES BY SMALL PRODUCERS,"
ID., AT 455, AND THAT THE COMMISSION WOULD CONTINUE TO REGULATE SUCH
SALES IN THE COURSE OF REGULATING THE RATES OF PIPELINES AND LARGE
PRODUCERS TO WHOM THE SMALL PRODUCERS SELL THEIR GAS.  PIPELINES
PURCHASING FROM SMALL PRODUCERS AT PRICES IN EXCESS OF EXISTING
CEILINGS WERE TO BE PERMITTED TO FILE "TRACKING INCREASES"  IN THEIR
RATES, BUT THOSE RATES WOULD BE SUBJECT TO REFUND "WITH RESPECT TO NEW
SMALL PRODUCER SALES, BUT ONLY AS TO THAT PART OF THE RATE WHICH IS
UNREASONABLY HIGH CONSIDERING APPROPRIATE COMPARISONS WITH HIGHEST
CONTRACT PRICES FOR SALES BY LARGE PRODUCERS OR THE PREVAILING MARKET
PRICE FOR INTRASTATE SALES IN THE SAME PRODUCING AREA."  ID., AT 457. 
THE ISSUE WOULD BE RESOLVED EITHER IN PIPELINE RATE CASES, A PROCEEDING
LIMITED TO THE TRACKING INCREASE, OR IN CERTIFICATE CASES.  "THE
COMMISSION SHALL CONSIDER ALL RELEVANT FACTORS."  ID., AT 458.  REVIEW
OF TRACKING INCREASES BY PIPELINES WAS NOT ANTICIPATED AS TO EXISTING
CONTRACTS WITH SMALL PRODUCERS; THE ORDER AUTHORIZED SMALL PRODUCERS TO
INCREASE THEIR RATES UNDER THESE CONTRACTS, TERMS PERMITTING. 

LARGE PRODUCERS BUYING FROM SMALL PRODUCERS WOULD BE PERMITTED
TRACKING INCREASES TO THE EXTENT AUTHORIZED BY THEIR CONTRACTS AND
WITHOUT REFUND OBLIGATION "AS LONG AS THE PRICE DIFFERENTIAL IS
CONSISTNET WITH PREVAILING PRICE DIFFERENTIALS IN THE AREA AND AS LONG
AS THE SMALL PRODUCER PRICES FOR NEW GAS ARE NOT UNREASONABLY HIGH,
CONSIDERING APPROPRIATE COMPARISONS WITH HIGHEST CONTRACT PRICES BY
LARGE PRODUCERS OR THE PREVAILING MARKET PRICE FOR INTRASTATE SALES IN
THE SAME PRODUCING AREA."  ID., AT 456.  TO THE EXTENT THAT THEY
REFLECTED SMALL PRODUCER PRICES IN EXCESS OF THAT STANDARD, LARGE
PRODUCER TRACKING INCREASES WOULD BE SUBJECT TO REFUND. 

THE COMMISSION FINALLY ASSERTED THAT "(WE INTEND TO REVIEW THE PRICES
ESTABLISHED IN NEW CONTRACTS OR CONTRACT AMENDMENTS RELATING TO SALES
BY SMALL PRODUCERS TO ASSURE THE REASONABLENESS OF THE RATES CHARGED BY
SUCH PRODUCERS PURSUANT TO THE ACTION WE ARE TAKING HEREIN.  IN THE
EVENT WE DETERMINE THAT THIS APPROACH IS INIMICAL TO THE INTERESTS OF
CONSUMERS, WE SHALL TAKE FURTHER ACTION TO PROTECT THE CONSUMERS." 
ID., AT 459.  THE COMMISSION APPARENTLY REMIANED FREE TO INSTITUTE
SEPARATE PROCEEDINGS UNDER 5 (A) OF THE NATURAL GAS ACT, 15 U.S.C. 717D
(A), TO REDUCE THE PRODUCER'S RATES PROSPECTIVELY. 

THE COMMISSION ALSO MADE CLEAR THAT SMALL PRODUCERS REMAIN SUBJECT
TO THE REQUIREMENTS OF 7 (B) OF THE ACT, 15 U.S.C. 717FB), WITH RESPECT
TO THE ABANDONMENT OF JURISDICTIONAL SALES, INCLUDING THOSE SALES DEALT
WITH IN THE ORDER.  THE ORDER ALSO LIMITED THE USE OF INDEFINITE PRICE
ESCALATION CLAUSES IN SMALL PRODUCER CONTRACTS AND EXCLUDED FROM THE
REACH OF THE ORDER SMALL PRODUCER SALES MADE FROM RESERVES TRANSFERRED
BY LARGE PRODUCERS.  /3/ 

THE COURT OF APPEALS SET ASIDE THE COMMISSION ORDER, HOLDING THAT
UNDER THE STATUTE ALL NATURAL GAS SOLD IN INTERSTATE COMMERCE MUST
CARRY JUST AND REASONABLE RATES AND THAT EVEN IF INDIRECT REGULATION
WAS PERMISSIBLE UNDER THE STATUTE, ORDER NO. 428 WAS INFIRM BECAUSE
NOTHING IN IT SATISFIED THE COMMISSION'S DUTY TO INSURE THAT ALL RATES
ARE 'JUST AND REASONABLE.'"  154 U.S. APP. D.C., AT 173, 474 F.2D, AT
421.  INSTEAD, THE ORDER WAS THOUGHT MERELY TO CALL FOR RATES THAT WERE
NOT UNREASONABLY HIGH AS COMPARED WITH THE HIGHEST CONTRACT PRICES FOR
LARGE PRODUCER SALES OR THE PREVAILING MARKET PRICE IN THE INTRASTATE
MARKET--"FACTORS WHICH (THE COMMISSION) DOES NOT REGULATE OR WHICH
DERIVE SOLELY FROM MARKET FORCES."  IBID.  NOR COULD THE COURT ACCEPT
THE POSSIBLE ARGUMENT THAT MARKET FORCES THEMSELVES WOULD PRODUCE JUST
AND REASONABLE RATES, PARTICULARLY WHEN IT UNDERSTOOD THE COMMISSION
ITSELF TO TAKE THE POSITION THAT THE JUST-AND-REASONABLE STANDARD WAS
IN NO EVENT MANDATORY.  THE COURT OF APPEALS ACCORDINGLY SET ASIDE THE
COMMISSION'S ORDER. 

II 

THE COMMISSION DOES NOT CONTEND IN THIS COURT THAT THE ACT PERMITS
IT TO EXEMPT SMALL PRODUCER RATES FROM REGULATION OR TO REGULATE THOSE
RATES BY ANY CRITERION LESS DEMANDING THAN THE JUST-AND-REASONABLE
STANDARD MANDATED BY 4 AND 5 OF THE ACT, 15 U.S.C. 717C AND 717D.  ITS
MAJOR PROPOSITIONS ARE, FIRST, THAT ORDER NO. 428, WHEN PROPERLY
UNDERSTOOD, PROVIDES FOR JUST AND REASONABLE RATES BUT THROUGH THE
MEANS OF INDIRECT, RATHER THAN DIRECT, REGULATION; AND, SECOND, THAT
THE ACT DOES NOT FORBID THIS KIND OF INDIRECT REGULATION.  RESPONDENTS,
ON THE OTHER HAND, CONTEND THAT THE DUTY IMPOSED BY THE ACT TO PROVIDE
JUST AND REASONABLE RATES CANNOT BE SATISFIED BY INDIRECT REGULATION
AND THAT ORDER NO. 428 IN ANY EVENT ABANDONS THE JUST-AND-REASONABLE
STANDARD WITH RESPECT TO SMALL PRODUCER RATES. 

WE FACE FIRST THE ISSUE AS TO THE VALIDITY OF INDIRECT REGULATION OF
SMALL PRODUCER RATES:  ON THE ASSUMPTION THAT ORDER NO. 428 ALLOWS
PIPELINES AND LARGE PRODUCERS TO REFLECT IN THEIR RATES ONLY JUST AND
REASONABLE CHARGES FOR GAS PURCHASED FROM SMALL PRODUCERS, IS THE ORDER
VALID?  WE HOLD THAT IT IS, FOR WE SEE NOTHING IN THE ACT WHICH
REQUIRES THE COMMISSION TO FIX THE RATES CHARGEABLE BY SMALL PRODUCERS
BY ORDERS DIRECTLY ADDRESSED TO THEM OR WHICH PROSCRIBES THE KIND OF
INDIRECT REGULATION UNDERTAKEN HERE. 

THE ACT DIRECTS THAT ALL PRODUCER RATES BE JUST AND REASONABLE BUT
IT DOES NOT SPECIFY THE MEANS BY WHICH THAT REGULATORY PRESCRIPTION IS
TO BE ATTAINED.  THAT EVERY RATE OF EVERY NATURAL GAS COMPANY MUST BE
JUST AND REASONABLE DOES NOT REQUIRE THAT THE COST OF EACH COMPANY BE
ASCERTAINED AND ITS RATES FIXED WITH RESPECT TO ITS OWN COSTS. 
ALTHOUGH FOR A TIME FOLLOWING PHILLIPS PETROLEUM CO. V. WISCONSIN, 347
U.S. 672 (1954), THE COMMISSION PROCEEDED TO REGULATE RATES COMPANY BY
COMPANY, THERE WAS SOON A SHIFT TO THE TECHNIQUE OF SETTING AREA RATES
BASED ON COMPOSITE COST CONSIDERATIONS.  WE SUSTAINED THIS MODE OF RATE
REGULATION. 

IN WISCONSIN V. FPC, 373 U.S. 294, 309 (1963), THE COURT AFFIRMED
THE COMMISSION'S DECISION TO ABANDON THE INDIVIDUAL COST-OF-SERVICE
METHOD OF FIXING RATES AND TO SUBSTITUTE AREA RATEMEKING.  THE COURT
SAID THAT 

"(TO DECLARE THAT A PARTICULAR METHOD OF RATE REGULATION IS SO
SANCTIFIED AS TO MAKE IT HIGHLY UNLIKELY THAT ANY OTHER METHOD COULD BE
SUSTAINED WOULD BE WHOLLY OUT OF KEEPING WITH THIS COURT'S CONSISTENT
AND CLEARLY ARTICULATED APPROACH TO THE QUESTION OF THE COMMISSION'S
POWER TO REGULATE RATES.  IT HAS REPEATEDLY BEEN STATED THAT NO SINGLE
METHOD NEED BE FOLLOWED BY THE COMMISSION IN CONSIDERING THE JUSTNESS
AND REASONABLENESS OF RATES . . . ."  THIS WAS WHOLLY CONSISTENT WITH
THE COURT'S PRIOR VIEWS, SEE FPC V. NATURAL GAS PIPELINE CO., 315 U.S.
575 (1942); FPC V. HOPE NATURAL GAS CO., 320 U.S. 591 (1944); COLORADO
INTERSTATE GAS CO. V. FPC, 324 U.S. 581 (1945), AND REAFFIRMED THE
PRINCIPLE WHICH HAD BEEN CLEARLY STATED IN THE HOPE CASE:  "UNDER THE
STATUTORY STANDARD OF 'JUST AND REASONABLE' IT IS THE RESULT REACHED
NOT THE METHOD EMPLOYED WHICH IS CONTROLLING."  320 U.S., AT 602. 

THE PRINCIPLES OF THESE PRIOR CASES WERE RECOGNIZED AND APPLIED IN
THE PERMIAN BASIN AREA RATE CASES, 390 U.S. 747 (1968), WHERE WE
SUSTAINED A TWO-TIER SYSTEM OF RATES FOR NATURAL GAS PRODUCERS.  IN THE
COURSE OF DOING SO, WE RECOGNIZED THAT ENCOURAGING THE EXPLORATION FOR
AND DEVELOPMENT OF NEW SOURCES OF NATURAL GAS WAS ONE OF THE AIMS OF
THE ACT AND ONE OF THE FUNCTIONS OF THE COMMISSION.  THE PERFORMANCE OF
THIS ROLE OBVIOUSLY INVOLVED THE RATE STRUCTURE AND IMPLIED A BRAOD
DISCRETION FOR THE COMMISSION.  THE COURT SUMMARIZED THE PRINCIPLES
CONTROLLING THE JUDICIAL REVIEW OF COMMISSION ORDERS IN TERMS VERY
PERTINENT HERE: 

"THE ACT WAS INTENDED TO CREATE, THROUGH THE EXERCISE OF THE
NATIONAL POWER OVER INTERSTATE COMMERCE, 'AN AGENCY FOR REGULATING THE
WHOLESALE DISTRIBUTION TO PUBLIC SERVICE COMPANIES OF NATURAL GAS
MOVING INTERSTATE'; ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S.
498, 506; IT WAS FOR THIS PURPOSE EXPECTED TO 'BALANCE) . . . THE
INVESTOR AND THE CONSUMER INTERESTS.'  FPC V. HOPE NATURAL GAS CO. (320
U.S.), AT 603.  THIS COURT HAS REPEATEDLY HELD THAT THE WIDTH OF
ADMINISTRATIVE AUTHORITY MUST BE MEASURED IN PART BY THE PURPOSES FOR
WHICH IT WAS CONFERRED; SEE, E.G., PIEDMONT & NORTHERN R. CO. V.
COMM'N, 286 U.S. 299; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177,
193 - 194; NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190;
AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 344 U.S. 298, 311.  SURELY
THE COMMISSION'S BROAD RESPONSIBILITIES THEREFORE DEMAND A GENEROUS
CONSTRUCTION OF ITS STATUTORY AUTHORITY.  (FOOTNOTE OMITTED.) 

     "SUCH A CONSTRUCTION IS CONSISTENT WITH THE VIEW OF

  ADMINISTRATIVE RATE MAKING UNIFORMLY TAKEN BY THIS COURT.  THE

  COURT HAS SAID THAT THE 'LEGISLATIVE DISCRETION IMPLIED IN THE

  RATE MAKING POWER NECESSARILY EXTENDS TO THE ENTIRE LEGISLATIVE

  PROCESS, EMBRACING THE METHOD USED IN REACHING THE LEGISLATIVE

  DETERMINATION AS WELL AS THAT DETERMINATION ITSELF.'  LOS ANGELES

  GAS CO. V. RAILROAD COMM'N, 289 U.S. 287, 304.  AND SEE SAN DIEGO

  LAND & TOWN CO. V. JASPER, 189 U.S. 439, 446.  IT FOLLOWS THAT

  RATE-MAKING AGENCIES ARE NOT BOUND TO THE SERVICE OF ANY SINGLE

  REGULATORY FORMULA; THEY ARE PERMITTED, UNLESS THEIR STATUTORY

  AUTHORITY OTHERWISE PLAINLY INDICATES, 'TO MAKE THE PRAGMATIC

  ADJUSTMENTS WHICH MAY BE CALLED FOR BY PARTICULAR

  CIRCUMSTANCES.'  FPC V. NATURAL GAS PIPELINE CO. (315 U.S.), AT

  586."  390 U.S., AT 776 - 777. 

IT FOLLOWED THAT COMMISSION ACTION TAKEN IN THE PURSUIT OF A LEGITIMATE
STATUTORY GOAL ENJOYED THE PRESUMPTION OF VALIDITY, ID., AT 767, AND
THAT HE WHO WOULD UPSET THE RATE ORDER UNDER THE ACT CARRIES "'THE
HEAVY BURDEN OF MAKING A CONVINCING SHOWING THAT IT IS INVALID BECAUSE
IT IS UNJUST AND UNREASONABLE IN ITS CONSEQUENCES.'"  IBID. 

ACCEPTING THESE VIEWS OF OUR ROLE AS A COURT SITTING IN REVIEW, WE
CANNOT AT THIS POINT SAY THAT THE COMMISSION HAS EXCEEDED ITS POWERS BY
INSTITUTING A REGIME OF INDIRECT REGULATION OF SMALL PRODUCER RATES. 
SURELY IT IS NOT FATAL TO ORDER NO. 428 THAT IT DOES NOT, AS AN INITIAL
MATTER, CONSIDER THE COSTS OF EACH COMPANY AND THE REASONABLENESS OF
ITS RATES.  NOR IS THE ORDER VULNERABLE BECAUSE THERE WILL BE ONE LEVEL
OF JUST AND REASONABLE RATES FOR SMALL PRODUCERS AND ANOTHER FOR LARGE
PRODUCERS.  THE COURT APPROVED TWO SETS OF JUST AND REASONABLE RATES IN
THE PERMIAN BASIN CASES, THE JUSTIFICATION BEING THE NECESSITY TO
STIMULATE EXPLORATION FOR AND THE DEVELOPMENT OF NEW SUPPLIES OF
NATURAL GAS.  ID., AT 796 - 797.     INDIRECT REGULATION THROUGH THE
MECHANISM OF CONTROLLING LARGE PRODUCER COSTS WILL NOT MERELY RECREATE
THE SITUATION WHICH THE COURT IN THE PHILLIPS CASE FOUND TO BE
INCONSISTENT WITH THE NATURAL GAS ACT.  IN THE PRE-PHILLIPS ERA,
ALTHOUGH ASSERTING THE RIGHT TO PASS ON THE PRUDENTIALITY OF VARIOUS
ITEMS OF THE PIPELINES' COSTS, THE COMMISSION DID NOT PURPORT TO
REGULATE THE RATES OF PRODUCERS WITH THE AIM OF KEEPING THEM WITHIN
JUST AND REASONABLE LIMITS, AS THE COMMISSION NOW ASSERTS IT IS DOING
UNDER ORDER NO. 428. 

IT IS ARGUED THAT PERMITTING THE SMALL PRODUCERS INITIALLY TO CHARGE
WHAT THE MARKET WILL BEAR AND RELYING ON LATER REGULATION OF PIPELINE
RATES TO PROTECT THE CONSUMER IS CONTRARY TO ATLANTIC REFINING CO. V.
PUBLIC SERVICE COMM'N, 360 U.S. 378 (1959) (CATCO).  BUT PIPELINES AND
LARGE PRODUCERS MUST FILE WITH THE COMMISSION THEIR NEW CONTRACTS WITH
THE SMALL PRODUCERS, AND THEIR RATES WILL BE SUBJECT TO SUSPENSION AND
REFUND WITHIN THE LIMITS SET OUT IN ORDER NO. 428.  AS THE COURT NOTED
IN FPC V. SUNRAY DX OIL CO., 391 U.S. 9, 26 (1968), THE BASIC
ASSUMPTION WHICH MUST HAVE UNDERLAIN THE COURT'S CATCO DECISION WAS
"THAT THE PURCHASING PIPELINE, WHOSE COST OF PURCHASE IS A CURRENT
OPERATING EXPENSE WHICH THE PIPELINE IS ENTITLED TO PASS ON TO ITS
CUSTOMERS AS PART OF ITS RATES, LACKS SUFFICIENT INCENTIVE TO BARGAIN
PRICES DOWN."  HERE, ON THE OTHER HAND, THE INCENTIVE IS PROVIDED-
PIPELINE RATES ARE SUBJECT TO REFUND TO THE EXTENT THAT THE PURCHASED
GAS COST COMPONENT OF THEIR RATES IS EXCESSIVE. 

THIS LEADS TO THE CONTENTION OF THE PIPELINES AND THE LARGE
PRODUCERS THAT THE SCHEME OF INDIRECT REGULATION ENVISIONED BY ORDER
NO. 428 UNFAIRLY SUBJECTS THEM TO THE RISK OF LATER DETERMINATION THAT
THEIR GAS COSTS ARE UNJUST AND UNREASONABLE AND TO THE OBLIGATION TO
MAKE REFUNDS WHICH THEY CANNOT IN TURN RECOVER FROM THE SMALL PRODUCERS
WHOSE RATES HAVE BEEN FOUND TOO HIGH.  / J/  BUT THOSE WHOSE RATES ARE
REGULATED CHARACTERISTICALLY BEAR THE BURDEN AND THE RISK OF JUSTIFYING
THEIR RATES AND THEIR COSTS.  RATE REGULATION UNAVOIDABLY LIMITS
PROFITS AS WELL AS INCOME.  "THE FIXING OF PRICES, LIKE OTHER
APPLICATIONS OF THE POLICE POWER, MAY REDUCE THE VALUE OF THE PROPERTY
WHICH IS BEING REGULATED.  BUT THE FACT THAT THE VALUE IS REDUCED DOES
NOT MEAN THAT THE REGULATION IS INVALID."  FPC V. HOPE NATURAL GAS CO.,
320 U.S., AT 601.  ALL THAT IS PROTECTED AGAINST, IN A CONSTITUTIONAL
SENSE, IS THAT THE RATES FIXED BY THE COMMISSION BE HIGHER THAN A
CONFISCATORY LEVEL.  FPC V. NATURAL GAS PIPELINE CO., 315 U.S., AT
585.  IN THE CONTEXT OF THE NATURAL GAS ACT'S RATE REGULATION, WHETHER
ANY RATE IS CONFISCATORY, OR FOR THAT MATTER "JUST AND REASONABLE," CAN
ONLY BE JUDGED BY "THE RESULT REACHED, NOT THE METHOD EMPLOYED."  FPC
V. HOPE NATURAL GAS CO., SUPRA, AT 602.  IN THE PERMIAN BASIN AREA RATE
CASES, 390 U.S., AT 769, WE STATED A TRUISM OF RATE REGULATION:
"REGULATION MAY, CONSISTENTLY WITH THE CONSTITUTION LIMIT STRINGENTLY
THE RETURN RECOVERED ON INVESTMENT, FOR INVESTORS'  INTERESTS PROVIDE
ONLY ONE OF THE VARIABLES IN THE CONSTITUTIONAL CALCULUS OF
REASONABLENESS." 

HERE, REQUIRING PIPELINES AND THE LARGE PRODUCERS TO ASSUME THE RISK
IN BARGAINING FOR REASONABLE PRICES FROM SMALL PRODUCERS IS WITHIN THE
COMMISSION'S DISCRETION IN WORKING OUT THE BALANCE OF THE INTERESTS
NECESSARILY INVOLVED.  THE CONSUMER WOULD BE PROTECTED FROM CURRENT
EXCESSIVE RATES, BUT AT THE EXPENSE OF THE PIPELINE, RATHER THAN THE
PRODUCER, WHO IS ENGAGED IN NECESSARY EXPLORATORY ACTIVITY, THUS
SERVING THE PUBLIC INTEREST IN GETTING GREATER GAS PRODUCTION BUT AT
JUST AND REASONABLE RATES.  UNDER SUCH CIRCUMSTANCES, IT IS SURELY NOT
AN ABUSE OF THE DISCRETION THE COMMISSION RETAINS UNDER 4(E) OF THE
ACT, SEE PERMIAN BASIN AREA RATE CASES, SUPRA, AT 826 - 827, TO REFRAIN
FROM IMPOSING A REFUND OBLIGATION ON THE SMALL PRODUCERS. 

ANY BROADSIDE ASSERTION THAT INDIRECT REGULATION WILL BE
CONFISCATORY IS PREMATURE.  THE CONSEQUENCES OF INDIRECT REGULATION CAN
ONLY BE VIEWED IN THE ENTIRETY OF THE RATE OF RETURN ALLOWED ON
INVESTMENT, AND THIS EFFECT WILL BE UNKNOWN UNTIL THE COMMISSION HAS
APPLIED ITS SCHEME IN INDIVIDUAL CASES OVER A PERIOD OF TIME. 
MOREOVER, THE "REGULATION OF PRODUCER PRICES IS AVOWEDLY STILL
EXPERIMENTAL,"  ID., AT 772, AND ORDER NO. 428 ASSERTS THE COMMISSION'S
INTENTION TO KEEP THE EXPERIMENT UNDER CLOSE REVIEW.  THE COMMISSION
CLAIMS AND IS ENTITLED TO NO LICENSE TO BE ARBITRARY OR CAPRICIOUS IN
DISALLOWING PURCHASED GAS COSTS OF LARGE PRODUCERS AND PIPELINES.  THE
COMMISSION MAY NOT EXCEED ITS AUTHORITY UNDER THE ACT; ITS ORDERS ARE
SUBJECT TO JUDICIAL REVIEW; AND REVIEWING COURTS MUST DETERMINE WHETHER
COMMISSION ORDERS, ISSUED PURSUANT TO INDIRECT REGULATION, ARE
SUPPORTED BY SUBSTANTIAL EVIDENCE AND WHETHER IT IS RATIONAL TO EXPECT
THEM "TO MAINTAIN FINANCIAL INTERGRITY, ATTRACT NECESSARY CAPITAL, AND
FAIRLY COMPENSATE INVESTORS FOR THE RISK THEY HAVE ASSUMED, AND YET
PROVIDE APPROPRIATE PROTECTION TO THE RELEVANT PUBLIC INTERESTS, BOTH
EXISTING AND FORESEEABLE."  ID., AT 792. 

IF, IN THE COURSE OF THE NECESSARY BARGAINING WITH SMALL PRODUCERS,
THE LARGE PRODUCERS AND THE PIPELINES ARE GIVEN NO GUIDANCE WHATSOEVER
AS TO WHAT THE STANDARDS OF THE COMMISSION MAY BE, THE RISK OF
INCURRING UNREFUNDABLE EXPENSES THAT MAY LATER BE DISALLOWED IS
CONSIDERABLY ENHANCED.  THE SCOPE OF THIS POSSIBLE DIFFICULTY IS
MEASURED BY THE STANDARDS, OR LACK OF THEM, BY WHICH THE COMMISSION
WILL REVIEW THE PURCHASED GAS COSTS OF THE LARGE PRODUCERS AND THE
PIPELINES.  AS ORDER NO. 428 REVEALS, THE COMMISSION IS SURELY AWARE OF
THE PROBLEM, AND WE WOULD EXPECT ADDITIONAL ATTENTION TO BE GIVEN THIS
QUESTION IN THE COURSE OF THE REMAND PROCEEDINGS WHICH, AS EXPLAINED IN
PART III, WE THINK ARE NECESSARY HERE.  /5/

        III 

WE TURN NOW TO WHETHER ORDER NO. 428 IS INVALID FOR FAILURE TO
COMPLY WITH THE NATURAL GAS ACT'S REQUIREMENT THAT THE SALE PRICE FOR
GAS SOLD IN INTERSTATE COMMERCE BE JUST AND REASONABLE.  THE COURT OF
APPEALS REJECTED WHAT IT APPARENTLY UNDERSTOOD WAS "THE COMMISSION'S
BASIC CONTENTION ALL ALONG . . . THAT THE 'JUST AND REASONABLE'
STANDARD WAS NOT MANDATORY AND THAT THE FPC CAN SIMPLY CHOOSE NOT TO
REGULATE RATES."  154 U.S. APP. D.C., AT 175, 474 F.2D, AT 422. 
WHATEVER THE POSITION OF THE COMMISSION HERETOFORE HAS BEEN, IT WISELY
DOES NOT CHALLENGE THAT ASPECT OF THE COURT OF APPEALS JUDGMENT. 
JUST AND REASONABLE; AND THE COURT HELD IN PHILLIPS THAT THIS VERY
PRESCRIPTION APPLIES TO THE RATES OF ALL GAS PRODUCERS.  THE COMMISSION
MAY HAVE GREAT DISCRETION AS TO HOW TO INSURE JUST AND REASONABLE
RATES, BUT IT IS PLAIN ENOUGH TO US THAT THE ACT DOES NOT EMPOWER IT TO
EXEMPT SMALL PRODUCER RATES FROM COMPLIANCE WITH THAT STANDARD. 

TO THE CONTRARY.  IT AUTHORIZES THE COMMISSION TO PERFORM ANY AND ALL
ACTS AND TO ISSUE ANY AND ALL RULES AND REGULATIONS "AS IT MAY FIND
NECESSARY OR APPROPRIATE TO CARRY OUT THE PROVISIONS OF THIS ACT"; AND
"(FOR THE PURPOSES OF ITS RULES AND REGULATIONS, THE COMMISSION MAY
CLASSIFY PERSONS AND MATTERS WITHIN ITS JURISDICTION AND PRESCRIBE
DIFFERENT REQUIREMENTS FOR DIFFERENT CLASSES OF PERSONS OR MATTERS." 
BUT 16 OBVIOUSLY DOES NOT VEST AUTHORITY IN THE COMMISSION TO SET
UNJUST AND UNREASONABLE RATES, EVEN FOR SMALL PRODUCERS.  IT DOES NOT
AUTHORIZE THE COMMISSION TO SET AT NAUGHT AN EXPLICIT PROVISION OF THE
ACT.  NO PRODUCER IS EXEMPT FROM 4 AND 5.  NEITHER THE PERMIAN BASIN
AREA RATE CASES NOR FPC V. LOUISIANA POWER & LIGHT CO., 406 U.S. 621
(1972), ON WHICH THE GOVERNMENT RELIES, SUGGESTS OR HOLDS THAT 16
PERMITS THE COMMISSION TO IGNORE THE SPECIFIC MANDATES OF THOSE

THE COURT OF APPEALS ALSO READ ORDER NO. 428 AS FAILING TO PROVIDE A
MECHANISM FOR INSURING THAT SMALL PRODUCER RATES WILL BE JUST AND
REASONABLE.  IN ITS VIEW, THE ORDER PROVIDED A PURE MARKET STANDARD FOR
THE APPROVAL OF THE PURCHASED GAS COSTS OF LARGE PRODUCERS AND
PIPELINES, A STANDARD WHICH FELL SHORT OF THE REQUIREMENTS OF THE ACT. 
ACCORDINGLY, IT SET ASIDE THE ORDER. 

THE COMMISSION DOES NOT ASSERT HERE THAT IT IS FREE UNDER THE ACT TO
EQUATE JUST AND REASONABLE RATES WITH THE PRICES FOR GAS PREVAILING IN
THE MARKET PLACE.  ITS MAJOR REMAINING CONTENTION IS THAT THE COURT OF
APPEALS MISREAD ORDER NO. 428 AND THAT THE ORDER, PROPERLY UNDERSTOOD,
CONTEMPLATES A SCHEME OF INDIRECT REGULATION THAT WOULD ASSURE JUST AND
REASONABLE SMALL-PRODUCER RATES FOR NATURAL GAS AND THAT WOULD JUDGE
SMALL-PRODUCER RATES NOT ONLY BY MARKET FACTORS BUT BY ALL THE RELEVANT
CONSIDERATIONS NECESSARY TO ARRIVE AT THE CONSIDERED JUDGMENT
CONTEMPLATED BY THE ACT.  FOR PRESENT PURPOSES, THEN, THE COMMISSION
ACCEPTS THE COURT OF APPEALS'  CONSTRUCTION OF THE ACT; BUT INSISTS
THAT THE ORDER IS CONSISTENT WITH THE STATUTE AS SO CONSTRUED. 

IN THIS POSTURE OF THE CASE, WE THINK IT CLEAR THAT ORDER NO. 428
CANNOT STAND IN ITS PRESENT FORM AND THAT THE CASES SHOULD BE REMANDED
FOR FURTHER PROCEEDINGS BEFORE THE COMMISSION.  WE HAVE STUDIED THE
ORDER WITH CARE, AND WE CANNOT ACCEPT THE CONSTRUCTION OF IT THAT THE
COMMISSION NOW PRESSES UPON US.  AT THE VERY LEAST, THE ORDER IS SO
AMBIGUOUS THAT IT FALLS SHORT OF THAT STANDARD OF CLARITY THAT
ADMINISTRATIVE ORDERS MUST EXHIBIT.  THE COMMISSION WAS BOUND TO
EXERCISE ITS DISCRETION WITHIN THE LIMITS OF THE STANDARDS EXPRESSED BY
THE ACT; AND "FOR THE COURTS TO DETERMINE WHETHER THE AGENCY HAS DONE
SO, IT MUST 'DISCLOSE THE BASIS OF ITS ORDER' AND 'GIVE CLEAR
INDICATION THAT IT HAS EXERCISED THE DISCRETION WITH WHICH CONGRESS HAS
EMPOWERED IT.'"  BURLINGTON TRUCK LINES V. UNITED STATES, 371 U.S. 156,
167 - 168 (1962), QUOTING IN PART FROM PHELPS DODGE CORP. V. NLRB, 313
U.S. 177, 197 (1941).  WE SHALL INDICATE BRIEFLY OUR BASIS FOR THIS
CONCLUSION. 

IN THE FIRST PLACE, ORDER NO. 428 DOES NOT EXPRESSLY MENTION THE
JUST-AND-REASONABLE STANDARD.  IT COMES NO CLOSER THAN TO SUBJECT
PIPELINE RATES TO REDUCTION AND REFUND "ONLY AS TO THAT PART OF THE
RATE WHICH IS UNREASONABLY HIGH CONSIDERING APPROPRIATE COMPARISONS
WITH HIGHEST CONTRACT PRICES FOR SALES BY LARGE PRODUCERS OR THE
PREVAILING MARKET PRICE FOR INTRASTATE SALES . . . ."  45 R.P.C., AT
457.  THE ORDER TOOK A VERY SIMILAR APPROACH TO THE TRACKING INCREASES
BY LARGE PRODUCERS.  MOREOVER, UNDER THE ORDER, CONTRACTUALLY
AUTHORIZED INCREASES IN RATES FOR FLOWING GAS UNDER EXISTING CONTRACTS
COULD BE AUTOMATICALLY PASSED THROUGH BY THE PIPELINES AND WOULD NOT BE
SUBJECT TO EXAMINATION UNDER THE STANDARD PROPOSED BY THE ORDER WITH
RESPECT TO NEW SALES BY SMALL PRODUCERS.  THERE WAS NO FINDING THAT
THESE CONTEMPLATED INCREASED RATES FOR FLOWING GAS WOULD BE JUST AND
REASONABLE.  THE COMMISSION MERELY ASSERTS IN ITS BRIEF HERE THAT IT
WAS FAMILIAR WITH THE EXISTING CONTRACTS AND MUST HAVE CONSIDERED THE
RATES RESERVED TO BE ACCEPTABLE UNDER THE ACT. 

IT IS TRUE THAT PIPELINE AND LARGE PRODUCER COSTS FOR NEW SMALL
PRODUCER GAS WERE NOT TO BE "UNREASONABLE"  BUT THE IMPLICATION APPEARS
TO BE THAT REASONABLENESS WOULD BE JUDGED BY THE STANDARD OF THE
MARKETPLACE.  IT IS ALSO TRUE THAT THE COMMISSION ASSERTED THAT IT WAS
NOT DEREGULATING SMALL PRODUCER RATES, THAT THE COMMISSION "SHALL
CONSIDER ALL RELEVANT FACTORS" IN DETERMINING WHETHER PROPOSED RATES
WERE CONSISTENT WITH THE "PUBLIC CONVENIENCE AND NECESSITY," AND THAT
THE COMMISSION INTENDED TO REVIEW NEW CONTRACT PRICES CHARGED BY SMALL
PRODUCERS "TO ASSURE THAT THE REASONABLENESS OF THE RATES CHARGED BY
SUCH PRODUCERS PURSUANT TO THE ACTION WE ARE TAKING HEREIN."  BUT THESE
GENERALITIES DO NOT SUPPLY THE REQUISITE CLARITY TO THE ORDER OR
CONVINCE US THAT IT SHOULD BE SUSTAINED. 

HAD THE ORDER UNAMBIGUOUSLY PROVIDED WHAT THE COMMISSION NOW ASSERTS
IT WAS INTENDED TO PROVIDE, /7/  WE WOULD HAVE A FAR DIFFERENT CASE TO
DECIDE.  BUT AS IT IS, WE CANNOT "ACCEPT APPELLATE COUNSEL'S POST HOC
RATIONALIZATIONS FOR AGENCY ACTION"; FOR AN AGENCY'S ORDER MUST BE
UPHELD, IF AT ALL, "ON THE SAME BASIS ARTICULATED IN THE ORDER BY THE
AGENCY ITSELF."  BURLINGTON TRUCK LINES, 371 U.S., AT 168 - 169; SEC V.
CHENERY CORP., 332 U.S. 194, 196 (1947). 

        IV 

FOR THE PURPOSES OF THE PROCEEDINGS THAT MAY OCCUR ON REMAND, WE
SHOULD ALSO STRESS THAT IN OUR VIEW THE PREVAILING PRICE IN THE
MARKETPLACE CANNOT BE THE FINAL MEASURE OF "JUST AND REASONABLE" RATES
MANDATED BY THE ACT.  IT IS ABUNDANTLY CLEAR FROM THE HISTORY OF THE
ACT AND FROM THE EVENTS THAT PROMPTED ITS ADOPTION THAT CONGRESS
CONSIDERED THAT THE NATURAL GAS INDUSTRY WAS HEAVILY CONCENTRATED AND
THAT MONOPOLISTIC FORCES WERE DISTORTING THE MARKET PRICE FOR NATURAL
GAS.  /8/  HENCE, THE NECESSITY FOR REGULATION AND HENCE THE STATEMENT
IN SUNRAY DX, 391 U.S., AT 25, THAT IF CONTRACT PRICES FOR GAS WERE SET
AT THE MARKET PRICE, THIS 

"WOULD NECESSARILY BE BASED ON A BELIEF THAT THE CURRENT CONTRACT
PRICES IN AN AREA APPROXIMATE CLOSELY THE 'TRUE' MARKET PRICE--THE JUST
AND REASONABLE RATE.  ALTHOUGH THERE IS DOUBTLESS SOME RELATIONSHIP,
AND SOME ECONOMISTS HAVE URGED THAT IT IS INTIMATE, SUCH A BELIEF WOULD
CONTRADICT THE BASIC ASSUMPTION THAT HAS CAUSED NATURAL GAS PRODUCTION
TO BE SUBJECTED TO REGULATION . . . ."  (FOOTNOTE OMITTED.)  IN
SUBJECTING PRODUCERS TO REGULATION BECAUSE OF ANTI-COMPETITIVE
CONDITIONS IN THE INDUSTRY, CONGRESS COULD NOT HAVE ASSUMED THAT "JUST
AND REASONABLE" RATES COULD CONCLUSIVELY BE DETERMINED BY REFERENCE TO
MARKET PRICE.  OUR HOLDING IN PHILLIPS IMPLIES JUST THE OPPOSITE.  THIS
DOES NOT MEAN THAT THE MARKET PRICE OF GAS WOULD NEVER, IN AN
INDIVIDUAL CASE, COINCIDE WITH JUST AND REASONABLE RATES OR NOT BE A
RELEVANT CONSIDERATION IN THE SETTING OF AREA RATES, SEE PERMIAN BASIN
AREA RATE CASES, 390 U.S., AT 793 - 795; IT MAY CERTAINLY BE TAKEN INTO
ACCOUNT ALONG WITH OTHER FACTORS, SOUTHERN LOUISIANA AREA RATE CASES,
428 F.2D 407, 441 (CA5), CERT. DENIED SUB NOM. ASSOCIATED GAS
DISTRIBUTORS V. AUSTRAL OIL CO., 400 U.S. 950 (1970).  IT DOES REQUIRE,
HOWEVER, THE CONCLUSION THAT CONGRESS REJECTED THE IDENTITY BETWEEN THE
"TRUE" AND THE "ACTUAL" MARKET PRICE.     THE COURT IS NOT UNRESPONSIVE
TO THE SPECIAL NEEDS OF SMALL PRODUCERS WHO PLAY A CRITICAL ROLE IN
EXPLORATORY EFFORTS IN THE NATURAL GAS INDUSTRY AND AMELIORATING THE
SUPPLY SHORTAGE.  THE REQUIREMENTS OF THE ACT, HOWEVER, DO NOT
DISTINGUISH BETWEEN SMALL AND LARGE PRODUCERS WITH RESPECT TO JUST AND
REASONABLE RATES.  EVEN IF THE EFFECT OF INCREASED SMALL-PRODUCER
PRICES WOULD MAKE A SMALL DENT IN THE CONSUMER'S POCKET, WHEN COMPARED
WITH THE RATES CHARGED BY THE LARGE PRODUCERS, THE ACT MAKES UNLAWFUL
ALL RATES WHICH ARE NOT JUST AND REASONABLE, AND DOES NOT SAY A LITTLE
UNLAWFULNESS IS PERMITTED.  MOREOVER, THERE IS NO FINDING IN THE
COMMISSION'S ORDER AS TO THE ACTUAL IMPACT THE PROJECTED MARKET PRICE
INCREASES WOULD HAVE ON CONSUMER EXPENDITURES FOR GAS, AND THE
COMMISSION IS PREVIOUSLY ON RECORD IN ITS PERMIAN DICISION, AS STATING:
"THE IMPACT OF SMALL PRODUCER PRICES ON CONSUMERS BY NO MEANS DE
MINIMIS ON AN AREA BASIS, AND IS OF GREAT IMPACT IN SOME SITUATIONS." 
34 F.P.C. 159, 235 (1965). 

        V 

IN CONCLUDING THAT THE COMMISSION LACKS THE AUTHORITY TO PLACE
EXCLUSIVE RELIANCE ON MARKET PRICES, WE BOW TO OUR PERCEPTION OF
LEGISLATIVE INTENT.  IT MAY BE, AS SOME ECONOMISTS HAVE PERSUASIVELY
ARGUED, /9/  THAT THE ASSUMPTIONS OF THE 1930'S ABOUT THE COMPETITIVE
STRUCTURE OF THE NATURAL GAS INDUSTRY, IF TRUE THEN, ARE NO LONGER TRUE
TODAY.  IT MAY ALSO BE THAT CONTROL OF PRICES IN THIS INDUSTRY, IN A
TIME OF SHORTAGE, IF SUCH THERE BE, IS COUNTERPRODUCTIVE TO THE
INTERESTS OF THE CONSUMER IN INCREASING THE PRODUCTION OF NATURAL GAS. 
IT IS NOT THE COURT'S ROLE, HOWEVER, TO OVERTURN CONGRESSIONAL
ASSUMPTIONS EMBEDDED INTO THE FRAMEWORK OF REGULATION ESTABLISHED BY
THE ACT.  THIS IS A PROPER TASK FOR THE LEGISLATURE WHERE THE PUBLIC
INTEREST MAY BE CONSIDERED FROM THE MULTIFACETED POINTS OF VIEW OF THE
REPRESENTATIONAL PROCESS. 

ATTEMPTS HAVE BEEN MADE IN THE PAST TO EXEMPT PRODUCERS FROM THE
COVERAGE OF THE ACT, BUT THESE ATTEMPTS HAVE BEEN UNSUCCESSFUL.  THE
COURT REALIZED AS MUCH IN THE PHILLIPS CASE.  347 U.S., AT 685, AND N.
14.  IN 1950, CONGRESS HAD PASSED A BILL, H.R. 1758, 81ST CONG., 2D
SESS., TO EXEMPT GAS PRODUCERS FROM THE ACT, BUT PRESIDENT TRUMAN
VETOED THE BILL STATING THAT "THERE IS A CLEAR POSSIBILITY THAT
COMPETITION WILL NOT BE EFFECTIVE, AT LEAST IN SOME CASES, IN HOLDING
PRICES TO REASONABLE LEVELS.  ACCORDINGLY, TO REMOVE THE AUTHORITY TO
REGULATE, AS THIS BILL WOULD DO, DOES NOT SEEM TO ME TO BE WISE PUBLIC
POLICY."  THE PRESIDENT MADE THIS JUDGMENT DESPITE THE ARGUMENTS THAT
IMPOSITION OF PRICE CONTROL WOULD DISCOURAGE EXPLORATION AND
DEVELOPMENT OF NEW WELLS.  PUBLIC PAPERS OF THE PRESIDENTS, HARRY S.
TRUMLAN, 1950, P. 257 (1965).  FOR THE COURT TO STEP OUTSIDE ITS ROLE
IN CONSTRUING THIS STATUTE, AND INSERT ITSELF INTO THE DEBATE ON
ECONOMICS AND THE PUBLIC INTEREST, WOULD BE AN UNWARRANTED INTRUSION
INTO THE LEGISLATIVE FORUM WHERE THE DEBATE AGAIN RAGES ON THE QUESTION
OF DEREGULATION OF NATURAL GAS PRODUCERS. 

WE DO, HOWEVER, MAKE CLEAR THAT UNDER THE PRESENT ACT THE COMMISSION
IS FREE TO ENGAGE IN INDIRECT REGULATION OF SMALL PRODUCERS BY
REVIEWING PIPELINE COSTS OF PURCHASED GAS, PROVIDING THAT IT INSURES
THAT THE RATES PAID BY PIPELINES, AND ULTIMATELY BORNE BY THE CONSUMER,
ARE JUST AND REASONABLE.  IT MAY BE, AS SOME OF THE RESPONDENTS
SUGGEST, THAT ENSURING JUST AND REASONABLE RATES BY MEANS OF INDIRECT
REGULATION WILL NOT BE ADMINISTRATIVELY FEASIBLE, BUT THIS IS A MATTER
FOR THE COMMISSION TO CONSIDER. 

WE AGREE WITH THE COURT OF APPEALS THAT THE ORDER OF THE COMMISSION
MUST BE SET ASIDE; BUT FOR REASONS PREVIOUSLY STATED, WE VACATE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASES TO THAT COURT
WITH INSTRUCTIONS TO REMAND THE CASES TO THE COMMISSION FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              VACATED AND REMANDED. 

/1/  A "SMALL PRODUCER" WAS DEFINED AS AN INDEPENDENT PRODUCER, NOT
AFFILIATED WITH A NATURAL GAS PIPELINE COMPANY AND WHOSE TOTAL
JURISDICTIONAL SALES ON A NATIONWIDE BASIS, TOGETHER WITH SALES OF
AFFILIATED PRODUCERS, DID NOT EXCEED 10,000,000 MCF AT 14.65 PSIA
DURING ANY CALENDAR YEAR.  NEW SMALL PRODUCER SALES INCLUDED ANY SALE
MADE PURSUANT TO A CONTRACT DATED AFTER MARCH 18, 1971. 

/2/  THE COMMISSION FOUND THAT SMALL PRODUCERS PRODUCE ABOUT 10% OF
THE GAS PURCHASED BY PIPELINES, EXCLUSING ALL PIPELINE-TO-PIPELINE
SALES.  IT APPEARS, HOWEVER, THAT THEY ALSO ACCOUNT FOR 80% OF THE
NATURAL GAS EXPLORATION IN THIS COUNTRY. 

/3/  SUBSQUENTLY, THE COMMISSION ISSUED TWO SUPPLEMENTAL ORDERS,
ORDER NO. 428 - A, 45 F.P.C. 548, REVISING THE ANNUAL STATEMENT
REQUIREMENTS FOR SMALL PRODUCERS AND ORDER NO. 428 - B, 46 F.P.C. 47,
WHICH DENIED APPLICATIONS FOR REHEARING AND MODIFIED ORDER NO. 428 IN
RESPECTS THAT NEED NOT BE MENTIONED HERE. 

/4/  THE LARGE PRODUCERS ALSO CONTEND THAT THEY ARE PUT AT A
DISADVANTAGE BY THE COMMISSION'S ORDER BECAUSE THEIR CONTRACTS MAY NOT
PERMIT THEM TO PASS ON THE INCREASED COSTS OF GAS PURCHASED FROM SMALL
PRODUCERS, WHEREAS THE PIPELINES WILL BE IN A POSITION TO DO SO.  THIS
IS, HOWEVER, A FUNCTION OF THE PRODUCERS' CONTRACTS, AND THE COMMISSION
HAS NO AUTHORITY, ABSENT A FINDING THAT THE EXISTING CONTRACT RATE "IS
SO LOW AS TO HAVE AN ADVERSE EFFECT ON THE PUBLIC INTEREST,"  TO PERMIT
LARGE PRODUCERS OR PIPELINES TO RAISE THEIR RATES IN EXCESS OF THE
MAXIMUM AUTHORIZED IN THEIR CONTRACTS, FPC V. SIERRA PACIFIC POWER CO.,
350 U.S. 348, 355 (1956); UNITED GAS CO. V. MOBILE GAS CORP., 350 U.S.
332 (1956).  WE THINK OTHER CLAIMS OF THE LARGE PRODUCERS, AS TO UNFAIR
TREATMENT OR DISCRIMINATION, ARE EQUALLY ILL-FOUNDED. 

/5/  THE NEW YORK PUBLIC SERVICE COMMISSION ALSO QUESTIONS WHETHER
IT IS ADMINISTRATIVELY FEASIBLE FOR THE FPC, ON REVIEW OF INDIVIDUAL
PIPELINES "COSTS, TO MAKE SURE RATES ARE JUST AND REASONABLE, CLAIMING
THAT THIS WOULD BE A RETURN WITH A VENGEANCE TO THE ADMINISTRATIVE
MORASS WHICH LED TO THE ADOPTION OF AREA RATES FOR PRODUCERS IN THE
FIRST INSTANCE.  THIS CLAIM IS ALSO PREMATURE IN LIGHT OF POSSIBLE
REGULATORY APPROACHES THE FPC MAY TAKE ON REMAND. 

/6/  THE COMMISSION'S POSITION IS NOT ADVANCED BY FPC V. HUNT, 376
U.S. 515, 527 (1964).  THE COURT IN THAT CASE MERELY QUESTIONED WHETHER
EXEMPTION MIGHT PROVE, AFTER STUDY, TO BE AN AVAILABLE ALTERNATIVE. 

/7/  THE COMMISSION, IN ITS BRIEF, HAS INDICATED THAT THE STANDARD
WILL NOT BE LIMITED TO COMPARISONS WITH APPROPRIATE MARKET PRICES, BUT
WILL INCLUDE (1) PRODUCER'S COSTS, (2) THE PIPELINE'S NEED FOR GAS, (3)
THE AVAILABILITY OF OTHER GAS SUPPLIES, (4) THE AMOUNT OF GAS DEDICATED
UNDER THE CONTRACT, AND (5) THE RATES OF OTHER RECENT SMALL-PRODUCER
SALES PREVIOUSLY APPROVED FOR FLOWTHROUGH. 

/8/  AS APPEARS FROM 1(A) OF THE ACT, 15 U.S.C. 717(A), THE
LEGISLATION STEMMED FROM THE 1935 REPORT OF THE FEDERAL TRADE
COMMISSION.  S. DOC. NO. 92, PT. 84 - A, 70TH CONG., 1ST SESS.
(PUBLISHED 1936).  THAT REPORT CONCLUDED THAT THERE WAS HEAVY
CONCENTRATION BOTH IN THE PRODUCTION AND DISTRIBUTION OF NATURAL GAS. 
"THE 4 LARGEST PRODUCER GROUPS ACCOUNT FOR ABOUT 72 PERCENT OF THE
OUTPUT OF NATURAL GAS PRODUCED BY 32 HOLDING COMPANY GROUPS IN 1930." 
ID., AT 589.  THE HEAVY CONCENTRATION OF PIPELINE OWNERSHIP
"ACCENTUATES WHATEVER CONTROL THE PIPELINE INTERESTS HAVE OF THE
AVAILABLE GAS SUPPLY."  ID., AT 590.  THE COMMISSION CONCLUDED, ON THE
BASIS OF ITS DETAILED INVESTIGATION OF THE INDUSTRY, THAT "(THE PRIME
CHARACTERISTIC OF THE SITUATION DESCRIBED IS THAT OF A STEADILY
DEVELOPING CONCERT OF INTERESTS DOMINATING THE PRODUCING, TRANSPORTING,
AND DISTRIBUTING BRANCHES OF THE INDUSTRY."  ID., AT 600.  THE HEART OF
THE PROBLEM WAS AT THE PIPELINE END, SINCE THE CONCENTRATION OF
OWNERSHIP THERE ALLOWED THE CONCERT OF INTERESTS "TO DETERMINE THE
AMOUNT OF NATURAL GAS WHICH MAY BE MARKETED BY FIXING THE AMOUNT WHICH
MAY BE TRANSPORTED.  THAT IN TURN GIVES IT POWER TO SAY HOW MUCH SHALL
BE PRODUCED."  IBID.  BASED UPON THESE FINDINGS, THE COMMISSION SINGLED
OUT AS "SPECIFIC EVILS EXISTING IN THE NATURAL-GAS INDUSTRY" BOTH THE
"(UNREGULATED MONOPOLISTIC CONTROL OF CERTAIN NATURAL-GAS PRODUCTION
AREAS" AND THE "(UNREGULATED CONTROL OF PIPELINE TRANSMISSION AND OF
WHOLESALE DISTRIBUTION."  ID., AT 615.  IT CONCLUDED THAT REGULATION,
AT LEAST OF PIPELINES, SEE ID., AT 616, WAS REQUIRED. 

/9/  SEE C. HAWKINS, STRUCTURE OF THE NATURAL GAS PRODUCING
INDUSTRY, AND P. MACAVOY, THE REGULATION-INDUCED SHORTAGE OF NATURAL
GAS, IN REGULATION OF THE NATURAL GAS PRODUCING INDUSTRY 137 - 191 (K.
BROWN ED. 1972).  SEE ALSO STATEMENT OF JOHN N. NASSIKAS, CHAIRMAN,
FEDERAL POWER COMMISSION, HEARING ON THE NATURAL GAS INDUSTRY BEFORE
THE SUBCOMMITTEE ON ANTITRUST AND MONOPOLY OF THE SENATE COMMITTEE ON
THE JUDICIARY, 93D CONG., 1ST SESS., 43 - 72 (1973). 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MARK L. EVANS ARGUED THE CAUSE FOR PETITIONER IN NO. 72 - 1490. 
WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL BORK, LEO E. FORQUER, AND
GEORGE W. MCHENRY, JR. BEN F. VAUGHAN III ARGUED THE CAUSE FOR
PETITIONERS IN NO. 72 - 1491.  WITH HIM ON THE BRIEFS WAS WILLIAM TERRY
BRAY. 

CHRISTOPHER T. BOLAND AND PETER H. SCHIFF ARGUED THE CAUSE FOR
RESPONDENTS IN BOTH CASES.  WITH MR. BOLAND ON THE BRIEF FOR RESPONDENT
INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA WERE JEROME J. MCGRATH
AND ROBERT G. HARDY.  WITH MR. SCHIFF ON THE BRIEF FOR RESPONDENT
PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK WAS RICHARD A.
SOLOMON.  KIRK W. WEINERT AND C. FIELDING EARLY, JR., FILED A BRIEF FOR
RESPONDENT TEXACO INC. KENNETH HEADY, JOHN L. WILLIFORD, CHARLES E.
MCGEE, JOHN T. KETCHAM, AND ROBERT J. HAGGERTY FILED A BRIEF FOR
RESPONDENT PHILLIPS PETROLEUM CO. MELVIN RICHTER AND L.F. CADENHEAD
FILED A BRIEF FOR RESPONDENT TENNESSEE GAS PIPELINE CO., A DIVISION OF
TENNECO INC. EDWARD H. FORGOTSON FILED A BRIEF FOR RESPONDENT
FORGOTSON. 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL IN BOTH CASES WERE FILED
BY L. DAN JONES FOR THE INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA,
AND BY J. EVANS ATWELL AND LYNN R. COLEMAN FOR THE SMALL PRODUCERS
GROUP. 
..END :
























WHEELER V. BARRERA, 417 U.S. 402 


       WHEELER ET AL. V. BARRERA ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

  EIGHTH CIRCUIT

        NO. 73 - 62.  ARGUED JANUARY 16, 1974--DECIDED JUNE 10,

           1974; 475 F.2D 1338, AFFIRMED. 


    TITLE 1 OF THE ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965

  (THE ACT) PROVIDES FOR FEDERAL FUNDING OF SPECIAL PROGRAMS FOR

  EDUCATIONALLY DEPRIVED CHILDREN IN BOTH PUBLIC AND PRIVATE

  SCHOOLS.  RESPONDENTS, PARENTS OF CHILDREN ATTENDING NONPUBLIC

  SCHOOLS IN KANSAS CITY, MO., BROUGHT THIS CLASS ACTION, ALLEGING

  THE PETITIONER STATE SCHOOL OFFICIALS ARBITRARILY AND ILLEGALLY

  WERE APPROVING TITLE I PROGRAMS THAT DEPRIVED ELIGIBLE NONPUBLIC

  SCHOOL CHILDREN OF SERVICES COMPARABLE TO THOSE OFFERED ELIGIBLE

 PUBLIC SCHOOL CHILDREN, AND SEEKING INJUNCTIVE AND OTHER RELIEF. 

  PETITIONERS ANSWERED THAT THE AID SOUGHT BY RESPONDENTS EXCEEDED

  TITLE I'S REQUIREMENTS AND CONTRAVENED THE STATE'S CONSTITUTION

  AND STATE LAW AND PUBLIC POLICY.  FIRST AMENDMENT ISSUES WERE

  ALSO RAISED.  THE DISTRICT COURT DENIED RELIEF.  THE COURT OF

  APPEALS REVERSED AND REMANDED, HOLDING THAT:  PETITIONERS WERE

  VIOLATING THE REQUIREMENT OF THE ACT AND IMPLEMENTING REGULATIONS

  THAT EDUCATIONALLY DEPRIVED NON-PUBLIC SCHOOL CHILDREN BE

  AFFORDED A PROGRAM COMPARABLE TO THAT PROVIDED IN PUBLIC SCHOOLS;

  IF ON-THE-PREMISES SPECIAL TEACHING SERVICES ARE FURNISHED PUBLIC

  SCHOOL CHILDREN, THEN COMPARABLE PROGRAMS MUST BE PROVIDED

  NONPUBLIC SCHOOL CHILDREN; THE STATE CONSTITUTIONAL PROVISION

  BARRING USE OF "PUBLIC" SCHOOL FUNDS IN PRIVATE SCHOOLS DID NOT

  APPLY TO TITLE I FUNDS; THE QUESTION WHETHER TITLE I FUNDS WERE

  "PUBLIC" WITHIN THE MEANING OF THE STATE CONSTITUTION WAS

  GOVERNED BY FEDERAL LAW; AND, SINCE NO PLAN FOR ON-THE-PREMISES

  INSTRUCTION IN NONPUBLIC SCHOOLS HAD YET BEEN IMPLEMENTED, THE

  COURT WOULD REFUSE TO PASS ON PETITIONERS' CLAIMS THAT THE

ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT WOULD BE VIOLATED IF

  TITLE I DOES REQUIRE OR PERMIT SUCH INSTRUCTION.  HELD: 

     1.  AT THIS STAGE OF THE PROCEEDINGS THIS COURT CANNOT REACH

  AND DECIDE WHETHER TITLE I REQUIRES THE ASSIGNMENT OF PUBLICLY

  EMPLOYED TEACHERS TO PROVIDE REMEDIAL INSTRUCTION DURING REGULAR

  SCHOOL HOURS ON THE PREMISES OF PRIVATE SCHOOLS ATTENDED BY TITLE

  I ELIGIBLE STUDENTS.  PP. 415 - 426. 

     (A) WHILE THE COURT OF APPEALS CORRECTLY RULED THAT THE

  DISTRICT COURT ERRED IN DENYING RELIEF WHERE IT CLEARLY APPEARED

  THAT PETITIONERS HAD FAILED TO COMPLY WITH THE ACT'S

  COMPARABILITY REQUIREMENT, THE COURT OF APPEALS' OPINION IS NOT

  TO BE READ TO THE EFFECT THAT PETITIONERS MUST SUBMIT AND APPROVE

  PLANS THAT EMPLOY THE USE OF TITLE I TEACHERS ON PRIVATE SCHOOL

  PREMISES DURING REGULAR SCHOOL HOURS.  P. 415. 

     (B) THAT COURT ERRED IN HOLDING THAT FEDERAL LAW GOVERNED THE

QUESTION WHETHER ON-THE-PREMISES PRIVATE SCHOOL INSTRUCTION IS

  PERMISSIBLE UNDER MISSOURI LAW, SINCE TITLE I ENVINCES A CLEAR

  INTENTION THAT STATE CONSTITUTIONAL SPENDING PROSCRIPTIONS NOT BE

  PRE-EMPTED AS A CONDITION OF ACCEPTING FEDERAL FUNDS.  THE KEY

  ISSUE WHETHER FEDERAL AID IS MONEY "DONATED TO ANY STATE FUND FOR

  PUBLIC SCHOOL PURPOSES" WITHIN THE MEANING OF THE MISSOURI

  CONSTITUTION IS PURELY A QUESTION OF STATE AND NOT FEDERAL LAW,

  AND BY CHARACTERIZING THE PROBLEM AS ONE INVOLVING "FEDERAL" AND

  NOT "STATE" FUNDS, AND THEN CONCLUDING THAT FEDERAL LAW GOVERNS,

  THE COURT OF APPEALS IN EFFECT NULLIFIED THE ACT'S POLICY OF

  ACCOMMODATING STATE LAW.  PP. 415 - 419. 

(C) IT WAS UNNECESSARY FOR THE COURT OF APPEALS TO REACH THE

  ISSUE WHETHER ON-THE-PREMISES NONPUBLIC SCHOOL INSTRUCTION IS

  PERMISSIBLE UNDER STATE LAW, SINCE IN VIEW OF THE FACT THAT TITLE

  I DOES NOT OBLIGATE THE STATE TO PROVIDE SUCH INSTRUCTION BUT

  ONLY TO PROVIDE "COMPARABLE" (NOT IDENTICAL) SERVICES, THE

  ILLEGALITY OF SUCH INSTRUCTION UNDER STATE LAW WOULD NOT PROVIDE

  A DEFENSE TO RESPONDENTS'  CHARGE OF NONCOMPLIANCE WITH TITLE I.

  PP. 419 - 420. 

     (D) ON REMAND, PETITIONERS AND THE LOCAL SCHOOL AGENCY HAVE
THE

  OPTION TO PROVIDE FOR ON-THE-PREMISES INSTRUCTION FOR NONPUBLIC

  SCHOOL CHILDREN, BUT IF THEY DO NOT CHOOSE THIS METHOD OR IF IT

  TURNS OUT THAT STATE LAW PREVENTS ITS USE, THEN THE FOLLOWING

  OPTIONS REMAIN:  (1) THEY MAY APPROVE A PLAN THAT DOES NOT

  UTILIZE NONPUBLIC SCHOOL ON-THE-PREMISES INSTRUCTION BUT THAT

  STILL COMPLIES WITH THE ACT'S COMPARABILITY REQUIREMENT; (2) THEY

  MAY SUBMIT A PLAN THAT ELIMINATES ON-THE-PREMISES INSTRUCTION IN

  PUBLIC SCHOOLS AND MAY RESORT, INSTEAD, TO OTHER MEANS, SUCH AS

  NEUTRAL SITES OR SUMMER PROGRAMS; OR (3) THEY MAY CHOOSE NOT TO

  PARTICIPATE AT ALL IN TITLE I PROGRAM.  PP. 421 - 426. 

     2.  THE COURT OF APPEALS PROPERLY DECLINED TO PASS ON THE
FIRST

  AMENDMENT ISSUE, SINCE, NO ORDER REQUIRING ON-THE-PREMISES

  NONPUBLIC SCHOOL INSTRUCTION HAVING BEEN ENTERED, THE MATTER WAS

  NOT RIPE FOR REVIEW.  PP. 426 - 427. 

     3.  WHILE UNDER THE ACT RESPONDENTS ARE ENTITLED TO COMPARABLE

  SERVICES AND THEREFORE TO RELIEF, THEY ARE NOT ENTITLED TO ANY

  PARTICULAR FORM OF SERVICE, AND IT IS THE ROLE OF STATE AND LOCAL

  AGENCIES, NOT OF THE FEDERAL COURTS, AT LEAST AT THIS STAGE, TO

FORMULATE A SUITABLE PLAN.  PP. 427 - 428. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, POWELL, AND REHNQUIST, JJ.,

JOINED.  POWELL, J., FILED A CONCURRING OPINION, POST, P. 428. 

  WHITE, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P.

  428.  MARSHALL, J., CONCURRED IN THE RESULT.  DOUGLAS, J., FILED

  A DISSENTING OPINION, POST, P. 429. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

TITLE I OF THE ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965, AS
AMENDED, 20 U.S.C. 241A ET SEQ., PROVIDES FOR FEDERAL FUNDING OF
SPECIAL PROGRAMS FOR EDUCATIONALLY DEPRIVED CHILDREN IN BOTH PUBLIC AND
PRIVATE SCHOOLS. 

THIS SUIT WAS INSTITUTED ON BEHALF OF PAROCHIAL SCHOOL STUDENTS WHO
WERE ELIGIBLE FOR TITLE I BENEFITS AND WHO CLAIMED THAT THE PUBLIC
SCHOOL AUTHORITIES IN THEIR AREA, IN VIOLATION OF THE ACT, FAILED TO
PROVIDE ADEQUATE TITLE I PROGRAMS FOR PRIVATE SCHOOL CHILDREN AS
COMPARED WITH THOSE PROGRAMS PROVIDED FOR PUBLIC SCHOOL CHILDREN.  THE
DEFENDANTS ANSWERED THAT THE EXTENSIVE AID SOUGHT BY THE PLAINTIFFS
EXCEEDED THE REQUIREMENTS OF TITLE I AND CONTRAVENED THE STATE'S
CONSTITUTION AND STATE LAW AND PUBLIC POLICY.  FIRST AMENDMENT RIGHTS
WERE ALSO RAISED BY THE PARTIES.  THE DISTRICT COURT, CONCLUDING THAT
THE STATE HAD FULFILLED ITS TITLE I OBLIGATIONS, DENIED RELIEF.  THE
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, BY A DIVIDED
VOTE, REVERSED.  475 F.2D 1338 (1973).  WE GRANTED CERTIORARI TO
EXAMINE SERIOUS QUESTIONS THAT APPEARED TO BE PRESENT AS TO THE SCOPE
AND CONSTITUTIONALITY OF TITLE I. 414 U.S. 908 (1973). 

        I 

TITLE I IS THE FIRST FEDERAL-AID-TO-EDUCATION PROGRAM AUTHORIZING
ASSISTANCE FOR PRIVATE SCHOOL CHILDREN AS WELL AS FOR PUBLIC SCHOOL
CHILDREN.  THE CONGRESS, BY ITS STATUTORY DECLARATION OF POLICY, /1/
AND OTHERWISE, RECOGNIZED THAT ALL CHILDREN FROM EDUCATIONALLY DEPRIVED
AREAS DO NOT NECESSARILY ATTEND THE PUBLIC SCHOOLS, AND THAT, SINCE THE
LEGISLATIVE AIM WAS TO PROVIDE NEEDED ASSISTANCE TO EDUCATIONALLY
DEPRIVED CHILDREN RATHER THAN TO SPECIFIC SCHOOLS, IT WAS NECESSARY TO
INCLUDE ELIGIBLE PRIVATE SCHOOL CHILDREN AMONG THE BENEFICIARIES OF THE
ACT.  /2/ 

SINCE THE ACT WAS DESIGNED TO BE ADMINISTERED BY LOCAL PUBLIC
EDUCATION OFFICIALS, /3/  A NUMBER OF PROBLEMS NATURALLY ARISE IN THE
DELIVERY OF SERVICES TO ELIGIBLE PRIVATE SCHOOL PUPILS.  UNDER THE
ADMINISTRATIVE STRUCTURE ENVISIONED BY THE ACT, THE PRIMARY
RESPONISBILITY FOR DESIGNING AND EFFECTUATING A TITLE I PROGRAM RESTS
WITH WHAT THE ACT AND THE IMPLEMENTING REGULATIONS DESCRIBE AS THE
"LOCAL EDUCATIONAL AGENCY."  /4/  THIS LOCAL AGENCY SUBMITS TO THE
"STATE EDUCATIONAL AGENCY"  /5/  A PROPOSED PROGRAM DESIGNED TO MEET
THE SPECIAL EDUCATIONAL NEEDS OF EDUCATIONALLY DEPRIVED CHILDREN IN
SCHOOL ATTENDANCE AREAS WITH HIGH CONCENTRATIONS OF CHILDREN FROM LOW
INCOME FAMILIES.  THE STATE AGENCY THEN MUST APPROVE THE LOCAL PLAN
AND, IN TURN, FORWARD THE APPROVED PROPOSAL TO THE UNITED STATES
COMMISSIONER OF EDUCATION, WHO HAS THE ULTIMATE RESPONSIBILITY FOR
ADMINISTERING THE PROGRAM AND DISPENSING THE APPROPRIATED AND ALLOCATED
FUNDS.  IN ORDER TO RECEIVE STATE APPROVAL, THE PROPOSED PLAN, AMONG
OTHER REQUIREMENTS, MUST BE DESIGNED TO PROVIDE THE ELIGIBLE PRIVATE
SCHOOL STUDENTS SERVICES THAT ARE "COMPARABLE IN QUALITY, SCOPE, AND
OPPORTUNITY FOR PARTICIPATION TO THOSE PROVIDED FOR PUBLIC SCHOOL
CHILDREN WITH NEEDS OF EQUALLY HIGH PRIORITY."  UNITED STATES OFFICE OF
EDUCATION (USOE) PROGRAM GUIDE NO. 44, 4.5 (1968), /6/  REPRODUCED IN
TITLE I ESEA, PARTICIPATION OF PRIVATE SCHOOL CHILDREN--A HANDBOOK FOR
STATE AND LOCAL SCHOOL OFFICIALS, U.S. DEPT. OF HEALTH, EDUCATION, AND
WELFARE, PUBLICATION NO. (OE) 72 - 62, P. 41 (1971) (HEREINAFTER
REFERRED TO AS THE HANDBOOK). 

THE QUESTIONS THAT ARISE IN THIS CASE CONCERN THE SCOPE OF THE
STATE'S DUTY TO INSURE THAT A PROGRAM SUBMITTED BY A LOCAL AGENCY UNDER
TITLE I PROVIDES "COMPARABLE" SERVICES FOR ELIGIBLE PRIVATE SCHOOL
CHILDREN. 

        II 

PLAINTIFF-RESPONDENTS ARE PARENTS OF MINOR CHILDREN ATTENDING
ELEMENTARY AND SECONDARY NONPUBLIC SCHOOLS IN THE INNER CITY AREA OF
KANSAS CITY, MISSOURI.  THEY INSTITUTED THIS CLASS ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ON BEHALF OF
THEMSELVES AND THEIR CHILDREN, AND OTHERS SIMILARLY SITUATED, ALLEGING
THAT THE DEFENDANT-PETITIONERS, THE THEN STATE COMMISSIONER OF
EDUCATION AND THE MEMBERS OF THE MISSOURI BOARD OF EDUCATION,
ARBITRARILY AND ILLEGALLY WERE APPROVING TITLE I PROGRAMS THAT DEPRIVED
ELIGIBLE NONPUBLIC SCHOOL CHILDREN OF SERVICES COMPARABLE TO THOSE
OFFERED ELIGIBLE PUBLIC SCHOOL CHILDREN.  THE COMPLAINT SOUGHT AN
INJUNCTION RESTRAINING CONTINUED VIOLATIONS OF THE ACT AND AN
ACCOUNTING AND RESTORATION OF SOME $13,000,000 IN TITLE I FUNDS
ALLEGEDLY MISAPPLIED FROM 1966 TO 1969. 

THE DISTRICT COURT INITIALLY DISMISSED THE COMPLAINT ON THE
ALTERNATIVE GROUNDS OF FAILURE TO EXHAUST STATE REMEDIES AND
ABSTENTION.  THE COURT OF APPEALS REVERSED THIS DISMISSAL AND REMANDED
THE CASE FOR TRIAL.  441 F.2D 795 (CA8 1971).  IT OBSERVED, "(WE
INDICATE NO OPINION ON THE MERITS OF THE ALLEGED NONCOMPLIANCE BY THE
STATE OFFICIALS."  ID., AT 801. 

ON REMAND, THE DISTRICT COURT FOUND THAT WHILE MOST OF THE TITLE I
FUNDS ALLOCATED TO PUBLIC SCHOOLS IN MISSOURI WERE USED "TO EMPLOY
TEACHERS TO INSTRUCT IN REMEDIAL SUBJECTS," THE PETITIONERS HAD REFUSED
"TO APPROVE ANY APPLICATIONS ALLOCATING MONEY FOR TEACHERS IN PAROCHIAL
SCHOOLS DURING REGULAR SCHOOL HOURS."  PET. FOR CERT. A40.  THE COURT
DID FIND THAT PETITIONERS IN SOME INSTANCES HAD APPROVED THE USE OF
TITLE I MONEY "TO PROVIDE MOBILE EDUCATIONAL SERVICES AND EQUIPMENT,
VISUAL AIDS, AND EDUCATIONAL RADIO AND TELEVISION IN PAROCHIAL
SCHOOLS.  TEACHERS FOR AFTER-SCHOOL CLASSES, WEEKEND CLASSES, AND
SUMMER SCHOOL CLASSES, ALL OPEN TO PAROCHIAL SCHOOL PUPILS, HAVE ALL
BEEN APPROVED."  ID., AT A40 - A41. 

IN WHAT PERHAPS MAY BE DESCRIBED AS SOMETHING LESS THAN FULL
COOPERATION BY BOTH SIDES, THE POSSIBILITY OF PROVIDING "COMPARABLE"
SERVICES WAS APPARENTLY FRUSTRATED BY THE FACT THAT MANY PAROCHIAL
SCHOOLS WOULD ACCEPT ONLY SERVICES IN THE FORM OF ASSIGNMENT OF
FEDERALLY FUNDED TITLE I TEACHERS TO TEACH IN THOSE SCHOOLS DURING
REGULAR SCHOOL HOURS.  AT THE SAME TIME, THE PETITIONERS REFUSED TO
APPROVE ANY PROGRAM PROVIDING FOR ON-THE-PREMISES INSTRUCTION ON THE
GROUNDS THAT IT WAS FORBIDDEN UNDER BOTH MISSOURI LAW AND THE FIRST
AMENDMENT AND, FURTHERMORE, THAT TITLE I DID NOT REQUIRE IT.  SINCE THE
LARGER PORTION (OVER 65%) OF TITLE I FUNDS ALLOCATED TO MISSOURI HAS
BEEN USED TO PROVIDE PERSONNEL FOR REMEDIAL INSTRUCTION, THE EFFECT OF
THIS STALEMATE IS THAT SUBSTANTIALLY LESS MONEY PER PUPIL HAS BEEN
EXPENDED FOR ELIGIBLE STUDENTS IN PRIVATE SCHOOLS, AND THAT THE
SERVICES PROVIDED IN THOSE SCHOOLS IN NO SENSE CAN BE CONSIDERED
"COMPARABLE."  /7/ 

FACED WITH THIS SITUATION, THE DISTRICT COURT RECOGNIZED THAT "(THIS
HEAD-ON CONFLICT . . . HAS RESULTED IN AN UNDOUBTEDLY INEQUITABLE
EXPENDITURE OF TITLE I FUNDS BETWEEN EDUCATIONALLY DEPRIVED CHILDREN IN
PUBLIC AND NONPUBLIC SCHOOLS IN SOME LOCAL SCHOOL DISTRICTS IN THE
STATE."  ID., AT A41. 

NONETHELESXS, THE DISTRICT COURT DENIED RELIEF.  IT REASONED THAT
SINCE THE PETITIONERS WERE UNDER NO STATUTORY OBLIGATION TO PROVIDE ON
THE-PREMISES NONPUBLIC SCHOOL INSTRUCTION, THE FAILURE TO PROVIDE THAT
INSTRUCTION COULD NOT VIOLATE THE ACT.  THE COURT FURTHER REASONED THAT
SINCE THE PETITIONERS APPARENTLY HAD APPROVED ALL PROGRAMS "EXCEPT
THOSE REQUESTING SALARIED TEACHERS IN THE NONPUBLIC SCHOOLS," ID., AT
A43, THEY HAD FULFILLED THEIR COMMITMENT.  THE COURT DID NOT DIRECTLY
CONSIDER WHETHER PROGRAMS IN EFFECT WITHOUT ON-THE-PREMISES PRIVATE
SCHOOL INSTRUCTION COMPLIED WITH THE COMPARABILITY REQUIREMENT DESPITE
GROSS DISPARITY IN THE SERVICES DELIVERED. 

THE COURT OF APPEALS REVERSED.  IT TRACED THE LEGISLATIVE HISTORY OF
TITLE I, EXAMINED THE LANGUAGE OF THE STATUTE AND THE REGULATIONS, AND
NOTED "THAT THE ACT AND THE REGULATIONS REQUIRE A PROGRAM FOR
EDUCATIONALLY DEPRIVED NON-PUBLIC SCHOOL CHILDREN THAT IS COMPARABLE IN
QUALITY, SCOPE AND OPPORTUNITY, WHICH MAY OR MAY NOT NECESSARILY BE
EQUAL IN DOLLAR EXPENDITURES TO THAT PROVIDED IN THE PUBLIC SCHOOLS." 
475 F.2D, AT 1344.  THE COURT THEN OBSERVED THAT THE ACT DOES NOT
MANDATE THAT SERVICES TAKE ANY PARTICULAR FORM AND THAT, WITHIN THE
CONFINES OF THE COMPARABILITY REQUIREMENT, THE ACT LEFT TO THE STATE
AND LOCAL AGENCIES THE TASK OF DESIGNING A PROGRAM BEST SUITED TO MEET
THE PARTICULARIZED NEEDS OF BOTH THE PUBLIC SCHOOL CHILDREN AND THE
NONPUBLIC SCHOOL CHILDREN IN THE AREA.  AFTER REVIEWING THE UNIQUE
SITUATION EXISTING IN MISSOURI, WHERE FUNDS WERE GROSSLY MALAPPORTIONED
DUE TO THE REFUSAL TO EMPLOY EITHER DUAL ENROLLMENT OR TITLE I TEACHERS
ON PRIVATE SCHOOL PREMISES,  /8/  THE COURT CONCLUDED THAT THE
PETITIONERS WERE IN VIOLATION OF THE COMPARABILITY REQUIERMENT: 

"THUS, WE FIND THAT WHEN THE NEED OF EDUCATIONALLY

  DISADVANTAGED CHILDREN REQUIRES IT, TITLE I AUTHORIZES SPECIAL

TEACHING SERVICES, AS CONTEMPLATED WITHIN THE ACT AND

REGULATIONS, TO BE FURNISHED BY THE PUBLIC AGENCY ON PRIVATE AS

  WELL AS PUBLIC SCHOOL PREMISES.  IN OTHER WORDS, WE THINK IT

  CLEAR THAT THE ACT DEMANDS THAT IF SUCH SPECIAL SERVICES ARE

  FURNISHED PUBLIC SCHOOL CHILDREN, THEN COMPARABLE PROGRAMS, IF

  NEEDED, MUST BE PROVIDED THE DISADVANTAGED PRIVATE SCHOOL

  CHILD."  ID., AT 1353. 

IN RESPONSE TO PETITIONERS' ARGUMENT THAT MISSOURI LAW FORBIDS
SENDING PUBLIC SCHOOL TEACHERS INTO PRIVATE SCHOOLS, THE COURT HELD
THAT THE STATE CONSTITUTIONAL PROVISION BARRING USE OF "PUBLIC" SCHOOL
FUNDS IN PRIVATE SCHOOLS HAD NO APPLICATION TO TITLE I FUNDS.  THE
COURT REASONED THAT ALTHOUGH THE ACT WAS GENERALLY TO BE ACCOMMODATED
TO STATE LAW, THE QUESTION WHETHER TITLE I FUNDS WERE "PUBLIC,"  WITHIN
THE MEANING OF THE MISSOURI CONSTITUTION, /9/  MUST NECESSARILY BE
DECIDED BY FEDERAL LAW.  ID., AT 1351 - 1353.  FINALLY, THE COURT
REFUSED TO PASS ON PETITIONERS'  CLAIM THAT THE ESTABLISHMENT CLAUSE OF
THE FIRST AMENDMENT WOULD BE VIOLATED IF TITLE I, IN FACT, DOES REQUIRE
OR PERMIT SERVICE BY PUBLIC SCHOOL TEACHERS ON PRIVATE SCHOOL
PREMISES.  THE REASON STATED FOR THE COURT'S REFUSAL WAS THAT SINCE NO
PLAN HAD YET BEEN IMPLEMENTED, THE COURT "MUST REFRAIN FROM PASSING
UPON IMPORTANT CONSTITUTIONAL QUESTIONS ON AN ABSTRACT OR HYPOTHETICAL
BASIS."  ID., AT 1354. 

THE DISSENT ARTUED THAT ALTHOUGH TITLE I PERMITS THE ASSIGNMENT OF
TITLE I TEACHERS TO NONPUBLIC SCHOOLS, IT DOES NOT MANDATE THAT
ASSIGNMENT, AND THAT IF THE ACT IS TO BE READ AS EMBRACING SUCH A
MANDATE, IT WOULD PRESENT SUBSTANTIAL FIRST AMENDMENT PROBLEMS THAT
COULD NOT BE AVOIDED.  ID., AT 1358 - 1359.  /10/

        III 

IN THIS COURT THE PARTIES ARE AT ODDS OVER TWO ISSUES:  FIRST,
WHETHER ON THIS RECORD TITLE I REQUIRES THE ASSIGNMENT OF PUBLICLY
EMPLOYED TEACHERS TO PROVIDE REMEDIAL INSTRUCTION DURING REGULAR SCHOOL
HOURS ON THE PREMISES OF PRIVATE SCHOOLS ATTENDED BY TITLE I ELIGIBLE
STUDENTS, AND, SECOND, WHETHER THAT REQUIREMENT, IF IT EXISTS,
CONTRAVENES THE FIRST AMENDMENT.  WE CONCLUDE THAT WE CANNOT REACH AND
DECIDE EITHER ISSUE AT THIS STAGE OF THE PROCEEDINGS. 

A. TITLE I REQUIREMENTS.  AS THE CASE WAS PRESENTED TO THE DISTRICT
COURT, PETITIONERS CLEARLY HAD FAILED TO MEET THEIR STATUTORY
COMMITMENT TO PROVIDE COMPARABLE SERVICES /11/  TO CHILDREN IN
NONPUBLIC SCHOOLS.  THE SERVICES PROVIDED TO THE CLASS OF CHILDREN
REPRESENTED BY RESPONDENTS WERE PLAINLY INFERIOR, BOTH QUALITATIVELY
AND QUANTITATIVELY, AND THE COURT OF APPEALS WAS CORRECT IN RULING THAT
THE DISTRICT COURT ERRED IN REFUSING TO ORDER RELIEF.  BUT THE OPINION
OF THE COURT OF APPEALS IS NOT TO BE READ TO THE EFFECT THAT
PETITIONERS MUST SUBMIT AND APPROVE PLANS THAT EMPLOY THE USE OF TITLE
I TEACHERS ON PRIVATE SCHOOL PREMISES DURING REGULAR SCHOOL HOURS. 

THE LEGISLATIVE HISTORY, THE LANGUAGE OF THE ACT, AND THE
REGULATIONS CLEARLY REVEAL THE INTENT OF CONGRESS TO PLACE PLENARY
RESPONSIBILITY IN LOCAL AND STATE AGENCIES FOR THE FORMULATION OF
SUITABLE PROGRAMS UNDER THE ACT.  THERE WAS A PRONOUNCED AVERSION IN
CONGRESS TO "FEDERALIZATION"  OF LOCAL EDUCATIONAL DECISIONS. 

"IT IS THE INTENTION OF THE PROPOSED LEGISLATION NOT TO PRESCRIBE
THE SPECIFIC TYPES OF PROGRAMS OR PROJECTS THAT WILL BE REQUIRED IN
SCHOOL DISTRICTS.  RATHER, SUCH MATTERS ARE LEFT TO THE DISCRETION AND
JUDGMENT OF THE LOCAL PUBLIC EDUCATIONAL AGENCIES SINCE EDUCATIONAL
NEEDS AND REQUIREMENTS FOR STRENGTHENING EDUCATIONAL OPPORTUNITIES FOR
EDUCATIONALLY DEPRIVED ELEMENTARY AND SECONDARY SCHOOL PUPILS WILL VARY
FROM STATE TO STATTE AND DISTRICT TO DISTRICT."  H.R. REP. NO. 143,
89TH CONG., 1ST SESS., 5 (1965); S. REP. NO. 146, 89TH CONG., 1ST
SESS., 9 (1965).  AND 20 U.S.C. 1232A PROVIDES, INTER ALIA: 

  "NO PROVISION OF . . . THE ELEMENTARY AND SECONDARY EDUCATION

  ACT OF 1965 . . . SHALL BE CONSTRUED TO AUTHORIZE ANY DEPARTMENT,

  AGENCY, OFFICER, OR EMPLOYEE OF THE UNITED STATES TO EXERCISE ANY

  DIRECTION, SUPERVISION, OR CONTROL OVER THE CURRICULUM, PROGRAM

  OF INSTRUCTION, ADMINISTRATION, OR PERSONNEL OF ANY EDUCATIONAL

  INSTITUTION, SCHOOL, OR SCHOOL SYSTEM . . . ." 

ALTHOUGH THIS CONCERN WAS DIRECTED PRIMARILY AT THE POSSIBILITY OF
HEW'S ASSUMING THE ROLE OF A NATIONAL SCHOOL BOARD, IT HAS EQUAL
APPLICATION TO THE POSSIBILITY OF A FEDERAL COURT'S PLAYING AN OVERLY
ACTIVE ROLE IN SUPERVISING THE MANNER OF TITLE I EXPENDITURES.     AT
THE OUTSET, WE BELIEVE THAT THE COURT OF APPEALS ERRED IN HOLDING THAT
FEDERAL LAW GOVERNED THE QUESTION WHETHER ON-THE-PREMISES PRIVATE
SCHOOL INSTRUCTION IS PERMISSIBLE UNDER MISSOURI LAW.  WHATEVER THE
CASE MIGHT BE IF THERE WERE NO EXPRESSION OF SPECIFIC CONGRESSIONAL
INTENT, /12/  TITLE I EVINCES A CLEAR INTENTION THAT STATE
CONSTITUTIONAL SPENDING PROSCRIPTIONS NOT BE PRE-EMPTED AS A CONDITION
OF ACCEPTING FEDERAL FUNDS.  /13/  THE KEY ISSUE, NAMELY, WHETHER
FEDERAL AID IS MONEY "DONATED TO ANY STATE FUND FOR PUBLIC SCHOOL
PURPOSES," WITHIN THE MEANING OF THE MISSOURI CONSTITUTION, ART. 9, 5,
IS PURELY A QUESTION OF STATE AND NOT FEDERAL LAW.  BY CHARACTERIZING
THE PROBLEM AS ONE INVOLVING "FEDERAL" AND NOT "STATE" FUNDS, AND THEN
CONCLUDING THAT FEDERAL LAW GOVERNS, THE COURT OF APPEALS, WE FEEL, IN
EFFECT NULLIFIED THE ACT'S POLICY OF ACCOMMODATING STATE LAW.  THE
CORRECT RULE IS THAT THE "FEDERAL LAW" UNDER TITLE I IS TO THE EFFECT
THAT STATE LAW SHOULD NOT BE DISTURBED.  IF IT IS DETERMINED,
ULTIMATELY, THAT THE PETITIONERS' POSITION IS A CORRECT EXPOSITION OF
MISSOURI LAW, TITLE I REQUIRES, NOT THAT THAT LAW BE PRE-EMPTED, BUT,
RATHER, THAT IT BE ACCOMMODATED BY THE USE OF SERVICES NOT PROSCRIBED
UNDER STATE LAW.  THE QUESTION WHETHER MISSOURI LAW PROHIBITS THE USE
OF TITLE I FUNDS FOR ON-THE-PERMISES PRIVATE SCHOOL INSTRUCTION IS
STILL UNRESOLVED.  SEE N. 9, SUPRA. 

FURTHERMORE, IN THE PRESENT POSTURE OF THIS CASE, IT WAS UNNECESSARY
FOR THE FEDERAL COURT EVEN TO REACH THE ISSUE WHETHER ON-THE-PREMISES
PAROCHIAL SCHOOL INSTRUCTION IS PERMISSIBLE UNDER STATE LAW.  THE STATE
LAW QUESTION APPEARED IN THE CASE BY WAY OF PETITIONERS' DEFENSE THAT
IT COULD NOT PROVIDE ON-THE-PREMISES SERVICES BECAUSE IT WAS PROHIBITED
BY THE STATE'S CONSTITUTION.  BUT, AS IS DISCUSSED MORE FULLY BELOW,
THE STATE IS NOT OBLIGATED BY TITLE I TO PROVIDE ON-THE-PREMISES
INSTRUCTION.  THE MANDATE IS TO PROVIDE "COMPARABLE" SERVICES. 
ASSUMING, ARGUENDO, THAT STATE LAW DOES PROHIBIT ON-THE-PREMISES
INSTRUCTION, THIS WOULD NOT PROVIDE A DEFENSE TO RESPONDENTS'
COMPLAINT THAT COMPARABLE SERVICES ARE NOT BEING PROVIDED.  THE CHOICE
OF PROGRAMS IS LEFT TO THE STATE WITH THE PROVISO THAT COMPARABLE (NOT
IDENTICAL) PROGRAMS ARE ALSO MADE AVAILABLE TO ELIGIBLE PRIVATE SCHOOL
CHILDREN.  IF ONE FORM OF SERVICES TO PAROCHIAL SCHOOL CHILDREN IS
RENDERED UNAVAILABLE BECAUSE OF STATE CONSTITUTIONAL PROSCRIPTIONS, THE
SOLUTION IS TO EMPLOY AN ACCEPTABLE ALTERNATIVE FORM.  IN SHORT, SINCE
THE ILLEGALITY UNDER STATE LAW OF ON-THE-PREMISES INSTRUCTION WOULD NOT
PROVIDE A DEFENSE TO RESPONDENTS' CHARGE OF NONCOMPLIANCE WITH TITLE I,
THERE WAS NO REASON FOR THE COURT OF APPEALS TO REACH THIS ISSUE.  BY
DECIDING THAT ON-THE-PREMISES INSTRUCTION WAS NOT BARRED BY STATE LAW,
THE COURT IN EFFECT ISSUED AN ADVISORY OPINION.  EVEN APART FROM
TRADITIONAL POLICIES OF ABSTENTION AND COMITY, IT WAS UNNECESSARY TO
DECIDE THIS QUESTION IN THE CURRENT POSTURE OF THE CASE. 

THE COURT OF APPEALS PROPERLY RECOGNIZED, AS WE HAVE NOTED, THAT
PETITIONERS FAILED TO MEET THEIR BROAD OBLIGATION AND COMMITMENT UNDER
THE ACT TO PROVIDE COMPARABLE PROGRAMS.  /14/  "COMPARABLE," HOWEVER,
DOES NOT MEAN "IDENTICAL," AND, CONTRARY TO THE ASSERTIONS OF BOTH
SIDES, WE DO NOT READ THE COURT OF APPEALS' OPINION OR, FOR THAT
MATTER, THE ACT ITSELF, AS EVER REQUIRING THAT IDENTICAL SERVICES BE
PROVIDED IN NONPUBLIC SCHOOLS.  /15/  CONGRESS RECOGNIZED THAT THE
NEEDS OF EDUCATIONALLY DEPRIVED CHILDREN ATTENDING NONPUBLIC SCHOOLS
MIGHT BE DIFFERENT FROM THOSE OF SIMILAR CHILDREN IN PUBLIC SCHOOLS; IT
WAS ALSO RECOGNIZED THAT IN SOME STATES CERTAIN PROGRAMS FOR PRIVATE
AND PAROCHIAL SCHOOLS WOULD BE LEGALLY IMPOSSIBLE BECAUSE OF STATE
CONSTITUTIONAL RESTRICTIONS,, MOST NOTABLY IN THE CHURCH-STATE AREA. 
SEE N. 9, SUPRA.  /16/  TITLE I WAS NOT INTENDED TO OVERRIDE THESE
INDIVIDUALIZED STATE RESTRICTIONS.  RATHER, THERE WAS A CLEAR INTENTION
THAT THE ASSISTANCE PROGRAMS BE DESIGNED ON LOCAL LEVELS SO AS TO
ACCOMMODATE THE RESTRICTIONS. 

INASMUCH AS COMPARABLE, AND NOT IDENTICAL, SERVICES ARE REQUIRED,
THE MERE FACT THAT PUBLIC SCHOOL CHILDREN ARE PROVIDED ON-THE-PREMISES
TITLE I INSTRUCTION DOES NOT NECESSARILY CREATE AN OBLIGATION TO MAKE
IDENTICAL PROVISION FOR PRIVATE SCHOOL CHILDREN.  /17/  CONGRESS
EXPRESSLY RECOGNIZED THAT DIFFERENT AND UNIQUE PROBLEMS AND MEEDS MIGHT
MAKE IT APPROPRIATE TO UTILIZE DIFFERENT PROGRAMS IN THE PRIVATE
SCHOOLS.  A REQUIREMENT OF IDENTITY WOULD RUN DIRECTLY COUNTER TO THIS
RECOGNITION.  IT WAS ANTICIPATED, TO BE SURE, THAT ONE OF THE OPTIONS
OPEN TO THE LOCAL AGENCY IN DESIGNING A SUITABLE PROGRAM FOR PRIVATE
SCHOOL CHILDREN WAS THE PROVISION OF ON-THE-PREMISES INSTRUCTION, /18/
AND ON REMAND THIS IS AN OPTION OPEN TO PETITIONERS AND THE LOCAL
AGENCY.  IF, HOWEVER, PETITIONERS CHOOSE NOT TO PURSUE THIS METHOD, OR
IF IT TURNS OUT THAT STATE LAW PREVENTS ITS USE, THREE BROAD OPTIONS
STILL REMAIN: 

FIRST, THE STATE MAY APPROVE PLANS THAT DO NOT UTILIZE ON-THE
PREMISES PRIVATE SCHOOL TITLE I INSTRUCTION BUT, NONETHELESS, STILL
MEASURE UP TO THE REQUIREMENT OF COMPARABILITY.  RESPONDENTS APPEAR TO
BE ARGUING HERE THAT IT IS IMPOSSIBLE TO PROVIDE "COMPARABLE" SERVICES
IF THE PUBLIC SCHOOLS RECEIVE ON-THE-PREMISES TITLE I INSTRUCTION WHILE
PRIVATE SCHOOL CHILDREN ARE REACHED IN AN ALTERNATIVE METHOD.  IN
SUPPORT OF THEIR POSITION, RESPONDENTS ARGUE, "THE MOST EFFECTIVE TYPE
OF SERVICES IS THAT PROVIDED BY A TEACHER OR OTHER SPECIALIST DURING
REGULAR SCHOOL HOURS.  THERE IS NOTHING COMPARABLE TO THE SERVICES OF
PERSONNEL EXCEPT THE SERVICES OF PERSONNEL."  BRIEF FOR RESPONDENTS
49.  IN ESSENCE, RESPONDENTS ARE ASKING THIS COURT TO HOLD, AS A MATTER
OF FEDERAL LAW, THAT ONE MODE OF DELIVERING REMEDIAL TITLE I SERVICES
IS SUPERIOR TO OTHERS.  TO PLACE ON THIS COURT, OR ON ANY FEDERAL
COURT, THE RESPONSIBILITY OF RULING ON THE RELATIVE MERITS OF VARIOUS
POSSIBLE TITLE I PROGRAMS SERIOUSLY MISREADS THE CLEAR INTENT OF
CONGRESS TO LEAVE DECISIONS OF THAT KIND TO THE LOCAL AND STATE
AGENCIES.  IT IS UNTHINKABLE, BOTH IN TERMS OF THE LEGISLATIVE HISTORY
AND THE BASIC STRUCTURE OF THE FEDERAL JUDICIARY, THAT THE COURTS BE
GIVEN THE FUNCTION OF MEASURING THE COMPARATIVE DESIRABILITY OF VARIOUS
PEDAGOGICAL METHODS CONTEMPLATED BY THE ACT. 

IN LIGHT OF THE UNCONTESTED STATUTORY PROSCRIPTION IN MISSOURI
AGAINST DUAL ENROLLMENT, IT MAY WELL BE A SIGNIFICANT CHALLENGE TO
THESE PETITIONERS AND THE LOCAL AGENCIES IN THEIR STATE TO DEVISE PLANS
THAT UTILIZE ON-THE-PREMISES PUBLIC SCHOOL INSTRUCTION AND, AT THE SAME
TIME, FORGO ON-THE-PREMISES PRIVATE SCHOOL INSTRUCTION.  WE CANNOT SAY,
HOWEVER, THAT THIS IS AN IMPOSSIBILITY; BY RELYING UPON "THE INITIATIVE
OF SCHOOL ADMINISTRATORS TO DEVELOP A PROGRAM THAT WOULD MEET THE
FEDERAL (COMPARABILITY) REQUIREMENTS," HANDBOOK 20, IT MAY WELL BE
POSSIBLE TO DEVELOP AND SUBMIT AN ACCEPTABLE PLAN UNDER TITLE I. 

OF COURSE, THE COOPERATION AND ASSISTANCE OF THE OFFICIALS OF THE
PRIVATE SCHOOL ARE OBVIOUSLY EXPECTED AND REQUIRED IN ORDER TO DESIGN A
PROGRAM THAT IS SUITABLE FOR THE PRIVATE SCHOOL.  IT IS CLEAR, HOWEVER,
THAT THE ACT PLACES ULTIMATE RESPONSIBILITY AND CONTROL WITH THE PUBLIC
AGENCY, AND THE OVERALL PROGRAM IS NOT TO BE DEFEATED SIMPLY BECAUSE
THE PRIVATE SCHOOL REFUSES TO PARTICIPATE UNLESS THE AID IS OFFERED IN
THE PARTICULAR FORM IT REQUESTS.  THE PRIVATE SCHOOL MAY REFUSE TO
PARTICIPATE IF THE LOCAL PROGRAM DOES NOT MEET WITH ITS APPROVAL.  BUT
THE RESULT OF THIS WOULD THEN BE THAT THE PRIVATE SCHOOL'S ELIGIBLE
CHILDREN, THE DIRECT AND INTENDED BENEFICIARIES OF THE ACT, WOULD
LOSE.  THE ACT, HOWEVER, DOES NOT GIVE THE PRIVATE SCHOOL A VETO POWER
OVER THE PROGRAM SELECTED BY THE LOCAL AGENCY.  /19/ 

IN SUM, ALTHOUGH IT MAY BE DIFFICULT, IT IS NOT IMPOSSIBLE UNDER THE
ACT TO DEVISE AND IMPLEMENT A LEGAL LOCAL TITLE I PROGRAM WITH
COMPARABLE SERVICES DESPITE THE USE OF ON-THE-PREMISES INSTRUCTION IN
THE PUBLIC SCHOOLS BUT NOT IN THE PRIVATE SCHOOLS.  ON THE FACTS OF
THIS CASE, PETITIONERS HAVE BEEN APPROVING PLANS THAT DO NOT MEET THIS
REQUIREMENT, AND CERTAINLY, IF PUBLIC SCHOOL CHILDREN CONTINUE TO
RECEIVE ON-THE-PREMISES TITLE I INSTRUCTION, PETITIONERS SHOULD NOT
APPROVE PLANS THAT FAIL TO MAKE A GENUINE EFFORT TO EMPLOY COMPARABLE
ALTERNATIVE PROGRAMS THAT MAKE UP FOR THE LACK OF ON-THE-PREMISES
INSTRUCTION FOR THE NONPUBLIC SCHOOL CHILDREN.  A PROGRAM WHICH
PROVIDES INSTRUCTION AND EQUIPMENT TO THE PUBLIC SCHOOL CHILDREN AND
THE SAME EQUIPMENT BUT NO INSTRUCTION TO THE PRIVATE SCHOOL CHILDREN
CANNOT, ON ITS FACE, BE COMPARABLE.  IN ORDER TO EQUALIZE THE LEVEL AND
QUALITY OF SERVICES OFFERED, SOMETHING MUST BE SUBSTITUTED FOR THE
PRIVATE SCHOOL CHILDREN.  THE ALTERNATIVES ARE NUMEROUS.  /20/
PROVIDING NOTHING TO FILL THE GAP, HOWEVER, IS NOT AMONG THE ACCEPTABLE
ALTERNATIVES. 

SECOND, IF THE STATE IS UNWILLING OR UNABLE TO DEVELOP A PLAN WHICH
IS COMPARABLE, WHILE USING TITLE I TEACHERS IN PUBLIC BUT NOT IN
PRIVATE SCHOOLS, IT MAY DEVELOP AND SUBMIT AN ACCEPTABLE PLAN WHICH
ELIMINATES THE USE OF ON-THE-PREMISES INSTRUCTION IN THE PUBLIC SCHOOLS
AND, INSTEAD, RESORTS TO OTHER MEANS, SUCH AS NEUTRAL SITES OR SUMMER
PROGRAMS THAT ARE LESS LIKELY TO GIVE RISE TO THE GROSS DISPARITY
PRESENT IN THIS CASE. 

THIRD, AND UNDOUBTEDLY LEAST ATTRACTIVE FOR THE EDUCATIONALLY
DEPRIVED CHILDREN, IS NONPARTICIPATION IN THE PROGRAM.  INDEED, UNDER
THE ACT, THE COMMISSIONER, SUBJECT TO JUDICIAL REVIEW, 20 U.S.C. 241K,
MAY REFUSE TO PROVIDE FUNDS IF THE STATE DOWS NOT MAKE A BONA FIDE
EFFORT TO FORMULATE PROGRAMS WITH COMPARABLE SERVICES.  20 U.S.C.
241J. 

B. FIRST AMENDMENT.  THE SECOND MAJOR ISSUE IS WHETHER THE
ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT PROHIBITS MISSOURI FROM
SENDING PUBLIC SCHOOL TEACHERS PAID WITH TITLE I FUNDS INTO PAROCHIAL
SCHOOLS TO TEACH REMEDIAL COURSES.  THE COURT OF APPEALS DECLINED TO
PASS ON THIS SIGNIFICANT ISSUE, NOTING THAT SINCE NO ORDER HAD BEEN
ENTERED REQUIRING ON-THE-PREMISES PAROCHIAL SCHOOL INSTRUCTION, THE
MATTER WAS NOT RIPE FOR REVIEW.  WE AGREE.  AS HAS BEEN POINTED OUT
ABOVE, IT IS POSSIBLE FOR THE PETITIONERS TO COMPLY WITH TITLE I
WITHOUT UTILIZING ON-THE-PREMISES PAROCHIAL SCHOOL INSTRUCTION. 
MOREOVER, EVEN IF, ON REMAND, THE STATE AND LOCAL AGENCIES DO EXERCISE
THEIR DISCRETION IN FAVOR OF SUCH INSTRUCTION, THE RANGE OF
POSSIBILITIES IS A BROAD ONE AND THE FIRST AMENDMENT IMPLICATIONS MAY
VARY ACCORDING TO THE PRECISE CONTOURS OF THE PLAN THAT IS FORMULATED. 
FOR EXAMPLE, A PROGRAM WHEREBY A FORMER PAROCHIAL SCHOOL TEACHER IS
PAID WITH TITLE I FUNDS TO TEACH FULL TIME IN A PAROCHIAL SCHOOL
UNDOUBTEDLY WOULD PRESENT QUITE DIFFERENT PROBLEMS THAN IF A PUBLIC
SCHOOL TEACHER, SOLELY UNDER PUBLIC CONTROL, IS SENT INTO A PAROCHIAL
SCHOOL TO TEACH SPECIAL REMEDIAL COURSES A FEW HOURS A WEEK.  AT THIS
TIME WE INTIMATE NO VIEW AS TO THE ESTABLISHMENT CLAUSE EFFECT OF ANY
PARTICULAR PROGRAM. 

THE TASK OF DECIDING WHEN THE ESTABLISHMENT CLAUSE IS IMPLICATED IN
THE CONTEXT OF PAROCHIAL SCHOOL AID HAS PROVED TO BE A DELICATE ONE FOR
THE COURT.  USUALLY IT REQUIRES A CAREFUL EVALUATION OF THE FACTS OF
THE PARTICULAR CASE.  SEE, E.G., LEMON V. KURTZMAN, 403 U.S. 602
(1971), AND TILTON V. RICHARDSON, 403 U.S. 672 (1971).  IT WOULD BE
WHOLLY INAPPROPRIATE FOR US TO ATTEMPT TO RENDER AN OPINION ON THE
FIRST AMENDMENT ISSUE WHEN NO SPECIFIC PLAN IS BEFORE US.  A FEDERAL
COURT DOES NOT SIT TO RENDER A DECISION ON HYPOTHETICAL FACTS, AND THE
COURT OF APPEALS WAS CORRECT IN SO CONCLUDING. 

THE COURT OF APPEALS DISPOSED OF THE CASE AS FOLLOWS: 

     "THE CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO

  ENJOIN THE DEFENDANTS FROM FURTHER VIOLATION OF TITLE I OF ESEA,

  AND IT IS FURTHER ORDERED THAT THE COURT RETAIN CONTINUING

JURISDICTION OF THE LITIGATION FOR THE PURPOSE OF REQUIRING,

  WITHIN REASONABLE TIME LIMITS, THE IMPOSITION AND APPLICATION OF

  GUIDELINES WHICH WILL COMPORT WITH TITLE I AND ITS REGULATIONS. 

  SUCH GUIDELINES MUST PROVIDE THE LAWFUL MEANS AND MACHINERY FOR

  EFFECTIVELY ASSURING EDUCATIONALLY DISADVANTAGED NON-PUBLIC

  SCHOOL CHILDREN IN MISSOURI PARTICIPATION IN A MEANINGFUL PROGRAM

  AS CONTEMPLATED WITHIN THE ACT WHICH IS COMPARABLE IN SIZE, SCOPE

  AND OPPORTUNITY TO THAT PROVIDED ELIGIBLE PUBLIC SCHOOL

  CHILDREN.  SUCH GUIDELINES SHALL BE INCORPORATED INTO AN

  APPROPRIATE INJUNCTIVE DECREE BY THE DISTRICT COURT."  475 F.2D,

AT 1355 - 1356 (FOOTNOTES OMITTED). 

WE AFFIRM THIS DISPOSITION WITH THE UNDERSTANDING THAT PETITIONERS WILL
BE GIVEN THE OPPORTUNITY TO SUBMIT GUIDELINES INSURING THAT ONLY THOSE
PROJECTS THAT COMPLY WITH THE ACT'S REQUIREMENTS AND THIS OPINION WILL
BE APPROVED AND SUBMITTED TO THE COMMISSION.  IT IS ALSO TO BE
UNDERSTOOD THAT THE DISTRICT COURT'S FUNCTION IS NOT TO DECIDE WHICH
METHOD IS BEST, OR TO ORDER THAT A SPECIFIC FORM OF SERVICE BE
PROVIDED.  RATHER, THE DISTRICT COURT IS SIMPLY TO ASSURE THAT THE
STATE AND LOCAL AGENCIES FULFILL THEIR PART OF THE TITLE I CONTRACT IF
THEY CHOOSE TO ACCEPT TITLE I FUNDS.  CF. LAU V. NICHOLS, 414 U.S. 563
(1974).  THE COMPARABILITY MANDATE IS A BROAD ONE, AND IN ORDER TO
IMPLEMENT THE OVERRIDING CONCERN WITH LOCALIZED CONTROL OF TITLE I
PROGRAMS, THE DISTRICT COURT SHOULD MAKE EVERY EFFORT TO DEFER TO THE
JUDGMENT OF THE PETITIONERS AND OF THE LOCAL AGENCY.  UNDER THE ACT,
RESPONDENTS ARE ENTITLED TO COMPARABLE SERVICES, AND THEY ARE,
THEREFORE, ENTITLED TO RELIEF.  AS WE HAVE STATED REPEATEDLY HEREIN,
THEY ARE NOT ENTITLED TO ANY PARTICULAR FORM OF SERVICE, AND IT IS THE
ROLE OF THE STATE AND LOCAL AGENCIES, AND NOT OF THE FEDERAL COURTS, AT
LEAST AT THIS STAGE, TO FORMULATE A SUITABLE PLAN.     ON THIS BASIS,
THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  "IN RECOGNITION OF THE SPECIAL EDUCATIONAL NEEDS OF CHILDREN OF
LOW-INCOME FAMILIES AND THE IMPACT THAT CONCENTRATIONS OF LOW-INCOME
FAMILIES HAVE ON THE ABILITY OF LOCAL EDUCATIONAL AGENCIES TO SUPPORT
ADEQUATE EDUCATIONAL PROGRAMS, THE CONGRESS HEREBY DECLARES IT TO BE
THE POLICY OF THE UNITED STATES TO PROVIDE FINANCIAL ASSISTANCE (AS SET
FORTH IN THE FOLLOWING PARTS OF THIS SUBCHAPTER) TO LOCAL EDUCATIONAL
AGENCIES SERVING AREAS WITH CONCENTRATIONS OF CHILDREN FROM LOW-INCOME
FAMILIES TO EXPAND AND IMPROVE THEIR EDUCATIONAL PROGRAMS BY VARIOUS
MEANS (INCLUDING PRESCHOOL PROGRAMS) WHICH CONTRIBUTE PARTICULARLY TO
MEETING THE SPECIAL EDUCATIONAL NEEDS OF EDUCATIONALLY DEPRIVED
CHILDREN."  20 U.S.C. 541A. 

/2/  THE IMPLEMENTING REGULATIONS, 45 CFR 116.1, SET FORTH A NUMBER
OF DEFINITIONS, SOME IN COMMON WITH, AND OTHERS IN ADDITION TO, THE
DEFINITIONS CONTAINED IN THE ACT ITSELF, 20 U.S.C. 244.  THEY DRAW NO
DISTINCTION BETWEEN PUBLIC AND NONPUBLIC SCHOOL CHILDREN. 
SPECIFICALLY: 

"'EDUCATIONALLY DEPRIVED CHILDREN' MEANS THOSE CHILDREN WHO HAVE
NEED FOR SPECIAL EDUCATIONAL ASSISTANCE IN ORDER THAT THEIR LEVEL OF
EDUCATIONAL ATTAINMENT MAY BE RAISED TO THAT APPROPRIATE FOR CHILDREN
OF THEIR AGE.  THE TERM INCLUDES CHILDREN WHO ARE HANDICAPPED OR WHOSE
NEEDS FOR SUCH SPECIAL EDUCATIONAL ASSISTANCE RESULT FROM POVERTY,
NEGLECT, DELINQUENCY, OR CULTURAL OR LINGUISTIC ISOLATION FROM THE
COMMUNITY AT LARGE."  45 CFR 116.1 (I). 

/3/  IN ORDER FOR A LOCAL TITLE I PROPOSAL TO BE APPROVED AND A GRANT
RECEIVED, THE LOCAL AGENCY MUST GIVE "SATISFACTORY ASSURANCE THAT THE
CONTROL OF FUNDS PROVIDED UNDER THIS SUBCHAPTER, AND TITLE TO PROPERTY
DERIVED THEREFROM, SHALL BE IN A PUBLIC AGENCY FOR THE USES AND
PURPOSES PROVIDED IN THIS SUBCHAPTER, AND THAT A PUBLIC AGENCY WILL
ADMINISTER SUCH FUNDS AND PROPERTY."  20 U.S.C. 241E (A)(3). 

/4/  "(THE TERM 'LOCAL EDUCATIONAL AGENCY' MEANS A PUBLIC BOARD OF
EDUCATION OR OTHER PUBLIC AUTHORITY LEGALLY CONSTITUTED WITHIN A STATE
FOR EITHER ADMINISTRATIVE CONTROL OR DIRECTION OF, OR TO PERFORM A
SERVICE FUNCTION FOR, PUBLIC ELEMENTARY OR SECONDARY SCHOOLS IN A CITY,
COUNTY, TOWNSHIP, SCHOOL DISTRICT, OR OTHER POLITICAL SUBDIVISION OF A
STATE, OR SUCH COMBINATION OF SCHOOL DISTRICTS OR COUNTIES AS ARE
RECOGNIZED IN A STATE AS AN ADMINISTRATIVE AGENCY FOR ITS PUBLIC
ELEMENTARY OR SECONDARY SCHOOLS.  SUCH TERM INCLUDES ANY OTHER PUBLIC
INSTITUTION OR AGENCY HAVING ADMINISTRATIVE CONTROL AND DIRECTION OF A
PUBLIC ELEMENTARY OR SECONDARY SCHOOL . . . ."  20 U.S.C. 244 (6) (B). 
SEE ALSO 45 CFR 116.1(R). 

/5/  "THE TERM 'STATE EDUCATIONAL AGENCY' MEANS THE OFFICER OR
AGENCY PRIMARILY RESPONSIBLE FOR THE STATE SUPERVISION OF PUBLIC
ELEMENTARY AND SECONDARY SCHOOLS."  20 U.S.C. 244(7).  SEE ALSO 45 CFR
116.1 (AA). 

/6/  THE REGULATIONS STATE: 

"EACH LOCAL EDUCATION AGENCY SHALL PROVIDE SPECIAL EDUCATIONAL
SERVICES DESIGNED TO MEET THE SPECIAL EDUCATIONAL NEEDS OF
EDUCATIONALLY DEPRIVED CHILDREN RESIDING IN ITS DISTRICT WHO ARE
ENROLLED IN PRIVATE SCHOOLS.  SUCH EDUCATIONALLY DEPRIVED CHILDREN
SHALL BE PROVIDED GENUINE OPPORTUNITIES TO PARTICIPATE THEREIN
CONSISTENT WITH THE NUMBER OF SUCH EDUCATIONALLY DEPRIVED CHILDREN AND
THE NATURE AND EXTENT OF THEIR EDUCATIONAL DEPRIVATION."  45 CFR
116.19(A). 

"THE NEEDS OF EDUCATIONALLY DEPRIVED CHILDREN ENROLLED IN PRIVATE
SCHOOLS, THE NUMBER OF SUCH CHILDREN WHO WILL PARTICIPATE IN THE
PROGRAM AND THE TYPES OF SPECIAL EDUCATIONAL SERVICES TO BE PROVIDED
FOR THEM, SHALL BE DETERMINED, AFTER CONSULTATION WITH PERSONS
KNOWLEDGEABLE OF THE NEEDS OF THESE PRIVATE SCHOOL CHILDREN, ON A BASIS
COMPARABLE TO THAT USED IN PROVIDING FOR THE PARTICIPATION IN THE
PROGRAM BY EDUCATIONALLY DEPRIVED CHILDREN ENROLLED IN PUBLIC
SCHOOLS."  45 CFR 116.19(B). 

/7/  THE COURT OF APPEALS NOTED: 

"THE PRACTICE IN MISSOURI AS A WHOLE IN PRIOR YEARS HAS BEEN TO GIVE
COMPARABLE EQUIPMENT, MATERIALS AND SUPPLIES TO ELIGIBLE PRIVATE SCHOOL
CHILDREN, BUT TO EXCLUDE ANY SHARING WHATSOEVER OF PERSONNEL SERVICES. 
MOST TITLE I PUBLIC SCHOOL PROGRAMS IN MISSOURI INVOLVE REMEDIAL
READING, SPEECH THERAPY AND SPECIAL MATHEMATICS CLASSES, THUS THE
LARGEST PROPORTION OF THE COST OF THESE PROJECTS INVOLVES SALARIES FOR
TEACHERS AND TEACHER AIDS.  AFTER THE FIRST TWO YEARS OF TITLE I,
EXPENDITURES IN MISSOURI FOR INSTRUCTIONAL PERSONNEL HAVE RUN FROM 65
PER CENT TO 70 PER CENT OF THE TOTAL GRANT.  THE REMAINING FUNDS ARE
USED FOR EQUIPMENT AND MATERIALS, HEALTH AND COUNSELING SERVICES,
TRANSPORTATION, AND PLANT MAINTENANCE.  ONE DIFFICULTY WITH PROVIDING
ONLY EQUIPMENT AND MATERIALS IS THAT EVEN MINIMAL SHARING OF EXPENSES
FOR EQUIPMENT AND MATERIALS SOON REACHES A SATURATION POINT; IN FACT,
THE STATE GUIDELINES PERMIT ONLY 15 PER CENT OF ANY APPROPRIATION TO BE
SPENT ON EQUIPMENT AND INSTRUCTIONAL MATERIALS.  THE RESULT OF THIS
PLAN FOR THE DEPRIVED PRIVATE SCHOOL CHILD HAS BEEN TO CREATE A
DISPARITY IN EXPENDITURES IN MANY SCHOOL DISTRICTS RANGING FROM
APPROXIMATELY $10 TO $85 APPROVED FOR THE EDUCATIONALLY DISADVANTAGED
PRIVATE SCHOOL CHILD TO APPROXIMATELY $210 TO $275 ALLOCATED FOR THE
DEPRIVED PUBLIC SCHOOL CHILD."  475 F.2D 1338, 1345. 

/8/  AN INFORMAL SURVEY CONDUCTED BY THE UNITED STATES OFFICE OF
EDUCATION REVEALED THAT MISSOURI WAS THE ONLY STATE WHICH DID NOT USE
EITHER DUAL ENROLLMENT OR ON-THE-PREMISES PRIVATE SCHOOL INSTRUCTION AS
A MEANS OF PROVIDING TITLE I SERVICES.  BRIEF FOR RESPONDENTS 93 - 95. 

/9/  THE MISSOURI CONSTITUTION, ART. 9, 5, PROVIDES: 

"THE PROCEEDS OF ALL CERTIFICATES OF INDEBTEDNESS DUE THE STATE
SCHOOL FUND, AND ALL MONEYS, BONDS, LANDS, AND OTHER PROPERTY BELONGING
TO OR DONATED TO ANY STATE FUND FOR PUBLIC SCHOOL PURPOSES, AND THE NET
PROCEEDS OF ALL SALES OF LANDS AND OTHER PROPERTY AND EFFECTS THAT MAY
ACCRUE TO THE STATE BY ESCHEAT, SHALL BE PAID INTO THE STATE TREASURY,
AND SECURELY INVESTED UNDER THE SUPERVISION OF THE STATE BOARD OF
EDUCATION, AND SACREDLY PRESERVED AS A PUBLIC SCHOOL FUND THE ANNUAL
INCOME OF WHICH SHALL BE FAITHFULLY APPROPRIATED FOR ESTABLISHING AND
MAINTAINING FREE PUBLIC SCHOOLS, AND FOR NO OTHER USES OR PURPOSES
WHATSOEVER."  THE CONSTITUTION, ART. 9, 8, ALSO PROVIDES: 

"NEITHER THE GENERAL ASSEMBLY, NOR ANY COUNTY, CITY, TOWN, TOWNSHIP,
SCHOOL DISTRICT OR OTHER MUNICIPAL CORPORATION, SHALL EVER MAKE AN
APPROPRIATION OR PAY FROM ANY PUBLIC FUND WHATEVER, ANYTHING IN AID OF
ANY RELIGIOUS CREED, CHURCH OR SECTARIAN PURPOSE, OR TO HELP TO SUPPORT
OR SUSTAIN ANY PRIVATE OR PUBLIC SCHOOL, ACADEMY, SEMINARY, COLLEGE,
UNIVERSITY, OR OTHER INSTITUTION OF LEARNING CONTROLLED BY ANY
RELIGIOUS CREED, CHURCH OR SECTARIAN DENOMINATION WHATEVER; NOR SHALL
ANY GRANT OR DONATION OF PERSONAL PROPETY OR REAL ESTATE EVER BE MADE
BY THE STATE, OR ANY COUNTY, CITY, TOWN, OR OTHER MUNICIPAL
CORPORATION, FOR ANY RELIGIOUS CREED, CHURCH, OR SECTARIAN PURPOSE
WHATEVER."  FINALLY, THE CONSTITUTION'S BILL OF RIGHTS, ART. 1, 7,
PROVIDES: 

"THAT NO MONEY SHALL EVER BE TAKEN FROM THE PUBLIC TREASURY,
DIRECTLY OR INDIRECTLY, IN AID OF ANY CHURCH, SECT OR DENOMINATION OF
RELIGION, OR IN AID OF ANY PRIEST, PREACHER, MINISTER OR TEACHER
THEREOF, AS SUCH; AND THAT NO PREFERENCE SHALL BE GIVEN TO NOR ANY
DISCRIMINATION MADE AGAINST ANY CHURCH, SECT OR CREED OF RELIGION, OR
ANY FORM OF RELIGIOUS FAITH OR WORSHIP." 

IN SPECIAL DISTRICT V. WHEELER, 408 S.W. 2D 60, 63 (1966), THE
SUPREME COURT OF MISSOURI HELD THAT "THE USE OF PUBLIC SCHOOL MONEYS TO
SEND SPEECH TEACHERS . . . INTO THE PAROCHIAL SCHOOLS FOR SPEECH
THERAPY" WAS NOT A USE "FOR THE PURPOSE OF MAINTAINING FREE PUBLIC
SCHOOLS," WITHIN THE MEANING OF ART. 9, 5, OF THE STATE'S CONSTITUTION,
AND THEREFORE WAS A PRACTICE "UNLAWFUL AND INVALID."  THAT CASE DID NOT
INVOLVE FEDERAL FUNDS. 

THE QUESTION IN THE PRESENT CASE IS WHETHER TITLE I GRANTS TO THE
STATE ARE "DONATED . . . FOR PUBLIC SCHOOL PURPOSES" AND THEREFORE
SUBJECT TO THE PROSCRIPTION HELD TO EXIST IN SPECIAL DISTRICT.  AFTER
THAT CASE WAS DECIDED BY THE MISSOURI COURT, THE STATE BOARD OF
EDUCATION PROMULGATED A REGULATION GOVERNING THE USE OF TITLE I FUNDS
IN MISSOURI.  IT PROVIDES: 

"'SPECIAL EDUCATIONAL SERVICES AND ARRANGEMENTS, INCLUDING BROADENED
INSTRUCTIONAL OFFERINGS MADE AVAILABLE TO CHILDREN IN PRIVATE SCHOOLS,
SHALL BE PROVIDED AT PUBLIC FACILITIES.  PUBLIC SCHOOL PERSONNEL SHALL
NOT BE MADE AVAILABLE IN PRIVATE FACILITIES.  THIS DOES NOT PREVENT THE
INCLUSION IN A PROJECT OF SPECIAL EDUCATIONAL ARRANGEMENTS TO PROVIDE
EDUCATIONAL RADIO AND TELEVISION TO STUDENTS AT PRIVATE SCHOOLS.'"  SEE
475 F.2D, AT 1350. 

IN A FORMAL OPINION THE ATTORNEY GENERAL OF MISSOURI HAS TAKEN THE
OPPOSING VIEW, STATING, "WE DO NOT BELIEVE THAT AN APPROPRIATION OF
THIS TYPE (TITLE I) CONVERTS FEDERAL AID INTO STATE AID, THEREBY MAKING
IT SUBJECT TO THE MISSOURI CONSTITUTIONAL PROVISIONS."  THE OPINION
CONCLUDES: 

"IT IS THE OPINION OF THIS OFFICE THAT THE ELEMENTARY AND SECONDARY
EDUCATION ACT OF 1965 PROVIDES THAT, UNDER CERTAIN CIRCUMSTANCES AND TO
THE EXTENT NECESSARY, PUBLIC SCHOOL PERSONNEL, PAID WITH FEDERAL FUNDS
PURSUANT TO THIS PROGRAM, MAY BE MADE AVAILABLE ON THE PREMISES OF
PRIVATE SCHOOLS TO PROVIDE CERTAIN SPECIAL SERVICES TO ELIGIBLE
CHILDREN AND THAT MISSOURI LAW WOULD NOT PREVENT PUBLIC SCHOOL
PERSONNEL, PAID WITH FEDERAL FUNDS, FROM PROVIDING THESE SERVICES ON
THE PREMISES OF A PRIVATE SCHOOL."  OP. ATTY. GEN. NO. 26 (1970).  THIS
RATER FUNDAMENTAL INTRASTATE LEGAL RIFT APPARENTLY HAS RESULTED IN THE
MISSOURI ATTORNEY GENERAL'S NONAPPEARANCE FOR THE PETITIONERS IN THE
PRESENT LITIGATION. 

THERE IS NO MISSOURI CASE IN POINT.  CF. STATE EX REL. SCHOOL
DISTRICT OF HARTINGTON V. NEBRASKA STATE BOARD OF EDUCATION, 188 NEB.
1, 195 N.W. 2D 161, CERT. DENIED, 409 U.S. 921 (1972). 

/10/  ON REMAND FROM THE COURT OF APPEALS THE DISTRICT COURT ON MAY
9, 1973, ENTERED AN "INJUNCTION AND JUDGMENT.  ISSUED IN COMPLIANCE
WITH MANDATE" REQUIRING USE OF TITLE I PERSONNEL ON PRIVATE SCHOOL
PREMISES DURING REGULAR SCHOOL HOURS IF SUCH PERSONNEL ARE ALSO USED IN
PUBLIC SCHOOLS DURING REGULAR SCHOOL HOURS.  PET. FOR CERT. A45 - A47. 
PETITIONERS APPEALED FROM THAT JUDGMENT, BUT THE COURT OF APPEALS
DISMISSED THE APPEAL AS MOOT AFTER WE GRANTED CERTIORARI.  OUR GRANT OF
CERTIORARI WAS TO REVIEW THE JUDGMENT OF THE COURT OF APPEALS ENTERED
PURSUANT TO THE OPINION REPORTED AT 475 F.2D 1338.  THE JUDGMENT OF THE
DISTRICT COURT ON REMAND IS NOT PRESENTLY BEFORE US. 

/11/  THE ACT ITSELF DOES NOT MENTION "COMPARABILITY."  IT REQUIRES
ONLY THAT THE STATE AGENCY, IN APPROVING A PLAN, MUST DETERMINE "THAT,
TO THE EXTENT CONSISTENT WITH THE NUMBER OF EDUCATIONALLY DEPRIVED
CHILDREN IN THE SCHOOL DISTRICT OF THE LOCAL EDUCATIONAL AGENCY WHO ARE
ENROLLED IN PRIVATE ELEMENTARY AND SECONDARY SCHOOLS, SUCH AGENCY HAS
MADE PROVISION FOR INCLUDING SPECIAL EDUCATIONAL SERVICES AND
ARRANGEMENTS (SUCH AS DUAL ENROLLMENT, EDUCATIONAL RADIO AND
TELEVISION, AND MOBILE EDUCATIONAL SERVICES AND EQUIPMENT) IN WHICH
SUCH CHILDREN CAN PARTICIPATE."  20 U.S.C. 241EA)(2).  THE REGULATIONS,
45 CFR 116.19(A) AND (B), ARE THE SOURCE OF THE COMPARABILITY
REQUIREMENT.  SEE N. 6, SUPRA. 

/12/  THE CASE FROM THIS COURT PRIMARILY CITED BY THE COURT OF
APPEALS FOR THE PROPOSITION THAT FEDERAL, NOT STATE, LAW SHOULD GOVERN,
IS UNITED STATES V. 93.970 ACRES OF LAND, 360 U.S. 328 (1959).  THERE,
HOWEVER, THIS COURT SAID:  "WE HAVE OFTEN HELD THAT WHERE ESSENTIAL
INTERESTS OF THE FEDERAL GOVERNMENT ARE CONCERNED, FEDERAL LAW RULES
UNLESS CONGRESS CHOOSES TO MAKE STATE LAWS APPLICABLE.  IT IS APPARENT
THAT NO SUCH CHOICE HAS BEEN MADE HERE."  ID., AT 332 - 333 (FOOTNOTES
OMITTED).  IN THE PRESENT CASE, CONGRESS, IN FACT, HAS MADE THIS
CHOICE, SEE N. 13 INFRA, AND THUS THE CITED CASE IS NOT CONTROLLING. 

/13/  DURING THE DEBATES IN THE HOUSE, IT WAS GENERALLY UNDERSTOOD
THAT STATE CONSTITUTIONAL LIMITATIONS WERE TO BE ACCOMMODATED.  FOR
EXAMPLE, AT ONE POINT CONGRESSMAN GOODELL RAISED THE POSSIBILITY THAT
STATE LAW WOULD PRECLUDE CERTAIN FORMS OF SERVICES TO NONPUBLIC
SCHOOLS.  THE RESPONSE FROM CONGRESSMAN PERKINS, CHAIRMAN OF THE
SUBCOMMITTEE, WAS: 

"THE GENTLEMAN IS AN ABLE LAWYER AND HE WELL KNOWS YOU CANNOT DO
ANYTHING IN THIS BILL THAT YOU CANNOT DO UNDER THE STATE LAW."  111
CONG. REC. 5744 (1965).  RESPONDING TO A LATER OBSERVATION BY MR.
GOODELL THAT DUAL ENROLLMENT WAS PROHIBITED BY 28 STATES, CONGRESSMAN
CAREY RESPONDED: 

"THE PROHIBITION APPLIES TO A SINGLE TYPE OF PROGRAM.  THAT IS WHY
WE HAVE A MULTIPLICITY OF PROGRAMS IN THIS, SO THAT THEY CAN CHOOSE ONE
IN HELPING THE CHILDREN WHO ARE DISADVANTAGED IN ANY ONE PUBLIC
SCHOOL."  ID., AT 5758.  CONGRESSMAN THOMPSON SUBSEQUENTLY OBSERVED: 

"THEREFORE, THE PROVISION ABOUT PROVIDING FULL ASSISTANCE UNDER
TITLE I IS UP TO THE PUBLIC SCHOOL DISTRICT, SUBJECT TO THE LAWS OF THE
STATES."  IBID.  SEE ALSO ID., AT 5979 (REMARDS OF CONG. THOMPSON);
ID., AT 5757 (REMARDS OF CONG. GOODELL); ID., AT 5747 (REMARDS OF CONG.
PERKINS). 

THE HANDBOOK CLEARLY RECOGNIZES THAT STATE LAW IS TO BE
ACCOMMODATED: 

"MANY STATE DEPARTMENTS OF EDUCATION FOUND SEVERE RESTRICTIONS WITH
RESPECT TO THE KIND OF SERVICES THAT THEIR RESPECTIVE STATE
CONSTITUTIONS AND STATUTES ALLOWED THEM TO PROVIDE TO PRIVATE SCHOOL
STUDENTS, ESPECIALLY WHEN THOSE PRIVATE SCHOOLS WERE OWNED AND OPERATED
BY RELIGIOUS GROUPS. 

"THE FOLLOWING LIST ILLUSTRATES THE KIND OF PROHIBITIONS ENCOUNTERED
WHEN STATE CONSTITUTIONS AND LAWS ARE APPLIED TO TITLE I. THE LIST IS
NOT EXHAUSTIVE. 

"* DUAL ENROLLMENT MAY NOT BE ALLOWED.     "* PUBLIC SCHOOL
PERSONNEL MAY NOT PERFORM SERVICES ON PRIVATE SCHOOL PREMISES. 

"* EQUIPMENT MAY NOT BE LOANED FOR USE ON PRIVATE SCHOOL PREMISES. 

"* BOOKS MAY NOT BE LOANED FOR USE ON PRIVATE SCHOOL PREMISES. 

"* TRANSPORTATION MAY NOT BE PROVIDED TO PRIVATE SCHOOL STUDENTS. 
"SOMETIMES SUCH PROHIBITIONS EXIST SINGLY IN A GIVEN STATE.  OFTEN, THE
PROHIBITIONS EXIST IN COMBINATION. 

"WHEN ESEA WAS PASSED IN 1965, EACH STATE SUBMITTED AN ASSURANCE TO
THE U.S. OFFICE OF EDUCATION IN WHICH THE STATE DEPARTMENT OF EDUCATION
STATED ITS INTENTION TO COMPLY WITH TITLE I AND ITS REGULATIONS, AND
THE STATE ATTORNEY GENERAL DECLARED THAT THE STATE BOARD OF EDUCATION
HAD THE AUTHORITY, UNDER STATE LAW, TO PERFORM THE DUTIES AND FUNCTIONS
OF TITLE I AS REQUIRED BY THE FEDERAL LAW AND ITS REGULATIONS.  WHILE
STATE CONSTITUTIONS, LAWS, AND THEIR INTERPRETATIONS LIMIT THE OPTIONS
AVAILABLE TO PROVIDE SERVICES TO PRIVATE SCHOOL STUDENTS, THIS FACT, IN
ITSELF, DOES NOT RELIEVE THE STATE EDUCATIONAL AGENCY OF ITS
RESPONSIBILITY TO APPROVE ONLY THOSE TITLE I APPLICATIONS WHICH MEET
THE REQUIREMENTS SET FORTH IN THE FEDERAL LAW AND REGULATIONS. 

"A NUMBER OF SCHOOL OFFICIALS REALIZED THAT THEY COULD NOT SUBMIT
THE REQUIRED ASSURANCE BECAUSE OF THE RESTRICTIONS APPLYING TO PRIVATE
SCHOOL STUDENTS WHICH WERE OPERATIVE IN THEIR STATES.  THE IMPASSE WAS
SUCCESSFULLY RESOLVED IN ONE CASE BY A STATE ATTORNEY GENERAL'S OPINION
WHICH HELD THAT STATE RESTRICTIONS WERE NOT APPLICABLE TO 100 PERCENT
FEDERALLY FINANCED PROGRAMS. 

"OTHER STATES HAVE PROPOSED LEGISLATION WHICH WOULD ALLOW THE SEA TO
ADMINISTER TITLE I ACCORDING TO THE FEDERAL REQUIREMENTS.  STILL OTHERS
HAVE APPLIED THE RESTRICTIONS OF THE STATE TO TITLE I AND HAVE RELIED
UPON THE INITIATIVE OF SCHOOL ADMINISTRATORS TO DEVELOP A PROGRAM THAT
WOULD MEET THE FEDERAL REQUIREMENTS."  HANDBOOK 19 - 20. 

/14/  HEW'S OFFICE OF EDUCATION REFERS TO THE COMPARABILITY
REQUIREMENT AS FOLLOWS: 

"THE NEEDS OF PRIVATE SCHOOL CHILDREN IN THE ELIGIBLE AREAS MAY
REQUIRE DIFFERENT SERVICES AND ACTIVITIES.  THOSE SERVICES AND
ACTIVITIES, HOWEVER, MUST BE COMPARABLE IN QUALITY, SCOPE, AND
OPPORTUNITY FOR PARTICIPATION TO THOSE PROVIDED FOR PUBLIC SCHOOL
CHILDREN WITH NEEDS OF EQUALLY HIGH PRIORITY.  'COMPARABILITY' OF
SERVICES SHOULD BE ATTAINED IN TERMS OF THE NUMBERS OF EDUCATIONALLY
DEPRIVED CHILDREN IN THE PROJECT AREA IN BOTH PUBLIC AND PRIVATE
SCHOOLS AND RELATED TO THEIR SPECIFIC NEEDS, WHICH IN TURN SHOULD
PRODUCE AN EQUITABLE SHARING OF TITLE I RESOURCES BY BOTH GROUPS OF
CHILDREN."  USOE PROGRAM GUIDE NO. 44, 4.5 (1968), IN HANDBOOK 41 -
42.  SEE 45 CFR 116.18(A).  TITLE 45 CFR 116.19(C) PROVIDES: 

"THE OPPORTUNITIES FOR PARTICIPATION BY EDUCATIONALLY DEPRIVED
CHILDREN IN PRIVATE SCHOOLS IN THE PROGRAM OF A LOCAL EDUCATIONAL
AGENCY UNDER TITLE I OF THE ACT SHALL BE PROVIDED THROUGH PROJECTS OF
THE LOCAL EDUCATIONAL AGENCY WHICH FURNISH SPECIAL EDUCATIONAL SERVICES
THAT MEET THE SPECIAL EDUCATIONAL NEEDS OF SUCH EDUCATIONALLY DEPRIVED
CHILDREN RATHER THAN THE NEEDS OF THE STUDENT BODY AT LARGE OR OF
CHILDREN IN A SPECIFIED GRADE."  SEE ALSO HANDBOOK 1, 10 - 11. 

/15/  THE HANDBOOD 6, REFERRING TO THE "COMPARABILITY" DEFINITION IN
N. 14, SUPRA, STATES: 

"BASICALLY, WHAT THE REGULATIONS AND GUIDELINES ARE SAYING IS THIS:
WHEN A GROUP OF CHILDREN IN A PRIVATE SCHOOL ARE FOUND TO HAVE A NEED
WHICH IS SIMILAR (NOT IDENTICAL) TO A NEED FOUND IN A GROUP OF PUBLIC
SCHOOL CHILDREN, THE RESPONSE TO THAT NEED WITH TITLE I RESOURCES
SHOULD BE SIMILAR (NOT IDENTICAL) IN SCOPE, QUALTIY, AND OPPORTUNITY
FOR PARTICIPATION FOR BOTH GROUPS." 

/16/  THE UNITED STATES, AS AMICUS CURIAE, STATES: 

"TITLE I IS SUFFICIENTLY FLEXIBLE TO ALLOW LOCAL AGENCIES TO
OBSERVE, WHERE POSSIBLE, STATE AND LOCAL RESTRICTIONS UPON AID TO
PRIVATE SCHOOL CHILDREN (E.G., PROHIBITION AGAINST DUAL ENROLLMENT). 
ACCORDINGLY, TITLE I PROGRAMS MAY BE PROVIDED IN A DIFFERENT MANNER TO
PRIVATE AND TO PUBLIC SCHOOL CHILDREN.  FOR EXAMPLE, REMEDIAL SERVICES
FOR PRIVATE SCHOOL STUDENTS MIGHT BE PROVIDED OUTSIDE THEIR REGULAR
CLASSROOM, WHILE BEING PROVIDED IN THE REGULAR CLASSROOM FOR PUBLIC
SCHOOL STUDENTS.  IN ADDITION, THE CONTENT OF THE SERVICES COULD DIFFER
IF THE 'SPECIAL EDUCATIONAL NEEDS' REQUIRED TO BE MET UNDER 20 U.S.C.
241EA)(1)(A) OF THE TWO GROUPS DIFFER."  BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE 10 (FOOTNOTE OMITTED). 

/17/  THE STATE, OF COURSE, MAY NOT UTILIZE THE "COMPARABILITY"
PROVISION SO AS TO PROVIDE AN INFERIOR PROGRAM.  A YEAR AFTER THE ACT
WAS PASSED, THE HOUSE COMMITTEE ON EDUCATION AND LABOR ISSUED A
SUPPLEMENTAL REPORT STATING: 

"WHILE THE COMMITTEE AND THE COUNCIL HAVE EMPHASIZED THE IMPORTANCE
OF ADHERENCE TO CONSTITUTIONAL SAFEGUARDS, THE COMMITTEE DOES NOT
EXPECT THAT SUCH CONSIDERATIONS WILL BE SIMPLY A DEVICE BY WHICH ONLY A
TOKEN COMMUNICATION WITH PRIVATE SCHOOL ADMINISTRATORS IS EXTENDED, OR
WORSE YET, BY WHICH THE PROJECTS IN WHICH PRIVATE SCHOOLCHILDREN CAN
PARTICIPATE ARE INCONVENIENT, AWKWARDLY ARRANGED, OR POORLY CONCEIVED. 
TO THE CONTRARY, IT IS EXPECTED THAT EARNEST EFFORTS WILL BE MADE TO
ASCERTAIN FROM PRIVATE SCHOOL ADMINISTRATORS AN ACCURATE APPRAISAL OF
UNDERACHIEVEMENT AND OTHER SPECIAL NEEDS OF EDUCATIONALLY DISADVANTAGED
CHILDREN WHO DO NOT ATTEND THE PUBLIC SCHOOLS.  PROJECTS FOR SUCH
CHILDREN SHOULD BE SO DESIGNED AS TO EFFECTIVELY ELIMINATE THOSE
FACTORS WHICH PRECLUDE THE EDUCATIONALLY DEPRIVED CHILD FROM GAINING
FULL BENEFIT FROM THE REGULAR ACADEMIC PROGRAM OFFERINGS IN THE PRIVATE
INSTITUTION IN WHICH HE OR SHE MAY BE ENROLLED."  H.R. REP. NO. 1814,
PT. 2, 89TH CONG., 2D SESS., 3 (1966). 

/18/  THE SENATE REPORT OUTLINED THE CIRCUMSTANCES IN WHICH THIS
TYPE OF SERVICE WOULD BE APPROPRIATE: 

"IT IS ANTICIPATED, HOWEVER, THAT PUBLIC SCHOOL TEACHERS WILL BE
MADE AVAILABLE TO OTHER THAN PUBLIC SCHOOL FACILITIES ONLY TO PROVIDE
SPECIALIZED SERVICES WHICH CONTRIBUTE PARTICULARLY TO MEETING THE
SPECIAL EDUCATIONAL NEEDS OF EDUCATIONALLY DEPRIVED CHILDREN (SUCH AS
THERAPEUTIC, REMEDIAL OR WELFARE SERVICES) AND ONLY WHERE SUCH
SPECIALIZED SERVICES ARE NOT NORMALLY PROVIDED BY THE NONPUBLIC
SCHOOL."  S. REP. NO. 146, 89TH CONG., 1ST SESS., 12 (1965).  SEE 45
CFR 116.19(E); 111 CONG. REC. 5747 (1965) (REMARKS OF CONGS.  PERKINS
AND CAREY). 

/19/  "THERE ARE NO EASY SOLUTIONS TO THE LOGISTICAL PROBLEMS. 
HOWEVER, WHEN THE LEGAL SITUATION ALLOWS SEVERAL OPTIONS AND GOOD WILL
EXISTS BETWEEN PUBLIC AND PRIVATE SCHOOL REPRESENTATIVES, THE
LOGISTICAL PROBLEM CAN BE SOLVED OR REASONABLY REDUCED."  HANDBOOK 23. 

/20/  A LISTING OF POSSIBLE PROGRAMS SUGGESTED TO THE SENATE
COMMITTEE APPEARS IN S. REP. NO. 146, 89TH CONG., 1ST SESS., 10 - 11
(1965).  AMONG THE EXAMPLES THERE LISTED ARE TEACHER AIDS AND
INSTRUCTIONAL SECRETARIES; INSTITUTES FOR TRAINING TEACHERS IN SPECIAL
SKILLS; SUPPLEMENTARY INSTRUCTIONAL MATERIALS; CURRICULUM MATERIALS
CENTER FOR DISADVANTAGED CHILDREN; PRESCHOOL TRAINING PROGRAMS;
REMEDIAL PROGRAMS, ESPECIALLY IN READING AND MATHEMATICS; ENRICHMENT
PROGRAMS ON SATURDAY MORNING AND DURING SUMMER; INSTRUCTIONAL MEDIA
CENTERS TO PROVIDE MODERN EQUIPMENT AND MATERIALS; PROGRAMS FOR THE
EARLY IDENTIFICATION AND PREVENTION OF DROPOUTS; HOME AND SCHOOL
VISITORS AND SOCIAL WORKERS; SUPPLEMENTAL HEALTH AND FOOD SERVICES;
CLASSROOMS EQUIPPED FOR TELEVISION AND RADIO INSTRUCTION; MOBILE
LEARNING CENTERS; EDUCATIONAL SUMMER CAMPS; SUMMER SCHOOL AND DAY CAMP;
SHOP AND LIBRARY FACILITIES AVAILABLE AFTER REGULAR SCHOOL HOURS; WORK
EXPERIENCE PROGRAMS; SATURDAY MORNING SPECIAL OPPORTUNITY CLASSES; HOME
ORIENTED BOOKMOBILES; AFTERSCHOOL STUDY CENTERS; AND PUPIL EXCHANGE
PROGRAMS. 

MR. JUSTICE MARSHALL CONCURS IN THE RESULT. 

MR. JUSTICE POWELL, CONCURRING. 

THE COURT HOLDS THAT UNDER TITLE I OF THE ELEMENTARY AND SECONDARY
EDUCATION ACT OF 1965, AS AMENDED, 20 U.S.C. 241A ET SEQ., FEDERAL
COURTS MAY NOT IGNORE STATE-LAW PROHIBITIONS AGAINST THE USE OF
PUBLICLY EMPLOYED TEACHERS IN PRIVATE SCHOOLS, ANTE, AT 416 - 417, THAT
TITLE I DOES NOT MANDATE ON-THE-PREMISES INSTRUCTION IN PRIVATE
SCHOOLS, ANTE, AT 419, AND THAT TITLE I DOES NOT REQUIRE THAT THE
SERVICES TO BE PROVIDED IN PRIVATE SCHOOLS BE IDENTICAL IN ALL RESPECTS
TO THOSE OFFERED IN PUBLIC SCHOOLS.  ANTE, AT 420 - 421.  IT IS THUS
UNNECESSARY TO DECIDE WHETHER THE ASSIGNMENT OF PUBLICLY EMPLOYED
TEACHERS TO PROVIDE INSTRUCTION IN SECTARIAN SCHOOLS WOULD CONTRAVENE
THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT.  ANTE, AT 415.  ON
THAT BASIS, I JOIN THE COURT'S OPINION.  I WOULD HAVE SERIOUS
MISGIVINGS ABOUT THE CONSTITUTIONALITY OF A STATUTE THAT REQUIRED THE
UTILIZATION OF PUBLIC SCHOOL TEACHERS IN SECTARIAN SCHOOLS.  SEE
COMMITTEE FOR PUBLIC EDUCATION V. NYQUIST, 413 U.S. 756 (1973). 

MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT. 

AS I READ THE MAJORITY OPINION, THE COURT UNDERSTANDS WELL ENOUGH
THAT TITLE I FUNDS ARE BEING USED IN MISSOURI TO PAY THE SALARIES OF
TEACHERS GIVING SPECIAL INSTRUCTION ON PUBLIC SCHOOL PREMISES, THAT THE
STATE IS OBLIGATED TO FURNISH COMPARABLE SERVICES TO PRIVATE SCHOOLS,
AND THAT THE STATE HAS NOT SATISFIED THE COMPARABILITY REQUIREMENT.  IT
MUST DO SO IF IT IS TO CONTINUE TO USE TITLE I FUNDS IN THE MANNER THEY
ARE NOW BEING USED. 

THE COURT INTIMATES NO OPINION AS TO WHETHER USING FEDERAL FUNDS TO
PAY TEACHERS GIVING SPECIAL INSTRUCTION ON PRIVATE SCHOOL PREMISES
WOULD BE CONSTITUTIONAL.  IT SUGGESTS, HOWEVER, THAT THERE MAY BE OTHER
WAYS OF SATISFYING THE COMPARABILITY REQUIREMENT THAT THE STATE SHOULD
CONSIDER; AND UNLESS THE STATE IS BEING ASKED TO CHASE RAINBOWS, IT IS
IMPLIED THAT THERE ARE PROGRAMS AND SERVICES COMPARABLE TO ON-THE
PREMISES INSTRUCTION THAT THE STATE COULD FURNISH PRIVATE SCHOOLS
WITHOUT VIOLATING THE FIRST AMENDMENT.  I WOULD HAVE THOUGHT THAT ANY
SUCH ARRANGEMENT WOULD BE IMPERMISSIBLE UNDER THE COURT'S RECENT CASES
CONSTRUING THE ESTABLISHMENT CLAUSE.  NOT HAVING JOINED THOSE OPINIONS,
I AM PLEASANTLY SURPRISED BY WHAT APPEARS TO BE A SUGGESTION THAT
FEDERAL FUNDS MAY IN SOME RESPECTS BE USED TO FINANCE NONSECTARIAN
INSTRUCTION OF STUDENTS IN PRIVATE ELEMENTARY AND SECONDARY SCHOOLS. 
IF THIS IS THE CASE, I SUGGEST THAT THE COURT SHOULD SAY SO EXPRESSLY. 
FAILING THAT, HOWEVER, I CONCUR IN THE JUDGMENT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE CASE COMES TO US IN AN ATTRACTIVE POSTURE, AS THE ACT OF
CONGRESS IS IN TERMS AIMED TO HELP "EDUCATIONALLY DEPRIVED" CHILDREN,
WHETHER THEY ARE IN PUBLIC OR PAROCHIAL SCHOOLS, AND I FEAR THE
JUDICIARY HAS BEEN SEDUCED, BUT WE MUST REMEMBER THAT "THE PROPRIETY OF
A LEGISLATURE'S PURPOSES MAY NOT IMMUNIZE FROM FURTHER SCRUTINY A LAW
WHICH EITHER HAS A PRIMARY EFFECT THAT ADVANCES RELIGION, OR WHICH
FOSTERS EXCESSIVE ENTANGLEMENTS BETWEEN CHURCH AND STATE."  COMMITTEE
FOR PUBLIC EDUCATION V. NYQUIST, 413 U.S. 756, 774. 

ALL EDUCATION IN ESSENCE IS AIMED TO HELP CHILDREN, WHETHER BRIGHT
OR RETARDED.  SCHOOLS DO NOT EXIST--WHETHER PUBLIC OR PAROCHIAL--TO
KEEP TEACHERS EMPLOYED.  EDUCATION IS A SKEIN WITH MANY THREADS--FROM
CLASSICAL GREEK TO LATIN, TO GRAMMAR, TO PHILOSOPHY, TO SCIENCE, TO
ATHLETICS, TO RELIGION.  THERE MIGHT WELL BE POLITICAL MOTIVATION TO
USE FEDERAL FUNDS TO MAKE UP DEFICITS IN ANY PART OF A SCHOOL'S BUDGET
OR TO STRENGTHEN IT BY FINANCING ALL OR A PART OF ANY SECTOR OF
EDUCATIONAL ACTIVITY. 

THERE ARE SOME WHO THINK IN CONSTITUTIONALLY WISE TO DO SO; AND
OTHERS WHO THINK IT CONSTITUTIONALLY WISE TO DO SO; AND OTHERS WHO
THINK IT IS CONSTITUTIONALLY PERMISSIBLE.  BUT THE FIRST AMENDMENT SAYS
"CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION." 
IN COMMON UNDERSTANDING THERE IS NO SURER WAY OF "ESTABLISHING" AN
INSTITUTION THAN BY FINANCING IT.  THAT WAS TRUE AT THE TIME OF THE
ADOPTION OF THE FIRST AMENDMENT.  MADISON, ONE OF ITS FOREMOST AUTHORS,
FOUGHT THE BATTLE IN VIRGINIA WHERE THE PER CAPITA MINIMAL LEVY ON EACH
PERSON WAS NO MORE THAN THREE PENCE.  YET IF THE STATE COULD FINANCE A
CHURCH AT THREE PENCE PER CAPITA, THE PRINCIPLE OF "ESTABLISHMENT"
WOULD BE APPROVED AND THERE WOULD BE NO LIMIT TO THE AMOUNT OF MONEY
THE GOVERNMENT COULD ADD TO CHURCH COFFERS.  THAT WAS THE TEACHING OF
HIS REMONSTRANCE.  /1/  AS MR. JUSTICE BLACK STATED IT, "(NO TAX IN ANY
AMOUNT, LARGE OR SMALL, CAN BE LEVIED TO SUPPORT ANY RELIGIOUS
ACTIVITIES OR INSTITUTIONS, WHATEVER THEY MAY BE CALLED, OR WHATEVER
FORM THEY MAY ADOPT TO TEACH OR PRACTICE RELIGION."  EVERSON V. BOARD
OF EDUCATION, 330 U.S. 1, 16.  /2/ 

PAROCHIAL SCHOOLS ARE ADJUNCTS OF THE CHURCH ESTABLISHED AT A TIME
WHEN STATE GOVERNMENTS WERE HIGHLY DISCRIMINATORY AGAINST SOME SECTS BY
INTRODUCING RELIGIOUS TRAINING IN THE PUBLIC SCHOOLS.  THE TALE HAS
BEEN TOLD OFTEN; /3/  AND THERE IS NO NEED TO REPEAT IT HERE. 
PAROCHIAL SCHOOLS ARE TIED TO THE PROCLAMATION AND INCULCATION OF A
PARTICULAR RELIGIOUS FAITH--SOMETIMES CATHOLIC, SOMETIMES PRESBYTERIAN,
SOMETIMES ANGLICAN, SOMETIMES LUTHERAN, AND SO ON. 

THE EMANATIONS FROM THJE COURT'S OPINION ARE, AS SUGGESTED BY MR.
JUSTICE WHITE, AT WAR WITH OUR PRIOR DECISIONS.  FEDERAL FINANCING OF
AN APPARENTLY NONSECTARIAN ASPECT OF PAROCHIAL SCHOOL ACTIVITIES, IF
ALLOWED, IS NOT EVEN A SUBTLE EVASION OF FIRST AMENDMENT PROHIBITIONS. 
THE PAROCHIAL SCHOOL IS A UNIT; ITS BUDGET IS A UNIT; POURING IN
FEDERAL FUNDS FOR WHAT SEEMS TO BE A NONSECTARIAN PHASE OF PAROCHIAL
SCHOOL ACTIVITIES "ESTABLISHED" THE SCHOOL SO THAT IN EFFECT, IF NOT IN
PURPOSE, IT BECOMES STRONGER FINANCIALLY AND BETTER ABLE TO PROSELYTIZE
ITS PARTICULAR FAITH BY HAVING MORE FUNDS LEFT OVER FOR THAT
OBJECTIVE.  ALLOWING THE STATE TO FINANCE THE SECULAR PART OF A
MERELY ON COST ACCOUNTING AND BOOKKEEPING ENTRIES."  LEMON V. KURTZMAN,
403 U.S. 602, 641 (DOUGLAS, J., CONCURRING).     NOR COULD THE PROGRAM
HERE BE IMMUNIZED FROM SCRUTINY UNDER THE ESTABLISHMENT CLAUSE BY
PORTRAYING THIS AID AS GOING TO THE CHILDREN RATHER THAN TO THE
SUPRA, AT 781 ET SEQ. THAT AUGUMENT DESERVES NO MORE WEIGHT IN THE
ESTABLISHMLENT CLAUSE CONTEXT THAN IT RECEIVED UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, WITH RESPECT TO WHICH WE
SUMMARILY AFFIRMED DECISIONS STRIKING DOWN STATE SCHEMES TO CIRCUMVENT
THE CONSTITUTIONAL REQUIREMENT OF RACIAL INTEGRATION IN PUBLIC SCHOOLS
GRANTING TUITION AID TO PARENTS WHO SENT THEIR CHILDREN TO SEGREGATED
PRIVATE SCHOOLS.  POINDEXTER V. LOUISIANA FINANCIAL ASSISTANCE COMM'N,
275 F. SUPP. 833, AFF'D, 389 U.S. 571, AND 296 F. SUPP. 686, AFF'D, 393
U.S. 17.  AND SEE GRIFFIN V. COUNTY SCHOOL BOARD, 377 U.S. 218. 

THE PRESENT CASE IS PLAINLY NOT MOOT; A CASE OR CONTROVERSY EXISTS;
AND IT IS CLEAR THAT IF THE TRADITIONAL FIRST AMENDMENT BARRIERS ARE TO
BE MAINTAINED, NO PROGRAM SERVING STUDENTS IN PAROCHIAL SCHOOLS COULD
BE DESIGNED UNDER THIS ACT--WHETHER REGULAR SCHOOL HOURS ARE USED, OR
AFTER-SCHOOL HOURS, OR WEEKEND HOURS.  THE PLAIN TRUTH IS THAT UNDER
THE FIRST AMENDMENT, AS CONSTRUED TO THIS DAY, THE ACT IS
UNCONSTITUTIONAL TO THE EXTENT IT SUPPORTS SECTARIAN SCHOOLS, WHETHER
DIRECTLY OR THROUGH ITS STUDENTS. 

WE SHOULD SAY SO NOW, AND SAVE THE ENDLESS HOURS AND EFFORTS WHICH
HOPEFUL PEOPLE WILL EXPEND IN AN EFFORT TO CONSTITUTIONALIZE WHAT IS
IMPOSSIBLE WITHOUT A CONSTITUTIONAL AMENDMENT. 

/1/  MADISON'S REMONSTRANCE IS REPRINTED IN THE APPENDICES TO
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 63 (RUTLEDGE, J.,
DISSENTING), AND WALZ V. TAX COMM'N 397 U.S. 664, 719 (DOUGLAS, J.,
DISSENTING). 

/2/  EVERSON WAS A 5 - 4 DECISION SUSTAINING A STATE LAW WHICH
PROVIDED REIMBURSEMENT TO PARENTS OF CHILDREN IN SECTARIAN SCHOOLS FOR
THE COST OF PUBLIC BUS TRANSPORTATION USED BY THE STUDENTS IN TRAVELING
TO SCHOOL, BUT EVEN THE MAJORITY RECOGNIZED THAT THE LAW WENT TO THE
"VERGE" OF FORBIDDEN TERRITORY UNDER THE RELIGION CLAUSES OF THE FIRST
AMENDMENT.  330 U.S., AT 16.  ALTHOUGH I WAS WITH THE MAJORITY IN THAT
CASE, I HAVE SINCE EXPRESSED MY DOUBTS ABOUT THE CORRECTNESS OF THAT
DECISION, E.G., ENGEL V. VITALE, 370 U.S., 421, 443; WALZ V. TAX
COMM'N, SUPRA, AT 703. 

/3/  SEE LEMON V. KURTZMAN, 403 U.S. 602, 628 - 629 (DOUGLAS J.,
CONCURRING). 

LEO PFEFFER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE HARRY D. DINGMAN AND JAMES B. LOWE. 

THOMAS M. SULLIVAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WERE EDWARD L. FITZGERALD AND LOUIS C. DEFEO, JR. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL BORK, ACTING ASSISTANT ATTORNEY GENERAL JAFFE, DANNY
J. BOGGS, MORTON HOLLANDER, JOHN B. RHINELANDER, HARRY J. CHERNOCK, AND
WILLIAM A. KAPLIN.  /1/ 

/1/  KENNETH W. GREENAWALT, MELVIN L. WULF, AND WALTER WRIGHT FILED
A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL. AS AMICI CURIAE
URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY WILLIAM R.
CONSEDINE, GEORGE E. REED, CHARLES M. WHELAN, AND ALFRED L. SCANLAN FOR
THE UNITED STATES CATHOLIC CONFERENCE; BY WILLIAM B. BALL AND JOSEPH G.
SKELLY FOR THE CATHOLIC LEAGUE FOR RELIGIOUS AND CIVIL RIGHTS ET AL.;
BY NATHAN LEWIN FOR THE NATIONAL JEWISH COMMISSION ON LAW AND PUBLIC
AFFAIRS; AND BY JAMES P. FINNEGAN, JR., FOR PARENTS RIGHTS, INC., ET
AL. 

BRIEFS OF AMICI CURIAE WERE FILED BY PAUL S. BERGER, THEODORE R.
MANN, LARRY M. LOVINSKY, HENRY N. RAPAPORT, AND JOSEPH B. ROBISON OF
THE AMERICAN JEWISH CONGRESS ET AL., AND BY G. DENNIS SULLIVAN FOR THE
MISSOURI COALITION FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY. 
..END :










MICHIGAN V. TUCKER, 417 U.S. 433 


       MICHIGAN V. TUCKER

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 482.  ARGUED MARCH 20, 1974--DECIDED JUNE 10,
1974; (480 F.2D 927, REVERSED.) 


    RESPONDENT, WHO HAD BEEN ARRESTED FOR RAPE, WAS QUESTIONED BY

  POLICE.  BEFORE THE COMMENCEMENT OF THE INTERROGATION (WHICH

  ANTEDATED THIS COURT'S DECISION IN MIRANDA V. ARIZONA, 384 U.S.

  436), RESPONDENT WAS ADVISED OF HIS RIGHT TO REMAIN SILENT AND

  HIS RIGHT TO COUNSEL (BUT NOT OF HIS RIGHT TO THE APPOINTMENT OF

  COUNSEL IF HE WAS INDIGENT).  RESPONDENT RELATED AN ALIBI THAT HE

  WAS WITH A FRIEND (HENDERSON), AT THE TIME OF THE CRIME, BUT THE

POLICE LATER ELICITED FROM HENDERSON INFORMATION TENDING TO

 INCRIMINATE RESPONDENT.  BEFORE TRIAL, RESPONDENT MADE A MOTION

  TO EXCLUDE HENDERSON'S EXPECTED TESTIMONY BECAUSE RESPONDENT HAD

  REVEALED HENDERSON'S IDENTITY WITHOUT HAVING RECEIVED THE FULL

  WARNINGS MANDATED BY THE INTERVENING MIRANDA DECISION.  THE

  MOTION WAS DENIED, HENDERSON TESTIFIED, AND RESPONDENT WAS

  CONVICTED.  FOLLOWING AFFIRMANCE ON APPEAL, RESPONDENT SOUGHT

  HABEAS CORPUS RELIEF, WHICH THE DISTRICT COURT GRANTED, FINDING

  THAT HENDERSON'S TESTIMONY WAS INADMISSIBLE BECAUSE OF THE

  MIRANDA VIOLATION.  THE COURT OF APPEALS AFFIRMED.  HELD: 

     1.  THE POLICE CONDUCT IN THIS CASE, THOUGH FAILING TO AFFORD

RESPONDENT THE FULL MEASURE OF PROCEDURAL SAFEGUARDS LATER SET

  FORTH IN MIRANDA, DID NOT DEPRIVE RESPONDENT OF HIS PRIVILEGE

  AGAINST SELF-INCRIMINATION SINCE THE RECORD CLEARLY SHOWS THAT

  RESPONDENT'S STATEMENTS DURING THE POLICE INTERROGATION WERE NOT

  INVOLUNTARY OR THE RESULT OF POTENTIAL LEGAL SANCTIONS.  PP. 139

  - 446. 

     2.  THE EVIDENCE DERIVED FROM THE POLICE INTERROGATION WAS
ADMISSIBLE.  PP. 446 - 452. 

     (A) THE POLICE'S PRE-MIRANDA FAILURE TO ADVISE RESPONDENT OF

  HIS RIGHT TO APPOINTED COUNSEL UNDER ALL THE CIRCUMSTANCES OF

  THIS CASE INVOLVED HAD NO BAD FAITH AND WOULD NOT JUSTIFY

  RECOURSE TO THE EXCLUSIONARY RULE WHICH IS AIMED AT DETERRING

  WILLFUL OR NEGLIGENT DEPRIVATION OF THE ACCUSED'S RIGHTS.  PP.

  446 - 448. 

     (B) THE FAILURE TO ADVISE RESPONDENT OF HIS RIGHT TO APPOINTED

  COUNSEL HAD NO BEARING UPON THE RELIABILITY OF HENDERSON'S

  TESTIMONY, WHICH WAS SUBJECTED TO THE NORMAL TESTING PROCESS OF

  AN ADVERSARY TRIAL.  PP. 448 - 449. 

     (C) THE USE OF THE TESTIMONY OF A WITNESS DISCOVERED BY THE

  POLICE AS A RESULT OF THE ACCUSED'S STATEMENTS UNDER THESE

  CIRCUMSTANCES DOES NOT VIOLATE ANY REQUIREMENTS UNDER THE FIFTH,

  SIXTH, AND FOURTEENTH AMENDMENTS RELATING TO THE ADVERSARY

  SYSTEM.  PP. 449 - 450. 

    REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, BLACKMUN, AND POWELL, JJ., JOINED. 

  STEWART, J., FILED A CONCURRING OPINION, POST, P. 453.  BRENNAN,

  J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH

  MARSHALL, J., JOINED, POST, P. 453.  WHITE, J., FILED AN OPINION

  CONCURRING IN JUDGMENT, POST, P. 460.  DOUGLAS, J., FILED A

  DISSENTING OPINION, POST, P. 461. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER THE TESTIMONY OF A WITNESS
IN RESPONDENT'S STATE COURT TRIAL FOR RAPE MUST BE EXCLUDED SIMPLY
BECAUSE POLICE HAD LEARNED THE IDENTITY OF THE WITNESS BY QUESTIONING
RESPONDENT AT A TIME WHEN HE WAS IN CUSTODY AS A SUSPECT, BUT HAD NOT
BEEN ADVISED THAT COUNSEL WOULD BE APPOINTED FOR HIM IF HE WAS
INDIGENT.  THE QUESTIONING TOOK PLACE BEFORE THIS COURT'S DECISION IN
MIRANDA V. ARIZONA, 384 U.S. 436 (1966), BUT RESPONDENT'S TRIAL, AT
WHICH HE WAS CONVICTED, TOOK PLACE AFTERWARDS.  UNDER THE HOLDING OF
JOHNSON V. NEW JERSERY, 384 U.S. 719 (1966), THEREFORE, MIRANDA IS
APPLICABLE TO THIS CASE.  THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN REVIEWED RESPONDENT'S CLAIM ON A PETITION
FOR HABEAS CORPUS AND HELD THAT THE TESTIMONY MUST BE EXCLUDED.  /1/
THE COURT OF APPEALS AFFIRMED.  /2/

        I 

ON THE MORNING OF APRIL 19, 1966, A 43-YEAR-OLD WOMAN IN PONTIAC,
MICHIGAN, WAS FOUND IN HER HOME BY A FRIEND AND COWORKER, LUTHER WHITE,
IN SERIOUS CONDITION.  AT THE TIME SHE WAS FOUND THE WOMAN WAS TIED,
GAGGED, AND PARTIALLY DISROBED, AND HAD BEEN BOTH RAPED AND SEVERELY
BEATEN.  SHE WAS UNABLE TO TELL WHITE ANYTHING ABOUT HER ASSAULT AT
THAT TIME AND STILL REMAINS UNABLE TO RECOLLECT WHAT HAPPENED. 

WHILE WHITE WAS ATTEMPTING TO GET MEDICAL HELP FOR THE VICTIM AND TO
CALL FOR THE POLICE, HE OBSERVED A DOG INSIDE THE HOUSE.  THIS
APPARENTLY ATTRACTED WHITE'S ATTENTION FOR HE KNEW THAT THE WOMAN DID
NOT OWN A DOG HERSELF.  LATER, WHEN TALKING WITH POLICE OFFICERS, WHITE
OBSERVED THE DOG A SECOND TIME, AND POLICE FOLLOWED THE DOG TO
RESPONDENT'S HOUSE.  NEIGHBORS FURTHER CONNECTED THE DOG WITH
RESPONDENT. 

THE POLICE THEN ARRESTED RESPONDENT AND BROUGHT HIM TO THE POLICE
STATION FOR QUESTIONING.  PRIOR TO THE ACTUAL INTERROGATION THE POLICE
ASKED RESPONDENT WHETHER HE WANTED AN ATTORNEY, AND WHETHER HE
UNDERSTOOD HIS CONSTITUTIONAL RIGHTS.  /3/  RESPONDENT REPLIED THAT HE
DID UNDERSTAND THE CRIME FOR WHICH HE WAS ARRESTED, THAT HE DID NOT
WANT AN ATTORNEY, AND THAT HE UNDERSTOOD HIS RIGHTS.  /4/  THE POLICE
FURTHER ADVISED HIM THAT ANY STATEMENTS HE MIGHT MAKE COULD BE USED
AGAINST HIM AT A LATER DATE IN COURT.  /5/  THE POLICE, HOWEVER, DID
NOT ADVISE RESPONENNT THAT HE WOULD BE FURNISHED COUNSEL FREE OF CHARGE
IF HE COULD NOT PAY FOR THE SERVICES HIMSELF. 

THE POLICE THEN QUESTIONED RESPONDENT ABOUT HIS ACTIVITIES ON THE
NIGHT OF THE RAPE AND ASSAULT.  RESPONDENT REPLIED THAT DURING THE
GENERAL TIME PERIOD AT ISSUE HE HAD FIRST BEEN WITH ONE ROBERT
HENDERSON AND THEN LATER AT HOME, ALONE, ASLEEP.  THE POLICE SOUGHT TO
CONFIRM THIS STORY BY CONTACTING HENDERSON, BUT HENDERSON'S STORY
SERVED TO DISCREDIT RATHER THAN TO BOLSTER RESPONDENT'S ACCOUNT. 
HENDERSON ACKNOWLEDGED THAT RESPONDENT HAD BEEN WITH HIM ON THE NIGHT
OF THE CRIME BUT SAID THAT HE HAD LEFT AT A RELATIVELY EARLY TIME. 
FURTHERMORE, HENDERSON TOLD POLICE THAT HE SAW RESPONDENT THE FOLLOWING
DAY AND ASKED HIM AT THAT TIME ABOUT SCRATCHES ON HIS FACE--"ASKED HIM
IF HE GOT HOLD OF A WILD ONE OR SOMETHING."  /6/  RESPONDENT ANSWERED:
"(SOMETHING LIKE THAT."  /7/  THEN, HENDERSON SAID, HE ASKED RESPONDENT
"WHO IT WAS," /8/  AND RESPONDENT SAID:  "(SOME WOMAN LIVED THE NEXT
BLOCK OVER,"  /9/  ADDING: "SHE IS A WIDOW WOMAN"  OR WORDS TO THAT
EFFECT.  /10/ 

THESE EVENTS ALL OCCURRED PRIOR TO THE DATE ON WHICH THIS COURT
HANDED DOWN ITS DECISION IN MIRANDA V. ARIZONA, SUPRA, BUT RESPONDENT'S
TRIAL OCCURRED AFTERWARDS.  PRIOR TO TRIAL RESPONDENT'S APPOINTED
COUNSEL MADE A MOTION TO EXCLUDE HENDERSON'S EXPECTED TESTIMONY BECAUSE
RESPONDENT HAD REVEALED HENDERSON'S IDENTITY WITHOUT HAVING RECEIVED
FULL MIRANDA WARNINGS.  ALTHOUGH RESPONDENT'S OWN STATEMENTS TAKEN
DURING INTERROGATION WERE EXCLUDED, THE TRIAL JUDGE DENIED THE MOTION
TO EXCLUDE HENDERSON'S TESTIMONY.  HENDERSON THEREFORE TESTIFIED AT
TRAIL, AND RESPONDENT WAS CONVICTED OF RAPE AND SENTENCED TO 20 TO 40
YEARS' IMPRISONMENT.  HIS CONVICTION WAS AFFIRMED BY BOTH THE MICHIGAN
COURT OF APPEALS /11/  AND THE MICHIGAN SUPREME COURT.  /12/ 

RESPONDENT THEN SOUGHT HABEAS CORPUS RELIEF IN FEDERAL DISTRICT
COURT.  THAT COURT, NOTING THAT RESPONDENT HAD NOT RECEIVED THE FULL
MIRANDA WARNINGS AND THAT THE POLICE HAD STIPULATED HENDERSON'S
IDENTITY WAS LEARNED ONLY THROUGH RESPONDENT'S ANSWERS, "RELUCTANTLY"
CONCLUDED THAT HENDERSON'S TESTIMONY COULD NOT BE ADMITTED.  /13/
APPLICTION OF SUCH AN EXCLUSIONARY RULE WAS NECESSARY, THE COURT
REASONED, TO PROTECT RESPONDENT'S FIFTH AMENDMENT RIGHT AGAINST
COMPULSORY SELF-INCRIMINATION.  THE COURT THEREFORE GRANTED
RESPONDENT'S PETITION FOR A WRIT OF HABEAS CORPUS UNLESS PETITIONER
RETRIED RESPONDENT WITHIN 90 DAYS.  THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT AFFIRMED.  WE GRANTED CERTIORARI, 414 U.S. 1062 (1973), AND NOW
REVERSE. 

        II 

ALTHOUGH RESPONDENT'S SOLE COMPLAINT IS THAT THE POLICE FAILED TO
ADVISE HIM THAT HE WOULD BE GIVEN FREE COUNSEL IF UNABLE TO AFFORD
COUNSEL HIMSELF, HE DID NOT, AND DOES NOT NOW, BASE HIS ARGUMENTS FOR
RELIEF ON A RIGHT TO COUNSEL UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS.  NOR WAS THE RIGHT TO COUNSEL, AS SUCH, CONSIDERED TO BE
PERSUASIVE BY EITHER FEDERAL COURT BELOW.  WE DO NOT HAVE A SITUATION
SUCH AS THAT PRESENTED IN ESCOBEDO V. ILLINOIS, 378 U.S. 478 (1964),
WHERE THE POLICEMEN INTERROGATING THE SUSPECT HAD REFUSED HIS REPEATED
REQUESTS TO SEE HIS LAWYER WHO WAS THEN PRESENT AT THE POLICE STATION. 
AS WE HAVE NOTED PREVIOUSLY, ESCOBEDO IS NOT TO BE BROADLY EXTENDED
BEYOND THE FACTS OF THAT PARTICULAR CASE.  SEE JOHNSON V. NEW JERSEY,
384 U.S., AT 733 - 734; KIRBY V. ILLINOIS, 406 U.S. 682, 689 (1972);
FRAZIER V. CUPP, 394 U.S. 731, 739 (1969).  THIS CASE ALSO FALLS
OUTSIDE THE RATIONALE OF UNITED STATES V. WADE, 388 U.S. 218, 224
(1967), WHERE THE COURT HELD THAT COUNSEL WAS NEEDED AT A POST
INDICTMENT LINEUP IN ORDER TO PROTECT THE "RIGHT TO A FAIR TRIAL AT
WHICH THE WITNESSES AGAINST (THE DEFENDANT) MIGHT BE MEANINGFULLY CROSS
EXAMINED."  HENDERSON WAS FULLY AVAILABLE FOR SEARCHING CROSS
EXAMINATION AT RESPONTNET'S TRAIL. 

RESPONDENT'S ARGUMENT, AND THE OPINIONS OF THE DISTRICT COURT AND
COURT OF APPEALS, INSTEAD RELY UPON THE FIFTH AMENDMENT RIGHT AGAINST
COMPULSORY SELF-INCRIMINATION AND THE SAFEGUARDS DESIGNED IN MIRANDA TO
SECURE THAT RIGHT.  IN BRIEF, THE POSITION URGED UPON THIS COURT IS
THAT PROPER REGARD FOR THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINTATION REQUIRES, WITH LIMITED EXCEPTIONS NOT APPLICABLE HERE,
THAT ALL EVIDENCE DERIVED SOLELY FROM STATEMENTS MADE WITHOUT FULL
MIRANDA WARNINGS BE EXCLUDED AT A SUBSEQUENT CRIMINAL TRIAL.  FOR
PURPOSES OF ANALYSIS IN THIS CASE WE BELIEVE THAT THE QUESTION THUS
PRESENTED IS BEST EXAMINED IN TWO SEPARATE PARTS.  WE WILL THEREFORE
FIRST CONSIDER WHETHER THE POLICE CONDUCT COMPLAINED OF DIRECTLY
INFRINGED UPON RESPONDENT'S RIGHT AGAINST COMPULSORY SELF-INCRIMINATION
OR WHETHER IT INSTEAD VIOLATED ONLY THE PROPHYLACTIC RULES DEVELOPED TO
PROTECT THAT RIGHT.  WE WILL THEN CONSIDER WHETHER THE EVIDENCE DERIVED
FROM THIS INTERROGATION MUST BE EXCLUDED. 

        III 

THE HISTORY OF THE FIFTH AMENDMENT RIGHT AGANIST COMPULSORY SELF
INCRIMINATION, AND THE EVILS AGAINST WHICH IT WAS DIRECTED, HAVE
RECEIVED CONSIDERABLE ATTENTION IN THE OPINIONS OF THIS COURT.  SEE,
E.G., KASTIGAR V. UNITED STATES, 406 U.S. 441 (1972); MIRANDA V.
ARIZONA, SUPRA; MURPHY V. WATERFRONT COMM'N, 378 U.S. 52 (1964);
ULLMANN V. UNITED STATES, 350 U.S. 422, 426 (1956); COUNSELMAN V.
HITCHCOCK, 142 U.S. 547 (1892).  AT THIS POINT IN OUR HISTORY VIRTUALLY
EVERY SCHOOLBOY IS FAMILIAR WITH THE CONCEPT, IF NOT THE LANGUAGE, OF
THE PROVISION THAT READS:  "NO PERSON . . . SHALL BE COMPELLED IN ANY
CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF . . . ."  THIS COURT'S
DECISIONS HAVE REFERRED TO THE RIGHT AS "THE MAINSTAY OF OUR ADVERSARY
SYSTEM OF CRIMINAL JUSTICE," JOHNSON V. NEW JERSEY, SUPRA, AT 729, AND
AS "'ONE OF THE GREAT LANDMARKS IN MAN'S STRUGGLE TO MAKE HIMSELF
CIVILIZED.'"  ULLMANN, SUPRA, AT 426.  IT IS NOT SURPRISING THAT THE
CONSTITUTION OF VIRTUALLY EVERY STATE HAS A COMPARABLE PROVISION.  8 J.
WIGMORE, EVIDENCE 2252 (MCNAUGHTON REV. 1961) (HEREINAFTER WIGMORE). 

THE IMPORTANCE OF A RIGHT DOES NOT, BY ITSELF, DETERMINE ITS SCOPE,
AND THEREFORE WE MUST CONTINUE TO HARK BACK TO THE HISTORICAL ORIGINS
OF THE PRIVILEGE, PARTICULARLY THE EVILS AT WHICH IT WAS TO STRIKE. 
THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION WAS DEVELOPED BY
PAINFUL OPPOSITION TO THE COURSE OF ECCLESIASTICAL INQUISITIONS AND
STAR CHAMBER PROCEEDINGS OCCURRING SEVERAL CENTURIES AGO.  SEE L. LEVY,
ORIGINS OF THE FIFTH AMENDMENT (1968); MORGAN, THE PRIVILEGE AGAINST
SELF-INCRIMINATION, 34 MINN. L. REV. 1 (1949); 8 WIGMORE 2250. 
CERTAINLY ANYONE WHO READS ACCOUNTS OF THOSE INVESTIGATIONS, WHICH
PLACED A PREMIUM ON COMPELLING SUBJECTS OF THE INVESTIGATION TO ADMIT
GUILT FROM THEIR OWN LIPS, CANNOT HELP BUT BE SENSITIVE TO THE FRAMERS'
DESIRE TO PROTECT CITIZENS AGAINST SUCH COMPULSION.  AS THIS COURT HAS
NOTED, THE PRIVILEGE AGAINST SELF-INCRIMINATION "WAS AIMED AT A . . .
FAR-REACHING EVIL--A RECURRENCE OF THE INQUISITION AND THE STAR
CHAMBER, EVEN IF NOT IN THEIR STARK BRUTALITY."  ULLMANN, SUPRA, AT
428. 

WHERE THERE HAS BEEN GENUINE COMPULSION OF TESTIMONY, THE RIGHT HAS
BEEN GIVEN BROAD SCOPE.  ALTHOUGH THE CONSTITUTIONAL LANGUAGE IN WHICH
THE PRIVILEGE IS CAST MIGHT BE CONSTRUED TO APPLY ONLY TO SITUATIONS IN
WHICH THE PROSECUTION SEEKS TO CALL A DEFENDANT TO TESTIFY AGAINST
HIMSELF AT HIS CRIMINAL TRIAL, ITS APPLICATION HAS NOT BEEN SO
LIMITED.  THE RIGHT HAS BEEN HELD APPLICABLE TO PROCEEDINGS BEFORE A
GRAND JURY, COUNSELMAN V. HITCHCOCK, SUPRA, TO CIVIL PROCEEDINGS,
MCCARTHY V. ARNDSTEIN, 266 U.S. 34 (1924), TO CONGRESSIONAL
INVESTIGATIONS, WATKINS V. UNITED STATES, 354 U.S. 178 (1957), TO
JUVENILE PROCEEDINGS, IN RE GAULT, 387 U.S. 1 (1967), AND TO OTHER
STATUTORY INQUIRIES, MALLOY V. HOGAN, 378 U.S. 1 (1964).  THE PRIVILEGE
HAS ALSO BEEN APPLIED AGAINST THE STATES BY VIRTUE OF THE FOURTEENTH
AMENDMENT.  IBID. 

THE NATURAL CONCERN WHICH UNDERLIES MANY OF THESE DECISIONS IS THAT
AN INABILITY TO PROTECT THE RIGHT AT ONE STAGE OF A PROCEEDING MAY MAKE
ITS INVOCATION USELESS AT A LATER STAGE.  FOR EXAMPLE, A DEFENDANT'S
RIGHT NOT TO BE COMPELLED TO TESTIFY AGAINST HIMSELF AT HIS OWN TRIAL
MIGHT BE PRACTICALLY NULLIFIED IF THE PROSECUTION COULD PREVIOUSLY HAVE
REQUIRED HIM TO GIVE EVIDENCE AGAINST HIMSELF BEFOFE A GRAND JURY. 
TESTIMONY OBTAINED IN CIVIL SUITS, OR BEFORE ADMINISTRATIVE OR
LEGISLATIVE COMMITTEES, COULD ALSO PROVE SO INCRIMINATING THAT A PERSON
COMPELLED TO GIVE SUCH TESTIMONY MIGHT READILY BE CONVICTED ON THE
BASIS OF THOSE DISCLOSURES IN A SUBSEQUENT CRIMINAL PROCEEDING.  /14/ 

IN MORE RECENT YEARS THIS CONCERN--THAT COMPELLED DISCLOSURES MIGHT
BE USED AGAINST A PERSON AT A LATER CRIMINAL TRIAL--HAS BEEN EXTENDED
TO CASES INVOLVING POLICE INTERROGATION.  BEFORE MIRANDA THE PRINCIPAL
ISSUE IN THESE CASES WAS NOT WHETHER A DEFENDANT HAD WAIVED HIS
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION BUT SIMPLY WHETHER HIS
STATEMENT WAS "VOLUNTARY."  IN STATE CASES THE COURT APPLIED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, EXAMINING THE CIRCUMSTANCES
OF INTERROGATION TO DETERMINE WHETHER THE PROCESSES WERE SO UNFAIR OR
UNREASONABLE AS TO RENDER A SUBSEQUENT CONFESSION INVOLUNTARY.  SEE,
E.G., BROWN V. MISSISSIPPE, 297 U.S. 278 (1936); CHAMBERS V. FLORIDA,
309 U.S. 227 (1940); SHITE V. TEXAS, 310 U.S. 530 (1940); PAYNE V.
ARKANSAS, 356 U.S. 560 (1958); HAYNES V. WASHINGTON, 373 U.S. 503
(1963).  SEE ALSO 3 J. WIGMORE, EVIDENCE 815 ET SEQ. (CHADBOURNE REV.
1970).  WHERE THE STATE'S ACTIONS OFFENDED THE STANDARDS OF FUNDAMENTAL
FAIRNESS UNDER THE DUE PROCESS CLAUSE, THE STATE WAS THEN DEPRIVED OF
THE RIGHT TO USE THE RESULTING CONFESSIONS IN COURT. 

ALTHOUGH FEDERAL CASES CONCERNING VOLUNTARY CONFESSIONS OFTEN
CONTAINED REFERENCES TO THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION, /15/  REFERENCES WHICH WERE STRONGLY CRITICIZED BY SOME
COMMENTATORS, SEE 8 WIGMORE 2266, /16/  IT WAS NOT UNTIL THIS COURT'S
DECISION IN MIRANDA THAT THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION WAS SEEN AS THE PRINCIPAL PROTECTION FOR A PERSON FACING
POLICE INTERROGATION.  THIS PRIVILEGE HAD BEEN MADE APPLICABLE TO THE
STATES IN MALLOY V. HOGAN, SUPRA, AND WAS THOUGHT TO OFFER A MORE
COMPREHENSIVE AND LESS SUBJECTIVE PROTECTION THAN THE DOCTRINE OF
PREVIOUS CASES.  IN MIRANDA THE COURT EXAMINED THE FACTS OF FOUR
SEPARATE CASES AND STATED: 

     "IN THESE CASES, WE MIGHT NOT FIND THE DEFENDANTS'  STATEMENTS

  TO HAVE BEEN INVOLUNTARY IN TRADITIONAL TERMS.  OUR CONCERN FOR

  ADEQUATE SAFEGUARDS TO PROTECT PRECIOUS FIFTH AMENDMENT RIGHTS

  IS, OF COURSE, NOT LESSENED IN THE SLIGHTEST.  . . . TO BE SURE,

  THE RECORDS DO NOT EVINCE OVERT PHYSICAL COERCION OR PATENT

  PSYCHOLOGICAL PLOYS.  THE FACT REMAINS THAT IN NONE OF THESE

CASES DID THE OFFICERS UNDERTAKE TO AFFORD APPROPRIATE SAFEGUARDS

  AT THE OUTSET OF THE INTERROGATION TO INSURE THAT THE STATEMENTS

  WERE TRULY THE PRODUCT OF FREE CHOICE."  384 U.S., AT 457. 

THUS THE COURT IN MIRANDA, FOR THE FIRST TIME, EXPRESSLY DECLARED THAT
THE SELF-INCRIMINATION CLAUSE WAS APPLICABLE TO STATE INTERROGATIONS AT
A POLICE STATION, AND THAT A DEFENDANT'S STATEMENTS MIGHT BE EXCLUDED
AT TRIAL DESPITE THEIR VOLUNTARY CHARACTER UNDER TRADITIONAL
PRINCIPLES.     TO SUPPLEMENT THIS NEW DOCTRINE, AND TO HELP POLICE
OFFICERS CONDUCT INTERROGATIONS WITHOUT FACING A CONTINUED RISK THAT
VALUABLE EVIDENCE WOULD BE LOST, THE COURT IN MIRANDA ESTABLISHED A SET
OF SPECIFIC PROTECTIVE GUIDELINES, NOW COMMONLY KNOWN AS THE MIRANDA
RULES.  THE COURT DECLARED THAT "THE PROSECUTION MAY NOT USE
STATEMENTS, WHETHER EXCULPATORY OR INCULPATORY, STEMMING FROM CUSTODIAL
INTERROGATION OF THE DEFENDANT UNLESS IT DEMONSTRATES THE USE OF
PROCEDURAL SAFEGUARDS EFFECTIVE TO SECURE THE PRIVILEGE AGAINST SELF
INCRIMINATION."  ID., AT 444.  A SERIES OF RECOMMENDED "PROCEDURAL
SAFEGUARDS"  THEN FOLLOWED.  THE COUR TIN PARTICULAR STATED:     "PRIOR
TO ANY QUESTIONING, THE PERSON MUST BE WARNED THAT HE HAS A RIGHT TO
REMAIN SILENT, THAT ANY STATEMENT HE DOES MAKE MAY BE USED AS EVIDENCE
AGAINST HIM, AND THAT HE HAS A RIGHT TO THE PRESENCE OF AN ATTORNEY,
EITHER RETAINED OR APPOINTED."  IBID.  THE COURT SAID THAT THE
DEFENDANT, OF COURSE, COULD WAIVE THESE RIGHTS, BUT THAT ANY WAIVER
MUST LHAVE BEEN MADE "VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY." 
IBID. 

THE COURT RECOGNIZED THAT THESE PROCEDURAL SAFEGUARDS WERE NOT
THEMSELVES RIGHTS PROTECTED BY THE CONSTITUTION BUT WERE INSTEAD
MEASURES TO INSURE THAT THE RIGHT AGAINST COMPULSORY SELF-INCRIMINATION
WAS PROTECTED.  AS THE COURT REMARKED: 

"(WE CANNOT SAY THAT THE CONSTITUTION NECESSARILY REQUIRES
ADHENERNCE TO ANY PARTICULAR SOLUTION FOR THE INHERENT COMPULSIONS OF
THE INTERROGATION PROCESS AS IT IS PRESENTLY CONDUCTED."  ID., AT 467. 
THE SUGGESTED SAFEGUARDS WERE NOT INTENDED TO "CREATE A CONSTITUTIONAL
STRAITJACKET," IBID., BUT RATHER TO PROVIDE PRACTICAL REINFORCEMENT FOR
THE RIGHT AGAINST COMPULSORY SELF-INCRIMINATION. 

A COMPARISON OF THE FACTS IN THIS CASE WITH THE HISTORICAL
CIRCUMSTANCES UNDERLYING THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION STRONGLY INDICATES THAT THE POLICE CONDUCT HERE DID NOT
DEPRIVE RESPONDENT OF HIS PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION AS SUCH, BUT RATHER FAILED TO MAKE AVAILABLE TO HIM THE
FULL MEASURE OF PROCEDURAL SAFEGUARDS ASSOCIATED WITH THAT RIGHT SINCE
MIRANDA.  CERTAINLY NO ONE COULD CONTEND THAT THE INTERROGATION FACED
BY RESPONDENT BORE ANY RESEMBLANCE TO THE HISTORICAL PRACTICES AT WHICH
THE RIGHT AGAINST COMPULSORY SELF-INCRIMINATION WAS AIMED.  THE
DISTRICT COURT IN THIS CASE NOTED THAT THE POLICE HAD "WARNED
(RESPONDENT) THAT HE HAD THE RIGHT TO REMAIN SILENT," 352 F. SUPP. 266,
267 (1972), AND THE RECORD IN THIS CASE CLEARLY SHOWS THAT RESPONDENT
WAS INFORMED THAT ANY EVIDENCE TAKEN COULD BE USED AGAINST HIM.  /17/
THE RECORD IS ALSO CLEAR THAT RESPONDENT WAS ASKED WHETHER HE WANTED AN
ATTORNEY AND THAT HE REPLIED THAT HE DID NOT.  /18/  THUS, HIS
STATEMENTS COULD HARDLY BE TERMED INVOLUNTARY AS THAT TERM HAS BEEN
DEFINED IN THE DECISIONS OF THIS COURT.  ADDITIONALLY, THERE WERE NO
LEGAL SANCTIONS, SUCH AS THE THREAT OF CONTEMPT, WHICH COULD HAVE BEEN
APPLIED TO RESPONDENT HAD HE CHOSEN TO REMAIN SILENT.  HE WAS SIMPLY
NOT EXPOSED TO "THE CRUEL TRILEMMA OF SELF-ACCUSATION, PERJURY OR
CONTEMPT."  MURPHY V. WATERFRONT COMM'N, 378 U.S., AT 55. 

OUR DETERMINATION THAT THE INTERROGATION IN THIS CASE INVOLVED NO
COMPULSION SUFFICIENT TO BREACH THE RIGHT AGAINST COMPULSORY SELF
INCRIMINATION DOES NOT MEAN THERE WAS NOT A DISREGARD, ALBEIT AN
INADVERTENT DISREGARD, OF THE PROCEDURAL RULES LATER ESTABLISHED IN
MIRANDA.  THE QUESTION FOR DECISION IS HOW SWEEPING THE JUDICIALLY
IMPOSED CONSEQUENCES OF THIS DISREGARD SHALL BE.  THIS COURT SAID IN
MIRANDA THAT STATEMENTS TAKEN IN VIOLATION OF THE MIRANDA PRINCIPLES
MUST NOT BE USED TO PROVE THE PROSECUTION'S CASE AT TRIAL.  THAT
REQUIREMENT WAS FULLY COMPLIED WITH BY THE STATE COURT HERE:
RESPONDENT'S STATEMENTS, CLAIMING THAT HE WAS WITH HENDERSON AND THEN
ASLEEP DURING THE TIME PERIOD OF THE CRIME WERE NOT ADMITTED AGAINST
HIM AT TRIAL.  THIS COURT HAS ALSO SAID, IN WONG SUN V. UNITED STATES,
371 U.S. 471 (1963), THAT THE "FRUITS" OF POLICE CONDUCT WHICH ACTUALLY
INFRINGED A DEFENDANT'S FOURTH AMENDMENT RIGHTS MUST BE SUPPRESSED. 
/19/  BUT WE HAVE ALREADY CONCLUDED THAT THE POLICE CONDUCT AT ISSUE
HERE DID NOT ABRIDGE RESPONDENT'S CONSTITUTIONAL PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION, BUT DEPARTED ONLY FROM THE PROPHYLACTIC
STANDARDS LATER LAID DOWN BY THIS COURT IN MIRANDA TO SAFEGUARD THAT
PRIVILEGE.  THUS, IN DECIDING WHETHER HENDERSON'S TESTIMONY MUST BE
EXCLUDED, THERE IS NO CONTROLLING PRECEDENT OF THIS COURT TO GUIDE US.
WE MUST THEREFORE EXAMINE THE MATTER AS A QUESTION OF PRINCIPLE. 

        IV 

JUST AS THE LAW DOES NOT REQUIRE THAT A DEFENDANT RECEIVE A PERFECT
TRIAL, ONLY A FAIR ONE, IT CANNOT REALISTICALLY REQUIRE THAT POLICEMEN
INVESTIGATING SERIOUS CRIMES MAKE NO ERRORS WHATSOEVER.  THE PRESSURES
OF LAW ENFORCEMENT AND THE VAGARIES OF HUMAN NATURE WOULD MAKE SUCH AN
EXPECTATION UNREALISTIC.  BEFORE WE PENALIZE POLICE ERROR, THEREFORE,
WE MUST CONSIDER WHETHER THE SANCTION SERVES A VALID AND USEFUL
PURPOSE. 

WE HAVE RECENTLY SAID, IN A SEARCH-AND-SEIZURE CONTEXT, THAT THE
EXCLUSIONARY RULE'S "PROME PURPOSE IS TO DETER FUTURE UNLAWFUL POLICE
CONDUCT AND THEREBY EFFECTUATE THE GUARANTEE OF THE FOURTH AMENDMENT
AGAINST UNREASONABLE SEARCHES AND SEIZURES."  UNITED STATES V.
CALANDRA, 414 U.S. 338, 347 (1974).  WE THEN CONTINUED: 

"'THE RULE IS CALCULATED TO PREVENT, NOT TO REPAIR.  ITS PURPOSE IS
TO DETER-TO COMPEL RESPECT FOR THE CONSTITUTIONAL GUARANTY IN THE ONLY
EFFECTIVELY AVAILABLE WAY--BY REMOVING THE INCENTIVE TO DISREGARD IT.' 
ELKINS V. UNITED STATES, 364 U.S. 206, 217 (1960)."  /20/  IBID. IN A
PROPER CASE THIS RATIONALE WOULD SEEM APPLICABLE TO THE FIFTH AMENDMENT
CONTEXT AS WELL. 

THE DETERRENT PURPOSE OF THE EXCLUSIONARY RULE NECESSARILY ASSUMES
THAT THE POLICE HAVE ENGAGED IN WILLFUL, OR AT THE VERY LEAST
NEGLIGENT, CONDUCT WHICH HAS DEPRIVED THE DEFENDANT OF SOME RIGHT.  BY
REFUSING TO ADMIT EVIDENCE GAINED AS A RESULT OF SUCH CONDUCT, THE
COURTS HOPE TO INSTILL IN THOSE PARTICULAR INVESTIGATING OFFICERS, OR
IN THEIR FUTURE COUNTERPARTS, A GREATER DEGREE OF CARE TOWARD THE
RIGHTS OF AN ACCUSED.  WHERE THE OFFICIAL ACTION WAS PURSUED IN
COMPLETE GOOD FAITH, HOWEVER, THE DETERRENCE RATIONALE LOSES MUCH OF
ITS FORCE. 

WE CONSIDER IT SIGNIFICANT TO OUR DECISION IN THIS CASE THAT THE
OFFICERS' FAILURE TO ADVISE RESPONDENT OF HIS RIGHT TO APPOINTED
COUNSEL OCCURRED PRIOR TO THE DECISION IN MIRANDA.  ALTHOUGH WE HAVE
BEEN URGED TO RESOLVE THE BROAD QUESTION OF WHETHER EVIDENCE DERIVED
FROM STATEMENTS TAKEN IN VIOLATION OF THE MIRANDA RULES MUST BE
EXCLUDED REGARDLESS OF WHEN THE INTERROGATION TOOK PLACE, /21/  WE
INSTEAD PLACE OUR HOLDING ON A NARROWER GROUND.  FOR AT THE TIME
RESPONDENT WAS QUESTIONED THESE POLICE OFFICERS WERE GUIDED, QUITE
RIGHTLY, BY THE PRINCIPLES ESTABLISHED IN ESCOBEDO V. ILLINOIS, 378
U.S. 478 (1964), PARTICULARLY FOCUSING ON THE SUSPECT'S OPPORTUNITY TO
HAVE RETAINED COUNSEL WITH HIM DURING THE INTERROGATION IF HE CHOSE TO
DO SO.  /22/  THUS, THE POLICE ASKED RESPONDENT IF HE WANTED COUNSEL,
AND HE ANSWERED THAT HE DID NOT.  THE STATEMENTS ACTUALLY MADE BY
RESPONDENT TO THE POLICE, AS WE HAVE OBSERVED, WERE EXCLUDED AT TRIAL
IN ACCORDANCE WITH JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966). 
WHATEVER DETERRENT EFFECT ON FUTURE POLICE CONDUCT THE EXCLUSION OF
THOSE STATEMENTS MAY HAVE HAD, WE DO NOT BELIEVE IT WOULD BE
SIGNIFICANTLY AUGMENTED BY EXCLUDING THE TESTIMONY OF THE WITNESS
HENDERSON AS WELL. 

WHEN INVOLUNTARY STATEMENTS OR THE RIGHT AGAINST COMPULSORY SELF
INCRIMINATION ARE INVOLVED, A SECOND JUSTIFICATION FOR THE EXCLUSIONARY
RULE ALSO HAS BEEN ASSERTED:  PROTECTION OF THE COURTS FROM RELIANCE ON
UNTRUSTWORTHY EVIDENCE.  /23/  CASES WHICH INVOLVE THE SELF
INCRIMINATION CLAUSE MUST, BY DEFINITION, INVOLVE AN ELEMENT OF
COERCION, SINCE THE CLAUSE PROVIDES ONLY THAT A PERSON SHALL NOT BE
COMPELLED TO GIVE EVIDENCE AGAINST HIMSELF.  AND CASES INVOLVING
STATEMENTS OFTEN DEPICT SEVERE PRESSURES WHICH MAY OVERRIDE A
PARTICULAR SUSPECT'S INSISTENCE ON INNOCENCE.  FACT SITUATIONS RANGING
FROM CLASSICAL THIRD-DEGREE TORTURE, BROWN V. MISSISSIPPI, 297 U.S. 278
(1936), TO PROLONGED ISOLATION FROM FAMILY OR FRIENDS IN A HOSTILE
SETTING, GALLEGOS V. COLORADO, 370 U.S. 49 (1962), OR TO A SIMPLE
DESIRE ON THE PART OF A PHYSICALLY OR MENTALLY EXHAUSTED SUSPECT TO
HAVE A SEEMINGLY ENDLESS INTERROGATION END, WATTS V. INDIANA, 338 U.S.
49 (1949), ALL MIGHT BE SUFFICIENT TO CAUSE A DEFENDANT TO ACCUSE
HIMSELF FALSELY. 

BUT THOSE SITUATIONS ARE A FAR CRY FROM THAT PRESENTED HERE.  THE
PRESSURES ON RESPONDENT TO ACCUSE HIMSELF WERE HARDLY COMPARABLE EVEN
WITH THE LEAST PREJUDICIAL OF THOSE PRESSURES WHICH HAVE BEEN DEALT
WITH IN OUR CASES.  MORE IMPORTANT, THE RESPONDENT DID NOT ACCUSE
HIMSELF.  THE EVIDENCE WHICH THE PROSECUTION SUCCESSFULLY SOUGHT TO
INTRODUCE WAS NOT A CONFESSION OF GUILT BY RESPONDENT, OR INDEED EVEN
AN EXCULPATORY STATEMENT BY RESPONDENT, BUT RATHER THE TESTIMONY OF A
THIRD PARTY WHO WAS SUBJECTED TO NO CUSTODIAL PRESSURES.  THERE IS
PLAINLY NO REASON TO BELIEVE THAT HENDERSON'S TESTIMONY IS
UNTRUSTWORTHY SIMPLY BECAUSE RESPONDENT WAS NOT ADVISED OF HIS RIGHT TO
APPOINTED COUNSEL.  HENDERSON WAS BOTH AVAILABLE AT TRIAL AND SUBJECT
TO CROSS-EXAMINATION BY RESPONDENT'S COUNSEL, AND COUNSEL FULLY USED
THIS OPPORTUNITY, SUGGESTING IN THE COURSE OF HIS CROSS-EXAMINATION
THAT HENDERSON'S CHARACTER WAS LESS THAN EXEMPLARY AND THAT HE HAD BEEN
OFFERED INCENTIVES BY THE POLICE TO TESTIFY AGAINST RESPONDENT.  /24/
THUS THE RELIABILITY OF HIS TESTIMONY WAS SUBJECT TO THE NORMAL TESTING
PROCESS OF AN ADVERSARY TRIAL. 

RESPONDENT CONTENDS THAT AN ADDITIONAL REASON FOR EXCLUDING
HENDERSON'S TESTIMONY IS THE NOTION THAT THE ADVERSARY SYSTEM REQUIRES
"THE GOVERNMENT IN ITS CONTEST WITH THE INDIVIDUAL TO SHOULDER THE
ENTIRE LOAD."  8 WIGMORE 2251, P. 317; MURPHY V. WATERFRONT COMM'N, 378
U.S., AT 55; MIRANDA V. ARIZONA, 384 U.S., AT 460.  TO THE EXTENT THAT
THIS SUGGESTED BASIS FOR THE EXCLUSIONARY RULE IN FIFTH AMENDMENT CASES
MAY EXIST INDEPENDENTLY OF THE DETERRENCE AND TRUSTWORTHINESS
RATIONALES, WE THINK IT OF NO AVAIL TO RESPONDENT HERE.  SUBJECT TO
APPLICABLE CONSTITUTIONAL LIMITATIONS, THE GOVERNMENT IS NOT FORBIDDEN
ALL RESORT TO THE DEFENDANT TO MAKE OUT ITS CASE.  IT MAY REQUIRE THE
DEFENDANT TO GIVE PHYSICAL EVIDENCE AGAINST HIMSELF, SEE SCHMERBER V.
CALIFORNIA, 384 U.S. 757 (1966); UNITED STATES V. DIONISIO, 410 U.S. 1
(1973), AND IT MAY USE STATEMENTS WHICH ARE VOLUNTARILY GIVEN BY THE
DEFENDANT AFTER HE RECEIVES FULL DISCLOSURE OF THE RIGHTS OFFERED BY
MIRANDA.  HERE WE DEAL, NOT WITH THE OFFER OF RESPONDENT'S OWN
STATEMENTS IN EVIDENCE, BUT ONLY WITH THE TESTIMONY OF A WITNESS WHOM
THE POLICE DISCOVERED AS A RESULT OF RESPONDENT'S STATEMENTS.  THIS
RECOURSE TO RESPONDENT'S VOLUNTARY STATEMENTS DOES NO VIOLENCE TO SUCH
ELEMENTS OF THE ADVERSARY SYSTEM AS MAY BE EMBODIED IN THE FIFTH,
SIXTH, AND FOURTEENTH AMENDMENTS. 

IN SUMMARY, WE DO NOT THINK THAT ANY SINGLE REASON SUPPORTING
EXCLUSION OF THIS WITNESS' TESTIMONY, NOR ALL OF THEM TOGETHER, ARE
VERY PERSUASIVE.  /25/  BY CONTRAST, WE FIND THE ARGUMENTS IN FAVOR OF
ADMITTING THE TESTIMONY QUITE STRONG.  FOR, WHEN BALANCING THE
INTERESTS INVOLVED, WE MUST WEIGH THE STRONG INTEREST UNDER ANY SYSTEM
OF JUSTICE OF MAKING AVAILABLE TO THE TRIER OF FACT ALL CONCEDEDLY
RELEVANT AND TRUSTWORTHY EVIDENCE WHICH EITHER PARTY SEEKS TO ADDUCE. 
IN THIS PARTICULAR CASE WE ALSO "MUST CONSIDER SOCIETY'S INTEREST IN
THE EFFECTIVE PROSECUTION OF CRIMINALS IN LIGHT OF THE PROTECTION OUR
PRE-MIRANDA STANDARDS AFFORD CRIMINAL DEFENDANTS."  JENKINS V.
DELAWARE, 395 U.S. 213, 221 (1969).  THESE INTERESTS MAY BE OUTWEIGHED
BY THE NEED TO PROVIDE AN EFFECTIVE SANCTION TO A CONSTITUTIONAL RIGHT,
WEEKS V. UNITED STATES, 232 U.S. 383 (1914), BUT THEY MUST IN ANY EVENT
BE VALUED.  HERE RESPONDENT'S OWN STATEMENT, WHICH MIGHT HAVE HELPED
THE PROSECUTION SHOW RESPONDENT'S GUILTY CONSCIENCE AT TRIAL, HAD
ALREADY BEEN EXCISED FROM THE PROSECUTION'S CASE PURSUANT TO THIS
COURT'S JOHNSON DECISION.  TO EXTEND THE EXCISION FURTHER UNDER THE
CIRCUMSTANCES OF THIS CASE AND EXCLUDE RELEVANT TESTIMONY OF A THIRD
PARTY WITNESS WOULD REQUIRE FAR MORE PERSUASIVE ARGUMENTS THAN THOSE
ADVANCED BY RESPONDENT. 

THIS COURT HAS ALREADY RECOGNIZED THAT A FAILURE TO GIVE
INTERROGATED SUSPECTS FULL MIRANDA WARNINGS DOES NOT ENTITLE THE
SUSPECT TO INSIST THAT STATEMENTS MADE BY HIM BE EXCLUDED IN EVERY
CONCEIVABLE CONTEXT.  IN HARRIS V. NEW YORK, 401 U.S. 222 (1971), THE
COURT WAS FACED WITH THE QUESTION OF WHETHER THE STATEMENTS OF THE
DEFENDANT HIMSELF, TAKEN WITHOUT INFORMING HIM OF HIS RIGHT OF ACCESS
TO APPOINTED COUNSEL, COULD BE USED TO IMPEACH DEFENDANT'S DIRECT
TESTIMONY AT TRIAL.  THE COURT CONCLUDED THAT THEY COULD, SAYING: 

     "SOME COMMENTS IN THE MIRANDA OPINION CAN INDEED BE READ AS

  INDICATING A BAR TO USE OF AN UNCOUNSELED STATEMENT FOR ANY

  PURPOSE, BUT DISCUSSION OF THAT ISSUE WAS NOT AT ALL NECESSARY TO

  THE COURT'S HOLDING AND CANNOT BE REGARDED AS CONTROLLING. 

  MIRANDA BARRED THE PROSECUTION FROM MAKING ITS CASE WITH

  STATEMENTS OF AN ACCUSED MADE WHILE IN CUSTODY PRIOR TO HAVING OR

  EFFECTIVELY WAIVING COUNSEL.  IT DOES NOT FOLLOW FROM MIRANDA

 THAT EVIDENCE INADMISSIBLE AGAINST AN ACCUSED IN THE

PROSECUTION'S CASE IN CHIEF IS BARRED FOR ALL PURPOSES, PROVIDED

  OF COURSE THAT THE TRUSTWORTHINESS OF TH EVIDENCE SATISFIES LEGAL

  STANDARDS."  ID., AT 224. 

WE BELIEVE THAT THIS REASONING IS EQUALLY APPLICABLE HERE.  ALTHOUGH
JOHNSON ENABLED RESPONDENT TO BLOCK ADMISSION OF HIS OWN STATEMENTS, WE
DO NOT BELIEVE THAT IT REQUIRES THE PROSECUTION TO REFRAIN FROM ALL USE
OF THOSE STATEMENTS, AND WE DISAGREE WITH THE COURTS BELOW THAT
HENDERSON'S TESTIMONY SHOULD HAVE BEEN EXCLUDED IN THIS CASE.  /26/
         REVERSED. 

/1/  352 F. SUPP. 266 (1972). 

/2/  480 F.2D 927 (1973). 

/3/  TR. OF PRELIM.  HEARING 99. 

/4/  IBID. 

/5/  ID., AT 99 - 100. 

/6/  TR. OF TRIAL 223.     /7/  IBID. 

/8/  ID., AT 224. 

/9/ IBID. 

/10/  IBID. 

/11/  19 MICH. APP. 320, 172 N. W. 2D 712 (1969). 

/12/  385 MICH. 594, 189 N.W. 2D 290 (1971). 

/13/  352 F. SUPP., AT 268. 

/14/  THE COURT HAS ALSO HELD THAT COMMENT ON A DEFENDANT'S SILENCE
OR REFUSAL TO TAKE THE WITNESS STAND MAY BE AN IMPERMISSIBLE PENALTY ON
EXERCISE OF THE PRIVILEGE.  SEE GRIFFIN V. CALIFORNIA, 380 U.S. 609
(1965). 

/15/  FOR EXAMPLE IN BRAM V. UNITED STATES, 168 U.S. 532, 542
(1897), THE COURT STATED: 

"IN CRIMINAL TRIALS, IN THE COURTS OF THE UNITED STATES, WHEREVER A
QUESTION ARISES WHETHER A CONFESSION IS INCOMPETENT BECAUSE NOT
VOLUNTARY, THE ISSUE IS CONTROLLED BY THAT PORTION OF THE FIFTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, COMMANDING THAT NO
PERSON 'SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF.'"  AS NOTED IN THE TEST, THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION WAS NOT HELD APPLICABLE AGAINST THE STATES UNTIL MALLOY
V. HOGAN, 378 U.S. 1 (1964). 

/16/  WIGMORE STATES HIS OBJECTION IN THE FOLLOWING TERMS:  "TODAY
IN THE UNITED STATES CONFESSIONS, AND PROBABLY EVEN LESSER SELF
INCRIMINATING ADMISSIONS, ARE EXCLUDED DESPITE THEIR TRUSTWORTHINESS IF
COERCED.  THE POLICIES LEADING TO THIS RECENT EXTENSION OF THE
CONFESSION RULE ARE QUITE SIMILAR TO THOSE UNDERLYING THE PRIVILEGE
AGAINST SELF-INCRIMINATION.  IT IS THUS NOT SURPRISING THAT THE
PRIVILEGE, WITH ITS UNCLEAR BOUNDARIES AND APPARENTLY UNENDING CAPACITY
FOR TRANSMOGRIFICATION AND ASSIMILATION, IS NOW SOMETIMES INVOKED TO
EFFECT EXCLUSION EVEN THOUGH THE DISCLOSURE WAS NOT COMPELLED FROM A
PERSON UNDER LEGAL COMPULSION.  DISTORTION OF THE PRIVILEGE TO COVER
SUCH SITUATIONS IS NOT NECESSARY.  IF TRUSTWORTHY CONFESSIONS ARE TO BE
EXCLUDED BECAUSE COERCED, IT SHOULD BE DONE FRANKLY AS AN EXCEPTION TO
THE PRINCIPLE . . . THAT THE ILLEGALITY OF SOURCE OF EVIDENCE IS
IMMATERIAL.  IT SHOULD BE DONE, AS IT USUALLY IS, ON THE GROUND THAT
THE COMBINATION OF COERCION AND USE OF THE EVIDENCE IN THE PARTICULAR
CASE VIOLATES THE RELEVANT CONSTITUTIONAL DUE PROCESS CLAUSE."  ID., AT
402.  (CITATIONS OMITTED.) 

/17/  SEE N. 5, SUPRA. 

/18/  SEE NN. 3 AND 4, SUPRA. 

/19/  IN WONG SUN THE POLICE DISCOVERED EVIDENCE THROUGH STATEMENTS
MADE BY THE ACCUSED AFTER HE HAD BEEN PLACED UNDER ARREST.  THIS COURT,
FINDING THAT THE ARREST HAD OCCURRED WITHOUT PROBABLE CAUSE, HELD THAT
THE DERIVATIVE EVIDENCE COULD NOT BE INTRODUCED AGAINST THE ACCUSED AT
TRAIL.  FOR THE REASONS STATED IN THE TEST WE DO NOT BELIEVE THAT WONG
SUN CONTROLS THE CASE BEFORE US. 

/20/ THE OPINION ALSO RELIED UPON MAPP V. OHIO, 367 U.S. 643, 656
(1961); TEHAN V. UNITED STATES EX REL. SHOTT, 382 U.S. 406, 416 (1966);
AND TERRY V. OHIO, 392 U.S. 1, 29 (1968).  SEE 414 U.S., AT 348. 

/21/  BRIEF FOR UNITED STATES AS AMICUS CURIAE 31 ET SEQ.; BRIEF FOR
RESPONDENT 9 ET SEQ. 

/22/  AS PREVIOUSLY NOTED, THE DEFENDANT IN ESCOBEDO HAD REPEATEDLY
ASKED TO SEE HIS LAWYER WHO WAS AVAILABLE AT THE POLICE STATION.  THOSE
REQUESTS WERE DENIED, AND THE DEFENDANT ULTIMATELY CONFESSED.  THUS, IN
DIRECT CONTRAST TO THE SITUATION HERE, THE DEFENDANT IN ESCOBEDO WAS
TOLD HE DID NOT HAVE A RIGHT TO SEE HIS LAWYER, ALTHOUGH HE HAD
EXPRESSLY STATED HIS DESIRE TO DO SO. 

/23/  THE COURT HAS MADE CLEAR THAT THE TRUTH OR FALSITY OF A
STATEMENT IS NOT THE DETERMINING FACTOR IN THE DECISION WHETHER OR NOT
TO EXCLUDE IT.  JACKSON V. DENNO, 378 U.S. 368 (1964).  THUS A STATE
WHICH HAS OBTAINED A COERCED OR INVOLUNTARY STATEMENT CANNOT ARGUE FOR
ITS ADMISSIBILITY ON THE GROUND THAT OTHER EVIDENCE DEMONSTRATES ITS
TRUTHFULNESS.  IBID.  BUT IT ALSO SEEMS CLEAR THAT COERCED STATEMENTS
HAVE BEEN REGARDED WITH SOME MISTRUST.  THE COURT IN ESCOBEDO, FOR
EXAMPLE, STATED THAT "A SYSTEM OF CRIMINAL LAW ENFORCEMENT WHICH COMES
TO DEPEND ON THE 'CONFESSION' WILL, IN THE LONG RUN, BE LESS RELIABLE
AND MORE SUBJECT TO ABUSES" THAN A SYSTEM RELYING ON INDEPENDENT
INVESTIGATION, 378 U.S., AT 488 - 489.  THE COURT THEN CITED SEVERAL
AUTHORITIES CONCERNED WITH FALSE CONFESSIONS.  ID., AT 489 N. 11. 
ALTHOUGH COMPLETELY VOLUNTARY CONFESSIONS MAY, IN MANY CASES, ADVANCE
THE CAUSE OF JUSTICE AND REHABILITATION, COERCED CONFESSIONS, BY THEIR
NATURE, CANNOT SERVE THE SAME ENDS. 

/24/  TR. OF TRIAL 226 - 234. 

/25/  IT HAS BEEN SUGGESTED THAT COURTS SHOULD EXCLUDE EVIDENCE
DERIVED FROM "LAWLESS INVASIONS OF THE CONSTITUTIONAL RIGHTS OF
CITIZENS," TERRY V. OHIO, 392 U.S., AT 13, IN RECOGNITION OF "THE
IMPERATIVE OF JUDICIAL INTEGRITY."  ELKINS V. UNITED STATES, 364 U.S.
206, 222 (1960).  THIS RATIONALE, HOWEVER, IS REALLY AN ASSIMILATION OF
THE MORE SPECIFIC RATIONALES DISCUSSED IN THE TEXT OF THIS OPINION, AND
DOES NOT IN THEIR ABSENCE PROVIDE AN INDEPENDENT BASIS FOR EXCLUDING
CHALLENGED EVIDENCE. 

/26/  OUR BROTHER BRENNAN IN HIS OPINION CONCURRING IN THE JUDGMENT
TREATS THE PRINCIPAL QUESTION HERE SIMPLY AS A LINEAL DESCENDANT OF THE
ONE DECIDED IN LINKLETTER V. WALKER, 381 U.S. 618 (1965), TO BE
ANALYZED ONLY IN TERMS OF THE RETROACTIVITY FRAMEWORK ESTABLISHED IN
THAT AND SUBSEQUENT DECISIONS.  WHILE HIS APPROACH HAS A BEGUILING
SIMPLICITY, WE BELIEVE IT MARKS A SIGNIFICANT AND UNSETTLING DEPARTURE
FROM THE PAST PRACTICE OF THE COURT IN THIS AREA.  OUR RETROACTIVITY
CASES, FROM LINKLETTER V. WALKER, SUPRA, TO GOSA V. MAYDEN, 413 U.S.
665 (1973), ALL HAVE IN COMMON A PARTICULAR FACTUAL PREDICATE:  A
PREVIOUS CONSTITUTIONAL DECISION OF THIS COURT GOVERNS THE FACTS OF AN
EARLIER DECIDED CASE UNLESS THE CONSTITUTIONAL DECISION IS NOT TO HAVE
RETROACTIVE EFFECT.  THE DOCTRINE OF RETROACTIVITY DOES NOT MODIFY THE
SUBSTANTIVE SCOPE OF THE CONSTITUTIONAL DECISION BUT RATHER DETERMINES
THE POINT IN TIME WHEN IT IS HELD TO APPLY. 

THAT COMMON FACTUAL PREDICATE IS ABSENT HERE.  NO DEFENDANT IN
MIRANDA SOUGHT TO BLOCK EVIDENCE OF THE TYPE CHALLENGED IN THIS CASE,
AND THE HOLDING OF MIRANDA, EVEN IF MADE FULLY RETROACTIVE, WOULD NOT
THEREFORE RESOLVE THE QUESTION OF WHETHER HENDERSON'S TESTIMONY MUST
ALSO BE EXCLUDED AT TRAIL.  CONTRARY, THEREFORE, TO THE SUGGESTION IN
OUR BROTHER'S OPINION THAT THE QUESTION HERE IS WHETHER TO "LIMIT THE
EFFECT OF JOHNSON V. NEW JERSEY," POST, AT 454 N. 1, JOHNSON HAS NEVER
BEEN THOUGHT CONTROLLING ON THE QUESTION OF FRUITS, FOR THE SIMPLE
REASON THAT THE PARENT MIRANDA CASE DID NOT REACH THAT ISSUE. 

OUR BROTHER BRENNAN'S METHOD OF DISPOSITION IS TO DETERMINE IN THE
PRESENT CASE THE RETROACTIVITY OF A HOLDING WHICH THE COURT HAS YET TO
MAKE.  HE WOULD SAY, IN EFFECT, THAT IF THE COURT SHOULD LATER
DETERMINE THAT MIRANDA REQUIRES EXCLUSION OF FRUITS SUCH AS THE
TESTIMONY OF HENDERSON, NONETHELESS THAT DETERMINATION SHALL NOT BE
APPLIED RETROACTIVELY.  BUT THIS APPROACH WHOLLY SUBVERTS THE
HERETOFORE ESTABLISHED RELATIONSHIP BETWEEN THE PARENT CASE AND THE
SUBSIDIARY CASE DETERMINING WHETHER OR NOT TO APPLY THE PARENT CASE
RETROACTIVELY.  UNDER THE FRAMEWORK OF THE ANALYSIS ESTABLISHED IN
LINKLETTER, SUPRA, AND IN SUBSEQUENT CASES, IT WOULD SEEM INDISPENSABLE
TO UNDERSTAND THE BASIS FOR A CONSTITUTIONAL HOLDING OF THE COURT IN
ORDER TO LATER DETERMINE WHETHER THAT HOLDING SHOULD BE RETROACTIVE. 
YET EX HYPOTHESI OUR BROTHER HAS NO SUCH ANALYSIS AVAILABLE, SINCE THE
CASE HAS YET TO BE DECIDED.  CASES WHICH SUBSEQUENTLY DETERMINE THE
RETROACTIVITY OF A CONSTITUTIONAL HOLDING HAVE GIVEN THE COURT ENOUGH
OCCASION FOR CONCERN WITHOUT SUBSTANTIALLY INCREASING THE DIFFICULTY OF
THAT TYPE OF DECISION BY MAKING IT BEFORE, RATHER THAN AFTER, THE
CONSTITUTIONAL HOLDING. 

MR. JUSTICE STEWART, CONCURRING. 

IN JOINING THE OPINION OF THE COURT, I ADD ONLY THAT I COULD ALSO
JOIN MR. JUSTICE BRENNAN'S CONCURRENCE.  FOR IT SEEMS TO ME THAT
DESPITE DIFFERENCES IN PHRASEOLOGY, AND DESPITE THE DISCLAIMERS OF
THEIR RESPECTIVE AUTHORS, THE COURT OPINION AND THAT OF MR. JUSTICE
BRENNAN PROCEED ALONG VIRTUALLY PARALLEL LINES, GIVE OR TAKE A COUPLE
OF ARGUMENTATIVE FOOTNOTES. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING IN THE JUDGMENT. 

THE COURT FINDS IT UNNECESSARY TO DECIDE "THE BROAD QUESTION" OF
WHETHER THE FRUITS OF "STATEMENTS TAKEN IN VIOLATION OF THE MIRANDA
RULES MUST BE EXCLUDED REGARDLESS OF WHEN THE INTERROGATION TOOK
PLACE," ANTE, AT 447, SINCE RESPONDENT'S INTERROGATION OCCURRED PRIOR
TO OUR DECISION IN MIRANDA V. ARIZONA, 384 U.S. 436 (1966).  IN MY
VIEW, HOWEVER, IT IS UNNECESSARY, TOO, FOR THE COURT TO ADDRESS THE
NARROWER QUESTION OF WHETHER THE PRINCIPLES OF MIRANDA REQUIRE THAT
FRUITS BE EXCLUDED WHEN OBTAINED AS A RESULT OF A PRE-MIRANDA
INTERROGATION WITHOUT THE REQUISITE PRIOR WARNINGS.  THE COURT, IN
ANSWERING THIS QUESTION, PROCEEDS FROM THE PREMISE THAT JOHNSON V. NEW
JERSEY, 384 U.S. 719 (1966), MAKES MIRANDA APPLICABLE TO ALL CASES IN
WHICH A CRIMINAL TRIAL WAS COMMENCED AFTER THE DATE OF OUR DECISION IN
MIRANDA, AND THAT, SINCE RESPONDENT'S TRIAL WAS POST-MIRANDA, THE
EFFECT OF MIRANDA ON THIS CASE MUST BE RESOLVED.  I WOULD NOT READ
JOHNSON AS MAKING MIRANDA APPLICABLE TO THIS CASE.  /1/ 

FRANK ACKNOWLEDGMENT THAT RETROACTIVE APPLICATION OF NEWLY ANNOUNCED
CONSTITUTIONAL RULES OF CRIMINAL PROCEDURE MAY HAVE A SERIOUS IMPACT ON
THE ADMINISTRATION OF CRIMINAL JUSTICE HAS LED US, SINCE LINKLETTER V.
WALKER, 381 U.S. 618 (1965), TO DETERMINE RETROACTIVITY IN TERMS OF
THREE CRITERIA:  (1) THE PURPOSE SERVED BY THE NEW RULES; (2) THE
EXTENT OF LAW ENFORCEMENT OFFICIALS' JUSTIFIABLE RELIANCE ON PRIOR
STANDARDS; AND (3) THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A
RETROACTIVE APPLICATION OF THE NEW RULES.  SEE, E.G., MICHIGAN V.
PAYNE, 412 U.S. 47, 51 (1973); STOVALL V. DENNO, 388 U.S. 293, 297
(1967); TEHAN V. UNITED STATES EX REL. SHOTT, 382 U.S. 406, 410 - 418
(1966).  WE HAVE AS A GENERAL MATTER LIMITED OUR DISCUSSION OF THE
RELEVANT "PURPOSE" OF NEW RULES TO THEIR FUNCTIONAL VALUE IN ENHANCING
THE RELIABILITY OF THE FACTFINDING PROCESS.  SEE, E.G., WILLIMAS V.
UNITED STATES, 401 U.S. 646, 653 (1971); ID., AT 663 (CONCURRING
OPINION); DESIST V. UNITED STATES, 394 U.S. 244, 249 - 250 (1969);
ROBERTS V. RUSSELL, 392 U.S. 293, 294 (1968); TEHAN V. UNITED STATES EX
REL. SHOTT, SUPRA; LINKLETTER V. WALKER, SUPRA, AT 638 - 639.  THIS
LIMITING APPROACH HAS BEEN TAKEN IN RECOGNITION THAT "(THE BASIC
PURPOSE OF A TRIAL IS THE DETERMINATION OF TRUTH," TEHAN V. UNITED
STATES EX REL. SHOTT, SUPRA, AT 416; SEE STOVALL V. DENNO, SUPRA, AT
297 - 298, AND THAT THE PRINCIPAL LEGITIMATE INTEREST OF A CONVICTED
DEFENDANT IS THEREFORE ASSURANCE THAT THE FACTFINDING PROCESS AT HIS
TRIAL WAS NOT UNDULY IMPAIRED BY ADHERENCE TO THE OLD STANDARDS. 

IN JOHNSON V. NEW JERSEY, SUPRA, THE COURT WAS CALLED UPON TO
DETERMINE WHETHER THE NEWLY ANNOUNCED PROCEDURES IN MIRANDA V. ARIZONA
SHOULD BE RETROACTIVELY APPLIED TO UPSET FINAL CONVICTIONS BASED IN
PART UPON CONFESSIONS OBTAINED WITHOUT THE PRIOR WARNINGS REQUIRED BY
MIRANDA.  AWARE THAT MIRANDA PROVIDED NEW SAFEGUARDS AGAINST THE
POSSIBLE USE AT TRIAL OF UNRELIABLE STATEMENTS OF THE ACCUSED, WE
NONETHELESS CONCLUDED THAT THE DECISION SHOULD NOT BE RETROACTIVELY
APPLIED.  /2/  THE PROBABILITY THAT THE TRUTH-DETERMINING PROCESS WAS
DISTORTED BY, AND INDIVIDUALS WERE CONVICTED ON THA BASIS OF, COERCED
CONFESSIONS WAS MINIMIZED, WE FOUND, BY THE AVAILABILITY OF STRICT PRE
MIRANDA STANDARDS TO TEST THE VOLUNTARINESS OF CONFESSIONS.  384 U.S.,
AT 730.  IN ADDITION, WE RECOGNIZED THAT LAW ENFORCEMENT AGENCIES HAD
JUSTIFIABLY RELIED ON OUR PRIOR RULINGS AND THAT RETROACTIVE
APPLICATION WOLD NECESSITATE THE WHOLESALE RELEASE AND SUBSEQUENT
RETRIAL OF VAST NUMBERS OF PRISONERS.  ID., AT 731.  THEN, IN
STATEMENTS UNNECESSARY TO OUR DECISION--SINCE ALL OF THE CONVICTIONS OF
THE PETITIONERS IN JOHNSON HAD LONG SINCE BECOME FINAL AT THE TIME OF
OUT DECISION IN MIRANDA--WE WENT ON TO SAY THAT OUR NEWLY ANNOUNCED
MIRANDA RULES SHOULD BE APPLIED TO TRIALS BEGUN AFTER THE DATE THAT
DECISION WAS ANNOUNCED.  ID., AT 732. 

THE CONCLUSION THAT THE MIRANDA RULES SHOULD BE APPLIED TO POST
MIRANDA TRIALS MADE GOOD SENSE, WHERE CRIMINAL DEFENDANTS WERE SEEKING
TO EXCLUDE DIRECT STATEMENTS MADE WITHOUT PRIOR WARNING OF THEIR
RIGHTS.  EXCLUSION OF POSSIBLY UNRELIABLE PRE-MIRANDA STATEMENTS MADE
IN THE INHERENTLY COERCIVE ATMOSPHERE OF IN-CUSTODY INTERROGATION, SEE
MIRANDA V. ARIZONA, 384 U.S., AT 457 - 458, 467, 470, COULD BE OBTAINED
AT A RELATIVELY LOW COST.  FOR, ALTHOUGH THE POLICE MIGHT HAVE RELIED
IN GOOD FAITH ON OUR PRIOR RULINGS IN INTERROGATING DEFENDANTS WITHOUT
FIRST ADVISING THEM OF THEIR RIGHTS, MIRANDA PUT THE POLICE ON NOTICE
THAT PRE-MIRANDA CONFESSIONS OBTAINED WITHOUT PRIOR WARNINGS WOULD BE
INADMISSIBLE AT DEFENDANTS' TRIALS.  SINCE DEFENDANTS WHO HAD MADE PRE
MIRANDA CONFESSIONS HAD NOT YET GONE TO TRIAL, AND THE POLICE
INVESTIGATIONS INTO THOSE CASES WERE STILL FRESH, JOHNSON ENVISIONED
"NO UNDUE BURDEN (BEING) IMPOSED UPON PROSECUTING AUTHORITIES BY
REQUIRING THEM TO FIND EVIDENTIARY SUBSTITUTES FOR STATEMENTS OBTAINED
IN VIOLATION OF THE CONSTITUTIONAL PROTECTIONS AFFORDED BY MIRANDA." 
JENKINS V. DELAWARE, 395 U.S. 213, 219 - 220 (1969); SEE JOHNSON V. NEW
JERSEY, 384 U.S., AT 732.     APPLICATION OF THE MIRANDA STANDARDS TO
THE PRESENT CASE, HOWEVER, PRESENTS ENTIRELY DIFFERENT PROBLEMS. 
UNLIKE THE SITUATION CONTEMPLATED IN JOHNSON, THE BURDEN IMPOSED UPON
LAW ENFORCEMENT OFFICIALS TO OBTAIN EVIDENTIARY SUBSTITUTES FOR
INADMISSIBLE "FRUITS" WILL LIKELY BE SUBSTANTIAL.  THE LOWER COURTS,
CONFRONTED WITH THE QUESTION OF THE APPLICATION OF MIRANDA TO FRUITS,
HAVE PROVIDED DIFFERING ANSWERS ON THE ADMISSIBILITY ISSUE.  /3/  THE
POLICE, THEREFORE, COULD NOT REASONABLY HAVE BEEN EXPECTED TO KNOW THAT
SUBSTITUTE EVIDENCE WOULD BE NECESSARY.  AS A RESULT, IN A CASE SUCH AS
THE PRESENT ONE, IN WHICH LAW ENFORCEMENT OFFICIALS HAVE RELIED ON
TRIAL AND APPELLATE COURT DETERMINATIONS THAT FRUITS ARE ADMISSIBLE, A
CONTRARY RULING BY THIS COURT, COMING YEARS AFTER THE COMMISSION OF THE
CRIME, WOULD SEVERELY HANDICAP ANY ATTEMPT TO RETRY THE DEFENDANT.  THE
BURDEN ON LAW ENFORCEMENT OFFICERS, IN THAT CIRCUMSTANCE, WOULD BE
COMPARABLE TO THAT IN JENKINS V. DELAWARE, SUPRA, WHERE WE DECLINED TO
APPLY THE MIRANDA RULES TO POST-MIRANDA RETRIALS OF PERSONS WHOSE
ORIGINAL TRIALS WERE COMMENCED PRIOR TO MIRANDA.  THERE, WE SAID: 

"(CONCERN FOR THE JUSTIFIABLE RELIANCE OF LAW ENFORCEMENT OFFICIALS
UPON PRE-MIRANDA STANDARDS MILITATES AGAINST APPLYING MIRANDA TO
RETRIALS . . . . AS WE STATED IN STOVALL LV. DENNO, SUPRA), '(INQUIRY
WOULD BE HANDICAPPED BY THE UNAVAILABILITY OF WITNESSES AND DIM
MEMORIES.'  388 U.S., AT 300.  THE BURDEN WOULD BE PARTICULARLY ONEROUS
WHERE AN INVESTIGATION WAS CLOSED YEARS PRIOR TO A RETRIAL BECAUSE LAW
ENFORCEMENT OFFICIALS RELIED IN GOOD FAITH UPON A STRONGLY
INCRIMINATING STATEMENT, ADMISSIBLE AT THE FIRST TRIAL, TO PROVIDE THE
CORNERSTONE OF THE PROSECUTION'S CASE."  395 U.S., AT 220 (FOOTNOTE
OMITTED).  MOREOVER, THE ELEMENT OF UNRELIABILITY--A LEGITIMATE CONCERN
IN JOHNSON BECAUSE OF THE INHERENTLY COERCIVE NATURE OF IN-CUSTODY
INTERROGATION--IS OF LESS IMPORTANCE WHEN THE ADMISSIBILITY OF "FRUITS"
IS AT ISSUE.  THERE IS NO REASON TO BELIEVE THAT THE COERCIVE
ATMOSPHERE OF THE STATION HOUSE WILL HAVE ANY EFFECT WHATSOEVER ON THE
TRUSTWORTHINESS OF "FRUITS." 

SINCE EXCLUDING THE FRUITS OF RESPNDENT'S STATEMENTS WOULD NOT
FURTHER THE INTEGRITY OF THE FACTFINDING PROCESS AND WOULD SEVERELY
HANDICAP LAW ENFORCEMENT OFFICIALS IN OBTAINING EVIDENTIARY
SUBSTITUTES, I WOULD CONFINE THE REACH OF JOHNSON V. NEW JERSEY TO
THOSE CASES IN WHICH THE DIRECT STATEMENTS OF AN ACCUSED MADE DURING A
PRE-MIRANDA INTERROGATION WERE INTRODUCED AT HIS POST-MIRANDA TRIAL. 
IF MIRANDA IS APPLICABLE AT ALL TO THE FRUITS OF STATEMENTS MADE
WITHOUT PROPER WARNINGS, I WOULD LIMIT ITS EFFECT TO THOSE CASES IN
WHICH THE FRUITS WERE OBTAINED AS A RESULT OF POST-MIRANDA
INTERROGATIONS.  CF. STOVALL V. DENNO, 388 U.S. 293 (1967); DESIST V.
UNITED STATES, 394 U.S. 244 (1969).  /4/ 

SINCE I AGREE THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE
REVERSED, I CONCUR IN THE JUDGMENT OF THE COURT.  /5/ 

/1/  ALTHOUGH THE PETITION FOR CERTIORARI DID NOT URGE US TO LIMIT
THE EFFECT OF JOHNSON V. NEW JERSEY, THIS ISSUE WAS RAISED IN
PETITIONER'S BRIEF AS WELL AS IN THE AMICUS CURIAE BRIEF OF THE STATE
OF CALIFORNIA, FINED IN SUPPORT OF PETITIONER.  SEE MAPP V. OHIO, 367
U.S. 643, 646 N. 3 (1961); STOVALL V. DENNO, 388 U.S. 293, 294 N. 1
(1967). 

/2/  IN JOHNSON WE COMMENTED--AS WE HAVE ON A NUMBER OF OCCASIONS IN
DECIDING TO APPLY NEW CONSTITUTIONAL RULES OF CRIMINAL PROCEDURE
RETROACTIVELY--THAT "WE DO NOT DISPARAGE A CONSTITUTIONAL GUARANTEE IN
ANY MANNER BY DECLINING TO APPLY IT RETROACTIVELY."  384 U.S., AT 728;
MICHIGAN V. PAYNE, 412 U.S. 47, 55 N. 10 (1973).  THIS IS SO, BECAUSE A
PROSPECTIVE APPLICATION OF NEW RULES WILL OFTEN SERVE IMPORTATNT
PURPOSES OTHER THAN THE CORRECTION OF SERIOUS FLAWS IN THE TRUTH
DETERMINING PROCESS. 

THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION-
GUARANTEED FULL EFFECTUATION BY THE MIRANDA RULES--SERVES A VARIETY OF
SIGNIFICANT PURPOSES NOT RELEVANT TO THE TRUTH-DETERMINING PROCESS. 
SEE TEHAN V. UNITED STATES EX REL. SHOTT, 382 U.S. 406, 415 - 416
(1966).  A NUMBER OF THESE PURPOSES WERE CATATOGUED IN MURPHY V.
WATERFRONT COMM'N, 378 U.S. 52, 55 (1964): 

"THE PRIVILEGE AGAINST SELF-INCRIMINATION 'REGISTERS AN IMPORTANT
ADVANCE IN THE DEVELOPMENT OF OUR LIBERTY--"ONE ON THE GREAT LANDMARKS
IN MAN'S STRUGGLE TO MAKE HIMSELF CIVILIZED."'  ULLMANN V. UNITED
STATES, 350 U.S. 422, 426.  IT REFLECTS MANY OF OUR FUNDAMENTAL VALUES
AND MOST NOBLE ASPIRATIONS:  OUR UNWILLINGNESS TO SUBJECT THOSE
SUSPECTED OF CRIME TO THE CRUEL TRILEMMA OF SELF-ACCUSATION, PERJURY OR
CONTEMPT; OUR PREFERENCE FOR AN ACCUSATORIAL RATHER THAN AN
INQUISITORIAL SYSTEM OF CRIMINAL JUSTICE; OUR FEAR THAT SELF
INCRIMINATING STATEMENTS WILL BE ELICITED BY INHUMANE TREATMENT AND
ABUSES; OUR SENSE OF FAIR PLAY WHICH DICTATES 'A FAIR STATE-INDIVIDUAL
BALANCE BY REQUIRING THE GOVERNMENT TO LEAVE THE INDIVIDUAL ALONE UNTIL
GOOD CAUSE IS SHOWN FOR DISTURBING HIM AND BY REQUIRING THE GOVERNMENT
IN ITS CONTEST WITH THE INDIVIDUAL TO SHOULDER THE ENTIRE LOAD,' 8
WIGMORE, EVIDENCE (MCNAUGHTON REV., 1961), 317; OUR RESPECT FOR THE
INVIOLABILITY OF THE HUMAN PERSONALITY AND OF THE RIGHT OF EACH
INDIVIDUAL 'TO A PRIVATE ENCLAVE WHERE HE MAY LEAD A PRIVATE LIFE,'
UNITED STATES V. GRUNEWALD, 233 F.2D 556, 581 - 582 (FRANK, J.,
DISSENTING), REV'D 353 U.S. 391; OUR DISTRUST OF SELF-DEPRECATORY
STATEMENTS; AND OUR REALIZATION THAT THE PRIVILEGE, WHILE SOMETIMES 'A
SHELTER TO THE GUILTY,' IS OFTEN 'A PROTECTION TO THE INNOCENT.'  QUINN
V. UNITED STATES, 349 U.S. 155, 162."  (FOOTNOTES OMITTED.) 

/3/  COMPARE THE DECISIONS OF THE MICHIGAN COURTS IN THE INSTANT
CASE, 19 MICH. APP. 320, 172 N.W. 2D 712 (1969), AND 385 MICH. 594, 189
N.W.2D 290 (1971), WITH UNITED STATES V. CASSELL, 452 F.2D 533 (CA7
1971), AND PEOPLE V. PEACOCK, 29 APP. DIV. 2D 762, 287 N.Y.S. 2D 199
(1968). 

/4/  THREE APPROACHES HAVE BEEN TAKEN IN DECIDING WHAT CASES SHOULD
BE AFFECTED BY PROSPECTIVE APPLICATION OF NEW CONSTITUTIONAL RULES OF
CRIMINAL PROCEDURE.  IN LINKLETTER V. WALKER, 381 U.S. 618 (1965), THE
COURT HELD THE EXCLUSIONARY RULE OF MAPP V. OHIO, 367 U.S. 643 (1961),
APPLICABLE TO ALL CASES IN WHICH DIRECT REVIEW HAD NOT COME TO AN END
AT THE TIME MAPP WAS ANNOUNCED.  SEE ALSO TEHAN V. UNITED STATES EX
REL. SHOTT, 382 U.S. 406 (1966).  THAT APPROACH, AS WE HAVE OBSERVED,
WAS ABANDONED IN JOHNSON V. NEW JERSEY, WHERE WE STATED THAT THE
MIRANDA RULES WERE APPLICABLE TO ALL TRIALS COMMENCED AFTER THE DATE OF
THAT DECISION.  IN MORE RECENT DECISIONS, WE HAVE REGARDED THE CUTOFF
POINT AS THAT AT WHICH LAW ENFORCEMENT OFFICIALS COULD FIRST BEGIN TO
GUIDE THEIR CONDUCT IN ACCORDANCE WITH OUR NEW RULES.  THUS, IN STOVALL
V. DENNO, 388 U.S. 293 (1967), THE CONFRONTATION RULINGS OF UNITED
STATES V. WADE, 388 U.S. 218 (1967), AND GILBERT V. CALIFORNIA, 388
U.S. 263 (1967), WERE MADE APPLICABLE TO CASES IN WHICH THE
CONFRONTATIONS TOOK PLACE AFTER THE DATE OF THOSE DECISIONS, AND IN
DESIST V. UNITED STATES, 394 U.S. 244 (1969), THE EXCLUSIONARY RULING
OF KATZ V. UNITED STATES, 389 U.S. 347 (1967), WAS MADE APPLICABLE ONLY
TO CASES IN WHICH THE SEARCH AND SEIZURE TOOK PLACE AFTER THE
ANNOUNCEMENT OF KATZ.  SEE ALSO MICHIGAN V. PAYNE, 412 U.S. 47, 57 N.
15 (1973); WILLIAMS V. UNITED STATES, 401 U.S. 646, 656 - 657 (1971). 
BUT CF. FULLER V. ALASKA, 393 U.S. 80, 81 (1968) (HOLDING THAT LEE V.
FLORIDA, 392 U.S. 378 (1968), WHICH RULED EVIDENCE SEIZED IN VIOLATION
OF 605, INADMISSIBLE IN STATE TRIALS, APPLICABLE TO ALL CASES IN WHICH
THE EVIDENCE WAS INTRODUCED AFTER THE DATE OF DECISION IN LEE). 

THE TREND OF OUR DECISIONS SINCE JOHNSON HAS THUS BEEN TOWARD
PLACING INCREASED EMPHASIS UPON THE POINT AT WHICH LAW ENFORCEMENT
PERSONNEL INITIALLY RELIED UPON THE DISCARDED CONSTITUTIONAL STANDARDS,
SEE JENKINS V. DELAWARE, 395 U.S. 213, 218 AND N. 7 (1969).  AS HAS
BEEN NOTED BY AN EMINENT JUDICIAL AUTHORITY, SUCH AN EMPHASIS IS WHOLLY
CONSISTENT WITH THE UNDERLYING RATIONALE FOR PROSPECTIVE APPLICATION OF
NEW RULES, I.E., JUSTIFIED RELIANCE UPON PRIOR JUDICIAL STANDARDS. 
SCHAEFER, THE CONTROL OF "SUNBURSTS":  TECHNIQUES OF PROSPECTIVE
OVERRULING, 42 N.Y.U.L. REV. 631, 645 - 646 (1967). 

/5/  MY BROTHER REHNQUIST ARTUES THAT THIS CONCURRENCE "MARKS A
SIGNIFICANT AND UNSETTLING DEPARTURE FROM THE PAST PRACTIVE OF THE
COURT" IN RESPECT OF RETROACTIVITY.  ANTE, AT 452 N. 26.  HE ARGUES
THAT MIRANDA DID NOT DECIDE THE QUESTION OF THE ADMISSIBILITY OF
FRUITS, AND THEREFORE THAT THERE IS NO "PARENT" DECISION FOR
RETROACTIVE APPLICATION.  BUT THE ASSUMPTION UPON WHICH THE CONCURRENCE
RESTS, NAMELY, THAT MIRANDA REQUIRES THE EXCLUSION OF FRUITS,
NECESSARILY TREATS MIRANDA AS A "PARENT" DECISION.  FOR THE ASSUMPTION
IS THAT EXCLUSION IS NECESSARY TO GIVE FULL EFFECT TO THE PURPOSES AND
POLICIES UNDERLYING THE MIRANDA RULES AND TO ITS HOLDING THAT "UNLESS
AND UNTIL (THE MIRANDA) WARNINGS AND WAIVER ARE DEMONSTRATED BY THE
PROSECUTION AT TRIAL, NO EVIDENCE OBTAINED AS A RESULT OF INTERROGATION
CAN BE USED AGAINST (THE DEFENDANT)."  384 U.S., AT 479.  IT
NECESSARILY FOLLOWS THAT MIRANDA ITSELF IS THE "PARENT" DECISION. 

MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT. 

FOR THE REASONS STATED IN MY DISSENT IN THAT CASE, I CONTINUE TO
THINK THAT MIRANDA V. ARIZONA, 384 U.S. 436 (1966), WAS ILL-CONCEIVED
AND WITHOUT WARRANT IN THE CONSTITUTION.  HOWEVER, THAT MAY BE, THE
MIRANDA OPINION DID NOT DEAL WITH THE ADMISSIBILITY OF EVIDENCE DERIVED
FROM IN-CUSTODY ADMISSIONS OBTAINED WITHOUT THE SPECIFIED WARNINGS, AND
THE MATTER HAS NOT BEEN SETTLED BY SUBSEQUENT CASES. 

IN OROZCO V. TEXAS, 394 U.S. 324 (1969), IT APPEARED THAT
PETITIONER, WHO WAS CONVICTED OF MURDER, HAD BEEN ARRESTED AND
INTERROGATED IN HIS HOME WITHOUT THE BENEFIT OF MIRANDA WARNINGS. 
AMONG OTHER THINGS, PETITIONER ADMITTED HAVING A GUN AND TOLD THE
POLICE WHERE IT WAS HIDDEN IN THE HOUSE.  THE GUN WAS RECOVERED AND
BALLISTIC TESTS, WHICH WERE ADMITTED INTO EVIDENCE ALONG WITH VARIOUS
ORAL ADMISSIONS, SHOWED THAT IT WAS THE GIN INVOLVED IN THE MURDER. 
PETITIONER'S CONVICTION WAS AFFIRMED, THE APPLICABILITY OF MIRANDA
BEING REJECTED BY THE STATE COURTS.  PETITIONER BROUGHT THE CASE HERE,
URGING IN HIS PETITION FOR CERTIORARI, WHICH WAS GRANTED, THAT THE
BALLISTIC EVIDENCE WAS A FRUIT OF AN ILLEGAL INTERROGATION--"THE DIRECT
PRODUCT OF INTERROGATION" WITHOUT INDISPENSABLE CONSTITUTIONAL
SAFEGUARDS.  HIS BRIEF ON THE MERITS SUGGESTED THAT IT WAS ERROR UNDER
MIRANDA TO ADMIT INTO EVIDENCE EITHER HIS ORAL ADMISSIONS OR THE
EVIDENCE OF BALLISTIC TESTS PERFORMED ON THE PISTOL, WHICH WAS REFERRED
TO AS "AN ILLEGALLY SEIZED OBJECT."  THIS COURT REVERSED THE CONVICTION
BUT AFTER REFERRING TO THE BALLISTIC EVIDENCE, WENT ON TO HOLD ONLY
THAT THE ADMISSION INTO EVIDENCE OF OROZCO'S STATEMENTS MADE WITHOUT
BENEFIT OF MIRANDA WARNINGS WAS FATAL ERROR.  ALTHOUGH THE ISSUE WAS
PRESENTED, THE COURT DID NOT EXPRESSLY DEAL WITH THE ADMISSIBILITY OF
THE BALLISTIC TESTS AND GAVE NO INTIMATION THAT THE EVIDENCE WAS TO BE
EXCLUDED AT THE ANTICIPATED RETRIAL. 

MIRANDA HAVING BEEN APPLIED IN THIS COURT ONLY TO THE EXCLUSION OF
THE DEFENDANT'S OWN STATEMENTS, I WOULD NOT EXTEND ITS PROPHYLACTIC
SCOPE TO BAR THE TESTIMONY OF THIRD PERSONS EVEN THOUGH THEY HAVE BEEN
IDENTIFIED BY MEANS OF ADMISSIONS THAT ARE THEMSELVES INADMISSIBLE
UNDER MIRANDA.  THE ARGUABLE BENEFITS FROM EXCLUDING SUCH TESTIMONY BY
WAY OF POSSIBLY DETERRING POLICE CONDUCT THAT MIGHT COMPEL ADMISSIONS
ARE, IN MY VIEW, FAR OUTWEIGHED BY THE ADVANTAGES OF HAVING RELEVANT
AND PROBATIVE TESTIMONY, NOT OBTAINED BY ACTUAL COERCION, AVAILABLE AT
CRIMINAL TRIALS TO AID IN THE PURSUIT OF TRUTH.  THE SAME RESULTS WOULD
NOT NECESSARILY OBTAIN WITH RESPECT TO THE FRUITS OF INVOLUNTARY
CONFESSIONS.  I THEREFORE CONCUR IN THE JUDGMENT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IN THIS CASE THE RESPONDENT, INCARCERATED AS A RESULT OF A
CONVICTION IN A STATE COURT, WAS GRANTED A WRIT OF HABEAS CORPUS BY THE
DISTRICT COURT.  THE BASIS FOR THE WRIT WAS THE INTRODUCTION AT
RESPONDENT'S TRIAL OF TESTIMONY FROM A WITNESS WHOSE IDENTITY WAS
LEARNED SOLELY AS A RESULT OF IN-CUSTODY POLICE INTERROGATION OF THE
RESPONDENT PRECEDED BY WARNINGS WHICH WERE DEFICIENT UNDER THE
STANDARDS ENUNCIATED IN MIRANDA V. ARIZONA, 384 U.S. 436 (1966).  THE
DISTRICT COURT CONCLUDED THAT "THE INTRODUCTION BY THE PROSECUTION IN
ITS CASE IN CHIEF OF TESTIMONY OF A THIRD PERSON WHICH IS ADMITTEDLY
THE FRUIT OF AN ILLEGALLY OBTAINED STATEMENT BY THE (ACCUSED VIOLATES
THE ACCUSED'S) FIFTH AMENDMENT RIGHTS."  352 F. SUPP. 266, 268 (ED
MICH. 1972).  THE COURT OF APPEALS AFFIRMED.  480 F. 2D 927 (CA6
1973). 

        I 

PRIOR TO INTERROGATION, RESPONDENT WAS TOLD OF HIS RIGHT TO THE
PRESENCE OF COUNSEL BUT HE WAS NOT TOLD OF HIS RIGHT TO HAVE AN
ATTORNEY APPOINTED SHOULD HE BE UNABLE TO AFFORD ONE.  RESPONDENT IS AN
INDIGENT WHO HAS BEEN REPRESENTED AT ALL TIMES IN BOTH STATE AND
FEDERAL COURTS BY COURT-APPOINTED COUNSEL.  IN MIRANDA, SUPRA, WE
SAID: 

"THE NEED FOR COUNSEL IN ORDER TO PROTECT THE PRIVILEGE (AGAINST
SELF-INCRIMINATION) EXISTS FOR THE INDIGENT AS WELL AS THE AFFLUENT.  .
. . WHILE AUTHORITIES ARE NOT REQUIRED TO RELIEVE THE ACCUSED OF HIS
POVERTY, THEY HAVE THE OBLIGATION NOT TO TAKE ADVANTAGE OF INDIGENCE IN
THE ADMINISTRATION OF JUSTICE.  . . . 

     "IN ORDER TO FULLY APPRISE A PERSON INTERROGATED OF THE EXTENT

  OF HIS RIGHTS UNDER THIS SYSTEM THEN, IT IS NECESSARY TO WARN HIM

  NOT ONLY THAT HE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY, BUT

  ALSO THAT IF HE IS INDIGENT A LAWYER WILL BE APPOINTED TO

  REPRESENT HIM."  384 U.S., AT 472 - 473. 

I CANNOT AGREE WHEN THE COURT SAYS THAT THE INTERROGATION HERE "DID
NOT ABRIDGE RESPONDENT'S CONSTITUTIONAL PRIVILEGE AGAINST COMPULSORY
SELF-INCRIMINATION, BUT DEPARTED ONLY FROM THE PROPHYLACTIC STANDARDS
LATER LAID DOWN BY THIS COURT IN MIRANDA TO SAFEGUARD THAT PRIVILEGE." 
ANTE, AT 446.  THE COURT IS NOT FREE TO PRESCRIBE PREFERRED MODES OF
INTERROGATION ABSENT A CONSTITUTIONAL BASIS.  WE HELD THE "REQUIREMENT
OF WARNINGS AND WAIVER OF RIGHTS (TO BE) FUNDAMENTAL WITH RESPECT TO
THE FIFTH AMENDMENT PRIVILEGE," ID., AT 476, AND WITHOUT SO HOLDING WE
WOULD HAVE POWERLESS TO REVERSE MIRANDA'S CONVICTION.  WHILE MIRANDA
RECOGNIZED THAT POLICE NEED NOT MOUTH THE PRECISE WORDS CONTAINED IN
THE COURT'S OPINION, SUCH WARNINGS WERE HELD NECESSARY "UNLESS OTHER
FULLY EFFECTIVE MEANS ARE ADOPTED TO NOTIFY THE PERSON" OF HIS RIGHTS. 
ID., AT 479.  THERE IS NO CONTENTION HERE THAT OTHER MEANS WERE
ADOPTED.  THE RESPONDENT'S STATEMENTS WERE THUS OBTAINED "UNDER
CIRCUMSTANCES THAT DID NOT MEET CONSTITUTIONAL STANDARDS FOR PROTECTION
OF THE PRIVILEGE (AGAINST SELF-INCRIMINATION)."  ID., AT 491 (EMPHASIS
ADDED). 

        II 

WITH THE PREMISE THAT RESPONDENT WAS SUBJECTED TO AN
UNCONSTITUTIONAL INTERROGATION, THERE REMAINS THE QUESTION WHETHER NOT
ONLY THE TESTIMONY ELICITED IN THE INTERROGATION BUT ALSO THE FRUITS
THEREOF MUST BE SUPPRESSED.  MR. JUSTICE HOLMES FIRST ARTICULATED THE
"FRUITS" DOCTRINE IN SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S.
385 (1920).  IN THAT CASE THE GOVERNMENT HAD ILLEGALLY SEIZED THE
PETITIONER'S CORPORATE BOOKS AND DOCUMENTS.  THE GOVERNMENT
PHOTOGRAPHED THE ITEMS BEFORE RETURNING THEM AND USED THE PHOTOGRAPHS
AS A BASIS TO SUBPOENA THE PETITIONER TO PRODUCE THE ORIGINALS BEFORE
THE GRAND JUST.  THE PETITIONER REFUSED TO COMPLY AND WAS CITED FOR
CONTEMPT.  IN REVERSING, THE COURT NOTED THAT "(THE ESSENCE OF A
PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE IN A CERTAIN WAY IS
THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE USED BEFORE THE COURT
BUT THAT IT SHALL NOT BE USED AT ALL."  ID., AT 392. 

THE PRINCIPLE RECEIVED MORE RECENT RECOGNITION IN WONG SUN V. UNITED
STATES, 371 U.S. 471 (1963).  THERE ONE TOY HAD MADE STATEMENTS TO
FEDERAL AGENTS AND THE STATEMENTS WERE HELD INADMISSIBLE AGAINST HIM. 
THE STATEMENTS LED THE AGENTS TO ONE YEE AND AT YEE'S HOME THE AGENTS
FOUND NARCOTICS WHICH WERE INTRODUCED AT TRIAL AGAINST TOY.  IN
REVERSING TOY'S CONVICTION THE COURT HALD THAT THE NARCOTICS DISCOVERED
AT YEE'S HOME MUST BE EXCLUDED JUST AS TOY'S STATEMENTS WHICH LED TO
THAT DISCOVERY. 

THE TESTIMONY OF THE WITNESS IN THIS CASE WAS NO LESS A FRUIT OF
UNCONSTITUTIONAL POLICE ACTION THAN THE PHOTOGRAPHS IN SILVERTHORN OR
THE NARCOTICS IN WONG SUN.  THE PETITIONER HAS STIPULATED THAT THE
IDENTITY AND THE WHEREABOUTS OF THE WITNESS AND HIS CONNECTION WITH THE
CASE WERE LEARNED ABOUT ONLY THROUGH THE UNCONSTITUTIONAL INTERROGATION
OF THE RESPONDENT.  HIS TESTIMONY MUST BE EXCLUDED TO COMPLY WITH
MIRANDA'S MANDATE THAT "NO EVIDENCE OBTAINED AS A RESULT OF
INTERROGTION (NOT PRECEDED BY ADEQUATE WARNINGS) CAN BE USED AGAINST"
AN ACCUSED.  384 U.S., AT 479. 

        III 

IN JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966), THE COURT HELD THAT
STATEMENTS OBTAINED IN VIOLATION OF MIRANDA STANDARDS MULST BE EXCLUDED
FROM ALL TRIALS OCCURRING AFTER THE DATE OF THE MIRANDA DECISION.  MR.
JUSTICE BRENNAN SUGGESTS THAT JOHNSON BE LIMITED AND THAT THE FRUITS
DERIVED FROM UNLAWFUL PRE-MIRANDA INTERROGATIONS BE ADMISSIBLE IN
TRIALS SUBSEQUENT TO THE MIRANDA DECISION.  THROUGH RESPONDENT'S TRIAL
OCCURRED SUBSEQUENT TO THE MIRANDA DECISION, HIS INTERROGATION PRECEDED
IT.  I DISAGREE, AS I DISAGREED IN JOHNSON, THAT ANY DEFENDANT CAN BE
DEPRIVED OF THE FULL PROTECTION OF THE FIFTH AMENDMENT, AS THE COURT
HAS CONSTRUED IT IN MIRANDA, BASED UPON AN ARBITRARY REFERENCE TO THE
DATE OF HIS INTERROGATION OR HIS TRIAL. 

IN LINKLETTER V. WALDER, 381 U.S. 618 (1965), THE COURT HELD THE
EXCLUSIONARY RULE OF MAPP V. OHIO, 367 U.S. 643 (1961), INAPPLICABLE TO
CONVICTIONS WHICH HAD BECOME "FINAL" PRIOR TO THE MAPP DECISION.  AS
MR. JUSTICE BLACK, JOINED BY ME, NOTED, THE RESULT WAS THAT 

"LINKLETTER, CONVICTED IN THE STATE COURT BY USE OF
'UNCONSTITUTIONAL EVIDENCE,' IS TODAY DENIED RELIEF BY THE JUDGMENT OF
THIS COURT BECAUSE HIS CONVICTION BECAME 'FINAL' BEFORE MAPP WAS
DECIDED.  LINKLETTER MUST STAY IN JAIL; MISS MAPP, WHOSE OFFENSE WAS
COMMITTED BEFORE LINKLETTER'S, IS FREE.  THIS DIFFERENT TREATMENT OF
MISS MAPP AND LINKLETTER POINTS UP AT ONCE THE ARBITRARY AND
DISCRIMINATORY NATURE OF THE JUDICIAL CONTRIVANCE UTILIZED HERE TO
BREAK THE PROMISE OF MAPP BY KEEPING ALL PEOPLE IN JAIL WHO ARE
UNFORTUNATE ENOUGH TO HAVE HAD THEIR UNCONSTITUTIONAL CONVICTIONS
AFFIRMED BEFORE JUNE 19, 1961."  381 U.S., AT 641 (DISSENTING
OPINION). 

I FIND ANY SUCH REFERENCE TO THE CALENDAR IN DETERMINING THE
BENEFICIARIES OF CONSTITUTIONAL PRONOUNCEMENTS TO BE A GROSSLY
INVIDIOUS DISCRIMINATION.  MIRANDA WAS INTERROGATED ON MARCH 13, 1973;
TUCKER WAS INTERROGATED MORE THAN THREE YEARS LATER IN APRIL 1966.  I
CAN CONCEIVE OF NO PRINCIPLED WAY TO DEPRIVE TUCKER OF THE
CONSTITUTIONAL GUARANTEES AFFORDED MIRANDA.  THE REASON PUT FORWARD FOR
REFUSING TO APPLY THE STRICTURES OF MIRANDA TO INTERROGATIONS WHICH
PRECEDED THE DECISION IS THAT THE PURPOSE OF MIRANDA'S RULES IS THE
DETERRENCE OF UNCONSTITUTIONAL INTERROGATION.  "THE INFERENCE I GATHER
FROM THESE REPEATED STATEMENTS IS THAT THE RULE IS NOT A RIGHT OR
PRIVILEGE ACCORDED TO DEFENDANTS CHARGED WITH CRIME BUT IS A SORT OF
PUNISHMENT AGAINST OFFICERS IN ORDER TO KEEP THEM FROM DEPRIVING PEOPLE
OF THEIR CONSTITUTIONAL RIGHTS.  IN PASSING I WOULD SAY THAT IF THAT IS
THE SOLE PURPOSE, REASON, OBJECT AND EFFECT OF THE RULE, THE COURT'S
ACTION IN ADOPTING IT SOUNDS MORE LIKE LAWMAKING THAN CONSTRUING THE
CONSTITUTION."  381 U.S., AT 649 (BLACK, J., DISSENTING).  MIRANDA'S
PURPOSE WAS NOT PROMULGATION OF JUDICIALLY PREFERRED STANDARDS FOR
POLICE INTERROGATION, A FUNCTION WE ARE QUITE POWERLESS TO PERFORM; THE
DECISION ENUNCIATED "CONSTITUTIONAL STANDARDS FOR PROTECTION OF LTHE
PRIVILEGE" AGAINST SELF-INCRIMINATION.  384 U.S., AT 491.  PEOPLE WHO
ARE IN JAIL BECAUSE OF A STATE'S USE OF UNCONSTITUTIONALLY DERIVED
EVIDENCE ARE ENTITLED TO A NEW TRIAL, WITH THE SAFEGUARDS THE
CONSTITUTION PROVIDES, WITHOUT REGARD TO WHEN THE CONSTITUTIONAL
VIOLATION OCCURRED, WHEN THE TRIAL OCCURRED, OR WHEN THE CONVICTION
BECAME "FINAL." 

AS MR. JUSTICE BLACK SAID IN LINKLETTER:  "IT CERTAINLY OFFENDS MY
SENSE OF JUSTICE TO SAY THAT A STATE HOLDING IN JAIL PEOPLE WHO WERE
CONVICTED BY UNCONSTITUTIONAL METHODS HAS A VESTED INTEREST IN KEEPING
THEM THERE THAT OUTWEIGHS THE RIGHT OF PERSONS ADJUDGED GUILTY OF CRIME
TO CHALLENGE THEIR UNCONSTITUTIONAL CONVICTIONS AT ANY TIME."  381
U.S., AT 653. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

L. BROOKS PATTERSON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WAS ROBERT C. WILLIAMS. 

KENNETH M. MOGILL, BY APPOINTMENT OF THE COURT, 415 U.S. 909, ARGUED
THE CAUSE PRO HAC VICE AND FILED A BRIEF FOR RESPONDENT. 

EDWARD R. KORMAN ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
BORK, ASSISTANT ATTORNEY GENERAL PETERSEN, DEPUTY SOLICITOR GENERAL
FREY, AND JEROME M. FEIT. 

ROMAN S. GRIBBS, ARGUED THE CAUSE AND FILED A BRIEF FOR THE DETROIT
BAR ASSN. AS AMICUS CURIAE URGING AFFIRMANCE.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL, JACK R. WINKLER, CHIEF ASSISTANT ATTORNEY
GENERAL, AND DORIS H. MAIER, ASSISTANT ATTORNEY GENERAL, FOR THE STATE
OF CALIFORNIA, AND BY FRANK G. CARRINGTON, JR., FRED E. INBAU, WILLIAM
K. LAMBIE, WAYNE W. SCHMIDT, GLEN MURPHY, PAUL KELLER, AND JAMES B.
ZAGEL FOR AMERICANS FOR EFFECTIVE LAW ENFORCEMENT ET AL. 

THE CIVIL LIBERTIES COMMITTEE, STATE BAR OF MICHIGAN, FILED A BRIEF
AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :










CORNING GLASS WORKS V. BRENNAN, 417 U.S. 188 


       CORNING GLASS WORKS V. BRENNAN, SECRETARY OF LABOR

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 73 - 29.  ARGUED MARCH 25, 1974--DECIDED JUNE 3, 1974;

/1/ NO. 73 - 29, 474 F.2D 226, AFFIRMED; NO. 73 - 695,

     480 F.2D 1254, REVERSED AND REMANDED. 

/1/  TOGETHER WITH NO. 73-695, BRENNAN, SECRETARY OF LABOR V.
CORNING GLASS WORKS, ON CERTIORARI TO THE COURT OF APPEALS FOR THE
THIRD CIRCUIT. 


    MALE EMPLOYEES AT THE CORNING GLASS WORKS (CORNING) PREVIOUSLY

  PERFORMED NIGHT SHIFT INSPECTION AND WERE PAID MORE THAN FEMALES

  WHO PERFORMED THE DAY SHIFT INSPECTION.  A PLANTWIDE SHIFT

  DIFFERENTIAL THAT SUBSEQUENTLY CAME WITH UNIONIZATION WAS

  SUPERIMPOSED ON THE EXISTING BASE-WAGE DIFFERENCE BETWEEN MALE

  NIGHT INSPECTORS AND FEMALE DAY INSPECTORS.  THEREAFTER,

  BEGINNING JUNE 1, 1966, CORNING BEGAN TO OPEN UP NIGHT SHIFT JOBS

  FOR WOMEN, WHO ON AN EQUAL SENIORITY BASIS WITH MEN WERE ABLE TO

  BID FOR THE HIGHER PAID NIGHT INSPECTION JOBS AS VACANCIES

  OCCURRED.  ON JANUARY 20, 1969, A NEW "JOB EVALUATION" SYSTEM FOR

  SETTING WAGE RATES TOOK EFFECT, UNDER WHICH ALL SUBSEQUENTLY

  HIRED INSPECTORS WERE TO RECEIVE THE SAME BASE WAGE (WHICH WAS

  HIGHER THAN THE PREVIOUS NIGHT SHIFT RATE) REGARDLESS OF SEX OR

  SHIFT.  EMPLOYEES HIRED BEFORE THAT DATE, HOWEVER, WHEN WORKING

  NIGHT SHIFT WERE TO CONTINUE TO RECEIVE A HIGHER ("RED CIRCLE")

  RATE, THUS PERPETUATING THE PREVIOUS DIFFERENTIAL IN BASE PAY

  BETWEEN DAY AND NIGHT INSPECTORS.  THE SECRETARY OF LABOR BROUGHT

  THESE ACTIONS FOR BACKPAY AND INJUNCTIVE RELIEF AGAINST CORNING,

  CLAIMING THAT VIOLATIONS OF THE EQUAL PAY ACT OF 1963 HAD

  OCCURRED AT ITS CORNING, N.Y. (NO. 73 - 29), AND WELLSBORO, PA.

  (NO. 73 - 695), PLANTS.  IN NO. 73 - 29, THE DISTRICT COURT

  GRANTED RELIEF, AND THE COURT OF APPEALS FOR THE SECOND CIRCUIT

  AFFIRMED, CONCLUDING THAT CORNING'S PRACTICE VIOLATED THE ACT,

  WHILE THE DISTRICT COURT IN NO. 73 - 695 HELD THAT THE ACT HAD

  NOT BEEN VIOLATED AND THE COURT OF APPEALS FOR THE THIRD CIRCUIT

  AFFIRMED.  IN ORDER TO ESTABLISH A VIOLATION OF THE ACT, IT MUST

  BE SHOWN THAT AN EMPLOYER PAYS DIFFERENT WAGES TO EMPLOYEES OF

OPPOSITE SEXES "FOR EQUAL WORK ON JOBS THE PERFORMANCE OF WHICH

  REQUIRES EQUAL SKILL, EFFORT, AND RESPONSIBILITY, AND WHICH ARE

  PERFORMED UNDER SIMILAR WORKING CONDITIONS," EXCEPT WHERE THE

  DIFFERENCE IN PAYMENT IS MADE PURSUANT TO A SENIORITY OR MERIT

  SYSTEM OR ONE MEASURING EARNINGS BY QUANTITY OR QUALITY OF

  PRODUCTION, OR WHERE THE DIFFERENTIAL IS "BASED ON ANY OTHER

  FACTOR OTHER THAN SEX."  HELD:

     1.  CORNING VIOLATED THE ACT DURING THE PERIOD FROM ITS

  EFFECTIVE DATE TO JUNE 1966.  PP. 195 - 205. 

     (A) THE STATUTORY TERM "WORKING CONDITIONS," AS IS CLEAR FROM

  THE ACT'S LEGISLATIVE HISTORY, ENCOMPASSES ONLY PHYSICAL

  SURROUNDINGS AND HAZARDS AND NOT THE TIME OF DAY WORKED.  PP. 197

  - 204. 

     (B) THE RECORD AMPLY SUPPORTS THE CONCLUSION OF THE DISTRICT

  COURT IN NO. 73 - 29 THAT CORNING HAD NOT SUSTAINED ITS BURDEN OF

  PROOF THAT THE HIGHER BASE WAGE FOR PRE-JUNE 1966 ALL-MALE NIGHT

  INSPECTION WORK WAS IN FACT INTENDED TO SERVE AS ADDED

  COMPENSATION FOR NIGHT WORK, AND THUS WAS BASED ON A "FACTOR

  OTHER THAN SEX."  SUBSTANTIAL EVIDENCE SHOWED THAT THE

  DIFFERENTIAL AROSE SIMPLY BECAUSE MEN WOULD NOT WORK AT THE LOW

  RATES PAID WOMEN INSPECTORS AND REFLECTED A JOB MARKET IN WHICH

  CORNING COULD PAY WOMEN LESS THAN MEN FOR THE SAME WORK.  PP. 204

  - 205. 

     2.  CORNING DID NOT CURE ITS VIOLATION IN JUNE 1966 BY

  PERMITTING WOMEN TO WORK AS NIGHT SHIFT INSPECTORS, SINCE THE

  VIOLATION COULD NOT HAVE BEEN CURED EXCEPT BY EQUALIZING THE BASE

  WAGES OF FEMALE DAY INSPECTORS WITH THE HIGHER RATES PAID THE

  NIGHT INSPECTORS PP. 205 - 208. 

     3.  THE VIOLATION WAS NOT CURED IN 1969, WHEN CORNING
EQUALIZED

DAY AND NIGHT INSPECTOR WAGE RATES, SINCE THE "RED CIRCLE" RATE

  PERPETUATED THE DISCRIMINATION.  PP. 208 - 210. 

 MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, WHITE, AND POWELL, JJ., JOINED.  BURGER, C.J.,

  AND BLACKMUN AND REHNQUIST, JJ., FILED A DISSENTING STATEMENT,

  POST, P. 210.  STEWART, J., TOOK NO PART IN THE CONSIDERATION OR

  DECISION OF THE CASES. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARISE UNDER THE EQUAL PAY ACT OF 1963, 77 STAT. 56, 3,
29 U.S.C. 206 (D)(1), /1/  WHICH ADDED TO 6 OF THE FAIR LABOR STANDARDS
ACT OF 1938 THE PRINCIPLE OF EQUAL PAY FOR EQUAL WORK REGARDLESS OF
SEX.  THE PRINCIPAL QUESTION POSED IS WHETHER CORNING GLASS WORKS
VIOLATED THE ACT BY PAYING A HIGHER BASE WAGE TO MALE NIGHT SHIFT
INSPECTORS THAN IT PAID TO FEMALE INSPECTORS PERFORMING THE SAME TASKS
ON THE DAY SHIFT, WHERE THE HIGHER WAGE WAS PAID IN ADDITION TO A
SEPARATE NIGHT SHIFT DIFFERENTIAL PAID TO ALL EMPLOYEES FOR NIGHT
WORK.  IN NO. 73 - 29, THE COURT OF APPEALS FOR THE SECOND CIRCUIT, IN
A CASE INVOLVING SEVERAL CORNING PLANTS IN CORNING, NEW YORK, HELD THAT
THIS PRACTICE VIOLATED THE ACT.  474 F.2D 226 (1973).  IN NO. 73 - 695,
THE COURT OF APPEALS FOR THE THIRD CIRCUIT, IN A CASE INVOLVING A
CORNING PLANT IN WELLSBORO, PENNSYLVANIA, REACHED THE OPPOSITE
CONCLUSION.  480 F.2D 1254 (1973).  WE GRANTED CERTIORARI AND
CONSOLIDATED THE CASES TO RESOLVE THIS UNUSUALLY DIRECT CONFLICT
BETWEEN TWO CIRCUITS.  414 U.S. 1110 (1973).  FINDING OURSELVES IN
SUBSTANTIAL AGREEMENT WITH THE ANALYSIS OF THE SECOND CIRCUIT, WE
AFFIRM IN NO. 73 - 29 AND REVERSE IN NO. 73 - 695. 

        I 

PRIOR TO 1925, CORNING OPERATED ITS PLANTS IN WELLSBORO AND CORNING
ONLY DURING THE DAY, AND ALL INSPECTION WORK WAS PERFORMED BY WOMEN. 
BETWEEN 1925 AND 1930, THE COMPANY BEGAN TO INTRODUCE AUTOMATIC
PRODUCTION EQUIPMENT WHICH MADE IT DESIRABLE TO INSTITUTE A NIGHT
SHIFT.  DURING THIS PERIOD, HOWEVER, BOTH NEW YORK AND PENNSYLVANIA LAW
PROHIBITED WOMEN FROM WORKING AT NIGHT.  /2/  AS A RESULT, IN ORDER TO
FILL INSPECTOR POSITIONS ON THE NEW NIGHT SHIFT, THE COMPANY HAD TO
RECRUIT MALE EMPLOYEES FROM AMONG ITS MALE DAYWORKERS.  THE MALE
EMPLOYEES SO TRANSFERRED DEMANDED AND RECEIVED WAGES SUBSTANTIALLY
HIGHER THAN THOSE PAID TO WOMEN INSPECTORS ENGAGED ON THE TWO DAY
SHIFTS.  /3/  DURING THIS SAME PERIOD, HOWEVER, NO PLANT-WIDE SHIFT
DIFFERENTIAL EXISTED AND MALE EMPLOYEES WORKING AT NIGHT, OTHER THAN
INSPECTORS, RECEIVED THE SAME WAGES AS THEIR DAY SHIFT COUNTERPARTS. 
THUS A SITUATION DEVELOPED WHERE THE NIGHT INSPECTORS WERE ALL MALE,
/4/  THE DAY INSPECTORS ALL FEMALE, AND THE MALE INSPECTORS RECEIVED
SIGNIFICANTLY HIGHER WAGES. 

IN 1944, CORNING PLANTS AT BOTH LOCATIONS WERE ORGANIZED BY A LABOR
UNION AND A COLLECTIVE-BARGAINING AGREEMENT WAS NEGOTIATED FOR ALL
PRODUCTION AND MAINTENANCE EMPLOYEES.  THIS AGREEMENT FOR THE FIRST
TIME ESTABLISHED A PLANT-WIDE SHIFT DIFFERENTIAL, /5/  BUT THIS CHANGE
DID NOT ELIMINATE THE HIGHER BASE WAGE PAID TO MALE NIGHT INSPECTORS. 
RATHER, THE SHIFT DIFFERENTIAL WAGES BETWEEN MALE NIGHT INSPECTORS AND
FEMALE DAY INSPECTORS. 

PRIOR TO JUNE 11, 1964, THE EFFECTIVE DATE OF THE EQUAL PAY ACT, /6/
THE LAW IN BOTH PENNSYLVANIA AND NEW YORK WAS AMENDED TO PERMIT WOMEN
TO WORK AT NIGHT.  /7/  IT WAS NOT UNTIL SOME TIME AFTER THE EFFECTIVE
DATE OF THE ACT, HOWEVER, THAT CORNING INITIATED EFFORTS TO ELIMINATE
THE DIFFERENTIAL RATES FOR MALE AND FEMALE INSPECTORS.  BEGINNING IN
JUNE 1966, CORNING STARTED TO OPEN UP JOBS ON THE NIGHT SHIFT TO
WOMEN.  PREVIOUSLY SEPARATE MALE AND FEMALE SENIORITY LISTS WERE
CONSOLIDATED AND WOMEN BECAME ELIGIBLE TO EXERCISE THEIR SENIORITY, ON
THE SAME BASIS AS MEN, TO BID FOR THE HIGHER PAID NIGHT INSPECTION JOBS
AS VACANCIES OCCURRED. 

ON JANUARY 20, 1969, A NEW COLLECTIVE-BARGAINING AGREEMENT WENT INTO
EFFECT, ESTABLISHING A NEW "JOB EVALUATION" SYSTEM FOR SETTING WAGE
RATES.  THE NEW AGREEMENT ABOLISHED FOR THE FUTURE THE SEPARATE BASE
WAGES FOR DAY AND NIGHT SHIFT INSPECTORS AND IMPOSED A UNIFORM BASE
WAGE FOR INSPECTORS EXCEEDING THE WAGE RATE FOR THE NIGHT SHIFT
PREVIOUSLY IN EFFECT.  ALL INSPECTORS HIRED AFTER JANUARY 20, 1969,
WERE TO RECEIVE THE SAME BASE WAGE, WHATEVER THEIR SEX OR SHIFT.  THE
COLLECTIVE-BARGAINING AGREEMENT FURTHER PROVIDED, HOWEVER, FOR A HIGHER
"RED CIRCLE" RATE FOR EMPLOYEES HIRED PRIOR TO JANUARY 20, 1969, WHEN
WORKING AS INSPECTORS ON THE NIGHT SHIFT.  THIS "RED CIRCLE" RATE
SERVED ESSENTIALLY TO PERPETUATE THE DIFFERENTIAL IN BASE WAGES BETWEEN
DAY AND NIGHT INSPECTORS. 

THE SECRETARY OF LABOR BROUGHT THESE CASES TO ENJOIN CORNING FROM
VIOLATING THE EQUAL PAY ACT /8/  AND TO COLLECT BACK WAGES ALLEGEDLY
DUE FEMALE EMPLOYEES BECAUSE OF PAST VIOLATIONS.  THREE DISTINCT
QUESTIONS ARE PRESENTED:  (1) DID CORNING EVER VIOLATE THE EQUAL PAY
ACT BY PAYING MALE NIGHT SHIFT INSPECTORS MORE THAN FEMALE DAY SHIFT
INSPECTORS?  (2) IF SO, DID CORNING CURE ITS VIOLATION OF THE ACT IN
1966 BY PERMITTING WOMEN TO WORK AS NIGHT SHIFT INSPECTORS?  (3)
FINALLY, IF THE VIOLATION WAS NOT REMEDIED IN 1966, DID CORNING CURE
ITS VIOLATION IN 1969 BY EQUALIZING DAY AND NIGHT INSPECTOR WAGE RATES
BUT ESTABLISHING HIGHER "RED CIRCLE"  RATES FOR EXISTING EMPLOYEES
WORKING ON THE NIGHT SHIFT? 

        II 

CONGRESS' PURPOSE IN ENACTING THE EQUAL PAY ACT WAS TO REMEDY WHAT
WAS PERCEIVED TO BE A SERIOUS AND ENDEMIC PROBLEM OF EMPLOYMENT
DISCRIMINATION IN PRIVATE INDUSTRY--THE FACT THAT THE WAGE STRUCTURE OF
"MANY SEGMENTS OF AMERICAN INDUSTRY HAS BEEN BASED ON AN ANCIENT BUT
OUTMODED BELIEF THAT A MAN, BECAUSE OF HIS ROLE IN SOCIETY, SHOULD BE
PAID MORE THAN A WOMAN EVEN THOUGH HIS DUTIES ARE THE SAME."  S. REP.
NO. 176, 88TH CONG., 1ST SESS., 1 (1963).  THE SOLUTION ADOPTED WAS
QUITE SIMPLE IN PRINCIPLE:  TO REQUIRE THAT "EQUAL WORK WILL BE
REWARDED BY EQUAL WAGES."  IBID. 

THE ACT'S BASIC STRUCTURE AND OPERATION ARE SIMILARLY
STRAIGHTFORWARD.  IN ORDER TO MAKE OUT A CASE UNDER THE ACT, THE
SECRETARY MUST SHOW THAT AN EMPLOYER PAYS DIFFERENT WAGES TO EMPLOYEES
OF OPPOSITE SEXES "FOR EQUAL WORK ON JOBS THE PERFORMANCE OF WHICH
REQUIRES EQUAL SKILL, EFFORT, AND RESPONSIBILITY, AND WHICH ARE
PERFORMED UNDER SIMILAR WORKING CONDITIONS."  ALTHOUGH THE ACT IS
SILENT ON THIS POINT, ITS LEGISLATIVE HISTORY MAKES PLAIN THAT THE
SECRETARY HAS THE BURDEN OF PROOF ON THIS ISSUE, /9/  AS BOTH OF THE
COURTS BELOW RECOGNIZED.  /10/ 

THE ACT ALSO ESTABLISHES FOUR EXCEPTIONS--THREE SPECIFIC AND ONE A
GENERAL CATCHALL PROVISION--WHERE DIFFERENT PAYMENT TO EMPLOYEES OF
OPPOSITE SEXES "IS MADE PURSUANT TO (I) A SENIORITY SYSTEM; (II) A
MERIT SYSTEM; (III) A SYSTEM WHICH MEASURES EARNINGS BY QUANTITY OR
QUALITY OF PRODUCTION; OR (IV) A DIFFERENTIAL BASED ON ANY OTHER FACTOR
OTHER THAN SEX."  AGAIN, WHILE THE ACT IS SILENT ON THIS QUESTION, ITS
STRUCTURE AND HISTORY ALSO SUGGEST THAT ONCE THE SECRETARY HAS CARRIED
HIS BURDEN OF SHOWING THAT THE EMPLOYER PAYS WORKERS OF ONE SEX MORE
THAN WORKERS OF THE OPPOSITE SEX FOR EQUAL WORK, THE BURDEN SHIFTS TO
THE EMPLOYER TO SHOW THAT THE DIFFERENTIAL IS JUSTIFIED UNDER ONE OF
THE ACT'S FOUR EXCEPTIONS.  ALL OF THE MANY LOWER COURTS THAT HAVE
CONSIDERED THIS QUESTION HAVE SO HELD, /11/  AND THIS VIEW IS
CONSISTENT WITH THE GENERAL RULE THAT THE APPLICATION OF AN EXEMPTION
UNDER THE FAIR LABOR STANDARDS ACT IS A MATTER OF AFFIRMATIVE DEFENSE
ON WHICH THE EMPLOYER HAS THE BURDEN OF PROOF.  /12/ 

THE CONTENTIONS OF THE PARTIES IN THIS CASE REFLECT THE ACT'S
UNDERLYING FRAMEWORK.  CORNING ARGUES THAT THE SECRETARY HAS FAILED TO
PROVE THAT CORNING EVER VIOLATED THE ACT BECAUSE DAY SHIFT WORK IS NOT
"PERFORMED UNDER SIMILAR WORKING CONDITIONS" AS NIGHT SHIFT WORK.  THE
SECRETARY MAINTAINS THAT DAY SHIFT AND NIGHT SHIFT WORK ARE PERFORMED
UNDER "SIMILAR WORKING CONDITIONS"  WITHIN THE MEANING OF THE ACT. 
/13/  ALTHOUGH THE SECRETARY RECOGNIZES THAT HIGHER WAGES MAY BE PAID
FOR NIGHT SHIFT WORK, THE SECRETARY CONTENDS THAT SUCH A SHIFT
DIFFERENTIAL WOULD BE BASED UPON A "FACTOR OTHER THAN SEX"  WITHIN THE
CATCHALL EXCEPTION TO THE ACT AND THAT CORNING HAS FAILED TO CARRY ITS
BURDEN OF PROOF THAT ITS HIGHER BASE WAGE FOR MALE NIGHT INSPECTORS WAS
IN FACT BASED ON ANY FACTOR OTHER THAN SEX. 

THE COURTS BELOW RELIED IN PART ON CONFLICTING STATEMENTS IN THE
LEGISLATIVE HISTORY HAVING SOME BEARING ON THIS QUESTION OF STATUTORY
CONSTRUCTION.  THE THIRD CIRCUIT FOUND PARTICULARLY SIGNIFICANT A
STATEMENT OF CONGRESSMAN GOODELL, A SPONSOR OF THE EQUAL PAY BILL, WHO,
IN THE COURSE OF EXPLAINING THE BILL ON THE FLOOR OF THE HOUSE,
COMMENTED THAT "STANDING AS OPPOSED TO SITTING, PLEASANTNESS OR
UNPLEASANTNESS OF SURROUNDINGS, PERIODIC REST PERIODS, HOURS OF WORK,
DIFFERENCE IN SHIFT, ALL WOULD LOGICALLY FALL WITHIN THE WORKING
CONDITION FACTOR."  109 CONG. REC. 9209 (1963).  THE SECOND CIRCUIT, IN
CONTRAST, RELIED ON A STATEMENT FROM THE HOUSE COMMITTEE REPORT WHICH,
IN DESCRIBING THE BROAD GENERAL EXCEPTION FOR DIFFERENTIALS "BASED ON
ANY OTHER FACTOR OTHER THAN SEX," STATED:  "THUS, AMONG OTHER THINGS,
SHIFT DIFFERENTIALS . . . WOULD ALSO BE EXCLUDED . . . ."  H. R. REP.
NO. 309, 88TH CONG., 1ST SESS., 3 (1963). 

WE AGREE WITH JUDGE FRIENDLY, HOWEVER, THAT IN THIS CASE A BETTER
UNDERSTANDING OF THE PHRASE "PERFORMED UNDER SIMILAR WORKING
CONDITIONS" CAN BE OBTAINED FROM A CONSIDERATION OF THE WAY IN WHICH
CONGRESS ARRIVED AT THE STATUTORY LANGUAGE THAN FROM TRYING TO
RECONCILE OR ESTABLISH PREFERENCES BETWEEN THE CONFLICTING
INTERPRETATIONS OF THE ACT BY INDIVIDUAL LEGISLATORS OR THE COMMITTEE
REPORTS.  AS MR. JUSTICE FRANKFURTER REMARKED IN AN EARLIER CASE
INVOLVING INTERPRETATION OF THE FAIR LABOR STANDARDS ACT, "REGARD FOR
THE SPECIFIC HISTORY OF THE LEGISLATIVE PROCESS THAT CULMINATED IN THE
ACT NOW BEFORE US AFFORDS MORE SOLID GROUND FOR GIVING IT APPROPRIATE
MEANING."  UNITED STATES V. UNIVERSAL C.I.T. CREDIT CORP., 344 U.S.
218, 222 (1952). 

THE MOST NOTABLE FEATURE OF THE HISTORY OF THE EQUAL PAY ACT IS THAT
CONGRESS RECOGNIZED EARLY IN THE LEGISLATIVE PROCESS THAT THE CONCEPT
OF EQUAL PAY FOR EQUAL WORK WAS MORE READILY STATED IN PRINCIPLE THAN
REDUCED TO STATUTORY LANGUAGE WHICH WOULD BE MEANINGFUL TO EMPLOYERS
AND WORKABLE ACROSS THE BROAD RANGE OF INDUSTRIES COVERED BY THE ACT. 
AS ORIGINALLY INTRODUCED, THE EQUAL PAY BILLS REQUIRED EQUAL PAY FOR
"EQUAL WORK ON JOBS THE PERFORMANCE OF WHICH REQUIRES EQUAL SKILLS." 
THERE WERE ONLY TWO EXCEPTIONS--FOR DIFFERENTIALS "MADE PURSUANT TO A
SENIORITY OR MERIT INCREASE SYSTEM WHICH DOES NOT DISCRIMINATE ON THE
BASIS OF SEX . . . ."  /14/ 

IN BOTH THE HOUSE AND SENATE COMMITTEE HEARINGS, WITNESSES WERE HIGHLY
CRITICAL OF THE ACT'S DEFINITION OF EQUAL WORK AND OF ITS EXEMPTIONS. 
MANY NOTED THAT MOST OF AMERICAN INDUSTRY USED FORMAL, SYSTEMATIC JOB
EVALUATION PLANS TO ESTABLISH EQUITABLE WAGE STRUCTURES IN THEIR
PLANTS.  /15/  SUCH SYSTEMS, AS EXPLAINED COINCIDENTALLY BY A
REPRESENTATIVE OF CORNING GLASS WORKS WHO TESTIFIED AT BOTH HEARINGS,
TOOK INTO CONSIDERATION FOUR SEPARATE FACTORS IN DETERMINING JOB VALUE-
SKILL, EFFORT, RESPONSIBILITY AND WORKING CONDITIONS--AND EACH OF THESE
FOUR COMPONENTS WAS FURTHER SYSTEMATICALLY DIVIDED INTO VARIOUS
SUBCOMPONENTS.  /16/  UNDER A JOB EVALUATION PLAN, POINT VALUES ARE
ASSIGNED TO EACH OF THE SUBCOMPONENTS OF A GIVEN JOB, RESULTING IN A
TOTAL POINT FIGURE REPRESENTING A RELATIVELY OBJECTIVE MEASURE OF THE
JOB'S VALUE. 

IN COMPARISON TO THE RATHER COMPLEX JOB EVALUATION PLANS USED BY
INDISTRY, THE DEFINITION OF EQUAL WORK USED IN THE FIRST DRAFTS OF THE
EQUAL PAY BILL WAS CRITICIZED AS UNDULY VAGUE AND INCOMPLETE.  INDUSTRY
REPRESENTATIVES FEARED THAT AS A RESULT OF THE ACT'S DEFINITION OF
EQUAL WORK, THE SECRETARY OF LABOR WOULD BE CAST IN THE POSITION OF
SECOND GUESSING THE VALIDITY OF A COMPANY'S JOB EVALUATION SYSTEM. 
THEY REPEATEDLY URGED THAT THE BILL BE AMENDED TO INCLUDE AN EXCEPTION
FOR JOB CLASSIFICATION SYSTEMS, OR OTHERWISE TO INCORPORATE THE
LANGUAGE OF JOB EVALUATION INTO THE BILL.  /17/  THUS CORNING'S OWN
REPRESENTATIVE TESTIFIED: 

     "JOB EVALUATION IS AN ACCEPTED AND TESTED METHOD OF ATTAINING
EQUITY IN WAGE RELATIONSHIP. 

     "A GREAT PART OF INDUSTRY IS COMMITTED TO JOB EVALUATION BY

  PAST PRACTICE AND BY CONTRACTUAL AGREEMENT AS THE BASIS FOR WAGE

  ADMINISTRATION. 

      "'SKILL' ALONE, AS A CRITERION, FAILS TO RECOGNIZE OTHER

  ASPECTS OF THE JOB SITUATION THAT AFFECT JOB WORTH. 

     "WE SINCERELY HOPE THAT THIS COMMITTEE IN PASSING LEGISLATION

  TO ELIMINATE WAGE DIFFERENCES BASED ON SEX ALONE, WILL RECOGNIZE

  IN ITS LANGUAGE THE GENERAL ROLE OF JOB EVALUATION IN

  ESTABLISHING EQUITABLE RATE RELATIONSHIP."  /18/ 

WE THINK IT PLAIN THAT IN AMENDING THE ACT'S DEFINITION OF EQUAL
WORK TO ITS PRESENT FORM, THE CONGRESS ACTED IN DIRECT RESPONSE TO
THESE PLEAS.  SPOKESMEN FOR THE AMENDED BILL STATED, FOR EXAMPLE,
DURING THE HOUSE DEBATES: 

"THE CONCEPT OF EQUAL PAY FOR JOBS DEMANDING EQUAL SKILL HAS BEEN
EXPANDED TO REQUIRE ALSO EQUAL EFFORT, RESPONSIBILITY, AND SIMILAR
WORKING CONDITIONS.  THESE FACTORS ARE THE CORE OF ALL JOB
CLASSIFICATION SYSTEMS.  THEY FORM A LEGITIMATE BASIS FOR DIFFERENTIALS
IN PAY."  /19/ INDEED, THE MOST TELLING EVIDENCE OF CONGRESSIONAL
INTENT IS THE FACT THAT THE ACT'S AMENDED DEFINITION OF EQUAL WORK
INCORPORATED THE SPECIFIC LANGUAGE OF THE JOB EVALUATION PLAN DESCRIBED
AT THE HEARINGS BY CORNING'S OWN REPRESENTATIVE--THAT IS, THE CONCEPTS
OF "SKILL," "EFFORT,"  "RESPONSIBILITY,"  AND "WORKING CONDITIONS." 

CONGRESS' INTENT, AS MANIFESTED IN THIS HISTORY, WAS TO USE THESE
TERMS TO INCORPORATE INTO THE NEW FEDERAL ACT THE WELL-DEFINED AND WELL
ACCEPTED PRINCIPLES OF JOB EVALUATION SO AS TO ENSURE THE WAGE
DIFFERENTIALS BASED UPON BONA FIDE JOB EVALUATION PLANS WOULD BE
OUTSIDE THE PURVIEW OF THE ACT.  THE HOUSE REPORT EMPHASIZED: 

     "THIS LANGUAGE RECOGNIZES THAT THERE ARE MANY FACTORS WHICH
MAY

  BE USED TO MEASURE THE RELATIONSHIPS BETWEEN JOBS AND WHICH

  ESTABLISH A VALID BASIS FOR A DIFFERENCE IN PAY.  THESE FACTORS

  WILL BE FOUND IN A MAJORITY OF THE JOB CLASSIFICATION SYSTEMS. 

  THUS, IT IS ANTICIPATED THAT A BONA FIDE JOB CLASSIFICATION

  PROGRAM THAT DOES NOT DISCRIMINATE ON THE BASIS OF SEX WILL SERVE

  AS A VALID DEFENSE TO A CHARGE OF DISCRIMINATION."  H. R. REP.

  NO. 309, SUPRA, AT 3. 

IT IS IN THIS LIGHT THAT THE PHRASE "WORKING CONDITIONS" MUST BE
UNDERSTOOD, FOR WHERE CONGRESS HAS USED TECHNICAL WORDS OR TERMS OF
ART, "IT (IS) PROPER TO EXPLAIN THEM BY REFERENCE TO THE ART OR SCIENCE
TO WHICH THEY (ARE) APPROPRIATE."  GREENLEAF V. GOODRICH, 101 U.S. 278,
284 (1880).  SEE ALSO NLRB V. HIGHLAND PARK MFG. CO., 341 U.S. 322, 326
(1951) (FRANKFURTER, J., DISSENTING).  THIS PRINCIPLE IS PARTICULARLY
SALUTARY WHERE, AS HERE, THE LEGISLATIVE HISTORY REVEALS THAT CONGRESS
INCORPORATED WORDS HAVING A SPECIAL MEANING WITHIN THE FIELD REGULATED
BY THE STATUTE SO AS TO OVERCOME OBJECTIONS BY INDUSTRY REPRESENTATIVES
THAT STATUTORY DEFINITIONS WERE VAGUE AND INCOMPLETE. 

WHILE A LAYMAN MIGHT WELL ASSUME THAT TIME OF DAY WORKED REFLECTS
ONE ASPECT OF A JOB'S "WORKING CONDITIONS," THE TERM HAS A DIFFERENT
AND MUCH MORE SPECIFIC MEANING IN THE LANGUAGE OF INDUSTRIAL
RELATIONS.  AS CORNING'S OWN REPRESENTATIVE TESTIFIED AT THE HEARINGS,
THE ELEMENT OF WORKING CONDITIONS ENCOMPASSES TWO SUBFACTORS:
"SURROUNDINGS" AND "HAZARDS".  /20/  "SURROUNDINGS" MEASURES THE
ELEMENTS, SUCH AS TOXIC CHEMICALS OR FUMES, REGULARLY ENCOUNTERED BY A
WORKER, THEIR INTENSITY, AND THEIR FREQUENCY.  "HAZARDS" TAKES INTO
ACCOUNT THE PHYSICAL HAZARDS REGULARLY ENCOUNTERED, THEIR FREQUENCY,
AND THE SEVERITY OF INJURY THEY CAN CAUSE.  THIS DEFINITION OF "WORKING
CONDITIONS" IS NOT ONLY MANIFESTED IN CORNING'S OWN JOB EVALUATION
PLANS BUT IS ALSO WELL ACCEPTED ACROSS A WIDE RANGE OF AMERICAN
INDUSTRY.  /21/ 

NOWHERE IN ANY OF THESE DEFINITIONS IS TIME OF DAY WORKED MENTIONED
AS A RELEVANT CRITERION.  THE FACT OF THE MATTER IS THAT THE CONCEPT OF
"WORKING CONDITIONS," AS USED IN THE SPECIALIZED LANGUAGE OF JOB
EVALUATION SYSTEMS, SIMPLY DOES NOT ENCOMPASS SHIFT DIFFERENTIALS. 
INDEED, WHILE CORNING NOW ARGUES THAT NIGHT INSPECTION WORK IS NOT
EQUAL TO DAY INSPECTION WORK, ALL OF ITS OWN JOB EVALUATION PLANS,
INCLUDING THE ONE NOW IN EFFECT, HAVE CONSISTENTLY TREATED THEM AS
EQUAL IN ALL RESPECTS, INCLUDING WORKING CONDITIONS.  /22/  AND
CORNING'S MANAGER OF JOB EVALUATION TESTIFIED IN NO. 73 - 29 THAT TIME
OF DAY WORKED WAS NOT CONSIDERED TO BE A "WORKING CONDITION."  /23/
SIGNIFICANTLY, IT IS NOT THE SECRETARY IN THIS CASE WHO IS TRYING TO
LOOK BEHIND CORNING'S BONA FIDE JOB EVALUATION SYSTEM TO REQUIRE EQUAL
PAY FOR JOBS WHICH CORNING HAS HISTORICALLY VIEWED AS UNEQUAL WORK. 
RATHER, IT IS CORNING WHICH ASKS US TO DIFFERENTIATE BETWEEN JOBS WHICH
THE COMPANY ITSELF HAS ALWAYS EQUATED.  WE AGREE WITH THE SECOND
CIRCUIT THAT THE INSPECTION WORK AT ISSUE IN THIS CASE, WHETHER
PERFORMED DURING THE DAY OR NIGHT, IS "EQUAL WORK" AS THAT TERM IS
DEFINED IN THE ACT.  /24/ 

THIS DOES NOT MEAN, OF COURSE, THAT THERE IS NO ROOM IN THE EQUAL
PAY ACT FOR NONDISCRIMINATORY SHIFT DIFFERENTIALS.  WORK ON A STEADY
NIGHT SHIFT NO DOUBT HAS PSYCHOLOGICAL AND PHYSIOLOGICAL IMPACTS MAKING
IT LESS ATTRACTIVE THAN WORK ON A DAY SHIFT.  THE ACT CONTEMPLATES THAT
A MALE NIGHT WORKER MAY RECEIVE A HIGHER WAGE THAN A FEMALE DAY WORKER,
JUST AS IT CONTEMPLATES THAT A MALE EMPLOYEE WITH 20 YEARS'  SENIORITY
CAN RECEIVE A HIGHER WAGE THAN A WOMAN WITH TWO YEARS'  SENIORITY. 
FACTORS SUCH AS THESE PLAY A ROLE UNDER THE ACT'S FOUR SENIORITY
EXCEPTION, THE SHIFT DIFFERENTIAL UNDER THE CATCH-ALL EXCEPTION FOR
DIFFERENTIALS "BASED ON ANY OTHER FACTOR OTHER THAN SEX."  /25/ 

THE QUESTION REMAINS, HOWEVER, WHETHER CORNING CARRIED ITS BURDEN OF
PROVING THAT THE HIGHER RATE PAID FOR NIGHT INSPECTION WORK, UNTIL 1966
PERFORMED SOLELY BY MEN, WAS IN FACT INTENDED TO SERVE AS COMPENSATION
FOR NIGHT WORK, OR RATHER CONSTITUTED AN ADDED PAYMENT BASED UPON SEX. 
WE AGREE THAT THE RECORD AMPLY SUPPORTS THE DISTRICT COURT'S CONCLUSION
THAT CORNING HAD NOT SUSTAINED ITS BURDEN OF PROOF.  /26/  AS ITS
HISTORY REVEALED, "THE HIGHER NIGHT RATE WAS IN LARGE PART THE PRODUCT
OF THE GENERALLY HIGHER WAGE LEVEL OF MALE WORKERS AND THE NEED TO
COMPENSATE THEM FOR PERFORMING WHAT WERE REGARDED AS DEMEANING TASKS." 
474 F.2D, AT 233.  THE DIFFERENTIAL IN BASE WAGES ORIGINATED AT A TIME
WHEN NO OTHER NIGHT EMPLOYEES RECEIVED HIGHER PAY THAN CORRESPONDING
DAY WORKERS AND IT WAS MAINTAINED LONG AFTER THE COMPANY INSTITUTED A
SEPARATE PLANT-WIDE SHIFT DIFFERENTIAL WHICH WAS THOUGHT TO COMPENSATE
ADEQUATELY FOR THE ADDITIONAL BURDENS OF NIGHT WORK.  THE DIFFERENTIAL
AROSE SIMPLY BECAUSE MEN WOULD NOT WORK AT THE LOW RATES PAID WOMEN
INSPECTORS, AND IT REFLECTED A JOB MARKET IN WHICH CORNING COULD PAY
WOMEN LESS THAN MEN FOR THE SAME WORK.  THAT THE COMPANY TOOK ADVANTAGE
OF SUCH A SITUATION MAY BE UNDERSTANDABLE AS A MATTER OF ECONOMICS, BUT
ITS DIFFERENTIAL NEVERTHELESS BECAME ILLEGAL ONCE CONGRESS ENACTED INTO
LAW THE PRINCIPLE OF EQUAL PAY FOR EQUAL WORK. 

        III 

WE NOW MUST CONSIDER WHETHER CORNING CONTINUED TO REMAIN IN
VIOLATION OF THE ACT AFTER 1966 WHEN, WITHOUT CHANGING THE BASE WAGE
RATES FOR DAY AND NIGHT INSPECTORS, IT BEGAN TO PERMIT WOMEN TO BID FOR
JOBS ON THE NIGHT SHIFT AS VACANCIES OCCURRED.  IT IS EVIDENT THAT THIS
WAS MORE THAN A TOKEN GESTURE TO END DISCRIMINATION, AS TURNOVER IN THE
NIGHT SHIFT INSPECTION JOBS WAS RAPID.  THE RECORD IN NO. 73 - 29
SHOWS, FOR EXAMPLE, THAT DURING THE TWO-YEAR PERIOD AFTER JUNE 1, 1966,
THE DATE WOMEN WERE FIRST PERMITTED TO BID FOR NIGHT INSPECTION JOBS,
WOMEN TOOK 152 OF THE 278 OPENINGS, AND WOMEN WITH VERY LITTLE
SENIORITY WERE ABLE TO OBTAIN POSITIONS ON THE NIGHT SHIFT.  RELYING ON
THESE FACTS, THE COMPANY ARGUES THAT IT CEASED DISCRIMINATING AGAINST
WOMEN IN 1966, AND WAS NO LONGER IN VIOLATION OF THE EQUAL PAY ACT. 

BUT THE ISSUE BEFORE US IS NOT WHETHER THE COMPANY, IN SOME ABSTRACT
SENSE, CAN BE SAID TO HAVE TREATED MEN THE SAME AS WOMEN AFTER 1966. 
RATHER, THE QUESTION IS WHETHER THE COMPANY REMEDIED THE SPECIFIC
VIOLATION OF THE ACT WHICH THE SECRETARY PROVED.  WE AGREE WITH THE
SECOND CIRCUIT, AS WELL AS WITH ALL OTHER CIRCUITS THAT HAVE HAD
OCCASION TO CONSIDER THIS ISSUE, THAT THE COMPANY COULD NOT CURE ITS
VIOLATION EXCEPT BY EQUALIZING THE BASE WAGES OF FEMALE DAY INSPECTORS
WITH THE HIGHER RATES PAID THE NIGHT INSPECTORS.  THIS RESULT IS
IMPLICIT IN THE ACT'S LANGUAGE, ITS STATEMENT OF PURPOSE, AND ITS
LEGISLATIVE HISTORY. 

AS THE SECOND CIRCUIT NOTED, CONGRESS ENACTED THE EQUAL PAY ACT
"(RECOGNIZING THE WEAKER BARGAINING POSITION OF MANY WOMEN AND
BELIEVING THAT DISCRIMINATION IN WAGE RATES REPRESENTED UNFAIR EMPLOYER
EXPLOITATION OF THIS SOURCE OF CHEAP LABOR."  474 F.2D, AT 234.  IN
RESPONSE TO EVIDENCE OF THE MANY FAMILIES DEPENDENT ON THE INCOME OF
WORKING WOMEN, CONGRESS INCLUDED IN THE ACT'S STATEMENT OF PURPOSE A
FINDING THAT "THE EXISTENCE . . . OF WAGE DIFFERENTIALS BASED ON SEX .
. . DEPRESSES WAGES AND LIVING STANDARDS FOR EMPLOYEES NECESSARY FOR
THEIR HEALTH AND EFFICIENCY."  PUB. L. 88 - 38, 2 (A)(1), 77 STAT. 56
(1963).  AND CONGRESS DECLARED IT TO BE THE POLICY OF THE ACT TO
CORRECT THIS CONDITION.  2(B). 

TO ACHIEVE THIS END, CONGRESS REQUIRED THAT EMPLOYERS PAY EQUAL PAY
FOR EQUAL WORK AND THEN SPECIFIED: 

"PROVIDED, THAT AN EMPLOYER WHO IS PAYING A WAGE RATE DIFFERENTIAL
IN VIOLATION OF THIS SUBSECTION SHALL NOT, IN ORDER TO COMPLY WITH THE
PROVISIONS OF THIS SUBSECTION, REDUCE THE WAGE RATE OF ANY EMPLOYEE." 
29 U.S.C. 206 (D)(1).  THE PURPOSE OF THIS PROVISO WAS TO ENSURE THAT
TO REMEDY VIOLATIONS OF THE ACT, "(THE LOWER WAGE RATE MUST BE
INCREASED TO THE LEVEL OF THE HIGHER."  H. R. REP. NO. 309, SUPRA, AT
3.  COMMENTS OF INDIVIDUAL LEGISLATORS ARE ALL CONSISTENT WITH THIS
VIEW.  REPRESENTATIVE DWYER REMARKED, FOR EXAMPLE, "THE OBJECTIVE OF
EQUAL PAY LEGISLATION . . . IS NOT TO DRAG DOWN MEN WORKERS TO THE WAGE
LEVELS OF WOMEN, BUT TO RAISE WOMEN TO THE LEVLES ENJOYED BY MEN IN
CASES WHERE DISCRIMINATION IS STILL PRACTICED."  /27/  REPRESENTATIVE
GRIFFIN ALSO THOUGHT IT CLEAR THAT "(THE ONLY WAY A VIOLATION COULD BE
REMEDIED UNDER THE BILL . . . IS FOR THE LOWER WAGES TO BE RAISED TO
THE HIGHER."  /28/ 

BY PROVING THAT AFTER THE EFFECTIVE DATE OF THE EQUAL PAY ACT,
CORNING PAID FEMALE DAY INSPECTORS LESS THAN MALE NIGHT INSPECTORS WERE
UNLAWFULLY DEPRESSED AND THAT THE FAIR WAGE FOR INSPECTION WORK WAS THE
BASE WAGE PAID TO MALE INSPECTORS ON THE NIGHT SHIFT.  THE WHOLE
PURPOSE OF THE ACT WAS TO REQUIRE THAT THESE DEPRESSED WAGES BE RAISED,
IN PART AS A MATTER OF SIMPLE JUSTICE TO THE EMPLOYEES THEMSELVES, BUT
ALSO A MATTER OF MARKET ECONOMICS, SINCE CONGRESS RECOGNIZED AS WELL
THAT DISCRIMINATION IN WAGES ON THE BASIS OF SEX "CONSTITUTES AN UNFAIR
METHOD OF COMPETITION."  2(A)(5). 

WE AGREE WITH JUDGE FRIENDLY THAT 

     "IN LIGHT OF THIS APPARENT CONGRESSIONAL UNDERSTANDING, WE

  CANNOT HOLD THAT CORNING, BY ALLOWING SOME--OR EVEN MANY--WOMEN

  TO MOVE INTO THE HIGHER PAID NIGHT JOBS, ACHIEVED FULL COMPLIANCE

  WITH THE ACT.  CORNING'S ACTION STILL LEFT THE INSPECTORS ON THE

DAY SHIFT--VIRTUALLY ALL WOMEN--EARNING A LOWER BASE WAGE THAN

  THE NIGHT SHIFT INSPECTORS BECAUSE OF A DIFFERENTIAL INITIALLY

  BASED ON SEX AND STILL NOT JUSTIFIED BY ANY OTHER CONSIDERATION;

  IN EFFECT, CORNING WAS STILL TAKING ADVANTAGE OF THE AVAILABILITY

  OF FEMALE LABOR TO FILL ITS DAY SHIFT AT A DIFFERENTIALLY LOW

  WAGE RATE NOT JUSTIFIED BY ANY FACTOR OTHER THAN SEX."  474 F.2D

  235. 

THE EQUAL PAY ACT IS BROADLY REMEDIAL, AND IT SHOULD BE CONSTRUED
AND APPLIED SO AS TO FULFILL THE UNDERLYING PURPOSES WHICH CONGRESS
SOUGHT TO ACHIEVE.  IF, AS THE SECRETARY PROVED, THE WORK PERFORMED BY
WOMEN ON THE DAY SHIFT WAS EQUAL TO THAT PERFORMED BY MEN ON THE NIGHT
SHIFT, THE COMPANY BECAME OBLIGATED TO PAY THE WOMEN THE SAME BASE WAGE
AS THEIR MALE COUNTERPARTS ON THE EFFECTIVE DATE OF THE ACT.  TO PERMIT
THE COMPANY TO ESCAPE THAT OBLIGATION BY AGREEING TO ALLOW SOME WOMEN
TO WORK ON THE NIGHT SHIFT AT A HIGHER RATE OF PAY AS VACANCIES
OCCURRED WOULD FRUSTRATE, NOT SERVE, CONGRESS'  ENDS.  SEE SHULTZ V.
AMERICAN CAN CO. - DIXIE PRODUCTS, 424 F.2D 356, 359 (CA8 1970);
HODGSON V. MILLER BREWING CO., 457 F.2D 805, 808 - 809 (CA6 1972. 

THE COMPANY'S FINAL CONTENTION--THAT IT CURED ITS VIOLATION OF THE
ACT WHEN A NEW COLLECTIVE-BARGAINING AGREEMENT WENT INTO EFFECT ON
JANUARY 20, 1969--NEED NOT DETAIN US LONG.  WHILE THE NEW AGREEMENT
PROVIDED FOR EQUAL BASE WAGES FOR NIGHT OR DAY INSPECTORS HIRED AFTER
THAT DATE, IT CONTINUED TO PROVIDE UNEQUAL BASE WAGES FOR EMPLOYEES
HIRED BEFORE THAT DATE, A DISCRIMINATION LIKELY TO CONTINUE FOR SOME
TIME INTO THE FUTURE BECAUSE OF A LARGE NUMBER OF LAID-OFF EMPLOYEES
WHO HAD TO BE OFFERED RE-EMPLOYMENT BEFORE NEW INSPECTORS COULD BE
HIRED.  AFTER CONSIDERING THE RATHER COMPLEX METHOD IN WHICH THE NEW
WAGE RATES FOR EMPLOYEES HIRED PRIOR TO JANUARY 1969 WERE CALCULATED
AND THE COMPANY'S STATED PURPOSE BEHIND THE PROVISIONS OF THE NEW
AGREEMENT, THE DISTRICT COURT IN NO. 73 - 29 CONCLUDED THAT THE LOWER
BASE WAGE FOR DAY INSPECTORS WAS A DIRECT PRODUCT OF THE COMPANY'S
FAILURE TO EQUALIZE THE BASE WAGES FOR MALE AND FEMALE INSPECTORS AS OF
THE EFFECTIVE DATE OF THE ACT.  WE AGREE IT IS CLEAR FROM THE RECORD
THAT HAD THE COMPANY EQUALIZED THE BASE-WAGE RATES OF MALE AND FEMALE
INSPECTORS ON THE EFFECTIVE DATE OF THE ACT, AS THE LAW REQUIRED, THE
DAY INSPECTORS IN 1969 WOULD HAVE BEEN ENTITLED TO THE SAME HIGHER "RED
CIRCLE" RATE THE COMPANY PROVIDED FOR NIGHT INSPECTORS.  /29/  WE
THEREFORE CONCLUDE THAT ON THE FACTS OF THIS CASE, THE COMPANY'S
CONTINUED DISCRIMINATION IN BASE WAGES BETWEEN NIGHT AND DAY WORKERS,
THOUGH PHRASED IN TERMS OF A NEUTRAL FACTOR OTHER THAN SEX,
NEVERTHELESS OPERATED TO PERPETUATE THE EFFECTS OF THE COMPANY'S PRIOR
ILLEGAL PRACTICE OF PAYING WOMEN LESS THAN MEN FOR EQUAL WORK.  CF.
GRIGGS V. DUKE POWER CO., 401 U.S. 424, 430 (1971).     THE JUDGMENT IN
NO. 73 - 29 IS AFFIRMED.  THE JUDGMENT IN NO. 73 - 695 IS REVERSED AND
THE CASE REMANDED TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  NO EMPLOYER HAVING EMPLOYEES SUBJECT TO ANY PROVISIONS OF THIS
EMPLOYEES ARE EMPLOYED, BETWEEN EMPLOYEES ON THE BASIS OF SEX BY PAYING
WAGES TO EMPLOYEES IN SUCH ESTABLISHMENT AT A RATE LESS THAN THE RATE
AT WHICH HE PAYS WAGES TO EMPLOYEES OF THE OPPOSITE SEX IN SUCH
ESTABLISHMENT FOR EQUAL WORK ON JOBS THE PERFORMANCE OF WHICH REQUIRES
EQUAL SKILL, EFFORT, AND RESPONSIBILITY, AND WHICH ARE PERFORMED UNDER
SIMILAR WORKING CONDITIONS, EXCEPT WHERE SUCH PAYMENT IS MADE PURSUANT
TO (I) A SENIORITY SYSTEM; (II) A MERIT SYSTEM; (III) A SYSTEM WHICH
MEASURES EARNINGS BY QUANTITY OR QUALITY OF PRODUCTION; OR (IV) A
DIFFERENTIAL BASED ON ANY OTHER FACTOR OTHER THAN SEX:  PROVIDED, THAT
AN EMPLOYER WHO IS PAYING A WAGE RATE DIFFERENTIAL IN VIOLATION OF THIS
SUBSECTION SHALL NOT, IN ORDER TO COMPLY WITH THE PROVISIONS OF THIS
SUBSECTION, REDUCE THE WAGE RATE OF ANY EMPLOYEE." 

/2/  NEW YORK PROHIBITED THE EMPLOYMENT OF WOMEN BETWEEN 10 P.M. AND
6 A.M.  SEE 1927 N.Y. LAWS, C. 453; 1930 N.Y. LAWS, C. 868,
PENNSYLVANIA ALSO PROHIBITED THEM FROM WORKING BETWEEN 10 P.M. AND 6
A.M.  SEE ACT OF JULY 25, 1913, ACT NO. 466, PA. LAWS 1913. 

/3/  HIGHER WAGES WERE DEMANDED IN PART BECAUSE THE MEN HAD BEEN
EARNING MORE MONEY ON THEIR DAY SHIFT JOBS THAN WOMEN WERE PAID FOR
INSPECTION WORK.  THUS, AT THE TIME OF THE CREATION OF THE NEW NIGHT
SHIFT, FEMALE DAY SHIFT INSPECTORS RECEIVED WAGES RANGING FROM 20 TO 30
CENTS PER HOUR.  MOST OF THE MEN DESIGNATED TO FILL THE NEWLY CREATED
NIGHT SHIFT POSITIONS HAD BEEN WORKING IN THE BLOWING ROOM WHERE THE
LOWEST WAGE RATE WAS 48 CENTS PER HOUR AND WHERE ADDITIONAL INCENTIVE
PAY COULD BE EARNED.  AS NIGHT SHIFT INSPECTORS THESE MEN RECEIVED 53
CENTS PER HOUR.  THERE IS ALSO SOME EVIDENCE IN THE RECORD THAT
ADDITIONAL COMPENSATION WAS NECESSARY BECAUSE THE MEN VIEWED INSPECTION
JOBS AS "DEMEANING" AND AS "WOMEN'S WORK." 

/4/  A TEMPORARY EXCEPTION WAS MADE DURING WORLD WAR II WHEN
MANPOWER SHORTAGES CAUSED CORNING TO BE PERMITTED TO EMPLOY WOMEN ON
THE STEADY NIGHT SHIFT INSPECTION JOBS AT BOTH LOCATIONS.  IT APPEARS
THAT WOMEN NIGHT INSPECTORS DURING THIS PERIOD WERE PAID THE SAME
HIGHER NIGHT SHIFT WAGES EARNED BY THE MEN. 

/5/  THE SHIFT DIFFERENTIAL WAS ORIGINALLY THREE CENTS AN HOUR FOR
THE AFTERNOON SHIFT AND FIVE CENTS AN HOUR FOR THE NIGHT SHIFT.  IT HAS
BEEN INCREASED TO 10 AND 16 CENTS PER HOUR RESPECTIVELY. 

/6/  SECTION 4 OF THE EQUAL PAY ACT PROVIDED THAT THE ACT WOULD TAKE
EFFECT UPON THE EXPIRATION OF ONE YEAR FROM JUNE 10, 1963, THE DATE OF
ITS ENACTMENT, EXCEPT THAT IN THE CASE OF EMPLOYEES COVERED BY A BONA
FIDE COLLECTIVE-BARGAINING AGREEMENT IN EFFECT AT LEAST 30 DAYS PRIOR
TO THE DATE OF ENACTMENT, THE ACT WOULD TAKE EFFECT UPON THE
TERMINATION OF SUCH COLLECTIVE-BARGAINING AGREEMENT.  IT IS CONCEDED
THAT THE ACT BECAME EFFECTIVE WITH RESPECT TO THE CORNING, NEW YORK,
PLANTS ON JUNE 11, 1964, THOUGH IT IS ALSO STIPULATED THAT THE STATUTE
OF LIMITATIONS BARRED ALL CLAIMS FOR BACKPAY PRIOR TO NOVEMBER 1,
1964.  WITH RESPECT TO THE WELLSBORO PLANT, THERE IS APPARENTLY SOME
DISPUTE BETWEEN THE COMPANY AND THE SECRETARY AS TO WHEN THE ACT TOOK
EFFECT.  CORNING EVIDENTLY BELIEVES THE ACT TOOK EFFECT ON JANUARY 20,
1965, BECAUSE OF AN OUTSTANDING COLLECTIVE-BARGAINING AGREEMENT.  THE
SECRETARY CLAIMS THAT THIS AGREEMENT WAS REOPENED ON JANUARY 24, 1964,
AND THAT THE PLANT THEREFORE BECAME SUBJECT TO THE ACT'S REQUIREMENTS
ON JUNE 11, 1964, ONE YEAR AFTER ENACTMENT.  WE SEE NO NEED TO RESOLVE
THIS QUESTION AS IT APPEARS THAT, IN ANY EVENT, THE PARTIES AGREE THE
STATUTE OF LIMITATIONS BARS RECOVERY OF BACK WAGES FOR ANY VIOLATION
PRIOR TO OCTOBER 1966. 

/7/  IN NEW YORK, A 1953 AMENDMENT ALLOWED FEMALES OVER THE AGE OF
21 TO WORK AFTER MIDNIGHT IN FACTORIES OPERATING MULTIPLE SHIFTS WHERE
THE INDUSTRIAL COMMISSIONER FOUND TRANSPORTATION AND SAFETY CONDITIONS
TO BE SATISFACTORY AND GRANTED APPROVAL.  SEE 1953 N.Y. LAWS, C. 708,
AMENDING N.Y. LABOR LAW 172, FORMERLY CODIFIED AT N.Y. LABOR LAW 173
(3)(A)(1) (1965).  IN PENNSYLVANIA, THE LAW WAS AMENDED IN 1947 TO
PERMIT WOMEN TO WORK AT NIGHT CONDITIONED UPON THE APPROVAL OF THE
STATE DEPARTMENT OF LABOR AND INDUSTRY, PA. LAWS 1947, ACT NO. 543, P.
1397, CODIFIED AT PA. STAT. ANN., TIT. 43, 104 (SUPP. 1974 - 1975), BUT
STATE REGULATIONS REQUIRED THAT, IN ORDER TO OBTAIN APPROVAL TO EMPLOY
WOMEN AT NIGHT, AN EMPLOYER WAS REQUIRED TO FURNISH TRANSPORTATION
WHERE PUBLIC TRANSPORTATION WAS NOT AVAILABLE.  THE DISTRICT COURT IN
NO. 73 - 695 FOUND THAT PUBLIC TRANSPORTATION WAS NOT AVAILABLE IN
WELLSBORO AND THAT IT WAS NOT ECONOMICALLY FEASIBLE FOR CORNING TO
FURNISH TRANSPORTATION FOR ITS FEMALE EMPLOYEES.  IN JULY 1965,
HOWEVER, THE PENNSYLVANIA REGULATIONS WERE AMENDED TO PERMIT EMPLOYERS
TO HIRE WOMEN AT NIGHT WHERE REGULAR PRIVATE TRANSPORTATION IS
AVAILABLE.  PA. DEPT. OF LABOR AND INDUSTRY, REGULATIONS RELATING TO
HOURS OF WORK AND CONDITIONS OF EMPLOYMENT OF WOMEN IN PA., RULE S - 8
(C) (1966). 

IN 1969, BOTH NEW YORK AND PENNSYLVANIA REPEALED, EITHER EXPRESSLY
OR BY IMPLICATION, THOSE SPECIAL NIGHT-WORK RESTRICTIONS FOR WOMEN
CITED ABOVE.  SEE 2 N.Y. LAWS 1969, C. 1042, 2, P. 2630, REPEALING N.Y.
LABOR LAW 173.3.A(1) (1965) AND REPLACING IT WITH 177.1(C1, WHICH WAS
SUBSEQUENTLY REPEALED IN 1973, 1 N.Y. LAWS 1973, C. 377, 11, P. 1336;
PA. LAWS 1969, ACT NO. 56, P. 133, WHICH, BY INCLUDING SEX AS A
PROHIBITED FORM OF DISCRIMINATION, PA. STAT. ANN., TIT. 43, 951 ET SEQ.
(SUPP. 1974 - 1975), IMPLICITLY VOIDED ALL LAWS AND REGULATIONS
SPECIFICALLY PROTECTING ONE SEX.  SEE OP. ATTY. GEN. NO. 69 - 304, DEC.
5, 1969. 

/8/  THE DISTRICT COURT IN NO. 73 - 29 ISSUED A BROADLY WORDED
INJUNCTION AGAINST ALL FUTURE VIOLATIONS OF THE ACT.  THE COURT OF
APPEALS MODIFIED THE INJUNCTION BY LIMITING IT TO INSPECTORS AT THE
THREE PLANTS AT ISSUE IN THAT CASE, LARGELY BECAUSE OF THAT COURT'S
BELIEF THAT "CORNING HAD BEEN ENDEAVORING SINCE 1966--SINCERELY, IF
INEFFECTIVELY--TO BRING ITSELF INTO COMPLIANCE."  474 F.2D 226, 236
(CA2 1973).  SINCE THE GOVERNMENT DID NOT SEEK CERTIORARI FROM THIS
ASPECT OF THE SECOND CIRCUIT'S JUDGMENT, WE HAVE NO OCCASION TO
CONSIDER THIS QUESTION. 

/9/  SEE 109 CONG. REC. 9196 (1963) (REP. FRELINGHUYSEN); 109 CONG.
REC. 9208 (REP. GOODELL). 

/10/  HODGSON V. CORNING GLASS WORKS, 474 F.2D 226, 231 (CA2 1973);
BRENNAN V. CORNING GLASS WORKS, 480 F.2D 1254, 1258 (CA3 1973).  SEE
ALSO HODGSON V. BEHRENS DRUG CO., 475 F.2D 1041, 1049 (CA5 1973);
HODGSON V. GOLDEN ISLES CONVALESCENT HOMES, INC., 468 F.2D 1256, 1257
(CA5 1972); HODGSON V. FAIRMONT SUPPLY CO., 454 F.2D 490, 493 (CA4
1972); HODGSON V. BROOKHAVEN GENERAL HOSPITAL, 436 F.2D 719, 722 (CA5
1970); SHULTZ V. AMERICAN CAN CO.-DIXIE PRODUCTS, 424 F.2D 356, 360
(CA8 1970). 

/11/  SEE HODGSON V. CORNING GLASS WORKS, SUPRA, AT 231; BRENNAN V.
CORNING GLASS WORKS, SUPRA, AT 1258; HODGSON V. ROBERT HALL CLOTHES,
INC., 473 F.2D 589, 597 (CA3), CERT. DENIED SUB NOM. BRENNAN V. ROBERT
HALL CLOTHES, INC., 414 U.S. 866 (1973); HODGSON V. SECURITY NAT. BANK
OF SIOUX CITY, 460 F.2D 57, 59 N. 4 (CA8 1972); SHULTZ V. WHEATON GLASS
CO., 421 F.2D 259, 266 (CA3), CERT. DENIED, 398 U.S. 905 (1970); SHULTZ
V. AMERICAN CAN CO., SUPRA, AT 362; SHULTZ V. FIRST VICTORIA NAT. BANK,
420 F.2D 648, 654 N. 8 (CA5 1969); HODGSON V. INDUSTRIAL BANK OF
SAVANNAH, 347 F.SUPP.  63, 67 (SD GA. 1972); HODGSON V. MAISON MIRAMON,
INC., 344 F.SUPP.  843, 845 (ED LA. 1972); HODGSON V. J. LYLES, INC.,
335 F.SUPP.  128, 131 (MD. 1971), AFF'D, 468 F.2D 625 (CA4 1972);
HODGSON V. CITY STORES, INC., 332 F.SUPP.  942, 947 (MD ALA. 1971);
SHULTZ V. KIMBERLY-CLARK CORP., 315 F.SUPP.  1323, 1332 (WD TENN.
1970); WIRTZ V. BASIC INC. 256 F.SUPP.  786, 790 (NEV. 1966).  SEE ALSO
29 CFR 800.141 (1973). 

/12/  SEE A. H. PHILLIPS, INC. V. WALLING, 324 U.S. 490, 493 (1945);
ARNOLD V. BEN KANOWSKY, INC., 361 U.S. 388, 392 (1960); WALLING V.
GENERAL INDUSTRIES CO., 330 U.S. 545, 547 - 548 (1947); MITCHELL V.
KENTUCKY FINANCE CO., 359 U.S. 290, 295 (1959). 

/13/  THE SECRETARY ALSO ADVANCES AN ARGUMENT THAT EVEN IF NIGHT AND
DAY INSPECTION WORK IS ASSUMED NOT TO BE PERFORMED UNDER SIMILAR
WORKING CONDITIONS, THE DIFFERENTIAL IN BASE WAGES IS NEVERTHELESS
UNLAWFUL UNDER THE ACT.  THE ADDITIONAL BURDEN OF WORKING AT NIGHT, THE
ARGUMENT GOES, WAS ALREADY FULLY REFLECTED IN THE PLANT-WIDE SHIFT
DIFFERENTIAL, AND THE SHIFTS WERE MADE "SIMILAR" BY PAYMENT OF THE
SHIFT DIFFERENTIAL.  THIS ARGUMENT DOES NOT APPEAR TO HAVE BEEN
PRESENTED TO EITHER THE SECOND OR THE THIRD CIRCUIT, AS THE OPINIONS IN
BOTH CASES REFLECT AN ASSUMPTION ON THE PART OF ALL CONCERNED THAT THE
SECRETARY'S CASE WOULD FAIL UNLESS NIGHT AND DAY INSPECTION WORK WAS
FOUND TO BE PERFORMED UNDER SIMILAR WORKING CONDITIONS.  FOR THIS
REASON, AND IN VIEW OF OUR RESOLUTION OF THE "WORKING CONDITION" ISSUE,
WE HAVE NO OCCASION TO CONSIDER AND INTIMATE NO VIEWS ON THIS ASPECT OF
THE SECRETARY'S ARGUMENT. 

/14/  SEE S. 882, 88TH CONG., 1ST SESS., 4 (1963); CF. S. 910, 88TH
CONG., 1ST SESS., 4 (A)( (1963). 

/15/  SEE, E.G., HEARINGS ON EQUAL PAY ACT OF 1963 BEFORE THE
SUBCOMMITTEE ON LABOR OF THE SENATE COMMITTEE ON LABOR AND PUBLIC
WELFARE, 88TH CONG., 1ST SESS., 26, 73, 79, 124, 140, 178 (1963)
(HEREINAFTER SENATE HEARINGS); HEARINGS ON EQUAL PAY ACT BEFORE THE
SPECIAL SUBCOMMITTEE ON LABOR OF THE HOUSE COMMITTEE ON EDUCATION AND
LABOR, 88TH CONG., 1ST SESS., 145 - 146 (1963) (HEREINAFTER HOUSE
HEARINGS). 

/16/  SEE SENATE HEARINGS 96 - 104; HOUSE HEARINGS 232 - 240.  SEE
ALSO HOUSE HEARINGS 304 - 305, 307 - 308. 

/17/  SEE, E.G., SENATE HEARINGS 73, 74, 79, 124, 130, 138, 140,
178; HOUSE HEARINGS 145, 146, 159, 199 - 200. 

/18/  SENATE HEARINGS 98; HOUSE HEARINGS 234. 

/19/  109 CONG. REC. 9195 (1963) (REP. FRELINGHUYSEN).  SEE ALSO H.
R. REP. NO. 309, 88TH CONG., 1ST SESS., 8 (1963). 

/20/  SENATE HEARINGS 98 - 99; HOUSE HEARINGS 234 - 236. 

/21/  SEE D. BELCHER, WAGE AND SALARY ADMINISTRATION 271 - 274, 278,
287 - 289 (1955), 2 UNITED STATES DEPT. OF LABOR, DICTIONARY OF
OCCUPATIONAL TITLES 656 (3D ED. 1965); UNITED STATES CIVIL SERVICE
COMMISSION, JOB GRADING SYSTEM FOR TRADES AND LABOR OCCUPATIONS, F.P.M.
SUPP. 512 - 1, P. A3 - 3 (1970). 

/22/  PURSUANT TO ITS 1944 COLLECTIVE-BARGAINING AGREEMENT, CORNING
ADOPTED A JOB CLASSIFICATION SYSTEM DEVELOPED BY ITS CONSULTANTS,
LABELED THE SJ & H PLAN, WHICH EVALUATED INSPECTOR JOBS ON THE BASIS OF
"GENERAL SCHOOLING," "TRAINING PERIOD," "MANUAL SKILL," "VERSATILITY,"
"JOB KNOWLEDGE,"  "RESPONSIBILITY," AND "WORKING CONDITIONS," WHICH
WERE DEFINED AS THE "SURROUNDING CONDITIONS (WET, HEAT, COLD, DUST,
GREASE, NOISES, ETC.) AND PHYSICAL HAZARDS (BRUISES, CUTS, HEAVY
LIFTING, FUMES, SLIPPERY FLOORS, MACHINES, CHEMICALS, GASES, BODILY
INJURIES, ETC.) TO WHICH EMPLOYEES ARE UNAVOIDABLY SUBJECTED WHILE
PERFORMING THE DUTIES." 

A NEW PLAN, PUT INTO EFFECT IN 1963 - 1964 AND CALLED THE CGW PLAN,
ALSO FOUND NO SIGNIFICANT DIFFERENCES IN THE DUTIES PERFORMED BY MEN
AND WOMEN INSPECTORS AND AWARDED THE SAME POINT VALUES FOR SKILL,
EFFORT, RESPONSIBILITY, AND WORKING CONDITIONS, REGARDLESS OF SHIFT. 

/23/  APP. 66. 

/24/  IN NO. 73 - 29, CORNING ALSO CLAIMED THAT THE NIGHT INSPECTION
WORK WAS NOT EQUAL TO DAY SHIFT INSPECTION WORK BECAUSE NIGHT SHIFT
INSPECTORS HAD TO DO A CERTAIN AMOUNT OF PACKING, LIFTING, AND CLEANING
WHICH WAS NOT PERFORMED BY DAY SHIFT INSPECTORS.  NOTING THAT IT IS NOW
WELL SETTLED THAT JOBS NEED NOT BE IDENTICAL IN EVERY ASPECT BEFORE THE
EQUAL PAY ACT IS APPLICABLE, THE COURT OF APPEALS CONCLUDED THAT THE
EXTRA WORK PERFORMED BY NIGHT INSPECTORS WAS OF SO LITTLE CONSEQUENCE
THAT THE JOBS REMAINED SUBSTANTIALLY EQUAL.  SEE 474 F.2D, AT 234.  SEE
ALSO SHULTZ V. WHEATON GLASS CO., 421 F.2D, AT 265; SHULTZ V. AMERICAN
CAN CO., 424 F.2D, AT 360; HODGSON V. FAIRMONT SUPPLY CO., 454 F.2D, AT
493.  THE COMPANY HAS NOT PURSUED THIS ISSUE HERE. 

/25/  AN ADMINISTRATIVE INTERPRETATION BY THE WAGE AND HOUR
ADMINISTRATOR RECOGNIZES THE LEGITIMACY OF NIGHT SHIFT DIFFERENTIALS
SHOWN TO BE A FACTOR OTHER THAN SEX.  SEE 29 CFR 800.145 (1973). 

/26/  THIS QUESTION, AS WELL AS THE QUESTIONS DISCUSSED IN PART III,
INFRA, WERE CONSIDERED BY THE DISTRICT COURT AND THE COURT OF APPEALS
ONLY IN NO. 73 - 29, AND NOT IN NO. 73 - 695, SINCE IN THE LATTER CASE
THE COURTS BELOW CONCLUDED THAT THE SECRETARY HAD FAILED TO PROVE THAT
NIGHT AND DAY SHIFT INSPECTION WORK WAS PERFORMED UNDER SIMILAR WORKING
CONDITIONS.  WE DEAL WITH THESE ISSUES, THEN, ONLY ON THE BASIS OF THE
RECOR IN NO. 73 - 29.  TO THE EXTENT THAT THERE ARE ANY DIFFERENCES IN
THE RECORDS IN THESE TWO CASES ON FACTUAL MATTERS RELATING TO THESE
QUESTIONS, WE LEAVE IT TO THE DISTRICT COURT AND THE COURT OF APPEALS
IN NO. 73 - 695 TO RESOLVE THESE QUESTIONS, IN THE FIRST INSTANCE, ON
THE BASIS OF THE RECORD CREATED IN THAT CASE.     /27/  109 CONG. REC.
2714 (1963). 

/28/  HOUSE HEARINGS, SUPRA, N. 15, AT 65.  SEE ALSO 109 CONG. REC.,
AT 9196 (REP. THOMPSON). 

/29/  THE JANUARY 1969 AGREEMENT PROVIDED AN 8% OR 20[ PER HOUR
ACROSS-THE-BOARD WAGE INCREASE, APPLIED TO THE PRE-JANUARY 1969 BASE
WAGE AND MADE RETROACTIVE TO NOVEMBER 4, 1968.  THE CONTRACT ALSO
INSTITUTED NEW "JOB EVALUATION" WAGE RATES FOR VARIOUS POSITIONS.  IN
THE CASE OF INSPECTORS, THE NEW "JOB EVALUATION" RATE WAS HIGHER THAN
THE RETROACTIVELY INCREASED BASE WAGE OF DAY SHIFT INSPECTORS BUT WAS
LOWER THAN THE RETROACTIVELY INCREASED BASE WAGE OF NIGHT SHIFT
INSPECTORS.  THE CONTRACT FURTHER PROVIDED THAT WHERE THE JOB
EVALUATION RATE WAS LESS THAN THE CURRENT RATE FOR THE JOB--THAT IS,
LESS THAN THE RETROACTIVELY INCREASED OLD RATE--EMPLOYEES HIRED BEFORE
JANUARY 20, 1969, WOULD CONTINUE TO BE PAID THE OLD RATE, THROUGH "RED
CIRCLE" PROTECTION.  THUS, THE DAY SHIFT INSPECTORS RECEIVED THE NEW
JOB EVALUATION RATE, WHILE THE NIGHT SHIFT INSPECTORS CONTINUED TO
RECEIVE THE HIGHER "RED CIRCLE" NIGHT SHIFT BASE WAGE.  HAD THE COMPANY
COMPLIED WITH THE LAW AND EQUALIZED THE BASE WAGES OF DAY SHIFT
INSPECTORS PRIOR TO 1969, THE RETROACTIVELY INCREASED BASE WAGE OF DAY
SHIFT INSPECTORS WOULD HAVE BEEN THE SAME AS THE RETROACTIVELY
INCREASED RATE OF NIGHT SHIFT INSPECTORS, AND THE DAY SHIFT INSPECTORS
WOULD HAVE BEEN ENTITLED TO THE SAME "RED CIRCLE" PROTECTION GRANTED
THE NIGHT SHIFT INSPECTORS, SINCE THAT RETROACTIVELY INCREASED RATE WAS
HIGHER THAN THE NEW JOB EVALUATION RATE. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, AND MR. JUSTICE REHNQUIST
DISSENT AND WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS FOR THE
THIRD CIRCUIT AND REVERSE THE JUDGMENT OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT FOR THE REASONS STATED BY JUDGE ADAMS IN HIS OPINION FOR
THE COURT OF APPEALS IN BRENNAN V. CORNING GLASS WORKS, 480 F.2D 1254
(CA3 1973). 

SCOTT F. ZIMMERMAN ARGUED THE CAUSE FOR PETITIONER IN NO. 73 - 29
AND FOR RESPONDENT IN NO. 73 - 695.  WITH HIM ON THE BRIEFS WAS WALTER
P. DEFOREST III. 

ALLAN ABBOT TUTTLE ARGUED THE CASE FOR PETITIONER IN NO. 73 - 695
AND FOR RESPONDENT IN NO. 73 - 29.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL BORK, DEPUTY SOLICITOR GENERAL WALLACE, SYLVIA S.
ELLISON, AND HELEN W. JUDD. 

BRIEFS OF AMICI CURIAE WERE FILED IN BOTH CASES BY MILTON SMITH,
GERALD C. SMETANA, LAWRENCE D. EHRLICH, AND JERRY KRONENBERG FOR THE
CHAMBER OF COMMERCE OF THE UNITED STATES, AND BY RUTH BADER GINSBURG
AND MELVIN L. WULF FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL.
..END :



















ANDERSON V. UNITED STATES, 417 U.S. 211 


       ANDERSON ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

  FOURTH CIRCUIT

        NO. 73 - 346.  ARGUED MARCH 19, 1974 - DECIDED JUNE 3,
1974;

           481 F.2D 685, AFFIRMED. 


    FOR HAVING CONSPIRED TO CAST FICTITIOUS VOTES FOR FEDERAL,

  STATE, AND LOCAL CANDIDATES IN A WEST VIRGINIA PRIMARY ELECTION,

  PETITIONERS WERE CONVICTED OF VIOLATING 18 U.S.C. 241, WHICH

  MAKES IT UNLAWFUL TO CONSPIRE TO INJURE ANY CITIZEN IN THE FREE

  EXERCISE OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SECURED BY THE

  CONSTITUTION OR LAWS OF THE UNITED STATES.  AT THE TRIAL, OVER

  PETITIONERS' OBJECTIONS, CERTAIN STATEMENTS MADE BY TWO OF THE

  PETITIONERS AT A LOCAL ELECTION CONTEST HEARING HELD AFTER THE

  ELECTION RESULTS HAD BEEN CERTIFIED ON MAY 27, 1970, WERE

ADMITTED IN EVIDENCE AGAINST ALL THE PETITIONERS TO PROVE THAT

  THE TWO PETITIONERS MAKING THE STATEMENTS HAD PERJURED THEMSELVES

  AT THE ELECTION CONTEST HEARING.  ON APPEAL, THE PETITIONERS

  CONTENDED FOR THE FIRST TIME THAT 241 WAS LIMITED TO CONSPIRACIES

  TO CAST FALSE VOTES IN FEDERAL ELECTIONS, AND THAT ACCORDINGLY

  THE CONSPIRACY CHARGED IN THEIR CASE, AS FAR AS FEDERAL

  JURISDICTION WAS CONCERNED, ENDED ON MAY 27, SO THAT SUBSEQUENT

  OUT-OF-COURT STATEMENTS COULD NOT HAVE FURTHERED ANY 241

  CONSPIRACY AND HENCE SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE. 

  THE COURT OF APPEALS REJECTED THESE CONTENTIONS, AND AFFIRMED THE

  CONVICTIONS.  HELD: 

     1.  THE OUT-OF-COURT STATEMENTS WERE ADMISSIBLE UNDER BASIC

  PRINCIPLES OF THE LAW OF EVIDENCE AND CONSPIRACY, REGARDLESS OF

  WHETHER OR NOT 241 ENCOMPASSES CONSPIRACIES TO CAST FRAUDULENT

  VOTES IN STATE AND LOCAL ELECTIONS.  PP. 214 - 222. 

     (A) THE STATEMENTS WERE NOT HEARSAY, SINCE THEY WERE NOT

  OFFERED IN EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED;

HENCE THEIR ADMISSIBILITY WAS GOVERNED BY THE RULE THAT ACTS OF

  ONE ALLEGED CONSPIRATOR CAN BE ADMITTED INTO EVIDENCE AGAINST THE

  OTHER CONSPIRATORS, IF RELEVANT TO PROVE THE EXISTENCE OF THE

  CONSPIRACY, EVEN THOUGH THEY MAY HAVE OCCURRED AFTER THE

  CONSPIRACY ENDED.  LUTWAK V. UNITED STATES, 344 U.S. 604.  PP.

  219 - 221. 

     (B) SINCE THE STATEMENTS WERE NOT HEARSAY, THE JURY DID NOT

  HAVE TO MAKE A PRELIMINARY FINDING THAT THE CONSPIRACY CHARGED

WAS STILL IN PROGRESS BEFORE IT COULD CONSIDER THEM AS EVIDENCE

  AGAINST THE OTHER DEFENDANTS, AND ACCORDINGLY THE STATEMENTS WERE

  ADMISSIBLE IF RELEVANT TO PROVE THE CONSPIRACY CHARGED.  P. 221. 

     (C) EVEN IF THE FEDERAL CONSPIRACY ENDED ON MAY 27, THE FACT

  THAT TWO OF THE PETITIONERS PERJURED THEMSELVES AT THE LOCAL

  ELECTION CONTEST HEARING WAS RELEVANT AND ADMISSIBLE TO PROVE THE

  UNDERLYING MOTIVE OF THE CONSPIRACY.  ACCORDINGLY, IN ORDER TO

  RULE ON PETITIONERS'  CHALLENGE TO THE ADMISSIBILITY OF THIS

EVIDENCE, THERE WAS NO NEED FOR THE COURT OF APPEALS, AND THERE

  IS NO NEED FOR THIS COURT, TO DECIDE WHETHER PETITIONERS'

  CONSPIRACY ENDED ON MAY 27 FOR PURPOSES OF FEDERAL JURISDICTION

  OR WHETHER 241 APPLIES TO CONSPIRACIES TO CAST FRAUDULENT VOTES

  IN LOCAL ELECTIONS.  PP. 221 - 222. 

     2.  THE EVIDENCE AMPLY SUPPORTS THE VERDICT THAT EACH OF THE

  PETITIONERS ENGAGED IN THE CONSPIRACY WITH THE INTENT OF HAVING

  FALSE VOTES CAST FOR THE FEDERAL CANDIDATES.  PP. 222 - 228. 

     (A) THE FACT THAT PETITIONERS' PRIMARY MOTIVE WAS TO EFFECT
THE

  RESULT IN THE LOCAL RATHER THAN THE FEDERAL ELECTION HAS NO

  SIGNIFICANCE, SINCE ALTHOUGH A SINGLE CONSPIRACY MAY HAVE SEVERAL

  PURPOSES, IF ONE OF THEM--WHETHER PRIMARY OR SECONDARY--VIOLATES

A FEDERAL LAW, THE CONSPIRACY IS UNLAWFUL UNDER FEDERAL LAW.  PP.

  225 - 226. 

     (B) THE PETITIONERS MAY HAVE HAD NO PURPOSE TO CHANGE THE

  OUTCOME OF THE FEDERAL ELECTION IS IRRELEVANT, SINCE THAT IS NOT

  THE SPECIFIC INTENT REQUIRED UNDER 241, BUT RATHER THE INTENT TO

  HAVE FALSE VOTES CAST AND THEREBY TO INJURE THE RIGHT OF ALL

  VOTERS IN A FEDERAL ELECTION TO HAVE THEIR EXPRESSIONS OF CHOICE

  GIVEN FULL VALUE, WITHOUT DILUTION BY FRAUDULENT BALLOTING.  PP.

  226 - 227. 

     (C) EVEN ASSUMING, ARGUENDO, THAT 241 IS LIMITED TO

  CONSPIRACIES TO CAST FALSE VOTES FOR FEDERAL CANDIDATES, IT WAS

  NOT PLAIN ERROR FOR THE DISTRICT COURT'S JURY INSTRUCTIONS NOT TO

  FOCUS SPECIFICALLY UPON THE FEDERAL CONSPIRACY, SINCE IN VIEW OF

  THE FACT THAT THE PROSECUTION'S CASE SHOWED A SINGLE CONSPIRACY

 TO CAST ENTIRE SLATES OF FALSE VOTES AND THE DEFENSE CONSISTED

  PRIMARILY OF A CHALLENGE TO THE GOVERNMENT WITNESSES'

  CREDIBILITY, IT IS INCONCEIVABLE THAT, EVEN IF CHARGED BY MORE

  SPECIFIC INSTRUCTIONS, THE JURY COULD HAVE FOUND A CONSPIRACY TO

  CAST FALSE VOTES FOR LOCAL OFFICES WITHOUT ALSO FINDING A SIMILAR

  CONSPIRACY AFFECTING THE FEDERAL OFFICES.  PP. 227 - 228. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND WHITE, STEWART, BLACKMUN, POWELL, AND

  REHNQUIST, J.J., JOINED.  DOUGLAS, J., FILED A DISSENTING

  OPINION, IN WHICH BRENNAN, J., JOINED, POST, P. 228. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE CONVICTED OF VIOLATING 18 U.S.C. 241 WHICH, IN
PERTINENT PART, MAKES IT UNLAWFUL FOR TWO OR MORE PERSONS TO "CONSPIRE
TO INJURE, OPPRESS, THREATEN, OR INTIMIDATE ANY CITIZEN IN THE FREE
EXERCISE OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES . . . ."  SPECIFICALLY, THE
GOVERNMENT PROVED THAT PETITIONERS ENGAGED IN A CONSPIRACY TO CAST
FICTITIOUS VOTES FOR CANDIDATES FOR FEDERAL, STATE, AND LOCAL OFFICES
IN A PRIMARY ELECTION IN LOGAN COUNTY, WEST VIRGINIA.  AT THE TRIAL, A
QUESTION AROSE CONCERNING THE ADMISSIBILITY AGAINST ALL OF THE
PETITIONERS OF CERTAIN OUT-OF-COURT STATEMENTS MADE BY SOME OF THEM. 
IN CONSIDERING THE PROPRIETY OF THE DISTRICT COURT'S DECISION TO ADMIT
THIS EVIDENCE, THE COURT OF APPEALS THOUGHT IT NECESSARY TO RESOLVE THE
QUESTION WHETHER A CONSPIRACY TO CAST FALSE VOTES IN A STATE OR LOCAL
ELECTION, AS OPPOSED TO A CONSPIRACY TO CAST FALSE VOTES IN A FEDERAL
ELECTION, IS UNLAWFUL UNDER 241.  THE COURT OF APPEALS AFFIRMED
PETITIONERS' CONVICTIONS, CONCLUDING THAT 241 ENCOMPASSES
"CONSPIRACIES, INVOLVING STATE ACTION AT LEAST, TO DILUTE THE EFFECT OF
BALLOTS CAST FOR THE CANDIDATE OF ONE'S CHOICE IN WHOLLY STATE
ELECTIONS."  481 F.2D 685, 700 - 701 (1973).  WE GRANTED CERTIORARI TO
CONSIDER THIS QUESTION.  414 U.S. 1091 (1973).  IT NOW APPEARS,
HOWEVER, THAT THE OUT-OF-COURT STATEMENTS AT ISSUE WERE ADMISSIBLE
UNDER BASIC PRINCIPLES OF THE LAW OF EVIDENCE AND CONSPIRACY,
REGARDLESS OF WHETHER OR NOT 241 ENCOMPASSES CONSPIRACIES TO CAST
FRAUDULENT VOTES IN STATE AND LOCAL ELECTIONS.  ACCORDINGLY WE AFFIRM
THE JUDGMENT OF THE COURT OF APPEALS WITHOUT PASSING ON ITS
INTERPRETATION OF 241. 

        I 

THE UNDERLYING FACTS ARE NOT IN DISPUTE.  ON MAY 12, 1970, A PRIMARY
ELECTION WAS HELD IN WEST VIRGINIA FOR THE PURPOSE OF NOMINATING
CANDIDATES FOR THE UNITED STATES SENATE, UNITED STATES HOUSE OF
REPRESENTATIVES, AND VARIOUS STATE AND LOCAL OFFICES.  ONE OF THE
NOMINATIONS MOST ACTIVELY CONTESTED IN LOGAN COUNTY WAS THE DEMOCRATIC
NOMINATION FOR COUNTY COMMISSIONER, AN OFFICE VESTED WITH A WIDE
VARIETY OF LEGISLATIVE, EXECUTIVE, AND JUDICIAL POWERS.  /1/  AMONG THE
SEVERAL CANDIDATES FOR THE DEMOCRATIC NOMINATION FOR THIS OFFICE WERE
THE INCUMBENT, OKEY HAGER, AND HIS MAJOR OPPONENT, NEAL SCAGGS. 

PETITIONERS ARE STATE OR COUNTY OFFICIALS, INCLUDING THE CLERK OF
THE LOGAN COUNTY COURT, THE CLERK OF THE COUNTY CIRCUIT COURT, THE
SHERIFF AND DEPUTY SHERIFF OF THE COUNTY, AND A STATE SENATOR.  THE
EVIDENCE AT TRIAL SHOWED THAT BY USING THE POWER OF THEIR OFFICE, THE
PETITIONERS CONVINCED THREE ELECTION OFFICIALS IN CHARGE OF THE MOUNT
GAY PRECINCT IN LOGAN COUNTY TO CAST FALSE AND FICTITIOUS VOTES ON THE
VOTING MACHINES AND THEN TO DESTROY POLL SLIPS SO THAT THE NUMBER OF
PERSONS WHO HAD ACTUALLY VOTED COULD NOT BE DETERMINED EXCEPT FROM THE
MACHINE TALLY.  /2/  WHILE IT IS APPARENT FROM THE RECORD THAT THE
PRIMARY PURPOSE BEHIND THE CASTING OF FALSE VOTES WAS TO SECURE THE
NOMINATION OF HAGER FOR THE OFFICE OF COUNTY COMMISSIONER, IT IS
EQUALLY CLEAR THAT ABOUT 100 FALSE VOTES WERE IN FACT CAST ONLY FOR
HAGER, BUT ALSO FOR SENATOR ROBERT BYRD AND REPRESENTATIVE KEN HECHLER,
WHO APPEARED ON THE BALLOT FOR RENOMINATION TO THEIR RESPECTIVE
CHAMBERS OF THE UNITED STATES CONGRESS, AS WELL AS FOR OTHER STATE AND
LOCAL CANDIDATES CONSIDERED PART OF THE HAGER SLATE.  /3/ 

THE CONSPIRACY ACHIEVED ITS PRIMARY OBJECTIVE, THE COUNTYWIDE VOTE
TOTALS SHOWING HAGER THE WINNER BY 21 VOTES, COUNTING THE MOUNT GAY
PRECINCT RETURNS.  ABOUT TWO WEEKS AFTER THE ELECTION, ON MAY 27, 1970,
THE ELECTION RESULTS WERE CERTIFIED.  AFTER THAT DATE, SCAGGS FILED AN
ELECTION CONTEST /4/  CHALLENGING CERTAIN RETURNS, INCLUDING THE MOUNT
GAY COMMISSIONER VOTES.  NO CHALLENGE WAS MADE, HOWEVER, TO THE MOUNT
GAY VOTES FOR EITHER OF THE FEDERAL OFFICES, AND THEY BECAME FINAL ON
MAY 27. 

A HEARING WAS HELD IN THE COUNTY COURT ON THE ELECTION CONTEST AT
WHICH PETITIONERS EARL TOMBLIN AND JOHN R. BROWNING GAVE SWORN
TESTIMONY.  THE PROSECUTION IN THE 241 TRIAL SOUGHT TO PROVE THAT
TOMBLIN AND BROWNING PERJURED THEMSELVES AT THE ELECTION CONTEST
HEARING IN A CONTINUING EFFORT TO HAVE THE FRAUDULENT VOTES FOR HAGER
COUNTED AND CERTIFIED.  FOR EXAMPLE, ONE OF THE KEY ISSUES IN THE
ELECTION CONTEST WAS WHETHER SUFFICIENT VOTERS HAD IN FACT TURNED OUT
IN MOUNT GAY PRECINCT TO JUSTIFY THE UNUSUALLY HIGH REPORTED RETURNS. 
TOMBLIN TESTIFIED UNDER OATH AT THE ELECTION CONTEST THAT HE HAD
VISITED MOUNT GAY PRECINCT ON ELECTION DAY AND HAD OBSERVED ONE GARRETT
SULLINS THERE AS SULLINS WENT IN TO VOTE.  THE PROSECUTION AT THE 241
TRIAL, HOWEVER, OFFERED TESTIMONY FROM SULLINS HIMSELF THAT HE WAS IN
THE HOSPITAL AND NEVER WENT TO THE MOUNT GAY PRECINCT ON ELECTION DAY. 

AT TRIAL, THE OTHER DEFENDANTS OBJECTED TO THE INTRODUCTION OF
TOMBLIN'S PRIOR TESTIMONY ON THE GROUND THAT IT WAS INADMISSIBLE
AGAINST ANYONE BUT TOMBLIN.  THE DISTRICT COURT OVERRULED THE OBJECTION
BUT INSTRUCTED THE JURY THAT TOMBLIN'S TESTIMONY COULD BE CONSIDERED
ONLY AS BEARING UPON HIS GUILT OR INNOCENCE, UNLESS THE JURY SHOULD
DETERMINE THAT AT THE TIME TOMBLIN GAVE THIS TESTIMONY, A CONSPIRACY
EXISTED BETWEEN HIM AND THE OTHER DEFENDANTS AND THAT THE TESTIMONY WAS
MADE IN FURTHERANCE OF THE CONSPIRACY, IN WHICH CASE THE JURY COULD
CONSIDER THE TESTIMONY AS BEARING UPON GUILT OR INNOCENCE OF THE OTHER
DEFENDANTS.  A SIMILAR OBJECTION WAS MADE TO INTRODUCTION OF BROWNING'S
ELECTION CONTEST TESTIMONY AND A SIMILAR CAUTIONARY INSTRUCTION GIVEN
WHEN THAT OBJECTION WAS OVERRULED. 

IN ORAL ARGUMENT BEFORE THE COURT OF APPEALS, PETITIONERS FOR THE
FIRST TIME /5/  SOUGHT TO LINK THEIR OBJECTION TO THE INTRODUCTION OF
THIS EVIDENCE TO A PARTICULAR INTERPRETATION OF 241.  SEE 481 F.2D, AT
694.  SPECIFICALLY, PETITIONERS ARGUED THAT 241 WAS LIMITED TO
CONSPIRACIES TO CAST FALSE VOTES IN FEDERAL RATHER THAN LOCAL
ELECTIONS.  ACCORDINGLY, THEY CONTENDED THAT THE CONSPIRACY IN THE
PRESENT CASE, SO FAR AS FEDERAL JURISDICTION WAS CONCERNED, ENDED ON
MAY 27, 1970, THE DATE ON WHICH THE ELECTION RETURNS WERE CERTIFIED AND
THE FEDERAL RETURNS BECAME FINAL.  STATEMENTS MADE AFTER THIS DATE BY
ONE ALLEGED CONSPIRATOR, THE ARGUMENT CONTINUED, COULD NOT, AS A MATTER
OF LAW, HAVE BEEN MADE IN FURTHERANCE OF THE CONSPIRACY CHARGED UNDER
241 AND THEREFORE SHOULD NOT HAVE BEEN CONSIDERED BY THE JURY IN
DETERMINING THE GUILT OR INNOCENCE OF THE OTHER DEFENDANTS. 

THE GOVERNMENT COUNTERED BEFORE THE COURT OF APPEALS THAT, WHETHER
THE FEDERAL CONSPIRACY HAD ENDED OR NOT, THE ELECTION CONTEST TESTIMONY
OF TOMBLIN AND BROWNING WAS ADMISSIBLE UNDER THE PRINCIPLES ENUNCIATED
IN LUTWAK V. UNITED STATES, 344 U.S. 604 (1953).  THE COURT OF APPEALS,
HOWEVER, DECIDED NOT TO TARRY OVER THIS POINT AND INSTEAD, IN ITS OWN
WORDS, CHOSE "TO MEET DIRECTLY THE CONTENTION THAT FEDERAL JURISDICTION
OVER THE ALLEGED CONSPIRACY ENDED WITH THE CERTIFICATION IN THE FEDERAL
ELECTION CONTESTS . . . ."  SEE 481 F.2D, AT 698.  WE THINK IT
ADVISABLE, HOWEVER, TO REACH OUT IN THIS FASHION TO PASS ON IMPORTANT
QUESTIONS OF STATUTORY CONSTRUCTION WHEN SIMPLER, AND MORE SETTLED,
GROUNDS ARE AVAILABLE FOR DECIDING THE CASE AT HAND.  IN OUR VIEW, THE
BASIC PRINCIPLES OF EVIDENCE AND CONSPIRACEY LAW SET DOWN IN LUTWAK ARE
DISPOSITIVE OF PETITIONERS'  EVIDENTIARY CLAIMS. 

THE DOCTRINE THAT DECLARATIONS OF ONE CONSPIRATOR MAY BE USED
AGAINST ANOTHER CONSPIRATOR, IF THE DECLARATION WAS MADE DURING THE
COURSE OF AND IN FURTHERANCE OF THE CONSPIRACY CHARGED, IS A WELL
RECOGNIZED EXCEPTION TO THE HEARSAY RULE WHICH WOULD OTHERWISE BAR THE
INTRODUCTION OF SUCH OUT-OF-COURT DECLARATIONS.  SEE LUTWAK V. UNITED
STATES, SUPRA, AT 617.  SEE ALSO KRULEWITCH V. UNITED STATES, 336 U.S.
440 (1949).  THE HEARSAY-CONSPIRACY EXCEPTION APPLIES ONLY TO
DECLARATIONS MADE WHILE THE CONSPIRACY CHARGED WAS STILL IN PROGRESS, A
LIMITATION THAT THIS COURT HAS "SCRUPULOUSLY OBSERVED."  /6/  SEE
KRULEWITCH V. UNITED STATES, SUPRA, AT 443 - 444.  SEE ALSO LUTWAK V.
UNITED STATES, SUPRA, AT 617 - 618; FISWICK V. UNITED STATES, 329 U.S.
211, 217 (1946); WONG SUN V. UNITED STATES, 371 U.S. 471, 490 (1963). 

BUT, AS THE COURT EMPHASIZED IN LUTWAK, THE REQUIREMENT THAT OUT-OF
COURT DECLARATIONS BY A CONSPIRATOR BE SHOWN TO HAVE BEEN MADE WHILE
THE CONSPIRACY CHARGED WAS STILL IN PROGRESS AND IN FURTHERANCE THEREOF
ARISES ONLY BECAUSE THE DECLARATION WOULD OTHERWISE BE HEARSAY.  THE
ONGOING CONSPIRACY REQUIREMENT IS THEREFORE INAPPLICABLE TO EVIDENCE,
SUCH AS THAT OF ACTS OF ALLEGED CONSPIRATORS, WHICH WOULD NOT OTHERWISE
BE HEARSAY.  THUS THE COURT CONCLUDED IN LUTWAK THAT ACTS OF ONE
ALLEGED CONSPIRATOR COULD BE ADMITTED INTO EVIDENCE AGAINST THE OTHER
CONSPIRATORS, IF RELEVANT TO PROVE THE EXISTENCE OF THE CONSPIRACY,
"EVEN THOUGH THEY MIGHT HAVE OCCURRED AFTER THE CONSPIRACY ENDED."  344
U.S., AT 618.  SEE ALSO UNITED STATES V. CHASE, 372 F.2D 453 (CA4
1967); NOTE, DEVELOPMENTS IN THE LAW--CRIMINAL CONSPIRACY, 72 HARV.
L.REV.  920, 988 (1959). 

THE OBVIOUS QUESTION THAT ARISES IN THE PRESENT CASE, THEN, IS
WHETHER THE OUT-OF-COURT STATEMENTS OF TOMBLIN AND BROWNING WERE
HEARSAY.  WE THINK IT PLAIN THEY WERE NOT.  OUT-OF-COURT STATEMENTS
CONSTITUTE HEARSAY ONLY WHEN OFFERED IN EVIDENCE TO PROVE THE TRUTH OF
THE MATTER ASSERTED.  /7/  THE ELECTION CONTEST TESTIMONY OF TOMBLIN
AND BROWNING, HOWEVER, WAS NOT ADMITTED INTO EVIDENCE IN THE 241 TRIAL
TO PROVE THE TRUTH OF ANYTHING ASSERTED THEREIN.  QUITE THE CONTRARY,
THE POINT OF THE PROSECUTOR'S INTRODUCING THOSE STATEMENTS WERE MADE
/8/  SO AS TO ESTABLISH A FOUNDATION FOR LATER SHOWING THROUGH OTHER
ADMISSIBLE EVIDENCE, THAT THEY WERE FALSE.  /9/  THE RATIONALE OF THE
HEARSAY RULE IS INAPPLICABLE AS WELL.  THE PRIMARY JUSTIFICATION FOR
THE EXCLUSION OF HEARSAY IS THE LACK OF ANY OPPORTUNITY FOR THE
ADVERSARY TO CROSS-EXAMINE THE ABSENT DECLARANT WHOSE OUT-OF-COURT
STATEMENT IS INTRODUCED INTO EVIDENCE.  /10/  HERE, SINCE THE
PROSECUTION WAS NOT CONTENDING THAT ANYTHING TOMBLIN OR BROWNING SAID
AT THE ELECTION CONTEST WAS TRUE, THE OTHER DEFENDANTS HAD NO INTEREST
IN CROSS-EXAMINING THEM SO AS TO PUT THEIR CREDIBILITY IN ISSUE.  /11/
CF. POINTER V. TEXAS, 380 U.S. 400 (1965); BARBER V. PAGE, 390 U.S. 719
(1968); BRUTON V. UNITED STATES, 391 U.S. 123 (1968). 

SINCE THESE PRIOR STATEMENTS WERE NOT HEARSAY, THE JURY DID NOT HAVE
TO MAKE A PRELIMINARY FINDING THAT THE CONSPIRACY CHARGED UNDER 241 WAS
STILL IN PROGRESS BEFORE IT COULD CONSIDER THEM AS EVIDENCE AGAINST THE
OTHER DEFENDANTS.  THE PRIOR TESTIMONY WAS ACCORDINGLY ADMISSIBLE
SIMPLY IF RELEVANT IN SOME WAY TO PROVE THE CONSPIRACY CHARGED.  SEE
LUTWAK V. UNITED STATES, 344 U.S., AT 617. 

AS WE READ THE RECORD, THERE CAN BE NO DOUBT THAT THE EVIDENCE OF
PERJURY BY PETITIONERS TOMBLIN AND BROWNING IN THE ELECTION CONTEST WAS
RELEVANT TO MAKE OUT THE GOVERNMENT'S CASE UNDER 241, EVEN ASSUMING,
ARGUENDO, THAT THE PETITIONERS' CONSPIRACY ENDED, FOR PURPOSES OF
FEDERAL JURISDICTION, ON MAY 27, 1970, WITH THE CERTIFICATION OF THE
FEDERAL ELECTION RETURNS.  FOR EVEN IF FEDERAL JURISDICTION RESTED ONLY
ON THAT ASPECT OF THE CONSPIRACY INVOLVING THE FEDERAL CANDIDATES, THE
PROOF AT TRIAL NEED NOT HAVE BEEN SO LIMITED.  THE PROSECUTION WAS
ENTITLED TO PROVE THE UNDERLYING PURPOSE AND MOTIVE OF THE CONSPIRATORS
IN ORDER TO CONVINCE THE JURY, BEYOND A REASONABLE DOUBT, THAT
PETITIONERS HAD IN FACT UNLAWFULLY CONSPIRED TO CAST FALSE VOTES IN THE
ELECTION.  SEE LUTWAK V. UNITED STATES, SUPRA, AT 617.  AS IT WAS NEVER
SUGGESTED THAT EITHER SENATOR BYRD OR REPRESENTATIVE HECHLER NEEDED OR
SOUGHT THE ASSISTANCE OF AN UNLAWFUL CONSPIRACY IN ORDER TO WIN HIS
RESPECTIVE NOMINATION, A KEY ISSUE IN THIS PROSECUTION, ACCEPTING FOR
THE SAKE OF ARGUMENT PETITIONERS' VIEW OF 241, WAS WHETHER AND WHY
PETITIONERS CONSPIRED TO HAVE FALSE VOTES CASE FOR THESE FEDERAL
CANDIDATES.  THE FACT THAT TWO OF THE PETITIONERS PERJURED THEMSELVES
AT AN ELECTION CONTEST IN WHICH THE MOUNT LOGAN VOTES FOR HAGER WERE AT
STAKE HELPED PROVE THE UNDERLYING MOTIVE OF THE CONSPIRACY, BY
DEMONSTRATING THAT THE FALSE VOTES FOR FEDERAL OFFICERS WERE NOT AN END
IN THEMSELVES, BUT RATHER PART OF A CONSPIRACY TO OBTAIN HAGER'S
NOMINATION THROUGH UNLAWFUL MEANS.  THE JURY COULD HAVE INFERRED THAT
THE PETITIONERS WERE MOTIVATED IN CASTING FALSE FEDERAL BALLOTS BY THE
NEED TO CONCEAL THE FRAUDULENT VOTES FOR HAGER, SINCE THE CASTING OF
LARGE NUMBERS OF FALSE BALLOTS FOR COUNTY COMMISSIONER WOULD LIKELY
HAVE AROUSED SUSPICION IN THE ABSENCE OF THE CASTING OF A SIMILAR
NUMBER OF FALSE VOTES FOR THE OTHER OFFICES AT ISSUE IN THE ELECTION. 

EVEN IF THE FEDERAL CONSPIRACY ENDED ON MAY 27, THEN, THE TOMBLIN
AND BROWNING ELECTION CONTEST TESTIMONY WAS RELEVANT TO PROVE THE
OFFENSE CHARGED.  ACCORDINGLY, IN ORDER TO RULE ON PETITIONERS'
CHALLENGE TO THE ADMISSIBILITY OF THIS EVIDENCE, THERE WAS NO NEED FOR
THE COURT OF APPEALS, AND THERE IS NO NEED FOR US, TO DECIDE WHETHER
PETITIONERS' CONSPIRACY ENDED ON MAY 27 FOR PURPOSES OF FEDERAL
JURISDICTION OR WHETHER 241 APPLIES TO CONSPIRACIES TO CAST FRAUDULENT
VOTES IN LOCAL ELECTIONS.              II 

PETITIONERS ARGUE, HOWEVER, THAT THE EVIDENCE AT TRIAL WAS
INSUFFICIENT TO SHOW THAT THEY HAD ENGAGED IN A CONSPIRACY TO CAST
FALSE VOTES FOR THE FEDERAL OFFICERS AND THAT THEIR CONVICTIONS UNDER
241 CAN STAND ONLY IF WE HOLD THAT SECTION APPLICABLE TO A CONSPIRACY
TO CAST FALSE VOTES IN A LOCAL ELECTION.  /12/  OUR EXAMINATION OF THE
RECORD LEADS US TO CONCLUDE OTHERWISE. 

TWO PRINCIPLES FORM THE BACKDROP FOR OUR ANALYSIS OF THE RECORD.  IT
IS ESTABLISHED THAT SINCE THE GRAVAMEN OF THE OFFENSE UNDER 241 IS
CONSPIRACY, THE PROSECUTION MUST SHOW THAT THE OFFENDER ACTED WITH A
SPECIFIC INTENT TO INTERFERE WITH THE FEDERAL RIGHTS IN QUESTION.  SEE
UNITED STATES V. GUEST, 383 U.S. 745, 753 - 754 (1966); SCREWS V.
UNITED STATES, 325 U.S. 91 (1945).  MOREOVER, WE SCRUTINIZE THE RECORD
FOR EVIDENCE OF SUCH INTENT WITH SPECIAL CARE IN A CONSPIRACY CASE FOR,
AS WE HAVE INDICATED IN A RELATED CONTEXT, "CHARGES OF CONSPIRACY ARE
NOT TO BE MADE OUT BY PILING INFERENCE UPON INFERENCE, THUS FASHIONING
. . . A DRAGNET TO DRAW IN ALL SUBSTANTIVE CRIMES."  DIRECT SALES CO.
V. UNITED STATES, 319 U.S. 703, 711 (1943).  SEE ALSO INGRAM V. UNITED
STATES, 360 U.S. 672, 680 (1959). 

EVEN WITH THESE CAVEATS IN MIND, WE FIND THE RECORD AMPLY BEARS OUT
THE VERDICT THAT EACH OF THE PETITIONERS ENGAGED IN THE CONSPIRACY WITH
THE INTENT OF HAVING FALSE VOTES CAST FOR THE FEDERAL OFFICERS.  THE
GOVERNMENT'S CHIEF WITNESS WAS CECIL ELSWICK, AN UNINDICTED
COCONSPIRATOR WHO SERVED AS THE REPUBLICAN ELECTION OFFICER AT THE
MOUNT GAY PRECINCT AND WHO ACTUALLY CAST MOST OF THE FRAUDULENT VOTES. 
ELSWICK TESTIFIED THAT HE WAS FIRST APPROACHED BY PETITIONER RED HAGER,
THE SON OF OKEY HAGER, WHO TOLD ELSWICK TO GO ALONG WITH THEM TO WIN
THE MOUNT GAY PRECINCT OR ELSE HAGER WOULD CAUSE HIM TROUBLE.  WHEN
ASKED ON DIRECT EXAMINATION FOR WHOM HE WAS TOLD TO WIN THE PRECINCT,
ELSWICK TESTIFIED:  "FOR THE OKEY HAGER SLATE AND SENATOR BYRD AND KEN
HECHLER."  APP. 40.  WHEN ELSWICK EXPRESSED AN INTEREST IN GOING ALONG,
HAGER ARRANGED FOR A MEETING BETWEEN ELSWICK AND TOMBLIN AT WHICH
TOMBLIN CONFIRMED AN OFFER OF A PART-TIME DEPUTY SHERIFF JOB FOR
ELSWICK AS A REWARD FOR HIS HELP IN THE ELECTION FRAUD.  ELSWICK LATER
MET WITH PETITIONER W. BERNARD SMITH IN TOMBLIN'S OFFICE, AND SMITH
THEN INSTRUCTED HIM ON HOW TO PROCEED TO WIN THE ELECTION.  THE NIGHT
BEFORE THE ELECTION, ELSWICK MET WITH ALL FIVE OF THE PETITIONERS.  AT
THIS MEETING CASH PAYMENTS FOR THE FALSE VOTES WERE DISCUSSED AND
PETITIONERS SMITH AND HAGER EMPHASIZED THE NEED FOR PUTTING "ALL THE
VOTES" ON THE MACHINE.  LATER THAT EVENING, ELSWICK ACCOMPANIED TOMBLIN
TO VISIT GARRETT SULLINS, A CANDIDATE FOR JUSTICE OF THE PEACE LISTED
ON THE HAGER SLATE.  TOMBLIN TOLD SULLINS NOT TO WORRY ABOUT HIS
ELECTION BECAUSE THEY HAD HIM "SLATED," SO LONG AS SULLINS' WIFE,
ANOTHER MOUNT GAY PRECINCT ELECTION OFFICIAL, WOULD GO ALONG WITH THE
ILLEGAL VOTING. 

ELSWICK THEN TESTIFIED AS TO HOW HE ACTUALLY PUT THE FRAUDULENT
VOTES ON THE MACHINES.  WHEN A VOTER CAME INTO THE PRECINCT AND ASKED
FOR HELP IN USING THE MACHINES TO VOTE THE NEAL SCAGGS SLATE, ELSWICK
AND MRS. SULLINS WOULD JOIN THE VOTER IN THE VOTING MACHINE AND,
ALIGNING THEIR BODIES SO AS TO CONCEAL WHAT THEY WERE DOING, WOULD PUT
VOTES ON THE MACHINE FOR THE ENTIRE HAGER SLATE.  IN ADDITION, ELSWICK
SIMPLY WENT INTO THE VOTING MACHINE ON HIS OWN AND CAST MANY FICTITIOUS
BALLOTS.  THROUGH A COMPARISON BETWEEN THE REPORTED RETURNS AND THE
NUMBER OF PERSONS WHO ACTUALLY VOTED, FALSE VOTES WERE SHOWN TO HAVE
BEEN CAST FOR EVERY OFFICE--FEDERAL, STATE, AND LOCAL.  SEE N. 3,
SUPRA. 

WE THINK THIS EVIDENCE AMPLY SUPPORTED THE JURY'S CONCLUSION THAT
EACH OF THE PETITIONERS KNOWINGLY PARTICIPATED IN A CONSPIRACY WHICH
CONTEMPLATED THE CASTING OF FALSE VOTES FOR ALL OFFICES AT ISSUE IN THE
ELECTION.  THE EVIDENCE AT TRIAL TENDED TO SHOW A SINGLE CONSPIRACY,
THE PRIMARY OBJECTIVE OF WHICH WAS TO HAVE FALSE VOTES CAST FOR HAGER
BUT WHICH ALSO ENCOMPASSED THE CASTING OF FALSE VOTES FOR CANDIDATES
FOR ALL OTHER OFFICES, INCLUDING SENATOR BYRD AND REPRESENTATIVE
HECHLER.  TRUE, THERE WAS LITTLE DISCUSSION AMONG THE CONSPIRATORS OF
THE FEDERAL VOTES PER SE, JUST AS THERE WAS LITTLE DISCUSSION OF THE
HAGER VOTES IN AND OF THEMSELVES, BUT THE JURY COULD BELIEVE THIS WAS
ONLY A REFLECTION OF THE CONSPIRATORS' UNDERLYING ASSUMPTION THAT FALSE
VOTES WOULD HAVE TO BE CAST FOR ENTIRE SLATES OF CANDIDATES IN ORDER TO
HAVE THEIR FRAUD GO UNDETECTED. 

IN OUR VIEW, PETITIONERS ERR IN SEEKING TO ATTACH SIGNIFICANCE TO
THE FACT THAT THE PRIMARY MOTIVE BEHIND THEIR CONSPIRACY WAS TO AFFECT
THE RESULT IN THE LOCAL RATHER THAN THE FEDERAL ELECTION.  A SINGLE
CONSPIRACY MAY HAVE SEVERAL PURPOSES, BUT IF ONE OF THEM--WHETHER
PRIMARY OR SECONDARY--BE THE VIOLATION OF A FEDERAL LAW, THE CONSPIRACY
IS UNLAWFUL UNDER FEDERAL LAW.  SEE INGRAM V. UNITED STATES, 360 U.S.,
AT 679 - 680.  IT HAS LONG BEEN SETTLED THAT 241 EMBRACES A CONSPIRACY
TO STUFF THE BALLOT BOX AT AN ELECTION FOR FEDERAL OFFICERS, AND
THEREBY TO DILUTE THE VALUE OF VOTES OF QUALIFIED VOTERS; SEE UNITED
STATES V. SAYLOR, 322 U.S. 385 (1944).  SEE ALSO UNITED STATES V.
MOSLEY, 238 U.S. 383 (1915).  THIS APPLIES TO PRIMARY AS WELL AS
GENERAL ELECTIONS.  SEE UNITED STATES V. CLASSIC, 313 U.S. 299 (1941). 

THAT PETITIONERS MAY HAVE HAD NO PURPOSE TO CHANGE THE OUTCOME OF
THE FEDERAL ELECTION IS IRRELEVANT.  THE SPECIFIC INTENT REQUIRED UNDER
241 IS NOT THE INTENT TO CHANGE THE OUTCOME OF A FEDERAL ELECTION, BUT
RATHER THE INTENT TO HAVE FALSE VOTERS IN A FEDERAL ELECTION TO EXPRESS
THEIR CHOICE OF A CANDIDATE AND TO HAVE THEIR EXPRESSIONS OF CHOICE
GIVEN FULL VALUE AND EFFECT, WITHOUT BEING DILUTED OR DISTORTED BY THE
CASTING OF FRAUDULENT BALLOTS.  SEE UNITED STATES V. SAYLOR, SUPRA, AT
386.  AS ONE COURT HAS STATED:

  THE DEPOSIT OF FORGED BALLOTS IN THE BALLOT BOXES, NO MATTER HOW
SMALL OR HOW GREAT THEIR

  NUMBER, DILUTES THE INFLUENCE OF HONEST VOTES IN AN ELECTION, AND
WHETHER IN GREATER OR LESS

  DEGREE IS IMMATERIAL.  THE RIGHT TO AN HONEST (COUNT) IS A RIGHT
POSSESSED BY EACH VOTING

  ELECTOR, AND TO THE EXTENT THAT THE IMPORTANCE OF HIS VOTE IS
NULLIFIED, WHOLLY OR IN PART, HE

  HAS BEEN INJURED IN THE FREE EXERCISE OF A RIGHT OR PRIVILEGE
SECURED TO HIM BY THE LAWS AND

CONSTITUTION OF THE UNITED STATES."  PRICHARD V. UNITED STATES, 181
F.2D 326, 331 (CA6), AFF'D

  DUE TO ABSENCE OF QUORUM, 339 U.S. 974 (1950). 

EVERY VOTER IN A FEDERAL PRIMARY ELECTION, WHETHER HE VOTES FOR A
CANDIDATE WITH LITTLE CHANCE OF WINNING OR FOR ONE WITH LITTLE CHANCE
OF LOSING, HAS A RIGHT UNDER THE CONSTITUTION TO HAVE HIS VOTE FAIRLY
COUNTED, WITHOUT ITS BEING DISTORTED BY FRAUDULENTLY CAST VOTES.  AND,
WHATEVER THEIR MOTIVE, THOSE WHO CONSPIRE TO CAST FALSE VOTES IN AN
ELECTION FOR FEDERAL OFFICE CONSPIRE TO INJURE THAT RIGHT WITHIN THE
MEANING OF 241.  /13/ 

WHILE THE DISTRICT COURT'S JURY INSTRUCTIONS DID NOT SPECIFICALLY
FOCUS UPON THE CONSPIRACY TO CAST FALSE VOTES FOR CANDIDATES FOR
FEDERAL OFFICES, NO OBJECTION WAS MADE AT TRIAL OR BEFORE THE COURT OF
APPEALS WITH RESPECT TO THIS ASPECT OF THE INSTRUCTIONS.  SEE JOHNSON
V. UNITED STATES, 318 U.S. 189, 200 (1943); ADICKES V. S. H. KRESS &
CO., 398 U.S. 144, 147 N. 2 (1970).  AND, EVEN ASSUMING, ARGUENDO, THAT
241 IS LIMITED TO CONSPIRACIES TO CAST FALSE VOTES FOR CANDIDATES FOR
FEDERAL OFFICES, WE COULD FIND NO PLAIN ERROR HERE.  THE PROSECUTION'S
CASE, AS INDICATED EARLIER, SHOWED A SINGLE CONSPIRACY TO CAST ENTIRE
SLATES OF FALSE VOTES.  THE DEFENSE CONSISTED IN LARGE PART OF A
CHALLENGE TO THE CREDIBILITY OF THE GOVERNMENT'S WITNESSES, PRIMARILY
THE THREE UNINDICTED COCONSPIRATORS.  THE CASE THEREFORE ULTIMATELY
HINGED ON WHETHER THE JURY WOULD BELIEVE OR DISBELIEVE THEIR
TESTIMONY.  GIVEN THE RECORD, WE THINK IT INCONCEIVABLE THAT, EVEN IF
CHARGED BY MORE SPECIFIC INSTRUCTIONS, THE JURY COULD HAVE FOUND A
CONSPIRACY TO CAST FALSE VOTES FOR LOCAL OFFICES WITHOUT FINDING A
CONSPIRACY TO CAST FALSE VOTES FOR THE FEDERAL OFFICES AS WELL. 

THIS CASE IS THEREFORE AN INAPPROPRIATE VEHICLE FOR US TO DECIDE
WHETHER A CONSPIRACY TO CAST FALSE VOTES FOR CANDIDATES FOR STATE OR
LOCAL OFFICE, AS OPPOSED TO CANDIDATES FOR FEDERAL OFFICE, IS UNLAWFUL
UNDER 241, AND WE INTIMATE NO VIEWS ON THAT QUESTION. 

              AFFIRMED. 

/1/  THE COUNTY COMMISSIONER SITS ON THE COUNTY COURT WHICH IS THE
CENTRAL GOVERNMENTAL BODY IN THE COUNTY.  SEE STATE EX REL.  DINGESS V.
SCAGGS,--W. VA.--,--, 195 S.E. 2D 724, 726 (1973).  SEE W. VA. CODE
ANN., 7 - 1 - 3 ET SEQ. (1969). 

/2/  THE PARTICIPATION OF THE ELECTION OFFICIALS WAS SECURED BY
THREATS OF INDICTMENT OR ARREST, OR PROMISES OF COUNTY JOBS AND MONEY. 

/3/  OF THE 541 PERSONS ELIGIBLE TO VOTE AT THE MOUNT GAY PRECINCT,
THE GOVERNMENT PROVED THAT 222 DID NOT VOTE AND THAT 13 MORE WERE
EITHER DEAD, IN THE HOSPITAL, OR IN PRISON.  THIS LEFT A MAXIMUM OF 306
WHO COULD HAVE VOTED.  OBSERVERS AT THE PRECINCT THROUGHOUT ELECTION
DAY ESTIMATED THAT ABOUT 275 PERSONS HAD ACTUALLY VOTED.  NEVERTHELESS
348 VOTES WERE RECORDED AS CAST FOR CANDIDATES FOR THE NOMINEES FOR
UNITED STATES SENATOR, 328 FOR CONGRESSMAN, 358 FOR STATE SENATOR, 458
FOR HOUSE OF DELEGATES, 375 FOR COUNTY COMMISSIONER (LONG TERM), 365
FOR COUNTY COMMISSIONER (SHORT TERM), 371 FOR JUSTICE OF THE PEACE, AND
371 FOR CONSTABLE. 

/4/  THE ELECTION CONTEST, AT WHICH CANDIDATE HAGER WAS ONE OF THE TWO
PRESIDING JUDGES, WAS CONCLUDED ON AUGUST 25, 1970.  ALTHOUGH THE COURT
WAS REQUIRED BY STATUTE TO RULE ON THE CONTEST BY SEPTEMBER 17, 1970,
SEE W. VA. CODE ANN., 3 - 7 - 7, IT FAILED TO ENTER A FINAL ORDER
WITHIN THE STATUTORY PERIOD.  SCAGGS APPEALED TO AN INTERMEDIATE
APPELLATE COURT, WHICH GRANTED AN APPEAL.  THE SUPREME COURT OF APPEALS
OF WEST VIRGINIA, HOWEVER, RULED THAT THE INTERMEDIATE APPELLATE COURT
LACKED JURISDICTION SINCE NO DECISION HAD BEEN RENDERED BY THE COUNTY
COURT WITHIN THE STATUTORY TIME ALLOWED.  SEE STATE EX REL. HAGER V.
OAKLEY, 154 W. VA. 528, 177 S.E. 2D 585 (1970). 

/5/  OTHER GROUNDS FOR EXCLUSION ARGUED BEFORE THE DISTRICT COURT
AND IN THE BRIEFS BEFORE THE COURT OF APPEALS HAVE NOT BEEN PURSUED
HERE.  THESE INCLUDE A CONTENTION THAT INTRODUCTION OF THE PRIOR
TESTIMONY HAD THE EFFECT OF PUTTING TOMBLIN AND BROWNING ON THE WITNESS
STAND IN VIOLATION OF THEIR CONSTITUTIONAL RIGHT TO STAND MUTE, A
SUGGESTION THAT SINCE THE TESTIMONY WAS GIVEN IN A JUDICIAL HEARING
THERE MIGHT BE MIRANDA PROBLEMS, AND THE ARGUMENT THAT THE PRIOR
TESTIMONY OF TOMBLIN AND BROWNING WAS INADMISSIBLE IMPEACHMENT EVIDENCE
SINCE BOTH HAD EXERCISED THEIR CONSTITUTIONAL RIGHT NOT TO TESTIFY. 
SEE 481 F.2D 685, 694. 

THE COURT OF APPEALS RECOGNIZED THAT IT NEED NOT ORDINARILY CONSIDER
GROUNDS OF OBJECTION NOT PRESENTED TO THE TRIAL COURT.  SEE HORMEL V.
HELVERING, 312 U.S. 552, 556 (1941).  THIS RULE IS NOT WITHOUT ITS
EXCEPTIONS, HOWEVER, PARTICULARLY IN CRIMINAL CASES WHERE APPELLATE
COURTS CAN NOTICE ERRORS SERIOUSLY AFFECTING THE FAIRNESS OR INTEGRITY
OF JUDICIAL PROCEEDINGS.  SEE UNITED STATES V. ATKINSON, 297 U.S. 157,
160 (1936).  SEE ALSO HORMEL V. HELVERING, SUPRA, AT 557.  IN VIEW OF
THE FACT THAT PETITIONERS DID CHALLENGE THE ADMISSIBILITY OF THE
TOMBLIN AND BROWNING TESTIMONY AT TRIAL, WE THINK IT WAS PROPER FOR THE
COURT OF APPEALS TO CONSIDER ALL GROUNDS RELATED TO THAT UNDERLYING
OBJECTION. 

/6/  THE RATIONALE FOR BOTH THE CONSPIRACY-HEARSAY EXCEPTION AND ITS
LIMITATIONS IS THE NATION THAT CONSPIRATORS ARE PARTNERS IN CRIME. 
UNITED STATES V. SOCONY- VACUUM OIL CO., 310 U.S. 150, 253 (1940);
FISWICK V. UNITED STATES, 329 U.S. 211, 216 (1946).  AS SUCH, THE LAW
DEEMS THEM AGENTS OF ONE ANOTHER.  AND JUST AS THE DECLARATIONS OF AN
AGENT BIND THE PRINCIPAL ONLY WHEN THE AGENT ACTS WITHIN THE SCOPE OF
HIS AUTHORITY, SO THE DECLARATION OF A CONSPIRATOR MUST BE MADE IN
FURTHERANCE OF THE CONSPIRACY CHARGED IN ORDER TO BE ADMISSIBLE AGAINST
HIS PARTNER.  SEE KISWICK V. UNITED STATES, 336 U.S. 440, 442 - 443
(1949); FISWICK V. UNITED STATES, SUPRA, AT 217; WONG SUN V. UNITED
STATES, 371 U.S. 471, 490 (1963).  SEE GENERALLY 4 J. WIGMORE, EVIDENCE
1077 - 1079 (CHADBOURNE REV. 1972). 

/7/  SEE 5 J. WIGMORE, EVIDENCE 1361 (3D ED. 1940); C. MCCORMICK,
LAW OF EVIDENCE 460 (1954). 

/8/  OF COURSE, EVIDENCE IS NOT HEARSAY WHEN IT IS USED ONLY TO
PROVE THAT A PRIOR STATEMENT WAS MADE AND NOT TO PROVE THE TRUTH OF THE
STATEMENT.  SEE DUTTON V. EVANS, 400 U.S. 74, 88 (1970) (OPINION OF
STEWART, J.).  SEE ALSO CREAGHE V. IOWA HOME MUT. CAS. CO., 323 F.2D
981 (CA10 1963); GENERAL TIRE OF MIAMI BEACH, INC. V. NLRB, 332 F.2D 58
(CA5 1964); SAFEWAY STORES, INC. V. COMBS, 273 F.2D 295 (CA5 1960);
FORD MOTOR CO. V. WEBSTER'S AUTO SALES, INC., 361 F.2D 874 (CA1 1966). 

/9/  THUS, IN HIS OPENING ARGUMENT THE PROSECUTOR SAID:  "I BELIEVE
THE EVIDENCE WILL SHOW, FRANKLY, THAT THAT ELECTION CONTEST WAS FULL OF
PERJURIOUS TESTIMONY, FULL OF LIES.  SOME OF IT, THE EVIDENCE WILL
SHOW, WAS SOLICITED AND CAUSED BY THESE DEFENDANTS."  APP. 22.  THE
SAME POINT WAS MADE IN CLOSING ARGUMENT.  TR. 1851 - 1852. 

/10/  SEE 5 J. WIGMORE, SUPRA, N. 7, AT 1362.  SEE ALSO COLORIFICIO
ITALIANO MAX MEYER, S.P.A. V. S/S HELLENIC WAVE, 419 F.2D 223 (CA5
1969); ROSSVILLE SALVAGE CORP. V. S.E. GRAHAM CO., 319 F.2D 783 (CA7
1963); SUPERIOR ENGRAVING CO. V. NLRB, 183 F.2D 783 (CA7 1950), CERT.
DENIED, 340 U.S. 930 (1951).     /11/  TECHNICALLY, OF COURSE, THE
PROFFERED EVIDENCE WAS HEARSAY IN THAT THE GOVERNMENT SOUGHT TO PROVE
THE PRIOR TESTIMONY OF TOMBLIN AND BROWNING BY READING A TRANSCRIPT OF
THE ELECTION CONTEST HEARING INTO EVIDENCE AT THE 241 TRIAL, RATHER
THAN BY CALLING AS A WITNESS A PERSON WHO HIMSELF HEARD THE TOMBLIN AND
BROWNING TESTIMONY.  A WELL-RECOGNIZED EXCEPTION TO THE HEARSAY RULE,
HOWEVER, PERMITS THE INTRODUCTION OF CERTIFIED COURT TRANSCRIPTS TO
PROVE THE TESTIMONY GIVEN AT A PRIOR PROCEEDING.  SEE GENERALLY 5 J.
WIGMORE, SUPRA, N. 7, AT 1681.  NOR IS THERE ANY RIGHT-OF-CONFRONTATION
PROBLEM HERE, SINCE PETITIONERS DID NOT SUGGEST BELOW THAT THE
TRANSCRIPT READ AT THE 241 TRIAL DID NOT ACCURATELY REFLECT THE
TESTIMONY ACTUALLY GIVEN AT THE ELECTION CONTEST HEARING. 

/12/  IN BRIEFING THIS CASE, ALL PARTIES APPEAR TO HAVE ASSUMED THAT
THIS SUFFICIENCY-OF-THE-EVIDENCE CLAIM WAS PROPERLY BEFORE THIS COURT. 
IT SEEMS CLEAR, HOWEVER, THAT THIS ISSUE WAS PRESENTED NEITHER TO THE
COURT OF APPEALS NOR TO US IN THE PETITION FOR A WRIT OF CERTIORARI. 
AS INDICATED EARLIER, THE 241 QUESTION AROSE BELOW ONLY WITH RESPECT TO
THE ADMISSIBILITY OF THE PRIOR TESTIMONY OF BROWNING AND TOMBLIN, AND
NOT IN CONNECTION WITH ANY CLAIM THAT THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT A VERDICT UNDER THE STATUTE.  WE NEVERTHELESS CONSIDER THE
SUFFICIENCY-OF-THE-EVIDENCE CLAIM HERE.  WE RECOGNIZE THAT PETITIONERS
DID RAISE BEFORE BOTH THE DISTRICT COURT AND THE COURT OF APPEALS, AND
IN THE PETITION FOR A WRIT OF CERTIORARI A CLAIM THAT THE INDICTMENT
WAS UNCONSTITUTIONALLY VAGUE, AND THE GIST OF THEIR ARGUMENT ON THIS
POINT WAS THAT THE GOVERNMENT HAD CHARGED A CONSPIRACY TO CAST FALSE
VOTES FOR BOTH FEDERAL AND LOCAL CANDIDATES IN ORDER TO SURVIVE A
MOTION TO DISMISS THE INDICTMENT, BUT HAD TURNED AROUND AT TRIAL AND
PROVED ONLY A CONSPIRACY TO CAST FALSE VOTES FOR THE LOCAL CANDIDATES. 
THIS ARGUMENT THEREFORE RAISED THE SUBSTANCE OF PETITIONERS' PRESENT
CONTENTION THAT THE EVIDENCE WAS INSUFFICIENT TO SHOW A CONSPIRACY TO
CAST FALSE VOTES FOR FEDERAL CANDIDATES.  MOREOVER, AS WE HAVE HAD
OCCASION TO NOTE, A CLAIM THAT A CONVICTION IS BASED ON A RECORD
LACKING ANY EVIDENCE RELEVANT TO CRUCIAL ELEMENTS OF THE OFFENSE IS A
CLAIM WITH SERIOUS CONSTITUTIONAL OVERTONES.  SEE, E.G., THOMPSON V.
LOUISVILLE, 362 U.S. 199 (1960); JOHNSON V. FLORIDA, 391 U.S. 596
(1968).  SEE ALSO ADDERLEY V. FLORIDA, 385 U.S. 39, 44 (1966). 
ACCORDINGLY, EVEN THOUGH THE SUFFICIENCY-OF-THE-EVIDENCE ISSUE WAS NOT
RAISED BELOW WITH ANY PARTICULARITY, WE THINK THE INTERESTS OF JUSTICE
REQUIRE ITS CONSIDERATION HERE.  SEE SCREWS V. UNITED STATES, 325 U.S.
91, 107 (1945) (OPINION OF DOUGLAS, J.).  CF. LAWN V. UNITED STATES,
355 U.S. 339, 362 N. 16 (1958). 

/13/  WE ALSO FIND NO MERIT IN PETITIONERS' CONTENTION THAT THE
INDICTMENT WAS UNCONSTITUTIONALLY VAGUE.  THE INDICTMENT STATES THAT ON
MAY 12, 1970, A PRIMARY ELECTION WAS HELD IN LOGAN COUNTY, WEST
VIRGINIA, FOR THE PURPOSE OF NOMINATING CANDIDATES FOR THE OFFICES OF
UNITED STATES SENATOR, REPRESENTATIVE TO CONGRESS, AND VARIOUS STATE
AND COUNTY PUBLIC OFFICES.  IT THEN CHARGES EACH OF THE DEFENDANTS WITH
CONSPIRING TO INJURE AND OPPRESS THE QUALIFIED VOTERS OF MOUNT GAY
PRECINCT IN THE FREE EXERCISE AND ENJOYMENT OF THEIR "RIGHT TO VOTE FOR
CANDIDATES FOR THE AFORESAID OFFICES AND TO HAVE SUCH VOTE CAST,
COUNTED, RECORDED, AND CERTIFIED AT THEIR FULL VALUE AND GIVEN FULL
EFFECT . . . ."  THE INDICTMENT FURTHER SPECIFIES THAT IT WAS A PART OF
THE CONSPIRACY "TO CAUSE FRAUDULENT AND FICTITIOUS VOTES TO BE CAST IN
SAID PRECINCT . . . ."  PET. FOR CERT. 3B.  WE THINK IT PLAIN THAT THE
INDICTMENT GAVE PETITIONERS, ADEQUATE NOTICE OF THE SPECIFIC CHARGES
AGAINST THEM.  WE ALSO NOTE, AND PETITIONERS THEMSELVES CONCEDE, THAT
THE FORM OF THE INDICTMENT WAS SIMILAR TO THOSE USED IN OTHER 241
PROSECUTIONS.  SEE UNITED STATES V. SAYLOR, 322 U.S. 385 (1944); UNITED
STATES V. KANTOR, 78 F.2D 710 (CA2 1935); WALKER V. UNITED STATES, 93
F.2D 383 (CA8 1937); LEDFORD V. UNITED STATES, 155 F.2D 574 (CA6),
CERT. DENIED, 329 U.S. 733 (1946). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

PETITIONERS WERE CONVICTED UNDER 18 U.S.C. 241, WHICH IMPOSES
CRIMINAL PENALTIES WHEN "TWO OR MORE PERSONS CONSPIRE TO INJURE . . .
ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE
SECURED TO HIM BY THE CONSTITUTION . . . ."  THE COURT OF APPEALS
AFFIRMED, 481 F.2D 685, AND THIS COURT GRANTED CERTIORARI TO CONSIDER
WHETHER A CONSPIRACY TO CAST FRAUDULENT VOTES IN A STATE ELECTION,
WITHOUT ANY EVIDENCE OF RACIAL DISCRIMINATION, COULD CONSTITUTE A
FEDERAL OFFENSE UNDER 241.  THE COURT OF APPEALS REACHED THE SUBSTANCE
OF THIS QUESTION, HOLDING THAT THE FEDERAL GOVERNMENT HAD THE POWER
UNDER 241 TO PUNISH NOT ONLY CONSPIRACIES TO POISON FEDERAL ELECTIONS,
BUT ALSO CONSPIRACIES IN WHICH STATE OFFICIALS TOOK PART TO CAST FALSE
VOTES IN A STATE OR LOCAL ELECTION.  481 F.2D, AT 698 - 700.  THE COURT
TODAY AVOIDS THE ISSUE SQUARELY PRESENTED BY PETITIONERS AND BY THE
DECISION OF THE COURT OF APPEALS, CONCLUDING THAT IT NEED NOT REACH THE
ISSUE BECAUSE THE EVIDENCE "BEARS OUT THE VERDICT THAT EACH OF THE
PETITIONERS ENGAGED IN THE CONSPIRACY WITH THE INTENT OF HAVING FALSE
VOTES CAST FOR . . . FEDERAL OFFICERS." 

AFTER REVIEWING THE RECORD, I AM LEFT WITH THE CONVICTION THAT THE
COURT, IN AFFIRMING ON THE THEORY THAT PETITIONERS AGREED AS A PART OF
THEIR CONSPIRACY TO HAVE FALSE VOTES CAST FOR FEDERAL CANDIDATES, IS
CONVICTING THE PETITIONERS FOR AN OFFENSE FOR WHICH THEY WERE NOT FOUND
GUILTY BY THE JURY.  THE INSTRUCTIONS TO THE JURY WERE PHRASED IN A
FASHION WHICH DID NOT REQUIRE IT TO FIND INTENT TO HAVE FALSE VOTES
CAST FOR FEDERAL CANDIDATES, SO THAT THERE IS IN TRUTH NO "VERDICT" TO
THAT EFFECT.  THE EVIDENCE OF INTENT TO HAVE FALSE VOTES CAST FOR
FEDERAL CANDIDATES IS HARDLY CONCLUSIVE, SO THAT THE FAILURE OF THE
CHARGE TO REQUIRE SUCH A FINDING COULD NOT BE DEEMED HARMLESS ERROR. 
FED. RULE CRIM. PROC. 52(A). 

BECAUSE IT IS NOT CLEAR THAT PETITIONERS INTENDED THAT FRAUDULENT
VOTES BE CAST FOR FEDERAL CANDIDATES, AND BECAUSE I BELIEVE THAT 241
DOES NOT REACH CONSPIRACIES TO ABSCOND WITH STATE ELECTIONS, ABSENT THE
ELEMENT OF RACIAL DISCRIMINATION, I DISSENT.  THE JURY INSTRUCTIONS, IN
ALLOWING THE JURY TO CONVICT WITHOUT FINDING A CONSPIRACY TO INTERFERE
WITH THE FEDERAL ELECTORAL PROCESS, WERE IMPROPER, AND THE ERROR WAS
NOT HARMLESS. 

        I 

ON MAY 12, 1970, A PRIMARY ELECTION WAS HELD IN WEST VIRGINIA FOR
THE PURPOSE OF NOMINATING CANDIDATES FOR THE UNITED STATES SENATE AND
HOUSE OF REPRESENTATIVES AND FOR VARIOUS STATE AND LOCAL OFFICES,
INCLUDING THAT OF COUNTY COMMISSIONER FOR LOGAN COUNTY.  THE INCUMBENT
COMMISSIONER, OKEY HAGER, AND HIS CHALLENGER, NEAL SCAGGS, WERE ENGAGED
IN A BITTER CONTEST FOR THE DEMOCRATIC NOMINATION FOR COMMISSIONER. 
THE PETITIONERS, INCLUDING OKEY HAGER'S SON RED HAGER, INDUCED ELECTION
OFFICIALS, INCLUDING CECIL ELSWICK, WHO LATER TESTIFIED FOR THE
GOVERNMENT AT THIS TRIAL, TO CAST FALSE VOTES FOR THE OKEY HAGER SLATE
ON THE VOTING MACHINES IN THE MOUNT GAY, WEST VIRGINIA, PRECINCT. 
THERE IS NO EVIDENCE THAT THE OKEY HAGER SLATE INCLUDED ANY NOMINEES
FOR FEDERAL OFFICES.  AS THE COURT ACKNOWLEDGES, "IT IS APPARENT FROM
THE RECORD THAT THE PRIMARY PURPOSE BEHIND THE CASTING OF FALSE VOTES
WAS TO SECURE THE NOMINATION OF HAGER FOR THE OFFICE OF COUNTY
COMMISSIONER."  THE COURT NONETHELESS FINDS THAT THE CONSPIRACY
NECESSARILY ENCOMPASSED AN AGREEMENT TO CAST FRAUDULENT BALLOTS FOR THE
FEDERAL OFFICES. 

AS THE COURT NOTES, A STRINGENT SCIENTER REQUIREMENT HAS BEEN
IMPOSED WHEN THE GOVERNMENT SEEKS TO PROSECUTE UNDER 241, REQUIRING
PROOF OF "SPECIFIC INTENT" ON THE PART OF A CONSPIRATOR TO INTERFERE
WITH A RIGHT PROTECTED BY 241.  /1/  THIS STANDARD HAS REQUIRED PROOF
THAT A CONSPIRATOR ACTED "IN OPEN DEFIANCE OR IN RECKLESS DISREGARD OF
A CONSTITUTIONAL REQUIREMENT WHICH HAS BEEN MADE SPECIFIC AND
DEFINITE,"  /2/  IN THIS CASE, THE RIGHT TO HAVE VOTES CAST IN A
FEDERAL ELECTION COUNTED WITHOUT IMPAIRMENT BY FRAUDULENT VOTES.  IT IS
AGAINST THIS EXACTING STANDARD OF SPECIFIC INTENT THAT THE ACTIONS OF
EACH OF THE CONSPIRATORS IN THIS CASE MUST BE MEASURED. 

FROM THE FIRST, THE PROSECUTION IN THIS CASE PROCEEDED ON THE THEORY
THAT CASTING FALSE VOTES FOR STATE OFFICES WOULD CONSTITUTE A VIOLATION
OF 241.  THE INDICTMENT CHARGED THAT ON MAY 12, 1970, AN ELECTION WAS
HELD AT MOUNT GAY TO NOMINATE CANDIDATES FOR THE OFFICES OF UNITED
STATES SENATOR, REPRESENTATIVE TO CONGRESS, AND VARIOUS STATE AND
COUNTY POSITIONS.  IT WAS CHARGED THAT THE PETITIONERS WILLFULLY AND
KNOWINGLY CONSPIRED TO INJURE VOTERS IN THE EXERCISE OF THEIR
CONSTITUTIONAL RIGHTS BY IMPAIRING THEIR RIGHT TO VOTE FOR CANDIDATES
"FOR THE AFORESAID OFFICES" AND TO HAVE SUCH VOTES CAST AND CERTIFIED
AT THEIR FULL VALUE.  THUS THE INDICTMENT CHARGED A CONSPIRACY IN
VIOLATION OF 241 WITHOUT DISTINCTION BETWEEN STATE AND FEDERAL
OFFICES.  EFFORTS ON THE PART OF THE PETITIONERS TO CLARIFY THE CHARGES
AGAINST THEM WERE FUTILE.  THE TRIAL JUDGE DENIED A MOTION TO DISMISS,
WHICH ARGUED THAT THE INDICTMENT FAILED TO ADEQUATELY PARTICULARIZE THE
ALLEGED CRIMINAL VIOLATION.  THE PETITIONERS ALSO FILED A MOTION FOR A
BILL OF PARTICULARS WHICH REQUESTED AN ELUCIDATION OF THE SPECIFIC ACTS
WHICH FORMED THE BASIS OF THE INDICTMENT.  THIS MOTION WAS ALSO DENIED,
AND THE CASE PROCEEDED TO TRIAL WITH AN INDICTMENT CHARGING, AS A
FEDERAL CRIME, CONSPIRACY TO IMPAIR VOTES FOR NOT ONLY FEDERAL, BUT
ALSO STATE OFFICES. 

THE CASE WAS TRIED ON THE THEORY THAT PETITIONERS CONSPIRED TO
SECURE THE NOMINATION OF OKEY HAGER FOR COUNTY COMMISSIONER.  THERE WAS
SUBSTANTIAL EVIDENCE ON THE RECORD TO DEMONSTRATE THE EXISTENCE OF THIS
CONSPIRACY, AND PETITIONERS NECESSARILY CONTEMPLATED HAVING FALSE VOTES
CAST IN THE LOCAL ELECTION TO SECURE OKEY HAGER'S NOMINATION.  THERE
WAS ALSO EVIDENCE THAT CECIL ELSWICK AND OTHERS WHO WERE AT THE POLLING
PLACE DURING THE ELECTION DID IN FACT CAST FALSE VOTES FOR FEDERAL
CANDIDATES.  THERE IS ALSO EVIDENCE THAT ONE OF THE PETITIONERS, RED
HAGER, DID TELL ELSWICK TO CAST FALSE VOTES NOT ONLY FOR OKEY HAGER,
BUT ALSO FOR SENATOR BYRD AND REPRESENTATIVE HECHLER, CANDIDATES
RUNNING FOR FEDERAL OFFICES.  BUT THERE IS NO CONCLUSIVE EVIDENCE IN
NEARLY 2,000 PAGES OF TRANSCRIPT THAT ANY OF THE OTHER FOUR PETITIONERS
AGREED, EITHER WITH ELSWICK OR WITH EACH OTHER, TO CAST FRAUDULENT
VOTES FOR THE FEDERAL CANDIDATES.  /3/ 

THE PROSECUTION MADE CLEAR IN ITS CLOSING ARGUMENT TO THE JURY THAT
THE ESSENCE OF ITS CASE WAS THE CONSPIRACY TO CAST FALSE VOTES FOR THE
LOCAL OFFICE OF COUNTY COMMISSIONER.  IT CAREFULLY FOCUSED THE JURY'S
ATTENTION ON THE FRAUD COMMITTED BY THE PETITIONERS AS REGARDS THE
STATE ELECTION: 

     "I THINK FROM THE EVIDENCE YOU CAN CONCLUDE BY NOW THAT THE

  THEORY BEHIND THE GOVERNMENT'S CASE ACTUALLY IS THAT THESE VOTES

  WERE CAST AND COUNTED BY GOING THROUGH THE CONTEST AND ALL IN

ORDER TO GET OKEY HAGER ELECTED TO THE COUNTY COURT, IN ORDER TO

  GET RED HAGER'S FATHER ELECTED TO THE COUNTY COURT, THAT THESE

  DEFENDANTS, ALONG WITH OTHERS, GOT THE VOTES CAST AND GOT THE

  VOTES COUNTED IN THE LONG DRAWN-OUT PROCEDURE THAT WAS INVOLVED

  OVER THERE." 

IN ITS CHARGE TO THE JURY, THE TRIAL COURT REINFORCED THIS CRUCIAL
ERROR.  IN ITS JURISDICTIONS, REPRINTED IN RELEVANT PART IN THE
APPENDIX TO THIS OPINION, THE COURT NEVER REQUIRED THE JURY TO FIND A
SPECIFIC INTENT TO HAVE FALSE VOTES CAST IN THE FEDERAL ELECTION
CONTESTS ON THE PART OF EACH OF THE CONSPIRATORS.  THROUGHOUT ITS
INSTRUCTIONS TO THE JURY, THE DISTRICT COURT REITERATED THAT THE
CRUCIAL ELEMENT OF THE CHARGED CRIME UNDER 241 WAS A CONSPIRACY TO
"INJURE AND OPPRESS . . . VOTERS . . . IN THE . . . ENJOYMENT OF . . .
THE RIGHT TO VOTE AND TO HAVE SUCH VOTES CAST, COUNTED, RECORDED, AND
CERTIFIED AT FULL VALUE."  IT STATED: 

"YOU ARE INSTRUCTED THAT THE RIGHT TO VOTE AND THE RIGHT TO HAVE THE
VALUE OF THAT VOTE UNDIMINISHED AND UNDILUTED BY THE PRESENCE OF
ILLEGAL VOTES IS A RIGHT GUARANTEED BY THE CONSTITUTION AND LAWS OF THE
UNITED STATES WITHIN THE CONTEXT OF (18 U.S.C. 241). 

        .          .          .          . 

     ". . . (IF ANY ONE OR MORE OF THE DEFENDANTS CONSPIRED

  KNOWINGLY AND INTENTIONALLY WITH ANOTHER DEFENDANT OR WITH A

  CO-CONSPIRATOR TO PRODUCE THE CASTING AND COUNTING OF ILLEGAL

  BALLOTS IN THE 1970 PRIMARY ELECTION, WITH THE INTENTION OF

  INJURY OR OPPRESSING CITIZENS IN THE FREE EXERCISE OF THEIR

  VOTING RIGHTS, THEY WOULD BE GUILTY AS CHARGED IN THIS

  INDICTMENT." 

AT NO TIME WAS THE JURY TOLD THAT SPECIFIC INTENT TO HAVE FALSE VOTES
CAST FOR THE FEDERAL CANDIDATES WAS NECESSARY FOR CONVICTION OF EACH OF
THE CONSPIRATORS; IT WAS ENOUGH THAT THE "RIGHT TO VOTE" WAS DILUTED
AND THAT "ILLEGAL BALLOTS" WERE CAST TO INJURE "VOTING RIGHTS," WITHOUT
DISTINCTION BETWEEN FEDERAL AND STATE ELECTIONS.  AS LONG AS THE JURY
ACCEPTED THE CREDIBILITY OF THE PROSECUTION WITNESSES, CONVICTION UNDER
THESE INSTRUCTIONS WAS INEVITABLE, EVEN FOR THOSE PETITIONERS WHO WERE
NOT SHOWN BY ANY CONCLUSIVE EVIDENCE TO HAVE HAD SPECIFIC INTENT TO
INTERFERE WITH THE FEDERAL ELECTION, THE GROUND ON WHICH THE COURT
AFFIRMS.     WHILE TRIAL COUNSEL DID NOT OBJECT TO THE FORM OF THE
INSTRUCTIONS, WHERE AN ERROR IS SO FUNDAMENTAL THAT IT DOES NOT
PROPERLY SUBMIT TO THE JURY THE ESSENTIAL ELEMENTS OF THE CHARGED
OFFENSE, THERE IS PLAIN ERROR AND THE INTERESTS OF JUSTICE AND FAIR
PLAY DEMAND THAT WE TAKE NOTE.  SEE FISHER V. UNITED STATES, 328 U.S.
463, 467 - 468; SCREWS V. UNITED STATES, 325 U.S. 91, 107 (OPINION OF
DOUGLAS, J.); FED. RULE CRIM. PROC. 52(B). 

THE COURT CONCEDES THAT THE JURY INSTRUCTIONS "DID NOT SPECIFICALLY
FOCUS"  ON AN INTENT TO CAST FALSE VOTES FOR FEDERAL CANDIDATES, BUT
AVOIDS THIS PROBLEM BY CONTENDING IN EFFECT THAT THIS ERROR WAS
HARMLESS BECAUSE "WE THINK IT INCONCEIVABLE THAT, EVEN IF CHARGED BY
MORE SPECIFIC INSTRUCTIONS, THE JURY COULD HAVE FOUND A CONSPIRACY TO
CAST FALSE VOTES FOR LOCAL OFFICES WITHOUT FINDING A CONSPIRACY TO CAST
FALSE VOTES FOR THE FEDERAL OFFICES AS WELL." 

I CANNOT AGREE WITH THIS CRUCIAL ASSUMPTION.  THE GRAVAMEN OF A
CONSPIRACY CHARGE IS AGREEING WITH THE INTENT OF ACHIEVING A CERTAIN
PROSCRIBED OBJECTIVE.  "(IT IS . . . ESSENTIAL TO DETERMINE WHAT KIND
OF AGREEMENT OR UNDERSTANDING EXISTED AS TO EACH DEFENDANT."  UNITED
STATES V. BORELLI, 336 F.2D 376, 384 (FRIENDLY, J.); SEE NOTE,
DEVELOPMENTS IN THE LAW--CRIMINAL CONSPIRACY, 72 HARV.L.REV.  920, 929
930.  WHEN IT IS NOT SHOWN THAT THE UNLAWFUL OBJECTIVES OF ONE
INDIVIDUAL HAVE BEEN ADOPTED BY ANOTHER, THE LATTER CANNOT BE FOUND TO
HAVE AGREED TO ACHIEVE THE OBJECTIVES AND A CONSPIRACY COUNT TO DO SO
CANNOT BE SUSTAINED.  SEE YATES V. UNITED STATES, 354 U.S. 298, 329 -
331. 

THE EVIDENCE IN THIS CASE, AS THE PROSECUTOR OBSERVED IN CLOSING
ARGUMENT, DEMONSTRATED THAT PETITIONERS FOCUSED THEIR ATTENTION ON THE
CONTEST FOR COUNTY COMMISSIONER.  THERE IS NO CONCLUSIVE EVIDENCE THAT
THE CASTING OF FRAUDULENT FEDERAL BALLOTS WAS IN FACT NECESSARY TO
PETITIONERS' SCHEME TO ABSCOND WITH THE LOCAL NOMINATION CONTEST, OR
THAT PETITIONERS THOUGHT IT NECESSARY.  THERE IS NO PROOF THAT A LOWER
QUANTUM OF VOTES FOR THE FEDERAL CANDIDATES WOULD HAVE AROUSED
SUSPICION, OR THAT PETITIONERS FELT THAT IT WOULD.  /4/  BALLOT
SPLITTING, WITH DISPARATE NUMBERS OF VOTES CAST FOR THE VARIOUS
OFFICES, WAS PREVALENT AT THIS ELECTION.  /5/  THE NOMINATIONS FOR
COUNTY COMMISSIONER AND OTHER LOCAL OFFICES WERE CLOSELY CONTESTED,
WHILE THE FEDERAL NOMINATIONS WERE NOT, SO THAT THERE WOULD NATURALLY
BE MORE VOTES CAST IN THE LOCAL RACES.  /6/  AND EVEN IF WE ASSUME THAT
A SOPHISTICATED CONSPIRATOR WOULD HAVE CONSIDERED IT NECESSARY TO STUFF
THE FEDERAL BALLOT BOX IN ORDER TO CONCEAL FRAUD IN THE STATE ELECTION,
WE SIMPLY CANNOT PRESUME THAT THE PETITIONERS DID ALSO.  THE RECORD
REVEALS AN UNSOPHISTICATED, BLUDGEONLIKE EFFORT TO WIN THE ELECTION FOR
OKEY HAGER, WITH MINIMAL PRELIMINARY ATTENTION TO THE NICETIES OF
COVERING UP THE FRAUD.  WHEN THERE IS NO CONCLUSIVE EVIDENCE THAT THE
NEED TO CAST FRAUDULENT FEDERAL VOTES EVEN CROSSED THE MINDS OF FOUR OF
THE FIVE PETITIONERS, IT IS THE JURY'S PROVINCE TO DETERMINE WHETHER
THERE WAS SPECIFIC INTENT TO CAST SUCH VOTES, NOT OURS. 

THE SLENDERNESS OF THE REED ON WHICH THE COURT'S AFFIRMANCE OF THESE
CONVICTIONS RESTS IS DEMONSTRATED BY ITS ASSERTIONS THAT THE JURY
"COULD BELIEVE" THAT THE LACK OF DISCUSSION OF FEDERAL BALLOTS ONLY
REFLECTED AN "ASSUMPTION" BY PETITIONERS THAT SUCH BALLOTS WOULD HAVE
TO BE CAST, AND THAT THE JURY "COULD HAVE INFERRED" THAT PETITIONERS
WERE MOTIVATED BY THE NEED TO CAST FALSE FEDERAL BALLOTS TO CONCEAL
FRAUDULENT LOCAL VOTES.  BUT WHETHER THE JURY "COULD HAVE INFERRED" OR
"COULD (HAVE) BELIEVED)"  THAT THERE WAS SUFFICIENT PROOF OF SPECIFIC
INTENT TO CAST FALSE FEDERAL BALLOTS IN THE EVIDENCE IN THIS CASE
MISSES THE POINT, BECAUSE THE JURY WAS NEVER REQUIRED TO MAKE THIS
FINDING IN ORDER TO CONVICT.  THE JURY VERDICT IS NOT TO BE ACCORDED
ITS TRADITIONAL SANCTITY, WHEN IT IS PREMISED ON ERRONEOUS
INSTRUCTIONS.  SEE BURTON V. UNITED STATES, 202 U.S. 344, 373 - 374. 
THE JURY HAS NEVER PASSED ON THE QUESTIONS OF PETITIONERS' INTENT WHILE
GUIDED BY PROPER INSTRUCTIONS.  WHILE CIRCUMSTANTIAL EVIDENCE MAY LEAD
A JURY TO INFER SPECIFIC INTENT TO INTERFERE WITH A RIGHT PROTECTED BY
241, THE WEIGHING OF THE EVIDENCE SHOULD BE THE JURY'S TASK, NOT THAT
OF THIS COURT.  THERE WAS IN FACT NO "VERDICT" THAT PETITIONERS
CONSPIRED TO HAVE FALSE VOTES CAST IN THE FEDERAL ELECTION, AND THE
SPARSE CIRCUMSTANTIAL EVIDENCE IN THIS CASE MAKES IT IMPOSSIBLE FOR ME
TO CONCLUDE, AS DOES THE COURT, THAT SUCH A VERDICT WAS INEVITABLE SO
THAT THE ERROR IN JURY INSTRUCTIONS, WAS HARMLESS.  AT THE VERY LEAST,
JUSTICE REQUIRES THAT THIS CASE BE REMANDED FOR A NEW TRIAL. 

        II 

BECAUSE I CANNOT AGREE THAT THE EVIDENCE SHOWED THAT PETITIONERS
NECESSARILY CONSPIRED WITH THE SPECIFIC INTENT OF HAVING FALSE VOTES
CAST FOR FEDERAL CANDIDATES, I COULD AFFIRM ONLY IF 241 REACHED A
CONSPIRACY BY LOCAL OFFICIALS TO CAST FRAUDULENT VOTES IN NOMINATING
CANDADATES FOR LOCAL OFFICES WHERE, AS HERE, THERE WAS NO EVIDENCE OF
RACIAL DISCRIMINATION.  I DO NOT, HOWEVER, BELIEVE THAT 241 CAN
PROPERLY BE CONSTRUED IN SUCH A FASHION. 

THE COURT OF APPEALS DETERMINED THAT 241 DID REACH SUCH
CONSPIRACIES.  IT NOTED THAT THE LANGUAGE OF THE SECTION SWEEPS BROADLY
TO GUARANTEE "ANY RIGHT OR PRIVILEGE SECURED . . . BY THE CONSTITUTION
OR LAWS OF THE UNITED STATES,'" 481 F.2D, AT 699, AND ALSO THAT UNITED
STATES V. GUEST, 383 U.S. 745, AND UNITED STATES V. PRICE, 383 U.S.
787, STATED THAT 241 PROSCRIBED CONSPIRACIES TO VIOLATE FOURTEENTH
AMENDMENT RIGHTS, INCLUDING THOSE PROTECTED FROM INTERFERENCE UNDER
COLOR OF LAW BY THE EQUAL PROTECTION CLAUSE.  ONE SUCH RIGHT ONLY
RECENTLY DEFINED, REASONED THE COURT OF APPEALS, IS THE RIGHT NOT TO
HAVE VALID VOTES CAST IN STATE ELECTIONS DILUTED BY THOSE ACTING UNDER
COLOR OF STATE LAW, INCLUDING LOCAL ELECTION OFFICIALS SUCH AS THOSE
INVOLVED IN THE INSTANT CONSPIRACY, CITING REYNOLDS V. SIMS, 377 U.S.
533.  THUS IN THE VIEW OF THE COURT OF APPEALS, A CONSPIRACY TO CAST
FRAUDULENT BALLOTS IN WHICH STATE ELECTION OFFICIALS TOOK PART RESULTED
IN A DENIAL OF EQUAL PROTECTION UNDER COLOR OF STATE LAW AND STATED A
CRIME UNDER 241, EVEN IF THE CONSPIRACY DID NOT ENCOMPASS A FEDERAL
ELECTION.  481 F.2D, AT 698 - 700. 

THE ARGUMENT IGNORES THE INTENT OF CONGRESS AS MANIFESTED BY THE
LEGISLATIVE HISTORY OF 241.  CONGRESS DID NOT INTEND TO REACH LOCAL
ELECTION MALFEASANCE WHERE THERE WAS NO EVIDENCE OF RACIAL BIAS BECAUSE
IT DID NOT BELIEVE THAT IT HAD THAT POWER.  IT EXPRESSED UNWILLINGNESS
TO INTERFERE WITH THE RIGHT OF STATES TO CONTROL THEIR OWN ELECTIONS
WHERE THERE WAS NO RACIAL DISCRIMINATION. 

1870, 16 STAT. 141.  THE ENFORCEMENT ACT WAS A COMPREHENSIVE BODY OF
LEGISLATION PASSED TWO MONTHS AFTER THE RATIFICATION OF THE FIFTEENTH
AMENDMENT, WHICH PROTECTED THE RIGHT OF CITIZENS TO VOTE FROM DENIAL BY
THE FEDERAL OR STATE GOVERNMENTS "ON ACCOUNT OF RACE, COLOR, OR
PREVIOUS CONDITION OF SERVITUDE."  THE FIFTEENTH AMENDMENT AUTHORIZED
CONGRESS "TO ENFORCE THIS ARTICLE BY APPROPRIATE LEGISLATION."  THIS
LATTER CLAUSE WAS THE IMPETUS FOR THE ACT. 

WHAT IS NOW 241 WAS OFFERED AS AN AMENDMENT BY SENATOR POOL OF NORTH
CAROLINA, WHO REFERRED IN INTRODUCTION THE AMENDMENT TO "RIGHTS WHICH
ARE CONFERRED UPON THE CITIZEN BY THE FOURTEENTH AMENDMENT."  CONG.
GLOBE, 41ST CONG., 2D SESS., 3611.  BUT THERE IS NO PROOF THAT HE
CONCEIVED OF THE POSSIBILITY THAT THE AMENDMENT COULD REACH LOCAL
ELECTION FRAUD WHERE THERE WAS NO RACIAL DISCRIMINATION.  /7/  ON THE
OTHER HAND, THE REST OF THE LEGISLATIVE HISTORY OF THE ENFORCEMENT ACT
DEMONSTRATES THAT CONGRESS, IN ADOPTING POOL'S AMENDMENT, COULD NOT
HAVE INTENDED TO REACH SUCH FRAUDS, BECAUSE IT DID NOT BELIEVE THAT IT
HAD THAT POWER. 

BECAUSE THE ENFORCEMENT ACT OF 1870 WAS CONCERNED PRIMARILY WITH
SUFFRAGE, THERE IS AMPLE LEGISLATIVE HISTORY ELUCIDATING THE REACH OF
CONGRESSIONAL POWER REGARDING BOTH FEDERAL AND LOCAL ELECTIONS.  THE
CONSTITUTIONAL POWER TO PASS THOSE SECTIONS OF THE ACT WHICH PURPORTED
TO DEAL WITH THE RIGHT TO VOTE IN LOCAL ELECTIONS WAS PERCEIVED TO FLOW
FROM THE FIFTEENTH AMENDMENT, /8/  WHICH PROTECTED THE RIGHT TO VOTE
FROM INFRINGEMENT ONLY "ON ACCOUNT OF RACE, COLOR, OR PREVIOUS
CONDITION OF SERVITUDE."  EVEN THE STAUNCHEST SUPPORTERS OF THE ACT
CONCEDED THAT, ABSENT THE CRITICAL ELEMENT OF RACIAL DISCRIMINATION,
THE ACT COULD NOT REACH LOCAL ELECTIONS.  THE FOLLOWING COLLOQUY, FOR
EXAMPLE, OCCURRED BETWEEN SENATOR EDMUNDS OF VERMONT, ONE OF TWO SENATE
FLOOR MANAGERS OF THE ACT, ID., AT 3753, AND SENATOR MORTON OF INDIANA,
ANOTHER SUPPORTER OF THE ACT.  WHILE INTERFERENCE WITH LOCAL ELECTIONS
COULD BE PUNISHED IF RACIAL DISCRIMINATION, AGAINST EITHER WHITE OR
BLACK, WAS EXTANT, LOCAL ELECTIONS FRAUD COULD NOT OTHERWISE BE REACHED
BY FEDERAL JURISDICTION: 

"MR. MORTON.  . . . OUR THEORY IS THAT THE QUESTION OF SUFFRAGE IS
UNDER THE CONTROL OF THE STATES, AND WAS LEFT TO THE SEVERAL STATES BY
THE CONSTITUTION OF THE UNITED STATES; AND THAT BEING THE CASE,
CONGRESS HAD NO POWER TO PASS A LAW CONFERRING SUFFRAGE ON COLORED MEN,
AND IT WAS NECESSARY TO AMEND THE CONSTITUTION OF THE UNITED STATES FOR
THAT PURPOSE.  WE THEREFORE PROVIDED IN THE FIFTEENTH AMENDMENT THAT
'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 PROPOSITION TO WHICH I
CALL ATTENTION IN THIS:  THAT THE QUESTION OF SUFFRAGE IS NOW, AS IT
WAS BEFORE, COMPLETELY UNDER THE CONTROL OF THE SEVERAL STATES TO
PUNISH VIOLATIONS OF THE RIGHT OF SUFFRAGE, JUST AS THEY HAD THE POWER
BEFORE, EXCEPT THAT WE TAKE AWAY THEIR POWER TO DENY SUFFRAGE ON
ACCOUNT OF RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE, AND HAVE
GIVEN CONGRESS THE POWER TO ENFORCE THIS AMENDMENT. 

     "THE QUESTION NOW TO WHICH I CALL THE ATTENTION OF THE SENATE

  IS WHETHER IT IS IN THE POWER OF CONGRESS TO MAKE PROVISION FOR

 PUNISHING VIOLATIONS OF THE RIGHT OF SUFFRAGE EXCEPT THOSE

  VIOLATIONS GO TO THE QUESTION OF COLOR, RACE OR PREVIOUS

  CONDITION OF SERVITUDE. 

     "MR. EDMUNDS.  BUT IT DOES NOT MAKE ANY DIFFERENCE WHAT THE
COLOR IS, BLACK OR WHITE. 

     "MR. MORTON.  NOT A BIT.  IT DOES NOT MAKE ANY DIFFERENCE

  WHICH; BUT IF A MAN IS DENIED THE RIGHT OF SUFFRAGE BECAUSE HE IS

  A WHITE MAN, IF ANY STATE SHALL ASSUME TO DENY A MAN THE RIGHT OF

  SUFFRAGE BECAUSE HE IS A WHITE MAN, THEN WE HAVE A RIGHT TO

  INTERFERE; OR IF BECAUSE HE IS A COLORED MAN, THEN WE HAVE A

  RIGHT TO INTERFERE.  BUT SUPPOSE THE DENIAL OF THE RIGHT OF

  SUFFRAGE BY A BOARD OF REGISTRATION OR A BOARD OF INSPECTORS HAS

  NOTHING WHATEVER TO DO WITH COLOR; SUPPOSE IT IS FOR AN OFFENSE

THAT EXISTED BY STATE LAW BEFORE THE ENACTMENT OF THIS FIFTEENTH

  AMENDMENT WHAT POWER HAVE WE GOT TO INTERFERE WITH THAT ANY MORE

  THAN WE HAD BEFORE? 

      "MR. EDMUNDS.  NOBODY, I THINK, WOULD CLAIM THAT WE HAVE.  I

  SHOULD NOT SAY SO."  CONG. GLOBE, 41ST CONG., 2D SESS., 3571. 

IN THE COURSE OF DEBATE, SENATOR SHERMAN OF OHIO, ANOTHER ARDENT
ADVOCATE OF THE ACT, PROPOSED AN AMENDMENT TO ADD THREE SECTIONS TO IT.
THESE SECTIONS, WHICH WERE ADOPTED WITH SLIGHT CHANGES AS 19, 20, AND
21, WERE DESIGNED TO DEAL WITH FRAUDS NOT INVOLVING RACIAL
DISCRIMINATION, BUT ONLY IN FEDERAL ELECTIONS.  SENATOR SHERMAN'S
COMMENTS EXPRESS THE DESIRE NOT TO "INVADE THE RIGHT OF ANY STATE,"
ID., AT 3664, TO CONTROL ITS OWN ELECTIONS AND REFLECT THE BELIEF THAT
AN ELEMENT OF RACIAL BIAS WAS CONSIDERED A NECESSARY PRECONDITION TO
CONGRESSIONAL POWER TO DEAL WITH STATE ELECTIONS.  FEDERAL ELECTIONS
FOR SENATORS AND CONGRESSMAN COULD BE GOVERNED ABSENT SUCH BIAS, BUT
ONLY BY VIRTUE OF THE EXPRESS AUTHORITY OF ART. I, 4, OF THE
CONSTITUTION.  /9/  IN DESCRIBING THESE AMENDMENTS TO THE HOUSE AFTER
THEIR ADOPTION BY THE SENATE, REPRESENTATIVE BINGHAM OF OHIO, THE FLOOR
MANAGER OF THE ACT IN THE HOUSE, STATED: 

"THE AMENDMENTS PROPOSED TO PREVENT FRAUDULENT REGISTRATION OR
FRAUDULENT VOTING, IN SO FAR AS I AM ADVISED, DO NOT ALTER ANY OF THE
EXISTING REGULATIONS OF THE STATES TOUCHING REGISTRATION; THEY ARE BUT
A SIMPLE EXERCISE OF THE POWER EXPRESSLY CONFERRED ON THE CONGRESS OF
THE UNITED STATES TO REGULATE ELECTIONS OF MEMBERS AND DELEGATES TO
CONGRESS.  THEY ARE EXPRESSLY LIMITED TO ELECTIONS OF THOSE OFFICERS. 
I DO NOT DEEM IT IMPORTANT TO SAY ANYTHING FURTHER ON THAT POINT." 
CONG. GLOBE, 41ST CONG., 2D SESS., 3872. 

ONLY NINE MONTHS LATER, THE SAME CONGRESS WHICH PASSED THE
ENFORCEMENT ACT OF 1870 PASSED THE FORCE ACT OF 1871, 16 STAT. 433,
WHICH SUPPLEMENTED THE 1870 ACT BY SUPPLYING INDEPENDENT FEDERAL
ENFORCEMENT MACHINERY TO AFFIRMATIVELY ENSURE THE RIGHT TO VOTE IN ALL
CONGRESSIONAL ELECTIONS.  FEDERAL ELECTION OFFICIALS WERE APPOINTED TO
SUPERVISE SUCH ELECTIONS; THE NORMAL STATE PROCESSES WERE SUPPRESSED. 
BUT CONGRESS MADE CLEAR THAT ITS POWER COULD ATTACH ONLY WHEN NEEDED TO
PROTECT CONGRESSIONAL ELECTIONS.  ONE OF THE SUPPORTERS OF THE BILL,
REPRESENTATIVE CHURCHILL OF NEW YORK, STATED: 

     "BUT, MR. SPEAKER, FOR SOME YEARS PAST GRAVE DOUBTS HAVE

  PREVAILED IN DIFFERENT PORTIONS OF THIS COUNTRY AS TO WHETHER THE

  DECLARED RESULTS OF ELECTIONS HAVE TRULY EXPRESSED THE WILL OF

  THE PEOPLE.  WITH REGARD TO OFFICERS OF STATES AND OFFICERS OF

  MINOR COMMUNITIES THIS DOUBT, SO FAR AS IT EXISTS, IS LEFT TO BE

  DETERMINED, AS IT CAN ONLY BE DETERMINED, BY THE LAWS EXISTING IN

  THOSE STATES OR COMMUNITIES.  BUT SO FAR AS REGARDS MEMBERS OF

  THE CONGRESS OF THE UNITED STATES, ALTHOUGH THE FIRST LEGISLATION

  IN REGARD TO THE MATTER IS INTRUSTED BY THE CONSTITUTION OF THE

UNITED STATES TO THE STATES THEMSELVES, THE POWER IS PROPERLY

  RESERVED TO CONGRESS ITSELF TO DETERMINE BY WHAT RULES THESE

  ELECTIONS SHALL BE CONDUCTED.  . . ."  CONG. GLOBE, 41ST CONG.,
3D

  SESS., 1274. 

IN THE SAME VEIN, REPRESENTATIVE BINGHAM, WHO AS NOTED WAS A FLOOR
MANAGER OF THE 1870 ACT, AGAIN REFLECTED CAUTION ABOUT INTERFERING WITH
THE RESPONSIBILITY OF THE STATES TO MANAGE THEIR OWN ELECTIONS,
ASSERTING: 

     "I AM WILLING THAT THE ISSUE SHALL BE MADE UP, AND LET THE

  PEOPLE SPEAK UPON THIS QUESTION.  THE BILL INTERFERES WITH NO

  RESERVED RIGHTS OF THE STATES.  IF THE STATES DO NOT CHOOSE TO

  HOLD THEIR ELECTIONS ON THE SAME DAY FOR MERE STATE OFFICIALS, BE

  IT SO; BUT WITH REGARD TO THE VOTE FOR REPRESENTATIVES IN

  CONGRESS, I TAKE IT THAT THE GREAT MAJORITY OF THE PEOPLE OF

  EVERY STATE IN THE UNION WILL ADMIT THAT THE NATION HAS A RIGHT

  TO BE REPRESENTED AT EVERY ELECTION FOR CONGRESS BY ITS OWN LAW

  AND BY ITS OWN OFFICIALS AS WELL AS THE STATE.  I HAVE GIVEN THE

  WORDS, THE THOUGHTFUL WORDS OF THE MAKERS OF THE CONSTITUTION IN

  SUPPORT OF THAT RIGHT.  NO LAW OF ANY STATE BY THIS BILL IS IN

  ANY MANNER WRONGFULLY IMPAIRED."  ID., AT 1284.  /10/ 

THUS, WHILE THE CONCURRENT NOMINATION RACES FOR FEDERAL OFFICERS IN
THE MOUNT GAY PRECINCT PROVIDED AN OPPORTUNITY FOR PETITIONERS TO
VIOLATE 241, THAT VIOLATION COULD OCCUR ONLY IF THE PETITIONERS
POSSESSED THE SPECIFIC INTENT TO CAST FRAUDULENT VOTES IN THE FEDERAL
ELECTIONS AS AN OBJECT OF THEIR CONSPIRACY. 

THE BROAD LANGUAGE OF GUEST AND PRICE DOES NOT AUTHORIZE US TO DRAW
ANY OTHER CONCLUSION.  GUEST INVOLVED RACIAL DISCRIMINATION AND RIGHTS
UNDER THE EQUAL PROTECTION CLAUSE "FIRMLY AND PRECISELY ESTABLISHED BY
A CONSISTENT LINE OF DECISIONS IN THIS COURT."  383 U.S., AT 754.  THAT
IS NOT TRUE OF THE RIGHT TO BE FREE FROM FRAUD WITHOUT ANY RACIAL
CONNOTATION IN LOCAL ELECTIONS.  IN PRICE, WE NOTED THE SPARSE
LEGISLATIVE HISTORY OF 241 AS PART OF THE ENFORCEMENT ACT, AND HELD
THAT THERE WAS NO INDICATION THAT CONGRESS DID NOT INTEND IT TO REACH
THE FOURTEENTH AMENDMENT RIGHT IN QUESTION, THE RIGHT TO DUE PROCESS. 
383 U.S., AT 801.  WE NOTED THAT THE APPLICATION OF 241 IN THAT CASE
"DOES NOT RAISE FUNDAMENTAL QUESTIONS OF FEDERAL-STATE RELATIONSHIPS." 
ID., AT 806.  THOSE FACTS ARE NOT PRESENT IN THIS CASE.  THERE IS
LEGISLATIVE HISTORY WHICH INDICATES THAT CONGRESS DID NOT INTEND TO
REACH LOCAL ELECTION FRAUDS IN PASSING 241, BECAUSE IT DID NOT BELIEVE
THAT IT HAD THAT POWER.  AND THE DECISION OF THE COURT OF APPEALS
REACHES TO THE VERY HEART OF FEDERAL-STATE RELATIONS, PERMITTING
FEDERAL INTRUSION IN EVEN THE MOST LOCAL ELECTION, INTRUSIONS WHICH THE
41ST CONGRESS ATTEMPTED TO AVOID WHEN PASSING THE ENFORCEMENT ACT OF
1870 AND THE FORCE ACT OF 1871. 

WHILE THE CIVIL PROTECTIONS OF THE FOURTEENTH AMENDMENT REACH STATE
ELECTIONS EVEN WHERE THERE IS NO RACIAL ANIMUS, CRIMINAL LAWS SUCH AS
18 U.S.C. 241 MUST BE STRICTLY CONSTRUED, AND WE HAVE REQUIRED THAT
CONGRESS "PLAINLY AND UNMISTAKABLY" ASSERT FEDERAL CRIMINAL
JURISDICTION OVER AN ACTIVITY.  SEE UNITED STATES V. BASS, 404 U.S.
336, 348; UNITED STATES V. GRADWELL, 243 U.S. 476, 485.  HERE CONGRESS
DID NOT PLAINLY INTEND 241 TO REACH LOCAL ELECTIONS FRAUDS, AND
APPARENTLY INTENDED QUITE THE OPPOSITE.  "(BECAUSE OF THE SERIOUSNESS
OF CRIMINAL PENALTIES, AND BECAUSE CRIMINAL PUNISHMENT USUALLY
REPRESENTS THE MORAL CONDEMNATION OF THE COMMUNITY, LEGISLATURES AND
NOT COURTS SHOULD DEFINE CRIMINAL ACTIVITY.  THIS POLICY EMBODIES 'THE
INSTINCTIVE DISTASTE AGAINST MEN LANGUISHING IN PRISON UNLESS THE
LAWMAKER HAS CLEARLY SAID THEY SHOULD.'"  UNITED STATES V. BASS, SUPRA,
AT 348. 

I CAN AFFIRM NEITHER ON THE THEORY THAT 241 REACHES STATE ELECTION
FRAUDS WHERE THERE IS NO EVIDENCE OF RACIAL DISCRIMINATION, NOR ON THE
THEORY ADOPTED BY THE COURT THAT IT WAS "INCONCEIVABLE" THAT
PETITIONERS DID NOT SPECIFICALLY INTEND TO HAVE FALSE VOTES CAST IN THE
FEDERAL ELECTION, WITH THE EXCEPTION OF RED HAGER.  THE OTHER
PETITIONERS ARE ENTITLED AT LEAST TO A NEW TRIAL UNDER PROPER
INSTRUCTIONS. 

/1/  SEE UNITED STATES V. GUEST, 383 U.S. 745, 753 - 754; ID., AT
758 - 786 (BRENNAN, J., CONCURRING AND DISSENTING); UNITED STATES V.
PRICE, 383 U.S. 787, 806 N. 20; UNITED STATES V. WILLIAMS, 341 U.S. 70,
93 - 95 (DOUGLAS, J., DISSENTING); SCREWS V. UNITED STATES, 325 U.S. 91
101 - 107 (OPINION OF DOUGLAS, J.). 

/2/  ID., AT 105; SEE UNITED STATES V. PRICE, SUPRA, AT 806 N. 20. 

/3/  CECIL ELSWICK, AN UNINDICTED CONCONSPIRATOR WHO WAS A WITNESS
FOR THE GOVERNMENT, TESTIFIED THAT BERNARD SMITH TOLD HIM "HOW TO WIN
THE ELECTION," BUT THERE IS NO EVIDENCE THAT SMITH MADE ANY REFERENCE
TO CASTING FALSE BALLOTS FOR FEDERAL CANDIDATES. 

ELSWICK ALSO TESTIFIED THAT THERE WAS A MEETING THE NIGHT BEFORE THE
ELECTION AT WHICH ALL OF THE PETITIONERS WERE PRESENT AND AT WHICH, THE
COURT NOTES, SMITH AND "RED" HAGER EMPHASIZED THE NEED TO PUT "ALL THE
VOTES" ON THE MACHINE.  THE ENTIRE STATEMENT INDICATES THAT HAGER AND
SMITH WERE SIMPLY URGING ELSWICK TO CAST AS MANY VOTES AS COULD BE CAST
IN THE PRECINCT, GIVEN THE NUMBER OF REGISTERED VOTERS; IT DOES NOT
CONSTITUTE AN INSTRUCTION TO CAST VOTES FOR FEDERAL CANDIDATES AS WELL
AS THE OKEY HAGER SLATE:  "BERNARD AND RED HAGER WAS MOSTLY SPOKESMEN
AND BERNARD SAID TO BE SURE AND PULL ALL THE VOTES ON THERE, PUT ALL OF
THEM ON BUT FIFTY, AND RED KEPT SAYING, 'PUT THEM ALL ON.'"  TR. 632. 

/4/  SEE N. 3, SUPRA. 

/5/  FOR EXAMPLE, 375 VOTES WERE RECORDED IN THE MOUNT GAY PRECINCT
FOR COUNTY COMMISSIONER (LONG TERM), 371 FOR JUSTICE OF THE PEACE AND
CONSTABLE, BUT ONLY 348 FOR UNITED STATES SENATOR AND 328 FOR UNITED
STATES REPRESENTATIVE. 

/6/  THE COUNTYWIDE TOTALS IN THE HAGER-SCAGGS COUNTY COMMISSIONER'S
RACE HAD HAGER THE WINNER BY ONLY 21 VOTES, AND THE RESULT WOULD HAVE
BEEN REVERSED WITHOUT THE RETURNS FROM MOUNT GAY.  ON THE FEDERAL
LEVEL, SENATOR BYRD AND REPRESENTATIVE HECHLER WERE APPARENTLY RUNNING
VIRTUALLY UNOPPOSED FOR RENOMINATION.  IN MOUNT GAY, SUPPORTERS OF BOTH
HAGER AND SCAGGS VOTED FOR THESE TWO FEDERAL INCUMBENTS, AND BYRD WON
MOUNT GAY BY A VOTE OF 346 TO SIX AND HECHLAR BY A VOTE OF 318 TO 10. 

/7/  SENATOR POOL'S REMARKS ARE REPRINTED IN FULL IN THE APPENDIX TO
UNITED STATES V. PRICE, 383 U.S., AT 807 - 820. 

/8/  SEE, E.G., CONG. GLOBE, 41ST CONG., 2D SESS., 3503 (REP.
BINGHAM); ID., AT 3559 (SEN. STEWART); ID, AT 3564 (SEN. POOL); ID., AT
3567 (SEN. STOCKTON). 

/9/  ARTICLE I, 4, PROVIDES THAT: "THE TIMES, PLACES AND MANNER OF
HOLDING ELECTIONS FOR SENATORS AND REPRESENTATIVES, SHALL BE PRESCRIBED
IN EACH STATE BY THE LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT ANY
TIME BY LAW MAKE OR ALTER SUCH REGULATIONS, EXCEPT AS TO THE PLACES OF
CHUSING SENATORS."  SHERMAN'S AMENDMENT ORIGINALLY PROVIDED ALSO FOR
REGULATION OF PRESIDENTIAL ELECTORS, BUT THIS PROVISION WAS QUICKLY
DELETED WHEN IT WAS POINTED OUT THAT CONGRESS WAS WITHOUT
CONSTITUTIONAL POWER TO INCLUDE IT.  CONG. GLOBE, 41ST CONG., 2D SESS.,
3670. 

IN PROPOSING THE AMENDMENTS, SHERMAN STATED: 

"(SENATOR THURMAN) ADMITS THAT CONGRESS HAS A RIGHT BY APPROPRIATE
LEGISLATION TO PREVENT ANY STATE FROM DISCRIMINATING AGAINST A VOTER ON
ACCOUNT OF HIS RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE.  THAT
IS ALL, I BELIEVE, THAT IS CLAIMED BY ANY ONE ON THIS SIDE OF THE
CHAMBER AS TO THE AUTHORITY CONFERRED BY THE FIFTEENTH AMENDMENT.  . .
.

        .  .          .          . 

"BUT, MR. PRESIDENT, THERE IS ONE OTHER GRIEVANCE THAT I FEEL OUGHT
TO BE DEALT WITH AT THIS MOMENT, AS WE HAVE THIS BILL BEFORE US; A
GRIEVANCE WHICH HAS BECOME OF GREATER MAGNITUDE EVEN THAN THE DENIAL OF
THE RIGHT TO VOTE TO COLORED PEOPLE; AND THAT IS, THE OPEN, GLARING,
ADMITTED FRAUDS BY WHOLESALE IN THE GREAT CITIES OF THIS COUNTRY, BY
WHICH OUR GOVERNMENT IS ABOUT TO BE SUBVERTED . . . . WE HAVE OFFICIAL
DOCUMENTS WITHOUT NUMBER IN BOTH HOUSES OF CONGRESS SHOWING THE GROWING
EVIL OF TRAMPLING DOWN THE RIGHTS OF COMMUNITIES AND STATES TO
REPRESENTATION IN CONGRESS IN THE ELECTION OF MEMBERS OF CONGRESS AND
IN THE ELECTION OF SENATORS . . . . 

". . . THERE CAN BE NO DOUBT ABOUT THE CONSTITUTIONAL POWER OF
CONGRESS IN THIS PARTICULAR, BECAUSE IT IS IN PLAIN ACCORDANCE WITH THE
PROVISIONS OF THE CONSTITUTION WHICH AUTHORIZE CONGRESS TO CHANGE AND
ALTER THE MODE AND MANNER OF ELECTING MEMBERS OF CONGRESS (ART. I, 4) .
. . . AS I HAVE SAID, THEY HAVE RECEIVED THE SANCTION OF A COMMITTEE OF
THE HOUSE, WHICH HAS CAREFULLY EXAMINED THE WHOLE SUBJECT, AND I DO NOT
BELIEVE THEY RAISE ANY CONSTITUTIONAL QUESTION, OR INVADE THE RIGHT OF
ANY STATE. 

        .          .          .          . 

"IN MY JUDGMENT IN ELECTIONS FOR OFFICERS OF THE NATIONAL GOVERNMENT
WE CAN PRESCRIBE, UNDER THE CONSTITUTION, THE MODE AND MANNER AND
QUALIFICATION OF VOTERS."  ID., AT 3663 - 3664. 

/10/  SEE ALSO THE REMARKS OF REPRESENTATIVE LAWRENCE OF OHIO: 

"MR. LAWRENCE . . . . AND IF THE STATES HAVE FAILED TO ENACT LAWS
NECESSARY TO SECURE WHAT WE ALL, I TRUST, HAVE SO MUCH AT HEART, TO
WIT, THE PURITY OF THE BALLOT BOX, OR HAVE FAILED TO EXECUTE THOSE
ALREADY ENACTED, THEN IT IS THE HIGHEST DUTY OF THIS CONGRESS TO
INTERVENE AND PROTECT THE CITIZENS OF THE UNITED STATES IN THE
ENJOYMENT OF THE ELECTIVE FRANCHISE AGAINST FORCE AND FRAUD IN THE
ELECTION OF REPRESENTATIVES IN CONGRESS, LEAVING THE STATES TO PROVIDE
SUCH LEGISLATION AS THEY MAY DEEM NECESSARY IN THE ELECTION OF LOCAL
AND STATE OFFICERS. 

        .        .          .          . 

"IT WILL REACH ANY OFFICER WHO IMPROPERLY TAMPERS WITH THE ELECTION
OF A REPRESENTATIVE OF CONGRESS; BUT IT DOES NOT REACH ANY STATE
OFFICER OR ANY CITIZEN IN CONNECTION WITH ANY LOCAL OR STATE ELECTION. 

.          .          .          . 

"MR. JONES, OF KENTUCKY.  I HAVE NOT READ ALL THE PROVISIONS OF THIS
BILL, AND AS THE GENTLEMAN SEEMS TO HAVE DONE SO I DESIRE TO ASK HIM
WHETHER THEY APPLY TO OTHER ELECTIONS THAN THOSE FOR MEMBERS OF
CONGRESS? 

"MR. LAWRENCE.  THEY APPLY ONLY TO THE ELECTIONS FOR REPRESENTATIVES
AND DELEGATES TO CONGRESS.  THE BILL DOES NOT PROPOSE TO INTERFERE WITH
STATE ELECTIONS AT ALL."  CONG. GLOBE, 41ST CONG., 3D SESS., 1276. 

        APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING

        EXCERPTS FROM JURY INSTRUCTIONS 

THE INDICTMENT IN THIS CASE CHARGES IN SUBSTANCE THAT BEGINNING ON
OR ABOUT THE 1ST DAY OF MAY, 1970 AND CONTINUING UNTIL ON OR ABOUT THE
DATE OF THE INDICTMENT THE DEFENDANTS UNLAWFULLY, WILLFULLY AND
KNOWINGLY CONSPIRED WITH EACH OTHER AND WITH OTHER PERSONS WHO ARE BOTH
KNOWN AND UNKNOWN TO THE GRAND JURY, TO INJURE AND OPPRESS THE
QUALIFIED VOTERS OF LOGAN COUNTY IN THE FREE EXERCISE AND ENJOYMENT OF
CERTAIN RIGHTS AND PRIVILEGES SECURED TO THEM BY THE CONSTITUTION AND
THE LAWS OF THE UNITED STATES, THAT IS, THE RIGHT TO VOTE AND TO HAVE
SUCH VOTES CAST, COUNTED, RECORDED AND CERTIFIED AT FULL VALUE. 

THE INDICTMENT ALSO ALLEGES THAT IN ORDER TO EFFECT THE OBJECTS OF
THE CONSPIRACY THE DEFENDANTS CAUSED AND ATTEMPTED TO CAUSE VOTES TO BE
CAST IN THE MOUNT GAY PRECINCT OF LOGAN COUNTY BY PROCEDURES AND
METHODS IN VIOLATION OF THE LAWS OF THE STATE OF WEST VIRGINIA, ALL
WITH THE PURPOSE AND INTENT THAT THE ILLEGAL, FRAUDULENT AND FICTITIOUS
BALLOTS WOULD BE COUNTED, RETURNED AND CERTIFIED AS A PART OF THE TOTAL
VOTE CAST IN THE MAY 12, 1970 PRIMARY ELECTION, THEREBY IMPAIRING,
DIMINISHING, DILUTING AND DESTROYING THE VALUE AND EFFECT OF VOTES
LEGALLY, PROPERLY AND HONESTLY CAST IN THAT PRIMARY ELECTION IN LOGAN
COUNTY, WHICH THE INDICTMENT ALLEGES VIOLATES TITLE 18 OF THE U.S.C.

THE STATUTE CITED IN THE INDICTMENT PROVIDES IN PART THAT IT SHALL
BE A CRIMINAL OFFENSE FOR TWO OR MORE PERSONS TO CONSPIRE TO INJURE ANY
CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE
SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED STATES.  YOU
ARE INSTRUCTED THAT THE RIGHT TO VOTE AND THE RIGHT TO HAVE THE VALUE
OF THAT VOTE UNDIMINISHED AND UNDILUTED BY THE PRESENCE OF ILLEGAL
VOTES IS A RIGHT GUARANTEED BY THE CONSTITUTION AND LAWS OF THE UNITED
STATES WITHIN THE CONTEXT OF THE CHARGING STATUTE. 

THE INDICTMENT IN THIS CASE STATES THAT THE DEFENDANTS CAUSED FALSE
AND FICTITIOUS VOTES TO BE CAST AND COUNTED, AND THAT CASTING AND
COUNTING SUCH VOTES VIOLATES THE LAWS OF THE STATE OF WEST VIRGINIA. 
WITH REGARD TO WHETHER OR NOT CASTING AND COUNTING FALSE AND FICTITIOUS
VOTES OR CAUSING THEM TO BE CAST AND COUNTED VIOLATES WEST VIRGINIA
LAW, YOU ARE FURTHER INSTRUCTED THAT THE LAWS OF THE STATE OF WEST
VIRGINIA ARE VIOLATED WHEN FICTITIOUS VOTES ARE CAST AND COUNTED OR
CAUSED TO BE CAST AND COUNTED. 

THE GOVERNMENT IN ESSENCE CONTENDS THAT THESE DEFENDANTS, ALONG WITH
OTHER CO-CONSPIRATORS NOT NAMED AS DEFENDANTS IN THE INDICTMENT,
INCLUDING ELWOOD SLOAN, CECIL ELSWICK, CALVIN NAPIER, MAE STOLLINGS,
MINERVA RICHARDS, JANET SULLINS AND PERHAPS OTHERS, DID UNLAWFULLY,
WILLFULLY AND KNOWINGLY CONSPIRE TOGETHER AND WITH EACH OTHER TO
VIOLATE THE LAW OF THE UNITED STATES IN CAUSING OR ATTEMPTING TO CAUSE
VOTES TO BE CAST IN THE MOUNT GAY PRECINCT OF LOGAN COUNTY, WEST
VIRGINIA IN THE MAY 1970 PRIMARY ELECTION BY PROCEDURES AND METHODS IN
VIOLATION OF THE LAWS OF WEST VIRGINIA PERTAINING TO THE HANDLING OF A
PRECINCT BY ELECTION OFFICIALS, AND BY FURTHER CAUSING AND ATTEMPTING
TO CAUSE THE COUNTY COURT OF LOGAN COUNTY, WEST VIRGINIA, TO FIND THAT
NO ILLEGAL VOTES WERE CAST IN THE MOUNT GAY PRECINCT BY SOLICITING
PERJURY AND THE COMMISSION OF PERJURY IN AN ELECTION CONTEST HELD
SUBSEQUENT TO THE MAY 12, 1970 PRIMARY, ALL WITH THE PURPOSE AND INTENT
THAT THE ALLEGED ILLEGAL AND FRAUDULENT AND FICTITIOUS VOTES WOULD BE
COUNTED AS A PART OF THE TOTAL VOTE CAST.  THE GOVERNMENT CONTENDS, OF
COURSE, THAT ALL THIS WAS DONE IN VIOLATION OF TITLE 18, SECTION 241 OF
THE U.S.C.  THE CHARGING STATUTE DESIGNATED IN THE INDICTMENT. 

       .          .          .          . 

THE COURT FURTHER TELLS YOU THAT INTENT IS AN ESSENTIAL ELEMENT OF
THIS OFFENSE.  YOU ARE THEREFORE CHARGED THAT BEFORE YOU CAN CONVICT
THE DEFENDANTS, OR ANY OT THEM, YOU MUST BELIEVE BEYOND A REASONABLE
DOUBT THAT SUCH DEFENDANT OR DEFENDANTS DELIBERATELY AND WITH KNOWLEDGE
CONSPIRED WITH OTHERS TO INJURE CERTAIN QUALIFIED VOTERS IN THE FREE
EXERCISE AND ENJOYMENT OF THEIR RIGHT OF SUFFRAGE.  NOW, IT IS A LEGAL
PRESUMPTION THAT PEOPLE INTEND THE NATURAL AND PROBABLE CONSEQUENCES OF
THEIR ACTS, AND ALSO THAT THEY KNOW THAT THE RIGHT OF LEGALLY QUALIFIED
PERSONS TO VOTE IS A FEDERALLY CONSTITUTIONALLY PROTECTED RIGHT, AND
CONSEQUENTLY, IF ANY ONE OR MORE OF THE DEFENDANTS CONSPIRED KNOWINGLY
AND INTENTIONALLY WITH ANOTHER DEFENDANT OR WITH A CO-CONSPIRATOR TO
PRODUCE THE CASTING AND COUNTING OF ILLEGAL BALLOTS IN THE 1970 PRIMARY
ELECTION, WITH THE INTENTION OF INJURY OR OPPRESSING CITIZENS IN THE
FREE EXERCISE OF THEIR VOTING RIGHTS, THEY WOULD BE GUILTY AS CHARGED
IN THIS INDICTMENT. 

DAVID GINSBURG ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS ALBERT J. BEVERIDGE III. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL POTTINGER, GERALD P. NORTON, WALTER W. BARNETT, AND
JEFFERY R. WHIELDON. 
..END :










HOWARD JOHNSON CO. V. HOTEL EMPLOYEES, 417 U.S. 249 


       HOWARD JOHNSON CO., INC. V. DETROIT LOCAL JOINT EXECUTIVE

           BOARD, HOTEL & RESTAURANT EMPLOYEES & BARTENDERS

           INTERNATIONAL UNION, AFL-CIO

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 631.  ARGUED MARCH 19 - 20, 1974--DECIDED JUNE 3,

           1974; 482 F.2D 489, REVERSED. 


    PETITIONER PURCHASED THE ASSETS OF A RESTAURANT AND MOTOR LODGE

  UNDER AN AGREEMENT WHEREBY THE SELLERS, WHO HAD BEEN OPERATING

  THE ENTERPRISES UNDER FRANCHISES FROM PETITIONER, RETAINED THE

  REAL PROPERTY AND LEASED IT TO PETITIONER, AND PETITIONER

  EXPRESSLY DID NOT ASSUME ANY OF THE SELLERS' OBLIGATIONS,

  INCLUDING THOSE UNDER ANY COLLECTIVE-BARGAINING AGREEMENT. 

  DECIDING TO HIRE ITS OWN WORK FORCE TO OPERATE THE ENTERPRISES,

  PETITIONER HIRED 45 EMPLOYEES, BUT ONLY NINE OF THE SELLERS' 53

  FORMER EMPLOYEES AND NONE OF THE FORMER SUPERVISORS.  RESPONDENT

UNION, WHICH HAD COLLECTIVE-BARGAINING AGREEMENTS WITH THE

 SELLERS CONTAINING ARBITRATION PROVISIONS, FILED AN ACTION UNDER

  301 OF THE LABOR MANAGEMENT RELATIONS ACT, CLAIMING THAT

  PETITIONER'S FAILURE TO HIRE ALL THE SELLERS'  EMPLOYEES

  CONSTITUTED A "LOCKOUT" IN VIOLATION OF THE AGREEMENTS AND

  SEEKING INJUNCTIVE RELIEF AND AN ORDER COMPELLING PETITIONER AND

  THE SELLERS TO ARBITRATE THE EXTENT OF THEIR OBLIGATIONS TO THE

  SELLERS'  EMPLOYEES UNDER THE AGREEMENTS.  THE DISTRICT COURT

  HELD THAT PETITIONER WAS REQUIRED TO ARBITRATE, BUT DENIED THE

  UNION'S MOTION FOR A PRELIMINARY INJUNCTION REQUIRING PETITIONER

  TO HIRE ALL OF THE SELLERS'  EMPLOYEES.  THE COURT OF APPEALS

AFFIRMED THE ORDER COMPELLING PETITIONER TO ARBITRATE.  HELD:

  PETITIONER WAS NOT REQUIRED TO ARBITRATE WITH THE UNION IN THE

  CIRCUMSTANCES OF THIS CASE, SINCE THERE WAS PLAINLY NO

  SUBSTANTIAL CONTINUITY OF IDENTITY IN THE WORK FORCE HIRED BY

  PETITIONER WITH THAT OF THE SELLERS, AND NO EXPRESS OR IMPLIED

  ASSUMPTION OF THE AGREEMENT TO ARBITRATE.  JOHN WILEY & SONS V.

  LIVINGSTON, 376 U.S. 543, DISTINGUISHED.  PETITIONER HAD THE

  RIGHT NOT TO HIRE ANY OF THE SELLERS'  EMPLOYEES, IF IT SO

  DESIRED, NLRB V. BURNS SECURITY SERVICES, 406 U.S. 272, AND THIS

  RIGHT CANNOT BE CIRCUMVENTED BY THE UNION'S ASSERTING ITS CLAIMS

  IN A 301 SUIT TO COMPEL ARBITRATION RATHER THAN IN AN UNFAIR

LABOR PRACTICE CONTEXT.  PP. 253 - 265. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, AND

REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION,

  POST, P. 265. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN WE ARE FACED WITH THE PROBLEM OF DEFINING THE LABOR LAW
OBLIGATIONS OF A "SUCCESSOR" EMPLOYER TO THE EMPLOYEES OF ITS
PREDECESSORS.  IN THIS CASE, PETITIONER HOWARD JOHNSON CO. IS THE BONA
FIDE PURCHASER OF THE ASSETS OF A RESTAURANT AND MOTOR LODGE. 
RESPONDENT UNION WAS THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES OF
THE PREVIOUS OPERATORS, AND HAD SUCCESSFULLY CONCLUDED COLLECTIVE
BARGAINING AGREEMENTS WITH THEM.  IN COMMENCING ITS OPERATIONS OF THE
RESTAURANT, HOWARD JOHNSON HIRED ONLY A SMALL FRACTION OF THE
PREDECESSORS' EMPLOYEES.  THE QUESTION PRESENTED IN THIS CASE IS
WHETHER THE UNION MAY COMPEL HOWARD JOHNSON TO ARBITRATE, UNDER THE
ARBITRATION PROVISIONS OF THE COLLECTIVE-BARGAINING AGREEMENTS SIGNED
BY ITS PREDECESSORS, THE EXTENT OF ITS OBLIGATIONS UNDER THOSE
AGREEMENTS TO THE PREDECESSORS' EMPLOYEES. 

PRIOR TO THE SALE AT ISSUE HERE, THE GRISSOMS--CHARLES T. GRISSOM,
P. L. GRISSOM, BEN BIBB, P. L. GRISSOM & SON, INC., AND THE BELLEVILLE
RESTAURANT CO., A CORPORATION WHOLLY OWNED BY P. L. GRISSOM & SON--HAD
OPERATED A HOWARD JOHNSON'S MOTOR LODGE AND AN ADJACENT HOWARD
JOHNSON'S RESTAURANT IN BELLEVILLE, MICHIGAN, UNDER FRANCHISE
AGREEMENTS WITH THE PETITIONER.  EMPLOYEES AT BOTH THE RESTAURANT AND
MOTOR LODGE WERE REPRESENTED BY THE RESPONDENT HOTEL & RESTAURANT
EMPLOYEES & BARTENDERS INTERNATIONAL UNION.  /1/  THE GRISSOMS HAD
ENTERED INTO SEPARATE COLLECTIVE-BARGAINING AGREEMENTS WITH THE UNION
COVERING EMPLOYEES AT THE TWO ESTABLISHMENTS.  BOTH AGREEMENTS
CONTAINED DISPUTE SETTLEMENT PROCEDURES LEADING ULTIMATELY TO
ARBITRATION.  BOTH AGREEMENTS ALSO PROVIDED THAT THEY WOULD BE BINDING
UPON THE EMPLOYER'S "SUCCESSORS, ASSIGNS, PURCHASERS, LESSESS OR
TRANSFERRES." 

ON JUNE 16, 1972, THE GRISSOMS ENTERED INTO AN AGREEMENT WITH HOWARD
JOHNSON TO SELL IT ALL OF THE PERSONAL PROPERTY USED IN CONNECTION WITH
OPERATION OF THE RESTAURANT AND MOTOR LODGE.  THE GRISSOMS RETAINED
OWNERSHIP OF THE REAL PROPERTY, LEASING BOTH PREMISES TO HOWARD
JOHNSON.  HOWARD JOHNSON DID NOT AGREE TO ASSUME ANY OF THE GRISSOMS'
OBLIGATIONS, EXCEPT FOR FOUR SPECIFIC CONTRACTS RELATING TO OPERATION
OF THE RESTAURANT AND MOTOR LODGE.  ON JUNE 28, HOWARD JOHNSON MAILED
THE GRISSOMS A LETTER, WHICH THEY LATER ACKNOWLEDGED AND CONFIRMED,
CLARIFYING THAT "(IT WAS UNDERSTOOD AND AGREED THAT THE PURCHASER . . .
WOULD NOT RECOGNIZE AND ASSUME ANY LABOR AGREEMENTS BETWEEN THE SELLERS
. . . AND ANY LABOR ORGANIZATIONS," AND THAT IT WAS FURTHER AGREED THAT
"THE PURCHASER DOES NOT ASSUME ANY OBLIGATIONS OR LIABILITIES OF THE
SELLERS RESULTING FROM ANY LABOR AGREEMENTS . . . ." 

TRANSFER OF OPERATION OF THE RESTAURANT AND MOTOR LODGE WAS SET FOR
MIDNIGHT, JULY 23, 1972.  ON JULY 9, THE GRISSOMS NOTIFIED ALL OF THEIR
EMPLOYEES THAT THEIR EMPLOYMENT WOULD TERMINATE AS OF THAT TIME.  THE
UNION WAS ALSO NOTIFIED OF THE TERMINATION OF THE GRISSOMS' BUSINESS. 
ON JULY 11, HOWARD JOHNSON ADVISED THE UNION THAT IT WOULD NOT
RECOGNIZE THE UNION OR ASSUME ANY OBLIGATIONS UNDER THE EXISTING
COLLECTIVE-BARGAINING AGREEMENTS. 

AFTER REACHING AGREEMENT WITH THE GRISSOMS, HOWARD JOHNSON BEGAN
HIRING ITS OWN WORK FORCE.  IT PLACED ADVERTISEMENTS IN LOCAL
NEWSPAPERS, AND POSTED NOTICES IN VARIOUS PLACES, INCLUDING THE
RESTAURANT AND MOTOR LODGE.  IT BEGAN INTERVIEWING PROSPECTIVE
EMPLOYEES ON JULY 10, HIRED ITS FIRST EMPLOYEES ON JULY 18, AND BEGAN
TRAINING THEM AT A HOWARD JOHNSON FACILITY IN ANN ARBOR ON JULY 20. 
PRIOR TO THE SALE, THE GRISSOMS HAD 53 EMPLOYEES.  HOWARD JOHNSON
COMMENCED OPERATIONS WITH 45 EMPLOYEES, 33 ENGAGED IN THE RESTAURANT
AND 12 IN THE MOTOR LODGE.  OF THESE, ONLY NINE OF THE RESTAURANT
EMPLOYEES AND NONE OF THE MOTOR LODGE EMPLOYEES HAD PREVIOUSLY BEEN
EMPLOYED BY THE GRISSOMS.  NONE OF THE SUPERVISORY PERSONNEL EMPLOYED
BY THE GRISSOMS WERE HIRED BY HOWARD JOHNSON. 

THE UNION FILED THIS ACTION IN THE STATE COURTS ON JULY 21. 
CHARACTERIZING HOWARD JOHNSON'S FAILURE TO HIRE ALL OF THE EMPLOYEES OF
THE GRISSOMS AS A "LOCKOUT" IN VIOLATION OF THE COLLECTIVE-BARGAINING
AGREEMENTS, THE UNION SOUGHT A TEMPORARY RESTRAINING ORDER ENJOINING
THIS "LOCKOUT" AND AN ORDER COMPELLING HOWARD JOHNSON AND THE GRISSOMS
TO ARBITRATE THE EXTENT OF THEIR OBLIGATIONS TO THE GRISSOM EMPLOYEES
UNDER THE BARGAINING AGREEMENTS.  THE STATE COURT GRANTED AN EX PARTE
TEMPORARY RESTRAINING ORDER, BUT THE COMPANY REFUSED TO HONOR IT,
CLAIMING THAT IT HAD NOT RECEIVED ADEQUATE NOTICE OR SERVICE, AND THE
ORDER WAS DISSOLVED AFTER A HEARING ON JULY 24. 

THE DEFENDANTS SUBSEQUENTLY REMOVED THIS ACTION TO THE FEDERAL
COURTS ON THE GROUND THAT IT WAS BROUGHT UNDER 301 OF THE LABOR,
MANAGEMENT RELATIONS ACT, 29 U.S.C. 185.  AT A HEARING BEFORE THE
DISTRICT COURT ON AUGUST 7, THE GRISSOMS ADMITTED THAT THEY WERE
REQUIRED TO ARBITRATE IN ACCORDANCE WITH THE TERMS OF THE COLLECTIVE
BARGAINING AGREEMENTS THEY HAD SIGNED AND THAT AN ORDER COMPELLING
ARBITRATION SHOULD ISSUE.  ON AUGUST 22, THE DISTRICT COURT, IN A
MEMORANDUM OPINION UNOFICIALLY REPORTED AT 81 L.R.R.M. 2329 (ED MICH.
1972), HELD THAT HOWARD JOHNSON WAS ALSO REQUIRED TO ARBITRATE THE
EXTENT OF ITS OBLIGATIONS TO THE FORMER GRISSOM EMPLOYEES.  THE COURT
DENIED, HOWEVER, THE UNION'S MOTION FOR A PRELIMINARY INJUNCTION
REQUIRING THE COMPANY TO HIRE ALL THE FORMER GRISSOM EMPLOYEES, AND
GRANTED A STAY OF ITS ARBITRATION ORDER PENDING APPEAL.  HOWARD JOHNSON
APPEALED THE ORDER COMPELLING ARBITRATION, BUT THE COURT OF APPEALS
AFFIRMED.  482 F.2D 489 (CA6 1973).  WE GRANTED CERTIORARI, 414 U.S.
1091 (1973), TO CONSIDER THE IMPORTANT LABOR LAW QUESTION PRESENTED. 
WE REVERSE. 

BOTH COURTS BELOW RELIED HEAVILY ON THIS COURT'S DECISION IN JOHN
WILEY & SONS V. LIVINGSTON, 376 U.S. 543 (1964).  IN WILEY, THE UNION
REPRESENTING THE EMPLOYEES OF A CORPORATION WHICH HAD DISAPPEARED
THROUGH A MERGER SOUGHT TO COMPEL THE SURVIVING CORPORATION, WHICH HAD
HIRED ALL OF THE MERGED CORPORATION'S EMPLOYEES AND CONTINUED TO
OPERATE THE ENTERPRISE IN A SUBSTANTIALLY IDENTICAL FORM AFTER THE
MERGER, TO ARBITRATE UNDER THE MERGED CORPORATION'S COLLECTIVE
BARGAINING AGREEMENT.  AS WILEY WAS THIS COURT'S FIRST EXPERIENCE WITH
THE DIFFICULT "SUCCESSORSHIP"  QUESTION, ITS HOLDING WAS PROPERLY
CAUTIOUS AND NARROW: 

"WE HOLD THAT THE DISAPPEARANCE BY MERGER OF A CORPORATE EMPLOYER
WHICH HAS ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT WITH A UNION
DOES NOT AUTOMATICALLY TERMINATE ALL RIGHTS OF THE EMPLOYEES COVERED BY
THE AGREEMENT, AND THAT, IN APPROPRIATE CIRCUMSTANCES, PRESENT HERE,
THE SUCCESSOR EMPLOYER MAY BE REQUIRED TO ARBITRATE WITH THE UNION
UNDER THE AGREEMENT."  ID., AT 548.  MR. JUSTICE HARLAN, WRITING FOR
THE COURT, EXPHASIZED "THE CENTRAL ROLE OF ARBITRATION IN EFFECTUATING
NATIONAL LABOR POLICY" AND PREVENTING INDUSTRIAL STRIFE, AND THE NEED
TO AFFORD SOME PROTECTION TO THE INTERESTS OF THE EMPLOYEES DURING A
CHANGE OF CORPORATE OWNERSHIP.  ID., AT 549. 

THE COURTS BELOW RECOGNIZED THAT THE REASONING OF WILEY WAS TO SOME
EXTENT INCONSISTENT WITH OUR MORE RECENT DECISION IN NLRB V. BURNS
INTERNATIONAL SECURITY SERVICES, 406 U.S. 272 (1972).  BURNS WAS THE
SUCCESSFUL BIDDER ON A CONTRACT TO PROVIDE SECURITY SERVICES AT A
LOCKHEED AIRCRAFT PLANT, AND TOOK A MAJORITY OF ITS EMPLOYEES FROM THE
RANKS OF THE GUARDS EMPLOYED AT THE PLANT BY THE PREVIOUS CONTRACTOR,
WACKENHUT.  IN REFUSING TO ENFORCE THE BOARD'S ORDER FINDING THAT
BURNS' FAILURE TO HONOR THE SUBSTANTIVE PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT NEGOTIATED WITH WACKENHUT WAS AN UNFAIR LABOR
PRACTICE, WE EMPHASIZED THAT FREEDOM OF COLLECTIVE BARGAINING-
"'PRIVATE BARGAINING UNDER GOVERNMENTAL SUPERVISION OF THE PROCEDURE
ALONE, WITHOUT ANY OFFICIAL COMPULSION OVER THE ACTUAL TERMS OF THE
CONTRACT'--WAS A "FUNDAMENTAL PREMISE'" OF THE FEDERAL LABOR LAWS, ID.,
AT 287, QUOTING H. K. PORTER CO. V. NLRB, 397 U.S. 99, 108 (1970), AND
THAT IT WAS THEREFORE IMPROPER TO HOLD BURNS TO THE SUBSTANTIVE TERMS
OF A COLLECTIVE-BARGAINING AGREEMENT WHICH IT HAD NEITHER EXPRESSLY NOR
IMPLIEDLY ASSUMED.  BURNS ALSO STRESSED THAT HOLDING A NEW EMPLOYER
BOUND BY THE SUBSTANTIVE TERMS OF THE PRE-EXISTING COLLECTIVE
BARGAINING AGREEMENT MIGHT INHIBIT THE FREE TRANSFER OF CAPITAL, AND
THAT NEW EMPLOYERS MUST BE FREE TO MAKE SUBSTANTIAL CHANGES IN THE
OPERATION OF THE ENTERPRISE.  406 U.S., AT 287 - 288. 

THE COURTS BELOW HELD THAT WILEY RATHER THAN BURNS WAS CONTROLLING
HERE ON THE GROUND THAT BURNS INVOLVED AN NLRB ORDER HOLDING THE
EMPLOYER BOUND BY THE SUBSTANTIVE TERMS OF THE COLLECTIVE-BARGAINING
AGREEMENT, WHEREAS THIS CASE, LIKE WILEY, INVOLVED A 301 SUIT TO COMPEL
ARBITRATION.  ALTHOUGH THIS DISTINCTION WAS IN FACT SUGGESTED BY THE
COURT'S OPINION IN BURNS, SEE ID., AT 285 - 286, WE DO NOT BELIEVE THAT
THE FUNDAMENTAL POLICIES OUTLINED IN BURNS CAN BE SO LIGHTLY
DISREGARDED.  IN TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448 (1957),
THIS COURT HELD THAT 301 OF THE LABOR MANAGEMENT RELATIONS ACT
AUTHORIZED THE FEDERAL COURTS TO DEVELOP A FEDERAL COMMON LAW REGARDING
ENFORCEMENT OF COLLECTIVE-BARGAINING AGREEMENTS.  BUT LINCOLN MILLS DID
NOT ENVISION ANY FREE-WHEELING INQUIRY INTO WHAT THE FEDERAL COURTS
MIGHT FIND TO BE THE MOST DESIRABLE RULE, IRRESPECTIVE OF CONGRESSIONAL
PRONOUNCEMENTS.  RATHER, LINCOLN MILLS MAKES CLEAR THAT THIS FEDERAL
COMMON LAW MUST BE "FASHIONED) FROM THE POLICY OF OUR NATIONAL LABOR
LAWS."  ID., AT 456.  MR. JUSTICE DOUGLAS DESCRIBED THE PROCESS OF
ANALYSIS TO BE EMPLOYED: 

"THE LABOR MANAGEMENT RELATIONS ACT EXPRESSLY FURNISHES SOME
SUBSTANTIVE LAW.  IT POINTS OUT WHAT THE PARTIES MAY OR MAY NOT DO IN
CERTAIN SITUATIONS.  OTHER PROBLEMS WILL LIE IN THE PENUMBRA OF EXPRESS
STATUTORY MANDATES.  SOME WILL LACK EXPRESS STATUTORY SANCTION BUT WILL
BE SOLVED BY LOOKING AT THE POLICY OF THE LEGISLATION AND FASHIONING A
REMEDY THAT WILL EFFECTUATE THAT POLICY."  ID., AT 457.  IT WOULD BE
PLAINLY INCONSISTENT WITH THIS VIEW TO SAY THAT THE BASIC POLICIES
FOUND CONTROLLING IN AN UNFAIR LABOR PRACTICE CONTEXT MAY BE
DISREGARDED BY THE COURTS IN A SUIT UNDER 301, AND THUS TO PERMIT THE
RIGHTS ENJOYED BY THE NEW EMPLOYER IN A SUCCESSORSHIP CONTEXT TO DEPEND
UPON THE FORUM IN WHICH THE UNION PRESSES ITS CLAIMS.  /2/  CLEARLY THE
REASONING OF BURNS MUST BE TAKEN INTO ACCOUNT HERE. 

WE FIND IT UNNECESSARY, HOWEVER, TO DECIDE IN THE CIRCUMSTANCES OF
THIS CASE WHETHER THERE IS ANY IRRECONCILABLE CONFLICT BETWEEN WILEY
AND BURNS.  WE BELIEVE THAT EVEN ON ITS OWN TERMS, WILEY DOES NOT
SUPPORT THE DECISION OF THE COURTS BELOW.  THE COURT IN BURNS,
RECOGNIZED THAT ITS DECISION "TURNED) TO A GREAT EXTENT ON THE PRECISE
FACTS INVOLVED HERE."  406 U.S., AT 274.  THE SAME OBSERVATION COULD
HAVE BEEN MADE IN WILEY, AS INDEED IT COULD BE MADE IN THIS CASE.  IN
OUR DEVELOPMENT OF THE FEDERAL COMMON LAW UNDER 301, WE MUST
NECESSARILY PROCEED CAUTIOUSLY, IN THE TRADITIONAL CASE-BY-CASE
APPROACH OF THE COMMON LAW.  PARTICULARLY IN LIGHT OF THE DIFFICULTY OF
THE SUCCESSORSHIP QUESTION, THE MYRIAD FACTUAL CIRCUMSTANCES AND LEGAL
CONTEXTS IN WHICH IT CAN ARISE, AND THE ABSENCE OF CONGRESSIONAL
GUIDANCE AS TO ITS RESOLUTION, EMPHASIS ON THE FACTS OF EACH CASE AS IT
ARISES IS ESPECIALLY APPROPRIATE.  THE COURT WAS OBVIOUSLY WELL AWARE
OF THIS IN WILEY, AS ITS GUARDED ALMOST TENTATIVE STATEMENT OF ITS
HOLDING AMPLY DEMONSTRATES. 

WHEN THE FOCUS IS PLACED ON THE FACTS OF THESE CASES, IT BECOMES
APPARENT THAT THE DECISION BELOW IS AN UNWARRANTED EXTENSION OF WILEY
BEYOND ANY FACTUAL CONTEXT IT MAY HAVE COMTEMPLATED.  ALTHOUGH IT IS
TRUE THAT BOTH WILEY AND THIS CASE INVOLVE 301 SUITS TO COMPEL
ARBITRATION, THE SIMILARITY ENDS THERE.  WILEY INVOLVED A MERGER, AS A
RESULT OF WHICH THE INITIAL EMPLOYING ENTITY COMPLETELY DISAPPEARED. 
IN CONTRAST, THIS CASE INVOLVES ONLY A SALE OF SOME ASSETS, AND THE
INITIAL EMPLOYERS REMAIN IN EXISTENCE AS VIABLE CORPORATE ENTITIES,
WITH SUBSTANTIAL REVENUES FROM THE LEASE OF THE MOTOR LODGE AND
RESTAURANT TO HOWARD JOHNSON.  ALTHOUGH WE HAVE RECOGNIZED THAT
ORDINARILY THERE IS NO BASIS FOR DISTINGUISHING AMONG MERGERS,
CONSOLIDATIONS, OR PURCHASES OF ASSETS IN THE ANALYSIS OF SUCCESSORSHIP
PROBLEMS, SEE GOLDEN STATE BOTTLING CO. V. NLRB, 414 U.S. 168, 182 -
183, N. 5 (1973), WE THINK THESE DISTINCTIONS ARE RELEVANT HERE, FOR
TWO REASONS.  FIRST, THE MERGER IN WILEY WAS CONDUCTED "AGAINST A
BACKGROUND OF STATE LAW THAT EMBODIED THE GENERAL RULE THAT IN MERGER
SITUATIONS THE SURVIVING CORPORATION IS LIABLE FOR THE OBLIGATIONS OF
THE DISAPPEARING CORPORATION," BURNS, 406 U.S., AT 286, WHICH SUGGESTS
THAT HOLDING WILEY BOUND TO ARBITRATE UNDER ITS PREDECESSOR'S
COLLECTIVE-BARGAINING AGREEMENT MAY HAVE BEEN FAIRLY WITHIN THE
REASONABLE EXPECTATIONS OF THE PARTIES.  SECOND, THE DISAPPEARANCE OF
THE ORIGINAL EMPLOYING ENTITY IN THE WILEY MERGER MEANT THAT UNLESS THE
UNION WERE AFFORDED SOME REMEDY AGAINST WILEY, IT WOULD HAVE NO MEANS
TO ENFORCE THE OBLIGATIONS VOLUNTARILY UNDERTAKEN BY THE MERGED
CORPORATION, TO THE EXTENT THAT THOSE OBLIGATIONS VESTED PRIOR TO THE
MERGER OR TO THE EXTENT THAT ITS PROMISES WERE INTENDED TO SURVIVE A
CHANGE OF OWNERSHIP.  HERE, IN CONTRAST, BECAUSE THE GRISSOM
CORPORATIONS CONTINUE AS VIABLE ENTITIES WITH SUBSTANTIAL RETAINED
ASSETS, THE UNION DOES HAVE A REALISTIC REMEDY TO ENFORCE THEIR
CONTRACTUAL OBLIGATIONS.  INDEED, THE GRISSOMS HAVE AGREED TO ARBITRATE
THE EXTENT OF THEIR LIABILITY TO THE UNION AND THEIR FORMER EMPLOYEES;
PRESUMABLY THIS ARBITRATION WILL EXPLORE THE QUESTION WHETHER THE
GRISSOMS BREACHED THE SUCCESSORSHIP PROVISIONS OF THEIR COLLECTIVE
BARGAINING AGREEMENTS, AND WHAT THE REMEDY FOR THIS BREACH MIGHT BE. 
/3/     EVEN MORE IMPORTANT, IN WILEY THE SURVIVING CORPORATION HIRED
ALL OF THE EMPLOYEES OF THE DISAPPEARING CORPORATION.  ALTHOUGH, UNDER
BURNS, THE SURVIVING CORPORATION MAY HAVE BEEN ENTITLED TO MAKE
SUBSTANTIAL CHANGES IN ITS OPERATION OF THE ENTERPRISE, THE PLAIN FACT
IS THAT IT DID NOT.  AS THE ARBITRATOR IN WILEY SUBSEQUENTLY STATED: 

"ALTHOUGH THE WILEY MERGER WAS EFFECTIVE ON OCTOBER 2, 1961, THE
FORMER INTERSCIENCE EMPLOYEES CONTINUED TO PERFORM THE SAME WORK ON THE
SAME PRODUCTS UNDER THE SAME MANAGEMENT AT THE SAME WORK PLACE AS
BEFORE THE CHANGE IN THE CORPORATE EMPLOYER."  INTERSCIENCE
ENCYCLOPEDIA, INC., 55 LAB.  ARB.  210, 218 (1970).  /4/ THE CLAIMS
WHICH THE UNION SOUGHT TO COMPEL WILEY TO ARBITRATE WERE THUS THE
CLAIMS OF WILEY'S EMPLOYEES AS TO THE BENEFITS THEY WERE ENTITLED TO
RECEIVE IN CONNECTION WITH THEIR EMPLOYMENT.  IT WAS ON THIS BASIS THAT
THE COURT IN WILEY FOUND THAT THERE WAS THE "SUBSTANTIAL CONTINUITY OF
IDENTITY IN THE BUSINESS ENTERPRISE."  376 U.S., AT 551, WHICH IT HELD
NECESSARY BEFORE THE SUCCESSOR EMPLOYER COULD BE COMPELLED TO
ARBITRATE. 

HERE, HOWEVER, HOWARD JOHNSON DECIDED TO SELECT AND HIRE ITS OWN
INDEPENDENT WORK FORCE TO COMMENCE ITS OPERATION OF THE RESTAURANT AND
MOTOR LODGE.  /5/  IT THEREFORE HIRED ONLY NINE OF THE 53 FORMER
GRISSOM EMPLOYEES AND NONE OF THE GRISSOM SUPERVISORS.  THE PRIMARY
PURPOSE OF THE UNION IN SEEKING ARBITRATION HERE WITH HOWARD JOHNSON IS
NOT TO PROTECT THE RIGHTS OF HOWARD JOHNSON'S EMPLOYEES; RATHER, THE
UNION PRIMARILY SEEKS ARBITRATION ON BEHALF OF THE FORMER GRISSOM
EMPLOYEES WHO WERE NOT HIRED BY HOWARD JOHNSON.  IT IS THE UNION'S
POSITION THAT HOWARD JOHNSON WAS BOUND BY THE PRE-EXISTING COLLECTIVE
BARGAINING AGREEMENT TO EMPLOY ALL OF THESE FORMER GRISSOM EMPLOYEES,
EXCEPT THOSE WHO COULD BE DISMISSED IN ACCORDANCE WITH THE SENIORITY
PROVISION.  IT IS MANIFEST FROM THE UNION'S EFFORTS TO OBTAIN
INJUNCTIVE RELIEF REQUIRING THE COMPANY TO HIRE ALL OF THESE EMPLOYEES
THAT THIS IS THE HEART OF THE CONTROVERSY HERE.  INDEED, AT ORAL
ARGUMENT, THE UNION CONCEDED THAT IT WOULD BE MAKING THE SAME ARGUMENT
HERE IF HOWARD JOHNSON HAD NOT HIRED ANY OF THE FORMER GRISSOM
EMPLOYEES, /6/  AND THAT WHAT WAS MOST IMPORTANT TO THE UNION WAS THE
PROSPECT THAT THE ARBITRATOR MIGHT ORDER THE COMPANY TO HIRE ALL OF
THESE EMPLOYEES.  /7/ 

WHAT THE UNION SEEKS HERE IS COMPLETELY AT ODDS WITH THE BASIC
PRINCIPLES THIS COURT ELABORATED IN BURNS.  WE FOUND THERE THAT NOTHING
IN THE FEDERAL LABOR LAWS "REQUIRES THAT AN EMPLOYER.  . . WHO
PURCHASES THE ASSETS OF A BUSINESS BE OBLIGATED TO HIRE ALL OF THE
EMPLOYEES OF THE PREDECESSOR THOUGH IT IS POSSIBLE THAT SUCH AN
OBLIGATION MIGHT BE ASSUMED BY THE EMPLOYER."  406 U.S., AT 280 N. 5. 
SEE ALSO GOLDEN STATE BOTTLING CO. V. NLRB, 414 U.S., AT 184 N. 6. 
BURNS EMPHASIZED THAT "(A) POTENTIAL EMPLOYER MAY BE WILLING TO TAKE
OVER A MORIBUND BUSINESS ONLY IF HE CAN MAKE CHANGES IN CORPORATE
STRUCTURE, COMPOSITION OF THE LABOR FORCE, . . . AND NATURE OF
SUPERVISION."  406 U.S., AT 287 - 288.  WE REJECTED THE BOARD'S
POSITION IN PART BECAUSE "(IT WOULD SEEMINGLY FOLLOW THAT EMPLOYEES OF
THE PREDECESSOR WOULD BE DEEMED EMPLOYEES OF THE SUCCESSOR,
DISCHARGEABLE ONLY IN ACCORDANCE WITH PROVISIONS OF THE CONTRACT AND
SUBJECT TO THE GRIEVANCE AND ARBITRATION PROVISIONS THEREOF.  BURNS
WOULD NOT HAVE BEEN FREE TO REPLACE WACKENHUT'S GUARDS WITH ITS OWN
EXCEPT AS THE CONTRACT PERMITTED."  ID., AT 288.  CLEARLY, BURNS
ESTABLISHES THAT HOWARD JOHNSON HAD THE RIGHT NOT TO HIRE ANY OF THE
FORMER GRISSOM EMPLOYEES, IF IT SO DESIRED.  /8/  THE UNION'S EFFORT TO
CIRCUMVENT THIS HOLDING BY ASSERTING ITS CLAIMS IN A 301 SUIT TO COMPEL
ARBITRATION RATHER THAN IN AN UNFAIR LABOR PRACTICE CONTEXT CANNOT BE
PERMITTED. 

WE DO NOT BELIEVE THAT WILEY REQUIRES A SUCCESSOR EMPLOYER TO
ARBITRATE IN THE CIRCUMSTANCES OF THIS CASE.  /9/  THE COURT THERE HELD
THAT ARBITRATION COULD NOT BE COMPELLED UNLESS THERE WAS "SUBSTANTIAL
CONTINUITY OF IDENTITY IN THE BUSINESS ENTERPRISE" BEFORE AND AFTER A
CHANGE OF OWNERSHIP, FOR OTHERWISE THE DUTY TO ARBITRATE WOULD BE
"SOMETHING IMPOSED FROM WITHOUT, NOT REASONABLY TO BE FOUND IN THE
PARTICULAR BARGAINING AGREEMENT AND THE ACTS OF THE PARTIES INVOLVED." 
376 U.S., AT 551.  THIS CONTINUITY OF IDENTITY IN THE BUSINESS
ENTERPRISE NECESSARILY INCLUDES, WE THINK, A SUBSTANTIAL CONTINUITY IN
THE IDENTITY OF THE WORK FORCE ACROSS THE CHANGE IN OWNERSHIP.  THE
WILEY COURT SEEMINGLY RECOGNIZED THIS, AS IT FOUND THE REQUISITE
CONTINUITY PRESENT THERE IN RELIANCE ON THE "WHOLESALE TRANSFER" OF
INTERSCIENCE EMPLOYEES TO WILEY.  IBID.  THIS VIEW IS REFLECTED IN THE
EMPHASIS MOST OF THE LOWER COURTS HAVE PLACED ON WHETHER THE SUCCESSOR
EMPLOYER HIRES A MAJORITY OF THE PREDECESSOR'S EMPLOYEES IN DETERMINING
THE LEGAL OBLIGATIONS OF THE SUCCESSOR IN 301 SUITS UNDER WILEY.  /10/
THIS INTERPRETATION OF WILEY IS CONSISTENT ALSO WITH THE COURT'S
CONCERN WITH AFFORDING PROTECTION TO THOSE EMPLOYEES WHO ARE IN FACT
RETAINED IN "(THE TRANSITION FROM ONE CORPORATE ORGANIZATION TO
ANOTHER" FROM SUDDEN CHANGES IN THE TERMS AND CONDITIONS OF THEIR
EMPLOYMENT, AND WITH ITS BELIEF THAT INDUSTRIAL STRIFE WOULD BE AVOIDED
IF THESE EMPLOYEES' CLAIMS WERE RESOLVED BY ARBITRATION RATHER THAN BY
"'THE RELATIVE STRENGTH . . . OF THE CONTENDING FORCES.'"  ID., AT 549,
QUOTING UNITED STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., 363 U.S.
574, 580 (1960).  AT THE SAME TIME, IT RECOGNIZES THAT THE EMPLOYEES OF
THE TERMINATING EMPLOYER HAVE NO LEGAL RIGHT TO CONTINUED EMPLOYMENT
WITH THE NEW EMPLOYER, AND AVOIDS THE DIFFICULTIES INHERENT IN THE
UNION'S POSITION IN THIS CASE.  THIS HOLDING IS COMPELLED, IN OUR VIEW,
IF THE PROTECTION AFFORDED EMPLOYEE INTERESTS IN A CHANGE OF OWNERSHIP
BY WILEY IS TO BE RECONCILED WITH THE NEW EMPLOYER'S RIGHT TO OPERATE
THE ENTERPRISE WITH HIS OWN INDEPENDENT LABOR FORCE. 

SINCE THERE WAS PLAINLY NO SUBSTANTIAL CONTINUITY OF IDENTY IN THE
WORK FORCE HIRED BY HOWARD JOHNSON WITH THAT OF THE GRISSOMS, AND NO
EXPRESS OR IMPLIED ASSUMPTION OF THE AGREEMENT TO ARBITRATE, THE COURTS
BELOW ERRED IN COMPELLING THE COMPANY TO ARBITRATE THE EXTENT OF ITS
OBLIGATIONS TO THE FORMER GRISSOM EMPLOYEES.  ACCORDINGLY, THE JUDGMENT
OF THE COURT OF APPEALS MUST BE

        REVERSED. 

/1/  ACTUALLY, EMPLOYEES AT THE RESTAURANT WERE OFFICIALLY
REPRESENTED BY THE HOTEL & RESTAURANT EMPLOYEES & BARTENDERS
INTERNATIONAL UNION, WHILE EMPLOYEES AT THE MOTOR LODGE WERE
REPRESENTED BY LOCAL 705 OF THE HOTEL, MOTEL & RESTAURANT EMPLOYEES
UNION.  AS THE COURT OF APPEALS OBSERVED, HOWEVER, "(WHILE THE UNIONS
NAMED IN THE TWO AGREEMENTS BEAR DISTINCT NAMES THEY ARE APPARENTLY
IDENTICAL IN INTEREST AND GOVERNANCE."  482 F.2D 489, 491 N. 3.  BOTH
HAVE BEEN REPRESENTED THROUGHOUT THIS LITIGATION BY THE RESPONDENT
DETROIT LOCAL JOINT EXECUTIVE BOARD. 

/2/  SEE THE SUPREME COURT, 1971 TERM, 86 HARV. L. REV. 1,255 - 256
(1972); CHRISTENSEN, SUCCESSORSHIPS, UNIT CHANGES, AND THE BARGAINING
TABLE, IN SOUTHWESTERN LEG.  FOUND., 19TH INSTITUTE ON LABOR LAW, LABOR
LAW DEVELOPMENTS 1973, PP. 197, 205 - 206. 

/3/  THE UNION APPARENTLY DID NOT EXPLORE ANOTHER REMEDY WHICH MIGHT
HAVE BEEN AVAILABLE TO IT PRIOR TO THE SALE, I. E., MOVING TO ENJOIN
THE SALE TO HOWARD JOHNSON ON THE GROUND THAT THIS WAS A BREACH BY THE
GRISSOMS OF THE SUCCESSORSHIP CLAUSES IN THE COLLECTIVE-BARGAINING
AGREEMENTS.  SEE NATIONAL MARITIME UNION V. COMMERCE TANKERS CORP., 325
F.SUPP.  360 (SDNY 1971), VACATED, 457 F.2D 1127 (CA2 1972).  THERE
MERE EXISTENCE OF THE SUCCESSORSHIP CLAUSES IN THE BARGAINING
AGREEMENTS BETWEEN THE UNION AND THE GRISSOMS, HOWEVER, CANNOT BIND
HOWARD JOHNSON EITHER TO THE SUBSTANTIVE TERMS OF THE AGREEMENTS OR TO
THE ARBITRATION CLAUSES THEREOF, ABSENT THE CONTINUITY REQUIRED BY
WILEY, WHEN IT IS PERFECTLY CLEAR THE COMPANY REFUSED TO ASSUME ANY
OBLIGATIONS UNDER THE AGREEMENTS. 

/4/  SUBSEQUENTLY, THE INTERSCIENCE PLANT WAS CLOSED AND THE FORMER
INTERSCIENCE EMPLOYEES WERE INTEGRATED INTO WILEY'S WORK FORCE.  THE
ARBITRATOR, RELYING IN PART ON THE NLRB'S DECISION IN BURNS, HELD THAT
THE PROVISIONS OF THE INTERSCIENCE COLLECTIVE-BARGAINING AGREEMENT
REMAINED IN EFFECT FOR AS LONG AS WILEY CONTINUED TO OPERATE THE FORMER
INTERSCIENCE ENTERPRISE AS A UNIT IN SUBSTANTIALLY THE SAME MANNER AS
PRIOR TO THE MERGER, BUT THAT THE INTEGRATION OF THE FORMER
INTERSCIENCE EMPLOYEES INTO WILEY'S OPERATIONS DESTROYED THIS
CONTINUITY OF IDENTITY AND TERMINATED THE EFFECTIVENESS OF THE
BARGAINING AGREEMENT.  55 LAB.  ARB., AT 218 - 220. 

/5/  IT IS IMPORTANT TO EMPHASIZE THAT THIS IS NOT A CASE WHERE THE
SUCCESSOR CORPORATION IS THE "ALTER EGO" OF THE PREDECESSOR, WHERE IT
IS "MERELY A DISGUISED CONTINUANCE OF THE OLD EMPLOYER."  SOUTHPORT
PETROLEUM CO. V. NLRB, 315 U.S. 100, 106 (1942).  SUCH CASES INVOLVE A
MERE TECHNICAL CHANGE IN THE STRUCTURE OR IDENTITY OF THE EMPLOYING
ENTITY, FREQUENTLY TO AVOID THE EFFECT OF THE LABOR LAWS, WITHOUT ANY
SUBSTANTIAL CHANGE IN ITS OWNERSHIP OR MANAGEMENT.  IN THESE
CIRCUMSTANCES, THE COURTS HAD LITTLE DIFFICULTY HOLDING THAT THE
SUCCESSOR IS IN REALITY THE SAME EMPLOYER AND IS SUBJECT TO ALL THE
LEGAL AND CONTRACTUAL OBLIGATIONS OF THE PREDECESSOR.  SEE SOUTHPORT
PETROLEUM CO. V. NLRB, SUPRA; NLRB V. HERMAN BROS. PET SUPPLY, 325 F.2D
68 (CA6 1963); NLRB V. OZARK HARDWOOD CO., 282 F.2D 1 (AC8 1960); NLRB
V. LEWIS, 246 F.2D 886 (CA9 1957). 

THERE IS NOT THE SLIGHTEST SUGGESTION IN THIS CASE THAT THE SALE OF
THE RESTAURANT AND MOTOR LODGE BY THE GRISSOMS TO HOWARD JOHNSON WAS IN
ANY SENSE A PAPER TRANSACTION WITHOUT MEANINGFUL IMPACT ON THE
OWNERSHIP OR OPERATION OF THE ENTERPRISE.  HOWARD JOHNSON HAD NO
OWNERSHIP INTEREST IN THE RESTAURANT OR MOTOR LODGE PRIOR TO THIS
TRANSACTION.  ALTHOUGH THE GRISSOMS'  OPERATION OF THE ENTERPRISE AS
HOWARD JOHNSON'S FRANCHISEE WAS SUBJECT TO SUBSTANTIAL RESTRAINTS
IMPOSED BY THE FRANCHISE AGREEMENTS ON SOME ASPECTS OF THE BUSINESS,
THE FRANCHISE AGREEMENTS IMPOSED NO RESTRICTIONS ON THE GRISSOMS'
HIRING OR LABOR RELATIONS POLICIES.  THERE IS NOTHING IN THE RECORD TO
INDICATE THAT HOWARD JOHNSON HAD HAD ANY PREVIOUS DEALINGS WITH THE
UNION, OR HAD PARTICIPATED IN ANY WAY IN NEGOTIATING OR APPROVING THE
COLLECTIVE-BARGAINING AGREEMENTS. 

/6/  "QUESTION:  . . . YOU SAY THE MAN IS A SUCCESSOR AND THEREFORE
THERE NEVER WAS A BREAK IN HIS CONTRACTUAL OBLIGATIONS.  YOU'VE STILL
GOT TO MAKE THE CASE FOR THE SUCCESSORSHIP. 

"MR. GOLD (FOR THE UNION):  WELL, THAT'S RIGHT.  I THINK OUR FIRST
DUTY IS TO SHOW THAT THERE IS A CONTINUITY OF THE BUSINESS ENTERPRISE
WHICH MAKES IT PROPER TO SAY THAT THE SECOND EMPLOYER IS A SUCCESSOR. 

"WHERE THERE ISN'T A CONTINUITY, THEN HE IS NOT A SUCCESSOR AND HE
IS NOT BOUND BY THE ARBITRATION CLAUSE OR ANY OF THE OTHER POTENTIAL
OBLIGATIONS WHICH ARE IN THE AGREEMENT. 

"QUESTION:  BUT IN DECIDING SUCCESSORSHIP, I TAKE IT YOU PUT ASIDE
THE FACT THAT HE MAY NOT HAVE HIRED ANY OF THE OLD EMPLOYEES? 

"MR. GOLD:  YES, YOUR HONOR . . . ."  TR. OF ORAL ARG. 37 - 38. 

/7/  "QUESTION:  WELL, ISN'T PART OF YOUR SUBMISSION . . . THAT THE
ARBITRATOR COULD DECIDE TO PUT ALL 41 (EMPLOYEES WHO HAD BEEN HIRED BY
HOWARD JOHNSON) BACK TO WORK? 

"MR. GOLD:  YES, YOUR HONOR. 

"QUESTION:  WHICH MEANS THAT THE SUCCESSOR DOES NOT HAVE THE RIGHT
NOT TO HIRE, THAT HE MUST PERHAPS TAKE OVER THE OLD EMPLOYEES? 

"MR. GOLD:  YES, YOUR HONOR. 

        .          .          .          . 

"QUESTION:  . . . (YOU STILL SAY THAT HE MAY BRING HIS OWN

  EMPLOYEES ALONG. 

"MR. GOLD:  WELL, NO, ONE OF THE RULES IS THAT THE JUST CAUSE AND
SENIORITY PROVISIONS OF THE AGREEMENT APPLY.  THAT IS PROBABLY THE MOST
IMPORTANT ASPECT OF THE BARGAIN FROM THE UNION AND THE EMPLOYEES'
STANDPOINT.  AND IF-- 

"QUESTION:  YOU CERTAINLY ARE TAKING QUITE A BITE OUT OF BURNS, I
SUPPOSE, IN THESE CASES."  TR. OF ORAL ARG. 27, 33. 

/8/ SEE CROTONA SERVICE CORP., 200 N.L.R.B. NO. 97 (1972).  OF
COURSE, IT IS AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO DISCRIMINATE
IN HIRING OR RETENTION OF EMPLOYEES ON THE BASIS OF UNION MEMBERSHIP OR
ACTIVITY UNDER 8(A)(3) OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C.
158 (A)(3).  THUS, A NEW OWNER COULD NOT REFUSE TO HIRE THE EMPLOYEES
OF HIS PREDECESSOR SOLELY BECAUSE THEY WERE UNION MEMBERS OR TO AVOID
HAVING TO RECOGNIZE THE UNION.  SEE NLRB V. BURNS INTERNATIONAL
SECURITY SERVICES, 406 U.S. 272, 280 - 281, N. 5 (1972); K.B. & J.
YOUNG'S SUPER MARKETS V. NLRB, 377 F.2D 463 (CA9), CERT. DENIED, 389
U.S. 841 (1967); TRI STATE MAINTENANCE CORP. V. NLRB, 132 U.S.APP.D.C.
368,368, 408 F.2D 171 (1968).  THERE IS NO SUGGESTION IN THIS CASE THAT
HOWARD JOHNSON IN ANY WAY DISCRIMINATED IN ITS HIRING AGAINST THE
FORMER GRISSOM EMPLOYEES BECAUSE OF THEIR UNION MEMBERSHIP, ACTIVITY,
OR REPRESENTATION. 

/9/  THE COURT OF APPEALS STATED THAT "(THE FIRST QUESTION WE MUST
FACE IS WHETHER HOWARD JOHNSON IS A SUCCESSOR EMPLOYER," 482 F.2D, AT
492, AND, FINDING THAT IT WAS, THAT THE NEXT QUESTION WAS WHETHER A
SUCCESSOR IS REQUIRED TO ARBITRATE UNDER THE COLLECTIVE-BARGAINING
AGREEMENT OF ITS PREDECESSOR, ID., AT 494, WHICH THE COURT FOUND WAS
RESOLVED BY WILEY.  WE DO NOT BELIEVE THAT THIS ARTIFICIAL DIVISION
BETWEEN THESE QUESTIONS IS A HELPFUL OR APPROPRIATE WAY TO APPROACH
THESE PROBLEMS.  THE QUESTION WHETHER HOWARD JOHNSON IS A "SUCCESSOR"
IS SIMPLY NOT MEANINGFUL IN THE ABSTRACT.  HOWARD JOHNSON IS OF COURSE
A SUCCESSOR EMPLOYER IN THE SENSE THAT IT SUCCEEDED TO OPERATION OF A
RESTAURANT AND MOTOR LODGE FORMERLY OPERATED BY THE GRISSOMS.  BUT THE
REAL QUESTION IN EACH OF THESE "SUCCESSORSHIP" CASES IS, ON THE
PARTICULAR FACTS, WHAT ARE THE LEGAL OBLIGATIONS OF THE NEW EMPLOYER TO
THE EMPLOYEES OF THE FORMER OWNER OR THEIR REPRESENTATIVE.  THE ANSWER
TO THIS INQUIRY REQUIRES ANALYSIS OF THE INTERESTS OF THE NEW EMPLOYER
AND THE EMPLOYEES AND OF THE POLICIES OF THE LABOR LAWS IN LIGHT OF THE
FACTS OF EACH CASE AND THE PARTICULAR LEGAL OBLIGATION WHICH IS AT
ISSUE, WHETHER IT BE THE DUTY TO RECOGNIZE AND BARGAIN WITH THE UNION,
THE DUTY TO REMEDY UNFAIR LABOR PRACTICES, THE DUTY TO ARBITRATE, ETC.
THERE IS, AND CAN BE, NO SINGLE DEFINITION OF "SUCCESSOR" WHICH IS
APPLICABLE IN EVERY LEGAL CONTEXT.  A NEW EMPLOYER, IN OTHER WORDS, MAY
BE A SUCCESSOR FOR SOME PURPOSES AND NOT FOR OTHERS.  SEE GOLDEN STATE
BOTTLING CO. V. NLRB, 414 U.S. 168, 181 (1973); INTERNATIONAL ASSN. OF
MACHINISTS V. NLRB, 134 U.S.APP.D.C. 239, 244, 414 F.2D 1135, 1140
(1969) (LEVENTHAL, J., CONCURRING); GOLDBERG, THE LABOR LAW OBLIGATIONS
OF A SUCCESSOR EMPLOYER, 63 NW.U.L. REV. 735 (1969); COMMENT,
CONTRACTUAL SUCCESSORSHIP:  THE IMPACT OF BURNS, 40 U.CHI.L.REV.  617,
619 N. 10 (1973). 

THUS, OUR HOLDING TODAY IS THAT HOWARD JOHNSON WAS NOT REQUIRED TO
ARBITRATE WITH THE UNION REPRESENTING THE FORMER GRISSOM EMPLOYEES IN
THE CIRCUMSTANCES OF THIS CASE.  WE NECESSARILY DO NOT DECIDE WHETHER
HOWARD JOHNSON IS OR IS NOT A "SUCCESSOR EMPLOYER" FOR ANY OTHER
PURPOSE. 

/10/  SEE PRINTING SPECIALITIES UNION V. PRIDE PAPERS AARONSON BROS.
PAPER CORP., 445 F.2D 361, 363 - 364 (CA2 1971); WACKENHUT CORP. V.
PLANT GUARD WORKERS, 332 F.2D 954, 958 (CA9 1964); INTERNATIONAL ASSN.
OF MACHINISTS V. NLRB, 134 U.S.APP.D.C., AT 244 N. 4, 414 F.2D, AT 1140
N. 4 (LEVENTHAL, J., CONCURRING); BOEING CO. V. INTERNATIONAL ASSN. OF
MACHINISTS, 351 F.SUPP.  813 (MD FLA. 1972); OWENS-ILLINOIS, INC. V.
DISTRICT 65, RETAIL, WHOLESALE, & DEPARTMENT STORE UNION, 276 F.SUPP. 
740 (SDNY 1967); LOCAL JOINT EXECUTIVE BOARD, HOTEL & RESTAURANT
EMPLOYEES V. JODEN, INC., 262 F.SUPP.  390 (MASS. 1966).  SEE ALSO
COMMENT, SUPRA, N. 9, AT 621. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE PETITIONER, HOWARD JOHNSON, IN 1959 AND 1960 ENTERED INTO
FRANCHISE AGREEMENTS WITH P. L. GRISSOM, P. L. GRISSOM & SON, CHARLES
T. GRISSOM, BEN BIBB, AND THE BELLEVILLE RESTAURANT COMPANY
(HEREINAFTER COLLECTIVELY GRISSOMS) UNDER WHICH THE FRANCHISE OPERATED
A HOWARD JOHNSON RESTAURANT AND MOTOR LODGE.  IN 1968 GRISSOMS ENTERED
INTO COLLECTIVE-BARGAINING AGREEMENTS WITH THE RESPONDENT UNION
AFFECTING BOTH THEIR RESTAURANT AND MOTEL EMPLOYEES.  ON JUNE 16, 1972,
GRISSOMS SOLD THE BUSINESS TO HOWARD JOHNSON, THE TRANSFER OF
MANAGEMENT TO TAKE PLACE ON JULY 24, 1972.  ON JUNE 28, HOWARD JOHNSON
NOTIFIED GRISSOMS THAT IT WOULD NOT RECOGNIZE OR ASSUME THEIR LABOR
AGREEMENTS AND ON JULY 9, 1972, GRISSOMS GAVE NOTICE TO THEIR EMPLOYEES
THAT THEY WOULD BE TERMINATED AT MIDNIGHT, JULY 23.  HOWARD JOHNSON
BEGAN INTERVIEWING PROSPECTIVE EMPLOYEES IN EARLY JULY, AND WHEN IT
TOOK OVER THE OPERATION ON JULY 24 IT RETAINED ONLY NINE OF GRISSOMS'
EMPLOYEES; AT LEAST 40 WERE PERMANENTLY REPLACED.  THE UNION BROUGHT
THIS ACTION UNDER 301 OF THE LABOR MANAGEMENT RELATIONS ACT, AND THE
DISTRICT COURT ISSUED AN ORDER COMPELLING PETITIONER TO ARBITRATE.  THE
COURT OF APPEALS AFFIRMED, BUT TODAY THIS COURT REVERSES, HOLDING THAT
HOWARD JOHNSON WAS NOT A SUCCESSOR EMPLOYER.  I BELIEVE THAT THE
PRINCIPLES OF SUCCESSORSHIP LAID DOWN IN JOHN WILEY & SONS V.
LIVINGSTON, 376 U.S. 543, AND NLRB V. BURNS INTERNATIONAL SECURITY
SERVICES, 406 U.S. 272, REQUIRE AFFIRMANCE, AND THUS I DISSENT. 

WILEY WAS ALSO A 301 SUIT, TO COMPEL ARBITRATION.  THERE THE COMPANY
HAD MERGED WITH INTERSCIENCE, ANOTHER AND SMALLER PUBLISHER, 40 OF
WHOSE EMPLOYEES WERE REPRESENTED BY THE UNION.  THE UNION CONTENDED
THAT THE MERGER DID NOT AFFECT ITS RIGHT TO REPRESENT THESE EMPLOYEES
IN NEGOTIATIONS WITH WILEY, AND THAT WILEY WAS BOUND TO RECOGNIE
CERTAIN RIGHTS OF THESE EMPLOYEES WHICH HAD BEEN GUARANTEED IN THE
COLLECTIVE-BARGAINING AGREEMENT SIGNED BY INTERSCIENCE.  WILEY
CONTENDED THAT THE MERGER TERMINATED THE COLLECTIVE-BARGAINING
AGREEMENT FOR ALL PURPOSES AND REFUSED TO BARGAIN WITH THE UNION.  WE
HELD THAT THE UNION COULD COMPEL ARBITRATION OF THIS DISPUTE UNDER THE
ARBITRATION PROVISION OF THE COLLECTIVE-BARGAINING AGREEMENT EVEN
THOUGH WILEY HAD NEVER SIGNED THE AGREEMENT.  WE POINTED OUT THAT THE
DUTY TO ARBITRATE WILL NOT IN EVERY CASE SURVIVE A CHANGE OF OWNERSHIP,
AS WHEN "THE LACK OF ANY SUBSTANTIAL CONTINUITY OF IDENTITY IN THE
BUSINESS ENTERPRISE BEFORE AND AFTER A CHANGE WOULD MAKE A DUTY TO
ARBITRATE SOMETHING IMPOSED FROM WITHOUT, NOT REASONABLY TO BE FOUND IN
THE PARTICULAR BARGAINING AGREEMENT AND THE ACTS OF THE PARTIES
INVOLVED."  WILEY, SUPRA, AT 551.  BUT THAT WAS NOT THE CASE IN WILEY:
"(THE IMPRESSIVE POLICY CONSIDERATIONS FAVORING ARBITRATION ARE NOT
WHOLLY OVERBORNE BY THE FACT THAT WILEY DID NOT SIGN THE CONTRACT BEING
CONSTRUED.  THIS CASE CANNOT READILY BE ASSIMILATED TO THE CATEGORY OF
THOSE IN WHICH THERE IS NO CONTRACT WHATEVER, OR NONE WHICH IS
REASONABLY RELATED TO THE PARTY SOUGHT TO BE OBLIGATED."  ID., AT 550. 

IT MUST FOLLOW A FORTIORI THAT IT IS ALSO NOT THE CASE HERE.  THE
CONTRACT BETWEEN GRISSOMS AND THE UNION EXPLICITLY PROVIDED THAT
SUCCESSORS OF GRISSOMS WOULD BE BOUND, /1/  AND CERTAINLY THERE CAN BE
NO QUESTION THAT THERE WAS A SUBSTANTIAL CONTINUITY--INDEED IDENTITY-
OF THE BUSINESS OPERATION UNDER HOWARD JOHNSON, THE SUCCESSOR
EMPLOYER.  UNDER ITS FRANCHISE AGREEMENT HOWARD JOHNSON HAD SUBSTANTIAL
CONTROL OVER GRISSOMS' OPERATION OF THE BUSINESS; /2/  IT WAS NO
STRANGER TO THE ENTERPRISE IT TOOK OVER.  THE BUSINESS CONTINUED
WITHOUT INTERRUPTION AT THE SAME LOCATION, OFFERING THE SAME PRODUCTS
AND SERVICES TO THE SAME PUBLIC, UNDER THE SAME NAME AND IN THE SAME
MANNER, WITH ALMOST THE SAME NUMBER OF EMPLOYEES.  THE ONLY CHANGE WAS
HOWARD JOHNSON'S REPLACEMENT OF THE UNION MEMBERS WITH NEW PERSONNEL,
BUT AS THE COURT BELOW POINTED OUT, PETITIONER'S RELIANCE UPON THAT
FACT IS SHEER BOOTSTRAP:  "(HOWARD JOHNSON) ARGUES THAT IT NEED NOT
ARBITRATE THE REFUSAL TO HIRE GRISSOMS' EMPLOYEES BECAUSE IT IS NOT A
SUCCESSOR.  IT IS NOT A SUCCESSOR, BECAUSE IT DID NOT HIRE A MAJORITY
OF GRISSOMS' EMPLOYEES."  482 F.2D 489, 493. 

AS WE SAID IN WILEY, "(IT WOULD DEROGATE FROM 'THE FEDERAL POLICY OF
SETTLING LABOR DISPUTES BY ARBITRATION,' . . . IF A CHANGE IN THE
CORPORATE STRUCTURE OR OWNERSHIP OF A BUSINESS ENTERPRISE HAD THE
AUTOMATIC CONSEQUENCE OF REMOVING A DUTY TO ARBITRATE PREVIOUSLY
ESTABLISHED . . ."  376 U.S., AT 549. 

NLRB V. BURNS INTERNATIONAL SECURITY SERVICES, SUPRA, DOES NOT
REQUIRE ANY DIFFERENT RESULT.  THERE THE ORIGINAL EMPLOYER, WACKENHUT,
HAD A CONTRACT WITH LOCKHEED TO PROVIDE SECURITY SERVICES, AND AT THE
EXPIRATION OF THAT CONTRACT LOCKHEED TOOK BIDS ON PROVIDING THE SERVICE
AND HIRED BURNS TO REPLACE WACKENHUT.  WACKENHUT EMPLOYEES HAD BEEN
REPRESENTED BY THE UNION, BUT BURNS, WHICH HIRED 27 OF THE 42 WACKENHUT
GUARDS, REFUSED TO BARGAIN WITH THE UNION OR HONOR THE COLLECTIVE
BARGAINING AGREEMENT SIGNED BY WACKENHUT.  WE AFFIRMED THE NLRB'S ORDER
REQUIRING BURNS TO BARGAIN WITH THE UNION, BUT CONCLUDED THAT BURNS WAS
NOT BOUND BY THE SUBSTANTIVE PROVISIONS OF THE COLLECTIVE-BARGAINING
AGREEMENT BETWEEN THE UNION AND WACKENHUT.  IN DISTINGUISHING WILEY, WE
POINTED OUT IN BURNS THAT UNLIKE WILEY IT DID NOT INVOLVE A 301 SUIT TO
COMPEL ARBITRATION, AND THUS WAS WITHOUT THE SUPPORT OF THE NATIONAL
POLICY FAVORING ARBITRATION.  BURNS, SUPRA, AT 286.  MOREOVER, IN BURNS
"THERE WAS NO MERGER OR SALE OF ASSETS, AND THERE WERE NO DEALINGS
WHATSOEVER BETWEEN WACKENHUT AND BURNS.  ON THE CONTRARY, THEY WERE
COMPETITORS FOR THE SAME WORK, EACH BIDDING FOR THE SERVICE CONTRACT AT
LOCKHEED.  BURNS PURCHASED NOTHING FROM WACKENHUT AND BECAME LIABLE FOR
NONE OF ITS FINANCIAL OBLIGATIONS."  IBID. 

ALL OF THE FACTORS DISTINGUISHING BURNS AND WILEY CALL HERE FOR
AFFIRMANCE OF THE ORDER TO ARBITRATE.  THIS IS A 301 SUIT, AND HOWARD
JOHNSON DID PURCHASE THE ASSETS FROM GRISSOMS.  AS A MATTER OF FEDERAL
LABOR LAW, WHEN HOWARD JOHNSON TOOK OVER THE OPERATION THAT HAD BEEN
CONDUCTED BY ITS FRANCHISEE, IT SEEMS CLEAR THAT IT ALSO TOOK OVER THE
DUTY TO ARBITRATE UNDER THE COLLECTIVE-BARGAINING AGREEMENT WHICH
EXPRESSLY BOUND GRISSOMS'  SUCCESSORS.  ANY OTHER RESULT MAKES NONSENSE
OF THE PRINCIPLES LAID DOWN IN WILEY.  THE MAJORITY, BY MAKING THE
NUMBER OF PRIOR EMPLOYEES RETAINED BY THE SUCCESSOR THE SOLE
DETERMINATIVE FACTOR, ACCEPTS PETITIONER'S BOOTSTRAP ARGUMENT.  THE
EFFECT IS TO ALLOW ANY NEW EMPLOYER TO DETERMINE FOR HIMSELF WHETHER HE
WILL BE BOUND, BY THE SIMPLE EXPEDIENT OF ARRANGING FOR THE TERMINATION
OF ALL OF THE PRIOR EMPLOYER'S PERSONNEL.  I CANNOT ACCEPT SUCH A RULE,
ESPECIALLY WHEN, AS HERE, ALL OF THE OTHER FACTORS POINT SO
COMPELLINGLY TO THE CONCLUSION THAT PETITIONER IS A SUCCESSOR EMPLOYER
WHO SHOULD BE BOUND BY THE ARBITRATION AGREEMENT. 

/1/  THIS AGREEMENT SHALL BE BINDING UPON THE SUCCESSORS, ASSIGNS,
PURCHASERS, LESSEES OR TRANSFEREES OF THE EMPLOYER WHETHER SUCH
SUCCESSION, ASSIGNMENT OR TRANSFER BE EFFECTED VOLUNTARILY OR BY
OPERATION OF LAW OR BY MERGER OR CONSOLIDATION WITH ANOTHER COMPANY
PROVIDED THE ESTABLISHMENT REMAINS IN THE SAME LINE OF BUSINESS."  482
F.2D 489, 491. 

/2/  THE MOTEL FRANCHISE AGREEMENT PROVIDED, FOR EXAMPLE, THAT
HOWARD JOHNSON WOULD DETERMINE AND APPROVE STANDARDS OF CONSTRUCTION,
OPERATION AND SERVICE, AND WOULD HAVE THE RIGHT AT ANY TIME TO ENTER
THE PREMISES FOR THAT PURPOSE; THAT PRIOR APPROVAL WOULD BE REQUIRED
FOR EQUIPMENT AND SUPPLIES BEARING THE NAME "HOWARD JOHNSON"; THAT
HOWARD JOHNSON WOULD HAVE THE FIRST OPTION TO PURCHASE IF THE BUSINESS
WERE TO BE SOLD, AND THAT IN ANY EVENT HOWARD JOHNSON MUST APPROVE ANY
SUCCESSOR.  SEE THE DISTRICT COURT OPINION, 81 L.R.R.M. 2329, 2330, AND
APP. 50A ET SEQ. 

MR. JAMES D. TRACY ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

LAWRENCE GOLD ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WERE JERRY F. VENN, DONALD SUGERMAN, AND GEORGE KAUFMANN. 

GERARD C. SMETANA, JERRY KRONENBERG, AND MILTON SMITH FILED A BRIEF
FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICUS CURIAE
URGING REVERSAL. 

THOMAS E. HARRIS FILED A BRIEF FOR THE AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :










VERMONT V. NEW YORK, 417 U.S. 270 


       VERMONT V. NEW YORK ET AL.

        ON BILL OF COMPLAINT

        NO. 50, ORIG.  DECIDED JUNE 3, 1974. 


    ON A BILL OF COMPLAINT BY VERMONT CHARGING NEW YORK AND A PAPER

  COMPANY WITH POLLUTING LAKE CHAMPLAIN, IMPEDING NAVIGATION, AND

  CREATING A PUBLIC NUISANCE, THIS COURT WILL NOT APPROVE A CONSENT

  DECREE PROPOSED BY THE SPECIAL MASTER TO BE ENTERED WITHOUT

  FURTHER ARGUMENT OR HEARING AND CALLING FOR THE APPOINTMENT OF

  ANOTHER SPECIAL MASTER TO POLICE ITS EXECUTION AND PROPOSE TO THE

  COURT RESOLUTION OF ANY FUTURE ISSUES, SINCE THERE HAVE BEEN NO

FINDINGS OF FACT OR RULINGS EITHER AS TO EQUITABLE APPORTIONMENT

  OF THE WATER INVOLVED OR AS TO WHETHER NEW YORK AND THE PAPER

  COMPANY ARE RESPONSIBLE FOR A PUBLIC NUISANCE, AND SINCE THE

  PROPOSED NEW SPECIAL MASTER'S PROCEDURE WOULD MATERIALLY CHANGE

  THE COURT'S FUNCTION IN INTERSTATE CONTESTS SO THAT IN

  SUPERVISING EXECUTION OF THE DECREE IT WOULD BE ACTING MORE IN AN

  ARBITRAL THAN A JUDICIAL MANNER AND MIGHT BE CONSIDERING

  PROPOSALS HAVING NO RELATION TO LAW OR TO THE COURT'S ART. III

  FUNCTION. 

PER CURIAM. 

ON APRIL 24, 1972, AFTER ORAL ARGUMENT, WE GRANTED VERMONT'S MOTION
TO FILE A BILL OF COMPLAINT AGAINST NEW YORK AND THE INTERNATIONAL
PAPER CO. WHICH ALLEGED THAT AS A RESULT OF DISCHARGE OF WASTES,
LARGELY FROM INTERNATIONAL'S MILLS, THAT COMPANY AND NEW YORK ARE
RESPONSIBLE FOR A SLUDGE BED IN LAKE CHAMPLAIN AND TICONDEROGA CREEK
THAT HAS POLLUTED THE WATER, IMPEDED NAVIGATION, AND CONSTITUTED A
PUBLIC NUISANCE.  406 U.S. 186.  ISSUE WAS JOINED AND THE HONORABLE R.
AMMI CUTTER WAS APPOINTED SPECIAL MASTER.  408 U.S. 917.  LATER THE
UNITED STATES SOUGHT LEAVE TO INTERVENE, STATING IT HAD NUMEROUS
INTERESTS IN THESE WATERS UNDER FEDERAL STATUTES.  WE REFERRED THE
MOTION TO THE SPECIAL MASTER, 409 U.S. 1103, WHO GRANTED INTERVENTION. 
DURING THE YEAR 1973, 75 DAYS OF TESTIMONY WERE RECEIVED, VERMONT
PRESENTING SUBSTANTIALLY ALL OF ITS DIRECT CASE.  NEW YORK HAS PUT IN
ABOUT HALF OF ITS DIRECT CASE.  NEITHER INTERNATIONAL NOT THE UNITED
STATES UP TO NOW OFFERED ANY EVIDENCE. 

THE REPORT OF THE SPECIAL MASTER DATED APRIL 24, 1974, STATES THAT
HE SUGGESTED THAT THE PARTIES MIGHT ADJUST THEIR DIFFERENCES LESS
EXPENSIVELY THAN BY LITIGATION.  HE REPORTS THAT THE UNITED STATES
SUCCEEDED IN BRINGING ABOUT SERIOUS NEGOTIATIONS WHICH RESULTED IN A
SETTLEMENT THAT THE SPECIAL MASTER COMMENDS TO THE COURT FOR APPROVAL. 
THE PROPOSED SETTLEMENT IS REPRESENTED BY A PROPOSED CONSENT DECREE AND
A STIPULATION THAT THE DECREE MAY BE ENTERED BY THE COURT WITHOUT
FURTHER ARGUMENT OR HEARING. 

THE SETTLEMENT "CONTEMPLATES THAT NO FINDINGS SHALL BE MADE" AND IT
PROVIDES THAT "IT SHALL NOT CONSTITUTE AN ADJUDICATION ON ANY ISSUE OF
FACT OR LAW, OR EVIDENCE, OR ANY ADMISSION BY ANY PARTY WITH RESPECT TO
ANY SUCH ISSUE."  THE SPECIAL MASTER REPORTS, "IN MY OPINION, NO
SETTLEMENT WOULD BE POSSIBLE IF THIS REPORT WERE TO CONTAIN ANY
FINDINGS."  HE ADDS THAT IN HIS OPINION "IT REACHES A REASONABLE
RESULT, CONSISTENT WITH THE PUBLIC INTEREST, AND ACCEPTABLE ON THE
BASIS OF THE EVIDENCE THUS FAR PRESENTED." 

BY ART. I OF THE DECREE A SPECIAL SOUTH LAKE MASTER /1/  IS TO BE
APPOINTED WITH ALL THE USUAL POWERS OF SPECIAL MASTERS NAMED BY US.  HE
IS TO RESOLVE MATTERS OF CONTROVERSY BETWEEN THE PARTIES AFTER THEY
HAVE EXHAUSTED ALL ADMINISTRATIVE AND OTHER REMEDIES (EXCEPT JUDICIAL
REVIEW).  WHEN HE HAD DECIDED THE MATTER, HE WILL FILE HIS
RECOMMENDATION WITH THE CLERK OF THE COURT.  UNLESS ANY PARTY
"AGGRIEVED" FILES EXCEPTIONS WITH THE COURT WITHIN 30 DAYS, IT BECOMES
A DECISION OF THE COURT "UNLESS DISAPPROVED BY THE COURT."  PROPOSED
DECREE, SCHEDULE 1, 1.6.  BUT NOTHING IN SCHEDULE 1 LIMITS ANY
REGULATORY OR LAW ENFORCEMENT AUTHORITY "WITH LAWFUL JURISDICTION
INDEPENDENTLY TO CARRY OUT OR ENFORCE APPLICABLE LAW AND REGULATIONS." 

AFTER NINE YEARS FROM OUR APPROVAL OF THE DECREE, THE SOUTH LAKE
MASTER ON APPLICATION FOR MODIFICATION OF IT MAY SUBMIT HIS
RECOMMENDATIONS TO THE COURT WITHOUT PRIOR EXHAUSTION OF ADMINISTRATIVE
REMEDIES BEFORE THE FEDERAL AND NEW YORK AUTHORITIES OR AFTER SUCH
EXHAUSTION, AS HE CHOOSES. 

THE SOUTH LAKE MASTER MAY ORDER INTERNATIONAL TO PERMIT INSPECTION
OF OLD MILL /2/  OR NEW MILL /3/  ON SHOWING OF GOOD CAUSE.  SCHEDULE
1, 1.7. 

SCHEDULE 2 OF THE PROPOSED DECREE PROVIDES FOR GRADING AND COVERING
THE BARK PILE NEAR OLD MILL AND OF LOWERING THE WATER LEVL IN AN
ADJACENT POND TO REDUCE THE DRAINAGE OF THE BARK PILE INTO TICONDEROGA
OR TRIBUTARIES. 

SCHEDULE 3 PRESCRIBES METHODS OF CONTROL OF MALODOROUS AIR EMISSIONS
FROM NEW MILL; AND SCHEDULE 1, 1.5(B), PROVIDES THAT NOTWITHSTANDING
THE PROVISIONS OF SCHEDULE 3, IF, AFTER NOVEMBER 1, 1975, OBJECTIONABLE
ODORS ATTRIBUTABLE TO NEW MILL ARE DETECTED IN VERMONT "DURING A
SIGNIFICANT PERIOD OF TIME,"  THE SOUTH LAKE MASTER MAY RECOMMEND
"OTHER OR FURTHER ACTION OR RELIEF." 

WITHIN 30 DAYS AFTER APPROVAL OF THE PROPOSED DECREE, INTERNATIONAL
SHALL SUBMIT AN EMERGENCY REPORT "FOR A CONCEPTUAL PLAN" TO MODIFY THE
AIR EMISSION CONTROLS SPECIFIED IN SCHEDULE 3 AND, IF APPROVED BY NEW
YORK, THE NEW EQUIPMENT AND MATERIALS FOR THE FACILITIES SHALL BE
COMPLETED AND IN OPERATION NO LATER THAN NOVEMBER 1, 1975, SCHEDULE 3,
3.2 (C)(7). 

SCHEDULE 3, 3.3, STATES THE VOLUME OF TOTAL REDUCED SULFUR (TRS)
FROM INTERNATIONAL'S "RECOVERY BOILER" ONCE THE PROPOSED DECREE IS
APPROVED.  SECTION 3.4 (A) STATES THE STANDARD FOR EMISSIONS OF TRS
FROM THE LIME KILN AND 3.4 (B), THE AMOUNT OF SODIUM HYDROXIDE IN THE
SCRUBBING SOLUTION IN THE LIME KILN SCRUBBER. 

SCHEDULE 4 COVERS THE WATER DISCHARGE FROM NEW MILL.  IT SPECIFIES
IN 4.1 (A) THAT THE AMOUNT OF BOD5 /4/  IN THE WASTE WATER WILL NOT
EXCEED 4400 POUNDS PER DAY AS A MONTHLY AVERAGE.  SECTION 4.1 (B)
SPECIFIES THE MAXIMUM TOTAL PHOSPHORUS IN THE PROCESS WASTE WATER
EFFLUENT.  SECTION 4.2 PROVIDES THAT THE EFFLUENT WILL BE CONSIDERED
TOXIC, IF OVER A 96 - HOUR PERIOD, 20% OF THE TEST FISH (YELLOW PERCH)
FAIL TO SURVIVE IN A SOLUTION COMPOSED OF 65% PROCESS WASTE WATER
EFFLUENT AND 35% LAKE CHAMPLAIN WATER. 

INTERNATIONAL TO MAKE AT STATED INTERVALS. 

APPENDIX A "DELIVERED PURSUANT TO THE COMMAND OF THE SUPREME COURT
OF THE UNITED STATES" IS A RELEASE OF INTERNATIONAL BY VERMONT OF ALL
DAMAGES PAST, PRESENT AND FUTURE CAUSED (1) BY THE ACCUMULATION OF
SEDIMENT IN TICONDEROGA CREEK AND THE TICONDEROGA BAY AREA OF THE LAKE;
(2) BY THE DISCHARGE OF WATERS FROM OLD MILL PRIOR TO SUCH DATE; AND
(4) BY AIR EMISSIONS FROM NEW MILL PRIOR TO THAT DATE. 

APPENDIX B STATES THE POSITION OF THE UNITED STATES THAT IT IS NOT
IN THE PUBLIC INTEREST TO REMOVE THE SLUDGE DEPOSITS, THAT DREDGING
THEM IS NOT JUSTIFIED. 

APPENDIX C IS A RELEASE OF INTERNATIONAL BY THE UNITED STATES FROM
ALL LIABILITY FOR THE ACCUMULATION OF SEDIMENTS IN TICONDEROGA CREEK
AND THE TICONDEROGA BAY AREA BECAUSE OF PAST WASTE DISCHARGES, SAVE FOR
COSTS ARISING OUT OF REMEDIAL ACTION TAKEN AS A CONSEQUENCE OF "THE
NEEDS OF ANCHORAGE OR NAVIGATION." 

THE SPECIAL MASTER HAS DONE A VERY DIFFICULT TASK WELL AND WITH
DISTINCTION; WE ARE INDEED GRATEFUL FOR THE PROFESSIONAL SERVICES HE
HAD RENDERED.  BUT WE HAVE CONCLUDED NOT TO APPROVE THE PROPOSED DECREE
OR APPOINT A SOUTH LAKE MASTER. 

        I 

IN WISCONSIN V. ILLINOIS, 281 U.S. 696, THE COURT ON THE REPORT OF A
SPECIAL MASTER ENJOINED THE SANITARY DISTRICT OF CHICAGO FROM
WITHDRAWING THROUGH THE CHICAGO DRAINAGE CANAL MORE THAN A STATED
AMOUNT OF CUBIC FEET OF WATER PER SECOND.  THAT WAS ON APRIL 21, 1930. 
ON MAY 22, 1933, ON APPLICATION OF THE STATES FOR A "COMMISSIONER OR
SPECIAL OFFICER" TO EXECUTE THE DECREE, THE COURT ORDERED ILLINOIS TO
TAKE CERTAIN STEPS RESPECTING THE DIVERSION, BUT IT DENIED THE REQUEST
TO APPOINT THE COMMISSIONER.  289 U.S. 710, 711. 

WYOMING V. COLORADO, 259 U.S. 419, 260 U.S. 1, INVOLVED AN
ALLOCATION OF THE WATERS OF THE LARAMIE RIVER.  THE PARTIES WERE ONCE
MORE BEFORE THE COURT IN 1936, 298 U.S. 573.  THIS TIME THE COURT
ENTERED AN INJUNCTION AGAINST CONTINUING DIVERSIONS CONTRARY TO THE
PRIOR DECREES, ID., AT 582 - 583.  THE COURT REFUSED TO ORDER MEASURING
DEVICES AT PLACES OF DIVERSION OR TO APPOINT A WATER MASTER TO KEEP THE
RECORDS, THE COURT SAYING, "WHILE THE PROBLEM OF MEASURING AND
RECORDING THE DIVERSIONS IS A DIFFICULT ONE, WE ENTERTAIN THE HOPE THAT
THE TWO STATES WILL BY COOPERATIVE EFFORTS ACCOMPLISH A SATISFACTORY
SOLUTION OF IT."  ID., AT 586.  IN TIME THE TWO STATES, POLICING
THEMSELVES, RESOLVED THE CONTROVERSY, 309 U.S. 572. 

WE NOTED IN NEBRASKA V. WYOMING, 325 U.S. 589, 616, THAT CONTINUING
COURT SUPERVISION OVER DECREES OF EQUITABLE APPORTIONMENT OF WATERS WAS
UNDESIRABLE. 

NEW JERSEY V. NEW YORK, 283 U.S. 805, IS NOT AN EXCEPTION.  IT
INVOLVED A DISPUTE BETWEEN NEW JERSEY, NEW YORK, NEW YORK CITY, AND
PENNSYLVANIA OVER THE WATERS OF THE DELAWARE RIVER.  THE DECREE WAS AN
EQUITABLE APPORTIONMENT OF THE WATER COUPLED WITH PROTECTIVE
PROVISIONS, FIRST, FOR A SEWAGE DISPOSAL PLANT AT PORT JERVIS, NEW
YORK, THAT MET PRESCRIBED CLEANSING STANDARDS; SECOND, THE BANNING OF
THE DISCHARGE OF UNTREATED INDUSTRIAL WASTES INTO THE DELAWARE AND
NEVERSINK RIVERS; AND THIRD, THE TREATMENT OF INDUSTRIAL WASTES
PRACTICALLY TO FREE THEM "FROM SUSPENDED MATTER AND TO RENDER THEM
NONPUTRESCENT."  IBID.  THAT DECREE ENTERED MAY 25, 1931, WAS MODIFIED
JUNE 7, 1954, 347 U.S. 995, WHEN A SPECIAL MASTER'S REPORT WAS
APPROVED.  THE PRIOR EQUITABLE APPORTIONMENT WAS ALTERED AND NEW AND
SOMEWHAT DIFFERENT FORMULAE TO MEASURE AND CONTROL THE DIVERSIONS WERE
PROVIDED.  A RIVER MASTER WAS TO BE SELECTED BY THE CHIEF HYDRAULIC
ENGINEER OF THE U.S. GEOLOGICAL SURVEY TO ADMINISTER THE DECREE.  ID.,
AT 1002.  HE WAS AUTHORIZED TO MEASURE THE ACTUAL DIVERSIONS, IBID.,
COMPILE DATA, COLLECT AND CORRELATE STREAM-FLOW GAUGING, MAKE PERIODIC
REPORTS, AND MAKE DESIGNATED CHANGES IN THE VOLUME OF DAILY RELEASES,
ID., AT 1003. 

BUT IT IS A RARE CASE WHERE WE HAVE APPOINTED A WATER MASTER.  THE
ONE APPOINTED IN NEW JERSEY V. NEW YORK WAS GIVEN ONLY MINISTERIAL ACTS
TO PERFORM, SUCH AS READING GAUGES AND MEASURING THE FLOW.  IN THAT
CASE (1) THE RIGHTS OF THE PARTIES TO THE WATER HAD BEEN DETERMINED BY
THE COURT AND (2) THE SEWAGE AND INDUSTRIAL WASTE PROBLEMS HAD BEEN
ADJUDICATED AND RESOLVED.  /5/  ALL THAT REMAINED WAS TO SUPERVISE THE
APPLICATION OF THE VARIOUS FORMULAE WHICH THE COURT HAD DECREED, BASED
ON FINDINGS OF FACT. 

WISCONSIN V. ILLINOIS, 281 U.S. 179, INVOLVED THE USE OF LAKE
MICHIGAN WATERS BY A SANITARY DISTRICT IN ILLINOIS TO OPERATE SEWAGE
TREATMENT PLANTS.  THE COURT HAD ORDERED ILLINOIS TO RESTRICT ITS USE
OF LAKE MICHIGAN WATERS AND TO BUILD CERTAIN FACILITIES TO ALLOW
TREATMENT WITHOUT THE USE OF A GREAT DEAL OF LAKE WATERS.  ILLINOIS WAS
GIVEN CERTAIN TIMETABLES FOR COMPLETION OF THE NEW FACILITIES.  THE
SPECIAL MASTER RECOMMENDED EITHER THE APPOINTMENT OF A COMMISSION TO
SUPERVISE THE CONSTRUCTION OR THE FILING OF PROGRESS REPORTS BY THE
SANITARY COMMISSION WITH THE CLERK OF THIS COURT.  THE COURT CHOSE THE
OPTION OF NOT APPOINTING A COMMISSION, AND INSTEAD ORDERED THE DISTRICT
TO FILE SEMI-ANNUAL COMPLIANCE REPORTS WITH THE COURT.  MASTERS WERE
APPOINTED AT SEVERAL POINTS IN THIS LITIGATION FOR SPECIFIC SHORT-TERM
PURPOSES, BUT NO QUASI-PERMANENT MASTER TO OVERSEE GENERAL COMPLIANCE
WAS APPOINTED.  AFTER THE DISTRICT WAS ORDERED TO CONSTRUCT THE
FACILITIES, ILLINOIS IMPEDED PROGRESS BY WITHHOLDING NECESSARY STATE
FUNDS.  THE PARTIES ASKED FOR A MASTER TO POLICE COMPLIANCE WITH THE
DECREE.  THE COURT APPOINTED A MASTER TO INVESTIGATE BUT HE WAS
RELIEVED AFTER THE RECEIPT OF HIS REPORT.  ILLINOIS WAS ORDERED TO
SUPPLY THE NECESSARY FUNDS AND TO REPORT ITS COMPLIANCE WITH THE CLERK
OF THE COURT.  289 U.S. 395, 411 - 412. 

IN THE INSTANT CASE NO FINDINGS OF FACT HAVE BEEN MADE; NOR HAS ANY
RULING BEEN RESOLVED CONCERNING EITHER EQUITABLE APPORTIONMENT OF THE
WATER INVOLVED OR THE QUESTIONS RELATIVE TO WHETHER NEW YORK AND
INTERNATIONAL ARE RESPONSIBLE FOR THE CREATION OF A PUBLIC NUISANCE AS
ALLEGED BY VERMONT.  /6/ 

THE PROPOSED SOUTH LAKE MASTER WOULD POLICE THE EXECUTION OF THE
SETTLEMENT SET FORTH IN THE DECREE AND PASS ON TO THIS COURT HIS
PROPOSED RESOLUTION OF CONTESTED ISSUES THAT THE FUTURE MIGHT BRING
FORTH.  SUCH A PROCEDUE WOULD MATERIALLY CHANGE THE FUNCTION OF THE
COURT IN THESE INTERSTATE CONTESTS.  INSOFAR AS WE WOULD BE SUPERVISING
THE EXECUTION OF THE CONSENT DECREE, WE WOULD BE ACTING MORE IN AN
ARBITRAL RATHER THAN A JUDICIAL MANNER.  OUR ORIGINAL JURISDICTION
HERETOFORE HAS BEEN DEEMED TO EXTEND TO ADJUDICATIONS OF CONTROVERSIES
BETWEEN STATES ACCORDING TO PRINCIPLES OF LAW, SOME DRAWN FROM THE
INTERNATIONAL FIELD, SOME EXPRESSING A "COMMON LAW"  FORMULATED OVER
THE DECADES BY THIS COURT. 

THE PROPOSALS SUBMITTED BY THE SOUTH LAKE MASTER TO THIS COURT MIGHT
BE PROPOSALS HAVING NO RELATION TO LAW.  LIKE THE PRESENT DECREE THEY
MIGHT BE MERE SETTLEMENTS BY THE PARTIES ACTING UNDER COMPULSIONS AND
MOTIVES THAT HAVE NO RELATION TO PERFORMANCE OF OUR ART. III
FUNCTIONS.  ARTICLE III SPEAKS OF THE "JUDICIAL POWER" OF THIS COURT,
WHICH EMBRACES APPLICATION OF PRINCIPLES OF LAW OR EQUITY TO FACTS,
DISTILLED BY HEARINGS OR BY STIPULATIONS.  NOTHING IN THE PROPOSED
DECREE NOR IN THE MANDATE TO BE GIVEN THE SOUTH LAKE MASTER SPEAKS IN
TERMS OF "JUDICIAL POWER." 

        I 

THE PARTIES HAVE AVAILABLE OTHER AND PERHAPS MORE APPROPRIATE MEANS
OF REACHING THE RESULTS DESIRED UNDER THE PROPOSED COURT DECREE.  AN
INTERSTATE COMPACT UNDER ART. I, 10, CL. 3, IS A POSSIBLE SOLUTION OF
THE CONFLICT HERE.  VERMONT AND NEW YORK (ALONG WITH CONNECTICUT,
MAINE, MASSACHUSETTS, NEW HAMPSHIRE, AND RHODE ISLAND) ARE ALREADY
PARTIES TO THE NEW ENGLAND INTERSTATE WATER POLLUTION CONTROL COMPACT,
61 STAT. 682 (1947). 

A SETTLEMENT OF THIS INTERSTATE DISPUTE BY AGREEMENT OF THE PARTIES
IS ANOTHER ALTERNATIVE.  ONCE A CONSENSUS IS REACHED THERE IS NO
REASON, ABSENT A CONFLICT WITH AN INTERSTATE COMPACT, WHY SUCH A
SETTLEMENT WOULD NOT BE BINDING.  AND SUCH A SETTLEMENT MIGHT BE THE
BASIS FOR A MOTION TO DISMISS THE COMPLAINT.  CF. MISSOURI V. NEBRASKA,
POST, P. 904.                    SO ORDERED. 

/1/  SOUTH LAKE CHAMPLAIN "MEANS THAT PORTION OF LAKE CHAMPLAIN
EXTENDING FROM WHITEHALL, NEW YORK, TO THE LAKE CHAMPLAIN BRIDGE NEAR
CROWN POINT, NEW YORK."  PROPOSED DECREE, ART. II (I). 

/2/  OLD MILL IS LOCATED IN THE VILLAGE OF TICONDEROGA AND WAS LONG
OPERATED AS A PULP AND PAPER MILL. 

/3/  NEW MILL IS LOCATED FOUR MILES NORTH OF THAT VILLAGE. 

/4/  THIS IS THE FIVE-DAY BIOCHEMICAL OXYGEN DEMAND OF THE PROCESS
WASTE WATER EFFLUENT AS MEASURED BY A SPECIFIED METHOD. 

/5/  POLLUTION OF INTERSTATE WATERS RAISES QUESTIONS IN THE AREA OF
THE LAW OF PUBLIC NUISANCE AS WE RECENTLY NOTED IN ILLINOIS V. CITY OF
MILWAUKEE, 406 U.S. 91, 106 - 107. 

/6/  VERMONT ALSO ALLEGES THAT THE DEPOSIT OF SLUDGE HAS CAUSED A
SHIFT OF THE CHANNEL (THE BORDER BETWEEN THE TWO STATES) IN NEW YORK'S
FAVOR.  DISPUTES OVER INTERSTATE BOUNDARIES ARE PROPERLY COGNIZABLE
HERE.  MICHIGAN V. WISCONSIN, 270 U.S. 295; MASSACHUSETTS V. NEW YORK,
271 U.S. 65. 
..END :















GERSTEIN V. COE, 417 U.S. 279 


       GERSTEIN ET AL. V. COE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF FLORIDA

        NO. 73 - 1157.  DECIDED JUNE 3, 1974 


    STATE'S APPEAL UNDER 28 U.S.C. 1253 FROM A DECLARATORY JUDGMENT

  OF A THREE-JUDGE DISTRICT COURT INVALIDATING A STATE STATUTE

  DISMISSED FOR WANT OF JURISDICTION, SINCE 1253 DOES NOT AUTHORIZE

  APPEAL TO THIS COURT FROM THE GRANT OR DENIAL OF DECLARATORY

  RELIEF ALONE. 

     DISMISSED FOR WANT OF JURISDICTION; CERTIORARI BEFORE JUDGMENT
BY COURT OF APPEALS DENIED. 

PER CURIAM. 

A THREE-JUDGE DISTRICT COURT ENTERED A DECLARATORY JUDGMENT HOLDING
UNCONSTITUTIONAL A FLORIDA STATUTE, FLA. STAT. ANN. 458.22 (3) (SUPP.
1974 - 1975), WHICH FORBIDS AN ABORTION WITHOUT THE CONSENT OF THE
HUSBAND, IF THE WOMAN IS MARRIED, AND IF UNMARRIED AND UNDER THE AGE OF
18, WITHOUT THE CONSENT OF A PARENT.  BECAUSE IT WAS ANTICIPATED THAT
THE STATE WOULD RESPECT THE DECLARATORY JUDGMENT, THE COURT DECLINED TO
ISSUE AN INJUNCTION AGAINST THE ENFORCEMENT OF THE STATUTE.  THE STATE
OF FLORIDA APPEALS FROM THE DECLARATORY JUDGMENT INVALIDATING THE
STATUTE.  THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TITLE 28
U.S.C. 1253, UNDER WHICH THIS APPEAL IS SOUGHT TO BE TAKEN, DOES NOT
AUTHORIZE AN APPEAL FROM THE GRANT OR DENIAL OF DECLARATORY RELIEF
ALONE.  GUNN V. UNIVERSITY COMMITTEE, 399 U.S. 383 (1970); MITCHELL V.
DONOVAN, 398 U.S. 427 (1970); ROCKEFELLER V. CATHOLIC MEDICAL CENTER OF
BROOKLYN & QUEENS INC., DIVISION OF ST. MARY'S HOSPITAL 397 U.S. 820
(1970); SEE ALSO ROE V. WADE, 410 U.S. 113, 123 (1973).  THE
DECLARATORY JUDGMENT IS APPEALABLE TO THE COURT OF APPEALS, AND WE ARE
INFORMED THAT AN APPEAL TO THAT COURT HAS ALREADY BEEN TAKEN.  IT IS
SUGGESTED THAT WE TREAT THE STATEMENT OF JURISDICTION AS A PETITION FOR
CERTIORARI BEFORE JUDGMENT IN THE COURT OF APPEALS PURSUANT TO 28
U.S.C. 1254 (1).  THE PETITION FOR CERTIORARI IS DENIED. 
..END :






POE V. GERSTEIN, 417 U.S. 281 


       POE ET AL. V. GERSTEIN ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF FLORIDA

        NO. 73 - 1283.  DECIDED JUNE 3, 1974; AFFIRMED. 


    A THREE-JUDGE DISTRICT COURT, WHICH ENTERED A DECLARATORY

  JUDGMENT HOLDING A STATE ABORTION STATUTE UNCONSITUTIONAL,

  PROPERLY REFUSED TO ISSUE AN INJUNCTION AGAINST ENFORCEMENT OF

  THE STATUTE, WHERE THERE WAS NO ALLEGATION OR PROOF THAT THE

  STATE WOULD NOT ACQUIESCE IN THE DECLARATORY JUDGMENT. 

PER CURIAM. 

A THREE-JUDGE DISTRICT COURT ENTERED A DECLARATORY JUDGMENT HOLDING
UNCONSTITUTIONAL A FLORIDA STATUTE, FLA. STAT. ANN. 458.22 (3) (SUPP.
1974 - 1975), WHICH FORBIDS AN ABORTION WITHOUT THE CONSENT OF THE
HUSBAND, IF THE WOMAN IS MARRIED, AND IF UNMARRIED AND UNDER THE AGE OF
18, WITHOUT THE CONSENT OF A PARENT.  BECAUSE IT WAS ANTICIPATED THAT
THE STATE WOULD RESPECT THE DECLARATORY JUDGMENT, THE COURT DECLINED TO
ISSUE AN INJUNCTION AGAINST THE ENFORCEMENT OF THE STATUTE.  THE
PLAINTIFFS IN THE DISTRICT COURT ARE APPELLANTS HERE AND CHALLENGE THE
REFUSAL TO ISSUE THE INJUNCTION.  THE JUDGMENT OF THE DISTRICT COURT IS
AFFIRMED IN THIS RESPECT.  WHETHER OR NOT THE DECLARATORY JUDGMENT WAS
ITSELF PROPERLY ISSUED, A QUESTION ON WHICH WE INTIMATE NO OPINION, THE
DISTRICT COURT PROPERLY REFUSED TO ISSUE THE INJUNCTION; FOR THERE WAS
"NO ALLEGATION HERE AND NO PROOF THAT RESPONDENTS WOULD NOT, NOR CAN WE
ASSUME THAT THEY WILL NOT, ACQUIESCE IN THE DECISION . . . HOLDING THE
CHALLENGED ORDINANCE UNCONSTITUTIONAL."  DOUGLAS V. CITY OF JEANNETTE,
319 U.S. 157, 165 (1943).  THIS ASPECT OF DOUGLAS V. CITY OF JEANETTE
HAS BEEN REPEATEDLY RECOGNIZED IN LATER CASES.  DOMBROWSKI V. PFISTER,
380 U.S. 479, 484 - 485 (1965); ZWICKLER V. KOOTA, 389 U.S. 241, 253 -
254 (1967); ROE V. WADE, 410 U.S. 113, 166 - 167 (1973).  IT IS
UNNECESSARY TO DEAL SEPARATELY WITH THE QUESTION WHETHER THE DISTRICT
COURT WAS CORRECT IN DENYING INTERVENTION IN THE DISTRICT COURT TO
OTHER PARTIES WHO ARE APPELLANTS HERE; FOR ASSUMING THEY ARE TO BE
CONSIDERED PROPER PARTIES IN THE DISTRICT COURT AND IN THIS COURT, WE
WOULD AFFIRM THE DENIAL OF THE INJUNCTION AS TO THEM FOR THE SAME
REASONS WE AFFIRM THE DENIAL OF SUCH RELIEF TO APPELLANTS WHO WERE
PLAINTIFFS BELOW. 

              SO ORDERED. 
..END :























CASS V. UNITED STATES, 417 U.S. 72 


       CASS V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 73 - 604.  ARGUED APRIL 16, 1974- DECIDED MAY 28, 1974

           /0/  483 F.2D 220, AFFIRMED. 

/0/  TOGETHER WITH NO. 73-5661, ADAMS ET AL. V. SECRETARY OF THE
NAVY ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


    TITLE 10 U.S.C. 687 (A) PROVIDES FOR READJUSTMENT PAY FOR AN

  ARMED FORCES RESERVIST WHO IS INVOLUNTARILY RELEASED FROM ACTIVE

  DUTY AND HAS COMPLETED, IMMEDIATELY BEFORE HIS RELEASE, "AT LEAST

  FIVE YEARS OF CONTINUOUS ACTIVE DUTY," COMPUTED BY MULTIPLYING

  HIS YEARS OF ACTIVE SERVICE BY TWO MONTHS'  BASIC PAY OF HIS

  GRADE AT THE TIME OF RELEASE, AND FURTHER PROVIDES THAT "FOR THE

  PURPOSES OF THIS SUBSECTION--. . . (2) A PART OF A YEAR THAT IS

  SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, AND A PART OF A

  YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED . . . ."  HELD:

  THE "ROUNDING" PROVISION, AS IS CLEAR FROM THE STATUTE'S

  LEGISLATIVE HISTORY, APPLIES ONLY IN COMPUTING THE AMOUNT OF

  READJUSTMENT PAY, AND NOT IN DETERMINING ELIGIBILITY THEREFOR;

  HENCE, A RESERVIST MUST SERVE A MINIMUM OF FIVE FULL YEARS OF

  CONTINUOUS ACTIVE DUTY BEFORE HIS INVOLUNTARY RELEASE IN ORDER TO

  QUALIFY FOR READJUSTMENT BENEFITS.  PP. 75 - 84. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

  C. J., AND BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, AND

  REHNQUIST, J.J., JOINED.  DOUGLAS, J., FILED A DISSENTING

  STATEMENT, POST, P. 84. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

CONGRESS HAS PROVIDED IN 10 U.S.C. 687 (A) /1/  THAT AN OTHERWISE
ELIGIBLE MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, WHO IS
INVOLUNTARILY RELEASED FROM ACTIVE DUTY, "AND WHO HAS COMPLETED,
IMMEDIATELY BEFORE HIS RELEASE, AT LEAST FIVE YEARS OF CONTINUOUS
ACTIVE DUTY, IS ENTITLED TO A READJUSTMENT PAYMENT COMPUTED BY
MULTIPLYING HIS YEARS OF ACTIVE SERVICE . . . BY TWO MONTHS' BASIC PAY
OF THE GRADE IN WHICH HE IS SERVING AT THE TIME OF HIS RELEASE."  IT IS
FURTHER PROVIDED THAT "FOR THE PURPOSES OF THIS SUBSECTION- . . . (2) A
PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR,
AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED . . .
."  WE MUST DECIDE WHETHER THE "ROUNDING" PROVISION SET FORTH IN 687
(A)(2) IS TO BE APPLIED IN DETERMINING ELIGIBILITY FOR READJUSTMENT
PAY, AS WELL AS IN COMPUTING THE AMOUNT OF READJUSTMENT PAY TO WHICH AN
ELIGIBLE RESERVIST IS ENTITLED, SO THAT INVOLUNTARILY RELEASED
RESERVISTS WHO HAVE COMPLETED FOUR YEARS AND SIX MONTHS OR MORE, BUT
LESS THAN FIVE YEARS, OF CONTINUOUS ACTIVE DUTY PRIOR TO THEIR RELEASE
ARE NONETHELESS ENTITLED TO A READJUSTMENT PAYMENT.  THE COURT OF
APPEALS HELD THAT THE ROUNDING CLAUSE APPLIED ONLY TO COMPUTATION OF
READJUSTMENT PAYMENTS, 483 F.2D 220 (1973), CONTRARY TO THE EARLIER
DECISION OF THE COURT OF CLAIMS THAT THE ROUNDING PROVISION IS
APPLICABLE IN DETERMINING ELIGIBILITY FOR, AS WELL AS COMPUTATION OF,
READJUSTMENT PAYMENTS UNDER 687.  SCHMID V. UNITED STATES, 193 CT.CL.
780, 436 F.2D 987, CERT. DENIED, 404 U.S. 951 (1971).  WE GRANTED
CERTIORARI TO RESOLVE THE CONFLICT, 414 U.S. 1128 (1974), AND NOW
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

EACH PETITIONER HAD SERVED CONTINUOUSLY FOR MORE THAN FOUR YEARS AND
SIX MONTHS, BUT LESS THAN FIVE YEARS, WHEN NOTIFIED THAT HE WOULD BE
HONORABLY BUT INVOLUNTARILY RELEASED FROM ACTIVE DUTY IN THE RESERVES. 
IN NO. 73 - 604, PETITIONER CASS, A CAPTAIN IN THE ARMY RESERVE, WAS IN
FACT RELEASED FROM ACTIVE DUTY BEFORE COMPLETING FIVE YEARS OF SERVICE,
AND WHEN THE ARMY DENIED HIS REQUEST FOR READJUSTMENT PAY, HE BROUGHT
SUIT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA,
WHICH GRANTED RELIEF ON THE AUTHORITY OF THE COURT OF CLAIMS' DECISION
IN SCHMID, SUPRA.  IN NO. 73 - 5661, PETITIONERS ADAMS, STENEMAN, AND
YOUNGQUIST, CAPTAINS IN THE MARINE CORPS RESERVE, BROUGHT SEPARATE
ACTIONS IN THE CENTRAL DISTRICT OF CALIFORNIA, PRIOR TO THEIR RELEASE,
SEEKING A MODIFICATION OF THEIR RELEASE ORDERS TO PROVIDE FOR
READJUSTMENT PAY.  THE DISTRICT COURT SUBSEQUENTLY HELD THAT THEY WERE
ENTITLED TO READJUSTMENT PAY BASED ON ACTIVE SERVICE OF MORE THAN FOUR
AND ONE-HALF YEARS.  /2/  THE GOVERNMENT'S APPEALS FROM THE DECISIONS
OF THE TWO DISTRICT COURTS WERE CONSOLIDATED, AND THE COURT OF APPEALS
REVERSED EACH, HOLDING THAT THE STATUTE AND ITS LEGISLATIVE HISTORY
MAKE CLEAR THAT READJUSTMENT PAY IS NOT TO BE PROVIDED TO RESERVISTS
INVOLUNTARILY RELEASED FROM ACTIVE DUTY WITH LESS THAN FIVE FULL YEARS
OF CONTINUOUS SERVICE.  /3/ 

PETITIONERS ASSERT TO THE CONTRARY THAT THE LANGUAGE OF 687 (A)
UNAMBIGUOUSLY ESTABLISHES THAT FOUR AND ONE-HALF YEARS OF CONTINUOUS
ACTIVE SERVICE QUALIFIES AN INVOLUNTARILY RELEASED RESERVIST FOR
READJUSTMENT BENEFITS, THAT THE LEGISLATIVE HISTORY OF THE ROUNDING
PROVISION SHOULD THEREFORE NOT BE CONSIDERED IN RESOLVING THE ISSUE,
AND THAT EVEN IF THE LEGISLATIVE HISTORY IS CONSIDERED, IT SUPPORTS THE
CONSTRUCTION URGED BY PETITIONERS AS MUCH AS THAT CONTENDED FOR BY THE
GOVERNMENT.  WE ARE UNPERSUADED BY THESE ARGUMENTS, HOWEVER. 

THE STATUTE SETS OUT BOTH THE ELIGIBILITY REQUIREMENTS FOR
ENTITLEMENT TO READJUSTMENT PAY AND THE METHOD OF COMPUTING THE AMOUNT
OF THE APPLICABLE PAYMENT IN THE COMPLETION, IMMEDIATELY BEFORE THE
INVOLUNTARY RELEASE OF A RESERVIST, OF "AT LEAST FIVE YEARS OF
CONTINUOUS ACTIVE DUTY," AND THE PAYMENT IS TO BE COMPUTED BY
MULTIPLYING THE RESERVIST'S "YEARS OF ACTIVE SERVICE"  BY TWO MONTHS'
BASIC PAY OF THE GRADE IN WHICH HE IS SERVING WHEN RELEASED.  BECAUSE
THE ROUNDING PROVISION EXPRESSLY PROVIDES THAT IT IS TO BE APPLIED FOR
"PURPOSES OF THIS SUBSECTION," PETITIONERS CONTEND THAT THE PROVISION
MODIFIES THE TERM "YEAR" WHENEVER THAT TERM APPEARS IN THE SUBSECTION,
I.E., TO DETERMINE THE NUMBER OF YEARS OF SERVICE TO USE AS A
MULTIPLIER IN COMPUTING THE AMOUNT OF READJUSTMENT PAY OWED.  THIS IS
SO PLAINLY TRUE, PETITIONERS CONTEND, THAT RESORT TO LEGISLATIVE
HISTORY IS UNNECESSARY AND IMPROPER.  /4/ 

OUR VIEW IS TO THE CONTRARY.  THE ROUNDING PROVISION IS ARGUABLY
SUBJECT TO THE INTERPRETATION GIVEN IT BY PETITIONERS, BUT DID CONGRESS
INTEND THAT PROVISION TO OVERRIDE ITS EXPLICIT REQUIREMENT OF "AT
LEAST" FIVE YEARS OF SERVICE?  WE THINK THE ANSWER TO THAT QUESTION IS
SUFFICIENTLY DOUBTFUL TO WARRANT OUR RESORT TO EXTRINSIC AIDS TO
DETERMINE THE INTENT OF CONGRESS, WHICH, OF COURSE, IS THE CONTROLLING
CONSIDERATION IN RESOLVING THE ISSUE BEFORE US.  /5/  MOREOVER, THE
COURT HAS PREVIOUSLY STATED THAT "WHEN AID TO CONSTRUCTION OF THE
MEANING OF WORDS, AS USED IN THE STATUTE, IS AVAILABLE, THERE CERTAINLY
CAN BE NO 'RULE OF LAW'  WHICH FORBIDS ITS USE, HOWEVER, CLEAR THE
WORDS MAY APPEAR ON 'SUPERFICIAL EXAMINATION,'" UNITED STATES V.
AMERICAN TRUCKING ASSNS., INC., 310 U.S. 534, 543 - 544 (1940). 
HARRISON V. NORTHERN TRUST CO., 317 U.S. 476, 479 (1943).  SUCH AID IS
AVAILABLE IN THIS CASE AND WE DECLINE TO IGNORE THE CLEARLY RELEVANT
HISTORY OF 687 (A). 

CERTAIN RESERVISTS INVOLUNTARILY RELEASED FROM ACTIVE DUTY ARE
GRANTED LUMP-SUM READJUSTMENT PAY TO HELP THEM READJUST TO CIVILIAN
LIFE AND TO ENCOURAGE QUALIFIED RESERVISTS TO REMAIN ON ACTIVE DUTY FOR
EXTENDED PERIODS.  READJUSTMENT PAY WAS FIRST PROVIDED BY THE ACT OF
JULY 9, 1956, 70 STAT. 517, WHICH CONDITIONED ENTITLEMENT ON THE
COMPLETION IMMEDIATELY PRIOR TO RELEASE OF "AT LEAST FIVE YEARS OF
CONTINUOUS ACTIVE DUTY."  IT ALSO PROVIDED THAT "FOR THE PURPOSES OF
COMPUTING THE AMOUNT OF READJUSTMENT PAYMENT (1) A PART OF A YEAR THAT
IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, AND A PART OF A YEAR
THAT IS LESS THAN SIX MONTHS IS DISREGARDED . . . ."  IBID.  AS FIRST
INTRODUCED AND PASSED BY THE HOUSE, HOWEVER, THE BILL PROVIDED, AS THE
CODIFIED VERSION DOES NOW, THAT "FOR THE PURPOSES OF THIS SUBSECTION,
THE SIX-MONTH ROUNDING PROVISION WOULD APPLY.  H. R. REP. NO. 1960,
84TH CONG., 2D SESS., 9 (1956); 102 CONG. REC. 10120 (JUNE 12, 1956). 
IT WAS NONETHELESS MADE CLEAR BY THE DEBATE IN THE HOUSE PRIOR TO
PASSAGE THAT FIVE YEARS WAS TO BE THE MINIMUM ELIGIBILITY REQUIREMENT. 
/6/  THE SENATE, FOCUSING ON A LETTER FROM THE COMPTROLLER GENERAL TO
THE CHAIRMAN OF THE ARMED SERVICES COMMITTEE SUGGESTING THAT THE
LANGUAGE BE CLARIFIED TO ENSURE THAT FIVE YEARS WAS TO BE THE MINIMUM
PERIOD NECESSARY TO QUALIFY FOR A READJUSTMENT PAYMENT, AMENDED THE
BILL TO REFLECT THIS MORE CLEARLY, /7/  ID., AT 11333 - 11334 (JUNE 29,
1956), AND THE HOUSE READILY CONCURRED THE SAME DAY IN THE SENATE
AMENDMENTS TO THE BILL AS THE FINAL LANGUAGE OF THE 1956 ACT, ID., AT
11503 - 11504. 

THE ACT WAS AMENDED IN JUNE 1962, PRIMARILY TO RAISE THE AMOUNT OF
READJUSTMENT BENEFITS PAID TO INVOLUNTARILY RELEASED RESERVISTS TO
EQUAL THE AMOUNT PROVIDED AS SEVERANCE PAY TO INVOLUNTARILY RELEASED
REGULAR OFFICERS, /8/  BUT IT RETAINED THE EXPLICIT LANGUAGE SPECIFYING
THE USE OF THE ROUNDING PROVISION FOR "PURPOSES OF COMPUTING THE AMOUNT
OF THE READJUSTMENT PAYMENT," 76 STAT. 120, AND THERE WAS NO DISCUSSION
IN THE CONGRESSIONAL REPORTS.  /9/  SUGGESTING ANY MODIFICATION OF THIS
LANGUAGE.  LESS THAN THREE MONTHS LATER, HOWEVER, THE PRESENT LANGUAGE
WAS ADOPTED AS PART OF A MEASURE CODIFYING "RECENT MILITARY LAWS."  ACT
OF SEPTEMBER 7, 1962, 76 STAT. 506.  THE COMMITTEE REPORTS ACCOMPANYING
THE CODIFICATION PROPOSAL MAKE PLAIN THAT NO CHANGE IN THE ELIGIBILITY
REQUIREMENTS FOR READJUSTMENT PAY WAS INTENDED BY THE ENACTED CHANGE IN
PHRASEOLOGY.  /10/  THE SENATE JUDICIARY COMMITTEE REPORT EXPLAINED THE
PURPOSE OF THE PROPOSAL AS FOLLOWS: 

     "THIS BILL, AS AMENDED, IS NOT INTENDED TO MAKE ANY
SUBSTANTIVE

  CHANGE IN EXISTING LAW.  ITS PURPOSE IS TO BRING UP TO DATE TITLE

  10 OF THE U.S.C.  BY INCORPORATING THE PROVISIONS OF A NUMBER OF

  PUBLIC LAWS THAT WERE PASSED WHILE THE BILL TO ENACT TITLE 10

  INTO LAW WAS STILL PENDING IN THE CONGRESS, AND TO TRANSFER TO

  TITLE 10, PROVISIONS NOW IN OTHER PARTS OF THE CODE."  S. REP.

  NO. 1876, 87TH CONG., 2D SESS., 5 (1962). 

THE SAME LIMITED PURPOSE WAS EXPRESSED BY THE HOUSE JUDICIARY
COMMITTEE, WHICH FURTHER EXPLAINED THAT "SOME CHANGES IN STYLE AND FORM
HAVE BEEN MADE TO CONFORM THE PROVISIONS TO THE STYLE AND FORM OF TITLE
10, BUT THESE CHANGES DO NOT AFFECT THE SUBSTANCE."  H. R. REP. NO.
1401, 87TH CONG., 2D SESS., 1 (1962). 

THESE CONGRESSIONAL COMMENTS, COMBINED WITH THE FACT THAT NO
CONSIDERATION OF ANY CHANGE IN ELIGIBILITY STANDARDS APPEARS IN EITHER
THE CITED COMMITTEE REPORTS OR IN THE PROCEEDINGS LEADING TO ADOPTION
OF THE CODIFICATION BILL BY THE HOUSE, 108 CONG. REC. 4435 - 4441
(1962), AND BY THE SENATE, CONG. REC.  17088 - 17089 (1962),
CONCLUSIVELY DEMONSTRATE THAT CONGRESS DID NOT REDUCE THE MINIMUM
PERIOD OF QUALIFYING SERVICE FOR ENTITLEMENT TO READJUSTMENT BENEFITS
FROM FIVE TO FOUR AND ONE-HALF YEARS WHEN IT SUBSTITUTED THE WORDS IN
THE CODIFIED VERSION OF 687 (A) FOR THE UNAMBIGUOUS LANGUAGE OF THE
PRIOR SUBSTANTIVE ENACTMENTS.  WE ARE UNPERSUADED BY PETITIONERS'
CLAIM THAT THE CODIFIED VERSION IS NEVERTHELESS TO BE ACCEPTED AS
CORRECTLY EXPRESSING THE WILL OF CONGRESS AND AS A MERE UNEXPLAINED
VERSION OF THE LANGUAGE OF PRIOR LAW, SEE CONTINENTAL CASUALTY CO. V.
UNITED STATES, 314 U.S. 527, 529 - 530 (1942); UNITED STATES V. BOWEN,
100 U.S. 508, 513 (1880).  HERE THE MEANING OF THE PREDECESSOR STATUTE
IS CLEAR AND QUITE DIFFERENT FROM THE MEANING PETITIONERS WOULD ASCRIBE
TO THE CODIFIED LAW; AND THE REVISERS EXPRESSLY STATED THAT CHANGES IN
LANGUAGE RESULTING FROM THE CODIFICATION WERE TO HAVE NO SUBSTANTIVE
EFFECT.  FOURCO GLASS CO. V. TRANSMIRRA PRODUCTS CORP., 353 U.S. 222,
227 - 228 (1957); UNITED STATES V. COOK, 384 U.S. 257, 260 (1966); CITY
OF GREENWOOD V. PEACOCK, 384 U.S. 808, 815 - 816 (1966). 

THE COURT OF CLAIMS IN THE SCHMID CASE, 193 CT.CL. 780, 436 F.2D 987
(1971), THOUGHT THAT IN CODIFYING 687(A), CONGRESS RESTORED THE
ORIGINAL LANGUAGE OF THE 1956 HOUSE BILL, WHICH IT KNEW HAD BEEN
INTERPRETED BY THE COMPTROLLER GENERAL AS REDUCING THE MINIMUM
ELIGIBILITY REQUIREMENT TO FOUR YEARS, SIX MONTHS.  ID., WAS
ACCOMPANIED BY NO REFERENCE TO THE 1956 LEGISLATION OR TO THE VIEWS
THEN EXPRESSED BY THE COMPTROLLER GENERAL.  /11/  WHAT IS MORE, IT IS
PLAIN THAT THE LANGUAGE OF THE ORIGINAL 1956 BILL WAS ITSELF NOT
INTENDED TO SET THE MINIMUM ELIGIBILITY PERIOD AT LESS THAN FIVE
YEARS.  /12/  THE CODIFICATION, IF CONSTRUED AS PETITIONERS WOULD HAVE
IT, WOULD NOT REPRESENT A "RETURN"  TO THE ORIGINAL INTENT OF
CONGRESS.  IT IS ALSO SIGNIFICANT THAT THERE IS NO HINT OF ANY
CONSIDERATION OF WHAT SUCH A CHANGE WOULD COST OR HOW IT WOULD AFFECT
THE GOALS OF THE READJUSTMENT PAY PROVISIONS, CONTRARY TO THE CAREFUL
ATTENTION THESE MATTERS RECEIVED WHEN BENEFITS UNDER THE READJUSTMENT
PAY STATUTE WERE RAISED IN 1962.  AS JUDGE NICHOLS COMMENTED IN
DISSENTING FROM THE DECISION IN SCHMID:  "IN RESOLVING AMBIGUITY, WE
MUST ALLOW OURSELVES SOME RECOGNITION OF THE EXISTENCE OF SHEER
INADVERTENCE IN THE LEGISLATIVE PROCESS."  ID., AT 789, 436 F.2D, AT
992.  FINALLY, WE CANNOT AGREE WITH THE CONTENTION THAT A CHANGE IN
MINIMUM ELIGIBILITY FROM FIVE TO FOUR AND ONE-HALF YEARS SHOULD NOT BE
CONSIDERED A "SUBSTANTIVE CHANGE"  BECAUSE ONCE A RESERVIST MUST RE
ENLIST BEYOND THE INITIAL ENLISTMENT TERM OF FOUR YEARS, THE PURPOSE OF
THE READJUSTMENT BENEFIT SCHEME AS AN INDUCEMENT TO EXTENDED SERVICE IS
SATISFIED.  NOT ONLY IS THE SELECTION OF THE PARTICULAR MINIMUM TERM OF
ELIGIBILITY A PECULIARLY LEGISLATIVE TASK DEPENDENT UPON SUBSTANTIVE
JUDGMENT, BUT THE VERY FACT THAT SUCH A CHANGE INVOLVES A SUBSTANTIALLY
GREATER EXPENDITURE OF FUNDS PLACES THIS SORT OF REVISION INTO THE
SUBSTANTIVE REALM. 

WE THUS CONCLUDE THAT THE ROUNDING PROVISION OF 687 (A)(2) IS
APPLICABLE ONLY IN THE DETERMINATION OF HOW MUCH READJUSTMENT PAY AN
OTHERWISE QUALIFIED RESERVIST IS AUTHORIZED, AND THAT SUCH A RESERVIST
MUST SERVE A MINIMUM OF FIVE FULL YEARS OF CONTINUOUS ACTIVE DUTY
BEFORE HE IS INVOLUNTARILY RELEASED IN ORDER TO BE ELIGIBLE FOR
READJUSTMENT BENEFITS.  THE JUDGMENT OF THE COURT OF APPEALS IS

 AFFIRMED. 

/1/  IN FULL, 10 U.S.C. 687(A) PROVIDES:  "687.  NON-REGULARS:
READJUSTMENT PAYMENT UPON INVOLUNTARY RELEASE FROM ACTIVE DUTY. 

"(A) EXCEPT FOR MEMBERS COVERED BY SUBSECTION (B), A MEMBER OF A
RESERVE COMPONENT OR A MEMBER OF THE ARMY OR THE AIR FORCE WITHOUT
COMPONENT WHO IS RELEASED FROM ACTIVE DUTY INVOLUNTARILY, OR BECAUSE HE
WAS NOT ACCEPTED FOR AN ADDITIONAL TOUR OF ACTIVE DUTY FOR WHICH HE
VOLUNTEERED AFTER HE HAD COMPLETED A TOUR OF ACTIVE DUTY, AND WHO HAS
COMPLETED, IMMEDIATELY BEFORE HIS RELEASE, AT LEAST FIVE YEARS OF
CONTINUOUS ACTIVE DUTY, IS ENTITLED TO A READJUSTMENT PAYMENT COMPUTED
BY MULTIPLYING HIS YEARS OF ACTIVE SERVICE (OTHER THAN IN TIME OF WAR
OR OF NATIONAL EMERGENCY DECLARED BY CONGRESS AFTER JUNE 28, 1962), BUT
NOT MORE THAN EIGHTEEN, BY TWO MONTHS' BASIC PAY OF THE GRADE IN WHICH
HE IS SERVING AT THE TIME OF HIS RELEASE.  HOWEVER, A MEMBER WHO IS
RELEASED FROM ACTIVE DUTY BECAUSE HIS PERFORMANCE OF DUTY HAS FALLEN
BELOW STANDARDS PRESCRIBED BY THE SECRETARY CONCERNED, OR BECAUSE HIS
RETENTION ON ACTIVE DUTY IS NOT CLEARLY CONSISTENT WITH THE INTERESTS
OF NATIONAL SECURITY, IS ENTITLED TO A READJUSTMENT PAYMENT COMPUTED ON
THE BASIS OF ONE-HALF OF ONE MONTH'S BASIC PAY OF THE GRADE IN WHICH
THE MEMBER IS SERVING AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY.  A
PERSON COVERED BY THIS SUBSECTION MAY NOT BE PAID MORE THAN TWO YEARS'
BASIC PAY OF THE GRADE IN WHICH HE IS SERVING AT THE TIME OF HIS
RELEASE OR $15,000, WHICHEVER AMOUNT IS THE LESSER.  FOR THE PURPOSES
OF THIS SUBSECTION-- 

"(1) A PERIOD OF ACTIVE DUTY IS CONTINUOUS IF IT IS NOT INTERRUPTED
BY A BREAK IN SERVICE OF MORE THAN 30 DAYS; 

"(2) A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A
WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS
DISREGARDED; AND 

"(3) A PERIOD FOR WHICH THE MEMBER CONCERNED HAS RECEIVED
READJUSTMENT PAY UNDER ANOTHER PROVISION OF LAW MAY NOT BE INCLUDED." 

/2/  THE DISTRICT COURT HAD EARLIER GRANTED PETITIONERS' MOTION FOR
A PRELIMINARY INJUNCTION PROHIBITING THEIR INVOLUNTARY RELEASE WITHOUT
READJUSTMENT PAY.  AS A RESULT, THESE PETITIONERS HAD EACH SERVED MORE
THAN FIVE YEARS ON ACTIVE DUTY BY THE TIME THE DECISION AWARDING THEM
READJUSTMENT BENEFITS WAS RENDERED.  IN DECIDING THEY WERE ENTITLED TO
READJUSTMENT PAY, HOWEVER, THE DISTRICT COURT EXPRESSLY DISCLAIMED ANY
RELIANCE ON THE FACT THAT THEY ACTUALLY SERVED MORE THAN FIVE YEARS,
SINCE THEY WERE PERMITTED TO DO SO ONLY UNDER THE COMPULSION OF THE
COURT'S PRELIMINARY INJUNCTION.  THE INJUNCTION WAS DISSOLVED AS MOOT
IN THE WAKE OF THE AWARD OF READJUSTMENT PAY. 

/3/ THE COURT OF APPEALS ALSO HELD THAT THE INJUNCTION GRANTED IN
FAVOR OF PETITIONERS IN NO. 73 - 5661, SEE N. 2, SUPRA, WAS IMPROPERLY
ISSUED AND COULD NOT BE RELIED UPON TO SUPPORT ELIGIBILITY FOR
READJUSTMENT BENEFITS.  483 F.2D 220, 222 (1973).  THAT RULING IS NOT
CHALLENGED IN THIS COURT. 

/4/  PETITIONERS RELY ON CASES SUGGESTING THAT RECOURSE TO
LEGISLATIVE MATERIALS IS UNWARRANTED WHEN THE MEANING OF STATUTORY
LANGUAGE IS CLEAR AND UNEQUIVOCAL.  E.G., UNITED STATES V. OREGON, 366
U.S. 643, 648 (1961); EX PARTE COLLETT, 337 U.S. 55, 61 (1949);
HELVERING V. CITY BANK CO., 296 U.S. 85, 89 (1935); UNITED STATES V.
SHREVEPORT GRAIN & ELEVATOR CO., 287 U.S. 77, 83 (1932).  IN THE FIRST
TWO OF THESE CASES, THOUGH FINDING THE LANGUAGE TO BE CONSTRUED THIS
CLEAR, THE COURT NONETHELESS DID LOOK AT THE LEGISLATIVE HISTORY OF THE
STATUTORY PROVISIONS TO BE INTERPRETED. 

/5/  A MAJORITY OF THE COURT OF CLAIMS IN SCHMID V. UNITED STATES,
193 CT.DL. 780, 436 F.2D 987 (1971), THOUGH THEY ALSO EXAMINED THE
LEGISLATIVE HISTORY, FOUND IT CLEAR FROM THE LANGUAGE OF 687 (A) THAT
THE ROUNDING PROVISION SHOULD APPLY TO BOTH ELIGIBILITY AND COMPUTATION
DETERMINATIONS, WHEREAS THE COURT OF APPEALS IN THESE CASES THOUGHT IT
CLEAR THAT THE MINIMUM FIVE-YEAR ELIGIBILITY CLAUSE IS "NOT SUBJECT TO
THE INTERPRETATION GIVEN IT BY THE COURT IN SCHMID."  483 F.2D, AT
222.  OBVIOUSLY THERE IS ROOM FOR REASONABLE DISPUTE OVER THE
CONSTRUCTION OF 687 (A) BASED ON THE STATUTORY LANGUAGE ALONE. 

PETITIONERS TENDER OTHER ARGUMENTS, APART FROM THAT FOUNDED ON THE
CONSISTENT USE OF THE WORD "YEARS," TO DEMONSTRATE THAT, READ IN ITS
STATUTORY CONTEXT, THE ROUNDING PROVISION IN 687 (A) WAS PLAINLY
INTENDED TO ESTABLISH THE MINIMUM QUALIFYING TERM OF SERVICE AT FOUR
YEARS, SIX MONTHS, BUT NONE OF THEM OVERCOMES THE AMBIGUITY CREATED BY
THE DIRECT ESTABLISHMENT OF "AT LEAST FIVE YEARS" OF SERVICE AS A
QUALIFICATION FOR READJUSTMENT BENEFITS.  THUS, IT IS ARGUED THAT 687
(A)(3) EXCLUDES FROM THE DETERMINATION OF BOTH ELIGIBILITY AND THE
AMOUNT OF BENEFITS PAYABLE "A PERIOD FOR WHICH THE MEMBER CONCERNED HAS
RECEIVED READJUSTMENT PAY UNDER ANOTHER PROVISION OF LAW," AND GIVEN
THE GRAMMATICAL STRUCTURE OF 687 (A), N. 1, SUPRA, THAT THE ROUNDING
RULE IN SUBSECTION (2) MUST BE APPLIED FOR THE SAME PURPOSES AS THE
"PRIOR PERIOD EXCLUSION" RULE OF SUBSECTION (3).  THE GOVERNMENT
ASSERTS THAT THE UNDERLYING PREMISE THAT SUBSECTION (3) APPLIES FOR
BOTH PURPOSES IS ERRONEOUS.  AS WAS THE CASE WITH THE ROUNDING
PROVISION BEFORE CODIFICATION, SEE TEXT INFRA, THE PRIOR PERIOD
EXCLUSION WAS EXPRESSLY TO BE APPLIED ONLY "FOR THE PURPOSES OF
COMPUTING THE AMOUNT OF THE READJUSTMENT PAYMENT."  ACT OF JUNE 28,
1962, 76 STAT. 120.  FURTHERMORE, THE CURRENT DEPARTMENT OF DEFENSE
MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL 40414 (B) (JAN. 1,
1967) STILL EXCLUDES SUCH PRIOR SERVICE ONLY FOR COMPUTING THE AMOUNT
OF READJUSTMENT PAY DUE, NOT FOR DETERMINING ENTITLEMENT.  THE
GOVERNMENT SUGGESTS, THEREFORE, THAT IF 687 (A)(2) AND (3) ARE TO BE
CONSTRUED AS APPLICABLE FOR THE SAME PURPOSE, THAT PURPOSE IS ONLY FOR
COMPUTATION.  MANIFESTLY, THE PARTIES' DISPUTE OVER THE APPLICABILITY
OF SUBSECTION (3) DOES NOT RESOLVE THE ISSUE OF WHEN SUBSECTION (2) IS
TO APPLY; IT MERELY RESTATES THE PROBLEM. 

PETITIONERS ALSO RELY ON 10 U.S.C. 6330, WHICH EXPRESSLY APPLIES A
LIKE ROUNDING RULE BOTH TO DETERMINE ELIGIBILITY FOR TRANSFER TO THE
FLEET RESERVE AND, THEREBY, FOR RETAINER PAY, BY ENLISTED MEMBERS OF
THE NAVY AND MARINE CORPS, AND TO COMPUTE THE AMOUNT OF RETAINER PAY
DUE.  THE PERTINENT PORTIONS OF 6330 PROVIDE AS FOLLOWS: 

6330.  ENLISTED MEMBERS:  TRANSFER TO FLEET RESERVE AND FLEET MARINE
CORPS RESERVE; RETAINER PAY. 

        .          .          .          . 

"(B) AN ENLISTED MEMBER OF THE REGULAR NAVY OR THE NAVAL RESERVE WHO
HAS COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE IN THE ARMED FORCES
MAY, AT HIS REQUEST, BE TRANSFERRED TO THE FLEET RESERVE.  AN ENLISTED
MEMBER OF THE REGULAR MARINE CORPS OR THE MARINE CORPS RESERVE WHO HAS
COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE IN THE ARMED FORCES MAY,
AT HIS REQUEST, BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE. 

"(C) EACH MEMBER WHO IS TRANSFERRED TO THE FLEET RESERVE OR THE
FLEET MARINE CORPS RESERVE UNDER THIS SECTION IS ENTITLED WHEN NOT ON
ACTIVE DUTY, TO RETAINER PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC
PAY THAT HE RECEIVED AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER
OF YEARS OF ACTIVE SERVICE IN THE ARMED FORCES . . . 

"(D) FOR THE PURPOSES OF SUBSECTIONS (B) AND (C), A PART OF A YEAR
THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR AND A PART OF A
YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED.  A COMPLETED MINORITY
ENLISTMENT IS COUNTED AS FOUR YEARS OF ACTIVE SERVICE, AND AN
ENLISTMENT TERMINATED WITHIN THREE MONTHS BEFORE THE END OF THE TERM OF
ENLISTMENT IS COUNTED AS ACTIVE SERVICE FOR THE FULL TERM."  IT IS
READILY APPARENT THAT THE ROUNDING PROVISION OF 687 (A)(2) CONTAINS AN
AMBIGUITY NOT PRESENT IN THE MORE EXPLICIT LANGUAGE OF 6330 (D).  NOR
DOES THE PARTICULAR ROUNDING PROVISION IN 6330 INDICATE ANY LEGISLATIVE
CUSTOM IN THIS CONTEXT THAT SHOULD CONTROL THE CONSTRUCTION OF 687
(A).  AT MOST, 6330 INDICATES THAT THE CONSTRUCTION OF 687 (A)
PROFFERED BY PETITIONERS COULD FIT WITHIN THE STRUCTURE OF TITLE 10,
NOT THAT THE SECTION MUST BE SO CONSTRUED. 

/6/  THE SPONSOR OF THE LEGISLATION, REPRESENTATIVE BROOKS, ENGAGED
IN THE FOLLOWING DIALOGUE AND EXPLANATION: 

"MR. BROOKS OF LOUISIANA . . . . WE STARTED WITH 5 YEARS BECAUSE WE
ESTIMATE THAT THE AVERAGE INDIVIDUAL WHO STAYS 5 YEARS IN THE SERVICE
HAS IN VIEW MAKING A CAREER OF THAT SERVICE.  AFTER HE HAS GONE A LONG
WAY TOWARD MAKING A CAREER OF THE SERVICE AND WHEN WE TAKE THAT
OPPORTUNITY AWAY FROM HIM AND TURN HIM BACK TO CIVILIAN LIFE, WE FEEL
THAT THERE SHOULD BE SOME SORT OF READJUSTMENT. 

        .          .          .          . 

"MR. GROSS.  THE MINIMUM, THEN, IS 5 YEARS; IS THAT CORRECT? 

"MR. BROOKS OF LOUISIANA.  THAT IS CORRECT.  THE REASON FOR THE 5
YEARS, OF COURSE, IS THAT A 3-YEAR ENLISTMENT WOULD REQUIRE A
REENLISTMENT, OR . . . A MAN WHO IS IN FOR 4 YEARS WILL HAVE TO
REENLIST FOR AN EXTENDED PERIOD.  AFTER HE COMPLETES THE FIRST
ENLISTMENT I THINK HE INTENDS TO STAY IN THE SERVICE AND THIS
ENCOURAGES HIM TO STAY IN THE SERVICE AS LONG AS THE SERVICE NEEDS
HIM."  102 CONG.REC.  10118 - 10119 (1956). 

/7/  THE COMPTROLLER GENERAL'S LETTER WAS CONTAINED IN THE SENATE
REPORT AND PROVIDES IN PERTINENT PART AS FOLLOWS: 

"ALTHOUGH THE LANGUAGE OF SUBSECTION (A) OF THE BILL SEEMS TO
INDICATE THAT A MINIMUM OF 5 YEARS' CONTINUOUS ACTIVE DUTY AS AN
OFFICER OR WARRANT OFFICER IS NECESSARY TO QUALIFY FOR A READJUSTMENT
PAYMENT, THE LAST SENTENCE OF THAT SUBSECTION APPEARS TO REDUCE THE
MINIMUM QUALIFYING SERVICE TO 4 YEARS AND 6 MONTHS.  PRESUMABLY THE
PROVISION AUTHORIZING THE COUNTING OF 6 MONTHS OR MORE AS A WHOLE YEAR
WAS INTENDED TO APPLY ONLY FOR THE PURPOSE OF COMPUTING THE AMOUNT OF A
LUMP-SUM PAYMENT AND NOT THE QUANTUM OF QUALIFYING SERVICE.  IF SO, THE
LANGUAGE SHOULD BE CLARIFIED, PERHAPS SOMEWHAT AS FOLLOWS: 

"'FOR THE PURPOSE OF COMPUTING THE AMOUNT OF THE READJUSTMENT
PAYMENT A FRACTIONAL PART OF A YEAR AMOUNTING TO 6 MONTHS (OR 183 DAYS)
OR MORE SHALL BE COUNTED AS A WHOLE YEAR AND A SHORTER PERIOD SHALL BE
DISREGARDED.'"  S. REP. NO. 2288, 84TH CONG., 2D SESS., 11 (1956). 

THE REPORT ITSELF EXPLAINS THAT THE AMENDED PROVISION IN THE BILL
WAS DESIGNED TO LIMIT THE APPLICATION OF THE ROUNDING FORMULA "TO YEARS
USED IN THE COMPUTATION OF READJUSTMENT PAY AND NOT FOR YEARS TO
ESTABLISH THE 5-YEAR MINIMUM OF SUBSTANTIALLY CONTINUOUS ACTIVE DUTY
THAT IS REQUIRED TO QUALIFY FOR READJUSTMENT PAYMENTS."  ID., AT 2. 

/8/  SEE H. R. REP. NO. 1007, 87TH CONG., 1ST SESS. (1961); S. REP.
NO. 1096, 87TH CONG., 1ST SESS. (1961). 

/9/  N. 8, SUPRA. 

/10/  THE CODIFICATION BILL HAD BEEN REFERRED IN BOTH THE HOUSE AND
THE SENATE TO THE JUDICIARY COMMITTEES, UNLIKE THE EARLIER SUBSTANTIVE
CONSIDERATION OF THE BILLS ESTABLISHING AND AMENDING THE READJUSTMENT
PAY PROVISIONS BY THE ARMED SERVICES COMMITTEES OF THE RESPECTIVE
CHAMBERS OF CONGRESS. 

/11/  SEE N. 7, SUPRA. 

/12/  SEE N. 6, SUPRA. 

MR. JUSTICE DOUGLAS, AGREEING WITH THE COURT OF CLAIMS IN SCHMID V.
UNITED STATES, 193 CT.CL. 780, 436 F.2D 987, WOULD REVERSE THE JUDGMENT
OF THE COURT OF APPEALS. 

ARTHUR B. HANSON ARGUED THE CAUSE FOR PETITIONER IN NO. 73 - 604. 
WITH HIM ON THE BRIEFS WAS CHARLES A. SMITH.  WILLIAM A. DOUGHERTY, BY
APPOINTMENT OF THE COURT, 416 U.S. 934, ARGUED THE CAUSE AND FILED
BRIEFS FOR PETITIONERS IN NO. 73 - 5661. 

WILLIAM L. PATTON ARGUED THE CAUSE FOR RESPONDENTS IN BOTH CASES. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ACTING ASSISTANT
ATTORNEY GENERAL JAFFE, ROBERT E. KAPP, AND ANTHONY J. STEINMEYER.* 

*KEVIN M. FORDE FILED A BRIEF FOR JOHN N. O'MEARA AS AMICUS CURIAE
URGING REVERSAL IN BOTH CASES. 
..END :












BELLIS V. UNITED STATES, 417 U.S. 85 


       BELLIS V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 73 - 190.  ARGUED FEBRUARY 25, 1974--DECIDED MAY 28,

           1974; 483 F.2D 961, AFFIRMED. 


    FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION HELD NOT

  AVAILABLE TO MEMBER OF DISSOLVED LAW PARTNERSHIP WHO HAD BEEN

  SUBPOENAED BY A GRAND JURY TO PRODUCE THE PARTNERSHIP'S FINANCIAL

  BOOKS AND RECORDS, SINCE THE PARTNERSHIP, THOUGH SMALL, HAD AN

  INSTITUTIONAL IDENTITY AND PETITIONER HELD THE RECORDS IN A

  REPRESENTATIVE, NOT A PERSONAL, CAPACITY.  THE PRIVILEGE IS

  "LIMITED TO ITS HISTORIC FUNCTION OF PROTECTING ONLY THE NATURAL

  INDIVIDUAL FROM COMPULSORY INCRIMINATION THROUGH HIS OWN

  TESTIMONY OR PERSONAL RECORDS."  UNITED STATES V. WHITE, 322 U.S.

694, 701.  PP. 87 - 101. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., JOINED.  DOUGLAS J., FILED A DISSENTING OPINION,

  POST, P. 101. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER A PARTNER IN A SMALL
LAW FIRM MAY INVOKE HIS PERSONAL PRIVILEGE AGAINST SELF-INCRIMINATION
TO JUSTIFY HIS REFUSAL TO COMPLY WITH A SUBPOENA REQUIRING PRODUCTION
OF THE PARTNERSHIP'S FINANCIAL RECORDS. 

UNTIL 1969, PETITIONER ISADORE BELLIS WAS THE SENIOR PARTNER IN
BELLIS, KOLSBY & WOLF, A LAW FIRM IN PHILADELPHIA.  THE FIRM WAS FORMED
IN 1955 OR 1956.  THERE WERE THREE PARTNERS IN THE FIRM, THE THREE
INDIVIDUALS LISTED IN THE FIRM NAME.  IN ADDITION, THE FIRM HAD ABOUT
SIX EMPLOYEES:  TWO OTHER ATTORNEYS WHO WERE ASSOCIATED WITH THE FIRM,
ONE PART-TIME; THREE SECRETARIES; AND A RECEPTIONIST.  PETITIONER'S
SECRETARY DOUBLED AS THE PARTNERSHIP'S BOOKKEEPER, UNDER THE DIRECTION
OF PETITIONER AND THE FIRM'S INDEPENDENT ACCOUNTANT.  THE FIRM'S
FINANCIAL RECORDS WERE THEREFORE MAINTAINED IN PETITIONER'S OFFICE
DURING HIS TENURE AT THE FIRM. 

BELLIS LEFT THE FIRM IN LATE 1969 TO JOIN ANOTHER LAW FIRM.  THE
PARTNERSHIP WAS DISSOLVED, ALTHOUGH IT IS APPARENTLY STILL IN THE
PROCESS OF WINDING UP ITS AFFAIRS.  KOLSBY AND WOLF CONTINUED IN
PRACTICE TOGETHER AS A NEW PARTNERSHIP, AT THE SAME PREMISES.  BELLIS
MOVED TO NEW OFFICES, LEAVING THE FORMER PARTNERSHIP'S FINANCIAL
RECORDS WITH KOLSBY AND WOLF, WHERE THEY REMAINED FOR MORE THAN THREE
YEARS.  IN FEBRUARY OR MARCH 1973, HOWEVER, SHORTLY BEFORE ISSUANCE OF
THE SUBPOENA IN THIS CASE, PETITIONER'S SECRETARY, ACTING AT THE
DIRECTION OF PETITIONER OR HIS ATTORNEY, REMOVED THE RECORDS FROM THE
OLD PREMISES AND BROUGHT THEM TO BELLIS' NEW OFFICE. 

ON MAY 1, 1973, BELLIS WAS SERVED WITH A SUBPOENA DIRECTING HIM TO
APPEAR AND TESTIFY BEFORE A FEDERAL GRAND JURY AND TO BRING WITH HIM
"ALL PARTNERSHIP RECORDS CURRENTLY IN YOUR POSSESSION FOR THE
PARTNERSHIP OF BELLIS, KOLSBY & WOLF FOR THE YEARS 1968 AND 1969." 
APP. 6.  PETITIONER APPEARED ON MAY 9, BUT REFUSED TO PRODUCE THE
RECORDS, CLAIMING, INTER ALIA, HIS FIFTH AMENDMENT PRIVILEGE, AGAINST
COMPULSORY SELF-INCRIMINATION.  AFTER A HEARING BEFORE THE DISTRICT
COURT ON MAY 9 AND 10, THE COURT HELD THAT PETITIONER'S PRIVILEGE DID
NOT EXTEND TO THE PARTNERSHIP'S FINANCIAL BOOKS AND RECORDS, AND
ORDERED THEIR PRODUCTION BY MAY 16.  /1/  WHEN PETITIONER REAPPEARED
BEFORE THE GRAND JURY ON THAT DATE AND AGAIN REFUSED TO PRODUCE THE
SUBPOENAED RECORDS, THE DISTRICT COURT HELD HIM IN CIVIL CONTEMPT, AND
RELEASED HIM ON HIS OWN RECOGNIZANCE PENDING AN EXPEDITED APPEAL. 

ON JULY 9, 1973, THE COURT OF APPEALS AFFIRMED IN A PER CURIAM
OPINION.  IN RE GRAND JURY INVESTIGATION, 483 F.2D 961 (CA3 1973). 
RELYING ON THIS COURT'S DECISION IN UNITED STATES V. WHITE, 322 U.S.
694 (1944), THE COURT OF APPEALS STATED THAT "THE PRIVILEGE HAS ALWAYS
BEEN REGARDED AS PERSONAL IN THE SENSE THAT IT APPLIES ONLY TO AN
INDIVIDUAL'S WORDS OR PERSONAL PAPERS' AND THUS HELD THAT THE PRIVILEGE
AGAINST SELF-INCRIMINATION DID NOT APPLY TO "RECORDS OF AN ENTITY SUCH
AS A PARTNERSHIP WHICH HAS A RECOGNIZABLE JURIDICAL EXISTENCE APART
FROM ITS MEMBERS."  483 F.2D, AT 962.  AFTER MR. JUSTICE WHITE HAD
STAYED THE MANDATE OF THE COURT OF APPEALS ON AUGUST 1, WE GRANTED
CERTIORARI, 414 U.S. 907 (1973), TO CONSIDER THIS INTERPRETATION OF THE
FIFTH AMENDMENT PRIVILEGE AND THE APPLICABILITY OF OUR WHITE DECISION
IN THE CIRCUMSTANCES OF THIS CASE.  WE AFFIRM. 

IT HAS LONG BEEN ESTABLISHED, OF COURSE, THAT THE FIFTH AMENDMENT
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION PROTECTS AN INDIVIDUAL
FROM COMPELLED PRODUCTION OF HIS PERSONAL PAPERS AND EFFECTS AS WELL AS
COMPELLED ORAL TESTIMONY.  IN BOYD V. UNITED STATES, 116 U.S. 616
(1886), WE HELD THAT "ANY FORCIBLE AND COMPULSORY EXTORTION OF A MAN'S
OWN TESTIMONY OR OF HIS PRIVATE PAPERS TO BE USED AS EVIDENCE TO
CONVICT HIM OF CRIME" WOULD VIOLATE THE FIFTH AMENDMENT PRIVILEGE. 
ID., AT 630; SEE ALSO ID., AT 633 - 635; WILSON V. UNITED STATES, 221
U.S. 361, 377 (1911).  THE PRIVILEGE APPLIES TO THE BUSINESS RECORDS OF
THE SOLE PROPRIETOR OR SOLE PRACTITIONER AS WELL AS TO PERSONAL
DOCUMENTS CONTAINING MORE INTIMATE INFORMATION ABOUT THE INDIVIDUAL'S
PRIVATE LIFE.  BOYD V. UNITED STATES, SUPRA; COUCH V. UNITED STATES,
409 U.S. 322 (1973); HILL V. PHILPOTT, 445 F.2D 144 (CA7), CERT.
DENIED, 404 U.S. 991 (1971); STUART V. UNITED STATES, 416 F.2D 459, 462
(CA5 1969).  AS THE COURT EXPLAINED IN UNITED STATES V. WHITE, SUPRA,
AT 698, "(THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION . . .
IS DESIGNED TO PREVENT THE USE OF LEGAL PROCESS TO FORCE FROM THE LIPS
OF THE ACCUSED INDIVIDUAL THE EVIDENCE NECESSARY TO CONVICT HIM OR TO
FORCE HIM TO PRODUCE AND AUTHENTICATE ANY PERSONAL DOCUMENTS OR EFFECTS
THAT MIGHT INCRIMINATE HIM."  SEE ALSO CURCIO V. UNITED STATES, 354
U.S. 118, 125 (1957); COUCH V. UNITED STATES, SUPRA, AT 330 - 331. 

ON THE OTHER HAND, AN EQUALLY LONG LINE OF CASES HAS ESTABLISHED
THAT AN INDIVIDUAL CANNOT RELY UPON THE PRIVILEGE TO AVOID PRODUCING
THE RECORDS OF A COLLECTIVE ENTITY WHICH ARE IN HIS POSSESSION IN A
REPRESENTATIVE CAPACITY, EVEN IF THESE RECORDS MIGHT INCRIMINATE HIM
PERSONALLY.  THIS DOCTRINE WAS FIRST ANNOUNCED IN A SERIES OF CASES
DEALING WITH CORPORATE RECORDS.  IN WILSON V. UNITED STATES, SUPRA, THE
COURT HELD THAT AN OFFICER OF CORPORATION COULD NOT CLAIM HIS PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION TO JUSTIFY A REFUSAL TO PRODUCE
THE CORPORATE BOOKS AND RECORDS IN RESPONSE TO A GRAND JURY SUBPOENA
DUCES TECUM DIRECTED TO THE CORPORATION.  A COMPANION CASE, DREIER V.
UNITED STATES, 221 U.S. 394 (1911), HELD THAT THE SAME RESULT FOLLOWED
WHEN THE SUBPOENA REQUIRING PRODUCTION OF THE CORPORATE BOOKS WAS
DIRECTED TO THE INDIVIDUAL CORPORATE OFFICER.  IN WHEELER V. UNITED
STATES, 226 U.S. 478 (1913), THE COURT HELD THAT NO FIFTH AMENDMENT
PRIVILEGE COULD BE CLAIMED WITH RESPECT TO CORPORATE RECORDS EVEN
THOUGH THE CORPORATION HAD PREVIOUSLY BEEN DISSOLVED.  AND GRANT V.
UNITED STATES, 227 U.S. 74 (1913), APPLIED THIS PRINCIPLE TO THE
RECORDS OF A DISSOLVED CORPORATION WHERE THE RECORDS WERE IN THE
POSSESSION OF THE INDIVIDUAL WHO HAD BEEN THE CORPORATION'S SOLE
SHAREHOLDER. 

TO SOME EXTENT, THESE DECISIONS WERE BASED UPON THE PARTICULAR
INCIDENTS OF THE CORPORATE FORM, THE COURT OBSERVING THAT A CORPORATION
HAS LIMITED POWERS GRANTED TO IT BY THE STATE IN ITS CHARTER, AND IS
SUBJECT TO THE RETAINED "VISITORIAL POWER" OF THE STATE TO INVESTIGATE
ITS ACTIVITIES.  SEE, E.G., WILSON V. UNITED STATES, SUPRA, AT 382 -
385.  BUT ANY THOUGHT THAT THE PRINCIPLE FORMULATED IN THESE DECISIONS
WAS LIMITED TO CORPORATE RECORDS WAS PUT TO REST IN UNITED STATES V.
WHITE, SUPRA.  IN WHITE, WE HELD THAT AN OFFICER OF AN UNINCORPORATED
ASSOCIATION, A LABOR UNION, COULD NOT CLAIM HIS PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION TO JUSTIFY HIS REFUSAL TO PRODUCE THE
UNION'S RECORDS PURSUANT TO A GRAND JURY SUBPOENA.  WHITE ANNOUNCED THE
GENERAL RULE THAT THE PRIVILEGE COULD NOT BE EMPLOYED BY AN INDIVIDUAL
TO AVOID PRODUCTION OF THE RECORDS OF AN ORGANIZATION, WHICH HE HOLDS
IN A REPRESENTATIVE CAPACITY AS CUSTODIAN ON BEHALF OF THE GROUP.  322
U.S., AT 699 - 700.  RELYING ON WHITE, WE HAVE SINCE UPHELD COMPELLED
PRODUCTION OF THE RECORDS OF A VARIETY OF ORGANIZATIONS OVER
INDIVIDUAL'S CLAIMS OF FIFTH AMENDMENT PRIVILEGE.  SEE, E.G., UNITED
STATES V. FLEISCHMAN, 339 U.S. 349, 357 - 372 (1951) (COMMUNIST PARTY
OF DENVER); MCPHAUL V. UNITED STATES, 364 U.S. 372, 380 (1960) (CIVIL
RIGHTS CONGRESS).  SEE ALSO CURCIO V. UNITED STATES, 354 U.S. 118
(1957) (LOCAL LABOR UNION). 

THESE DECISIONS REFLECT THE COURT'S CONSISTENT VIEW THAT THE
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION SHOULD BE "LIMITED TO
ITS HISTORIC FUNCTION OF PROTECTING ONLY THE NATURAL INDIVIDUAL FROM
COMPULSORY INCRIMINATION THROUGH HIS OWN TESTIMONY OR PERSONAL
RECORDS."  UNITED STATES V. WHITE, SUPRA, AT 701.  WHITE IS ONLY ONE OF
THE MANY CASES TO EMPHASIZE THAT THE FIFTH AMENDMENT PRIVILEGE IS A
PURELY PERSONAL ONE, MOST RECENT AMONG THEM BEING THE COURT'S DECISION
LAST TERM IN COUCH V. UNITED STATES, 409 U.S., AT 327 - 328.  RELYING
ON THIS FUNDAMENTAL POLICY LIMITING THE SCOPE OF THE PRIVILEGE, THE
COURT IN WHITE HELD THAT "THE PAPERS AND EFFECTS WHICH THE PRIVILEGE
PROTECTS MUST BE THE PRIVATE PROPERTY OF THE PERSON CLAIMING THE
PRIVILEGE, OR AT LEAST IN HIS POSSESSION IN A PURELY PERSONAL
CAPACITY."  322 U.S., AT 699.  MR. JUSTICE MURPHY REASONED THAT
"INDIVIDUALS, WHEN ACTING AS REPRESENTATIVES OF A COLLECTIVE GROUP,
CANNOT BE SAID TO BE EXERCISING THEIR PERSONAL RIGHTS AND DUTIES NOR TO
BE ENTITLED TO THEIR PURELY PERSONAL PRIVILEGES.  RATHER THEY ASSUME
THE RIGHTS, DUTIES AND PRIVILEGES OF THE ARTIFICIAL ENTITY OR
ASSOCIATION OF WHICH THEY ARE AGENTS OR OFFICERS AND THEY ARE BOUND BY
ITS OBLIGATIONS."  IBID. 

SINCE NO ARTIFICIAL ORGANIZATION MAY UTILIZE THE PERSONAL PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION, THE COURT FOUND THAT IT FOLLOWS
THAT AN INDIVIDUAL ACTING IN HIS OFFICIAL CAPACITY ON BEHALF OF THE
ORGANIZATION MAY LIKEWISE NOT TAKE ADVANTAGE OF HIS PERSONAL
PRIVILEGE.  IN VIEW OF THE INESCAPABLE FACT THAT AN ARTIFICIAL ENTITY
CAN ONLY ACT TO PRODUCE ITS RECORDS THROUGH ITS INDIVIDUAL OFFICERS OR
AGENTS, RECOGNITION OF THE INDIVIDUAL'S CLAIM OF PRIVILEGE WITH RESPECT
TO THE FINANCIAL RECORDS OF THE ORGANIZATION WOULD SUBSTANTIALLY
UNDERMINE THE UNCHALLENGED RULE THAT THE ORGANIZATION ITSELF IS NOT
ENTITLED TO CLAIM ANY FIFTH AMENDMENT PRIVILEGE, AND LARGELY FRUSTRATE
LEGITIMATE GOVERNMENTAL REGULATION OF SUCH ORGANIZATIONS.  MR. JUSTICE
MURPHY PUT IT WELL: 

"THE SCOPE AND NATURE OF THE ECONOMIC ACTIVITIES OF INCORPORATED AND
UNINCORPORATED ORGANIZATIONS AND THEIR REPRESENTATIVES DEMAND THAT THE
CONSTITUTIONAL POWER OF THE FEDERAL AND STATE GOVERNMENTS TO REGULATE
THOSE ACTIVITIES BE CORRESPONDINGLY EFFECTIVE.  THE GREATER PORTION OF
EVIDENCE OF WRONGDOING BY AN ORGANIZATION OR ITS REPRESENTATIVES IS
USUALLY TO BE FOUND IN THE OFFICIAL RECORDS AND DOCUMENTS OF THAT
ORGANIZATION.  WERE THE CLOAK OF THE PRIVILEGE TO BE THROWN AROUND
THESE IMPERSONAL RECORDS AND DOCUMENTS, EFFECTIVE ENFORCEMENT OF MANY
FEDERAL AND STATE LAWS WOULD BE IMPOSSIBLE.  THE FRAMERS OF THE
CONSTITUTIONAL GUARANTEE AGAINST COMPULSORY SELF-DISCLOSURE, WHO WERE
INTERESTED PRIMARILY IN PROTECTING INDIVIDUAL CIVIL LIBERTIES, CANNOT
BE SAID TO HAVE INTENDED THE PRIVILEGE TO BE AVAILABLE TO PROTECT
ECONOMIC OR OTHER INTERESTS OF SUCH ORGANIZATIONS SO AS TO NULLIFY
APPROPRIATE GOVERNMENTAL REGULATIONS."  ID., AT 700 (CITATIONS
OMITTED).  SEE ALSO WILSON V. UNITED STATES, SUPRA, AT 384 - 385. 

THE COURT'S DECISIONS HOLDING THE PRIVILEGE INAPPLICABLE TO THE
RECORDS OF A COLLECTIVE ENTITY ALSO REFLECT A SECOND, THOUGH OBVIOUSLY
INTERRELATED POLICY UNDERLYING THE PRIVILEGE, THE PROTECTION OF AN
INDIVIDUAL'S RIGHT TO A "PRIVATE ENCLAVE WHERE HE MAY LEAD A PRIVATE
LIFE.'"  MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 55 (1964).  WE HAVE
RECOGNIZED THAT THE FIFTH AMENDMENT "RESPECTS A PRIVATE INNER SANCTUM
OF INDIVIDUAL FEELING AND THOUGHT"--AN INNER SANCTUM WHICH NECESSARILY
INCLUDES AN INDIVIDUAL'S PAPERS AND EFFECTS TO THE EXTENT THAT THE
PRIVILEGE BARS THEIR COMPULSORY PRODUCTION AND AUTHENTICATION--AND
"PROSCRIBES STATE INTRUSION TO EXTRACT SELF-CONDEMNATION."  COUCH V.
UNITED STATES, SUPRA, AT 327.  SEE ALSO GRISWOLD V. CONNECTICUT, 381
U.S. 479, 484 (1965).  PROTECTION OF INDIVIDUAL PRIVACY WAS THE MAJOR
THEME RUNNING THROUGH THE COURT'S DECISION IN BOYD, SEE, E.G., 116
U.S., AT 630, AND IT WAS ON THIS BASIS THAT THE COURT IN WILSON
DISTINGUISHED THE CORPORATE RECORDS INVOLVED IN THAT CASE FROM THE
PRIVATE PAPERS AT ISSUE IN BOYD.  SEE 221 U.S., AT 377, 380. 

BUT A SUBSTANTIAL CLAIM OF PRIVACY OR CONFIDENTIALITY CANNOT OFTEN
BE MAINTAINED WITH RESPECT TO THE FINANCIAL RECORDS OF AN ORGANIZED
COLLECTIVE ENTITY.  CONTROL OF SUCH RECORDS IS GENERALLY STRICTLY
REGULATED BY STATUTE OR BY THE RULES AND REGULATIONS OF THE
ORGANIZATION, AND ACCESS TO THE RECORDS IS GENERALLY GUARANTEED TO
OTHERS IN THE ORGANIZATION.  IN SUCH CIRCUMSTANCES, THE CUSTODIAN OF
THE ORGANIZATION'S RECORDS LACKS THE CONTROL OVER THEIR CONTENT AND
LOCATION AND THE RIGHT TO KEEP THEM FROM THE VIEW OF OTHERS WHICH WOULD
BE CHARACTERISTIC OF A CLAIM OF PRIVACY AND CONFIDENTIALITY.  MR.
JUSTICE MURPHY RECOGNIZED THE SIGNIFICANCE OF THIS IN WHITE; HE POINTED
OUT THAT ORGANIZATIONAL RECORDS "(USUALLY, IF NOT ALWAYS . . . ARE OPEN
TO INSPECTION BY THE MEMBERS," THAT "THIS RIGHT MAY BE ENFORCED ON
APPROPRIATE OCCASIONS BY AVAILABLE LEGAL PROCEDURES," AND THAT "(THEY
THEREFORE EMBODY NO ELEMENT OF PERSONAL PRIVACY."  322 U.S., AT 699 -
700.  AND HERE LIES THE MODERN-DAY RELEVANCE OF THE VISITORIAL POWERS
DOCTRINE RELIED UPON BY THE COURT IN WILSON AND THE OTHER CASES DEALING
WITH CORPORATE RECORDS; THE COURT'S HOLDING THAT NO PRIVILEGE EXISTS
"WHERE, BY VIRTUE OF THEIR CHARACTER AND THE RULES OF LAW APPLICABLE TO
THEM, THE BOOKS AND PAPERS ARE HELD SUBJECT TO EXAMINATION BY THE
(STATE)," 221 U.S., AT 382, CAN EASILY BE UNDERSTOOD AS A RECOGNITION
THAT CORPORATE RECORDS DO NOT CONTAIN THE REQUISITE ELEMENT OF PRIVACY
OR CONFIDENTIALITY ESSENTIAL FOR THE PRIVILEGE TO ATTACH.     THE
ANALYSIS OF THE COURT IN WHITE, OF COURSE, ONLY MAKES SENSE IN THE
CONTEXT OF WHAT THE COURT DESCRIBED AS "ORGANIZED, INSTITUTIONAL
ACTIVITY."  322 U.S., AT 701.  THIS ANALYSIS PRESUPPOSES THE EXISTENCE
OF AN ORGANIZATION WHICH IS RECOGNIZED AS AN INDEPENDENT ENTITY APART
FROM ITS INDIVIDUAL MEMBERS.  THE GROUP MUST BE RELATIVELY WELL
ORGANIZED AND STRUCTURED, AND NOT MERELY A LOSSE, INFORMAL ASSOCIATION
OF INDIVIDUALS.  IT MUST MAINTAIN A DISTINCT SET OF ORGANIZATIONAL
RECORDS, AND RECOGNIZE RIGHTS IN ITS MEMBERS OF CONTROL AND ACCESS TO
THEM.  AND THE RECORDS SUBPOENAED MUST IN FACT BE ORGANIZATIONAL
RECORDS HELD IN A REPRESENTATIVE CAPACITY.  IN OTHER WORDS, IT MUST BE
FAIR TO SAY THAT THE RECORDS DEMANDED ARE THE RECORDS OF THE
ORGANIZATION RATHER THAN THOSE OF THE INDIVIDUAL UNDER WHITE. 

THE COURT IN WHITE HAD LITTLE DIFFICULTY IN CONCLUDING THAT THE
DEMAND FOR PRODUCTION OF THE OFFICIAL RECORDS OF A LABOR UNION, WHETHER
NATIONAL OR LOCAL, IN THE CUSTODY OF AN OFFICER OF THE UNION, MET THESE
TESTS.  SEE ID., AT 701 - 703.  THE COURT OBSERVED THAT A UNION'S
EXISTENCE IN FACT, IF NOT IN LAW, WAS "AS PERPETUAL AS THAT OF ANY
CORPORATION," ID., AT 701, THAT THE UNION OPERATED UNDER FORMAL
CONSTITUTIONS, RULES, AND BYLAWS, AND THAT IT ENGAGED IN A BROAD SCOPE
OF ACTIVITIES IN WHICH IT WAS RECOGNIZED AS AN INDEPENDENT ENTITY.  THE
COURT ALSO POINTED OUT THAT THE OFFICIAL UNION BOOKS AND RECORDS WERE
DISTINCT FROM THE PERSONAL BOOKS AND RECORDS OF ITS MEMBERS, THAT THE
UNION RESTRICTED THE PERMISSIBLE USES OF THESE RECORDS, AND THAT IT
RECOGNIZED ITS MEMBERS' RIGHTS TO INSPECT THEM.  ALTHOUGH THE COURT WAS
AWARE THAT THE INDIVIDUAL MEMBERS MIGHT LEGALLY HOLD TITLE TO THE UNION
RECORDS, THE COURT CHARACTERIZED THIS INTEREST AS "NOMINAL" RATHER THAN
A SIGNIFICANT PERSONAL INTEREST IN THEM. 

WE THINK IT IS SIMILARLY CLEAR THAT PARTNERSHIPS MAY AND FREQUENTLY
DO REPRESENT ORGANIZED INSTITUTIONAL ACTIVITY SO AS TO PRECLUDE ANY
CLAIM OF FIFTH AMENDMENT PRIVILEGE WITH RESPECT TO THE PARTNERSHIP'S
FINANCIAL RECORDS.  SOME OF THE MOST POWERFUL PRIVATE INSTITUTIONS IN
THE NATION ARE CONDUCTED IN THE PARTNERSHIP FORM.  WALL STREET LAW
FIRMS AND STOCK BROKERAGE FIRMS PROVIDE SIGNIFICANT EXAMPLES.  THESE
ARE OFTEN LARGE, IMPERSONAL, HIGHLY STRUCTURED ENTERPRISES OF
ESSENTIALLY PERPETUAL DURATION.  THE PERSONAL INTEREST OF ANY
INDIVIDUAL PARTNER IN THE FINANCIAL RECORDS OF A FIRM OF THIS SCOPE IS
OBVIOUSLY HIGHLY ATTENUATED.  IT IS INCONCEIVABLE THAT A BROKERAGE
HOUSE WITH OFFICES FROM COAST TO COAST HANDLING MILLIONS OF DOLLARS OF
INVESTMENT TRANSACTIONS ANNUALLY SHOULD BE ENTITLED TO IMMUNIZE ITS
RECORDS FROM SEC SCRUTINY SOLELY BECAUSE IT OPERATES AS A PARTNERSHIP
RATHER THAN IN THE CORPORATE FORM.  ALTHOUGH NONE OF THE REPORTED CASES
HAS INVOLVED A PARTNERSHIP OF QUITE THIS MAGNITUDE, IT IS HARDLY
SURPRISING THAT ALL OF THE COURTS OF APPEALS WHICH HAVE ADDRESSED THE
QUESTION HAVE CONCLUDED THAT WHITE'S ANALYSIS REQUIRES REJECTION OF ANY
CLAIM OF PRIVILEGE IN THE FINANCIAL RECORDS OF A LARGE BUSINESS
ENTERPRISE CONDUCTED IN THE PARTNERSHIP FORM.  IN RE MAL BROTHERS
CONTRACTING CO., 444 F.2D 615 (CA3), CERT. DENIED, 404 U.S. 857 (1971);
UNITED STATES V. SILVERSTEIN, 314 F.2D 789 (CA2), CERT. DENIED, 374
U.S. 807 (1963); UNITED STATES V. WERNES, 157 F.2D 797, 800 (CA7
1946).  SEE ALSO UNITED STATES V. ONASSIS, 125 F.SUPP.  190, 205 - 210
(DC 1954).  EVEN THOSE LOWER COURTS WHICH HAVE HELD THE PRIVILEGE
APPLICABLE IN THE CONTEXT OF A SMALLER PARTNERSHIP HAVE FREQUENTLY
ACKNOWLEDGED THAT NO ABSOLUTE EXCLUSION OF THE PARTNERSHIP FORM FROM
THE WHITE RULE GENERALLY APPLICABLE TO UNINCORPORATED ASSOCIATIONS IS
WARRANTED.  SEE, E.G., UNITED STATES V. COGAN, 257 F.SUPP.  170, 173 -
174 (SDNY 1966); IN RE SUBPOENA DUCES TECUM, 81 F.SUPP.  418, 421 (ND
CAL. 1948). 

IN THIS CASE, HOWEVER, WE ARE REQUIRED TO EXPLORE THE OUTER LIMITS
OF THE ANALYSIS OF THE COURT IN WHITE.  PETITIONER ARGUES THAT IN VIEW
OF THE MODEST SIZE OF THE PARTNERSHIP INVOLVED HERE, IT IS UNREALISTIC
TO CONSIDER THE FIRM AS AN ENTITY INDEPENDENT OF ITS THREE PARTNERS;
RATHER, HE CLAIMS, THE LAW FIRM EMBODIES LITTLE MORE THAN THE PERSONAL
LEGAL PRACTICE OF THE INDIVIDUAL PARTNERS.  MOREOVER, PETITIONER ARGUES
THAT HE HAS A SUBSTANTIAL AND DIRECT OWNERSHIP INTEREST IN THE
PARTNERSHIP RECORDS, AND DOES NOT HOLD THEM IN A REPRESENTATIVE
CAPACITY.  /2/ 

DESPITE THE FORCE OF THESE ARGUMENTS, WE CONCLUDE THAT THE LOWER
COURTS PROPERLY APPLIED THE WHITE RULE IN THE CIRCUMSTANCES OF THIS
CASE.  WHILE SMALL, THE PARTNERSHIP HERE DID HAVE AN ESTABLISHED
INSTITUTIONAL IDENTITY INDEPENDENT OF ITS INDIVIDUAL PARTNERS.  THIS
WAS NOT AN INFORMAL ASSOCIATION OR A TEMPORARY ARRANGEMENT FOR THE
UNDERTAKING OF A FEW PROJECTS OF SHORT-LIVED DURATION.  RATHER, THE
PARTNERSHIP REPRESENTED A FORMAL INSTITUTIONAL ARRANGEMENT ORGANIZED
FOR THE CONTINUING CONDUCT OF THE FIRM'S LEGAL PRACTICE.  THE
PARTNERSHIP WAS IN EXISTENCE FOR NEARLY 15 YEARS PRIOR TO ITS VOLUNTARY
DISSOLUTION.  /3/  ALTHOUGH IT MAY NOT HAVE HAD A FORMAL CONSTITUTION
OR BYLAWS TO GOVERN ITS INTERNAL AFFAIRS, STATE PARTNERSHIP LAW IMPOSED
ON THE FIRM A CERTAIN ORGANIZATIONAL STRUCTURE IN THE ABSENCE OF ANY
CONTRARY AGREEMENT BY THE PARTNERS, /4/  FOR EXAMPLE, IT GUARANTEED TO
EACH OF THE PARTNERS THE EQUAL RIGHT TO PARTICIPATE IN THE MANAGEMENT
AND CONTROL OF THE FIRM, PA. STAT. ANN., TIT. 59, 51 (E) (1964), AND
PRESCRIBED THAT MAJORITY RULE GOVERNED THE CONDUCT OF THE FIRM'S
BUSINESS, 51 (H).  /5/  THE FIRM MAINTAINED A BANK ACCOUNT IN THE
PARTNERSHIP NAME, HAD STATIONERY USING THE FIRM NAME ON ITS LETTERHEAD,
AND, IN GENERAL, HELD ITSELF OUT TO THIRD PARTIES AS AN ENTITY WITH AN
INDEPENDENT INSTITUTIONAL IDENTITY.  IT EMPLOYED SIX PERSONS IN
ADDITION TO ITS PARTNERS, INCLUDING TWO OTHER ATTORNEYS WHO PRACTICED
LAW ON BEHALF OF THE FIRM, RATHER THAN AS INDIVIDUALS ON THEIR OWN
BEHALF.  IT FILED SEPARATE PARTNERSHIP RETURNS FOR FEDERAL TAX
PURPOSES, AS REQUIRED BY 6031 OF THE INTERNAL REVENUE CODE, 26 U.S.C.
6031.  /6/  STATE LAW PERMITTED THE FIRM TO BE SUED, PA. RULE CIV.
PROC. 2128, AND TO HOLD TITLE TO PROPERTY, PA. STAT. ANN., TIT. 59, 13
(3), IN THE PARTNERSHIP NAME, AND GENERALLY REGARDED THE PARTNERSHIP AS
A DISTINCT ENTITY FOR NUMEROUS OTHER PURPOSES.  /7/ 

EQUALLY IMPORTANT, WE BELIEVE IT IS FAIR TO SAY THAT PETITIONER IS
HOLDING THE SUBPOENAED PARTNERSHIP RECORDS IN A REPRESENTATIVE
CAPACITY.  /8/  THE DOCUMENTS WHICH PETITIONER HAS BEEN ORDERED TO
PRODUCE ARE MERELY THE FINANCIAL BOOKS AND RECORDS OF THE PARTNERSHIP. 
/9/  THESE REFLECT THE RECEIPTS AND DISBURSEMENTS OF THE ENTIRE FIRM,
INCLUDING INCOME GENERATED BY AND SALARIES PAID TO THE EMPLOYEES OF THE
FIRM, AND THE FINANCIAL TRANSACTIONS OF THE OTHER PARTNERS.  PETITIONER
HOLDS THESE RECORDS SUBJECT TO THE RIGHTS GRANTED TO THE OTHER PARTNERS
BY STATE PARTNERSHIP LAW.  PETITIONER HAS NO DIRECT OWNERSHIP INTEREST
IN THE RECORDS; RATHER, UNDER STATE LAW, THEY ARE PARTNERSHIP PROPERTY,
AND PETITIONER'S INTEREST IN PARTNERSHIP PROPERTY IS A DERIVATIVE
INTEREST SUBJECT TO SIGNIFICANT LIMITATIONS.  SEE ELLIS V. ELLIS, 415
PA. 412, 415 - 416, 203 A.2D 547, 549 - 550 (1964).  PETITIONER HAS NO
RIGHT TO USE THIS PROPERTY FOR OTHER THAN PARTNERSHIP PURPOSES WITHOUT
THE CONSENT OF THE OTHER PARTNERS.  PA. STAT. ANN., TIT. 59, 72 (2)
(A).  PETITIONER IS OF COURSE ACCOUNTABLE TO THE PARTNERSHIP AS A
FIDUCIARY, 54 (1), AND HIS POSSESSION OF THE FIRM'S FINANCIAL RECORDS
IS ESPECIALLY SUBJECT TO HIS FIDUCIARY OBLIGATIONS TO THE OTHER
PARTNERS.  INDEED, PENNSYLVANIA LAW SPECIFICALLY PROVIDES THAT "EVERY
PARTNER SHALL AT ALL TIMES HAVE ACCESS TO AND MAY INSPECT AND COPY ANY
OF (THE PARTNERSHIP BOOKS)."  52.  /10/  TO FACILITATE THIS RIGHT OF
ACCESS, PETITIONER WAS REQUIRED TO KEEP THESE FINANCIAL BOOKS AND
RECORDS AT THE FIRM'S PRINCIPAL PLACE OF BUSINESS, AT LEAST DURING THE
ACTIVE LIFE OF THE ARTNERSHIP.  IBID.  THE OTHER PARTNERS IN THE FIRM
WERE--AND STILL ARE--ENTITLED TO ENFORCE THESE RIGHTS THROUGH LEGAL
ACTION BY DEMANDING PRODUCTION OF THE RECORDS IN A SUIT FOR A FORMAL
ACCOUNTING.  55.  /11/ 

IT SHOULD BE NOTED THAT PETITIONER WAS CONTENT TO LEAVE THESE
RECORDS WITH THE OTHER MEMBERS OF THE PARTNERSHIP AT THEIR PRINCIPAL
PLACE OF BUSINESS FOR MORE THAN THREE YEARS AFTER HE LEFT THE FIRM. 
MOREOVER, THE GOVERNMENT CONTENDS THAT THE OTHER PARTNERS IN THE FIRM
HAD AGREED TO TURN THE RECORDS OVER TO THE GRAND JURY BEFORE
DISCOVERING THAT PETITIONER HAD REMOVED THEM FROM THEIR OFFICES, AND
THAT THEY MADE AN UNAVAILING DEMAND UPON PETITIONER TO RETURN THE
RECORDS.  WHETHER OR NOT PETITIONER'S PRESENT POSSESSION OF THESE
RECORDS IS AN UNLAWFUL INFRINGEMENT OF THE RIGHTS OF THE OTHER
PARTNERS, THIS PROVIDES ADDITIONAL SUPPORT FOR OUR CONCLUSION THAT IT
IS THE ORGANIZATIONAL CHARACTER OF THE RECORDS AND THE REPRESENTATIVE
ASPECT OF PETITIONER'S PRESENT POSSESSION OF THEM WHICH PREDOMINATES
OVER HIS BELATEDLY DISCOVERED PERSONAL INTEREST IN THEM. 

PETITIONER RELIES HEAVILY ON LANGUAGE IN THE COURT'S OPINION IN
WHITE WHICH SUGGESTS THAT THE "TEST" FOR DETERMINING THE APPLICABILITY
OF THE FIFTH AMENDMENT PRIVILEGE IN THIS AREA IS WHETHER THE
ORGANIZATION "HAS A CHARACTER SO IMPERSONAL IN THE SCOPE OF ITS
MEMBERSHIP AND ACTIVITIES THAT IT CANNOT BE SAID TO EMBODY OR REPRESENT
THE PURELY PRIVATE OR PERSONAL INTERESTS OF ITS CONSTITUENTS, BUT
RATHER TO EMBODY THEIR COMMON OR GROUP INTERESTS ONLY."  322 U.S., AT
701.  WE MUST ADMIT OUR AGREEMENT WITH THE SOLICITOR GENERAL'S
OBSERVATION THAT "IT IS DIFFICULT TO KNOW PRECISELY WHAT SITUATIONS THE
FORMULATION IN WHITE WAS INTENDED TO INCLUDE WITHIN THE PROTECTION OF
THE PRIVILEGE."  BRIEF FOR UNITED STATES 21.  THE COURT IN WHITE, AFTER
STATING ITS TEST, DID NOT REALLY APPLY IT, NOR HAS ANY OF THE
SUBSEQUENT DECISIONS OF THIS COURT.  ON ITS FACE, THE TEST IS NOT
PARTICULARLY HELPFUL IN THE BROAD RANGE OF CASES, INCLUDING THIS ONE,
WHERE THE ORGANIZATION EMBODIES NEITHER "PURELY . . . PERSONAL
INTERESTS" NOR "GROUP INTERESTS ONLY," BUT RATHER SOME COMBINATION OF
THE TWO. 

IN ANY EVENT, WE DO NOT BELIEVE THAT THE COURT'S FORMULATION IN
WHITE CAN BE REDUCED TO A SIMPLE PROPOSITION BASED SOLELY UPON THE SIZE
OF THE ORGANIZATION.  IT IS WELL SETTLED THAT NO PRIVILEGE CAN BE
CLAIMED BY THE CUSTODIAN OF CORPORATE RECORDS, REGARDLESS OF HOW SMALL
THE CORPORATION MAY BE.  GRANT V. UNITED STATES, 227 U.S. 74 (1913);
FINEBERG V. UNITED STATES, 393 F.2D 417, 420 (CA9 1968); HAIR INDUSTRY,
LTD. V. UNITED STATES, 340 F.2D 510 (CA2 1965); CF. GEORGE CAMPBELL
PAINTING CORP. V. REID, 392 U.S. 286 (1968).  EVERY STATE HAS NOW
ADOPTED LAWS PERMITTING INCORPORATION OF PROFESSIONAL ASSOCIATIONS, AND
INCREASING NUMBERS OF LAWYERS, DOCTORS, AND OTHER PROFESSIONALS ARE
CHOOSING TO CONDUCT THEIR BUSINESS AFFAIRS IN THE CORPORATE FORM RATHER
THAN THE MORE TRADITIONAL PARTNERSHIP.  WHETHER CORPORATION OR
PARTNERSHIP, MANY OF THESE FIRMS WILL BE INDEPENDENT ENTITIES WHOSE
FINANCIAL RECORDS ARE HELD BY A MEMBER OF THE FIRM IN A REPRESENTATIVE
CAPACITY.  IN THESE CIRCUMSTANCES, THE APPLICABILITY OF THE PRIVILEGE
SHOULD NOT TURN ON AN INSUBSTANTIAL DIFFERENCE IN THE FORM OF THE
BUSINESS ENTERPRISE.  SEE IN RE GRAND JURY SUBPOENA DUCES TECUM, 358
F.SUPP.  661, 668 (MD. 1973). 

THIS MIGHT BE A DIFFERENT CASE IF IT INVOLVED A SMALL FAMILY
PARTNERSHIP, SEE UNITED STATES V. SLUTSKY, 352 F.SUPP.  1105 (SDNY
1972); IN RE SUBPOENA DUCES TECUM, 81 F.SUPP., AT 421, OR, AS THE
SOLICITOR GENERAL SUGGESTS, BRIEF FOR UNITED STATES 22 - 23, IF THERE
WERE SOME OTHER PRE-EXISTING RELATIONSHIP OF CONFIDENTIALITY AMONG THE
PARTNERS.  BUT IN THE CIRCUMSTANCES OF THIS CASE, PETITIONER'S
POSSESSION OF THE PARTNERSHIP'S FINANCIAL RECORDS IN WHAT CAN BE FAIRLY
SAID TO BE A REPRESENTATIVE CAPACITY COMPELS OUR HOLDING THAT HIS
PERSONAL PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION IS
INAPPLICABLE. 

    AFFIRMED. 

/1/  ALTHOUGH THE WORDING OF THE SUBPOENA WAS ARGUABLY BROAD ENOUGH
TO ENCOMPASS THEM, THE DISTRICT COURT EXPRESSLY EXCLUDED ANY CLIENT
FILES FROM THE SCOPE OF ITS ORDER. 

/2/  PETITIONER ALSO ARGUES THAT WE HAVE ALREADY DECIDED THE ISSUE
PRESENTED IN THIS CASE, AND HELD THAT THE FIFTH AMENDMENT PRIVILEGE
COULD BE CLAIMED WITH RESPECT TO PARTNERSHIP RECORDS, IN THE BOYD
CASE.  IT IS TRUE THAT THE NOTICE TO PRODUCE INVOLVED IN BOYD WAS IN
FACT ISSUED TO E. A. BOYD & SONS, A PARTNERSHIP.  SEE 116 U.S. 616,
619.  HOWEVER, AT THIS EARLY STAGE IN THE DEVELOPMENT OF OUR FIFTH
AMENDMENT JURISPRUDENCE, THE POTENTIAL SIGNIFICANCE OF THIS FACT WAS
NOT OBSERVED BY EITHER THE PARTIES OR THE COURT.  THE PARTIES TREATED
THE INVOICE AT ISSUE AS A PRIVATE BUSINESS RECORD, AND THE CONTENTION
THAT IT MIGHT BE A PARTNERSHIP RECORD HELD IN A REPRESENTATIVE
CAPACITY, AND THUS NOT WITHIN THE SCOPE OF THE PRIVILEGE, WAS NOT
RAISED.  THE COURT THEREFORE DECIDED THE CASE ON THE PREMISE THAT IT
INVOLVED THE "COMPULSORY PRODUCTION OF A MAN'S PRIVATE PAPERS."  ID.,
AT 622.  IT WAS ONLY AFTER BOYD HAD HELD THAT THE FIFTH AMENDMENT
PRIVILEGE APPLIED TO THE COMPELLED PRODUCTION OF DOCUMENTS THAT THE
QUESTION OF THE EXTENSION OF THIS PRINCIPLE TO THE RECORDS OF
ARTIFICIAL ENTITIES AROSE.  WE DO NOT BELIEVE THAT THE COURT IN BOYD
CAN BE SAID TO HAVE DECIDED THE ISSUE PRESENTED TODAY.  SEE UNITED
STATES V. ONASSIS, 125 F.SUPP.  190, 208 (DC 1954). 

IN ANY EVENT, THE COURT IN BOYD DID NOT INQUIRE INTO THE NATURE OF
THE BOYD & SONS PARTNERSHIP OR THE CAPACITY IN WHICH THE INVOICE WAS
ACQUIRED OR HELD.  ABSENT SUCH AN INQUIRY, WE ARE UNABLE TO DETERMINE
HOW OUR DECISION TODAY WOULD AFFECT THE RESULT OF BOYD ON THE FACTS OF
THAT CASE.  SEE INFRA, AT 101. 

/3/  PETITIONER PROPERLY CONCEDES THAT THE DISSOLUTION OF THE
PARTNERSHIP DOES NOT AFFORD HIM ANY GREATER CLAIM TO THE PRIVILEGE THAN
HE WOULD HAVE IF THE FIRM WERE STILL ALIVE.  BRIEF FOR PETITIONER 31 N.
12.  UNDER PENNSYLVANIA LAW, DISSOLUTION OF THE PARTNERSHIP DOES NOT
TERMINATE THE ENTITY; RATHER IT CONTINUES UNTIL THE WINDING UP OF THE
PARTNERSHIP AFFAIRS IS COMPLETED, PA. STAT. ANN., TIT. 59, 92 (1964),
WHICH HAS NOT YET OCCURRED IN THIS CASE.  MOREOVER, THIS COURT'S
DECISIONS HAVE MADE CLEAR THAT THE DISSOLUTION OF A CORPORATION DOES
NOT GIVE THE CUSTODIAN OF THE CORPORATE RECORDS ANY GREATER CLAIM TO
THE FIFTH AMENDMENT PRIVILEGE.  WHEELER V. UNITED STATES, 226 U.S. 478,
489 - 490 (1913); GRANT V. UNITED STATES, 227 U.S. 74, 80 (1913).  WE
SEE NO REASON WHY THE SAME SHOULD NOT BE TRUE OF THE RECORDS OF A
PARTNERSHIP AFTER ITS DISSOLUTION.     /4/  THE RECORD IN THIS CASE IS
QUITE SKETCHY, AND IT IS UNCLEAR WHETHER THE PARTNERSHIP HERE HAD
ADOPTED A FORMAL PARTNERSHIP AGREEMENT.  PETITIONER APPARENTLY HAD A
45% INTEREST IN THE PROFITS OF THE FIRM, WHICH SUGGESTS THAT THERE MAY
HAVE BEEN SUCH AN AGREEMENT.  HOWEVER, THERE IS NO INDICATION THAT ANY
SUCH AGREEMENT MADE ANY MATERIAL CHANGE IN THE PROVISIONS OF STATE LAW
REGARDING THE MANAGEMENT AND CONTROL OF THE FIRM OR THE RIGHTS OF THE
OTHER PARTNERS WITH RESPECT TO THE FIRM'S FINANCIAL RECORDS.  IN ANY
EVENT, THE EXISTENCE OF A FORMAL PARTNERSHIP AGREEMENT WOULD MERELY
REINFORCE OUR CONCLUSION THAT THE PARTNERSHIP IS PROPERLY REGARDED AS
AN INDEPENDENT ENTITY WITH A RELATIVELY FORMAL ORGANIZATION. 

/5/  PENNSYLVANIA HAS ADOPTED THE PROVISIONS OF THE UNIFORM
PARTNERSHIP ACT, WHICH IS ALSO IN FORCE IN 40 OTHER STATES AND THE
DISTRICT OF COLUMBIA. 

/6/  AS WE OBSERVED ONLY LAST TERM, A "PARTNERSHIP IS REGARDED AS AN
INDEPENDENTLY RECOGNIZABLE ENTITY APART FROM THE AGGREGATE OF ITS
PARTNERS"  FOR A NUMBER OF PURPOSES UNDER THE INTERNAL REVENUE CODE. 
UNITED STATES V. BASYE, 410 U.S. 441, 448 (1973). 

/7/  OF COURSE, STATE AND FEDERAL LAW DO NOT TREAT PARTNERSHIPS AS
DISTINCT ENTITIES FOR ALL PURPOSES.  BUT WE THINK THAT PARTNERSHIPS
BEAR ENOUGH OF THE INDICIA OF LEGAL ENTITIES TO BE TREATED AS SUCH FOR
THE PURPOSE OF OUR ANALYSIS OF THE FIFTH AMENDMENT ISSUE PRESENTED IN
THIS CASE.  THE FACT THAT PARTNERSHIPS ARE NOT VIEWED SOLELY AS
ENTITIES IS IMMATERIAL FOR THIS PURPOSE.  SEE UNITED STATES V. WHITE,
322 U.S. 694, 697 (1944). 

/8/  PETITIONER ARGUES THAT AS A PARTNER IN THE FIRM, HE HAS AN
INTEREST IN THE FIRM'S RECORDS AS CO-OWNER WHICH ENTITLES HIM TO CLAIM
THE PRIVILEGE AGAINST SELF-INCRIMINATION.  BUT SUCH AN OWNERSHIP
INTEREST EXISTS IN A PARTNERSHIP OF ANY SIZE.  MOREOVER, THE SAME
OWNERSHIP INTEREST IS PRESENTED IN THE CASE OF A LABOR UNION OR OTHER
UNINCORPORATED ASSOCIATION.  THE COURT'S DECISION IN WHITE CLEARLY
ESTABLISHED THAT THE MERE EXISTENCE OF SUCH AN OWNERSHIP INTEREST IS
NOT IN ITSELF SUFFICIENT TO ESTABLISH A CLAIM OF PRIVILEGE.  SEE ALSO
WHEELER V. UNITED STATES, 226 U.S., AT 489 - 490; GRANT V. UNITED
STATES, 227 U.S., AT 79 - 80. 

MR. JUSTICE DOUGLAS ARGUES IN DISSENT THAT THE PARTNERSHIP AS AN
ENTITY IS NOT UNDER INVESTIGATION BY THE GRAND JURY, RATHER THAT
PETITIONER IS THE TARGET OF THE INQUIRY.  ASSUMING THAT THIS IS TRUE,
IT DOES NOT GIVE PETITIONER ANY GREATER CLAIM TO THE PRIVILEGE.  WE
HAVE REJECTED THIS SAME ARGUMENT IN HOLDING THAT THE PRIVILEGE CANNOT
BE MAINTAINED WITH RESPECT TO CORPORATE RECORDS, IN WORDS FULLY
APPLICABLE HERE: 

"NOR IS IT AN ANSWER TO SAY THAT IN THE PRESENT CASE THE INQUIRY
BEFORE THE GRAND JURY WAS NOT DIRECTED AGAINST THE CORPORATION ITSELF. 
THE APPELLANT HAD NO GREATER RIGHT TO WITHHOLD THE BOOKS BY REASON OF
THE FACT THAT THE CORPORATION WAS NOT CHARGED WITH CRIMINAL ABUSES. 
THAT, IF THE CORPORATION HAD BEEN SO CHARGED, HE WOULD HAVE BEEN
COMPELLED TO SUBMIT THE BOOKS TO INSPECTION, DESPITE THE CONSEQUENCES
TO HIMSELF, SUFFICIENTLY SHOWS THE ABSENCE OF ANY BASIS FOR A CLAIM ON
HIS PART OF PERSONAL PRIVILEGE AS TO THEM; IT COULD NOT DEPEND UPON THE
QUESTION WHETHER OR NOT ANOTHER WAS ACCUSED."  WILSON V. UNITED STATES,
221 U.S. 361, 385 (1911). 

/9/  SIGNIFICANTLY, THE DISTRICT COURT HERE EXCLUDED ANY CLIENT
FILES FROM THE SCOPE OF ITS ORDER.  SEE N. 1, SUPRA.  A DIFFERENT CASE
MIGHT BE PRESENTED IF PETITIONER HAD BEEN ORDERED TO PRODUCE FILES
CONTAINING WORK WHICH HE HAD PERSONALLY PERFORMED ON BEHALF OF HIS
CLIENTS, EVEN IF THESE FILES MIGHT FOR SOME PURPOSES BE VIEWED AS THOSE
OF THE PARTNERSHIP. 

/10/  THE COURT IN WHITE, IN POINTING OUT THAT UNION RECORDS WERE
GENERALLY OPEN TO INSPECTION BY THE MEMBERS, 322 U.S., AT 699 - 700,
RELIED UPON GUTHRIE V. HARKNESS, 199 U.S. 148, 153 (1905), WHERE THE
COURT OBSERVED THAT "THE MEMBERS OF AN ORDINARY PARTNERSHIP (HAVE THE
SAME RIGHT) TO EXAMINE THEIR COMPANY'S BOOKS." 

/11/  TO IMPLEMENT THESE RIGHTS, PENNSYLVANIA LAW PERMITS ANY
PARTNER TO BRING SUIT AGAINST THE PARTNERSHIP, AND THE PARTNERSHIP TO
SUE ANY PARTNER.  PA. RULE CIV. PROC. 2129. 

MR. JUSTICE DOUGLAS, DISSENTING. 

BELLIS, THE PETITIONER, WAS FORMERLY ONE OF THREE PARTNERS IN A
SMALL LAW FIRM; THE PARTNERSHIP WAS DISSOLVED, AND BELLIS CURRENTLY HAS
LAWFUL POSSESSION OF THE FIRM'S RECORDS.  THE GRAND JURY HAS SUBPOENAED
THOSE RECORDS APPARENTLY FOR THE PURPOSE OF A TAX INVESTIGATION
DIRECTED AGAINST BELLIS PERSONALLY.  /1/  HE REFUSED TO COMPLY,
CLAIMING HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION, BUT
THE COURT TODAY HOLDS THAT PRIVILEGE NOT AVAILABLE TO BELLIS.  I THINK
THE CASE IS CLEARLY CONTROLLED BY BOYD V. UNITED STATES, 116 U.S. 616,
AND THUS I DISSENT. 

IN BOYD THE COURT HELD THAT THE FIFTH AMENDMENT PRIVILEGE EXTENDS TO
THE PRODUCTION OF PAPERS PERSONALLY HELD AS WELL AS TO THE COMPULSION
OF TESTIMONY.  "(WE HAVE BEEN UNABLE TO PERCEIVE THAT THE SEIZURE OF A
MAN'S PRIVATE BOOKS AND PAPERS TO BE USED IN EVIDENCE AGAINST HIM IS
SUBSTANTIALLY DIFFERENT FROM COMPELLING HIM TO BE A WITNESS AGAINST
HIMSELF."  BOYD, SUPRA, AT 633.  IN PURPORTING TO DISTINGUISH THIS CASE
FROM BOYD, THE COURT RELIES ON UNITED STATES V. WHITE, 322 U.S. 694,
INVOLVING A SUBPOENA DIRECTED TO A UNION, NOT TO ANY INDIVIDUAL, FOR
THE PRODUCTION OF OFFICIAL UNION DOCUMENTS.  WHITE IN TURN RELIED ON
CASES HOLDING THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION IS A
PERSONAL ONE, WHICH CAN BE CLAIMED ONLY BY NATURAL PERSONS, AND NOT BY
CORPORATIONS.  ID., AT 699, CITING HALE V. HENKEL, 201 U.S. 43; WILSON
V. UNITED STATES, 221 U.S. 361; ESSGEE CO. V. UNITED STATES, 262 U.S.
151.  "(THE PAPERS AND EFFECTS WHICH THE PRIVILEGE PROTECTS MUST BE THE
PRIVATE PROPERTY OF THE PERSON CLAIMING THE PRIVILEGE, OR AT LEAST IN
HIS POSSESSION IN A PURELY PERSONAL CAPACITY."  WHITE, SUPRA, AT 699. 

IN EXTENDING THESE CORPORATION CASES TO THE UNION PAPERS INVOLVED IN
WHITE, WE STRESSED THAT THE TEST IS NOT A MECHANICAL ONE, BUT "WHETHER
ONE CAN FAIRLY SAY UNDER ALL THE CIRCUMSTANCES THAT A PARTICULAR TYPE
OF ORGANIZATION HAS A CHARACTER SO IMPERSONAL IN THE SCOPE OF ITS
MEMBERSHIP AND ACTIVITIES THAT IT CANNOT BE SAID TO EMBODY OR REPRESENT
THE PURELY PRIVATE OR PERSONAL INTERESTS OF ITS CONSTITUENTS, BUT
RATHER TO EMBODY THEIR COMMON OR GROUP INTERESTS ONLY."  ID., AT 701. 
IN FINDING THAT THE UNION WAS SUCH AN IMPERSONAL ORGANIZATION, THE
COURT POINTED OUT THAT THE UNION'S EXISTENCE IS NOT DEPENDENT UPON THE
LIFE OF ANY MEMBER, THAT IT SEPARATELY OWNS PROPERTY APART FROM ANY OF
ITS MEMBERS OR OFFICERS, THAT ITS TREASURY EXISTS APART FROM THE
PERSONAL FUNDS OF ITS MEMBERS, AND THAT WITHOUT SPECIAL AUTHORIZATION
NO MEMBER CAN BIND THE UNION.  332 U.S., AT 701 - 702.  NONE OF THESE
FACTORS ARE PRESENT HERE IN THIS SMALL THREE-MAN LAW FIRM. 
PENNSYLVANIA, AS HAVE MOST STATES, HAS ADOPTED THE UNIFORM PARTNERSHIP
ACT, PA. STAT. ANN., TIT. 59, 1.  THIS PARTNERSHIP WOULD DISSOLVE
AUTOMATICALLY UPON THE DEATH OF ANY MEMBER, PA. STAT. ANN., TIT. 59,
93, AND ANY PARTNER CAN BIND THE ENTIRE PARTNERSHIP IN THE CONDUCT OF
ITS AFFAIRS, PA. STAT. ANN., TIT. 59, 31.  NO NEW MEMBER CAN JOIN
WITHOUT UNANIMOUS CONSENT OF THE PARTNERS, 51 (G).  IN PENNSYLVANIA AS
IN MANY STATES A PARTNERSHIP CAN HOLD AND SELL PROPERTY IN ITS OWN
NAME, PA. STAT. ANN., TIT. 15, 12773; PA. STAT. ANN., TIT. 59, 13, BUT
EACH PARTNER INDIVIDUALLY IS A CO-OWNER OF THAT PROPERTY, PA. STAT.
ANN., TIT. 59, 72, AND IN MANY SUBSTANTIVE LEGAL RESPECTS THE OWNERSHIP
BY THE PARTNERSHIP IS DIFFERENT IN KIND FROM ORDINARY OWNERSHIP OF
PROPERTY.  ANY LEGAL LIABILITIES ARISING FROM PROPERTY OWNED BY THE
PARTNERSHIP, OF COURSE, EXTEND TO THE PARTNERS INDIVIDUALLY IF THE
COMMON PARTNERSHIP ASSETS ARE EXHAUSTED, PA. STAT. ANN., TIT. 59, 37. 

I WOULD TREAT A PARTNERSHIP AS BOYD TREATED IT.  THIS PARTNERSHIP IS
AS DIFFERENT FROM A LABOR UNION OR THE RUN OF CORPORATIONS AS BLACK IS
FROM WHITE.  BY THE COURT'S OPINION A MAN AND WIFE WHO FORM A LAW
PARTNERSHIP OR MEDICAL PARTNERSHIP OR DENTAL PARTNERSHIP ARE TREATED AS
SOME KIND OF NEW "ENTITY" SO AS TO EXPAND THE POWER OF GOVERNMENT INTO
AN AREA FROM WHICH THE FIFTH AMENDMENT EXCLUDES IT.  THE NATURE OF A
PARTNERSHIP IS NOT EVEN A FEDERAL QUESTION; IT TURNS ON ITS CREATOR,
THE STATE.  PENNSYLVANIA TELLS US BY ITS SUPREME COURT THAT A
PENNSYLVANIA PARTNERSHIP "IS TREATED AS AN AGGREGATE OF INDIVIDUALS AND
NOT AS A SEPARATE ENTITY."  TAX REVIEW BOARD V. SHAPIRO CO., 409 PA.
253, 260, 185 A.2D 529, 533.  FOR FEDERAL INCOME TAX PURPOSES THE
PARTNERSHIP PAYS NO TAX, IT IS MERELY THE CONDUIT THROUGH WHICH INCOME
PASSES TO THE TAXPAYING PARTNERS.  INTERNAL REVENUE CODE 701, 702, 26
U.S.C. 701, 702. 

THE MAJORITY REFERS TO LARGE LAW FIRMS OR BROKERAGE HOUSES AS
EXAMPLES OF PARTNERSHIPS WHICH TAKE ON THE CHARACTERISTICS OF
INDEPENDENT ENTITIES IN THE MANNER OF CORPORATIONS.  NONE THAT I KNOW
COULD PROPERLY BE CONSIDERED AN ORGANIZATION WITH "A CHARACTER SO
IMPERSONAL IN THE SCOPE OF ITS MEMBERSHIP AND ACTIVITIES THAT IT CANNOT
BE SAID TO EMBODY OR REPRESENT THE PURELY PRIVATE OR PERSONAL INTERESTS
OF ITS CONSTITUENTS."  WHITE, SUPRA, AT 701.  THAT CERTAINLY IS NOT THE
CASE PRESENTED HERE.  AT TIMES THE LAW MAY TREAT UNLIKES AS IF THEY
WERE ALIKE; BUT IT SURPASSES UNDERSTANDING WHEN A TWO- OR THREE-MAN
PARTNERSHIP IS TREATED AS MEMBERS OR OFFICERS OF A GIANT CORPORATION OR
A GIANT UNION.  SEE UNITED STATES V. COGAN, 257 F.SUPP.  170 (SDNY
1966) (FRANKEL, J.).  THIS SMALL THREE-MAN FIRM HAD NO REAL EXISTENCE
APART FROM THE THREE INDIVIDUAL ATTORNEYS. 

ALL THIS ONLY GOES TO DEMONSTRATE THAT BELLIS WAS NOT HOLDING THE
RECORDS INVOLVED HERE AS A REPRESENTATIVE OF SOME SEPARATE, IMPERSONAL
ENTITY WITH NO RIGHTS UNDER THE FIFTH AMENDMENT.  THE RECORDS HE HOLDS
ARE HIS OWN, IN BOTH A LEGAL AND A PRACTICAL SENSE.  NOR COULD THE
GRAND JURY INVESTIGATION RESULT IN ANY FINDING OF TAX LIABILITY BY THE
PARTNERSHIP AS A SEPARATE ENTITY, FOR THE PARTNERSHIP HAS NO TAX
OBLIGATIONS OTHER THAN THE FILING OF INFORMATIONAL FORMS THAT AID IN
DETERMINING THE LIABILITIES OF THE INDIVIDUAL PARTNERS.  IT WAS ONLY
BELLIS INDIVIDUALLY, OR HIS TWO FORMER PARTNERS, AGAINST WHOM THE
INVESTIGATION COULD HAVE BEEN DIRECTED.  IF BELLIS HAD BEEN CONDUCTING
A SOLO PRACTICE, HIS CLAIM OF PRIVILEGE COULD NOT BE OVERRIDDEN, AS THE
GOVERNMENT HERE NECESSARILY CONCEDED.  I AM UNABLE TO PERCEIVE WHY HE
SHOULD BE HELD TO HAVE FORFEITED THAT CONSTITUTIONAL RIGHT BY JOINING
WITH TWO OTHERS IN A PARTNERSHIP. 

INDEED, THE SIGNIFICANCE OF THE DISTINCTION IS SO OBSCURE THAT THE
COURT DID NOT EVEN SEE FIT TO NOTICE IT IN BOYD ITSELF, WHERE IN FACT
THE SUBPOENA WAS DIRECTED AT A PARTNERSHIP AND NOT AN INDIVIDUAL.  AS
THE GOVERNMENT HERE CONCEDES, BRIEF FOR UNITED STATES 14 N. 10, BOTH
PARTIES AND THE COURT ASSUMED IN BOYD THAT THE PARTNERSHIP DOCUMENTS
THERE SOUGHT WERE PERSONAL PROPERTY. 

"THIS COMMAND OF THE FIFTH AMENDMENT . . . REGISTERS AN IMPORTANT
ADVANCE IN THE DEVELOPMENT OF OUR LIBERTY--'ONE OF THE GREAT LANDMARKS
IN MAN'S STRUGGLE TO MAKE HIMSELF CIVILIZED.'  TIME HAS NOT SHOWN THAT
PROTECTION FROM THE EVILS AGAINST WHICH THIS SAFEGUARD WAS DIRECTED IS
NEEDLESS OR UNWARRANTED.  THIS CONSTITUTIONAL PROTECTION MUST NOT BE
INTERPRETED IN A HOSTILE OR NIGGARDLY SPIRIT."  ULLMANN V. UNITED
STATES, 350 U.S. 422, 426.  BUT IT IS THE NIGGARDLY VIEW WHICH PREVAILS
TODAY, WITH THE COURT EFFECTIVELY OVERRULING BOYD IN HOLDING THAT THE
GOVERNMENT CAN COMPEL AN INDIVIDUAL TO PRODUCE HIS PRIVATE RECORDS TO
AID A GOVERNMENT INVESTIGATION OF HIM.  THAT IS A VIEW I CANNOT JOIN. 

/1/ SEE APP. 24; TR. OF ORAL ARG. 8. 

LEONARD SARNER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS LOUIS LIPSCHITZ. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL CRAMPTON, STUART A. SMITH, AND MEYER ROTHWACKS. 
..END :




COOPER STEVEDORING CO. V. KOPKE, INC., 417 U.S. 106 


       COOPER STEVEDORING CO., INC. V. FRITZ KOPKE, INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 73 - 726.  ARGUED APRIL 15 - 16, 1974--DECIDED MAY 28,

   1974; 479 F.2D 1041, AFFIRMED. 


    A LONGSHOREMAN WAS INJURED WHEN, WHILE LOADING A VESSEL OWNED

  BY ONE RESPONDENT AND TIME CHARTERED TO THE OTHER (HEREINAFTER

  COLLECTIVELY THE VESSEL), HE STEPPED INTO A CONCEALED GAP BETWEEN

  CRATES WHICH HAD PREVIOUSLY BEEN LOADED BY PETITIONER.  THE

  LONGSHOREMAN THEN SUED THE VESSEL, WHICH FILED A THIRD-PARTY

  COMPLAINT AGAINST PETITIONER.  THE DISTRICT COURT FOUND BOTH THE

  VESSEL AND PETITIONER NEGLIGENT, AND DIVIDED THE LIABILITY

  EQUALLY.  ON PETITIONER'S APPEAL, THE COURT OF APPEALS AFFIRMED. 

HELD:  THE AWARD OF CONTRIBUTION BETWEEN JOINT TORTFEASORS IN A

  NONCOLLISION MARITIME CASE WAS PROPER UNDER THE CIRCUMSTANCES. 

  ON THE FACTS, NO COUNTERVAILING CONSIDERATIONS DETRACT FROM THE

  WELL-ESTABLISHED MARITIME RULE ALLOWING CONTRIBUTION BETWEEN

  JOINT TORTFEASORS, SINCE WHERE THE LONGSHOREMAN, NOT BEING AN

  EMPLOYEE OF PETITIONER, COULD HAVE PROCEEDED AGAINST EITHER THE

  VESSEL OR PETITIONER, OR BOTH, AND THUS COULD HAVE ELECTED TO

  MAKE PETITIONER BEAR ITS SHARE OF THE DAMAGES, THERE IS NO REASON

  WHY THE VESSEL SHOULD NOT BE ACCORDED THE SAME RIGHT.  HALCYON

LINES V. HAENN SHIP CORP., 342 U.S. 282, DISTINGUISHED.  PP. 110

  - 115. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL

  MEMBERS JOINED EXCEPT STEWART, J., WHO TOOK NO PART IN THE

  DECISION OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE EXTENT TO WHICH CONTRIBUTION BETWEEN JOINT
TORTFEASORS MAY BE OBTAINED IN A MARITIME ACTION FOR PERSONAL
INJURIES.  THE S. S. KARINA, A VESSEL OWNED AND OPERATED BY RESPONDENT
FRITZ KOPKE, INC., AND UNDER TIME CHARTER TO RESPONDENT ALCOA STEAMSHIP
CO., WAS LOADED AT MOBILE, ALABAMA, WITH PALLETIZED CRATES OF CARGO BY
PETITIONER COOPER STEVEDORING CO. THE VESSEL THEN PROCEEDED TO THE PORT
OF HOUSTON WHERE LONGSHOREMEN EMPLOYED BY MID-GULF STEVEDORES, INC.,
BEGAN TO LOAD SACKED CARGO.  THE HOUSTON LONGSHOREMEN HAD TO USE THE
TOP OF THE TIER OF CRATES LOADED BY COOPER AS A FLOOR ON WHICH TO WALK
AND STOW THE HOUSTON CARGO.  ONE OF THESE LONGSHOREMEN, TROY SESSIONS,
INJURED HIS BACK WHEN HE STEPPED INTO A GAP BETWEEN THE CRATES WHICH
HAD BEEN CONCEALED BY A LARGE PIECE OF CORRUGATED PAPER. 

SESSIONS BROUGHT SUIT IN THE DISTRICT COURT AGAINST KOPKE AND ALCOA
(HEREINAFTER COLLECTIVELY THE VESSEL) SEEKING TO RECOVER DAMAGES FOR
HIS INJURIES.  /1/  THE VESSEL FILED A THIRD-PARTY COMPLAINT AGAINST
COOPER ALLEGING THAT IF SESSIONS WAS INJURED BY ANY UNSEAWORTHY
CONDITION OF THE VESSEL OR AS THE RESULT OF NEGLIGENCE OTHER THAN HIS
OWN, SUCH CONDITION OR NEGLIGENCE RESULTED FROM THE CONDUCT OF COOPER
AND ITS EMPLOYEES.  THE VESSEL ALSO FILED A SIMILAR THIRD-PARTY
COMPLAINT AGAINST MID-GULF. 

PRIOR TO TRIAL, MID-GULF AND THE VESSEL APPARENTLY ENTERED INTO AN
AGREEMENT UNDER WHICH MID-GULF WOULD INDEMNIFY THE VESSEL AGAINST ANY
RECOVERY WHICH SESSIONS MIGHT OBTAIN.  PURSUANT TO THIS AGREEMENT GULF
WAS DISMISSED AS A THIRD-PARTY DEFENDANT AND MID-GULF'S ATTORNEYS WERE
SUBSTITUTED AS COUNSEL FOR THE VESSEL.  /2/ 

THE CASE THEN WENT TO TRIAL, AFTER WHICH THE DISTRICT COURT, WHICH
SAT WITHOUT A JURY, ORALLY ANNOUNCED ITS FINDINGS OF FACT AND
CONCLUSIONS OF LAW.  THE COURT FOUND THAT THE VESSEL'S FAILURE EITHER
TO MAKE ADEQUATE ARRANGEMENTS TO ASSURE THAT THE STOW WOULD NOT MOVE
AND LEAVE SPACES IN THE COURSE OF ITS TRIP FROM MOBILE TO HOUSTON OR TO
PUT SOME TYPE OF DUNNAGE ON TOP OF THE STOW HAD RESULTED IN AN UNSAFE
PLACE TO WORK AND UNSEAWORTHY CONDITION.  THE COURT FOUND THAT COOPER
WAS ALSO NEGLIGENT IN NOT STOWING THE CRATES IN A MANNER IN WHICH
LONGSHOREMEN AT SUBSEQUENT PORTS COULD SAFELY WORK ON TOP OF THEM. 
FINDING IT DIFFICULT FROM THE EVIDENCE TO "EVALUATE EXACTLY THE
RESPONSIBILITY BETWEEN THE SHIPOWNER ON THE ONE HAND AND COOPER ON THE
OTHER," THE DISTRICT COURT DIVIDED THE LIABILITY EQUALLY BETWEEN THE
VESSEL AND COOPER.  /3/  JUDGMENT WAS ENTERED ALLOWING SESSIONS TO
RECOVER $38,679.90 FROM THE VESSEL AND ALLOWING THE VESSEL TO RECOVER
$19,339.95 FROM COOPER. 

COOPER APPEALED, /4/  ASSERTING THAT THE DISTRICT COURT'S AWARD OF
CONTRIBUTION IN A NONCOLLISION MARITIME CASE WAS IN DIRECT CONFLICT
WITH THIS COURT'S DECISIONS IN HALCYON LINES V. HAENN SHIP CORP., 342
U.S. 282 (1952), AND ATLANTIC COAST LINE R. CO. V. ERIE LACKAWANNA R.
CO., 406 U.S. 340 (1972).  THE COURT OF APPEALS REJECTED THIS
CONTENTION, RELYING ON PRIOR DECISIONS OF THE FIFTH AND SECOND CIRCUITS
TO THE EFFECT THAT THE APPARENT PROHIBITION AGAINST CONTRIBUTION IN
NONCOLLISION MARITIME CASES ANNOUNCED IN HALCYON AND ATLANTIC WAS
INAPPLICABLE WHERE THE JOINT TORTFEASOR AGAINST WHOM CONTRIBUTION IS
SOUGHT IS NOT IMMUNE FROM TORT LIABILITY BY STATUTE.  SEE HORTON &
HORTON, INC. V. T/SJ.E. DYER, 428 F.2D 1131 (CA5 1970), CERT. DENIED,
400 U.S. 993 (1971); WATZ V. ZAPATA OFF-SHORE CO., 431 F.2D 100 (CA5
1970); IN RE SEABOARD SHIPPING CORP., 449 F.2D 132 (CA2 1971), CERT.
DENIED, 406 U.S. 949 (1972).  THE COURT OF APPEALS FOUND THIS PRINCIPLE
APPLICABLE HERE SINCE SESSIONS, IN ADDITION TO SUING THE VESSEL, COULD
HAVE PROCEEDED DIRECTLY AGAINST COOPER AS THE LATTER WAS NOT HIS
EMPLOYER AND, THEREFORE, NOT SHIELDED BY THE LIMITED LIABILITY OF THE
LONGSHOREMEN'S AND HARBOR WORKERS'  COMPENSATION ACT.  33 U.S.C. 905. 
479 F.2D 1041 (1973).  WE GRANTED CERTIORARI TO CONSIDER THIS QUESTION,
414 U.S. 1127 (1974), AND NOW AFFIRM. 

WHERE TWO VESSELS COLLIDE DUE TO THE FAULT OF EACH, AN ADMIRALTY
DOCTRINE OF ANCIENT LINEAGE PROVIDES THAT THE MUTUAL WRONGDOERS SHALL
SHARE EQUALLY THE DAMAGES SUSTAINED BY EACH.  IN THE NORTH STAR, 106
U.S. 17 (1882), MR. JUSTICE BRADLEY TRACED THE DOCTRINE BACK TO THE
LAWS OF OLERON WHICH DATE FROM THE 12TH CENTURY, AND ITS ROOTS NO DOUBT
GO MUCH DEEPER.  EVEN THOUGH THE COMMON LAW OF TORTS REJECTED A RIGHT
OF CONTRIBUTION AMONG JOINT TORTFEASORS, THE PRINCIPLE OF DIVISION OF
DAMAGES IN ADMIRALTY HAS, OVER THE YEARS, BEEN LIBERALLY EXTENDED BY
THIS COURT IN DIRECTIONS DEEMED JUST AND PROPER.  IN ONE LINE OF CASES,
FOR EXAMPLE, THE COURT EXPANDED THE DOCTRINE TO ENCOMPASS NOT ONLY
DAMAGE TO THE VESSELS INVOLVED IN A COLLISION, BUT PERSONAL INJURIES
AND PROPERTY DAMAGE CAUSED INNOCENT THIRD PARTIES AS WELL.  SEE, E.G.,
THE WASHINGTON, 9 WALL.  513 (1870); THE ALABAMA, 92 U.S. 695 (1876);
THE ATLAS, 93 U.S. 302 (1876); THE CHATTAHOOCHEE, 173 U.S. 540 (1899). 
SEE GENERALLY THE MAX MORRIS, 137 U.S. 1, 8 - 11 (1890).  IN OTHER
CASES, THE COURT HAS RECOGNIZED THE APPLICATION OF THE RULE OF DIVIDED
DAMAGES IN CIRCUMSTANCES NOT INVOLVING A COLLISION BETWEEN TWO VESSELS,
AS WHERE A SHIP STRIKES A PIER DUE TO THE FAULT OF BOTH THE SHIPOWNER
AND THE PIER OWNER, SEE ATLEE V. PACKET CO., 21 WALL.  389 (1875), OR
WHERE A VESSEL GOES AGROUND IN A CANAL DUE TO THE NEGLIGENCE OF BOTH
THE SHIPOWNER AND THE CANAL COMPANY, SEE WHITE OAK TRANSP.  CO. V.
BOSTON, CAPE COD & NEW YORK CANAL CO., 258 U.S. 341 (1922).  SEE ALSO
THE MAX MORRIS, SUPRA, AT 13 - 14.  INDEED, IT IS FAIR TO SAY THAT
APPLICATION OF THE RULE OF DIVISION OF DAMAGES BETWEEN JOINT
TORTFEASORS IN ADMIRALTY CASES HAS BEEN AS BROAD AS ITS UNDERLYING
RATIONALES.  THE INTERESTS OF SAFETY DICTATE THAT WHERE TWO PARTIES
"ARE BOTH IN FAULT, THEY SHOULD BEAR THE DAMAGE EQUALLY, TO MAKE THEM
MORE CAREFUL."  THE ALABAMA, SUPRA, AT 697.  AND A "MORE EQUAL
DISTRIBUTION OF JUSTICE" CAN BEST BE ACHIEVED BY AMELIORATING THE
COMMON-LAW RULE AGAINST CONTRIBUTION WHICH PERMITS A PLAINTIFF TO FORCE
ONE OF TWO WRONGDOERS TO BEAR THE ENTIRE LOSS, THOUGH THE OTHER MAY
HAVE BEEN EQUALLY OR MORE TO BLAME.  SEE THE MAX MORRIS, SUPRA, AT 14. 

DESPITE THE OCCASIONAL BREADTH OF ITS DICTUM, OUR OPINION IN HALCYON
SHOULD BE READ WITH THIS HISTORICAL BACKDROP IN MIND.  VIEWED FROM THIS
PERSPECTIVE, AND TAKING INTO ACCOUNT THE FACTUAL CIRCUMSTANCES
PRESENTED IN THAT CASE, WE THINK HALCYON STANDS FOR A MORE LIMITED RULE
THAN THE ABSOLUTE BAR AGAINST CONTRIBUTION IN NONCOLLISION CASES URGED
UPON US BY PETITIONER.  /5/ 

IN HALCYON, A SHIP REPAIR EMPLOYEE WAS INJURED WHILE MAKING REPAIRS
ON HALCYON'S SHIP.  HE SUED HALCYON FOR DAMAGES, ALLEGING NEGLIGENCE
AND UNSEAWORTHINESS.  SINCE THE EMPLOYEE WAS COVERED BY THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 33 U.S.C. 901 -
950, HE WAS PROHIBITED FROM SUING HIS EMPLOYER HAENN.  NEVERTHELESS
HALCYON IMPLEADED HAENN AS A JOINT TORTFEASOR SEEKING CONTRIBUTION FOR
THE JUDGMENT RECOVERED BY THE EMPLOYEE.  WE GRANTED CERTIORARI IN
HALCYON TO RESOLVE A CONFLICT WHICH HAD ARISEN AMONG THE CIRCUITS AS TO
WHETHER A SHIPOWNER COULD RECOVER CONTRIBUTION IN THESE CIRCUMSTANCES. 
SEE 342 U.S., AT 283 - 284, AND N. 3.  ONE COURT HAD HELD THAT THE
EMPLOYER'S LIMITATION OF LIABILITY VIS-A-VIS ITS EMPLOYEE UNDER THE
HARBOR WORKER'S ACT BARRED CONTRIBUTION.  SEE AMERICAN MUTUAL LIABILITY
INSURANCE CO. V. MATTHEWS, 182 F.2D 322 (CA2 1950).  ANOTHER CIRCUIT
HAD HELD THAT THE ACT DID NOT BAR CONTRIBUTION, SEE UNITED STATES V.
ROTHSCHILD INT'L STEVEDORING CO., 183 F.2D 181 (CA9 1950), AND YET A
THIRD CIRCUIT, IN THE CASE REVIEWED IN HALCYON, HAD PERMITTED
CONTRIBUTION BUT LIMITED IT TO THE AMOUNT WHICH THE INJURED EMPLOYEE
COULD HAVE COMPELLED THE EMPLOYER TO PAY HAD HE ELECTED TO CLAIM
COMPENSATION UNDER THE ACT.  187 F.2D 403 (CA3 1951). 

BEFORE THIS COURT, BOTH PARTIES IN HALCYON AGREED THAT "LIMITING AN
EMPLOYER'S LIABILITY FOR CONTRIBUTION TO THOSE UNCERTAIN AMOUNTS
RECOVERABLE UNDER THE HARBOR WORKERS' ACT IS IMPRACTICAL AND
UNDESIRABLE."  342 U.S., AT 284.  THE COURT ALSO TOOK COGNIZANCE OF THE
APPARENT TRADE-OFF IN THE ACT BETWEEN THE EMPLOYER'S LIMITATION OF
LIABILITY AND THE ABROGATION, IN FAVOR OF THE EMPLOYEE, OF COMMON-LAW
DOCTRINES OF CONTRIBUTORY NEGLEGENCE AND ASSUMPTION OF RISK.  ID., AT
285 - 286.  CONFRONTED WITH THE POSSIBILITY THAN ANY WORKABLE RULE OF
CONTRIBUTION MIGHT BE INCONSISTENT WITH THE BALANCE STRUCK BY CONGRESS
IN THE HARBOR WORKERS' ACT BETWEEN THE INTERESTS OF CARRIERS,
EMPLOYERS, EMPLOYEES, AND THEIR RESPECTIVE INSURERS, WE REFRAINED FROM
ALLOWING CONTRIBUTION IN THE CIRCUMSTANCES OF THAT CASE. 

THESE FACTORS UNDERLYING OUR DECISION IN HALCYON STILL HAVE MUCH
FORCE.  INDEED, THE 1972 AMENDMENTS TO THE HARBOR WORKERS' ACT RE
EMPHASIZE CONGRESS' DETERMINATION THAT AS BETWEEN AN EMPLOYER AND ITS
INJURED EMPLOYEE, THE RIGHT TO COMPENSATION UNDER THE ACT SHOULD BE THE
EMPLOYEE'S EXCLUSIVE REMEDY.  /6/  BUT WHATEVER WEIGHT THESE FACTORS
WERE PROPERLY ACCORDED IN THE FACTUAL CIRCUMSTANCES PRESENTED IN
HALCYON, THEY HAVE NO APPLICATION HERE.  UNLIKE THE INJURED WORKER IN
HALCYON, SESSIONS WAS NOT AN EMPLOYEE OF COOPER AND COULD HAVE
PROCEEDED AGAINST EITHER THE VESSEL OR COOPER OR BOTH OF THEM TO
RECOVER FULL DAMAGES FOR HIS INJURY.  HAD SESSIONS DONE SO, EITHER OR
BOTH OF THE DEFENDANTS COULD HAVE BEEN HELD RESPONSIBLE FOR ALL OR PART
OF THE DAMAGES.  SINCE SESSIONS COULD HAVE ELECTED TO MAKE COOPER BEAR
ITS SHARE OF THE DAMAGES CAUSED BY ITS NEGLIGENCE, WE SEE NO REASON WHY
THE VESSEL SHOULD NOT BE ACCORDED THE SAME RIGHT.  ON THE FACTS OF THIS
CASE, THEN, NO COUNTERVAILING CONSIDERATIONS DETRACT FROM THE WELL
ESTABLISHED MARITIME RULE ALLOWING CONTRIBUTION BETWEEN JOINT
TORTFEASORS. 

OUR BRIEF PER CURIAM OPINION IN ATLANTIC COAST LINE R. CO. V. ERIE
LACKAWANNA R. CO., 406 U.S. 340 (1972), IS FULLY CONSISTENT WITH THIS
VIEW.  IN THAT CASE A YARD BRAKEMAN, EMPLOYED BY ERIE, BROUGHT SUIT FOR
INJURIES SUSTAINED WHILE WORKING ON A BOXCAR OWNED BY ANOTHER RAILROAD,
ATLANTIC, WHILE THE BOXCAR WAS BEING TRANSPORTED ON A CARFLOAT BARGE
OWNED BY ERIE.  THE ACCIDENT WAS ALLEGEDLY DUE TO A DEFECTIVE FOOTBOARD
AND HANDBRAKE OF THE BOXCAR AND THE PLAINTIFF SUED ATLANTIC FOR ITS
NEGLIGENCE IN SUPPLYING DEFECTIVE EQUIPMENT.  ATLANTIC SOUGHT
CONTRIBUTION FROM ERIE ON THE GROUND THAT ITS NEGLIGENCE WAS ALSO A
FACTOR IN CAUSING THE INJURY.  THE DISTRICT COURT DENIED CONTRIBUTION,
RELYING ON HALCYON.  THE COURT OF APPEALS AFFIRMED AND WE GRANTED
CERTIORARI BECAUSE IT INITIALLY APPEARED THAT THE DECISION WAS
INCONSISTENT WITH THE COURT OF APPEALS' DECISIONS IN HORTON, WATZ, AND
SEABOARD, SUPRA, WHICH HAD ALLOWED CONTRIBUTION, NOTWITHSTANDING
HALCYON, IN SITUATIONS WHERE THE PARTY AGAINST WHOM CONTRIBUTION WAS
SOUGHT WAS NOT ENTITLED TO THE LIMITATION-OF-LIABILITY PROTECTIONS OF
THE HARBOR WORKERS'  ACT.  AFTER ORAL ARGUMENT, HOWEVER, IT APPEARED
THAT THE CASE WAS FACTUALLY INDISTINGUISHABLE FROM HALCYON.  ERIE,
AGAINST WHOM CONTRIBUTION WAS SOUGHT, WAS THE PLAINTIFF'S EMPLOYER, AND
IN PENNSYLVANIA R. CO. V. O'ROURKE, 344 U.S. 334 (1953), WE RECOGNIZED
THAT A RAILROAD EMPLOYEE INJURED WHILE WORKING ON A FREIGHT CAR
CITUATED ON A CARFLOAT IN NAVIGABLE WATERS WAS SUBJECT EXCLUSIVELY TO
THE HARBOR WORKERS' ACT.  ERIE WAS THEREFORE ENTITLED TO THE LIMITATION
OF-LIABILITY PROTECTIONS OF THE HARBOR WORKERS' ACT, JUST LIKE THE
EMPLOYER IN HALCYON. 

PETITIONER ARGUES, HOWEVER, THAT THIS PROTECTION WAS EPHEMERAL IN
ATLANTIC SINCE, UNDER JACKSON V. LYKES BROS. S. S. CO., 386 U.S. 731
(1967), THE INJURED EMPLOYEE IN ATLANTIC COULD HAVE SUED ERIE, THE
SHIPOWNER-EMPLOYER, FOR UNSEAWORTHINESS OF THE VESSEL.  SEE ALSO REED
V. THE YAKA, 373 U.S. 410 (1963).  BUT THE FACT THAT ERIE MAY HAVE BEEN
SUBJECT TO A SUIT BASED ON UNSEAWORTHINESS FOR DAMAGES CAUSED BY
DEFECTIVE BOXCAR APPLIANCES, COMPARE THE OSCEOLA, 189 U.S. 158, 175
(1903), WITH GUTIERREZ V. WATERMAN S. S. CORP., 373 U.S. 206, 213
(1963), DID NOT MAKE IT A JOINT TORTFEASOR SUBJECT TO A CONTRIBUTION
CLAIM.  CONTRIBUTION RESTS UPON A FINDING OF CONCURRENT FAULT.  ERIE'S
LIABILITY, IF ANY, FOR UNSEAWORTHINESS OF ITS VESSEL WOULD HAVE BEEN A
STRICT LIABILITY NOT BASED UPON FAULT.  IN OTHER WORDS, EVEN IF ERIE
WERE NEGLIGENT, ITS INJURED EMPLOYEE WAS ENTITLED TO CLAIM COMPENSATION
FROM IT UNDER THE HARBOR WORKERS' ACT, AND ERIE WAS ACCORDINGLY
ENTITLED TO THE PROTECTIVE MANTLE OF THE ACT'S LIMITATION-OF-LIABILITY
PROVISIONS.  AND TO THE EXTENT ERIE WAS NOT NEGLIGENT BUT NEVERTHELESS
SUBJECT TO A SUIT ON A SEAWORTHINESS THEORY, ERIE WAS NOT A JOINT
TORTFEASOR AGAINST WHOM CONTRIBUTION COULD BE SOUGHT.  SEE SIMPSON
TIMBER CO. V. PARKS, 390 F.2D 353 (CA9), CERT. DENIED, 393 U.S. 858
(1968). 

IN SUM, OUR OPINION IN ATLANTIC WAS NOT INTENDED TO ANSWER THE
QUESTION POSED BY THE PRESENT CASE, AS ITS FAILURE TO DISCUSS HORTON,
WATZ, AND SEABOARD INDICATES.  RATHER, ATLANTIC PROVES ONLY THAT OUR
DECISION IN HALCYON WAS, AND STILL IS, GOOD LAW ON ITS FACTS. 
    AFFIRMED. 

/1/  THIS SUIT WAS COMMENCED PRIOR TO THE ENACTMENT OF THE 1972
AMENDMENTS TO THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT,
33 U.S.C. 901 - 944 (1970 ED., SUPP. II), AND ALL PARTIES AGREE THAT
THE AMENDMENTS ARE THEREFORE NOT APPLICABLE.  ACCORDINGLY WE NEED NOT
DECIDE WHETHER SESSIONS'  SUIT AGAINST THE VESSEL OR THE VESSEL'S THIRD
PARTY COMPLAINTS AGAINST COOPER OR MID-GULF COULD BE BROUGHT UNDER THE
ACT, AS AMENDED.  SEE 905 (B). 

/2/  PETITIONER SUGGESTS THAT THE VESSEL CANNOT RECOVER CONTRIBUTION
BECAUSE IT HAS ALREADY BEEN FULLY INDEMNIFIED FOR THE JUDGMENT UNDER
ITS AGREEMENT WITH MID-GULF.  SEE W. PROSSER, LAW OF TORTS 48 - 49 (4TH
ED. 1971).  BUT THIS SUGGESTION RESTS ON A FAULTY CONSTRUCTION OF THE
AGREEMENT BETWEEN THE VESSEL AND MID-GULF.  THE LATTER AGREED TO
INDEMNIFY THE VESSEL ONLY TO THE EXTENT NECESSARY AFTER TRIAL OF THE
LAWSUIT, AND THE ASSUMPTION OF THE PARTIES WAS THAT MID-GULF WOULD STEP
INTO THE VESSEL'S SHOES BOTH TO DEFEND THE SUIT BROUGHT BY SESSIONS AND
TO PROSECUTE THE THIRD-PARTY COMPLAINT AGAINST COOPER. 

/3/  SINCE THE DISTRICT COURT CONCLUDED THAT THE ONLY APPORTIONMENT
OF FAULT IT COULD REACH ON THE EVIDENCE IN THIS CASE WAS AN EQUAL
DIVISION, WE HAVE NO OCCASION IN THIS CASE TO DETERMINE WHETHER
CONTRIBUTION IN CASES SUCH AS THIS SHOULD BE BASED ON AN EQUAL DIVISION
OF DAMAGES OR SHOULD BE RELATIVELY APPORTIONED IN ACCORDANCE WITH THE
DEGREE OF FAULT OF THE PARTIES.  CF. THE MAX MORRIS, 137 U.S. 1, 15
(1890).  SEE ALSO JACOB V. NEW YORK CITY, 315 U.S. 752 (1942); SOCONY
VACUUM OIL CO. V. SMITH, 305 U.S. 424 (1939); THE ARIZONA V. ANELICH,
298 U.S. 110 (1936).  SEE GENERALLY STARING, CONTRIBUTION AND DIVISION
OF DAMAGES IN ADMIRALTY AND MARITIME CASES, 45 CALIF. L. REV. 304, 340
344 (1957). 

/4/  THE VESSEL ALSO CROSS-APPEALED, CONTENDING THAT THE DISTRICT
COURT SHOULD HAVE ALLOWED IT FULL INDEMNITY FROM COOPER.  THE COURT OF
APPEALS REJECTED THIS ARGUMENT, RELYING ON THE DISTRICT COURT'S FINDING
THAT THE VESSEL'S "CONDUCT PRECLUDED ITS FULL RECOVERY ON THE INDEMNITY
CLAIM BECAUSE IT FAILED TO FULFILL ITS PRIMARY RESPONSIBILITY UNDER ITS
ARRANGEMENT WITH COOPER TO ASSURE THAT SOME TYPE OF DUNNAGE WAS PLACED
ON TOP OF THE CARGO."  479 F.2D 1041, 1042.  CF. WEYERHAEUSER S. S. CO.
V. NACIREMA OPERATING CO., 355 U.S. 563, 567 (1958).  THE VESSEL DID
NOT FILE A PETITION FOR A WRIT OF CERTIORARI TO SEEK REVIEW OF THIS
ASPECT OF THE COURT OF APPEALS'  JUDGMENT, AND WE THEREFORE LACK
JURISDICTION TO CONSIDER ITS CONTENTION THAT IT IS ENTITLED TO RECOVER
FULL INDEMNITY ON THE BASIS OF RYAN, STEVEDORING CO. V. FAN-ATLANTIC S.
S. CORP., 350 U.S. 124 (1956). 

/5/  THE LOWER COURTS HAVE GENERALLY NOT READ HALCYON AS PETITIONER
SUGGESTS, AND HAVE CONTINUED TO RECOGNIZE A RIGHT OF CONTRIBUTION IN
NONCOLLISION MARITIME CASES.  SEE, E.G., CRAIN BROS., INC. V. WIEMAN &
WARD CO., 223 F.2D 256 (CA3 1955); MORAN TOWING CORP. V. M. A. GAMMINO
CONSTR.  CO., 409 F.2D 917 (CA1 1969); COCA COLA CO., TENCO DIV. V. S.
S. NORHOLT, 333 F.SUPP.  946 (SDNY 1971); DOW CHEMICAL CO. V. TUG
THOMAS ALLEN, 349 F.SUPP.  1354 (ED LA. 1972); BILKAY HOLDING CORP. V.
CONSOLIDATED IRON & METAL CO., 330 F.SUPP.  1313 (SDNY 1971); AMERICAN
INDEPENDENT OIL CO. V. M. S. ALKAID, 289 F.SUPP.  329 (SDNY 1967);
CITIES SERVICE REFINING CORP. V. NATIONAL BULK CARRIERS, INC., 146
F.SUPP.  418 (SD TEX. 1956.) 

/6/  UNDER THE 1972 AMENDMENTS, AN EMPLOYEE INJURED ON A VESSEL CAN
BRING AN ACTION AGAINST THE VESSEL FOR NEGLIGENCE, BUT THE VESSEL'S
LIABILITY WILL NOT BE BASED UPON THE WARRANTY OF SEAWORTHINESS OR
BREACH THEREOF.  AND WHERE THE VESSEL HAS BEEN HELD LIABLE FOR
NEGLIGENCE "THE EMPLOYER SHALL NOT BE LIABLE TO THE VESSEL FOR SUCH
DAMAGES DIRECTLY OR INDIRECTLY AND ANY AGREEMENTS OR WARRANTIES TO THE
CONTRARY SHALL BE VOID."  33 U.S.C. 905(B) (1970 ED., SUPP. II).  THE
INTENT AND EFFECT OF THIS AMENDMENT WAS TO OVERRULE THIS COURT'S
DECISIONS IN SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85 (1946), AND
RYAN STEVEDORING CO. V. PAN-ATLANTIC S. S. CORP., 350 U.S. 124 (1956),
INSOFAR AS THEY MADE AN EMPLOYER CIRCUITOUSLY LIABLE FOR INJURIES TO
ITS EMPLOYEE, BY ALLOWING THE EMPLOYEE TO MAINTAIN AN ACTION FOR
UNSEAWORTHINESS AGAINST THE VESSEL AND ALLOWING THE VESSEL TO MAINTAIN
AN ACTION FOR INDEMNITY AGAINST THE EMPLOYER.  SEE H. R. REP. NO. 92 -
1441, PP. 4 - 8 (1972); S. REP. NO. 92 - 1125, PP. 8 - 12 (1972). 

MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THIS CASE. 

JOSEPH D. CHEAVENS ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

BRUCE DIXIE SMITH ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 
..END :












F. D. RICH CO. V. INDUSTRIAL LUMBER CO., 417 U.S. 116 


       F. D. RICH CO., INC., ET AL. V. UNITED STATES FOR THE USE OF

           INDUSTRIAL LUMBER CO., INC.

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 72 - 1382.  ARGUED JANUARY 9, 1974--DECIDED MAY 28,

           1974; 473 F.2D 720, AFFIRMED IN PART AND REVERSED IN

           PART. 


    PETITIONER F. D. RICH CO., THE PRIME CONTRACTOR ON A FEDERAL

  HOUSING PROJECT IN CALIFORNIA, HAD TWO SEPARATE CONTRACTS FOR THE

  PROJECT WITH CERPAC CO., ONE CONTRACT BEING FOR CERPAC TO SELECT,

  MODIFY, DETAIL, AND INSTALL ALL CUSTOM MILLWORK AND THE OTHER

  BEING FOR CERPAC TO SUPPLY ALL EXTERIOR PLYWOOD.  CERPAC IN TURN

  ORDERED THE LUMBER CALLED FOR UNDER THE PLYWOOD CONTRACT FROM

  RESPONDENT.  WHEN RICH NEEDED PLYWOOD FOR ANOTHER PROJECT IN

  SOUTH CAROLINA, ONE OF THE SHIPMENTS CALLED FOR BY RESPONDENT'S

  CONTRACT WITH CERPAC WAS DIVERTED TO SOUTH CAROLINA.  WHEN CERPAC

  DEFAULTED ON ITS PAYMENTS TO RESPONDENT FOR THE PLYWOOD,

  INCLUDING THE SOUTH CAROLINA SHIPMENT, RESPONDENT GAVE NOTICE TO

  RICH AND ITS SURETY OF A MILLER ACT CLAIM AND THEREAFTER BROUGHT

  SUIT IN THE FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF

  CALIFORNIA WHERE THE CALIFORNIA PROJECT WAS LOCATED.  FINDING

  THAT CERPAC WAS A "SUBCONTRACTOR" WITHIN THE MEANING OF THE

  MILLER ACT, RATHER THAN MERELY A MATERIALMAN, THAT HENCE

  RESPONDENT COULD ASSERT A MILLER ACT CLAIM AGAINST RICH, AND THAT

  VENUE FOR SUIT ON THE SOUTH CAROLINA AS WELL AS THE CALIFORNIA

  SHIPMENTS PROPERLY LAY, UNDER 40 U.S.C. 270B (B), IN THE EASTERN

  DISTRICT OF CALIFORNIA, THE DISTRICT COURT GRANTED JUDGMENT FOR

  RESPONDENT FOR THE AMOUNT DUE ON THE UNPAID INVOICES, BUT DENIED

  ITS CLAIM FOR ATTORNEYS' FEES.  THE COURT OF APPEALS AFFIRMED IN

  LARGE PART, BUT HELD THAT ATTORNEYS' FEES SHOULD BE AWARDED

  RESPONDENT.  HELD: 

     1.  BASED ON THE SUBSTANTIALITY AND IMPORTANCE OF ITS

  RELATIONSHIP WITH THE PRIME CONTRACTOR, MACEVOY CO. V. UNITED

  STATES EX REL. TOMKINS CO., 322 U.S. 102, CERPAC WAS CLEARLY A

  SUBCONTRACTOR FOR MILLER ACT PURPOSES, CONSIDERING NOT JUST ITS

  PLYWOOD CONTRACT BUT ALSO ITS CUSTOM MILLWORK CONTRACT ON THE

  CALIFORNIA PROJECT.  MOREOVER, CERPAC AND RICH HAD CLOSELY

  INTERRELATED MANAGEMENT AND FINANCIAL STRUCTURES, AND THEIR

  RELATIONSHIP ON THE CALIFORNIA PROJECT WAS THE SAME AS ON MANY

  OTHER SIMILAR PROJECTS; HENCE IT WOULD HAVE BEEN EASY FOR RICH TO

  SECURE ITSELF FROM LOSS AS A RESULT OF CERPAC'S DEFAULT.  PP. 121

  - 124. 

     2.  VENUE FOR SUIT ON THE SOUTH CAROLINA SHIPMENT PROPERLY LAY

  IN THE EASTERN DISTRICT OF CALIFORNIA, SINCE THERE WAS CLEARLY A

  SUFFICIENT NEXUS FOR SATISFACTION OF 270B (B)'S VENUE

  REQUIREMENTS.  THE CONTRACT BETWEEN CERPAC AND RESPONDENT WAS

  EXECUTED IN CALIFORNIA, ALL MATERIALS THEREUNDER TO BE DELIVERED

  TO THE CALIFORNIA WORKSITE.  CALIFORNIA REMAINED THE SITE FOR

  PERFORMANCE OF THE ORIGINAL CONTRACT DESPITE THE DIVERSION OF ONE

  SHIPMENT TO SOUTH CAROLINA.  THERE WAS NO SHOWING OF PREJUDICE

  RESULTING FROM THE CASE'S BEING HEARD IN CALIFORNIA AND

  CONSIDERATIONS OF JUDICIAL ECONOMY AND CONVENIENCE SUPPORTED

  VENUE IN THE COURT WHERE ALL OF RESPONDENT'S CALIMS COULD BE

  ADJUDICATED IN A SINGLE PROCEEDING.  PP. 124 - 126. 

     3.  ATTORNEYS' FEES WERE IMPROPERLY AWARDED RESPONDENT.  PP.
126 - 131. 

     (A) THE COURT OF APPEALS ERRED IN CONSTRUING THE MILLER ACT TO

  REQUIRE AWARD BY REFERENCE TO THE "PUBLIC POLICY" OF THE STATE IN

  WHICH SUIT WAS BROUGHT, SINCE THE ACT PROVIDES A FEDERAL CAUSE OF

  ACTION AND THERE IS NO EVIDENCE OF ANY CONGRESSIONAL INTENT TO

  INCORPORATE STATE LAW TO GOVERN SUCH AN IMPORTANT ELEMENT OF

  MILLER ACT LITIGATION AS LIABILITY FOR ATTORNEYS' FEES.  PP. 127

  - 128. 

     (B) THE PROVISION OF THE MILLER ACT IN 40 U.S.C. 270BA) THAT

  CLAIMANTS SHOULD RECOVER THE "SUMS JUSTLY DUE," DOES NOT REQUIRE

  THE AWARD OF ATTORNEYS' FEES ON THE ASSERTED GROUND THAT WITHOUT

  SUCH FEE SHIFTING, CLAIMANTS WOULD NOT BE FULLY COMPENSATED.  TO

  HOLD OTHERWISE WOULD AMOUNT TO JUDICIAL OBVIATION OF THE

  "AMERICAN RULE" THAT ATTORNEYS' FEES ARE NOT ORDINARILY

  RECOVERABLE IN FEDERAL LITIGATION IN THE ABSENCE OF A STATUTE OR

  CONTRACT PROVIDING THEREFOR, IN THE CONTEXT OF EVERYDAY

  COMMERCIAL LITIGATION, WHERE THE POLICIES WHICH UNDERLIE THE

  LIMITED JUDICIALLY CREATED DEPARTURES FROM THE RULE ARE

  INAPPLICABLE.  PP. 128 - 131. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED AN OPINION DISSENTING

  IN PART, POST, P. 131. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE MILLER ACT, 49 STAT. 793, AS AMENDED, 80 STAT. 1139, 40 U.S.C.
270A ET SEQ., REQUIRES A GOVERNMENT CONTRACTOR /1/  TO POST A SURETY
BOND "FOR THE PROTECTION OF ALL PERSONS SUPPLYING LABOR AND MATERIAL IN
THE PROSECUTION OF THE WORK PROVIDED FOR" IN THE CONTRACT.  THE ACT
FURTHER PROVIDES THAT ANY PERSON WHO HAS SO FURNISHED LABOR OR MATERIAL
AND WHO HAS NOT BEEN PAID IN FULL WITHIN 90 DAYS AFTER THE LAST LABOR
WAS PERFORMED OR MATERIAL SUPPLIED MAY BRING SUIT ON THE PAYMENT BOND
FOR THE UNPAID BALANCE.  40 U.S.C. 270B (A).  THIS CASE PRESENTS
SEVERAL UNRESOLVED ISSUES OF IMPORTANCE IN THE ADMINISTRATION OF THE
ACT. 

        I 

BETWEEN 1961 AND 1968, PETITIONER F. D. RICH CO. WAS THE PRIME
CONTRACTOR ON NUMEROUS FEDERAL HOUSING PROJECTS.  DURING THE YEARS 1963
- 1966, MUCH IF NOT ALL OF THE PLYWOOD AND MILLWORK FOR THESE PROJECTS
WAS SUPPLIED BY CERPAC CO. THE CERPAC ORGANIZATION WAS CLOSELY
INTERTWINED WITH RICH.  THE PRINCIPALS OF RICH HELD A SUBSTANTIAL
VOTING INTEREST IN CERPAC STOCK, SUPPLIED A MAJOR SHARE OF ITS WORKING
CAPITAL, AND WERE THOROUGHLY FAMILIAR WITH ITS OPERATIONS AND FINANCIAL
CONDITION. 

ON OCTOBER 18, 1965, RICH CONTRACTED WITH THE UNITED STATES TO BUILD
337 FAMILY HOUSING UNITS AT BEALE AIR FORSE BASE, CALIFORNIA.  RICH'S
MILLER ACT SURETY, PETITIONER TRANSAMERICA INSURANCE CO., POSTED THE
PAYMENT BOND REQUIRED BY THE ACT.  RICH THEN AWARDED CERPAC TWO
CONTRACTS ON THE PROJECT, ONE TO SELECT, MODIFY, DETAIL, AND INSTALL
ALL CUSTOM MILLWORK, AND ONE MERELY TO SUPPLY ALL STANDARD EXTERIOR
PLYWOOD, EACH CONTRACT INCORPORATING BY REFERENCE TERMS OF THE PRIME
CONTRACT.  A SIMILAR ARRANGEMENT WAS EMPLOYED BY RICH AND CERPAC ON
OTHER PROJECTS DURING THIS PERIOD. 

ON FEBRUARY 22, 1966, CERPAC PLACED A SINGLE ORDER WITH RESPONDENT
INDUSTRIAL LUMBER CO. FOR ALL EXTERIOR PLYWOOD REQUIRED UNDER ITS
PLYWOOD CONTRACT FOR THE BEALE PROJECT.  INDUSTRIAL IS A BROKER,
PURCHASING WOOD PRODUCTS AND MATERIALS FOR RESALE.  IT ACKNOWLEDGED THE
COMPLETE CERPAC ORDER, PURCHASED THE PLYWOOD FROM ITS OWN SUPPLIERS AND
ARRANGED FOR DELIVERIES AT THE BEALE SITE TO BEGIN ON MARCH 10, 1966. 
EACH SHIPMENT WAS RECEIPTED AS IT ARRIVED ON THE SITE BY A RICH
REPRESENTATIVE.  SHORTLY AFTER INDUSTRIAL'S SHIPMENTS BEGAN, RICH
INFORMED CERPAC THAT MORE PLYWOOD WAS NEEDED FOR ANOTHER GOVERNMENT
PROJECT BEING CONSTRUCTED IN CHARLESTON, SOUTH CAROLINA, FOR WHICH
CERPAC HAD ALSO CONTRACTED TO SUPPLY RICH WITH ALL EXTERIOR PLYWOOD. 
RICH AND CERPAC DECIDED TO DIVERT SOME OF THE BEALE LUMBER TO
CHARLESTON.  ACCORDINGLY, INDUSTRIAL WAS ADVISED TO SUPPLY A SHIPMENT
OF THE PLYWOOD CALLED FOR UNDER ITS BEALE CONTRACT WITH CERPAC TO THE
SOUTH CAROLINA SITE.  INDUSTRIAL ARRANGED FOR THE WOOD TO BE SHIPPED BY
ONE OF ITS SUPPLIERS TO A RAILHEAD NEAR CHARLESTON.  THE SHIPMENT
DIVERTED TO SOUTH CAROLINA WAS ONE OF 22 CALLED FOR BY INDUSTRIAL'S
BEALE CONTRACT.  /2/  THERE WERE SEVERAL SUBSEQUENT SHIPMENTS TO THE
CALIFORNIA SITE UNDER THAT CONTRACT. 

DURING APRIL AND MAY, 1966, CERPAC FELL BEHIND IN ITS PAYMENTS TO
INDUSTRIAL, AND ON JULY 13, 1966, HAVING NOT RECEIVED PAYMENT ON
INVOICES FOR NINE SEPARATE SHIPMENTS, INDUSTRIAL GAVE NOTICE TO RICH
AND ITS SURETY OF A MILLER ACT CLAIM AND THEREAFTER BROUGHT THE INSTANT
ACTION IN THE FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF
CALIFORNIA.  /3/  THE DISTRICT COURT RECOGNIZED THAT UNDER OUR DECISION
IN MACEVOY CO. V. UNITED STATES EX REL. TOMKINS CO., 322 U.S. 102
(1944), RICH'S LIABILITY TURNED ON WHETHER CERPAC WAS A "SUBCONTRACTOR"
WITHIN THE MEANING OF THE ACT OR MERELY A MATERIALMAN.  THE DISTRICT
COURT FOUND THAT CERPAC WAS A SUBCONTRACTOR; HENCE INDUSTRIAL, AS ITS
SUPPLIER, COULD ASSERT A MILLER ACT CLAIM AGAINST RICH, THE PRIME
CONTRACTOR ON THE PROJECT.  THE DISTRICT COURT ALSO REJECTED RICH'S
CLAIM THAT VENUE FOR SUIT ON THE SOUTH CAROLINA SHIPMENT WAS IMPROPER
IN THE EASTERN DISTRICT OF CALIFORNIA.  ACCORDINGLY, THE DISTRICT COURT
GRANTED JUDGMENT FOR INDUSTRIAL, HOLDING CERPAC /4/  AND RICH AS
PRIMARY OBLIGEES AND TRANSAMERICA ON ITS BOND, JOINTLY AND SEVERALLY
LIABLE FOR THE AMOUNT OF ALL NINE UNPAID INVOICES, $31,402.97,
INCLUDING THE AMOUNT DUE ON THE SHIPMENT DIVERTED TO SOUTH CAROLINA. 
THE DISTRICT COURT, HOWEVER, DENIED INDUSTRIAL'S CLAIM FOR ATTORNEYS'
FEES. 

BOTH RICH AND INDUSTRIAL APPEALED.  THE COURT OF APPEALS AFFIRMED
THE JUDGMENT AGAINST RICH IN LARGE PART.  /5/  ON INDUSTRIAL'S CROSS
APPEAL, THE COURT REVERSED, HOLDING THAT ATTORNEYS' FEES SHOULD HAVE
BEEN AWARDED TO INDUSTRIAL AS A SUCCESSFUL PLAINTIFF UNDER THE MILLER
ACT, AND REMANDED TO THE DISTRICT COURT FOR CONSIDERATION OF THE AMOUNT
OF ATTORNEYS' FEES TO BE AWARDED.  473 F.2D 720 (CA9 1973).  WE GRANTED
CERTIORARI.  /6/  414 U.S. 816 (1973).  WE AFFIRM THE JUDGMENT BELOW TO
THE EXTENT IT HOLDS THAT CERPAC WAS A "SUBCONTRACTOR" FOR MILLER ACT
PURPOSES AND THAT THERE WAS PROPER VENUE, BUT REVERSE AS TO THE
PROPRIETY OF AN AWARD OF ATTORNEYS' FEES. 

       II 

REQUIREMENT OF A PAYMENT BOND TO PROTECT THOSE WHO SUPPLY LABOR OR
MATERIALS TO A CONTRACTOR ON A FEDERAL PROJECT.  ORDINARILY, A SUPPLIER
OF LABOR OR MATERIALS ON A PRIVATE CONSTRUCTION PROJECT CAN SECURE A
MECHANIC'S LIEN AGAINST THE IMPROVED PROPERTY UNDER STATE LAW.  BUT A
LIEN CANNOT ATTACH TO GOVERNMENT PROPERTY, SEE ILLINOIS SURETY CO. V.
JOHN DAVIS CO., 244 U.S. 376, 380 (1917), SO SUPPLIERS ON GOVERNMENT
PROJECTS ARE DEPRIVED OF THEIR USUAL SECURITY INTEREST.  THE MILLER ACT
WAS INTENDED TO PROVIDE AN ALTERNATIVE REMEDY TO PROTECT THE RIGHTS OF
THESE SUPPLIERS. 

THE RIGHTS AFFORDED BY THE ACT ARE LIMITED, HOWEVER, BY THE PROVISO
OF 270B (A).  IN MACEVOY CO. V. UNITED STATES EX REL. TOMKINS CO., 322
U.S. 102 (1944), THIS COURT CONSTRUED 270B (A) TO LIMIT THE PROTECTION
OF A MILLER ACT BOND TO THOSE WHO HAD A CONTRACTUAL AGREEMENT WITH THE
PRIME CONTRACTOR OR WITH A "SUBCONTRACTOR."  THOSE IN MORE REMOTE
RELATIONSHIPS, INCLUDING PERSONS SUPPLYING LABOR OR MATERIAL TO A MERE
MATERIALMAN, WERE FOUND NOT TO BE PROTECTED.  ID., AT 109 - 111. 
INDUSTRIAL WAS A SUPPLIER OF MATERIALS TO CERPAC.  THUS, IF CERPAC WERE
A SUBCONTRACTOR FOR PURPOSES OF THE ACT, INDUSTRIAL, HAVING GIVEN THE
REQUIRED STATUTORY NOTICE, COULD ASSERT A MILLER ACT CLAIM AGAINST
RICH, THE PRIME CONTRACTOR.  BUT, IF CERPAC WERE MERELY A MATERIALMAN,
INDUSTRIAL COULD NOT ASSERT ITS MILLER ACT CLAIM SINCE IT WOULD BE
MERELY A SUPPLIER OF MATERIALS TO A MATERIALMAN, A RELATIONSHIP FOUND
TOO REMOTE IN MACEVOY TO ENJOY THE PROTECTIONS OF THE ACT. 

PETITIONERS ASSERT THAT THE COURTS BELOW ERRED IN FINDING CERPAC A
SUBCONTRACTOR.  CERPAC'S ROLE UNDER THE PLYWOOD CONTRACT ALONE WAS THAT
OF A BROKER RECEIVING STANDARD LUMBER SUPPLIED BY INDUSTRIAL AND, IN
TURN, SUPPLYING IT WITHOUT MODIFICATION TO RICH.  PETITIONERS ARGUE
THAT THE COURT SHOULD NOT HAVE LOOKED BEYOND THE PLYWOOD CONTRACT TO
DETERMINE CERPAC'S STATUS UNDER THE ACT. 

IN MACEVOY, SUPRA, THE COURT ADOPTED A FUNCTIONAL RATHER THAN A
TECHNICAL DEFINITION FOR THE TERM SUBCONTRACTOR, AS USED IN THE
PROVISO.  THE COURT NOTED THAT A SUBCONTRACTOR IS "ONE WHO PERFORMS FOR
AND TAKES FROM THE PRIME CONTRACTOR A SPECIFIC PART OF THE LABOR OR
MATERIAL REQUIREMENTS OF THE ORIGINAL CONTRACT . . . ."  322 U.S., AT
109.  THE COURT WENT ON TO EXPLAIN THE REASON FOR THE EXCLUSION FROM
THE PROTECTIONS OF THE ACT OF SUPPLIERS OF MERE MATERIALMEN AS OPPOSED
TO THOSE WHO SUPPLY SUBCONTRACTORS: 

"THE RELATIVELY FEW SUBCONTRACTORS WHO PERFORM PART OF THE ORIGINAL
CONTRACT REPRESENT IN A SENSE THE PRIME CONTRACTOR AND ARE WELL KNOWN
TO HIM.  IT IS EASY FOR THE PRIME CONTRACTOR TO SECURE HIMSELF AGAINST
LOSS BY REQUIRING THE SUBCONTRACTORS TO GIVE SECURITY BY BOND, OR
OTHERWISE, FOR THE PAYMENT OF THOSE WHO CONTRACT DIRECTLY WITH THE
SUBCONTRACTORS.  . . . BUT THIS METHOD OF PROTECTION IS GENERALLY
INADEQUATE TO COPE WITH REMOTE AND UNDETERMINABLE LIABILITIES INCURRED
BY AN ORDINARY MATERIALMAN, WHO MAY BE A MANUFACTURER, A WHOLESALER OR
A RETAILER."  ID., AT 110. 

THE COURT OF APPEALS PROPERLY CONSTRUED OUR HOLDING IN MACEVOY TO
ESTABLISH AS A TEST FOR WHETHER ONE IS A SUBCONTRACTOR, THE
SUBSTANTIALITY AND IMPORTANCE OF HIS RELATIONSHIP WITH THE PRIME
CONTRACTOR.  /7/  IT IS THE SUBSTANTIALITY OF THE RELATIONSHIP WHICH
WILL USUALLY DETERMINE WHETHER THE PRIME CONTRACTOR CAN PROTECT
HIMSELF, SINCE HE CAN EASILY REQUIRE BOND SECURITY OR OTHER PROTECTION
FROM THOSE FEW "SUBCONTRACTORS" WITH WHOM HE HAS A SUBSTANTIAL
RELATIONSHIP IN THE PERFORMANCE OF THE CONTRACT. 

MEASURED AGAINST THAT TEST CERPAC WAS CLEARLY A SUBCONTRACTOR FOR
THE PURPOSE OF THE ACT.  THE MILLER ACT IS "HIGHLY REMEDIAL (AND)
ENTITLED TO A LIBERAL CONSTRUCTION AND APPLICATION IN ORDER PROPERLY TO
EFFECTUATE THE CONGRESSIONAL INTENT TO PROTECT THOSE WHOSE LABOR AND
MATERIALS GO INTO PUBLIC PROJECTS."  MACEVOY, SUPRA, AT 107.  IT IS
CONSISTENT WITH THAT INTENT TO LOOK AT THE TOTAL RELATIONSHIP BETWEEN
CERPAC AND RICH, NOT JUST THE CONTRACT TO SUPPLY EXTERIOR PLYWOOD, TO
DETERMINE WHETHER CERPAC WAS A SUBCONTRACTOR.  /8/  CERPAC HAD NOT ONLY
AGREED TO SUPPLY STANDARD PLYWOOD BUT ALSO HAD A SEPARATE CONTRACT TO
SELECT, MODIFY, DETAIL AND INSTALL ALL CUSTOM MILLWORK FOR THE BEALE
PROJECT.  CERPAC, IN EFFECT, TOOK OVER A SUBSTANTIAL PART OF THE PRIME
CONTRACT ITSELF.  MOREOVER, THE MANAGEMENT AND FINANCIAL STRUCTURES OF
THE TWO COMPANIES WERE CLOSELY INTERRELATED AND THEIR RELATIONSHIP ON
THE BEALE PROJECT WAS THE SAME AS ON MANY OTHER SIMILAR GOVERNMENT
PROJECTS DURING THE SAME PERIOD.  CERPAC WAS, AS THE COURT OF APPEALS
OBSERVED, "IN A SPECIAL, INTEGRAL, ALMOST SYMBIOTIC RELATIONSHIP (WITH)
RICH."  473 F.2D, AT 724.  IT WOULD HAVE BEEN EASY FOR RICH TO SECURE
ITSELF FROM LOSS AS A RESULT OF A DEFAULT BY CERPAC. 

        III 

WE ALSO AGREE WITH THE COURTS BELOW THAT VENUE UNDER THE MILLER ACT
FOR SUIT ON THE SHIPMENT DIVERTED TO SOUTH CAROLINA PROPERLY LAY IN THE
EASTERN DISTRICT OF CALIFORNIA.  THE ACT PROVIDES THAT: 

     "EVERY SUIT INSTITUTED UNDER THIS SECTION SHALL BE BROUGHT IN
.

. . THE UNITED STATES DISTRICT COURT FOR ANY DISTRICT IN WHICH

  THE CONTRACT WAS TO BE PERFORMED AND EXECUTED AND NOT ELSEWHERE .

  . . ."  40 U.S.C. 270B (B). 

PETITIONERS ARGUE THAT THIS PROVISION BARS A DISTRICT COURT IN
CALIFORNIA /9/  FROM ADJUDICATING RESPONDENT'S CLAIMS ARISING FROM THE
SHIPMENTS OF PLYWOOD DELIVERED IN SOUTH CAROLINA.  BUT 270B (B) IS
MERELY A VENUE REQUIREMENT /10/  AND THERE WAS CLEARLY A SUFFICIENT
NEXUS FOR ITS SATISFACTION.  THE "BEALE 647" CONTRACT BETWEEN CERPAC
AND INDUSTRIAL WAS EXECUTED IN CALIFORNIA, ALL OF THE MATERIALS
DESCRIBED THEREIN TO BE DELIVERED TO A WORKSITE IN THAT STATE. 
ALTHOUGH ONE OF THE 22 SHIPMENTS MADE PURSUANT TO THE CONTRACT WAS
LATER DIVERTED TO SOUTH CAROLINA FOR PETITIONER RICH'S CONVENIENCE, THE
SITE FOR PERFORMANCE OF THE ORIGINAL CONTRACT REMAINED THE SAME FOR
MILLER ACT PURPOSES.  /11/  SEVERAL SHIPMENTS TO THE BEALE SITE WERE
MADE AFTER THE SOUTH CAROLINA SHIPMENT.  MOREOVER, PETITIONERS HAVE
POINTED TO NO PREJUDICE RESULTING FROM THE CASE'S BEING HEARD IN THE
CALIFORNIA COURT AND CONSIDERATIONS OF JUDICIAL ECONOMY AND CONVENIENCE
CLEARLY SUPPORT VENUE IN THE DISTRICT COURT WHERE ALL OF RESPONDENT'S
CLAIMS ARISING FROM THE "BEALE 647" CONTRACT COULD BE ADJUDICATED IN A
SINGLE PROCEEDING. 

        IV 

WE TURN NOW TO THE QUESTION OF WHETHER ATTORNEYS' FEES WERE PROPERLY
AWARDED RESPONDENT AS A SUCCESSFUL MILLER ACT PLAINTIFF.  THE SO-CALLED
"AMERICAN RULE"  GOVERNING THE AWARD OF ATTORNEYS' FEES IN LITIGATION
IN THE FEDERAL COURTS IS THAT ATTORNEYS' FEES "ARE NOT ORDINARILY
RECOVERABLE IN THE ABSENCE OF A STATUTE OR ENFORCEABLE CONTRACT
PROVIDING THEREFOR."  FLEISCHMANN DISTILLING CORP. V. MAIER BREWING
CO., 386 U.S. 714, 717 (1967).  THERE WAS NO CONTRACTUAL PROVISION
CONCERNING ATTORNEYS' FEES IN THIS CASE.  NOR DOES THE MILLER ACT
EXPLICITLY PROVIDE FOR AN AWARD OF ATTORNEYS' FEES TO BE A SUCCESSFUL
PLAINTIFF.  BUT THE COURT OF APPEALS CONSTRUED THE ACT TO REQUIRE AN
AWARD OF ATTORNEYS' FEES WHERE THE "PUBLIC POLICY" OF THE STATE IN
WHICH SUIT WAS BROUGHT ALLOWS FOR THE AWARD OF FEES IN SIMILAR
CONTEXTS.  THE COURT REASONED THAT THE ACT PROVIDES REMEDIES "IN LIEU
OF THE LIEN UPON LAND AND BUILDINGS CUSTOMARY WHERE PROPERTY IS OWNED
BY PRIVATE PERSONS'  . . . . THE FEDERAL REMEDY WAS INTENDED TO
SUBSTITUTE FOR THE UNAVAILABLE STATE REMEDY OF THE LIEN.  THEREFORE, IF
STATE (LAW) ALLOWS A SUPPLIER ON PRIVATE PROJECTS TO RECOVER SUCH FEES,
THERE IS NO REASON FOR A DIFFERENT RULE TO APPLY TO FEDERAL PROJECTS .
. . ."  /12/  LOOKING TO CALIFORNIA LAW, THE COURT OF APPEALS FOUND AN
AWARD OF ATTORNEYS' FEES PROPER BECAUSE CALIF. GOVT. CODE 4207 (1966)
ALLOWED FOR THE RECOVERY OF ATTORNEYS' FEES IN STATE ACTIONS ON THE
BONDS OF CONTRACTORS FOR STATE AND MUNICIPAL PUBLIC WORKS PROJECTS. 
/13/ 

WE THINK THE COURT OF APPEALS ERRED IN ITS CONSTRUCTION OF THE
STATUTE. THE MILLER ACT PROVIDES A FEDERAL CAUSE OF ACTION, AND THE
SCOPE OF THE REMEDY AS WELL AS THE SUBSTANCE OF THE RIGHTS CREATED
THEREBY ARE MATTERS OF FEDERAL NOT STATE LAW.  NEITHER RESPONDENT NOR
THE COURT BELOW OFFERS ANY EVIDENCE OF CONGRESSIONAL INTENT TO
INCORPORATE STATE LAW TO GOVERN SUCH AN IMPORTANT ELEMENT OF MILLER ACT
LITIGATION AS LIABILITY FOR ATTORNEYS' FEES.  MANY FEDERAL CONTRACTS
INVOLVE CONSTRUCTION IN MORE THAN ONE STATE, AND OFTEN, AS HERE, THE
PARTIES TO MILLER ACT LITIGATION HAVE LITTLE OR NO CONTACT, OTHER THAN
THE CONTRACT ITSELF, WITH THE STATE IN WHICH THE FEDERAL PROJECT IS
LOCATED.  THE REASONABLE EXPECTATIONS OF SUCH POTENTIAL LITIGANTS ARE
BETTER SERVED BY A RULE OF UNIFORM NATIONAL APPLICATION.     A UNIFORM
RULE ALSO AVOIDS MANY OF THE PITFALLS WHICH HAVE ALREADY MANIFESTED
THEMSELVES IN USING STATE LAW REFERENTS.  FOR EXAMPLE, CALIFORNIA LAW
DOES NOT PROVIDE FOR AWARDS OF ATTORNEYS' FEES IN SUITS ARISING FROM
PRIVATE CONSTRUCTION PROJECTS.  AND, A CALIFORNIA COURT HAD HELD THAT
THE STATE STATUTE PROVIDING FOR AWARDS OF ATTORNEYS' FEES IN SUITS ON
THE BONDS OF STATE AND MUNICIPAL PUBLIC WORKS CONTRACTORS IS
INAPPLICABLE TO CONSTRUCTION PROJECTS OF THE UNITED STATES.  /14/  THE
COURT OF APPEALS NONETHELESS HELD THAT SINCE FEDERAL LAW CONTROLS
MILLER ACT RECOVERIES, IT WAS FREE TO LOOK TO "STATE POLICY" RATHER
THAN STATE LAW AND PROCEEDED TO FIND AN AWARD OF ATTORNEYS' FEES
APPROPRIATE.  ALTHOUGH THE COURT BELOW PREMISED ITS DECISION ON THE
THEORY THAT A MILLER ACT REMEDY IS AFFORDED "'IN LIEU OF THE LIEN UPON
LAND AND BUILDINGS CUSTOMARY WHERE PROPERTY IS OWNED BY PRIVATE
PERSONS,'" IT GAVE RESPONDENT MORE PROTECTION THAN CALIFORNIA LAW
AFFORDS LITIGANTS INVOLVED IN DISPUTES ARISING FROM PRIVATE
CONSTRUCTION PROJECTS WHO ARE NOT ENTITLED TO AN AWARD OF ATTORNEYS'
FEES.  WE THINK IT BETTER TO EXTRICATE THE FEDERAL COURTS FROM THE
MORASS OF TRYING TO DIVINE A "STATE POLICY" AS TO THE AWARD OF
ATTORNEYS' FEES IN SUITS ON CONSTRUCTION BONDS. 

FINALLY, THE COURT OF APPEALS INTIMATES THAT IN PROVIDING THAT
MILLER ACT CLAIMANTS SHOULD RECOVER THE "SUMS JUSTLY DUE," 40 U.S.C.
270B (A), CONGRESS MUST HAVE INTENDED TO PROVIDE FOR THE AWARD OF
ATTORNEYS' FEES BECAUSE WITHOUT SUCH FEE SHIFTING, MILLER ACT CLAIMANTS
WOULD NOT BE FULLY COMPENSATED--THE CLAIMANT'S RECOVERY WOULD ALWAYS BE
DIMINISHED BY THE COST OF HIS LEGAL REPRESENTATION.  THIS ARGUMENT
MERELY RESTATES ONE OF THE OFT-REPEATED CRITICISMS OF THE AMERICAN
RULE.  /15/  ALMOST A HALF CENTURY AGO, THE MASSACHUSETTS JUDICIAL
COUNCIL PLEADED FOR REFORM, ASKING "ON WHAT PRINCIPLE OF JUSTICE CAN A
PLAINTIFF WRONGFULLY RUN DOWN ON A PUBLIC HIGHWAY RECOVER HIS DOCTOR'S
BILL BUT NOT HIS LAWYER'S BILL?"  /16/  WE RECOGNIZE THAT THERE IS SOME
FORCE TO THE ARGUMENT THAT A PARTY WHO MUST BEAR THE COSTS OF HIS
ATTORNEYS' FEES OUT OF HIS RECOVERY IS NOT MADE WHOLE.  BUT THERE ARE
COUNTERVAILING CONSIDERATIONS AS WELL.  WE HAVE OBSERVED THAT "ONE
SHOULD NOT BE PENALIZED FOR MERELY DEFENDING OR PROSECUTING A LAWSUIT,
AND THAT THE POOR MIGHT BE UNJUSTLY DISCOURAGED FROM INSTITUTING
ACTIONS TO VINDICATE THEIR RIGHTS IF THE PENALTY FOR LOSING INCLUDED
THE FEES OF THEIR OPPONENTS' COUNSEL."  FLEISCHMANN DISTILLING CORP. V.
MAIER BREWING CO., 386 U.S. 714, 718 (1967).  MOREOVER, "THE TIME,
EXPENSE, AND DIFFICULTIES OF PROOF INHERENT IN LITIGATING THE QUESTION
OF WHAT CONSTITUTES REASONABLE ATTORNEY'S FEES," IBID., HAS GIVEN US
PAUSE, EVEN THOUGH COURTS HAVE REGULARLY ENGAGED IN THAT ENDEAVOR IN
THE MANY CONTEXTS WHERE FEE SHIFTING IS MANDATED BY STATUTE, POLICY, OR
CONTRACT.  FINALLY, THERE IS THE POSSIBILITY OF A THREAT BEING POSED TO
THE PRINCIPLE OF INDEPENDENT ADVOCACY BY HAVING THE EARNINGS OF THE
ATTORNEY FLOW FROM THE PEN OF THE JUDGE BEFORE WHOM HE ARGUES. 

THE AMERICAN RULE HAS NOT SERVED, HOWEVER, AS AN ABSOLUTE BAR TO THE
SHIFTING OF ATTORNEYS' FEES EVEN IN THE ABSENCE OF STATUTE OR
CONTRACT.  THE FEDERAL JUDICIARY HAS RECOGNIZED SEVERAL EXCEPTIONS TO
THE GENERAL PRINCIPLE THAT EACH PARTY SHOULD BEAR THE COSTS OF ITS OWN
LEGAL REPRESENTATION.  WE HAVE LONG RECOGNIZED THAT ATTORNEYS' FEES MAY
BE AWARDED TO A SUCCESSFUL PARTY WHEN HIS OPPONENT HAS ACTED IN BAD
FAITH, VEXATIOUSLY, WANTONLY, OR FOR OPPRESSIVE REASONS, /17/  OR WHERE
A SUCCESSFUL LITIGANT HAS CONFERRED A SUBSTANTIAL BENEFIT ON A CLASS OF
PERSONS AND THE COURT'S SHIFTING OF FEES OPERATES TO SPREAD THE COST
PROPORTIONATELY AMONG THE MEMBERS OF THE BENEFITLD CLASS.  /18/  THE
LOWER COURTS HAVE ALSO APPLIED A RATIONALE FOR FEE SHIFTING BASED ON
THE PREMISE THAT THE EXPENSE OF LITIGATION MAY OFTEN BE A FORMIDABLE IF
NOT INSURMOUNTABLE OBSTACLE TO THE PRIVATE LITIGATION NECESSARY TO
ENFORCE IMPORTANT PUBLIC POLICIES.  /19/  THIS "PRIVATE ATTORNEY
GENERAL"  RATIONALE HAS NOT BEEN SQUARELY BEFORE THIS COURT AND IT IS
NOT SO NOW; NOR DO WE INTEND TO IMPLY ANY VIEW EITHER ON THE VALIDITY
OR SCOPE OF THAT DOCTRINE.  IT IS SUFFICIENT FOR OUR PURPOSES HERE TO
OBSERVE THAT THIS CASE CLEARLY DOES NOT FALL WITHIN ANY OF THESE
EXCEPTIONS. 

MILLER ACT SUITS ARE PLAIN AND SIMPLE COMMERCIAL LITIGATION.  IN
EFFECT THEN, WE ARE BEING ASKED TO GO THE LAST MILE IN THIS CASE, TO
JUDICIALLY OBVIATE THE AMERICAN RULE IN THE CONTEXT OF EVERYDAY
COMMERICAL LITIGATION, WHERE THE POLICIES WHICH UNDERLIE THE LIMITED
JUDICIALLY CREATED DEPARTURES FROM THE RULE ARE INAPPLICABLE.  THIS WE
ARE UNPREPARED TO DO.  THE PERSPECTIVES OF THE PROFESSION, THE
CONSUMERS OF LEGAL SERVICES, AND OTHER INTERESTED GROUPS SHOULD BE
WEIGHED IN ANY DECISION TO SUBSTANTIALLY UNDERCUT THE APPLICATION OF
THE AMERICAN RULE IN SUCH LITIGATION.  CONGRESS IS AWARE OF THE ISSUE. 
/20/  THUS WHATEVER THE MERIT OF ARGUMENTS FOR A FURTHER DEPARTURE FROM
THE AMERICAN RULE IN MILLER ACT COMMERCIAL LITIGATION, THOSE ARGUMENTS
ARE PROPERLY ADDRESSED TO CONGRESS. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED INSOFAR AS IT HOLDS
THAT CERPAC IS A SUBCONTRACTOR FOR MILLER ACT PURPOSES AND THAT THERE
WAS PROPER VENUE FOR SUIT ON THE SHIPMENT DIVERTED TO SOUTH CAROLINA,
BUT REVERSED INSOFAR AS IT HOLDS THAT AN AWARD OF ATTORNEYS' FEES TO
RESPONDENT INDUSTRIAL IS REQUIRED BY THE ACT. 

              IT IS SO ORDERED. 

/1/  GOVERNMENT CONTRACTS OF LESS THAN $2,000 IN VALUE ARE EXCEPTED
FROM THE STATUTE'S COVERAGE. 

/2/  SHIPMENTS UNDER THE CONTRACT WERE INVOICED BY THE TRUCKLOAD. 
THE SOUTH CAROLINA SHIPMENT INVOLVED TWO SUCH TRUCKLOADS, WHILE THE
OTHER 21 SHIPMENTS WERE EACH OF ONLY ONE TRUCKLOAD OF LUMBER. 

/3/  WHEN CERPAC FELL BEHIND IN ITS PAYMENTS, INDUSTRIAL INDICATED
IT WOULD NOT DELIVER THE FINAL TWO TRUCKLOADS OF WOOD TO THE BEALE
PROJECT UNTIL IT RECEIVED SATISFACTORY ASSURANCES OF PAYMENT.  RICH
AGREED TO PAY INDUSTRIAL DIRECTLY FOR THE LAST TWO SHIPMENTS, WITH
CERPAC TO RECEIVE ITS CUSTOMARY PROFIT AS A COMMISSION FROM
INDUSTRIAL.  THE LAST TWO SHIPMENTS WERE MADE ON MAY 18 AND JUNE 23,
1966, INVOICES BEING PAYABLE IN FULL 30 DAYS THEREAFTER.  THE SHIPMENTS
WERE INVOICED DIRECTLY TO RICH WITH COPIES TO CERPAC, THE INVOICES
SHOWING THE SHIPMENTS AS BEING UNDER THE ORIGINAL "BEALE 647" CONTRACT
BETWEEN INDUSTRIAL AND CERPAC.  RICH NONETHELESS REFUSED TO PAY THE
FULL INVOICE PRICE OF THE TWO FINAL SHIPMENTS.  RICH HAS SINCE CONCEDED
ITS OBLIGATION TO PAY INDUSTRIAL'S CLAIM FOR THESE TWO SHIPMENTS, SO
THERE IS NO LONGER ANY CONTROVERSY IN REGARD TO THE AMOUNTS DUE ON
THOSE INVOICES. 

/4/  CERPAC SUBSEQUENTLY FILED FOR DISCHARGE IN BANKRUPTCY AND IS NO
LONGER A PARTY. 

/5/  ALL INVOICES UNDER THE BEALE CONTRACT BETWEEN INDUSTRIAL AND
CERPAC WERE PAYABLE WITHIN 30 DAYS WITH INTEREST AT AN ANNUAL RATE OF
EIGHT PERCENT AFTER THE DUE DATE.  THE DISTRICT COURT AWARDED
INDUSTRIAL SEVEN PERCENT INTEREST ON ALL "UNLIQUIDATED CLAIMS."  THE
COURT OF APPEALS, HOWEVER, RULED THAT THE AMOUNTS DUE UNDER THE TERMS
OF THE CONTRACT WERE LIQUIDATED DAMAGES AND SHOULD BEAR AN INTEREST
RATE OF EIGHT PERCENT. 

THE DISTRICT COURT HAD ALSO GIVEN JUDGMENT AGAINST TRANSAMERICA ON
ITS BOND FOR THE SHIPMENT WHICH WAS SENT TO THE SOUTH CAROLINA SITE. 
THE COURT OF APPEALS HELD THAT JUDGMENT SHOULD NOT HAVE BEEN RENDERED
AGAINST TRANSAMERICA FOR MATERIAL NOT DELIVERED TO THE PROJECT FOR
WHICH IT SERVED AS SURETY. 

/6/  PETITIONERS ALSO RAISE ISSUES IN THEIR BRIEF CONCERNING THE
TIMELINESS OF THE MILLER ACT NOTICE AND THE AMOUNT OF PREJUDGMENT
INTEREST AWARDED RESPONDENT.  THOSE ISSUES WERE NOT RAISED IN THE
PETITION FOR CERTIORARI, HENCE ARE NOT PROPERLY BEFORE THE COURT.  SEE,
E.G., NAMET V. UNITED STATES, 373 U.S. 179, 190 (1963); RULE 23.1 (C)
OF THE RULES OF THIS COURT. 

/7/  SEE, E.G., AETNA CASUALTY & SURETY CO. V. UNITED STATES EX REL.
GIBSON STEEL CO., 382 F.2D 615, 617 (CA5 1967); BASICH BROS.
CONSTRUCTION CO V. UNITED STATES EX REL. TURNER, 159 F.2D 182 (CA9
1946); CF. UNITED STATES EX REL. BRYANT V. LEMBKE CONSTRUCTION CO., 370
F.2D 293 (CA10 1966). 

/8/  TRAVELERS INDEMNITY CO. V. UNITED STATES EX REL. WESTERN STEEL
CO., 362 F.2D 896, 898 (CA9 1966); UNITED STATES EX REL. WELLMAN
ENGINEERING CO. V. MSI CORP., 350 F.2D 285, 286 (CA2 1965). 

/9/  BEALE AIR FORCE BASE IS LOCATED IN THE JURISDICTION OF THE
FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, HENCE
RESPONDENT BROUGHT SUIT ON THE BEALE CONTRACT IN THAT COURT. 

/10/  UNITED STATES EX REL. CAPOLINO SONS, INC. V. ELECTRONIC &
MISSILE FACILITIES, INC., 364 F.2D 705 (CA2 1966); SEE CASES COLLECTED,
ID., AT 707. 

/11/  THE COURT OF APPEALS REVERSED THE JUDGMENT AGAINST
TRANSAMERICA, ON ITS BOND, AS TO THE SHIPMENT OF WOOD DIVERTED TO SOUTH
CAROLINA, BECAUSE A MILLER ACT SURETY IS LIABLE ONLY FOR MATERIAL
SUPPLIED FOR USE ON THE BONDED PROJECT.  BUT, A DECISION ON THE
ULTIMATE QUESTION OF THE SURETY'S LIABILITY INVOLVES DIFFERENT
CONSIDERATIONS FROM THE QUESTIONS OF WHETHER VENUE FOR SUIT ON THE BOND
IS PROPER.  PETITIONER RICH'S LIABILITY FOR THE AMOUNT DUE ON THE SOUTH
CAROLINA SHIPMENT WAS BASED ON A PENDENT CLAIM, THE SUBSTANCE OF WHICH
WAS NOT CHALLENGED IN THIS COURT OR IN THE COURT OF APPEALS. 

/12/  473 F.2D 720, 727 (1973).  THE SAME ANALYSIS HAS BEEN ACCEPTED
IN SEVERAL CIRCUITS; SEE TRANSAMERICA INSURANCE CO. V. RED TOP METAL,
INC., 384 F.2D 752 (CA 5 1967); UNITED STATES EX REL. WHITE MASONRY,
INC. V. F. D. RICH CO., 434 F.2D 855, 859 (CA9 1970); ARNOLD V. UNITED

  EX REL. STATES BOWMAN MECHANICAL CONTRACTORS, INC., 470 F.2D 243,
245 (CA10 1972). 

/13/  AFTER THE DECISION IN THE DISTRICT COURT, BUT PRIOR TO THE
COURT OF APPEALS' OPINION, CALIF. GOVT. CODE 4207 (1966) WAS REPLACED,
AND THE EFFECTIVE PROVISIONS TRANSFERRED TO CALIF. CIV. CODE 3250
(SUPP. 1974), BY AN ACT OF THE CALIFORNIA LEGISLATURE, DATED AUGUST 31,
1969, THAT TOOK EFFECT ON JANUARY 1, 1971.  GIVEN OUR REASONING,
HOWEVER, THE REVISION IN LANGUAGE OF THE APPLICABLE CALIFORNIA LAW IS
OF NO RELEVANCE TO THE RESULT REACHED HEREIN. 

/14/  B. C. RICHTER CONTRACTING CO. V. CONTINENTAL CASUALTY CO., 230
CAL.APP.  2D 491, 41 CAL.RPTR.  98 (1964) (CONSTRUING THE FORMER LAW,
SEE N. 13, SUPRA). 

/15/  THE AMERICAN RULE HAS COME UNDER REPEATED CRITICISM OVER THE
YEARS.  SEE GENERALLY EHRENZWEIG, REIMBURSEMENT OF COUNSEL FEES AND THE
GREAT SOCIETY, 54 CAL.L.REV.792 (1966); KUENZEL, THE ATTORNEY'S FEE:
WHY NOT A COST OF LITIGATION?, 49 IOWA L.REV.  75 (1963); MCLAUGHLIN,
THE RECOVERY OF ATTORNEY'S FEES:  A NEW METHOD OF FINANCING LEGAL
SERVICES, 40 FORD.L.REV.  761 (1972); MCCORMICK, COUNSEL FEES AND OTHER
EXPENSES OF LITIGATION AS AN ELEMENT OF DAMAGES, 15 MINN.L.REV.  619
(1931); STOEBUCK, COUNSEL FEES INCLUDED IN COSTS:  A LOGICAL
DEVELOPMENT, 38 U.COLO.L.REV.  202 (1966); NOTE, ATTORNEY'S FEES:
WHERE SHALL THE ULTIMATE BURDEN LIE?, 20 VAND.L.REV.  1216 (1967). 

/16/  JUDICIAL COUNCIL OF MASSACHUSETTS, FIRST REPORT, 11 MASS.L.Q.
1, 64 (1925). 

/17/  SEE, E.G., VAUGHAN V. ATKINSON, 369 U.S. 527 (1962);
MCENTEGART V. CATALDO, 451 F.2D 1109 (CA1 1971); BELL V. SCHOOL BD. OF
POWHATAN COUNTY, 321 F.2D 494 (CA4 1963); ROLAX V. ATLANTIC COAST LINE
R. CO., 186 F.2D 473 (CA4 1951); 6 J. MOORE, FEDERAL PRACTICE PARA.
54.77 (2), P. 1709 (2D ED. 1974). 

/18/  SEE, E.G., HALL V. COLE, 412 U.S. 1 (1973); MILLS V. ELECTRIC
AUTO-LITE CO., 396 U.S. 375 (1970); NATURAL RESOURCES DEFENSE COUNCIL
V. EPA, 484 F.2D 1331 (CA1 1973); CALLAHAN V. WALLACE, 466 F.2D 59 (CA5
1972); BRIGHT V. PHILADELPHIA-BALTIMORE-WASHINGTON STOCK EXCHANGE, 327
F.SUPP.  495, 506 (ED PA. 1971); CF. NUSSBAUM, ATTORNEY'S FEES IN
PUBLIC INTEREST LITIGATION, 48 N.Y. U.L.REV.  301 (1973); COMMENT, THE
ALLOCATION OF ATTORNEY'S FEES AFTER MILLS V. ELECTRIC AUTO-LITE CO., 38
U.CHI.L.REV.  316 (1971). 

/19/  SEE, E.G., COOPER V. ALLEN, 467 F.2D 836 (CA5 1972); KNIGHT V.
AUCIELLO, 453 F.2D 852 (CA1 1972); LEE V. SOUTHERN HOME SITES CORP.,
444 F.2D 143 (CA5 1971); LA RAZA UNIDA V. VOLPE, 57 F.R.D. 94 (ND CAL.
1972); ROSS V. GOSHI, 351 F.SUPP.  949 (HAW.  1972); SIMS V. AMOS, 340
F.SUPP.  691 (MD LA.  AL1972); CF. BRADLEY V. SCHOOL BD. OF THE CITY OF
RICHMOND, 416 U.S. 696 (1974); NORTHCROSS V. MEMPHIS CITY BD. OF
EDUCATION, 397 U.S. 232 (1970); NEWMAN V. PIGGIE PARK ENTERPRISES,
INC., 390 U.S. 400 (1968); NUSSBAUM, N. 18, SUPRA; NOTE, AWARDING
ATTORNEYS' FEES TO THE "PRIVATE ATTORNEY GENERAL":  JUDICIAL GREEN
LIGHT TO PRIVATE LITIGATION IN THE PUBLIC INTEREST, 24 HASTINGS L. J.
733 (1973). 

/20/  A CONGRESSIONAL COMMITTEE CHARGED WITH MAKING A BROAD-BASED
INQUIRY ABOUT LEGAL SERVICES IS CURRENTLY STUDYING, INTER ALIA, THE
GENERAL ISSUE OF ATTORNEYS' FEES.  HEARINGS ON LEGAL FEES BEFORE THE
SUBCOMMITTEE ON REPRESENTATION OF CITIZEN INTERESTS OF THE SENATE
COMMITTEE ON THE JUDICIARY, 93D CONG., 1ST SESS. (1973); CF. S. REP.
NO. 93 - 146 (1973), ACCOMPANYING S. RES. 101. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART.     THE COURT, DEALING WITH
THE MILLER ACT'S PREDECESSOR, HELD IN ILLINOIS SURETY CO. V. JOHN DAVIS
CO., 244 U.S. 376, 380, THAT THE HEARD ACT "MUST BE CONSTRUED
LIBERALLY."  THAT SAME PRINCIPLE APPLIES TO THE MILLER ACT.  FLEISHER
CO. V. UNITED STATES EX REL. HALLENBECK, 311 U.S. 15, 17 - 18.  THE ACT
IS SILENT AS TO ATTORNEYS' FEES, SAYING ONLY THAT THE PAYMENT BOND
SHALL ALLOW THE SUPPLIER "TO PROSECUTE SAID ACTION TO FINAL EXECUTION
AND JUDGMENT FOR THE SUM OR SUMS JUSTLY DUE HIM."  40 U.S.C. 270B (A). 

THE MILLER ACT IS UNLIKE THE LANHAM ACT INVOLVED IN FLEISCHMANN
DISTILLING CORP. V. MAIER BREWING CO., 386 U.S. 714.  THAT ACT ITEMIZED
THE COMPONENTS OF THE REMEDY WHICH THE ACT AFFORDED:  INJUNCTIVE
RELIEF, TREBLE DAMAGES, AND "COSTS" (WHICH BY FEDERAL STATUTE DID NOT
INCLUDE ATTORNEYS' FEES).  ID., AT 719 - 720.  MOREOVER, ATTEMPTS TO
AMEND THE LANHAM ACT TO INCLUDE ATTORNEYS' FEES HAD NEVER SUCCEEDED,
ID., AT 271.  HERE THERE IS NO SUCH LEGISLATIVE HISTORY; NOR DOES THE
MILLER ACT ITEMIZE THE COMPONENTS OF THE "SUM OR SUMS JUSTLY DUE." 

THE COURT SAYS THAT DEPENDENCE ON STATE LAW IS INAPPROPRIATE, FOR WE
DEAL WITH A FEDERAL STANDARD THAT SHOULD BE UNIFORM.  THAT TAKES GREAT
LIBERTIES WITH THE MILLER ACT.  HERE THE CONTRACT AND LAW WERE MADE IN
CALIFORNIA AND WERE TO BE PERFORMED THERE.  IN ILLINOIS SURETY CO. V.
JOHN DAVIS CO., SUPRA, THE CONTRACT AND LAW WERE MADE IN ILLINOIS AND
WERE TO BE PERFORMED THERE.  "QUESTIONS OF LIABILITY FOR INTEREST MUST
THEREFORE BE DETERMINED BY THE LAW OF THAT STATE," SAID MR. JUSTICE
BRANDEIS SPEAKING FOR THE COURT, 244 U.S., AT 381.  IF STATE LAW WOULD
GIVE THE CLAIMANT INTEREST, IT SHOULD GIVE HIM ATTORNEYS' FEES BASED ON
THE PURPOSE OF THE MILLER ACT.  JUDGE CARTER WRITING FOR THE COURT OF
APPEALS POINTED OUT THAT THE MILLER ACT IS THE FEDERAL EQUIVALENT OF
STATE LEIN LAWS.  SEE 473 F.2D 720, 727.  THE REMEDY IN A FEDERAL SUIT
IS THEREFORE PROPERLY COMPOSED OF THE SAME ELEMENTS AS WOULD BE
AVAILABLE TO LEIN CLAIMANTS IN A STATE COURT COLLECTING FOR LABOR AND
MATERIALS FURNISHED ON NONFEDERAL PROJECTS.  ONE OF THE ELEMENTS OF
RECOVERY PERMITTED IN A CALIFORNIA COURT IS ATTORNEYS' FEES.  THE "SUM
OR SUMS JUSTLY DUE" SHOULD AS A MATTER OF FEDERAL LAW BE CONSTRUED TO
BE THE SAME AS THAT DUE A CLAIMANT WHOSE REMEDY IS BASED ON A STATE
STATUTE, WHEN THE FEDERAL REMEDY WAS INTENDED TO BE THE EQUIVALENT OF
THE STATE REMEDY. 

WHAT MR. JUSTICE BRANDEIS SAID OF INTEREST IS EQUALLY APPLICABLE TO
ATTORNEYS' FEES UNDER THE MILLER ACT.  /1/  UNDER THE CIRCUMSTANCES
PRESENT HERE IT WOULD SEEM QUITE UNJUST NOT TO INCLUDE IN THE SUM THAT
IS DUE THE COST OF COLLECTING THAT SUM. 

/1/  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AWARDED ATTORNEYS'
FEES UNDER A FLORIDA STATUTE WHERE SUIT WAS BROUGHT UNDER THE MILLER
ACT, UNITED STATES EX REL. WEYERHAEUSER CO. V. BUCON CONSTRUCTION CO.,
430 F.2D 420, 425.  AND SEE UNITED STATES EX REL. WHITE MASONRY, INC.
V. F. D. RICH CO., 434 F.2D 855, 859, WHERE THE COURT OF APPEALS FOR
THE NINTH CIRCUIT FOLLOWED ALASKA LAW. 

LAWRENCE GOCHBERG ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE OTTO ROHWER AND RONALD N. PAUL. 

DENNIS S. HARLOWE ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS E. M. MURRAY. 
..END :






COMMISSIONER V. NAT. ALFALFA DEHYDRATING, 417 U.S. 134 


       COMMISSIONER OF INTERNAL REVENUE V. NATIONAL ALFALFA

           DEHYDRATING & MILLING CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 TENTH CIRCUIT

        NO. 73 - 9.  ARGUED JANUARY 14, 1974--DECIDED MAY 28, 1974;

           472 F.2D 796, REVERSED. 


    RESPONDENT CORPORATE TAXPAYER, PURSUANT TO A RECAPITALIZATION

  PLAN, ISSUED $50 FACE VALUE 5% SINKING FUND DEBENTURES IN

  EXCHANGE FOR ITS OUTSTANDING UNLISTED $50 PAR 5% CUMULATIVE

  PREFERRED SHARES, WHICH AT THE TIME WERE QUOTED AT APPROXIMATELY

  $33 PER SHARE ON THE OVER-THE-COUNTER MARKET.  BASED ON THE

  EXCHANGE, RESPONDENT CLAIMED ON ITS INCOME TAX RETURNS FOR

  SEVERAL YEARS DEDUCTIONS FOR DEBT DISCOUNT UNDER 163 (A) OF THE

  INTERNAL REVENUE CODE OF 1954, WHICH ALLOWS DEDUCTIONS FOR

  INTEREST PAID ON INDEBTEDNESS.  RESPONDENT ASSERTED THAT THE DEBT

  DISCOUNT, MEASURED BY THE DIFFERENCE BETWEEN A CLAIMED $33 PER

SHARE VALUE FOR THE PREFERRED, AND THE FACE AMOUNT OF THE

 DEBENTURES, AMORTIZED OVER THE LIFE OF THE DEBENTURES,

CONSTITUTED DEDUCTIBLE INTEREST WITHIN THE PURVIEW OF THAT

  PROVISION.  THE COMMISSIONER DISALLOWED THE DEDUCTIONS, AND WAS

  UPHELD BY THE TAX COURT, BUT THE COURT OF APPEALS REVERSED. 

  HELD:  RESPONDENT DID NOT INCUR AMORTIZABLE DEBT DISCOUNT UPON

  THE ISSUANCE OF ITS DEBENTURES IN EXCHANGE FOR ITS OUTSTANDING

  PREFERRED STOCK.  PP. 142 - 155. 

     (A) IN DETERMINING WHETHER DEBT DISCOUNT ARISES IN THE

  SITUATION PRESENTED HERE, THE RELEVANT INQUIRY MUST BE WHETHER

  THE CORPORATE TAXPAYER HAS INCURRED, AS A RESULT OF THE

  TRANSACTION, SOME COST OR EXPENSE OF ACQUIRING THE USE OF

  CAPITAL.  P. 147. 

     (B) THE PROPRIETY OF A DEDUCTION DOES NOT TURN UPON GENERAL

  EQUITABLE CONSIDERATIONS, SUCH AS A DEMONSTRATION OF EFFECTIVE

  ECONOMIC AND PRACTICAL EQUIVALENCE TO WHAT ACTUALLY OCCURRED, BUT

  RATHER "DEPENDS UPON LEGISLATIVE GRACE; AND ONLY AS THERE IS

  CLEAR PROVISION THEREFOR CAN ANY PARTICULAR DEDUCTION BE

  ALLOWED."  PP. 147 - 149. 

     (C) THIS COURT WILL NOT SPECULATE AS TO WHAT THE MARKET PRICE

  AND THE INVESTOR REACTION TO ANY SALES OF THE DEBENTURES OR

  PURCHASES OF THE PREFERRED BY RESPONDENT IN THE OPEN MARKET WOULD

  HAVE BEEN, SINCE THERE IS NOTHING IN THE RECORD TO ESTABLISH THE

  CASH PRICE AT WHICH THE DEBENTURES COULD HAVE BEEN SOLD UPON THE

  MARKET OR TO INDICATE THAT RESPONDENT WOULD HAVE BEEN ABLE TO

  PURCHASE ALL ITS OUTSTANDING PREFERRED ON THE OPEN MARKET, OR AT

  WHAT PRICE THAT STOCK WOULD HAVE BEEN PURCHASED IN LIGHT OF THE

  IMPENDING EXCHANGE; MOREOVER, WHEN A CORPORATION ISSUES TO ITS

  PREFERRED SHAREHOLDERS ITS OWN NEW DEBT OBLIGATIONS IN EXCHANGE

FOR THE OUTSTANDING PREFERRED, THE CLAIMED FAIR MARKET VALUE OF

  BOTH SECURITIES IS SOMEWHAT ARTIFICIAL SINCE THE EXCHANGE IS

  EFFECTIVELY INSULATED FROM MARKET FORCES.  PP. 149 - 151. 

     (D) ABSENT ANY EVIDENCE THAT THE DIFFERENCE BETWEEN THE
CLAIMED

  $33 PER SHARE OF THE PREFERRED AND THE FACE AMOUNT OF THE

  DEBENTURES IS ATTRIBUTABLE TO DEBT DISCOUNT OR THAT THE DISCOUNT

  RATE WAS DETERMINED BY SUCH FACTORS AS RESPONDENT'S FINANCIAL

  CONDITION AT THE TIME OF THE EXCHANGE AND THE AVAILABILITY AND

  COST OF CAPITAL IN THE GENERAL MARKET AS WELL AS FROM THE

  PREFERRED SHAREHOLDERS, RATHER THAN SIMPLY HAVING BEEN PREDICATED

ON THE PREFERRED'S PAR VALUE, THE REQUISITE EVALUATION OF THE

  PROPERTY TO BE EXCHANGED CANNOT OCCUR AND DEBT DISCOUNT CANNOT BE

  DETERMINED.  P. 151. 

     (E) THE ALTERATION IN THE FORM OF THE RETAINED CAPITAL DID NOT

  GIVE RISE TO ANY COST OF BORROWING TO RESPONDENT, SINCE THE COST

OF THE CAPITAL INVESTED IN RESPONDENT WAS THE SAME WHETHER

  REPRESENTED BY THE PREFERRED OR BY THE DEBENTURES, AND WAS

  TOTALLY UNAFFECTED BY THE MARKET VALUE OF THE PREFERRED RECEIVED

  IN EXCHANGE.  PP. 151 - 155. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND DOUGLAS, BRENNAN, WHITE, MARSHALL, POWELL, AND

  REHNQUIST, JJ., JOINED, AND IN PARTS I, II, AND III OF WHICH

  STEWART, J., JOINED.  STEWART, J., CONCURRED IN THE JUDGMENT. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

A CORPORATE TAXPAYER IN 1957 ISSUED $50 FACE VALUE 5% SINKING FUND
DEBENTURES IN EXCHANGE FOR ITS OUTSTANDING $50 PAR 5% CUMULATIVE
PREFERRED SHARES.  AT THE TIME, THE PREFERRED APPARENTLY HAD A FAIR
MARKET VALUE OF LESS THAN $50 PER SHARE.  THIS CASE PRESENTS THE
QUESTION WHETHER, UNDER 163 (A) OF THE INTERNAL REVENUE CODE OF 1954,
26 U.S.C. 163 (A), /1/  THE TAXPAYER IS ENTITLED TO AN INCOME TAX
DEDUCTION FOR AMORTIZABLE DEBT DISCOUNT CLAIMED TO BE THE DIFFERENCE
BETWEEN THE FACE AMOUNT OF THE DEBENTURES AND THE PREFERRED'S VALUE AT
THE TIME OF THE EXCHANGE. 

        I 

THE FACTS ARE STIPULATED.  THE RESPONDENT, NATIONAL ALFALFA
DEHYDRATING AND MILLING COMPANY (HEREINAFTER CALLED "NAD" OR THE
"TAXPAYER"), IS A DELAWARE CORPORATION ORGANIZED IN MAY 1946.  IT HAS
ITS PRINCIPAL OFFICE AT SHAWNEE MISSION, KANSAS.  IT IS ENGAGED IN THE
BUSINESS OF DEHYDRATING AND MILLING ALFALFA. 

AT ITS ORGANIZATION, NAD WAS AUTHORIZED TO ISSUE $50 PAR CUMULATIVE
PREFERRED SHARES AND $1 PAR COMMON SHARES.  THE PREFERRED WAS ENTITLED
TO PREFERENTIAL DIVIDENDS AT THE RATE OF 5% PER ANNUM AND WAS
REDEEMABLE, IN WHOLE OR IN PART, AT THE DISCRETION OF THE BOARD OF
DIRECTORS OR THROUGH THE OPERATION OF A SINKING FUND, AT A STATED,
VARIABLE PRICE WHICH, IN 1957, WAS $51 PER SHARE PLUS ACCRUED
DIVIDENDS.  THE SINKING FUND PROVISION REQUIRED THAT 20% OF NET
EARNINGS (AFTER THE PAYMENT OF THE PREFERRED'S DIVIDENDS) WAS TO BE SET
ASIDE AND EMPLOYED FOR THE REDEMPTION OF PREFERRED.  ANY SHARES SO
REDEEMED WERE TO BE RETIRED AND COULD NOT BE REISSUED.  IF THERE WAS A
DIVIDEND ARREARAGE, THE PREFERRED COULD NOT BE PURCHASED, REDEEMED, OR
OTHERWISE ACQUIRED FOR VALUE BY THE CORPORATION UNLESS THE HOLDERS OF
50% OF THE PREFERRED SHARES CONSENTED, OR UNLESS NAD NOTIFIED ALL
PREFERRED SHAREHOLDERS OF ITS DESIRE TO PURCHASE AND INVITED TENDER
OFFERS.  UPON VOLUNTARY LIQUIDATION, THE PREFERRED WAS ENTITLED TO $50
PER SHARE PLUS ACCRUED DIVIDENDS BEFORE ANY DISTRIBUTION WAS MADE TO
HOLDERS OF THE COMMON SHARES. 

PRIOR TO JULY 23, 1956, NAD HAD OUTSTANDING COMMON SHARES AND 47,059
PREFERRED SHARES ON WHICH THERE WERE DIVIDEND ARREARAGES OF $10 PER
SHARE.  THE PREFERRED OUTSTANDING THUS HAD AN AGGREGATE PAR VALUE OF
$2,352,950 AS OF THAT DATE. 

ON APRIL 8, 1957, NAD'S BOARD OF DIRECTORS ADOPTED RESOLUTIONS /2/
"TO EFFECTUATE A REORGANIZATION OF THE COMPANY BY WAY OF
RECAPITALIZATION."  APP. 56.  THE PLAN PROPOSED BY THE BOARD HAD THREE
STEPS:  (1) AN AMENDMENT OF NAD'S ARTICLES OF INCORPORATION TO
ELIMINATE THE PREFERRED AS OF AUGUST 1, 1957, TO INCREASE THE PAR VALUE
OF THE COMMON FROM $1 TO $3 AND THE NUMBER OF SHARES OF COMMON
AUTHORIZED FROM 763,000 TO 1,000,000, AND TO AUTHORIZE THE ISSUE OF
WARRANTS FOR THE PURCHASE OF COMMON SHARES; (2) THE INDENTURED ISSUANCE
OF $2,352,950 PRINCIPAL AMOUNT OF 18 - YEAR 5% SINKING FUND DEBENTURES
DUE JULY 1, 1975, WITH ONE $50 DEBENTURE TO BE EXCHANGED FOR EACH SHARE
OF OUTSTANDING $50 PREFERRED; AND (3) THE ISSUANCE, TO THE HOLDER OF
EACH SHARE OF PREFERRED, OF A WARRANT TO PURCHASE ONE-HALF SHARE OF
COMMON AT $10 PER SHARE IN LIEU OF THE $10 DIVIDEND ARREARAGE.  THE
MEMBERS OF THE BOARD WOULD HAVE TESTIFIED THAT THE "PRINCIPAL BUSINESS
PURPOSE BEHIND THE 1957 EXCHANGE OF DEBENTURES FOR THE PREFERRED STOCK
WAS TO ENABLE NATIONAL ALFALFA TO EXPAND ITS EASTERN PRODUCING AREAS." 
ID., AT 25. 

AFTER THE BOARD HAD TAKEN THIS ACTION, NAD AND FIDELITY-PHILADELPHIA
TRUST .  COMPANY, AS TRUSTEE, EXECUTED A TRUST INDENTURE DATED JULY 1,
1957, PURSUANT TO WHICH THE AFOREMENTIONED DEBENTURES WERE TO BE ISSUED
IN EXCHANGE FOR NAD'S OUTSTANDING PREFERRED.  /3/ 

FIDELITY-PHILADELPHIA TRUST COMPANY, ON BEHALF OF NAD, REQUESTED A
RULING FROM THE UNITED STATES TREASURY DEPARTMENT AS TO THE FEDERAL
INCOME TAX CONSEQUENCES OF THE PLAN.  A RESPONSIVE LETTER-RULING OVER
THE SIGNATURE OF THE CHIEF, REORGANIZATION AND DIVIDEND BRANCH, WAS
FORTHCOMING ON MAY 29, 1957.  THE REQUEST HAD SOUGHT A RULING THAT ALL
ASPECTS OF THE PLAN WOULD BE TAX FREE.  THE RULING, HOWEVER, WAS TO THE
EFFECT THAT THE EXCHANGE OF THE $1 PAR COMMON FOR $3 PAR COMMON "WILL
CONSTITUTE A RECAPITALIZATION AND, THEREFORE, A REORGANIZATION, WITHIN
THE MEANING OF SECTION 368 (A)(1)(E), OF THE INTERNAL REVENUE CODE OF
1954," 26 U.S.C. 368 (A)(1)(E), AND THAT, AS A RESULT THEREOF, UNDER
354 (A) OF THE CODE, 26 U.S.C. 354(A), NO GAIN OR LOSS WOULD BE
RECOGNIZED ON THAT EXCHANGE BY NAD OR BY ITS COMMON SHAREHOLDERS.  APP.
20.  THE RULING WENT ON TO STATE, "ASSUMING BUT NOT DETERMINING THAT
THE 5% DEBENTURE BONDS TO BE ISSUED QUALIFY AS SECURITIES (CREATE A
GENUINE RELATIONSHIP OF DEBTOR AND CREDITOR), GAIN OR LOSS WILL BE
RECOGNIZED TO THE PREFERRED STOCKHOLDERS (UNDER 302(A) OF THE CODE, 26
U.S.C. 302(A)) FROM THE EXCHANGE" OF THE PREFERRED AND THE DIVIDEND
ARREARAGE FOR THE DEBENTURES AND WARRANTS.  THE GAIN OR LOSS SO TO BE
RECOGNIZED WOULD BE "MEASURED BY THE DIFFERENCE BETWEEN THE COST OR
OTHER ADJUSTED BASIS OF THE PREFERRED STOCK SURRENDERED AND THE FAIR
MARKET VALUES OF THE DEBENTURES AND WARRANTS RECEIVED."  APP. 20 - 21. 

SHAREHOLDER APPROVAL OF THE PLAN PROPOSED BY THE BOARD WAS
FORTHCOMING IN DUE COURSE.  ACCORDINGLY, NAD'S ARTICLES WERE AMENDED;
ON JULY 23, 1957, THE HOLDER OF EACH SHARE OF PREFERRED RECEIVED, IN
EXCHANGE THEREFOR, A $50 FACE VALUE 5% DEBENTURE DUE JULY 1, 1975, AND
A WARRANT TO SUBSCRIBE TO A HALF SHARE OF COMMON AT $10 PER SHARE IN
LIEU OF THE DIVIDEND ARREARAGE; AND THE PREFERRED WAS ELIMINATED AND
CANCELED AS OF AUGUST 1.  THIS WAS REFLECTED ON NAD'S BOOKS BY A DEBIT
TO THE PREFERRED STOCK ACCOUNT FOR $2,352,950, THEREBY ELIMINATING THAT
ACCOUNT, AND BY A CREDIT TO THE LIABILITY ACCOUNT FOR THE 18 - YEAR 5%
DEBENTURES IN THE AGGREGATE AMOUNT OF $2,352,950. 

NAD'S PREFERRED SHARES WERE NOT LISTED.  DURING THE PERIOD FROM JULY
15 - 30, 1957, THE BID QUOTATION FOR THE PREFERRED ON THE OVER-THE
COUNTER MARKET RANGED FROM A LOW OF 29 TO A HIGH OF 33, AND THE
OFFERING QUOTATION RANGED FROM A LOW OF 32 TO A HIGH OF 35.  APP. 161. 
/4/  ON JULY 23, WHEN THE EXCHANGE WAS EFFECTED, THE MID-POINT BETWEEN
THE BID AND OFFERING QUOTATIONS ON THE OVER-THE-COUNTER MARKET WAS 33. 
THE NATIONAL STOCK SUMMARY FOR OCTOBER 1, 1957, SHOWED 100 SHARES OF
NAD PREFERRED WANTED ON JULY 9 AT 32 AND ON JULY 10 AT 33, AND 100
SHARES OFFERED ON JULY 10 AT 35.  ID., AT 167.  IT SHOWED NO QUOTATIONS
FOR THE WARRANTS IN JULY AND ONLY NOMINAL FIGURE WANT QUOTATIONS FOR
THEM ON FOUR DATES IN AUGUST.  ID., AT 168. 

ON EACH OF ITS FEDERAL INCOME TAX RETURNS FOR THE FISCAL YEARS ENDED
APRIL 30, 1958, TO 1967, INCLUSIVE, NAD CLAIMED A DEDUCTION UNDER 163
(A) FOR WHAT IT REGARDED AS INTEREST, BY REASON OF DEBT DISCOUNT,
MEASURED BY THE DIFFERENCE BETWEEN $33 PER SHARE FOR THE PREFERRED ON
JULY 23, 1957, AND THE FACE AMOUNT OF THE DEBENTURES.  THIS DIFFERENCE
AMOUNTED TO $800,003 ($2,352,950 FOR THE DEBENTURES, LESS $1,552,947
FOR THE PREFERRED).  THE $800,003 WAS THEN AMORTIZED ON A STRAIGHT-LINE
BASIS OVER THE 18 - YEAR LIFE OF THE DEBENTURES, WITH AN ADDITION EACH
YEAR FOR THE UNAMORTIZED DISCOUNT ON ANY DEBENTURES CURRENTLY
REPURCHASED OR REDEEMED.  SEE REV. RUL. 70 - 353, 1970 - 2 CUM.BULL. 
39.  THE DEDUCTIONS CLAIMED ARE SET FORTH IN THE MARGIN; /5/  THOSE OF
THE EARLIER YEARS WERE REFLECTED IN LOSSES CARRIED OVER TO FISCAL
1967. 

UPON AUDIT OF NAD'S RETURN FOR FISCAL 1967, THE COMMISSIONER OF
INTERNAL REVENUE DISALLOWED THE DEBT DISCOUNT OF $109,804 CLAIMED FOR
THAT YEAR AND $321,657 IN LOSS CARRYOVERS FROM PRIOR TAXABLE YEARS THAT
WERE DUE TO DEBT-DISCOUNTS DEDUCTIONS ASSERTED IN THOSE YEARS.  THIS
RESULTED IN A SUBSTANTIAL DEFICIENCY IN NAD'S 1967 CORPORATE INCOME
TAX. 

ON PETITION FOR REDETERMINATION, THE TAX COURT, BY A UNANIMOUS
REVIEWED OPINION, UPHELD THE COMMISSIONER.  57 T.C. 46 (1971). 
ADOPTING THE REASONING OF THE COURT OF CLAIMS IN ERIE LACKAWANNA R. CO.
V. UNITED STATES, 190 CT.CL. 682, 422 F.2D 425 (1970), AND IN MISSOURI
PACIFIC R. CO. V. UNITED STATES, 192 CT.CL. 318, 427 F.2D 727 (1970),
MODIFIED ON REHEARING, 193 CT.CL. 257, 433 F.2D 1324 (1970), CERT.
DENIED, 402 U.S. 944 (1971), THE TAX COURT HELD THAT WHEN A CORPORATION
ISSUES OBLIGATIONS IN EXCHANGE FOR ITS OUTSTANDING PREFERRED, NO
DISCOUNT ARISES IF THE AMOUNT THAT HAD BEEN RECEIVED UPON THE ISSUANCE
OF THE PREFERRED WAS EQUAL TO THE FACE AMOUNT OF THE OBLIGATIONS ISSUED
UPON THE EXCHANGE.  THE MARKET VALUE OF THE PREFERRED AT THE TIME OF
THE EXCHANGE, THEREFORE, WOULD BE OF NO RELEVANCE. 

ON APPEAL, THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT,
BY A DIVIDED VOTE, REVERSED.  472 F.2D 796 (1973).  RELYING UPON
AMERICAN SMELTING & REFINING CO. V. UNITED STATES, 130 F.2D 883 (CA3
1942), AND ATCHISON, T. & S.F.R. CO. V. UNITED STATES, 443 F.2D 147
(CA10 1971), THE COURT HELD THAT THE DIFFERENCE BETWEEN THE VALUE OF
THE PREFERRED AND THE FACE AMOUNT OF THE DEBENTURES AT THE TIME OF THE
EXCHANGE REPRESENTED A DISCOUNT OR EXPENSE OF BORROWING, AND QUALIFIED
AS AN INTEREST DEDUCTION TO BE PROPERLY AMORTIZED OVER THE LIFE OF THE
DEBENTURES.  WE GRANTED CERTIORARI TO RESOLVE THE INDICATED CONFLICT. 
414 U.S. 817 (1973). 

        II 

THE SITUATION WITH WHICH WE ARE HERE CONCERNED, THEREFORE, IS ONE
WHERE A TAXPAYER CORPORATION ISSUED DEBT OBLIGATIONS, NAMELY,
DEBENTURES, IN EXCHANGE FOR ITS OWN OUTSTANDING PREFERRED SHARES.  IT
IS NOT ONE WHERE THE TAXPAYER ISSUED DEBT OBLIGATIONS IN EXCHANGE FOR
CASH IN AN AMOUNT LESS THAN THE OBLIGATIONS' FACE AMOUNT, OR IN
EXCHANGE FOR PROPERTY OTHER THAN ITS OWN STOCK.  SECTION 163 (A), THE
SHORT, PERTINENT PART OF WHICH IS SET FORTH IN N. 1, SUPRA, IS THE
STATUTE NAD SEEKS TO INVOKE IN ORDER TO HAVE THE BENEFIT OF A DEDUCTION
FOR WHAT IT CLAIMS IS AMORTIZABLE DEBT DISCOUNT.  THE STATUTE RELATES
SIMPLY TO "ALL INTEREST PAID OR ACCRUED WITHIN THE TAXABLE YEAR ON
INDEBTEDNESS."  NAD'S DEBENTURES OBVIOUSLY REPRESENTED DEBT, AND THE
STATED 5% INTEREST DUE SEMIANNUALLY ON THOSE DEBENTURES JUST AS
OBVIOUSLY WOULD QUALIFY AS A DEDUCTION FROM GROSS INCOME FOR NAD UNDER
163 (A).  THE ISSUE HERE, HOWEVER, IS WHETHER NAD IS ALSO ENTITLED, IN
ADDITION TO THE DEDUCTION FOR THE STATED INTEREST, TO A FURTHER
DEDUCTION, AS "INTEREST PAID OR ACCRUED,"  FOR AN APPROPRIATELY
AMORTIZED PORTION OF THE CLAIMED $17 DIFFERENCE BETWEEN THE FACE AMOUNT
OF EACH $50 DEBENTURE AND THE VALUE OF EACH SHARE OF PREFERRED ON JULY
23, 1957. 

ORIGINAL-ISSUE DISCOUNT TYPICALLY ARISES WHERE AN ISSUER SELLS ITS
DEBT OBLIGATION ON THE MARKET FOR CASH AT A PRICE LESS THAN THE FACE
AMOUNT OF THE OBLIGATION.  THE DIFFERENCE, OBVIOUSLY, IS THE DISCOUNT. 
A SIMPLE EXAMPLE IS WHERE A CORPORATION ISSUES ITS 6% $1,000 10 - YEAR
BOND FOR $950 CASH.  THE CORPORATION IS OBLIGED TO PAY AND THE
BONDHOLDER IS ENTITLED TO RECEIVE, THE STATED ANNUAL INTEREST OF 6%, OR
$60.  THAT AMOUNT IS DEDUCTIBLE BY THE CORPORATION AND IS INCLUDABLE IN
THE PAYEE'S GROSS INCOME AS INTEREST RECEIVED.  BUT THE $50 DIFFERENCE
BETWEEN THE FACE AMOUNT OF THE OBLIGATION AND THE ISSUE PRICE IS AN
ADDITIONAL COST TO THE ISSUING CORPORATION FOR THE USE OF THE MONEY IT
IS BORROWING.  THAT COST SPREAD OVER THE 10 - YEAR LIFE OF THE BOND
AMOUNTS TO $5 PER YEAR.  ACCEPTED ACCOUNTING PRACTICE TREATS THIS
DISCOUNT AS INTEREST UNDER 163 (A).  /6/ 

THE INTERNAL REVENUE CODE OF 1939 AND ITS PREDECESSORS DID NOT
PROVIDE EXPLICITLY FOR AMORTIZATION AND DEDUCTION OF DEBT DISCOUNT. 
THE SUCCESSIVE REGULATIONS, HOWEVER, BEGINNING WITH ART. 150 OF
TREASURY REGULATIONS 33 (REVISED 1918), ISSUED UNDER THE REVENUE ACT OF
1916, HAVE PROVIDED FOR SUCH AMORTIZATION AND DEDUCTION BY THE ISSUER. 
/7/ 

THE FIRST STATUTORY RECOGNITION OF BOND DISCOUNT APPEARED IN
1232(B)(1) OF THE 1954 CODE.  THAT SECTION PROVIDES: 

     "FOR PURPOSES OF SUBSECTION (A), THE TERM 'ORIGINAL ISSUE

DISCOUNT'  MEANS THE DIFFERENCE BETWEEN THE ISSUE PRICE AND THE

  STATED REDEMPTION PRICE AT MATURITY . . . ." 


THIS COURT HAS RECOGNIZED DEBT DISCOUNT AS AN ADDITIONAL COST
INCURRED IN BORROWING MONEY.  IN HELVERING V. UNION PACIFIC R. CO., 293
U.S. 282 (1934), IN CONSIDERING ARTICLE 150 OF REGULATIONS 33 (REVISED
1918), WHICH DESCRIBED BOND DISCOUNT AS A "LOSS" TO BE "PRORATED OVER
THE LIFE OF THE BONDS SOLD," THE COURT REFERRED TO DISCOUNT NOT ONLY AS
A LOSS BUT ALSO AS "INTEREST PAID FOR THE USE OF CAPITAL PROCURED BY A
BOND ISSUE."  293 U.S., AT 286.  MORE RECENTLY, IN UNITED STATES V.
MIDLAND-ROSS CORP., 381 U.S. 54 (1965), WE CLARIFIED ANY AMBIGUITY THAT
MAY HAVE RESULTED FROM THE INTEREST-LOSS APPROACH WHEN WE STATED, ID.,
AT 57: 

"EARNED ORIGINAL ISSUE DISCOUNT SERVES THE SAME FUNCTION AS STATED
INTEREST . . . . (IT IS SIMPLY 'COMPENSATION FOR THE USE OR FORBEARANCE
OF MONEY.'  DEPUTY V. DU PONT, 308 U.S. 488, 498."  IT WAS ALSO
OBSERVED THAT, 

"DESPITE SOME EXPRESSIONS INDICATING A CONTRARY VIEW, THIS COURT HAS
OFTEN RECOGNIZED THE ECONIMIC FUNCTION OF DISCOUNT AS INTEREST."  ID.,
AT 66 (FOOTNOTE OMITTED).  ACCORDINGLY, THE DISCOUNT MAY RESULT
ULTIMATELY IN INCOME TO THE PURCHASER, /9/  BUT WHEN AMORTIZED OVER THE
LIFE OF THE OBLIGATION, IT IS DEDUCTIBE BY THE ISSUER.     WHILE IT IS
THUS ESTABLISHED THAT DEBT DISCOUNT MAY ENSUE WHEN A CORPORATE DEBT
OBLIGATION IS ISSUED AT A DISCOUNT FOR CASH, THIS COURT HAS NEVER
DECIDED THE QUESTION WHETHER DISCOUNT MAY RESULT WHEN DEBT OBLIGATIONS
ARE ISSUED IN EXCHANGE FOR PROPERTY OTHER THAN CASH.  THOSE COURTS THAT
HAVE PASSED UPON THE ISSUE HAVE REACHED OPPOSING CONCLUSIONS.  COMPARE
NASSAU LENS CO. V. COMMISSIONER, 308 F.2D 39 (CA2 1962); AMERICAN
SMELTING & REFINING CO. V. UNITED STATES, 130 F.2D 883 (CA3 1942);
SOUTHERN FERTILIZER & CHEMICAL CO. V. EDWARDS, 167 F.SUPP.  879 (MD GA.
1955), TO THE EFFECT THAT DEBT DISCOUNT IS AVAILABLE, WITH SOUTHERN
NATURAL GAS CO. V. UNITED STATES, 188 CT.CL. 302, 412 F.2D 1222, 1235 -
1239 (1969); MONTANA POWER CO. V. UNITED STATES, 141 CT.CL. 620, 159
F.SUPP.  593, CERT. DENIED, 358 U.S. 842 (1958); MONTANA POWER CO. V.
UNITED STATES, 232 F.2D 541 (CA3) EN BANC), /10/  CERT. DENIED, 352
U.S. 843 (1956), TO THE EFFECT THAT IT IS NOT AVAILABLE.  THIS, OF
COURSE, IS A BROADER QUESTION THAN THE ONE PRESENTED IN THE PRESENT
CASE, AND WE NEED NOT, AND DO NOT, DECIDE THAT BROADER ISSUE.  WE ARE
CONCERNED, INSTEAD, ONLY WITH THE NARROW ISSUE WHETHER DEBT DISCOUNT
ARISES WHERE A CORPORATE TAXPAYER ISSUES AN OBLIGATION IN EXCHANGE FOR
ITS OWN OUTSTANDING PREFERRED SHARES. 

IN ORDER PROPERLY TO DETERMINE WHETHER DEBT DISCOUNT MAY BE SAID TO
ARISE IN SUCH A SITUATION, IT BECOMES NECESSARY TO RECOGNIZE THE REASON
OR FACTOR THAT HAS BEEN THOUGHT TO JUSTIFY THE DEDUCTION.  THIS HAS
BEEN THE ECONOMIC RESEMBLANCE, IN BOTH FORM AND FUNCTION, WHICH BOND
DISCOUNT BEARS TO STATED INTEREST FOR WHICH THE REVENUE ACTS AND THE
CODES HAVE ALLOWED A DEDUCTION.  ALTHOUGH, AS HAS BEEN NOTED, THERE HAS
BEEN SOME DESCRIPTIVE CONFUSION IN THE REGULATIONS, WITH THEIR
REFERENCES TO "LOSS" AS WELL AS TO "INTEREST," AND, AS HAS ALSO BEEN
NOTED, THIS COURT, IN HELVERING V. UNION PACIFIC R. CO., 293 U.S., AT
286, SEEMED TO DESCRIBE DISCOUNT BOTH AS "INTEREST PAID FOR THE USE OF
CAPITAL" AND AS "LOSS RESULTING FROM THE FUNDING OPERATION," THE
RELEVANT INQUIRY IN EACH CASE MUST BE WHETHER THE ISSUER-TAXPAYER HAS
INCURRED, AS A RESULT OF THE TRANSACTION, SOME COST OR EXPENSE OF
ACQUIRING THE USE OF CAPITAL.  IT IS TO THAT INQUIRY WE NOW TURN. 

    III 

IT IS NAD'S POSITION, OF COURSE, THAT AMORTIZABLE BOND DISCOUNT
AROSE ON THE EXCHANGE OF ITS DEBENTURES FOR ITS OUTSTANDING PREFERRED. 
IT, AND THE COURT OF APPEALS' MAJORITY, WOULD LOOK TO WHAT IT CALLS THE
"ECONOMIC REALITIES" OF THE TRANSACTION IN ORDER TO DETERMINE WHETHER A
COST OF BORROWING WAS INCURRED.  THE COURT OF APPEALS LIKENED THE
TRANSACTION TO ONE WHERE THE CORPORATION ACTUALLY ISSUED ITS $50
DEBENTURE FOR $33 IN CASH UPON THE OPEN MARKET (OR TO A HOLDER OF
PREFERRED) AND THEN USED THAT CASH TO PURCHASE AND RETIRE OUTSTANDING
PREFERRED AT $33 PER SHARE.  472 F.2D, AT 802.  UPON SUCH A
TRANSACTION, IT IS CLAIMED, THERE CAN BE NO QUESTION WHATSOEVER THAT A
DEDUCTIBLE DISCOUNT OF $17 PER DEBENTURE WOULD RESULT.  IT IS ARGUED
THAT TO DENY SIMILAR TREATMENT TO THE TRANSACTION WHICH DID TAKE PLACE,
WHERE A DIRECT EXCHANGE WAS MADE WITH THE PREFERRED SHAREHOLDER, WOULD
REQUIRE A CORPORATE TAXPAYER IN THE FUTURE TO ENGAGE IN A COMPLEX AND
EXPENSIVE SERIES OF SECURITIES TRANSACTIONS IN ORDER TO ESTABLISH ITS
ENTITLEMENT TO A DEDUCTION. 

THIS ARGUMENT, HOWEVER, CALLS UPON THIS COURT TO TAKE TWO STEPS THAT
WE ARE RELUCTANT AND UNWILLING TO TAKE.  FIRST, IT WOULD REQUIRE
REJECTION OF THE ESTABLISHED TAX PRINCIPLE THAT A TRANSACTION IS TO BE
GIVEN ITS TAX EFFECT IN ACCORD WITH WHAT ACTUALLY OCCURRED AND NOT IN
ACCORD WITH WHAT MIGHT HAVE OCCURRED.  SECOND, IT WOULD REQUIRE US TO
SPECULATE ABOUT THE MARKET PRICE AND VALUE TO THE CORPORATION OF THE
DEBENTURES IN QUESTION HAD THEY BEEN SOLD UPON THE OPEN MARKET. 

EVEN IF WE WERE TO ASSUME, ARGUENDO, THAT THE HYPOTHETICAL
TRANSACTION POSED BY THE TAXPAYER AND THE COURT OF APPEALS WAS
INDISTINGUISHABLE, AS A MATTER OF ECONOMIC REALITY, FROM WHAT ACTUALLY
OCCURRED, WE WOULD NOT BE REQUIRED, FOR THAT REASON ALONE, TO RECOGNIZE
A CLAIMED DEDUCTION FOR DEBT DISCOUNT.  THE PROPRIETY OF A DEDUCTION
DOES NOT TURN UPON GENERAL EQUITABLE CONSIDERATIONS, SUCH AS A
DEMONSTRATION OF EFFECTIVE ECONOMIC AND PRACTICAL EQUIVALENCE.  RATHER,
IT "DEPENDS UPON LEGISLATIVE GRACE; AND ONLY AS THERE IS CLEAR
PROVISION THEREFOR CAN ANY PARTICULAR DEDUCTION BE ALLOWED."  NEW
COLONIAL ICE CO. V. HELVERING, 292 U.S. 435, 440 (1934); DEPUTY V. DU
PONT, 308 U.S. 488, 493 (1940).  THIS COURT HAS OBSERVED REPEATEDLY
THAT, WHILE A TAXPAYER IS FREE TO ORGANIZE HIS AFFAIRS AS HE CHOOSES,
NEVERTHELESS, ONCE HAVING DONE SO, HE MUST ACCEPT THE TAX CONSEQUENCES
OF HIS CHOICE, WHETHER CONTEMPLATED OR NOT, HIGGINS V. SMITH, 308 U.S.
473, 477 (1940); OLD MISSION PORTLAND CEMENT CO. V. HELVERING, 293 U.S.
289, 293 (1934); GREGORY V. HELVERING, 293 U.S. 465, 469 (1935), AND
MAY NOT ENJOY THE BENEFIT OF SOME OTHER ROUTE HE MIGHT HAVE CHOSEN TO
FOLLOW BUT DID NOT.  "TO MAKE THE TAXABILITY OF THE TRANSACTION DEPEND
UPON THE DETERMINATION WHETHER THERE EXISTED AN ALTERNATIVE FORM WHICH
THE STATUTE DID NOT TAX WOULD CREATE BURDEN AND UNCERTAINTY."  FOUNDERS
GENERAL CORP. V. HOEY, 300 U.S. 268, 275 (1937); TELEVISION INDUSTRIES,
INC. V. COMMISSIONER, 284 F.2D 322, 325 (CA2 1960); INTERLOCHEN CO. V.
COMMISSIONER, 232 F.2D 873, 877 (CA4 1956).  SEE GRAY V. POWELL, 314
U.S. 402, 414 (1941). 

BOTH THE RATIONALE AND THE WISDOM OF THE COURT'S ATTITUDE TOWARD
SUCH ATTEMPTS AT RECONSTRUCTION OF TRANSACTIONS ARE PARTICULARLY WELL
DEMONSTRATED IN THE PRESENT CASE.  IN THE ABSENCE OF ANY ACTUAL OR EVEN
ATTEMPTED SALES OF DEBENTURES OR PURCHASES OF THE PREFERRED BY NAD IN
THE OPEN MARKET, THE COURT IS CALLED UPON TO SPECULATE AS TO WHAT THE
MARKET PRICE AND THE INVESTOR REACTION TO SUCH EVENTS WOULD HAVE BEEN. 
THERE ARE SEVERAL REASONS WHY WE CANNOT DO THIS: 

FIRST, THERE IS NOTHING IN THE RECORD ESTABLISHING THE CASH PRICE AT
WHICH THE DEBENTURES COULD HAVE BEEN SOLD UPON THE MARKET HAD THEY BEEN
OFFERED FOR SALE.  THE CURRENT RATE FOR MONEY AND THE CREDIT STATUS OF
THE BORROWER ARE PERTINENT FACTORS IN THE DETERMINATION OF DISCOUNT (OR
PREMIUM) ON AN OPEN MARKET, AS CONTRASTED WITH A CLOSED TRANSACTION. 

SECOND, THERE IS ALSO NOTHING IN THE RECORD TO INDICATE THAT NAD
WOULD HAVE BEEN ABLE TO PURCHASE ALL ITS OUTSTANDING PREFERRED ON THE
OPEN MARKET, OR AT WHAT PRICE THAT QUANTITY OF STOCK WOULD HAVE BEEN
PURCHASED IN LIGHT OF THE IMPENDING EXCHANGE.  SEE GULF, M. & O. R. CO.
V. UNITED STATES, 339 F.SUPP.  489 (SD ALA. 1972), FINAL DECISION 31
A.F.T.R. 2D 73 - 436 (1972), PENDING ON APPEAL TO CA5 AND DEFERRED
AWAITING THE DECISION IN THIS CASE; CITIES SERVICE CO. V. UNITED
STATES, 316 F.SUPP.  61 (SDNY 1970), 362 F.SUPP.  830 (SDNY 1973),
APPEAL TO CA2 PENDING.  THE STIPULATED OVER-THE-COUNTER QUOTATIONS, SET
FORTH IN N. 4, SUPRA, AND IN THE CITED NATIONAL STOCK SUMMARY, ARE
QUOTATIONS ONLY FOR WHAT AT MOST WAS A THIN MARKET, AND WERE HARDLY
REPRESENTATIVE OF THE FAIR MARKET VALUE OF THE ENTIRE 47,059 PREFERRED
SHARES OUTSTANDING.  THE PREFERRED'S REDEMPTION PRICE AT THE TIME WAS
$51 PLUS THE ARREARAGE, OR A TOTAL OF $61, ALMOST DOUBLE THE CLAIMED
$33 PER SHARE. 

THIRD, WHEN A CORPORATION ISSUES TO ITS PREFERRED SHAREHOLDERS ITS
OWN NEW DEBT OBLIGATIONS IN EXCHANGE FOR OUTSTANDING PREFERRED, THE
CLAIMED FAIR MARKET VALUE OF BOTH SECURITIES IS SOMEWHAT ARTIFICIAL
SINCE THE EXCHANGE IS EFFECTIVELY INSULATED FROM MARKET FORCES BY THE
INTRACORPORATE AND PRIVATE NATURE OF THE TRANSACTION.  SEE MISSOURI
PACIFIC R. CO. V. UNITED STATES, 192 CT.DL., AT 324 - 325, 427 F.2D, AT
730 - 731.  THE ECONOMICS UNDERLYING DISCOUNT IS THAT IT IS AN
ADJUSTMENT OF THE DIFFERENCE BETWEEN THE INTEREST PRESCRIBED IN THE
INSTRUMENT ISSUED AND THE PREVAILING MARKET RATE FOR MONEY, AND IT
ARISES BECAUSE THE PRESCRIBED RATE IS TOO LOW TO SELL THE OBLIGATIONS
AT PAR IN THAT MARKET.  SEE SAN JOAQUIN LIGHT & POWER CORP. V.
MCLAUGHLIN, 65 F.2D 677, 679 (CA9 1933).  THUS, IMPLICIT IN THE CONCEPT
OF DEBT DISCOUNT IS THE ASSUMPTION, AND INDEED THE REQUIREMENT, THAT
THE TRANSACTION BE SUBJECT TO THE EXIGENCIES OF THE COMPETITIVE MONEY
MARKET. 

HERE, THERE HAS BEEN NO DEMONSTRATION THAT THE DIFFERENCE BETWEEN
THE CLAIMED $33 PER SHARE VALUE OF NAD'S PREFERRED (LAYING ASIDE FOR
THE MOMENT THE AFOREMENTIONED DIFFICULTIES IN ARRIVING AT THAT
DETERMINATION) AND THE FACE AMOUNT OF THE DEBENTURES IS ATTRIBUTABLE TO
DEBT DISCOUNT.  AS THE TAX COURT NOTED, 57 T.C., AT 52 N. 6, THERE IS
NO EVIDENCE OF WHAT THE FAIR MARKET VALUE OF BONDS WAS AT THE TIME OF
THEIR ISSUANCE.  OTHER FACTORS THAT WOULD HAVE TO BE CONSIDERED WOULD
INCLUDE NAD'S FINANCIAL CONDITION AT THE TIME OF THE EXCHANGE,
INCLUDING BOTH ITS CREDIT POSITION AND ITS PROFITS PROSPECTS, AND THE
AVAILABILITY AND COST OF CAPITAL IN THE GENERAL MARKET AS WELL AS FROM
ITS PREFERRED SHAREHOLDERS.  NORMALLY, THE MARKET ITSELF PERFORMS THIS
EVALUATIVE PROCESS.  ASIDE FROM THE FACT THAT THE TRANSACTION WAS
INSULATED FROM THE MARKET PROCESSES, THERE HAS BEEN NO ATTEMPT HERE TO
SHOW THAT THE DISCOUNT RATE WAS DETERMINED WITH A VIEW TOWARD
ACCOUNTING FOR THESE SEVERAL FACTORS RATHER THAN SIMPLY HAVING BEEN
PREDICATED ON THE PAR VALUE OF THE PREFERRED.  ACCORDINGLY, THE
REQUISITE EVALUATION OF THE PROPERTY TO BE EXCHANGED CANNOT OCCUR IN
THIS INTRACORPORATE TRANSACTION AND DEBT DISCOUNT CANNOT BE
DETERMINED.  CF. GULF, M. & O.R. CO. V. UNITED STATES, SUPRA; SOUTHERN
FERTILIZER & CHEMICAL CO. V. EDWARDS, 167 F.SUPP., AT 881. 

  IV 

IT HAS NOT BEEN DEMONSTRATED THAT NAD, BY THE EXCHANGE, INCURRED ANY
ADDITIONAL COST FOR THE USE OF CAPITAL.  NAD MERELY REPLACED THAT
PORTION OF ITS PAID-IN CAPITAL REPRESENTED BY ITS PREFERRED WITH PAID
IN CAPITAL REPRESENTED BY ITS DEBENTURES.  FROM THE PERSPECTIVE OF THE
CORPORATION, THE TRANSACTION WAS THE EXCHANGE OF ONE FORM OF INTEREST
OR PARTICIPATION IN THE CORPORATION FOR ANOTHER.  BUT THE CORPORATE
ASSETS WERE NEITHER INCREASED NOR DIMINISHED.  /11/ 

TO BE SURE, UPON THE ISSUANCE OF ITS DEBENTURES, NAD ASSUMED A FIXED
OBLIGATION TO PAY AT A DATE CERTAIN.  THE TRANSACTION, THEREFORE,
PERHAPS COULD BE SAID TO BE SOMETHING MORE THAN A MERE RESHUFFLING OF
THE CORPORATION'S CAPITAL STRUCTURE, SEE HELVERING V. SOUTHWEST
CONSOLIDATED CORP., 315 U.S. 194, 202 (1942), SINCE A CREDITOR WAS
SUBSTITUTED FOR A HOLDER WITH AN OWNERSHIP INTEREST.  /12/  BUT AGAIN,
WHEN VIEWED FROM THE CORPORATION'S PERSPECTIVE, AND REGARDLESS OF THE
INCOME TAX EFFECT UPON THE FORMER PREFERRED SHAREHOLDER, WHICH WE DEEM
TO BE IRRELEVANT, THERE HAS BEEN NO NEW CAPITAL ACQUIRED AND NO
ADDITIONAL COST INCURRED IN RETAINING THE OLD CAPITAL.  SEE ST. LOUIS -
S.F.R. CO. V. UNITED STATES, 195 CT.CL. 343, 350, 444 F.2D 1102, 1106
(1971), CERT. DENIED, 404 U.S. 1017 (1972). 

IN OBVIOUS EXPLANATION OF THIS, NAD ORIGINALLY RECEIVED $50 CASH FOR
EACH SHARE OF PREFERRED.  ALTHOUGH IT WAS NOT OBLIGATED TO REPAY THAT
SUM AT ANY FIXED TIME, IT MADE USE OF THAT CASH PURSUANT TO THE
PROVISIONS OF ITS ARTICLES, INCLUDING BOTH THE SINKING FUND AND THE
REDEMPTION-LIQUIDATION PROVISIONS.  UPON THE EXCHANGE, THE CORPORATION
CANCELED THE PREFERRED, AND THUS ELIMINATED THE PREFERRED STOCK ACCOUNT
UPON ITS BOOKS, TOGETHER WITH THE PREFERRED'S ATTENDANT OBLIGATIONS. 
THE MARKET VALUE OF THE PREFERRED AT THAT MOMENT BORE NO DIRECT
RELATIONSHIP TO THE AMOUNT OF FUNDS ON HAND.  THE CAPITAL "FREED" BY
THE CANCELLATION OF THE PREFERRED WAS MERELY TRANSFERRED TO THE
LIABILITY ACCOUNT FOR THE DEBENTURES.  NO NEW CAPITAL WAS INVOLVED. 
SEE CLAUSSEN'S, INC. V. UNITED STATES, 469 F.2D 340 (CA5 1972).  /13/ 

IT IS TRUE THAT THERE WAS SOME CHANGE IN THE CORPORATE STRUCTURE. 
HENCEFORTH, NAD WOULD RECEIVE A DEDUCTION FOR INTEREST PAID ON THE
DEBENTURES, WHEREAS THE 5% DIVIDEND PAID ON THE PREFERRED HAD NOT BEEN
DEDUCTIBLE.  THE COMMON SHAREHOLDERS WERE BENEFITED BY THE ELIMINATION
OF THE DIVIDEND ARREARAGES ON THE PREFERRED AND BY THE ELIMINATION OF
THE PREMIUM PAYABLE ON THE PREFERRED'S RETIREMENT.  YET THE CHANGE WAS
NOT GREAT.  THE FIXED INTEREST ON THE DEBENTURES WAS EQUAL TO THE
CUMULATIVE DIVIDEND ON THE PREFERRED, AND BOTH THE PREFERRED AND THE
DEBENTURES WORKED EQUAL DIMINUTIONS IN THE EARNINGS OTHERWISE AVAILABLE
FOR THE COMMON SHAREHOLDERS.  THE DEBENTURES, OF COURSE, WERE TO MATURE
IN 1975, BUT THE SINKING FUND PROVISIONS FOR BOTH THE PREFERRED AND THE
DEBENTURES WERE COMPARABLE.  THUS, THE INTEREST OF THE PREFERRED
SHAREHOLDERS "WAS FAIRLY REFLECTED IN THE HIGHLY EQUIVALENT
CHARACTERISTICS OF THE DEBENTURES INTO WHICH THE PREFERRED WAS
CONVERTED."  PENFIELD V. DAVIS, 105 F.SUPP.  292, 311 (ND ALA. 1952),
AFF'D, 205 F.2D 798 (CA5 1953).  THE COST OF THE CAPITAL INVESTED IN
THE CORPORATION WAS THE SAME WHETHER REPRESENTED BY THE PREFERRED OR BY
THE DEBENTURES, AND WAS TOTALLY UNAFFECTED BY THE MARKET VALUE OF THE
SHARES RECEIVED AT THE TIME OF THE ISSUANCE OF THE DEBENTURES. 
ACCORDINGLY, WHILE RECOGNIZING THE ALTERATION WHICH DID OCCUR IN THE
CORPORATION'S CAPITAL STRUCTURE, WE CONCLUDE THAT THE SUBSTITUTION BY
NAD OF ITS DEBENTURES FOR ITS PREVIOUSLY OUTSTANDING PREFERRED, WITHOUT
MORE, DID NOT CREATE AN OBLIGATION TO PAY IN EXCESS OF AN AMOUNT
PREVIOUSLY COMMITTED, OR ESTABLISH THE BASE UPON WHICH DEBT DISCOUNT
CAN ARISE. 

IN SUM, THE ALTERATION IN THE FORM OF THE RETAINED CAPITAL DID NOT
GIVE RISE TO ANY COST OF BORROWING TO NAD.  THE FACT THAT THE PREFERRED
MAY HAVE BEEN WORTH SOMETHING IN THE NEIGHBORHOOD OF ONLY $33 PER SHARE
ON THE MARKET AT THE TIME OF THE EXCHANGE WAS OF NO CONSEQUENCE, SINCE
NAD WAS NOT REQUIRED TO GO INTO THAT MARKET AND PURCHASE THOSE SHARES. 
IT WAS ABLE, INSTEAD, TO OBTAIN THE PREFERRED MERELY BY CANCELING THE
$50 OBLIGATION PER SHARE ON ITS EQUITY ACCOUNT AND TRANSFERRING THAT
AMOUNT TO ITS DEBT ACCOUNT.  IT IS IN THIS SENSE THAT AN EXCHANGE OF A
CORPORATION'S OWN OUTSTANDING PREFERRED FOR NEWLY ISSUED DEBT
OBLIGATIONS MAY DIFFER, IN THE TAX SENSE, FROM AN EXCHANGE FOR OTHER
PROPERTY.  SUCH OTHER PROPERTY--FOR EXAMPLE, INVENTORY OR THE STOCK OF
ANOTHER CORPORATION--DOES NOT EQUATE WITH A PREVIOUS CONTRIBUTION OF
CAPITAL WHICH CAN CONTINUE TO BE UTILIZED BY THE CORPORATIONS AT NO
COST UPON CANCELLATION OF THE PREFERRED EQUITY ACCOUNT.     WE HOLD,
ACCORDINGLY, THAT NAD DID NOT INCUR AMORTIZABLE BOND DISCOUNT UPON THE
ISSUANCE OF ITS $50 FACE VALUE 5% DEBENTURES IN EXCHANGE FOR ITS
OUTSTANDING $50 PAR CUMULATIVE PREFERRED STOCK.  THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED. 

            IT IS SO ORDERED. 

/1/  "163.  INTEREST. 

"(A) GENERAL RULE. 

"THERE SHALL BE ALLOWED AS A DEDUCTION ALL INTEREST PAID OR ACCRUED
WITHIN THE TAXABLE YEAR ON INDEBTEDNESS." 

/2/  THE RESOLUTIONS ARE SET FORTH IN FULL IN THE OPINION OF THE
COURT OF APPEALS.  472 F.2D 796, 798 N. 1 (CA10 1973). 

/3/  THE INDENTURE PROVIDED FOR SUBORDINATION, REDEMPTION, AND A
SINKING FUND.  SPECIFICALLY, THE DEBENTURES WERE TO BE SUBORDINATE TO
BANK LOANS FOR INVENTORY PURPOSES AND TO OBLIGATIONS FOR MATERIALS,
SERVICES, AND LABOR SUPPLIED IN THE NORMAL COURSE OF BUSINESS.  THEY
WERE REDEEMABLE, IN WHOLE OR IN PART, AND FROM TIME TO TIME, AFTER JULY
1, 1958, AT PAR PLUS ACCRUED INTEREST. 

THE SINKING FUND PROVISION REQUIRED NAD, AFTER APRIL 30, 1959, TO
SET ASIDE ANNUALLY, FOR REDEMPTION OF DEBENTURES AT PAR PLUS ACCRUED
INTEREST, THE LESSER OF (A) THE SUM SUFFICIENT TO REDEEM $196,080 FACE
AMOUNT OF DEBENTURES, OR (B) THE CONSOLIDATED NET EARNINGS FOR THE
FISCAL YEAR, WITH THE PROVISO THAT IF THE LATTER BECAME APPLICABLE FOR
ANY YEAR, THE FIXED FIGURE WAS TO BE CUMULATIVE. 

NAD HAS NOT BEEN IN DEFAULT IN THE PERFORMANCE OF THESE INDENTURE
OBLIGATIONS.  AS OF APRIL 30, 1967, ONLY $581,300 OF THE ORIGINAL
$2,352,950 OF DEBENTURES REMAINED OUTSTANDING.  THE REST HAD BEEN
REDEEMED OR OTHERWISE REPURCHASED OR RETIRED.  APP. 29. 

/4/  TABLE OMITTED. 

/5/  THE DEDUCTIONS FOR DISCOUNT TAKEN BY NAD ON ITS RETURNS FOR ITS
FISCAL YEAR 1958 THROUGH 1967 WERE:  TABLE OMITTED. 

/6/  SEE H. FINNEY & H. MILLER, PRINCIPLES OF ACCOUNTING,
INTERMEDIATE 263 (6TH ED. 1965); W. MEIGS ET AL., INTERMEDIATE
ACCOUNTING 683 - 688 (3D ED. 1974). 

/7/  ARTICLE 544 OF REGULATIONS 45, PROMULGATED UNDER THE REVENUE
ACT OF 1918; ART. 545 (3)(A) OF REGULATIONS 62, 65, AND 69,
PROMULGATED, RESPECTIVELY, UNDER THE REVENUE ACTS OF 1921, 1924, AND
1926; ART. 68 (3)(A) OF REGULATIONS 74 AND 77, PROMULGATED,
RESPECTIVELY, UNDER THE REVENUE ACTS OF 1928 AND 1932; ART. 22 (A) - 18
(3)(A) OF REGULATIONS 86, 94, AND 101, PROMULGATED RESPECTIVELY UNDER
THE REVENUE ACTS OF 1934, 1936, AND 1938; AND 29.22 (A) - 17 (3)(A) OF
REGULATIONS 111, PROMULGATED UNDER THE INTERNAL REVENUE CODE OF 1939. 
SEE MONTANA POWER CO. V. UNITED STATES, 232 F.2D 541, 546 - 548 (CA3),
CERT. DENIED, 352 U.S. 843 (1956). 

UNDER THE 1954 CODE, THE RELEVANT PROVISION FIRST APPEARED IN THE
INCOME TAX REGULATIONS AS 1.61 - 12 (C)(3) CONCERNING GROSS INCOME: 

"IF BONDS ARE ISSUED BY A CORPORATION AT A DISCOUNT, THE NET AMOUNT
OF SUCH DISCOUNT IS DEDUCTIBLE AND SHOULD BE PRORATED OR AMORTIZED OVER
THE LIFE OF THE BONDS . . . ."  SINCE THE ISSUANCE OF T.D. 6984, 1969 -
1 C.B. 38, THIS SAME LANGUAGE HAS APPEARED UNDER THE INTEREST DEDUCTION
PROVISION IN 1.163 - 3 (A)(1). 

/8/  THE 1954 CODE'S 1232 (B)(2) WAS AMENDED BY THE INTEREST
EQUALIZATION TAX ACT, PUB. L. 88 - 563, 5, 78 STAT. 845, AND BY THE TAX
REFORM ACT OF 1969, PUB. L. 91 - 172, 413 (B), 83 STAT. 611, APPLICABLE
TO BONDS AND OTHER EVIDENCES OF INDEBTEDNESS ISSUED AFTER MAY 27,
1969.  AS SO AMENDED, THE STATUTE, IN PERTINENT PART READS: 

"IN THE CASE OF A BOND OR OTHER EVIDENCE OF INDEBTEDNESS . . .
(OTHER THAN A BOND OR OTHER EVIDENCE OF INDEBTEDNESS . . . ISSUED
PURSUANT TO A PLAN OF REORGANIZATION WITHIN THE MEANING OF SECTION 368
(A) (1) . . .), WHICH IS ISSUED FOR PROPERTY AND WHICH-- 

"(A) IS PART OF AN ISSUE A PORTION OF WHICH IS TRADED ON AN
ESTABLISHED SECURITIES MARKET, OR 

"(B) IS ISSUED FOR STOCK OR SECURITIES WHICH ARE TRADED ON AN
ESTABLISHED SECURITIES MARKET, "THE ISSUE PRICE OF SUCH BOND OR OTHER
EVIDENCE OF INDEBTEDNESS . . . SHALL BE THE FAIR MARKET VALUE OF SUCH
PROPERTY.  EXCEPT IN CASES TO WHICH THE PRECEDING SENTENCE APPLIES, THE
ISSUE PRICE OF A BOND OR OTHER EVIDENCE OF INDEBTEDNESS . . . WHICH IS
ISSUED FOR PROPERTY (OTHER THAN MONEY) SHALL BE THE STATED REDEMPTION
PRICE AT MATURITY."  INASMUCH AS NAD'S DEBENTURES WERE ISSUED IN 1957,
THE 1969 AMENDMENT IS NOT APPLICABLE TO THE TRANSACTION. 

/9/  IT WAS UNSETTLED FOR SOME TIME WHETHER INCOME REALIZED BY AN
OWNER OF AN ORIGINAL DISCOUNT OBLIGATION WAS TAXABLE TO THAT OWNER AS
ORDINARY INCOME OR AS CAPITAL GAIN.  IN COMMISSIONER V. CAULKINS, 144
F.2D 482 (CA6 1944), DECIDED UNDER THE 1939 CODE, IT WAS HELD THAT GAIN
UPON SURRENDER OF AN INSTALLMENT CERTIFICATE ISSUED AT A DISCOUNT WAS
CAPITAL GAIN.  OTHER CIRCUITS, HOWEVER, THEREAFTER HELD THAT INCOME
ATTRIBUTABLE TO THE DISCOUNT WAS ORDINARY INCOME.  SEE, FOR EXAMPLE,
REAL ESTATE INVESTMENT TRUST V. COMMISSIONER, 334 F.2D 986 (CA1 1964),
CERT. DENIED, 381 U.S. 911 (1965); DIXON V. UNITED STATES, 333 F.2D
1016 (CA2 1964), AFF'D, 381 U.S. 68 (1965); UNITED STATES V. HARRISON,
304 F.2D 835 (CA5 1962), CERT. DENIED, 372 U.S. 934 (1963); ROSEN V.
UNITED STATES, 288 F.2D 658 (1961); COMMISSIONEMORGAN, 272 F.2D 936
(CA9 1959). 

THE ISSUE WAS SETTLED BY THE DECISION IN UNITED STATES V. MIDLAND
ROSS CORP., 381 U.S. 54 (1965), WHEN THE COURT HELD THAT EARNED
ORIGINAL ISSUE DISCOUNT IS NOT ENTITLED TO CAPITAL GAIN TREATMENT UNDER
THE 1939 CODE. 

CONGRESS, IN ENACTING 1232 OF THE 1954 CODE, ADOPTED A DIFFERENT
APPROACH TO EARNED ORIGINAL ISSUE DISCOUNT, REFERRING TO IT AS "A FORM
OF INTEREST INCOME" IN S. REP. NO 1622, 83D CONG., 2D SESS., 112
(1954).  UNDER 1232 (A)(2), GAIN FROM THE SALE OR REDEMPTION OF A
CORPORATE OBLIGATION ISSUED AT A DISCOUNT IS TAXED AS THE GAIN FROM THE
SALE OF A NONCAPITAL ASSET.  IF THE OBLIGATION IS HELD BY THE ORIGINAL
PURCHASER TO MATURITY, THE ENTIRE AMOUNT OF THE DISCOUNT IS SO TAXED,
BUT IF IT IS SOLD OR REDEEMED BEFORE MATURITY, ONLY THE PORTION ACCRUED
UP TO THE DATE OF SALE OR REDEMPTION IS SO TAXED.  SEE DE KOSMIAN,
ORIGINAL ISSUE DISCOUNT, 22 TAX LAWYER 339, 340 - 347 (1969); ZAFFT,
DISCOUNT BONDS--ORDINARY INCOME OR CAPITAL GAIN?, 11 TAX L.REV.  51
(1955). 

/10/  JUDGE KALODNER, JOINED BY JUDGE STALEY, OBSERVED, "THE
AMERICAN SMELTING DECISION IN THAT RESPECT MUST BE LIMITED TO ITS
FACTS."  232 F.2D, AT 546. 

/11/  IN OLD MISSION PORTLAND CEMENT CO. V. HELVERING, 293 U.S. 289
(1934), WHERE ORIGINAL ISSUE DISCOUNT BONDS WERE HELD BY AN AFFILIATE
OF THE ISSUING CORPORATION, THE COURT CONCLUDED THAT A DEDUCTION FOR
THE DISCOUNT WAS NOT AVAILABLE WHEN THE AFFILIATED CORPORATIONS FILED A
CONSOLIDATED INCOME TAX RETURN.  THE SITUATION WAS RELATED TO THAT OF A
SINGLE TAXPAYER PURCHASING ITS OWN BONDS PRIOR TO MATURITY.  BECAUSE,
VIEWING THE AFFILIATES AS A SINGLE TAXPAYING ENTITY, THERE WAS NO
OBLIGATION TO PAY THE FACE AMOUNT AT MATURITY, THE ISSUER "COULD NOT
AFTERWARDS DEDUCT, FROM GROSS INCOME, THE AMORTIZED DISCOUNT ON THE
BONDS, IN ANTICIPATION OF THEIR PAYMENT AT MATURITY."  ID., AT 292. 
HERE NAD INCURRED NO ADDITIONAL OBLIGATION BECAUSE OF THE SUBSTITUTION
OF ITS DEBENTURES FOR ITS PREFERRED. 

/12/  WHILE IN NO SENSE IMPLYING THAT THE SECURITIES WERE
EQUIVALENT, THE COURT IN THE PAST HAS NOTED THAT THE INVESTMENT
DIFFERENCE BETWEEN PREFERRED SHARES AND UNSECURED DEBENTURES CAN BE OF
SLIGHT DEGREE, AND IS FURTHER DIMINISHED WHEN, AS HERE, THE DEBENTURES
ARE SUBORDINATED.  JOHN KELLEY CO. V. COMMISSIONER, 326 U.S. 521
(1946). 

/13/  "WE SIMPLY CANNOT OVERLOOK THE COMPLETE LACK OF SUBSTANCE TO
THE CLAIMS OF THE CORPORATION HERE.  ITS ASSETS WERE NOT DIMINISHED BY
A PENNY, EITHER WHEN THE DEBENTURES WERE ISSUED TO THE STOCKHOLDERS OR
WHERE THE FACE AMOUNT OF THE BONDS WAS ASSUMED BY FUQUA (THUS,
PRESUMABLY REDUCING THE AMOUNT OF THE PURCHASE PRICE).  THE COMPANY
PAID NOTHING MORE TO THE BOND-HOLDERS AT ANY TIME THAN THE CURRENT
INTEREST.  IT DID NOT SELL THEM TO ANYONE AT A DISCOUNT.  IT ISSUED
THEM EITHER AS DIVIDEND, PARTIAL DISTRIBUTION OF EARNED INCOME AND
CAPITAL, OR AS 'BOOT' IN A TAX-FREE REORGANIZATION.  IT CANNOT DEDUCT
AS INTEREST WHAT IT HAS NOT PAID OUT OR BECOME LIABLE TO PAY OUT TO
ANYBODY."  469 F.2D, AT 344 N. 11. 

MR. JUSTICE STEWART CONCURS IN THE JUDGMENT AND IN PARTS I, II, AND
III OF THE COURT'S OPINION. 

STUART A. SMITH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL CRAMPTON,
MEYER ROTHWACKS, AND ERNEST J. BROWN. 

CHARLES WHITE HESS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS RONALD B. STANG. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY THOMAS E.
TYRE FOR CITIES SERVICE CO.; BY ROBERT T. MOLLOY, JAMES OGDEN, MARK M.
HENNELLY, DONALD E. ENGLE, GEORGE E. BAILEY, ROBERT E. SIMPSON, AND
JAMES L. BORING FOR ST. LOUIS SAN FRANCISCO RAILWAY CO. ET AL.; BY ALAN
D. BERLIN, WALTER J. ROCKLER, AND JULIUS M. GREISMAN FOR NORTON SIMON,
INC.; AND BY PAUL PETERSON FOR FED-MART CORP.
..END :




EISEN V. CARLISLE & JACQUELIN, 417 U.S. 156 


       EISEN V. CARLISLE & JACQUELIN ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

      SECOND CIRCUIT

        NO. 73 - 203.  ARGUED FEBRUARY 25, 1974--DECIDED MAY 28,

           1974; 479 F.2D 1005, VACATED AND REMANDED. 


    PETITIONER BROUGHT A CLASS ACTION UNDER FED. RULE CIV. PROC. 23

  ON BEHALF OF HIMSELF AND ALL ODD-LOT TRADERS ON THE NEW YORK

  STOCK EXCHANGE FOR A CERTAIN FOUR-YEAR PERIOD, CHARGING

  RESPONDENT BROKERAGE FIRMS, WHICH HANDLED 99% OF THE EXCHANGE'S

  ODD-LOT BUSINESS, AND RESPONDENT EXCHANGE WITH VIOLATING THE

  ANTITRUST AND SECURITIES LAWS.  THERE FOLLOWED A SERIES OF

  DECISIONS BY THE DISTRICT COURT AND THE COURT OF APPEALS.  THE

  DISTRICT COURT ULTIMATELY DECIDED THAT THE SUIT COULD BE

  MAINTAINED AS A CLASS ACTION, AND, AFTER FINDING THAT SOME TWO

  AND A QUARTER MILLION MEMBERS OF THE PROSPECTIVE CLASS COULD BE

  IDENTIFIED BY NAME AND ADDRESS WITH REASONABLE EFFORT AND THAT IT

  WOULD COST $225,000 TO SEND INDIVIDUAL NOTICE TO ALL OF THEM,

  PROPOSED A NOTIFICATION SCHEME PROVIDING FOR INDIVIDUAL NOTICE TO

  ONLY A LIMITED NUMBER OF PROSPECTIVE CLASS MEMBERS AND NOTICE BY

  PUBLICATION TO THE REMAINDER.  THE DISTRICT COURT THEN HELD A

  PRELIMINARY HEARING ON THE MERITS, AND AFTER FINDING THAT

  PETITIONER WAS "MORE THAN LIKELY" TO PREVAIL AT TRIAL, RULED THAT

  RESPONDENTS SHOULD BEAR 90% OF THE COSTS OF THE NOTIFICATION

  SCHEME.  THE COURT OF APPEALS REVERSED AND ORDERED THE SUIT

  DISMISSED AS A CLASS ACTION, DISAPPROVING THE DISTRICT COURT'S

 PARTIAL RELIANCE ON PUBLICATION NOTICE.  THE COURT OF APPEALS

  HELD THAT RULE 23 (C)(2) REQUIRED INDIVIDUAL NOTICE TO ALL

  INDENTIFIABLE CLASS MEMBERS; THAT THE DISTRICT COURT HAD NO

  AUTHORITY TO HOLD A PRELIMINARY HEARING ON MERITS FOR THE PURPOSE

  OF ALLOCATING NOTICE COSTS; THAT THE ENTIRE NOTICE EXPENSE SHOULD

  FALL ON PETITIONER; AND THAT THE PROPOSED CLASS ACTION WAS

  UNMANAGEABLE UNDER RULE 23 (B)(3)(D).  PETITIONER CONTENDS THAT

  THE COURT OF APPEALS HAD NO JURISDICTION TO REVIEW THE DISTRICT

  COURT'S ORDERS, AND FURTHER, THAT THE COURT OF APPEALS DECIDED

THE ABOVE ISSUES INCORRECTLY.  HELD: 

     1.  THE DISTRICT COURT'S RESOLUTION OF THE NOTICE PROBLEMS

  CONSTITUTED A "FINAL" DECISION WITHIN THE MEANING OF 28 U.S.C.

  1291 AND WAS THEREFORE APPEALABLE AS OF RIGHT UNDER THAT

  SECTION.  PP. 169 - 172. 

     (A) SECTION 1291 DOES NOT LIMIT APPELLATE REVIEW TO "THOSE

  FINAL JUDGMENTS WHICH TERMINATE AN ACTION . . . ," BUT RATHER THE

  REQUIREMENT OF FINALITY IS TO BE GIVEN A "PRACTICAL RATHER THAN A

  TECHNICAL CONSTRUCTION."  COHEN V. BENEFICIAL LOAN CORP., 337

  U.S. 541, 545 - 546.  PP. 170 - 172. 

     (B) THE DISTRICT COURT'S DECISION THAT RESPONDENTS COULD

  LAWFULLY BE REQUIRED TO BEAR THE COSTS OF NOTICE INVOLVED A

  COLLATERAL MATTER UNRELATED TO THE MERITS OF PETITIONER'S CLAIMS

  AND WAS "A FINAL DISPOSITION OF A CLAIMED RIGHT WHICH IS NOT AN

  INGREDIENT OF THE CAUSE OF ACTION AND DOES NOT REQUIRE

 CONSIDERATION WITH IT," COHEN, SUPRA, AT 546 - 547.  P. 172. 

     2.  THE DISTRICT COURT'S RESOLUTION OF THE NOTICE PROBLEMS

  FAILED TO COMPLY WITH THE NOTICE REQUIREMENT OF RULE 23 (C)(2). 

  PP. 173 - 177. 

     (A) THE EXPRESS LANGUAGE AND INTENT OF RULE 23(C)(2) LEAVE NO

  DOUBT THAT INDIVIDUAL NOTICE MUST BE SENT TO ALL CLASS MEMBERS

WHO CAN BE IDENTIFIED THROUGH REASONABLE EFFORT.  HERE THERE WAS

  NOTHING TO SHOW THAT INDIVIDUAL NOTICE COULD NOT BE MAILED TO

  EACH OF THE TWO AND A QUARTER MILLION CLASS MEMBERS WHOSE NAMES

  AND ADDRESSES WERE EASILY ASCERTAINABLE, AND FOR THESE CLASS

  MEMBERS INDIVIDUAL NOTICE WAS CLEARLY THE "BEST NOTICE

  PRACTICABLE"  WITHIN THE MEANING OF RULE 23 (C)(2).  PP. 173 -

  175. 

     (B) THE FACTS THAT THE COST OF SENDING INDIVIDUAL NOTICES
WOULD

  BE PROHIBITIVELY HIGH TO PETITIONER, WHO HAS ONLY A $70 STAKE IN

  THE MATTER, OR THAT INDIVIDUAL NOTICE MIGHT BE UNNECESSARY

  BECAUSE NO PROSPECTIVE CLASS MEMBER HAS A LARGE ENOUGH STAKE TO

  JUSTIFY SEPARATE LITIGATION OF HIS INDIVIDUAL CLAIM, DO NOT

  DISPENSE WITH THE INDIVIDUAL-NOTICE REQUIREMENT, SINCE INDIVIDUAL

  NOTICE TO IDENTIFIABLE CLASS MEMBERS IS NOT A DISCRETIONARY

  CONSIDERATION TO BE WAIVED IN A PARTICULAR CASE BUT AN

  UNAMBIGUOUS REQUIREMENT OF RULE 23.  PP. 175 - 176. 

     (C) ADEQUATE REPRESENTATION IN ITSELF DOES NOT SATISFY RULE 23

  (C)(2), SINCE THE RULE SPEAKS TO NOTICE AS WELL AS TO ADEQUACY OF

  REPRESENTATION AND REQUIRES THAT BOTH BE PROVIDED.  OTHERWISE NO

  NOTICE AT ALL, PUBLISHED OR OTHERWISE, WOULD BE REQUIRED IN THIS

  CASE.  PP. 176 - 177. 

     3.  PETITIONER MUST BEAR THE COST OF NOTICE TO THE MEMBERS OF

  HIS CLASS, AND IT WAS IMPROPER FOR THE DISTRICT COURT TO IMPOSE

  PART OF THE COST ON RESPONDENTS.  PP. 177 - 179. 

     (A) THERE IS NOTHING IN EITHER THE LANGUAGE OR HISTORY OF RULE

  23 THAT GIVES A COURT ANY AUTHORITY TO CONDUCT A PRELIMINARY

  INQUIRY INTO THE MERITS OF A SUIT IN ORDER TO DETERMINE WHETHER

  IT MAY BE MAINTAINED AS A CLASS ACTION, AND, INDEED, SUCH A

  PROCEDURE CONTRAVENES THE RULE BY ALLOWING A REPRESENTATIVE

  PLAINTIFF TO SECURE THE BENEFITS OF A CLASS ACTION WITHOUT FIRST

  SATISFYING THE REQUIREMENTS OF THE RULE.  PP. 177 - 178. 

     (B) A PRELIMINARY DETERMINATION OF THE MERITS MAY
SUBSTANTIALLY

  PREJUDICE A DEFENDANT, SINCE IT IS UNACCOMPANIED BY THE

  TRADITIONAL RULES AND PROCEDURES APPLICABLE TO CIVIL TRIALS.  P.

  178. 

     (C) WHERE, AS HERE, THE RELATIONSHIP BETWEEN THE PARTIES IS

TRULY ADVERSARY, THE PLAINTIFF MUST PAY FOR THE COST OF NOTICE AS

  PART OF THE ORDINARY BURDEN OR FINANCING HIS OWN SUIT.  PP. 178 -

  179. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ.,

  JOINED.  DOUGLAS, J., FILED AN OPINION DISSENTING IN PART, IN

  WHICH BRENNAN AND MARSHALL, JJ., JOINED, POST, P. 179. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

ON MAY 2, 1966, PETITIONER FILED A CLASS ACTION ON BEHALF OF HIMSELF
AND ALL OTHER ODD-LOT /1/  TRADERS ON THE NEW YORK STOCK EXCHANGE (THE
EXCHANGE).  THE COMPLAINT CHARGED RESPONDENTS WITH VIOLATIONS OF THE
ANTI-TRUST AND SECURITIES LAWS AND DEMANDED DAMAGES FOR PETITIONER AND
HIS CLASS.  EIGHT YEARS HAVE ELAPSED, BUT THERE HAS BEEN NO TRIAL ON
THE MERITS OF THESE CLAIMS.  BOTH THE PARTIES AND THE COURTS ARE STILL
WRESTLING WITH THE COMPLEX QUESTIONS SURROUNDING PETITIONER'S ATTEMPT
TO MAINTAIN HIS SUIT AS A CLASS ACTION UNDER FED. RULE CIV. PROC. 23. 
WE GRANTED CERTIORARI TO RESOLVE SOME OF THESE DIFFICULTIES.  414 U.S.
908 (1973). 

        I 

PETITIONER BROUGHT THIS CLASS ACTION IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.  ORIGINALLY, HE SUED ON
BEHALF OF ALL BUYERS AND SELLERS OF ODD LOTS ON THE EXCHANGE, BUT
SUBSEQUENTLY THE CLASS WAS LIMITED TO THOSE WHO TRADED IN ODD LOTS
DURING THE PERIOD FROM MAY 1, 1962, THROUGH JUNE 30, 1966.  52 F.R.D.
253, 261 (1971).  THROUGHOUT THIS PERIOD ODD-LOT TRADING WAS NOT PART
OF THE EXCHANGE'S REGULAR AUCTION MARKET BUT WAS HANDLED EXCLUSIVELY BY
SPECIAL ODD-LOT DEALERS, WHO BOUGHT AND SOLD FOR THEIR OWN ACCOUNTS AS
PRINCIPALS.  RESPONDENT BROKERAGE FIRMS CARLISLE & JACQUELIN AND
DECOPPET & DOREMUS TOGETHER HANDLED 99% OF THE EXCHANGE'S ODD-LOT
BUSINESS.  S.E.C., REPORT OF APECIAL STUDY OF SECURITIES MARKETS, H.R.
DOC. NO. 95, PT. 2, 88TH CONG., 1ST SESS., 172 (1963).  THEY WERE
COMPENSATED BY THE ODD-LOT DIFFERENTIAL, A SURCHARGE IMPOSED ON THE ODD
LOT INVESTOR IN ADDITION TO THE STANDARD BROKERAGE COMMISSION
APPLICABLE TO ROUND-LOT TRANSACTIONS.  FOR THE PERIOD IN QUESTION THE
DIFFERENTIAL WAS 1/8 OF A POINT (12 1/2[) PER SHARE ON STOCKS TRADING
BELOW $40 PER SHARE AND 1/4 OF A POINT (25[) PER SHARE ON STOCKS
TRADING AT OR ABOVE $40 PER SHARE.  /2/ 

PETITIONER CHARGED THAT RESPONDENT BROKERAGE FIRMS HAD MONOPOLIZED
ODD-LOT TRADING AND SET THE DIFFERENTIAL AT AN EXCESSIVE LEVEL IN
VIOLATION OF 1 AND 2 OF THE SHERMAN ACT, 15 U.S.C. 1 AND 2, AND HE
DEMANDED TREBLE DAMAGES FOR THE AMOUNT OF THE OVERCHARGE.  PETITIONER
ALSO DEMANDED UNSPECIFIED MONEY DAMAGES FROM THE EXCHANGE FOR ITS
ALLEGED FAILURE TO REGULATE THE DIFFERENTIAL FOR THE PROTECTION OF
INVESTORS IN VIOLATION OF 6 AND 19 OF THE SECURITIES EXCHANGE ACT OF
1934, 15 U.S.C. 78F AND 78S.  FINALLY, HE REQUESTED ATTORNEYS'  FEES
AND INJUNCTIVE PROHIBITION OF FUTURE EXCESSIVE CHARGES. 

A CRITICAL FACT IN THIS LITIGATION IS THAT PETITIONER'S INDIVIDUAL
STAKE IN THE DAMAGE AWARD HE SEEKS IS ONLY $70.  NO COMPETENT ATTORNEY
WOULD UNDERTAKE THIS COMPLEX ANTITRUST ACTION TO RECOVER SO
INCONSEQUENTIAL AN AMOUNT.  ECONOMIC REALITY DICTATES THAT PETITIONER'S
SUIT PROCEED AS A CLASS ACTION OR NOT AT ALL.  OPPOSING COUNSEL HAVE
THEREFORE ENGAGED IN PROLONGED COMBAT OVER THE VARIOUS REQUIREMENTS OF
RULE 23.  THE RESULT HAS BEEN AN EXCEEDINGLY COMPLICATED SERIES OF
DECISIONS BY BOTH THE DISTRICT COURT AND THE COURT OF APPEALS FOR THE
SECOND CIRCUIT.  TO UNDERSTAND THE LABYRINTHIAN HISTORY OF THIS
LITIGATION, A PRELIMINARY OVERVIEW OF THE DECISIONS MAY PROVE USEFUL. 

IN THE BEGINNING, THE DISTRICT COURT DETERMINED THAT PETITIONER'S
SUIT WAS NOT MAINTAINABLE AS A CLASS ACTION.  ON APPEAL, THE COURT OF
APPEALS ISSUED TWO DECISIONS KNOWN POPULARLY AS EISEN I AND EISEN II.
THE FIRST HELD THAT THE DISTRICT COURT'S DECISION WAS A FINAL ORDER AND
THUS APPEALABLE.  IN THE SECOND THE COURT OF APPEALS INTIMATED THAT
PETITIONER'S SUIT COULD SATISFY THE REQUIREMENTS OF RULE 23, BUT IT
REMANDED THE CASE TO PERMIT THE DISTRICT COURT TO CONSIDER THE MATTER
FURTHER.  AFTER CONDUCTING SEVERAL EVIDENTIARY HEARINGS ON REMAND, THE
DISTRICT COURT DECIDED THAT THE SUIT COULD BE MAINTAINED AS A CLASS
ACTION AND ENTERED ORDERS INTENDED TO FULFILL THE NOTICE REQUIREMENTS
OF RULE 23.  ONCE AGAIN, THE CASE WAS APPEALED.  THE COURT OF APPEALS
THEN ISSUED ITS DECISION IN EISEN III AND ENDED THE TRILOGY BY DENYING
CLASS ACTION STATUS TO PETITIONER'S SUIT.  WE NOW REVIEW THESE
DEVELOPMENTS IN MORE DETAIL. 

EISEN I 

AS WE HAVE SEEN, PETITIONER BEGAN THIS ACTION IN MAY 1966.  IN
SEPTEMBER OF THAT YEAR THE DISTRICT COURT DISMISSED THE SUIT AS A CLASS
ACTION.  41 F.R.D. 147.  FOLLOWING DENIAL OF HIS MOTION FOR
INTERLOCUTORY REVIEW UNDER 28 U.S.C. 1292(B), PETITIONER TOOK AN APPEAL
AS OF RIGHT UNDER 1291.  RESPONDENTS THEN MOVED TO DISMISS ON THE
GROUND THAT THE ORDER APPEALED FROM WAS NOT FINAL.  IN EISEN I, THE
COURT OF APPEALS HELD THAT THE DENIAL OF CLASS ACTION STATUS IN THIS
CASE WAS APPEALABLE AS A FINAL ORDER UNDER 1291.  370 F.2D 119 (1966),
CERT. DENIED, 386 U.S. 1035 (1967).  THIS WAS SO BECAUSE, AS A
PRACTICAL MATTER, THE DISMISSAL OF THE CLASS ACTION ASPECT OF
PETITIONER'S SUIT WAS A "DEATH KNELL" FOR THE ENTIRE ACTION.  THE COURT
THOUGHT THIS CONSEQUENCE RENDERED THE ORDER DISMISSING THE CLASS ACTION
APPEALABLE UNDER COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541, 546
(1949). 

        EISEN II 

NEARLY 18 MONTHS LATER THE COURT OF APPEALS REVERSED THE DISMISSAL
OF THE CLASS ACTION IN A DECISION KNOWN AS EISEN II.  391 F.2D 555
(1968).  IN REACHING THIS RESULT THE COURT UNDERTOOK AN EXHAUSTIVE BUT
ULTIMATELY INCONCLUSIVE ANALYSIS OF RULE 23.  SUBDIVISION (A) OF THE
RULE SETS FORTH FOUR PREREQUISITES TO THE MAINTENANCE OF ANY SUIT AS A
CLASS ACTION:  "(1) THE CLASS IS SO NUMEROUS THAT JOINDER OF ALL
MEMBERS IS IMPRACTICABLE, (2) THERE ARE QUESTIONS OF LAW OR FACT COMMON
TO THE CLASS, (3) THE CLAIMS OR DEFENSES OF THE REPRESENTATIVE PARTIES
ARE TYPICAL OF THE CLAIMS OR DEFENSES OF THE CLASS, AND (4) THE
REPRESENTATIVE PARTIES WILL FAIRLY AND ADEQUATELY PROTECT THE INTERESTS
OF THE CLASS."  THE DISTRICT COURT HAD EXPERIENCED LITTLE DIFFICULTY IN
FINDING THAT PETITIONER SATISFIED THE FIRST THREE PREREQUISITES BUT HAD
CONCLUDED THAT PETITIONER MIGHT NOT "FAIRLY AND ADEQUATELY PROTECT THE
INTERESTS OF THE CLASS" AS REQUIRED BY RULE 23 (A)(4).  THE COURT OF
APPEALS INDICATED ITS DISAGREEMENT WITH THE REASONING BEHIND THE LATTER
CONCLUSION AND DIRECTED THE DISTRICT COURT TO RECONSIDER THE POINT. 

IN ADDITION TO MEETING THE FOUR CONJUNCTIVE REQUIREMENTS OF 23 (A),
A CLASS ACTION MUST ALSO QUALIFY UNDER ONE OF THE THREE SUBDIVISIONS OF
23 (B).  /3/  PETITIONER ARGUED THAT THE SUIT WAS MAINTAINABLE AS A
CLASS ACTION UNDER ALL THREE SUBDIVISIONS.  THE COURT OF APPEALS HELD
THE FIRST TWO SUBDIVISIONS INAPPLICABLE TO THIS SUIT /4/  AND THEREFORE
TURNED ITS ATTENTION TO THE THIRD SUBDIVISION, (B)(3). 

THAT SUBDIVISION REQUIRES A COURT TO DETERMINE WHETHER "QUESTIONS OF
LAW OR FACT COMMON TO THE MEMBERS OF THE CLASS PREDOMINATE OVER ANY
QUESTIONS AFFECTING ONLY INDIVIDUAL MEMBERS" AND WHETHER "A CLASS
ACTION IS SUPERIOR TO OTHER AVAILABLE METHODS FOR THE FAIR AND
EFFICIENT ADJUDICATION OF THE CONTROVERSY."  MORE SPECIFICALLY, IT
IDENTIFIES FOUR FACTORS RELEVANT TO THESE INQUIRIES.  AFTER A DETAILED
REVIEW OF THESE PROVISIONS, THE COURT OF APPEALS CONCLUDED THAT THE
ONLY POTENTIAL BARRIER TO MAINTENANCE OF THIS SUIT AS A CLASS ACTION
WAS THE RULE 23 (B)(3)(D) DIRECTIVE THAT A COURT EVALUATE "THE
DIFFICULTIES LIKELY TO BE ENCOUNTERED IN THE MANAGEMENT OF A CLASS
ACTION."  COMMONLY REFERRED TO AS "MANAGEABILITY," THIS CONSIDERATION
ENCOMPASSES THE WHOLE RANGE OF PRACTICAL PROBLEMS THAT MAY RENDER THE
CLASS ACTION FORMAT INAPPROPRIATE FOR A PARTICULAR SUIT.  WITH
REFERENCE TO THIS LITIGATION, THE COURT OF APPEALS NOTED THAT THE
DIFFICULTIES OF DISTRIBUTING ANY ULTIMATE RECOVERY TO THE CLASS MEMBERS
WOULD BE FORMIDABLE, THOUGH NOT NECESSARILY INSUPERABLE, AND COMMENTED
THAT IT WAS "RELUCTANT TO BENEFIT ANYONE BUT THE LAWYERS WHO BRING
THEM."  391 F.2D, AT 567.  THE COURT THEREFORE DIRECTED THE DISTRICT
COURT TO CONDUCT "A FURTHER INQUIRY . . . IN ORDER TO CONSIDER THE
MECHANICS INVOLVED IN THE ADMINISTRATION OF THE PRESENT ACTION." 
IBID. 

FINALLY, THE COURT OF APPEALS TURNED TO THE MOST IMPOSING OBSTACLE
TO THIS CLASS ACTION--THE NOTICE REQUIREMENT OF RULE 23 (C)(2).  THE
DISTRICT COURT HAD HELD THAT BOTH THE RULE AND THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT REQUIRED INDIVIDUAL NOTICE TO ALL CLASS MEMBERS
WHO COULD BE IDENTIFIED.  41 F.R.D., AT 151.  PETITIONER OBJECTED THAT
MAILED NOTICE TO THE ENTIRE CLASS WOULD BE PROHIBITIVELY EXPENSIVE AND
ARGUED THAT SOME FORM OF PUBLICATION NOTICE WOULD SUFFICE.  THE COURT
OF APPEALS DECLINED TO SETTLE THIS ISSUE, NOTING THAT "(ON THE RECORD
BEFORE US WE CANNOT ARRIVE AT ANY RATIONAL AND SATISFACTORY CONCLUSION
ON THE PROPRIETY OF RESORTING TO SOME FORM OF PUBLICATION AS A MEANS OF
GIVING THE NECESSARY NOTICE TO ALL MEMBERS OF THE CLASS ON BEHALF OF
WHOM THE ACTION IS STATED TO BE COMMENCED AND MAINTAINED."  391 F.2D,
AT 569. 

THE OUTCOME OF EISEN II WAS A REMAND FOR AN EVIDENTIARY HEARING ON
THE QUESTIONS OF NOTICE, MANAGEABILITY, ADEQUACY OF REPRESENTATION, AND
"ANY OTHER MATTERS WHICH THE DISTRICT COURT MAY CONSIDER PERTINENT AND
PROPER."  ID., AT 570.  AND IN A RULING THAT AROUSED LATER CONTROVERSY,
THE COURT OF APPEALS EXPRESSLY PURPORTED TO RETAIN APPELLATE
JURISDICTION WHILE THE CASE WAS HEARD ON REMAND. 

        EISEN III 

AFTER IT HELD THE EVIDENTIARY HEARING ON REMAND, WHICH TOGETHER WITH
AFFIDAVITS AND STIPULATIONS PROVIDED THE BASIS FOR EXTENSIVE FINDINGS
OF FACT, THE DISTRICT COURT ISSUED AN OPINION AND ORDER HOLDING THE
SUIT MAINTAINABLE AS A CLASS ACTION.  52 F.R.D. 253 (1971).  THE COURT
FIRST NOTED THAT PETITIONER SATISFIED THE CRITERIA IDENTIFIED BY THE
COURT OF APPEALS FOR DETERMINING ADEQUACY OF REPRESENTATION UNDER RULE
23 (A) (4).  THEN IT TURNED TO THE MORE DIFFICULT QUESTION OF
MANAGEABILITY.  UNDER THIS GENERAL RUBRIC THE COURT DEALT WITH PROBLEMS
OF THE COMPUTATION OF DAMAGES, THE MECHANICS OF ADMINISTERING THIS SUIT
AS A CLASS ACTION, AND THE DISTRUBTION OF ANY EVENTUAL RECOVERY.  THE
LAST NAMED PROBLEM HAD MOST TROUBLED THE COURT OF APPEALS, PROMPTING
ITS REMARK THAT IF "CLASS MEMBERS ARE NOT LIKELY EVER TO SHARE IN AN
EVENTUAL JUDGMENT, WE WOULD PROBABLY NOT PERMIT THE CLASS ACTION TO
CONTINUE."  391 F.2D, AT 567.  THE DISTRICT COURT ATTEMPTED TO RESOLVE
THIS DIFFICULTY BY EMBRACING THE IDEA OF A "FLUID CLASS" RECOVERY
WHEREBY DAMAGES WOULD BE DISTRIBUTED TO FUTURE ODD-LOT TRADERS RATHER
THAN TO THE SPECIFIC CLASS MEMBERS WHO WERE ACTUALLY INJURED.  THE
COURT SUGGESTED THAT "A FUND EQUIVALENT TO THE AMOUNT OF UNCLAIMED
DAMAGES MIGHT BE ESTABLISHED AND THE ODD-LOT DIFFERENTIAL REDUCED IN AN
AMOUNT DETERMINED REASONABLE BY THE COURT UNTIL SUCH TIME AS THE FUND
IS DEPLETED."  52 F.R.D., AT 265.  THE NEED TO RESORT TO THIS EXPEDIENT
OF RECOVERY BY THE "NEXT BEST CLASS" AROSE FROM THE PROHIBITIVELY HIGH
COST OF COMPUTING AND AWARDING MULTITUDINOUS SMALL DAMAGES CLAIMS ON AN
INDIVIDUAL BASIS. 

FINALLY, THE DISTRICT COURT TOOK UP THE PROBLEM OF NOTICE.  THE
COURT FOUND THAT THE PROSPECTIVE CLASS INCLUDED SOME SIX MILLION
INDIVIDUALS, INSTITUTIONS, AND INTERMEDIARIES OF VARIOUS SORTS; THAT
WITH REASONABLE EFFORT SOME TWO MILLION OF THESE ODD-LOT INVESTORS
COULD BE IDENTIFIED BY NAME AND ADDRESS; /5/  AND THAT THE NAMES AND
ADDRESSES OF AN ADDITIONAL 250,000 PERSONS WHO HAD PARTICIPATED IN
SPECIAL INVESTMENT PROGRAMS INVOLVING ODD-LOT TRADING /6/  COULD ALSO
BE IDENTIFIED WITH REASONABLE EFFORT.  USING THE THEN CURRENT FIRST
CLASS POSTAGE RATE OF SIX CENTS, THE COURT DETERMINED THAT STUFFING AND
MAILING EACH INDIVIDUAL NOTICE FORM WOULD COST 10 CENTS.  THUS
INDIVIDUAL NOTICE TO ALL IDENTIFIABLE CLASS MEMBERS WOULD COST
$225,000, /7/  AND ADDITIONAL EXPENSE WOULD BE INCURRED FOR SUITABLE
PUBLICATION NOTICE DESIGNED TO REACH THE OTHER FOUR MILLION CLASS
MEMBERS. 

THE DISTRICT COURT CONCLUDED, HOWEVER, THAT NEITHER RULE 23 (C) (2)
NOR THE DUE PROCESS CLAUSE REQUIRED SO SUBSTANTIAL AN EXPENDITURE AT
THE OUTSET OF THIS LITIGATION.  INSTEAD, IT PROPOSED A NOTIFICATION
SCHEME CONSISTING OF FOUR ELEMENTS:  (1) INDIVIDUAL NOTICE TO ALL
MEMBER FIRMS OF THE EXCHANGE AND TO COMMERCIAL BANKS WITH LARGE TRUST
DEPARTMENTS; (2) INDIVIDUAL NOTICE TO THE APPROXIMATELY 2,000
IDENTIFIABLE CLASS MEMBERS WITH 10 OR MORE ODD-LOT TRANSACTIONS DURING
THE RELEVANT PERIOD; (3) INDIVIDUAL NOTICE TO AN ADDITIONAL 5,000 CLASS
MEMBERS SELECTED AT RANDOM; AND (4) PROMINENT PUBLICATION NOTICE IN THE
WALL STREET JOURNAL AND IN OTHER NEWSPAPERS IN NEW YORK AND
CALIFORNIA.  THE COURT CALCULATED THAT THIS PACKAGE WOULD COST
APPROXIMATELY $21,720. 

THE ONLY ISSUE NOT RESOLVED BY THE DISTRICT COURT IN ITS FIRST
OPINION ON REMAND FROM EISEN II WAS WHO SHOULD BEAR THE COST OF
NOTICE.  BECAUSE PETITIONER UNDERSTANDABLY DECLINED TO PAY $21,720 IN
ORDER TO LITIGATE AN ACTION INVOLVING AN INDIVIDUAL STAKE OF ONLY $70,
THIS QUESTION PRESENTED SOMETHING OF A DILEMMA: 

"IF THE EXPENSE OF NOTICE IS PLACED UPON (PETITIONER), IT WOULD BE
THE END OF A POSSIBLY MERITORIOUS SUIT, FRUSTRATING BOTH THE POLICY
BEHIND PRIVATE ANTITRUST ACTIONS AND THE ADMONITION THAT THE NEW RULE
23 IS TO BE GIVEN A LIBERAL RATHER THAN A RESTRICTIVE INTERPRETATION,
EISEN II AT 563.  ON THE OTHER HAND, IF COSTS WERE ARBITRARILY PLACED
UPON (RESPONDENTS) AT THIS POINT, THE RESULT MIGHT BE THE IMPOSITION OF
AN UNFAIR BURDEN FOUNDED UPON A GROUNDLESS CLAIM.  IN ADDITION TO THE
PROBABILITY OF ENCOURAGING FRIVOLOUS CLASS ACTIONS, SUCH A STEP MIGHT
ALSO RESULT IN (RESPONDENTS') PASSING ON TO THEIR CUSTOMERS, INCLUDING
MANY OF THE CLASS MEMBERS IN THIS CASE, THE EXPENSES OF DEFENDING THESE
ACTIONS."  52 F.R.D., AT 269.  ANALOGIZING TO THE LAWS OF PRELIMINARY
INJUNCTIONS, THE COURT DECIDED TO IMPOSE THE NOTICE COST ON RESPONDENTS
IF PETITIONER COULD SHOW A STRONG LIKELIHOOD OF SUCCESS ON THE MERITS,
AND IT SCHEDULED A PRELIMINARY HEARING ON THE MERITS TO FACILITATE THIS
DETERMINATION.  AFTER THIS HEARING THE DISTRICT COURT ISSUED AN OPINION
AND ORDER RULING THAT PETITIONER WAS "MORE THAN LIKELY" TO PREVAIL AT
TRIAL AND THAT RESPONDENTS SHOULD BEAR 90% OF THE COST OF NOTICE, OR
$19,548.  54 F.R.D. 565, 567 (1972). 

RELYING ON THE PURPORTED RETENTION OF JURISDICTION BY THE COURT OF
APPEALS AFTER EISEN II, RESPONDENTS ON MAY 1, 1972, OBTAINED AN ORDER
DIRECTING THE CLERK OF THE DISTRICT COURT TO CERTIFY AND TRANSMIT THE
RECORD FOR APPELLATE REVIEW.  SUBSEQUENTLY, RESPONDENTS ALSO FILED A
NOTICE OF APPEAL UNDER 28 U.S.C. 1291.  PETITIONER'S MOTION TO DISMISS
ON THE GROUND THAT THE APPEAL HAD NOT BEEN TAKEN FROM A FINAL ORDER WAS
DENIED BY THE COURT OF APPEALS ON JUNE 29, 1972. 

ON MAY 1, 1973, THE COURT OF APPEALS ISSUED EISEN III.  479 F.2D
1005.  THE MAJORITY DISAPPROVED THE DISTRICT COURT'S PARTIAL RELIANCE
ON PUBLICATION NOTICE TO ALL IDENTIFIABLE CLASS MEMBERS.  THE MAJORITY
FURTHER RULED THAT THE DISTRICT COURT HAD NO AUTHORITY TO CONDUCT A
PRELIMINARY HEARING ON THE MERITS FOR THE PURPOSE OF ALLOCATING COSTS
AND THAT THE ENTIRE EXPENSE OF NOTICE NECESSARILY FELL ON PETITIONER AS
REPRESENTATIVE PLAINTIFF.  FINALLY, THE COURT OF APPEALS REJECTED THE
EXPEDIENT OF A FLUID-CLASS RECOVERY AND CONCLUDED THAT THE PROPOSED
CLASS ACTION WAS UNMANAGEABLE UNDER RULE 23 (B)(3)(D).  FOR ALL OF
THESE REASONS THE COURT OF APPEALS ORDERED THE SUIT DISMISSED AS A
CLASS ACTION.  ONE JUDGE CONCURRED IN THE RESULT SOLELY ON THE GROUND
THAT THE DISTRICT COURT HAD ERRED IN IMPOSING 90% OF THE NOTICE COSTS
ON RESPINDENTS.  PETITIONER'S REQUESTS FOE REHEARING AND REHEARING EN
BANC WERE DENIED.  479 F.2D, AT 1020. 

THUS, AFTER SIX AND ONE-HALF YEARS AND THREE PUBLISHED DECISIONS,
THE COURT OF APPEALS ENDORSED THE CONCLUSION REACHED BY THE DISTRICT
COURT IN ITS ORIGINAL ORDER IN 1966-THAT PETITIONER'S SUIT COULD NOT
PROCEED AS A CLASS ACTION.  IN ITS PROCEDURAL HISTROY, AT LEAST, THIS
LITIGATION HAS LIVED UP TO JUDGE LUMBARD'S CHARACTERIZATION OF IT AS A
"FRANKENSTEIN MONSTER POSING AS A CLASS ACTION."  EISEN II, 391 F.2D,
AT 572. 

        II 

AT THE OUTSET WE MUST DECIDE WHETHER THE COURT OF APPEALS IN EISEN
III HAD JURISDICTION TO REVIEW THE DISTRICT COURT'S ORDERS PERMITTING
THE SUIT TO PROCEED AS A CLASS ACTION AND ALLOCATING THE COST OF
NOTICE.  PETITIONER CONTENDS THAT IT DID NOT.  RESPONDENTS COUNTER BY
ASSERTING TWO INDEPENDENT BASES FOR APPELLATE JURISDICTION:  FIRST,
THAT THE ORDERS IN QUESTION CONSTITUTED A "FINAL" DECISION WITHIN THE
MEANING OF 28 U.S.C. 1291 /8/  AND WERE THEREFORE APPEALABLE AS OF
RIGHT UNDER THAT SECTION; AND, SECOND, THAT THE COURT OF APPEALS IN
EISEN II EXPRESSLY RETAINED JURISDICTION PENDING FURTHER DEVELOPMENT OF
A FACTUAL RECORD ON REMAND AND THAT CONSEQUENTLY NO NEW JURISDICTIONAL
BASIS WAS REQUIRED FOR THE DECISION IN EISEN III.  BECAUSE WE AGREE
WITH THE FIRST GROUND ASSERTED BY RESPONDENTS, WE HAVE NO OCCASION TO
CONSIDER THE SECOND. 

RESTRICTING APPELLATE REVIEW TO "FINAL DECISIONS" PREVENTS THE
DEBILITATING EFFECT ON JUDICIAL ADMINISTRATION CAUSED BY PIECEMEAL
APPELLATE DISPOSITION OF WHAT IS, IN PRACTICAL CONSEQUENCE, BUT A
SINGLE CONTROVERSY.  WHILE THE APPLICATION OF 1291 IN MOST CASSES IS
PLAIN ENOUGH, DETERMINING THE FINALITY OF A PARTICULAR JUDICIAL ORDER
MAY POSE A CLOSE QUESTION.  NO VERBAL FORMULA YET DEVISED CAN EXPLAIN
PRIOR FINALITY DECISIONS WITH UNERRING ACCURACY OR PROVIDE AN UTTERLY
RELIABLE GUIDE FOR THE FUTURE.  /9/  WE KNOW, OF COURSE, THAT 1291 DOES
NOT LIMIT APPELLATE REVIEW TO "THOSE FINAL JUDGMENTS WHICH TERMINATE AN
ACTION . . .," COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541, 545
(1949), BUT RATHER THAT THE REQUIREMENT OF FINALITY IS TO BE GIVEN A
"PRACTICAL RATHER THAN A TECHNICAL CONSTRUCTION."  ID., AT 546.  THE
INQUIRY REQUIRES SOME EVALUATION OF THE COMPETING CONSIDERATIONS
UNDERLYING ALL QUESTIONS OF FINALITY--"THE INCONVENIENCE AND COSTS OF
PIECEMEAL REVIEW ON THE ONE HAND AND THE DANGER OF DENYING JUSTICE ON
THE OTHER."  DICKINSON V. PETROLEUM CONVERSION CORP., 338 U.S. 507, 511
(1950) (FOOTNOTE OMITTED). 

WE FIND THE INSTANT CASE CONTROLLED BY OUR DECISION IN COHEN V.
BENEFICIAL LOAN CORP., SUPRA.  THERE THE COURT CONSIDERED THE
APPLICABILITY IN A FEDERAL DIVERSITY ACTION OF A FORUM STATE STATUTE
MAKING THE PLAINTIFF IN A STOCKHOLDER'S DERIVATIVE ACTION LIABLE FOR
LITIGATION EXPENSES, IF ULTIMATLEY UNSUCCESSFUL, AND ENTITLING THE
CORPORATION TO DEMAND SECURITY IN ADVANCE FOR THEIR PAYMENT.  THE TRIAL
COURT RULED THE STATUTE INAPPLICABLE, AND THE CORPORATION SOUGHT
IMMEDIATE APPELLATE REVIEW OVER THE STOCKHOLDER'S OBJECTION THAT THE
ORDER APPEALED FROM WAS NOT FINAL.  THIS COURT HELD THAT ORDER
APPEALABLE ON TWO GROUNDS.  FIRST, THE DISTRICT COURT'S FINDING WAS NOT
"TENTATIVE, INFORMAL OR INCOMPLETE," 337 U.S., AT 546, BUT SETTLED
CONCLUSIVELY THE CORPORATION'S CLAIM THAT IT WAS ENTITLED BY STATE LAW
TO REQUIRE THE SHAREHOLDER TO POST SECURITY FOR COSTS.  SECOND, THE
DECISION DID NOT CONSTITUTE MERELY A "STEP TOWARD FINAL DISPOSITION OF
THE MERITS OF THE CASE . . . ."  IBID.  RATHER, IT CONCERNED A
COLLATERAL MATTER THAT COULD NOT BE REVIEWED EFFECTIVELY ON APPEAL FROM
THE FINAL JUDGMENT.  THE COURT SUMMARIZED ITS CONCLUSION IN THIS WAY: 

     "THIS DECISION APPEARS TO FALL IN THAT SMALL CLASS WHICH

  FINALLY DETERMINE CLAIMS OF RIGHT SEPARABLE FROM, AND COLLATERAL

  TO, RIGHTS ASSERTED IN THE ACTION, TOO IMPORTANT TO BE DENIED

  REVIEW AND TOO INDEPENDENT OF THE CAUSE ITSELF TO REQUIRE THAT

  APPELLATE CONSIDERATION BE DEFERRED UNTIL THE WHOLE CASE IS

  ADJUDICATED."  IBID. 

ANALYSIS OF THE INSTANT CASE REVEALS THAT THE DISTRICT COURT'S ORDER
IMPOSING 90% OF THE NOTICE COSTS ON RESPONDENTS LIKEWISE FALLS WITHIN
"THAT SMALL CLASS."  IT CONCLUSIVELY REJECTED RESPONDENTS' CONTENTION
THAT THEY COULD NOT LAWFULLY BE REQUIRED TO BEAR THE EXPENSE OF NOTICE
TO THE MEMBERS OF PETITIONER'S PROPOSED CLASS.  MOREOVER, IT INVOLVED A
COLLATERAL MATTER UNRELATED TO THE MERITS OF PETITIONER'S CLAIMS.  LIKE
THE ORDER IN COHEN, THE DISTRICT COURT'S JUDGMENT ON THE ALLOCATION OF
NOTICE COSTS WAS "A FINAL DISPOSITION OF A CLAIMED RIGHT WHICH IS NOT
AN INGREDIENT OF THE CAUSE OF ACTION AND DOES NOT REQUIRE CONSIDERATION
WITH IT," 337 U.S., AT 546 - 547, AND IT WAS SIMILARLY APPEALABLE AS A
"FINAL DECISION" UNDER 1291.  IN OUR VIEW THE COURT OF APPEALS
THEREFORE HAD JURISDICTION TO REVIEW FULLY THE DISTRICT COURT'S
RESOLUTION OF THE CLASS ACTION NOTICE PROBLEMS IN THIS CASE, FOR THAT
COURT'S ALLOCATION OF 90% OF THE NOTICE COSTS TO RESPONDENTS WAS BUT
ONE ASPECT OF ITS EFFORT TO CONSTRUE THE REQUIREMENTS OF RULE 23 (C)(2)
IN A WAY THAT WOULD PERMIT PETITIONER'S SUIT TO PROCEED AS A CLASS
ACTION.  /10/

        III 

TURNING TO THE MERITS OF THE CASE, WE FIND THAT THE DISTRICT COURT'S
RESOLUTION OF THE NOTICE PROBLEMS WAS ERRONEOUS IN TWO RESPECTS. 
FIRST, IT FAILED TO COMPLY WITH THE NOTICE REQUIREMENTS OF RULE 23
(C)(2), AND SECOND, IT IMPOSED PART OF THE COST OF NOTICE ON
RESPONDENTS. 

       A 

RULE 23 (C)(2) PROVIDES THAT, IN ANY CLASS ACTION MAINTAINED UNDER
SUBDIVISION (B)(3), EACH CLASS MEMBER SHALL BE ADVISED THAT HE HAS THE
RIGHT TO EXCLUDE HIMSELF FROM THE ACTION ON REQUEST OR TO ENTER AN
APPEARANCE THROUGH COUNSEL, AND FURTHER THAT THE JUDGMENT, WHETHER
FAVORABLE OR NOT, WILL BIND ALL CLASS MEMBERS NOT REQUESTING
EXCLUSION.  TO THIS END, THE COURT IS REQUIRED TO DIRECT TO CLASS
MAMBERS "THE BEST NOTICE PRACTICABLE UNDER THE CIRCUMSTANCES, INCLUDING
INDIVIDUAL NOTICE TO ALL MEMBERS WHO CAN BE IDENTIFIED THROUGH
REASONABLE EFFORT."  /11/  WE THINK THE IMPORT OF THIS LANGUAGE IS
UNMISTAKABLE.  INDIVIDUAL NOTICE MUST BE SENT TO ALL CLASS MEMBERS
WHOSE NAMES AND ADDRESSES MAY BE ASCERTAINED THROUGH REASONABLE
EFFORT. 

THE ADVISORY COMMITTEE'S NOTE TO RULE 23 REINFORCES THIS
CONCLUSION.  SEE 39 F.R.D. 69, 98 (1966).  THE ADVISORY COMMITTEE
DESCRIBED SUBDIVISION (C)(2) AS "NOT MERELY DISCRETIONARY" AND ADDED
THAT THE "MANDATORY NOTICE PURSUANT TO SUBDIVISION (C)(2) . . . IS
DESIGNED TO FULFILL REQUIREMENTS OF DUE PROCESS TO WHICH THE CLASS
ACTION PROCEDURE IS OF COURSE SUBJECT."  ID., AT 106 - 107.  THE
COMMITTEE EXPLICATED ITS INCORPORATION OF DUE PROCESS STANDARDS BY
CITATION TO MULLANE V. CENTRAL HANOVER BANK & TRUST CO., 339 U.S. 306
(1950), AND LIKE CASES. 

IN MULLANE THE COURT ADDRESSED THE CONSTITUTIONAL SUFFICIENCY OF
PUBLICATION NOTICE RATHER THAN MAILED INDIVIDUAL NOTICE TO KNOWN
BENEFICIARIES OF A COMMON TRUST FUND AS PART OF A JUDICIAL SETTLEMENT
OF ACCOUNTS.  THE COURT OBSERVED THAT NOTICE AND AN OPPORTUNITY TO BE
HEARD WERE FUNDAMENTAL REQUISITES OF THE CONSTITUTIONAL GUARANTEE OF
PROCEDURAL DUE PROCESS.  IT FURTHER STATED THAT NOTICE MUST BE
"REASONABLY CALCULATED, UNDER ALL THE CIRCUMSTANCES, TO APPRISE
INTERESTED PARTIES OF THE PENDENCY OF THE ACTION AND AFFORD THEM AN
OPPORTUNITY TO PRESENT THEIR OBJECTIONS."  ID., AT 314.  THE COURT
CONTINUED: 

     "BUT WHEN NOTICE IS A PERSONS' DUE, PROCESS WHICH IS A MERE

  GESTURE IS NOT DUE PROCESS.  THE MEANS EMPLOYED MUST BE SUCH AS

ONE DESIROUS OF ACTUALLY INFORMING THE ABSENTEE MIGHT REASONABLY

  ADOPT TO ACCOMPLISH IT.  THE REASONABLENESS AND HENCE THE

  CONSTITUTIONAL VALIDITY OF ANY CHOSEN METHOD MAY BE DEFENDED ON

  THE GROUND THAT IT IS IN ITSELF REASONABLY CERTAIN TO INFORM

  THOSE AFFECTED."  ID., AT 315. 

THE COURT THEN HELD THAT PUBLICATION NOTICE COULD NOT SATISFY DUE
PROCESS WHERE THE NAMES AND ADDRESSES OF THE BENEFICIARIES WERE KNOWN. 
/12/  IN SUCH CASES, "THE REASONS DISAPPEAR FOR RESORT TO MEANS LESS
LIKELY THAN THE MAILS TO APPRISE THEM OF (AN ACTION'S) PENDENCY."  ID.,
AT 318. 

IN SCHROEDER V. CITY OF NEW YORK, 371 U.S. 208 (1962), DECIDED PRIOR
TO THE PROMULGATION OF AMENDED RULE 23, THE COURT EXPLAINED THAT
MULLANE REQUIRED REJECTION BY PUBLICATION WHERE THE NAME AND ADDRESS OF
THE AFFECTED PERSON WERE AVAILABLE.  THE COURT STATED THAT THE "GENERAL
RULE" IS THAT "NOTICE BY PUBLICATION IS NOT ENOUGH WITH RESPECT TO A
PERSON WHOSE NAME AND ADDRESS ARE KNOWN OR VERY EASILY ASCERTAINABLE .
. . ."  ID., AT 212 - 213.  THE COURT ALSO NOTED THAT NOTICE BY
PUBLICATION HAD LONG BEEN RECOGNIZED AS A POOR SUBSTITUTE FOR ACTUAL
NOTICE AND THAT ITS JUSTIFICATION WAS "'DIFFICULT AT BEST.'"  ID., AT
213. 

VIEWED IN THIS CONTEXT, THE EXPRESS LANGUAGE AND INTENT OF RULE 23
(C)(2) LEAVE NO DOUBT THAT INDIVIDUAL NOTICE MUST BE PROVIDED TO THOSE
CLASS MEMBERS WHO ARE IDENTIFIABLE THROUGH REASONABLE EFFORT.  IN THE
PRESENT CASE, THE NAMES AND ADDRESSES OF 2,250,000 CLASS MEMBERS ARE
EASILY ASCERTAINABLE, AND THERE IS NOTHING TO SHOW THAT INDIVIDUAL
NOTICE CANNOT BE MAILED TO EACH.  FOR THESE CLASS MEMBERS, INDIVIDUAL
NOTICE IS CLEARLY THE "BEST NOTICE PRACTICABLE" WITHIN THE MEANING OF
RULE 23 (C)(2) AND OUR PRIOR DECISIONS. 

PETITIONER CONTENDS, HOWEVER, THAT WE SHOULD DISPENSE WITH THE
REQUIREMENT OF INDIVIDUAL NOTICE IN THIS CASE, AND HE ADVANCES TWO
REASONS FOR OUR DOING SO.  FIRST, THE PROHIBITIVELY HIGH COST OF
PROVIDING INDIVIDUAL NOTICE TO 2,250,000 CLASS MAMBERS WOULD END THIS
SUIT AS A CLASS ACTION AND EFFECTIVELY FRUSTRATE PETITIONER'S ATTEMPT
TO VINDICATE THE POLICIES UNDERLYING THE ANTITRUST AND SECURITIES
LAWS.  SECOND, PETITIONER CONTENDS THAT INDIVIDUAL NOTICE IS
UNNECESSARY IN THIS CASE, BECAUSE NO PROSPECTIVE CLASS MEMBER HAS A
LARGE ENOUGH STAKE IN THE MATTER TO JUSTIFY SEPARATE LITIGATION OF HIS
INDIVIDUAL CLAIM.  HENCE, CLASS MEMBERS LACK ANY INCENTIVE TO OPT OUT
OF THE CLASS ACTION EVEN IF NOTIFIED. 

THE SHORT ANSWER TO THESE ARGUMENTS IS THAT INDIVIDUAL NOTICE TO
IDENTIFIABLE CLASS MEMBERS IS NOT A DISCRETIONARY CONSIDERATION TO BE
WAIVED IN A PARTICULAR CASE.  IT IS, RATHER, AN UNAMBIGUOUS REQUIREMENT
OF RULE 23.  AS THE ADVISORY COMMITTEE'S NOTE EXPLAINED, THE RULE WAS
INTENDED TO INSURE THAT THE JUDGMENT, WHETHER FAVORABLE OR NOT, WOULD
BIND ALL CLASS MEMBERS WHO DID NOT REQUEST EXCLUSION FROM THE SUIT.  39
F.R.D., AT 99, 105 - 106.  ACCORDINGLY, EACH CLASS MEMBER WHO CAN BE
IDENTIFIED THROUGH REASONABLE EFFORT MUST BE NOTIFIED THAT HE MAY
REQUEST EXCLUSION FROM THE ACTION AND THEREBY PRESERVE HIS OPPORTUNITY
TO PRESS HIS CLAIM SEPARATELY OR THAT HE MAY REMAIN IN THE CLASS AND
PERHAPS PARTICIPATE IN THE MANAGEMENT OF THE ACTION.  THERE IS NOTHING
IN RULE 23 TO SUGGEST THAT THE NOTICE REQUIREMENTS CAN BE TAILORED TO
FIT THE POCKETBOOKS OF PARTICULAR PLAINTIFFS.  /13/ 

PETITIONER FURTHER CONTENDS THAT ADEQUATE REPRESENTATION, RATHER
THEN NOTICE, IS THE TOUCHSTONE OF DUE PROCESS IN A CLASS ACTION AND
THEREFORE SATISFIES RULE 23.  WE THINK THIS VIEW HAS LITTLE TO COMMEND
IT.  TO BEGIN WITH, RULE 23 SPEAKS TO NOTICE AS WELL AS TO ADEQUACY OF
REPRESENTATION AND REQUIRES THAT BOTH BE PROVIDED.  MOREOVER,
PETITIONER'S ARGUMENT PROVES TOO MUCH, FOR IT QUICKLY LEADS TO THE
CONCLUSION THAT NO NOTICE AT ALL, PUBLISHED OR OTHERWISE, WOULD BE
REQUIRED IN THE PRESENT CASE.  THIS CANNOT BE SO, FOR QUITE APART FROM
WHAT DUE PROCESS MAY REQUIRE, THE COMMAND OF RULE 23 IS CLEARLY TO THE
CONTRARY.  WE THEREFORE CONCLUDE THAT RULE 23 (C)(2) REQUIRES THAT
INDIVIDUAL NOTICE BE SENT TO ALL CLASS MEMBERS WHO CAN BE IDENTIFIED
WITH REASONABLE EFFORT.  /14/             B 

WE ALSO AGREE WITH THE COURT OF APPEALS THAT PETITIONER MUST BEAR
THE COST OF NOTICE TO THE MEMBERS OF HIS CLASS.  THE DISTRICT COURT
REACHED THE CONTRARY CONCLUSION AND IMPOSED 90% OF THE NOTICE COST ON
RESPONDENTS.  THIS DECISION WAS PREDICATED ON THE COURT'S FINDING, MADE
AFTER A PRELIMINARY HEARING ON THE MERITS OF THE CASE, THAT PETITIONER
WAS "MORE THAN LIKELY"  TO PREVAIL ON HIS CLAIMS.  APPARENTLY, THAT
COURT INTERPRETED RULE 23 TO AUTHORIZE SUCH A HEARING AS PART OF THE
DETERMINATION WHETHER A SUIT MAY BE MAINTAINED AS A CLASS ACTION.  WE
DISAGREE.     WE FIND NOTHING IN EITHER THE LANGUAGE OR HISTORY OF RULE
23 THAT GIVES A COURT ANY AUTHORITY TO CONDUCT A PRELIMINARY INQUIRY
INTO THE MERITS OF A SUIT IN ORDER TO DETERMINE WHETHER IT MAY BE
MAINTAINED AS A CLASS ACTION.  INDEED, SUCH A PROCEDURE CONTRAVENES THE
RULE BY ALLOWING A REPRESENTATIVE PLAINTIFF TO SECURE THE BENEFITS OF A
CLASS ACTION WITHOUT FIRST SATISFYING THE REQUIREMENTS FOR IT.  HE IS
THEREBY ALLOWED TO OBTAIN A DETERMINATION ON THE MERITS OF THE CLAIMS
ADVANCED ON BEHALF OF THE CLASS WITHOUT ANY ASSURANCE THAT A CLASS
ACTION MAY BE MAINTAINED.  THIS PROCEDURE IS DIRECTLY CONTRARY TO THE
COMMAND OF SUBDIVISION (C)(1) THAT THE COURT DETERMINE WHETHER A SUIT
DENOMINATED A CLASS ACTION MAY BE MAINTAINED AS SUCH "(AS SOON AS
PRACTICABLE AFTER THE COMMENCEMENT OF (THE) ACTION . . . ."  IN SHORT,
WE AGREE WITH JUDGE WISDOM'S CONCLUSION IN MILLER V. MACKEY
INTERNATIONAL, 452 F.2D 424 (CA5 1971), WHERE THE COURT REJECTED A
PRELIMINARY INQUIRY INTO THE MERITS OF A PROPOSED CLASS ACTION: 

"IN DETERMINING THE PROPRIETY OF A CLASS ACTION, THE QUESTION IS NOT
WHETHER THE PLAINTIFF OR PLAINTIFFS HAVE STATED A CAUSE OF ACTION OR
WILL PREVAIL ON THE MERITS, BUT RATHER WHETHER THE REQUIREMENTS OF RULE
23 ARE MET."  ID., AT 427.  ADDITIONALLY, WE MIGHT NOTE THAT A
PRELIMINARY DETERMINATION OF THE MERITS MAY RESULT IN SUBSTANTIAL
PREJUDICE TO A DEFENDANT, SINCE OF NECESSITY IT IS NOT ACCOMPANIED BY
THE TRADITIONAL RULES AND PROCEDURES APPLICABLE TO CIVIL TRIALS.  THE
COURT'S TENTATIVE FINDINGS, MADE IN THE ABSENCE OF ESTABLISHED
SAFEGUARDS, MAY COLOR THE SUBSEQUENT PROCEEDINGS AND PLACE AN UNFAIR
BURDEN ON THE DEFENDANT. 

IN THE ABSENCE OF ANY SUPPORT UNDER RULE 23, PETITIONER'S EFFORT TO
IMPOSE THE COST OF NOTICE ON RESPONDENTS MUST FAIL.  THE USUAL RULE IS
THAT A PLAINTIFF MUST INITIALLY BEAR THE COST OF NOTICE TO THE CLASS. 
THE EXCEPTIONS CITED BY THE DISTRICT COURT RELATED TO SITUATIONS WHERE
A FIDUCIARY DUTY PRE-EXISTED BETWEEN THE PLAINTIFF AND DEFENDANT, AS IN
A SHAREHOLDER DERIVATIVE SUIT.  /15/  WHERE, AS HERE, THE RELATIONSHIP
BETWEEN THE PARTIES IS TRULY ADVERSARY, THE PLAINTIFF MUST PAY FOR THE
COST OF NOTICE AS PART OF THE ORDINARY BURDEN OF FINANCING HIS OWN
SUIT. 

PETITIONER HAS CONSISTENTLY MAINTAINED, HOWEVER, THAT HE WILL NOT
BEAR THE COST OF NOTICE UNDER SUBDIVISION (C)(2) TO MEMBERS OF THE
CLASS AS DEFINED IN HIS ORIGINAL COMPLAINT.  SEE 479 F.2D, AT 1008; 52
F.R.D., AT 269.  WE THEREFORE REMAND THE CAUSE WITH INSTRUCTIONS TO
DISMISS THE CLASS ACTION AS SO DEFINED.  /16/ 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CAUSE
REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

IT IS SO ORDERED. 

/1/  ODD LOTS ARE SHARES TRADED IN LOTS OF LESS THAN A HUNDRED. 
SHARES TRADED IN UNITS OF A HUNDRED OR MULTIPLES THEREOF ARE ROUND
LOTS. 

/2/  ON JULY 1, 1966, THE $40 "BREAKPOINT" WAS RAISED TO $55. 

/3/  (B) CLASS ACTIONS MAINTAINABLE. 

"AN ACTION MAY BE MAINTAINED AS A CLASS ACTION IF THE PREREQUISITES
OF SUBDIVISION (A) ARE SATISFIED, AND IN ADDITION: 

"(1) THE PROSECUTION OF SEPARATE ACTIONS BY OR AGAINST INDIVIDUAL
MEMBERS OF THE CLASS WOULD CREATE A RISK OF 

"(A) INCONSISTENT OR VARYING ADJUDICATIONS WITH RESPECT TO
INDIVIDUAL MEMBERS OF THE CLASS WHICH WOULD ESTABLISH INCOMPATIBLE
STANDARDS OF CONDUCT FOR THE PARTY OPPOSING THE CLASS, OR 

"(B) ADJUDICATIONS WITH RESPECT OT INDIVIDUAL MEMBERS OF THE CLASS
WHICH WOULD AS A PRACTICAL MATTER BE DISPOSITIVE OF THE INTERESTS OF
THE OTHER MEMBERS NOT PARTIES TO THE ADJUDICATIONS OR SUBSTANTIALLY
IMPAIR OR IMPEDE THEIR ABILITY TO PROTECT THEIR INTERESTS; OR 

"(2) THE PARTY OPPOSING THE CLASS HAS ACTED OR REFUSED TO ACT ON
GROUNDS GENERALLY APPLICABLE TO THE CLASS, THEREBY MAKING APPROPRIATE
FINAL INJUNCTIVE RELIEF OR CORRESPONDING DECLARATORY RELIEF WITH
RESPECT TO THE CLASS AS A WHOLE; OR 

"(3) THE COURT FINDS THAT THE QUESTIONS OF LAW OR FACT COMMON TO THE
MEMBERS OF THE CLASS PREDOMINATE OVER ANY QUESTIONS AFFECTING ONLY
INDIVIDUAL MEMBERS, AND THAT A CLASS ACTION IS SUPERIOR TO OTHER
AVAILABLE METHODS FOR THE FAIR AND EFFICIENT ADJUDICATION OF THE
CONTROVERSY.  THE MATTERS PERTINENT TO THE FINDINGS INCLUDE:  (A) THE
INTEREST OF MEMBERS OF THE CLASS IN INDIVIDUALLY CONTROLLING THE
PROSECUTION OF DEFENSE OF SEPARATE ACTIONS; (B) THE EXTENT AND NATURE
OF ANY LITIGATION CONCERNING THE CONTROVERSY ALREADY COMMENCED BY OR
AGAINST MEMBERS OF THE CLASS; (C) THE DESIRABILITY OR UNDESIRABILITY OF
CONCENTRATING THE LITIGATION OF THE CLAIMS IN THE PARTICULAR FORUM; (D)
THE DIFFICULTIES LIKELY TO BE ENCOUNTERED IN THE MANAGEMENT OF A CLASS
ACTION." 

/4/  BEFORE THE COURT OF APPEALS, PETITIONER DROPPED THE CONTENTION
THAT THE SUIT QUALIFIED UNDER SUBDIVISION (B)(1)(B).  THE COURT HELD
SUBDIVISION (B)(1)(A) INAPPLICABLE ON THE GROUND THAT THE PROSPECTIVE
CLASS CONSISTED ENTIRELY OF SMALL CLAIMANTS, NONE OF WHOM COULD AFFORD
TO LITIGATE THIS ACTION IN ORDER TO RECOVER HIS INDIVIDUAL CLAIM AND
THAT CONSEQUENTLY THERE WAS LITTLE CHANCE OF "INCONSISTENT OR VARYING
ADJUDICATIONS WITH RESPECT TO INDIVIDUAL MEMBERS OF THE CLASS WHICH
WOULD ESTABLISH INCOMPATIBLE STANDARDS OF CONDUCT FOR THE PARTY
OPPOSING THE CLASS . . . ."  SUBDIVISION (B)(2) WAS HELD TO APPLY ONLY
TO ACTIONS EXCLUSIVELY OR PREDOMINANTLY FOR INJUNCTIVE OR DECLARATORY
RELIEF.  ADVISORY COMMITTEE'S NOTE, PROPOSED RULES OF CIVIL PROCEDURE,
39 F.R.D. 69, 98, 102 (1966). 

/5/  THESE TWO MILLION TRADERS DEALT WITH BROKERAGE FIRMS WHO
TRANSMITTED THEIR ODD-LOT TRANSACTIONS TO RESPONDENTS CARLISLE &
JACQUELIN AND DECOPPET & DOREMUS VIA TELETYPE.  BY COMPARING THE ODD
LOT FIRMS' COMPUTERIZED RECORDS OF THESE TELETYPE TRANSACTIONS AND THE
GENERAL-SERVICES BROKERAGE FIRMS'  COMPUTERIZED RECORDS OF ALL CUSTOMER
NAMES AND ADDRESSES, THE NAMES AND ADDRESSES OF THESE TWO MILLION ODD
LOT TRADERS CAN BE OBTAINED. 

/6/  IN THIS PERIOD FROM MAY 1962 THROUGH JUNE 1968, 100,000
INDIVIDUALS HAD ODD-LOT TRANSACTIONS THROUGH PARTICIPATION IN THE
MONTHLY INVESTMENT PLAN OPERATED BY THE EXCHANGE AND 150,000 PERSONS
TRADED IN ODD LOTS THROUGH PARTICIPATION IN A NUMBER OF PAYROLL
DEDUCTION PLANS OPERATED BY MERRILL LYNCH, PIERCE, FENNER & SMITH, 

/7/  ADJUSTING THIS FIGURE TO REFLECT THE SUBSEQUENT 4[ INCREASE IN
FIRST CLASS POSTAGE WOULD YIELD A FIGURE OF $315,000. 

/8/  SECTION 1291 PROVIDES: 

"THE COURTS OF APPEALS SHALL HAVE JURISDICTION OF APPEALS FROM ALL
FINAL DECISIONS OF THE DISTRICT COURTS OF THE UNITED STATES, THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE, THE DISTRICT
COURT OF GUAM, AND THE DISTRICT COURT OF THE VIRGIN ISLANDS, EXCEPT
WHERE A DIRECT REVIEW MAY BE HAD IN THE SUPREME COURT." 

/9/  AS LONG AGO AS 1892 THE COURT COMPLAINED:  "PROBABLY NO
QUESTION OF EQUITY PRACTICE HAS BEEN THE SUBJECT OF MORE FREQUENT
DISCUSSION IN THIS COURT THAN THE FINALITY OF DECREES . . . . THE
CASES, IT MUST BE CONCEDED, ARE NOT ALTOGETHER HARMONIOUS."  MCGOURKEY
V. TOLEDO & OHIO R. CO., 146 U.S. 536, 544 - 545.  IN THE INTERVENING
YEARS THE DIFFICULTY OF RESOLVING SUCH QUESTIONS HAS NOT ABATED.  AS
MR. JUSTICE BLACK COMMENTED IN GILLESPIE V. U.S. STEEL CORP., 379 U.S.
148, 152 (1964), "WHETHER A RULING IS 'FINAL' WITHIN THE MEANING OF
1291 IS FREQUENTLY SO CLOSE A QUESTION THAT DECISION OF THAT ISSUE
EITHER WAY CAN BE SUPPORTED WITH EQUALLY FORCEFUL ARGUMENTS, AND THAT
IT IS IMPOSSIBLE TO DEVISE A FORMULA TO RESOLVE ALL MARGINAL CASES
COMING WITHIN WHAT MIGHT WELL BE CALLED THE 'TWILIGHT ZONE' OF
FINALITY." 

/10/  AS EXPLAINED IN PART III OF THIS OPINION, WE FIND THE NOTICE
REQUIREMENTS OF RULE 23 TO BE DISPOSITIVE OF PETITIONER'S ATTEMPT TO
MAINTAIN THE CLASS ACTION AS PRESENTLY DEFINED.  WE THEREFORE HAVE NO
OCCASION TO CONSIDER WHETHER THE COURT OF APPEALS CORRECTLY RESOLVED
THE ISSUES OF MANAGEABILITY AND FLUID-CLASS RECOVERY, OR INDEED,
WHETHER THOSE ISSUES WERE PROPERLY BEFORE THE COURT OF APPEALS UNDER
THE THEORY OF RETAINED JURISDICTION. 

/11/  SUBDIVISION (C)(2) PROVIDES IN FULL:  "(2) IN ANY CLASS ACTION
MAINTAINED UNDER SUBDIVISION (B)(3), THE COURT SHALL DIRECT TO THE
MEMBERS OF THE CLASS THE BEST NOTICE PRACTICABLE UNDER THE
CIRCUMSTANCES, INCLUDING INDIVIDUAL NOTICE TO ALL MEMBERS WHO CAN BE
IDENTIFIED THROUGH REASONABLE EFFORT.  THE NOTICE SHALL ADVISE EACH
MEMBER THAT (A) THE COURT WILL EXCLUDE HIM FROM THE CLASS IF HE SO
REQUESTS BY A SPECIFIED DATE; (B) THE JUDGMENT, WHETHER FAVORABLE OR
NOT, WILL INCLUDE ALL MEMBERS WHO DO NOT REQUEST EXCLUSION; AND (C) ANY
MEMBER WHO DOES NOT REQUEST EXCLUSION MAY, IF HE DESIRES, ENTER AN
APPEARANCE THROUGH HIS COUNSEL." 

/12/  THE COURT'S DISCUSSION OF THE INADEQUACIES OF PUBLISHED NOTICE
BEARS ATTENTION: 

"IT WOULD BE IDLE TO PRETEND THAT PUBLICATION ALONE, AS PRESCRIBED
HERE, IS A RELIABLE MEANS OF ACQUAINTING INTERESTED PARTIES OF THE FACT
THAT THEIR RIGHTS ARE BEFORE THE COURTS . . . . CHANCE ALONE BRINGS TO
THE ATTENTION OF EVEN A LOCAL RESIDENT AN ADVERTISEMENT IN SMALL TYPE
INSERTED IN THE BACK PAGES OF A NEWSPAPER, AND IF HE MAKES HIS HOME
OUTSIDE THE AREA OF THE NEWSPAPER'S NORMAL CIRCULATION THE ODDS THAT
THE INFORMATION WILL NEVER REACH HIM ARE LARGE INDEED.  THE CHANCE OF
ACTUAL NOTICE IS FURTHER REDUCED WHEN, AS HERE, THE NOTICE REQUIRED NOT
EVEN NAME THOSE WHOSE ATTENTION IT IS SUPPOSED TO ATTRACT, AND DOES NOT
INFORM ACQUAINTANCES WHO MIGHT CALL IT TO ATTENTION."  339 U.S., AT
315. 

/13/  PETITIONER ALSO ARGUES THAT CLASS MEMBERS WILL NOT OPT OUT
BECAUSE THE STATUTE OF LIMITATIONS HAS LONG SINCE RUN OUT ON THE CLAIMS
OF ALL CLASS MEMBERS OTHER THAN PETITIONER.  THIS CONTENTION IS
DISPOSED OF BY OUR RECENT DECISION IN AMERICAN PIPE & CONSTRUCTION CO.
V. UTAH, 414 U.S. 538 (1974), WHICH ESTABLISHED THAT COMMENCEMENT OF A
CLASS ACTION TOLLS THE APPLICABLE STATUTE OF LIMITATIONS AS TO ALL
MEMBERS OF THE CLASS. 

/14/  WE ARE CONCERNED HERE ONLY WITH THE NOTICE REQUIREMENTS OF
SUBDIVISION (C)(2), WHICH ARE APPLICABLE TO CLASS ACTIONS MAINTAINED
UNDER SUBDIVISION (B)(3).  BY ITS TERMS SUBDIVISION (C)(2) IS
INAPPLICABLE TO CLASS ACTIONS FOR INJUNCTIVE OR DECLARATORY RELIEF
MAINTAINED UNDER SUBDIVISION (B)(2).  PETITIONER'S EFFORT TO QUALIFY
HIS SUIT AS A CLASS ACTION UNDER SUBDIVISIONS (B)(1) AND (B)(2) WAS
REJECTED BY THE COURT OF APPEALS.  SEE N. 4, SUPRA. 

/15/  SEE, E.G., DOLGOW V. ANDERSON, 43 F.R.D. 472, 498 - 500 (EDNY
1968).  WE, OF COURSE, EXPRESS NO OPINION ON THE PROPER ALLOCATION OF
THE COST OF NOTICE IN SUCH CASES. 

/16/  THE RECORD DOES NOT REVEAL WHETHER A SMALLER CLASS OF ODD-LOT
TRADERS COULD BE DEFINED, AND IF SO, WHETHER PETITIONER WOULD BE
WILLING TO PAY THE COST OF NOTICE TO MEMBERS OF SUCH A CLASS.  WE
INTIMATE NO VIEW ON WHETHER ANY SUCH SUBCLASS WOULD SATISFY THE
REQUIREMENTS OF RULE 23.  WE DO NOTE, HOWEVER, THAT OUR DISMISSAL OF
THE CLASS ACTION AS ORIGINALLY DEFINED IS WITHOUT PREJUDICE TO ANY
EFFORTS PETITIONER MAY MAKE TO REDEFINE HIS CLASS EITHER UNDER RULE 23
(C)(4) OR FED. RULE CIV. PROC. 15. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING IN PART. 

WHILE I AM IN GENERAL AGREEMENT WITH THE PHASES OF THIS CASE TOUCHED
ON BY THE COURT, I ADD A FEW WORDS BECAUSE ITS OPINION DOES NOT FULLY
EXPLORE THE ISSUES WHICH WILL BE DISPOSITIVE OF THIS CASE ON REMAND TO
THE DISTRICT COURT. 

FED. RULE CIV. PROC. 23 (C)(4) PROVIDES, "WHEN APPROPRIATE (A) AN
ACTION MAY BE BROUGHT OR MAINTAINED AS A CLASS ACTION WITH RESPECT TO
PARTICULAR ISSUES, OR (B) A CLASS MAY BE DIVIDED INTO SUBCLASSES AND
EACH SUBCLASS TREATED AS A CLASS, AND THE PROVISIONS OF THIS RULE SHALL
THEN BE CONSTRUED AND APPLIED ACCORDINGLY." 

AS JUDGE OAKES, SPEAKING FOR HIMSELF AND JUDGE TIMBERS, SAID BELOW: 

     "THE PLAINTIFF CLASS MIGHT, FOR EXAMPLE, BE DIVIDED INTO MUCH

  SMALLER SUBCLASSES . . . OF ODD LOT BUYERS FOR PARTICULAR

  PERIODS, AND ONE SUBCLASS TREATED AS A TEST CASE, WITH THE OTHER

  SUBCLASSES HELD IN ABEYANCE.  INDIVIDUAL NOTICE AT WHAT WOULD

  PROBABLY BE A REASONABLE COST COULD THEN BE GIVEN TO ALL MEMBERS

 OF THE PARTICULAR SMALL SUBCLASS WHO CAN BE EASILY IDENTIFIED." 

  479 F.2D 1005, 1023 (DISSENTING FROM DENIAL OF REHEARING EN

  BANC). 

OR A SUBCLASS MIGHT INCLUDE THOSE ON MONTHLY INVESTMENT PLANS, OR
PAYROLL DEDUCTION PLANS RUN BY BROKERAGE HOUSES.  /1/  THE
POSSIBILITIES, THOUGH NOT INFINITE, ARE NUMEROUS. 

THE POWER TO CREATE A SUBCLASS IS CLEAR AND UNAMBIGUOUS.  WHO SHOULD
BE INCLUDED AND HOW LARGE IT SHOULD BE ARE QUESTIONS THAT ONLY THE
DISTRICT COURT SHOULD RESOLVE.  NOTICE TO EACH MEMBER OF THE SUBCLASS
WOULD BE ESSENTIAL UNDER RULE 23 (C)(2); AND UNDER RULE 23 (C)(2)(A)
ANY NOTIFIED MEMBER MAY OPT OUT.  THERE WOULD REMAIN THE QUESTION
WHETHER THE SUBCLASS SUIT IS MANAGEABLE.  BUT SINCE THE SUBCLASS COULD
BE CHOSEN IN LIGHT OF THE NONMANAGEABILITY OF THE SIZE OF THE CLASS
WHOSE CLAIMS ARE PRESENTLY BEFORE US, THERE IS NO APPARENT DIFFICULTY
IN THAT SENSE. 

THE STATUTE OF LIMITATIONS, IT IS ARGUED, HAS RUN OR IS ABOUT TO RUN
ON MANY OF THESE CLASSES.  WE HELD IN AMERICAN PIPE & CONSTRUCTION CO.
V. UTAH, 414 U.S. 538, THAT THE START OF A CLASS ACTION PRIOR TO THE
RUNNING OF THE STATUTE PROTECTS ALL MEMBERS OF THE CLASS.  WHETHER THAT
RULE SHOULD OBTAIN FOR THE BENEFIT OF OTHER MEMBERS WHO COULD HAVE BEEN
INCLUDED IN THE SUBCLASS BRINGING SUIT, BUT FOR THE MANAGEABILITY
ISSUE, IS A QUESTION WE HAVE NOT DECIDED.  /2/  MOREOVER, IF THE
SUBCLASS SUES AND WINS OR SUES AND LOSES, QUESTIONS COVERING THE RIGHTS
OF MEMBERS OF THE LARGER CLASS WHO ARE NOT PARTIES WOULD BE RAISED. 
THESE ARE QUESTIONS WE HAVE NOT ANSWERED.  /3/  BUT THE FACT THAT
UNRESOLVED QUESTIONS OF LAW WOULD REMAIN IS NOT AN INSURMOUNTABLE
OBSTACLE, AND RULE 23 (C)(4)(B) EXPRESSLY AUTHORIZES SUBCLASSES TO SUE
IN LIEU OF A FULL CLASS.  RULE 23 (C)(4)(B) MAY HAVE HAD, AS A
FORERUNNER, THE PROPOSAL STATED BY JUDGE WEINSTEIN IN 1960:

  WHEN THERE IS A QUESTION OF LAW OR FACT COMMON TO PERSONS OF A
NUMEROUS CLASS WHOSE JOINDER IS

  IMPRACTICABLE, ONE OR MORE OF THEM WHOSE CLAIMS OR DEFENSES ARE
REPRESENTATIVE OF THE CLAIMS

  OR DEFENSES OF ALL AND WHO WILL FAIRLY AND ADEQUATELY PROTECT THE
INTEREST OF ALL MAY SUE OR

  BE SUED ON BEHALF OF ALL."  /4/ IN EXPLANATION HE ADDED: 

     "SUCH A RULE WOULD PROVIDE SIX REQUIREMENTS FOR A CLASS
ACTION:

   (1) A CLASS, (2) NUMEROUS MEMBERS, (3) COMMON QUESTION OF LAW OR

  FACE, (4) IMPRACTICABILITY OF JOINDER, (5) REPRESENTATIVE CLAIM

  OF DEFENSE, (6) FAIR AND ADEQUATE PROTECTION OF ABSENTEES. 

  "ALMOST ANY 'BOND OF ASSOCIATION' IN AN EVENT OR STATUS OUT OF

  WHICH A LEGAL DISPUTE AROSE IS SUFFICIENT TO CONSTITUTE A CLASS. 

  THE CLASS MUST BE NUMEROUS BUT NEED NOT BE SO LARGE THAT, IN

  ITSELF, THIS FACTOR MAKES IT IMPRACTICABLE TO BRING THEM ALL

  BEFORE THE COURT.  A NUMBER OF MEMBERS SUFFICIENT TO SATISFY

  PRESENT SECTION 195 (OF THE NEW YORK CIVIL PRACTICE ACT) WOULD

  SATISFY THE PROPOSED RULE.  SIZE, MODESTY OF MONETARY INTEREST,

  INABILITY TO LOCATE MEMBERS AND DIFFICULTY OF OBTAINING

  JURISDICTION SHOULD ALL BE CONSIDERED IN DETERMINING

  IMPRACTICABILITY OF JOINDER."  /5/ 

THE COURT PERMITS EISEN TO REDEFINE HIS CLASS EITHER BY AMENDING HIS
COMPLAINT PURSUANT TO FED. RULE CIV. PROC. 15, OR BY PROCEEDING UNDER
RULE 23 (C)(4).  WHILE EISEN MAY OF COURSE PROCEED BY AMENDING HIS
COMPLAINT TO DEFINE A SUBCLASS, IT IS CLEAR THAT HE NEED NOT DO SO. 
/6/  DEFINITION OF THE SUBCLASS WOULD PROPERLY BE ACCOMPLISHED BY ORDER
OF THE DISTRICT COURT, AS PERMITTED BY RULES 23 (C)(4) AND 23 (C)(1),
WITHOUT AMENDMENT OF THE COMPLAINT AS FILED.  WHILE THE COMPLAINT
ALLEGES THAT EISEN SUES ON HIS BEHALF AND ON BEHALF OF ALL PURCHASERS
AND SELLERS OF ODD LOTS, IT ADDS, "PLAINTIFF WILL FAIRLY INSURE THE
ADEQUATE REPRESENTATION OF ALL SUCH PERSONS."  PROBLEMS OF
MANAGEABILITY COVERED BY RULE 23 (B)(3)(D) ARISE ONLY AFTER ISSUES ARE
JOINED AND THE DISTRICT COURT IS ENGAGED IN SHAPING UP THE LITIGATION
FOR A TRIAL ON THE MERITS.  IF IT FINDS THAT A SUBCLASS WOULD BE MORE
APPROPRIATE, NO NEW ACTION NEED BE STARTED NOR ANY AMENDED COMPLAINT
FILED. 

RULE 23 (C)(1) PROVIDES:  "AS SOON AS PRACTICABLE AFTER THE
COMMENCEMENT OF AN ACTION BROUGHT AS A CLASS ACTION, THE COURT SHALL
DETERMINE BY ORDER WHETHER IT IS TO BE SO MAINTAINED.  AN ORDER UNDER
THIS SUBDIVISION MAY BE CONDITIONAL, AND MAY BE ALTERED OR AMENDED
BEFORE THE DECISION ON THE MERITS." 

IT IS AS PLAIN AS WORDS CAN MAKE IT THAT THE COURT WHICH DECIDES
THAT A FULL CLASS ACTION CAN BE MAINTAINED CAN ALTER OR AMEND ITS ORDER
"BEFORE THE DECISION ON THE MERITS."  ONE PERMISSIBLE WAY IN WHICH THE
COURT'S ORDER MAY BE CHANGED IS TO HAVE IT "ALTERED" AS PROVIDED IN
RULE 23 (C)(1) BY REDUCING THE LARGER CLASS TO A SUBCLASS AS PROVIDED
IN THE SAME SUBSECTION--RULE 23 (C)(4)(B).  THE PREREQUISITES OF A
CLASS CAUSE OF ACTION ARE DESCRIBED IN RULE 23 (A).  IN THE INSTANT
CASE THAT HURDLE HAS BEEN PASSED AND WE ARE AT THE STAGE OF NOTICE
REQUIREMENTS AND MANAGEABILITY.  NOT AN IOTA OF CHANGE IS MADE IN THE
CAUSE OF ACTION BY RESTRICTING IT TO A SUBCLASS. 

THE PURPOSE OF RULE 23 IS TO PROVIDE FLEXIBILITY IN THE MANAGEMENT
OF CLASS ACTIONS, WITH THE TRIAL COURT TAKING AN ACTIVE ROLE IN THE
CONDUCT OF THE LITIGATION.  SEE DOLGOW V. ANDERSON, 43 F.R.D. 472, 481
482 (EDNY); GREEN V. WOLF CORP., 406 F.2D 291, 298 (CA2), CERT.
DENIED, 395 U.S. 977.  LOWER FEDERAL COURTS HAVE RECOGNIZED THEIR
DISCRETION TO DEFINE THOSE SUBCLASSES PROPER TO PROSECUTE AN ACTION
WITHOUT BEING BOUND BY THE PLAINTIFF'S COMPLAINT.  SEE, E.G., DOLGOW V.
ANDERSON, SUPRA, AT 491 - 493; PHILADELPHIA ELEC.CO. V. ANACONDA
AMERICAN BRASS CO., 43 F.R.D. 452, 462 - 463 (ED PA.).  SEE GENERALLY
7A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE 1790, P. 187;
3B J. MOORE, FEDERAL PRACTICE PARA. 23.65.  AND, AS RULE 23 (C)(1)
CLEARLY INDICATES, THE COURTS RETAIN BOTH THE POWER AND THE DUTY TO
REALIGN CLASSES DURING THE CONDUCT OF AN ACTION WHEN APPROPRIATE.  SEE,
E.G., CARR V. CONOCO PLASTICS, INC., 423 F.2D 57, 58 (CA5), CERT.
DENIED, 400 U.S. 951; JOHNSON V. ITT-THOMPSON INDUSTRIES, INC., 323
F.SUPP.  1258, 1262 (ND MISS.); OSTAPOWICZ V. JOHNSON BRONZE CO., 54
F.R.D. 465, 466 (WD PA.); BAXTER V. SAVANNAH SUGAR REFINING CORP., 46
F.R.D. 56, 60 (SD GA.).  THAT DISCRETION CAN BE FULLY RETAINED ONLY IF
THE FULL CLASS COMPLAINT IS PRESERVED WHEN A SUBCLASS IS DEFINED TO
PROSECUTE THE ACTION.  THE BOUNDS OF THE SUBCLASS CAN THEN BE NARROWED
OR WIDENED BY ORDER OF THE DISTRICT COURT AS PROVIDED IN RULE 23
(C)(1), WITHOUT NEED TO AMEND THE COMPLAINT AND HAD EARLIER BEEN
AMENDED PURSUANT TO RULE 15 TO INCLUDE ONLY THE SUBCLASS. 

I AGREE WITH PROFESSOR CHAFEE THAT A CLASS ACTION SERVES NOT ONLY
THE CONVENIENCE OF THE PARTIES BUT ALSO PROMPT, EFFICIENT JUDICIAL
ADMINISTRATION.  /7/  I THINK IN OUR SOCIETY THAT IS GROWING IN
COMPLEXITY THERE ARE BOUND TO BE INNUMERABLE PEOPLE IN COMMON
DISASTERS, CALAMITIES, OR VENTURES WHO WOULD GO BEGGING FOR JUSTICE
WITHOUT THE CLASS ACTION BUT WHO COULD WITH ALL REGARD TO DUE PROCESS
BE PROTECTED BY IT.  SOME OF THESE ARE CONSUMERS WHOSE CLAIMS MAY SEEM
DE MINIMIS BUT WHO ALONE HAVE NO PRACTICAL RECOURSE FOR EITHER
REMUNERATION OR INJUNCTIVE RELIEF.  SOME MAY BE ENVIRONMENTALISTS WHO
HAVE NO PHOTOGRAPHIC DEVELOPMENT PLANT ABOUT TO BE RUINED BECAUSE OF
AIR POLLUTION BY RADIATION BUT WHO SUFFER PERCEPTIBLY BY SMOKE, NOXIOUS
GASES, OR RADIATION.  OR THE UNNAMED INDIVIDUAL MAY BE ONLY A RATEPAYER
BEING EXCESSIVELY CHARGED BY A UTILITY OR A HOMEOWNER WHOSE ASSESSMENT
IS SLOWLY RISING BEYOND HIS ABILITY TO PAY. 

THE CLASS ACTION IS ONE OF THE FEW LEGAL REMEDIES THE SMALL CLAIMANT
HAS AGAINST THOSE WHO COMMAND THE STATUS QUO.  /8/ I WOULD STRENGTHEN
HIS HAND WITH THE VIEW OF CREATING A SYSTEM OF LAW THAT DISPENSES
JUSTICE TO THE LOWLY AS WELL AS TO THOSE LIBERALLY ENDOWED WITH POWER
AND WEALTH. 

/1/  THE PARTIES AND COURTS BELOW CONCENTRATED ON WHETHER A CLASS
ACTION COULD BE SUSTAINED ON BEHALF OF ALL 6 MILLION ODD-LOT INVESTORS,
SO THAT THE RECORD IS LIMITED IN INFORMATION BEARING ON WHAT MANAGEABLE
SUBCLASSES COULD BE CREATED. 

THERE IS, NONETHELESS, INDICATION THAT CERTAIN SUBCLASSES MIGHT BE
ECONOMICALLY MANAGEABLE.  COUNSEL FOR RESPONDENT CARLISLE & JACQUELIN
STATED IN ORAL ARGUMENT BEFORE THE COURT OF APPEALS THAT 100,000
SHAREHOLDERS PARTICIPATE IN HIS CLIENT'S MONTHLY INVESTMENT PLAN, AND
THAT CARLISLE & JACQUELIN CORRESPONDS WITH THOSE INVESTORS.  MERRILL
LYNCH CORRESPONDS WITH 150,000 PEOPLE PARTICIPATING IN A PAYROLL
DEDUCTION INVESTMENT PLAN.  WHETHER EISEN OR ANY OTHER PLAINTIFF WHO
MAY COME FORWARD TO INTERVENE FITS IN SUCH A SUBCLASS, WE DO NOT KNOW. 
BUT IF BROKERAGE HOUSES CORRESPOND REGULARLY IN THE COURSE OF BUSINESS
WITH SUCH ODD-LOT INVESTORS, THE MARGINAL COST BE NOTHING MORE THAN
PRINTING AND STUFFING AN ADDITIONAL SHEET OF PAPER IN CORRESPONDENCE
ALREADY BEING SENT TO THE INVESTOR, OR PERHAPS ONLY PROGRAMMING A
COMPUTER TO TYPE AN ADDITIONAL PARAGRAPH AT THE BOTTOM OF MONTHLY OR
QUARTERLY STATEMENTS REGULARLY MAILED BY THE BROKERS. 

A SUBCLASS OF THOSE WHO HAD ENGAGED IN NUMEROUS TRANSACTIONS MIGHT
ALSO BE DEFINED, SO THAT THE RECOVERY PER CLASS MEMBER MIGHT BE LARGE
ENOUGH TO JUSTIFY THE COST OF NOTICE AND MANAGEMENT OF THE ACTION.  A
SURVEY OF ONLY 4 OF 14 WIRE FIRMS REVEALED 2,000 CUSTOMERS WITH 10 OR
MORE TRANSACTIONS BETWEEN 1962 AND 1966.  52 F.R.D. 253, 259, 267 & N.
10. 

BY DEFINING MORE DEFINITE SUBCLASSES SUCH AS THOSE DISCUSSED,
MOREOVER, THE PROBLEMS INHERENT IN DISTRIBUTING AN EVENTUAL JUDGMENT
WOULD BE REDUCED.  CLASS MEMBERS WOULD BE MORE READILY IDENTIFIABLE,
WITH MORE READILY ACCESSIBLE TRANSACTION RECORDS AND INDIVIDUALLY
PROVABLE DAMAGES. 

/2/ IN THIS CASE, THE ENTIRE CLASS WAS DEFINED IN THE ORIGINAL
COMPLAINT, AND THE DEFENDANTS WERE PUT ON NOTICE WITHIN THE PERIOD OF
LIMITATION OF THEIR POTENTIAL LIABILITY, SERVING THE PURPOSE OF THE
STATUTE OF LIMITATIONS EVEN IF THE SUBSTANTIVE MERITS WERE EVENTUALLY
TO BE PROSECUTED IN THE FORM OF A SUBCLASS ACTION WITH THE CLASS ACTION
HELD IN ABEYANCE.  "WITHIN THE PERIOD SET BY THE STATUTE OF
LIMITATIONS, THE DEFENDANTS HAVE THE ESSENTIAL INFORMATION NECESSARY TO
DETERMINE BOTH THE SUBJECT MATTER AND SIZE OF THE PROSPECTIVE
LITIGATION, WHETHER THE ACTUAL TRIAL IS CONDUCTED IN THE FORM OF A
CLASS ACTION, AS A JOINT SUIT, OR AS A PRINCIPAL SUIT WITH ADDITIONAL
INTERVENORS."  AMERICAN PIPE & CONSTRUCTION CO. V. UTAH, 414 U.S. 538,
555.  AND SEE WHEATON, REPRESENTATIVE SUITS INVOLVING NUMEROUS
LITIGANTS, 19 CORNELL L.Q. 399, 423 (1934). 

/3/  IF THE SUBCLASS LOST, IT IS ARGUED THAT OTHER INVESTORS NOT
MEMBERS OF THAT SUBCLASS COULD NOT BE PRECLUDED FROM PROSECUTING
SUCCESSFUL SUITS OF THEIR OWN, SINCE THEY HAD NEVER HAD THEIR DAY IN
COURT OR NECESSARILY EVEN BEEN APPRISED OF THE SUBCLASS' ACTION.  SEE
HANSBERRY V. LEE, 311 U.S. 32; F. JAMES, CIVIL PROCEDURE 11.26 (1965);
1B J. MOORE, FEDERAL PRACTICE PARA. 0.411 (1) (1974).  IF THE SUBCLASS
WON, STRICT APPLICATION OF THE DOCTRINE OF MUTUALITY OF ESTOPPEL WOULD
LIMIT THE USEFULNESS OF THAT SUBCLASS VICTORY IN SUITS BROUGHT BY
INVESTORS NOT MEMBERS OF THAT SUBCLASS.  SEE GENERALLY F. JAMES, SUPRA,
11.31; 1B J. MOORE, SUPRA. PARA. 0.412 (1) (AND SUPP. 1973), AND CASES
CITED THEREIN.  AND SEE VESTAL, PRECLUSION/RES JUDICATA VARIABLES:
PARTIES, 50 IOWA L.REV.  27, 55 - 59 (1964); NOTE, 35 GEO. WASH.L.REV. 
1010 (1967); CURRIE, MUTUALITY OF COLLATERAL ESTOPPEL:  LIMITS OF THE
BERNHARD DOCTRINE, 9 STAN.L.REV.  281 (1957). 

/4/  WEINSTEIN, REVISION OF PROCEDURE:  SOME PROBLEMS IN CLASS
ACTIONS, 9 BUFFALO L.REV.  433, 458. 

/5/  ID., AT 458 - 459 (FOOTNOTES OMITTED). 

/6/  WERE EISEN TO BE REMITTED TO AN INDIVIDUAL ACTION, AS HE WOULD
BE IF HE REFUSED TO PAY THE COST OF NOTICE EVEN TO A SUBCLASS,
AMENDMENT OF THE COMPLAINT MIGHT BE CALLED FOR BY THE DISTRICT COURT. 
UNDER RULE 23 (D)(4), THE DISTRICT COURT MAY IN SOME INSTANCES REQUIRE
THAT PLEADINGS BE AMENDED TO ELIMINATE CLASS ALLEGATIONS.  THE ADVISORY
COMMITTEE NOTES INDICATE THAT THIS PROVISION IS TO BE APPLIED ONLY WHEN
A SUIT MUST PROCEED AS A NONCLASS, INDIVIDUAL ACTION, NOT WHEN, AS
HERE, AN APPROPRIATE CLASS EXISTS AND THE ACTION MUST BE PROSECUTED IN
THE FIRST INSTANCE BY A SUBCLASS ONLY BECAUSE OF PROBLEMS OF
MANAGEABILITY.  SEE PROPOSED RULES OF CIVIL PROCEDURE, 39 F.R.D. 69,
104. 

/7/  Z. CHAFEE, SOME PROBLEMS OF EQUITY 149 (1950). 

/8/  JUDGE WEINSTEIN WRITING IN THE N.Y. LAW JOURNAL, MAY 2, 1972,
P. 4, COL. 3, SAID: 

"WHERE, HOWEVER, PUBLIC AUTHORITIES ARE REMISS IN PERFORMANCE OF
THIS RESPONSIBILITY FOR REASON OF INADEQUATE LEGAL AUTHORITY, EXCESSIVE
WORKLOADS OR SIMPLE INDIFFERENCE, CLASS ACTIONS MAY PROVIDE A NECESSARY
TEMPORARY MEASURE UNTIL DESIRABLE CORRECTIONS HAVE OCCURRED.  THE
EXISTENCE OF CLASS ACTION LITIGATION MAY ALSO PLAY A SUBSTANTIAL ROLE
IN BRINGING ABOUT MORE EFFICIENT ADMINISTRATIVE ENFORCEMENT AND IN
INDUCING LEGISLATIVE ACTION. 

"THE MATTER TOUCHES ON THE ISSUE OF THE CREDIBILITY OF OUR JUDICIAL
SYSTEM.  EITHER WE ARE COMMITTED TO MAKE REASONABLE EFFORTS TO PROVIDE
A FORUM FOR ADJUDICATION OF DISPUTES INVOLVING ALL OUR CITIZENS-
INCLUDING THOSE DEPRIVED OF HUMAN RIGHTS, CONSUMERS WHO OVERPAY FOR
PRODUCTS BECAUSE OF ANTITRUST VIOLATIONS AND INVESTORS WHO ARE
VICTIMIZED BY INSIDER TRADING OR MISLEADING INFORMATION--OR WE ARE
NOT.  THERE ARE THOSE WHO WILL NOT IGNORE THE IRONY OF COURTS READY TO
IMPRISON A MAN WHO STEALS SOME GOODS IN INTERSTATE COMMERCE WHILE
UNWILLING TO GRANT A CIVIL REMEDY AGAINST THE CORPORATION WHICH HAS
BENEFITED, TO THE EXTENT OF MANY MILLIONS OF DOLLARS, FROM COLLUSIVE,
ILLEGAL PRICING OF ITS GOODS TO THE PUBLIC. 

"WHEN THE ORGANIZATION OF A MODERN SOCIETY, SUCH AS OURS, AFFORDS
THE POSSIBILITY OF ILLEGAL BEHAVIOR ACCOMPANIED BY WIDESPREAD, DIFFUSE
CONSEQUENCES, SOME PROCEDURAL MEANS MUST EXIST TO REMEDY--OR AT LEAST
TO DETER--THAT CONDUCT." 

AARON M. FINE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE MORDECAI ROSENFELD AND HAROLD E. KOHN. 

DEVEREUX MILBURN AND WILLIAM ELDRED JACKSON ARGUED THE CAUSE FOR
RESPONDENTS.  WITH THEM ON THE BRIEFS WERE LOUIS L. STANTON, JR., AND
RUSSELL E. BROOKS. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND GEORGE D. ZUCKERMAN AND ARNOLD D.
FLEISCHER, ASSISTANT ATTORNEYS GENERAL, FOR THE ATTORNEY GENERAL OF NEW
YORK; BY ISRAEL PACKEL, ATTORNEY GENERAL, LAWRENCE SILVER AND GERRY J.
ELMAN, DEPUTY ATTORNEYS GENERAL, AND DAVID BERGER FOR THE COMMONWEALTH
OF PENNSYLVANIA; BY EVELLE J. YOUNGER, ATTORNEY GENERAL, ANTHONY C.
JOSEPH, ASSISTANT ATTORNEY GENERAL, AND MICHAEL I. SPIEGEL, DEPUTY
ATTORNEY GENERAL, FOR THE STATE OF CLAIFORNIA; BY WILLIAM J. BAXLEY,
ATTORNEY GENERAL OF ALABAMA, NORMAN C. GORSUCH, ATTORNEY GENERAL OF
ALASKA, GARY K. NELSON, ATTORNEY GENERAL OF ARIZONA, ARTHUR K. BOLTON,
ATTORNEY GENERAL OF GEORGIA, ED W. HANCOCK.  ATTORNEY GENERAL OF
KENTUCKY, ROBERT H. QUINN, ATTORNEY GENERAL, AND LEO SCHWARTZ, SPECIAL
ASSISTANT ATTORNEY GENERAL OF MASSACHUSETTS, JOHN C. DANFORTH, ATTORNEY
GENERAL OF MISSOURI, ALLEN I. OLSON, ATTORNEY GENERAL OF NORTH DAKOTA,
RICHARD J. ISRAEL, ATTORNEY GENERAL OF RHODE ISLAND, KIMBERLY B.
CHENEY, ATTORNEY GENERAL OF VERMONT, ROBERT I. SHEVIN, ATTORNEY GENERAL
OF FLORIDA, RICHARD C. TURNER, ATTORNEY GENERAL OF IOWA, WILLIAM J.
GUSTE, ATTORNEY GENERAL OF LOUISIANA, A. F. SUMMER, ATTORNEY GENERAL OF
MISSISSIPPI, LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, LARRY
DERRYBERRY, ATTORNEY GENERAL OF OKLAHOMA, KERMIT A. SANDE, ATTORNEY
GENERAL OF SOUTH DAKOTA, ANDREW P. MILLER, ATTORNEY GENERAL OF
VIRGINIA, AND DAVID I. SHAPIRO AND JAMES VANR.  SPRINGER FOR THE STATE
OF ALABAMA ET AL.; BY SHELDON V. BURMAN FOR THE NEW YORK STATE TRIAL
LAWYERS ASSN.; BY EDWARD I. POLLOCK, LEONARD SACKS, AND STEPHEN I.
ZETTERBERG FOR THE CALIFORNIA TRIAL LAWYERS ASSN.; BY MELVIN L. WULF
AND BURT NEUBORNE FOR THE AMERICAN CIVIL LIBERTIES UNION; BY JACK
GREENBERG, JAMES M. NABRIT III, CHARLES STEPHEN RALSTON, AND ERIC
SCHNAPPER FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.; AND
BY ALAN B. MORRISON FOR THE PUBLIC CITIZEN AND CONSUMERS UNION OF
UNITED STATES, INC. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY WILLIAM C.
FALKENHAINER AND ROLLIN E. WOODBURY FOR SOUTHERN CALIFORNIA EDISON CO.,
AND BY SAMUEL E. GATES, DWIGHT B. BUSS, RALPH L. MCAFEE, CARL J.
SCHUCK, MARVIN SCHWARTZ, WILLIAM SIMON, GEORGE A. SPIEGELBERG, AND
PHILIP H. STRUBING FOR THE AMERICAN COLLEGE OF TRIAL LAWYERS. 
..END :























HOLDER V. BANKS, 417 U.S. 187 


       HOLDER, U.S. DISTRICT JUDGE V. BANKS

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

      SEVENTH CIRCUIT

        NO. 73 - 841.  ARGUED APRIL 24, 1974.--DECIDED MAY 28,
1974;

           CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 


PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

KARL J. STIPHER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE FREDERICK P. BAMBERGER, HAROLD H. BREDELL, JOHN E. EARLY,
ERLE A. KIGHTLINGER, R. M. KROGER, C. WENDELL MARTIN, JAMES L. MILLER,
WAYNE C. PONADER, FLOYD W. BURNS, C. B. DUTTON, THOMAS M. SCANLON, BEN
J. WEAVER, HOWARD S. YOUNG, JR., AND NORMAN P. ROWE. 

MORTON STAVIS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE WILLIAM M. KUNSTLER AND DORIS PETERSON. 

MELVIN L. WULF, LEON FRIEDMAN, AND JOEL M. GORA FILED A BRIEF FOR
THE AMERICAN CIVIL LIBERTIES UNION ET AL. AS AMICI CURIAE URGING
AFFIRMANCE. 
..END :























ALLEE V. MEDRANO, 416 U.S. 802 


       ALLEE ET AL. V. MEDRANO ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF TEXAS

        NO. 72 - 1125.  ARGUED NOVEMBER 13, 1973--DECIDED MAY 20,
1974; (347 F. SUPP. 605, AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.) 


    APPELLEE UNION COMMITTEE AND THE INDIVIDUAL APPELLEES, WHO

  ATTEMPTED FROM JUNE 1966 TO JUNE 1967 TO UNIONIZE FARMWORKERS AND

  PERSUADE THEM TO SUPPORT OR JOIN A STRIKE, WERE SUBJECTED TO

  PERSISTENT HARASSMENT AND VIOLENCE BY APPELLANTS AND OTHER LAW

  ENFORCEMENT OFFICERS.  IN JULY 1967 A STATE COURT ISSUED A

  TEMPORARY INJUNCEION AGAINST APPELLEES, PROSCRIBING PICKETING ON

  OR NEAR PROPERTY OF ONE OF THE MAJOR EMPLOYERS IN THE AREA. 

  APPELLEES BROUGHT THIS FEDERAL CIVIL RIGHTS ACTION, 42 U.S.C.

  1983, 1985, ATTACKING THE CONSTITUTIONALITY OF CERTAIN TEXAS

  STATUTES AND ALLEGING THAT APPELLANTS AND THE OTHER OFFICERS

 CONSPIRED TO DEPRIVE APPELLEES OF THEIR FIRST AND FOURTEENTH

  AMENDMENT RIGHTS.  A THREE-JUDGE DISTRICT COURT DECLARED FIVE OF

  THE STATUTES UNCONSTITUTIONAL AND ENJOINED THEIR ENFORCEMENT, AND

  IN ADDITION PERMANENTLY ENJOINED APPELLANTS AND THE OTHER

  OFFICERS FROM INTIMIDATING APPELLEES IN THEIR ORGANIZATIONAL

  EFFORTS.  HELD: 

     (1) THE STATE COURT INJUNCTION DID NOT MOOT THE CONTROVERSY,

 SINCE IT WAS THE APPELLANTS' AND THE OTHER OFFICERS' CONDUCT, NOT

  THE INJUNCTION, THAT ENDED THE STRIKE.  NOR HAS THE CASE BECOME

  MOOT BECAUSE APPELLEES ABANDONED THEIR UNIONIZATION EFFORTS AS A

  RESULT OF THE HARASSMENT, FOR APPELLEE UNION STILL IS A LIVE

  ORGANIZATION WITH A CONTINUING GOAL OF UNIONIZING FARMWORKERS. 

  PP. 809 - 811. 

    2.  THE PORTION OF THE DISTRICT COURT'S DECREE ENJOINING POLICE

  INTIMIDATION OF THE APPELLEES WAS AN APPROPRIATE EXERCISE OF THE

  COURT'S EQUITABLE POWERS.  PP. 811 - 816. 

     (A) THE THREE-JUDGE COURT COULD PROPERLY CONSIDER THE QUESTION

  OF POLICE HARASSMENT UNDER CONCEDEDLY CONSTITUTIONAL STATUTES AND

  GRANT RELIEF IN THE EXERCISE OF JURISDICTION ANCILLARY TO THAT

  CONFERRED BY THE CONSTITUTIONAL ATTACK ON THE STATUTES THAT

  PLAINLY REQUIRED A THREE-JUDGE COURT.  PP. 811 - 812. 

     (B) THIS PORTION OF THE DECREE DID NOT INTERFERE WITH PENDING

  STATE PROSECUTIONS, SO THAT SPECIAL CONSIDERATIONS RELEVANT TO

  CASES LIKE YOUNGER V. HARRIS, 401 U.S. 37, DO NOT APPLY, NOR WAS

THERE ANY REQUIREMENT THAT APPELLEES FIRST EXHAUST STATE REMEDIES

  BEFORE BRINGING THEIR FEDERAL SUIT.  P. 814. 

   (C) IRREPARABLE INJURY WAS SHOWN AS EVIDENCED BY THE DISTRICT

  COURT'S UNCHALLENGED FINDINGS OF POLICE INTIMIDATION, AND NO

  REMEDY AT LAW WOULD ADEQUATELY PROTECT APPELLEES FROM SUCH

  INTIMIDATION IN THEIR LAWFUL EFFORT TO UNIONIZE THE FARMWORKERS. 

  ##HC 803 PP. 814 - 815. 

(D) WHERE THERE IS A PERSISTENT PATTERN OF POLICE MISCONDUCT,

  AS OPPOSED TO ISOLATED INCIDENTS, INJUNCTIVE RELIEF IS

  APPROPRIATE.  HAGUE V. CIO, 307 U.S. 496.  PP. 815 - 816. 

     3.  THE PORTION OF THE DISTRICT COURT'S DECREE HOLDING FIVE OF

  THE STATE STATUTES UNCONSTITUTIONAL WITH ACCOMPANYING INJUNCTIVE

  RELIEF MUST BE VACATED.  PP. 816 - 820. 

     (A) WHERE THREE OF THE STATUTES HAVE BEEN REPEALED AND
REPLACED

  BY MORE NARROWLY DRAWN PROVISIONS SINCE THE DISTRICT COURT'S

  DECISION AND THERE ARE NO PENDING PROSECUTIONS UNDER THEM, THE

  JUDGMENT RELATING TO THESE STATUTES WILL HAVE BECOME MOOT.  SINCE

  IT CANNOT BE DEFINITELY DETERMINED FROM THE DISTRICT COURT'S

  OPINION OR THE RECORD WHETHER THERE ARE PENDING PROSECUTIONS OR

  EVEN WHETHER THE DISTRICT COURT INTENDED TO ENJOIN THEM IF THERE

  WERE, THE CASE IS REMANDED FOR FURTHER FINDINGS.  IF THERE ARE NO

  PENDING PROSECUTIONS, THE COURT SHOULD VACATE THE JUDGMENT AS TO

  THE SUPERSEDED STATUTES.  IF SOME ARE PENDING, THE COURT SHOULD

  MAKE FINDINGS AS TO WHETHER THEY WERE BROUGHT IN BAD FAITH, AND,

  IF SO, ENTER AN APPROPRIATE DECREE SUBJECT TO REVIEW BOTH AS TO

  THE PROPRIETY OF FEDERAL COURT INTERVENTION AND AS TO THE MERITS

  OF ANY HOLDING STRIKING DOWN THE STATUTES.  PP. 818 - 820. 

(B) THE CASE IS REMANDED FOR A DETERMINATION AS TO WHETHER

  THERE ARE PENDING PROSECUTIONS UNDER THE TWO REMAINING STATUTES,

  AND FOR FURTHER FINDINGS AND RECONSIDERATION IN LIGHT OF STEFFEL

  V. THOMPSON, 415 U.S. 452.  IF THERE ARE PENDING PROSECUTIONS,

  THE COURT SHOULD DETERMINE WHETHER THEY WERE BROUGHT IN BAD

  FAITH.  IF THERE ARE ONLY THREATENED PROSECUTIONS AND ONLY

  DECLARATORY RELIEF IS SOUGHT, THEN STEFFEL CONTROLS AND NO

  YOUNGER SHOWING NEED BE MADE.  P. 820. 

     DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BRENNAN, STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED.  BURGER,

  C.J., FILED AN OPINION CONCURRING IN THE RESULT IN PART AND

  DISSENTING IN PART, IN WHICH WHITE AND REHNQUIST, JJ., JOINED,

  POST, P. 821.  POWELL, J., TOOK NO PART IN THE DECISION OF THE

  CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL RIGHTS ACTION, /1/  42 U.S.C. 1983, 1985, ATTACKING
THE CONSTITUTIONALITY OF CERTAIN TEXAS STATUTES, BROUGHT BY APPELLEES. 
IT ALLEGES THAT THE DEFENDANTS, MEMBERS OF THE TEXAS RANGERS AND THE
STARR COUNTY, TEXAS, SHERIFF'S DEPARTMENT, AND A JUSTICE OF THE PEACE
IN STARR COUNTY, CONSPIRED TO DEPRIVE APPELLEES OF THEIR RIGHTS UNDER
THE FIRST AND FOURTEENTH AMENDMENTS, BY UNLAWFULLY ARRESTING,
DETAINING, AND CONFINING THEM WITHOUT DUE PROCESS AND WITHOUT LEGAL
JUSTIFICATION, AND BY UNLAWFULLY THREATENING, HARASSING, COERCING, AND
PHYSICALLY ASSAULTING THEM TO PREVENT THEIR EXERCISE OF THE RIGHTS OF
FREE SPEECH AND ASSEMBLY.  A THREE-JUDGE COURT WAS CONVENED WHICH
DECLARED FIVE TEXAS STATUTES UNCONSTITUTIONAL AND ENJOINED THEIR
ENFORCEMENT.  347 F. SUPP. 605, 634.  IN ADDITION, THE COURT
PERMANENTLY ENJOINED THE DEFENDANTS FROM A VARIETY OF UNLAWFUL
PRACTICES WHICH FORMED THE CORE OF THE ALLEGED CONSPIRACY.  FIVE
DEFENDANTS, ALL MEMBERS OF THE TEXAS RANGERS, HAVE PERFECTED THIS
APPEAL.  28 U.S.C. 1253.  THE APPELLEES CONSIST OF THE UNITED FARM
WORKERS ORGANIZING COMMITTEE, CERTAIN NAMED PLAINTIFFS, /2/  AND THE
CLASS THEY REPRESENTED IN DISTRICT COURT ON WHOSE BEHALF THE JUDGMENT
WAS ALSO RENDERED.  /3/ 

FROM JUNE 1966 UNTIL JUNE 1967, THE APPELLEES WERE ENGAGED IN AN
EFFORT TO ORGANIZE INTO THE UNION THE PREDOMINANTLY MEXICAN-AMERICAN
FORMWORKERS OF THE LOWER RIO GRANDE VALLEY.  THIS EFFORT LED TO
CONSIDERABLE LOCAL CONTROVERSY WHICH BROUGHT APPELLEES INTO CONFLICT
WITH THE STATE AND LOCAL AUTHORITIES, AND THE DISTRICT COURT FOUND THAT
AS A RESULT OF THE UNLAWFUL PRACTICES ENJOINED BELOW THE ORGANIZING
EFFORTS WERE CRUSHED.  THIS LAWSUIT FOLLOWED. 

THE FACTUAL FINDINGS OF THE DISTRICT COURT ARE NOT CHALLENGED HERE. 
IN EARLY JUNE 1966, AT THE BEGINNING OF THE ORGANIZING EFFORT, EUGENE
NELSON, ONE OF THE STRIKERS' PRINCIPAL LEADERS, STATIONED HIMSELF AT
THE INTERNATIONAL BRIDGE IN ROMA, TEXAS, ATTEMPTING TO PERSUADE
LABORERS FROM MEXICO TO SUPPORT THE STRIKE.  HE WAS TAKEN INTO CUSTODY
BY THE STARR COUNTY SHERIFF, DETAINED FOR FOUR HOURS, QUESTIONED ABOUT
THE STRIKE, AND WAS TOLD HE WAS UNDER INVESTIGATION BY THE FEDERAL
BUREAU OF INVESTIGATION.  NO CHARGES WERE EVER FILED AGAINST HIM.  347
F. SUPP., AT 612. 

IN OCTOBER 1966, ABOUT 25 UNION MEMBERS AND SYMPATHIZERS PICKETED
ALONGSIDE THE RANCHO GRANDE FARMS EXHORTING THE LABORERS TO JOIN THE
STRIKE; THEY WERE ORDERED TO DISPERSE BY THE SHERIFFS ALTHOUGH THEIR
PICKETING WAS PEACEFUL.  WHEN RAYMOND CHANDLER, ONE OF THE UNION
LEADERS, ENGAGED AN OFFICER IN CONVERSATION CONTESTING THE VALIDITY OF
THE ORDER, HE WAS ARRESTED UNDER ART. 474 OF THE TEXAS PENAL CODE FOR
BREACH OF THE PEACE.  ALTHOUGH THE MAXIMUM PUNISHMENT FOR THIS OFFENSE
IS A $200 FINE, BOND WAS SET FOR CHANDLER AT $500.  WHEN TWO OF
CHANDLER'S FRIENDS CAME TO THE COURTHOUSE TO MAKE BOND, THEY WERE
VERBALLY ABUSED, TOLD THEY HAD NO BUSINESS THERE, AND THAT IF THEY DID
NOT LEAVE THEY WOULD BE PLACED IN JAIL THEMSELVES.  347 F. SUPP. AT 612
- 613.  THEY LEFT.  /4/ 

LATER THAT MONTH, WHEN THE PRESIDENT OF THE LOCAL UNION AND OTHERS
WERE IN THE COURTHOUSE UNDER ARREST, THEY SHOUTED "VIVA LA HUELGA" IN
SUPPORT OT THE STRIKE.  A DEPUTY SHERIFF STRUCK THE UNION OFFICIAL AND
HELD A GUN AT HIS FOREHEAD, ORDERING HIM NOT TO REPEAT THOSE WORDS IN
THE COURTHOUSE BECAUSE IT WAS A "RESPECTFUL PLACE."  ID., AT 613.  AS
THE STRIKE CONTINUED THROUGH THE YEAR AND THE TEXAS RANGERS WERE CALLED
IN TO THE LOCAL AREA, THERE WERE MORE SERIOUS INCIDENTS OF VIOLENCE. 
IN MAY 1967 SOME UNION PICKETS GATHERED IN MISSION, TEXAS, TO PROTEST
THE CARRYING OF PRODUCE FROM THE VALLEY ON THE MISSOURI-PACIFIC
RAILROAD.  THEY WERE INITIALLY CHARGED WITH TRESPASS ON PRIVATE
PROPERTY; THIS WAS CHANGED TO UNLAWFUL ASSEMBLY, AND FINALLY WAS
SUPERSEDED BY COMPLAINTS OF SECONDARY PICKETING.  THE REVEREND EDGAR
KRUEGER AND MAGDELENO DIMAS WERE TAKEN INTO CUSTODY BY THE RANGERS.  AS
ANOTHER TRAIN PASSED, THE RANGERS HELD THESE TWO PRISONERS' BODIES SO
THAT THEIR FACES WERE ONLY INCHES FROM THE TRAIN.  347 F. SUPP., AT
615. 

A FEW WEEKS LATER THE RANGERS SOUGHT TO ARREST DIMAS FOR ALLEGEDLY
BRANDISHING A GUN IN A THREATENING MANNER, AND FOUND HIM BY "TAILING"
CHANDLER AND MORENO, ALSO UNION MEMBERS.  CHANDLER WAS ARRESTED WITH NO
EXPLANATION AS WAS MORENO, WHO WAS ALSO ASSAULTED BY CAPTAIN ALLEE AT
THE TIME.  THESE TWO MEN WERE LATER CHARGED WITH ASSISTING DIMAS TO
EVADE ARREST, ALTHOUGH BY ALLEE'S OWN TESTIMONY THEY WERE NEVER TOLD
DIMAS WAS SOUGHT BY THE RANGERS.  INDEED, BECAUSE THE OFFICERS HAD NO
ARREST WARRANT OR FORMAL COMPLAINT AGAINST DIMAS, THEY COULD NOT THEN
ARREST HIM, SO THEY PUT IN A CALL TO A JUSTICE OF THE PEACE WHO ARRIVED
ON THE SCENE AND FILLED OUT A WARRANT ON FORMS HE CARRIED WITH HIM. 
THE RANGES THEN BROKE INTO THE HOUSE AND ARRESTED DIMAS AND RODRIGUEZ,
ANOTHER UNION MEMBER, IN A VIOLENT AND BRUTAL FASHION.  DIMAS WAS
HOSPITALIZED FOUR DAYS WITH A BRAIN CONCUSSION, AND X-RAYS REVEALED
THAT HE HAD BEEN STRUCK SO HARD ON THE BACK THAT HIS SPINE WAS CURVED
OUT OF SHAPE.  RODRIGUEZ HAD CUTS AND BRUISES ON HIS EAR, ELBOW, UPPER
ARM, BACK, AND JAW; ONE OF HIS FINGERS WAS BROKEN AND THE NAIL TORN
OFF.  ID., AT 616 - 617. 

EARLIER, IN MAY, NELSON HAD GONE DOWN TO THE SHERIFF'S OFFICE,
ACCORDING TO APPELLEES, TO COMPLAIN THAT THE RANGERS WERE ACTING AS A
PRIVATE POLICE FORCE FOR ONE OF THE FARMS IN THE AREA.  THE THREE-JUDGE
DISTRICT COURT FOUND THAT NELSON WAS THEN ARRESTED AND CHARGED WITH
THREATENING THE LIFE OF CERTAIN TEXAS RANGERS, DESPITE THE FACT THAT
CAPTAIN ALLEE CONCEDED THERE WAS NO SERIOUS THREAT.  ALLEE HAD DIRECTED
THAT THE CHARGES BE FILED TO PROTECT THE RANGERS FROM CENSURE IF
SOMETHING HAPPENED TO NELSON.  ID., AT 615. 

DURING THIS ENTIRE PERIOD THE STARR COUNTY SHERIFF'S OFFICE
REGULARLY DISTRIBUTED AN AGRESSIVE ANTI-UNION NEWSPAPER.  A DEPUTY
DRIVING AN OFFICIAL CAR WOULD PICK UP THE PAPERS EACH WEEK AND BRING
THEM BACK TO THE SHERRIFF'S OFFICE; THEY WOULD THEN BE DISTRIBUTED BY
VARIOUS DEPUTIES.  IF., AT 617.  THE DISTRICT COURT INCLUDED COPIES OF
THE PAPER IN AN APPENDIX TO ITS OPINION; A TYPICAL HEADLINE WAS "ONLY
MEXICAN SUBVERSIVE GROUP COULD SYMPATHIZE WITH VALLEY FARM WORKERS." 
THE VIEWS OF THE TEXAS RANGERS WERE SIMILARLY EXPLICIT.  ON A NUMBER OF
OCCASIONS THEY OFFERED FARM JOBS OT THE UNION LEADERS, AT THE UNION
DEMAND WAGE, IN RETURN FOR AN END TO THE STRIKE.  ID., AT 613, 614. 
THE RANGERS TOLD ONE UNION MEMBER THAT THEY HAD BEEN CALLED INTO THE
AREA TO BREAK THE STRIKE AND WOULD NOT LEAVE UNTIL THEY HAD DONE SO.
ID., AT 613. 

AMONG OTHER FINDINGS OF THE THREE-JUDGE DISTRICT COURT WERE THAT THE
DEFENDANTS SELECTIVELY ENFORCED THE UNLAWFUL ASSEMBLY LAW, ART. 439 OF
THE TEXAS PENAL CODE, TREATING AS CRIMINAL AN INOFFENSIVE UNION
GATHERING, 347 F. SUPP., AT 613; SOLICITED CRIMINAL COMPLAINTS AGAINST
APPELLEES FROM PERSONS WITH NO KNOWLEDGE OF THE ALLEGED OFFENSE, ID.,
AT 615; AND FILED BASELESS CHARGES AGAINST ONE APPELLEE FOR
IMPERSONATING AN OFFICER.  /5/ 

THE THREE-JUDGE DISTRICT COURT FOUND THAT THE LAW ENFORCEMENT
OFFICIALS "TOOK SIDES IN WHAT WAS ESSENTIALLY A LABOR-MANAGEMENT
CONTROVERSY."  ID., AT 618.  ALTHOUGH THERE WAS VIRTUALLY NO EVIDENCE
OF ASSAULT UPON ANYONE BY UNION PEOPLE DURING THE STRIKE, THE OFFICIALS
"CONCLUDED THAT THE MAINTENANCE OF LAW AND ORDER WAS INEXTRICABLY BOUND
TO PREVENTING THE SUCCESS OF THE STRIKE."  IBID.  THUS, THESE WERE NOT
A SERIES OF ISOLATED INCIDENTS BUT A PREVAILING PATTERN THROUGHOUT THE
CONTROVERSY. 

I 

IT IS ARGUED THAT A STATE INJUNCTION /6/  AGAINST THE APPELLEES,
ISSUED ON JULY 11, 1967, ENDED THE STRIKE AND THUS RENDERED THE
CONTROVERSY MOOT.  THAT IS NOT THE CASE. 

AFTER SUMMARIZING THE DEFENDANTS' UNLAWFUL PRACTICES, THE DISTRICT
COURT CONCLUDED THAT "(THE UNION'S EFFORTS COLLAPSED UNDER THIS
PRESSURE IN JUNE OF 1967 AND THIS SUIT WAS FILED IN AN EFFORT TO SEEK
RELIEF."  IBID.  THUS IT WAS THE DEFENDANTS' CONDUCT, WHICH IS THE
SUBJECT OF THIS SUIT, THAT ENDED THE STRIKE, NOT THE STATE COURT
INJUNCTION, WHICH CAME AFTERWARD.  WITH THE PROTECTION OF THE FEDERAL
COURT DECREE, APPELLEES COULD AGAIN BIGIN THEIR EFFORTS. 

MOREOVER, THE STATE COURT INJUNCTION IS QUITE LIMITED.  IT
PROSCRIBES PICKETING BY THE APPELLEES AND THOSE ACTING IN CONCERT WITH
THEM ONLY ON OR NEAR PROPERTY OWNED BY LA CASITA FARMS, INC., THE
PLAINTIFF IN THE STATE CASE.  BUT THE APPELLANTS AGREED AT ORAL
ARGUMENT THAT LA CASITA IS ONLY ONE OF THE MAJOR EMPLOYERS IN THE AREA,
AND SOME OF THE INCIDENTS INVOLVED OCCURRED AT OTHER LOCATIONS. 
MOREOVER THE STATE COURT INJUNCTION WAS ONLY TEMPORARY, AND ON APPEAL
THE TEXAS COURT OF CIVIL APPEALS, AFTER FINDING THAT MOST OF THE TRIAL
COURT FINDINGS WERE UNSUPPORTED, AFFIRMED ONLY BECAUSE OF THE LIMITED
NATURE OF REVIEW, UNDER TEXAS LAW, OF A TEMPORARY INJUNCTION.  THE
APPELLATE COURT CONCLUDED THAT "NOTHING IN THIS OPINION IS TO BE TAKEN
AS A RULING THAT THE EVIDENCE BEFORE US WOULD SUPPORT THE ISSUANCE OF A
PERMANENT INJUNCTION . . . ."  UNITED FARM WORKERS ORGANIZING COMM. V.
LA CASITA FARMS, INC., 439 S.W. 2D 398, 403.  WE WERE ADVISED AT ORAL
ARGUMENT THAT NO PERMANENT INJUNCTION AGAINST PICKETING HAS EVER BEEN
ISSUED, AND WE CANNOT ASSUME THAT ONE WILL BE. 

NOR CAN IT BE ARGUED THAT THE CASE HAS BECOME MOOT BECAUSE APPELLEES
HAVE ABANDONED THEIR EFFORTS AS A RESULT OF THE VERY HARASSMENT THEY
SOUGHT TO RESTRAIN BY THIS SUIT.  THERE CAN BE NO REQUIREMENT THAT
APPELLEES CONTINUE TO SUBJECT THEMSELVES TO PHYSICAL VIOLENCE AND
UNLAWFUL RESTRICTIONS UPON THEIR LIBERTIES THROUGHOUT THE PENDENCY OF
THE ACTION IN ORDER TO PRESERVE IT AS A LIVE CONTROVERSY.  IN THE FACE
OF APPELLANTS' CONDUCT, APPELLEES SOUGHT TO VINDICATE THEIR RIGHTS IN
THE FEDERAL COURT.  IN JUNE 1967 THEY RECHANNELED THEIR EFFORTS FROM
DIRECT ATTEMPTS AT UNIONIZING THE WORKERS TO SEEKING THE PROTECTION OF
A FEDERAL DECREE, AND HENCE THEY BROUGHT THIS SUIT.  IN THEIR AMENDED
COMPLAINT, FILED IN OCTOBER 1967, THEY CHARGED THAT THE DEFENDANTS'
CONDUCT, AIMED AT ALL THOSE WHO MAKE COMMON CAUSE WITH APPELLEES,
"CHILLED) THE WILLINGNESS OF PEOPLE TO EXERCISE THEIR FIRST AMENDMENT
RIGHTS," RESULTING, AS THE THREE-JUDGE DISTRICT COURT FOUND, IN THE
"COLLAPSE" OF THE UNION DRIVE.  APPELLEES CONTINUED TO PROSECUTE THE
SUIT AND WON A JUDGMENT IN DECEMBER 1972.  WE MAY NOT ASSURE THAT
BECAUSE DURING THIS PERIOD THEY DIRECTED THEIR EFFORTS TO THE JUDICIAL
BATTLE, THEY HAVE ABANDONED THEIR PRINCIPAL CAUSE.  RATHER THE VERY
PURPOSE OF THE SUIT WAS TO SEEK PROTECTION OF THE FEDERAL COURT SO THAT
THE EFFORTS AT UNIONIZATION COULD BE RENEWED.  IT IS SETTLED THAT AN
ACTION FOR AN INJUNCTION DOES NOT BECOME MOOT MERELY BECAUSE THE
CONDUCT COMPLAINED OF HAS TERMINATED, IF THERE IS A POSSIBILITY OF
RECURRENCE, SINCE OTHERWISE THE DEFENDANTS "WOULD BE FREE TO RETURN TO
'.  . . (THEIR) OLD WAYS.'"  GRAY V. SANDERS, 372 U.S. 368, 376;
WALLING V. HELMERICH & PAYNE, INC., 323 U.S. 37, 43; UNITED STATES V.
W.T. GRANT CO., 345 U.S. 629, 632; NLRB V. RAYTHEON CO., 398 U.S. 25,
27; SEC V. MEDICAL COMMITTEE FOR HUMAN RIGHTS, 404 U.S. 403, 406.  THE
APPELLEE UNION REMAINS VERY MUCH A LIVE ORGANIZATION AND ITS GOAL
CONTINUES TO BE THE UNIONIZATION OF FARMWORKERS.  THE ESSENTIAL
CONTROVERSY IS THEREFORE NOT MOOT, BUT VERY MUCH ALIVE. 

      II 

WE FIRST CONSIDER THE PROVISIONS OF THE FEDERAL COURT DECREE
ENJOINING POLICE INTIMIDATION OF THE APPELLEES.  /7/  THIS PART OF THE
DECREE COMPLEMENTS THE OTHER RELIEF, IN THAT IT PLACES BOUNDARIES ON
ALL POLICE CONDUCT, NOT JUST THAT WHICH IS BASED UPON STATE STATUTES
STRUCK DOWN BY THE FEDERAL COURT.  THE COMPLAINT CHARGED THAT THE
ENJOINED CONDUCT WAS BUT ONE PART OF A SINGLE PLAN BY THE DEFENDANTS,
AND THE DISTRICT COURT FOUND A PERVASIVE PATTERN OF INTIMIDATION IN
WHICH THE LAW ENFORCEMENT AUTHORITIES SOUGH TO SUPPRESS SPPELLEES'
CONSTITUTIONAL RIGHTS.  IN THIS BLUNDERBUSS EFFORT THE POLICE NOT ONLY
RELIED ON STATUTES THE DISTRICT COURT FOUND CONSTITUTIONALLY DEFICIENT,
BUT CONCURRENTLY EXERCISED THEIR AUTHORITY UNDER VALID LAWS IN AN
UNCONSTITUTIONAL MANNER.  WHILE IT IS ARGUED THAT A THREE-JUDGE
DISTRICT COURT COULD NOT PROPERLY BE CONVENED IF POLICE HARASSEMENT
UNDER CONCEDEDLY CONSTITUTIONAL STATUTES WERE THE ONLY QUESTION
PRESENTED TO IT, IT COULD PROPERLY CONSIDER THE QUESTION AND GRANT
RELIEF IN THE EXERCISE OF JURISDICTION ANCILLARY TO THAT CONFERRED BY
THE CONSTITUTIONAL ATTACK ON THE STATE STATUTES WHICH PLAINLY REQUIRED
A THREE-JUDGE COURT.  /8/ 

THAT PART OF THE DECREE IN QUESTION HERE PROHIBITS APPELLANTS FROM
USING THEIR AUTHORITY AS PEACE OFFICERS TO ARREST, STOP, DISPERSE OR
IMPRISON APPELLEES, OR OTHERWISE INTERFERE WITH THEIR ORGANIZATIONAL
EFFORTS, WITHOUT "ADEQUATE CAUSE."  ADEQUATE CAUSE IS DEFINED AS (1)
ACTUAL OBSTRUCTION OF PUBLIC OR PRIVATE PASSWAYS CAUSING UNREASONABLE
INTERFERENCE, (2) FORCE OR VIOLENCE, OR THREAT THEREOF, ACTUALLY
COMMITTED BY AN APPELLEE, OR THE AIDING AND ABETTING OF SUCH CONDUCT,
OR, (3) PROBABLE CAUSE TO BELIEVE IN GOOD FAITH THAT A CRIMINAL LAW OF
THE STATE OF TEXAS HAS BEEN VIOLATED, OTHER THAN THE ONES STRUCK DOWN
IN THE REMAINDER OF THE DECREE.  ON ITS FACE THE INJUNCTION DOES NO
MORE THAN REQUIRE THE POLICE TO ABIDE BY CONSTITUTIONAL REQUIREMENTS;
AND THERE IS NO CONTENTION THAT THIS DECREE WOULD INTERFERE WITH LAW
ENFORCEMENT BY RESTRAINING THE POLICE FROM ENGAGING IN CONDUCT THAT
WOULD BE OTHERWISE LAWFUL.     THUS THE ONLY QUESTION BEFORE US IS
WHETHER THIS WAS AN APPROPRIATE EXERCISE OF THE FEDERAL COURT'S
EQUITABLE POWERS.  WE FIRST NOTE THAT THIS PORTION OF THE DECREE
CREATES NO INTERFERENCE WITH PROSECUTIONS PENDING IN THE STATE COURTS,
SO THAT THE SPECIAL CONSIDERATIONS RELEVANT TO CASES LIKE YOUNGER V.
HARRIS, 401 U.S. 37, DO NOT APPLY HERE.  NOR WAS THERE ANY REQUIREMENT
THAT APPELLEES FIRST EXHAUST STATE REMEDIES BEFORE BRINGING THEIR
FEDERAL CLAIMS UNDER THE CIVIL RIGHTS ACT OF 1871 TO FEDERAL COURT. 
MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668; MONROE V. PAPE, 365 U.S.
167.  NONETHELESS THERE REMAINS THE NECESSITY OF SHOWING IRREPARABLE
INJURY, "THE TRADITIONAL PREREQUISITE TO OBTAINING AN INJUNCTION" IN
ANY CASE.  YOUNGER, SUPRA, AT 46. 

SUCH A SHOWING WAS CLEARLY MADE HERE AS THE UNCHALLENGED FINDINGS OF
THE DISTRICT COURT SHOW.  THE APPELLEES SOUGHT TO DO NO MORE THAN
ORGANIZE A LAWFUL UNION TO BETTER THE SITUATION OF ONE OF THE MOST
ECONOMICALLY OPPRESSED CLASSES OF WORKERS IN THE COUNTRY.  BECAUSE OF
THE INTIMIDATION BY STATE AUTHORITIES, THEIR LAWFUL EFFORT WAS
CRUSHED.  THE WORKERS, AND THEIR LEADERS AND ORGANIZERS WERE PLACED IN
FEAR OF EXERCISING THEIR CONSTITUTIONALLY PROTECTED RIGHTS OF FREE
EXPRESSION, ASSEMBLY, AND ASSOCIATION.  POTENTIAL SUPPORTERS OF THEIR
CAUSE WERE PLACED IN FEAR OF LENDING THEIR SUPPORT.  IF THEY WERE TO BE
ABLE TO REGAIN THOSE RIGHTS AND CONTINUE FURTHERING THEIR CAUSE BY
CONSTITUTIONAL MEANS, THEY REQUIRED PROTECTION FROM APPELLANTS'
CONCERTED CONDUCT.  NO REMEDY AT LAW WOULD BE ADEQUATE TO PROVIDE SUCH
PROTECTION.  DOMBROWSKI V. PFISTER, 380 U.S. 479, 485 - 489. 

ISOLATED INCIDENTS OF POLICE MISCONDUCT UNDER VALID STATUTES WOULD
NOT, OF COURSE, BE CAUSE FOR THE EXERCISE OF A FEDERAL COURT'S
EQUITABLE POWERS.  BUT "(WE HAVE NOT HESITATED ON DIRECT REVIEW TO
STRIKE DOWN APPLICATIONS OF CONSTITUTIONAL STATUTES WHICH WE HAVE FOUND
TO BE UNCONSTITUTIONALLY APPLIED."  CAMERON V. JOHNSON, 390 U.S. 611,
620, CITING COX V. LOUISIANA, 379 U.S. 559; WRIGHT V. GEORGIA, 373 U.S.
284; EDWARDS V. SOUTH CAROLINA, 372 U.S. 229.  WHERE, AS HERE, THERE IS
A PERSISTENT PATTERN OF POLICE MISCONDUCT, INJUNCTIVE RELIEF IS
APPROPRIATE.  IN HAGUE V. COMMITTEE FOR INDUSTRIAL ORGANIZATION, 307
U.S. 496, WE AFFIRMED THE GRANTING OF SUCH RELIEF UNDER STRIKINGLY
SIMILAR FACTS.  THERE ALSO LAW ENFORCEMENT OFFICIALS SET OUT TO CRUSH A
NASCENT LABOR UNION.  THE POLICE INTERFERED WITH THE LAWFUL
DISTRIBUTION OF PAMPHLETS, PREVENTED THE HOLDING OF PUBLIC MEETINGS,
AND RAN SOME LABOR ORGANIZERS OUT OF TOWN.  THE DISTRICT COURT DECLARED
SOME OF THE MINICIPAL ORDINANCES UNCONSTITUTIONAL.  IN ADDITION, IT
ENJOINED THE POLICE FROM "EXERCISING PERSONAL RESTRAINT OVER (THE
PLAINTIFFS) WITHOUT WARRANT OR CONFINING THEM WITHOUT LAWFUL ARREST AND
PRODUCTION OF THEM FOR PROMPT JUDICIAL HEARING . . . OR INTERFERING
WITH THEIR FREE ACCESS TO THE STREETS, PARKS, OR PUBLIC PLACES OF THE
CITY," OR FROM "INTERFERING WITH THE RIGHT OF THE (PLAINTIFFS), THEIR
AGENTS AND THOSE ACTING WITH THEM, TO COMMUNICATE THEIR VIEWS AS
INDIVIDUALS TO OTHERS ON THE STREETS IN AN ORDERLY AND PEACEABLE
MANNER."  ID., AT 517.  THE LOWER FEDERAL COURTS HAVE ALSO GRANTED SUCH
RELIEF IN SIMILAR CASES.  /9/ 

FOR REASONS TO BE STATED, THAT PORTION OF THIS RELIEF BASED ON
HOLDINGS THAT CERTAIN STATE STATUTES ARE UNCONSTITUTIONAL SHOULD BE
MODIFIED.  IN ALL OTHER RESPECTS THIS PORTION OF THE DISTRICT COURT
DECREE WAS QUITE PROPER.  /10/

        III 

FINALLY, WE CONSIDER THE PORTION OF THE DISTRICT COURT'S JUDGMENT
DECLARING FIVE TEXAS STATUTES UNCONSTITUTIONAL, WITH THE ACCOMPANYING
INJUNCTIVE RELIEF.  WE HAVE BEEN PRESSED WITH ARGUMENTS BY THE
APPELLANTS THAT THESE PARTS OF THE DECREE ARE INCONSISTENT WITH THE
TEACHINGS OF YOUNGER V. HARRIS, 401 U.S. 37, AND SAMUELS V. MACKELL,
401 U.S. 66.  FOR REASONS EXPLAINED BELOW, IT IS UNNECESSARY TO REACH
THESE CONTENTIONS AT PRESENT. 

YOUNGER AND ITS COMPANION CASES ARE GROUNDED UPON THE SPECIAL
CONSIDERATIONS WHICH APPLY WHEN A FEDERAL COURT IS ASKED TO INTERVENE
WITH PENDING STATE CRIMINAL PROSECUTIONS.  STEFFEL V. THOMPSON, 415
U.S. 452.  ALTHOUGH BOTH PARTIES HERE HAVE ASSUMED THE RELEVANCE OF
YOUNGER, WE HAVE BEEN UNABLE TO FIND ANY PRECISE INDICATION IN THE
DISTRICT COURT OPINION OR IN THE RECORD THAT THERE WERE PENDING
PROSECUTIONS AT THE TIME OF THE DISTRICT COURT DECISION.  INDEED, THE
CHRONOLOGY OF EVENTS GIVES RISE TO THE CONTRARY INFERENCE.  ALTHOUGH
THE DISTRICT COURT ISSUED ITS OPINION IN DECEMBER 1972, THE UNION
EFFORT WHICH WAS THE SOURCE OF THIS CONTEST HAD BEEN INTERRUPTED MORE
THAN FIVE YEARS EARLIER.  IT SEEMS LIKELY THAT ANY STATE PROSECUTIONS
INITIATED DURING THE EFFORT WOULD HAVE BEEN CONCLUDED BY THAT TIME
UNLESS THEY HAD BEEN RESTRAINED BY A TEMPORARY ORDER OF THE FEDERAL
COURT.  BUT THERE IS NO INDICATION THAT SUCH AN ORDER WAS EVER ISSUED. 
MOREOVER, THE INJUNCTIVE RELIEF GRANTED DOES NOT APPEAR TO BE DIRECTED
AT RESTRAINING ANY STATE COURT PROCEEDINGS.  /11/ 

IF IN FACT THERE WERE NO PENDING PROSECUTIONS, THE RELIEF COULD HAVE
IMPACT ONLY ON FUTURE EVENTS IN WHICH THE CHALLENGED STATUTES MIGHT BE
INVOKED BY THE APPELLANTS.  SINCE THIS REMAINS A LIVE, CONTINUING
CONTROVERSY, SUCH RELIEF WOULD ORDINARILY BE APPROPRIATE IF JUSTIFIED
BY THE MERITS OF THE CASE.  GRAY V. SANDERS, 372 U.S. 368, 376.  BUT
HERE WE HAVE A SPECIAL SITUATION, FOR THREE OF THE STATUTES IN QUESTION
HAVE SINCE BEEN REPEALED BY THE TEXAS LEGISLATURE.  ARTICLE 474 OF THE
PANAL CODE, THE BREACH-OF-THE-PEACE PROVISION, HAS BEEN REPLACED BY
42.01, 42.03, AND 42.05 IN THE NEW CODIFICATION; ART. 482, TEH ABUSIVE
LANGUAGE STATUTE, HAS BEEN REPLACED BY 42.01; AND ART. 439, THE
UNLAWFUL-ASSEMBLY PROVISION, HAS BEEN REPLACED BY 42.02.  THESE NEW
ENACTMENTS, WHICH REPLACED THE EARLIER STATUTES AS OF JANUARY 1, 1974,
ARE MORE NARROWLY DRAWN THAN THEIR PREDECESSORS.  WHATEVER THE MERITS
OF THE DISTRICT COURT'S CONCLUSIONS ON THE EARLIER STATUTES, ANY
CHALLENGE TO THE NEW PROVISIONS PRESENTS A DIFFERENT CASE. 

THUS, ALTHOUGH THERE WAS A LIVE CONTROVERSY AS TO THESE STATUTES AT
THE TIME OF TE DISTRICT COURT DECREE, IF THERE ARE NO PENDING
PROSECUTIONS UNDER THE OLD STATUTES, THE PORTIONS OF THE DISTRICT
COURT'S JUDGMENT RELATING TO THEM HAS BECOME MOOT.  /12/  BUT BECAUSE
WE CANNOT DETERMINE WITH CERTAINTY WHETHER THERE ARE PENDING
PROSECUTIONS, OR EVEN WHETHER THE DISTRICT COURT INTENDED TO ENJOIN
THEM IF THERE WERE, THE PROPER DISPOSITION IS TO REMAND THE CASE TO THE
DISTRICT COURT FOR FURTHER FINDINGS.  CF. DIFFENDERFER V. CENTRAL
BAPTIST CHURCH, 404 U.S. 412.  IF THERE ARE NO PENDING PROSECUTIONS
UNDER THESE SUPERSEDED STATUTES, THE DISTRICT COURT SHOULD VACATE BOTH
THE DECLARATORY AND INJUNCTIVE RELIEF AS TO THEM.  IF THERE ARE PENDING
PROSECUTIONS REMAINING AGAINST ANY OF THE APPELLEES, /13/  THEN THE
DISTRICT COURT SHOULD MAKE FINDINGS AS TO WHETHER THESE PARTICULAR
PROSECUTIONS WERE BROUGHT IN BAD FAITH, WITH NO GENUINE EXPECTATION OF
CONVICTION.  /14/  IF IT SO FINDS, THE COURT WILL ENTER AN APPROPRIATE
DECREE WHICH THIS COURT MAY ULTIMATELY REVIEW, BOTH AS TO THE PROPRIETY
OF FEDERAL COURT INTERVENTION IN THE CIRCUMSTANCES OF THE CASE, AND AS
TO THE MERITS OF ANY HOLDING STRIKING DOWN THE STATE STATUTES. 

AS TO THE TWO REMAINING STATUTES, TEXAS CIVIL STATUTES, ARTS. 5154D
AND 5154F, IT IS NOT NECESSARY FOR OTHER REASONS FOR US AT THIS TIME TO
REACH ANY YOUNGER QUESTIONS OR THE MERITS OF THE DECISION BELOW AS TO
THE STATUTES' CONSTITUTIONALITY.  AS TO THESE ALSO WE MUST REMAND FOR A
DETERMINATION AS TO WHETHER THERE ARE PENDING PROSECUTIONS, ALTHOUGH IF
THERE ARE NONE THE APPELLEES MIGHT STILL BE THREATENED WITH
PROSECUTIONS IN THE FUTURE SINCE THESE STATUTES ARE STILL IN FORCE. 
BUT IF THERE ARE ONLY THREATENED PROSECUTIONS, AND THE APPELLEES SOUGHT
ONLY DECLARATORY RELIEF AS TO THE STATUTES, THEN THE CASE WOULD NOT BE
GOVERNED BY YOUNGER AT ALL, BUT BY STEFFEL V. THOMPSON, 415 U.S. 452,
DECIDED THIS TERM.  /15/  THE DISTRICT COURT, OF COURSE, DID NOT HAVE
THE BENEFIT OF OUR OPINION IN STEFFEL AT THE TIME OF ITS DECISION.  WE
THEREFORE THINK IT APPROPRIATE TO VACATE THE JUDGMENT OF THE DISTRICT
COURT AS TO THESE STATUTES AND REMAND FOR FURTHER FINDINGS AND
RECONSIDERATION IN LIGHT OF STEFFEL V. THOMPSON.  IF THERE ARE PENDING
PROSECUTIONS THEN THE DISTRICT COURT SHOULD DETERMINE WHETHER THEY WERE
BROUGHT IN BAD FAITH, FOR THE PURPOSE OF HARASSING APPELLEES AND
DETERRING THE EXERCISE OF FIRST AMENDMENT RIGHTS, SO THAT ALLOWING THE
PROSECTUIONS TO PROCEED WILL RESULT IN IRREPARABLE INJURY TO THE
APPELLEES.  IF THERE ARE NO PENDING PROSECUTIONS AND ONLY DECLARATORY
RELIEF IS SOUGHT, THEN STEFFEL CLEARLY CONTROLS AND NO YOUNGER SHOWING
NEED BY MADE. 

IN SUMMARY, WE AFFIRM THE DECREE GRANTING INJUNCTIVE RELIEF AGAINST
POLICE MISCONDUCT, WITH APPROPRIATE MODIFICATIONS TO DELETE REFERENCE
TO THE FIVE STATUTES HELD UNCONSTITUTIONAL BY THE DISTRICT COURT.  WE
VACATE THE DISTRICT COURT'S JUDGMENT AS TO THOSE FIVE STATUTES, AND
REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  JURISDICTION IN THE DISTRICT COURT WAS BASED UPON 28 U.S.C.
1343, AND A THREE-JUDGE COURT WAS PROPERLY CONVENED UNDER 28 U.S.C.
2281. 

/2/  NAMED IN THE CAPTION WERE FRANCISCO MEDRANO, KATHY BAKER, DAVID
LOPEZ, GILBERT PADILLA, MAGDALENO DIMAS, AND BENJAMIN RODRIGUEZ.  OTHER
INDIVIDUAL PLAINTIFFS WERE NAMED IN THE BODY OF THE COMPLAINT. 

/3/  THE JUDGMENT WAS ALSO RENDERED FOR ALL MEMBERS OF THE PLAINTIFF
UNITED FARMWORKERS ORGANIZING COMMITTEE, AFL-CIO, AND "ALL OTHER
PERSONS WHO BECAUSE OF THEIR SYMPATHY FOR OR VOLUNTARY SUPPORT OF THE
AIMS OF SAID PLAINTIFF UNION HAVE ENGAGED IN, ARE ENGAGING IN, OR MAY
HEREAFTER ENGAGE IN PEACEFUL PICKETING, PEACEFUL ASSEMBLY, OR OTHER
ORGANIZATIONAL ACTIVITIES OF OR IN SUPPORT OF SAID PLAINTIFF UNION OR
WHO MAY ENGAGE IN CONCERT OF ACTION WITH ONE OR MORE OF PLAINTIFFS FOR
THE SOLICITATION OF AGRICULTURAL WORKERS OR OTHERS TO JOIN OR MAKE
COMMON CAUSE WITH THEM IN MATTERS PERTAINING TO THE WORK AND LABOR OF
AGRICULTURAL WORKERS." 

/4/  THIS WAS NOT THE ONLY ABUSE OF THE BONDING PROCESS.  LATER WHEN
EUGENE NELSON WAS ARRESTED FOR THREATENING THE LIFE OF A TEXAS RANGER,
SEE INFRA, AT 807, THE DEPUTY SHERIFF REJECTED FOR NO VALID REASON A
BOND HE KNEW WAS GOOD. 

/5/  DEPUTY PAUL PENA FILED THESE CHARGES AGAINST REYNALDO DE LA
CRUZ ALTHOUGH PENA HAD NEVER SEEN THE OFFENSE, WHICH WAS WEARING A
BADGE AROUND THE UNION HALL.  THE BADGE IN QUESTION WAS SHIELD TYPE,
WHILE THOSE WORN BY THE OFFICERS WERE OF THE STAR TYPE, AND PENA
CONCEDED THAT HE KNEW THAT DE LA CRUZ AND DIMAS HAD WORN SIMILAR BADGES
WHEN DIRECTING TRAFFIC AT UNION FUNCTIONS.  347 F. SUPP., AT 616. 

/6/  LA CASITA FARMS, INC. V. UNITED FARM WORKERS ORGANIZING COMM.,
DIST. CT. OF STARR COUNTY, TEXAS, NO. 3809, JULY 11, 1967.  APPELLANTS'
EXHIBIT D-1 IN THE DISTRICT COURT. 

/7/  "IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT THAT
DEFENDANTS, THEIR SUCCESSORS, AGENTS AND EMPLOYEES, AND PERSONS ACTING
IN CONCERT WITH THEM, ARE PERMANENTLY ENJOINED AND RESTRAINED FROM ANY
OF THE FOLLOWING ACTS OR CONDUCT DIRECTED TOWARD OF APPLIED TO
PLAINTIFFS AND THE PERSONS THEY REPRESENT, TO-WIT: 

"A.  USING IN ANY MANNER DEFENDANTS' AUTHORITY AS PEACE OFFICERS FOR
THE PUSPOSE OF PREVENTING OR DISCOURAGING PEACEFUL ORGANIZATIONAL
ACTIVITIES WITHOUT ADEQUATE CAUSE. 

"B.  INTERFERING BY STOPPING, DISPERSING, ARRESTING, OR IMPRISONING
ANY PERSON, OR BY ANY OTHER MEANS, WITH PICKETING, ASSEMBLING,
SOLICITATION, OR ORGANIZATIONAL EFFORT WITHOUT ADEQUATE CAUSE. 

"C.  ARRESTING ANY PERSON WITHOUT WARRANT OR WITHOUT PROBABLE CAUSE
WHICH PROBABLE CAUSE IS ACCOMPANIED BY INTENTION TO PRESENT APPROPRIATE
WRITTEN COMPLAINT TO A COURT OF COMPETENT JURISDICTION. 

"D.  STOPPING, DISPERSING, ARRESTING OR IMPRISONING ANY PERSON
WITHOUT ADEQUATE CAUSE BECAUSE OF THE ARREST OF SOME OTHER PERSON. 

"E.  AS USED IN THIS PARAGRAPH 16, SUBPARAGRAPHS A, B AND D ABOVE,
THE TERM 'ADEQUATE CAUSE' SHALL MEAN (1) ACTUAL OBSTRUCTION OF A PUBLIC
OR PRIVATE PASSWAY, ROAD, STREET, OR ENTRANCE WHICH ACTUALLY CAUSES
UNREASONABLE INTERFERENCE WITH INGRESS, EGRESS, OR FLOW OF TRAFFIC; OR
(2) FORCEOR VIOLENCE, OR THE THREAT OF FORCE OR VIOLENCE, ACTUALLY
COMMITTED BY ANY PERSON BY HIS OWN CONDUCT OR BY ACTUALLY AIDING,
ABETTING, OR PARTICIPATING IN SUCH CONDUCT BY ANOTHER PERSON; OR (3)
PROBABLE CAUSE WHICH MAY CAUSE A DEFENDANT TO BELIEVE IN GOOD FAITH
THAT ONE OR MORE PARTICULAR PERSONS DID VIOLATE A CRIMINAL LAW OF THE
STATE OF TEXAS OTHER THAN THOSE SPECIFIC LAWS HEREIN DECLARED
UNCONSTITUTIONAL, OR A MUNICPAL ORDINANCE." 

/8/  IT IS ARGUED THAT PUBLIC SERVICE COMM'N V. BRASHEAR LINES, 312
U.S. 621, HOLDS THAT THERE IS NO ANCILLARY JURISDICTION IN THREE-JUDGE
COURTS.  IN BRASHEAR THE PLAINTIFFS REFUSED TO PAY FEES ASSESSED UNDER
THE STATUTE CHALLENGED IN THEIR SUIT; WHEN THEIR ATTACK ON THE STATUTE
FAILED THE DEFENDANTS SOUGHT DAMAGES, AND THE COURT HELD THAT THE
DAMAGES ACTION SHOULD HAVE BEEN HEARD BY A SINGLE DISTRICT JUDGE.  THIS
WS NOT A PROPER EXERCISE OF ANCILLARY JURISDICTION BECAUSE THE
DEFENNDANTS' CLAIM WAS COMPLETELY UNRELATED TO THE BASIS ON WHICH THE
THREE-JUEGE COURT WAS CONVENED, AND THERE WAS NO PUPRPOSE TO BE SERVED
BY HAVING IT DETERMINED BY THE SAME TRIBUNAL.. BUT WE HAVE HELD THAT
"(ONCE (A THREE-JUDGE COURT IS) CONVENED THE CASE CAN BE DISPOSED OF
BELOW OR HERE ON ANY GROUND, WHETHER OR NOT IT WOULD HAVE JUSTIFIED THE
CALLING OF A THREE-JUDGE COURT."  UNITED STATES V. GEORGIA PUBLIC
SERVICE COMM'N, 371 U.S. 285, 287 - 288.  INDEED, THE THREE-JUDGE COURT
IS REQUIRED TO HEAR THE NONCONSTITUTIONAL ATTACK UPON THE STATUTE,
FLORIDA LIME GROWERS V. JACOBSEN, 362 U.S. 73, 85; ROSADO V. WYMAN, 397
U.S. 397, 402.  THE INSTANT CASE IS NEARLY IDENTICAL TO MILKY WAY V.
LEARY, 397 U.S. 98, IN WHICH WE CONSIDERED AND SUMMARILY AFFIRMED THE
JUDGMENT OF A THREE-JUDGE COURT REGARDING THE ASSERTEDLY ILLEGAL
APPLICATION OF A NEW YOARK STATUTE WHICH WAS CONCEDEDLY CONSTITUTIONAL;
THIS DECISION WAS RENDERED IN THE EXERCISE OF ANCILLARY JURISDICTION
ACQUIRED AS A RESULT OF A FACIAL ATTACK ON A DIFFERENT BUT RELATED
STATE STATUTE.  3-5 F. SUPP. 288, 296.  THE PART OF THE DECREE
ENJOINING POLICE MISCONDUCT IS INTIMATELY BOUND UP WITH AND ANCILLARY
TO THE REMAINDER OF THE COURT'S JUDGMENT, AND EVEN BRASHEAR HELD THAT
THE COURT HAS JURISDICTION TO HEAR EVERY QUESTION PERTAINING TO THE
PRAYER FOR THE INJUNCTION "IN ORDER THAT A SINGLE LAWSUIT MAY AFFORD
FINAL AND AUTHORITATIVE DECISION OF THE CONTROVERSY BETWEEN THE
ARTIES."  312 U.S., AT 625 N. 5. 

THIS VIEW WAS FOLLOWED IN PEREZ V. LEDESMA, 401 U.S. 82, IN WHICH A
THREE-JUDGE DISTRICT COURT HAD SUSTAINED A STATE OBSCENITY STATUTE
AGAINST THE FEDERAL CONSTITITUONAL ATTACK THAT PROVIDED THE BASIS FOR
CONVENING IT.  BUT THE DISTRICT COURT WENT ON TO DETERMINE THAT THE
ARRESTS OF THE PLAINTIFFS AND THE SEIZURES INCIDENT THERETO WERE
UNCONSTITUTIONAL BECAUSE NO PRIOR ADVERSARY HEARING HAD BEEN HELD, 304
F. SUPP. 662, 667 (ED LA.), AND THEREFORE ISSUED AN ORDER SUPPRESSING
THE EVIDENCE IN THE STATE COURT CASE.  WE REVIEWED THAT ORDER ON THE
MERITS, ASSUMING IT WAS PROPERLY BEFORE US AS AN APPEAL "FROM AN ORDER
GRANTING OR DENYING . . . AN INTERLOCUTORY OR PERMANENT INJUNCTION IN
ANY CIVIL" ACTION REQUIRED TO BE HEARD BY A THREE-JUDGE COURT.  SEE 401
U.S., AT 89 (STEWART, J., CONCURRING).  THE BASIS FOR ANCILLARY
JURISDICTION HERE IS AT LEAST AS COMPELLING. 

IT IS TRUE THAT WE ALSO HELD IN PEREZ THAT AN ORDER STRIKING DOWN A
LOCAL PARISH ORDINANCE WAS NOT PROPERLY BEFORE US.  BUT THAT WAS AN
ATTACK ON A WHOLLY DIFFERENT ENACTMENT NOT INVOLVING DETAILED FACTUAL
INQUIRIES COMMON WITH AND ANCILLARY TO TE CONSTITUTIONAL CHALLENGE ON
THE STATE LAW SUPPORTING THE THREE-JUDGE COURT'S JURISDICTION.  AND
CENTRAL TO OUR DETERMINATION WAS THE FINDING THAT THE ORDER REGARDING
THE PARISH ORDINANCE "WAS NOT ISSUED BY A THREE-JUDGE COURT, BUT RATHER
BY JUDGE BOYLE, ACTING AS A SINGLE DISTRICT JUDGE."  401 U.S., AT 87. 
THAT IS OBVIOUSLY NOT THE CASE HERE. 

/9/  IN NAACP V. THOMPSON, 357 F. 2D 831 (CA5), THE COURT OF APPEALS
REVERSED THE DENIAL OF RELIEF BY THE DISTRICT COURT CONCLUDING THAT
DEFENDANTS BELIEVED THAT PLAINTIFFS' DEMONSTRATIONS "MUST BE SUPPRESSED
AND THAT, IN ORDER TO DO SO, THEY INTEND TO TAKE ADVANTAGE OF ANY LAW
OR ORDINANCE, HOWEVER INAPPLICABLE OR HOWEVER SLIGHT THE TRANSGRESSION,
AND TO CONTINUE TO HARASS AND INTIMIDATE (THE) PLAINTIFFS."  ID., AT
838.  THE FINDINGS HERE SHOW AT LEAST THAT MUSH.  IN LANKFORD V.
GELSTON, 364 F. 2D 197 (CA4) (EN BANC), THE COURT ORDERED THE POLICE
ENJOINED FROM MAKING SEARCHES WITHOUT PROBABLE CAUSE AFTER CONCLUDING
THAT THE "RAIDS WERE NOT ISOLATED INSTANCES UNDERTAKEN BY INDIVIDUAL
POLICE OFFICERS."  ID., AT 202.  SEE ALSO WOLIN V. PORT OF NEW YORK
AUTHORITY, 392 F. 2D 83 (CA2). 

/10/  THERE WAS NO CHALLENGE HERE TO THE DISTRICT COURT'S CONCLUSION
THAT THIS WAS A PROPER CLASS ACTION, SEE N. 14, INFRA.  MOREOVER AS TO
THIS PORTION OF THE DECREE, DIRECTED AT POLICE MISCONDUCT GENERALLY
RATHER THAN TO ANY PARTICULAR STATE STATUTE, NAMED PLAINTIFFS
INTIMIDATED BY MISCONDUCT MAY REPRESENT ALL OTHERS IN THE CLASS OF
THOSE SIMILARLY ABUSED, WITHOUT REGARD TO THE ASSERTED STATE STATUTORY
BASIS FOR THE POLICE ACTIONS. 

/11/  THE DECREE IS NOT DIRECTED AT ANY STATE PROSECUTORS OR STATE
JUDGES WITH TH EXCEPTION OF ONE JUSTICE OF THE PEACE WHOSE INVOLVEMENT
APPARENTLY CONSISTED OF ISSUING WARRANTS WITHOUT PROPER BASIS. 
MOREOVER IT DOES NOT IN TERMS RESTRAIN ANY PROSECUTIONS, BUT ONLY THE
"ARRESTING, IMPRISONING, FILING CRIMINAL CHARGES, THREATENING TO
ARREST, OR ORDERING OR ADVISING OR SUGGESTING THAT (APPELLEES) DISPERSE
UNDER AUTHORITY OF ANY PORTION OF" THE STATUTES STRUCK DOWN.  A READING
OF THE COMPLAINT SUGGESTS THAT NO INJUNCTIVE RELIEF AGAINST PENDING
PROSECUTIONS WAS EVER REQUESTED.  AS TO WHETHER THERE IN FACT WERE
PENDING PROSECUTIONS, OUR ONLY GUIDANCE FROM THE DISTRICT COURT IS A
PASSING REFERENCE THAT "PLAINTIFFS (ARE) NOW FACING CHARGES IN THE
TEXAS COURTS . . . ," 347 F. SUPP., AT 620, BUT IT IS IMPOSSIBLE TO
DETERMINE AGAINST WHOM ANY CHARGES MIGHT BE PENDING.  INDEED, IN LIGHT
OF THE DISTRICT COURT'S FAILURE TO TREAT THE STATUTES SEPARATELY IN
THEIR FINDINGS OF HARASSMENT, WE CANNOT BE CERTAIN THAT THEIR REFERENCE
TO PENDING CHARGES HERE IS A FINDING THAT THERE ARE CHARGES PENDING
UNDER EACH OF THE STATUTES.  AND IF THERE ARE STATE CHARGES PENDING, WE
COULD DO NO MORE THAN SPECULATE AS TO WHY TRIAL NEVER COMMENCED DURING
THE FIVE-YEAR PENDENCY OF THE FEDERAL SUTI.  THIS MAY BE THE RESULT OF
AN INFORMAL AGREEMENT WITH THE FEDERAL COURT, OR IT MAY INDICATE THAT
THE STATE HAS ABONDONED ANY INTENTION TO BRING THESE CASES TO TRIAL. 
INDEED IT MAY BE THAT STATE LAW WOULD BAR PROSECUTIONS NOW AFTER SUCH A
DELAY.  SEE TEX. CONST., ART. 1, 10, AND TEX. CODE CRIM. PROC. ART.
32.01.  IT IS THEREFORE APPROPRIATE TO REMAND TO THE DISTRICT COURT FOR
FUTHER FINDINGS ON THIS QUESTION. 

/12/  IN THE FEDERAL SYSTEM AN APPELLATE COURT DETRMINES MOOTNESS AS
OF THE TIME IT CONSIDERS THE CASE, NOT AS OF THE TIME IT WAS FILED. 
ROE V. WADE, 410 U.S. 113, 125. 

/13/  IF THERE ARE PENDING PROSECUTIONS AGAINST MEMBERS OF THE CLASS
NOT NAMED IN THE ACTION, THE DISTRICT COURT MUST FIND THAT THE CLASS
WAS PROPERLY REPRESENTED.  APPELLANTS STIPULATED IN DISTRICT COURT THAT
"PLAINTIFFS ARE PROPERLY REPRESENTATIVE OF THE CLASS THEY PURPORT TO
REPRESENT."  DOCUMENT 33, 2, RECORD ON APPEAL.  IN THIS REGARD WE NOTE
THAT THE UNION WAS ITSELF A NAMED PLAINTIFF, AND THE JUDGMENT WAS
ISSUED ON BEHALF OF ALL OF ITS MEMBERS. 

IN THIS CASE THE UNION HAS STANDING AS A NAMED PLAINTIFF TO RAISE
ANY OF THE CLAIMS THAT A MEMBER OF THE UNION WOULD HAVE STANDING TO
RAISE.  UNIONS MAY SUE UNDER 42 U.S.C. 1983 AS PERSONS DEPRIVED OF
THEIR RIGHTS SECURED BY THE CONSTITUTION AND LAWS, AMERICAN FED. OF
STATE, CO., & MUN.  EMP.  V. WOODWARD, 406 F. 2D 137 (CA8), AND IT HAS
BEEN IMPLICITLY RECOGNIZED THAT PROTECTED FIRST AMENDMENT RIGHTS FLOW
TO UNIONS AS WELL AS TO THEIR MEMBERS AND ORGANIZERS.  CARPENTERS UNION
V. RITTER'S CAFE, 315 U.S. 722; EF. NAACP V. BUTTON, 371 U.S. 415,
428.  IF, AS ALLEGED BY THE UNION IT ITS COMPLAINT, ITS MEMBERS WERE
SUBJECT TO UNLAWFUL ARRESTS AND INTIMIDATION FOR ENGAGING IN UNION
ORGANIZATIONAL ACTIVITY PROTECTED BY THE FIRST AMENDMENT, THE UNION'S
CAPACITY TO COMMUNICATE IS UNLAWFULLY IMPEDED, SINCE THE UNION CAN ACT
ONLY THROUGH ITS MEMBERS.  THE UNION THEN HAS STANDING TO COMPLAIN OF
THE ARRESTS AND INTIMIDATION AND BRING THIS ACTION. 

/14/  SEE DOMBROWSKI V. PFISTER, 380 U.S. 479, 490: "(APPELLANTS
HAVE ATTACKED THE GOOD FAITH OF THE APPELLEES IN ENFORCING THE
STATUTES, CLAIMING THAT THEY HAVE INVOKED, AND THREATEN TO CONTINUE TO
INVOKE, CRIMINAL PROCESS WITHOUT ANY HOPE OF ULTIMATE SUCCESS, BUT ONLY
TO DISCOURAGE APPELLANTS' CIVIL RIGHTS ACTIVITIES."  SEE ALSO CAMERON
V. JOHNSON, 390 U.S. 611, 619 - 620, AND PEREZ V. LEDESMA, 401 U.S. 82,
118 N. 11 (SEPARATE OPINION OF BRENNAN, J.). 

/15/  WE DO NOT REACH THE QUESTION RESERVED IN STEFFEL AS TO WHETHER
A YOUNGER SHOWING IS NECESSARY TO OBTAIN INJUNCTIVE RELIEF AGAINST
THREATENED PROSECUTIONS.  SEE GENERALLY NOTE, FEDERAL RELIEF AGAINST
THREATEDED STATE PROSECUTIONS:  THE IMPLICATIONS OF YOUNGER, LAKE
CARRIERS AND ROE, 48 N.Y.U.L. REV. 965 (1973). 

MR. JUSTIC POWELL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE WHITE AND MR.
JUSTICE REHNQUIST JOIN, CONCURRING IN THE RESULT IN PART AND DISSENTING
IN PART. 

ON JUNE 1, 1966, APPELLEE UNITED FARM WORKERS ORGANIZING COMMITTEE,
AFL-CIO (THE UNION), CALLED A STRIKE OF FARMWORKERS IN STARR COUNTY,
TEXAS.  AFTER THE STRIKE COLLAPSED A YEAR LATER THE UNION AND SIX
INDIVIDUALS ACTIVE IN THE STRIKE /1/  BROUGHT THIS ACTION IN UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS AGAINST FIVE
TEXAS RANGERS, THE SHERIFF, TWO DEPUTY SHERIFFS, AND A SPECIAL DEPUTY
OF STARR COUNTY, TEXAS, AND A STARR COUNTY JUSTICE OF THE PEACE,
ALLEGING THAT THE DEFENDANTS UNLAWFULLY SUPPRESSED THE PLAINTIFFS AND
THE CLASS OF UNION MEMBERS AND SYMPATHIZERS THEY PURPORTED TO REPRESENT
IN THE EXERCISE OF THEIR FIRST AND FOURTEENTH AMENDMENT RIGHTS OF FREE
SPEECH AND ASSOCIATION DURING THE STRIKE.  /2/  THE SUPPRESSION WAS
ALLEGED TO HAVE BEEN CAUSED IN PART THROUGH THE ENFORCEMENT OF SIX
TEXAS STATUTES WHICH PLAINTIFFS CLAIMED TO HAVE BEEN UNCONSTITUTIONAL. 
THE DISTIRCT COURT, CONVENED AS A THREE-JUDGE COURT, AGREED WITH
PLAINTIFFS AS TO FIVE OF THE STATUTES /3/  AND DECLARED THEM TO BE
UNCONSTITUTIONAL AND ENJOINED THEIR ENFORCEMENT.  THE DISTRICT COURT
ALSO ENTERED AN INJUNCTION PROHIBITING ACTS OF MISCONDUCT BY DEFENDANTS
AND THOSE ASSOCIATED WITH THEM.  347 F. SUPP. 605 (SD TEX. 1972).  THE
FIVE TEXAS RANGERS APPEALED THE DISTRICT COURT'S JUDGMENT TO THIS
COURT.  WE NOTED PROBABLE JURISDICTION.  411 U.S. 963 (1973). 

THE COURT TODAY VACATES THE JUDGMENT OF THE DISTRICT COURT AS IT
DEALS WITH THE RELIEF GRANTED AGAINST THE ENFORCEMENT OF HTE STATUTES,
AND REMANDS FOR FURTHER FINDINGS AND FOR RECONSIDERATION, IN THE CASE
OF THE RELIEF GRANTED WITH RESPECT TO TWO OF THE STATUTES, IN LIGHT OF
STEFFEL V. THOMPSON, 415 U.S. 452 (1974).  IN SO DOING THE COURT AVOIDS
SIGNIFICANT LEGAL ISSUES WHICH ARE FAIRLY PRESENTED IN THIS APPEAL AND
WHICH MUST BE RESOLVED NOW.  THEY DESERVE FULL TREATMENT FOR THE
BENEFIT NOT ONLY OF THE DISTRICT COURT ON REMAND BUT OF OTHER COURTS
THAT MUST WRESTLE WITH THE MYRIAD PROBLEMS PRESENTED IN APPLYING THE
DOCTRINE OF YOUNGER V. HARRIS, 401 U.S. 37 (1971).  I UNDERTAKE TO DEAL
WITH SOME OF THOSE ISSUES.  THE COURT NEITHER ACCEPTS NOR REJECTS MY
REASONING AND ULTIMATE RESOLUTION OF THE ISSUES; I, THEREFORE, CONCUR
ONLY IN THE RESULT OF THE REMAND.  THE COURT ALSO AFFIRMS THE DECREE
GRANTING INJUNCTIVE RELIEF AGAINST POLICE MISCONDUCT AS SLIGHTLY
MODIFIED TO REFLECT THE REMAND.  FOR THE REASONS STATED BELOW I DISSENT
FROM THAT RESULT. 

        I 

THE FACTS AS FOUND BY THE DISTRICT COURT ARE NOT IN DISPUTE.  A
REVIEW OF THOSE FACTS IS NECESSARY FOR AN UNDERSTANDING OF SOME OF THE
DIFFICULT LEGAL ISSUES IN THIS APPEAL. 

(A) ON JUNE 8, 1966, ONE EUGENE NELSON, A STRIKE LEADER, WAS TAKEN
INTO CUSTODY AND DETAINED FOR FOUR HOURS WITHOUT ANY CHARGES BEING
FILED AGAINST HIM.  WHILE IN CUSTODY HE WAS QUESTIONED ABOUT HIS STRIKE
ACTIVITIES AND INFORMED THAT THE FEDERAL BUREAU OF INVESTIGATION WOULD
BE INVESTIGATING HIM REGARDING ALLEGED THREATS OF VIOLENCE AGAINST THE
LOCAL COURTHOUSE AND BUSES USED TO TRANSPORT MEXICAN FARMWORKERS TO
THEIR JOBS.  WHEN TAKEN INTO CUSTODY, NELSON WAS AT AN INTERNATIONAL
BRIDGE ATTEMPTING TO PERSUADE WORKERS TO JOIN THE STRIKE. 

(B) ANOTHER UNION LEADER, RAYMOND CHANGLER, WAS ARRESTED ON OCTOBER
12, 1966, AT A PICKETING SITE WHEN HE REFUSED TO OBEY AN ORDER TO
DISPERSE AND BECAME INVOLVED IN AN ALTERCATION USING LOUD AND
VOCIFEROUS LANGUAGE TO A DEPUTY SHERIFF OF STARR COUNTY.  CHANDLER WAS
APPARENTLY ARRESTED FOR VIOLATING TEX. PENAL CODE, ART. 474, THE
DISTURBING THE PEACE STATUTE.  BOND WAS SET AT $500 ALTHOUGH THE
MAXIMUM PUNISHMENT FOR VIOLATION OF 474 IS A $200 FINE.  TWO OF
CHANDLER'S FRIENDS WHO CAME TO THE COURTHOUSE TO MAKE BOND WERE
VERBALLY ABUSED AND THREATENED WITH ARREST BY DEPUTY SHERIFFS. 

(C) ON OCTOBER 24, 1966, A DEPUTY SHERIFF USED VIOLENCE AND THE
THREAT OF DEADLY FORCE TO SUBDUE THE PRESIDENT OF THE LOCAL UNION WHO
HAD JUST, WHILE UNDER ARREST AND IN CUSTODY IN A COURTHOUSE, SHOUTED
OUT "VIVA LA HUELGA" WITH SOME FELLOW ARRESTEES. 

(D) ON NOVEMBER 9, 1966, THE TEXAS RANGERS, WHO HAD BY THIS TIME
BEEN CALLED IN TO HELP KEEP PEACE AND ORDER DURING THE PENDENCY OF THE
STRIKE, SERVED A WARRANT OF ARREST ON A REYNALDO DE LA CRUZ, CHARGING A
VIOLATION OF TEX. REV. CIV. STAT., ART. 5154F ON NOVEMBER 3, 1966, WHEN
MEMBERS OF THE UNION PICKETED PRODUCE PACKING SHEDS LOCATED ON MISSOURI
PACIFIC RAILROAD TRACKS.  WHILE DE LA CRUZ WAS UNDER ARREST TWO TEXAS
RANGERS MADE ANTI-UNION STATEMENTS TO THE ARRESTEE. 

(E) CHARGES WERE FILED BY A DEPUTY SHERIFF AGAINST REYNALDO DE LA
CRUZ ON DECEMBER 28, 1966, FOR IMPERSONATING AN OFFICER BY WEARING A
BADGE IN AND AROUND THE UNION HALL.  THE DEPUTY HAD NOT WITNESSED THE
OFFENSE; THE BADGE WAS OF THE SHIELD TYPE, WHILE SHERIFF'S DEPUTIES AND
TEXAS RANGERS WORE BADGES IN THE SHAPE OF STARS.  THE DEPUTY WHO FILED
THE CHARGES ADMITTED THAT HE WAS AWARE OF HIS OWN KNOWLEDGE THAT
SIMILAR BADGES HAD BEEN WORN BY DE LA CRUZ AND ANOTHER WHEN DIRECTING
TRAFFIC AT UNION FUNCTIONS.  ALSO ON THAT DATE LIBRADO DE LA CRUZ
ATTEMPTED TO GRAB A NONSTRIKING FARM EMPLOYEE BY THE COAT, AND WAS
ARRESTED IMMEDIATELY AND CHARGED WITH ASSAULT. 

(F) ON THE EVENING OF JANUARY 26, 1967, ABOUT 20 UNION SUPPORTERS
WERE GATHERED AT THE STARR COUNTY COURTHOUSE TO CONDUCT A PEACEFUL
PRAYER VIGIL IN PROTEST OF ARRESTS OF UNION MEMBERS EARLIER THAT DAY. 
TWO MEMBERS OF THE GROUP MOUNTED THE COURTHOUSE STEPS, AND WHEN THE
GROUP WAS ORDERED BY A SHERIFF'S DEPUTY TO LEAVE THE COURTHOUSE
GROUNDS, THE TWO ON THE STEPS REFUSED AND WERE ARRESTED FOR UNLAWFUL
ASSEMBLY, APPARENTLY IN VIOLATION OF TEX. PENAL CODE, ART. 439.  ONE OF
THE TWO ARRESTED WAS GILBERT PADILLA, THE FIRST OF THE NAMED PLAINTIFFS
TO ENTER THE CHRONOLOGY.  THE OTHER WAS A MINISTER.     (G) ON FEBRUARY
1, 1967, NINE PERSONS WERE ARRESTED AND CHARGED WITH DISTURBING THE
PEACE, APPARENTLY IN VIOLATION OF TEX. PENAL CODE, ART. 474, FOR
EXHORTING FIELD LABORERS TO QUIT WORK. 

(H) THREE MONTHS LATER, ON MAY 11, 1967, OTHER EVENTS OCCURRED:
APPELLANT CAPTAIN A.Y. ALLEE OF THE TEXAS RANGERS INFORMED PICKETING
STRIKERS THAT HE COULD GET THEM A JOB WITHIN 10 MINUTES AT THE UNION
DEMANDED WAGE.  ALSO ON THAT DAY A TEXAS RANGER SHOVED TWO PERSONS
CONNECTED WITH THE STRIKE, INCLUDING ONE OF THE NAMED PLAINTIFFS, DAVID
LOPEZ.  BOTH THOSE SHOVED ATTEMPTED TO FILE CHARGES OF ASSAULT BUT THE
COUNTY ATTORNEY DETERMINED THAT THERE WAS INSUFFICIENT EVIDENCE TO GO
FORWARD WITH THE COMPLAINT. 

(I) ON THE FOLLOWING DAY, MAY 12, 1967, STRIKERS WERE ALLOWED TO
PEACEFULLY PICKET IN ACCORDANCE WITH TES.  REV.  CIV. STAT., ART.
5154D, TEH MASS PICKETING STATUTE, AND WERE ALLOWED TO DEPART AFTER
BEING DETAINED FOR A SHORT PERIOD OF TIME AT THE PICKETING SITE. 

(J) ON MAY 12, 1967, EUGENE NELSON WAS ARRESTED FOR THREATENING THE
LIFE OF CERTAIN TEXAS RANGERS ALTHOUGH APPELLANT ALLEE DID NOT TAKE THE
THREAT SERIOUSLY, AND A BOND WAS NOT ACCEPTED UNTIL TAX RECORDS COULD
BE CHECKED FOLLOWING THE WEEKEND, ALTHOUGH THERE WAS NO VALID REASON
FOR WAITING SINCE THE DEPUTY SHERIFF TO WHOM THE BOND WAS TENDERED KNEW
FULL WELL THAT THE SURETY WAS A LANDOWNER AND A PERSON OF SUBSTANCE IN
STARR COUNTY. 

(K) ON MAY 26, 1967, 14 PERSONS WERE ARRESTED FOR TRESPASSING.  THE
CHARGE WAS LATER CHANGED TO UNLAWFUL ASSEMBLY, AND THIS CHARGE WAS
SUPERSEDED BY A SECONDARY PICKETING AND BOYCOTT CHARGE.  TEN PERSONS
WERE ARRESTED WHEN THEY ALLEGEDLY ATTEMPTED TO BLODK A TRAIN CARRYING
PRODUCE.  THE SECOND GROUP OF FOUR PERSONS WAS ARRESTED LATER IN THE
EVENING.  THE FOUR WERE APPARENTLY ARRESTED FOR UNSUCCESSFULLY
ENCOURAGING BYSTANDERS TO PICKET AND WERE ULTIMATELY CHARGED WITH
SECONDARY PICKETING AND BOYCOTTING UPON THE COMPLAINT OF A RAILROAD
SPECIAL AGENT WHO HAD LEFT THE SCENE PRIOR TO THE EVENTS WHICH CAUSED
THIS SECOND SERIES OF ARRESTS.  INCLUDED IN THE GROUP WAS MAGDALENO
DIMAS, ANOTHER NAMED PLAINTIFF.  THE FINDINGS RECITE THAT A MRS.
KRUEGER, ANOTHER ONE OF THIS SECOND GROUP, WAS ARRESTED "EITHER FOR
TAKING A PICTURE OF HER HUSBAND'S ARREST OR ATTEMPTING TO STRIKE
CAPTAIN ALLEE WITH HER CAMERA IN HER HUSBAND'S DEFENSE."  347 F. SUPP.,
AT 615.  THE FOUR ARRESTEES IN THE SECOND GROUP WERE ROUGHLY HANDLED. 
THE FINDINGS CONCERNING THIS ENTIRE INCIDENT ARE NOT SET OUT WITH
CLARITY. 

(L) ON MAY 31, 1967, THE TEXAS RANGERS ARRESTED APPARENTLY 13 PICKETS
FOR ALLEGEDLY VIOLATING THE MASS PICKETING STATUTE, TEX. REV. CIV.
STAT., ART. 5154D. 

(M) ON JUNE 1, 1967, THE TEXAS RANGERS SOUGHT AND ARRESTED MAGDALENO
DIMAS AT THE HOME OF KATHY BAKER, ANOTHER NAMED PLAINTIFF, FOR
ALLEGEDLY HAVING PREVIOUSLY BRANDISHED A GUN IN A THREATENING MANNER IN
THE PRESENCE OF A SPECIAL DEPUTY OF STARR COUNTY.  TWO OTHER PERSONS
WERE ARRESTED FOR ASSISTING DIMAS TO EVADE ARREST.  BENJAMIN RODRIGUEZ,
A THIRD NAMED PLAINTIFF, WAS ARRESTED AT THE SAME TIME THE POLICE
APPREHENDED DIMAS, ALTHOUGH THE DISTRICT COURT DOES NOT EXPLAIN WHY
RODRIGUEZ WAS ARRESTED.  THE ARRESTS OF DIMAS AND RODRIGUEZ WERE FOUND
BY THE DISTRICT COURT TO HAVE BEEN ACCOMPLISHED IN A BRUTAL AND VIOLENT
FASHION. 

(N) WHILE THE STRIKE WAS IN PROGRESS THE STARR COUNTY SHERIFF'S
OFFICE ASSISTED IN THE REGULAR DISTRIBUTION OF A STRONGLY ANTI-UNION
NEWSPAPER.  EACH WEEK DEPUTIES WOULD PICK UP AND THEN LOCALLY
DISTRIBUTE COPIES OF THE PAPER. 

        II 

IN THIS PART, I CONSIDER THE PROBLEMS OF MOOTNESS AND STANDING.  IN
PART III I DISCUSS YOUNGER V. HARRIS, 401 U.S. 37 (1971), AND ITS
APPLICABILITY TO THE FACTS OF THE INSTANT CASE.  THE INJUNCTION AGAINST
POLICE MISCONDUCT IS DEALT WITH IN PART IV. 

THE PRINCIPAL RELIEF GRANTED BY THE DISTRICT COURT WAS THE
DECLARATION THAT FIVE TEXAS STATUTES ARE UNCONSTITUTIONAL AND THE
INJUNCTION AGAINST THEIR CONTINUED ENFORCEMENT.  THE DISTRICT COURT
DETERMINED ON THE FACTS AS IT FOUND THEM THAT APPELLEES HAD OVERCOME
THE BURDEN IMPOSED BY YOUNGER V. HARRIS, SUPRA, AND THE COURT WAS,
THEREFORE, EMPOWERED TO REACH THE MERITS OF THE CONSTITUTIONAL
CHALLENGES TO THE STATUTES.  ALTHOUGH THE DISTRICT COURT RECITED
EVIDENCE AS TO ARRESTS AND CHARGES HAVING BEEN FILED, THE COURT DID NOT
MAKE EXPLICIT FINDINGS OF SPECIFIC PROSECUTIONS PENDING AT THE TIME OF
THE COMMENCEMENT OF THE ACTION OR AT THE TIME OF ITS DECISION.  SINCE
THE FACTS OF POSSIBLE PROSECUTIONS PENDING NOW AND AT THE COMMENCEMENT
OF THE ACTION ARE CRUCIAL TO MATTERS OF MOOTNESS, STANDING, AND THE
APPLICABILITY OF YOUNGER V. HARRIS, WE SHOULD REMAND TO THE DISTRICT
COURT FOR FURTHER FINDINGS IN THIS AREA. 

THREE OF THE STATUTES HELD TO BE UNCONSTITUTIONAL BY THE DISTRICT
COURT HAVE BEEN REPEALED BY THE TEXAS LEGISLATURE IN A NEW CODIFICATION
OF THE PENAL CODE.  ARTICLES 439 (UNLAWFUL ASSEMBLY), 474 (BREACH OF
THE PEACE), AND 482 (ABUSIVE LANGUAGE) CAN NO LONGER BE EMPLOYED TO
ARREST APPELLEES OR MEMBERS OF THEIR CLASS.  ON REMAND THE DISTRICT
COURT SHOULD FIRST DETERMINE WHETHER APPELLEES HAD STANDING TO COMMENCE
THIS ACTION RESPECTING THESE THREE STATUTES.  "IT MUST BE ALLEGED THAT
THE PLAINTIFF 'HAS SUSTAINED OR IS IMMEDIATELY IN DANGER OF SUSTAINING
SOME DIRECT INJURY' AS THE RESULT OF THE CHALLENGED STATUTE OR OFFICIAL
CONDUCT.  MASSACHUSETTS V. MELLON, 262 U.S. 447, 488 (1923)."  O'SHEA
V. LITTLETON, 414 U.S. 488, 494 (1974).  EVEN IF BY THE OPERATION,
I.E., ARREST AND PROSECUTION, OR THREATENED OPERATION OF THE STATUTES,
ONE OR MORE APPELLEES HAD STANDING TO COMMENCE THIS ACTION, THE
DISTRICT COURT WILL BE OBLIGED TO RESOLVE THE "QUESTION AS TO THE
CONTINUING EXISTENCE OF A LIVE AND ACUTE CONTROVERSY."  STEFFEL V.
THOMPSON, 415 U.S. 452, 459 (1974).  (EMPHASIS IN ORIGINAL.)  SEE ALSO
INDIANA EMPLOYMENT DIVISION V. BURNEY, 409 U.S. 540 (1973).  SINCE THE
STATUTES HAVE BEEN REPEALED THREATS OF FUTURE PROSECUTION CAN NO LONGER
SUFFICE TO ESTABLISH A LIVE CONTROVERSY.  THE INJURY THAT APPELLEES
FACED AND FACE MUST THEN RESULT FROM PENDING PROSECUTIONS UNDER EACH OF
THE CHALLENGED STATUTES NOW REPEALED. 

THE TWO OTHER STATUTES HELD UNCONSTITUTIONAL BY THE DISTRICT COURT,
TEX. REV. CIV. STAT., ARTS. 5154D AND 5154F, HAVE NOT BEEN REPEALED,
AND I CANNOT SAY, ON THIS RECORD, THAT THE POSSIBILITY OF FUTURE
PROSECUTIONS IS OR IS NOT REAL.  THE DISTRICT COURT SHOULD EXAMINE THE
STANDING OF APPELLEES TO CHALLENGE THE CONSTITUTIONALITY OF THESE
STATUTES UNDER THE SAME GUIDELINES AS APPLICABLE TO THE THREE REPEALED
STATUTES, EXCEPT THAT PROSECUTION REMAINS HYPOTHETICALLY POSSIBLE UNDER
THESE TWO STATUTES.  SEE STEFFEL V. THOMPSON, SUPRA, AT 459. 

WE HAVE RECENTLY HELD IN O'SHEA V. LITTLETON, SUPRA AT 493, THAT
STANDING MUST BE PERSONAL TO AND SATISFIED BY "THOSE WHO SEEK TO INVOKE
THE POWER OF FEDERAL COURTS."  SEE ALSO BAILEY V. PATTERSON, 369 U.S.
31, 32 - 33 (1962); LONG V. DISTRICT OF COLUMBIA, 152 U.S. APP. D.C.
187, 190, 469 F. 2D 927, 930 (1972).  IF AN INDIVIDUAL NAMED APPELLEE
WAS AND IS SUBJECT TO PROSECUTION UNDER ONE OF THE CHALLENGED STATUTES,
THAT APPELLEE WOULD HAVE STANDING TO CHALLENGE THE CONSTITUTIONALITY OF
THAT STATUTE.  IF AN INDIVIDUAL NAMED APPELLEE WAS AND IS THREATENED
WITH PROSECUTION UNDER ONE OF THE EXTANT STATUTES, THAT APPELLEE WOULD
HAVE STANDING TO CHALLENGE ITS CONSTITUTIONALITY.  PROSECUTIONS
INSTITUTED AGAINST PERSONS WHO ARE NOT NAMED PLAINTIFFS CANNOT FORM THE
BASIS FOR STANDING OF THOSE WHO BRING AN ACTION.  IN PARTICULAR, A
NAMED PLAINTIFF CANNOT ACQUIRE STANDING TO SUE BY BRINGING HIS ACTION
ON BAHALF OF OTHERS WHO SUFFERED INJURY WHICH WOULD HAVE AFFORDED THEM
STANDING HAD THEY BEEN NAMED PLAINTIFFS; IT BEARS REPEATING THAT A
PERSON CANNOT PREDICATE STANDING ON INJURY WHICH HE DOES NOT SHARE. 
STANDING CANNOT BE ACQUIRED THROUGH THE BACK DOOR OF A CLASS ACTION. 
O'SHEA V. LITTLETON, SUPRA; BAILEY V. PATTERSON, SUPRA, AT 32 - 33. 
/4/ 

IN ADDITION TO ANY INDIVIDUAL NAMED APPELLEES THE UNION ITSELF MAY
HAVE STANDING TO CHALLENGE THE CONSTITUTIONALITY OF THE STATUTES.  THE
COURT HAS LONG RECOGNIZED THAT THE FIRST AMENDMENT'S GUARANTEES OF FREE
SPEECH AND ASSEMBLY HAVE AN IMPORTANT ROLE TO PLAY IN LABOR DISPUTES. 
THORNHILL V. ALABAMA, 310 U.S. 88, 102 (1940); THOMAS V. COLLINS, 323
U.S. 516, 532 (1945).  I AGREE WITH THE COURT THAT UNIONS, AS ENTITIES,
IN ADDITION TO UNION MEMBERS AND ORGANIZERS, ARE ENTITLED TO THE
BENEFIT OF THOSE GUARANTEES AND THAT A UNION MAY SUE UNDER 42 U.S.C.
1983 TO ENFORCE ITS FIRST AMENDMENT RIGHTS. 

HERE THE APPELLEE UNION ALLEGED IN THE COMPLAINT THAT IT WAS
DEPRIVED OF ITS CONSTITUTIONAL RIGHTS OF FREE SPEECH AND ASSEMBLY BY
THE ACTIONS OF DEFENDANTS IN ENFORCING THE CHALLENGED TEXAS STATUTES. 
IF, AS CLAIMED BY THE UNION, UNION MEMBERS WERE SUBJECT TO UNLAWFUL
ARREST AND THREATS OF ARREST IN THEIR FIRST AMENDMENT PROTECTED
ORGANIZATIONAL ACTIVITY ON BEHALF OF THE UNION, HTE UNION WOULD HAVE
DEREVATIVELY SUFFERED OR HAVE BEEN IN THE POSITION TO SUFFER
DERIVATIVELY REAL INJURY AND WOULD HAVE STANDING TO COMPLAIN OF THAT
INJURY AND BRING THIS ACTION.  /5/  IF A PERSON WHO WAS A MEMBER OF THE
UNION BOTH AT THE TIME OF THAT PERSON'S ARREST AND AT THE PRESENT TIME
WOULD HAVE STANDING INDIVIDUALLY TO CHALLENGE THE CONSTITUTIONALITY OF
ONE OF THE FIVE STATUTES, THEN THE UNION ITSELF WOULD HAVE SUCH
STANDING, SINCE THE INABILITY OF THE UNION MEMBER TO COMMUNICATE FREELY
RESTRICTS THE ABILITY OF THE UNION TO COMMUNICATE.  AS THE COURT
STATES, ANTE, AT 819 N. 13, A UNION "CAN ACT ONLY THROUGH ITS
MEMBERS."  /6/

        III

(A) 

THE DISTRICT COURT ON REMAND WILL BE FACED WITH THE ISSUE OF THE
APPLICABLITLY OF YOUNGER V. HARRIS, 401 U.S. 37 (1971), TO APPELLEES. 
SINCE STANDING AND THE CONTINUED EXISTENCE OF A LIVE CONTROVERSY AS TO
THE ACTION IN RELATION TO THE THREE REPEALED STATUTES DEPENDS ON THE
PENDENCY OF PROSECUTIONS UNDER EACH OF THE STATUTES, IT WILL BE
NECESSARY FOR APPELLEES TO MEET YOUNGER STANDARDS TO REACH THE
CONSTITUTIONAL MERITS OF ANY OF THESE STATUTES. 

TO THE EXTENT THAT THEY CAN PROVE STANDING, THE INDIVIDUAL APPELLEES
WILL BE SEEKING FEDERAL COURT INTERFERENCE IN THEIR OWN STATE COURT
PROSECUTIONS.  THE UNION, TO THE EXTENT THAT IT HAS STANDING, WILL BE
SEEKING INTERFERENCE WITH STATE COURT PROSECUTIONS OF ITS MEMBERS. 
THERE IS AN IDENTITY OF INTEREST BETWEEN THE UNION AND ITS PROSECUTED
MEMBERS; THE UNION MAY SEEK RELIEF ONLY BECAUSE OF THE PROSECUTIONS OF
ITS MEMBERS, /7/  AND ONLY BY INSURING THAT SUCH PROSECUTIONS CEASE MAY
THE UNION VINDICATE THE CONSTITUTIONAL INTERESTS WHICH IT CLAIMS ARE
VIOLATED.  THE UNION STANDS IN THE PLACE OF ITS PROSECUTED MEMBERS EVEN
AS IT ASSERTS ITS OWN CONSTITUTIONAL RIGHTS.  THE SAME COMITY
CONSIDERATIONS APPLY WHETHER THE ACTION IS BROUGHT IN THE NAME OF THE
INDIVIDUALLY ARRESTED UNION MEMBER OR IN THE NAME OF THE INDIVIDUALLY
ARRESTED UNION MEMBER OR IN THE NAME OF THE UNION, AND THERE IS NO
INEQUITY IN REQUIRING THE UNION TO ABIDE BY THE SAME LEGAL STANDARDS AS
ITS MEMBERS IN SUING IN FEDERAL COURT.  IF THE UNION WERE UNABLE TO
MEET THE REQUIREMENTS OF YOUNGER, ITS MEMBERS SUBJECT TO PROSECUTION
WOULD HAVE A FULL OPPORTUNITY TO VINDICATE THE FIRST AMENDMENT RIGHTS
OF BOTH THE UNION AND ITS MEMBERS IN THE STATE COURT PROCEEDINGS.  ANY
OTHER RESULT WOULD ALLOW THE EASY CIRCUMVENTION OF YOUNGER BY
INDIVIDUALS WHO COULD ASSERT THEIR CLAIMS OF FIRST AMENDMENT VIOLATIONS
THROUGH AN UNINCORPORATED ASSOCIATION OF THOSE SAME INDIVIDUALS IF THE
ASSOCIATION IS IMMUNE FROM YOUNGER BURDENS. 

THIS RESULT IS NOT CONTRARY TO THAT REACHED IN STEFFEL V. THOMPSON,
415 U.S. 452 (1974), WHERE THE ARREST OF ONE DEMONSTRATOR WAS NOT
IMPUTED FOR YOUNGER PURPOSES TO PETITIONER WHO BROUGHT SUIT FOR
DECLARATORY RELIEF AGAINST THE APPLICATION OF THE STATE STATUTE UNDER
WHICH THE OTHER DEMONSTRATOR WAS ARRESTED AND PETITIONER WAS ONLY
THREATENED WITH ARREST.  THERE WAS NO INDICATION IN THAT CASE THAT
PETITIONER AND THE ARRESTEE WERE ASSOCIATED OTHERWISE THAN IN THE
DISTRIBUTION OF ANTIWAR HANDBILLS.  FURTHERMORE, IN STEFFEL, THE
PETITIONER DEPARTED TO AVOID ARREST WHILE HIS COMPANION IN HANDBILLING
STAYED.  THE JOINT ACTIVITY OF PETITIONER AND HIS COMPANION IN STEFFEL
CEASED PRIOR TO THE ARREST OF THE COMPANION.  FINALLY, THERE IS NO
INDICATION THAT THE ARRESTEE WOULD SEEK TO OR BE ABLE TO VINDICATE
PETITIONER'S RIGHTS IN THE CRIMINAL PROCEEDING, AND ON SUCH A FACTUAL
SHOWING IT WOULD BE UNFAIR TO REQUIRE PETITIONER TO AWAIT THE OUTCOME
OF STATE COURT PROCEEDINGS HE WAS NOT A PARTY TO AND HAD NO APPARENT
CONNECTION WITH.  NO SUCH UNFAIRNESS INHERES IN THIS SITUATION WHERE
THE UNION MIGHT BE REQUIRED TO AWAIT STATE CRIMINAL TRIALS OF ITS
MEMBERS TO VINDICATE RIGHTS IT HOLDS IN COMMON WITH THOSE MEMBERS AND
WAS DEPRIVED OF DERIVATIVELY ONLY THROUGH PROSECUTIONS DIRECTED AT
THOSE MEMBERS.  /8/ 

THE PROCESS OF DETERMINING WHEN YOUNGER APPLIES BECOMES MORE COMPLEX
WHEN DEALING WITH THE TWO EXTANT STATUTES.  IF THERE ARE STATE COURT
PROSECUTIONS AGAINST THE INDIVIDUAL APPELLEES OR THE UNION UNDER THESE
STATUTES (AND THE UNION ASSERTS STANDING DERIVATIVELY) THEN THE YOUNGER
HURDLE MUST BE MET FOR THE REASONS STATED.  IF STANDING OF INDIVIDUAL
APPELLEES OR THE UNION TO CHALLENGE ONE OF THE STATUTES IS BASED SOLELY
ON THREATENED PROSECUTIONS, AND THE RELIEF PURSUED BELOW WITH RESPECT
TO THAT STATUTE IS DECLARATORY ONLY, THEN YOUNGER DOES NOT APPLY. 
STEFFEL V. THOMPSON, SUPRA.  IF APPELLEES SEEK INJUNCTIVE RELIEF WITH
RESPECT TO THE OPERATION OR ENFORCEMENT OF A STATUTE FOR THE VIOLATION
OF WHICH PROSECUTIONS ARE THREATENED, THE QUESTION OF WHETHER YOUNGER
APPLIES HAS NOT BEEN ANSWERED BY THIS COURT.  STEFFEL V. THOMPSON,
SUPRA, AT 463.  SINCE THE ISSUE MAY WELL NOT ARISE ON REMAND IT WOULD
BE PREMATURE NOW TO ATTEMPT TO RESOLVE IT.  THE DEVELOPMENT OF WHAT
RELIEF WAS AND STILL IS REQUESTED BY APPELLEES IS A MATTER BEST LEFT TO
THE DISTRICT COURT ON REMAND.  /9/  FINALLY, IF THE UNION SUES ON THE
BASIS OF INJURY TO ITS MEMBERS, THEN SINCE, AS TO A STATUTE CHALLENGED,
ONE MEMBER MUST, IF SUING ON HIS OWN BEHALF, MEET THE REQUIREMENTS OF
YOUNGER, THE UNION MUST DO SO, EVEN THOUGH OTHER OF ITS MEMBERS WOULD
NOT BE SO BURDENED IF THEY HAD BROUGHT SUIT INDIVIDUALLY.  THE
REQUIREMENTS OF YOUNGER ARE NOT TO BE EVADED BY ARTIFICIAL NICETIES. 
     (B) 

THE NEXT STEP IN THE ANALYSIS IS TO DEFINE THE BURDENS IMPOSED BY
YOUNGER V. HARRIS.  THERE WE HELD THAT BEFORE A FEDERAL COURT CAN
INTERFERE WITH STATE CRIMINAL PROCEEDINGS GREAT AND IMMEDIATE
IRREPARABLE INJURY MUST BE SHOWN "ABOVE AND BEYOND THAT ASSOCIATED WITH
THE DEFENSE OF A SINGLE PROSECUTION BROUGHT IN GOOD FAITH."  401 U.S.,
AT 48.  THE INJURY MUST INCLUDE, EXCEPT IN EXTREMELY RARE CASES, "THE
UNUSL PREREQUISITES OF BAD FAITH AND HARASSMENT."  ID., AT 53.  IN
YOUNGER THE COURT MADE CLEAR THAT THE MERE FACT THAT THE STATUTE UNDER
WHICH THE FEDERAL COURT PLAINTIFF IS BEING PROCEEDED AGAINST IS
UNCONSTITUTIONAL ON ITS FACE "DOES NOT IN ITSELF JUSTIFY AN INJUNCTION
AGAINST GOOD-FAITH ATTEMPTS TO ENFORCE IT."  ID., AT 54.  THE COURT
DESCRIBED AS "IMPORTANT AND NECESSARY" THE STATE'S TASK OF ENFORCING
STATUTES WHICH MAY HAVE AN INCIDENTAL INHIBITING EFFECT ON FIRST
AMENDMENT RIGHTS, "AGAINST SOCIALLY HARMFUL CONDUCT THAT THE STATE
BELIEVES IN GOOD FAITH TO BE PUNISHABLE UNDER ITS LAWS AND THE
CONSTITUTION."  ID., AT 52. 

YOUNGER PRINCIPLES NOT ONLY MANDATE FEDERAL COURT ABSTENTION IN THE
CASE OF GOOD FAITH ENFORCEMENT OF FACIALLY UNCONSTITUTIONAL STATUTES,
BUT ALSO REQUIRE THAT CLAIMS OF UNCONSTITUTIONALITY, OTHER THAN FACIAL
INVALIDITY, BE PRESENTED, IN THE FIRST INSTANCE, TO THE STATE COURT IN
WHICH THE CRIMINAL PROSECUTION INVOLVING THE CLAIMED CONSTITUTIONAL
DEPRIVATION IS PENDING.  IN PEREZ V. LEDESMA, 401 U.S. 82 (1971), THE
UNITED STATES DISTRICT COURT UPHELD THE CHALLENGED LOUISIANA ANTI
OBSCENITY STATUTE AS VALID ON ITS FACE /10/  BUT RULED THAT THE ARRESTS
OF THE STATE COURT DEFENDANTS-FEDERAL COURT PLAINTIFFS AND THE SEIZURE
OF THE ALLEGEDLY OBSCENE MATERIALS WERE INVALID BECAUSE OF A LACK OF A
PRIOR ADVERSARY HEARING ON THE CHARACTER OF THE MATERIALS.  WE HELD
SUCH INTERFERENCE TO BE IMPROPER: 

"THE PROPRIETH OF ARRESTS AND THE ADMISSIBILITY OF EVIDENCE IN STATE
CRIMINAL PROSECUTIONS ARE ORDIANRILY MATTERS TO BE RESOLVED BY STATE
TRIBUNALS, SEE STEFANELLI V. MINARD, 342 U.S. 117 (1951), SUBJECT, OF
COURSE, TO REVIEW BY CERTIORARI OR APPEAL IN THIS COURT OR, IN A PROPER
CASE, ON FEDERAL HABEAS CORPUS.  HERE LEDESMA WAS FREE TO PRESENT HIS
FEDERAL CONSTITUTIONAL CLAIMS CONCERNING ARREST AND SEIZURE OF
MATERIALS OR OTHER MATTERS TO THE LOUISIANA COURTS IN THE MANNER
PERMITTED IN THAT STATE.  ONLY IN CASES OF PROVEN HARASSMENT OR
PROSECUTIONS UNDERTAKEN BY STATE OFFICIALS IN BAD FAITH WITHOUT HOPE OF
OBTAINING A VALID CONVICTION AND PERHAPS IN OTHER EXTRAORDINARY
CIRCUMSTANCES WHERE IRREPARABLE INJURY CAN BE SHOWN IS FEDERAL
INJUNCTIVE RELIEF AGAINST PENDING STATE PROSECUTIONS APPROPRIATE.  . .
. ##HC 835 THERE IS NOTHING IN THE RECORD BEFORE US TO SUGGEST THAT
LOUISIANA OFFICIALS UNDERTOOK THESE PROSECUTIONS OTHER THAN IN A GOOD
FAITH ATTEMPT TO ENFORCE THE STATE'S CRIMINAL LAWS."  ID., AT 84 - 85. 

A STATE COURT IS PRESUMED TO BE CAPABLE OF FULFILLING ITS "SOLEMN
RESPONSIBILITY . . . 'TO GUARD, ENFORCE, AND PROTECT EVERY RIGHT
GRANTED OR SECURED BY THE CONSTITUTION OF THE UNITED STATES . . . .' 
ROBB V. CONNOLLY, 111 U.S. 624, 637 (1884)."  STEFFEL V. THOMPSON, 415
U.S., AT 460 - 461.  YET A COURT CANNOT EFFECTIVELY FULFILL ITS
RESPONSIBILITY WHEN THE PROSECUTORIAL AUTHORITIES TAKE DELIBERATE
ACTION, IN BAD FAITH, UNFAIRLY TO DEPRIVE A PERSON OF A REASONABLE AND
ADEQUATE OPPORTUNITY TO MAKE APPLICATION IN THE STATE COURTS FOR
VINDICATION OF HIS CONSTITUTIONAL RIGHTS.  WHEN SUCH AN INDIVIDUAL,
DEPRIVED OF MEANINGFUL ACCESS TO THE STATE COURTS, FACES IRREPARABLE
INJURY TO CONSTITUTIONAL RIGHTS OF GREAT AND IMMEDIATE MAGNITUDE,
EITHER IN THE IMMEDIATE SUIT OR IN THE SUBSTANTIAL LIKELIHOOD OF
"REPEATED PROSECUTIONS TO WHICH HE WILL BE SUBJECTED," YOUNGER V.
HARRIS, 401 U.S., AT 49, AND THE INJURY DEMANDS PROMPT RELIEF, FEDERAL
COURTS ARE NOT PREVENTED BY CONSIDERATIONS OF COMITY FROM GRANTING THE
EXTRAORDINARY REMEDY OF INTERFERENCE IN PENDING STATE CRIMINAL
PROSECUTIONS. 

A BREAKDOWN OF THE STATE JUDICIAL SYSTEM WHICH WOULD ALLOW FEDERAL
INTERVENTION WAS THE ALLEGATION OF APPELLANTS IN DOMBROWSKI V. PFISTER,
380 U.S. 479 (1965).  IN THAT CASE APPELLANTS HAD OFFERED TO PROVE,
INTER ALIA, THAT THE STATE PROSECUTOR WAS HOLDING PUBLIC HEARINGS AT
WHICH WERE BEING USED PHOTOSTATIC COPIES OF ILLEGALLY SEIZED EVIDENCE,
WHICH EVIDENCE HAD ALREADY BEEN ORDERED SUPPRESSED BY A STATE COURT. 
IT WAS ALLEGED FURTHER THAT THE PROSECUTOR WAS THREATENING TO USE OTHER
COPIES OF THE ILLEGALLY SEIZED DOCUMENTS BEFORE THE GRAND JURY TO
OBTAIN INDICTMENTS.  IF PROVED, THE ALLEGATIONS IN DOMBROWSKI MADE OUT
A CLEAR CASE OF A BREAKDOWN IN THE CHECKS AND BALANCES IN THE STATE
CRIMINAL JUSTICE SYSTEM.  THE COURTS HAD LOST CONTROL OF A PROSECUTOR
EMBARKED ON AN ALLEGED CAMPAIGN OF HARASSMENT OF APPELLANTS, DESIGNED
TO DISCOURAGE THE EXERCISE OF THEIR CONSTITUTIONAL RIGHTS.  UNDER SUCH
CIRCUMSTANCES FEDERAL INTERVENTION WOULD BE AUTHORIZED. 

TO MEET THE YOUNGER TEST THE FEDERAL PLAINTIFF MUST SHOW MANIFEST
BAD FAITH AND INJURY THAT IS GREAT, IMMEDIATE, AND IRREPARABLE,
CONSTITUTING HARASSMENT OF THE PLAINTIFF IN THE EXERCISE OF HIS
CONSTITUTIONAL RIGHTS, AND RESULTING IN A DEPRIVATION OF MEANINGFUL
ACCESS TO THE STATE COURTS.  THE FEDERAL PLAINTIFF MUST PROVE BOTH BAD
FAITH AND REQUISITE INJURY.  IN JUDGING WHETHER A PROSECUTION HAS BEEN
COMMENCED IN BAD FAITH, THE FEDERAL COURT IS ENTITLED TO TAKE INTO
CONSIDERATION THE FULL RANGE OF CIRCUMSTANCES SURROUNDING THE
PROSECUTIONS WHICH THE FEDERAL PLAINTIFF WOULD HAVE THE DISTRICT COURT
INTERFERE WITH.  A FEDERAL COURT MUST BE CAUTIOUS, HOWEVER, AND
RECOGNIZE THAT OUR CRIMINAL JUSTICE SYSTEM WORKS ONLY BY ACORDING BROAD
DISCRETION TO THOSE CHARGED TO ENFORCE LAWS.  CF. SANTOBELLO V. NEW
YORK, 404 U.S. 257 (1971).  IN THIS REGARD, PROSECUTORS WILL OFTEN, IN
GOOD FAITH, CHOOSE NOT TO PROSECUTE OR TO DISCONTINUE PROSECUTIONS FOR
ENTIRELY LEGITIMATE REASONS.  AN INDIVIDUAL, ONCE ARRESTED, DOES NOT
HAVE A "RIGHT" TO PROCEED TO TRIAL IN ORDER TO MAKE CONSTITUTIONAL
CLAIMS RESPECTING HIS ARREST.  CONVERSELY, PROSECUTORS MAY PROCEED TO
TRIAL WITH LESS THAN AN "OPEN AND SHUT" CASE AGAINST THE DEFENDANTS. 
IN CAMERON V. JOHNSON, 390 U.S. 611, 621 (1968), THE COURT NOTED: 

"(THE QUESTION FOR THE DISTRICT COURT WAS NOT THE GUILT OR INNOCENCE
OF THE PERSONS CHARGED; THE QUESTION WAS WHETHER THE STATUTE WAS
ENFORCED AGAINST THEM WITH NO EXPECTATION OF CONVICTIONS BUT ONLY TO
DISCOURAGE EXERCISE OF PROTECTED RIGHTS.  ##HC 837 THE MERE POSSIBILITY
OF ERRONEOUS APPLICATION OF THE STATUTE DOES NOT AMOUNT 'TO THE
IRREPARABLE INJURY NECESSARY TO JUSTIFY A DISRUPTION OF ORDERLY STATE
PROCEEDINGS.'  DOMBROWSKI V. PFISTER, SUPRA, AT 485.  THE ISSUE OF
GUILT OR INNOCENCE IS FOR THE STATE COURT AT THE CRIMINAL TRIAL; THE
STATE WAS NOT REQUIRED TO PROVE APPELLANTS GUILTY IN THE FEDERAL
PROCEEDING TO ESCAPE THE FINDING THAT THE STATE HAD NO EXPECTATION OF
SECURING VALID CONVICTIONS."  (FOOT NOTE OMITTED.) 

ONE STEP REMOVED FROM THE DECISION OF THE PROSECUTOR TO PROSECUTE IS
THE DECISION OF THE POLICEMAN TO ARREST.  THE BAD FAITH NATURE OF A
PROSECUTION MAY SOMETIMES BE INFERRED FROM THE COMMON ACTIVITY OF THE
PROSECUTOR AND THE POLICE TO EMPLOY ARRESTS AND PROSECUTIONS UNLAWFULLY
TO DISCOURAGE THE EXERCISE OF CIVIL RIGHTS.  THE CONCLUSION THAT THE
PROSECUTOR AND POLICE ARE ACTING AS ONE TO DEPRIVE PERSONS OF THEIR
RIGHTS SHOULD NOT BE INFERRED TOO READILY ON THE BASIS OF POLICE ACTION
ALONE.  JUST AS IS THE CASE WITH PROSECUTORS, THE POLICE POSSESS BROAD
DISCRETION IN ENFORCING THE CRIMINAL LAWS.  POLICE CANNOT REASONABLY BE
EXPECTED TO ACT UPON A REALIZATION THAT A LAW THAT THEY ARE ASKED TO
ENFORCE MAY BE UNCONSTITUTIONAL.  EVEN WHEN POLICE CROSS THE LINE OF
LEGALITY AS THEY ENFORCE STATUTES THEY MAY NOT BE ACTING WILLFULLY; THE
PRECISE CONTOURS OF PROBABLE CAUSE, LIKE THE FOURTH AMENDMENT'S
STRICTURE AGAINST UNREASONABLE SEARCH AND SEIZURE ARE FAR FROM CLEAR. 
WHEN A POLICEMAN WILLFULLY ENGAGES IN PATENTLY ILLEGAL CONDUCT IN THE
COURSE OF AN ARREST THERE STILL SHOULD BE CLEAR AND CONVINCING PROOF,
BEFORE BAD FAITH CAN BE FOUND, THAT THIS WAS PART OF A COMMON PLAN OR
SCHEME, IN CONCERT WITH THE PROSECUTORIAL AUTHORITIES, TO DEPRIVE
PLAINTIFFS OF THEIR CONSTITUTIONAL RIGHTS.  WILLFUL, RANDOM ACTS OF
BRUTALITY BY POLICE, ALTHOUGH ABHORRENT IN THEMSELVES, AND SUBJECT TO
CIVIL REMEDIES, WILL NOT FORM A BASIS FOR A FINDING OF BAD FAITH.  THE
POLICE MAY, OF COURSE, EMBARK ON A CAMPAIGN OF HARASSMENT OF AN
INDIVIDUAL OR A GROUP OF PERSONS WITHOUT THE KNOWLEDGE OR ASSISTANCE OF
THE PROSECUTORIAL AUTHORITIES.  THE REMEDY IN SUCH A CASE WOULD NOT LIE
IN ENJOINING STATE PROSECUTIONS, WHICH WOULD PROVIDE NO REAL RELIEF,
BUT IN REACHING DOWN THROUGH THE STATE'S CRIMINAL JUSTICE SYSTEM TO
DEAL DIRECTLY WITH THE ABUSES AT THE PRIMARY LAW ENFORCEMENT LEVEL. 
CF. LANKFORD V. GELSTON, 364 F. 2D 197 (CA 4 1966).  SEE, INFRA. 

UNLESS THE INJURY CONFRONTING A STATE CRIMINAL DEFENDANT IS GREAT,
IMMEDIATE, AND IRREPARABLE, AND CONSTITUTES HARASSMENT, THE PROSECUTION
CANNOT BE INTERFERED WITH UNDER YOUNGER.  THE SEVERITY OF THE STANDARD
REFLECTS THE EXTREME RELUCTANCE OF FEDERAL COURTS TO INTERFERE WITH
PENDING STATE CRIMINAL PROSECUTIONS. 

IF THE FEDERAL COURT PLAINTIFF SEEKS INJUNCTIVE OR DECLARATORY
RELIEF BASED ON CLAIMED FACIAL INVALIDITY OF A STATUTE, THE INJURY MAY
DERIVE NOT ONLY FROM THE PROSECUTIONS THE PLAINTIFF IS CURRENTLY FACING
WHERE A VIOLATION OF THAT STATUTE IS ALLEGED, BUT ALSO FROM THE
PROBABALITY OF FUTURE PROSECUTIONS UNDER THAT STATUTE.  EVIDENCE OF
MULTIPLE ARRESTS AND PROSECUTIONS OF PERSONS OTHER THAN THE FEDERAL
PLAINTIFF UNDER THAT STATUTE MAY WELL BEAR ON THE LIKELIHOOD OF FUTURE
ARRESTS AND PROSECUTIONS OF THE FEDERAL PLAINTIFF.  A STATE CRIMINAL
DEFENDANT SEEKING RELIEF AGAINST MORE THAN ONE STATUTE, MUST PROVE THE
REQUISITE DEGREE OF INJURY SEPARATELY FOR EACH STATUTE HE CHALLENGES. 
ANY OTHER RULE WOULD ENCOURAGE INSUBSTANTIAL AND MULTIPLE ATTACKS ON
THE CONSTITUTIONALITY OF STATE STATUTES BY PERSONS HOPING TO MEET THE
STRICT STANDARDS OF INJURY BY ACCUMULATING EFFECTS UNDER MANY STATE
PROVISIONS IN ORDER TO REACH THE CONSTITUTIONAL MERITS OF ONLY ONE OR A
FEW.  FURTHERMORE, THE CONSIDERATIONS OF COMITY WHICH UNDERLIE YOUNGER
WOULD BE ILL SERVED IF A FEDERAL COURT WERE TO EMPLOY A SHOWING OF BAD
FAITH AND HARASSMENT RESPECTING PROSECUTIONS BROUGHT UNDER ONE FACIALLY
CHALLENGED STATUTE AS A PRETEXT FOR SEARCHING A STATE'S STATUTORY CODE
FOR UNCONSTITUTIONAL PROVISIONS TO STRIKE DOWN.  CF. BOYLE V. LANDRY,
401 U.S. 77, 81 (1971). 

THE SAME RULE MUST, PERFORCE, APPLY WHEN THE RELIEF SOUGHT IS
LIMITED IN SCOPE, BY WAY OF CONSTITUTIONAL CHALLENGES TO STATUTES AS
APPLIED, TO INTERFERENCE ONLY WITH SPECIFIC PROSECUTIONS.  SINCE NO
RELIEF IS REQUESTED WHICH COULD AFFECT THE FUTURE OPERATION OR
ENFORCEMENT OF A STATUTE (AS WOULD BE THE CASE WHEN A STATUTE IS
CHALLENGED ON ITS FACE), THE INJURY MUST DERIVE SOLELY FROM THE
IMMINENCE OF THE SINGLE PROSECUTION.  THE POSSIBILITY OF FUTURE
ARRESTS, UNDER COLOR OF ANY STATE STATUTES, IS IRRELEVANT TO PROOF OF
INJURY FROM THE CHALLENGED PROSECUTION.  IT WILL BE THE RARE CASE,
INDEED, WHERE A SINGLE PROSECUTION PROVIDES THE QUANTUM OF HARM THAT
WILL JUSTIFY INTERFERENCE.  ON THE OTHER HAND, IN THE CASE OF AN ATTACK
ON THE FACIAL CONSTITUTIONALITY OF A STATUTE, THE LIKELY PROSPECT OF
MULTIPLE PROSECUTIONS, BROUGHT ALSO IN BAD FAITH AND WITHOUT HOPE OF
CONVICTION, FOR THE VIOLATION OF THE SAME STATUTE WHICH FORMED THE
BASIS FOR THE PENDING PROSECUTIONS OF THE FEDERAL COURT PLAINTIFF,
MIGHT WELL CONSTITUTE A SUFFICIENT SHOWING OF HARM TO JUSTIFY A FEDERAL
COURT'S DECISION TO REACH THE CONSTITUTIONALITY OF THE STATUTE. 

A SPECIAL PROBLEM IN PROOF OF YOUNGER INJURY ARISES WITH THE UNION:
SHALL THE UNION BE PERMITTED TO AGGREGATE THE INJURIES WHICH ALL ITS
MEMBERS WILL REASONABLY SUFFER UNDER THE OPERATION OF STATUTES, OR MUST
THE INJURY TEST BE SATISFIED INDEPENDENTLY BY ONE PERSON WHO WAS AND IS
A MEMBER OF THE UNION?  FOR THE REASON EXPRESSED ABOVE AS TO WHY
PPROSECUTIONS OF UNION MEMBERS SHOULD BE ATTRIBUTED TO THE UNION FOR
YOUNGER PURPOSES--THAT ANY OTHER RULE WOULD ALLOW OF EASY AND UNFAIR
CIRCUMVENTION OF YOUNGER--THE NECESSARY INJURY MUST BE CONFRONTED BY
ANY SINGLE MEMBER.  /11/  IF NO SINGLE MEMBER FACES YOUNGER INJURY,
THEN THE UNION, WHICH OPERATES THROUGH ITS MEMBERS, CANNOT
REALISTICALLY BE SAID TO FACE SUCH INJURY. 

WITH THESE PRINCIPLES IN MIND IT IS APPROPRIATE TO TURN TO THE FACTS
IN THE INSTANT CASE.  THE DISTRICT COURT ASSUMED THAT YOUNGER WAS
APPLICABLE, AND HELD, ON THE BASIS OF THE FACTS THAT IT FOUND, THAT THE
REQUIREMENTS OF YOUNGER HAD BEEN MET.  THE DISTRICT COURT THEN
PROCEEDED TO THE CONSTITUTIONAL MERITS OF EACH OF THE CHALLENGED
STATUTES.  THE DISTRICT COURT'S YOUNGER HOLDING WAS IN ERROR. 

THERE IS NO REASON FOR DEFERRING REVIEW OF THE DISTRICT COURT'S
LEGAL CONCLUSION THAT YOUNGER WAS SATISFIED, ALTHOUGH THE COURT WOULD,
APPARENTLY, ALLOW APPELLEES TO HAVE A SECOND CHANCE AT PROVING THIS
ELEMENT OF THEIR CASE.  ALTHOUGH THE TRIAL OF THIS ACTION TOOK PLACE IN
1968, THE DISTRICT COURT'S DECISION HAD NOT BEEN HANDED DOWN BY THE
TIME YOUNGER WAS ISSUED IN 1971.  IN SEPTEMBER 1971, THE PARTIES WERE
REQUESTED BY THE DISTRICT COURT TO FILE SUPPLEMENTAL BRIEFS ON THE
IMPACT OF YOUNGER ON THIS CAUSE.  IN THEIR BRIEFS, APPELLANTS ARGUED
THAT THE FEDERAL COUT WAS REQUIRED UNDER YOUNGER TO ABSTAIN, WHILE
APPELLEES ARGUED THAT YOUNGER DID NOT APPLY TO THE INSTANT CASE, AND,
ALTERNATIVELY, THAT IF YOUNGER DID APPLY THE TEST OF YOUNGER HAD BEEN
MET.  APPELLEES DID NOT REQUEST HEARINGS TO ADDUCE FURTHER PROOF
RELATING TO YOUNGER BAD FAITH AND HARASSMENT.  THERE IS, THEREFORE, NO
BASIS FOR REOPENING THE MATTER ON REMAND, AND TAKING UP VALUABLE
JUDICIAL TIME RELITIGATING AN ISSUE AS TO WHICH BOTH SIDES HAVE HAD
THEIR DAY IN COURT.  FAILURE TO DECIDE NOW WHETHER APPELLES HAVE MET
THE YOUNGER REQUIREMENTS WITH RESPECT TO CHALLENGES TO THE FIVE
STATUTES WHOSE VALIDITY REMAINS IN ISSUE WOULD CAUSE NEEDLESS DELAY IN
A LAWSUIT ALREADY FAR REMOVED IN TIME FROM THE EVENTS WHICH
PRECIPITATED IT.  WITH RESPECT TO THE THREE REPEALED STATUTES, IF THE
ACTION IS NOT MOOT APPELLEES WILL BE MET WITH A YOUNGER BURDEN THEY
HAVE BEEN UNABLE TO SATISFY.  WITH RESPECT TO THE TWO EXTANT STATUTES,
THE ACTION WILL BE MOOT, APPELLEES WILL HAVE FAILED TO SATISFY YOUNGER,
OR APPELLEES WILL NOT HAVE HAD TO SATISFY YOUNGER, ONLY HAVING BEEN
THREATENED WITH PROSECUTIONS.  IN ANY CASE, RESOLUTION OF THE YOUNGER
ISSUES IN THIS CASE AT THIS TIME BY THE COURT WILL EXPEDITE PROCEEDINGS
ON REMAND AND REMOVE FROM THIS SUIT CONTROVERTED MATTERS RIPE FOR
JUDICIAL DETERMINATION. 

APPELLEES CAN, OF COURSE, SEEK TO AMEND THEIR AMENDED COMPLAINT TO
MAKE FURTHER ALLEGATIONS OF FACT REGARDING THE EVENTS WHICH TOOK PLACE
DURING THE ONE-YEAR STRIKE, AND THE DISTRICT COURT WILL THEN HAVE TO
JUDGE WHETHER AFTER NEARLY SEVEN YEARS "JUSTICE SO REQUIRES" THE
AMENDMENT.  FED. RULE CIV. PROC. 15(A). 

THE FINDINGS OF FACT BY THE DISTRICT COURT DO NOT JUSTIFY THE LEGAL
CONCLUSION THAT ANY OF THE APPELLEES WERE IN DANGER OF SUFFERING HARM
THAT WAS GREAT, IMMEDIATE, AND IRREPARABLE, AND CONSTITUTED HARASSMENT,
WITH RESPECT TO ANY ONE OF THE STATUTES.  SUCH A SHOWING MUST BE MADE
BY EACH APPELLEE SEPARATELY REGARDING EACH STATUTE.  I NOW TURN TO AN
ALALYSIS OF THE FACTS, FIRST ON THE INJURY-HARASSMENT ISSUE, AND THEN
TO DETERMINE WHETHER THERE WAS BAD FAITH. 

THE ONLY PERSONS FOUND TO HAVE BEEN ARRESTED FOR VIOLATING TEX.
PENAL CODE, ART. 439 (UNLAWFUL ASSEMBLY), WERE THE TWO LEADERS OF THE
JANUARY 26, 1967, PRAYER VIGIL.  FOR FIVE MONTHS THEREAFTER NO ARRESTS
TOOK PLACE UNDER THIS STATUTE.  AT THE END OF MAY 1967, 14 OTHER
PERSONS /12/  WERE ARRESTED FOR TRESPASSING, AND LATER CHARGED WITH
UNLAWFUL ASSEMBLY.  THESE LATTER CHARGES WERE PENDING ONLY FOR THREE
DAYS BEFORE BEING DROPPED AND REPLACED WITH CHARGES OF SECONDARY
PICKETING AND BOYCOTTING.  THE EVIDENCE RELATING TO ART. 439 IS CLEARLY
INSUFFICIENT TO SUSTAIN ANY INFERENCE THAT ANY APPELLEE, INCLUDING THE
UNION, FACED THE PROSPECT OF REPEATED ARRESTS IN THE FUTURE UNDER THIS
STATUTE.  THERE IS NO SHOWING THAT HAVING TO DEFEND THE STATE CRIMINAL
ACTIONS INSTITUTED AS A RESULT OF THE ARRESTS THAT WERE MADE UNDER THE
STATUTE WOULD BE IN ANY MANNER UNUSUALLY ONEROUS AND SERIOUSLY DAMAGING
TO ANY OF THE ARRESTEES.  THEY WERE TRADITIONAL ARRESTS WITH
TRADITIONAL BURDENS OF DEFENDING AGAINST CHARGES. 

ON TWO OCCASIONS ARRESTS WERE MADE FOR VIOLATING TEX. PENAL CODE,
ART. 474 (BREACH OF THE PEACE): OF RAYMOND CHANDLER ON OCTOBER 12,
1966, AND OF NINE PERSONS (NOT APPARENTLY INCLUDING MR. CHANDLER /13/
ON FEBRUARY 1, 1967.  FROM FEBRUARY TO JUNE 1967, NO ARRESTS WERE MADE
AND NO CHARGES WERE FILED FOR VIOLATIONS OF THIS PROVISION.  NO
INFERENCE CAN BE MADE THAT ANY PERSON FACES THE LIKELIHOOD OF REPEATED
AND UNWARRANTED ARRESTS UNDER THIS STATUTE.  THERE IS NOTHING IN THE
FINDINGS TO SUGGEST AND NO REASON TO BELIEVE THAT THE FEW PROSECUTIONS
RESULTING FROM ENFORCEMENT OF THIS STATUTE WILL RESULT IN ANY
EXTRAORDINARY HARDSHIP DIFFERING FROM THOSE ORDINARILY ASSOCIATED WITH
THE USUAL DEFENSE OF A CRIMINAL ACTION. 

IT APPEARS THAT FIVE MEMBERS OF THE UNION WERE ARRESTED FOR
VIOLATING TEX. PENAL CODE, ART. 482 (ABUSIVE LANGUAGE) ON JANUARY 26,
1967, ABOUT MIDWAY THROUGH THE STRIKE.  /14/  THE ABSENCE OF YOUNGER
INJURY IS EVEN CLEARER IN THE CHALLENGE TO THIS STATUTE. 

ANOTHER EXAMPLE OF A SINGLE INSTANCE OF ENFORCEMENT OF A STATUTE IS
THE ARREST OF 13 PERSONS, ON ONE OCCASION, MAY 31, 1967, FOR VIOLATING
TEX. REV. CIV. STAT., ART. 5154D (MASS PICKETING).  THE FACTS ARE
TOTALLY INSUFFICIENT FOR A FINDING OF THE SERIOUS INJURY REQUIRED UNDER
YOUNGER. 

FOURTEEN PERSONS WHO WERE ARRESTED FOR TRESPASSING ON MAY 26, 1967,
WERE LATER CHARGED WITH UNLAWFUL ASSEMBLY, BUT THOSE CHARGES WERE
PENDING ONLY FOR THREE DAYS, AT THE END OF WHICH TIME THE 14 WERE
CHARGED WITH VIOLATING TEX. REV. CIV. STAT., ART. 5154F, THE SECONDARY
PICKETING AND BOYCOTT PROVISION.  THE ONLY OTHER TIME PERSONS WERE
CHARGED WITH VIOLATING ACT.  5154F WAS ON NOVEMBER 9, 1966, WHEN A
COMPLAINT WAS FILED AGAINST 10 PERSONS FOR ILLEGAL PICKETING ON
NOVEMBER 3, 1966.  THE DISTRICT COURT DOES NOT CHALLENGE THE GROUNDS
FOR ISSUING THE COMPLAINT, BUT QUESTIONS ONLY THE MANNER OF THE CUSTODY
FOLLOWING THE ARREST OF ONE OF THE 10, BUT THAT OBJECTIONABLE ACTION
HAD NOTHING WHATEVER TO DO WITH THE OFFENSE FOR WHICH THE INDIVIDUAL
WAS ARRESTED.  AS WITH THE FOUR OTHER STATUTES FOUND UNCONSTITUTIONAL,
THE TEST OF SERIOUS INJURY UNDER YOUNGER IS NOT MET BY SUCH AN
INADEQUATE SHOWING OF FUTURE HARM. 

APPELLEES ALSO FAILED TO PROVE THAT ANY PROSECUTIONS WHICH MIGHT
HAVE RESULTED FROM THESE ARRESTS WERE BROUGHT IN BAD FAITH.  VERY
NEARLY ALL THE EVIDENCE OF BAD FAITH FOUND BY THE DISTRICT COURT
RELATES TO ACTIVITIES OF THE TEXAS RANGERS AND THE STARR COUNTY
SHERIFF'S OFFICE, NOT OF THE PROSECUTORS.  EVIDENCE BEARING ON THE
ALLEGATIONS OF PROSECUTORIAL BAD FAITH IS RESTRICTED TO THREE ITEMS:
FIRST, THE DISTRICT COURT IS MILDLY CRITICAL OF AN INVESTIGATION,
APPARENTLY INADEQUATE, MADE BY THE COUNTY ATTORNEY OF STARR COUNTY INTO
THE SHOVING INCIDENT OF MAY 11, 1967, AND THE SUBSEQUENT DECISION NOT
TO GO FORWARD WITH THE COMPLAINT WHICH HAD BEEN FILED BY THE TWO MEN
WHO HAD BEEN SHOVED; SECOND, A PROSECUTOR CONCEIVABLY COULD HAVE HAD
SOMETHING TO DO WITH THE EXCESSIVELY HIGH BOND SET AFTER RAYMOND
CHANDLER'S ARREST ON OCTOBER 12, 1966, BUT THERE IS NO FINDING ON THIS
POINT; THIRD, THOSE ARRESTED ON FEBRUARY 1, 1967, FOR DISTURBING THE
PEACE WERE INFORMED BY THE JUSTICE OF THE PEACE, ON INSTRUCTIONS FROM
THE COUNTY ATTORNEY, THAT IF THEY EVER APPEARED IN THAT COURT AGAIN
UNDER THE SAME CHARGE THEY WOULD HAVE TO POST BOND.  /15/  THE RECORD
DOES NOT CONTAIN A FINDING THAT PROSECUTIONS WERE BROUGHT AND THEN
PROMPTLY DROPPED; IN ONE INSTANCE PERSONS ARRESTED FOR VIOLATING AN
UNCHALLENGED STATUTE ON MAY 26, 1967, WERE LATER CHARGED FIRST WITH
VIOLATING TEX. PENAL CODE, ART. 439, A CHALLENGED STATUTE, AND
SUBSEQUENTLY WITH VIOLATING TEX. REV. CIV. STAT., ART. 5154F, ALSO A
CHALLENGED STATUTE. 

NOR CAN THE ISOLATED INSTANCES OF POLICE MISCONDUCT BY TEXAS RANGERS
AND STARR COUNTY SHERIFF'S DEPUTIES FOUND BY THE DISTRICT COURT TURN A
SERIES OF PROSECUTIONS, APPARENTLY INSTITUTED IN GOOD FAITH (EVEN
ASSUMING THAT ALL PERSONS WHO WERE ARRESTED ARE OR WERE FACING
PROSECUTIONS AS A RESULT OF THEIR ARRESTS), INTO A CAMPAIGN OF TERROR
AGAINST THE UNION WHICH COULD ONLY BE REMEDIED BY RECOURSE TO THE
FEDERAL COURTS.  EXCLUDING THE DISTRIBUTION OF THE ANTIUNION NEWSPAPER,
WHICH ACTIVITY COULD HARDLY BE SAID TO HAVE A DIRECT AND IMMEDIATE
DISRUPTIVE EFFECT ON DAILY PICKETING AND OTHER ORGANIZATIONAL EFFORTS
OF THE UNION, THE DISTRICT COURT FOUND ONLY 12 DAYS DURING THIS LONG
CONTROVERSY IN WHICH LAW ENFORCEMENT OR JUDICIAL OFFICERS OF TEXAS
ACTED IN AN IMPROPER FASHION IN DEALING WITH STRIKERS OR STRIKE
SYMPATHIZERS; THIS IS AN AVERAGE OF ONE PER MONTH.  ONE OF THE "ABUSES"
FOUND BY THE DISTRICT COURT WAS THE SHOVING OF TWO PERSONS.  ON
ANOTHER OCCASION, MAY 26, 1967, A CAMERA WAS CONFISCATED, TWO MEN WERE
HELD NEAR A PASSING TRAIN, AND FOUR PERSONS WERE "ROUGHLY HANDLED," 347
F. SUPP., AT 615, AFTER THEIR ARREST BY THE TEXAS RANGERS.  ALL THAT
HAPPENED ON MAY 11, 1967, WAS THAT CAPTIAN ALEE /16/  OF THE TEXAS
RANGERS TOLD PICKETING STRIKERS THAT HE COULD GET THEM ALL JOBS AT THE
UNION-DEMANDED WAGE.  "(PICKETING OCCURRED EVERY DAY," OF THE STRIKE
WITH THE EXCEPTION OF SUNDAYS, ID., AT 612, YET NO ALLEGEDLY HARASSING
ACTION WAS TAKEN AGAINST THE STRIKERS FROM JUNE 8, 1966, TO OCTOBER 12,
1966, A PERIOD OF OVER FOUR MONTHS, OR FROM FEBRUARY 1, 1967, TO MAY
11, 1967, A PERIOD OF OVER THREE MONTHS.  FINALLY, IT IS NOT SURPRISING
THAT THE TEXAS RANGERS AND SHERIFF'S DEPUTIES WOULD HAVE FOUND
OCCASIONS TO ENFORCE LAWS GOVERNING PICKETING, ASSEMBLY, AND THE PEACE
OF THE COMMUNITY, AGAINST PERSONS WHO SOUGHT TO ATTAIN THEIR GOALS BY
PICKETING, ASSEMBLING, AND OTHERWISE SEEKING TO MAKE THEMSELVES AND
THEIR CAUSE HEARD IN STARR COUNTY.  JUDGING BY THE INFREQUENCY OF
OCCASIONS OF ENFORCEMENT OF SUCH LAWS THE STRIKE DID NOT BECOME AN
OBJECT OF OBSESSIVE INTEREST WITH THE LAW ENFORCEMENT PERSONNEL IN
STARR COUNTY. 

IN SUM, THE FINDINGS CANNOT BE READ AS SHOWING EITHER BAD FAITH OR
THE REQUISITE INJURY WITH RESPECT TO THE OPERATION AND ENFORCEMENT OF
ANY OF THE FIVE CHALLENGED STATUTES.  APPELLEES HAVE TOTALLY FAILED TO
SATISFY THE DEMANDS OF YOUNGER V. HARRIS, 401 U.S. 37 (1971). 

        IV 

THE DISTRICT COURT NOT ONLY DECLARED FIVE TEXAS STATUTES
UNCONSTITUTIONAL AND ENJOINTED THEIR ENFORCEMENT, BUT ALSO ISSUED AN
INJUNCTION AGAINST WHAT I SHALL TERM "POLICE MISCONDUCT."  THE
INJUNCTION AGAINST POLICE MISCONDUCT IS ISSUED ON BEHALF OF THE NAMED
PLAINTIFFS AND THE CLASS THEY REPRESENT, 

"TO-WIT, THE MEMBERS OF PLAINTIFF UNITED FARM WORKERS ORGANIZING
COMMITTEE, AFL-CIO, AND ALL OTHER PERSONS WHO BECAUSE OF THEIR SYMPATHY
FOR OR VOLUNTARY SUPPORT OF THE AIMS OF SAID PLAINTIFF UNION HAVE
ENGAGED IN, ARE ENGAGING IN, OR MAY HEREAFTER ENGAGE IN PEACEFUL
PICKETING, PEACEFUL ASSEMBLY, OR OTHER ORGANIZATIONAL ACTIVITIES OF OR
IN SUPPORT OF SAID PLAINTIFF UNION OR WHO MAY ENGAGE IN CONCERT OF
ACTION WITH ONE OR MORE OF PLAINGIFFS FOR THE SOLICITATION OF
AGRICULTURAL WORKERS OR OTHERS TO JOIN OR MAKE COMMON CAUSE WITH THEM
IN MATTERS PERTAINING TO THE WORK AND LABOR OF AGRICULTURAL WORKERS." 
THE INJUNCTION ITSELF APEARS AS PARAGRAPH 16 OF THE DISTRICT COURTS
FINAL JUDGMENT.  THIS REMARKABLE INJUNCTION READS IN FULL AS FOLLOWS: 

     "16. IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT

THAT DEFENDANTS, THEIR SUCCESSORS, AGENTS AND EMPLOYEES, AND

  PERSONS ACTING IN CONCERT WITH THEM, ARE PERMANENTLY ENJOINED AND

  RESTRAINED FROM ANY OF THE FOLLOWING ACTS OR CONDUCT DIRECTED

  TOWARD OR APPLIED TO PLAINTIFFS AND THE PERSONS THEY REPRESENT,

  TO-WIT:  ##HC 847 

      "A.  USING IN ANY MANNER DEFENDANTS' AUTHORITY AS PEACE

  OFFICERS FOR THE PURPOSE OF PREVENTING OR DISCOURAGING PEACEFUL

  ORGANIZATIONAL ACTIVITIES WITHOUT ADEQUATE CAUSE. 

     "B.  INTERFERING BY STOPPING, DISPERSING, ARRESTING, OR

  IMPRISONING ANY PERSON, OR BY ANY OTHER MEANS, WITH PICKETING,

  ASSEMBLING, SOLICITATION, OR ORGANIZATIONAL EFFORT WITHOUT

  ADEQUATE CAUSE. 

     "C.  ARRESTING ANY PERSON WITHOUT WARRANT OR WITHOUT PROBABLE

  CAUSE WHICH PROBABLE CAUSE IS ACCOMPANIED BY INTENTION TO PRESENT

  APPROPRIATE WRITTEN COMPLAINT TO A COURT OF COMPETENT

JURISDICTION. 

     "D.  STOPPING, DISPERSING, ARRESTING OR IMPRISONING ANY PERSON

  WITHOUT ADEQUATE CAUSE BECAUSE OF THE ARREST OF SOME OTHER

  PERSON. 

     "E.  AS USED IN THIS PARAGRAPH 16, SUBPARAGRAPHS A, B AND D

  ABOVE, THE TERM 'ADEQUATE CAUSE' SHALL MEAN (1) ACTUAL

  OBSTRUCTION OF A PUBLIC OR PRIVATE PASSWAY, ROAD, STREET, OR

ENTRANCE WHICH ACTUALLY CAUSES UNREASONABLE INTERFERENCE WITH

  INGRESS, EGRESS, OR FLOW OF TRAFFIC; OR (2) FORCE OR VIOLENCE, OR

  THE THREAT OF FORCE OR VIOLENCE, ACTUALLY COMMITTED BY ANY PERSON

  BY HIS OWN CONDUCT OR BY ACTUALLY AIDING, ABETTING, OR

  PARTICIPAIING IN SUCH CONDUCT BY ANOTHER PERSON; OR (3) PROBABLE

  CAUSE WHICH MAY CAUSE A DEFENDANT TO BELIEVE IN GOOD FAITH THAT

  ONE OR MORE PARTICULAR PERSONS DID VIOLATE A CRIMINAL LAW OF THE

  STATE OF TEXAS OTHER THAN THOSE SPECIFIC LAWS HEREIN DECLARED

  UNCONSTITUTIONAL, OR A MUNICIPAL ORDINANCE." 

THIS COURT LACKS JURISDICTION TO REVIEW THIS INJUNCTION ON DIRECT
APPEAL FROM THE DISTRICT COURT; BUT ASSUMING THIS COURT HAS
JURISDICTION OVER THIS PORTION OF THE FINAL JUDGMENT, IT SHOULD BE
REMANDED TO THE DISTRICT COURT ALONG WITH THE REMAINDER OF ITS
JUDGMENT.  FOR MY PART, IF IT WERE TO RULE ON THE MERITS OF THE
INJUNCTION AGAINST POLICE MISCONDUCT I WOULD REVERSE. 

        (A) 

THE COURT DOES NOT HAVE JURISDICTION ON APPEAL OVER PARAGRAPH 16 OF
THE FINAL JUDGMENT.  THE PROPER COURSE IS TO VACATE AND REMAND THIS
PORTION OF THE DISTRICT COURT JUDGMENT FOR ENTRY OF A FRESH JUDGMENT
FROM WHICH TIMELY APPEAL CAN BE TAKEN TO THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT.  SEE EDELMAN V. TOWNSEND, 412 U.S. 914, 915 (1973). 

THIS COURT MAY HEAR ON APPEAL 

"AN ORDER GRANTING OR DENYING, AFTER NOTICE AND HEARING, AN
INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION, SUIT OR
PROCEEDIGN REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND DETERMINED
BY A DISTRICT COURT OF THREE JUDGES."  28 U.S.C. 1253. 

CONGRESS HAS PROVIDED, BY 28 U.S.C. 2281 THAT NO INTERLOCUTORY OR
PERMANENT INJUNCTION AGAINST THE ENFORCEMENT, OPERATION OR EXECUTION OF
A STATE STATUTE MAY BE GRANTED ON THE GROUND OF UNCONSTITUTIONALITY
UNLESS THE APPLICATION FOR THE INJUNCTION IS HEARD AND DETERMINED BY A
THREE-JUDGE DISTRICT COURT. 

"THIS COURT HAS MORE THAN ONCE STATED THAT ITS JURISDICTION UNDER
THE THREE-JUDGE COURT ACT IS TO BE NARROWLY CONSTRUED SINCE 'ANY LOOSE
CONSTRUCTION OF THE REQUIREMENTS OF (THE ACT) WOULD DEFEAT THE PURPOSES
OF CONGRESS . . . TO KEEP WITHIN NARROW CONFINES OUR APPELLATE
DOCKET.'  PHILLIPS V. UNITED STATES (312 U.S. 246,) 250."  GOLDSTEIN V.
COX, 396 U.S. 471, 478 (1970).  IN CONSONANCE WITH THAT PHILOSOPHY IN
PUBLIC SERVICE COMM'N V. BRASHEAR LINES, 312 U.S. 621 (1941), THE
COURT, IN A UNANIMOUS OPINION WRITTEN BY MR. JUSTICE BLACK, HELD THAT
FOLLOWING THE DENIAL BY A THREE-JUDGE DISTRICT COURT OF THE APPLICATION
FOR AN INJUNCTION AGAINST AN ALLEGEDLY UNCONSTITUTIONAL STATE STATUTE,
A SINGLE DISTRICT JUDGE SHOULD HAVE HEARD THE MOTION TO ASSESS DAMAGES
ARISING OUT OF THE TEMPORARY RESTRAINING ORDER GRANTED BY A SINGLE
DISTRICT JUDGE PENING THE HEARING BY THE THREE-JUDGE COURT ON THE
INJUNCTION APPLICATION. 

"THE LIMITED STATUTORY DUTIES OF THE SPECIALLY CONSTITUTED THREE
JUDGE DISTRICT COURT HAD BEEN FULLY PERFORMED BEFORE THE MOTION FOR
ASSESSMENT OF DAMAGES WAS FILED.  FOR 266 OF THE JUDICIAL CODE PROVIDES
FOR A HEARING BY THREE JUDGES, INSTEAD OF ONE DISTRICT JUDGE, ONLY IN
CONNECTION WITH ADJUDICATION OF A VERY NARROW TYPE OF CONTROVERSY-
APPLICATIONS FOR TEMPORARY AND PERMANENT INJUNCTIONS RESTRAINING STATE
OFFICIALS FROM ENFORCING STATE LAWS OR ORDERS MADE PURSUANT THERETO
UPON THE GROUND THAT THE STATE STATUTES ARE REPUGNANT TO THE FEDERAL
CONSTITUTION.  THE MOTION FOR DAMAGES RAISED QUESTIONS NOT WITHIN THE
STATUTORY PURPOSE FOR WHICH THE TWO ADDITIONAL JUDGES HAD BEEN CALLED. 
THOSE QUESTIONS WERE THEREFORE FOR THE CONSIDERATION OF THE DISTRICT
COURT IN THE EXERCISE OF ITS ORDINARY JURISDICTION, AND THE THREE JUDGE
REQUIREMENT OF 266 HAD NO APPLICATION."  ID., AT 625 (FOOTNOTES
OMITTED).  THE COURT WAS CAREFUL TO STATE THAT A THREE-JUDGE COURT "HAS
JURISDICTION TO DETERMINE EVERY QUESTION INVOLVED IN TEH LITIGATION
PERTAINING TO THE PRAYER FOR AN INJUNCTION, IN ORDER THAT A SINGLE
LAWSUIT MAY AFFORD FINAL AND AUTHORITATIVE DECISION OF THE CONTROVERSY
BETWEEN THE PARTIES."  ID., AT 625 N. 5. 

WE REAFFIRMED OUR BRASHEAR HOLDING IN PEREZ V. LEGESMA, 401 U.S. 82
(1971).  IN PEREZ THE APPELLEES WERE CHARGED IN INFORMATIONS FILED IN
STATE COURT WITH VIOLATIONS OF A LOUISIANA STATUTE AND A LOCAL PARISH
ORDINANCE.  THE THREE-JUDGE FEDERAL DISTRICT COURT "HELD" THE STATE
STATUTE TO BE FACIALLY CONSTITUTIONAL, /17/  BUT RULED THAT ARRESTS AND
SEIZURES OF MATERIALS WERE INVALID AND ENTERED A SUPPRESSION ORDER AND
REQUIRED THE RETURN OF THE SEIZED MATERIALS TO THE APPELLEES.  THE
DISTRICT COURT ALSO EXPRESSED ITS VIEW THAT THE PARISH ORDINANCE WAS
INVALID.  THE DISTRICT JUDGE WHO INITIALLY REFERRED THE ACTION TO THE
THREE-JUDGE COURT ADOPTED THAT COURT'S VIEW AND DECLARED THE ORDINANCE
INVALID.  WE REFUSED TO REVIEW THE DECISION CONCERNING THE LOCAL
ORDINANCE, STATING: 

"EVEN IF AN ORDER GRANTING A DECLARATORY JUDGMENT AGAINST THE
ORDINANCE HAD BEEN ENTERED BY THE THREE-JUDGE COURT BELOW (WHICH IT HAS
NOT), THAT COURT WOULD HAVE BEEN ACTING IN THE CAPACITY OF A SINGLE
JUDGE COURT.  WE HELD IN MOODY V. FLOWERS, 387 U.S. 97 (1967), THAT A
THREE-JUDGE COURT WAS NOT PROPERLY CONVENED TO CONSIDER THE
CONSTITUTIONALITY OF A STATUTE OF ONLY LOCAL APPLICATION, SIMILAR TO A
LOCAL ORDINANCE.  UNDER 28 U.S.C. 1253 WE HAVE JURISDICTION TO CONSIDER
ON DIRECT APPEAL ONLY THOSE CIVIL ACTIONS 'REQUIRED . . . TO BE HEARD
AND DETERMINED'  BY A THREE-JUDGE COURT.  SINCE THE CONSTITUTIONALITY
OF THIS PARISH ORDINANCE WAS NOT 'REQUIRED . . . TO BE HEARD AND
DETERMINED' BY A THREE-JUDGE PANEL, THERE IS NO JURISDICTION IN THIS
COURT TO REVIEW THAT QUESTION. 

     "THE FACT THAT A THREE-JUDGE COURT WAS PROPERLY CONVENED IN

  THIS CASE TO CONSIDER THE INJUNCTIVE RELIEF REQUESTED AGAINST THE

  ENFORCEMENT OF THE STATE STATUTE, DOES NOT GIVE THIS COURT

  JURISDICTION ON DIRECT APPEAL OVER OTHER CONTROVERSIES WHERE

  THERE IS NO INDEPENDENT JURISDICTIONAL BASE.  EVEN WHERE A

  THREE-JUDGE COURT IS PROPERLY CONVENED TO CONSIDER ONE

  CONTROVERSY BETWEEN TWO PARTIES, THE PARTIES ARE NOT NECESSARILY

  ENTITLED TO A THREE-JUDGE COURT AND A DIRECT APPEAL ON OTHER

  CONTROVERSIES THAT MAY EXIST BETWEEN THEM.  ##HC 851 SEE PUBLIC

  SERVICE COMM'N V. BRASHEAR FREIGHT LINES, 306 U.S. 204 (1939)." 

  ID., AT 86 - 87.  /18/  (FOOTNOTE OMITTED.) 

BRASHEAR LINES AND PEREZ ARE AUTHORITY FOR THE PROPOSITION THAT A
THREE-JUDGE DISTRICT CONVENED UNDER 2281 MUST RESTRICT ITSELF NARROWLY
TO THE ADJUDICATION OF THOSE MATTERS WHICH BEAR DIRECTLY ON THE GRANT
OR DENIAL OF INJUNCTIVE RELIEF AGAINST STATE STATUTES.  SO LONG AS THE
CONSTITUTIONAL CLAIM IS NOT INSUBSTANTIAL THE THREE-JUDGE COURT MAY
CONSIDER NONCONSTITUTIONAL CLAIMS URGED ALTERNATIVELY IN SUPPORT OF THE
INJUNCTIVE RELIEF, AND WE HAVE JURISDICTION TO REVIEW SUCH
NONCONSTITUTIONAL PORTIONS OF THE DISTRICT COURT'S DECISION.  FLORIDA
LIME GROWERS V. JACOBSEN, 362 U.S. 73 (1960).  /19/  INDEED, A THREE
JUDGE DISTRICT COURT WOULD BE REQUIRED TO GIVE PRIORITY TO
CONSIDERATION OF A STATUTORY CLAIM OVER A CONSTITUTIONAL CLAIM.  ROSADO
V. WYMAN, 397 U.S. 397, 402 (1970).  HOWEVER, IN RULING ON
NONCONSTITUTIONAL CHALLENGES TO THE OPERATION OF STATE STATUTES, THE
DISTRICT COURT REMAINS CONCERNED WITH THE SAME FORM OF RELIEF-
INJUNCTIVE--DIRECTED AT THE SAME STATE STATUTES, AS IT WOULD IF IT WERE
RULING ON THE CONSTITUTIONAL CLAIM, AND IS NOT, THEREFORE, INVOLVED IN
SOLVING ANY "OTHER CONTROVERSY"  BETWEEN THE PARTIES.  PEREZ, SUPRA.
SIMILARLY, THE ONLY NONINJUNCTIVE RELIEF REGULARLY GRANTED BY THREE
JUDGE DISTRICT COURTS IS A DECLARATORY JUDGMENT OF
UNCONSTITUTIONALITY.  NOT ONLY IS A FINDING OF UNCONSTITITIONALITY A
NECESSARY CONCOMITANT TO THE ENJOINING OF THE OPERATION AND ENFORCEMENT
OF A STATE STATUTE ON CONSTITUTIONAL GROUNDS, BUT A DECLARATION OF
UNCONSTITUTIONALITY DOES NOT REACH IN ITS EFFECT BEYOND THE SAME STATE
STATUTES WHICH ARE SUBJECT TO THE INJUNCTION. 

A THREE-JUDGE DISTRICT COURT SHOULD NOT VENTURE BEYOND THESE TWO
NARROW AND NECESSARY EXCEPTIONS TO THE GENERAL RULE THAT A THREE-JUDGE
COURT IS NOT REQUIRED TO HEAR ANY MATTERS BEYOND THE CONSTITUTIONAL
CHALLENGE TO THE STATUTE WHICH LED TO ITS CONVENING.  FOR EXAMPLE, A
THREE-JUDGE COURT SHOULD NOT RETAIN JURISDICTION TO ASSESS DAMAGES,
BRASHEAR LINES, SUPRA, OR TO INSURE ENFORCEMENT OF A DECREE WHICH IT
ENTERED ADJUDGING THE STATUTE UNCONSTITUTIONAL.  CF. HAMILTON V. NAKAI,
453 F.2D 152, 160 - 161 (CA9 1971), SERT.  DENIED, 406 U.S. 945
(1972). 

ANY OTHER RULE WOULD 

"ENCUMBER THE DISTRICT COURT, AT A TIME WHEN DISTRICT COURT
CALENDARS ARE OVERBURDENED, BY CONSUMING THE TIME OF THREE FEDERAL
JUDGES IN A MATTER THAT WAS NOT REQUIRED TO BE DETERMINED BY A THREE
JUDGE COURT."  ROSADO V. WYMAN, SUPRA, AT 403.  AND ANY OTHER RULE
WOULD BURDEN THIS COURT THROUGH THE UNNECESSARY EXPANSION OF OUR
JURISDICTION ON DIRECT APPEAL.  THE DISTRICT COURT'S BRAOD INJUNCTION
AGAINST POLICE MISCONDUCT IN THIS CASE WITHOUT EVEN A SEMBLANCE OF
REASONED ANALYSIS PROVIDES A COMPELLING EXAMPLE OF THE NEED FOR A
REVIEW BY AN INTERMEDIATE APPELLATE TRIBUNAL TO SORT OUT THE FACTS AND
ISSUES NECESSARY FOR REVIEW HERE, SHOULD THAT OCCUR.  THIS CASE
PRESENTS A GLARING EXAMPLE OF AN UNDUE BURDEN PLACED ON THIS COURT:  TO
WRESTLE WITH DIFFICULT LEGAL ISSUES ON THE BASIS OF A RECORD
INADEQUATELY DIGESTED AND ALALYZED BY THE DISTRICT COURT AND UNTOUCHED
BY THE SCRUTINY OF A COURT OF APPEALS.  FROM ITS FINDINGS OF FACT THE
DISTRICT COURT HAS DRAWN ALMOST IMPRESSIONISTIC CONCLUSIONS REGARDING
THE SCOPE AND IMPACT OF THE PERCEIVED ABUSES OF THE TEXAS LAW
ENFORCEMENT AUTHORITIES.  IT IS AS IF THE DISTRICT COURT VIEWED THE
CONDUCT OF THE POLICE AND PROSECUTORS AS DIRECTED AGAINST ONE
INDIVIDUAL, RATHER THAN MANY, OVER A BRIEF PERIOD OF TIME, RATHER THAN
A YEAR.  THIS IS AN INSTANCE WHERE THE REMOTENESS OF INTERVENING
APPELLATE REVIEW WOULD HAVE PROVIDED A SALUTARY PERSPECTIVE ON THE
FACTUALLY COMPLEX AND IMPASSIONED DEBATE WAGED IN THE TRIAL COURT. 

EVEN IF THE GENERAL RULE WERE OTHER THAN THAT NO ANCILLARY RELIEF IN
AID OF INJUNCTIVE RELIEF SHOULD ISSUE FROM A THREE-JUDGE COURT, THE
INJUNCTION AGAINST POLICE MISCONDUCT IN THIS CASE COULD NOT BE
CONSIDERED TO BE ANCILLARY TO THE PRIMARY RELIEF SO AS TO CONFER
JURISDICTION UPON THIS COURT ON DIRECT APPEAL.  ENJOINING ENFORCEMENT
OF STATE STATUTES IS A FAR DIFFERENT ENTERPRISE FORM ENJOINING SPECIFIC
POLICE MISCONDUCT; A SEPARATE REVIEW OF THE FIRST BY THIS COURT AND THE
SECOND BY A COURT OF APPEALS WOULD NOT RESULT IN A FRAGMENTED APPEAL. 
IN THE APPLICATION OF THE YOUNGER V. HARRIS, 401 U.S. 37 (1971), TEST
OF "BAD FAITH AND HARRASSMENT" A COURT WOULD LOOK TO CERTAIN SPECIFIC
TYPES OF POLICE AND PROSECUTORIAL MISCONDUCT AS A PREDICATE FOR
REACHING THE MERITS OF THE CONSTITUTIONAL ATTACK AGAINST STATE STATUTES
FOR THE VIOLATION OF WHICH PERSONS ARE BEING SUBJECT TO PROSECUTION.  A
FINDING OF POLICE HARASSMENT NECESSARY FOR THE ISSUANCE OF AN
INJUNCTION AGAINST POLICE MISCONDUCT IS NOT QUASI-JURISDICTIONAL AS
WITH YOUNGER, BUT IS A DETERMINATION ON THE MERITS.  UNDER YOUNGER A
COURT IS CONCERNED PRINCIPALLY WITH POLICE AND PROSECUTORIAL MISCONDUCT
WHICH DENIES TO A PERSON SUBJECT TO THE STATE LAWS A FAIR OPPORTUNITY
TO HAVE HIS CHALLENGES TO THOSE LAWS HEARD BY THE STATE COURTS,
WHEREAS, IN WEIGHING WHETHER TO ISSUE AN INJUNCTION AGAINST POLICE
MISCONDUCT, A COURT WOULD LIKELY BE CONCERNED SOLELY WITH POLICE
MISCONDUCT WHICH ITSELF DENIES PERSONS THEIR CONSTITUTIONAL RIGHTS. 
WHILE THERE MAY BE SOME OVERLAP OF FACTS POSSIBLY RELEVANT TO THE QUASI
JURISDICTIONAL YOUNGER V. HARRIS DETERMINATION AND TO THE MERITS OF
WHETHER TO GRANT AN INJUNCTION AGAINST POLICE MISCONDUCT, THERE WOULD
BE NO IDENTITY OF PROOF, THE LEGAL STANDARDS TO APPLY TO THE FACTS
WOULD NOT BE THE SAME, AND THE NATURE AND OBJECT OF EACH DETERMINATION
WOULD BE DIFFERENT. 

THUS, AN INJUNCTION AGAINST POLICE MISCONDUCT WOULD NOT BE SO
RELATED TO INJUNCTIVE RELIEF AGAINST THE OPERATION OF UNCONSTITUTIONAL
STATE STATUTES AS TO REQUIRE A THREE-JUDGE DISTRICT COURT, EVEN IF
BRASHEAR AND PEREZ DID NOT APPLY TO FORECLOSE OUR CONSIDERATION OF
PARAGRAPH 16 OF THE DISTRICT COURT'S JUDGMENT.  UPON THE ISSUANCE OF
THE DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE FIVE TEXAS STATUTES
THE THREE-JUDGE DISTRICT COURT SHOULD HAVE DISSOLVED ITSELF AND
REFERRED THE CASE TO THE SINGLE DISTRICT JUDGE TO WHOM THE CASE WAS
ORIGINALLY ASSIGNED FOR WHATEVER FURTHER PROCEEDINGS WERE NECESSARY. 
     (B) 

ASSUMING, ARGUENDO, THAT THIS COURT HAS JURISDICTION TO REVIEW THE
INJUNCTION AGAINST POLICE MISCONDUCT, THE PROPER COURSE WOULD BE TO
VACATE AND REMAND THAT PORTION OF THE DISTRICT COURT'S JUDGMENT. 

THE INJUNCTION AGAINST POLICE MISCONDUCT WAS ENTERED BY THE DISTRICT
COURT WITHOUT BENEFIT OF INDEPENDENT ANALYSIS IN THE DISTRICT COURT
FINDINGS OR OPINION.  THE PENULTIMATE PARAGRAPH IN THE OPINION OF THE
DISTRICT COURT IS THE SOLE DISCUSSION PROVIDED REGARDING THE INJUNCTION
THAT WAS LATER ENTERED: 

     "IN ADDITION, PLAINTIFFS ARE ALSO ENTITLED TO A PERMANENT

  INJUNCTION RESTRAINING THE DEFENDANTS NOT ONLY FROM ANY FUTURE

  ACTS ENFORCING THE STATUTES HERE DECLARED VOID, BUT ALSO

  RESTRAINING THEM FROM ANY FUTURE INTERFERENCE WITH THE CIVIL

  RIGHTS OF PLAINTIFFS AND THE CLASS THEY REPRESNET.  HAIRSTON V.

  HUTZLER, 334 F. SUPP. 251 (W.D. PA. 1971)."  347 F. SUPP., AT

634. 

THE DISTRICT COURT'S CATCH-ALL DISCUSSION OF THE FACTS APPEARS TO
HAVE BEEN MADE SOLELY WITH A VIEW OF OVERCOMING THE YOUNGER BARRIER TO
ADJUDICATION OF APPELLEES'  CLAIMS AND NOT TO ESTABLISH ANY LEGAL
RATIONALE FOR THE INJUNCTION AGAINST POLICE MISCONDUCT.  THE
INJUNCTION'S CRUCIAL TERM "ADEQUATE CAUSE" IS DEFINED, IN PART, BY
REFERENCE TO THE DECLARATIONS OF UNCONSTITUTIONALITY OF THE FIVE TEXAS
STATUTES.  EVIDENTLY, THE DISTRICT COURT'S PURPOSE IN INCLUDING THIS
FURTHER INJUNCTIVE RELIEF AGAINST POLICE MISCONDUCT IN ITS JUDGMENT WAS
TO PROTECT THE INTEGRITY AND AID IN TEH ENFORCEMENT OF THE PRIMARY
DECLARATORY AND INJUNCTIVE RELIEF ORDERED BY THE COURT.  IF THE COURT
NOW REMANDS TO THE DISTRICT COURT THAT PART OF THE JUDGMENT WHICH
ENCOMPASSES THE PRIMARY RELIEF, IT WOULD SEEM LOGICAL TO ALSO SEND BACK
FOR RECONSIDERATION THE RELIEF WHICH THE DISTRICT COURT APPARENTLY
PREMISED ON THE EXISTENCE OF THE PRIMARY RELIEF.  SINCE IT IS POSSIBLE
THAT FOLLOWING THE REMAND THE DISTRICT COURT WILL CONCLUDE THAT NO
RELIEF DIRECTED AGAINST THE OPERATION OR ENFORCEMENT OF THE CHALLENGED
STATUTES SHOULD BE ENTERED, THE DISTRICT COURT SHOULD HAVE THE
OPPORTUNITY TO CONSIDER WHETHER THE INJUNCTION AGAINST POLICE
MISCONDUCT WOULD ANY LONGER BE APPROPRIATE. 

        (C) 

FINALLY, I AM SATISFIED THE DISTRICT COURT ABUSED ITS DISCRETION
WHEN IT GRANTED THIS INJUNCTION AGAINST POLICE MISCONDUCT. 

THE INJUNCTION AS ENTERED WOULD ALLOW REVIEW BY THE FEDERAL COURT,
BY WAY OF CONTEMPT PROCEEDINGS, OF CLAIMS WHICH WOULD, AT THE SAME
TIME, BE SUB JUDICE IN ONGOING STATE CRIMINAL PROCEEDINGS.  FOR
EXAMPLE, ASSUME A DEPUTY SHERIFF MADE AN ARREST WITHOUT A WARRANT AND
INCIDENT TO THAT ARREST SEIZED EVIDENCE RELEVANT TO PROOF OF A CRIMINAL
OFFENSE.  THE ARRESTEE CAN SEEK TO SUPPRESS THE EVIDENCE IN HIS STATE
CRIMINAL TRIAL ON THE GROUND THAT THE ARREST WHICH PRECEDED THE SEIZURE
WAS NOT BASED UPON PROBABLE CAUSE.  THE INJUNCTION AGAINST POLICE
MISCONDUCT WOULD PERMIT A TRIAL OF THE SAME CLAIM IN FEDERAL COURT. 
FINAL JUDGMENT, PAR. 16(C).  PEREZ V. LEDESMA, 401 U.S. 82 (1971), AND
SAMUELS V. MACKELL, 401 U.S. 66 (1971), WOULD REQUIRE A YOUNGER SHOWING
BEFORE ANY CONTEMPT CITATION COULD ISSUE IN SUCH A SITUATION.  AN
INJUNCTION WHICH CONTEMPLATES THIS TYPE OF INTERFERENCE IN STATE
CRIMINAL PROCEEDINGS IS INVALID ON ITS FACE.  "A FEDERAL COURT SHOULD
NOT INTERVENE TO ESTABLISH THE BASIS FOR FUTURE INTERVENTION THAT WOULD
BE SO INTRUSIVE AND UNWORKABLE."  O'SHEA V. LITTLETON, 414 U.S., AT
500.  ALTHOUGH O'SHEA DEALT WITH THE PROPRIETY OF AN INJUNCTION WHICH
WOULD PURPORT TO PUNICH AS CONTEMPT ACTIONS OF JUDICIAL OFFICERS TAKEN
DURING THE COURSE OF STATE CRIMNINAL PROCEEDINGS, THE POTENTIAL FOR
DISRUPTION OF STATE CRIMINAL PROCEEDINGS, WHICH WAS A PRINCIPAL CONCERN
IN OUR ANALYSIS IN O'SHEA, IS JUST AS REAL A POSSIBILITY IN THE CASE OF
THE DISTRICT COURT'S INJUNCTION AGAINST POLICE MISCONDUCT.  HOWEVER
ACCOMPLISHED 

"SUCH A MAJOR CONTINUING INTRUSION OF THE EQUITABLE POWER OF THE
FEDERAL COURTS INTO THE DAILY CONDUCT OF STATE CRIMINAL PROCEEDINGS IS
IN SHARP CONFLICT WITH THE PRINCIPLES OF EQUITABLE RESTRAINT WHICH THIS
COURT HAS RECOGNIZED . . . ."  ID., AT 502. 

THE INJUNCTION, IN ITS SUBPARAGRAPH (B), APPEARS TO LEAVE NO ROOM
FOR TEMPORARY RESTRAINT FOR INVESTIGATION OF SUSPICIOUS ACTIVITIES
PREMISED ON LESS THAN PROBABLE CAUSE WHICH THIS COURT HAS HELD TO BE
CONSTITUTIONAL.  TERRY V. OHIO, 392 U.S. 1 (1968). 

THE PROBLEMS CREATED BY THIS INJUNCTION AGAINST POLICE MISCONDUCT
ARE MANIFOLD.  IN THE ENFORCEMENT OF THE INJUNCTION, THE DISTRICT COURT
WILL LIKELY PLACE ITSELF ON A COLLISION COURSE WITH OUR HOLDINGS IN
YOUNGER AND O'SHEA.  THE FACT THAT THE LAW ENFORCEMENT OFFICERS IN
STARR COUNTY AND, INDEED, IN THE WHOLE STATE OF TEXAS WILL BE COMPELLED
TO ENFORCE THE LAW ONLY UNDER THREAT OF CRIMINAL CONTEMPT PROCEEDINGS
IN THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF TEXAS,
ILLISTRATES THE RECKLESS COURSE OF ACTION EMBARKED UPON BY THE DISTRICT
COURT IN ISSUING THIS INJUNCTION.  FEDERAL DISTRICT COURTS WERE NOT
MEANT TO BE SUPER-POLICE CHIEFS, DISCIPLINING INDIVIDUAL LAW
ENFORCEMENT OFFICERS FOR INFRACTIONS OF THE RULES FOR ARRESTS AND
SEARCHES AND SEIZURES.  A DISTRICT COURT WHICH IMPROPERLY INTRUDES UPON
LOCAL POLICE FUNCTIONS "CAN UNDERMINE THE IMPORTANT VALUES OF POLICE
SELF-RESTRAINT AND SELF-RESPECT."  LONG V. DISTRICT OF COLUMBIA, 152
U.S. APP. D.C. 187, 194, 469 F.2D 927, 934 (1972) (WRIGHT, J.,
CONCURRING). 

FOR ALL THE PROBLEMS THAT THIS INJUNCTION IS LIKELY TO CREATE, I
FIND NO REASON TO BELIEVE THAT IT WILL PROVIDE MEANINGFUL RELIEF FOR
APPELLEES.  COMMENT, THE FEDERAL INJUNCTION AS A REMEDY FOR
UNCONSTITUTIONAL POLICE CONDUCT, 78 YALE L.J. 143 (1968).  /20/ 

THE DISTRICT COURT, HERE, HAS ENTERED AN INJUNCTION WHICH IS
INEFFECTIVE IN PROVIDING RELIEF TO APPELLEES AND LIKELY TO PROVIKE
EXTREME RESENTMENT AMONG THOSE THE INJUNCTION RESTRAINS /21/  AND
GENUINE CONCERN AMONG ALL THOSE WHO STILL ADHERE TO THE PROPOSITION
THAT STATE AND FEDERAL RELATIONS SHOULD BE GOVERNED BY NOTIONS OF
COMITY. 

IN ANY EVENT, I BELIEVE THAT THE FACTS WHICH WERE FOUND BY THE
DISTRICT COURT /22/  DO NOT SUPPORT THE GRANTING OF A PROHIBITORY OR
MANDATORY INJUNCTION AGAINST POLICE CONDUCT. 

"(RECOGNITION OF THE NEED FOR A PROPER BALANCE IN THE CONCURRENT
OPERATION OF FEDERAL AND STATE COURTS COUNSELS RESTRAINT AGAINST THE
ISSUANCE OF INJUNCTIONS AGAINST STATE OFFICERS ENGAGED IN THE
ADMINISTRATION OF THE STATE'S CRIMINAL LAWS IN THE ABSENCE OF A SHOWING
OF IRREPARABLE INJURY WHICH IS '"BOTH GREAT AND IMMEDIATE."'  (YOUNGER
V. HARRIS, 401 U.S. 37, 46 (1971).)"  O'SHEA V. LITTLETON, 414 U.S., AT
499. 

INJUNCTIONS AGAINST POLICE CONDUCT SHOULD BE ISSUED, IF AT ALL, IN
ONLY THE MOST EXTREME CASES, SEE, E.G., LANKFORD V. GELSTON, 364 F.2D
197 (CA4 1966), AND THEN ONLY TO THE EXTENT THAT THE RELIEF GRANTED
WOULD NOT "UNNECESSARILY INVOLVE THE COURTS IN POLICE MATTERS AND
DICTATE ACTION IN SITUATIONS IN WHICH DISCRETION AND FLEXIBILITY ARE
MOST IMPORTANT.  IN ORDER FOR A COURT TO GRANT AN INJUNCTION, THERE
SHOULD BE A SHOWING THAT THERE IS A SUBSTANTIAL RISK THAT FUTURE
VIOLATIONS WILL OCCUR."  LONG V. DISTRICT OF COLUMBIA, SUPRA AT 192,
469 F.2D, AT 932.  THE ACTS OF POLICE MISCONDUCT WERE FEW AND
SCATTERED.  THERE WAS NO BASIS FOR THE ISSUANCE OF AN INJUNCTION
AGAINST POLICE MISCONDUCT. 

/1/  FRANCISCO MEDRANO, KATHY BAKER, DAVID LOPEZ, GILBERT PADILLA,
MAGDALENO DIMAS, BENJAMIN RODRIGUEZ. 

/2/  JURISDICTION IS ALLEGED UNDER 28 U.S.C. 1343, 2201, 2202, 2281,
AND 2284, AND 42 U.S.C. 1983 AND 1985. 

/3/  TEX. PENAL CODE, ARTS. 439 (UNLAWFUL ASSEMBLY), 474 (BREACH OF
THE PEACE), AND 482 (ABUSIVE LANGUAGE) (1952), AND TEX. REV. CIV.
STAT., ARTS. 2424D (MASS PICKETING) AND 5154F (SECONDARY PICKETING AND
BOYCOTTING) (1971). 

/4/  THE COURT STATES THAT "THE DISTRICT COURT MUST FIND THAT THE
CLASS WAS PROPERLY REPRESENTED."  ANTE, AT 819 N. 13.  I TAKE THIS TO
MEAN THAT THE NAMED PLAINTIFF MUST BE AN APPROPRIATE REPRESENTATIVE FOR
THE CLASS; THE NAMED PLAINTIFF MUST HAVE SUFFERED THE SAME INJURY AS
THE CLASS PRUPORTEDLY REPRESENTED, AND THAT INJURY MUST BE SUFFIENT TO
ACCORD THE NAMED PLAINTIFF STANDING TO SUE IN HIS OWN RIGHT.  BAILEY V.
PATTERSON, 369 U.S. 31, 31 - 33 (1962); LONG V. DISTRICT OF COLUMBIA,
152 U.S. APP. D.C. 187, 190, 469 F. 2D 924, 930 (1972). 

/5/  SEE SIERRA CLUB V. MORTON, 405 U.S. 727, 739 (1972); NAACP V.
BUTTON, 371 U.S. 415, 428 (1963). 

/6/  THE UNION MAY, OF COURSE, BE DIRECTLY SUBJECT TO CRIMINAL
PROSECUTION.  A UNION PROSECUTED OR THREATENED WITH PROSECUTION QUA
UNION WOULD BE IN THE SAME POSITION AS AN INDIVIDUAL LITIGANT WITH
REGARD TO STANDING AND YOUNGER V. HARRIS, 401 U.S. 37 (1971).  THE
SPECIAL RULES OUTLINED IN THIS OPINION ARE DESIGNED FOR THE MORE COMMON
SITUATION WHERE THE UNION IS NOT INJURED BY BEING PROCEEDED AGAINST
DIRECTLY IN THE OPERATION OF THE CRIMINAL LAWS, BUT, RATHER, IS INJURED
DERIVATIVELY FROM PROSECUTIONS AND THREATS OF PROSECUTIONS OF ITS
MEMBERS. 

/7/  SEE N. 6, SUPRA. 

/8/  THERE IS NO NEED NOW TO ATTEMPT TO FURTHER DEFINE THOSE
SITUATIONS IN WHICH IT WOULD BE PROPER TO IMPUTE THE STATE CRIMINAL
PROSECUTION OF ONE WHO IS NOT A FEDERAL PLAINTIFF TO ONE WHO IS.  THE
ASSOCIATION OF THE STATE CRIMINAL DEFENDANT AND THE FEDERAL PLAINTIFF
NECESSARY FOR IMPUTITION WILL DEPEND UPON FACTS OF JOINT ACTIVITY AND
COMMON INTEREST. 

/9/  THE RELIEF OPEN TO THE DISTRICT COURT ON REMAND IS LIMITED BY
TEH REPEAL OF THREE OF THE STATUTES.  SINCE THE STATUTES NO LONGER
EXIST, THEY CAN HAVE NO CONCEIVABLE FURTHER "CHILLING EFFECT" ON OTHERS
IN THE EXERCISE OF THEIR CONSTITUTIONALLY PROTECTED RIGHTS.  THE
JUSTIFICATION HAS DISAPPEARED, THEN, FOR PERMITTING A LITIGANT TO
CHALLENGE A STATUTE, NOT BECAUSE OF THE INCONSTITUTIONAL APPLICATION OF
THE STATUTE AS TO HIS CONDUCT, BUT RATHER BECAUSE THE STATUTE MIGHT AS
TO OTHER PERSONS BE APPLIED IN AN UNCONSTITUTIONAL MANNER.  BY
REPEALING THE STATUTES, THE STATE HAS "REMOVED) THE SEEMING THREAT OR
DETERRENCE TO CONSTITUTIONALLY PROTECTED EXPRESSION," AND THE DISTRICT
COURT SHOULD NOT APPLY THE "STRONG MEDICINE" OF THE OVERBREADTH
DOCTRINE, WHICH "HAS BEEN EMPLOYED BY THE COURT SPARINGLY AND ONLY AS A
LAST RESORT" TO HOLD STATUTES UNCONSTITUTIONAL ON THEIR FACE. 
BROADRICK V. OKLAHOMA, 413 U.S. 601, 613 (1973). 

/10/  BUT SEE N. 18, INFRA. 

/11/  PROOF THAT OTHER UNION MEMBERS HAVE BEEN SUBJECT TO BAD FAITH
ARRESTS AND PROSECUTIONS UNDER A STATUTE MAY BE RELEVANT TO A CLAIM
THAT A UNION MEMBER FACES INJURY FROM A SUBSTANTIAL LIKELIHOOD OF BEING
ARRESTED AND PROSECUTED IN BAD FAITH IN THE FUTURE UNDER COLOR OF THE
SAME STATUTE.  SEE SUPRA, AT 838. 

/12/  SEE 7.20 OF THE AMENDED COMPLAINT, AND 347 F. SUPP. 605, 615
(SD TEX. 1972). 

/13/  SEE 7.13 OF THE AMENDED COMPLAINT, AND 347 F. SUPP., AT 614. 

/14/  SEE 7.11 OF THE AMENDED COMPLAINT, AND 347 F. SUPP., AT 613. 

/15/  I CAN FIND NOTHING IMPROPER WITH THIS WARNING.  A SECOND
OFFENSE UNDER THE SAME STATUTE IS USUALLY LOOKED ON MORE SERIOUSLY THAN
A FIRST. 

/16/  CAPTAIN ALLEE IS, APPARENTLY, NO LONGER IN ACTIVE SERVICE
HAVING RETIRED FROM THE TEXAS RANGERS.  ACCORDIGN TO APPELLEES HE IS
NOP LONGER A MEMBER OF THE TEXAS DEPARTMENT OF PUBLIC SAFETY. 
DEFENDANTS'  SUPPLEMENTAL DISTRICT COURT BRIEF 6 (FILED OCT. 26,
1971).  IF APPELLEES NO LONGER HAVE AN ACTIVE CONTROVERSY WITH CAPTAIN
ALLEE THE SUIT SHOULD BE DISMISSED AS MOOT AS TO HIM. 

/17/  SEE N. 18, INFRA. 

/18/  THE COURT WOULD RELY ON MILKY WAY V. LEARY, 397 U.S. 98
(1970), FOR THE CONTRARY PROPOSITION: THAT THIS COURT HAS JURISDICTION
TO REVIEW BY WAY OF DIRECT APPEAL ANCILLARY MATTERS DECIDED BY A THREE
JUDGE DISTRICT COURT IN THE EXERCISE OF ITS PRIMARY THREE-JUDGE COURT
REVIEW OF THE CONSTITUTIONAL VALIDITY OF STATE STATUTES.  THE
PRECEDENTIAL VALUE OF OUR SUMMARY AFFIRMANCE IN THIS CASE IS SOMEWHAT
DIMINISHED BY THE FACT THAT THE BRASHEAR PROBLEM WAS NOT RAISED IN ANY
OF APPELLEES' BRIEFS.  IN FACT, ONE OF THE APPELLEES, CONTRARY TO
BRASHEAR, APPEARS TO CONCEDE THAT THIS COURT POSSESSES JURISDICTION TO
REVIEW ANCILLARY MATTERS DECIDED BY A PROPERLY CONVENED THREE-JUDGE
COURT.  MOTION TO DISMISS OR AFFIRM OF APPELLEE FRANK S. HOGAN 9 (NO.
99I, O.T. 1969).  IT SHOULD BE NOTED, FURTHER, THAT PEREZ V. LEDESMA,
401 U.S. 82 (1971), WHICH INCLUDED A FULL ANALYSIS OF ANCILLARY
JURISDICTION ON DIRECT APPEAL FROM A THREE-JUDGE COURT, WAS DECIDED
AFTER MILKY WAY WAS SUMMARILY AFFIRMED. 

ALTHOUGH THE DISTRICT COURT IN PEREZ STATED THAT IT HELD THE STATE
STATUTE TO BE FACIALLY CONSTITUTIONAL, THE DECISION OF THE DISTRICT
COURT THERE THAT THE ARRESTS AND SEIZURES WERE UNCONSTITUTIONAL APPEARS
IN FACT TO HAVE DERIVED FROM A BROAD CONDEMNATION OF OBSCENITY
STATUTES, INCLUDING THE STATE STATUTE DEALT WITH IN THAT CASE, WITHOUT
PROVISIONS INCORPORATED THEREIN PROTECTING AGAINST CRIMINAL LIABILITY
FOR ACTS OCCURRING PRIOR TO AN ADVERSARY JUDICIAL DETERMINATION OF
OBSCENITY.  304 F. SUPP. 662, 667 (ED LA. 1969).  IN EFFECT, THEN, THE
DISTRICT COURT IN PEREZ ACTED BROADLY TO RENDER A NULLITY THE LOUISIANA
STATUTE, SEE ID., AT 673 (RUBIN, J., DISSENTING), AND WE, THEREFORE,
PROPERLY HAD JURISDICTION OVER THE APPEAL AND WE PROPERLY RULED ON THE
QUESTION OF WHETHER THE DISTRICT COURT COULD HAVE INTERFERED WITH STATE
COURT CRIMINAL PROCEEDINGS BY INVALIDATING ARRESTS AND SEIZURES MADE
WITHOUT ANY PRIOR ADVERSARY HEARING.     /19/  THE COURT IN JACOBSEN
REASONED THAT "(TO HOLD TO THE CONTRARY WOULD BE TO PERMIT ONE FEDERAL
DISTRICT JUDGE TO ENJOIN ENFORCEMENT OF A STATE STATUTE ON THE GROUND
OF FEDERAL UNCONSTITUTIONALITY WHENEVER A NON-CONSTITUTIONAL GROUND OF
ATTACK WAS ALSO ALLEGED, AND THIS MIGHT WELL DEFEAT THE PURPOSE OF
2281."  362 U.S., AT 80.  (EMPHASIS IN ORIGINAL.) 

TO HOLD THAT A THREE-JUDGE DISTRICT COURT IS NOT REQUIRED TO HEAR
MATTERS UNRELATED TO THE DETERMINATION OF WHETHER TO ENJOIN THE
ENFORCEMENT OF STATE STATUTES, WOULD POSE NO SIMILAR RISK. 

/20/  THE AUTHOR OF THE COMMENT WROTE:     "FOR TOLERATED
CONSTITUTIONAL VIOLATIONS, A PROHIBITORY INJUNCTION WHICH ONLY ORDERED
HIGH POLICE OFFICIALS TO REFRAIN FROM UNCONSTITUTIONAL CONDUCT WOULD BE
USELESS--THE PROBLEM LIES NOT IN WHAT SUCH OFFICIALS ARE DOING BUT IN
WHAT THEY ARE NOT DOING.  PURELY PROHIBITORY INJUNCTIONS WOULD HAVE TO
BE DIRECTED AGAINST THE SUBORDINATE POLICEMEN WHO WERE ACTING
ILLEGALLY.  BUT COURTS WOULD BE UNABLE TO ENFORCE SUCH INJUNCTIONS
UNLESS THEY WERE WILLING TO TAKE OVER THE TASK OF DISCIPLINING
INDIVIDUAL POLICEMEN.  SUCH AN APPROACH WOULD BE HIGHLY INEFFICIENT
SINCE THE COURT'S ONLY MEANS OF ENFORCING ITS ORDERS DIRECTLY AGAINST
POLICEMEN--A CONTEMPT PROCEEDING--WOULD BE FAR TOO CUMBERSOME AND HEAVY
HANDED TO DEAL EFFECTIVELY WITH LARGE NUMBERS OF ALLEGED VIOLATIONS. 

"IF THE INJUNCTION IS TO HAVE ANY UTILITY AS A REMEDY FOR TOLERATED
POLICE ABUSE, IT MUST REQUIRE AFFIRMATIVE ACTION BY THE OFFICIALS
RESPONSIBLE FOR POLICE CONDUCT."  ID., AT 147.  (EMPHASIS IN ORIGINAL;
FOOTNOTE OMITTED.) 

/21/  THE INJUNCTION MAY RUN AGAINST ALL THE JUDICIAL OFFICERS IN
TEXAS.  A JUSTICE OF THE PEACE IS A NAMED DEFENDANT.  THE INJUNCTION
ENJOINS "DEFENDANTS, THEIR SUCCESSORS, AGENTS AND EMPLOYEES, AND
PERSONS ACTING IN CONCERT WITH THEM."  O'SHEA V. LITTLETON, 414 U.S.
488 (1974), WOULD SEEM PLAINLY TO FORBID ANTICIPATORY INTERFERENCE BY
AN INJUNCTION IN THE OFFICIAL ACTIVITIES OF STATE JUDICIAL OFFICERS. 

/22/  SEE PARTS I AND III, SUPRA. 

LARRY F. YORK, FIRST ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WERE HOHN L. HILL,
ATTORNEY GENERAL, AND JOE B. DIBRELL, LANG A. BAKER, AND GILBERT J.
PENA, ASSISTANT ATTORNEYS GENERAL. 

CHRIS DIXIE ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES. 
..END :










AIR POLLUTION VARIANCE BD. V. WESTERN ALFALFA, 416 U.S. 861 


       AIR POLLUTION VARIANCE BOARD OF COLORADO V. WESTERN ALFALFA

           CORP.

        CERTIORARI TO THE COURT OF APPEALS OF COLORADO

        NO. 73 - 690.  ARGUED APRIL 25, 1974--DECIDED MAY 20, 1974;
(510 P. 2D 907, REVERSED AND REMANDED.) 


    A STATE HEALTH INSPECTOR ENTERED RESPONDENT'S OUTDOOR PREMISES

  IN THE DAYLIGHT WITHOUT ITS KNOWLEDGE OR CONSENT AND WITHOUT A

  WARRANT, TO MAKE AN OPACITY TEST OF SMOKE BEING EMITTED FROM

  RESPONDENT'S CHIMNEYS.  IN A HEARING REQUESTED BY RESPONDENT, THE

  COLORADO AIR POLLUTION VARIANCE BOARD ON TEH BASIS OF SUCH TEST

  FOUND THE EMISSIONS VIOLATED THE STATE ACT, DENIED RESPONDENT A

  VARIANCE, AND ENTERED A CEASE-AND-DESIST ORDER.  THE COUNTY

  DISTRICT COURT SET ASIDE THE BOARD'S DECISION, AND THE COLORADO

COURT OF APPEALS AFFIRMED, HOLDING THAT THE TEST CONSTITUTED AN

  UNREASONABLE SEARCH WITHIN THE MEANING OF THE FOURTH AMENDMENT. 

  HELD: THE FOURTH AMENDMENT, MADE APPLICABLE TO THE STATES BY THE

  FOURTEENTH, DOES NOT EXTEND TO SIGHTS SEEN IN "THE OPEN FIELDS,"

  HESTER V. UNITED STATES, 265 U.S. 57, 59, SUCH AS HERE WHERE THE

  INSPECTOR DID NOT ENTER THE RESPONDENT'S PLANT OR OFFICES BUT HAD

  SIGHTED WHAT ANYONE WHO WAS NEAR THE PLANT COULD SEE IN THE SKY. 

  PP. 864 - 865. 

     DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

AN INSPECTOR OF A DIVISION OF THE COLORADO DEPARTMENT OF HEALTH
ENTERED THE OUTDOOR PREMISES OF RESPONDENT WITHOUT ITS KNOWLEDGE OR
CONSENT.  IT WAS DAYLIGHT AND THE INSPECTOR ENTERED THE YARD TO MAKE A
RINGELMANN TEST /1/  OF PLUMES OF SMOKE BEING EMITTED FROM RESPONDENT'S
CHIMNEYS.  SINCE THAT TIME COLORADO HAS ADOPTED A REQUIREMENT FOR A
SEARCH WARRANT FOR VIOLATIONS OF AIR QUALITY STANDARDS.  /2/  AT THE
TIME OF THE INSTANT INSPECTION THE STATE LAW REQUIRED NO WARRANT AND
NONE WAS SOUGHT.  INDEED, THE INSPECTOR ENTERED NO PART OF RESPONDENT'S
PLANT TO MAKE THE INSPECTION. 

A FEDERAL ACT UNDER THE ADMINISTRATION OF THE ENVIRONMENTAL
PROTECTION AGENCY (EPA) SETS CERTAIN AIR QUALITY STANDARDS, 81 STAT.
485, 42 U.S.C. 1857 ET SEQ. THE STATES HAVE THE PRIMARY RESPONSIBILITY
TO ASSURE THE MAINTENANCE OF AIR QUALITY STANDARDS, 42 U.S.C. 1857C -
2(A).  YET IF THE EPA HAS APPROVED OR PROMULGATED "AN APPLICABLE
IMPLEMENTATION" PLAN, A STATE MAY NOT ADOPT OR ENFORCE A "LESS
STRINGENT" ONE, 42 U.S.C. 1857D - 1.  THERE IS NO CONFLICT BETWEEN A
FEDERAL STANDARD AND STATE ACTION, THE SOLE QUESTION PRESENTED BEING
WHETHER COLORADO HAS VIOLATED FEDERAL CONSTITUTIONAL PROCEDURES IN
MAKING THE INSPECTION IN THE MANNER DESCRIBED. 

RESPONDENT REQUESTED A HEARING BEFORE COLORADO'S AIR POLLUTION
VARIANCE BOARD.  THE BOARD HELD A HEARING AND FOUND THAT RESPONDENT'S
EMISSIONS WERE IN VIOLATION OF THE STATE ACT.  /3/  WHILE THE TEST
CHALLENGED HERE WAS MADE ON JUNE 4, 1969, THE BOARD AFTER NOTING THAT
COLORADO'S HEALTH DEPARTMENT HAD BEEN IN CONFERENCE WITH RESPONDENT "IN
REGARD TO ITS AIR POLLUTION VIOLATIONS SINCE SEPTEMBER, 1967," AFTER
APPROVING THE READINGS MADE BY THE FIELD INSPECTOR ON THE DAY IN
QUESTION, AND AFTER HOLDING THAT TESTS SUBMITTED IN REBUTTAL BY
RESPONDENT WERE NOT ACCEPTABLE, DENIED A VARIANCE AND ENTERED A CEASE
AND-DESIST ORDER.  RESPONDENT SOUGHT REVIEW IN THE DISTRICT COURT FOR
WELD COUNTY WHICH SET ASIDE THE BOARD'S DECISION.  THE COLORADO COURT
OF APPEALS AFFIRMED, 510 P. 2D 907; AND THE SUPREME COURT DENIED
CERTIORARI. 

THE PETITION FOR CERTIORARI WHICH WE GRANTED, 414 U.S. 1156, RAISED
THREE QUESTIONS, PRESENTING IN DIFFERING POSTURES QUESTIONS UNDER THE
FOURTH AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH. 
MAPP V. OHIO, 367 U.S. 643. 

THE MAIN THRUST OF THE OPINION OF THE COURT OF APPEALS IS DIRECTED
AT THE FOURTH AMENDMENT PROBLEM.  IT HELD THAT UNDER CAMARA V.
MUNICIPAL COURT, 387 U.S. 523, AND SEE V. CITY OF SEATTLE, 387 U.S.
541, THE ACT OF CONDUCTING THE TESTS ON THE PREMISES OF RESPONDENT
WITHOUT EITHER A WARRANT OR THE CONSENT OF ANYONE FROM RESPONDENT
CONSTITUTED AN UNREASONABLE SEARCH WITHIN THE MEANING OF THE FOURTH
AMENDMENT.  WE ADHERE TO CAMARA AND SEE BUT WE THINK THEY ARE NOT
APPLICABLE HERE.  THE FIELD INSPECTOR DID NOT ENTER THE PLANT OR
OFFICES.  HE WAS NOT INSPECTING STACKS, /4/  BOILERS, SCRUBBERS, FLUES,
GRATES, OR FURNACES; NOR WAS HIS INSPECTION RELATED TO RESPONDENT'S
FILES OR PAPERS.  HE HAD SIGHTED WHAT ANYONE IN THE CITY WHO WAS NEAR
THE PLANT COULD SEE IN THE SKY--PLUMES OF SMOKE.  THE COURT IN HESTER
V. UNITED STATES, 265 U.S. 57, 59, SPEAKING THROUGH MR. JUSTICE HOLMES,
REFUSED TO EXTEND THE FOURTH AMENDMENT TO SIGHTS SEEN IN "THE OPEN
FIELDS."  THE FIELD INSPECTOR WAS ON RESPONDENT'S PROPERTY BUT WE ARE
NOT ADVISED THAT HE WAS ON PREMISES FROM WHICH THE PUBLIC WAS
EXCLUDED.  UNDER THE NOISE CONTROL ACT OF 1972, 86 STAT. 1234, 42
U.S.C. 4901 ET DEQ.  (1970 ED., SUPP. II), AN INSPECTOR MAY ENTER A
RAILROAD RIGHT-OF-WAY TO DETERMINE WHETHER NOISE STANDARDS ARE BEING
VIOLATED.  THE INVASION OF PRIVACY IN EITHER THAT CASE OR THE PRESENT
ONE, IF IT CAN BE SAID TO EXIST, IS ABSTRACT AND THEORETICAL.  THE EPA
REGULATION FOR CONDUCTING AN OPACITY TEST REQUIRES THE INSPECTOR TO
STAND AT A DISTANCE EQUIVALENT TO APPROXIMATELY TWO STACK HEIGHTS AWAY
BUT NOT MORE THAN A QUARTER OF A MILE FROM THE BASE OF THE STACK WITH
THE SUN TO HIS BACK WITH A VANTAGE POINT PERPENDICULAR TO THE PLUME;
AND HE MUST TAKE AT LEAST 25 READINGS, RECORDING THE DATA AT 15-TO 30
SECOND INTERVALS.  DEPENDING UPON THE LAYOUT OF THE PLANT, THE
INSPECTOR MAY OPERATE WITHIN OR WITHOUT THE PREMISES BUT IN EITHER CASE
HE IS WELL WITHIN THE "OPEN FIELDS" EXCEPTION TO THE FOURTH AMENDMENT
APPROVED IN HESTER. 

THE COURT OF APPEALS WENT ON TO SAY THAT SINCE RESPONDENT WAS NOT
AWARE THAT THE INSPECTOR HAD BEEN ON THE PREMISES UNTIL THE CEASE-AND
DESIST NOTICE, THE HEARING IT RECEIVED "LACKED THE FUNDAMENTAL ELEMENTS
OF DUE PROCESS OF LAW, SINCE THE SECRET NATIRE OF THE INVESTIGATION
FORECLOSED WESTERN FROM PUTTING ON ANY REBUTTAL EVIDENCE."  /5/ 

WHETHER THE COURT REFERRED TO COLORADO "DUE PROCESS"  OR FOURTEENTH
AMENDMENT "DUE PROCESS" IS NOT CLEAR.  /6/  IF IT IS THE FORMER, THE
QUESTION IS A MATTER OF STATE LAW BEYOND OUR PURVIEW.  SINCE WE ARE
UNSURE OF THE GROUNDS OF THAT RULING WE INTIMATE NO OPINION ON THAT
ISSUE.  BUT ON OUR REMAND WE LEAVE OPEN THAT /7/  AND ANY OTHER
QUESTIONS THAT MAY BE LURKING IN THE CASE. 

              REVERSED AND REMANDED. 

/1/  THIS TEST IS PRESCRIBED BY COLO. REV. STAT. ANN. 66 - 29 - 5
(SUPP. 1967).  IT REQUIRES A TRAINED INSPECTOR TO STAND IN A POSITION
WHERE HE HAS AN UNOBSTRUCTED VIEW OF THE SMOKE PLUME, OBSERVE THE
SMOKE, AND RATE IT ACCORDING TO THE OPACITY SCALE OF THE RINGELMANN
CHART.  THE PERSON USING THE CHART MATCHES THE COLOR AND DENSITY OF THE
SMOKE PLUME WITH THE NUMBERED EXAMPLE ON THE CHART.  THE RINGELMANN
TEST IS GENERALLY SANCTIONED FOR USE IN MEASURING AIR POLLUTION.  SEE
CASES COLLECTED IN PORTLAND V. FRY ROOFING CO., 3 ORE.  APP.  352, 355
358, 472 P. 2D 826, 827 - 829. 

/2/  COLO. REV. STAT. ANN. 66 - 29 - 8(2) (D) (SUPP. 1969). 

/3/  THE AIR POLLUTION VARIANCE BOARD, AFTER THE DIVISION OF
ADMINISTRATION, COLORADO DEPARTMENT OF HEALTH, HAD ISSUED A CEASE-AND
DESIST ORDER, RECEIVED A REQUEST FROM RESPONDENT FOR A HEARING WHICH
WAS GRANTED AND HELD SEPTEMBER 11, 1969. 

/4/  EPA STUDIES INDICATE THAT TESTS OF STACKS ARE EXPENSIVE AND MAY
REQUIRE 300 MAN-HOURS OF SKILLED WORK.  39 FED. REG. 9309.  AND SEE
SCHULZE, THE ECONOMICS OF ENVIRONMENTAL MEASUREMENT, 23 J. AIR POLL. 
CONTROL ASSN. 671 (1973).  40 CFR 60.85, METHOD 9. 

/5/  510 P. 2D, AT 909. 

/6/  IN THE DISTRICT COURT'S OPINION IT IS SAID THAT ONE CHALLENGE
TO THE HEARING BEFORE THE VARIANCE BOARD WAS "WHETHER OR NOT DUE
PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW CONTRARY TO THE 14TH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES AND SECTION 25,
ARTICLE 2 OF THE CONSTITUTION OF THE STATE OF COLORADO WAS DENIED" BY
THE BOARD.  APP. 136. 

/7/  SEE CALIFORNIA V. KRIVDA, 409 U.S. 33; DEPARTMENT OF MENTAL
HYGIENE V. KIRCHNER, 380 U.S. 194; MINNESOTA V. NATIONAL TEA CO., 309
U.S. 551. 

WILLIAM TUCKER, ASSISTANT ATTORNEY GENERAL OF COLORADO, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE JOHN P. MOORE,
ATTORNEY GENERAL, JOHN E. BUSH, DEPUTY ATTORNEY GENERAL, AND JOHN
BROWN, SPECIAL ASSISTANT ATTORNEY GENERAL. 

DONALD D. CAWELTI ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS GEORGE D. BLACKWOOD, JR. 

EDMUND W. KITCH ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  ON THE BRIEF WERE SOLICITOR GENERAL BORK,
ASSISTANT ATTORNEY GENERAL JOHNSON, HARRIET S. SHAPIRO, AND EDMUND B.
CLARK.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY WILLIAM J.
BROWN, ATTORNEY GENERAL, AND RICHARD P. FAHEY AND JOHN EUFINGER,
ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF OHIO; AND BY THE
ATTORNEYS GENERAL AND OTHER OFFICIALS FOR 34 STATES AS FOLLOWS:  EVELLE
J. YOUNGER, ATTORNEY GENERAL OF CALIFORNIA, ROBERT H. O'BRIEN,
ASSISTANT ATTORNEY GENERAL, AND NICHOLAS C. YOST, C. FOSTER KNIGHT, AND
DANIEL J. TAAFFE, DEPUTY ATTORNEYS GENERAL; GARY K. NELSON, ATTORNEY
GENERAL OF ARIZONA; JIM GUY TUCKER, ATTORNEY GENERAL OF ARKANSAS;
ROBERT K. KILLIAN, ATTORNEY GENERAL OF CONNECTICUT; ARTHUR K. BOLTON,
ATTORNEY GENERAL OF GEORGIA; GEORGE PAI, ATTORNEY GENERAL OF HAWAII; W.
ANTHONY PARK, ATTORNEY GENERAL OF IDAHO; WILLIAM J. SCOTT, ATTORNEY
GENERAL OF ILLINOIS; RICHARD C. TURNER, ATTORNEY GENERAL OF IOWA, AND
CLIFFORD PETERSON, ASSISTANT ATTORNEY GENERAL; VERN MILLER, ATTORNEY
GENERAL OF KANSAS; ED W. HANCOCK, ATTORNEY GENERAL OF KENTUCKY; WILLIAM
J. GUSTE, JR., ATTORNEY GENERAL OF LOUISIANA; JON A. LUND, ATTORNEY
GENERAL OF MAINE; FRANCIS B. BURCH, ATTORNEY GENERAL OF MARYLAND, AND
MARTIN A. FERRIS III, SPECIAL ASSISTANT ATTORNEY GENERAL; ROBERT H.
QUINN, ATTORNEY GENERAL OF MASSACHUSETTS; FRANK J. KELLY, ATTORNEY
GENERAL OF MICHIGAN; WARREN R. SPANNANS, ATTORNEY GENERAL OF MINNESOTA;
CLARENCE A.H. MEYER, ATTORNEY GENERAL OF NEBRASKA; ROBERT LIST,
ATTORNEY GENERAL OF NEVADA; WARREN B. RUDMAN, ATTORNEY GENERAL OF NEW
HAMPSHIRE, AND DONALD W. STEVER, ASSISTANT ATTORNEY GENERAL; WILLIAM F.
HYLAND, ATTORNEY GENERAL OF NEW JERSEY; DAVID L. NORVELL, ATTORNEY
GENERAL OF NEW MEXICO; LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW
YORK; ROBERT MORGAN, ATTORNEY GENERAL OF NORTH CAROLINA; ALLEN I.
OLSON, ATTORNEY GENERAL OF NORTH DAKOTA; LARRY DERRYBERRY, ATTORNEY
GENERAL OF OKLAHOMA; LEE JOHNSON, ATTORNEY GENERAL OF OREGON; RICHARD
J. ISRAEL, ATTORNEY GENERAL OF RHODE ISLAND; DANIEL R. MCLEOD, ATTORNEY
GENERAL OF SOUTH CAROLINA; KERMIT A. SANDE, ATTORNEY GENERAL OF SOUTH
DAKOTA; DAVID M. PACK, ATTORNEY GENERAL OF TENNESSEE; JOHN L. HILL,
ATTORNEY GENERAL OF TEXAS; CHAUNCEY H. BROWNING, JR., ATTORNEY GENERAL
OF WEST VIRGINIA; ROBERT W. WARREN, ATTORNEY GENERAL OF WISCONSIN, AND
THEODORE L. PRIEBE, ASSISTANT ATTORNEY GENERAL. 
..END :












NLRB V. FOOD STORE EMPLOYEES, 417 U.S. 1 


       NATIONAL LABOR RELATIONS BOARD V. FOOD STORE EMPLOYEES

           UNION, LOCAL 347, AMALGAMATED MEAT CUTTERS & BUTCHER

           WORKMEN OF NORTH AMERICA AFL-CIO

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 73 - 370.  ARGUED MARCH 18 - 19, 1974--DECIDED MAY 20,

       1974; 155 U.S.APP.  D.C. 101, 476 F.2D 546, REVERSED AND

           REMANDED. 


    AFTER FINDING THAT HECK'S INC, HAD ENGAGED IN PERVASIVE UNFAIR

  LABOR PRACTICES, THE NATIONAL LABOR RELATIONS BOARD (NLRB) ISSUED

  A CEASE-AND-DESIST ORDER AGAINST IT, BUT REJECTED THE ARGUMENT OF

  RESPONDENT UNION, THE CHARGING PARTY, FOR ADDITIONAL REMEDIES,

  INCLUDING REIMBURSEMENT OF LITIGATION EXPENSES AND EXCESS

  ORGANIZATIONAL COSTS INCURRED AS A RESULT OF HECK'S ILLEGAL

  CONDUCT.  THE COURT OF APPEALS ENFORCED THE NLRB'S ORDER BUT

  REMANDED THE CASE TO THE NLRB FOR FURTHER CONSIDERATION OF

  ADDITIONAL REMEDIES.  THE NLRB AGAIN REFUSED TO ORDER

  REIMBURSEMENT OF LITIGATION EXPENSES AND EXCESS ORGANIZATIONAL

  COSTS, REASONING THAT ITS "ORDERS MUST BE REMEDIAL, NOT PUNITIVE,

  AND COLLATERAL LOSSES ARE NOT CONSIDERED IN FRAMING A

  REIMBURSEMENT ORDER" AND THAT THE BOARD, NOT THE CHARGING PARTY,

  IS ENTRUSTED WITH PRIMARY RESPONSIBILITY TO PROTECT THE PUBLIC

  INTEREST.  THE COURT OF APPEALS ENFORCED THE NLRB'S AMENDED ORDER

  BUT, CONCLUDING THAT THE NLRB HAD MEANWHILE IN TIIDEE PRODUCTS,

  INC., 194 N.L.R.B. 1234, CHANGED ITS POLICY, ENLARGED THE NLRB'S

  ORDER BY REQUIRING HECK'S TO "(PAY TO THE UNION ANY EXTRAORDINARY

  ORGANIZATIONAL COSTS WHICH THE UNION INCURRED BY REASON OF HECK'S

  POLICY OF RESISTING ORGANIZATIONAL EFFORTS AND REFUSING TO

  BARGAIN" AND TO "(PAY TO THE BOARD AND THE UNION THE COSTS AND

  EXPENSES INCURRED BY THEM" IN CONNECTION WITH THE LITIGATION. 

  SECTIONS 10 (E) AND (F) OF THE NATIONAL LABOR RELATIONS ACT

  AUTHORIZE COURTS OF APPEALS TO "MAKE AND ENTER A DECREE . . .

  MODIFYING AND ENFORCING AS SO MODIFIED" AN NLRB ORDER.  HELD:

  THE COURT OF APPEALS, ALTHOUGH PROPERLY REFUSING TO RESOLVE

  INCONSISTENCIES IN THE BOARD'S DECISIONS IN THIS CASE AND IN

  TIIDEE BY ACCEPTING BOARD COUNSEL'S RATIONALIZATIONS, ERRONEOUSLY

  EXERCISED ITS AUTHORITY UNDER PARAS. 10 (E) AND (F), SINCE IT WAS

  "INCOMPATIBLE WITH THE ORDERLY FUNCTION OF THE PROCESS OF

  JUDICIAL REVIEW" (NLRB V. METROPOLITAN LIFE INS. CO., 380 U.S.

  438, 444) FOR THAT COURT TO ENLARGE THE HECK'S ORDER WITHOUT

  FIRST AFFORDING THE NLRB AN OPPORTUNITY TO EVALUATE THIS CASE IN

  THE LIGHT OF THE POLICY ENUNCIATED IN TIIDEE AND TO DECIDE

  WHETHER THAT POLICY SHOULD BE APPLIED RETROACTIVELY.  PP. 8 -

  11. 

     BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD REFUSED TO INCLUDE, IN A CEASE-AND
DESIST ORDER AGAINST HECK'S INC., A PROVISION SOUGHT BY RESPONDENT
UNION, AS CHARGING PARTY, THAT HECK'S REIMBURSE RESPONDENT'S LITIGATION
EXPENSES AND EXCESS ORGANIZATIONAL COSTS INCURRED AS A RESULT OF HECK'S
UNLAWFUL CONDUCT.  THE BOARD'S STATED REASON WAS THAT "IT WOULD NOT ON
BALANCE EFFECTUATE THE POLICIES OF THE (NATIONAL LABOR RELATIONS) ACT
TO REQUIRE REIMBURSEMENT WITH RESPECT TO SUCH COSTS IN THE
CIRCUMSTANCES HERE."  HECK'S INC., 191 N.L.R.B. 886, 889 (1971). 
RESPONDENT PREVAILED, HOWEVER, IN ENFORCEMENT AND REVIEW PROCEEDINGS IN
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  THAT COURT
ENLARGED THE BOARD'S ORDER BY ADDING PROVISIONS, PARAGRAPHS 2 (E) AND
(F), THAT HECK'S "(PAY TO THE UNION ANY EXTRAORDINARY ORGANIZATIONAL
COSTS WHICH THE UNION INCURRED BY REASON OF HECK'S POLICY OF RESISTING
ORGANIZATIONAL EFFORTS AND REFUSING TO BARGAIN, SUCH COSTS TO BE
DETERMINED AT THE COMPLIANCE STAGE OF THESE PROCEEDINGS," AND "(PAY TO
THE BOARD AND THE UNION THE COSTS AND EXPENSES INCURRED BY THEM IN THE
INVESTIGATION, PREPARATION, PRESENTATION, AND CONDUCT OF THESE CASES
BEFORE THE NATIONAL LABOR RELATIONS BOARD AND THE COURTS, SUCH COSTS TO
BE DETERMINED AT THE COMPLIANCE STAGE OF THESE PROCEEDINGS."  SEE 155
U.S.APP.  D.C. 101, 476 F.2D 546 (1973).  WE GRANTED CERTIORARI TO
CONSIDER WHETHER THE ENLARGEMENT OF THIS ORDER WAS A PROPER EXERCISE OF
THE AUTHORITY OF COURTS OF APPEALS UNDER PARAS. 10(E) AND (F) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED 61 STAT. 146, 29 U.S.C. PARAS.
160 (E) AND (F), TO "MAKE AND ENTER A DECREE . . . MODIFYING, AND
ENFORCING AS SO MODIFIED"  THE ORDER OF THE BOARD, 414 U.S. 1062
(1973).  WE REVERSE. 

HECK'S INC. OPERATES A CHAIN OF DISCOUNT STORES IN THE SOUTHEAST
RESULTED IN SOME 11 PROCEEDINGS BEFORE THE NATIONAL LABOR RELATIONS
BOARD.  /1/  THIS CASE GREW OUT OF ITS EFFORTS TO PREVENT ORGANIZATION
BY RESPONDENT UNION OF HECK'S EMPLOYEES AT ITS STORE IN CLARKSBURG,
WEST VIRGINIA.  THE CASE WAS TWICE BEFORE THE BOARD.  IN ITS FIRST
DECISION, THE BOARD DETERMINED THAT HECK'S VIOLATED PARA. 8 (A)(1) OF
THE ACT, 29 U.S.C. 158 (A)(1), BY THREATENING AND COERCIVELY
INTERROGATING EMPLOYEES DURING RESPONDENT'S ORGANIZATIONAL CAMPAIGN,
AND BY CONDUCTING A NONSECRET POLL TO ASCERTAIN EMPLOYEE SUPPORT FOR
THE UNION.  FURTHER, THE BOARD FOUND THAT HECK'S "FLAGRANT REPETITION"
OF SIMILAR UNFAIR LABOR PRACTICES AT ITS OTHER STORES AND ITS
"EXTENSIVE VIOLATIONS OF THE ACT" IN THE CLARKSBURG STORE JUSTIFIED AN
INFERENCE THAT HECK'S DID NOT ENTERTAIN ANY GOOD-FAITH DOUBT CONCERNING
MAJORITY SUPPORT FOR RESPONDENT UNION WHEN THE COMPANY REFUSED TO
RECOGNIZE AND BARGAIN WITH THE UNION ON THE BASIS OF AUTHORIZATION
CARDS SIGNED BY A MAJORITY OF EMPLOYEES.  ACCORDINGLY, THE BOARD FOUND
THAT HECK'S VIOLATED PARA. 8 (A)(5) AND (1) OF THE ACT, 29 U.S.C.
PARAS. 158 (A)(5) AND (1).  FINALLY, BECAUSE HECK'S EXTENSIVE
VIOLATIONS WERE FOUND TO HAVE MADE A FREE AND FAIR ELECTION IMPOSSIBLE,
AN ORDER DIRECTING HECK'S TO BARGAIN WITH THE UNION WAS ENTERED.  THE
BOARD REJECTED, HOWEVER, THE UNION'S ARGUMENT THAT ADEQUATE RELIEF
REQUIRED CERTAIN ADDITIONAL REMEDIES, INCLUDING REIMBURSEMENT OF
LITIGATION EXPENSES AND EXCESS ORGANIZATIONAL COSTS INCURRED AS A
RESULT OF HECK'S UNLAWFUL BEHAVIOR.  /2/  HECK'S INC., 172 N.L.R.B.
2231 N. 2 (1968). 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ENFORCED
THE BOARD'S ORDER, BUT REMANDED TO THE BOARD FOR FURTHER CONSIDERATION
OF ADDITIONAL REMEDIES INCLUDING REIMBURSEMENT OF LITIGATION EXPENSES
AND EXCESS ORGANIZATIONAL COSTS.  139 U.S.APP.D.C. 383, 433 F.2D 541
(1970).  /3/  ON REMAND, THE BOARD AMENDED ITS ORIGINAL ORDER TO
ENCOMPASS CERTAIN SUPPLEMENTAL REMEDIES, /4/  BUT AGAIN REFUSED TO
ORDER REIMBURSEMENT OF LITIGATION EXPENSES AND EXCESS ORGANIZATIONAL
COSTS.  /5/  191 N.L.R.B. 886.  ALTHOUGH THE BOARD FOUND THAT HECK'S
UNFAIR LABOR PRACTICES WERE "AGGRAVATED AND PERVASIVE" AND THAT ITS
INTRANSIGENCE HAD PROBABLY CAUSED THE UNION TO INCUR GREATER LITIGATION
EXPENSES AND ORGANIZATIONAL COSTS, THE BOARD'S RATIONALE, PREVIOUSLY
MENTIONED, WAS THAT THE PROVISION WOULD NOT EFFECTUATE THE POLICIES OF
THE ACT.  THE BOARD REASONED THAT ITS "ORDERS MUST BE REMEDIAL, NOT
PUNITIVE, AND COLLATERAL LOSSES ARE NOT CONSIDERED IN FRAMING A
REIMBURSEMENT ORDER."  ID., AT 889 (FOOTNOTES OMITTED).  /6/  MOREOVER,
A CHARGING PARTY'S PARTICIPATION IN THE CASE IS, THE BOARD FOUND,
PRIMARILY FOR THE PURPOSE OF PROTECTING ITS PRIVATE INTERESTS, WHEREAS
THE BOARD HAS THE PRIMARY RESPONSIBILITY FOR PROTECTING THE PUBLIC
INTEREST.  THE BOARD THEREFORE CONCLUDED THAT, ALTHOUGH THE PUBLIC
INTEREST MIGHT ALSO ARGUABLY BE SERVED "IN ALLOWING THE CHARGING PARTY
TO RECOVER THE COSTS OF ITS PARTICIPATION IN THIS LITIGATION," THAT
CONSIDERATION DID NOT "OVERRIDE THE GENERAL AND WELL-ESTABLISHED
PRINCIPLE THAT LITIGATION EXPENSES ARE ORDINARILY NOT RECOVERABLE." 
IBID.  (FOOTNOTE OMITTED.) 

PRIOR TO REVIEW OF ITS SUPPLEMENTARY DECISION IN THE COURT OF
APPEALS, THE BOARD ISSUED ITS DECISION IN TIIDEE PRODUCTS, INC., 194
N.L.R.B. 1234 (1972), IN WHICH THE BOARD ORDERED REIMBURSEMENT OF
LITIGATION EXPENSES IN THE CONTEXT OF A FINDING THAT AN EMPLOYER HAD
ENGAGED IN "FRIVOLOUS LITIGATIONS."  /7/  THE BOARD'S OPINION IN TIIDEE
REASONED THAT INDUSTRIAL PEACE COULD BE BEST ACHIEVED IF "SPEEDY ACCESS
TO UNCROWDED BOARD AND COURT DOCKETS (WERE) AVAILABLE" AND THEREFORE
THAT AN ASSESSMENT OF LEGAL FEES WOULD SERVE THE PUBLIC INTEREST BY
"DISCOURAGING) FUTURE FRIVOLOUS LITIGATION,"  ID., AT 1236.  THE BOARD
DID NOT EXPLAIN WHY THOSE CONSIDERATIONS HAD NOT LED IT TO ORDER
SIMILAR RELIEF IN THIS CASE.  THE COURT OF APPEALS THEREFORE CONCLUDED
IN THE PRESENT CASE THAT THE BOARD HAD ABANDONED ITS POLICY AGAINST
AWARD OF LITIGATION EXPENSES AND EXCESS ORGANIZATIONAL COSTS, /8/
STATING: 

"ALTHOUGH THE BOARD IN ITS SUPPLEMENTAL DECISION IN THIS CASE

  HAS NOWHERE CHARACTERIZED THE LITIGATION AS FRIVOLOUS, IT HAS

  USED THE LANGUAGE OF 'CLEARLY AGGRAVATED AND PERVASIVE'

  MISCONDUCT; AND IN ITS ORIGINAL OPINION IT QUESTIONED HECK'S GOOD

  FAITH BECAUSE OF ITS 'FLAGRANT REPETITION OF CONDUCT PREVIOUSLY

  FOUND UNLAWFUL' AT OTHER HECK'S STORES.  IT WOULD APPEAR THAT THE

  BOARD HAS NOW RECOGNIZED THAT EMPLOYERS WHO FOLLOW A PATTERN OF

  RESISTING UNION ORGANIZATION, AND WHO TO THAT END UNDULY BURDEN

  THE PROCESSES OF THE BOARD AND THE COURTS, SHOULD BE OBLIGED, AT

THE VERY LEAST, TO RESPOND IN TERMS OF MAKING GOOD THE LEGAL

  EXPENSES TO WHICH THEY HAVE PUT THE CHARGING PARTIES AND THE

  BOARD.  WE HOLD THAT THE CASE BEFORE US IS AN APPROPRIATE ONE FOR

  ACCORDING SUCH RELIEF."  155 U.S.APP.D.C., AT 106, 476 F.2D, AT

  551. 

THE COURT OF APPEALS ALSO VIEWED TIIDEE AS THE SIGNAL OF A SHIFT IN
THE BOARD'S ATTITUDE TOWARD EXCESS ORGANIZATIONAL COSTS.  IN TIIDEE,
THE BOARD REFUSED TO ORDER REIMBURSEMENT OF EXCESS ORGANIZATIONAL COSTS
BECAUSE "'NO NEXUS BETWEEN (THE EMPLOYER'S) UNLAWFUL CONDUCT . . . HAD
BEEN PROVED.  IBID.  SINCE, IN THE INSTANT CASE, THE BOARD HAD
INDICATED THAT HECK'S VIOLATIONS HAD PROBABLY CAUSED RESPONDENT TO
INCUR EXCESS ORGANIZATIONAL COSTS, A NEXUS WAS PROVED AND ACCORDINGLY
THE COURT HELD THAT RESPONDENT WAS ENTITLED TO AN ORDER DIRECTING
REIMBURSEMENT OF ORGANIZATIONAL COSTS. 

IN THE CIRCUMSTANCES OF THIS CASE, THE COURT OF APPEALS, IN OUR VIEW,
IMPROPERLY EXERCISED ITS AUTHORITY UNDER PARAS. 10 (E) AND (F) TO
MODIFY BOARD ORDERS, AND THE CASE MUST THEREFORE BE RETURNED TO THE
BOARD.  /9/  CONGRESS HAS INVESTED THE BOARD, NOT THE COURTS, WITH
BROAD DISCRETION TO ORDER A VIOLATOR "TO TAKE SUCH AFFIRMATIVE ACTION .
. . AS WILL EFFECTUATE THE POLICIES OF (THE ACT)."  29 U.S.C. 160(C);
SEE E.G., GOLDEN STATE BOTTLING CO. V. NLRB, 414 U.S. 168, 176 (1973). 
THIS CASE DOES NOT PRESENT THE EXCEPTIONAL SITUATION IN WHICH CRYSTAL
CLEAR BOARD ERROR RENDERS A REMAND AN UNNECESSARY FORMALITY.  SEE NLRB
V. EXPRESS PUBLISHING CO., 312 U.S. 426 (1941); COMMUNICATIONS WORKERS
V. NLRB, 362 U.S. 479 (1960).  FOR IT CANNOT BE GAINSAID THAT THE
FINDING HERE THAT HECK'S ASSERTED AT LEAST "DEBATABLE" DEFENSES TO THE
UNFAIR LABOR PRACTICE CHARGES, WHEREAS OBJECTIONS TO THE REPRESENTATION
ELECTION IN TIIDEE WERE "PATENTLY FRIVOLOUS,"  MIGHT HAVE BEEN VIEWED
BY THE BOARD AS PUTTING THE QUESTION OF REMEDY IN A DIFFERENT LIGHT. 
WE CANNOT SAY THAT THE BOARD, IN PERFORMING ITS APPOINTED FUNCTION OF
BALANCING CONFLICTING INTERESTS, COULD NOT REASONABLY DECIDED THAT
WHERE "DEBATABLE" DEFENSES, UNFETTERED BY THE PROSPECT OF BEARING HIS
ADVERSARY'S LITIGATION COSTS, OUTWEIGH THE PUBLIC INTEREST IN UNCROWDED
DOCKETS. 

THERE ARE, HOWEVER, FACIAL INCONSISTENCIES BETWEEN THE BOARD'S
OPINION IN THIS CASE AND THE TIIDEE DECISION, AND THE COURT OF APPEALS
THEREFORE CORRECTLY DECLINED TO RESOLVE THOSE INCONSISTENCIES BY
SUBSTITUTING BOARD COUNSEL'S RATIONALE FOR THAT OF THE BOARD.  155
U.S.APP.D.C., AT 107 N. 8, 476 F.2D, AT 552 N. 8; SEE NLRB V.
METROPOLITAN LIFE INS. CO., 380 U.S. 438, 444 (1965); BURLINGTON TRUCK
LINES V. UNITED STATES, 371 U.S. 371 U.S. 156, 168 - 169 (1962).  THE
INTEGRITY OF THE ADMINISTRATIVE PROCESS DEMANDS NO LESS THAN THAT THE
BOARD, NOT ITS LEGAL REPRESENTATIVE, EXERCISE THE DISCRETIONARY
JUDGMENT WHICH CONGRESS HAS ENTRUSTED TO IT.  BUT SINCE A PLAUSIBLE
RECONCILATION BY THE BOARD OF THE SEEMING INCONSISTENCY WAS REASONABLY
POSSIBLE, IT WAS "INCOMPATIBLE WITH THE ORDERLY FUNCTION OF THE PROCESS
OF JUDICIAL REVIEW," NLRB V. METROPOLITAN LIFE INS. CO., SUPRA, AT 444,
FOR THE COURT OF APPEALS TO ENLARGE THE HECK'S ORDER WITHOUT FIRST
AFFORDING THE BOARD AN OPPORTUNITY TO CLARIFY THE INCONSISTENCIES. 

IT IS A GUIDING PRINCIPLE OF ADMINISTRATIVE LAW, LONG RECOGNIZED BY
THIS COURT, THAT "AN ADMINISTRATIVE DETERMINATION IN WHICH IS IMBEDDED
A LEGAL QUESTION OPEN TO JUDICIAL REVIEW DOES NOT IMPLIEDLY FORECLOSE
THE ADMINISTRATIVE AGENCY, AFTER ITS ERROR HAS BEEN CORRECTED, FROM
ENFORCING THE LEGISLATIVE POLICY COMMITTED TO ITS CHARGE."  FCC V.
POTTSVILLE BROADCASTING CO., 309 U.S. 134, 145 (1940); SEE FLY V.
HEITMEYER, 309 U.S. 146, 148 (1940); FTC V. MORTON SALT CO., 334 U.S.
37, 55 (1948); FPC V. IDAHO POWER CO., 344 U.S. 17, 20 (1952);
KONIGSBERG V. STATE BAR, 366 U.S. 36, 43 - 44 (1961).  THUS, WHEN A
REVIEWING COURT CONCLUDES THAT AN AGENCY INVESTED WITH BROAD DISCRETION
TO FASHION REMEDIES HAS APPARENTLY ABUSED THAT DISCRETION BY OMITTING A
REMEDY JUSTIFIED IN THE COURT'S VIEW BY THE FACTUAL CIRCUMSTANCES,
REMAND TO THE AGENCY FOR RECONSIDERATION, AND NOT ENLARGEMENT OF THE
AGENCY ORDER, IS ORDINARILY THE REVIEWING COURT'S PROPER COURSE. 
APPLICATION OF THAT GENERAL PRINCIPLE IN THIS CASE BEST RESPECTS THE
CONGRESSIONAL SCHEME INVESTING THE BOARD AND NOT THE COURTS WITH BROAD
POWERS TO FASHION REMEDIES THAT WILL EFFECTUATE NATIONAL LABOR POLICY. 
IT ALSO AFFORDS THE BOARD THE OPPORTUNITY, THROUGH ADDITIONAL EVIDENCE
OR FINDINGS, TO REFRAME ITS ORDER BETTER TO EFFECTUATE THAT POLICY. 
SEE FPC V. IDAHO POWER CO., SUPRA, AT 20; FTC V. MORTON SALT CO.,
SUPRA, AT 55.  MOREOVER, IN THIS CASE, IF THE COURT OF APPEALS
CORRECTLY READ TIIDEE AS HAVING SIGNALED A CHANGE OF POLICY IN RESPECT
OF REIMBURSEMENT, A REMAND WAS NECESSARY, BECAUSE THE BOARD SHOULD BE
GIVEN THE FIRST OPPORTUNITY TO DETERMINE WHETHER THE NEW POLICY SHOULD
BE APPLIED RETROACTIVELY.  /10/ 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED INSOFAR AS
PARAGRAPHS 2(E) AND (F) WERE ADDED TO THE BOARD'S ORDER, AND THE CASE
IS REMANDED TO THE COURT OF APPEALS WITH DIRECTION THAT IT BE REMANDED
TO THE BOARD FOR FURTHER PROCEEDINGS. 

              IT IS SO ORDERED. 

/1/  THE MANY PROCEEDINGS ARE CITED IN THE OPINION OF THE COURT OF
APPEALS, 155 U.S.APP.D.C. 101, 102 N. 1, 476 F.2D 546, 547 N. 1. 

/2/  THE BOARD ALSO REJECTED RESPONDENT'S REQUESTS FOR PROVISIONS
DIRECTING THE MAILING OF NOTICES TO EMPLOYEES; EITHER A COMPANY-WIDE
BARGAINING ORDER OR A SHIFTING OF THE BURDEN OF PROOF IN FUTURE CASES
TO REQUIRE HECK'S TO DEMONSTRATE ITS GOOD FAITH IN REJECTING
AUTHORIZATION CARDS; INJUNCTIONS UNDER PARA. 10 (J) OF THE ACT, 29
U.S.C. PARA. 160 (J); INCREASED ACCESS TO EMPLOYEES; AND A "MAKE-WHOLE"
PROVISION DIRECTING COMPENSATION TO EMPLOYEES FOR COLLECTIVE-BARGAINING
BENEFITS LOST AS A RESULT OF THE EMPLOYER'S UNLAWFUL CONDUCT. 

/3/  THE REMAND WAS ORDERED IN LIGHT OF THE COURT OF APPEALS'
INTERVENING DECISION IN INTERNATIONAL UNION OF ELEC., RADIO & MACH.
WORKERS V. NLRB, 138 U.S.APP.D.C. 249, 426 F.2D 1243 (1970), KNOWN AS
THE TIIDEE PRODUCTS CASE, IN WHICH THE COURT HAD REMANDED FOR FURTHER
BOARD CONSIDERATION A UNION'S SUBMISSION THAT SIMILAR SUPPLEMENTARY
REMEDIES WERE NECESSARY WHERE AN EMPLOYER'S REFUSAL TO BARGAIN WAS
FOUND TO BE "A CLEAR AND FLAGRANT VIOLATION OF THE LAW," AND ITS
OBJECTIONS TO A REPRESENTATION ELECTION WERE DETERMINED TO BE "PATENTLY
FRIVOLOUS."  ID., AT 254, 426 F.2D, AT 1248.     /4/  THE BOARD
DIRECTED HECK'S TO MAIL NOTICES OF THE BOARD'S AMENDED ORDER TO THE
HOMES OF ALL EMPLOYEES AT EACH OF HECK'S STORE LOCATIONS; TO PROVIDE
THE UNION WITH REASONABLE ACCESS FOR A ONE-YEAR PERIOD TO BULLETIN
BOARDS AND OTHER PLACES WHERE UNION NOTICES ARE NORMALLY POSTED; AND TO
PROVIDE THE UNION WITH A LIST OF NAMES AND ADDRESSES OF ALL EMPLOYEES
AT ALL LOCATIONS, TO BE KEPT CURRENT FOR ONE YEAR. 

/5/  THE BOARD ALSO REFUSED TO ORDER, AS SOUGHT BY RESPONDENT, THAT
NOTICES OF THE BOARD'S DECISION BE READ TO ASSEMBLED GROUPS OF
EMPLOYEES; THAT A COMPANYWIDE BARGAINING ORDER BE ISSUED; THAT THE
COMPANY BE REQUIRED TO BARGAIN WHENEVER THE UNION OBTAINED AN
AUTHORIZATION CARD MAJORITY AT OTHER LOCATIONS; THAT GREATER ACCESS TO
EMPLOYEES ON COMPANY PROPERTY BE GRANTED; AND THAT A "MAKE-WHOLE"
PROVISION FOR REIMBURSEMENT OF DUES AND FEES, AND COLLECTIVE-BARGAINING
BENEFITS, LOST AS A RESULT OF THE UNLAWFUL REFUSAL TO BARGAIN, BE
ORDERED. 

/6/  IN SUPPORT OF THIS PROPOSITION, THE BOARD RELIED UPON REPUBLIC
STEEL CORP. V. NLRB, 311 U.S. 7, 11 - 12 (1940), AND NLRB V. GULLETT
GIN CO., 340 U.S. 361, 364 (1951). 

/7/  THE BOARD'S DECISION IN TIIDEE WAS ISSUED AFTER SUPPLEMENTARY
PROCEEDINGS FOLLOWING A REMAND FROM THE COURT OF APPEALS.  SEE N. 3,
SUPRA.  IN AN OPINION FILED APRIL 25, 1974, THE COURT OF APPEALS, ON
REVIEW OF THE BOARD'S SUPPLEMENTARY DECISION IN TIIDEE, ENFORCED AS
MODIFIED THE BOARD'S AMENDED ORDER.  INTERNATIONAL UNION OF ELEC.,
RADIO & MACH. WORKERS V. NLRB,--U.S.APP.D.C.--,--F.2D--. 

/8/  THE COURT OF APPEALS MADE CLEAR THAT THE ENLARGEMENT OF THE
BOARD ORDER WAS BASED SQUARELY ON THE BOARD'S CHANGE OF POLICY
PERCEIVED TO HAVE BEEN MADE BY TIIDEE.  THE COURT REFUSED TO DECIDE THE
QUESTION ARGUED BY RESPONDENT UNION THAT, INDEPENDENTLY OF TIIDEE, AN
ORDER OF REIMBURSEMENT SHOULD BE DIRECTED.  THE COURT OF APPEALS SAID: 

"THERE ARE, IT SEEMS TO US, OBVIOUS DIFFICULTIES (IN RELYING UPON
THE SUBSIDIARY ROLE OF THE CHARGING PARTY AS A BASIS FOR DENIAL OF
LITIGATION EXPENSES), CERTAINLY IN THE CASE OF AN EMPLOYER WHO APPEARS
TO LOOK UPON LITIGATION AS A CONVENIENT MEANS OF DELAYING--AND THEREBY
PERHAPS AVOIDING--THE FATAL DAY OF UNION RECOGNITION AND COLLECTIVE
BARGAINING.  WE NEED NOT PURSUE THOSE DIFFICULTIES IN DETAIL, HOWEVER,
FOR THE REASON THAT THE BOARD ITSELF HAS SUBSEQUENTLY DEPARTED FROM THE
RATIONALE UPON WHICH ITS REFUSAL OF LITIGATION EXPENSES IN THIS CASE IS
BASED."  155 U.S. APP. D.C., AT 105, 476 F.2D, AT 550. 

/9/  WE THUS HAVE NO OCCASION AT THIS TIME TO ADDRESS THE QUESTION
WHETHER THE BOARD'S BROAD POWERS UNDER PARA. 10(C), 29 U.S.C. PARA.
160(C), TO FASHION REMEDIES INCLUDE POWER TO ORDER REIMBURSEMENT OF
LITIGATION EXPENSES AND EXCESS ORGANIZATIONAL COSTS. 

/10/  APPELLATE COURTS ORDINARILY APPLY THE LAW IN EFFECT AT THE TIME
OF THE APPELLATE DECISION, SEE BRADLEY V. SCHOOL BOARD, 416 U.S. 696,
711 (1974).  HOWEVER, A COURT REVIEWING AN AGENCY DECISION FOLLOWING AN
INTERVENING CHANGE OF POLICY BY THE AGENCY SHOULD REMAND TO PERMIT THE
AGENCY TO DECIDE IN THE FIRST INSTANCE WHETHER GIVING THE CHANGE
RETROSPECTIVE EFFECT WILL BEST EFFECTUATE THE POLICIES UNDERLYING THE
AGENCY'S GOVERNING ACT. 

IN ITS PRESENT POSTURE THE CASE DOES NOT, OF COURSE, PRESENT THE
QUESTION WHETHER BOARD FAILURE, ON REMAND, TO CLARIFY THE APPARENT
INCONSISTENCY IN ITS DECISIONS WOULD WARRANT REVERSAL ON REVIEW. 
COMPARE BARRETT LINE V. UNITED STATES, 326 U.S. 179 (1945), WITH FCC V.
WOKO, INC., 329 U.S. 223, 227 - 228 (1946).  SEE L. JAFFE, JUDICIAL
CONTROL OF ADMINISTRATIVE ACTION 587 - 588 (1965); SHAPIRO, THE CHOICE
OF RULEMAKING OR ADJUDICATION IN THE DEVELOPMENT OF ADMINISTRATIVE
POLICY, 78 HARV.L.REV.  921, 947 - 950 (1965). 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR PETITIONER. 
ON THE BRIEF WERE SOLICITOR GENERAL BORK, MARK L. EVANS, PETER G. NASH,
JOHN S. IRVING, PATRICK HARDIN, NORTON J. COME, AND LINDA SHER. 

MOZART G. RATNER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE BERNARD RIES, JOSEPH M. JACOBS, AND JUDITH A. LONNQUIST. 
FRED HOLROYD AND JERRY KRONENBERG FILED A BRIEF FOR HECK'S INC.,
INTERVENOR BELOW. 
..END :











WILLIAM E. ARNOLD CO. V. CARPENTERS, 417 U.S. 12 


       WILLIAM E. ARNOLD CO. V. CARPENTERS DISTRICT COUNCIL OF

           JACKSONVILLE AND VICINITY ET AL.

 CERTIORARI TO THE SUPREME COURT OF FLORIDA

        NO. 73 - 466.  ARGUED MARCH 20, 1974--DECIDED MAY 20, 1974;

       279 SO.2D 300, REVERSED AND REMANDED. 


    WHEN RESPONDENT UNIONS CALLED A JURISDICTIONAL-DISPUTE STRIKE

  AGAINST PETITIONER EMPLOYER, PETITIONER BROUGHT THIS SUIT, WHICH

  IS WITHIN THE PURVIEW OF 301 OF THE LABOR MANAGEMENT RELATIONS

  ACT, IN A FLORIDA TRIAL COURT TO ENJOIN RESPONDENTS' BREACH OF A

  NO-STRIKE CLAUSE IN THE COLLECTIVE-BARGAINING AGREEMENT

  CONTAINING A BINDING SETTLEMENT PROCEDURE.  THAT COURT ISSUED A

  TEMPORARY RESTRAINING ORDER AGAINST THE STRIKE, AND ITS ACTION

  WAS UPHELD BY AN INTERMEDIATE APPELLATE COURT.  THE FLORIDA

  SUPREME COURT REVERSED, HOLDING THAT SINCE THE UNIONS'  BREACH

WAS ALSO ARGUABLY AN UNFAIR LABOR PRACTICE UNDER 8(B)(4)(I)(D) OF

  THE NATIONAL LABOR RELATIONS ACT (NLRA) INVOLVING JURISDICTIONAL

  DISPUTES, THE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD

  (NLRB) WAS EXCLUSIVE.  HELD: 

     1.  WHEN THE ACTIVITY IN QUESTION IS ARGUABLY BOTH AN UNFAIR

  LABOR PRACTICE PROHIBITED BY 8 OF THE NLRA AND A BREACH OF A

  COLLECTIVE-BARGAINING AGREEMENT, THE NLRB'S AUTHORITY "IS NOT

  EXCLUSIVE AND DOES NOT DESTROY THE JURISDICTION OF THE COURTS IN

  SUITS UNDER 301."  SMITH V. EVENING NEWS ASSN., 371 U.S. 195,

  197.  PP. 15 - 18. 

   (A) THE PRE-EMPTION DOCTRINE OF SAN DIEGO BUILDING TRADES

  COUNCIL V. GARMON, 359 U.S. 236, IS "NOT RELEVANT" TO ACTIONS

  WITHIN THE PURVIEW OF 301, WHICH MAY BE BROUGHT IN EITHER STATE

  OR FEDERAL COURTS.  P. 16. 

     (B) NLRB POLICY IS TO REFRAIN FROM EXERCISING JURISDICTION AS

TO CONDUCT WHICH IS ARGUABLY BOTH AN UNFAIR LABOR PRACTICE AND A

  CONTRACT VIOLATION WHEN, AS HERE, THE PARTIES HAVE VOLUNTARILY

  ESTABLISHED BY CONTRACT A BINDING SETTLEMENT PROCEDURE.  P. 16. 

     (C) WHEN THE PARTICULAR CONTRACT VIOLATIONS ALSO INVOLVE AN

  ARGUABLE VIOLATION OF 8(B)(4)(I)(D), THE NLRB HAS RECOGNIZED

  ADDED POLICY JUSTIFICATIONS FOR DEFERRING TO THE CONTRACTUAL

  DISPUTE SETTLEMENT MECHANISM, AS INDICATED BY 10(K) OF THE NLRA,

  WHICH BY ITS SPECIAL PROCEDURE FOR NLRB RESOLUTION OF CHARGES

  INVOLVING JURISDICTIONAL DISPUTES "NOT ONLY TOLERATES BUT

  ACTUALLY ENCOURAGES" SETTLEMENTS OF SUCH DISPUTES.  PP. 17 - 18. 

     2.  STATE COURT JURISDICTION OVER COLLECTIVE-BARGAINING

  DISPUTES DOES NOT TURN UPON THE PARTICULAR TYPE OF RELIEF SOUGHT,

  AND THEREFORE IS NOT LIMITED TO CLAIMS FOR DAMAGES, RATHER THAN

  INJUNCTIVE RELIEF.  PP. 18 - 20. 

     BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE FLORIDA SUPREME COURT HELD THAT THE FLORIDA DISTRICT COURT OF
APPEAL ERRED IN REFUSING TO ISSUE A WRIT OF PROHIBITION TO RESTRAIN THE
CIRCUIT COURT FOR DUVAL COUNTY FROM EXERCISING ITS JURISDICTION OVER A
SUIT WITHIN THE PURVIEW OF 301 OF THE LABOR MANAGEMENT RELATIONS ACT
(LMRA).  /1/  THE SUIT SOUGHT TO ENJOIN RESPONDENT UNIONS' BREACH OF A
NO-STRIKE CLAUSE CONTAINED IN A COLLECTIVE-BARGAINING AGREEMENT, WHICH
BREACH ARGUABLY IS ALSO AN UNFAIR LABOR PRACTICE UNDER THE ACT.  THE
STATE SUPREME COURT STATED:  "IT IS UNQUESTIONABLE THAT STATE COURTS DO
HAVE JURISDICTION TO ENFORCE A COLLECTIVE-BARGAINING AGREEMENT AND TO
ENJOIN A STRIKE IN VIOLATION OF A 'NO-STRIKE' CLAUSE CONTAINED THEREIN,
BUT NOT WHEN THE STRIKE IS ALSO ARGUABLY AN UNFAIR LABOR PRACTICE
PROHIBITED BY FEDERAL LAW."  279 SO.2D 300, 302 (1973).  WE GRANTED
CERTIORARI TO DECIDE WHETHER THE HOLDING OF THE FLORIDA SUPREME COURT
WAS CONSISTENT WITH DECISIONS OF THIS COURT, INCLUDING TEAMSTERS LOCAL
V. LUCAS FLOUR CO., 369 U.S. 95 (1962), AND SMITH V. EVENING NEWS
ASSN., 371 U.S. 195 (1962).  414 U.S. 1063 (1973).  WE REVERSE. 

ARTICLE VI OF A COLLECTIVE-BARGAINING AGREEMENT BETWEEN PETITIONER,
WILLIAM E. ARNOLD CO., AND RESPONDENTS, CARPENTERS DISTRICT COUNCIL OF
JACKSONVILLE AND VICINITY AND ITS AFFILIATE, LOCAL 627 (CARPENTERS),
PROVIDES: 

     "THERE SHALL BE NO WORK STOPPAGE, SLOWDOWN, WORK CESSATION OR

  STRIKE BECAUSE OF A JURISDICTIONAL DISPUTE,.  A MUTUALLY

  AGREEABLE SETTLEMENT, OR JOINT DECISION OF THE INTERNATIONAL

  UNIONS INVOLVED, OR DECISION OR INTERPRETATION OF THE NATIONAL

  JOINT BOARD FOR THE SETTLEMENT OF JURISDICTIONAL DISPUTES (OR

  HEARING PANEL) SHALL BE BINDING AND ALL PARTIES AGREE TO ACCEPT

  SUCH DECISION OR INTERPRETATION." 

IN 1971, DURING THE CONSTRUCTION OF THE JACKSONVILLE GENERAL HOSPITAL,
ONE OF ARNOLD'S SUBCONTRACTORS ASSIGNED WORK CLAIMED BY THE CARPENTERS
TO THE WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION, AFL-CIO, LOCAL
59.  THE CARPENTERS STRUCK ARNOLD TO FORCE REASSIGNMENT OF THE WORK TO
THEIR MEMBERS.  ARNOLD THEREUPON BROUGHT THIS SUIT IN THE CIRCUIT COURT
OF DUVAL COUNTY TO ENJOIN THE CARPENTERS FROM VIOLATING THE PROVISIONS
OF ART. VI AND OBTAINED A TEMPORARY RESTRAINING ORDER PROHIBITING THE
STRIKE.  THE CARPENTERS THEN SOUGHT A WRIT OF PROHIBITION FROM A
FLORIDA DISTRICT COURT OF APPEAL, CONTENDING THAT THE CIRCUIT COURT
LACKED JURISDICTION TO ORDER INJUNCTIVE RELIEF BECAUSE THE ALLEGED
BREACH OF THE NO-STRIKE CLAUSE WAS ALSO ARGUABLY AN UNFAIR LABOR
PRACTICE UNDER 8 (B)(4)(I)(D) OF THE NATIONAL LABOR RELATIONS ACT
(NLRA), 29 U.S.C. 158 (B)(4)(I)(D), /2/  AND THEREFORE FELL WITHIN THE
EXCLUSIVE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD (BOARD). 
THE DISTRICT COURT OF APPEAL DENIED THE WRIT OF PROHIBITION AND, AS
PREVIOUSLY MENTIONED, THE SUPREME COURT OF FLORIDA REVERSED. 

WHEN AN ACTIVITY IS EITHER ARGUABLY PROTECTED BY 7 OR ARGUABLY
PROHIBITED BY 8 OF THE NLRA, THE PREEMPTION DOCTRINE DEVELOPED IN SAN
DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959), AND ITS
PROGENY, TEACHES THAT ORDINARILY "THE STATES AS WELL AS THE FEDERAL
COURTS MUST DEFER TO THE EXCLUSIVE COMPETENCE OF THE NATIONAL LABOR
RELATIONS BOARD IF THE DANGER OF STATE INTERFERENCE WITH NATIONAL
POLICY IS TO BE AVERTED."  ID., AT 245.  WHEN, HOWEVER, THE ACTIVITY IN
QUESTION ALSO CONSTITUTES A BREACH OF A COLLECTIVE-BARGAINING
AGREEMENT, THE BOARD'S AUTHORITY "IS NOT EXCLUSIVE AND DOES NOT DESTROY
THE JURISDICTION OF THE COURTS IN SUITS UNDER 301."  SMITH V. EVENING
NEWS ASSN., 371 U.S., AT 197.  THIS EXCEPTION WAS EXPLICITLY REAFFIRMED
IN MOTOR COACH EMPLOYEES V. LOCKRIDGE, 403 U.S. 274, 297 - 298 (1971). 
IT WAS FASHIONED BECAUSE THE HISTORY OF 301 REVEALS THAT "CONGRESS
DELIBERATELY CHOSE TO LEAVE THE ENFORCEMENT OF COLLECTIVE AGREEMENTS
'TO THE USUAL PROCESSES OF THE LAW,'" DOWD BOX CO. V. COURTNEY, 368
U.S. 502, 513 (1962).  THUS, WE HAVE SAID THAT THE GARMON DOCTRINE IS
"NOT RELEVANT" TO ACTIONS WITHIN THE PURVIEW OF 301, TEAMSTERS LOCAL V.
LUCAS FLOUR CO., 369 U.S., AT 101 N. 9, WHICH MAY BE BROUGHT IN EITHER
STATE OR FEDERAL COURTS, DOWD BOX CO. V. COURTNEY, SUPRA, AT 506. 

INDEED, BOARD POLICY IS TO REFRAIN FROM EXERCISING JURISDICTION IN
RESPECT OF DISPUTED CONDUCT ARGUABLY BOTH AN UNFAIR LABOR PRACTICE AND
A CONTRACT VIOLATION WHEN, AS IN THIS CASE, THE PARTIES HAVE
VOLUNTARILY ESTABLISHED BY CONTRACT A BINDING SETTLEMENT PROCEDURE. 
SEE, E.G., THE ASSOCIATED PRESS, 199 N.L.R.B. NO. 168 (1972); EASTMAN
BROADCASTING CO., 199 N.L.R.B. NO. 58 (1972); LABORERS LOCAL 423, 199
N.L.R.B. NO. 48 (1972); COLLYER INSULATED WIRE, 192 N.L.R.B. 837
(1971).  THE BOARD SAID IN COLLYER, "AN INDUSTRIAL RELATIONS DISPUTE
MAY INVOLVE CONDUCT WHICH, AT LEAST ARGUABLY, MAY CONTRAVENE BOTH THE
COLLECTIVE AGREEMENT AND OUR STATUTE.  WHEN THE PARTIES HAVE
CONTRACTUALLY COMMITTED THEMSELVES TO MUTUALLY AGREEABLE PROCEDURES FOR
RESOLVING THEIR DISPUTES DURING THE PERIOD OF THE CONTRACT, WE ARE OF
THE VIEW THAT THOSE PROCEDURES SHOULD BE AFFORDED FULL OPPORTUNITY TO
FUNCTION . . . . WE BELIEVE IT TO BE CONSISTENT WITH THE FUNDAMENTAL
OBJECTIVES OF FEDERAL LAW TO REQUIRE THE PARTIES . . . TO HONOR THEIR
CONTRACTUAL OBLIGATIONS RATHER THAN, BY CASTING (THEIR) DISPUTE IN
STATUTORY TERMS.  TO IGNORE THEIR AGREED-UPON PROCEDURES."  ID., AT 842
- 843.  THE BOARD'S POSITION HARMONIZES WITH CONGRESS'  ARTICULATED
CONCERN THAT, "(FINAL ADJUSTMENT BY A METHOD AGREED UPON BY THE PARTIES
IS . . . THE DESIRABLE METHOD FOR SETTLEMENT OF GRIEVANCE DISPUTES
ARISING OVER THE APPLICATION OR INTERPRETATION OF AN EXISTING
COLLECTIVE-BARGAINING AGREEMENT . . . ."  203 (D) OF THE LMRA, 29
U.S.C. 173 (D). 

FURTHERMORE, WHEN THE PARTICULAR CONTRACT VIOLATION ALSO INVOLVES AN
ARGUABLE VIOLATION OF 8 (B)(4)(I)(D) OF THE NLRA CONCERNING
JURISDICTIONAL DISPUTES, AS IN THIS CASE, THE BOARD HAS RECOGNIZED
ADDED POLICY JUSTIFICATIONS FOR DEFERRING TO THE CONTRACTUAL DISPUTE
SETTLEMENT MECHANISM AGREED UPON BY THE PARTIES.  SECTION 10 (K) OF THE
NLRA, 29 U.S.C. 160 (K), ESTABLISHES A SPECIAL PROCEDURE FOR THE
BOARD'S RESOLUTION OF CHARGES INVOLVING JURISDICTIONAL DISPUTES: 

     "WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN AN

  UNFAIR LABOR PRACTICE WITHIN THE MEANING OF PARAGRAPH (4)(D) OF

  SECTION 158 (B) OF THIS TITLE, THE BOARD IS EMPOWERED AND

  DIRECTED TO HEAR AND DETERMINE THE DISPUTE OUT OF WHICH SUCH

  UNFAIR LABOR PRACTICE SHALL HAVE ARISEN, UNLESS, WITHIN TEN DAYS

  AFTER NOTICE THAT SUCH CHARGE HAS BEEN FILED, THE PARTIES TO SUCH

 DISPUTE SUBMIT TO THE BOARD SATISFACTORY EVIDENCE THAT THEY HAVE

  ADJUSTED, OR AGREED UPON METHODS FOR THE VOLUNTARY ADJUSTMENT OF,

  THE DISPUTE.  UPON COMPLIANCE BY THE PARTIES TO THE DISPUTE WITH

  THE DECISION OF THE BOARD OR UPON SUCH VOLUNTARY ADJUSTMENT OF

  THE DISPUTE, SUCH CHARGE SHALL BE DISMISSED." 

THUS, 10 (K) "NOT ONLY TOLERATES BUT ACTIVELY ENCOURAGES VOLUNTARY
SETTLEMENTS OF WORK ASSIGNMENT CONTROVERSIES BETWEEN UNIONS . . . ." 
CAREY V. WESTINGHOUSE ELECTRIC CORP., 375 U.S. 261, 266 (1964). 
RECOGNIZING CONGRESS' PREFERENCE FOR VOLUNTARY SETTLEMENT OF
JURISDICTIONAL DISPUTES, THE BOARD HAS DECLINED JURISDICTION IN 10 (K)
CASES, COMMENTING THAT, "(IF WE RETAINED JURISDICTION . . . , THE
STATUTORY PURPOSE TO ENCOURAGE THE VOLUNTARY SETTLEMENT OF
JURISDICTIONAL DISPUTES WOULD BE FRUSTRATED IN THAT A PARTY RECEIVING
AN ADVERSE DECISION FROM THE AGREED-UPON TRIBUNAL FOR SETTLING ITS
JURISDICTIONAL DISPUTE WOULD BE ENCOURAGED TO IGNORE SUCH DECISION,
LAPSE INTO NONCOMPLIANCE, AND THEN COME BEFORE THIS BOARD FOR A MORE
FAVORABLE RESOLUTION OF THE DISPUTE."  LABORERS LOCAL 423, 199
N.L.R.B., AT--. 

THE BOARD'S PRACTICE AND POLICY OF DECLINING TO EXERCISE ITS
CONCURRENT JURISDICTION OVER ARGUABLY UNFAIR LABOR PRACTICES WHICH ALSO
VIOLATE PROVISIONS OF COLLECTIVE-BARGAINING AGREEMENTS FOR VOLUNTARY
ADJUSTMENT OF DISPUTES, HIGHLIGHT THE CONGRESSIONAL PURPOSE THAT 301
SUITS IN STATE AND FEDERAL COURTS SHOULD BE THE PRIMARY MEANS FOR
"PROMOTING COLLECTIVE BARGAINING THAT (ENDS) WITH AGREEMENTS NOT TO
STRIKE."  TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 453 (1957). 
THE ASSURANCE OF SWIFT AND EFFECTIVE JUDICIAL RELIEF PROVIDES INCENTIVE
TO ESCHEW ECONOMIC WEAPONS IN FAVOR OF BINDING GRIEVANCE PROCEDURES AND
NO-STRIKE CLAUSES. 

THE CARPENTERS CONTEND, HOWEVER, THAT STATE COURT JURISDICTION OVER
COLLECTIVE-BARGAINING DISPUTES SHOULD BE LIMITED TO CLAIMS FOR DAMAGES,
RATHER THAN INJUNCTIVE RELIEF.  SEE BRIEF FOR RESPONDENTS 7 - 9.  WE
DISAGREE.  TO BE SURE, LUCAS, SMITH, AND LOCKRIDGE, ALL SUPRA, INVOLVED
ONLY DAMAGES CLAIMS, BUT NOTHING IN THE OPINIONS IN THOSE CASES
REMOTELY SUGGESTS THAT STATE COURT JURISDICTION SHOULD TURN UPON THE
PARTICULAR TYPE OF RELIEF SOUGHT.  INDEED, AVCO CORP. V. AERO LODGE
735, 390 U.S. 557, 561 (1968), DISPOSES OF THE ARGUMENT.  WE THERE
SAID, "THE NATURE OF THE RELIEF AVAILABLE AFTER JURISDICTION ATTACHES
IS, OF COURSE, DIFFERENT FROM THE QUESTION WHETHER THERE IS
JURISDICTION TO ADJUDICATE THE CONTROVERSY . . . . ANY ERROR IN
GRANTING OR DESIGNING RELIEF 'DOES NOT GO TO THE JURISDICTION OF THE
COURT.'  SWIFT & CO. V. UNITED STATES, 276 U.S. 311, 331."  MOREOVER,
THE POLICY REASONS AGAINST EXTENSION OF THE GARMON DOCTRINE TO SUITS
WITHIN THE SCOPE OF 301 ARE PARTICULARLY COMPELLING WHEN THE RELIEF
SOUGHT IS SPECIFIC PERFORMANCE OF A NO-STRIKE OBLIGATION, RATHER THAN
DAMAGES.  WHAT WE SAID IN BOYS MARKETS V. CLERKS UNION, 398 U.S. 235,
248 (1970), IS PERTINENT HERE: 

     "(A) NO-STRIKE OBLIGATION, EXPRESS OR IMPLIED, IS THE QUID PRO

  QUO FOR AN UNDERTAKING BY THE EMPLOYER TO SUBMIT GRIEVANCE

  DISPUTES TO THE PROCESS OF ARBITRATION.  SEE TEXTILE WORKERS

  UNION V. LINCOLN MILLS, SUPRA, AT 455.  ANY INCENTIVE FOR

  EMPLOYERS TO ENTER INTO SUCH AN ARRANGEMENT IS NECESSARILY

  DISSIPATED IF THE PRINCIPAL AND MOST EXPEDITIOUS METHOD BY WHICH

  THE NO-STRIKE OBLIGATION CAN BE ENFORCED IS ELIMINATED.  WHILE IT

  IS OF COURSE TRUE, AS RESPONDENT CONTENDS, THAT OTHER AVENUES OF

  REDRESS, SUCH AS AN ACTION FOR DAMAGES, WOULD REMAIN OPEN TO AN

  AGGRIEVED EMPLOYER, AN AWARD OF DAMAGES AFTER A DISPUTE HAS BEEN

  SETTLED IS NO SUBSTITUTE FOR AN IMMEDIATE HALT TO AN ILLEGAL

  STRIKE.  FURTHERMORE, AN ACTION FOR DAMAGES PROSECUTED DURING OR

  AFTER A LABOR DISPUTE WOULD ONLY TEND TO AGGRAVATE INDUSTRIAL

  STRIFE AND DELAY AN EARLY RESOLUTION OF THE DIFFICULTIES BETWEEN

  EMPLOYER AND UNION."  (FOOTNOTES OMITTED.) 

SEE ALSO GATEWAY COAL CO. V. UNITED MINE WORKERS, 414 U.S. 368, 382
(1973). 

THEREFORE, WE REJECT THE ARGUMENT OF CARPENTERS THAT THE
AVAILABILITY OF EFFECTIVE EQUITABLE RELIEF SHOULD BE LIMITED TO THE
FEDERAL COURTS.  WE HAVE PREVIOUSLY EXPRESSED OUR AGREEMENT WITH CHIEF
JUSTICE TRAYNOR OF THE CALIFORNIA SUPREME COURT THAT "WHETHER OR NOT
CONGRESS COULD DEPRIVE STATE COURTS OF THE POWER TO GIVE SUCH
(INJUNCTIVE) REMEDIES WHEN ENFORCING COLLECTIVE-BARGAINING AGREEMENTS,
IT HAS NOT ATTEMPTED TO DO SO EITHER IN THE NORRIS-LA GUARDIA ACT OR
CARPENTERS, 49 CAL.2D 45, 63, 315 P.2D 322, 332 (1957).  SEE BOYS
MARKETS V. CLERKS UNION, SUPRA, AT 247.  RATHER, THE JURISDICTION GIVEN
FEDERAL COURTS UNDER 301 WAS "NOT TO DISPLACE, BUT TO SUPPLEMENT, THE
THOROUGHLY CONSIDERED JURISDICTION OF THE COURTS OF THE VARIOUS STATES
OVER CONTRACTS MADE BY LABOR ORGANIZATIONS," DOWD BOX CO. V. COURTNEY,
368 U.S., AT 511. 

WE DO NOT, OF COURSE, PASS UPON THE PROPRIETY OF THE INJUNCTIVE
RELIEF SOUGHT IN THE PRESENT CASE.  THAT IS A QUESTION TO BE RESOLVED
ON REMAND.  THE JUDGMENT OF THE SUPREME COURT OF FLORIDA IS REVERSED
AND THE CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THIS CHAPTER, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES."  61 STAT. 156, 29 U.S.C. 185(A). 

/2/  SECTION 8 (B)(4) MAKES IT AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION OR ITS AGENTS: 

     "(I) TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL

  EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY

  AFFECTING COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE

  COURSE OF HIS EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT,

  OR OTHERWISE, HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS,

  OR COMMODITIES OR TO PERFORM ANY SERVICES; OR (II) TO THREATEN,

COERCE, OR RESTRAIN ANY PERSON ENGAGED IN COMMERCE OR IN AN

 INDUSTRY AFFECTING COMMERCE, WHERE IN EITHER CASE AN OBJECT

  THEREOF IS--

        .          .          .     . 

     "(D) FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR

  WORK TO EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A

  PARTICULAR TRADE, CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN

  ANOTHER LABOR ORGANIZATION OR IN ANOTHER TRADE, CRAFT, OR CLASS,

  UNLESS SUCH EMPLOYER IS FAILING TO CONFORM TO AN ORDER OR

  CERTIFICATION OF THE BOARD DETERMINING THE BARGAINING

  REPRESENTATIVE FOR EMPLOYEES PERFORMING SUCH WORK . . . ." 

JOHN PAUL JONES ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE DANIEL R. COFFMAN, JR., AND ALLAN P. CLARK.     JOSEPH S.
FARLEY, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL BORK, PETER G. NASH, JOHN S. IRVING, PATRICK HARDIN, AND NORTON
J. COME FOR THE UNITED STATES, AND BY GERARD C. SMETANA, JERRY
KRONENBERG, AND MILTON SMITH FOR THE CHAMBER OF COMMERCE OF THE UNITED
STATES. 
..END :







BLACKLEDGE V. PERRY, 417 U.S. 21 


       BLACKLEDGE, WARDEN, ET AL. V. PERRY

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

     FOURTH CIRCUIT

        NO. 72 - 1660.  ARGUED FEBRUARY 19, 1974--DECIDED MAY 20,

           1974; AFFIRMED. 


    RESPONDENT, A NORTH CAROLINA PRISON INMATE, HAD AN ALTERCATION

  WITH ANOTHER PRISONER, AND WAS CHARGED WITH THE MISDEMEANOR OF

  ASSAULT WITH A DEADLY WEAPON, OF WHICH HE WAS CONVICTED IN THE

  STATE DISTRICT COURT.  WHILE RESPONDENT'S SUBSEQUENT APPEAL WAS

  PENDING IN THE SUPERIOR COURT, WHERE HE HAD THE RIGHT TO A TRIAL

  DE NOVO, THE PROSECUTOR OBTAINED AN INDICTMENT COVERING THE SAME

  CONDUCT FOR THE FELONY OFFENSE OF ASSAULT WITH A DEADLY WEAPON

WITH INTENT TO KILL AND INFLICT SERIOUS BODILY INJURY, TO WHICH

  RESPONDENT PLEADED GUILTY.  THEREAFTER, RESPONDENT APPLIED FOR A

  WRIT OF HABEAS CORPUS IN FEDERAL DISTRICT COURT, CLAIMING, INTER

  ALIA, THAT THE FELONY INDICTMENT DEPRIVED HIM OF DUE PROCESS. 

  THE DISTRICT COURT GRANTED THE WRIT, AND THE COURT OF APPEALS

  AFFIRMED.  HELD: 

 THE INDICTMENT ON THE FELONY CHARGE CONTRAVENED THE DUE PROCESS

  CLAUSE OF THE FOURTEENTH AMENDMENT, SINCE A PERSON CONVICTED OF A

  MISDEAMEANOR IN NORTH CAROLINA IS ENTITLED TO PURSUE HIS RIGHT

  UNDER STATE LAW TO A TRIAL DE NOVO WITHOUT APPREHENSION THAT THE

  STATE WILL RETALIATE BY SUBSTITUTING A MORE SERIOUS CHARGE FOR

  THE ORIGINAL ONE AND THUS SUBJECT HIM TO A SIGNIFICANTLY

  INCREASED POTENTIAL PERIOD OF INCARCERATION.  CF. NORTH CAROLINA

  V. PEARCE, 395 U.S. 711.  PP. 24 - 29. 

     SINCE NORTH CAROLINA, HAVING CHOSEN ORIGINALLY TO PROCEED

  AGAINST RESPONDENT ON THE MISDEMEANOR CHARGE IN THE STATE

  DISTRICT COURT, WAS PRECLUDED BY THE DUE PROCESS CLAUSE FROM EVEN

  PROSECUTING RESPONDENT FOR THE MORE SERIOUS CHARGE IN THE

  SUPERIOR COURT, RESPONDENT'S GUILTY PLEA TO THE FELONY CHARGE DID

  NOT BAR HIM FROM RAISING HIS CONSTITUTIONAL CLAIM IN THE FEDERAL

  HABEAS CORPUS PROCEEDING.  TOLLETT V. HENDERSON, 411 U.S. 258,

  DISTINGUISHED.  PP. 29 - 31. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

BURGER, C. J., AND DOUGLAS, BRENNAN, WHITE, MARSHALL, AND

BLACKMUN, JJ., JOINED.  REHNQUIST, J., FILED A DISSENTING

 OPINION, IN PART II OF WHICH POWELL, J., JOINED, POST, P. 32. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

WHILE SERVING A TERM OF IMPRISONMENT IN A NORTH CAROLINA
PENITENTIARY, THE RESPONDENT PERRY BECAME INVOLVED IN AN ALTERCATION
WITH ANOTHER INMATE.  A WARRANT ISSUED, CHARGING PERRY WITH THE
MISDEMEANOR OF ASSAULT WITH A DEADLY WEAPON, N.C. GEN. STAT. 14 - 33
(B)(1) (1969).  UNDER NORTH CAROLINA LAW, THE DISTRICT COURT DIVISION
OF THE GENERAL COURT OF JUSTICE HAS EXCLUSIVE JURISDICTION FOR THE
TRIAL OF MISDEMEANORS.  N.C. GEN. STAT. 7A - 272.  FOLLOWING A TRIAL
WITHOUT A JURY IN THE DISTRICT COURT OF NORTHAMPTON COUNTY, PERRY WAS
CONVICTED OF THIS MISDEMEANOR AND GIVEN A SIX-MONTH SENTENCE, TO BE
SERVED AFTER COMPLETION OF THE PRISON TERM HE WAS THEN SERVING. 

PERRY THEN FILED A NOTICE OF APPEAL TO THE NORTHAMPTON COUNTY
SUPERIOR COURT.  UNDER NORTH CAROLINA LAW, A PERSON CONVICTED IN THE
DISTRICT COURT HAS A RIGHT TO A TRIAL DE NOVO IN THE SUPERIOR COURT. 
N.C. GEN. STAT. 7A - 290, 15 - 177.1.  THE RIGHT TO TRIAL DE NOVO IS
ABSOLUTE, THERE BEING NO NEED FOR THE APPELLANT TO ALLEGE ERROR IN THE
ORIGINAL PROCEEDING.  WHEN AN APPEAL IS TAKEN, THE STATUTORY SCHEME
PROVIDES THAT THE SLATE IS WIPED CLEAN; THE PRIOR CONVICTION IS
ANNULLED, AND THE PROSECUTION AND THE DEFENSE BEGIN ANEW IN THE
SUPERIOR COURT.  /1/ 

AFTER THE FILING OF THE NOTICE OF APPEAL, BUT PRIOR TO THE
RESPONDENT'S APPEARANCE FOR TRIAL DE NOVO IN THE SUPERIOR COURT, THE
PROSECUTOR OBTAINED AN INDICTMENT FROM A GRAND JURY, CHARGING PERRY
WITH THE FELONY OF ASSAULT WITH A DEADLY WEAPON WITH INTENT TO KILL AND
INFLICT SERIOUS BODILY INJURY, N.C. GEN. STAT. 14 - 32 (A) (1969).  THE
INDICTMENT COVERED THE SAME CONDUCT FOR WHICH PERRY HAD BEEN TRIED AND
CONVICTED IN THE DISTRICT COURT.  PERRY ENTERED A PLEA OF GUILTY TO THE
INDICTMENT IN THE SUPERIOR COURT, AND WAS SENTENCED TO A TERM OF FIVE
TO SEVEN YEARS IN THE PENITENTIARY, TO BE SERVED CONCURRENTLY WITH THE
IDENTICAL PRISON SENTENCE HE WAS THEN SERVING.  /2/

A NUMBER OF MONTHS LATER, THE RESPONDENT FILED AN APPLICATION FOR A
WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NORTH CAROLINA.  HE CLAIMED THAT THE INDICTMENT ON
THE FELONY CHARGE IN THE SUPERIOR COURT CONSTITUTED DOUBLE JEOPARDY AND
ALSO DEPRIVED HIM OF DUE PROCESS OF LAW.  IN AN UNREPORTED OPINION, THE
DISTRICT COURT DISMISSED THE PETITION FOR FAILURE TO EXHAUST AVAILABLE
STATE REMEDIES.  THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT REVERSED, HOLDING THAT RESORT TO THE STATE COURTS WOULD BE
FUTILE, BECAUSE THE SUPREME COURT OF NORTH CAROLINA HAD CONSISTENTLY
REJECTED THE CONSTITUTIONAL CLAIMS PRESENTED BY PERRY IN HIS PETITION. 
453 F.2D 856.  /3/  THE CASE WAS REMANDED TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS. 

ON REMAND, THE DISTRICT COURT GRANTED THE WRIT.  IT HELD THAT THE
BRINGING OF THE FELONY CHARGE AFTER THE FILING OF THE APPEAL VIOLATED
PERRY'S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT,
MADE APPLICABLE TO THE STATES THROUGH THE FOURTEENTH AMENDMENT, BENTON
V. MARYLAND, 395 U.S. 784.  THE DISTRICT COURT FURTHER HELD THAT THE
RESPONDENT HAD NOT, BY HIS GUILTY PLEA IN THE SUPERIOR COURT, WAIVED
HIS RIGHT TO RAISE HIS CONSTITUTIONAL CLAIMS IN THE FEDERAL HABEAS
CORPUS PROCEEDING.  THE COURT OF APPEALS AFFIRMED THE JUDGMENT IN A
BRIEF PER CURIAM OPINION.  WE GRANTED CERTIORARI, 414 U.S. 908, TO
CONSIDER THE SEEMINGLY IMPORTANT ISSUES PRESENTED BY THIS CASE. 

I 

AS IN THE DISTRICT COURT, PERRY DIRECTS TWO INDEPENDENT
CONSTITUTIONAL ATTACKS UPON THE CONDUCT OF THE STATE IN HALING HIM INTO
COURT ON THE FELONY CHARGE AFTER HE TOOK AN APPEAL FROM THE MISDEMEANOR
CONVICTION.  FIRST, HE CONTENDS THAT THE FELONY INDICTMENT IN THE
SUPERIOR COURT PLACED HIM IN DOUBLE JEOPARDY, SINCE HE HAD ALREADY BEEN
CONVICTED ON THE LESSER INCLUDED MISDEMEANOR CHARGE IN THE DISTRICT
COURT.  SECOND, HE URGES THAT THE INDICTMENT ON THE FELONY CHARGE
CONSTITUTED A PENALTY FOR HIS EXERCISING HIS STATUTORY RIGHT TO APPEAL,
AND THUS CONTRAVENED THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  /4/ WE FIND IT NECESSARY TO REACH ONLY THE LATTER CLAIM. 

PERRY'S DUE PROCESS ARGUMENTS ARE DERIVED SUBSTANTIALLY FROM NORTH
CAROLINA V. PEARCE, 395 U.S. 711, AND ITS PROGENY.  IN PEARCE, THE
COURT CONSIDERED THE CONSTITUTIONAL PROBLEMS PRESENTED WHEN, FOLLOWING
A SUCCESSFUL APPEAL AND RECONVICTION, A CRIMINAL DEFENDANT WAS
SUBJECTED TO A GREATER PUNISHMENT THAN THAT IMPOSED AT THE FIRST
TRIAL.  WHILE WE CONCLUDED THAT SUCH A HARSHER SENTENCE WAS NOT
ABSOLUTELY PRECLUDED BY EITHER THE DOUBLE JEOPARDY OR DUE PROCESS
CLAUSE, WE EMPHASIZED THAT "IMPOSITION OF A PENALTY UPON THE DEFENDANT
FOR HAVING SUCCESSFULLY PURSUED A STATUTORY RIGHT OF APPEAL OR
COLLATERAL REMEDY WOULD BE . . . A VIOLATION OF DUE PROCESS OF LAW." 
ID., AT 724.  BECAUSE "VINDICTIVENESS AGAINST A DEFENDANT FOR HAVING
SUCCESSFULLY ATTACKED HIS FIRST CONVICTION MUST PLAY NO PART IN THE
SENTENCE HE RECEIVES AFTER A NEW TRIAL," ID., AT 725, WE HELD THAT AN
INCREASED SENTENCE COULD NOT BE IMPOSED UPON RETRIAL UNLESS THE
SENTENCING JUDGE PLACED CERTAIN SPECIFIED FINDINGS ON THE RECORD. 

IN COLTEN V. KENTUCKY, 407 U.S. 104, THE COURT WAS CALLED UPON TO
DECIDE THE APPLICABILITY OF THE PEARCE HOLDING TO KENTUCKY'S TWO-TIERED
SYSTEM OF CRIMINAL ADJUDICATION.  KENTUCKY, LIKE NORTH CAROLINA, ALLOWS
A MISDEMEANOR DEFENDANT CONVICTED IN AN INFERIOR TRIAL COURT TO SEEK A
TRIAL DE NOVO IN A COURT OF GENERAL JURISDICTION.  /5/  THE APPELLANT
IN COLTEN CLAIMED THAT THE CONSTITUTION PREVENTED THE COURT OF GENERAL
JURISDICTION, AFTER TRIAL DE NOVO, FROM IMPOSING A SENTENCE IN EXCESS
OF THAT IMPOSED IN THE COURT OF ORIGINAL TRIAL.  THIS COURT REJECTED
THE PEARCE ANALOGY.  EMPHASIZING THAT PEARCE WAS DIRECTED AT INSURING
THE ABSENCE OF "VINDICTIVENESS" AGAINST A CRIMINAL DEFENDANT WHO
ATTACKED HIS INITIAL CONVICTION ON APPEAL, THE COURT FOUND SUCH DANGERS
GREATLY MINIMIZED ON THE FACTS PRESENTED IN COLTEN.  IN CONTRAST TO
PEARCE, THE COURT THAT IMPOSED THE INCREASED SENTENCE AFTER RETRIAL IN
COLTEN WAS NOT THE ONE WHOSE ORIGINAL JUDGMENT HAD PROMPTED AN
APPELLATE REVERSAL; THUS, THERE WAS LITTLE POSSIBILITY THAT AN
INCREASED SENTENCE ON TRIAL DE NOVO COULD HAVE BEEN MOTIVATED BY
PERSONAL VINDICTIVENESS ON THE PART OF THE SENTENCING JUDGE.  HENCE,
THE COURT THOUGHT THE PROPHYLACTIC RULE OF PEARCE UNNECESSARY IN THE DE
NOVO TRIAL AND SENTENCING CONTEXT OF COLTEN. 

THE PEARCE DECISION WAS AGAIN INTERPRETED BY THIS COURT LAST TERM IN
CHAFFIN V. STYNCHCOMBE, 412 U.S. 17, IN THE SETTING OF GEORGIA'S SYSTEM
UNDER WHICH SENTENCING RESPONSIBILITY IS ENTRUSTED TO THE JURY.  UPON
RETRIAL FOLLOWING THE REVERSAL OF HIS ORIGINAL CONVICTION, THE
DEFENDANT IN CHAFFIN WAS RECONVICTED AND SENTENCED TO A GREATER TERM
THAN HAD BEEN IMPOSED BY THE INITIAL JURY.  CONCENTRATING AGAIN ON THE
ISSUE OF VINDICTIVENESS, THE COURT FOUND NO VIOLATION OF THE PEARCE
RULE.  IT WAS NOTED THAT THE SECOND JURY WAS COMPLETELY UNAWARE OF THE
ORIGINAL SENTENCE, AND THUS COULD HARDLY HAVE SOUGHT TO "PUNISH"
CHAFFIN FOR HIS SUCCESSFUL APPEAL.  MOREOVER, THE JURY, UNLIKE A JUDGE
WHO HAD BEEN REVERSED ON APPEAL, COULD HARDLY HAVE A STAKE IN THE PRIOR
CONVICTION OR ANY MOTIVATION TO DISCOURAGE CRIMINAL DEFENDANTS FROM
SEEKING APPELLATE REVIEW.  HENCE, IT WAS CONCLUDED THAT THE DANGER OF
VINDICTIVENESS UNDER THE CIRCUMSTANCES OF THE CASE WAS "DE MINIMIS,"
ID., AT 26, AND DID NOT REQUIRE ADOPTION OF THE CONSTITUTIONAL RULE SET
OUT IN PEARCE. 

THE LESSON THAT EMERGES FROM PEARCE, COLTEN, AND CHAFFIN IS THAT THE
DUE PROCESS CLAUSE IS NOT OFFENDED BY ALL POSSIBILITIES OF INCREASED
PUNISHMENT UPON RETRIAL AFTER APPEAL, BUT ONLY BY THOSE THAT POSE A
REALISTIC LIKELIHOOD OF "VINDICTIVENESS."  UNLIKE THE CIRCUMSTANCES
PRESENTED BY THOSE CASES, HOWEVER, IN THE SITUATION HERE THE CENTRAL
FIGURE IS NOT THE JUDGE OR THE JURY, BUT THE PROSECUTOR.  THE QUESTION
IS WHETHER THE OPPORTUNITIES FOR VINDICTIVENESS IN THIS SITUATION ARE
SUCH AS TO IMPEL THE CONCLUSION THAT DUE PROCESS OF LAW REQUIRES A RULE
ANALOGOUS TO THAT OF THE PEARCE CASE.  WE CONCLUDE THAT THE ANSWER MUST
BE IN THE AFFIRMATIVE. 

A PROSECUTOR CLEARLY HAS A CONSIDERABLE STAKE IN DISCOURAGING
CONVICTED MIDSEMEANORS FROM APPEALING AND THUS OBTAINING A TRIAL DE
NOVO IN THE SUPERIOR COURT, SINCE SUCH AN APPEAL WILL CLEARLY REQUIRE
INCREASED EXPENDITURES OF PROSECUTORIAL RESOURCES BEFORE THE
DEFENDANT'S CONVICTION BECOMES FINAL, AND MAY EVEN RESULT IN A FORMERLY
CONVICTED DEFENDANT'S GOING FREE.  AND, IF THE PROSECUTOR HAS THE MEANS
READILY AT HAND TO DISCOURAGE SUCH APPEALS--BY "UPPING THE ANTE"
THROUGH A FELONY INDICTMENT WHENEVER A CONVICTED MISDEMEANANT PURSUES
HIS STATUTORY APPELLATE REMEDY--THE STATE CAN INSURE THAT ONLY THE MOST
HARDY DEFENDANTS WILL BRAVE THE HAZARDS OF A DE NOVO TRIAL. 

THERE IS, OF COURSE, NO EVIDENCE THAT THE PROSECUTOR IN THIS CASE
ACTED IN BAD FAITH OR MALICIOUSLY IN SEEKING A FELONY INDICTMENT
AGAINST PERRY.  THE RATIONALE OF OUR JUDGMENT IN THE PEARCE CASE,
HOWEVER, WAS NOT GROUNDED UPON THE PROPOSITION THAT ACTUAL RETALIATORY
MOTIVATION MUST INEVITABLY EXIST.  RATHER WE EMPHASIZED THAT "SINCE THE
FEAR OF SUCH VINDICTIVENESS MAY UNCONSTITUTIONALLY DETER A DEFENDANT'S
EXERCISE OF THE RIGHT TO APPEAL OR COLLATERALLY ATTACK HIS FIRST
CONVICTION, DUE PROCESS ALSO REQUIRES THAT A DEFENDANT BE FREED OF
APPREHENSION OF SUCH A RETALIATORY MOTIVATION ON THE PART OF THE
SENTENCING JUDGE."  395 U.S., AT 725.  WE THINK IT CLEAR THAT THE SAME
CONSIDERATIONS APPLY HERE.  A PERSON CONVICTED OF AN OFFENSE IS
ENTITLED TO PURSUE HIS STATUTORY RIGHT TO A TRIAL DE NOVO, WITHOUT
APPREHENSION THAT THE STATE WILL RETALIATE BY SUBSTITUTING A MORE
SERIOUS CHARGE FOR THE ORIGINAL ONE, THUS SUBJECTING HIM TO A
SIGNIFICANTLY INCREASED POTENTIAL PERIOD OF INCARCERATION.  /6/  CF.
UNITED STATES V. JACKSON, 390 U.S. 570. 

DUE PROCESS OF LAW REQUIRES THAT SUCH A POTENTIAL FOR VINDICTIVENESS
MUST NOT ENTER INTO NORTH CAROLINA'S TWO-TIERED APPELLATE PROCESS.  WE
HOLD, THEREFORE, THAT IT WAS NOT CONSTITUTIONALLY PERMISSIBLE FOR THE
STATE TO RESPOND TO PERRY'S INVOCATION OF HIS STATUTORY RIGHT TO APPEAL
BY BRINGING A MORE SERIOUS CHARGE AGAINST HIM PRIOR TO THE TRIAL DE
NOVO.  /7/

II 

THE REMAINING QUESTION IS WHETHER, BECAUSE OF HIS GUILTY PLEA TO THE
FELONY CHARGE IN THE SUPERIOR COURT, PERRY IS PRECLUDED FROM RAISING
HIS CONSTITUTIONAL CLAIMS IN THIS FEDERAL HABEAS CORPUS PROCEEDING.  IN
CONTENDING THAT SUCH IS THE CASE, PETITIONERS RELY CHIEFLY ON THIS
COURT'S DECISION LAST TERM IN TOLLETT V. HENDERSON, 411 U.S. 258. 

THE PRECISE ISSUE PRESENTED IN TOLLETT WAS "WHETHER A STATE
PRISONER, PLEADING GUILTY WITH THE ADVICE OF COUNSEL, MAY LATER OBTAIN
RELEASE THROUGH FEDERAL HABEAS CORPUS BY PROVING ONLY THAT THE
INDICTMENT TO WHICH HE PLEADED WAS RETURNED BY AN UNCONSTITUTIONALLY
SELECTED GRAND JURY."  ID., AT 260.  THE COURT ANSWERED THAT QUESTION
IN THE NEGATIVE.  RELYING PRIMARILY ON THE GUILTY-PLEA TRILOGY OF BRADY
V. UNITED STATES, 397 U.S. 742, MCMANN V. RICHARDSON, 397 U.S. 759, AND
PARKER V. NORTH CAROLINA, 397 U.S. 790, THE COURT CHARACTERIZED THE
GUILTY PLEA AS "A BREAK IN THE CHAIN OF EVENTS WHICH HAS PRECEDED IT IN
THE CRIMINAL PROCESS."  411 U.S., AT 267.  ACCORDINGLY, THE COURT HELD
THAT WHEN A CRIMINAL DEFENDANT ENTERS A GUILTY PLEA, "HE MAY NOT
THEREAFTER RAISE INDEPENDENT CLAIMS RELATING TO THE DEPRIVATION OF
CONSTITUTIONAL RIGHTS THAT OCCURRED PRIOR TO THE ENTRY OF THE GUILTY
PLEA."  IBID.  RATHER, A PERSON COMPLAINING OF SUCH "ANTECEDENT
CONSTITUTIONAL VIOLATIONS," ID., AT 266, IS LIMITED IN A FEDERAL HABEAS
CORPUS PROCEEDING TO ATTACKS ON THE VOLUNTARY AND INTELLIGENT NATURE OF
THE GUILTY PLEA, THROUGH PROOF THAT THE ADVICE RECEIVED FROM COUNSEL
WAS NOT "WITHIN THE RANGE OF COMPETENCE DEMANDED OF ATTORNEYS IN
CRIMINAL CASES."  SEE MCMANN SUPRA, AT 771. 

WHILE PETITIONERS' RELIANCE UPON THE TOLLETT OPINION IS
UNDERSTANDABLE, THERE IS A FUNDAMENTAL DISTINCTION BETWEEN THIS CASE
AND THAT ONE.  ALTHOUGH THE UNDERLYING CLAIMS PRESENTED IN TOLLETT AND
THE BRADY TRILOGY WERE OF CONSTITUTIONAL DIMENSIONS, NONE WENT TO THE
VERY POWER OF THE STATE TO BRING THE DEFENDANT INTO COURT TO ANSWER THE
CHARGE BROUGHT AGAINST HIM.  THE DEFENDANTS IN MCMANN V. RICHARDSON,
FOR EXAMPLE, COULD SURELY HAVE BEEN BROUGHT TO TRIAL WITHOUT THE USE OF
THE ALLEGEDLY COERCED CONFESSIONS, AND EVEN A TAINTED INDICTMENT OF THE
SORT ALLEGED IN TOLLETT COULD HAVE BEEN "CURED" THROUGH A NEW
INDICTMENT BY A PROPERLY SELECTED GRAND JURY.  IN THE CASE AT HAND, BY
CONTRAST, THE NATURE OF THE UNDERLYING CONSTITUTIONAL INFIRMITY IS
MARKEDLY DIFFERENT.  HAVING CHOSEN ORIGINALLY TO PROCEED ON THE
MISDEMEANOR CHARGE IN THE DISTRICT COURT, THE STATE OF NORTH CAROLINA
WAS, UNDER THE FACTS OF THIS CASE, SIMPLY PRECLUDED BY THE DUE PROCESS
CLAUSE FROM CALLING UPON THE RESPONDENT TO ANSWER TO THE MORE SERIOUS
CHARGE IN THE SUPERIOR COURT.  UNLIKE THE DEFENDANT IN TOLLETT, PERRY
IS NOT COMPLAINING OF "ANTECEDENT CONSTITUTIONAL VIOLATIONS" OR OF A
"DEPRIVATION OF CONSTITUTIONAL RIGHTS THAT OCCURRED PRIOR TO THE ENTRY
OF THE GUILTY PLEA."  411 U.S., AT 266, 267.  RATHER, THE RIGHT THAT HE
ASSERTS AND THAT WE TODAY ACCEPT IS THE RIGHT NOT TO BE HALED INTO
COURT AT ALL UPON THE FELONY CHARGE.  THE VERY INITIATION OF THE
PROCEEDINGS AGAINST HIM IN THE SUPERIOR COURT THUS OPERATED TO DENY HIM
DUE PROCESS OF LAW.     LAST TERM IN ROBINSON V. NEIL, 409 U.S. 505, IN
EXPLAINING WHY THE DOUBLE JEOPARDY CLAUSE IS DISTINCTIVE, THE COURT
NOTED THAT "ITS PRACTICAL RESULT IS TO PREVENT A TRIAL FROM TAKING
PLACE AT ALL, RATHER THAN TO PRESCRIBE PROCEDURAL RULES THAT GOVERN THE
CONDUCT OF A TRIAL."  ID., AT 509.  WHILE OUR JUDGMENT TODAY IS NOT
BASED UPON THE DOUBLE JEOPARDY CLAUSE, WE THINK THAT THE QUOTED
LANGUAGE APTLY DESCRIBES THE DUE PROCESS RIGHT UPON WHICH OUR JUDGMENT
IS BASED.  THE "PRACTICAL RESULT" DICTATED BY THE DUE PROCESS CLAUSE IN
THIS CASE IS THAT NORTH CAROLINA SIMPLY COULD NOT PERMISSIBLY REQUIRE
PERRY TO ANSWER TO THE FELONY CHARGE.  THAT BEING SO, IT FOLLOWS THAT
HIS GUILTY PLEA DID NOT FORECLOSE HIM FROM ATTACKING HIS CONVICTION IN
THE SUPERIOR COURT PROCEEDINGS THROUGH A FEDERAL WRIT OF HABEAS
CORPUS.  /8/ 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  SEE GENERALLY STATE V. SPENCER, 276 N.C. 535, 173 S.E.2D 765;
STATE V. SPARROW, 276 N.C. 499, 173 S.E.2D 897. 

/2/  THE RESPONDENT'S GUILTY PLEA WAS APPARENTLY PREMISED ON THE
EXPECTATION THAT ANY SENTENCE HE RECEIVED IN THE SUPERIOR COURT WOULD
BE SERVED CONCURRENTLY WITH THE SENTENCE HE WAS THEN SERVING, AS
CONTRASTED WITH THE CONSECUTIVE SENTENCE IMPOSED IN THE DISTRICT
COURT.  THAT EXPECTATION WAS FULFILLED, BUT IT TURNED OUT THAT THE
GUILTY PLEA RESULTED IN INCREASING THE RESPONDENT'S POTENTIAL TERM OF
INCARCERATION.  UNDER APPLICABLE NORTH CAROLINA LAW, THE FIVE- TO SEVEN
- YEAR ASSAULT SENTENCE DID NOT COMMENCE UNTIL THE DATE OF THE GUILTY
PLEA, OCTOBER 29, 1969.  BY THAT TIME, PERRY HAD ALREADY SERVED SOME 17
MONTHS OF THE SENTENCE HE WAS SERVING AT THE TIME OF THE ALLEGED
ASSAULT.  THUS, THE EFFECT OF THE FIVE - TO SEVEN - YEAR CONCURRENT
SENTENCE ON THE ASSAULT CHARGE WAS TO INCREASE HIS POTENTIAL PERIOD OF
CONFINEMENT BY THESE 17 MONTHS, AS OPPOSED TO THE SIX - MONTH INCREASE
ENVISAGED BY THE DISTRICT COURT'S CONSECUTIVE SENTENCE. 

/3/  THE COURT OF APPEALS FURTHER INSTRUCTED THE DISTRICT COURT TO
AWAIT THE RULING OF THIS COURT IN RICE V. NORTH CAROLINA, 434 F.2D 297
(CA4), CERT. GRANTED, 401 U.S. 1008.  RICE INVOLVED A CHALLENGE TO THE
CONSTITUTIONALITY OF AN ENHANCED PENALTY RECEIVED AFTER A CRIMINAL
DEFENDANT HAD SOUGHT A TRIAL DE NOVO UNDER NORTH CAROLINA'S TWO-TIERED
MISDEMEANOR ADJUDICATION SYSTEM.  THIS COURT DID NOT REACH THE MERITS
OF THIS ISSUE IN RICE, INSTEAD VACATING AND REMANDING TO THE COURT OF
APPEALS FOR CONSIDERATION AS TO WHETHER THE CASE HAD BECOME MOOT.  404
U.S. 244. 

SUBSEQUENTLY, IN COLTEN V. KENTUCKY, 407 U.S. 104, WE DEALT WITH THE
MERITS OF THIS ISSUE, AND HELD THAT THE IMPOSITION OF AN INCREASED
SENTENCE ON TRIAL DE NOVO DID NOT VIOLATE EITHER THE DUE PROCESS OR THE
DOUBLE JEOPARDY CLAUSE.  THE DISTRICT COURT IN THE PRESENT CASE HAD THE
BENEFIT OF THE COLTEN DECISION BEFORE ISSUING ITS OPINION GRANTING
HABEAS CORPUS RELIEF. 

/4/  THIS COURT HAS NEVER HELD THAT THE STATES ARE CONSTITUTIONALLY
REQUIRED TO ESTABLISH AVENUES OF APPELLATE REVIEW OF CRIMINAL
CONVICTIONS.  NONETHELESS, "IT IS NOW FUNDAMENTAL THAT, ONCE
ESTABLISHED, THESE AVENUES MUST BE KEPT FREE OF UNREASONED DISTINCTIONS
THAT CAN ONLY IMPEDE OPEN AND EQUAL ACCESS TO THE COURTS."  RINALDI V.
YEAGER, 384 U.S. 305, 310.  SEE ALSO GRIFFIN V. ILLINOIS, 351 U.S. 12;
DOUGLAS V. CALIFORNIA, 372 U.S. 353; LANE V. BROWN, 372 U.S. 477;
DRAPER V. WASHINGTON, 372 U.S. 487; NORTH CAROLINA V. PEARCE, 395 U.S.
711, 724 - 725; CHAFFIN V. STYNCHCOMBE, 412 U.S. 17, 24 N. 11. 

/5/  FOR A MORE EXHAUSTIVE LIST OF STATES EMPLOYING SIMILAR TWO
TIERED PROCEDURES, SEE COLTEN, SUPRA, AT 112 N. 4. 

/6/  MOREOVER, EVEN PUTTING TO ONE SIDE THE POTENTIALITY OF
INCREASED INCARCERATION, CONVICTION OF A "FELONY" OFTEN ENTAILS MORE
SERIOUS COLLATERAL CONSEQUENCES THAN THOSE INCURRED THROUGH A
MISDEMEANOR CONVICTION.  SEE GENERALLY SPECIAL PROJECT, THE COLLATERAL
CONSEQUENCES OF A CRIMINAL CONVICTION, 23 VAND.L.REV.  929, 955 - 960;
NOTE, CIVIL DISABILITIES OF FELONS, 53 VA.L.REV.  403, 406 - 408.  CF.
O'BRIEN V. SKINNER, 414 U.S. 524 (INVOLVING NEW YORK LAW UNDER WHICH
CONVICTED MISDEMEANANTS RETAIN THE RIGHT TO VOTE). 

/7/  THIS WOULD CLEARLY BE A DIFFERENT CASE IF THE STATE HAD SHOWN
THAT IT WAS IMPOSSIBLE TO PROCEED ON THE MORE SERIOUS CHARGE AT THE
OUTSET, AS IN DIAZ V. UNITED STATES, 223 U.S. 442.  IN THAT CASE THE
DEFENDANT WAS ORIGINALLY TRIED AND CONVICTED FOR ASSAULT AND BATTERY. 
SUBSEQUENT TO THE ORIGINAL TRIAL, THE ASSAULT VICTIM DIED, AND THE
DEFENDANT WAS THEN TRIED AND CONVICTED FOR HOMICIDE.  OBVIOUSLY, IT
WOULD NOT HAVE BEEN POSSIBLE FOR THE AUTHORITIES IN DIAZ TO HAVE
ORIGINALLY PROCEEDED AGAINST THE DEFENDANT ON THE MORE SERIOUS CHARGE,
SINCE THE CRIME OF HOMICIDE WAS NOT COMPLETE UNTIL AFTER THE VICTIM'S
DEATH. 

/8/  CONTRARY TO THE DISSENTING OPINION, OUR DECISION TODAY DOES NOT
"ASSURE THAT NO PENALTY WHATEVER WILL BE IMPOSED" ON RESPONDENT.  POST,
AT 39.  WHILE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BARS
TRIAL OF PERRY ON THE FELONY ASSAULT CHARGES IN THE SUPERIOR COURT,
NORTH CAROLINA IS WHOLLY FREE TO CONDUCT A TRIAL DE NOVO IN THE
SUPERIOR COURT ON THE ORIGINAL MISDEMEANOR ASSAULT CHARGE.  INDEED,
THIS IS PRECISELY THE COURSE THAT PERRY HAS INVITED, BY FILING AN
APPEAL FROM THE ORIGINAL JUDGMENT OF THE DISTRICT COURT. 

THE DISSENTING OPINION ALSO SEEMS TO MISCONCEIVE THE NATURE OF THE
DUE PROCESS RIGHT AT STAKE HERE.  IF THIS WERE A CASE INVOLVING SIMPLY
AN INCREASED SENTENCE VIOLATIVE OF THE PEARCE RULE, A REMAND FOR
RESENTENCING WOULD BE IN ORDER.  OUR HOLDING TODAY, HOWEVER, IS NOT
THAT PERRY WAS DENIED DUE PROCESS BY THE LENGTH OF THE SENTENCE IMPOSED
BY THE SUPERIOR COURT, BUT RATHER BY THE VERY INSTITUTION OF THE FELONY
INDICTMENT AGAINST HIM.  WHILE WE REACH THIS CONCLUSION IN PARTIAL
RELIANCE ON THE ANALOGY OF PEARCE AND ITS PROGENY, THE DUE PROCESS
VIOLATION HERE IS NOT THE SAME AS WAS INVOLVED IN THOSE CASES, AND
CANNOT BE REMEDIED SOLELY THROUGH A RESENTENCING PROCEDURE IN THE
SUPERIOR COURT.  CF. N. 6, SUPRA. 

MR. JUSTICE REHNQUIST, DISSENTING. 

I WOULD FIND IT MORE DIFFICULT THAN THE COURT APPARENTLY DOES IN
PART I OF ITS OPINION TO CONCLUDE THAT THE VERY BRINGING OF MORE
SERIOUS CHARGES AGAINST RESPONDENT FOLLOWING HIS REQUEST FOR A TRIAL DE
NOVO VIOLATED DUE PROCESS AS DEFINED IN NORTH CAROLINA V. PEARCE, 395
U.S. 711 (1969).  STILL MORE IMPORTANTLY, I BELIEVE THE COURT'S
CONCLUSION THAT RESPONDENT MAY ASSERT THE COURT'S NEWFOUND PEARCE CLAIM
IN THIS FEDERAL HABEAS ACTION, DESPITE HIS PLEA OF GUILTY TO THE
CHARGES BROUGHT AFTER HIS INVOCATION OF HIS STATUTORY RIGHT TO A TRIAL
DE NOVO, MARKS AN UNWARRANTED DEPARTURE FROM THE PRINCIPLES WE HAVE
RECENTLY ENUNCIATED IN TOLLETT V. HENDERSON, 411 U.S. 258 (1973), AND
THE BRADY TRILOGY, BRADY V. UNITED STATES, 397 U.S. 742 (1970), MCMANN
V. RICHARDSON, 397 U.S. 759 (1970), AND PARKER V. NORTH CAROLINA, 397
U.S. 790 (1970). 

        I 

AS THE COURT NOTES, IN ADDITION TO HIS CLAIM BASED ON PEARCE,
RESPONDENT CONTENDS THAT HIS FELONY INDICTMENT IN THE SUPERIOR COURT
VIOLATED HIS RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT, MADE APPLICABLE TO THE STATES THROUGH THE FOURTEENTH
AMENDMENT, BENTON V. MARYLAND, 395 U.S. 784 (1969).  PRESUMABLY BECAUSE
WE HAVE EARLIER HELD THAT "THE JEOPARDY INCIDENT TO" A TRIAL DOES "NOT
EXTEND TO AN OFFENSE BEYOND (THE TRIAL COURT'S) JURISDICTION," DIAZ V.
UNITED STATES, 223 U.S. 442, 449 (1912), THE COURT RESTS ITS DECISION
INSTEAD ON THE FOURTEENTH AMENDMENT DUE PROCESS DOCTRINE OF PEARCE.  IN
SO DOING, I THINK THE COURT TOO READILY EQUATES THE ROLE OF THE
PROSECUTOR, WHO IS A NATURAL ADVERSARY OF THE DEFENDANT AND WHO, WE
OBSERVED IN CHAFFIN V. STYNCHCOMBE, 412 U.S. 17, 27 N. 13 (1973),
"OFTEN REQUESTS) MORE THAN (HE) CAN REASONABLY EXPECT TO GET," WITH
THAT OF THE SENTENCING JUDGE IN PEARCE.  I ALSO THINK THE COURT PASSES
TOO LIGHTLY OVER THE REASONING OF COLTEN V. KENTUCKY, 407 U.S. 104
(1972), IN WHICH WE HELD THAT IMPOSITION OF THE PROPHYLACTIC RULE OF
PEARCE WAS NOT NECESSARY IN KENTUCKY'S TWO-TIER SYSTEM FOR DE NOVO
APPEALS FROM JUSTICE COURT CONVICTIONS, EVEN THOUGH THE JUDGE AT
RETRIAL MIGHT IMPOSE A MORE SEVERE SENTENCE THAN HAD BEEN IMPOSED BY
THE JUSTICE COURT AFTER THE ORIGINAL TRIAL. 

THE CONCURRING OPINION IN PEARCE, 395 U.S. 711, 726, TOOK THE
POSITION THAT THE IMPOSITION OF A PENALTY AFTER RETRIAL WHICH EXCEEDED
THE PENALTY IMPOSED AFTER THE FIRST TRIAL VIOLATED THE GUARANTEE
AGAINST DOUBLE JEOPARDY.  BUT THE OPINION OF THE COURT, RELYING ON
CASES SUCH AS UNITED STATES V. BALL, 163 U.S. 662 (1896), AND STROUD V.
UNITED STATES, 251 U.S. 15 (1919), SPECIFICALLY REJECTED SUCH AN
APPROACH TO THE CASE.  THE COURT WENT ON TO HOLD "THAT NEITHER THE
DOUBLE JEOPARDY PROVISION NOR THE EQUAL PROTECTION CLAUSE IMPOSES AN
ABSOLUTE BAR TO A MORE SEVERE SENTENCE UPON RECONVICTION."  395 U.S.,
AT 723.  THE COURT CONCLUDED BY HOLDING THAT DUE PROCESS "REQUIRES THAT
VINDICTIVENESS AGAINST A DEFENDANT FOR HAVING SUCCESSFULLY ATTACKED HIS
FIRST CONVICTION MUST PLAY NO PART IN THE SENTENCE HE RECEIVES AFTER A
NEW TRIAL.  AND SINCE THE FEAR OF SUCH VINDICTIVENESS MAY
UNCONSTITUTIONALLY DETER A DEFENDANT'S EXERCISE OF THE RIGHT TO APPEAL
OR COLLATERALLY ATTACK HIS FIRST CONVICTION, DUE PROCESS ALSO REQUIRES
THAT A DEFENDANT BE FREED OF APPREHENSION OF SUCH A RETALIATORY
MOTIVATION ON THE PART OF THE SENTENCING JUDGE."  ID., AT 725.  TO MAKE
CERTAIN THAT THOSE REQUIREMENTS OF DUE PROCESS WERE MET, THE COURT LAID
DOWN THE RULE THAT "WHENEVER A JUDGE IMPOSES A MORE SEVERE SENTENCE
UPON A DEFENDANT AFTER A NEW TRIAL, THE REASONS FOR HIS DOING SO MUST
AFFIRMATIVELY APPEAR."  ID., AT 726.  THUS THE AVOWED PURPOSE OF THE
REMEDY FASHIONED IN PEARCE WAS TO PREVENT JUDICIAL VINDICTIVENESS FROM
RESULTING IN LONGER SENTENCES AFTER A RETRIAL FOLLOWING SUCCESSFUL
APPEAL. 

SINCE IN THEORY IF NOT IN PRACTICE THE SECOND SENTENCE IN THE PEARCE
SITUATION MIGHT BE EXPECTED TO BE THE SAME AS THE FIRST UNLESS
INFLUENCED BY VINDICTIVENESS OR BY INTERVENING CONDUCT OF THE
DEFENDANT, IN THEORY AT LEAST THE REMEDY MANDATED THERE REACHED NO
FURTHER THAN THE IDENTIFIED WRONG.  THE SAME CANNOT BE SAID HERE.  FOR
WHILE INDICTMENT ON MORE SERIOUS CHARGES AFTER A SUCCESSFUL APPEAL
WOULD PRESENT A PROBLEM CLOSELY ANALOGOUS TO THAT IN PEARCE IN THIS
RESPECT, THE BRINGING OF MORE SERIOUS CHARGES AFTER A DEFENDANT'S
EXERCISE OF HIS ABSOLUTE RIGHT TO A TRIAL DE NOVO IN NORTH CAROLINA'S
TWO-TIER SYSTEM DOES NOT.  THE PROSECUTOR HERE ELECTED TO PROCEED
INITIALLY IN THE STATE DISTRICT COURT WHERE FELONY CHARGES COULD NOT BE
PROSECUTED, FOR REASONS WHICH MAY WELL HAVE BEEN UNRELATED TO WHETHER
HE BELIEVED RESPONDENT WAS GUILTY OF AND COULD BE CONVICTED OF THE
FELONY WITH WHICH HE WAS LATER CHARGED.  BOTH PROSECUTOR AND DEFENDANT
STAND TO BENEFIT FROM AN INITIAL PROSECUTION IN THE DISTRICT COURT, THE
PROSECUTOR AT LEAST FROM ITS LESS BURDENSOME PROCEDURES AND THE
DEFENDANT FROM THE OPPORTUNITY FOR AN INITIAL ACQUITTAL AND THE LIMITED
PENALTIES.  WITH THE COUNTERVAILING REASONS FOR PROCEEDING ONLY ON THE
MISDEMEANOR CHARGE IN THE DISTRICT COURT NO LONGER APPLICABLE ONCE THE
DEFENDANT HAS INVOKED HIS STATUTORY RIGHT TO A TRIAL DE NOVO, A
PROSECUTOR NEED NOT BE VINDICTIVE TO SEEK TO INDICT AND CONVICT A
DEFENDANT OF THE MORE SERIOUS OF THE TWO CRIMES OF WHICH HE BELIEVES
HIM GUILTY.  THUS EVEN IF ONE ACCEPTS THE COURT'S EQUATION OF
PROSECUTORIAL VINDICTIVENESS WITH JUDICIAL VINDICTIVENESS, HERE, UNLIKE
PEARCE, THE COURT'S REMEDY REACHES FAR BEYOND THE WRONG IT IDENTIFIES. 

INDEED, IT IS NOT A LITTLE PUZZLING THAT THE COURT'S REMEDY IS THE
SAME THAT WOULD FOLLOW UPON A CONCLUSION THAT THE BRINGING OF THE NEW
CHARGES VIOLATED RESPONDENT'S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE. 
AND THE COURT'S CONCLUSION THAT "(THE VERY INITIATION OF THE
PROCEEDINGS AGAINST (RESPONDENT) IN THE SUPERIOR COURT THUS OPERATED TO
DENY HIM DUE PROCESS OF LAW" SURELY SOUNDS IN THE LANGUAGE OF DOUBLE
JEOPARDY, HOWEVER IT MAY BE DRESSED IN DUE PROCESS GARB. 

        II 

IF THE COURT IS CORRECT IN STATING THE CONSEQUENCES OF UPHOLDING
RESPONDENT'S CONSTITUTIONAL CLAIM HERE, AND INDEED THE STATE LACKED THE
VERY POWER TO BRING HIM TO TRIAL, I BELIEVE THIS CASE IS GOVERNED BY
CASES CULMINATING IN TOLLETT V. HENDERSON, 411 U.S. 258 (1973).  IN
THAT CASE THE STATE NO DOUBT LACKED "POWER" TO BRING HENDERSON TO TRIAL
WITHOUT A VALID GRAND JURY INDICTMENT; YET THAT CONSTITUTIONAL
DISABILITY WAS HELD BY US TO BE MERGED IN THE GUILTY PLEA.  I DO NOT
SEE WHY A CONSTITUTIONAL CLAIM THE CONSEQUENCES OF WHICH MAKE IT THE
IDENTICAL TWIN OF DOUBLE JEOPARDY MAY NOT, LIKE DOUBLE JEOPARDY, BE
WAIVED BY THE PERSON FOR WHOSE BENEFIT IT IS ACCORDED.  KEPNER V.
UNITED STATES, 195 U.S. 100, 131 (1904); HARRIS V. UNITED STATES, 237
F.2D 274, 277 (CA8 1956); KISTNER V. UNITED STATES, 332 F.2D 978, 980
(CA8 1964). 

IN TOLLETT V. HENDERSON, SUPRA, WE HELD THAT "JUST AS THE GUILTY
PLEAS IN THE BRADY TRILOGY WERE FOUND TO FORECLOSE DIRECT INQUIRY INTO
THE MERITS OF CLAIMED ANTECEDENT CONSTITUTIONAL VIOLATIONS THERE, . . .
RESPONDENT'S GUILTY PLEA HERE ALIKE FORECLOSES INDEPENDENT INQUIRY INTO
THE CLAIM OF DISCRIMINATION IN THE SELECTION OF THE GRAND JURY."  411
U.S., AT 266.  SURELY THE DUE PROCESS VIOLATION FOUND BY THE COURT
TODAY IS NO LESS "ANTECEDENT" THAN THE CONSTITUTIONAL VIOLATIONS
CLAIMED TO MAKE THE GRAND JURY INDICTMENT INVALID IN TOLLETT V.
HENDERSON, THE CONFESSION INADMISSIBLE IN MCMANN, OR THE EXERCISE OF
THE RIGHT TO A JURY TRIAL IMPERMISSIBLY BURDENED IN BRADY AND PARKER. 
AS THE COURT NOTES, WE REAFFIRMED IN TOLLETT V. HENDERSON THE PRINCIPLE
OF THE BRADY TRILOGY THAT "A GUILTY PLEA REPRESENTS A BREAK IN THE
CHAIN OF EVENTS WHICH HAS PRECEDED IT IN THE CRIMINAL PROCESS."  411
U.S., AT 267.  WE WENT ON TO SAY THERE: 

    "WHEN A CRIMINAL DEFENDANT HAS SOLEMNLY ADMITTED IN OPEN COURT

  THAT HE IS IN FACT GUILTY OF THE OFFENSE WITH WHICH HE IS

  CHARGED, HE MAY NOT THEREAFTER RAISE INDEPENDENT CLAIMS RELATING

  TO THE DEPRIVATION OF CONSTITUTIONAL RIGHTS THAT OCCURRED PRIOR

  TO THE ENTRY OF THE GUILTY PLEA.  HE MAY ONLY ATTACK THE

  VOLUNTARY AND INTELLIGENT CHARACTER OF THE GUILTY PLEA BY SHOWING

  THAT THE ADVICE HE RECEIVED FROM COUNSEL WAS NOT WITHIN THE

  STANDARDS SET FORTH IN MCMANN."  IBID.

THE ASSERTION BY THE COURT THAT THIS REASONING IS SOMEHOW INAPPLICABLE
HERE BECAUSE THE CLAIM GOES "TO THE VERY POWER OF THE STATE TO BRING
THE DEFENDANT INTO COURT TO ANSWER THE CHARGE BROUGHT AGAINST HIM" IS
LITTLE OTHER THAN A CONCLUSION.  ANY DIFFERENCE BETWEEN THE ISSUE
RESOLVED THE OTHER WAY IN TOLLETT V. HENDERSON AND THE ISSUE BEFORE US
TODAY IS AT MOST SEMANTIC.  BUT THE COURT'S "TEST" NOT ONLY FAILS TO
DISTINGUISH HENDERSON; IT ALSO FAILS TO PROVIDE ANY REASONED BASIS ON
WHICH TO APPROACH SUCH QUESTIONS AS WHETHER A SPEEDY TRIAL CLAIM IS
MERGED IN A GUILTY PLEA.  I BELIEVE THE COURT'S DEPARTURE TODAY FROM
THE PRINCIPLES OF HENDERSON AND THE CASES PRECEDING IT MUST BE
RECOGNIZED AS A POTENTIALLY MAJOR BREACH IN THE WALL OF CERTAINTY
SURROUNDING GUILTY PLEAS FOR WHICH WE HAVE FOUND CONSTITUTIONAL
SANCTION IN THOSE CASES. 

THERE IS NO INDICATION IN THIS RECORD THAT RESPONDENT'S GUILTY PLEA
WAS THE RESULT OF AN AGREEMENT WITH THE PROSECUTOR.  BUT THE COURT'S
BASIS FOR DISTINGUISHING THE HENDERSON AND BRADY CASES SEEMS SO
INSUBSTANTIAL AS TO PERMIT THE DOCTRINE OF THIS CASE TO APPLY TO GUILTY
PLEAS WHICH HAVE BEEN OBTAINED AS A RESULT OF "PLEA BARGAINS."  IN THAT
EVENT IT WILL BE NOT MERELY THE STATE WHICH STANDS TO LOST, BUT THE
ACCUSED DEFENDANT IN THE POSITION OF THE RESPONDENT AS WELL.  SINCE THE
GREAT MAJORITY OF CRIMINAL CASES ARE RESOLVED BY PLEA BARGAINING,
DEFENDANTS AS A CLASS HAVE AT LEAST AS GREAT AN INTEREST IN THE
FINALITY OF VOLUNTARY GUILTY PLEAS AS DO PROSECUTORS.  IF THAT FINALITY
MAY BE SWEPT ASIDE WITH THE EASE EXHIBITED BY THE COURT'S APPROACH
TODAY, PROSECUTORS WILL HAVE A REDUCED INCENTIVE TO BARGAIN, TO THE
DETRIMENT OF THE MANY DEFENDANTS FOR WHOM PLEA BARGAINING OFFERS THE
ONLY HOPE FOR AMELIORATING THE CONSEQUENCES TO THEM OF A SERIOUS
CRIMINAL CHARGE. 

        III 

BUT IF, AS I BELIEVE, A PROPER ANALYSIS OF RESPONDENT'S
CONSTITUTIONAL CLAIM PRODUCES AT MOST A VIOLATION OF THE STANDARDS LAID
DOWN IN NORTH CAROLINA V. PEARCE, SUPRA, I AGREE WITH THE COURT, THOUGH
NOT FOR THE REASONS IT GIVES, THAT RESPONDENT'S CLAIM WAS NOT MERGED IN
HIS GUILTY PLEA.  IMPOSITION OF SENTENCE IN VIOLATION OF PEARCE IS NOT
AN "ANTECEDENT CONSTITUTIONAL VIOLATION," SINCE SENTENCE IS CUSTOMARILY
IMPOSED AFTER A PLEA OF GUILTY, AND IS A SEPARATE LEGAL EVENT FROM THE
DETERMINATION BY THE COURT THAT THE DEFENDANT IS IN FACT GUILTY OF THE
OFFENSE WITH WHICH HE IS CHARGED. 

IF RESPONDENT'S CLAIM IS PROPERLY ANALYZED IN TERMS OF PEARCE, I
WOULD THINK THAT A RESULT QUITE DIFFERENT FROM THAT MANDATED IN THE
COURT'S OPINION WOULD OBTAIN.  PEARCE AND THE DECISIONS FOLLOWING IT
HAVE MADE IT CLEAR THAT THE WRONG LIES IN THE INCREASED SENTENCE, NOT
IN THE JUDGMENT OF CONVICTION, AND THAT THE REMEDY FOR A PEARCE DEFECT
IS A REMAND FOR SENTENCING CONSISTENT WITH DUE PROCESS.  NORTH CAROLINA
V. RICE, 404 U.S. 244, 247 - 248 (1971).  IN RICE WE CONCLUDED THAT THE
COURT OF APPEALS HAD ERRED IN RULING THAT PEARCE AUTHORIZED THE
EXPUNGING OF RICE'S CONVICTION AFTER HIS TRIAL DE NOVO IN NORTH
CAROLINA: 

     "IT COULD NOT BE CLEARER . . . THAT PEARCE DOES NOT INVALIDATE

  THE CONVICTION THAT RESULTED FROM RICE'S SECOND TRIAL . . . .

  PEARCE, IN SHORT, REQUIRES ONLY RESENTENCING; THE CONVICTION IS

  NOT IPSO FACTO SET ASIDE AND A NEW TRIAL REQUIRED.  EVEN IF THE

  HIGHER SENTENCE IMPOSED AFTER RICE'S TRIAL DE NOVO WAS VULNERABLE

  UNDER PEARCE, RICE WAS ENTITLED NEITHER TO HAVE HIS CONVICTION

  ERASED NOR TO AVOID THE COLLATERAL CONSEQUENCES FLOWING FROM THAT

  CONVICTION AND A PROPER SENTENCE."  IBID.

SINCE RICE HAD COMPLETELY SERVED HIS SENTENCE, RATHER THAN REACHING THE
MERITS OF RICE'S PEARCE CLAIM, WE REMANDED FOR A DETERMINATION WHETHER
ANY COLLATERAL CONSEQUENCES FLOWED FROM HIS SERVICE OF THE LONGER
SENTENCE IMPOSED AFTER RETRIAL, OR WHETHER THE CASE WAS MOOT. 

SINCE RICE HAD COMPLETELY SERVED HIS SENTENCE, RATHER THAN REACHING
THE MERITS OF RICE'S PEARCE CLAIM, WE REMANDED FOR A DETERMINATION
WHETHER ANY COLLATERAL CONSEQUENCES FLOWED FROM HIS SERVICE OF THE
LONGER SENTENCE IMPOSED AFTER RETRIAL, OR WHETHER THE CASE WAS MOOT. 

HERE, WHILE RESPONDENT FACED THE PROSPECT OF A MORE SEVERE SENTENCE
AT THE CONCLUSION OF HIS FELONY TRIAL IN THE SUPERIOR COURT OF NORTH
CAROLINA, IT WAS BY NO MEANS SELF-EVIDENT THAT THIS WOULD BE THE
RESULT.  THE MAXIMUM SENTENCE WHICH HE COULD RECEIVE ON THE MISDEMEANOR
COUNT WAS ONE AND ONE-HALF YEARS, BUT NOTHING IN THE RECORD INDICATES
THAT THE SUPERIOR COURT JUDGE MIGHT NOT IMPOSE A LESSER PENALTY THAN
THAT, OR EVEN GRANT PROBATION.  NOR IS THERE ANY INDICATION IN THE
HABEAS RECORD, WHICH CONTAINS ONLY A FRAGMENT OF THE STATE COURT
PROCEEDINGS, THAT THE SUPERIOR COURT JUDGE MIGHT NOT AT THE CONCLUSION
OF THE TRIAL AND AFTER A VERDICT OF GUILTY HAVE BEFORE HIM FOR
SENTENCING PURPOSES INFORMATION WHICH WOULD SUPPORT AN AUGMENTED
SENTENCE UNDER PEARCE.  IN FACT, THE HABEAS COURT FOUND THAT THE
SENTENCE ACTUALLY IMPOSED WAS MORE SEVERE THAN THAT WHICH COULD HAVE
BEEN IMPOSED UNDER THE MISDEMEANOR CHARGE.  BUT THE REMEDY FOR THAT
VIOLATION SHOULD BE A DIRECTION TO THE STATE COURT TO RESENTENCE IN
ACCORDANCE WITH PEARCE, RATHER THAN AN ORDER COMPLETELY ANNULLING THE
CONVICTION.  RESPONDENT WAS ORIGINALLY CONVICTED OF ASSAULTING A FELLOW
INMATE WITH A DEADLY WEAPON, AND LATER PLEADED GUILTY TO A CHARGE OF
ASSAULTING THE INMATE WITH A DEADLY WEAPON WITH INTENT TO KILL HIM. 
BUT IN SPITE OF BOTH A VERDICT OF GUILTY ON ONE CHARGE AND A PLEA OF
GUILTY TO THE OTHER, THE COURT'S DECISION MAY WELL, AS A PRACTICAL
MATTER, ASSURE THAT NO PENALTY WHATEVER WILL BE IMPOSED ON HIM. 

MR. JUSTICE POWELL JOINS IN PART II OF THIS OPINION. 

RICHARD N. LEAGUE, ASSISTANT ATTORNEY GENERAL OF NORTH CAROLINA,
ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE BRIEF WAS ROBERT
MORGAN, ATTORNEY GENERAL. 

JAMES E. KEENAN, BY APPOINTMENT OF THE COURT, 414 U.S. 1020, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :






FULLER V. OREGON, 417 U.S. 40 


       FULLER V. OREGON

        CERTIORARI TO THE COURT OF APPEALS OF OREGON

        NO. 73 - 5280.  ARGUED MARCH 26, 1974--DECIDED MAY 20,
1974;

           12 ORE.APP.  152, 504 P.2D 1393, AFFIRMED. 


    PETITIONER, WHO PLEADED GUILTY TO A CRIME AND WAS GIVEN A

  PROBATIONARY SENTENCE, CONDITIONED UPON HIS COMPLYING WITH A JAIL

  WORK-RELEASE PROGRAM PERMITTING HIM TO ATTEND COLLEGE AND ALSO

  UPON HIS REIMBURSING THE COUNTY FOR THE FEES AND EXPENSES OF AN

  ATTORNEY AND INVESTIGATOR WHOSE SERVICES HAD BEEN PROVIDED HIM

  BECAUSE OF HIS INDIGENCY, ATTACKS THE CONSTITUTIONALITY OF

  OREGON'S RECOUPMENT STATUTE, WHICH WAS UPHELD ON APPEAL.  THAT

  LAW REQUIRES CONVICTED DEFENDANTS WHO ARE INDIGENT AT THE TIME OF

THE CRIMINAL PROCEEDINGS AGAINST THEM BUT WHO SUBSEQUENTLY

ACQUIRE THE FINANCIAL MEANS TO DO SO, TO REPAY THE COSTS OF THEIR

  LEGAL DEFENSE.  DEFENDANTS WITH NO LIKELIHOOD OF HAVING THE MEANS

  TO REPAY ARE NOT EVEN CONDITIONALLY OBLIGATED TO DO SO, AND THOSE

  THUS OBLIGATED ARE NOT SUBJECTED TO COLLECTION PROCEDURES UNTIL

  THEIR INDIGENCY HAS ENDED AND NO MANIFEST HARDSHIP WILL RESULT. 

  HELD: 

 1.  THE OREGON RECOUPMENT SCHEME DOES NOT VIOLATE THE EQUAL

  PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 46 - 50. 

        (A)  THE STATUTE RETAINS ALL THE EXEMPTIONS ACCORDED TO

           OTHER JUDGMENT DEBTORS, IN ADDITION TO THE OPPORTUNITY

           TO SHOW THAT RECOVERY OF LEGAL DEFENSE COSTS WILL IMPOSE

           "MANIFEST HARDSHIP."  JAMES V. STRANGE, 407 U.S. 128,

           DISTINGUISHED.  PP. 46 - 48. 

        (B)  THE STATUTORY DISTINCTION BETWEEN THOSE WHO ARE

           CONVICTED, ON THE ONE HAND, AND THOSE WHO ARE NOT OR

           WHOSE CONVICTIONS ARE REVERSED, ON THE OTHER, IS NOT AN

           INVIDIOUS CLASSIFICATION, SINCE THE LEGISLATIVE DECISION

NOT TO IMPOSE A REPAYMENT OBLIGATION ON A DEFENDANT

    FORCED TO SUBMIT TO CRIMINAL PROSECUTION THAT DOES NOT

           END IN CONVICTION IS OBJECTIVELY RATIONAL.  PP. 48 -

           50. 

     2.  THE OREGON LAW DOES NOT INFRINGE UPON A DEFENDANT'S RIGHT

  TO COUNSEL SINCE THE KNOWLEDGE THAT HE MAY ULTIMATELY HAVE TO

  REPAY THE COSTS OF LEGAL SERVICES DOES NOT AFFECT HIS ABILITY TO

  OBTAIN SUCH SERVICES.  THE CHALLENGED STATUTE IS THUS NOT SIMILAR

 TO A PROVISION THAT "CHILLS) THE ASSERTION OF CONSTITUTIONAL

  RIGHTS BY PENALIZING THOSE WHO CHOOSE TO EXERCISE THEM," UNITED

  STATES V. JACKSON, 390 U.S. 570, 581.  PP. 51 - 54. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND WHITE, BLACKMUN, POWELL, AND REHNQUIST, J.J.,

  JOINED.  DOUGLAS, J., FILED AN OPINION CONCURRING IN THE

  JUDGMENT, POST, P. 54.  MARSHALL, J., FILED A DISSENTING OPINION,

  IN WHICH BRENNAN, J., JOINED, POST, P. 59. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CALLED UPON TO DETERMINE WHETHER OREGON MAY
CONSTITUTIONALLY REQUIRE A PERSON CONVICTED OF A CRIMINAL OFFENSE TO
REPAY TO THE STATE THE COSTS OF PROVIDING HIM WITH EFFECTIVE
REPRESENTATION OF COUNSEL, WHEN HE IS INDIGENT AT THE TIME OF THE
CRIMINAL PROCEEDINGS BUT SUBSEQUENTLY ACQUIRES THE MEANS TO BEAR THE
COSTS OF HIS LEGAL DEFENSE. 

THE PETITIONER FULLER PLEADED GUILTY, ON JULY 20, 1972, TO AN
INFORMATION CHARGING HIM WITH SODOMY IN THE THIRD DEGREE.  /1/  AT THE
HEARING ON THE PLEA AND IN OTHER COURT PROCEEDINGS HE WAS REPRESENTED
BY A LOCAL MEMBER OF THE BAR APPOINTED BY THE COURT UPON THE
PETITIONER'S REPRESENTATION THAT HE WAS INDIGENT AND UNABLE TO HIRE A
LAWYER.  FULLER'S COUNSEL IN TURN HIRED AN INVESTIGATOR TO AID IN
GATHERING FACTS FOR HIS DEFENSE, AND THE INVESTIGATOR'S FEES WERE ALSO
ASSUMED BY THE STATE.  FULLER WAS SUBSEQUENTLY SENTENCED TO FIVE YEARS
OF PROBATION, CONDITIONED UPON HIS SATISFACTORILY COMPLYING WITH THE
REQUIREMENTS OF A WORK-RELEASE PROGRAM AT THE COUNTY JAIL THAT WOULD
PERMIT HIM TO ATTEND COLLEGE, AND ALSO UPON HIS REIMBURSEMENT TO THE
COUNTY OF THE FEES AND EXPENSES OF THE ATTORNEY AND INVESTIGATOR WHOSE
SERVICES HAD BEEN PROVIDED HIM BECAUSE OF INDIGENT STATUS.  ON APPEAL
TO THE OREGON COURT OF APPEALS, HIS PRINCIPAL CONTENTION WAS THAT THE
STATE COULD NOT CONSTITUTIONALLY CONDITION HIS PROBATION ON THE
REPAYMENT OF THESE EXPENSES.  /2/  WITH ONE JUDGE DISSENTING, THE
IMPOSITION OF HIS SENTENCE WAS AFFIRMED, 12 ORE.APP.  152, 504 P.2D
1393, AND THE SUPREME COURT OF OREGON SUBSEQUENTLY DENIED FULLER'S
PETITION FOR REVIEW.  BECAUSE OF THE IMPORTANCE OF THE QUESTION
PRESENTED AND THE CONFLICT OF OPINION ON THE CONSTITUTIONAL ISSUE
INVOLVED, /3/  WE GRANTED CERTIORARI, 414 U.S. 1111. 

        I 

WE BEGIN WITH CONSIDERATION OF THE PLAN AND OPERATION OF THE
CHALLENGED STATUTE.  BY FORCE OF INTERPRETATION OF THE STATE'S
CONSTITUTION AND COMPREHENSIVE LEGISLATION, OREGON MANDATES THAT EVERY
DEFENDANT IN A CRIMINAL CASE MUST BE ASSIGNED A LAWYER AT STATE EXPENSE
IF "(IT APPEARS TO THE COURT THAT THE DEFENDANT IS WITHOUT MEANS AND IS
UNABLE TO OBTAIN COUNSEL."  ORE.REV.STAT.  135 - 050(1)(D).  /4/  AS
PART OF A RECOUPMENT STATUTE PASSED IN 1971, OREGON REQUIRES THAT IN
SOME CASES ALL OR PART OF THE "EXPENSES SPECIALLY INCURRED BY THE STATE
IN PROSECUTING THE DEFENDANT," 161.665(2), BE REPAID TO THE STATE, AND
THAT WHEN A CONVICTED PERSON IS PLACED ON PROBATION REPAYMENT OF SUCH
EXPENSES MAY BE MADE A CONDITION OF PROBATION.  /5/  THESE EXPENSES
INCLUDE THE COSTS OF THE CONVICTED PERSON'S LEGAL DEFENSE.  /6/ 

AS THE OREGON APPELLATE COURT NOTED IN ITS OPINION IN THIS CASE,
HOWEVER, THE REQUIREMENT OF REPAYMENT "IS NEVER MANDATORY."  12
ORE.APP., AT 156, 504 P.2D, AT 1395.  RATHER, SEVERAL CONDITIONS MUST
BE SATISFIED BEFORE A PERSON MAY BE REQUIRED TO REPAY THE COSTS OF HIS
LEGAL DEFENSE.  FIRST, A REQUIREMENT OF REPAYMENT MAY BE IMPOSED ONLY
UPON A CONVICTED DEFENDANT; THOSE WHO ARE ACQUITTED, WHOSE TRIALS END
IN MISTRIAL OR DISMISSAL, AND THOSE WHOSE CONVICTIONS ARE OVERTURNED
UPON APPEAL FACE NO POSSIBILITY OF BEING REQUIRED TO PAY.  ORE.  REV.
STAT. 161.655(1).  SECOND, A COURT MAY NOT ORDER A CONVICTED PERSON TO
PAY THESE EXPENSES UNLESS HE "IS OR WILL BE ABLE TO PAY THEM."  ORE. 
REV. STAT. 161.665(3).  THE SENTENCING COURT MUST "TAKE ACCOUNT OF THE
FINANCIAL RESOURCES OF THE DEFENDANT AND THE NATURE OF THE BURDEN THAT
PAYMENT OF COSTS WILL IMPOSE."  IBID.  AS THE OREGON COURT PUT THE
MATTER IN THIS CASE, NO REQUIREMENT TO REPAY MAY BE IMPOSED IF IT
APPEARS AT THE TIME OF SENTENCING THAT "THERE IS NO LIKELIHOOD THAT A
DEFENDANT'S INDIGENCY WILL END . . ."  12 ORE.APP., AT 159, 504 P.2D,
AT 1397.  THIRD, A CONVICTED PERSON UNDER AN OBLIGATION TO REPAY "MAY
AT ANY TIME PETITION THE COURT WHICH SENTENCED HIM FOR REMISSION OF THE
PAYMENT OF COSTS OR OF ANY UNPAID PORTION THEREOF."  ORE.  REV. STAT.
161.655(4).  THE COURT IS EMPOWERED TO REMIT IF PAYMENT "WILL IMPOSE
MANIFEST HARDSHIP ON THE DEFENDANT OR HIS DIATE FAMILY . . . ."  IBID.
FINALLY, NO CONVICTED PERSON MAY BE HELD IN CONTEMPT FOR FAILURE TO
REPAY IF HE SHOWS THAT "HIS DEFAULT WAS NOT ATTRIBUTABLE TO AN
INTENTIONAL REFUSAL TO OBEY THE ORDER OF THE COURT OR TO A FAILURE ON
HIS PART TO MAKE A GOOD FAITH EFFORT TO MAKE THE PAYMENT . . . ." 
ORE.  REV. STAT. 161.685 (2). 

THUS, THE RECOUPMENT STATUTE IS QUITE CLEARLY DIRECTED ONLY AT THOSE
CONVICTED DEFENDANTS WHO ARE INDIGENT AT THE TIME OF THE CRIMINAL
PROCEEDINGS AGAINST THEM BUT WHO SUBSEQUENTLY GAIN THE ABILITY TO PAY
THE EXPENSES OF LEGAL REPRESENTATION.  DEFENDANTS WITH NO LIKELIHOOD OF
HAVING THE MEANS TO REPAY ARE NOT PUT UNDER EVEN A CONDITIONAL
OBLIGATION TO DO SO, AND THOSE UPON WHOM A CONDITIONAL OBLIGATION IS
IMPOSED ARE NOT SUBJECTED TO COLLECTION PROCEDURES UNTIL THEIR
INDIGENCY HAS ENDED AND NO "MANIFEST HARDSHIP"  WILL RESULT.  THE
CONTRAST WITH APPOINTMENT OF COUNSEL PROCEDURES IN STATES WITHOUT
RECOUPMENT REQUIREMENTS /7/  IS THUS RELATIVELY SMALL: A LAWYER IS
PROVIDED AT THE EXPENSE OF THE STATE TO ALL DEFENDANTS WHO ARE UNABLE,
EVEN MOMENTARILY, TO HIRE ONE, AND THE OBLIGATION TO REPAY THE STATE
ACCRUES ONLY TO THOSE WHO LATER ACQUIRE THE MEANS TO DO SO WITHOUT
HARDSHIP. 

        II 

THE PETITIONER'S FIRST CONTENTION IS THAT OREGON'S RECOUPMENT SYSTEM
VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
BECAUSE OF VARIOUS CLASSIFICATIONS EXPLICITLY OR IMPLICITLY DRAWN BY
THE LEGISLATIVE PROVISIONS.  HE CALLS ATTENTION TO OUR DECISION IN
JAMES V. STRANGE, 407 U.S. 128, WHICH HELD INVALID UNDER THE EQUAL
PROTECTION CLAUSE A LAW ENACTED BY KANSAS THAT WAS SOMEWHAT SIMILAR TO
THE LEGISLATION NOW BEFORE US.  BUT THE OFFENDING ASPECT OF THE KANSAS
STATUTE WAS ITS PROVISION THAT IN AN ACTION TO COMPEL REPAYMENT OF
COUNSEL FEES "(NONE OF THE EXEMPTIONS PROVIDED FOR IN THE CODE OF CIVIL
PROCEDURE (FOR COLLECTION OF OTHER JUDGMENT DEBTS) SHALL APPLY TO ANY
SUCH JUDGMENT . . . ," KAN. STAT. ANN. 22 - 4513 (A) (SUPP. 1971), A
PROVISION WHICH "STRIPPED) FROM INDIGENT DEFENDANTS THE ARRAY OF
PROTECTIVE EXEMPTIONS KANSAS HAS ERECTED FOR OTHER CIVIL JUDGMENT
DEBTORS . . . ."  407 U.S., AT 135.  /8/  THE COURT FOUND THAT THE
ELIMINATION OF THE EXEMPTIONS NORMALLY AVAILABLE TO JUDGMENT DEBTORS
"EMBODIED) ELEMENTS OF PUNITIVENESS AND DISCRIMINATION WHICH VIOLATE
THE RIGHTS OF CITIZENS TO EQUAL TREATMENT UNDER THE LAW."  ID., AT
142. 

THE OREGON STATUTE UNDER CONSIDERATION HERE SUFFERS FROM NO SUCH
INFIRMITY.  AS THE OREGON COURT OF APPEALS OBSERVED, "(NO DENIAL OF THE
EXEMPTIONS FROM EXECUTION AFFORDED TO OTHER JUDGMENT DEBTORS IS
INCLUDED IN THE OREGON STATUTES."  12 ORE.APP., AT 159, 504 P.2D, AT
1397.  INDEED, A SEPARATE PROVISION DIRECTS THAT "(A) JUDGMENT THAT THE
DEFENDANT PAY MONEY, EITHER AS A FINE OR AS COSTS AND DISBURSEMENTS OF
THE ACTION, OR BOTH, SHALL BE DOCKETED AS A JUDGMENT IN A CIVIL ACTION
AND WITH LIKE EFFECT . . . ."  ORE.  REV. STAT. 137.180.  THE CONVICTED
PERSON FROM WHOM RECOUPMENT IS SOUGHT THUS RETAINS ALL THE EXEMPTIONS
ACCORDED OTHER JUDGMENT DEBTORS, IN ADDITION TO THE OPPORTUNITY TO SHOW
AT ANY TIME THAT RECOVERY OF THE COSTS OF HIS LEGAL DEFENSE WILL IMPOSE
"MANIFEST HARDSHIP," SUPRA, AT 45 - 46.  THE LEGISLATION BEFORE US,
THEREFORE, IS WHOLLY FREE OF THE KIND OF DISCRIMINATION THAT WAS HELD
IN JAMES V. STRANGE TO VIOLATE THE EQUAL PROTECTION CLAUSE.  /9/ 

THE PETITIONER CONTENDS FURTHER, HOWEVER, THAT THE OREGON STATUTE
DENIES EQUAL PROTECTION OF THE LAWS IN ANOTHER WAY--BY DISCRIMINATING
BETWEEN DEFENDANTS WHO ARE CONVICTED ON THE ONE HAND, AND THOSE WHO ARE
NOT CONVICTED OR WHOSE CONVICTIONS ARE REVERSED, ON THE OTHER.  OUR
REVIEW OF THIS DISTINCTION, OF COURSE, IS A LIMITED ONE.  AS THE COURT
STATED IN JAMES V. STRANGE:  "WE DO NOT INQUIRE WHETHER THIS STATUTE IS
WISE OR DESIRABLE . . . . MISGUIDED LAWS MAY NONETHELESS BE
CONSTITUTIONAL."  407 U.S., AT 133.  OUR TASK IS MERELY TO DETERMINE
WHETHER THERE IS "SOME RATIONALITY IN THE NATURE OF THE CLASS SINGLED
OUT."  RINALDI V. YEAGER, 384 U.S. 305, 308 - 309.  SEE ALSO MCGINNIS
V. ROYSTER, 410 U.S. 263; MCGOWAN V. MARYLAND, 366 U.S. 420.  IN
RINALDI THE COURT FOUND IMPERMISSIBLE NEW JERSEY'S DECISION TO SINGLE
OUT PRISONERS CONFINED TO STATE INSTITUTIONS FOR IMPOSITION OF AN
OBLIGATION TO REPAY TO THE STATE COSTS INCURRED IN PROVIDING FREE
TRANSCRIPTS OF TRIAL COURT PROCEEDINGS REQUIRED BY THIS COURT'S
DECISION IN GRIFFIN V. ILLINOIS, 351 U.S. 12.  THE LEGISLATIVE DECISION
TO TAX THOSE CONFINED TO PRISON BUT NOT THOSE ALSO CONVICTED BUT GIVEN
A SUSPENDED SENTENCE, PROBATION, OR A FINE WITHOUT IMPRISONMENT WAS
FOUND TO BE INVIDIOUSLY DISCRIMINATORY AND THUS VIOLATIVE OF THE
REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE.  IN THE CASE BEFORE US,
HOWEVER, THE SOLE DISTINCTION IS BETWEEN THOSE WHO ARE ULTIMATELY
CONVICTED AND THOSE WHO ARE NOT.  /10/ 

WE CONCLUDE THAT THIS CLASSIFICATION IS WHOLLY NON-INVIDIOUS.  A
DEFENDANT WHOSE TRIAL ENDS WITHOUT CONVICTION OR WHOSE CONVICTION IS
OVERTURNED ON APPEAL HAS BEEN SERIOUSLY IMPOSED UPON BY SOCIETY WITHOUT
ANY CONCLUSIVE DEMONSTRATION THAT HE IS CRIMINALLY CULPABLE.  HIS LIFE
HAS BEEN INTERRUPTED AND SUBJECTED TO GREAT STRESS, AND HE MAY HAVE
INCURRED FINANCIAL HARDSHIP THROUGH LOSS OF JOB OR POTENTIAL WORKING
HOURS.  HIS REPUTATION MAY HAVE BEEN GREATLY DAMAGED.  THE IMPOSITION
OF SUCH DISLOCATIONS AND HARDSHIPS WITHOUT AN ULTIMATE CONVICTION IS,
OF COURSE, UNAVOIDABLE IN A LEGAL SYSTEM THAT REQUIRES PROOF OF GUILT
BEYOND A REASONABLE DOUBT AND GUARANTEES IMPORTANT PROCEDURAL
PROTECTIONS TO EVERY DEFENDANT IN A CRIMINAL TRIAL.  BUT OREGON COULD
SURELY DECIDE WITH OBJECTIVE RATIONALITY THAT WHEN A DEFENDANT HAS BEEN
FORCED TO SUBMIT TO A CRIMINAL PROSECUTION THAT DOES NOT END IN
CONVICTION, HE WILL BE FREED OF ANY POTENTIAL LIABILITY TO REIMBURSE
THE STATE FOR THE COSTS OF HIS DEFENSE.  THIS LEGISLATIVE DECISION
REFLECTS NO MORE THAN AN EFFORT TO ACHIEVE ELEMENTAL FAIRNESS AND IS A
FAR CRY FROM THE KIND OF INVIDIOUS DISCRIMINATION THAT THE EQUAL
PROTECTION CLAUSE CONDEMNS.  /11/

        III 

THE PETITIONER'S SECOND BASIC CONTENTION IS THAT OREGON'S RECOUPMENT
STATUTE INFRINGES UPON HIS CONSTITUTIONAL RIGHT TO HAVE COUNSEL
PROVIDED BY THE STATE WHEN HE IS UNABLE BECAUSE OF INDIGENCY HIMSELF TO
HIRE A LAWYER.  GIDEON V. WAINWRIGHT, 372 U.S. 335; ARGERSINGER V.
HAMLIN, 407 U.S. 25.  THE ARGUMENT IS NOT THAT THE LEGAL REPRESENTATION
ACTUALLY PROVIDED IN THIS CASE WAS INEFFECTIVE OR INSUFFICIENT.  NOR
DOES THE PETITIONER CLAIM THAT THE FEES AND EXPENSES HE MAY HAVE TO
REPAY CONSTITUTE UNREASONABLE COMPENSATION FOR THE DEFENSE PROVIDED
HIM.  RATHER, HE ASSERTS THAT A DEFENDANT'S KNOWLEDGE THAT HE MAY
REMAIN UNDER AN OBLIGATION TO REPAY THE EXPENSES INCURRED IN PROVIDING
HIM LEGAL REPRESENTATION MIGHT IMPEL HIM TO DECLINE THE SERVICES OF AN
APPOINTED ATTORNEY AND THUS "CHILL" HIS CONSTITUTIONAL RIGHT TO
COUNSEL. 

THIS VIEW WAS ARTICULATED BY THE SUPREME COURT OF CALIFORNIA, IN A
CASE INVALIDATING CALIFORNIA'S RECOUPMENT LEGISLATION, IN THE FOLLOWING
TERMS: 

     "(WE BELIEVE THAT AS KNOWLEDGE OF (THE RECOUPMENT) PRACTICE
HAS

  GROWN AND CONTINUES TO GROW MANY INDIGENT DEFENDANTS WILL COME TO

  REALIZE THAT THE JUDGE'S OFFER TO SUPPLY COUNSEL IS NOT THE

  GRATUITOUS OFFER OF ASSISTANCE THAT IT MIGHT APPEAR TO BE; THAT,

  IN THE EVENT THE CASE RESULTS IN A GRANT OF PROBATION, ONE OF THE

  CONDITIONS MIGHT WELL BE THE REIMBURSEMENT OF THE COUNTY FOR THE

  EXPENSE INVOLVED.  THIS KNOWLEDGE IS QUITE LIKELY TO DETER OR

  DISCOURAGE MANY DEFENDANTS FROM ACCEPTING THE OFFER OF COUNSEL

  DESPITE THE GRAVITY OF THE NEED FOR SUCH REPRESENTATION AS

  EMPHASIZED BY THE (SUPREME) (COURT IN GIDEON . . . ."  IN RE

  ALLEN, 71 CAL.2D 388, 391, 455 P.2D 143, 144. 

WE HAVE CONCLUDED THAT THIS REASONING IS WIDE OF THE CONSTITUTIONAL
MARK. 

THE FOCAL POINT OF THIS COURT'S DECISIONS SECURING THE RIGHT TO
STATE-APPOINTED COUNSEL FOR INDIGENTS WAS THE "NOBLE IDEAL" THAT EVERY
CRIMINAL DEFENDANT BE GUARANTEED NOT ONLY "PROCEDURAL AND SUBSTANTIVE
SAFEGUARDS DESIGNED TO ASSURE FAIR TRIALS BEFORE IMPARTIAL TRIBUNALS IN
WHICH EVERY DEFENDANT STANDS EQUAL BEFORE THE LAW," BUT ALSO THE EXPERT
ADVICE NECESSARY TO RECOGNIZE AND TAKE ADVANTAGE OF THOSE SAFEGUARDS. 
GIDEON V. WAINWRIGHT, 372 U.S., AT 344.  IN THE NOW FAMILIAR WORDS OF
THE COURT'S SEMINAL OPINION IN POWELL V. ALABAMA, 287 U.S. 45, 68 - 69,
QUOTED IN GIDEON, AT 344 - 345: 

     "THE RIGHT TO BE HEARD WOULD BE, IN MANY CASES, OF LITTLE
AVAIL

  IF IT DID NOT COMPREHEND THE RIGHT TO BE HEARD BY COUNSEL.  EVEN

  THE INTELLIGENT AND EDUCATED LAYMAN HAS SMALL AND SOMETIMES NO

  SKILL IN THE SCIENCE OF LAW.  IF CHARGED WITH CRIME, HE IS

  INCAPABLE, GENERALLY, OF DETERMINING FOR HIMSELF WHETHER THE

  INDICTMENT IS GOOD OR BAD.  HE IS UNFAMILIAR WITH THE RULES OF

  EVIDENCE.  LEFT WITHOUT THE AID OF COUNSEL HE MAY BE PUT ON TRIAL

  WITHOUT A PROPER CHARGE, AND CONVICTED UPON INCOMPETENT
EVIDENCE,

  OR EVIDENCE IRRELEVANT TO THE ISSUE OR OTHERWISE INADMISSIBLE. 

  HE LACKS BOTH THE SKILL AND KNOWLEDGE ADEQUATELY TO PREPARE HIS

  DEFENSE, EVEN THOUGH HE HAVE A PERFECT ONE.  HE REQUIRES THE

  GUIDING HAND OF COUNSEL AT EVERY STEP IN THE PROCEEDINGS AGAINST

  HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE FACES THE DANGER OF

  CONVICTION BECAUSE HE DOES NOT KNOW HOW TO ESTABLISH HIS

  INNOCENCE." 

OREGON'S SYSTEM FOR PROVIDING COUNSEL QUITE CLEARLY DOES NOT DEPRIVE
ANY DEFENDANT OF THE LEGAL ASSISTANCE NECESSARY TO MEET THESE NEEDS. 
AS THE STATE COURT OF APPEALS OBSERVED IN THIS CASE, AN INDIGENT IS
ENTITLED TO FREE COUNSEL "WHEN HE NEEDS IT"--THAT IS, DURING EVERY
STAGE OF THE CRIMINAL PROCEEDINGS AGAINST HIM.  12 ORE.APP., AT 158 -
159, 504 P.2D, AT 1396.  THE FACT THAT AN INDIGENT WHO ACCEPTS STATE
APPOINTED LEGAL REPRESENTATION KNOWS THAT HE MIGHT SOMEDAY BE REQUIRED
TO REPAY THE COSTS OF THESE SERVICES IN NO WAY AFFECTS HIS ELIGIBILITY
TO OBTAIN COUNSEL.  THE OREGON STATUTE IS CAREFULLY DESIGNED TO INSURE
THAT ONLY THOSE WHO ACTUALLY BECOME CAPABLE OF REPAYING THE STATE WILL
EVER BE OBLIGED TO DO SO.  /12/  THOSE WHO REMAIN INDTGENT OR FOR WHOM
REPAYMENT WOULD WORK "MANIFEST HARDSHIP" ARE FOREVER EXEMPT FROM ANY
OBLIGATION TO REPAY.     WE LIVE IN A SOCIETY WHERE THE DISTRIBUTION OF
LEGAL ASSISTANCE, LIKE THE DISTRIBUTION OF ALL GOODS AND SERVICES, IS
GENERALLY REGULATED BY THE DYNAMICS OF PRIVATE ENTERPRISE.  A DEFENDANT
IN A CRIMINAL CASE WHO IS JUST ABOVE THE LINE SEPARATING THE INDIGENT
FROM THE NONINDIGENT MUST BORROW MONEY, SELL OFF HIS MEAGER ASSETS, OR
CALL UPON HIS FAMILY OR FRIENDS IN ORDER TO HIRE A LAWYER.  WE CANNOT
SAY THAT THE CONSTITUTION REQUIRES THAT THOSE ONLY SLIGHTLY POORER MUST
REMAIN FOREVER IMMUNE FROM ANY OBLIGATION TO SHOULDER THE EXPENSES OF
THEIR LEGAL DEFENSE, EVEN WHEN THEY ARE ABLE TO PAY WITHOUT HARDSHIP. 

THIS CASE IS FUNDAMENTALLY DIFFERENT FROM OUR DECISIONS RELIED ON BY
THE PETITIONER WHICH HAVE INVALIDATED STATE AND FEDERAL LAWS THAT
PLACED A PENALTY ON THE EXERCISE OF A CONSTITUTIONAL RIGHT.  SEE
UNIFORMED SANITATION MEN V. SANITATION COMM'R, 392 U.S. 280; GARDNER V.
BRODERICK, 392 U.S. 273; UNITED STATES V. JACKSON, 390 U.S. 570. 
UNLIKE THE STATUTES FOUND INVALID IN THOSE CASES, WHERE THE PROVISIONS
"HAD NO OTHER PURPOSE OR EFFECT THAN TO CHILL THE ASSERTION OF
CONSTITUTIONAL RIGHTS BY PENALIZING THOSE WHO CHOOSE TO EXERCISE THEM,"
UNITED STATES V. JACKSON, SUPRA, AT 581, OREGON'S RECOUPMENT STATUTE
MERELY PROVIDES THAT A CONVICTED PERSON WHO LATER BECOMES ABLE TO PAY
FOR HIS COUNSEL MAY BE REQUIRED TO DO SO.  OREGON'S LEGISLATION IS
TAILORED TO IMPOSE AN OBLIGATION ONLY UPON THOSE WITH A FORESEEABLE
ABILITY TO MEET IT, AND TO ENFORCE THAT OBLIGATION ONLY AGAINST THOSE
WHO ACTUALLY BECOME ABLE TO MEET IT WITHOUT HARDSHIP. 

THE JUDGMENT OF THE COURT OF APPEALS OF OREGON IS AFFIRMED. 

      IT IS SO ORDERED. 

/1/  OTHER CHARGES CONTAINED IN THE INFORMATION AGAINST FULLER WERE
DISMISSED WHEN HIS GUILTY PLEA WAS ACCEPTED. 

/2/  IN ADDITION, FULLER ARGUED THAT THE SECTION OF THE OREGON
RECOUPMENT STATUTE AUTHORIZING AN OBLIGATION TO REPAY "EXPENSES
SPECIALLY INCURRED BY THE STATE IN PROSECUTING THE DEFENDANT," ORE. 
REV.  STAT. 161.665(2), SEE N. 5, INFRA, WAS NOT INTENDED BY THE STATE
LEGISLATURE TO INCLUDE COUNSEL FEES.  THIS ISSUE OF STATE LAW WAS
RESOLVED AGAINST THE PETITIONER IN THE STATE COURT, AND PROPERLY IS NOT
RAISED HERE.  MURDOCK V. CITY OF MEMPHIS, 20 WALL.  590. 

/3/  COURTS OF SOME OTHER STATES, IN REVIEWING LEGISLATION SIMILAR
TO THAT IN QUESTION HERE, HAVE EXPRESSED VIEWS ON THE CONSTITUTIONALITY
OF THE RECOUPMENT OF DEFENSE COSTS INCONSISTENT WITH THE DECISION OF
THE OREGON COURT OF APPEALS IN THIS CASE.  IN RE ALLEN, 71 CAL.2D 388,
455 P.2D 143; OPINION OF THE JUSTICES, 109 N.H. 508, 256 A.2D 500;
STATE EX REL. BRUNDAGE V. EIDE, 83 WASH.2D 676, 521 P.2D 706.  CF.
STRANGE V. JAMES, 323 F.SUPP.  1230 (KAN.), AFF'D ON OTHER GROUNDS, 407
U.S. 128.  SEE GENERALLY AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS
FOR CRIMINAL JUSTICE, PROVIDING DEFENSE SERVICES 6.4, PP. 58 - 59
(APPROVED DRAFT 1968); COMMENT, REIMBURSEMENT OF DEFENSE COSTS AS A
CONDITION OF PROBATION FOR INDIGENTS, 67 MICH.L.REV.  1404 (1969;
COMMENT, CHARGING COSTS OF PROSECUTION TO THE DEFENDANT, 59 GEO.L.J.
991 (1971). 

/4/  ORE.  REV.  STAT. 135.050(3)A) DIRECTS THAT COUNSEL BE
APPOINTED FOR AN INDIGENT DEFENDANT WHEN HE IS "(CHARGED WITH A
CRIME." 

/5/  ORE.  REV.  STAT. 161.665 PROVIDES: 

"(1) THE COURT MAY REQUIRE A CONVICTED DEFENDANT TO PAY COSTS. 

"(2) COSTS SHALL BE LIMITED TO EXPENSES SPECIALLY INCURRED BY THE
STATE IN PROSECUTING THE DEFENDANT.  THEY CANNOT INCLUDE EXPENSES
INHERENT IN PROVIDING A CONSTITUTIONALLY GUARANTEED JURY TRIAL OR
EXPENDITURES IN CONNECTION WITH THE MAINTENANCE AND OPERATION OF
GOVERNMENT AGENCIES THAT MUST BE MADE BY THE PUBLIC IRRESPECTIVE OF
SPECIFIC VIOLATIONS OF LAW. 

"(3) THE COURT SHALL NOT SENTENCE A DEFENDANT TO PAY COSTS UNLESS
THE DEFENDANT IS OR WILL BE ABLE TO PAY THEM.  IN DETERMINING THE
AMOUNT AND METHOD OF PAYMENT OF COSTS, THE COURT SHALL TAKE ACCOUNT OF
THE FINANCIAL RESOURCES OF THE DEFENDANT AND THE NATURE OF THE BURDEN
THAT PAYMENT OF COSTS WILL IMPOSE. 

"(4) A DEFENDANT WHO HAS BEEN SENTENCED TO PAY COSTS AND WHO IS NOT
IN CONTUMACIOUS DEFAULT IN THE PAYMENT THEREOF MAY AT ANY TIME PETITION
THE COURT WHICH SENTENCED HIM FOR REMISSION OF THE PAYMENT OF COSTS OR
OF ANY UNPAID PORTION THEREOF.  IF IT APPEARS TO THE SATISFACTION OF
THE COURT THAT PAYMENT OF THE AMOUNT DUE WILL IMPOSE MANIFEST HARDSHIP
ON THE DEFENDANT OR HIS IMMEDIATE FAMILY, THE COURT MAY REMIT ALL OR
PART OF THE AMOUNT DUE IN COSTS, OR MODIFY THE METHOD OF PAYMENT UNDER
ORS 161.675."  ORE.  REV. STAT. 161.675 PROVIDES: 

"(1) WHEN A DEFENDANT IS SENTENCED TO PAY A FINE OR COSTS, THE COURT
MAY GRANT PERMISSION FOR PAYMENT TO BE MADE WITHIN A SPECIFIED PERIOD
OF TIME OR IN SPECIFIED INSTALMENTS.  IF NO SUCH PERMISSION IS INCLUDED
IN THE SENTENCE THE FINE SHALL BE PAYABLE FORTHWITH. 

"(2) WHEN A DEFENDANT SENTENCED TO PAY A FINE OR COSTS IS ALSO
PLACED ON PROBATION OR IMPOSITION OR EXECUTION OF SENTENCE IS
SUSPENDED, THE COURT MAY MAKE PAYMENT OF THE FINE OR COSTS A CONDITION
OF PROBATION OR SUSPENSION OF SENTENCE."  ORE.  REV. STAT. 161.685
PROVIDES: 

"(1) WHEN A DEFENDANT SENTENCED TO PAY A FINE DEFAULTS IN THE
PAYMENT THEREOF OR OF ANY INSTALMENT, THE COURT ON MOTION OF THE
DISTRICT ATTORNEY OR UPON ITS OWN MOTION MAY REQUIRE HIM TO SHOW CAUSE
WHY HIS DEFAULT SHOULD NOT BE TREATED AS CONTEMPT OF COURT, AND MAY
ISSUE A SHOW CAUSE CITATION OR A WARRANT OF ARREST FOR HIS APPEARANCE. 

"(2) UNLESS THE DEFENDANT SHOWS THAT HIS DEFAULT WAS NOT
ATTRIBUTABLE TO AN INTENTIONAL REFUSAL TO OBEY THE ORDER OF THE COURT
OR TO A FAILURE ON HIS PART TO MAKE A GOOD FAITH EFFORT TO MAKE THE
PAYMENT, THE COURT MAY FIND THAT HIS DEFAULT CONSTITUTES CONTEMPT AND
MAY ORDER HIM COMMITTED UNTIL THE FINE, OR A SPECIFIED PART THEREOF, IS
PAID. 

"(3) WHEN A FINE IS IMPOSED ON A CORPORATION OR UNINCORPORATED
ASSOCIATION, IT IS THE DUTY OF THE PERSON AUTHORIZED TO MAKE
DISBURSEMENT FROM THE ASSETS OF THE CORPORATION OR ASSOCIATION TO PAY
THE FINE FROM THOSE ASSETS, AND HIS FAILURE TO DO SO MAY BE HELD TO BE
CONTEMPT UNLESS HE MAKES THE SHOWING REQUIRED IN SUBSECTION (2) OF THIS

"(4) THE TERM OF IMPRISONMENT FOR CONTEMPT FOR NONPAYMENT OF FINES
SHALL BE SET FORTH IN THE COMMITMENT ORDER, AND SHALL NOT EXCEED ONE
DAY FOR EACH $25 OF THE FINE, 30 DAYS IF THE FINE WAS IMPOSED UPON
CONVICTION OF A VIOLATION OR MISDEMEANOR, OR ONE YEAR IN ANY OTHER
CASE, WHICHEVER IS THE SHORTER PERIOD.  A PERSON COMMITTED FOR
NONPAYMENT OF A FINE SHALL BE GIVEN CREDIT TOWARD PAYMENT FOR EACH DAY
OF IMPRISONMENT AT THE RATE SPECIFIED IN THE COMMITMENT ORDER. 

"(5) IF IT APPEARS TO THE SATISFACTION OF THE COURT THAT THE DEFAULT
IN THE PAYMENT OF A FINE IS NOT CONTEMPT, THE COURT MAY ENTER AN ORDER
ALLOWING THE DEFENDANT ADDITIONAL TIME FOR PAYMENT, REDUCING THE AMOUNT
THEREOF OR OF EACH INSTALMENT OR REVOKING THE FINE OR THE UNPAID
PORTION THEREOF IN WHOLE OR IN PART. 

"(6) A DEFAULT IN THE PAYMENT OF A FINE OR COSTS OR ANY INSTALMENT
THEREOF MAY BE COLLECTED BY ANY MEANS AUTHORIZED BY LAW FOR THE
ENFORCEMENT OF A JUDGMENT.  THE LEVY OF EXECUTION FOR THE COLLECTION OF
A FINE SHALL NOT DISCHARGE A DEFENDANT COMMITTED TO IMPRISONMENT FOR
CONTEMPT UNTIL THE AMOUNT OF THE FINE HAS ACTUALLY BEEN COLLECTED." 

/6/  SEE N. 2, SUPRA. 

/7/  THE RECOUPMENT PROVISIONS OF OTHER STATES ARE SET OUT IN THE
COURT'S OPINION IN JAMES V. STRANGE, 407 U.S. 128, 132 - 133, AND N.
8.  THE FEDERAL REIMBURSEMENT PROVISION IS FOUND IN 18 U.S.C. 3006A
(F). 

/8/  THE KANSAS STATUTE ALLOWED ONLY ONE EXCEPTION FROM THE BLANKET
DENIAL OF EXEMPTIONS USUALLY AVAILABLE TO JUDGMENT DEBTORS, PERMITTING
DEBTORS UPON WHOM JUDGMENTS FOR COSTS OF LEGAL DEFENSE WERE EXECUTED TO
MAINTAIN THEIR HOMESTEADS INTACT.  407 U.S., AT 135. 

/9/  THE DISSENTING OPINION TODAY ARGUES THAT FULLER'S CONDITIONAL
OBLIGATION TO REPAY CONSTITUTES AN IMPERMISSIBLE DISCRIMINATION BASED
ON WEALTH IN VIOLATION OF THE EQUAL PROTECTION CLAUSE.  MORE PRECISELY,
THE ARGUMENT IS MADE THAT, UNLIKE A NONINDIGENT DEFENDANT, AN INDIGENT
DEFENDANT'S "FAILURE TO PAY HIS DEBT CAN RESULT IN HIS BEING SENT TO
PRISON."  POST, AT 60.  THIS CONTENTION WAS NOT MADE IN THE
PETITIONER'S BRIEF OR ORAL ARGUMENT BEFORE THIS COURT, AND APPEARS NOT
TO HAVE BEEN RAISED IN THE OREGON COURTS.  IT IS, THEREFORE, NOT
PROPERLY BEFORE US.  SEE N. 11, INFRA.  FURTHERMORE, INSOFAR AS THE
DISSENT DEALS WITH ART. 1, 19, OF THE OREGON CONSTITUTION WHICH FORBIDS
"IMPRISONMENT FOR DEBT," THE DISSENT PURPORTS TO RESOLVE QUESTIONS OF
STATE LAW THAT THIS COURT DOES NOT HAVE POWER TO DECIDE.  MURDOCK V.
CITY OF MEMPHIS, 20 WALL.  590. 

MORE FUNDAMENTALLY, THE IMPOSITION OF A REPAYMENT REQUIREMENT UPON
THOSE FOR WHOM COUNSEL WAS APPOINTED BUT NOT UPON THOSE WHO HIRED THEIR
OWN COUNSEL SIMPLY DOES NOT CONSTITUTE INVIDIOUS DISCRIMINATION AGAINST
THE POOR.  INDEED, THE ENTIRE THRUST OF OREGON'S APPOINTMENT-OF-COUNSEL
PLAN IS TO INSURE AN INDIGENT EFFECTIVE REPRESENTATION OF COUNSEL AT
ALL SIGNIFICANT STEPS OF THE CRIMINAL PROCESS.  THOSE WHO ARE INDIGENT
MAY BE CONDITIONALLY REQUIRED TO REPAY BECAUSE ONLY THEY, IN CONTRAST
TO NONINDIGENTS, WERE PROVIDED COUNSEL BY THE STATE IN THE FIRST
PLACE.  MOREOVER, THE FACT THAT A CONDITIONAL REQUIREMENT TO REPAY MAY
BE MADE A CONDITION OF PROBATION DOES NOT MEAN THAT THE STATE "IMPOSES)
UNDULY HARSH OR DISCRIMINATORY TERMS MERELY BECAUSE THE OBLIGATION IS
TO THE PUBLIC TREASURY RATHER THAN TO A PRIVATE CREDITOR."  JAMES V.
STRANGE, 407 U.S., AT 138.  UNDER OREGON'S RECOUPMENT STATUTE
REVOCATION OF PROBATION IS NOT A COLLECTION DEVICE USED BY THE STATE TO
ENFORCE DEBTS TO IT, BUT IS A SANCTION IMPOSED FOR "AN INTENTIONAL
REFUSAL TO OBEY THE ORDER OF THE COURT," ORE.  REV.  STAT. 161.685(2). 
SINCE AN ORDER TO REPAY CAN BE ENTERED ONLY WHEN A CONVICTED PERSON IS
FINANCIALLY ABLE BUT UNWILLING TO REIMBURSE THE STATE, THE
CONSTITUTIONAL INVALIDITY FOUND IN JAMES V. STRANGE SIMPLY DOES NOT
EXIST. 

/10/  THE PETITIONER ALSO CLAIMS IN HIS BRIEF THAT A REQUIREMENT TO
REPAY LEGAL DEFENSE EXPENSES HAS BEEN IMPOSED ONLY ON CONVICTED
DEFENDANTS PLACED ON PROBATION, AND "HAS NOT BEEN APPLIED TO THOSE
CONVICTED INDIGENTS WHO WERE SENTENCED TO TERMS OF IMPRISONMENT." 
WHILE THIS DISTINCTION MIGHT WELL BE JUSTIFIED ON THE GROUND THAT THOSE
RELEASED ON PROBATION ARE MORE LIKELY THAN THOSE INCARCERATED TO HAVE
THE ABILITY TO EARN MONEY TO REPAY, WE NEED NOT REACH THIS ISSUE SINCE
THE STATUTE ITSELF MAKES NO SUCH DISTINCTION, AND THE PETITIONER HAS
NOT DEMONSTRATED ON THIS RECORD THAT THE STATE HAS ENGAGED IN ANY
PATTERN OR PRACTICE EMBRACING IT. 

/11/ THE PETITIONER'S BRIEF ALSO RAISES, WITHOUT EXTENDED
DISCUSSION, VARIOUS DUE PROCESS CLAIMS THAT IMPOSITION OF THE
CONDITIONAL OBLIGATION TO REPAY WAS MADE WITHOUT SUFFICIENT NOTICE OR
HEARING.  SINCE THESE CONTENTIONS APPEAR NOT TO HAVE BEEN RAISED IN THE
STATE COURTS, AND WERE NOT DISCUSSED BY THE OREGON COURT OF APPEALS, WE
NEED NOT REACH THEM HERE.  "(THIS COURT HAS STATED THAT WHEN . . . THE
HIGHEST STATE COURT HAS FAILED TO PASS UPON A FEDERAL QUESTION, IT WILL
BE ASSUMED THAT THE OMISSION WAS DUE TO WANT OF PROPER PRESENTATION IN
THE STATE COURTS, UNLESS THE AGGRIEVED PARTY IN THIS COURT CAN
AFFIRMATIVELY SHOW THE CONTRARY."  STREET V. NEW YORK, 394 U.S. 576,
582.  WE NOTE IN PASSING, HOWEVER, THAT THE RECOUPMENT STATUTES,
INCLUDING A SCHEDULE OF FEES, WERE PUBLISHED IN THE OREGON REVISED
STATUTES AT THE TIME OF THE PETITIONER'S PLEA, AND FURTHER THAT BOTH
OREGON'S JUDGMENT EXECUTION STATUTE AND ITS PAROLE REVOCATION
PROCEDURES PROVIDE FOR A HEARING BEFORE EXECUTION CAN BE LEVIED OR
PROBATION REVOKED. 

/12/  THE LIMITATION OF THE OBLIGATION TO REPAY TO THOSE WHO ARE
FOUND ABLE TO DO SO ALSO DISPOSES OF THE ARGUMENT, PRESENTED BY AN
AMICUS CURIAE, THAT REVOCATION OF PROBATION FOR FAILURE TO PAY
CONSTITUTES AN IMPERMISSIBLE DISCRIMINATION BASED ON WEALTH.  SEE TATE
V. SHORT, 401 U.S. 395; WILLIAMS V. ILLINOIS, 399 U.S. 235.  AS THE
COURT STATED IN TATE V. SHORT:  "WE EMPHASIZE THAT OUR HOLDING TODAY
DOES NOT SUGGEST ANY CONSTITUTIONAL INFIRMITY IN IMPRISONMENT OF A
DEFENDANT WITH THE MEANS TO PAY A FINE WHO REFUSES OR NEGLECTS TO DO
SO."  401 U.S., AT 400. 

SIMILARLY, THE WORDING OF OREGON'S STATUTE MAKES IT CLEAR THAT A
DETERMINATION THAT AN INDIGENT "WILL BE ABLE" TO MAKE SUBSEQUENT
REPAYMENT IS A CONDITION NECESSARY FOR THE INITIAL IMPOSITION OF THE
OBLIGATION TO MAKE REPAYMENT, BUT IS NOT ITSELF A CONDITION FOR
GRANTING PROBATION, OR EVEN A FACTOR TO BE CONSIDERED IN DETERMINING
WHETHER PROBATION SHOULD BE GRANTED. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE JUDGMENT. 

THE PETITIONER IN THIS CASE, CHARGED WITH A FELONY, RECEIVED COURT
APPOINTED COUNSEL, WHICH IS AVAILABLE IN OREGON TO A DEFENDANT WHO
EXECUTES A STATEMENT THAT HE IS UNABLE TO OBTAIN COUNSEL, WHEN IT
APPEARS TO THE COURT THAT THE DEFENDANT IS WITHOUT MEANS.  ORE.  REV.
STAT. 135.050(1)(C), (D) (1973).  PETITIONER WAS CONVICTED, AND
SENTENCED TO FIVE YEARS' PROBATION.  ONE OF THE CONDITIONS OF PROBATION
WAS THAT PETITIONER REIMBURSE THE COUNTY FOR THE COST OF HIS APPOINTED
ATTORNEY'S FEES AND FOR THE EXPENSES OF A DEFENSE INVESTIGATOR.  /1/
THESE COSTS WERE ASSESSED PURSUANT TO THE OREGON RECOUPMENT STATUTE,
161.665 - 161.685, WHICH AUTHORIZES THE SENTENCING COURT TO REQUIRE A
CONVICTED DEFENDANT TO PAY CERTAIN COSTS /2/  AND TO CONDITION
PROBATION ON SUCH PAYMENT.     ALTHOUGH A DEFENDANT MIGHT HAVE BEEN
INDIGENT AT THE TIME OF TRIAL, THE OREGON STATUTORY SCHEME RECOGNIZES
THAT AT SOME POINT AFTER TRIAL A DEFENDANT MAY ESCAPE FROM INDIGENCY. 
AS NOTED, THE RECOUPMENT STATUTE THUS ALLOWS THE COURT TO REQUIRE A
CONVICTED DEFENDANT TO PAY COSTS.  161.665(1).  PAYMENT OF THE COSTS
MAY BE MADE A CONDITION OF PROBATION.  161.675(2).  BUT IT FORBIDS THE
COURT TO IMPOSE SUCH A REQUIREMENT AT THE TIME OF SENTENCING UNLESS THE
DEFENDANT AT THAT TIME "IS OR WILL BE ABLE TO" PAY THOSE COSTS AND
REQUIRES THE COURT TO CONSIDER THE "NATURE OF THE BURDEN THAT PAYMENT
OF COSTS WILL IMPOSE" ON THE DEFENDANT.  161.665(3).  UNDER THE
STATUTE, A COURT WHICH HAS SENTENCED A DEFENDANT TO PAY COSTS MAY REMIT
THE PAYMENT OF THE AMOUNT DUE, OR MODIFY THE METHOD OF PAYMENT, IF IT
APPEARS THAT THE PAYMENT WILL IMPOSE MANIFEST HARDSHIP ON THE DEFENDANT
OR HIS IMMEDIATE FAMILY.  161.665(4). 

THE COURT OF APPEALS OF OREGON CONSTRUED THE STATUTORY SCHEME IN
THIS CASE TO LIMIT SHARPLY THE DISCRETION OF THE TRIAL COURT TO REQUIRE
THE REPAYMENT OF COSTS.  12 ORE.APP.  152, 504 P.2D 1393.  AS THE COURT
INTERPRETED THE STATUTE, A DEFENDANT CAN BE REQUIRED TO REPAY APPOINTED
COUNSEL'S FEE "ONLY IF AND WHEN HE IS NO LONGER INDIGENT."  ID., AT
159, 504 P.2D, AT 1397.  WHILE PAYMENT OF COSTS MAY BE MADE A CONDITION
OF PROBATION, PROBATION CAN BE REVOKED ONLY IF THE COURT SPECIFICALLY
FINDS THAT "(1) THE DEFENDANT HAS THE PRESENT FINANCIAL ABILITY TO
REPAY THE COSTS INVOLVED (EITHER ALL OR BY INSTALLMENTS) WITHOUT
HARDSHIP TO HIMSELF OR HIS FAMILY . . . AND (2) THE DEFENDANT'S FAILURE
TO REPAY . . . IS AN INTENTIONAL, CONTUMACIOUS DEFAULT . . ."  IBID.
REVOCATION IS IMPROPER IF BOTH OF THESE ELEMENTS ARE NOT ESTABLISHED. 

THE NARROW CONSTRUCTION OF THE OREGON RECOUPMENT STATUTE IN THIS
CASE DISPOSES OF PETITIONER'S CLAIM THAT THE STATUTE "CHILLS" THE
EXERCISE OF THE RIGHT TO COUNSEL.  REPAYMENT CANNOT BE REQUIRED UNTIL A
DEFENDANT IS ABLE TO PAY THE COSTS, AND PROBATION CANNOT BE REVOKED FOR
NONPAYMENT UNLESS THERE IS A SPECIFIC FINDING THAT PAYMENT WOULD NOT
WORK HARDSHIP ON A DEFENDANT OR HIS FAMILY.  UNDER THESE CIRCUMSTANCES,
THE "CHILL" ON THE EXERCISE OF THE RIGHT TO COUNSEL IS NO GREATER THAN
THAT IMPOSED A NONINDIGENT DEFENDANT WITHOUT GREAT SUMS OF MONEY.  EVEN
THOUGH SUCH A DEFENDANT CAN AFFORD COUNSEL, HE MIGHT WELL BE MORE READY
TO ACCEPT FREE APPOINTED COUNSEL THAN TO RETAIN COUNSEL HIMSELF.  YET A
STATE IS NOT THEREFORE REQUIRED BY THE FEDERAL CONSTITUTION TO PROVIDE
APPOINTED COUNSEL FOR NONINDIGENT DEFENDANTS.  /3/ 

NOR IS IT A DENIAL OF EQUAL PROTECTION TO ASSESS COSTS ONLY AGAINST
THOSE DEFENDANTS WHO ARE CONVICTED.  THE ACQUITTED DEFENDANT HAS
PREVAILED AT TRIAL IN DEFENDING AGAINST THE CHARGE BROUGHT BY THE
STATE.  IT IS RATIONAL THAT THE STATE NOT RECOVER COSTS FROM SUCH A
DEFENDANT WHILE RECOVERING COSTS FROM A DEFENDANT WHO HAS BEEN FOUND
GUILTY BEYOND A REASONABLE DOUBT OF THE CRIME THAT NECESSITATED THE
TRIAL.  SIMILARLY, TOO, IT IS RATIONAL NOT TO ASSESS DEFENDANTS AGAINST
WHOM CHARGES HAVE BEEN DISMISSED, SINCE THE STATE HAS NOT PROVED ITS
CHARGES AGAINST THEM.  /4/ 

MY BROTHER MARSHALL ARGUES THAT THE OREGON RECOUPMENT STATUTE DENIES
INDIGENT DEFENDANTS EQUAL PROTECTION OF THE LAWS IN THAT IT
CONTEMPLATES REVOCATION OF PROBATION AND SUBSEQUENT IMPRISONMENT FOR
NONPAYMENT OF COUNSEL FEES.  HE NOTES THAT ART. 1, 19, OF THE OREGON
CONSTITUTION PROVIDES THAT "(THERE SHALL BE NO IMPRISONMENT FOR DEBT,
EXCEPT IN CASE OF FRAUD OR ABSCONDING DEBTORS," AND ARGUES THAT A
DEFENDANT WHO FAILED TO PAY A BILL TO HIS RETAINED COUNSEL COULD NOT BE
IMPRISONED. 

I DO NOT BELIEVE THAT THIS CLAIM WAS PROPERLY PRESERVED BELOW OR IS
PROPERLY BEFORE THIS COURT.  PETITIONER DID ARGUE THAT THE POSSIBILITY
OF IMPRISONMENT FOR DEBTS OWED THE STATE UNDER THE RECOUPMENT STATUTE
DENIED HIM EQUAL PROTECTION, BUT THERE IS NO INDICATION THAT THE OREGON
COURT OF APPEALS WAS ALERTED TO THE PROBLEMS POSED BY ART. 1, 19. 
PETITIONER DID NOT EVEN MENTION THE SECTION IN HIS BRIEF BEFORE THIS
COURT.  /5/  YET THERE IS, AS MY BROTHER MARSHALL NOTES, AN APPARENT
INCONSISTENCY BETWEEN ART. 1, 19, AND THE RECOUPMENT STATUTE.  IT MAY
BE, THEREFORE, THAT THE OREGON COURTS WOULD STRIKE DOWN THE STATUTE AS
BEING INCONSISTENT WITH THE CONSTITUTIONAL PROVISION IF THEY FACED THE
ISSUE.  BUT ON THE RECORD OF THIS CASE, THEY HAVE NOT MADE THAT
DETERMINATION OF STATE LAW.  NOR CAN WE ASSUME THAT THE OREGON COURTS
HAVE IN FACT IMPLICITLY REJECTED THE APPLICABILITY OF ART. 1, 19, IN
UPHOLDING THE RECOUPMENT STATUTE IN THIS CASE; THERE IS NO EVIDENCE
THAT AN OREGON COURT MUST, OR EVEN MAY, SUA SPONTE, CONSIDER ARGUMENTS
NOT ARGUED OR BRIEFED TO IT. 

WHILE THIS COURT MAY AT TIMES ADOPT THEORIES DIFFERENT FROM THOSE
URGED BY COUNSEL OR URGED BEFORE THE STATE COURTS WHEN RESOLVING A
PARTICULAR QUESTION, SEE DEWEY V. DES MOINES, 173 U.S. 193, 198; CF.
STANLEY V. ILLINOIS, 405 U.S. 645, 658 N. 10, IT WILL NOT PASS ON
QUESTIONS SUBSTANTIVELY DIFFERENT FROM THOSE PRESENTED TO THE STATE
COURTS, EVEN WHEN THE FEDERAL CLAIM IS NOMINALLY BASED ON THE SAME
FEDERAL CONSTITUTIONAL CLAUSE RELIED ON BEFORE THE STATE COURTS, SEE
WILSON V. COOK, 327 U.S. 474, 483 - 484.  MORE CRUCIALLY, THE FEDERAL
EQUAL PROTECTION CLAUSE COULD BE VIOLATED IN THIS CASE ONLY IF A
PARTICULAR CONSTRUCTION OF STATE LAW WERE TO BE ADOPTED BY THE STATE
COURTS.  THAT CONSTRUCTION WAS NOT ADOPTED ON THE RECORD BEFORE US, AND
WE CANNOT SIMPLY ASSUME THAT THE STATE COURT WOULD SO RULE AND STRIKE
DOWN THE STATE STATUTE ON THE BASIS OF THAT ASSUMPTION. 

FOR THE REASONS, I DO NOT REACH THE MERITS OF THE EQUAL PROTECTION
QUESTION PRESENTED BY THE DISSENT.  AND SINCE THAT QUESTION IS NOT
PROPERLY BEFORE US, I BELIEVE THAT THE COURT ERRS IN RENDERING AN
ADVISORY OPINION ON THE MERITS, AN ERROR COMPOUNDED BY THE ABSENCE OF
ANY RECORD BELOW AMPLIFYING ON THOSE MERITS.  THE COURT NOT ONLY
RENDERS AN ADVISORY OPINION; IT RENDERS IT IN A VACUUM.  THE PROPER
CONSTRUCTION OF STATE LAW, AND THE PROPER RESOLUTION OF THE DEPENDENT
EQUAL PROTECTION CLAIM, WOULD PROPERLY BE RAISED BY ANOTHER LITIGANT OR
BY PETITIONER BY WAY OF COLLATERAL ATTACK. 

IN VIEW OF THE MANNER IN WHICH THE APPLICATION OF THE RECOUPMENT
STATUTE HAS BEEN STRINGENTLY NARROWED BY THE COURT OF APPEALS OF OREGON
AND BECAUSE THE CLAIM URGED BY THE DISSENT IS NOT PROPERLY BEFORE THE
COURT, I CONCUR IN THE JUDGMENT OF THE COURT. 

/1/  IN THIS CASE, THE PETITIONER'S FATHER APPARENTLY PAID THE
COSTS, AND PETITIONER WILL REPAY HIS FATHER. 

/2/  THE COSTS WHICH CAN BE ASSESSED ARE LIMITED BY STATUTE TO THOSE
"SPECIALLY INCURRED" BY THE STATE IN PROSECUTING A DEFENDANT.  ORE. 
REV. STAT. 161.655(2).  THE OREGON COURT OF APPEALS FOUND THAT MOST
COSTS ON THE PROSECUTION SIDE OF THE CASE COULD NOT BE CHARGED TO A
DEFENDANT, INCLUDING POLICE INVESTIGATIONS, DISTRICT ATTORNEYS'
SALARIES, AND SHERIFFS'  SALARIES.  12 ORE.APP.  152, 157, 504 P.2D
1393, 1396.  ALSO, JURY FEES AND THE COSTS OF SUMMONING JURORS CANNOT
BE CHARGED TO THE DEFENDANT.  IBID.; SEE ORE.  REV.  STAT. 161.665(2). 
THE COSTS WHICH CAN BE CHARGED APPEAR LIMITED TO THOSE INCURRED FOR A
DEFENDANT'S BENEFIT, SUCH AS DEFENSE COUNSEL, DEFENSE INVESTIGATORS,
AND SO ON, WHICH WOULD BE BORNE BY A NONINDIGENT DEFENDANT IN A
CRIMINAL TRIAL.  IN ADDITION, THE OREGON STATUTORY SCHEME PLACES LIMITS
ON THE FEES WHICH AN APPOINTED COUNSEL CAN RECEIVE, EXCEPT IN
"EXTRAORDINARY CIRCUMSTANCES," THUS LIMITING THE EVENTUAL
RESPONSIBILITY OF A DEFENDANT UNDER THE RECOUPMENT STATUTE.  ORE.  REV.
STAT. 135.055. 

/3/  INDEED, WHILE A DEFENDANT WHO IS NOT INDIGENT AT THE TIME OF
TRIAL MUST PAY COUNSEL FEES EVEN IF ACQUITTED, THE OREGON RECOUPMENT
STATUTES DO NOT PERMIT THE ASSESSMENT OF COSTS AGAINST A DEFENDANT WHO
IS NOT CONVICTED. 

/4/  PETITIONER, RELYING ON JAMES V. STRANGE, 407 U.S. 128, ALSO
CLAIMS THAT THE RECOUPMENT STATUTE IS IMPERMISSIBLE BECAUSE IT FAILS TO
PROVIDE THE SAME EXEMPTIONS FROM EXECUTION PROVIDED OTHER OREGON
DEBTORS.  THE OREGON COURT OF APPEALS IN THIS CASE HELD THAT ALL
EXEMPTIONS PROVIDED OTHER DEBTORS ALSO APPLY UNDER THE RECOUPMENT
STATUTE.  12 ORE.APP., AT 159, 504 P.2D, AT 1397.  PETITIONER'S CLAIM
THAT THE STATUTE DEPRIVES HIM OF DUE PROCESS WAS NOT RAISED BELOW AND
HENCE IS NOT BEFORE THIS COURT. 

/5/  THE OPINION OF THE OREGON COURT OF APPEALS, INCLUDING THE
DISSENT, DOES NOT MENTION ART. 1, 19.  PETITIONER'S EQUAL PROTECTION
ARGUMENT HERE WAS BASED ON CLAIMS THAT THE RECOUPMENT STATUTE DID NOT
PROVIDE THE SAME STATUTORY EXEMPTIONS GRANTED OTHER OREGON DEBTORS,
DISCRIMINATED AGAINST CONVICTED DEFENDANTS AS OPPOSED TO ACQUITTED
DEFENDANTS AND DEFENDANTS WHO HAD CHARGES DISMISSED, AND FAVORED
DEFENDANTS WHO WERE SENTENCED TO THE PENITENTIARY.  THE ART. 1, 19,
PROBLEM WAS BROUGHT TO THE ATTENTION OF THE COURT ONLY BY THE AMICUS
CURIAE OF THE NATIONAL LEGAL AID AND DEFENDER ASSOCIATION. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

IN MY VIEW, THE OREGON RECOUPMENT STATUTE AT ISSUE IN THIS CASE
DISCRIMINATES AGAINST INDIGENT DEFENDANTS IN VIOLATION OF THE EQUAL
PROTECTION CLAUSE AND THE PRINCIPLES ESTABLISHED BY THIS COURT IN JAMES
V. STRANGE, 407 U.S. 128 (1972).  IN THAT CASE WE HELD UNCONSTITUTIONAL
UNDER THE EQUAL PROTECTION CLAUSE A KANSAS RECOUPMENT STATUTE BECAUSE
IT FAILED TO PROVIDE EQUAL TREATMENT BETWEEN INDIGENT DEFENDANTS AND
OTHER CIVIL JUDGMENT DEBTORS.  WE RELIED ON THE FACT THAT INDIGENT
DEFENDANTS WERE NOT ENTITLED TO THE PROTECTIVE EXEMPTIONS KANSAS HAD
ERECTED FOR OTHER CIVIL JUDGMENT DEBTORS. 

THE OREGON RECOUPMENT STATUTE AT ISSUE HERE SIMILARLY PROVIDES
UNEQUAL TREATMENT BETWEEN INDIGENT DEFENDANTS AND OTHER CIVIL JUDGMENT
DEBTORS.  THE MAJORITY OBFUSCATES THE ISSUE IN THIS CASE BY FOCUSING
SOLELY ON THE QUESTION WHETHER THE OREGON STATUTE AFFORDS AN INDIGENT
DEFENDANT THE SAME PROTECTIVE EXEMPTIONS PROVIDED OTHER CIVIL DEBTORS. 
TRUE, AS CONSTRUED BY THE OREGON COURT OF APPEALS, THE STATUTE DOES NOT
DISCRIMINATE IN THIS REGARD.  BUT THE TREATMENT IT AFFORDS INDIGENT
DEFENDANTS REMAINS UNEQUAL IN ANOTHER, EVEN MORE FUNDAMENTAL, RESPECT. 
THE IMPORTANT FACT WHICH THE MAJORITY IGNORES IS THAT UNDER OREGON LAW,
THE REPAYMENT OF THE INDIGENT DEFENDANT'S DEBT TO THE STATE CAN BE MADE
A CONDITION OF HIS PROBATION, AS IT WAS IN THIS CASE.  PETITIONER'S
FAILURE TO PAY HIS DEBT CAN RESULT IN HIS BEING SENT TO PRISON.  IN
THIS RESPECT THE INDIGENT DEFENDANT IN OREGON, LIKE THE INDIGENT
DEFENDANT IN JAMES V. STRANGE, IS TREATED QUITE DIFFERENTLY FROM OTHER
CIVIL JUDGMENT DEBTORS. 

PETITIONER'S "PREDICAMENT UNDER THIS STATUTE COMES INTO SHARPER
FOCUS WHEN COMPARED WITH THAT OF ONE WHO HAS HIRED COUNSEL IN HIS
DEFENSE."  407 U.S., AT 136.  ARTICLE 1, 19, OF THE OREGON CONSTITUTION
PROVIDES THAT "(THERE SHALL BE NO IMPRISONMENT FOR DEBT, EXCEPT IN CASE
OF FRAUD OR ABSCONDING DEBTORS."  HENCE, THE NONINDIGENT DEFENDANT IN A
CRIMINAL CASE IN OREGON WHO DOES NOT PAY HIS PRIVATELY RETAINED
COUNSEL, EVEN AFTER HE OBTAINS THE MEANS TO DO SO, CANNOT BE IMPRISONED
FOR SUCH FAILURE.  THE LAWYER IN THAT INSTANCE MUST ENFORCE HIS
JUDGMENT THROUGH THE NORMAL ROUTES AVAILABLE TO A CREDITOR--BY
ATTACHMENT, LIEN, GARNISHMENT, OR THE LIKE.  PETITIONER, ON THE OTHER
HAND, FACES FIVE YEARS BEHIND BARS IF HE FAILS TO PAY HIS "DEBT"
ARISING OUT OF THE APPOINTMENT OF COUNSEL. 

ARTICLE 1, 19 OF THE OREGON CONSTITUTION IS REPRESENTATIVE OF A
FUNDAMENTAL STATE POLICY CONSISTENT WITH THE MODERN REJECTION OF THE
PRACTICE OF IMPRISONMENT FOR DEBT AS UNNECESSARILY CRUEL AND
ESSENTIALLY COUNTERPRODUCTIVE.  SINCE OREGON CHOOSES NOT TO PROVIDE
IMPRISONMENT FOR DEBT FOR WELL-HEELED DEFENDANTS WHO DO NOT PAY THEIR
RETAINED COUNSEL, I DO NOT BELIEVE IT CAN, CONSISTENT WITH THE EQUAL
PROTECTION CLAUSE, IMPRISON AN INDIGENT DEFENDANT FOR HIS FAILURE TO
PAY THE COSTS OF HIS APPOINTED COUNSEL.  /1/  FOR AS WE HELD IN JAMES
V. STRANGE, A STATE MAY NOT "IMPOSE UNDULY HARSH OR DISCRIMINATORY
TERMS MERELY BECAUSE THE OBLIGATION IS TO THE PUBLIC TREASURY RATHER
THAN TO A PRIVATE CREDITOR."  407 U.S., AT 138. 

I WOULD THEREFORE HOLD THE OREGON RECOUPMENT STATUTE
UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION CLAUSE INSOFAR AS IT
PERMITS PAYMENT OF THE INDIGENT DEFENDANT'S DEBT TO BE MADE A CONDITION
OF HIS PROBATION.  /2/ 

I RESPECTFULLY DISSENT. 

/1/  THE MAJORITY ARGUES THAT WE HAVE RECOGNIZED NO CONSTITUTIONAL
INFIRMITY IN IMPRISONING A DEFENDANT WITH THE MEANS TO PAY A FINE WHO
REFUSES OR NEGLECTS TO DO SO.  ANTE, AT 53 N. 12.  THIS CASE DOES NOT
INVOLVE A FINE, HOWEVER, BUT RATHER ENFORCEMENT OF A DEBT FOR LEGAL
SERVICES.  THE FACT REMAINS THAT OREGON IMPRISONS A DEFENDANT WITH
APPOINTED COUNSEL WHO REFUSES OR NEGLECTS TO PAY HIS DEBT FOR LEGAL
SERVICES EVEN THOUGH ABLE TO PAY, BUT DOES NOT IMPRISON A DEFENDANT
WITH RETAINED COUNSEL IN THE SAME CIRCUMSTANCES. 

/2/  IN LIGHT OF MY DISPOSITION OF THE EQUAL PROTECTION CLAIM, I
HAVE NO OCCASION TO CONSIDER PETITIONER'S CONTENTION THAT SOME OTHER
DEFENDANT'S KNOWLEDGE THAT HE MAY HAVE TO REIMBURSE THE STATE FOR
PROVIDING HIM LEGAL REPRESENTATION MIGHT IMPEL HIM TO DECLINE THE
SERVICES OF AN APPOINTED ATTORNEY AND THUS CHILL HIS SIXTH AMENDMENT
RIGHT TO COUNSEL.  IN ANY EVENT, IN MY VIEW SUCH A CLAIM COULD MORE
APPROPRIATELY BE CONSIDERED BY THIS COURT IN THE CONTEXT OF AN ACTUAL
CASE INVOLVING A DEFENDANT WHO, UNLIKE PETITIONER, HAD REFUSED
APPOINTED COUNSEL AND CONTENDED THAT HIS REFUSAL WAS NOT A KNOWING AND
VOLUNTARY WAIVER OF HIS SIXTH AMENDMENT RIGHTS BECAUSE IT WAS BASED
UPON HIS FEAR OF BEARING THE BURDEN OF A DEBT FOR APPOINTED COUNSEL OR
UPON HIS FAILURE TO UNDERSTAND THE LIMITATIONS THE STATE IMPOSES ON
SUCH A DEBT.     J. MARVIN KUHN ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

W. MICHAEL GILLETTE, SOLICITOR GENERAL OF OREGON, ARGUED THE CAUSE
FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS LEE JOHNSON, ATTORNEY
GENERAL. 

RICHARD S. BUCKLEY, MARSHALL J. HARTMAN, AND WILBUR F. LITTLEFIELD
FILED A BRIEF FOR THE NATIONAL LEGAL AID AND DEFENDER ASSN. AS AMICUS
CURIAE URGING REVERSAL. 
..END :






















KOSYDAR V. NATIONAL CASH REGISTER CO., 417 U.S. 62 


       KOSYDAR, TAX COMMISSIONER OF OHIO V. NATIONAL CASH REGISTER

           CO.

        CERTIORARI TO THE SUPREME COURT OF OHIO

        NO. 73 - 629.  ARGUED MARCH 19, 1974--DECIDED MAY 20, 1974;

           35 OHIO ST.2D 166, 298 N.E.2D 559, REVERSED. 


    CASH REGISTERS AND OTHER MACHINES BUILT TO FOREIGN BUYERS'

  SPECIFICATIONS, WHICH WERE WAREHOUSED IN OHIO AWAITING SHIPMENT

  ABROAD, TITLE, POSSESSION, AND CONTROL REMAINING IN RESPONDENT

  MANUFACTURER, HELD NOT IMMUNE FROM STATE AD VALOREM TAX, SINCE

  THE PROSPECT OF EVENTUAL EXPORTATION, HOWEVER CERTAIN, DID NOT

  START THE PROCESS OF EXPORTATION AND MOVE THE MACHINES INTO THE

  EXPORT STREAM, WITHOUT WHICH THE IMMUNITY FROM LOCAL TAXATION

  CONFERRED BY THE IMPORT-EXPORT CLAUSE OF THE CONSTITUTION WAS NOT

AVAILABLE.  ECPRESA SIDERURGICA V. COUNTY OF MERCED, 337 U.S.

  154.  PP. 65 - 71. 

     STEWART, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE IMPORT-EXPORT CLAUSE OF THE CONSTITUTION, ART. I, 10, CL. 2,
PROVIDES: 

     "NO STATE SHALL, WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY

  IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE

  ABSOLUTELY NECESSARY FOR EXECUTING IT'S INSPECTION LAWS: AND THE

  NET PRODUCE OF ALL DUTIES AND IMPORTS, LAID BY ANY STATE ON

  IMPORTS OR EXPORTS, SHALL BE FOR THE USE OF THE TREASURY OF THE

  UNITED STATES; AND ALL SUCH LAWS SHALL BE SUBJECT TO THE REVISION

AND CONTROL OF THE CONGRESS." 

THE ISSUE FOR DECISION IN THIS CASE IS WHETHER THE ASSESSMENT OF AN AD
VALOREM PERSONAL PROPERTY TAX BY THE PETITIONER TAX COMMISSIONER OF
OHIO UPON CERTAIN PROPERTY OF THE RESPONDENT IS IN CONFLICT WITH THIS
CLAUSE. 

        I 

THE RESPONDENT NATIONAL CASH REGISTER CO. (NCR) HAS FOR MANY YEARS
ENGAGED IN THE MANUFACTURE OF CASH REGISTERS, ACCOUNTING MACHINES, AND
ELECTRONIC DATA PROCESSING SYSTEMS, WHICH IT MARKETS WORLDWIDE.  ITS
HOME OFFICES, MAIN PRODUCTION PLANT, AND WAREHOUSE ARE LOCATED IN
DAYTON, OHIO.  FOR MARKETING PURPOSES, NCR IS ORGANIZED INTO TWO
DIVISIONS, DOMESTIC AND INTERNATIONAL, EACH WHOLLY SEPARATED FROM THE
OTHER.  IT IS WITH THE OPERATIONS OF THE LATTER DIVISION THAT THIS CASE
IS CONCERNED. 

NCR MAINTAINS NO INVENTORY OF MACHINES WHICH ARE AVAILABLE TO MEET
INCOMING ORDERS FROM FOREIGN CUSTOMERS.  RATHER, WHEN A SALESMAN FROM
THE INTERNATIONAL DIVISION RECEIVES AN ORDER FROM A CUSTOMER, AN
INDIVIDUAL ORDER FORM IS COMPLETED.  THE MACHINE IS THEN BUILT TO
SPECIFICATION, TAKING INTO ACCOUNT THE COMMERCIAL PECULIARITIES OF THE
COUNTRY TO WHICH IT IS TO BE SHIPPED AND THE BUYER'S INDIVIDUAL NEEDS. 

AFTER MANUFACTURE, THE MACHINE IS INSPECTED, PACKED, AND CRATED FOR
SHIPMENT ABROAD.  THE CRATED MACHINE IS THEN TAKEN TO AN NCR WAREHOUSE
IN DAYTON, TO AWAIT FOREIGN SHIPMENT.  /1/  THE MACHINES RELEVANT TO
THIS CASE WERE IN STORAGE IN THE DAYTON WAREHOUSE, AWAITING SHIPMENT,
ON DECEMBER 31, 1967, WHEN THE PETITIONER TAX COMMISSIONER ASSESSED A
PERSONAL PROPERTY TAX UPON THEM.  /2/ 

NCR APPEALED THE COMMISSIONER'S ASSESSMENT TO THE BOARD OF TAX
APPEALS OF THE OHIO DEPARTMENT OF TAXATION.  ITS BASIC CLAIM WAS THAT
THE "INTERNATIONAL INVENTORY" IN THE DAYTON WAREHOUSE WAS MADE UP OF
EXPORTS, AND THUS WAS IMMUNE FROM STATE TAXATION UNDER THE IMPORT
EXPORT CLAUSE.  IN SUPPORT OF THIS CONTENTION, NCR OFFERED EVIDENCE TO
SHOW THAT, BECAUSE OF THEIR UNIQUE CONSTRUCTION AND SPECIAL ADAPTATION
FOR FOREIGN USE, THE CRATED MACHINES WERE NOT SALABLE DOMESTICALLY. 
FURTHER EVIDENCE WAS OFFERED TO SHOW THAT NO PIECE OF EQUIPMENT BUILT
FOR THE INTERNATIONAL DIVISION HAS EVER GONE ANYWHERE BUT INTO THAT
DIVISION; THAT THERE IS NO RECORDED INSTANCE OF A MACHINE THAT WAS SOLD
TO A FOREIGN PURCHASER BEING RETURNED; AND THAT NO EXPORTED ITEM HAS
EVER FOUND ITS WAY BACK INTO THE UNITED STATES MARKET.  /3/ 

THE BOARD OF TAX APPEALS NONETHELESS UPHELD THE COMMISSIONER'S
ASSESSMENT.  IT RULED THAT EVEN IF THE CRATED MACHINES WERE IRREVOCABLY
COMMITTED TO EXPORT, THE IMMUNITY FROM STATE TAXATION CONFERRED BY ART.
I, 10, CL. 2, DID NOT ATTACH UNTIL THE PROPERTY ACTUALLY STARTED ON ITS
JOURNEY TO A FOREIGN DESTINATION.  SINCE THE MACHINES HERE HAD NOT YET
ENTERED THE EXPORT STREAM, THE BOARD OF TAX APPEALS CONCLUDED THAT THEY
WERE STILL SUBJECT TO THE PERSONAL PROPERTY TAX. 

THE SUPREME COURT OF OHIO REVERSED THIS DECISION BY A DIVIDED VOTE. 
35 OHIO ST.2D 166, 298 N.E.2D 559.  RELYING ON THE EVIDENCE ABOUT THE
DOMESTIC NONSALABILITY OF THE MACHINES, THE STATE COURT CONCLUDED THAT
THERE WAS A "CERTAINTY OF EXPORT" IN THIS CASE.  GIVEN THAT
"CERTAINTY," THE COURT THOUGHT IT IRRELEVANT FOR IMPORT-EXPORT CLAUSE
PURPOSES THAT THE TAXED MACHINES HAD NOT, ON THE DATE OF THE
ASSESSMENT, BEEN MOVED FROM THE STORAGE FACILITY IN DAYTON.  WE GRANTED
CERTIORARI, 414 U.S. 1111, BECAUSE THE CASE SEEMED TO PRESENT IMPORTANT
QUESTIONS TOUCHING THE ACCOMMODATION OF STATE AND FEDERAL INTERESTS
UNDER THE CONSTITUTION. 

        II 

BY ITS OWN TERMS, THE PROHIBITION ON TAXATION CONTAINED IN THE
IMPORT-EXPORT CLAUSE IS ABSOLUTE; NO DUTIES OR IMPOSTS ARE ALLOWED
"EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR EXECUTING (A STATE'S)
INSPECTION LAWS."  /4/  CONSEQUENTLY, THE ESSENTIAL QUESTION IN CASES
INVOLVING THE CLAUSE IS A NARROW ONE:  IS THE PROPERTY UPON WHICH A TAX
HAS BEEN SOUGHT TO BE IMPOSED AN "EXPORT," AND THUS ENTITLED TO
PROTECTION UNDER THE PROVISION'S LITERAL TERMS? 

THE SEMINAL CASE ON THE SUBJECT IS COE V. ERROL, 116 U.S. 517.  COE
INVOLVED A SHIPMENT OF SPRUCE LOGS THAT HAD BEEN HEWN AT VARIOUS
LOCATIONS IN MAINE AND NEW HAMPSHIRE, AND WERE TO BE FLOATED DOWN THE
ANDROSCOGGIN RIVER FOR MANUFACTURE AND SALE IN LEWISTON, MAINE.  THE
LOGS WERE DETAINED BY LOW WATER IN THE TOWN OF ERROL, NEW HAMPSHIRE,
WHERE THE LOCAL SELECTMEN ASSESSED A NUMBER OF TAXES UPON THEM.  THE
OWNERS OF THE LOGS CONTESTED THE ASSESSMENTS, CLAIMING THAT THE
PROPERTY WAS IMMUNE FROM TAXATION UNDER BOTH THE COMMERCE AND IMPORT
EXPORT CLAUSES, SINCE THE RIVER SERVED AS A "PUBLIC HIGHWAY"  FOR THE
INTERSTATE SHIPMENT OF TIMBER.  THE SUPREME COURT OF NEW HAMPSHIRE
SUSTAINED THE TAX, AND THIS COURT AFFIRMED. 

WRITING FOR THE COURT, MR. JUSTICE BRADLEY VIEWED "THE PRECISE
QUESTION FOR SOLUTION" AS FOLLOWS:

     "DO THE OWNER'S STATE OF MIND IN RELATION TO THE GOODS, THAT

  IS, HIS INTENT TO EXPORT THEM, AND HIS PARTIAL PREPARATION TO DO

  SO, EXEMPT THEM FROM TAXATION?"  ID., AT 525. 

THAT QUESTION WAS ANSWERED IN THE NEGATIVE.  RECOGNIZING THAT ITS TASK
WAS TO SET A "POINT OF TIME WHEN STATE JURISDICTION OVER THE
COMMODITIES OF COMMERCE BEGINS AND ENDS," ID., AT 526, THE COURT
CONCLUDED THAT 

"SUCH GOODS DO NOT CEASE TO BE PART OF THE GENERAL MASS OF PROPERTY
IN THE STATE, SUBJECT, AS SUCH, TO ITS JURISDICTION, AND TO TAXATION IN
THE USUAL WAY, UNTIL THEY HAVE BEEN SHIPPED, OR ENTERED WITH A COMMON
CARRIER FOR TRANSPORTATION TO ANOTHER STATE, OR HAVE BEEN STARTED UPON
SUCH TRANSPORTATION IN A CONTINUOUS ROUTE OR JOURNEY."  ID., AT 527. 
SINCE THE LOGS IN COE HAD NOT BEGUN A "FINAL MOVEMENT FOR
TRANSPORTATION FROM THE STATE OF THEIR ORIGIN TO THAT OF THEIR
DESTINATION," ID., AT 525, THE COURT HELD THAT THE CONSTITUTION
PROVIDED NO IMMUNITY FROM LOCAL TAXATION. 

THE BASIC PRINCIPLE OF COE V. ERROL IS A SIMPLE ONE--THE EXEMPTION
FROM TAXATION IN THE IMPORT-EXPORT CLAUSE "ATTACHES TO THE EXPORT AND
NOT TO THE ARTICLE BEFORE ITS EXPORTATION."  CORNELL V. COYNE, 192 U.S.
418, 427.  THIS COURT HAS ADHERED TO THAT PRINCIPLE IN THE ALMOST 90
YEARS SINCE COE WAS DECIDED, AND THE ESSENTIAL PROBLEM IN CASES
INVOLVING THE CONSTITUTIONAL PROHIBITION AGAINST TAXATION OF EXPORTS
HAS THEREFORE BEEN TO DECIDE WHETHER A SUFFICIENT COMMENCEMENT OF THE
PROCESS OF EXPORTATION HAS OCCURRED SO AS TO IMMUNIZE THE ARTICLE AT
ISSUE FROM STATE TAXATION.  OF NECESSITY, THE INQUIRY HAS USUALLY BEEN
A FACTUAL ONE.  FOR EXAMPLE, IN A.G. SPALDING & BROS. V. EDWARDS, 262
U.S. 66, THIS COURT DECIDED THAT DELIVERY OF BASEBALLS AND BATS TO AN
EXPORT CARRIER FOR SHIPMENT TO VENEZUELA CONSTITUTED A SIGNIFICANT
"STEP IN EXPORTATION," ID., AT 68, AND EXEMPTED THE GOODS FROM A
FEDERAL REVENUE TAX.  /5/  SIMILARLY, IN RICHFIELD OIL CORP. V. STATE
BOARD OF EQUALIZATION, 329 U.S. 69, IT WAS HELD THAT THE DELIVERY OF
OIL INTO THE STORAGE TANKS OF A NEW ZEALAND-BOUND STEAMER "MARKED THE
COMMENCEMENT OF THE MOVEMENT OF THE OIL ABROAD," ID., AT 83, MAKING THE
PRODUCT IMMUNE FROM A CALIFORNIA SALES TAX. 

YET, EVEN IF THE INQUIRY IN CASES LIKE SPALDING AND RICHFIELD OIL
WAS SPECIFICALLY DIRECTED AT DETERMINING WHETHER PARTICULAR ACTS OF
MOVEMENT TOWARD A FINAL DESTINATION CONSTITUTED SUFFICIENT ENTRANCE
INTO THE EXPORT STREAM TO INVOKE THE PROTECTION OF THE IMPORT-EXPORT
CLAUSE, THIS COURT HAS NEVER LOST SIGHT OF ONE BASIC PRINCIPLE--AT
LEAST SOME SUCH ENTRANCE IS A PREREQUISITE TO THE CLAUSE'S OPERATION. 
THAT FACT IS WELL ILLUSTRATED BY THE OPINION OF THE COURT IN EMPRESA
SIDERURGICA V. COUNTY OF MERCED, 337 U.S. 154.  THAT CASE INVOLVED A
CALIFORNIA CEMENT PLANT, WHICH HAD BEEN SOLD TO A COLOMBIAN BUYER. 
TITLE TO THE PROPERTY HAD PASSED TO THE BUYER, AND A COMMON CARRIER HAD
BEGUN TO DISMANTLE THE PLANT AND CRATE IT FOR SHIPMENT TO COLOMBIA. 

AT A STAGE WHEN 12% OF THE PLANT HAD BEEN SHIPPED OUT OF THE
COUNTRY, THE COUNTY OF MERCED LEVIED A PERSONAL PROPERTY TAX ON THE
REMAINING 88%.  THIS BALANCE INCLUDED ABOUT 10% OF THE ORIGINAL PLANT
THAT HAD BEEN DISMANTLED AND CRATED OR PREPARED FOR SHIPMENT, BUT WHICH
HAD NOT YET BEGUN ITS VOYAGE TO COLOMBIA.  THIS COURT HELD THAT THE TAX
ON THE 88%, INCLUDING THIS CRATED PORTION, DID NOT VIOLATE THE IMPORT
EXPORT CLAUSE.  ADHERING TO THE TEST OF COE V. ERROL, THE COURT
STATED: 

     "UNDER THAT TEST IT IS NOT ENOUGH THAT THERE IS AN INTENT TO

  EXPORT, OR A PLAN WHICH CONTEMPLATES EXPORTATION, OR AN

  INTEGRATED SERIES OF EVENTS WHICH WILL END WITH IT . . . . IT IS

  THE ENTRANCE OF THE ARTICLES INTO THE EXPORT STREAM THAT MARKS

THE START OF THE PROCESS OF EXPORTATION.  THEN THERE IS CERTAINTY

  THAT THE GOODS ARE HEADED FOR THEIR FOREIGN DESTINATION AND WILL

  NOT BE DIVERTED TO DOMESTIC USE.  NOTHING LESS WILL SUFFICE." 

  ID., AT 156 - 157. 

SINCE THE 88% OF THE CEMENT PLANT HAD NOT YET BEGUN ITS OUT-OF-STATE
JOURNEY, THE COURT CONCLUDED THAT THE CALIFORNIA TAX WAS NOT ONE UPON
"EXPORTS" WITHIN THE MEANING OF THE CLAUSE.  /6/ 

WE CAN FIND LITTLE IN THE CASE BEFORE US TO TAKE IT OUTSIDE THE
AMBIT OF THE EMPRESA SIDERURGICA HOLDING.  AT THE TIME THAT THE
RESPONDENT'S MACHINES WERE ASSESSED FOR TAXATION, THEY WERE SITTING IN
THE DAYTON WAREHOUSE AWAITING SHIPMENT.  TITLE AND POSSESSION WERE IN
NCR, PAYMENT HAD NOT YET BEEN MADE BY THE PUTATIVE PURCHASERS, NO
EXPORT LICENSE HAD ISSUED, AND THE MACHINES WERE IN THE COMPLETE
CONTROL OF THE RESPONDENT.  MORE IMPORTANT, THERE HAD SIMPLY BEEN NO
MOVEMENT OF THE GOODS--NO SHIPMENT, AND NO COMMENCEMENT OF THE PROCESS
OF EXPORTATION.  GIVEN THIS FACTUAL SETTING, IT WOULD REQUIRE A SHARP
DEPARTURE FROM NEARLY A CENTURY OF PRECEDENTS UNDER THE IMPORT-EXPORT
CLAUSE FOR US TO CONCLUDE THAT THE MACHINES WERE "EXPORTS"  AND EXEMPT
FROM STATE TAXATION. 

IN AN EFFORT TO AVOID THE CLEAR HOLDINGS OF OUR PRIOR CASES, NCR
EMPHASIZES THE PECULIAR NATURE OF THE TAXED MACHINES, AND CONTENDS THAT
THEIR NONADAPTABILITY TO DOMESTIC USE BROUGHT ABOUT A "CERTAINTY OF
EXPORT."  BECAUSE OF THIS PRACTICAL ABSENCE OF "DIVERSION POTENTIAL,"
NCR ARGUES THAT THE ULTIMATE PLACEMENT OF THE MACHINES INTO THE STREAM
OF EXPORTATION IS A MERE FORMALITY, AND THAT THIS COURT SHOULD TREAT
THE CRATED PROPERTY AS ALREADY HAVING BECOME AN EXPORT IN THE
CONSTITUTIONAL SENSE EVEN AS IT SITS IN THE DAYTON WAREHOUSE. 

AS A PRACTICAL MATTER, IT MIGHT WELL BE DOUBTED THAT THE "DIVERSION
POTENTIAL" OF THE CRATED PORTIONS OF THE CEMENT PLANT IN EMPRESA
SIDERURGICA WAS ANY GREATER THAN THAT PRESENT HERE.  /7/  BUT, EVEN
ASSUMING, ARGUENDO, THE VALIDITY OF NCR'S ARGUMENTS ABOUT THE PRACTICAL
CERTAINTY OF EXPORT HERE, WE THINK IT PLAIN THAT THE WAREHOUSED
MACHINES ARE NOT ENTITLED TO THE PROTECTION OF THE IMPORT-EXPORT
CLAUSE.  MR. JUSTICE FRANKFURTER PUT THE MATTER SUCCINCTLY IN JOY OIL
CO. V. STATE TAX COMM'N, 337 U.S. 286, 288: 

    "THE EXPORT-IMPORT CLAUSE WAS MEANT TO CONFER IMMUNITY FROM

  LOCAL TAXATION UPON PROPERTY BEING EXPORTED, NOT TO RELIEVE

  PROPERTY EVENTUALLY TO BE EXPORTED FROM ITS SHARE OF THE COST OF

  LOCAL SERVICES." 

WE MAY ACCEPT AS FACT THE RESPONDENT'S ASSURANCES THAT THE PROSPECT OF
EVENTUAL EXPORTATION HERE WAS VIRTUALLY CERTAIN.  "BUT THAT PROSPECT,
NO MATTER HOW BRIGHT, DOES NOT START THE PROCESS OF EXPORTATION.  ON
THE TAX DATE THE MOVEMENT TO FOREIGN SHORES HAD NEITHER STARTED NOR
BEEN COMMITTED."  EMPRESA SIDERURGICA, 337 U.S., AT 157.  GIVEN THE
ABSENCE OF AN ENTRANCE OF THE RESPONDENT'S MACHINES INTO THE EXPORT
STREAM, THE IMMUNITIES OF THE IMPORT-EXPORT CLAUSE ARE UNAVAILABLE. 

IT MAY BE SAID THAT INSISTENCE UPON AN ACTUAL MOVEMENT INTO THE
STREAM OF EXPORT IN THE CASE AT HAND REPRESENTS AN OVERLY WOODEN OR
MECHANISTIC APPLICATION OF THE COE DOCTRINE.  THIS IS AN INSTANCE,
HOWEVER, WHERE WE BELIEVE THAT SIMPLICITY HAS ITS VIRTUES.  THE COURT
RECOGNIZED LONG AGO THAT EVEN IF IT IS NOT AN EASY MATTER TO SET DOWN A
RULE DETERMINING THE MOMENT IN TIME WHEN ARTICLES OBTAIN THE PROTECTION
OF THE IMPORT-EXPORT CLAUSE, "IT IS HIGHLY IMPORTANT, BOTH TO THE
SHIPPER AND TO THE STATE, THAT IT SHOULD BE CLEARLY DEFINED SO AS TO
AVOID ALL AMBIGUITY OR QUESTION."  COE, 116 U.S., AT 526.  AS MR.
JUSTICE HOLMES PUT THE MATTER IN A. G. SPALDING, 262 U.S., AT 69: 

"(WE HAVE TO FIX A POINT AT WHICH, IN VIEW OF THE PURPOSE OF THE
CONSTITUTION, THE EXPORT MUST BE SAID TO BEGIN.  AS ELSEWHERE IN THE
LAW THERE WILL BE OTHER POINTS VERY NEAR TO IT ON THE OTHER SIDE, SO
THAT IF THE NECESSITY OF FIXING ONE DEFINITELY IS NOT REMEMBERED ANY
DETERMINATION MAY SEEM ARBITRARY."  OUR PRIOR CASES HAVE DETERMINED
THAT THE PROTECTIONS OF THE IMPORT-EXPORT CLAUSE ARE NOT AVAILABLE
UNTIL THE ARTICLE AT ISSUE BEGINS ITS PHYSICAL ENTRY INTO THE STREAM OF
EXPORTATION.  WE FIND NO REASON TO DEPART FROM THAT SETTLED DOCTRINE. 

FOR THESE REASONS, THE JUDGMENT OF THE SUPREME COURT OF OHIO IS
        REVERSED. 

/1/  THERE IS OFTEN A TIME LAG BETWEEN PRODUCTION AND FINAL
SHIPMENT, AND AN INVENTORY OF INTERNATIONAL MACHINES IS THEREFORE BUILT
UP AT THE DAYTON WAREHOUSE.  THE DELAYS IN EVENTUAL SHIPMENT OCCUR FOR
A NUMBER OF REASONS.  IN SOME CASES, RECIPIENT COUNTRIES WILL NOT ALLOW
PARTIAL SHIPMENTS, SO WHEN A LARGE ORDER HAS BEEN PLACED AND THE
PRODUCTION CYCLE IS SLOW, THE MACHINES MUST BE CONSOLIDATED AND STORED
PRIOR TO SHIPMENT.  IN THE ELECTRONIC DATA PROCESSING AREA, THE
COMPONENT PARTS OF A SHIPMENT ARE OFTEN PRODUCED AT SEVERAL DIFFERENT
LOCATIONS, NECESSITATING A CONSOLIDATION PRIOR TO SHIPMENT.  IN OTHER
INSTANCES, DELAY IN FINAL SHIPMENT IS CAUSED BY DIFFICULTIES IN
PROCURING IMPORTATION LICENSES OR THE UNCERTAINTIES OF THE
INTERNATIONAL MONETARY SITUATION. 

/2/  UNDER OHIO REV. CODE ANN. 5709.01, ALL PERSONAL PROPERTY
LOCATED AND USED IN BUSINESS WITHIN THE STATE IS SUBJECT TO AN AD
VALOREM TAX.  OHIO REV. CODE ANN. 5711.16 PROVIDES THAT ARTICLES WHICH
HAVE AT ANY TIME BEEN MANUFACTURED ARE SUBJECT TO THE TAX. 

/3/  A NUMBER OF FACTORS MAKE DOMESTIC SALES OF THE MACHINES
IMPRACTICAL.  FOR ONE THING, THE KEYBOARDS, PRINTING MECHANISMS,
CHARACTERS, DISPENSING MECHANISMS, AND DECIMAL POINT PLACEMENT OF THE
MACHINES ARE GEARED TO THE PARTICULAR MONETARY SYSTEM EMPLOYED IN THE
CUSTOMER'S COUNTRY.  MOREOVER, THE MACHINES ARE QUITE OFTEN DESIGNED
FOR USE ON ELECTRICAL SYSTEMS NOT PREVALENT IN THIS COUNTRY.  AND, EVEN
WHEN MECHANICAL PROBLEMS DO NOT EXIST, THE FACT REMAINS THAT
MERCHANDISING TECHNIQUES IN THIS COUNTRY ARE CONSIDERABLY MORE
SOPHISTICATED THAN THOSE IN MANY OTHER NATIONS, SO AS TO MAKE MACHINES
DESIGNED FOR FOREIGN USE SOMEWHAT OBSOLETE IN THE DOMESTIC MARKET. 

/4/  THERE IS NO CLAIM THAT THIS EXCEPTION IS APPLICABLE IN ANY WAY
IN THE PRESENT CASE. 

/5/  THE SPALDING CASE AROSE UNDER ART. I, 9, CL. 5, OF THE
CONSTITUTION, WHICH PROVIDES THAT "NO TAX OR DUTY SHALL BE LAID ON
ARTICLES EXPORTED FROM ANY STATE."  A LONG LINE OF CASES HAS
RECOGNIZED, HOWEVER, THAT THE MEANING OF "EXPORT" IS THE SAME UNDER
THAT PROVISION AS UNDER THE IMPORT-EXPORT CLAUSE.  SEE, E.G., BROWN V.
MARYLAND, 12 WHEAT.  419, 445; TURPIN V. BURGESS, 117 U.S. 504, 506;
CORNELL V. COYNE, 192 U.S. 418, 427 - 428; RICHFIELD OIL CORP. V. STATE
BOARD OF EQUALIZATION, 329 U.S. 69, 83. 

/6/  IN A DECISION RENDERED TWO WEEKS AFTER EMPRESA SIDERURGICA, THE
COURT MADE IT CLEAR THAT NOT EVERY PRELIMINARY MOVEMENT OF GOODS TOWARD
EVENTUAL EXPORTATION WAS SUFFICIENT TO INVOKE THE PROTECTION OF THE
IMPORT-EXPORT CLAUSE.  IN JOY OIL CO. V. STATE TAX COMM'N, 337 U.S.
286, THE QUESTION WAS WHETHER AN AD VALOREM PROPERTY TAX ON GASOLINE
STORED IN TANKS AT DEARBORN, MICHIGAN, FOR EVENTUAL EXPORT TO CANADA,
WAS PERMISSIBLE UNDER THE CLAUSE.  THE GASOLINE HAD PREVIOUSLY BEEN
PURCHASED BY A CANADIAN CORPORATION, HAD BEEN CERTIFIED AS PURCHASED
FOR EXPORT, SHIPPED BY RAIL TO DETROIT UNDER BILLS OF LADING MARKED
"FOR EXPORT TO CANADA," AND EVENTUALLY PLACED IN THE DEARBORN TANKS. 
THE BULK OF THE GASOLINE REMAINED IN THE TANKS FOR OVER 15 MONTHS,
BECAUSE OF AN APPARENT SHORTAGE OF SHIPPING SPACE BY WATER.  THIS COURT
HELD THAT, DESPITE THE INITIAL TRANSPORTATION OF THE GASOLINE TO
DEARBORN, THE HIATUS IN THE JOURNEY SUBJECTED THE PROPERTY TO STATE
TAXATION. 

/7/  INDEED, IT MIGHT WELL BE CONTENDED THAT IN THIS CASE:  "THERE
IS NO CERTAINTY OF EXPORT.  THE RECORD ESTABLISHES THAT SOME MACHINES
HAVE REMAINED STORED IN THE WAREHOUSE AWAITING SHIPMENT FOR THREE
YEARS.  THE ORDERS COULD BE CANCELLED, THE EXPORT LICENSE MIGHT NEVER
ISSUE, THE FINANCING MAY FAIL TO MATERIALIZE, THE MACHINES COULD BE
DESTROYED, DISMANTLED OR SOLD FOR SCRAP.  THESE MACHINES WERE NO
DIFFERENT FROM ANY OTHER MASS OF GOODS IN A WAREHOUSE AWAITING
SHIPMENT."  35 OHIO ST.2D 166, 175, 298 N.E.2D 559, 564 - 565 (O'NEILL,
C.J., DISSENTING). 

DWIGHT C. PETTAY, JR., ASSISTANT ATTORNEY GENERAL OF OHIO, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE WILLIAM J.
BROWN, ATTORNEY GENERAL, AND MARYANN B. GALL, ASSISTANT ATTORNEY
GENERAL. 

ROGER F. DAY ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WAS CARLTON S. DARGUSCH, JR.
..END :















BEASLEY V. FOOD FAIR OF NORTH CAROLINA, 416 U.S. 653 


       BEASLEY ET AL. V. FOOD FAIR OF NORTH CAROLINA, INC., ET AL.

        CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA

        NO. 72 - 1597.  ARGUED FEBRUARY 19, 1974--DECIDED MAY 15,

           1974; (282 N.C. 530, 193 S.E. 2D 911, AFFIRMED.) 


    FOLLOWING DISCHARGE OF PETITIONERS, MANAGERS OF MEAT

  DEPARTMENTS IN RESPONDENT FOOD FAIR'S STORES, BECAUSE OF THEIR

  UNION MEMBERSHIP, THE UNION FILED UNFAIR LABOR PRACTICE CHARGES

  WITH THE NATIONAL LABOR RELATIONS BOARD, WHICH WERE DISMISSED ON

  THE GROUND THAT THE PROTECTION OF THE NATIONAL LABOR RELATIONS

  ACT (NLRA) DID NOT EXTEND TO "SUPERVISORS" LIKE PETITIONERS. 

  THEREUPON PETITIONERS BROUGHT SUIT IN STATE COURT, UNDER 95 - 83

  OF NORTH CAROLINA'S RIGHT-TO-WORK LAW.  THE TRIAL COURT GRANTED

  RESPONDENTS' MOTION FOR SUMMARY JUDGMENT.  ON THE GROUND THAT

ENFORCING THE STATE LAW IN FAVOR OF PETITIONERS WAS BARRED BY THE

  SECOND CLAUSE OF 14(A) OF THE NLRA ("NO EMPLOYER . . . SHALL BE

  COMPELLED TO DEEM INDIVIDUALS DEFINED HEREIN AS SUPERVISORS AS

  EMPLOYEES FOR THE PURPOSE OF ANY LAW, EITHER NATIONAL OR LOCAL,

  RELATING TO COLLECTIVE BARGAINING"), THE STATE SUPREME COURT

  ULTIMATELY UPHELD THAT RULING.  HELD:  THE SECOND CLAUSE OF 14(A)

  APPLIES TO ANY LAW REQUIRING AN EMPLOYER TO ACCORD TO SUPERVISORS

  LIKE PETITIONERS, WHO ARE "THE FRONT LINE OF MANAGEMENT,"  THE

  "ANOMALOUS STATUS OF EMPLOYEES," AND ENFORCEMENT OF THE NORTH

  CAROLINA LAW WOULD THUS FLOUT THE NATIONAL POLICY AGAINST

  COMPULSION UPON EMPLOYERS FROM EITHER FEDERAL OR STATE

  AUTHORITIES TO TREAT SUPERVISORS AS EMPLOYEES.  PP. 656 - 662. 

     BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

TAFT-HARTLEY AMENDMENTS /1/  OF THE NATIONAL LABOR RELATIONS ACT
EXCLUDED SUPERVISORS FROM THE PROTECTIONS OF THE ACT AND THUS FREED
EMPLOYERS TO DISCHARGE SUPERVISORS WITHOUT VIOLATING THE ACT'S
RESTRAINTS AGAINST DISCHARGES ON ACCOUNT OF LABOR UNION MEMBERSHIP. 
THE QUESTION IN THIS CASE IS WHETHER THOSE AMENDMENTS ALSO FREED THE
EMPLOYER FROM LIABILITY IN DAMAGES TO THE DISCHARGED SUPERVISORS UNDER
95 - 81 AND 95 - 83 OF NORTH CAROLINA'S RIGHT-TO-WORK LAW THAT PROVIDES
SUCH AN ACTION FOR EMPLOYEES DISCHARGED FOR UNION MEMBERSHIP.  /2/ 

RESPONDENT FOOD FAIR OF NORTH CAROLINA, INC. (FOOD FAIR), A GROCERY
CHAIN, OPERATES STORES THROUGHOUT NORTH CAROLINA.  PETITIONERS WERE
MANAGERS OF MEAT DEPARTMENTS IN FOOD FAIR STORES IN THE WINSTON-SALEM
AREA.  WHEN LOCAL 525 OF THE AMALGAMATED MEAT CUTTERS AND BUTCHER
WORKMEN OF NORTH AMERICA, AFL-CIO, ORGANIZED THE STORES' MEATCUTTERS,
PETITIONERS ALSO JOINED THE UNION.  FOOD FAIR DISCHARGED THEM,
ALLEGEDLY ON ACCOUNT OF THEIR UNION MEMBERSHIP, IMMEDIATELY AFTER LOCAL
525 WON A REPRESENTATION ELECTION CONDUCTED BY THE NATIONAL LABOR
RELATIONS BOARD.  THE LOCAL CLAIMED THAT THE DISCHARGES CONSTITUTED AN
UNFAIR LABOR PRACTICE AND FILED CHARGES WITH THE REGIONAL DIRECTOR OF
THE NLRB.  THE REGIONAL DIRECTOR REFUSED TO ISSUE A COMPLAINT ON THE
GROUND THAT PETITIONERS WERE "SUPERVISORS" EXCLUDED FROM THE ACT'S
PROTECTION.  ON APPEAL, THE NLRB GENERAL COUNSEL REFUSED TO ISSUE A
COMPLAINT ON THE SAME GROUND.  /3/  PETITIONERS THEREUPON BROUGHT THIS
SUIT IN STATE COURT AGAINST FOOD FAIR UNDER 95 - 83.  FOOD FAIR
CONTENDED SUCCESSFULLY THAT THE SECOND CLAUSE OF 14 (A) OF THE NATIONAL
LABOR RELATIONS ACT, 29 U.S.C. 164(A)--"BUT NO EMPLOYER . . . SHALL BE
COMPELLED TO DEEM INDIVIDUALS DEFINED HEREIN AS SUPERVISORS AS
EMPLOYEES FOR THE PURPOSE OF ANY LAW, EITHER NATIONAL OR LOCAL,
RELATING TO COLLECTIVE BARGAINING"--PROHIBITED ENFORCEMENT OF THE STATE
LAW IN FAVOR OF SUPERVISORS, AND WAS GRANTED SUMMARY JUDGMENT.  THE
NORTH CAROLINA COURT OF APPEALS REVERSED IN RELIANCE UPON HANNA MINING
V. MARINE ENGINEERS, 382 U.S. 181 (1965).  15 N.C. APP. 323, 190 S.E.
2D 333 (1972).  THE NORTH CAROLINA SUPREME COURT IN TURN REVERSED THE
COURT OF APPEALS AND REINSTATED THE SUMMARY JUDGMENT.  282 N.C. 530,
193 S.E. 2D 911 (1973).  WE GRANTED CERTIORARI, 414 U.S. 907 (1973). 
WE AFFIRM. 

PETITIONERS CONCEDE THAT THE TAFT-HARTLEY AMENDMENTS EXCLUDE
SUPERVISORS FROM THE PROTECTION OF THE ACT.  AND IT IS UNDISPUTED THAT
PETITIONERS' STATUS AS "SUPERVISORS"  HAS BEEN SETTLED BY THE
DETERMINATIONS OF THE REGIONAL DIRECTOR AND GENERAL COUNSEL OF THE
NLRB.  SEE N. 3, SUPRA; HANNA MINING V. MARINE ENGINEERS, SUPRA, AT
190; BRIEF FOR RESPONDENTS 7.  THE ACT THEREFORE DID NOT PROTECT
PETITIONERS AGAINST DISCHARGE BY FOOD FAIR SOLELY BECAUSE OF THEIR
MEMBERSHIP IN LOCAL 525.  OIL CITY BRASS WORKS V. NLRB, 357 F. 2D 466
(CA5 1966); NLRB V. FULLERTON PUBLISHING CO., 283 F.2D 545 (CA9 1960). 
SEE NLRB V. INTER-CITY ADVERTISING CO., 190 F.2D 520 (CAJ 1951); NLRB
V. GRIGGS EQUIPMENT, INC., 307 F.2D 275 (CA5 1962); NLRB V. BIG THREE
WELDING EQUIPMENT CO., 359 F.2D 77 (CA5 1966); BRIEF FOR PETITIONERS 8
9. 

OUR INQUIRY IS THUS NARROWED TO THE DETERMINATION OF WHETHER
CONGRESS, IN ADDITION TO DENYING THE PROTECTIONS OF THE FEDERAL LAW TO
SUPERVISORS DISCHARGED FOR UNION MEMBERSHIP, SHOULD BE TAKEN AS HAVING
ALSO PRECLUDED NORTH CAROLINA FROM AFFORDING PETITIONERS ITS STATE
DAMAGES REMEDY FOR SUCH DISCHARGES.  SECTION 14 (A) DOES NOT WHOLLY
FORECLOSE STATE REGULATIONS RESPECTING THE STATUS OF SUPERVISORS, BUT
ITS TWO CLAUSES REQUIRE INDIVIDUALIZED CONSIDERATION IN VIEW OF THE
COURT OF APPEALS' RELIANCE ON HANNA MINING.  HANNA, CONSTRUING THE
FIRST CLAUSE--"NOTHING HEREIN SHALL PROHIBIT ANY INDIVIDUAL EMPLOYED AS
A SUPERVISOR FROM BECOMING OR REMAINING A MEMBER OF A LABOR
ORGANIZATION"--HELD THAT "CERTAINLY CONGRESS MADE NO CONSIDERED
DECISION GENERALLY TO EXCLUDE STATE LIMITATIONS ON SUPERVISORY
ORGANIZING," 382 U.S., AT 190.  THE COURT ACCORDINGLY HELD THAT THE
WISCONSIN ANTI-PICKETING STATUTES--THAT FURTHERED, NOT HINDERED, THE
ACT'S LIMITATIONS--COULD BE APPLIED TO ACTIVITY BY A UNION OF
SUPERVISORS. 

THAT CONSTRUCTION, OF COURSE, IS CONSISTENT WITH THE OBJECTIVES OF
THE SECTION.  BUT THE SECOND CLAUSE IS A BROAD COMMAND THAT NO EMPLOYER
SHALL BE COMPELLED TO TREAT SUPERVISORS AS EMPLOYEES FOR THE PURPOSE OF
"ANY LAW, EITHER NATIONAL OR LOCAL, RELATING TO COLLECTIVE
BARGAINING."  CONSISTENTLY WITH THIS BROADER COMMAND, AND HANNA'S
FURTHER STATEMENT THAT "CONGRESS' PROPELLING INTENTION WAS TO RELIEVE
EMPLOYERS FROM ANY COMPULSION UNDER THE ACT AND UNDER STATE LAW TO
COUNTENANCE OR BARGAIN WITH ANY UNION OF SUPERVISORY EMPLOYEES," 382
U.S., AT 189, THE NORTH CAROLINA SUPREME COURT CONCLUDED THAT 95 - 81
AND 95 - 83 OF THE STATE'S RIGHT-TO-WORK LAW CONTRAVENED THE
CONGRESSIONAL OBJECTIVE.  THAT COURT HELD:  "TO PERMIT A STATE LAW TO
DEPRIVE AN EMPLOYER OF HIS RIGHT TO DISCHARGE HIS SUPERVISOR FOR
MEMBERSHIP IN A UNION WOULD COMPLETELY FRUSTRATE THE CONGRESSIONAL
DETERMINATION TO LEAVE THIS WEAPON OF SELF-HELP TO THE EMPLOYER."  282
N.C., AT 541, 193 S.E. 2D, AT 918. 

PETITIONERS ARGUE, HOWEVER, THAT CONGRESS MUST HAVE MEANT THAT THE
REACH OF THE LIMITATION OF THE SECOND CLAUSE THAT "NO EMPLOYER . . .
SHALL BE COMPELLED TO DEEM . . . SUPERVISORS AS EMPLOYEES FOR THE
PURPOSE OF ANY LAW, EITHER NATIONAL OR LOCAL, RELATING TO COLLECTIVE
BARGAINING" (EMPHASIS SUPPLIED) DID NOT BAR STATE DAMAGES REMEDIES FOR
THE DISCHARGE OF SUPERVISORS FOR UNION MEMBERSHIP BUT WAS A LIMITED
PROHIBITION AGAINST STATE REGULATIONS THAT COMPEL THE EMPLOYER TO
BARGAIN COLLECTIVELY WITH UNIONS THAT INCLUDE SUPERVISORS AS MEMBERS. 
THE LEGISLATIVE HISTORY OF 14 (A), READ WITH ITS COMPANION AMENDMENTS,
2 (3) AND 2 (11), SATISFIES US THAT CONGRESS EMBRACED LAWS LIKE NORTH
CAROLINA'S 95 - 81 AND 95 - 83 WITHIN THE PROHIBITION AGAINST "ANY
(LOCAL) LAW . . . RELATING TO COLLECTIVE BARGAINING." 

TAFT-HARTLEY AMENDMENTS PROVIDED THAT "(THE TERM 'EMPLOYEE' SHALL
INCLUDE ANY EMPLOYEE . . . ."  49 STAT. 450.  THE NLRB, AFTER MUCH
VACILLATION, /4/  INTERPRETED THIS TERM AS INCLUDING SUPERVISORS. 
PACKARD MOTOR CAR C. V. NLRB, 330 U.S. 485 (1947), SUSTAINED THE
BOARD.  CONGRESS REACTED BY AMENDING 2(3) AND 2(11), AND ENACTING 14
(A) FOR THE EXPRESS PURPOSE OF RELIEVING EMPLOYERS OF OBLIGATIONS UNDER
THE ACT WHEN SUPERVISORS, IF EMPLOYEES UNDER THE ACT, WOULD BE THE
FOCUS OF CONCERN.  HANNA MINING V. MARINE ENGINEERS, SUPRA, AT 188. 
THOSE AMENDMENTS WERE THE PRODUCT OF COMPROMISE OF H.R. 3050 AND S.
1126, 80TH CONG., 1ST SESS. (1947).  THERE WERE DIFFERNCES IN THE
SPECIFIC PROVISIONS ADDRESSED TO SUPERVISORY EMPLOYEES, /5/  BUT NO
DIFFERENCE IN OBJECTIVE.  EMPLOYERS WERE NOT TO BE OBLIGED TO RECOGNIZE
AND BARGAIN WITH UNIONS INCLUDING OR COMPOSED OF SUPERVISORS, /6/
BECAUSE SUPERVISORS WERE MANAGEMENT OBLIGED TO BE LOYAL TO THEIR
EMPLOYER'S INTERESTS, AND THEIR IDENTITY WITH THE INTERESTS OF RANK-AND
FILE EMPLOYEES MIGHT IMPAIR THAT LOYALTY AND THREATEN REALIZATION OF
THE BASIC ENDS OF FEDERAL LABOR LEGISLATION.  THUS THE HOUSE REPORT
STATED: 

     "MANAGEMENT, LIKE LABOR, MUST HAVE FAITHFUL AGENTS.--IF WE ARE

  TO PRODUCE GOODS COMPETITIVELY AND IN SUCH LARGE QUANTITIES THAT

 MANY CAN BUY THEM AT LOW COST, THEN, JUST AS THERE ARE PEOPLE ON

  LABOR'S SIDE TO SAY WHAT WORKERS WANT AND HAVE A RIGHT TO EXPECT,

  THERE MUST BE IN MANAGEMENT AND LOYAL TO IT PERSONS NOT SUBJECT

  TO INFLUENCE OR CONTROL OF UNIONS, NOT ONLY TO ASSIGN PEOPLE TO

  THEIR WORK, TO SEE THAT THEY KEEP AT THEIR WORK AND DO IT WELL,

  TO CORRECT THEM WHEN THEY ARE AT FAULT, AND TO SETTLE THEIR

  COMPLAINTS AND GRIEVANCES, BUT TO DETERMINE HOW MUCH WORK

  EMPLOYEES SHOULD DO, WHAT PAY THEY SHOULD RECEIVE FOR IT, AND TO

  CARRY ON THE WHOLE OF LABOR RELATIONS."  H.R. REP. NO. 245, 80TH

  CONG., 1ST SESS., 16 (1947). 

FURTHER: 

     "THE BILL DOES NOT FORBID ANYONE TO ORGANIZE. 

     ##HC66! IT DOES NOT FGORBID ANY EMPLOYER TO RECOGNIZE A UNION

  OF FOREMEN.  EMPLOYERS WHO, IN THE PAST, HAVE BARGAINED

  COLLECTIVELY WITH SUPERVISORS MAY CONTINUE TO DO SO.  WHAT THE

BILL DOES IS TO SAY WHAT THE LAW ALWAYS HAS SAID UNTIL THE LABOR

  BOARD, IN THE EXERCISE OF WHAT IT MODESTLY CALLS ITS

  'EXPERTNESS,' CHANGED THE LAW:  THAT NO ONE, WHETHER EMPLOYER OR

  EMPLOYEE, NEED HAVE AS HIS AGENT ONE WHO IS OBLIGATED TO THOSE ON

  THE OTHER SIDE, OR ONE WHOM, FOR ANY REASON, HE DOES NOT TRUST." 

  ID., AT 17 (EMPHASIS IN ORIGINAL). 

THE SAME THEME--THAT UNIONIZING SUPERVISORS THREATENED REALIZATION
OF THE BASIC OBJECTIVES OF THE ACT TO INCREASE THE OUTPUT OF GOODS IN
COMMERCE BY PROMOTING LABOR PEACE--IS REPEATED IN THE SENATE REPORT. 
THE REPORT REFERS TO THE NLRB RULINGS THAT INCLUDED SUPERVISORS AS
PROTECTED EMPLOYEES AS 

"(A) RECENT DEVELOPMENT WHICH PROBABLY MORE THAN ANY OTHER SINGLE
FACTOR HAS UPSET ANY REAL BALANCE OF POWER IN THE COLLECTIVE-BARGAINING
PROCESS . . . . "THE FOLLY OR PERMITTING A CONTINUATION OF THIS POLICY
IS DRAMATICALLY ILLUSTRATED BY WHAT HAS HAPPENED IN THE CAPTIVE MINES
OF THE JONES & LAUGHLIN STEEL CORP. SINCE SUPERVISORY EMPLOYEES WERE
ORGANIZED BY THE UNITED MINE WORKERS UNDER THE PROTECTION OF THE ACT. 
DISCIPLINARY SLIPS ISSUED BY THE UNDERGROUND SUPERVISORS IN THESE MINES
HAVE FALLEN OFF BY TWO-THIRDS AND THE ACCIDENT RATE IN EACH MINE HAS
DOUBLED."  S. REP. NO. 105, 80TH CONG., 1ST SESS. 3, 4 (1947). 

THIS HISTORY COMPELS THE CONCLUSION THAT CONGRESS'  DOMINANT PURPOSE
IN AMENDING 2(3) AND 2(11), AND ENACTING 14(A) WAS TO REDRESS A
PERCIEVED IMBALANCE IN LABOR MANAGEMENT RELATIONSHIPS THAT WAS FOUND TO
ARISE FROM PUTTING SUPERVISORS IN THE POSITION OF SERVING TWO MASTERS
WITH OPPOSED INTERESTS.  SEE GENERALLY NLRB V. BELL AEROSPACE CO.,
ANTE, P. 267.  WE CONCLUDE, THEREFORE, THAT THE SECOND CLAUSE OF 14 (A)
RELIEVING THE EMPLOYER OF OBLIGATIONS UNDER "ANY LAW EITHER NATIONAL OR
LOCAL, RELATING TO COLLECTIVE BARGAINING" APPLIES TO ANY LAW THAT
REQUIRES AN EMPLOYER "TO ACCORD TO THE FRONT LINE OF MANAGEMENT THE
ANOMALOUS STATUS OF EMPLOYEES."  S. REP. NO. 105, SUPRA, AT 5.
ENFORCEMENT AGAINST RESPONDENTS IN THIS CASE OF 95 - 81 AND 95 - 83
WOULD PLAINLY PUT PRESSURE ON RESPONDENTS "TO ACCORD TO THE FRONT LINE
OF MANAGEMENT THE ANOMALOUS STATUS OF EMPLOYEES," AND WOULD THEREFORE
FLOUT THE NATIONAL POLICY AGAINST COMPULSION UPON EMPLOYERS FROM EITHER
FEDERAL OR STATE AGENCIES TO TREAT SUPERVISORS AS EMPLOYEES.  CF.
TEAMSTERS UNION V. MORTON, 377 U.S. 252, 258 - 260 (1964).  /7/

              AFFIRMED. 

/1/ LABOR MANAGEMENT RELATIONS ACT, 1947, C. 120, 61 STAT. 136.  THE
THREE AMENDMENTS RELEVANT TO THIS CASE PROVIDE: 

2(3).  "THE TERM 'EMPLOYEE' SHALL INCLUDE ANY EMPLOYEE, AND SHALL
NOT BE LIMITED TO THE 'EMPLOYEES OF A PARTICULAR EMPLOYER, UNLESS THE
ACT EXPLICITLY STATES OTHERWISE, AND SHALL INCLUDE ANY INDIVIDUAL WHOSE
WORK HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY CURRENT
LABOR DISPUTE OR BECAUSE OF ANY UNFAIR LABOR PRACTICE, AND WHO HAS NOT
OBTAINED ANY OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT, BUT
SHALL NOT INCLUDE ANY INDIVIDUAL EMPLOYED AS AN AGRICULTURAL LABORER,
OR IN THE DOMESTIC SERVICE OF ANY FAMILY OR PERSON AT HIS HOME, OR ANY
INDIVIDUAL EMPLOYED BY HIS PARENT OR SPOUSE, OR ANY INDIVIDUAL HAVING
THE STATUS OF AN INDEPENDENT CONTRACTOR, OR ANY INDIVIDUAL EMPLOYED AS
A SUPERVISOR, OR ANY INDIVIDUAL EMPLOYED BY AN EMPLOYER SUBJECT TO THE
RAILWAY LABOR ACT, AS AMENDED FROM TIME TO TIME, OR BY ANY OTHER PERSON
WHO IS NOT AN EMPLOYER AS HEREIN DEFINED."  61 STAT. 137, 29 U.S.C. 152
(3). 

2(11).  "THE TERM 'SUPERVISOR' MEANS ANY INDIVIDUAL HAVING
AUTHORITY, IN THE INTEREST OF THE EMPLOYER, TO HIRE, TRANSFER, SUSPEND,
LAY OFF, RECALL, PROMOTE, DISCHARGE, ASSIGN, REWARD, OR DISCIPLINE
OTHER EMPLOYEES, OR RESPONSIBLY TO DIRECT THEM, OR TO ADJECT THEIR
GRIEVANCES, OR EFFECTIVELY TO RECOMMEND SUCH ACTION, IF IN CONNECTION
WITH THE FOREGOING THE EXERCISE OF SUCH AUTHORITY IS NOT OF A MERELY
ROUTINE OR CLERICAL NATURE, BUT REQUIRES THE USE OF INDEPENDENT
JUDGMENT."  61 STAT. 138, 29 U.S.C. 152(22). 

14(A) "NOTHING HEREIN SHALL PROHIBIT ANY INDIVIDUAL EMPLOYED AS A
SUPERVISOR FROM BECOMING OR REMAINING A MEMBER OF A LABOR ORGANIZATION,
BUT NO EMPLOYER SUBJECT TO THIS ACT SHALL BE COMPELLED TO DEEM
INDIVIDUALS DEFINED HEREIN AS SUPERVISORS AS EMPLOYEES FOR THE PURPOSE
OF ANY LAW, EITHER NATIONAL OR LOCAL, RELATING TO COLLECTIVE
BARGAINING."  61 STAT. 151, 29 U.S.C. 164(A). 

/2/  THOSE SECTIONS PROVIDE: 

"95 - 81.  NONMEMBERSHIP AS CONDITION OF EMPLOYMENT PROHIBITED.--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."  N.C. GEN. STAT. 92 - 81
(1965). 

"95 - 83.  RECOVERY OF DAMAGES BY PERSONS DENIED EMPLOYMENT --ANY
PERSON WHO MAY BE DENIED EMPLOYMENT OR BE DEPRIVED OF CONTINUATION OF
HIS EMPLOYMENT IN VIOLATION OF 95 - 80, 95 - 81 AND 95 - 82 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
STATE SUCH DAMAGES AS HE MAY HAVE SUSTAINED BY REASON OF SUCH DENIAL OR
DEPRIVATION OF EMPLOYMENT."  N.C. GEN. STAT. 95 - 83 (1965).     /3/
THE POSITION OF THE GENERAL COUNSEL WAS UNEQUIVOCALLY SET FORTH IN THE
LETTER OF DENIAL, QUOTE BY THE NORTH CAROLINA COURT OF APPEALS:  "YOUR
APPEAL IN THE ABOVE MATTER HAS BEEN DULY CONSIDERED.  THE APPEAL IS
DENIED.  THE FOUR ALLEGED DISCRIMINATEES INVOLVED HEREIN WERE
SUPERVISORS WITHIN THE MEANING OF SECTION 2 (11) OF THE ACT AND HENCE
WERE NOT ENTITLED, IN THE CIRCUMSTANCES HEREIN, TO THE PROTECTION OF
THE ACT."  15 N.C. APP. 323, 325, 190 S.E. 2D 333, 334 (1972). 

/4/  THE BOARD INITIALLY HELD THAT SUPERVISORS MAY ORGANIZE IN
INDEPENDENT OR AFFILIATED UNIONS, UNION COLLIERIES COAL CO., 41
N.L.R.B. 961 (1942); GODCHAUX SUGARS, INC., 44 N.L.R.B. 874 (1942). 
THEN, FOLLOWING INTRODUCTION OF PROPOSED CORRECTIVE LEGISLATION, SEE
H.R. REP. NO. 245, 80TH CONG., 1ST SESS., 13 (1947), THE BOARD
ANNOUNCED THAT IT WOULD NOT FIND ANY ORGANIZATION OF SUPERVISORS AN
APPROPRIATE BARGAINING UNIT, MARYLAND DRYDOCK CO., 49 N.L.R.B. 733
(1943).  FINALLY, IN PACKARD MOTOR CO., 61 N.L.R.B. 4 (1945), THE BOARD
REVERTED TO ITS INITIAL POSITION. 

/5/  ALTHOUGH H.R. 3020 LACKD A COUNTERPART TO 14 (A) IN S. 1126, IT
CONTAINED A MORE DETAILED, AND EXPANSIVE, DEFINITION OF "SUPERVISOR,"
INCLUDING INDIVIDUALS WITH "HIRE-TO-FIRE" AUTHORITY, THOSE WHO WORKED
IN "LABOR RELATIONS, PERSONNEL, EMPLOYMENT, POLICE, OR TIME-STUDY
MATTERS . . . OR WHO (ARE) EMPLOYED TO ACT IN OTHER RESPECTS FOR THE
EMPLOYER IN DEALING WITH OTHER INDIVIDUALS EMPLOYED BY THE EMPLOYER,"
AND THOSE WITH ACCESS TO INFORMATION "OF A CONFIDENTIAL NATURE."  101,
AMENDING 2 (12) OF NLRA, H.R. 3020, 80TH CONG., 1ST SESS. (1947). 

ASIDE FROM THE USE OF THE SENATE'S PROPOSALS FOR 2 (3), 2 (11), AND
14(A) IN THE FINAL AMENDMENTS, THE ONLY PERTINENT CONGRESSIONAL ACTION
DURING PASSAGE WAS THE ADDITION OF THE WORDS "OR RESPONSIBILITY TO
DIRECT THEM" TO 2 (11) ON THE FLOOR OF THE SENATE.  93 CONG. REC. 4577
4578 (1947). 

/6/  THE LEGISLATIVE HISTORY IS DETERMINATIVE OF ANY CONTENTION THAT
A DIFFERENT RULE SHOULD BE APPLIED FOR UNIONS COMPOSED ENTIRELY OF
SUPERVISORS, ON THE ONE HAND, AND FOR UNIONS OF THE RANK AND FILE AS
WELL AS SUPERVISORS, ON THE OTHER.  THE HOUSE REPORT EMPHATICALLY
STATED: 

"IF MANAGEMENT IS TO BE FREE TO MANAGE AMERICAN INDUSTRY AS IN THE
PAST AND TO PRODUCE THE GOODS ON WHICH DEPENDS OUR STRENGTH IN WAR AND
OUR STANDARD OF LIVING ALWAYS, THEN CONGRESS MUST EXCLUDE FOREMEN FROM
THE OPERATION OF THE LABOR ACT, NOT ONLY WHEN THEY ORGANIZE INTO UNIONS
OF THE RANK AND FILE AND INTO UNIONS AFFILIATED WITH THOSE OF THE RANK
AND FILE, BUT ALSO WHEN THEY ORGANIZE INTO UNIONS THAT CLAIM TO BE
INDEPENDENT OF THE UNIONS OF THE RANK AND FILE."  H.R. REP. NO. 245,
80TH CONG., 1ST SESS., 15 (1947) (EMPHASIS IN ORIGINAL.)  THE SENATE
REPORT DISPLAYS EQUALLY CAREFUL CONSIDERATION AND FIRM REJECTION OF
SUCH A DISTINCTION: 

"BEFORE FORMULATING THIS DEFINITION (IN 2 (11)), THE COMMITTEE
CONSIDERED A PROPOSAL, OCCASIONALLY ADVANCED, WHICH WOULD HAVE LIMITED
THE PROTECTION OF FOREMEN TO JOINING OR ORGANIZING UNIONS WHOSE
MEMBERSHIP WAS CONFINED TO SUPERVISORY PERSONNEL AND NOT AFFILIATED
WITH EITHER OF THE MAJOR LABOR FEDERATIONS.  AFTER CONSIDERABLE
DISCUSSION, THE COMMITTEE DECIDED THAT ANY SUCH COMPROMISE WOULD BE
COMPLETELY UNREALISTIC.  THERE IS NOTHING IN THE RECORD DEVELOPED
BEFORE THIS COMMITTEE TO JUSTIFY THE CONCLUDION THAT THERE IS SUCH A
THING AS A REALLY INDEPENDENT FOREMEN'S ORGANIZATION."  S. REP. NO.
105, 80TH CONG., 1ST SESS., 4 (1947). 

/7/  PETITIONERS ALSO ARGUE THAT 14 (B) SUPPORTS THEIR CONTENTION. 
THAT SECTION PROVIDES THAT "(NOTHING IN THIS ACT 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."  THE SECTION OBVIOUSLY HAS NO RELEVANCY
TO THE PROVISIONS OF 95 - 81 AND 95 - 83.  IT IS RELEVANT PRIMARILY TO
95 - 79, WHICH DECLARES ILLEGAL CERTAIN AGREEMENTS MAKING UNION
MEMBERSHIP A CONDITION OF EMPLOYMENT.  SEE RETAIL CLERKS V.
SCHERMERHORN, 373 U.S. 746 AND 375 U.S. 96 (1963); ALGOMA PLYWOOD CO.
V. WISCONSIN BOARD, 336 U.S. 301 (1949). 

LARRY L. EUBANKS ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONERS. 

RALPH M. STOCKTON, JR., ARGUED THE CASUE FOR RESPONDENTS.  WITH HIM
ON THE BRIEF WERE J. ROBERT ELSTER AND JAMES H. KELLY, JR.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY
SOLICITOR GENERAL BORK, PETER G. NASH, JOHN S. IRVING, PATRICK HARDIN,
AND NORTON J. COME FOR THE NATIONAL LABOR RELATIONS BOARD, AND BY JAMES
M. MILES FOR ASSOCIATED INDUSTRIES, INC., ET AL.
..END :
















CALERO-TOLEDO V. PEARSON YACHT LEASING CO., 416 U.S. 663 


       CALERO-TOLEDO ET AL. V. PEARSON YACHT LEASING CO.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF PUERTO RICO

        NO. 73 - 157.  AUGUED JANUARY 7, 1974--DECIDED MAY 15,
1974;

   (363 F. SUPP. 1337, REVERSED.) 


    A PLEASURE YACHT, WHICH APPELLEE HAD LEASED TO PUERTO RICAN

  RESIDENTS, WAS SEIZED, PURSUANT TO PUERTO RICAN STATUTES

  PROVIDING FOR FORFEITURE OF VESSELS USED FOR UNLAWFUL PURPOSES,

  WITHOUT PRIOR NOTICE TO APPELLEE OR THE LESSEES AND WITHOUT A

  PRIOR ADVERSARY HEARING, AFTER AUTHORITIES HAD DISCOVERED

  MARIHUANA ABOARD HER.  APPELLEE WAS NEITHER INVOLVED IN NOR AWARE

  OF THE LESSEES'  WRONGFUL USE OF THE YACHT.  APPELLEE THEN

  BROUGHT SUIT CHALLENGING THE CONSTITUTIONALITY OF TE STATUTORY

  SCHEME.  A THREE-JUDGE DISTRICT COURT, RELYING PRINCIPALLY ON

  FUENTES V. SHEVIN, 407 U.S. 67, HELD THAT THE STATUTES' FAILURE

TO PROVIDE FOR PRESEIZURE NOTICE AND HEARING RENDERED THEM

 UNCONSTITUTIONAL AND THAT, AS APPLIED TO FORFEIT APPELLEE'S

  INTEREST IN THE YACHT, THEY UNCONSTITUTIONALLY DEPRIVED AN

  INNOCENT PARTY OF PROPERTY WITHOUT JUST COMPENSATION.  HELD: 

     1.  THE STATUTES OF PUERTO RICO ARE "STATE STATETES)" FOR

  PURPOSES OF THE THREE-JUDGE COURT ACT, AND HENCE A THREE-JUDGE

  COURT WAS PORPERLY CONVENED UNDER THAT ACT AND DIRECT APPEAL TO

  THIS COURT WAS PROPER UNDER 28 U.S.C. 1253.  PP. 669 - 676. 

     2.  THIS CASE PRESENTS AN "EXTRAORDINARY" SITUATION IN WHICH

  POSTPONEMENT OF NOTICE AND HEARING UNTIL AFTER SEIZURE DID NOT

  DENY DUE PROCESS, SINCE (1) SEIZURE UNDER THE STATUTES SERVES

SIGNIFICANT GOVERNMENTAL PURPOSES BY PERMITTING PUERTO RICO TO

  ASSERT IN REM JURISDICTION OVER THE PROPERTY IN FORFEITURE

  PROCEEDINGS, THEREBY FOSTERING THE PUBLIC INTEREST IN PREVENTING

  CONTINUED ILLICIT USE OF THE PROPERTY AND IN ENFORCING CRIMINAL

  SANCTIONS; (2) PRESEIZURE NOTICE AND HEARING MIGHT FRUSTRATE THE

  INTERESTS SERVED BY THE STATUTES, THE PROPERTY SEIZED OFTEN BEING

  OF THE SORT, AS HERE, THAT COULD BE REMOVED FROM THE

  JURISDICTION, DESTROYED, OR CONCEALED, IF ADVANCE NOTICE WERE

  GIVEN; AND (3), UNLIKE THE SITUATION IN FUENTES V. SHEVIN, SUPRA,

  SEIZURE IS NOT INITIATED BY SELF-INTERESTED PRIVATE PARTIES BUT

 BY GOVERNMENT OFFICIALS.  PP. 676 - 680. 

     3.  STATUTORY FORFEITURE SCHEMES ARE NOT RENDERED

  UNCONSITUTITIONAL BECAUSE OF THEIR APPLICABILITY TO THE PROPERTY

  INTERESTS OF INNOCENTS, AND HERE THE PUERTO RICAN STATUTES, WHICH

  FURTHER PUNITIVE AND DETERRENT PURPOSES, WERE VALIDLY APPLIED TO

  APPELLEE'S YACHT. 

PP. 680 - 690. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

BURGER, C.J., AND WHITE, MARSHALL, BLACKMUN, POWELL, AND

REHNQIST, JJ., JOINED, AND IN PARTS I AND II OF WHICH STEWART,

  J., JOINED.  WHITE, J., FILED A CONCURRING OPINION, IN WHICH

  POWELL, J., JOINED, POST, P. 691.  STEWART, J., FILED A SEPARATE

  STATEMENT, POST, P. 690.  DOUGLAS, J., FILED AN OPINION

  DISSENTING IN PART, IN WHICH STEWART, J., JOINED IN PART,

  POST.  P. 691. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT 

THE QUESTION PRESENTED IS WHETHER THE CONSTITUTION IS VIOLATED BY
APPLICATION TO APPELLEE, THE LESSOR OF A YACHT, OF PUERTO RICAN
STATUTES PROVIDING FOR SEIZURE AND FORFEITURE OF VESSELS USED FOR
UNLAWFUL PURPOSES WHEN (1) THE YACHT WAS SEIZED WITHOUT PRIOR NOTICE OR
HEARING AFTER ALLEGEDLY BEING USED BY A LESSEE FOR AN UNLAWFUL PURPOSE,
AND (2) THE APPELLEE WAS NEITHER INVOLVED IN NOR AWARE OF THE ACT OF
THE LESSEE WHICH RESULTED IN THE FORFEITURE. 

IN MARCH 1971, APPELLEE, PEARSON YACHT LEASING CO., LEASED A PLEASURE
YACHT TO TWO PUERTO RICAN RESIDENTS.  PUERTO RICAN AUTHORITIES
DISCOVERED MARIHUANA ON BOARD THE YACHT IN EARLY MAY 1972 AND CHARGED
ONE OF THE LESSEES WITH VIOLATION OF THE CONTROLLED SUBSTANCES ACT OF
PUERTO RICO, P.R. LAWS ANN., TIT. 24, 2101 ET SEQ. (SUPP. 1973).  ON
JULY 11, 1972, THE SUPERINTENDENT OF POLICE SEIZED THE YACHT PURSUANT
TO P.R. LAWS ANN., TIT. 24, 2512 (A)(4), (B) (SUPP. 1973), /1/  AND
TIT. 34, 1722 (1971), /2/  WHICH PROVIDE THAT VESSELS USED TO
TRANSPORT, OR TO FACILITATE THE TRANSPORTATION OF, CONTROLLED
SUBSTANCES, INCLUDING MARIHUANA, ARE SUBJECT TO SEIZURE AND FORFEITURE
TO THE COMMONWEALTH OF PUERTO RICO.  THE VESSEL WAS SEIZED WITHOUT
PRIOR NOTICE TO APPELLEE OR EITHER LESSEE AND WITHOUT A PRIOR ADVERSARY
HEARING.  THE LESSEE, WHO HAD REGISTERED THE YACHT WITH THE PORTS
AUTHORITY OF THE COMMONWEALTH, WAS THEREAFTER GIVEN NOTICE WITHIN 10
DAYS OF THE SEIZURE, AS REQUIRED BY 1722 (A).  /3/  BUT WHEN A
CHALLENGE TO THE SEIZURE WAS NOT MADE WITHIN 15 DAYS AFTER SERVICE OF
THE NOTICE, THE YACHT WAS FORFEITED FOR OFFICIAL USE OF THE GOVERNMENT
OF PUERTO RICO PURSUANT TO 1722(C).  /4/  APPELLEE SHORTLY THEREAFTER
FIRST LEARNED OF THE SEIZURE AND FORFEITURE WHEN ATTEMPTING TO
REPOSSESS THE YACHT FROM THE LESSEES, BECAUSE OF THEIR APPARENT FAILURE
TO PAY RENT.  IT IS CONCEDED THAT APPELLEE WAS "IN NO WAY . . .
INVOLVED IN THE CRIMINAL ENTERPRISE CARRIED ON BY (THE) LESSEE" AND
"HAD NO KNOWLEDGE THAT ITS PROPERTY WAS BEING USED IN CONNECTION WITH
OR IN VIOLATION OF (PUERTO RICAN LAW)." 

ON NOVEMBER 9, 1972, APPELLEE FILED THIS SUIT, SEEKING A DECLARATION
THAT APPLICATION OF P.R. LAWS ANN., TIT. 24, 2512 (A) (4), (B) AND TIT.
34, 1722, HAD (1) UNCONSTITUTIONALLY DENIED IT DUE PROCESS OF LAW
INSOFAR AS THE STATUTES AUTHORIZED APPELLANTS, THE SUPERINTENDENT OF
POLICE AND THE CHIEF OF THE OFFICE OF TRANSPORTATION OF THE
COMMONWEALTH, TO SEIZE THE YACHT WITHOUT NOTICE OR A PRIOR ADVERSARY
HEARING, AND (2[ UNCONSTITUTIONALLY DEPRIVED APPELLEE OF ITS PROPERTY
WITHOUT JUST COMPENSATION.  /5/  INJUNCTIVE RELIEF WAS ALSO SOUGHT. 

A THREE-JUDGE DISTRICT COURT, /6/  RELYING PRINCIPALLY UPON FUENTES
V. SHEVIN, 407 U.S. 67 (1972), HELD THAT THE FAILURE OF THE STATUTES TO
PROVIDE FOR PRESEIZURE NOTICE AND HEARING RENDERED THEM
CONSTITUTIONALLY DEFECTIVE.  363 F. SUPP. 1337, 1342 - 1343 (PR 1973). 
VIEWING UNITED STATES V. UNITED STATES COIN & CURRENCY, 401 ULSL 715
(1971), AS HAVING EFFECTIVELY OVERRULED OUR PRIOR DECISIONS THAT THE
PROPERTY OWNER'S INNOCENCE HAS NO CONSTITUTIONAL SIGNIFICANCE FOR
PURPOSES OF FORFEITURE, THE DISTRICT COURT FURTHER DECLARED THAT THE
PUERTO RICAN STATUTES, INSOFAR AS APPLIED TO FORFEIT APPELLEE'S
INTEREST IN THE YACHT, UNCONSTITUTIONALLY DEPRIVED IT OF PROPERTY
WITHOUT JUST COMPENSATION.  363 F. SUPP., AT 1341 - 1342.  APPELLANTS
WERE ACCORDINGLY ENJOINED FROM ENFORCING THE STATUTES "INSOFAR AS THEY
DENY THE OWNER OR PERSON IN CHARGE OF PROPERTY AN OPPORTUNITY FOR A
HEARING DUE TO THE LACK OF NOTICE, BEFORE THE SEIZURE AND FORFEITURE OF
ITS PROPERTY AND INSOFAR AS A PENALTY IS IMPOSED UPON INNOCENT
PARTIES."  ID., AT 1343 - 1344.  WE NOTED PROBABLE JURISDICTION.  414
U.S. 816 (1973).  WE REVERSE. 

      I 

ALTHOUGH THE PARTIES CONSENTED TO THE CONVENING OF THE THREE-JUDGE
COURT AND HENCE DO NOT CHALLENGE OUR JURISDICTION TO DECIDE THIS DIRECT
APPEAL, WE NEVERTHELESS MAY NOT ENTERTAIN THE APPEAL UNDER 28 U.S.C.
1253 /7/  UNLESS STATUTES OF PUERTO RICO ARE "STATE STATUTES)" FOR
PURPOSES OF THE THREE-JUDGE COURT ACT, 28 U.S.C. 2281.  /8/  WE
THEREFORE TURN FIRST TO THAT QUESTION. 

IN STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368 (1949), THIS COURT
HELD THAT ENACTMENTS OF THE TERRITORY OF HAWAII WERE NOT "STATE
STATUTES)" FOR PURPOSES OF JUDICIAL CODE 266, THE PREDECESSOR TO 28
U.S.C. 2281, REASONING: 

"WHILE, OF COURSE, GREAT RESPECT IS TO BE PAID TO THE

ENACTMENTS OF A TERRITORIAL LEGISLATURE BY ALL COURTS AS IT IS TO

  THE ADJUDICATIONS OF TERRITORIAL COURTS, THE PREDOMINANT REASON

  FOR THE ENACTMENT OF JUDICIAL CODE 266 DOES NOT EXIST AS RESPECTS

  TERRITORIES.  THIS REASON WAS A CONGRESSIONAL PURPOSE TO AVOID

  UNNECESSARY INTERFERENCE WITH THE LAWS OF A SOVEREIGN STATE.  IN

  OUR DUAL SYSTEM OF GOVERNMENT, THE POSITION OF THE STATE AS

  SOVEREIGN OVER MATTERS NOT RULED BY THE CONSTITUTION REQUIRES A

  DEFERENCE TO STATE LEGISLATIVE ACTION BEYOND THAT REQUIRED FOR

THE LAWS OF A TERRITORY.  A TERRITORY IS SUBJECT TO CONGRESSIONAL

  REGULATION."  336 U.S., AT 377 - 378 (FOOTNOTES OMITTED)

  (EMPHASIS ADDED). 

SIMILAR REASONING--THAT THE PURPOSE OF INSULATING A SOVEREIGN STATE'S
LAWS FROM INTERFERENCE BY A SINGLE JUDGE WOULD NOT BE FURTHERED BY
BROADLY INTERPRETING THE WORD "STATE"--LED THE COURT OF APPEALS FOR THE
FIRST CIRCUIT SOME 55 YEARS AGO TO HOLD 266 INAPPLICABLE TO THE LAWS OF
THE TERRITORY OF PUERTO RICO.  BENEDICTO V. WEST INDIA PANAMA TEL. CO.,
256 F. 417 (1919). 

CONGRESS, HOWEVER, CREATED THE COMMONWEALTH OF PUERTO RICO AFTER
BENEDICTO WAS DECIDED.  FOLLOWING THE SPANISH-AMERICAN WAR, PUERTO RICO
WAS CEDED TO THIS COUNTRY IN THE TREATY OF PARIS, 30 STAT. 1754
(1898).  A BRIEF INTERLUDE OF MILITARY CONTROL WAS FOLLOWED BY
CONGRESSIONAL ENACTMENT OF A SERIES OF ORGANIC ACTS FOR THE GOVERNMENT
OF THE ISLAND.  INITIALLY THESE ENACTMENTS ESTABLISHED A LOCAL
GOVERNMENTAL STRUCTURE WITH HIGH OFFICIALS APPOINTED BY THE PRESIDENT. 
THESE ACTS ALSO RETAINED VETO POWER IN THE PRESIDENT AND CONGRESS OVER
LOCAL LEGISLATION.  BY 1950, HOWEVER, PRESSURES FOR GREATER AUTONOMY
LED TO CONGRESSIONAL ENACTMENT OF PUB. L. 600, 64 STAT. 319, WHICH
OFFERED THE PEOPLE OF PUERTO RICO A COMPACT WHEREBY THEY MIGHT
ESTABLISH A GOVERNMENT UNDER THEIR OWN CONSTITUTION.  PUERTO RICO
ACCEPTED THE COMPACT, AND ON JULY 3, 1952, CONGRESS APPROVED, WITH
MINOR AMENDMENTS, A CONSTITUTION ADOPTED BY THE PUERTO RICAN POPULACE,
66 STAT. 327; SEE NOTE ACCOMPANYING 48 U.S.C. 731D.  PURSUANT TO THAT
CONSTITUTION THE COMMONWEALTH NOW "ELECTS ITS GOVERNOR AND LEGISLATURE;
APPOINTS ITS JUDGES, ALL CABINET OFFICIALS, AND LESSER OFFICIALS IN THE
EXECUTIVE BRANCH; SETS ITS OWN EDUCATIONAL POLICIES; DETERMINES ITS OWN
BUDGET; AND AMENDS ITS OWN CIVIL AND CRIMINAL CODE."  LEIBOWITZ, THE
APPLICABILITY OF FEDERAL LAW TO THE COMMONWEALTH OF PUERTO RICO, 56
BEO.  L.J. 219, 221 (1967); SEE 28 DEPT. OF STATE BULL.  584 - 589
(1953); AMERICANA OF PUERTO RICO, INC. V. KAPLUS, 368 F.2D 431 (CA3
1966); MAGRUDER, THE COMMONWEALTH STATUS OF PUERTO RICO, 15 U. PITT. 
L. REV. 1 (1953). 

THESE SIGNIFICANT CHANGES IN PUERTO RICO'S GOVERNMENTAL STRUCTURE
FORMED THE BACKDROP TO JUDGE MAGRUDER'S OBSERVATIONS IN MORA V. MEJIAS,
206 R.2D 377 (CA1 1953): 

"(IT MAY BE THAT THE COMMONWEALTH OF PUERTO RICO--'EL ESTADO LIBRE
ASOCIADO DE PUERTO RICO' IN THE SPANISH VERSION--ORGANIZED AS A BODY
POLITIC BY THE PEOPLE OF PUERTO RICO UNDER THEIR OWN CONSTITUTION,
PURSUANT TO THE TERMS OF THE COMPACT OFFERED TO THEM IN PUB. L. 600,
AND BY THEM ACCEPTED, IS A STATE WITHIN THE MEANING OF 28 U.S.C. 2281. 
THE PREAMBLE TO THIS CONSTITUTION REFERS TO THE COMMONWEALTH . . .
WHICH 'IN THE EXERCISE OF OUR NATURAL RIGHTS, WE (THE PEOPLE OF PUERTO
RICO) NOW CREATE WITHIN OUR UNION WITH THE UNITED STATES OF AMERICA.' 
PUERTO RICO HAS THUS NOT BECOME A STATE IN THE FEDERAL UNION LIKE THE
48 STATES, BUT IT WOULD SEEM TO HAVE BECOME A STATE WITHIN A COMMON AND
ACCEPTED MEANING OF THE WORD.  CF. STATE OF TEXAS V. WHITE, 1868, 7
WALL.  700, 721.  . . . IT IS A POLITICAL ENTITY CREATED BY THE ACT AND
WITH THE CONSENT OF THE PEOPLE OF PUERTO RICO AND JOINED IN UNION WITH
THE UNITED STATES OF AMERICA UNDER THE TERMS OF THE COMPACT. 

"A SERIOUS ARGUMENT COULD THEREFORE BE MADE THAT THE

  COMMONWEALTH OF PUERTO RICO IS A STATE WITHIN THE INTENDMENT AND

  POLICY OF 28 U.S.C. 2281 . . . . IF THE CONSTITUTION OF THE

  COMMONWEALTH OF PUERTO RICO, IS REALLY A 'CONSTITUTION' --AS THE

  CONGRESS SAYS IT IS, 66 STAT. 327,--AND NOT JUST ANOTHER ORGANIC

  ACT APPROVED AND ENACTED BY THE CONGRESS, THEN THE QUESTION IS

  WHETHER THE COMMONWEALTH OF PUERTO RICO IS TO BE DEEMED

  'SOVEREIGN OVER MATTERS NOT RULED BY THE CONSTITUTION' OF THE

  UNITED STATES AND THUS A 'STATE' WITHIN THE POLICY OF 28 U.S.C.

  2281, WHICH ENACTMENT, IN PRESCRIBING A THREE-JUDGE FEDERAL

  DISTRICT COURT, EXPRESSES 'A DEFERENCE TO STATE LEGISLATIVE

  ACTION BEYOND THAT REQUIRED FOR THE LAWS OF A TERRITORY'

  (STAINBACK V. MO HOCK KE LOK PO, 336 U.S., AT 378) WHOSE LOCAL

AFFAIRS ARE SUBJECT TO CONGRESSIONAL REGULATION."  206 F.2D, AT

  387 - 388 (FOOTNOTE OMITTED). 

LOWER FEDERAL COURTS SINCE 1953 HAVE ADOPTED THIS ANALYSIS AND
CONCLUDED THAT PUERTO RICO IS TO BE DEEMED "SOVEREIGN OVER MATTERS NOT
RULED BY THE CONSTITUTION"  AND THUS A STATE WITHIN THE POLICY OF THE
THREE-JUDGE COURT ACT.  SEE MORA V. MEJIAS, 115 F. SUPP. 610 (PR 1962);
/9/  MARIN V. UNIVERSITY OF PUERTO RICO, 346 F. SUPP. 470, 481 (PR
1972); SUAREZ V. ADMINISTRADOR DEL DEPORTE HIPICO DE PUERTO RICO, 354
F. SUPP. 320 (PR 1972).  AND IN WACKENGUT CORP. V. APONTE, 386 U.S. 268
(1967), WE SUMMARILY AFFIRMED THE DECISION OF A THREE-JUDGE COURT FOR
THE DISTRICT OF PUERTO RICO THAT HAD ORDERED ABSTENTION AND SAID: 

"(APPLICATION OF THE DOCTRINE OF ABSTENTION IS PARTICULARLY
APPROPRIATE IN A CASE . . . INVOLVING) THE CONSTRUCTION AND VALIDITY OF
A STATUTE OF THE COMMONWEALTH OF PUERTO RICO.  FOR A DUE REGARD FOR THE
STATUS OF THAT COMMONWEALTH UNDER ITS COMPACT WITH THE CONGRESS OF THE
UNITED STATES DICTATES, WE BELIEVE, THAT IT SHOULD HAVE THE PRIMARY
OPPORTUNITY THROUGH ITS COURTS TO DETERMINE THE INTENDED SCOPE OF ITS
OWN LEGISLATION AND TO PASS UPON THE VALIDITY OF THAT LEGISLATION UNDER
ITS OWN CONSTITUTION AS WELL AS UNDER THE CONSTITUTION OF THE UNITED
STATES."  266 F. SUPP. 401, 405 (1966).  ALTHOUGH THE QUESTION OF
PUERTO RICO'S STATUS UNDER 28 U.S.C. 2281 WAS RAISED IN NEITHER THE
JURISDICTIONAL STATEMENT NOR THE MOTION TO AFFIRM IN WACHENHUT, AND WE
DO NOT NORMALLY FEEL OURSELVES BOUND BY A SUB SILENTIO EXERCISE OF
JURISDICTION, SEE HAGANS V. LAVINE, 415 U.S. 528, 533 - 535, N. 5
(1974); UNITED STATES V. MORE, 3 CRANCH 159, 172 (1805), THIS COURT HAS
NOTED THAT IN THREE-JUDGE COURT CASES, "WHERE . . . THE RESPONSIBILITY
(IS) ON THE COURTS TO SEE THAT THE THREE-JUDGE RULE (IS) FOLLOWED,"
UNEXPLAINED ACTION MAY TAKE ON ADDED SIGNIFICANCE.  STAINBACK V. MO
HOCK KE LOK PO, 336 U.S., AT 379 - 380.  THIS IS PARTICULARLY SO, WHEN
AS IN WACKENHUT, THE OPINION SUPPORTING THE JUDGMENT OVER WHICH WE
EXERCISED APPELLATE JURISDICTION HAD EXPRESSED THE VIEW THAT ABSTENTION
WAS APPROPRIATE FOR REASONS OF COMITY, AN OFT-REPEATED JUSTIFICATION
FOR THE ABSTENTION DOCTRINE, SEE, E.G., RAILROAD COMM'N OF TEXAS V.
PULLMAN CO., 312 U.S. 496, 500 (1941).  /10/  AS WELL AS THE PRINCIPAL
UNDERPINNING OF THE THREE-JUDGE COURT ACT.  SEE STEFFEL V. THOMPSON,
415 U.S. 452, 465 - 466 (1974). 

WHILE STILL OF THE VIEW THAT 2281 IS NOT "A MEASURE OF BROAD SOCIAL
POLICY TO BE CONSTRUED WITH GREAT LIBERALITY,"  PHILLIPS V. UNITED
STATES, 312 U.S. 246, 251 (1941), WE BELIEVE THAT THE ESTABLISHED
FEDERAL JUDICIAL PRACTICE OF TREATING ENACTMENTS OF THE COMMONWEALTH OF
PUERTO RICO AS "STATE STATUTES)" FOR PURPOSES OF THE THREE-JUDGE COURT
ACT, SERVES, AND DOES NOT EXPAND, THE PURPOSES OF 2281.  WE THEREFORE
HOLD THAT A THREE-JUDGE COURT WAS PROPERLY CONVENED UNDER THAT STATUTE,
/11/  AND THAT DIRECT APPEAL TO THIS COURT WAS PROPER UNDER 28 U.S.C.
1253.  ACCORDINGLY, WE NOW TURN TO THE MERITS. 

        II 

APPELLANTS CHALLENGE THE DISTRICT COURT'S HOLDING THAT THE APPELLEE
WAS DENIED DUE PROCESS OF LAW BY THE OMISSION FROM 2512 (B), AS IT
INCORPORATES 1722, OF PROVISIONS FOR PRESEIZURE NOTICE AND HEARING. 
THEY ARGUE THAT SEIZURE FOR PURPOSES OF FORFEITURE IS ONE OF THOSE
"'EXTRAORDINARY SITUATIONS' THAT JUSTIFY POSTPONING NOTICE AND
OPPORTUNITY FOR A HEARING."  FUENTES V. SHEVIN, 407 U.S., AT 90; SEE
SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337, 339 (1969); BODDIE V.
CONNECTICUT, 401 U.S. 371, 378 - 379 (1971).  WE AGREE.  /12/ 

IN HOLDING THAT LACK OF PRESEIZURE NOTICE AND HEARING DENIED DUE
PROCESS, THE DISTRICT COURT RELIED PRIMARILY UPON OUR DECISION IN
FUENTES V. SHEVIN, SUPRA.  FUENTED INVOLVED THE VALIDITY OF FLORIDA AND
PENNSYLVANIA REPLEVIN STATUTES PERMITTING CREDITORS TO SEIZE GOODS
ALLEGEDLY WRONGFULLY DETAINED.  A WRIT OF REPLEVIN COULD BE OBTAINED
UNDER THE FLORIDA STATUTE UPON THE CREDITOR'S BARE ASSERTION TO A COURT
CLERK THAT HE WAS ENTITLED TO THE PROPERTY, AND UNDER THE PENNSYLVANIA
STATUTE, UPON FILING AN AFFIDAVIT FIXING THE VALUE OF THE PROPERTY,
WITHOUT ALLEGING LEGAL ENTITLEMENT TO THE PROPERTY.  FUENTES HELD THAT
THE STATUTORY PROCEDURES DEPRIVED DEBTORS OF THEIR PROPERTY WITHOUT DUE
PROCESS BY FAILING TO PROVIDE FOR HEARINGS "'AT A MEANINGFUL TIME.'" 
407 U.S., AT 80. 

FUENTES REAFFIRMED, HOWEVER, THAT, IN LIMITED CIRCUMSTANCES,
IMMEDIATE SEIZURE OF A PROPERTY INTEREST, WITHOUT AN OPPORTUNITY FOR
PRIOR HEARING, IS CONSTITUTIONALLY PERMISSIBLE.  SUCH CIRCUMSTANCES ARE
THOSE IN WHICH     "THE SEIZURE HAS BEEN DIRECTLY NECESSARY TO SECURE
AN IMPORTANT GOVERNMENTAL OR GENERAL PUBLIC INTEREST.  SECOND, THERE
HAS BEEN A SPECIAL NEED FOR VERY PROMPT ACTION.  THIRD, THE STATE HAS
KEPT STRICT CONTROL OVER ITS MONOPOLY OF LEGITIMATE FORCE:  THE PERSON
INITIATING THE SEIZURE HAS BEEN A GOVERNMENT OFFICIAL RESPONSIBLE FOR
DETERMINING, UNDER THE STANDARDS OF A NARROWLY DRAWN STATUTE, THAT IT
WAS NECESSARY THUS, FOR EXAMPLE, DUE PROCESS IS NOT DENIED WHEN

  THUS, FOR EXAMPLE, DUE PROCESS IS NOT DENIED WHEN POSTPONEMENT OF
NOTICE AND HEARING IS NECESSARY TO PROTECT THE PUBLIC FROM CONTAMINATED
FOOD, NORTH AMERICAN STORAGE CO. V. CHICAGO, 211 U.S. 306 (1908)) FROM
A BANK FAILURE, COFFIN BROS. & CO. V. BENNETT, 277 U.S. 29 (1928); FROM
MISBRANDED DRUGS, EWING V. MYTINGER & CASSELBERRY, INC., 339 U.S. 594
(1950); TO AID THE COLLECTION OF TAXES, PHILLIPS V. COMMISSIONER, 283
U.S. 589 (1931); OR TO AID THE WAR EFFORT, UNITED STATES V. PFITSCH,
256 U.S. 547 (1921). 

THE CONSIDERATIONS THAT JUSTIFIED POSTPONEMENT OF NOTICE AND HEARING
IN THOSE CASES ARE PRESENT HERE.  FIRST, SEIZURE UNDER THE PUERTO RICAN
STATUTES SERVES SIGNIFICANT GOVERNMENTAL PURPOSES:  SEIZURE PERMITS
PUERTO RICO TO ASSERT IN REM JURISDICTION OVER THE PROPERTY IN ORDER TO
CONDUCT FORFEITURE PROCEEDINGS, /13/  THEREBY FOSTERING THE PUBLIC
INTEREST IN PREVENTING CONTINUED ILLICIT USE OF THE PROPERTY AND IN
ENFORCING CRIMINAL SANCTIONS.  SECOND, PRESEIZURE NOTICE AND HEARING
MIGHT FRUSTRATE THE INTERESTS SERVED BY THE STATUTES, SINCE THE
PROPERTY SEIZED--AS HERE, A YACHT--WILL OFTEN BE OF A SORT THAT COULD
BE REMOVED TO ANOTHER JURISDICTION, DESTROYED, OR CONCEALED, IF ADVANCE
WARNING OF CONFISCATION WERE GIVEN.  AND FINALLY, UNLIKE THE SITUATION
IN FUENTES, SEIZURE IS NOT INITIATED BY SELF-INTERESTED PRIVATE
PARTIES; RATHER, COMMONWEALTH OFFICIALS DETERMINE WHETHER SEIZURE IS
APPROPRIATE UNDER THE PROVISIONS OF THE PUERTO RICAN STATUTES.  /14/
IN THESE CIRCUMSTANCES, WE HOLD THAT THIS CASE PRESENTS AN
"EXTRAORDINARY" SITUATION IN WHICH POSTPONEMENT OF NOTICE AND HEARING
UNTIL AFTER SEIZURE DID NOT DENY DUE PROCESS.  /15/

     III 

APPELLANTS NEXT ARGUE THAT THE DISTRICT COURT ERRED IN HOLDING THAT
THE FORFEITURE STATUTES UNCONSTITUTIONALLY AUTHORIZED THE TAKING FOR
GOVERNMENT USE OF INNOCENT PARTIES' PROPERTY WITHOUT JUST
COMPENSATION.  THEY URGE THAT A LONG LINE OF PRIOR DECISIONS OF THIS
COURT ESTABLISH THE PRINCIPLE THAT STATUTORY FORFEITURE SCHEMES ARE NOT
RENDERED UNCONSTITUTIONAL BECAUSE OF THEIR APPLICABILITY TO THE
PROPERTY INTERESTS OF INNOCENTS, AND FURTHER THAT UNITED STATES V.
UNITED STATES COIN & CURRENCY, 401 U.S. 715 (1971), DID NOT--CONTRARY
TO THE OPINION OF THE DISTRICT COURT--OVERRULE THOSE PRIOR PRECEDENTS
SUB SILENTIO.  WE AGREE.  THE HISTORICAL BACKGROUND OF FORFEITURE
STATUTES IN THIS COUNTRY AND THIS COURT'S PRIOR DECISIONS SUSTAINING
THEIR CONSTITUTIONALITY LEAD TO THAT CONCLUSION. 

AT COMMON LAW THE VALUE OF AN INANIMATE OBJECT DIRECTLY OR
INDIRECTLY CAUSING THE ACCIDENTAL DEATH OF A KING'S SUBJECT WAS
FORFEITED TO THE CROWN AS A DEODAND.  /16/  THE ORIGINS OF THE DEODAND
ARE TRACEABLE TO BIBLICAL /17/  AND PRE-JUDEO-CHRISTIAN PRACTICES,
WHICH REFLECTED THE VIEW THAT THE INSTRUMENT OF DEATH WAS ACCUSED AND
THAT RELIGIOUS EXPIATION WAS REQUIRED.  SEE O. HOLMES, THE COMMON LAW,
C. 1 (1881).  THE VALUE OF THE INSTRUMENT WAS FORFEITED TO THE KING, IN
THE BELIEF THAT THE KING WOULD PROVIDE THE MONEY FOR MASSES TO BE SAID
FOR THE GOOD OF THE DEAD MAN'S SOUL, OR INSURE THAT THE DEODAND WAS PUT
TO CHARITABLE USES.  1 W. BLACKSTONE, COMMENTARIES *300.  /18/  WHEN
APPLICATION OF THE DEODAND TO RELIGIOUS OR ELEEMOSYNARY PURPOSES
CEASED, AND THE DEODAND BECAME A SOURCE OF CROWN REVENUE, THE
INSTITUTION WAS JUSTIFIED AS A PENALTY FOR CARELESSNESS.  /19/ 

FORFEITURE ALSO RESULTED AT COMMON LAW FROM CONVICTION FOR FELONIES
AND TREASON.  THE CONVICTED FELON FORFEITED HIS CHATTELS TO THE CROWN
AND HIS LANDS ESCHEATED TO HIS LORD; THE CONVICTED TRAITOR FORFEITED
ALL OF HIS PROPERTY, REAL AND PERSONAL, TO THE CROWN.  SEE 3 W.
HOLDSWORTH, HISTORY OF ENGLISH LAW 68 - 71 (3D ED. 1927); 1 F. POLLOCK
& F. MAITLAND, HISTORY OF ENGLISH LAW 351 (2D ED. 1909).  THE BASIS FOR
THESE FORFEITURES WAS THAT A BREACH OF THE CRIMINAL LAW WAS AN OFFENSE
TO THE KING'S PEACE, WHICH WAS FELT TO JUSTIFY DENIAL OF THE RIGHT TO
OWN PROPERTY.  SEE 1 W. BLACKSTONE, COMMENTARIES *299.  /20/ 

IN ADDITION, ENGLISH LAW PROVIDED FOR STATUTORY FORFEITURES OF
OFFENDING OBJECTS USED IN VIOLATION OF THE CUSTOMS AND REVENUE LAWS-
LIKELY A PRODUCT OF THE CONFLUENCE AND MERGER OF THE DEODAND TRADITION
AND THE BELIEF THAT THE RIGHT TO OWN PROPERTY COULD BE DENIED THE
WRONGDOER.  STATUTORY FORFEITURES WERE MOST OFTEN ENFORCED UNDER THE IN
REM PROCEDURE UTILIZED IN THE COURT OF EXCHEQUER TO FORFEIT THE
PROPERTY OF FELONS.  SEE 3 CO. V. MOORE, 318 U.S. 133, 137 - 138
(1943). 

DEODANDS DID NOT BECOME PART OF THE COMMON-LAW TRADITION OF THIS
COUNTRY.  SEE PARKER-HARRIS CO. V. TATE, 135 TENN. 509, 188 S.W. 54
(1916).  NOR HAS FORFEITURE OF ESTATES AS A CONSEQUENCE OF FEDERAL
CRIMINAL CONVICTION BEEN PERMITTED, SEE 18 U.S.C. 3563; REV. STAT. 5326
(1874); 1 STAT. 117 (1790).  FORFEITURE OF ESTATES RESULTING FROM A
CONVICTION FOR TREASON HAS BEEN CONSTITUTIONALLY PROSCRIBED BY ART.
III, 3, THOUGH FORFEITURES OF ESTATES FOR THE LIFETIME OF A TRAITOR
HAVE BEEN SANCTIONED, SEE WALLACH V. VAN RISWICK, 92 U.S. 202 (1876). 
BUT "(LONG BEFORE THE ADOPTION OF THE CONSTITUTION THE COMMON LAW
COURTS IN THE COLONIES--AND LATER IN THE STATES DURING THE PERIOD OF
CONFEDERATION--WERE EXERCISING JURISDICTION IN REM IN THE ENFORCEMENT
OF (ENGLISH AND LOCAL) FORFEITURE STATUTES," C.J. HENDRY CO. V. MOORE,
SUPRA, AT 139, WHICH PROVIDED FOR THE FORFEITURE OF COMMODITIES AND
VESSELS USED IN VIOLATIONS OF CUSTOMS AND REVENUE LAWS.  SEE ID., AT
145 - 148; BOYD V. UNITED STATES 116 U.S. 616, 623 (1886).  AND ALMOST
IMMEDIATELY AFTER ADOPTION OF THE CONSTITUTION, SHIPS AND CARGOES
INVOLVED IN CUSTOMS OFFENSES WERE MADE SUBJECT TO FORFEITURE UNDER
FEDERAL LAW, /21/  AS WERE VESSELS USED TO DELIVER SLAVES TO FOREIGN
COUNTRIES, /22/  AND SOMEWHAT LATER THOSE USED TO DELIVER SLAVES TO
THIS COUNTRY.  /23/  THE ENACTMENT OF FORFEITURE STATUTES HAS NOT
ABATED; CONTEMPORARY FEDERAL AND STATE FORFEITURE STATUTES REACH
VIRTUALLY ANY TYPE OF PROPERTY THAT MIGHT BE USED IN THE CONDUCT OF A
CRIMINAL ENTERPRISE. 

DESPITE THIS PROLIFERATION OF FORFEITURE ENACTMENTS, THE INNOCENCE
OF THE OWNER OF PROPERTY SUBJECT TO FORFEITURE HAS ALMOST UNIFORMLY
BEEN REJECTED AS A DEFENSE.  THUS, MR. JUSTICE STORY OBSERVED IN THE
PALMYRA, 12 WHEAT.  1 (1827), THAT A CONVICTION FOR PIRACY WAS NOT A
PREREQUISITE TO A PROCEEDING TO FORFEIT A SHIP ALLEGEDLY ENGAGED IN
PIRATICAL AGGRESSION IN VIOLATION OF A FEDERAL STATUTE: 

"IT IS WELL KNOWN, THAT AT THE COMMON LAW, IN MANY CASES OF
FELONIES, THE PARTY FORFEITED HIS GOODS AND CHATTELS TO THE CROWN.  THE
FORFEITURE DID NOT, STRICTLY SPEAKING, ATTACH IN REM; BUT IT WAS A
PART, OR AT LEAST A CONSEQUENCE, OF THE JUDGMENT OF CONVICTION . . . .
BUT THIS DOCTRINE NEVER WAS APPLIED TO SEIZURES AND FORFEITURES,
CREATED BY STATUTE, IN REM, COGNIZABLE ON THE REVENUE SIDE OF THE
EXCHEQUER.  THE THING IS HERE PRIMARILY CONSIDERED AS THE OFFENDER, OR
RATHER THE OFFENCE IS ATTACHED PRIMARILY TO THE THING; AND THIS,
WHETHER THE OFFENCE BE MALUM PROHIBITUM, OR MALUM IN SE . . . . (THE
PRACTICE HAS BEEN, AND SO THIS COURT UNDERSTAND THE LAW TO BE, THAT THE
PROCEEDING IN REM STANDS INDEPENDENT OF, AND WHOLLY UNAFFECTED BY ANY
CRIMINAL PROCEEDING IN PERSONAM."  ID., AT 14 - 15.  THIS RATIONALE WAS
RELIED UPON TO SUSTAIN THE STATUTORY FORFEITURE OF A VESSEL FOUND TO
HAVE BEEN ENGAGED IN PIRATICAL CONDUCT WHERE THE INNOCENCE OF THE OWNER
WAS "FULLY ESTABLISHED."  UNITED STATES V. BRIG MALEK, ADHEL, 2 HOW. 
210, 268 (1844).  THE VESSEL WAS "TREATED AS THE OFFENDER," WITHOUT
REGARD TO THE OWNER'S CONDUCT, "AS THE ONLY ADEQUATE MEANS OF
SUPPRESSING THE OFFENCE OR WRONG, OR INSURING AN INDEMNITY TO THE
INJURED PARTY."  ID., AT 233.  /24/ 

DOBBINS'S DISTILLERY V. UNITED STATES, 96 U.S. 395 (1878), IS AN
ILLUSTRATION OF HOW SEVERELY THIS PRINCIPLE HAS BEEN APPLIED.  THAT
CASE INVOLVED A LESSEE'S VIOLATIONS OF THE REVENUE LAWS WHICH LED TO
THE SEIZURE OF REAL AND PERSONAL PROPERTY USED IN CONNECTION WITH A
DISTILLERY.  THE LESSOR'S ASSERTIONS OF INNOCENCE WERE REJECTED AS A
DEFENSE TO A FEDERAL STATUTORY FORFEITURE OF HIS ENTIRE PROPERTY, FOR
THE OFFENSE "ATTACHED PRIMARILY TO THE DISTILLERY, AND THE REAL AND
PERSONAL PROPERTY USED IN CONNECTION WITH THE SAME, WITHOUT ANY REGARD
WHATSOEVER TO THE PERSONAL MISCONDUCT OR RESPONSIBILITY OF THE OWNER,
BEYOND WHAT NECESSARILY ARISES FROM THE FACT THAT HE LEASED THE
PROPERTY TO THE DISTILLER, AND SUFFERED IT TO BE OCCUPIED AND USED BY
THE LESSEE AS A DISTILLERY."  ID., AT 401; SEE UNITED STATES V.
STOWELL, 133 U.S. 1, 13 - 14 (1890). 

DECISIONS REACHING THE SAME CONCLUSION HAVE CONTINUED INTO THIS
CENTURY.  IN GOLDSMITH-GRANT CO. V. UNITED STATES, 254 U.S. 505 (1921),
IT WAS HELD THAT THE FEDERAL TAX-FRAUD FORFEITURE STATUTE DID NOT
DEPRIVE AN INNOCENT OWNER OF HIS PROPERTY IN VIOLATION OF THE FIFTH
AMENDMENT.  THERE, THE CLAIMANT WAS A CONDITIONAL VENDOR OF A TAXICAB
THAT HAD BEEN USED IN THE REMOVAL AND CONCEALMENT OF DISTILLED SPIRITS
UPON WHICH THE FEDERAL TAX WAS UNPAID.  ALTHOUGH RECOGNIZING THAT
ARGUMENTS AGAINST THE APPLICATION OF THE STATUTE TO COVER AN INNOCENT
OWNER WERE NOT WITHOUT FORCE, THE COURT REJECTED THEM, SAYING: 

"IN BREACHES OF REVENUE PROVISIONS SOME FORMS OF PROPERTY ARE
FACILITIES, AND THEREFORE IT MAY BE SAID, THAT CONGRESS INTERPOSES THE
CARE AND RESPONSIBILITY OF THEIR OWNERS IN AID OF THE PROHIBITIONS OF
THE LAW AND ITS PUNITIVE PROVISIONS, BY ASCRIBING TO THE PROPERTY A
CERTAIN PERSONALITY, A POWER OF COMPLICITY AND GUILT IN THE WRONG.  IN
SUCH CASE THERE IS SOME ANALOGY TO THE LAW OF DEODAND BY WHICH A
PERSONAL CHATTEL THAT WAS THE IMMEDIATE CAUSE OF THE DEATH OF ANY
REASONABLE CREATURE WAS FORFEITED.  TO THE SUPERSTITIOUS REASON TO
WHICH THE RULE WAS ASCRIBED, BLACKSTONE ADDS 'THAT SUCH MISFORTUNES ARE
IN PART OWING TO THE NEGLIGENCE OF THE OWNER, AND THEREFORE HE IS
PROPERLY PUNISHED BY SUCH FORFEITURE.'. . . 

     "BUT WHETHER THE REASON FOR (THE FORFEITURE) BE ARTIFICIAL OR

  REAL, IT IS TOO FIRMLY FIXED IN THE PUNITIVE AND REMEDIAL

  JURISPRUDENCE OF THE COUNTRY TO BE NOW DISPLACED."  ID., AT 510 -

  511. 

SEE ALSO UNITED STATES V. ONE FORD COUPE AUTOMOBILE, 272 U.S. 321
(1926) (BRANDEIS, J.); GENERAL MOTORS ACCEPTANCE CORP. V. UNITED
STATES, 286 U.S. 49 (1932) (CARDOZO, J.).  IN VAN OSTER V. KANSAS, 272
U.S. 465 (1926), THE COURT UPHELD, AGAINST A FOURTEENTH AMENDMENT
ATTACK, A FORFEITURE UNDER STATE LAW OF AN INNOCENT OWNER'S INTEREST IN
AN AUTOMOBILE THAT HE HAD ENTRUSTED TO AN ALLEGED WRONGDOER.  JUDICIAL
INQUIRY INTO THE GUILT OR INNOCENCE OF THE OWNER COULD BE DISPENSED
WITH, THE COURT HELD, BECAUSE STATE LAWMAKERS, IN THE EXERCISE OF THE
POLICE POWER, WERE FREE TO DETERMINE THAT CERTAIN USES OF PROPERTY WERE
UNDESIRABLE AND THEN ESTABLISH "A SECONDARY DEFENSE AGAINST A FORBIDDEN
USE . . . ."  ID., AT 467. 

PLAINLY, THE PUERTO RICAN FORFEITURE STATUTES FURTHER THE PUNITIVE
AND DETERRENT PURPOSES THAT HAVE BEEN FOUND SUFFICIENT TO UPHOLD,
AGAINST CONSTITUTIONAL CHALLENGE, THE APPLICATION OF OTHER FORFEITURE
STATUTES TO THE PROPERTY OF INNOCENTS.  /25/  FORFEITURE OF CONVEYANCES
THAT HAVE BEEN USED--AND MAY BE USED AGAIN--IN VIOLATION OF THE
NARCOTICS LAWS FOSTERS THE PURPOSES SERVED BY THE UNDERLYING CRIMINAL
STATUTES, BOTH BY PREVENTING FURTHER ILLICIT USE OF THE CONVEYANCE AND
BY IMPOSING AN ECONOMIC PENALTY, THEREBY RENDERING ILLEGAL BEHAVIOR
UNPROFITABLE.  SEE, E.G., H.R. REP. NO 1054, 76TH CONG., 1ST SESS.
(1939); S. REP. NO. 926, 76TH CONG., 1ST SESS. (1939); J.R. REP. NO.
2751, 81ST CONG., 2D SESS. (1950); S. REP. NO. 1755, 81ST CONG., 2D
SESS. (1950).  /26/  TO THE EXTENT THAT SUCH FORFEITURE PROVISIONS ARE
APPLIED TO LESSORS, BAILORS, OR SECURED CREDITORS WHO ARE INNOCENT OF
ANY WRONGDOING, CONFISCATION MAY HAVE THE DESIRABLE EFFECT OF INDUCING
THEM TO EXERCISE GREATER CARE IN TRANSFERRING POSSESSION OF THEIR
PROPERTY.  CF. UNITED STATES V. ONE FORD COACH, 307 U.S. 219, 238 - 241
(1939) (DOUGLAS, J., DISSENTING). 

AGAINST THE LEGITIMATE GOVERNMENTAL INTERESTS SERVED BY THE PUERTO
RICAN STATUTE AND THE LONG LINE OF THIS COURT'S DECISIONS WHICH
SQUARELY COLLIDE WITH APPELLEE'S ASSERTION OF A CONSTITUTIONAL
VIOLATION, THE DISTRICT COURT OPPOSED OUR DECISION IN UNITED STATES V.
UNITED STATES COIN & CURRENCY, 401 U.S. 715 (1971).  THIS RELIANCE WAS
MISPLACED.  IN COIN & CURRENCY, THE GOVERNMENT CLAIMED THAT THE
PRIVILEGE AGAINST SELF-INCRIMINATION COULD NOT BE ASSERTED IN A
FORFEITURE PROCEEDING UNDER 26 U.S.C. 7302 BY ONE IN POSSESSION OF
MONEY SEIZED FROM HIM WHEN USED IN AN ILLEGAL BOOKMAKING OPERATION.  IN
THE GOVERNMENT'S VIEW, THE PROCEEDING WAS NOT "CRIMINAL" BECAUSE THE
FORFEITURE WAS AUTHORIZED WITHOUT REGARD TO THE GUILT OR INNOCENCE OF
THE OWNER OF THE MONEY.  THE COURT'S ANSWER WAS THAT 7302, READ IN
CONJUNCTION WITH 19 U.S.C. 1618, MANIFESTED A CLEAR INTENTION "TO
IMPOSE A PENALTY ONLY UPON THOSE WHO (WERE) SIGNIFICANTLY INVOLVED IN A
CRIMINAL ENTERPRISE," 401 U.S., AT 721 - 722, AND IN THAT CIRCUMSTANCE
THE PRIVILEGE COULD BE ASSERTED IN THE FORFEITURE PROCEEDING BY THE
PERSON FROM WHOM THE MONEY WAS TAKEN.  THUS, COIN & CURRENCY DID NOT
OVERRULE PRIOR DECISIONS THAT SUSTAINED APPLICATION TO INNOCENTS OF
FORFEITURE STATUTES, LIKE THE PUERTO RICAN STATUTES, NOT LIMITED IN
APPLICATION TO PERSONS "SIGNIFICANTLY INVOLVED IN A CRIMINAL
ENTERPRISE."     THIS IS NOT TO SAY, HOWEVER, THAT THE "BROAD SWEEP"
OF FORFEITURE STATUTES REMARKED IN COIN & CURRENCY COULD NOT, IN OTHER
CIRCUMSTANCES, GIVE RISE TO SERIOUS CONSTITUTIONAL QUESTIONS.  MR.
CHIEF JUSTICE MARSHALL INTIMATED AS MUCH OVER A CENTURY AND A HALF AGO
IN OBSERVING THAT "A FORFEITURE CAN ONLY BE APPLIED TO THOSE CASES IN
WHICH THE MEANS THAT ARE PRESCRIBED FOR THE PREVENTION OF A FORFEITURE
MAY BE EMPLOYED."  PEISCH V. WARE, 4 CRANCH 347, 363 (1808).  IT
THEREFORE HAS BEEN IMPLIED THAT IT WOULD BE DIFFICULT TO REJECT THE
CONSTITUTIONAL CLAIM OF AN OWNER WHOSE PROPERTY SUBJECTED TO FORFEITURE
HAD BEEN TAKEN FROM HIM WITHOUT HIS PRIVITY OR CONSENT.  SEE, ID., AT
364; GOLDSMITH-GRANT CO. V. UNITED STATES, 254 U.S., AT 512; UNITED
STATES V. ONE FORD COUPE AUTOMOBILE, 272 U.S., AT 333; VAN OSTER V.
KANSAS, 272 U.S., AT 467.  SIMILARLY, THE SAME MIGHT BE SAID OF AN
OWNER WHO PROVED NOT ONLY THAT HE WAS UNINVOLVED IN AND UNAWARE OF THE
WRONGFUL ACTIVITY, BUT ALSO THAT HE HAD DONE ALL THAT REASONABLY COULD
BE EXPECTED TO PREVENT THE PROSCRIBED USE OF HIS PROPERTY; /27/  FOR,
IN THAT CIRCUMSTANCE, IT WOULD BE DIFFICULT TO CONCLUDE THAT FORFEITURE
SERVED LEGITIMATE PURPOSES AND WAS NOT UNDULY OPPRESSIVE.  CF.
ARMSTRONG V. UNITED STATES, 364 U.S. 40, 49 (1960). 

BUT IN THIS CASE APPELLEE VOLUNTARILY ENTRUSTED THE LESSEES WITH
POSSESSION OF THE YACHT, AND NO ALLEGATION HAS BEEN MADE OR PROOF
OFFERED THAT THE COMPANY DID ALL THAT IT REASONABLY COULD TO AVOID
HAVING ITS PROPERTY PUT TO AN UNLAWFUL USE.  CF. GOLDBLATT V. TOWN OF
HEMPSTEAD, 369 U.S. 590, 596 (1962).  THE JUDGMENT OF THE DISTRICT
COURT IS

          REVERSED. 

/1/  TITLE 24, 2512 (A)(4) AND (B) PROVIDE: 

"(A) THE FOLLOWING SHALL BE SUBJECT TO FORFEITURE TO THE
COMMONWEALTH OF PUERTO RICO: 

"(4) ALL CONVEYANCES, INCLUDING AIRCRAFT, VEHICLES, MOUNT OR
VESSELS, WHICH ARE USED, OR ARE INTENDED FOR USE, TO TRANSPORT, OR IN
ANY MANNER TO FACILITATE THE TRANSPORTATION, SALE, RECEIPT, POSSESSION,
OR CONCEALMENT OF PROPERTY DESCRIBED IN CLAUSES (1) AND (2) OF THIS
SUBSECTION; 

"(B) ANY PROPERTY SUBJECT TO FORFEITURE UNDER CLAUSE (4) OF
SUBSECTION (A) OF THIS SECTION SHALL BE SEIZED BY PROCESS ISSUED
PURSUANT TO ACT NO. 39, OF JUNE 4, 1960, AS AMENDED, KNOWN AS THE
UNIFORM VEHICLE, MOUNT, VESSEL AND PLANE SEIZURE ACT, SECTIONS 1721 AND
1722 OF TITLE 34." 

/2/  TITLE 34, 1722, PROVIDES: 

"WHENEVER ANY VEHICLE, MOUNT, OR OTHER VESSEL OR PLANE IS SEIZED . .
. SUCH SEIZURE SHALL BE CONDUCTED AS FOLLOWS: 

"(A) THE PROCEEDINGS SHALL BE BEGUN BY THE SEIZURE OF THE PROPERTY
BY THE SECRETARY OF JUSTICE, THE SECRETARY OF THE TREASURY OR THE
POLICE SUPERINTENDENT, THROUGH THEIR DELEGATES, POLICEMEN OR OTHER
PEACE OFFICERS.  THE OFFICER UNDER WHOSE AUTHORITY THE ACTION IS TAKEN
SHALL SERVE NOTICE ON THE OWNER OF THE PROPERTY SEIZED OR THE PERSON IN
CHARGE THEREOF OR ANY PERSON HAVING ANY KNOWN RIGHT OR INTEREST
THEREIN, OF THE SEIZURE AND OF THE APPRAISAL OF THE PROPERTIES SO
SEIZED, SAID NOTICE TO BE SERVED IN AN AUTHENTIC MANNER, WITHIN TEN
(10) DAYS FOLLOWING SUCH SEIZURE AND SUCH NOTICE SHALL BE UNDERSTOOD TO
HAVE BEEN SERVED UPON THE MAILING THEREOF WITH RETURN RECEIPT
REQUESTED.  THE OWNERS, PERSONS IN CHARGE, AND OTHER PERSONS HAVING A
KNOWN INTEREST IN THE PROPERTY SO SEIZED MAY CHALLENGE THE CONFISCATION
WITHIN THE FIFTEEN (15) DAYS FOLLOWING THE SERVICE OF THE NOTICE ON
THEM, THROUGH A COMPLAINT AGAINST THE OFFICER UNDER WHOSE AUTHORITY THE
CONFISCATION HAS BEEN MADE, ON WHOM NOTICE SHALL BE SERVED, AND WHICH
COMPLAINT SHALL BE FILED IN THE PART OF THE SUPERIOR COURT
CORRESPONDING TO THE PLACE WHERE THE SEIZURE WAS MADE AND SHALL BE
HEARD WITHOUT SUBJECTION TO DOCKET.  ALL QUESTIONS THAT MAY ARISE SHALL
BE DECIDED AND ALL OTHER PROCEEDINGS SHALL BE CONDUCTED AS IN AN
ORDINARY CIVIL ACTION.  AGAINST THE JUDGMENT ENTERED NO REMEDY SHALL
LIE OTHER THAN A CERTIORARI BEFORE THE SUPREME COURT, LIMITED TO ISSUES
OF LAW.  THE FILING OF SUCH COMPLAINT WITHIN THE PERIOD HEREIN
ESTABLISHED SHALL BE CONSIDERED A JURISDICTIONAL PREREQUISITE FOR THE
AVAILING OF THE ACTION HEREIN AUTHORIZED. 

"(B) EVERY VEHICLE, MOUNT, OR ANY VESSEL OR PLANE SO SEIZED SHALL BE
APPRAISED AS SOON AS TAKEN POSSESSION OF BY THE OFFICER UNDER WHOSE
AUTHORITY THE SEIZURE TOOK PLACE, OR BY HIS DELEGATE, WITH THE
EXCEPTION OF MOTOR VEHICLES, WHICH SHALL BE PLACED UNDER THE CUSTODY OF
THE OFFICE OF TRANSPORTATION OF THE COMMONWEALTH OF PUERTO RICO, WHICH
SHALL APPRAISE SAME IMMEDIATELY UPON RECEIPT THEREOF. 

"IN THE EVENT OF A JUDICIAL CHALLENGE OF THE SEIZURE, THE COURT
SHALL, UPON REQUEST OF THE PLAINTIFF AND AFTER HEARING THE PARTIES,
DETERMINE THE REASONABLENESS OF THE APPRAISAL AS AN INCIDENT OF THE
CHALLENGE. 

"WITHIN TEN (10) DAYS AFTER THE FILING OF THE CHALLENGE, THE
PLAINTIFF SHALL HAVE THE RIGHT TO GIVE BOND IN FAVOR OF THE
COMMONWEALTH OF PUERTO RICO BEFORE THE PERTINENT COURT'S CLERK TO THE
SATISFACTION OF THE COURT, FOR THE AMOUNT OF THE ASSESSED VALUE OF THE
SEIZED PROPERTY, WHICH BOND MAY BE IN LEGAL TENDER, BY CERTIFIED CHECK,
HYPOTHECARY DEBENTURES, OR BY INSURANCE COMPANIES.  UPON THE ACCEPTANCE
OF THE BOND, THE COURT SHALL DIRECT THAT THE PROPERTY BE RETURNED TO
THE OWNER THEREOF.  IN SUCH CASE, THE PROVISIONS OF THE FOLLOWING
PARAGRAPHS (C), (D) AND (E) SHALL NOT APPLY. 

"WHEN BOND IS ACCEPTED THE SUBSEQUENT SUBSTITUTION OF THE SEIZED
PROPERTY IN LIEU OF THE BOND SHALL NOT BE PERMITTED, SAID BOND TO
ANSWER FOR THE SEIZURE IF THE LAWFULNESS OF THE LATTER IS UPHELD, AND
THE COURT SHALL PROVIDE IN THE RESOLUTION ISSUED TO THAT EFFECT, FOR
THE SUMMARY FORFEITURE EXECUTION OF SAID BOND BY THE CLERK OF THE COURT
AND FOR THE COVERING OF SUCH BOND INTO THE GENERAL FUNDS OF THE
GOVERNMENT OF PUERTO RICO IN CASE IT MAY BE IN LEGAL TENDER OR BY
CERTIFIED CHECK; THE HYPOTHECARY DEBENTURES OR DEBENTURES OF INSURANCE
COMPANIES SHALL BE TRANSMITTED BY THE PERTINENT CLERK OF THE COURT TO
THE SECRETARY OF JUSTICE FOR EXECUTION.  P "(C) AFTER FIFTEEN (15) DAYS
HAVE ELAPSED SINCE SERVICE OF NOTICE OF THE SEIZURE WITHOUT THE PERSON
OR PERSONS WITH INTEREST IN THE PROPERTY SEIZED HAVE (SIC) FILED THE
CORRESPONDING CHALLENGE, OR AFTER TWENTY-FIVE (25) DAYS HAVE ELAPSED
SINCE SERVICE OF NOTICE OF THE SEIZURE WITHOUT THE COURT'S HAVING
DIRECTED THAT THE SEIZED PROPERTY BE RETURNED ON ACCOUNT OF THE BOND TO
THAT EFFECT HAVING BEEN GIVEN, THE OFFICER UNDER WHOSE AUTHORITY THE
SEIZURE TOOK PLACE, THE DELEGATE THEREOF, OR THE OFFICE OF
TRANSPORTATION, AS THE CASE MAY BE, MAY PROVIDE FOR THE SALE AT AUCTION
OF THE SEIZED PROPERTY, OR MAY SET THE SAME ASIDE FOR OFFICIAL USE OF
THE GOVERNMENT OF PUERTO RICO.  IN CASE THE SEIZED PROPERTY CANNOT BE
SOLD AT AUCTION OR SET ASIDE FOR OFFICIAL USE OF THE GOVERNMENT, THE
PROPERTY MAY BE DESTROYED BY THE OFFICER IN CHARGE, SETTING FORTH IN A
MINUTE WHICH HE SHALL DRAW UP FOR THE PURPOSE, THE DESCRIPTION OF THE
PROPERTY, THE REASONS FOR ITS DESTRUCTION AND THE DATE AND PLACE WHERE
IT IS DESTROYED, AND HE SHALL SERVE NOTICE WITH A COPY THEREOF ON THE
SECRETARY OF JUSTICE. 

"(D) IN CASE THE VEHICLE, MOUNT, OR VESSEL OR PLANE IS SOLD AT
AUCTION, THE PROCEEDS FROM THE SALE SHALL BE COVERED INTO THE GENERAL
FUND OF THE GOVERNMENT OF PUERTO RICO, AFTER DEDUCTING AND REIMBURSING
EXPENSES INCURRED. 

"(E) IF THE SEIZURE IS JUDICIALLY CHALLENGED AND THE COURT DECLARES
SAME ILLEGAL, THE SECRETARY OF THE TREASURY OF PUERTO RICO SHALL, UPON
PRESENTATION OF A CERTIFIED COPY OF THE FINAL DECISION OR JUDGMENT OF
THE COURT, PAY TO THE CHALLENGER THE AMOUNT OF THE APPRIASAL OR THE
PROCEEDS FROM THE PUBLIC AUCTION SALE OF SUCH PROPERTY, WHICHEVER SUM
IS THE HIGHEST, PLUS INTEREST THEREON AT THE RATE OF 6% PER ANNUM,
COUNTING FROM THE DATE OF THE SEIZURE." 

/3/  P.R. LAWS ANN., TIT. 23, 451 (E), 451B, AND 451C, PROVIDE THAT
NO PERSON SHALL "OPERATE OR GIVE PERMISSION FOR THE OPERATION OF" A
VESSEL IN COMMONWEALTH WATERS WITHOUT REGISTERING HIS INTEREST IN THE
VESSEL.  ONLY THE LESSEES HAD REGISTERED THE YACHT, AND THIS LED THE
DISTRICT COURT TO CONCLUDE THAT "(FROM THE RECORD IN THIS CASE, WE ARE
NOT DISPOSED TO RULE THAT THE COMMONWEALTH OF PUERTO RICO DID NOT HAVE
REASON TO BELIEVE THAT (POSTSEIZURE) NOTICE TO THE OWNER WAS, IN FACT,
GIVEN."  363 F. SUPP. 1337, 1342 (PR 1973).  APPELLEE DOES NOT CONTEST
THIS RULING. 

/4/  IT IS AGREED THAT THE YACHT WAS APPRAISED AT A VALUE OF
$19,800, AND THAT THE CHIEF OF THE OFFICE OF TRANSPORTATION OF THE
COMMONWEALTH PURPORTS TO MAINTAIN POSSESSION OF THE YACHT AS LEGAL
OWNER. 

/5/  UNCONSTITUTIONALITY OF THE STATUTES WAS ALLEGED UNDER BOTH THE
FIFTH AND FOURTEENTH AMENDMENTS.  THE DISTRICT COURT DEEMED IT
UNNECESSARY TO DETERMINE WHICH AMENDMENT APPLIED TO PUERTO RICO, SEE
FORNARIS V. RIDGE TOOL CO., 400 U.S. 41, 43 - 44 (1970), AND WE AGREE. 
THE JOINT RESOLUTION OF CONGRESS APPROVING THE CONSTITUTION OF THE
COMMONWEALTH OF PUERTO RICO, SUBJECTS ITS GOVERNMENT TO "THE APPLICABLE
PROVISIONS OF THE CONSTITUTION OF THE UNITED STATES," 66 STAT. 327, AND
"THERE CANNOT EXIST UNDER THE AMERICAN FLAG ANY GOVERNMENTAL AUTHORITY
UNTRAMMELED BY THE REQUIREMENTS OF DUE PROCESS OF LAW AS GUARANTEED BY
THE CONSTITUTION OF THE UNITED STATES."  MORA V. MEJIAS, 206 F.2D 377,
382 (CA1 1953) (MAGRUDER, C.J.).  SEE 48 U.S.C. 737. 

/6/  APPELLANTS INITIALLY OPPOSED THE CONVENING OF A THREE-JUDGE
COURT, AUGUING THAT THE DISTRICT COURT SHOULD ABSTAIN.  AFTER A
HEARING, APPELLANTS WITHDREW THEIR OPPOSITION AND CONSENTED TO THE
CONVENING OF A THREE-JUDGE COURT. 

/7/  THAT SECTION PROVIDES: 

"EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO THE
SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION,
SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES."  (EMPHASIS ADDED.) 

/8/  THAT SECTION PROVIDES: 

"AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE
ENFORCEMENT, OPERATION OR EXECUTION OF ANY STATE STATUTE BY RESTRAINING
THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION
OF SUCH STATUTE OR OF AN ORDER MADE BY AN ADMINISTRATIVE BOARD OR
COMMISSION ACTING UNDER STATE STATUTES, SHALL NOT BE GRANTED BY ANY
DISTRICT COURT OR JUDGE THEREOF UPON THE GROUND OF THE
UNCONSTITUTIONALITY OF SUCH STATUTE UNLESS THE APPLICATION THEREFOR IS
HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES UNDER SECTION
2284 OF THIS TITLE."  (EMPHASIS ADDED.) 

/9/  THE COURT IN MORA QUOTED FROM THE STATEMENT OF THE UNITED
STATES TO THE SECRETARY GENERAL OF THE UNITED NATIONS EXPLAINING ITS
DECISION TO CEASE TRANSMISSION OF INFORMATION CONCERNING PUERTO RICO
UNDER ART. 73 (E) OF THE UNITED NATIONS CHARTER, WHICH REQUIRES THE
COMMUNICATION OF CERTAIN TECHNICAL INFORMATION BY COUNTRIES RESPONSIBLE
FOR ADMINISTERING TERRITORIES WHOSE PEOPLE HAVE NOT YET ATTAINED A FULL
MEASURE OF SELF-GOVERNMENT, 115 F. SUPP., AT 612:  "'BY THE VARIOUS
ACTIONS TAKEN BY THE CONGRESS AND THE PEOPLE OF PUERTO RICO, CONGRESS
HAS AGREED THAT PUERTO RICO SHALL HAVE, UNDER THAT CONSTITUTION,
FREEDOM FROM CONTROL OR INTERFERENCE BY THE CONGRESS IN RESPECT OF
INTERNAL GOVERNMENT AND ADMINISTRATION, SUBJECT ONLY TO COMPLIANCE WITH
APPLICABLE PROVISIONS OF THE FEDERAL CONSTITUTION, THE PUERTO RICAN
FEDERAL RELATIONS ACT AND THE ACTS OF CONGRESS AUTHORIZING AND
APPROVING THE CONSTITUTION, AS MAY BE INTERPRETED BY JUDICIAL
DECISION.  THOSE LAWS WHICH DIRECTED OR AUTHORIZED INTERFERENCE WITH
MATTERS OF LOCAL GOVERNMENT BY THE FEDERAL GOVERNMENT HAVE BEEN
REPEALED.'"  28 DEPT. OF STATE BULL.  584, 587 (1953).  BUT CF. NOTE,
PUERTO RICO; COLONY OR COMMONWEALTH?  6 N.Y.U.J. INT'L L. & P. 115
(1973). 

/10/  SEE ALSO H. FRIENDLY, FEDERAL JURISDICTION:  A GENERAL VIEW 93
(1973). 

/11/  FORNARIS V. RIDGE TOOL CO., 400 U.S. 41 (1970), DOES NOT
MILITATE AGAINST THIS HOLDING.  THERE, WE HELD THAT A PUERTO RICAN
STATUTE WAS NOT A "STATE STATUTE" WITHIN 28 U.S.C. 1254 (2), WHICH
PERMITS APPEALS FROM JUDGMENTS OF FEDERAL COURTS OF APPEALS HOLDING
STATE STATUTES UNCONSTITUTIONAL.  WE NOTED THAT 28 U.S.C. 1258,
REQUIRING THAT WE PERMIT FINAL JUDGMENTS OF THE SUPREME COURT OF THE
COMMONWEALTH OF PUERTO RICO TO BE REVIEWED BY APPEAL OR BY CERTIORARI,
DIRECTLY CORRESPONDED TO THE PROVISIONS OF 28 U.S.C. 1257 PROVIDING FOR
REVIEW OF FINAL JUDGMENTS OF "STATE" COURTS.  SINCE NO PARALLEL
PROVISION WAS ADDED TO 1254(2) TO PERMIT APPEALS FROM THE COURTS OF
APPEALS HOLDING PUERTO RICAN STATUTES UNCONSTITUTIONAL, WE SAID:
"WHETHER THE OMISSION WAS BY ACCIDENT OR BY DESIGN, OUR PRACTICE OF
STRICT CONSTRUCTION OF STATUTES AUTHORIZING APPEALS DICTATES THAT WE
NOT GIVE AN EXPANSIVE INTERPRETATION TO THE WORD 'STATE.'"  400 U.S.,
AT 42 N. 1. 

THIS CONCLUSION SEEMS COMPELLED BY THE HISTORY OF THE CLOSE
RELATIONSHIP BETWEEN 28 U.S.C. 1254 (2) AND 28 U.S.C. 1257.  IN THE
JUDICIARY ACT OF 1789, 1 STAT. 73, 85 - 86, FINAL DECISIONS OF STATE
COURTS SUSTAINING STATE STATUTES AGAINST CHALLENGES UNDER THE FEDERAL
CONSTITUTION WERE SUBJECTED TO REVIEW BY THIS COURT ON WRIT OF ERROR. 
SEE KING MFG. CO. V. CITY COUNCIL OF AUGUSTA, 277 U.S. 100 (1928).  BUT
PRIOR TO 1925, THERE WAS NO APPEAL FROM "FINAL" JUDGMENTS OF THE
FEDERAL CIRCUIT COURTS.  SEE 36 STAT. 1157 (1911).  WHEN CONSIDERATION
WAS BEING GIVEN TO AMENDMENT OF THE JUDICIARY ACT IN 1924 AND 1925. 
"(ATTENTION WAS DRAWN TO THE DISPARITY BETWEEN THE WANT OF OBLIGATORY
REVIEW OVER (DECISIONS OF THE CIRCUIT COURTS INVOLVING THE
CONSTITUTIONALITY OF STATE STATUTES) AND THE EXISTENCE OF OBLIGATORY
JURISDICTION OVER A SIMILAR CLASS OF CASES IN THE STATE COURTS. 
SENATOR COPELAND REHEARSED BEFORE THE SENATE CORRESPONDENCE HE HAD HAD
ON THIS POINT WITH THE CHIEF JUSTICE, WHO HAD URGED THAT IF IT WAS
DESIRABLE TO PUT THE CIRCUIT COURTS OF APPEALS ON THE SAME LEVEL WITH
THE STATE COURTS, IT WOULD BE BETTER TO WITHDRAW REVIEW AS OF RIGHT
FROM THE STATE COURTS AND SUBJECT THE DECISIONS OF BOTH THE STATE
COURTS AND THE CIRCUIT COURTS SOLELY TO A DISCRETIONARY REVIEW BY THE
SUPREME COURT, RATHER THAN TO ALLOW OBLIGATORY REVIEW OVER ALL
CONSTITUTIONAL CASES FROM BOTH COURTS.  THE CHIEF JUSTICE, HOWEVER,
JUSTIFIED THE PROPOSED DISCRIMINATION ON THE GROUND THAT A CIRCUIT
COURT OF APPEALS IN DECIDING A FEDERAL CONSTITUTIONAL QUESTION 'WOULD
BE MORE LIKELY TO PRESERVE THE FEDERAL VIEW OF THE ISSUE THAN THE STATE
COURT, AT LEAST TO AN EXTENT TO JUSTIFY MAKING A REVIEW OF ITS DECISION
BY OUR COURT CONDITIONAL UPON OUR APPROVAL.'  HOWEVER, AN AMENDMENT
PREVAILED WHICH MET THIS DISCRIMINATION BY ALLOWING WRIT OF ERROR TO
THE CIRCUIT COURTS OF APPEALS IN CASES SUSTAINING A CONSTITUTIONAL
CLAIM AGAINST A STATE STATUTE.  THE ARGUMENT ADVANCED BY THE CHIEF
JUSTICE THUS BECAME THE BASIS FOR A NEW DEVELOPMENT OF THE PRINCIPLE
WHICH SINCE 1789 HAD BEEN THE BASIS OF SUPREME COURT REVIEW OF THE
HIGHEST COURTS OF THE STATES.  DUE TO THE BELIEF THAT THE STATE COURTS
WOULD BE MORE JEALOUS OF LOCAL RIGHTS THAN OF FEDERAL CLAIMS, REVIEW
HAD LAIN AS OF RIGHT WHERE THE CONSTITUTIONAL CLAIM WAS ADVANCED AND
DENIED.  NOW, DUE TO THE BELIEF . . . THAT THE FEDERAL COURT WOULD
SUSTAIN CONSTITUTIONAL CLAIMS AS OPPOSED TO THE LOCAL RIGHT, REVIEW WAS
PROVIDED FROM THE CIRCUIT COURTS OF APPEALS WHERE THE CONSTITUTIONAL
CLAIM WAS ADVANCED AND ALLOWED.  THEREBY, THE SENATE 'INTENDED TO PUT
THE TWO ON A PERFECT PARITY, ALLOWING A WRIT OF ERROR FROM THE CIRCUIT
COURT OF APPEALS UNDER CONDITIONS EXACTLY THE SAME, EXCEPT REVERSED,
AND ALLOWING A WRIT OF CERTIORARI IN THE ONE CASE AS IN THE OTHER CASE,
SO THAT THE TWO WOULD BE ENTIRELY HARMONIOUS.'"  F. FRANKFURTER & J.
LANDIS, THE BUSINESS OF THE SUPREME COURT 277 - 278 (1928) (FOOTNOTES
OMITTED). 

THUS, AGAINST THAT BACKGROUND, WHEN CONGRESS MADE 1258 ONLY A
COUNTERPART OF 1257, THERE COULD BE NO BASIS FOR AN EXPANSIVE READING
OF THE WORD "STATE" IN 1254(2), IN THE ABSENCE OF ITS CONGRESSIONAL
AMENDMENT. 

WE HAVE NO OCCASION TO ADDRESS THE QUESTION WHETHER PUERTO RICO IS A
"STATE" FOR PUSPOSES OF 28 U.S.C. 1343, A JURISDICTIONAL BASIS OF
APPELLEE'S COMPLAINT.  SINCE THE COMPLAINT AND LEASE AGREEMENT, AS
INCORPORATED, FAIRLY READ, LEAVE LITTLE DOUBT THAT THE MATTER IN
CONTROVERSY EXCEEDS $10,000 AND ARISES UNDER THE CONSTITUTION OF THE
UNITED STATES, THERE IS JURISDICTION UNDER 28 U.S.C. 1331. 

/12/  APPELLANTS ALSO ARGUE THAT THE SEIZURE DID NOT RESULT IN ANY
INJURY TO APPELLEE THAT CONSTITUTED FAILURE OF PRESEIZURE NOTICE AND
HEARING A DENIAL OF DUE PROCESS.  THIS IS SO, THEY CONTEND, BECAUSE THE
LEASE GAVE THE LESSEES EXCLUSIVE RIGHT TO POSSESSION AT THE TIME OF THE
SEIZURE, AND THEREFORE APPELLEE'S NONPOSSESSORY INTEREST WAS ADEQUATELY
PROTECTED BY THE STATUTORY PORVISIONS FOR A POST-SEIZURE HEARING.  BUT
THE LEASE PROVIDES THAT LESSEES' FAILURE, INTER ALIA, WITHIN 15 DAYS
AFTER NOTICE FROM APPELLEE TO PAY ARREARS OF RENT OR USE THE YACHT
SOLELY FOR LEGAL PURPOSES WOULD ESTABLISH A DEFAULT ENTITLING APPELLEE
TO POSSESSION.  WHETHER A DEFAULT HAD IN FACT OCCURRED BETWEEN MAY 6,
1972, WHEN A LESSEE WAS FIRST ACCUSED OF A NARCOTICS VIOLATION, AND THE
DATE OF SEIZURE, JULY 11, 1972, IS NOT CLEAR FROM THE RECORD, ALTHOUGH
IT IS CLEAR THAT APPELLEE DID NOT ATTEMPT TO REPOSSESS THE YACHT UNTIL
OCTOBER 19, 1972. 

SINCE, HOWEVER, OUR HOLDING IS THAT PRESEIZURE NOTICE AND HEARING
ARE NOT REQUIRED BY DUE PROCESS IN THE CONTEXT OF THIS FORFEITURE, WE
HAVE NO OCCASION TO REMAND FOR A DETERMINATION (1) WHETHER THE COMPANY
HAD AN IMMEDIATE, BUT AS YET UNEXERCISED, RIGHT TO POSSESSION ON THE
DATE OF SEIZURE OR MERELY A RIGHT TO COLLECT RENTS, TOGETHER WITH A
REVERSIONARY INTEREST, AND (2) WHETHER EITHER OR BOTH OF THESE PROPERTY
INTERESTS WOULD BE OF SUFFICIENT SIGNIFICANCE TO REQUIRE THAT THE
COMPANY BE GIVEN AN ADVANCE OPPORTUNITY TO CONTEST THE SEIZURE.  CF.
FUENTES V. SHEVIN, 407 U.S. 67, 86 - 87 (1972). 

/13/  CF. OWNBEY V. MORGAN, 256 U.S. 94 (1921), CITED WITH APPROVAL
IN FUENTES V. SHEVIN, SUPRA, AT 91 N. 23. 

/14/  FUENTES EXPRESSLY DISTINGUISHED SEIZURE UNDER A SEARCH WARRANT
FROM SEIZURE UNDER A WRIT OF REPLEVIN:  "FIRST, A SEARCH WARRANT IS
GENERALLY ISSUED TO SERVE A HIGHLY IMPORTANT GOVERNMENTAL NEED--E.G.,
THE APPREHENSION AND CONVICTION OF CRIMINALS--RATHER THAN THE MERE
PRIVATE ADVANTAGE OF A PRIVATE PARTY IN AN ECONOMIC TRANSACTION. 
SECOND, A SEARCH WARRANT IS GENERALLY ISSUED IN SITUATIONS DEMANDING
PROMPT ACTION.  THE DANGER IS ALL TO OBVIOUS THAT A CRIMINAL WILL
DESTROY OR HIDE EVIDENCE OR FRUITS OF HIS CRIME IF GIVEN ANY PRIOR
NOTICE.  THIRD, THE FOURTH AMENDMENT GUARANTEED THAT THE STATE WILL NOT
ISSUE SEARCH WARRANTS MERELY UPON THE CONCLUSORY APPLICATION OF A
PRIVATE PARTY.  IT GUARANTEES THAT THE STATE WILL NOT ABDICATE CONTROL
OVER THE ISSUANCE OF WARRANTS AND THAT NO WARRANT WILL BE ISSUED
WITHOUT A PRIOR SHOWING OF PROBABLE CAUSE."  407 U.S., AT 93 - 94, N.
30. 

WE HAVE NO OCCASION TO ADDRESS THE QUESTION WHETHER THE FOURTH
AMENDMENT WARRANT OR PROBABLE-CAUSE REQUIREMENTS ARE APPLICABLE TO
SEIZURES UNDER THE PUERTO RICAN STATUTES. 

/15/  NO CHALLENGE IS MADE TO THE DISTRICT COURT'S DETERMINATION
THAT THE FORM OF POSTSEIZURE NOTICE SATISFIED DUE PROCESS
REQUIREMENTS.  SEE N. 3, SUPRA.  NOTICE, OF COURSE, WAS REQUIRED TO BE
"'REASONABLY CALCULATED' TO APPRISE (THE COMPANY) OF THE PENDENCY OF
THE FORFEITURE PROCEEDINGS."  ROBINSON V. HANRAHAN, 409 U.S. 38, 40
(1972). 

/16/  DEODAND DERIVES FROM THE LATIN DEO DANDUM, "TO BE GIVEN TO
GOD." 

/17/  SEE EXODUS 21:28 ("(IF AN OX GORE A MAN OR A WOMAN, AND THEY
DIE, HE SHALL BE STONED:  AND HIS FLESH SHALL NOT BE EATEN?). 

/18/  SEE 1 M. HALE, PLEAS OF THE CROWN 419, 423 - 424 (1ST AM. ED.
1847); 2 F. POLLOCK & F. MAITLAND, HISTORY OF ENGLISH LAW 473 (2D ED.
1909); LAW OF DEODANDS, 34 LAW MAG.  188, 189 (1845); FINKELSTEIN, THE
GORING OX:  SOME HISTORICAL PERSPECTIVES ON DEODANDS, FORFEITURES,
WRONGFUL DEATH AND THE WESTERN NOTION OF SOVEREIGNTY, 46 TEMP.  L. Q.
169, 182 (1973). 

/19/  SEE HALE, N. 18, SUPRA, AT 424.  INDEED, THE ABOLITION OF THE
DEODAND INSTITUTION IN ENGLAND IN 1846, 9 & 10 VICT.  C. 62, WENT HAND
IN HAND WITH THE PASSAGE OF LORD COMPBELL'S ACT CREATING A CAUSE OF
ACTION FOR WRONGFUL DEATH, 9 & 10 VICT.  C. 93 (1846).  PASSAGE OF THE
TWO BILLS WAS LINKED, BECAUSE LORD CAMPBELL WAS UNWILLING TO ELIMINATE
THE DEODAND INSTITUTION, WITH ITS TENDENCY TO DETER CARELESSNESS,
PARTICULARLY BY RAILROADS, UNLESS A RIGHT OF ACTION WAS GRANTED TO THE
DEAD MAN'S SURVIVORS.  SEE 77 HANSARD'S PARLIAMENTARY DEBATES, THIRD
SERIES 1031 (1845).  SEE GENERALLY FINKELSTEIN, N. 18, SUPRA, AT 170 -
171. 

THE ADAPTATION OF THE DEODAND INSTITUTION TO SERVE THE MORE
CONTEMPORARY FUNCTION OF DETERRENCE IS AN EXAMPLE OF A PHENOMENON
DISCUSSED BY MR. JUSTICE HOLMES:  "THE CUSTOMS, BELIEFS, OR NEEDS OF A
PRIMITIVE TIME ESTABLISH A RULE OR A FORMULA.  IN THE COURSE OF
CENTURIES THE CUSTOM, BELIEF, OR NECESSITY DISAPPEARS, BUT THE RULE
REMAINS.  THE REASON WHICH GAVE RISE TO THE RULE HAS BEEN FORGOTTEN,
AND INGENIOUS MINDS SET THEMSELVES TO INQUIRE HOW IT IS TO BE ACCOUNTED
FOR.  SOME GROUND OF POLICY IS THOUGHT OF, WHICH SEEMS TO EXPLAIN IT
AND TO RECONCILE IT WITH THE PRESENT STATE OF THINGS; AND THEN THE RULE
ADAPTS ITSELF TO THE NEW REASONS WHICH HAVE BEEN FOUND FOR IT, AND
ENTERS ON A NEW CAREER.  THE OLD FORM RECEIVES A NEW CONTENT, AND IN
TIME EVEN THE FORM MODIFIES ITSELF TO FIT THE MEANING WHICH IT HAS
RECEIVED."  THE COMMON LAW 5 (1881). 

/20/  IN 1870, ENGLAND ELIMINATED MOST FORFEITURES OF THOSE
CONVICTED OF FELONIES OR TREASON.  33 & 34 VICT.  C 23. 

/21/  ACT OF JULY 31, 1789, 12, 36, 1 STAT. 39, 47; SEE ALSO ACT OF
AUG. 4, 1790, 13, 22, 27, 28, 67, 1 STAT. 157, 191, 163, 176. 

/22/  ACT OF MAR. 22, 1794, 1 STAT 347. 

/23/  ACT OF MAR. 2, 1807, 2 STAT. 426. 

/24/  THIRTY YEARS EARLIER, THE COURT UPHELD A FORFEITURE OF A
QUANTITY OF COFFEE WHICH HAD BEEN TRANSFERRED TO BONA FIDE PURCHASERS
AFTER VIOLATION OF THE NON-INTERCOURSE ACT OF 1809, UPON REASONING THAT
"(IN THE ETERNAL STRUGGLE THAT EXISTS BETWEN THE AVARICE, ENTERPRIZE
AND COMBINATIONS OF INDIVIDUALS ON THE ONE HAND, AND THE POWER CHARGED
WITH THE ADMINISTRATION OF THE LAWS ON THE OTHER, SEVERE LAWS ARE
RENDERED NECESSARY TO ENABLE THE EXECUTIVE TO CARRY INTO EFFECT THE
MEASURE OF POLICY ADOPTED BY THE LEGISLATURE."  UNITED STATES V. 1960
BAGS OF COFFEE, 8 CRANCH 398, 405 (1814). 

/25/  BUT FOR UNIMPORTANT DIFFERENCES, P.R. LAWS ANN., TIT. 24, 2512
(A) (SUPP. 1973) IS MODELED AFTER 21 U.S.C. 881(A).  THE LATTER SECTION
PROVIDES: 

"(A) THE FOLLOWING SHALL BE SUBJECT TO FORFEITURE TO THE UNITED
STATES AND NO PROPERTY RIGHT SHALL EXIST IN THEM: 

"(4) ALL CONVEYANCES, INCLUDING AIRCRAFT, VEHICLES, OR VESSELS,
WHICH ARE USED, OR ARE INTENDED FOR USE, TO TRANSPORT, OR IN ANY MANNER
TO FACILITATE THE TRANSPORTATION, SALE, RECEIPT, POSSESSION, OR
CONCEALMENT OF PROPERTY DESCRIBED IN PARAGRAPH (1) OR (2), EXCEPT THAT-
 

"(A) NO CONVEYANCE USED BY ANY PERSON AS A COMMON CARRIER IN THE
TRANSACTION OF BUSINESS AS A COMMON CARRIER SHALL BE FORFEITED UNDER
THE PROVISIONS OF THIS SECTION UNLESS IT SHALL APPEAR THAT THE OWNER OR
OTHER PERSON IN CHARGE OF SUCH CONVEYANCE WAS A CONSENTING PARTY OR
PRIVY TO A VIOLATION OF THIS SUBCHAPTER OR SUBCHAPTER II OF THIS
CHAPTER; AND 

"(B) NO CONVEYANCE SHALL BE FORFEITED UNDER THE PROVISIONS OF THIS
THEREOF TO HAVE BEEN COMMITTED OR OMITTED BY ANY PERSON OTHER THAN SUCH
OWNER WHILE SUCH CONVEYANCE WAS UNLAWFULLY IN THE POSSESSION OF A
PERSON OTHER THAN THE OWNER IN VIOLATION OF THE CRIMINAL LAWS OF THE
UNITED STATES, OR OF ANY STATE.  . . ."  SEE N. 1, SUPRA.  THE
EXCEPTIONS CONTAINED IN PARAGRAPHS (A) AND (B) OF THE FEDERAL STATUTE,
ALTHOUGH HAVING NO SPECIFIC COUNTERPART IN 2512 (A) (4), HAVE BEEN
JUDICIALLY RECOGNIZED BY THE SUPREME COURT OF PUERTO RICO.  SEE GENERAL
MOTORS ACCEPTANCE CORP. V. BRANUELA, 61 P.R.R. 701 (1943); METRO
TAXICABS, INC. V. TREASURER OF PUERTO RICO 73 P.R.R. 164 (1952);
COMMONWEALTH V. SUPERIOR COURT, 94 P.R.R. 687 (1967). 

/26/  SEIZURE AND FORFEITURE STATUTES ALSO HELP COMPENSATE THE
GOVERNMENT FOR ITS ENFORCEMENT EFFORTS AND PROVIDE METHODS FOR
OBTAINING SECURITY FOR SUBSQUENTLY IMPOSED PENALTIES AND FINES.  SEE,
E.G., ONE LOT EMERALD CUT STONES V. UNITED STATES, 409 U.S. 232, 237
(1972). 

/27/  THE COMMON LAW SOUGHT TO MITIGATE THE HARSHNESS OF FELONY AND
DEODAND FORFEITURES.  THE WRIT OF RESTITUTION WAS AVAILABLE TO AN
INDIVIDUAL WHOSE GOODS WERE STOLEN BY A THIEF AND FORFEITED TO THE
CROWN AS A CONSEQUENCE OF THE THIEF'S CONVICTION.  SEE 2 F. POLLOCK &
F. MAITLAND, SUPRA, N. 18, AT 165 - 166; 3 W. HOLDSWORTH, HISTORY OF
ENGLISH LAW 280 AND N. 3 (3D ED. 1927).  MITIGATION WITH RESPECT TO
DEODANDS WAS LESS FORMALIZED: "IT SEEMS ALSO CLEAR FROM THE ANCIENT
AUTHORITIES, THAT JURORS ALWAYS DETERMINED THE AMOUNT OF DEODAND TO BE
IMPOSED WITH GREAT MODERATION, AND WITH A DUE REGARD TO THE RIGHTS OF
PROPERTY AND THE MORAL INNOCENCE OF THE PARTY INCURRING THE PENALTY. 
OUR ANCESTORS SEEM FULLY TO HAVE PERCEIVED THE HARDSHIP OF INFLICTING
SUCH PENALTY ON ONE WHO HAD BEEN GUILTY OF NO MORAL OR INDEED LEGAL
OFFENCE; AND IN ALL CASES, THEREFORE, WHERE DEATH WAS PURELY THE RESULT
OF ACCIDENT, AND NOT OF NEGLIGENCE OR CARELESSNESS, IMPOSED A NOMINAL
FINE, OR FOUND THAT ONLY TO BE THE DEODAND WHICH BY ITS IMMEDIATE
CONTACT OCCASIONED DEATH."  LAW OF DEODANDS, SUPRA, N. 18, AT 190. 

SINCE 1790 THE FEDERAL GOVERNMENT HAS APPLIED THE AMELIORATIVE
POLICY--FIRST ADOPTED IN ENGLAND, SEE UNITED STATES V. MORRIS, 10
WHEAT.  246, 293 - 295 (1825)--OF PROVIDING ADMINISTRATIVE REMISSIONS
AND MITIGATIONS OF STATUTORY FORFEITURES IN MOST CASES WHERE THE
VIOLATIONS ARE INCURRED "WITHOUT WILLFUL NEGLIGENCE" OR AN INTENT TO
COMMIT THE OFFENSE.  SEE 1 STAT. 122, C. 12 (1790); 1 STAT. 506 (1797);
REV. STAT. 5292 - 5293 (1874); 19 U.S.C. 1618; THE LAURA, 114 U.S. 411,
414 - 415 (1885); UNITED STATES V. UNITED STATES COIN & CURRENCY, 401
U.S. 715, 721 (1971).  INDEED, FORFEITURES INCURRED UNDER 21 U.S.C. 881
(A), WHICH SERVED AS THE MODEL FOR ENACTMENT OF THE DISPUTED PUERTO
RICAN STATUTE, SEE N. 25, SUPRA, ARE SUBJECT TO THE REMISSION AND
MITIGATION PROCEDURES OF 19 U.S.C. 1618.  SEE 21 U.S.C. 881(D)
REGULATIONS IMPLEMENTING 1618 PROVIDE THAT, IF THE SEIZED PROPERTY WAS
IN THE POSSESSION OF ANOTHER WHO WAS RESPONSIBLE FOR THE ACT WHICH
RESULTED IN THE SEIZURE, THE PETITIONER MUST PRODUCE EVIDENCE
EXPLAINING THE MANNER IN WHICH THE OTHER PERSON ACQUIRED POSSESSION AND
SHOWING THAT, PRIOR TO PARTING WITH THE PROPERTY, HE DID NOT KNOW OR
HAVE REASONABLE CAUSE TO BELIEVE THAT THE PROPERTY WOULD BE USED IN
VIOLATION OF THE LAW OR THAT THE VIOLATOR HAD A CRIMINAL RECORD OR A
REPUTATION FOR COMMERCIAL CRIME.  19 CFR 171.13 (A).  THESE PROVISIONS
ARE ALSO EXTENDED TO THOSE INDIVIDUALS HOLDING CHATTEL MORTGAGES OR
CONDITIONAL SALES CONTRACTS.  19 CFR 171,13(B).  SEE ALSO 18 U.S.C.
3617(B), ESTABLISHING STANDARDS FOR JUDICIAL REMISSION AND MITIGATION
OF FORFEITURES RESULTING FROM VIOLATIONS OF THE INTERNAL REVENUE LAWS
RELATING TO LIQUOR. 

MR. JUSTICE STEWART JOINS PARTS I AND II OF THE COURT'S OPINION,
BUT, FOR THE REASONS STATED IN THE DISSENTING OPINION OF MR. JUSTICE
DOUGLAS, HE WOULD HOLD THAT THE FORFEITURE OF PROPERTY BELONGING TO AN
INNOCENT AND NONNEGLIGENT OWNER VIOLATES THE FIFTH AND FOURTEENTH
AMENDMENTS. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE POWELL JOINS, CONCURRING. 

I JOIN THE COURT'S OPINION, AND AGREE THAT THERE WAS NO
CONSTITUTIONAL NECESSITY UNDER FUENTES OR ANY OTHER CASE IN THIS COURT
TO ACCORD THE OWNER-LESSOR OF THE YACHT A HEARING IN THE CIRCUMSTANCES
OF THIS CASE.  I ADD, HOWEVER, THAT THE PRESENCE OF IMPORTANT PUBLIC
INTERESTS WHICH PERMITS DISPENSING WITH A PRESEIZURE HEARING IN THE
INSTANT CASE, IS ONLY ONE OF THE SITUATIONS IN WHICH NO PRIOR HEARING
IS REQUIRED.  SEE MITCHELL V. GRANT, ANTE, P. 600; ARNETT V. KENNEDY,
ANTE, P. 134 (WHITE, J., CONCURRING).     MR. JUSTICE DOUGLAS,
DISSENTING IN PART. 

WHILE I AGREE THAT PUERTO RICO IS A STATE FOR PURPOSES OF THE THREE
JUDGE COURT JURISDICTION, I DISSENT ON THE MERITS.     THE DISCOVERY OF
MARIHAUNA ON THE YACHT TOOK PLACE MAY 6, 1972.  THE SEIZURE OF THE
YACHT TOOK PLACE ON JULY 11, 1972--OVER TWO MONTHS LATER.  IN VIEW OF
THE LONG DELAY IN MAKING THE SEIZURE WHERE IS THAT "SPECIAL NEED FOR
VERY PROMPT ACTION" WHICH WE EMPHASIZED IN FUENTES V. SHEVIN, 407 U.S.
67, 91?  THE COURT CITES INSTANCES OF EXIGENT CIRCUMSTANCES--SEIZED
POISONED FOOD, DANGEROUS DRUGS, FAILURE OF A BANK, AND THE LIKE.  BUT
THEY ARE INAPT. 

FUENTES V. SHEVIN, INVOLVED A CONTEST BETWEEN DEBTOR AND CREDITOR
AND A RESOLUTION OF PRIVATE PROPERTY RIGHTS NOT IMPLICATED IN AN
IMPORTANT GOVERNMENTAL PURPOSE.  HERE IMPORTANT GOVERNMENTAL PURPOSES
ARE INVOLVED.  AS TO THAT TYPE OF CASE WE SAID IN FUENTES:  "FIRST, IN
EACH CASE, THE SEIZURE HAS BEEN DIRECTLY NECESSARY TO SECURE AN
IMPORTANT GOVERNMENTAL OR GENERAL PUBLIC INTEREST.  SECOND, THERE HAS
BEEN A SPECIAL NEED FOR VERY PROMPT ACTION.  THIRD, THE STATE HAS KEPT
STRICT CONTROL OVER ITS MONOPOLY OF LEGITIMATE FORCE:  THE PERSON
INITIATING THE SEIZURE HAS BEEN A GOVERNMENT OFFICIAL RESPONSIBLE FOR
DETERMINING, UNDER THE STANDARDS OF A NARROWLY DRAWN STATUTE, THAT IT
WAS NECESSARY AND JUSTIFIED IN THE PARTICULAR INSTANCE.  THUS, THE
COURT HAS ALLOWED SUMMARY SEIZURE OF PROPERTY TO COLLECT THE INTERNAL
REVENUE OF THE UNITED STATES, TO MEET THE NEEDS OF A NATIONAL WAR
EFFORT, TO PROTECT AGAINST THE ECONOMIC DISASTER OF A BANK FAILURE, AND
TO PROTECT THE PUBLIC FROM MISBRANDED DRUGS AND CONTAMINATED FOOD." 
407 U.S., AT 91 - 92. 

POSTPONEMENT OF NOTICE AND HEARING UNTIL AFTER SEIZURE OF THE VESSEL
APPARENTLY WAS NOT NEEDED HERE, AS THE DISTRICT COURT HELD.  YET AFTER
THAT TWO-MONTH DELAY, FORFEITURE OF THE VESSEL IS ORDERED WITHOUT
NOTICE TO THE OWNER AND WITHOUT JUST COMPENSATION FOR THE TAKING.  ON
THOSE PREMISES THIS IS THE CLASSIC CASE OF LACK OF PROCEDURAL DUE
PROCESS. 

THE OWNER ON THE RECORD BEFORE US WAS WHOLLY INNOCENT OF KNOWING
THAT THE LESSEE WAS USING THE VESSEL ILLEGALLY.  TO ANALOGIZE THIS CASE
TO THE OLD CASES OF FORFEITURE OF PROPERTY OF FELONS IS PECULIARLY
INAPPROPRIATE.  NOR IS THIS A CASE WHERE OWNER AND LESSEE ARE "IN
CAHOOTS" IN A SMUGGLING VENTURE OR NEGLIGENT IN ANY WAY.  THE LAW DOES
PROVIDE FOR FORFEITURES OF PROPERTY EVEN OF THE INNOCENT.  BUT AS MR.
CHIEF JUSTICE MARSHALL SAID IN PEISCH V. WARE, 4 CRANCH 347, 365:
"(THE LAW IS NOT UNDERSTOOD TO FORFEIT THE PROPERTY OF OWNERS OR
CONSIGNEES, ON ACCOUNT OF THE MISCONDUCT OF MERE STRANGERS, OVER WHOM
SUCH OWNERS OR CONSIGNEES COULD HAVE NO CONTROL." 

THE LESSEE OF THE VESSEL WAS, OF COURSE, NO STRANGER.  HERE UNLIKE
UNITED STATES V. ONE FORD COACH, 307 U.S. 219, 238 - 239 (DOUGLAS, J.,
DISSENTING), THERE IS NO SUGGESTION THAT THE LESSEE WAS A MERE STRAWMAN
FOR RUNNERS OF DRUGS.  EVEN WHERE SUCH AMBIGUOUS CIRCUMSTANCES WERE
PRESENT THE COURT REFUSED TO IMPOSE FORFEITURE OF AN AUTO RUNNING
ILLEGAL WHISKEY AND BELONGING TO THOSE WHO ACTED "IN GOOD FAITH AND
WITHOUT NEGLIGENCE."  ID., AT 236. 

THE PRESENT CASE IS ONE OF EXTREME HARDSHIP.  THE DISTRICT COURT
FOUND THAT THE OWNER "DID NOT KNOW THAT ITS PROPERTY WAS BEING USED FOR
AN ILLEGAL PURPOSE AND WAS COMPLETELY INNOCENT OF THE LESSEE'S CRIMINAL
ACT.  AFTER THE SEIZURE AND WITHIN THE TIME ALLOWED BY LAW, THE
SUPERINTENDENT (OF THE POLICE) NOTIFIED LESSEE.  PLAINTIFF WAS NEVER
NOTIFIED AND, SINCE LESSEE DID NOT POST BOND, THE YACHT WAS FORFEITED
TO THE COMMONWEALTH OF PUERTO RICO.  IT WAS NOT UNTIL PLAINTIFF
ATTEMPTED TO RECOVER POSSESSION OF THE YACHT AFTER LESSEE HAD DEFAULTED
IN THE RENTAL PAYMENTS THAT PLAINTIFF LEARNED OF ITS FORFEITURE."  363
F. SUPP. 1337, 1340.  MOREOVER, THE OWNER HAD INCLUDED IN THE LEASE A
PROHIBITION AGAINST USE OF THE YACHT FOR AN UNLAWFUL PROJECT. 

IF THE YACHT HAD BEEN NOTORIOUSLY USED IN SMUGGLING DRUGS, THOSE WHO
CLAIM FORFEITURE MIGHT HAVE EQUITY ON THEIR SIDE.  BUT NO SUCH SHOWING
WAS MADE; AND SO FAR AS WE KNOW ONLY ONE MARIHUANA CIGARETTE WAS FOUND
ON THE YACHT.  WE DEAL HERE WITH TRIVIA WHERE HARSH JUDGE-MADE LAW
SHOULD BE TEMPERED WITH JUSTICE.  I REALIZE THAT THE ANCIENT LAW IS
FOUNDED ON THE FICTION THAT THE INANIMATE OBJECT ITSELF IS GUILTY OF
WRONGDOING.  UNITED STATES V. UNITED STATES COIN & CURRENCY, 401 U.S.
715, 719 - 720.  BUT THAT TRADITIONAL FORFEITURE DOCTRINE CANNOT AT
TIMES BE RECONCILED WITH THE REQUIREMENTS OF THE FIFTH AMENDMENT.  ID.,
AT 721.  SUCH A CASE IS THE PRESENT ONE. 

SOME FORFEITURE STATUTES ARE MANDATORY, TITLE VESTING IN THE STATE
WHEN THE FORFEITING ACT OCCURS.  UNITED STATES V. STOWELL, 133 U.S. 1,
19.  OTHERS ARE CONDITIONAL, FORFEITURE OCCURRING ONLY IF AND WHEN THE
STATE FOLLOWS PRESCRIBED PROCIDURES.  ONE 1958 PLYMOUTH SEDAN V.
PENNSYLVANIA, 380 U.S. 693, 699.  SOME FORFEITURE STATUTES EXCLUDE FROM
THEIR SCOPE, PROPERTY USED IN VIOLATION OF THE LAW AS TO WHICH THE
OWNER IS NOT "A CONSENTING PARTY OR PRIVY."  SEE 19 U.S.C. 1594.  SOME
PROVIDE FOR DISCRETIONARY ADMINISTRATIVE OR JUDICIAL RELIEF FROM
FORFEITURE IF THE FORFEITURE WAS INCURRED WITHOUT WILLFUL NEGLIGENCE OR
WITHOUT ANY INTENTION ON THE PART OF THE OWNER TO VIOLATE THE LAW, 19
U.S.C. 1618, OR IF THE OWNER HAD AT NO TIME ANY KNOWLEDGE OR REASON TO
BELIEVE THAT THE PROPERTY WAS USED IN VIOLATION OF SPECIFIED LAWS, 18
U.S.C. 3617 (B); UNITED STATES V. ONE FORD COACH, 307 U.S. 219. 

PUERTO RICO, HOWEVER, HAS NO PROVISION FOR MITIGATION IN CASE THE
OWNER OF THE SEIZED PROPERTY IS WHOLLY INNOCENT OF ANY WRONGDOING. 
AND, AS THE COURT SAYS, THESE ABSOLUTE, MANDATORY FORFEITURE PROCEDURES
HAVE BEEN SUPPORTED AT LEAST BY MUCH DICTA IN THE CASES. 

BUT IN MY VIEW, THERE WAS A TAKING OF PRIVATE PROPERTY "FOR PUBLIC
USE" UNDER THE FIFTH AMENDMENT, APPLIED TO THE STATES BY THE
FOURTEENTH, AND COMPENSATION MUST BE PAID AN INNOCENT OWNER.  WHERE THE
OWNER IS IN NO WAY IMPLICATED IN THE ILLEGAL PROJECT, I SEE NO WAY TO
AVOID PAYING JUST COMPENSATION FOR PROPERTY TAKEN.  I, THEREFORE, WOULD
REMAND THE CASE TO THE THREE-JUDGE COURT FOR FINDINGS AS TO THE
INNOCENCE OF THE LESSOR OF THE YACHT--WHETHER THE ILLEGAL USE WAS OF
SUCH MAGNITUDE OR NOTORIETY THAT THE OWNER CANNOT BE FOUND FAULTLESS IN
REMAINING IGNORANT OF ITS OCCURRENCE. 

THE LAW OF DEODANDS /1/  WAS AT ONE TIME AS SEVERE AS THE RULE
APPLIED THIS DAY BY THE COURT.  SEE 34 LAW MAG.  188 - 191 (1845).  ITS
SEVERITY WAS TEMPERED BY JURIES WHO WERE SUSTAINED BY THE KING'S BENCH,
ID., AT 191.  THE "GREAT MODERATION" OF THE JURORS IN LIGHT OF "THE
MORAL INNOCENCE OF THE PARTY INCURRING THE PENALTY,"  ID., AT 190, IS
AN EXAMPLE WE SHOULD FOLLOW HERE.  WHILE THE LAW OF DEODANDS DOES NOT
OBTAIN HERE (CF. GOLDSMITH-GRANT CO. V. UNITED STATES, 254 U.S. 505,
510 - 511; UNITED STATES V. ONE FORD COUPE, 272 U.S. 321, 333), THE
QUALITY OF MERCY IS NO STRANGER TO OUR EQUITY JURISDICTION, HECHT CO.
V. BOWLES, 321 U.S. 321, 329 - 330; UNITED STATES V. WILTBERGER, 5
WHEAT.  76, 95. 

/1/ THE LAW OF DEODANDS STARTING WITH EXODUS 21:28 IS RELATED BY O.
HOLMES, THE COMMON LAW 7 ET SEQ. (1881).  DEODAND DERIVES FROM DEO
DANDUM (TO BE GIVEN TO GOD).  "IT WAS TO BE GIVEN TO GOD, THAT IS TO
SAY TO THE CHURCH, FOR THE KING, TO BE EXPENDED FOR THE GOOD OF HIS
SOUL."  ID., AT 24. 

LYNN R. COLEMAN ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WERE FRANCISCO DE JESUS-SCHUCK, ATTORNEY GENERAL OF PUERTO RICO,
AND MIRIAM NAVIERA DE RODON, SOLICITOR GENERAL. 

GUSTAVO A. GELPI ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 
/1/ 

/1/  SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL PETERSEN,
DEPUTY SOLICITOR GENERAL FREY, GERALD P. NORTON, JEROME M. FEIT, AND
JOSEPH S. DAVIES, JR., FILED A BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL. 
..END :



















BRADLEY V. RICHMOND SCHOOL BOARD, 416 U.S. 696 


       BRADLEY ET AL. V. SCHOOL BOARD OF THE CITY OF RICHMOND ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 72 - 1322.  ARGUED DECEMBER 5, 1973--DECIDED MAY 15,

           1974; (472 F.2D 318, VACATED AND REMANDED.) 


    THE DISTRICT COURT ON MAY 26, 1971, AWARDED TO THE SUCCESSFUL

  PLAINTIFF-PETITIONERS, NEGRO PARENTS AND GUARDIANS, IN THIS

  PROTRACTED LITIGATION INVOLVING THE DESEGREGATION OF THE

  RICHMOND, VIRGINIA, PUBLIC SCHOOLS, EXPENSES AND ATTORNEYS' FEES

  FOR SERVICES RENDERED FROM MARCH 10, 1970, TO JANUARY 29, 1971. 

  ON MARCH 10, 1970, PETITIONERS HAD MOVED IN THE DISTRICT COURT

  FOR ADDITIONAL RELIEF UNDER GREEN V. COUNTY SCHOOL BOARD OF NEW

  KENT COUNTY, 391 U.S. 430, IN WHICH THIS COURT HELD THAT A

  FREEDOM-OF-CHOICE PLAN (LIKE THE ONE PREVIOUSLY APPROVED FOR THE

RICHMOND SCHOOLS) WAS NOT ACCEPTABLE WHERE METHODS PROMISING

  SPEEDIER AND MORE EFFECTIVE CONVERSION TO A UNITARY SCHOOL SYSTEM

  WERE REASONABLY AVAILABLE.  RESPONDENT SCHOOL BOARD THEN CONCEDED

  THAT THE PLAN UNDER WHICH IT HAD BEEN OPERATING WAS NOT

  CONSTITUTIONAL.  AFTER CONSIDERING A SERIES OF ALTERNATIVE AND

  INTERIM PLANS, THE DISTRICT COURT ON APRIL 5, 1971, APPROVED THE

  BOARD'S THIRD PROPOSED PLAN, AND THE ORDER ALLOWING FEES FOLLOWED

  SHORTLY THEREAFTER.  NOTING THE ABSENCE OF ANY EXPLICIT STATUTORY

AUTHORIZATION FOR SUCH AN AWARD IN THIS TYPE OF CASE, THE COURT

  PREDICATED ITS RULING ON THE GROUNDS (1) THAT ACTIONS TAKEN AND

  DEFENSES MADE BY THE SCHOOL BOARD DURING THE RELEVANT PERIOD

  RESULTED IN AN UNREASONABLE DELAY IN DESEGREGATION OF THE

  SCHOOLS, CAUSING PETITIONERS TO INCUR SUBSTANTIAL EXPENDITURES TO

  SECURE THEIR CONSTITUTIONAL RIGHTS, AND (2) THAT PLAINTIFFS IN

  ACTIONS OF THIS KIND WERE ACTING AS "PRIVATE ATTORNEYS GENERAL,"

  NEWMAN V. PIGGIE PARK ENTERPRISES, INC., 390 U.S. 400, 402, IN

  LEADING THE SCHOOL BOARD INTO COMPLIANCE WITH THE LAW, THUS

  EFFECTUATING THE CONSTITUTIONAL GUARANTEES OF NONDISCRIMINATION. 

  THE COURT OF APPEALS REVERSED, STRESSING THAT "IF SUCH AWARDS
ARE

  TO BE MADE TO PROMOTE THE PUBLIC POLICY EXPRESSED IN LEGISLATIVE

  ACTION, THEY SHOULD BE AUTHORIZED BY CONGRESS AND NOT BY THE

  COURTS."  FOLLOWING INITIAL SUBMISSION OF THE CASE TO THE COURT
OF

  APPEALS BUT BEFORE ITS DECISION, CONGRESS ENACTED 718 OF THE

  EDUCATION AMENDMENTS ACT OF 1972, WHICH GRANTED A FEDERAL COURT

  AUTHORITY TO AWARD THE PREVAILING PARTY A REASONABLE ATTORNEY'S

FEE WHEN APPROPRIATE UPON ENTRY OF A FINAL ORDER IN A SCHOOL

  DESEGREGATION CASE, THE APPLICABILITY OF WHICH TO THIS AND OTHER

  LITIGATION THE COURT THEN CONSIDERED.  ##HC697 IN THE OTHER

  CASES, THE COURT HELD THAT 718 DID NOT APPLY TO SERVICES RENDERED

  PRIOR TO JULY 1, 1972, THE EFFECTIVE DATE OF 718, AND IN THIS

  CASE REASONED THAT THERE WERE NO ORDERS PENDING OR APPEALABLE ON

  EITHER MAY 26, 1971, WHEN THE DISTRICT COURT MADE ITS FEE AWARD,

  OR ON JULY 1, 1972, AND THAT THEREFORE 718 COULD NOT BE USED TO

  SUSTAIN THE AWARD.  HELD:  SECTION 718 CAN BE APPLIED TO

  ATTORNEYS'  SERVICES THAT WERE RENDERED BEFORE THAT PROVISION WAS

  ENACTED, IN A SITUATION LIKE THE ONE HERE INVOLVED WHERE THE

  PROPRIETY OF THE FEE AWARD WAS PENDING RESOLUTION ON APPEAL WHEN

  THE STATUTE BECAME LAW.  PP. 710 - 724. 

     (A) AN APPELLATE COURT MUST APPLY THE LAW IN EFFECT AT THE
TIME

  IT RENDERS ITS DECISION, THORPE V. HOUSING AUTHORITY OF THE CITY

  OF DURHAM, 393 U.S. 268, 281, UNLESS SUCH APPLICATION WOULD WORK

  A MANIFEST INJUSTICE OR THERE IS STATUTORY DIRECTION OR

  LEGISLATIVE HISTORY TO THE CONTRARY.  PP. 711 - 716. 

     (B) SUCH INJUSTICE COULD RESULT "IN MERE PRIVATE CASES BETWEEN

  INDIVIDUALS," UNITED STATES V. SCHOONER PEGGY, 1 CRANCH 103, 110,

  THE DETERMINATIVE FACTORS BEING THE NATURE AND IDENTITY OF THE

  PARTIES, THE NATURE OF THEIR RIGHTS, AND THE NATURE OF THE IMPACT

  OF THE CHANGE IN LAW UPON THOSE RIGHTS.  UPON CONSIDERATION OF

  THOSE ASPECTS HERE (SEE INFRA, (C)-(E)), IT CANNOT BE SAID THAT

  THE APPLICATION OF THE STATUTE WOULD CAUSE INJUSTICE.  PP. 716 -

  721. 

     (C) THERE WAS A DISPARITY IN THE RESPECTIVE ABILITIES OF THE

  PARTIES TO PROTECT THEMSELVES, AND THE LITIGATION DID NOT INVOLVE

MERELY PRIVATE INTERESTS.  PETITIONERS RENDERED SUBSTANTIAL

 SERVICE TO THE COMMUNITY AND TO THE BOARD ITSELF BY BRINGING IT

  INTO COMPLIANCE WITH ITS CONSTITUTIONAL MANDATE AND THUS ACTING

  AS A "PRIVATE ATTORNEY GENERAL" IN VINDICATING PUBLIC POLICY. 

  PP. 718 - 719. 

     (D) APPLICATION OF 718 DOES NOT AFFECT ANY MATURED OR

  UNCONDITIONAL RIGHTS, THE SCHOOL BOARD HAVING NO UNCONDITIONAL

  RIGHT TO THE FUNDS ALLOCATED TO IT BY THE TAXPAYERS.  P. 720. 

  (E) NO INCREASED BURDEN WAS IMPOSED SINCE THE STATUTE DID NOT

  ALTER THE BOARD'S CONSTITUTIONAL RESPONSIBILITY FOR PROVIDING

  PUPILS WITH A NONDISCRIMINATORY EDUCATION, AND THERE IS NO CHANGE

  IN THE SUBSTANTIVE OBLIGATION OF THE PARTIES.  PP. 720 - 721. 

     (F) THE COURT OF APPEALS ERRED IN CONCLUDING THAT 718 WAS

  INAPPLICABLE TO THE PETITIONERS' REQUEST FOR FEES BECAUSE THERE

  WAS NO FINAL ORDER PENDING UNRESOLVED ON APPEAL, SINCE THE

  LANGUAGE OF 718 IS NOT TO BE READ TO MEAN THAT A FEE AWARD MUST

  BE MADE SIMULTANEOUSLY WITH THE ENTRY OF A DESEGREGATION ORDER,

AND A DISTRICT COURT MUST HAVE DISCRETION IN A SCHOOL

DESEGREGATION CASE TO AWARD FEES AND COSTS INCIDENT TO THE FINAL

  DISPOSITION OF INTERIM MATTERS.  PP. 721 - 723. 

   (G) SINCE THE DISTRICT COURT MADE AN ALLOWANCE FOR SERVICES TO

  JANUARY 29, 1971, WHEN PEITITONERS WERE NOT YET THE "PREVAILING

  PARTY" WITHIN THE MEANING OF 718, THE FEE AWARD SHOULD BE

  RECOMPUTED TO APRIL 5, 1971, OR THERAFTER.  PP. 723 - 724. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL

  MEMBERS JOINED EXCEPT MARSHALL AND POWELL, JJ., WHO TOOK NO PART

  IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

IN THIS PROTRACTED SCHOOL DESEGREGATION LITIGATION, THE DISTRICT
COURT AWARDED THE PLAINTIFF-PETITIONERS EXPENSES AND ATTORNEYS' FEES
FOR SERVICES RENDERED FROM MARCH 108 1970, TO JANUARY 29, 1971.  53
F.R.D. 28 (ED VA. 1971).  THE UNITED STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT, ONE JUDGE DISSENTING, REVERSED.  472 F.2D 318 (1972). 
WE GRANTED CERTIORARI, 412 U.S. 937 (1973), TO DETERMINE WHETHER THE
ALLOWANCE OF ATTORNEYS' FEES WAS PROPER.  PERTINENT TO THE RESOLUTION
OF THE ISSUE IS THE ENACTMENT IN 1972 OF 718 OF TITLE FII, THE
EMERGENCY SCHOOL AID ACT, 20 U.S.C. 1617 (1970 ED., SUPP. II), AS PART
OF THE EDUCATION AMENDMENTS OF 1972, PUB. L. 92 - 318, 86 STAT. 235,
369. 

        I 

THE SUIT WAS INSTITUTED IN 1961 BY 11 NEGRO PARENTS AND GUARDIANS
AGAINST THE SCHOOL BOARD OF THE CITY OF RICHMOND, VIRGINIA, AS A CLASS
ACTION UNDER THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. 1983, TO
DESEGREGATE THE PUBLIC SCHOOLS.  ON MARCH 16, 1964, AFTER EXTENDED
CONSIDERATION, /1/  THE DISTRICT COURT APPROVED A "FREEDOM OF CHOICE"
PLAN BY WHICH EVERY PUPIL WAS PERMITTED TO ATTEND THE SCHOOL OF THE
PUPIL'S OR THE PARENTS' CHOICE, LIMITED ONLY BY A TIME REQUIREMENT FOR
THE TRANSFER APPLICATION AND BY LACK OF CAPACITY AT THE SCHOOL TO WHICH
TRANSFER WAS SOUGHT.  ON APPEAL, THE FOURTH CIRCUIT, SITTING EN BANC,
AFFIRMED, WITH TWO JUDGES DISSENTING IN PART, AND HELD THAT THE PLAN
SATISFIED THE BOARD'S CONSTITUTIONAL OBLIGATIONS.  345 F. 2D 310
(1965).  THE COURT SAW NO ERROR IN THE TRIAL COURT'S REFUSAL TO ALLOW
THE PLAINTIFFS'  ATTORNEYS MORE THAN A NOMINAL FEE ($75).  ID., AT
321.  THE DISSENTERS REFERRED TO THE FEE AS "EGREGIOUSLY INADEQUATE." 
ID., AT 324.  ON PETITION FOR A WRIT OF CERTIORARI, THIS COURT, PER
CURIAM, 382 U.S. 103 (1965), SUMMARILY HELD THAT THE PETITIONERS
IMPROPERLY HAD BEEN DENIED A FULL EVIDENTIARY HEARING ON THEIR CLAIM
THAT A RACIALLY BASED FACULTY ALLOCATION SYSTEM RENDERED THE PLAN
CONSTITUTIONALLY INADEQUATE UNDER BROWN V. BOARD OF EDUCATION, 347 U.S.
483 (1954).  IN VACATING THE JUDGMENT OF THE COURT OF APPEALS AND IN
REMANDING THE CASES, WE EXPRESSLY DECLINED TO PASS ON THE MERITS OF THE
DESEGREGATION PLAN AND NOTED THAT FURTHER JUDICIAL REVIEW FOLLOWING THE
HEARING WAS NOT PRECLUDED.  382 J.S., AT 105. 

AFTER THE REQUIRED HEARING, THE DISTRICT COURT, ON MARCH 30, 1966,
APPROVED A REVISED "FREEDOM OF CHOICE"  PLAN /2/  SUBMITTED BY THE
BOARD AND AGREED TO BY THE PETITIONERS.  APP. 17A.  IT PROVIDED THAT IF
THE STEPS TAKEN BY THE BOARD "DO NOT PRODUCE SIGNIFICANT RESULTS DURING
THE 1966 - 67 SCHOOL YEAR, IT IS RECOGNIZED THAT THE FREEDOM OF CHOICE
PLAN WILL HAVE TO BE MODIFIED."  ID., AT 23A.  THIS PLAN WAS IN
OPERATION ABOUT FOUR YEARS.  WHILE IT WAS IN EFFECT, GREEN V. COUNTY
SCHOOL BOARD OF NEW KENT COUNTY, 391 U.S. 430 (1968), WAS DECIDED.  THE
COURT THERE HELD THAT WHERE METHODS PROMISING SPEEDIER AND MORE
EFFECTIVE CONVERSION TO A UNITARY SYSTEM WERE REASONABLY AVAILABLE, A
FREEDOM-OF-CHOICE PLAN WAS NOT ACCEPTABLE.  ID., AT 439 - 441. 

THEREAFTER, ON MARCH 10, 1970, PETITIONERS FILED WITH THE DISTRICT
COURT A MOTION FOR FURTHER RELIEF IN THE LIGHT OF THE OPINIONS OF THIS
COURT IN GREEN, SUPRA, IN ALEXANDER V. HOLMES COUNTY BOARD OF
EDUCATION, 396 U.S. 19 (1969), AND IN CARTER V. WEST FELICIANA PARISH
SCHOOL BOARD, 396 U.S. 290 (1970).  SPECIFICALLY, PETITIONERS ASKED
THAT THE COURT "REQUIRE THE DEFENDANT SCHOOL BOARD FORTHWITH TO PUT
INTO EFFECT" A PLAN THAT WOULD "PROMPTLY AND REALISTICALLY CONVERT THE
PUBLIC SCHOOLS OF THE CITY OF RICHMOND INTO A UNITARY NON-RACIAL
SYSTEM," AND THAT THE COURT "AWARD A REASONABLE FEE TO (PETITIONERS')
COUNSEL."  APP. 25A.  THE COURT THEN ORDERED THE BOARD TO ADVISE THE
COURT WHETHER THE PUBLIC SCHOOLS WERE BEING OPERATED "IN ACCORDANCE
WITH THE CONSTITUTIONAL REQUIREMENTS . . . ENUNCIATED BY THE UNITED
STATES SUPREME COURT."  ID., AT 27A.  THE BOARD, BY A STATEMENT
PROMPTLY FILED WITH THE DISTRICT COURT, AVERRED THAT IT HAD OPERATED
THE SCHOOL SYSTEM TO THE BEST OF ITS KNOWLEDGE AND BELIEF IN ACCORDANCE
WITH THE DECREE OF MARCH 30, 1966, BUT THAT IT HAS "BEEN ADVISED"  THAT
THE CITY SCHOOLS WERE "NOT BEING OPERATED AS UNITARY SCHOOLS IN
ACCORDANCE WITH THE MOST RECENT ENUNCIATIONS OF THE SUPREME COURT." 
ID., AT 28A.  IT WAS ALSO ASSERTED THAT THE BOARD HAD REQUESTED THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE TO MAKE A STUDY AND
RECOMMENDATION; THAT THE DEPARTMENT HAD AGREED TO UNDERTAKE TO DO THIS
BY MAY 1; AND THAT THE BOARD WOULD SUBMIT A PLAN FOR THE OPERTION OF
THE PUBLIC SCHOOL SYSTEM NOT LATER THAN MAY 11.  IBID.  FOLLOWING A
HEARING, HOWEVER, THE DISTRICT COURT, ON APRIL 1, 1970, ENTERED A
FORMAL ORDER VACATING ITS ORDER OF MARCH 30, 1966, AND ENJOINING THE
DEFENDANTS "TO DISESTABLISH THE EXISTING DUAL SYSTEM"  AND TO REPLACE
IT "WITH A UNITARY SYSTEM."  SEE 317 F. SUPP. 555, 558 (ED VA. 1970). 
THEREAFTER, THE BOARD AND SEVERAL INTERVENORS FILED DESEGREGATION
PLANS. 

THE INITIAL PLAN OFFERED BY THE BOARD AND HEW WAS HELD UNACCEPTABLE
BY THE DISTRICT COURT ON JUNE 26, 1970.  ID., AT 572.  THE COURT WAS
CONCERNED (A) WITH THE FACT THAT THE BOARD HAD TAKEN NO VOLUNTARY
ACTION TO CHANGE ITS FREEDOM-OR-CHOICE PLAN AFTER THIS COURT'S DECISION
IN GREEN TWO YEARS BEFORE, ID., AT 560, (B) WITH THE PLAN'S FAILURE TO
CONSIDER PATTERNS OF RESIDENTIAL SEGREGATION IN FIXING SCHOOL ZONE
LINES, OR TO USE TRANSPORTATION AS A DESEGREGATION TOOL, DESPITE THE
DECISION IN SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 431 F.2D
138 (CA4 1970), AFF'D AS MODIFIED, 402 U.S. 1 (1971), AND (C) WITH ITS
FAILURE TO CONSIDER RACIAL FACTORS IN ZONING, DESPITE THE APPROVAL
THEREOF IN WARNER V. COUNTY SCHOOL BOARD OF ARLINGTON COUNTY, 357 F.2D
452 (CA4 1966).  317 F. SUPP., AT 577 - 578.  THE DISTRICT COURT ALSO
REJECTED DESEGREGATION PLANS OFFERED BY INTERVENORS AND BY THE
PETITIONERS.  /3/ 

A SECOND PLAN SUBMITTED BY THE BOARD WAS ALSO DEEMED TO BE
UNSATISFACTORY IN CERTAIN RESPECTS.  NONETHELESS, ON AUGUST 17 THE
COURT FOUND ITS ADOPTION ON AN INTERIM BASIS FOR 1970 - 1971 TO BE
NECESSARY, SINCE THE SCHOOL YEAR WAS TO BEGIN IN TWO WEEKS.  /4/  ID.,
AT 578.  THE COURT DIRECTED THE DEFENDANTS TO FILE WITHIN 90 DAYS A
REPORT SETTING OUT THE STEPS TAKEN "TO CREATE A UNITARY SYSTEM . . .
AND . . . THE EARLIEST PRACTICAL AND REASONABLE DATE THAT ANY SUCH
SYSTEM COULD BE PUT INTO EFFECT."  IBID. 

THE BOARD THEN SUBMITTED THREE OTHER DESEGREGATION PLANS.  HEARINGS
WERE HELD ON THESE AND ON STILL ANOTHER PLAN SUBMITTED BY THE
PETITIONERS.  /5/  ON APRIL 5, 1971, THE COURT ADOPTED THE BOARD'S
THIRD PLAN, WHICH INVOLVED PUPIL REASSIGNMENTS AND EXTENSIVE
TRANSPORTATION WITHIN THE CITY.  325 F. SUPP. 828 (ED VA. 1971).  /6/ 

MEANWHILE, THE BOARD HAD MOVED FOR LEAVE TO MAKE THE SCHOOL BOARDS
AND GOVERNING BODIES OF ADJOINING CHESTERFIELD AND HENRICO COUNTIES, AS
WELL AS THE VIRGINIA STATE BOARD OF EDUCATION, PARTIES TO THE
LITIGATION, AND TO SERVE UPON THESE ENTITIES A THIRD-PARTY COMPLAINT TO
COMPEL THEM TO TAKE ALL NECESSARY ACTION TO BRING ABOUT THE
CONSOLIDATION OF THE SYSTEMS AND THE MERGER OF THE BOARDS.  THE COURT
DENIED THE DEFENSE MOTION FOR THE CONVENING OF A THREE-JUDGE COURT. 
324 F. SUPP. 396 NED VA. 1971). 

ON JANUARY 10, 1972, THE COURT ORDERED INTO EFFECT A PLAN FOR THE
INTEGRATION OF THE RICHMOND SCHOOLS WITH THOSE OF HENRICO AND
CHESTERFIELD COUNTIES.  338 F. SUPP. 67 (ED VA. 1972).  ON APPEAL, THE
FOURTH CIRCUIT, SITTING EN BANC, REVERSED, WITH ONE JUDGE DISSENTING,
HOLDING THAT STATE-IMPOSED SEGREGATION HAD BEEN "COMPLETELY REMOVED" IN
THE RICHMOND SCHOOL DISTRICT AND THAT THE CONSOLIDATION WAS NOT
JUSTIFIED IN THE ABSENCE OF A SHOWING OF COME CONSTITUTIONAL VIOLATION
IN THE ESTABLISHMENT AND MAINTENANCE OF THESE ADJOINING AND SEPARATE
SCHOOL DISTRICTS.  462 F.2D 1058, 1069 (CA4 1972).  WE GRANTED CROSS
/PETITIONS FOR WRITS OF CERTIORARI.  409 U.S. 1124 (1973).  ATER
ARGUMENT, THE COURT OF APPEALS' JUDGMENT WAS AFFIRMED BY AN EQUALLY
DIVIDED COURT.  RICHMOND SCHOOL BOARD V. BOARD OF EDUCATION, 412 U.S.
92 (1973). 

   II 

THE PETITIONERS' REQUEST FOR A SIGNIFICANT AWARD OF ATTORNEYS'  FEES
WAS INCLUDED, AS HAS BEEN NOTED, IN THEIR PIVOTAL MOTION OF MARCH 10,
1970.  APP.25A.  THAT APPLICATION WAS RENEWED ON JULY 2.  ID., AT 66A. 
THE DISTRICT COURT FIRST SUGGESTED, BY LETTER TO THE PARTIES, THAT THEY
ATTEMPT TO REACH AGREEMENT AS TO FEES.  WHEN AGREEMENT WAS NOT REACHED,
THE COURT CALLED FOR SUPPORTING MATERIAL AND BRIEFS.  /7/  IN DUE
COURSE THE COURT AWARDED COUNSEL FEES IN THE AMOUNT OF $43,355 FOR
SERVICES RENDERED FROM MARCH 10, 1970, TO JANUARY 29, 1971, AND
EXPENSES OF $13,064.65.  53F.R.D. 28, 43 - 44 (ED VA. 1971). 

NOTING THE ABSENCE AT THAT TIME OF ANY EXPLICIT STATUTORY
AUTHORIZATION FOR AN AWARD OF FEES IN SCHOOL DESEGREGATION ACTIONS,
ID., AT 34, THE COURT BASED THE AWARD ON TWO ALTERNATIVE GROUNDS ROOTED
IN ITS GENERAL EQUITY POWER.  /8/  FIRST, THE COURT OBSERVED THAT PRIOR
DESEGREGATION DECISIONS DEMONSTRATED THE PROPRIETY OF AWARDING COUNSEL
FEES WHEN THE EVIDENCE REVEALED OBSTINATE NONCOMPLIANCE WITH THE LAW OR
THE USE OF THE JUDICIAL PROCESS FOR PURPOSES OF HARASSMENT OR DELAY IN
AFFORDING RIGHTS CLEARLY OWED.  /9/  APPLYING THE TEST ENUNCIATED BY
THE FOURTH CIRCUIT IN 345 F.2D, AT 321, THE COURT SOUGHT TO DETERMINE
WHETHER "THE BRINGING OF THE ACTION SHOULD HAVE BEEN UNNECESSARY AND
WAS COMPELLED BY THE SCHOOL BOARD'S UNREASONABLE, OBDURATE OBSTINACY." 
EXAMINING THE HISTORY OF THE LITIGATION, THE COURT FOUND THAT AT LEAST
SINCE 1968 THE BOARD CLEARLY HAD BEEN IN DEFAULT IN ITS CONSTITUTIONAL
DUTY AS ENUNCIATED IN GREEN.  WHILE RELUCTANT TO CHARACTERIZE THE
LITIGATION ENGENDERED BY THAT DEFAULT AS UNNECESSARY IN VIEW OF THE
ONGOING DEVELOPMENT OF RELEVANT LEGAL STANDARDS, THE COURT OBSERVED
THAT THE ACTIONS TAKEN AND THE DEFENSES ASSERTED BY THE BOARD HAD
CAUSED AN UNREASONABLE DELAY IN THE DESEGREGATION OF THE SCHOOLS AND,
AS A RESULT, HAD CAUSED THE PLAINTIFFS TO INCUR SUBSTANTIAL
EXPENDITURES OF TIME AND MONEY TO SECURE THEIR CONSTITUTIONAL RIGHTS. 
/10/ 

AS AN ALTERNATIVE BASIS FOR THE AWARD, THE DISTRICT COURT OBSERVED
THAT THE CIRCUMSTANCES THAT PERSUADED CONGRESS TO AUTHORIZE BY STATUTE
THE PAYMENT OF COUNSEL FEES UNDER CERTAIN SECTIONS OF THE CIVIL RIGHTS
ACT OF 1964 /11/  WERE PRESENT IN EVEN GREATER DEGREE IN SCHOOL
DESEGREGATION LITIGATION.  IN 1970 - 1971, CASES OF THIS KIND WERE
CHARACTERIZED BY COMPLEX ISSUES PRESSED ON BEHALF OF LARGE CLASSES AND
THUS INVOLVED SUBSTANTIAL EXPENDITURES OF LAWYERS' TIME WITH LITTLE
LIKELIHOOD OF COMPENSATION OR AWARD OF MONETARY DAMAGES.  IF FORCED TO
BEAR THE BURDEN OF ATTORNEYS'  FEES, FEW AGGRIEVED PERSONS WOULD BE IN
A POSITION TO SECURE THEIR AND THE PUBLIC'S INTERESTS IN A
NONDISCRIMINATORY PUBLIC SCHOOL SYSTEM.  REASONING FROM THIS COURT'S
PER CURIAM DECISION, IN NEWMAN V. PIGGIE PARK ENTERPRISES, INC., 390
U.S. 400, 402 (1968), THE DISTRICT JUDGE HELD THAT PLAINTIFFS IN
ACTIONS OF THIS KIND WERE ACTING AS PRIVATE ATTORNEYS GENERAL IN
LEADING SCHOOL BOARDS INTO COMPLIANCE WITH THE LAW, THEREBY
EFFECTUATING THE CONSTITUTIONAL GUARANTEE OF NONDISCRIMINATION AND
RENDERING APPROPRIATE THE AWARD OF COUNSEL FEES.  53 F.R.D., AT 41 -
42.  THE COURT OF APPEALS, IN REERSING, EMPHASIZED THAT THE BOARD WAS
NOT OPERATING "IN AN AREA WHERE THE PRACTICAL METHODS TO BE USED WERE
PLAINLY ILLUMINATED OR WHERE PRIOR DECISIONS HAD NOT LEFT A 'LINGERING
DOUBT' AS TO THE PROPER PROCEDURE TO BE FOLLOWED," PARTICULARLY IN THE
LIGHT OF UNCERTAINTIES EXISTING PRIOR TO THIS COURT'S THEN IMPENDING
DECISION IN SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S.
1 (1971).  472 F. 2D, AT 327.  IT FELT THAT BY THE FAILURE OF CONGRESS
TO PROVIDE SPECIFICALLY FOR COUNSEL FEES "IN A STATUTORY SCHEME
DESIGNED TO FURTHER A PUBLIC PURPOSE, IT MAY BE FAIRLY ACCEPTED THAT IT
DID SO PURPOSEFULLY," AND THAT "IF SUCH AWARDS ARE TO BE MADE TO
PROMOTE THE PUBLIC POLICY EXPRESSED IN LEGISLATIVE ACTION, THEY SHOULD
BE AUTHORIZED BY CONGRESS AND NOT BY THE COURTS."  ID., AT 330 - 331. 

AFTER INITIAL SUBMISSION OF THE CASE TO THE COURT OF APPEALS, BUT
PRIOR TO ITS DECISION, THE EDUCATION AMENDMENTS OF 1972, OF WHICH 718
OF TITLE VII OF THE EMERGENCY SCHOOL AID ACT IS A PART, BECAME LAW. 
FEDERAL COURT TO AWARD A REASONABLE ATTORNEY'S FEE WHEN APPROPRIATE IN
A SCHOOL DESEGREGATION CASE.  /12/  THE COURT OF APPEALS, SITTING EN
BANC, THEN HEARD ARGUMENT AS TO THE APPLICABILITY OF 718 TO THIS AND
OTHER LITIGATION.  /13/  IN THE OTHER CASES IT HELD THAT ONLY LEGAL
SERVICES RENDERED AFTER JULY 1, 1972, THE EFFECTIVE DATE OF 718, SEE
PUB. L. 92 - 318, 2 (C) (1), 86 STAT. 236, WERE COMPENSABLE UNDER THAT
STATUTE.  THOMPSON V. SCHOOL BOARD OF THE CITY OF NEWPORT NEWS, 472
F.2D 177 (CA4 1972).  IN THE INSTANT CASE THE COURT HELD THAT, BECAUSE
THERE WERE NO ORDERS PENDING OR APPEALABLE ON EITHER MAY 26, 1971, WHEN
THE DISTRICT COURT MADE ITS FEE AWARD, OR ON JULY 1, 1972, WHEN THE
STATUTE BECAME EFFECTIVE, 718 DID NOT SUSTAIN THE ALLOWANCE OF COUNSEL
FEES.              III 

IN NORTHCROSS V. BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, 412
U.S. 427, 428 (1973), WE HELD THAT UNDER 718 "THE SUCCESSFUL PLAINTIFF
'SHOULD ORDINARILY RECOVER AN ATTORNEY'S FEE UNLESS SPECIAL
CIRCUMSTANCES WOULD RENDER SUCH AN AWARD UNJUST.'"  WE DECIDE TODAY A
QUESTION LEFT OPEN IN NORTHCROSS, NAMELY, "WHETHER 718 AUTHORIZES AN
AWARD OF ATTORNEYS' FEES INSOFAR AS THOSE EXPENSES WERE INCURRED PRIOR
TO THE DATE THAT THAT SECTION CAME INTO EFFECT."  ID., AT 429 N. 2. 

THE DISTRICT COURT IN THIS CASE AWARDED COUNSEL FEES FOR SERVICES
RENDERED FROM MARCH 10, 1970, WHEN PETITIONERS FILED THEIR MOTION FOR
FURTHER RELIEF, TO JANUARY 29, 1971, WHEN THE COURT DECLINED TO
IMPLEMENT THE PLAN PROPOSED BY THE PETITIONERS.  IT MADE ITS AWARD ON
MAY 26, 1971, AFTER IT HAD ORDERED INTO EFFECT THE NON-INTERIM
DESEGREGATION PLAN WHICH IT HAD APPROVED.  THE BOARD APPEALED FROM THAT
AWARD, AND ITS APPEAL WAS PENDING WHEN CONGRESS ENACTED 718.  THE
QUESTION, PROPERLY VIEWED, THEN, IS NOT SIMPLY ONE RELATING TO THE
PROPRIETY OF RETROACTIVE APPLICATION OF 718 TO SERVICES RENDERED PRIOR
TO ITS ENACTMENT, BUT RATHER, ONE RELATING TO THE APPLICABILITY OF THAT
RESOLUTION ON APPEAL WHEN THE STATUTE BECAME LAW. 

THIS COURT IN THE PAST HAS RECOGNIZED A DISTINCTION BETWEEN THE
APPLICATION OF A CHANGE IN THE LAW THAT TAKES PLACE WHILE A CASE IS ON
DIRECT REVIEW, ON THE ONE HAND, AND ITS EFFECT ON A FINAL JUDGMENT /14/
UNDER COLLATERAL ATTACK, /15/  ON THE OTHER HAND.  LINKLETTER V.
WALKER, 381 U.S. 618, 627 (1965).  WE ARE CONCERNED HERE ONLY WITH
DIRECT REVIEW. 

        A 

WE ANCHOR OUR HOLDING IN THIS CASE ON THE PRINCIPLE THAT A COURT IS
TO APPLY THE LAW IN EFFECT AT THE TIME IT RENDERS ITS DECISION, UNLESS
DOING SO WOULD RESULT IN MANIFEST INJUSTICE OR THERE IS STATUTORY
DIRECTION OR LEGISLATIVE HISTORY TO THE CONTRARY. 

THE ORIGIN AND THE JUSTIFICATION FOR THIS RULE ARE FOUND IN THE
WORDS OF MR. CHIEF JUSTICE MARSHALL IN UNITED STATES V. SCHOONER PEGGY,
1 CRANCH 103 (1801): 

     "IT IS IN THE GENERAL TRUE THAT THE PROVINCE OF AN APPELLATE

  COURT IS ONLY TO ENQUIRE WHETHER A JUDGMENT WHEN RENDERED WAS

  ERRONEOUS OR NOT.  ##HC712 BUT IF SUBSEQUENT TO THE JUDGMENT AND

  BEFORE THE DECISION OF THE APPELLATE COURT, A LAW INTERVENES AND

POSITIVELY CHANGES THE RULE WHICH GOVERNS, THE LAW MUST BE

 OBEYED, OR ITS OBLIGATION DENIED.  IF THE LAW BE CONSTITUTIONAL .

  . . I KNOW OF NO COURT WHICH CAN CONTEST ITS OBLIGATION.  IT IS

  TRUE THAT IN MERE PRIVATE CASES BETWEEN INDIVIDUALS, A COURT WILL

  AND OUGHT TO STRUGGLE HARD AGAINST A CONSTRUCTION WHICH WILL, BY

  A RETROSPECTIVE OPERATION, AFFECT THE RIGHTS OF PARTIES, BUT IN

  GREAT NATIONAL CONCERNS . . . THE COURT MUST DECIDE ACCORDING TO

  EXISTING LAWS, AND IF IT BE NECESSARY TO SET ASIDE A JUDGMENT,

RIGHTFUL WHEN RENDERED, BUT WHICH CANNOT BE AFFIRMED BUT IN

  VIOLATION OF LAW, THE JUDGMENT MUST BE SET ASIDE."  ID., AT 110. 

  /16/ 

IN THE WAKE OF SCHOONER PEGGY, HOWEVER, IT REMAINED UNCLEAR WHETHER
A CHANGE IN THE LAW OCCURRING WHILE A CASE WAS PENDING ON APPEAL WAS TO
BE GIVEN EFFECT ONLY WHERE, BY ITS TERMS, THE LAW WAS TO APPLY TO
PENDING CASES, AS WAS TRUE OF THE CONVENTION UNDER CONSIDERATION IN
SCHOONER PEGGY, OR, CONVERSELY, WHETHER SUCH A CHANGE IN THE LAW MUST
BE GIVEN EFFECT UNLESS THERE WAS CLEAR INDICATION THAT IT WAS NOT TO
APPLY IN PENDING CASES.  FOR A VERY LONG TIME THE COURT'S DECISIONS DID
LITTLE TO CLARIFY THIS ISSUE.  /17/ 

ULTIMATELY, IN THORPE V. HOUSING AUTHORITY OF THE CITY OF DURHAM,
393 U.S. 268 (1969), THE BROADER READING OF SCHOONER PEGGY WAS ADOPTED,
AND THIS COURT RULED THAT "AN APPELLATE COURT MUST APPLY THE LAW IN
EFFECT AT THE TIME IT RENDERS ITS DECISION."  ID., AT 28.  IN THAT
CASE, AFTER THE PLAINTIFF HOUSING AUTHORITY HAD SECURED A STATE COURT
EVICTION ORDER, AND IT HAD BEEN AFFIRMED BY THE SUPREME COURT OF NORTH
CAROLINA, HOUSING AUTHORITY OF THE CITY OF DURHAM V. THORPE, 267 N.C.
431, 148 S.E. 2D 290 (1966), AND THIS COURT HAD GRANTED CERTIORARI, 385
U.S. 967 (1966), THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
ORDERED A NEW PROCEDURAL PREREQUISITE FOR AN EVICTION.  FOLLOWING
REMAND BY THIS COURT FOR SUCH FURTHER PROCEEDINGS AS MIGHT BE
APPROPRIATE IN THE LIGHT OF THE NEW DIRECTIVE, 386 U.S. 670 (1967), THE
STATE COURT ADHERED TO ITS DECISION.  271 N.C. 468, 157 S.E. 2D 147
(1967).  /18/  THIS COURT AGAIN GRANTED CERTIORARI.  390 U.S. 942
(1968).  UPON REVIEW, WE HELD THAT, ALTHOUGH THE CIRCULAR EFFECTING THE
CHANGE DID NOT INDICATE WHETHER IT WAS TO BE APPLIED TO PENDING CASES
OR TO EVENTS THAT HAD TRANSPIRED PRIOR TO ITS ISSUANCE,  /19/  IT WAS,
NONETHELESS, TO BE APPLIED TO ANYONE RESIDING IN THE HOUSING PROJECT ON
THE DATE OF ITS PROMULGATION.  THE COURT RECITED THE LANGUAGE IN
SCHOONER PEGGY, QUOTED ABOVE , AND NOTED THAT THAT REASONING "HAS BEEN
APPLIED WHERE THE CHANGE WAS CONSTITUTIONAL, STATUTORY, OR JUDICIAL,"
393 U.S., AT 282 (FOOTNOTES OMITTED), AND THAT IT MUST APPLY "WITH
EQUAL FORCE WHERE THE CHANGE IS MADE BY AN ADMINISTRATIVE AGENCY ACTING
PURSUANT TO LEGISLATIVE AUTHORIZATION."  IBID.  THORPE THUS STANDS FOR
THE PROPOSITION THAT EVEN WHERE THE INTERVENING LAW DOES NOT EXPLICITLY
RECITE THAT IT IS TO BE APPLIED TO PENDING CASES, IT IS TO BE GIVEN
RECOGNITION AND EFFECT. 

ACCORDINGLY, WE MUST REJECT THE CONTENTION THAT A CHANGE IN THE LAW
IS TO BE GIVEN EFFECT IN A PENDING CASE ONLY WHERE THAT IS THE CLEAR
AND STATED INTENTION OF THE LEGISLATURE.  /20/  WHILE NEITHER OUR
DECISION IN THORPE NOR OUR DECISION TODAY PURPORTS TO HOLD THAT COURTS
MUST ALWAYS THUS APPLY NEW LAWS TO PENDING CASES IN THE ABSENCE OF
CLEAR LEGISLATIVE DIRECTION TO THE CONTRARY, /21/  WE DO NOTE THAT
INSOFAR AS THE LEGISLATIVE HISTORY OF 718 IS SUPPORTIVE OF EITHER
POSITION, /22/  IT WOULD SEEM TO PROVIDE AT LEAST IMPLICIT SUPPORT FOR
THE APPLICATION OF THE STATUTE TO PENDING CASES.  /23/

        B 

THE COURT IN THORPE, HOWEVER, OBSERVED THAT EXCEPTIONS TO THE
GENERAL RULE THAT A COURT IS TO APPLY A LAW IN EFFECT AT THE TIME IT
RENDERS ITS DECISION "HAD BEEN MADE TO PREVENT MANIFEST INJUSTICE,"
CITING GREENE V. UNITED STATES, 376 U.S. 149 (1964).  /24/  ALTHOUGH
THE PRECISE CATEGORY OF CASES TO WHICH THIS EXCEPTION APPLIES HAS NOT
BEEN CLEARLY DELINEATED, THE COURT IN SCHOONER PEGGY SUGGESTED THAT
SUCH INJUSTICE COULD RESULT "IN MERE PRIVATE CASES BETWEEN
INDIVIDUALS," AND IMPLORED THE COURTS TO "STRUGGLE HARD AGAINST A
CONSTRUCTION WHICH WILL, BY A RETROSPECTIVE OPERATION, AFFECT THE
RIGHTS OF PARTIES."  1 CRANCH, AT 110.  WE PERCEIVE NO SUCH THREAT OF
MANIFEST INJUSTICE PRESENT IN THIS CASE.  WE DECLINE, ACCORDINGLY, TO
CATEGORIZE IT AS AN EXCEPTION TO THORPE'S GENERAL RULE. 

THE CONCERNS EXPRESSED BY THE COURT IN SCHOONER PEGGY AND IN THORPE
RELATIVE TO THE POSSIBLE WORKING OF AN INJUSTICE CENTER UPON (A) THE
NATURE AND IDENTITY OF THE PARTIES, (B) THE NATURE OF THEIR RIGHTS, AND
(C) THE NATURE OF THE IMPACT OF THE CHANGE IN LAW UPON THOSE RIGHTS. 

IN THIS CASE THE PARTIES CONSIST, ON THE ONE HAND, OF THE SCHOOL
BOARD, A PUBLICLY FUNDED GOVERNMENTAL ENTITY, AND, ON THE OTHER, A
CLASS OF CHILDREN WHOSE CONSTITUTIONAL RIGHT TO A NONDISCRIMINATORY
EDUCATION HAS BEEN ADVANCED BY THIS LITIGATION.  THE DISTRICT COURT
RATHER VIVIDLY DESCRIBED WHAT IT REGARDED AS THE DISPARITY IN THE
RESPECTIVE ABILITIES OF THE PARTIES ADEQUATELY TO PRESENT AND PROTECT
THEIR INTERESTS.  /25/  MOREOVER, SCHOOL DESEGREGATION LITIGATION IS OF
A KIND DIFFERENT FROM "MERE PRIVATE CASES BETWEEN INDIVIDUALS."  WITH
THE BOARD RESPONSIBLE FOR THE EDUCATION OF THE VERY STUDENTS WHO
BROUGHT SUIT AGAINST IT TO REQUIRE THAT SUCH EDUCATION COMPORT WITH
CONSTITUTIONAL STANDARDS, IT IS NOT APPROPRIATE TO VIEW THE PARTIES AS
ENGAGED IN A ROUTINE PRIVATE LAWSUIT.  IN THIS LITIGATION THE
PLAINTIFFS MAY BE RECOGNIZED AS HAVING RENDERED SUBSTANTIAL SERVICE
BOTH TO THE BOARD ITSELF, BY BRINGING IT INTO COMPLIANCE WITH ITS
CONSTITUTIONAL MANDATE, AND TO THE COMMUNITY AT LARGE BY SECURING FOR
IT THE BENEFITS ASSUMED TO FLOW FROM A NONDISCRIMINATORY EDUCATIONAL
SYSTEM.  /26/  BROWN V. BOARD OF EDUCATION, 347 U.S., AT 494. 

IN NORTHCROSS WE CONSTRUED, AS IN PARI PASSU, 718 AND 204 (B) OF THE
CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000A - 3 (B), PROVIDING FOR AN
AWARD OF COUNSEL FEES TO A SUCCESSFUL PLAINTIFF UNDER THE PUBLIC
ACCOMMODATIONS SUBCHAPTER OF THAT ACT.  OUR DISCUSSION OF THE LATTER
PROVISION IN PIGGIE PARK IS PARTICULARLY APT IN THE CONTEXT OF SCHOOL
DESEGREGATION LITIGATION: 

"WHEN THE CIVIL RIGHTS ACT OF 1964 WAS PASSED, IT WAS EVIDENT

  THAT ENFORCEMENT WOULD PROVE DIFFICULT AND THAT THE NATION WOULD

  HAVE TO RELY IN PART UPON PRIVATE LITIGATION AS A MEANS OF

  SECURING BROAD COMPLIANCE WITH THE LAW.  A TITLE II SUIT IS THUS

  PRIVATE IN FORM ONLY.  WHEN A PLAINTIFF BRINGS AN ACTION UNDER

  THAT TITLE, HE CANNOT RECOVER DAMAGES.  IF HE OBTAINS AN

  INJUNCTION, HE DOES SO NOT FOR HIMSELF ALONE BUT ALSO AS A

  'PRIVATE ATTORNEY GENERAL,' VINDICATING A POLICY THAT CONGRESS

  CONSIDERED OF THE HIGHEST PRIORITY.  IF SUCCESSFUL PLAINTIFFS

  WERE ROUTINELY FORCED TO BEAR THEIR OWN ATTORNEYS' FEES, FEW

  AGGRIEVED PARTIES WOULD BE IN A POSITION TO ADVANCE THE PUBLIC

INTEREST BY INVOKING THE INJUNCTIVE POWERS OF THE FEDERAL

COURTS."  390 U.S., AT 401 - 402 (FOOTNOTES OMITTED). 

APPLICATION OF 718 TO SUCH LITIGATION WOULD THUS APPEAR TO HAVE BEEN
ANTICIPATED BY MR. CHIEF JUSTICE MARSHALL IN SCHOONER PEGGY WHEN HE
NOTED THAT IN "GREAT NATIONAL CONCERNS . . . THE COURT MUST DECIDE
ACCORDING TO EXISTING LAWS."  1 CRANCH, AT 110.  INDEED, THE
CIRCUMSTANCES SURROUNDING THE PASSAGE OF 718, AND THE NUMEROUS
EXPRESSIONS OF CONGRESSIONAL CONCERN AND INTENT WITH RESPECT TO THE
ENACTMENT OF THAT STATUTE, ALL PROCLAIM ITS STATUS AS HAVING TO DO WITH
A "GREAT NATIONAL CONCERN."  /27/ 

THE SECOND ASPECT OF THE COURT'S CONCERN THAT INJUSTICE MAY ARISE
FROM RETROSPECTIVE APPLICATION OF A CHANGE IN LAW RELATES TO THE NATURE
OF THE RIGHTS EFFECTED BY THE CHANGE.  THE COURT HAS REFUSED TO APPLY
AN INTERVENING CHANGE TO A PENDING ACTION WHERE IT HAS CONCLUDED THAT
TO DO SO WOULD INFRINGE UPON OR DEPRIVE A PERSON OF A RIGHT THAT HAD
MATURED OR BECOME UNCONDITIONAL.  SEE GREENE V. UNITED STATES, 376
U.S., AT 160; CLARIDGE APARTMENTS CO. V. COMMISSIONER, 323 U.S. 1418
164 (1944); UNION PACIFIC R. CO. V. LARAMIE STOCK YARDS CO., 231 U.S.
190, 199 (1913).  WE FIND HERE NO SUCH MATURED OR UNCONDITIONAL RIGHT
AFFECTED BY THE APPLICATION OF 718.  IT CANNOT BE CLAIMED THAT THE
PUBLICLY ELECTED SCHOOL BOARD HAD SUCH A RIGHT IN THE FUNDS ALLOCATED
TO IT BY THE TAXPAYERS.  THESE FUNDS WERE ESSENTIALLY HELD IN TRUST FOR
THE PUBLIC, AND AT ALL TIMES THE BOARD WAS SUBJECT TO SUCH CONDITIONS
OR INSTRUCTIONS ON THE USE OF THE FUNDS AS THE PUBLIC WISHED TO MAKE
THROUGH ITS DULY ELECTED REPRESENTATIVES. 

THE THIRD CONCERN HAS TO DO WITH THE NATURE OF THE IMPACT OF THE
CHANGE IN LAW UPON EXISTING RIGHTS, OR, TO STATE IT ANOTHER WAY, STEMS
FROM THE POSSIBILITY THAT NEW AND UNANTICIPATED OBLIGATIONS MAY BE
IMPOSED UPON A PARTY WITHOUT NOTICE OR AN OPPORTUNITY TO BE HEARD.  IN
THORPE, WE WERE CAREFUL TO NOTE THAT BY THE CIRCULAR THE "RESPECTIVE
OBLIGATIONS OF BOTH HUD AND THE AUTHORITY UNDER THE ANNUAL
CONTRIBUTIONS CONTRACT REMAIN UNCHANGED . . . LIKEWISE, THE LEASE
AGREEMENT BETWEEN THE AUTHORITY AND PETITIONER REMEAINS INVIOLATE." 
393 U.S., AT 279.  HERE NO INCREASED BURDEN WAS IMPOSED SINCE 718 DID
NOT ALTER THE BOARD'S CONSTITUTIONAL RESPONSIBILITY FOR PROVIDING
PUPILS WITH A NONDISCRIMINATORY EDUCATION.  ALSO, THERE WAS NO CHANGE
IN THE SUBSTANTIVE OBLIGATION OF THE PARTIES.  FROM THE OUTSET, UPON
THE FILING OF THE ORIGINAL COMPLAINT IN 1961, THE BOARD ENGAGED IN A
CONSCIOUS COURSE OF CONDUCT WITH THE KNOWLEDGE THAT, UNDER DIFFERENT
THEORIES, DISCUSSED BY THE DISTRICT COURT AND THE COURT OF APPEALS, THE
BOARD COULD HAVE BEEN REQUIRED TO PAY ATTORNEYS' FEES.  EVEN ASSUMING A
DEGREE OF UNCERTAINTY IN THE LAW AT THAT TIME REGARDING THE BOARD'S
CONSTITUTIONAL OBLIGATIONS, THERE IS NO INDICATION THAT THE OBLIGATION
UNDER 718, IF KNOWN, RATHER THAN SIMPLY THE COMMON-LAW AVAILABILITY OF
AN AWARD, WOULD HAVE CAUSED THE BOARD TO ORDER ITS CONDUCT SO AS TO
RENDER THIS LITIGATION UNNECESSARY AND THEREBY PRECLUDE THE INCURRING
OF SUCH COSTS. 

THE AVAILABILITY OF 718 TO SUSTAIN THE AWARD OF FEES AGAINST THE
BOARD THEREFORE MERELY SERVES TO CREATE AN ADDITIONAL BASIS OR SOURCE
FOR THE BOARD'S POTENTIAL OBLIGATION TO PAY ATTORNEYS' FEES.  IT DOES
NOT IMPOSE AN ADDITIONAL OR UNFORESEEABLE OBLIGATION UPON IT. 

ACCORDINGLY, UPON CONSIDERING THE PARTIES, THE NATURE OF THE RIGHTS,
AND THE IMPACT OF 718 UPON THOSE RIGHTS, IT CANNOT BE SAID THAT THE
APPLICATION OF THE STATUTE TO AN AWARD OF FEES FOR SERVICES RENDERED
PRIOR TO ITS EFFECTIVE DATE, IN AN ACTION PENDING ON THAT DATE, WOULD
CAUSE "MANIFEST INJUSTICE," AS THAT TERM IS USED IN THORPE, SO AS TO
COMPEL AN EXCEPTION OF THE CASE FROM THE RULE OF SCHOONER PEGGY. 

        C 

FINALLY, WE DISAGREE WITH THE COURT OF APPEALS' CONCLUSION THAT 718
BY ITS VERY TERMS IS INAPPLICABLE TO THE PETITIONERS' REQUEST FOR FEES
"BECAUSE THERE WAS NO 'FINAL ORDER' PENDING UNRESOLVED ON APPEAL," 472
F.2D, AT 331, WHEN 718 BECAME EFFECTIVE, OR ON MAY 26, 1971, WHEN THE
DISTRICT COURT MADE ITS AWARD. 

IT IS TRUE THAT WHEN THE DISTRICT COURT ENTERED ITS ORDER, IT WAS AT
LEAST ARGUABLE THAT THE PETITIONERS HAD NOT YET BECOME "THE PREVAILING
PARTY," WITHIN THE MEANING OF 718.  THE APPLICATION FOR FEES HAD BEEN
INCLUDED IN THEIR MARCH 10, 1970, MOTION FOR FURTHER RELIEF IN THE
LIGHT OF DEVELOPMENTS INDICATED BY THE DECISION TWO YEARS BEFORE IN
GREEN.  THE BOARD'S FIRST PLAN WAS DISAPPROVED BY THE DISTRICT COURT ON
JUNE 26.  ITS SECOND PLAN WAS ALSO DISAPPROVED BUT WAS ORDERED INTO
EFFECT ON AN INTERIM BASIS ON AUGUST 17 FOR THE YEAR ABOUT TO BEGIN. 
THE THIRD PLAN WAS ULTIMATELY APPROVED ON APRIL 5, 1971, AND THE ORDER
ALLOWING FEES FOLLOWED SHORTLY THEREAFTER.     SURELY, THE LANGUAGE OF
718 IS NOT TO BE READ TO THE EFFECT THAT A FEE AWARD MUST BE MADE
SIMULTANEOUSLY WITH THE ENTRY OF A DESEGREGATION ORDER.  THE STATUTE,
INSTEAD, EXPECTEDLY MAKES THE EXISTENCE OF A FINAL ORDER A PREREQUISITE
TO THE AWARD.  THE UNMANAGEABILITY OF A REQUIREMENT OF SIMULTANEITY IS
APPARENT WHEN ONE CONSIDERS THE TYPICAL COURSE OF LITIGATION IN A
SCHOOL DESEGREGATION ACTION.  THE HISTORY OF THIS LITIGATION FROM 1970
TO 1972 IS ILLUSTRATIVE.  THE ORDER OF JUNE 20, 1970, SUSPENDING SCHOOL
CONSTRUCTION, THE ORDER OF AUGUST 17 OF THAT YEAR PLACING AN INTERIM
PLAN IN OPERATION, AND THE ORDER OF APRIL 5, 1971, ORDERING THE THIRD
PLAN INTO EFFECT, ALL HAD BECOME FINAL WHEN THE FEE AWARD WAS MADE ON
MAY 26, 1971.  /28/  SINCE MOST SCHOOL CASES CAN BE EXPECTED TO INVOLVE
RELIEF OF AN INJUNCTIVE NATURE THAT MUST PROVE ITS EFFICACY ONLY OVER A
PERIOD OF TIME AND OFTEN WITH FREQUENT MODIFICATIONS, MANY FINAL ORDERS
MAY ISSUE IN THE COURSE OF THE LITIGATION.  TO DELAY A FEE AWARD UNTIL
THE ENTIRE LITIGATION IS CONCLUDED WOULD WORK SUBSTANTIAL HARDSHIP ON
PLAINTIFFS AND THEIR COUNSEL, AND DISCOURAGE THE INSTITUTION OF ACTIONS
DESPITE THE CLEAR CONGRESSIONAL INTENT TO THE CONTRARY EVIDENCED BY THE
PASSAGE OF 718.  A DISTRICT COURT MUST HAVE DISCRETION TO AWARD FEES
AND COSTS INCIDENT TO THE FINAL DISPOSITION OF INTERIM MATTERS.  SEE 6
J. MOORE, FEDERAL PRACTICE 54.70 (5) (1974 ED.).  FURTHER, THE
RESOLUTION OF THE FEE ISSUE MAY BE A MATTER OF SOME COMPLEXITY AND
REQUIRE, AS HERE, THE TAKING OF EVIDENCE AND BRIEFING.  IT WOULD
THEREFORE BE UNDESIRABLE TO DELAY THE IMPLEMENTATION OF A DESEGREGATION
PLAN IN ORDER TO RESOLVE THE QUESTION OF FEES SIMULTANEOUSLY.  THE
DISTRICT COURT PROPERLY CHOSE NOT TO ADDRESS ITSELF TO THE QUESTION OF
THE AWARD UNTIL AFTER IT HAD APPROVED THE NONINTERIM PLAN FOR
ACHIEVEMENT OF THE UNITARY SCHOOL SYSTEM IN RICHMOND ON APRIL 5, 1971. 

WE ARE IN AGREEMENT, HOWEVER, WITH THE DISSENTING JUDGE OF THE COURT
OF APPEALS WHEN HE OBSERVED, 472 F. 2D, AT 337, THAT THE AWARD MADE BY
THE DISTRICT COURT FOR SERVICES FROM MARCH 10, 1970, TO JANUARY 29,
1971, DID NOT PRECISELY FIT 718'S REQUIREMENT THAT THE BENEFICIARY OF
THE FEE ORDER BE "THE PREVAILING PARTY."  IN JANUARY 1971 THE
PETITIONERS HAD NOT YET "PREVAILED"  AND REALISTICALLY DID NOT DO SO
UNTIL APRIL 5.  CONSEQUENTLY, ANY FEE AWARD WAS NOT APPROPRIATELY TO BE
MADE UNTIL APRIL 5.  THEREAFTER, IT MAY INCLUDE SERVICES AT LEAST
THROUGH THAT DATE.  THIS, OF COURSE, WILL BE ATTENDED TO ON REMAND. 

ACCORDINGLY, WE HOLD THAT 718 IS APPLICABLE TO THE PRESENT
SITUATION, AND THAT IN THIS CASE THE DISTRICT COURT IN ITS DISCRETION
MAY ALLOW THE PETITIONERS A REASONABLE ATTORNEYS'  FEE FOR SERVICES
RENDERED FROM MARCH 10, 1970, TO OR BEYOND APRIL 5, 1971.  THE JUDGMENT
OF THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SEE 317 F.2D 429 (CA4 1963).  BEFORE TRIAL, ONE PUPIL-PLAINTIFF
WAS ADMITTED TO THE SCHOOL OF HIS CHOICE, AND THE COURT ORDERED
ADMISSION OF THE REMAINING 10.  THE DISTRICT COURT FOUND THAT, IN
GENERAL, DURING THE 1961 - 1962 SCHOOL YEAR, PUPIL ASSIGNMENTS IN
RICHMOND WERE BEING MADE ON THE BASIS OF DUAL ATTENDANCE ZONES; THAT
PROMOTIONS WERE CONTROLLED BY A "FEEDER" SYSTEM WHEREBY PUPILS
INITIALLY ASSIGNED TO NEGRO SCHOOLS WERE PROMOTED ROUTINELY ONLY TO
NEGRO SCHOOLS; AND THAT, IN THE HANDLING OF SOME TRANSFER REQUESTS FROM
NEGRO PUPILS, THE STUDENTS WERE REQUIRED TO MEET CRITERIA TO WHICH
WHITE STUDENTS OF THE SAME SCHOLASTIC APTITUDE WERE NOT SUBJECT.  THE
COURT DECLINED, HOWEVER, TO GRANT GENERAL INJUNCTIVE RELIEF AND ORDERED
ONLY THE ADMISSION OF THE 10 PUPILS. 

THE COURT OF APPEALS REVERSED IN PART.  IT HELD THAT NOT ONLY WERE
THE INDIVIDUAL MINOR PLAINTIFFS ENTITLED TO RELIEF, BUT THAT THEY WERE
ENTITLED TO AN INJUNCTION, ON BEHALF OF OTHERS OF THE CLASS THEY
REPRESENTED AND WHO WERE SIMILARLY SITUATED, AGAINST THE CONTINUATION
OF THE DISCRIMINATORY SYSTEM AND PRACTICES THAT WERE FOUND TO EXIST. 
ID., AT 438. 

/2/  UNDER THE APPROVED PLAN, THE BOARD UNTERTOOK STEPS "TO
ELIMINATE A DUAL SCHOOL SYSTEM IN THE ASSIGNMENT OF PUPILS" AND TO
ASSURE THAT OPPORTUNITIES WERE PROVIDED "FOR WHITE CHILDREN AND NEGRO
CHILDREN TO ASSOCIATE ON EQUAL TERMS IN THE PUBLIC SCHOOLS."  APP. 21A
22A.  GENERALLY, THE PLAN PERMITTED ANY CHILD TO ATTEND ANY SCHOOL IN
THE CITY AT HIS PROPER GRADE.  THE SPECIFIC STEPS TO BE TAKEN INCLUDED
(A) ACTION TO CORRECT INEQUALITY IN ENROLLMENT IN RELATIONSHIP TO
CAPACITY WHERE SCHOOLS IN CLOSE PROXIMITY TO EACH OTHER HAD SIGNIFICANT
ENROLLMENT DIFFERENCES, (B) EFFORTS TO ACQUAINT PUPILS IN ALL SCHOOLS
WITH OPPORTUNITIES IN OTHER SCHOOLS, AND (C) THE PLANNING AND CREATION
OF CITYWIDE CENTERS, INCLUDING WORKSHOPS, INSTITUTES, AND SEMINARS,
SERVING PUPILS FROM ALL AREAS OF THE CITY.  APP. 22A - 23A.  IN
ADDITION, THE BOARD UNDERTOOK TO INSURE THAT THE "PATTERN OF ASSIGNMENT
OF TEACHERS AND OTHER PROFESSIONAL STAFF AMONG THE VARIOUS SCHOOLS OF
THE SYSTEM WILL NOT BE SUCH THAT SCHOOLS ARE IDENTIFIABLE AS INTENDED
FOR STUDENTS OF A PARTICULAR RACE, COLOR OR NATIONAL ORIGIN, OR SUCH
THAT TEACHERS OR OTHER PROFESSIONAL STAFF OF A PARTICULAR RACE ARE
CONCENTRATED IN THOSE SCHOOLS WHERE ALL, OR THE MAJORITY, OF THE
STUDENTS ARE OF THAT RACE."  ID., AT 20A.  FINALLY, THE BOARD UNDERTOOK
TO INSURE THAT THE PROGRAM FOR CONSTRUCTION OF NEW SCHOOLS OR ADDITIONS
TO EXISTING SCHOOLS WOULD "NOT BE DESIGNED TO PERPETUATE, MAINTAIN, OR
SUPPORT RACIAL SEGREGATION."  ID., AT 23A. 

/3/  THE COURT REJECTED THE PETITIONERS' PLAN FOR UTILIZING
CONTIGUOUS ZONING AND PAIRING, SATELLITE ZONING, AND NONCONTIGUOUS
PAIRING, TOGETHER WITH THE USE OF SCHOOL AND PUBLIC TRANSPORTATION,
BECAUSE IT FELT THAT THE LACK OF IMMEDIATELY AVAILABLE TRANSPORTATION
FACILITIES WOULD PRECLUDE THE PLAN'S OPERATION FOR THE OPENING OF THE
1970 - 1971 SCHOOL YEAR.  IT NOTED THAT IT OTHERWISE FOUND THE PLAN TO
BE REASONABLE AND, IF ADOPTED, THAT IT WOULD RESULT IN A UNITARY
SYSTEM.  317 F. SUPP. 555, 572 AND 576 (ED VA. 1970).  THE COURT
SUGGESTED THAT RICHMOND COULD NOT BE DESEGREGATED WITHOUT EMPLOYMENT OF
TECHNIQUES SUGGESTED BY THE PETITIONERS AND OBSERVED, "IT WOULD SEEM TO
THE COURT HIGHLY REASONABLE TO REQUIRE THAT THE DEFENDANT SCHOOL BOARD
TAKE REASONABLY IMMEDIATE STEPS TOWARD THIS END."  ID., AT 575. 

/4/ THE INTERIM PLAN INCLUDED CONTIGUOUS AND SATELLITE ZONING,
PAIRING, AND SOME PUBLIC TRANSPORTATION, PRINCIPALLY OF THOSE PUPILS
WHO WERE INDIGENT.  THE PROBLEMS THAT CONTINUED TO CONCERN THE COURT
WERE, MOST IMPORTANTLY, THE FACT THAT UNDER THE PLAN A LARGE NUMBER OF
THE DISTRICT'S ELEMENTARY STUDENTS WOULD CONTINUE TO ATTEND SCHOOLS
THAT WOULD BE 90% OR MORE NEGRO, WHILE AT THE SAME TIME FOUR ELEMENTARY
SCHOOLS WOULD REMAIN ALL WHITE; IN ADDITION, TWO HIGH SCHOOLS AND
CERTAIN SECONDARY SCHOOLS WOULD CONTINUE TO BE RACIALLY IDENTIFIABLE. 
ID., AT 572 - 576. 

/5/  UNDER PLAN I ONLY PROXIMAL GEOGRAPHIC ZONING WAS TO BE USED IN
MAKING PUPIL ASSIGNMENTS.  THIS MEANT SIMPLY THAT A PUPIL WOULD BE
ASSIGNED TO THE SCHOOL NEAREST HIS HOME WITHOUT REGARD TO THE RESULTING
RACIAL COMPOSITION OF THAT SCHOOL.  ALTHOUGH RECOGNIZING THE
DESIRABILITY OF NEIGHBORHOOD SCHOOLS, THE COURT REJECTED THIS PLAN IN
VIEW OF THE EXISTENCE OF RICHMOND HOUSING PATTERNS PREVIOUSLY
DETERMINED TO HAVE BEEN FOSTERED BY GOVERNMENTAL ACTION.  AT THE
ELEMENTARY AND MIDDLE LEVELS, THIS WOULD HAVE RESULTED IN OVER HALF THE
STUDENTS BEING ASSIGNED TO SCHOOLS THAT WERE RACIALLY IDENTIFIABLE; AT
THE HIGH SCHOOL LEVEL ALMOST 39% OF THE DISTRICT'S WHITE PUPILS WOULD
HAVE BEEN ISOLATED IN ONE 97% WHITE SCHOOL.  325 F. SUPP. 828, 833 (ED
VA. 1971). 

PLAN II, WHICH THE BOARD MOST ACTIVELY SUPPORTED, WAS HELD
UNACCEPTABLE IN THAT IT EMBRACED A CONTINUATION OF THE 1970 - 1971
INTERIM PLAN AND DID LITTLE TO INTEGRATE THE ELEMENTARY SCHOOLS.  THE
PLAN INVOLVED THE USE OF ZONING, AS DID PLAN I, AND CONTIGUOUS PAIRING
WHEREBY SCHOOLS IN ADJOINING ZONES WOULD HAVE BEEN CONSOLIDATED.  ID.,
AT 834. 

PLAN III, WHICH THE COURT ORDERED INTO EFFECT, CALLED FOR EXTENSIVE
BUSING OF STUDENTS, PROXIMAL GEOGRAPHIC ZONING, CLUSTERS, SATELLITES,
AND FACULTY RACIAL BALANCE.  IN ADDITION, THE ELEMENTARY, MIDDLE AND
HIGH SCHOOLS WERE TO HAVE A MINORITY-MAJORITY STUDENT RATIO UNDER WHICH
EACH GROUP'S PROJECTED ENROLLMENT IN A PARTICULAR SCHOOL WAS TO BE AT
LEAST HALF OF THE GROUP'S PROJECTED CITYWIDE RATIO.  ID., AT 834 -
844. 

THE COURT ALSO REJECTED THE PETITIONERS' PLAN, FINDING THAT PLAN III
RESULTED IN "A NARROWER SPREAD" OF MINORITY-MAJORITY STUDENT RATIOS IN
THE VARIOUS SCHOOLS.  ID., 844 - 846. 

/6/  MEANWHILE, THE DISTRICT COURT (A) ON JANUARY 8, 1971, DENIED A
MOTION MADE BY SOME OF THE DEFENDANTS THAT THE JUDGE DISQUALIFY HIMSELF
BECAUSE OF PERSONAL BIAS, 324 F. SUPP. 439 (ED VA. 1971); (B) ON
JANUARY 29 DENIED THE PETITIONERS' MOTION TO ORDER IMPLEMENTATION OF
THEIR PROPOSED PLAN AND ALSO HE BOARD'S MOTION TO MODIFY THE EXISTING
INJUNCTION RESTRAINING IT FROM UNDERTAKING ANY NEW CONSTRUCTION
PLANNING, 324 F. SUPP. 456 (ED VA. 1971); AND (C) ON FEBRUARY 10 DENIED
A MOTION FOR SUMMARY JUDGMENT AS TO CERTAIN DEFENDANTS WITH RESPECT TO
COSTS, FEES, AND DAMAGES, 324 F. SUPP. 401 (ED VA. 1971).  SEE ALSO 315
F. SUPP. 325 (ED VA. 1970); 51 F.R.D. 139 (ED VA. 1970). 

/7/  PETITIONERS INITIALLY SUGGESTED $46,820 IN FEES AND $13,327.56
IN EXPENSES, A TOTAL OF $60,147.56.  APP. 94A - 95A. 

/8/  THE COURT DISCUSSED, 53 F.R.D. 28, 34 - 36 (ED VA. 1971), BUT
DID NOT RELY ON, THE "COMMON FUND" THEORY UNDER WHICH AN INDIVIDUAL
LITIGANT'S SUCCESS CONFERS A SUBSTANTIAL BENEFIT ON AN ASCERTAINABLE
CLASS AND THE EXERCISE OF THE COURT'S EQUITABLE DISCRETION TO ALLOW A
FEE RESULTS IN SPREADING THE COST THE LITIGANT HAS INCURRED AMONG THOSE
WHO HAVE BENEFITED BY HIS EFFORTS.  SEE TRUSTEES V. GREENOUGH, 105 U.S.
527 (1882); SPRAGUE V. TICONIC NATIONAL BANK, 307 U.S. 161 (1939). 

THE COURT FELT, HOWEVER, THAT THERE WERE OTHER GROUNDS ON WHICH AN
AWARD OF COUNSEL FEES COULD BE BASED.  IT REFERRED TO MILLS V. ELECTRIC
AUTO-LITE CO., 396 U.S. 375 (1970), WHERE THIS COURT RECOGNIZING THE
RULE THAT ATTORNEY'S FEES ARE NOT ORDINARILY RECOVERABLE AS COSTS,
NONETHELESS NOTED THAT EXCEPTIONS TO THIS RULE EXISTED "FOR SITUATIONS
IN WHICH OVERRIDING CONSIDERATIONS INDICATE THE NEED FOR SUCH A
RECOVERY."  ID., AT 391 - 392.  THERE THE COURT APPROVED AN AWARD OF
FEES TO SUCCESSFUL SHAREHOLDER PLAINTIFFS IN A SUIT TO SET ASIDE A
CORPORATE MERGER, ACCOMPLIHSED THROUGH THE USE OF A MISLEADING PROXY
STATEMENT, IN VIOLATION OF 14 (A) OF THE SECURITIES EXCHANGE ACT OF
1934.  15 U.S.C. 78NA).  IT WAS SAID, "THE FACT THAT THIS SUIT HAS NOT
YET PRODUCED, AND MAY NEVER PRODUCE, A MONETARY RECOVERY FROM WHICH THE
FEES COULD BE PAID DOES NOT PRECLUDE AN AWARD BASED ON THIS
RATIONALE."  396 U.S., AT 392.  SEE ALSO HALL V. COLE, 412 U.S. 1
(1973). 

/9/  SEE BREWER V. SCHOOL BOARD OF THE CITY OF NORFOLK, 456 F.2D
943, 951 - 952 (CA4), CERT. DENIED, 406 U.S. 933 (1972); NESBIT V.
STATESVILLE CITY BOARD OF EDUCATION, 418 F. 2D 1040, 1043 (CA4 1969);
WILLIAMS V. KIMBROUGH, 415 F.2D 874, 875 (CA5 1969), CERT. DENIED, 396
U.S. 1061 (1973); ROLFE V. COUNTY BOARD OF EDUCATION OF LINCOLN COUNTY,
391 F.2D 77, 81 (CA6 1968); CLARK V. BOARD OF EDUCATION OF LITTLE ROCK
SCHOOL DISTRICT, 369 F.2D 66!, 670 - 671 (CA8 1966); GRIFFIN V. COUNTY
SCHOOL BOARD OF PRINCE EDWARD COUNTY, 363 F.2D 206 (CA4), CERT. DENIED,
385 U.S. 960 (1966); BELL V. SCHOOL BOARD OF POWHATAN COUNTY, 321 F.2D
494, 500 (CA4 1963). 

/10/  THE DISTRICT COURT STATED:  "AT EACH STAGE OF THE PROCEEDINGS
THE SCHOOL BOARD'S POSITION HAS BEEN THAT, GIVEN THE CHOICE BETWEEN
DESEGREGATING THE SCHOOLS AND COMMITTING A CONTEMPT OF COURT, THEY
WOULD CHOOSE THE FIRST, BUT THAT IN ANY EVENT DESEGREGATION WOULD ONLY
COME ABOUT BY COURT ORDER. 

"IT IS NO ARGUMENT TO THE CONTRARY THAT POLITICAL REALITIES MAY
COMPEL SCHOOL ADMINISTRATORS TO INSIST ON INTEGRATION BY JUDICIAL
DECREE AND THAT THIS IS THE ORDINARY, USUAL MEANS OF ACHIEVING
COMPLIANCE WITH CONSTITUTIONAL DESEGREGATION STANDARDS.  IF SUCH
CONSIDERATIONS LEAD PARTIES TO MOUNT DEFENSES WITHOUT HOPE OF SUCCESS,
THE JUDICIAL PROCESS IS NONETHELESS IMPOSED UPON THE PLAINTIFFS ARE
CALLOUSLY PUT TO UNREASONABLE AND UNNECESSARY EXPENSE."  53 F.R.D., AT
39. 

/11/  TITLE 42 U.S.C. 2000A - 3 (B) AUTHORIZES AN ALLOWANCE OF A
REASONABLE ATTORNEY'S FEE TO A PREVAILING PARTY, OTHER THAN THE UNITED
STATES, IN AN ACTION UNDER THE PUBLIC ACCOMMODATION SUBCHAPTER OF THE
CIVIL RIGHTS ACT OF 1964.  SIMILARLY, 42 U.S.C. 2000E - 5(K) AUTHORIZES
AN ALLOWANCE OF A REASONABLE ATTORNEY'S FEE TO A PREVAILING PARTY,
OTHER THAN THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION OR THE UNITED
STATES, IN AN ACTION UNDER THE EQUAL EMPLOYMENT OPPORTUNITY SUBCHAPTER
OF THAT ACT. 

/12/  1617 ATTORNEY FEES. 

"UPON THE ENTRY OF A FINAL ORDER BY A COURT OF THE UNITED STATES
AGAINST A LOCAL EDUCATIONAL AGENCY, A STATE (OR ANY AGENCY THEREOF), OR
THE UNITED STATES (OR ANY AGENCY THEREOF), FOR FAILURE TO COMPLY WITH
ANY PROVISION OF THIS CHAPTER OR FOR DISCRIMINATION ON THE BASIS OF
RACE, COLOR, OR NATIONAL ORIGIN IN VIOLATION OF TITLE VI OF THE CIVIL
RIGHTS ACT OF 1964, OR THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES AS THEY PERTAIN TO ELEMENTARY AND SECONDARY
EDUCATION, THE COURT, IN ITS DISCRETION, UPON A FINDING THAT THE
PROCEEDINGS WERE NECESSARY TO BRING ABOUT COMPLIANCE, MAY ALLOW THE
PREVAILING PARTY, OTHER THAN THE UNITED STATES, A REASONABLE ATTORNEY'S
FEE AS PART OF THE COSTS."     /13/  THE FEE ISSUE HAD BEEN ARGUED IN
THE COURT OF APPEALS ON MARCH 7, 1972.  THE EDUCATION AMENDMENTS OF
1972 WERE APPROVED BY THE PRESIDENT ON JUNE 23.  THE ARGUMENT BEFORE
THE EN BANC COURT TOOK PLACE ON OCTOBER 2. 

/14/  BY FINAL JUDGMENT WE MEAN ONE WHERE "THE AVAILABILITY OF
APPEAL" HAS BEEN EXHAUSTED OR HAS LAPSED, AND THE TIME TO PETITION FOR
CERTIORARI HAS PASSED.  LINKLETTER V. WALKER, 381 U.S. 618, 622 N. 5
(1965).   /15/  IN CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER STATE
BANK, 308 U.S. 371, 374 (1940), THE COURT NOTED THAT THE EFFECT OF A
SUBSEQUENT RULING OF INVALIDITY ON A PRIOR FINAL JUDGMENT UNDER
COLLATERAL ATTACK IS SUBJECT TO NO FIXED "PRINCIPLE OF ABSOLUTE
RETROACTIVE VALIDITY"  BUT DEPENDS UPON CONSIDERATION OF "PARTICULAR
RELATIONS . . . AND PARTICULAR CONDUCT."  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."  IBID.  AND IN LINKLETTER IT WAS OBSERVED, "ONCE
THE PREMISE IS ACCEPTED THAT WE ARE NEITHER REQUIRED TO APPLY, NOR
PROHIBITED FROM APPLYING, A DECISION RETROSPECTIVELY, WE MUST THEN
WEIGH THE MERITS AND DEMERITS IN EACH CASE BY LOOKING TO THE PRIOR
HISTORY OF THE RULE IN QUESTION, ITS PURPOSE AND EFFECT, AND WHETHER
RETROSPECTIVE OPERATION WILL FURTHER OR RETARD ITS OPERATION."  381
U.S., AT 629. 

SEE NOTE, PROSPECTIVE OVERRULING AND RETROACTIVE APPLICATION IN THE
FEDERAL COURTS, 71 YALE L.J. 907 (1962); CURRIER, TIME AND CHANGE IN
JUDGE-MADE LAW:  PROSPECTIVE OVERRULING, 51 VA. L. REV. 201 (1965). 

/16/  SCHOONER PEGGY CONCERNED A CONDEMNATION FOLLOWING THE SEIZURE
OF A FRENCH VESSEL BY AN AMERICAN SHIP.  THE TRIAL COURT FOUND THAT THE
VESSEL WAS WITHIN FRENCH TERRITORIAL WATERS AT THE TIME OF SEIZURE AND,
HENCE, WAS NOT A LAWFUL PRIZE.  ON APPEAL, THE CIRCUIT COURT REVERSED,
HOLDING THAT THE VESSEL IN FACT WAS ON THE HIGH SEAS.  A DECREE WAS
ENTERED ACCORDINGLY.  WHILE THE CASE WAS PENDING ON APPEAL TO THIS
COURT, A CONVENTION WITH FRANCE WAS ENTERED INTO PROVIDING IN PART THAT
"PROPERTY CAPTURED, AND NOT YET DEFINITIVELY CONDEMNED, OR WHICH MAY BE
CAPTURED BEFORE THE EXCHANGE OF RATIFICATIONS . . . SHALL BE MUTUALLY
RESTORED."  1 CRANCH, AT 107.  THIS COURT REVERSED, HOLDING THAT IT
MUST APPLY THE TERMS OF THE CONVENTION DESPITE THE PROPRIETY OF THE
CIRCUIT COURT'S DECISION WHEN IT WAS RENDERED, AND THAT THE VESSEL WAS
TO BE RESTORED SINCE, BY VIRTUE OF THE PENDING APPEAL, IT HAD NOT BEEN
"DEFINITIVELY CONDEMNED," ID., AT 108. 

/17/  IN UNITED STATES V. CHAMBERS, 291 U.S. 217 (1934), THE COURT
HELD THAT PENDING PROSECUTIONS, INCLUDING THOSE ON APPEAL, BROUGHT
PURSUANT TO THE NATIONAL PROHIBITION ACT WERE TO BE DISMISSED IN VIEW
OF THE INTERIM RATIFICATION OF THE TWENTY-FIRST AMENDMENT, ABSENT
INCLUSION OF A SAVING CLAUSE.  IN CARPENTER V. WABASH R. CO., 309 U.S.
23 (1940), THE COURT, IN RELIANCE ON SCHOONER PEGGY, HELD THAT AN
AMENDMENT TO THE BANKRUPTCY ACT, EFFECTED WHILE THE CASE WAS PENDING ON
PETITION FOR WRIT OF CERTIORARI, WAS TO BE GIVEN EFFECT.  THE
AMENDMENT, HOWEVER, PROVIDED EXPLICITLY THAT IT WAS APPLICABLE TO
RAILROAD RECEIVERSHIPS THEN PENDING IN ANY UNITED STATES COURT.  IN
VANDENBARK V. OWENS-ILLINOIS GLASS CO., 311 U.S. 538 (1941), AGAIN IN
RELIANCE ON SCHOONER PEGGY, IT WAS HELD THAT A FEDERAL APPELLATE COURT,
IN DIVERSITY JURISDICTION, MUST FOLLOW A STATE SUPREME COURT DECISION
CHANGING THE APPLICABLE STATE LAW SUBSEQUENT TO THE DECISION IN THE
FEDERAL TRIAL COURT.  IN ZIFFRIN, INC. V. UNITED STATES, 318 U.S. 73
(1943), THE COURT HELD THAT AN AMENDMENT TO THE INTERSTATE COMMERCE
ACT, MADE AFTER THE HEARING UPON AN APPLICATION FOR A PERMIT TO
CONTINUE CONTRACT CARRIER OPERATIONS, WAS TO BE GIVEN EFFECT.  "A
CHANGE IN THE LAW BETWEEN A NISI PRIUS AND AN APPELLATE DECISION
REQUIRES THE APPELLATE COURT TO APPLY THE CHANGED LAW."  ID., AT 78. 
IN UNITED STATES V. ALABAMA, 362 U.S. 602 (1960), THE DISTRICT COURT
HAD DISMISSED AN ACTION UNDER THE CIVIL RIGHTS ACT OF 1967, 42 U.S.C.
1971 (C), BROUGHT BY THE UNITED STATES AGAINST THE STATE OF ALABAMA AND
OTHERS, AND DID SO WITH RESPECT TO ALABAMA ON THE GROUND THAT THE ACT
DID NOT AUTHORIZE THE ACTION AGAINST THE STATE.  WHILE THE CASE WAS
PENDING AFTER A GRANT OF CERTIORARI, THE CIVIL RIGHTS ACT OF 1960, 74
STAT. 86, WAS PASSED, EXPRESSLY AUTHORIZING AN ACTION OF THAT KIND
AGAINST A STATE.  THE COURT APPLIED THE NEW STATUTE WITHOUT DISCUSSION
OF THE LEGISLATIVE HISTORY AND REMANDED THE CASE WITH INSTRUCTIONS TO
REINSTATE THE ACTION. 

SEE ALSO FREEBORN V. SMITH, 2 WALL.  160 (1865); MOORES V. NATIONAL
BANK, 104 U.S. 625 (1882), WHERE A STATE STATUTE OF LIMITATIONS WAS
CONSTRUED BY THE STATE SUPREME COURT IN A WAY CONTRARY TO THE
CONSTRUCTION GIVEN THERETOFORE BY THE LOWER FEDERAL COURT, AND THIS
COURT FOLLOWED THE LATER CONSTRUCTION; STEPHENS V.CHEROKEE NATION, 174
U.S. 445 (1899), WHERE THE COURT UPHELD A FEDERAL STATUTE, CONTAINING
RETROSPECTIVITY LANGUAGE AND CONFERRING JURISDICTION UPON THIS COURT
OVER CASES ON REVIEW OF ACTIONS OF THE DAWES COMMISSION, ENACTED AFTER
RULINGS BELOW THAT DECREES OF THE COURTS IN THE INDIAN TERRITORIES WERE
FINAL; DINSMORE V. SOUTHERN EXPRESS CO., 183 U.S. 115 (1901), WHERE THE
COURT, RELYING UPON SCHOONER PEGGY, APPLIED A STATUTE, ENACTED WHILE
THE CASE WAS PENDING ON CERTIORARI, TO AFFIRM THE JUDGMENT OF THE LOWER
COURT; DORCHY V. KANSAS, 264 U.S. 286, 289 (1924); MISSOURI EX REL.
WABASH R. CO. V. PUBLIC SERVICE COMM'N, 273 U.S. 126 (1927); SIOUX
COUNTY V. NATIONAL SURETY CO., 276 U.S. 238, 240 (1928); PATTERSON V.
ALABAMA, 294 U.S. 600, 607 (1935). 

/18/  THE SUPREME COURT OF NORTH CAROLINA HELD THAT SINCE ALL
"CRITICAL EVENTS" HAD OCCURRED PRIOR TO THE DATE OF THE CIRCULAR, "(THE
RIGHTS OF THE PARTIES HAD MATURED AND HAD BEEN DETERMINED BEFORE THE
DIRECTIVE WAS ISSUED."  271 N.C., AT 470, 157 S.E. 2D, AT 149 

/19/  IN OUR FIRST THORPE OPINION, HOWEVER, WE DID NOTE, "WHILE THE
DIRECTIVE PROVIDES THAT CERTAIN RECORDS SHALL BE KEPT COMMENCING WITH
THE DATE OF ITS ISSUANCE, THERE IS NO SUGGESTION THAT THE BASIC
PROCEDURE IT PRESCRIBES IS NOT TO BE FOLLOWED IN ALL EVICTION
PROCEEDINGS THAT HAVE NOT BECOME FINAL."  THORPE V. HOUSING AUTHORITY
OF THE CITY OF DURHAM, 386 U.S. 670, 673 (1967). 

/20/  THE FOURTH CIRCUIT HAS DECLINED TO APPLY 718 TO SERVICES
RENDERED PRIOR TO ITS ENACTMENT ON THE GROUND THAT "LEGISLATION IS NOT
TO BE GIVEN RETROSPECTIVE EFFECT TO PRIOR EVENTS UNLESS CONGRESS HAS
CLEARLY INDICATED AN INTENTION TO HAVE THE STATUTE APPLIED IN THAT
MANNER."  THOMPSON V. SCHOOL BOARD OF THE CITY OF NEWPORT NEWS, 472 F.
2D 177, 178 (1972).  THE FIFTH CIRCUIT HAS DONE THE SAME.  JOHNSON V.
COMBS, 471 F.2D 84, 86 (1972); HENRY V. CLARKSDALE MUNICIPAL SEPARATE
SCHOOL DIST., 480 F.2D 583, 585 (1973). 

/21/  WHERE CONGRESS HAS EXPRESSLY PROVIDED, OR THE LEGISLATIVE
HISTORY HAD INDICATED, THAT LEGISLATION WAS TO BE GIVEN ONLY
PROSPECTIVE EFFECT, THE COURTS, IN THE ABSENCE OF ANY ATTENDANT
CONSTITUTIONAL PROBLEM, GENERALLY HAVE FOLLOWED THAT LEAD.  SEE, FOR
EXAMPLE, GOLDSTEIN V. CALIFORNIA, 412 U.S. 546, 551 - 552 (1973);
UNITED STATES V. THOMPSON, 356 F.2D 216, 227 N. 12 (CA2 1965), CERT.
DENIED, 384 U.S. 964 (1966). 

/22/  IN JOHNSON V. COMBS, THE FIFTH CIRCUIT CHARACTERIZED THE
LEGISLATIVE HISTORY OF 718 AS "INCONCLUSIVE," 471 F.2D, AT 87.  IN
THOMPSON V. SCHOOL BOARD OF THE CITY OF NEWPORT NEWS, THE FOURTH
CIRCUIT REJECTED THE VIEW THAT THE LEGISLATIVE HISTORY COULD BE READ TO
SUPPORT THE APPLICABILITY OF 718 TO SERVICES RENDERED PRIOR TO ITS
EFFECTIVE DATE, BUT DID NOT FIND ANY EXPLICITLY STATED LEGISLATIVE
INTENT TO THE CONTRARY.  472 F.2D, AT 178. 

/23/  THE LEGISLATION THAT ULTIMATELY RESULTED IN THE PASSAGE OF 718
GREW OUT OF A BILL THAT WOULD HAVE PROVIDED FOR THE ESTABLISHMENT OF A
$15 MILLION FEDERAL FUND FROM WHICH SUCCESSFUL LITIGANTS IN SCHOOL
DISCRIMINATION CASES WOULD BE PAID A REASONABLE FEE "FOR SERVICES
RENDERED, AND COSTS INCURRED, AFTER THE DATE OF ENACTMENT OF THIS ACT"
(EMPHASIS SUPPLIED).  S. 683, 11 (A), 92D CONG., 1ST SESS. (1971).  THE
BILL WAS REPORTED OUT OF THE SENATE COMMITTEE ON LABOR AND PUBLIC
WELFARE AS S. 1557, WITH THE RELEVANT CLAUSE INTACT IN 11.  SEE S. REP.
NO. 92 - 61, PP. 55 - 56 (1971).  THE SECTION, HOWEVER, WAS STRICKEN IN
THE SENATE 117 CONG. REC. 11338 - 11345 (1971), AND THE PRESENT
LANGUAGE OF 718 TOOK ITS PLACE.  ID., AT 11521 - 11529 AND 11724 -
11726.  THE HOUSE, AMONG OTHER AMENDMENTS, DELETED ALL MENTION OF
COUNSEL FEES.  IN CONFERENCE, THE FEE PROVISION WAS RESTORED.  S. REP.
NO. 92 - 798, P. 143 (1972). 

THUS, WHILE THERE IS NO EXPLICIT STATEMENT THAT 718 MAY BE APPLIED
TO SERVICES RENDERED PRIOR TO ENACTMENT, WE ARE RELUCTANT SPECIFICALLY
TO READ INTO THE STATUTE THE VERY FEE LIMITATION THAT CONGRESS
ELIMINATED. 

/24/  IN GREENE, THE COURT HELD THAT A CLAIMANT'S RIGHT TO RECOVER
LOST EARNINGS HAD BECOME FINAL AS A RESULT OF THE PRIOR DECISION THAT
THE CLAIMANT HAD BEEN WRONGFULLY DISCHARGED, GREENE V. MCELROY, 360
U.S. 474 (1959), AND OF THE DISTRICT COURT'S ORDER ON REMAND. 
ACCORDINGLY, THE COURT RULED THAT HIS RIGHTS HAD MATURED UNDER AN
EARLIER DEPARTMENT OF DEFENSE REGULATION, AND DECLINED TO GIVE
RETROACTIVE EFFECT TO A NEW REGULATION THAT TOOK EFFECT WHILE THE CLAIM
WAS BEING PROCESSED.  THE INEQUITY OF A CONTRARY HOLDING WAS STRESSED
BY THE COURT: 

"IN A CASE SUCH AS THE PRESENT, WHERE THE GOVERNMENT HAS ACTED
WITHOUT AUTHORITY IN CAUSING THE DISCHARGE OF AN EMPLOYEE WITHOUT
PROVIDING ADEQUATE PROCEDURAL SAFEGUARDS, WE SHOULD BE RELUCTANT TO
CONCLUDE THAT A REGULATION, NOT EXPLICITLY SO REQUIRING, CONDITIONS
RESTITUTION ON A RETROSPECTIVE DETERMINATION OF THE VALIDITY OF THE
SUBSTANTIVE REASONS FOR THE GOVERNMENT ACTION--REASONS WHICH THE
EMPLOYEE WAS NOT AFFORDED AN ADEQUATE OPPORTUNITY TO MEET OR REBUT AT
THE TIME OF HIS DISCHARGE."  376 U.S., AT 162.  AS NOTED, THE COURT, IN
THORPE V. HOUSING AUTHORITY OF THE CITY OF DURHAM, 393 U.S. 268 (1969),
CHARACTERIZED GREENE AS AN EXCEPTION TO THE GENERAL RULE OF SCHOONER
PEGGY, "MADE TO PREVENT MANIFEST INJUSTICE."  ID., AT 282, AND N. 43. 

/25/  (FROM THE BEGINNING THE RESOURCES OF OPPOSING PARTIES HAVE
BEEN DISPROPORTIONATE.  RANGED AGAINST THE PLAINTIFFS HAVE BEEN THE
LEGAL STAFF OF THE CITY ATTORNEY'S OFFICE AND RETAINED COUNSEL HIGHLY
EXPERIENCED IN TRIAL WORK.  . . . FEW LITIGANTS--EVEN THE WEALTHIEST-
COME INTO COURT WITH RESOURCES AT ONCE SO FORMIDABLE AND SO SUITED TO
THE LITIGATION TASK AT HAND.  . . . 

"MOREOVER, THIS SORT OF CASE IS AN ENTERPRISE ON WHICH ANY PRIVATE
INDIVIDUAL SHOULD SHUDDER TO EMBARK.  . . . TO SECURE COUNSEL WILLING
TO UNDERTAKE THE JOB OF TRIAL . . . NECESSARILY MEANS THAT SOMEONE-
PLAINTIFF OR LAWYER--MUST MAKE A GREAT SACRIFICE UNLESS EQUITY
INTERVENES."  53 F.R.D., AT 40. 

/26/  SEE DEPT. OF HEALTH, EDUCATION, AND WELFARE, J. COLEMAN ET
AL., EQUALITY OF EDUCATIONAL OPPORTUNITY (!966); UNITED STATES
COMMISSION ON CIVIL RIGHTS, RACIAL ISOLATION IN THE PUBLIC SCHOOLS
(1967).  SEE ALSO TRAFFICANTE V. METROPOLITAN LIFE INSURANCE CO., 409
U.S. 205 (1972). 

/27/  IT IS PARTICULARLY IN THE AREA OF DESEGREGATION THAT THIS
COURT IN NEWMAN AND IN NORTHCROSS RECOGNIZED THAT, BY THEIR SUIT,
PLAINTIFFS VINDICATED A NATIONAL POLICY OF HIGH PRIORITY.  OTHER COURTS
HAVE GIVEN EXPLICIT AND IMPLICIT RECOGNITION TO THE PRIORITY PLACED ON
DESEGREGATION LITIGATION BY THE CONGRESS.  SEE KNIGHT V. AUCIELLO, 453
F.2D 852, 853 (CA1 1972) AND LEE V. SOUTHERN HOME SITES CORP., 444 F.2D
143, 145 (CA5 1971) (HOUSING); JOHNSON V. COMBS, 471 F.2D, AT 86
(SCHOOLS); MILLER V. AMUSEMENT ENTERPRISES, INC., 426 F. 2D 534, 537 -/
538 (CA5 1970) (PUBLIC ACCOMMODATION); COOPER V. ALLEN, 467 F.2D 836,
841 (CA5 1972) (EMPLOYMENT). 

/28/  SINCE THE FINALITY OF THESE ORDERS IS NOT CONTESTED, WE ARE
NOT CALLED UPON TO CONSTRUE THE FINALITY LANGUAGE AS IT APPEARS IN
718.  THE ONLY COURT THAT HAS DEALT WITH THE ISSUE UNDER THIS STATUTE
HAS HELD THAT THE MOST SUITABLE TEST FOR DETERMINING FINALITY IS
APPEALABILITY UNDER 28 U.S.C. 1291.  SEE JOHNSON V. COMBS, 471 F.2D, AT
87. 

THIS COURT HAS BEEN INCLINED TO FOLLOW A "PRAGMATIC APPROACH" TO THE
QUESTION OF FINALITY.  BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294,
306 (1962).  AND WE HAVE SAID THAT A FINAL DECISION, WITHIN THE MEANING
OF 1291, "DOES NOT NECESSARILY MEAN THE LAST ORDER POSSIBLE TO BE MADE
IN A CASE."  GILLESPIE V. UNITED STATES STEEL CORP., 379 U.S. 148, 152
(1964); SEE COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541, 545 (1949). 

WITHOUT WISHING AFFIRMATIVELY TO CONSTRUE THE STATUTE IN DETAIL IN
THE ABSENCE OF CONSIDERATION OF THE ISSUE BY THE LOWER COURTS, WE
VENTURE TO SAY ONLY THAT THE ENTRY OF ANY ORDER THAT DETERMINES
SUBSTANTIAL RIGHTS OF THE PARTIES MAY BE AN APPROPRIATE OCCASION UPON
WHICH TO CONSIDER THE PROPRIETY OF AN AWARD OF COUNSEL FEES IN SCHOOL
DESEGREGATION CASES.  SEE C. WRIGHT, FEDERAL COURTS 101 (2D ED. 1970). 

MR. JUSTICE MARSHALL AND MR. JUSTICE POWELL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

WILLIAM T. COLEMAN, JR., ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEFS WERE JACK GREENBERG, JAMES M. NABRIT III, NORMAN J.
CHACHKIN, CHARLES STEPHEN RALSTON, ERIC SCHNAPPER, AND LOUIS R. LUCAS. 

GEORGE B. LITTLE ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE JAMES K. CLUVERIUS AND CONARD B. MATTOX, JR.  /1/     /1/
BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR GENERAL
BORK, ASSISTANT ATTORNEY GENERAL POTTINGER, DEPUTY SOLICITOR GENERAL
WALLACE, AND GERALD P. NORTON FOR THE UNITED STATES, AND BY DAVID S.
TATEL AND ARMAND DERFNER FOR THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS
UNDER LAW. 
..END :








BOB JONES UNIVERSITY V. SIMON, 416 U.S. 725 


       BOB JONES UNIVERSITY V. SIMON, SECRETARY OF THE TREASURY, ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 72 - 1470.  ARGUED JANUARY 7, 1974--DECIDED MAY 15,

           1974; (472 F. 2D 903 AND 476 F.2D 259, AFFIRMED.) 


    PETITIONER, A PRIVATE UNIVERSITY, WAS NOTIFIED BY THE INTERNAL

  REVENUE SERVICE (IRS), PURSUANT TO A NEWLY ANNOUNCED POLICY OF

  DENYING TAX-EXEMPT STATUS FOR PRIVATE SCHOOLS WITH RACIALLY

  DISCRIMINATORY ADMISSIONS POLICIES, THAT IT WAS GOING TO REVOKE A

  RULING LETTER DECLARING THAT PETITIONER QUALIFIED FOR TAX-EXEMPT

  STATUS UNDER 501 (C) (3) OF THE INTERNAL REVENUE CODE OF 1954

  (CODE).  PETITIONER SUED FOR INJUNCTIVE RELIEF TO PREVENT

  REVOCATION, ALLEGING IRREPARABLE INJURY IN THE FORM OF INCOME TAX

LIABILITY AND LOSS OF CONTRIBUTIONS AND CLAIMING THAT THE

REVOCATION WOULD VIOLATE PETITIONER'S RIGHTS TO FREE EXERCISE OF

  RELIGION, TO FREE ASSOCIATION, AND TO DUE PROCESS AND EQUAL

  PROTECTION OF THE LAWS.  THE DISTRICT COURT GRANTED RELIEF

  DESPITE 7421 (A) OF THE CODE, WHICH PROVIDES THAT "NO SUIT FOR

  THE PURPOSE OF RESTRAINING THE ASSISSMENT OR COLLECTION OF ANY

  TAX SHALL BE MAINTAINED IN ANY COURT."  THE COURT OF APPEALS

  REVERSED, HOLDING THAT 7421(A), AS CONSTRUED IN ENOCHS V.

  WILLIAMS PACKING & NAVIGATION CO., 370 U.S. 1, FORECLOSED

  RELIEF.  UNDER THAT DECISION A PRE-ENFORCEMENT INJUNCTION AGAINST

  TAX ASSESSMENT OR COLLECTION MAY BE GRANTED ONLY IF (1) "IT IS

  CLEAR THAT UNDER NO CIRCUMSTANCES COULD THE GOVERNMENT ULTIMATELY

  PREVAIL . . . ."  AND (2) "IF EQUITY JURISDICTION OTHERWISE

  EXISTS."  HELD: 

     1.  THE SUIT IS ONE "FOR THE PURPOSE OF RESTRAINING THE

  ASSESSMENT OR COLLECTION OF ANY TAX" WITHIN THE MEANING OF

  7421(A).  PP. 738 - 742. 

     (A) PETITIONER'S ALLEGATION THAT REVOCATION OF THE RULING

  LETTER WOULD SUBJECT IT TO "SUBSTANTIAL" INCOME TAX LIABILITY

  DEMONSTRATES THAT A PRIMARY PURPOSE OF THE SUIT IS TO PREVENT THE

  IRS FROM ASSESSING AND COLLECTING INCOME TAXES; BUT EVEN IF NO

  INCOME TAX LIABILITY RESULTED, THE SUIT WOULD STILL BE ONE TO

  RESTRAIN THE ASSESSMENT AND COLLECTION OF FEDERAL SOCIAL SECURITY

  AND UNEMPLOYMENT TAXES, AS WELL AS TO RESTRIAN THE COLLECTION OF

TAXES FROM PETITIONER'S DONORS.  PP. 738 - 739. 

     (B) PETITIONER HAS NOT SHOWN THAT THE CONTEMPLATED REVOCATION

OF ITS RULING LETTER IS NOT BASED ON THE IRS' GOOD-FAITH EFFORT

  TO ENFORCE THE TECHNICAL REQUIREMENTS OF THE CODE.  ##HC726 PP.

  739 - 741. 

     2.  PETITIONER'S CONTENTION THAT 7421 (A) IS SUBJECT TO

  JUDICIALLY CREATED EXCEPTIONS OTHER THAN THE WILLIAMS PACKING

  TEST IS WITHOUT MERIT.  THAT DECISION CONSTITUTES AN

  ALL-ENCOMPASSING READING OF 7421 (A), AND IT REJECTED THE

  CONTENTION, RELIED UPON BY PETITIONER, THAT IRREPARABLE INJURY

  ALONE IS SUFFICIENT TO LIFT THE STATUTORY BAR.  PP. 742 - 746. 

3.  DENYING INJUNCTIVE RELIEF TO PETITIONER UNDER THE STANDARDS

  OF WILLIAMS PACKING, SUPRA, WILL NOT, BECAUSE OF ALLEGED

  IRREPARABLE INJURY PENDING RESORT TO ALTERNATIVE REMEDIES, DENY

  PETITIONER DUE PROCESS OF LAW, SINCE THIS IS NOT A CASE WHERE AN

  AGGRIEVED PARTY HAS NO ACCESS AT ALL TO JUDICIAL REVIEW.  THE

  REVIEW PROCEDURES THAT ARE AVAILABLE ARE CONSTITUTIONALLY

  ADEQUATE, EVEN THOUGH INVOLVING SERIOUS DELAY.  PP. 746 - 748. 

     4.  PETITIONER HAS NOT MET THE STANDARDS OF WILLIAMS PACKING,

  SUPRA, SINCE ITS CONTENTIONS ARE SUFFICIENTLY DEBATABLE TO

  FORECLOSE ANY NOTION THAT "UNDER NO CIRCUMSTANCES COULD THE

  GOVERNMENT ULTIMATELY PREVAIL."  PP. 748 - 750. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, AND

  REHNQUIST, JJ., JOINED.  BLACKMUN, J., FILED AN OPINION

  CONCURRING IN THE RESULT, POST, P. 750.  DOUGLAS, J., TOOK NO

  PART IN THE DECISION OF THE CASE. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE AND ALEXANDER V. "AMERICAN UNITED" INC., POST, P. 752,
INVOLVE THE APPLICATION OF THE ANTI-INJUNCTION ACT, 7421 (A) OF THE
INTERNAL REVENUE CODE OF 1954 (THE CODE), 26 U.S.C. 7421 (A), TO THE
RULING LETTER PROGRAM OF THE INTERNAL REVENUE SERVICE (THE SERVICE) FOR
ORGANIZATIONS CLAIMING TAX-EXEMPT STATUS UNDER CODE 501 (C) (3), 26
U.S.C. 501(C)(3).  THE QUESTION PRESENTED IS WHETHER, PRIOR TO THE
ASSESSMENT AND COLLECTION OF ANY TAX, A COURT MAY ENJOIN THE SERVICE
FROM REVOKING A RULING LETTER DECLARING THAT PETITIONER QUALIFIES FOR
TAX-EXEMPT STATUS AND FROM WITHDRAWING ADVANCE ASSURANCE TO DONORS THAT
CONTRIBUTIONS TO PETITIONER WILL CONSTITUTE CHARITABLE DEDUCTIONS UNDER
CODE 170 (C)(2), 26 U.S.C. 170 (C)(2).  WE HOLD THAT IT MAY NOT. 

        I 

ORGANIZATIONS DESCRIBED IN 501(C)(3).  THE LATTER PROVISION
ENCOMPASSES: 

     "CORPORATIONS, AND ANY COMMUNITY CHEST, FUND, OR FOUNDATION,

  ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE,

  SCIENTIFIC, TESTING FOR PUBLIC SAFETY, LITERARY, OR EDUCATIONAL

  PURPOSES, OR FOR THE PREVENTION OF CRUELTY TO CHILDREN OR

ANIMALS, NO PART OF THE NET EARNINGS OF WHICH INURES TO THE

 BENEFIT OF ANY PRIVATE SHAREHOLDER OR INDIVIDUAL, NO SUBSTANTIAL

  PART OF THE ACTIVITIES OF WHICH IS CARRYING ON PROPAGANDA, OR

  OTHERWISE ATTEMPTING, TO INFLUENCE LEGISLATION, AND WHICH DOES

  NOT PARTICIPATE IN, OR INTERVENE IN (INCLUDING THE PUBLISHING OR

  DISTRIBUTING OF STATEMENTS), ANY POLITICAL CAMPAIGN ON BEHALF OF

  ANY CANDIDATE FOR PUBLIC OFFICE." 

SECURITY (FICA) TAXES BY VIRTUE OF CODE 3121 (B) (8) (B), 26 U.S.C.
3121 (B) (8) (B), AND FROM FEDERAL UNEMPLOYMENT (FUTA) TAXES BY VIRTUE
OF 330L (C)(8), 36 U.S.C. 3306 (C)(8).  DONATIONS TO 501 (C)(3)
ORGANIZATIONS ARE TAX DEDUCTIBLE UNDER 170 (C)(2).  /1/ 

AS A PRACTICAL MATTER, AN ORGANIZATION HOPING TO SOLICIT TAX
DEDUCTIBLE CONTRIBUTIONS MAY NOT RELY SOLELY ON TECHNICAL COMPLIANCE
WITH THE LANGUAGE OF 501 (C)(3) AND 170 (C)[(2).  THE ORGANIZATION MUST
ALSO OBTAIN A RULING LETTER FROM THE SERVICE, PURSUANT TO REV. PROCS. 
72 - 3 AND 72 - 4, 1972 - 1 CUM. BULL.  698, 706, DECLARING THAT IT
QUALIFIES UNDER 501 (C)(3).  RECEIPT OF SUCH A RULING LETTER LEADS, IN
THE ORDINARY CASE, TO INCLUSION IN THE SERVICE'S PERIODICALLY UPDATED
PUBLICATION NO. 78, "CUMULATIVE LIST OF ORGANIZATIONS DESCRIBED IN
LIST).  IN ESSENCE, THE CUMULATIVE LIST IS THE SERVICE'S OFFICIAL
ROSTER OF TAX-EXEMPT ORGANIZATIONS:  "THE LISTING OF AN ORGANIZATION IN
(THE CUMULATIVE LIST) SIGNIFIES IT HAS RECEIVED A RULING OR
DETERMINATION LETTER . . . STATING THAT CONTRIBUTIONS BY DONORS TO THE
ORGANIZATION ARE DEDUCTIBLE AS PROVIDED IN SECTION 170 OF THE CODE." 
REV. PROC. 72 - 39, 1972 - 2 CUM. BULL.  818.  AN ORGANIZATIONS'S
INCLUSION IN THE CUMULATIVE LIST ASSURES POTENTIAL DONORS IN ADVANCE
THAT CONTRIBUTIONS TO THE ORGANIZATION WILL QUALIFY AS CHARITABLE
DEDUCTIONS UNDER 170 (C)(2).  THE SERVICE HAS ANNOUNCED THAT, WITH
NARROWLY LIMITED EXCEPTIONS, A DONOR MAY RELY ON THE CUMULATIVE LIST
FOR SO LONG AS THE BENEFICIARIES OF HIS LARGESSE MAINTAIN THEIR
LISTING, REGARDLESS OF THEIR ACTUAL TAX STATUS.  /2/ FOR THIS REASON,
APPEARANCE ON THE CUMULATIVE LIST IS A PREREQUISITE TO SUCCESSFUL FUND
RAISING FOR MOST CHARITABLE ORGANIZATIONS.  MANY CONTRIBUTORS SIMPLY
WILL NOT MAKE DONATIONS TO AN ORGANIZATION THAT DOES NOT APPEAR ON THE
CUMULATIVE LIST.  /3/ 

BECAUSE OF THE IMPORTANCE OF INCLUSION IN THE CUMULATIVE LIST,
REVOCATION OF A 501 (C) (3) RULING LETTER AND CONSEQUENT REMOVAL FROM
THE CUMULATIVE LIST IS LIKELY TO RESULT IN SERIOUS DAMAGE TO A
CHARITABLE ORGANIZATION.  /4/  REVOCATION NOT ONLY THREATENS THE FLOW
OF CONTRIBUTIONS, IT ALSO SUBJECTS THE AFFECTED ORGANIZATION TO FICA
AND FUTA TAXES AND, ASSUMING THAT THE ORGANIZATION HAS TAXABLE INCOME
AND DOES NOT QUALIFY AS TAX EXEMPT UNDER ANOTHER SUBSECTION OF 501, TO
FEDERAL INCOME TAXES.  /5/  UPON THE ASSESSMENT AND ATTEMPTED
COLLECTION OF INCOME TAXES, THE ORGANIZATION MAY LITIGATE THE LEGALITY
OF THE SERVICE'S ACTION BY PETITIONING THE TAX COURT TO REVIEW A NOTICE
OF DEFICIENCY.  SEE CODE 6212 AND 6213, 26 U.S.C. 6212 AND 6213.  OR,
FOLLOWING THE COLLECTION OF ANY FEDRAL TAX AND THE DENIAL OF A REFUND
BY THE SERVICE, THE ORGANIZATION MAY BRING A REFUND SUIT IN A FEDERAL
DISTRICT COURT OR IN THE COURT OF CLAIMS.  SEE CODE 7422, 26 U.S.C.
7422; 28 U.S.C. 1346 (A) (1) AND 1491.  FINALLY, A DONOR TO THE
ORGANIZATION MAY BRING A REFUND SUIT TO CHALLENGE THE DENIAL OF A
CHARITABLE DEDUCTION UNDER 170 (C) (2).  PRESUMABLY SUCH A "FRIENDLY
DONOR" WOULD BE ABLE TO ATTACK THE LEGALITY OF THE SERVICE'S REVOCATION
OF AN ORGANIZATION'S 501 (C) (3) STATUS.  BUT THESE POST-REVOCATION
AVENUES OF REVIEW TAKE SUBSTANTIAL TIME, DURING WHICH THE ORGANIZATION
IS CERTAIN TO LOSE CONTRIBUTIONS FROM THOSE DONORS WHOSE GIFTS ARE
CONTINGENT ON ENTITLEMENT TO CHARITABLE DEDUCTIONS UNDER 170 (C)(2). 
ACCORDINGLY, ANY ORGANIZATION THREATENED WITH REVOCATION OF A 501 (C)
(3) RULING LETTER HAS A POWERFUL INCENTIVE TO BRING A PRE-ENFORCEMENT
SUIT TO PREVENT THE SERVICE FROM TAKING ACTION IN THE FIRST INSTANCE. 

THE PRESSURES OPERATING ON ORGANIZATIONS FACING REVOCATION OF 501
(C) (3) STATUS TO SEEK INJUNCTIVE RELIEF AGAINST THE SERVICE PENDING
JUDICIAL REVIEW OF THE PROPOSED ACTION CONFLICT DIRECTLY WITH A
CONGRESSIONAL PROHIBITION OF SUCH PRE-ENFORCEMENT TAX SUITS.  IN FORCE
CONTINUOUSLY SINCE ITS ENACTMENT IN 1867, THE ANTI-INJUNCTION ACT, NOW
CODE 7421 (A), PROVIDES IN PERTINENT PART THAT "NO SUIT FOR THE PURPOSE
OF RESTRAINING THE ASSESSMENT OR COLLECTION OF ANY TAX SHALL BE
MAINTAINED IN ANY COURT . . . ."  /6/  BECAUSE AN INJUNCTION PREVENTING
THE SERVICE FROM WITHDRAWING A 501 (C)(3) RULING LETTER WOULD
NECESSARILY PRECLUDE THE COLLECTION OF FICA, FUTA, AND POSSIBLY INCOME
TAXES FROM THE AFFECTED ORGANIZATION, AS WELL AS THE DENIAL OF 170
(C)(2) CHARITABLE DEDUCTIONS TO DONORS TO THE ORGANIZATION, A SUIT
SEEKING SUCH RELIEF FALLS SQUARELY WITHIN THE LITERAL SCOPE OF THE
ACT.  /7/ 

THE CLASH BETWEEN THE LANGUAGE OF THE ANTI-INJUNCTION ACT AND THE
DESIRE OF 501 (C)(3) ORGANIZATIONS TO BLOCK THE SERVICE FROM
WITHDRAWING A RULING LETTER HAS BEEN RESOLVED AGAINST THE ORGANIZATIONS
IN MOST CASES.  E.G., CRENSHAW COUNTY PRIVATE SCHOOL FOUNDATION V.
CONNALLY, 474 F.2D 1185 (CA5 1973), PET. FOR CERT. PENDING IN NO. 73 -
170; NATIONAL COUNCIL ON THE FACTS OF OVERPOPULATION V. CAPLIN, 224 F.
SUPP. 313 (DC 1963); ISRAELITE HOUSE OF DAVID V. HOLDEN, 14 F.2D 701
(WD MICH. 1926).  /8/  BUT SEE, MCGLOTTEN V. CONNALLY, 338 F. SUPP. 448
(DC 1972) (THREE-JUDGE COURT).  CF. GREEN V. CONNALLY, 330 F. SUPP.
1150 (DC), AFF-D PER CURIAM SUB NOM. COIT V. GREEN, 404 U.S. 997
(1971). 

IN THE PRESENT CASE, THE COURT OF APPEALS FOR THE FOURTH CIRCUIT
FOLLOWED THE MAJORITY VIEW.  BOB JONES UNIVERSITY V. CONNALLY, 472 F.2D
903, PETITION FOR REHEARING DENIED, 476 F.2D 259 (1973).  IN LIGHT OF
THE CONTRARY RESULT REACHED BY THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT IN "AMERICANS UNITED" INC. V. WALTERS, 155 U.S. APP.
D.C. 284, 477 F.2D 1169 (1973), REV'D SUB NOM. ALEXANDER V. "AMERICANS
UNITED" INC., POST, P. 752, WE GRANTED BOB JONES UNIVERSITY'S PETITION
FOR CERTIORARI.  414 U.S. 817 (1973). 

        II 

PETITIONER REFERS TO ITSELF AS "THE WORLD'S MOST UNUSUAL
UNIVERSITY."  FOUNDED IN 1927 AND NOW LOCATED IN GREENVILLE, SOUTH
CAROLINA, THE UNIVERSITY IS DEVOTED TO THE TEACHING AND PROPAGATION OF
ITS FUNDAMENTALIST RELIGIOUS BELIEFS.  ALL CLASSES COMMENCE AND CLOSE
WITH PRAYER, AND COURSES IN RELIGION ARE COMPULSORY.  STUDENTS AND
FACULTY ARE SCREENED FOR ADHERENCE TO CERTAIN RELIGIOUS PRECEPTS AND
MAY BE EXPELLED OR DISMISSED FOR LACK OF ALLEGIANCE TO THEM.  ONE OF
THESE BELIEFS IS THAT GOD INTENDED SEGREGATION OF THE RACES AND THAT
THE SCRIPTURES FORBID INTERRACIAL MARRIAGE.  ACCORDINGLY, PETITIONER
REFUSES TO ADMIT NEGROES AS STUDENTS.  ON PAIN OF EXPULSION STUDENTS
ARE PROHIBITED FROM INTERRACIAL DATING, AND PETITIONER BELIEVES THAT IT
WOULD BE IMPOSSIBLE TO ENFORCE THIS PROHIBITION ABSENT THE EXCLUSION OF
NEGROES. 

IN 1942, THE SERVICE ISSUED PETITIONER A RULING LETTER UNDER 101 (6)
OF THE INTERNAL REVENUE CODE OF 1939, THE PREDECESSOR OF 501 (C) (3). 
IN 1970, HOWEVER, THE SERVICE ANNOUNCED THAT IT WOULD NO LONGER ALLOW
501 (C)(3) STATUS FOR PRIVATE SCHOOLS MAINTAINING RACIALLY
DISCRIMINATORY ADMISSIONS POLICIES AND THAT IT WOULD NO LONGER TREAT
CONTRIBUTIONS TO SUCH SCHOOLS AS TAX DEDUCTIBLE.  SEE REV. RUL. 71 -
447, 1971 / 2 CUM. BULL.  230.  THE SERVICE REQUESTED PROOF OF A
NONDISCRIMINATORY ADMISSIONS POLICY FROM ALL SUCH SCHOOLS AND WARNED
THAT TAX-EXEMPT RULING LETTERS WOULD BE REVIEWED IN LIGHT OF THE
INFORMATION PROVIDED.  AT THE END OF 1970, PETITIONER ADVISED THE
SERVICE THAT IT DID NOT ADMIT NEGROES, AND IN SEPTEMBER 1971, FURTHER
STATED THAT IT HAD NO INTENTION OF ALTERING THIS POLICY.  THE
COMMISSIONER OF INTERNAL REVENUE THEREFORE INSTRUCTED THE DISTRICT
DIRECTOR TO COMMENCE ADMINISTRATIVE PROCEDURES LEADING TO THE
REVOCATION OF PETITIONER'S 501 (C)(3) RULING LETTER. 

PETITIONER BROUGHT THESE ADMINISTRATIVE PROCEEDINGS TO A HALT BY
FILING SUIT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
SOUTH CAROLINA FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
PREVENTING THE SERVICE FROM REVOKING OR THREATENING TO REVOKE
PETITIONER'S TAX-EXEMPT STATUS.  PETITIONER ALLEGED IRREPARABLE INJURY
IN THE FORM OF SUBSTANTIAL FEDERAL INCOME TAX LIABILITY AND THE LOSS OF
CONTRIBUTIONS.  PETITIONER ASSERTED THAT THE SERVICE'S THREATENED
ACTION WAS OUTSIDE ITS LAWFUL AUTHORITY AND WOULD VIOLATE PETITIONER'S
RIGHTS TO THE FREE EXERCISE OF RELIGION, TO FREE ASSOCIATION, AND TO
DUE PROCESS AND EQUAL PROTECTION OF THE LAWS. 

THE DISTRICT COURT REJECTED A MOTION TO DISMISS FOR LACK OF
JURISDICTION, AND IT PRELIMINARILY ENJOINED THE SERVICE FROM REVOKING
OR THREATENING TO REVOKE PETITIONER'S TAX-EXEMPT STATUS AND FROM
WITHDRAWING ADVANCE ASSURANCE OF THE DEDUCTIBILITY OF CONTRIBUTIONS
MADE TO PETITIONER.  BOB JONES UNIVERSITY V. CONNALLY, 341 F. SUPP. 277
(SC 1971).  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT REVERSED, WITH
ONE JUDGE DISSENTING.  472 F.2D 903, REH. DEN., 476 F.2D 259 (1973). 
THAT COURT HELD THAT PETITIONER'S SUIT WAS BARRED BY THE ANTI
INJUNCTION ACT AS INTERPRETED BY THIS COURT IN ENOCHS V. WILLIAMS
PACKING & NAVIGATION CO., 370 U.S. 1.  (1962). 

        III 

THE ANTI-INJUNCTION ACT APPARENTLY HAS NO RECORDED LEGISLATIVE
HISTORY, /9/  BUT ITS LANGUAGE COULD SCARCELY BE MORE EXPLICIT--"NO
SUIT FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR COLLECTION OF ANY
TAX SHALL BE MAINTAINED IN ANY COURT . . . ."  THE COURT HAS
INTERPRETED THE PRINCIPAL PURPOSE OF THIS LANGUAGE TO BE THE PROTECTION
OF THE GOVERNMENT'S NEED TO ASSESS AND COLLECT TAXES AS EXPEDITIOUSLY
AS POSSIBLE WITH A MINIMUM OF PRE-ENFORCEMENT JUDICIAL INTERFERENCE,
"AND TO REQUIRE THAT THE LEGAL RIGHT TO THE DISPUTED SUMS BE DETERMINED
IN A SUIT FOR REFUND."  ENOCHS V. WILLIAMS PACKING & NAVIGATION CO.,
SUPRA, AT 7.  SEE ALSO, E.G., STATE RAILROAD TAX CASES, 92 U.S. 575,
613 - 614 (1876).  CF. CHEATHAM V. UNITED STATES, 92 U.S. 85, 88 - 89
(1876).  THE COURT HAS ALSO IDENTIFIED "A COLLATERAL OBJECTIVE OF THE
ACT--PROTECTION OF THE COLLECTOR FROM LITIGATION PENDING A SUIT FOR
REFUND."  WILLIAMS PACKING, SUPRA, AT 7 - 8. 

IN FURTHERANCE OF THESE GOALS, THE COURT IN ITS MOST RECENT READING
GAVE THE ACT ALMOST LITERAL EFFECT.  IN WILLIAMS PACKING, AN EMPLOYER
SOUGHT TO ENJOIN THE COLLECTION OF FICA AND FUTA TAXES THAT THE
EMPLOYER ALLEGED WERE NOT OWED AND WOULD DESTROY ITS BUSINESS.  THE
COURT HELD UNANIMOUSLY THAT THE SUIT WAS BARRED BY THE ACT.  ONLY UPON
PROOF OF THE PRESENCE OF TWO FACTORS COULD THE LITERAL TERMS OF 7421
(A) BE AVOIDED:  FIRST, IRREPARABLE INJURY, THE ESSENTIAL PREREQUISITE
FOR INJUNCTIVE RELIEF IN ANY CASE; AND SECOND, CERTAINTY OF SUCCESS ON
THE MERITS.  ID., AT 6 - 7.  AN INJUNCTION COULD ISSUE ONLY "IF IT IS
CLEAR THAT UNDER NO CIRCUMSTANCES COULD THE GOVERNMENT ULTIMATELY
PREVAIL . . . ."  ID., AT 7.  AND THIS DETERMINATION WOULD BE MADE ON
THE BASIS OF THE INFORMATION AVAILABLE TO THE GOVERNMENT AT THE TIME OF
THE SUIT.  "ONLY IF IT IS THEN APPARRENT THAT, UNDER THE MOST LIBERAL
VIEW OF THE LAW AND THE FACTS, THE UNITED STATES CANNOT ESTABLISH ITS
CLAIM, MAY THE SUIT FOR AN INJUNCTION BE MAINTAINED."  IBID. 

PERHAPS IN RECOGNITION OF THE STRINGENT NATURE OF THE WILLIAMS
PACKING STANDARD AND ITS IMPLICATIONS FOR THIS CASE, PETITIONER MAKES
LITTLE EFFORT TO ARGUE THAT IT CAN MEET THAT TEST.  RATHER, IT ASSERTS
THAT THE ANTI-INJUNCTION ACT, PROPERLY CONSTRUED, IS NOT APPLICABLE,
THAT WILLIAMS PACKING IS NOT THE CONTROLLING READING OF THE ACT, AND
THAT REJECTION OF BOTH THESE CONTENTIONS WOULD WORK A DENIAL OF DUE
PROCESS OF LAW.  WE FIND THESE ARGUMENTS UNPERSUASIVE.              A 

FIRST, PETITIONER CONTENDS THAT THE ACT IS INAPPLICABLE BECUASE THIS
IS NOT A SUIT "FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR
COLLECTION OF ANY TAX . . . ."  UNDER PETITIONER'S THEORY, ITS SUIT IS
INTENDED SOLELY TO COMPEL THE SERVICE TO REFRAIN FROM WITHDRAWING
PETITIONER'S 501 (C) (3) RULING LETTER AND FROM DEPRIVING PETITIONER'S
DONORS OF ADVANCE ASSURANCE OF DEDUCTIBILITY.  PETITIONER DESCRIBES ITS
GOAL AS THE MAINTENANCE OF THE FLOW OF CONTRIBUTIONS, NOT THE
OBSTRUCTION OF REVENUE. 

PETITIONER'S COMPLAINT AND SUPPORTING DOCUMENTS FILED IN THE
DISTRICT COURT BELIE ANY NOTION THAT THIS IS NOT A SUIT TO ENJOIN THE
ASSESSMENT OR COLLECTION OF FEDERAL TAXES FROM PETITIONER.  IN SUPPORT
OF ITS CLAIM OF IRREPARABLE INJURY, PETITIONER ALLEGED IN PART THAT IT
WOULD BE SUBJECT TO "SUBSTANTIAL" FEDERAL INCOME TAX LIABILITY IF THE
SERVICE WERE ALLOWED TO CARRY OUT ITS THREATENED ACTION.  APP. 6. 
PETITIONER BUTTRESSED THIS CONTENTION WITH SWORN AFFIDAVITS ALLEGING
FEDERAL INCOME TAX LIABILITY OF THREE-QUARTERS OF A MILLION DOLLARS FOR
ONE YEAR AND IN EXCESS OF HALF A MILLION DOLLARS FOR ANOTHER AND
STRESSING THE DETRIMENTAL EFFECT SUCH TAX LIABLILITY WOULD HAVE ON
PETITIONER'S CAPACITY TO OPERATE ITS INSTITUTION, TO SUPPORT ITS
PERSONNEL, AND TO CONTINUE WITH ITS EXPANSION PLANS.  ID., AT 10 - 11,
43 - 44.  THESE ALLEGATIONS LEAVE LITTLE DOUBT THAT A PRIMARY PURPOSE
OF THIS LAWSUIT IS TO PREVENT THE SERVICE FROM ASSESSING AND COLLECTING
INCOME TAXES FROM PETITIONER. 

WE RECOGNIZE THAT PETITIONER'S ASSERTIONS THAT IT WILL OWE FEDERAL
INCOME TAXES SHOULD ITS 501 (C)(3) STATUS BE REVOKED ARE OPEN TO
DEBATE, BECAUSE THEY ARE BASED IN PART ON A FAILURE TO TAKE INTO
ACCOUNT POSSIBLE DEDUCTIONS FOR DEPRECIATION OF PLANT AND EQUIPMENT. 
EVEN IF IT COULD BE SHOWN, HOWEVER, THAT PETITIONER WOULD OWE NO
FEDERAL INCOME TAXES IF ITS 501 (C)(3) STATUS WERE REVOKED, THIS WOULD
STILL BE A SUIT TO RESTRAIN THE ASSESSMENT OR COLLECTION OF TAXES
BECAUSE PETITIONER WOULD ALSO BE LIABLE FOR FICA AND FUTA TAXES. 
FEDERAL INCOME TAXES OR FICA OR FUTA TAXES.  SEE, E.G., WILLIAMS
PACKING, SUPRA.  MOREOVER, PETITIONER SEEKS TO RESTRAIN THE COLLECTION
OF TAXES FROM ITS DONORS--TO FORCE THE SERVICE TO CONTINUE TO PROVIDE
ADVANCE ASSURANCE TO THOSE DONORS THAT CONTRIBUTIONS TO PETITIONER WILL
BE RECOGNIZED AS TAX DEDUCTIBLE, THEREBY REDUCING THEIR TAX LIABILITY. 
ALTHOUGH IN THIS REGARD PETITIONER SEEKS TO LOWER THE TAXES OF THOSE
OTHER THAN ITSELF, THE ACT IS NONETHELESS CONTROLLING.  /10/  THUS IN
ANY OF ITS IMPLICATIONS, THIS CASE FALLS WITHIN THE LITERAL SCOPE AND
THE PURPOSES OF THE ACT. 

PETITIONER FURTHER CONTENDS THAT THE SERVICE'S ACTIONS DO NOT
REPRESENT AN EFFORT TO PROTECT THE REVENUES BUT AN ATTEMPT TO REGULATE
THE ADMISSIONS POLICIES OF PRIVATE UNIVERSITIES.  UNDER THIS LINE OF
ARGUMENT, THE ANTI-INJUNCTION ACT IS SAID TO BE INAPPLICABLE BECAUSE
THE CASE DOES NOT TRULY INVOLVE TAXES.  WE DISAGREE. 

THE SERVICE BASES ITS PRESENT POSITION WITH REGARD TO THE TAX STATUS
OF SEGREGATIVE PRIVATE SCHOOLS ON ITS INTERPRETATION OF THE CODE.  /11/
THERE IS NO EVIDENCE THAT THAT POSITION DOES NOT REPRESENT A GOOD
FAITH EFFORT TO ENFORCE THE TECHNICAL REQUIREMENTS OF THE TAX LAWS,
AND, WITHOUT INDICATING A VIEW AS TO WHETHER THE SERVICE'S
INTERPRETATION IS CORRECT, WE CANNOT SAY THAT ITS POSITION HAS NO LEGAL
BASIS OR IS UNRELATED TO THE PROTECTION OF THE REVENUES.  THE ACT IS
THEREFORE APPLICABLE.  PETITIONER'S ATTRIBUTION OF NON-TAX-RELATED
MOTIVES TO THE SERVICE IGNORES THE FACT THAT PETITIONER HAS NOT SHOWN
THAT THE SERVICE'S ACTION IS WITHOUT AN INDEPENDENT BASIS IN THE
REQUIREMENTS OF THE CODE.  MOREOVER, PETITIONER'S ARGUMENT FAILS TO
GIVE APPROPRIATE WEIGHT TO BAILEY V. GEORGE, 259 U.S. 16 (1922).  IN
THAT CASE, THE COURT HELD THAT THE ACT BLOCKED A PRE-ENFORCEMENT SUIT
TO ENJOIN THE FEDERAL CHILD LABOR TAX, ALTHOUGH THE TAX WAS CHALLENGED
AS A REGULATORY MEASURE BEYOND THE TAXING POWER OF CONGRESS. 
SIGNIFICANTLY, THE COURT ANNOUNCED BAILEY V. GEORGE ON THE SAME DAY
THAT IT ISSUED BAILEY V. DREXEL FURNITURE CO., 259 U.S. 20 (1922), A
TAX-REFUND CASE IN WHICH THE COURT STRUCK DOWN THE CHILD LABOR TAX AS
UNCONSTITUTIONAL ON THE GROUNDS THAT THE TAXPAYER ATTEMPTED TO RAISE
PREMATURELY IN BAILEY V. GEORGE.  /12/ 

PETITIONER ALSO ARGUES THAT 7421 (A) IS NOT CONTROLLING BECAUSE WHEN
THE ACT WAS PASSED IN 1867 CONGRESS COULD NOT POSSIBLY HAVE FORESEEN
SOMETHING AS SOPHISTICATED AS THE COMPARATIVELY RECENT RULING-LETTER
PROGRAM /13/  AND THE SPECIAL IMPORTANCE OF THAT PROGRAM FOR 501 (C)(3)
ORGANIZATIONS.  THIS ARGUMENT PROVES TOO MUCH, HOWEVER, SINCE THE SAME
CONGRESS ALSO COULD NOT HAVE FORSEEN, FOR EXAMPLE, FICA OR FUTA TAXES,
TO WHICH THE PROHIBITORY COMMAND OF 7421 (A) INDISPUTABLY APPLIES. 
SEE, E.G., WILLIAMS PACKING, 370 U.S. 1 (1970).  MOREOVER, THROUGH THE
YEARS CONGRESS HAS REPEATEDLY REENACTED THE ANTI-INJUNCTION ACT /14/
AT TIMES WHEN IT WAS OBVIOUSLY AWARE OF THE CONTINUOUSLY INCREASING
COMPLEXITY OF THE FEDERAL TAX SYSTEM.  /15/ 

PETITIONER NEXT ARGUES THAT ENOCHS V. WILLIAMS PACKING & NAVIGATION
CO., SUPRA, DOES NOT CONSTITUTE AN ALL-ENCOMPASSING READING OF THE
ACT.  PETITIONER CONTENDS, ON THE BASIS OF PRIOR PRECEDENTS, THAT 7421
(A) IS SUBJECT TO JUDICIALLY CREATED EXCEPTIONS OTHER THAN THE "UNDER
NO CIRCUMSTANCES" TEST ANNOUNCED IN WILLIAMS PACKING.  BUT THE COURT'S
UNANIMOUS OPINION IN WILLIAMS PACKING INDICATES THAT THE CASE WAS MEANT
TO BE THE CAPSTONE TO JUDICIAL CONSTRUCTION OF THE ACT.  IT SPELLS AN
END TO A CYCLICAL PATTERN OF ALLEGIANCE TO THE PLAIN MEANING OF THE
ACT, FOLLOWED BY PERIODS OF UNCERTAINTY CAUSED BY A JUDICIAL DEPARTURE
FROM THAT MEANING, AND FOLLOWED IN TURN BY THE COURT'S REDISCOVERY OF
THE ACT'S PURPOSE. 

DURING THE FIRST HALF CENTURY OF THE ACT'S EXISTENCE, THE COURT GAVE
IT LITERAL FORCE, WITHOUT REGARD TO THE CHARACTER OF THE TAX, THE
NATURE OF THE PRE-ENFORCEMENT CHALLENGE TO IT, OR THE STATUS OF THE
PLAINTIFF.  SEE STATE RAILROAD TAX CASES, 92 U.S., AT 613 - 614; SNYDER
V. MARKS, 109 U.S. 189 (1883); PACIFIC STEAM WHALING CO. V. UNITED
STATES, 187 U.S. 447 (1903); DODGE V. OSBORN, 240 U.S. 118 (1916);
BAILEY V. GEORGE, 259 U.S. 16 (1922).  /16/  OCCASIONALLY, HOWEVER, THE
COURT NOTED IN DICTUM THAT UNSPECIFIED EXTRAORDINARY AND EXCEPTIONAL
CIRCUMSTANCES MIGHT JUSTIFY AN INJUNCTION DESPITE THE ACT.  I.G., DODGE
V. OSBORN, SUPRA, AT 122; BAILEY V. GEORGE, SUPRA, AT 20.  IN 1922, THE
COURT SEIZED UPON THESE DICTA AND PERMITTED PRE-ENFORCEMENT INJUNCTIVE
SUITS AGAINST TAX STATUTES THAT WERE VIEWED AS PENALTIES OR AS ADJUNCTS
TO THE CRIMINAL LAW.  HILL V. WALLACE, 259 U.S. 44 (1922); LIPKE V.
LEDERER, 259 U.S. 557 (1922); REGAL DRUG CORP. V. WARDELL, 260 U.S. 386
(1922).  SHORTLY THEREAFTER, HOWEVER, THE COURT MADE CLEAR THAT HILL,
LIPKE, AND REGAL DRUG WERE OF NARROW SCOPE AND HAD NO APPLICATION TO
PRE-ENFORCEMENT CHALLENGES TO TRULY REVENUE-RAISING TAX STATUTES. 
GRAHAM V. DU PONT, 262 U.S. 234 (1923).  /17/  THUUS, THE COURT'S FIRST
DEPARTURE FROM A LITERAL READING OF THE ACT PRODUCED A PROMPT
CORRECTION IN COURSE. 

IN THE 1930'S THE COURT DECIDED MILLER V. STANDARD NUT MARGARINE
CO., 284 U.S. 498 (1932), AND ALLEN V. REGENTS OF THE UNIVERSITY SYSTEM
OF GEORGIA, 304 U.S. 139 (1938), THE CASES RELIED ON MOST HEAVILY BY
PETITIONER.  STANDARD NUT SET FORTH A NEW DEFINITION OF THE
EXTRAORDINARY AND EXCEPTIONAL CIRCUMSTANCES TEST, WHICH WAS FOLLOWED IN
REGENTS.  IN STANDARD NUT THE COURT STATED THAT THE ACT IS MERELY
"DECLARATORY OF THE PRINCIPLE" OF CASES PRIOR TO ITS PASSAGE THAT
EQUITY USUALLY, BUT NOT ALWAYS, DISAVOWS INTERFERENCE WITH TAX
COLLECTION; THUS, THE ACT WAS TO BE CONSTURED "AS NEAR AS MAY BE IN
HARMONY WITH (EQUITY DOCTRINE) AND THE REASONS UPON WHICH IT REST." 
284 U.S., AT 509.  THROUGH THIS INTERPRETATION, THE CONCEPT OF
EXTRAORDINARY AND EXCEPTIONAL CIRCUMSTANCES WAS REDUCED TO THE
TRADITIONAL EQUITABLE REQUIREMENTS FOR ISSUANCE OF AN INJUNCTION. 

STANDARD NUT WAS SUCH A SIGNIFICANT DEVIATION FROM PRECEDENT THAT IT
WAS REFERRED TO BY A COMMENTATOR AT THE TIME AS "A TRIBUTE TO THE
TENACITY OF THE AMERICAN TAXPAYER" AND "LITTLE SHORT OF PHENOMENAL." 
/18/  READ LITERALLY, THE COURT'S OPINION EFFECTIVELY REPEALED THE ACT,
SINCE THE ACT WAS VIEWED AS REQUIRING NOTHING MORE THAN EQUITY DOCTRINE
HAD DEMANDED BEFORE THE ACT'S PASSAGE.  THE INCONGRUITY OF THIS
POSITION HAS NOT ESCAPED NOTICE.  /19/  IT UNDOUBTEDLY LED DIRECTLY TO
THE COURT'S REEXAMINATION OF THE REQUIREMENTS OF THE ACT IN WILLIAMS
PACKING, THE SECOND TIME THE COURT HAS UNDERTAKEN TO REHABILITATE THE
ACT FOLLOWING DEBILITATING DEPARTURES FROM ITS EXPLICIT LANGUAGE.  SEE
GRAHAM V. DU PONT, SUPRA. 

WILLIAMS PACKING SWITCHED THE FOCUS OF THE EXTRAORDINARY AND
EXCEPTIONAL CIRCUMSTANCES TEST FROM A SHOWING OF THE DEGREE OF HARM TO
THE PLAINTIFF ABSENT AN INJUNCTION TO THE REQUIREMENT THAT IT BE
ESTABLISHED THAT THE SERVICE'S ACTION IS PLAINLY WITHOUT A LEGAL
BASIS.  THE COURT IN ESSENCE READ STANDARD NUT NOT AS AN INSTANCE OF
IRREPARABLE UNJURY BUT AS A CASE WHERE THE SERVICE HAD NO CHANCE OF
SUCCESS ON THE MERITS.  370 U.S., AT 7.  AND THE COURT EXPLICITLY HELD
THAT THE ACT MAY NOT BE EVADED "MERELY BECAUSE COLLECTION WOULD CAUSE
AN IRREPARABLE INJURY, SUCH AS THE RUINATION OF THE TAXPAYER'S
ENTERPRISE."  ID., AT 6.  YET PETITIONER'S ARGUMENT THAT WE SHOULD FIND
WILLIAMS PACKING INAPPLICABLE TURNS, IN THE LAST ANALYSIS, ON ITS CLAIM
THAT TO DO OTHERWISE WOULD SUBJECT IT TO GREAT HARM.  THE COURT
REJECTED THAT CONSIDERATION IN WILLIAMS PACKING ITSELF, AND WE REJECT
IT AS A REASON FOR FINDING THAT CASE NOT CONTROLLING.  UNDER THE
LANGUAGE OF THE ACT, THE DEGREE OF HARM IS NOT A FACTOR, AND AS A
MATTER OF JUDICIAL CONSTRUCTION, IT DOES NOT PROVIDE A MEANINGFUL
STOPPING POINT BETWEEN STANDARD NUT AND WILLIAMS PACKING.  ACCEPTANCE
OF PETITIONER'S IRREPARABLE INJURY ARGUMENT WOULD SIMPLY REVIVE THE
EVISCERATION OF THE ACT INHERENT IN STANDARD NUT. 

        C 

ASSUMING, ARGUENDO, THE APPLICABILITY OF 7421 (A) AND WILLIAMS
PACKING, PETITIONER CONTENDS THAT FORCING IT TO MEET THE STANDARDS OF
THOSE AUTHORITIES WILL DENY IT DUE PROCESS OF LAW IN LIGHT OF THE
IRREPARABLE INJURY IT WILL SUFFER PENDING RESORT TO ALTERNATIVE
PROCEDURES FOR REVIEW AND OF THE ALLEGED INADEQUACIES OF THOSE REMEDIES
AT LAW.  THE COURT DISMISSED OUT OF HAND SIMILAR CONTENTIONS NEARLY 60
YEARS AGO, /20/  AND WE FIND SUCH ARGUMENTS NO MORE COMPELLING NOW THAN
THEN. 

THIS IS NOT A CASE IN WHICH AN AGGRIEVED PARTY HAS NO ACCESS AT ALL
TO JUDICIAL REVIEW.  WERE THAT TRUE, OUR CONCLUSION MIGHT WELL BE
DIFFERENT.  IF, AS ALLEGED IN ITS COMPLAINT, PETITIONER WILL HAVE
TAXABLE INCOME UPON THE WITHDRAWAL OF ITS 501 (C)(3) STATUS, IT MAY IN
ACCORDANCE WITH PRESCRIBED PROCEDURES PETITION THE TAX COURT TO REVIEW
THE ASSESSMENT OF INCOME TAXES.  ALTERNATIVELY, PETITIONER MAY PAY
INCOME TAXES, OR, IN THEIR ABSENCE, AN INSTALLMENT OF FICA OR FUTA
TAXES, EXHAUST THE SERVICE'S INTERNAL REFUND PROCEDURES, AND THEN BRING
SUIT FOR A REFUND.  THESE REVIEW PROCEDURES OFFER PETITIONER A FULL,
ALBEIT DELAYED, OPPORTUNITY TO LITIGATE THE LEGALITY OF THE SERVICE'S
REVOCATION OF TAX-EXEMPT STATUS AND WITHDRAWAL OF ADVANCE ASSURANCE OF
DEDUCTIBILITY.  SEE, E.G., CHRISTIAN ECHOES NATIONAL MINISTRY, INC. V.
UNITED STATES, 470 F.2D 849 (CA10 1972), CERT. DENIED, 414 U.S. 864
(1973); CENTER ON CORPORATE RESPONSIBILITY, INC. V. SHULTZ, 368 F.
SUPP. 863 (DC 1972).  /21/ 

WE DO NOT SAY THAT THESE AVENUES OF REVIEW ARE THE BEST THAT CAN BE
DEVISED.  THEY PRESENT SERIOUS PROBLEMS OF DELAY, DURING WHICH THE FLOW
OF DONATIONS TO AN ORGANIZATION WILL BE IMPAIRED AND IN SOME CASES
PERHAPS EVEN TERMINATED.  BUT, AS THE SERVICE NOTES, SOME DELAY MAY BE
AN INEVITABLE CONSEQUENCE OF THE FACT THAT DISPUTES BETWEEN THE SERVICE
AND A PARTY CHALLENGING THE SERVICE'S ACTIONS ARE NOT SUSCEPTIBLE OF
INSTANT RESOLUTION THROUGH LITIGATION.  AND ALTHOUGH THE CONGRESSIONAL
RESTRICTION TO POSTENFORCEMENT REVIEW MAY PLACE AN ORGANIZATION
CLAIMING TAX-EXEMPT STATUS IN A PRECARIOUS FINANCIAL POSITION, THE
PROBLEMS PRESENTED DO NOT RISE TO THE LEVEL OF CONSTITUTIONAL
INFIRMITIES, IN LIGHT OF THE POWERFRUL GOVERNMENTAL INTERESTS IN
PROTECTING THE ADMINISTRATION OF THE TAX SYSTEM FROM PREMATURE JUDICIAL
INTERFERENCE, E.G., CHEATHAM V. UNITED STATES, 92 U.S., AT 88 - 89;
STATE RAILROAD TAX CASES, 92 U.S., AT 613 - 614, AND OF THE
OPPORTUNITIES FOR REVIEW THAT ARE AVAILABLE.  /22/

        IV 

SINCE WE HOLD THAT WILLIAMS PACKING, SUPRA, GOVERNS THIS CASE, THE
REMAINING ISSUE IS WHETHER PETITIONER HAS MET THE STANDARDS OF THAT
CASE.  WITHOUT DECIDING THE MERITS, WE THINK THAT PETITIONER'S FIRST
AMENDMENT, DUE PROCESS, AND EQUAL PROTECTION CONTENTIONS ARE
SUFFICIENTLY DEBATABLE TO FORECLOSE ANY NOTION THAT "UNDER NO
CIRCUMSTANCES COULD THE GOVERNMENT ULTIMATELY PREVAIL . . . ."  370
U.S., AT 7.  SEE, E.G., GREEN V. CONNALLY, 330 F. SUPP. 1150 (DC),
AFF'D PER CURIAM SUB NOM.  COIT V. GREEN, 404 U.S. 997 (1971). 
ACCORDINGLY, THE COURT OF APPEALS DID NOT ERR IN HOLDING THAT 7421 (A)
DEPRIVED THE DISTRICT COURT OF JURISDICTION TO ISSUE THE INJUNCTIVE
RELIEF PETITIONER SOUGHT. 

IN HOLDING THAT 7421 (A) BLOCKS THE PRESENT SUIT, WE ARE NOT UNAWARE
THAT CONGRESS HAS IMPOSED AN ESPECIALLY HARSH REGIME ON 501 (C)(3)
ORGANIZATIONS THREATENED WITH LOSS OF TAX-EXEMPT STATUS AND WITH
WITHDRAWAL OF ADVANCE ASSURANCE OF DEDUCTIBILITY OF CONTRIBUTIONS.  A
FORMER COMMISSIONER OF THE INTERNAL REVENUE SERVICE HAS SHARPLY
CRITICIZED THE SYSTEM APPLICABLE TO SUCH ORGANIZATIONS.  /23/  THE
DEGREE OF BUREAUCRATIC CONTROL THAT, PRACTICALLY SPEAKING, HAS BEEN
PLACED IN THE SERVICE OVER THOSE IN PETITIONER'S POSITION IS
SUSCEPTIBLE OF ABUSE, REGARDLESS OF HOW CONSCIENTIOUSLY THE SERVICE MAY
ATTEMPT TO CARRY OUT ITS RESPONSIBILITIES.  SPECIFIC TREATMENT OF NOT
FOR-PROFIT ORGANIZATIONS TO ALLOW THEM TO SEEK PRE-ENFORCEMENT REVIEW
MAY WELL MERIT CONSIDERATION.  BUT THIS MATTER IS FOR CONGRESS, WHICH
IS THE APPROPRIATE BODY TO WEIGH THE RELEVANT, POLICY-LADEN
CONSIDERATIONS, SUCH AS THE HARSHNESS OF THE PRESENT LAW, THE
CONSEQUENCES OF AN UNJUSTIFIED REVOCATION OF 501 (C)(3) STATUS, THE
NUMBER OF ORGANIZATIONS IN ANY YEAR THREATENED WITH SUCH REVOCATION,
THE COMPARABILITY OF THOSE ORGANIZATIONS TO OTHERS WHICH RELY ON THE
SERVICE'S RULING-LETTER PROGRAM, AND THE LITIGATION BURDEN ON THE
SERVICE AND THE EFFECT ON THE ASSESSMENT AND COLLECTION OF FEDERAL
TAXES IF THE LAW WERE TO BE CHANGED. 

THE JUDGMENT IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  SECTION 170 (A) OF THE CODE PROVIDES THAT "(THERE SHALL BE
ALLOWED AS A DEDUCTION ANY CHARITABLE CONTRIBUTION (AS DEFINED IN
SUBSECTION (C)) PAYMENT OF WHICH IS MADE WITHIN THE TAXABLE YEAR.  . .
."  SECTION 170 (C)(2) DECLARES: 

"CHARITABLE CONTRIBUTION DEFINED.--FOR PURPOSES OF THIS SECTION, THE
TERM 'CHARITABLE CONTRIBUTION' MEANS A CONTRIBUTION OR GIFT TO OR FOR
THE USE OF--

        .         .         .         .         . 

"(2) A CORPORATION, TRUST, OR COMMUNITY CHEST, FUND, OR FOUNDATION-
 

"(A) CREATED OR ORGANIZED IN THE UNITED STATES OR IN ANY POSSESSION
THEREOF, OR UNDER THE LAW OF THE UNITED STATES, ANY STATE, THE DISTRICT
OF COLUMBIA, OR ANY POSSESSION OF THE UNITED STATES; 

"(B) ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE,
SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSE OR FOR THE PREVENTION OF
CRUELTY TO CHILDREN OR ANIMALS; 

"(C) NO PART OF THE NET EARNINGS OF WHICH INURES TO THE BENEFIT OF ANY
PRIVATE SHAREHOLDER OR INDIVIDUAL; AND 

"(D) NO SUBSTANTIAL PART OF THE ACTIVITIES OF WHICH IS CARRYING ON
PROPAGANDA, OR OTHERWISE ATTEMPTING, TO INFLUENCE LEGISLATION, AND
WHICH DOES NOT PARTICIPATE IN, OR INTERVENE IN (INCLUDING THE
PUBLISHING OR DISTRIBUTING OF STATEMENTS), ANY POLITICAL CAMPAIGN ON
BEHALF OF ANY CANDIDATE FOR PUBLIC OFFICE."  THE ORGANIZATIONS SET
FORTH IN 170 (C)(2) ARE, BUT FOR A FEW UNIMPORTANT EXCEPTIONS, THE SAME
AS THOSE DESCRIBED IN 501 (C)(3).  ANALOGOUS DEDUCTIONS FOR
CONTRIBUTIONS TO 501 (C)(3) ORGANIZATIONS ARE PROVIDED FOR FEDERAL
ESTATE AND GIFT TAX PURPOSES.  SEE CODE 2055 (A)(2) AND 2522 (A)(2), 26
U.S.C. 2055 (A)(2) AND 2522 (A)(2). 

/2/  SECTION 3.01 OF REV. PROC. 72 - 39, 1972 - 2 CUM. BULL.  818,
PROVIDES: 

"WHERE AN ORGANIZATION LISTED IN (THE CUMULATIVE LIST) CEASES TO
QUALIFY AS AN ORGANIZATION CONSTIBUTIONS TO WHICH ARE DEDUCTIBLE TO
QUALIFY AS AN ORGANIZATION CONSTRIBUTIONS TO WHICH ARE DEDUCTIBLE UNDER
OR A DETERMINATION LETTER PREVIOUSLY ISSUED TO IT, CONTRIBUTIONS MADE
TO THE ORGANIZATION BY PERSONS UNAWARE OF TE CHANGES IN THE STATUS OF
THE ORGANIZATION GENERALLY WILL BE CONSIDERED ALLOWABLE IF MADE ON OR
BEFORE THE DATE OF PUBLICATION OF THE INTERNAL REVENUE BULLETIN
ANNOUNCING THAT CONTRIBUTIONS ARE NO LONGER DEDUCTIBLE.  HOWEVER, THE
SERVICE IS NOT PRECLUDED FROM DISALLOWING A DEDUCTION FOR ANY
CONTRIBUTION MADE AFTER AN ORGANIZATION CEASES TO QUALIFY UNDER SECTION
170, WHERE THE CONTRIBUTOR (1) HAD KNOWLEDGE OF THE REVOCATION OF THE
RULING OR DETERMINATION LETTER, (2) WAS AWARE THAT SUCH REVOCATION WAS
IMMINENT, OR (3) WAS IN PART RESPONSIBLE FOR, OR WAS AWARE OF, THE
ACTIVITIES OR DEFICIENCIES ON THE PART OF THE ORGANIZATION THAT GAVE
RISE TO THE LOSS OF QUALIFICATION." 

/3/  THIS IS PARTICULARLY SO WITH RESPECT TO TAX-EXEMPT PRIVATE
FOUNDATIONS, BECAUSE THEY ARE SUBJECT TO TAX LIABILITY IF THEY
CONTRIBUTE FUNDS TO AN ORGANIZATION THAT DOES NOT QUALIFY UNDER
170(C)(2).  SEE CODE 4945 (D)(5), 26 U.S.C. 4945(D)(5). 

/4/  IN RECOGNITION OF THE SIGNIFICANCE OF SUCH A CHANGE IN STATUS,
THE SERVICE PROVIDES SEVERAL STAGES OF INTERNAL ADMINISTRATIVE REVIEW. 
IF THE SERVICE INDICATES, PURSUANT TO PRESCRIBED PROCEDURES, THAT CAUSE
FOR REVOCATION EXISTS, THE AFFECTED ORGANIZATION IS ENTITLED TO SUBMIT
WRITTEN PROTESTS AND TO CONFERENCES AT BOTH THE DISTRICT DIRECTOR AND
NATIONAL OFFICE LEVEL.  SECTION 11, REV. PROC. 72 - 4, 1972 - 1 CUM.
BULL., AT 709; SECTION 4, REV. PROC. 72 - 39, 1972 - 2 CUM. BULL., AT
818 - 819. 

/5/  AN ORGANIZATION MAY LOSE ITS 501 (C)(3) STATUS BUT STILL BE
EXEMPT FROM FEDERAL INCOME TAXES IF IT QUALIFIES, FOR EXAMPLE, AS A 501
(C) (4) SOCIAL WELFARE ORGANIZATION.  BUT THE LOSS OF 501 (C)(3) STATUS
INEVITABLY MEANS THAT THE EXEMPTIONS FROM FICA AND FUTA TAXES NO LONGER
APPLY, SINCE THOSE EXEMPTIONS ARE KEYED TO 501 (C)(3).  SEE CODE 3121
(B)(8)(B) AND 3306 (C)(8). 

/6/  SEE ACT OF MAR. 2, 1867, 10, 14 STAT. 475; REV. STAT 3224
(1874); INT. REV. CODE OF 1939, 3653.  SECTION 7421 (A) OF THE CODE
STATES: 

"EXCEPT AS PROVIDED IN SECTIONS 6212 (A) AND (C), 6213 (A), AND 7426
(A) AND (B)(1), NO SUIT FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT
OR COLLECTION OF ANY TAX SHALL BE MAINTAINED IN ANY COURT BY ANY
PERSON, WHETHER OR NOT SUCH PERSON IS THE PERSON AGAINST WHOM SUCH TAX
WAS ASSESSED."  (EMPHASIS ADDED.)  THE ITALICIZED PORTION OF 7421 (A)
IS IDENTICAL TO LANGUAGE IN 10 OF THE ACT OF MAR. 2, 1867, BUT FOR THE
FIRST "ANY," WHICH THE REVISERS ADDED TO THE REVISED STATUTES VERSION. 
SEE SNYDER V. MARKS, 109 U.S. 189, 192 (1883).  NONE OF THE EXCEPTIONS
IN 7421(A) IS RELEVANT TO THIS CASE.  THE PHRASE COMMENCING WITH "BY
ANY PERSON . . ."  WAS ADDED BY 110(C) OF THE FEDERAL TAX LIEN ACT OF
1966, PUB. L. 89 - 719, 80 STAT. 1144.  THE MAIN PURPOSE OF THE
ADDITION OF THIS LANGUAGE WAS TO DEAL WITH CASES WHERE THIRD PARTIES
WHO ARE NOT THEMSELVES SUBJECT TO TAX LIABILITY HOLD PROPERTY LIENS
THAT COMPETE WITH FEDERAL TAX LIENS.  DUE TO THE LITERAL MEANING OF THE
ANTI-INJUNCTION ACT, SUCH PERSONS WERE PRIOR TO 1966, OFTEN UNABLE TO
PROTECT THEIR LEGITIMATE PROPERTY INTERESTS WHEN THE SERVICE FORECLOSED
ON PROPERTY ON WHICH IT HELD A TAX LIEN.  SEE H.R. REP. NO. 1884, 89TH
CONG., 2D SESS., 27 - 28 (1966).  SUCH PERSONS ARE NOW GIVEN A RIGHT OF
ACTION UNDER CODE 7426, 26 U.S.C. 7426, AND THE LANGUAGE OF 7421(A), AS
AMENDED, RENDERS THAT ACTION EXCLUSIVE.  THE "BY ANY PERSON" PHRASE IS,
HOWEVER, ALSO A REAFFIRMATION OF THE PLAIN MEANING OF THE EMPHASIZED
PORTION OF 7421(A).  IN THIS RESPECT, IT IS DECLARATORY, NOT
INNOVATIVE.  CF. BITTKER & KAUFMAN, TAXES AND CIVIL RIGHTS:
"CONSTITUTIONALIZING" THE INTERNAL REVENUE CODE, 82 YALE L. J. 51, 57,
N 22 (1972).  WE ARE AWARE OF THE CONTRARY READING OF THE "BY THE
PERSON" PHRASE IN MCGLOTTEN V. CONNALLY, 338 F.SUPP.  448, 453 N. 25
(DC 1972) (THREE-JUDGE COURT), BUT WE ARE OF A DIFFERENT VIEW. 

/7/  THE CONGRESSIONAL ANTIPATHY FOR PREMATURE INTERFERENCE WITH THE
ASSESSMENT OR COLLECTION OF ANY FEDERAL TAX ALSO EXTENDS TO DECLARATORY
JUDGMENT ACT, 48 STAT. 955, NOW 28 U.S.C. 2201 - 2202, CONGRESS AMENDED
THAT ACT TO EXCLUDE SUITS "WITH RESPECT TO FEDERAL TAXES . . . ," 405
OF THE REVENUE ACT OF 1935, C. 829, 49 STAT. 1027, THUS REAFFIRMING THE
RESTRICTIONS SET OUT IN THE ANTI-INJUNCTION ACT.  THE DECLARATORY
JUDGMENT ACT NOW READS:  "2201.  CREATION OF REMEDY. 

"IN A CASE OF ACTUAL CONTROVERSY WITHIN ITS JURISDICTION, EXCEPT
WITH RESPECT TO FEDERAL TAXES, ANY COURT OF THE UNITED STATES, UPON THE
FILING OF AN APPROPRIATE PLEADING, MAY DECLARE THE RIGHTS AND OTHER
LEGAL RELATIONS OF ANY INTERESTED PARTY SEEKING SUCH DECLARATION,
WHETHER OR NOT FURTHER RELIEF IS OR COULD BE SOUGHT.  ANY SUCH
DECLARATION SHALL HAVE THE FORCE AND EFFECT OF A FINAL JUDGMENT OR
DECREE AND SHALL BE REVIEWABLE AS SUCH."  (EMPHASIS ADDED.)  "2202. 
FURTHER RELIEF. 

"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." 

SOME HAVE NOTED THAT THE FEDERAL TAX EXCEPTION TO THE DECLARATORY
JUDGMENT ACT MAY BE MORE SWEEPING THAN THE ANTI-INJUNCTION ACT.  E.G.,
E. BORCHARD, DECLARATORY JUDGMENTS 855 (2D ED. 1941); BITTKER &
KAUFMAN, SUPRA, N. 6, AT 58.  SEE S. REP. NO. 1240, 74TH CONG., 1ST
SESS., 11 (1935).  THE SERVICE TAKES THAT POSITION IN THIS CASE,
ARGUING THAT ANY SUIT FOR AN INJUNCTION IS ALSO AN ACTION FOR A
DECLARATORY JUDGMENT AND THUS IS BARRED BY THE LITERAL TERMS OF THE
DECLARATORY JUDGMENT ACT, WITHOUT REGARD TO THE INDEPENDENT FORCE OF
7421(A).  A NUMBER OF COURTS, ON THE OTHER HAND, HAVE HELD THAT THE
FEDERAL TAX EXCEPTION TO THE DECLARATORY JUDGMENT ACT AND THE ANTI
INJUNCTION ACT HAVE COTERMINOUS APPLICATION.  E.G., "AMERICANS UNITED"
INC. V. WALTERS, 155 U.S. APP. D.C. 284, 291, 477 F.2D 1169, 1176
(1973), REV'D SUB NOM. ALEXANDER V. "AMERICANS UNITED" INC., POST, P.
852; TOMLINSON V. SMITH, 128 F.2D 808 (CA7 1942); MCGLOTTEN V.
CONNALLY, SUPRA; JULES HAIRSTYLISTS OF MARYLAND, INC. V. UNITED STATES,
268 F. SUPP. 511 (CD. 1967), AFF'D, 389 F.2D 389 (CA4), CERT. DENIED,
391 U.S. 934 (1968).  PETITIONER CITES THESE CASES IN RESPONSE TO THE
SERVICE'S RELIANCE ON THE DECLARATORY JUDGMENT ACT.  THERE IS NO
DISPUTE, HOWEVER, THAT THE FEDERAL TAX EXCEPTION TO THE DECLARATORY
JUDGMENT ACT IS AT LEAST AS BROAD AS THE ANTI-INJUNCTION ACT.  BECAUSE
WE HOLD THAT THE INSTANT CASE IS BARRED BY THE LATTER PROVISION, THERE
IS NO OCCASION TO RESOLVE WHETHER THE FORMER IS EVEN MORE PRECLUSIVE. 
NOR NEED WE DECIDE WHETHER ANY ACTION FOR AN INJUNCTION IS OF NECESSITY
A REQUEST FOR A DECLARATION OF RIGHTS THAT TRIGGERS THE TERMS OF THE
DECLARATORY JUDGMENT ACT. 

/8/  SEVERAL COURTS HAVE REACHED THE SAME RESULT UNDER THE FEDERAL
TAX EXCEPTION TO THE DECLARATORY JUDGMENT ACT, SET FORTH IN N. 7,
SUPRA.  E.G., LIBERTY AMENDMENT COMMITTEE OF THE U.S.A. V. UNITED
STATES, CIVIL ACTION NO. 70 - 721 (CD CAL. JUNE 19, 1970)
(UNPUBLISHED), AFF'D PER CURIAM, NO. 26507 (CA9 JULY 7, 1972)
(UNPUBLISHED), CERT. DENIED, 409 U.S. 1076 (1972); MITCHELL V. RIDDELL,
402 F.2D 842 (CA9 1968), APPEL DISMISSED AND CERT. DENIED, 394 U.S. 456
(1969); JOLLES FOUNDATION, INC. V. MOYSEY, 250 F.2D 166 (CA2 1967);
KYRON FOUNDATION, INC. V. MOYSEY, 250 F. 2D 166 (CA2 1957); DYRON
FOUNDATION V. DUNLAP, 110 F. SUPP. 428 (DC 1952). 

/9/  SEE NOTE, ENJOINING THE ASSESSMENT AND COLLECTION OF FEDERAL
TAXES DESPITE STATUTORRY PROHIBITION, 49 HARV. L. REV. 109 N. 9 (1935);
GOROVITZ, FEDERAL TAX INJUNCTIONS AND THE STANDARD NUT CASES, 10 TAXES
446 N. 9 (1932). 

/10/  SEE N. 6, SUPRA.  PETITIONER ARGUES THAT THE REVENUES WILL BE
UNAFFECTED BY THE LOSS OF ITS 501(C)(3) STATUS, SINCE IF PETITIONER
LOSES ITS RULING LETTER, DONORS WILL SIMPLY REDIRECT THEIR GIFTS TO
ORGANIZATIONS WHOSE TAX-EXEMPT STATUS IS SECURE, THUS OBTAINING THE
SAME 170 (C)(2) CHARITABLE DEDUCTIONS THEY PRESENTLY ENJOY WHEN THEY
MAKE CONTRIBUTIONS TO PETITIONER.  IT FOLLOWS, ACCORDING TO PETITIONER,
THAT THE ACT'S PRINCIPLE PURPOSE OF PROTECTING THE REVENUES IS NOT
THREATENED BY AN INJUNCTION PRESERVING PETITIONER'S 501 (C)(3) STATUS. 
THUS, THE ACT SHOULD BE FOUND INAPPLICABLE. 

THE ARGUMENT IS TOO SPECULATIVE TO BE PERSUASIVE.  IT PRESUMES THAT
ALL DONORS WHO TAKE 170 (C)(2) DEDUCTIONS WILL DESERT PETITIONER IF THE
RULING LETTER IS WITHDRAWN AND THAT ALL SUCH DONORS WILL MAKE GIFTS IN
EQUIVALENT AMOUNTS TO OTHER TAX-EXEMPT ORGANIZATIONS.  WE DEEM IT
UNLIKELY THAT EITHER PREMISE IS WHOLLY TRUE.  TO THE EXTENT THAT EITHER
PREMISE IS INACCURATE, AN INJUNCTION PRESERVING PETITIONER'S 501(C)(3)
RULING LETTER WILL INTERRUPT THE ASSESSMENT AND COLLECTION OF TAXES. 

/11/  SEE REV. RUL. 71 - 447, 1971 - 2 CUM. BULL.  230.  THE
QUESTION OF WHETHER A SEGREGATIVE PRIVATE SCHOOL QUALIFIES UNDER
501(C)(3) HAS NOT RECEIVED PLENARY REVIEW IN THIS COURT, AND WE DO NOT
REACH THAT QUESTION TODAY.  SUCH SCHOOLS HAVE BEEN HELD NOT TO QUALIFY
UNDER 501(C)(3) IN GREEN V. CONNALLY, 330 F. SUPP. 1150 (DC) (THREE
JUDGE COURT), AFF'D PER CURIAM SUB NOM. COIT V. GREEN, 404 U.S. 997
(1971).  AS A DEFENDANT IN GREEN, THE SERVICE INITIALLY TOOK THE
POSITION THAT SEGREGATIVE PRIVATE SCHOOLS WERE ENTITLED TO TAX-EXEMPT
STATUS UNDER 501(C)(3), BUT IT REVERSED ITS POSITION WHILE THE CASE WAS
ON AP PEAL TO THIS COURT.  THUS, THE COURT'S AFFIRMANCE IN GREEN LACKS
THE PRECEDENTIAL WEIGHT OF A CASE INVOLVING A TRULY ADVERSARY
CONTROVERSY. 

/12/  IN SUPPORT OF ITS ARGUMENT THAT THIS CASE DOES NOT INVOLVE A
"TAX" WITHIN THE MEANING OF 7421(A), PETITIONER CITES SUCH CASES AS
HILL V. WALLACE, 259 U.S. 44 (1922) (TAX ON UNREGULATED SALES OF
COMMODITIES FUTURES), AND LIPKE V. LEDERER, 259 U.S. 557 (1922) (TAX ON
UNLAWFUL SALES OF LIQUOR).  IT IS TRUE THAT THE COURT IN THOSE CASES
DREW WHAT IT SAW AT THE TIME AS DISTINCTIONS BETWEEN REGULATORY AND
REVENUE-RAISING TAXES.  BUT THE COURT HAS SUBSEQUENTLY ABANDONED SUCH
DISTINCTIONS.  E.G., SONZINSKY V. UNITED STATES, 300 U.S. 506, 513
(1937).  EVEN IF SUCH DISTINCTIONS HAVE MERIT, IT WOULD NOT ASSIST
PETITIONER, SINCE HIS CHALLENGE IS AIMED AT THE IMPOSITION OF FEDERAL
INCOME, FICA, AND FUTA TAXES WHICH CLEARLY ARE INTENDED TO RAISE
REVENUE. 

/13/  THE CURRENTLY PREVAILING RULING-LETTER PROGRAM OF THE SERVICE
COMMENCED IN 1940, SEE CAPLIN, TAXPAYER RULINGS POLICY OF THE INTERNAL
REVENUE SERVICE:  A STATEMENT OF PRINCIPLES, NYU 20TH INST.  ON FED.
TAX 1, 2, 4 - 5 (1962), ALTHOUGH ITS FORMAL ANNOUNCEMENT DID NOT TAKE
PLACE UNTIL 1953.  REV. RUL. 10, 1953 - 1 CUM. BULL.  488. 

/14/  THE MOST RECENT RE-ENACTMENT, IN THE INTERNAL REVENUE CODE OF
1954, POSTDATES BOTH THE ACTUAL AND THE FORMAL COMMENCEMENT OF THE
SERVICE'S RULING LETTER PROGRAM FOR 501(C)(3) ORGANIZATIONS.  SEE N.
13, SUPRA. 

/15/  IN ADDITION TO REPEATEDLY RE-ENACTING THE ANTI-INJUNCTION ACT,
CONGRESS AFFIRMED THE ACT'S PURPOSE BY ADDING THE FEDERAL TAX EXCEPTION
TO THE DECLARATORY JUDGMENT ACT.  SEE N. 7, SUPRA.    /16/  THE ANTI
INJUNCTION ACT WAS WRITTEN AGAINST THE BACKGROUND OF GENERAL EQUITABLE
PRINCIPLES DISFAVORING THE ISSUANCE OF FEDERAL INJUNCTIONS AGAINST
TAXES, ABSENT CLEAR PROOF THAT AVAILABLE REMEDIES AT LAW WERE
INADEQUATE.  E.G., DOWS V. CITY OF CHICAGO, 11 WALL.  108, 109 - 110
(1871); SHELTON V. PLATT, 139 U.S. 591 (1891); PITTSBURGH & C.R. CO. V.
BD. OF PUB. WORKS, 172 U.S. 32 (1898).  SEE CALIFORNIA V. LATIMER, 305
U.S. 255, 261 - 262 (1938) (BRANDEIS, J., FOR A UNANIMOUS COURT):
"(THE DELAY INHERENT IN PURSUING REMEDIES AT LAW), IT IS URGED, IS A
SPECIAL CIRCUMSTANCE WHICH JUSTIFIES RESORT TO A SUIT FOR AN INJUNCTION
IN ORDER THAT THE QUESTION OF LIABILITY MAY BE PROMPTLY DETERMINED.  IF
THE DELAY INCIDENT TO SUCH PROCEEDINGS JUSTIFIED REFUSAL TO PAY A TAX,
THE FEDERAL RULE THAT A SUIT IN EQUITY WILL NOT LIE TO RESTRAIN
COLLECTION ON THE SOLE GROUND THAT THE TAX IS ILLEGAL, COULD HAVE
LITTLE APPLICATION.  FOR POSSIBLE DELAY OF THAT CHARACTER IS THE COMMON
INCIDENT OF PRACTICALLY EVERY CONTEST OVER THE VALIDITY OF A FEDERAL
TAX."  (FOOTNOTE OMITTED.) 

SINCE EQUITABLE PRINCIPLES MILITATING AGAINST THE ISSUANCE OF
FEDERAL INJUNCTIONS IN TAX CASES IXISTED INDEPENDENTLY OF THE ANTI
INJUNCTION ACT, IT IS MOST UNLIKELY THAT CONGRESS WOULD HAVE CHOSEN THE
STRINGENT LANGUAGE OF THE ACT IF ITS PURPOSE WAS MERELY TO RESTATE
EXISTING LAW AND NOT TO COMPEL LITIGANTS TO MAKE USE SOLELY OF THE
AVENUES OF REVIEW OPENED BY CONGRESS.  FOR THIS REASON, IT IS NOT
SURPRISING THAT THE EARLY CASES INTERPRETING THE ACT READ IT AT FACE
VALUE. 

/17/  AS NOTED EARLIER, THE COURT HAS ALSO ABANDONED THE VIEW THAT
BRIGHT-LINE DISTINCTIONS EXIST BETWEEN REGULATORY AND REVENUE-RAISING
TAXES.  SEE N. 12, SUPRA. 

/18/  GOROVITZ, FEDERAL TAX INJUNCTIONS AND THE STANDARD NUT CASES,
10 TAXES 446 (1932).  MR. JUSTICE STONE, JOINED IN DISSENT BY MR.
JUSTICE GRANDEIS, UNDERLINED THE TENSION BETWEEN STANDARD NUT AND PRIOR
PRECEDENT:  "ENACTED IN 1867, (THE ANTI-INJUNCTION ACT), FOR MORE THAN
SIXTY YEARS, HAS BEEN CONSISTENTLY APPLIED AS PRECLUDING RELIEF,
WHATEVER THE EQUITIES ALLEGED."  284 U.S. 498, 511. 

/19/  E.G., LENOIR, CONGRESSIONAL CONTROL OVER SUITS TO RESTRAIN THE
ASSESSMENT OR COLLECTION OF FEDERAL TAXES, 3 ARIZ. L. REV. 177, 195
(1961).  "IN EFFECT (STANDARD NUT) SAYS THAT IF SPECIAL CIRCUMSTANCES
EXIST WHICH BRING THE CASE WITHIN SOME ACKNOWLEDGED HEAD OF EQUITY
JURISDICTION, (THE ANTI-INJUNCTION ACT) DOES NOT APPLY, AND THE COURT
MAY ISSUE AN INJUNCTION.  BUT IN THE ABSENCE OF SUCH CIRCUMSTANCES THE
COURT WILL LACK EQUITY JURISDICTION BECAUSE THERE WILL BE NO BASIS FOR
SUCH JURISDICTION.  TO SAY THAT (THE ACT) APPLIES ONLY IN SUCH CASES
SEEMS A LITTLE ABSURD.  IT IS TANTAMOUNT TO SAYING THAT (THE ACT)
FORBIDS THE COURTS TO ISSUE INJUNCTIONS ONLY WHEN THEY WOULD NOT HAVE
THE AUTHORITY TO ISSUE THEM ANYWAY]  IT DENIES ANY FORCE WHATEVER TO
(THE ACT) EXCEPT AS DELARATORY OF AN EQUITABLE RULE PREVIOUSLY FOLLOWED
BY THE COURTS." 

/20/  SEE DODGE V. OSBORN, 240 U.S. 118, 122 (1916): 

"THERE IS A CONTENTION THAT THE PROVISIONS REQUIRING AN APPEAL TO
THE COMMISSIONER OF INTERNAL REVENUE AFTER PAYMENT OF THE TAXES AND
GIVING A RIGHT TO SUE IN CASE OF HIS REFUSAL TO REFUND ARE WANTING IN
DUE PROCESS AND THEREFORE THERE IS JURISDICTION (TO ISSUE INJUNCTIVE
RELIEF PRIOR TO THE ASSESSMENT OR COLLECTION OF ANY TAX).  BUT WE THINK
IT SUFFICES TO STATE THAT CONTENTION TO DEMONSTRATE ITS ENTIRE WANT OF
MERIT." 

/21/  BECAUSE OF THE AVAILABILITY OF FICA AND FUTA REFUND ACTIONS,
WE NEED NOT ADDRESS THE ADEQUACT OF ANOTHER POSSIBLE MEANS OF SEEKING
POSTENFORCEMENT JUDICIAL REVIEW--THE "FRIENDLY DONOR"  REFUND SUIT. 
UNDER THIS APPROACH, THERE MUST BE A DONOR WILLING TO FILE A REFUND
ACTION CLAIMING A 170 (C)(2) CHARITABLE DEDUCTION FOR A CONTRIBUTION TO
AN ORGANIZATION AFTER THE SERVICE HAS REVOKED THE ORGANIZATION'S RULING
LETTER AND WITHDRAWN ADVANCE ASSURANCE OF DEDUCTIBILITY.  TO UTILIZE
THIS APPROACH, THE ORGANIZATION MUST FIRST BE ABLE TO FIND A DONOW
WILLING TO SUBJECT HIMSELF TO THE RIGORS OF LITIGATION AGAINST THE
SERVICE AND THEN MUST RELY ON THE DONOR TO PRESENT THE RELEVANT
ARGUMENTS ON THE ORGANIZATION'S BEHALF.  THESE AND OTHER POSSIBLE
DIFFERENCES BETWEEN A DONOR REFUND SUIT AND AN ACTION BROUGHT DIRECTLY
BY AN ORGANIZATION LEAVE OPEN THE QUESTION WHETHER A DONOR'S REFUND
FUIT CONSTITUTES AN ADEQUATE LEGAL REMEDY FOR CORRECTING ILLEGAL
ACTIONS ON THE PART OF THE SERVICE.  WE RESERVE THIS QUESTION FOR A
CASE THAT TURNS UPON ITS RESOLUTION. 

/22/  PETITIONER DID NOT BRING THIS CASE AS A REFUND ACTION. 
ACCORDINGLY, WE HAVE NO OCCASSION TO DECIDE WHETHER THE SERVICE IS
CORRECT IN ASSERTING THAT A DISTRICT COURT MAY NOT ISSUE AN INJUNCTION
IN SUCH A SUIT, BUT IS RESTRICTED IN ANY TAX CASE TO THE ISSUANCE OF
MONEY JUDGMENTS AGAINST THE UNITED STATES.  BRIEF FOR RESPONDENTS 37 N.
35.  WE NOTE, HOWEVER, THAT THE SERVICE'S POSITION WITH REGARD TO THE
RANGE OF RELIEF AVAILABLE IN A REFUND SUIT RAISES SEVERAL
CONSIDERATIONS NOT PRESENTED BY A PRE-ENFORCEMENT SUIT FOR AN
INJUNCTION.  FOR EXAMPLE, IT MAY BE POSSIBLE TO CONCLUDE THAT A SUIT
FOR A REFUND IS NOT "FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR
COLLECTION OF ANY TAX . . . ," AND THUS THAT NEITHER THE LITERAL TERMS
NOR THE PRINCIPAL PURPOSE OF 7421(A) IS APPLICABLE.  MOREOVER, SUCH A
SUIT OBVIOUSLY DOES NOT CLASH WITH WHAT THE COURT REFERRED TO IN
WILLIAMS PACKING, SUPRA, AS A "COLLATERAL OBJECTIVE OF THE ACT-
PROTECTION OF THE COLLECTOR FROM LITIGATION PENDING A SUIT FOR
REFUND."  370 U.S., AT 7 - 8.  AND THERE WOULD BE SERIOUS QUESTION
ABOUT THE REASONABLENESS OF A SYSTEM THAT FORCED A 501(C)(3)
ORGANIZATION TO BRING A SERIES OF BACKWARD-LOOKING REFUND SUITS IN
ORDER TO ESTABLISH REPEATEDLY THE LEGALITY OF ITS CLAIM TO TAX-EXEMPT
STATUS AND THAT PRECLUDED SUCH AN ORGANIZATION FROM OBTAINING
PROSPECTIVE RELIEF EVEN THOUGH IT UTILIZED AN AVENUE OF REVIEW MANDATED
BY CONGRESS. 

THE SERVICE INDICATES THAT "ITS NORMAL PRACTICE IS TO ISSUE A
FAVORABLE RULING UPON THE APPLICATION OF AN ORGANIZATION WHICH HAS
PREVAILED IN A COURT SUIT."  BRIEF FOR RESPONDENTS 35 N. 31, WHEN THE
SERVICE ADHERES TO THAT POSITION FOLLOWING A REFUND SUIT DECIDED IN
FAVOR OF THE PLAINTIFF, THERE IS OF COURSE LITTLE LIKELIHOOD THAT
INJUNCTIVE RELIEF WOULD BE NECESSARY OR APPROPRIATE.  BUT OUR DECISION
TODAY THAT 7421(A) BARS PRE-ENFORCEMENT INJUNCTIVE SUITS BY
ORGANIZATIONS CLAIMING 501(C)(3) STATUS UNLESS THE STANDARDS OF
WILLIAMS PACKING ARE MET SHOULD NOT BE INTERPRETED AS DECIDING WHETHER
INJUNCTIVE RELIEF IS POSSIBLE IN A REFUND SUIT IN A DISTRICT COURT. 

/23/  SEE THROWER, IRS IS CONSIDERING FAR REACHING CHANGES IN RULING
ON EXEMPT ORGANIZATIONS, 34 J. TAXATION 168 (1971): 

"THERE IS NO PRACTICAL POSSIBILITY OF QUICK JUDICIAL APPEAL AT THE
PRESENT.  IF WE DENY TAX EXEMPTION OR THE BENEFIT TO THE ORGANIZATION
OF ITS DONORS HAVING THE ASSURANCE OF DEDUCTIBILITY OF CONTRIBUTIONS,
THE ORGANIZATION MUST EITHER CREATE NET TAXABLE INCOME OR OTHER TAX
LIBILITY FOR ITSELF AS A LITIGABLE ISSUE, OR FIND A DONOR WHO AS A
GUINEA PIG IS WILLING TO MAKE A CONTRIBUTION, HAVE IT DISALLOWED, AND
LITIGATE THE DISALLOWANCE.  ASSUMING THE READINESS OF THE ORGANIZATION
OR DONOR TO LITIGATE, THE ISSUE UNDER THE BEST OF CIRCUMSTANCES COULD
HARDLY COME BEFORE A COURT UNTIL AT LEAST A YEAR AFTER THE TAX YEAR IN
WHICH THE ISSUE ARISES.  ORDINARILY, IT WOULD TAKE MUCH LONGER THE
ORGANIZATION'S STATUS TO BE TRIED . . . WHILE ALL OF THIS TIME IS
PASSING, THE ORGANIZATION IS DORMANT FOR LACK OF CONTRIBUTIONS AND
THOSE OTHERWISE INTERESTED IN ITS PROGRAM LOSE THEIR INTEREST AND MOVE
ON TO OTHER ORGANIZATIONS BLESSED WITH THE INTERNAL REVENUE SERVICE
IMPRIMATUR; AND THE RIGHT TO JUDICIAL REVIEW IS NOT PURSUED. 

"THIS IS AN EXTREMELY UNFORTUNATE SITUATION FOR SEVERAL REASONS. 
FIRST, IT OFFENDS MY SENSE OF JUSTICE FOR UNDUE DELY TO BE IMPOSED ON
ONE WHO NEEDS A PROMPT DECISION.  SECOND, IN PRACTICAL EFFECT IT GIVES
A GREATER FINALITY TO IRS DECISIONS THAN WE WOULD WANT OR CONGRESS
INTENDED.  THIRD, IT INHIBITS THE GROWTH OF A BODY OF CASE LAW
INTERPRETATIVE OF THE EXEMPT ORGANIZATION PROVISIONS THAT COULD GUIDE
THE IRS IN ITS FURTHER DELIBERATIONS." 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE BLACKMUN, CONCURRING IN THE RESULT.  I CONCUR IN THE
COURT'S JUDGMENT AND AGREE WITH MUCH OF THE REASONING IN ITS OPINION
FOR THIS CASE.  AS THE COURT NOTES, ANTE, AT 738, THE UNIVERSITY'S
OBTAINING AN INJUNCTION WOULD DIRECTLY PREVENT THE COLLECTION OF WHAT
IT SAYS ARE $750,000 IN INCOME TAXES FOR 1971 AND OF OVER $500,000 FOR
1972.  ON THE BASIS OF THIS FACT ALONE, THE "PURPOSE" OF THE SUIT IS
INDEED TO RESTRAIN "THE ASSESSMENT OR COLLECTION OF A TAX," AND BRINGS
26 U.S.C. 7421 (A) INTO PLAY.  U.S.C. 7421 (A) INTO PLAY. 

SINCE THE ANTI-INJUNCTION STATUTE IS APPLICABLE, WE MUST CONSIDER
WHETHER THE UNIVERSITY COMES WITHIN THE STATUTE'S EXCEPTION RECOGNIZED
IN ENOCHS V. WILLIAMS PACKING & NAVIGATION CO., 370 U.S. 1 (1962).  AS
TO THIS, I JOIN PART IV OF THE COURT'S OPINION TO THE EFFECT THAT IT
HAS NOT BEEN SHOWN T8AT "UNDER NO CIRCUMSTANCES COULD THE GOVERNMENT
ULTIMATELY PREVAIL."  "ID., AT 7. 

J.D. TODD, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE WESLEY M. WALKER AND OSCAR JACKSON TAYLOR, JR. 

ASSISTANT ATTORNEY GENERAL CRAMPTON ARGUED THE CAUSE FOR
RESPONDENTS.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, STUART
A. SMITH, GRANT W. WIPRUD, AND LEONARD J. HENZKE, JR.
..END :


















ALEXANDER V. "AMERICANS UNITED" INC., 416 U.S. 752 


       ALEXANDER, COMMISSIONER OF INTERNAL REVENUE V. "AMERICANS

           UNITED" INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 72 - 1371.  ARGUED JANUARY 7, 1974--DECIDED MAY 15,

           1974; (155 U.S. APP. D.C. 284, 477 F.2D 1169,

           REVERSED.) 


    RESPONDENT, A NONPROFIT CORPORATION, HAD A RULING LETTER

  ASSURING IT OF TAX-EXEMPT STATUS UNDER 501(C)(3) OF THE INTERNAL

  REVENUE CODE OF 1954 (CODE).  THE INTERNAL REVENUE SERVICE (IRS)

  REVOKED THE RULING LETTER ON THE GROUND THAT RESPONDENT HAD

  VIOLATED THE LOBBYING PROSCRIPTIONS OF 501(C)(3) AND 170 OF THE

  CODE, THE EFFECT OF WHICH WAS TO RENDER IT LIABLE FOR FEDERAL

  UNEMPLOYMENT TAXES AND TO TERMINATE ITS ELIGIBILITY FOR

  TAX-DEDUCTIBLE CONTRIBUTIONS.  RESPONDENT AND TWO OF ITS

  BENEFACTORS BROUGHT THIS ACTION SEEKING A DECLARATORY JUDGMENT

  THAT THE IRS'  ADMINISTRATION OF THE LOBBYING PROVISIONS OF 501

  (C) (3).  AND 170 WAS ERRONEOUS OR UNCONSTITUTIONAL AND
INJUNCTIVE

  RELIEF REQUIRING REINSTATEMENT OF ITS 501 (C)(3) TAX-EXEMPT

  STATUS.  THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE

  GROUND, INTER ALIA, THAT THE ACTION WAS BARRED BY THE PROHIBITION

  IN 7421(A) OF THE CODE AGAINST SUITS "FOR THE PURPOSE OF

  RESTRAINING THE ASSESSMENT OR COLLECTION OF ANY TAX."  THE COURT

  OF APPEALS AGREED THAT THE ACTION COULD NOT BE MAINTAINED BY THE

  BENEFACTORS BUT HELD THAT RESPONDENT'S SUIT WAS NOT BARRED ON THE

  GROUNDS THAT RESPONDENT RAISED CONSTITUTIONAL ALLEGATIONS; THAT

THE PRIMARY DESIGN OF THE SUIT WAS NOT TO ENJOIN THE ASSESSMENT

  OR COLLECTION OF RESPONDENT'S OWN TAXES; THAT RESTRAINING THE

  ASSESSMENT OR COLLECTION OF THE TAXES OF RESPONDENT'S

  CONTRIBUTORS WAS ONLY A "COLLATERAL EFFECT" OF THIS SUIT; AND

  THAT IN THE ABSENCE OF INJUNCTIVE RELIEF RESPONDENT WOULD SUSTAIN

  IRREPARABLE INJURY FOR WHICH THERE WAS NO ADEQUATE LEGAL REMEDY. 

  THE COURT CONSEQUENTLY AFFIRMED THE DISMISSAL AS TO THE

  BENEFACTORS BUT REVERSED AS TO RESPONDENT.  HELD:  THE ACTION IS

  BARRED BY 7421(A).  ENOCHS V. WILLIAMS PACKING & NAVIGATION CO.,

  370 U.S. 1; BOB JONES UNIVERSITY V. SIMON, ANTE, P. 725.  PP. 758

 - 763. 

     (A) THE CONSTITUTIONAL NATURE OF A TAXPAYER'S CLAIM, AS

  DISTINCT FROM ITS PROBABILITY OF SUCCESS, IS OF NO CONSEQUENCE

  UNDER 7421(A).  PP. 759 - 760. 

     (B) THAT RESPONDENT WAS NOT SEEKING TO ENJOIN THE ASSESSMENT
OR

  COLLECTION OF ITS OWN TAXES IS IRRELEVANT, FOR 7421(A) BARS A

  SUIT TO ENJOIN THE ASSESSMENT OR COLLECTION OF ANYONE'S TAXES. 

  ##HC753 P. 760. 

     (C) UNDER ANY REASONABLE CONSTRUCTION OF THE STATUTORY TERM

  "PURPOSE," THE OBJECTIVE OF THIS ACTION WAS TO RESTRIAN THE

ASSESSMENT AND COLLECTION OF TAXES FROM RESPONDENT'S

  CONTRIBUTORS, THE PURPOSE BEING TO RESTORE ADVANCE ASSURANCE THAT

  DONATIONS TO RESPONDENT WOULD QUALIFY AS CHARITABLE DEDUCTIONS

  FOR RESPONDENT'S DONORS.  PP. 760 - 761. 

  (D) AN ACTION FOR REFUND OF UNEMPLOYMENT TAXES, EVEN IF

  SUCCESSFUL, WILL NOT LEAD TO THE RECOVERY OF CONTRIBUTIONS LOST

  IN THE INTERIM BETWEEN WITHDRAWAL OF A 501(C)(3) RULING LETTER

  AND THE FINAL ADJUDICATION OF ENTITLEMENT TO 501(C)(3) STATUS. 

  THIS IS, HOWEVER, MERELY A FORM OF IRREPARABLE INJURY, WHICH IN

  ITSELF IS INSUFFICIENT TO AVOID THE BAR OF 7421(A).  PP. 761 -

  762. 

     (E) AN ACTION FOR REFUND OF UNEMPLOYMENT TAXES WILL AFFORD

  RESPONDENT A FULL OPPORTUNITY TO LITIGATE THE LEGALITY OF THE

  IRS'  WITHDRAWAL OF ITS 501(C)(3) RULING LETTER, SINCE

 RESPONDENT'S LIABILITY FOR SUCH TAXES HINGES ON PRECISELY THE

  SAME LEGAL ISSUE AS DOES ITS ELIGIBILITY FOR TAX-DEDUCTIBLE

  CONTRIBUTIONS UNDER 170, I.E., ITS ENTITLEMENT TO 501(C)(3)

  STATUS.  P. 762. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, AND

  REHNQUIST, JJ., JOINED.  BLACKMUN, J., FILED A DISSENTING

  OPINION, POST, P. 763.  DOUGLAS, J., TOOK NO PART IN THE DECISION

  OF THE CASE. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

RESPONDENT IS A NONPROFIT, EDUCATIONAL CORPORATION ORGANIZED UNDER THE
LAWS OF THE DISTRICT OF COLUMBIA AS "PROTESTANTS AND OTHER AMERICANS
UNITED FOR SEPARATION OF CHURCH AND STATE."  ITS PURPOSE IS TO DEFEND
AND MAINTAIN RELIGIOUS LIBERTY IN THE UNITED STATES BY THE
DISSEMINATION OF KNOWLEDGE CONCERNING THE CONSTITUTIONAL PRINCIPLE OF
THE SEPARATION OF CHURCH AND STATE.  IN 1950, THE INTERNAL REVENUE
SERVICE ISSUED A RULING LETTER THAT RESPONDENT QUALIFIED AS A TAX
EXEMPT ORGANIZATION UNDER THE PREDECESSOR PROVISION TO 501(C)(3) OF THE
INTERNAL REVENUE CODE OF 1954 (THE CODE), 26 U.S.C. 501(C) (3).  /1/
AS A RESULT, THE SERVICE TREATED CONTRIBUTIONS TO RESPONDENT AS
CHARITABLE DEDUCTIONS UNDER THE PREDECESSOR PROVISION OF 170(C)(2) OF
THE CODE, 26 U.S.C. 170 (C)(2).  /2/  THIS SITUATION CONTINUED
UNCHANGED UNTIL APRIL 25, 1969, WHEN THE SERVICE ISSUED A RULING LETTER
REVOKING THE 1950 RULING ON THE GROUND THAT RESPONDENT HAD VIOLATED
501(C)(3) AND 170 (C)(2)(D) BY DEVOTING A SUBSTANTIAL PART OF ITS
ACTIVITIES TO ATTEMPTS TO INFLUENCE LEGISLATION.  SHORTLY THEREAFTER,
THE SERVICE ISSUED ANOTHER RULING LETTER EXEMPTING RESPONDENT FROM
INCOME TAXATION AS A "SOCIAL WELFARE" ORGANIZATION UNDER CODE 501
(C)(4), 26 U.S.C. 501(C)(4).  /3/  THE EFFECT OF THIS CHANGE IN STATUS
WAS TO RENDER RESPONDENT LIABLE FOR UNEMPLOYMENT (FUTA) TAXES UNDER
CODE 3301, 26 U.S.C. 3301, /4/  AND TO DESTROY ITS ELIGIBILITY FOR TAX
DEDUCTIBLE CONTRIBUTIONS UNDER 170. 

BECAUSE THE 1969 RULING LETTER CAUSE A SUBSTANTIAL DECREASE IN ITS
CONTRIBUTIONS, RESPONDENT AND TWO OF ITS BENEFACTORS INITIATED THE
INSTANT ACTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA ON JULY 30, 1972.  /5/  THEY SOUGHT A DECLARATORY JUDGMENT
THAT THE SERVICE'S ADMINISTRATION OF THE LOBBYING PROSCRIPTIONS OF
501(C)(3) AND 170 WAS ERRONEOUS OR UNCONSTITUTIONAL /6/  AND INJUNCTIVE
RELIEF REQUIRING REINSTATEMENT OF RESPONDENT'S 501(C)(3) RULING
LETTER.  BECAUSE THEIR OBJECTIONS TO THE SERVICE'S ACTION INCLUDED A
FACIAL CHALLENGE TO THE CONSTITUTIONALITY OF FEDERAL STATUTES, /7/
THEY ALSO REQUESTED THE CONVENING OF A THREE-JUDGE DISTRICT COURT
PURSUANT TO 28 U.S.C. 2282. 

THE SERVICE MOVED TO DISMISS THE ACTION, PRINCIPALLY ON THE GROUND
THAT THE EXCEPTION IN THE DECLARATORY JUDGMENT ACT FOR CASES "WITH
RESPECT TO FEDERAL TAXES,"  /8/  AND THE PROHIBITION IN THE ANTI
INJUNCTION ACT AGAINST SUITS "FOR THE PURPOSE OF RESTRAINING THE
ASSESSMENT OR COLLECTION OF ANY TAX,"  /9/  OUSTED THE COURT OF SUBJECT
MATTER JURISDICTION.  THE DISTRICT COURT ACCEPTED THIS ARGUMENT,
REFUSED TO CONVENE A THREE-JUDGE COURT, AND DISMISSED THE COMPLAINT IN
AN UNPUBLISHED ORDER FILED MARCH 9, 1971.  THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED THE DISMISSAL
INSOFAR AS IT PERTAINED TO THE INDIVIDUAL PLAINTIFFS, BUT IT REVERSED
AS TO RESPONDENT AND REMANDED THE CASE TO THE DISTRICT COURT WITH
INSTRUCTIONS TO CONVENE A THREE-JUDGE COURT.  "AMERICANS UNITED" INC.
V. WALTERS, 155 U.S. APP. D.C. 284, 477 F.2D 1169 (1973).  THE SERVICE
PETITIONED FOR REVIEW, AND WE GRANTED CERTIORARI.  412 U.S. 927
(1973).  WE REVERSE. 

IN OUR OPINION IN BOB JONES UNIVERSITY V. SIMON, ANTE, P. 725, WE
EXAMINED THE MEANING OF THE ANTI-INJUNCTION ACT AND ITS INTERPRETATION
IN PRIOR OPINIONS OF THIS COURT, AND WE REAFFIRMED OUR ADHERENCE TO THE
TWO-PART TEST ANNOUNDED IN ENOCHS V. WILLIAMS PACKING & NAVIGATION CO.,
370 U.S. 1 (1962).  TO REITERATE, THE COURT IN WILLIAMS PACKING
UNANIMOUSLY HELD THAT A PRE-ENFORCEMENT INJUNCTION AGAINST THE
ASSESSMENT OR COLLECTION OF TAXES MAY BE GRANTED ONLY (I) "IF IT IS
CLEAR THAT UNDER NO CIRCUMSTANCES COULD THE GOVERNMENT ULTIMATELY
PREVAIL . . . ,"  ID., AT 7 AND (II) "IF EQUITY JURISDICTION OTHERWISE
EXISTS."  IBID.  UNLESS BOTH CONDITIONS ARE MET, A SUIT FOR PREVENTIVE
INJUNCTIVE RELIEF MUST BE DISMISSED. 

IN THE INSTANT CASE THE COURT OF APPEALS RECOGNIZED WILLIAMS PACKING
AS CONTROLLING PRECEDENT FOR RESPONDENT'S INDIVIDUAL COPLAINTIFFS AND
AFFIRMED THE DISMISSAL OF THE SUIT AS TO THEM.  155 U.S. APP. D.C., AT
292, 477 F.2D, AT 1177.  THE COURT HELD THAT THE RELIEF REQUESTED BY
THE INDIVIDUAL PLAINTIFFS "RELATED) DIRECTLY TO THE ASSESSMENT AND
COLLECTION OF TAXES" AND THAT THE ALLEGATIONS OF INFRINGEMENTS OF
CONSTITUTIONAL RIGHTS WERE "TO NO AVAIL"  IN OVERCOMING THE BARRIER OF
7421(A).  ID., AT 291, 477 F.2D, AT 1176.  THE COURT ALSO RECOGNIZED
THAT RESPONDENT COULD NOT SATISFY THE WILLIAMS PACKING CRITERIA, ID.,
AT 298, 477 R.2D, AT 1183, BUT CONCLUDED THAT RESPONDENT'S SUIT WAS
WITHOUT TH SCOPE OF THE ANTI-INJUNCTION ACT AND THEREFORE NOT SUBJECT
TO THE WILLIAMS PACKING TEST.  /10/ 

THE COURT'S CONCLUSION WITH REGARD TO RESPONDENT RESTED ON THE
CONFLUENCE OF SEVERAL FACTORS.  ONE WAS THE CONSTITUTIONAL NATURE OF
RESPONDENT'S CLAIMS.  AS THE COURT NOTED, THE THRUST OF RESPONDENT'S
ARGUMENT IS NOT THAT IT QUALIFIES FOR A 501(C)(3) EXEMPTION UNDER
EXISTING LAW BUT RATHER THAT THAT PROVISION'S "SUBSTANTIAL PART" TEST
AND PROSCRIPTION AGAINST EFFORTS TO INFLUENCE LEGISLATION ARE
UNCONSTITUTIONAL.  ID., AT 293, 477 F.2D, AT 1178.  OBVIOUSLY, THIS
OBSERVATION COULD NOT HAVE BEEN DISPOSITIVE TO THE COURT OF APPEALS,
FOR THIS FACTOR DOES NOT DIFFERENTIATE RESPONDENT, WHICH WAS ALLOWED TO
SUE, FROM THE INDIVIDUAL COPLAINTIFFS, WHO LIKEWISE PRESSED
CONSTITUTIONAL CLAIMS BUT WHO WERE DISMISSED FROM THE ACTION. 
FURTHERMORE, DECISIONS OF THIS COURT MAKE IT UNMISTAKABLE CLEAR THAT
THE CONSTITUTIONAL NATURE OF A TAXPAYER'S CLAIM, AS DISTINCT FROM ITS
PROBABILITY OF SUCCESS, IS OF NO CONSEQUENCE UNDER THE ANTI-INJUNCTION
ACT.  E. G., BAILEY V. GEORGE, 259 U.S. 16 (1922); DODGE V. OSBORN, 240
U.S. 118 (1916). 

THE OTHER THREE FACTORS IDENTIFIED BY THE COURT OF APPEALS ARE
EQUALLY UNPERSUASIVE.  FIRST, THE COURT NOTED THAT RESPONDENT "DOES NOT
SEEK IN THIS LAWSUIT TO ENJOIN THE ASSESSMENT OR COLLECTION OF ITS OWN
TAXES."  155 U.S. APP. D.C., AT 292, 477 F.2D, AT 1177.  BECAUSE
RESPONDENT VOLUNTEERED TO PAY FUTA TAXES EVEN IF IT OBTAINED AN
INJUNCTION RESTORING ITS 501 (C)(3) STATUS, THIS OBSERVATION, WE MAY
ASSUME, IS CORRECT.  IT IS ALSO IRRELEVANT.  SECTION 7421(A) DOES NOT
BAR MERELY A TAXPAYER'S ATTEMPT TO ENJOIN THE COLLECTION OF ITS OWN
TAXES.  RATHER, IT DECLARES IN SWEEPING TERMS THAT "NO SUIT FOR THE
PURPOSE OF RESTRAINING THE ASSESSMENT OR COLLECTION OF ANY TAX SHALL BE
MAINTAINED IN ANY COURT BY ANY PERSON, WHETHER OR NOT SUCH PERSON IS
THE PERSON AGAINST WHOM SUCH TAX WAS ASSESSED."  /11/  THUS A SUIT TO
ENJOIN THE ASSESSMENT OR COLLECTION OF ANYONE'S TAXES TRIGGERS THE
LITERAL TERMS OF 7421(A). 

PERHAPS THE REAL POINT OF THE COURT'S OBSERVATION ABOUT RESPONDENT'S
TAXES WAS TO SET THE STAGE FOR ITS MORE PERTINENT CONCLUSION THAT
RESTRAINING THE ASSESSMENT OR COLLECTION OF TAXES WAS "AT BEST A
COLLATERAL EFFECT" OF RESPONDENT'S ACTION AND THAT THIS SUIT AROSE "IN
A POSTURE REMOVED FROM A RESTRAINT ON ASSESSMENT OR COLLECTION."  155
U.S. APP. D.C., AT 294, 477 F.2D, AT 1179.  WE DISAGREE.  UNDER ANY
REASONABLE CONSTRUCTION OF THE STATUTORY TERM "PURPOSE," THE OBJECTIVE
OF THIS SUIT WAS TO RESTRAIN THE ASSESSMENT AND COLLECTION OF TAXES
FROM RESPONDENT'S CONTRIBUTORS.  THE OBVIOUS PURPOSE OF RESPONDENT'S
ACTION WAS TO RESTORE ADVANCE ASSURANCE THAT DONATIONS TO IT WOULD
QUALIFY AS CHARITABLE DEDUCTIONS UNDER 170 THAT WOULD REDUCE THE LEVEL
OF TAXES OF ITS DONORS.  /12/  INDEED, RESPONDENT WOULD NOT BE
INTERESTED IN OBTAINING THE DECLARATORY AND INJUNCTIVE RELIEF REQUESTED
IF THAT RELIEF DID NOT EFFECTIVELY RESTRAIN THE TAXATION OF ITS
CONTRIBUTORS.  THUS WE THINK IT CIRCULAR TO CONCLUDE, AS DID THE COURT
OF APPEALS, THAT RESPONDENT'S "PRIMARY DESIGN" WAS NOT "TO REMOVE THE
BURDEN OF TAXATION FROM THOSE PRESENTLY CONTRIBUTING BUT RATHER TO
AVOID THE DISPOSITION OF CONTRIBUTED FUNDS AWAY FROM THE CORPORATION." 
IBID.  THE LATTER GOAL IS MERELY A RESTATEMENT OF THE FORMER AND CAN BE
ACCOMPLISHED ONLY BY RESTRAINING THE ASSESSMENT AND COLLECTION OF A TAX
IN CONTRAVENTION OF 7421(A). 

FINALLY, THE COURT OF APPEALS EMPHASIZED THAT RESPONDENT HAD NO
"ALTERNATE LEGAL REMEDY IN THE FORM OF ADEQUATE REFUND LITIGATION . . .
."  ID., AT 295, 477 R.2D, AT 1180.  THE COURT RECOGNIZED, OF COURSE,
THAT RESPONDENT DOES HAVE AN OPPORTUNITY TO LITIGATE ITS CLAIMS IN AN
ACTION FOR REFUND OF FUTA TAXES BUT DISMISSED THIS ALTERNATIVE WITH THE
STATEMENT THAT "IT IS SUBJECT TO CERTAIN CONDITIONS AND, WE FEEL, IS SO
FAR REMOVED FROM THE MAINSTREAM OF THE ACTION AND RELIEF SOUGHT AS TO
HARDLY BE CONSIDERED ADEQUATE."  ID., AT 294 N. 13, 477 F.2D, AT 1179
N. 13.  THE IMPORT OF THESE COMMENTS IS UNCLEAR.  IF THEY ARE TAKEN TO
MEAN THAT A REFUND ACTION IS, AS A PRACTICAL MATTER, INADEQUATE TO
AVOID THE DECREASE IN RESPONDENT'S CONTRIBUTIONS FOR THE INTERIM
BETWEEN THE WITHDRAWAL OF 501(C)(3) STATUS AND THE FINAL ADJUDICATION
OF ITS ENTITLEMENT TO THAT EXEMPTION, THEY ARE CERTAINLY ACCURATE. 
THIS, HOWEVER, IS ONLY A STATEMENT OF IRREPARABLE INJURY, WHICH IS THE
ESSENTIAL PREREQUISITE FOR INJUNCTIVE RELIEF UNDER TRADITIONAL
EQUITABLE STANDARDS AND ONLY ONE PART OF THE WILLIAMS PACKING TEST.  AS
NOTED IN BOB JONES, ANTE, AT 745 - 746, ALLOWING INJUNCTIVE RELIEF ON
THE BASIS OF THIS SHOWING ALONE WOULD RENDER 7421(A) QUITE
MEANINGLESS. 

IF, ON THE OTHER HAND, THE COURT'S COMMENTS ABOUT THE INADEQUACY OF
A REFUND ACTION FOR FUTA TAXES ARE INTERPRETED TO MEAN THAT RESPONDENT
LACKS AN OPPORTUNITY TO HAVE ITS CLAIMS FINALLY ADJUDICATED BY A COURT
OF LAW, WE THINK THEY ARE INACCURATE.  RESPONDENT'S LIABILITY FOR FUTA
TAXES HINGES ON PRECOSELY THE SAME LEGAL ISSUE AS DOES ITS ELIGIBILITY
FOR TAX-DEDUCTIBLE CONTRIBUTIONS UNDER 170, NAMELY ITS ENTITLEMENT TO
501 (C)(3) STATUS.  AND RESPONDENT WILL HAVE A FULL OPPORTUNITY TO
LITIGATE THE LEGALITY OF THE SERVICE'S WITHDRAWAL OF RESPONDENT'S 501
(C)(3) RULING LETTER IN A REFUND SUIT FOLLOWING THE PAYMENT OF FUTA
TAXES.  E.G., CHRISTIAN ECHOES NATIONAL MINISTRY, INC. V. UNITED
STATES, 470 F.2D 849 (CA10 1972), CERT. DENIED, 414 U.S. 864 (1973). 
/13/ 

WE THEREFORE CONCLUDE THAT THERE ARE NO VALID REASONS TO DISTINGUISH
THIS CASE FROM WILLIAMS PACKING FOR PURPOSES OF 7421(A) OR TO EXEMPT
RESPONDENT'S SUIT FROM THE DUAL REQUIREMENTS ENUNCIATED IN THAT CASE. 
/14/  THE JUDGMENT IS REVERSED. 

     IT IS SO ORDERED. 

/1/  THE PREDECESSOR PROVISION OF CODE 501(C)(3) WAS 101(6) OF THE
INTERNAL REVENUE CODE OF 1939.  SECTION 501(C)(3) DESCRIBES THE
FOLLOWING AS ORGANIZATIONS EXEMPT FROM FEDERAL INCOME TAXES BY VIRTUE
OF 501(A): 

"CORPORATIONS, AND ANY COMMUNITY CHEST, FUND, OR FOUNDATION,
ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE,
SCIENTIFIC, TESTING FOR PUBLIC SAFETY, LITERARY, OR EDUCATIONAL
PURPOSES, OR FOR THE PREVENTION OF CRUELTY TO CHILDREN OR ANIMALS, NO
PART OF THE NET EARNINGS OF WHICH INURES TO THE BENEFIT OF ANY PRIVATE
SHAREHOLDER OR INDIVIDUAL, NO SUBSTANTIAL PART OF THE ACTIVITIES OF
WHICH IS CARRYING ON PROPAGANDA, OR OTHERWISE ARREMPTING, TO INFLUENCE
LEGISLATION, AND WHICH DOES NOT PARTICIPATE IN, OR INTERVENE IN
(INCLUDING THE PUBLISHING OR DISTRIBUTING OF STATEMENTS), ANY POLITICAL
CAMPAIGN ON BEHALF OF ANY CANDIDATE FOR PUBLIC OFFICE." 

/2/  THE PREDECESSOR PROVISION OF 170(C)(2) OF THE CODE WAS 23(O)(2)
OF THE INTERNAL REVENUE CODE OF 1939.  SECTION 170 (C)(2) DEFINES A
"CHARITABLE CONTRIBUTION" FOR PURPOSES OF 170(A), THE CHARITABLE
DEDUCTION PROVISION, TO MEAN A CONTRIBUTION OR GIFT TO OR FOR THE USE
OF:  "A CORPORATION, TRUST, OR COMMUNITY CHEST, FUND, OR FOUNDATION-- 

"(A) CREATED OR ORGANIZED IN THE UNITED STATES OR IN ANY POSSESSION
THEREOF, OR UNDER THE LAW OF THE UNITED STATES, ANY STATE, THE DISTRICT
OF COLUMBIA, OR ANY POSSESSION OF THE UNITED STATES; 

"(B) ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE,
SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES OR FOR THE PREVENTION OF
CRUELTY TO CHILDREN OR ANIMALS; 

"(C) NO PART OF THE NET EARNINGS OF WHICH INURES TO THE BENEFIT OF
ANY PRIVATE SHAREHOLDER OR INDIVIDUAL; AND 

"(D) NO SUBSTANTIAL PART OF THE ACTIVITIES OF WHICH IS CARRYING ON
PROPAGANDA, OR OTHERWISE ATTEMPTING, TO INFLUENCE LEGISLATION, AND
WHICH DOES NOT PARTICIPATE IN, OR INTERVENE IN (INCLUDING THE
PUBLISHING OR DISTRIBUTING OF STATEMENTS), ANY POLITICAL CAMPAIGN ON
BEHALF OF ANY CANDIDATE FOR PUBLIC OFFICE." 

THE DIFFERENCES BETWEEN THE REQUIREMENTS OF 501(C)(3) AND 170(C)(2)
ARE MINOR AND ARE NOT INVOLVED IN THIS LITIGATION. 

/3/  SECTION 501(C)(4) LISTS THE FOLLOWING ORGANIZATIONS AS
QUALIFYING UNDER THE 50!(A) EXEMPTION FROM FEDERAL INCOME TAXES: 

"CIVIC LEAGUES OR ORGANIZATIONS NOT ORGANIZED FOR PROFIT BUT
OPERATED EXCLUSIVELY FOR THE PROMOTION OF SOCIAL WELFARE, OR LOCAL
ASSOCIATIONS OF EMPLOYEES, THE MEMBERSHIP OF WHICH IS LIMITED TO THE
EMPLOYEES OF A DESIGNATED PERSON OR PERSONS IN A PARTICULAR
MUNICIPALITY, AND THE NET EARNINGS OF WHICH ARE DEVOTED EXCLUSIVELY TO
CHARITABLE, EDUCATIONAL, OR RECREATIONAL PURPOSES." 

/4/  SEE CODE 3306(C)(8), 26 U.S.C. 3306 (C)(8).  RESPONDENT BEGAN
PAYING FUTA TAXES IN FEBRUARY 1970 AND HAS STATED ITS WILLINGNESS TO
CONTINUE TO DO SO IN LIGHT OF ITS RELATIVELY INSUBSTANTIAL LIABILITY
FOR SUCH TAXES.  THE SERVICE REPORTS THAT RESPONDENT PAID $981.13 IN
FUTA TAXES FOR THE YEAR 1969, $1, 052.60 FOR 1970, $889.09 FOR 1971,
AND $1,131.36 FOR 1972.  BRIEF FOR PETITIONER 4 N.2.     ORDINARILY,
RESPONDENT'S SHIFT FROM 501(C)(3) STATUS TO 501 (C)(4) STATUS WOULD
ALSO HAVE MEANT THAT IT WOULD BECOME SUBJECT TO FEDERAL SOCIAL SECURITY
(FICA) TAXES, SINCE 501(C)(3) ORGANIZATIONS ARE EXEMPT FROM SUCH TAXES
BUT 501(C)(4) ORGANIZATIONS ARE NOT.  CODE 3121(B)(8)(B), 26 U.S.C.
3121(B)(8)(B).  THIS DISTINCTION IS NOT INVOLVED HERE, HOWEVER, BECAUSE
RESPONDENT IN PRIOR YEARS VOLUNTARILY ELECTED TO PAY FICA TAXES
ALTHOUGH IT HELD 501(C)(3) STATUS.  THIS ELECTION HAD BEEN IN EFFECT
FOR MORE THAN EIGHT YEARS, WHICH RENDERED RESPONDENT INCAPABLE OF
TERMINATING ITS ELECTION TO PAY FICA TAXES EVEN IF IT HAD RETAINED ITS
501(C)(3) STATUS.  CODE 3121(K)(1)(D), 26 U.S.C. 3!21 (K)(1)(D). 

/5/  FEDERAL JURISDICTION WAS FOUNDED ON 28 U.S.C. 1331 AND 1340 AND
ON 10 OF THE ADMINISTRATIVE PROCEDURE ACT, NOW 5 U.S.C. 701 - 706. 

/6/  THE AMENDED COMPLAINT IDENTIFIED FIVE CLAIMS:  (1) THAT THE
LOBBYING PROSCRIPTIONS OF 501(C)(3) AND 170(C)(2)(D) AND THE SERVICE'S
ADMINISTRATION OF THEM WERE UNCONSTITUTIONAL DUE TO THE RESTRICTIONS
IMPOSED ON THE EXERCISE OF FIRST AMENDMENT RIGHTS OF POLITICAL ADVOCACY
BY RESPONDENT AND ITS CONTRIBUTORS; (2) THAT THE "SUBSTANTIAL PART"
TEST OF THESE PROVISIONS DENIED EQUAL PROTECTION OF THE LAWS IN
CONFLICT WITH THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, BY
ALLOWING LARGE TAX-EXEMPT ORGANIZATIONS TO ENGAGE IN A GREATER QUANTUM
OF LOBBYING ACTIVITY THAN IS ALLOWED TO SMALLER ORGANIZATIONS; (3) THAT
THIS DISPARITY IN THE ABSOLUTE AMOUNTS OF LOBBYING ACTIVITY ALLOWED
LARGE AND SMALL 501(C)(3) ORGANIZATIONS, ENABLED CERTAIN LARGE CHURCHES
TO ENGAGE IN MORE LOBBYING IN FAVOR OF GOVERNMENT AID TO CHURCH SCHOOLS
THAN RESPONDENT COULD BRING TO BEAR IN OPPOSITION, THEREBY VIOLATING
THE PLAINTIFFS' RIGHTS UNDER THE ESTABLISHMENT AND FREE EXERCISE
CLAUSES OF THE FIRST AMENDMENT; (4) THAT THE STATUTORY STANDARDS OF
"SUBSTANTIAL PART" AND "PROPAGANDA"  WERE SO LACKING IN SPECIFICITY
THAT THEY CONSTITUTED AN INVALID DELEGATION OF LEGISLATIVE POWER TO THE
SERVICE; AND (5) THAT THE SERVICE ACTED ARBITRARILY AND CAPRICIOUSLY IN
REVOKING RESPONDENT'S 501 (C)(3) EXEMPTION.  THE LAST TWO CONTENTIONS
APPARENTLY WERE NOT ADVANCED IN THE COURT OF APPEALS.  THERE THE
AUGUMENT CENTERED ON THE "DISCRIMINATORY" ASPECTS OF THE "SUBSTANTIAL
PART" TEST IDENTIFIED ABOVE AS CLAIM (2). 

/7/  SPECIFICALLY, RESPONDENT AND ITS COPLAINTIFFS SOUGHT TO HAVE
THE EXEMPTION CLAUSES OF 501(C)(3) SEVERED FROM THE REMAINDER OF THAT

/8/  THE FEDERAL TAX EXCEPTION TO THE DECLARATORY JUDGMENT ACT
APPEARS IN 28 U.S.C. 2201: 

"IN A CASE OF ACTUAL CONTROVERSY WITHIN ITS JURISDICTION, EXCEPT
WITH RESPECT TO FEDERAL TAXES, ANY COURT OF THE UNITED STATES, UPON THE
FILING OF AN APPROPRIATE PLEADING, MAY DECLARE THE RIGHTS AND OTHER
LEGAL RELATIONS OF ANY INTERESTED PARTY SEEKING SUCH DECLARATION,
WHETHER OR NOT RELIEF IS OR COULD BE SOUGHT.  ANY SUCH DECLARATION
SHALL HAVE THE FORCE AND EFFECT OF A FINAL JUDGMENT OR DECREE AND SHALL
BE REVIEWABLE AS SUCH."  (EMPHASIS ADDED.) 

/9/  THE ANTI-INJUNCTION ACT (INCOME TAX ASSESSMENT) IS SET FORTH IN
CODE 7421(A), 26 U.S.C. 7421(A): 

"EXCEPT AS PROVIDED IN SECTIONS 6212(A) AND (C), 6213(A), AND
7426(A) AND (B)(1), NO SUIT FOR THE PURPOSE OF RESTRAINING THE
ASSESSMENT OR COLLECTION OF ANY TAX SHALL BE MAINTAINED IN ANY COURT BY
ANY PERSON, WHETHER OR NOT SUCH PERSON IS THE PERSON AGAINST WHOM SUCH
TAX WAS ASSESSED."  NONE OF THE EXCEPTIONS IS RELEVANT TO THIS CASE. 

/10/  THE COURT OF APPEALS ALSO HELD THAT THE SCOPE OF THE "EXCEPT
WITH RESPECT TO FEDERAL TAXES" CLAUSE OF THE DECLARATORY JUDGMENT ACT,
SEE N. 8, SUPRA, IS COTERMINOUS WITH THE ANTI-INJUNCTION ACT BAN
AGAINST SUITS "FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR
COLLECTION OF ANY TAX" DESPITE THE BROADER PHRASING OF THE FORMER
PROVISION.  155 U.S. APP. D.C. 284, 291, 477 F.2D 1169, 1176.  WHILE WE
TAKE NO POSITION ON THIS ISSUE, IT IS IN ANY EVENT CLEAR THAT THE
FEDERAL TAX EXCEPTION TO THE DECLARATORY JUDGMENT ACT IS AT LEAST AS
BROAD AS THE PROHIBITION OF THE ANTI-INJUNCTION ACT.  BECAUSE WE HOLD
THAT THE LATTER ACT BARS THE INSTANT SUIT, THERE IS NO OCCASION TO DEAL
SEPARATELY WITH THE FORMER.  SEE BOB JONES UNIVERSITY V. SIMON, ANTE,
AT 732 - 733, N. 7. 

/11/  THE PORTION OF 7421(A) BEGINNING WITH "BY ANY PERSON" WAS
ADDED TO THE ACT IN 1966.  SEE BOB JONES UNIVERSITY V. SIMON, ANTE, AT
731 - 732, N. 6.  AS WE NOTED THERE, HOWEVER, THE "BY THE PERSON"
PHRASE REAFFIRMS THE PLAIN MEANING OF THE ORIGINAL LANGUAGE OF THE
ACT. 

/12/  ALTERNATIVELY, THIS SUIT WAS INTENDED TO REASSURE PRIVATE
FOUNDATIONS THAT THEY COULD MAKE CONTRIBUTIONS TO RESPONDENT WITHOUT
RISK OF TAX LIABILITY UNDER CODE 4945(D)(5), 26 U.S.C. 4945(D)(5).  IN
THIS RESPECT, THE PURPOSE OF THIS ACTION WAS TO RESTRAIN THE ASSESSMENT
OF TAXES AGAINST SUCH FOUNDATIONS. 

/13/  THAT RESPONDENT HAS VOLUNTARILY PAID FUTA TAXES RATHER THAN
CHALLENGING THEIR IMPOSITION VIA A REFUND SUIT DOES NOT ALTER THIS
CONCLUSION.  A TAXPAYER CANNOT RENDER AN AVAILABLE REVIEW PROCEDURE AN
INADEQUATE REMEDY AT LAW BY VOLUNTARILY FORGOING IT.  SEE GRAHAM V. DU
PONT, 262 U.S. 234 (1923). 

IT SHOULD ALSO BE NOTED THAT THIS CASE CANNOT BE DISTINGUISHED FROM
BOB JONES, ANTE, P. 725, ON THE GROUND THAT PETITIONER IN THAT CASE IN
THEORY WILL BE SUBJECT TO FEDERAL INCOME TAXES UPON TERMINATION OF ITS
501(C)(3) STATUS, WHERAS RESPONDENT IN THIS CASE WILL NOT, GIVEN THAT
IT HAS ESTABLISHED 501(C)(4) STATUS.  REFUND SUITS FOR FEDERAL INCOME
TAXES AND FOR FUTA (OR FICA) TAXES ARE FUNGIBLE IN THE PRESENT
CONTEXT.  SO LONG AS THE IMPOSITION OF A FEDERAL TAX, WITHOUT REGARD TO
ITS NATURE, FOLLOWS FROM THE SERVICE'S WITHDRAWAL OF 501(C)(3) STATUS,
A REFUND SUIT FOLLOWING THE COLLECTION OF THAT TAX IS AN APPROPRIATE
VEHICLE FOR LITIGATING THE LEGALITY OF THE SERVICE'S ACTIONS UNDER
501(C)(3).  AS NOTED IN BOB JONES, ANTE, AT 748 N. 22, WE NEED NOT
DECIDE NOW THE RANGE OF REMEDIES AVAILABLE IN SUCH A REFUND SUIT,
WHICH, UNLIKE THIS SUIT, IS BROUGHT PURSUANT TO CONGRESSIONALLY
AUTHORIZED PROCEDURES. 

/14/  WE THINK OUR READING OF 7421(A) IS COMPELLED BY THE LANGUAGE
AND APPARENT CONGRESSIONAL PURPOSE OF THIS STATUTE.  THE CONSEQUENCES
OF THE PRESENT REGIME FOR 501(C)(3) ORGANIZATIONS CAN BE HARSH INDEED,
AS MR. JUSTICE BLACKMUN ABLY ARTICULATES IN HIS DISSENTING OPINION
TODAY.  AS WE NOTED IN BOB JONES, ANTE, AT 749 - 750, THIS MAY WELL BE
A SUBJECT MERITING CONGRESSIONAL CONSIDERATION. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE BLACKMUN, DISSENTING. 

FINDING MYSELF IN SOLITARY DISSENT IN THIS "TAX" CASE, I AM SOMEWHAT
DIFFIDENT ABOUT EXPRESSING VIEWS CONTRARY TO THOSE THE COURT APPARENTLY
HAS REACHED SO EASILY.  I DO SO ONLY BECAUSE I AM DISTURBINGLY AWARE OF
THE OVERWHELMING POWER OF THE INTERNAL REVENUE SERVICE.  THIS POWER IS
SUCH THAT ITS MERE EXERCISE OFTEN FREEZES TAX STATUS SO AS TO ENDANGER
THE EXISTENCE OF PHILANTHROPIC ORGANIZATIONS AND THE PUBLIC BENEFITS
THEY SECURE, MERELY BECAUSE THE PATH TO JUDICIAL REVIEW IS SO
DISCOURAGINGLY LONG AND EXPENSIVE.  I WRITE PRIMARILY, THEREFORE, TO
EXPRESS WHAT I FEEL IS A NEEDED WORD OF CAUTION ABOUT GOVERNMENTAL
POWER WHERE THE MEANS TO CHALLENGE THAT POWER ARE UNFAVORABLE AND
UNSATISFACTORY AT BEST. 

        I 

"AMERICANS UNITED" INC. (AU) IS A DISTRICT OF COLUMBIA NONPROFIT
EDUCATIONAL CORPORATION ORGANIZED IN 1948.  FOR ALMOST 18 YEARS AU WAS
FORMALLY RECOGNIZED BY THE SERVICE AS EXEMPT FROM FEDERAL INCOME TAX
UNDER 501 (C)(3) OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. 501
(C)(3), /1/  AND ITS PREDECESSOR, 101(6) OF THE INTERNAL REVENUE CODE
OF 1939. 

ON APRIL 25, 1968, HOWEVER, THE COMMISSIONER OF INTERNAL REVENUE
REVOKED AU'S LETTER-RULING EXEMPTION ON THE GROUND THAT THE
ORGANIZATION NO LONGER MET THE REQUIREMENTS OF 501(C)(3) AND, INSTEAD,
WAS AN "ACTION"  ORGANIZATION, WITHIN THE DEFINITION OF TREASURY
REGULATIONS 1.501(C)(3) - 1 (C)(3)(I) AND (IV), IN THAT A SUBSTANTIAL
PART OF ITS ACTIVITIES WAS DEVOTED TO THE PURSUIT OF OBJECTIVES TO
INFLUENCE LEGISLATION APP. 7 - 10.  THE LOSS OF ITS 501(C)(3) STATUS,
HOWEVER, DID NOT RESULT IN AU'S BECOMING SUBJECT TO FEDERAL INCOME
TAX.  THIS WAS BECAUSE AU QUALIFIED AS A CIVIC LEAGUE OR OTHER
ORGANIZATION TO WHICH 501(C)(4) HAS APPLICATION.  /2/ 

THE RESULT, NEVERTHELESS, WAS DISTINCTLY ADVERSE TO AU IN TWO
RESPECTS.  A CONTRIBUTION TO THE ORGANIZATION NO LONGER WAS DEDUCTIBLE
BY THE DONOR UNDER 170(A)(1) AND (C)(2)(D) OF THE 1954 CODE, 26 U.S.C.
170 (A)(1) AND (C)(2)(D), THE LATTER OF WHICH CLOSELY PARALLELS BUT IS
NOT IDENTICAL WITH 501(C)(3).  AS A MATTER OF MUCH LESS CONCERN, AU
ALSO BECAME SUBJECT TO FEDERAL UNEMPLOYMENT TAX UNDER 3301 OF THE CODE,
26 U.S.C. 3301, FOR EXEMPTION THEREFROM FOR 501 ORGANIZATIONS IS
LIMITED TO THOSE THAT QUALIFY UNDER 501(C)(3).  3306 (C)(8) OF THE 1954
CODE, 26 U.S.C. 3306(C)(8).  /3/  AU HAS PAID FEDERAL UNEMPLOYMENT
TAXES, /4/  AND HAS STIPULATED THAT IT WILL CONTINUE TO DO SO. 

AS A RESULT OF THE REVOCATION OF ITS 501(C)(3) STATUS, CONTRIBUTIONS
BY DONORS TO AU DECLINED SHARPLY SO THAT FOR THE FIRST TIME THE
ORGANIZATION WAS NOT ABLE TO RAISE ENOUGH FUNDS TO COVER ITS EXPENSES. 
AU AND TWO OF ITS BENEFACTORS THEN SOUGHT RELIEF BY THE PRESENT SUIT. 
/5/  THEY HAVE ALLEGED THAT THE SUBSTANTIALITY TEST OF 501(C)(3) AND
170 (C)(2)(D) CREATED AN UNCONSTITUTIONAL DISPARITY BETWEEN LARGE AND
SMALL ORGANIZATIONS; THAT THE COMMISSIONER REVOKED AU'S EXEMPTION
RULING PUNITIVELY; THAT IT WAS UNCONSTITUTIONAL TO PANALIZE FIRST
AMENDMENT ACTIVITY IN THIS MANNER; AND THAT 501(C)(3)'S "SUBSTANTIAL"
AND "PROPAGANDA" STANDARDS WERE UNCONSTITUTIONALLY VAGUE.  AU SOUGHT
REINSTATEMENT ON THE IRS CUMULATIVE LIST OF ORGANIZATIONS SO THAT
CONTRIBUTIONS TO IT WOULD BE DEDUCTIBLE BY DONORS UNDER 170(A)(1) AND
(C)(2)(D). 

        II 

THE ANTI-INJUNCTION ACT, 7421(A) OF THE CODE, 26 U.S.C. 7421(A),
READS IN PART: 

"(NO SUIT FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR
COLLECTION OF ANY TAX SHALL BE MAINTAINED IN ANY COURT BY ANY PERSON,
WHETHER OR NOT SUCH PERSON IS THE PERSON AGAINST WHOM SUCH TAX WAS
ASSESSED." 

IN CONSIDERING 7421(A), A TWO-STEP ANALYSIS IS NECESSARY:  (1) WHEN
DOES THE STATUTE APPLY?  (2) WHEN IT IS APPLICABLE, UNDER WHAT
CIRCUMSTANCES IS AN EXCEPTION PERMITTED?  IT SEEMS TO ME THAT THE COURT
OVERLOOKS THE FIRST QUESTION IN ORDER TO APPLY MECHANICALLY THE
CRITERIA FOR AN EXCEPTION TO THE APPLICATION OF 7421(A). 

THE THRESHOLD QUESTION, OBVIOUSLY, IS WHETHER THE PRESENT LITIGATION
IS A "SUIT FOR THE PURPOSE OF RESTRAINING"  ANY TAX.  IT IS CONCEDED
THAT AU HAS NO INCOME TAX LIABILITY AND WILL HAVE NONE REGARDLESS OF
THE OUTCOME OF THIS LITIGATION.  AU HAS PAID, AND WILL CONTINUE TO PAY,
FEDERAL UNEMPLOYMENT TAXES.  ITS ASSUMPTION OF FICA TAX LIABILITY IS
FROZEN AND CANNOT NOW BE TERMINATED. 

IT IS IN THE CONTEXT OF THIS FIXED AND CERTAIN STATUS AS TO ALL
THESE FEDERAL TAXES--INCOME, UNEMPLOYMENT, FICA--THAT "THE PURPOSE" OF
THE PRESENT LITIGATION, WITHIN THE MEANING OF 7421(A), MUST BE
ASCERTAINED.  AU ASSERTS THAT THE PURPOSE IS TO DETERMINE ITS
CHARITABLE STATUS SO FAR AS BENEFACTORS ARE CONCERNED.  INDEED, ONE
SURELY MUST CONCEDE THAT, WITHIN THE LITERAL IMPORT OF THE STATUTE'S
WORDS, THE SUIT IS NOT ONE "FOR THE PURPOSE OF RESTRAINING . . . ANY
TAX."  IT IS, INSTEAD, A SUIT TO ASSURE THE CONTINUANCE OF
CONTRIBUTIONS UTILIZED TO SUSTAIN AU'S OPERATIONS. 

I WOULD NOT ATTRIBUTE TO CONGRESS, HOWEVER, SO SIMPLISTIC A
PROHIBITION IN 7421(A) AS TO ENABLE AN ORGANIZATION TO CIRCUMVENT THE
STATUTORY BARRIER BY A SUBJECTIVE PROTESTATION OF THE PURPOSE FOR WHICH
AN INJUNCTION IS SOUGHT.  IN ORDER TO ASCERTAIN LEGISLATIVE INTENT, IT
IS NECESSARY TO CONSIDER EFFECT AS WELL AS PURPOSE AND THUS TO BRING
OBJECTIVE CRITERIA INTO THE ANALYSIS.  SEE RECENT DEVELOPMENT, 73 COL.
L. REV. 1502, 1508 - 1510 (1973). 

IN BOB JONES UNIVERSITY V. CONNALLY, 472 F.2D 903, 906 (1972), THE
FOURTH CIRCUIT CONCLUDED THAT WHEN THE WITHDRAWAL OF AN EXEMPTION
"WOULD ULTIMATELY RESULT IN POTENTIALLY GREATER TAX REVENUES," THE
OBVIOUS PURPOSE OF A SUIT TO ENJOIN THE WITHDRAWAL IS TO PREVENT THE
ASSESSMENT OF TAS, AND 7421(A) WOULD BE APPLICABLE.  THUS, "PURPOSE"
WAS EQUATED WITH ULTIMATE TAX EFFECT.  CRENSHAW COUNTY PRIVATE SCHOOL
FOUNDATION V. CONNALLY, 474 F.2D 1185, 1188 (CA5 1973), PET. FOR CERT.
PENDING NO. 73 - 170, HAS A SIMILAR FOCUS.  IN THE PRESENT CASE THE
COURT OF APPEALS TOOK A DIFFERENT APPROACH: 

"THE RESTRAINT UPON ASSESSMENT AND COLLECTION IS AT BEST A
COLLATERAL EFFECT OF THE ACTION, THE PRIMARY DESIGN NOT BEING TO REMOVE
THE BURDEN OF TAXATION FROM THOSE PRESENTLY CONTRIBUTING BUT RATHER TO
AVOID THE DISPOSITION OF CONTRIBUTED FUNDS AWAY FROM THE SORPORATION." 
155 U.S. APP. D.C. 284, 293 - 294, 477 F.2D 1169, 1178 - 1179.  IN THIS
VIEW, APPLICABILITY OF THE ATATUTE DEPENDS ON THE DIRECT EFFECT THE
RELIEF SOUGHT WOULD HAVE ON THE PLAINTIFF AND NOT ON THE SYSTEM AS A
WHOLE. 

AS HAS BEEN NOTED, THE RESULT OF THE INJUNCTION SOUGHT HERE WOULD
NOT DIRECTLY INHIBIT THE COLLECTION OF TAX FROM AU.  IT IS ALSO HIGHLY
SPECULATIVE WHAT COLLATERAL EFFECT, IF ANY AT ALL, THE SUIT COULD
POSSIBLY HAVE ON THE FEDERAL REVENUE.  IF THE ASSERTION THAT AU'S
CONTRIBUTIONS HAVE DRIED UP IS TO BE ACCEPTED, AS I SUSPECT IT MUST BE,
I WOULD PRESUME THAT ITS ERSTWHILE CONTRIBUTORS HAVE FOUND OTHER
OBJECTS FOR THEIR COUNTY, THAT IS, OTHER ORGANIZATIONS WHOSE NAMES
REMAIN ON THE SERVICE'S VITALLY IMPORTANT CUMULATIVE LIST.  WHEN
NOTHING MORE THAN POSSIBLE COLLATERAL EFFECT ON THE REVENUES IS
INVOLVED, THE COURT'S WIDE-RANGING TEST OF APPLICABILITY OF 7421(A),
ANNOUNCED TODAY, IS, FOR ME, TOO ATTENUATED AND TOO REMOVED TO BE
ENCOMPASSED WITHIN THE INTENDMENT OF THE STATUTE'S PHRASE, "FOR THE
PURPOSE OF RESTRAINING THE ASSESSMENT OR COLLECTION OF ANY TAX."     IN
ENOCHS V. WILLIAMS PACKING & NAVIGATION CO., 370 U.S. 1 (1962), THIS
COURT OBSERVED THAT THE OBJECT OF 7421(A) "IS TO WITHDRAW JURISDICTION
FROM THE . . . COURTS TO ENTERTAIN SUITS SEEKING INJUNCTIONS
PROHIBITING THE COLLECTION OF FEDERAL TAXES," AND "TO PERMIT THE UNITED
STATES TO ASSESS AND COLLECT TAXES ALLEGED TO BE DUE WITHOUT JUDICIAL
INTERVENTION, AND TO REQUIRE THAT THE LEGAL RIGHT TO THE DISPUTED SUMS
BE DETERMINED IN A SUIT FOR REFUND."  ID., AT 5 AND 7.  THERE
UNDOUBTEDLY IS APPROPRIATE CONCERN ABOUT THE UNDERLYING DANGER THAT A
MULTITUDE OF SPURIOUS SUITS, OR EVEN OF SUITS WITH POSSIBLE MERIT,
WOULD SO INTERRUPT THE FREE FLOW OF REVENUES AS TO JEOPARDIZE THE
NATION'S FISCAL STABILITY.  SEE, E.G., STATE RAILROAD TAX CASES, 92
U.S. 575, 613 - 614 (1876); CHEATHAM V. UNITED STATES, 92 U.S. 85, 89
(1876).  CERTAINLY, PRECOLLECTION SUITS COULD THREATEN PLANNING AND
BUDGETING.  BUT I DO NOT PERCEIVE HOW THE INJUNCTION DESIRED IN THIS
CASE INTERFERES WITH THE AREA OF CONCERN THAT IS THE SUBJECT OF
7421(A).  ANY POTENTIAL INCREASE IN REVENUES BECAUSE DONORS NO LONGER
MAY CONTRIBUTE TO AU AND THEREBY OBTAIN A 170(A)(1) DEDUCTION IS, AT
BEST, ONLY MINOR AND SPECULATIVE AND IS NEITHER SIGNIFICANT NOR
CONTROLLING.  I, THEREFORE, WOULD ACCEPT "DIRECT EFFECT ON THE
PLAINTIFF" AS A COMPONENT TO BE CONSIDERED IN THE ASCERTAINMENT OF THE
TRUE "PURPOSE"  OF THE SUIT, WITHIN THE MEANING AND REACH OF 7421(A). 

I DO NOT WISH TO INDICATE DISAPPROVAL OF WILLIAMS PACKING.  THERE A
TAXPAYER SOUGHT TO ENJOIN THE COLLECTION OF TAXES.  AS THE BASIS FOR
EQUITABLE JURISDICTION, IT ASSERTED THAT IT WOULD BE THROWN INTO
BANKRUPTCY IF IT WERE REQUIRED TO PAY THE TAXES IT CHALLENGED.  THE
COURT CAREFULLY NOTED THAT THERE MAY WELL BE SITUATIONS WHERE "THE
CENTRAL PURPOSE OF THE ACT IS INAPPLICABLE AND . . . THE ATTEMPTED
COLLECTION MAY BE ENJOINED."  370 U.S., AT 7.  TO BE SURE, THE COURT
NARROWLY CONFINED EXCEPTIONS TO 7421(A) TO INSTANCES WHERE THE
PLAINTIFF WOULD SUFFER IRREPARABLE INJURY AND WHERE IT WAS "CLEAR THAT
UNDER NO CIRCUMSTANCES COULD THE GOVERNMENT ULTIMATELY PREVAIL."  IBID.
IF, HOWEVER, THIS TEST IS MET, THEN THE "MANIFEST PURPOSE" OF THE
STATUTE--TO PERMIT THE COLLECTION OF TAXES WITHOUT JUDICIAL
INTERVENTION--IS "INAPPLICABLE."  THE COURT THUS MADE IT CLEAR THAT
THERE WAS AN ELEMENT, IN ADDITION TO THE TRADITIONAL EQUITY
CONSIDERATIONS PREVIOUSLY SPELLED OUT IN MILLER V. STANDARD NUT
MARGARINE CO., 284 U.S. 498 (1932), THAT MUST BE PRESENT IN ORDER TO
AVOID THE PROSCRIPTION OF THE ANTI-INJUNCTION STATUTE. 

WILLIAMS PACKING, OF COURSE, ON ITS FACTS, IS CLEARLY
DISTINGUISHABLE FROM THIS CASE.  THERE THE PURPOSE OF THE SUIT WAS
DIRECTLY TO RESTRAIN THE COLLECTION OF SOCIAL SECURITY AND UNEMPLOYMENT
TAXES ALLEGEDLY PAST DUE FROM THAT TAXPAYER.  HERE THE AVOWED PURPOSE
IS NOT TO RESTRAIN TAX COLLECTION BUT TO ASSURE AU'S RESTORATION ON THE
CUMULATIVE LIST.  IN WILLIAMS PACKING IT WAS THE INCIDENCE OF TAXATION
THAT WAS CHALLENGED AND THE IRREPARABLE INJURY OF PROSPECTIVE PAYMENT
OF THE TAX WAS CLAIMED AS THE EQUITABLE BASIS FOR THE INJUNCTION. 
NOTHING REMOTELY RESEMBLING THAT IS PRESENT HERE.  TO READ WILLIAMS
PACKING AS BROADLY AS THE COURT DOES TODAY IS TO MAKE 7421(A) MORE
RESTRICTIVE THAN THE COURT IN WILLIAMS PACKING OR CONGRESS INTENDED. 
THE RESULT IS THAT 7421(A) BECOMES AN ABSOLUTE BAR TO ANY AND ALL
INJUNCTIONS, IRRESPECTIVE OF TAX LIABILITY, OF PURPOSE OR EFFECT OF THE
SUIT, OR OF THE CHARACTER OF THE SERVICE'S ACTION. 

THERE IS A FURTHER CONSIDERATION.  ARGUABLY, WHERE THE CHALLENGED
GOVERNMENTAL ACTION IS NOT ONE INTENDED TO PRODUCE REVENUE BUT, RATHER,
IS ONE TO ACCOMPLISH A BROADBASED POLICY OBJECTIVE THROUGH THE MEDIUM
OF FEDERALP TAXATION, THE APPLICATION OF 7421(A) IS INAPPROPRIATE.  /6/
OBVIOUSLY, 501(C)(3) IS NOT DESIGNED TO RAISE MONEY.  /7/  ITS
PURPOSE, RATHER, IS TO ASSURE THE EXISTENCE OF TRULY PHILANTHROPIC
ORGANIZATIONS AND THE CONTINUATION OF THE IMPORTANT PUBLIC BENEFITS
THEY BESTOW.  /8/ 

ANOTHER VERY IMPORTANT FACTOR DESERVING CONSIDERATION IN THIS
CONTEXT IS THE HAZARD OF VESTING IN THE COMMISSIONER VIRTUAL
PLENIPOTENTIARY POWER OVER PHILANTHROPIC ORGANIZATIONS.  ALTHOUGH THERE
CAN BE LITTLE QUESTION THAT THE COMMISSIONER, UNDER 7805(A) OF THE
CODE, 26 U.S.C. 7805(A), IS PROPERLY VESTED WITH BROAD POWERS TO
"PRESCRIBE ALL NEEDFUL RULES AND REGULATIONS FOR THE ENFORCEMENT" OF
THE TAX LAWS, THERE IS NOTHING IN THE CODE THAT SUGGESTS THAT HE MUST
BE FULLY INSULATED FROM CHALLENGE WHEN EFFECTUATING SOCIAL POLICY. 

AU HAS CHARGED UNCONSTITUTIONAL TREATMENT PURSUANT TO AN
UNCONSTITUTIONAL PROVISION.  THESE ARE CLAIMS PECULIARLY WITHIN THE
PROVINCE OF COURTS AND NOT OF THE EXECUTIVE'S ADMINISTRATIVE OFFICERS. 
THE COURT'S OPINION MAKES CLEAR THAT A CLAIM OF THIS DIND IS NOW
PRECLUDED FROM JUDICIAL DETERMINATION UNTIL SUCH TIME AS THE COURT
CONCLUDES THAT THE GOVERNMENT COULD NOT ULTIMATELY PREVAIL ON THE
MERITS.  UNLESS AND UNTIL THAT CONSLUSION IS REACHED, THE PHILANTHROPIC
ORGANIZATION IS AT THE MERCY OF THE COMMISSIONER FOR THE PERIOD OF TIME
-USUALLY A SUBSTANTIAL ONE--IT TAKES FOR A CLAIM TO BE FILED AND TO
WORK ITS WAY THROUGH THE ADJUDICATIVE PROCESS IN THE GUISE OF A REFUND
SUIT WITH ITS MYRIAD PITFALLS.  AND EVEN THIS ROUTE IS POSSIBLE ONLY IF
THE ORGANIZATION HAS A TAX THAT HAS BEEN PAID.  /9/  SEE PART III,
INFRA. 

THE COURT IN BOB JONES UNIVERSITY, ANTE, AT 729 - 730, ACKNOWLEDGES
THAT "APPEARANCE ON THE CUMULATIVE LIST IS A PREREQUISITE TO SUCCESSFUL
FUND RAISING FOR MOST CHARITABLE ORGANIZATIONS."  THE PROGRAM OF
EXEMPTION BY LETTER RULING, THEREFORE, IS TANTAMOUNT TO A LICENSING
PROCEDURE.  IF THE COMMISSIONER'S AUTHORITY WERE LIMITED BY A CLEAR
STATUTORY DEFINITION OF 501(C)(3)'S REQUIREMENT OF "NO SUBSTANTIAL
PART," OR BY AN OBJECTIVE DEFINITION OF WHAT IS "CHARIBABLE," THERE
WOULD BE LESS CONCERN ABOUT POSSIBLE ADMINISTRATIVE ABUSE.  /10/  BUT
WHERE THE PHILANTHROPIC ORGANIZATION IS CONCERNED, THERE APPEARS TO BE
LITTLE TO CIRCUMSCRIBE THE ALMOST UNFETTERED POWER OF THE
COMMISSIONER.  /110 THIS MAY BE VERY WELL SO LONG AS ONE SUBSCRIBES TO
THE PARTICULAR BRAND OF SOCIAL POLICY THE COMMISSIONER HAPPENS TO BE
ADVOCATING AT THE TIME (A SOCIAL POLICY THE MERITS OF WHICH I MAKE NO
ATTEMPT TO EVALUATE), BUT APPLICATION OF OUR TAX LAWS SHOULD NOT
OPERATE IN SO FICKLE A FASHION.  SURELY, SOCIAL POLICY IN THE FIRS
TINSTANCE IS A MATTER FOR LEGISLATIVE CONCERN.  TO THE EXTENT THESE
DETERMINATIONS ARE REPOSED IN THE AUTHORITY OF THE INTERNAL REVENUE
SERVICE, THEY SHOULD HAVE THE SYSTEM OF CHECKS AND BALANCES PROVIDED BY
JUDICIAL REVIEW BEFORE AN ORGANIZATION THAT FOR YEARS HAS BEEN FAVORED
WITH AN EXEMPTION RULING IS IMPERILED BY AN ALLEGEDLY UNCONSTITUTIONAL
CHANGE OF DIRECTION ON THE PART OF THE SERVICE. 

WHEN AN ORGANIZATION WHICH HAS APPEARED ON THE CUMULATIVE LIST SEEKS
TO ENJOIN WHAT IT CLAIMS IS ITS ILLEGAL REMOVAL FROM THAT LIST AND HAS
NO DIRECT INCOME TAX LIABILITY OR A DE MINIMIS COLLATERAL LIABILITY,
THE INJUNCTION, IN MY VIEW, SHOULD NOT BE WITHIN THE PROHIBITION OF
7421(A). 

        III 

CONCLUDING, AS I HAVE, THAT 7421(A) IS NOT A BAR TO AN INJUNCTION BY
AU, THE TRADITIONAL EQUITABLE CONSIDERATIONS OF IRREPARABLE INJURY AND
ADEQUATE ALTERNATIVE REMEDY MUST DETERMINE WHETHER INJUNCTIVE RELIEF IS
APPROPRIATE.  THIS IS AN INQUIRY INDEPENDENT OF THE QUESTION WHETHER
THE ANTI-INJUNCTION STATUTE APPLIES, AND IS NO DIFFERENT FROM THE
INQUIRY AS TO WHEN INJUNCTIVE RELIEF IS APPROPRIATE OUTSIDE THE TAX
FIELD.  SEE, FOR EXAMPLE, PUBLIC SERVICE COMM'N V. WYCOFF CO., 344 U.S.
237, 240 - 241 (1952); BEACON THEATRES, INC. V. WESTOVER, 359 U.S. 500,
506 - 507 (1959).  AU MAKES A VIGOROUS AND PRESSIGN CLAIM THAT IT IS
AND WILL BE IRREPARABLE INJURED BY THE LOSS OF CONTRIBUTIONS SINCE
DONORS NO LONGER RECEIVE AN INCOME TAX DEDUCTION, AND THAT THIS LOSS IS
COMPLETELY UNRECOVERABLE EVEN WERE AU ULTIMATELY TO PREVAIL ON THE
MERITS.  THE COURT IN ITS OPINION, ANTE, AT 761 - 762, SEEMS TO ACCEPT
THE FACT OF IRREPARABLE INJURY HERE, JUST AS THE COURT OF APPEALS
RECOGNIZED ITS PRESENCE AS VIRTUALLY INEVITABLE.  155 U.S. APP. D.C.,
AT 292, 477 F.2D, AT 1177.  EVEN WHERE IT HAS BEEN FOUND THAT 7421 (A)
BARS A SUIT, IT HAS BEEN RECOGNIZED THAT REVOCATION OF EXEMPT STATUS IS
AN IRREPARABLE INJURY THAT OTHERWISE SATISFIES THE CONDITION FOR THE
GRANTING OF INJUNCTIVE RELIEF.  SEE, FOR EXAMPLE, BOB JONES UNIVERSITY
V. CONNALLY, 472 F.2D, AT 906. 

IN ADDITION TO IRREPARABLE INJURY, THE PLAINTIFF MUST SHOW THAT HE
HAS NO ADEQUATE REMEDY AT LAW.  WILSON V. SHAW, 204 U.S. 24, 31
(1907).  THE COMMISSIONER SUGGESTS THAT A PLAINTIFF ORGANIZATION
USUALLY HAS THREE ALTERNATIVE REMEDIES, ANY ONE OF WHICH IS ADEQUATE:
AN INCOME TAX REFUND SUIT, A FEDERAL UNEMPLOYMENT TAX OR FICA TAX
REFUND SUIT, AND AN ACCOMMODATION SUIT BY A SELECTED DONOR IN THE FORM
OF TESTING HIS CLAIM TO A CHARITABLE DEDUCTION UNDER 170(A)(1) AND
(C)(2)(D). 

IN AU'S CASE THE COMMISSIONER, OF COURSE, CANNOT AND DOES NOT
CONTEND THAT THE INCOME TAX REFUND SUIT ALTERNATIVE IS AVAILABLE.  AU
RECEIVED 501(C)(4) STATUS UPON REVOCATION OF ITS 501(C)(3) EXEMPTION,
AND IT IS NOT SUBJECT TO FEDERAL INCOME TAX SO LONG AS IT RETAINS 501
(C)(4) STATUS.  WHENEVER THAT ALTERNATIVE IS AVAILABLE, AS IN BOB JONES
UNIVERSITY, ANTE, P. 725, SUCH AVAILABILITY NOT ONLY INDICATES THE
EXISTENCE OF A REMEDY AT LAW BUT THAT THE DIRECT EFFECT OF AN
INJUNCTION WOULD BE TO RESTRAIN THE COLLECTION OF TAXES. 

AN FICA TAX REFUND SUIT IS NOT AVAILABLE AS AN ALTERNATIVE TO AU,
SINCE AU HAS MADE ITS ELECTION UNDER 3121(K)(1)(A) AND THAT ELECTION IS
NOW IRREVOCABLE.  SEE N. 3, SUPRA.  ALTHOUGH AU CONCEIVABLY MIGHT BRING
A REFUND SUIT FOR FEDERAL UNEMPLOYMENT TAXES, /12/  THE REAL QUESTION,
AND A SUBSTANTIAL ONE, IS WHETHER THAT REMEDY IS ADEQUATE FOR AU AND IS
AN EFFECTIVE ROUTE FOR THE DETERMINATION OF THE ISSUES INVOLVED. 

A SUIT FOR REFUND OF FEDERAL UNEMPLOYMENT TAX, AUTHORIZED UNDER 7422
OF THE CODE, 26 U.S.C. 7422, AND WITH A PERIOD OF LIMITATIONS IMPOSED
BY 6532(A), IS DIRECTLY GEARED TO A DETERMINATION OF THE TECHNICAL
ASPECTS OF FUTA LIABILITY AND NOT TO THE LARGER CONSTITUTIONAL ISSUES. 
AT MOST, THE REFUND SUIT IS AN ARTIFICIAL VEHICLE TO ADJUDICATE
QUESTIONS OTHER THAN ENTITLEMENT TO REFUND; ITS FOCUS IS ON LIABILITY
AND NOT ON ELIGIBILITY UNDER 170(A)(1) AND (C)(2)(D).  IT IS MOST
DOUBTFUL, ALSO, THAT POTENTIAL CONTRIBUTORS WOULD REGARD A FAVORABLE
OUTCOME IN SUCH A SUIT AS POSSESSING THE RELIABILITY OF A FAVORABLE
LETTER RULING.  ASSUMING THAT AU COULD LITIGATE ITS CONSTITUTIONAL
CLAIMS IN AN FUTA REFUND SUIT, SEE CHRISTIAN ECHOES NATIONAL MINISTRY,
INC. V. UNITED STATES, 470 F.2D 849 (CA10 1972), CERT. DENIED, 414 U.S.
864 (1973), /13/  THERE ARE OTHER OBSTACLES IN ITS PATH. 

THE SUIT FOR REFUND MAY NOT BE MAINTAINED UNTIL A CLAIM FOR REFUND
HAS BEEN FILED.  7422.  THE FEDERAL UNEMPLOYMENT TAX IS IMPOSED ON AN
ANNUAL BASIS; THUS, NO REFUND CAN BE CLAIMED UNTIL THE EXPIRATION OF
THE YEAR FOR WHICH THE TAX IS PAID.  SECTION 6532(A)(1), AS USUAL,
PRECLUDES THE SUIT UNTIL THE CLAIM IS DENIED OR SIX MONTHS HAVE PASSED
FROM THE DATE OF FILING.  ONCE SUIT IS INSTITUTED, THE GOVERNMENT HAS
AT LEAST 60 DAYS TO ANSWER THE COMPLAINT.  UNDER OPTIMUM CONDITIONS AND
WITH COOPERATION, THE MINIMUM PERIOD OF TIME REQUIRED TO ACHIEVE THE
OBJECTIVE THROUGH THE REFUND SUIT IS ONE TO TWO YEARS FROM THE TIME OF
REVOCATION.  /14/  THIS IS THE DELAY IF THE ORGANIZATION WINS AND NO
GOVERNMENT APPEAL IS TAKEN.  IF AN APPEAL FOLLOWS, THE DELAY IN
ULTIMATE RESOLUTION DRAGS ON.  E.G., CHRISTIAN ECHOES, SUPRA, WHERE THE
RULING WAS REVOKED IN 1966 AND FINAL JUDICIAL REVIEW WAS CONCLUDED ONLY
IN 1973.  WHILE THIS IS PERHAPS TO BE EXPECTED, AND MUST BE ENDURED, IN
AN ORDINARY TAX REFUND SUIT, A DELAY OF THIS MAGNITUDE DEFEATS THE
ADEQUACY OF REMEDY WHEN A PHILANTHROPIC ORGANIZATION'S VERY EXISTENCE
IS AT STAKE. 

THERE ARE STILL OTHER HAZARDS.  WHEN SMALL SUMS ARE AT ISSUE, AS
WITH AU'S FUTA LIABILITY, THE GOVERNMENT INADVERTENTLY OR INTENTIONALLY
MAY CONCEDE THE REFUND.  THIS IS NOT UNLIKELY, FOR SOUND ADMINISTRATION
MAY NOT WARRANT THE TIME AND EXPENSE NECESSARY TO CONTEST A CLAIM OF
SMALL AMOUNT WHEN VITAL ISSUES AND CONCEIVABLY PROFOUND PRECEDENTS ARE
AT STAKE.  CHURCH OF SCIENTOLOGY V. UNITED STATES, 485 F.2D 313 (CA9
1973), ILLUSTRATES THE GOVERNMENT'S EFFORT TO WIN DISMISSAL OF A CASE
WHEN A REFUND HAD BEEN MADE.  SEE ALSO MITCHELL V. RIDDELL, 402 F.2D
842 (CA9 1968), APPEAL DISMISSED AND CERT DENIED, 394 U.S. 456 (1969). 
THERE IS LITTLE DOUBT THAT THE COMMISSIONER POSSESSES THE AUTHORITY TO
MAKE THE REFUND AND MOOT THE SUIT IF HE CHOOSES NOT TO LITIGATE THE
UNDERLYING ISSUES.  ALTHOUGH I AGREE WITH THE COMMISSIONER THAT TO DO
SO IN A SITUATION LIKE THAT IN THE INSTANT CASE WOULD AMOUNT TO BAD
FAITH, BRIEF FOR PETITIONER 35 N. 25, IT WOULD BE ALMOST IMPOSSIBLE FOR
AN ORGANIZATION TO PROVE BAD FAITH WHERE, AS HERE, THE SUM AT ISSUE IS
MINIMAL AND INADVERTENCE OR SOUND ADMINISTRATION COULD BE A VALID
REASON FOR THE REFUND. 

ADDITIONALLY, THERE IS A SUBSTANTIAL QUESTION WHETHER AN
ORGANIZATION'S EVENTUAL VICTORY IN A REFUND SUIT WOULD ACCOMPLISH ITS
GOAL.  THE COMMISSIONER HAS ASSERTED THAT "NORMAL PRACTICE IS TO ISSUE
A FAVORABLE RULING UPON THE APPLICATION OF AN ORGANIZATION WHICH HAS
PREVAILED IN A COURT SUIT," REPLY BRIDF FOR PETITIONER 34 - 35, N. 31. 
STILL, THE IRS EXEMPT ORGANIZATIONS HANDBOOK STATES: 

     "AN ORGANIZATION WHICH OBTAINS A TAX COURT OR FEDERAL COURT

  DECISION HOLDING IT TO BE EXEMPT MUST FILE AN EXEMPTION

  APPLICATION AND ESTABLISH ITS RIGHT TO EXEMPTION BEFORE THE

  SERVICE WILL RECOGNIZE ITS ESEMPTION FOR YEARS SUBSEQUENT TO

  THOSE INVOLVED IN THE COURT DECISION."  DEPARTMENT OF TREASURY,

  INTERNAL REVENUE MANUAL, PART XI, C. (11) 671, 270. 

WHATEVER THE INTERNAL PRACTICE MAY BE, THE PUBLISHED PROCEDURES CAST
SERIOUS DOUBT ON THE ADEQUACY OF THE REFUND SUIT TO RESOLVE THE
ORGANIZATION'S URGENT PROBLEM.  THE REVENUE RULING HAS PROSPECTIVE
APPLICATION, WHEREAS A COURT DETERMINATION OPERATES RETROSPECTIVELY TO
THE EXTENT THE PLEADINGS AND PROOF AND THE APPLICABLE STATUTE OF
LIMITATIONS PERMIT.  /15/  THUS, THE SCOPE OF RELIEF AVAILABLE IN A
REFUND SUIT IS ALSO UNCERTAIN.  THE ORGANIZATION IS THEN FACED WITH THE
DILEMMA OF CHOOSING BETWEEN A SO-CALLED PRE-ASSESSMENT SUIT, WHICH THE
COURT SAYS IT CANNOT BRING, AND A REFUND SUIT THAT DECIDES LITTLE MORE
THAN THE CORRECTNESS OF A PARTICULAR YEAR'S TAX LIABILITY (WHICH IN
THIS CASE HAS BEEN PAID AND IS OF LITTLE OR NO CONCERN). 

THE STAGED SUIT BY A "FRIENDLY" DONOR IS THE COMMISSIONER'S OTHER
SUGGESTION.  THE DONOR'S SUIT SUFFERS THE SAME TIME PROBLEMS.  THE
ORGANIZATION IS OFF THE CUMULATIVE LIST AT LEAST UNTIL THE DONOR
EXTABLISHES HIS ENTITLEMENT TO A 170(A)(1) AND (C)(2)(D) DEDUCTION. 
THIS SUIT ALSO MAY BE MOOTED.  MOREOVER, LITIGATION BY THE ACCOMODATING
DONOR DOES NOT PERMIT THE ORGANIZATION TO ASSERT ITS RIGHTS AND
INTERESTS.  COULD THE DONOR MAKE THE FIRST AMENDMENT AND EQUAL
PROTECTION CLAIMS THAT AU SEEKS TO HAVE DETERMINED?  NOT ONLY MUST AU
RELY ON A CONTRIBUTOR TO RAISE ISSUES FOR IT, BUT IT MUST FIND A DONOR
WHO IS WILLING BOTH TO CONTRIBUTE AND TO UNDERTAKE THE TASK OF
LITIGATION.  THIS STRAINS LARGESSE TO THE EXTREME, PARTICULARLY SINCE
THE SUIT WILL SUBJECT THE DONOR TO ROUTINE FULL AUDIT OF HIS OWN
RETURN. 

I CONCLUDE THAT NEITHER COURSE IS AN ADEQUATE REMEDY FOR AN
IRREPARABLY HARMED ORGANIZATION TO VINDICATE ITS CLAIMS.  /16/  THUS,
EQUITABLE RELIEF IN THE FORM OF AN INJUNCTION IS NOT INAPPROPRIATE. 

        IV 

THE LAST ISSUE IS WHETHER THE AMENDED COMPLAINT PRESENTED A
SUBSTANTIAL CONSTITUTIONAL QUESTION ON THE MERITS JUSTIFYING THE
CONVENING OF A THREE-JUDGE COURT UNDER 28 U.S.C. 2282.  THE TEST WAS
ENUNCIATED IN EX PARTE PORESKY, 290 U.S. 30, 32 (1933), AND RESTATED IN
GOOSBY V. OSSER, 409 U.S. 512, 518 (1973), AND IN HAGANS V. LAVINE, 415
U.S. 528, 542 - 543 (1974).  THE COURT OF APPEALS IN THE PRESENT CASE
SAID THAT "THE POSSIBILITY OF SUCCESS IS NOT SO CERTAIN AS TO MERIT THE
ENOCHS EXCEPTION WITH RESPECT TO 7421(A), YET NOT SO FRIVOLOUS OR
FORECLOSED AS TO MERIT DENIAL OF THE 2282 MOTION."  155 U.S. APP. D.C.,
AT 298, 477 F.2D, AT 1183.  I DO NOT DIFFER WITH THAT DETERMINATION. 

I, OF COURSE, IMPLY NO OPINION ON THE MERITS OF THE UNDERLYING
CONTROVERSY. 

SINCE I CANNOT JOIN THE COURT'S REVERSAL OF THE COURT OF APPEALS'
JUDGMENT, I RESPECTFULLY DISSENT. 

/1/  AU'S EXEMPTION RULING, UNDER 101(6) OF THE 1939 CODE, WAS
ISSUED JULY 3, 1950.  SECTION 501 READS IN PERTINENT PART AS FOLLOWS:
"501.  EXEMPTION FROM TAX ON CORPORATIONS, CERTAIN TRUSTS, ETC.  "(A)
EXEMPTION FROM TAXATION.  "AN ORGANIZATION DESCRIBED IN SUBSECTION (C)
. . . SHALL BE EXEMPT FROM TAXATION UNDER THIS SUBTITLE UNLESS SUCH
EXEMPTION IS DENIED UNDER SECTION 502 OR 503. 

.         .         .         .         . 

"(3) CORPORATIONS, AND ANY COMMUNITY CHEST, FUND, OR FOUNDATION,
ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE,
SCIENTIFIC, TESTING FOR PUBLIC SAFETY, LITERARY, OR EDUCATIONAL
PURPOSES, OR FOR THE PREVENTION OF CRUELTY TO CHILDREN OR ANIMALS, NO
PART OF THE NET EARNINGS OF WHICH INURES TO THE BENEFIT OF ANY PRIVATE
SHAREHOLDER OR INDIVIDUAL, NO SUBSTANTIAL PART OF THE ACTIVITIES OF
WHICH IS CARRYING ON PROPAGANDA, OR OTHERWISE ATTEMPTING, TO INFLUENCE
LEGISLATION, AND WHICH DOES NOT PARTICIPATE IN, OR INTERVENE IN
(INCLUDING THE PUBLISHING OR DISTRIBUTING OF STATEMENTS), ANY POLITICAL
CAMPAIGN ON BEHALF OF ANY CANDIDATE FOR PUBLIC OFFICE." 

/2/  SECTION 501(C)(4) RELATES TO: 

"(4) CIVIC LEAGUES OR ORGANIZATIONS NOT ORGANIZED FOR PROFIT BUT
OPERATED EXCLUSIVELY FOR THE PROMOTION OF SOCIAL WELFARE, OR LOCAL
ASSOCIATIONS OF EMPLOYEES, THE MEMBERSHIP OF WHICH IS LIMITED TO THE
EMPLOYEES OF A DESIGNATED PERSON OR PERSONS IN A PARTICULAR
MUNICIPALITY, AND THE NET EARNINGS OF WHICH ARE DEVOTED EXCLUSIVELY TO
CHARITABLE, EDUCATIONAL, OR RECREATIONAL PURPOSES." 

/3/  ALTHOUGH, UNDER 312(B)(8)(B) OF THE 1954 CODE, 26 U.S.C. 3121
(B)(8)(B), AU WAS NOT REQUIRED TO PAY TAX IMPOSED BY THE FEDERAL
INSURANCE CONTRIBUTIONS ACT SO LONG AS IT WAS EXEMPT UNDER 501(C)(3),
IT HAD ELECTED TO DO SO, AS WAS ITS PRIVILEGE UNDER 3121(K)(1)(A), 26
U.S.C. 3121(K)(1)(A).  TERMINATION OF THIS ACCEPTED RESPONSIBILITY FOR
TAX REQUIRES TWO YEARS' ADVANCE WRITTEN NOTICE AND CANNOT BE EFFECTED
AT ALL AFTER AN ORGANIZATION HAS BEEN SUBJECTED TO THE TAX EIGHT YEARS
OR MORE.  3121(K) (1)(D), 26 U.S.C. 3121 (K)(1)(D).  AU HAS BEEN SO
TAXED FOR MORE THAN EIGHT YEARS.  THUS, IT IS UNABLE TO TERMINATE ITS
RESPONSIBILITY FOR TAX UNDER THE FICA EVEN IF IT WERE TO CONTINUE AS A
501(C)(3) ORGANIZATION. 

/4/  AU PAID $981.13 IN FEDERAL UNEMPLOYMENT TAX FOR 1969; $1,052.60
FOR 1970; $889.09 FOR 1971; AND $1,131.36 FOR 1972.  BRIEF FOR
PETITIONER 4 N. 2. 

/5/  THE AMENDED COMPLAINT REQUESTED BOTH DECLARATORY AND INJUNCTIVE
RELIEF.  THE LATTER, HOWEVER, WOULD BE FULLY ADEQUATE AND A DECLARATORY
JUDGMENT, AS SUCH, WOULD NOT BE NEEDED.  ACCORDINGLY, I AM CONCERNED
ONLY WITH THE APPLICABILITY OF THE ANTI-INJUNCTION STATUTE, 7421(A) OF
THE CODE, 26 U.S.C. 7421(A). 

THE COMMISSIONER HAS ASSERTED THAT THE DECLARATORY JUDGMENT ACT, 28
U.S.C. 2201 - 2202, ALSO PROVIDES A JURISDICTIONAL BARRIER TO THE SUIT
BECAUSE ITS GENERAL APPLICABILITY IS LIMITED BY THE PHRASE, "EXCEPT
WITH RESPECT TO FEDERAL TAXES."  WHILE NOT REACHING THE QUESTION, I
WOULD AGREE WITH THE COURT'S OBSERVATION IN THE COMPANION CASE, BOB
JONES UNIVERSITY V. SIMON, ANTE, AT 732 - 733, N. 7, THAT QUESTIONS
EXIST AS TO THE SCOPE OF 2201 AND AS TO WHETHER IT IS COTERMINOUS WITH
7421(A). 

THE COMMISSIONER ALSO ASSERTS THAT THE DOCTRINE OF SOVEREIGN IMMUNITY
BARS THE PRESENT ACTION.  I DO NOT AGREE.  THE SUIT, AS THE COURT OF
APPEALS NOTED, 155 U.S. APP. D.C. 284, 295, 477 F. 2D 1169, 1180, FALLS
WITHIN THE IMMUNITY DOCTRINE'S EXCEPTIONS ENUNCIATED IN DUGAN V. RANK,
372 U.S. 609, 621 - 622 (1963): "(1) ACTION BY OFFICERS BEYOND THEIR
STATUTORY POWERS AND (2) EVEN THOUGH WITHIN THE SCOPE OF THEIR
AUTHORITY, THE POWERS THEMSELVES OR THE MANNER IN WHICH THEY ARE
EXERCISED ARE CONSTITUTIONALLY VOID."  HERE, THE CLAIM IS MADE THAT
501(C)(3) IS UNCONSTITUTIONAL AND THAT THE COMMISSIONER ADMINISTERS THE

IN GREEN V. CONALLY, 30 F. SUPP. 1150 (DC 1971), THE COURT GRANTED
RELIEF AGAINST TREASURY OFFICIALS COMPARABLE TO THAT SOUGHT HERE. 
INASMUCH AS THE DEFENSE OF SOVEREIGN IMMUNITY IS JURISDICTIONAL, UNITED
STATES V. SHERWOOD, 312 U.S. 584, 586 (1941), THIS COURT'S SUMMARY
AFFIRMANCE OF THE GREEN CASE, SUB NOM. COIT V. GREEN, 404 U.S. 997
(1971), AFFORDS PERTINENT PRECEDENT. 

/6/  SOME COURTS HAVE ENDORSED THIS APPROACH.  IN MCGLOTTEN V.
CONNALLY, 338 F. SUPP. 448 (DC 1972), A SUIT TO ENJOIN, AMONG OTHER
THINGS, THE CONTINUATION OF TAX EXEMPT STATUS OF ORGANIZATIONS THAT
EXCLUDED NONWHITES FROM MEMBERSHIP, CHIEF JUDGE BAZELON, IN WRITING FOR
A THREE-JUDGE DISTRICT COURT, STATED: 

"PLAINTIFF'S ACTION HAS NOTHING TO DO WITH THE COLLECTION OR
ASSISSMENT OF TAXES.  HE DOES NOT CONTEST THE AMOUNT OF HIS OWN TAX,
NOR DOES HE SEEK TO LIMIT THE AMOUNT OF TAX REVENUE COLLECTIBLE BY THE
UNITED STATES.  . . . IN THE PRESENT CASE, THE CENTRAL PURPOSE (OF THE
STATUTE) IS CLEARLY INAPPLICABLE."  ID., AT 453 - 454 (FOOTNOTES
OMITTED).  SEE ALSO GREEN V. CONNALLY, 330 F. SUPP. 1150 (DC), AFF'D
SUB COM. COIT V. GREEN, 404 U.S. 997 (1971), WHERE THE THREE-JUDGE
COURT DID NOT MENTION 7421(A) SPECIFICALLY BUT PERMITTED THE SUIT AND
GRANTED RELIEF; BOB JONES UNIVERSITY V. CONNALLY, 472 F. 2D 903, 907 -
908 (CA4 1973) (DISSENTING OPINION).  SEE THE OPINION OF THE COURT OF
APPEALS IN THE PRESENT CASE.  155 U.S. APP. D.C., AT 293 - 294, 477
F.2D, AT 1178 - 1179. 

THE PURPOSE OF THE IRS ACTION OF ITSELF IS NOT CONTROLLING.  THE
COURT HAS FOUND THAT "TAXES" IN THE NATURE OF A PENALTY WERE NOT WITHIN
THE MEANING OF 7421(A), HILL V. WALLACE, 259 U.S. 44 (1922); LIPKE V.
LEDERER, 259 U.S. 557 (1922), AND HAS REJECTED, AS WELL, THE CONTENTION
THAT AN INJUNCTION COULD ISSUE AGAINST A REGULATORY TAX AS OPPOSED TO A
REVENUE MEASURE.  SONZINSKY V. UNITED STATES, 300 U.S. 506 (1937).  THE
COURT RELIES ON BAILEY V. GEORGE, 259 U.S. 16 (1922), FOR THE PRINCIPLE
THAT EVEN THE COLLECTION OF AN UNCONSTITUTIONAL TAX CANNOT BE
ENJOINED.  ALL THESE SITUATIONS, HOWEVER, HAVE A FACTOR IN COMMON WITH
WILLIAMS PACKING THAT IS ABSENT FROM THE PRESENT SUIT:  AU DOES NOT
SEEK TO RESTRAIN THE GOVERNMENT'S ACT OF COLLECTING ANY TAX THAT IT
OWES. 

/7/  COMMISSIONER ALEXANDER SPOKE TO THIS EFFECT IN REMARKS TO THE
AMERICAN SOCIETY OF ASSOCIATION EXECUTIVES IN NEW ORLEANS AUGUST 29,
1973: 

"THE IRS RECOGNIZES THAT THE EXEMPT ORGANIZATION PROVISIONS OF THE
LAW MUST BE INTERPRETED AND ADMINISTERED IN LIGHT OF THEIR SPECIAL
PURPOSE AND THEIR PLACE IN THE TAX LAW.  THEIR PURPOSE IS NOT TO RAISE
REVENUE.  RATHER, THEY ARE DESIGNED TO ACT AS A GUARDIAN.  THEY INSURE
THAT EXEMPT ORGANIZATION ASSETS WILL BE PUT TO THE APPROVED USES
CONTEMPLATED IN THE LAW.  THEIR APPLICATION CALLS FOR AN EXTRAORDINARY
DEGREE OF CARE AND JUDGMENT."  BNA DAILY TAX REPORT, AUG. 30, 1973, P.
J - 1. 

/8/  THE VALUE OF PHILANTHROPIC ORGANIZATIONS MUST BE BALANCED
AGAINST THE REVENUE-RAISING OBJECTIVES OF THE TAX LAWS.  SOME OF THE
FACTORS TO BE WEIGHED IN THIS BALANCE ARE REFLECTED IN THE 1965
TREASURY DEPARTMENT REPORT ON PRIVATE FOUNDATIONS: 

"PRIVATE PHILANTHROPIC ORGANIZATIONS CAN POSSESS IMPORTANT
CHARACTERISTICS WHICH MODERN GOVERNMENT NECESSARILY LACKS.  THEY MAY BE
MANY-CENTERED, FREE OF ADMINISTRATIVE SUPERSTRUCTURE, SUBJECT TO THE
READILY EXERCISED CONTROL OF INDIVIDUALS WITH WIDELY DIVERSIFIED VIEWS
AND INTERESTS.  SUCH CHARACTERISTICS GIVE THESE ORGANIZATIONS GREAT
OPPORTUNITY TO INITIATE THOUGHT AND ACTION, TO EXPERIMENT WITH NEW AND
UNTRIED VENTURES, TO DISSENT FROM PREVAILING ATTITUDES, AND TO ACT
QUICKLY AND FLEXIBLY.  PRECISELY BECAUSE THEY CAN BE INITIATED AND
CONTROLLED BY A SINGLE PERSON OR A SMALL GROUP, THEY MAY EVOKE GREAT
INTENSITY OF INTEREST AND DEDICATION OF ENERGY.  THESE VALUES, IN
THEMSELVES, JUSTIFY THE TAX EXEMPTIONS AND DEDUCTIONS WHICH THE LAW
PROVIDES FOR PHILANTHROPIC ACTIVITY. 

"PRIVATE FOUNDATIONS PLAY A SIGNIFICANT PART IN THE WORK OF
PHILANTHROPY.  WHILE THE FOUNDATION IS A RELATIVELY MODERN DEVELOPMENT,
ITS PREDECESSOR, THE TRUST, HAS ANCIENT VINTAGE.  LIKE ITS ANTECEDENT,
THE FOUNDATION PRMITS A DONOR TO COMMIT TO SPECIAL USES THE FUNDS WHICH
HE GIVES TO CHARITY.  . . . IN THESE WAYS, FOUNDATIONS HAVE ENRICHED
AND STRENGTHENED THE PLURALISM OF OUR SOCIAL ORDER. 

"PRIVATE FOUNDATIONS HAVE ALSO PRESERVED FLUIDITY AND PROVIDED
IMPETUS FOR CHANGE WITHIN THE STRUCTURE OF AMERICAN PHILANTHROPY. 
OPERATING CHARITABLE ORGANIZATIONS TEND TO ESTABLISH AND WORK WITHIN
DEFINED PATTERNS.  . . . THE ASSETS OF PRIVATE FOUNDATIONS, ON THE
OTHER HAD, ARE FREQUENTLY FREE OF COMMITMENT TO SPECIFIC OPERATING
PROGRAMS OR PROJECTS; AND THAT FREEDOM PERMITS FOUNDATIONS RELATIVE
EASE IN THE SHIFT OF THEIR FOCUS OF INTEREST AND THEIR FINANICAL
SUPPORT FROM ONE CHARITABLE AREA TO ANOTHER.  NEW VENTURES CAN BE
ASSISTED, NEW AREAS EXPLORED, NEW CONCEPTS DEVELOPED, NEW CAUSES
ADVANCED.  BECAUSE OF ITS UNIQUE FLEXIBILITY, THEN, THE PRIVATE
FOUNDATION CAN CONSTITUTE A POWERFUL INSTRUMENT FOR EVOLUTION, GROWTH,
AND IMPROVEMENT IN THE SHAPE AND DIRECTION OF CHARITY."  SENATE
COMMITTEE ON FINANCE, 89TH CONG., 1ST SESS., 12 - 13 (COMMITTEE PRINT
1965). 

/9/  THE COMMISSIONER STATES THAT THE MAJORITY OF ORGANIZATIONS
EXEMPT UNDER 501(C)(3) OPERATE AT A LOSS SO THAT NO INCOME TAX
LIABILITY WOULD RESULT IF THEIR EXEMPTIONS WERE REVOKED.  BOB JONES
UNIVERSITY V. SIMON, BRIEF FOR PETITIONER 23 N. 22. 

/10/  AS HAS BEEN NOTED, ONE OF AU'S CLAIMS IS THAT "SUBSTANTIAL"
AND "PROPAGANDA," AS THESE WORDS ARE EMPLOYED IN 501(C)(3), ARE
UNCONSTITUTIONALLY VAGUE.  THERE ARE NO CLEAR OBJECTIVE CRITERIA BY
WHICH THE COMMISSIONER DRAWS HIS CONCLUSIONS WITH RESPECT TO THESE
TERMS.  MOREOVER, THE 501(C)(3) REVOCATION IS ARRIVED AT BY THE
COMMISSIONER NOT SOLELY BY CONSTRUING THE LANGUAGE OF 501(C)(3), BUT BY
HIS ASSERTION THAT THAT SECTION 170(A)(1) AND (C)(2)(D) ARE IN PARI
MATERIA.  THUS, THE IDIOSYNCRASIES OF THE WORD "CHARITABLE" IN
170(A)(1) ARE ENGRAFTED UPON, AND ENTWINED WITH, THE "ORGANIZED AND
OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE . . . OR EDUCATIONAL
PURPOSES" STANDARD OF 501(C)(3).  THIS IS NOWHERE COMPELLED BY STATUTE,
BUT IS THE PRODUCT OF THE COMMISSIONER'S DISCRETIONARY APPLICATION AND
INTERPRETATION.     /11/  IN BOB JONES UNIVERSITY, ANTE, AT 740, THE
COURT SUGGESTS THAT SO LONG AS AN ACTION OF THE SERVICE REFLECTS "A
GOOD-FAITH EFFORT TO ENFORCE THE TECHNICAL REQUIREMENTS OF THE TAX
LAWS," THE PRESENCE OF A COLLATERAL MOTIVE DOES NOT RENDER THE ANTI
INJUNCTION STATUTE INAPPLICABLE.  I DO NOT PERCEIVE JUST WHERE THE GOOD
FAITH INQUIRY IS MADE.  IT CERTAINLY IS NOT MADE AT THE DETERMINATION
WHETHER A SUIT IS FOR THE PURPOSE OF RESTRAINING TAXES.  IT IS DOUBTFUL
THAT IT IS MADE IN DETERMINING WHETHER THERE ARE ANY CIRCUMSTANCES
UNDER WHICH THE GOVERNMENT MAY ULTIMATELY PREVAIL ON THE MERITS. 
MOREOVER, FOR ME, THERE IS A DISTINCT QUESTION AS TO THE MEANING OF THE
COURT'S PHRASE, "A GOOD-FAITH EFFORT TO ENFORCE THE TECHNICAL
REQUIREMENTS OF THE TAX LAWS."  IS INNOVATION IN EFFECTUATING SOCIAL
POLICY A GOOD-FAITH EFFORT TO ENFORCE TECHNICAL REQUIREMENTS?  IS A
THREAT TO REVOKE A UNIVERSITY'S EXEMPTION RULING MADE IN GOOD FAITH
WHEN IT RESTS ON THE PROPOSITION THAT THE INSTITUTION DOES NOT COMPLY
WITH GOVERNMENT-APPROVED ADMISSION STANDARDS? 

/12/  THE COURT ASSUMES THE READY AVAILABILITY OF AN FUTA REFUND
SUIT.  ANTE, AT 762 - 763, N. 13.  IT IS CURIOUS, HOWEVER, THAT THE
COMMISSIONER DID NOT ASSERT THIS POSSIBILITY IN THE EARLIER STAGES OF
THE LITIGATION.  IT WAS SUGGESTED, APPARENTLY, ONLY AFTER THE MAIN
BRIEFING IN THE COURT OF APPELS.  TR. OF ORAL ARG. 36 - 37.  IT IS ALSO
NOTEWORTHY THAT IN DISCUSSING THE PROBLEM FORMER COMMISSIONER THROWER
HAS STATED: 

"THERE IS NO PRACTICAL POSSIBILITY OF QUICK JUDICIAL APPEAL AT THE
PRESENT.  IF WE DENY TAX EXEMPTION OR THE BENEFIT TO THE ORGANIZATION
OF ITS DONORS HAVING THE ASSURANCE OF DEDUCTIBILITY OF CONTRIBUTIONS,
THE ORGANIZATION MUST EITHER CREATE NET TAXABLE INCOME OR OTHER TAX
LIABILITY FOR ITSELF AS A LITIGABLE ISSUE, OR FIND A DONOR WHO AS A
GUINEA PIG IS WILLING TO MAKE A CONTRIBUTION, HAVE IT DISALLOWED, AND
LITIGATE THE DISALLOWANCE."  THROWER, IRS IS CONSIDERING FAR REACHING
CHANGES IN RULING ON EXEMPT ORGANIZATIONS, 34 J. OF TAXATION 168
(1971).  WHETHER PROCEDURALLY FEASIBLE OR NOT, THERE IS SOME INDICATION
THAT SUCH SUITS ARE NOT COMMON PRACTICE. 

/13/  IN CHRISTIAN ECHOES A NONPROFIT RELIGIOUS CORPORATION SUED FOR
REFUND OF FICA TAXES IN AN AGGREGATE AMOUNT EXCEEDING $103,000 PAID
OVER SEVEN TAXABLE YEARS.  THE PURPOSE OF THE SUIT, OF COURSE, WAS TO
RECOVER THE TAXES PAID, BUT CONSTITUTIONAL CHALLENGES TO 501 (C)(3)
WERE THE BASIC LEGAL ARGUMENTS.  THERE IS NO SUGGESTION IN THE COURT'S
OPINION THAT CHRISTIAN ECHOES' PRIMARY CONCERN WAS WITH THE LOSS OF
CONTRIBUTIONS; THIS, HOWEVER, MUST HAVE BEEN OF RELATIVE IMPORTANCE. 

/14/  COMMISSIONER THROWER, IN THE ARTICLE CITED ABOVE, STATED THAT
"THE ISSUE UNDER THE BEST OF CIRCUMSTANCES COULD HARDLY COME BEFORE A
COURT UNTIL AT LEAST A YEAR AFTER THE TAX YEAR IN WHICH THE ISSUE
ARISES.  ORDINARILY, IT WOULD TAKE MUCH LONGER FOR THE CASE OF THE
ORGANIZATION'S STATUS TO BE TRIED."  34 J. OF TAXATION 168. 

THE COMMISSIONER ALSO MADE SIGNIFICANT REMARKS WITH RESPECT TO THE
NEED FOR JUDICIAL DETERMINATION OF ISSUES INVOLVED IN THIS CASE THAT
WILL BE PRECLUDED BY THE COURT'S INTERPRETATION OF 7421. 

"THIS IS AN EXTREMELY UNFORTUNATE SITUATION FOR SEVERAL REASONS. 
FIRST, IT OFFENDS MY SENSE OF JUSTICE FOR UNDUE DELAY TO BE IMPOSED ON
ONE WHO NEEDS A PROMPT DECISION.  SECOND, IN PRACTICAL EFFECT IT GIVES
A GREATER FINALITY TO IRS DECISIONS THAN WE WOULD WANT OR CONGRESS
INTENDED.  THIRD, IT INHIBITS THE GROWTH OF A BODY OF CASE LAW
INTERPRETIVE OF THE EXEMPT ORGANIZATION PROVISIONS THAT COULD GUIDE THE
IRS IN ITS FURTHER DELIBERATIONS."  IBID. 

/15/  SEE NOTE, PROCEDURAL DUE PROCESS LIMITATIONS ON THE SUSPENSION
OF ADVANCED ASSURANCE OF DEDUCTIBILITY, 47 S. CAL. L. REV. 427 (1974),
FOR A DETAILED DISCUSSION OF CONSTITUTIONAL CONSIDERATIONS OF IRS
LETTER-RULING REVOCATION WITHOUT A HEARING. 

/16/  THE CONTENTION THAT THE REMEDIES SUGGESTEDBY THE COMMISSIONER
ARE INADEQUATE IS SUPPORTED BY MOST OF THE COMMENTATORS WHO HAVE
ADDRESSED THE ISSUE SINCE THESE CASES WERE DECIDED IN THE COURTS OF
APPEALS.  SEE NOTE, CONSTITUTIONAL IMPLICATIONS OF WITHDRAWAL OF
FEDERAL TAX BENEFITS FROM PRIVATE SEGREGATED SCHOOLS, 33 MD. L. REV.
51, 53 (1972); NOTE, THE LOSS OF PRIVILEGED TAX STATUS AND SUITS TO
RESTRAIN ASSESSMENTS, 30 WASH. & LEE L. REV. 573, 590 (1973); COMMENT,
AVOIDING THE ANTI-INJUNCTION STATUTE IN SUITS RO ENJOIN TERMINATION OF
TAX-EXEMPT STATUS, 14 WM. & MARY L. REV. 1014, 1025 (1973); RECENT
DEVELOPMENT, 73 COL. L. REV. 1502, 1513 - 1514 (1973); NOTES, 46 TEMP. 
L. Q. 596, 601 (1973). 

ASSISTANT ATTORNEY GENERAL CRAMPTON ARGUED THE CAUSE FOR
PETITIONER.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL BORK,
RICHARD B. STONE, STUART A. SMITH, ERNEST J. BROWN, GRANT W. WIPRUD,
AND LEONARD J. HENZKE, JR. 

ALAN B. MORRISON AND FRANKLIN C. SALISBURY ARGUED THE CAUSE AND
FILED A BRIEF FOR RESPONDENT.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY H. DAVID
ROSENBLOOM, HARRY J. RUBIN, JOHN HOLT MYERS, SAMUEL RABINOVE, AND
MORTIMER M. CAPLIN FOR THE COUNCIL ON FOUNDATIONS, INC., AND BY THOMAS
F. FIELD FOR TAX ANALYSTS AND ADVOCATES. 
..END :






















DILLARD V. VIRGINIA INDUSTRIAL COMM'N, 416 U.S. 783 


       DILLARD ET AL. V. INDUSTRIAL COMMISSION OF VIRGINIA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF VIRGINIA

   NO. 73 - 5412.  AUGUED MARCH 26, 1974--DECIDED MAY 15, 1974;
(347 F. SUPP. 71, VACATED AND REMANDED.) 


    IN THIS ACTION (BROUGHT INITIALLY BY APPELLANT DILLARD AND IN

  WHICH APPELLANT WILLIAMS WAS ALLOWED TO INTERVENE) WILLIAMS

  CLAIMED THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

  PREVENTED VIRGINIA FROM PERMITTING SUSPENSION OF WORKMEN'S

  COMPENSATION BENEFITS AS A RESULT OF A CLAIMED CHANGE IN

  CONDITION WITHOUT NOTICE TO THE CLAIMANT AND A PRIOR ADVERSARY

  HEARING.  THE DISTRICT COURT REJECTED THE CONSTITUTIONAL CLAIM ON

  THE MERITS.  HELD:  IF, AS INDICATED IN THE BRIEFS AND ORAL

  ARGUMENTS IN THIS COURT, STATE LAW PERMITS A CLAIMANT WHOSE

  BENEFITS HAVE BEEN SUSPENDED TO HAVE THEM REINSTATED BY THE STATE

TRIAL COURTS, WHICH ACT IN A PURELY MINISTERIAL CAPACITY, PENDING

  A FULL ADMINISTRATIVE HEARING BEFORE THE STATE INDUSTRIAL

  COMMISSION ON THE MERITS OF HIS CLAIM, IT WAS PROBABLY

  UNNECESSARY TO ADDRESS THE FEDERAL CONSTITUTIONAL QUESTION. 

  ACCORDINGLY, THE CASE MUST BE REMANDED TO THE DISTRICT COURT FOR

  RECONSIDERATION.  PP. 784 - 798. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN,

  AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING

  OPINION, POST, P. 799. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

APPELLANTS SEEK TO ESTABLISH THAT, UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, VIRGINIA MAY NOT PERMIT THE SUSPENSION OF
WORKMEN'S COMPENSATION BENEFITS WITHOUT A PRIOR ADVERSARY HEARING.  A
THREE-JUDGE UNITED STATES DISTRICT COURT, OVER ONE DISSENT, REJECTED
APPELLANTS' CONSTITUTIONAL ARGUMENTS.  347 F. SUPP. 71 (ED VA. 1972). 
WE NOTED PROBABLE JURISDICTION.  414 U.S. 1110 (1973).  ALTHOUGH THE
PARTIES HAVE FOCUSED PRIMARILY ON THE DUE PROCESS ISSUE, THE BRIEFS AND
ORAL ARGUMENTS HAVE INDICATED THAT UNDER STATE LAW A CLAIMANT WHOSE
WORKMEN'S COMPENSATION BENEFITS HAVE BEEN SUSPENDED MAY HAVE THEM
REINSTATED BY A STATE TRIAL COURT PENDING A FULL ADMINISTRATIVE HEARING
ON THE MERITS OF HIS CLAIM.  IF THIS IS AN ACCURATE READING OF STATE
LAW, IT IS IN ALL PROBABILITY UNNECESSARY TO ADDRESS ANY QUESTIONS OF
FEDERAL CONSTITUTIONAL LAW IN THIS CASE.  ACCORDINGLY, THE CASE MUST BE
REMANDED TO THE DISTRICT COURT FOR RECONSIDERATION. 

        I 

THIS LITIGATION HAS CENTERED ON THE ROLE OF THE INDUSTRIAL
COMMISSION OF VIRGINIA (COMMISSION) IN OVERSEEING RELATIONSHIPS BETWEEN
WORKMEN'S COMPENSATION CLAIMANTS AND EMPLOYERS OR THE EMPLOYERS'
INSURANCE COMPANIES.  ALTHOUGH THE VIRGINIA SYSTEM FOR WORKMEN'S
COMPENSATION IS CONTROLLED IN ALL SIGNIFICANT RESPECTS BY AN EXTENSIVE
STATUTORY SCHEME REFERRED TO AS THE ACT, V. CODE ANN.  65.1 - 1 ET SEQ.
(1973 AND SUPP. 1973), /1/  IT OPERATES IN A LARGELY VOLUNTARY MANNER
THROUGH MEMORANDA OF AGREEMENT BETWEEN DISABLED WORKMEN AND EMPLOYERS
OR INSURANCE COMPANIES.  COMPENSATION IS PAID OUT OF PRIVATE FUNDS, IN
SOME CASES THROUGH SELF-INSURANCE BY EMPLOYERS BUT FOR THE MOST PART
THROUGH COVERAGE BY PRIVATE INSURANCE COMPANIES.  ALL AGREEMENTS
BETWEEN EMPLOYEES AND EMPLOYERS OR INSURANCE COMPANIES MUST BE APPROVED
BY THE COMMISSION, WHICH MAY EXTEND ITS IMPRIMATUR "ONLY WHEN THE
COMMISSION, OR ANY MEMBER THEREOF, IS CLEARLY OF THE OPINION THAT THE
BEST INTERESTS OF THE EMPLOYEE OR HIS DEPENDENTS WILL BE SERVED THEREBY
. . . ."  65.1 - 93. 

IN MOST INSTANCES THE PARTIES AGREE VOLUNTARILY ON ENTITLEMENT TO
BENEFITS.  /2/  WHEN THIS DOES NOT OCCUR, THE COMMISSION WILL GRANT A
HEARING TO RESOLVE THE DISAGREEMENT, 65.1 - 9J, AND WILL MAKE AN AWARD
IF FOUND TO BE DUE.  65.1 - 96.  THE COMMISSION'S AWARDS ARE SUBJECT TO
REVIEW BY APPEAL TO THE VIRGINIA SUPREME COURT AND, IF UNCHALLENGED,
ARE CONCLUSIVE UNTIL CHANGED BY THE COMMISSION.  65.1 - 98.  /3/  THE
COMMISSION HAS NO ENFORCEMENT POWER PER SE.  RATHER, THE ACT PROVIDES: 

     "ANY PARTY IN INTEREST MAY FILE IN THE CIRCUIT OR CORPORATION

  COURT OF THE COUNTY OR CITY IN WHICH THE INJURY OCCURRED, OR IF

  IT BE IN THE CITY OF RICHMOND THEN IN THE CIRCUIT OR LAW AND

  EQUITY COURT OF SUCH CITY, A CERTIFIED COPY OF A MEMORANDUM OF

  AGREEMENT APPROVED BY THE COMMISSION, OR OF AN ORDER OR DECISION

  OF THE COMMISSION, OR OF AN AWARD OF THE COMMISSION UNAPPEALED

  FROM, OR OF AN AWARD OF THE COMMISSION AFFIRMED UPON APPEAL,

  WHEREUPON THE COURT, OR THE JUDGE THEREOF IN VACATION, SHALL

RENDER JUDGMENT IN ACCORDANCE THEREWITH AND NOTIFY THE PARTIES. 

  SUCH JUDGMENT SHALL HAVE THE SAME EFFECT, AND ALL PROCEEDINGS IN

  RELATION THERETO SHALL THEREAFTER BE THE SAME, AS THOUGH SUCH

  JUDGMENT HAD BEEN RENDERED IN A SUIT DULY HEARD AND DETERMINED BY

  THE COURT.  . . ."  65.1 - 100. 

THE STATE COURTS HAVE CONSTRUED THEIR ENFORCEMENT DUTY UNDER 65.1 -
100 AS PURELY MINISTERIAL.  THEY DO NOT INQUIRE INTO WHETHER A
CLAIMANT'S CONDITION CONTINUES TO JUSTIFY COMPENSATION.  RATHER, THEY
SIMPLY ENFORCE AGREEMENTS AND AWARDS THAT HAVE BEEN APPROVED AND NOT
FORMALLY RESCINDED BY THE COMMISSION.  /4/  THUS, A WORKMEN'S
COMPENSATION CLAIMANT IN VIRGINIA HAS AT HIS DISPOSAL A READY MECHANISM
IN THE STATE TRIAL COURTS TO ENFORCE ANY FACIALLY VALID AWARD OR
AGREEMENT.  SINCE JUDICIAL ENFORCEMENT IS A MINISTERIAL ACT, THIS
RELIEF APPEARS TO BE AVAILABLE WITH A MINUMUM OF DELAY OR PROCEDURAL
DIFFICULTY. 

TERMINATION OF BENEFITS DUE TO A CHANGE IN A CLAIMANT'S CONDITION,
LIKE THE COMMENCEMENT OF BENEFITS IN THE FIRST INSTANCE, IS A PRODUCT
OF VOLUNTARY AGREEMENT IN MOST CASES.  BUT WHEN A DISPUTE ARISES OVER A
CLAIMANT'S CONDITION AND HIS CONTINUED ENTITLEMENT TO BENEFITS, THE
ONLY AVENUE OPEN TO AN EMPLOYER FOR EXTINGUISHING A CLAIMANT'S
ENFORCEMENT RIGHTS UNDER 65.1 - 100 OF THE ACT APPEARS IN 65.1 - 99. 
SEE BRISTOL DOOR CO. V. HINKLE, 157 VA. 474, 161 S.E. 902 (1932).  THIS

     "UPON ITS OWN MOTION OR UPON THE APPLICATION OF ANY PARTY IN

  INTEREST, ON THE GROUND OF A CHANGE IN CONDITION, THE INDUSTRIAL

  COMMISSION MAY REVIEW ANY AWARD AND ON SUCH REVIEW MAY MAKE AN

  AWARD ENDING, DIMINISHING OR INCREASING THE COMPENSATION

  PREVIOUSLY AWARDED . . . . 

     ##HC 788 NO SUCH REVIEW SHALL AFFECT SUCH AWARD AS REGARDS ANY

  MONEYS PAID . . . ."  VA. CODE ANN. 65.1 - 99 (1973).  /5/

ALTHOUGH IT MAY BE INDISPUTABLE THAT A CLAIMANT IS NO LONGER ENTITLED
TO BENEFITS DUE TO A CHANGE IN HIS CONDITION, IF THE CLAIMANT REFUSES
TO TERMINATE VOLUNTARILY AN AWARD OR AGREEMENT, AN EMPLOYER OR INSURER
APPEARS TOP HAVE NO DEFENSE AGAINST A STATE COURT ENFORCEMENT ACTION
UNTIL THERE IS A FORMAL DETERMINATION BY THE COMMISSION UNDER THIS
S.E. 2D 453 (1959).  /6/  IF AN EMPLOYER OR INSURANCE COMPANY MEETS THE
REQUIREMENTS ESTABLISHED BY THE COMMISSION FOR INVOKING ITS REVIEW
UNDER THIS SECTION, THE COMMISSION IN DUE COURSE WILL CONDUCT A
HEARING, WITH NOTICE AND THE RIGHT TO PARTICIPATE EXTENDED TO ALL
PARTIES.  /7/  AT SUCH A HEARING, THE EMPLOYER OR INSURER BEARS THE
BURDEN OF PROVING A CHANGE IN A CLAIMANT'S CONDITION THAT JUSTIFIES
RESCISSION OF AN AWARD OR AGREEMENT.  E.G., VIRGINIA OAK FLOORING CO.
V. CHRISLEY, 195 VA. 850, 80 S.E. 2D 537 (1954); J.A. FOUST COAL CO. V.
MESSER, 195 VA. 762, 80 S.E. 2D 533 (1954). 

THE LAST SENTENCE OF THE ABOVE QUOTATION FROM 65.1 - 99 PREVENTS AN
EMPLOYER OR INSURANCE COMPANY FROM RECOVERING BENEFITS ERRONEOUSLY PAID
PRIOR TO THE COMMISSION'S FORMAL TERMINATION OF AN AWARD OR AGREEMENT. 
SEE GRAY V. UNDERWOOD BROS., 164 VA. 344, 182 S.E. 547 (1935). 
ACCORDINGLY, AN EMPLOYER OR INSURER WITH CAUSE TO BELIEVE THAT A
CLAIMANT IS NO LONGER ENTITLED TO BENEFITS HAS AN OBVIOUS INCENTIVE
UNILATERALLY TO CEASE PAYMENT AT THE TIME IT SEEKS A 65.1 - 99 HEARING
BEFORE THE COMMISSION.  IF THE COMMISSION ULTIMATELY HOLDS IN ITS
FAVOR, THE EMPLOYER OR INSURER WILL NOT BE REQUIRED TO PAY ANY FURTHER
BENEFITS, AND IT WILL HAVE PROTECTED ITSELF AGAINST UNMERITED PAYMENTS
IN THE PERIOD PRIOR TO THE COMMISSION'S FULL HEARING.  IF THE
COMMISSION RULES AGAINST IT, IT WILL BE REQUIRED TO REINSTATE BENEFITS
RETROACTIVELY TO THE DATE OF THE APPLICATION FOR A HEARING, BUT AT
LEAST IT WILL HAVE AVOIDED PAYING BENEFITS FOR WHICH THERE WAS NO TRUE
LEGAL OBLIGATION. 

IN ORDER TO POLICE THIS TENDENCY OF EMPLOYERS AND INSURERS TO
TERMINATE FIRST AND LITIGATE LATER, THE COMMISSION PROMULGATED ITS RULE
13.  SEE MANCHESTER BD. & PAPER CO. V. PARKER, SUPRA.  /8/  RULE 13
SETS FORTH CERTAIN REQUIREMENTS THAT AN EMPLOYER OR INSURER MUST MEET,
WITH PRECISION, SEE IBID., BEFORE IT CAN OBTAIN THE 65.1 - 99 HEARING
WHICH IS A PREREQUISITE TO FORMAL TERMINATION OF AN AWARD OR AGREEMENT
ON THE GROUND OF CHANGE IN CONDITION.  /9/  FOR EXAMPLE, THE RULE
REQUIRES EMPLOYERS AND INSURERS TO CONTINUE BENEFITS UP TO A DEFINED
DATE.  AND SINCE APRIL 1, 1972, THE RULE HAS IMPOSED THE FOLLOWING
REQUIREMENTS ON SUCH APPLICATIONS: 

"ALL APPLICATIONS BY AN EMPLOYER OR INSURER SHALL BE UNDER OATH AND
SHALL NOT BE DEEMED FILED AND BENEFITS SHALL NOT BE SUSPENDED UNTIL THE
SUPPORTING EVIDENCE WHICH CONSTITUTES A LEGAL BASIS FOR CHANGING THE
EXISTING AWARD SHALL HAVE BEEN REVIEWED BY THE COMMISSION, OR SUCH OF
ITS EMPLOYEES AS MAY BE DESIGNATED FOR THAT PURPOSE, AND A
DETERMINATION MADE THAT PROBABLE CAUSE EXISTS TO BELIEVE THAT A CHANGE
IN CONDITION HAS OCCURRED." 

THUS, UNDER RULE 13, AS AMENDED, AN EMPLOYER OR INSURER MUST PAY
BENEFITS UP TO A CERTAIN DATE, MUST MAKE APPLICATION UNDER OATH, AND
MUST SUBMIT "SUPPORTING EVIDENCE WHICH CONSTITUTES A LEGAL BASIS FOR
CHANGING THE EXISTING AWARD . . . ."  IF THESE REQUIREMENTS ARE MET AND
IF THE COMMISSION FINDS THAT "PROBABLE CAUSE EXISTS TO BELIEVE THAT A
CHANGE IN CONDITION HAS OCCURRED . . . ,"  THE EMPLOYER OR INSURER WILL
BE ACCORDED A HEARING THAT MAY LEAD TO RESCISSION OF THE PRIOR AWARD OR
AGREEMENT.  IF THE RULE 13 REQUIREMENTS ARE NOT MET, THE REQUEST FOR A
HEARING WILL BE DENIED, AND THE AWARD OR AGREEMENT AT ISSUE WILL REMAIN
SUBJECT TO ENFORCEMENT IN THE STATE COURTS. 

        II 

APPELLANT DILLARD WAS THE ORIGINAL NAMED PLAINTIFF IN THIS CLASS
ACTION UNDER 42 U.S.C. 1983.  HE CONTENDED THAT THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT PREVENTED VIRGINIA FROM PERMITTING THE
SUSPENSION OF WORKMEN'S COMPENSATION BENEFITS WITHOUT NOTICE TO THE
CLAIMANT AND AN ADVERSARY HEARING AT THE TIME THE COMMISSION MAKES A
PROBABLE CAUSE DETERMINATION PURSUANT TO RULE 13.  A THREE-JUDGE UNITED
STATES DISTRICT COURT, OVER ONE DISSENT, REJECTED THIS ARGUMENT ON THE
MERITS.  347 F. SUPP. 71 (ED VA. 1972).  DILLARD APPEALED, BUT THEN
SETTLED HIS CLAIM, AND WE REMANDED THE CASE FOR A DETERMINATION OF
MOOTNESS.  409 U.S. 238 (1972).  IN AN UNREPORTED ORDER, THE DISTRICT
COURT SUBSEQUENTLY PERMITTED THE INTERVENTION OF APPELLANT WILLIAMS AND
REINSTATED ITS PUBLICHED OPINION.  WILLIAMS THEN APPEALED, BRINGING UP
THE DUE PROCESS ARGUMENTS INITIALLY ESPOUSED BY DILLARD. 

APPELLANT WILLIAMS WAS INJURED IN THE COURSE OF EMPLOYMENT IN APRIL
1972.  IN MAY 1972, THE COMMISSION APPROVED AN AGREEMENT BETWEEN
WILLIAMS AND HIS EMPLOYER'S INSURANCE COMPANY, ONE OF THE APPELLEES
HEREIN, FOR THE PAYMENT OF WEEKLY COMPENSATION BENEFITS.  IN OCTOBER
1972, THE INSURANCE COMPANY APPLIED UNDER RULE 13 TO THE COMMISSION FOR
A HEARING TO DETERMINE WHETHER WILLIAMS' DISABILITY HAD ENDED. 
SIMULTANEOUSLY, THE INSURER DISCONTINUED PAYMENTS.  WITHIN A FEW DAYS
THE COMMISSION MADE AN EX PARTE DETERMINATION THAT PROBABLE CAUSE
EXISTED TO BELIEVE THAT A CHANGE IN WILLIAMS' CONDITION HAD OCCURRED. 
AT THIS POINT, WILLIAMS MADE NO EFFORT TO PETITION A STATE COURT UNDER
65.1 - 100 OF THE ACT TO REINSTATE BENEFITS PENDING THE COMMISSION'S
FULL HEARING.  IN DECEMBER 1972, THE COMMISSION CONDUCTED AN ADVERSARY
HEARING, CONCLUDED THAT THE INSURANCE COMPANY HAD NOT MET ITS BURDEN OF
PROOF, AND REINSTATED BENEFITS.  ON APRIL 17, 1973, THE INSURANCE
COMPANY AGAIN PETITIONED THE COMMISSION CLAIMING A CHANGE IN WILLIAMS'
CONDITION.  THE COMMISSION ONCE MORE FOUND PROBABLE CAUSE ON AN EX
PARTE BASIS, AND THE COMPANY FOR THE SECOND TIME TERMINATED BENEFITS. 
WILLIAMS AGAIN DID NOT RESORT TO THE STATE TRIAL COURTS FOR AN
ENFORCEMENT ORDER.  APPROXIMATELY TWO MONTHS LATER, THE DISTRICT COURT
PERMITTED WILLIAMS TO INTERVENE IN THIS LAWSUIT AND, AS NOTED,
REINSTATED ITS PUBLISHED OPINION.  WILLIAMS THEN BROUGHT THIS APPEAL. 
/10/ 

WILLIAMS' CONSTITUTIONAL ATTACK ON THE VIRGINIA SYSTEM FOR
SUSPENDING WORKMEN'S COMPENSATION BENEFITS IS PREMISED ON THE
ASSUMPTION THAT RULE 13, AS AMENDED, PERMITS AN EMPLOYER OR INSURER TO
SHIELD ITSELF FROM A STATE COURT ENFORCEMENT SUIT UNDER 65.1 - 100 OF
THE ACT IN THE INTERIM BETWEEN A PROBABLE CAUSE DETERMINATION BY THE
COMMISSION AND THE COMMISSION'S ULTIMATE FULL HEARING UNDER 65.1 - 99
OF THE ACT.  WILLIAMS IN ESSENCE READS THE PHRASE OF RULE 13 PROVIDING
THAT "BENEFITS SHALL NOT BE SUSPENDED" PRIOR TO MEETING THE
REQUIREMENTS OF THE RULE AS MEANING THAT BENEFITS MAY SUCCESSFULLY BE
SUSPENDED ONCE THOSE REQUIREMENTS HAVE BEEN MET.  IF THIS READING OF
RULE 13 IS INCORRECT, THE COMPLEXION OF THIS CASE CHANGES DRAMATICALLY,
BECAUSE IT IS THEN WITHIN THE POWER OF A CLAIMANT TO REINSTATE BENEFITS
SIMPLY BY PETITIONING A STATE TRIAL COURT TO PERFORM A MINISTERIAL
DUTY.  IT MAY WELL BE THAT THIS PERFUNCTORY ENFORCEMENT POWER IS SO
READILY AVAILABLE THAT A CLAIMANT COULD RENDER ANY SUSPENSION OF
BENEFITS DE MINIMIS.  IF SO, THOSE IN APPELLANTS'  CLASS MAY NOT BE
ABLE TO ESTABLISH A CONSTITUTIONALLY SIGNIFICANT INJURY UNDER ANY
READING OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

EVERY INDICATION IN THE RECORD AND IN THE STATE AUTHORITIES IS THAT
WILLIAMS HAD AT HIS DISPOSAL A STATE COURT ENFORCEMENT FIGHT THAT HE
SIMPLY FAILED TO UTILIZE.  SEE N. 4, SUPRA.  AS THE COMMISSION DECLARED
IN ITS MOTION TO DISMISS BEFORE THE DISTRICT COURT: 

     "VIRGINIA'S STATUTORY FRAMEWORK DOES NOT AUTHORIZE THE

  TERMINATION OF BENEFITS AS ALLEGED BY PLAINTIFF, IT PERMITS ONLY

  THE INITIATION OF A PROCEDURE BY WHICH BENEFITS MAY ULTIMATELY BE

  TERMINATED.  SHOULD PLAINTIFF BE DISSATISFIED WITH THE TEMPORARY

  CESSATION OF BENEFITS PENDING AN ADMINISTRATIVE HEARING, HE IS

  ENTITLED BY THE PROVISIONS OF 65.1 - 100 TO REDUCE HIS AWARD TO

 JUDGMENT IN AN APPROPRIATE COURT OF RECORD AND COMPEL THE

  RESUMPTION OF BENEFITS.  IT SHOULD BE NOTED THAT IN SUCH A CASE

  THE COURT HAS NO DISCRETION AND MUST ENTER JUDGMENT AGAINST THE

  EMPLOYER OR HIS INSURER."  (EMPHASIS IN ORIGINAL; CITATIONS

  OMITTED.) 

ONE OF THE APPELLEES MAKES THE SAME POINT IN ITS BRIEF, /11/  AND
WILLIAMS' COUNSEL CONCEDED AT ORAL ARGUMENT THAT, IT READ LETERALLY,
65.1 - 100 OF THE ACT PERMITS NO OTHER RESULT.  /12/  COUNSEL ATTEMPTED
TO OVERCOME THIS CONCESSION BY ARGUING THAT THE VIRGINIA COURTS HAVE
NOT INTERPRETED RULE 13 RECENTLY AND THAT THEY MIGHT TODAY HOLD THAT
THE RULE OVERRIDES THE LANGUAGE OF 65.1 - 100.  /13/  THIS ARGUMENT
PLAINLY HAS NO MERIT, SINCE THE COMMISSION IS WITHOUT POWER TO
PROMULGATE A RULE THAT WOULD REPEAL A SECTION OF THE ACT.  /14/
MOREOVER, IT IS OBVIOUS THAT THE COMMISSION HAD NO SUCH PURPOSE.  RULE
13 WAS DESIGNED TO PROTECT EMPLOYEES, SEE MANCHESTER BD. & PAPER CO. V.
PARKER, 201 VA. 328, 111 S.E. 2D 453 (1959), NOT TO DEPRIVE THEM OF
RIGHTS EXISTING UNDER THE ACT.  IT ESTABLISHES BARRIERS THAT AN
EMPLOYER OR INSURER MUST SURMOUNT BEFORE IT MAY OBTAIN THE 65.1 - 99
HEARING THAT IS A PREREQUISITE TO EXTINGUISHING A CLAIMANT'S RIGHT TO
ENFORCE AN AWARD OR AGREEMENT IN STATE COURT.  THE RULE IS DESIGNED TO
SERVE AS A SCREENING DEVICE FOR ELIMINATING OBVIOUSLY UNMERITORIOUS
APPLICATIONS FOR HEARINGS FILED BY INSURERES AND EMPLOYERS.  /15/  IT
IS NOT AN AUTHORIZATION FOR AN EMPLOYER OR INSURER TO SUSPEND PAYMENTS
WITH ASSURANCE THAT A CLAIMANT MAY NOT HAVE THEM REINSTATED UNDER 65.1
100 OF THE ACT. 

THE DISTRICT COURT ITSELF NOTED THAT RULE 13 PROBABLY DOES NOT
PERMIT AN EMPLOYER OR INSURER TO ESCAPE 65.1 - 100 OF THE ACT.  /16/
IT REACHED APPELLANTS' FEDERAL CONSTITUTIONAL CLAIM ONLY BY ASSUMING,
ARGUENDO, "THAT THE RULE IS AUTHORITY FOR THE EMPLOYER OR INSURER TO
TERMINATE PAYMENTS . . . ."  347 F. SUPP., AT 75.  BASED ON WHAT HAS
BEEN BROUGHT TO OUR ATTENTION AND OUR REVIEW OF STATE LAW, SUCH AN
ASSUMPTION IN ALL LIKELIHOOD WOULD BE INACCURATE.  /17/  IN ANY EVENT,
THAT COURT MUST RESOLVE ANY DOUBTS ON THE ISSUE BEFORE REACHING
APPELLANTS' FEDERAL CLAIM.  IF THERE IS SIGNIFICANT DOUBT ABOUT THE
STATUS OF STATE LAW, THE COURT SHOULD CONSIDER ABSTENTION, AS THE STATE
LAW QUESTION MAY WELL BE DISPOSITIVE.  E.G., LAKE CARRIERS' ASSN. V.
MACMULLAN, 406 U.S. 498 (1972).  IF, AS APPEARS TO BE THE CASE, STATE
LAW CLEARLY PROVIDED WILLIAMS AN ADEQUATE STATE COURT REMEDY HE DID NOT
PURSUE, THEN THE COURT WILL BE PRESENTED WITH A WHOLLY DIFFERENT ISSUE
FROM THE ONE IT DECIDED.  ASSUMING IT IS ALSO ESTABLISHED THAT THE
COMMISSION'S RULE 13 PROCEDURES ARE NECESSARILY EX PARTE, /18/  THEN
THE ONLY QUESTION IS WHETHER THE INTERRUPTION, IF ANY, OF BENEFITS
BETWEEN THE TIME OF SUSPENSION AND THE TIME A CLAIMANT OBTAINS
REINSTATEMENT OF BENEFITS BY PETITIONING THE STATE COURTS IS OF ANY
CONTROLLING SIGNIFICANCE.  IF THE COURT DETERMINES THAT A CLAIMANT AS A
GENERAL RULE MAY OBTAIN REINSTATEMENT OF BENEFITS WITHOUT UNDUE DELAY
FOLLOWING A FINDING OF PROBABLE CAUSE BY THE COMMISSION UNDER RULE 13,
THEN THE COURT SHOULD DISMISS THE COMPLAINT. 

WE INDICATE NO VIEW ON THE QUESTION DECIDED BY TEH DISTRICT COURT-
WHETHER THE SUSPENSION OF BENEFITS WITHOUT NOTICE AND AN ADVERSARY
HEARING DENIES DUE PROCESS OF LAW, WHERE THE FUNDS AT ISSUE ARE
PRIVATE, NOT PUBLIC, WHERE THE STATE REQUIRES A FINDING OF PROBABLE
CAUSE AND OTHER PROCEDURAL SAFEGUARDS SHORT OF A PRIOR ADVERSARY
HEARING, AND WHERE A FULL HEARING FOLLOWS SUSPENSION OF BENEFITS BY A
PERIOD ON THE AVERAGE OF ONE MONTH.  THE JUDGMENT IS VACATED, AND THE
CASE IS REMANDED FOR RECONSIDERATION IN ACCORDANCE WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE ACT DEFINES THE RELEVANT EMPLOYMENT RELATIONSHIPS, 65.1 - 3
TO 65.1 - 5, TYPES OF COMPENSABLE DISABILITIES, 65.1 - 7 AND 65.1 - 46,
LEVELS OF COMPENSATION, 65.1 - 54 TO 65.1 - 57, 65.1 - 65 TO 65.1 -
65.1, AND 65.1 - 70 TO 65.  1 - 71, AND THE LIKE.  PARTICIPATION IN THE
VIRGINIA SYSTEM IS MANDATORY FOR ALL EMPLOYEES AND EMPLOYERS COVERED BY
THE ACT.  65.1 - 23, AS AMENDED.  THE ACT HAS BEEN IN FORCE SINCE
1918.  ITS HISTORY AND GENERAL STRUCTURE ARE DESCRIBED IN THE DISTRICT
COURT'S OPINION.  SEE 347 F. SUPP. 71, 72 - 73 (ED VA. 1972). 

/2/  AN AMICUS BRIEF INDICATES THAT IN THE YEARS 1967 TO 1971
APPROXIMATELY 95% OF ALL CLAIMS FOR WORKMEN'S COMPENSATION WERE
RESOLVED BY VOLUNTARY AGREEMENT.  BRIEF FOR AMERICAN INSURANCE
ASSOCIATION ET AL. 10. 

/3/  THE VIRGINIA SUPREME COURT ACCORDS SUBSTANTIAL WEIGHT TO THE
COMMISSION'S FINDINGS OF FACT, E.G., LEWHITE CONSTR.  CO. V. DUNN, 211
VA. 279, 176 S.E. 2D 809 (1970), AND RESTRICTS ITS REVIEW PRIMARILY TO
QUESTIONS OF LAW.  CF. BROWN V. FOX, 189 VA. 509, 54 S.E. 2D 109
(1949). 

/4/  SEE RICHMOND CEDAR WORKS V. HARPER, 129 VA. 481, 492 - 493, 106
S.E. 516, 520 (1921):  "SECTION 62 (THE PREDECESSOR TO 65.1 - 100 OF
THE ACT) WAS CLEARLY ENACTED FOR THE PURPOSE OF PROVIDING A MEANS NOT
ONLY OF ENFORCING AN AWARD WHICH HAD BEEN AFFIRMED ON . . . APPEAL, BUT
ALSO ALL OTHER FINAL AWARDS OF THE COMMISSION FROM WHICH THERE HAD BEEN
NO APPEAL, AS WELL AS ALL AGREEMENTS BETWEEN THE PARTIES APPROVED BY
THE COMMISSION.  WHEN THIS SECTION IS INVOKED, HOWEVER, THE RIGHTS OF
THE CLAIMANTS HAVE ALREADY BEEN ESTABLISHED.  THE PROCEEDING THEN
RESEMBLES A MOTION UNDER OUR STATUTE FOR EXECUTION UPON A FORTHCOMING
OR DELIVERY BOND.  . . . (ALL OF THE RIGHTS OF THE PARTIES HAVING BEEN
PREVIOUSLY LITIGATED AND DETERMINED, THE COURT IS REQUIRED TO RENDER
JUDGMENT IN ACCORDANCE EITHER WITH (A) THE AGREEMENT OF THE PARTIES,
WHICH HAS BEEN APPROVED BY THE COMMISSION, (B) AN AWARD OF THE
COMMISSION WHICH HAS NOT BEEN APPEALED FROM, OR (C) AN AWARD OF THE
COMMISSION WHICH HAS BEEN PREVIOUSLY AFFIRMED UPON APPEAL.  AT THIS
STAGE OF THE PROCEEDING, THE COURT IS VESTED WITH NO DISCRETION; THE
STATUTE IS MANDATORY, AND THE REFUSAL TO RENDER SUCH JUDGMENT AS THAT
THE COURT UNDER SECTION 62 IN RENDERING JUDGMENT SO THAT EXECUTION MAY
BE HAD, IS THE EXERCISE OF A MINISTERIAL FUNCTION, AND THE MERE METHOD
PROVIDED BY THE LEGISLATURE FOR ENFORCING THE COLLECTION BY LEGAL
PROCESS OF THE AMOUNT ALREADY LEGALLY ASCERTAINED TO BE DUE . . . ." 
ACCORD, PARRIGEN V. LONG, 145 VA. 637, 134 S.E. 562 (1926). 

/5/  ALTHOUGH 65.1 - 99 REFERS SPECIFICALLY TO AWARDS, IT HAS BEEN
INTERPRETED AS APPLYING ALSO TO VOLUNTARY AGREEMENTS THAT HAVE BEEN
APPROVED BY THE COMMISSION.  SEE MANCHESTER BD. & PAPER CO. V. PARKER,
201 VA. 328, 111 S.E. 2D 453 (1959). 

/6/  IN THE MANCHESTER CASE, A CLAIMANT AND AN INSURANCE COMPANY
ENTERED INTO AN AGREEMENT TO PAY BENEFITS, WHICH THE COMMISSION
APPROVED.  THE EMPLOYEE THEN RETURNED TO WORK, RENDERING HIMSELF
TECHNICALLY INELIGIBLE FOR BENEFITS.  THE INSURANCE COMPANY SUSPENDED
PAYMENTS AND COMMENCED PROCEEDINGS LEADING TO A DETERMINATION UNDER
WHAT IS NOW 65.1 - 99 OF THE ACT, BUT IT FAILED TO ADHERE PRECISELY TO
THE REQUIREMENTS OF THE COMMISSION UNDER THAT SECTION.  ONE YEAR AFTER
THE EMPLOYEE RETURNED TO WORK, THE COMMISSION REFUSED TO RESCIND THE
AGREEMENT, CONCLUDING THAT THE INSURANCE COMPANY HAD FAILED TO COMPLY
WITH 65.1 - 99 AS IMPLEMENTED BY THE COMMISSION.  ON APPEAL, THE
VIRGINIA SUPREME COURT AFFIRMED.  IT HELD THAT 65.1 - 99 WAS THE
EXCLUSIVE STATUTORY MEANS FOR RESCINDING AN AGREEMENT APPROVED BY THE
COMMISSION AND THAT EMPLOYERS AND INSURANCE COMPANIES FAILED TO FOLLOW
THAT SECTION AT THEIR OWN RISK, WITHOUT REGARD TO THE ACTUAL STATUS OF
A CLAIMANT. 

/7/  THERE IS NO DISPUTE IN THE INSTANT CASE THAT THE FULL HEARING
THE COMMISSION ULTIMATELY CONDUCTS BEFORE IT FORMALLY TERMINATES AN
AWARD OR AGREEMENT UNDER 65.1 - 99 OF THE ACT SATISFIES THE
REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
APPELLANTS' ATTACK HAS BEEN DIRECTED ONLY AT SUSPENSIONS OF BENEFITS
PRIOR TO THE COMMISSION'S FINAL HEARING. 

/8/  "THE REASON FOR THE RULE IS STATED IN THE OPINION OF THE
COMMISSION AS FOLLOWS: 

"'MORE THAN THIRTY YEARS AGO WHEN IT WAS FOUND BY THE COMMISSION
THAT SOME EMPLOYERS WERE ARBITRARILY DISREGARDING THE EFFECT OF
OUTSTANDING AWARDS AND TERMINATING PAYMENTS DIRECTED BY SUCH AWARDS,
(RULE 13) . . . WAS PROMULGATED . . . . THE RULE HAS SINCE BEEN
CONTINUOUSLY IN FORCE.'"  201 VA., AT 331, 111 S.E. 2D, AT 456. 

RULE 13 WAS PROMULGATED PURSUANT TO THE GENERAL RULEMAKING AUTHORITY
VESTED IN THE COMMISSION BY THE ACT.  SECTION 65.1 - 18 OF THE ACT
PROVIDES, IN PART:  "THE COMMISSION MAY MAKE RULES, NOT INCONSISTENT
WITH THIS ACT, FOR CARRYING OUT THE PROVISIONS OF THIS ACT."  THE STATE
COURTS HAVE HELD THAT RULE 13 IS A VALID EXERCISE OF THE COMMISSION'S
RULEMEKING AUTHORITY.  SEE MANCHESTER BD. & PAPER CO. V. PARKER,
SUPRA. 

/9/  COMMISSION RULE 13 PROVIDES: 

"APPLICATIONS FOR REVIEW ON GROUND OF CHANGE IN CONDITION.-
APPLICATIONS FOR REVIEW UNDER 65.1 - 99 OF THE ACT MUST BE IN WRITING
AND STATE THE GROUND RELIED UPON FOR RELIEF.  REVIEWS OF AWARDS ON THE
GROUND OF A CHANGE IN CONDITION SHALL BE DETERMINED AS OF THE DATE OF
THE FILING OF THE APPLICATION IN THE OFFICE OF THE COMMISSION, EXCEPT
AS PROVIDED IN PARAGRAPHS TWO AND THREE HEREOF. 

"ALL APPLICATIONS FOR HEARING BY AN EMPLOYER OR INSURER UNDER 65.1 -
99 SHALL SHOW THE DATE THROUGH WHICH COMPENSATION BENEFITS HAVE BEEN
PAID.  NO APPLICATION SHALL BE CONSIDERED BY THE COMMISSION UNTIL ALL
COMPENSATION UNDER THE OUTSTANDING AWARD HAS BEEN PAID TO THE DATE SUCH
APPLICATION IS FILED WITH THE COMMISSION.  EXCEPT, THAT IN ANY CASE IN
WHICH THE EMPLOYEE HAS ACTUALLY RETURNED TO WORK OR HAS REFUSED
EMPLOYMENT (65.1 - 63), MEDICAL ATTENTION (65.1 - 88), OR MEDICAL
EXAMINATION (65.1 - 91), COMPENSATION MAY BE TERMINATED AS OF THE DATE
THE EMPLOYEE RETURNED TO WORK OR REFUSED EMPLOYMENT, MEDICAL ATTENTION
OR MEDICAL EXAMINATION, OR AS OF A DATE FOURTEEN DAYS PRIOR TO THE DATE
THE APPLICATION IS FILED, WHICHEVER IS LATER.  IN SUCH CASES THE
APPLICATION WILL BE CONSIDERED AND DETERMINED AS OF THE DATE OF RETURN
TO WORK, OR REFUSAL, OR AS OF A DATE FOURTEEN DAYS PRIOR TO THE DATE
THE APPLICATION IS FILED, WHICHEVER IS LATER.  ALL APPLICATIONS BY AN
EMPLOYER OR INSURER SHALL BE UNDER OATH AND SHALL NOT BE DEEMED FILED
AND BENEFITS SHALL NOT BE SUSPENDED UNTIL THE SUPPORTING EVIDENCE WHICH
CONSTITUTES A LEGAL BASIS FOR CHANGING THE EXISTING AWARD SHALL HAVE
BEEN REVIEWED BY THE COMMISSION, OR SUCH OF ITS EMPLOYEES AS MAY BE
DESIGNATED FOR THAT PURPOSE, AND A DETERMINATION MADE THAT PROBABLE
CAUSE EXISTS TO BELIEVE THAT A CHANGE IN CONDITION HAS OCCURRED. 

"ALL APPLICATIONS FOR HEARING BY AN EMPLOYEE ON THE GROUND OF
FURTHER WORK INCAPACITY SHALL BE CONSIDERED AND DETERMINED AS OF THE
DATE INCAPACITY FOR WORK ACTUALLY BEGINS, OR AS OF A DATE FOURTEEN DAYS
PRIOR TO THE DATE THE APPLICATION IS FILED, WHICHEVER IS LATER." 

/10/  STATE PROCEEDINGS RELATING TO WILLIAMS' ENTITLEMENT TO
BENEFITS CONTINUED AFTER HE WAS PERMITTED TO INTERVENE IN THIS CASE. 
IN SEPTEMBER 1973, FOLLOWING AN ADVERSARY HEARING, THE COMMISSION
FORMALLY TERMINATED WILLIAMS' RIGHT TO BENEFITS.  WILLIAMS APPEALED THE
COMMISSION'S RULING TO THE VIRGINIA SUPREME COURT.  ON THAT APPEAL, HE
APPARENTLY SOUGHT REVIEW ONLY OF THE ACCURACY OF THE COMMISSION'S
DETERMINATION THAT HE WAS NO LONGER DISABLED.  IN AN UNREPORTED ORDER
ISSUED IN DECEMBER 1973, THE VIRGINIA SUPREME COURT AFFIRMED THE
COMMISSION'S RULING.  WILLIAMS THEN FILED A PETITION FOR CERTIORARI IN
THIS COURT SEEKING REVIEW OF THE STATE COURT HOLDING.  THAT PETITION,
WHICH IS PENDING, NO. 73 - 6431, WILLIAMS V. RICHMOND GUANO CO., DOES
NOT RAISE THE SAME CONSTITUTIONAL ARGUMENTS THAT WILLIAMS HAS ADVANCED
ON THIS APPEAL.  INDEED, ALTHOUGH THE SAME COUNSEL REPRESENTED WILLIAMS
ON CERTIORARI AND ON THE INSTANT APPEAL, THE PETITION MAKES NO MENTION
OF THIS CASE.  IN LIGHT OF OUR DISPOSITION OF THE INSTANT CASE, WE NEED
NOT DECIDE WHETHER WILLIAMS MIGHT HAVE ADDRESSED HIS PRESENT FEDERAL
CONSTITUTIONAL ARGUMENTS TO THE VIRGINIA SUPREME COURT ON ITS REVIEW OF
THE FINAL ORDER OF THE COMMISSION. 

/11/  SEE BRIEF OF APPELLEE AETNA CASUALTY AND SURETY CO. 5: 

"APPLICANTS USUALLY CEASE PAYING COMPENSATION AT THE TIME THEY FILE
THE APPLICATION BASED ON A CHANGE OF CONDITION, BUT THE ACTUAL AWARD IS
CHANGED ONLY BY ORDER OF THE COMMISSION FOLLOWING A FULL HEARING OR
AGREEMENT OF THE PARTIES.  ALTHOUGH THE AWARD SPEAKS IN TERMS OF
CONTINUING 'DURING INCAPACITY,' INCAPACITY CAN BE CHALLENGED ONLY
BEFORE THE COMMISSION.  THEREFORE, THE EMPLOYEE CAN ENFORCE PAYMENTS
EVEN AFTER THE COMMISSION FINDS 'PROBABLE CAUSE' TO BELIEVE A CHANGE
HAS OCCURRED AND SCHEDULES A HEARING JUST AS HE CAN ENFORCE AN AWARD
AGAINST A RECALCITRANT EMPLOYER WHO SUSPENDS PAYMENTS WITHOUT PROBABLE
CAUSE." 

/12/  TR. OF ORAL ARG. 53. 

/13/  ID., AT 52, 53, 55. 

/14/  SEE N. 8, SUPRA. 

/15/  THE COMMISSION STATES THAT THE PURPOSE OF RULE 13 IS TO
REQUIRE EMPLOYERS AND INSURERS "TO SUBMIT SUFFICIENT INFORMATION TO THE
COMMISSION OF THE ULTIMATE MERIT OF THE SUSPENSION THAT THE POSSIBILITY
OF FRAUDULENT, FRIVOLOUS OR ARBITRARY SUSPENSIONS IS ELIMINATED (SIC)
AND THE LIKELIHOOD OF SUSPENSION IN NON-FRAUDULENT BUT OTHERWISE NON
MERITORIOUS CASES IS MINIMIZED."  MOTION TO AFFIRM 3.  AN AMICUS BRIEF
INDICATES THAT IN ABOUT ONE-THIRD OF ALL RULE 13 APPLICATIONS THE
COMMISSION FINDS NO PROBABLE CAUSE AND THUS DOES NOT PERMIT EMPLOYERS
OR INSURERS TO HAVE A 65.1 - 99 HEARING.  BRIEF FOR AMERICAN INSURANCE
ASSOCIATION ET AL. 14. 

/16/  THE COURT DECLARED: 

"NOWHERE IN THE RULE DOES IT AUTHORIZE OR DIRECT THE EMPLOYER OR
INSURER TO CEASE PAYMENTS BEFORE A FULL HEARING.  IT MERELY PROVIDES
THE COMMISSION WILL NOT HEAR THE PETITION OF THE EMPLOYER OR INSURER
ASSERTING ANY CHANGE IN CONDITION IF PAYMENTS UNDER THE AWARD HAVE NOT
BEEN MADE UP TO THE DATE THE APPLICATION IS DEEMED FILED, WITH AN
ADMONITION THAT BENEFITS SHALL NOT BE SUSPENDED UNTIL THE SUPPORTING
EVIDENCE SUBMITTED WITH THE PETITION HAS BEEN REVIEWED AND IT IS
DETERMINED PROBABLE CAUSE EXISTS TO BELIEVE A CHANGE HAS OCCURRED, AND
IF A FINDING OF PROBABLE CAUSE IS MADE, THE APPLICATION WILL THEN BE
DEEMED FILED.  HERE AGAIN, IT DOES NOT AUTHORIZE OR DIRECT SUSPENSION
OF PAYMENTS, BUT MERELY PROVIDES THE INSURER OR EMPLOYER MAY NOT HAVE A
HEARING ON AN ALLEGED CHANGE OF CONDITION UNLESS AND UNTIL THE
PROVISIONS OF THE RULE ARE COMPLIED WITH."  347 F. SUPP., AT 74 - 75
(EMPHASIS IN ORIGINAL).     /17/  THERE IS ALSO A QUESTION IN THE
RECORD WHETHER A PROBABLE CAUSE DETERMINATION BY THE COMMISSION UNDER
RULE 13 IS NECESSARILY EX PARTE AND WHETHER A CLAIMANT IS IN FACT
DENIED NOTICE OF SUCH A PROCEEDING.  THE DISTRICT COURT NOTED THIS AT
THE OUTSET OF ITS OPINION:  "THE DETERMINATION OF 'PROBABLE CAUSE' IS
TO BE MADE FROM AN EXAMINATION OF 'SUPPORTING EVIDENCE WHICH
CONSTITUTES A LEGAL BASIS'  FOR CHANGING THE EXISTING AWARD.  NOWHERE
DOES THE RULE SAY THE DETERMINATION MAY BE MADE WITHOUT NOTICE TO THE
EMPLOYEE AND A CHANCE TO BE HEARD.  THE MERE FACT THAT SUCH AN
INFERENCE MAY EXIST--A DETERMINATION WITHOUT NOTICE TO THE EMPLOYEE AND
AN OPPORTUNITY TO BE HEARD--DOES NOT RENDER THE LANGUAGE OBJECTIONABLE
ON ITS FACE.  . . . THE (APRIL 1, 1972) AMENDMENT TO THE RULE IS NEW
AND THE EVIDENCE DOES NOT INDICATE WHAT THE COMMISSION WILL REQUIRE IN
THE WAY OF SUPPORTING EVIDENCE TO CONSTITUTE A LEGAL BASIS FOR
ESTABLISHING PROBABLE CAUSE TO BELIEVE A CHANGE IN CONDITION HAS
OCCURRED."  347 F. SUPP., AT 75 (CITATION OMITTED).  MOREOVER, WE WERE
INFORMED AT ORAL ARGUMENT THAT AS A MATTER OF PRACTICE INSURANCE
COMPANIES AND THE COMMISSION REGULARLY INFORM CLAIMANTS THAT A PROBABLE
CAUSE DETERMINATION IS PENDING.  TR. OF ORAL ARG. 43 - 44.  IT WAS ALSO
ASSERTED THAT THE COMMISSION WOULD TAKE INTO ACCOUNT SUBMISSIONS BY A
CLAIMANT WHEN IT MAKES A PROBABLE CAUSE DETERMINATION.  ID., AT 44.  AN
AMICUS BRIEF INDICATES THAT:  "AN EMPLOYEE MAY, UNDER THE PRESENT RULE
13, FILE A WRITTEN STATEMENT OR SUBMIT EVIDENCE OPPOSING THE PROBABLE
CAUSE DETERMINATION.  HOWEVER, IN FACT THIS RARELY OCCURS BECAUSE THE
EMPLOYEE NORMALLY DOES NOT HAVE ACCESS TO THE EMPLOYER'S EVIDENCE AND
BACAUSE THE COMMISSION ACTS RAPIDLY WITHOUT WAITING TO RECEIVE ANY
SUBMISSION FROM THE EMPLOYEE.  (HOWEVER, IF AN EMPLOYEE DOES SEND IN
INFORMATION EVEN AFTER PROBABLE CAUSE IS FOUND, THE COMMSSION WILL
EVALUATE THE INFORMATION.  IF THE INFORMATION INDICATES THAT PAYMENT
SHOULD NOT BE SUSPENDED, THE COMMISSION INFORMS THE CARRIER AND THE
CARRIER THEN CONTINUES PAYMENTS TO THE CLAIMANT)."  BRIEF FOR AMERICAN
INSURANCE ASSOCIATION ET AL. 13 - 14. 

IF A CLAIMANT RECEIVES NOTICE OF A RULE 13 APPLICATION AND IF THE
COMMISSION WILL RECEIVE AND EVALUATE HIS COUNTER-AFFIDAVITS OR MEDICAL
EVIDENCE, THE CONSTITUTIONAL CHALLENGE TO THE VIRGINIA SYSTEM WOULD
ARISE IN A DIFFERENT LIGHT EVEN IF NO RECOURSE TO THE STATE COURTS WERE
AVAILABLE UNDER 65.1 - 100 OF THE ACT.  AS IT DID WITH REGARD TO THE
QUESTION OF THE IMPACT OF RULE 13 ON A CLAIMANT'S RIGHT TO REINSTATE
BENEFITS BY RESORT TO THE STATE TRIAL COURTS, THE DISTRICT COURT
BYPASSED THIS QUESTION OF STATE LAW.  IT "ASSUMED) THAT THE RULE DOES
NOT PROVIDE FOR NOTICE AND A HEARING TO THE EMPLOYEE PRIOR TO
TERMINATION OF THE AWARD . . . ."  347 F. SUPP., AT 75.  THE COURT
SHOULD HAVE RESOLVED ITS DOUBTS ON THIS ISSUE BEFORE ADDRESSING
APPELLANTS' FEDERAL CONSTITUTIONAL ARGUMENT. 

/18/  SEE N. 17, SUPRA. 

MR. JUSTICE DOUGLAS, DISSENTING.  THIS CASE INVOLVES A CLASS ACTION
BROUGHT ON BEHALF OF ALL PERSONS WHO, AS A RESULT OF SUSTAINING
EMPLOYMENT-RELATED INJURIES, ARE RECIPIENTS OF BENEFITS UNDER THE
VIRGINIA WORKMEN'S COMPENSATION ACT, VA. CODE ANN. 65.1 - 1 ET SEQ.
THIS ACTION CHALLENGES THE CONSTITUTIONALITY UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT OF THAT PART OF THE ACT ALLOWING A
TERMINATION OF BENEFIT PAYMENTS BY THE EMPLOYER OR INSURER AS A RESULT
OF AN ASSERTED CHANGE IN CONDITION PRIOR TO A FULL HEARING ON THE
ALLEGED CHANGE BEFORE THE COMMISSION.  THE COMPLAINT PRAYED FOR AN
INJUNCTION TO RESTRAIN ENFORCEMENT OF THAT PART OF THE ACT.  A THREE
JUDGE DISTRICT COURT WAS CONVENED, 28 U.S.C. 2281, AND THE CHALLENGED
PORTIONS OF THE ACT WERE FOUND CONSTITUTIONAL, ONE JUDGE DISSENTING. 
347 F. SUPP. 71 (ED VA. 1972). 

THE ACT PROVIDES A SYSTEM ALLOWING THE EMPLOYER AND THE EMPLOYEE TO
ESCAPE PERSONAL INJURY LITIGATION FOR ON-THE-JOB INJURIES; IT PROVIDES
FOR THE PAYMENT OF COMPENSATION UNDER FIXED RULES.  ONCE THE INDUSTRIAL
COMMISSION APPROVES AN AWARD OF BENEFITS, THE COMMISSION OR ANY PARTY
IN INTEREST MAY MOVE FOR REVIEW OF THE AWARD "ON THE GROUND OF A CHANGE
IN CONDITION."  VA. CODE ANN. 65.1 - 99.  ACCORDING TO THE COMMISSION'S
RULE 13, ALL SUCH APPLICATIONS BY AN EMPLOYER OR INSURER TO DECREASE OR
TERMINATE BENEFITS "'REQUIRE THAT AN EX PARTE INQUIRY BE HELD BY THE
COMMISSION TO DETERMINE WHETHER PROBABLE CAUSE EXISTS FOR A CHANGE IN
THE AWARD BEFORE ANY BENEFITS MAY BE TEMPORARILY SUSPENDED PENDING A
FULL HEARING.'"  347 F. SUPP., AT 79. 

SUSPENSION OF BENEFITS AWARDED BY THE COMMISSION IS THUS PERMITTED
UPON AN EX PARTE DETERMINATION THAT "PROBABLE CAUSE" FOR TERMINATION
EXISTS.  THE PARTIES HERE DO NOT DISPUTE THAT THE FULL HEARING
CONDUCTED BY THE COMMISSION BEFORE FINAL TERMINATION, WITH NOTICE AND
OPPORTUNITY FOR ALL PARTIES TO BE HEARD, SATISFIES THE REQUIREMENTS OF
DUE PROCESS.  AT ISSUE IS THE EX PARTE SUSPENSION OF BENEFITS OF A
COMMISSION'S AWARD PRIOR TO THAT FINAL HEARING.  THE COURT DOES NOT
REACH THE CONSTITUTIONALITY OF THE SUSPENSION, BECAUSE A CLAIMANT,
WHOSE BENEFITS HAVE BEEN SO SUSPENDED, MAY BRING SUIT IN A STATE COURT
TO HAVE THEM REINSTATED, PURSUANT TO VA. CODE ANN. 65.1 - 100. 

I DISAGREE THAT THE OPPORTUNITY FOR A CLAIMANT TO COUNTERACT A
TERMINATION OF BENEFITS PAYABLE UNDER AN AWARD OF THE COMMISSION BY
INSTITUTING A STATE COURT ACTION IS AN ANSWER TO THE CONSTITUTIONAL
CHALLENGE TO THE TERMINATION.  /1/  THE ISSUE HERE IS THE NECESSITY OF
A HEARING BEFORE TERMINATION OF BENEFITS.  ANY STATE REMEDY WHICH
PLACES UPON THE WORKER THE BURDEN OF GOING TO COURT TO REDRESS A
TERMINATION WHCIH HAS ALREADY OCCURRED IS SIMPLY NOT IN POINT.  IT
PLACES THE BURDEN OF AFFIRMATIVE ACTION UPON THAT SEGMENT OF SOCIETY
LEAST ABLE TO BEAR IT AT A TIME WHICH COULD NOT BE LESS OPPORTUNE.  AS
JUDGE MERHIGE SAID BELOW IN DISSENT:  "JUDGES NEED NOT BLIND THEMSELVES
TO WHAT THEY KNOW AS MEN.  I CANNOT HELP BUT BELIEVE THAT THE AVERAGE
WORKING MAN IN VIRGINIA, WHO HAS SUSTAINED AN INJURY RESULTING IN A
SUBSTANTIAL REDUCTION OF HIS WEEKLY INCOME, SUFFERS A GRAVE AND
IMMEDIATE LOSS.  . . . THE VERY THOUGHT THAT THE EX PARTE PROCEEDING
PERMITTED BY RULE 13 MAY RESULT IN A CESSATION OF MILK DELIVERY, OR
ELECTRIC POWER, OR FUEL TO A WORKING MAN AND HIS FAMILY, SHOCKS MY
CONSCIENCE."  347 F. SUPP., AT 81.  THE OPPORTUNITY FOR WORKING-CLASS
MEN AND WOMEN IN THAT GRAVE SITUATION TO ENTER STATE COURT AND DO
BATTLE WITH THE CORPORATE EMPLOYERS AND INSURERS WHO HAVE ALREADY
TERMINATED THEIR BENEFITS WITHOUT A HEARING IS NO MEANINGFUL SOLUTION
TO THEIR PROBLEM. 

SINCE I FIND THE STATE REMEDY IN APPOSITE, I DISSENT FROM THE REMAND
TO CONSIDER ITS IMPACT. 

/1/  IN SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337 (1969), WAGES
EARNED COULD NOT BE SEIZED UNDER GARNISHMENT BY A CREDITOR WITHOUT
PRIOR NOTICE AND OPPORTUNITY TO BE HEARD.  BY THE SAME TOKEN, IN THE
PRESENT CASE ENTITLEMENT TO AN AWARD MADE BY THE COMMISSION SHOULD NOT
BE TAKEN EX PARTE BUT ONLY AFTER PRIOR NOTICE AND OPPORTUNITY TO BE
HEARD IF PROCEDURAL DUE PROCESS IS TO CONTROL AS IT MUST BY REASON OF
THE FOURTEENTH AMENDMENT. 

JOHN M. LEVY ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WAS GEORGE S. NEWMAN. 

STUART H. DUNN, ASSISTANT ATTORNEY GENERAL OF VIRGINIA, ARGUED THE
CAUSE FOR APPELLEES INDUSTRIAL COMMISSION OF VIRGINIA AND INDIVIDUAL
COMMISSIONERS.  WITH HIM ON THE BRIEF WERE ANDREW P. MILLER, ATTORNEY
GENERAL, AND WILLIAM E. O'NEILL, JR. J. ROBERT BRAME III ARGUED THE
CAUSE FOR APPELLEE AETNA CASUALTY & SURETY CO. WITH HIM ON THE BRIEF
WERE WILLIAM H. KING AND WILLARD I. WALKER. 
..END :














KEWANEE OIL CO. V. BICRON CORP., 416 U.S. 470 


       KEWANEE OIL CO. V. BICRON CORP. ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

        SIXTH CIRCUIT

        NO. 73 - 187.  ARGUED JANUARY 9, 1974--DECIDED MAY 13, 1974

           (478 F.2D 1074, REVERSED AND REMANDED FOR REINSTATEMENT

           OF DISTRICT COURT JUDGMENT.) 


    HARSHOW CHEMICAL CO., AN UNINCORPORATED DIVISION OF PETITIONER,

  OVER A PERIOD OF YEARS DEVELOPED CERTAIN PROCESSES IN THE GROWTH

  AND ENCAPSULATION OF SYNTHETIC CRYSTALS AND PURIFICATION OF RAW

  MATERIALS, SOME OF WHICH PROCESSES WERE CONSIDERED TO BE TRADE

  SECRETS; IT EVENTUALLY SUCCEEDED FOR THE FIRST ITME IN GROWING A

  17-INCH CRYSTAL OF A TYPE USEFUL IN THE DETECTION OF IONIZING

  RADIATION.  THE INDIVIDUAL RESPONDENTS, FORMER EMPLOYEES OF

  HARSHAW WHO WHILE WORKING THERE HAD SIGNED AGREEMENTS NOT TO

DISCLOSE TRADE SECRETS OBTAINED AS EMPLOYEES, FORMED OR LATER

  JOINED RESPONDENT BICRON CORP., WHICH COMPETED WITH HARSHAW IN

  PRODUCING CRYSTALS; BICRON, SOON AFTER ITS FORMATION, ALSO GREW A

  17-INCH CRYSTAL.  PETITIONER BROUGHT THIS DIVERSITY ACTION

  SEEKING INJUNCTIVE RELIEF AND DAMAGES FOR MISAPPROPRIATION OF

  TRADE SECRETS.  THE DISTRICT COURT, APPLYING OHIO TRADE SECRET

  LAW, GRANTED A PERMANENT INJUNCTION.  THE COURT OF APPEALS

  REVERSED ON THE GROUND THAT OHIO'S TRADE SECRET LAW CONFLICTED

  WITH THE FEDERAL PATENT LAWS.  HELD:  OHIO'S TRADE SECRET LAW IS

  NOT PRE-EMPTED BY THE FEDERAL PATENT LAWS.  PP. 474 - 493. 

 (A) THE STATE ARE NOT FORBIDDEN TO PROTECT THE KINDS OF

 INTELLECTUAL PROPERTY THAT MAY MAKE UP THE SUBJECT MATTER OF

  TRADE SECRETS; JUST AS THE STATES MAY EXERCISE REGULATORY POWER

  OVER WRITINGS, GOLDSTEIN V. CALIFORNIA, 412 U.S. 546, SO MAY THEY

  REGULATE WITH RESPECT TO DISCOVERIES, THE ONLY LIMITATION BEING

  THAT REGULATION IN THE AREA OF PATENTS AND COPYRIGHTS MUST NOT

  CONFLICT WITH THE OPERATION OF FEDERAL LAWS IN THIS AREA.  PP.

  478 - 479. 

     (B) ABOLITION OF TRADE SECRET PROTECTION WOULD NOT RESULT IN

  INCREASED DISCLOSURE TO THE PUBLIC OF DISCOVERIES IN THE AREA OF

  NONPATENTABLE SUBJECT MATTER, AND THE PUBLIC WOULD NOT BE

  BENEFITED BY DISCLOSURE OF SUCH DISCOVERIES.  PP. 482 - 483. 

     (C) THE FEDERAL PATENT POLICY OF ENCOURAGING INVENTION IS NOT

  DISTURBED BY THE EXISTENCE OF ANOTHER FORM OF INCENTIVE TO

  INVENTION SUCH AS TRADE SECRET PROTECTION, AND IN THIS RESPECT

  THE TWO SYSTEMS ARE NOT IN CONFLICT.  P. 484. 

     (D) NOR IS THE PATENT POLICY THAT MATTER ONCE IN THE PUBLIC

  DOMAIN MUST REMAIN THERE INCOMPATIBLE WITH THE EXISTENCE OF TRADE

  SECRET PROTECTION.  P. 484. 

     (E) NOR IS THERE ANY CONFLICT BETWEEN TRADE SECRET LAW AND THE

  PATENT POLICY OF DISCLOSURE WHETHER A TRADE SECRET CONCERNING

  PATENTABLE SUBJECT MATTER IS IN THE CATEGORY OF DISCOVERY WHICH

  IS (1) CLEARLY UNPATENTABLE, (2) DOUBTFULLY PATENTABLE, OR (3)

  CLEARLY PATENTABLE.  AS TO THE FIRST CATEGORY, THE PATENT

ALTERNATIVE IS NOT AVAILABLE AND TRADE SECRET LAW WILL ENCOURAGE

  INVENTION AND PROMPT THE INVENTOR TO PROCEED WITH THE DISCOVERY

  AND EXPLOITATION OF HIS INVENTION, AND TO LICENSE OTHERS TO

  EXPLOIT SECRET PROCESSES.  AS TO THE SECOND CATEGORY, THE RISK

  AND COST OF EVENTUAL PATENT INVALIDITY MAY IMPEL THE INVENTOR NOT

  TO SEEK PATENT PROTECTION REGARDLESS OF THE EXISTENCE OF TRADE

  SECRET LAW, AND THE ENCOURAGEMENT BY THE ELIMINATION OF TRADE

  SECRET PROTECTION OF PATENT APPLICATIONS BY SOME WITH DOUBTFULLY

  PATENTABLE INVENTIONS IS LIKELY TO HAVE A DELETERIOUS EFFECT ON

  SOCIETY AND PATENT POLICY.  AS TO THE THIRD CATEGORY, TRADE

  SECRET LAW, WHICH AFFORDS WEAKER PROTECTION THAN THE PATENT LAWS,

  PRESENTS NO REASONABLE RISK OF DETERENCE FROM PATENT

  APPLICATION.  PP. 484 - 491. 

     (F) THERE BEING NO REAL POSSIBILITY THAT TRADE SECRET LAW WILL

CONFLICT WITH FEDERAL PATENT POLICY, PARTIAL PRE-EMPTION AS TO

  CLEARLY PATENTABLE INVENTIONS WOULD NOT BE APPROPRIATE AND COULD

  WELL UNNECESSARILY BURDEN ADMINISTRATION OF TRADE SECRET LAW BY

  STATES.  PP. 491 - 492. 

     BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH

STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  MARSHALL,

  J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 493. 

  DOUGLAS, J., FILED A DISSENTING OPINION IN WHICH BRENNAN, J.,

  JOINED, POST, P. 495.  POWELL, J., TOOK NO PART IN THE DECISION

  OF THE CASE. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO RESOLVE A QUESTION ON WHICH THERE IS A
CONFLICT IN THE COURTS OF APPEALS: WHETHER STATE TRADE SECRET
PROTECTION IS PRE-EMPTED BY OPERATION OF THE FEDERAL PATENT LAW.  /1/
IN THE INSTANT CASE THE COURT OF APPEALS FOR THE SIXTH CIRCUIT HELD
THAT THERE WAS PREEMPTION.  /2/ THE COURTS OF APPEALS FOR THE SECOND,
FOURTH, FIFTH, AND NINTH CIRCUITS HAVE REACHED THE OPPOSITE
CONCLUSION.  /3/

        I 

HARSHAW CHEMICAL CO., AN UNINCORPORATED DIVISION OF PETITIONER, IS A
LEADING MANUFACTURER OF A TYPE OF SYNTHETIC CRYSTAL WHICH IS USEFUL IN
THE DETECTION OF IONIZING RADIATION.  IN 1949 HARSHAW COMMENCED
RESEARCH INTO THE GROWTH OF THIS TYPE CRYSTAL AND WAS ABLE TO PRODUCE
ONE LESS THAN TWO INCHES IN DIAMETER.  BY 1966, AS THE RESULT OF
EXPENDITURES IN EXCESS OF $1 MILLION, HARSHAW WAS ABLE TO GROW A 17
INCH CRYSTAL, SOMETHING NO ONE ELSE HAD DONE PREVIOUSLY.  HARSHAW HAD
DEVELOPED MANY PROCESSES, PROCEDURES, AND MANUFACTURING TECHNIQUES IN
THE PURIFICATION OF RAW MATERIALS AND THE GROWTH AND ENCAPSULATION OF
THE CRYSTALS WHICH ENABLE IT TO ACCOMPLISH THIS FEAT.  SOME OF THESE
PROCESSES HAWSHAW CONSIDERS TO BE TRADE SECRETS. 

THE INDIVIDUAL RESPONDENTS ARE FORMER EMPLOYEES OF HARSHAW WHO
FORMED OR LATER JOINED RESPONDENT BICRON.  WHILE AT HARSHAW THE
INDIVIDUAL REPSONDENTS EXECUTED, AS A CONDITION OF EMPLOYMENT, AT LEAST
ONE AGREEMENT EACH, REQUIRING THEM NOT TO DISCLOSE CONFIDENTIAL
INFORMATION OR TRADE SECRETS OBTAINED AS EMPLOYEES OF HARSHAW.  BICRON
WAS FORMED IN AUGUST 1969 TO COMPETE WITH HARSHAW IN THE PRODUCTION OF
THE CRYSTALS, AND BY APRIL 1970, HAD GROWN A 17-INCH CRYSTAL. 

PETITIONER BROUGHT THIS DIVERSITY ACTION IN UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OH OHIO SEEKING INJUNCTIVE RELIEF AND
DAMAGES FOR THE MISAPPROPRIATION OF TRADE SECRETS.  THE DISTRICT COURT,
APPLYING OHIO TRADE SECRET LAW, GRANTED A PERMANENT INJUNCTION AGAINST
THE DISCLOSURE OR USE BY RESPONDENTS OF 20 OF THE 40 CLAIMED TRADE
SECRETS UNTIL SUCH TIME AS THE TRADE SECRETS HAD BEEN RELEASED TO THE
PUBLIC, HAD OTHERWISE GENERALLY BECOME AVAILABLE TO THE PUBLIC, OR HAD
BEEN OBTAINED BY RESPONDENTS FROM SOURCES HAVING THE LEGAL RIGHT TO
CONVEY THE INFORMATION. 

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT HELD THAT THE FINDINGS OF
FACT BY THE DISTRICT COURT WERE NOT CLEARLY ERRONEOUS, AND THAT IT WAS
EVIDENT FROM THE RECORD THAT THE INDIVIDUAL RESPONDENTS APPROPRIATED TO
THE BENEFIT OF BICRON SECRET INFORMATION ON PROCESSES OBTAINED WHILE
THEY WERE EMPLOYEES AT HARSHAW.  FURTHER, THE COURT OF APPEALS HELD
THAT THE DISTRICT COURT PROPERLY APPLIED OHIO LAW RELATING TO TRADE
SECRETS.  NEVERTHELESS, THE COURT OF APPEALS REVERSED THE DISTRICT
COURT, FINDING OHIO'S TRADE SECRET LAW TO BE IN CONFLICT WITH THE
PATENT LAWS OF THE UNITED STATES.  THE COURT OF APPEALS REASONED THAT
OHIO COULD NOT GRANT MONOPOLY PROTECTION TO PROCESSES AND MANUFACTURING
TECHNIQUES THAT WERE APPROPRIATE SUBJECTS FOR CONSIDERATION UNDER 35
U.S.C. 101 FOR A FEDERAL PATENT BUT WHICH HAD BEEN IN COMMERCIAL USE
FOR OVER ONE YEAR AND SO WERE NO LONGER ELIGIBLE FOR PATENT PROTECTION
UNDER 35 U.S.C. 102(B). 

WE HOLD THAT OHIO'S LAW OF TRADE SECRETS IS NOT PREEMPTED BY THE
PATENT LAWS OF THE UNITED STATES, AND, ACCORDINGLY, WE REVERSE. 

        II 

OHIO HAS ADOPTED THE WIDELY RELIED-UPON DEFINITION OF A TRADE SECRET
FOUND AT RESTATEMENT OF TORTS 757, COMMENT B (1939).  B. F. GOODRICH
CO. V. WOHLGEMUTH, 117 OHIO APP. 493, 498, 192 N. E. 2D 99, 104 (1963);
W. R. GRACE & CO. V. HARGADINE, 392 F.2D 9, 14 (CA6 1968).  ACCORDING
TO THE RESTATEMENT, 

"(A) TRADE SECRET MAY CONSIST OF ANY FORMULA, PATTERN, DEVICE OR
COMPILATION OF INFORMATION WHICH IS USED IN ONE'S BUSINESS, AND WHICH
GIVES HIM AN OPPORTUNITY TO OBTAIN AN ADVANTAGE OVER COMPETITORS WHO DO
NOT KNOW OR USE IT.  IT MAY BE A FORMULA FOR A CHEMICAL COMPOUND, A
PROCESS OF MANAFACTURING, TREATING OR PRESERVING MATERIALS, A PATTERN
FOR MACHINE OR OTHER DEVICE, OR LIST OF CUSTOMERS." 

THE SUBJECT OF A TRADE SECRET MUST BE A SECRET, AND MUST NOT BE OF
PUBLIC KNOWLEDGE OR OF A GENERAL KNOWLEDGE IN THE TRADE OR BUSINESS. 
B. F. GOODRICH CO. V. WOHLGEMUTH, SUPRA, AT 499, 192 N. E. 2D AT 104. 
NATIONAL TUBE CO. V. EASTERN TUBE CO., 3 OHIO C. C. R. (N. S.)  459,
462 (1902), AFF'D, 69 OHIO ST. 560, 70 N. E. 1127 (1903).  THIS
NECESSARY ELEMENT OF SECRECY IS NOT LOST, HOWEVER, IF THE HOLDER OF THE
TRADE SECRET REVEALS THE TRADE SECRET TO ANOTHER "IN CONFIDENCE, AND
UNDER AN IMPLIED OBLIGATION NOT TO USE OR DISCLOSE IT."  CINCINNATI
BELL FOUNDRY CO. V. DODDS, 10 OHIO DEC. REPRINT 154, 156, 19 WEEKLY L.
BULL.  84 (SUPER.  CT. 1887).  THESE OTHERS MAY INCLUDE THOSE OF THE
HOLDER'S "EMPLOYEES TO WHOM IT IS NECESSARY TO CONFIDE IT, IN ORDER TO
APPLY IT TO THE USES FOR WHICH IT IS INTENDED."  NATIONAL TUBE CO. V.
EASTERN TUBE CO., SUPRA, AT 462.  OFTEN THE RECIPIENT OF CONFIDENTIAL
KNOWLEDGE OF THE SUBJECT OF A TRADE SECRET IS A LICENSEE OF ITS
HOLDER.  SEE LEAR, INC. V. ADKINS, 395 U.S. 653 (1969). 

THE PROTECTION ACCORDED THE TRADE SECRET HOLDER IS AGAINST THE
DISCLOSURE OR UNAUTHORIZED USE OF THE TRADE SECRET BY THOSE TO WHOM THE
SECRET HAS BEEN CONFIDED UNDER THE EXPRESS OR IMPLIED RESTRICTION OF
NONDISCLOSURE OR NONUSE.  /4/  THE LAW ALSO PROTECTS THE HOLDER OF A
TRADE SECRET AGAINST DISCLOSURE OR USE WHEN THE KNOWLEDGE IS GAINED,
NOT BY THE OWNER'S VOLITION, BUT BY SOME "IMPROPER MEANS," RESTATEMENT
OF TORTS 757(A), WHICH MAY INCLUDE THEFT, WIRETAPPING, OR EVEN AERIAL
RECONNAISSANCE.  /5/  A TRADE SECRET, HOWEVER, DOES NOT OFFER
PROTECTION AGAINST DISCOVERY BY FAIR AND HONEST MEANS, SUCH AS BY
INDEPENDENT INVENTION, ACCIDENTAL DISCLOSURE, OR BY SO-CALLED REVERSE
ENGINEERING, THAT IS BY STARTING WITH THE KNOWN PRODUCT AND WORKING
BACKWARD TO DIVINE THE PROCESS WHICH AIDED IN ITS DEVELOPMENT OR
MANUFACTURE.  /6/ 

NOVELTY, IN THE PATENT LAW SENSE, IS NOT REQUIRED FOR A TRADE
SECRET, W. R. GRACE & CO. V. HARGADINE, 392 F.2D, AT 14.  "QUITE
CLEARLY DISCOVERY IS SOMETHING LESS THAN INVENTION."  A. O. SMITH CORP.
V. PETROLEUM IRON WORKS CO., 73 F.2D 531, 538 (CA6 1934), MODIFIED TO
INCREASE SCOPE OF INJUNCTION, 74 F.2D 934 (1935).  HOWEVER, SOME
NOVELTY WILL BE REQUIRED IF MERELY BECAUSE THAT WHICH DOES NOT POSSESS
NOVELTY IS USUALLY KNOWN; SECRECY, IN THE CONTEXT OF TRADE SECRETS,
THUS IMPLIES AT LEAST MINIMAL NOVELTY.  /7/ 

THE SUBJECT MATTER OF A PATENT IS LIMITED TO A "PROCESS, MACHINE,
MANUFACTURE, OR COMPOSITION OF MATTER, OR . . . IMPROVEMENT THEREOF,"
35 U.S.C. 101, WHICH FULFILLS THE THREE CONDITIONS OF NOVELTY AND
UTILITY AS ARTICULATED AND DEFINED IN 35 U.S.C. 101 AND 102, AND
NONOBVIOUSNESS, AS SET OUT IN 35 U.S.C. 103.  /8/  IF AN INVENTION
MEETS THE RIGOROUS STATUTORY TESTS FOR THE ISSUANCE OF A PATENT, THE
PATENT IS GRANTED, FOR A PERIOD OF 17 YEARS, GIVING WHAT HAS BEEN
DESCRIBED AS THE "RIGHT OF EXCLUSION,"  R. ELLIS, PATENT ASSIGNMENTS
AND LICENSES 4, P. 7 (2D ED. 1943).  /9/  THIS PROTECTION GOES NOT ONLY
TO COPYING THE SUBJECT MATTER, WHICH IS FORBIDDEN UNDER THE COPYRIGHT
ACT, 17 U.S.C. 1 ET SEQ., BUT ALSO FORBIDS INDEPENDENT CREATION. 

        III 

THE FIRST ISSUE WE DEAL WITH IS WHETHER THE STATES ARE FORBIDDEN TO
ACT AT ALL IN THE AREA OF PROTECTION OF THE KINDS OF INTELLECTUAL
PROPERTY WHICH MAY MAKE UP THE SUBJECT MATTER OF TRADE SECRETS. 

ARTICLE I, 8, CL. 8, OF THE CONSITUTION GRANTS TO THE CONGRESS THE
POWER--' 

     "TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY

  SECURING FOR LIMITED TIMES TO AUTHORS AND INVENTORS THE EXCLUSIVE

  RIGHT TO THEIR RESPECTIVE WRITINGS AND DISCOVERIES . . . ." 

IN THE 1972 TERM, IN GOLDSTEIN V. CALIFORNIA, 412 U.S. 546 (1973), WE
HELD THAT THE CL. 8 GRANT OF POWER TO CONGRESS WAS NOT EXCLUSIVE AND
THAT, AT LEAST IN THE CASE OF WRITINGS, THE STATES WERE NOT PROHIBITED
FROM ENCOURAGING AND PROTECTING THE EFFORTS OF THOSE EITHIN THEIR
BORDERS BY APPROPRIATE LEGISLATION.  THE STATES COULD, THEREFORE,
PROTECT AGAINST THE UNAUTHORIZED RERECORDING FOR SALE OF PERFORMANCES
FIXED ON RECORDS OR TAPES, EVEN THOUGH THOSE PERFORMANCES QUALIFIED AS
"WRITINGS" IN THE CONSTITUTIONAL SENSE AND CONGRESS WAS EMPOWERED TO
LEGISLATE REGARDING SUCH PERFORMANCES AND COULD PRE-EMPT THE AREA IF IT
CHOSE TO DO SO.  THIS DETERMINATION WAS PREMISED ON THE GREAT DIVERSITY
OF INTERESTS IN OUR NATION--THE ESSENTIALLY NONUNIFORM CHARACTER OF THE
APPRECIATION OF INTELLECTUAL ACHIEVEMENTS IN THE VARIOUS STATES. 
EVIDENCE FOR THIS CAME FROM PATENTS GRANTED BY THE STATES IN THE 18TH
CENTURY.  412 U.S., AT 557. 

JUST AS THE STATES MAY EXERCISE REGULATORY POWER OVER WRITINGS SO
MAY THE STATES REGULATE WITH RESPECT TO DISCOVERIES.  STATES MAY HOLD
DIVERSE VIEWPOINTS IN PROTECTING INTELLECTUAL PROPERTY RELATING TO
INVENTION AS THEY DO IN PROTECTING THE INTELLECTUAL PROPERTY RELATING
TO THE SUBJECT MATTER OF COPYRIGHT.  THE ONLY LIMITATION ON THE STATES
IS THAT IN REGULATING THE AREA OF PATENTS AND COPYRIGHTS THEY DO NOT
CONFLICT WITH THE OPERATION OF THE LAWS IN THIS AREA PASSED BY
CONGRESS, AND IT IS TO THAT MORE DIFFICULT QUESTION WE NOW TURN. 

        IV 

THE QUESTION OF WHETHER THE TRADE SECRET LAW OF OHIO IS VOID UNDER
THE SUPREMACY CLAUSE INVOLVES A CONSIDERATION OF WHETHER THAT LAW
"STANDS AS AN OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION OF THE FULL
PURPOSES AND OBJECTIVES OF CONGRESS."  HINES V. DAVIDOWITZ, 312 U.S.
52, 67 (1941).  SEE FLORIDA AVOCADO GROWERS V. PAUL, 373 U.S. 132, 141
(1963).  WE STATED IN SEARS, ROEBUCK & CO. V. STIFFEL CO., 376 U.S.
225, 229 (1964), THAT WHEN STATE LAW TOUCHES UPON THE AREA OF FEDERAL
STATUTES ENACTED PURSUANT TO CONSTITUTIONAL AUTHORITY, "IT IS 'FAMILIAR
DOCTRINE' THAT THE FEDERAL POLICY 'MAY NOT BE SET AT NAUGHT, OR ITS
BENEFITS DENIED' BY THE STATE LAW.  SOLA ELEC.  CO. V. JEFFERSON ELEC. 
CO., 317 U.S. 173, 176 (1942).  THIS IS TRUE, OF COURSE, EVEN IF THE
STATE LAW IS ENACTED IN THE EXERCISE OF OTHERWISE UNDOUBTED STATE
POWER.". 

THE LAWS WHICH THE COURT OF APPEALS IN THIS CASE HELD TO BE IN
CONFLICT WITH THE OHIO LAW OF TRADE SECRETS WERE THE PATENT LAW PASSED
BY THE CONGRESS IN THE UNCHALLENGED EXERCISE OF ITS CLEAR POWER UNDER
ART. I, 8, CL. 8, OF THE CONSTITUTION.  THE PATENT LAW DOES NOT
EXPLICITLY ENDORSE OR FORBID THE OPERATION OF TRADE SECRET LAW. 
HOWEVER, AS WE HAVE NOTED, IF THE SCHEME OF PROTECTION DEVELOPED BY
OHIO RESPECTING TRADE SECRETS "CLASHES WITH THE OBJECTIVES OF THE
FEDERAL PATENT LAWS,"  SEARS, ROEBUCK & CO. V. STIFFEL CO.., SUPRA, AT
231, THEN THE STATE LAW MUST FALL.  TO DETERMINE WHETHER THE OHIO LAW
"CLASHES" WITH THE FEDERAL LAW IT IS HELPFUL TO EXAMINE THE OBJECTIVES
OF BOTH THE PATENT AND TRADE SECRET LAWS. 

THE STATED OBJECTIVE OF THE CONSTITUTION IS GRANTING THE POWER TO
CONGRESS TO LEGISLATE IN THE AREA OF INTELLECTUAL PROPERTY IS TO
"PROMOTE, THE PROGRESS OF SCIENCE AND USEFUL ARTS."  THE PATENT LAWS
PROMOTE THIS PROGRESS BY OFFERING A RIGHT OF EXCLUSION FOR A LIMITED
PERIOD AS AN INCENTIVE TO INVENTORS TO RISK THE OFTEN ENORMOUS COSTS IN
TERMS OF TIME, RESEARCH, AND DEVELOPMENT.  THE PRODUCTIVE EFFORT
THEREBY FOSTERED WILL HAVE A POSITIVE EFFECT ON SOCIETY THROUGH THE
INTRODUCTION OF NEW PRODUCTS AND PROCESSES OF MANUFACTURE INTO THE
ECONOMY, AND THE EMANATIONS BY WAY OF INCREASED EMPLOYMENT AND BETTER
LIVES FOR OUR CITIZENS.  IN RETURN FOR THE RIGHT OF EXCLUSION--THIS
"REWARD FOR INVENTIONS," UNIVERSAL OIL CO. V. GLOBE CO., 322 U.S. 471,
484 (1944)--THE PATENT LAWS IMPOSE UPON THE INVENTOR A REQUIREMENT OF
DISCLOSURE.  TO INSURE ADEQUATE AND FULL DISCLOSURE SO THAT UPON THE
EXPIRATION OF THE 17-YEAR PERIOD "THE KNOWLEDGE OF THE INVENTION
ENSURES TO THE PEOPLE, WHO ARE THUS ENABLED WITHOUT RESTRICTION TO
PRACTICE IT AND PROFIT BY ITS USE," UNITED STATES V. DUBILIER CONDENSER
CORP., 289 U.S. 178, 187 (1933), THE PATENT LAWS REQUIRE /10/  THAT THE
PATENT APPLICATION SHALL INCLUDE A FULL AND CLEAR DESCRIPTION OF THE
INVENTION AND "OF THE MANNER AND PROCESS OF MAKING AND USING IT" SO
THAT ANY PERSON SKILLED IN THE ART MAY MAKE AND USE THE INVENTION.  35
U.S.C. 112.  WHEN A PATENT IS GRANTED AND THE INFORMATION CONTAINED IN
IT IS CIRCULATED TO THE GENERAL PUBLIC AND THOSE ESPECIALLY SKILLED IN
THE TRADE, SUCH ADDITIONS TO THE GENERAL STORE OF KNOWLEDGE ARE OF SUCH
IMPORTANCE TO THE PUBLIC WEAL THAT THE FEDERAL GOVERNEMNT IS WILLING TO
PAY THE HIGH PRICE OF 17 YEARS OF EXCLUSIVE USE FOR ITS DISCLOSURE,
WHICH DISCLOSURE, IT IS ASSUMED, WILL STIMULATE IDEAS AND THE EVENTUAL
DEVELOPMENT OF FURTHER SIGNIFICANT ADVANCES IN THE ART.  THE COURT HAS
ALSO ARTICULATED ANOTHER POLICY OF THE PATENT LAW: THAT WHICH IS IN THE
PUBLIC DOMAIN CANNOT BE REMOVED THEREFROM BY ACTION OF THE STATES. 

"(FEDERAL LAW REQUIRES THAT ALL IDEAS IN GENERAL CIRCULATION BE
DEDICATED TO THE COMMON GOOD UNLESS THEY ARE PROTECTED BY A VALID
PATENT."  LEAR, INC. V. ADKINS, 395 U.S., AT 668.  SEE ALSO GOLDSTEIN
V. CALIFORNIA, 412 U.S., AT 570 - 571; SEARS, ROEBUCK & CO. V. STIFFEL
CO., SUPRA; COMPCO CORP. V. DAY-BRITE LIGHTING, INC., 376 U.S. 234, 237
- 238 (1964); INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS, 248 U.S.
215, 250 (1918) (BRANDEIS, J., DISSENTING).     THE MAINTENANCE OF
STANDARDS OF COMMERCIAL ETHICS AND THE ENCOURAGEMENT OF INVENTION ARE
THE BROADLY STATED POLICIES BEHIND TRADE SECRET LAW.  "THE NECESSITY OF
GOOD FAITH AND HONEST, FAIR DEALING, IS THE VERY LIFE AND SPIRIT OF THE
COMMERCIAL WORLD."  NATIONAL TUBE CO. V. EASTERN TUBE CO., 3 OHIO
C.C.R. (N. S.), AT 462.  /11/  IN A. O. SMITH CORP. V. PETROLEUM IRON
WORKS CO., 73 F.2D, AT 539, THE COURT EMPHASIZED THAT EVEN THOUGH A
DISCOVERY MAY NOT BE PATENTABLE, THAT DOES NOT

"DESTROY THE VALUE OF THE DISCOVERY TO ONE WHO MAKES IT, OR
ADVANTAGE THE COMPETITOR WHO BY UNFAIR MEANS, OR AS THE BENEFICIARY OF
A BROKEN FAITH, OBTAINS THE DESIRED KNOWLEDGE WITHOUT HIMSELF PAYING
THE PRICE IN LABOR, MONEY, OR MACHINES EXPENDED BY THE DISCOVERER."  IN
WEXLER V. GREENBERG, 399 PA. 569, 569, 578 - 579, 160 A.2D 430, 434 -
435 (1960), THE PENNSYLVANIA SUPREME COURT NOTED THE IMPORTANCE OF
TRADE SECRET PROTECTION TO THE SUBSIDIZATION OF RESEARCH AND
DEVELOPMENT AND TO INCREASED ECONOMIC EFFICIENCY WITHIN LARGE COMPANIES
THROUGH THE DISPERSION OF RESPONSIBILITIES FOR CREATIVE DEVELOPMENTS. 
/12/ 

HAVING NOW IN MIND THE OBJECTIVES OF BOTH THE PATENT AND TRADE
SECRET LAW, WE TURN TO AN EXAMINATION OF THE INTERACTION OF THESE
SYSTEMS OF PROTECTION OF INTELLECTUAL PROPERTY--ONE ESTABLISHED BY THE
CONGRESS AND THE OTHER BY A STATE--TO DETERMINE WHETHER AND UNDER WHAT
CIRCUMSTANCES THE LATTER MIGHT CONSTITUTE "TOO GREAT AN ENCROACHMENT ON
THE FEDERAL PATENT SYSTEM TO BE TOLERATED."  SEARS, ROEBUCK & CO. V.
STIFFEL CO., 376 U.S., AT 232. 

AS WE NOTED EARLIER, TRADE SECRET LAW PROTECTS ITEMS WHICH WOULD NOT
BE PROPER SUBJECTS FOR CONSIDERATION FOR PATENT PROTECTION UNDER 35
U.S.C. 101.  AS IN THE CASE OF THE RECORDINGS IN GOLDSTEIN V.
CALIFORNIA, CONGRESS, WITH RESPECT TO NONPATENTABLE SUBJECT MATTER,
"HAS DRAWN NO BALANCE; RATHER, IT HAS LEFT THE AREA UNATTENDED, AND NO
REASON EXISTS WHY THE STATE SHOULD NOT BE FREE TO ACT."  GOLDSTEN V.
CALIFORNIA, SUPRA, AT 570 (FOOTNOTE OMMITTED). 

SINCE NO PATENT IS AVAILABLE FOR A DISCOVERY, HOWEVER USEFUL, NOVEL,
AND NONOBVIOUS, UNLESS IT FALLS WITHIN ONE OF THE EXPRESS CATEGORIES OF
PATENTABLE SUBJECT LATTER OF 35 U.S.C. 101, THE HOLDER OF SUCH A
DISCOVERY WOULD HAVE NO REASON TO APPLY FOR A PATENT WHETHER TRADE
SECRET PROTECTION EXISTED OR NOT.  ABOLITION OF TRADE SECRET PROTECTION
WOULD, THEREFORE, NOT RESULT IN INCREASED DISCLOSURE TO THE PUBLIC OF
DISCOVERIES IN THE AREA OF NONPATENTABLE SUBJECT MATTER.  ALSO, IT IS
HARD TO SEE HOW THE PUBLIC WOULD BE BENEFITED BY DISCLOSURE OF CUSTOMER
LISTS OR ADVERTISING CAMPAIGNS; IN FACT, KEEPING SUCH ITEMS SECRET
ENCOURAGES BUSINESSES TO INITIATE NEW AND INDIVIDUALIZED PLANS OF
OPERATION, AND CONSTRUCTIVE COMPETITION RESULTS.  THIS, IN TURN, LEADS
TO A GREATER VARIETY OF BUSINESS METHODS THAN WOULD OTHERWISE BE THE
CASE IF PRIVATELY DEVELOPED MARKETING AND OTHER DATA WERE PASSED
ILLICITLY AMONG FIRMS INVOLVED IN THE SAME ENTERPRISE. 

CONGRESS HAS SPOKEN IN THE AREA OF THOSE DISCOVERIES WHICH FALL
WITHIN ONE OF THE CATEGORIES OF PATENTABLE SUBJECT MATTER OF 35 U.S.C.
101 AND WHICH ARE, THEREFORE, OF A NATURE THAT WOULD BE SUBJECT TO
CONSIDERATION FOR A PATENT.  PROCESSES, MACHINES, MANUFACURES,
COMPOSITIONS OF MATTER AN IMPROVEMENTS THEREOF, WHICH MEET THE TESTS OF
UTILITY, NOVELTY, AND NONOBVIOUSNESS ARE ENTITLED TO BE PATENTED, BUT
THOSE WHICH DO NOT, ARE NOT.  THE QUESTION REMAINS WHETHER THOSE ITEMS
WHICH ARE PROPER SUBJECTS FOR CONSIDERATION FOR A PATENT MAY ALSO HAVE
AVAILABLE THE ALTERNATIVE PROTECTION ACCORDED BY TRADE SECRET LAW. 

CERTAINLY THE PATENT POLICY OF ENCOURAGING INVENTION IS NOT
DISTURBED BY THE EXISTENCE OF ANOTHER FORM OF INCENTIVE TO INVENTION. 
IN THIS RESPECT THE TWO SYSTEMS ARE NOT IN CONFLICT.  SIMILARLY, THE
POLICY THAT MATTER ONCE IN THE PUBLIC DOMAIN MUST REMAIN IN THE PUBLIC
DOMAIN IS NOT INCOMPATIBLE WITH THE EXISTENCE OF TRADE SECRET
PROTECTION.  BY DEFINITION A TRADE SECRET HAS NOT BEEN PLACED IN THE
PUBLIC DOMAIN.  /13/ 

THE MORE DIFFICULT OBJECTIVE OF THE PATENT LAW TO RECONCILE WITH
TRADE SECRET LAW IS THAT OF DISCLOSURE, THE QUID PRO QUO OF THE RIGHT
TO EXCLUDE.  UNIVERSAL OIL CO. V. GLOBE CO., 322 U.S. AT 484.  WE ARE
HELPED IN THIS STAGE OF THE ANALYSIS BY JUDGE HENRY FRIENDLY'S OPINION
IN PAINTON & CO. V. BOURNS, INC., 442 F.2D 216 (CA2 1971).  THERE THE
COURT OF APPEALS THOUGHT IT USEFUL, IN DETERMINING WHETHER INVENTORS
WILL REFRAIN BECAUSE OF THE EXISTENCE OF TRADE SECRET LAW FROM APPLYING
FOR PATENTS, THEREBY DEPRIVING THE PUBLIC FROM LEARNING OF THE
INVENTION, TO DISTINGUISH BETWEEN THREE CATEGORIES OF TRADE SECRETS: 

"(1) THE TRADE SECRET BELIEVED BY ITS OWNER TO CONSTITUTE A VALIDLY
PATENTABLE INVENTION; (2) THE TRADE SECRET KNOWN TO ITS OWNER NOT TO BE
SO PATENTABLE; AND (3) THE TRADE SECRET WHOSE VALID PATENTABILITY IS
CONSIDERED DUBIOUS."  ID., AT 224.  TRADE SECRET PROTECTION IN EACH OF
THESE CATEGORIES WOULD RUN AGAINST BREACHES OF CONFIDENCE--THE EMPLOYEE
AND LICENSEE SITUATIONS--AND THEFT AND OTHER FORMS OF INDUSTRIAL
ESPIONAGE. 

AS TO TRADE SECRET KNOWN NOT TO MEET THE STANDARDS OF PATENTABILITY,
VERY LITTLE IN THE WAY OF DISCLOSURE WOULD BE ACCOMPLISHED BY
ABOLISHING TRADE SECRET PROTECTION.  WITH TRADE SECRETS OF
NONPATENTABLE SUBJECT MATTER, THE PATENT ALTERNATIVE WOULD NOT
REASONABLY BE AVAILABLE TO THE INVENTOR.  "THERE CAN BE NO PUBLIC
INTEREST IN STIMULATING DEVELOPERS OF SUCH (UNPATENTABLE) KNOWHOW TO
FLOOD AN OVERBURDENED PATENT OFFICE WITH APPLICATIONS (FOR) WHAT THEY
DO NOT CONSIDER PATENTABLE."  IBID.  THE MERE FILING OF APPLICATIONS
DOOMED TO BE TURNED DOWN BY THE PATENT OFFICE WILL FORTH NO NEW PUBLIC
KNOWLEDGE OR ENLIGHTENMENT, SINCE UNDER FEDERAL STATUTE AND REGULATION
PATENT APPLICATIONS AND ABANDONED PATENT APPLICATIONS ARE HELD BY THE
PATENT OFFICE IN CONFIDENCE AND ARE NOT OPEN TO PUBLIC INSPECTION.  35
U.S.C. 122; 37 CFR 1.14(B). 

EVEN AS THE EXTENSION OF TRADE SECRET PROTECTION TO PATENTABLE
SUBJECT MATTER THAT THE OWNER KNOWS WILL NOT MEET THE STANDARDS OF
PATENTABILITY WILL NOT CONFLICT WITH THE PATENT POLICY OF DISCLOSURE,
IT WILL HAVE A DECIDEDLY BENEFICIAL EFFECT ON SOCIETY.  TRADE SECRET
LAW WILL ENCOURAGE INVENTION IN AREAS WHERE PATENT LAW DOES NOT REACH,
AND WILL PROMPT THE INDEPENDENT INNOVATOR TO PROCEED WITH THE DISCOVERY
AND EXPLOITATION OF HIS INVENTION.  COMPETITION IS FOSTERED AND THE
PUBLIC IS NOT DEPRIVED OF THE USE OF VALUABLE, IF NOT QUITE PATENTABLE,
INVENTION.  /14/ 

EVEN IF TRADE SECRET PROTECTION AGAINST THE FAITHLESS EMPLOYEE WERE
ABOLISHED, INVENTIVE AND EXPLOITIVE EFFORT IN THE AREA OF PATENTABLE
SUBJECT MATTER THAT DID NOT MEET THE STANDARDS OF PATENTABILITY WOULD
CONTINUE, ALTHOUGH AT A REDUCED LEVEL.  ALTERNATIVELY WITH THE EFFORT
THAT REMAINED, HOWEVER, WOULD COME AN INCREASE IN THE AMOUNT OF SELF
HELP THAT INNOVATIVE COMPANIES WOULD EMPLOY.  KNOWLEDGE WOULD BE WIDELY
DISPERSED AMONG THE EMPLOYEES OF THOSE STILL ACTIVE IN RESEARCH. 
SECURITY PRECAUTIONS NECESSARILY WOULD BE INCREASED, AND SALARIES AND
FRINGE BENEFITS OF THOSE FEW OFFICERS OR EMPLOYEES WHO HAD TO KNOW THE
WHOLE OF THE SECRET INVENTION WOULD BE FIXED IN AN AMOUNT THOUGH
SUFFICIENT TO ASSURE THEIR LOYALTY.  /15/  SMALLER COMPANIES WOULD BE
PLACED AT A DISTINCT ECONOMIC DISADVANTAGE, SINCE THE COSTS OF THIS
KIND OF SELF-HELP COULD BE GREAT, AND THE COST TO THE PUBLIC OF THE USE
OF THIS INVENTION WOULD BE INCREASED.  THE INNOVATIVE ENTREPRENEUR WITH
LIMITED RESOURCES WOULD TEND TO CONFINE HIS RESEARCH EFFORTS TO HIMSELF
AND THOSE FEW HE FELT HE COULD TRUST WITHOUT THE ULTIMATE ASSURANCE OF
LEGAL PROTECTION AGAINST BREACHES OF CONFIDENCE.  AS A RESULT,
ORGANIZED SCIENTIFIC AND TECHNOLOGICAL RESEARCH COULD BECOME
FRAGMENTED, AND SOCIETY, AS A WHOLE, WOULD SUFFER. 

ANOTHER PROBLEM THAT WOULD ARISE IF STATE SECRET PROTECTION WERE
PRECLUDED IS IN THE AREA OF LICENSING OTHERS TO EXPLOIT SECRET
PROCESSES.  THE HOLDER OF A TRADE SECRET WOULD NOT LIKELY SHARE HIS
SECRET WITH MANUFACTURER WHO CANNOT BE PLACED UNDER BINDING LEGAL
OBLIGATION TO PAY A LICENSE FEE OR TO PROTECT THE SECRET.  THE RESULT
WOULD BE A HOARD RATHER THAN DISSEMINATE KNOWLEDGE.  PAINTON & CO. V.
BOURNS, INC., 442 F.2D, AT 223.  INSTEAD, THEN, OF LICENSING OTHERS TO
USE HIS INVENTION AND MAKING THE MOST EFFICIENT USE OF EXISTING
MANUFACTURING AND MARKETING STRUCTURES WITHIN THE INDUSTRY, THE TRADE
SECRET HOLDER WOULD TEND EITHER TO LIMIT HIS UTILIZATION OF THE
INVENTION, THEREBY DEPRIVING THE PUBLIC OF THE MAXIMUM BENEFIT OF ITS
USE, OR ENGAGE IN THE TIME-CONSUMING AND ECONOMICALLY WASTEFUL
ENTERPRISE OF CONSTRUCTING DUPLICATIVE MANUFACTURING AND MARKETING
MECHANISMS FOR THE EXPLOITATION OF THE INVENTION.  THE DETRIMENTAL
MISALLOCATION OF RESOURCES AND ECONOMIC WASTE THAT WOULD THUS TAKE
PLACE IF TRADE SECRET PROTECTION WERE ABOLISHED WITH RESPECT TO
EMPLOYEES OR LICENSEES CANNOT BE JUSTIFIED BY REFERENCE TO ANY POLICY
THAT THE FEDERAL PATENT LAW SEEKS TO ADVANCE. 

NOTHING IN THE PATENT LAW REQUIRES THAT STATE REFRAIN FROM ACTION TO
PREVENT INDUSTRIAL ESPIONAGE.  IN ADDITION TO THE INCREASED COSTS FOR
PROTECTION FROM BURGLARY, WIRE-TAPPING, BRIBERY, AND THE OTHERS MEANS
USED TO MISAPPROPRIATE TRADE SECRETS, THERE IS THE INEVITABLE COST TO
THE BASIC DECENCY OF SOCIETY WHEN ONE FIRM STEALS FROM ANOTHER.  A MOST
FUNDAMENTAL HUMAN RIGHT, THAT OF PRIVACY, IS THREATENED WHEN INDUSTRIAL
ESPIONAGE IS CONDONED OR IS MADE PROFITABLE; /16/  THE STATE INTEREST
IN DENYING PROFIT TO SUCH ILLEGAL VENTURES IS UNCHALLENGEABLE. 

THE NEXT CATEGORY OF PATENTABLE SUBJECT MATTER TO DEAL WITH IS THE
INVENTION WHOSE HOLDER HAS A LEGITIMATE DOUBT AS TO ITS PATENTABILITY. 
THE RISK OF EVENTUAL PATENT INVALIDITY BY THE COURTS AND THE COSTS
ASSOCIATED WITH THAT RISK MAY WELL IMPEL SOME WITH A GOOD-FAITH DOUBT
AS TO PATENTABILITY NOT TO TAKE THE TROUBLE TO SEEK TO OBTAIN AND
DEFEND PATENT PROTECTION FOR THEIR DISCOVERIES, REGARDLESS OF THE
EXISTENCE OF TRADE SECRET PROTECTION.  TRADE SECRET PROTECTION WOULD
ASSIST THOSE INVENTORS IN THE MORE EFFICIENT EXPLOITATION OF THEIR
DISCOVERIES AND NOT CONFLICT WITH THE PATENT LAW.  IN MOST CASES OF
GENUINE DOUBT AS TO PATENT VALIDITY THE POTENTIAL REWARDS OF PATENT
PROTECTION ARE SO FAR SUPERIOR TO THOSE ACCRUING TO HOLDERS OF TRADE
SECRETS, THAT THE HOLDERS OF SUCH INVENTIONS WILL SEEK PATENT
PROTECTION, IGNORING THE TRADE SECRET ROUTE.  FOR THOSE INVENTORS "ON
THE LINE" AS TO WHETHER TO SEEK PATENT SECRET PROTECTION, THE ABOLITION
OF TRADE SECRET PROTECTION MIGHT ENCOURAGE SOME TO APPLY FOR A PATENT
WHO OTHERWISE WOULD NOT HAVE DONE SO.  FOR SOME OF THOSE SO ENCOURAGED,
NO PATENT WILL BE GRANTED AND THE RESULT 

"WILL HAVE BEEN AN UNNECESSARY POSTPONEMENT IN THE DIVULGING OF THE
TRADE SECRET TO PERSONS WILLING TO PAY FOR IT.  IF (THE PATENT DOES
ISSUE), IT MAY WELL BE INVALID, YET MANY WILL PREFER TO PAY A MODEST
ROYALTY THAN TO CONTEST IT, EVEN THOUGH LEAR ALLOWS THEM TO ACCEPT A
LICENSE AND PURSUE THE CONTEST WITHOUT PAYING ROYALITIES WHILE THE
FIGHT GOES ON.  THE RESULT IN SUCH A CASE WOULD BE UNJUSTIFIED ROYALTY
PAYMENTS FROM MANY WHO WOULD PREFER NOT TO PAY THEM RATHER THAN AGREED
FEES FROM ONE OR A FEW WHO ARE ENTIRELY WILLING TO DO SO."  PAINTON &
CO. V. BOURNS, INC., 442 F.2D, AT 225.  THE POINT IS THAT THOSE WHO
MIGHT BE ENCOURAGED TO FILE FOR PATENTS BY THE ABSENCE OF TRADE SECRET
LAW WILL INCLUDE INVENTORS POSSESSING THE CHAFF AS WELL AS THE WHEAT. 
SOME OF THE CHAFF--THE NONPATENTABLE DISCOVERIES--WILL BE THROWN OUT BY
THE PATENT OFFICE, BUT IN THE MEANTIME SOCEITY WILL HAVE DEPRIVED OF
USE OF THOSE DISCOVERIES THROUGH TRADE SECRET-PROTECTED LICENSING. 
SOME OF THE CHAFF MAY NOT BE THROWN OUT.  THIS COURT HAS NOTED THE
DIFFERENCE BETWEEN THE STANDARDS USED BY THE PATENT OFFICE AND THE
COURTS TO DETERMINE PATENTABILITY.  GRAHM V. JOHN DEERE CO., 383 U.S.
1, 18 (1966).  /17/  IN LEAR, INC. V. ADKINS, SUPRA, THE COURT THOUGHT
THAT AN INVALID PATENT WAS SO SERIOUS A THREAT TO THE FREE USE OF IDEAS
ALREADY IN THE PUBLIC DOMAIN THAT THE COURT PERMITTED LICENSEES OF THE
PATENT HOLDER TO CHALLENGE THE VALIDITY OF THE PATENT.  BETTER HAD THE
INVALID PATENT NEVER BEEN ISSUED.  MORE OF THOSE PATENTS WOULD LIKELY
ISSUE TRADE SECRET.  LAW WERE ABOLISHED.  ELIMINATING TRADE SECRET LAW
FOR THE DOUBTFULLY PATENTABLE INVENTION IS THUS LIKELY TO HAVE
DELETERIOUS EFFECTS ON SOCIETY AND PATENT POLICY WHICH WE CANNOT SAY
BALANCED OUT BY THE SPECULATIVE GAIN WHICH MIGHT RESULT FROM THE
ENCOURAGEMENT OF SOME INVENTORS WITH DOUBTFULLY PATENTABLE INVENTIONS
WHICH DESERVE PATENT PROTECTION TO COME FORWARD AND APPLY FOR PATENTS. 
THERE IS NO CONFLICT, THAN, BETWEEN TRADE SECRET LAW AND THE PATENT LAW
POLICY OF DISCLOSURE, AT LEAST INSOFAR AS THE FIRST TWO CATAGORIES OF
PATENTABLE SUBJECT MATTER ARE CONCERNED. 

THE FINAL CATEGORY OF PATENTABLE SUBJECT MATTER TO DEAL WITH IS THE
CLEARLY PATENTABLE INVENTION, I. E., THAT INVENTION WHICH THE OWNER
BELIEVES TO MEET THE STANDARDS OF PATENTABILITY.  IT IS HERE THAT THE
FEDERAL INTEREST IN DISCLOSURE IS AT ITS PEAK; THESE INVENTIONS, NOVEL,
USEFUL AND NONOBVIOUS, ARE "'THE THINGS WHICH ARE WORTH TO THE PUBLIC
EMBARRASSMENT OF AN EXCLUSIVE PATENT.'"  GRAHM V. JOHN DEERE CO.,
SUPRA, AT 9 (QUOTING THOMAS JEFFERSON).  THE INTEREST OF THE PUBLIC IS
THAT THE BARGAIN OF 17 YEARS IS EXCLUSIVE USE IN RETURN FOR DISCLOSURE
BE ACCEPTED.  IF A STATE, THROUGH A SYSTEM OF PROTECTION, WERE TO CAUSE
A SUBSTANTIAL RISK THAT HOLDERS OF PATENTABLE INVENTIONS WOULD NOT SEEK
PATENTS, BUT RATHER WOULD RELY ON THE STATE PROTECTION, WE WOULD BE
COMPELLED TO HOLD THAT SUCH A SYSTEM COULD NOT CONSTITUTIONALLY
CONTINUE TO EXIST.  IN THE CASE OF TRADE SECRET LAW NO REASONABLE RISK
OF DETERRENCE FROM PATENT APPLICATION BY THOSE WHO CAN REASONABLY
EXPECT TO BE GRANTED PATENTS EXISTS.     TRADE SECRET LAW PROVIDES FAR
WEAKER PROTECTION IN MANY RESPECTS THAN THE PATENT LAW.  /18/  WHILE
TRADE SECRET LAW DOES NOT FORBID THE DISCOVERY OF THE TRADE BY FAIR AND
HONEST MEANS, E. G., INDEPENDENT CREATION OR REVERSE ENGINEERING,
PATENT LAW OPERATES "AGAINST THE WORLD," FORBIDDING ANY USE OF THE
INVENTION FOR WHATEVER PURPOSE FOR A SIGNIFICANT LENGTH OF TIME.  THE
HOLDER OF A TRADE SECRET ALSO TAKES A SUBSTANTIAL RISK THAT THE SECRET
WILL BE PASSED ON TO HIS COMPETITORS, BY THEFT OR BY BREACH OF A
CONFIDENTIAL RELATIONSHIP, IN A MANNER NOT EASILY SUSCEPTIBLE OF
DISCOVERY OR PROOF.  PAINTON & CO. V. BOURNS, INC., 442 F.2D, AT 224. 
WHERE PATENT LAW ACTS AS A BARRIER, TRADE SECRET LAW FUNCTIONS
RELATIVELY AS A SIEVE.  THE POSSIBILITY THAT AN INVENTOR WHO BELIEVES
HIS INVENTION MEETS THE STANDARDS OF PATENTABILITY WILL SIT BACK, RELY
ON TRADE SECRET LAW, AND AFTER ONE YEAR OF USE FORFEIT ANY RIGHT TO
PATENT PROTECTION, 35 U.S.C. 102 (B), IS REMOTE INDEED. 

NOR DOES SOCIETY FACE MUCH RISK THAT SCIENTIFIC OR TECHNOLOGICAL
PROGRESS WILL BE IMPEDED BY THE RARE INVENTOR WITH A PATENTABLE
INVENTION WHO CHOOSES TRADE SECRET PROTECTION OVER PATENT PROTECTION. 
THE RIPENESS OF TIME CONCEPT OF INVENTION, DEVELOPED FROM THE STUDY OF
THE MANY INDEPENDENT MULTIPLE DISCOVERIES IN HISTORY, PREDICTS THAT IF
A PARTICULAR INDIVIDUAL HAD NOT MADE A PARTICULAR DISCOVERY OTHERS
WOULD HAVE, AND IN PROBABLY A RELATIVELY SHORT PERIOD OF TIME.  IF
SOMETHING IS TO BE DISCOVERED AT ALL VERY LIKELY IT WILL BE DISCOVERED
BY MORE THAN ONE PERSON.  SINGLETONS AND MULTIPLE IN SCIENCE (1961), IN
R. MERTON, THE SOCIOLOGY OF SCIENCE 343 (1973); J. COLE & S. COLE,
SOCIAL STRATIFICATION IN SCIENCE 12 - 13, 229 - 230 (1973); OGBURN &
THOMAS, ARE INVENTIONS INEVITABLE?, 37 POL.  SCI.  Q. 83 (1922).  /19/
EVEN WERE AN INVENTOR TO KEEP HIS DISCOVERY COMPLETELY TO HIMSELF,
SOMETHING THAT NEITHER THE PATENT NOR TRADE SECRET LAWS FORBID, THERE
IS HIGH PROBABILITY THAT IT WILL BE SOON INDEPENDENTLY DEVELOPED.  IF
THE INVENTION, THOUGH STILL A TRADE SECRET, IS PUT INTO PUBLIC USE, THE
COMPETITION IS ALERTED TO THE EXISTENCE OF THE INVENTOR'S SOLUTION TO
THE PROBLEM AND MAY BE ENCOURAGED TO MAKE AN EXTRA EFFORT TO
INDEPENDENTLY FIND THE SOLUTION THUS KNOWN TO BE POSSIBLE THE INVENTOR
FACES PRESSURES NOT ONLY FROM THE PRIVATE INDUSTRY, BUT FROM THE
SKILLED SCIENTISTS WHO WORK IN OUR UNIVERSITIES AND OUR OTHER GREAT
PUBLICLY SUPPORTED CENTERS OF LEARNING AND RESEARCH. 

WE CONCLUDE THAT THE EXTENSION OF TRADE SECRET PROTECTION TO CLEARLY
PATENTABLE INVENTIONS DOES NOT CONFLICT WITH THE PATENT POLICY OF
DISCLOSURE.  PREHAPS BECAUSE TRADE SECRET LAW DOES NOT PRODUCE ANY
POSITIVE EFFECTS IN THE AREA OF CLEARLY PATENTABLE INVENTIONS, AS
OPPOSED TO THE BENEFICIAL EFFICTS RESULTING FROM THE TRADE SECRET
PROTECTION IN THE AREAS OF THE DOUBTFULLY PATENTABLE AND THE CLEARLY
UNPATENTABLE INVENTIONS, IT HAS BEEN SUGGESTED THAT PARTIAL PRE-EMPTION
MAY BE APPROPRIATE, AND THAT COURTS SHOULD REFUSE TO APPLY TRADE SECRET
PROTECTION TO INVENTIONS WHICH THE HOLDER SHOULD HAVE PATENTED, AND
WHICH WOULD HAVE BEEN, THEREBY, DISCLOSED.  /20/ HOWEVER, SINCE THERE
IS NO REAL POSSIBILITY THAT TRADE SECRET LAW WILL CONFLICT WITH THE
FEDERAL POLICY FAVORING DISCLOSURE OF CLEARLY PATENTABLE INVENTIONS
PARTIAL PRE-EMPTION IS INAPPROPRIATE.  PARTIAL PRE-EMPTION,
FURTHERMORE, COULD WELL CREATE SERIOUS PROBLEMS FOR STATE COURTS IN THE
ADMINISTRATION OF TRADE SECRET LAW.  AS A PRELIMINARY MATTER IN TRADE
SECRET ACTIONS, STATE COURTS WOULD BE OBLIGED TO DISTINGUISH BETWEEN
WHAT A REASONABLE INVENTOR WOULD AND WOULD NOT CORRECTLY CONSIDER TO BE
CLEARLY PATENTABLE, WITH THE HOLDER OF THE TRADE SECRET ARGUING THAT
THE INVENTION WAS NOT PATENTABLE AND THE MISAPPROPRIATOR OF THE TRADE
SECRET ARGUING ITS UNDOUBTED NOVELTY, UTILTIY, AND NONOBVIOUSNESS. 
FEDERAL COURTS HAVE A DIFFICULT ENOUGH TIME TRYING TO DETERMINE WHETHER
AN INVENTION, NARROWED BY THE PATENT APPLICATION PROCEDURE /21/  AND
FIXED IN THE SPECIFICATIONS WHICH DESCRIBE THE INVENTION FOR WHICH THE
PATENT HAS BEEN GRANTED, IS PATENTABLE.  /22/ ALTHOUGH STATE COURTS IN
SOME CIRCUMSTANCES MUST JOIN FEDERAL COURTS IN JUDGING WHETHER AN
ISSUED PATENT IS VALID, LEAR, INC. V. ADKINS, SUPRA, IT WOULD BE
UNDESIRABLE TO IMPOSE THE ALMOST IMPOSSIBLE BURDEN ON STATE COURTS TO
DETERMINE THE PATENTABILITY--IN FACT AND IN THE MIND OF REASONABLE
INVENTOR--OF A DISCOVERY WHICH HAS NOT BEEN PATENTED AND REMAINS
ENTIRELY UNCIRCUMSCRIBED BY EXPERT ANALYSIS IN THE ADMINISTRATIVE
PROCESS.  NEITHER COMPLETE NOR PARTIAL PRE-EMPTION OF STATE TRADE
SECRET LAW IS JUSTIFIED. 

OUR CONCLUSION THAT THE PATENT LAW DOES NOT PRE-EMPT TRADE SECRET
LAW IS IN ACCORD WITH PRIOR CASES OF THIS COURT.  UNIVERSAL OIL CO. V.
GLOBE CO., 322 U.S., AT 484; UNITED STATES V. DUBILIER CONDENSER CORP.,
289 U.S., AT 186 - 187; BECHER V. CONTOURE LABORATORIES, 279 U.S. 388,
391 (1929); DU PONT POWDER CO. V. MASLAND, 244 U.S. 100, 102 (1917);
DR. MILES MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373, 402 - 403
(1911); BOARD OF TRADE V. CHRISTIE GRAIN & STOCK CO., 198 U.S. 236, 250
- 251 (1905).  /23/  TRADE SECRET LAW AND PATENT LAW HAVE CO-EXISTED IN
THIS COUNTRY FOR OVER ONE HUNDRED YEARS.  EACH HAS ITS PARTICULAR ROLE
TO PLAY, AND THE OPERATION OF ONE DOES NOT TAKE AWAY FROM THE NEED FOR
THE OTHER.  TRADE SECRET LAW ENCOURAGES THE DEVELOPMENT AND
EXPLOITATION OF THOSE ITEMS OF LESSER OR DIFFERENT INVENTION THAN MIGHT
BE ACCORDED PROTECTION UNDER THE PATENT LAWS, BUT WHICH ITEMS STILL
HAVE AN IMPORTANT PART TO PLAY IN THE TECHNOLOGICAL AND SCIENTIFIC
ADVANCEMENT OF THE NATION.  TRADE SECRET LAW PROMOTES THE SHARING OF
KNOWLEDGE, AND THE EFFICIENT OPERATION OF INDUSTRY; IT PERMITS THE
INDIVIDUAL INVENTOR TO REAP THE REWARDS OF HIS LABOR BY CONTRACTING
WITH A COMPANY LARGE ENOUGH TO DEVELOP AND EXPLOIT IT.  CONGRESS, BY
ITS SILENCE OVER THESE MANY YEARS, HAS SEEN THE WISDOM OF ALLOWING THE
STATES TO ENFORCE TRADE SECRET PROTECTION.  UNTIL CONGRESS TAKES
AFFIRMATIVE ACTION TO THE CONTRARY, STATES SHOULD BE FREE TO GRANT
PROTECTION TO TRADE SECRETS. 

SINCE WE HOLD THAT OHIO TRADE SECRET LAW IS NOT PRE-EMPTED BY THE
FEDERAL PATENT LAW, THE JUDGMENT OF THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT IS REVERSED AND THE CASE IS REMANDED TO THE COURT OF APPEALS
WITH DIRECTIONS TO REINSTATE THE JUDGMENT OF THE DISTRICT COURT. 

              IT IS SO ORDERED. 

/1/  414 U.S. 818 (1973). 

/2/  478 F.2D 1074 (1973). 

/3/  PAINTON & CO. V. BOURNS, INC., 442 F.2D 216 (CA2 1971); SERVO
CORP. OF AMERICA V. GENERAL ELECTRIC CO., 337 F.2D 716 (CA4 1964),
CERT. DENIED, 383 U.S. 934 (1966); WATER SERVICES, INC. V. TESCO
CHECMICALS, INC. 410 F.2D 163 (CA5 1969); WINSTON RESEARCH CORP. V.
MINNESOTA MINING & MFG. CO., 350 F.2D 134 (CA9 1965); DEKAR INDUSTRIES,
INC. V. BISSETT-BERMAN CORP., 434 F.2D 1304 (CA9 1970), CERT. DENIED,
402 U.S. 945 (1971). 

/4/  OHIO REV. CODE ANN. 1333.51 (C) (SUPP. 1973) PROVIDES: 

"NO PERSON, HAVING OBTAINED POSSESSION OF AN ARTICLE REPRESENTING A
TRADE SECRET OR ACCESS THERETO WITH THE OWNER'S CONSENT, SHALL CONVERT
SUCH ARTICLE TO HIS OWN USE OR THAT OF ANOTHER PERSON, OR THEREAFTER
WITHOUT THE OWNER'S CONSENT MAKE OR CAUSE TO BE MADE A COPY OF SUCH
ARTICLE, OR EXHIBIT SUCH ARTICLE TO ANOTHER." 

OHIO REV. CODE ANN.  1333.99 (E) (SUPP. 1973) PROVIDES: 

"WHOEVER VIOLATES SECTION 1333.51 OF THE REVISED CODE SHALL BE FINED
NOT MORE THAN FIVE THOUSAND DOLLARS, IMPRISONED NOT LESS THAN ONE NOR
MORE THAN TEN YEARS, OR BOTH." 

/5/  E. I. DUPONT DENEMOURS & CO. V. CHRISTOPHER, 431 F.2D 1012 (CA5
1970), CERT. DENIED, 400 U.S. 1024 (1971).  SEE GENERALLY COMMENT,
THEFT OF TRADE SECRETS: THE NEED FOR A STATUTORY SOLUTION 120 U. PA. L.
REV. 378 (1971). 

/6/  NATIONAL TUBE CO. V. EASTERN TUBE CO., 3 OHIO C.C.R. (N. S.) 
459, 462 (1902), AFF'D, 69 OHIO ST. 560, 70 N. E. 1127 (1903). 

/7/  SEE COMMENT, THE STIFFEL DOCTRINE AND THE LAW OF TRADE SECRETS,
62 NW. U. L. REV. 956, 969 (1968). 

/8/  "101.  INVENTIONS PATENTABLE 

"WHOEVER INVENTS OR DISCOVERS ANY NEW AND USEFUL PROCESS, MACHINE,
MANUFACTURE, OR COMPOSITION OF MATTER, OR ANY NEW AND USEFUL
IMPROVEMENT THEREOF, MAY OBTAIN A PATENT THEREFOR, SUBJECT TO THE
CONDITIONS AND REQUIREMENTS OF THIS TITLE. 

"102.  CONDITIONS FOR PATENTABILITY; NOVELTY AND LOSS OF RIGHT TO
PATENT 

"A PERSON SHALL BE ENTITLED TO A PATENT UNLESS--' 

"(A) THE INVENTION WAS KNOWN OR USED BY OTHERS IN THIS COUNTRY, OR
PATENTED OR DESCRIBED IN A PRINTED PUBLICATION IN THIS OR A FOREIGN
COUNTRY, BEFORE THE INVENTION THEREOF BY THE APPLICANT FOR PATENT, OR 

"(B) THE INVENTION WAS PATENTED OR DESCRIBED IN A PRINTED
PUBLICATION IN THIS OR A FOREIGN COUNTRY OR IN PUBLIC USE OR ON SALE IN
THIS COUNTRY, MORE THAN ONE YEAR PRIOR TO THE DATE OF THE APPLICATION
FOR PATENT IN THE UNITED STATES, OR 

"(C) HE HAS ABANDONED THE INVENTION , OR 

"(D) THE INVENTION WAS PATENTED OR CAUSED TO BE PATENTED, OR WAS THE
SUBJECT OF AN INVENTOR'S CERTIFICATE, BY THE APPLICANT OR HIS LEGAL
REPRESENTATIVES OR ASSIGNS IN A FOREIGN COUNTRY PRIOR TO THE DATE OF
THE APPLICATION FOR PATENT IN THIS COUNTRY ON AN APPLICATION FOR PATENT
OR INVENTOR'S CERTIFICATE FILED MORE THAN TWELVE MONTHS BEFORE THE
FILING OF THE APPLICATION IN THE UNITED STATES, OR 

"(E) THE INVENTION WAS DESCRIBED IN A PATENT GRANTED ON AN
APPLICATION FOR PATENT BY ANOTHER FILED IN THE UNITED STATES BEFORE THE
INVENTION THEREOF BY THE APPLICANT FOR PATENT, OR 

"(F) HE DID NOT HIMSELF INVENT THE SUBJECT MATTER SOUGHT TO BE
PATENTED, OR 

"(G) BEFORE THE APPLICANT'S INVENTION THEREOF THE INVENTION WAS MADE
IN THIS COUNTRY BY ANOTHER WHO HAD NOT ABANDONED, SUPPRESSED, OR
CONCEALED IT.  IN DETERMINING PRIORITY OF INVENTION THERE SHALL BE
CONSIDERED NOT ONLY THE RESPECTIVE DATES OF CONCEPTION AND REDUCTION TO
PRACTICE OF THE INVENTION, BUT ALSO THE REASONABLE DILIGENCE OF ONE WHO
WAS FIRST TO CONCEIVE AND LAST TO REDUCE TO PRACTICE FROM A TIME PRIOR
TO CONCEPTION BY THE OTHER. 

"103.  CONDITIONS FOR PATENTABILITY; NON-OBVIOUS SUBJECT MATTER 

"A PATENT MAY NOT BE OBTAINED THOUGH THE INVENTION IS NOT
IDENTICALLY DISCLOSED OR DESCRIBED AS SET FORTH IN SECTION 102 OF THIS
TITLE, IF THE DIFFERENCES BETWEEN THE SUBJECT MATTER SOUGHT TO BE
PATENTED AND THE PRIOR ART ARE SUCH THAT THE SUBJECT MATTER AS A WHOLE
WOULD HAVE BEEN OBVIOUS AT THE TIME THE INVENTION WAS MADE TO A PERSON
HAVING ORDINARY SKILL IN THE ART TO WHICH SAID SUBJECT MATTER
PERTAINS.  PATENTABILITY SHALL NOT BE NEGATIVED BY THE MANNER IN WHICH
THE INVENTION WAS MADE." 

/9/  TITLE 35 U.S.C. 154 PROVIDES: 

"EVERY PATENT SHALL CONTAIN A SHORT TITLE OF THE INVENTION AND A
GRANT TO THE PATENTEE, HIS HEIRS OR ASSIGNS, FOR THE TERM OF SEVENTEEN
YEARS, SUBJECT TO THE PAYMENT OF ISSUE FEES AS PROVIDED FOR IN THIS
TITLE, OF THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OR SELLING
THE INVENTION THROUGHOUT THE UNITED STATES, REFERRING TO THE
SPECIFICATION FOR THE PARTICULARS THEREOF.  A COPY OF THE SPECIFICATION
AND DRAWINGS SHALL BE ANNEXED TO THE PATENT AND BE A PART THEREOF." 

/10/  35 U.S.C. 111. 

/11/  SEE ALSO WINSTON RESEARCH CORP. V. MINNESOTA MINING & MFG. CO.
350 F.2D, AT 138. 

/12/ SEE ALSO WATER SERVICES, INC. V. TESCO CHEMICALS, INC., 410
F.2D, AT 171. 

/13/  AN INVENTION MAY BE PLACED "IN PUBLIC USE OR ON SALE" WITHIN THE
MEANING OF 35 U.S.C. 102(B) WITHOUT LOSING ITS SECRET CHARACTER. 
PAINTON & CO. V. BOURNS, INC., 442 F.2D, AT 224 N.6; METALLIZING
ENGINEERING CO. V. KENYON BEARING & AUTO PARTS CO., 153 F.2D 516, 520
(CA2), CERT. DENIED, 328 U.S. 840 (1946). 

/14/  DOERFER, THE LIMITS ON TRADE SECRET LAW IMPOSED BY FEDERAL
PATENT AND ANTITRUST SUPREMACY, 80 HARV. L. REV. 1432, 1454 (1967). 

/15/  SEE GENERALLY WYDICK, TRADE SECRETS: FEDERAL PREEMPTION IN
LIGHT OF GOLDSTEIN AND KEWANEE (PART II--CONCLUSION), 56 J. PAT.  OFF. 
SOC. 4, 23 - 24 (1974). 

/16/  NOTE, PATENT PREEMPTION OF TRADE SECRET PROTECTION OF
INVENTIONS MEETING JUDICIAL STANDARDS OF PATENTABILITY, 87 HARV. L.
REV. 807, 828 (1974). 

/17/  FOR A POSSIBLE EXPLANATION SEE P. AREEDA, ANTITRUST ANALYSIS
406(D), PP. 327 - 328 (1967). 

/18/  WATER SERVICES, INC. V. TESCO CHEMICALS, INC., 410 F.2D, AT
172. 

/19/  SEE J. WATSON, THE DOUBLE HELIX (1968).  IF WATSON AND CRICK
HAD NOT DISCOVERED THE STRUCTURE OF DNA IT IS LIKELY THAT LINUS PAULING
WOULD HAVE MADE THE DISCOVERY SOON.  OTHER EXAMPLES OF MULTIPLE
DISCOVERY ARE LISTED AT LENGTH IN THE OGBURN AND THOMAS ARTICLE. 

/20/  SEE NOTE, PATENT PREEMPTION OF TRADE SECRET PROTECTION OF
INVENTIONS MEETING JUDICIAL STANDARDS OF PATENTABILITY, 87 HARV. L.
REV. 807 (1974); BRIEF FOR THE UNITED STATES AS AMICUS CURIAE,
PRESENTING THE VIEW WITHIN THE GOVERNMENT FAVORING LIMITED PRE-EMPTION
(WHICH VIEW IS NOT THAT OF THE UNITED STATES, WHICH BELEIVES THAT
PATENT LAW DOES NOT PRE-EMPT STATE TRADE SECRET LAW). 

/21/  SEE P. AREEDA, ANTITRUST ANALYSIS 407, P. 329 (1967). 

/22/  SEE JUDGE L. HAND'S LAMENT IN HARRIES V. AIR KING PRODUCTS
CO., 183 F.2D 158, 162 (CA2 1950). 

/23/ THE COURT OF APPEALS BELOW RELIED, IN PART, ON KENDALL V.
WINSOR, 21 HOW.  322 (1859), A CASE DECIDED NINE YEARS BEFORE TRADE
SECRET LAW WAS IMPORTED INTO THIS COUNTRY FROM ENGLAND BY MEANS OF THE
LANDMARK CASE OF PEABODY V. NORFOLK, 98 MASS. 452 (1868). 

MR. JUSTICE POWELL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE MARSHALL, CONCURRING IN THE RESULT. 

UNLIKE THE COURT, I DO NOT BELIEVE THAT THE POSSIBILITY THAT AN
INVENTOR WITH A PATENTABLE INVENTION WILL RELY ON STATE TRADE SECRET
LAW RATHER THAN APPLY FOR A PATENT IS "REMOTE INDEED."  ANTE, AT 490. 
STATE TRADE SECRET LAW PROVIDES SUBSTANTIAL PROTECTION TO THE INVENTOR
WHO INTENDS TO USE OR SELL THE INVENTION HIMSELF RATHER THAN CLEARLY
SUPERIOR TO THE 17-YEAR MONOPOLY AFFORDED BY THE PATENT LAWS.  I HAVE
NO DOUBT THAT THE EXISTANCE OF TRADE SECRET PROTECTION PROVIDES IN SOME
INSTANCES A SUBSTANTIAL DISINCENTIVE TO ENTRANCE INTO THE PATENT
SYSTEM, AND THUS DEPRIVES SOCIETY OF THE BENEFITS OF PUBLIC DISCLOSURE
OF THE INVENTION WHICH IT IS THE POLICY OF THE PATENT LAWS TO
ENCOURAGE.  THIS CASE MAY WELL BE SUCH AN INSTANCE.     BUT MY VIEW OF
SOUND POLICY IN THIS AREA DOES NOT DISPOSE OF THIS CASE.  RATHER, THE
QUESTION PRESENTED IN THIS CASE IS WHETHER CONGRESS, IN ENACTING THE
PATENT LAWS, INTENDED MERELY TO OFFER INVENTORS A LIMITED MONOPOLY IN
EXCHANGE FOR DISCLOSURE OF THEIR INVENTION, OR INSTEAD TO EXERT
PRESSURE ON INVENTORS TO ENTER INTO THIS EXCHANGE BY WITHDRAWING ANY
ALTERNATIVE POSSIBILITY OF LEGAL PROTECTION FOR THIER INVENTIONS.  I AM
PERSUADED THAT THE FORMER IS THE CASE.  STATE TRADE SECRET LAWS AND THE
FEDERAL PATENT LAWS HAVE CO-EXISTED FOR MANY, MANY YEARS.  DURING THIS
TIME, CONGRESS HAS REPEATEDLY DEMONSTRATED ITS FULL AWARENESS OF THE
EXISTENCE TRADE SECRET SYSTEM, WITHOUT ANY INDICATION OF DISAPPROVAL. 
INDEED, CONGRESS HAS IN A NUMBER OF INSTANCES GIVEN EXPLICIT FEDERAL
PROTECTION TO TADE SECRET INFROMATION PROVIDED TO FEDERAL AGENCIES. 
SEE, E. G., 5 U.S.C. 552(B)(4); 18 U.S.C. 1905; SEE GENERALLY APPENDIX
TO BRIEF FOR PETITIONER.  BECAUSE OF THIS, I CONCLUDE THAT THERE IS
"NEITHER SUCH ACTUAL CONFLICT BETWEEN THE TWO SCHEMES OF REGUALATION
THAT BOTH CANNOT STAND IN THE SAME AREA, NOR EVIDENCE OF A
CONGRESSIONAL DESIGN TO PRE-EMPT THE FIELD."  FLORIDA AVOCADO GROWERS
V. PAUL, 373 U.S. 132, 141 (1963).  I THEREFORE CONCUR IN THE RESULT
REACHED BY THE MAJORITY OF THE COURT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

TODAY'S DECISION IS AT WAR WITH THE PHILOSOPHY OF SEARS, ROEBUCK &
CO. V. STIFFEL CO., 376 U.S. 225, AND COMPCO CORP. V. DAY-BRITE
LIGHTING, INC., 376 U.S. 234.  THOSE CASES INVOLVED PATENTS--ONE OF A
POLE LAMP AND ONE OF FLUORESCENT LIGHTING FIXTURES EACH OF WHICH WAS
DECLARED INVALID.  THE LOWER COURTS HELD, HOWEVER, THAT THOUGH THE
PATENTS WERE INVALID THE SALE OF IDENTICAL OR CONFUSINGLY SIMILAR
PRODUCTS TO THE PRODUCTS OF THE PATENTEES VIOLATED STATE UNFAIR
COMPETITION LAWS.  WE HELD THAT WHEN AN ARTICLE IS UNPROTECTED BY A
PATENT, STATE LAW MAY NOT FORBID OTHERS TO COPY IT, BECAUSE EVERY
ARTICLE NOT COVERED BY A VALID PATENT IS IN THE PUBLIC DOMAIN. 
CONGRESS IN THE PATENT LAWS DECIDED THAT WHERE NO PATENT EXISTED, FREE
COMPETITION SHOULD PREVAIL; THAT WHERE A PATENT IS RIGHTFULLY ISSUED,
THE RIGHT TO EXCLUDE OTHERS SHOULD OBTAIN NO LONGER THAN 17 YEARS, AND
THAT THE STATES MAY NOT "UNDER SOME OTHER LAW, SUCH AS THAT FORBIDDING
UNFAIR COMPETITION, GIVE PROTECTION OF A KIND THAT CLASHES WITH THE
OBJECTIVES OF THE FEDERAL PATENT LAWS,"  /1/  376 U.S., AT 231. 

THE PRODUCT INVOLVED IN THIS SUIT, SODIUM IODIDE SYNTHETIC CRYSTALS,
WAS A PRODUCT THAT COULD BE PATENTED BUT WAS NOT.  HARSHAW THE INVENTOR
APPARENTLY CONTRIBUTED GREATLY TO THE TECHNOLOGY IN THAT FIELD BY
DEVELOPING PROCESSES, PROCEDURES, AND TECHNIQUES THAT PRODUCED MUCH
LARGER CRYSTALS THAN ANY COMPETITOR.  THESE PROCESSES, PROCEDURES, AND
TECHNIQUES WERE ALSO PATENTABLE; BUT NO PATENT WAS SOUGHT.  RATHER
HARSHAW SOUGHT TO PROTECT ITS TRADE SECRETS BY CONTRACTS WITH ITS
EMPLOYEES.  AND THE DISTRICT COURT FOUND THAT, AS A RESULT OF THOSE
SECRECY PRECAUTIONS, "NOT SUFFICIENT DISCLOSURE OCCURRED SO AS TO PLACE
THE CLAIMED TRADE SECRETS IN THE PUBLIC DOMAIN"; AND THOSE FINDINGS
WERE SUSTAINED BY THE COURT OF APPEALS. 

THE DISTRICT COURT ISSUED A PERMANENT INJUNCTION AGAINST
RESPONDENTS, EX-EMPLOYEES, RESTRAINING THEM FROM USING THE PROCESSES
USED BY HARSHAW.  BY A PATENT WHICH WOULD REQUIRE FULL DISCLOSURE
HARSHAW COULD HAVE OBTAINED A 17-YEAR MONOPOLY AGAINST THE WORLD.  BY
THE DISTRICT COURT'S INJUNCTION, WHICH THE COURT APPROVES AND
REINSTATES, HARSHAW GETS A PERMANENT INJUNCTION RUNNING INTO PERPETUITY
AGAINST RESPONDENTS.  IN SEARS, AS IN THE PRESENT CASE, AN INJUNCTION
AGAINST THE UNFAIR COMPETITOR ISSUED.  WE SAID:  "TO ALLOW A STATE BY
USE IF ITS LAW OF UNFAIR COMPETITION TO PREVENT THE COPYING OF AN
ARTICLE WHICH REPRESENTS TOO SLIGHT AN ADVANCE TO BE PATENTED WOULD BE
TO PERMIT THE STATE TO BLOCK OFF FROM THE PUBLIC SOMETHING WHICH
FEDERAL LAW HAS SAID BELONGS TO THE PUBLIC.  THE RESULT WOULD BE THAT
WHILE FEDERAL LAW GRANTS ONLY 14 OR 17 YEARS' PROTECTION TO GENUINE
INVENTIONS, SEE 35 U.S.C. 154, 173, STATES COULD ALLOW PERPETUAL
PROTECTION TO ARTICLES TOO LACKING IN NOVELTY TO MERIT ANY PATENT AT
ALL UNDER FEDERAL CONSTITUTIONAL STANDARDS.  THIS WOULD BE TOO GREAT AN
ENCROACHMENT ON THE FEDERAL PATENT SYSTEM TO BE TOLERATED."  376 U.S.,
AT 231 - 232. 

THE CONFLICT WITH THE PATENT LAWS IS OBVIOUS.  THE DECISION OF
CONGRESS TO ADOPT A PATENT SYSTEM WAS BASED ON THE IDEA THAT THERE WILL
BE MUCH MORE INNOVATION IF DISCOVERIES ARE DISCLOSED AND PATENTED THAN
THERE WILL BE WHEN EVERYONE WORKS IN SECRET.  SOCIETY THUS FOSTERS A
FREE EXCHANGE OF TECHNOLOGICAL INFORMATION AT THE COST OF A LIMITED 17
YEAR MONOPLY.  /2/ 

A TRADE SECRET, /3/  UNLIKE A PATENT, HAS NO PROPERTY DIMENSION. 
THAT WAS THE VIEW OF THE COURT OF APPEALS, 478 F.2D 1074, 1081; AND ITS
DECISION IS SUPPORTED BY WHAT MR. JUSTICE HOLMES SAID IN DU PONT POWDER
CO. V. MASLAND, 244 U.S. 100, 102: 

"THE WORD PROPERTY AS APPLIED TO TRADE-MARKS AND TRADE SECRETS IS AN
UNANALYZED EXPRESSION OF CERTAIN SECONDARY CONSEQUENCES OF THE PRIMARY
FACT THAT THE LAW MAKES SOME RUDIMENTARY REQUIREMENTS OF GOOD FAITH. 
WHETHER THE PLAINTIFFS HAVE ANY VALUABLE SECRET OR NOT THE DEFENDENT
KNOWS THE FACTS, WHATEVER THEY ARE, THROUGH A SPECIAL CONFIDENCE THAT
HE ACCEPTED.  THE PROPERTY MAY BE DENIED BUT THE CONFIDENCE CANNOT BE.
THEREFORE THE STARTING POINT FOR THE PRESENT MATTER IS NOT PROPERTY OR
DUE PROCESS OF LAW, BUT THAT THE DEFENDENT STOOD IN CONFIDENTIAL
RELATIONS WITH THE PLAINTIFFS, OR ONE OF THEM.  THESE HAVE GIVEN PLACE
TO HOSTILITY, AND THE FIRST THING TO BE MADE SURE OF IS THAT THE
DEFENDENT SHALL NOT FRAUDULENTLY ABUSE THE TRUST REPOSED IN HIM.  IT IS
THE USUAL INCIDENT OF CONFIDENTIAL RELATIONS.  IF THERE IS ANY
DISADVANTAGE IN THE FACT THAT HE KNEW THE PLAINTIFFS' SECRETS HE MUST
TAKE THE BURDEN WITH THE GOOD."  /4/ 

A SUIT TO REDRESS THEFT OF A TRADE SECRET IS GROUNDED IN TORT
DAMAGES FOR BREACH OF A CONTRACT--A HISTORIC REMEDY, CATAPHOTE CORP. V.
HUDSON, 422 F.2D 1290.  DAMAGES FOR BREACH OF A CONFIDENTIAL RELATION
IS NOT PRE-EMPTED BY THIS PATENT LAW, BUT AN INJUNCTION AGAINST USE IS
PRE-EMPTED BECAUSE THE PATENT LAW STATES THE ONLY MONOPOLY OVER TRADE
SECRETS THAT IS ENFORCEABLE BY SPECIFIC PERFORMANCE; AND THAT MONOPOLY
EXACTS AS A PRICE FULL DISCLOSURE.  A TRADE SECRET CAN BE PROTECTED
ONLY BY BEING KEPT SECRET.  DAMAGES FOR BREACH OF A CONTRACT ARE ONE
THING; AN INJUNCTION BARRING DISCLOSURE DOES SERVICE FOR THE PROTECTION
ACCORDED VALID PATENTS AND IS THEREFORE PRE-EMPTED. 

FROM THE FINDINGS OF FACT OF THE LOWER COURTS, THE PROCESS INVOLVED
IN THIS LITIGATION WAS UNIQUE, SUCH A GREAT DISCOVERY AS TO MAKE ITS
PATENTABILITY A VIRTUAL CERTAINTY.  YET THE COURT'S OPINION REFLECTS A
VIGOROUS ACTIVIST ANTIPATENT PHILOSOPHY.  MY OBJECTION IS NOT BECAUSE
IT IS ACTIVIST.  THIS IS A PROBLEM THAT INVOLVES NO NEUTRAL PRINCIPLE. 
THE CONSTITUTION IN ART. I, 8, CL. 8, EXPRESSES THE ACTIVIST POLICY
WHICH CONGRESS HAS ENFORCED BY STATUTES.  IT IS THAT CONSTITUTIONAL
POLICY WHICH WE SHOULD ENFORCE, NOT OUR INDIVIDUAL NOTIONS OF THE
PUBLIC GOOD. 

I WOULD AFFIRM THE JUDGEMENT BELOW. 

/1/  HERE AS IN LEAR, INC. V. ADKINS, 395 U.S. 653, 674, WHICH HELD
THAT A LICENSEE OF A PATENT IS NOT PRECLUDED BY A CONTRACT FROM
CHALLENGING THE PATENT, FOR IF HE WERE, THAT WOULD DEFEAT THE POLICY OF
THE PATENT LAWS: "ENFORCING THIS CONTRACTUAL PROVISION WOULD UNDERMINE
THE STRONG FEDERAL POLICY FAVORING THE FULL AND FREE USE OF IDEAS IN
THE PUBLIC DOMAIN." 

/2/  "THE HOLDING (OF THE COURT OF APPEALS) IN KEWANEE SEEMS
CORRECT.  IF IT IS PERMISSIBLE FOR AN INVENTOR TO USE THE LAW OF UNFAIR
COMPETITION AS A SUBSTITUTE FOR PATENTING, CERTAIN CATEGORIES OF
INVENTIONS WOULD RECEIVE PRIVILEGED PROTECTION UNDER THE LAW.  THUS A
NEW LASER, TELEVISION SET, OR AIRPLANE COULD NOT BE PROTECTED BECAUSE
INVENTIONS WHICH BY THEIR NATURE CANNOT BE PUT INTO COMMERCIAL USE
WITHOUT DISCLOSURE, ARE NOT ELIGIBLE FOR TRADE SECRET PROTECTION AFTER
THEY ARE PUT ON THE MARKET.  THOSE THAT CAN BE MAINTAINED ARE
ELIGIBLE.  BUT AS THE BASIC ECONOMIC FUNCTION OF THE PATENT SYSTEM IS
TO ENCOURAGE THE MAKING AND COMMERCIALIZATION OF INVENTIONS, THERE
SEEMS TO BE NO JUSTIFICATION FOR PROVIDING INCENTIVES BEYOND THOSE
PROVIDED BY THE PATENT LAW TO DISCRIMINATE BETWEEN DIFFERENT CATEGORIES
OF INVENTIONS, I. E., THOSE THAT MAY INHERENTLY BE KEPT SECRET AND
THOSE THAT MAY NOT.  MOREOVER, STATE RULES WHICH WOULD GRANT SUCH
INCENTIVES SEEM TO CONFLICT WITH THE ECONOMIC QUID PRO QUO UNDERLYING
PATENT PROTECTION; I. E., A MONOPOLY LIMITED IN TIME, IN RETURN FOR
FULL DISCLOSURE OF THE INVENTION.  THUS FEDERAL LAW HAS STRUCK A
BALANCE BETWEEN INCENTIVES FOR INVENTORS AND THE PUBLIC'S RIGHT TO A
COMPETITIVE ECONOMY.  IN THIS SENSE, THE PATENT LAW IS AN INTEGRAL PART
OF FEDERAL COMPETITIVE POLICY."  ADELMAN, SECRECY AND PATENTING: SOME
PROPOSALS FOR RESOLVING THE CONFLICT, 1 APLA QUARTERLY JOURNAL 296, 298
- 299 (1973). 

/3/  TRADE SECRETS OFTEN ARE UNPATENTABLE.  IN THAT EVENT THERE IS
NO FEDERAL POLICY WHICH IS CONTRAVENED WHEN AN INJUNCTION TO BAR
DISCLOSURE OF A TRADE SECRET IS ISSUED.  MOREOVER, INSOFAR AS FOREIGN
PATENTS ARE INVOLVED OUR FEDERAL PATENT POLICY IS OBVIOUSLY
IRRELEVANT.  S. OPPENHEIM, UNFAIR TRADE PRACTICES 264 - 265 (2D ED.
1965).  AS RESPECTS FURTHER CONTRASTS BETWEEN PATENTS AND TRADE SECRETS
SEE MILGRIM, TRADE SECRET PROTECTION AND LICENSING, 4 PAT.  L. REV. 375
(1972). 

/4/  AS TO GOLDSTEIN V. CALIFORNIA, 412 U.S. 546, THE RULING OF MR.
JUSTICE BRADLEY CONCERNING THE DISTINCTION BETWEEN PATENTS AND
COPYRIGHT IS RELEVANT: 

"THE DIFFERENCE BETWEEN THE TWO THINGS, LETTER-PATENT AND COPYRIGHT,
MAY BE ILLUSTRATED BY REFERENCE TO THE SUBJECTS JUST ENUMERATED.  TAKE
THE CASE OF MEDICINES.  CERTAIN MIXTURES ARE FOUND TO BE OF GREAT VALUE
IN THE HEALING ART. IF THE DISCOVERER WRITES AND PUBLISHES A BOOK ON
THE SUBJECT (AS REGULAR PHYSICIANS GENERALLY DO), HE GAINS NO EXCLUSIVE
RIGHT TO MANUFACTURE AND SALE OF THE MEDICINE; HE GIVES THAT TO THE
PUBLIC.  IF HE DESIRES TO ACQUIRE SUCH EXCLUSIVE RIGHT, HE MUST OBTAIN
A PATENT FOR THE MIXTURE AS A NEW ART, MANUFACTURE, OR COMPOSITION OF
MATTER.  HE MAY COPYRIGHT HIS BOOK, IF HE PLEASES; BUT THAT ONLY
SECURES TO HIM THE EXCLUSIVE RIGHT OF PRINTING AND PUBLISHING HIS
BOOK.  SO OF ALL OTHER INVENTIONS OR DISCOVERIES."  BAKER V. SELDON,
101 U.S. 99, 102 - 103. 

ERWIN N. GRISWOLD ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE ROBERT J. HOERNER, BARRY L. SPRINGEL, EDWARD P. TROXELL,
ROBERT P. MOONEY, AND JAMES A. LUCAS. 

WILLIAM C. MCCOY, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS.* 

*BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL BORK AND EDMUND W. KITCH FOR THE UNITED STATES; BY DONALD W.
BANNER, THOMAS F. MCWILLIAMS, JOHN C. DORFMAN, AND CHESTERFIELD SMITH
FOR THE AMERICAN BAR ASSN.; BY AUSTIN F. CANFIELD, JR., MAURICE H.
KLITZMAN, FRANCIS C. BROWNE, DONALD R. DUNNER, AND JOHN T. ROBERTS FOR
THE BAR ASSOCIATION OF THE DISTRICT COLUMBIA; BY WALTER A. PORTER AND
BRUCE TITTEL FOR THE OHIO STATE BAR ASSN.; BY MILTON A. SMITH, MARCUS
B. FINNEGAN, DOUGLAS B. HENDERSON, AND KENNETH E. PAYNE FOR THE CHAMBER
OF COMMERCE OF THE UNITED STATES; BY JOHN T. KELTON AND GEORGE E. FROST
FOR THE AMERICAN PATENT LAW ASSN.; BY CHARLES W. BRADLEY, THOMAS T.
DOWLING, EDWARD HALLE, AND WILLARD R. SPROWLS FOR THE NEW YORK PATENT
LAW ASSN.; BY KARL W. FLOCKS AND PAUL L. GOMORY FOR THE ASSOCIATION FOR
THE ADVANCEMENT OF INVENTION & INNOVATION; BY TOM ARNOLD AND BILL
DURKEE FOR THE LICENSING EXECUTIVES SOCIETY; BY JEREMIAH D. LAMBERT AND
ROBERT J. DEGIACOMO FOR THE ELECTRONIC INDUSTRIES ASSN.; BY MARX LEVA,
LLOYD SYMINGTON, AND JOHN S. HOFF FOR THE MANUFACTURING CHEMISTS ASSN.;
BY HERMAN FOSTER AND EDWARD M. FARRELL FOR THE BUDD CO.; BY JAMES M.
CLABAULT, EDWARD G. FIORITO, AND EDWARD F. LANGS FOR BURROUGHS CORP.;
BY HAROLD C. HOHBACH AND DAVID J. BREZNER FOR OPTICAL COATING
LABORATORY, INC.; BY IRVING M TULLAR AND GROVER M. MYERS FOR R. J.
REYNOLDS INDUSTRIES, INC.; BY PATRICK J. SCHLESINGER FOR ROHR
INDUSTRIES, INC.; AND BY VAN C. WILKS FOR SOUTHWIRE CO. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY ERIC P.
SCHELLIN FOR NATIONAL PATENT COUNCIL, INC., ET AL., AND BY MARY HELEN
SEARS AND EDWARD S. IRONS FOR SCM CORP.
..END :




SNOW V. COMMISSIONER, 416 U.S. 500 


       SNOW ET UX. V. COMMISSIONER OF INTERNAL REVENUE

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 73 - 641.  ARGUED APRIL 16, 1974--DECIDED MAY 13, 1974,

           (482 F.2D 1029, REVERSED.) 


    PETITIONER EDWIN A. SNOW, WHO HAD ADVANCED PART OF THE CAPITAL

  IN A PARTNERSHIP FORMED IN 1966 TO DEVELOP A SPECIAL-PURPOSE

  INCINERATOR AND HAD BECOME A LIMITED PARTNER, WAS DISALLOWED A

  DEDUCTION UNDER 174(A)(1) OF THE INTERNAL REVENUE CODE OF 1954,

  ON HIS INDIVIDUAL INCOME TAX RETURN FOR THAT YEAR FOR HIS PRO

  RATA SHARE OF THE PARTNERSHIP'S OPERATING LOSS.  THOUGH THERE

  WERE NO SALES IN 1966, EXPECTATIONS WERE HIGH AND THE

  INVENTOR-PARTNER WAS GIVING ABOUT A THIRD OF HIS TIME TO THE

  PROJECT, AN OUTSIDE ENGINEERING FIRM DOING THE SHOPWORK.  THE TAX

  COURT AND THE COURT OF APPEALS BOTH UPHELD DISALLOWANCE OF THE

  DEDUCTION, WHICH 174(A)(1) PROVIDES FOR "EXPERIMENTAL

EXPENDITURES WHICH ARE PAID OR INCURRED BY (THE TAXPAYER) DURING

  THE TAXABLE YEAR IN CONNECTION WITH HIS TRADE OR BUSINESS AS

  EXPENSES WHICH ARE NOT CHARGEABLE TO CAPITAL ACCOUNT."  HELD: IT

  WAS ERROR TO DISALLOW H THE DEDUCTION, WHICH WAS "IN CONNECTION

  WITH" PETITIONER'S TRADE OR BUSINESS, AND THE DISALLOWANCE WAS

  CONTRARY TO THE BROAD LEGISLATIVE OBJECTIVE OF THE CONGRESS WHEN

  IT ENACTED 174 TO PROVIDE AN ECONOMIC INCENTIVE, ESPECIALLY FOR

  SMALL AND GROWING BUSINESSES, TO ENGAGE IN THE SEARCH FOR NEW

PRODUCTS AND NEW INVENTIONS.  PP. 502 - 504. 

     DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL

MEMBERS JOINED EXCEPT STEWART, J., WHO TOOK NO PART IN THE

CONSIDERATION OR DECISIONS OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

174(A)(1), ALLOWS A TAXPAYER TO TAKE AS A DEDUCTION "EXPERIMENTAL
EXPENDITURES WHICH ARE PAID OR INCURRED BY HIM DURING THE TAXABLE YEAR
IN CONNECTION WITH HIS TRADE OR BUSINESS AS EXPENSES WHICH ARE NOT
CHARGEABLE TO CAPITAL ACCOUNT."  PETITIONER EDWIN A. SNOW (HEREAFTER
PETITIONER) WAS DISALLOWED AS A DEDUCTION HIS DISTRIBUTIVE SHARE OF THE
NET OPERATING LOSS OF A PARTNERSHIP, BURNS INVESTMENT COMPANY, FOR THE
TAXABLE YEAR 1966.  THE UNITED STATES TAX COURT SUSTAINED THE
COMMISSIONER, 58 T. C. 585.  THE COURT OF APPEALS AFFIRMED, 482 F.2D
1029 (CA6 1973).  THE CASE IS HERE ON A WRIT OF CERTORARI BECAUSE OF AN
APPARENT CONFLICT BETWEEN THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
AND THE FOURTH CIRCUIT IN CLEVELAND V. COMMISSIONER, 297 F.2D 169
(1961). 

PETITIONER WAS A LIMITED PARTNER IN BURNS, HAVING CONTRIBUTED
$10,000 FOR A FOUR-PERCENT INTEREST IN BURNS.  THE GENERAL PARTNER WAS
ONE TROTT WHO HAD PREVIOUSLY FORMED TWO OTHER LIMITED PARTNERSHIPS, ONE
CALLED ECHO, TO DEVELOP A TELEPHONE ANSWERING DEVICE AND THE OTHER
COURIER, TO DEVELOP AN ELECTRONIC TAPE RECORDER.  PETITIONER HAD BECOME
A LIMITED PARTNER IN EACH OF THESE OTHER PARTNERSHIPS.  /1/ 

BURNS WAS FORMED TO DEVELOP "A SPECIAL PURPOSE INCINERATOR FOR THE
CONSUMER AND INDUSTRIAL MARKETS."  TROTT WAS THE INVENTOR AND HAS
CONCEIVED OF THIS IDEA IN 1964 AND BETWEEN THEN AND 1966 HAD MADE A
NUMBER OF PROTOTYPES.  HIS PATENT COUNSEL HAD TOLD HIM IN 1965 THAT
SEVERAL FEATURES OF THE BURNER WERE IN HIS VIEW PATENTABLE BUT IN 1966
ADVISED HIM THAT THE INCINERATOR AS A WHOLE HAD NOT BEEN SUFFICIENTLY
"REDUCED TO PRACTICE" IN ORDER TO DEVELOP IT INTO A MARKETABLE
PRODUCT.  AT THAT POINT TROTT FORMED BURNS, PETITIONER PUTTING UP PART
OF THE CAPITAL.  THEREAFTER VARIOUS MODELS OF THE BURNER WERE BUILT AND
TESTED. 

DURING 1966 BURNS REPORTED NO SALES OF THE INCINERATOR OR ANY OTHER
PRODUCT BUT EXPECTATIONS WERE HIGH; AND TROTT WAS GIVING ABOUT ONE
THIRD OF HIS TIME TO THE PROJECT, AN OUTSIDE ENGINEERING FIRM DOING THE
SHOPWORK.  /2/ 

TROTT OBTAINED A PATENT ON THE INCINERATOR IN 1970 AND IT IS
CURRENTLY BEING PRODUCED AND MARKETED UNDER THE NAME TRASH-AWAY.  /3/ 

"ORDINARY AND NECESSARY" BUSINESS EXPENSES UNDER 162(A) (THEN 23(A)(1)
OF THE INTERNAL REVENUE CODE OF 1939) ADUMBRATED BY MR. JUSTICE
FRANFURTER IN A CONCURRING OPINION IN DEPUTY V. DU PONT, 308 U.S. 488,
499 (1940), WHERE HE SAID THE SECTION IN QUESTION (OLD 23(A)) "INVOLVES
HOLDING ONE'S SELF OUT TO OTHERS AS ENGAGED IN THE SELLING OF GOODS OR
SERVICES."  THE WORDS "TRADE OR BUSINESS" APPEAR, HOWEVER, IN ABOUT 60
DIFFERENT SECTIONS OF THE 1954 ACT.  /4/  THOSE OTHER SECTIONS ARE NOT
HELPFUL HERE BECAUSE CONGRESS WROTE INTO 174(A)(1) "IN CONNECTION WITH"
AND 162(A) IS MORE NARROWLY WRITTEN THAN IS 174, ALLOWING "A
DEDUCTION" OF "ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED . . .
IN CARRYING ON ANY TRADE OR BUSINESS."  THAT AND OTHER SECTIONS ARE NOT
HELPFUL HERE. 

THE LEGISLATIVE HISTORY MAKES FAIRLY CLEAR THE REASONS.  ESTABLISHED
FIRMS WITH ONGOING BUSINESS HAD CONTINUOUS PROGRAMS OF RESEARCH QUITE
UNLIKE SMALL OR PIONEERING BUSINESS ENTERPRISES.  /5/  MR. REED OF NEW
YORK, CHAIRMAN OF THE HOUSE COMMITTEE ON WAYS AND MEANS, MADE THE POINT
EVEN MORE EXPLICIT WHEN HE ADDRESSED THE HOUSE ON THE BILL:  /6/ 

     "PRESENT LAW CONTAINS NO STATUTORY PROVISION DEALING EXPRESSLY

  WITH THE DEDUCTION OF THESE EXPENSES.  THE RESULT HAS BEEN

  CONFUSION AND UNCERTAINTY.  VERY OFTEN, UNDER PRESENT LAW SMALL

BUSINESSES WHICH ARE DEVELOPING NEW PRODUCTS AND DO NOT HAVE

  ESTABLISHED RESEARCH DEPARTMENTS ARE NOT ALLOWED TO DEDUCT THESE

  EXPENSES DESPITE THE FACT THAT THEIR LARGE AND WELL-ESTABLISHED

  COMPETITORS CAN OBTAIN THE DEDUCTION.  . . . THIS PROVISION WILL

  GREATLY STIMULATE THE SEARCH FOR NEW PRODUCTS AND NEW INVENTIONS

  UPON WHICH THE FUTURE ECONOMIC AND MILITARY STRENGTH OF OUR

  NATION DEPENDS.  IT WILL BE PARTICULARLY VALUABLE TO SMALL AND

  GROWING BUSINESSES."  (EMPHASIS ADDED.) 

CONGRESS MAY AT TIMES IN ITS WISDOM DISCRIMINATE TAXWISE BETWEEN
VARIOUS KINDS OF BUSINESS, BETWEEN OLD AND ONCOMING BUSINESS AND THE
LIKE.  BUT WE WOULD DEFEAT THE CONGRESSIONAL PURPOSE SOMEWHAT TO
EQUALIZE THE TAX BENEFITS OF THE ONGOING COMPANIES AND THOSE THAT ARE
UPCOMING AND ABOUT TO REACH THE MARKET BY PERPETUATING THE
DISCRIMINATION CREATED BELOW AND URGED UPON US HERE. 

WE READ 174 AS DID THE COURT OF APPEALS FOR THE FOURTH CIRCUIT IN
CLEVELAND "TO ENCOURAGE EXPENDITURE FOR RESEARCH AND EXPERIMENTATION." 
297 F.2D, AT 173.  THAT INCENTIVE IS EMBEDDED IN 174 BECAUSE OF "IN
CONNECTION WITH," MAKING IRRELEVANT WHETHER PETITIONERS WERE RICH OR
POOR. 

WE ARE INVITED TO EXPLORE THE TREATMENT OF "HOBBY-LOSSES"  UNDER
183.  BUT THAT IS FAR AFIELD OF THE PRESENT INQUIRY FOR IT IS CLEAR
THAT IN THIS CASE UNDER 174 THE PROFIT MOTIVE WAS THE SOLE DRIVE OF THE
VENTURE. 

              REVERSED. 

/1/ BOTH ECHO AND COURIER CLAIMED RESEARCH AND DEVELOPMENT EXPENSES
IN 1965 AND 1966; AND THEY WERE NOT CHALLENGED BY THE COMMISSIONER,
APPARENTLY BECAUSE THEIR PRODUCTS WERE IN A MORE ADVANCED STAGE OF
DEVELOPMENT AND WERE AVAILABLE FOR SALE OR LICENSING. 

/2/  TREAS. REG. 1.174 - 2(A)(2) PROVIDES: "THE PROVISIONS OF THIS
RESEARCH OR EXPERIMENTATION UNDERTAKEN DIRECTLY BY HIM BUT ALSO TO
EXPENDITURES PAID OR INCURRED FOR RESEARCH OR EXPERIMENTATION CARRIED
ON IN HIS BEHALF BY ANOTHER PERSON OR ORGAINZATION (SUCH AS . . . (AN)
ENGINEERING COMPANY, OR SIMILAR CONTRACTOR) . . . ." 

/3/  PRIOR TO 1970 BURNS WAS INCORPORATED AND IT PROCEDURES AND
MARKETS TRASH-AWAY, PETITIONER BEING ITS CHAIRMAN OF THE BOARD. 

/4/  SAUNDERS, "TRADE OR BUSINESS," ITS MEANING UNDER THE INTERNAL
REVENUE CODE, U. SO. CA. 12TH INST.  ON FED. TAX.  693 (1960). 

/5/  HEARINGS ON H.R. 8300 BEFORE THE SENATE COMMITTEE ON FINANCE,
83RD CONG., 2D SESS., PT. 1, P. 105. 

/6/  100 CONG. REC. 3425 (1954). 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

BURGESS L. DOAN ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

STUART A. SMITH ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL CRAMPTON,
BENNET N. HOLLANDER, AND HANE M. EDMISTEN. 

CHARLES H. PHILLIPS AND RONALD L. BLANC, PRO SE, FILED A BRIEF AS
AMICI CURIAE. 
..END :








UNITED STATES V. GIORDANO, 416 U.S. 505 


       UNITED STATES V. GIORDANO ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

  FOURTH CIRCUIT

        NO. 72 - 1057.  ARGUED JANUARY 8, 1974--DECIDED MAY 13,
1974; (469 F.2D 522, AFFIRMED.) 


    TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF

  1968 PROVIDES IN 18 U.S.C. 2516(1) THAT "THE ATTORNEY GENERAL, OR

  ANY ASSISTANT ATTORNEY GENERAL SPECIALLY DESIGNATED BY TEH

  ATTORNEY GENERAL, MAY AUTHORIZE AN APPLICATION TO A FEDERAL JUDGE

  . . . FOR . . . AN ORDER AUTHORIZING OR APPROVING THE

  INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS" BY FEDERAL

  INVESTIGATIVE AGENCIES SEEKING EVIDENCE OF CERTAIN DESIGNATED

  OFFENSES; AND FURTHER PROVIDES THAT THE CONTENTS ON INTERCEPTED

  COMMUNICATIONS, OR EVIDENCE DERIVED THEREFROM, MAY NOT BE

  RECEIVED IN EVIDENCE AT A TRIAL IF THE DISCLOSURE OF THE

  INFORMATION WOULD VIOLATE TITLE III, 18 U.S.C. 2515, AND MAY BE

  SUPPRESSED ON THE GROUND, INTER ALIA, THAT THE COMMUNICATION WAS

  "UNLAWFULLY INTERCEPTED," 18 U.S.C. 2518(10)(A)(I).  IN THIS CASE

  AN APPLICATION PURPORTEDLY AUTHORIZED BY A SPECIALLY DESIGNATED

  ASSISTANT ATTORNEY GENERAL FOR AN ORDER PERMITTING THE WIRETAP OF

  THE TELEPHONE OF RESPONDENT GIORDANO, A NARCOTICS OFFENSE

  SUSPECT, WAS SUBMITTED TO THE CHIEF JUDGE OF THE DISTRICT COURT,

  WHO THEN ISSUED AN INTERCEPTION ORDER, AND LATER AN EXTENSION

  ORDER BASED ON A SIMILAR APPLICATION BUT ALSO INCLUDING

  INFORMATION OBTAINED FROM THE PREVIOUSLY AUTHORIZED INTERCEPTION

  AND EXTENDING THE AUTHORITY TO CONVERSATIONS OF ADDITIONAL NAMED

  INDIVIDUALS CALLING TO OR FROM GIORDANO'S TELEPHONE.  THE

  INTERCEPTION WAS TERMINATED WHEN GIORDANO AND THE OTHER

  RESPONDENTS WERE ARRESTED AND CHARGED WITH NARCOTICS VIOLATIONS. 

  DURING SUPPRESSION HEARINGS, IT DEVELOPED THAT THE WIRETAP

  APPLICATIONS HAD NOT IN FACT BEEN AUTHORIZED BY A SPECIALLY

  DESIGNATED ASSISTANT ATTORNEY GENERAL, BUT THAT THE INITIAL

  APPLICATION WAS AUTHORIZED BY THE ATTORNEY GENERAL'S EXECUTIVE

  ASSISTANT AND THE EXTENSION APPLIACTION HAD BEEN APPROVED BY TEH

  ATTORNEY GENERAL HIMSELF.  THE DISTRICT COURT SUSTAINED THE

  MOTIONS TO SUPPRESS ON THE GROUND THAT THE JUSTICE DEPARTMENT

  OFFICER APPROVING EACH APPLICATION HAD BEEN MISIDENTIFIED IN THE

APPLICATIONS AND INTERCEPT ORDERS.  THE COURT OF APPEALS

 AFFIRMED, BUT ON THE GROUND THAT THE INITIAL AUTHORIZATION

  VIOLATED 2516(1), THEREBY REQUIRING SUPPRESSION OF THE WIRETAP

  AND DERIVATIVE EVIDENCE UNDER 2515(10) (A) (1), INTER ALIA. 

  HELD: 

     1.  CONGRESS DID NOT INTEND THE POWER TO AUTHORIZE WIRETAP

  APPLICATIONS TO BE EXERCISED BY ANY INDIVIDUALS OTHER THAN THE

  ATTORNEY GENERAL OR AN ASSISTANT ATTORNEY GENERAL SPECIALLY

  DESIGNATED BY HIM.  PP. 512 - 523. 

     (A) NOTWITHSTANDING 28 U.S.C. 510, WHICH AUTHORIZES THE

  ATTORNEY GENERAL TO DELEGATE ANY OF HIS FUNCTIONS TO ANY OTHER

  OFFICER, EMPLOYEE, OR AGENCY OF THE JUSTICE DEPARTMENT, 2516(1),

  FAIRLY READ, WAS INTENDED TO LIMIT THE POWER TO AUTHORIZE WIRETAP

  APPLICATIONS TO THE ATTORNEY GENERAL HIMSELF AND TO ANY ASSISTANT

  ATTORNEY GENERAL HE MIGHT DESIGNATE.  PP. 512 - 514. 

    (B) THE INTERPRETATION OF 2516(1) IS STRONGLY SUPPORTED BY THE

  PURPOSE OF THE ACT EFFECTIVELY TO PROHIBIT ALL INTERCEPTIONS OF

  ORAL AND WIRE COMMUNICATIONS, EXCEPT THOSE SPECIFICALLY PROVIDED

  FOR, AND BY ITS LEGISLATIVE HISTORY.  PP. 514 - 523. 

     2.  PRIMARY OR DERIVATIVE EVIDENCE SECURED BY WIRE

  INTERCEPTIONS PURSUANT TO A COURT ORDER ISSUED IN RESPONSE TO AN

  APPLICATION WHICH WAS, IN FACT, NOT AUTHORIZED BY THE ATTORNEY

  GENERAL OR A SPECIALLY DESIGNATED ASSISTANT ATTORNEY GENERAL MUST

  BE SUPPRESSED UNDER 2515 UPON A MOTION PROPERLY MADE UNDER

  2518(10)(A), AND HENCE THE EVIDENCE OBTAINED FROM THE

  INTERCEPTIONS PURSUANT TO THE INITIAL COURT ORDER WAS PROPERLY

  SUPPRESSED.  PP. 524 - 529. 

     (A) UNDER 2518(10)(A)(I) THE WORDS "UNLAWFULLY INTERCEPTED"

  ARE NOT LIMITED TO CONSTITUTIONAL VIOLATIONS, BUT THE STATUTE WAS

  INTENDED TO REQUIRE SUPPRESSION WHERE THERE IS A FAILURE TO

  SATISFY ANY OF THOSE STATUTORY REQUIREMENTS THAT DIRECTLY AND

  SUBSTANTIALLY IMPLEMENT THE CONGRESSIONAL INTENTION TO LIMIT THE

  USE OF INTERCEPT PROCEDURES TO THOSE SITUATIONS CLEARLY CALLING

  FOR THE EMPLOYMENT OF THIS EXTRAORDINARY INVESTIGATIVE DEVICE. 

  PP. 524 - 528. 

     (B) SINCE CONGRESS INTENDED TO CONDITION THE USE OF INTERCEPT

  PROCEDURES UPON THE JUDGMENT OF A SENIOR JUSTICE DEPARTMENT

  OFFICIAL THAT THE SITUATION IS ONE OF THOSE WARRANTING THEIR USE,

  THUS PRECLUDING RESORT TO WIRETAPPING IN VARIOUS SITUATIONS
WHERE

  INVESTIGATIVE PERSONNEL WOULD OTHERWISE SEEK INTERCEPT AUTHORITY

  FROM THE COURT AND THE COURT WOULD VERY LIKELY AUTHORIZE ITS USE,

  IT IS EVIDENT THAT THE PROVISION FOR PRE-APPLICATION APPROVAL WAS

  INTENDED TO PLAY A CENTRAL ROLE IN THE STATUTORY SCHEME AND THAT

  SUPPRESSION MUST FOLLOW WHEN IT IS SHOWN THAT THIS STATUTORY

  REQUIREMENT HAS BEEN IGNORED.  PP. 528 - 529. 

     3.  COMMUNICATIONS INTERCEPTED PURSUANT TO THE EXTENSION ORDER

  WERE INADMISSABLE, SINCE THEY WERE EVIDENCE DERIVED FROM THE

COMMUNICATIONS INVALIDLY INTERCETPTED PURSUANT TO THE INITIAL

  ORDER.  PP. 529 - 533. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN PARTS I, II,

  AND III OF WHICH ALL MEMBERS JOINED, AND IN PART IV OF WHICH

  DOUGLAS, BRENNAN, STEWART, AND MARSHALL, JJ., JOINED.  DOUGLAS,

J., FILED A CONCURRING OPINION, IN WHICH BRENNAN, STEWART, AND

  MARSHALL, JJ., JOINED, POST, P. 580.  POWELL, J., FILED AN

  OPINION CONCURRING IN PARTS I, II, AND III OF THE COURT'S OPINION

  AND DISSENTING FROM PART IV, IN WHICH BURGER, C. J., AND BLACKMUN

  AND REHNQUIST, JJ., JOINED, POST, P. 548. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968,
82 STAT. 211 - 225, 18 U.S.C. 2510 - 2520, PRESCRIBES THE PROCEDURE FOR
SECURING JUDICIAL AUTHORITY TO INTERCEPT WIRE COMMUNICATIONS IN THE
INVESTIGATION OF SPECIFIED SERIOUS OFFENSES.  THE COURT MUST HERE
DETERMINE WHETHER THE GOVERNMENT SUFFICIENTLY COMPLIED WITH THE
REQUIRED APPLICATION PROCEDURES IN THIS CASE AND WHETHER, IF NOT,
EVIDENCE OBTAINED AS A RESULT OF SUCH SURVEILLANCE, UNDER A COURT ORDER
BASED ON THE APPLICATIONS, IS ADMISSABLE AT THE CRIMINAL TRIAL OF THOSE
WHOSE CONVERSATIONS WERE OVERHEARD.  IN PARTICULAR, WE MUST DECIDE
WHETHER THE PROVISION OF 18 U.S.C. 2516(1) /1/  CONFERRING POWER ON THE
"ATTORNEY GENERAL, OR ANY ASSISTANT ATTORNEY GENERAL SPECIALLY
DESIGNATED BY THE ATTORNEY GENERAL" TO "AUTHORIZE AN APPLICATION TO A
FEDERAL JUDGE . . . FOR . . . AN ORDER AUTHORIZING OR APPROVING THE
INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS"  BY FEDERAL INVESTIGATIVE
AGENCIES SEEKING EVIDENCE OF CERTAIN DESIGNATED OFFENSES PERMITS THE
ATTORNEY GENERAL'S EXECUTIVE ASSISTANT TO VALIDLY AUTHORIZE A WIRETAP
APPLICATION TO BE MADE.  WE CONCLUDE THAT CONGRESS DID NOT INTEND THE
POWER TO AUTHORIZE WIRETAP APPLICATIONS TO BE EXERCISED BY ANY
INDIVIDUALS OTHER THAN THE ATTORNEY GENERAL OR AN ASSISTANT ATTORNEY
GENERAL SPECIALLY DESIGNATED BY HIM AND THAT PRIMARY OR DERIVATIVE
EVIDENCE SECURED BY WIRE INTERCEPTIONS PURSUANT TO A COURT ORDER ISSUED
IN RESPONSE TO AN APPLICATION WHICH WAS, IN FACT, NOT AUTHORIZED BY ONE
OF THE STATUTORILY DESIGNATED OFFICIALS MUST BE SUPPRESSED UNDER 18
U.S.C. 2515 UPON A MOTION PROPERLY MADE UNDER 18 U.S.C. 2518 (10)(A). 
ACCORDINGLY, WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

        I 

IN THE COURSE OF AN INITIAL INVESTIGATION OF SUSPECTED NARCOTICS
DEALINGS ON THE PART OF RESPONDENT GIORDANO, IT DEVELOPED THAT GIORDANO
HIMSELF SOLD NARCOTICS TO AN UNDERCOVER AGENT ON OCTOBER 5, 1970, AND
ALSO TOLD AN INFORMANT TO CALL A SPECIFIED NUMBER WHEN INTERESTED IN
TRANSACTING NARCOTICS BUSINESS.  BASED ON THIS AND OTHER INFORMATION,
FRANCIS BROCATO, AN ASSISTANT UNITED STATES ATTORNEY, ON OCTOBER 16,
1970, SUBMITTED AN APPLICATION TO THE CHIEF JUDGE OF THE DISTRICT OF
MARYLAND FOR AN ORDER PERMITTING INTERCEPTION OF THE COMMUNICATIONS OF
GIORDANO, AND OF OTHERS AS YET UNKNOWN, TO OR FROM GIORDANO'S
TELEPHONE.  THE APPLICATION RECITED THAT ASSISTANT ATTORNEY GENERAL
WILL WILSON HAD BEEN SPECIALLY DESIGNATED BY THE ATTORNEY GENERAL TO
AUTHORIZE THE APPLICATION.  ATTACHED TO THE APPLICATION WAS A LETTER
FROM WILL WILSON TO BROCATO WHICH STATED THAT WILSON HAD REVIEWED
BROCATO'S REQUEST FOR AUTHORIZATION AND HAD MADE THE NECESSARY PROBABLE
CAUSE DETERMINATIONS AND WHICH THEN PURPORTED TO AUTHORIZE BROCATO TO
PROCEED WITH THE APPLICATION TO THE COURT.  ALSO ATTACHED WERE VARIOUS
AFFIDAVITS OF LAW ENFORCEMENT OFFICERS STATING THE REASONS AND
JUSTIFICATION FOR THE PROPOSED INTERCEPTION.  UPON REVIEWING THE
APPLICATION, THE CHIEF JUDGE ISSUED AN ORDER ON THE SAME DAY
AUTHORIZING THE INTERCEPTION "PURSUANT TO APPLICATION AUTHORIZED BY THE
ASSISTANT ATTORNEY GENERAL . . . WILL WILSON, WHO HAS BEEN SPECIALLY
DESIGNATED IN THIS PROCEEDING BY THE ATTORNEY GENERAL . . . TO EXERCISE
THE POWERS CONFERRED ON HIM BY (18 U.S.C. 2516)."  ON NOVEMBER 6, THE
SAME JUDGE EXTENDED THE INTERCEPT AUTHORITY BASED ON AN APPLICAITON
SIMILAR IN FORM TO THE ORIGINAL, BUT ALSO INCLUDING INFORMATION
OBTAINED FROM THE INTERCEPTION ALREADY AUTHORIZED AND CARRIED OUT AND
EXTENDING THE AUTHORITY TO CONVERSATIONS OF ADDITIONAL NAMED
INDIVIDUALS CALLING FROM OR TO GIORDANO'S TELEPHONE.  THE INTERCEPTION
WAS TERMINATED ON NOVEMBER 18 WHEN GIORDANO AND THE OTHER REPSONDENTS
WERE ARRESTED AND CHARGED WITH VIOLATIONS OF THE NARCOTICS LAWS. 

SUPPRESSION HEARINGS FOLLOWED PRETRIAL NOTIFICAITON BY THE GOVERNMENT,
SEE 2518(9), THAT IT INTENDED TO USE IN EVIDENCE THE RESULTS OF TEH
COURT-AUTHORIZED INTERCEPTIONS OF COMMUNICATIONS ON GIORDANO'S
TELEPHONE.  IT DEVELOPED AT THE HEARINGS THAT THE APPLICATIONS FOR
INTERCEPTION AUTHORITY PRESENTED TO THE DISTRICT COURT HAD INACCURATELY
DESCRIBED THE OFFICIAL WHO HAD AUTHORIZED THE APPLICATIONS AND THAT
NEITHER THE INITIAL APPLICAITON FOR THE OCTOBER 16 ORDER NOR THE
APPLICAITON FOR THE NOVEMBER 6 EXTENSION ORDER HAD BEEN APPROVED AND
AUTHORIZED BY ASSISTANT ATTORNEY GENREAL WILL WILSON, AS THE
APPLICATIONS HAD INDICATED.  AN AFFIDAVIT OF THE EXECUTIVE ASSISTANT TO
THE ATTORNEY GENERAL DIVULGED THAT HE, THE EXECUTIVE ASSISTANT, HAD
REVIEWED THE REQUEST FOR AUTHORIZATION TO APPLY FOR THE INITIAL ORDER,
HAD CONCLUDED, FROM HIS "KNOWLEDGE OF THE ATTORNEY GENERAL'S ACTIONS ON
PREVIOUS CASES, THAT HE WOULD APPROVE THE REQUEST IF SUBMITTED TO HIM,"
AND, BECAUSE THE ATTORNEY GENERAL WAS THEN ON A TRIP AWAY FROM
WASHINGTON, D. C., AND PURSUANT TO AUTHORIZATION BY THE ATTORNEY
GENERAL FOR HIM TO DO SO IN SUCH CIRCUMSTANCES, HAD APPROVED THE
REQUEST AND CAUSE THE ATTORNEY GENERAL'S INITIALS TO BE PLACED ON A
MEMORANDUM TO WILSON INSTRUCTING HIM TO AUTHORIZE BROCATO TO PROCEED. 
THE AFFIDAVIT ALSO STATED THAT THE ATTORNEY GENERAL HIMSELF HAD
APPROVED THE NOVEMBER 6 REQUEST FOR EXTENSION AND HAD INITIALED THE
MEMORANDUM TO WILSON DESIGNATING HIM TO AUTHORIZE BROCATO TO MADE
APPLICAITON FOR AN EXTENSION ORDER.  IT WAS ALSO REVEALED THAT ALTHOUGH
THE APPLICATION RECITED THAT THEY HAD BEEN AUTHORIZED BY WILL WILSON,
HE HAD NOT HIMSELF REVIEWED BROCATO'S APPLICATIONS, AND THAT HIS ACTION
WAS AT BEST ONLY FORMAL AUTHORIZATION TO BROCATO.  FURTHERMORE, IT
BECAME APPARENT THAT WILSON DID NOT HIMSELF SIGN EITHER OF THE LETTERS
BEARING HIS NAME AND ACCOMPANYING THE APPLICATIONS TO THE DISTRICT
COURT.  INSTEAD, IT APPEARED THAT SOMEONE IN WILSON'S OFFICE HAD
AFFIXED HIS SIGNATURE AFTER THE SIGNING OF THE LETTERS HAD BEEN
AUTHORIZED BY A DEPUTY ASSISTANT ATTORNEY GENERAL IN THE CRIMINAL
DIVISION WHO HAD, IN TURN, ACTED AFTER THE APPROVAL OF THE REQUEST FOR
AUTHORIZATION HAD OCCURRED IN AND HAD BEEN RECEIVED FROM THE OFFICE OF
THE ATTORNEY GENERAL. 

THE DISTRICT COURT SUSTAINED THE MOTIONS TO SUPPRESS ON THE GROUND
THAT THE OFFICER IN THE JUSTICE DEPARTMENT APPROVING EACH APPLICATION
HAD BEEN MISIDENTIFIED IN THE APPLICATIONS AND INTERCEPT ORDERS, IN
VIOLATION OF 18 U.S.C. 2516(1)(A) AND (4)(D), UNITED STATES V.
FOCARILE, 340 F. SUPP. 1033, 1060 (MD. 1972).  ON THE GOVERNMENT'S
PRETRIAL APPEAL UNDER 18 U.S.C. 3731, THE COURT OF APPEALS AFFIRMED ON
THE DIFFERENT GROUND THAT THE AUTHORIZATION OF THE OCTOBER 16 WIRETAP
APPLICATION BY THE ATTORNEY GENERAL'S EXECUTIVE ASSISTANT VIOLATED
2516(1) OF THE STATUTE AND STRUCK AT "THE VERY HEART" OF TITLE III,
THEREBY REQUIRING SUPPRESSION OF THE WIRETAP AND DERIVATIVE EVIDENCE
UNDER 2516 AND 2518 (10) (A) (I) AND (II).  /2/ 469 F.2D 522, 531.  WE
GRANTED CERTIORARI TO RESOLVE THE CONFLICT WITH DECISIONS OF THE COURT
OF APPEALS FOR THE SECOND CIRCUIT  /3/  WITH RESPECT TO THE
ADMINISTRATION OF THE CIRCUMSCRIBED AUTHORITY CONGRESS HAS GRANTED IN
TITLE III FOR THE USE OF WIRETAPPING AND WIRETAP EVIDENCE BY LAW
ENFORCEMENT OFFICERS.  411 U.S. 905. 

II 

THE UNITED STATES CONTENDS THAT THE AUTHORIZATION OF INTERCEPT
APPLICATIONS BY THE ATTORNEY GENERAL'S EXECUTIVE ASSISTANT WAS NOT
INCONSISTENT WITH THE STATUTE AND THAT EVEN IF IT WERE, THERE BEING NO
CONSTITUTIONAL VIOLATION, THE WIRETAP AND DERIVATIVE EVIDENCE SHOULD
NOT HAVE BEEN ORDERED SUPPRESSED.  WE DISAGREE WITH BOTH CONTENTIONS. 
/4/ 

TURNING FIRST TO WHETHER THE STATUTE PERMITS THE AUTHORIZATION OF
WIRETAP APPLICATIONS BY THE ATTORNEY GENERAL'S EXECUTIVE ASSISTANT, WE
BEGIN WITH THE LANGUAGE OF 2516 (1), WHICH PROVIDES THAT "(THE ATTORNEY
GENERAL, OR ANY ASSISTANT ATTORNEY GENERAL SPECIALLY DESIGNATED BY THE
ATTORNEY GENERAL, MAY AUTHORIZE" AN APPLICAITON FOR INTERCEPT
AUTHORITY.  PLAINLY ENOUGH, THE EXECUTIVE ASSISTANT IS NEITHER THE
ATTORNEY GENERAL NOR A SPECIALLY DESIGNATED ASSISTANT ATTORNEY GENREAL;
BUT THE UNITED STATES ARGUES THAT 28 U.S.C. 509, /5/  DERIVING FROM THE
REORGANIZATION ACTS OF 1949 AND 1950, VESTS ALL FUNCTIONS OF THE
DEPARTMENT OF JUSTICE, WITH SOME EXCEPTIONS, IN THE ATTORNEY GENERAL,
AND THAT CONGRESS CHARACTERISTICALLY ASSIGNS NEWLY CREATED DUTIES TO
THE ATTORNEY GENERAL RATHER THAN TO THE DEPARTMENT OF JUSTICE, THUS
MAKING ESSENTIAL THE PROVISION FOR DELEGATION APPEARING IN 28 U.S.C.
510: 

    "THE ATTORNEY GENERAL MAY FROM TIME TO TIME MAKE SUCH

  PROVISIONS AS HE CONSIDERS APPROPRIATE AUTHORIZING THE

  PERFORMANCE BY ANY OTHER OFFICER, EMPLOYEE, OR AGENCY OF THE

  DEPARTMENT OF JUSTICE OF ANY FUNCTION OF THE ATTORNEY GENERAL." 

IT IS THEREFORE ARGUED THAT MERELY VESTING A DUTY IN THE ATTORNEY
GENERAL, AS IT IS SAID CONGRESS DID IN 2516(1[, EVINCES NO INTENTION
WHATSOEVER TO PRECLUDE DELEGATION TO OTHER OFFICERS IN THE DEPARTMENT
OF JUSTICE, INCLUDING THOSE ON THE ATTORNEY GENERAL'S OWN STAFF. 

AS A GENERAL PROPOSITION, THE ARGUMENT IS UNEXCEPTIONABLE.  BUT HERE
THE MATTER OF DELEGATION IS EXPRESSLY ADDRESSED BY 2516 AND THE POWER
OF THE ATTORNEY GENERAL IN THIS RESPECT IS SPECIFICALLY LIMITED TO
DELEGATING HIS AUTHORITY TO "ANY ASSISTANT ATTORNEY GENERAL SPECIALLY
DESIGNATED BY THE ATTORNEY GENERAL."  DESPITE 510, CONGRESS DOES NOT
ALWAYS CONTEMPLATE THAT THE DUTIES ASSIGNED TO THE ATTORNEY GENREAL MAY
BE FREELY DELEGATED.  UNDER THE CIVIL RIGHTS ACT OF 1968, FOR INSTANCE,
CERTAIN PROSECUTIONS ARE AUTHORIZED ONLY ON THE CERTIFICATION OF THE
ATTORNEY GENERAL OR THE DEPUTY ATTORNEY GENERAL, "WHICH FUNCTION OF
CERTIFICATION MAY NOT BE DELEGATED."  18 U.S.C. 245(A)(1).  EQUALLY
PRECISE LANGUAGE FORBIDDING DELEGATION WAS NOT EMPLOYED IN THE
LEGISLATION BEFORE US; BUT WE THINK 2516(1), FAIRLY READ, WAS INTENDED
TO LIMIT THE POWER TO AUTHORIZE WIRETAP APPLICAITONS TO THE ATTORNEY
GENERAL HE MIGHT DESIGNATE.  THIS INTERPRETATION OF THE STATUTE IS ALSO
STRONGLY SUPPORTED BY ITS PURPOSE AND LEGISLATIVE HISTORY. 

THE PURPOSE OF THE LEGISLATION, WHICH WAS PASSED IN 1968, WAS
EFFECTIVELY TO PROHIBIT, ON THE PAIN OF CRIMINAL AND CIVIL PENALTIES,
/6/ ALL INTERCEPTIONS OF ORAL AND WIRE COMMUNICATIONS, EXCEPT THOSE
SPECIFICALLY PROVIDED FOR IN THE ACT, MOST NOTABLY THOSE
INTERPRETATIONS PERMITTED TO LAW ENFORCEMENT OFFICERS WHEN AUTHORIZED
BY COURT ORDER IN CONNECTION WITH THE INVESTIGATION OF THE SERIOUS
CRIMES LISTED IN 2516.  JUDICIAL WIRETAP ORDERS MUST BE PRECEEDED BY
APPLCIATIONS CONTAINING PRESCRIBED INFORMATION, 2518(1).  THE JUDGE
MUST MAKE CERTAIN FINDINGS BEFORE AUTHORIZING INTERCEPTIONS, INCLUDING
THE EXISTENCE OF PROBABLE CAUSE, 2518(3).  THE ORDERS THEMSELVES MUST
PARTICULARIZE THE EXTENT AND NATURE OF THE INTERCEPTIONS THAT THEY
AUTHORIZE, 2518(4), AND THEY EXPIRE WITHIN A SPECIFIED TIME UNLESS
EXPRESSLY EXTENDED BY A JUDGE BASED ON FURHTER APPLICATION BY
ENFORCEMENT OFFICIALS, 2518(5).  JUDICIAL SUPERVISION OF THE PROGRESS
OF THE INTERCEPTION IS PROVIDED FOR, 2518(6), AS IS OFFICIAL CONTROL OF
THE CUSTODY OF ANY RECORDINGS OR TAPES PRODUCED BY THE INTERCEPTIONS
CARRIED OUT PURSUANT TO THE ORDER, 2518(8).  THE ACT ALSO CONTAINS
PROVISIONS SPECIFYING THE CIRCUMSTANCES AND PROCEDURES UNDER AND BY
WHICH AGGRIEVED PERSONS MAY SEEK AND OBTAIN ORDERS FOR THE SUPPRESSION
OF INTERCEPTED WIRE OR ORAL COMMUNICATIONS SOUGHT TO BE USED IN
EVIDENCE BY THE GOVERNMENT.  2518(10)(A). 

THE ACT IS NOT AS CLEAR IN SOME RESPECTS AS IT MIGHT BE, BUT IT IS
AT ONCE APPARENT THAT IT NOT ONLY LIMITS THE CRIMES FOR WHICH INTERCEPT
AUTHORITY MAY BE OBTAINED BUT ALSO IMPOSES IMPORTANT PRECONDITIONS TO
OBTAINING ANY INTERCEPT AUTHORITY AT ALL.  CONGRESS LEGISLATED IN
CONSIDERABLE DETAIL IN PROVIDING FOR APPLICAITONS AND ORDERS
AUTHORIZING WIRETAPPING AND EVINCED THE CLEAR INTENT TO MAKE DOUBLY
SURE THAT THE STATUTORY AUTHORITY BE USED WITH RESTRAINT AND ONLY WHERE
THE CIRCUMSTANCES WARRANT THE SURREPTITIOUS INTERCEPTION OF WIRE AND
ORAL COMMUNICATIONS.  THESE PROCEDURES WERE NOT TO BE ROUTINELY
EMPLOYED AS THE INITIAL STEP IN CRIMINAL INVESTIGATION.  RATHER, THE
APPLICANT MUST STATE AND THE COURT MUST FIND THAT NORMAL INVESTIGATIVE
PROCEDURES HAVE BEEN TRIED AND FAILED OR REASONABLY APPEAR TO BE
UNLIKELY TO SUCCEED IF TRIED OR TO BE TOO DANGEROUS.  2518(1)(C) AND
(3)(C).  THE ACT PLAINLY CALLS FOR THE PRIOR, INFORMED JUDGMENT OF
ENFORCEMENT OFFICERS DESIRING COURT APPROVAL FOR INTERCEPT AUTHORITY,
AND INVESTIGATIVE PERSONNEL MAY NOT THEMSELVES ASK A JUDGE FOR
AUTHORITY TO WIRETAP OR EAVESDROP.  THE MATURE JUDGMENT OF A
PARTICULAR, RESPONSIBLE DEPARTMENT OF JUSTICE OFFICIAL IS INTERPOSED AS
A CRITICAL PRECONDITION TO ANY JUDICIAL ORDER. 

THE LEGISLATIVE HISTORY OF THE ACT SUPPORTS THIS VIEW.  AS WE HAVE
INDICATED, THE ACT WAS PASSED IN 1968, BUT THE PROVISION OF 2516
REQUIRING APPROVAL OF APPLICATIONS BY THE ATTORNEY GENERAL OR A
DESIGNATED ASSISTANT ATTORNEY GENERAL DATES FROM 1961, WHEN A
PREDECESSOR BILL WAS BEING CONSIDERED IN THE 87TH CONGRESS.  SECTION
4(B) OF THAT BILL, S. 1495, WHICH WAS ALSO AIMED AT PROHIBITING ALL BUT
DESIGNATED OFFICIAL INTERCEPTION, INITIALLY PROVIDED THAT THE "ATTORNEY
GENERAL, OR ANY OFFICER OF THE DEPARTMENT OF JUSTICE OR ANY UNITED
STATES ATTORNEY SPECIALLY DESIGNATED BY THE ATTORNEY GENERAL, MAY
AUTHORIZE ANY INVESTIGATIVE OR LAW ENFORCEMENT OFFICER OF THE UNITED
STATES OR ANY FEDERAL AGENCY TO APPLY TO A JUDGE" FOR A WIRE
INTERCEPTION ORDER.  HEARINGS ON WIRETAPPING AND EAVESDROPPING
LEGISLATION BEFORE THE SUBCOMMITTEE ON THE JUDICIARY, 87TH CONG. 1ST
SES., 5 (1961).  UNDER THE PHRASEOLOGY, THE AUTHORITY WAS CENTERED IN
THE ATTORNEY GENERAL, BUT HE COULD EMPOWER ANY OFFICER OF THE
DEPARTMENT OF JUSTICE, INCLUDING UNITED STATES ATTORNEYS AND THE
EXECUTIVE ASSISTANT, TO AUTHORIZE APPLICATION FOR INTERCEPT ORDERS.  AT
HEARINGS ON THE BILL, THE ASSISTANT ATTORNEY GENERAL IN CHARGE OF THE
CRIMINAL DIVISION STATED THE VIEWS OF THE DEPARTMENT OF JUSTICE, AND
THE DEPARTMENT LATER OFFICIALLY PROPOSED, THAT THE AUTHORITY TO APPROVE
APPLICATIONS BE SUBSTANTIALLY NARROWED SO THAT THE ATTORNEY GENERAL
COULD DELEGATE HIS AUTHORITY ONLY TO AN ASSISTANT ATTORNEY GENERAL. 
THE TESTIMONY WAS: 

"THIS IS THE APPROACH OF S. 1495, WITH WHICH THE DEPARTMENT OF

  JUSTICE IS IN GENERAL AGREEMENT.  THE BILL MAKES WIRETAPPING A

  CRIME UNLESS SPECIFICALLY AUTHORIZED BY A FEDERAL JUDGE IN

  SITUATIONS INVOLVING SPECIFIED CRIMES.  AS I UNDERSTAND THE BILL,

  THE APPLICATION FOR A COURT ORDER COULD BE MADE ONLY BY THE

  AUTHORITY OF THE ATTORNEY GENERAL OR AN OFFICER OF THE DEPARTMENT

  OF JUSTICE OR U.S. ATTORNEY AUTHORIZED BY HIM.  I SUGGEST THAT

  THE BILL SHOULD CONFINE THE POWER TO AUTHORIZE AN APPLICATION FOR

  A COURT ORDER TO THE ATTORNEY GENERAL AND ANY ASSISTANT ATTORNEY

  GENERAL WHOM HE MAY DESIGNATE.  THIS WOULD GIVE GREATER ASSURANCE

  OF A RESPONSIBLE EXECUTIVE DETERMINATION OF THE NEED AND

  JUSTIFIABILITY OF EACH INTERCEPTION."  ID., AT 356. 

THE OFFICIAL PROPOSAL WAS THAT 4(B) BE CHANGED TO PROVIDE THAT THE
"ATTORNEY GENERAL, OR ANY ASSISTANT ATTORNEY GENERAL OF THE DEPARTMENT
OF JUSTICE SPECIALLY DESIGNATED BY THE ATTORNEY GENERAL MAY AUTHORIZE"
A WIRETAP APPLICATION.  ID., AT 372. 

S. 1495 WAS NOT ENACTED, BUT ITS PROVISION LIMITING THOSE WHO COULD
APPROVE APPLICATIONS FOR COURT ORDER SURVIVED AND WAS INCLUDED IN
ALMOST INDENTICAL FORM IN LATER LEGISLATIVE PROPOSALS, INCLUDING THE
BILL THAT BECAME TITLE III OF THE ACT NOW BEFORE US.  /7/  IN THE
COURSE OF TESTIMONY BEFORE A HOUSE COMMITTEE IN 1967, THE DRAFTSMAN OF
THE BILL CONTAINING THE BASIC OUTLINE OF TITLE III ENGAGED IN THE
FOLLOWING COLLOQUY: 

"THE CHAIRMAN.  . . . ABOUT THE ORIGIN OF THE APPLICATION, AS I

  UNDERSTAND IT, YOUR BILL PROVIDES IT MUST BE ORIGINATED BY THE

  ATTORNEY GENERAL OR AN ASSISTANT ATTORNEY GENERAL.  AM I CORRECT

  IN THAT REGARD? 

     "PROFESSOR BLAKELY.  YES, YOU ARE, MR. CHAIRMAN. 

     .  .  .  . . 

     "THE CHAIRMAN.  THE APPLICATION MUST BE MADE BY THE ATTORNEY

  GENERAL OR AN ASSISTANT ATTORNEY GENERAL. 

     "PROFESSOR BLAKELY.  IF I AM NOT MISTAKEN, THE PRESENT

  PROCEDURE IS BEFORE ANY WIRTAPPING OR ELECTRONIC EQUIPMENT IS

  USED NOW IT IS GENERALLY APPROVED AT THAT LEVEL ANYWAY, MR.

  CHAIRMAN, AND I WOULD NOT WANT THIS EQUIPMENT USED WITHOUT HIGH

  LEVEL RESPONSIBLE OFFICIALS PASSING ON IT.  IT MAY VERY WELL BE

  THAT IN COME NUMBER OF CASES THERE WILL NOT BE TIME TO GET THE

  ATTORNEY GENERAL TO APPROVE IT.  I THINK WE ARE GOING TO HAVE

  JUST TO LET THOSE CASES GO, AND THAT IF THIS EQUIPMENT IS TO BE

  USED IT OUGHT TO BE APPROVED BY THE HIGHEST LEVEL IN THE

  DEPARTMENT OF JUSTICE.  IF WE CANNOT MAKE CERTAIN CASES, THAT IS

GOING TO HAVE TO BE THE PRICE WE WILL HAVE TO PAY."  HEARINGS ON

  ANTI-CRIME PROGRAM BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE

  COMMITTEE ON THE JUDICIARY, 90TH CONG. 1ST SESS., 1379 (1967). 

  /8/

AS IT TURNED OUT, THE HOUSE JUDICIARY COMMITTEE DID NOT REPORT OUT A
WIRETAP BILL, BUT THE HOUSE DID PASS H. R. 5037, ENTITLED THE "LAW
ENFORCEMENT AND CRIMINAL JUSTICE ASSISTANCE ACT OF 1967," 113 CONG.
REC. 21861 (AUG. 8, 1967).  THE SENATE AMENDED THAT BILL BY ADDING TO
IT TITLE III, WHICH IN TURN ESSENTIALLY REFLECTED THE PROVISIONS OF S.
917, WHICH HAD BEEN FAVORABLY REPORTED BY THE SENATE JUDICIARY
COMMITTEE AND WHICH CONTAINED THE COMMITTEE'S OWN PROPOSALS WITH
RESPECT TO THE INTERCEPTION OF ORAL AND WIRE COMMUNICATIONS.  THE
REPORT ON THE BILL STATED: 

     "SECTION 2516 OF THE NEW CHAPTER AUTHORIZES THE INTERCEPTION
OF

  PARTICULAR WIRE OR ORAL COMMUNICATION UNDER COURT ORDER PURSUANT

  TO THE AUTHORIZATION OF THE APPROPRIATE FEDERAL, STATE, OR LOCAL

  PROSECUTING OFFICER. 

     "PARAGRAPH (1) . . . CENTRALIZES IN A PUBLICLY RESPONSIBLE

  OFFICIAL SUBJECT TO THE POLITICAL PROCESS THE FORMULATION OF LAW

  ENFORCEMENT POLICY ON THE USE OF ELECTRONIC SURVEILLANCE

  TECHNIQUES.  CENTRALIZATION WILL AVOID THE POSSIBILTY THAT

  DIVERGENT PRACTICES MIGHT DEVELOP.  SHOULD ABUSES OCCUR, THE

  LINES OF RESPONSIBLITY LEAD TO AN INDENTIFIABLE PERSON.  THIS

  PROVISION IN ITSELF SHOULD GO A LONG WAY TOWARD GUARANTEEING THAT

 NO ABUSES WILL HAPPEN."  S. REP. NO. 1097, 90TH CONG., 2D SESS.,

  96 - 97 (1968). 

THIS REPORT IS PARTICULARLY SIGNIFICANT IN THAT IT NOT ONLY RECOGNIZES
THAT THE AUTHORITY TO APPLY FOR COURT ORDER IS TO BE NARROWLY CONFINED
BUT ALSO DECLARES THAT IT IS TO BE LIMITED TO THOSE RESPONSIVE
POLITICAL PROCESS, A CATEGORY TO WHICH THE EXECUTIVE ASSISTANT TO THE
ATTORNEY GENERAL OBVIOUSLY DOES NOT BELONG.  /9/ 

THE SENATE PASSED H. R. 5037, WITH THE AMENDMENTS TRACKING THE
PROVISIONS OF S. 917, ON MAY 23, 1968, AS THE OMNIBUS CRIME CONTROL AND
SAFE STREETS ACT OF 1968, 114 CONG. REC. 14798 AND 14889.  DURING THE
PROCEEDINGS LEADING TO THE PASSAGE OF THE BILL, EMPHASIS WAS AGAIN
PLACE ON 2516.  THAT THE ATTORNEY GENERAL HAD THE EXCLUSIVE AUTHROITY
TO APPROVE OR PROVIDE FOR THE APPROVAL OF WIRETAP APPLICATIONS WAS
REITERATED, AND IT WAS MADE CLEAR THAT AS THE BILL WAS DRAFTED NO
UNITED STATES ATTORNEY WOULD HAVE OR COULD BE GIVEN THE AUTHORITY TO
APPLY FOR AN INTERCEPT ORDER WITHOUT THE ADVANCE APPROVAL OF A SENIOR
IN THE DEPARTMENT.  /1/  THERE WAS NO CONGRESSIONAL ATTEMPT, HOWEVER,
TO EXTEND THAT AUTHORITY BEYOND THE ATTORNEY GENERAL OR HIS ASSISTANT
ATTORNEY GENERAL DESIGNATE. 

THE GOVERNMENT INSISTS THAT BECAUSE 2516(2) PROVIDES FOR A WIDER
DISPERSAL OF AUTHORITY AMONG STATE OFFICERS TO APPROVE WIRETAP
APPLICATIONS AND LEAVES THE MATTER OF DELEGATION UP TO STATE LAW, /11/
IT IS INAPPROPRIATE TO CONFINE THE AUTHORITY SO NARROWLY ON THE FEDERAL
LEVEL.  BUT IT IS APPARENT THAT CONGRESS DESIRED TO CENTRALIZE AND
LIMIT THIS AUTHORITY WHERE IT WAS FEASIBLE TO DO SO, A DESIRE EASILY
IMPLEMENTED IN THE FEDERAL ESTABLISHMENT BY CONFINING THE AUTHORITY TO
APPROVE WIRETAP APPLICATIONS TO THE ATTORNEY GENERAL OR A DESIGNATED
ASSISTANT ATTORNEY GENERAL.  TO US, IT APPEARS WHOLLY AT ODDS WITH THE
SCHEME AND HISTORY OF THE ACT TO CONSTRUE 2516(1) TO PERMIT THE
ATTORNEY GENERAL TO DELEGATE HIS AUTHORITY AT WILL, WHETHER IT BE TO
HIS EXECUTIVE ASSISTANT OR TO ANY OFFICER IN THE DEPARTMENT OTHER THAN
AN ASSISTANT ATTORNEY GENERAL.  /12/

 III 

WE ALSO REJECT THE GOVERNMENT'S CONTENTION THAT EVEN IF THE APPROVAL
BY THE ATTORNEY GENERAL'S EXECUTIVE ASSISTANT OF THE OCTOBER 16
APPLICATION DID NOT COMPLY WITH THE STATUTORY REQUIREMENTS, THE
EVIDENCE OBTAINED FROM THE INTERCEPTIONS SHOULD NOT HAVE BEEN
SUPPRESSED.  THE ISSUE DOES NOT TURN ON THE JUDICIALLY FASHIONED
EXCLUSIONARY RULE AIMED AT DETERRING VIOLATIONS OF FOURTH AMENDMENT
RIGHTS, BUT UPON THE PROVISIONS OF TITLE III; AND, IN OUR VIEW, THE
COURT OF APPEALS CORRECTLY SUPPRESSED THE CHALLENGED WIRETAP EVIDENCE. 

ORAL COMMUNICATION, AND NO EVIDENCE DERIVED THEREFROM, MAY BE RECEIVE
AT CERTAIN PROCEEDINGS, INCLUDING TRIALS, "IF THE DISCLOSURE OF THAT
INFORMATION WOULD BE IN VIOLATION OF THIS CHAPTER."  WHAT DISCLOSURES
ARE FORBIDDEN, AND ARE SUBJECT TO MOTIONS TO SUPPRESS, IS IN TURN
GOVERNED BY 2518(10)(A), WHICH PROVIDES FOR SUPPRESSION OF EVIDENCE ON
THE FOLLOWING GROUNDS: 

     "(I) THE COMMUNICATION WAS UNLAWFULLY INTERCEPTED; 

     "(II) THE ORDER OF AUTHORIZATION OR APPROVAL UNDER WHICH IT
WAS

  INTERCEPTED IS INSUFFICIENT ON ITS FACE; OR 

     "(III) THE INTERCEPTION WAS NOT MADE IN CONFORMITY WITH THE

  ORDER OF AUTHORIZATION OR APPROVAL."  /13/ 

THE COURT OF APPEALS HELD THAT THE COMMUNICATIONS THE GOVERNMENT
DESIRED TO OFFER IN EVIDENCE HAD BEEN "UNLAWFULLY INTERCEPTED" WITHIN
THE MEANING OF PARAGRAPH (I), BECAUSE THE OCTOBER APPLICATION HAD BEEN
APPROVED BY THE EXECUTIVE ASSISTANT TO THE ATTORNEY GENERAL RATHER THAN
BY THE ATTORNEY GENERAL HIMSELF OR A DESIGNATED ASSISTANT ATTORNEY
GENERAL.  /14/  WE HAVE ALREADY DETERMINED THAT DELEGATION TO THE
EXECUTIVE ASSISTANT WAS INDEED CONTRARY TO THE STATUTE; BUT THE
GOVERNMENT CONTENDS THAT APPROVAL BY THE WRONG OFFICIAL IS A STATUTORY
VIOLATION ONLY AND THAT PARAGRAPH (I) MUST BE CONSTRUED TO REACH
CONSTITUTIONAL, BUT NOT STATUTORY, VIOLATIONS.  /15/  THE ARGUMENT IS A
STRAIGHTFORWARD ONE BASED ON THE STRUCTURE OF 2518(10)(A).  ON THE ONE
HAND, THE UNLAWFUL INTERCEPTIONS REFERRED TO IN PARAGRAPH (I) MUST
INCLUDE SOME CONSTITUTIONAL VIOLATIONS.  SUPPRESSION FOR LACK OF
PROBABLE CAUSE, FOR EXAMPLE, IS NOT PROVIDED FOR IN SO MANY WORDS AND
MUST FALL WITHIN PARAGRAPH (I) UNLESS, AS IS MOST UNLIKELY, THE
STATUTORY SUPPRESSION PROCEDURES WERE NOT INTENDED TO REACH
CONSTITUTIONAL VIOLATIONS AT ALL.  ON THE OTHER HAND PARAGRAPHS (II)
AND (III) PLAINLY REACH SOME PURELY STATUTORY DEFAULTS WITHOUT
CONSTITUTIOANL OVERTONES, AND THESE OMISSIONS CANNOT BE DEEMED UNLAWFUL
INTERCEPTIONS UNDER PARAGRAPH (I), ELSE THERE WOULD HAVE BEEN NO
NECESSITY FOR PARAGRAPHS (II) AND (III)--OR TO PUT THE MATTER ANOTHER
WAY, IF UNLAWFUL INTERCEPTIONS UNDER PARAGRAPH (I) INCLUDE PURELY
STATUTORY ISSUES, PARAGRAPHS (II) AND (III) ARE DRAINED OF ALL MEANING
AND ARE SURPLUSAGE.  THE CONSLUSION OF THE ARGUMENT IS THAT IF
NONCONSTITUTIONAL OMISSIONS REACHED BY PARAGRAPH (I), THEN THERE IS NO
BASIS FOR HOLDING THAT "UNLAWFUL INTERCEPTIONS"  INCLUDE ANY SUCH
STATUTORY MATTERS; THE ONLY PURELY STATUTORY TRANSGRESSIONS WARRANTING
SUPPRESSION ARE THOSE FALLING WITHIN PARAGRAPHS (II) AND (III). 

THE POSITION GAINS SOME SUPPORT FROM THE FACT THAT PREDECESSOR BILLS
SPECIFIED A FOURTH GROUND FOR SUPPRESSION--THE LACK OF PROBABLE CAUSE-
WHICH WAS OMITTED IN SUBSEQUENT BILLS, APPARENTLY ON THE GROUND THAT IT
WAS NOT NEEDED BECAUSE OFFICAL INTERCEPTIONS WITHOUT PROBABLE CAUSE
WOULD BE UNLAWFUL WITHIN THE MEANING OF PARAGRAPH (I).  /16/  ARGUABLY,
THE INFERENCE IS THAT SINCE PARAGRAPHS (II) AND (III) WERE RETAINED,
THEY MUST HAVE BEEN CONSIDERED "NECESSARY," THAT IS, NOT COVERED BY
PARAGRAPH (I). 

THE ARGUMENT OF THE UNITED STATES HAS SUBSTANCE, AND IT DOES APPEAR
THAT PARAGRAPHS (II) AND (III) MUST BE DEEMED TO PROVIDE SUPPRESSION
FOR FAILURE TO OBSERVE SOME STATUTORY REQUIREMENTS THAT WOULD NOT
RENDER INTERCEPTIONS UNLAWFUL UNDER PARAGRAPH (I).  BUT IT DOES NOT
NECESSARILY FOLLOW, AND WE CANNOT BELIEVE, THAT NO STATUTORY
INFRINGEMENTS WHATSOEVER ARE ALSO UNLAWFUL INTERCEPTIONS WITHIN THE
MEANING OF PARAGRAPH (I).  THE WORDS "UNLAWFULLY INTERCEPTED" ARE
THEMSELVES NOT LIMITED TO CONSTITUTIONAL VIOLATIONS, AND WE THINK
CONGRESS INTENDED TO REQUIRE SUPPRESSION WHERE THERE IS FAILURE TO
SATISFY ANY OF THOSE STATUTORY REQUIREMENTS THAT DIRECTLY AND
SUBSTANTIALLY IMPLEMENT THE CONGRESSIONAL INTENTION TO LIMIT THE USE OF
INTERCEPT PROCEDURES TO THOSE SITUATIONS CLEARLY CALLING FOR THE
EMPLOYMENT OF THIS EXTRAORDINARY INVESTIGATIVE DEVICE.  WE HAVE ALREADY
DETERMINED THAT CONGRESS INTENDED NOT ONLY TO LIMIT RESORT TO
WIRETAPPING TO CERTAIN CRIMES AND SITUATIONS WHERE PROBABLE CAUSE IS
PRESENT BUT ALSO TO CONDITION THE USE OF INTERCEPT PROCEDURES UPON THE
JUDGMENT OF A SENIOR OFFICIAL IN THE DEPARTMENT OF JUSTICE THAT THE
SITUATION IS ONE OF THOSE WARRANTING THEIR USE.  IT IS REASONABLE TO
BELIEVE THAT SUCH A PRECONSITION WOULD INEVITABLY FORECLOSE RESORT TO
WIRETAPPING IN VARIOUS SITUATIONS WEHRE INVESTIGATIVE PERSONNEL WOULD
OTHERWISE SEEK INTERCEPT AUTHORITY FROM THE COURT AND THE COURT WOULD
VERY LIKELY AUTHORIZE ITS USE.  WE ARE CONFIDENT THAT THE PROVISION FOR
PRE-APPLICATION APPROVAL WAS INTENDED TO PLAY A CENTRAL ROLE IN THE
STATUTORY SCHEME AND THAT SUPPRESSION MUST FOLLOW WHEN IT IS SHOWN THAT
THIS STATUTORY REQUIREMENT HAS BEEN IGNORED. 

THE PRINCIPAL PIECE OF LEGISLATIVE HISTORY RELATIVE TO THIS QUESTION
IS S. REP. NO. 1097, 90TH CONG., 2D SESS. (1968).  THE GOVERNMENT
EMPHASIZES THAT THE REPORT EXPRESSLY STATES THAT 2518(10)(A) "LARGELY
REFLECTS EXISTING LAW" AND THAT THERE WAS NO INTENTION TO "PRESS THE
SCOPE OF THE SUPPRESSION ROLE BEYOND PRESENT SEARCH AND SEIZURE LAW." 
ID., AT 96.  BUT THE REPORT ALSO STATES THAT THE SECTION PROVIDES FOR
SUPPRESSION OF EVIDENCE DIRECTLY OR INDIRECTLY OBTAINED "IN VIOLATION
OF THE CHAPTER" AND THAT THE PROVISION "SHOULD SERVE TO GUARANTEE THAT
THE STANDARDS OF THE NEW CHAPTER WILL SHARPLY CURTAIL THE UNLAWFUL
INTERCEPTION OF WIRE AND ORAL COMMUNICATIONS."  /17/  MOREOVER, IT
WOULD NOT EXTEND EXISTING SEARCH-AND-SEIZURE LAW FOR CONGRESS TO
PROVIDE FOR THE SUPPRESSION OF EVIDENCE OBTAINED IN VIOLATION OF
EXPLICIT STATUTORY PROHIBITIONS.  NARDONE V. UNITED STATES, 302 U.S.
379 (1937); NARDONE V. UNITED STATES, 308 U.S. 338 (1939).  /18/

        IV 

EVEN THOUGH SUPPRESSION OF THE WIRE COMMUNICATIONS INTERCEPTED UNDER
THE OCTOBER 16, 1970, ORDER IS REQUIRED, THE GOVERNMENT NEVERTHELESS
CONTENDS THAT COMMUNICATIONS INTERCEPTED UNDER THE NOVEMBER 6 EXTENSION
ORDER ARE ADMISSIBLE BECAUSE THEY ARE NOT "EVIDENCE DERIVED" FROM THE
CONTENTS OF COMMUNICATIONS INTERCEPTED UNDER THE OCTOBER 16 ORDER
WITHIN THE MEANING OF 2515 AND 2518(10)(A).  THIS POSITION IS
UNTENABLE. 

UNDER 2518, THE EXTENSION ORDERS DO NOT STAND ON THE SAME FOOTING AS
ORIGINAL AUTHORIZATIONS BUT ARE PROVIDED FOR SEPARATELY.  "EXTENSIONS
OF AN ORDER MAY BE GRANTED, BUT ONLY UPON APPLICATION FOR AN EXTENSION
MADE IN ACCORDANCE WITH SUBSECTION (1) OF THIS SECTION AND THE COURT
MAKING THE FINDINGS REQUIRED BY SUBSECTION (3) OF THIS SECTION." 
2518(5).  UNDER SUBSECTION (1)(E), APPLICATIONS FOR EXTENSIONS MUST
REVEAL PREVIOUS APPLICATIONS AND ORDERS, AND UNDER (1)(F) MUST CONTAIN
" A STATEMENT SETTING FORTH THE RESULTS THUS FAR OBTAINED FROM THE
INTERCEPTION, OR A REASONABLE EXPLANATION OF THE FAILURE TO OBTAIN SUCH
RESULTS."  BASED ON THE APPLICATION, THE COURT IS REQUIRED TO MAKE THE
SAME FINDINGS THAT ARE REQUIRED IN CONNECTION WITH THE ORIGINAL ORDER;
THAT IS, IT MUST BE FOUND NOT ONLY THAT THERE IS PROBABLE CAUSE IN THE
TRADITIONAL SENSE AND THAT NORMAL INVESTIGATIVE PROCEDURES ARE UNLIKELY
TO SUCCEED BUT ALSO THAT THERE IS PROBABLE CAUSE FOR BELIEVING THAT
PARTICULAR COMMUNICATIONS CONCERNING THE OFFENSE WILL BE OBTAINED
THROUGH THE INTERCEPTION AND FOR BELIEVING THAT THE FACILITIES OR PLACE
FROM WHICH THE WIRE OR ORAL COMMUNICATIONS ARE TO BE INTERCEPTED ARE
USED OR WILL BE USED IN CONNECTION WITH THE COMMISSION OF SUCH OFFENSE
OR ARE UNDER LEASE TO THE SUSPECT OR COMMONLY USED BY HIM.  2518(3). 

IN ITS NOVEMBER 6 APPLICATION, THE GOVERNMENT SOUGHT AUTHORITY TO
INTERCEPT THE CONVERSATIONS OF NOT ONLY GIORDANO, WHO ALONE WAS
EXPRESSLY NAMED IN THE INITIAL APPLICATION AND ORDER, BUT ON NINE OTHER
NAMED PERSONS WHO WERE ALLEGED TO BE INVOLVED WITH GIORDANO IN
NARCOTICS VIOLATIONS.  BASED ON THE ATTACHED AFFIDAVIT, IT WAS ALLEGED
THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT COMMUNICATIONS CONCERNING
THE OFFENSE WOULD BE INTERCEPTED, PARTICULARLY THOSE BETWEEN GIORDANO
AND THE OTHER NAMED INDIVIDUALS, AS WELL AS THOSE WITH OTHERS AS YET
UNNAMED, AND THAT THE TELEPHONE LISTED IN THE NAME OF GIORDANO AND
WHOSE MONITORING WAS SOUGHT TO BE CONTINUED "HAS BEEN USED, AND IS
BEING USED AND WILL BE SUED, IN CONNECTION WITH THE COMMISSION OF THE
OFFENSES DESCRIBED."  APP. 62. 

IN THE AFFIDAVIT SUPPORTING THE APPLICATION, THE UNITED STATES SET
OUT THE PREVIOUS APPLICATIONS AND ORDERS, INCORPORATED BY REFERENCE AND
REASSERTED THE "FACTS, DETAILS AND CONCLUSIONS CONTAINED IN (THE)
AFFIDAVITS" SUPPORTING THE PRIOR WIRETAP APPLICATION, AND SET DOWN IN
DETAIL THE RELEVANT COMMUNICATIONS OVERHEARD UNDER THE EXISTING ORDER,
AS WELL AS THE PHYSICAL MOVEMENTS OF GIORDANO OBSERVED AS THE RESULT OF
AN AROUND-THE-CLOCK SURVEILLANCE THAT HAD BEEN CONDUCTED BY THE
AUTHORITIES.  APP. 65 - 81.  THE GOVERNMENT CONCLUDED "(AFTER ANALYZING
THE INTERCEPTED CONVERSATIONS TO AND FROM (GIORDANO'S TELEPHONE) AND
THE RESULTS OF BNDD SURVEILLANCE" THAT NINE LISTED INDIVIDUALS, SOME
IDENTIFIED ONLY BY ALIASES, WERE ASSOCIATED WITH GIORDANO AS SUPPLIERS
OR BUYERS IN ILLEGAL NARCOTICS TRAFFICKING AND THAT CERTAIN OTHER
PERSONS WERE PERHAPS CONNECTED WITH THE OPERATION IN AN AS YET
UNDISCLOSED FASHION.  ID., AT 79-80.  IT WAS ALSO SAID THAT THE FULL
SCOPE OF GIORDANO'S ORGANIZATION WAS EXTREMELY GUARDED IN HIS TELEPHONE
CONVERSATIONS, "ANY SPECIFIC NARCOTICS CONVERSATIONS HE MAKES ARE FROM
PAY PHONES" AND "(CONVENTIONAL SURVEILLANCE WOULD BE COMPLETELY
INEFFECTIVE EXCEPT AS AN ADJUNCT TO ELECTRONIC INTERCEPTION."  ID., AT
81.  THE UNITED STATES ACCORDINGLY REQUESTED AN EXTENSION OF THE
INTERCEPTION ORDER FOR NO LONGER THAN A 15-DAY PERIOD. 

IT IS APPARENT FROM THE FOREGOING THAT THE COMMUNICATIONS
INTERCEPTED PURSUANT TO THE EXTENSION ORDER WERE EVIDENCE FROM THE
COMMUNICATIONS INVALIDLY INTERCEPTED PURSUANT TO THE INITIAL ORDER.  IN
THE FIRST PLACE, THE APPLICATION SOUGHT AND THE ORDER GRANTED AUTHORITY
TO INTERCEPT THE COMMUNICATIONS OF VARIOUS NAMED INDIVIDUALS NOT
MENTIONED IN THE INITIAL ORDER.  IT IS PLAIN FROM THE AFFIDAVIT
SUBMITTED THAT INFORMATION ABOUT MOST OF THESE PERSONS WAS OBTAINED
THROUGH THE INITIAL ILLEGAL INTERCEPTIONS.  IT IS EQUALLY PLAIN THAT
THE TELEPHONE MONITORING AND ACCOMPANYING SURVEILLANCE WERE COORDINATED
OPERATIONS, NECESSARILY INTERTWINED.  AS THE GOVERNMENT ASSERTED, THE
SURVEILLANCE AND CONVENTIONAL INVESTIGATIVE TECHNIQUES "WOULD BE
COMPLETELY INEFFECTIVE EXCEPT AS AN ADJUNCT TO ELECTRONIC
INTERCEPTION."  THAT THE EXTENSION ORDER AN THE INTERCEPTIONS UNDER IT
WERE NOT IN FACT THE PRODUCT OF THE EARLIER ELECTRONIC SURVEILLANCE IS
INCREDIBLE. 

SECOND, AN EXTENSION ORDER COULD VALIDLY BE GRANTED ONLY UPON AN
APPLICATION COMPLYING WITH SUBSECTION (1) OF 2518.  SUBSECTION (1)(E)
REQURIES THAT THE FACT OF PRIOR APPLICAITONS AND ORDERS BE REVEALED,
AND (1)(F) DIRECTS THAT THE APPLIATION SET OUT EITHER THE RESULTS
OBTAINED UNDER THE PRIOR ORDER OR AN EXPLANATION FOR THE ABSENCE OF
SUCH RESULTS.  PLAINLY THE FUNCTION OF 2518 (1)(F) IS TO PERMIT THE
COURT REALISTICALLY TO APPRAISE THE PROBABILITY THAT RELEVANT
CONVERSATIONS WOULD BE OVERHEAD IN THE FUTURE.  IF DURING THE INITIAL
PERIOD, NO COMMUNICATIONS OF THE KIND THAT HAD BEEN ANTICIPATED HAD
BEEN OVERHEARD, THE ACT REQUIRES AN ADEQUATE EXPLANATION FOR THE
FAILURE BEFORE THE NECESSARY FINDINGS CAN BE MADE AS A PREDICATE TO AN
EXTENSION ORDER.  BUT HERE THERE WERE RESULTS, AND THEY WERE SET OUT IN
GREAT DETAIL.  HAD THEY BEEN OMITTED NO EXTENSION ORDER AT ALL COULD
HAVE BEEN GRANTED; BUT WITH THEM, THERE WERE SUFFICIENT FACTS TO
WARRANT THE TRIAL COURT'S FINDING, IN ACCORDANCE WITH 2518(3)(B), OF
PROBABLE CAUSE TO BELIEVE THAT WIRE COMMUNICATIONS CONCERNING THE
OFFENSES INVOLVED "WILL BE OBTAINED THROUGH THE INTERCEPTIOPN," APP.
83, AS WELL AS THE FINDING COMPLYING WITH 2518(3)(D) THAT THERE WAS
PROBABLE CAUSE TO BELIEVE THAT GIORDANO'S TELEPHONE "HAS BEEN USED, IS
BEING USED, AND WILL BE USED, IN CONNECTION WITH THE COMMISSION OF THE
OFFENSES DESCRIBED ABOVE AND IS COMMONLY USED BY NICHOLAS GIORDANO . .
."  AND NINE OTHER NAMED PERSONS.  IBID. 

IT IS URGED IN DISSENT THAT THE INFORMATION OBTAINED FROM THE
ILLEGAL OCTOBER 16 INTERCEPTION ORDER MAY BE IGNORED AND THAT THE
REMAINING EVIDENCE SUBMITTED IN THE EXTENSION APPLICATION WAS
SUFFICIENT TO SUPPORT THE EXTENSION ORDER.  BUT WHETHER OR NOT THE
APPLICAITON, WITHOUT THE FACTS OBTAINED FROM MONITORING GIORDANO'S
TELEPHONE, WOULD INDEPENDENTLY SUPPORT ORIGINAL WIRETAP AUTHORITY, THE
ACT ITSELF FORBIDS EXTENSION OF PRIOR AUTHORIZATIONS WITHOUT
CONSIDERATION OF THE RESULTS MEANWHILE OBTAINED.  OBVIOUSLY, THOSE
RESULTS WERE PRESENTED, CONSIDERED, AND RELIED ON IN THIS CASE. 
MOREOVER, AS PREVIOUSLY NOTED, THE GOVERNMENT ITSELF HAD STATED THAT
THE WIRE INTERCEPTION WAS AN INDISPENSABLE FACTOR IN ITS INVESTIGATION
AND THAT ORDINARY SURVEILLANCE ALOND WOULD HAVE BEEN INSUFFICIENT.  IN
OUR VIEW, THE RESULTS OF THE CONVERSATIONS OVERHEARD UNDER THE INITIAL
ORDER WERE ESSENTIAL, BOTH IN FACT AND IN LAW, TO ANY EXTENSION OF THE
INTERCEPT AUTHORITY.  ACCORDINGLY, COMMUNICATIONS INTERCEPTED UNDER THE
EXTENSION ORDER ARE DERIVATIVE EVIDENCE AND MUST BE SUPPRESSED.  /19/
THE JUDGMENT OF THE COURT OF APPEALS IS

AFFIRMED. 

/1/  THIS AND OTHER RELEVANT PROVISIONS OF THE STATUTE ARE CONTAINED
IN THE APPENDIX TO THIS OPINION, POST, P. 534. 

/2/  EVIDENCE DERIVED FROM THE UNLAWFUL INTERCEPTIONS CONDUCTED
PURSUANT TO THE OCTOBER 16 WIRETAP ORDER WAS HELD TO INCLUDE THE
EVIDENCE OBTAINED UNDER THE NOVEMBER 6 WIRETAP EXTENSION ORDER AND ALSO
THE EVIDENCE SECURED UNDER COURT ORDERS OF OCTOBER 22 AND NOVEMBER 6
EXTENDING INVESTIGATIVE AUTHORITY TO USE A "PEN REGISTER,"  I. E., A
DEVICE THAT RECORDS TELEPHONE NUMBERS DIALED FROM A PARTICULAR PHONE,
WHICH HAD PREVIOUSLY BEEN USED TO MONITOR THE NUMBERS DIALED FROM
GIORDANO2S PHONE PURSUANT TO A COURT ORDER OF OCTOBER 8.  THE
APPLICAITONS PRESENTED TO THE DISTRICT COURT TO EXTEND WIRETAP AND PEN
REGISTER AUTHORITY EACH DETAILED AT CONSIDERABLE LENGTH THE CONTENTS OF
CONVERSATIONS INTERCEPTED PURSUANT TO THE OCTOBER 16 ORDER IN SUPPORT
OF THE REQUESTS.  WE THEREFORE AGREE WITH THE COURT OF APPEALS, FOR THE
REASONS DISCUSSED IN PART IV, INFRA, THAT EVIDENCE GATHERED UNDER THE
WIRETAP AND PEN REGISTER EXTENSION ORDERS IS TAINTED BY THE USE OF
UNLAWFULLY INTERCEPTED COMMUINICATIONS UNDER THE OCTOBER 16 ORDER TO
SECURE JUDICIAL APPROVAL FOR THE EXTENSIONS, AND MUST BE SUPPRESSED. 

/3/  THE SECOND CIRCUIT HAS HELD THAT APPROVAL OF WIRETAP
APPLICATIONS BY THE ATTORNEY GENERAL'S EXECUTIVE ASSISTANT COMPLIES
WITH THE DICTATES OF 2516(1).  IN UNITED STATES V. PISACANO, 459 F.2D
259 (1972), THE COURT REFUSED TO PERMIT WITHDRAWAL OF GUILTY PLEAS ON
THE BASIS OF SUBSEQUENT DISCOVERY THAT THE EXECUTIVE ASSISTANT HAD
AUTHORIZED THE FIRST OF THREE WIRETAP APPLICATIONS, DECLARING THAT IT
WAS "NOT AT ALL CONVINCED THAT IF THIS CASE HAD GONE TO TRIAL AND THE
COURT HAD REFUSED TO SUPPRESS EVIDENCE OBTAINED BY THE WIRETAPS, WE
WOULD HAVE REVERSED," AND THAT "THE JUSTICE DEPARTMENT'S PROCEDURES
WERE VERY LIKELY CONSISTENT WITH THE MANDATE OF 2516(1)."  ID., AT 264
AND N.5.  SHORTLY THEREAFTER A DIFFERENT PANEL OF THAT CIRCUIT AFFIRMED
JUDGMENTS OF CONVICTIONS IN A CASE RAISING THE SAME ISSUE, OUT OF
"ADHERENCE TO THE LAW OF THE CIRCUIT" SO RECENTLY DECIDED AND WITH THE
ADMONITION THAT ITS DECISON SHOULD "NOT . . . BE CONSTRUED AS AN
APPROVAL OF THE PROCEDURE FOLLOWED BY THE ATTORNEY GENERAL AND HIS
STAFF."  UNITED STATES V. BECKER, 461 F.2D 230, 236 (1972).  IN EVERY
OTHER CIRCUIT WHICH HAS CONSIDERED THE ISSUE, SUPPRESSION OF EVIDENCE
DERIVED FROM COURT-APPROVED WIRE INTERCEPTIONS BASED ON AN APPLICATION
AUTHORIZED BY THE ATTORNEY GENERAL'S EXECUTIVE ASSISTANT HAS BEEN HELD
TO BE REQUIRED BY TITLE III.  UNITED STATES V. MANTELLO, 156 U.S. APP.
D.C. 2, 478 F.2D 671 (1973); UNITED STATES V. ROBERTS, 477 F.2D 57 (CA7
1973); UNITED STATES V. KING, 478 F.2D 494 (CA9 1973).  SEE ALSO UNITED
STATES V. ROBINSON, 468 F.2D 189 (CA5 1972), REMANDED FOR AN
EVIDENTIARY HEARING TO DETERMINE WHETHER THE APPLICATIONS WERE PROPERLY
AUTHORIZED UNDER 2516(1), 478 F.2D 973 (EN BLANC 1973). 

/4/  BECAUSE OF OUR DISPOSITION OF THIS CASE, WE DO NOT REACH THE
GROUNDS RELIED UPON BY THE DISTRICT COURT.  THE ISSUE RESOLVED IN THE
DISTRICT COURT, HOWEVER, IS THE SUBJECT OF THE COMPANION CASE, UNITED
STATES V. CHAVEZ, POST, P. 562. 

/5/  IN FULL, 28 U.S.C. 509 PROVIDES: 

"509.  FUNCTIONS OF THE ATTORNEY GENERAL. 

"ALL FUNCTIONS OF OTHER OFFICERS OF THE DEPARTMENT OF JUSTICE AND
ALL FUNCTIONS OF AGENCIES AND EMPLOYEES OF THE DEPARTMENT OF JUSTICE
ARE VESTED IN THE ATTORNEY GENERAL EXCEPT THE FUNCTIONS--' 

"(1) VESTED BY SUBSCHAPTER II OF CHAPTER 5 OF TITLE 5 IN HEARING
EXAMINERS EMPLOYED BY THE DEPARTMENT OF JUSTICE; 

"(2) OF THE FEDERAL PRISON INDUSTRIES, INC.; 

"(3) OF THE BOARD OF DIRECTORS AND OFFICERS OF THE FEDERAL PRISON
INDUSTRIES, INC.; AND 

"(4) OF THE BOARD OF PAROLE." 

/6/  CRIMINAL SANCTIONS WERE PROVIDED IN 18 U.S.C. 2511, AND A CIVIL
DAMAGE REMEDY WAS CREATED BY 2520.  SEE APPENDIX TO THIS OPINION, POST,
P. 534. 

/7/  IN 1967, A DRAFT STATUTE PREPARED BY PROFESSOR G. ROBERT BLAKEY
OF THE UNIVERSITY OF NOTRE DAME LAW SCHOOL TO REGULATE THE INTERCEPTION
OF WIRE AND ORAL COMMUNICATIONS WAS PUBLISHED IN THE PRESIDNET'S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE
REPORT: ORGANIZED CRIME, APPENDIX C, AT 106 - 113.  IN PART, IT WOULD
HAVE ADDED A PROVISION TO TITLE 18, U.S.C.  WHICH EMPOWERED THE
"ATTORNEY GENERAL, OR ANY ASSISTANT ATTORNEY GENERAL" TO AUTHROIZE AN
APPLICATION TO A FEDERAL JUDGE FOR AN ORDER TO INTERCEPT WIRE OR ORAL
COMMUNICATIONS.  ID., AT 108.  SENATOR MCCLELLAN INTRODUCED A PROPOSED
"FEDERAL WIRE INTERCEPTION ACT," S. 675, ON JANUARY 25, 1967, 113 CONG.
REC. 1491, CONTAINING, IN 5(A), THE SAME DESIGNATIONS OF WHICH FEDERAL
PROSECUTING OFFICIALS COULD AUTHORIZE A WIRETAP APPLICAITON.  HEARINGS
ON CONTROLLING CRIME THROUGH MORE EFFECTIVE LAW ENFORCEMENT BEFORE THE
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF THE SENATE COMMITTEE ON
THE JUDICIARY, 90TH CONG., 1ST SESS., 76 (1967).  SENATOR HRUSKA LATER
INTRODUCED S. 2050 ON JUNE 29, 1967, 113 CONG. REC. 18007, WHICH WOULD
HAVE PROVIDED FOR REGULATED USE OF ELECTRONIC SURVEILLANCE, AS WELL AS
WIRETAPPING, AND WHICH AGAIN MADE PROVISION, IN A NEW 2516 TO BE ADDED
TO TITLE 18, U.S.C.  FOR THE SAME SYSTEM OF APPROVAL OF APPLICAITONS
FOR THE INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS AS WAS PRESENT IN
THE BLAKEY BILL.  HEARINGS, SUPRA, AT 1005.  IN THE HOUSE OF
REPRESENTATIVES, THE BLAKEY BILL WAS INTRODUCED ON OCTOBER 3, 1967, IN
THE FORM OF H.R. 13275, 113 CONG. REC. 27718.  ULTIMATELY, THE SAME
OPERATIVE LANGUAGE WAS ENACTED IN TITLE III. 

/8/  IN THE HEARINGS ON THE MCCLELLAN BILL, S. 675, SEE N.7, SUPRA,
THE LIMITATION ON THE APPLICAITON AUTHORIZATION POWER WAS FREQUENTLY
BROUGHT TO THE FORE.  THUS, THE CHIEF JUDGE LUMBARD OF THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, WHO HAD EARLIER BEEN
UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK, NOTED IN
TESTIMONY ON MARCH 8, 1967, THAT THE "APPLICAITON WOULD REQUIRE
APPROVAL OF THE ATTONEY GENERAL OR A DESIGNATED ASSISTANT . . .,"  AND
HE URGED, IN SUPPORT OF HIS RECOMMENDATION THAT IT WAS UNNECESSARY TO
LIMIT THE USE OF WIRETAPPING TO THE INVESTIGATION OF A NARROW GROUP OF
SERIOUS CRIMES, THE FACT THAT THERE WERE OTHER FACTORS WHICH WOULD
GREATLY LIMIT THE USE OF WIRETAPPING, BEGINNING WITH THE OBSERVATION
THAT "THE PROPOSED STATUTE, SECTION 5A, PROVIDES THAT ONLY THE ATTORNEY
GENREAL, OR ANY ASSISTANT ATTORNEY GENERAL SPECIFICALLY DESIGNATED BY
HIM, MAY AUTHORIZE THE NECESSARY APPLICAITON WILL BE CAREFULLY
SCREENED."  HEARINGS ON CONTROLLING CRIME THROUGH MORE EFFECTIVE LAW
ENFORCEMENT, SUPRA, N.7, AT 171 - 172.  A LETTER URGING ADOPTION OF
LEGISLATION TO GOVERN THE AREA OF WIRETAPPING AND ELECTRONIC
EAVESDROPPING WAS SENT TO THE SUBSOMMITTEE ON MARCH 7 BY ALL LIVING
FORMER UNITED STATES ATTORNEYS OF THE SOUTHERN DISTRICT OF NEW YORK,
WHO RECOMMENDED THAT INTERCEPTION BE PROHIBITED "UNLESS AUTHORIZED BY A
FEDERAL JUDGE ON APPLICAITON OF THE ATTORNEY GENERAL, OR ANY ASSISTANT
ATTORNEY GENREAL OF THE DEPARTMENT OF JUSTICE SPECIALLY DESIGNATED BY
THE ATTORNEY GENERAL, WHEN SUCH AUTHORIZED INTERCEPTION OR RECORDING
MAY PROVIDE EVIDENCE OF AN OFFENSE AGAINST THE LAWS OF THE UNITED
STATES."  ID., AT 511 - 512.  AND SENATOR MCCLELLAN HIMSELF COMMENTED
TO A JUDGE TESTIFYING BEFORE THE SUBCOMMITTEE:     "THIS LEGISLATION,
AS YOU KNOW, REQUIRES RATHER THOROUGH COURT SUPERVISION THROUGH THE
APPLICATION FOR A COURT ORDER MADE BY THE ATTORNEY GENERAL OR OFFICIALS
DESIGNATED IN THE BILL.  A COURT, OF COURSE, WOULD HAVE TO WEIGH THE
PROBABLE CAUSE OR THE REASONABLE CAUSE IN SUPPORT OF SUCH AN
APPLICATION.  I DO NOT KNOW HOW TO TIGHTEN IT UP ANY MORE THAN WE HAVE
IN THE BILL.  . . . CAN YOU TELL US HOW TO TIGHTEN IT UP ANY NORE?" 
ID., AT 894 - 895. 

/9/  THE ATTORNEY GENERAL IS APPOINTED BY THE PRESIDENT, BY AND WITH
THE ADVICE AND CONSENT OF THE SENATE, 28 U.S.C. 503, AS ARE THE NINE
ASSISTATN ATTORNEYS GENREAL PROVIDED FOR IN 28 U.S.C. 506.  THE
POSITION OF EXECUTIVE ASSISTANT, ON THE OTHER HAND, IS ESTABLISHED BY
REGULATION, TO ASSIST THE ATTORNEY GENERAL, INTER ALIA, IN THE REVIEW
OF "MATTERS SUBMITTED FOR THE ATTORNEY GENERAL'S ACTION" AND TO
"(PERFORM SUCH OTHER DUTIES AND FUNCTIONS AS MAY BE SPECIALLY ASSIGNED
FROM TIME TO TIME BY THE ATTORNEY GENERAL."  28 CFR 0.6.  IT WOULD
APPEAR FROM THE GOVERNMENT'S BRIEF THAT THE EXECUTIVE ASSISTANT
INVOLVED IN THIS CASE SERVED AS EXECUTIVE ASSISTANT TO AT LEAST FOUR
ATTORNEYS GENERAL. 

/10/  IN DEBATE ON THE SENTAE FLOOR THE DAY BEFORE TITLE III WAS
ADOPTED, SENTAOR MCCLELLAN RESPONDED TO AN INQUIRY OF SENATOR LAUSCHE
IN THE FOLLOWING MATTER: 

"MR. LAUSCHE.  DOES THE BILL AS NOW WRITTEN GIVE ABSOLUTE,
UNCONDITIONAL POWER TO STOP SEARCHES OR TAPPING, OR TO AUTHORIZE
TAPPING? 

"MR. MCCLELLAN.  NO. WE HAVE TO GO FIRST TO THE ATTORNEY GENERAL IN
THE CASE OF THE FEDERAL GOVERNMENT, AND TO THE CHIEF LAW ENFORCEMENT
OFFICERS OF A STATE . . . 

"MR. LAUSCHE.  THERE IS, THEM, A PROHIBITION AGAINST TAPPING UNLESS
THE APPLICATION IS FILED WITH THE CHIEF LAW ENFORCEMENT OFFICIAL.  HE
APPROVES IT AND THEN THE APPLICATION IS FILED WITH THE COURT, IS THAT
NOT CORRECT? 

"MR. MCLELLAN.  THE CHIEF LAW ENFORCEMENT OFFICER, LIKE THE ATTORNEY
GENERAL OF THE UNITED STATES, MUST AUTHORIZE THE APPLICATION . . . . A
PROSECUTING ATTORNEY OR A U.S. DISTRICT ATTORNEY CANNOT, ON HIS OWN
MOTION, DO IT.  HE HAS TO GET THE AUTHORITY FROM THE ATTORNEY GENERAL
OF THE UNITED STATES FIRST TO SUBMIT THE APPLICATION TO THE COURT." 
114 CONG. REC. 14469.  DURING THE SAME DEBATE, SENATOR LONG READ FROM A
REPORT OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, COMMITTEE
ON FEDERAL LEGISLATION, COMMITTEE ON CIVIL RIGHTS, "PROPOSED
LEGISLATION ON WIRETAPPING AND EAVESDROPPING AFTER BERGER V. NEW YORK
AND KATZ V. UNITED STATES," WHICH COMMENTED ON THE APPLICAITON
PROVISION OF TITLE III IN THE FOLLOWING MANNER:

        "WHO MAY APPLY 

"THE BLAKEY BILL PROVIDES THAT APPLICATIONS FOR WIRETAPPING OR
EAVESDROPPING ORDERS MAY BE MADE BY ONLY A LIMITED NUMBER OF PERSONS. 
AT THE FEDERAL LEVEL THESE ARE THE ATTORNEY GENERAL OF THE UNITED
STATES OR AN ASSISTATN ATTORNEY GENERAL AND AT THE STATE LEVEL THEY ARE
THE STATE ATTORNEY GENERAL OR THE PRINCIPAL PROSECUTING ATTORNEY OF A
POLITICAL SUBDIVISION (SUCH AS A COUNTY OR CITY DISTRICT ATTORNEY). 

"WE AGREE THAT RESPONSIBILITY SHOULD BE FOCUSED ON THOSE PUBLIC
OFFICIALS WHO WILL BE PRINCIPALLY ACCOUNTABLE TO THE COURTS AND THE
PUBLIC FOR THEIR ACTIONS.  POLICE AND INVESTIGATIVE AGENCIES SHOULD NOT
HAVE THE POWER TO MAKE SUCH APPLICAITONS ON THEIR OWN.  ON THE OTHER
HAND, IT SEEMS ANOMALOUS TO PERMIT ONLY VERY HIGH FEDERAL OFFICIALS TO
APPLY, EXCLUDING SUCH OFFICIALS AS UNITED STATES ATTORNEYS FOR ENTIRE
STATES OR DISTRICTS LIKE THE SOUTHERN DISTRICT OF NEW YORK, WHILE
PERMITTING COUNTY DISTRICT ATTORNEYS WITH SUBSTANTIALLY LESS
RESPONSIBILITY TO MAKE APPLICATIONS.  . . . 

"WE ALSO WOULD SEEK TO REDUCE THE ANOMALY REFERRED TO ABOVE BY
PROVIDING THAT THE ATTORNEY GENERAL MAY DELEGATE TO UNITED STATES
ATTORNEYS THE POWER TO INITIATE APPLICATIONS."  114 CONG. REC. 14473 -
14474. 

/11/ THE FOLLOWING COMMENTS CONCERNING 2516(2) ARE FOUND IN S. REP.
NO. 1097, 90TH CONG., 2D SESS., 98 (1968): 

"PARAGRAPH (2) PROVIDES THAT THE PRINCIPAL PROSECUTING ATTORNEY OF
ANY STATE OR THE PRINCIPAL PROSECUTING ATTORNEY OF ANY POLITICAL
SUBDIVISION OF A STATE MAY AUTHORIZE AN APPLICATION TO A STATE JUDGE OF
COMPETENT JURISDICTION . . . FOR AN ORDER AUTHORIZING THE INTERCEPTION
OF WIRE OR ORAL COMMUNICATIONS.  THE ISSUE OF DELEGATION BY THAT
OFFICER WOULD BE A QUESTION OF STATE LAW.  IN MOST STATES, THE
PRINCIPAL PROSECUTING ATTORNEY OF THE STATE WOULD BE THE ATTORNEY
GENERAL.  THE IMPORTANT QUESTION, HOWEVER, IS NOT TO PROVIDE FOR THE
CENTRALIZATION OF POLICY RELATING TO STATEWIDE LAW ENFORCEMENT IN THE
AREA OF THE USE OF ELECTRONIC SURVEILLANCE IN THE CHIEF PROSECUTING
OFFICER OF THE STATE.  . . .WHERE NO SUCH OFFICE EXISTS, POLICYMAKING
WOULD NOT BE POSSIBLE ON A STATEWIDE BASIS; IT WOULD HAVE TO MOVE DOWN
TO THE NEXT LEVEL OF GOVERNMENT.  IN MOST STATES, THE PRINCIPAL
PROSECUTING ATTORNEY AT THE NEXT POLITICAL LEVEL OF A STATE, USUALLY
THE COUNTY, WOULD BE THE DISTRICT ATTORNEY, STATE'S ATTORNEY, OR COUNTY
SOLICITOR.  THE INTENT . . . IS TO CENTRALIZE AREAWIDE LAW ENFORCEMENT
POLICY IN HIM.  . . . WHERE THERE ARE BOTH AN ATTORNEY GENERAL AND A
DISTRICT ATTORNEY, EITHER COULD AUTHORIZE APPLICATIONS, THE ATTORNEY
GENERAL ANYWHERE IN THE STATE AND THE DISTRICT ATTORNEY ANYWHERE IN HIS
COUNTY.  THE PROPOSED PROVISION DOES NOT ENVISION A FURTHER BREAKDOWN. 
ALTHOUGH CITY ATTORNEYS MAY HAVE IN SOME PLACE LIMITED CRIMINAL
PROSECUTING JURISDICTION, THE PROPOSED PROVISION IS NOT INTENDED TO
INCLUDE THEM." 

/12/  WE ALSO DEEM IT CLEAR THAT THE AUTHORITY MUST BE EXERCISED
BEFORE THE APPLICATION IS PRESENTED TO A FEDERAL JUDGE.  THE SUGGESTION
THAT IT IS ACCEPTABLE PRACTICE UNDER 2516(1) FOR THE ATTORNEY GENERAL'S
EXECUTIVE ASSISTANT TO APPROVE WIRETAP APPLICATIONS IN THE ATTORNEY
GENERAL'S ABSENCE IF THE ATTORNEY GENERAL SUBSEQUENTLY, AFTER A COURT
ORDER HAS ISSUED, RATIFIES THE GIVING OF APPROVAL IN THE PARTICULAR
INSTANCE, EITHER DIRECTLY OR BY PERSONALLY APPROVING THE SUBMISSION OF
A FURTHER APPLICAITON FOR AN EXTENSION ORDER, AS IN THIS CASE, IS WIDE
OT THE MARK.  AS THE COURT OF APPEALS FOR THE FIFTH CIRCUIT NOTED IN
THE PANEL DECISION IN THE UNITED STATES V. ROBINSON, 468 F.2D, AT 193,
THE ATTORNEY GENERAL'S "AUTHORITY FROM CONGRESS WAS TO INITIATE WIRETAP
APPLICATIONS, NOT TO SEEK TO HAVE THOSE TERMINATED HE FOUND SHOULD
NEVER HAVE BEEN REQUESTED IN THE FIRST PLACE."  IT WOULD ILL SERVE THE
CONGRESSIONAL POLICY OF HAVING THE ATTORNEY GENERAL OR ONE OF HIS
ASSISTANTS SCREEN THE APPLICATIONS PRIOR TO THEIR SUBMISSION TO COURT
TO HAVE THE SCREENING PROCESS OCCUR AFTER THE APPLICATION IS MADE AND
AFTER INVESTIGATIVE OFFICIALS HAVE ALREADY BEGUN TO INTERCEPT WIRE OR
ORAL COMMUNICATIONS UNDER A COURT ORDER PREDICATED ON THE ASSUMPTION
THAT PROPER AUTHORIZATION TO APPLY FOR INTERCEPT AUTHORITY HAD BEEN
GIVEN. 

/13/  NO QUESTION IS RAISED IN THIS CASE CONCERNING THE MANNER OF
CONDUCTING THE COURT-APPROVED INTERCEPTIONS OF GIORDANO'S TELEPHONE AND
THUS 2518(10)(A)(III) IS INAPPLICABLE TO THE PRESENT SITUATION. 

/14/  THE COURT OF APPEALS ALSO HELD THAT SUPPRESSION WAS REQUIRED
UNDER SUPERVISION OF THE WIRETAP APPLICAITON WAS THE EQUIVALENT OF
FAILING TO IDENTIFY AT ALL IN THE INTERCEPTION ORDER THE PERSON WHO
AUTHORIZED THE APPLICAITON, RENDERING THE ORDER "INSUFFICIENT ON ITS
FACE."  MANIFESTLY, HOWEVER, THE ORDER, ON ITS FACE, CLEARLY, THROUGH
ERRONEOUSLY, IDENTIFIED ASSISTANT ATTORNEY GENERAL WILSON AS THE
JUSTICE DEPARTMENT OFFICER AUTHORIZING THE APPLICATION, PURSUANT TO
SPECIAL DESIGNATION BY THE ATTORNEY GENERAL.  AS IT STOOD, THE
INTERCEPT ORDER WAS FACIALLY SUFFICIENT UNDER 2516(1), AND DESPITE WHAT
WAS SUBSEQUENTLY DISCOVERED, THE COURT OF APPEALS WAS IN ERROR IN
JUSTIFYING SUPPRESSION UNDER 2518710)(A)(II). 

/15/  THE GOVERNMENT SUGGESTED AT ORAL ARGUMENT THAT, IN ADDITION TO
CONSTITUTIONAL VIOLATIONS, WILLFUL STATUTORY VIOLATIONS MIGHT ALSO FIT
WITHIN THE TERMS OF 2518(10)(A)(I).  TR. OF ORAL ARG. 33. 

/16/  THE DRAFT STATUTE PREPARED BY PROFESSOR BLAKEY PROVIDED THIS
FOURTH GROUND WARRANTING SUPPRESSION IN CASES WHERE THERE WAS NO
PROBABLE CAUSE FOR BELIEVING THE EXISTENCE OF THE GROUNDS ON WHICH THE
INTERCEPTION ORDER WAS ISSUED.  TASK FORCE REPORT: ORGANIZED CRIME,
SUPRA, N.7, AT 111, 3803(K)(1)(C).  SO DID THE MCCLELLAN BILL, S. 675,
WHICH WAS INTRODUCED PRIOR TO BERGER V. NEW YORK, 388 U.S. 41 (1967). 
HEARINGS ON CONTROLLING CRIME THROUGH MORE EFFECTIVE LAW ENFORCEMENT,
SUPRA, N.7, AT 78, 8(G)(3).  BUT THE BILL PROPOSED BY SENATOR HRUSKA
AFTER BERGER (S. 2050) OMITTED THIS GROUND IN A PROVISION THE LANGUAGE
OF WHICH IS SUBSTANTIALLY IDENTICAL TO 2518(10)(A) AS FINALLY ENACTED. 
ID., AT 1008, 2518(K)(1).  AN EXPLANATION FOR THE OMISSION IS PROVIDED
IN AN APPENDIX COMPARING S. 675 WITH S. 2050, WHICH WAS PUBLISHED BY
SENATOR SCOTT, A COSPONSOR OF THE LATTER BILL, IN AN ARTICLE IN THE
HOWARD LAW JOURNAL, WIRETAPPING AND ORGANIZED CRIME, 14 HOW.  L. J. 1
(1968), AND WHICH WAS REPRINTED IN SENATOR SCOTT'S REMARKS ON THE
SENATE FLOOR CONCERNING THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT
OF 1968.  114 CONG. REC. 13205 - 13211.  IT IS THERE SIMPLY STATED THAT
"SENATOR HRUSKS'S MAN SAYS THAT THE PROBABLE CAUSE TEST IS IMPLIED IN
(1)."  ID., AT 13211. 

/17/  IN RELEVANT PART S. REP. NO. 1097, SUPRA, N.11, AT 96, 106,
PROVIDES: 

"SECTION 2515 OF THE NEW CHAPTER IMPOSES AN EVIDENTIARY SANCTION TO
COMPEL COMPLIANCE WITH THE OTHER PROHIBITIONS OF THE CHAPTER.  . . .
THE PROVISION MUST, OF COURSE, BE READ IN LIGHT OF SECTION 2518(10)(A)
DISCUSSED BELOW, WHICH DEFINES THE CLASS ENTITLED TO MAKE A MOTION TO
SUPPRESS.  IT LARGELY REFLECTS EXISTING LAW.  IT APPLIES TO SUPPRESS
EVIDENCE DIRECTLY (NARDONE V. UNITED STATES, 302 U.S. 379 (1937)) OR
INDIRECTLY OBTAINED IN VIOLATION OF THE CHAPTER.  (NARDONE V. UNITED
STATES, 308 U.S. 338 (1939).)  THERE IS, HOWEVER, NO INTENTION TO
CHANGE THE ATTENUATION RULE.  . . . NOR GENERALLY TO PRESS THE SCOPE OF
THE SUPPRESSION ROLE BEYOND PRESENT SEARCH AND SEIZURE LAW.  . . . BUT
IT DOES APPLY ACROSS THE BOARD IN BOTH FEDERAL AND STATE PROCEEDINGS). 
. . . AND IT IS NOT LIMITED TO CRIMINAL PROCEEDINGS.  SUCH A
SUPPRESSION RULE IS NECESSARY AND PROPER TO PROTECT PRIVACY.  . . . THE
PROVISION THUS FORMS AN INTEGRAL PART OF THE SYSTEM OF LIMITATIONS
DESIGNED TO PROTECT PRIVACY.  ALONG WITH THE CRIMINAL AND CIVIL
REMEDIES, IT SHOULD SERVE TO GUARANTEE THAT THE STANDARDS OF THE NEW
CHAPTER WILL SHARPLY CURTAIL THE UNLAWFUL INTERCEPTION OF WIRE AND ORAL
COMMUNICATIONS. 

        .         .         .         .         . "(SECTION
2518(10)(A)) MUST BE READ IN CONNECTION WITH SECTIONS 2515 AND 2517,
DISCUSSED ABOVE, WHICH IT LIMITS.  IT PROVIDES THE REMEDY FOR THE RIGHT
CREATED BY SECTION 2515.  (EXCEPT FOR ITS INAPPLICABILITY TO GRAND JURY
PROCEEDINGS AND AN ABSENCE OF INTENT TO GRANT JURISDICTION TO FEDERAL
COURTS OVER CONGRESS,) (OTHERWISE, THE SCOPE OF THE PROVISION IS
INTENDED TO BE COMPREHENSIVE." 

/18/  WE FIND WITHOUT SUBSTANCE THE GOVERNMENT'S SUGGESTION THAT
SINCE 18 U.S.C. 2511(1)(C) MAKES CRIMINAL THE "WILLFUL" DISCLOSURE OF
THE CONTENTS OF AN INTERCEPTED COMMUNICATION, "KNOWING OR HAVING REASON
TO KNOW THAT THE INFORMATION WAS OBTAINED THROUGH THE INTERCEPTION OF A
WIRE OR ORAL COMMUNICATION IN VIOLATION OF THIS SUBSECTION," AND 2515
TIES THE PROPRIETY OF SUPPRESSION OF EVIDENCE TO THE IMPROPRIETY OF ITS
"DISCLOSURE," TO HOLD THAT STATUTORY VIOLATIONS COMMITTED IN THE
JUSTICE DEPARTMENT'S INTERNAL APPROVAL AND SUBMISSION PROCEDURES WITH
RESPECT TO WIRETAP APPLICATIONS PRECLUDE DISCLOSURE IN COURT WOULD BE
TO ATTRIBUTE TO CONGRESS AN INTENT TO IMPOSE SUBSTANTIAL CRIMINAL
PENALTIES FOR "EVERY DEFECT IN PROCESSING APPLICATIONS."  BRIEF FOR
UNITED STATES V. CHAVEZ, POST, P. 562, HAS CONCLUDED THAT NOT EVERY
DEFECT WILL WARRANT SUPPRESSION, IT IS EVIDENT THAT 2511 DOES NOT
IMPOSE CRIMINAL LIABILITY UNLESS DISCLOSURE IS "WILLFUL" AND UNLESS THE
INFORMATION WAS KNOWN TO HAVE BEEN OBTAINED IN VIOLATION OF 2511(1). 
CLEARLY, THE CIRCUMSTANCES UNDER WHICH SUPPRESSION OF EVIDENCE WOULD BE
REQUIRED ARE NOT NECESSARILY THE SAME AS THOSE UNDER WHICH A CRIMINAL
VIOLATION OF TITLE III WOULD BE FOUND. 

/19/  WE ARE ALSO OF THE VIEW THAT THE EVIDENCE OBTAINED FROM THE
EXTENDED AUTHORIZATIONS OF OCTOBER 22 AND NOVEMBER 6 FOR THE
INSTALLATION AND USE OF THE PEN REGISTER DEVICE ON GIORDANO'S TELEPHONE
WAS INADMISSIBLE BECAUSE DERIVED FROM THE INVALID WIRE INTERCEPTION
THAT BEGAN ON OCTOBER 16.  SEE N.2, SUPRA.  THE APPLICATION FOR THE
OCTOBER 22 EXTENSION ATTACHED THE LOGS OF TELEPHONE CONVERSATIONS
MONITORED UNDER THE OCTOBER 16 ORDER AND ASSERTED THAT THESE LOGS
REVELAED THE "CONTINUED USE OF THE TELEPHONE . . . FOR CONVERSATIONS
REGARDING ILLEGAL TRAFFICKING IN NARCOTICS."  APP. 55.  IN THESE
CIRCUMSTANCES, IT APPEARS TO US THAT THE ILLEGALLY MONITORED
CONVERSATIONS SHOULD BE CONSIDERED A CRITICAL ELEMENT IN EXTENDING THE
PEN REGISTER AUTHORITY.  WE HAVE BEEN FURNISHED WITH NOTHING TO
INDICATE THAT THE PEN REGISTER EXTENSION OF NOVEMBER 6 SHOULD BE
ACCORDED ANY DIFFERENT TREATMENT. 

(FOR CONCURRING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 580.) 

        APPENDIX TO OPINION OF THE COURT

        RELEVANT PROVISIONS OF TITLE III, OMNIBUS CRIME CONTROL AND

           SAFE STREETS ACT OF 1968, 18 U.S.C. 2510 - 2520 

2511.  INTERCEPTION AND DISCLOSURE OF WIRE OR ORAL COMMUNICATIONS
PROHIBITED. 

(1) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS CHAPTER ANY
PERSON WHO--' 

     (A) WILLFULLY INTERCEPTS, ENDEAVORS TO INTERCEPT, OR PROCURES

  ANY OTHER PERSON TO INTERCEPT OR ENDEAVOR TO INTERCEPT, ANY WIRE

  OR ORAL COMMUNICATION; 

     (B) WILLFULLY USES, ENDEAVORS TO USE, OR PROCURES ANY OTHER

PERSON TO USE OR ENDEAVOR TO USE AN ELECTRONIC, MECHANICAL, OR

  OTHER DEVICE TO INTERCEPT ANY ORAL COMMUNICATION WHEN--' 

     (I) SUCH DEVICE IS AFFIXED TO, OR OTHERWISE TRANSMITS A SIGNAL

  THROUGH, A WIRE, CABLE, OR OTHER LIKE CONNECTION USED IN WIRE

  COMMUNICATION; OR 

     (II) SUCH DEVICE TRANSMITS COMMUNICATIONS BY RADIO, OR

  INTERFERES WITH THE TRANSMISSION OF SUCH COMMUNICATION; OR 

     (III) SUCH PERSON KNOWS, OR HAS REASON TO KNOW, THAT SUCH

  DEVICE OR ANY COMPONENT THEREOF HAS BEEN SENT THROUGH THE MAIL OR

  TRANSPORTED IN INTERSTATE OR FOREIGN COMMERCE; OR 

    (IV) SUCH USE OR ENDEAVOR TO USE (A) TAKES PLACE ON THE

  PREMISES OF ANY BUSINESS OR OTHER COMMERCIAL ESTABLISHEMENT THE

  OPERATIONS OF WHICH AFFECT INTERSTATE OR FOREIGN COMMERCE; OR (B)

  OBTAINS OR IS FOR THE PURPOSE OF OBTAINING INFORMATION RELATING

  TO THE OPERATIONS OF ANY BUSINESS OR OTHER COMMERCIAL

  ESTABLISHMENT THE OPERATIONS OF WHICH AFFECT INTERSTATE OR

  FOREIGN COMMERCE; OR 

(V) SUCH PERSON ACTS IN THE DISTRICT OF COLUMBIA, THE

COMMONWEALTH OF PUERTO RICO, OR ANY TERRITORY OR POSSESSION OF

  THE UNITED STATES; 

     (C) WILLFULLY DISCLOSES, OR ENDEAVORS TO DISCLOSE, TO ANY
OTHER

  PERSON THE CONTENTS OF ANY WIRE OR ORAL COMMUNICATION, KNOWING OR

  HAVING REASON TO KNOW THAT THE INFORMATION WAS OBTAINED THROUGH

THE INTERCEPTION OF A WIRE OR ORAL COMMUNICATION IN VIOLATION OF

  THIS

D  SUBSECTION; OR D  (D) WILLFULLY USES, OR ENDEAVORS TO USE, THE
CONTENTS D  OF ANY WIRE OR ORAL COMMUNICATION, KNOWING OR HAVING D
REASON TO KNOW THAT THE INFORMATION WAS OBTAINED

  THROUGH THE INTERCEPTION OF A WIRE OR ORAL COMMUNICATION IN
VIOLATION OF THIS SUBSECTION; SHALL BE FINED NOT MORE THAN $10,000 OR
IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH. 

(2) (A)(I) IT SHALL NOT BE UNLAWFUL UNDER THIS CHAPTER FOR AN
OPERATOR OF A SWITCHBOARD, OR AN OFFICER, EMPLOYEE, OR AGENCT OF ANY
COMMUNICATION COMMON CARRIER, WHOSE FACILITIES ARE USED IN THE
TRANSMISSION OF A WIRE COMMUNICATION, TO INTERCEPT, DISCLOSE, OR USE
THAT COMMUNICATION IN THE NORMAL COURSE OF HIS EMPLOYMENT WHILE ENGAGED
IN ANY ACTIVITY WHICH IS A NECESSARY INCIDENT TO THE RENDITION OF HIS
SERVICE OR TO THE PROTECTION OF THE RIGHTS OR PROPERTY OF THE CARRIER
OF SUCH COMMUNICATION: PROVIDED, THAT SAID COMMUNICATION COMMON
CARRIERS SHALL NOT UTILIZE SERVICE OBSERVING OR RANDOM MONITORING
EXCEPT FOR MECHANICAL OR SERVICE QUALITY CONTROL CHECKS. 

     (II) IT SHALL NOT BE UNLAWFUL UNDER THIS CHAPTER FOR AN

  OFFICER, EMPLOYEE, OR AGENT OF ANY COMMUNICATION COMMON CARRIER

  TO PROVIDE INFORMATION, FACILITIES, OR TECHNICAL ASSISTANCE TO AN

  INVESTIGATIVE OR LAW ENFORCEMENT OFFICER WHO, PURSUANT TO THIS

  CHAPTER, IS AUTHORIZED TO INTERCEPT A WIRE OR ORAL

  COMMUNICATION. 

     (B) IT SHALL NOT BE UNLAWFUL UNDER THIS CHAPTER FOR AN
OFFICER,

  EMPLOYEE, OR AGENT OF THE FEDERAL COMMUNICATIONS COMMISSION, IN

  THE NORMAL COURSE OF HIS EMPLOYMENT AND IN DISCHARGE OF THE

  MONITORING RESPONSIBILITIES EXERCISED BY THE COMMISSION, IN THE

ENFORCEMENT OF CHAPTER 5 OF TITLE 47 OF THE U.S.C.  TO INTERCEPT

  A WIRE COMMUNICATION, OR ORAL COMMUNICATION TRANSMITTED BY RADIO,

  OR TO DISCLOSE OR USE THE INFORMATION THEREBY OBTAINED. 

     (C) IT SHALL NOT BE UNLAWFUL UNDER THIS CHAPTER FOR A PERSON

  ACTING UNDER COLOR OF LAW TO INTERCEPT A WIRE OR ORAL

  COMMUNICATION, WHERE SUCH PERSON IS A PARTY TO THE COMMUNICATION

  OR ONE OF THE PARTIES TO THE COMMUNICATION HAS GIVEN PRIOR

  CONSENT TO SUCH INTERCEPTION. 

     (D) IT SHALL NOT BE UNLAWFUL UNDER THIS CHAPTER FOR A PERSON

  NOT ACTING UNDER COLOR OF LAW TO INTERCEPT A WIRE OR ORAL

  COMMUNICATION WHERE SUCH PERSON IS A PARTY TO THE COMMUNICATION

  OR WHERE ONE OF THE PARTIES TO THE COMMUNICATION HAS GOVEN PRIOR

  CONSENT TO SUCH INTERCEPTION UNLESS SUCH COMMUNICATION IS

  INTERCEPTED FOR THE PURPOSE OF COMMITTING ANY CRIMINAL OR

  TORTIOUS ACT IN VIOLATION OF THE CONSITUTION OR LAWS OF THE

  UNITED STATES OR OF ANY STATE OR FOR THE PURPOSE OF COMMITTING

  ANY OTHER INJURIOUS ACT. 

(3) NOTHING CONTAINED IN THIS CHAPTER OR IN SECTION 605 OF THE
COMMUNICATIONS ACT OF 1934 (48 STAT. 1143; 47 U.S.C. 605) SHALL LIMIT
THE CONSTITUTIONAL POWER OF THE PRESIDENT TO TAKE SUCH MEASURES AS HE
DEEMS NECESSARY TO PROTECT THE NATION AGAINST ACTUAL OR POTENTIAL
ATTACK OR OTHER HOSTILE ACTS OF A FOREIGN POWER, TO OBTAIN FOREIGN
INTELLIGENCE INFORMATION DEEMED ESSENTIAL TO THE SECURITY OF THE UNITED
STATES, OR TO PROTECT NATIONAL SECURITY INFORMATION AGAINST FOREIGN
INTELLIGENCE ACTIVITIES.  NOR SHALL ANYTHING CONTAINED IN THIS CHAPTER
BE DEEMED TO LIMIT THE CONSTITUTIONAL POWER OF THE PRESIDENT TO TAKE
SUCH MEASURES AS HE DEEMS NECESSARY TO PROTECT THE UNITED STATES
AGAINST THE OVERTHROW OF THE GOVERNMENT BY FORCE OR OTHER UNLAWFUL
MEANS, OR AGAINST ANY OTHER CLEAR AND PRESENT DANGER TO THE STRUCTURE
OR EXISTENCE OF THE GOVERNMENT.  THE CONTENTS OF ANY WIRE OR ORAL
COMMUNICATION INTERCEPTED BY AUTHORITY OF THE PRESIDENT IN THE EXERCISE
IN ANY TRIAL HEARING, OR OTHER PROCEEDING ONLY WHERE SUCH INTERCEPTION
WAS REASONABLE, AND SHALL NOT BE OTHERWISE USED OR DISCLOSED EXCEPT AS
IS NECESSARY TO IMPLEMENT THAT POWER. 

        .         .         .      .         . 

2515.  PROHIBITION OF USE AS EVIDENCE OF INTERCEPTED WIRE OR ORAL
COMMUNICATIONS. 

WHENEVER ANY WIRE OR ORAL COMMUNICATION HAS BEEN INTERCEPTED, NO
PART OF THE CONTENTS OF SUCH COMMUNICATION AND NO EVIDENCE DERIVED
THEREFROM MAY BE RECEIVED IN EVIDENCE IN ANY TRIAL, HEARING, OR OTHER
PROCEEDING IN OR BEFORE ANY COURT, GRAND JURY, DEPARTMENT, OFFICER,
AGENCY, REGULATORY BODY, LEGISLATIVE COMMITTEE, OR OTHER AUTHORITY OF
THE UNITED STATES, A STATE, OR A POLITICAL SUBDIVISION THEREOF IF THE
DISCLOSURE OF THAT INFORMATION WOULD BE IN VIOLATION OF THIS CHAPTER. 

2516.  AUTHORIZATION FOR INTERCEPTION OF WIRE OR ORAL
COMMUNICATIONS. 

(1) THE ATTORNEY GENERAL, OR ANY ASSISTANT ATTORNEY GENERAL
SPECIALLY DESIGNATED BY THE ATTORNEY GENERAL, MAY AUTHORIZE AN
APPLICATION TO A FEDERAL JUDGE OF COMPETENT JURISDICTION FOR, AND SUCH
JUDGE MAY GRANT IN CONFORMITY WITH SECTION 2518 OF THIS CHAPTER AN
ORDER AUTHORIZING OR APPROVING THE INTERCEPTION OF WIRE OR ORAL
COMMUNICAITONS BY THE FEDERAL BUREAU OF INVESTIGATION, OR A FEDERAL
AGENCY HAVING RESPONSIBILITY FOR THE INVESTIGATION OF THE OFFENSE AS TO
WHICH THE APPLICATION IS MADE, WHEN SUCH INTERCEPTION MAY PROVIDE OR
HAS PROVIDED EVIDENCE OF--' 

     (A) ANY OFFENSE PUNISHABLE BY DEATH OR BY IMPRISONMENT FOR
MORE

  THAN ONE YEAR UNDER SECTIONS 2274 THROUGH 2277 OF TITLE 42 OF THE

U.S.C. (RELATING TO THE ENFORCEMENT OF THE ATOMIC ENERGY ACT OF

  1954), OR UNDER THE FOLLOWING CHAPTERS OF THIS TITLE: CHAPTER 37

  (RELATING TO TREASON), OR CHAPTER 102 (RELATING TO RIOTS); 

     (B) A VIOLATION OF SECTION 286 OR SECTION 501(C) OF TITLE 29,

  U.S.C. (DEALING WITH RESTRICTIONS ON PAYMENTS AND LOANS TO LABOR

  ORGANIZATIONS), OR ANY OFFENSE WHICH INVOLVES MURDER, KIDNAPPING,

  ROBBERY, OR EXTORTION, AND WHICH IS PUNISHABLE UNDER THIS TITLE; 

     (C) ANY OFFENSE WHICH IS PUNISHABLE UNDER THE FOLLOWING

  SECTIONS OF THIS TITLE: SECTION 201 (BRIBERY OF PUBLIC OFFICIALS

  AND WITNESSES), SECTION 224 (BRIBERY IN SPORTING CONTESTS),

  SUBSECTION (D), (E), (F), (G), (H), OR (I) OF SECTION 844

  (UNLAWFUL USE OF EXPLOSIVES), SECTION 1084 (TRANSMISSION OF

  WAGERING INFORMATION), SECTION 1503 (INFLUENCING OR INJURING AN

  OFFICER, JUROR, OR WITNESS GENERALLY), SECTION 1510 (OBSTRUCTION

  OF CRIMINAL INVESTIGATIONS), SECTION 1511 (OBSTRUCTION OF STATE

  OR LOCAL ENFORCEMENT), SECTION 1751 (PRESIDENTIAL ASSASSINATIONS,

  KIDNAPPING, ANS ASSAULT), SECTION 1951 (INTERFERENCE WITH

  COMMERCE BY THREATS OR VIOLENCE), SECTION 1952 (INTERSTATE AND

  FOREIGN TRAVEL OR TRANSPORTATION IN AID OF RACKETEERING

  ENTERPRISES), SECTION 1954 (OFFER, ACCEPTANCE, OR SOLICITATION TO

  INFLUENCE OPERATIONS OF EMPLOYEE BENEFIT PLAN), SECTION 1955

  (PROHIBITION OF BUSINESS ENTERPRISES OF GAMBLING), SECTION 659

  (THEFT FROM INTERSTATE SHIPMENT), SECTION 664 (EMBEZZLEMENT FROM

  PENSION AND WELFARE FUNDS), SECTIONS 2314 AND 2315 (INTERSTATE

  TRANSPORTATION OF STOLEN PROPERTY), SECTION 1963 (VILATIONS WITH

  RESPECT TO RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS) OR

  SECTION 351 (VIOLATIONS WITH RESPECT TO CONGRESSIONAL

  ASSASSINATION, KIDNAPPING, AND ASSAULT); 

     (D) ANY OFFENSE INVOLVING COUNTERFEITING PUNISHABLE UNDER

  SECTION 471, 472, OR 473 OF THIS TITLE; 

      (E) ANY OFFENSE INVOLVING BANKRUPTCY FRAUD OR THE
MANUFACTURE,

  IMPORTATION, RECEIVING, CONCEALMENT, BUYING, SELLING, OR

  OTHERWISE DEALING IN NARCOTIC DRUGS, MARIHUANA, OR OTHER

  DANGEROUS DRUGS, PUNISHABLE UNDER ANY LAW OF THE UNITED STATES; 

     (F) ANY OFFENSE INCLUDING EXTORTIONATE CREDIT TRANSACTIONS

  UNDER SECTIONS 892, 893, OR 894 OF THIS TITLE; OR 

     (G) ANY CONSPIRACY TO COMMIT ANY OF THE FOREGOING OFFENSES. 

(2) THE PRINCIPAL PROSECUTING ATTORNEY OF ANY STATE, OR THE
PRINCIPAL PROSECUTING ATTORNEY OF ANY POLITICAL SUBDIVISION THEREOF, IF
SUCH ATTORNEY IS AUTHORIZED BY A STATUTE OF THAT STATE TO MAKE
APPLICATION TO A STATE COURT JUDGE OF COMPETENT JURISDICTION FOR AN
ORDER AUTHORIZING OR APPROVING THE INTERCEPTION OF WIRE OR ORAL
COMMUNICATIONS, MAY APPLY TO SUCH JUDGE FOR, AND SUCH JUDGE MAY GRANT
IN CONFORMITY WITH SECTION 2518 OF THIS CHAPTER AND WITH THE APPLICABLE
STATE STATUTE AN ORDER AUTHORIZING, OR APPROVING THE INTERCEPTION OF
WIRE OR ORAL COMMUNICATIONS BY INVESTIGATIVE OR LAW ENFORCEMENT
OFFICERS HAVING RESPONSIBILITY FOR THE INVESTIGATION OF THE OFFENSE AS
TO WHICH THE APPLICATION IS MADE, WHEN SUCH INTERCEPTION MAY PROVIDE OR
HAS PROVIDED EVIDENCE OF THE COMMISSION OF THE OFFENSE OF MURDER,
KIDNAPPING, GAMBLING, ROBBERY, BRIBERY, EXTORTION, OR DEALING IN
NARCOTIC DRUGS, MARIHUANA, OR OTHER DANGEROUS DRUGS, OR OTHER CRIME
DANGEROUS TO LIFE, LIMB, OR PROPERTY, AND PUNISHABLE BY IMPRISONMENT
FOR MORE THAN ONE YEAR, DESIGNATED IN ANY APPLICABLE STATE STATUTE
AUTHORIZING SUCH INTERCEPTION, OR ANY CONSPIRACY TO COMMIT ANY OF THE
FOREGOING OFFENSES. 

        .         .         .         .         . 

2518.  PROCEDURE FOR INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS. 

(1) EACH APPLICAITON FOR AN ORDER AUTHORIZING OR APPROVING THE
INTERCEPTION OF A WIRE OR ORAL COMMUNICATION SHALL BE MADE IN WRITING
UPON OATH OR AFFIRMATION TO A JUDGE OF COMPETENT JURISDICTION AND SHALL
STATE THE APPLICANT'S AUTHORITY TO MAKE SUCH APPLICATION.  EACH
APPLICATION SHALL INCLUDE THE FOLLOWING INFORMATION: 

     (A) THE IDENTITY OF THE INVESTIGATIVE OR LAW ENFORCEMENT

  OFFICER MAKING THE APPLICATION, AND THE OFFICER AUTHORIZING THE

  APPLICATION; 

(B) A FULL AND COMPLETE STATEMENT OF THE FACTS AND

  CIRCUMSTANCES RELIED UPON BY THE APPLICANT, TO JUSTIFY HIS BELIEF

  THAT AN ORDER SHOULD BE ISSUED, INCLUDING (I) DETAILS AS TO THE

  PARTICULAR OFFENSE THAT HAS BEEN, IS BEING, OR IS ABOUT TO BE

  COMMITTED, (II) A PARTICULAR DESCRIPTION OF THE NATURE AND

  LOCATION OF THE FACILITIES FORM WHICH OR THE PLACE WHERE THE

  COMMUNICATION IS TO BE INTERCEPTED, (III) A PARTICULAR

  DESCRIPTION OF THE TYPE OF COMMUNICATIONS SOUGHT TO BE

  INTERCEPTED, (IV) THE IDENTITY OF THE PERSON, IF KNOWN,

  COMMITTING THE OFFENSE AND WHOSE COMMUNICATIONS ARE TO BE

  INTERCEPTED; 

     (C) A FULL AND COMPLETE STATEMENT AS TO WHETHER OR NOT OTHER

  INVESTIGATIVE PROCEDURES HAVE BEEN TRIED AND FAILED OR WHY THEY

REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED OR TO BE TOO

  DANGEROUS; 

     (D) A STATEMENT OF THE PERIOD OF TIME FOR WHICH THE

  INTERCEPTION IS REQUIRED TO BE MAINTAINED.  IF THE NATURE OF THE

  INVESTIGATION IS SUCH THAT THE AUTHORIZATION FOR INTERCEPTION

  SHOULD NOT AUTOMATICALLY TERMINATE WHEN THE DESCRIBED TYPE OF

  COMMUNICATION HAS BEEN FIRST OBTAINED, A PARTICULAR DESCRIPTION

  OF FACTS ESTABLISHING PROBABLE CAUSE TO BELIEVE THAT ADDITIONAL

COMMUNICATIONS OF THE SAME TYPE WILL OCCUR THEREAFTER; 

   (E) A FULL AND COMPLETE STATMENT OF THE FACTS CONCERNING ALL

  PREVIOUS APPLICATIONS KNOWN TO THE INDIVIDUAL AUTHORIZING AND

  MAKING THE APPLICATION, MADE TO ANY JUDGE FOR AUTHORIZATION TO

  INTERCEPT, OR FOR APPROVAL OF INTERCEPTIONS OF, WIRE OR ORAL

  COMMUNICATIONS INVOLVING ANY OF THE SAME PERSONS, FACILITIES OR

  PLACES SPECIFIED IN THE APPLICAITON, AND THE ACTION TAKEN BY THE

  JUDGE ON EACH SUCH APPLICATION; AND 

     (F) WHERE THE APPLICATION IS FOR THE EXTENSION OF AN ORDER, A

  STATEMENT SETTING FORTH THE RESULTS THUS FAR OBTAINED FROM THE

  INTERCEPTION, OR A REASONABLE EXPLANATION OF THE FAILURE TO

  OBTAIN SUCH RESULTS. 

(2) THE JUDGE MAY REQUIRE THE APPLICANT TO FURNISH ADDITIONAL
TESTIMONY OR DOCUMENTARY EVIDENCE IN SUPPORT OF THE APPLICAITON. 

(3) UPON SUCH APPLICATION THE JUDGE MAY ENTER AN EX PARTE ORDER, AS
REQUESTED OR AS MODIFIED, AUTHORIZING OR APPROVING INTERCEPTION OF WIRE
OR ORAL COMMUNICATION WITHIN THE TERRITORIAL JURISDICTION OF THE COURT
IN WHICH THE JUDGE IS SITTING, IF THE JUDGE DETERMINES ON THE BASIS OF
THE FACTS SUBMITTED BY THE APPLICANT THAT--' 

     (A) THERE IS PROBABLE CAUSE FOR BELIEF THAT AN INDIVIDUAL IS

  COMMITTING, HAS COMMITTED, OR IS ABOUT TO COMMIT A PARTICULAR

  OFFENSE ENUMERATED IN SECTION 2516 OF THIS CHAPTER; 

     (B) THERE IS PROBABLE CAUSE FOR BELIEF THAT PARTICULAR

  COMMUNICATIONS CONCERNING THAT OFFENSE WILL BE OBTAINED THROUGH

  SUCH INTERCEPTION; 

     (C) NORMAL INVESTIGATIVE PROCEDURES HAVE BEEN TRIED AND HAVE

  FAILED OR REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED OR

  TO BE TOO DANGEROUS; 

     (D) THERE IS PROBABLE CAUSE FOR BELIEF THAT THE FACILITIES
FROM

  WHICH, OR THE PLACE WHERE, THE WIRE OR ORAL COMMUNICATIONS ARE TO

  BE INTERCEPTED ARE BEING USED, OR ARE ABOUT TO BE USED, IN

  CONNECTION WITH THE COMMISSION OF SUCH OFFENSE, OR ARE LEASED TO,

  LISTED IN THE NAME OF, OR COMMONLY USED BY SUCH PERSON. 

(4) EACH ORDER AUTHORIZING OR APPROVING THE INTERCEPTION OF ANY WIRE
OR ORAL COMMUNICATION SHALL SPECIFY--' 

     (A) THE IDENTITY OF THE PERSON, IF KNOWN, WHOSE COMMUNICATIONS
ARE TO BE INTERCEPTED; 

(B) THE NATURE AND LOCATION OF THE COMMUNICATIONS FACILITIES AS

  TO WHICH, OR THE PLACE WHERE, AUTHORITY TO INTERCEPT IS GRANTED; 

     (C) A PARTICULAR DESCRIPTION OF THE TYPE OF COMMUNICATION

  SOUGHT TO BE INTERCEPTED, AND A STATEMENT OF THE PARTICULAR

  OFFENSE TO WHICH IT RELATES; 

  (D) THE IDENTITY OF THE AGENCY AUTHORIZED TO INTERCEPT THE

  COMMUNICATIONS, AND OF THE PERSON AUTHORIZING THE APPLICATION;

  AND 

     (E) THE PERIOD OF TIME DURING WHICH SUCH INTERCEPTION IS

  AUTHORIZED, INCLUDING A STATEMENT AS TO WHETHER OR NOT THE

  INTERCEPTION SHALL AUTOMATICALLY TERMINATE WHEN THE DESCRIBED

  COMMUNICATION HAS BEEN FIRST OBTAINED. 

AN ORDER AUTHORIZING THE INTERCEPTION OF A WIRE OR ORAL COMMUNICATION
SHALL, UPON REQUEST OF THE APPLICANT, DIRECT THAT A COMMUNICATION
COMMON CARRIER, LANDLORD, CUSTODIAN OR OTHER PERSON SHALL FURNSIH THE
APPLICANT FORTHWITH ALL INFORMATION, FACILITIES, AND TECHNICAL
ASSISTANCE NECESSARY TO ACCOMPLISH THE INTERCEPTION UNOBTRUSIVELY AND
WITH A MINIMUM OF INTERFERENCE WITH THE SERVICES THAT SUCH CARRIER,
LANDLORD, CUSTODIAN, OR PERSON IS ACCORDING THE PERSON WHOSE
COMMUNICATIONS ARE TO BE INTERCEPTED.  ANY COMMUNICATION COMMON
CARRIER, LANDLORD, CUSTODIAN OR OTHER PERSON FURNISHING SUCH FACILITIES
OR TECHNICAL ASSISTANCE SHALL BE COMPENSATED THEREFOR BY THE APPLICANT
AT THE PREVAILING RATES. 

(5) NO ORDER ENTERED UNDER THIS SECTION MAY AUTHORIZE OR APPROVE THE
INTERCEPTION OF ANY WIRE OR ORAL COMMUNICATION FOR ANY PERIOD LONGER
THAN IN NECESSARY TO ACHIEVE THE OBJECTIVE OF THE AUTHORIZATION, NOR IN
ANY EVENT LONGER THAN THIRTY DAYS.  EXTENSIONS OF AN ORDER MAY BE
GRANTED, BUT ONLY UPON APPLICAITON FOR AN EXTENSION MADE IN ACCORDANCE
WITH SUBSECTION (1) OF THIS SECTION AND THE COURT MAKING THE FINDINGS
REQUIRED BY SUBSECTION (3) OF THIS SECTION.  THE PERIOD OF EXTENSION
SHALL BE NO LONGER THAN THE AUTHORIZING JUDGE DEEMS NECESSARY TO
ACHIEVE THE PURPOSES FOR WHICH IT WAS GRANTED AND IN NO EVENT FOR
LONGER THAN THIRTY DAYS.  EVERY ORDER AND EXTENSION THEREOF SHALL
CONTAIN A PROVISION THAT THE AUTHORIZATION TO INTERCEPT SHALL BE
EXECUTED AS SOON AS PRACTICABLE, SHALL BE CONDUCTED IN SUCH A WAY AS TO
MINIMIZE THE INTERCEPTION OF COMMUNICATIONS NOT OTHERWISE SUBJECT TO
INTERCEPTION UNDER THIS CHAPTER, AND MUST TERMINATE UPON ATTAINMENT OF
THE AUTHORIZED OBJECTIVE, OR IN ANY EVENT IN THIRTY DAYS. 

(6) WHENEVER AN ORDER AUTHORIZING INTERCEPTION IS ENTERED PURSUANT
TO THIS CHAPTER, THE ORDER MAY REQUIRE REPORTS TO BE MADE TO THE JUDGE
WHO ISSUED THE ORDER SHOWING WHAT PROGRESS HAS BEEN MADE TOWARD
ACHIEVEMENT OF THE AUTHORIZED OBJECTIVE AND THE NEED FOR CONTINUED
INTERCEPTION.  SUCH REPORTS SHALL BE MADE AT SUCH INTERVALS AS THE
JUDGE MAY REQUIRE. 

(7) NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, ANY
INVESTIGATIVE OR LAW ENFORCEMENT OFFICER, SPECIALLY DESIGNATED BY THE
ATTORNEY GENERAL OR BY THE PRINCIPAL PROSECUTING ATTORNEY OF ANY STATE
OR SUBDIVISION THEREOF ACTING PURSUANT TO A STATUTE OF THAT STATE, WHO
REASONABLY DETERMINES THAT--' 

     (A) AN EMERGENCY SITUATION EXISTS WITH RESPECT TO

  CONSPIRATORIAL ACTIVITIES THREATENING THE NATIONAL SECURITY

  INTEREST OR TO CONSPIRATORIAL ACTIVITIES CHARACTERISTIC OF

  ORGANIZED CRIME THAT REQUIRES A WIRE OR ORAL COMMUNICATION TO BE

  INTERCEPTED BEFORE AN ORDER AUTHORIZING SUCH INTERCEPTION CAN

  WITH DUE DILIGENCE BE OBTAINED, AND 

      (B) THERE ARE GROUNDS UPON WHICH AN ORDER COULD BE ENTERED

  UNDER THIS CHAPTER TO AUTHORIZE SUCH INTERCEPTION,

MAY INTERCEPT SUCH WIRE OR ORAL COMMUNICATION IF AN APPLICATION FOR AN
ORDER APPROVING THE INTERCEPTION IS MADE IN ACCORDANCE WITH THIS
BEGINS TO OCCUR.  IN THE ABSENCE OF AN ORDER, SUCH INTERCEPTION SHALL
TERMINATE IMMEDIATELY TERMINATE WHEN THE COMMUNICATION SOUGHT IS
OBTAINED OR WHEN THE APPLICATION FOR THE ORDER IS DENIED, WHICHEVER IS
EARLIER.  IN THE EVENT SUCH APPLICATION FOR APPROVAL IS DENIED, OR IN
ANY OTHER CASE WHERE THE INTERCEPTION IS TERMINATED WITHOUT AN ORDER
HAVING BEEN ISSUED, THE CONTENTS OF ANY WIRE OR ORAL COMMUNICATION
INTERCEPTED SHALL BE TREATED AS HAVING BEEN OBTAINED IN VIOLATION OF
THIS CHAPTER, AND AN INVENTORY SHALL BE SERVED AS PROVIDED IN
SUBSECTION (D) OF THIS SECTION ON THE PERSON NAMED IN THE APPLICATION. 

(8)(A) THE CONTENTS OF ANY WIRE OR ORAL COMMUNICATION INTERCEPTED BY
ANY MEANS AUTHROIZED BY THIS CHAPTER SHALL, IF POSSIBLE, BE RECORDED ON
TAPE OR WIRE OR OTHER COMPARABLE DEVICE.  THE RECORDING OF THE OCNTENTS
OF ANY WIRE OR ORAL COMMUNICATION UNDER THIS SUBSECTION SHALL BE DONE
IN SUCH A WAY AS WILL PROTECT THE RECORDING FROM EDITING OR OTHER
ALTERATIONS.  IMMEDIATELY UPON THE EXPIRATION OF THE PERIOD OF THE
ORDER, OR EXTENSIONS THEREOF, SUCH RECORDINGS SHALL BE MADE AVAILABLE
TO THE JUDGE ISSUING SUCH ORDER AND SEALED UNDER HIS DIRECTIONS. 
CUSTODY OF THE RECORDINGS SHALL BE WHEREVER THE JUDGE ORDERS.  THEY
SHALL NOT BE DESTROYED EXCEPT UPON AN ORDER OF THE ISSUING OR DENYING
JUDGE AND IN ANY EVENT SHALL BE KEPT FOR TEN YEARS.  DUPLICATE
RECORDINGS MAY BE MADE FOR USE OR DISCLOSURE PURSUANT TO THE PROVISIONS
OF SUBSECTIONS (1) AND (2) OF SECTION 2517 OF THIS CHAPTER FOR
INVESTIGATIONS.  THE PRESENCE OF THE SEAL PROVIDED FOR BY THIS
SUBSECTION, OR A SATISFACTORY EXPLANATION FOR THE ABSENCE THEREOF,
SHALL BE A PREREQUISITE FOR THE USE OR DISCLOSURE OF THE CONTENTS OF
ANY WIRE OR ORAL COMMUNICATION OR EVIDENCE DERIVED THEREFROM UNDER
SUBSECTION (3) OF SECTION 2517. 

    (B) APPLICATIONS MADE AN ORDERS GRANTED UNDER THIS CHAPTER

  SHALL BE SEALED BY THE JUDGE.  CUSTODY OF THE APPLICATIONS AND

  ORDERS SHALL BE WHEREVER THE JDUGE DIRECTS.  SUCH APPLICATION AND

  ORDERS SHALL BE DISCLOSED ONLY UPON A SHOWING OF GOOD CAUSE

  BEFORE A JUDGE OF COMPETENT JURISDICTION AND SHALL NOT BE

  DESTROYED EXCEPT ON ORDER OF THE ISSUING OR DENYING JUDGE, AND IN

  ANY EVENT SHALL BE KEPT FOR TEN YEARS. 

     (C) ANY VIOLATION OF THE PROVISIONS OF THIS SUBSECTION MAY BE

  PUNISHED AS CONTEMPT OF THE ISSUING OR DENYING JUDGE. 

     (D) WITHIN A REASONABLE TIME BUT NOT LATER THAN NINETY DAYS

  AFTER THE FILING OF AN APPLICATION FOR AN ORDER OF APPROVAL UNDER

  SECTION 2518(7)(B) WHICH IS DENIED OR THE TERMINATION OF THE

  PERIOD OF AN ORDER OR EXTENSIONS THEREOF, THE ISSUING OR DENYING

 JUDGE SHALL CAUSE TO BE SERVED, ON THE PERSONS NAMED IN THE ORDER

  OR THE APPLICATION, AND SUCH OTHER PARTIES TO INTERCEPTED

  COMMUNICATIONS AS THE JUDGE MAY DETERMINE IN HIS DISCRETION THAT

  IS IN THE INTEREST OF JUSTICE, AN INVENTORY WHICH SHALL INCLUDE

  NOTICE OF--' 

     (1) THE FACT OF THE ENTRY OF THE ORDER OR THE APPLICATION; 

(2) THE DATE OF THE ENTRY AND THE PERIOD OF AUTHORIZED,

APPROVED OR DISAPPROVED INTERCEPTION, OR THE DENIAL OF THE

 APPLICATION; AND 

     (3) THE FACT THAT DURING THE PERIOD WIRE OR ORAL
COMMUNICATIONS

  WERE OR WERE NOT INTERECPTED. 

THE JUDGE, UPON THE FILING OF A MOTION, MAY IN HIS DISCRETION MAKE
AVAILABLE TO SUCH PERSON OR HIS COUNSEL FOR INSPECTION SUCH PORTIONS OF
THE INTERCEPTED COMMMUNICATIONS, APPLICAITONS AND ORDERS AS THE JUDGE
DETERMINES TO BE IN THE INTEREST OF JUSTICE.  ON AN EX PARTE SHOWING OF
GOOD CAUSE TO A JUDGE OF COMPETENT JURISDICTION THE SERVING OF THE
INVENTORY REQUIRED BY THIS SUBSECTION MAY BE POSTPONED. 

(9) THE CONTENTS OF ANY INTERECTED WIRE OR ORAL COMMUNICATION OR
EVIDENCE DERIVED THEREFROM SHALL NOT BE RECEIVED IN EVIDENCE OR
OTHERWISE DISCLOSED IN ANY TRIAL, HEARING, OR OTHER PROCEEDING IN A
FEDERAL OR STATE COURT UNLESS EACH PARTY, NOT LESS THAN TEN DAYS BEFORE
THE TRIAL, HEARING, OR PROCEEDING, HAS BEEN FURNISHED WITH A COPY OF
THE COURT ORDER, AND ACCOMPANYING APPLICATION, UNDER WHICH THE
INTERCEPTION WAS AUTHORIZED OR APPROVED.  THIS TEN-DAY PERIOD MAY BE
WAIVED BY THE JUDGE IF HE FINDS THAT IT WAS NOT POSSIBLE TO FURNISH THE
PARTY WITH THE ABOVE INFORMATION TEN DAYS BEFORE THE TRIAL, HEARING, OR
PROCEEDING AND THAT THE PARTY WILL NOT BE PREJUDICED BY THE DELAY IN
RECEIVING SUCH INFORMATION. 

(10)(A) ANY AGGRIEVED PERSON IN ANY TRIAL, HEARING, OR PROCEEDING IN
OR BEFORE ANY COURT, DEPARTMENT, OFFICER, AGENCY, REGULATORY BODY, OR
OTHER AUTHORITY OF THE UNITED STATES, A STATE, OR A POLITICAL
SUBDIVISON THEREOF, MAY MOVE TO SUPPRESS THE CONTENTS OF ANY
INTERCEPTED WIRE OR ORAL COMMUNICATION, OR EVIDENCE DERIVED THEREFROM,
ON THE GROUNDS THAT--' 

     (I) THE COMMUNICAITON WAS UNLAWFULLY INTERCEPTED; 

     (II) THE ORDER OF AUTHORIZATION OR APPROVAL UNDER WHICH IT WAS

  INTERCEPTED IS INSUFFICIENT ON ITS FACE; OR 

     (III) THE INTERCEPTION WAS NOT MADE IN CONFORMITY WITH THE

  ORDER OF AUTHORIZATION OR APPROVAL. 

SUCH MOTION SHALL BE MADE BEFORE THE TRIAL, HEARING, OR PROCEEDING
UNLESS THERE WAS NO OPPORUNITY TO MAKE SUCH MOTION OR THE PERSON WAS
NOT AWARE OF THE GROUNDS OF THE MOTION.  IF THE MOTION IS GRANTED, THE
CONTENTS OF THE INTERCEPTED WIRE OR ORAL COMMUNICATION, OR EVIDENCE
DERIVED THEREFROM, SHALL BE TREATED AS HAVING BEEN OBTAINED IN
VIOLATION OF THIS CHAPTER.  THE JUDGE, UPON THE FILING OF SUCH MOTION
BY THE AGGRIEVED PERSON, MAY IN HIS DISCRETION MAKE AVAILABLE TO THE
AGGRIEVED PERSON OR HIS COUNSEL FOR INSPECTION SUCH PORTIONS OF THE
INTERCEPTED COMMUNICATION OR EVIDENCE DERIVED THEREFROM AS THE JUDGE
DETERMINES TO BE IN THE INTERESTS OF JUSTICE. 

(B) IN ADDITION TO ANY OTHER RIGHT TO APPEAL, THE UNITED STATES
SHALL HAVE THE RIGHT TO APPEAL FROM AN ORDER GRANTING A MOTION TO
SUPPRESS MADE UNDER PARAGRAPH (A) OF THIS SUBSECTION, OR THE DENIAL OF
AN APPLICAITON FOR AN ORDER OF APPROVAL, IF THE UNITED STATES ATTORNEY
SHALL CERTIFY TO THE JUDGE OR OTHER OFFICIAL GRANTING SUCH MOTION OR
DENYING SUCH APPLICAITON THAT THE APPEAL IS NOT TAKEN FOR PURPOSES OF
DELAY.  SUCH APPEAL SHALL BE TAKEN WITHIN THRITY DAYS AFTER THE DATE
THE ORDER WAS ENTERED AND SHALL BE DILIGENTLY PROSECUTED. 

        .         .     .         .         . 

2520.  RECOVERY OF CIVIL DAMAGES AUTHORIZED. 

ANY PERSON WHOSE WIRE OR ORAL COMMUNICATION IS INTERCEPTED,
DISCLOSED, OR USED IN VIOLATION OF THIS CHAPTER SHALL HAVE (1) A CIVIL
CAUSE OF ACTION AGAINST ANY PERSON WHO INTERCEPTS, DISCLOSES, OR USES,
OR PROCURES ANY OTHER PERSON TO INTERCEPT, DISCLOSE, OR USE SUCH
COMMUNICATIONS, AND (2) BE ENTITLED TO RECOVER FROM ANY SUCH PERSON--' 

     (A) ACTUAL DAMAGES BUT NOT LESS THAN LIQUIDATED DAMAGES

  COMPUTED AT THE RATE OF $100 A DAY FOR EACH DAY OF VIOLATION OR

  $1,000, WHICHEVER IS HIGHER, 

     (B) PUNITIVE DAMAGES; AND 

     (C) A REASONABLY ATTORNEY'S FEE AND OTHER LITIGATION COSTS
REASONABLY INCURRED.  A GOOD FAITH RELIANCE ON A COURT ORDER OR
LEGISLATIVE AUTHORIZATION SHALL CONSTITUTE A COMPLETE DEFENSE TO ANY
CIVIL OR CRIMINAL ACTION BROUGHT UNDER THIS CHAPTER OR UNDER ANY OTHER
LAW. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE REHNQUIST JOIN, CONCURRING IN PART AND
DISSENTING IN PART. 

I AGREE WITH THE MAJORITY THAT THE AUTHORIZATION BY THE EXECUTIVE
ASSISTANT TO THE ATTORNEY GENERAL OF THE APPLICATION FOR THE OCTOBER 16
INTERCEPTION ORDER CONTRAVENED 18 U.S.C. 2516(1) AND THAT THE STATUTORY
REMEDY IS SUPPRESSION OF ALL EVIDENCE DERIVED FROM INTERCEPTIONS MADE
UNDER THAT ORDER.  I THEREFORE JOIN PARTS I, II, AND III OF THE OPINION
OF THE COURT.  FOR THE REASONS STATED BELOW, HOWEVER, I DISSENT FROM
THE COURT'S CONCLUSION, STATED IN PART IV OF ITS OPINION, THAT EVIDENCE
OBTAINED UNDER THE "PEN REGISTER"  /1/  EXTENSION ORDERS AND UNDER THE
NOVEMBER 6 EXTENSION OF THE INTERCEPTION ORDER MUST ALSO BE
SUPPRESSED. 

THESE ARE THE PERTINENT FACTS.  ON OCTOBER 8, 1970, THE CHIEF JUDGE
OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
AUTHORIZED THE USE OF A PEN REGISTER DEVICE TO MONITOR AND RECORD FOR A
14-DAY PERIOD ALL NUMBERS DIALED FROM A TELEPHONE LISTED TO RESPONDENT
GIORDANO.  THERE IS NO DISPUTE THAT THE PEN REGISTER ORDER WAS BASED ON
PROBABLE CAUSE AND WAS THEREFORE LAWFUL UNDER THE FOURTH AMENDMENT.  ON
OCTOBER 16, 1970, THE DISTRICT COURT ISSUED AN ORDER AUTHORIZING THE
INTERCEPTION OF WIRE COMMUNICATIONS TO AND FROM GIORDANO'S TELEPHONE
FOR A PERIOD NOT TO EXCEED 21 DAYS.  THERE IS LIKEWISE NO DISPUTE THAT
THE WIRETAP ORDER WAS BASED ON PROBABLE CAUSE.  THE DEFECT IN THE
APPLICAITON FOR THIS ORDER WAS NOT THE STRENGTH OF THE GOVERNMENT'S
SHOWING ON THE MERITS OF ITS REQUEST BUT THE AUTHORIZATION OF THE
APPLICATION BY THE EXECUTIVE ASSISTANT TO THE ATTORNEY GENERAL RATHER
THAN BY ONE OF THE OFFICIALS SPECIFICALLY DESIGNATED IN 18 U.S.C.
2516(1).  AS A RESULT OF THIS PROCEDURAL IRREGULARITY BOTH THE CONTENTS
OF COMMUNICATIONS INTERCEPTED UNDER THE OCTOBER 16 WIRETAP ORDER AND
ANY "EVIDENCE DERIVED THEREFROM" MUST BE SUPPRESSED.  18 U.S.C. 2515
AND 2518(10)(A). 

THE AUTHROIZATION FOR USE OF THE PEN REGISTER DEVICE WAS EXTENDED BY
ORDERS DATED OCTOBER 22 AND NOVEMBER 6, 1970.  ON THE LATTER DATE THE
DISTRICT COURT ALSO EXTENDED THE INTERCEPT AUTHROITY FOR A MAXIMUM
ADDITIONAL PERIOD OF 15 DAYS.  ALL THREE EXTENSION ORDERS WERE BASED IN
PART, BUT ONLY IN PART, ON EVIDENCE OBTAINED UNDER THE INVALID WIRETAP
ORDER OF OCTOBER 16.  THE WIRETAP EXTENSION ORDER, UNLIKE THE ORIGINAL
INTERCEPT ORDER, WAS NOT MARRED BY THE DEFECT OF IMPROPER
AUTHROIZATION. 

THE GOVERNMENT CONTENDS THAT, PUTTING ASIDE ALL EVIDENCE DERIVED
FROM THE INVALID ORIGINAL WIRETAP ORDER, THE INDEPENDENT AND UNTAINTED
EVIDENCE SUBMITTED TO THE DISTRICT COURT CONSTITUTED PROBABLE CAUSE FOR
ISSUANCE OF BOTH PEN REGISTER EXTENSION ORDERS AND THE WIRETAP
EXTENSION ORDER, AND IN THE LATTER CASE ALSO SATISFIED THE ADDITIONAL
REQUIREMENTS IMPOSED BY 18 U.S.C. 2518(3).  /2/  PREOCCUPIED WITH THE
LARGER ISSUES IN THE CASE, THE DISTRICT COURT SUMMARILY DISMISSED THIS
CONTENTION INSOFAR AS IT RELATED TO THE PEN REGISTER EXTENSION ORDERS: 

     "THE SUBSEQUENT EXTENSION ORDERS ARE NOT SUPPORTED BY SHOWING

SUFFICIENT SHOWINGS OF PROBABLE CAUSE, HOWEVER, FOR THE REASON

  THAT INFORMATION WAS USED TO OBTAIN THOSE EXTENSION ORDERS FROM A

  TITLE III WIRETAP WHICH, FOR REASONS APPEARING LATER IN THIS

  OPINION, WAS DEFECTIVE.  THE 'FRUIT OF THE POISONOUS TREE'

  DOCTRINE REQUIRES THE SUPPRESSION OF ALL PEN REGISTER INFORMATION

  OBTAINED UNDER THE SUBSEQUENT ORDERS.  NARDONE V. UNITED STATES,

  308 U.S. 338 . . . (1939); 18 U.S.C. 2518(10)(A)."  340 F. SUPP.

  1033, 1041 (MD. 1972). 

THE COURT OF APPEALS DID NOT MENTION THE POINT.  469 F.2D 522 (CA4
1972). 

WITH RESPECT TO THE WIRETAP EXTENSION, NEITHER THE DISTRICT COURT
NOR THE COURT OF APPEALS ADDRESSED THE GOVERNMENT'S CONTENTION THAT
COMMUNICATIONS INTERCEPTED UNDER THE EXTENSION WERE DERIVATIVELY
TAINTED BY THE IMPROPER AUTHORIZATION DEFECT IN THE ORIGINAL WIRETAP
ORDER, AND NEITHER COURT MADE ANY FINDING ON THIS CONTENTION.  THE
DISTRICT COURT SIMPLY FOUND THE WIRETAP EXTENSION ORDER INVALID ON A
DIFFERENT GROUND APPLICABLE BOTH TO THE EXTENSION AND TO THE ORIGINAL
ORDER.  SPECIFICALLY, THE COURT CONCLUDED THAT THE ORIGINAL WIRETAP
ORDER WAS UNLAWFUL BECAUSE THE APPLICATION FOR IT MISIDENTIFIED THE
APPROVING OFFICER AND THEREFORE FAILED TO COMPLY STRICTLY WITH THE
PROVISIONS OF 18 U.S.C. 2518(1)(A) AND (4)(D).  THE MISIDENTIFICATION
PROBLEM OCCURRED IN THE APPLICATION FOR THE WIRETAP EXTENSION.  THE
DISTRICT COURT HELD THE EXTENSION ORDER INVALID ON THAT BASIS ALONE AND
ORDERED THE EVIDENCE PURSUANT THERETO SUPPRESSED FOR THAT REASON.  /3/
THE COURT OF APPEALS AFFIRMED ON A DIFFERENT GROUNE ENTIRELY.  IT HELD
THE ORIGINAL ORDER INVALID BECAUSE THE APPLICATION FOR IT HAD BEEN
APPROVED BY THE EXECUTIVE ASSISTANT TO THE ATTORNEY GENERAL RATHER THAN
BY ONE OF THE OFFICIALS DESIGNATED IN 18 U.S.C. 2516(1).  THE DEFECT OF
IMPROPER AUTHORIZATION, UNLIKE THE MISIDENTIFICATION PROBLEM, AROSE
ONLY IN CONNECTION WITH THE ORIGINAL WIRETAP ORDER.  PERHAPS THROUGH
SIMPLE OVERSIGHT, THE COURT OF APPELAS FAILED TO CONSIDER THE FATE OF
THE EVIDENCE OBTAINED UNDER THE EXTENSION.  THUS NEITHER OF THE LOWER
COURTS RULED ON THE DERIVIATIVE EVIDENCE QUESTION. 

TODAY WE AFFIRM THE SUPPRESSION OF EVIDENCE OBTAINED UNDER THE
ORIGINAL WIRETAP ORDER FOR THE SAME REASON ADOPTED BY THE COURT OF
APPEALS--THE DEFECT OF IMPROPER AUTHROIZATION.  AS NOTED ABOVE, THIS
DEFECT DID NOT OCCUR IN THE APPLICATION FOR THE WIRETAP EXTENSION
ORDER.  TODAY WE ALSO HOLD THAT MISIDENTIFICATION OF THE APPROVING
AUTHORITY DOES NOT RENDER INADMISSIBLE EVIDENCE OBTAINED PURSUANT TO A
RESULTING INTERCEPTION ORDER.  UNITED STATES V. CHAVEZ, POST, P. 562. 
THIS DECISION REMOVES THE SOLE BASIS ADVANCED BY THE DISTRICT COURT FOR
SUPPRESSING THE TELEPHONE CONVERSATIONS INTERCEPTED UNDER THE WIRETAP
EXTENSION ORDER AND REQUIRES US TO CONSIDER WHETHER THAT EVIDENCE
SHOULD BE SUPPRESSED BY REASON OF THE IMPROPER AUTHORIZATION OF THE
APPLICATION FOR THE ORIGINAL ORDER.  IN DOING SO IT IS IMPORTANT TO
NOTE THAT WE ARE THE FIRST COURT TO CONSIDER THIS ASPECT OF THE CASE. 
THE MAJORITY HOLDS THAT THE INVALIDITY OF THE ORIGINAL WIRETAP ORDER
REQUIRES SUPPRESSION OF ALL EVIDENCE OBTAINED UNDER THE THREE EXTENSION
ORDERS.  IN MY VIEW THE APPLICATION TO THIS CASE OF WELL-ESTABLISHED
PRINCIPLES, PRINCIPLES DEVELOPED BY THE COURTS TO EFFECTUATE
CONSTITUTIONAL GUARANTEES AND ADOPTED BY CONGRESS TO EFFECTUATE THE
STATUTORY GUARANTEES OF TITLE III, DEMONSTRATES THAT THE MAJORITY'S
CONCLUSION IS ERROR.  AS WILL APPEAR, THE SAME ANALYSIS GOVERNS ALL
THREE EXTENSION ORDERS, BUT IT MAY CLARIFY MY POSITION TO DEAL WITH THE
TWO PEN REGISTER EXTENSION ORDERS IN PART I, BELOW, AND TO REVERSE
DISCUSSION OF THE NOVEMBER 6 EXTENSION OF THE WIRETAP FOR PART II.

 I 

THE INSTALLATION OF A PEN REGISTER DEVICE TO MONITOR RECORD THE
NUMBERS DIALED FROM A PARTICULAR TELEPHONE LINE IS NOT GOVERNED BY
TITLE III.  THIS WAS THE CONCLUSION OF THE DISTRICT COURT IN THE
INSTANT CASE AND OF THE COURTS IN UNITED STATES V. KING, 335 F. SUPP.
523, 548 - 549 (SD CAL. 1971), AND IN UNITED STATES V. VEGA, 52 F.R.D.
503, 507 (EDNY 1971).  THIS CONCLUSION RESTS ON THE FACT THAT THE
DEVICE DOES NOT HEAR SOUND AND THEREOFRE DOES NOT ACCOMPLISH ANY
"INTERCEPTION" OF WIRE COMMUNICATIONS AS THAT TERM IS DEFINED BY 18
U.S.C. 2510(4)--"THE AURAL ACQUISTION OF THE CONTENTS OF ANY WIRE OR
ORAL COMMUNICATION THROUGH THE USE OF ANY ELECTRONIC, MECHANICAL, OR
OTHER DEVICE" (EMPHASIS ADDED).  ANY DOUBT OF THE CORRECTNESS OF THIS
INTERPRETATION IS ALLAYED BY REFERENCE TO THE LEGISLATIVE HISTORY OF
TITLE III.  THE REPORT OF THE SENATE COMMITTEE ON THE JUDICIARY IN
DISCUSSING THE SCOPE OF THE STATUTE EXLICITLY STATES "(THE USE OF A
'PEN REGISTER,' FOR EXAMPLE, FOR EXAMPLE, WOULD BE PERMISSIBLE."  S.
REP. NO. 1097, 90TH CONG., 2D SESS., 90 (1968). 

BECAUSE A PEN REGISTER DEVICE IS NOT SUBJECT TO THE PROVISIONS OF
TITLE III, THE PERMISSIBILITY OF ITS USE BY LAW ENFORCEMENT AUTHORITIES
DEPENDES ENTIRELY ON COMPLIANCE WITH THE CONSTITUTIONAL REQUIREMENTS OF
THE FOURTH AMENDMENT.  /4/  IN THIS CASE THE GOVERNMENT SECURED A COURT
ORDER, THE EQUIVALENT FOR THIS PURPOSE OF A SEARCH WARRANT, FOR EACH OF
THE TWO EXTENSIONS OF ITS AUTHORIZATION TO USE A PEN REGISTER.  THE
DISTRICT COURT SEEMED TO ASSUME THAT BECAUSE THESE EXTENSION ORDERS
WERE BASED IN PART ON TAINTED EVIDENCE, INFORMATION OBTAINED PURSUANT
THERETO MUST NECESSARILY BE SUPPRESSED UNDER THE "FRUIT OF THE
POISONOUS TREE" DOCTRINE.  340 F. SUPP., AT 1041.  THAT IS NOT THE
LAW. 

THE DISTRICT COURT RELIED ON NARDONE V. UNITED STATES, 308 U.S. 338
(1939).  IN THAT DECISION THE COURT HELD THAT A STATUTORY PROHIBITION
OF UNLAWFULLY OBTAINED EVIDENCE ENCOMPASSED DERIVATIVE EVIDENCE AS
WELL.  BUT THE COURT ALSO REAFFIRMED THAT THE CONNECTION BETWEEN
UNLAWFUL ACTIVITY AND EVIDENCE OFFERED AT TRIAL MAY BECOME "SO
ATTENUATED AS TO DISSIPATE THAT TAINT."  ID., AT 341, AND THAT FACTS
IMPROPERLY OBTAINED MAY NEVERTHELESS BE PROVED IF KNOWLEDGE OF THEM IS
BASED ON AN INDEPENDENT SOURCE.  IBID.  IN ITS CONSTITUTIONAL ASPECT,
THE PRINCIPLE IS ILLUSTRATED BY WONG SUN V. UNITED STATES, 371 U.S. 471
(1963).  IT IS, IN ESSENCE, THAT THE DERIVATIVE TAINT OF ILLEGAL
ACTIVITY DOES NOT EXTEND TO THE ENDS OF THE EARTH BUT ONLY UNTIL IT IS
DISSIPATED BY AN INTERVENING EVENT.  OF COURSE, THE PRESENCE OF AN
INDEPENDENT SOURCE WOULD ALWAYS SUFFICE. 

THE INDEPENDENT-SOURCE RULE HAS AS MUCH VITALITY IN THE CONTEXT OF A
SEARCH WARRANT AS IN ANY OTHER.  THUS, FOR EXAMPLE, UNLAWFULLY
DISCOVERED FACTS MAY SERVE AS THE BASIS FOR A VALID SEARCH WARRANT IF
KNOWLEDGE OF THEM IS OBTAINED FROM AN INDEPENDENT AND LAWFUL SOURCE. 
SEE, E. G., ANDERSON V. UNITED STATES, 344 F.2D 792 (CA10 1965).  THE
OBVIOUS AND WELL-ESTABLISHED COROLLARY IS THAT THE INCLUSION IN AN
AFFIDAVIT OF INDISPUTABLY TAINTED WARRANT INVALID.  THE ULTIMATE
INQUIRY ON A MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO A WARRANT
IS NOT WHETHER THE UNDERLYING AFFIDAVIT CONTAINED ALLEGATIONS BASED ON
ILLEGALLY OBTAINED EVIDENCE, BUT WHETHER, PUTTING ASIDE ALL TAINTED
ALLEGATIONS, THE INDEPENDENT AND LAWFUL INFORMATION STATED IN THE
AFFIDAVIT SUFFICES TO SHOW PROBABLE CAUSE.  JAMES V. UNITED STATES, 135
U.S. APP. D.C. 314, 315, 418 F.2D 1150, 1151 (1969); UNITED STATES
STERLING, 369 F.2D 799, 802 (CA3 1966); UNITED STATES V. TARRANT, 460
F.2D 701, 703 - 704 (CA5 1972); UNITED STATES V. KOONCE, 485 F.2D 374,
379 (CA8 1973F HOWELL V. CUPP, 427 F.2D 36, 38 (CA9 1970); CHIN KAY V.
UNITED STATES, 311 F.2D 317, 321 (CA9 1962).  /5/  JUDGE WEINFELD APTLY
STATED THE POINT IN UNITED STATES V. EPSTEIN, 240 F. SUPP. 8O (SDNY
1965): 

"THERE IS AUTHORITY, AND NONE TO THE CONTRARY, THAT WHEN A WARRANT
ISSUES UPON AS AFFIDAVIT CONTAINING BOTH PROPER AND IMPROPER GROUNDS,
AND THE PROPER GROUNDS--CONSIDERED ALONE--ARE MORE THAN SUFFICIENT TO
SUPPORT A FINDING OF PROBABLE CAUSE, INCLUSION OF THE IMPROPER GROUNDS
DOES NOT VITIATE THE ENTIRE AFFIDAVIT AND INVALIDATE THE WARRANT." 
ID., AT 82.  I KNOW OF NO PRECEDENT HOLDING TO THE CONTRARY.  /6/ 

THE APPLICATION OF THIS PRINCIPLE TO THE PEN REGISTER EXTENSION
ORDERS IS CLEAR BEYOND DOUBT.  THE ORIGINAL PEN REGISTER ORDER WAS
BASED ON A SHOWING OF PROBABLE CAUSE MADE PRIOR TO, AND THEREFORE
UNDENIABLY INDEPENDENT OF, THE INVALID WIRETAP.  THE AFFIDAVIT
SUPPORTING THE FIRST EXTENSION OF THE PEN REIGSTER ORDER INCORPORATED
THE ALLEGATIONS CONTAINED IN THE AFFIDAVIT SUBMITTED FOR THE ORIGINAL
ORDER AND PROVIDED THE ADDITIONAL UNTAINTED INFORMATION THAT GIORDANO
HAS SOLD HEROIN TO A NARCOTICS AGENT ON OCTOBER 17, 1970.  THE
AFFIDAVIT FOR THE SECOND EXTENSION OF THE PEN REGISTER ORDER IS NOT
INCLUDED IN THE RECORD, BUT THERE IS NO REASON TO DOUBT THAT IT MADE A
SIMILAR INCORPORATION BY REFERENCE OF THE EARLIER, UNTAINTED
ALLEGATIONS.  I WOULD HOLD THE EVIDENCE OBTAINED UNDER THE FIRST PEN
REGISTER EXTENSION ORDER ADMISSIBLE AND REMAND THE CASE FOR
DETERMINATION OF WHETHER EVIDENCE OBTAINED UNDER THE SECOND EXTENSION
SHOULD BE ADMITTED AS WELL. 

THE BASIS FOR THE MAJORITY'S CONCLUSION TO THE CONTRARY IS FAR FROM
APPARENT.  IN THE FINAL FOOTNOTE TO ITS OPINION, THE COURT STATES THAT
THE EVIDENCE OBTAINED UNDER THE DEFECTIVE ORIGINAL WIRETAP ORDER
"SHOULD BE CONSIDERED A CRITICAL ELEMENT IN EXTENDING THE PEN REGISTER
AUTHORITY."  THE MAJORITY DOES NOT SUGGEST, HOWEVER, THAT THE ORIGINAL
PEN REGISTER ORDER WAS BASED ON ANYTHING LESS THAN PROBABLE CAUSE.  NOR
DOES IT DENY THAT THE AFFIDAVIT SUPPORTING THE EXTENSION OF THE PEN
REGISTER AUTHORITY FULLY INCORPORATED THE EARLIER UNTAINTED
ALLEGATIONS.  AND, FINALLY, THE MAJORITY DOES NOT CONTRADICT THE
ESTABLISHED PRINCIPLE THAT A WARRANT BASED ON AN AFFIDAVIT CONTIANING
TAINTED ALLEGATIONS MAY NEVERTHELESS BE VALID IF THE INDEPENDENT AND
LAWFUL INFORMATION STATED IN THE AFFIDAVIT SHOWS PROBABLE CAUSE.  IN
LIGHT OF THESE SIGNIFICANT SILENCES, THE MAJORITY'S BARE ASSERTION THAT
THE TAINTED EVIDENCE OBTAINED UNDER THE ORIGINAL WIRETAP ORDER WAS A
"CRITICAL ELEMENT" IN THE EXTENSION OF THE PEN REGISTER AUTHORITY IS,
TO ME, AN UNEXPLAINED CONCLUSION--NOT A RATIONALE. 

        II 

UNLIKE THE PEN REGISTER EXTENSIONS, THE WIRETAP EXTENSION ORDER OF
NOVEMBER 6 IS GOVERNED BY TITLE III.  THE PROVISIONS OF THAT STATUTE
PRESCRIBE AN ELABORATE PROCEDURE FOR THE LAWFUL INTERCEPTION OF WIRE
COMMUNICATIONS.  TO THE EXTNET THAT THE STATUTORY REQUIREMENTS FOR
ISSUANCE OF AN INTERCEPT ORDER ARE NONCONSTITUTIONAL IN NATURE, THE
EXCLUSIONARY RULE ADOPTED TO EFFECTUATE THE FOURTH AMENDMENT DOES NOT
PERTAIN TO THEIR VIOLATION.  THE STATUTE, HOWEVER, CONTAINS ITS OWN
EXCLUSIONARY RULE, 18 U.S.C. 2518(10)(A), AND THE SCOPE OF THE
SUPPRESSION REMEDY IS DEFINED BY 18 U.S.C. 2515 TO INCLUDE DERIVATIVE
EVIDENCE: 

     "WHENEVER ANY WIRE OR ORAL COMMUNICATION HAS BEEN INTERCEPTED,

  NO PART OF THE CONTENTS OF SUCH COMMUNICATION AND NO EVIDENCE

  DERIVED THEREFROM MAY BE RECEIVED IN EVIDENCE IN ANY TRIAL . . .

  ." 

THE OBVIOUS AND FAMILIAR MODEL FOR THE STATUTORY BAN ON THE USE OF
DERIVATIVE EVIDENCE WAS THE CONSTITUTIONAL DOCTRINE OF THE "FRUIT OF
THE POINSONOUS TREE," AND THE LEGISLATIVE HISTORY CONFIRMS THAT
CONGRESS INTENDED THE PHRASE "NO EVIDENCE DERIVED THEREFROM" TO
INCORPORATE THAT DOCTRINE AND RENDER IT APPLICABLE TO CERTAIN STATUTORY
VIOLATIONS OF NONCONSTITUTIONAL DIMENSIONS.  THE SENATE REPORT MAKES
THE POINT EXPLICITLY: 

"(SECTION 2515) LARGELY REFLECTS EXISTING LAW.  IT APPLIES TO
SUPPRESS EVIDENCE DIRECTLY (NARDONE V. UNITED STATES, 302 U.S. 379
(1937)) OR INDIRECTLY OBTAINED IN VIOLATION OF THE CHAPTER.  (NARDONE
V. UNITED STATES, 308 U.S. 338 (1939).)  THERE IS, HOWEVER, NO
INTENTION TO CHANGE THE ATTENUATION RULE.  SEE NARDONE V. UNITED
STATES, 127 F.2D 521 (2D), CERT. DENIED, 316 U.S. 698 (1942); WONG SUN
V. UNITED STATES, 371 U.S. 471 (1963)."  S. REP. NO. 1097, 90TH CONG.,
2D SESS., 96.  THUS, ALTHOUGH THE VALIDITY OF A WIRETAP ORDER DEPENDS
ON THE SATISFACTION OF CERTIAN STATUTORY CONDITIONS IN ADDITION TO THE
CONSTITUTIONAL REQUIREMENT OF PROBABLE CAUSE, THE PRINCIPLE DEVELOPED
IN PART I OF THIS OPINION IS FULLY APPLICABLE TO THE NOVEMBER 6 WIRETAP
EXTENSION ORDER.  THE QUESTION IS NOT WHETHER THE APPLICATION FOR THAT
ORDER RELIED IN PART ON COMMUNICATIONS INTERCEPTED UNDER THE INVALID
ORIGINAL ORDER BUT WHETHER, PUTTING ASIDE THAT TAINTED EVIDENCE, THE
INDEPENDENT AND LAWFUL INFORMATION STATED IN THE SUPPORTING AFFIDAVIT
SUFFICES TO SHOW BOTH PROBABLE CAUSE AND SATISFACTION OF THE VARIOUS
ADDITIONAL REQUIREMENTS OF TITLE III.  /7/  UNITED STATES V. IANNELLI,
339 F. SUPP. 171 (WD PA. 1972); UNITED STATES V. CERASO, 355 F. SUPP.
126 (MD PA. 1973). 

THE APPLICAITON FOR THE WIRETAP EXTENSION ORDER WAS SUPPORTED BY THE
AFFIDAVIT OF A GROUP SUPERVISOR FROM THE BEREAU OF NARCOTICS AND
DANGEROUS DRUGS.  THE SAME OFFICER HAD SWORN TO ONE OF TWO AFFIDAVITS
SUBMITTED IN SUPPORT OF THE APPLICATION FOR THE ORIGINAL WIRETAP
ORDER.  THE OTHER HAD BEEN FILED BY A NARCOTICS AGENT ACTING UNDER HIS
SUPERVISION AND STATED FACTS WITHIN THEIR JOINT KNOWLEDGE.  IN THE
AFFIDAVIT FOR THE EXTENSION ORDER, THE SUPERVISOR SWORE THAT HE HAD
REVIEWED BOTH OF THE EARLIER AFFIDAVITS, AND HE "REASSERTED) THE FACTS,
DETAILS, AND CONCLUSIONS CONTAINED IN THOSE AFFIDAVITS."  APP. 66. 
THOSE ALLEGATIONS NOT ONLY ESTABLISHED PROBABLE CAUSE TO BELIEVE THAT
GIORDANO WAS ENGAGED IN THE ILLEGAL SALE AND DISTRIBUTION OF NARCOTICS
ON A FAIRLY SUBSTANTIAL SCALE, 18 U.S.C. 2518(3)(A); THEY ALSO
SATISFIED THE ADDITIONAL STATUTORY CRITERIA FOR ISSUANCE OF AN
INTERCEPT ORDER.  THEY SHOWED, FOR EXAMPLE, THAT GIORDANO HAD MADE
NUMEROUS TELEPHONE CALLS TO NUMBERS LISTED TO WELL-KNOWN NARCOTICS
VIOLATORS AND HENCE THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT
COMMUNICATIONS CONCERNING THE ILLEGAL DRUG TRAFFIC WERE TAKING PLACE ON
GIORDANO'S TELEPHONE LINE.  SEE 18 U.S.C. 2518(3)(B) AND (D).  THE
AFFIDAVITS ALSO ESTABLISHED THE INADEQUACY OF ALTERNATIVE INVESTIGATIVE
MEANS AND DEMONSTRATED THAT WITHOUT A WIRETAP OF GIORDANO'S TELEPHONE
THE NARCOTICS AGENTS WOULD BE UNABLE TO DISCOVER HIS SOURCE OF SUPPLY
OR METHOD OF DISTRIBUTION.  SEE 18 U.S.C. 2518(3)(C).  ALL THIS WAS
SHOWN ON THE BASIS OF WHOLLY UNTAINTED EVIDENCE INCORPORATED AND
REAFFIRMED IN THE AFFIDAVIT SUPPORTING THE GOVERNMENT'S REQUEST FOR THE
WIRETAP EXTENSION ORDER. 

THE AFFIDAVIT ALSO PROVIDED ADDITIONAL UNTAINTED INFORMATION TO
SUPPORT THE APPLICATION FOR THE EXTENSION ORDER.  IT SET FORTH, FOR
EXAMPLE, THE CIRCUMSTANCES OF GIORDANO'S SALE OF $3,800 WORTH OF HEROIN
TO AN UNDERCOVER AGENT ON THE DAY FOLLOWING ISSUANCE OF THE ORIGINAL
WIRETAP ORDER.  MOREOVER, IT RECOUNTED IN GREAT DETAIL HIGHLY
SUSPICIOUS CONDUCT OBSERVED BY FEDERAL AGENTS KEEPING GIORDANO UNDER
PHYSICAL SURVEILLANCE.  /8/  LIKE THE ALLEGATIONS INCORPORATED BY
REFERENCE FROM THE EARLIER AFFIDAVITS, THIS ADDITIONAL UNTAINTED
INFORMATION WAS RELEVANT BOTH TO THE CONSTITUTIONAL REQUIREMENT OF
PROBABLE CAUSE AND TO THE VARIOUS STATUTORY CRITERIA FOR ISSUANCE OF AN
INTERCEPT ORDER.  18 U.S.C. 2518(3). 

IN LIGHT OF THE SUBSTANTIALLY AND DETAIL OF THE UNTAINTED
ALLEGATIONS OFFERED IN SUPPORT OF THE APPLICATION FOR THE WIRETAP
EXTENSION ORDER, I FIND NO BASIS FOR THE MAJORITY'S RATHER SUMMARY
CONCLUSION THAT THE COMMUNICATIONS INTERCEPTED UNDER THAT EXTENSION
ORDER WERE DERIVATIVELY TAINTED BY THE IMPROPER AUTHORIZATION OF THE
APPLICATION FOR THE ORIGINAL WIRETAP ORDER.  BECAUSE NEITHER THE
DISTRICT COURT NOR THE COURT OF APPEALS HAS CONSIDERED THIS QUESTION, I
WOULD REMAND THE CASE WITH INSTRUCTIONS THAT THE ISSUE BE SETTLED IN
ACCORD WITH THE PRINCIPLES SET FORTH IN THIS OPINION. 

/1/  A PEN REGISTER IS A MECHANICAL DEVICE ATTACHED TO A GIVEN
TELEPHONE LINE AND USUALLY INSTALLED AT A CENTRAL TELEPHONE FACILITY. 
IT RECORDS ON A PAPER TAPE ALL NUMBERS DIALED FROM THAT LINE.  IT DOES
NOT IDENTIFY THE TELEPHONE NUMBERS FROM WHICH INCOMING CALLS
ORIGINATED, NOR DOES IT REVEAL WHETHER ANY CALL, EITHER INCOMING OR
OUTGOING, WAS COMPLETED.  ITS USE DOES NOT INVOLVE ANY MONITORING OF
TELEPHONE CONVERSATIONS.  THE MECHANICAL COMPLEXITIES OF A PEN REGISTER
ARE EXPLICATED IN THE OPINION OF THE DISTRICT COURT.  340 F. SUPP.
1033, 1038 - 1041 (MD. 1972). 

/2/  UNDER 18 U.S.C. 2518(3), THE COURT IS REQUIRED TO MAKE THE
FOLLOWING DETERMINATIONS: 

"(A) THERE IS PROBABLE CAUSE FOR BELIEF THAT AN INDIVIDUAL IS
COMMITTING, HAS COMMITTED, OR IS ABOUT TO COMMIT A PARTICULAR OFFENSE
ENUMERATED IN SECTION 2516 OF THIS CHAPTER; 

"(B) THERE IS PROBABLE CAUSE FOR BELIEF THAT PARTICULAR
COMMUNICATIONS CONCERNING THAT OFFENSE WILL BE OBTAINED THROUGH SUCH
INTERCEPTION;     "(C) NORMAL INVESTIGATIVE PROCEDURES HAVE BEEN TRIED
AND HAVE FAILED OR REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED
OR TO BE TOO DANGEROUS; 

"(D) THERE IS PROBABLE CAUSE FOR BELIEF THAT THE FACILITIES FROM
WHICH, OR THE PLACE WHERE, THE WIRE OR ORAL COMMUNICATIONS ARE TO BE
INTERCEPTED ARE BEING USED, OR ARE ABOUT TO BE USED, IN CONNECTION WITH
THE COMMISSION OF SUCH OFFENSE, OR ARE LEASED TO, LISTED IN THE NAME
OF, OR COMMONLY USED BY SUCH PERSON." 

/3/  IMMEDIATELY AFTER STATING ITS CONCLUSION THAT THE
MISIDENTIFICATION PROBLEM REQUIRED SUPPRESSION, THE DISTRICT COURT MADE
ITS SOLE REFERENCE TO THE NOVEMBER 6 EXTENSION ORDER: 

"THE APPLICATION AND ORDER RELATING TO THE EXTENSION OF THE WIRETAP
ARE DEFECTIVE FOR THE SAME REASONS AS THE ORIGINAL APPLICATION AND
ORDER."  340 F. SUPP., AT 1060.  PLAINLY, THIS REFERENCE TO THE "SAME
REASONS" CONCERNS THE FAILURE TO COMPLY LITERALLY WITH 2518(1)(A) AND
(4)(D) IDENTIFICATION REQUIREMENTS AND HAS NOTHING TO DO WITH ANY
DERIVATIVE-EVIDENCE RULE. 

/4/  THE GOVERNMENT SUGGESTS THAT THE USE OF A PEN REGISTER MAY NOT
CONSTITUTE A SEARCH WITHIN THE MEANING OF THE FOURTH AMENDMENT.  I NEED
NOT ADDRESS THIS QUESTION, FOR IN MY VIEW THE CONSTITUTIONAL GUARANTEE,
ASSUMING ITS APPLICABILITY, WAS SATISFIED IN THIS CASE. 

/5/  ALL OF THE CASES CITED ARE DIRECTLY ON POINT.  THERE ARE A FEW
ADDITIONAL DECISIONS THAT INDIRECTLY SUPPORT THE GENERAL PROPOSITION
STATED ABOVE.  UNITED STATES V. CANTOR, 470 F.2D 890 (CA3 1972),
INVOLVED A DEFENDANT'S CLAIM THAT THE GOVERNMENT VIOLATED HIS FOURTH
AMENDMENT RIGHTS BY REFUSING TO DISCLOSE TO HIM CERTAIN EVIDENCE THAT
HAD BEEN USED TO ESTABLISH PROBABLE CAUSE FOR ISSUANCE OF A WARRANT. 
THE COURT REJECTED THAT CLAIM ON THE GROUND THAT THERE WAS ADEQUATE
INDEPENDENT JUSTIFICATION TO FIND PROBABLE CAUSE.  ID., AT 893.  THE
CASES OF UNITED STATES V. JONES, 475 F.2D 723 (CA5 1973), AND UNITED
STATES V. UPSHAW, 448 F.2D 1218 (CA5 1971), STAND FOR THE PROPOSITION
THAT THE VALIDITY OF A SEARCH WARRANT BASED IN PART ON ERRONEOUS
STATEMENTS IS DETERMINED BY EVALUATING THE SUFFICIENCY OF THE OTHER
ALLEGATIONS.  FINALLY, UNITED STATES V. LUCARZ, 430 F.2D 1051 (CA9
1970), INVOLVED A SEARCH WARRANT BASED ON AN AFFIDAVIT CONTAINING TWO
PARAGRAPHS THAT INVITED THE MAGISTRATE TO FIND PROBABLE CAUSE BY
DRAWING A NEGATIVE INFERENCE FROM THE DEFENDANT'S EXERCISE OF HIS
CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF COUNSEL.  THE COURT HELD THAT
THE VALIDITY OF THE WARRANT WAS TO BE DETERMINED ON THE BASIS OF THE
OTHER ALLEGATIONS IN THE AFFIDAVIT. 

/6/  IN FACT, THERE ARE ONLY TWO CASES LENDING EVEN COLORABLE
SUPPORT TO A CONTRARY VIEW.  BOTH ARE FROM THE SIXTH CIRCUIT, AND
NEITHER CAN BE SAID TO CONTRADICT THE GENERAL PROPOSITION STATED
ABOVE.  IN UNITED STATES V. LANGLEY, 466 F.2D 27 (1972), THE COURT
CONSIDERED THE VALIDITY OF A WARRANT ISSUED ON THE BASIS OF INFORMATION
OBTAINED IN A PREVIOUS WARRANTLESS SEARCH.  THE COURT HELD THE PRIOR
SEARCH VALID IN LARGE PART AND AFFIMED THE VALIDITY OF THE WARRANT FOR
THE SECOND SEARCH DESPITE THE INCLUSION IN THE AFFIDAVIT OF ALLEGATIONS
BASED ON THE UNLAWFUL ASPECTS OF THE FIRST SEARCH.  ALTHOUGH THE CASE
THEREFORE ILLUSTRATES THE PRINCIPLE STATED ABOVE, THE COURT ADDED THE
FOLLOWING COMMENT: "IT MUST BE EMPHSIZED THAT WHERE SUCH TAINTED
INFORMATION COMPRISES MORE THAN A VERY MINOR PORTION OF THAT FOUND IN
AN AFFIDAVIT SUPPORTING A WARRANT TO SEARCH, THE WARRANT MUST BE
INVALID."  ID., AT 35 (EMPHASIS IN ORIGINAL).  THE OTHER CASE IS UNITED
STATES V. NELSON, 459 F.2D 884 (1972), WHERE THE AFFIDAVIT FOR A SEARCH
WARRANT RELIED ON INFORMATION DERIVED FROM TWO PRIOR WARRANTLESS
SEARCHES.  ALTHOUGH THE COURT SUGGESTED SEVERAL REASONS FOR SUPPRESSING
THE EVIDENCE SEIZED PURSUANT TO THE WARRANT, THE PRINCIPAL BASIS SEEMS
TO HAVE BEEN THE FINDING THAT THE UNTAINTED ALLEGATIONS DID NOT
CONSTITUTE PROBABLE CAUSE.  THUS NEITHER CASE CONTRADICTS THE DECISIONS
OF THE DISTRICT OF COLUMBIA, THIRD, FIFTH, EIGTH, AND NINTH CIRCUITS
CITED IN THE TEXT. 

/7/  THE MAJORITY SEEMS TO BELIEVE THAT THIS PRINCIPLE, WHILE FULLY
APPLICABLE TO ORIGINAL WIRETAP ORDERS, IS WHOLLY INAPPLICABLE TO
EXTENSION ORDERS.  THIS, AT LEAST, IS THE MOST REASONABLE CONSTRUCTION
OF THE MAJORITY'S DISCUSSION OF 2518(1)(E) AND (F).  ANTE, AT 532 -
533.  THOSE PROVISIONS REQUIRE THAT AN APPLICATION FOR AN EXTENSION
ORDER INCLUDE "A FULL AND COMPLETE STATEMENT OF THE FACTS CONCERNING
ALL PREVIOUS APPLICAITONS" AND "A STATEMENT SETTING FORTH THE RESULTS
THUS FAR OBTAINED FORM THE INTERCEPTION . . . ."  ACCORDING TO THE
MAJORITY, THE FACT THAT LAW ENFORCEMENT AUTHORITIES COMPLIED WITH
2518(1)(E) AND (F) BY INCLUDING IN THE APPLICATION FOR THE EXTENSION
ORDER INFORMATION REGARDING THE EARLIER WIRETAP NECESSARILY AND
AUTOMATICALLY RENDERED THE EXTENSION ORDER INVALID, REGARDLESS OF
WHETHER THE INDEPENDENT AND UNTAINTED INFORMATION IN THE APPLICATION
FOR THE EXTENSION SATISFIED THE REQUIREMENTS OF THE FOURTH AMENDMENT
AND 2518(3). 

WITH ALL RESPECT, I FIND THIS A BAFFLING INTERPRETATION OF THE
STATUTE.  CERTAINLY THERE IS NOTHING IN THE LANGUAGE HISTORY OF
2518(1)(E) AND (F) TO SUGGEST THAT CONGRESS INTENDED THESE PROVISIONS
TO EXCEPT ALL EXTENSION ORDERS FROM THE INDEPENDENT-SOURCE DOCTRINE. 
NOR IS THERE ANY SUGGESTION IN THE LANGUAGE OR HISTORY OF 2515, WHICH
IS THE STATUTORY ANALOGUE TO THE CONSTITUTIONAL DOCTRINE OF THE FRUIT
OF THE POISONOUS TREE, THAT CONGRESS INTENDED TO DISTINGUISH BETWEEN
ORIGINAL WIRETAP ORDERS AND EXTENSION ORDERS IN DETERMINING THE EXTENT
OF THE SUPPRESSION REMEDY.  FINALLY, THERE IS NOTHING IN LOGIC TO
INDICATE WHY CONGRESS WOULD HAVE WANTED TO MAKE SUCH A DISTINCTION, AND
THERE IS NO BASIS IN REASON TO SUPPOSE THAT CONGRESS, IF IT HAD
INTENDED SUCH A RESULT, WOULD HAVE FAILED TO LEAVE ANY EVIDENCE OF THAT
INTENT. 

/8/  THE DETAILED INFORMATION LAWFULLY OBTAINED THROUGH SURVEILLANCE
AND UNDERCOVER WORK WAS APTLY SUMMARIZED IN PARAGRAPH 77 OF THE
AFFIDAVIT SUPPORTING THE EXTENSION ORDER: 

"GIORDANO EXHIBITS THE CHARACTERISTICS OF A HIGH-LEVEL NARCOTICS
TRAFFICKER--EXTREME CAUTION.  WHEN TRAVELLING, HE CONTINUALLY USES
VARIOUS COUNTER-SURVEILLANCE TECHNIQUES.  IN HIS TRANSACTIONS, HE
LIMITS HIS CONTRACTS TO A SMALL NUMBER OF TRUSTED INDIVIDUALS."  APP.
81. 

SOLICITOR GENERLA BORK ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL PETERSON, HARRIET S.
SHAPIRO, AND SIDNEY M. GLAZER. 

H. RUSSEL SMOUSE ARGUED THE CAUSE FOR RESPONDENTS AND FILED A BRIEF
FOR RESPONDENT GIORDANO. 
..END :




UNITED STATES V. CHAVEZ, 416 U.S. 562 


       UNITED STATES V. CHAVEZ ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

        NO. 72 - 1319.  ARGUED JANUARY 8, 1974--DECIDED MAY 13,

           1974; (478 F.2D 512, AFFIRMED IN PART, REVERSED IN PART,

           AND REMANDED.) 


    UNDER TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS

  ACT OF 1968 EACH APPLICATION FOR A COURT ORDER AUTHORIZING THE

  INTERCEPTION OF A WIRE OR ORAL COMMUNICATION, 18 U.S.C. 2518

  (4)(D), MUST IDENTIFY THE OFFICER AUTHORIZING THE APPLICAITON,

  AND THE ATTORNEY GENERAL, OR AN ASSISTANT ATTORNEY GENERAL

  SPECIALLY DESIGNATED BY HIM, MAY AUTHORIZE THE APPLICATION, 18

  U.S.C. 2516(1).  THE CONTENTS OF INTERCEPTED COMMUNICATIONS, OR

  EVIDENCE DERIVED THEREFROM, MAY NOT BE RECEIVED IN EVIDENCE AT A

  TRIAL IF THE DISCLOSURE OF THE INFORMATION WOULD BE "IN VIOLATION

  OF" TITLE III, 18 U.S.C. 2515, AND MAY BE SUPPRESSED ON THE

  GROUNDS, INTER ALIA, THAT THE COMMUNICATION WAS "UNLAWFULLY

  INTERCEPTED,"  18 U.S.C. 2518(10)(A)(I), OR THAT THE INTERCEPTION

  ORDER WAS "INSUFFICIENT ON ITS FACE,"  18 U.S.C.

  2518(10)(A)(II).  IN THIS CASE THE APPLICATIONS AND ORDERS TO

  WIRETAP THE TELEPHONES OF RESPONDENTS CHAVEZ AND FERNANDEZ, TWO

  NARCOTIC OFFENSE SUSPECTS, INCORRECTLY IDENTIFIED AN ASSISTANT

  ATTORNEY GENERAL AS THE OFFICIAL AUTHORIZING THE APPLICATIONS,

  WHEREAS WITH RESPECT TO CHAVEZ IT HAD BEEN THE ATTORNEY GENERAL

  AND WITH RESPECT TO FERNANDEZ THE ATTORNEY GENERAL'S EXECUTIVE

  ASSISTANT.  AFTER CHAVEZ, FERNANDEZ, THE OTHER RESPONDENT'S

MOTIONS, HELD THAT THE EVIDENCE SECURED THROUGH BOTH WIRETAPS HAD

  TO BE SUPPRESSED FOR FAILURE OF THE APPLICATIONS OR ORDERS TO

  IDENTIFY THE INDIVIDUAL WHO ACTUALLY AUTHORIZED THE APPLICATION,

  AND FURTHER AS TO THE FERNANDEZ WIRETAP BECAUSE NEITHER THE

  ATTORNEY GENERAL NOR A SPECIALLY DESIGNATED ASSISTANT ATTORNEY

  GENERAL AUTHORIZED THE APPLICATION.  THE COURT OF APPEALS

  AFFIRMED IN ALL RESPECTS.  HELD: 

     1.  BECAUSE THE APPLICATION FOR THE INTERCEPTION ORDER ON THE

  FERNANDEZ PHONE WAS AUTHORIZED BY THE ATTORNEY GENERAL'S

  EXECUTIVE ASSISTANT, RATHER THAN BY THE ATTORNEY GENERAL OR ANY

  SPECIALLY DESIGNATED ASSISTANT ATTORNEY GENERAL, ON WHOM ALONE

  2516(1) CONFERS SUCH POWER, EVIDENCE SECURED UNDER THAT ORDER WAS

  PROPERLY SUPPRESSED.  UNITED STATES V. GIORDANO, ANTE, P. 505. 

  PP. 569 - 570. 

     2.  MISIDENTIFYING THE ASSISTANT ATTORNEY GENERAL AS THE

  OFFICIAL AUTHORIZING THE CHAVEZ WIRETAP, WHEN THE ATTORNEY

  GENERAL HIMSELF ACTUALLY GAVE THE APPROVAL, WAS IN NO SENSE THE

  OMISSION OF A REQUIREMENT THAT MUST BE SATISFIED IF WIRETAPPING

  OR ELECTRONIC SURVEILLANCE IS TO BE LAWFUL UNDER TITLE III, AND

  HENCE DOES NOT REQUIRE SUPPRESSION OF THE WIRETAP EVIDENCE. 

  UNITED STATES V. GIORDANO, SUPRA, DISTINGUISHED.  PP. 571 - 572. 

     (B) THE INTERCEPTION ORDER WAS NOT "INSUFFICIENT ON ITS FACE"

  WITHIN THE MEANING OF 2518(10)(A)(II), SINCE THE ORDER CLEARLY

  IDENTIFIED "ON ITS FACE" THE ASSISTANT ATTORNEY GENERAL AS THE

  PERSON AUTHORIZING THE APPLICATION, HE BEING A PERSON WHO UNDER

  2516(1) COULD PROPERLY GIVE SUCH APPROVAL IF SPECIALLY DESIGNATED

  TO DO SO AS THE ORDER RECITED, NOTWITHSTANDING THIS WAS

  SUBSEQUENTLY SHOWN TO BE INCORRECT.  PP. 573 - 574. 

     (C) THE MISIDENTIFICATION OF THE OFFICER AUTHORIZING THE

  WIRETAP APPLICATION DID NOT AFFECT THE FULFILLMENT OF ANY OF THE

  REVIEWING OR APPROVAL FUNCTIONS REQUIRED BY CONGRESS, AND, BY

ITSELF, 

     DOES NOT RENDER THE INTERCEPTION CONDUCTED UNDER THE ORDER

  "UNLAWFUL" WITHIN THE MEANING OF 2518(10)(A)(I) OR THE DISCLOSURE

  OF THE CONTENT OF THE INTERCEPTIONS, OR DERIVATIVE EVIDENCE,

  OTHERWISE "IN VIOLATION OF" TITLE III WITHIN THE MEANING OF 2515,

  THERE BEING NO LEGISLATIVE HISTORY CONCERNING 2518(1)(A) AND

  (4)(D) TO SUGGEST THAT THEY WERE MEANT, BY THEMSELVES, TO OCCUPY

  A CENTRAL, OR EVEN FUNCTIONAL, ROLE IN GUARDING AGAINST

  UNWARRANTED USE OF WIRETAPPING OR ELECTRONIC SURVEILLANCE.  PP.

  574 - 580. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER

  C. J., AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 

  DOUGLAS, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING

  IN PART, IN WHICH BRENNAN, STEWART, AND MARSHALL, JJ., JOINED,

  POST, P. 580. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE UNITED STATES V. GIORDANO, ANTE, P. 505, CONCERNS
THE VALIDITY OF PROCEDURES FOLLOWED BY THE JUSTICE DEPARTMENT IN
OBTAINING JUDICIAL APPROVAL TO INTERCEPT WIRE COMMUNICATIONS UNDER
TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, 82
STAT. 211 - 225, 1, U.S.C. 2510 - 2520, AND THE PROPRIETY OF
SUPPRESSING EVIDENCE GATHERED FROM COURT-AUTHORIZED WIRETAPS WHERE THE
STATUTORY APPLICATION PROCEDURES HAVE NOT BEEN FULLY SATISFIED.  AS IS
MORE FULLY DESCRIBED IN GIORDANO, TITLE III LIMITS WHO, AMONG FEDERAL
OFFICIALS, MAY APPROVE SUBMISSION OR A WIRETAP APPLICAITON TO THE
APPROPRIATE DISTRICT COURT, TO THE ATTORNEY GENERAL, OR AS ASSISTANT
ATTORNEY GENERAL HE SPECIALLY DESIGNATES, 18 U.S.C. 2516(1), AND
DELINEATES THE INFORMATION EACH APPLICATION MUST CONTAIN, UPON WHAT
FINDINGS AN INTERCEPTION ORDER MAY BE GRANTED, AND WHAT THE ORDER SHALL
SPECIFY, 18 U.S.C. 2518(1), (3), (4).  /1/  WITHIN THIS GENERAL
FRAMEWORK, TWO STATUTORY REQUIREMENTS ARE OF PARTICULAR RELEVANCE TO
THIS CASE.  SECTION 2518(1)(A) PROVIDES THAT EACH APPLICATION FOR A
COURT ORDER AUTHORIZING OR APPROVING THE INTERCEPTION OF A WIRE OR ORAL
COMMUNICATION SHALL INCLUDE, AMONG OTHER INFORMATION, "THE IDENTITY OF
THE . . . OFFICER AUTHORIZING THE APPLICATION."  SIMILARLY, 2518(4)(D)
PROVIDES THAT THE ORDER OF AUTHORIZATION OR APPROVAL ITSELF SHALL
SPECIFY, IN PART, "THE IDENTITY OF . . . THE PERSON AUTHORIZING THE
APPLICATION."  THE SPECIFIC QUESTION FOR ADJUDICATION HERE, WHICH IT
WAS UNNECESSARY TO RESOLVE IN GIORDANO, IS WHETHER, WHEN THE ATTORNEY
GENREAL HAS IN FACT AUTHROIZED THE APPLICATION TO BE MADE, BUT THE
APPLICATION AND THE COURT ORDER INCORRECTLY IDENTIFY AN ASSISTANT
ATTORNEY GENERAL AS THE AUTHORIZING OFFICIAL, EVIDENCE OBTAINED UNDER
THE ORDER MUST BE SUPPRESSED.  WE HOLD THAT TITLE III DOES NOT MANDATE
SUPPRESSION UNDER THESE CIRCUMSTANCES. 

    I 

RESPONDENTS WERE ALL INDICTED FOR CONSPIRACY TO IMPORT AND
DISTRIBUTE HEROIN IN VIOLATION OF 21 U.S.C. 173, 174 (1964 ED.).  IN
ADDITION, RESPONDENT UMBERTO CHAVEZ WAS SEPARATELY CHARGED UNDER 18
U.S.C. 1952 WITH USING AND CAUSING OTHERS TO USE A TELEPHONE BETWEEN
CALIFORNIA AND MEXICO, AND PERFORMING OTHER ACTS, IN ORDER TO
FACILITATE UNLAWFUL NARCOTICS ACTIVITY, AND RESPONDENT JAMES FERNANDEZ
WAS CHARGED UNDER 1952 WITH TRAVELING BETWEEN CALIFORNIA AND MEXICO,
AND PERFORMING OTHER ACTS, FOR THE SAME PURPOSE.  UPON NOTIFICATION
THAT THE GOVERNMENT INTENDED TO INTRODUCE EVIDENCE OBTAINED FROM
WIRETAPS OF CHAVEZ' AND FERNANDEZ' PHONES AT TRIAL, RESPONDENTS FILED
MOTIONS TO SUPPRESS, CHALLENGING THE LEGALITY OF THE JUSTICE
DEPARTMENT'S APPLICAITON PROCEDURES LEADING TO THE ISSUANCE BY THE
DISTRICT COURT OF THE TWO ORDERS PERMITTING THE WIRE INTERCEPTIONS. 
AFFIDAVITS FILED IN OPPOSITION BY THE FORMER ATTORNEY GENERAL AND HIS
EXECUTIVE ASSISTANT REPRESENTED THAT THE APPLICATION SUBMITTED FOR THE
FEBRUARY 1,, 1971, ORDER AUTHORIZING INTERCEPTION OF WIRE
COMMUNICATIONS TO AND FORM THE CHAVEZ PHONE HAD BEEN PERSONALLY
APPROVED BY THE ATTORNEY GENERAL, WHEREAS THE APPLICATION FOR THE
FEBRUARY 25, 1971, ORDER TO INTERCEPT COMMUNICATIONS TO AND FROM THE
FERNANDEZ PHONE HAD BEEN APPROVED BY HIS EXECUTIVE ASSISTANT AT A TIME
WHEN THE ATTORNEY GENERAL WAS UNAVAILABLE, AND PURSUANT TO AN
UNDERSTANDING THAT THE EXECUTIVE ASSISTANT, APPLYING THE ATTORNEY
GENERAL'S STANDARDS AS HE UNDERSTOOD THEM, COULD ACT FOR THE ATTORNEY
GENERAL IN SUCH CIRCUMSTANCES. 

EACH APPLICATION TO THE COURT HAD RECITED, HOWEVER, THAT THE
ATTORNEY GENERAL, PURSUANT TO 18 U.S.C. 2516, HAD "SPECIALLY
DESIGNATED" THE ASSISTANT ATTORNEY GENERAL FOR THE CRIMINAL DIVISION,
WILL WILSON, "TO AUTHORIZE (THE APPLICANT ATTORNEY) TO MAKE THIS
APPLICATION FOR AN ORDER AUTHORIZING THE INTERCEPTION OF WIRE
COMMUNICATIONS."  MOREOVER, APPENDED TO EACH APPLICATION WAS A FORM
LETTER, ADDRESSED TO THE ATTORNEY MAKING THE APPLICATION AND
PURPORTEDLY SIGNED BY WILL WILSON, STATING THAT THE SIGNER HAD REVIEWED
THE ATTORNEY'S REQUEST FOR AUTHORIZATION TO APPLY FOR A WIRETAP ORDER
PURSUANT TO 18 U.S.C. 2518 AND HAD MADE THE REQUISITE PROBABLE-CAUSE
AND OTHER STATUTORY DETERMINATIONS FROM THE "FACTS AND CIRCUMSTANCES
DETAILED" IN THE REQUEST, AND THAT "YOU ARE HEREBY AUTHORIZED UNDER THE
POWER SPECIALLY DELEGATED TO ME IN THIS PROCEEDING BY THE ATTORNEY
GENERAL . . . , PURSUANT TO THE POWER CONFERRED ON HIM BY SECTION 2516
. . . TO MAKE APPLICATION" FOR A WIRE INTERCEPTION ORDER. 
CORRESPONDINGLY, THE DISTRICT COURT'S INTERCEPT ORDER IN EACH CASE
DECLARED THAT COURT APPROVAL WAS GIVEN "PURSUANT TO THE APPLICATION
AUTHORIZED BY . . . WILL WILSON, WHO HAD BEEN SPECIALLY DESIGNATED IN
THIS PROCEEDING BY THE ATTORNEY GENERAL . . . JOHN N. MITCHELL, TO
EXERCISE THE POWERS CONFERRED ON THE ATTORNEY GENERAL" BY 2516. 

THE DISCREPANCY BETWEEN WHO HAD ACTUALLY AUTHORIZED THE RESPECTIVE
APPLICATIONS TO BE MADE, AND THE INFORMATION TRANSMITTED TO THE
DISTRICT COURT CLEARLY INDICATING THAT ASSISTANT ATTORNEY GENERAL WILL
WILSON WAS THE AUTHORIZING OFFICIAL, WAS EXPLAINED AS THE RESULT OF A
STANDARD PROCEDURE FOLLOWED WITHIN THE JUSTICE DEPARTMENT.  WHILE THE
ATTORNEY GENERAL HAD APPARENTLY REFRAINED FROM DESIGNATING ANY
ASSISTANT ATTORNEY GENERAL TO EXERCISE THE AUTHORIZATION POWER UNDER
2516(1), FORM MEMORANDA WERE ROUTINELY SENT FROM HIS OFFICE, OVER HIS
INITIALS, TO ASSISTANT ATTORNEY GENERAL WILSON, STATING THAT "WITH
REGARD TO YOUR RECOMMENDATION THAT AUTHORIZATION BE GIVEN" TO MAKE
APPLICATION FOR A COURT ORDER PERMITTING WIRE INTERCEPTION, "YOU ARE
HEREBY SPECIALLY DESIGNATED" TO EXERCISE THE POWER CONFERRED ON THE
ATTORNEY GENERAL BY 2516 "FOR THE PURPOSE OF AUTHORIZING"  THE
APPLICANT ATTORNEY TO APPLY FOR A WIRETAP ORDER.  EVIDENTLY, THIS FORM
WAS INTENDED TO REFLECT NOTICE OF APPROVAL BY THE ATTORNEY GENERAL,
THOUGH ON ITS FACE IT SUGGESTED THAT THE DECISION WHETHER TO AUTHORIZE
THE PARTICULAR WIRETAP APPLICATION WOULD BE MADE BY ASSISTANT ATTORNEY
GENERAL WILSON.  IN FACT, AS REVEALED BY THE AFFIDAVITS OF WILSON'S
THEN DEPUTY ASSISTANTS FILED IN OPPOSITION TO RESPONDENTS' SUPPRESSION
MOTIONS, "WILSON DID NOT EXAMINE THE FILES OR EXPRESSLY AUTHORIZE THE
APPLICATIONS" FOR EITHER THE FEBRUARY 18 OR FEBRYUARY 25 INTERCEPTION
ORDERS, AND THEY SIGNED HIS NAME "IN ACCORDANCE WITH (HIS)
AUTHORIZATION . . . AND THE STANDARD PROCEDURES OF THE CRIMINAL
DIVISON" TO THE RESPECTIVE LETTERS OF AUTHORIZATION TO THE APPLICANT
ATTORNEY, WHICH WERE MADE EXHIBITS TO THE APPLICATIONS.  THE SIGNING OF
WILSON'S NAME WAS REGARDED AS A "MINISTERIAL ACT" BECAUSE OF WILSON'S
AUTHORIZATION TO HIS DEPUTIES "TO SIGN HIS NAME TO AND DISPATCH SUCH A
LETTER OF AUTHORIZATION IN EVERY INSTANCE IN WHICH THE REQUEST HAD BEEN
FAVORABLY ACTED UPON IN THE OFFICE OF THE ATTORNEY GENERAL." 

THE DISTRICT COURT HELD THAT THE EVIDENCE SECURED THROUGH BOTH
WIRETAPS HAD TO BE SUPPRESSED FOR FAILURE OF EITHER OF THE INDIVIDUALS
WHO ACTUALLY AUTHORIZED THE APPLICATIONS TO BE "IDENTIFIED TO CHIEF
JUDGE CARTER, CONGRESS OR THE PUBLIC" IN THE APPLICATION OR ORDERS, AS
MANDATED BY 2518(1)(A) AND (4)(D), RESPECTIVELY, MOREOVER, EVIDENCE
OBTAINED UNDER THE FEBRUARY 25 WIRETAP ORDER ON THE HERNANDEZ PHONE WAS
SEPARATELY SUPPRESSED, BECAUSE THE GOVERNMENT ADMITTED THAT "NEITHER
THE ATTORNEY GENERAL NOR A SPECIALLY DESIGNATED ASSISTANT ATTORNEY
GENERAL EVER AUTHORIZED THE APPLICATION,"  AS 2516(1) REQUIRES. 

THE COURT OF APPEALS AFFIRMED IN ALL RESPECTS.  478 F.2D 512.  WITH
RESPECT TO THE CHAVEZ TAP, THE COURT OF APPEALS ASSUMED, AS HAD THE
DISTRICT COURT, THAT THE ATTORNEY GENERAL HAD PERSONALLY APPROVED THE
REQUEST FOR AUTHORITY TO APPLY FOR THE INTERCEPTION ORDER, AS HIS
AFFIDAVIT STATED.  NONETHELESS, THE MISIDENTIFICATION OF ASSISTANT
ATTORNEY GENERAL WILSON AS THE AUTHORIZING OFFICIAL WAS DEEMED TO BE A
"MISREPRESENTATION" AND AN "APPARENTLY DELIBERATE DECEPTION OF THE
COURTS BY THE HIGHEST LAW OFFICERS IN THE LAND," ID., AT 515, 517 WHICH
REQUIRED SUPPRESSION OF EVIDENCE GATHERED FROM THE TAP FOR FAILURE TO
COMPLY WITH 18 U.S.C. 2518(1)(A) AND (4)(D).  CONGRESS WAS HELD TO HAVE
"INTENDED TO ELIMINATE ANY POSSIBILITY THAT THE AUTHORIZATION OF
WIRETAPP APPLICATIONS WOULD BE INSTITUTIONAL DECISIONS," AND THE COURT
OF APPEALS WAS FEARFUL THAT IF THE MISIDENTIFICATION WHICH OCCURERED IN
THIS CASE WERE APPROVED, "THERE WOULD BE NOTHING TO PREVENT FUTURE
ATTORNEYS GENERAL FROM REMAINING SILENT IF A PARTICULAR WIRETAP PROVED
EMBARRASSING."  478 F.2D, AT 516. 

WE GRANTED CERTIORARI, 412 U.S. 905, TO RESOLVE THE CONFLICT BETWEEN
THE POSITION TAKEN BY THE NINTH CIRCUIT IN THIS CASE ON THE ISSUE OF
SUPPRESSION BECAUSE OF INACCURATE INDENTIFICATION OF THE OFFICER
AUTHORIZING THE APPLICATION AND THE POSITION TAKEN BY EVERY OTHER
CIRCUIT THAT HAS CONSIDERED THE QUESTION.  /2/  WE AGREE WITH THOSE
OTHER COURTS OF APPEALS THAT MISIDENTIFYING THE ASSISTANT ATTORNEY
GENERAL AS THE OFFICIAL AUTHORIZING THE WIRETAP APPLICATION TO BE MADE
DOES NOT REQUIRE SUPPRESSION OF WIRETAP EVIDENCE WHEN THE ATTORNEY
GENERAL HIMSELF HAS ACTUALLY GIVEN THE APPROVAL; HENCE, WE REVERSE THAT
PORTION OF THE JUDGMENT SUPPRESSING THE CHAVEZ WIRETAP EVIDENCE, AND
REMAND FOR FURTHER PROCEEDINGS TO PERMIT THE DISTRICT COURT TO ADDRESS
OTHER CHALLENGES TO THE CHAVEZ WIRETAP EVIDENCE WHICH RESPONDENTS HAD
MADE BUT THE DISTRICT COURT DID NOT FIND IT NECESSARY TO CONSIDER.  /3/
BECAUSE THE APPLICATION FOR THE INTERCEPTION ORDER ON THE FERNANDEZ
PHONE WAS AUTHORIZED BY THE ATTORNEY GENERAL'S EXECUTIVE ASSISTANT,
RATHER THAN BY THE ATTORNEY GENERAL OR ANY SPECIALLY DESIGNATED
ASSISTANT ATTORNEY GENERAL, ON WHOM ALONE 18 U.S.C. 2516(1) CONFERS
SUCH POWER, EVIDENCE SECURED UNDER THAT ORDER WAS PROPERLY SUPPRESSED
FOR THE REASONS STATED IN THE OPINION FILED TODAY IN UNITED STATES V.
GIORDANO, ANTE, P. 505.  ACCORDINGLY, THAT PORTION OF THE JUDGMENT
SUPPRESSING THE FERNANDEZ WIRETAP EVIDENCE WAS AFFIRMED. 

        II 

THE APPLICATION AND ORDER FOR THE CHAVEZ WIRETAP DID NOT CORRECTLY
IDENTIFY THE INDIVIDUAL AUTHORIZING THE APPLICATION, AS 18 U.S.C.
2518(1)(A) AND (4)(D) REQUIRE.  OF THIS THERE IS NO DOUBT.  BUT IT DOES
NOT FOLLOW THAT BECAUSE OF THIS DEFICIENCY IN REPORTING, EVIDENCE
OBTAINED PURSUANT TO THE ORDER MAY NOT BE USED AT A TRIAL OR
RESPONDENTS.  THERE IS NO CLAIM OF ANY CONSTITUTIONAL INFIRMITY ARISING
FROM THIS DEFECT, NOR WOULD THERE BE ANY MERIT TO SUCH A CLAIM, AND WE
MUST LOOK TO THE STATUTORY SCHEME TO DETERMINE IF CONGRESS HAS PROVIDED
THAT SUPPRESSION IS REQUIRED FOR THIS PARTICULAR PROCEDURAL ERROR. 

ORAL CPOMMUNICATION, AND ANY DERIVATIVE EVIDENCE, MAY NOT BE USED AT A
CRIMINAL TRIAL, OR IN CERTAIN OTHER PROCEEDINGS, "IF THE DISCLOSURE OF
THAT INFORMATION WOULD BE IN VIOLATION OF THIS CHAPTER."  AGGRIEVED
PERSONS MAY MOVE, IN A TIMELY MANNER UNDER 2518(10)(A), TO SUPPRESS THE
USE OF SUCH EVIDENCE AT TRIAL ON THE GROUNDS THAT: 

    "(I) THE COMMUNICATION WAS UNLAWFULLY INTERCEPTED; 

   "(II) THE ORDER OF AUTHORIZATION OR APPROVAL UNDER WHICH IT WAS

  INTERCEPTED IS INSUFFICIENT ON ITS FACE; OR 

      "(III) THE INTERCEPTION WAS NOT MADE IN CONFORMITY WITH THE

  ORDER OF AUTHORIZATION OR APPROVAL." 

IN UNITED STATES V. GIORDANO, SUPRA, WE HAVE CONCLUDED THAT CONGRESS,
IN 18 U.S.C. 2516(1), MADE PRELIMINARY APPROVAL OF SUBMISSION OF
WIRETAP APPLICATIONS A CENTRAL SAFEGUARD IN PREVENTING ABUSE OF THIS
MEANS OF INVESTIGATIVE SURVEILLANCE, AND INTENTIONALLY RESTRICTED THE
CATEGORY OF FEDERAL OFFICIALS WHO COULD GIVE SUCH APPROVAL TO ONLY THE
ATTORNEY GENERAL HIMSELF OR ANY ASSISTANT ATTORNEY GENERAL HE MIGHT
SPECIALLY DESIGNATE FOR THAT PURPOSE.  HENCE, FAILURE TO SECURE
APPROVAL OF ONE OF THESE SPECIFIED INDIVIDUALS PRIOR TO MAKING
APPLICATION FOR JUDICIAL AUTHORITY TO WIRETAP RENDERS THE COURT
AUTHORITY INVALID AND THE INTERCEPTION OF COMMUNICATIONS PURSUANT TO
THAT AUTHORITY "UNLAWFUL" WITHIN THE MEANING OF 18 U.S.C.
2518(10)(A)(I).  FAILURE TO CORRECTLY REPORT THE IDENTITY OF THE PERSON
AUTHORIZING THE APPLICATION, HOWEVER, WHEN IN FACT THE ATTORNEY GENERAL
HAS GIVEN THE REQUIRED PRELIMINARY APPROVAL TO SUBMIT THE APPLICATION,
DOES NOT REPRESENT A SIMILAR FAILURE TO FOLLOW TITLE III'S PRECAUTIONS
AGAINST THE UNWARRANTED USE OF WIRETAPPING OR ELECTRONIC SURVEILLANCE
AND DOES NOT WARRANT THE SUPPRESSION OF EVIDENCE GATHERED PURSUANT TO A
COURT ORDER RESTING UPON THE APPLICATIN. 

THERE IS LITTLE QUESTION THAT 2518(1)(A) AND (4)(D) WERE INTENDED TO
MAKE CLEAR WHO BORE THE RESPONSIBILITY FOR APPROVAL OF THE SUBMISSION
OF A PARTICULAR WIRETAP APPLICATION.  THUS, THE SENATE REPORT
ACCOMPANYING THE FAVORABLE RECOMMENDATION OF TITLE III STATES THAT 2518
(1)(A) "REQUIRES THE IDENTITY OF THE PERSON WHO MAKES, AND THE PERSON
WHO AUTHORIZED THE APPLICATION(,) TO BE SET OUT.  THIS FIXES
RESPONSIBILITY."  S. REP. NO. 1097, 90TH CONG., 2D SESS., 101 (1968). 
AND 2518(4)(D) "REQUIRES THAT THE ORDER NOTE THE AGENCY AUTHORIZED TO
MAKE THE INTERCEPTION AND THE PERSON WHO AUTHORIZED THE APPLICATION SO
THAT RESPONSIBILITY WILL BE FIXED."  ID., AT 103.  WHERE IT IS
ESTABLISHED THAT RESPONSIBILITY FOR APPROVAL OF THE APPLICATION IS
FIXED IN THE ATTORNEY GENERAL, HOWEVER, COMPLIANCE WITH THE SCREENING
REQUIREMENTS OF TITLE III IS ASSURED, AND THERE IS NO JUSTIFICATION FOR
SUPPRESSION. 

RESPONDENTS SUGGEST THAT THE MISIDENTIFICAITON OF ASSISTANT ATTORNEY
GENERAL WILSON AS THE AUTHORIZING OFFICIAL WAS CALCULATED TO MISLEAD
THE DISTRICT JUDGE IN CONSIDERING THE WIRE INTERCEPTION APPLICATIONS,
AND CERTIANLY HAD THE EFFECT OF MISLEADING HIM, SINCE THE INTERCEPTION
ORDER ALSO MISIDENTIFIED THE AUTHORIZING OFFICIAL IN RELIANCE ON THE
STATEMENTS MADE IN THE APPLICATION.  WE DO NOT PERCEIVE ANY PURPOSE TO
BE SERVED BY DELIBERATE MISREPRESENTATION BY THE GOVERNMENT IN THESE
CIRCUMSTANCES.  TO THE CONTRARY, WE THINK IT CANNOT BE SREIOUSLY
CONTENDED THAT HAD THE ATTORNEY GENERAL BEEN IDENTIFIED AS THE PERSON
AUTHORIZING THE APPLICATION, RATHER THAN HIS SUBORDINATE, ASSISTANT
ATTORNEY GENERAL WILSON, THE DISTRICT JUDGE WOULD HAVE HAD ANY GREATER
HESITATION IN ISSUING THE INTERCEPTION ORDER.  THE SAME COULD NOT BE
SAID, OF COURSE, IF, AS IN GIORDANO, THE CORRECT INFORMATION HAD
REVEALED THAT NONE OF THE INDIVIDUALS IN WHOM CONGRESS REPOSED THE
RESPONSIBILITY FOR AUTHORIZING INTERCEPTION APPLICATION HAD SATISFIED
THIS PRELIMINARY STEP.  THE DISTRICT COURT UNDOUBTEDLY THOUGHT THAT
WILSON HAD APPROVED THE CHAVEZ AND FERNANDEZ WIRETAP APPLICATIONS, AND
WE DO NOT CONDONE THE JUSTICE DEPARTMENT'S FAILURE TO COMPLY IN FULL
WITH THE REPORTING PROCEDURES CONGRESS HAS ESTABLISHED TO ASSURE THAT
ITS MORE SUBSTANTIVE SAFEGUARDS ARE FOLLOWED.  /4/  BUT WE CANNOT SAY
THAT MISIDENTIFICATION WAS IN ANY SENSE THE OMISSION OF A REQUIREMENT
THAT MUST BE SATISFIED IF WIRETAPPING OR ELECTRONIC SURVEILLANCE IS TO
BE LAWFUL UNDER TITLE III. 

NEITHER THE DISTRICT COURT NOR THE COURT OF APPEALS MADE CLEAR WHICH
OF THE GROUNDS SET FORTH IN 2518 (10(A) WAS RELIED UPON TO SUPPRESS THE
CHAVEZ WIRETAP EVIDENCE.  RESPONDENTS RELY ON EACH OF THE FIRST TWO
GROUNDS, I. E., THAT THE COMMUNICATIONS WERE "UNLAWFULLY INTERCEPTED"
AND THAT THE CHAVEZ INTERCEPTION ORDER IS "INSUFFICIENT ON ITS FACE." 
SUPPORT FOR THE LATTER CLAIM IS DRAWN FROM THE DISTRICT COURT DECISION
IN UNITED STATES V. FOCARILE, 340 F. SUPP. 1033, 1057 - 1060 (MD.),
AFF'D ON OTHER GROUNDS SUB NOM. UNITED STATES V. GIORDANO, 469 F.2D 522
(CA4 1972), AFF'D, ANTE, P. 505, WHICH CONCLUDED THAT AN ORDER
INCORRECTLY IDENTIFYING WHO AUTHORIZED THE APPLICATION IS EQUIVALENT TO
AN ORDER FAILING TO IDENTIFY ANYONE AT ALL AS THE AUTHORIZING
OFFICIAL.  WE FIND NEITHER OF THESE CONTENTIONS PERSUASIVE. 

HERE, THE INTERCEPTION ORDER CLEARLY IDENTIFIED "ON ITS FACE"
ASSISTANT ATTORNEY GENERAL WILSON AS THE PERSON WHO AUTHORIZED THE
APPLICATION TO BE MADE.  UNDER 2516(1), HE PROPERLY COULD GIVE SUCH
APPROVAL HAD HE BEEN SPECIALLY DESIGNATED TO DO SO BY THE ATTORNEY
GENERAL, AS THE ORDER RECITED.  THAT THIS HAS SUBSEQUENTLY BEEN SHOWN
TO BE INCORRECT DOES NOT DETRACT FROM THE FACIAL SUFFICIENCY OF THE
ORDER.  /5/  MOREOVER, EVEN IF WE WERE TO LOOK BEHIND THE ORDER DESPITE
THE CLEAR "ON ITS FACE" LANGUAGE OF 2518(10)(A)(II), IT APPEARS THAT
THE ATTORNEY GENERAL AUTHORIZED THE APPLICATION, AS HE ALSO HAD THE
POWER TO DO UNDER 2516(1).  IN NO REALISTIC SENSE, THEREFORE, CAN IT BE
SAID THAT THE ORDER FAILED TO IDENTIFY AN AUTHORIZING OFFICIAL WHO
POSSESSED STATUTORY POWER TO APPROVE THE MAKING OF THE APPLICATION. 

THE CLAIM THAT COMMUNICATIONS TO AND FROM THE CHAVEZ PHONE WERE
"UNLAWFULLY INTERCEPTED" IS MORE PLAUSIBLE, BUT DOES NOT PERSUADE US,
GIVEN THE PURPOSES TO BE SERVED BY THE INDENTIFICATION REQUIREMENTS AND
THEIR PLACE IN THE STATUTORY SCHEME OF REGULATION.  THOUGH WE REJECTED,
IN GIORDANO, THE GOVERNMENT'S CLAIM THAT CONGRESS INTENDED "UNLAWFULLY
INTERCEPTED" COMMUNICATIONS TO MEAN ONLY THOSE INTERCEPTED IN VIOLATION
OF CONSTITUTIONAL REQUIREMENTS, WE DID NOT GO TO FAR AS TO SUGGEST THAT
EVERY FAILURE TO COMPLY FULLY WITH ANY REQUIREMENT PROVIDED IN TITLE
III WOULD RENDER THE INTERCEPTION OR WIRE OR ORAL COMMUNICATIONS
"UNLAWFUL."  TO ESTABLISH SUCH A RULE WOULD BE AT ODDS WITH THE STATUTE
ITSELF.  UNDER 2515, SUPPRESSION IS NOT MANDATED FOR EVERY VIOLATION OF
TITLE III, BUT ONLY IF "DISCLOSURE"  OF THE CONTENTS OF INTERCEPTED
COMMUNICATIONS, OR DERIVATIVE EVIDENCE, WOULD BE IN VIOLATION TO TITLE
III.  MOREOVER, AS WE SUGGESTED IN GIORDANO, IT IS APPARENT FROM THE
SCHEME OF THE SECTION THAT PARAGRAPH (I) WAS NOT INTENDED TO REACH
EVERY FAILURE TO FOLLOW STATUTORY PROCEDURES, ELSE PARAGRAPHS (II) AND
(III) WOULD BE DRAINED OF MEANING.  GIORDANO HOLDS THAT PARAGRAPH (I)
DOES INCLUDE ANY "FAILURE TO SATISFY ANY OF THOSE STATUTORY
REQUIREMENTS THAT DIRECTLY AND SUBSTANTIALLY IMPLEMENT THE
CONGRESSIONAL INTENTION TO LIMIT THE USE OF INTERCEPT PROCEDURES TO
THOSE SITUATIONS CLEARLY CALLING FOR THE EMPLOYMENT OF THIS
EXTRAORDINARY INVESTIGATIVE DEVICE."  ANTE, AT 527. 

IN THE PRESENT CASE, THE MISIDENTIFICATION OF THE OFFICER
AUTHORIZING THE WIRETAP APPLICATION DID NOT AFFECT THE FULFILLMENT OF
ANY OF THE REVIEWING OR APPROVAL FUNCTIONS REQUIRED BY CONGRESS AND IS
NOT WITHIN THE REACH OF PARAGRAPHS (II) AND (III).  REQUIRING
IDENTIFICATION OF THE AUTHORIZING OFFICIAL IN THE APPLICATION HAS BEEN
PROPERLY APPROVED UNDER 2516; REQUIRING IDENTIFICATION IN THE COURT'S
ORDER ALSO SERVES TO "FIX RESPONSIBILITY"  FOR THE SOURCE OF
PRELIMINARY APPROVAL.  THIS INFORMATION CONTAINED IN THE APPLICATION
AND ORDER FURTHER AIDS THE JUDGE IN MAKING REPORTS REQUIRED UNDER 18
U.S.C. 2519 /6/  THAT SECTION REQUIRES THE JUDGE WHO ISSUES OR DENIES
AN INTERCEPTION ORDER TO REPORT HIS ACTION AND CERTAIN INFORMATION
ABOUT THE APPLICATION, INCLUDING THE "IDENTITY OF . . . THE PERSON
AUTHORIZING THE APPLICATION,"  WITHIN 30 DAYS, TO THE ADMINISTRATIVE
OFFICE OF THE UNITED STATES COURTS, 2519(1)(F).  AN ANNUAL REPORT OF
THE AUTHORIZING OFFICIALS DESIGNATED IN 2516 MUST ALSO BE FILED WITH
THAT BODY, AND IS TO CONTAIN THE SAME INFORMATION WITH RESPECT TO EACH
APPLICATION MADE AS IS REQUIRED OF THE ISSUING OR DENY JUDGE,
2519(2)(A).  FINALLY, A SUMMARY OF THE INFORMATION FILED BY THE JUDGES
ACTING ON APPLICATION AND THE PROSECUTORS APPROVING THEIR SUBMISSION IS
TO BE FILED WITH CONGRESS IN APRIL OF EACH YEAR BY THE ADMINISTRATIVE
OFFICE, 2519(3).  THE PURPOSE OF THESE REPORTS IS "TO FORM THE BASIS
FOR A PUBLIC EVALUATION" OF THE OPERATION OF TITLE III AND TO "ASSURE
THE COMMUNITY THAT THE SYSTEM OF COURT-ORDERED) ELECTRONIC SURVEILLANCE
. . . IS PROPERLY ADMINISTERED . . . ."  S. REP. NO. 1097, 90TH CONG.,
2D SESS., 107.  WHILE ADHERENCE TO THE IDENTIFICATION REPORTING
REQUIREMENTS OF 2518(1)(A) AND (4)(D) THUS CAN SIMPLIFY THE ASSURANCE
THAT THOSE WHO TITLE III MAKES RESPONSIBLE FOR DETERMINING WHEN AND HOW
WIRETAPPING AND ELECTRONIC SURVEILLANCE SHOULD BE CONDUCTED HAVE
FULFILLED THEIR ROLES IN EACH CASE, IT DOES NOT ESTABLISH A SUBSTANTIVE
ROLE TO BE PLAYED IN THE REGULATORY SYSTEM. 

NOR IS THERE ANY LEGISLATIVE HISTORY CONCERNING THESE SECTIONS, AS
THERE IS, FOR EXAMPLE, CONCERNING 2516(1), SEE UNITED V. GIORDANO,
ANTE, AT 516 ET SEQ., TO SUGGEST THAT THEY WERE MEANT, BY THEMSELVES,
TO OCCUPY A CENTRAL, OR EVEN FUNCTIONAL, ROLE IN GUARDING AGAINST
UNWARRANTED USE OF WIRETAPPING OR ELECTRONIC SURVEILLANCE.  THOUGH
LEGISLATION TO REGULATE THE INTERCEPTION OF WIRE AND ORAL
COMMUNICATIONS HAD BEEN CONSIDERED BY CONGRESS EARLIER, THE PROPOSED
STATUTE DRAFTED FOR THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE APPEARS TO HAVE BEEN THE FIRST PUBLISHED
PROPOSAL TO CONTAIN A REUQIREMENT THAT THE APPLICATION FOR INTERCEPTION
AUTHORITY SHOULD SPECIFY "WHO AUTHORIZED THE APPLICATION."  TASK FORCE
REPORT: ORGANIZED CRIME, APP. C, P. 109, 3803(A)(1) (1967).  THAT
PROPOSED BILL, WHICH WAS SUBSTANTIALLY FOLLOWED IN TITLE III, ALSO
PROVIDED FOR REPORTS LIKE THOSE NOW REQUIRED BY 18 U.S.C. 2519,
INCLUDING INFORMATION ON "THE IDENTITY OF . . . WHO AUTHORIZED THE
APPLICATION."  ID., AT 111, 3804(A)(6) AND (B)(1).  IT DID NOT,
HOWEVER, REQUIRE THE ORDER TO CONTAIN THIS INFORMATION.  ID., AT 110,
3803(E).  S. 675, A BILL INTRODUCED BY SENATOR MCCLELLAN ON JANUARY 25,
1967, AS THE "FEDERAL WIRE INTERCEPTION ACT," 113 CONG. REC. 1491, DID
NOT CONTAIN ANY OF THESE IDENTIFICATION REQUIREMENTS.  HEARINGS ON
CONTROLLING CRIME THROUGH MORE EFFECTIVE LAW ENFORCEMENT BEFORE THE
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF THE SENATE COMMITTEE ON
THE JUDICIARY, 90TH CONG., 1ST SESS., 77 - 78, 8(A), (D), 9(A) (1967). 
S. 2050, HOWEVER, A PROPOSAL BY SENATOR HRUSKA TO REGULATE BOTH
WIRETAPPING AND ELECTRONIC SURVEILLANCE, DID.  SECTION 2518(A)(1)
REQUIRED AN INTERCEPTION APPLICATION TO INCLUDE "THE IDENTITY OF THE
PERSON WHO AUTHORIZED THE APPLICATION," AND 2519(A)(6) AND (B)(1)
PROVIDED THAT JUDGES AND AUTHORIZING PROSECUTORS REPORT "THE IDENTITY
OF . . . WHO AUTHORIZED THE APPLICATION," BUT DID NOT REQUIRE THAT THE
ORDER CONTAIN THIS INFORMATION, 2518(E).  HEARINGS, SUPRA, AT 1006 -
1008.  THE REQUIREMENT THAT THIS INFORMATION BE CONTAINED IN THE ORDER,
AS WELL AS IN THE APPLICATION AND REQUIRED REPORTS, FIRST APPEARED IN
2518 (E)(4) OF H.R. 13482, 90TH CONG., 2D SESS. (1967).  THOUGH THE
HOUSE NEVER REPORTED OUT OF COMMITTEE ANY WIRETAPPING BILL, IT WAS
RETAINED IN S. 917, A COMBINATION OF S. 675 AND S. 2050, WHOSE
PROVISIONS ULTIMATELY WERE ENACTED AS TITLE III.  DESPITE THE
APPEARANCE AND MODIFICATION OF THE IDENTIFICATION REQUIREMENTS DURING
THE LEGISLATIVE PROCESS, HOWEVER, NO REAL DEBATE SURROUNDED THEIR
ADOPTION, AND ONLY THE STATEMENTS IN S. REP. NO. 1097, SUPRA, THAT THEY
WERE DESIGNED TO FIX RESPONSIBILITY, GIVE ANY INDICATION OF THEIR
PURPOSE IN THE OVERALL SCHEME OF TITLE III.  NO ROLE MORE SIGNIFICANT
THAN A REPORTING FUNCTION DESIGNED TO ESTABLISH ON PAPER THAT ONE OF
THE MAJOR PROCEDUREAL PROTECTIONS OF TITLE III HAD BEEN PROPERLY
ACCOMPLISHED IS APPARENT. 

WHEN IT IS CLEARLY ESTABLISHED, THEREFORE, THAT AUTHORIZATION OF
SUBMISSION OF A WIRETAP OR ELECTRONIC SURVEILLANCE APPLICATION HAS BEEN
GIVEN BY THE ATTORNEY GENERAL HIMSELF, BUT THE APPLICATION, AND, AS A
RESULT, THE INTERCEPTION ORDER, INCORRECTLY STATE THAT APPROVAL HAS
INSTEAD BEEN GIVEN BY A SPECIALLY DESINGATED ASSISTANT ATTORNEY
GENERAL, THE MISIDENTIFICATION, BY ITSELF, WILL NOT RENDER
INTERCEPTIONS CONDUCTED UNDER THE ORDER "UNLAWFUL" WITHIN THE MEANING
OF 2518(10)(A)(I) OR THE DISCLOSURE OF THE CONTENTS OF INTERCEPTED
COMMUNICATIONS, OR DERIVATIVE EVIDENCE, OTHERWISE "IN VIOLATION OF"
TITLE III WITHIN THE MEANING OF 2515.  HENCE, THE SUPPRESSION OF THE
CHAVEZ WIRETAP EVIDENCE ON THE BASIS OF THE MISIDENTIFICATION OF
ASSISTANT ATTORNEY GENERAL WILSON AS THE AUTHORIZING OFFICAL WAS IN
ERROR.  THOUGH WE DEEM THIS RESULT TO BE THE CORRECT ONE UNDER THE
SUPPRESSION PROVSIONS OF TITLE III, WE ALSO DEEM IT APPROPRIATE TO
SUGGEST THAT STRICT ADHERENCE BY THE GOVERNMENT TO THE PROVISIONS OF
TITLE III WOULD NONETHELESS BE MORE IN KEEPING WITH THE
RESPONSIBILITIES CONGRESS HAS IMPOSED UPON IT WHEN AUTHORITY TO ENGAGE
IN WIRETAPPING OR ELECTRONIC SURVEILLANCE IS SOUGHT.     THE JUDGMENT
OF THE COURT OF APPEALS IS AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE RELEVANT STATUTORY PROVISIONS ARE SET FORTH IN THE APPENDIX
TO UNITED STATES V. GIORDANO, ANTE, AT 534. 

/2/  IN OTHER INSTANCES WHERE THE ATTORNEY GENERAL HAD PERSONALLY
AUTHORIZED THE APPLICATION, BUT THE APPLICATION AND ORDER ERRONEOUSLY
RECITED APPROVAL BY ASSISTANT ATTORNEY GENERAL WILSON, SUPPRESSION OF
WIRETAP EVIDENCE HAS BEEN DENIED ON THE GROUND OF SUBSTANTIAL
COMPLIANCE WITH TITLE III REQUIREMENTS.  UNITED STATES V. JAMES, __
U.S. APP. D.C. __, __, 494 F.2D 1007, 1017 (1974) ("IMMATERIAL
VARIANCE"); UNITED STATES V. PISACANO, 459 F.2D 259 264 N.5 (CA2 1972)
("DISCREPANCY DID NOT MEANINGFULLY SUBVERT THE CONGRESSIONAL SCHEME");
UNITED STATES V. BECKER, 461 F.2D 230, 235 (CA21972) ("HARMLESS
ERROR"); UNITED STATES V. CERASO, 467 F.2D 647, 652 (CA3 1972
("SUBSEQUENT IDENTIFICATION OF THE AUTHORIZING OFFICER IS
SATISFACTORY"); UNITED STATES V. BOBO, 477 F.2D 974, 985 (CA4 1973)
("SUFFICIENT COMPLIANCE"); UNITED STATES V. COX, 462 F.2D 1293, 1300
(CA8 1972) ("IT IS IRRELEVANT THAT THE APPLICATION AND ORDER RECITED
THE AUTHORIZING OFFICER AS MR. WILSON RATHER THAN MR. MITCHELL").  SEE
ALSO UNITED STATES V. ROBERTS, 477 F.2D 57, 59 (CA7 1973), HOLDING THE
AUTHORIZATION IMPROPER BECAUSE GIVEN BY THE EXECUTIVE ASSISTANT, NOT
THE ATTORNEY GENERAL, BUT SUGGESTING THAT WITH RESPECT TO THE
MISIDENTIFICATION OF ASSISTANT ATTORNEY GENERAL WILSON "WE WOULD NOT BE
INCLINED TO ELEVATE FORM OVER SUBSTANCE TO FIND A VIOLATION OF 18
U.S.C. 2518(1)(A) AND (4)(D) . . . ." 

/3/  THE RECORD DISCLOSES THAT RESPONDENTS ALSO BASED THEIR MOTIONS
TO SUPPRESS THE CHAVEZ WIRETAP EVIDENCE ON THE FAILURE OF THE
GOVERNMENT'S AFFIDAVITS IN SUPPORT OF THE WIRETAP APPLICATION TO
DEMONSTRATE A NEED FOR WIRETAPPING AS OPPOSED TO LESS INTRUSIVE MEANS
OF INVESTIGATION, 18 U.S.C. 2518(1)(C), TO PARTICULARLY DESCRIBE THE
COMMUNICATIONS SOUGHT TO BE INTERCEPTED, 2518(1)(B)(III), TO ALLEGE
FACTS SUFFICIENT TO JUSTIFY THE UNCERTAINITY OF THE TERMINATION DATE
FOR THE INTERCEPTION, 2518(1)(D), OR TO ADEQUATELY SHOW PROBABLE CAUSE
TO SUPPORT THE ORDER, 2518(3); MOREOVER, THE SUFFICIENCY OF THE ORDER'S
DIRECTIVE TO MINIMIZE THE INTERCEPTION OF INNOCENT CONVERSATIONS AND
COMPLIANCE BY THE AGENTS WHO CONDUCTED THE WIRETAP WITH THE ORDER OF
MINIMIZATION, 2518(5), WERE ALSO CHALLENGED.  R. 159 - 197.  NONE OF
THESE QUESTIONS IS BEFORE US NOW, AS NEITHER THE DISTRICT COURT NOR THE
COURT OF APPEALS PASSED ON ANY OF THEM. 

/4/  THE GOVERNMENT ADVISES THAT IN THE SPRING OF 1972 IT REVISED
THE FORM MEMORANDA BY WHICH THE ATTORNEY GENERAL HAS APPROVED
APPLICATIONS FOR WIRETAPPING OR ELECTRONIC SURVEILLANCE AUTHORITY, AND
THE FORM LANGUAGE IN THE LETTERS SENT TO THE APPLYING ATTORNEYS, WHICH
ARE APPENDED TO THE APPLICATIONS FILED IN THE DISTRICT COURTS, TO
ACCURATELY REFLECT THAT APPROVAL WAS OBTAINED FROM THE ATTORNEY
GENERAL, RATHER THAN A SPECIALLY DESIGNATED ASSISTANT, UNLESS THE
LATTER HAPPENS TO BE THE CASE.  BRIEF FOR UNITED STATES IN UNITED
STATES V. GIORDANO 9. 

/5/  RESPONDENTS' ATTEMPT TO ANALOGIZE THE FACIAL INSUFFICIENCY OF A
SEARCH WARRANT SUPPORTED BY AN AFFIDAVIT SUBMITTED UNDER A FALSE NAME
OF THE AFFIANT, A DEFICIENCY WHICH HAS BEEN HELD BY SOME COURTS TO
REQUIRE SUPPRESSION UNDER FED. RULE CRIM. PROC. 41, KING V. UNITED
STATES, 282 F.2D 398 (CA4 1960), OR UNDER THE FOURTH AMENDMENT, UNITED
EX REL. PUGH V. PATE, 401 F.2D 6 (CA7 1968), CERT. DENIED, 394 U.S. 999
(1969), TO ASSERTED FACIAL INSUFFICIENCY OF A WIRE INTERCEPTION ORDER
WHICH INCORRECTLY IDENTIFIES WHO AUTHORIZED THE APPLICATION FOR THE
ORDER, MUST FAIL.  WITHOUT PASSING ON THE SOUNDNESS OF THESE CASES, IT
MUST BE RECALLED THAT THE MISIDENTIFICATION OF THE OFFICER AUTHORIZING
A WIRETAP APPLICATION IS IRRELEVANT TO THE ISSUE OF PROBABLE CAUSE,
WHICH IS SUPPORTED BY THE SEPARATE AFFIDAVITS OF INVESTIGATIVE
OFFICIALS.  SE 18 U.S.C. 2518(1) AND (3).  MOREOVER, NO BASIS IS
PROVIDED IN TITLE III FOR CHALLENGING THE VALIDITY OF THE INTERCEPTION
ORDER DEPENDING ON WHETHER THE APPLICATION WAS APPROVED BY THE ATTORNEY
GENERAL RATHER THAN A SPECIALLY DESIGNATED ASSISTANT. 

/6/  SECTION 2519 PROVIDES IN FULL:  "2519.  REPORTS CONCERNING
INTERCEPTED WIRE OR ORAL COMMUNICATIONS. 

"(1) WITHIN THIRTY DAYS AFTER THE EXPIRATION OF AN ORDER (OR EACH
EXTENSION THEREOF) ENTERED UNDER SECTION 2518, OR THE DENIAL OF AN
ORDER APPROVING AN INTERCEPTION, THE ISSUING OR DENYING JUDGE SHALL
REPORT TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS--' 

"(A) THE FACT THAN AN ORDER OR EXTENSION WAS APPLIED FOR; 

"(B) THE KIND OF ORDER OR EXTENSION APPLIED FOR; 

"(C) THE FACT THAT THE ORDER OR EXTENSION WAS GRANTED AS APPLIED
FOR, WAS MODIFIED, OR WAS DENIED; 

"(D) THE PERIOD OF INTERCEPTIONS AUTHORIZED BY THE ORDER, AND THE
NUMBER AND DURATION OF ANY EXTENSIONS OF THE ORDER; 

"(E) THE OFFENSE SPECIFIED IN THE ORDER OR APPLICATION, OR EXTENSION
OF AN ORDER; 

"(F) THE IDENTITY OF THE APPLYING INVESTIGATIVE OR LAW ENFORCEMENT
OFFICER AND AGENCY MAKING THE APPLICATION AND THE PERSON AUTHORIZING
THE APPLICATION; AND 

"(G) THE NATURE OF THE FACILITIES FORM WHICH OR THE PLACE WHERE
COMMUNICATIONS WERE TO BE INTERCEPTED. 

"(2) IN JANUARY OF EACH YEAR THE ATTORNEY GENERAL, AN ASSISTANT
ATTORNEY GENERAL SPECIALLY DESIGNATED BY THE ATTORNEY GENERAL, OR THE
PRINCIPAL PROSECUTING ATTORNEY OF A STATE, OR THE PRINCIPAL PROSECUTING
ATTORNEY FOR ANY POLITICIAL SUBDIVISION OF A STATE, SHALL REPORT TO THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS--' 

"(A) THE INFORMATION REQUIRED BY PARAGRAPHS (A) THROUGH (G) OF
SUBSECTION (1) OF THIS SECTION WITH RESPECT TO EACH APPLICATION FOR AN
ORDER OR EXTENSION MADE DURING THE PRECEDING CALENDAR YEAR; 

"(B) A GENERAL DESCRIPTION OF THE INTERCEPTIONS MADE UNDER SUCH
ORDER OR EXTENSION, INCLUDING (I) THE APPROXIMATE NATURE AND FREQUENCY
OF INCRIMINATING COMMUNICATIONS INTERCEPTED, (II) THE APPROXIMATE
NATURE AND FREQUENCY OF OTHER COMMUNICATIONS INTERCEPTED, (III) THE
APPROXIMATE NUMBER OF PERSONS WHOSE COMMUNICATIONS WERE INTERCEPTED,
AND (IV) THE APPROXIMATE NATURE, AMOUNT, AND COST OF THE MANPOWER AND
OTHER RESOURCES USED IN THE INTERCEPTIONS; 

"(C) THE NUMBER OF ARRESTS RESULTING FROM INTERCEPTIONS MADE UNDER
SUCH ORDER OR EXTENSION, AND THE OFFENSES FOR WHICH ARRESTS WERE MADE; 

"(D) THE NUMBER OF TRIALS RESULTING FROM SUCH INTERCEPTION; 

"(E) THE NUMBER OF MOTIONS TO SUPPRESS MADE WITH RESPECT TO SUCH
INTERCEPTIONS, AND THE NUMBER GRANTED OR DENIED; 

"(F) THE NUMBER OF CONVICTIONS RESULTING FROM SUCH INTERCEPTIONS AND
THE OFFENSES FOR WHICH THE CONVICTIONS WERE OBTAINED AND A GENERAL
ASSESSMENT OF THE IMPORTANCE OF THE INTERCEPTIONS; AND 

"(G) THE INFORMATION REQUIRED BY PARAGRAPHS (B) THROUGH (F) OF THIS
SUBSECTION WITH RESPECT TO ORDERS OR EXTENSIONS OBTAINED IN A PRECEDING
CALENDAR YEAR. 

"(3) IN APRIL OF EACH YEAR THE DIRECTOR OF THE ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS SHALL TRANSMIT TO THE CONGRESS A FULL AND
COMPLETE REPORT CONCERNING THE NUMBER OF APPLICATIONS FOR ORDERS
AUTHORIZING OR APPROVING THE INTERCEPTION OF WIRE OR ORAL
COMMUNICATIONS AND THE NUMBER OF ORDERS AND EXTENSIONS GRANTED OR
DENIED DURING THE PRECEDING CALENDAR YEAR.  SUCH REPORTS SHALL INCLUDE
A SUMMARY AND ANALYSIS OF THE DATA REQUIRED TO BE FILED WITH THE
ADMINISTRATIVE OFFICE BY SUBSECTION (1) AND (2) OF THIS SECTION.  THE
DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS IS
AUTHORIZED TO ISSUE BINDING REGULATIONS DEALING WITH THE CONTENT AND
FORM OF THE REPORTS REQUIRED TO BE FILED BY SUBSECTIONS (1) AND (2) OF
THIS SECTION." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, AND MR. JUSTICE MARSHALL JOIN, CONCURRING IN PART AND
DISSENTING IN PART IN NO. 72 - 1319, UNITED STATES V. CHAVEZ, AND
CONCURRING IN NO. 72 - 1057, UNITED STATES V. GIORDANO, ANTE, P. 505. 

THE COURT DEALS WITH TWO DIFFERENT JUSTICE DEPARTMENT VIOLATIONS OF
TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968,
WHICH IMPOSES EXPRESS LIMITATIONS ON THE USE OF ELECTRONIC
SURVEILLANCE.  IN UNITED STATES V. GIORDANO THE COURT CORRECTLY FINDS
THAT THE VIOLATION OF 18 U.S.C. 2516(1) IS A VIOLATION OF A STATUTORY
REQUIREMENT WHICH "DIRECTLY AND SUBSTANTIALLY IMPLEMENTS) THE
CONGRESSIONAL INTENTION TO LIMIT THE USE OF INTERCEPT PROCEDURES TO
THOSE SITUATIONS CLEARLY CALLING FOR THE EMPLOYMENT OF THIS
EXTRAORDINARY INVESTIGATIVE DEVICE."  THE COURT ALSO PROPERLY FINDS
THAT A VIOLATION OF SUCH A STATUTORY REQUIREMENT MANDATES SUPPRESSION
OF THE EVIDENCE SEIZED BY THE UNLAWFUL INTERCEPTION.  I JOIN THE
OPINION OF THE COURT IN GIORDANO.  THE SAME VIOLATION OF 2516(1) IS
ALSO INVOLVED IN THE FERNANDEZ WIRETAP IN UNITED STATES V. CHAVEZ, AND
I THEREFORE CONCUR IN THE COURT'S SUPPRESSION OF THE EVIDENCE SEIZED IN
THAT WIRETAP.  IN CHAVEZ, HOWEVER, THE COURT FINDS THAT SUPPRESSION IS
NOT WARRANTED FOR THE VIOLATIONS OF 18 U.S.C. 2518(1)(A) AND 2518
(4)(D) WHICH THE COURT ADMITS OCCURED IN THE CHAVEZ WIRETAP ITSELF.  I
DISSENT FROM THIS CONCLUSION, HEREINAFTER REFERRED TO AS THE HOLDING OF
CHAVEZ. 

        I 

TITLE III PERMITS ELECTRONIC SURVEILLANCE TO BE EMPLOYED ONLY
PRUSUANT TO A COURT OFER.  IT REQUIRES, INTER ALIA, THAT A FEDERAL
TRIAL ATTORNEY DESIRING TO APPLY TO THE DISTRICT COURT FOR SUCH A
WIRETAP ORDER MUST FIRST SECURE AUTHORIZATION FROM ONE OF A GROUP OF
SPECIFIED OFFICIALS IN THE JUSTICE DEPARTMENT.  GIORDANO REPRESENTS A
CLASS OF CASES IN WHICH AUTHORIZATION FOR ELECTRONIC SUREVEILLANCE WAS
GIVEN BY SOL LINDENBAUM, THE EXECUTIVE ASSISTANT TO ATTORNEY GENERAL
JOHN MITCHELL, IN VIOLATION OF THE "AUTHORIZATION REQUIREMENT" OF
2516(1) OF TITLE III.  THIS SECTION PROVIDES THAT A WIRETAP ORDER MAY
BE APPLIED FOR ONLY AFTER AUTHORIZATION BY "(THE ATTORNEY GENERAL, OR
ANY ASSISTANT ATTORNEY GENERAL SPECIALLY DESIGNATED BY THE ATTORNEY
GENERAL."  18 U.S.C. 2516(1).  CHAVEZ, ON THE OTHER HAND, REPRESENTS A
CLASS OF CASES WHERE THE JUSTICE DEPARTMENT VIOLATED THE
"IDENTIFICATION REQUIREMENT" OF 2518(1)(A) OF TITLE III, WHICH REQUIRES
THAT EACH APPLICATION MADE TO THE DISTRICT COURT FOR A WIRETAP ORDER
"SHALL INCLUDE . . . THE IDENTITY OF . . . THE OFFICER AUTHORIZING THE
APPLICATION."  ID., 2518(1)(A).  BECAUSE THE DISTRICT COURTS IN THIS
CLASS OF CASES WERE SUPPLIED WITH MISINFORMATION AS TO THE IDENTITY OF
THE PERSON WHO AUTHORIZED THE APPLICATION MADE TO THEM, THE ORDERS THEY
ENTERED APPROVING THE USE OF ELECTRONIC SURVEILLANCE VIOLATED
2518(4)(D) OF TITLE III, WHICH PROVIDES THAT SUCH ORDERS "SHALL SPECIFY
. . . THE IDENTITY OF . . . THE PERSON AUTHORIZING THE APPLICATION." 
(EMPHASIS ADDED.) 

IN THE JUSTICE DEPARTMENT BETWEEN 1969 AND 1972, A REQUEST FEDERAL
TRIAL ATTORNEY FOR AUTHORIZATION TO APPLY FOR A WIRETAP ORDER WAS
REVIEWED IN THE CRIMINAL DIVISION BEFORE BEING SENT TO ATTORNEY GENERAL
MITCHELL.  ACCORDING TO THE SOLICITOR GENERAL, IN CHAVEZ ATTORNEY
GENERAL MITCHELL MADE THE OPERATIVE DECISION TO AUTHORIZE THE WIRETAP
APPLICATION AND SIGNIFIED THIS BY SENDING A MEMORANDUM TO ASSISTANT
ATTORNEY GENERAL WILL WILSON DIRECTING WILSON TO AUTHORIZE THE TRIAL
ATTORNEY TO SUBMIT THE APPLICATION TO THE DISTRICT COURT.  THE
MEMORANDUM, /1/  THE SOLICITOR GENERAL ADMITS, DOES NOT MAKE CLEAR THAT
THE OPERATIVE DECISION WAS MADE IN THE ATTORNEY GENERAL'S OFFICE;
RATHER, IT INDICATES THAT WILSON HIMSELF WAS DESIGNATED TO REVIEW AND
AUTHORIZE THE APPLICAITON. 

AT THIS POINT, A LETTER OF AUTHORIZATION WAS SENT TO THE TRIAL
ATTORNEY, WHICH CLEARLY IDENTIFIED ASSISTANT ATTORNEY GENERAL WILSON,
AND NOT MITCHELL, AS THE PERSON WHO HAD MADE THE OPERATIVE DECISION TO
AUTHORIZE THE WIRETAP.  /2/  WILSON, HOWEVER, NEITHER SAW NOR
AUTHORIZED THE CHAVEZ WIRETAP APPLICATION OR ANY OTHERS; HIS SIGNATURE
WAS AFFIXED TO THE AUTHORIZATION LETTERS BY A DEPUTY ASSISTANT ATTORNEY
GENERAL, EITHER HAROLD P. SHAPIRO OR HENRY E. PETERSON.  /3/ 

WHEN THE TRIAL ATTORNEY APPLIED FOR A WIRETAP ORDER IN THE DISTRICT
COURT, HE ATTACHED THE LETTER OF AUTHORIZATION PURPORTEDLY SIGNED BY
WILSON, AND NATURALLY MISIDENTIFIED WILSON AS THE PERSON WHO HAD
AUTHORIZED THE APPLICATION TO BE MADE, /4/  IN VIOLATION OF THE
IDENTIFICATION REQUIREMENT OF 2518(1)(A).  AS A RESULT, THE DISTRICT
COURT'S ORDER IDENTIFIED WILSON, AND NOT MITCHELL, AS THE JUSTICE
DEPARTMENT OFFICIAL WHO HAD AUTHORIZED THE TRIAL ATTORNEY TO APPLY FOR
THE CHAVEZ WIRETAP ORDER, /5/  IN VIOLATION OF THE IDENTIFICATION
REQUIREMENT OF 2518 (4)(D). 

IN CHAVEZ, MITCHELL FIRST ACKNOWLEDGED RESPONSIBILITY FOR
AUTHORIZING THE WIRETAP APPLICATION IN AN AFFIDAVIT FILED WITH THE
DISTRICT COURT ONLY AFTER RESPONDENTS HAD MADE A MOTION TO SUPPRESS THE
EVIDENCE IN THE TAP.  SIMILAR AFFIDAVITS STATING THAT MITCHELL HAD
AUTHORIZED THE APPLICATION, RATHER THAN WILSON, WERE FILED BY
LINDENBAUM AND PETERSON.  THE COURTS BELOW, ON THE STRENGTH OF THESE
AFFIDAVITS, HAVE HELD THAT MITCHELL DID IN FACT AUTHORIZE THE
APPLICATION TO BE MADE.  BOTH HOWEVER, ORDERED THE EVIDENCE WHICH WAS
SEIZED BY THE SURVEILLANCE TO BE SUPPRESSED, SINCE THE APPLICATION
MISIDENTIFIED WILSON AS THE RESPONSIBLE OFFICIAL.  THIS COURT REVERSES
THE COURT OF APPEALS. 

        II 

DECIDING A QUESTION NOT REACHED IN GIORDANO, THE COURT IN CHAVEZ
HOLDS THAT SUPPRESSION IS NOT DICTATED WHEN THERE HAS BEEN A VIOLATION
OF A PROVISION OF TITLE III WHICH DOES NOT, IN THE VIEW OF THE COURTS,
"DIRECTLY AND SUBSTANTIALLY IMPLEMENT THE CONGRESSIONAL INTENTION TO
LIMIT THE USE OF INTERCEPT PROCEDURES" TO CASES CLEARLY CALLING FOR
ELECTRONIC SURVEILLANCE.  I CANNOT AGREE THAT TITLE III, FAIRLY READ,
AUTHORIZES THE COURTS TO PICK AND CHOOSE AMONG VARIOUS STATUTORY
PROVISIONS, SUPPRESSING EVIDENCE ONLY WHEN THEY DETERMINE THAT A
PROVISION IS "SUBSTANTIVE," "CENTRAL," OR "DIRECTLY AND SUBSTANTIALLY"
RELATED TO THE CONGRESSIONAL SCHEME.     SECTION 2515 OF TITLE III
UNAMBIGUOUSLY PROVIDES THAT NO EVIDENCE DERIVED FROM ANY INTERCEPTED
COMMUNICATION MAY BE RECEIVED "IN ANY TRIAL . . . IN OR BEFORE ANY
COURT . . . IF THE DISCLOSURE OF THAT INFORMATION WOULD BE IN VIOLATION
OF THIS CHAPTER."  THE COURT ACKNOWLEDGES THIS PROVISON IN CHAVEZ,
ANTE, AT 575, BUT DISREGARDS TWO SECTIONS OF TITLE III EXPLICITLY
DEALING WITH DISCLOSURE IN DETERMINING WHEN DISCLOSURE IS IN FACT "IN
VIOLATION OF"  TITLE III.  SECTION 2511(1), WHICH PROVIDES CRIMINAL
PENALTIES FOR WILLFUL VIOLATIONS OF TITLE III, PROHIBITS IN 2511(1)(C)
KNOWING DISCLOSURE OF COMMUNICATIONS INTERCEPTED IN VIOLATION OF
SUBSECTION (1), AND THE SUBSECTION PROHIBITS INTERCEPTION "(EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED IN THIS CHAPTER."  18 U.S.C. 2511
(1)(A).  SECTION 2517(3) AUTHORIZES THE DISCLOSURE IN A CRIMINAL
PROCEEDING OF INFORMATION RECEIVED "BY ANY MEANS AUTHORIZED BY THIS
CHAPTER" OR OF EVIDENCE DERIVED FROM A COMMUNICATION "INTERCEPTED IN
ACCORDANCE WITH THE PROVISIONS OF CHAPTER."  THE STATUTE DOES NOT
DISTINGUISH BETWEEN THE VARIOUS PROVISIONS OF THE TITLE, AND IT SEEMS
EVIDENT DISCLOSURE IS "IN VIOLATION OF"  TITLE III WHEN THERE HAS NOT
BEEN COMPLIANCE WITH ANY OF ITS REQUIREMENTS. 

THE COURT FIXES ON 2518(10)(A), WHICH DEFINES THE CLASS OF PERSONS
WHO MAY MOVE TO SUPPRESS THE ADMISSION OF EVIDENCE.  THIS SECTION
PROVIDES THAT ANY AGGRIEVED PERSON MAY MOVE TO SUPPRESS EVIDENCE ON THE
GROUNDS THAT: 

     "(I) THE COMMUNICATION WAS UNLAWFULLY INTERCEPTED; 

     "(II) THE ORDER OF AUTHORIZATION OR APPROVAL UNDER WHICH IT
WAS

  INTERCEPTED IS INSUFFICIENT ON ITS FACE; OR 

     "(III) THE INTERCEPTION WAS NOT MADE IN CONFORMITY WITH THE

  ORDER OF AUTHORIZATION OR APPROVAL." 

SINCE PARAGRAPHS (II) AND (III) REACH SOME STATUTORY VIOLATIONS,
REASONS THE COURT, PARAGRAPH (I) CANNOT REACH ALL STATUTORY VIOLATIONS
OR ELSE PARAGRAPHS (II) AND (III) WOULD BE "DRAINED OF ALL MEANING." 

THE CHOICE SEEMS TO BE BETWEEN ATTRIBUTING TO CONGRESS A DEGREE OF
EXCESSIVE CAUTIOUSNESS WHICH LED TO SOME REDUNDANCY IN DRAFTING THE
PROTECTIVE PROVISIONS OF 2518(10)(A), OR FOOLISHNESS WHICH LED CONGRESS
TO ENACT STATUTORY PROVISIONS FOR LAW ENFORCEMENT OFFICIALS TO SCURRY
ABOUT SATISFYING WHEN IT DID NOT CONSIDER THE PROVISIONS SIGNIFICANT
ENOUGH TO ENFORCE BY SUPPRESSION.  IN VIEW OF THE EXPRESS PROHIBITION
BY 2515 OF DISCLOSURE OF INFORMATION "IN VIOLATION OF" THE CHAPTER, I
WOULD OPT FOR THE CONCLUSION THAT CONGRESS WAS EXCESSIVELY CAUTIOUS,
AND THAT "UNLAWFULLY INTERCEPTED" MEANS WHAT IT SAYS. 

CONGRESS COULD EASILY HAVE GIVEN THE JUDICIARY DISCRETION TO APPLY
THE SUPPRESSION REMEDY ONLY FOR VIOLATIONS OF "CENTRAL" STATUTORY
PROVISIONS BY USING LANGUAGE SUCH AS "UNLAWFULLY INTERCEPTED IN
VIOLATION OF IMPORTANT REQUIREMENTS OF THIS CHAPTER" IN 2518(10)(A). 
BUT NO SUCH LIMITATION APPEARS.  FURTHER, THE LEGISLATIVE HISTORY OF
TITLE III EMPHASIZES CONGRESS' INTENT TO ENFORCE EVERY PROVISION OF THE
TITLE WITH THE REMEDY PROVIDED IN 2515 AND 2518(10)(A).  THE SENATE
REPORT WHICH ACCOMPANIED TITLE III TO THE CONGRESS STATES THAT "SECTION
2515 . . . IMPOSES AN EVIDENTIARY SANCTION TO COMPEL COMPLIANCE WITH
THE OTHER PROHIBITIONS OF THE CHAPTER,"  AND THAT 2518(10NA) TOGETHER
WITH 2515 "APPLIES TO SUPPRESS EVIDENCE DIRECTLY . . . OR INDIRECTLY
OBTAINED IN VIOLATION OF THE CHAPTER."  S. REP. NO. 1097, 90TH CONG.,
2D SESS., 96 (1968). 

AGAIN, NO DISTINCTION SUPPORTS THE CONCLUSION THAT CONGRESS
CONSIDERED ANY PROVISION OF TITLE III MORE IMPORTANT THAN ANY OTHER IN
THE APPLICATIONS OF THE SUPPRESSION REMEDY.  CONGRESS AT NO POINT
INDICATED THAT IT INTENDED TO GIVE THE COURTS THE DISCRETION TO
DISTINGUISH VARIOUS PROVISIONS OF TITLE III, NEVER SUPPRESSING EVIDENCE
FOR VIOLATIONS OF SOME--SUCH AS 2518(1)(A) AND (4)(D)--DEEMED NOT
"DIRECTLY AND SUBSTANTIALLY" RELATED TO THE CONGRESSIONAL INTENT TO
LIMIT THE USE OF ELECTRONIC SURVEILLANCE.  NO MATTER HOW EGREGIOUS OR
WILLFUL THE VIOLATION OF THESE PROVISIONS, IT SEEMS THAT SUPPRESSION
WILL NOT FOLLOW, AND THE COURT OPENS THE DOOR TO THE CREATION OF OTHER
NON-"CENTRAL" STATUTORY REQUIREMENTS.  THIS BREADTH OF DISCRETION IS
NOT PART OF THE CONGRESSIONAL SCHEME, AND THE COURT OVERSTEPS ITS
JUDICIAL ROLE WHEN IT ARROGATES SUCH DISCRETION TO ITSELF. 

        III 

MOREOVER, EVEN UNDER THE TEST THE COURT DEFINES IN CHAVEZ, THAT
VIOLATIONS OF ONLY THOSE STATUTORY PROVISIONS "DIRECTLY AND
SUBSTANTIALLY" LIMITING THE USE OF ELECTRONIC SURVEILLANCE WILL WARRANT
SUPPRESSION, THE VIOLATION OF IDENTIFICATION REQUIREMENTS OF 2518(1)(A)
AND (4)(D) MANDATES SUPPRESSION IN CHAVEZ.  FOR THE REQUIREMENT OF
2518(1)(A) THAT THE APPLICATION FOR A WIRETAP "SHALL INCLUDE . . . THE
IDENTITY OF . . . THE OFFICER AUTHORIZING THE APPLICAITON" TOGETHER
WITH THAT OF 2518 (4)(D) THAT THE WIRETAP ORDER CONTAIN THE SAME
INFORMATION SIGNIFICANTLY IMPLEMENTS THE CONGRESSIONAL INTENTION TO
LIMIT THE USE OF ELECTRONIC SURVEILLANCE PROCEDURES. 

IN SUPPORT OF ITS CONCLUSION THAT SUPPRESSION IS NOT MANDATED BY THE
2518(1)(A) AND 2518(4)(D) VIOLATIONS IN CHAVEZ, THE COURT STATES THAT
WHILE CONGRESS EXPRESSED THE INTENT THAT THESE PROVISION "FIX
RESPONSIBILITY"  ON THE PERSON WHO AUTHORIZED THE EMPLOYMENT OF
ELECTRONIC SUREVEILLANCE, "(WHERE IT IS ESTABLISHED THAT RESPONSIBILITY
FOR APPROVAL OF THE APPLICATION IS FIXED IN THE ATTORNEY GENERAL,
HOWEVER, COMPLIANCE WITH THE SCREENING REQUIREMENTS OF TITLE III (2516)
IS ASSURED AND THERE IS NO JUSTIFICATION FOR SUPPRESSION."  ANTE, AT
572.  TO THE OCURT, THE PROVISIONS "DO NOT ESTABLISH A SUBSTANTIVE ROLE
TO BE PLAYED IN THE REGULATORY SYSTEM.  . . . NO ROLE MORE SIGNIFICANT
THAN A REPORTING FUNCTION DESIGNED TO ESTABLISH ON PAPER THAT ONE OF
THE MAJOR PROCEDURAL PROTECTIONS OF TITLE III (THE AUTHORIZATION
REQUIREMENT OF 2516) HAD BEEN PROPERLY ACCOMPLISHED IS APPARENT." 
ANTE, AT 578, 579. 

THE COURT REDUCES THE STATEMENT OF CONGRESS THAT THE IDENTIFICATION
PROVISONS WERE CREATED TO "FIX RESPONSIBILITY"  FOR A WIRETAP
AUTHORIZATION TO MEANING ONLY THAT THE PROVISIONS WERE DRAFTED TO
ASSURE THE COURT THAT THERE HAD BEEN COMPLIANCE WITH THE AUTHORIZATION
REQUIREMENT OF 2516.  AND THE COURT FINDS IT SATISFACTORY THAT THIS
RESPONSIBILITY IS ESTABLISHED BY AN EX POST FACTO AFFIDAVIT OF THE
ATTORNEY GENERAL, STATING THAT HE IN FACT AUTHORIZED THE CHAVEZ
SURVEILLANCE. 

IT SEEMS TO ME A COMPLETE MISREADING OF CONGRESS' ATTEMPT TO "FIX
RESPONSIBILITY" IN THE APPLICATION AND ORDER TO REACH THESE
CONCLUSIONS.  SECTIONS 2518(1)(A) AND 2518(4)(D) ARE NOT PART OF THE
DETAILED AND STRINGENT GUIDELINES OF TITLE III THROUGH LEGISLATIVE
INADVERTENCE.  THEY WERE NOT PRESENT IN EARLY PROPOSALS TO REGULATE
WIRETAPPING, BUT WERE CAREFULLING INSERTED IN LATER PROPOSALS,
CULMINATING IN THE DRAFT WHICH BECAME TITLE III.  A 1961 PROPOSAL TO
ALLOW WIRETAPPING UNDER REGULATED CONDITIONS DID NOT CONTAIN ANY
IDENTIFICATION REQUIREMENT, ALTHOUGH IF CONTAINED PROVISIONS
DESIGNATING THOSE WHO COULD AUTHORIZE SURVEILLANCE.  /6/  S. 675,
INTRODUCED IN THE 90TH CONGRESS BY SENATOR MCCLELLAN ON JANUARY 25,
1967, 113 CONG. REC. 1491, DID NOT REQUIRE EITHER THE APPLICATION OR
THE COURT ORDER TO IDENTIFY THE PERSON WHO AUTHORIZED THE SURVEILLANCE
APPLICATION.  /7/  S. 2050, INTRODUCED FIVE MONTHS LATER BY SENATOR
HRUSKA, 113 CONG. REC. 18007, EXPRESSLY REQUIRED THAT THE APPLICATION
TO THE COURT SET FORTH "THE IDENTITY OF THE PERSON WHO AUTHORIZED THE
APPLICATION," BUT DID NOT REQUIRE THE COURT ORDER TO CONTAIN THIS
INFORMATION.  /8/  H.R. 13482, INTRODUCED IN THE HOUSE ON OCTOBER 12,
1967, 113 CONG. REC. 28792, NOT ONLY REQUIRED THAT THE APPLICATION
IDENTIFY THE PERSON AUTHORIZING IT, BUT ALSO THAT THE COURT ORDER
CONTAIN THIS INFORMATION.  SIX MONTHS LATER ON APRIL 29, 1968, THE
SENATE JUDICIARY COMMITTEE REPORTED S. 917, WHOSE PROVISIONS ULTIMATELY
WERE ENACTED AS TITLE III, ACCOMPANYING THE BILL WITH AN EXTENDED
REPORT EXPLAINING EVERY PROVISION.  /9/  THOUGH IT NOTED THAT TITLE III
IS "ESSENTIALLY A COMBINATION"  OF S. 675 AND S. 2050, /10/  THE
JUDICIARY COMMITTEE WENT BEYOND EITHER OF THOSE BILLS AS TO THE
IDENTIFICATION REQUIREMENTS, MANDATING THAT BOTH THE APPLICATION AND
THE ORDER IDENTIFY THE PERSON WHO AUTHORIZED THE APPLICATION. 

IN ITS DISCUSSION OF THE AUTHORIZATION REQUIREMENT OF 2516, THE
SENATE REPORT STATES: 

"THIS PROVISON CENTRALIZES IN A PUBLICLY RESPONSIBLE OFFICIAL SUJECT
TO THE POLITICAL PROCESS THE FORMULATION OF LAW ENFORCEMENT POLICY ON
THE USE OF ELECTRONIC SUREVEILLANCE TECHNIQUES.  CENTRALIZATION WILL
AVOID THE POSSIBILITY THAT DIVERGENT PRACTICES MIGHT DEVELOP.  SHOULD
ABUSES OCCUR, THE LINES OF RESPONSIBILITY LEAD TO AN IDENTIFIABLE
PERSON.  THIS PROVISION IN ITSELF SHOULD GO A LONG WAY TOWARD
GUARANTEEING THAT NO ABUSES WILL HAPPEN."  S. REP. NO. 1097, 90TH
CONG., 2D SESS., 97 (1968).  BUT THIS ALONE WAS NOT SUFFICIENT.  THE
REPORT CONTINUES: 

     "THE APPLICATION MUST BE MADE TO A FEDERAL JUDGE OF COMPETENT

  JURISDICTION, AS DEFINED IN SECTION 2510 (9), DISCUSSED ABOVE. 

  THE APPLICATION MUST CONFORM TO SECTION 2518 DISCUSSED BELOW." 

  IBID.  (EMPHASIS ADDED.) 

THE COMMITTEE'S DISCUSSION OF 2518 STATES: 

     "SECTION 2518 OF THE NEW CHAPTER SETS OUT IN DETAIL THE

  PROCEDURE TO BE FOLLOWED IN THE INTERCEPTION OF WIRE OR ORAL

  COMMUNICATIONS. 

.  .  .  .  . 

     "SUBPARAGRAPH (2518(1)(A)) REQUIRES THE IDENTITY OF THE PERSON

  WHO MAKES, AND THE PERSON WHO AUTHORIZED THE APPLICATION TO BE

  SET OUT.  THIS FIXES RESPONSIBILITY. 

     .  .  .  .  .  "SUBPARAGRAPH (2518(4)(D)) REQUIRES THAT THE

  ORDER NOTE THE AGENCY AUTHORIZED TO MAKE THE INTERCEPTION AND THE

  PERSON WHO AUTHORIZED THE APPLICATION SO THAT RESPONSIBILITY WILL

  BE FIXED."  ID., AT 100, 101, 103.  (EMPHASIS ADDED.) 

THE CRUCIAL CONCEPT IS CONGRESS' EXPRESSION OF INTENTION THAT
2518(1)(A) AND (4)(D) SHOULD BE COMPLIED WITH, SO THAT THE APPLICATION
AND ORDER WOULD FIX RESPONSIBILITY. 

CLEARLY, NO SUCH RESPONSIBILITY WAS FIXED ON MITCHELL, THE
AUTHORIZING OFFICIAL, IN CHAVEZ.  AS THE COURT OF APPEALS NOTED, UNITED
STATES V. CHAVEZ, 478 F.2D 512, 515, 516, THERE 

"WAS A MISREPRESENTATION, IN CIRCUMSTANTIAL AND CAREFULLY PHRASED
DETAIL, ALL POINTING TO WILSON AS THE OFFICER AUTHORIZING THE
APPLICATION, WHEN IN FACT HE DID NO SUCH THING. 

     ". . . THE WILSON LETTER AND THE MITCHELL MEMORANDUM . . .

  CREATE THE ILLUSION OF COMPLIANCE WITH THE ACT.  WITHOUT

  MITCHELL'S AFFIDAVIT, THE LINES OF RESPONSIBILITY LEAD TO WILSON,

  NOT TO MITCHELL." 

YET WILSON NEVER SAW THE APPLICATION FOR WHICH MITCHELL NOW ACCEPTS
RESPONSIBILITY.  BEFORE THE AFFIDAVITS SUBMITTED TO THE DISTRICT COURT
IN RESPONSE TO THE MOTION TO SUPPRESS, ABOUT ONE YEAR AFTER THE
APPLICATION WAS INITIALLY AUTHORIZED, RESPONSIBILITY POINTED DIRECTLY
AT WILSON, AND NO DOCUMENT IMPLICATED MITCHELL. 

IT IS SIMPLY NOT ENOUGH THAT MITCHELL'S RESPONSIBILITY IS ESTABLISHED
ONLY AFTER A PROSECUTION IS UNDERWAY AND A MOTION TO SUPPRESS FILED. 
AFTER-THE-FACT ACCEPTANCE FOR THE CHAVEZ SURVEILLANCE WAS MADE AT NO
COST.  THE SURVEILLANCE WAS PRODUCTIVE AND WAS DIRECTED AGAINST AN
ALLEGED DRUG TRAFFICKER, A PARIAH OF SOCIETY.  ACCEPTING RESPONSIBILITY
AT THIS POINT, FURTHER, HELPED MITCHELL AND THE JUSTICE DEPARTMENT
AVOID THE ACUTE EMBARRASSMENT OF LOSING THIS PROSECUTION.  BUT THIS WAS
NOT THE SCHEME CREATED BY THE CONGRESS.  BY CREATING THE IDENTIFICATION
PROVISIONS, WHICH REQUIRED THE AUTHORIZING OFFICIAL TO BE MADE KNOWN AT
THE TIME OF AN APPLICATION, IT ESTABLISHED A MECHANISM BY WHICH A
PERSON'S RESPONSIBILITY WAS TO BE ACKNOWLEDGED IMMEDIATELY, NOT A
DEVICE BY WHICH THE IDENTITY OF THE PERSON AUTHORIZING THE APPLICATION
WOULD REMAIN HIDDEN UNTIL IT WAS DISCOVERED THAT AN INSTANCE OF
ELECTRONIC SURVEILLANCE HAD BEEN PRODUCTIVE AND NOT OFFENSIVE TO PUBLIC
SENSIBILITIES. 

IMMEDIATE ACKNOWLEDGEMENT OF RESPONSIBILITY FOR AUTHORIZING
ELECTRONIC SURVEILLANCE IS NOT AN IDLE GESTURE.  IT LESSENS OR
ELIMINATES THE ABILITY OF OFFICIALS TO LATER DISAVOW THEIR
RESPONSIBILITY FOR SURVEILLANCE.  BY ADDING THE IDENTIFICATION
PROVISION OF 2518, CONGRESS TOOK A STEP TOWARD STRIPPING FROM
RESPONSIBLE OFFICIALS THE ABILITY TO CHOOSE AFTER THE FACT WHETHER TO
ACCEPT OR DENY THAT RESPONSIBILITY BY COMING FORWARD AND FILING AN
AFFIDAVIT.  "FIXING" OF RESPONSIBILITY IN THE APPLICATION AND ORDER CAN
HAVE NO OTHER MEANING; IT SIMPLY DOES NOT COMPREHEND A SITUATION WHERE
RESPONSIBILITY IS CONCEALED OR UNSETTLED.  HAD CONGRESS BEEN CONTENT
WITH COMPLIANCE WITH 2516 BEING PROVED AND RESPONSIBILITY FOR
SURVEILLANCE BEING ESTABLISHED BY LATER TESTIMONY AND AFFIDAVITS, IT
COULD EASILY HAVE LEFT THE LEGISLATION IN ITS EARLY FORM WITHOUT ADDING
THE EXPRESS REQUIREMENTS OF 2518(1)(A) AND (4)(D) TO THE ACT.  /11/ 

THE COURT'S TREATMENT OF THE IDENTIFICATION REQUIREMENTS TRIVIALIZES
CONGRESS' EFFORTS IN ADDING THEM TO TITLE III.  IN GIORDANO, THE COURT
RELIES ON CONGRESS' CLEARLY EXPRESSED DESIRE THAT AN OFFICIAL,
RESPONSIBLE TO THE POLITICAL PROCESS, SHOULD MAKE THE DECISION
AUTHORIZING ELECTRONIC SURVEILLANCE AND BEAR THE SCRUTINY OF CONGRESS
AND THE PUBLIC FOR THAT DECISION.  AS NOTED, THE SENATE REPORT WHICH
ACCOMPANIED TITLE III TO CONGRESS STATED THAT 2516 "CENTRALIZES IN A
PUBLICLY RESPONSIBLE OFFICIAL SUBJECT TO THE POLITICAL PROCESS" THE
FORMULATION OF ELECTRONIC SURVEILLANCE POLICY SO THAT "(S) HOULD ABUSES
OCCUR, THE LINES OF RESPONSIBILITY LEAD TO AN IDENTIFIABLE PERSON. 
THIS PROVISION IN ITSELF SHOULD GO A LONG WAY TOWARD GUARANTEEING THAT
NO ABUSES WILL HAPPEN."  S. REP. NO. 1097, 90TH CONG. 2D SESS., 97
(1968).  SIMILARLY, SENATOR LONG, IN SUPPORT OF THE BILL, READ FROM A
REPORT WHICH STATED: "WE AGREE THAT RESPONSIBILITY SHOULD BE FOCUSED ON
THOSE PUBLIC OFFICIALS WHO WILL BE PRINCIPALLY ACCOUNTABLE TO THE
COURTS AND THE PUBLIC FOR THEIR ACTIONS."  /12/  SPEAKING TO A RELATED
PROVISION REQUIRING THAT POLITICALLY RESPONSIBLE STATE PROSECUTING
OFFICIALS AUTHORIZE STATE APPLICATIONS, PROFESSOR BLAKELY OF NOTRE
DAME, INSTRUMENTAL IN THE DRAFTING OF TITLE III, STATED:     "NOW, THE
REASON (FOR THIS REQUIREMENT) IS THAT UNLESS WE INVOLVE SOMEONE IN THE
PROCESS OF USING THIS EQUIPMENT WHO IS POLITICALLY RESPONSIBLE, THAT
IS, SOMEONE WHO MUST RETURN TO THE PEOPLE PERIODICALLY AND BE
REELECTED, IT SEEMS TO ME WE MISS A SIGNIFICANT CHECK ON POSSIBLE
ABUSE.  AS A PRACTICAL MATTER, IF THERE IS POLICE ABUSE, THE REMEDIES
THAT WE CAN TAKE AGAINST THEM ARE LIMITED.  IF WE INVOLVE THE
RESPONSIBLE JUDGMENT OF A POLITICAL OFFICIAL IN THE USE OF THIS
EQUIPMENT, AND IT IS THEN ABUSED, THE PEOPLE HAVE A VERY QUICK AND
EFFECTIVE REMEDY AT THE NEXT ELECTION."  /13/ 

BUT IT IS CLEAR THAT THIS PERSONAL RESPONSIBILITY AND POLITICAL
ACCOUNTABILITY, RELIED ON BY CONGRESS TO CHECK THE RECKLESS USE OF
ELECTRONIC SURVEILLANCE, IS RENDERED A MERE CHIMERA WHEN THE OFFICIAL
ACTUALLY AUTHORIZING A WIRETAP APPLICATION IS NOT IDENTIFIED UNTIL
YEARS AFTER TAP HAS OCCURRED, WHEN HE MIGHT ALREADY BE OUT OF OFFICE,
WHEN THE USEFULNESS OF THE TAP IS ALREADY ESTABLISHED, WHEN IT IS CLEAR
THAT THE VOLUNTARY ADMISSIONS OR THE SIFTING OF POTENTIALLY
CONTRADICTORY AFFIDAVITS.  RESPONSIBILITY IS HARDLY "FOCUSED," AND THE
"LINES OF RESPONSIBILITY"  ARE GOSSMER AT BEST.  THIS IS WHY CONGRESS
ADDED THE DEMAND THAT RESPONSIBILITY BE IMMEDIATELY FIXED.  THE
PROCEDURES WHICH THE COURT SANCTIONS IN CHAVEZ STRETCH THE
UNEQUIVOCALLY EXPRESSED DESIRE OF CONGRESS TO FIX RESPONSIBILITY IN THE
APPLICATION AND ORDER WELL BEYOND THE BREAKING POINT. 

IN EVISCERATING CONGRESS' INTENT TO FIX RESPONSIBILITY IN THE
APPLICATION AND ORDER, THE COURT DESTROYS A SIGNIFICANT DETERRENT TO
RECKLESS OR NEEDLESS ELECTRONIC SURVEILLANCE.  IT ALLOWS THE OFFICIAL
AUTHORIZING A WIRETAP TO REMAIN OUT OF THE HARSH LIGHT OF PUBLIC
SCRUTINY AT THE CRUCIAL BEGINNING OF THE WIRETAP PROCESS, ONLY TO
EMERGE LATER WHEN HE CHOOSES TO IDENTIFY HIMSELF.  KNOWLEDGE THAT
PERSONAL RESPONSIBILITY WOULD BE IMMEDIATELY FOCUSED AND IMMUTABLY
FIXED, WHATEVER THE OUTCOME OF SURVEILLANCE, BE IT PROFITABLE OR
PROFLIGATE, SUCCESSFUL OR EMBARRASSING, FORCES AN OFFICIAL TO BE
CIRCUMSPECT IN INITIALLY AUTHORIZING AN ELECTRONIC INVASION OF
PRIVACY.  THIS IS WHY TITLE III REQUIRES MORE THAN A JUDICIAL
DETERMINATION OF PROBABLE CAUSE; IT ALSO REQUIRES AN ACCOUNTABLE
POLITICAL OFFICIAL TO EXERCISE POLITICAL JUDGMENT, AND IT REQUIRES THAT
THE POLITICAL OFFICIAL BE IMMEDIATELY IDENTIFIED AND HIS RESPONSIBILITY
FIXED WHEN AN APPLICATION IS FILED.  THE IDENTIFICATION PROCEDURES, BY
FIXING RESPONSIBILITY, OBVIOUSLY SERVE TO "LIMIT THE USE OF INTERCEPT,"
THEREBY REQUIRING SUPPRESSION EVEN UNDER THE TEST THE COURT ADOPTS IN
CHAVEZ. 

        IV 

THE COURT MENTIONS IN PASSING THE REPORTING REQUIREMENTS OF TITLE
III, NOTING THE INFORMATION FURNISHED THE JUDGE PURSUANT TO 2518(1)(A)
IS USEFUL IN MAKING THE REPORTS REQUIRED OF HIM UNDER 2519.  THIS
WHO AUTHORIZED EACH WIRETAP APPLICATION MADE TO HIM TO THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS WITHIN 30 DAYS AFTER
SURVEILLANCE HAS BEEN COMPLETED.  18 U.S.C. 2519(1)(F).  AT THE SAME
TIME, 18 U.S.C. 2518(2) REQUIRES THE AUTHORIZING PROSECUTING OFFICIALS
DESIGNATED IN 2516 TO FILE A REPORT IN JANUARY OF EACH YEAR, WHICH ALSO
MUST INCLUDE THE NAME OF THE PERSON WHO AUTHORIZED APPLICATIONS MADE
DURING THE PREVIOUS CALENDAR YEAR.  IN RELIANCE ON THIS INFORMATION,
THE ADMINISTRATIVE OFFICE IS TO REPORT SUCH INFORMATION TO THE CONGRESS
FOR PUBLIC SCRUTINY.  2519(3).  LIKE THE APPLICATIONS AND WIRETAP
ORDERS THEMSELVES, THIS REPORT IS TO INCLUDE THE NAMES OF THOSE PERSON
RESPONSIBLE FOR AUTHORIZING ELECTRONIC SURVEILLANCE. 

IN THE SET OF CASES REPRESENTED BY CHAVEZ, OF COURSE, THE PERSON
ACTUALLY AUTHORIZING THE APPLICATIONS, MITCHELL, WAS NOT MADE KNOWN TO
THE COURTS WHICH APPROVED THEM, AND SO THE REPORTS FILED WITH THE
ADMINISTRATIVE OFFICE BY THE JUDICIARY DID NOT IDENTIFY HIM AS THE
RESPONSIBLE OFFICIAL.  THE POTENTIAL FOR PUBLIC ACCOUNTABILITY THROUGH
THIS CHANNEL WAS FORECLOSED BY THE MISINFORMATION GIVEN THE COURTS. 
WHILE THE REPORT FILED BY THE OFFICE OF THE ATTORNEY GENERAL IN JANUARY
1970 DID STATE THAT THE 1969 APPLICATIONS FILED IN WILSON'S NAME HAD
BEEN PERSONALLY APPROVED BY MITCHELL, THE SOLICITOR GENERAL INFORMS US
THAT THE REPORTS FILED BY THE ATTORNEY GENERAL REGARDING INSTANCES OF
ELECTRONIC SURVEILLANCE FOR 1970 AND AFTER, INCLUDING GIORDANO WIRETAP
(1970) AND THE CHAVEZ TAP (1971), DID NOT ACKNOWLEDGE THAT MITCHELL HAD
PERSONALLY AUTHORIZED THE SURVEILLANCE ATTRIBUTED TO HIS SUBORDINATES. 
/14/  THE FAILURE OF THE ATTORNEY GENERAL'S OFFICE TO DOCUMENT THE
ACTUAL PERSONAL RESPONSIBILITY OF MITCHELL FOR SURVEILLANCE
AUTHORIZATIONS OCCURRED AS THOSE AUTHORIZATIONS PROLIFERATED: THERE
WERE ONLY 34 INSTANCES OF FEDERAL SURVEILLANCE REPORTED UNDER TITLE III
FOR 1969, BUT THAN NUMBER ROSE TO 183 IN 1970 AND 283 IN 1971.  /15/
EX POST FACTO ACKNOWLEDGEMENT OF RESPONSIBILITY BY MITCHELL IN THE
ANNUAL REPORTS FILED PURSUANT TO 2519(2) COULD NOT, OF COURSE, CURE THE
VIOLATION OF THE EXPRESS CONGRESSIONAL MANDATE OF 2518 (1)(A), ANY MORE
THAN DID MITCHELL'S FILING OF AN AFFIDAVIT.  NEVERLESS, NOT EVEN THESE
REPORTS FOR YEARS AFTER 1969 PROVIDED DOCUMENTATION THAT MITCHELL WAS
THE JUSTICE DEPARTMENT OFFICIAL ACTUALLY RESPONSIBLE FOR AUTHORIZING
ELECTRONIC SURVEILLANCE.  WHILE CONGRESS DEMANDED THE OPENNESS OF
POLITICAL ACCOUNTABILITY, JUSTICE DEPARTMENT DOCUMENTS DREW A VEIL OF
SECRECY, AND NO PERSONAL RESPONSIBILITY WAS ATTRIBUTED IN ANY DOCUMENTS
TO MITCHELL, THE PERSON ACTUALLY RESPONSIBLE FOR AUTHORIZING THE
ELECTRONIC SURVEILLANCE. 

        V 

AS THE COURT RECOGNIZED IN GELBARD V. UNITED STATES, 408 U.S. 41,
48, THE PROTECTION OF PRIVACY WAS AN OVERRIDING CONCERN OF CONGRESS
WHEN IT ESTABLISHED THE REQUIREMENTS OF TITLE III IN 1968: 

"THE NEED FOR COMPREHENSIVE, FAIR AND EFFECTIVE REFORM SETTING
UNIFORM STANDARDS IS OBVIOUS.  NEW PROTECTIONS FOR PRIVACY MUST BE
ENACTED."  S. REP. NO. 1097, 90TH CONG., 2D SESS., 69.  ELECTRONIC
SURVEILLANCE WAS A SERIOUS POLITICAL ISSUE, AND THESE DETAILED AND
COMPREHENSIVE REQUIREMENTS ARE NOT PORTIONS OF A HASTILY CONCEIVED
PIECE OF LEGISLATION.  AS NOTED ABOVE, ELECTRONIC SURVEILLANCE
LEGISLATION WAS INTRODUCED LONG BEFORE 1968, AND THE PROVISIONS OF
TITLE III ARE THE CULMINATION OF A LONG EVOLUTIONARY PROCESS.  THE
TITLE WAS ACCOMPANIED BY AN EXHAUSTIVE AND STUDIED REPORT IN WHICH THE
SENATE JUDICIARY COMMITTEE OFFERED AN EXPLANATION AND JUSTIFICATION FOR
EACH CLAUSE OF THE BILL.  I CANNOT BELIEVE THAT CONGRESS PERVERSELY
REQUIRED LAW ENFORCEMENT OFFICIALS TO JUMP THROUGH STATUTORY HOOPS IT
CONSIDERED UNNECESSARY TO THE GOAL OF PROTECTING INDIVIDUAL PRIVACY
FROM UNWARRANTED ELECTRONIC INVASIONS. 

ON THE CONTRARY, THE HISTORY OF TITLE III REFLECTS A DESIRE THAT ITS
PROVISIONS BE STRICTLY CONSTRUED.  SENATOR MCCLELLAN, SPONSOR OF S.
675, ONE OF THE BASES FOR TITLE III, AND CHAIRMAN OF THE COMMITTEE
WHICH REPORTED TITLE III TO CONGRESS, STATED DURING HEARINGS ON HIS
BILL: 

"I WOULD NOT WANT ANY LOOSE ADMINISTRATION OF THIS LAW. 

        .  .         .         .         . 

"BUT (WOULD) HAVE IT VERY STRICTLY OBSERVED.  IT IS NOT TO BECOME A
CATCHALL FOR PROMISCUOUS USE.  I WANT TO SEE THIS LAW STRICTLY OBSERVED
WITH THE COURTS ADHERING TO THE SPIRIT AND INTENT OF IT IN GRANTING THE
ORDERS. 

        .         .         .         .         . 

"I THINK IT OUGHT TO BE TIGHT, VERY DEFINITELY AS FREE FROM
LOOPHOLES AS IT CAN POSSIBLY BE MADE . . . ."  /16/ SUBSEQUENTLY,
MCCLELLAN'S COMMITTEE CLOSED YET ANOTHER LOOPHOLE IN THE LAW BY
INSERTING THE IDENTIFICATION REQUIREMENTS OF TITLE III, ATTEMPTING
THEREBY TO FIX RESPONSIBILITY AT THE TIME OF THE APPLICATION FOR A
WIRETAP ORDER, REQUIREMENTS WHICH THIS COURT NOW NULLIFIES. 

MR. JUSTICE HOLMES OBSERVED IN DISSENT 70 YEARS AGO: 

     "GREAT CASES LIKE HARD CASES MAKE BAD LAW.  FOR GREAT CASES
ARE

  CALLED GREAT, NOT BY REASON OF THEIR REAL IMPORTANCE IN SHAPING

  THE LAW OF THE FUTURE, BUT BECAUSE OF SOME ACCIDENT OF IMMEDIATE

  OVERWHELMING INTEREST WHICH APPEALS TO THE FEELINGS AND DISTORTS

  THE JUDGMENT.  THESE IMMEDIATE INTERESTS EXERCISE A KIND OF

  HYDRAULIC PRESSURE WHICH MAKES WHAT PREVIOUSLY WAS CLEAR SEEM

  DOUBTFUL, AND BEFORE WHICH EVEN WELL SETTLED PRINCIPLES OF LAW

 WILL BEND."  NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S.

  197, 400 - 401. 

THE SOLICITOR GENERAL REMINDS US THAT SUBSTANTIAL EFFORT ON THE PART OF
THE ORGANIZED CRIME SECTION OF THE CRIMINAL DIVISION OF THE DEPARTMENT
OF JUSTICE IS IMPLICATED, FOR THE VIOLATIONS OF TITLE III REFLECTED IN
THESE TWO CASES ARE NOT ISOLATED OCCURENCES.  THE FAILURE OF ATTORNEY
GENERAL MITCHELL PROPERLY TO AUTHORIZE APPLICATIONS INVOLVES 60 CASES
AND 626 DEFENDANTS.  THE FAILURE OF SURVEILLANCE APPLICATIONS TO FIX
RESPONSIBILITY ON MITCHELL, WHEN HE DID IN FACT AUTHORIZE THE
APPLICATIONS, INVOLVES AN ADDITIONAL 99 CASES AND 807 DEFENDANTS.  YET
THE MAGNITUDE OF THE EFFECT OF SUPPRESSION OF UNLAWFULLY OBTAINED
EVIDENCE FOR THESE VIOLATIONS OF TITLE III DOES NOT VITIATE OUR DUTY TO
ENFORCE THE CONGRESSIONAL SCHEME AS WRITTEN.  THE FAILURE OF A
PROSECUTION IN A PARTICULAR CASE PALES IN COMPARISON WITH THE DUTY OF
THIS COURT TO NOURISH AND ENHANCE RESPECT FOR THE EVENHANDED
APPLICATION OF THE LAW.  I ACCORDINGLY DISSENT IN PART IN CHAVEZ. 

/1/  THE FORM MEMORANDUM EMPLOYED BY MITCHELL STATED IN PART: 

"THIS IS WITH REGARD TO YOUR RECOMMENDATION THAT AUTHORIZATION BE
GIVEN TO (THE PARTICULAR TRIAL ATTORNEY) TO MAKE APPLICATION FOR AN
ORDER OF THE COURT UNDER TITLE 18 U.S.C.  SECTION 2518, PERMITTING THE
INTERCEPTION OF WIRE COMMUNICATIONS FOR A (PARTCULAR) PERIOD TO AND
FROM TELEPHONE NUMBER (THE LISTED TELEPHONE NUMBERS OF THE PARTICULAR
CRIMINAL INVESTIGATION) . . . . 

"PURSUANT TO THE POWERS CONFERRED ON ME BY SECTION 2516 OF TITLE 18,
U.S.C.  YOU ARE HEREBY SPECIALLY DESIGNATED TO EXERCISE THOSE POWERS
FOR THE PURPOSE OF AUTHORIZING (THE PARTICUALR TRIAL ATTORNEY) TO MAKE
THE ABOVE-DESCRIBED APPLICATION."  (EMPHASIS ADDED.) 

/2/  THE LETTER SENT OVER WILSON'S SIGNATURE IN CHAVEZ READ: 

"THIS IS WITH REGARD TO YOUR REQUEST FOR AUTHORIZATION TO MAKE
APPLICATION PURSUANT TO THE PROVISIONS OF SECTION 2518 OF TITLE 18,
U.S.C.  FOR AN ORDER OF THE COURT AUTHORIZING THE BUREAU OF NARCOTICS
AND DANGEROUS DRUGS AND THE BUREAU OF CUSTOMS (TO INTERCEPT WIRE
COMMUNICATIONS AT THE PARTICULAR NUMBER INVOLVED) . . . . 

"I HAVE REVIEWED YOUR REQUEST AND THE FACTS AND CIRCUMSTANCES
DETAILED THEREIN AND HAVE DETERMINED THAT THERE EXISTS PROBABLE CAUSE
TO BELIEVE THAT (NAMED INDIVIDUALS WERE COMMITTING CERTAIN OFFENSES) .
. . . I HAVE FURTHER DETERMINED THAT THERE EXISTS PROBABLE CAUSE TO
BELIEVE THAT THE ABOVE PERSONS MAKE USE OF THE DESCRIBED FACILITY IN
CONNECTION WITH THOSE EFFENSES, THAT WIRE COMMUNICATIONS CONCERNING THE
OFFENSES WILL BE INTERCEPTED, AND THAT NORMAL INVESTIGATIVE PROCEDURES
REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED. 

"ACCORDINGLY, YOU ARE HEREBY AUTHORIZED UNDER THE POWER SPECIALLY
DELEGATED TO ME IN THIS PROCEEDING BY THE ATTORNEY GENERAL OF THE
UNITED STATES, THE HONORABLE JOHN N. MITCHELL, PURSUANT TO THE POWER
CONFERRED ON HIM BY SECTION 2518 OF TITLE 18, U.S.C.  TO MAKE
APPLICATION TO A JUDGE OF COMPETENT JURISDICTION FOR AN ORDER OF THE
COURT PURSUANT TO SECTION 2518 OF TITLE 18, U.S.C. (TO INTERCEPT THE
DESCRIBED WIRE COMMUNICATIONS) . . . ."  (EMPHASIS ADDED.) 

/3/ IN CHAVEZ, THE LETTER WAS SIGNED BY PETERSON. 

/4/  THE APPLICATION STATED:  "(THE HONORABLE JOHN N. MITCHELL, HAS
SPECIALLY DESIGNATED IN THE PROCEEDING THE ASSISTANT ATTORNEY GENERAL
FOR THE CRIMINAL DIVISION OF THE UNITED STATES DEPARTMENT OF JUSTICE,
THE HONORABLE WILL WILSON, TO AUTHORIZE AFFIANT TO MAKE THIS
APPLICATION FOR AN ORDER AUTHORIZING THE INTERCEPTION OF WIRE
COMMUNICATIONS.  THIS LETTER OF AUTHORIZATION SIGNED BY THE ASSISTANT
ATTORNEY GENERAL IS ATTACHED TO THIS APPLICATION AS EXHIBIT A." 

/5/  THE ORDER READ IN PART:  "SPECIAL AGENTS . . . ARE AUTHORIZED,
PURSUANT TO THE APPLICATION AUTHORIZED BY THE ASSISTANT ATTORNEY
GENERAL FOR THE CRIMINAL DIVISION OF THE UNITED STATES DEPARTMENT OF
JUSTICE, THE HONORABLE WILL WILSON, (TO INTERCEPT WIRE COMMUNICATIONS)
. . . ." 

/6/  S. 1495, 87TH CONG., 1ST SESS., 4(B), PRINTED IN HEARINGS ON
WIRETAPPING AND EAVESDROPPING LEGISLATION BEFORE THE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS OF THE SENATE COMMMITTEE ON THE JUDICIARY, 87TH
CONG., 1ST SESS., 4, 5 (1961). 

/7/  PRINTED IN HEARINGS ON CONTROLLING CRIME THROUGH MORE EFFECTIVE
LAW ENFORCEMENT BEFORE THE SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES
OF THE SENATE COMMITTEE ON THE JUDICIARY, 90TH CONG., !ST SESS., 75
(1967). 

/8/  PRINTED IN HEARINGS, SUPRA, N.7, AT 1006. 

/9/  S. REP. NO. 1097, 90TH CONG., 2D SESS. (1968). 

/10/  ID., AT 66. 

/11/  THE COURT IN CHAVEZ FINDS SOME GUIDANCE IN THE FACT THAT "NO
REAL DEBATE SURROUNDED" THE ADOPTION OF THE IDENTIFICATION
REQUIREMENTS.  THIS IS NOT SURPRISING, IN THAT THE PROVISIONS WERE
ADDED TO WIRETAPPING LEGISLATION IN COMMITTEE, AND JUSTIFIED IN THE
JUDICIARY COMMITTEE'S REPORT. 

/12/  114 CONG. REC. 14474.  THE REPORT WAS BY THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK, COMMITTEE ON FEDERAL LEGISLATION,
COMMITTEE ON CIVIL RIGHTS, ENTITLED "PROPOSED LEGISLATION ON
WIRETAPPING AND EAVESDROPPING AFTER BERGER V. NEW YORK AND KATZ V.
UNITED STATES." 

/13/  HEARINGS ON ANTI-CRIME PROGRAM BEFORE SUBCOMMITTEE NO. 5 OF
THE HOUSE COMMITTEE ON THE JUDICIARY, 90TH CONG., 1ST SESS., 1380
(1967).     /14/  THE ADMINISTRATIVE OFFICE, NONETHELESS, REPEATED THE
STATEMENT MADE FOR 1969 THAT MITCHELL HAD "PERSONALLY" AUTHORIZED THE
APPLICATIONS. 

/15/  SEE ADMINISTRATIVE OFFICE OF UNITED STATES COURT, REPORTS ON
APPLICATIONS FOR ORDERS AUTHORIZING OR APPROVING THE INTERCEPTION OF
WIRE OF WIRE OR ORAL COMMUNICATIONS, 1969, 1970, 1971. 

/16/  HEARINGS ON CONTROLLING CRIME THROUGH MORE EFFECTIVE LAW
ENFORCEMENT BEFORE THE SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF
THE SENATE COMMITTEE ON THE JUDICIARY, 90TH CONG., 1ST SESS., 508,
869.  IN ADDITION, IN REPORTING TO THE SENATE IN 1969 ON THE OPERATION
OF TITLE III DURING ITS FIRST YEAR, SENATOR MCCLELLAN STATED:  "I DO,
HOWEVER, WANT TO ADMONISH EVERY LAW ENFORCEMENT OFFICER, PROSECUTOR,
AND JUDGE INVOLVED IN THIS AREA THAT THE ONLY WAY THIS LEGISLATION WILL
BE EFFECTIVE IN COMBATING CRIME IS BY STRICT ADHERENCE TO THE STANDARDS
IT CONTAINS. 

        .         .     .         .         . 

". . . THIS IS AN INVALUABLE AND POWERFUL TOOL THAT MUST NOT BE
SUBJECTED TO ABUSE.  THOSE WHO VIOLATE THE STANDARDS CAN AND MUST
EITHER BE PUNISHED AND IF THEY CANNOT LEARN TO FOLLOW THE LAW THEY MUST
FACE LOSS OF THIS ENFORCEMENT TOOL.  . . .

        .         .         .     .         . 

"MR. PRESIDENT, MY PURPOSE IN MAKING THESE REMARKS HAS BEEN TO HELP
ASSURE THAT THIS LEGISLATION WILL, BE, IN FACT, FOLLOWED TO THE
STRICTEST LETTER OF THE LAW--BOTH CRINGING CRIMINALS TO BOOK AND
PROTECTING CITIZENS' PRIVACY.  THAT IS THE ONLY WAY IN WHICH IT CAN BE
UTILIZED AS AN EFFECTIVE TOOL IN REDUCING CRIME.  . . . LET US MAKE
SURE THAT NONE OF THOSE WHO MAY BE CONVICTED CAN ASK FOR A REVERSAL
BECAUSE THE LAW WAS NOT STRICTLY FOLLOWED."  115 CONG. REC. 23241 -
23242. 

SOLICITOR GENERAL BORK ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL PETERSEN, HARRIET S.
SHAPIRO, AND SIDNEY M. GLAZER. 

JAMES F. HEWITT ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

..END :





















MITCHELL V. W.T. GRANT CO., 416 U.S. 600 


       MITCHELL V. W. T. GRANT CO.

        CERTIORARI TO THE SUPREME COURT OF LOUISIANA

        NO. 72 - 6160.  ARGUED DECEMBER 4, 1973--DECIDED MAY 13,

           1974; (263 LA. 627, 269 SO. 2D 186, AFFIRMED.) 


    THE LOUISIANA CODE OF CIVIL PROCEDURE MAKES AVAILABLE TO A

  MORTGAGE OR LIEN HOLDER A WRIT OF SEQUESTRATION TO FORESTALL

  WASTE OR ALIENATION OF THE ENCUMBERED PROPERTY.  WHILE THE WRIT

  IS OBTAINABLE ON THE CREDITOR'S EX PARTE APPLICATION WITHOUT

  NOTICE TO THE DEBTOR OR AN OPPORUNITY FOR HEARING, THE WRIT WILL

  ISSUE ONLY UPON A VERIFIED AFFIDAVIT AND UPON A JUDGE'S AUTHORITY

  (WITH RESPECT TO THE PARISH INVOLVED IN THIS CASE) AFTER THE

  CREDITOR HAS FILED A SUFFICIENT BOND.  THE DEBTOR MAY IMMEDIATELY

SEEK DISSOLUTION OF THE WRIT, WHICH MUST BE ORDERED UNLESS THE

  CREDITOR PROVES THE GROUNDS FOR ISSUANCE (EXISTENCE OF THE DEBT,

  LIEN, AND DELINQUENCY), FAILING WHICH THE COURT MAY ORDER RETURN

  OF THE PROPERTY AND ASSESS DAMAGES, INCLUDING ATTORNEY'S FEES, IN

  THE DEBTOR'S FAVOR.  RESPONDENT SELLER FILED SUIT AGAINST

  PETITIONER IN THE NEW ORLEANS CITY COURT FOR THE OVERDUE BALANCE

  OF THE PRICE OF CERTAIN PERSONAL PROPERTY THAT PETITIONER HAD

  PURCHASED UNDER AN INSTALLMENT SALES CONTRACT AND ON WHICH

  RESPONDENT HAD A VENDOR'S LIEN.  ON REPSONDENT'S APPLICATION, THE

TRIAL JUDGE IN ACCORDANCE WITH THE LOUISIANA PROCEDURE ORDERED

  SEQUESTRATION OF THE PROPERTY WITHOUT PRIOR NOTICE TO DISSOLVE

  THE WRIT ON THE ASSERTED GROUND, INTER ALIA, THAT THE SEIZURE

  VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE

  APPELLATE COURTS AFFIRMED.  HELD: THE LOUISIANA SEQUESTRATION

  PROCEDURE IS NOT INVALID, EITHER ON ITS FACE OR AS APPLIED, AND,

  CONSIDERING THE PROCEDURE AS A WHOLE, IT EFFECTS A CONSTITUTIONAL

  ACCOMMODATION OF THE RESPECTIVE INTERESTS OF THE BUYER AND SELLER

  BY PROVIDING FOR JUDICIAL CONTROL OF THE PROCESS FROM BEGINNING

  TO END, THUS MINIMIZING THE RISK OF THE CREDITOR'S WRONGFUL

  INTERIM POSSESSION, BY PROTECTING THE DEBTOR'S INTEREST IN EVERY

  WAY EXCEPT TO ALLOW HIM INITIAL POSSESSION, AND BY PUTTING THE

  PROPERTY IN THE POSSESSION OF THE PARTY WHO IS ABLE TO FURNISH

  PROTECTION AGAINST LOSS OR DAMAGE PENDING TRIAL ON THE MERITS. 

  FUENTES V. SHEVIN, 407 U.S. 67, DISTINGUISHED.  PP. 603 - 620. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BERGER,

 C. J., AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  POWELL,

  J., FILED A CONCURRING OPINION, POST, P. 623.  BRENNAN, J., FILED

  A DISSENTING STATEMENT, POST, P. 636.  STEWART, J., FILED A

  DISSENTING OPINION IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED,

  AND IN WHICH BRENNAN, J., JOINED IN PART, POST, P. 629. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE, A STATE TRIAL JUDGE IN LOUISIANA ORDERED THE
SEQUESTRATION OF PERSON PROPERTY ON THE APPLICATION OF A CREDITOR WHO
HAD MADE AN INSTALLMENT SALE OF THE GOODS TO PETITIONER AND WHOSE
AFFIDAVIT ASSERTED DELINQUENCY AND PRAYED FOR SEQUESTRATION TO ENFORCE
A VENDOR'S LIEN UNDER STATE LAW.  THE ISSUE IS WHETHER THE
SEQUESTRATION VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT BECAUSE IT WAS ORDERED EX PARTE, WITHOUT PRIOR NOTICE OR
OPPORUNITY FOR A HEARING. 

        I 

ON FEBRUARY 2, 1972, RESPONDENT W. T. GRANT CO. FILED SUIT IN THE
FIRST CITY COURT OF THE CITY OF NEW ORLEANS, LOUISIANA, AGAINST
PETITIONER MITCHELL OF A REFRIGERATOR, RANGE, STEREO, AND WASHING
MACHINE, AND AN OVERDUE AND UNPAID BALANCE OF THE PURCHASE PRICE FOR
SAID ITEMS IN THE AMOUNT  OF $574.17.  JUDGMENT FOR THAT SUM WAS
DEMANDED.  IT WAS FURTHER ALLEGED THAT GRANT HAD A VENDOR'S LIEN ON THE
GOODS AND THAT A WRIT OF SEQUESTRATION SHOULD ISSUE TO SEQUESTER THE
MERCHANDISE PENDING THE OUTCOME OF THE SUIT.  THE ACCOMPANYING
AFFIDAVIT OF GRANT'S CREDIT MANAGER SWORE TO THE TRUTH OF THE FACTS
ALLEGED IN THE COMPLAINT.  IT ALSO ASSERTED THAT GRANT HAD REASON TO
BELIEVE PETITIONER WOULD "ENCUMBER, ALIENATE OR OTHERWISE DISPOSE OF
THE MERCHANDISE DESCRIBED IN THE FOREGOING PETITION DURING THE PENDENCY
OF THESE PROCEEDINGS, AND THAT A WRIT OF SEQUESTRATION IS NECESSARY IN
THE PREMISES."  BASED ON THE FOREGOING PETITION AND AFFIDAVIT, AND
WITHOUT PRIOR NOTICE TO MITCHELL OR AFFORDING HIM OPPORTUNITY FOR
HEARING, THE JUDGE OF THE FIRST CITY COURT, ARTHUR J. O'KEEFE, THEN
SIGNED AN ORDER THAT "A WRIT OF SEQUESTRATION ISSUE HEREIN" AND THAT
"THE CONSTABLE OF THIS COURT SEQUESTER AND TAKE INTO HIS POSSESSION THE
ARTICLES OF MERCHANDISE DESCRIBED IN THE FOREGOING PETITION, UPON
PLAINTIFF FURNISHING BOND IN THE AMOUNT OF $1,125."  BOND IN THAT
AMOUNT HAVING BEEN FILED BY THE RESPONDENT, THE WRIT OF SEQUESTRATION
ISSUED, ALONG WITH CITATION TO PETITIONER MITCHELL, CITING HIM TO FILE
A PLEADING OR MAKE APPEARANCE IN THE FIRST CITY COURT OF THE CITY OF
NEW ORLEANS WITHIN FIVE DAYS.  THE CITATION RECITED THE FILING OF THE
WRIT OF SEQUESTRATION AND THE ACCOMPANYING AFFIDAVIT, ORDER, AND BOND. 
ON MARCH 3 MITCHELL FILED A MOTION TO DISSOLVE THE WRIT OF
SEQUESTRATION ISSUED ON FEBRUARY 2.  /1/  THE MOTION ASSERTED THAT THE
PERSONAL PROPERTY AT ISSUE HAD BEEN SEIZED UNDER THE WRIT ON FEBRUARY
7, 1972, AND CLAIMED, FIRST, THAT THE GOODS WERE EXEMPT FROM SEIZURE
UNDER STATE LAW AND, SECOND, THAT THE SEIZURE VIOLATED THE DUE PROCESS
CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS IN THAT IT HAD OCCURRED
WITHOUT PRIOR NOTICE AND OPPORTUNITY TO DEFEND PETITIONER'S RIGHT TO
POSSESSION OF THE PROPERTY.  /2/  THE MOTION CAME ON FOR HEARING ON
MARCH 14.  IT WAS THEN STIPULATED THAT A VENDOR'S LIEN, EXISTED ON THE
ITEMS, ARGUMENTS OF COUNSEL WERE HEARD, AND ON MARCH 16 THE MOTION TO
DISSOLVE WAS DENIED.  THE GOODS WERE HELD NOT EXEMPT FROM SEIZURE UNDER
STATE LAW.  THE TRIAL COURT ALSO RULED THAT "THE PROVISIONAL SEIZURE
ENFORCED THROUGH SEQUESTRATION" WAS NOT A DENIAL OF DUE PROCESS OF
LAW.  "TO THE CONTRARY," THE TRRIAL JUDGE SAID, "PLAINTIFF INSURED
DEFENDANT'S RIGHT TO DUE PROCESS BY PROCEEDING IN ACCORDANCE WITH
LOUISIANA LAW AS OPPOSED TO ANY TYPE OG SELF-HELP SEIZURE WHICH WOULD
HAVE DENIED DEFENDANT POSSESSION OF HIS PROPERTY WITHOUT DUE PROCESS." 
THE APPELLATE COURTS OF LOUISIANA REFUSED TO DISTURB THE RULINGS OF THE
TRIAL COURT, THE SUPREME COURT OF LOUISIANA EXPRESSLY REJECTING
PETITIONER'S DUE PROCESS CLAIMS PRESSED UNDER THE FEDERAL
CONSTITUTIONA.  263 LA. 627, 269 SO. 2D 186 (1972).  WE GRANTED
CERTIORARI, 411 U.S. 981 (1973), AND NOW AFFIRM THE JUDGMENT OF THE
LOUISIANA CUPREME COURT. 

        II 

PETITIONER'S BASIC PROPOSITION IS THAT BECAUSE HE HAD POSSESSION OF
AND A SUBSTANTIAL INTEREST IN THE SEQUESTERED PROPERTY, THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT NECESSARILY FORBADE THE SEIZURE
WITHOUT PRIOR NOTICE AND OPPORUNITY FOR A HEARING.  IN THE
CIRCUMSTANCES PRESENTED HERE, WE CANNOT AGREE. 

PETITIONER NO DOUBT "OWNED" THE GOOD HE HAD PURCHASED UNDER AN
INSTALLMENT SALES CONTRACT, BUT HIS TITLE WAS HEAVILY ENCUMBERED.  THE
SELLER, W. T. GRANT CO., ALSO HAD AN INTEREST IN THE PROPERTY, FOR
STATE PROVIDED IT WITH A VENDOR'S LIEN TO SECURE THE UNPAID BALANCE OF
THE PURCHASE PRICE.  BECAUSE OF THE LIEN, MITCHELL'S RIGHT TO
POSSESSION AND HIS TITLE WERE SUBJECT TO DEFEASANCE IN THE EVENT OF
DEFAULT IN PAYING THE INSTALLMENTS DUE FROM HIM.  HIS INTEREST IN THE
PROPERTY, UNTIL THE PURCHASE PRICE WAS PAID IN FULL, WAS NO GREATER
THAN THE SURPLUS REMAINING, IF ANY, AFTER FORECLOSURE AND SALE OF THE
PROPERTY IN THE EVENT OF HIS DEFAULT AND SATISFACTION OF OUTSTANDING
CLAIMS.  SEE LA. CODE CIV. PROC. ANN., ART. 2373 (1961).  /3/  THE
INTEREST OF GRANT, AS SELLER OF THE PROPERTY AND HOLDER OF A VENDOR'S
LIEN, WAS MEASURED BY THE UNPAID BALANCE OF THE PURCHASE PRICE.  THE
MONETARY VALUE OF THAT INTEREST IN THE PROPERTY DIMINISHED AS PAYMENTS
WERE MADE, BUT THE VALUE OF THE PROPERTY AS SECURITY ALSO STEADILY
DIMINISHED OVER TIME AS IT WAS PUT TO ITS INTENDED USE BY THE
PURCHASER. 

PLAINLY ENOUGH, THIS IS NOT A CASE WHERE THE PROPERTY SEQUESTERED BY
THE COURT IS EXCLUSIVELY THE PROPERTY OF THE DEFENDANT DEBTOR.  THE
QUESTION IS NOT WHETHER A DEBTOR'S PROPERTY MAY BE SEIZED BY HIS
CREDITOR, PENDENTE LITE, WHERE THEY HOLD NO PRESENT INTEREST IN THE
PROPERTY SOUGHT TO BE SEIZED.  THE REALITY IS THAT BOTH SELLER AND
BUYER HAD CURRENT, REAL INTERESTS IN THE PROERTY, AND THE DEFINITION OF
PROPERTY RIGHTS IS A MATTER OF STATE LAW.  RESOLUTION OF THE DUE
PROCESS QUESTION MUST TAKE ACCOUNT NOT ONLY OF THE INTERESTS OF THE
BUYER OF THE PROPERTY BUT THOSE OF THE SELLER AS WELL. 

WITH THIS DUALITY IN MIND, WE ARE CONVINCED THAT THE LOUISIANA
SEQUESTRATION PROCEDURE IS NOT INVALID, EITHER ON ITS FACE OR AS
APPLIED.  SEQUESTRATION UNDER THE LOUISIANA STATUTES IS THE MODERN
COUNTERPART OF AN ANCIENT CIVIL LAW DEVICE TO RESOLVE CONFLICITING
CLAIMS TO PROPERTY.  HISTORICALLY, THE TWO PRINCIPAL CONCERN HAVE BEEN
THAT, PENDING RESOLUTION OF THE DISPUTE, THE PROPERTY WOULD DETERIORATE
OR BE WASTED IN THE HANDS OF THE POSSESSOR AND THAT THE LATTER MIGHT
SELL OR OTHERWISE DISPOSE OF THE GOODS.  A MINOR THEME WAS THAT
OFFICIAL INTERVENTION WOULD FORESTALL VIOLENT SELF-HELP AND
RETALIATION.  SEE MILLAR, JUDICIAL SEQUESTRATION IN LOUISIANA:  SOME
ACCOUNT OF ITS SOURCES, 30 TUL.  L. REV. 201, 206 (1956). 

LOUISIANA STATUTES PROVIDE FOR SEQUESTRATION WHERE "ONE CLAIMS THE
OWNERSHIP OR RIGHT TO POSSESSION OF PROPERTY, OR A MORTGAGE, LIEN, OR
PRIVILEGE THEREON . . . IF IT IS WITHIN THE POWER OF THE DEFENDANT TO
CONCEAL, DISPOSE OF, OR WASTE THE PROPERTY OR THE REVENUES THEREFROM,
OR REMOVE THE PROPERTY FROM THE PARISH, DURING THE PENDENCY OF THE
ACTION."  ART. 3571.  THE WRIT, HOWEVER, WILL NOT ISSUE ON THE
CONCLUSORY ALLEGATION OF OWNERSHIP OR POSSESSORY RIGHTS.  ARTICLE 3501
/4/ PROVIDES THAT THE WRIT OF SEQUESTRATION SHALL ISSUE "ONLY WHEN THE
NATURE OF THE CLAIM AND THE AMOUNT THEREOF, IF ANY, AND THE GROUNDS
RELIED UPON FOR THE ISSUANCE OF THE WRIT CLEARLY APPEAR FROM SPECIFIC
FACTS" SHOWN BY A VERIFIED PETITION OR AFFIDAVIT.  IN THE PARISH WHERE
THIS CASE AROSE, THE CLEAR SHOWING REQUIRED MUST BE MADE TO A JUDGE,
/5/  AND THE WRIT WILL ISSUE ONLY UPON HIS AUTHORIZATION AND ONLY AFTER
THE CREDITOR SEEKING THE WRIT HAS FILED A SUFFICIENT BOND /6/  TO
PROTECT THE VENDEE AGAINST ALL DAMAGES IN THE EVENT THE SEQUESTRATION
IS SHOWN TO HAVE BEEN IMPROVIDENT.  /7/  ARTS. 3501 AND 3574. 

THE WRIT IS OBTAINABLE ON THE CREDITOR'S EX PARTE APPLICATION,
WITHOUT NOTICE TO THE DEBTOR OR OPPORUNITY FOR A HEARING, BUT THE
STATUTE ENTITLES THE DEBTOR IMMEDIATELY TO SEEK DISSOLUTION OF THE
WRIT, WHICH MUST BE ORDERED UNLESS THE CREDITOR "PROVES THE GROUNDS
UPON WHICH THE WRIT WAS ISSUED,"  ART. 3506, THE EXISTENCE OF THE DEBT,
LIEN, AND DELINQUENCY, FAILING WHICH THE COURT MAY ORDER RETURN OF THE
PROPERTY AND ASSESS DAMAGES IN FAVOR OF THE DEBTOR, INCLUDING
ATTORNEY'S FEES.  /8/ 

THE DEBTOR, WITH OR WITHOUT MOVING TO DISSOLVE THE SEQUESTRATION,
MAY ALSO REGAIN POSSESSION BY FILING HIS OWN BOND TO PROTECT THE
CREDITOR AGAINST INTERIM DAMAGE TO HIM SHOULD HE ULTIMATELY WIN HIS
CASE AND HAVE JUDGMENT AGAINST THE DEBTOR FOR THE UNPAID BALANCE OF THE
PURCHASE PRICE WHICH WAS THE OBJECT OF THE SUIT AND OF THE
SEQUESTRATION.  ARTS. 3507 AND 3508.  /9/ 

IN OUR VIEW, THIS STATUTORY PROCEDURE EFFECTS A CONSTITUTIONAL
ACCOMMODATION OF THE CONFLICTING INTERESTS OF THE PARTIES.  WE CANNOT
ACCEPT PETITIONER'S BROAD ASSERTION THAT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT GUARANTEED TO HIM THE USE AND POSSESSION OF THE
GOODS UNTIL ALL ISSUES IN THE CASE WERE JUDICALLY RESOLVED AFTER FULL
ADVERSARY PROCEEDINGS HAD BEEN COMPLETED.  IT IS CERTAINLY CLEAR UNDER
THIS COURT'S PRECEDENTS THAT ISSUES CAN BE LIMITED IN ACTIONS FOR
POSSESSION.  INDEED, IN GRANT TIMBER & MFG. CO. V. GRAY, 236 U.S. 133
(1915) (HOLMES, J.), THE COURT UPHELD SUCH LIMITATIONS IN POSSESSORY
ACTIONS FOR REAL PROPERTY IN LOUISIANA.  SEE ALSO BIANCHI V. MORALES,
262 U.S. 170 (1923); LINDSEY V. NORMET, 405 U.S. 56 (1972). 
PETITIONER'S CLAIM MUST ACCORDINGLY BE NARROWED TO ONE FOR A HEARING ON
THE ISSUES IN THE POSSESSORY ACTION--DEFAULT, THE EXISTENCE OF A LIEN,
AND POSSESSION OF THE DEBTOR--BEFORE PROPERTY IS TAKEN. 

AS TO THIS CLAIM, THE SELLER HERE, WITH A VENDOR'S LIEN TO SECURE
PAYMENT OF THE UNPAID BALANCE OF PURCHASE PRICE, HAD THE RIGHT EITHER
TO BE PAID IN ACCORDANCE WITH HIS CONTRACT OR TO POSSESSION OF THE
GOODS FOR THE PURPOSE OF FORECLOSING HIS LIEN AND RECOVERING THE UNPAID
BALANCE.  BY COMPLAINT AND AFFIDAVIT, THE SELLER SWORE FACTS THAT WOULD
ENTITLE HIM TO IMMEDIATE POSSESSION OF THE GOODS UNDER HIS CONTRACT,
UNDIMINISHED IN VALUE BY FURTHER DETERIORATION THROUGH USE OF THE
PROPERTY BY THE BUYER.  WHOLLY ASIDE FROM WHETHER THE BUYER, WITH
POSSESSION AND POWER OVER THE PROPERTY, WILL DESTROY OR MAKE AWAY WITH
THE GOODS, THE BUYER IN POSSESSION OF CONSUMER GOODS WILL UNDENIABLY
PUT THE PROPERTY TO ITS INTENDED USE, AND THE RESALE VALUE OF THE
MERCHANDISE WILL STEADILY DECLINE AS IT IS USED OVER A PERIOD OF TIME. 
ANY INSTALLMENT SELLER ANTICIAPTES AS MUCH, BUT HE IS NORMALLY
PROTECTED BECAUSE THE BUYER'S INSTALLMENT PAYMENTS KEEP PACE WITH THE
DETERIORATION IN VALUE OF THE SECURITY.  CLEARLY, IF PAYMENTS CEASE AND
POSSESSION AND USE BY THE BUYER CONTINUE, THE SELLER'S INTEREST IN THE
PROPERTY AS SECURITY IS STEADILY AND IRRETRIEVABLY ERODED UNTIL THE
TIME AT WHICH THE FULL HEARING IS HELD. 

THE STATE OF LOUISIANA WAS ENTITLED TO RECOGNIZE THIS REALITY AND TO
PROVIDE SOMEWHAT MORE PROTECTION FOR THE SELLER.  THIS IT DID IN
ORLEANS PARISH BY AUTHORIZING THE SEQUESTRATION OF PROPERTY BY A
JUDGE.  AT THE SAME TIME, THE BUYER BEING DEPRIVED OF POSSESSION, THE
SELLER WAS REQUIRED TO PUT UP A BOND TO GUARANTEE THE BUYER AGAINST
DAMAGER OR EXPENSE, INCLUDING ATTORNEY'S FEES, IN THE EVENT THE
SEQUESTRATION IS SHOWN TO BE MISTAKEN OR OTHERWISE IMPROVIDENT.  THE
BUYER IS PERMITTED TO REGAIN POSSESSION BY PUTTING UP HIS OWN BOND TO
PROTECT THE SELLER.  ABSENT THAT BOND, WHICH PETITIONER DID NOT FILE IN
THIS CASE, THE SELLER WOULD BE UNPROTECTED AGAINST THE INEVITABLE
DETERIORATION IN THE VALUE OF HIS SECURITY IF THE BUYER REMAINED IN
POSSESSION PENDING TRIAL ON THE MERITS.  THE DEBTOR, UNLIKE THE
CREDITOR, DOES NOT STAND READY TO MAKE THE OPPOSING PARTY WHOLE, IF HIS
POSSESSION, PENDING A PRIOR HEARING, TURNS OUT TO BE WRONGFUL. 

SECOND, THERE IS THE REAL RISK THAT THE BUYER, WITH POSSESSION AND
POWER OVER THE GOODS, WILL CONCEAL OR TRANSFER THE MERCHANDISE TO THE
DAMAGE OF THE SELLER.  THIS IS ONE OF THE CONSIDERATIONS WEIGHED IN THE
BALANCE BY THE LOUISIANA LAW IN PERMITTING INITIAL SEQUESTRATION OF THE
PROPERTY.  AN IMPORTANT FACTOR IN THIS CONNECTION IS THAT UNDER
LOUISIANA LAW, THE VENDOR'S LIEN EXPIRES IF THE BUYER TRANSFERS
POSSESSION.  IT FOLLOWS THAT IF THE VENDOR IS TO RETAIN HIS LIEN,
SUPERIOR TO THE RIGHTS OF OTHER CREDITORS OF THE BUYER, IT IS
IMPERATIVE THEN DEFAULT OCCURS THAT THE PROPERTY BE SEQUESTERED IN
ORDER TO FORECLOSE THE POSSIBILITY THAT THE BUYER WILL SELL OR
OTHERWISE CONVEY THE PROPERTY TO THIRD PARTIES AGAINST WHOM THE
VENDOR'S LIEN WILL NO SURVIVE.  THE DANGER OF DESTRUCTION OR ALIENATION
CANNOT BE GUARDED AGAINST IF NOTICE AND A HEARING BEFORE SEIZURE ARE
SUPPLIED.  THE NOTICE ITSELF MAY FURNISH A WARNING TO THE DEBTOR ACTING
IN BAD FAITH. 

THIRD, THERE IS SCANT SUPPORT IN OUR CASES FOR THE PROPOSITION THAT
THERE MUST BE FINAL JUDICIAL DETERMINATION OF THE SELLER'S ENTITLEMENT
BEFORE THE BUYER MAY BE EVEN TEMPORARILY DEPRIVED OF POSSESSION OF THE
PURCHASED GOODS.  ON THE CONTRARY, IT SEEMS APPARENT THAT THE SELLER
WITH HIS OWN INTEREST IN THE DISPUTED MERCHANDISE WOULD NEED TO
ESTABLISH IN ANY EVENT ONLY THE PROBABILITY THAT HIS CASE WILL SUCCEED
TO WARRANT THE BONDED SEQUESTRATION OF THE PROPERTY PENDING OUTCOME OF
THE SUIT.  CF. BELL V. BURSON, 402 U.S. 535 (1971); EWING V. MYTINGER &
CASSELBERRY, 339 U.S. 594 (1950).  THE ISSUE AT THIS STAGE OF THE
PROCEEDINGS CONCERNS POSESSION PENDING TRIAL AND TURNS ON THE EXISTENCE
OF THE DEBT, THE LIEN, AND THE DELINQUENCY.  THESE ARE ORDINARILY
UNCOMPLICATED MATTERS THAT LEND THEMSELVES TO DOCUMENTARY PROOF; AND WE
THINK IT COMPORTS WITH DUE PROCESS TO PERMIT THE INITIAL SEIZURE ON
SWORN EX PARTE DOCUMENTS, FOLLOWED BY THE EARLY OPPORUNITY TO PUT THE
CREDITOR TO HIS PROOF.  THE NATURE OF THE ISSUES AT STAKE MINIMIZES THE
RISK THAT THE WRIT WILL BE WRONGFULLY ISSUED BY A JUDGE.  THE POTENTIAL
DAMAGES AWARD AVAILABLE, IF THERE IS A SUCCESSFUL MOTION TO DISSOLVE
THE WRIT, AS WELL AS THE CREDITOR'S OWN INTEREST IN AVOIDING
INTERRUPTING THE TRANSACTION, ASLO CONTRIBUTES TO MINIMIZING THIS
RISK. 

FOURTH, WE REMAIN UNCONVINCED THAT THE IMPACT ON THE DEBTOR OF
DEPRIVATION OF THE HOUSEHOLD GOODS HERE IN QUESTION OVERRIDES HIS
INABILITY TO MAKE THE CREDITOR WHOLE FOR WRONGFUL POSSESSION, THE RISK
OF DESTRUCTION OR ALIENATION IF NOTICE AND A PRIOR HEARING ARE
SUPPLIED, AND THE LOW RISK OF A WRONGFUL DETERMINATION OF POSSESSION
THROUGH THE PROCEDURES NOW EMPLOYED. 

FINALLY, THE DEBTOR MAY IMMEDIATELY HAVE A FULL HEARING ON THE
MATTER OF POSSESSION FOLLOWING THE EXECUTION OF THE WRIT, THUS CUTTING
TO A BARE MINIMUM THE TIME OF CREDITOR- OR COURT-SUPERVISED
POSSESSION.  THE DEBTOR IN THIS CASE, WHO DID NOT AVAIL HIMSELF OF THIS
OPPORUNITY, CAN HARDLY EXPECT THAT HIS ARGUMENT ON THE SEVERITY OF
DEPRIVATION WILL CARRY MUCH WEIGHT, AND EVEN ASSUMING THAT THERE IS
REAL IMPACT ON THE DEBTOR FROM, LOSS OF THESE GOODS, PENDING THE
HEARING ON POSSESSION, HIS BASIC SOURCE OF INCOME IS UNIMPAIRED. 

THE REQUIREMENTS OF DUE PROCESS OF LAW "ARE NOT TECHNICAL, NOR IS
ANY PARTICULAR FORM OF PROCEDURE NECESSARY."  INLAND EMPIRE COUNCIL V.
MILLIS, 325 U.S. 697, 710 (1945).  DUE PROCESS OF LAW GUARANTEES "NO
PARTICULAR FORM OF PROCEDURE; IT PROTECTS SUBSTANTIAL RIGHTS."  NLRB V.
MACKAY CO., 304 U.S. 333, 351 (1938).  "THE VERY NATURE OF DUE PROCESS
NEGATES ANY CONCEPT OF INFLEXIBLE PROCEDURES UNIVERSALLY APPLICABLE TO
EVERY IMAGINABLE SITUATION."  CAFETERIA WORKERS V. MCELROY, 367 U.S.
88L, 895 (1961); STANLEY V. ILLINOIS, 405 U.S. 645, 650 (1972). 
CONSIDERING THE LOUISIANA PROCEDURE AS A WHOLE, WE ARE CONVINCED THAT
THE STATE HAS REACHED A CONSTITUTIONAL ACCOMMODATION OF THE RESPECTIVE
INTERESTS OF BUYER AND SELLER. 

        III 

PETITIONER ASSERTS THAT HIS RIGHT TO A HEARING BEFORE HIS POSSESSION
IS IN ANY WAY DISTURBED IS NONETHELESS MANDATED BY A LONG LINE OF CASES
IN THIS COURT, CULMINATING IN SNIADACH V. FAMILY FINANCE CORP., 395
U.S. 337 (1969), AND FUENTES V. SHEVIN, 407 U.S. 67 (1972).  THE PRE
SNIADACH CASES ARE SAID BY PETITIONER TO HOLD THAT "THE OPPORUNITY TO
BE HEARD MUST PRECEDE ANY ACTUAL DEPRIVATION OF PRIVATE PROPERTY." 
/10/  THEIR IMPORT, HOWEVER, IS NOT SO CLEAR AS PETITIONER WOULD HAVE
IT: THEY MERELY STAND FOR THE PROPOSITION THAT A HEARING MUST BE HAD
BEFORE ONE IS FINALLY DEPRIVED OF HIS PROPERTY AND DO NOT DEAL AT ALL
WITH THE NEED FOR A PRETERMINATION HEARING WHERE A FULL AND IMMEDIATE
POST-TERMINATION HEARING IS PROVIDED.  THE USUAL RULE HAS BEEN "(WHERE
ONLY PROPERTY RIGHTS ARE INVOLVED, MERE POSTPONEMENT OF THE JUDICIAL
ENQUIRY IS NOT A DENIAL OF DUE PROCESS, IF THE OPPORUNITY GIVEN FOR
ULTIMATE JUDICIAL DETERMINATION OF LIABILITY IS ADEQUATE."  PHILLIPS V.
COMMISSIONER, 283 U.S. 589, 596 - 597 (1931).  SEE ALSO SCOTTISH UNION
& NATIONAL INS. CO. V. BOWLAND, 196 U.S. 611, 632 (1905); SPRINGER V.
UNITED STATES, 102 U.S 586, 593 - 594 (1881).  THIS GENERALITY SUFFICED
TO DECIDE RELATIVELY MODERN CASES.  FOR EXAMPLE, IN EWING V. MYTINGER &
CASSELBERRY, 339 U.S. 594 (1950), THE STATUTE AT ISSUE PERMITTED
MULTIPLE SEIZURES OF MISBRANDED ARTICLES IN COMMERCE "'WHEN THE
ADMINISTRATOR HAS PROBABLE CAUSE TO BELIEVE FROM FACTS FOUND, WITHOUT
HEARING, BY HIM OR ANY OFFICER OR EMPLOYEE OF THE AGENCY THAT THE
MISBRANDED ARTICLE . . . WOULD BE IN A MATERIAL RESPECT MISLEADING TO
THE INJURY OR DAMAGE OF THE PURCHASER OR CONSUMER.'"  ID., AT 595 -
596.  THE SPECIFIC SEIZURE CHALLENGED, MADE ADMINISTRATIVELY WITHOUT
PRIOR NOTICE OR HEARING, CONCERNED A CONCENTRATE OF ALFALFA,
WATERCRESS, PARSLEY, AND SYNTHETIC VITAMINS, COMBINED IN A PACKAGE WITH
MINERAL TABLETS.  THERE WAS NO CLAIM OR SUGGESTION OF ANY POSSIBLE
THREAT TO HEALTH.  THE SOLE OFFICIAL CLAIM WAS THAT THE LABELING WAS
MISLEADING TO THE ALLEGED DAMAGE OF THE PURCHASER.  THE COURT SUSTAINED
THE EX PARTE SEIZURE SAYING THAT "(WE HAVE REPEATEDLY HELD THAT NO
HEARING AT THE PRELIMINARY STAGE IS REQUIRED BY DUE PROCESS SO LONG AS
THE REQUISITE HEARING IS HELD BEFORE THE FINAL ADMINISTRATIVE ORDER
BECOMES EFFECTIVE."  ID., AT 598.  "IT IS SUFFICIENT, WHERE ONLY
PROPERTY RIGHTS ARE CONCERNED, THAT THERE IS AT SOME STAGE AN
OPPORUNITY FOR A HEARING AND A JUDICIAL DETERMINATION."  ID., AT 599. 
/11/ 

MORE PRECISELY IN POINT, THE COURT HAD UNANIMOUSLY APPROVED
PREJUDGMENT ATTACHMENT LIENS EFFECTED BY CREDITORS, WITHOUT NOTICE,
HEARING, OR JUDICIAL ORDER, SAYING THAT "NOTHING IS MORE COMMON THAN TO
ALLOW PARTIES ALLEGING THEMSELVES TO BE CREDITORS TO ESTABLISH IN
ADVANCE BY ATTACHMENT A LIEN DEPENDENT FOR ITS EFFECT UPON THE RESULT
OF THE SUIT."  "THE FACT THAT THE EXECUTION IS ISSUED IN THE FIRST
INSTANCE BY AN AGENCT OF THE STATE BUT NOT FROM A COURT, FOLLOWED AS IT
BY PERSONAL NOTICE AND A RIGHT TO TAKE THE CASE INTO COURT, IS A
FAMILIAR METHOD IN GEORGIA AND IS OPEN TO NO OBJECTION."  COFFIN BROS.
V. BENNETT, 277 U.S. 29, 31 (1928).  TO THE SAME EFFECT WAS THE EARLIER
CASE OF OWNBEY V. MORGAN, 256 U.S. 94 (1921).  FURTHERMORE, BASED ON
OWNBEY AND COFFIN, THE COURT LATER SUSTAINED THE CONSTITUTIONALITY OF
THE MAINE ATTACHMENT STATUTE.  MCKAY V. MCINNES, 279 U.S. 820 (1929). 
IN THAT CASE, A NONRESIDENT OF MAINE SUED IN THE MAINE COURTS TO
COLLECT A DEBT FROM A RESIDENT OF THE STATE.  AS PERMITTED BY STATUTE,
AND AS AN INTEGRAL PART OF INSTITUTING THE SUIT, THE CREDITOR ATTACHED
THE PROPERTIES OF THE DEFENDANT, WITHOUT NOTICE AND WITHOUT JUDICIAL
PROCESS OF ANY KIND.  IN SUSTAINING THE PROCEDURE, THE MAINE SUPREME
COURT, 127 ME. 110, 141 A. 699 (1928), DESCRIBED THE ATTACHMENT AS
DESIGNED TO CREATE A LIEN FOR THE CREDITOR TO SECURE TO THE CREDITOR
THE PROPERTY WHICH THE DEBTOR HAS AT THE TIME IT IS MADE SO THAT IT MAY
BE SEIZED AND LEVIED UPON IN SATISFACTION OF THE DEBT AFTER JUDGMENT
AND EXECUTION MAY BE OBTAINED."  ID., AT 115, 141 A., AT 702.  THE
ATTACHMENT WAS DEEMED "PART OF THE REMEDY PROVIDED FOR THE COLLECTION
OF THE DEBT,"  IBID., AND REPRESENTED A PRACTICE THAT "HAD BECOME FULLY
ESTABLISHED IN MASSACHUSETTS, PART OF WHICH MAINED WAS THE TIME OF THE
ADOPTION OF THE FEDERAL CONSITUTION."  ID., AT 114, 141 A., AT 702. 
THE JUDGMENT OF THE MAINE COURT WAS AFFIRMED WITHOUT OPINION, CITING
OWNBEY AND COFFIN. 

IN SNIADACH V. FAMILY FINANCE CORP., SUPRA, IT WAS SAID THAT MCKEY
AND LIKE CASES DEALT WITH "(A) PROCEDURAL RULE THAT MAY SATISFY DUE
PROCESS FOR ATTACHMENTS IN GENERAL"  BUT ONE THAT WOULD NOT
"NECESSARILY SATISFY PROCEDURAL DUE PROCESS IN EVERY CASE," NOR ONE
THAT "GIVES NECESSARY PROTECTION TO ALL PROPERTY IN ITS MODERN FORMS." 
395 U.S., AT 340.  SNIADACH INVOLVED THE PREJUDGMENT GARNISHMENT OF
WIRES--"A SPECIALIZED TYPE OF PROPERTY PRESENTING DISTINCT PROBLEMS IN
OUR ECONOMIC SYSTEM."  IBIS.  BECAUSE "(THE LEVERAGE OF THE CREDITOR ON
THE WAGE EARNER IS ENORMOUS" AND BECAUSE "PREJUDGMENT GARNISHMENT OF
THE WISCONSIN TYPE MAY AS A PRACTICABLE MATTER DRIVE A WAGE-EARNING
FAMILY TO THE WALL," IT WAS HELD THAT THE DUE PROCESS CLAUSE FORBADE
SUCH GARNISHMENT ABSENT NOTICE AND PRIOR HEARING.  ID., AT 341 - 342. 
IN SNIADACH, THE COURT ALSO OBSERVED THAT GARNISHMENT WAS SUBJECT TO
ABUSE BY CREDITOR WITHOUT VAILD CLAIMS, A RISK MINIMIZED BY THE NATURE
OF THE SECURITY INTEREST THERE AT STAKE AND THE PROTECTIONS TO THE
DEBTOR OFFERED BY LOUISIANA PROCEDURE.  NOR WAS IT APPARENT IN SNIADACH
WITH WHAT SPEED THE DEBTOR COULD CHALLENGE THE VALIDITY OF THE
GARNISHMENT, AND OBVIOUSLY THE CREDITOR'S CLAIM COULD NOT REST ON THE
DANGER OF DESTRUCTION OF WAGES, THE PROPERTY SEIZED, SINCE THEIR
AVAILABILITY TO SATISFY THE DEBT REMAINED WITHIN THE POWER OF THE
DEBTOR WHO COULD SIMPLY LEAVE HIS JOB.  THE SUING CREDITOR IN SNIADACH
HAD NO PRIOR INTEREST IN THE PROPERTY ATTACHED, AND THE OPINION DID NOT
PURPORT TO GOVERN THE TYPICAL CASE OF THE INSTALLMENT SELLER WHO BRINGS
A SUIT TO COLLECT AN UNPAID BALANCE AND WHO DOES NOT SEEK TO ATTACH
WAGES PENDING THE OUTCOME OF THE SUIT BUT TO REPOSSESS THE SOLD
PROPERTY ON WHICH HE HAD RETAINED A LIEN TO SECURE THE PURCHASED
PRICE.  THIS VERY CASE SOON CAME BEFORE THE COURT IN FUENTES V. SHEVIN,
WHERE THE CONSTITUTIONALITY OF THE FLORIDA AND PENNSYLVANIA REPLEVIN
STATUTE WAS AT ISSUE.  THOSE STATUTE PERMITTED THE SECURED INSTALLMENT
SELLER TO REPOSSESS THE GOODS SOLD, WITHOUT NOTICE OR HEARING AND
WITHOUT JUDICIAL ORDER OR SUPERVISION, BUT WITH THE HELP OF THE SHERIFF
OPERATING UNDER A WRIT ISSUED BY THE COURT CLERK AT THE BEHEST OF THE
SELLER.  BECAUSE CARRIED OUT WITHOUT NOTICE OR OPPORUNITY FOR HEARING
AND WITHOUT JUDICIAL PARTICIPATION, THIS KIND OF SEIZURE WAS HELD
VIOLATIVE OF THE DUE PROCESS CLAUSE.  THIS HOLDING IS THE MAINSTAY OF
PETITIONER'S SUBMISSION HERE.  BUT WE ARE CONVINCED THAT FUENTES WAS
DECIDED AGAINST A FACTUAL AND LEGAL BACKGROUND SUFFICIENTLY DIFFERENT
FROM THAT NOW BEFORE US AND THAT IT DOES NOT REQUIRE THE INVALIDATION
OF THE LOUISIANA SEQUESTRATION STATUTE, EITHER ON ITS FACE OR AS
APPLIED IN THIS CASE. 

THE FLORIDA LAW UNDER EXAMINATION IN FUENTES AUTHORIZED REPOSSESSION
OF THE SOLD GOODS WITHOUT JUDICIAL ORDER, APPROVAL, OR PARTICIPATION. 
A WRIT OF REPLEVIN WAS EMPLOYED, BUT IT WAS ISSUED BY THE COURT CLERK. 
AS THE FLORIDA LAW WAS PERCEIVED BY THIS COURT, "(THERE IS NO
REQUIREMENT THAT THE APPLICANT MAKE A CONVINCING SHOWING BEFORE THE
SEIZURE," 407 U.S., AT 73 - 74; THE LAW REQUIRED ONLY "THE BARE
ASSERTION OF THE PARTY SEEKING THE WRIT THAT HE IS ENTITLED TO ONE" AS
A CONDITION TO THE CLERK'S ISSUANCE OF THE WRIT.  ID., AT 74.  THE
COURT ALSO SAID THAT UNDER THE STATUTE THE DEFENDANT-BUYER WOULD
"EVENTUALLY" HAVE AN OPPORUNITY FOR A HEARING, "AS THE DEFENDANT IN THE
TRIAL OF THE COURT ACTION FOR REPOSSESSION . . . ."  ID., AT 75.  THE
PENNSYLVANIA LAW WAS CONSIDERED TO BE ESSENTIALLY THE SAME AS THAT OF
FLORIDA EXCEPT THAT IT DID "NOT REQUIRE THAT THERE EVER BE OPPORTUNITY
FOR A HEARING ON THE MERITS OF THE CONFLICTING CLAIMS TO POSSESSION OF
THE REPLEVIED PROPERTY."  ID., AT 77.  THE PARTY SEEKING THE WRIT WAS
NOT OBLIGED TO INITIATE A COURT ACTION FOR REPOSSESSION, WAS NOT
REQUIRED FORMALLY TO ALLEGE THAT HE WAS ENTITLE TO THE PROPERTY AND HAD
ONLY FILE AN AFFIDAVIT OF THE VALUE OF THE PROPERTY SOUGHT TO BE
REPLEVIED.  THE COURT DISTINGUISHED THE PENNSYLVANIA AND FLORIDA
PROCEDURES FROM THAT OF THE COMMON LAW WHERE THE COURT SAID, "A STATE
OFFICIAL MADE AT LEAST A SUMMARY DETERMINATION OF THE RELATIVE RIGHTS
OF THE DISPUTING PARTIES BEFORE STEPPING INTO THE DISPUTE AND TAKING
GOODS FROM ONE OF THEM."  ID., AT 80. 

THE LOUISIANA SEQUESTRATION STATUTE FOLLOWED IN THIS CASE MANDATES A
CONSIDERABLY DIFFERENT PROCEDURE.  A WRIT OF SEQUESTRATION IS AVAILABLE
TO A MORTGAGE OR LIEN HOLDER TO FORESTALL WASTE OR ALIENATION OF THE
PROPERTY, BUT, DIFFERENT FROM THE FLORIDA AND PENNSYLVANIA SYSTEMS,
BARE, CONCLUSORY CLAIMS OF OWNERSHIP OR LIEN WILL NOT SUFFICE UNDER THE
LOUISIANA STATUTE.  ARTICLE 3501 AUTHORIZES THE WRIT "ONLY WHEN THE
NATURE OF THE CLAIM AND THE AMOUNT THEREOF, IF ANY, AND THE GROUNDS
RELIED UPON FOR THE ISSUANCE OF THE WRIT CLEARLY APPEAR FROM SPECIFIC
FACTS" SHOWN BY VERIFIED PETITION OR AFFIDAVIT.  MOREOVER, IN THE
PARISH WHERE THIS CASE AROSE, THE REQUISITE SHOWING MUST BE MADE TO A
JUDGE, AND JUDICIAL AUTHORIZATION OBTAINED.  MITCHELL WAS NOT AT THE
UNSUPERVISED MERCY OF THE CREDITOR AND COURT FUNCTIONARIES.  THE
LOUISIANA LAW PROVIDES FOR JUDICIAL CONTROL OF THE PROCESS FROM
BEGINNING TO END.  /12/  THIS CONTROL IS ONE OF THE MEASURES ADOPTED BY
THE STATE TO MINIMIZE THE RISK THAT THE EX PARTE PROCEDURE WILL LEAD TO
A WRONGFUL TAKING.  IT IS BUTTRESSED BY THE PROVISION THAT SHOULD THE
WRIT BE DISSOLVED THERE ARE "DAMAGES FOR THE WRONGFUL ISSUANCE OF A
WRIT" AND FOR ATTORNEY'S FEES "WHETHER THE WRIT IS DISSOLVED ON MOTION
OR AFTER TRIAL ON THE MERITS."  ART. 3506. 

THE RISK OF WRONGFUL USE OF THE PROCEDURE MUST ALSO BE JUDGED IN THE
CONTEXT OF THE ISSUES WHICH ARE TO BE DETERMINED AT THAT PROCEEDING. 
IN FLORIDA AND PENNSYLVANIA PROPERTY WAS ONLY TO BE REPLEVIED IN ACCORD
WITH STATE POLICY IF IT HAD BEEN "WRONGFULLY DETAINED."  THIS BROAD
"FAULT" STANDARD IS INHERENTLY SUBJECT TO FACTUAL DETERMINATION AND
ADVERSARIAL INPUT.  AS IN BELL V. BURSON, WHERE A DRIVER'S LICENSE WAS
SUSPENDED WITHOUT A PRIOR HEARING, WHEN THE SUSPENSION WAS PREMISED ON
A FAULT STANDARD, SEE VLANDIS V. KLINE, 412 U.S. 441, 446 - 447 (1973),
IN FUENTES THIS FAULT STANDARD FOR REPLEVIN WAS THOUGHT ILL-SUITED FOR
PRELIMINARY EX PARTE DETERMINATION.  IN LOUISIANA, ON THE OTHER HAND,
THE FACTS RELEVANT TO OBTAINING A WRIT OF SEQUESTRATION ARE NARROWLY
CONFINED.  AS WE HAVE INDICATED, DOCUMENTARY PROOF IS PARTICULARLY
SUITED FOR QUESTIONS OF THE EXISTENCE OF A VENDOR'S LICENSE LIEN AND
THE ISSUE OF DEFAULT.  THERE IS THUS FAR LESS DANGER HERE THAT THE
SEIZURE WILL BE MISTAKEN AND A CORRESPONDING DECREASE IN THE UTILITY OF
AN ADVERSARY HEARING WHICH WILL BE IMMEDIATELY AVAILABLE IN ANY EVENT. 

OF COURSE, AS IN FUENTES, CONSIDERATION OF THE IMPACT ON THE DEBTOR
REMAINS.  UNDER LOUISIANA PROCEDURE, HOWEVER, THE DEBTOR, MITCHELL, WAS
NOT LEFT IN LIMBO TO AWAIT A HEARING THAT MIGHT OR MIGHT NOT
"EVENTUALLY" OCCUR, AS HE WAS UNDER THE STATUTORY SCHEMES BEFORE THE
COURT IN FUENTES.  LOUISIANA LAW EXPRESSLY PROVIDES FOR AN IMMEDIATE
HEARING AND DISSOLUTION OF THE WRIT "UNLESS THE PLAINTIFF PROVES THE
GROUNDS UPON WHICH THE WRIT WAS ISSUED."  ART. 3506.     TO SUMMARIZE,
THE LOUISIANA SYSTEM SEEKS TO MINIMIZE THE RISK OF ERROR OF A WRONGFUL
INTERIM POSSESSION BY THE CREDITOR.  THE SYSTEM PROTECTS THE DEBTOR'S
INTEREST IN EVERY CONCEIVABLE WAY, EXCEPT ALLOWING HIM TO HAVE THE
PROPERTY TO START WITH, AND THIS IS DONE IN PURSUIT OF WHAT WE DEEM AN
ACCEPTABLE ARRANGEMENT PENDENTE LITE TO PUT THE PROPERTY IN THE
POSSESSION OF THE PARTY WHO FURNISHES PROTECTION AGAINST THE LOSS OR
DAMAGE TO THE OTHER PENDING TRIAL ON THE MERITS. 

THE COURT MUST BE SENSITIVE TO THE POSSIBLE CONSEQUENCES, ALREADY
FORESEEN IN ANTIQUITY, OF INVALIDATING THIS STATE STATUTE.  DOING SO
MIGHT NO INCREASE PRIVATE VIOLENCE, BUT SELF-HELP REPOSSESSION COULD
EASILY LESSEN PROTECTIONS FOR THE DEBTOR.  SEE FOR EXAMPLE, ADAMS V.
SOUTHERN CALIFORNIA FIRST NATIONAL BANK, 492 F.2D 324 (CA9 1973).  /13/
HERE, THE INITIAL HARDSHIP TO THE DEBTOR IS LIMITED, THE SELLER HAS A
STRONG INTEREST, THE PROCESS PROCEEDS UNDER JUDICIAL SUPERVISION AND
MANAGEMENT, AND THE PREVAILING PARTY IS PROTECTED AGAINST ALL LOSS. 
OUR CONSLUSION IS THAT THE LOUISIANA STANDARDS REGULATING THE USE OF
THE WRIT OF SEQUESTRATION ARE CONSTITUTIONAL.  MITCHELL WAS NOT
DEPRIVED OF PROCEDURAL DUE PROCESS IN THIS CASE.  /14/  THE JUDGMENT OF
THE SUPREME COURT OF LOUISIANA IS AFFIRMED. 

              SO ORDERED. 

/1/  THE MOTION ASKED FOR DISSOLUTION OF THE WRIT WITH RESPECT TO THE
REFRIGERATOR, STOVE, AND WASHER.  FOR SOME REASON, UNEXPLAINED BY THE
PARTIES, THE MOTION WAS NOT ADDRESSED TO THE STEREO. 

/2/  THERE IS SOME DISPUTE BETWEEN THE PARTIES AS TO WHEN THE WRIT
WAS ACTUALLY EXECUTED BY THE SHERIFF.  THE SHERIFF'S RETURN, FURNISHED
BY PETITIONER BUT APPARENTLY NOT IN THE RECORD BELOW, INDICATES THAT
EXECUTION WAS ON THE 18TH OF FEBRUARY, RATHER THAN ON THE 7TH.  THE
LOUISIANA SUPREME COURT ASSUMED THAT THE WRIT WAS EXECUTED ON THE 7TH. 
BECAUSE WE SEE NO LEGAL CONSEQUENCE ATTACHING TO A CHOICE OF DATES, WE
ASSUME FOR PURPOSES OF DECISION THAT THE WRIT WAS EXECUTED ON THE 7TH. 

/3/  ARTICLE 2373 AND OTHER PERTINENT PROVISIONS OF THE CODE,
INCLUDING THOSE REFERRED TO IN THE TEXT, ARE SET OUT IN THE APPENDIX TO
THIS OPINION. 

/4/  HISTORICALLY, THE WRIT WOULD ISSUE ONLY IF THE CREDITOR HAD
"GOOD REASON TO FEAR" THAT THE DEBTOR WOULD DAMAGE, ALIENATE OR WASTE
THE GOODS, AND THE CREDITOR WAS REQUIRED TO SHOW THE GROUNDS FOR SUCH
FEAR.  UNDER PRESENT LAW, HOWEVER, THE APPREHENSION OF THE CREDITOR IS
NO LONGER THE ISSUE, AND THE WRIT MAY BE OBTAINED WHEN THE GOODS ARE
WITHIN THE POWER OF THE DEBTOR.  REPORTER'S COMMENT (A) TO LA. CODE
COV.  PROC.  ANN., ART. 3571.  THE NECESSITY OF SHOWING SUCH "POWER" IS
NOT IRRELEVANT, BECAUSE THE VENDOR'S PRIVILEGE WILL NOT LIE AGAINST
GOODS NOT WITHIN THE "POWER" OF THE DEBTOR.  MARGOLIN, CIVIL LAW,
VENDOR'S PRIVILEGE, 4 TUL.  L. REV. 239 (1930); H. DAGGETT, ON
LOUISIANA PRIVILEGES AND CHATTEL MORTGAGES 51 (1942). 

/5/  ARTICLES 282 AND 283 OF THE CODE PROVIDE, GENERALLY, THAT THE
COURT CLERK MAY ISSUE WRITS OF SEQUESTRATION.  BUT ART. 281 CONFINES
THE AUTHORITY TO THE JUDGE IN ORLEANS PARISH.  THERE IS NO DISPUTE IN
THIS CASE THAT JUDICIAL AUTHORITY FOR THE WRIT WAS REQUIRED AND THAT IT
WAS OBTAINED AS THE STATUTE REQUIRES.  THE VALIDITY OF PRECEDURES
OBTAINING IN AREAS OUTSIDE ORLEANS PARISH IS NOT AT ISSUE. 

/6/  AS PREVIOUSLY NOTED, THE JUDGMENT PRAYED FOR IN THIS CASE WAS
IN THE AMOUNT OF $574.17.  GRANT WAS ORDERED TO FURNISH SECURITY IN THE
AMOUNT OF $1,125. 

/7/  WHEN A WRIT IS ISSUED BY THE JUDGE, IT IS SERVED UPON THE
DEBTOR BY THE SHERIFF, ART. 3504, WHO THEREAFTER BECOMES RESPONSIBLE
FOR THE PROPERTY'S SAFEKEEPING.  SEE JOHNSON, ATTACHMENT AND
SEQUESTRATION:  PROVISIONAL REMEDIES UNDER THE LOUISIANA CODE OF CIVIL
PROCEDURE, 38 TUL.  L. REV. 1, 21 - 22 (1963).  THE PLAINTIFF-CREDITOR,
HOWEVER, SEE ART. 3576, MAY HIMSELF TAKE POSSESSION OF THE GOODS IF THE
DEFENDANT WITHIN 10 DAYS DOES NOT SECURE POSSESSION OF THE GOODS BY
POSTING HIS OWN BOND AS PERMITTED BY ART. 3507, BUT HE HAS NO RIGHT TO
SELL THE GOODS UNTIL FINAL JUDGMENT ON THE MERITS.  ART. 3510. 

/8/  DAMAGES WOULD COMPENSATE FOR THE PERIOD DURING WHICH THE BUYER
WAS DEPRIVED OF THE USE OF THE PROPERTY, BUT ARE NOT RESTRICTED TO
PECUNIARY LOSS.  THEY MAY ENCOMPASS INJURY TO SOCIAL STANDING OR
REPUTATION AS WELL AS HUMILIATION AND MORTIFICATION.  JOHNSON, SUPRA,
N.7, AT 28. 

/9/  THE DEBTOR'S BOND NECESSARY TO REPOSSESS THE PROPERTY "SHALL
EXCEED BY ONE-FOURTH THE VALUE OF THE PROPERTY AS DETERMINED BY THE
COURT, OR SHALL EXCEED BY ONE-FOURTH THE AMOUNT OF THE CLAIM, WHICHEVER
IS THE LESSER."  ART. 3508. 

/10/  PETITIONER RELIES PARTICULARLY ON: COVEY V. TOWN OF SOMERS,
351 U.S. 141 (1956); NEW YORK V. N. Y., N. H. & H.R. CO., 344 U.S. 293
(1953); MULLANE V. CENTRAL HANOVER BANK & TRUST CO., 339 U.S. 306
(1950); GRIFFIN V. GRIFFIN, 327 U.S. 220 (1946); OPP COTTON MILLS V.
ADMINISTRATOR, 312 U.S. 126 (1941); WEST OHIO GAS CO. V. PUB. UTIL. 
COMM'N, 294 U.S. 63 (135); UNITED STATES V. ILLINOIS CENTRAL R. CO.,
291 U.S. 457 (1934); SOUTHERN R. CO. V. VIRGINIA, 290 U.S. 190 (1933);
GOLDSMITH V. BOARD OF TAX APPEALS, 270 U.S. 117 (1926); LONDONER V.
DENVER, 210 U.S. 373 (1908); CENTRAL OF GEORGIA R. CO. V. WRIGHT, 207
U.S. 127 (1907); ROLLER V. HOLLY, 176 U.S. 398 (1900); HOVEY V.
ELLIOTT, 167 U.S. 409 (1897); SCOTT V. MCNEAL, 154 U.S. 34 (1894);
WINDSOR V. MCVEIGH, 93 U.S. 274 (1876); RAY V. NORSEWORTHY, 23 WALL. 
128 (1875); REES V. CITY OF WATERTOWN, 19 WALL.  107 (1874); BALDWIN V.
HALE, 1 WALL.  223 (1864).  BRIEF FOR PETITIONER 10 - 11. 

/11/  CONCEDING THAT THE MULTIPLE SEIZRE MIGHT CAUSE IRREPARABLE
DAMAGE TO A BUSINESS, THE COURT RESPONDED:  "THE IMPACT OF THE
INITIATION OF JUDICIAL PROCEEDINGS IS OFTEN SERIOUS.  TAKE THE CASE OF
THE GRAND JURY.  IT RETURNS AN INDICTMENT AGAINST A MAN WITHOUT A
HEARING.  IT DOES NOT DETERMINE HIS GUILT; IT ONLY DETERMINES WHETHER
THERE IS PROBABLE CAUSE TO BELIEVE HE IS GUILT BUT THAT DETERMINATION
IS CONCLUSIVE ON THE ISSUE OF PROBABLE CAUSE.  AS A RESULT THE
DEFENDANT CAN ARRESTED AND HELD FOR TRIAL.  SEE BEAVERS V. HENKEL, 194
U.S. 73, 85; EX PARTE UNITED STATES, 287 U.S. 241, 250.  THE IMPACT OF
AN INDICTMENT IS ON THE REPUTATION OR LIBERTY OF A MAN.  THE SAME IS
TRUE WHERE A PROSECUTOR FILES AN INFORMATION CHARGING VIOLATIONS OF THE
LAW.  THE HARM TO PROPERTY AND BUSINESS CAN ALSO BE INCALCULABLE BY THE
MERE INSTITUTION OF PROCEEDINGS.  YET IT HAS NEVER BEEN HELD THAT THE
HAND OF GOVERNMENT MUST BE STAYED UNTIL THE COURTS HAVE AN OPPORUNITY
TO DETERMINE WHETHER THE GOVERNMENT IS JUSTIFIED IN INSTITUTING SUIT IN
THE COURTS.  DISCRETION OF ANY OFFICIAL MAY BE ABUSED.  YET IT IS NOT A
REQUIREMENT OF DUE PROCESS THAT THERE BE JUDICIAL INQUIRY BEFORE
DISCRETION CAN BE EXERCISED."  339 U.S., AT 599. 

/12/  THE APPROVAL OF A WRIT OF SEQUESTRATION IS NOT, AS PETITIONER
CONTENDS, A MERE MINISTERIAL ACT.  "SINCE A WRIT OF SEQUESTRATION
ISSUES WITHOUT A HEARING, SPECIFIC FACTS AS TO THE GROUNDS RELIED UPON
FOR ISSUANCE MUST BE CONTAINED IN THE VERIFIED PETITION IN ORDER THAT
THE ISSUING JUDGE CAN PROPERLY EVALUATE THE GROUNDS."  WRIGHT V.
HUGHES, 254 SO. 2D 293, 296 - 297 (LA. CT. APP. 1971) (ON REHEARING). 
TO THE SAME EFFECT IS HANCOCK BANK V. ALEXANDER, 256 LA. 643, 237 SO.
2D 669 (1970), WHERE THE COURT HELD THAT A SIMPLE ALLEGATION OF
INDEBTEDNESS FOR MONEY DUE ON AN AUTOMOBILE, WHERE NO DEED OF TRUDT WAS
REFERRED TO OR PRODUCED, DID NOT SATISFY THE "SPECIFIC FACTS" TEST. 
THE COURT STATED: 

"STRICT APPLICATION OF THE RULES ESTABLISHED FOR THE ISSUANCE OF
CONSERVATORY WRITS HAS BEEN UNIFORMLY REQUIRED BY THE COURTS IN THE
PAST.  IT IS IMPLICIT IN THOSE REMEDIES THAT THEY SHOULD NOT BE AVAILED
OF UNLESS THE CONDITIONS WHICH PERMIT THEM EXIST; THAT IS TO SAY, IT IS
A PREREQUISITE TO THEIR ISSUANCE THAT PROPER GROUNDS BE ALLEGED AND
SWORN TO."  ID., AT 653 - 654, 237 SO. 2D, AT 672.  (EMPHASIS ADDED.) 
ZION MERCANTILE CO. V. PIERCE, 163 LA. 477, 112 SO. 371 (1927), UPON
WHICH PETITIONER RELIES, IS NOT TO THE CONTRARY.  THE LOUISIANA COURT
MERELY HELD THERE THAT IT IS NOT NECESSARY TO "FILE" PAPERS REQUESTING
THE WRIT WITH THE CLERK, OR PAY COURT COSTS, BEFORE THE JUDGE IS
EMPOWERED TO ISSUE THE WRIT. 

/13/  THE ADVISABILITY OF REQUIRING PRIOR NOTICE AND HEARING BEFORE
REPOSSESSION HAS BEEN UNDER STUDY FOR SEVERAL YEARS.  A NUMBER OF
POSSIBILITIES HAVE BEEN PUT FORWARD TO MODIFY SUMMARY CREDITOR
REMEDIES, WHETHER TAKEN THROUGH SOME FORM OF COURT PROCESS OR OR
EFFECTED BY SELF-HELP UNDER ART. 9 OF THE UNIFORM COMMERCIAL CODE, 9 -
503.  INFLUENCED BY SNIADACH, AND PROVIDING PRESEIZURE NOTICE AND
HEARING, ARE TWO MODEL ACTS DRAFTED BY THE NATIONAL CONSUMER LAW
CENTER: NATIONAL CONSUMER ACT 5.206 - 5.208 (1970), AND MODEL CONSUMER
CREDIT ACT 7.205 (1973).  OTHER SIMILAR REFORMS ARE REFLECTED IN THE
REPORT OF THE NATIONAL COMMISSION ON CONSUMER FINANCE, CONSUMER CREDIT
IN THE UNITED STATES 30 - 31 (1972); THE WISCONSIN CONSUMER ACT, WIS.
STAT. ANN. 421.101 - 427.105 (SPECIAL PAMPHLET 1973); AND THE
AMENDMENTS TO THE ILLINOIS REPLEVIN STATUTE, PUBLIC ACT 78 - 287, ILL.
LAWS 1973.  LOOKING IN THE OTHER DIRECTION AND LEAVING SUMMARY
PROCEDURES INTACT FOR THE MOST PART ARE THE NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS, COMMITTEE ON UNIFORM CONSUMER
CREDIT CODE, UNIFORM CONSUMER CREDIT CODE, WORKING REDRAFT NO. 5, NOV.
1973, 5.110, 5.112; AND THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM
COMMERCIAL CODE, REVIEW COMMITTEE FOR ART. 9 OF THE UNIFORM COMMERCIAL
CODE, FINAL REPORT, 9 - 503 (APR. 25, 1971), TOGETHER WITH REVISED ART.
9 OF THE U.C.C., 1972 OFFICIAL TEXT AND COMMENTS, 9 - 503. 

AS REVEALED IN THE VARIOUS STUDIES AND PROPOSALS, THE PRINCIPAL
QUESTION YET TO BE SATISFACTORILY ANSWERED IS THE IMPACT OF PRIOR
NOTICE AND HEARING ON THE PRICE OF CREDIT, AND, MORE PARTICULARLY, OF
THE MIX OF PROCEDURAL REQUIREMETNS NECESSARY TO MINIMIZE THE COST.  THE
COMMENTATORS ARE IN THE THROES OF DEBATE, SEE, E. G., SYMPOSIUM,
CREDITOR'S RIGHTS, 47 S. CAL. L. REV. 1 - 164 (1973), AND BASIC
QUESTIONS REMAIN UNANSWERED.  SEE GENERALLY NOTE, SELF-HELP
REPOSSESSION; THE CONSTITUTIONAL ATTACK, THE LEGISLATIVE RESPONSE, AND
THE ECONOMIC IMPLICATIONS, 62 GEO. L. J. 273 (1973). 

WE INDICATE NO VIEW WHATSOEVER ON THE DESIRABILITY OF ONE OR MORE OF
THE PROPOSED REFORMS.  THE UNCERTAINITY EVIDENT IN THE CURRENT DEBATE
SUGGESTS CAUTION IN THE ADOPTION OF AN INFLEXIBLE CONSITUTIONAL RULE. 
OUR HOLDING IN THIS CASE IS LIMITED TO THE CONSTITUTIONALITY OF THE
LOUISIANA SEQUESTRATION PROCEDURES. 

/14/  WE ARE ADVISED BY COUNSEL FOR PETITIONER OF A TIDE OF CASES
FOLLOWING FUENTES AND ARE CAUTIONED THAT AFFIRMANCE IN THIS CASE WOULD
SET OFF A RIPTIDE WITH CONSIDERABLE CONSEQUENCES.  WE PRECEIVE NO SUCH
RESULT.  OUR DECISION WILL NOT AFFECT RECENT CASES DEALING WITH
GARNISHMENT OR SUMMARY SELF-HELP REMEDIES OF SECURED CREDITORS OR
LANDLORDS.  NOR IS IT AT ALL CLEAR, WITH AN EXCEPTION OR TWO, THAT THE
REPORTED CASES INVALIDATING REPLEVIN OR SIMILAR STATUTES DEALT WTIH
SITUATIONS WHERE THERE WAS JUDICIAL SUPERVISION OF SEIZURE OR
FORECLOSURE FROM THE OUTSET. 

        APPENDIX TO OPINION OF THE COURT

        STATUTES

 PROVISIONS OF THE LOUISIANA CODE OF CIVIL PROCEDURE 

ART. 281.  CERTAIN ARTICLES NOT APPLICABLE TO CIVIL DISTRICT COURT
FOR THE PARISH OF ORLEANS 

THE PROVISIONS OF ARTICLES 282 THROUGH 286 DO NOT APPLY TO THE CLERK
AND THE DEPUTY CLERKS OF THE CIVIL DISTRICT COURT FOR THE PARISH OF
ORLEANS. 

ART. 282.  ACTS WHICH MAY BE DONE BY DISTRICT COURT CLERK THE CLERK
OF A DISTRICT COURT MAY: 

(1) GRANT AN APPEAL AND FIX THE RETURN DAY THEREOF; FIX THE AMOUNT
OF THE BOND FOR AN APPEAL, OR FOR THE ISSUANCE OF A WRIT OF ATTACHMENT
OR OF SEQUESTRATION, OR FOR THE RELEASE OF PROPERTY SEIZED UNDER ANY
WRIT, UNLESS FIXED BY LAW; APPOINT AN ATTORNEY AT LAW TO REPRESENT A
NONRESIDENT, ABSENT, INCOMPETENT, OR UNREPRESENTED DEFENDANT; OR
DISMISS WITHOUT PREJUDICE, ON APPLICATION OF PLAINTIFF, AN ACTION OR
PROCEEDING IN WHICH NO EXCEPTION, ANSWER, OR INTERVENTION HAS BEEN
FILED; AND . . . .

        .         .         .   .         . 

ART. 283.  ORDERS AND JUDGMENTS WHICH MAY BE SIGNED BY DISTRICT
COURT CLERK

        .         .   .         .         . 

(2) AN ORDER FOR THE ISSUANCE OF EXECUTORY PROCESS, OF A WRIT OF
ATTACHMENT OR OF SEQUESTRATION, OR OF GARNISHMENT PROCESS UNDER A WRIT
OF FIERI FACIAS, ATTACHMENT, OR OF SEUQESTRATION; THE RELEASE UNDER
BOND OF PROPERTY SEIZED UNDER A WRIT OF ATTACHMENT OR OF SEQUESTRATION;
OR TO PERMIT THE FILING OF AN INTERVENTION . . . .

        .  .         .         .         . 

ART. 325.  RIGHT OF ENTRY FOR EXECUTION; MAY REQUIRE ASSISTANCE OF
OTHERS IF RESISTANCE OFFERED OR THREATENED 

IN THE EXECUTION OF A WRIT, MANDATE, ORDER, OR JUDGMENT OF A COURT,
THE SHERIFF MAY ENTER ON THE LANDS, AND INTO THE RESIDENCE OR OTHER
BUILDING, OWNED OR OCCUPIED BY THE JUDGMENT DEBTOR OR DEFENDANT.  . .
. 

ART. 2373.  DISTRIBUTION OF PROCEEDS OF SALE 

AFTER DEDUCTING THE COSTS, THE SHERIFF SHALL FIRST PAY THE AMOUNT
DUE THE SEIZING CREDITOR, THEN THE INFERIOR MORTGAGES, LIENS, AND
PRIVILEGES ON THE PROPERTY SOLD, AND SHALL PAY TO THE DEBTOR WHATEVER
SURPLUS MAY REMAIN. 

ART. 3501.  PETITION; AFFIDAVIT; SECURITY 

A WRIT OF ATTACHMENT OR OF SEQUESTRATION SHALL ISSUE ONLY WHEN THE
NATURE OF THE CLAIM AND THE AMOUNT THEREOF, IF ANY, AND THE GROUNDS
RELIED UPON FOR THE ISSUANCE OF THE WRIT CLEARLY APPEAR FROM SPECIFIC
FACTS SHOWN BY THE PETITION VERIFIED BY, OR BY THE SEPARATE AFFIDAVIT
OF, THE PETITIONER, HIS COUNSEL OR AGENT.     THE APPLICANT SHALL
FURNISH SECURITY AS REQUIRED BY LAW FOR THE PAYMENT OF THE DAMAGES THE
DEFENDANT MAY SUSTAIN WHEN THE WRIT IS OBTAINED WRONGFULLY. 

ART. 3504.  RETURN OF SHERIFF; INVENTORY 

THE SHERIFF, AFTER EXECUTING A WRIT OF ATTACHMENT OR OF
SEQUESTRATION, SHALL DELIVER TO THE CLERK OF THE COURT FROM WHICH THE
WRIT ISSUED A WRITTEN RETURN STATING THE MANNER IN WHICH HE EXECUTED
THE WRIT.  HE SHALL ANNEX TO THE RETURN AN INVENTORY OF THE PROPERTY
SEIZED. 

ART. 3506.  DISSOLUTION OF WRIT; DAMAGES 

THE DEFENDANT BY CONTRADICTORY MOTION MAY OBTAIN THE DISSOLUTION OF
A WRIT OF ATTACHMENT OR OF SEQUESTRATION, UNLESS THE PLAINTIFF PROVES
THE GROUNDS UPON WHICH THE WRIT WAS ISSUED.  IF THE WRIT OF ATTACHMENT
OR OF SEQUESTRATION IS DISSOLVED, THE ACTION SHALL THEN PROCEED AS IF
NO WRIT HAD BEEN ISSUED. 

THE COURT MAY ALLOW DAMAGES FOR THE WRONGFUL ISSUANCE OF A WRIT OF
ATTACHMENT OR OF SEQUESTRATION ON A MOTION TO DISSOLVE, OR ON A
RECONVENTIONAL DEMAND.  ATTORNEY'S FEES FOR THE SERVICES RENDERED IN
CONNECTION WITH THE DISSOLUTION OF THE WRIT MAY BE INCLUDED AS AN
ELEMENT OF DAMAGES WHETHER THE WRIT IS DISSOLVED ON MOTION OR AFTER
TRIAL ON THE MERITS. 

ART. 3507.  RELEASE OF PROPERTY BY DEFENDANT; SECURITY 

A DEFENDANT MAY OBTAIN THE RELEASE OF THE PROPERTY SEIZED UNDER A
WRIT OF ATTACHMENT OR OF SEQUESTRATION BY FURNISHING SECURITY FOR THE
SATISFACTION OF ANY JUDGMENT WHICH MAY BE RENDERED AGAINST HIM. 

ART. 3508.  AMOUNT OF SECURITY FOR RELEASE OF ATTACHED OR
SEQUESTERED PROPERTY 

THE SECURITY FOR THE RELEASE OF PROPERTY SEIZED UNDER A WRIT OF
ATTACHMENT OR OF SEQUESTRATION SHALL EXCEED BY ONE-FOURTH THE VALUE OF
THE PROPERTY AS DETERMINED BY THE COURT, OR SHALL EXCEED BY ONE-FOURTH
THE AMOUNT OF THE CLAIM, WHICHEVER IS THE LESSER. 

ART. 3510.  NECESSITY FOR JUDGMENT AND EXECUTION 

EXCEPT AS PROVIDED IN ARTICLE 3513 (PERISHABLES), A FINAL JUDGMENT
MUST BE OBTAINED IN AN ACTION WHERE A WRIT OF ATTACHMENT OR OF
SEQUESTRATION HAS ISSUED BEFORE THE PROPERTY SEIZED CAN BE SOLD TO
SATISFY THE CLAIM. 

  ART. 3571.  GROUND FOR SEQUESTRATION 

WHEN ONE CLAIMS THE OWNERSHIP OR RIGHT TO POSSESSION OF PROPERTY, OR
A MORTGAGE, LIEN, OR PRIVILEGE THEREON, HE MAY HAVE THE PROPERTY SEIZED
UNDER A WRIT OF SEQUESTRATION, IF IT IS WITHIN THE POWER OF THE
DEFENDANT TO CONCEAL, DISPOSE OF, OR WASTE THE PROPERTY OR THE REVENUES
THEREFROM, OR REMOVE THE PROPERTY FROM THE PARISH, DURING PENDENCY OF
THE ACTION. 

ART. 3574.  PLAINTIFF'S SECURITY 

AN APPLICANT FOR A WRIT OF SEQUESTRATION SHALL FURNISH SECURITY FOR
AN AMOUNT DETERMINED BY THE COURT TO BE SUFFICIENT TO PROTECT DEFENDANT
AGAINST ANY DAMAGE RESULTING FROM A WRONGFUL ISSUANCE, UNLESS SECURITY
IS DISPENSED WITH BY LAW. 

ART. 3576.  RELEASE OF PROPERTY UNDER SEQUESTRATIONM 

IF THE DEFENDANT DOES NOT EFFECT THE RELEASE OF PROPERTY SEIZED
UNDER A WRIT OF SEQUESTRATION, AS PERMITTED BY ARTICLE 3507, WITHIN TEN
DAYS OF THE SEIZURE, THE PLAINTIFF MAY EFFECT THE RELEASE THEREOF BY
FURNISHING THE SECURITY REQUIRED BY ARTICLE 3508. 

MR. JUSTICE POWELL, CONCURRING. 

IN SWEEPING LANGUAGE, FUENTES V. SHEVIN, 407 U.S. 67 (1972),
ENUNCIATED THE PRINCIPLE THAT THE CONSTITUTIONAL GUARANTEE OF
PROCEDURAL DUE PROCESS REQUIRES AN ADVERSARY HEARING BEFORE AN
INDIVIDUAL MAY BE TEMPORARILY DEPRIVED OF ANY POSSESSORY INTEREST IN
TANGIBLE PERSONAL PROPERTY, HOWEVER BRIEF THE DISPOSSESSION AND HOWEVER
SLIGHT HIS MONETARY INTEREST IN THE PROPERTY.  THE COURT'S DECISION
TODAY WITHDRAWS SIGNIFICANTLY FROM THE FULL REACH OF THAT PRINCIPLE,
AND TO THIS EXTENT I THINK IT FAIR TO SAY THAT THE FUENTES OPINION IS
OVERRULED. 

I COULD HAVE AGREED THAT THE FLORIDA AND PENNSYLVANIA STATUTES IN
FUENTES WERE VIOLATIVE OF DUE PROCESS BECAUSE OF THEIR ARBITRARY AND
UNREASONABLE PROVISIONS.  IT SEEMS TO ME, HOWEVER, THAT IT WAS
UNNECESSARY FOR THE FUENTES OPINION TO HAVE ADOPTED SO BROAD AND
INFLEXIBLE A RULE, ESPECIALLY ONE THAT CONSIDERABLY ALTERED SETTLED LAW
WITH RESPECT TO COMMERCIAL TRANSACTIONS AND BASIC CREDITOR-DEBTOR
UNDERSTANDINGS.  NARROWER GROUNDS EXISTED FOR INVALIDATING THE REPLEVIN
STATUTES IN THAT CASE. 

        I 

THE CONSTITUTIONAL GUARANTEE OF PROCEDURAL DUE PROCESS APPLIES TO
GOVERNMENTAL DEPRIVATION OF A LEGITIMATE "PROPERTY" OR "LIBERTY"
INTEREST WITHIN THE MEANING OF THE FIFTH OR FOURTEENTH AMENDMENT.  IT
REQUIRES THAT ANY SUCH DEPRIVATION BE ACCOMPANIED BY MINIMUM PROCEDURAL
SAFEGUARDS, INCLUDING SOME FORM OF NOTICE AND A HEARING.  ARNETT V.
KENNEDY, ANTE, P. 164 (SEPARATE OPINION OF POWELL, J.); BOARD OF
REGENTS V. ROTH, 408 U.S. 564 (1972); PERRY V. SINDERMANN, 408 U.S. 593
(1972).  IN THE PRESENT CASE, THERE CAN BE NO DOUBT THAT UNDER STATE
LAW BOTH PETITIONER AND RESPONDENT HAD PROPERTY INTERESTS IN THE GOODS
SOUGHT TO BE SEQUESTERED.  PETITIONER, AS THE VENDEE-DEBTOR UNDER AN
INSTALLMENT SALES CONTRACT, HAD BOTH TITLE AND POSSESSION OF THE GOODS
SUBJECT TO HIS CONTRACTUAL OBLIGATION TO CONTINUE THE INSTALLMENT
PAYMENTS.  RESPONDENT, AS THE VENDOR-CREDITOR, HAD A VENDOR'S LIEN ON
THE GOODS AS SECURITY FOR THE UNPAID BALANCE. 

THE DETERMINATION OF WHAT DUE PROCESS REQUIRES IN A GIVEN CONTEXT
DEPENDS ON A CONSIDERATION OF BOTH THE NATURE OF THE GOVERNMENTAL
FUNCTION INVOLVED AND THE PRIVATE INTERESTS AFFECTED.  CAFETERIA
WORKERS V. MCELROY, 367 U.S. 886, 895 (1961); GOLDBERG V. KELLEY, 397
U.S. 254, 263 - 266 (1970).  THE GOVERNMENTAL FUNCTION IN THE INSTANT
CASE IS TO PROVIDE A REASONABLE AND FAIR FRAMEWORK OF RULES WHICH
FACILITATE COMMERCIAL TRANSACTIONS ON A CREDIT BASIS.  THE LOUISIANA
STATUTE IS DESIGNED TO PROTECT THE LEGITIMATE INTERESTS OF BOTH
CREDITOR AND DEBTOR.  AS TO THE CREDITOR, THERE IS THE OBVIOUS RISK
THAT A DEFAULTING DEBTOR MAY CONCEAL, DESTROY, OR FURTHER ENCUMBER THE
GOODS AND THUS DEPRIVE THE CREDITOR OF HIS SECURITY.  THIS DANGER IS
PARTICULARLY ACUTE WHERE, AS HERE, THE VENDOR'S LIEN MAY BE VITIATED
MERELY BY TRANSFERRING THE GOODS FROM THE DEBTOR'S POSSESSION.  IN
ADDITION, THE DEBTOR'S CONTINUED USE OF THE GOODS DIMINISHES THEIR
RESALE VALUE.  IN THESE CIRCUMSTANCES, A REQUIREMENT OF NOTICE AND AN
ADVERSARY HEARING BEFORE SEQUESTRATION WOULD IMPOSE A SERIOUS RISK THAT
A CREDITOR COULD BE DEPRIVED OF HIS SECURITY. 

AGAINST THIS CONCERN MUST BE BALANCED THE DEBTOR'S REAL INTEREST IN
UNINTERRUPTED POSSESSION OF THE GOODS, ESPECIALLY IF THE SEQUESTRATION
PROVES TO BE UNJUSTIFIED.  TO BE SURE, REPOSSESSION OF CERTAIN ITEMS OF
PERSON PROPERTY, EVEN FOR A BRIEF PERIOD, MAY CAUSE SIGNIFICANT
INCONVENIENCE.  BUT IT CAN HARDLY BE SAID THAT TEMPORARY DEPRIVATION OF
SUCH PROPERTY WOULD NECESSARILY PLACE A DEBTOR IN A "BRUTAL NEED"
SITUATION.  GOLDBERG V. KELLY, SUPRA; ARNETT V. KENNEDY, SUPRA. 

IN MY VIEW, THE CONSTITUTIONAL GUARANTEE OF PROCEDURAL DUE PROCESS
IS FULLY SATISFIED IN CASES OF THIS KIND WHERE STATE LAW REQUIRES, AS A
PRECONDITION TO INVOKING THE STATE'S AID TO SEQUESTER PROPERTY OF A
DEFAULTING DEBTOR, THAT THE CREDITOR FURNISH ADEQUATE SECURITY AND MAKE
A SPECIFIC FACTUAL SHOWING BEFORE A NEUTRAL OFFICER OR MAGISTRATE OF
PROBABLE CAUSE TO BELIEVE THAT HE IS ENTITLED TO THE RELIEF REQUESTED. 
AN OPPORUNITY FOR AN ADVERSARY HEARING MUST THEN BE ACCORDED PROMPTLY
AFTER SEQUESTRATION TO DETERMINE THE MERITS OF THE CONTROVERSY, WITH
THE BURDEN OF PROOF ON THE CREDITOR. 

THE LOUISIANA STATUTE SUB JUDICE SATISFIES THESE REQUIREMENTS AND
DIFFERS MATERIALLY FROM THE FLORIDA AND PENNSYLVANIA STATUTES IN
FUENTES.  /1/  THOSE STATUTES DID NOT REQUIRE AN APPLICANT FOR A WRIT
OF REPLEVIN TO MAKE ANY FACTUALLY CONVINCING SHOWING THAT THE PROPERTY
WAS WRONGFULLY DETAINED OR THAT HE WAS ENTITLED TO THE WRIT.  MOREOVER,
THE FLORIDA STATUTE PROVIDED ONLY THAT A POST-SEIZURE HEARING BE HELD
EVENTUALLY ON THE MERITS OF THE COMPETING CLAIMS, AND IT REQUIRED THE
DEBTOR TO INITIATE THAT PROCEEDING.  THE PENNSYLVANIA STATUTE MADE NO
PROVISION FOR A HEARING AT ANY TIME. 

BY CONTRAST, THE LOUISIANA STATUTE APPLICABLE IN ORLEANS PARISH
AUTHORIZES ISSUANCE OF A WRIT OF SEQUESTRATION "ONLY WHEN THE NATURE OF
THE CLAIM AND THE AMOUNT THEREOF, IF ANY, AND THE GROUNDS RELIED UPON .
. . CLEARLY APPEAR FROM SPECIFIC FACTS SHOWN BY THE PETITION VERIFIED
BY, OR BY THE SEPARATE AFFIDAVIT OF, THE PETITIONER, HIS COUNSEL OR
AGENT."  LA. CODE CIV. PROC. ANN., ART. 3501 (1961).  THE LOUISIANA
STATUTE ALSO PROVIDES FOR AN IMMEDIATE HEARING, AND THE WRIT IS
DISSOLVED "UNLESS THE (CREDITOR) PROVES THE GROUNDS UPON WHICH THE WRIT
WAS ISSUED."  ART.  3506. 

THE COURT'S OPINION MAKES THESE POINTS WELL, AND I NEED NOT
ELABORATE THEM FURTHER.  IN BRIEF, THE LOUISIANA STATUTE SATISFIES THE
ESSENTIAL PREREQUISITES OF PROCEDURAL DUE PROCESS AND REPRESENTS A
FAIRER BALANCING OF THE INTERESTS OF THE RESPECTIVE PARTIES THAN THE
STATUTES IN FUENTES.  I THEREFORE AGREE THAT THE LOUISIANA PROCEDURE
SHOULD BE SUSTAINED AGAINST PETITIONER'S CHALLENGE. 

        II 

MR. JUSTICE STEWART REPROVES THE COURT FOR NOT ADHERING STRICTLY TO
THE DOCTRINE OF STARE DECISIS.  POST, AT 634 - 636.  TO BE SURE, STARE
DECISIS PROMOTES THE IMPORTANT CONSIDERATIONS OF CONSISTENCY AND
PREDICTABILITY IN JUDICIAL DECISIONS AND REPRESENTS A WISE AND
APPROPRIATE POLICY IN MOST INSTANCES.  BUT THAT DOCTRINE HAS NEVER BEEN
THOUGHT TO STAND AS AN ABSOLUTE BAR TO RECONSIDERATION OF A PRIOR
DECISION, ESPECIALLY WITH RESPECT TO MATTERS OF CONSTITUTIONAL
INTERPRETATION.  /2/  WHERE THE COURT ERRS IN ITS CONSTRUCTION OF A
STATUTE, CORRECTION MAY ALWAYS BE ACCOMPLISHED BY LEGISLATIVE ACTION. 
REVISION OF A CONSTITUTIONAL INTERPRETATION, ON THE OTHER HAND, IS
OFTEN IMPOSSIBLE AS A PRACTICAL MATTER, FOR IT REQUIRES THE CUMBERSOME
ROUTE OF CONSTITUTIONAL AMENDMENT.  IT IS THUS NOT ONLY OUR PREROGATIVE
BUT ALSO OUR DUTY TO RE-EXAMINE A PRECEDENT WHERE ITS REASONING OR
UNDERSTANDING OF THE CONSTITUTION IS FAIRLY CALLED INTO QUESTION.  AND
IF THE PRECEDENT OR ITS RATIONALE IS OF DOUBTFUL VALIDITY, THEN IT
SHOULD NOT STAND.  AS MR. CHIEF JUSTICE TANEY COMMENTED MORE THAN A
CENTURY AGO, A CONSTITUTIONAL DECISION OF THIS COURT SHOULD BE "ALWAYS
OPEN TO DISCUSSION WHEN IT IS SUPPORTED."  PASSENGER CASES, 7 HOW. 
283, 470 (1849). 

MOREOVER, RECONSIDERATION IS PARTICULARLY APPROPRIATE IN THE PRESENT
CASE.  TO THE EXTENT THAT THE FUENTES OPINION ESTABLISHED A PROCRUSTEAN
RULE OF A PRIOR ADVERSARY HEARING, IT MARKED A SIGNIFICANT DEPARTURE
FROM PAST TEACHINGS AS TO THE MEANING OF DUE PROCESS.  /3/  AS THE
COURT STATED IN CAFETERIA WORKERS V. MCELROY, 367 U.S., AT 895, "(THE
VERY NATURE OF DUE PROCESS NEGATES ANY CONCEPT OF INFLEXIBLE PROCEDURES
UNIVERSALLY APPLICABLE TO EVERY IMAGINABLE SITUATION."  THE FUENTES
OPINION NOT ONLY EVISCERATED THAT PRINCIPLE BUT ALSO SOUNDED A
POTENTIAL DEATH KNELL FOR A PANOPLY OF STATUTES IN THE COMMERCIAL
FIELD.  /4/  THIS FACT ALONE JUSTIFIES A RE-EXAMINATION OF ITS
PREMISES.  THE COURT TODAY REVIEWS THESE AT LENGTH, AND I JOIN ITS
OPINION BECAUSE I THINK IT REPRESENTS A REAFFIRMATION OF THE
TRADITIONAL MEANING OF PROCEDURAL DUE PROCESS. 

/1/  THE COURT OUTLINED THE DEFICIENCIES OF THE STATUTES IN
FUENTES: 

"THERE IS (UNDER THE FLORIDA STATUTE) NO REQUIREMENT THAT THE
APPLICANT MAKE A CONVINCING SHOWING BEFORE THE SEIZURE THAT THE GOODS
ARE, IN FACT, 'WRONGFULLY DETAINED.'  RATHER, FLORIDA LAW AUTOMATICALLY
RELIES ON THE BARE ASSERTION OF THE PARTY SEEKING THE WRIT THAT HE IS
ENTITLED TO ONE AND ALLOWS A COURT CLERK TO ISSUE THE WRIT SUMMARILY. 
IT REQUIRES ONLY THAT THE APPLICANT FILE A COMPLAINT, INITIATING A
COURT ACTION FOR REPOSSESSION AND RECITING IN CONCLUSORY FASHION THAT
HE IS 'LAWFULLY ENTITLED TO THE POSSESSION'  OF THE PROPERTY, AND THAT
HE FILE A SECURITY BOND . . . ."  407 U.S., AT 73 - 74.  THE COURT
NOTED THAT THE PENNSYLVANIA STATUTE REQUIRED EVEN LESS THAN THE FLORIDA
STATUTE, SINCE THE PARTY SEEKING THE WRIT "NEED NOT EVEN FORMALLY
ALLEGE THAT HE IS LAWFULLY ENTITLED TO THE PROPERTY."  ID., AT 78.  ALL
THAT WAS REQUIRED WAS THE FILING OF AN "'AFFIDAVIT OF THE VALUE OF THE
PROPERTY TO BE REPLEVIED.'"  IBID.  MOREOVER, THE PENNSYLVANIA LAW DID
"NOT REQUIRE THAT THERE EVER BE OPPORTUNITY FOR A HEARING ON THE MERITS
OF THE CONFLICTING CLAIMS TO POSSESSION OF THE REPLEVIED PROPERTY." 
ID., AT 77. 

/2/  SEE ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38,
93 (1936) (STONE AND CARDOZO, JJ., CONCURRING IN RESULT); BURNER V.
CORONADO OIL & GAS CO., 285 U.S. 393, 405, 406 - 408 (1932) (BRANDEIS,
J., DISSENTING).  FOR THE VIEW THAT STARE DECISIS NEED NOT ALWAYS APPLY
EVEN TO QUESTIONS OF STATUTORY INTERPRETATION, SEE BOYS MARKETS V.
RETAIL CLERKS UNION, 398 U.S. 235, 255 (1970) (STEWART, J.,
CONCURRING). 

/3/  THE FUENTES OPINION RELIED PRIMARILY ON SNIADACH V. FAMILY
FINANCE CORP., 395 U.S. 337 (1969).  THAT CASE INVOLVED A PREJUDGMENT
GARNISHMENT OF WAGES IN WHICH THE CREDITOR HAD NO PRE-EXISTING PROPERTY
INTEREST.  IT IS READILY DISTINGUISHABLE FROM THE INSTANT CASE WHERE
THE CREDITOR DOES HAVE A PRE-EXISTING PROPERTY INTEREST AS A RESULT OF
THE VENDOR'S LIEN WHICH ATTACHED UPON EXECUTION OF THE INSTALLMENT
SALES CONTRACT.  INDEED, DEPENDING ON THE NUMBER OF INSTALLMENTS WHICH
HAVE BEEN PAID, THE CREDITOR'S INTEREST MAY OFTEN BE GREATER THAN THE
DEBTOR'S.  THUS, WE DEAL HERE WITH MUTUAL PROPERTY INTERESTS, BOTH OF
WHICH ARE ENTITLED TO BE SAFEGUARDED.  FUENTES OVERLOOKED THIS VITAL
POINT. 

IN ADDITION, THE COURT RECOGNIZED IN SNIADACH THAT PREJUDGMENT
GARNISHMENT OF WAGES COULD AS A PRACTICAL MATTER "IMPOSE TREMENDOUS
HARDSHIP" AND "DRIVE A WAGE-EARNING FAMILY TO THE WALL."  ID., AT 340,
341 - 342.  BY CONTRAST, THERE IS NO BASIS FOR ASSUMING THAT
SEQUESTRATION OF A DEBTOR'S GOODS WOULD NECESSARILY PLACE HIM IN SUCH A
"BRUTAL NEED" SITUATION.     /4/  FOR A DISCUSSION OF THE FAR-REACHING
IMPLICATIONS OF THE FUENTES RATIONALE, SEE CLARK & LANDERS, SNIADACH,
FUENTES AND BEYOND:  THE CREDITOR MEETS THE CONSTITUTION, 59 VA. L.
REV. 335 (1973).  THE AUTHORS SUGGEST THAT FUENTES COULD REQUIRE
INVALIDATION OF MANY SUMMARY CREDITOR REMEDIES IN THEIR PRESENT FORM. 

MR. JUSTICE STEWART, WITH WHO, MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

THE LOUISIANA SEQUESTRATION PROCEDURE NOW BEFORE US IS REMARKABLY
SIMILAR TO THE STATUTORY PROVISIONS AT ISSUE IN FUENTES V. SHEVIN, 407
U.S. 67 (1972).  IN BOTH CASES THE PURCHASER-IN-POSSESSION OF THE
PROPERTY IS NOT AFFORDED ANY PRIOR NOTICE OF THE SEIZURE OR ANY
OPPORTUNITY TO REBUT THE ALLEGATIONS OF THE VENDOR BEFORE THE PROPERTY
IS SUMMARILY TAKEN FROM HIM BY AGENTS OF THE STATE.  IN BOTH CASES ALL
THAT IS REQUIRED TO SUPPORT THE ISSUANCE OF THE WRIT AND SEIZURE OF THE
GOODS IS THE FILING OF A COMPLAINT AND AN AFFIDAVIT CONTAINING PRO
FORMA ALLEGATIONS IN SUPPORT OF THE SELLER'S PURPORTED ENTITLEMENT TO
THE GOODS IN QUESTION.  SINCE THE PROCEDURE IN BOTH CASES IS COMPLETELY
EX PARTE, THE STATE OFFICIAL CHARGED WITH ISSUING THE WRIT CAN DO
LITTLE MORE THAN DETERMINE THE FORMAL SUFFICIENCY OF THE PLAINTIFF'S
ALLEGATIONS BEFORE ORDERING THE STATE AGENTS TO TAKE THE GOODS FROM THE
DEFENDANT'S POSSESSION.  /1/ 

THE QUESTION BEFORE THE COURT IN FUENTES WAS WHAT PROCEDURES ARE
REQUIRED BY THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT WHEN A STATE,
AT THE BEHEST OF A PRIVATE CLAIMANT, SEIZES GOODS IN THE POSSESSION OF
ANOTHER PENDING JUDICIAL RESOLUTION OF THE CLAIMANT'S ASSERTION OF
SUPERIOR RIGHT TO POSSESS THE PROPERTY.  THE COURT'S ANALYSIS OF THIS
QUESTION BEGAN WITH THE PROPOSITION THAT, EXCEPT IN EXCEPTIONAL
CIRCUMSTANCES, /2/  THE DEPRIVATION OF A PROPERTY INTEREST ENCOMPASSED
WITHIN THE FOURTEENTH AMENDMENT'S PROTECTION MUST BE PRECEDED BY NOTICE
TO THE AFFECTED PARTY AND AN OPPORUNITY TO BE HEARD.  THE COURT THEN
WENT ON TO HOLD THAT A DEBTOR-VENDEE'S INTEREST IN THE CONTINUED
POSSESSION OF PURCHASED GOODS WAS "PROPERTY" WITHIN THE FOURTEENTH
AMENDMENT'S PROTECTION AND THAT THE "TEMPORARY, NONFINAL DEPRIVATION OF
(THIS) PROPERTY (IS) . . . A 'DEPRIVATION'  IN THE TERMS OF THE
FOURTEENTH AMENDMENT."  407 U.S., AT 85.  ACCORDINGLY, FUENTES HELD
THAT SUCH A DEPRIVATION OF PROPERTY MUST BE PRECEDED BY NOTICE TO THE
POSSESSOR AND BY AN OPPORUNITY FOR A HEARING APPROPRIATE UNDER THE
CIRCUMSTANCES.  MATTERS SUCH AS REQUIREMENTS FOR THE POSTING OF BOND
AND THE FILING OF SWORN FACTUAL ALLEGATIONS, THE LENGTH AND SEVERITY OF
THE DEPRIVATION, THE RELATIVE SIMPLICITY OF THE ISSUES UNDERLYING THE
CREDITOR'S CLAIM TO POSSESSION, AND THE COMPARATIVE "IMPORTANCE" OR
"NECESSITY" OF THE GOODS INVOLVED WERE HELD TO BE RELEVANT TO
DETERMINING THE FORM OF NOTICE AND HEARING TO BE PROVIDED, BUT NOT TO
THE CONSTITUTIONAL NEED FOR NOTICE AND AN OPPORUNITY FOR A HEARING OF
SOME KIND. 

THE DEPRIVATION OF PROPERTY IN THIS CASE IS IDENTICAL TO THAT AT
ISSUE IN FUENTES, AND THE COURT DOES NOT SAY OTHERWISE.  THUS, UNDER
FUENTES, DUE PROCESS OF LAW PERMITS LOUISIANA TO EFFECT THIS
DEPRIVATION ONLY AFTER NOTICE TO THE POSSESSOR AND OPPORUNITY FOR A
HEARING.  BECAUSE I WOULD ADHERE TO THE HOLDING OF FUENTES, I DISSENT
FROM THE COURT'S OPINION AND JUDGMENT UPHOLDING LOUISIANA'S EX PARTE
SEQUESTRATION PROCEDURE, WHICH PROVIDES THAT THE POSSESSOR OF THE
PROPERTY SHALL NEVER HAVE ADVANCE NOTICE OR A HEARING OF ANY KIND. 

AS ALREADY NOTED, THE DEPRIVATION OF PROPERTY IN THIS CASE IS
IDENTICAL TO THAT IN FUENTES.  BUT THE COURT SAYS THAT THIS IS A
DIFFERENT CASE FOR THREE REASONS: (1) THE PLAINTIFF WHO SEEKS THE
SEIZURE OF THE PROPERTY MUST FILE AN AFFIDAVIT STATING "SPECIFIC FACTS"
THAT JUSTIFY THE SEQUESTRATION; (2) THE STATE OFFICIAL WHO ISSUES THE
WRIT OF SEQUESTRATION IS A JUDGE INSTEAD OF A CLERK OF THE COURT; AND
(3) THE ISSUES THAT GOVERN THE PLAINTIFF'S RIGHT TO SEQUESTRATION ARE
LIMITED TO "THE EXISTENCE OF A VENDOR'S LIEN AND THE ISSUE OF DEFAULT,"
AND "(THERE IS THUS FAR LESS DANGER HERE THAT THE SEIZURE WILL BE
MISTAKEN AND A CORRESPONDING DECREASE IN THE UTILITY OF AN ADVERSARY
HEARING," ANTE, AT 618.  THE COURT'S OPINION IN FUENTES, HOWEVER,
EXPLICITLY REJECTED EACH OF THESE FACTORS AS A GROUND FOR A DIFFERENCE
IN DECISION. 

THE FIRST TWO PURPORTED DISTINCTIONS RELATE SOLELY TO THE PROCEDURE
BY WHICH THE CREDITOR-VENDOR SECURES THE STATE'S AID IN SUMMARILY
TAKING GOODS FROM THE PURCHASER'S POSSESSION.  BUT SO LONG AS THE
LOUISIANA LAW ROUTINELY PERMITS AN EX PARTE SEIZURE WITHOUT NOTICE TO
THE PURCHASER, THESE PROCEDURAL DISTINCTIONS MAKE NO CONSTITUTIONAL
DIFFERENCE. 

THE LOUISIANA AFFIDAVIT REQUIREMENT CAN BE MET BY ANY PLAINTIFF WHO
FILLS IN THE BLANKS ON THE APPROPRIATE FORM DOCUMENTS AND PRESENTS THE
COMPLETED FORMS TO THE COURT.  ALTHOUGH THE STANDARDIZED FORM IN THIS
CASE CALLED FOR SOMEWHAT MORE INFORMATION THAN THAT REQUIRED BY THE
FLORIDA AND PENNSYLVANIA STATUTES CHALLENGED IN FUENTES, SUCH EX PARTE
ALLEGATIONS "ARE HARDLY A SUBSTITUTE FOR A PRIOR HEARING, FOR THEY TEST
NO MORE THAN THE STRENGTH OF THE APPLICANT'S OWN BELIEF IN HIS RIGHTS. 
SINCE HIS PRIVATE GAIN IS AT STAKE, THE DANGER IS ALL TOO GREAT THAT
HIS CONFIDENCE IN HIS CAUSE WILL BE MISPLACED.  LAWYERS AND JUDGES ARE
FAMILIAR WITH THE PHENOMENON OF A PARTY MISTAKENLY BUT FIRMLY CONVINCED
THAT HIS VIEW OF THE FACTS AND LAW WILL PREVAIL, AND THEREFORE QUITE
WILLING TO RISK THE COSTS OF LITIGATION."  407 U.S., AT 83. 

SIMILARLY, THE FACT THAT THE OFFICIAL WHO SIGNS THE WRIT AFTER THE
EX PARTE APPLICATION IS A JUDGE INSTEAD OF A COURT CLERK IS OF NO
CONSTITUTIONAL SIGNIFICANCE.  OUTSIDE ORLEANS PARISH, THIS SAME
FUNCTION IS PERFORMED BY THE COURT CLERK.  THERE IS NOTHING TO SUGGEST
THAT THE NATURE OF THIS DUTY WAS AT ALL CHANGED WHEN THE LAW WAS
AMENDED TO VEST IT IN A JUDGE RATHER THAN A CLERK IN THIS ONE PARISH. 
INDEED, THE OFFICIAL COMMENTS DECLARE THAT THIS STATUTORY REVISION WAS
INTENDED TO "MAKE) NO CHANGE IN THE LAW."  /3/  WHETHER THE ISSUING
FUNCTIONARY BE A JUDGE OR A COURT CLERK, HE CAN IN ANY EVENT DO NO MORE
THAN ASCERTAIN THE FORMAL SUFFICIENCY OF THE PLAINTIFF'S ALLEGATIONS,
AFTER WHICH THE ISSUANCE OF THE SUMMARY WRIT BECOMES A SIMPLE
MINISTERIAL ACT.  /4/ 

THE THIRD DISTINCTION THE COURT FINDS BETWEEN THIS CASE AND FUENTES
IS EQUALLY INSUBSTANTIAL.  THE COURT SAYS THE ISSUES IN THIS CASE ARE
"PARTICULARLY SUITED" TO EX PARTE DETERMINATION, IN CONTRAST TO THE
ISSUES IN FUENTES, WHICH WERE "INHERENTLY SUBJECT TO FACTUAL
DETERMINATION AND ADVERSARIAL INPUT," ANTE, AT 617, 618.  THERE IS,
HOWEVER, ABSOLUTELY NO SUPPORT FOR THIS PURPORTED DISTINCTION.  IN THIS
CASE THE COURT STATES THE FACTUAL ISSUES AS "THE EXISTENCE OF A
VENDOR'S LIEN AND THE ISSUE OF DEFAULT."  ANTE, AT 618.  THE ISSUES
UPON WHICH REPLEVIN DEPENDED IN FUENTES WERE NO DIFFERENT; THE CREDITOR
VENDOR NEEDED ONLY TO ESTABLISH HIS SECURITY INTEREST AND THE DEBTOR
VENDEE'S DEFAULT.  AS MR. JUSTICE WHITE ACKNOWLEDGED IN HIS FUENTES
DISSENT, THE ESSENTIAL ISSUE AT ANY HEARING WOULD BE WHETHER "THERE IS
REASONABLE BASIS FOR HIS (THE CREDITOR-VENDOR'S) CLAIM OF DEFAULT." 
407 U.S., AT 99 - 100.  THUS, THE COURT PRODUCES THIS FINAL ATTEMPTED
DISTINCTION OUT OF WHOLE CLOTH. 

MOREOVER, FUENTES HELD THAT THE RELATIVE COMPLEXITY OF THE ISSUES IN
DISPUTE IS NOT RELEVANT TO DETERMINING WHETHER A PRIOR HEARING IS
REQUIRED BY DUE PROCESS.  "THE ISSUES DECISIVE OF THE ULTIMATE RIGHT TO
CONTINUED POSSESSION, OF COURSE, MAY BE QUITE SIMPLE.  THE SIMPLICITY
OF THE ISSUES MIGHT BE RELEVANT TO THE FORMALITY OR SCHEDULING OF A
PRIOR HEARING.  BUT IT CERTAINLY CANNOT UNDERCUT THE RIGHT TO A PRIOR
HEARING OF SOME KIND."  ID., AT 87 N.18 (CITATION OMITTED).  SIMILARLY,
THE PROBABILITY OF SUCCESS ON THE FACTUAL ISSUE DOES NOT AFFECT THE
RIGHT TO PRIOR NOTICE AND AN OPPORUNITY TO BE HEARD. 

"THE RIGHT TO BE HEARD DOES NOT DEPEND UPON AN ADVANCE SHOWING THAT
ONE WILL SURELY PREVAIL AT THE HEARING.  TO ONE WHO PROTESTS AGAINST
THE TAKING OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW, IT IS NO ANSWER
TO SAY THAT IN HIS PARTICULAR CASE DUE PROCESS OF LAW WOULD HAVE LED TO
THE SAME RESULT BECAUSE HE HAD NO ADEQUATE DEFENSE UPON THE MERITS.  IT
IS ENOUGH TO INVOKE THE PROCEDURAL SAFEGUARDS OF THE FOURTEENTH
AMENDMENT THAT A SIGNIFICANT PROPERTY INTEREST IS AT STAKE, WHATEVER
THE ULTIMATE OUTCOME OF A HEARING ON THE CONTRACTUAL RIGHT TO CONTINUED
POSSESSION AND USE OF THE GOODS."  ID., AT 87 (INTERNAL QUOTATION MARKS
AND CITATION OMITTED)  

IN SHORT, THIS CASE IS CONSTITUTIONALLY INDISTINGUISHABLE FROM
FUENTES V. SHAVIN, AND THE COURT TODAY HAS SIMPLY REJECTED THE
REASONING OF THAT CASE AND ADOPTED INSTEAD THE ANALYSIS OF THE FUENTES
DISSENT.  IN LIGHT OF ALL THAT HAS BEEN WRITTEN IN FUENTES AND IN THIS
CASE, IT SEEMS POINTLESS TO PROLONG THE DEBATE.  SUFFICE IT TO SAY THAT
I WOULD REVERSE THE JUDGMENT BEFORE US BECAUSE THE LOUISIANA
SEQUESTRATION PROCEDURE FAILS TO COMPORT WITH THE REQUIREMENTS OF DUE
PROCESS OF LAW. 

I WOULD ADD HOWEVER, A WORD OF CONCERN.  IT SEEMS TO ME THAT UNLESS
WE RESPECT THE CONSTITUTIONAL DECISIONS OF THIS COURT, WE CAN HARDLY
EXPECT THAT OTHERS WILL DO SO.  CF. ROOFING WHOLESALE CO. V. PALMER,
108 ARIZ. 508, 502 P.2D 1327 (1972).  A SUBSTANTIAL DEPARTURE FROM
PRECEDENT CAN ONLY BE JUSTIFIED, I HAD THOUGHT, IN THE LIGHT OF
EXPERIENCE WITH THE APPLICATION OF THE RULE TO BE ABANDONED OR IN THE
LIGHT OF AN ALTERED HISTORIC ENVIRONMENT.  /5/  YET THE COURT TODAY HAS
UNMISTAKABLY OVERRULED A CONSIDERED DECISION OF THIS COURT THAT IS
BARELY TWO YEARS OLD, WITHOUT POINTING TO ANY CHANGE IN EITHER SOCIETAL
PERCEPTIONS OR BASIC CONSTITUTIONAL UNDERSTANDINGS THAT MIGHT JUSTIFY
THIS TOTAL DISREGARD OF STARE DECISIS. 

THE FUENTES DECISION WAS IN A DIRECT LINE OF RECENT CASES IN THIS
COURT THAT HAVE APPLIED THE PROCEDURAL DUE PROCESS COMMANDS OF THE
FOURTEENTH AMENDMENT TO PROHIBIT GOVERNMENTAL ACTION THAT DEPRIVES A
PERSON OF A STATUTORY OR CONTRACTUAL PROPERTY INTEREST WITH NO ADVANCE
NOTICE OR OPPORUNITY TO BE HEARD.  /6/  IN THE SHORT TIME THAT HAS
ELAPSED SINCE THE FUENTES CASE WAS DECIDED, MANY STATE AND FEDERAL
COURTS HAVE FOLLOWED IT IN ASSESSING THE CONSTITUTIONAL VALIDITY OF
STATE REPLEVIN STATUTES AND OTHER COMPARABLE STATE LAWS.  /7/  NO DATA
HAVE BEEN BROUGHT TO OUR ATTENTION TO INDICATE THAT THESE DECISIONS,
GRANTING TO OTHERWISE DEFENSELESS CONSUMERS THE SIMPLE RUDIMENTS OF DUE
PROCESS OF LAW, HAVE WORKED ANY UNTOWARD CHANGE IN THE CONSUMER CREDIT
MARKET OR IN CHANGE THAT HAS OCCURRED SINCE THE FUENTES CASE IS IN THE
MAKEUP OF THIS COURT.  /8/ 

A BASIC CHANGE IN THE LAW UPON A GROUND NO FIRMER THAN A CHANGE IN
OUR MEMBERSHIP INVITES THE POPULAR MISCONCEPTION THAT HTIS INSTITUTION
IS LITTLE DIFFERENT FROM THE TWO POLITICAL BRANCHES OF THE GOVERNMENT. 
NO MISCONCEPTION COULD DO MORE LASTING INJURY TO THIS COURT AND TO THE
SYSTEM OF LAW WHICH IT IS OUR ABIDING MISSION TO SERVE. 

/1/  THE LOUISIANA SUPREME COURT HELD THAT FUENTES DID NOT GOVERN
THE PRESENT CASE.  ESSENTIALLY, THAT COURT HELD THAT BECAUSE THE
LOUISIANA VENDOR'S PRIVILEGE IS DEFEATED IF THE VENDEE ALIENATES THE
PROPERTY OVER WHICH THE VENDOR HAS THE PRIVILEGE, THIS CASE FALLS
WITHIN THE LANGUAGE IN FUENTES THAT "(THERE MAY BE CASES IN WHICH A
CREDITOR COULD MAKE A SHOWING OF IMMEDIATE DANGER THAT A DEBTOR WILL
DESTROY OR CONCEAL DISPUTED GOODS."  FUENTES V. SHEVIN, 407 U.S. 67,
93.  THE COURT TODAY QUITE CORRECTLY DOES NOT EMBRACE THIS RATIONALE. 
IN DISCUSSING THE "'EXTRAORDINARY SITUATIONS'" THAT MIGHT JUSTIFY THE
SUMMARY SEIZURE OF GOODS, THE FUENTES OPINION STRESSED THAT THESE
SITUATIONS "MUST BE TRULY UNUSUAL."  ID., AT 90.  SPECIFICALLY, IT
REFERRED TO "SPECIAL SITUATIONS DEMANDING PROMPT ACTION."  ID., AT 93. 
IN EFFECT, THE LOUISIANA SUPREME COURT HELD THAT ALL VENDOR-CREDITORS
IN THE STATE CAN BE CONCLUSIVELY PRESUMED TO BE IN THIS "SPECIAL"
SITUATION, REGARDLESS OF WHETHER THE INDIVIDUAL VENDOR COULD MAKE A
SHOWING OF IMMEDIATE DANGER IN HIS PARTICULAR CASE.  BUT IF THE
SITUATION OF ALL SUCH VENDORS IN A STATE COULD BE CONCLUSIVELY PRESUMED
TO MEET THE "EXTRAORDINARY," "UNUSUAL," AND "SPECIAL"  CONDITIONS
REFERRED TO IN FUENTES, THE BASIC CONSTITUTIONAL RULE OF THAT CASE
WOULD BE WHOLLY OBLITERATED IN THE STATE. 

/2/  407 U.S., AT 90 - 93. 

/3/  LA. CODE CIV. PROC. ANN., ART. 281 (1961). 

/4/  THE LOUISIANA AUTHORITIES CITED BY THE COURT ARE NOT TO THE
CONTRARY.  WRIGHT V. HUGHES, 254 SO.2D 293 (LA. CT. APP. 1971), AND
HANCOCK BANK V. ALEXANDER, 256 LA. 643, 237 SO.2D 669 (1970), STAND
ONLY FOR THE PROPOSITION THAT A WRIT SHOULD NOT ISSUE UNLESS THE SWORN
ALLEGATIONS ARE FORMALLY SUFFICIENT, WHICH MAY MEAN NOTHING MORE THAN
THAT THE PROPER STANDARDIZED FORM BE COMPLETELY FILLED IN. 

/5/  SEE, E.G., NORTH DAKOTA BOARD OF PHARMACY V. SNYDER'S DRUG
STORES, 414 U.S. 156 (1973); BROWN V. BOARD OF EDUCATION, 347 U.S. 483
(1954). 

/6/  SEE, E.G., GOLDBERG V. KELLY, 397 U.S. 254 (1970); SNIADACH V.
FAMILY FINANCE CORP., 395 U.S. 337 (1969); AND BELL V. BURSON, 402 U.S.
535 (1971). 

/7/  SEE, E.G., TURNER V. COLONIAL FINANCE CORP., 467 F.2D 202 (CA5
1972); SENA V. MONTOYA, 346 F. SUPP. 5 (NM 1972); DORSEY V. COMMUNITY
STORES CORP., 346 F. SUPP. 103 (ED WIS. 1972); THORP CREDIT, INC. V.
BARR, 200 N.W.2D 535 (IOWA 1972); INTER CITY MOTOR SALES V. COMMON
PLEAS JUDGE, 42 MICH. APP. 112, 201 N.W.2D 378 (1972); AND MONTOYA V.
BLACKHURST, 84 N.M. 91, 500 P.2D 176 (1972). 

/8/  ALTHOUGH MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST WERE
MEMBERS OF THE COURT AT THE TIME THAT FUENTES V. SHEVIN WAS ANNOUNCED,
THEY WERE NOT MEMBERS OF THE COURT WHEN THAT CASE WAS ARGUED, AND THEY
DID NOT PARTICIPATE IN ITS "CONSIDERATION OR DECISION."  407 U.S., AT
97.     MR. JUSTICE BRENNAN IS IN AGREEMENT THAT FUENTES V. SHEVIN, 407
U.S. 67 (1972), REQUIRES REVERSAL OF THE JUDGMENT OF THE SUPREME COURT
OF LOUISIANA. 

ROBERT J. HOBBS ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS JOHN W. REED. 

THOMAS J. O'SULLIVAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS MARSHALL J. FAVRET. 

WILLIAM J. GUSTE, JR., ATTORNEY GENERAL, WARREN E. MOULEDOUX, FIRST
ASSISTANT ATTORNEY GENERAL, AND LOUIS M. JONES, ASSISTANT ATTORNEY
GENERAL, FILED A BRIEF FOR THE STATE OF LOUISIANA AS AMICUS CURIAE. 
..END :









DONNELLY V. DECHRISTOFORO, 416 U.S. 637 


       DONNELLY V. DECHRISTOFORO

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT

        NO. 72 - 1570.  ARGUED FEBRUARY 20, 1974--DECIDED MAY 13,

           1974; (473 F.2D 1236, REVERSED.) 


    DURING THE COURSE OF A JOINT FIRST-DEGREE MURDER TRIAL,

  RESPONDENT'S CODEFENDANT PLEADED GUILTY TO SECOND-DEGREE MURDER,

  OF WHICH THE TRIAL COURT ADVISED THE JURY, STATING THAT THE TRIAL

  AGAINST RESPONDENT WOULD CONTINUE.  IN HIS SIMMATION, THE

  PROSECUTOR STATED THAT RESPONDENT AND HIS COUNSEL HAD SAID THAY

  THEY "HOPE THAT YOU FIND HIM NOT GUILTY.  I QUITE FRANKLY THINK

  THAT THEY HOPE THAT YOU FIND HIM NOT GUILTY OF SOMETHING A LITTLE

  LESS THAN FIRST-DEGREE MURDER."  RESPONDENT'S COUNSEL OBJECTED

AND LATER SOUGHT AN INSTRUCTION THAT THE REMARK WAS IMPROPER AND

  SHOULD BE DISREGARDED IN ITS INSTRUCTIONS, THE TRIAL COURT, AFTER

  RE-EMPHASIZING THE PROSECUTOR'S STATEMENT THAT HIS ARGUMENT WAS

  NOT EVIDENCE, DECLARED THAT THE CHALLENGED REMARK WAS

  UNSUPPORTED, AND ADMONISHED THE JURY TO IGNORE IT.  RESPONDENT

  WAS CONVICTED OF FIRST-DEGREE MURDER.  THE STATE'S HIGHEST COURT

  RULED THAT THE PROSECUTOR'S REMARK, THOUGH IMPROPER, WAS NOT SO

  PREJUDICIAL AS TO WARRANT A MISTRIAL AND THAT THE TRIAL COURT'S

  INSTRUCTION SUFFICED TO SAFEGUARD RESPONDENT'S RIGHTS.  THE

  DISTRICT COURT DENIED RESPONDENT'S PETITION FOR A WRIT OF HABEAS

  CORPUS.  THE COURT OF APPEALS REVERSED, CONCLUDING THAT THE

  CHALLENGED COMMENT IMPLIED THAT RESPONDENT, LIKE HIS CODEFENDANT,

  HAD OFFERED TO PLEAD GUILTY TO A LESSER OFFENSE, BUT WAS REFUSED

  AND THAT THE COMMENT WAS THUS POTENTIALLY SO MISLEADING AND

  PREJUDICIAL AS TO DEPRIVE RESPONDENT OF A CONSTITUTIONALLY FAIR

  TRIAL.  HELD: IN THE CIRCUMSTANCES OF THIS CASE, WHERE THE

  PROSECUTOR'S AMBIGUOUS REMARK IN THE COURSE OF AN EXTENDED TRIAL

  WAS FOLLOWED BY THE TRIAL COURT'S SPECIFIC DISAPPROVING

  INSTRUCTIONS, NO PREJUDICE AMOUNTING TO A DENIAL OF

  CONSTITUTIONAL DUE PROCESS WAS SHOWN.  MILLER V. PATE, 386 U.S.

  1; BRADY V. MARYLAND, 373 U.S. 83, DISTINGUISHED.  PP. 642 -

648. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ.,

  JOINED.  STEWART, J., FILED A CONCURRING OPINION, IN WHICH WHITE,

  J., JOINED, POST, P. 648.  DOUGLAS, J., FILED A DISSENTING

  OPINION, IN PART II OF WHICH BRENNAN AND MARSHALL, JJ., JOINED,

  POST, P. 648. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENT WAS TRIED BEFORE A JURY IN MASSACHUSETTS SUPERIOR COURT
AND CONVICTED OF FIRST-DEGREE MURDER.  /1/  THE JURY RECOMMENDED THAT
THE DEATH PENALTY NOT BE IMPOSED, AND RESPONDENT WAS SENTENCED TO LIFE
IMPRISONMENT.  HE APPEALED TO THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS CONTENDING, INTER ALIA, THAT CERTAIN OF THE PROSECUTOR'S
REMARKS DURING CLOSING ARGUMENT DEPRIVED HIM OF HIS CONSTITUTIONAL
RIGHT TO A FAIR TRIAL.  THE SUPREME JUDICIAL COURT AFFIRMED.  /2/  THAT
COURT ACKNOWLEDGED THAT THE PROSECUTOR HAD MADE IMPROPER REMARKS, BUT
DETERMINED THAT THEY WERE NOT SO PREJUDICIAL AS TO REQUIRE REVERSAL. 

RESPONDENT THEN SOUGHT HABEAS CORPUS RELIEF IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.  THE DISTRICT COURT
DENIED RELIEF, STATING:  "(THE PROSECUTOR'S ARGUMENTS WERE NOT SO
PREJUDICIAL AS TO DEPRIVE (DECHRISTOFORO) OF HIS CONSTITUTIONAL RIGHT
TO A FAIR TRIAL."  /3/  THE COURT OF APPEALS FOR THE FIRST CIRCUIT
REVERSED BY A DIVIDED VOTE.  /4/  THE MAJORITY HELD THAT THE
PROSECUTOR'S REMARKS DELIBERATELY CONVEYED THE FALSE IMPRESSION THAT
RESPONDENT HAD UNSUCCESSFULLY SOUGHT TO PLEAD TO A LESSER CHARGE AND
THAT THIS CONDUCT WAS A DENIAL OF DUE PROCESS.  WE GRANTED CERTIORARI,
414 U.S. 974 (1973), TO CONSIDER WHETHER SUCH REMARKS, IN THE CONTEXT
OF THE ENTIRE TRIAL, WERE SUFFICIENTLY PREJUDICIAL TO VIOLATE
RESPONDENT'S DUE PROCESS RIGHTS.  WE HOLD THEY WERE NOT AND SO
REVERSE. 

I 

RESPONDENT AND TWO COMPANIONS WERE INDICTED FOR THE FIRST-DEGREE
MURDER OF JOSEPH LANZI, A PASSENGER IN THE CAR IN WHICH THE DEFENDANTS
WERE RIDING.  POLICE HAD STOPPED THE CAR AT APPROXIMATELY 4 A.M. ON
APRIL 18, 1967, AND HAD DISCOVERED LANZI'S DEAD BODY ALONG WITH TWO
FIREARMS, ONE OF WHICH HAD BEEN FIRED.  A SECOND GUN, ALSO RECENTLY
FIRED, WAS FOUND A SHORT DISTANCE AWAY.  RESPONDENT AND ONE COMPANION
AVOIDED APPREHENSION AT THAT TIME, BUT THE THIRD DEFENDANT WAS TAKEN
INTO CUSTODY.  HE LATER PLEADED QUILTY TO SECOND-DEGREE MURDER. 

RESPONDENT AND THE OTHER DEFENDANT, GAGLIARDI, WERE FINALLY CAPTURED
AND TRIED JOINTLY.  THE PROSECUTOR MADE LITTLE CLAIM THAT RESPONDENT
FIRED ANY SHOTS BUT ARGUED THAT HE WILLINGLY ASSISTED IN THE KILLING. 
RESPONDENT, ON THE OTHER HAND, MAINTAINED THAT HE WAS AN INNOCENT
PASSENGER.  AT THE CLOSE OF THE EVIDENCE BUT BEFORE FINAL ARGUMENT,
GAGLIARDI ELECTED TO PLEAD GUILTY TO A CHARGE OF SECOND-DEGREE MURDER. 
THE COURT ADVISED THE JURY THAT GAGLIARDI HAD PLEADED GUILTY AND THAT
RESPONDENT'S TRIAL WOULD CONTINUE.  /5/  RESPONDENT DID NOT SEEK AN
INSTRUCTION THAT THE JURY WAS TO DRAW NO INFERENCE FROM THE PLEA, AND
NO SUCH INSTRUCTION WAS GIVEN. 

RESPONDENT'S CLAIMS OF CONSTITUTIONAL ERROR FOCUS ON TWO REMARKS
MADE BY THE PROSECUTOR DURING THE COURSE OF HIS RATHER LENGTHLY CLOSING
ARGUMENT TO THE JURY.  THE FIRST INVOLVED THE EXPRESSION OF A PERSONAL
OPINION AS TO GUILT,  /6/  PERHAPS OFFERED TO REBUT A SOMEWHAT
PERSONALIZED ARGUMENT BY RESPONDENT'S COUNSEL.  THE MAJORITY OF THE
COURT OF APPEALS AGREED WITH THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS THAT THIS REMARK WAS IMPROPER, BUT DECLINED TO REST ITS
HOLDING OF A VIOLATION OF DUE PROCESS ON THAT REMARK.  /7/  IT TURNED
TO A SECOND REMARK THAT IT DEEMED "MORE SERIOUS." 

THE PROSECUTOR'S SECOND CHALLENGED COMMENT WAS DIRECTED AT
RESPONDENT'S MOTIVES IN STANDING TRIAL: "THEY (THE RESPONDENT AND HIS
COUNSEL) SAID THEY HOPE THAT YOU FIND HIM NOT GUILTY.  I QUITE FRANKLY
THINK THAT THEY HOPE THAT YOU FIND HIM GUILTY OF SOMETHING A LITTLE
LESS THAN FIRST-DEGREE MURDER."  /8/  RESPONDENT'S COUNSEL OBJECTED
IMMEDIATELY TO THE STATEMENT AND LATER SOUGHT AN INSTRUCTION THAT THE
REMARK WAS IMPROPER AND SHOULD BE DISREGARDED.  /9/ THE COURT THEN GAVE
THE FOLLOWING INSTRUCTION: 

"CLOSING ARGUMENTS ARE NOT EVIDENCE FOR YOUR CONSIDERATION.  . . . 

 "NOW IN HIS CLOSING, THE DISTRICT ATTORNEY, I NOTED, MADE A

  STATEMENT: 'I DON'T KNOW WHAT THEY WANT YOU TO DO BY WAY OF A

  VERDICT.  THEY SAID THEY HOPE THAT YOU FIND HIM NOT GUILTY.  I

  QUITE FRANKLY THINK THAT THEY HOPE THAT YOU FIND HIM GUILTY OF

  SOMETHING A LITTLE LESS THAN FIRST-DEGREE MURDER.'  THERE IS NO

  EVIDENCE OF THAT WHATSOEVER, OF COURSE, YOU ARE INSTRUCTED TO

  DISREGARD THAT STATEMENT MADE BY THE DISTRICT ATTORNEY. 

     "CONSIDER THE CASE AS THOUGH NO SUCH STATMENT WAS MADE." 
/10/ 

THE MAJORITY OF THE SUPREME COURT OF MASSACHUSETTS, THOUGH AGAIN NOT
DISPUTING THAT THE REMARK WAS IMPROPER, HELD THAT IT WAS NOT SO
PREJUDICIAL AS TO REQUIRE A MISTRIAL AND FURTHER STATED THAT THE TRIAL
JUDGE'S INSTRUCTION "WAS SUFFICIENT TO SAFEGUARD THE DEFENDANT'S
RIGHTS."  /11/  DESPITE THIS DECISION AND THE DISTRICT COURT'S DENIAL
OF A WRIT OF HABEAS CORPUS, THE COURT OF APPEALS FOUND THAT THE COMMENT
WAS POTENTIALLY SO MISLEADING AND PREJUDICIAL THAT IT DEPRIVED
RESPONDENT OF A CONSITUTIONALLY FAIR TRIAL. 

THE COURT OF APPEALS REASONED THAT THE JURY WOULD BE NATURALLY
CURIOUS ABOUT RESPONDENT'S FAILURE TO PLEAD GUILTY AND THAT THIS
CURIOSITY WOULD BE HEIGHTENED BY GAGLIARDI'S DECISION TO PLEAD GUILTY
AT THE CLOSE OF THE EVIDENCE.  IN THIS CONTEXT, THE COURT THOUGHT, THE
PROSECUTOR'S COMMENT THAT RESPONDENT HOPED FOR CONVICTION ON A LESSER
OFFENSE WOULD SUGGEST TO THE JURY THAT RESPONDENT HAD SOUGHT TO PLEAD
QUILTY BUT HAD BEEN REFUSED.  SINCE THE PROSECUTOR WAS IN A POSITION TO
KNOW SUCH FACTS, THE JURY MAY WELL HAVE SUMISED THAT RESPONDENT HAD
ALREADY ADMITTED GUILT IN AN ATTEMPT TO SECURE REDUCED CHARGES.  THIS,
SAID THE COURT OF APPEALS, IS THE INVERSE OF, BUT A PARALLEL TO,
INTENTIONAL SUPPRESSION OF FAVORABLE EVIDENCE.  THE PROSECUTOR HAD
DELIBERATELY MISLED THE JURY, AND EVEN IF THE STATMENT WAS MADE
THOUGHTLESSLY, "IN A FIRST-DEGREE MURDER CASE THERE MUST BE SOME DUTY
ON A PROSECUTOR TO BE THOUGHTFUL."  /12/  THEREFORE, THE DISTRICT COURT
HAD ERRED IN DENYING RESPONDENT'S PETITION. 

        II 

THE COURT OF APPEALS IN THIS CASE NOTED, AS PETITIONER URGED, THAT
ITS REVIEW WAS "THE NARROW ONE OF DUE PROCESS, AND NOT THE BROAD
EXERCISE OF SUPERVISORY POWER THAT (IT) WOULD POSSESS IN REGARD TO
(ITS) OWN TRIAL COURT."  /13/  WE REGARD THIS OBSERVATION AS IMPORTANT
FOR NOT EVERY TRIAL ERROR OR INFIRMITY WHICH MIGHT CALL FOR APPLICATION
OF SUPERVISORY POWERS CORRESPONDINGLY CONSTITUTES A "FAILURE TO OBSERVE
THAT FUNDAMENTAL FAIRNESS ESSENTIAL TO THE VERY CONCEPT OF JUSTICE." 
LISENBA V. CALIFORNIA, 314 U.S. 219, 236 (1941).  WE STATED ONLY THIS
TERM IN CUPP V. NAUGHTEN, 414 U.S. 141 (1973), WHEN REVIEWING AN
INSTRUCTION GIVEN IN A STATE COURT: 

"BEFORE A FEDERAL COURT MAY OVERTURN A CONVICTION RESULTING FROM A
STATE TRIAL IN WHICH THIS INSTRUCTION WAS USED, IT MUST BE ESTABLISHED
NOT MERELY THAT THE INSTRUCTION IS UNDERSIRABLE, ERRONEOUS, OR EVEN
'UNIVERSALLY CONDEMNED,' BUT THAT IT VIOLATED SOME RIGHT WHICH WAS
GUARANTEED TO THE DEFENDANT BY THE FOURTEENTH AMENDMENT."  /14/ 

THIS IS NOT A CASE IN WHICH THE STATE HAD DENIED A DEFENDANT THE
BENEFIT OF A SPECIFIC PROVISION OF THE BILL OF RIGHTS, SUCH AS THE
RIGHT TO COUNSEL, ARGERSINGER V. HAMLIN, 407 U.S. 25 (1972), OR IN
WHICH THE PROSECUTOR'S REMARKS SO PREJUDICED A SPECIFIC RIGHT, SUCH AS
THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION, AS TO AMOUNT TO A
DENIAL OF THAT RIGHT.  GRIFFIN, V. CALIFORNIA, 380 U.S. 609 (1965). 
/15/  WHEN SPECIFIC GUARANTEES OF THE BILL OF RIGHTS ARE INVOLVED, THIS
COURT HAS TAKEN SPECIAL CARE TO ASSURE THAT PROSECUTORIAL CONDUCT IN NO
WAY IMPERMISSIBLY INFRINGES THEM.  BUT HERE THE CLAIM IS ONLY THAT A
PROSECUTOR'S REMARK ABOUT RESPONDENT'S EXPECTATIONS AT TRIAL BY ITSELF
SO INFECTED THE TRIAL WITH UNFAIRNESS AS TO MAKE THE RESULTING
CONVICTION A DENIAL OF DUE PROCESS.  WE DO NOT BELIEVE THAT EXAMINATION
OF THE ENTIRE PROCEEDINGS IN THIS CASE SUPPORTS THAT CONTENTION. 

CONFLICTING INFERENCES HAVE BEEN DRAWN FROM THE PROSECUTOR'S
STATEMENT BY THE COURTS BELOW.  ALTHOUGH THE COURT OF APPEALS STATED
FLATLY THAT "THE PROSECUTING ATTORNEY TURNED GAGLIARDI'S PLEA INTO A
TELLING STROKE AGAINST (DECHRISTOFORO)"  /16/  BY IMPLYING RESPONDENT
HAD OFFERED TO PLEAD GUILTY AS WELL, THE DISSENT FOUND THE INFERENCE TO
BE "FAR LESS OBVIOUS."  /17/  THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS STATED THAT IT CONSIDERED THE SAME ARGUMENT ILLOGICAL: 

"IT IS NOT LOGICAL TO CONCLUDE THAT THE JURY WOULD ACCEPT ANY
IMPLIED ARGUMENT OF THE PROSECUTOR THAT, BECAUSE ONE OF THE MEN WHOM
THE DEFENDANT BLAMED FOR THE MURDER HAD PLEADED GUILTY, THE DEFENDANT
WAS ANY LESS FIRM IN HIS ASSERTION THAT HE HIMSELF WAS NOT GUILTY OF
ANY CRIME WHATSOEVER."  /18/ THUS IT IS BY NO MEANS CLEAR THAT THE JURY
DID ENGAGE IN THE HYPOTHETICAL ANALYSIS SUGGESTED BY THE MAJORITY OF
THE COURT OF APPEALS, OR EVEN PROBABLE THAT IT WOULD SEIZE SUCH A
COMMENT OUT OF CONTEXT AND ATTACH THIS PARTICULAR MEANING TO IT.  FIVE
JUSTICES OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS AND AT LEAST
ONE FEDERAL JUDGE HAVE ALL CONFESSED DIFFICULTY IN MAKING THIS
SPECULATIVE CONNECTION. 

IN ADDITION, THE TRIAL COURT TOOK SPECIAL PAINS TO CORRECT ANY
IMPRESSION THAT THE JURY COULD CONSIDER THE PROSECUTOR'S STATEMENTS AS
EVIDENCE IN THE CASE.  THE PROSECUTOR, AS IS CUSTOMARY, HAD PREVIOUSLY
TOLD THE JURY THAT HIS ARGUMENT WAS NOT EVIDENCE, /19/  AND THE TRIAL
JUDGE SPECIFICALLY RE-EMPHASIZED THAT POINT.  THEN THE JUDGE DIRECTED
THE JURY'S ATTENTION TO THE REMARK PARTICULARLY CHALLENGED HERE,
DECLARED IT TO BE UNSUPPORTED, AND ADMONISHED THE JURY TO IGNORE IT. 
/20/  ALTHOUGH SOME OCCURRENCES AT TRIAL MAY BE TOO CLEARLY PREJUDICIAL
FOR SUCH A CURATIVE INSTRUCTION TO MITIGATE THEIR EFFECT, THE COMMENT
IN THIS CASE IS HARDLY OF SUCH CHARACTER. 

IN CUPP V. NAUGHTEN, SUPRA, THE RESPONDENT HAD CHALLENGED HIS
CONVICTION ON THE GROUND THAT A "PRESUMPTION OF TRUTHFULNESS"
INSTRUCTION, GIVEN BY THE STATE TRIAL COURT, HAD DEPRIVED HIM OF THE
PRESUMPTION OF INNONENCE AND HAD SHIFTED THE STATE'S BURDEN OF PROOF TO
HIMSELF.  HOLDING THAT THE INSTRUCTION, ALTHOUGH PERHAPS NOT ADVISABLE,
DID NOT VIOLATE DUE PROCESS, WE STATED: 

    "IN DETERMINING THE EFFECT OF THIS INSTRUCTION ON THE VALIDITY

  OF RESPONDENT'S CONVICTION, WE ACCEPT AT THE OUTSET THE

  WELL-ESTABLISHED PROPOSITION THAT A SINGLE INSTRUCTION TO A JURY

  MAY NOT BE JUDGED IN ARTIFICAL ISOLATION, BUT MUST BE VIEWED IN

  THE CONTEXT OF THE OVERALL CHARGE.  BOYD V. UNITED STATES, 271

  U.S. 104, 107 (1926).  WHILE THIS DOES NOT MEAN THAT AN

  INSTRUCTION BY ITSELF MAY NEVER RISE TO THE LEVEL OF

  CONSTITUTIONAL ERROR, SEE COOL V. UNITED STATES, 409 U.S. 100

  (1972), IT DOES RECOGNIZE THAT A JUDGMENT OF CONVICTION IS

  COMMONLY THE CULMINATION OF A TRIAL WHICH INCLUDES TESTIMONY OF

  WITNESSES, ARGUMENT OF COUNSEL, RECEIPT OF EXHIBITS IN EVIDENCE,

  AND INSTRUCTION OF THE JURY BY THE JUDGE.  THUS NOT ONLY IS THE

  CHALLENGED INSTRUCTION BUT ONE OF MANY SUCH INSTRUCTIONS, BUT THE

  PROCESS OF INSTRUCTION ITSELF IS BUT ONE SEVERAL COMPONENTS OF

  THE TRIAL WHICH MAY RESULT IN THE JUDGMENT OF CONVICTION."  /21/

SIMILARLY, THE PROSECUTOR'S REMARK HERE, ADMITTEDLY AN AMBIGUOUS ONE,
WAS BUT ONE MOMENT IN AN EXTENDED TRIAL AND WAS FOLLOWED BY SPECIFIC
DISAPPROVING INSTRUCTIONS.  ALTHOUGH THE PROCESS OF CONSTITUTIONAL LINE
DRAWING IN THIS REGARD IS NECESSARILY IMPRECISE, WE SIMPLY DO NOT
BELIEVE THAT THIS INCIDENT MADE RESPONDENT'S TRIAL SO FUNDAMENTALLY
UNFAIR AS TO DENY HIM DUE PROCESS. 

WE DO NOT FIND THE CASES CITED BY THE COURT OF APPEALS TO REQUIRE A
DIFFERENT RESULT.  IN MILLER V. PATE, 386 U.S. 1 (1967), THE PRINCIPAL
CASE RELIED UPON, THIS COURT HELD THAT A STATE PRISONER WAS ENTITLED TO
FEDERAL HABEAS RELIEF UPON A SHOWING THAT A PAIR OF STAINED
UNDERSHORTS, ALLEGEDLY BELONGING TO THE PRISONER AND REPEATEDLY
DESCRIBED BY THE STATE DURING TRIAL AS STAINED WITH BLOOD, WAS IN FACT
STAINED WITH PAINT.  IN THE COURSE OF ITS OPINION, THIS COURT SAID: 

     "IT WAS FURTHER ESTABLISHED THAT COUNSEL FOR THE PROSECUTION

  HAD KNOWN AT THE TIME OF THE TRIAL THAT THE SHORTS WERE STAINED

  WITH PAINT.  . . . 

      ". . . THE RECORD OF THE PETITIONER'S TRIAL REFLECTS THE

  PROSECUTION'S CONSISTENT AND REPEATED MISREPRESENTATION THAT

  PEOPLE'S EXHIBIT 3 WAS, INDEED, 'A GARMENT HEAVILY STAINED WITH

  BLOOD.'"  ID., AT 6. 

A LONG SERIES OF DECISIONS IN THIS COURT, /22/  OF COURSE, HAD
ESTABLISHED THE PROPOSITION THAT THE "FOURTEENTH AMENDMENT CANNOT
TOLERATE A STATE CRIMINAL CONVICTION OBTAINED BY THE KNOWING USE OF
FALSE EVIDENCE."  ID., AT 7.  THE COURT IN MILLER FOUND THOSE CASES
CONTROLLING. 

WE COUNTENANCE NO RETREAT FROM THAT PROPOSITION IN OBSERVING THAT IT
FALLS FAR SHORT OF EMBRACING THE PROSECTOR'S REMARK IN THIS CASE.  THE
"CONSISTENT AND REPEATED MISREPRESENTATION" OF A DRAMATIC EXHIBIT IN
EVIDENCE MAY PROFOUNDLY IMPRESS A JURY AND MAY HAVE A SIGNIFICANT
IMPACT ON THE JURY'S DELIBERATIONS.  ISOLATED PASSAGES OF A
PROSECUTOR'S ARGUMENT, BILLED IN ADVANCE TO THE JURY AS A MATTER OF
OPINION NOT OF EVIDENCE, DO NOT REACH THE SAME PROPORTIONS.  SUCH
ARGUMENTS, LIKE ALL CLOSING ARGUMENTS OF COUNSEL, ARE SELDOM CAREFULLY
CONSTRUCTED IN TOTO BEFORE THE EVENT; IMPROVISION FREQUENTLY RESULTS IN
SYNTAX LEFT IMPERFECT AND MEANING LESS THAN CRYSTAL CLEAR.  WHILE THESE
GENERAL OBSERVATIONS IN NO WAY JUSTIFY PROSECUTORIAL MISCONDUCT, THEY
DO SUGGEST THAT A COURT SHOULD NOT LIGHTLY INFER THAT A PROSECUTOR
INTENDS AN AMBIGUOUS REMARK TO HAVE ITS MOST DAMAGING MEANING OR THAT A
JURY, SITTING THROUGH LENGTHY EXHORTATION, WILL DRAW THAT MEANING FROM
THE PLETHORA OF LESS DAMAGING INTERPRETATIONS. 

THE COURT OF APPEALS' RELIANCE ON BRADY V. MARYLAND, 373 U.S. 83
(1963), IS LIKEWISE MISPLACED.  IN BRADY, THE PROSECUTOR HAD WITHHELD
EVIDENCE, A STATEMENT BY THE PETITIONER'S CODEFENDANT, WHICH WAS
DIRECTLY RELEVANT TO THE EXTENT OF THE PETITIONER'S INVOLVEMENT IN THE
CRIME.  SINCE THE PETITIONER HAD TESTIFIED THAT HIS CODEFENDANT HAD
DONE THE ACTUAL SHOOTING AND SINCE THE PETITIONER'S COUNSEL WAS NOT
CONTESTING GUILT BUT MERELY SEEKING TO AVOID THE DEATH PENALTY,
EVIDENCE OF THE DEGREE OF THE PETITIONER'S PARTICIPATION WAS HIGHLY
SIGNIFICANT TO THE PRIMARY JURY ISSUE.  AS IN MILLER, MANIPULATION OF
THE EVIDENCE BY THE PROSECUTION WAS LIKELY TO HAVE AN IMPORTANT EFFECT
ON THEY JURY'S DETERMINATION.  BUT HERE THERE WAS NEITHER THE
INTRODUCTION OF SPECIFIC MISLEADING EVIDENCE IMPORTANT TO THE
PROSECUTION'S CASE IN CHIEF NOR THE NONDISCLOSURE OF SPECIFIC EVIDENCE
VALUABLE TO THE ACCUSED'S DEFENSE.  THERE WERE INSTEAD A FEW BRIEF
SENTENCES IN THE PROSECUTOR'S LONG AND EXPECTABLY HORTATORY CLOSING
ARGUMENT WHICH MIGHT OR MIGHT NOT SUGGEST TO A JURY THAT THE RESPONDENT
HAD UNSUCCESSFULLY SOUGHT TO BARGAIN FOR A LESSER CHARGE.  WE FIND
NOTHING IN BRADY TO SUGGEST THAT DUE PROCESS IS SO EASILY DENIED. 

THE RESULT REACHED BY THE COURT OF APPEALS IN THIS CASE LEAVES
VIRTUALLY MEANINGLESS THE DISTINCTION BETWEEN ORDINARY TRIAL ERROR OF A
PROSECUTOR AND THAT SORT OF EGREGIOUS MISCONDUCT HELD IN MILLER AND
BRADY, SUPRA, TO AMOUNT TO A DENIAL OF CONSTITUTIONAL DUE PROCESS. 
/23/  SINCE WE BELIEVE THAT DISTINCTION SHOULD CONTINUE TO BE OBSERVED,
WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

             IT IS SO ORDERED. 

/1/  RESPONDENT AND HIS CODEFENDANTS WERE ALSO INDICTED FOR ILLEGAL
POSSESSION OF FIREARMS, AND RESPONDENT RECEIVED A FOUR- TO FIVE-YEAR
SENTENCE ON THAT CHARGE.  THE CONVICTION IS IN NO WAY RELATED TO THE
ISSUES BEFORE THE COURT IN THIS CASE. 

/2/  COMMONWEALTH V. DECHRISTOFORO, --MASS.  --, 277 N.E.2D 100
(1971). 

/3/  APP. 231. 

/4/  473 F.2D 1236 (1973). 

/5/  THE TRIAL COURT STATED: 

"MR. FOREMAN,MADAM AND GENTLEMEN OF THE JURY.  YOU WILL NOTICE THAT
THE DEFENDANT GAGLIARDI IS NOT IN THE DOCK.  HE HAS PLEADED 'GUILTY,'
AND HIS CASE HAS BEEN DIPOSED OF. 

"WE WILL, THEREFORE, GO FORWARD WITH THE TRIAL OF THE CASE OF
COMMONWEALTH VS DECHRISTOFORO."  APP. 99. 

/6/  THE CHALLENGED REMARK WAS THAT "I HONESTLY AND SINCERELY
BELIEVE THAT THERE IS NO DOUBT IN THIS CASE, NONE WHATSOEVER."  ID., AT
130. 

/7/  THE COURT OF APPEALS NOTED: "(AT LEAST THE JURY KNOWS THAT THE
PROSECUTOR IS AN ADVOCATE AND IT MAY BE EXPECTED, TO SOME DEGREE, TO
DISCOUNT SUCH REMARKS AS SELLER'S TALK."  473 F.2D, AT 1238. 

/8/  APP. 129. 

/9/  NO INSTRUCTION WAS SOUGHT AT THE TIME ALTHOUGH THE COURT
APPARENTLY WAS WILLING TO GIVE ONE.  THE TRIAL JUDGE LATER TOLD
COUNSEL:  "(HAD THERE BEEN A MOTION MADE BY YOU AT THAT TIME TO HAVE ME
INSTRUCT THE JURY ALONG THE LINES OF ELIMINATING THAT FROM THEIR MINDS,
OR SOMETHING OF THAT NATURE, I CERTIANLY WOULD HAVE COMPLIED, BECAUSE I
DID CONSIDER AT THE TIME THE ARGUMENT WAS BEYOND THE GROUNDS OF
COMPLETE PROPREITY, BUT CERTAINLY FAR FROM BEING GROUNDS FOR A
MISTRIAL."  ID., AT 133. 

/10/  ID., AT 143 - 144. 

/11/  __ MASS., AT __, 277 N.E.2D, AT 105. 

/12/  473 F.2D, AT 1240. 

/13/  ID., AT 1238. 

/14/  414 U.S., AT 146. 

/15/  RESPONDENT DOES SUGGEST THAT THE PROSECUTOR'S STATEMENTS MAY
HAVE DEPRIVED HIM OF THE RIGHT TO CONFRONTATION.  SEE POINTER V. TEXAS,
380 U.S. 400 (1965).  BUT THIS ARGUMENT IS WITHOUT MERIT, FOR THE
PROSECUTOR HERE SIMPLY STATED HIS OWN OPINION AND INTRODUCED NO
STATEMENTS MADE BY PERSONS UNAVAILABLE FOR QUESTIONING AT TRIAL. 

/16/  473 F.2D, AT 1239. 

/17/  ID., AT 1241 (CAMPBELL, J., DISSENTING). 

/18/  APP. 157. 

/19/  ID., AT 119. 

/20/  SEE N.10, SUPRA. 

/21/  414 U.S., AT 146 - 147. 

/22/  SEE, E.G., MOONEY V. HOLOHAN, 294 U.S. 103 (1935); NAPUE V.
ILLINOIS, 360 U.S. 264 (1959). 

/23/  WE DO NOT, BY THIS DECISION, IN ANY WAY CONDONE PROSECUTORIAL
MISCONDUCT, AND WE BELIEVE THAT TRIAL COURTS, BY ADMONITION AND
INSTRUCTION, AND APPELLATE COURTS, BY PROPER EXERCISE OF THEIR
SUPERVISORY POWER, WILL CONTINUE TO DISCOURAGE IT.  WE ONLY SAY THAT,
IN THE CIRCUMSTANCES OF THE CASE, NO PREJUDICE AMOUNTING TO A DENIAL OF
CONSTITUTIONAL DUE PROCESS WAS SHOWN. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE WHITE JOINS, CONCURRING. 

I AGREE WITH MY BROTHER DOUGLAS THAT, WHEN NO NEW PRINCIPLE OF LAW
IS PRESENTED, WE SHOULD GENERALLY LEAVE UNDISTURBED THE DECISION OF A
COURT OF APPEALS THAT UPON THE PARTICULAR FACTS OF ANY CASE HABEAS
CORPUS RELIEF SHOULD BE GRANTED--OR DENIED.  FOR THIS REASON I THINK IT
WAS A MISTAKE TO GRANT A WRIT OF CERTIORARI IN THIS CASE, AND I WOULD
NOW DISMISS THE WRIT AS IMPROVIDENTLY GRANTED. 

WE ARE BOUND HERE, HOWEVER, BY THE "RULE OF FOUR."  THAT RULE
ORDAINS THAT THE VOTES OF FOUR JUSTICES ARE ENOUGH TO GRANT CERTIORARI
AND BRING A CASE BEFORE THE COURT FOR DECISION ON THE MERITS.  IF AS
MANY AS FOUR JUSTICES REMAIN SO MINDED AFTER ORAL ARGUMENT, DUE
ADHERENCE TO THAT RULE REQUIRES ME TO ADDRESS THE MERITS OF A CASE,
HOWEVER STRONGLY I MAY FEEL THAT IT DOES NOT BELONG IN THIS COURT.  SEE
FERGUSON V. MOORE-MCCORMACK LINES, 352 U.S. 521, 559 (SEPARATE OPINION
OF HARLAN, J.). 

UPON THIS PREMISE, I JOIN THE COURT'S OPINION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE FUNCTION OF THE PROSECUTOR UNDER THE FEDERAL CONSTITUTION IS NOT
TO TACK AS MANY SKINS OF VICTIMS AS POSSIBLE TO THE WALL.  HIS FUNCTION
IS TO VINDICATE THE RIGHT OF PEOPLE AS EXPRESSED IN THE LAWS AND GIVE
THOSE ACCUSED OF CRIME A FAIR TRIAL.  AS STATED BY THE COURT IN BERGER
V. UNITED STATES, 295 U.S. 78, 88: 

  "THE UNITED STATES ATTORNEY IS THE REPRESENTATIVE NOT OF AN

  ORDINARY PARTY TO A CONTROVERSY, BUT OF A SOVEREIGNTY WHOSE

  OBLIGATION TO GOVERN AT ALL; AND WHOSE INTEREST, THEREFORE, IN A

  CRIMINAL PROSECUTION IS NOT THAT IT SHALL WIN A CASE, BUT THAT

  JUSTICE SHALL BE DONE.  AS SUCH, HE IS IN A PECULIAR AND VERY

  DEFINITE SENSE THE SERVANT OF THE LAW, THE TWOFOLD AIM OF WHICH

  IS THAT GUILT SHALL NOT ESCAPE OR INNONENCE SUFFER.  HE MAY

  PROSECUTE WITH EARNESTNESS AND VIGOR--INDEED, HE SHOULD DO SO.

  BUT, WHILE HE MAY STRIKE HARD BLOWS, HE IS NOT AT LIBERTY TO

  STRIKE FOUL ONES.  IT IS AS MUCH HIS DUTY TO REFRAIN FROM

  IMPROPER METHODS CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS

  IT IS TO USE EVERY LEGITIMATE MEANS TO BRING ABOUT A JUST ONE." 

WE HAVE HERE A STATE CASE, NOT A FEDERAL ONE; AND THE PROSECUTOR IS
A STATE OFFICIAL.  BUT WE DEAL WITH AN ASPECT OF A FAIR TRIAL WHICH IS
IMPLICIT IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY WHICH
THE STATES ARE BOUND.  CHAMBERS V. MISSISSIPPI, 410 U.S. 284; SHEPPARD
V. MAXWELL, 384 U.S. 333; TURNER V. LOUISIANA, 379 U.S. 466; IRVIN V.
DOWD, 366 U.S. 717. 

IN THIS CASE RESPONDENT WAS SHARGED WITH FIRST-DEGREE MURDER AND WAS
CONVICTED IN THE STATE COURT BY A JURY.  AT NO TIME DID HE SEEK TO
PLEAD GUILTY TO A LESSER OFFENSE.  IT IS STIPULATED: 

"(AT NO TIME DID DEFENDANT SEEK TO PLEAD GUILTY TO ANY OFFENSE; AT
NO TIME DID THE COMMONWEALTH SEEK TO SOLICIT OR OFFER TO ACCEPT A PLEA;
AND AT ALL TIMES DEFENDANT INSISTED UPON A TRIAL." 

A CODEFENDANT PLEADED GUILTY TO SECOND-DEGREE MURDER AND THE JURY
WAS ADVISED OF THE FACT. 

AS TO THE GUILT OF RESPONDENT THE PROSECUTOR TOLD THE JURY: "I
HONESTLY AND SINCERELY BELIEVE THAT THERE IS NO DOUBT IN THIS CASE,
NONE WHATSOEVER."  AND HE WENT ON TO SAY: "I QUITE FRANKLY THINK THAT
THEY HOPE THAT YOU FIND HIM GUILTY OF SOMETHING A LITTLE LESS THAN
FIRST-DEGREE MURDER." 

THESE STATEMENTS IN THE SETTING OF THE CASE AN IN LIGHT OF THE FACT
THAT THE JURY KNEW THE CODEFENDANT HAD PLEADED GUILTY TO SECOND-DEGREE
MURDER, ARE A SUBTLE EQUIVALENT OF A STATEMENT BY THE PROSECUTOR THAT
RESPONDENT SOUGHT A LESSER PENALTY.  COUNSEL FOR RESPONDENT IMMEDIATELY
OBJECTED BUT THE COURT AT THE TIME DID NOT ADMONISH THE PROSECUTOR OR
TELL THE JURY TO DISREGARD THE STATEMENT, THOUGH IT DID COVER THE
MATTER LATER IN ITS GENERAL INSTRUCTION. 

 I 

AS A MATTER OF FEDERAL LAW THE INTRODUCTION OF A WITHDRAWN PLEA OF
GUILTY IS NOT ADMISSIBLE EVIDENCE, KERCHEVAL V. UNITED STATES, 274 U.S.
220.  AS A MATTER OF PROCEDURAL DUE PROCESS THE CONFRONTATION CLAUSE OF
THE SIXTH AMENDM,ENT, APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH AMENDMENT, POINTER V. TEXAS, 380 U.S. 400, WOULD BAR A
PERSON FROM TESTIFYING THAT THE DEFENDANT HAD SOUGHT A GUILTY PLEA
UNLESS THE RIGHT OF CROSS-EXAMINATION OF THE WITNESS WAS AFFORDED, ID.,
AT 406 - 408.  THAT REQUIREMENT OF PROCEDURAL DUE PROCESS SHOULD BE
SEDULOUSLY ENFORCED (SAVE FOR THE RECOGNIZED EXCEPTIONS OF DYING
DECLARATIONS AND THE LIKE, ID., AT 407) LEST THE THEORY THAT THE END
JUSTIFIES THE MEANS GAINS FURTHER FOOTHOLDS HERE.  THE PROSECUTOR IS
NOT A WITNESS; AND HE SHOULD NOT BE PERMITTED TO ADD TO THE RECORD
EITHER BY SUBTLE OR GROSS IMPROPRIETIES.  THOSE WHO HAVE EXPERIENCED
THE FULL THRUST OF THE POWER OF GOVERNMENT WHEN LEVELED AGAINST THEM
KNOW THAT THE ONLY PROTECTION THE CITIZEN HAS IS IN THE REQUIREMENT FOR
A FAIR TRIAL.  THE ASSURANCE OF THE COURT THAT WE MAKE NO RETREAT FROM
CONSTITUTIONAL GOVERNMENT BY TODAY'S DECISION HAS THEREFORE A HOLLOW
RING. 

ACTIVIST JUDGES HAVE BROUGHT FEDERAL HABEAS CORPUS INTO DISREPUTE AT
THE PERSENT TIME.  IT IS GUARANTEED BY THE CONSTITUTION.  IT IS A BUILT
IN RESTRAINT ON JUDGES--BOTH STATE AND FEDERAL; AND IT IS ALSO A
RESTRAINT ON PROSECUTORS WHO ARE OFFICERS OF THE COURT.  OUR ACTIVIST
TENDENCIES SHOULD PROMOTE NOT LAW AND ORDER, BUT CONSTITUTIONAL LAW AND
ORDER.  JUDGES, TOO, CAN BE TYRANTS AND OFTEN HAVE BEEN.  PROSECUTORS
ARE OFTEN EAGER TO TAKE ALMOST ANY SHORTCUT TO WIN, YET AS I HAVE SAID
THEY REPRESENT NOT AN ORDINARY PARTY BUT WE THE PEOPLE.  AS I HAVE
NOTED, THEIR DUTY IS AS MUST "TO REFRAIN FROM IMPROPER METHODS
CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS IT IS TO USE EVERY
LEGITIMATE MEANS TO BRING ABOUT A JUST ONE," BERGER V. UNITED STATES,
SUPRA, AT 88. 

IT IS, I SUBMIT, "IMPROPER" FOR A PROSECUTOR TO INSINUATE TO THE
JURY OF EVIDENCE NOT IN THE RECORD AND WHICH COULD NOT BE INTRODUCED
WITHOUT THE PRIVILEGE OF CROSS-EXAMINATION. 

        II 

THE SUPREME JUDICIAL COURT OF MASSACHUSETTS HAD DIFFICULTY WITH CASE
WHEN IT CAME BEFORE IT ON DIRECT APPEAL, TWO JUSTICES, WHICH INCLUDED
THE CHIEF JUSTICE, DISSENTING, /1/  COMMONWEALTH V. DECHRISTOFORO, --
MASS. --, 277 N.E.2D 100.  THE COURT OF APPEALS WAS ALSO DIVIDED 473
F.2D 1236.  OUR FEDERAL DISTRICT COURTS AND COURTS OF APPEALS ARE MUSH
CLOSER TO LAW ADMINISTRATION IN THE RESPECTIVE STATES THAN ARE WE IN
WASHINGTON, D. C. THEY ARE RESPONSIBLE FEDERAL JUDGES WHO KNOW THE
FEDERAL CONSTITUTION AS WELL AS WE DO.  THEIR ERROR IN ISSUING THE
GREAT WRIT--OR IN REFUSING TO DO SO--WOULD IN MY JUDGMENT HAVE TO BE
EGREGIOUS FOR US TO GRANT A PETITION FOR CERTIORARI.  WHEN A COURT OF
APPEALS HONORS THE CONSTITUTION BY GRANTING THE GREAT WRIT OR IN ITS
SOLEMN JUDGMENT DENIES IT, WE SHOULD LET THE MATTER REST THERE, SAVE
FOR MANIFEST ERROR. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  CHIEF JUSTICE TAURO SAID IN DISSENT: 

"THE PROSECUTOR'S ARGUMENT IN THE INSTANT CASE PERMITTED OR PERHAPS
EVEN SUGGESTED AN INFERENCE THAT THE DEFENDANT HAD CONCEDED HIS GUILT
AND WAS MERELY HOPING FOR SOMETHING A LITTLE LESS THAN A VERDICT OF
MURDER IN THE FIRST DEGREE. THIS DIMISHED HIS CHANCE FOR A FAIR TRIAL
TO A FAR GREATER DEGREE THAN WOULD HAVE THE PUBLICATION IN A NEWSPAPER
OF HIS CRIMINAL BACKGROUND.  UNLIKE A NEWPAPER, THE PROSECUTOR
OSTENSIBLY SPEAKS WITH THE AUTHORITY OF HIS OFFICE.  THE PROSECUTOR'S
'PERSONAL STATUS AND HIS ROLE AS A SPOKESMAN FOR THE GOVERNMENT TENDED)
TO GIVE TO WHAT HE . . .  (SAID) THE RING OF AUTHENTICITY . . .
TENDING) TO IMPART AN IMPLICIT STAMP OF BELIEVABILITY.'  HALL V. UNITED
STATES, 419 F.2D 582, 583 - 584 (5TH CIR.).  THE PROSECUTOR'S REMARKS
PROBABLY CALLED FOR A MISTRIAL.  IN ANY EVENT THE JUDGE'S FAILURE TO
INSTRUCT THE JURY ADEQUATELY AND WITH SUFFICIENT FORCE TO ELIMINATE THE
SERIOUS PREJUDICE TO THE DEFENDANT CONSTITUTES FATAL ERROR.  MOREOVER,
THE JUDGE'S ROUTINE FINAL INSTRUCTIONS TO THE JURY WERE FAR FROM
SUFFICIENT TO CORRECT THE ERROR.  BY THEN THE DEFENDANT'S POSITION HAD
SO DETERIORATED THAT HIS CHANCES FOR A FAIR DELIBERATION OF HIS FATE BY
THE JURY WERE VIRTUALLY ELIMINATED."  __ MASS., AT __, 277 N.E.2D, AT
112. 

MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL WOULD AFFIRM THE
JUDGMENT BELOW FOR THE REASONS STATED IN PART II OF THE DISSENT OF MR.
JUSTICE DOUGLAS. 

DAVID A. MILLS, ASSISTANT ATTORNEY GENERAL OF MASSACHUSETTS, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE ROBERT H. QUINN,
ATTORNEY GENERAL, JOHN J. IRWIN, JR., AND BARBARA A. H. SMITH,
ASSISTANT ATTORNEYS GENERAL. 

PAUL T. SMITH ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE HARVEY R. PETERS AND JEFFREY M. SMITH. 

MELVIN B. LEWIS FILED A BRIEF FOR THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE. 
..END :
















LEHMAN BROTHERS V. SCHEIN, 416 U.S. 386 


       LEHMAN BROTHERS V. SCHEIN ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

  SECOND CIRCUIT

        NO. 73 - 439.  ARGUED MARCH 19, 1974--DECIDED APRIL 29,

           1974; /1/  478 F.2D 817, VACATED AND REMANDED. 

/1/  TOGETHER WITH NO. 73-440, SIMON V. SCHEIN ET AL., AND NO. 73
495, INVESTORS DIVERSIFIED SERVICES, INC., ET AL. V. SCHEIN ET AL.,
ALSO ON CERTIORARI TO THE SAME COURT. 


    SHARHOLDERS' DERIVATIVE DEVERSITY SUITS WERE BROUGHT IN FEDERAL

  COURT IN NEW YORK, ALLEGING THAT THE PRESIDENT OF A FLORIDA

  CORPORATION AS A FIDUCIARY, WITH OTHERS, USED INSIDE INFORAMTION

  ABOUT PROJECTED CORPORATE EARNINGS FOR PROGIT AND HENCE WAS

  LIABLE TO THE CORPORATION FOR THE UNLAWFUL PROFITS.  THE DISTRICT

  COURT, LOOKING  TO NEW YORK'S CHOICE-OF- LAW RULES, HELD THAT

  UNDER FLORIDA LAW, WHICH IT HELD GOVERNED, THE DEFENDENTS WERE

  NOT LIABLE AND DISMISSED THE COMPLAINTS.  THE COURT OF APPEALS

REVERSED, FINDING THAT FLORIDA LAW, THOUGH CONTROLLING, WAS NOT

  DECISIVE, AND THAT IN THIS SITUATION, FLORIDA "WOULD PROBABLY"

  APPLY A CERTAIN NEW YORK DECISION TO IMPOSE LIABILITY.  HELD:

  WHILE RESORT TO AN AVAILABLE CERTIFICATION PROCEDURE, SUCH AS IS

  AVAILABLE IN FLORIDA, IS NOT OBLIGATORY WHERE THERE IS DOUBT AS

  TO LOCAL LAW, AND ITS USE IS A GIVEN CASE IS DISCRETIONARY,

  RESORT TO SUCH PROCEDURE SEEMS PARTICULARLY APPROPRIATE HERE IN

  VIEW OF THE NOVELTY OF THE QUESTION, THE UNSETTLED STATE OF

  FLORIDA LAW, AND THE FACT THAT WHEN FEDERAL JUDGES IN NEW YORK

  ATTEMPT TO PREDICT UNCERTAIN FLORIDA LAW, THEY ACT AS "OUTSIDERS"

  NOT EXPOSED TO LOCAL LAW.  HENCE, THE CASE IS REMANDED TO THE

  COURT OF APPEALS TO RECONSIDER WHETHER THE CONTROLLING ISSUE OF

  STATE LAW SHOULD BE CERTIFIED TO THE FLORIDA SUPREME COURT.  PP.

  389 - 392. 

     DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

  REHNQUIST, J., FILED A CONCURRING OPINION, POST, P. 392. 

TOGETHER WITH NO. 73 - 440, SIMON V. SCHEIN ET AL., AND NO. 73 - 495,
INVESTORS DIVERSIFIED SERVICES, INC., ET AL. V. SCHEIN ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARE HERE ON PETITIONS FOR CERTIORARI AND RAISE ONE
IDENTICAL QUESTION. 

THESE ARE SUITS BROUGHT IN THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK.  LUM'S, ONE OF THE RESPONDENTS IN THE LEHMAN
BROTHERS PETITION, IS A FLORIDA CORPORATION WITH HEADQUARTERS IN
MIAMI.  EACH OF THE THREE PETITIONS WHICH WE CONSOLIDATED FOR ORAL
ARGUMENT INVOLVES AS DEFENDNATS' DERIVATIVE SUITS NAMING LUM'S AND
OTHERS AS DEFEDNATNS; AND THE BASIS OF FEDERAL JURISDICTION IS
DIVERSITY OF CITIZENSHIP, 28 U.S.C. 1332(A)(1)8 ABOUT WHICH THERE IS NO
DISPUTE. 

THE COMPLAINTS ALLEGE THAT CHASEN, PRESIDENT OF LUM'S, CALLED SIMON,
A REPRESENTATIVE OF LEHMAN BROS., AND TOLD HIM ABOUT DISAPPOINTING
PROJECTIONS OF LUM'S EARNINGS, ESTIMATES THAT WERE CONFIDENTIAL, NOT
PUBLIC.  SIMON IS SAID TO HAVE TOLD AN EMPLOYEE OF IDS /1/ ABOUT THEM. 
ON THE NEXT DAY, IT IS ALLEGED THAT THE IDS DEFENDANTS SOLD 83,000
SHARES OF LUM'S ON THE NEW YORK STOCK EXCHANGE FOR ABOUT $17.50 PER
SHARE.  LATER THAT DAY THE EXCHANGES HALTED TRADING IN LUM'S STOCK AND
ON THE NEXT TRADING DAY IT OPENED AT $14 PER SHARE, THE PUBLIC BEING
TOLD THAT THE PROJECTED EARNINGS WOULD BE "SUBSTANTIALLY LOWER" THAN
ANTICIPATED.  THE THEORY OF THE COMPLAINTS WAS THAT CHASEN WAS A
FIDUCIARY BUT USED THE INSIDE INFORMATION ALONG WITH OTHERS FOR PROFIT
AND THAT CHASEN AND HIS GROUP ARE LIABLE TO LUM'S FOR THEIR LAWFUL
PROFITS. 

LEHMAN AND SIMON DEFENDED ON THE GROUND THAT THE IDS SALE WAS NOT
MADE THROUGH THEM AND THAT NEITHER ONE BENEFITED FROM THE SALES. 
NONETHELESS PLAINTIFFS CLAIMED THAT CHASEN AND THE OTHER DEFENDANTS
WERE LIABLE UNDER DIAMOND V. OREAMUNO, 24 N.Y. 2D 494, 248 N.E. 2D 910
(1969).  DIAMOND PROCEEDS ON THE THEORY THAT "INSIDE" INFROMATION OF AN
OFFICER OR DIRECTOR OF A CORPORATION IS AN ASSET OF THE CORPROATION
WHICH HAD BEEN ACQUIRED BY THE INSIDERS AS FIDUCIARIES OF THE COMPANY
AND MISAPPROPRIATED IN VIOLATION OF TRUST. 

THE DISTRICT COURT LOOKED TO THE CHOICE-OF-LAW RULES OF THE STATE OF
NEW YORK, KLAXON CO. V. STENTOR ELECTRIC MFG. CO., 313 U.S. 487 (1941),
AND HELD THAT THE LAW OF THE STATE OF INCORPORATION GOVERNS THE
EXISTENCE AND EXTENT OF CORPORATE FIDUCIARY OBLIGATIONS, AS WELL AS THE
LIABILITY FOR VIOALTION OF THEM.  DIAMOND DID, INDEED, SO INDICATE, 24
N.Y. 2D, AT 503 - 504, 248 N.E. 2D, AT 915. 

THE DISTRICT COURT IN EXAMINING FLORIDA LAW CONCLUDED THAT, ALTHOUGH
THE HIGHEST COURT IN FLORIDA HAS NOT CONSIDERED THE QUESTION, SEVERAL
DISTRICT COURTS OF APPEAL INDICATE THAT A COMPLAINT WHICH FAILS TO
ALLEGE BOTH WRONGFUL ACTS AND DAMAGE TO THE CORPORATION MUST BE
DISMISSED.  /2/  THE DISTRICT COURT WENT ON TO CONSIDER WHETHER IF
FLORIDA FOLLOWED THE DIAMOND RATIONALE, DEFENDANTS WOULD BE LIABLE.  IT
CONCLUDED THAT THE PRESENT COMPLAINTS GO BEYOND DIAMOND, AS CHASEN, THE
ONLY FIDUCIARY OF LUM'S INVOLVED IN THE SUITS, NEVER SOLD ANY OF HIS
HOLDINGS ON THE BASIS OF INSIDE INFORMATION.  THE DISTRICT COURT
ACCORDINGLY DISMISSED THE COMPLAINTS, 335 F. SUPP. 329 (SDNY 1971). 

THE COURT OF APPEALS BY A DIVIDED VOTE REVERSED THE DISTIRCT COURT. 
478 F.2D 817 (CA2 1973).  WHILE THE COURT OF APPEALS HELD THAT FLORIDA
LAW WAS CONTROLLING, IT FOUND NONE THAT WAS DECISIVE.  SO IT THEN
TURNED TO THE LAW OF OTHER JURISDICTIONS, PARTICULARLY THAT OF NEW
YORK, TO SEE IF FLORIDA "WOULD PROBABLY" INTERPRET DIAMOND TO MAKE IT
APPLICABLE HERE.  THE COURT OF APPEALS CONCLUDED THAT THE DEFENDANTS
HAD ENGAGED WITH CHASEN "TO MISUSE CORPORATE PROPERTY," ID., AT 822,
AND THAT THE THEORY OF DIAMOND REACHES THAT SITUATION, "VIEWING THE
CASE AS THE FLORIDA COURT WOULD PROBABLY VIEW IT."  IBID.  THERE WERE
EMANATIONS FROM OTHER FLORIDA DECISIONS /4/  THAT MADE THE MAJORITY ON
THE COURT OF APPEALS FEEL THAT FLORIDA WOULD FOLLOW THAT READING OF
DIAMOND.  SUCH A CONSTRUCTION OF DIAMOND, THE COURT OF APPEALS SAID,
WOULD HAVE "THE PROPHYLACTIC EFFECT OF PROVIDING A DISINCENTIVE TO
INSIDER TRADING."  ID., AT 823.  AND SO IT WOULD.  YET UNDER THE REGIME
OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64 (1938), A STATE CAN MAKE JUST
THE OPPOSITE HER LAW, PROVIDING THERE IS NOT OVERRIDING FEDERAL RULE
WHICH PRE-EMPTS STATE LAW BY REASON OF FEDERAL CURBS ON TRADING IN THE
STREAM OF COMMERCE. 

THE DISSENTER ON THE COURT OF APPEALS URGED THAT THAT COURT CERTIFY
THE STATE LAW QUESTION TO THE FLORIDA SUPREME COURT AS IS PROVIDED IN
FLA. STAT. ANN. 25.031 AND ITS APPELLATE RULE 4.61.  THAT PATH IS OPEN
TO THIS COURT AND TO ANY COURT OF APPEALS OF THE UNITED STATES.  478
F.2D, AT 828.  WE HAVE, INDEED, USED IT BEFORE /5/  AS HAVE COURTS OF
APPEALS.  /6/ 

MOREOVER WHEN STATE LAW DOES NOT MAKE THE CERTIFICATION PROCEDURE
AVAILABLE, /7/  A FEDERAL COURT NOT INFREQUENTLY WILL STAY ITS HAND,
REMITTING THE PARTIES TO THE STATE COURT TO RESOLVE THE CONTROLLING
STATE LAW ON WHICH THE FEDERAL RULE MAY TURN.  KAISER STEEL CORP. V.
W.S. RANCH CO., 391 U.S. 593 (1968).  NUMEROUS APPLICATIONS OF THAT
PRACTICE ARE REVIEWED IN MEREDITH V. WINTER HAVEN, 320 U.S. 228 (1943),
WHICH TEACHES THAT THE MERE DIFFICULTY IN ASCERTAINING LOCAL LAW IS NO
EXCUSE FOR REMITTING THE PARTIES TO A STATE TRIBUNAL FOR THE START OF
ANOTHER LAWSUIT.  WE DO NOT SUGGEST THAT WHERE THERE IS DOUBT AS TO
LOCAL LAW AND WHERE THE CERTIFICATION PROCEDURE IS AVAILABLE, RESORT TO
IT IS OBLIGATORY.  IT DOES, OF COURSE, IN THE LONG RUN SAVE TIME,
ENERGY, AND RESOURCES AND HELPS BUILD A COOPERATIVE JUDICIAL
FEDERALISM.  /8/  ITS USE IN A GIVEN CASE RESTS IN THE SOUND DISCRETION
OF THE FEDERAL COURT. 

HERE RESORT TO IT WOULD SEEM PARTICULARLY APPROPRIATE IN VIEW OF THE
NOVELTY OF THE QUESTION AND THE GREAT UNSETTLEMENT OF FLORIDA LAW,
FLORIDA BEING A DISTANT STATE.  WHEN FEDERAL JUDGES IN NEW YORK ATTEMPT
TO PREDICT UNCERTAIN FLORIDA LAW, THEY ACT, AS WE HAVE REFERRED TO
OURSELVES ON THIS COURT IN MATTERS OF STATE LAW, AS "OUTSIDERS"
LACKING THE COMMON EXPOSURE TO LOCAL LAW WHIH COMES FROM SITTING IN THE
JURISDICTION. 

"READING THE TEXAS STATUTES AND THE TEXAS DECISIONS AS OUTSIDERS
WITHOUT SPECIAL COMPETENCE IN TEXAS LAW, WE WOULD HAVE LITTLE
CONFIDENCE IN OUR INDEPENDENT JUDGMENT REGARDING THE APPLICATION OF
THAT LAW TO THE PRESENT SITUATION.  THE LOWER COURT DID DENY THAT THE
TEXAS STATUTES SUSTAINED THE COMMISSION'S ASSERTION OF POWER.  AND THIS
REPRESENTS THE VIEW OF AN ABLE AND EXPERIENCED CIRCUIT JUDGE OF THE
CIRCUIT WHICH INCLUDES TEXAS AND OF TWO CAPABLE DISTRICT JUDGES TRAINED
IN TEXAS LAW."  RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496, 499
(1941).  SEE ALSO MACGREGOR V. STATE MUTUAL LIFE ASSUR.  CO., 315 U.S.
280, 281 (1942); REITZ V. MEALEY, 314 U.S. 33, 39 (1941). 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASES ARE
REMANDED SO THAT THAT COURT MAY RECONSIDER WHETHER THE CONTROLLING
ISSUE OF FLORIDA LAW SHOULD BE CERTIFIED TO THE FLORIDA SUPREME COURT
PURSUANT TO RULE 4.61 OF THE FLORIDA APPELLATE RULES. 

         SO ORDERED. 

/1/  INVESTORS DIVERSIFIED SERVICES, INC., INVESTORS VARIABLE
PAYMENT FUND, INC., AND IDS NEW DIMENSIONS FUND, INC., WERE DEFENDANTS
IN THE SCHEIN CASE.  OF THOSE, ONLY INVESTORS DIVERSIFIED SERVICES,
INC., IS A DEFENDANT IN THE OTHER DERIVATIVE ACTION BROUGHT BY
GREGORIO.  THE DISMISSAL OF THE THIRD DERIVATIVE ACTION (GILDENHORN)
WAS NOT PURSUED ON APPEAL. 

ONE SIT AND ONE JUNDT, DEFENDANTS ALLEGED TO BE EMPLOYEES OF IDS,
INC., WERE DISMISSED FROM THE CASE BY THE DISTRICT COURT FOR LACK OF
PERSONAL JURISDICTION.  THERE WAS NO APPEAL FROM THAT DISMISSAL. 

/2/  E.G., PALMA V. ZERBEY, 189 SO. 2D 510, 511 (FLA. APP. 1966). 

/3/  THE DISTRICT COURT ALSO HELD THAT WHETHER CHASEN WOULD BE
LIABLE NOT FOR PROFITING HIMSELF FROM THE INSIDE INFORMATION BUT FOR
REVEALING IT TO OTHERS COULD NOT BE REACHED AS CHESEN, NONRESIDENT OF
NEW YORK, HAD NOT BEEN PROPERLY SERVED. 

/4/  SEE, E.G., QUINN V. PHIPPS, 93 FLA. 805, 113 SO. 419 (1927). 

/5/  ALDRICH V. ALDRICH, 375 U.S. 249 (1963); DRESNER V. CITY OF
TALLAHASSEE, 375 U.S. 136 (1963). 

/6/  TRIAL BUILDERS SUPPLY CO. V. REAGAN, 430 F.2D 828 (CA5 1970);
GASTON V. PITTMAN, 413 F.2D 1031 (CA5 1969); MARTINEZ V. RODRIQUEZ, 410
F.ID 729 (CA5 1969); MORAGNE V. STATES MARINE LINES, INC., 409 F.ID 32
(CA5 1969), REV'D ON OTHER GROUNDS, 389 U.S. 375 (1970); HOPKINS V.
LOCKHEED AIRCRAFT CORP., 394 F.2D 656 (CA5 1968); LIFE INS. CO. OF
VIRGINIA V. SHIFFLET, 380 F.2D 375 (CA5 1967); GREEN V. AMERICAN
TOBACCO CO., 325 F.2D 673 (CA5 1963); SUN INSURANCE OFFICE V. CLAY, 319
F.2D 505 (CA5 1963).  THE FIFTH CIRCUIT'S WILLINGNESS TO CERTIFY IS IN
PART A PRODUCT OF FREQUENT STATE COURT REPUDIATION OF ITS
INTERPRETATIONS OF STATE LAW.  SEE THE CASES SUMMARIZED IN UNITED
SERVICES LIFE INS. CO. V. DELANEY, 328 F.2D 483, 486 - 487 (CA5 1964)
(BROWN, C.J., CONCURRING). 

/7/  CERTIFICATION PROCEDURES ARE AVAIALBLE IN SEVERAL STATES,
INCLUDING COLORADO, COLO. APPELLATE RULE 21.1 (1970); HAWAII, HAW. 
REV.  STAT. 602 - 36 (1969); LOUISIANA, LA. REV. STAT. ANN. 13:72.1
(SUPP. 1973); MAINE, ME. REV. STAT. ANN., TIT. 4, 57 (1964); MARYLAND,
MD. ANN. CODE, ART. 26, 161 (SUPP. 1973); MASSACHUSETTS, MASS. SUP.
JUD.  CT. RULE 321 (1973); MONTANA, MONT. SUP. CT. RULE 1 (1973); NEW
HAMPSHIRE, N.H. REV. STAT. ANN. 490 APP. R. 20 (SUPP. 1973); AND
WASHINGTON, WASH. REV. CODE ANN. 2.60.010 - 2.60.030 (SUPP. 1972). 

/8/  SEE WRIGHT, THE FEDERAL COURTS AND THE NATURE AND QUALITY OF
STATE LAW, 13 WAYNE L. REV. 317 (1967); KURLAND, TOWARD A CO-OPERATIVE
JUDICIAL FEDERALISM: THE FEDERAL COURT ABSTENTION DOCTRINE, 24 F.R.D.
481 (1960); NOTE, INTER-JURISDICTIONOAL CERTIFICATION:  BEYOND
ABSTENTION TOWARD COOPERATIVE JUDICIAL FEDERALISM, 111 U. PA. L. REV.
344 (1963); NOTE, FLORIDA'S INTERJURISDICTIONAL CERTIFICATION: A
REEXAMINATION TO PROMOTE EXPANDED NATIONAL USE, 22 U. FLA. REV. 21
(1969). 

MR. JUSTICE REHNQUIST, CONCURRING. 

THE COURT SAYS THAT USE OF STATE COURT CERTIFICATION PROCEDURES BY
FEDERAL COURTS "DOES, OF COURSE, IN THE LONG RUN SAVE TIME, ENERGY, AND
RESOURCES AND HELPS BUILD A COOPERATIVE JUDICIAL FEDERALISM."  ANTE, AT
391.  IT ALSO OBSERVES THAT "(WE DO NOT SUGGEST THAT WHERE THERE IS
DOUBT AS TO LOCAL LAW AND WHERE THE CERTIFICATION PROCEDURE IS
AVAILABLE, RESORT TO IT IS OBLIGATORY," ANTE, AT 390 - 391, AND FURTHER
STATES THAT "(ITS USE IN A GIVEN CASE RESTS IN THE SOUND DISCRETION OF
THE FEDERAL COURT."  ANTE, AT 391.  I AGREE WITH EACH OF THESE
PROPOSITIONS, BUT I THINK IT APPROPRIATE TO EMPHASIZE THE SCOPE OF THE
DISCRETION OF FEDERAL JUDGES IN DECIDING WHETHER TO USE SUCH
CERTIFICATION PROCEDURES. 

PETITIONERS HERE WERE DEFENDANTS IN THE DISTRICT COURT.  THAT COURT,
APPLYING APPLICABLE NEW YORK CHOICE-OF-LAW RULES, DECIDED THAT FLORIDA
LAW GOVERNS THE CASE AND, FINDING THAT THE RESPONDENTS' COMPLAINT
REQUESTED RELIEF WHICH WOULD EXTEND THE SUBSTANTIVE LAW EVEN BEYOND NEW
YORK'S APPARENTLY NOVEL DECISION IN DIAMOND V. OREAMUNO, 24 N.Y. 2D
494, 248 N.E. 2D 910 (1969), DISMISSED THE COMPLAINT ON THE MERITS. 
THE COURT OF APPEALS AGREED THAT FLORIDA LAW APPLIED, BUT HELD THAT
FLORIDA LAW WOULD PERMIT RECOVERY ON THE CLAIM STATED BY RESPONDENTS. 
THE OPINION OF THE DISSENTING JUDGE OF THE COURT OF APPEALS,
DISAGREEING WITH THE MAJORITY'S ANALYSIS OF FLORIDA LAW, ADDED IN A
CONCLUDING PARAGRAPH THAT IN LIGHT OF THE UNCERTAINTY OF FLORIDA LAW,
THE FLORIDA CERTIFICATION PROCEDURE SHOULD HAVE BEEN UTILIZED BY THE
COURT OF APPEALS.  ON REHEARING, PETITIONERS REQUESTED THE COURT OF
APPEALS TO UTILIZE THIS PROCEDURE, BUT THEY CONCEDE THAT THIS IS THE
FIRST SUCH REQUEST THAT THEY MADE.  THUS PETITIONERS SEEK TO UPSET THE
RESULT OF MORE THAN TWO YEARS OF TRIAL AND APPELLATE LITIGATION ON THE
BASIS OF A POINT WHICH THEY FIRST PRESENTED TO THE COURT OF APPEALS
UPON PETITION FOR REHEARING.  CF. HOSTETTER V. IDLEWILD LIQUOR CORP.,
377 U.S. 324, 329 (1964). 

THE AUTHORITY WHICH CONGRESS HAS GRANTED THIS COURT TO REVIEW
JUDGMENTS OF THE COURTS OF APPEALS UNDOUBTEDLY VESTS US NOT ONLY WITH
THE AUTHORITY TO CORRECT ERRORS OF SUBSTANTIVE LAW, BUT TO PRESCRIBE
THE METHOD BY WHICH THOSE COURTS GO ABOUT DECIDING THE CASES BEFORE
THEM.  WESTERN PACIFIC RAILROAD CASE, 345 U.S. 247 (1953).  BUT A
SENSIBLE RESPECT FOR THE EXPERIENCE AND COMPETENCE OF THE VARIOUS
INTEGRAL PARTS OF THE FEDERAL JUDICIAL SYSTEM SUGGESTS THAT WE GO
SLOWLY IN TELLING THE COURTS OF APPEALS OR THE DISTRICT COURT HOW TO GO
ABOUT DECIDING CASES WHERE FEDERAL JURISDICTION IS BASED ON DIVERSITY
OF CITIZENSHIP, CASES WHICH THEY SEE AND DECIDE FAR MORE OFTEN THAN WE
DO. 

THIS COURT HAS HELD THAT A FEDERAL COURT MAY NOT PERMIT A DIVERSITY
PLAINTIFF TO STATE COURTS MERELY BECAUSE OF THE DIFFICULTY IN
ASCERTAINING LOCAL LAW, MEREDITY V. WINTER HAVEN, 320 U.S. 228 (1943);
IT HAS ALSO HELD THAT UNUSUAL CIRCUMSTANCES MAY REQUIRE A FEDERAL COURT
HAVING JURISDICTION OF AN ACTION TO NONETHELESS ABSTAIN FROM DECIDING
DOUBTFUL QUESTIONS OF STATE LAW, E.G., LOUISIANA POWER & LIGHT CO. V.
CITY OF THIBODAUX, 360 U.S. 25 (1959); KAISER STEEL CORP. V. W.S. RANCH
CO., 391 U.S. 593 (1968) (&ER CURIAM).  IN EACH OF THESE SITUATIONS,
OUR DECISIONS HAVE DEALT WITH THE ISSUE OF HOW TO RECONCILE THE
EXERCISE OF THE JURISDICTION WHICH CONGRESS HAS CONFERRED UPON THE
FEDERAL COURTS WITH THE IMPORTANT CONSIDERATIONS OF COMITY AND
COOPERATIVE FEDERALISM WHICH ARE INHERENT IN A FEDERAL SYSTEM, BOTH OF
WHICH MUST BE SUBJECT TO A SINGLE NATIONAL POLICY WITHIN THE FEDERAL
JUDICIARY.     AT THE OTHER END OF THE SPECTRUM, HOWEVER, I ASSUME IT
WOULD BE UNTHINKABLE TO ANY OF THE MEMBERS OF THIS COURT TO PRESCRIBE
THE PROCESS BY WHICH A DISTRICT COURT OR A COURT OF APPEALS SHOULD GO
ABOUT RESEARCHING A POINT OF STATE LAW WHICH ARISES IN A DIVERSITY
CASE.  PRESUMABLY THE JUDGES OF THE DISTRICT COURTS AND OF THE COURTS
OF APPEALS ARE AT LEAST AS CAPABLE AS WE ARE IN DETERMINING WHAT THE
FLORIDA COURTS HAVE SAID ABOUT A PARTICULAR QUESTION OF FLORIDA LAW. 

STATE CERTIFICATION PROCEDURES ARE A VERY DESIRABLE MEANS BY WHICH A
FEDERAL COURT MAY ASCERTAIN AN UNDECIDED POINT OF STATE LAW, ESPECIALLY
WHERE, AS IS THE CASE IN FLORIDA, THE QUESTION CAN BE CERTIFIED
DIRECTLY TO THE COURT OF LAST RESORT WITHIN THE STATE.  BUT IN A PURELY
DIVERSITY CASE SUCH AS THIS ONE, THE USE OF SUCH A PROCEDURE IS MORE A
QUESTION OF THE CONSIDERABLE DISCRETION OF THE FEDERAL COURT IN GOING
ABOUT THE DECISIONMAKING PROCESS THAN IT IS A QUESTION OF A CHOICE
TRENCHING UPON THE FUNDAMENTALS OF OUR FEDERAL-STATE JURISPRUDENCE. 

WHILE CERTIFICATION MAY ENGENDER LESS DELAY AND CREATE FEWER
ADDITIONAL EXPENSES FOR LITIGANTS THAN WOUDL ABSTENTION, IT ENTAILS
MORE DELAY AND EXPENSE THAN WOULD AN ORDINARY DECISION OF THE STATE
QUESTION ON THE MERITS BY THE FEDERAL COURT.  SEE CLAY V. SUN INSURANCE
OFFICE, 363 U.S. 207, 226 - 227 (1960) (DISSENTING OPINION).  THE
SUPREME COURT OF FLORIDA HAS PROMULGATED AN APPELLATE RULE, FAL. 
APPELLATE RULE 4.61 (1967), WHICH PROVIDES THAT UPON CERTIFICATION BY A
FEDERAL COURT TO THAT COURT, THE PARTIES SHALL FILE BRIEFS THERE
ACCORDING TO A SPECIFIED BRIEFING SCHEDULE, THAT ORAL ARGUMENT MAY BE
GRANTED UPON APPLICATION, AND THAT THE PARTIES SHALL PAY THE COSTS OF
THE CERTIFICATION.  /1/  THUS WHILE THE CERTIFICATION PROCEDURE IS MORE
LIKELY TO PRODUCE THE CORRECT DETERMINATION OF STATE LAW, ADDITIONAL
TIME AND MONEY ARE REQUIRED TO ACHIEVE SUCH A DETERMINATION. 

IF A DISTRICT COURT OR COURT OF APPEALS BELIEVES THAT IT CAN RESOLVE
AN ISSUE OF STATE LAW WITH AVAILABLE RESEARCH MATERIALS ALREADY AT
HAND, AND MAKES THE EFFORT TO DO SO, ITS DETERMIANTION SHOULD NOT BE
DISTURBED SIMPLY BECAUSE THE CERTIFICATION PROCEDURE EXISTED BUT WAS
NOT USED.  THE QUESTION OF WHETHER CERTIFICATION ON THE FACTS OF THIS
CASE, PARTICULARLY IN VIEW OF THE LATENESS OF ITS SUGGESTION BY
PETITIONERS, WOULD HAVE ADVANCED THE GOAL OF CORRECTLY DISPOSING OF
THIS LITIGATION ON THE STATE LAW ISSUE IS ONE WHICH I WOULD LEAVE, AND
I UNDERSTAND THAT THE COURT WOULD LEAVE, TO THE SOUND JUDGMENT OF THE
COURT MAKING THE INITIAL CHOICE.  BUT SINCE THE COURT HAS TODAY FOR THE
FIRST TIME EXPRESSED ITS VIEW AS TO THE USE OF CERTIFICATION PROCEDURES
BY THE FEDERLA COURTS, I AGREE THAT IT IS APPRORPAITE TO VACATE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASES IN ORDER THAT THE
COURT OF APPEALS MAY CONSIDER CERTIFICATION IN LIGHT OF THE COURT'S
OPINION. 

/1/  FLA. APPELLATE RULE 4.61 (1967) PROVIDES IN PART: 

"F. COSTS OF CERTIFICATE.  THE COSTS OF THE CERTIFICATE AND FILING
FEE SHALL BE EQUALLY DIVIDED BETWEEN THE PARTIES UNLESS OTHERWISE
ORDERED BY THIS COURT. 

"G. BRIEFS AND ARGUMENT.  THE APELLANT OR MOVING PARTY IN THE
FEDERAL COURT SHALL FILE AND SERVE UPON ITS ADVERSARY ITS BRIEF ON THE
QUESTION CERTIFIED WITHIN 30 DAYS AFTER THE FILING OF SAID CERTIFICATE
IN THE APPELLATE COURT OF THIS STATE HAVING JURISDICTION.  THE APPELLEE
OR RESPONDING PARTY IN THE FEDERAL COURT SHALL FILE AND SERVE UPON ITS
ADVERSARY ITS BRIEF WITHIN 20 DAYS AFTER THE RECEIPT OF APPELLANT'S OR
MOVING PARTY'S BRIEF AND A REPLY BRIEF SHALL BE FILED WITHIN 10 DAYS
THEREAFTER. 

"H. ORAL ARUGMENT.  ORAL ARGUMENT MAY BE GRANTED UPON APPLICATION
AND, UNLESS FOR GOOD CAUSE SHOWN THE TIME BE ENLARGED BY SPECIAL ORDER
OF THE COURT PRIRO TO THE HEARING THEREON, THE PARTIES SHALL BE ALOWED
THE SAME TIME AS IN OTHER CAUSES ON THE MERITS." 

JAMES J. HAGAN ARGUED THE CAUSE FOR ALL PETITIONERS.  WITH HIM ON
THE BRIEFS FOR PETITIONER IN NO. 73 - 439 WAS STEPHEN P. DOUGGAN. 
DAVID HARTFIELD, JR., AND LAURA BANFIELD WERE ON THE BRIEF FOR
PETITIONER IN NO. 73 - 440.  JAMES V. HAYES, JOHN E. TOBIN, RICHARD Y.
HOLCOMB, AND ALLAN R. FREEDMAN WERE ON THE BRIES FOR PETITIONERS IN NO.
73 - 495. 

DONALD N. RUBY ARGUED THE CAUSE FOR ALL RESPONDENTS.  WITH HIM ON
THE BRIEF WERE BENEFICT WOLF, EDWARD A. BERMAN, AND VICTOR P. MUSKIN. 
..END :
























PROCUNIER V. MARTINEZ, 416 U.S. 396 


       PROCUNIER, CORRECTIONS DIRECTOR, ET AL. V. MARTINEZ ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

      NO. 72 - 1465.  ARGUED DECEMBER 3, 1973--DECIDED APRIL 29,

           1974; (354 F. SUPP. 1092, AFFIRMED.) 


    APPELLEES, PRISON INMATES, BROUGHT THIS CLASS ACTION

  CHALLENGING PRISONER MAIL CENSORSHIP REGULATIONS ISSUED BY THE

  DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND THE BAN

  AGAINST THE USE OF LAW STUDENTS AND LEGAL PARAPROFESSIONALS TO

  CONDUCT ATTORNEY-CLIENT INTERVIEWS WITH INMATES.  THE MAIL

  CENSORSHIP REGULATIONS, INTER ALIA, PROSCRIBED INMATE

  CORRESPONDENCE THAT "UNDULY COMPLAINED)," "MAGNIFIED)

  GRIEVANCES," "EXPRESSED) INFLAMMATORY POLITICAL, RACIAL,

  RELIGIOUS OR OTHER VIEWS OF BELIEFS," OR CONTAINED MATTER DEEMED

  "DEFAMATORY" OR "OTHERWISE INAPPROPRIATE."  THE DISTRICT COURT

  HELD THESE REGULATIONS UNCONSTITUTIONAL UNDER THE FIRST

  AMENDMENT, VOID FOR VAGUENESS, AND VIOLATIVE OF THE FOURTEENTH

  AMENDMENT'S GUARANTEE OF PROCEDURAL DUE PROCESS, AND IT ENJOINED

  THEIR CONTINUED ENFORCEMENT.  THE COURT REQUIRED THAT AN INMATE

  BE NOTIFIED OF THE REJECTION OF CORRESPONDENCE AND THAT THE

  AUTHOR OF THE CORRESPONDENCE BE ALLOWED TO PROTEST THE DECISION

  AND SECURE REVIEW BY A PRISON OFFICIAL OTHER THAN THE ORIGINAL

  CENSOR.  THE DISTRICT COURT ALSO HELD THAT THE BAN AGAINST THE

  USE OF LAW STUDENTS AND LEGAL PARAPROFESSIONALS TO CONDUCT

  ATTORNEY-CLIENT INTERVIEWS WITH INMATES ABRIDGED THE RIGHT OF

  ACCESS TO THE COURTS AND ENJOINED ITS CONTINUED ENFORCEMENT. 

  APPELLANTS CONTEND THAT THE DISTRICT COURT SHOULD HAVE ABSTAINED

  FROM DECIDING THE CONSTITUTIONALITY OF THE MAIL CENSORSHIP

  REGULATIONS.  HELD: 

     1.  THE DISTRICT COURT DID NOT ERR IN REFUSING TO ABSTAIN FROM

  DECIDING THE CONSTITUTIONALITY OF THE MAIL CENSORSHIP

  REGULATIONS.  PP. 400 - 404. 

     2.  THE CENSORSHIP OF DIRECT PERSONAL CORRESPONDENCE INVOLVES

  INCIDENTAL RESTRICTIONS ON THE RIGHT TO FREE SPEECH OF BOTH

  PRISONERS AND THEIR CORRESPONDENTS AND IS JUSTIFIED IF THE

  FOLLOWING CRITERIA ARE MET:  (1) IT MUST FURTHER ONE OR MORE OF

  THE IMPORTANT AND SUBSTANTIAL GOVERNMENTAL INTERESTS OF SECURITY,

  ORDER, AND THE REHABILITATION OF INMATES, AND (2) IT MUST BE NO

  GREATER THAN IS NECESSARY TO FURTHER THE LEGITIMATE GOVERNMENTAL

  INTEREST INVOLVED.  PP. 404 - 414. 

     3.  UNDER THIS STANDARD THE INVALIDATION OF THE MAIL
CENSORSHIP

  REGUALTIONS BY THE DISTRICT COURT WAS CORRECT.  PP. 415 - 416. 

    4.  THE DECISION TO CONSOR OR WITHHOLD DELIVERY OF A

  PARTICULAUR LETTER MUST BE ACCOMPANIED BY MINMUM PROCEDURAL

  SAFEGUARDS AGAINST ARBITRARINESS OR ERROR, AND THE REQUIREMENTS

  SPECIFIED BY THE DISTRICT COURT WERE NOT UNDULY BURDENSOME.  PP.

  417 - 419. 

     5.  THE BAN AGAINST ATTORNEY-CLIENT INTERVIEWS CONDUCTED BY
LAW

  STUDENTS OF LEGAL PARAPROFESSIONALS, WHICH WAS NOT LIMITED TO

PROSPECTIVE INTERVIEWERS WHO POSED SOME COLORABLE THREAT TO

 SECURITY OR TO THOSE INMATES THOUGHT TO BE ESPECIALLY DANGEROUS

  AND WHICH CREATED AN ARBITRARY DISTINCTION BETWEEN LAW STUDENTS

  EMPLOYED BY ATTORNEYS AND THOSE ASSOCIATED WITH LAW SCHOOL

  PROGRAMS (AGAINST WHOM THE BAN DID NOT OPERATE), CONSTITUTED AN

  UNJUSTIFIABLE RESTRICTION ON THE INMATES' RIGHT OF ACCESS TO THE

  COURTS.  JOHNSON V. AVERY, 393 U.S. 483.  PP. 419 - 422. 

     POWELL, J., DELIVERED THE OPINION OF THE OCURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN,

  AND REHNQUIST, JJ., JOINED.  MARSHALL, J., FILED A CONCURRING

  OPINION, IN WHICH BRENNAN, J., JOINED AND IN PART II OF WHICH

DOUGLAS, J., JOINED, POST, P. 422.  DOUGLAS, J., FILED AN OPINION

  CONCURRING IN THE JUDGMENT, IN WHICH BRENNAN AND MARSHALL, JJ.,

  JOINED, POST, P. 428. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE CONSTITUTIONALITY OF CONTAIN REGULATIONS
PROMULGATED BY APPELLANT PROCUNIER IN HIS CAPACITY AS DIRECTOR OF THE
CALIFORNIA DEPARTMENT OF CORRECTIONS.  APPELLEES BROUGHT A CLASS ACTION
ON BEHALF OF THEMSELVES AND ALL OTHER INMATES OF PENAL INSTITUTIONS
UNDER THE DEPARTMENT'S JURISDICTION TO CHALLENGE THE RULES RELATING TO
CENSORSHIP OF PRISONER MAIL AND THE BAN AGAINST THE USE OF LAW STUDENTS
AND LEGAL PARAPROFESSIONALS TO CONDUCT ATTORNEY-CLIENT INTERVIEWS WITH
INMATES.  PURSUANT TO 28 U.S.C. 2281 A THREE-JUDGE UNITED STATES
DISTRICT COURT WAS CONVENED TO HEAR APPELLEES' REQUEST FOR DECLARATORY
AND INJUNCITVE RELIEF.  THAT COURT ENTERED SUMMARY JUDGMENT ENJOINING
CONTINUED ENFORCEMENT OF THE RULES IN QUESTION AND ORDERING APPELLANTS
TO SUBMIT NEW REGULATIONS FOR THE COURT'S APPROVAL.  354 F. SUPP. 1092
(ND CAL. 1973).  APPELLANTS' FIRST REVISIONS RESULTED IN
COUNTERPROPOSALS BY APPELLEES AND A COURT ORDER ISSUED MAY 30, 1973,
REQUIRING FURTHER MODIFICATION OF THE PROPOSED RULES.  THE SECOND SET
OF REVISED REGULATIONS WAS APPROVED BY THE DISTRICT COURT ON JULY 20,
1973, OVER APPELLEES' OBJECTIONS.  WHILE THE FIRST PROPOSED REVISIONS
OF THE DEPARTMENT'S REGULATIONS WERE PENDING BEFORE THE DISTRICT COURT,
APPELLANTS BROUGHT THIS APPEAL TO CONTEST THAT COURT'S DECISION HOLDING
THE ORIGINAL REGULATIONS UNCONSTITUTIONAL. 

WE NOTED PROBABLE JURISDICTION.  412 U.S. 948 (1973).  WE AFFIRM. 

        I 

FIRST WE CONSIDER THE CONSTITUTIONALITY OF THE DIRECTOR'S RULES
RESTRICITING THE PERSONAL CORRESPONDENCE OF PRISON INMATES.  UNDER
THESE REGULATIONS, CORRESPONDENCE BETWEEN INMATES OF CALIFORNIA PENAL
INSTITUTIONS AND PERSONS OTHER THAN LICENSED ATTORNEYS AND HOLDERS OF
PUBLIC OFFICER WAS CENSORED FOR NONCONFORMITY TO CERTAIN STANDARDS. 
RULE 2401 STATED THE DEPARTMENT'S GENERAL PREMISE THAT PERSONAL
CORRESPONDENCE BY PRISONERS IS "A PRIVILEGE, NOT A RIGHT.  . . ."  /1/
MORE DETAILED REGULATIONS IMPLEMENTED THE DEPARTMENT'S POLICY.  RULE
1201 DIECTED INMATES NOT TO WRITE LETTERS IN WHICH THYEY "UNDULY
COMPLAINED"  OR "MAGNIFY GRIEVANCES."  /2/  RULE 1205(D) DEFINED AS
CONTRABAND WRITINGS "EXPRESSING INFLAMMATORY POLITICAL, RACIAL,
RELIGIOUS OR TOERH VIEWS OR BELIEFS.  . . ."  /3/  FINALLY, RULE 2402
(8) PROVIDED THAT INMATES "MAY NOT SEND OR RECEIVE LETTERS THAT PERTAIN
TO CRIMINAL ACTIVITY; ARE LEWD, ABSCENE, OR DEFAMATORY; CONTAIN FOREIGN
MATTER, OR ARE OTHERWISE INAPPROPRIATE."  /4/ 

PRISON EMPLOYEES SCREENED BOTH INCOMING AND OUTGOING PERSONAL MAIL
FOR VIOALTIONS OF THESE REGUALTIONS.  NO FURTHER CRITERIA WERE PROVIDED
TO HELP MEMBERS OF THE MAILROOM STAFF DECIDE WHETHER A PARTICULAR
LETTER CONTRAVENED ANY PRISON RULE OR POLICY.  WHEN A PRISON EMPLOYEE
FOUND A LETTER OBJECTIONABLE, HE COULD TAKE ONE OR MORE OF THE
FOLLOWING ACTIONS: (1) REFUSE TO MAIL OR DELIVER THE LETTER AND RETURN
TO THE AUTHOR; (2) SUBMIT A DISCIPLINARY REPORT, WHICH COULD LEAD TO
SUSPENSION OF MAIL PRIVILEGES OR OTERH SANCTIONS; OR (3) PLACE A COPY
OF THE LETTER OR A SUMMARY OF ITS CONTENTS IN THE PRISONER'S FILE,
WHERE IT MIGHT BE A FACTOR IN DETERMINING THE INMATE'S WORK AND HOUSING
ASSIGNMENTS AND IN SETTING A DATE FOR PAROLE ELIGIBILITY. 

THE DISTRICT COURT HELD THAT THE REGULATIONS RELATING TO PRISONER
MAIL AUTHORIZED CENSORSHIP OR PROTECTED EXPRESSION WITHOUT ADEQUATE
JUSTIFICATION IN VIOLATION OF THE FIRST AMENDMENT AND THAT THEY WERE
VOID FOR VAGUENESS.  THE COURT ALSO NOTED THAT THE REGULATIONS FAILED
TO PROVIDE MINIMUM PROCEDRUAL SAFEGUARDS AGAINST ERROR AND
ABRITRARINESS IN THE CENSORSHIP OF INMATE CORRESPONDENCE. 
CONSEQUENTLY, IT ENJOINED THEIR CONTINUED ENFORCEMENT. 

APPELLANTS CONTENDED THAT THE DISTRICT COURT SHOULD HAVE ABSTAINED
FROM DECIDING THESE QUESTIONS.  IN THAT COURT APPELLANTS ADVANCED NO
REASON FOR ABSTENTION OTHER THAN THE ASSERTION THAT THE FEDERAL COURT
SHOULD DEFER TO THE CALIFORNIA COURTS ON THE BASIS OF COMITY.  THE
DISTRICT COURT PROPERLY REJECTED THIS SUGGESTION, NOTING THAT THE MERE
POSSIBLITY THAT A STATE COURT MIGHT DECLARE THE PRISON REGULATIONS
UNCONSTITUTIONAL IS NO GROUND FOR ABSTENTION.  WISCONSIN V.
CONSTANTINEAU, 400 U.S. 433, 439 (1971). 

APPELLANTS NOW CONTEND THAT WE SHOULD VACATE THE JUDGMENT AND REMAND
THE CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO ABDTAIN ON THE
BASIS OF TWO ARGUMENTS NOT PRESENTED TO IT.  FIRST, THEY CONTEND THAT
ANY VAGUENESS CHALLENGE TO AN UNINTERPRETED STATE STATUTE OR REGULATION
IS A PROPER CASE FOR ABSTENTION.  ACCORDING TO APPELLANTS, "(THE VERY
STATEMENT BY THE DISTRICT COURT THAT THE REGULATIONS ARE VAGUE
CONSTITUTES A COMPELLING REASON FOR ABSTENTION."  BRIEF FOR APPELLANTS
8 - 9.  AS THIS COURT MADE PLAIN IN BAGGETT V. BULLITT, 377 U.S. 360
(1964), HOWEVER, NOT EVERY VAGUENESS CHALLENGE TO AN UNINTERPRETED
STATE STATUTE OR REGULATION CONSTITUTES A PROPER CASE FOR ABSTENTION. 
/5/ BUT WE NEED NOT DECIDE WHETHER APPELLANTS' CONTENTION IS CONTROLLED
BY THE ANALYSIS IN BAGGETT, FOR THE SHORT ANSWER TO THEIR ARGUMENT IS
THAT THESE REGULATIONS WERE NEITHER CHALLENGED NOR INVALIDATED SOLELY
ON THE GROUND OF VAGUENESS.  APPELLEES ALSO ASSERTED, AND THE DISTRICT
COURT FOUND, THAT THE RULES RELATING TO PRISONER MAIL PERMITTED
CENSORSHIP OF CONSTITUTIONALLY PROTECTED EXPRESSION WITHOUT ADEQUATE
JUSTIICATION.  IN LIGHT OF THE SUCCESSFUL FIRST AMENDMENT ATTACK ON
THESE REGULATIONS, THE DISTRICT COURT'S CONCLUSION THAT THEY WERE ALSO
UNCONSTITUTIONALLY VAGUE HARDLY "CONSTITUTES A COMPELLING REASON FOR
ABSTENTION." 

AS A SECOND GROUND FOR ABSTENTION APPELLANTS RELY ON CAL. PENAL CODE
2600 (4), WHICH ASSURES PRISONERS THE RIGHT TO RECEIVE BOOKS,
MAGAZINES, AND PERIODICALS.  /6/  ALTHOUGH THEY DID NOT ADVANCE THIS
ARGUMENT TO THE DISTRICT COURT, APPELLANTS NOW CONTEND THAT THE
INTERPRETATION OF THE STATUTE BY THE STATE COURTS AND ITS APPLICATION
TO THE REGUALTIONS GOVERNING PRISONER MAIL MIGHT AVOID OR MODIFY THE
CONSTITUTIONAL QUESTIONS DECIDED BELOW.  THUS APPELLANTS SEEK TO
ESTABLISH THE ESSENTIAL PREREQUISITE FOR ABSTENTION--"AN UNCERTAIN
ISSUE OF STATE LAW," THE RESOLUTION OF WHICH MAY ELIMINATE OR
MATERIALLY ALTER THE FEDERAL CONSTITUTIONAL QUESTION.  /7/  HARMAN V.
FORESSENIUS, 380 U.S. 528, 534 (1965).  WE ARE NOT PERSUADED. 

A STATE COURT INTERPRETATION OF 2600 (4) WOULD NOT AVOID OR
SUBSTANTIALLY MODIFY THE CONSTITUTIONAL QUESTION PRSENTED HERE.  THAT
STATUTE DOES NOT CONTAIN ANY PROVISION PURPORTING TO REGULATE
CENSORSHIP OF PERSONAL CORRESPONDENCE.  IT ONLY PRESERVES THE RIGHT OF
INMATES TO RECEIVE "NEWSPAPERS, PERIODICALS, AND BOOKS" AND AUTHORIZES
PRISON OFFICIALS TO EXCLUDE "OBSCENE PUBLICATIONS OR WRITINGS, AND MAIL
CONTAINING INFORMATION CONCERNING WHERE, HOW, OR FROM WHOM SUCH MATTER
MAY BE OBTAINED.  . ."  (EMPHASIS ADDED).  AND THE PLAIN MEANING OF THE
LANGUAGE IS REINFORCED BY RECENT LEGISLATIVE HISTORY.  IN 1972, A BILL
WAS INTRODUCED IN THE CALIFORNIA LEGISLATURE TO RESTRICT CENSORSHIP OF
PERSONAL CORRESPONDENCE BY ADDING AN ENTIRELY NEW SUBSECTION TO 2600. 
THE LEGISLATURE PASSED THE BILL, BUT IT WAS VETOED BY GOVERNOR REAGAN. 
IN LIGHT OF THIS HISTORY, WE THINK IT PLAIN THAT NO REASONABLE
INTERPRETATION OF 2600 (4) WOULD AVOID OR MODIFY THE FEDERAL
CONSTITUTIONAL QUESTION DECIDED BELOW.  MOREOVER, WE ARE MINDFUL OF THE
HIGH COST OF ABSTENTION WHEN THE FEDERAL CONSTITUTIONAL CHALLENGE
CONCERNS FACILA REPUGNANCE TO THE FIRST AMENDMENT.  ZWICKLER V. KOOTA,
389 U.S. 241, 252 (1967; BAGGETT V. BULLITT, 377 U.S., AT 379.  WE
THEREFORE PROCEED TO THE MERITS. 

    A 

TRADITIONALLY, FEDERAL COURTS HAVE ADOPTED A BROAD HANDS-OFF
ATTITUDE TOWARD PROBLEMS OF PRISON ADMINISTRATION.  IN PART THIS POLICY
IS THE PRODUCT OF VARIOUS LIMITATIONS ON THE SCOPE OF FEDERAL REVIEW OF
CONDITIONS IN STATE PENAL INSTITUTIONS.  /8/  MORE FUNDAMENTALLY, THIS
ATTITUDE SPRINGS FROM COMPLEMENTARY PRECEPTIONS ABOUT THE NATURE OF THE
PROBLEMS AND THE EFFICACY OF JUDICIAL INTERVENTION.  PRISON
ADMINISTRATORS ARE RESPONSIBLE FOR MAINTAINING INTERNAL ORDER AND
DISCIPLINE, FOR SECURING THEIR INSTITUTIONS AGAINST UNAUTHORIZED ACCESS
OR ESCAPE, AND FOR REHABILITATING, TO THE EXTENT THAT HUMAN NATURE AND
INADEQUATE RESOURCES ALLOW, THE INMATES PLACED IN THEIR CUSTODY.  THE
HERCULEAN OBSTACLES TO EFFECTIVE DISCHARGE OF THESE DUTIES ARE TOO
APPARENT TO WARRANT EXPLICATION.  SUFFICE IT TO SAY THAT THE PROBLEMS
OF PRISONS IN AMERICA ARE COMPLEX AND INTRACTABLE, AND, MORE TO THE
POINT, THEY ARE NOT READILY SUSCEPTLBE OF RESOLUTION BY DECREE.  MOST
REQUIRE EXPERTISE, COMPREHENSICE PLANNING, AND THE COMMITMENT OF
RESOURCES, ALL OF WHICH ARE PECULIARLY WITHIN THE PROVINCE OF THE
LEGISLATIVE AND EXECUTIVE BRANCHES OF GOVERNMENT.  FOR ALL OF THOSE
REASONS, COURTS ARE ILL EQUIPPED TO DEAL WITH THE INCAREASINGLY URGENT
PROBLEMS OF PRISON ADMINISTRATION AND REFORM.  /9/  JUDICIAL
RECOGNITION OF THAT FACT REFLECTS NO MORE THAN A HEALTHY SENSE OF
REALISM.  MOREOVER, WHERE STATE PENAL INSTITUTIONS ARE INVOLVED,
FEDERAL COURTS HAVE A FURTHER REASON FOR DEFERENCE TO THE APPROPRIATE
PRISON AUTHORITIES. 

BUT A POLICY OF JUDICIAL RESTRAINT CANNOT ENCOMPASS ANY FAILURE TO
TAKE COGNIZANCE OF VALID CONSTITUTIONAL CLAIMS WHETHER ARISING IN A
FEDERAL OR STATE INSTITUTION.  WHEN A PRISON REGULATION OR PRACTICE
OFFENDS A FUNDAMENTAL CONSTITUTIONAL GUARANTEE, FEDERAL COURTS WILL
DISCHARGE THEIR DUTY TO PROTECT CONSTITUTIONAL RIGHTS.  JOHNSON V.
AVERY, 393 U.S. 483, 486 (1969).  THIS IS SUCH A CASE.  ALTHOUGH THE
DISTRICT COURT FOUND THE REGULATIONS RELATING TO PRISONER MAIL
DEFICIENT IN SEVERAL RESPECTS, THE FIRST AND PRINCIPAL BASIS FOR ITS
DECISION WAS THE CONSTITUTIONAL COMMAND OF THE FIRST AMENDMENT, AS
APPLIED TO THE STATES BY THE FOURTEENTH AMENDMENT.  /10/ 

THE ISSUE BEFORE US IS THE APPROPRIATE STANDARD OF REVIEW FOR PRISON
REGUALTIONS RESTRICTING FREEDOM OF SPEECH.  THIS COURT HAS NOT
PREVIOUSLY ADDRESSED THIS QUESTION, AND THE TENSION BETWEEN THE
TRADITIONAL POLICY OF JUDICIAL RESTRAINT REGARDING PRISONER COMPLAINTS
AND THE NEED TO PROTECT CONSTITUTIONAL RIGHTS HAS LED THE FEDERAL
COURTS TO ADOPT A VARIETY OF WIDELY INCONSISTENT APPROACHES TO THE
PROBLEM.  SOME HAVE MAINTAINED A HANDS-OFF POSTURE IN THE FACE OF
CONSTITUTIONAL CHALLENGES TO CENSORSHIP OF PRISONER MAIL.  E.G.,
MCCLOSKEY V. MARYLAND, 357 F.2D 72 (CA4 (1964); LEE V. TAHASH, 352 F.2D
970 (CA 8 1965) (EXCEPT INSOFAR AS MAIL CENSORSHIP RULES ARE APPLIED TO
DISCRIMINATE AGAINST A PARTICULAR RACIAL OR RELIGIOUS GROUP); KRUPNICK
V. CROUSE, 366 F.2D 851 (CA10 (1966); POPE V. DAGGETT, 350 F.2D 296
(CA10 1965).  ANOTHER HAS REQUIRED ONLY THAT CENSORSHIP OF PERSONAL
CORRESPONDENCE NOT LACK SUPPORT "IN ANY RATIONAL AND CONSTITUTIONALLY
ACCEPTABLE CONCEPT OF A PRISON SYSTEM."  SOSTRE V. MCGINNIS, 442 F.2D
178, 199 (CA2 1971), CERT. DENIED, SUB NOM. OSWALD V. SOSTRE, 405 U.S.
978 (1972).  AT THE OTHER EXTREME SOME COURTS HAVE BEEN WILLING TO
REQUIRE DEMONSTRATION OF A "COMPELLING STATE INTEREST" TO JUSTIFY
CENSORSHIP OF PRISONER MAIL.  E.G., JACKSON B. GODWIN, 400 F.2D 529
(CA5 1968) (DECIDED ON BOTH EQUAL PROTECTION AND FIRST AMENDMENT
GROUNDS); MORALES V. SCHMIDT, 340 F. SUPP. 544 (W.D. WIS. 1972);
FORTUNE SOCIETY V. MCGINNIS, 319 F. SUPP. 901 (SDNY 1970).  OTHER
COURTS PHRASE THE STANDARD IN SIMILARLY DEMANDING TERMS OF "CLEAR AND
PERSENT DANGER."  WILKINSON V. SKINNER, 462 F.2D 670, 672 - 673 (CA2
1972).  AND THERE ARE VARIOUS INTERMEDIATE POSITIONS, MOST NOTABLY THE
VIEW THAT A "REGUALTION OR PRACTICE WHICH RESTRICTS THE RIGHT OF FREE
EXPRESSION THAT A PRISONER WOUDL HAVE ENJOYED IF HE HAD NOT BEEN
IMPRISONED MUST BE RELATED BOTH REASONABLY AND NECESSARILY TO THE
ADVANCEMENT OF SOME JUSTIFIABLE PURPOSE."  CAROTHERS V. FOLLETTE, 314
F. SUPP. 1014, 1024 (SDNY 1970) (CITATIONS OMITTED).  SEE ALSO GATES V.
COLLIER, 349 F. SUPP. 554 (SDNY 1972).     THIS ARRAY OF DISPARATE
APPROACHES AND THE ABSENCE OF ANY GENERALLY ACCEPTED MAIL CENSHOSHIP
REGULATIONS DISSERVE BOTH THE COMPETING INTERESTS AT STAKE.  ON THE ONE
HAND, THE FIRST AMENDMENT INTERESTS INPLICATED BY CENSORSHIP OF INMATE
CORRESPONDENCE ARE GIVEN ONLY HAPHAZARD AND INCONSISTENT PROTECTION. 
ON THE OTHER, THE UNCERTAINTY OF THE CONSTITUTIONAL STANDARD MAKES IT
IMPOSSIBLE FOR CORRECTIONAL OFFICIALS TO ANTICIPATE WHAT IS REQUIRED OF
THEM AND INVITES REPETITIVE, PIECEMEAL LITIGATION ON BEHALF OF
INMATES.  THE RESULT HAS BEEN UNNECESSARILY TO PERPETUATE THE
INVOLVEMENT OF THE FEDERAL COURTS IN AFFAIRS OF PRISON ADMINISTRTION. 
OUR TASK IS TO FORMULATE A STANDARD OF REVIEW FOR PRISONER MAIL
CENSORSHIP THAT WILL BE RESPONSIVE TO THESE CONCERNS. 

        B 

WE BEGIN OUR ANALYSIS OF THE PROPER STANDARD OF REVIEW FOR
CONSTITUTIONAL CHALLENGES TO CENSORSHIP OF PRISONER MAIL WITH A
SOMEWHAT DIFFERENT PREMISE FROM THAT TAKEN BY THE OTHER FEDERAL COURTS
THAT HAVE CONSIDERED THE QUESTION.  FOR THE MOST PART, THESE COURTS
HAVE DEALT WITH CHALLENGES TO CENSORSHIP OF PRISONER MAIL AS INVOLVING
BROAD QUESTIONS OF "PRISONERS' RIGHTS."  THIS CASE IS NO EXCEPTION. 
THE DISTRICT COURT STATED THE ISSUE IN GENERAL TERMS AS "THE
APPLICABILITY OF FIRST AMENDMENT RIGHTS TO PRISON INMATES.  . .," 354
F. SUPPP., AT 1096, AND THE ARGUMENTS OF THE PARTIES REFLECT THE
ASSUMPTION THAT THE RSOLUTION OF THIS CASE REQUIRES AN ASSESSMENT OF
THE EXTENT TO WHICH PRISONERS MAY CLAIM FIRST AMENDMENT FREEDOMS.  IN
OUR VIEW THIS INQUIRY IS UNNECESSARY.  IN DETERMINING THE PROPER
STANDARD OF REVIEW FOR PRISON RESTRICTIONS ON INMATE CORRESPONDENCE, WE
HAVE NO OCCASION TO CONSIDER THE EXTENT TO WHICH AN INDIVIDUAL'S RIGHT
TO FREE SPEECH SURVIVES INCARCERATION, FOR A NARROWER BASIS OF DECISION
IS AT HAND.  IN THE CASE OF DIRECT PERSONAL CORRESPONDENCE BETWEEN
INMATES AND THOSE WHO HAVE A PARTICULARIZED INTEREST IN COMMUNICATING
WITH THEM, /11/  MAIL CENSORSHIP IMPLICATES MORE THAN THE RIGHT OF
PRISONERS. 

COMMUNICATION BY LETTER IS NOT ACCOMPLISHED BY THE ACT OF WRITING
WORDS ON PAPER.  RATHER, IT IS EFFECTED ONLY WHEN THE LETTER IS READ BY
THE ADDRESSEE.  BOTH PARTIES TO THE CORRESPONDENCE HAVE AN INTEREST IN
SECURING THAT RESULT, AND CENSORSHIP OF THE COMMUNICATION BETWEEN THEM
NECESSARILY IMPINGES ON THE INTEREST OF EACH.  WHATEVER THE STATUS OF A
PRISONERHS CLAIM TO UNCENSORED CORRESPONDENCE WITH AN OUTSIDER, IT IS
PLAIN THAT THE LATTER'S INTEREST IS GROUNDED IN THE FIRST AMENDMENT'S
GUARANTEE OF FREEDOM OF SPEECH.  AND THIS DOES NOT DEPEND ON WHETHER
THE NONPRISONER CORRESPONDENT IS THE AUTHOR OR INTENDED RECIPIENT OF A
PARTICULAR LETTER, FOR THE ADDRESSEE AS WELL AS THE SENDER OF DIRECT
PERSONAL CORRESPONDENCE DERIVES FROM THE FIRST AND FOURTEENTH
AMENDMENTS A PROTECTION AGAINST UNJUSTIFIED GOVERNMENTAL INTERFERENCE
WITH THE INTENDED COMMUNICATION.  LAMONT V. POSTMASTER GENERAL, 381
U.S. 301 (1965).  ACCORD KLEINDIENST V. MANDEL, 408 U.S. 753, 762 - 765
(1972); MARTIN V. CITY OF STRUTHERS, 319 U.S. 141, 143 (1943).  WE DO
NOT DEAL HERE WITH DIFFICULT QUESTIONS OF THE SO-CALLED "RIGHT TO HEAR"
AND THIRD-PARTY STANDING BUT WITH A PARTICULAR MEANS OF COMMUNICATION
IN WHICH THE INTERESTS OF BOTH PARTIES ARE INEXTRICABLY MESHED.  THE
WIFE OF A PRISON INMATE WHO IS NOT PERMITTED TO READ ALL THAT HER
HUSBAND WANTED TO SAY TO HER HAS SUFFERED AN ABRIDGMENT OF HER INTEREST
IN COMMUNICATING WITH HIM AS PLAIN AS THAT WHICH RESULTS FROM
CENSORSHIP MAIL WORKS A CONSEQUENTILA RESTRICTION ON THE FIRST AND
FOURTEENTH AMENDMENTS RIGHTS OF THOSE WHO ARE NOT PRISONERS. 

ACCORDINGLY, WE REJECT ANY ATTEMPT TO JUSTIFY CENSORSHIP OF INMATE
CORRESPONDENCE MERELY BE REFERENCE TO CERTAIN ASSUMPTIONS ABOUT THE
LEGAL STATUS OF PRISONERS.  INTO THIS CATEGORY OF ARGUMENT FALLS
APPELLANTS' CONTENTION THAT "AN INMATE'S RIGHTS WITH REFERENCE TO
SOCIAL CORRESPONDENCE ARE SOMETHING FUNDAMENTALLY DIFFERENT THAN THOSE
ENJOYED BY THIS FREE BROTHER."  BRIEF FOR APPELLANTS 19.  THIS LINE OF
ARGUMENT AND THE UNDEMANDING STANDARD OF REVIEW IT IS INTENDED TO
SUPPORT FAIL TO RECOGNIZE THAT THE FIRST AMENDMENT LIBERTIES OF FREE
CITIZENS ARE IMPLICATED IN CENSORSHIP OF PRISONER MAIL  WE THEREFORE
TURN FOR GUIDANCE, NOT TO CASE INVOLVING QUESTIONS OF "PRISONERS'
RIGHTS," BUT TO DECISIONS OF THIS COURT DEALING WITH THE GENERAL
PROBLEM OF INCIDENTAL RESTRICTIONS ON FIRST AMENDMENT LIBERTIES IMPOSED
IN FURTHERANCE OF LEGITIMATE GOVERNMENTAL ACTIVITIES. 

AS THE COURT NOTED IN TINKER V. DES MOINES SCHOOL DISTRICT, 393 U.S.
503, 506 (1969), FIRST AMENDMENT GUARANTEES MUST BE "APPLIED IN LIGHT
OF THE SPECIAL CHARACTERISTICS OF THE . . . ENVIRONMENT."  TINKER
CONCERNED THE INTERPLAY BETWEEN THE RIGHT TO FREEDOM OF SPEECH OF
PUBLIC HIGH SCHOOL STUDENTS AND "THE NEED FOR AFFIRMING THE
COMPREHENSIVE AUTHORITY OF THE STATES AND OF SCHOOL OFFICIALS,
CONSISTENT WITH FUNDAMENTAL CONSTITUTIONAL SAFEGUARDS, TO PRESCRIBE AND
CONTROL CONDUCT IN THE SCHOOLS."  ID., AT 507.  IN OVERRULING A SCHOOL
REGULATION PROHIBITING THE WEARING OF ANTIWAR ARMBANDS, THE COURT
UNDERTOOK A CAREFUL ANALYSIS OF THE LEGITIMATE REQUIREMENTS OF ORDERLY
SCHOOL ADMINISTRATION IN ORDER TO ENSURE THAT THE STUDENTS WERE
AFFORDED MAXIMUM FREEDOM OF SPEECH CONSISTENT WITH THOSE REQUIREMENTS. 
THE SAME APPROACH WAS FOLLOWED IN HEALY V. JAMES, 408 U.S. 169 (1972),
WHERE THE COURT CONSIDERED THE REFUSAL OF A STATE COLLEGE TO GRANT
OFFICIAL RECOGNITION TO A GROUP OF STUDENTS WHO WISHED TO ORGANIZE A
LOCAL CHAPTER OF THE STUDENTS ORGANIZATION NOTED FOR POLITICAL ACTIVISM
AND CAMPUS DISRUPTION.  THE COURT FOUND THAT NEITHER THE IDENTIFICATION
OF THE LOCAL STUDENT GROUP WITH THE NATIONAL SDS, NOR THE PURPORTEDLY
DANGEROUS POLITICAL PHILOSOPHY OF THE LOCAL GROUP, NOR THE COLLEGE
ADMINISTRATION'S FEAR OF FUTURE, UNSPECIFIED DISRUPTIVE ACTIVITIES BY
THE STUDENTS COULD JUSTIFY THE INCURSION ON THE RIGHT OF FREE
ASSOCIATION.  THE COURT ALSO FOUND, HOWEVER, THAT THIS RIGHT COULD BE
LIMITED IF NECESSARY TO PREVENT CAMPUS DISRUPTION, ID., AT 189 - 190,
N.20, AND REMANDED THE CASE FOR DETERMINATION OF WHETHER THE STUDENTS
HAD IN FACT REFUSED TO ACCEPT REASONABLE REGULATIONS GOVERNING STUDENT
CONDUCT. 

IN UNITED STATES V. O'BRIEN, 391 U.S. 367 (1968), THE COURT DEALT
WITH INCIDENTAL RESTRICTIONS ON FREE SPEECH OCCASIONED BY THE EXERCISE
OF THE GOVERNMENTAL POWER TO CONSCRIPT MEN FOR MILITARY SERVICE. 
O'BRIEN HAD BURNED HIS SELECTIVE SERVICE REGISTRATION CERTIFICATE ON
THE STEPS OF A COURTHOUSE IN ORDER TO DRAMZTIZE HIS OPPOSITION TO THE
DRAFT AND TO OUR COUNTRYHS INVOLVEMENT IN VIETNAM.  HE WAS CONVICTED OF
VIOLATING A PROVISION OF THE SELECTIVE SERVICE LAW THAT HAD RECENTLY
BEEN AMENDED TO PROHIBIT KNOWING DESTRUCTION OR MUTILATION OF
REGISTRATION CERTIFICATES.  O'BRIEN ARGUED THAT THE PURPOSE AND EFFECT
OF THE AMENDMENT WERE TO ABRIDGE FREE EXPRESSION AND THAT THE STATUTORY
PROVISIONS WAS THEREFORE UNCONSTITUTIONAL, BOTH AS ENACTED AND AS
APPLIED TO HIM.  ALTHOUGH O'BRIENHS ACTIVITY INVOLVED "CONDUCT" RATHER
THAN PURE "SPEECH,"  THE COURT DID NOT DEFINE AWAY THE FIRST AMENDMENT
CONCERN, AND NEITHER DID IT RULE THAT THE PRESENCE OF A COMMUNICATIVE
INTENT NECESSARILY RENDERED O'BRIEN'S ACTIONS IMMUNE TO GOVERNMENTAL
REGULATION.  INSTEAD, IT ENUNCIATED THE FOLLOWING FOUR-PART TEST: 

"(A) GOVERNMENT REGULATION IS SUFFICIENTLY JUSTIFIED IF IT IS WITHIN
THE CONSTITUTIONAL POWER OF THE GOVERNMENT; IF IT FURTHERS AN IMPORTANT
OR SUBSTANTILA GOVERNMENTAL INTEREST; IF THE GOVERNMENTAL INTEREST IS
UNRELATED TO THE SUPPRESSION OF FREE EXPRESSION; AND IF THE INCIDENTAL
RESTRICTION ON ALLEGED FIRST AMENDMENT FREEDOMS IS NO GREATER THAN IS
ESSENTIAL TO THE FURTHERANCE OF THAT INTEREST."  ID., AT 377. 

OF COURSE, NONE OF THESE PRECEDENTS DIRECTLY CONTROLS THE INSTANT
CASE.  IN O'BRIEN THE COURT CONSIDERED A FEDERAL STATUTE WHICH ON ITS
FACE PROHIBITED CERTAIN CONDUCT HAVING NO NECESSARY CONNECTION WITH
FREEDOM OF SPEECH.  THIS LED THE COURT TO DIFFERENTIATE BETWEEN
"SPEECH" AND "NONSPEECH" ELEMENTS OF A SINGLE COURSE OF CONDUCT, A
DISTINCTION THAT HAS LITTLE RELEVANCE HERE.  BOTH TINKER AND HEALY
CONCERNED FIRST AND FOURTEENTH AMENDMENT LIBERTIES IN THE CONTEXT OF
STATE EDUCATIONAL INSTITUTIONS, A CIRCUMSTANCE INVOLVING RATHER
DIFFERENT GOVERNMENTAL INTERESTS THAN ARE AT STAKE HERE.  IN BROADER
TERMS, HOWEVER, THESE PRECEDENTS INVOLVED INCIDENTAL RESTRICTIONS ON
FIRST AMENDMENT LIBERTIES BY GOVERNMENTAL ACTION IN FURTHERANCE OF
LEGITIMATE AND SUBSTANTIAL STATE INTEREST OTHER THAN SUPPRESSION OF
EXPRESSION.  IN THIS SENSE THESE CASES ARE GENERALLY ANALOGOUS TO OUR
PRESENT INQUIRY. 

THE CASE AT HAND ARISES IN THE CONTEXT OF PRISONS.  ONE OF THE
PRIMARY FUNCTIONS OF GOVERNMENT IS THE PRESERVATION OF SOCIETAL ORDER
THROUGH ENFORCEMENT OF THE CRIMINAL LAW, AND THE MAINTENANCE OF PENAL
INSTITUTIONS IS AN ESSENTIAL PART OF THAT TASK.  THE IDENTIFICABLE
GOVERNMENTAL INTERESTS AT STAKE IN THIS TASK ARE THE PRESERVATION OF
INTERNAL ORDER AND DISCIPLINE, /12/  THE MAINTENANCE OF INSTITUTIONAL
SECURITY AGAINST ESCAPE OR UNAUTHORIZED ENTRY, AND THE REHABILITATION
OF THE PRISONERS.  WHILE THE WEIGHT OF PROFESSIONAL OPINION SEEMS TO BE
THAT INMATE FREEDOM TO CORRESPOND WITH OUTSIDERS ADVANCES RATHER THAN
RETARDS THE GOAL OF REHABILITATION, /13/  THE LEGITIMATE GOVERNMENTAL
INTEREST IN THE ORDER AND SECURITY OF PENAL INSTITUTIONS JUSTIFIES THE
IMPOSITION OF CERTAIN RESTRAINTS ON INMATE CORRESPONDENCE.  PERHAPS THE
MOST OBVIOUS EXAMPLE OF JUSTIFIABLE CENSORSHIP OF PRISONER MAIL WOULD
BE REFUSAL TO SEND OR DELIVER LETTERS CONCERNING ESCAPE PLANS OR
CONTAINING OTHER INFORMATION CONCERNING PROPOSED CRIMINAL ACTIVITY,
WHETHER WITHIN OR WITHOUT THE PRISON.  SIMILARLY, PRISON OFFICIALS MAY
PROPERLY REFUSE TO TRANSMIT ENCODED MESSAGES.  OTHER LESS OBVIOUS
POSSIBILITIES COME TO MIND, BUT IT IS NOT OUR PURPOSE TO SURVEY THE
RANGE OF CIRCUMSTANCES IN WHICH PARTICULAR RESTRICTIONS ON PRISONER
MAIL MIGHT BE WARRANTED BY THE LEGITIMATE DEMANDS OF PRISON
ADMINISTRATION AS THEY EXIST FROM TIME TO TIME IN THE VARIOUS KINDS OF
PENAL INSTITUTIONS FOUND IN THIS COUNTRY.  OUR TASK IS TO DETERMINE THE
PROPER STANDARD FOR DECIDING WHETHER A PARTICULAR REGULATION OR
PRACTICE RELATING TO INMATE CORRESPONDENCE CONSTITUTES AN IMPERMISSIBLE
RESTRAINT OF FIRST AMENDMENT LIBERTIES. 

APPLYING THE TEACHINGS OF OUR PRIOR DECISIONS TO THE INSTANT
CONTEXT, WE HOLD THAT CENSORSHIP OF PRISONER MAIL IS JUSTIFIED IF THE
FOLLOWING CRITERIA ARE MET.  FIRST, THE REGULATION OF PRACTICE IN
QUESTION MUST FURTHER AN IMPORTANT OR SUBSTANTIAL GOVERNMENTAL INTEREST
UNRELATED TO THE SUPPRESSION OF EXPRESSION.  PRISON OFFICIALS MAY NOT
CENSOR INMATE CORRESPONDENCE SIMPLY TO ELIMINATE UNFLATTERING OR
UNWELCOME OPINIONS OR FACTUALLY INACCURATE STATEMENTS.  RATHER, THEY
MUST SHOW THAT A REGULATION AUTHORIZING MAIL CENSORSHIP FURHTERS ONE OR
MORE OF THE SUBSTANTIAL GOVERNMENTAL INTERESTS OF SECURITY, ORDER, AND
REHABILITATION.  SECOND, THE LIMITATION OF FIRST AMENDMENT FREEDOMS
MUST BE NO GREATER THAN IS NECESSARY OR ESSENTIAL TO THE PROTECTION OF
THE PARTICULAR GOVERNMENTAL INTEREST INVOLVED.  THUS A RESTRICTION ON
INMATE CORRESPONDENCE THAT FURTHERS AN IMPORTANT OR SUBSTANTIAL
INTEREST OF PENAL ADMINISTRATION WILL NEVERTHELESS BE INVALID IF ITS
SWEEP IS UNNECESSARILY BROAD.  THIS DOES NOT MEAN, OF COURSE, THAT
PRISON ADMINISTRATORS MAY BE REQUIRED TO SHOW WITH CERTAINTY THAT
ADVERSE CONSEQUENCES WOULD FLOW FROM THE FAILURE TO CONSOR A PARTICULAR
LETTER.  SOME LATITUDE IN ANTICIPATING THE PROBABLE CONSEQUENCES OF
ALLOWING CERTAIN SPEECH IN A PRISON ENVIRONMENT IS ESSENTIAL TO THE
PROPER DISCHARGE OF AN ADMINISTRATORHS DUTY.  BUT ANY REGULATION OR
PRACTICE THAT RESTRICTS INMATE CORRESPONDENCE MUST BE GENERALLY
NECESSARY TO PROTECT ONE OR MORE OF THE LEGITIMATE GOVERNMENTAL
INTERESTS IDENTIFIED ABOVE.  /14/ 

ON THE BASIS OF THIS STANDARD, WE AFFIRM THE JUDGMENT OF THE
DISTRICT COURT.  THE REGULATIONS INVALIDATED BY THAT COURT AUTHORIZED,
INTER ALIA, CENSORSHIP OF STATEMENTS THAT "UNDULY COMPLAIN" OR "MAGNIFY
GRIEVANCES," EXPRESSION OF "INFLAMMATORY POLITICAL, RACIAL, RELIGIOUS
OR OTHER VIEWS," AND MATTER DEEMED "DEFAMATORY" OR "OTHERWISE
INAPPROPRIATE."  THESE REGULATIONS FAIRLY INVITED PRISON OFFICIALS AND
EMPLOYEES TO APPLY THEIR OWN PERSONAL PREJUDICES AND OPINIONS AS
STANDARDS FOR PRISONER MAIL CENSORSHIP.  NOT SURPRISINGLY, SOME PRISON
OFFICIALS USED THE EXTRAORDINARY LATITUDE FOR DISCRETION AUTHORIZED BY
THE REGULATIONS TO SUPPRESS UNWELCOME CRITICISM.  FOR EXAMPLE, AT ONE
INSTITUTION UNDER THE DEPARTMENT'S JURISDICTION, THE CHECKLIST USED BY
THE MAILROOM STAFF AUTHROIZED REJECTION OF LETTERS "CRITICIZING POLICY,
RULES OR OFFICIALS," AND THE MAILROOM SERGEANT STATED IN A DEPOSITION
THAT HE WOULD REJECT AS "DEFAMTORY" LETTERS "BELITTLING STAFF OR OUR
JUDICIAL SYSTEM OR ANYTHING CONNECTED WITH DEPARTMENT OF CORRECTIONS." 
CORRESPONDENCE WAS ALSO CENSORED FOR "DISRESPECTFUL COMMENTS,"
DEROGATORY REMARKS," AND THE LIKE. 

APPELLANTS HAVE FAILED TO SHOW THAT THESE BROAD RESTRICTIONS ON
PRISONER MAIL WERE IN ANY WAY NECESSARY TO THE FURTHERANCE OF A
GOVERNMENTAL INTEREST UNRELATED TO THE SUPPRESSION OF EXPRESSION. 
INDEED, THE HEART OF APPELLANTS'  POSITION IS NOT THAT THE REGUALTIONS
ARE JUSTIFIED BY A LEGITIMATE GOVERNMENTAL INTEREST BUT THAT THEY DO
NOT NEED TO BE.  THIS MISCONCEPTION IS NOT ONLY STATED AFFIRMATIVELY;
IT ALSO UNDERLIES APPELLANTS' DISCUSSION OF THE PARTICULAR REGUALTIONS
UNDER ATTACK.  FOR EXAMPLE, APPELLANTS' SOLE DEFENSE OF THE PROHIBITION
AGAINST MATTER THAT IS "DEFAMATORY" OR "OTHERWISE INAPPROPRIATE" IS
THAT IT IS "WITHIN THE DISCRETION OF THE PRISON ADMINISTRATORS."  BRIEF
FOR APPELLANTS 21.  APPELLANTS CONTEND THAT STATEMENTS THAT "MAGNIFY
GRIEVANCES" OR UNDULY COMPLAIN"  ARE CENSORED "AS A PRECAUTION AGAINST
FLASH RIOTS AND IN THE FURTHERANCE OF INMATE REHABILITATION."  ID., AT
22.  BUT THEY DO NOT SUGGEST HOW THE MAGNIFICATION OF GRIEVANCES OR
UNDUE COMPLAINING, WHICH PRESUMABLY OCCURS IN OUTGOING LETTERS, COULD
POSSIBLY LEAD TO FLASH RIOTS, NOR DO THEY SPECIFY WHAT CONTRIBUTION THE
SUPPRESSION OF COMPLAINTS MAKES TO THE REHABILITATION OF CRIMINALS. 
AND, APPELLANTS DEFEND THE BAN AGAINST "INFLAMMATORY POLITICAL, RACIAL,
RELIGIOUS OR OTHER VIEWS" ON THE GROUND THAT "SUCH MATTER CLEARLY
PRESENTS A DANGER TO PRISON SECURITY.  . . ."  ID., AT 21.  THE
REGUALTION, HOWEVER, IS NOT NARROWLY DRAWN TO REACH ONLY MATERIAL THAT
MIGHT BE THOUGH TO ENCOURAGE VIOLENCE NOR IS ITS APPLICATION LIMITED TO
INCOMING LETTERS.  IN SHORT, THE DEPARTMENT'S REGUALTIONS AUTHORIZED
CENSORSHIP OF PRISONER MAIL FAR BROADER THAN ANY LEGITIMATE INTEREST OF
PENAL ADMINISTRATION DEMANDS AND WERE PROPERLY FOUND INVALID BY THE
DISTRICT COURT.  /15/

        D 

WE ALSO AGREE WITH THE DISTRICT COURT THAT THE DECISION TO CENSOR OR
WITHHOLD DELIVERY OF A PARTICULAR LETTER MUST BE ACCOMPANIED BY MINIMUM
PROCEDURAL SAFEGUARDS.  THE INTEREST OF PRISONERS AND THEIR
CORRESPONDENTS IN UNCENSORED COMMUNICATION BY LETTER, GROUNDED AS IT IS
IN THE FIRST AMENDMENT, IS PLAINLY A "LIBERTY" INTEREST WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT EVEN THOUGH QUALIFIED OF NECESSITY
BY THE CIRCUMSTANCE OF IMPRISONMENT.  AS SUCH, IT IS PROTECTED FROM
ARBITARY GOVERNMENTAL INVASION.  SEE BOARD OF REGENTS V. ROTH, 408 U.S.
564 (1972); PERRY V. SINDERMANN, 408 U.S. 593 (1972).  THE DISTRICT
COURT REQUIRED THAT AN INMATE BE NOTIFIED OF THE REJECTION OF A LETTER
WRITTEN BY OR ADDRESSED TO HIM, THAT THE AUTHOR OF THAT LETTER BE GIVEN
A REASONABLE OPPORTUNITY TO PROTEST THAT DECISION, AND THAT COMPLAINTS
BE REFERRED TO A PRISON OFFICIAL OTHER THAN THE PERSON WHO ORIGINALLY
DISAPPROVED THE CORRESPONDENCE.  THESE REQUIREMENTS DO NOT APPEAR TO BE
UNDULY BURDENSOME, NOR DO APPELLANTS SO CONTEND.  ACCORDINGLY, WE
AFFIRM THE JUDGMENT OF THE DISTRICT COURT WITH RESPECT TO THE
DEPARTMENT'S REGULATIONS RELATING TO PRISONER MAIL. 

        II 

THE DISTRICT COURT ALSO ENJOINED CONTINUED ENFORCEMENT OF
ADMINISTRATIVE RULE MV-IV-02, WHICH PROVIDES IN PERTINENT PART: 

     "INVESTIGATORS FOR AN ATTORNEY-OF-RECORD WILL BE CONFINED TO

  NOT MORE THAN TWO.  SUCH INVESTIGATORS MUST BE LICENSED BY THE

STATE OR MUST BE MEMBERS OF THE STATE BAR.  DESIGNATION MUST BE

  MADE IN WRITING BY THE ATTORNEY." 

BY RESTRICTING ACCESS TO PRISONERS TO MEMBERS OF THE BAR AND LICENSED
PRIVATE INVESTIGATORS, THIS REGULATION IMPOSED AN ABSOLUTE BAN ON THE
USE BY ATTORNEYS OF LAW STUDENTS AND LEGAL PARAPROFESSIONALS TO
INTERVIEW INMATE CLIENTS.  IN FACT, ATTORNEYS COULD NOT EVEN DELEGATE
TO SUCH PERSONS THE TASK OF OBTAINING PRISONERS' SIGNATURES ON LEGAL
DOCUMENTS.  THE DISTRICT COURT REASONED THAT THIS RULE CONSTITUTED AN
UNJUSTIFIABLE RESTRICTION ON THE RIGHT OF ACCESS TO THE COURTS.  WE
AGREE. 

THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW HAS AS A
COROLLARY THE REQUIREMENT THAT PRISONERS BE AFFORDED ACCESS TO THE
COURTS IN ORDER TO CHALLENGE UNLARFUL CONVICTIONS AND TO SEEK REDRESS
FOR VIOLATIONS OF THEIR CONSTITUTIONAL RIGHTS.  THIS MEANS THAT INMATES
MUST HAVE A REASONABLE OPPORTUNITY TO SEEK AND RECEIVE THE ASSISTANCE
OF ATTORNEYS.  REGUALTIONS AND PRACTICES THAT UNJUSTIFIABLY OBSTRUCT
THE AVAILABILITY OF PROFESSIONAL REPRESENTATION OR OTHER ASPECTS OF THE
RIGHT OF ACCESS TO THE COURTS AR EINVALID.  EX PARTE HULL, 312 U.S. 546
(1941). 

THE DISTRICT COURT FOUND THAT THE RULE RESTRICTING ATTORNEY-CLIENT
INTERVIEWS TO MEMBERS OF THE BAR AND LICENSED PRIVATE INVESTIGATORS
INHIBITED ADEQUATE PROFESSIONAL REPRESENTATION OF INDIGENT INMATES. 
THE REMOTENESS OF MANY CALIFORNIA PENAL INSTITUTIONS MAKES A PERSONAL
VISIT AN INMATE CLIENT A TIME-CONSUMING THE USE OF LAW STUDENTS OR
OTHER PARAPROFESSIONALS FOR ATTORNEY-CLIENT INTERVIEWS WOULD DETER SOME
LAWYERS FROM REPRESENTING PRISONERS WHO COULD NOT AFFORD TO PAY FOR
GATORS.  AND THOSE LAWYERS WHO AGREED TO DO SO WOULD WASTE TIME THAT
MIGHT BE EMPLOYED MORE EFFICACIOUSLY IN WORKING ON THE INMATES' LEGAL
PROBLEMS.  ALLOWING LAW STUDENTS AND PARAPROFESSIONALS TO INTERVIEW
INMATES MIGHT WELL REDUCE THE COST OF LEGAL REPRESENTATION FOR
PRISONERS.  THE DISTRICT COURT THEREFORE CONCLUDED THAT THE REGULATION
IMPOSED A SUBSTANTIAL BURDEN ON THE RIGHT OF ACCESS TO THE COURTS. 

AS THE DISTRICT COURT RECOGNIZED, THIS CONCLUSION DOES NOT END THE
INQUIRY, FOR PRISON ADMINISTRTORS ARE NOT REQUIRED TO ADOPT EVERY
PROPOSAL THAT MAY BE THOUGHT TO FACILITATE PRISONER ACCESS TO THE
COURTS.  THE EXTENT TO WHICH THAT RIGHT IS BURDENED BY A PARTICULAR
REGULATION OR PRACTIVE MUST BE WEIGHED AGAINST THE LEGITIMATE INTERESTS
OF PENAL ADMINISTRATION AND THE PROPER REGARD THAT JUDGES SHOULD GIVE
TO THE EXPERTISE AND DISCRETIONARY AUTHORITY OF CORRECTIONAL
OFFICIALS.  IN THIS CASE THE BAN AGAINST THE USE OF LAW STUDENTS AND
OTEHR PARAPROFESSIONAL PERSONNEL WAS ABSOLUTE.  ITS PROHIBITION WAS NOT
LIMITED TO PROSPECTIVE INTERVIEWS WHO POSED SOME COLORABLE THREAT TO
SECURITY OR TO THOSE INMATES THOUGHT TO BE ESPECIALLY DANGEROUS.  NOR
WAS IT SHOWN THAT A LESS RESTRICTIVE REGUALTION WOULD UNDULY BURDEN THE
ADMINISTRATIVE TASK OF SCREENING AND MONITORING VISITORS. 

APPELLANTS' ENFORCEMENT OF THE REGULATION IN QUESTION ALSO CREATED
AN ARBITRARY DISTINCTION BETWEEN LAW STUDENTS EMPLOYED BY PRACTICING
ATTORNEYS AND THOSE ASSOCIATED WITH LAW SCHOOL PROGRAMS PROVIDING LEGAL
ASSISTANCE TO PRISONERS.  /16/  WHILE THE DEPARTMENT FLATLY PROHIBITED
INTERVIEWS OF ANY SORT BY LAW STUDENTS WORKING FOR ATTORNEYS, IT FREELY
ALLOWED PARTICIPANTS OF A NUMBER OF LAW SCHOOL PROGRAMS TO ENTER THE
PRISONS AND MEET WITH INMATES.  THESE LARGELY UNSUPERVISED STUDENTS
WERE ADMITTED WITHOUT ANY SECURITY CHECK OTHER THAN VERTIFICATION OF
THEIR ENROLLMENT IN A SCHOOL PROGRAM.  OF COURSE, THE FACT THAT
APPELLANTS HAVE ALLOWED SOME PERSONS TO CONDUCT ATTORNEY-CLIENT
INTERVIEWS WITH PRISONERS DOES NOT MEAN THAT THEY ARE REQUIRED TO ADMIT
OTHER,S BUT THE ARBITRARINESS OF THE DISTINCTION BETWEEN THE TWO
CATEGORIES OF LAW STUDENTS DOES REVEAL THE ABSENCE OF ANY REAL
JUSTIFICATION FOR THE SWEEPING PROHIBITION OF ADMINISTRATIVE RULE MV-IV
02.  WE CANNOT SAY THAT THE DISTRICT COURT ERRED IN INVALIDATING THIS
REGULATION. 

THIS RESULT IS MANDATED BY OUR DECISION OF JOHNSON V. AVERY, 393
U.S. 483 (1969).  THERE THE COURT STRUCK DOWN A PRISON REGULATION
PROHIBITING ANY INMATE FROM ADVISING OR ASSISTING ANOTHER IN THE
PREPARATION OF LEGAL DOCUMENTS.  GIVEN THE INADEQUACY OF ALTERNATIVE
SOURCES OF LEGAL ASSISTANCE, THE RULE HAD THE EFFECT OF DENYING TO
ILLITERATE OR POORLY EDUCATED INMATES ANY OPPORTUNITY TO VINDICATE
POSSIBLY VALID CONSTITUTIONAL CLAIMS.  THE COURT FOUND THAT THE
REGUALTION IMPERMISSIBLY BURDENED THE RIGHT OF ACCESS TO THE COURTS
DESPITE THE NOT INSIGNIFICANT STATE INTEREST IN PREVENTING THE
ESTABLISHMENT OF PERSONAL POWER STRUCTURES BY UNSCRUPULOUS JAILHOUSE
LAWYERS AND THE ATTENDANT PROBLEMS OF PRISON DISCIPLINE THAT FOLLOW. 
THE COUNTERVAILING STATE INTEREST IN JOHNSON IS, IF ANYTHING, MORE
PERSUASIVE THAN ANY INTEREST ADVANCED BY APPELLANTS IN THE INSTANT
CASE. 

THE JUDGMENT IS

              AFFIRMED. 

/1/  DIRECTOR'S RULE 2401 PROVIDED:  "THE SENDING AND RECEIVING OF
MAIL IS A PRIVILEGE, NOT A RIGHT, AND ANY VIOLATION OF THE RULES
GOVERNING MAIL PRIVILEGES EITHER BY YOU OR BY YOUR CORRESPONDENTS MAY
CAUSE SUSPENSION OF THE MAIL PRIVILEGES." 

/2/  DIRECTOR'S RULE 1201 PROVIDED:  "INMATE BEHAVIOR: ALWAYS
CONDUCT YOURSELF IN AN ORDERLY MANNER.  DO NOT FIGHT OR TAKE PART IN
HORESPLAY OR PHYSICAL ENCOUNTERS EXCEPT AS PART OF THE REGULAR ATHLETIC
PROGRAM.  DO NOT AGITATE, UNDULY COMPLAIN, MAGNIFY GRIEVANCES, OR
BEHAVE IN ANY WAY WHICH MIGHT LEAD TO VIOLENCE."  IT IS UNDISPUTED THAT
THE PHRASES "UNDULY COMPLAIN" AND "MAGNIFY GRIEVANCES" WERE APPLIED TO
PERSONAL CORRESPONDENCE. 

/4/  DIRECTOR'S RULE 1205 PROVIDED:  "THE FOLLOWING IS CONTRABAND: 

"D.  ANY WRITINGS OR VOICE RECORDINGS EXPRESSING INFLAMMATORY
POLITICAL, RACIAL, RELIGIOUS OR OTHER VIEWS OR BELIEFS WHEN NOT IN THE
IMMEDIATE POSSESSION OF THE ORIGINATOR, OR WHEN THE ORIGINATOR'S
POSSESSION IS USED TO SUBVERT PRISON DICIPLINE BY DISPLAY OR
CIRCULATION."  RULE 1205 ALSO PROVKIDES THAT WRITINGS "NOT DEFINED AS
CONTRABAND UNDER THIS RULE, BUT WHICH , IF CIRCULATED AMONG OTHER
INMATES, WOULD IN THE JUDGMENT OF THE WARDEN OR SUPERINTENDENT TEND TO
SUBVERT PRISON ORDER OR DICIPLINE, MAY BE PLACED IN THE INMATE'S
PROPERTY, TO WHICH HE SHALL HAVE ACCESS UNDER SUPERVISION." 

/4/  AT TIME OF APPELLEE'S AMENDED COMPLAINT, RULE 2402 (8) INCLUDED
PROHIBITIONS AGAINST "PRISON GOSSIP OR DISCUSSION OF OTHER INMATES." 
BEFORE THE FIRST OPINION OF THE DISTRICT COURT, THESE PROVISIONS WERE
DELETED, AND THE PHRASE "CONTAIN FOREIGN MATTER"  WAS SUBSTITUTED IN
THEIR STEAD. 

/5/  IN BAGGETT THE COURT CONSIDERED THE CONSTITUTIONALITY OF
LOYALTY OATHS REQUIRED OF CERTAIN STATE EMPLOYEES AS A CONDITION OF
EMPLOYMENT.  FOR THE PURPOSE OF APPLYING THE DOCTRINE OF ABSTENTION THE
COURT DISTINGUISHED BETWEEN TWO KINDS OF VAGUENESS ATTACKS.  WHERE THE
CASE TURNS ON THE APPLICABILITY OF A STATE STATUTE OR REGULATION TO A
PARTICULAR PERSON OR A DEFINED COURSE OF CONDUCT, RESOULTION OF THE
UNSETTLED QUESTION OF STATE LAW MAY ELIMINATE ANY NEED FOR
CONSTITUTIONAL ADJUDICATION.  377 U.S., AT 376 - 377.  ABSTENTION IS
THEREFORE APPROPRIATE.  WHERE, HOWEVER, AS IN THIIS CASE, THE STATUTE
OR REGULATION IS CHALLENGED AS VAGUE BECAUSE INDIVIDUALS TO WHOM IT
PLAINLY APPLIES SIMPLY CANNOT UNDERSTAND WHAT IS REQUIRED OF THEM AND
DO NOT WISH TO FORSWEAR ALL ACTIVITY ARGUABLY WITHIN THE SCOPE OF THE
VAGUE TERMS, ABSTENTION IS NOT REQUIRED.  ID., AT 378.  IN SUCH A CASE
NO SINGLE ADJUDICATION BY A STATE COURT COULD ELIMINATE THE
CONSTITUTIONAL DIFFICULITY.  RATHER IT WOULD REQUIRE "EXTENSIVE
ADJUDICATIONS, UNDER THE IMPACT OF A VARIETY OF FACTUAL SITUATIONS," TO
BRING THE CHALLENGED STATUTE OR REGULATION "WITHIN THE BOUNDS OF
PERMISSABLE CONSTITUTIONAL CERTAINTY."  IBID. 

/6/  CAL. PENAL CODE 2600 PROIDES THAT "(A) SENTENCE OF IMPRISONMENT
IN A STATE PRISON FOR ANY TERM SUSPENDS ALL THE CIVIL RIGHTS OF THE
PERSON SO SENTENCED . . .,"  AND IT ALLOWS FOR PARTIAL RESTORATION OF
THOSE RIGHTS BY THE CALIFORNIA ADULT AUTHORITY.  THE STATUTE THEN
DECLARES, IN PERTINENT PART: 

"THIS SECTION SHALL BE CONSTRUED SO AS NOT TO DEPRIVE SUCH PERSON OF
THE FOLLOWING CIVIL RIGHTS, IN ACCORDANCE WITH THE LAWS OF THIS STATE:

        .         .         .         .         . 

"(4) TO PURCHASE, RECEIVE, AND READ ANY AND ALL NEWSPAPERS,
PERIODICALS, AND BOOKS ACCEPTED FOR DISTRIBUTION BY THE UNITED STATES
POST OFFICE.  PURSUANT TO THE PROVISIONS OF THIS SECTION, PRISON
AUTHORITIES SHALL HAVE THE AUTHORITY TO EXCLUDE OBSCENE PUBLICATIONS OR
WRITINGS, AND MAIL CONTAINING INFORMATION CONCERNING WHERE, HOW OR FROM
WHOM SUCH MATTER MAY BE OBTAINED; AND ANY MATTER OF A CHARACTER TENDING
TO INCITE MURDER, ARSON, RIOT, VIOLENT RACISM, OR ANY OTHER FORM OF
VIOLENCE; AND ANY MATTER CONCERNING GAMBLING OR A LOTTERY.  . . " 

/7/  APPELLANTS ARGUE THAT THE CORRECTNESS OF THEIR ABSTENTION
ARGUMENT IS DEMONSTRATED BY THE DISTRICT COURT'S DISPOSITION OF COUNT
II OF APPELLEES' AMENDED COMPLAINT.  IN COUNT II APPELLEES CHALLENGED
THE MAIL REGULATIONS ON THE GROUND THAT THEIR APPLICATION TO
CORRESPONDENCE BETWEEN INMATES AND ATTORNEYS CONTRAVENED THE SIXTH AND
FOURTEENTH AMENDMENTS.  APPELLEES LATER DISCOVERED THAT A CASE WAS THEN
PENDING BEFORE THE SUPREME COURT OF CALIFORNIA IN WHICH THE
APPLEICATION OF THE PRISON RULES TO ATTORNEY-CLIENT MAIL WAS BEING
ATTACKED UNDER SUBSECTION (2) OF 2600, WHICH PROVIDES: 

"THIS SECTION SHALL BE CONSTRUED SO AS NOT TO DEPRIVE (AN INMATE) OF
THE FOLLOWING CIVIL RIGHTS, IN ACCORDANCE WITH THE LAWS OF THIS STATE:

        .         .         .         .         . 

"(2) TO CORRESPOND, CONFIDENTIALLY, WITH ANY MEMBER OF THE STATE
BAR, OR HOLDER OF PUBLIC OFFICE, PROVIDED THAT THE PRISON AUTHORITES
MAY OPEN AND INSPECT SUCH MAIL TO SEARCH FOR CONTRABAND." 

THE DISTRICT COURT DID STAY ITS HAND, AND THE SUBSEQUENT DECISION IN
IN RE JORDAN, 7 CAL. 3D 930, 500 P.2D 873 (1972) (HOLDING THAT 2600 (2)
BARRED CENCSORSHIP OF ATTORNEY-CLIENT CORRESPONDENCE), RENDERED COUNT
II MOOT.  THIS DISPOSITION OF THE CLAIM RELATIONG TO ATTORNEY-CLIENT
MAIL IS, HOWEVER, QUITE RELEVANT TO APPELLANT'S CONTENTION THAT THE
DISTRICT COURT SHOULD HAVE ABSTAINED FROM DECIDING WHETHER THE MAIL
REGULATIONS ARE CONSTITUTIONAL AS THEY APPLY TO PERSONAL MAIL. 
SUBSECTION (2) OF 2600 SPEAKS DIRECTLY TO THE ISSUE OF CENSORSHIP OF
ATTORNEY-CLIENT MAIL BUT SAYS NOTHING AT ALL ABOUT PERSONAL
CORRESPONDENCE, AND APPELLANTS HAVE NOT INFORMED US OF ANY CHALLENGE TO
THE CENSORSHIP OF PERSONAL MAIL PRESENTLY PENDING IN THE STATE COURTS. 

/8/  SEE NOTE, DECENCY AND FAIRNESS: AN EMERGING JUDICAL ROLE IN
PRISON REFORM, 57 VA. L. REV. 841, 842 - 844 (1971). 

/9/  THEY ALSO ILL SUITED TO ACT AS THE FRONT-LINE AGENCIES FOR THE
CONSIDERATION AND RESOULTION OF THE INFINITE VARIETY OF PRISONER
COMPLALINTS.  MOREOVER, THE CAPACITY OF OUR CRIMINAL JUSTICE SYSTEM TO
DEAL FAIRLY AND FULLY WITH LEGITIMATE CLAIMS WILL BE IMPAIRED BY A
BURGEONING INCREASE OF FRIVILOUS PRISONER COMPLAINTS.  AS ONE MEANS OF
ALLEVIATING THIS PROBLEM, THE CHEIF JUSTICE HAS SUGGESTED THAT FEDERAL
AND STATE AUTHORITIES EXPLORE THE POSSIBILITY OF INSTUTING INTERNAL
ADMINISTRATIVE PROCEDURES FOR DISPOSITION OF INMATE GRIEVANCES.  59
A.B.A.J. 1125, 1128, (1973).  AT THE THIRD CIRCUIT JUDICIAL CONFERENCE
MEETING OF OCTOBER 15, 1973, AT WHICH THE PROBLEM WAS ADDRESSED,
SUGGESTIONS ALSO INCLUDED (I) ABSTENTION WHERE APPROPRIATE TO AVOID
NEEDLESS CONSIDERATION OF FEDERAL CONSTITUTIONAL ISSUES; AND (II) THE
USE OF FEDERAL MAGISTRATES WHO COULD BE SENT INTO PENAL INSTITUTIONS TO
CONDUCT HEARINGS AND MAKE FINDINGS OF FACT.  WE EMPHASIZE THAT WE
EXPRESS NO VIEW AS TO THE MERIT OR VALIDITY OF ANY PARTICULAR PROPOSAL,
BUT WE DO THINK IT APPROPRIATE TO INDICAE THE NECESSITY OF PROMPT AND
THOUGHTFUL CONSIDERATION BY RESPONSIBLE FEDERAL AND STATE AUTHORITIES
OF THIS WORKSENING SITUATION.     /10/  SPECIFICALLY, THE DISTRICT
COURT HELD THAT THE REGULATIONS AUTHORIZED RESTRAINT OF LAWFUL
EXPRESSION IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS, THAT
THEY WERE FATALLY VAGUE, AND THAT THEY FAILED TO PROVIDE MINIMUM
PROCEDURAL SAFEGARDS AGAINST ARBITRARY OR ERRONEOUS CENSORSHIP OF
PROTECTED SPEECH.     /11/  DIFFERENT CONSIDERATIONS MAY COME INTO PLAY
IN THE CASE OF MASS MAILINGS.  NO SUCH ISSUE IS RAISED ON THESE FACTS,
AND WE INTIMATE NO VIEW AS TO ITS PROPER RESOLUTION. 

/12/  WE NEED NOT AND DO NOT ADDRESS IN THIS CASE THE VALIDITY OF A
TEMPORARY PROHIBITION OF AN INMATE'S PERSONAL CORRESPONDENCE AS A
DISCIPLINARY SANCTION (USUALLY AS PART OF THE REGIMEN OF SOLITARY
CONFINEMENT) FOR VIOLATION OF PRISON RULES. 

/13/  POLICY STATEMENT 7300.1A OF THE FEDERAL BUREAU OF PRISONS SETS
FORTH THE BUREAU'S POSITION REGARDING GENERAL CORRESPONDENCE BY THE
PRISONERS ENTRUSTED TO ITS CUSTODY.  IT AUTHORIZES ALL FEDERAL
INSTITUTIONS TO ADOPT OPEN CORRESPONDENCE REGULATIONS AND RECOGNIZES
THAT ANY NEED FOR RESTRICTIONS ARISES PRIMARILY FROM CONSIDERATIONS OF
ORDER AND SECURTIY RATHER THAN REHABILITATION: 

"CONSTRUCTIVE, WHOLESOME CONTACT WITH THE COMMUNITY IS A VALUABLE
THERAPEUTIC TOOL IN THE OVERALL CORRECTIONAL PROCESS.  AT THE SAME
TIME, BASIC CONTROLS NEED TO BE EXERCISED IN ORDER TO PROTECT THE
SECURITY OF THE INSTITUTION, INDIVIDUALS AND/OR THE COMMUNITY-AT
LARGE."  THE RECOMMENDED POLICY GUIDELINES ADOPTED BY THE ASSOCIATION
OF STATE CORRECTIONAL ADMINISTRATORS OF AUGUST 23, 1972, ECHOES THE
VIEW THAT PERSONAL CORRESPONDENCE BY PRISON INMATES IS A GENERALLY
WHOLESOME ACTIVITY:  "CORRESPONDENCE WITH MEMBERS OF AN INMATE'S
FAMILY, CLOSE FRIENDS, ASSOCIATES AND ORANIZATIONS IS BENEFICIAL TO THE
MORALE OF ALL CONFINED PERSONS AND MAY FORM THE BASIS FOR GOOD
ADJUSTMENT IN THE INSTITUTION AND THE COMMUNITY." 

/14/  WHILE NOT NECESSARILY CONTROLLING, THE POLICIES FOLLOWED AT
OTHER WELL-RUN INSTITUTIONS WOULD BE RELEVANT TO A DETERMINATION OF THE
NEED FOR A PARTICULAR TYPE OF RESTRICTION.  FOR EXAMPLE, POLICY
STATEMENT 7300.1A OF THE FEDERAL BUREAU OF PRISONS SPECIFIES THAT
PERSONAL CORRESPONDENCE OF INMATES IN FEDERAL PRISONS, WHETHER INCOMING
OR OUTGOING, MAY BE REJECTED FOR INCLUSION OF THE FOLLOWING KINDS OF
MATERIAL: 

"(1) ANY MATERIAL WHICH MIGHT VIOLATE POSTAL REGULATIONS, I.E.,
THREATS, BLACKMAIL, CONTRABAND OR WHICH INDICATE PLOTS OF ESCAPE. 

"(2) DISCUSSIONS OF CRIMINAL ACTIVITES. 

"(3) NO INMATE MAY BE PERMITTED TO DIRECT HIS BUSINESS WHILE HE IS
IN CONFINEMENT.  THIS DOES NOT GO TO THE POINT OF PROHIBITING
CORRESPONDENCE NECESSARY TO ENABLE THE INMATE TO PROTECT THE PROPERTY
AND FUNDS THAT WERE LEGITIMATELY HIS AT THE TIME HE WAS COMMITTED TO
THE INSTITUTION.  THUS, AN INMATE COULD CORRESPOND ABOUT REFINANCING A
MORTAGE ON HIS HOME OR SIGN INSURANCE PAPERS, BUT HE COULD NOT OPERATE
A MOTGAGE OR INSURANCE BUSINESS WHILE IN THE INSITUTION. 

"(4) LETTERS CONTAINING CODES OR OTHER OBIVIOUS ATTEMPTS TO
CIRCUMVENT THESE REGULATIONS WILL BE SUBJECT TO REJECTION. 

"(5) INSOFAR AS POSSIBLE, ALL LETTERS SHOULD BE WRITTEN IN ENGLISH,
BUT EVERY EFFORT SHOULD BE MADE TO ACCOMMODATE THOSE INMATES WHO ARE
UNABLE TO WRITE IN ENGLISH OR WHOSE CORRESPONDENTS WOULD BE UNABLE TO
UNDERSTAND A LETTER WRITTEN IN ENGLISH.  THE CRIMINAL SOPHISTICATION OF
THE INMATE, THE RELATIONSHIP OF THE INMATE AND THE CORRESPONDENT ARE
FACTORS TO BE CONSIDERED IN DECIDING WHETHER CORRESPONDENCE IN A
FOREIGN LANGUAGE SHOULD BE PERMITTED." 

/15/ AFTER THE DISTRICT COURT HELD THE ORIGINAL REGULATIONS
UNCONSTITUTIONAL, REVISED REGULATIONS WERE DEVOLOPED BY APPELLANTS AND
APPROVED BY THE COURT.  SUPPLEMENT TO AP. 194 - 200, 211.  ALTHOUGH
THESE REGULATIONS ARE NOT BEFORE US FOR REVIEW, THEY ARE INDICATIVE OF
ONE SOLUTION TO THE PROBLEM.  THE FOLLOWING PROVISIONS GOVERN
CENSORSHIP OF PRISONER CORRESPONDENCE:

"CORRESPONDENCE 

"A.  CRITERIA FOR DISAPPROVAL OF INMATE MAIL 

"1.  OUTGOING LETTERS 

"OUTGOING LETTERS FROM INMATES OF INSTITUTIONS NOT REQUIRING
APPROVAL OF INMATE CORRESPONDENTS MAY BE DISAPPROVED FOR MAILING ONLY
IF THE CONTENT FALLS AS A WHOLE OR IN SIGNIFICANT PART INTO ANY OF THE
FOLLOWING CATEGORIES: 

"A.  THE LETTER CONTAINS THREATS OF PHYSICAL HARM AGAINST ANY PERSON
OR THREATS OF CRIMINAL ACTIVITY. 

"B.  THE LETTER THREATENS BLACKMAIL OR EXTORTION. 

"C.  THE LETTER CONCERNS SENDING CONTRABAND IN OR OUT OF THE
INSTITUTIONS. 

"D.  THE LETTER CONCERNS PLANS TO ESCAPE. 

"E.  THE LETTER CONCERNS PLANS FOR ACTIVITIES IN VIOLATION OF
INSTITUTIONAL RULES. 

"F.  THE LETTER CONCERNS PLANS FOR CRIMINAL ACTIVITY. 

"G.  THE LETTER IS IN CODE AND ITS CONTENTS ARE NOT UNDERSTOOD BY
READER. 

"H.  THE LETTER SOLICITS GIFTS OF GOODS OR MONEY FROM OTHER THAN
FAMILY. 

"I.  THE LETTER IS OBSECNE. 

"J.  THE LETTER CONTAINS INFORMATION WHICH IF COMMUNICATED WOULD
CREATE A CLEAR AND PRESENT DANGER OF VIOLENCE AND PHYSICAL HARM TO A
HUMAN BEING.  OUTGOING LETTERS FROM INMATES OF INSTITUTIONS REQUIRING
APPROVAL OF CORRESSPONDENTS MAY BE DISAPPROVED ONLY FOR THE FOREGOING
REASONS, OR IF THE ADDRESSEE IS NOT AN APROVED CORRESPONDENT OF THE
INMATE AND SPECIAL PERMISSION FOR THE LETTER HAS NOT BEEN OBTAINED. 

"2.  INCOMING LETTERS 

"INCOMING LETTERS TO INMATES MAY BE DISAPPROVED FOR RECEIPT ONLY FOR
THE FORGOING REASONS, OR IF THE LETTER CONTAINS MATERIAL WHICH WOULD
CAUSE SEVERE PSYCHIATRIC OR EMOTIONAL DISTURBANCE TO THE INMATE, OR IN
AN INSTITUTION REQUIRING APPROVAL OF INMATE CORRESPONDENTS, IS FROM A
PERSON WHO IS NOT AN APPROVED CORRESPONDENT AND SPECIAL PERMISSION FOR
THE LETTER HAS NOT BEEN OBTAINED. 

"3.  LIMITATIONS 

"DISAPPROVAL OF A LETTER ON THE BASIS THAT IT WOULD CAUSE SEVERE
PSYCHIATRIC OR EMOTIONAL DISTURBANCE TO THE INMATE MAY BE DONE ONLY BY
A MEMBER OF THE INSTITUTION'S PSYCHIATRIC STAFF AFTER CONSULTATION WITH
THE INMATE'S CASEWORKER.  THE STAFF MEMBER MAY DISAPPROVE THE LETTER
ONLY UPON A FINDING THAT RECEIPT OF THE LETTER WOULD BE LIKELY TO
AFFECT PRISON DISCIPLINE OR SECURITY OR THE INMATE'S REHABILITATION,
AND THAT THERE IS NO REASONABLE ALTERNATIVE MEANS OF AMELIORATING THE
DISTURBANCE OF THE INMATE.  OUTGOING OR INCOMING LETTERS MAY NOT BE
REJECTED SOLELY UPON THE GROUND THAT THEY CONTAIN CRITICISM OF THE
INSTITUTION OR ITS PERSONNEL. 

"4.  NOTICE OF DISAPPROVAL OF INMATE MAIL 

"A. WHEN AN INMATE IS PROHIBITED FROM SENDING A LETTER, THE LETTER
AND A WRITTEN AND SIGNED NOTICE STATING ONE OF THE AUTHORIZED REASONS
FOR DISAPPROVAL AND INDICATING THE PORTION OR PORTIONS OF THE LETTER
CAUSING DISAPPROVAL WILL BE GIVEN THE INMATE. 

"B. WHEN AN INMATE IS PROHIBITED FROM RECEIVING A LETTER, THE LETTER
AND A WRITTEN AND SIGNED NOTICE STATING ONE OF THE AUTHORIZED REASONS
FOR DISAPPROVAL AND INDICATIN THE PORTION OR PORTIONS OF THE LETTER
CAUSING DISAPPROVAL WILL BE GIVEN THE SENDER.  THE INAMTE WILL BE GIVEN
NOTICE IN WRITING THAT A LETTER HAS BEEN REJECTED, INDICATING ONE OF
THE AUTHORIZED REASONS AND THE SENDER'S NAME. 

"C. MATERIAL FROM CORRESPONDENCE WHICH VIOLATES THE PROVISIONS OF
PARAGRAPH ONE MAY BE PLACED IN AN INMATE'S FILE.  OTHER MATERIAL FROM
CORRESPONDENCE MAY NOT BE PLACED IN AN INMATE'S FILE UNLESS IT HAS BEEN
LAWFULLY OBSERVED BY AN EMPLOYEE OF THE DEPARTMENT AND IS RELEVANT TO
ASSESSMENT OF THE INAMTE'S REHABILITATION.  HOWEVER, SUCH MATERIAL
WHICH IS NOT IN VIOLATION OF THE PROVISIONS OF PARAGRAPH ONE MAY NOT BE
THE SUBJECT OF DISCIPLINARY PROCEEDINGS AGAINST AN INMATE.  AN INMATE
SHALL BE NOTIFIED IN WRITING OF THE PLACING OF ANY MATERIAL FROM
CORRESPONDENCE IN HIS FILE. 

"D. ADMINISTRATIVE REVIEW OF INMATE GRIEVANCES REGARDING THE
APPLICATION OF THIS RULE MAY BE HAD IN ACCORDANCE WITH PARAGRAPH DP
1003 OF THESE RULES." 

/16/  APPARENTLY, THE DEPARTMENT'S POLICY REGARDING LAW SCHOOL
PROGRAMS PROVIDING LEGAL ASSISTANCE TO INMATES, THOUGH WELL
ESTABLISHED, IS NOT EMBODIED IN ANY REGULATION.  MR. JUSTICE MARSHALL,
WITH WHOM MR. JUSTUCE BRENNAN JOINS, CONCURRING. 

I 

I CONCUR IN THE OPINION AND JUDGMENT OF THE COURT.  I WRITE SEPARATE
ONLY TO EMPHASIZE MY VIEW THAT PRISON AUTHORITIES DO NOT HAVE A GENERAL
RIGHT TO OPEN AND READ ALL INCOMING AND OUTGOING PRISONER MAIL. 
ALTHOUGH THE ISSUE OF THE FIRST AMENDMENT RIGHTS OF INMATES IS
EXPLCITLY RESERVED BY THE COURT, I WOULD REACH THAT ISSUE AND HOLD THAT
PRISON AUTHORITIES MAY NOT READ INMATE MAIL AS A MATTER OF COURSE. 

        II 

AS MR. JUSTICE HOLMES OBSERVED OVER A HALF CENTURY AGO, "THE USE OF
THE MAILS IS ALMOST AS MUCH A PART OF FREE SPEECH AS THE RIGHT TO USE
OUR TONGUES.  . . ."  MILWAUKEE SOCIAL DEMOCRATIC PUBLISHING CO. V.
BURLESON, 255 U.S. 407, 437 (1921) (DISSENTING OPINION), QUOTED WITH
APPROVAL IN BLOUNT V. RIZZI, 400 U.S. 410, 416 (1971) SEE ALSO LAMONT
V. POSTMASTER GENERAL, 381 U.S. 301, 305 (1965).  A PRISONER DOES NOT
SHED SUCH BASIC FIRST AMENDMENT RIGHTS AT THE PRISON GATE.  /1/
RATHER, HE "RETINS ALL THE RIGHTS OF AN ORDINARY CITIZEN EXCEPT THOSE
EXPRESSLY, OR BY NECESSARY IMPLICATION, TAKEN FROM HIM BY LAW."  COFFIN
V. REICHARD, 143 F.2D 443, 445 (CA6 1944) /2/  ACCORDINGLY, PRISONERS
ARE, IN MY VIEW, ENTITLED TO USE THE MAILS AS A MEDIUM OF FREE
EXPRESSION NOT AS A PRIVILEGE, BUT RATHER AS A CONSTITUTIONALLY
GUARANTEED RIGHT.  /3/ 

IT SEEMS CLEAR THAT THIS FREEDOM MAY BE BE SERIOUSLY INFRINGED BY
PERMITTING CORRECTIONAL AUTHORITIES TO READ ALL PRISONER
CORRESPONDENCE.  A PRISONER'S FREE AND OPEN EXPRESSION WILL SURELY BE
RESTRAINED BY THE KNOWLEDGE THAT HIS EVERY WORD MAY BE READ BY HIS
JAILORS AND THAT HIS MESSAGE COULD WELL FIND ITS WAY INTO A
DISCIPLINARY FILE, BE THE OBJECT OF RIDICULE, OR EVEN LEAD TO
REPRISALS.  A SIMILAR PALL MAY BE CASE OVER THE FREE EXPRESSION OF THE
INMATES' CORRESPONDENTS.  CF. TALLEY V. CALIFORNIA, 362 U.S. 60, 65
(1960); NAACP V. ALABAMA, 357 U.S. 449, 462 (1958).  SUCH AN INTRUSION
ON FIRST AMENDMENT FREEDOMS CAN ONLY BE JUSTIFIED BY A SUBSTANTIAL
GOVERNMENT INTEREST AND A SHOWING THAT THE MEANS CHOSEN TO EFFECTUATE
THE STATE'S PURPOSE ARE NOT UNNECESSARILY RESTRICTIVE OF PERSONAL
FREEDOMS. 

"(EVEN THOUGH THE GOVERNMENTAL PURPOSE BE LEGITIMATE AND
SUBSTANTIAL, THAT PURPOSE CANNOT BE PURSUED BY MEANS THAT BROADLY
STIFLE FUNDMANTAL PERSONAL LIBERTIES WHEN THE END CAN BE MORE D
NARROWLY ACHIEVED." 

  ##HC424 D  SHELTON V. TUCKER, 364 U.S. 479 D  488 (1960).  /4/ 

THE FIRST AMENDMENT MUST IN EACH CONTEXT "BE APPLIED 'IN LIGHT OF
THE SPECIAL CHARACTERISTICS OF THE . . . ENVIRONMENT,'" HEALY V. JAMES,
408 U.S. 169, 180 (1972), AND THE EXIGENCIES OF GOVERNING PERSONS ARE
DIFFERENT FROM AND GREATER THAN THOSE IN GOVERNMENING PERSONS WITHOUT. 
BARNETT V. RODGERS, 133 U.S. APP. D.C. 296, 301 - 302, 410 F.2D 995,
1000 - 1001 (1969); ROWLAND V. SIGLER, 327 F. SUPP. 821, 827 (NEB.),
AFF'D, 452 F.2D 1005 (CA8 1971).  THE STATE HAS LEGITIMATE AND
SUBSTANTIAL CONCERNS AS TO SECURITY, PRSONAL SAFETY, INSTITUTIONAL
DISCIPLINE, AND PRISONER REHABILITATION NOT APPLICABLE TO THE COMMUNITY
AT LARGE.  BUT THESE CONSIDERATIONS DO NOT ELIMINATE THE NEED FOR
REASONS IMPERATIVELY JUSTIFYING THE PARTICULAR DEPRIVATION OF
FUNDAMENTAL CONSTITUTIONAL RIGHTS AT ISSUE.  CF. HEALY V. JAMES, SUPRA,
AT 180; TINKER V. DES MONIES SCHOOL DISTRICT, 393 U.S. 503, 506
(1969). 

THE STATE ASSERTS A NUMBER OF JUSTIFICIATIONS FOR A GENERAL RIGHT TO
READ ALL PRISONER CORRESPONDENCE.  THE STATE ARGUES THAT CONTRABAND
WEAPONS OR NARCOTICS MAY BE SMUGGLED INTO THE PRISON VIA THE MAIL, AND
CERTAINLY THIS IS A LEGITIMATE CONCERN OF PRISON AUTHORITIES.  BUT THIS
ARGUMENT PROVIDES NO JUSTIFICATION FOR READING OUTGOING MAIL.  EVEN AS
TO INCOMING MAIL, THERE IS NO SHOWING THAT STEMMING THE TRAFFIC IN
CONTRABAND COULD NOT BE ACCOMPLISHED EQUALLY WELL BY MEANS OF PHYSICAL
TESTS SUCH AS FLUOROSCOPING LETTERS.  /5/  IF PHYSICAL TESTS WERE
INADEQUATE, MERELY OPENING AND INSPECTING--AND NOT READING--INCOMING
MAIL WOULD CLEARLY SUFFICE.  /6/ 

IT IS ALSO SUGGESTED THAT PRISON AUTHORITIES MUST READ ALL PRISON
MAIL IN ORDER TO DETECT ESCAPE PLANS.  THE STATE SURELY COULD NOT
JUSTIFY READING EVERYONE'S MAIL AND LISTENING TO ALL PHONE
CONVERSATIONS ON THE OFF CHANCE THAT CRIMINAL SCHEMES WERE BEING
CONCOCTED.  SIMILARLY, THE READING OF ALL PRISONER MAIL IS TOO GREAT AN
INTRUSION ON FIRST AMENDMENT RIGHTS TO BE JUSTIFIED BY SUCH A
SPECULATIVE CONCERN.  THERE HAS BEEN NO SHOWING AS TO THE SERIOUSNESS
OF THE PROBLEM OF ESCAPES PLANNED OR ARRANGED VIA THE MAIL.  INDEED,
THE STATE'S CLAIM OF CONCERN OVER THIS PROBLEM IS UNDERMINED BY THE
GENERAL PRACTICE OF PERMITTING UNMONITORED PERSONAL INTERVIEWS DURING
WHICH ANY NUMBER OF SURREPITIOUS PLANS MIGHT BE DISCUSSED UNDETECTED. 
/7/  WHEN PRISON AUTHORITIES HAVE REASON TO BELIEVE THAT AN ESCAPE PLOT
IS BEING HATCHED BY A PARTICULAUR INMATE THROUGH HIS CORRESPONDENCE,
THEY MAY WELL HAVE AN ADEQUATE BASIS TO SEIZE THAT INMATE'S LETTERS;
BUT THERE IS NO SUCH JUSTIFICATION FOR A BLANKET POLICY OF READING ALL
PRISON MAIL. 

IT IS ALSO OCCASIONALLY ASSERTED THAT READING PRISONER MAIL IS A
USEFUL TOOL IN THE REHABILITATIVE PROCESS.  THE THERAPEUTIC MODEL OF
CORRECTIONS HAS COME UNDER INCREASING CRITICISM AND IN MOST PENAL
INSTITUTIONS REHABILITATIVE PROGRAMS ARE MORE IDEAL THAN REALITY.  /8/
ASSUMING THE VALIDITY OF THE REHABILITATIVE MODE, HOWEVER, THE STATE
DOES NOT DEMONSTRATE THAT THE READING OF INMATE MAIL, WITH ITS
ATTENDANT CHILLING EFFECT ON FREE EXPRESSION, SERVES ANY VALID
REHABILITATIVE PRUPOSES.  PRISON WALLS SERVE NOT MERELY TO RESTRAIN
OFFENDERS BUT ALSO TO ISOLATE THEM.  THE MAILS PROVIDE ONE OF THE FEW
TIES INMATES RETAIN TO THEIR COMMUNITIES OR FAMILIES--TIES ESSENTIAL TO
THE SUCCESS OF THEIR LATER RETURN TO THE OUTSIDE WORLD"  /9/  JUDGE
KAUFMAN, WRITING FOR THE SEOND CIRCUIT, FOUND TWO OBSERVATION
PARTICULARLY APROPOS TO SIMILAR CLAIMS OF REHABILITATIVE BENEFIT IN
SOSTRE V. MCGINNIS, 442 F.2D 178, 199 (1971) (EN BANC):     "'LETTER
WRITING KEEPS THE INMATE IN CONTACT WITH THE D  OUTSIDE WORLD, HELPS TO
HOLD IN CHECK SOME OF THE D  MORBIDITY AND HOPELESSNESS PRODUCED BY
PRISON LIFE D  AND ISOLATION, STIMULATES HIS MORE NATURAL AND HUMAN D
IMPULSES, AND OTHERWISE MAY MAKE CONTRIBUTIONS TO D  BETTER MENTAL
ATTITUDES AND REFORMATION.'"  /10/  AND 

"THE HARM CENSORSHIP DOES TO REHABILITATION . . . CANNOT BE
GAINSAID.  INMATES LOSE CONTACT WITH THE OUTSIDE WORLD AND BECOME WARY
OF PLACING INITMATE THOUGHTS OR CRITICISMS OF THE PRISON IN LETTERS. 
THIS ARTIFICIAL INCREASE OF ALIENATION FROM SOCIETY IS ILL ADVISED.'" 
/11/ THE COURT TODAY AGREES THAT "THE WEIGHT OF PROFESSIONAL OPINION
SEEMS TO BE THAT INMATE FREEDOM TO CORRESPOND WITH OUTSIDERS ADVANCES
RATHER THAN RETARDS THE GOAL OF REHABILITATION."  ANTE, AT 412.  /12/ 

BALANCED AGAINST THE STATE'S ASSERTED INTERESTS ARE THE VALUES THAT
ARE GENERALLY ASSOCIATED WITH FREEDOM OF SPEECH IN A FREE SOCIETY-
VALUES WHICH "DO NOT TURN TO DROSS IN AN UNFREE ONE."  SOSTRE V.
MCGINNIS, SUPRA, AT 199.  FIRST AMENDMENT GUARANTEES PROTECT THE FREE
AND UNITERRUPTED INTERCHANGE OF IDEAS UPON WHICH A DEMOCRATIC SOCIETY
THRIVES.  PERHAPS THE MOST OBVIOUS VICTIM OF THE INDIRECT CENSORSHIP
EFFECTED BY A POLICY OF ALLOWING PRISON AUTHORITIES TO READ INMATE MAIL
IS CRITICISM OF PRISON ADMINISTRATION.  THE THREAT OF IDENTIFICATION
AND REPRISAL INHERENT IN ALLOWING CORRESTIONAL AUTHORITIES TO READ
PRISONER MAIL IS NOT LOST ON INMATES WHO MIGHT OTHERWISE CRITICIZE
THEIR JALORS.  THE MAILS ARE ONE OF THE FEW VEHICLES PRISONERS HAVE FOR
INFORMING THE COMMUNITY ABOUT THEIR EXISTENCE AND, IN THESE DAYS OF
STRIFE IN OUR CORRECTIONAL INSTITUTIONS, THE PLIGHT OF PRISONERS IS A
MATTER OF URGENT PUBLIC CONCERN.  TO SUSTAIN A POLICY WHICH CHILLS THE
COMMUNICATION NECESSARY TO INFORM THE PUBLIC ON THIS ISSUE IS AT ODDS
WITH THE MOST BASIC TENETS OF THE GUARANTEE OF FREEDOM OF SPEECH. 
/13/ 

THE FIRST AMENDMENT SERVES NOT ONLY THE NEEDS OF THE POLITY BUT ALSO
THOSE OF THE HUMAN SPIRIT--A SPIRIT THAT DEMANDS SELF-EXPRESSION.  SUCH
EXPRESSION IS AN INTEGRAL PART OF THE DEVELOPMENT OF IDEAS AND A SENSE
OF IDENTITY.  TO SUPPRESS EXPRESSION IS TO REJECT THE BASIC HUMAN
DESIRE FOR RECOGNITION AND AFFRONT THE INDIVIDUAL'S WORTH AND DIGNITY. 
/14/  CF. STANTLEY V. GEORGIA, 394 U.S. 557 (1969).  SUCH RESTRAINT MAY
BE "THE GREATEST DISPLEASURE AND INDIGNITY TO A FREE AND KNOWING SPIRIT
THAT CAN BE PUT UPON HIM."  J. MILTON, AEROPAGITICA 21 (EVERYMAN'S ED.
1927).  WHEN THE PRISON GATES SLAM BEHIND AN INMATE, HE DOES NOT LOSE
HIS HUMAN QUALITY; HIS MIND DOES NOT BECOME CLOSED TO IDEAS; HIS
INTELLECT DOES NOT CEASE TO FEED ON A FREE AND OPEN INTERCHANGE OF
OPINIONS; HIS YEARNING FOR SELF-RESPECT DOES NOT END; NOR IS HIS QUEST
FOR SELF-REALIZATION CONCLUDED.  IF ANYTHING, THE NEEDS FOR IDENTITY
AND SELF RESPECT ARE MORE COMPELLING IN THE DEHUMANIZING PRISON
ENVIRONMENT.  WHETHER AN O. HENRY AUTHORING HIS SHORT STORIES IN A JAIL
CELL OR A FIRGHTENED YOUND INMATE WRITING HIS FAMILY, A PRISONER NEEDS
A MEDIUM FOR SELF-EXPRESSION.  IT IS THE ROLE OF THE FIRST AMENDMENT
AND THIS COURT TO PROTECT THOSE PRECIOUS PERSONAL RIGHTS BY WHICH WE
SATISFY SUCH BASIC YEARNING OF THE HUMAN SPIRIT. 

/1/  SEE, E.G., CRUZ V. BETO, 405 U.S. 319 (1972); COOPER V. PATE,
378 U.S. 546 (1964); BROWN V. PEYTON, 437 F.2D 1228, 1230 (CA4 1971);
ROWLAND V. SIGLER, 327 F. SUPP. 821, 827 (NEB. 1971), AFF'D, 452 F.2D
1005 (CA8 1971); FORTUNE SOCIETY V. MCGINNIS, 319 F. SUPP. 901, 903
(SDNY 1970). 

/2/  ACCORD, MOORE V. CICCONE, 459 F.2D 574, 576 (CA8 1972); NOLAN
V. FITZPATRICK, 451 F.2D 545, 547 (CA1 1971); BRENNEMAN V. MADIGAN, 343
F. SUPP. 128, 131 (ND CAL. 1972); BURNHAM V. OSWALD, 342 F. SUPP. 880,
884 (WDNY 1972); CAROTHERS V. FOLLETTE, 314 F. SUPP. 1014, 1023 (SDNY
1970). 

/3/  SEE, E.G., SOSTRE V. MCGINNIS, 442 F.2D 178, 199 (CA2 1971) (EN
BANC); PRESTON V. THIESZEN, 341 F. SUPP. 785, 786 - 787 (WD WIS. 1972);
CF. GRAY V. CREAMER, 465 F.2D 179, 186 (CA3 1972); MORALES V. SCHMIDT,
340 F. SUPP. 544 (WD WIS. 1972); PALMIGIANO V. TRAVISONO, 317 F. SUPP.
776 (RI 1970); CAROTHERS V. FOLLETTE, SUPRA. 

/4/  THE TEST I WOULD APPLY IS THUS ESSENTIALLY THE SAME AS THE TEST
APPLIED BY THE COURT:  "(THE REGUALTION . . . IN QUESTION MUST FURTHER
AN IMPORTANT OR SUBSTANTIAL GOVERNMENTAL INTEREST UNRELATED TO THE
SUPPRESSION OF EXPRESSION . . . (AND) THE LIMITATION OF FIRST AMENDMENT
FREEDOMS MUST BE NO GREATER THAN IS NECESSARY OR ESSENTIAL TO THE
PROTECTION OF THE PARTICULAR GOVERNMENT INTEREST INVOLVED."  ANTE, AT
413. 

/5/  SEE MARSH V. MOORE, 325 F. SUPP. 392, 395 (MASS. 1971).  6 /6/
SEE MOORE CICCONE, 459 F.2D, AT 578 (LAY, J., CONCURRING); CF JONES V.
WITTENBERG, 330 F. SUPP. 707, 719 (ND OHIP 1971), AFF'D SUB NOM. JONES
V. METZGER, 456 F.2D 854 (CA6 1972). 

/7/  PALMIGIANO V. TRAVISONO, 317 F. SUPP. 776 (RI 1970). 

/8/  SEE GENERALLY J. MITFORD, KIND AND USUAL PUNISHMENT: THE PRISON
BUSINESS (1973). 

/9/  SEE, E., NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE
STANDARDS AND GOALS, CORRECTIONS 67 - 68 (1973). 

/10/  SEE PALMIGIANO V. TRAVISONO, SUPRA, AT 791. 

SINGER, CENSORSHIP OF PRISONERS' MAIL AND THE CONSTITUTION, 56
A.B.A.J. 1051, 1054 (1970). 

/12/  VARIOUS STUDIES HAVE STONGLY RECOMMENDED THAT CORRECTIONAL
AUTHORITIES HAVE THE RIGHT TO INSPECT MAIL FOR CONTRABAND BUT NOT TO
READ IT.  NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS
AND GOALS, CORRECTIONS, STANDARD 2.17, PP. 66 - 69 (1973); SEE
CALIFORNIA BOARD OF CORRECTIONS, CALIFORNIA CORRECTIONAL SYSTEM STUDY:
INSTITUTIONS 40 (1971); CENTER FOR CRIMINAL JUDTICE, BOSTON UNIVERSITY
LAW SCHOOL, MODEL RULES AND REGUALTIONS ON PRISONERS'  RIGHTS AND
RESPONSIBILITIES, STANDARDS IC-1 AND IC-2, PP. 46 - 47 (1973). 

/13/  SEE, E.G., NOLAN V. FITZPATRICK, 451 F.2D, AT 547 - 548. 

/14/  EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT, 72
YALE L. J. 877, 879 - 880 (1963). 

  ##DOP 

MR. JUSTICE DOUGLAS JOINS IN PART II OF THIS OPINION 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN THE JUDGMENT. 

I HAVE JOINED PART II OF MR. JUSTICE MARSHALL'S OPINION BECAUSE I
THINK IT MAKES ABUNDANTLY CLEAR THAT FOREMOST AMONG THE BILL OF RIGHTS
OR PRISONERS IN THIS COUNTRY, WHETHER UNDER STATE OR FEDERAL DETENTION,
IS THE FIRST AMENDMENT.  PRISONERS ARE STILL "PERSONS" ENTITLED TO ALL
CONSTITUTIONAL RIGHTS UNLESS THEIR LIBERTY HAS BEEN CONSTITUTIONALLY
CURTAILED BY PROCEDURES THAT SATISFY ALL OF THE REQUIREMENTS OF DUE
PROCESS. 

WHILE MR. CHIEF JUSTICE HUGHES IN STROMBERG V. CALIFORNIA, 283 U.S.
359, STATED THAT THE FIRST AMENDMENT WAS APPLICABLE TO THE STATES BY
REASON OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH, IT HAS BECOME
CUSTOMARY TO REST ON THE BROADER FOUNDATION OF THE ENTIRE FOURTEENTH
AMENDMENT.  FREE SPEECH AND PRESS WITHIN THE MEANING OF THE FIRST
AMENDMENT IS, IN MY JUDGMENT, ONE OF THE PRE-EMINENT PRIVILEGES AND
IMMUNITIES OF ALL CITIZENS. 

W. ERIC COLLINS, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE EVELLE J. YOUNGER,
ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF ASSISTANT ATTORNEY
GENERAL, DORSI H. MAIER, ASSISTANT ATTORNEY GENRAL, AND ROBERT R.
GRANUCCI AND THOMAS A. BRADY, DEPUTY ATTORNEYS GENERAL. 

WILLIAM BENNETT TURNER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON
THE BRIEF WERE MARIO OBLEDO, SANFORD JAY ROSEN, ANTHONY G. AMSTERDAM,
JACK GREENBERG, JAMES M. NABRIT III, STANDLEY A. BASS, LOWELL JOHNSTON,
AND ALICE DANIEL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY WILLIAM R.
FRY FOR THE NATIONAL PARALEGAL INSTITUTE, AND BY SHELDON KRANTZ AND
STEPHEN JOEL TRACHTENBERG FOR THE CENTER FOR CRIMINAL JUSTICE, BOSTON
UNIVERSITY SCHOOL OF LAW. 
..END :





GOODING V. UNITED STATES, 416 U.S. 430 


       GOODING V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 72 - 6902.  ARGUED FEBRUARY 25, 1974--DECIDED APRIL 29,

           1974; (155 U.S. APP. D.C. 259, 477 F.2D 428, AFFIRMED.) 


    PETITIONER, CHARGED WITH ILLEGAL POSSESSION OF DRUGS, MADE A

  MOTION TO SUPPRESS THE PHYSICAL EVIDENCE SEIZED IN PETITIONER'S

  APARTMENT ON FEBRUARY 12, 1971, AT 9:30 P.M. BY DISTRICT OF

  COLUMBIA POLICE OFFICERS PURSUANT TO A MAGISTRATE'S SEARCH

  WARRANT.  ALTHOUGH NO PROVISIONS OF THE D.C. CODE WERE EXPLICITLY

  REFERRED TO, PETITIONER APPARENTLY CONTENDED, INTER ALIA, THAT

  THE WARRANT WAS EXECUTED IN THE NIGHTTIME IN VIOLATION OF D.C.

  CODE 23 - 521 ET SEQ., WHICH SPECIFICALLY REQUIRES THAT SEARCH

  WARRANTS BE SERVED IN THE DAYTIME UNLESS CERTAIN STATUTORY

CONDITIONS ARE MET, NONE OF WHICH WAS SATISFIED HERE.  THE

DISTRICT COURT GRANTED PETITIONER'S MOTION, REJECTING THE

  GOVERNMENT'S CONTENTION THAT THE WARRANT WAS ISSUED UNDER 21

  U.S.C. 879(A), WHICH RELATES ONLY TO SEARCHES FOR "CONTROLLED

  SUBSTANCES" AND PROVIDES THAT A WARRANT MAY BE SERVED "AT ANY

  TIME OF THE DAY OR NIGHT" AS LONG AS THE ISSUING AUTHORITY IS

  SATISFIED THAT PROBABLE CAUSE EXISTS TO BELIEVE THAT THERE ARE

  GROUNDS FOR THE WARRANT "AND FOR ITS SERVICE AT SUCH TIME."  THE

  COURT OF APPEALS REVERSED ON THE GROUND THAT 21 U.S.C. 879(A) WAS

  THE APPLICABLE STATUTE AND THAT ITS TERMS HAD BEEN SATISFIED. 

  HELD: 

     1.  TITLE 21 U.S.C. 879(A), WHICH IS PART OF A COMPREHENSIVE

  FEDERAL SCHEME FOR THE CONTROL OF DRUG ABUSE, APPLIES TO THIS

  CASE.  PP. 446 - 454. 

     (A) THE STANDARDS FOR ISSUANCE OF THE WARRANT SHOULD BE

  GOVERNED BY NATIONWIDE FEDERAL LEGISLATION RATHER THAN BY LOCAL

 D.C. LAWS.  AN ASSISTANT UNITED STATES ATTORNEY FILED THE

  APPLICATION FOR THE WARRANT WITH A FEDERAL MAGISTRATE, ALLEGING

  VIOLATIONS OF THE UNITED STATES CODE FOR WHICH PETITIONER WAS

  INDICTED.  P. 447. 

     (B) THOUGH THE AFFIANT OFFICER AND THE OFFICERS EXECUTING THE

  WARRANT WERE D.C. POLICE, RATHER THAN FEDERAL OFFICERS, AND THE

LEGISLATIVE HISTORY OF 879(A) STRESSED FEDERAL ENFORCEMENT,

  CONGRESS MANIFESTED NO PURPOSE TO DISPENSE WITH THE AID OF OTHER

  ENFORCEMENT PERSONNEL IN DEALING WITH THE NARCOTICS PROBLEM.  PP.

  447 - 450. 

     (C) IF PETITIONER'S CONTENTION WERE TO PREVAIL, THE GENERAL

  SEARCH WARRANT STATUTE APPLICABLE TO THE DISTRICT OF COLUMBIA

  WOULD GOVERN D.C. POLICE OFFICERS WHEN INVESTIGATING FEDERAL DRUG

VIOALTIONS BUT NOT OTHER FEDERAL CRIMES, DESPITE THE FACT THAT

  D.C. POLICE OFFICERS HISTORICALLY PLAYED A PREMINENT ROLE IN

  FEDERAL DRUG ENFORCEMENT UNDER 18 U.S.C. 1405 (1964 ED.), THE

  PREDECESSOR STATUTE OF 21 U.S.C. 879(A).  PP. 450 - 454. 

     2.  TITLE 21 U.S.C. 879(A), AS WAS TRUE OF ITS PREDECESSOR

  STATUTE, REQUIRES NO SPECIAL SHOWING FOR A NIGHTTIME SEARCH,

  OTHER THAN A SHOWING, SUCH AS WAS MADE HERE, THAT THE CONTRABAND

  IS LIKELY TO BE ON THE PROPERTY OR PERSON TO BE SEARCHED AT THAT

  TIME.  PP. 454 - 458. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ.,

  JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH

  BRENNAN AND MARSHALL, JJ., JOINED, POST, P. 459.  MARSHALL, J.,

  FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN, JJ.,

  JOINED POST, P. 461. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

PETITIONER IN THIS CASE PRESENTS A CLAIM THAT EVIDENCE OFFERED
AGAINST HIM AT HIS TRIAL SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS
SEIZED AT NIGHTTIME IN VIOLATION OF GOVERNING STATUTORY PROVISIONS. 
THE SEARCH WHICH LED TO THE SEIZURE WAS CONDUCTED BY OFFICERS OF THE
DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT AT APPROXIMATELY
9:30 P.M. WITHIN THE DISTRICT OF COLUMBIA.  ARMED WITH A SEARCH
WARRANT, THE OFFICERS ENTERED PETITIONER'S APARTMENT FOR THE PURPOSE OF
DISCOVERING VIOLATIONS OF FEDERAL NARCOTICS STATUTE, AND SEIZED A
SUBSTANTIAL AMOUNT OF CONTRABAND NARCOTICS.  THE PARTIES URGE UPON US
DIFFERING THEORIES CONCERNING WHICH FEDERAL OR DISTRICT OF COLUMBIA
STATUTE BEARS ON THE LEGALITY OF THIS SEARCH, AND WE MUST THEREFORE
INTERPRET AND RECONCILE SEVERAL RECENT CONGRESSIONAL ENACTMENTS DEALING
WITH NIGHTTIME SEARCHES WHICH SEEM TO EMBODY SOMEWHAT INCONSISTENT
VIEWS.  /1/ 

THE COURT OF APPEALS AGREED WITH THE DISTRICT COURT'S DESCRIPTION OF
THIS CONGERIES OF STATUTES AS A "BRAMBLEBUSH OF UNCERTAINTIES AND
CONTRADICTIONS,'"  /2/  AND A MERE SUMMARY OF THE STATUTES ATTESTS TO
THE ACCURACY OF THAT OBSERVATION: 

DISTRICT OF COLUMBIA STATUES: THE OLDER OF THE TWO CONCEIVABLY
RELEVANT DISTRICT OF COLUMBIA STATUTES, D.C. CODE 33 - 414 (1973), /3/
WAS ENACTED IN 1956 AND AUTHORIZES SEARCH WARRANTS FOR VIOLATIONS OF
THE DISTRICT OF COLUMBIA NARCOTICS LAWS.  THIS SECTION DOES NOT LIMIT
THE TIME DURING WHICH SEARCHES MAY BE MADE, STATING PLAINLY THAT "(THE
JUDGE OR COMMISSIONER SHALL INSERT AT ANY TIME IN THE DAY OR NIGHT." 
THIS LIBERAL TIME PROVISION IS IN DIRECT CONTRAST TO THE MORE
RESTRICTIVE PROVISIONS OF THE SECOND DISTRICT OF COLUMBIA STATUTE TO BE
CONISDERED, D.C. CODE 23 - 521 ET SEQ., /4/  WHICH SPECIFICALLY
REQUIRES THAT SEARCH WARRANTS BE SERVED IN THE DAYTIME UNLESS CERTAIN
CONDITIONS SET FORTH IN 23 - 522(C)(1) ARE MET.  THESE CONDITIONS
ESSENTIALLY REQUIRE A SHOWING OF SPECIAL NEED TO SEARCH AT NIGHT, AND
CONCEDEDLY HAVE NOT BEEN SATISFIED IN THIS CASE. 

FEDERAL STATUTES AND RULES: THE GENERAL PROVISION GOVERNING FEDERAL
SEARCH WARRANTS IS FOUND IN FED. RULE CRIM. PROC. 41.  /5/  AT THE TIME
THE SEARCH IN THIS CASE TOOK PLACE, RULE 41(C) PROVIDED THAT WARRANTS
MUST BE SERVED IN THE DAYTIME EXCEPT WHERE "THE AFFIDAVITS ARE POSITIVE
THAT THE PROPERTY IS ON THE PERSON OR IN THE PLACE TO BE SEARCHED." 
/6/  IN SUCH EVENT THE WARRANT COULD DIRECT "THAT IT BE SERVED AT ANY
TIME."  THIS PROVISION WAS INCORPORATED IN THE RULES IN 1948 AS A
REPLACEMENT FOR LANGUAGE PREVIOUSLY CONTAINED IN THE ESPIONAGE ACT OF
1917.  /7/  A SECOND FEDERAL STATUTE RELATING ONLY TO SEARCHES FOR
"CONTROLLED SUBSTANCES" IS FOUND IN 21 U.S.C. 879(A), /8/  WHICH WAS
ENACTED IN 1970.  THAT SECTION PROVIDES THAT A WARRANT MAY BE SERVED
"AT ANY TIME OF THE DAY OR NIGHT" SO LONG AS THE ISSUING AUTHORITY "IS
SATISFIED THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT GROUNDS EXIST
FOR THE WARRANT AND FOR ITS SERVICE AT SUCH TIME."  THIS PROVISION IN
TURN IS THE SUCCESSOR TO A PROVISION IN 18 U.S.C. 1405 /5/  (1964 ED.),
ENACTED IN 1956 TO RELAX THE "POSITIVITY" TEST OF RULE 41 IN CASES
INVOLVING CERTAIN NARCOTIC DRUGS.  /10/  CONGRESS HAD PASSED THIS
STATUTE IN RESPONSE TO THE COMPLAINTS OF LAW ENFORCEMENT OFFICERS THAT
THE POSITIVITY REQUIREMENT GAVE COMMERCIAL NARCOTICS DEALERS A DEFINITE
ADVANTAGE OVER FEDERAL AGENTS.  RULE 41 IS THEREFORE NOT APPLICABLE TO
SEARCHES GOVERNED BY THE MORE SPECIFIC NARCOTIC SEARCH STATUTES.  /11/ 

THE FACTS OF THIS CASE MUST BE UNDERSTOOD IN THE CONTEXT OF THESE
STATUTES.  ON FEBRUARY 11, 1971, AN ASSISTANT UNITED STATES ATTORNEY
APPLIED TO A UNITED STATES MAGISTRATE SITTING IN THE DISTRICT OF
COLUMIBA FOR A WARRANT AUTHORIZING A SEARCH OF PETITIONER'S APARTMENT
FOR EVIDENCE OF ILLEGAL NARCOTICS.  THE APPLICATION INCLUDED THE BRIEF
NOTATION: "VIOLATION: U.S.C.; TITLE 26.  SECTIONS: 4704A."  IN
CONNECTION WITH THE APPLCIATION, AN OFFICER OF THE METROPOLITAN POLICE
DEPARTMENT VICE SQUAD APPEARED BEFORE THE MAGISTRATE AND SWORE THAT HE
HAD REASON TO BELIEVE PETITIONER WAS CONCEALING PROPERTY HELD IN
VIOLATION OF THAT SAME CODE PROVISION.  /12/  THE OFFICER SUPPLEMENTED
HIS PERSONAL TESTIMONY WITH A WRITTEN AFFIDAVIT, OUTLINING THE BASIS
FOR THE APPLICATION IN MORE DETAIL AND ALLEGING SPECIFICALLY THAT
"ILLEGAL DRUGS ARE SOLD AND POSSESSED IN VIOLATION OF THE U.S.C.  TITLE
26, SECTION 4704A."  /13/  THE AFFIDAVIT CONCLUDED WITH THE LANGUAGE:
"I AM POSITIVE THAT LONNIE GOODING IS SECRETING NARCOTICS INSIDE HIS
APARTMENT AT 1419 CHAPIN STREET NW IN VIOLATION OF THE US CODE." 

THE MAGISTRATE THEN ISSUED A WARRANT DIRECTING THE CHIEF OF POLICE
OR "ANY MEMBER OF MPDC" TO SEARCH PETITIONER'S APARTMENT.  /14/  THE
WARRANT SPECIFICALLY NOTED THAT FACTS HAD BEEN SET FORTH IN AN
AFFIDAVIT ALLEGING A VIOLATION OF 26 U.S.C. 4704(A) (1964 ED.)  AND
THAT THOSE FACTS ESTABLISHED PROBABLE CAUSE TO MAKE THE SEARCH.  THE
WARRANT ALSO STATED THAT THE SEARCH COULD BE MADE "AT ANY TIME IN THE
DAY OR NIGHT."  THIS PHRASE WAS ACCOMPANIED BY A FOOTNOTE REFERENCE TO
FED. RULE CRIM. PROC. 41(C), PRESUMABLY BECAUSE THE POLICE OFFICER HAD
ASSERTED HE WAS "POSITIVE" THE DRUGS WERE IN PETITIONER'S APARTMENT. 
ONE OF THE BRIEFS FILED IN HIS CASE SUGGESTS THAT THE WARRANT FORM WAS
PREPRINTED AND CONTEMPLATED APPLICATION OF RULE 41 STANDARDS.  /15/ 

THE SEARCH WARRANT WAS EXECUTED ON FEBRUARY 12, 1971, AT 9:30 P.M. 
/16/  THE OFFICERS ENGAGED IN THE SEARCH WERE ALL MEMBERS OF THE
DISTRICT OF COLUMBIA METROPLOLITAN POLICE DEPARTMENT, AND THE SEARCH
UNCOVERED A SUBSTANTIAL QUANTITY OF CONTRABAND NARCOTIC MATERIALS. 
THEY WERE SEIZED AND FORMED THE BASIS FOR CHARGING PETITIONER WITH
VIOLATIONS OF 26 U.S.C. 4704(A) (1964 ED.)  /17/  AND 21 U.S.C. 174
(1964 ED.).  /18/  FOLLOWING HIS INDICTMENT IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON APRIL 6, 1971,
PETITIONER FILED A MOTION TO SUPPRESS THE EVIDENCE DISCOVERED IN THE
FEBRUARY 12 SEARCH. 

SEVERAL GROUNDS WERE ASSERTED IN SUPPORT OF THE MOTION, PARTICULARLY
THAT THE SEARCH WARRANT WAS EXECUTED AT NIGHT BUT THE APPLICATION FOR
THE WARRANT DID NOT COMPLY WITH THE D.C. CODE PROVISIONS FOR NIGHTTIME
SEARCH WARRANTS.  . . ."  /19/  ALTHOUGH NO PROVISIONS OF THE D.C. CODE
WERE EXPLICITLY REFERRED TO, PETITIONER'S ARGUMENT APPARENTLY WAS THAT
TITLE 23 OF THE D.C. CODE, REQUIRING THAT A SPECIAL SHOWING OF NEED BE
MADE TO JUSTIFY A SEARCH AT NIGHT, GOVERNED THIS SEARCH, AND THAT ITS
REQUIREMENTS HAD NOT BEEN MET.  THE DISTRICT COURT FOUND THIS REASONING
PERSUASIVE AND GRANTED THE MOTION TO SUPPRESS.  REJECTING THE
GOVERMENT'S ARGUMENT THAT THE WARRANT WAS NOT ISSUED UNDER TITLE 23 BUT
RATHER UNDER 21 U.S.C. 879(A), THE COURT STATED: 

"WHATEVER BE THE STANDARDS GENERALLY FOR ISSUANCE OF A NIGHTTIME
SEARCH WARRANT IN FEDERAL NARCOTICS CASES IN OTHER PARTS OF THE
COUNTRY, HOWEVER, THE COURT FINDS THAT THE EXISTENCE OF 21 U.S.C.
879(A) DOES NOT REMOVE SUCH CASES FROM THE EXPLICIT REQUIREMENTS FOR
SEARCH WARRANTS IN THE DISTRICT OF COLUMBIA UNDER THE NEWLY ENACTED
TITLE 23, D.C. CODE."  /20/ 

HAVING DECIDED THAT DISTRICT OF COLUMBIA LAW APPLIED, THE DISTRICT
COURT ADMITTED TO SOME UNCERTAINTY ABOUT THE STATUS OF D.C. CODE 33 -
414, THE PROVISION DEALING SPECIFICALLY WITH VIOLATIONS OF LOCAL DRUG
LAWS.  THE COURT NOTED WITH SOME PUZZLEMENT THAT NO MENTION OF THIS
PROVISION WAS FOUND IN THE LEGISLATIVE HISTORY OF TITLE 23, AND THAT
SOME LANGUAGE IN THE LEGISLATIVE HISTORY SUGGESTED THAT THE PROVISION
HAD SIMPLY BEEN OVERLOOKED.  /21/  NEVERTHELESS, THE COURT DETERMINED
THAT 

"PENDING PROMPT REVIEW OF THIS DETERMINATION OR CONGRESSIONAL
ACTION, AND PENDING INTERPRETATION OF 33 D.C. CODE 414(H) IN LIGHT OF
THE NEW TITLE 33 PROVISIONS, SEARCH WARRANTS WHICH ARE TO BE EXECUTED
IN THE NIGHTTIME SHOULD COMPLY IN ALL RESPECTS WITH 23 D.C. CODE
523(B)."  /22/ CONCEDEDLY THE WARRANT ISSUED IN THIS CASE DID NOT
COMPLY WITH THE REQUIREMENTS OF TITLE 23. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT REVERSED
THE DISTRICT COURT, /23/  ALTHOUGH NONE OF THE THREE JUDGES WHO
COMPOSED THE PANEL COMPLETELY AGREED WITH ANY OTHER ON THE PROPER
RATIONALE.  ALL THREE AGREED, HOWEVER, THAT 21 U.S.C. 879(A), RATHER
THAN ANY PROVISION WHICH DETERMINED THE LEGALITY OF THIS SEARCH.  ALL
THREE LIKEWISE AGREED THAT THE AFFIDAVIT SUBMITTED BY THE DISTRICT OF
COLUMBIA POLICE OFFICER SATISFIED THE REQUIREMENTS OF THAT SECTION. 
JUDGE WIKLEY AND JUDGE FAHY FOUND THAT NO GREATER SHOWING FOR A
NIGHTTIME SEARCH WAS REQUIRED BY 879(A) THEN WAS REQUIRED BY ITS
PREDECESSOR STATUTE GOVERNING FEDERAL NARCOTICS SEARCHES, 18 U.S.C.
1405 (1964 ED.), AND THAT THE AFFIDAVIT NEED ESTABLISH ONLY PROBABLE
CAUSE TO BELIEVE THAT THE PROPERTY WOULD BE ON THE PREMISES AT THE TIME
OF THE SEARCH.  /24/  JUDGE ROBINSON BELIEVED THAT 879(A) DID REQUIRE
AN ADDITIONAL SHOWING FOR A NIGHTTIME SEARCH, BUT CONCLUDED THAT SUCH A
SHOWING HAD BEEN MADE IN THIS CASE.  /25/ 

PETITIONER URGES THAT WE REVERSE THE COURT OF APPEALS ON EITHER OR
BOTH OF TWO ALTERNATIVE GROUNDS.  FIRST, PETITIONER REPEATS HIS
ASSERTION, SUSTAINED BY THE DISTRICT COURT, THAT TITLE 23 OF THE D.C.
CODE IS THE STATUTE APPLICABLE TO THE SEARCH IN THIS CASE AND THAT, AS
THE GOVERNMENT HAS CONCEDED, THE REQUIREMENTS OF THAT TITLE HAVE NOT
BEEN SATISFIED.  SECOND, PETITIONER ARGUES THAT, IF 21 U.S.C. 879(A) IS
CONSIDERED TO BE THE APPLICABLE PROVISION, A SPECIAL SHOWING FOR
NIGHTTIME SEARCHES MUST BE MADE.  WE AGREE WITH THE COURT OF APPEALS
THAT 21 U.S.C. 879(A) IS THE STATUTE APPLICABLE TO THIS CASE, AND THAT
ITS PROVISIONS HAVE BEEN SATISFIED HERE.  /26/

      I 

THE UNIQUE SITUATION OF THE DISTRICT OF COLUMBIA FOR WHICH CONGRESS
LEGISLATES BOTH SPECIALLY AND AS A PART OF THE NATION, GIVES RISE TO
THE PRINCIPAL DIFFICULTIES IN THIS CASE.  FOR WE DEAL HERE NOT WITH
STATUTORY SCHEMES ENACTED INDEPENDENT LEGISLATIVE BODIES, BUT WITH
POSSIBLY OVERLAPPING SCHEMES ENACTED BY A SINGLE BODY.  DESPITE THE
POTENTIAL OVERLAP, HOWEVER, WE THINK THAT THE OPERATIVE FACTS
SURROUNDING THIS SEARCH STRONGLY INDICATE THAT THE STANDARDS FOR
ISSUANCE OF A WARRANT SHOULD BE GOVERNED BY THE NATIONWIDE FEDERAL
LEGISLATION ENACTED BY CONGRESS--THAT IS, 21 U.S.C. 879(A) /27/  RATHER
THAN BY THE LOCAL D.C. LAWS.  TO BEGIN WITH, AN ASSISTANT UNITED STATES
ATTORNEY, WHO HAD DISCRETION TO PROCEED EITHER UNDER FEDERAL OR UNDER
LOCAL LAW, FILED THE APPLICATION FOR THE SEARCH WARRANT ALLEGING A
VIOLATION OF THE UNITED STATES CODE.  APPLICATION WAS MADE TO A UNITED
STATES MAGISTRATE, LOCATED IN THE UNITED STATES DISTRICT COURT
BUILDING, AND NEITHER THE APPLICATION NOR THE SUPPORTING AFFIDAVITS
CONTAINED ANY MENTION OF THE LOCAL NARCOTICS LAWS.  AFTER THE MATERIALS
WERE SEIZED, PETITIONER WAS INDICTED FOR VIOLATIONS OF FEDERAL LAW. 

PETITIONER CONTENDS, HOWEVER, THAT TITLE 23 OF THE D.C. CODE SHOULD
APPLY TO THIS CASE BECAUSE THE EXECUTING OFFICERS, AS WELL AS THE
OFFICER SWEARING TO THE AFFIDAVIT PRESNETED TO THE MAGISTRATE, WERE NOT
FEDERAL OFFICERS BUT OFFICERS OF THE DISTRICT OF COLUMBIA METROPOLITAN
POLICE DEPARTMENT.  HE ARGUES THAT THE PROVISIONS OF 21 U.S.C. 879(A)
WERE INTENDED TO APPLY SOLELY TO AGENTS OF THE BUREAU OF NARCOTICS AND
DANGEROUS DRUGS, NONE OF WHOM WERE INVOLVED HERE, WHEREAS TITLE 23 OF
THE D.C. CODE WAS INTENDED TO PROVIDE COMPREHENSIVE REGULATION OF
DISTRICT OF COLUMBIA POLICE OFFICERS INVESTIGATING BOTH LOCAL AND
FEDERAL OFFENSES.  PETITIONER REINFORCES HIS ARGUMENT BY NOTING THAT
THE FORMER FEDERAL STATUTE REGULATING DRUG SEARCHES SPECIFICALLY
PROVIDED THAT "A SEARCH WARRANT MAY BE DIRECTED TO ANY OFFICER OF THE
METROPOLITAN POLICE OF THE DISTRICT OF COLUMBIA AUTHORIZED TO ENFORCE
OR ASSIST IN ENFORCING A VIOLATION OF ANY OF SUCH PROVISIONS,"  /28/
WHILE NO SUCH SECTION APPEARS IN 21 U.S.C. 789.  THEREFORE, SAYS
PETITIONER, THE DISTRICT OF COLUMBIA POLICE WERE NO LONGER TO BE
CONSIDERED FEDERAL AGENTS FOR THE PURPOSE OF ENFORCING FEDERAL DRUG
LAWS. 

ALTHOUGH PETITIONER'S ARGUMENTS CANNOT BE DISMISSED LIGHTLY, WE FIND
THEM ULTIMATELY UNPERSUASIVE.  CONCEDEDLY THERE ARE HINTS IN THE
STATUTORY FRAMEWORK AND LEGISLATIVE HISTORY OF THE CONTROLLED
SUBSTANCES ACT, 84 STAT. 1242, THAT INDICATE THE POLICING FUNCTION
UNDER THOSE PROVISIONS WOULD BE THE PRIMARY RESPONSIBILITY OF THE
BUREAU OF NARCOTICS AND DANGEROUS DRUGS.  /29/  BUT THIS FOCUS ON THE
BUREAU'S ROLE SEEMS ENTIRELY NATURAL IN VIEW OF ONE OF THE ACT'S STATED
PURPOSES TO "COLLECT THE DIVERSE DRUG CONTROL AND ENFORCEMENT LAWS
UNDER ONE PIECE OF LEGISLATION TO FACILITATE LAW ENFORCEMENT, DRUG
RESEARCH, EDUCATIONAL AND RELATED CONTROL FACILITIES."  /30/  IN
PROVIDING A COMPREHENSIVE FEDERAL SCHEME FOR THE CONTROL OF DRUG ABUSE,
CONGRESS COULD BE EXPECTED TO PAY SPECIAL ATTENTION TO THE FEDERAL
AGENCY SET UP TO ENFORCE THE LAWS.  BUT THIS ATTENTION DOES NOT MEAN
THAT CONGRESS AT THE SAME TIME WISHED TO DISPENSE WITH THE AID OF OTHER
ENFORCEMENT PERSONANEL WHO HAD PREVIOUSLY GIVEN ASSISTANCE.     THE
FAILURE OF CONGRESS TO INCLUDED A SPECIAL PROVISION AUTHORIZING
DISTRICT OF COLUMBIA POLICE OFFICERS TO OBTAIN SEARCH WARRANTS FOR
INVESTIGATING FEDERAL OFFENSES CANNOT BE TAKEN AS A DELIBERATE
EXCLUSION IN VIEW OF THE OVERALL STATUTORY FRAMEWORK.  THE PROVISION
INCLUDED IN THE PREVIOUS FEDERAL STATUTE MAY WELL HAVE SEEMED
UNNECESSARY, BOTH IN LIGHT OF THE HISTORY OF COOPERATION BETWEEN THE
DISTRICT OF COLUMBIA POLICE AND FEDERAL OFFICERS AND IN VIEW OF THE
PROVISIONS OF D.C. CODE 4 - 138 PROVIDING THAT ANY WARRANT FOR SEARCH
OR ARREST, ISSUED BY ANY MAGISTRATE OF THE DISTRICT, MAY BE EXECUTED IN
ANY PART OF THE DISTRICT BY ANY MEMBER O FTHE POLICE FORCE.  . . ." 
/31/  THUS, BOTH CUSTOM AND STATUTE ALREADY ASSURED THE AVAILABLILITY
OF DISTRICT OF COLUMBIA POLICE.  FURTHERMORE, THE LEGISLATIVE HISTORY
RELATING TO 879(A) STRESSES THE NEED FOR STRONGER ENFORCEMENT OF THE
FEDERAL NARCOTICS LAWS, A GOAL HARDLY ADVANCED BY REDUCING THE FORCES
AVAILABLE TO EXECUTE THOSE LAWS.  IN FACT, THE PROVISION WHICH IS NOW
879(B), PERMITTING "NO-KNOCK" SEARCHES UNDER CERTAIN CONDITIONS, WAS
ONE OF THE MOST CONTROVERSIAL SECTIONS OF THE ENTIRE BILL, AND WAS
DEFENDED PRIMARILY BY THE PRESSING NEED FOR ADDED ENFORCEMENT WEAPONS
TO COMBAT THE INCREASED DRUG TRAFFIC.  /32/ 

FINALLY, THE INTERPRETATION URGED BY PETITIONER WOULD LEAVE DISTRICT
OF COLUMBIA OFFICERS ABLE TO EXECUTE GENERAL FEDERAL SEARCH WARRANTS
UNDER AMENDED FED. RULE CRIMIN.  PROC.  41, BUT DENY THEM THAT
AUTHORITY UNDER THE FEDERAL DRUG SEARCH STATUTE.  RULE 41 NOW PROVIDES
THAT "A FEDERAL LAW ENFORCEMENT OFFICER"--DEFINED IN THE RULE TO
INCLUDE "ANY CATEGORY OF OFICERS AUTHORIZED BY THE ATTORNEY GENERAL TO
REQUEST THE ISSUANCE OF A SEARCH WARRANT"--MAY MAKE APPLICATIONS UNDER
THE RULE.  THE ATTORNEY GENERAL HAS SINCE LISTED THE METROPOLITAN
POLICE DEPARTMENT AMONG THOSE AGENCIES WHICH ARE SO AUTHORIZED.  /33/
IF PETITIONER'S CONTENTION WERE ACCEPTED, IT WOULD SEEMINGLY MEAN THAT
THE GENERAL SEARCH WARRANT STATUTE APPLICABLE TO THE DISTRICT OF
COLUMBIA WOULD GOVERN DISTRICT OF COLUMBIA POLICE OFFICERS
INVESTIGATING FEDERAL DRUG CASES, BUT WOULD NOT GOVERN THEM WHEN
INVESTIGATING OTHER FEDERAL CRIMES.  THIS RESULT WOULD OBTAIN DESPITE
THE FACT THAT DISTRICT OF COLUMBIA POLICE OFFICERS HISTORICALLY PLAYED
A PROMINENT ROLE IN THE ENFORCEMENT OF FEDERAL DRUG LAWS UNDER 18
U.S.C. 1405 (1964 ED.). 

THERE IS LITTLE INDICATION THAT TITLE 23 OF THE D.C. CODE WAS
INTENDED TO SERVE THE SWEEPING PURPOSES WHICH PETITIONER ATTRIBUTES TO
IT.  /34/  THE SEARCH WARRANT PROVISIONS UPON WHICH PETITIONER RELIES
WERE PART OF THE COURT REFORM AND CRIMINAL PROCEDURE ACT, WHICH
SUBSTANTIALLY REORGANIZED THE DISTRICT OF COLUMBIA COURT SYSTEM,
PROVIDING FOR A NEW LOCAL COURT OF GENERAL JURISDICTION AND RELIEVING
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OF MUCH
OF ITS LOCAL BURDEN.  /35/  PRIOR TO THAT TIME ALL LOCAL FELONIES HAD
BEEN TRIED IN THE UNITED STATES DISTRICT COURT AND THE FEDERAL RULES OF
CRIMINAL PROCEDURE BY THEIR TERMS HAD APPLIED.  THE CREATION OF THE NEW
SUPERIOR COURT CREATED THE NEED FOR A NEW SET OF PROCEDURAL RULES, AND,
THOUGH SOME IMPORTANT CHANGES WERE MADE, THE NEW RULES QUITE CLOSELY
TRACKED THE FEDERAL RULES.  IT DOES NOT SEEM UNREASONABLE, THEREFORE,
TO SUGGEST THAT THE GENERAL PROVISION RELATING TO SEARCH WARRANTS,
FOUND IN D.C. CODE 23 - 521 ET SEQ. AND THEN INCORPORATED IN SIMILAR
FORM INTO THE RULES  /36/ PROMULGATED FEB. 1, 1971, FOR THE NEW
SUPERIOR COURT, WAS INTENDED TO BE A COUNTERPART TO FED. RULE CRIM.
PROC. 41.  THE FEDERAL RULE, AS DISSCUSSED INFRA, DID NOT APPLY TO
NARCOTICS CASES IN THE FEDERAL COURTS SINCE MORE SPECIFIC PROVISIONS,
FIRST OF 18 U.S.C. 1405 (1964 ED.)  AND THEN OF 21 U.S.C. 879(A),
CONTROLLED.  /37/ 

THIS CONCLUSION IS REINFORCED BY THE FACT THAT FEDERAL RULE 41 HAS
BEEN SUBSEQUENTLY MODIFIED TO MORE CLOSELY RESEMBLE THE DISTRICT OF
COLUMBIA STATUTE AND RULE.  THE NEW FEDERAL RULE, THOUGH LESS SPECIFIC
THAN THE LOCAL RULE, PROVIDES THAT A SEARCH WARRANT MUST BE ISSUED IN
THE DAYTIME, "UNLESS THE ISSUING AUTHORITY, BY APPROPRIATE PROVISION IN
THE WARRANT, AND FOR REASONABLE CAUSE SHOWN, AUTHORIZES ITS EXECUTION
AT TIMES OTHER THAN DAYTIME,"  AND ABANDONS THE OLD, CUMBERSOME
POSITIVITY STANDARD.  THE CONCERN FOR INDIVIDUAL PRIVACY REVEALED IN
THE PROVISIONS OF THE DISTRICT OF COLUMBIA SEARCH STATUTE MAY THUS BE
FOUND IN THE NEW FEDERAL RULE AS WELL, BUT CONGRESS, AS IT HAD IN THE
EARLIER VERSION OF THE RULE, NEVERTHELESS SHOWED ITS CLEAR INTENTION TO
LEAVE INTACT OTHER SPECIAL SEARCH WARRANT PROVISIONS, INCLUDING, OF
COURSE, THE PROVISIONS RELATING TO SEARCHES FOR CONTROLLED SUBSTNACES. 
/38/  IN THOSE LIMITED CASES CONGRESS HAS CONSIDERED THE NEED FOR
PRIVACY TO BE COUNTERBALANCED BY THE PULBIC NEED FOR MORE EFFECTIVE LAW
ENFORCEMENT.  WE DO NOT BELIEVE THAT CONGRESS, BY ENACTING A GENERAL
SEARCH WARRANT PROVISION FOR THE DISTRICT OF COLUMBIA, HAS STRUCK A
DIFFERENT BALANCE IN FEDERAL DRUG CASES SIMPLY BECAUSE DISTIRCT OF
COLUMBIA POLICE OFFICERS ARE INVOLVED. 

WE THEREFORE CONCLUDE, AS DID ALL THE JUDGES OF THE COURT OF
APPEALS, THAT THE STATUTE APPLICABLE TO THIS CASE IS 21 U.S.C. 879(A). 
OUR REMAINING TASK IS TO DETERMINE WHETHER THE REQUIREMENTS OF THAT

        II 

     "A SEARCH WARRANT RELATING TO OFFENSES INVOLVING CONTROLLED

  SUBSTANCES MAY BE SERVED AT ANY TIME OF THE DAY OR NIGHT IF THE

  JUDGE OR UNITED STATES MAGISTRATE ISSUING THE WARRANT IS

  SATISFIED THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT GROUNDS

  EXIST FOR THE WARRANT AND FOR ITS SERVICE AT SUCH TIME."  21

  U.S.C. 879(A). 

ONLY THE LAST SEVEN WORDS OF THE STATUTE ARE REALLY IN CONTROVERSY
HERE.  PETITIONER CONTENDS THAT THIS LANGUAGE, NOT FOUND IN THE
PREDECESSOR STATUTE, 18 U.S.C. 1405 (1964 ED.), WAS INTENDED TO REQUIRE
SOME SPECIAL SHOWING OF NEED FOR SEARCHES CONDUCTED AT NIGHT RATHER
THAN DURING THE DAY.  HIS CONTENTION WAS ADOPTED, AT LEAST IN PART, BY
JUDGE ROBINSON IN THE COURT OF APPEALS.  THE GOVERNMENT, ON THE OTHER
HAND, CONTENDS THAT IT MUST SHOW ONLY PROBABLE CAUSE TO BELIEVE THAT
THE SOUGHT-AFTER PROPERTY WILL BE ON THE PREMISES AT THE TIME OF THE
SEARCH, AND THAT IF THERE IS PROBABLE CAUSE TO BELIEVE THE PROPERTY
WILL BE ON THE PREMISES AT NIGHT, SUCH A SHOWING SUFFICIENTLY MEETS THE
REQUIREMENT IMPOSED BY THE LAST SEVEN WORDS OF 879(A). 

THE LANGUAGE OF THE STATUTE BY ITSELF IS NOT CRYSTAL CLEAR ON THIS
ISSUE.  PETITIONER INSISTS THAT THE LAST PHRASE REQUIRES WITH
UNMISTAKABLE CLARITY A SEPARATE FINDING OF PROBABLE CAUSE TO JUSTIFY A
NIGHTTIME SEARCH.  THUS, ACCORDING TO PETITIONER, THE ISSUING
MAGISTRATE WOULD HAVE TO SATISFY HIMSELF THAT THERE WAS NOT ONLY
PROBABLE CAUSE FOR THE SEARCH, BUT ALSO PROBABL CAUSE FOR BELIEVING
THAT THE SEARCH SHOULD BE CONDUCTED AT NIGHTTIME RATHER THAN DURING THE
DAYTIME.  WHILE THIS IS A POSSIBLE MEANING, IT IS BY NO MEANS THE ONLY
POSSIBLE MEANING ATTRIBUTABLE TO THE WORDS. 

PETITIONER'S INTERPRETATION REALLY ASSUMES THAT THE STATUTE READS:
"THERE IS PROBABLE CAUSE TO BELIEVE THAT GROUNDS EXIST FOR THE WARRANT
AND, IF SERVED AT NIGHT, FOR ITS SERVICE AT SUCH TIME."  BUT THE
STATUTE DOES NOT INCLUDE THE ITALICIZED FOUR WORDS; IT MAKES NO
DISTINCTION WHATEVER BETWEEN DAY AND NIGHT, AND LITERALLY READ WOULD
APPARENTLY REQUIRE THAT A SPECIAL SHOWING BE MADE FOR A DAYTIME SEARCH
AS WELL.  THE IDEA THAT A PARTICULARIZED SHOWING MUST BE MADE FOR
SEARCHES IN THE DAYTIME IS COMPLETELY NOVEL AND LACKS EVEN A SINGLE
COUNTERPART IN OTHER SEARCH STATUTES ENACTED BY CONGRESS. 

PETITIONER SUGGESTS THAT SINCE CONGESS WAS CONCERNED ABOUT THE
GREATER INTRUSION RESULTING FROM NIGHTTIME SEARCHES, IT WOULD BE
LOGICAL TO APPLY THE LANGUAGE, "PROBABLE CAUSE . . . FOR ITS SERVICE AT
SUCH TIME," ONLY TO NIGHTTIME SEARCHES.  BUT EVEN THIS INTERPRETATION,
WHICH IS BY NO MEANS A LITERAL READING OF THE LANGUAGE, IS NOT WHOLLY
CONVINCING.  THE TRADITIONAL LIMITATION PLACED ON NIGHTTIME SEARCHES,
AS EVIDENT FROM THE EARLIER LANGUAGE OF RULE 41, IS TO REQUIRE, NOT
THAT THERE BE PROBABLE CAUSE FOR SEARCHING AT NIGHT, BUT THAT THE
AFFIANT BE POSITIVE THAT THE PROPERTY IS IN FACT LOCATED ON THE
PROPERTY TO BE SEARCHED.  THUS CONGRESS' VERY CHOICE OF THE WORDS
"PROBABLE CUASE" WOULD INDICATE THAT THE EARLIER LIMITATION OF
"POSITIVELY" WAS NOT TO APPLY, WHILE OFERING NO OTHER IMMEDIATELY
ASCERTAINABLE STANDARD FOR WHAT SHOULD CONSTITUTE "PROBABLE CAUSE" FOR
EXECUTING A SEARCH WARRANT DURING THE NIGHT. 

THIS ROUNDABOUT WAY OF LIMITING NIGHTTIME SEARCHES, IF THAT WERE IN
FACT THE STATUTE'S INTENT, WOULD SHARPLY CONTRAST WITH THE MANNER IN
WHICH CONGRESS HAS REQUIRED SPECIAL SHOWINGS FOR NIGHTTIME SEARCHES IN
OTHER STATUTES.  FOR EXAMPLE, TITLE 23 OF THE D.C. CODE, DISCUSSED
SUPRA, SPECIFIES THAT THE WARRANT "BE EXECUTED DURING THE HOURS OF
DAYLIGHT" (EMPHASIS ADDED) UNLESS CERTAIN ITEMIZED CONDITIONS ARE MET. 
FEDERAL RULE CRIM. PROC. 41, AS AMENDED IN 1972, STATES: "THE WARRANT
SHALL BE SERVED IN THE DAYTIME UNLESS THE ISSUING AUTHORITY, BY
APPROPRIATE PROVISION IN THE WARRANT, AND FOR REASONABLE CAUSE SHOWN,
AUTHORIZES ITS EXECUTION AT TIMES OTHER THAN DAYTIME."  (EMPHASIS
ADDED.)  THE FACT THAT CONGRESS, WHEN IT HAS INTENDED TO REQUIRE SUCH
SPECIAL SHOWINGS FOR NIGHTTIME SEARCHES, HAS DONE SO IN LANGUAGE
LARGELY FREE FROM AMBIGUITY MILITATES AGAINST PETITIONER'S ASSERTION
THAT THE LANGUAGE OF 879(A) ON ITS FACE SUPPORTS HIS POSITION. 

THE LEGISLATIVE HISTORY LENDS NO SUPPORT TO PETITIONER'S
INTERPRETATION, BUT IN FACT CUTS THE OTHER WAY.  BOTH THE HOUSE AND THE
SENATE COMMITTEE REPORTS ON THE BILL INCORPORATED A SUMMARY PREPARED BY
THE DEPARTMENT OF JUSTICE, WHERE MUCH OF THE BILL'S DRAFTING HAD TAKEN
PLACE, WHICH STATED: 

"SECTION 702(A) (NOW 879(A)) INCORPORATES 18 U.S.C. 1405 AND
AUTHORIZES SERVICE OF A SEARCH WARRANT AT ANY TIME OF THE DAY OR NIGHT
IF PROBABLE CAUSE HAS BEEN ESTABLISHED TO THE SATISFACTION OF THE JUDGE
OR U.S. MAGISTRATE ISSUING THE WARRANT."  /39/ AS PREVIOUSLY NOTED,
1405 PROVIDED THAT A SEARCH WARRANT COULD BE SERVED AT ANY TIME OF THE
DAY OR NIGHT SO LONG AS THE ISSUING OFFICER WAS "SATISFIED THAT THERE
IS PROBABLE CAUSE TO BELIEVE THAT THE GROUNDS FOR THE APPLICATION
EXIST.  . . ."  CASE LAW HAD UNIFORMLY INTERPRETED THE LANGUAGE TO MEAN
THAT PROBABLE CAUSE FOR THE WARRANT ITSELF WAS ALL THAT WAS NECESSARY
FOR A NIGHTTIME SEARCH.  /40/  THE OFFICERS OR AGENTS SIMPLY HAD TO
ESTABLISH PROBABLE CAUSE FOR BELIEVING THAT THE SOUGHT-AFTER PROPERTY
WOULD BE FOUND IN THE PLACE TO BE SEARCHED. 

THERE IS NO SUGGESTION IN ANY OF THE HEARINGS OR DEBATES BEFORE
CONGRESS THAT A CHANGE FROM THE PRIOR LAW IN THIS AREA WAS INTENDED. 
THE PROVISION ITSELF WENT UNMENTIONED IN THE DEBATES AND HEARINGS ON
THE BILL, A SURPRISING OMISSION IF THE BILL EFFECTED THE CUTBACK
PETITIONER SAYS IT DID.  OF LIKE IMPORT IS THE FACT THAT IN THE LONG
AND HEATED DISCUSSIONS OVER 702(B), THE SO-CALLED "NO-KNOCK" PROVISION
OF THE BILL, NO DEFENDER OF THE BILL SAW FIT TO ARGUE THAT ANY GREATER
INTRUSION CAUSED BY THE GREATER DIFFICULTY IN OBTAINING WARRANTS
EXECUTABLE AT NIGHT.  /41/  WHILE CONGRESSIONAL SILENCE AS TO A
PARTICULAR PROVISION OF A BILL DURING DEBATES WHICH GIVE EXTENSIVE
CONSIDERATION TO NEIGHBORING PROVISIONS IS NOT EASY TO INTERPRET, IT
WOULD BE UNUSUAL FOR SUCH A SIGNIFICANT CHANGE AS THAT PROPOSED BY
PETITIONER TO HAVE ENTIRELY ESCAPED NOTICE. 

FINALLY, IT IS IMPORTANT TO NOTE THAT THE DEPARTMENT OF JUSTICE
ITSELF SUBMITTED THIS BILL TO CONGRESS FOR ENACTMENT, INCLUDING 879(A)
IN ITS PRESENT FORM.  SINCE THE HEARINGS AND DEBATES STRESS THAT A
MAJOR PURPOSE OF THE BILL WAS TO SUPPLY MORE EFFECTIVE ENFORCEMENT
TOOLS TO COMBAT THE INCREASING USE OF NARCOTIC DRUGS, IT SEEMS TOTALLY
ILLOGICAL TO SUGGEST THAT THE DEPARTMENT OF JUSTICE WOULD SUBMIT A BILL
MAKING IT SUBSTANTIALLY MORE DIFFICULT TO CONTROL THE TRAFFIC IN HARD
DRUGS.  PETITIONER SUGGESTS THAT THIS SURRENDER WAS NECESSARY TO
CONVINCE CONGRESS TO BRING ADDITIONAL DRGUS WITHIN THE CONTROLLED
SUBSTANCES ACT, BUT THAT THEORY RESTS ENTIRELY ON SPECULATION.  THERE
IS ABSOLUTELY NO INDICATION IN THE LEGISLATIVE HISTORY THAT ANY PRICE
HAD TO BE PAID FOR WHAT WAS THOUGHT TO BE A MUCH-DESIRED REORGANIZATION
AND EXPANSION OF THE DRUG LAWS, MUCH LESS THE SUBSTANTIAL PRICE THAT
PETITIONER ARGUES HAD TO BE PAID HERE. 

WE THEREFORE CONCLUDE THAT 21 U.S.C. 879(A) REQUIRES NO SPECIAL
SHOWING FOR A NIGHTTIME SEARCH, OTHER THAN A SHOWING THAT THE
CONTRABAND IS LIKELY TO BE ON THE PROPERTY OR PERSON TO BE SEARCHED AT
THAT TIME.  /42/  WE BELIEVE THAT THE SHOWING WAS MET IN THIS CASE. 
THE AFFIDAVIT SUBMITTED BY THE DISTRICT OF COLUMBIA POLICE OFFICER
SUGGESTED THAT THERE WAS A CONTINUING TRAFFIC OF DRUGS FROM
PETITIONER'S APARTMENT, AND A PRIOR PURCHASE THROUGH AN INFORMER HAD
CONFIRMED THAT DRUGS WERE AVAILABLE.  THIS WAS SUFFICIENT TO SATISFY 21
U.S.C. 879(A).  THE JUDGMENT OF THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT IS

              AFFIRMED. 

/1/  THE GOVERNMENT CONTENDS THAT EVEN THOUGH WE WERE TO DETERMINE
THAT THE APPLICABLE STATUTORY PROVISION WAS VIOLATED IN THIS CASE, THE
EVIDENCE SHOULD NONTHELESS NOT BE SUPPRESSED.  SINCE WE CONCLUDED THAT
THE SEIZURE WAS CONSISTENT WITH THE GOVERNING STATUTE, WE HAVE NO
OCCASION TO REACH THIS ALTERNATIVE ARGUMENT. 

/2/  SEE 155 U.S. APP. D.C. 259, 261, 477 F.2D 428, 430 (1973),
QUOTING FROM 328 F. SUPP. 1005, 1008 (DC 1971). 

/3/  33 - 414.  SEARCH WARRANTS--REQUIREMENTS--FORM--CONTENTS-
RETURN-- PENALTY FOR INTERFERING WITH SERVICE. 

"(A) A SEARCH WARRANT MAY BE ISSUED BY ANY JUDGE OF THE SUPERIOR
COURT OF THE DISTRICT OF COLUMBIA OR BY A UNITED STATES COMMISSIONER
FOR THE DISTRICT OF COLUMBIA WHEN ANY NARCOTIC DRUGS ARE MANUFACTURED,
POSSESSED, CONTROLLED, SOLD, PRESCRIBED, ADMINISTERED, DISPENSED, OR
COMPOUNDED, IN VIOLATION OF THE PROVISIONS OF THIS CHAPTER, AND ANY
SUCH NARCOTIC DRUGS AND ANY OTHER PROPERTY DESIGNED FOR USE IN
CONNECTION WITH SUCH UNLAWFUL MANUFACTURING, POSSESSION, CONTROLLING,
SELLING, PRESCRIBING, ADMINISTERING, DISPENSING, OR COMPOUNDING, MAY BE
SEIZED THEREUNDER, AND SHALL BE SUBJECT TO SUCH DISPOSITION AS THE
COURT MAY MAKE THEREOF AND SUCH NARCOTIC DRUGS MAY BE TAKEN ON THE
WARRANT FROM ANY HOUSE OF OTHER PLACE IN WHICH THEY ARE CONCEALED. 
"(B) A SEARCH WARRANT CANNOT BE ISSUED BUT UPON PROBABLE CAUSE
SUPPORTED BY AFFIDAVIT PARTICULARLY DESCRIBING THE PROPERTY AND THE
PLACE TO BE SEARCHED. 

"(C) THE JUDGE OR COMMISSIONER MUST, BEFORE ISSUING THE WARRANT,
EXAMINE ON OATH THE COMPLAINANT AND ANY WITNESSES HE MAY PRODUCE, AND
REQUIRE THEIR AFFIDAVITS OR TAKE THEIR DEPOSITIONS IN WRITING AND CAUSE
THEM TO BE SUBSCRIBED BY THE PARTIES MAKING THEM. 

"(D) THE AFFIDAVITS OR DEPOSITIONS MUST SET FORTH THE FACTS TENDING
TO ESTABLISH THE GROUNDS OF THE APPLICATION OR PROBABLE CAUSE FOR
BELIEVING THAT THEY EXIST. 

"(D[ F THE JUDGE OR COMMISSIONER IS THEREUPON SATISFIED OF THE
EXISTNECE OF THE GROUNDS OF THE APPLICATION OR THAT THERE IS PROBABLE
CAUSE TO BELIEVE THEIR EXISTENCE, HE MUST ISSUE A SEARCH WARRANT,
SIGNED BY HIM, TO THE MAJOR AND SUPERINTENDENT OF POLICE OF THE
DISTRICT OF COLUMBIA OR ANY MEMBER OF THE METROPOLITAN POLICE
DEPARTMENT, STATING THE PARTICULAR GROUNDS OR PROBABLE CAUSE FOR ITS
ISSUE AND THE NAMES OF THE PERSONS WHOSE AFFIDAVITS HAVE BEEN TAKEN IN
SUPPORT THEREOF, AND COMMANDING HIM FORTHWITH TO SEARCH THE PLACE NAMED
FOR THE PROPERTY SPECIFIED AND TO BRING IT BEFORE THE JUDGE OR
COMMISSIONER. 

"(F) A SEARCH WARRANT MAY IN ALL CASES BE SERVED BY ANY OF THE
OFFICERS MENTIONED IN ITS DIRECTION, BUT BY NO OTHER PERSON, EXCEPT IN
AID OF THE OFFICER ON HIS REQUIRING IT, HE BEING PRESENT AND ACTING IN
ITS EXECUTION. 

"(G) THE OFFICER MAY BREAK OPEN ANY OUTER OR INNER DOOR OR WINDOW OF
A HOUSE, OR ANY PART OF A HOUSE, OR ANYTHING THEREIN, TO EXECUTE THE
WARRANT, IF, AFTER NOTICE OF HIS AUTHORITY AND PURPOSE, HE IS REFUSED
ADMITTANCE. 

"(H) THE JUDGE OR COMMISSIONER SHALL INSERT A DIRECTION IN THE
WARRANT THAT IT MAY BE SERVED AT ANY TIME IN THE DAY OR NIGHT." 

/4/  23 - 521.  NATURE AND ISSUANCE OF SEARCH WARRANTS 

"(A) UNDER CIRCUMSTANCES DESCRIBED IN THIS SUBCHAPTER, A JUDICIAL
OFFICER MAY ISSUE A SEARCH WARANT UPON APPLICATION OF A LAW ENFORCEMENT
OFFICER OR PROSECUTOR.  A WARRANT MAY AUTHORIZE A SEARCH TO BE
CONDUCTED ANYWHERE IN THE DISTRICT OF COLUMBIA AND MAY BE EXECUTED
PURSUANT TO ITS TERMS. 

"(B) A SEARCH WARRANT MAY DIRECT A SEARCH OF ANY OR ALL OF THE
FOLLOWING: 

"(1) ONE OR MORE DESIGNATED OR DESCRIBED PLACES OF PREMISES; 

"(2) ONE OR MORE DESIGNATED OR DESCRIBED VEHICLES; 

"(3) ONE OR MORE DESIGNATED OR DESCRIED PHYSICAL OBJECTS; OR 

"(4) DESIGNATED PERSONS. 

"(C) A SEARCH WARRANT MAY DIRECT THE SEIZURE OF DESIGNATED PROPERTY
OR KINDS OF PROPERTY, AND THE SEIZURE MAY INCLUDE, TO SUCH EXTENT AS IS
REASONABLE UNDER ALL THE CIRCUMSTANCES, TAKING PHYSICAL OR OTHER
IMPRESSIONS, OR PERFORMING CHEMICAL, SCIENTIFIC, OR OTHER TESTS OR
EMPERIMENTS OF, FROM, OR UPON DESIGNATED PREMISES, VEHCILES, OR
OBJECTS. 

"(D) PROPERTY IS SUBJECT TO SEIZURE PURSUANT TO A SEARCH WARRANT IF
THERE IS PROBABLE CAUSE TO BELIEVE THAT IT--, 

"(1) IS STOLEN OR EMBEZZLED; 

"(2) IS CONTRABAND OR OTHERWISE ILLEGALLY POSSESSED; 

"(3) HAS BEEN USED OR IS POSSESSED FOR THE PURPOSE OF BEING USED, OR
IS DESIGNED OR INTENDED TO BE USED, TO COMMIT OR CONCEAL THE COMMISSION
OF A CRIMINAL OFFENSE; OR 

"(4) CONSTITUTES EVIDENCE OF OR TENDS TO DEMONSTRATE THE COMMISSION
OF AN OFFENSE OR THE IDENTITY OF A PERSON PARTICIPATING IN THE
COMMISSION OF AN OFFENSE. 

"(E) A SEARCH WARRANT MAY BE ADDRESSED TO A SPECIFIC LAW ENFORCEMENT
OFFICER OR TO ANY CLASSIFICATION OF OFFICERS OF THE METROPOLITAN POLICE
DEPARTMENT OF THE DISTRICT OF COLUMBIA OR OTHER AGENCY AUTHORIZED TO
MAKE ARRESTS OR EXECUTED PROCESS IN THE DISTRICT OF COLUMBIA. 

"(F) A SEARCH WARRANT SHALL CONTAIN--, 

"(1) THE NAME OF THE ISSUING COURT, THE NAME AND SIGNATURE OF THE
ISSUING JUDICIAL OFFICER, AND THE DATE OF ISSUANCE; 

"(2) IF THE WARRANT IS ADDRESSED TO A SPECIFIC OFFICER, THE NAME OF
THAT OFFICER, OTHERWISE, THE CLASSIFICATIONS OF OFFICERS TO WHOM THE
WARRANT IS ADDRESSED; 

"(3) A DESIGNATION OF THE PREMISES, VEHICLES, OBJECTS, OR PERSONS TO
BE SEARCHED, SUFFICIENT FOR CERTAINTY OF IDENTIFICATION; 

"(4) A DESCRIPTION OF THE PROPERTY WHOSE SEIZURE IS THE OBJECT OF
THE WARRANT; 

"(5[ A DIRECTION THAT THE WARRANT BE EXECUTED DURING THE HOURS OF
DAYLIGHT OR, WHERE THE JUDICAL OFFICER HAS FOUND CAUSE THEREFOR,
INCLUDING ONE OF THE GROUNDS SET FORTH IN SECTION 23 - 522(C)(1), AN
AUTHORIZATION FOR EXECUTION AT ANY TIME OF DAY OR NIGHT; 

"(6) WHERE THE JUDICIAL OFFICER HAS FOUND CAUSE THEREFOR, INCLUDING
ONE OF THE GROUNDS SET FORTH IN SUBPARAGRAPH (A), (B), OR (D) OF
BREAK AND ENTER THE DWELLING HOUSE OR OTHER BUILDING OR VEHICLES TO BE
SEARCHED WITHOUT GIVING NOTICE OF HIS IDENTITY AND PURPOSE; AND 

"(7) A DIRECTION THAT THE WARRANT AND AN INVENTORY OF ANY PROPERTY
SEIZED PURSUANT THERETO BE RETURNED TO THE COURT ON THE NEXT COURT DAY
AFTER ITS EXEUCTION.  23 - 522.  APPLICATIONS FOR SEARCH WARRANTS 

"(A) EACH APPLICATION FOR A SEARCH WARRANT SHALL BE MADE IN WRITING
UPON OATH OR AFFIRMATION TO A JUDICIAL OFFICER. 

"(B) EACH APPLICATION SHALL INCLUDE--, 

"(1) THE NAME AND TITLE OF THE APPLICANT; 

"(2) A STATEMENT THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT
PROPERTY OF A KIND OR CHARACTER DESCRIBED IN SECTION 23 - 521(D) IS
LIKELY TO BE FOUND IN A DESIGNATED PREMISE, IN A DESIGNATED VEHICLE OR
SUBJECT, OR UPON DESIGNATED PERSONS; 

"(3) ALLEGATIONS OF FACT SUPPORTING SUCH STATEMENT; AND 

"(4) A REQUEST THAT THE JUDICAL OFFICER ISSUE A SEARCH WARRANT
DIRECTING A SEARCH FOR AND SEIZURE OF THE PROPERTY IN QUESTION.  "THE
APPLICANT MAY ALSO SUBMIT DEPOSITIONS OF AFFIDAVITS OF OTHER PERSONS
CONTAINING ALLEGATIONS OF FACT SUPPORTING OR TENDING TO SUPPORT THOSE
CONTAINED IN THE APPLICATION. 

"(C) THE APPLICATION MAY ALSO CONTAIN--, 

"(1) A REQUEST THAT THE SEARCH WARRANT BE MADE EXECUTABLE AT ANY
HOUR OF THE DAY OR NIGHT, UPON THE GROUND THAT THERE IS PROBABLE CAUSE
TO BELIEVE THAT (A) IT CANNOT BE EXECUTED DURING THE HOURS OF DAYLIGHT,
(B) THE PROPERTY SOUGHT IS LIKELY TO BE REMOVED OR DESTROYED IF NOT
SEIZED FORTHWITH, OR (C) THE PROPERTY SOUGHT IS NOT LIKELY TO BE FOUND
EXCEPT AT CERTAIN TIMES OR IN CERTAIN CIRCUMSTANCES; AND 

"(2) A REQUEST THAT THE SEARCH WARRANT AUTHORIZE THE EXECUTING
OFFICER TO BREAK AND ENTER DWELLING HOUSES OR OTHER BUILDINGS OR
VEHICLES TO BE SEARCHED WITHOUT GIVING NOTICE OF HIS IDENTITY AND
PURPOSE, UPON PROBABLE CAUSE TO BELIEVE THAT ONE OF THE CONDITIONS SET
FORTH IN SUBPARAGRAPH (A), (B), OR (D) OF SECTION 23 - 591(C)(2) IS
LIKELY TO EXIST AT THE TIME AND PLACE AT WHICH SUCH WARRANT IS TO BE
EXECUTED. 

"ANY REQUEST MADE PURSUANT TO THIS SUBSECTION MUST BE ACCOMPANIED
AND SUPPORTED BY ALLEGATIONS OF FACT SUPPORTING SUCH REQUEST." 

/5/  AT THE TIME OF THE SEARCH IN THIS CASE RULE 41 READ, IN PART,
AS FOLLOWS:  "SEARCH AND SEIZURE 

"(A) AUTHORITY TO ISSUE WARRANT.  A SEARCH WARRANT AUTHORIZED BY
THIS RULE MAY BE ISSUED BY A JUDGE OF THE UNITED STATES OR OF A STATE,
COMMONWEALTH OR TERRITORIAL COURT OF RECORD OR BY A UNITED STATES
COMMISSIONER WITHIN THE DISTRICT WHEREIN THE PROPERTY SOUGHT IS
LOCATED. 

"(B) GROUNDS FOR ISSUANCE.  A WARRANT MAY BE ISSUED UNDER THIS RULE
TO SEARCH FOR AND SEIZE ANY PROPERTY 

"(1) STOLEN OR EMBEZZLED IN VIOLATION OF THE LAWS OF THE UNITED
STATES; OR 

"(2) DESIGNED OR INTENDED FOR USE OR WHICH IS OR HAS BEEN USED AS
THE MEANS OF COMMITTING A CRIMINAL OFFENSE; OR 

"(3) POSSESSED, CONTROLLED, OR DESIGNED OR INTENDED FOR USE OR WHICH
IS OR HAS BEEN USED IN VIOLATION OF TITLE 18, U.S.C., 957. 

"(C) ISSUANCE AND CONTENTS.  A WARRANT SHALL ISSUE ONLY ON AFFIDAVIT
SWORN TO BEFORE THE JUDGE OF COMMISSIONER AND ESTABLISHING THE GROUNDS
FOR ISSUING THE WARRANT.  IF THE JUDGE OR COMMISSIONER IS SATISFIED
THAT GROUNDS FOR THE APPLICATION EXIST OR THAT THERE IS PROBABLE CAUSE
TO BELIEVE THAT THEY EXIST, HE SHALL ISSUE A WARRANT IDENTIFYING THE
PROPERTY AND NAMING OR DESCRIBING THE PERSON OR PLACE TO BE SEARCHED. 
THE WARRANT SHALL BE DIRECTED TO A CIVIL OFFICER OF THE UNITED STATES
AUTHORIZED TO ENFORCE OR ASSIST IN ENFORCING ANY LAW THEREOF OR TO A
PERSON SO AUTHORIZED BY THE PRESIDENT OF THE UNITED STATES.  IT SHALL
STATE THE GROUNDS OR PROBABLE CAUSE FOR ITS ISSUANCE AND THE NAMES OF
THE PERSONS WHO AFFIDAVITS HAVE BEEN TAKEN IN SUPPORT THEREOF.  IT
SHALL COMMAND THE OFFICER TO SEARCH FORTHWITH THE PERSON OR PLACE NAMED
FOR THE PROPERTY SPECIFIED.  THE WARRANT SHALL DIRECT THAT IT BE SERVED
IN THE DAYTIME, BUT IF THE AFFIDAVITS ARE POSITIVE THAT THE PROPERTY IS
ON THE PERSON OR IN THE PLACE TO BE SEARCHED, THE WARRANT MAY DIRECT
THAT IT BE SERVED AT ANY TIME.  IT SHALL DESIGNATE THE DISTRICT JUDGE
OR THE COMMISSIONER TO WHOM IT SHALL BE RETURNED. 

        .       .         .         .         . 

"(G) SCOPE AND DEFINITION.  THIS RULE DOES NOT MODIFY ANY ACT,
INCONSISTENT WITH IT, REGULATING SEARCH, SEIZRUE AND THE ISSUANCE AND
EXECUTION OF SEARCH WARRANTS IN CIRCUMSTANCES FOR WHICH SPECIAL
PROVISION IS MADE.  THE TERM 'PROPERTY' IS USED IN THIS RULE TO INCLUDE
DOCUMENTS, BOOKS, PAPERS AND NAY OTHER TANGIBLE OBJECTS." 

/6/  RULE 41 HAS SINCE BEEN AMENDED TO READ, IN PART: 

"(A) AUTHORITY TO ISSUE WARRANT.  A SEARCH WARRANT AUTHORIZED BY
THIS RULE MAY BE ISSUED BY A FEDERAL MAGISTRATE OR A JUDGE OF A STATE
WITHIN THE DISTRICT WHEREIN THE PROPERTY SOUGHT IS LOCATED, UPON
REQUEST OF A FEDERAL LAW ENFORCEMENT OFFICER OR AN ATTORNEY FOR THE
GOVERNMENT. 

"(B) PROPERTY WHICH MAY BE SEIZED WITH A WARRANT.  A WARRANT MAY BE
ISSUED UNDER THIS RULE TO SEARCH FOR AND SEIZE ANY (1) PROPERTY THAT
CONSTITUTES EVIDENCE OF THE COMMISSION OF A CRIMINAL OFFENSE; OR (2)
CONTRABAND, THE FRUITS OF CRIME, OR THINGS OTHERWISE CRIMINALLY
POSSESSED; OR (3) PROPERTY DESIGNED OR INTENDED FOR USE OR WHICH IS OR
HAS BEEN USED AS THE MEANS OF COMMITTING A CRIMINAL OFFENSE. 

"(C) ISSUANCE AND CONTENTS.  A WARRANT SHALL ISSUE ONLY ON AN
AFFIDAVIT OR AFFIDAVITS SWORN TO BEFORE THE FEDERAL MAGISTRATE OR STATE
JUDGE AND ESTABLISHING THE GROUNDS FOR ISSUING THE WARRANT.  IF THE
FEDERAL MAGISTRATE OR STATE JUDGE IS SATISFIED THAT GROUNDS FOR THE
APPLICATION EXIST OR THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT THEY
EXIST, HE SHALL ISSUE A WARRANT IDENTIFYING THE PROPERTY AND NAMING OF
DESCRIBING THE PERSON OR PLACE TO BE SEARCHED.  THE FINDING OF PROBABLE
CAUSE MAY BE BASED UPON HEARSAY EVIDENCE IN WHOLE OR IN PART.  BEFORE
RULING ON A REQUEST FOR A WARRANT THE FEDERAL MAGISTRATE OR STATE JUDGE
MAY REQUIRE THE AFFIANT TO APPEAR PERSONALLY AND MAY EXAMINE UNDER OATH
THE AFFIANT AND ANY WITNESSES HE MAY PRODUCE, PROVIDED THAT SUCH
PROCEEDING SHALL BE TAKEN DOWN BY A COURT REPORTER OR RECORDING
EQUIPMENT AND MADE PART OF THE AFFIDAVIT.  THE WARRANT SHALL BE
DIRECTED TO A CIVIL OFFICER OF THE UNITED STATES AUTHORIZED TO ENFORCE
OR ASSIST IN ENFORCING ANY LAW THEREOF OR TO A PERSON SO AUTHORIZED BY
THE PRESIDENT OF THE UNITED STATES.  IT SHALL COMMAND THE OFFICER TO
SEARCH, WITHIN A SPECIFIED PERIOD OF TIME NOT TO EXCEED 10 DAYS, THE
PERSON OR PLACE NAMED FOR THE PROPERTY SPECIFIED.  THE WARRANT SHALL BE
SERVED IN THE DAYTIME, UNLESS THE ISSUING AUTHORITY, BY APPROPRIATE
PROVISION IN THE WARRANT, AND FOR REASONABLE CAUSE SWORN, AUTHORIZES
ITS EXECUTION AT TIMES OTHER THAN DAYTIME.  IT SHALL DESIGNATE A
FEDERAL MAGISTRATE TO WHOM IT SHALL BE RETURNED. 

        .         .         .         .         . 

"(H) SCOPE AND DEFINITION.  THIS RULE DOES NOT MODIFY ANY ACT,
INCONSISTENT WITH IT, REGULATING SEARCH, SEIZER AND THE ISSUANCE AND
EXECUTION OF SEARCH WARRANTS IN CIRCUMSTANCES FOR WHICH SPECIAL
PROVISION IS MADE.  THE TERM 'PROPERTY' IS USED IN THIS RULE TO INCLUDE
DOCUMENTS, BOOKS, PAPERS AND ANY OTHER TANGIBLE OBJECTS.  THE TERM
'DAYTIME' IS USED IN THIS RULE TO MEAN THE HOURS FROM 6:00 A.M. TO
10:00 P.M. ACCORDING TO LOCAL TIME.  THE PHRASE 'FEDERAL LAW
ENFORCEMENT OFFICER' IS USED IN THIS RULE TO MEAN ANY GOVERNMENT AGENT,
OTHER THAN AN ATTORNEY FOR THE GOVERNMENT AS DEFINED IN RULE 54(C), WHO
IS ENGAGED IN THE ENFORCEMENT OF THE CRIMINAL LAWS AND IS WITHIN ANY
CATEGORY OF OFFICERS AUTHORIZED BY THE ATTORNEY GENERAL TO REQUEST THE
ISSUANCE OF A SEARCH WARRANT." 

/7/  10, 40 STAT. 229. 

/8/  "21 U.S.C. 879.  SEARCH WARRANTS. 

"(A) A SEARCH WARRANT RELATING TO OFFENSES INVOLVING CONTROLLED
SUBSTANCES MAY BE SERVED AT ANY TIME OF THE DAY OR NIGHT IF THE JUDGE
OR UNITED STATES MAGISTRATE ISSUING THE WARRANT IS SATISFIED THAT THERE
IS PROBABLE CAUSE TO BELIEVE THAT GROUNDS EXIST FOR THE WARRANT AND FOR
ITS SERVICE AT SUCH TIME." 

/9/  "1405.  ISSUANCE OF SEARCH WARRANTS--PROCEDURE. 

"IN ANY CASE INVOLVING A VIOLATION OF ANY PROVISION OF PART I OR
PART II OF SUBCHAPTER A OF CHAPTER 39 OF THE INTERNAL REVENUE CODE OF
1954 THE PENALTY FOR WHICH IS PROVIDED IN SUBSECTION (A) OR (B) OF
OF SECTION 2 OF THE NARCOTIC DRUGS IMPORT AND EXPORT ACT, AS AMENDED
(21 U.S.C., SEC. 174), OR A VIOLATION OF THE ACT OF JULY 11, 1941, AS
AMENDED (21 U.S.C., SEC. 184A)--, 

"(1) A SEARCH WARRANT MAY BE SERVED AT ANY TIME OF THE DAY OR NIGHT
IF THE JUDGE OR THE UNITED STATES COMMISSIONER ISSUING THE WARRANT IS
SATISFIED THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT THE GROUNDS FOR
THE APPLCIATION EXIST, AND     "(2) A SEARCH WARRANT MAY BE DIRECTED TO
ANY OFFICER OF THE METROPOLITAN POLICE OF THE DISTRICT OF COLUMBIA
AUTHORIZED TO ENFORCE OR ASSIST IN ENFORCING A VIOLATION OF ANY OF SUCH
PROVISIONS." 

/10/  SEE, E.G., H. R. REP. NO. 2546, 84TH CONG., 2D SESS., 16
(1956). 

/11/  SEE, E.G., UNITED STATES V. STALLINGS, 413 F.2D 200 (CA7),
CERT. DENIED, 396 U.S. 972 (1969); UNITED STATES V. CASTLE, 213 F.
SUPP. 52 (DC 1962). 

OUR BROTHER MARSHALL IN HIS DISSENTING OPINION STRESSES CONGRESS
CONTINUING CONCERN FOR INDIVIDUAL PRIVACY, AS DEMONSTRATED BY THE
LIMITATIONS ON NIGHTTIME SEARCHES CONTAINED IN THE ESPIONAGE ACT,
SUPRA, AND LATER, FED. CRIM. PROC. 41.  THE IMPLICATION SEEMS TO BE
THAT THIS CONCERN MUST BE READ INTO THE PROVISIONS OF 21 U.S.C. 879(A)
TO REACH THE INTERPRETATION FOR WHICH HE ARGUES.  BUT THIS ARGUMENT
TOTALLY IGNORES THE FACT THAT CONGRESS, IN 1956, ENACTED A STATUTE
GOVERNING SEARCHES FOR DANGEROUS DRUGS WHICH DELIBERATELY REMOVED THE
STRICTER LIMITATIONS ON NIGHT SEARCHES FOUND IN RULE 41.  OUR
CONSTRUCTION OF THE PRINCIPAL STATUTE CONSIDERED IN THIS CASE, 21
U.S.C. 879(A), THEREFORE, REPRESENTS NO NOVEL DEPARTURE FROM PREVIOUS
CONGRESSIONAL POLICY IN THIS AREA, BUT IS, ON THE CONTRARY, CONSISTENT
WITH THE CONCEDED MEANING OF THE STATUE WHICH GOVERNED FEDERAL DRUG
SEARCHES FOR ALMOST 15 YEARS. 

/12/  THE AFFIDAVIT READ IN FULL:  "BEFORE LAWRENCE S. MARGOLIS,
WASH., D.C.  THE UNDERSIGNED BEING DULY SWORN DEPOSES AND SAYS: 

"THAT HE (HAS REASON TO BELIEVE) THAT (ON THE PREMISES KNOWN AS)
1419 CHAPIN STREET, N.W., AS YOU ENTER THE BUILDING LAST APARTMENT ON
THE RIGHT NEXT TO THE ELEVATOR ON THE FIRST FLOOR WASHINGTON IN THE
DISTRICT OF COLUMBIA THERE IS NOW BEING CONCEALED CERTAIN PROPERTY,
NAMELY HERION, SYRINGES, TOURNIQUETS, COOKERS AND PARAPHERNALIA USED IN
THE PREPARATION OF HERION FOR RETAIL AND ANY OTHER PARAPHERNALIA USED
IN THE PREPARATION AND DISPENSATION OF HEROIN AND ANY OTHER NARCOTIC
DRUGS ILLEGALLY HELD, WHICH ARE IN VIOLATION OF TITLE 26 U.S.C. SECTION
4704(A). 

"AND THAT THE FACTS TENDING TO ESTABLISH THE FOREGOING GROUNDS FOR
ISSUANCE OF A SEARCH WARRANT ARE AS FOLLOWS: SEE THE FACTS SET FORTH IN
THE AFFIDAVIT ATTACHED HERETO AND MADE A PART HERE OF

              /S/  MARION L. GREEN

              MARION L. GREEN

  MPD" 

/13/  THE AFFIDAVIT STATES SPECIFICALLY: 

"I, THE UNDERSIGNED OFFICER WHO IS ASSIGNED TO THE THIRD DISTRICT
VICE SQUAD, METROPOLITAN POLICE DEPARTMENT, AND WORKING IN THE CITY OF
WASHINGTON, D.C. IN AN UNDERCOVER CAPACITY WHERE ILLEGAL DRUGS ARE SOLD
AND POSSESSED IN VIOLATION OF THE U.S.C.  TITLE 26, SECTION 4704A.  HAD
THE OCCASION TO INVESTIGATE THE FOLLOWING OFFENSE." 

/14/  THE WARRANT READ IN ITS ENTIRETY: 

"TO CHIEF OF POLICE OR ANY MEMBER OF MPDC 

"AFFIDAVIT HAVING BEEN MADE BEFORE ME BY PLC.  MARRION (SIC) L.
GREEN, JR. THIRD DISTRICT VICE SQUAD THAT HE (HAS REASON TO BELIEVE)
THAT (ON THE PREMISES KNOWN AS) 1419 CHAPIN STREET, N.W., AS YOU ENTER
THE BUILDING LAST APARTMENT ON THE RIGHT NEXT TO THE ELEVATOR ON THE
FIRST FLOOR, WASHINGTON IN THE DISTRICT OF COLUMBIA THERE IS NOW BEING
CONCEALED CERTAIN, PROPERTY, NAMELY HEROIN, CAPSULES, ENVELOPES,
SYRINGES, TOURNIQUETS, COOKERS AND PARAPHERNALIA USED IN THE
PREPARATION OF HEROIN FOR DISTRIBUTION OR USE AND ANY OTHER
INSTRUMENTALITIES OR EVIDENCE OF ILLEGAL POSSESSION OR DISPENSATION OF
HEROIN OR OF ANY OTHER NARCOTIC DRUGS ILLEGALLY HELD.  SEE THE FACTS
SET FORTH IN THE AFFIDAVIT ATTACHED HERETO AND MADE A PART HEREOF WHICH
ARE IN VIOLATION OF TITLE 26 SECTION 4704(A) OF THE U.S. CODE, AND AS I
AM SATISFIED THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT THE PROPERTY
SO DESCRIBED IS BEING CONCEALED ON THE (PREMISES) ABOVE DESCRIBED AND
THAT THE FOREGOING GROUNDS FOR APPLICATION FOR ISSUANCE OF THE SEARCH
WARRANT EXIST. 

"YOU ARE HEREBY COMMANDED TO SEARCH FORTHWITH THE (PLACE) NAMED FOR
THE PROPERTY SPECIFIED, SERVING THIS WARRANT AND MAKING THE SEARCH (AT
ANY TIME IN THE DAY OR NIGHT /1/) AND IF THE PROPERTY BE FOUND THERE TO
SEIZE IT, LEAVING A COPY OF THIS WARRANT AND A RECEIPT FOR THE PROPERTY
TAKEN, AND PREPARE A WRITTEN INVENTORY OF THE PROPERTY SEIZED AND
RETURN THIS WARRANT AND BRING THE PROPERTY BEFORE ME WITHIN TEN DAYS OF
THIS DATE, AS REQUIRED BY LAW. 

"DATED THIS DAY OF FEB. 11, 1971

              /S/  LAWRENCE S. MARGOLIS

        U.S. COMMISSIONER" 

"/1/  THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDED: 'THE WARRANT
SHALL DIRECT THAT IT BE SERVED IN THE DAYTIME, BUT IF THE AFFIDAVITS
ARE POSITIVE THAT THE PROPERTY IS ON THE PERSON OR IN THE PLACE TO BE
SEARCHED, THE WARRANT MAY DIRECT THAT IT BE SERVED AT ANY TIME."  (RULE
41C)." 

/15/  REPLY BRIEF FOR PETITIONER 8. 

/16/  THE GOVERNMENT CONTENDS IN ITS BRIEF, APPARENTLY FOR THE FIRST
TIME IN THE COURSE OF THIS LITIGATION, THAT THE SEARCH WAS NOT IN FACT
A NIGHTTIME SEARCH.  THE PRIMIARY BASIS FOR THIS ARGUMENT IS REVISED
FED. RULE CRIM. PROC. 41 WHICH STATES THAT "THE TERM 'DAYTIME' IS USED
IN THIS RULE TO MEAN THE HOURS FROM 6:00 A.M. TO 10:00 P.M. ACCORDING
TO LOCAL TIME."  SEE N. 6, SUPRA.  IN VIEW OF OUR CONCLUSION THAT THE
STANDARDS FOR A NIGHTTIME AS WELL AS A DAYTIME SEARCH UNDER 21 U.S.C.
879(A) WERE MET IN THIS CASE, WE DO NOT NEED TO RESOLVE THIS ISSUE. 

/17/  4704.  PACKAGES. 

"(A) GENERAL REQUIREMENT. 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO PURCHASE, SELL, DISPENSE, OR
DISTRIBUTE NARCOTIC DRUGS EXCEPT IN THE ORIGINAL STAMPED PACKAGE OR
FROM THE ORIGINAL STAMPED PACKAGE; AND THE ABSENCE OF APPROPRIATE
TAXPAID STAMPS FROM NARCOTIC DRUGS SHALL BE PRIMA FACIE EVIDENCE OF A
VIOLATION OF THIS SUBSECTION BY THE PERSON IN WHOSE POSSESSION THE SAME
MAY BE FOUND." 

/18/  "174.  SAME; PENALTY; EVIDENCE. 

"WHOEVER FRAUDULENTLY OR KNOWINGLY IMPORTS OR BRINGS ANY NARCOTIC
DRUG INTO THE UNITED STATES OR ANY TERRITORY UNDER ITS CONTROL OR
JURISDICTION, CONTRARY TO LAW, OR RECEIVES, CONCEALS, BUYS, SELLS, OR
IN ANY MANNER FACILITATES THE TRANSPORTATION, CONCEALMENT, OR SALE OF
ANY SUCH NARCOTIC DRUG AFTER BEING IMPORTED OR BROUGHT IN, KNOWING THE
SAME TO HAVE BEEN IMPORTED OR BROUGHT INTO THE UNITED STATES CONTRARY
TO LAW, OR CONSPIRES TO COMMIT ANY OF SUCH ACTS IN VIOLATION OF THE
LAWS OF THE UNITED STATES, SHALL BE IMPRISONED NOT LESS THAN FIVE OR
MORE THAN TWENTY YEARS AND, IN ADDITION MAY BE FINED NOT MORE THAN
$20,000.  FOR A SECOND OR SUBSEQUENT OFFENSE (AS DETERMINED UNDER
SHALL BE IMPRISONED NOT LESS THAN TEN OR MORE THAN FORTY YEARS AND, IN
ADDITION, MAY BE FINED NOT MORE THAN $20,000." 

/19/  PETITIONER ALSO CONTENDED THAT THE OFFICERS ENTERED THE
APARTMENT WITHOUT KNOCKING AND WITHOUT HAVING A "NO-KNOCK" WARRANT AND
THAT THE POLICE HAD NO PROBABLE CAUSE TO SEARCH HIM.  NEITHER COURT
BELOW PASSED UPON THE SUFFICIENCY OF THESE CONTENTIONS, AND THEY ARE
NOT BEFORE US HERE. 

/20/  328 F. SUPP., AT 1007. 

/21/  ID., AT 1008 N.1. 

/22/  ID., AT 1008. 

/23/  155 U.S. APP. D.C. 259, 477 F.2D 428 (1973). 

/24/  JUDGE WILKEY STATED IN HIS OPINION: "WE HOLD THAT THE
APPLICABLE STATUTE, 21 U.S.C. 879(A), REQUIRES ONLY A SHOWING OF
PROBABLE CAUSE TO BELIEVE THAT THE NARCOTICS WILL BE FOUND ON THE
PREMISES AT ANY TIME OF THE DAY OR NIGHT."  ID., AT 266, 477 F.2D, AT
435.  JUDGE FAHY IN HIS OPINION STATED: "THUS, IN THE CASE OF
NARCOTICS, PREVIOUSLY UNDER SECTION 1405(1) AND LATER UNDER SECTION
879(A), IF THE JUDGE WAS SATISFIED 'THAT THERE IS PROBABLE CAUSE TO
BELIEVE' RATHER THAN 'IF THE AFFIDAVITS ARE POSIRIVE' THAT THE
'PROPERTY IS ON THE PERSON OR IN THE PLACE TO BE SEARCHED,' THE WARRANT
COULD PERMIT EXECUTION AT ANY TIME".  ID., AT 268, 477 F.2D, AT 437. 

/25/  JUDGE ROBINSON CONCLUDED: "THE TEST OF REASONABLE CAUSE FOR
NIGHTTIME EXECUTION DOES NOT DEMAND A DEMONSTRATION THAT DRUGS ARE
POSITIVELY ON THE PREMISES AT NIGHT, OR THAT THEY COULD BE FOUND ON THE
PREMISES ONLY AT NIGHT, OR THAT FOR SOME REASON A SEARCH WOULD BE
IMPOSSIBLE IN THE DAYTIME.  IT DOES SUMMON SOME FACTUAL BASIS FOR A
PRUDENT CONCLUSION THAT THE GREATER INTRUSIVENESS OF NIGHTTIME
EXECUTION OF THE WARRANT IS JUSTIFIED BY THE EXIGENCIES OF THE
SITUATION."  ID., AT 274, 477 F.2D, AT 443.  JUDGE ROBINSON THEN WENT
ON TO FIND THAT A PROPER SHOWING HAD BEEN MADE IN THIS CASE.  HE
STATED: "WHERE, AS HERE, IT APPEARS THAT A SEARCH IS CALCULATED NOT
ONLY TO GATHER EVIDNECE OF PAST CRIME BUT ALSO TO TERMINATE A SERIOUS
SPECIES OF ONGOING CRIMINALITY, REASONABLE CAUSE FOR A NOCTURNAL
INTRUSION IS DEMONSTRATED."  ID., AT 275, 477 F.2D, AT 444. 

/26/  WE ARE THEREFORE NOT REQUIRED TO REACH THE GOVERNMENT'S
ARGUMENT THAT, DESPITE THE FACT THAT THE APPLICATION FOR THE SEARCH
WARRANT ALLEGED A VIOLATION OF THE U.S. CODE, THE SEARCH COULD BE
JUSTIFIED UNDER D.C. CODE 33 - 414 AS A SEARCH FOR VIOLATIONS OF LOCAL
DRUG LAWS. 

/27/ THE PROVISIONS OF 21 U.,S.C. 879(A) PREVAIL OVER THE PROVISIONS
OF FED,. RULE CRIM. PROC. 41 WHEN CONTROLLED SUBSTANCES ARE INVOLVED. 
SEE NN. 10 AND 11, SUPRA. 

/28/  SEE N. 9, SUPRA. 

/29/  FOR EXAMPLE, JOHN INGERSOLL, DIRECTOR OF THE BUREAU OF
NARCOTICS AND DANGEROUS DRUGS, STATED AT THE HEARINGS ON DRUG ABUSE
CONTROL AMENDMENTS--1970 BEFORE THE SUBCOMMITTEE ON PUBLIC HEALTH AND
WELFARE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 91ST
CONG., 2D SESS., SER.  91 - 45, PT. 1, P. 86 (1970), THAT THE NO-KNOCK
PROVISION, INCORPORATED IN 702(B) OF THE PROPOSED BILL, SEE N. 32,
INFRA, WOULD GRANT AUTHORITY "RESTRICTED TO SPECIAL AGENTS OF THE
BUREAU OF NARCOTICS AND DANGEROUS DRUGS."  IN ADDITION, THE PRECEDING
PROVISION OF THE BILL SET FORTH EXPANDED POWERS FOR THE AGENTS OF THE
BNDD.  HOWEVER, ALTHOUGH THESE EXCERPTS WOULD ARGUE FOR PETITIONER'S
POSITION HERE, WE BELIEVE THAT THE GOVERNMENT'S POSITION ULTIMATELY
PROVES TO BE STRONGER.  WE BELIEVE FOR THE REASONS STATED IN THE TEXT
THAT THE EMPHASIS ON THE POWERS OF THE BNDD AGENTS WAS NOT INTENDED TO
REMOVE POWERS FROM OTHER FEDERAL AGENTS WHO HAD PREVIOUSLY ASSISTED IN
THE ENFORCEMENT OF FEDERAL DRUG LAWS.  SEE ALSO 18 U.S.C. 3052, 5053,
AND 3056, SETTING FORTH ARREST POWERS FOR AGENTS OF THE FEDERAL BUREAU
OF INVESTIGATION, UNITED STATES MARSHALL, AND SECRET SERVICE AGENTS. 

/30/  S. REP. NO. 91 - 613, P. 3 (1969). 

/31/  D.C. CODE 4 - 138 PROVIDES: 

"ANY WARRANT FOR SEARCH OR ARREST, ISSUED BY ANY MAGISTRATE OF THE
DISTRICT, MAY BE EXECUTED IN ANY PART OF THE DISTRICT BY ANY MEMBER OF
THE POLICE FORCE, WITHOUT ANY BANKING OR INDORSEMENT OF THE WARRANT,
AND ACCORDING TO THE TERMS THERE; AND ALL PROVISIONS OF LAW IN RELATION
TO BAIL IN THE DISTRICT SHALL APPLY TO THIS CHAPTER."  SEE THOMAS V.
UNITED STATES, 409 U.S. 992, 993 (1973) (DOUGLAS J., DISSENTING). 

/32/  879.  SEARCH WARRANTS. 

"(B) ANY OFFICER AUTHORIZED TO EXECUTE A SEARCH WARRANT RELATING TO
OFFENSES INVOLVING CONTROLLED SUBSTANCES THE PENALTY FOR WHICH IS
IMPRISONMENT FOR MORE THAN ONE YEAR MAY, WITHOUT NOTICE OF HIS
AUTHORITY AND PURPOSE, BREAK OPEN AN OUTER OR INNER DOOR OR WINDOW OF A
BUILDING, OR ANY PART OF THE BUILDING, OR ANYTHING THEREIN, IF THE
JUDGE OR UNITED STATES MAGISTRATE ISSUING THE WARRANT (1) IS SATISFIED
THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT (A) THE PROPERTY SOUGHT
MAY AND, IF SUCH NOTICE IS GIVEN, WILL BE EASILY AND QUICKLY DESTROYED
OR DISPOSED OF, OR (B) THE GIVING OF SUCH NOTICE WILL IMMEDIATELY
ENDANGER THE LIFE OR SAFETY OF THE EXECUTING OFFICER OR ANY OTHER
PERSON, AND (2) HAS INCLUDED IN THE WARRANT A DIRECTION THAT THE
OFFICER EXECUTING IT SHALL NOT BE REQUIRED TO GIVE SUCH NOTICE.  ANY
OFFICER ACTING UNDER SUCH WARRANT, SHALL, AS SOON AS PRACTICABLE AFTER
ENTERING THE PREMISES, IDENTIFY HIMSELF AND GIVE THE REASONS AND
AUTHORITY FOR HIS ENTRANCE UPON THE PREMISES." 

SEE H.R. REP. NO. 91 - 1444, P. 25 (1970), WHICH STATED: 

"THE PURPOSE OF THIS PROVISION (THE NO-KNOCK PROVISION), AS
EXPLAINED IN THE HEARINGS, IS TO PROVIDE LAW ENFORCEMENT OFFICIALS WITH
A TOOL TO AID IN COMBATTING THE ILLICIT TRAFFIC IN DRUGS WHICH HAS
PROVED HELPFUL IN ALL OF THE 29 STATES WHERE THIS AUTHORITY EXISTS
EITHER BY STATUTE OR COMMON LAW." 

/33/  SEE ATTY. GEN. ORDER 510 - 73, 38 FED. REG. 7244 - 7245. 

/34/  THE EFFECT OF TITLE 23 ON OTHER STATUTES WAS DEBATED IN SOME
DETAIL BELOW.  JUDGE WILKEY IN HIS OPINION NOTED THAT THE PROVISIONS OF
21 U.S.C. 879(A) WERE NOT ONLY ENACTED AFTER THE PROVISIONS OF TITLE 23
(ALTHOUGH THEY TOOK EFFECT SOONER), BUT ALSO ARE MORE SPECIFIC IN TERMS
OF SUBJECT MATTER, I.E., DRUG CONTROL.  155 U.S. APP. D.C., AT 262, 477
F.2D, AT 431.  THUS, AS A MATTER OF STATUTORY CONSTRUCTION, IT IS
SOMEWHAT DIFFICULT TO SEE HOW TITLE 23 WAS INTENDED TO MODIFY ANY
LATER, MORE SPECIFIC STATUTE.  PETITIONER NO LONGER SUGGESTS THAT TITLE
23 MUST BE READ INTO THE PROVISIONS OF 21 U.S.C. 879(A).  HE CONTENDS
EITHER THAT TITLE 23 IS APPLICABLE IN ITS ENTIRETY OR THAT 879(A) BY
ITS OWN TERMS REQUIRES A SPECIAL SHOWING FOR SEARCHES AT NIGHT. 

/35/  D.C. CODE 11 - 901. 

/36/  "RULE 41.  SEARCH AND SEIZURE. 

"(A) AUTHORITY TO ISSUE WARRANT.  A SEARCH WARRANT AUTHORIZED BY
THIS RULE MAY BE ISSUED BY A JUDGE OF THE SUPERIOR COURT. 

"(B) GROUNDS FOR ISSUANCE.  A WARRANT MAY BE ISSUED UNDER THIS RULE
TO SEARCH FOR AND SEIZE PROPERTY.  PROPERTY IS SUBJECT TO SEIZURE
PURSUANT TO A SEARCH WARRANT IF THEREIS PROBABLE CAUSE TO BELIEVE THAT
IT (1) IS STOLEN OR EMBEZZLED; OR (2) IS CONTRABAND OR OTHERISE
ILLEGALLY POSSESSED; OR (3) HAS BEEN UED OR IS POSSESSED FOR THE
PURPOSE OF BEING USED, OR IS DESIGNED OR INTENDED TO BE USED, TO COMMIT
OR CONCEAL THE COMMISSION OF AN OFFENSE; OR (4) CONSTITUTES EVIDENCE OF
OR TENDS TO DEMONSTRATE THE COMMISSION OF AN OFFENSE OR THE IDENTITY OF
A PERSON PARTICIPATING IN THE COMMISSION OF AN OFFENSE.     "(C)
APPLICATION FOR SEARCH WARRANTS.  EACH APPLICATION FOR A SEARCH WARRANT
SHALL BE MADE IN WRITING UPON OATH TO A JUDGE OF THE SUPERIOR COURT. 
EACH APPLICATION SHALL INCUDE THE NAME AND TITLE OF THE APPLICANT; A
STATEMENT THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT PROPERTY
DESCRIBED IN PARAGRAPH (B) AS SUBJECT TO SEIZURE IS LIKELY TO BE FOUND
IN A DESIGNATED PREMISE, IN A DESIGNATED VEHICLE OR OBJECT, OR UPON
DESIGNATED PERSONS; ALLEGATIONS OF FACT SUPPORTING SUCH STATEMENT; AND
A REQUEST THAT THE JUDGE ISSUE A SEARCH WARRANT DIRECTING A SEARCH FOR
AND SEIZURE OF THE PROPERTY IN QUESTION.  THE APPLICANT MAY ALSO SUBMIT
DEPOSITIONS OR AFFIDAVITS OF OTHER PERSONS CONTAINING ALLEGATIONS OF
FACT SUPPORTING OR TENDING TO SUPPORT THOSE CONTAINED IN THE
APPLICATION. 

"THE APPLICATION MAY ALSO CONTAIN (1) A REQUEST THAT THE SEARCH
WARRANT BE MADE EXECUTABLE AT ANY HOUR OF THE DAY OR NIGHT, UPON THE
GROUND THAT (I) THERE IS PROBABLE CAUSE TO BELIEVE THAT IT CANNOT BE
EXECUTED DURING THE HOURS OF DAYLIGHT.  OR (II) THE PROPERTY SOUGHT IS
LIKELY TO BE REMOVED OR DESTROYED IF NOT SEIZED FORTHWITH, OR (III) THE
PROPERTY SOUGHT IS NOT LIKELY TO BE FOUND EXCEPT AT CERTAIN TIMES OR IN
CERTAIN CIRCUMSTANCES; AND (2) A REQUEST APPROVED BY AN APPROPRIATE
PROSECUTOR THAT THE SEARCH WARRANT AUTHORIZE THE EXECUTING OFFICER TO
BREAK AND ENTER DWELLING HOUSES OR OTHER BUILDINGS OR VEHICLES TO BE
SEARCHED WITHOUT GIVING NOTICE OF HIS IDENTITY AND PURPOSE, UPON
PROBABLE CAUSE TO BELIEVE THAT ONE OF THE CONDITIONS LISTED IN
SUBPARAGRAPHS (A), (B), OR (D) OR D.C. CODE 23 - 591(C) (2) IS LIKELY
TO EXIST AT THE TIME AND PLACE AT WHICH SUCH WARRANT IS TO BE EXECUTED
WHEREBY THE APPLICANT MAY DISPENSE WITH SUCH REQUIREMENT.  ANY REQUEST
THAT A SEARCH WARRANT BE EXECUTABLE AT ANY TIME OF THE DAY OR NIGHT OR
THAT A SEARCH WARRANT AUTHORIZE THE EXECUTING OFFICER TO BREAK AND
ENTER WITHOUT A PRIOR ANNOUNCEMENT OF HIS IDENTITY AND PURPOSE MUST BE
ACCOMPANIED AND SUPPORTED BY ALLEGATIONS OF FACT SUPPORTING SUCH
REQUEST."  EFFECTIVE OCT. 25, 1973, PARAGRAPH (B) OF THIS RULE WAS
AMENDED.  PARAGRAPHS (A) AND (C) WERE UNCHANGED. 

/37/  WE NOTE THAT THE DISTRICT OF COLUMBIA COURT OF APPEALS HAS
INDICATED THAT THE SPECIFIC PROVISIONS OF TITLE 33 ARE NOT QUALIFIED BY
THE MORE GENERAL PROVISIONS OF TITLE 23 IN SEARCHES FOR VIOLATIONS OF
THE LOCAL DRUG LAWS IN THE DISTRICT OF COLUMBIA.  SEE UNITED STATES V.
THOMAS, 294 A. 2D 164, 167 - 168, CERT. DENIED, 409 U.S. 992 (1973). 

/38/  SEE FED. RULE CRIM. PROC. 41(H), SUPRA, N. 6.  SEE ALSO
SUBSECTION (G) OF PRIOR RULE 41, N. 5, SUPRA. 

/39/  S. REP. NO. 91 - 613, PP. 30 - 31 (1969).  SEE ALSO H.R. REP.
NO. 91 - 1444, PT. 1, P. 54 (1970). 

/40/  SEE N. 11, SUPRA. 

/41/  THE DEBATES ON THIS CONTROVERSIAL PROPOSAL MAY BE FOUND
GENERALLY IN VOLUME 116 OF THE CONGRESSIONAL RECORD.  SEE, E.G., 116
CONG. REC. 1159 - 1162, 1164, - 1177, 33639 - 33645. 

/42/  WE NOTE THAT THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS
RECENTLY REACHED THE SAME CONCLUSION.  SEE UNITED STATES V. THOMAS, 489
F.2D 664 (1973). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

THE PETITIONER IS CHARGED WITH POSSESSION OF HEROIN AND NARCOTICS
PARAGHERNALIA IN VIOLATION OF 21 U.S.C. 174 (1964 ED.)  AND 26 U.S.C.
4704(A) (1964 ED.).  HE MOVED THE DISTRICT COURT TO SUPPRESS CERTAIN
EVIDENCE SEIZED FROM HIS HOME PURSUANT TO A SEARCH WARRANT SECURED BY
AND DIRECTED TO THE METROPOLITAN POLICE DEPARTMENT OF THE DISTRICT OF
COLUMBIA.  THE DISTRICT COURT GRANTED THE SUPPRESSION MOTION ON THE
GROUND THAT THE SEARCH WAS CONDUCTED AT NIGHT IN VIOLATION OF D.C. CODE
23 - 521 - 523 (1973) WHICH LIMIT SEARCH WARRANT EXECUTION TO DAYLIGHT
HOURS ABSENT SPECIFIC CONTRARY AUTHORIZATION FOUNDED UPON THE JUDICIAL
OFFICER'S DETERMINATION 

"THAT (A) IT CANNOT BE EXECUTED DURING THE HOURS OF DAYLIGHT, (B)
THE PROPERTY SOUGHT IS LIKELY TO BE REMOVED OR DESTROYED IF NOT SEIZED
FORTHWITH, OR (C) THE PROPERTY SOUGHT IS NOT LIKELY TO BE FOUND EXECPT
AT CERTAIN TIMES OR IN CERTAIN CIRCUMSTANCES.  . . ."  D.C. CODE 23 -
522(C)(1).  /1/ 

THOUGH THE WARRANT HERE DIRECTED A SEARCH "AT ANY TIME IN THE DAY OR
NIGHT," NONE OF THE GROUNDS SET FORTH IN 522(C)(1) WERE CONTAINED IN
EITHER THE APPLICATION OR THE WARRANT ITSELF.  THE POLICE OBTAINED THE
WARRANT ON FEBRUARY 11, 1971, BUT THEY FAILED TO EXECUTE IT DURING THE
DAY OF FEBRUARY 12, WAITING INSTEAD UNTIL 9:30 P.M. ON THAT DATE. 
SINCE THEY DELAYED EXECUTION UNTIL WELL AFTER THE DAYLIGHT HOURS HAD
ENDED, THE SEIZURE WAS INVALID IF GOVERNED BY D.C. CODE 23 - 521 -
523. 

THE COURT HOLDS, HOWEVER, THAT THE D.C. CODE PROVISIONS ARE
INAPPLICABLE AND THAT THE SEARCH IS GOVERNED BY 21 U.S.C. 879(A).  THAT
SUBSTANCES ACT, 84 STAT. 1242, 21 U.S.C. 801 ET SEQ.; IT RELATES TO
SEARCH WARRANTS ISSUED IN CONNECTION WITH OFFENSES INVOLVING CONTROLLED
SUBSTANCES.  THE D.C. CODE PROVISIONS, HOWEVER, BECAME EFFECTIVE
FEBRUARY 11, 1971, AS PART OF THE DISTRICT OF COLUMBIA COURT REFORM AND
CRIMINAL PROCEDURE ACT.  THE ACT DID NOT DISTINGUISH BETWEEN LOCAL AND
FEDERAL PROSECUTIONS IN ITS PROCEDURAL INNOVATIONS.  /2/  THE PURPOSE
OF THE RESTRICTION UPON NIGHTTIME SEARCHES WAS TO LIMIT SUCH INTRUSIONS
TO THOSE INSTANCES WHERE THERE IS "SOME JUSTIFICATION FOR IT,"  /3/
THUS IMPLEMENTING THE "POLICY GENERALLY DISFAVORING NIGHTTIME
EXECUTIONS, NIGHTTIME INTRUSIONS, MORE CHARACTERISTIC OF A 'POLICE
STATE' LACKING IN THE RESPECT FOR DUE PROCESS AND THE RIGHT OF PRIVACY
DICTATED BY THE U.S. CONSTITUTION AND HISTORY.  . . ."  /4/ 

APPROXIMATELY 60% OF THE SEARCH WARRANTS ISSUED IN THE DISTRICT OF
COLUMBIA RELATE TO NARCOTICS VIOLATIONS.  CONGRESS WAS AWARE OF THIS,
AND, IF IT HAD INTENDED TO EXECEPT FEDERAL NARCOTICS SEARCH WARRANTS
FROM THE PROTECTIONS AGAINST UNNECESSARY NIGHTTIME "POLICE STATE"
SEARCHES, ONE WOULD EXPECT AN EXPRESSION OF SUCH INTENT.  I AGREE WITH
JUDGE GESELL THAT NO SUCH INTENT IS INDICATED.  THUS, WHATEVER BE THE
STANDARDS GENERALLY FOR ISSUANCE OF A NIGHTTIME SEARCH WARRANT IN
FEDERAL NARCOTICS CASES IN OTHER PARTS OF THE COUNTRY . . . THE
EXISTENCE OF 21 U.S.C. 879(A) DOES NOT REMOVE SUCH CASES FROM THE
EXPLICIT REQUIREMENTS FOR SEARCH WARRANTS IN THE DISTRICT OF COLUMBIA
UNDER THE NEWLY ENACTED TITLE 23, D.C. CODE."  328 F. SUPP. 1005,
1007.  I WOULD REVERSE THE COURT OF APPEALS AND SUSTAIN THE DISTRICT
COURT'S SUPPRESSION ORDER. 

/1/  D.C. CODE 23 - 523(B) DIRECTS THAT ALL SEARCH WARRANTS ARE TO
BE EXECUTED ONLY DURING DAYLIGHT HOURS, ABSENT EXPRESS AUTHORIZATION
PURSUANT TO D.C. CODE 23 - 521(F).  SECTION 521 (F)(5) ALLOWS
AUTHORIZATION FOR NIGHTTIME EXECUTION WHERE THE "JUDICIAL OFFICER HAS
FOUND CASUE THEREFOR, INCLUDING ONE OF THE GROUNDS SET FORTH IN SECTION
23 - 522(C)(1) . . . ." 

/2/  THUS VARIOUS RULES ARE APPLICABLE IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA WHICH ARE NOT APPLICABLE IN DISTRICT
COURTS ELSEWHERE IN THE COUNTRY.  SEE, E.G., D.C. CODE 23 - 1322,
DEALING WITH DETENTION PRIOR TO TRIAL. 

/3/  HEARINGS ON CRIME IN THE NATIONAL CAPITAL BEFORE THE SENATE
COMMITTEE ON THE DISTRICT OF COLUMBIA, 91ST CONG., 1ST SESS., PT. 4, P.
1404 (1969). 

/4/  S. REP. NO. 91 - 538, 12 (1969). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

I AGREE WITH MY BROTHER DOUGLAS THAT THE PROVISIONS OF THE DISTRICT
OF COLUMBIA CODE REQUIRING A SHOWING OF NEED FOR EXECUTION OF A SEARCH
WARRANT AT NIGHT GOVERN THE SEARCH INVOLVED IN THIS CASE, AND
ACCORDINGLY, I JOIN IN HIS DISSENTING OPINION.  A MAJORITY OF THE
COURT, HOWEVER, REJECTS THIS ARGUMENT AND GOES ON TO DISCUSS THE
STANDARDS IMPOSED BY 21 U.S.C. 879(A) UPON ISSUANCE OF SEARCH WARRANTS
FOR NIGHTTIME EXECUTION IN FEDERAL NARCOTICS CASES.  OBVIOUSLY, THE
COURT'S INTERPRETATION OF 879(A) IS OF FAR GREATER SIGNIFICANCE, OF
NATIONAL RATHER THAN PURELY LOCAL CONCERN.  I CANNOT LET THE COURT'S
CONSTRUCTION OF 879(A) PASS WITHOUT REGISTERING MY DISSENT ON THIS
ISSUE AS WELL. 

THE OPINION OF THE COURT, IT SEEMS TO ME, ANALYZES THE 879(A) ISSUE
IN A VACUUM, WITHOUT ANY DISCUSSION OF SOME OF THE IMPORTANT POLICY
CONSIDERATIONS WHICH UNDERLIE THIS QUESTION OF STATUTORY
INTERPRETATION.  PERHAPS A PARTIAL VACUUM WOULD BE A MORE APPROPRIATE
DESCRIPTION, SINCE THE COURT IS OBVIOUSLY FULLY COGNIZANT OF THE
SUBSTANTIAL GOVERNMENTAL INTEREST IN ENFOCEMENT OF THE NARCOTICS LAWS,
AN INTEREST WHICH ITS INTERPRETATION OF 879(A) SO WELL SERVES.  BUT
PLAINLY THERE ARE OTHER CONCERNS IMPLICATED IN OUR INTERPRETATION OF
THIS CONGRESSIONAL ENACTMENT RESTRICTING THE ISSUANCE OF SEARCH
WARRANTS--THE PROTECTION OF INDIVIDUAL PRIVACY WHICH IS THE VERY
PURPOSE OF THE STATUTE'S SEARCH WARRANT REQUIREMENT AND WHICH OF COURSE
IS GIVEN CONSTITUTIONAL RECOGNITION IN THE FOURTH AMENDMENT.  THE COURT
SEEMS TOTALLY OBLIVIOUS TO THESE CONSTITUTIONAL CONSIDERATIONS TAKING
THEM INTO ACCOUNT, I FIND THAT THE ONLY ACCEPTABLE INTERPRETATION OF
THE STATUTE IS ONE WHICH REQUIRES SOME ADDITIONAL JUSTIFICATION FOR
AUTHORIZING A NIGHTTIME SEARCH OVER AND ABOVE THE ORDINARY SHOWING OF
PROBABLE CAUSE TO BELIEVE THAT A CRIME HAS BEEN COMMITTED AND THAT
EVIDENCE OF THE CRIME WILL BE FOUND UPON THE SEARCH. 

FUNDAMENTALLY AT ISSUE IN THIS CASE IS THE EXTENT OF THE PROTECTION
WHICH WE WILL ALL ENJOY FROM POLICE INTRUSION INTO THE PRIVACY OF OUR
HOMES DURING THE MIDDLE OF THE NIGHT.  THE FOURTH AMENDMENT WAS
INTENDED TO PROTECT OUR REASONABLE EXPECTATIONS OF PRIVACY FROM
UNJUSTIFIED GOVERNMENTAL INTRUSION.  KATZ V. UNITED STATES, 389 U.S.
347, 360 - 362 (1967) (HARLAN, J., CONCURRING).  IN MY VIEW, THERE IS
NO EXPECTATION OF PRIVACY MORE REASONABLE AND MORE DEMANDING OF
CONSTITUTIONAL PROTECTION THAN OUR RIGHT TO EXPECT THAT WE WILL BE LET
ALONE IN THE PRIVACY OF OUR HOMES DURING THE NIGHT.  THE IDEA OF THE
POLICE UNNECESSARILY FORCING THEIR WAY INTO THE HOME IN THE MIDDLE OF
THE NIGHT--FREQUENTLY, IN NARCOTICS CASES, WITHOUT KNOCKING AND
ANNOUNCING THEIR PURPOSE--ROUSING THE RESIDENTS OUT OF THEIR BEDS, AND
FORCING THEM TO STAND BY IN INDIGNITY IN THEIR NIGHT CLOTHES WHILE THE
POLICE RUMMAGE THROUGH THEIR BELONGINGS DOES INDEED SMACK OF A "'POLICE
STATE' LACKING IN THE RESPECT FOR . . . THE RIGHT OF PRIVACY DICTATED
BY THE U.S. CONSTITUTION."  S. REP. NO. 91 - 538, P. 12 (1969).  THE
PUBLIC OUTRAGE AT THE SERIES OF MISTAKEN NIGHTTIME RAIDS BY NARCOTICS
AGENTS IN COLLINSVILLE, ILLINOIS, LAST APRIL, SEE N.Y. TIMES, APR. 29,
1973, P.1, COL. 5; N.Y. TIMES, APR. 30, 1973, P. 30, COL. 1, SERVES TO
EMPHASIZE JUST HOW INCONSISTENT WITH OUR CONSTITUTIONAL GUARANTEES SUCH
NIGHTTIME SEARCHES ARE. 

THIS COURT HAS CONSISTENTLY RECOGNIZED THAT THE INTRUSION UPON
PRIVACY ENGENDERED BY A SEARCH OF A RESIDENCE AT NIGHT IS OF AN ORDER
OF MAGNITUDE GREATER THAN THAT PRODUCED BY AN ORDINARY SEARCH.  MR.
JUSTICE HARLAN OBSERVED IN HOLDING A NIGHTTIME SEARCH UNCONSTITUTIONAL
IN JONES V. UNITED STATES, 357 U.S. 493, 498 (1958): "(IT IS DIFFICULT
TO IMAGINE A MORE SEVERE INVASION OF PRIVACY THAN THE NIGHTTIME
INTRUSION INTO A PRIVATE HOME."  IN COLLIDGE V. NEW HAMPSHIRE, 403 U.S.
443, 477 (1971), THE COURT AGAIN RECOGNIZED THAT A MIDNIGHT ENTRY INTO
A HOME WAS AN "EXTREMELY SERIOUS INTRUSION."  AND OUR DECISION IN
GRISWOLD V. CONNECUTICUT, 381 U.S. 479 (1965), WAS IN LARGE PART BASED
UPON OUR REVULSION AT THE THOUGHT OF NIGHTTIME SEARCHES OF THE MARITAL
BEDROOM TO DISCOVER EVIDENCE OF ILLEGAL CONTRACEPTIVE USE.  SEE ID., AT
485 - 486. 

IT IS SMALL WONDER, THEN, THAT CONGRESS HAS CONSISTENTLY REQUIRED
MORE STRINGENT JUSTIFICATION FOR NIGHTTIME SEARCHES THANT HAT NEEDED TO
AUTHORIZE A SEARCH DURING THE DAY.  THE FIRST CONGRESSIONAL ENACTMENT
SETTING OUT COMPREHENSIVE SEARCH WARRANT PROCEDURES, 10 OF TITLE XI OF
THE ESPIONAGE ACT OF 1917, 40 STAT. 217, 229, 18 U.S.C. 620 (1940 ED.),
REQUIRED THAT THE AFFIANT MUST BE "POSITIVE" THAT THE PROPERTY TO BE
SEIZED WAS ON THE PREMISES TO JUSTIFY A NIGHTTIME SEARCH.  WHEN THE
PROVISIONS OF THE ESPIONAGE ACT WERE REPLACED BY THE FEDERAL RULES OF
CRIMINAL PROCEDURE IN 1946, THIS REQUIREMENT OF POSITIVITY WAS CARRIED
FORWARD IN RULE 41.  DESPITE THE STRINGENCY OF THIS REQUIREMENT, IT
REMAINED WITH US UNTIL VERY RECENTLY, UNTIL THE 1972 AMENDMENTS TO RULE
41.  AND ALTHOUGH THE RULE WAS THEN MODIFIED TO REQUIRE "REASONABLE
CAUSE" FOR NIGHTTIME EXECUTION OF A WARRANT, SIGNIFICANTLY THE AMENDED
RULE RETAINED THE PRINCIPLE THAT NIGHTTIME SEARCHES REQUIRE AN
ADDITIONAL SHOWING OF JUSTIFICATION OVER AND ABOVE PROBABLE CAUSE. 
CONGRESS HAS ALSO MANIFESTED ITS CONCERN FOR PROTECTION OF INDIVIDUAL
PRIVACY AGAINST NIGHTTIME SEARCHES IN TIS LEGISLATION FOR THE DISTRICT
OF COLUMBIA, AS MR. JUSTICE DOUGLAS'  OPINION AMPLY DEMONSTRATES WITH
RESPECT TO ENACTMENT OF THE D.C. COURT REFORM AND CRIMINAL PROCEDURE
ACT IN 1970.  ANTE, AT 460.  /1/ 

THE STRONG POLICY UNDERLYING THESE CONGRESSIONAL ENACTMENTS IS
CLEAR.  AS EVEN THE GOVERNMENT IN THIS CASE CONCEDES, "SEARCHES
CONDUCTED IN THE MIDDLE OF THE NIGHT . . . INVOLVE A GREATER INTRUSION
THAN ORDINARY SEARCHES AND THEREFORE REQUIRE A GREATER JUSTIFICATION." 
BRIEF FOR UNITED STATES 14.  IN MY VIEW, THIS PRINCIPLE MAY WELL BE A
CONSTITUTIONAL INPERATIVE.  IT IS BY NOW ESTABLISHED FOURTH AMENDMENT
DOCTRINE THAT INCREASINGLY SEVERE STANDARDS OF PROBABLE CUASE ARE
NECESSARY TO JUSTIFY INCREASINGLY INTRUSIVE SEARCHES.  IN CAMARA V.
MUNICIPAL COURT, 387 U.S. 523 (1967), AFTER HOLDING THAT SEARCH
WARRANTS WERE REQUIRED TO AUTHORIZE ADMINISTRATIVE INSPECTIONS, WE HELD
THAT THE QUANTUM OF PROBABLE CAUSE REQUIRED FOR ISSUANCE OF AN
INSPECTION WARRANT MUST BE DETERMINED IN PART BY THE REASONABLENESS OF
THE PROPOSED SEARCH.  AS MR. JUSTICE WHITE STATED, "THERE CAN BE NO
READY TEST FOR DETERMINING REASONABLENESS OTHER THAN BY BALANCING THE
NEED TO SEARCH AGAINST THE INVASION WHICH THE SEARCH ENTAILS."  ID., AT
536 - 357.  THE COURT IN CAMARA THUS APPROVED THE ISSUANCE OF AREA
INSPECTION WARRANTS IN PART BECAUSE SUCH SEARCHES "INVOLVE A RELATIVELY
LIMITED INVASION OF THE URBAN CITIZEN'S PRIVACY."  ID., AT 537.  SEE
ALSO TERRY V. OHIO, 392 U.S. 1, 20 - 21 (1968); COUCH V. UNITED STATES,
409 U.S. 322, N. 6 (1973) (MARSHALL, J., DISSENTING).  I DO NOT REGARD
THIS PRINCIPLE AS A ONE-WAY STREET, TO BE USED ONLY TO WATER DOWN THE
REQUIREMENT OF PROBABLE CAUSE WHEN NECESSARY TO AUTHORIZE GOVERNMENTAL
INTRUSIONS.  IN SOME SITUATIONS--AND THE SEARCH OF A PRIVATE HOME
DURING NIGHTTIME WOULD SEEM TO BE A PARADIGM EXEMPLE--THIS PRINCIPLE
REQUIRES A SHOWING OF ADDITIONAL JUSTIFICATION FOR A SEARCH OVER AND
ABOVE THE ORDINARY SHOWING OF PROBABLE CAUSE.  CF. STANFORD V. TEXAS,
379 U.S. 476, 485 - 486 (1965). 

OF COURSE, THIS CONSTITUTIONAL QUESTION IS NOT PRESENTED IN THIS
CASE AND NEED NOT BE RESOLVED HERE.  BUT THE LONG HISTORY OF
CONGRESSIONAL AUTHORIZATION OF NIGHTTIME SEARCHES ONLY UPON A SHOWING
OF ADDITIONAL JUSTIFICATION, THE STRONG CONSTITUTIONALLY BASED POLICY
WHICH THESE STATUTES IMPLEMENT, AND THE SUBSTANTIAL CONSTITUTIONAL
QUESTION POSED BY THE MAJORITY'S INTERPRETATION OF 879(A) ARE SURELY
RELEVANT TO THE QUESTION OF STATUTORY INTERPRETATION WITH WHICH WE ARE
FACED.  VIEWED AGAINST THIS BACKGROUND, I THINK IT IS PLAIN THAT THE
MAJORITY'S INTERPRETATION OF THE STATUTE SHOULD BE REJECTED. 

NIGHT ONLY IF "THERE IS PROBABLE CAUSE TO BELIEVE THAT GROUNDS EXIST
FOR THE WARRANT AND FOR ITS SERVICE AT SUCH TIME."  IT SEEMS TO ME
QUITE CLEAR THAT THE STATUTE, ON ITS FACE, IMPOSES TWO DISTINCT
REQUIREMENTS:  THAT THERE BE PROBABLE CAUSE FOR THE ISSUANCE AT SUCH
TIME."  WHILE THE COURT RELIES ON LEGISLATIVE HISTORY WHICH SUGGESTS
THAT 879(A) MERELY "INCORPORATES" THE PROVISIONS OF ITS PREDECESSOR, 18
U.S.C. 1405 (1964 ED.), THE PLAIN FACT IS THAT 879(A) DOES FAR MORE
THAN THIS: IT ALSO ADDS TO THE LANGUAGE OF 1405 THE FINAL CLAUSE--" AND
FOR ITS SERVICE AT SUCH TIME"--WHICH IS AT THE HEART OF THE DISPUTE IN
THIS CASE.  I CAN SEE NO PLAUSIBLE INTERPRETATION OF THIS FINAL CLAUSE
OTHER THAN THAT IT IMPOSES AN ADDITIONAL REQUIREMENT OF JUSTIFICATION
FOR A SEARCH AT NIGHT OVER AND ABOVE A SHOWING OF PROBABLE CAUSE. 

THE COURT, WHILE CONCEDING THIS TO BE A "POSSIBLE"  MEANING OF THE
STATUTE'S FINAL CLAUSE, ARGUES THAT "IT IS THE WORDS."  ANTE, AT 455. 
UNFORTUNATELY, THE COURT THEN FAILS TO COME FORWARD WITH ANY
ALTERNATIVE INTERPRETATION OF THESE FINAL WORDS OF 879(A).  INSTEAD,
THE COURT SIMPLY READS THE DISPUTED LANGUAGE OUT OF THE STATUTE
ENTIRELY, AND DECREES THAT THE STATUTE SHALL BE INTERPRETED AS IF IT
WERE NOT THERE.  THE COURT HOLDS THAT THE STATUTE REQUIRES ONLY "A
SHOWING THAT THE CONTRABAND IS LIKELY TO BE ON THE PROPERTY OR PERSON
TO BE SEARCHED AT THAT TIME" TO JUSTIFY NIGHTTIME EXECUTION OF A SEARCH
WARRANT.  ANTE, AT 458.  BUT THE SHOWING OF PROBABLE CAUSE REQUIRED FOR
ISSUANCE OF ANY WARRANT NECESSARILY INCLUDES A SHOWING THAT THE OBJECTS
TO BE SEIZED WILL PROBABLY BE FOUND ON THE PREMISES AT THE TIME OF THE
SEARCH.  SEE SGRO V. UNITED STATES, 287 U.S. 206, 210 - 211 (1932);
SCHOENEMAN V. UNITED STATES, 115 U.S. APP. D.C. 110, 113, 317 F.2D 173,
176 - 177 (1963); ROSENCRANZ V. UNITED STATES, 356 F.2D 310, 315 - 318
(CA1 1966).  THIS REQUIREMENT IS CLEARLY IMPOSED BY THE FOURTH
AMENDMENT ITSELF.  IT IS ALSO CLEARLY MANDATED BY THE FIRST PART OF THE
STATUTORY LANGUAGE, WHICH MERELY INCORPORATES THE CONSTITUTIONAL
REQUIREMENT OF PROBABLE CAUSE FOR ISSUANCE OF THE WARRANT.  THE
MAJORITY'S INTERPRETATION OF THE STATUTE THUS LEAVES THE FINAL CLAUSE
OF 879(A)--THE LANGUAGE IN CONTROVERSY HERE--TOTALLY WITHOUT MEANING. 
SEE UNITED STATES V. THOMAS, 294 A.2D 164, 170 (DC CT. APP.) (KELLY,
J., DISSENTING), CERT. DENIED, 409 U.S. 992 (1972); UNITED STATES V.
GOODING, 155 U.S. APP. D.C. 259, 273, 477 F.2D 428, 442 (19736)
(ROBINSON, J., CONCURRING IN RESULT).  I CANNOT SUBSCRIBE TO SUCH AN
EVISCERATION OF THE STAUTE /2/ 

THE COURT BASES ITS HOLDING UPON THE MEAGER RECORDED LEGISLATIVE
HISTORY OF 879(A).  BUT WHEN THE LANGUAGE OF A STATUTE IS AS CLEAR AND
UNAMBIGUOUS AS IT IS HERE, IT IS NEITHER HELPFUL NOR APPROPRIATE TO
LOOK TO ITS LEGISLATIVE HISTORY.  EX PARTE COLLETT, 337 U.S. 55, 61
(1949); UNITED STATES V. OREGON, 366 U.S. 643, 648 (1961).  WHILE
COMMITTEE REPORTS IN PARTICULAR ARE OFTEN A HELPFUL GUIDE TO THE
MEANING OF AMBIGUOUS STATUTORY LANGUAGE, EVEN THEY MUST BE DISREGARDED
IF INCONSISTENT WITH THE PLAIN LANGUAGE OF THE STATUTE.  HELVERING V.
CITY BANK FARMERS TRUST CO., 296 U.S. 85, 89 (1935); GEORGE VAN CAMP &
SONS CO. V. AMERICAN CAN CO., 278 U.S. 245, 253 - 254 (1929).  IT IS
THE LANGUAGE OF THE STATUTE, AS ENACTED BY THE CONGRESS, THAT IS THE
LAW OF THE LAND, NOT THE LANGUAGE OF A COMMITTEE REPORT WHICH MAY OR
MAY NOT REPRESENT ACCURATELY THE VIEWS OF THE HUNDREDS OF OTHER
LEGISLATORS WHO VOTED FOR THE BILL. 

IN ANY EVENT, EVEN IF RESOURT TO EXAMINATION OF THE LEGISLATIVE
HISTORY WERE APPROPRIATE HERE, I DO NOT FIND IT NEARLY SO CONCLUSIVE AS
DOES THE MAJORITY OF THE COURT.  THE COURT RELIES ON A SINGLE BRIEF
STATEMENT ON 879(A) IN THE COMMITTEE REPORT STATING THAT THE STATUTE
MERELY INCORPORATED THE PROVISIONS OF 1405, WHICH HAD BEEN CONSTRUED
NOT TO IMPOSE ANY REQUIREMENT FOR A NIGHTTIME SEARCH WARRANT OVER AND
ABOVE PROBABLE CAUSE.  YET THIS STATEMENT FAILS TO PROVIDE ANY
EXPLANATION FOR THE LANGUAGE WHICH CONGRESS ADDED TO 1405, THE LANGUAGE
IN CONTROVERSY HERE.  AS TO THE MEANING--OR, AS THE COURT WOULD HAVE
IT, THE LACK OF MEANING--OF THIS LANGUAGE, THE COURT RELIES BASICALLY
UPON THE LAW ENFORCEMENT GOALS OF THE DEPARTMENT OF JUSTICE AND THE
SILENCE OF CONGRESS.  BUT, AS WE HAVE FREQUENTLY WARNED, "(IT IS AT
BEST TREACHEROUS TO FIND IN CONGRESSIONAL SILENCE ALONE THE ADOPTION OF
A CONTROLLING RULE OF LAW."  GIROUARD V. UNITED STATES, 328 U.S. 61, 69
(1946); SEE H.M. HART & A. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN
THE MAKING AND APPLICATION OF ALW 1395 - 1398 (TENT.  ED. 1958), AND
CASES THERE CITED.  THE COURT IN EFFECT PRESUMES FROM CONGRESS' FAILURE
TO EXPLAIN THE MEANING OF THE FINAL CLAUSE OF 879(A) ITS ACQUIESCENCE
IN THE JUSTICE DEPARTMENT'S APPARENT VIEW THAT THIS LANGUAGE IN FACT
SERVES NO PURPOSE. 

I WOULD PRESUME THE CONTRARY.  CONGRESS' CONSISTENT PROTECTION OF
NIGHTTIME PRIVACY BY IMPOSING RESTRICTIONS UPON THE AVAILABILITY OF
WARRANTS FOR NIGHTTIME SEARCHES REINFORCES THE UNAMBIGUOUS STATUTORY
LANGUAGE.  BOTH LEAD ME TO THE CONCLUSION THAT THE FINAL CLAUSE OF
879(A) MUST BE VIEWED AS ANOTHER CONGRESSIONAL MANIFESTATION OF ITS
STRONG POLICY AGAINST NIGHTTIME INTRUSIONS INTO THE HOME.  I DO NOT
THINK THAT THIS INTERPRETATION IS AT ALL INCONSISTENT WITH THE
NARCOTICS LAW ENFORCEMENT OBJECTIVES WHICH WERE THE PRINCIPAL FOCUS OF
THIS LEGISLATION.  THE REQUIREMENT THAT CAUSE BE SHOWN FOR THE
NECESSITY OF A NIGHTTIME SEARCH IS STILL A SUBSTANTIAL EASING OF THE
REQUIREMENT OF POSITIVITY WHICH WAS THEN EMBODIED IN RULE 41, AND WHICH
WOULD OTHERWISE HAVE APPLIED TO MANY OF THE SEARCHES NOW COVERED BY
879(A).  I RESPECTFULLY DISSENT. 

SIMILARLY, MOST OF THE STATE' LAWS PROVIDE THAT SEARCH WARRANTS MAY
ONLY BE SERVED DURING THE DAY UNLESS EXPRESS AUTHORIZATION FOR A
NIGHTTIME SEARCH IS OBTAINED, AND SUCH AUTHORIZATION CAN GENERALLY BE
OBTAINED ONLY BE MEETING SPECIAL REQUIREMENS FOR A NIGHTTIME SEARCH. 
SEE L. HALL, Y. HAMISAR, W. LAGAVE & J. ISRAEL, MODERN CRIMINAL
PROCEDURE 259 (3D ED.  1969). 

/2/  IN AN EFFORT TO CONJURE UP AMBIGUITY IN THE STATUTORY LANGUAGE,
THE COURT ARGUES THAT THE STATUTE COULD HAVE BEEN DRAWN WITH MORE
PRECISION, AND SPECIFICALLY POINTS OUT THAT READ LITERALLY, THE
STATUTORY REQUIREMENT OF CAUSE "FOR ITS SERVICE AT SUCH TIME" WOULD
SEEM TO APPLY TO DAYTIME SEARCHES AS WELL AS THOSE CONDUCTED AT NIGHT. 
ANTE, AT 455 - 456.  I READILY AGREE THAT THE STATUTE COULD HAVE BEEN
MORE ARTFULLY DRAFTED, BUT THE FACT THAT IT COULD HAVE STATED IN
DIFFERENT WORDS HARDLY JUSTIFIES DISREGARDING THE PLAIN MEANING OF THE
STATUTORY LANGUAGE WITH WHICH WE MUST DEAL.  IT ILL SUITS THE COURT TO
SUGGEST THAT THIS LANGUAGE IS AMBIGUOUS WHEN THE COURT IS UNABLE TO
COME FORWARD WITH ANY PLAUSIBLE ALTERNATIVE CONSTRUCTION. 

THE COURT'S SUGGESTION THAT THE STATUTE IS AMBIGUOUS BECUASE IT
COULD BE LITERALLY APPLIED TO DAYTIME SEARCHES AS WELL AS THOSE DURING
THE NIGHT IS WHOOLY INSUBSTANTIAL.  AS THE COURT WELL KNOWS, NO ONE HAS
EVER PROPOSED THAT AN ADDITIONAL BURDEN OF JUSTIFICATION FOR DAYTIME
SEARCHES IS NECESSARY OR APPROPRIATE: IN SHARP CONTRAST, THE CONGRESS
HAS CONSISTENTLY ACTED TO PROTECT NIGHTTIME PRIVACY THROUGH SUCH AN
ADDITIONAL BURDEN ON NIGHTTIME SEARCHES.  THE COURT'S CONFUSION ARISES
ONLY BECAUSE THE WORDS "AT THE TIME) IN THE STATUTE LOGICALLY REFER
BACK TO ITS AUTHORIZATION OF SERVICE "AT ANY TIME OF THE DAY OR
NOGHT."  BUT THIS LATTER PHRASE HAS CONSISTENTLY BEEN USED IN
CONGRESSIONAL ENACTMENTS AS A SHORTHAND EXPRESSION FOR A WARRANT WHOSE
SERVICE AT NIGHT IS AUTHORIZED, SEE E. G., D. C. CODE 33 - 414 (H),
ANTE, AT 433 N.3; D. C. CODE 23 - 521 (F)(5), 522 (C)(1), ANTE, AT 435
N.4; CF. FORMER FED. RULE CRIM. PROC. 41(C), ANTE, AT 437 N.5, TO
DISTINGUISH SUCH A WARRANT FORM ANY OTHER WARRANT, WHICH MAY BE SERVED
ONLY IN THE DAY.  PLAINLY THE STATUTE'S REQUIREMENT OF CAUSE "FOR ITS
SERVICE AT SUCH TIME" WAS INTENDED TO APPLY ONLY TO NIGHTTIME EXECUTION
OF SEARCH WARRANTS. 

AS FOR THE COURT'S COMPLAINT THAT A REQUIREMENT OF CAUSE FOR
NIGHTTIME SERVICE OF A WARRANT IS NOT THE "TRADITIONAL LIMITATION"
IMPOSED UPON NIGHTTIME SEARCHES, IT SHOULD SUFFICE TO POINT OUT THAT
CONGRESS BECAME AWARE IN ITS CONSIDERATION OF THE D. C. COURT REFORM
AND CRIMINAL PROCEDURE ACT IN 1969 THAT A REQUIREMENT OF CAUSE WOULD
PROVIDE GREATER PROTECTION FOR NIGHTTIME PRIVACY THAN THE OLD
POSITIVITY TEST, BY ELIMINATING UNNECESSARY NIGHTTIME SEARCHES
REGARDLESS OF HOW SURE POLICE WERE OF THIER BASIS FOR THE SEARCH.  SEE
HEARINGS ON CRIME IN THE NATIONAL CAPITAL BEFORE THE SENATE COMMITTEE
ON THE DISTRICT OF COLUMBIA, 91ST CONG., 1ST SESS., PT. 4, P. 1404
(1969); BRIEF FOR UNITED STATES 49 - 50.  THIS CHANGE WAS THEREFORE
INCORPORATED INTO THE D. C. CODE, SEE D. C. CODE 23 - 521 - 523.  IT
WAS ALSO ADOPTED IN THE 1972 AMENDMENT TO RULE 41.  IT WOULD HARDLY BE
SURPRISING FOR THE CONGRESS TO INTRODUCE A MODIFICATION ALONG THE SAME
LINES INTO 879(A). 

HERBERT A. ROSENTHAL, BY APPOINTMENT OF THE COURT, 414 U. S. 998,
ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

DEPUTY SOLICITOR GENERAL FREY ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL PETERSEN, EDWARD R. KORMAN, AND JEROME M. FEIT. 
..END :








KAHN V. SHEVIN, 416 U.S. 351 


       KAHN V. SHEVIN, ATTORNEY GENERAL OF FLORIDA, ET AL.

        APPEAL FROM THE SUPREME COURT OF FLORIDA

  NO. 73 - 78.  ARGUED FEBRUARY 25 - 26, 1974--DECIDED APRIL

           24, 1974; (273 SO. 2D 72, AFFIRMED.) 


    FLORIDA STATUTE GRANTS WIDOWS AN ANNUAL $500 PROPERTY TAX

  EXEMPTION.  APPELLANT, A WIDOWER, WAS DENIED AN EXEMPTION BECAUSE

  THE STATUTE OFFERS NO ANALOGOUS BENEFIT FOR WIDOWERS.  HE THEN

  SOUGHT A DECLARATORY JUDGMENT IN COUNTY CIRCUIT COURT, WHICH HELD

  THE STATUTE VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE

  FOURTEENTH AMENDMENT.  THE FLORIDA SUPREME COURT REVERSED,

  FINDING THE CLASSIFICATION "WIDOW" VALID BECAUSE IT HAS A "FAIR

  AND SUBSTANTIAL RELATION TO THE OBJECT OF THE LEGISLATION" OF

  REDUCING "THE DISPARITY BETWEEN THE ECONOMIC CAPABILITIES OF A

MAN AND A WOMAN."  HELD: 

     1.  THE CHALLENGED TAX LAW IS REASONABLY DESIGNED TO FURTHER

  THE STATE POLICY OF CUSHIONING THE FINANCIAL IMPACT OF SPOUSAL

  LOSS UPON THE SEX FOR WHOM THAT LOSS IMPOSES A DISPROPORTIONATELY

  HEAVY BURDEN.  FRONTIERO V. RICHARDSON, 411 U.S. 677,

  DISTINGUISHED.  P. 355. 

     2.  A STATE TAX LAW IS NOT ARBITRARY ALTHOUGH IT

  "DISCRIMINATES) IN FAVOR OF A CERTAIN CLASS . . . IF THE

  DISCRIMINATION IS FOUNDED UPON A REASONBLE DISTINCTION, OR

  DIFFERENCE IN STATE POLICY,"  AND THE STATUTE HERE IS WELL WITHIN

  THOSE LIMITS.  PP. 355 - 356. 

     DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BERGER, C.J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ.,

  JOINED.  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH

  MARSHALL, J., JOINED, POST P. 357.  WHITE, J., FILED A DISSENTING

  OPINION, POST, P. 360. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SINCE AT LEAST 1885, FLORIDA HAS PROVIDED FOR SOME FORM OF PROPERTY
TAX EXEMPTION FOR WIDOWS.  /1/  THE CURRENT LAW GRANTING ALL WIDOWS AN
ANNUAL $500 EXEMPTION, FLA. STAT. 196.202 (SUPP. 1974 - 1975), HAS BEEN
ESSENTIALLY UNCHANGED SINCE 1941.  /2/ APPELLANT KAHN IS A WIDOWER WHO
LIVES IN FLORIDA AND APPLIED FOR THE EXEMPTION TO THE DADE COUNTY TAX
ASSESSOR'S OFFICE.  IT WAS DENIED BECAUSE THE STATUTE OFFERS NO
ANALOGOUS BENEFIT FOR WIDOWERS.  KAHN THEN SOUGHT A DECLARATORY
JUDGMENT IN THE CIRCUIT COURT FOR DADE COUNTY, FLORIDA, AND THAT COURT
HELD THE STATUTE VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT BECAUSE THE CLASSIFICATION "WIDOW" WAS BASED UPON
GENDER.  THE FLORIDA SUPREME COURT REVERSED, FINDING THE CLASSIFICATION
VALID BECAUSE IT HAS A "FAIR AND SUBSTANTIAL RELATION TO THE OBJECT OF
THE LEGISLATION,'"  /3/  THAT OBJECT BEING THE REDUCTION OF "THE
DISPARITY BETWEEN THE ECONOMIC CAPABILTIES OF A MAN AND A WOMAN."  KAHN
APPEALED HERE, 28 U.S.C. 1257 (2), AND WE NOTED PROBABLE JURISDICTION,
414 U.S. 973.  WE AFFIRM. 

THERE CAN BE NO DISPUTE THAT THE FINANCIAL DIFFICULTIES CONFRONTING
THE LONE WOMAN IN FLORIDA OR IN ANY OTHER STATE EXCEED THOSE FACING THE
MAN.  WHETHER FROM OVERT DISCRIMINATION OR FROM THE SOCIALIZATION
PROCESS OF A MALEDOMINATED CULTURE, THE JOB MARKET IS INHOSPITABLE TO
THE WOMAN SEEKING ANY BUT THE LOWEST PAID JOBS.  /4/  THERE ARE, OF
COURSE, EFFORTS UNDER WAY TO REMEDY THIS SITUATION.  ON THE FEDERAL
LEVEL, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 PROHIBITS COVERED
EMPLOYERS AND LABOR UNIONS FROM DISCRIMINATION ON THE BASIS OF SEX, 78
STAT. 253, 42 U.S.C. 2000E - 2 (A), (B),  (C), AS DOES THE EQUAL PAY
ACT OF 1963, 77 STAT. 56, 29 U.S.C. 206 (D).  BUT FIRMLY ENTRENCHED
PRACTICES ARE RESISTANT TO SUCH PRESSURES, AND, INDEED, DATA COMPLIED
BY THE WOMEN'S BUREAU OF THE UNITED STATES DEPARTMENT OF LABOR SHOW
THAT IN 1972 A WOMAN WORKING FULL TIME HAD A MEDIAN INCOME WHICH WAS
ONLY 57.9% OF THE MEDIAN FOR MALES--A FIGURE ACTUALLY SIX POINTS LOWER
THAN HAD BEEN ACHIEVED IN 1955.  /5/  OTHER DATA POINT IN THE SAME
DIRECTION.  /6/  THE DISPARITY IS LIKELY TO BE EXACERBATED FOR THE
WINDOW.  WHILE THE WIDOWER CAN USUALLY CONTINUE IN THE OCCUPATION WHICH
PRECEDED HIS SPOUSE'S DEATH, IN MANY CASES THE WIDOW WILL FIND HERSELF
SUDDENLY FORCED INTO A JOB MARKET WITH WHICH SHE IS UNFAMILIAR, AND IN
WHICH, BECAUSE OF HER FORMER ECONOMIC DEPENDENCY, SHE WILL HAVE FEWER
SKILLS TO OFFER.  /7/  THERE CAN BE NO DOUBT, THEREFORE, THAT FLORIDA'S
DIFFERING TREATMENT OF WIDOWS AND WIDOWERS "'RESTS) UPON SOME GROUND OF
DIFFERENCE HAVING A FAIR AND SUBSTANTIAL RELATION TO THE OBJECT OF THE
LEGISLATION.'"  REED V. REED, 404 U.S. 71, 76, QUOTING ROYSTER GUANO
CO. V. VIRGINIA, 253 U.S. 412, 415. 

THIS IS NOT A CASE LIKE FRONTIERO V. RICHARDSON, 411 U.S. 677, WHERE
THE GOVERNMENT DENIED ITS FEMALE EMPLOYEES BOTH SUBSTANTIVE AND
PROCEDURAL BENEFITS GRANTED MALES "SOLELY . . . FOR ADMINISTRATIVE
CONVENIENCE."  ID., AT 690 (EMPHASIS IN ORIGINAL).  /8/  WE DEAL HERE
WITH A STATE TAX LAW REASONABLY DESIGNED TO FURTHER THE STATE POLICY OF
CUSHIONING THE FINANCIAL IMPACT OF SPOUSAL LOSS UPON THE SEX FOR WHICH
THAT LOSS IMPOSES A DISPROPORTIONATELY HEAVY BURDEN.  WE HAVE LONG HELD
THAT "(WHERE TAXATION IS CONCERNED AND NO SPECIFIC FEDERAL RIGHT, APART
FROM EQUAL PROTECTION, IS IMPERILED, THE STATES HAVE LARGE LEEWAY IN
MAKING CLASSIFICATIONS AND DRAWING LINES WHICH IN THEIR JUDGMENT
PRODUCE REASONABLE SYSTEMS OF TAXATION."  LEHNHAUSEN V. LAKE SHORE AUTO
PARTS CO., 410 U.S. 356, 359.  A STATE TAX LAW IS NOT ARBITRARY
ALTHOUGH IT "DISCRIMINATES) IN FAVOR OF A CERTAIN CLASS . . . IF THE
DISCRIMINATION IS FOUNDED UPON A REASONABLE DISTINCTION, OR DIFFERENCE
IN STATE POLICY,"  NOT IN CONFLICT WITH THE FEDERAL CONSTITUTION. 
ALLIED STORES V. BOWERS, 358 U.S. 522, 528.  THIS PRINCIPLE HAS
WEATHERED NEARLY A CENTURY OF SUPREMEM COURT ADJUDICIATION, /9/  AND IT
APPLIES HERE AS WELL.  THE STATUTE BEFORE US IS WELL WITHIN THOSE
LIMITS.  /10/

             AFFIRMED. 

/1/  ARTICLE IX, 9, OF THE 1885 FLORIDA CONSTITUTION PROVIDED THAT:
"THERE SHALL BE EXEMPT FROM TAXATION PROPERTY TO THE VALUE OF TWO
HUNDRED DOLLARS TO EVERY WIDOW THAT HAS A FAMILY DEPENDENT ON HER FOR
SUPPORT, AND TO EVERY PERSON THAT HAS LOST A LIMB OR BEEN DISABLED IN
WAR OR BY MISFORTUNE." 

/2/  IN 1941 FLA. STAT. 192.06 (7) EXEMPTED "(PROPERTY TO THE VALUE
OF FIVE HUNDRED DOLLARS TO EVERY WIDOW . . ."  THAT PROVISION HAS
SURVIVED A VARIETY OF MINOR CHANGES AND RENUMBERING IN SUBSTANTIALLY
THE SAME FORM, INCLUDING FLA STAT. 196.191 (7) (1971) UNDER WHICH
APPELLANT WAS DENIED THE EXEMPTION.  CURRENTLY FLA. STAT. 196.202
PROVIDES: "PROPERTY TO THE VALUE OF FIVE HUNDRED DOLLARS ($500) OF
EVERY WIDOW, BLIND PERSON, OR TOTALLY AND PERMANENTLY DISABLED PERSON
WHO IS A BONA FIDE RESIDENT OF THIS STATE SHALL BE EXEMPT FROM
TAXATION." 

/3/  QUOTING REED V. REED, 404 U.S. 71, 76. 

/4/  IN 1970 WHILE 40% OF MALES IN THE WORK FORCE EARNED OVER
$10,000, AND 70% OVER $7,000, 45% OF WOMEN WORKING FULL TIME EARNED
LESS THAN $5,000, AND 73.9% EARNED LESS THAN $7,000.  U.S. BUREAU OF
THE CENSUS: CURRENT POPULATION REPORTS, SERIES P-60, NO. 80. 

/5/  THE WOMEN'S BUREAU PROVIDES THE FOLLOWING DATA:  (TABLE
OMITTED). 

NOTE.--DATA FOR 1962 - 72 ARE NOT STRICTLY COMPARABLE WITH THOSE FOR
PRIOR YEARS, WHICH ARE FOR WAGE AND SALARY INCOME ONLY AND DO NOT
INCLUDE EARNINGS OF SELF-EMPLOYED PERSONS. 

SOURCE: TABLE PREPARED BY WOMEN'S BUREAU, EMPLOYMENT STANDARDS
ADMINISTRATION, U.S. DEPARTMENT OF LABOR, FROM DATA PUBLISHED BY BUREAU
OF THE CENSUS, U.S. DEPARTMENT OF COMMERCE. 

/6/  FOR EXAMPLE, IN 1972 THE MEDIAN INCOME OF WOMEN WITH FOUR YEARS
OF COLLEGE WAS $8,736--EXACTLY $100 MORE THAN THE MEDIAN INCOME OF MEN
WHO HAD NEVER EVEN COMPLETED ONE YEAR OF HIGH SCHOOL.  OF THOSE
EMPLOYED AS MANAGERS OF ADMINISTRATORS, THE WOMENHS MEDIAN INCOME WAS
ONLY 53.2% OF THE MEN'S, AND IN THE PROFESSIONAL AND TECHNICAL
OCCUPATIONS THE FIGURE WAS 67.5%.  THUS THE DISPARITY EXTENDS EVEN TO
WOMEN OCCUPYING JOBS USUALLY THOUGHT OF AS WELL PAID.  TABLES PREPARED
BY THE WOMEN'S BUREAU, EMPLOYMENT STANDARDS ADMINISTRATION, U.S.
DEPARTMENT OF LABOR. 

/7/  IT IS STILL THE CASE THAT IN THE MAJORITY OF FAMILIES WHERE
BOTH SPOUSES ARE PRESENT, THE WOMAN IS NOT EMPLOYED.  A. FERRISS,
INDICATORS OF TRENDS IN THE STATUS OF AMERICAN WOMEN 95 (1971). 

/8/  AND IN FRONTIERO THE PLURALITY OPINION ALSO NOTED THAT THE
STATUTES THERE WERE "NOT IN ANY SENSE DESIGNED TO RECTIFY THE EFFECTS
OF PAST DISCRIMINATION AGAINST WOMEN.  ON THE CONTRARY, THESE STATUTES
SEIZE UPON A GROUP--WOMEN--WHO HAVE HISTORICALLY SUFFERED
DISCRIMINATION IN EMPLOYMENT, AND RELY ON THE EFFECTS OF THIS PAST
DISCRIMINATION AS A JUSTIFICATION FOR HEAPING ON ADDITIONAL ECONOMIC
DISADVANTAGES."  411 U.S. 677, 689 N.22 (CITATIONS OMITTED). 

/9/  SEE BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 237;
MADDEN V. KENTUCKY, 309 U.S. 83, 87 - 88; LAWRENCE V. STATE TAX COMM'N,
286 U.S. 276; ROYSTER GUANO CO. V. CIRGINIA, 253 U.S. 412. 

/10/  THE DISSENTS ARGUE THAT THE FLORIDA LEGISLATURE COULD HAVE
DRAFTED THE STATUTE DIFFERENTLY, SO THAT ITS PURPOSE WOULD HAVE BEEN
ACCOMPLISHED MORE PRECISELY.  BUT THE ISSUE, OF COURSE, IS NOT WHETHER
THE STATUTE COULD HAVE BEEN DRAFTED MORE WISELY, BUT WHETHER THE LINES
CHOSEN BY THE FLORIDA LEGISLATURE ARE WITHIN CONSTITUTIONAL
LIMITATIONS.  THE DISSENTS WOULD USE THE EQUAL PROTECTION CLAUSE AS A
VEHICLE FOR REINSTATING NOTIONS OF SUBSTANTIVE DUE PROCESS THAT HAVE
BEEN REPUDIATED.  "WE HAVE RETURNED TO THE ORIGINAL CONSTITUTIONAL
PROPOSITION THAT COURTS DO NOT SUBSTITUTE THEIR SOCIAL AND ECONOMIC
BELIEFS FOR THE JUDGMENT OF LEGISLATIVE BODIES, (WHICH) ARE ELECTED TO
PASS LAWS."  FERGUSON V. SKRUPA, 372 U.S. 726, 730. 

GENDER HAS NEVER BEEN REJECTED AS AN IMPERMISSIBLE CLASSIFICATION IN
ALL INSTANCES.  CONGRESS HAS NOT SO FAR DRAFTED WOMEN INTO THE ARMED
SERVICES, 50 U.S.C. APP. 454.  THE FAMOUS BRANDEIS BRIEF IN MULLER V.
OREGON, 208 U.S. 412, ON WHICH THE COURT SPECIFICALLY RELIED, ID., AT
419 - 420, EMPHASIZED THAT THE SPECIAL PHYSICAL STRUCTURE OF WOMEN HAS
A BEARING ON THE "CONDITIONS UNDER WHICH SHE SHOULD BE PERMITTED TO
TOIL."  ID., AT 420.  THESE INSTNACES ARE PERTINENT TO THE PROBLEM IN
THE TAX FIELD WHICH IS PRESENTED BY THIS PRESENT CASE.  MR. CHIEF
JUSTICE HUGES IN SPEAKING FOR THE COURT SAID:  "THE STATES, IN THE
EXERCISE OF THEIR TAXING POWER, AS WITH RESPECT TO THE EXERTION OF
OTHER POWERS, ARE SUBJECT TO THE REQUIREMENTS OF THE DUE PROCESS AND
THE EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT, BUT THAT
AMENDMENT IMPOSES NO IRON RULE OF EQUALITY, PROHIBITING THE FLEXIBILITY
AND VARIETY THAT ARE APPRORPIATE TO SCHEMES TO TAXATION.  . . . IN
LEVYING SUCH TAXES, THE STATE IS NOT REQUIRED TO RESORT TO CLOSE
DISTINCTIONS OR TO MAINTAIN A PRECISE, SCIENTIFIC UNIFORMITY WITH
REFERENCE TO COMPOSITION, USE OR VALUE.  TO HOLD OTHERWISE WOULD BE TO
SUBJECT THE ESSENTIAL TAXING POWER OF THE STATE TO AN INTOLERABLE
SUPERVISION, HOSTILE TO THE BASIC PRINCIPLES OF OUR GOVERNMENT AND
WHOLLY BEUOND THE PROTECTION WHICH THE GENERAL CLAUSE OF THE FOURTEENTH
AMENDMENT WAS INTENDED TO ASSURE."  OHIO OIL.  CO. V. CONWAY, 281 U.S.
146, 159. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

THE COURT REJECTS WIDOWER KAHN'S CLAIM OF DENIAL OF EQUAL PROTECTION
ON THE GROUND THAT THE LIMITATION IN FLA. STAT. 196.191 (7) (1971),
WHICH PROVIDES AN ANNUAL $500 PROPERTY TAX EXEMPTION TO WIDOWS, IS A
LEGISLATIVE CLASSIFICATION THAT BEARS A FAIR AND SUBSTANTIAL RELATION
TO "THE STATE POLICY OF CUSHIONING THE FINANCIAL IMPACT OF SPOUSAL LOSS
UPON THE SEX FOR WHICH THAT LOSS IMPOSES A DISPROPORTIONATELY HEAVY
BURDEN."  ANTE, AT 355.  IN MY VIEW, HOWEVER, A LEGISLATIVE
CLASSIFICATION THAT DISTINGUISHES POTENTIAL BENEFICIARIES SOLELY BY
REFERENCE TO THEIR GENDER-BASED STATUS AS WIDOWS OR WIDOWERS, LIKE
CLASSIFICATIONS BASED UPON RACE, /1/  ALIENAGE, /2/  AND NATIONAL
ORIGIN, /3/  MUST BE SUBJECTED TO CLOSE JUDICIAL SCRUTINY, BECAUSE IT
FOCUSES UPON GENERALLY IMMUTABLE CHARAVTERISTICS OVER WHICH INDIVIDUALS
HAVE LITTLE OR NO CONTROL, AND ALSO BECAUSE GENDER-BASED
CLASSIFICATIONS TOO OFTEN HAVE BEEN INEXCUSABLY UTILIZED TO STEREOTYPE
AND STIGMATIZE POLITICALLY POWERLESS SEGMENTS OF SOCIETY.  SEE
FRONTIERO V. RICHARDSON, 411 U.S. 677 (1973).  THE COURT IS NOT,
THEREFORE, FREE TO SUSTAIN THE STATUTE ON THE GROUND THAT IT RATIONALLY
PROMOTES LEGITIMATE GOVERNMENTAL INTERESTS; RATHER, SUCH SUSPECT
CLASSIFICATIONS CAN BE SUSTAINED ONLY WHEN THE STATE BEARS THE BURDEN
OF DEMONSTRATING THAT THE CHALLENGED LEGISLATION SERVES OVERRIDING OR
COMPELLING INTERESTS THAT CANNOT BE ACHIEVED EITHER BY A MORE CAREFULLY
TAILORED LEGISLATIVE CLASSIFICATION OR BY THE USE OF FEASIBLE, LESS
DRASTIC MEANS.  WHILE, IN MY VIEW, THE STATUTE SERVES A COMPELLING
GOVERNMENTAL INTEREST BY "CUSHIONING THE FINANCIAL IMPACT OF SPOUSAL
LOSS UPON THE SEX FOR WHICH THAT LOSS IMPOSES A DISPROPORTIONATELY
HEAVY BURDEN,"  I THINK THAT THE STATUTE IS INVALID BECAUSE THE STATE'S
INTEREST CAN BE SERVED EQUALLY WELL BY A MORE NARROWLY DRAFTED
STATUTE. 

GENDER-BASED CLASSIFICATIONS CANNOT BE SUSTAINED MERELY BECAUSE THEY
PROMOTE LEGITIMATE GOVERNMENTAL INTEREST, SUCH AS EFFICACIOUS
ADMINISTRATION OF GOVERNMENT.  FRONTIERO V. RICHARDSON, SUPRA; REED V.
REED, 404 U.S. 71 (1971).  FOR "WHEN WE ENTER THE REALM OF 'STRICT
JUDICIAL SCRUTINY,' THERE CAN BE NO DOUBT THAT 'ADMINISTRATIVE
CONVENIENCE'  IS NOT A SHIBBOLETH, THE MERE RECITATION OF WHICH DICATES
CONSTITUTIONALTY.  SEE SHAPIRO V. THOMPSON, 394 U.S. 618 (1969);
CARRINGTON V. RASH, 380 U.S. 89 (1965).  ON THE CONTRARY, ANY STATUTORY
SCHEME WHICH DRAWS A SHARP LINE BETWEEN THE SEXES, SOLELY FOR THE
PURPOSE OF ACHIEVING ADMINISTRATIVE CONVENIENCE, NECESSARILY COMMANDS
'DISSIMILAR TREATMENT FOR MEN WOMEN WHO ARE . . . SIMILARLY SITUATED,'
AND THEREFORE INVOLVES THE 'VERY KIND OF ARBITRARY LEGISLATIVE CHOICE
FORBIDDEN BY THE (CONSTITUTION) . . . .'  REED V. REED, 404 U.S., AT
77, 76."  FRONTIERO V. RICHARDSON, SUPRA, AT 690.  BUT FLORIDA'S
JUSTIFICATION OF 196.191 (7) IS NOT THAT IT SERVES ADMINISTRATIVE
CONVENIENCE OR HELPS TO PRESERVE THE PUBLIC FISC.  RATHER, THE ASSERTED
JUSTIFICATION IS THAT 196.191 (7) IS AN AFFIRMATIVE STEP TOWARD
ALLEVIATING THE EFFECTS OF PAST ECONOMIC DISCRIMINATION AGAINST WOMEN. 
/4/ 

I AGREE THAT, IN PROVIDING SPECIAL BENEFITS FOR A NEEDY SEGMENT OF
SOCIETY LONG THE VICTIM OF PURPOSEFUL DISCRIMINATION AND NEGLECT, THE
STATUTE SERVES THE COMPELLING STATE INTEREST OF ACHIEVING EQUALITY FOR
SUCH GROUPS.  /5/  NO ONE FAMILAR WITH THIS COUNTRY'S HISTORY OF
PERVASIVE SEX DISCRIMINATION AGAINST WOMEN /6/  CAN DOUBT THE NEED FOR
REMEDIAL MEASURES TO CORRECT THE RESULTING ECONOMIC IMBALANCES. 
INDEED, THE EXTENT OF THE ECONOMIC DISPARITY BETWEEN MEN AND WOMEN IS
DRAMATIZED BY THE DATA CITED BY THE COURT, ANTE, AT 353 - 354.  BY
PROVIDING A PROPERTY TAX EXEMPTION FOR WIDOWS, 196.191 (7) ASSISTS IN
REDUCING THAT ECONOMIC DISPARITY FOR A CLASS OF WOMEN PARTICIULARLY
DISADVANTAGED BY THE LEGACY OF ECONOMICI DISCRIMIANTION.  /7/  IN THAT
CIRCUMSTANCE, THE PURPOSE AND EFFECT OF THE SUSPECT CLASSIFICATION ARE
AMELIORATIVE; THE STATUTE NEITHER STIGMATIZES NOR DENIGRATES WIDOWERS
NOT ALSO BENEFITED BY THE LEGISLATION.  MOREOVER, INCLSUION OF NEEDY
WIDOWERS WITHIN THE CLASS OF BENEFICIARIES WOULD NOT FURTHER THE
STATE'S OVERRIDING INTEREST IN REMEDYING THE ECONOMIC EFFECTS OF PAST
SEX DISCRIMINATION FOR NEEDY VICTIMS OF THAT DISCRIMINATION.  WHILE
DOUBTLESS SOME WIDOWERS ARE IN FINANCIAL NEED, NO ONE SUGGESTS THAT
SUCH NEED RESULTS FROM SEX DISCRIMINATION AS IN THE CASE OF WIDOWS. 
THE STATUTE NEVERTHELESS FAILS TO SATISFY THE REQUIREMENTS OF EQUAL
PROTECTION, SINCE THE STATE HAS NOT BORNE ITS BURDEN OF PROVING THAT
ITS COMPELLING INTEREST COULD NOT BE ACHIEVED BY A MORE PRECISELY
TAILORED STATUTE OR BY USE OF FEASIBLE, LESS FRASTIC MEANS.  SECTION
196.191 (7) IS PALINLY OVERINCLUSIVE, FOR THE $500 PROPERTY TAX
EXEMPTION MAY BE OBTAINED BY A FINANCIALLY INDEPENDENT HEIRESS AS WELL
AS BY AN UNEMPLOYED WIDOW WITH DEPENDENT CHILDREN.  THE STATE HAS
OFFERED NOTING TO EXPLAIN WHY INCLUSION OF WIDOWS OF SUBSTANTIAL
ECONOMIC MEANS WAS NECESSARY TO ADVANCE THE STATE'S INTEREST IN
AMELIOATING THE EFFECTS OF PAST ECONOMIC DISCRIMINATION AGAINST WOMEN. 

MOREOVER, ALTERNATIVE MEANS OF CLASSIFICATION, NARROWING THE CLASS
OF WIDOW BENEFICIARIES, APPEAR READILY AVAILABLE.  THE EXEMPTION IS
GRANTED ONLY TO WIDOWS WHO COMPLETE AND FILE WITH THE TAX ASSESSOR A
FORM APPLICATION ESTABLISHING THEIR STATUTE AS WIDOWS.  BY MERELY
REDRAFTING THAT FORM TO EXCLUDE WIDOWS WHO EARN ANNUAL INCOMES, OR
POSSESS ASSETS, IN EXCESS OF SPECIFIED AMOUNTS, THE STATE COULD READILY
NARROW THE CLASS OF BENEFICIARIES TO THOSE WIDOWS FOR WHOM THE EFFECTS
OF PAST ECONOMIC DISCRIMINATION AGAINST WOMEN HAVE BEEN A PRACTICAL
REALITY. 

/1/  SEE LOVING V. VIRGINIA, 388 U.S. 1, 11 (1967); MCLAUGHLIN V.
FLORIDA, 379 U.S. 184, 191 - 192 (1964); BOLLING V. SHARPE, 347 U.S.
497, 499 (1954). 

/2/  SEE GRAHAM V. RICHARDSON, 403 U.S. 365, 372 (1971). 

/3/  SEE OYAMA V. CALIFORNIA, 332 U.S. 633, 644 - 646 (1948);
KOREMATSU V. UNITED STATES, 323 U.S. 214, 216 (1944); HIRABAYASHI V.
UNITED STATES, 320 U.S. 81, 100 (1943). 

/4/  BRIEF FOR APPELLEES 24 - 25; TR. OF ORAL ARG. 29 - 31.  THE
STATE'S ARGUMENT IS SUPPORTED BY THE FLORIDA SUPREME COURT WHICH HELD
THAT THE OBJECT OF 196.191 (7) WAS TO HELP "'REDUCE THE DISPARITY
BETWEEN THE ECONOMIC . . . CAPABILITIES OF A MAN AND A WOMAN.  . .'" 
273 SO. 2D 72, 73 (1973). 

/5/  SIGNIFICANTLY, THE FLORIDA STATUTE DOES NOT COMPEL THE
BENEFICIARIES TO ACCEPT THE STATE'S AID.  THE TAXPAYER MUST FILE FOR
THE TAX EXEMPTION.  THIS CASE, THEREFORE, DOES NOT REQUIRE RESOLUTION
OF THE MORE DIFFICULT QUESTIONS RAISED BY REMEDIAL LEGISLATION WHICH
MAKES SPECIAL TREATMENT MANDATORY.  SEE NOTE, DEVELOPMENTS IN THE LAW-
EQUAL PROTECTION, 82 HARV. L. REV. 1065, 1113 - 1117 (1969). 

/6/  SEE FRONTIERO V. RICHARDSON, 411 U.S. 677 (1973); SAIL'ER INN,
INC. V. KIRBY, 5 CAL 2D 1, 485 P.2D 529 (1971).  SEE GENERALLY THE
PRESIDENT'S TASK FORCE ON WOMEN'S RIGHTS AND RESPONSIBILITIES, A MATTER
OF SIMPLE JUSTICE (1970); L. KANOWITZ, WOMEN AND THE LAW: THE
UNFINISHED REVOLUTION (1969). 

/7/  AS NOTED BY THE COURT, ANTE, AT 353 - 354.  "(DATA COMPLIED BY
THE WOMEN'S BUREAU OF THE UNITED STATES DEPARTMENT OF LABOR SHOW THAT
IN 1972 A WOMAN WORKING FULL TIME HAD A MEDIAN INCOME WHICH WAS ONLY
57.9% OF THE MEDIAN FOR MALES--A FIGURE ACTUALLY SIX POINTS LOWER THAN
HAD BEEN ACHIEVED IN 1955 . . . . THE DISPARITY IS LIKELY TO BE
EXACERBATED FOR THE WIDOW.  WHILE THE WIDOWER CAN USUALLY CONTINUE IN
THE OCCUPATION WHICH PRECEDED HIS SPOUSE'S DEATH, IN MANY CASES THE
WIDOW WILL FIND HERSELF SUDDENLY FORCED INTO A JOB MARKET WITH WHICH
SHE IS UNFAMILIAR, AND IN WHICH, BECAUSE OF HER FORMER ECONOMIC
DEPENDENCY, SHE WILL HAVE FEWER SHILLS TO OFFER."  (FOOTNOTES
OMITTED.) 

MR. JUSTICE WHITE, DISSENTING. 

THE FLORIDA TAX EXEMPTION AT ISSUE HERE IS AVAILABLE TO ALL WIDOWS
BUT NOT TO WIDOWERS.  THE PRESUMPTION IS THAT ALL WIDOWS ARE
FINANCIALLY MORE NEEDY AND LESS TRAINED OR LESS READY FOR THE JOB
MARKET THAN MEN.  IT MAY BE THAT MOST WIDOWS HAVE BEEN OCCUPIED AS
HOUSEWIFE, MOTHER, AND HOMEMAKER AND ARE NOT IMMEDIATELY PREPARED FOR
EMPLOYMENT.  BUT THERE ARE MANY RICH WIDOWS WHO NEED NO LARGESS FROM
THE STATE; MANY OTHERS ARE HIGHLY TRAINED AND HAVE HELD LUCRATIVE
POSITIONS LONG BEFORE THE DEATH OF THEIR HUSBANDS.  AT THE SAME TIME,
THERE ARE MANY WIDOWERS WHO ARE NEEDY AND WHO ARE IN MORE DESPERATE
FINANCIAL STRAITS AND HAVE LESS ACCESS TO THE JOB MARKET THAN MANY
WIDOWS.  YET NONE OF THEM QUALIFIES FOR THE EXEMPTION. 

I FIND THE DISCRIMINATION INVIDIOUS AND VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE.  THERE IS MERIT IN GIVING POOR WIDOWS A TAX BREAK,
BUT GENDER-BASED CLASSIFICATIONS ARE SUSPECT AND REQUIRE MORE
JUSTIFICATION THAN THE STATE HAS OFFERED. 

I PERCEIVE NO PURPOSE SERVED BY THE EXEMPTION OTHER THAN TO ALLEVIATE
CURRENT ECONOMIC NECESSITY, BUT THE STATE EXTENDS THE EXEMPTION TO
WIDOWS WHO DO NOT NEED THE HELP AND DENIES IT TO WIDOWERS WHO DO.  IT
MAY BE ADMINISTRATIVELY INCONVENIENT TO MAKE INDIVIDUAL DETERMIANTIONS
OF ENTITLEMENT AND TO EXTEND THE EXEMPTION TO NEEDY MEN AS WELL AS
NEEDY WOMEN, BUT ADMINISTRATIVE EFFICIENCY IS NOT AN ADEQUATE
JUSTIFICATION FOR DISCRIMINATIONS BASED PURELY ON SEX.  FRONTIERO V.
RICHARDSON, 411 U.S. 677 (1973); REED V. REED, 404 U.S. 71 (1971). 

IT MAY BE SUGGESTED THAT THE STATE IS ENTITELD TO PREFER WIDOWS OVER
WIDOWERS BECAUSE THEIR ASSUMED NEED IS ROOTED IN PAST AND PRESENT
ECONOMIC DISCRIMINATION AGAINST WOMEN.  BUT THIS IS NOT A CREDIBLE
EXPLANATION OF FLORIDA'S TAX EXEMPTION; FOR IF THE STATE'S PURPOSE WAS
TO COMPENSATE FOR PAST DISCRIMIANTION AGAINST FEMALES, SURELY IT WOULD
NOT HAVE LIMITED THE EXEMPTION TO WOMEN WHO ARE WIDOWS.  MOREOVER, EVEN
IF PAST DISCRIMINATION IS CONSIDERED TO BE THE CRITERION FOR CURRENT
TAX EXEMPTION, THE STATE NEVERTHELESS IGNORES ALL THOSE WIDOWERS WHO
HAVE FELT THE EFFECTS OF ECONOMIC DISCRIMINATION, WHETHER AS A MEMBER
OF A RACIAL GROUP OR AS ONE OF THE MANY WHO CANNOT ESCAPE THE CYCLE OF
POVERTY.  IT SEEMS TO ME THAT THE STATE IN THIS CASE IS MERELY
CONFERRING AN ECONOMIC BENEFIT IN THE FORM OF A TAX EXEMPTION AND HAS
NOT ADEQUATELY EXPLAINED WHY WOMEN SHOULD BE TREATED DIFFERENTLY FROM
MEN. 

I DISSENT. 

RUTH BADER GINSBURG ARGUED THE CAUSE FOR APPELLANT.  WITH HER ON THE
BRIEFS WAS MELVIN L. WULF. 

SYDNEY H. MCKENZIE III, ASSISTANT ATTORNEY GENERAL OF FLORIDA,
ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WAS ROBERT L.
SHEVIN, ATTORNEY GENERAL, PRO SE.
..END :


















PERNELL V. SOUTHALL REALITY, 416 U.S. 363 


       PERNELL V. SOUTHALL REALITY

        CERTIORARI TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

        NO. 72 - 6041.  ARGUED FEBRUARY 19, 1974--DECIDED APRIL 24,

      1974; (294 A.2D 490, REVERSED, AND REMANDED.) 


 SINCE THE RIGHT TO RECOVER POSSESSION OF REAL PROPERTY WAS A RIGHT
ASCERTAINED AND PROTECTED

  AT COMMON LAW, THE SEVENTH AMENDMENT OF THE CONSTITUTION ENTITLES
EITHER PARTY TO DEMAND A

  JURY TRIAL IN AN ACTION TO RECOVER POSSESSION OF REAL PROPERTY IN
THE SUPERIOR COURT FOR THE

  DISTRICT OF COLUMBIA UNDER 16 - 1501 OF THE DISTRICT OF COLUMBIA
CODE.  PP. 369 - 385. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ.,

  JOINED.  BURGER, C.J., AND DOUGLAS, J., CONCURRED IN THE RESULT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER THE SEVENTH AMENDMENT
GUARANTEES THE RIGHT TO TRIAL BY JURY IN AN ACTION BROUGHT IN THE
DISTRICT OF COLUMBIA FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY. 
IN MAY 1971, PETITIONER, DAVE PERNELL, ENTERED INTO A LEASE AGREEMENT
WITH RESPONDENT, SOUTHALL REALTY, FOR THE RENTAL OF A HOUSE IN THE
DISTRICT OF COLUMBIA.  IN JULY 1971, SOUTHALL FILED A COMPLAINT IN THE
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA SEEKING TO EVICT PERNELL
FROM THE PREMISES FOR ALLEGED NONPAYMENT OF RENT.  SUIT WAS BROUGHT
UNDER D.C. CODE 16 - 1501 THROUGH 16 - 1505, WHICH ESTABLISH A
PROCEDURE FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY.  IN HIS
ANSWER, PERNELL DENIED THAT RENT WAS OWING, ASSERTED THAT SOUGHALL
MAINTAINED THE PREMISES IN A UNSAFE, UNHEALTHY, AND UNSANITARY
CONDITION IN VIOLATION OF THE HOUSING REGULATIONS OF THE DISTRICT OF
COLUMBIA, /1/  AND ALLEGED THAT SOUTHALL BREACHED AN AGREEMENT TO WAIVE
SEVERAL MONTHS' RENT IN EXCHANGE FOR PERNELL'S MAKIN GCERTAIN
IMPROVEMENTS ON THE PROPERTY.  PERNELL ALSO CLAIMED A SETOFF OF $389.60
FOR REPAIRS MADE TO BRING THE PREMISES INTO PARTIAL COMPLIANCE WITH THE
DISTRICT'S HOUSING REGULATIONS AND A COUNTERCLAIM OF $75 FOR BACK RENT
PAID. 

IN HIS ANSWER, PERNELL ALSO REQUESTED A TRIAL BY JURY.  THE TRIAL
JUDGE, HOWEVER, STRUCK THE JURY DEMAND, TRIED THE CASE HIMSELF, AND
ENTERED JUDGMENT FOR SOUTHALL.  PERNELL APPEALED TO THE DISTRICT OF
COLUMBIA COURT OF APPEALS, CLAIMING THAT THE SEVENTH AMENDMENT
GUARANTEED THE RIGHT TO TRIAL BY JURY IN ALL CASES BROUGHT UNDER 16 -
1501 AND, ALTERNATIVELY, THAT HE WAS ENTITLED TO A JURY TRIAL IN THIS
CASE BY VIRTUE OF THE COUNTERCLAIM AND SETOFF SPECIFIED IN HIS ANSWER. 
THE COURT OF APPEALS AFFIRMED, 294 A.2D 490 (1972), HOLDING THAT JURY
TRIALS ARE NOT GUARANTEED BY THE SEVENTH AMENDMENT IN LANDLORD-TENANT
CASES PREDICATED ON NONPAYMENT OF RENT OR SOME OTHER BREACH OF THE
LEAST WHERE THE ONLY REMEDY SOUGHT IS REPOSSESSION OF THE RENTED
PREMISES.  ID., AT 496.  THE COURT ALSO HELD THAT IF PERNELL WISHED TO
LITIGATE HIS COUNTERCLAIM FOR DAMAGES BEFORE A JURY, HE SHOULD HAVE
INSTITUTED A SEPARATE ACTION RATHER THAN RAISE THE COUNTERCLAIM IN THE
LANDLORD'S ACTION FOR REPOSSESSION.  ID., AT 498. 

BECAUSE OF THE NOVEL NATURE OF THE SEVENTH AMENDMENT QUESTION, WE
GRANTED CERTIORARI.  411 U.S. 915 (1973).  WE REVERSE. 

        I 

ALTHOUGH THE STATUTORY CAUSE OF ACTION NOW CODIFIED IN 16 - 1501
DATES BACK TO 1864, /2/  IT WAS UNNECESSARY UNTIL RECENTLY FOR ANY
COURT TO PASS UPON THE SEVENTH AMENDMENT QUESTION NOW BEFORE US.  PRIOR
TO 1970, D.C. CODE 13 - 702 PRESERVED THE RIGHT TO JURY TRIAL "(WHEN
THE AMOUNT IN CONTROVERSY IN A CIVIL ACTION . . . EXCEEDS $20, AND IN
ALL ACTIONS FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY.  . . ." 
SEE, E.G., KASS V. BASKIN, 82 U.S. APP. D.C. 385, 164 F.2D 513 (1947). 
THE MATTER NOW APPEARS IN A DIFFERENT LIGHT, HOWEVER, SINCE 13 - 702
WAS REPEALED BY THE DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL
PROCEDURE ACT OF 1970.  SEE PUB. L. 91 - 358, 142(5)(A), 84 STAT. 552. 

WE ARE MET AT THE OUTSET BY THE SUGGESTION THAT, NOTWITHSTANDING THE
REPEAL OF 13 - 702, IT MIGHT STILL BE POSSIBLE TO INTERPRET THE
RELEVANT STATUTES AS PROVIDING FOR A RIGHT TO JURY TRIAL.  IT IS, OF
COURSE, A "'CARDINAL PRINCIPLE THAT THIS COURT WILL FIRST ASCERTAIN
WHETHER A CONSTRUCTION OF THE STATUTE IS FAIRLY POSSIBLE BY WHICH THE
(CONSTITUTIONAL) QUESTION MAY BE AVOIDED.'"  UNITED STATES V. THIRTY
SEVEN PHOTOGRAPHS, 402 U.S. 363, 369 (1971). 

THE COURT OF APPEALS RECOGNIZED THAT "CONGRESS DID NOT MAKE CLEAR
WHAT IT INTENDED BY THE REPEAL OF THIS SECTION."  294 A.2D, AT 491. 
ALTHOUGH THE LEGISLATIVE HISTORY ON THIS QUESTION IS MEAGER, AN
ARGUMENT CAN BE MADE THAT CONGRESS IN 1970 HARBORED NO INTENT TO DO
AWAY WITH JURY TRIALS, BUT RATHER REPEALED 13 - 702 AS A HOUSEKEEPING
MEASURE IN THE BELIEF THAT JURY TRIALS WOULD CONTINUE TO BE AFFORDED IN
ALL CASES PREVIOUSLY COVERED BY THAT SECTION, INCLUDING ACTIONS FOR THE
RECOVERY OF POSSESSION OF REAL PROPERTY.  /3/  THE COURT OF APPEALS,
HOWEVER, APPEARS TO HAVE BEEN OF THE VIEW THAT, REGARDLESS OF
CONGRESSIONAL INTENT, IT WAS NO LONGER POSSIBLE TO INTERPRET THE
RELEVANT STATUTES AS PROVIDING A RIGHT TO JURY TRIAL IN LIGHT OF THE
OUTRIGHT REPEAL OF 13 - 702.  IN ITS VIEW, AFTER 1970 THE RIGHT TO JURY
TRIAL HAD TO STAND ON CONSTITUTIONAL GROUND IF IT WERE TO STAND AT
ALL.  WE FIND OURSELVES BOUND BY THAT COURT'S ANALYSIS OF THE EFFECT OF
THE 1970 ACT IN THE CIRCUMSTANCES OF THIS CASE. 

THIS COURT HAS LONG EXPRESSED ITS RELUCTANCE TO REVIEW DECISIONS OF
THE COURTS OF THE DISTRICT INVOLVING MATTERS OF PECULIARLY LOCAL
CONCERN, ABSENT A CONSTITUTIONAL CLAIM OR A PROBLEM OF GENERAL FEDERAL
LAW OF NATIONWIDE APPLICATION.  SEE, E.G., GRIFFIN V. UNITED STATES,
336 U.S. 704, 717 - 718 (1949); FISHER V. UNITED STATES, 328 U.S. 463,
476 (1946).  SEE ALSO MILLER V. UNITED STATES, 357 U.S. 301, 306
(1958).  IN THE PAST, THIS RELUCTANCE HAS TYPICALLY BEEN EXPRESSED WITH
REGARD TO POSITIONS TAKEN BY THE COURTS OF THE DISTRICT ON COMMON-LAW
QUESTIONS OF EVIDENCE AND SUBSTANTIVE CRIMINAL LAW.  BUT IN VIEW OF THE
RESTRUCTURING OF THE DISTRICT'S COURT SYSTEM ACCOMPLISHED BY THE COURT
REFORM ACT IN 1970, WE BELIEVE THE SAME DEFERENCE IS OWED THE COURTS OF
THE DISTRICT WITH RESPECT TO THEIR INTERPRETATION OF ACTS OF CONGRESS
DIRECTED TOWARD THE LOCAL JURISDICTION. 

ONE OF THE PRIMARY PURPOSES OF THE COURT REFORM ACT WAS TO
RESTRUCTURE THE DISTRICT'S COURT SYSTEM SO THAT "THE DISTRICT WILL HAVE
A COURT SYSTEM COMPARABLE TO THOSE OF THE STATE AND OTHER LARGE
MUNICIPALITIES."  H.R. REP. NO. 91 - 907, P. 23 (1970).  PRIOR TO 1970,
THE DISTRICT'S LOCAL COURTS AND THE UNITED STATES DISTRICT COURT AND
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, UNLIKE THEIR
COUNTERPARTS IN THE SEVERAL STATES, SHARED A COMPLEX AND OFTEN
CONFUSING FORM OF CONCURRENT JURISDICTION, WITH LOCAL-LAW MATTERS OFTEN
LITIGATED IN THE UNITED STATES DISTRICT COURT AND DECISIONS OF THE
DISTRICT OF COLUMBIA COURT OF APPEALS REVIEWABLE IN THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  SEE GENERALLY
IBID. 

THE 1970 ACT MADE FUNDAMENTAL CHANGES IN THIS STRUCTURE.  THE
DISTRICT OF COLUMBIA COURT OF APPEALS WAS MADE THE HIGHEST COURT OF THE
DISTRICT, "SIMILAR TO A STATE SUPREME COURT," AND ITS JUDGMENTS MADE
REVIEWABLE BY THIS COURT IN THE SAME MANNER THAT WE REVIEW JUDGMENTS OF
THE HIGHEST COURTS OF THE SEVERAL STATES.  SEE IBID.  SEE ALSO PUB. L.
91 - 358, 111, 84 STAT. 475, CODIFIED AT D.C. CODE 11 - 102; 172(A)(1),
84 STAT. 590, AMENDING 28 U.S.C. 1257.  THE RESPECTIVE JURISDICTIONS OF
THE NEWLY CREATED SUPERIOR COURT OF THE DISTRICT OF COLUMBIA AND OF THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WERE ADJUSTED
SO AS TO "RESULT IN A FEDERAL-STATE COURT SYSTEM IN THE DISTRICT OF
COLUMBIA ANALOGOUS TO COURT SYSTEMS IN THE SEVERAL STATES."  H.R. REP.
NO. 91 - 907, SUPRA. AT 35. 

THIS NEW STRUCTURE PLAINLY CONTEMPLATES THAT THE DECISIONS OF THE
DISTRICT OF COLUMBIA COURT OF APPEALS ON MATTERS OF LOCAL LAW--BOTH
COMMON LAW AND STATUTORY LAW--WILL BE TREATED BY THIS COURT IN A MANNER
SIMILAR TO THE WAY IN WHICH WE TREAT DECISIONS OF THE HIGHEST COURT OF
A STATE ON QUESTIONS OF STATE LAW.  /4/  CONGRESSIONAL ACTS DIRECTED
TOWARD THE DISTRICT, LIKE OTHER FEDERAL LAWS, ADMITTEDLY COME WITHIN
THIS COURT'S ART. III JURISDICTION, AND WE ARE THEREFORE NOT BARRED
FROM REVIEWING THE INTERPRETATIONS OF THOSE ACTS BY THE DISTRICT OF
COLUMBIA COURT OF APPEALS IN THE SAME JURISDICTIONAL SENSE THAT WE ARE
BARRED FROM RECONSIDERING A STATE COURT'SP INTERPRETATION OF A STATE
STATUTE.  SEE, E.G., O'BRIEN V. SHINNER, 414 U.S. 524, 531 (1974);
MEMORIAL HOSPITAL V. MARICOPA COUNTY, 415 U.S. 250, 256 (1974).  BUT
THE NEW COURT STRUCTURE CERTAINLY LENDS ADDITIONAL SUPPORT TO OUR
LONGSTANDING PRACTICE OF NOT OVERRULING THE COURTS OF THE DISTRICT ON
LOCAL LAW MATTERS "SAVE IN EXCEPTIONAL SITUATIONS WHERE EGREGIOUS ERROR
HAS BEEN COMMITTED."  FISHER V. UNITED STATES, 328 U.S., AT 476;
GRIFFIN V. UNITED STATES, 336 U.S., AT 718.  THIS PRINCIPLE, LONG
EMBEDDED IN PRACTICE AND NOW SUPPORTED BY THE CLEAR INTENT OF CONGRESS
IN ENACTING THE 1970 COURT REFORM ACT, MUST SERVE AS OUR GUDE IN THE
PRESENT CASE.  AS NO SUCH OBVIOUS ERROR WAS COMMITTED HERE, WE MUST
ACCEPT THE COURT OF APPEALS' CONCLUSION THAT THE RIGHT TO JURY TRIAL
MUST STAND OR FALL ON CONSTITUTIONAL GROUND AFTER THE REPEAL OF 13 -
702.  ACCORDINGLY, IT IS TO THE SEVENTH AMENDMENT ISSUE THAT WE NOW
TURN. 

        II 

D.C. CODE 16 - 1501 PROVIDES A REMEDY "(WHEN A PERSON DETAINS
POSSESSION OF REAL PROPERTY WITHOUT RIGHT, OR AFTER HIS RIGHT TO
POSSESSION HAS CEASED.  . . ."  THE STATUTE IS NOT LIMITED TO
SITUATIONS WHERE A LANDLORD SEEKS TO EVICT A TENANT, BUT MAY BE INVOKED
BY ANY "PERSON AGGRIEVED" BY A WRONGFUL DETENTION OF PROPERTY.  IBID.
SEE ALSO INFR,A AT 379.  UNDER THE STATUTE, WHEN A VERIFIED COMPLAINT
IS FILED BY THE PERSON AGRIEVED BY THE DETENTION, THE SUPERIOR COURT OF
THE DISTRICT OF COLUMBIA MAY ISSUE A SUMMONS TO THE DEFENDANT TO APPEAR
AND SHOW CAUSE WHY JUDGMENT SHOULD NOT BE GIVEN AGAINST HIM FOR THE
RESTITUTION OF POSSESSION.  THIS SUMMONS MUST BE SERVED SEVEN DAYS
BEFORE THEY DAY FIXED FOR THE TRIAL OF THE ACTION.  D.C. CODE 16 -
1502.  IF, AFTER THE TRIAL, IT APPEARS THAT THE PLAINTIFF IS ENTITLED
TO POSSESSION, JUDGMENT AND EXECUTION FOR POSSESSION SHALL BE AWARDED
IN HIS FAVOR WITH COSTS.  IF, ON THE OTHER HAND, THE PLAINTIFF NONSUITS
OR FAILS TO PROVE HIS CASE, THE DEFENDANT SHALL HAVE JUDGMENT AND
EXECUTION FOR HIS COSTS.  SEE D.C. CODE 16 - 1503. 

THE SEVENTH AMENDMENT PROVIDES: "IN SUITS AT COMMON LAW, WHERE THE
VALUE IN CONTROVERSY SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY
JURY SHALL BE PRESERVED.  . . ."  LIKE OTHER PROVISIONS OF THE BILL OF
RIGHTS, IT IS FULLY APPLICABLE TO COURTS ESTABLISHED BY CONGRESS IN THE
DISTRICT OF COLUMBIA.  SEE CAPITAL TRACTION CO. V. HOF, 174 U.S. 1, 5
(1899). 

THIS COURT HAS LONG ASSUMED THAT ACTIONS TO RECOVER LAND, LIKE
ACTIONS FOR DAMAGES TO A PERSON OR PROPERTY ARE ACTIONS AT LAW TRIABLE
TO A JURY.  IN WHITEHEAD V. SHATTUCK, 138 U.S. 146, 151 N1891), FOR
EXAMPLE, WE RECOGNIZED THAT 

"(IT WOULD BE DIFFICULT, AND PERHAPS IMPOSSIBLE, TO STATE ANY
GENERAL RULE WHICH WOULD DETERMINE, IN ALL CASES, WHAT SHOULD BE DEEMED
A SUIT IN EQUITY AS DISTINGUISHED FROM AN ACTION AT LAW . . .; BUT THIS
MAY BE SAID, THAT, WHERE AN ACTION IS SIMPLY FOR THE RECOVERY ANS
POSSESSION OF SPECIFIC REAL OR PERSONAL PROPERTY, OR FOR THE RECOVERY
OF A MONEY JUDGMENT, THE ACTION IS ONE AT LAW."  SEE ALSO SCOTT V.
NEELY, 140 U.S. 106, 110 (1891); ROSS V. BERNHARD, 396 U.S. 531, 533
(1970)9 

RESPONDENT SUGGESTS, HOWEVER, THAT THESE PRECEDENTS SHOULD BE
LIMITED TO ACTIONS TO RECOVER PROPERTY WHERE TITLE IS IN ISSUE AND THAT
ACTIONS BROUGHT UNDER 16 - 1501 SHOULD BE DISTINGUISHED AS ACTIONS FOR
THE RECOVERY OF POSSESSION WHERE CLAIMS OF TITLE ARE IRRELEVANT.  /5/
THE DISTINCTION BETWEEN TITLE TO AND POSSESSION OF PROPERTY, OF COURSE,
WAS WELL RECOGNIZED AT COMMON LAW.  SEE GRANT TIMBER & MFG. CO. V.
GRAY, 236 U.S. 133, 134 (1915).  BUT HOWEVER RELEVANT IT WAS FOR
CERTAIN PURPOSES, IT HAD NO BEARING ON THE RIGHT TO A JURY TRIAL.  THE
VARIOUS FORMS OF ACTION WHICH THE COMMON LAW DEVELOPED FOR THE RECOVERY
OF POSSESSION OF REAL PROPERTY WERE ALSO ACTIONS AT LAW IN WHICH TRIAL
BY JURY WAS AFFORDED. 

OVER THE COURSE OF ITS HISTORY, THE COMMON LAW DEVELOPED SEVERAL
POSSESSORY ACTIONS.  AMONG THE EARLIEST OF THESE WAS THE ASSIZE OF
NOVEL DISSEISIN WHICH DEVELOPED IN THE LATTER HALF OF THE 12TH CENTURY
AND PERMITTED ONE WHO HAD BEEN RECENTLY DISSEISED OF HIS TENEMENT TO BE
PUT BACK INTO SEISIN BY JUDGMENT OF THE KING'S COURT.  /6/  TRIAL BY
ASSIZE REPRESENTED ONE OF THE EARLIEST FORMS OF TRIAL BY JURY.  AFTER
THE PLAINTIFF LODGED HIS COMPLAINT, A WRIT WOULD ISSUE BIDDING THE
SHERIFF TO SUMMON 12 GOOD AND LAWFUL MEN OF THE NEIGHBORHOOD TO
"RECOGNIZE"  BEFORE THE KING'S JUSTICES /7/  WHETHER THE DEFENDANT HAD
UNJUSTLY DISSEISED THE PLAINTIFF OF HIS TENEMENT.  /8/  LIKE THE MODERN
CAUSE OF ACTION EMBODIED IN 16 - 1501, NOVEL DISSEISIN WAS A SUMMARY
PROCEDURE DESIGNED TO METE OUT PROMPT JUSTICE IN POSSESSORY DISPUTES. 
/9/ 

WRITS OF ENTRY, DATING FROM ABOUT THE SAME PERIOD, WERE DEVELOPED TO
ENCOMPASS SITUATIONS NOT COVERED BY THE ASSIZE OF NOVEL DISSEISIN. 
NOVEL DISSEISIN, FOR EXAMPLE, WAS APPLICABLE ONLY WHERE THE DEFENDANT
GAINED POSSESSION WRONGFULLY BY PUTTING THE PLAINTIFF OUT OF SEISIN. 
WRITS OF ENTRY, IN CONTRACT, PERMITTED RECOVER WHERE THE DEFENDANT
ENTERED INTO POSSESSION LAWFULLY BUT NO LONGER HAD RIGHTFUL
POSSESSION.  /10/  INDEED, ONE OF THE WRITS OF ENTRY, THE WRIT OF ENTRY
AD TERMINUM QUI PRAETERIT, COULD BE USED BY A PLAINTIFF TO RECOVER
LANDS FROM A DEFENDANT WHO HAD ORIGINALLY HELD THEM FOR A TERM OF
YEARS, WHICH TERM HAD EXPIRED.  /11/  THE WRIT, IN OTHER WORDS,
EMBODIED A CAUSE OF ACTION QUIRE SIMILAR TO THAT ENCOMPASSED IN 16 -
1501.  SIGNIFICANTLY FOR PRESENT PURPOSES, IT IS CLEAR THAT THEIR PARTY
COULD DEMAND A JURY TRIA.  /12/     BOTH OF THESE FORMS OF ACTION,
THOUGH NOT LEGALLY ABOLISHED UNTIL WELL INTO THE 19TH CENTURY, /13/
HAD FALLEN INTO DISUSE BY THE TIME OUR CONSTITUTION WAS DRAFTED.  BY
THEN, EJECTMENT HAD BECOME THE MOST IMPORTANT POSSESSORY ACTION. 
EJECTMENT ORIGINATED AS A VERY NARROW REMEDY, DESIGNED TO GIVE THE
LESSEE OF PROPERTY A CAUSE OF ACTION AGAINST ANYONE WHO EJECTED HIM,
INCLUDING HIS LESSOR.  /14/  BUT BY A VARIETY OF INTRICATE FICTIONS,
EJECTMENT EVENTUALLY DEVELOPED INTO THE PRIMARY MEANS OF TRYING EITHER
THE TITLE TO OR THE RIGHT TO POSSESSION OF REAL PROPERTY.  /15/     IN
PARTICULAR, EJECTMENT BECAME THE PRINCIPAL MEANS EMPLOYED BY LANDLORDS
TO EVICT TENANTS FOR OVERSTAYING THE TERMS OF THEIR LEASES, NONPAYMENT
OF RENT, OR OTHER BREACH OF LEASE CONVENANTS.  /16/  HAD SOUTHALL
REALTY LEASED A HOME N LONDON IN 1791 INSTEAD OF ONE IN THE DISTRICT OF
COLUMBIA IN 1971, IT NO DOUBT WOULD HAVE USED EJECTMENT TO SEEK TO
REMOVE ITS ALLEGEDLY DEFAULTING TENANT.  AND, AS ALL PARTIES HERE
CONCEDE, QUESTIONS OF FACT ARISING IN AN EJECTMENT ACTION WERE RESOLVED
BY A JURY.  /17/ 

NOTWITHSTANDING THIS HISTORY, THE COURT OF APPEALS REASONED THAT AN
ACTION UNDER 16 - 1501 WAS NOT THE "EQUIVALENT" OF AN ACTION OF
EJECTMENT.  294 A.2D, AT 492.  IT NOTED THAT ANOTHER SECTION OF THE
D.C. CODE SETS FORTH A MORE SPECIFIC ACTION OF EJECTMENT.  /18/
MOREOVER, THE EXPEDITED CHARACTER OF A 16 - 1501 PROCEEDING WAS SEEN AS
CONTRASTING SHARPLY WITH THE ARCHAIC LIMIATIONS AND CUMBERSOME
PROCEDURES THAT MARKED THE COMMON-LAW ACTION OF EJECTMENT.  IBID.
SINCE, IN ITS OPINION, NETHER 16 - 1501 NOR ITS EQUIVALENT EXISTED AT
COMMON LAW, THE COURT OF APPEALS HELD THAT THE SEVENTH AMENDMENT DID
NOT GUARANTEE THE RIGHT TO JURY TRIAL. 

IN OUR VIEW, THIS ANALYSIS IS FUNDAMENTALLY AT ODDS WITH THE TEST WE
HAVE FORMULATED FOR RESOLVING SEVENTH AMENDMENT QUESTIONS.  WE RECENTLY
HAD OCCASION TO NOTE THAT WHILE "THE THRUST OF THE AMENDMENT WAS TO
PRESERVE THE RIGHT TO JURY TRIAL AS IT EXISTED IN 1791, IT HAS LONG
BEEN SETTLED THAT THE RIGHT EXTENDS BEYOND THE COMMON-LAW FORMS OF
ACTION RECOGNIZED AT THAT TIME."  CURTIS V. LOETHER, 415 U.S. 189, 193
(1974).  THE PHRASE "SUITS AT COMMON LAW" INCLUDES NOT ONLY SUITS 

"WHICH THE COMMON LAW RECOGNIZED AMONG ITS OLD AND SETTLED
PROCEEDINGS, BUT SUITS IN WHICH LEGAL RIGHTS WERE TO BE ASCERTAINED AND
DETERMINED, IN CONTRADISTINCTION TO WHOSE WHERE EQUITABLE RIGHTS ALONE
WERE RECOGNIZED, AND EQUTABLE REMEDIES WERE ADMINISTERED.  . . . IN A
JUST SENSE, THE AMENDMENT THEN MAY WELL BE CONSTRUED TO EMBRACE ALL
SUITS WHICH NOT OF EQUITY AND ADMIRALTY JURISDICTION, WHATEVER MAY BE
THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS." 
PARSONS V. BEDFORD, 3 PET. 433, 447 (1830) (ENPHASIS IN ORIGINAL). 
WHETHER OR NOT A CLOSE EQUIVALENT TO 16 - 1501 EXISTED IN ENGLAND IN
1791 IS IRRELEVANT FOR SEVENTH AMENDMENT PURPOSES, FOR THAT AMENDMENT
REQUIRES TRIAL BY JURY IN ACTIONS UNHEARD OF AT COMMON LAW, PROVIDED
THAT THE ACTION INVOLVES RIGHTS AND REMEDIES OF THE SORT TRADITIONALLY
ENFORCED IN AN ACTION AT LAW, RATHER THAN IN AN ACTION IN EQUITY OR
ADMIRALTY.  SEE CURTIS V. LOETHER, SUPRA, AT 195. 

THE PROCEEDING ESTABLISHED BY 16 - 1501, WHILE A FAR CRY IN DETAIL
FROM THE COMMON-LAW ACTION OF EJECTMENT, SERVES THE SAME ESSENTIAL
FUNCTION--TO PERMIT THE PLAINTIFF TO EVICT ONE WHO IS WRONGFULLY
DETAINING POSSESSION AND TO REGAIN POSSESSION HIMSELF.  AS ONE
COMMENTATOR HAS NOTED, WHILE STATUTES SUCH AS 16 - 1501 WERE "UNKNOWN
TO THE COMMON LAW . . . (THEY ARE DEISGNED AS STATUTES FOR RELIEF, NOT
TO CREATE NEW CAUSES OF ACTION.  THE EVIDENT INTENTION IS TO GIVE THIS
SUMMARY RELIEF IN THOSE CASES WHERE . . . THE ACTION OF EJECTMENT WOULD
LIE."  /19/  INDEED, THE COURTS OF THE DISTRICT THEMSELVES HAVE
FREQUENTLY CHARACTERIZED THE ACTION CREATED IN 16 - 1501 AS A
"SUBSTITUTE"  FOR AN EJECTMENT ACTION.  /20/  MOREOVER, IT APPEARS THAT
EVERY ACTION RECOGNIZED IN 1791 FOR THE RECOVERY OF POSSESSION OF
PROPERTY CARRIED WITH IT THE RIGHT TO JURY TRIAL.  NEITHER RESPONDENT
NOR THE COURT OF APPEALS WAS ABLE TO POINT TO ANY EQUITABLE ACTION EVEN
REMOTELY RESEMBLING 16 - 1501.  SINE THE RIGHT TO RECOVER POSSESSION OF
REAL PROPERTY GOVERNED BY 16 - 1501 WAS A RIGHT ASCERTAINED AND
PROTECTED BY COURTS AT COMMON LAW, THE SEVENTH AMENDMENT PRESERVES TO
EITHER PARTY THE RIGHT TO TRIAL BY JURY. 

        III 

RESPONDENT ARGUES, HOWEVER, THAT THE CLOSEST HISTORICAL ANALOGUE TO
16 - 1501 WAS NEITHER AN ACTION AT LAW NOR AN ACTION IN EQUIT, BUT
RATHER A FORCIBLE ENTRY AND DETAINER STATUTE ENACTED IN THE REIGN OF
HENRY VI.  SEE 8 HEN.  6, C. 9 (1429).  THAT STATUTE MADE IT UNLAWFUL
TO "MAKE ANY FORCIBLE ENTRY IN LANDS AND TENEMENTS, OR OTHER
POSSESSIONS, OR THEM HOLD FORCIBLY."  ID., II.  JUSTICES OF THE PEACE
WERE DIRECTED TO ENFORCE ITS PROVISIONS.  IF COMPLAINT WERE MADE, THEY
WERE TO PLACE FORCIBLY WERE TO "BE TAKEN AND PUT IN THE NEXT GAOL,
THERE TO REMAIN CONVICT BY THE RECORD OF THE SAME JUSTICES OR JUSTICE,
UNTIL THEY HAVE MADE FINE AND RANSOM TO THE KING."  ID., I.  THE
JUSTICES OF THE PEACE WERE ALSO ENPOWERED "TO RESEIZE THE LANDS AND
TENEMENTS SO ENTERED OR HOLDEN AS AFORE, AND SHALL PUT THE PARTY SO PUT
OUT IN FULL POSSESSION OF THE SAME LANDS AND TENEMENTS.  . . ."  ID.,
III. 

WHILE RESPONDENT'S ARGUMENT IS LENT SOME SUPPORT BY THE FACT THAT 16
- 1501 IS PRESENTLY CAPTIONED "FORCIBLE ENTRY AND DETAINER," CLOSER
EXAMINATION OF THE PERTINENT HISTORY RECEALS THAT RESPONDENT HAS
MISCONSTRUED THE ACTUAL RELATIONSHIP BETWEEN THE TWO STATUTES. 

THE FIRST PRECEDESSOR OF 16 - 1501 WAS THE ACT OF JULY 4, 1864, C.
243, 13 STAT. 383.  /21/  THAT ACT PROVIDED A REMEDY FOR THREE SEPARATE
SITUATIONS: "WHEN FORCIBLE ENTRY IS MADE"; "WHEN A PEACABLE ENTRY IS
MADE AND THE POSSESSION UNLAWFULLY HELD BY FORCE"; AND "WHEN POSSESSION
IS HELD WITHOUT RIGHT, AFTER THE ESTATE IS DETERMINED BY THE TERMS OF
THE LEASE BY ITS OWN LIMITATION, OR BY NOTICE TO QUIT, OR OTHERWISE . .
. ."  SEE ID., 2. 

THERE IS NO QUESTION BUT THAT THE FIRST TWO OF THESE REMEDIES--FOR
FORCIBLE ENTRY OR FOR PEACEABLE ENTRY FOLLOWED BY POSSESSION UNLARFULLY
HELD BY FORCE--CAN BE TRACED DIRECTLY TO THE STATUTE OF HENRY VI.  /22/
THE ENGLISH STATUTE, HOWEVER, HAD NO PROVISION LIKE THAT IN THE 1864
ACT SPECIFICALLY DESIGNED FOR LANDORD-TENANT DISPUTES. 

IN 1953, CONGRESS AMENDED THE 1864 ACT AND DID AWAY ENTIRELY WITH
THE PROVISIONS RELATING TO FOCIBLE ENTRY AND PEACABLE ENTRY WITH
POSSESSION UNLAWFULLY HELD BY FORCE WHICH CAN BE TRACED TO THE ENGLISH
STATUTE.  SEE ACT OF JUNE 18.  1953, C. 130, 67 STAT. 66.  IN ITS
PLACE, CONGRESS ENACTED A GENERAL PROVISION DEALING WITH UNLAWFUL
DETENTION OF PROPERTY WHICH COULD BE INVOKED, LIKE 16 - 1501 TODAY,
"(WHENEVER ANY PERSON SHALL DETAIN POSSESSION OF REAL PROPERTY WITHOUT
RIGHT, OR AFTER HIS RIGHT TO POSSESSION SHALL HAVE CEASED.  . . ." 
IBID. 

NOT ONLY IS THE HISTORICAL NEXUS BETWEEN THE TWO STATUTES WEAK, IT
IS ALSO EVIDENT THAT THE ENGLISH FOCIBLE ENTRY AND DETAINER STATUTE AND
16 - 1501 SERVE TOTALLY DIFFERENT FUNCTIONS.  WHILE THE ENGLISH STATUTE
PROVIDED FOR THE RESTITUTION OF POSSESSION IN APPROPRIATE CASES, IT WAS
ESSENTIALLY A CRIMINAL PROVISION, PROSECUTED THROUGH THE USUAL CRIMINAL
PROCESS.  /23/  THE GRAVAMEN OF THE OFFENSE WAS THE USE OF VIOLENCE IN
OBTAINING OR DETAINING POSSESSION.  /24/ THE QUESTION IN AN ACTION
BROUGHT UNDER THE ENGLISH STATUTE WAS NOT WHO HAD THE BETTER RIGHT TO
POSSESSION.  IF ONE WITH THE BETTER RIGHT USED FORCE TO OUST ANOTHER,
HE COULD BE MADE TO RELINQUISH POSSESSION TO THE PARTY NE OUSTED AND
WOULD BE REMITTED TO SEEKING LEGAL PROCESS TO OBTAIN HIS RIGHTFUL
POSSESSION.  AS BLACKSTONE STATES, THERE WAS NO "INQUIRING INTO THE
MERITS OF THE TITLE:  FOR THE FORCE IS THE ONLY THING TO BE TRIED,
PUNISHED, AND REMEDIED.  . . ."  /25/ 

IN CONTRAST, 16 - 1501 IS NOT A CRIMINAL ACTION INTENDED TO REDRESS
THE USE OF FORCE, BUT RATHER WAS DESIGNED AS A GENERAL CIVIL REMEDY TO
DETERMINE WHICH OF TWO PARTIES HAS THE BETTER LEGAL RIGHT TO POSSESSION
OF REAL ESTATE.  AND, IN THIS RESPECT, 16 - 1501 IS NOT LIMITED, AS WAS
THE 1864 ACT, TO LANDLORD-TENANT DISPUTES, BUT HAS BEEN HELD TO
ENCOMPASS, FOR EXAMPLE, SUITS BY A PURCHASER AT A FORECLOSURE SALE TO
EVICT THE FORMER OWNER, /26/  BY THE HEIR OF PROPERTY TO EVICT THE
CURRENT OCCUPANT, /27/  AND BY A TENANT IN COMMON SEEKING TO SHARE
POSSESSION OF THE PREMISES.  /28/ 

EVEN WERE WE TO ACCEPT RESPONDENTHS CONTENTION THAT THE STATUTE OF
HENRY VI PROVIDES THE CLOSEST COMMON-LAW ANALOGUE FOR 16 - 1501, THAT
WOULD LEND NO SUPPORT TO ITS ARGUMENT THAT NO RIGHT JURY TRIAL SHOULD
BE RECOGNIZED IN ACTIONS UNDER 16 - 1501.  THE FACT OF THE MATTER IS
THAT JURY TRIALS BEFORE JUSTICES OF THE PEACE WERE AFFORDED INA CTIONS
TO RECOVER POSSESSION OF PROPERTY BROUGHT UNDER THE STATUTE OF HENRY
VI.  /29/  INDEED, THE STATUTE ITSELF PROVIDES FOR JURY TRIALS.  /30/ 

RESPONDENT CLAIMS, HOWEVER, THAT THIS TRIAL BY JURY BEFORE A JUSTICE
OF THE PEACE WAS NOT A TRIAL BY JURY AS THAT CONCEPT CAME TO BE
ESTABLISHED IN THE SEVENTH AMENDMENT. 

#HC380 RESPONDENT RELIES PRIMARILY ON OUR DECISION IN APITAL
TRACTION CO. V. HOG, 174 U.S. 1 (1899), WHERE THE COURT HELD THAT TRIAL
BY A JURY BEFORE A JUSTICE OF THE PEACE PRESIDING OVER A SMALL CLAIMS
SUIT IN THE DISTRICT OF COLUMBIA WAS NOT A TRIAL BY JURY IN THE
CONSTITUTIONAL SENSE.  THIS COURT RESAONED IN HOF THAT THE DISTRICT'S
JUSTICE OF THE PEACE 

"WAS NOT, PROPERLY SPEAKING, A JUDGE, OR HIS TRIBUNAL A COURT; LEAST
OF ALL, A COURT OF RECORD.  THE PROCEEDINGS BEFORE HIM WERE NOT
ACCORDING TO THE COURSE OF THE COMMON LAW.  . . . (THE ACT WHICH
PERMITTED HIM TO TRY CASES WITH A JURY) DID NOT REQUIRE HIM TO
SUPERINTEND THE COURSE OF THE TRIAL OR THE INSTRUCT THE JURY IN MATTER
OF LAW; NOR DID IT AUTHORIZE HIM, UPON THE RETURN OF THEIR VERDICT, TO
ARREST JUDGMENT UPON IT, OR TO SET IT ASIDE, FOR ANY CAUSE WHATEVER;
BUT MADE IT HIS DUTY TO ENTER JUDGMENT UPON IT FORTWITH, AS A THING OF
COURSE.  A BODY OF MEN, SO FREE FROM JUDICIAL CONTROL, WAS NOT A COMMON
LAW JURY; NOR WAS A TRIAL BY THEM A TRIAL BY JURY, WITHIN THE MEANING
OF THE SEVEHT AMENDMENT TO THE CONSTITUTION."  ID., AT 38 - 39. 

WE THINK RESPONDENT'S RELIANCE ON HOF IS MISPLACED.  ALTHOUGH
CONTAINING BROAD LANGUAGE TO THIS EFFECT, SEE ID., AT 18, HOF DOES NOT
STAND FOR THE PROPOSITION THAT A TRIAL BY JURY BEFORE A JUSTICE OF THE
PEACE WAS TOTALLY UNKNOWN AT COMMON LAW.  RATHER, HOF, RELIED ONT HE
FACT THAT AT COMMON LAW, JUSTICES OF THE PEACE HAD NO JURISDICTION
WHATEVER OVER CIVIL SUITS SIMILAR TO THE SMALL CLAIMS ACTION INVOLVED
IN THAT CASE.  ID., AT 16.  A TRIAL BEFORE A JUSTICE OF THE PEACE IN
THIS KIND OF CASE, WITH OR WITHOUT A JURY, WAS THEREFORE UNKNOWN AT
COMMON LAW, AND COULD NOT HAVE BEEN WITHIN THE CONTEMPLATION OF THE
SEVENTH AMENDMENT.  ID., AT 18. 

THE COURT RECOGNIZED IN HOF, HOWEVER, THAT ENGLISH JUSTIES OF THE
PEACE DID HAVE CRIMINAL JURISDICTION.  ID., AT 16.  AND, AS WE HAVE
SEEN, THIS CRIMINAL JURISDICTION EXTENDED TO TRIAL OF FORCIBLE ENTRY
AND DETAINERS AND INCLUDED TRIAL BY JURY.  HISTORY PLAINLY REVEALS THAT
A TRIAL BY JURY BEFORE A JUSTICE OF THE PEACE IN ENGLAND, UNLIKE TRIAL
BEFORE A JUSTICE OF THE PEACE IN THE DISTRICT OF COLUMBIA, WAS A JURY
TRIAL IN THE FULL CONSTITUTIONAL SENSE.  ENGLISH JUSTICES OF THE PEACE
WERE REQUIRED TO BE LEARNED IN THE LAW.  THEY WERE JUDGES OF RECORD AND
THEIR COURTS, COURTS OF RECORD.  THE PROCEDURES THEY FOLLOWED DIFFERED
IN NO ESSENTIAL MANNER FROM THAT OF THE HIGHER COURT OF ASSIZE HELD BY
THE KING'S JUDGES.  TRIAL BY JURY BEFORE THE JUSTICES OF THE PEACE
PROCEEDED IN THE USUAL MANNER OF A CRIMINAL TRIAL BY JURY IN THE KING'S
COURT.  /31/  RESPONDENT'S ATTEMPTED ANALOGY BETWEEN 16 - 1501 AND THE
ENGLISH FOCIBLE ENTRY AND DETAINER STATUTE, RATHER THAN CUTTING AGAINST
A RIGHT TO JURY TRIAL IN THE PRESENT CASE, LENDS FURTHER SUPPORT TO OUR
CONCLUSION THAT 16 - 1501 ENCOMPASSES RIGHTS AND REMEDIES WHICH WERE
ENFORCED, AT COMMON LAW, THROUGH TRIAL BY JURY.  /22/

        IV 

THE COURT OF APPEALS ALSO RELIED ON OUR OPINION IN BLOCK V. HIRSH,
256 U.S. 135 (1921), WHERE WE FACED A CHALLENGE TO THE
CONSTITUTIONALITY OF A STATUTE TRANSFERRING ACTIONS TO RECOVER
POSSESSION OF REAL PROPERTY FROM THE COURTS TO A RENT CONTROL
COMMISSION.  IT WAS THERE ARGUED THAT THE STATUTE DEPRIVED BOTH
LANDLORDS AND TENANTS OF THEIR RIGHT TO TRIAL BY JURY.  THE COURT,
SPEAKING THROUGH MR. JUSTICE HOLMES, REJECTED THIS SUGGESTION: 

     "THE STATUTE IS OBJECTED TO ON THE FURTHER GROUND THAT

  LANDLORDS AND TENANTS ARE DEPRIVED BY IT OF A TRIAL BY JURY ON

  THE RIGHT TO POSSESSION OF THE LAND.  IF THE POWER OF THE

  COMMISSION ESTABLISHED BY THE STATUTE TO REGULATE THE RELATION IS

  ESTABLISHED, AS WE THINK IT IS, BY WHAT WE HAVE SAID, THIS

  OBJECTION AMOUNTS TO LITTLE. 

      ##HC383 TO REGULATE THE RELATION AND TO DECIDE THE FACTS

  AFFECTING IT ARE HARDLY SEPARABLE."  ID., AT 158. 

THE COURT OF APPEALS REASONED THAT WE "COULD SCARCELY HAVE MADE THIS
OBSERVATION IF THE RIGHT TO JURY TRIAL WAS CONFERRED BY THE
CONSTITUTION."  294 A.2D, AT 496.  WE THINK THE COURT OF APPEALS
MISUNDERSTOOD THE RATIONALE OF THIS CASE.  BLOCK V. HIRSH MERELY
STANDARDS FOR THE PRINCIPLE THAT THE SEVENTH AMENDMENT IS GENERALLY
INAPPLICABLE IN ADMINISTRATIVE PROCEEDINGS, WHERE JURY TRIALS WOULD BE
INCOMPATIBLE WITH THE WHOLE CONCEPT OF ADMINISTRATIVE ADJUDICIATION. 
SEE CURTIS V. LOETHER, 415 U.S., AT 194.  SEE ALSO NLRB V. JONES &
LAUGHLIN STEEL CORP., 301 U.S. 1 (1937).  WE MAY ASSUME THAT THE
SEVENTH AMENDMENT WOULD NOT BE A BAR TO A CONGRESSIONAL EFFORT TO
ENTRUST LANDLORD-TENANT DISPUTES, INCLUDING THOSE OVER THE RIGHT TO
POSSESSION, TO AN ADMINISTRATIVE AGENCY.  CONGRESS HAS NOT SEEN FIT TO
DO SO, HOWEVER, BUT RATHER HAS PROVIDED THAT ACTIONS UNDER 16 - 1501 BE
BROUGHT AS ORDINARY CIVIL ACTIONS IN THE DISTRICT OF COLUMBIA'S COURT
OF GENERAL JURISDICTION.  WHERE IT HAS DONE SO, AND WHERE THE ACTION
INVOLVES RIGHTS AND REMEDIES RECOGNIZED AT COMMON LAW, IT MUST PRESERVE
TO PARTIES THEIR TIGHT TO A JURY TRIAL.  CURTIS V. LOETHER, SUPRA, AT
195. 

THE COURT OF APPEALS APPEARED TROUBLED BY THE BURDEN JURY TRIALS
MIGHT PLACE ON THE DISTRICT'S COURT SYSTEM AND BY THE POSSIBILITY THAT
A RIGHT TO JURY TRIAL WOULD CONFLICT WITH EFFORTS TO EXPEDITE JUDICIAL
DISPOSITION OF LANDLORD-TENANT CONTROVERSIES.  WE THINK IT DOUBTFUL,
HOWEVER, THAT THE RIGHT TO A JURY TRIAL WOULD SIGNIFICANTLY IMPAIR
THESE IMPORTANT INTERESTS.  AS INDICATED EARLIER, THE RIGHT TO TRIAL BY
JURY WAS RECOGNIZED BY STATUTE FOR OVER A CENTURY FROM 1864 TO 1970,
/33/  AND IT DOES NOT APPEAR TO HAVE POSED ANY UNMANAGEABLE PROBLEMS
DURING THAT PERIOD. 

IN THE AVERAGE LANDLORD-TENANT DISPUTE, WHERE THE FAILURE TO PAY
RENT IS ESTABLISHED AND NO SUBSTANTIAL DEFENSES EXIST, IT IS UNLIKELY
THAT A DEFENDANT WOULD REQUEST A JURY TRIAL.  AND, OF COURSE, THE TRIAL
COURT'S POWER TO GRANT SUMMARY JUDGMENT WHERE NO GENUINE ISSUES OF
MATERIAL FACT ARE IN DISPUTE PROVIDES A SUBSTANTIAL BULWARK AGAINST ANY
POSSIBILITY THAT A DEFENDANT WILL DEMAND A JURY TRIAL SIMPLY AS A MEANS
OF DELAYING AN EVICTION.  MORE IMPORTANTLY, HOWEVER, WE REJECT THE
NOTION THAT THERE IS SOME NECESSARY INCONSISTENCY BETWEEN THE DESIRE
FOR SPEEDY JUSTICE AND THE RIGHT TO JURY TRIAL.  WE NOTE, FOR EXAMPLE,
THAT THE OREGON LANDLORD-TENANT PROCEDURE AT ISSUE IN LINDSEY V.
NORMET, 405 U.S. 56 (1972), ALTHOUGH PROVIDING FOR A TRIAL NO LATER
THAN SIX DAYS AFTER SERVICE OF THE COMPLAINT UNLESS THE DEFENDANT
PROVIDED SECURITY FOR ACCURING RENT, NEVERTHELESS GUARANTEED A RIGHT TO
JURY TRIAL.  MANY OTHER STATES SIMILARLY PROVIDE FOR TRIAL BY JURY IN
SUMMARY EVICTION PROVEEDINGS.  /34/ 

SOME DELAY, OF COURSE, IS INHERENT IN ANY FAIR-MINDED SYSTEM OF
JUSTICE.  A LANDLORD-TENANT DISPUTE, LIKE ANY OTHER LAWSUIT, CANNOT BE
RESOLVED WITH DUE PROCESS OF LAW UNLESS BOTH PARTIES HAVE HAD A FAIR
OPPORTUNIRY TO PRESENT THEIR CASES.  OUR COURTS WERE NEVER INTENDED TO
SERVE AS RUBBER STAMPS FOR LANDLORDS SEEKING TO EVICT THEIR TENANTS,
BUT RATHER TO SEE THAT JUSTICE BE DONE BEFORE A MAN IS EVICTED FROM HIS
HOME. 

              REVERSED AND REMANDED. 

/1/  IN THE DISTRICT OF COLUMBIA, A TENANT MAY DEFEND AGAINST
EVICTION PROCEEDINGS FOR NONPAYMENT OF RENT ON THE GROUND THAT HOUSING
REGULATIONS HAVE NOT BEEN COMPLIED WITH AND THAT THE PREMISES ARE NOT
BEING MAINTAINED IN A HABITABLE CONDITION BY THE LANDLORD.  SEE JAVINS
V. FIRST NAT. REALTY CORP., 138 U.S. APP. D.C. 369, 428 F.2D 1071,
CERT. DENIED, 400 U.S. 925 (1970). 

/2/  SEE ACT OF JULY 4, 1864, C. 243, 13 STAT. 383.  SEE ALSO INFRA,
AT 377 - 378. 

/3/  THE SENATE VERSION OF THE COURT REFORM ACT RETAINED A STATUTORY
GUARANTEE OF A RIGHT TO JURY TRIAL ALMOST IDENTICAL TO 13 - 702.  SEE
S. 2601, 91ST CONG., 1ST SESS., 202 (SEPT. 16, 1969).  WHILE THE HOUSE
BILL, WHICH WAS ADOPTED BY THE CONFERENCE COMMITTEE, DID NOT CONTAIN A
SIMILAR PROVISION, THE HOUSE REPORT SEEMS TO INDICATE THAT 13 - 702 WAS
NOT REPEALED IN A CONSCIOUS EFFORT TO CHANGE THE PRACTICE OF AFFORDING
JURY TRIAL IN ACTIONS TO RECOVER POSSESSION OF REAL PROPERTY, BUT WAS
STRUCK "AS SUPERFLUOUS IN LIGHT OF CONSTITUTIONAL JURY TRIAL
REQUIREMENTS.  . . ."  H.R. REP. NO. 91 - 907, P. 164 (1970).  SEE ALSO
H.R. 16196, 91ST CONG., 2D SESS., 142 (5)(A) (MAR. 13, 1970); H.R.
CONF. REP. NO. 91 - 1303 (1970).  IT APPEARS THEN THAT CONGRESS ITSELF
BELIEVED THAT JURY TRIALS WERE CONSTITUTIONALLY REQUIRED IN ALL ACTIONS
PREVIOUSLY COVERED BY 13 - 702 AND WOULD CONTINUE TO BE PROVIDED IN
SUCH ACTIONS. 

/4/  WE DO NOT INTEND TO IMPLY THAT THE DISTRICT OF COLUMBIA
SUPERIOR COURT AND COURT OF APPEALS MUST BE TREATED AS STATE COURTS FOR
ALL PURPOSES.  CF. DISTRICT OF COLUMBIA V. CARTER, 409 U.S. 418
(1973).  THERE ARE APPARENTLY SEVERAL QUESTIONS AS YET UNRESOLVED
CONCERNING THE RELATIONSHIP BETWEEN THE DISTRICT OF COLUMBIA LOCAL
COURTS AND THE UNITED STATES DISTRICT COURT AND THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT COURT HAS JURISDICTION UNDER EITHER 28
U.S.C. 22454 OR 2255 TO HEAR HABEAS CORPUS PETITIONS BROUGHT BY PERSONS
IN CONFINEMENT BY VIRTUE OF CONVICTIONS HAD IN THE DISTRICT OF COLUMBIA
SUPERIOR COURT AND, IF IT DOES NOT, WHETHER THIS COURT HAS A SPECIAL
OBLIGATION TO RESOLVE CONFLICTS BETWEEN THE DISTRICT'S "LOCAL" AND
"FEDERAL" COURTS ON QUESTIONS OF CONSTITUTIONAL LAW RAISED IN SUCH
PETITIONS.  SEE D.C. CODE 16 - 1901 THROUGH 16 - 1909.  OTHER
UNRESOLVED QUESTIONS INVOLVE THE EXTENT TO WHICH THE PRINCIPLES OF
YOUNGER V. HARRIS, 401 U.S. 37 (1971), AND RELATED CASES APPLY TO THE
RELATIONSHIP BETWEEN THE DISTRICT'S TWO COURT SYSTEMS.  SEE GENERALLY
SULLIVAN V. MURPHY, 156 U.S. APP. D.D. 28, 50 - 54, 478 F.2D 938, 960 -
964, CERT. DENIED, 414 U.S. 880 (1973).  WE, OF COURSE, EXPRESS NO
VIEWS ON THESE ISSUES. 

/5/  PRIOR TO THE ENACTMENT OF THE COURT REFORM ACT IN 1970, D.C.
CODE 16 - 1504 PROVIDED THAT IF THE DEFENDANT IN AN ACTION BROUGHT
UNDER 16 - 1501 PLEADS TITLE IN HIMSELF OR IN ANOTHER UNDR WHOM HE
CLAIMS, AND PROVIDES A SURETY TO PAY DAMAGES, COSTS, AND REASONABLE
INTERVENING RENT FOR THE PREMISES, THE COURT (THEN THE DISTRICT OF
COLUMBIA COURT OF GENERAL SESSIONS) SHALL CERTIFY THE PROCEEDINGS TO
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  TODAY,
A RULE OF THE SUPERIOR COURT PROVIDES THAT WHEN AN ISSUE OF TITLE
INTRUDES IN AN ACTION BROUGHT UNDER 16 - 1501, THE CASE IS TRANSFERRED
FROM THE LANDLORD AND TENANT BRANCH WHICH NORMALLY TRIES ACTIONS UNDER
16 - 1501 TO THE REGULAR CIVIL DIVISION.  SEE 294 A.2D 490, 492 AND
N.8. 

/6/  SEE F. MAITLAND, THE FORMS OF ACTION AT COMMON LAW 27 - 29
(1936); 1 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 145 -
147 (2D ED. 1899); 3 W. BLACKSTONE, COMMENTARIES *187 - 188.  NOVEL
DISSEISIN, LIKE THE ACTION NOW EMBODIED IN 16 - 1501, WAS DESIGNED
PRIMARILY AS A POSSESSORY ACTION TO PERMIT ONE WHO HAD BEEN EJECTED
FROM HIS LAND TO BE RESTORED TO POSSESSION.  IF THE EJECTOR WISHED TO
RAISE QUESTIONS OF TITLE, HE COULD PROCEED LATER IN A SEPARATE ACTION. 
SEE T. PLUCKETT, A CONCISE HISTORY OF THE COMMON LAW 341 (4TH ED.
1948).  SEE ALSO GRANT TIMBER & MFG. CO. V. GRAY, 236 U.S. 133, 134
(1915).  CF. N. 5, SUPRA. 

/7/  SEE, E.G., MAITLAND, SUPRA, N. 6, AT 83 - 64.  UNLIKE THE
FORCIBLE ENTRY AND DETAINER REMEDY DISCUSSED INFRA, AT 376 - 381,
ASSIZES OF NOVEL DISSEISIN WERE PRESIDED OVER BY A JUDGE OF THE KING'S
COURT RATHER THAN A JUSTICE OF THE PEACE.  SEE IBID.  THE USE OF
ITINERANT JUSTICES OF THE KING'S COURT TO TRAVEL AROUND THE COUNTRYSIDE
ON A REGULAR BASIS TO PRESIDE OVER THE ASSIZES WAS CONFIRMED IN MAGNA
CARTA, C. XII (1225).  SEE ALSO 1 POLLOCK & MAITLAND, SUPRA, N. 6, AT
155 - 156. 

/8/  IN ITS ORIGIN TRIAL BY ASSIZE WAS SLIGHTLY DIFFERENT FROM TRIAL
BY JURY AS WE KNOW IT TODAY.  IN PARTICULAR THE JURORS, OR
"RECOGNITORS"  AS THEY WERE THEN KNOWN, WERE SUMMONED BY THE ORIGINAL
WRIT AND ASKED TO ANSWER A QUESTION POSED BY THE WRIT ITSELF AS
CONTRASTED TO THE MODERN PRACTICE WHEREBY JURORS ARE NOT CALLED INTO A
CASE UNTIL IT APPEARS THAT QUESTIONS OF FACT ARE RAISED BY THE
PLEADINGS.  SEE GENERALLY 1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 330
- 331 (1927).  IN COURSE OF TIME, HOWEVER, THE RECOGNITORS SUMMONED BY
THE WRIT OF NOVEL DISSEISIN ASSUMED THE FUNCTIONS OF A MODERN JURY. 
SEE 1 POLLOCK & MAITLAND, SUPRA, N. 6, AT 149; MAITLAND, SUPRA, N. 6,
AT 35. 

/9/  SEE MAITLAND, SUPRA, N. 6, AT 29; M. HALE, THE HISTORY OF THE
COMMON LAW 175 (4TH ED. 1779). 

/10/  SEE MAITLAND, SUPRA, N. 6, AT 44 - 46; PLUCKNETT, SUPRA, N. 6,
AT 342 - 343. 

/11/  ID., AT 343; MAITLAND, SUPRA, N. 6, AT 39; 3 BLACKSTONE,
SUPRA, N. 6, AT *183 N.Z. 

/12/  MAITLAND, SUPRA, N. 6, AT 39. 

/13/  SEE 3 & 4 WILL.  4, C. 27, 36 (1833). 

/14/  MAITLAND, SUPRA, N. 6, AT 47^ PLUCKNETT, SUPRA, N. 6, AT 354;
3 BLACKSTONE, SUPRA, N. 6, AT *199. 

/15/  THE CLASSIC FICTION WAS USED WHERE TWO PERSONS WISHED TO TRY
THE TITLE TO LAND.  ONE OF THEN LEASED IT TO AN IMAGINARY PERSON AND
THE OTHER LEASED IT TO ANOTHER IMAGINARY PERSON.  ON IMAGINARY LESSEE
"EJECTS" THE OTHER, AND IN ORDER TO TRY THE RIGHT TO POSSESSION OF THE
RIVAL IMAGINARY LESSEES, THE COURT MUST NECESSARILY DECIDE WHICH OF THE
REAL LESSORS HAD TITLE TO THE LAND.  SEE MAITLAND, SUPRA, N. 6, AT 57;
3 BLACKSTONE, SUPRA, N. 6, *199 - 204.  CF. M'ARTHUR V. PORTER, 6 PET.
205, 211 (1832). 

/16/  SEE, E.G., LITTLE V. HEATON, 1 SALK.  256, 91 ENG. REP. 227
(Q.B. 1702); ROE D. WEST V. DAVIS, 7 EAST 363, 103 ENG. REP. 140 (K.B.
1806); RIGHT D. FLOWER V. DARBY, 1 T.R. 159, 99 ENG. REP. 1029 (K.B.
1786); DOE D. SPENCER V. GODWIN, 4 M. & S. 265, 105 ENG. REP. 833 (K.B.
1815); DOE D. ASH V. CALVERT, 2 CMAP.  387, 170 ENG. REP. 1193 (N.P.
1810).  INDEED, THE USE OF EJECTMENT IN LANDLORD-TENANT DISPUTES BECAME
SO WIDESPREAD THAT A STATUTE WAS ENACTED TO SIMPLIFY ITS APPLICATION TO
THESE CASES.  SEE 4 GEO. 2, C.28 (1731). 

/17/  SEE WHITEHEAD V. SHATTUCK, 138 U.S. 146 (1891).  SEE ALSO DOE
D. CHENY V. BATTEN, 1 COWP.  243, 98 ENG. REP. 1066 (K.B. 1775);
GOODRIGHT D. CHARTER V. CORDWENT, 6 T.R. 219, 101 ENG. REP. 520 (K.B.
1795). 

/18/  D.C. CODE 16 - 1124.  THIS STATUTE IS APPARENTLY DERIVED FROM
4 GEO. 2, C.28, 2 - 4 (1731).  SEE N.16, SUPRA. 

/19/  SEE 3A, G. THOMPSON, REAL PROPERTY 1370, PP. 718 - 719
(1959). 

/20/  SEE, E.G., SHAPIRO V. CHRISTOPHER, 90 U.S. APP. D.C. 114, 123,
195 F.2D 785, 794 (1952); SERVICE PARKING CORP. V. TRANS-LUX RADIO CITY
CORP., 47 A.2D 400, 403 (D.C. MUN.  APP.  1946); SHIPLEY V. MAJOR, 44
A.2D 540, 541 (D.C. MUN.  APP.  1945). 

/21/  PRIOR TO 1864, LANDLORD-TENANT DISPUTES IN THE DISTRICT OF
COLUMBIA WERE GOVERNED BY A MARYLAND STATUTE, ACT OF MARYLAND OF 1793,
C.43, 2 W. KILTY, LAWS OF MARYLAND (1800), WHICH WAS INCORPORATED INTO
THE LAWS OF THE DISTIRCT BY THE ACT OF FEB. 27, 1801, C.15, 2 STAT.
103. 

/22/  THE 1864 ACT WAS ESSENTIALLY THE SAME AS AN 1836 MASSACHUSETTS
STATUTE.  SEE WILLIS V. EASTERN TRUST & BANKING CO., 169 U.S. 295
(1898).  THOSE PARTS OF THE MASSACHUSETTS ACT INVOLVING FORCIBLE ENTRY
AND FOCIBLE DETAINER WERE DERIVED FROM THE ENGLISH FOCIBLE ENTRY AND
DETAINER STATUTES, INCLUDING THAT OF HENRY VI.  SEE PAGE V. DWIGHT, 170
MASS. 29 (1897); BOYLE V. BOYLE, 121 MASS. 85 (1876). 

/23/  SUITS WERE BROUGHT, FOR EXAMPLE, IN THE NAME OF THE STATE. 
SEE, E.G., THE KING V. WILSON, 8 T.R. 357, 101 ENG. REP. 1432 (K.B.
1799); THE KING V. HARRIS, 1 SALK.  260, 91 ENG. REP. 229 (K.B. 1699);
THE KING V. DORMY, 1 SALK.  260, 91 ENG. REP. 229 (K.B. 1700).  THE
CASE WAS BROUGHT BY WAY OF INDICTMENT.  SEE FORD'S CASE, CRO.  JAC. 
151, 79 ENG. REP. 135 (K.B. 1607); W. WOODFALL, LANDLORD AND TENANT 814
(12TH ED. 1881). 

/24/  SEE THE KING V. WILSON, SUPRA.  IT APEPARS THAT IN ORDER FOR
THE ENTRY TO BE FOCIBLE, IT HAD TO BE ACCOMPANIED BY ACTUAL VIOLENCE OR
TERROR, SUCH AS ASSAULT, THE BREAKING OPEN OF DOORS, OR THE CARRYING
AWAY OF THE OTHER PARTY'S GOODS.  SEE WOODFALL, SUPRA, N. 23.  SEE ALSO
4 BLACKSTONE, SUPRA, N. 6, AT *148.  THE USE OF ACTUAL FORCE WAS A
PREREQUISITE TO RECOVERY UNDER THE FOCIBLE ENTRY AND DETAINER
PROVISIONS OF THE 1864 ACT APPLICABLE TO THE DISTRICT OF COLUMBIA PRIOR
TO 1953.  SEE THUSTON V. ANDERSON, 40 A.2D 342 (D.C. MUN.  APP. 
1944). 

/25/  BLACKSTONE, SUPRA, N.6, AT *148.  SEE IRON M. & H.R. CO. V.
JOHNSON, 119 U.S. 608 (1887). 

/26/  SEE, E.G., GLENN V. MINDELL, 74 A.ID 835 (D.C. MUN.  APP. 
1950); SURRATT V. REAL ESTATE EXCHANGE, 76 A.ID 587 (D.C. MUN.  APP. 
1950); SAYLES V. EDEN, 144 A.2D 895 (D.C. MUN.  APP.  1958). 

/27/  SEE, E.G., MAHONEY V. CAMPBELL, 209 A.2D 791 (D.C. CT. APP.
1965). 

/28/  SEE, E.G., BAGBY V. HONESTY, 149 A.2D 786 (D.C. MUN.  APP. 
1959). 

/29/  SEE 4 BLACKSTONE, SUPRA, N. 6, AT *148.  SEE, E.G., FORD'S
CASE, CRO JAC.  151, 79 ENG. REP. 132 (K.B. 1607).  C. BEARD, THE
OFFICE OF JUSTICE OF THE PEACE IN ENGLAND 68 (1904).     /30/  "AND
ALSO WHEN THE SAID JUSTICES OR JUSTICE MAKE SUCH INQUIRIES AS BEFORE,
THEY SHALL MAKE, OR ONE OF THEM SHALL MAKE, THEIR WARRANTS AND PRECEPTS
TO BE DIRECTED TO THE SHERIFF OF THE SAME COUNTY, COMMANDING HIM OF THE
KING'S BEHALF TO CAUSE TO COME BEFORE THEM, AND EVERY OF THEM,
SUFFICIENT AND INDIFFERENT PERSONS, DWELLING NEXT ABOUT THE LANDS SO
ENTERED AS BEFORE, TO INQUIRE OF SUCH ENTRIES.  . . ."  8 HEN.  6, C.9,
IV (1429). 

/31/  SEE GENERALLY BEARD, SUPRA, N. 29, AT 158 - 164; MCVICKER, THE
SEVENTEENTH CENTURY JUSTICE OF PEACE IN ENGLAND, 24 KY. L. J. 387, 392,
403 - 407 (1936). 

/32/  RESPONDENT ALSO RELIED ON THE FACT THAT THE PROCEDURE
APPLICABLE TO LANDLORD-TENANT DISPUTES IN THE DISTRICT OF COLUMBIA
BETWEEN 1801 AND 1864, WHICH HAD BEEN INCORPORATED FROM MARYLAND LAW,
SEE N. 21, SUPRA, ALSO INVOLVED A JURY OF 12 BEFORE A JUSTICE OF THE
PEACE.  THE MARYLAND ACT EMBODIED A SUMMARY MEANS OF RECOVERING
POSSESSION OF LANDS HELD BY TENANTS AFTER THE EXPIRATION OF THEIR
TERMS, AND PROVIDED THAT UPON COMPLAINT, TWO JUSTICES OF THE PEACE
SHALL, THROUGH A SHERIFF, SUMMON 12 GOOD AND LAWFUL MEN OF THE COUNTRY
TO APPEAR BEFORE THE JUSTICES TO DETERMINE WHETHER RESTITUTION OF THE
LAND SHOULD BE MADE TO THE LESSOR.  SEE ACT OF MARYLAND OF 1793, C.43,
2 W. KILTY, LAWS OF MARYLAND (1800). 

THE OCURT OF APPEALS FOUND THAT THIS MODE OF TRIAL, LIKE THE
PROCEDURE INVOLVED IN HOF, WAS SOMETHING LESS THAN A TRIAL BY JURY IN
THE CONSTITUTIONAL SENSE.  IT THEREFORE REASONED THAT THERE WAS NO
UNBROKEN HISTORY OF TRIAL BY JURY IN LANDLORD-TENANT ACTIONS IN THE
DISTRICT OF COLUMBIA AND BELIEVED THIS LENT ADDITIONAL SUPPORT TO ITS
CONCLUSION THAT NO JURY TRIAL WAS REQUIRED BY THE CONSTITUTION.  294
A.2D, AT 495. 

WE DISAGREE.  TO BEGIN WITH, THE MARYLAND STATUTE INVOLVES A
SPECIALIZED CAUSE OF ACTION, LIMITED TO LANDLORD-TENANT DISPUTES, QUITE
DIFFERENT FROM 16 - 1501, WHICH, AS INDICATED EARLIER, IS A GENERAL
PROVISION ENCOMPASSING ALL DISPUTES OVER THE POSSESSION OF LAND.  SEE
SUPRA, AT 379.  MOREOVER, THERE IS NO INDICATION, AND THE COURT BELOW
DID NOT FIND, THAT 16 - 1501 OR ANY OF ITS PREDECESSOR ACTS WERE
DERIVED FROM THIS MARYLAND LAW.  SEE SUPRA, AT 377 - 378.  WHETHER OR
NOT JURY TRIALS WERE CONSTITUTIONALLY REQUIRED IN THE MARYLAND ACTION
AFTER IT WAS INCORPORATED INTO THE LAW OF THE DISTRICT OF COLUMBIA, AND
WHETHER OR NOT THE PROCEDURE ACTUALLY AFFORDED BETWEEN 1801 AND 1864
AMOUNTED TO A FULL JURY TRIAL UNDER OUR DECISION IN HOF, ARE THEREFORE
IRRELEVANT TO THE ISSUE PRESENTED IN THIS CASE.  WE HAVE NO OCCASION TO
DECIDE, OVER 100 YEARS AFTER THE FACT, WHETHER IN SUITS BROUGHT BETWEEN
1801 AND 1864 UNDER THIS NOW DEFUNCT LANDLORD-TENANT STATUTE PARTIES
WERE DENIED THEIR SEVENTH AMENDMENT RIGHTS. 

/33/  THE ACT OF JULY 4, 1864, C. 243, 13 STAT. 383, CONTEMPLATED
DETERMINATIONS OF THE SUIT BY A JUSTICE OF THE PEACE WITH APPEAL TO THE
SUPREME COURT OF THE DISTRICT AND TRIAL DE NOVO BEFORE A JURY.  SEE,
E.G., LUCHS V. JONES, 8 D.C. (1 MACARTHUR) 345 (D.C. SUPREME CT.
1874).  SUBSEQUENT LEGISLATION, UP TO 1970, CAREFULLY PRESERVED THE
RIGHT TO JURY TRIAL.  SEE, E.G., ACT OF MAR 3, 1901, C. 854, 20 - 24
AND 80, 31 STAT. 1193 AND U201; ACT OF MAR. 3, 1921, C. 125, 3, 41
STAT. 1310. 

/34/  E.G., ARIZ. REV. STAT. ANN. 12 - 1176 (1956); COLO. RULE CIV.
PROC. 38(A) (1970); GA. CODE ANN. 105 - 1601, 105 - 1602 (1966); ILL.
REV. STAT., C. 57, 11A (1973); IND. ANN. STAT. 3 - 1605 (1968); CAL
CIV. PROC. CODE 1171 (1972); CONN. GEN. STAT. REV. 52 - 463 (1973);
KAN. STAT. ANN. 61 - 2309 (SUPP. 1974); KY. REV. STAT. ANN. 383.210
(1972); MICH. STAT. ANN. 27A.5738 (SUPP. 1974); N.Y. REAL PROP. 
ACTIONS 745 (1963); OHIO REV. CODE ANN. 1923.10 (1968). 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT. 

NORMAN C. BARNETT ARUGED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS MICHAEL BOUDIN. 

HERMAN MILLER ARUGED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS MICHAEL ROSS. 

ALLEN G. SIEGEL AND DANIEL C. KAUFMAN FILED A BRIEF FOR THE
APARTMENT HOUSE COUNCIL OF METROPOLITAN WASHINGTON, INC., AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :




SHEA V. VIALPANDO, 416 U.S. 251 


       SHEA, EXECUTIVE DIRECTOR, DEPARTMENT OF SOCIAL SERVICES OF

           COLORADO, ET AL., V. VIALPANDO

  CERTIRRARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 72 -1513.  ARGUED FEBRUARY 26, 1974--DECIDED APRIL 23,

           1974; 475 F.2D 731, AFFIRMED.) 


    SECTION 402 (A)(7) OF THE SOCIAL SECURITY ACT REQUIRES STATE

  AGENCIES IN ADMINISTERING THE AID TO FAMILITS WITH DEPENDENT

  CHILDREN (AFDC) PROGRAM TO "TAKE INTO CONSIDERATION . . . ANY

  EXPENSES REASONABLY ATTRIBUTABLE TO THE EARNING OF . . .

  INCOME."  SUCH EXPENSES ARE DEDUCTED FROM AN AFDC APPLICANT'S

  INCOME IN DETERMINING ELIGIBILITY FOR ASSISTANCE.  COLORADO'S

  AFDC REGULATIONS, WHICH PREVIOUSLY HAD PERMITTED THE DEDUCTION

  FROM INCOME OF ALL EXPENSES REASONABLY ATTRIBUTABLE TO

  EMPLOYMENT, INCLUDING TRANSPORTATION EXPENSES, WERE AMENDED IN

  1970 TO SUBJECT WORK-RELATED EXPENSES (WITH CERTAIN EXCEPTIONS)

  TO A UNIFORM ALLOWANCE OF $30 PER MONTH.  THIS SUBSTANTIALLY

REDUCED RESPONDENT'S MONTHLY DEDUCTIONS FOR WORK-RELATED

TRANSPORTATION EXPENSES AND THE CORRESPONDING INCREASE IN HER

  MONTYLY NE INCOME MADE HER INELIGIBLE FOR CINTINUED AFDC

  ASSISTANCE.  SHE THEN BROUGHT THIS ACTION FOR INJUNCTIVE AND

  DECLARATORY RELIEF, CLAIMING, INTER ALIA, THAT COLORADO'S

  STANDARDIZED WORK-EXPENSE ALLOWANCE VILATED 402 (A)(7).  THE

  DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR RESPONDENT, AND THE

  COURT OF APPEALS AFFIRMED.  HELD: THE COLORADO REGULATION

  CONFLICTS WITH 402 (A)(7) AND IS THEREFORE INVALID.  PP. 258 -

  266. 

     (A) IN LIGHT OF THE STATUTE'S LEGISLATIVE HISTORY AND THE

  NORMAL MEANING OF THE TERM "ANY," THE LANGUAGE OF 402 (A)(7)

  REQUIRING THE CONSIDERATION OF "ANY" REASONABLE WORK EXPENSES IN

  DETERMINING ELIGIBILITY FOR AFDC ASSISTANCE IS TO BE INTERPRETED

  AS A CONGRESSIONAL DIRECTIVE THAT NO LIMITATION, APART FORM THAT

  OF REASONABLENESS, MAY BE PLACED UPON RECOGNITION OF WORK-RELATED

  EXPENSES, AND HENCE A FIXED WORK-EXPENSE ALLOWANCE THAT DOES NOT

  PERMIT DEDUCTIONS FOR EXPENSES EXCEEDING THAT STANDARD DIRECTLY

  CONTRAVENES THE LANGUAGE OF THE STATUTE.  P. 260. 

     (B) STANDARDIZED TREATMENT OF WORK-RELATED EXPENSES WITHOUT

  PROVISION FOR SHOWING ACTUAL AND REASONABLE EXPENSES EXCEEDING

  THE STANDARD AMOUNT THREATENS TO DEFEAT THE PURPOSE OF THE

MANDATORY WORK-EXPENSE RECOGNITION PROVISION OF 402 (A)(7) OF

  ENCOURAGING AFDC RECIPIENTS TO SECURE AND RETAIN EMPLOYMENT,

  SINCE BY LIMITING WORK EXPENSES TO $30 PER MONTH THE COLORADO

  REGULATION RESULTS IN A DISINCENTIVE TO SEEK OR RETIAN EMPLOYMENT

  FOR ALL RECIPIENTS WHOSE REASONABLE WORK-RELATED EXPENSES EXCEED

  OR WOULD EXCEED THAT AMOUNT.  PP. 263 - 2659 

     (C) IT IS NOT THE ADOPTION OF A STANDARDIZED WORK-EXPENSE

  ALLOWANCE PER SE THAT VIOLATES 402 (A)(7), BUT THE FACT THAT THE

  STANDARD IS IN EFFECT A MAXIMUM OR ABSOUTE LIMITATION UPON THE

  RECOGNITION OF SUCH EXPENSES.  P. 265. 

     POWELL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

IN ADMINISTERING THE AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC)
PROGRAM OF THE SOCIAL SECURITY ACT OF 1935, AS AMENDED (ACT), 42 U.S.C.
601 ET SEQ., STATE AGENCIES ARE REQUIRED BY 402 (A)(7) OF THE ACT, 81
STAT. 881, 42 U.S.C 602 (A)(7), TO "TAKE INTO CONSIDERATION . . . ANY
EXPENSES REASONABLY ATTRIBUTABLE TO THE EARNING OF . . . INCOME."  SUCH
EMPLOYMENT-RELATED EXPENSES ARE DEDUCTED FROM AN AFDC APPLICANT'S
INCOME IN THE PROCESS OF DETERMINING ELIGIBILITY FOR ASSISTANCE.  WE
GRANTED CERTIORARI, 414 U.S. 999 (1973), TO DETERMINE WHETHER, IN LIGHT
OF 402 (A)(7), A STATE MAY ADOPT A STANDARDIZED ALLOWANCE FOR EXPENSES
ATTRIBUTABLE TO THE EARNING OF INCOME WHICH DOES NOT ALLOW AN APPLICANT
TO DEDUCT EXPENSES THAT EXCEED THE STANDARD.  WE HOLD THAT IT MAY NOT. 

        I 

THE AFDC PROGRAM IS DESIGNED TO PROVIDE FINANCIAL ASSISTANCE TO
NEEDY DEPENDENT CHILDREN AND THE PARENTS OR RELATIVE WHO LIVE WITH AND
CARE FOR THEM.  A PRINCIPAL PURPOSE OF THE PROGRAM, AS INDICATED BY 42
U.S.C. 601, IS TO HELP SUCH PARENTS AND RELATIVES "TO ATTAIN OR RETAIN
CAPABILITY FOR THE MAXIMUM SELF-SUPPORT AND PERSONAL INDEPENDENCE
CONSISTENT WITH THE MAINTENANCE OF CONTINUING PARENTAL CARE AND
PROTECTION . . . ."  THE PROGRAM "IS BASED ON A SCHEME OF COOPERATIVE
FEDERALISM,"  KING V. SMITH, 392 U.S. 309, 316 (1968).  IT IS FINANCED
IN LARGE MEASURE BY THE FEDERAL GOVERNMENT ON AP MATCHING-FUND BASIS,
AND PARTICIPATING STATES MUST SUBMIT AFDC PLANS IN CONFORMITY WITH THE
ACT AND THE REGULATIONS PROMULGATED THEREUNDER BY THE DEPARTMNET OF
HEALTH, EDUCATION, AND WELFARE (HEW).  THE PROGRAM IS, HOWEVER,
ADMINISTERED BY THE STATES, WHICH ARE GIVEN BROAD DISCRETION IN
DETERMINING BOTH THE STANDARD OF NEED AND THE LEVEL OF BENEFITS.  SEE
JEFFERSON V. HACKNEY, 406 U.S. 535, 541 (1972); ROSADO V. WYMAN, 397
U.S. 397, 408 - 409 (1970); DANDRIDGE V. WILLIANS, 397 U.S. 471, 478
(1970); KING V. SMITH, SUPRA, AT 318 - 319. 

UNDER HEW REGULATIONS ALL AFDC PLANS MUST SPECIFY A STATEWIDE
STANDARD OF NEED, WHICH IS THE AMOUNT DEEMED NECESSARY BY THE STATE TO
MAINTAIN A HYPOTHETICAL FAMILY AT A SUBSISTENCE LEVEL.  BOTH
ELIGIBILITY FOR AFDC ASSISTANCE AND THE AMOUNT OF BENEFITS TO BE
GRANTED AN INDIVIDUAL APPLICANT ARE BASED ON A COMPARISON OF THE
STATE'S STANDARD OF NEED WITH THE INCOME AND RESOURCES AVAILABLE TO
THAT APPLICANT.  45 CFR 233.20 (A)(2)(I).  THE "INCOME AND RESOURCES"
ATTRIBUTABLE TO AN APPLICANT, DEFINED IN 45 CFR 233.20 (A)(6)(III
VIII), CONSIST GENERALLY OF "ONLY SUCH NET INCOME AS IS ACTUALLY
AVAILABLE FOR CURRENT USE ON A REGULAR BASIS . . . AND ONLY CURRENTLY
AVAILABLE RESOURCES."  45 CFR 233.20 (A)(3) (II)(C).  SEE ALSO HEW,
SIMPLIFIED METHODS FOR CONSIDERATION OF INCOME AND RESOURCES (1965). 
IN DETERMINING NET INCOME, ANY EXPENSES REASONABLY ATTRIBUTABLE TO THE
EARNING OF INCOME ARE DEDUCTED FROM GROSS INCOME.  42 U.S.C. 602
(A)(7).  IF, TAKING INTO ACCOUNT THESE DEDUCTIONS AND OTHER DEDUCTIONS
NOT AT ISSUE IN THE INSTANT CASE, THE NET AMOUNT OF "EARNED INCOME" IS
LESS THAN THE PREDETERMINED STATEWIDE STANDARD OF NEED, THE APPLICANT
IS ELIGIBLE FOR PARTICIPATION IN THE PROGRAM AND THE AMOUNT OF THE
ASSISTANCE PAYMENTS WILL BE BASES UPON THAT DIFFERENCE.  45 CFR 233.20
(A)(3)(II)(A) AND (C). 

PRIOR TO MAY 1970, COLORADO'S AFDC REGULATIONS PERMITTED THE
DEDUCTION FORM INCOME OF ALL EXPENSES REASONABLY ATTRIBUTABLE TO
EMPLOYMENT, INCLUDING BUT NOT LIMITED TO THE ACTUAL COST OF
TRANSPORTATION, IF "ESSINTIAL TO RETAIN EMPLOYMENT."  /1/  CHILD CARE
EXPENSES AND MANDATORY PAYROLL DEDUCTIONS WERE ALSO TREATED AS
EMPLOYMENT-RELATED EXPENSES, AND ALL SUCH EXPENSES WERE COMPUTED ON AN
INDIVIDUALIZED BASIS.  IN MAY 1970, THIS POLICY WAS CHANGED BY THE
ESTABLISHMENT OF A MAXIMUM TRANSPORTATION WORK-EXPENSE ALLOWANCE OF
EITHER $30 PER MONTH, IF THE USE OF A CAR WAS ESSENTIAL, OR THE ACTUAL
EXPENSE OF PUBLIC TRANSPORTATION.  EFFECTIVE JULY 1, 1970, THE COLORADO
WORK-EXPENSE ALLOWANCE REGULATION WAS AGAIN AMENDED TO PROVIDE THAT IN
ADDITION TO MANDATORY PAYROLL DEDUCTIONS AND CHILD CARE EPXENSES: 

     "FOR EMPLOYMENT EXPENSES SUCH AS TRANSPORTATION, SPECIAL

  CLOTHING, UNION DUES, SPECIAL EDUCATION OR TRAINING COST,

  TELEPHONE, ADDITIONAL FOOD OR PERSONAL NEEDS, ETC., WHICH ARE AN

  OBLIGATION DUE TO THE EMPLOYMENT, AN ALLOWANCE OF $30 PER MONTH

  IS MADE FOR SUCH COSTS."  /2/

THUS, WHILE COLORADO CONTINUED TO ALLOW INDIVIDUALIZED TREATMENT OF
MANDATORY PAYROLL DEDUCTIONS AND CHILD CARE COSTS, ALL OTHER WORK
RELATED EXPENSES WERE SUBJECTED TO A UNIFORM ALLOWANCE OF $30, EVEN IF
AN APPLICANT COULD PROVE ACTUAL EXPENSES IN EXCESS OF THAT FIGURE.  THE
REGIONAL COMMISSIONER OF THE SOCIAL AND REHABILITATION SERVICE OF HEW
THEREAFTER ACCEPTED THE INCORPORATION OF THIS PROVISION INTO COLORADO'S
AFDC PLAN.  /3/ 

WHEN THIS SUIT WAS COMMENCED IN JULY 1970, MRS. VIALPANDO WAS
EMPLOYED SOME EIGHT MILES FROM THE SMALL COLORADO COMMUNITY IN WHICH
SHE RESIDED WITH HER TWO-YEAR-OLD DAUGHTER.  SINCE NO PUBLIC
TRANSPORTATION WAS AVAILABLE, RESPONDENT TRAVELED TO AND FROM WORK EACH
DAY IN A USED AUTOMOBILE SHE HAD PURCHASED FOR THAT PURPOSE.  IN MAKING
THE REQUISITE ELIGIBILITY AND ASSISTANCE DETERMINATIONS UNDER THE
COLORADO AFDC PROGRAM, MRS. VIALPANDO HAD BEEN PERMITTED TO DIDUCT
$47.30 IN MILEAGE COSTS AND $63.81 IN CAR PAYMENTS.  /4/  FROM HER
MONTHLY GROSS INCOME.  THESE DEDUCTIONS OF APPROXIMATELY $110 PER
MONTH, COUPLED WITH CHILD CARE AND MANDATORY PAYROLL DEDUCTIONS,
ENTILED HER OT AN AFDC GRANT OF $74 PER MONTH FOR HERSELF AND HER
DAUGHTER.  THE EFFECT OF THE JULY 1970 AMENDMENT OF THE COLORADO AFDC
REGULATIONS WAS TO REDUCE RESPONDENT'S MONTHLY DEDUCTIONS FOR
TRANSPORTATION EXPENSES RELATED TO EMPLOYMENT FORM $110 TO $30.  THE
CORRESPONING INCREASE IN HER MONTHLY NET EARNED INCOME RENDERED HER
INELIGIBLE FOR CINTINUED AFDC ASSISTANCE.  /5/ 

RESPONDENT THEREUPON BROUGHT THIS CLASS ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLORADO UNDER 42 U.S.C. 1983 AND 28
U.S.C. 1343 (3) AND (4).  SHE SOUGHT THE CONVENING OF A THREE-JUDGE
DISTRICT COURT, AND REQUIESTED INJUNCTIVE RELIEF AND A DECLARATORY
JUDGMENT THAT THE COLORADO STANDARDIZED WORK-EXPENSE ALLOWANCE VILATED
402 (A)(7) OF THE ACT AND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  NAMED AS DEFENDANTS WERE EXECUTIVE DIRECTOR OF THE COLORADO
DEPARTMENT OF SOCIAL SERVICES AND OTHER STATE OFFICERS INVOLVED IN
ADMINISTERING COLORADO'S AFDC PROGRAM.  UPON STIPULATED FACTS AND IN
RELIANCE UPON 402 (A)(7) OF THE ACT, THE DISTRICT COURT IN AN
UNREPORTED ORDER GRANTED RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND
ENJOINED ENFORCEMENT OF THE CHALLENGED REGULATION.  /6/  FINDING THE
PENDENT FEDERAL STATUTORY CLAIM DISPOSITIVE, THE DISTRICT COURT
PROPERLY DID NOT REACH THE CONSITUTIONAL ISSUE AND PROPERLY DID NOT
CONVENE A THREE-JUDGE COURT.  HAGANS V. LAVINE, 415 U.S. 528 (1974). 

THE UNITED STATES COURT OF APPELS FOR THE TENTH CIRCUIT AFFIMED. 
475 F.2D 731 (1973).  RELYING ON THE LANGUAGE AND THE LEGISLATIVE
HISTORY OF 402(A)(7) AND ON OTHER PROVISIONS OF THE ACT, THE COURT
INTERPRETED THE WORDS "ANY EXPENSES" IN 402(A)(7) TO MEAN "ALL ACTUAL
EXPENSES," AND HELD THAT THE STANDARDIZED ALLOWANCE DID NOT MEET THIS
REQUIREMENT.  THE COURT REASONED THAT THE STATUTE COULD BE READ TO
PERMIT THE USE OF A STANDARDIZED ALLOWANCE FOR EMPLOYMENT EXPENSES, BUT
ONLY WHERE SUCH AN ALLOWANCE WAS ADEQUATE TO COVER ALL ACTUAL
EXPENSES.  WE AGREE. 

        II 

THE SOCIAL SECURITY ACT OF 1935, AS ORIGINALLY ENACTED, 49 STAT.
620, DID NOT EXPRESSLY REQUIRE THAT STATES ALLOW AFDC BENEFICIARIES TO
DEDUCT FORM GROSS INCOME EXPENSES INCURRED IN CONNECTION WITH THE
EARING OF INCOME.  THE PRECURSOR TO 402 (A)(7), WHICH APPEARED IN THE
1939 AMENDMENTS TO THE ACT, 53 STAT. 1379, PROVIDED SIMPLY THAT: 

"(THE STATE AGENCY SHALL, IN DETERMINING NEED, TAKE INTO
CONSIDERATION ANY OTHER INCOME AND RESOURCES OF ANY CHILD CLAIMING AID
TO DEPENDENT CHILDREN."  THE SOCIAL SECURITY BOARD, THE FEDEAL ENTITY
THEN OVERSEEING THE CATEGORICAL PUBLIC ASSISTANCE PROGRAMS, SOON
RECOGNIZED THAT UNDER THE PREDECESSOR OF THE AFDC PROGRAM /7/
RECIPIENT FAMILIES WITH WORKING MEMBERS INCURRED CERTAIN EMPLOYMENT
RELATED EXPENSES THAT REDUCED AVAILABLE INCOME BUT WERE NOT TAKEN INTO
ACCOUNT BY THE STATES IN DETERMINING ELIGIBILITY FOR AFDC ASSISTANCE. 
IN DEEPING WITH THE ACT'S PURPOSE OF ENCOURAGING EMPLOYMENT EVEN WHEN
THE INCOME PRODUCED THEREBY DID NOT ELIMINATE ENTIRELY THE NEED OFR
PUBLIC ASSISTANCE, THE BOARD RECOGNIZED THAT A FAILURE TO CONSIDER WORK
RELATED EXPENSES COULD RESULT IN A DISINCENTIVE TO SEEK OR RETAIN
EMPLOYMENT.  ACCORDINGLY, THE STATES WERE PERMITTED BUT NOT REQUIRED TO
ALLOW CREDIT FOR WORK-RELATED EXPENSES IN DETERMINING ELIGIBILITY. 
/8/ 

AS PART OF A GENERAL AMENDMENT OF THE ACT IN 1962, PUB. L. 87 - 543,
76 STAT. 185, CONGRESS MADE MANDATORY THE WIDESPREAD BUT THEN OPTIONAL
PRACTICE OF DEDUCTING EMPLOYMENT EXPENSES FROM TOTAL INCOME IN
DETERMINING ELIGIBILITY FOR ASSISTANCE.  SECTION 402 (A)(7) OF THE ACT
AS THUS AMENDED PROVIDED IN RELEVANT PART: 

     "(THE STATE AGENCY SHALL, IN DETERMINING NEED, TAKE INTO

  CONSIDERATION ANY OTHER INCOME AND RESOURCES OF ANY CHILD OR

  RELATIVE CLAIMING AID TO FAMILIES WITH DEPENDENT CHILDREN, AS

  WELL AS ANY EXPENSES REASONABLY ATTRIBUTABLE TO THE EARNING OF

  ANY SUCH INCOME . . . ."  (EMPHASIS ADDED.) 

BY ITS TERMS, 402 (A)(7) REQUIRES THE CONSIDERATION OF "ANY"
REASONABLE WORK EXPENSES IN DETERMINING ELIGIBILITY FOR AFDC
ASSISTANCE.  IN LIGHT OF THE EVOLUTION OF THE STATUTE AND THE NORMAL
MEANING OF THE TERM "ANY,"  WE READ THIS LANGUAGE AS A CONGRESSIONAL
DIRECTIVE THAT NO LIMITATION, APART FORM THAT OF REASONABLENESS, MAY BE
PLACED UPON THE RECOGNITION OF EXPENSES ATTRIBUTABLE TO THE EARNING OF
INCOME.  ACCORDINGLY, A FIXED WORK-EXPENSE ALLOWANCE WHICH DOES NOT
PERMIT DEDUCTIONS FOR EXPENSES IN EXCESS OF THAT STANDARD IS DIRECTLY
CONTRARY TO THE LANGUAGE OF THE STATUTE. 

PETITIONERS, RELYING UPON THE "TAKE INTO CONSIDERATION"  PHRASE OF
402 (A)(7), ARGUE THAT THE REQUIREMENT OF "CONSIDERATION" IS SARISFIED
BY THE USE OF STATISTICAL AVERAGE OF THE ACTUAL EXPENSES OF ALL AFDC
PARTICIPANTS IN THE STATE.  BUT THIS AGRUMENT IGNORES THAT FACT THAT
THE PHRASE "TAKE INTO CONSIDERATION" MODIFIES "INCOME AND RESOURCES . .
. AS WELL AS ANY EXPENSES REASONABLY ATTRIBUTABLE TO THE EARNING OF ANY
SUCH INCOME" (EMPHASIS ADDED).  THUS, IT SEEMS INESCAPABLE THAT
WHATEVER TREATMENT IS ACCORDED INCOME MUST ALSO BE EXTENDED TO EXPENSES
ATTRIBUTABLE TO THE EARNING OF INCOME.  AND, IT HAS CONSISTENTLY BEEN
THE PRACTICE TO COMPUTE THE INCOME OF AN AFDC APPLICANT ON AN
INDIVIDUAL BASIS. 

FROM THE INCEPTION OF THE ACT, CONGRESS HAS SOUGHT TO ENSURE THAT
AFDC ASSISTANCE IS PROVIDED ONLY TO NEEDY FAMILIES, AND THAT THE AMOUNT
OF ASSISTANCE ACTUALLY PAID IS BASED ON THE AMOUNT NEEDED IN THE
INDIVIDUAL CASE AFTER OTHER INCOME AND RESOURCES ARE CONSIDERED.  /9/
CONGRESS HAS BEEN CAREFUL TO ENSURE THAT ALL OF THE INCOME AND
RESOURCES PROPERLY ATTRIBUTABLE TO A PARTICULAR APPLICANT BE TAKEN INTO
ACCOUNT, AND THIS INDIVIDUALIZED APPROACH HAS BEEN REFLECTED IN THE
IMPLEMENTING REGULATIONS.  FOR EXAMPLE, HEW'S BROAD DEFINITION OF
"EARNED INCOME" AS "INCOME IN CASH OR IN KIND EARNED BY A NEEDY
INDIVIDUAL THROUGHT THE RECEIPT OF WAGES, SALARY, COMMISSIONS, OR
PROFIT FORM ACTIVITIES IN WHICH HE IS ENAGAGED AS A SELF-EMPLOYED
INDIVIDUAL OR AS AN EMPLOYEE,"  45 CFR 233.20 (A)(6)(III), AND ITS MORE
SPECIFIC DESCRIPTIONS OF COMMISIONED, SALARIED, AND SELF-EMPLOYMENT
DERIVED INCOME IN 45 CFR 233.20 (A)(6) (IV-VIII), /10/  DEMONSTRATE ITS
VIEW THAT THE DETERMINATION OF NEED IN EACH CASE IS TO BE BASED UPON AN
ASSESSMENT OF THE PARTICULAR INDIVIDUAL'S AVAILABLE INCOME AND
RESOURCES.  MOREOVER, INDIVIDUALIZED CONSIDERATION OF AVAILABLE INCOME
AND RESOURCES IS CLEARLY CONTEMPLATED BY HEW REGULATIONS PROVIDING FOR
THE EXCLUSION OF SUCH ITEMS AS SCHOLARSHIP FUNDS AND LOANS, SEE 45 CFR
233.20 (A)(3)(II-VII), AND REQUIRING THAT CERTAIN ITEMS SUCH AS FOOD
STAMPS BE DIDUCTED, 45 CFR 233.20 (A)(4).  THUS, IF INCOME AND EXPENSES
RELATED TO THE PRODUCTION OF INCOME ARE TO BE TREATED ALIKE, AS THE
TERMS OF 402 (A)(7) APPEAR TO REQUIRE, BOTH MUST BE CONSIDERED ON AN
INDIVIDUALIZED BASIS.  /11/ 

THE LITERAL IMPORT OF 402 (A)(7) IS CONFIRMED BY THE STATUTE'S
LEGISLATIVE HISTORY.  THE CONGRESSIONAL PURPOSE IN REQUIRING THE STATES
TO TAKE INTO CONSIDERATION EMPLOYMENT EXPENSES WAS CLEARLY SET FORTH IN
S. REP. NO. 1589, 87TH CONG., 2D SESS., 17 - 18 (1962), WHICH EXPLAINED
THAT: 

     "UNDER PRESENT LAW . . . STATES ARE PERMITTED, BUT NOT

  REQUIRED, TO TAKE INTO CONSIDERATION THE EXPENSES AN INDIVIDUAL

  HAS IN EARNING ANY INCOME (THIS PRACTICE IS NOT UNIFORM IN THE

  COUNTRY AND IN A SUBSTANTIAL NUMBER OF STATES FULL CONSIDERATION

  OF SUCH EXPENSES IS NOT GIVEN).  THE COMMITTEE BELEIVES THAT IT

IS ONLY REASONALBE FOR THE STATES TO TAKE THESE EXPENSES FULLY

  INTO ACCOUNT.  UNDER EXISTING LAW IF THESE WORK EXPENSES ARE NOT

  CONSIDERED IN DETERMINING NEED, THEY HAVE THE EFFECT OF PROVIDING

  A DISINCENTIVE TO WORKING SINCE THAT PORTION OF THE FAMILY BUDGET

  SPENT FOR WORK EXPENSES HAS THE EFFECT OF REDUCING THE AMOUNT

  AVAILABLE FOR FOOD, CLOTHING, AND SHELTER.  THE BILL HAS,

  THEREFORE, ADDED A PROVISION IN ALL ASSISTANCE TITLES REQUIRING

  THE STATES TO GIVE CONSIDERATION TO ANY EXPENSES REASONABLY

  ATTRIBUTABLE TO THE EARNING OF INCOME."  (EMPHASIS ADDED.) 

VIRTUALLY IDENTICAL LANGUAGE APPEARS IN THE HOUSE REPORT.  SEE H.R.
REP. NO. 1414, 87TH CONG., 2D SESS. 23 (1962).     CONGRESS THUS SOUGHT
TO ENCOURAGE AFDC RECIPIENTS TO SECURE AND RETAIN EMPLOYMENT BY
REQUIRING THE STATES TO TAKE INTO ACCOUNT FULLY ANY EXPENSES
ATTRIBUTABLE TO THE EARNING OF INCOME IN DETERMINING ELIGIBILITY FOR
ASSISSTANCE.  SUCH EXPENSES REDUCE THE LEVEL OF ACTUALLY AVAILABLE
INCOME, AND IF NOT DEDUCTED FROM GROSS INCOME WILL NOT PRODUCE A
CORRESPONDING INCREASE IN AFDC ASSISTANCE.  FAILING TO ALLOW THE
DEDUCTION OF REASONABLE EXPENSES MIGHT WELL DISCOURAGE THE APPLICANT
FORM SEEKING OR RETAINING EMPLOYMENT WHEREBY SUCH EXPENSES ARE
INCURRED.  SECTION 402 (A)(7) WAS AIMED AT REMOVING THIS DISINCENTIVE. 
AS THEN SECRETARY OF HEW RIBICOFF EXPLAINED THE LEGISLATION IN
TESTIMONY BEFORE THE SENATE:     "(WE ARE TRYING TO DO. . . EVERYTHING
WE CAN TO ENCOURAGE PEOPLE TO GET A JOB AND WORK AND WE FEEL IT IS
IMPORTANT TO ENCOURAGE THE STATES.  BY HAVING THIS PROVISION, THE STATE
WILL TAKE INTO ACCOUNT THESE EXPENSES SO PEOPLE WILL GET JOBS.  I
BELIEVE THAT THE STATE SHOULD GIVE THEM AN ALLOWANCE FOR THOSE ITEMS
THAT ARE NECESSARY FOR THEM TO GET THE JOB."  HEARINGS ON THE PUBLIC
ASSISTANCE ACT OF 1962 BEFORE THE SENATE COMMITTEE ON FINANCE, 87 TH
CONG., 2D SESS., 152 (1962).  /12/ 

STANDARDIZED TREATMENT OF EMPLOYMENT-RELATED EXPENSES WITHOUT
PROVISION FOR DEMONSTRATING ACTUAL AND REASONABLE EXPENSES IN EXCESS OF
THAT STANDARD AMOUNT, SUCH AS COLORADO HAS ADOPTED, THREATENS TO DEFEAT
THE GOAL CONGRESS SOUGHT TO ACHEIVE IN ADOPTING THE MANDATORY WORK
EXPENSE RECOGNITION PROVISIONS OF 402 (A)(7).  BY LIMITING EMPLOYMENT
EXPENSES TO $30 PER MONTH, THE COLORADO REGULATION RESULTS IN A
DISINCENTIVE TO SEEK OR RETAIN EMPLOYMENT FOR ALL RECIPIENTS WHOSE
REASONABLE WORK-RELATED EXPENSES EXCEED OR WOULD EXCEED THAT AMOUNT. 
ACCORDINGLY, THE COLORADO REGULATION CONFLICTS WITH FEDERAL LAW AND IS
THEREFORE INVALID. 

IT IS, OF COURSE, NOT THE ADOPTION OF A STANDARDIZED WORK-EXPENSE,
ALLOWANCE PER SE WHICH WE HOLD TO BE VIOLATIVE OF 402 (A)(7) OF THE
ACT, BUT THE FACT THAT THE STANDARD USED BY COLORADO IS IN EFFECT A
MAXIMUM OR ABSOLUTE LIMITATION UPON THE RECOGNITION OF SUCH EXPENSES. 
AS THE COURT OF APPEALS CORRECTLY OBSERVED, A STANDARD ALLOWANCE WOULD
BE PERMISSIBLE, AND WOULD SUBSTANTIALLY SERVE PETITIONERS' INTEREST IN
ADMINISTRATIVE EFFICIENCY, IF IT PROVIDED FOR INDIVIDUALIZED
CONSIDERATION OF EXPENSES IN EXCESS OF THE STANDARD AMOUNT.  SEE 475
F.2D, AT 735.  SEE ALSO ANDERSON V. GRAHAM, 492 F.2D 986 (CA8 1973);
ADAMS V. PARHAM, CIV. NO. 16041 (ND GA. APR. 14, 1972) (UNPUBLISHED);
AND COMPAGNUOLO V. WHITE, CIV. NO. 13968 (CONNC.  JUNE 22, 1972)
(UNPUBLISHED).  SUCH A STANDARD ALLOWANCE WOULD COMPOET FULLY WITH THE
STATUTORY REQUIREMENT THAT ANY REASONABLE WORK EXPENSES BE CONSIDERED,
AND WOULD ALLOW INDIVIDUALIZED TREATMENT WHERE NECESSARY.  /13/ 

AS THE COURT HAS PREVIOUSLY OBSERVED, THE AFDC PROGRAM IS AN AREA IN
WHICH CONGRESS AT TIMES "HAS VOICED ITS WISHES IN MUTED STRAINS AND
LEFT IT TO THE COURTS TO DISCERN THE THEME IN THE CACOPHONY OF
POLITICAL UNDERSTANDING."  ROSADO V. WYMAN, 397 U.S., AT 412.  BUT AS
TO REASONABLE EXPENSES ATTRIBUTABLE TO THE EARNING OF INCOME, CONGRESS
HAS SPOKEN WITH FIRMNESS AND CLARITY. 

THE JUDGMENT IS AFFIRMED. 

              IT IS SO ORDERED.  /1/  SECTION 4313.13, VOL 4,
COLORADO DIVISION OF PUBLIC WELFARE STAFF MANUAL (EFFECTIVE MARCH
1970), PROVIDED IN PART: 

"EMPLOYMENT EXPENSES WHICH ARE DEDUCTED FROM THE GROSS AMOUNT
RECEIVED BY AN EMPLOYED RECIPIENT INCLUDE, BUT ARE NOT RESTRICTED TO:
"TRANSPORTATION EXPENSES:  "PUBLIC TRANSPORTATION TO AND FROM WORK IS
ALLOWED AT ACTUAL COST.  WHEN THE RECIPIENT MUST USE HIS OWN CAR AS
TRANSPORTATION TO AND FROM WORK, 5 CENTS A MILE IS ALLOWED, PLUS
PARKING FEES IF REQUIRED.  PURCHASE, REPAIR, OR UPKEEP OF A VEHICLE,
PROVIDING IT IS ESSENTIAL TO RETAIN EMPLOYMENT AND THE PLAN THEREFORE
IS APPROVED BY THE COUNTY DEPARTMENT." 

/2/  SECTION 4313.13, VOL. 4, COLORADO DIVIDION OF PUBLIC WELFARE
STAFF MANUAL (EFFECTIVE JULY 1970).  THE $30 STANDARDIZED FIGURE IS AN
AVERAGE BASED UPON A STATEWIDE STATISTICAL SURVEY OF WORK EXPENSES
INCURRED BY PERSONS IN THE AFDC PROGRAM IN COLORADO.  IT WAS CALCULATED
BY EXAMINING THE WORK EXPENSES OF EVERY AFDC RECIPIENT IN COLORADO FOR
THE LAST MONTH OF EACH QUARTER OF THE YEAR FORM MARCH 1969 TO MARCH
1970.  THE EXPENSES INCLUDED TRANSPORTATION, UNION DUES, UNIFROMS AND
TOOLS, TELEPHONE, AND GENERAL ITEMS, BUT EXCLUDED THE COST OF CHILD
CARE.  THE STATEWIDE AVERAGE VARIED FOR A A LOW OF $30.55 IN JUME 1969
TO A HIGH OF $36.93 IN MARCH 1970. 

/3/  ACCORDING TO HEW, 20 STATES, INCLUDING COLORADO, PRESENTLY
EMPLOY A STANDARD WORK-EXPENSE ALLOWANCE IN COMBINATION WITH ACTUAL
CHILD CARE EXPENSES, AND IN SOME CASES MANDATORY PAYROLL DEDUCTIONS,
AND AN ADDITIONAL 15 STATES USE OTHER SYSTEMS OF MANDATORY STANDARD
ALLOWANCES FOR ONE OR MORE MAJOR ITEMS OF WORK EXPENSE.  BRIEF FOR
UNITED STATES AS AMICUS CURIAE 5.  THESE STANDARD ALLOWANCES HAVE OFTEN
BEEN THE SUBJECT OF LITIGATION.  A NUMBER HAVE BEEN HELD INVALID.  SEE
ANDERSON V. GRAHAM, 492 F.2D 986 (CA8 1973) (NEBRASKA $25 STANDARD WORK
EXPENSE ALLOWANCE); CONNECTICUT STATE DEPT. OF PUB. WELFARE V. HEW, 448
F.2D 209 (CA2 1971) (CONNECTICUT REGULATION LIMITING THE TYPES OF
DEDUCTIBLE WORK-RELATED EXPENSES):9; ADAMS V. PARHAM, CIVIL ACTION NO.
16341 (ND GA. APR. 14, 1972) (UNPUBLISHED) (GEORGIA $35 STNADARD WORK
EXPENSE ALLOWANCE); CAMPAGNUOLO V. WHITE, CIVIL ACTION NO. 13968 (CONN.
JUNE 22, 1972) (UNPUBLISHED) (CONNECTICUT $60 STANDARD ALLOWANCE FOR
PART-TIME EMPLOYMENT EXPENSES AND $40 STANDARD ALLOWANCE FOR FULL-TIME
EMPLOYMENT EXPENSES AND $40 STANDARD ALLOWANCE OFR PART-TIME EMPLOYMENT
EXPENSES); WILLIFORD V. LAUPHEIMER, 311 F. SUPP. 720 (ED PA. 1969)
(PENNSYLVANIA $50 MAXIMUM ALLOWANCE FOR WORK EXPENSES); COUNTY OF
ALAMEDA V. CARLSON, 5 CAL. 3D 730, 488 P. 2D 953 (1971), APPEAL
DISMISSED, 406 U.S. 913 (1972) (CALIFORNIA WORK-EXPENSE REGULATION
PROVIDING FOR STANDARD DEDUCTIONS RANGING FROM $6 TO $25 PER MONTH). 
IN X V. MCCORKLE, 333 F. SUPP. 1109 (N. J. 1970), MODIFIED ON OTHER
GROUNDS, SUB NOM. ENGLEMAN V. AMOS, 404 U.S. 23 (1971), THE COURT
APPROVED IN DICTA NEW JERSEY'S $50 STANDARD WORK-EXPENSE ALLOWANCE.  IN
CONOVER V. HALL, 104 CAL. TPTR.  77 (1972), DECISION VACATED PENDING
APPEAL IN CALIFORNIA SUPREME COURT, THE COURT UPHELD CALIFORNIA'S $50
STANDARD ALLOWANCE. 

/4/  COLORADO DID NOT MAKE IT A STATEWIDE PRACTICE TO ALLOW AFDC
RECIPIENTS TO DEDUCT INSTALLMENT PAYMENTS ON THE PURCHASE OF A CAR. 
CONSISTENT WITH THE REASONABLENESS REQUIREMENT OF 42 U.S.C. 602 (A)(7),
SUCH DETERMINATIONS WERE, QUITE CORRECTLY, MAKE ON A CASE-BY-CASE
BASIS.  AS COUNSEL FOR THE STATE COMMENCTED AT ORAL ARGUMENT:  "THIS
WAS AN INDIVIDUAL DECISION IN AN INDIVIDUAL CASE IN EL PASO COUNTY,
COLORADO.  THE SAME FACTS COULD HAVE BEEN PRESENTED TO AN ELIGIBILITY
TECHNICIAN IN ANOTHER PART OF COLORADO, WHO WOULD HAVE MADE A DECISION
. . . THAT THE CAR WAS A PERSONAL EXPENSE, THAT A JOB WAS AVAILABLE
CLOSER TO THE HOME OF THE RECIPIENT OR THAT SHE COULD USE PUBLIC
TRANSPORTATION."  RE. OF ORAL ARG. 33 - 34.  RESPONDENT CORRECTLY
CONCEDES THE STATE'S RESPONSIBILITY FOR INQUIRING INTO WHETHER CLAIMED
DEDUCTIONS ARE EXCESSIVE OR ARE TRULY ATTRIBUTABLE TO THE EARNING OF
INCOME.  BRIEF FOR RESPONDENT 4.  NO DOUBT A STATE SHOULD SCRUTINIZE
WITH PARTICULAR CARE CLAIMED EXPENSES FOR AUTHOMOBILES OR OTHER ITEMS
THAT IN LARGE MEASURE ARE CAPITAL EXPENDITURES WHICH WILL ALSO BE USED
FOR PERSONL PURPOSE UNRELATED TO EMPLOYMENT.  RECOGNIZING THAT STATES
IN ADMINISTERING AFDC PROGRAMS MUST DETERMINE THE REASONABLENESS OF
WORK-RELATED EXPENSES DOES NOT, HOWEVER, RESOLVE THE ISSUE BEFORE US-
WHETHER STATES MAY BAN ALL SUCH EXPENSES, NO MATTER HOW REASONABLE AND
NECESSARY, ABOVE A FIXED CUTOFF FIGURE. 

/5/  ANOTHER EFFECT OF THE CHANGE IN THE STATE'S AFDC REGULATION WAS
TO TERMINATE RESPONDENT'S ELIGIBILITY FOR PARTICIPATION IN COLORADO'S
MEDICAL ASSISTANCE PROGRAM UNDER TITLE XIX OF THE SOCIAL SECURITY ACT,
42 U.S.C. 139A (A)(10). 

/6/  WHILE THE CASE WAS PENDING IN THE DISTRICT COURT, RESPONDENT
TERMINATED HER EMPLOYMENT AND AGAIN RECIEVED AN AFDC GRANT.  PRIOR TO
THE SUMMARY JUDGMENT HEARING, SHE RETURNED TO WORK, AGAIN INCURRING
WORK-RELATED EXPENSES SUBSTANTIALLY IN EXCESS OF THE $30 ALLOWANCE. 
ALTHOUGH RESPONDENT CONTINUED TO RECIEVE A GRANT DESPITE HER RENEWED
EMPLOYMENT, THE AMOUNT WAS SIGNIFICANTLY LOWER THAN IT WOULD HAVE BEEN
IF SHE HAS BEEN PERMITTED TO DEDUCT WORK EXPENSES IN FULL. 

/7/  THE AFDC PROGRAM WAS ORIGINALLY KNOWN AS "AID TO DEPENDENT
CHIRLDRE."  49 STAT. 627.  IN 1692, THE NA,E OF THE PROGRAM WAS CHANGED
TO "AID AND SERVICES TO NEEDY FAMILIES WITH CHILDREN,"  AND THE NAME OF
THE ASSISTANCE PROVIDED UNDER THE PROGRAM CHAGED TO "AID OF TAMILIES
WITH DEPENDENT CHILDREN."  PUB. L. 97 - 543, 76 STAT. 185, 104 (A)(1)
AND 104 (A)(2). 

/8/  SECTION 3140 OF THE HEW HANDBOOK OF PUBLIC ASSISTANCE
ADMINISTRATION, PART IV (1957), THUS PROVIDED IN PART: 

"A STATE PUBLIC ASSISTANCE AGENCY MAY ESTABLISH A REASONABLE MINIMUM
MONEY AMOUNT OT REPRESENT THE COMBINED ADDITIONAL COST OF THREE TIMES-
FOOD, CLOTHING, AND PERSONAL INCIDENTALS--FOR ALL EMPLOYED PERSONS. 
THE STATE PLAN MAY PROVIDE THAT OTHER ITEMS OF WORK EXPENSE WILL BE
ALLOWED WHEN THERE IS A DETERMINATION THAT SUCH EXPENSES DO, IN FACT,
EXIST IN THE INDIVIDUAL CASE."  SEE ALSO SOCIAL SECURITY BOARD, BUREAU
OR PUBLIC ASSISTANCE, STATE LETTER NO. 4 ( APR. 30, 1942); HEW, STATE
LETTER NO. 291 (MAR. 11, 1957) (INDICATING AGENCY APPROVAL OF SUCH
DEDUCTIONS).  L/9/  SEE GENERALLY 42 U.S.C. 601; H.R. DOC. NO. 81, 74TH
CONG., 1ST SESS. (1935); H.R. REP. NO. 615, 74TH CONG., 1ST SESS.
(1935); S. REP. NO. 628, 74TH CONG., 1ST SESS. (1935); E. WITTE, THE
DEVELOPMENT OF THE SOCIAL SECURITY ACT 163 - 164 (1962). 

/10/  TITLE 45 CFR 233.20 (A)(6) PROVIDES IN PART: 

"(IV) WITH REFERENCE TO COMMISSIONS, WAGES, OR SALARY, THE TERM
'EARNED INCOME' MEANS THE TOTAL AMOUNT, IRRESPCTIVE OF PERSONL
EXPENSES, SUCH AS INCOME-TAX DEDUCTIONS, LUNCHES, AND TRANSPORTATION TO
AND FROM WORK AND IRRESPECTIVE OF EXPENSES OF EMPLOYMENT WHICH ARE NOT
PERSONAL, SUCH AS THE COST OF TOOLE, MATERIALS, SPECIAL UNIFORMS, OR
TRANSPORTATION TO CALL ON CUSTOMERS. 

"(V) WITH RESPECT TO SELF-EMPLOYMENT, THE TERM 'EARNED INCOME'
MEANS THE TOTAL PROFIT FORM BUSINESS ENTERPRISE, FARNING, ETC.,
RESULTING FORM A COMPARISON OF THE GROSS INCOME RECEIVED WITH THE
'BUSINESS EXPENSES,' I.E., TOTAL COST OF THE PRODUCTION OF THE INCOME. 
PERSONAL EXPENSES, SUCH AS INCOME-TAX PAYMENTS, LUNCHES, AND
TRANSPORTATION TO AND FROM WORK, ARE NOT CLASSIFIED AS BUSINESS
EXPENSES. 

"(VI) THE DEFINITION SHALL EXCLUDE THE FOLLOWING FROM 'EARNED
INCOME': RETURNS FROM CAPITAL INVESTMENT WITH RESPECT TO WHICH THE
INDIVIDUAL IS NOT HIMSELF ACTIVELY ENGAGED, AS IN A BUSINESS (FOR
EXAMPLE, UNDER MOST CIRCUMSTANCES, DIVIDENDS AND INTEREST WOULD BE
EXCLUDED FROM 'EARNED INCOME'); BENEFITS (NOT IN THE NATURE OF WAGES,
SALARY, OR PROFIT) ACCRUING AS COMPENSATION, OR REQARD FOR SERVICE, OR
AS COMPENSATION FOR LACK OF EMPLOYMENT . . . . 

"(VII) WITH REGARD TO THE DEGREE OF ACTIVITY, EARNED INCOME IS
INCOME PRODUCED AS A RESULT OF THE PERFORMANCE OF SERVICE SBY A
RECIPIENT; IN OTHER WORDS, INCOME WHICH THE INDIVIDUAL EARNS BY HIS OWN
EFFORT, INCLUDING MANAGERIAL RESPONSIBILITIES, WOULD BE PROPERLY
CLASSIFIED AS EARNED INCOME, SUCH AS MANAGEMENT OF CAPITAL INVESTMENT
IN REAL ESTATE.  CONVERSELY, FOR EXAMPLE, IN THE INSTANCE OF CAPITAL
INVESTMENT WHEREIN THE INDIVIDUAL CARRIES NO SPECIFIC RESPONSIBILITY,
SUCH AS WHERE RENTAL PROPERTIES ARE IN THE HANDS OF RENAL AGENCIES AND
THE CHECK IS FORWARDED TO THE RECIPIENT, THE INCOME WOULD NOT BE
CLASSIFIED AS EARNED INCOME. 

"(VIII) RESERVES ACCUMLATED FROM EARINGS ARE GIVEN NO DIFFERENT
TREATMENT THAN RESERVES ACCUMLATED FROM ANY OTHER SOURCES." 

/11/ PETITIONERS CLAIM THAT HEW HAS PERMITTED THE USE OF STANDARD
WORK-EXPENSE ALLOWANCES IN RECOGNITION OF THE PRACTICAL NECESSITIES OF
ADMINISTRATION AND THAT DEPARTMENT'S CONSTRUCTION OF ITS OWN
REGULATIONS IS ENTITLED TO GREAT WEIGHT.  SEE RED LION BROADCASTING CO.
V. FCC, 395 U.S. 367 (1969); UDALL V. TALLMAN , 380 U.S.1 (1965).  BUT
THE SOUND PRINCIPLE OF ACCORDING DEFERENCE OT ADMINISTRATIVE PRACTICE
NORMALLY APPLIES ONLY WHERE THE RELEVANT STATUTORY LANGUAGE IN UNCLEAR
OR SUSCEPTIBLE OF DIFFERING INTERPRETATIONS.  SEE, E.G., TOWNSEND V.
SWANK, 404 U.S. 282, 286 (1971).  IN VIEW OF THE LITERAL REQUIREMENTS
OF 402 (A)(7), WHICH ACCORD WITH THE FEDERAL POLICY UNDERLYING ITS
ENACTMENT, WE NEED NOT LOOK TO AGENCY PRACTICE IN THIS CASE.  MOREOVER,
HEW ITSELF HAS NOT ADHEED TO A UNIFORM PRACTICE.  ALTHOUGH IN RECENT
YEARS HEW HAS CONSTRUED 402 (A)(7) TO PERMIT STANDARDIZATION OF SOME
ITEMS, IN 1964 IT REQUIRED TAHT "(ITEMS OF WORK EXPENSES MUST BE
ALLOWED WHEN THERE IS A DETERMINATION THAT SUCH EXPENSES DO, IN FACT,
IXIST IN THE INDIVIDUAL CASE."  HEW, HANDBOOK OF PUBLIC ASSISTANCE
ADMINISTRATION, PART IV, 1340 (1964). 

/12/  OUR INTERPRETATION OF 402 (A)(7) IS ALSO SUPPORTED BY THE
DISINCLINATION OF THE CONGRESS TO AMEND THE SECTION TO PERMIT THE USE
OF VARIOUS STANDARDIZED ALLOWANCES.  SEE H.R. 16311, 91ST CONG., 2D
SESS., 101 (1970); H.R. 1, 92ND CONG., 1ST SESS., 401 (1971).  IN
EXPLAINING THE LATTER BILL, WHICH WOULD HAVE REPLACED THE PRESENT WORK
EXPENSE PROVISION WITH AN INCREASE IN THE EARNED INCOME DISREGARD OF
402 (A)(8)(II), THE COMMITTEE ON WAYS AND MEANS OBSERVED THAT IT "WOULD
ELIMINATE THE OPEN-ENDED WORK EXPENSE EXCLUSION . . ."  H.R. REP. NO.
92 - 231, P. 177 (1971).  SEE ALSO S. 2311 AND H.R. 3153, 93RD CONG.,
1ST SESS. (1973). 

/13/  THE COURT'S OBSERVATION IN ROSADO V. WYMAN, 397 U.S. 397, 419
(1970), THAT "(WE DO NOT, OF COURSE, HOLD THAT NEW YORK MAY NOT,
CONSISTNETLY WITH THE FEDERAL STATUTES, CONDOLIDATE ITEMS ON THE BASIS
OF STATISTICAL AVERAGES . . .," WAS IN NO SENSE INTENDED AS A BLANKET
APPROVAL OF THE PRINCIPLE OF AVERAGING UNDER AFDC PROGRAMS WITHOUT
REGARD TO WHAT IS BEING AVERAGED.  IN THAT CASE, THE COURT FOUND A NEW
YORK STATUTE FIXING MAXIMUM AFDC ALLOWANCES PER FAMILY AND ELIMINATING
A "SPECIAL GRANTS" PROGRAM, TO BE IN CONTRAVENTION OF 402 (A)(23) OF
THE ACT.  IN HOLDING THAT NEW YORK COULD NOT COMPLETELY ELIMINATE SUCH
ITEMS FROM THE STANDARD OF NEED, THE COURT NOTED THAT THE STATE COULD,
CONSISTENTLY WITH THE STATUTE, INCLUDE THEM THROUGH THE USE OF
STATISTICAL AVERAGES.  A STATEWIDE STANDARD OF NEED IS, HOWEVER, BUT AN
ESTIMATE BY STATE WELFARE OFFICIALS OF THE MINIMUM FINANCIAL
REQUIREMENTS OF A HYPOTHETICAL FAMILY, AND BY ITS VERY NATURE IS
SUSCEPTIBLE OF COMPUTATION THROUGH THE USE OF STATISTICAL AVERAGES. 
MOREOVER, THE DISCRETION GRANTED THE STATES BY CONGRESS IN DETERMINING
NEED, SEE KING V. SMITH, 392 U.S. 309, 318 N. 14 (1968), CONTRASTS
SHARPLY WITH THE STATUTORY REQUIREMENT OF 402 (A)(7) THAT ANY EXPENSES
REASONABLY ATTRIBUTABLE TO THE EARNINGS OF INCOME BE CONSIDERED.  IN
THE FACE OF THAT STATUTORY COMMAND AND THE CLEAR STATEMENT OF
CONGRESSIONAL PURPOSE, WE MUST ALSO REJECT PEITIONERS' CLAIMS OF
ADMINISTRATIVE EFFICIENCY OR CONVENIENCE.  SEE ROSADO V. WYMAN, SUPRA,
AT 417. 

WE ALSO NOTE THAT COLORADO'S USE OF A STANDARD WORK-EXPENSE
ALLOWANCE IS NOT JUSTIFIED BY ITS UNDISPUTED POWER TO SET THE LEVEL OF
BENEFITS UNDER THE AFDC PROGRAM.  SEE ROSADO V. WYMAN, SUPRA; JEFFERSON
V. HACKNEY, 406 U.S. 535 (1972).  ALTHOUGH COLORADO MAY ADMUST THE
PERCENTAGE OF NEED WHICH IT HAS AGREED TO PAY ALL RECIPIENTS THROUGH IT
SPOWER TO DETERMINE AFDC FUNDING, SEE KING V. SMITH, SUPRA, IT MAY NOT
DO SO IN A MANNER THAT VIOLATES A SPECIFIC REQUIREMENT OF THE ACT.  SEE
CONNECTICUT STATE DEPT. OF PUB., WELFARE V. HEW, 448 F.2D 209 (CA2
1971). 
..END :



NLRB V. BELL AEROSPACE CO., 416 U.S. 267 


       NATIONAL LABOR RELATIONS BOARD V. BELL AEROSPACE COMPANY,

           DIVISION OF TEXTRON, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

      SECOND CIRCUIT

        NO. 72 - 1598.  ARGUED JANUARY 14, 1974--DECIDED APRIL 23,

           1974; 475 F.2D 485, AFFIRMED IN PART, REVERSED IN PART,

        AND REMANDED. 


    ON A PETITION BY A LABOR UNION FOR A REPRESENTATION ELECTION,

  NATIONAL LABOR RELATIONS BOARD (NLRB) HELD THAT THE BUYERS

  EMPLOYED BY RESPONDENT COMPANY CONSTITUTED AND APPROPRIATE

  COLLECTIVE-BARGAINING UNIT AND DIRECTED AN ELECTION.  THE NLBR

  STATED THAT EVEN THOUGH THE BUYERS MIGHT BE "MANAGERIAL

  EMPLOYEES"  THEY WERE NEVERTHELESS COVERED BY THE NATIONAL LABOR

  RELATIONS ACT (NLRA) IN THE ABSENCE OF ANY SHOWING THAT UNION

  ORGANIZATION OF THE BUYERS WOULD CREATE A CONFLICT OF INTEREST IN

  LABOR RELATIONS.  SUBSEQUENTLY THE BUYERS VOTED FOR THE UNION,

  AND TH NLBR CERTIFIED IT AS THEIR EXCLUSIVE BARGAINING

  REPRESENTATIVE.  THE COMPANY REFUSED TO BARGAIN, HOWEVER, AND WAS

  FOUND GUILTY OF AN UNFAIR LABOR PRACTICE AND ORDERED TO BARGAIN. 

  THE COURT OF APPEALS DENIED ENFORCEMENT ON THE GROUNDS THAT (1)

  IT WAS NOT CERTAIN THAT THE NLRB'S DECISION RESTED ON A FACTUAL

  DETERMINATION THAT THE BUYERS WERE NOT TRUE "MANAGERIAL

  EMPLOYEES"  RATHER THAN ON A NEW, AND IN THE COURT'S VIEW,

  ERRONEOUS HOLDING THAT THE NLRB WAS FREE TO REGARD ALL MANAGERIAL

  EMPLOYEES AS COVERED BY THE ACT UNLESS THEIR DUTIES MET THE

  CONFLICT-OF-INTEREST TOUCHSTONE, AND (2) IN VIEW OF ITS PREVIOUS

  CONTRARY DECISIONS, THE NLRB WAS REQUIRED TO PROCEED BY

  RULEMAKING RATHER THAN BY ADJUDICATION IN DETERMINING WHETHER

BUYERS ARE "MANAGERIAL EMPLOYEES."  HELD: 

     1.  CONGRESS INTENDED TO EXCLUDE FROM THE PROTECTIONS OF THE

  NLRA ALL EMPLOYEES PROPERLY CLASSIFIED AS "MANAGERIAL," NOT JUST

  THOSE IN POSITIONS SUSCEPTIBLE TO CONFLICTS OF INTEREST IN LABOR

  RELATIONS.  THIS IS UNMISTAKABLY INDICATED BY THE NLRB'S EARLY

  DECISIONS, THE PURPOSE AND LEGISLATIVE HISTORY OF THE

  TAFT-HARTLEY AMENDMENTS TO THE NLRB IN 1947, THE NLRB'S

  SUBSEQUENT CONSTRUCTION OF THE ACT FOR MORE THAN TOW DECADES, AND

  THE DECISIONS OF THE COURTS OF APPEALS.  PP. 274 - 290. 

     2.  THE NLRB IS NOT REQUIRED TO PROCEED BY RULEMAKING, RATHER

  THAN BY ADJUDICATION, IN DETERMINING WHETHER BUYERS OR SOME TYPES

  OF BUYERS ARE "MANAGERIAL EMPLOYEES."  PP. 290 - 295. 

     (A) THE NLRB IS NOT PRECLUDED FORM ANNOUNCING NEW PRINCIPLES
IN

  AN ADJUDICATIVE PROCEEDING, AND THE CHOICE BETWEEN RULEMAKING AND

  ADJUDICATION INITIALLY LIES WITHIN THE NLRB'S DISCRETION.  SEC V.

  CHENERY CORP., 332 U.S. 194; NLRB V. WYMAN-GORDON CO., 394 U.S.

  759.  P. 294. 

     (B) IN VIEW OF THE LARGE NUMBER OF BUYERS EMPLOYED IN

  MANUFACTURING, WHOLESALE, AND RETAIL UNITS, AND THE EIDE VARIETY

  OF BUYERS' DUTIES, DEPENDING ON THE COMPANY OR INDUSTRY, ANY

  GENERALIZED STANDARD WOULD HAVE NO MORE THAN MARGINAL UTILITY,

  AND THE NLRB THUS HAS REASON TO PROCEED WITH CAUTION AND DEVELOP

  ITS STANDARDS IN A CASE-BY-CASE MANNER WITH ATTENTION TO THE

  SPECIFIC CHARACTER OF THE BUYERS' AUTHORITY AND DUTIES IN EACH

  COMPANY.  P. 294. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND DOUGLAS, BLACKMUN, AND REHNQUIST, JJ., JOINED. 

WHITE, J., FILED AN OPINION DISSENTING IN PART, IN WHICH BRENNAN,

  STEWART, AND MARSHALL, JJ., JOINED, POST, P. 295. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS TWO QUESTIONS: FIRST, WHETHER THE NATIONAL LABOR
RELATIONS BOARD PROPERLY DETERMINED THAT ALL "MANAGERIAL EMPLOYEES,"
EXCEPT THOSE WHOSE PARTICIPATION IN A LABOR ORGANIZATION WOULD CREATE A
CONFLICT OF INTEREST WITH THIER JOB RESPONSIBILITIES, ARE COVERED BY
THE NATIONAL LABOR RELATIONS ACT; /1/  AND SECOND, WHETHER THE BOARD
MUST PROCEED BY RULEMAKING RATHER THAN BY ADJUDICATION IN DETERMINING
WHETHER CERTAIN BUYERS ARE "MANAGERIAL EMPLOYEES."  WE ANSWER BOTH
QUESTIONS IN THE NEGATIVE. 

        I 

RESPONDENT BELL AEROSPACE CO., DIVISION OF TEXTRON, INC., (COMPANY),
OPERATES A PLANT IN WHEATFIELD, NEW YORK, WHERE IT IS ENGAGED IN
RESEARCH AND DEVELOPMENT IN THE DESIGN AND FABRICATION OF AEROSPACE
PRODUCTS.  ON JULY 30, 1970, AMALGAMATED LOCAL NO. 1286 OF THE UNITED
AUTHOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA
(UNION) PETITIONED THE NATIONAL LABOR RELATIONS BOARD (BOARD) FOR A
REPRESENTATION ELECTION TO DETERMINE WHETHER THE UNION WOULD BE
CERTIFIED AS THE BARGAINING REPRESENTATIVE OF THE 25 BUYERS IN THE
PURCHASING AND PROCUREMENT DEPARTMENT AT THE COMPANY'S PLANT.  THE
COMPANY OPPOSED THE PETITION ON THE GROUND THAT THE BUYERS WERE
"MANAGERIAL EMPLOYEES" AND THUS WERE NOT COVERED BY THE ACT. 

THE RELEVANT FACTS ADDUCED AT THE REPRESENTATION HEARING ARE AS
FOLLOWS.  THE PURCHASING AND PROCUREMENT DEPARTMENT RECEIVES
REQUISITION ORDERS FROM OTHER DEPARTMENTS AT THE PLANT AND IS
RESPONSIBLE FOR PURCHASING ALL OF THE COMPANY'S NEEDS FROM OUTSIDE
SUPPLIERS.  SOME ITEMS ARE STANDARDIZED AND MAY BE PURCHASED "OFF THE
SHELF" FROM VARIOUS DISTRIBUTORS AND SUPPLIERS.  OTHER ITEMS MUST BE
MADE TO THE COMPANY'S SPECIFICATIONS, AND THE REQUISITION ORDERS MAY BE
ACCOMPANIED BY DETAILED BLUEPRINTS AND OTHER TECHNICAL PLANS. 
REQUISITIONS OFTEN DESIGNATE A PARTICULAR VENDOR, AND IN SOME INSTANCES
THE BUYER MUST OBTAIN APPROVAL BEFORE SELECTING A DIFFERENT ONE.  WHERE
NO VENDOR IS SPECIFIED, THE BUYER IS FREE TO CHOOSE ONE. 

ABSENT SPECIFIC INSTRUCTIONS TO THE CONTRARY, BUYERS HAVE FULL
DISCRETION, WITHOUT ANY DOLLAR LIMIT, TO SELECR PROSPECTIVE VENDORS,
DRAFT INVITATIONS TO BID, EVALUATE SUBMITTED BIDS, NEGOTIATE PRICE AND
TERMS, AND PREPARE PURCHASE ORDERS.  BUYERS EXECUTE ALL PURCHSE ORDERS
UP TO $50,000.  THEY MAY PLACE OR CANCEL ORDERS OF LESS THAN $5.000 ON
THEIR OWN SIGNATURE.  ON COMMITMENTS IN EXCESS OF $5,000 BUYERS MUST
OBTAIN THE APPROVAL OF A SUPERIOR, WITH HIGHER LEVELS OF APPROVAL
REQUIRED AS THE PURCHASE COST INCREASES.  FOR THE MINUTE MAN MISSILE
PROJECT, WHICH REPRESENTS 70% OF THE COMPANY'S SALES, PURCHASE
DECISIONS ARE MADE BY A TEAM OF PERSONNEL FORM PTHE ENGINEERING,
QUALITY ASSURANCE, FINANCE, AND MANUFACTURING DEPARTMENTS.  THE BUYER
SERVES AS TEAM CHAIRMAN AND SIGNS THE PURCHASE ORDER, BUT A
REPRESENTATIVE FROM THE PRICING AND NEGOTIATIONG DEPARTMENT
PARTICIPATES IN WORKING OUT THE TERMS. 

AFTER THE REPRESENTATION HEARING, THE REGIONAL DIRECTOR TRANSFERRED
THE CASE TO THE BOARD.  ON MAY 20, 1971, THE BOARD ISSUED ITS DECISION
HOLDING THAT THE COMPANY'S BUYERS CONSTITUTED AN APPROPRIATE UNIT FOR
PURPOSES OF COLLECTIVE BARGAINING AND DIRECTING AN ELECTION.  190
N.L.R.B. 431.  RELYING ON ITS RECENT DECISION IN NORTH ARKANSAS
ELECTRIC COOPERATIVE, INC., 185 N.L.R.B. 550 (1970), THE BOARD FIRST
STATED THAT EVEN THOUGH THE COMPANY'S BUYERS MIGHT BE "MANAGERIAL
EMPLOYEES,"  /2/  THEY WERE NEVERTHELESS COVERED BY THE ACT AND
ENTITLED TO ITS PROTECTIONS.  THE BOARD THEN REJECTED THE COMPANY'S
ALTERNATIVE CONTENTION THAT REPRESENTATION SHOULD BE DENIED BECAUSE THE
BUYERS' AUTHORITY TO COMMIT THE COMPANY'S CREDIT, SELECT VENDORS, AND
NEGOTIATE PURCHASE PRICES WOULD CREATE A POTENTIAL CONFLICT OF INTEREST
BETWEEN THE BUYERS AS UNION MEMBERS AND THE COMPANY.  IN ESSENCE, THE
COMPANY ARGUED THAT BUYERS WOULD BE MORE RECEPTIVE TO BIDS FROM UNION
CONTRACTORS AND WOULD ALSO INFLUENCE "MAKE OR BUY" DECISIONS IN FAVOR
OF "MAKE,"  THUS CREATING ADDITIONAL WORK FOR SISTER UNIONS IN THE
PLANT.  THE BOARD THOUGHT, HOWEVER, THAT ANY POSSIBLE CONFLICT WAS
"UNSUPPORTED CONJECTURE" SINCE THE BUYERS'  "DISCRETION AND LATTITUDE
FOR INDEPENDENT ACTION MUST TAKE PLACE WITHIN THE CONFINES OF THE
GENERAL DIRECTIONS WHICH THE EMPLOYER HAS ESTABLISHED" AND THAT "ANY
POSSIBLE TEMPTATION TO ALLOW SYMPATHY FOR SISTER UNIONS TO INFLUENCE
SUCH DECISIONS COULD EFFECTIVELY BE CONTROLLED BY THE EMPLOYER."  190
N.L.R.B., AT 431. 

ON JUNE 16, 1971, A REPRESENTATION ELECTION WAS CONDUCTED IN WHICH
15 OF THE BUYERS VOTED FOR THE UNION AND NINE AGAINST.  ON AUGUST 12,
THE BOARD CERTIFIED THE UNION AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR THE COMPANY'S BUYERS.  THAT SAME DAY, HOWEVER, THE
COURT OF APPEALS FOR THE EIGHTH CIRUIT DENIED ENFORCEMENT OF ANOTHER
BOARD ORDER IN NLRB V. NORTH ARKANSAS ELECTRIC COOPERATIVE, INC., 446
F.2D 602, AND HELD THAT "MANAGERIAL EMPLOYEES" WERE NOT COVERED BY THE
ACT AND WERE THEREFORE NOT ENTITLED TO ITS PROTECTIONS.  /3/  ID., AT
610. 

ENCOURAGED BY THE EIGHTH CIRUITS'S DECISION, THE COMPANY MOVED THE
BOARD FOR RECONSIDERATION OF ITS EARLIER ORDER.  THE BOARD DENIED THE
MOTION, 196 N.L.R.B. 827 (1972), STATING THAT IT DISAGREED WITH THE
EIGHTH CIRCUIT AND WOULD ADHERE TO ITS OWN DECISION IN NORTH ARKANSAS. 
IN THE BOARD'S VIEW, CONGRESS INTENDED TO EXCLUDE FORM THE ACT ONLY
THOSE "MANAGERIAL EMPLOYEES"  ASSOCIATED WITH THE "FORMULATION AND
IMPLEMENTATION OF LABOR RELATIONS POLICIES."  ID., AT 828.  IN EACH
CASE, THE "FUNDAMENTAL TOUCHSTONE" WAS "WHETHER THE DUTIES AND
RESPONSIBILITIES OF ANY MANAGERIAL EMPLOYEE OF GROUP OF MANAGERIAL
EMPLOYEES DO OR DO NOT INCLUDE DETERMINATIONS WHICH SHOULD BE MADE FREE
OF ANY CONFLICT OF INTEREST WHICH COULD ARISE IF THE PERSON INVOLVED
WAS A PARTICIPATING MEMBER OF A LABOR ORGANIZATION."  IBID.  TURNING TO
THE PRESENT CASE, THE BOARD REITERATED ITS PRIOR FINDING THAT THE
COMPANY HAD NOT SHOWN THAT UNION ORGANIZATION OF ITS BUYERS WOULD
CREATE A CONFLICT OF INTEREST IN LABOR RELATIONS. 

THE COMPANY STOOD BY ITS CONTENTION THAT THE BUYERS, AS "MANAGERIAL
EMPLOYEES," WERE NOT COVERED BY THE ACT AND REFUSED TO BARGAIN WITH THE
UNION.  AN UNFAIR LABOR PRACTICE COMPLAINT RESULTED IN A BOARD FINDING
THAT THE COMPANY HAD VILLATED 8 (A)(5) AND (1) OF THE ACT, 29 U.S.C.
158 (A)(5) AND (1), AND AN ORDER COMPELLING THE COMPANY TO BARGAIN WITH
THE UNION.  197 U.L.R.B. NO. 30 (1972).  SUBSEQUENTLY, THE COMPANY
PETITIONED THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
FOR REVIEW OF THE ORDER AND THE BOARD CROSS-PETITIONED FOR
ENFORCEMENT. 

THE COURT OF APPELS DENIED ENFORCEMENT.  475 F.2D 485 (1973).  AFTER
REVIEWING THE LEGISLATIVE HISTORY OF THE TAFT-HARTLEY ACT OF 1947, 61
STAT. 136, AND THE BOARD'S DECISIONS IN THIS AREA, THE COURT CONCLUDED
THAT CONGRESS HAD INTENDED TO EXCLUDE ALL TRUE "MANAGERIAL EMPLOYEES"
FROM THE PROTECTION OF THE ACT.  IT EXPLAINED THAT THIS "EXCLUSION
EMBRACED NOT ONLY AN EMPLOYEE 'SO CLOSELY RELATED TO OR ALIGNED WITH
MANAGEMENT AS TO PLACE THE EMPLOYEE IN A POSTITION OF CONFLICT OF
INTEREST BETWEEN HIS EMPLOYER ON THE ONE HAND AND HIS FILLOW WORKERS ON
THE OTHER' BUT ALSO ONE WHO IS 'FORMULATING, DETERMINING AND
EFFECTUATING HIS EMPLOYER'S POLICIES OR HAS DISRETION, INDEPENDENT OF
AN EMPLYER'S ESTABLISHED POLICY, IN THE PERFORMACE OF HIS DUTIES,'
ILLINOIS STATE JOURNAL-REGISTER, INC. V. NLRB, 412 F.2D 37, 41 (7 CIR.
1969)."  ID., AT 494.  THE COURT ADDED, HOWEVER, THAT "THE BOARD WOULD
(NOT) BE PRECLUDED, ON PROPER PROCEEDINGS, FORM DETERMINING THAT
BUYERS, OR SOME TYPES OF BUYERS, ARE NOT TRUE 'MANAGERIAL EMPLOYEES'
AND CONSEQUENTLY COME WITHIN THE PROTECTION OF 8 (A)(5) AND (1)." 
IBID. 

TURNING TO THE MERITS OF THE PRESENT CASE, THE COURT ACKOWLEDGED
THAT THERE WAS SUBSTANTIAL EVIDENCE THAT THE COMPANY'S BUYERS WERE NOT
SUFFICIENTLY HIGH IN THE MANAGERIAL HIERACHY TO CONSTITUTE TRUE
"MANAGERIAL EMPLOYEES."  NEVERTHELESS, THE COURT DENIED ENFORCEMENT FOR
TWO REASONS.  FIRST, IT WAS CERTAIN THAT THE BOARD'S DECISION RESTED ON
A FACTUAL DETERMINATION THAT THESE BUYERS WERE NOT TRUE "MANAGERIAL
EMPLOYEES"  RATHER THAN ON "ITS NEW, AND IN OUR VIEW, ERRONEOUS HOLDING
THAT IT WAS FREE TO REGARD ALL MANAGERIAL EMPLOYEES AS COVERED BY THE
ACT UNLESS THEIR DUTIES MET" THE CONFLICT-OF-INTEREST TOUCHSTONE.  ID.,
AT 494 - 495.  SECOND, ALTHOUGH THE BOARD WAS NOT PRECLUDED FORM
HOLDING THAT BUYERS, OR SOME TYPES OF BUYERS, WERE NOT "MANAGERIAL
EMPLOYEES," THE COURT THOUGHT THAT, IN VIEW OF THE BOARD'S LONG LINE OF
CASES HOLDING THE CONTRARY, IT COULD NOT ACCOMPLISH THIS CHANGE OF
POSITION BY ADMUDICATION.  RATHER, THE BOARD SHOULD CONDUCT A
RULEMAKING PROCEEDING IN CONFORMITY WITH 6 OF THE ACT, 29 U.S.C. 156. 
THE COURT THEREFORE REMANDED THE CASE TO THE BOARD FOR SUCH A
PROCEEDING. 

WE GRANTED THE BOARD'S PETITION FOR CERTIORARI.  414 U.S. 816. 

        II 

WE BEGIN WITH THE QUESTION WHETHER ALL "MANAGERIAL EMPLOYEES,"
RATHER THAN JUST THOSE IN POSITIONS SUSCEPTIBLE TO CONFLICTS OF
INTEREST IN LABOR RELATIONS, ARE EXCLUDED FROM THE PROTECTIONS OF THE
ACT.  /4/  THE BOARD'S EARLY DECISIONS, THE LEGISLATIVE HISTORY OF THE
TAFT-HARTLEY ACT OF 1947, 61 STAT. 136, AND SUBSEQUENT BOARD AND COURT
DECISIONS PROVIDE THE NECESSARY GUIDANCE FOR OUR INQUIRY.  IN EXAMINING
THESE AUTHORITIES, WE DRAW ON SEVERAL ESTABLISHE PRINCIPLES OF
STATUTORY CONSTRUCTION.  IN ADDITION TO THE IMPORTANCE OF LEGISLATIVE
HISTORY, A COURT MAY ACCORD GREAT WEIGHT TO THE LONGSTANDING
INTERPRETATION PLACED ON A STATUTE BY AN AGENCY CHARGED WITH ITS
ADMINISTRATION.  /5/  THIS IS ESPECIALLY SO WHERE CONGRESS HAS RE
ENACTED THE STATUTE WITHOUT PERTINENT CHANGE.  /6/  IN THESE
CIRCUMSTANCES, CONGRESSIONAL FAILURE TO REVISE OR REPEAL THE AGENCY'S
INTERPRETATION IS PERSUASIVE EVIDENCE THAT THE INTERPRETATION IS THE
ONE INTENDED BY CONGRESS.  /7/  WE HAVE ALSO RECOGNIZED THAT SUBSEQUENT
LEGISLATION DECLARING THE INTENT OF AN EARLIER STATUTE IS ENTITLED TO
SIGNIFICANT WEIGHT.  /8/  APPLICATION OF THESE PRINCIPLES LEADS US TO
CONCLUDE, AS DID THE COURT OF APPEALS, THAT CONGRESS INTENDED TO
EXCLUDE FROM THE PROTECTIONS OF THE ACT ALL EMPLOYEES PROPERLY
CLASSIFIED AS "MANAGERIAL." 

        A 

THE WAGNER ACT, 49 STAT. 449, DID NOT EXPRESSLY MENTION THE TERM
"MANAGERIAL EMPLOYEE."  AFTER THE ACT'S PASSAGE, HOWEVER, THE BOARD
DEVELOPED THE CONCEPT OF "MANAGERIAL EMPLOYEE" IN A SERIES OF CASES
INVOLVING THE APPROPRIATENESS OF BARGAINING UNITS.  THE FIRST CASES
ESTABLISHED THAT "MANAGERIAL EMPLOYEES" WERE NOT TO BE INCLUDED IN A
UNIT WITH RANK-AND-FILE EMPLOYEES.  IN FREIZ & SONS, 47 N.L.R.B. 43, 47
(1943), FOR EXAMPLE, THE BOARD EXCLUDED EXPEDITERS FROM A PROPOSED UNIT
OF PRODUCTION AND MAINTENANCE WORKERS BECAUSE THEY WERE "CLOSELY
RELATED TO THE MANAGEMENT."  SIMILARLY, IN SPICER MFG. CORP., 55
N.L.R.B. 1491, 1498 (1944), EXPEDITERS WERE AGAIN EXCLUDED FORM A UNIT
CONTAINING OFFICE, TECHNICAL, CLERICAL, AND PROFESSIONAL EMPLOYEES
BECAUSE "THE AUTHORITY POSSESSED BY (THE EXPEDITERS) TO EXERCISE THEIR
DESCRETION IN MAKING COMMITMENTS ON BEHALF OF THE COMPANY STAMPS THEM
AS MANAGERIAL."  THIS RATIONALE WAS SOON APPLIED TO BUYERS.  SEE, E.G.,
HUDSON MOTOR CAR CO., 55 N. L. R. B. 509, 512 (1944); VULCAN CORP., 58
N. L. R. B. 733, 736 (1944); BARRETT DIVISION, ALLIED CHEM & DYE CORP.,
65 N. L. R. B. 903, 905 (1946); ELECTRIC CONTROLLER & MFG. CO., 69 N.
L. R. B. 1242, 1245 - 1246 (1946).  THE BOARD SUMMARIZED ITS POLICY ON
"MANAGERIAL EMPLOYEES" IN FORD MOTOR CO., 66 N.L.R.B. 1317, 1322
(1946): 

"WE HAVE CUSTOMARILY EXCLUDED FORM BARGAINING UNITS OF RANK AND

  FILE WORKERS EXECUTIVE EMPLOYEES WHO ARE IN A POSITION TO

  FORMULATE, DETERMINE AND EFFECTUATE MANAGEMENT POLICIES.  THESE

  EMPLOYEES WE HAVE CONSIDERED AND STILL DEEM TO BE 'MANAGERIAL,'

  IN THAT THEY EXPRESS AND MAKE OPERATIVE THE DECISIONS OF

  MANAGEMENT." 

WHETHER THE BOARD REGARDED ALL "MANAGERIAL EMPLOYEES"  AS ENTIRELY
OUTSIDE THE PROTECTION OF THE ACT, AS WELL AS INAPPROPRIATE FOR
INCLUSION IN A RANK-AND-FILE BARGAINING UNIT, IS LESS CERTAIN.  TO BE
SURE, AT NO TIME DID THE BOARD CERTIFY EVEN A SEPARATE UNIT OF
"MANAGERIAL EMPLOYEES" OR STATE THAT SUCH WAS POSSIBLE.  THE BOARD WAS
CAUTIOUS, HOWEVER, IN DETERMINING WHICH EMPLOYEES WERE "MANAGERIAL." 
FOR EXAMPLE, IN DRAVO CORP., 54 N. L. R. B. 1174, 1177 (1944), THE
BOARD EXCLUDED BUYERS AND EXPEDITERS FROM A UNIT OF OFFICE AND CLERICAL
EMPLOYEES, BUT RESERVED THE QUESTION WHETHER ALL SUCH EMPLOYEES WERE TO
BE CONSIDERED "MANAGERIAL": 

"THIS IS NOT TO SAY, HOWEVER, THAT BUYERS AND EXPEDITERS ARE TO BE
DENIED THE RIGHT TO SELF-ORGANIZATION AND TO COLLECTIVE BARGAINING
UNDER THE ACT.  THE PRECISE RELATIONSHIP OF THE BUYERS AND EXPEDITERS
TO MANAGEMENT HERE IS NOT NOW BEING DETERMINED BY US." 

DURING THIS PERIOD THE BOARD'S POLICY WITH RESPECT TO THE RELATED
BUY NARROWER CATEGORY OF "SUPERVISORY EMPLOYEES"  MANIFESTED A
PROGRESSIVE UNCERTAINTY.  THE BOARD FIRST EXCLUDED SUPERVISORS FROM
UNITS OF RANK-AND-FILE EMPLOYEES, E.G., MUELLER BRASS CO., 39 N.L.R.B.
167, 171 (1942), BUT IN UNION COLLERIES COAL CO., 41 N.L.R.B. 961,
SUPPLEMENTAL DECISION, 44 N.L.R.B.  165 (1942), IT CERTIFIED A SEPARATE
UNIT COMPOSED OF SUPERVISORS WHO WERE TO BE REPRESENTED BY AN
INDEPENDENT UNION.  SHORTLY THEREAFTER, IN GODCHAUX SUGARS, INC., 44
N.L.R.B. 874 (1942), THE BOARD APPROVED A UNIT OF SUPERVISORS WHOSE
UNION WAS AFFILIATED WITH A UNION OF RANK-AND-FILE EMPLOYEES.  THIS
TREND WAS SOON HALTED, HOWEVER, BY MARYLAND DRYDOCK CO., 49 N.L.R.B.
733 (1943), WHERE THE BOARD HELD THAT SUPERVISORS, ALTHOUGH LITERALLY
"EMPLOYEES" UNDER THE ACT, COULD NOT BE ORGANIZED IN ANY UNIT.  AND IN
YALE & TOWNE MFG. CO., 60 N.L.R.B. 626, 628 - 629 (1945), THE BOARD
FURTHER HELD THAT TIME-STUDY MEN, WHOSE "'INTERESTS AND FUNCTIONS'"
WERE "'SUFFICIENTLY AKIN TO THOSE OF MANAGEMENT,'"  SHOULD NEITHER BE
INCLUDED IN A UNIT WITH OTHER EMPLOYEES, NOR BE ESTABLISHED AS A
SEPARATE UNIT."     MARYLAND DRYDOCK, SUPRA, WAS SUBSEQUENTLY OVERRULED
IN PACKARD MOTOR CAR CO., 61 N.L.R.B. 4, 64 N.L.R.B. 1212 (1945), WHERE
THE BOARD HELD THAT FOREMEN COULD CONSTITUTE AN APPROPRIATE UNIT FOR
COLLECTIVE BARGAINING.  THE BOARDS'S POSITION WAS UPHELD 5 - 4 BY THIS
COURT IN PACKARD CO. V. NLRB, 330 U.S. 485 (1947).  IN VIEW OF THE
SUBSEQUENT LEGISLATIVE REVERSAL OF THE PACKARD DECISION, THE DISSENTING
OPINION OF MR. JUSTICE DOUGLAS IS ESPECIALLY PERTINENT.  ID., AT 493. 
HE STATED: 

"THE PRESENT DECISION . . . TENDS TO OBLITERATE THE LINE BETWEEN
MANAGEMENT AND LABOR.  IT LENDS THE SANCTIONS OF FEDERAL LAW TO
UNIONIZATION AT ALL LEVELS OF THE INDUSTRIAL HIERARCHY.  IT TENDS TO
EMPHASIZE THAT THE BASIC OPPOSING FORCES IN INDUSTRY ARE NOT MANAGEMENT
AND LABOR BUT THE OPERATING GROUP ON THE ONE HAND AND THE STOCKHOLDER
AND BONDHOLDER GROUP ON THE OTHER.  THE INDUSTRIAL PROBLEM AS SO
DEFINED COMES DOWN TO A CONTEST OVER AF AIR DEVISION OF THE GROSS
RECIEPTS OF INDUSTRY BETWEEN THESE TWO GROUPS.  THE STRUGGLE FOR
CONTROL OR POWER BETWEEN MANAGEMENT AND LABOR BECOMES SECONDARY TO A
GROWING UNITY IN THEIR COMMON DEMANDS ON OWNERSHIP. 

     "I DO NOT BELIEVE THIS IS AN EXAGGERATED STATEMENT OF THE
BASIC

  POLICY QUESTIONS WHICH UNDERLIE THE PRESENT SECISION.  FOR IF

  FOREMEN ARE 'EMPLOYEES' WITHIN THE MEANING OF THE NATIONAL LABOR

  RELATIONS ACT, SO ARE VICE-PRESIDENTS, MANAGERS, ASSISTANT

  MANAGERS, SUPERINTENDENTS, ASSISTANT SUPERINTENDENTS--INDEED, ALL

  WHO ARE ON THE PAYROLL OF THE COMPANY, INCLUDING THE PRESIDENT;

  ALL WHO ARE COMMONLY REFERRED TO AS THE MANAGEMENT, WITH THE

 EXCEPTION OF THE DIRECTORS.  IF A UNION OF VICE-PRESIDENTS

  APPLIED FOR RECOGNITION AS A COLLECTIVE BARGAINING AGENCY, I DO

  NOT SEE HOW WE COULD DENY IT AND YET ALLOW THE PRESENT

  APPLICATION.  BUT ONCE VICE-PRESIDENTS, MANAGERS,

  SUPERINTENDENTS, FOREMENA ALL ARE UNIONIZED, MANAGEMENT AND LABOR

  WILL BECOME MORE OF A SOLID PHALANX THAN SEPARATE FACTIONS IN

  WARRING CAMPS. 

        . .         .         .         . 

"(IF CONGRESS, WHEN IT ENACTED THE NATIONAL LABOR RELATIONS ACT, HAD
IN MIND SUCH A BASIC CHANGE IN INFUDYTISL PHILOPOPHY, IT WOULD HAVE
LEFT SOME CLEAR AND UNMISTAKABLE TRACE OF THAT PURPOSE.  BUT I FIND
NONE."  ID., AT 494 - 495.  MR. JUSTICE DOUGLAS ALSO NOTED THAT THE
WAGNER ACT WAS INTENDED TO PROTECT "LABORERS" AND "WORKERS" WHOSE RIGHT
TO ORGANIZE AND BARGAIN COLLECTIVELY HAD NOT BEEN RECOGNIZED BY
INDUSTRY, RESULTING IN STRIKES, STRIFE, AND UNREST.  BY CONTRAST, THERE
WAS NO SIMILAR HISTORY WITH RESPECT TO FOREMEN, MANAGERS,
SUPERINTENDENTS, OR VICE PRESIDENTS.  ID., AT 496 - 497.  FURTHERMORE,
OTHER LEGISLATION INDICATED THAT WHERE CONGRESS DESIRED TO INCLUDE
MANAGERIAL OR SUPERVISORY PERSONNEL IN THE CATEGORY OF EMPLOYEES, IT
DID SO EXPRESSLY.  SEE, E.G., RAILWAY LABOR ACT OF 1926, 44 STAT. 577,
45 U.S.C. 151; MERCHANT MARINE ACT, 1936, AS AMENDED, 52 STAT. 953, 46
U.S.C.  1101 ET SEQ.; SOCIAL SECURITY ACT, 1101, 49 STAT. 647. 

        B 

THE PACKARD DECISION WAS A MAJOR FACTOR IN BRINGING ABOUT THE TAFT
HARTLEY ACT OF 1947, 61 STAT. 136.  THE HOUSE BILL, H.R. 3020, 80TH,
CONG., 1ST SESS. (1947), /9/  PROVIDED FOR THE EXCLUSION OF
"SUPERVISORS," A CATEGORY BROADLY DEFINED TO INCLUDE ANY INDIVIDUAL
WHOP HAS AUTHORITY TO HIRE, TRANSFER, PROMOTE, DISCHARGE, REWARD, OR
DISCIPLINE OTHER EMPLOYEES OR EFFECTIVELY TO RECOMMEND SUCH ACTION.  IT
ALSO EXCLUDED (I) THOSE WHO HAD AUTHORITY TO DETERMINE OR EFFECTIVELY
RECOMMEND THE AMOUNT OF WAGES EARNED BY OTHER EMPLOYEES; (II) THOSE
EMPLOYED IN LABOR RELATIONS, PERSONNEL, AND EMPLOYMENT DEPARTMENTS, AS
WELL AS POLICE AND TIME-STUDY PERSONNEL; AND (III) CONFIDENTIAL
EMPLOYEES.  THE SENATE VERSION OF THE BILL, S. 1126, 80TH CONG., 1ST
SESS. (1974), 

/10/  ALSO EXCLUDED SUPERVISORS, BUT DEFINED THAT CATEGORY MORE
NARROWLY THAN THE HOUSE VERSION, DISTINGUSHING BETWEEN "STRAW BOSSES,
LEADMEN, SET-UP MEN, AND OTHER MINOR SUPERVISORY EMPLOYEES, ON THE ONE
HAND, AND THE SUPERVISOR VESTED WITH SUCH GENUINE MANAGEMENT
PREROGRATIVES AS THE RIGHT TO HIRE OR FIRE, DISCIPLINE, OR MAKE
EFFECTIVE RECOMMENDATIONS WITH RESPECT TO SUCH ACTION."  S. REP. NO.
105, 80TH CONG., 1ST SESS., 4 (1947).  IT WAS THE SENATE'S VIEW THAT
EMPLOYEES SUCH AS "STRAW BOSSES," WHO HAD ONLY MINOR SUPERVISORY
DUTIES, SHOULD BE INCLUDED WITHIN THE ACT'S PROTECTIONS. 

SIGNIFICANTLY, BOTH THE HOUSE REPORT AND THE SENATE REPORT VOICED
CONCERN OVER THE BOARD'S BROAD READING OF THE TERM "EMPLOYEE" TO
INCLUDE THOSE CLEARLY WITHIN THE MANAGERIAL HIERARCHY.  FOCUSING ON MR.
JUSTICE DOUGLAS' DISSENT IN PACKARD, THE SENATE REPORT SPECIFICALLY
MENTIONED THAT EVEN VICE PRESIDENTS MIGHT BE UNIONIZED UNDER THE
BOARD'S DECISION.  IBID.  IT ALSO NOTED THAT UNIONIZATION OF
SUPERVISORS HAD HURT PRODUCTIVITY, INCREASED THE ACCIDENT RATE, UPSET
THE BALANCE OF POWER IN COLLECTIVE BARGAINING, AND TENDED TO BLUR THE
LINE BETWEEN MANAGEMENT AND LABOR.  ID., AT 4 - 5.  THE HOUSE REPORT
ECHOED THE CONCERN FOR REDUCTION OF INDUSTRIAL OUTPUT AND NOTED THAT
UNIONIZATION OF SUPERVISORS HAD DEPRIVED EMPLOYERS OF THE LOYAL
REPRESENTATIONS TO WHICH THEY WERE ENTITLED.  /11/  AND IN CRITICIZING
THE BOARD'S EXPANSICE READING OF THE ACT'S DEFINITION OF THE TERM
"EMPLOYEES," THE HOUSE REPORT NOTED THAT "(WHEN CONGRESS PASSED THE
LABOR ACT, WE WERE CONCERNED, AS WE SAID IN ITS PREAMBLE, WITH THE
WELFARE OF 'WORKERS' AND 'WAGE EARNERS,' NOT OF THE BOSS."  H.R. REP.
NO. 245, 80TH CONG., 1ST SESS., 13 (1947). 

THE CONFERENCE COMMITTEE ADOPTED THE SENATE VERSION OF THE BILL. 
H.R. CONF. REP. NO. 510, 80TH CONG., !ST SESS., 35 (1947).  THE
CONFERENCE COMMITTEE REPORT EXPLAINED: 

     "THE CONFERENCE AGREEMENT, IN THE DEFINITION OF 'SUPERVISOR,'

  LIMITS SUCH TERM TO THOSE INDIVIDUALS TREATED AS SUPERVISORS

  UNDER THE SENATE AMENDMENT.  IN THE CASE OF PERSONS WORKING IN

  LABOR RELATIONS, PERSONNEL AND EMPLOYMENT DEPARTMENTS, IT WAS NOT

  THOUGHT NECESSARY TO MAKE SPECIFIC PROVISION, AS WAS DONE IN THE

  HOUSE BILL, SINCE THE BOARD HAS TREATED, AND PRESUMABLY WILL

 CONTINUE TO TREAT, SUCH PERSONS AS OUTSIDE THE SCOPE OF THE ACT. 

  THIS IS THE PREVIALING BOARD PRACTICE WITH RESPECT TO SUCH PEOPLE

  AS CONFIDENTIAL SECRETARIES AS WELL, AND IT WAS NOT THE INTENTION

  OF THE CONFEREES TO ALTER THIS PRACTICE IN ANY RESPECT.  THE

  CONFERENCE AGREEMENT DOES NOT TREAT TIME-STUDY PERSONNEL OR

  GUARDS AS SUPERVISORS, AS DID THE HOUSE BILL.  SINCE, HOWEVER,

  TIME-STUDY EMPLOYEES MAY QUALIFY AS PROFESSIONAL PERSONNEL, THE

  SPECIAL PROCISIONS OF THE SENATE AMENDMENT . . . APPLICABLE WITH

 RESPECT TO PROFESSIONAL EMPLOYEES WILL COVER MANY OF THIS

  ACTEGORY.  IN THE CASE OF GUARDS, THE CONFERENCE AGREEMENT DOES

  NOT PERMIT THE CERTIFICATION OF LABOR ORGANIZATION AS THE

  BARGAINING REPRESENTATIVE OF GUARDS IF IT ADMITS TO MEMBERSHIP,

  OR IS AFFILIATED WITH ANY ORGANIZATION THAT ADMITS TO MEMBERSHIP,

  EMPLOYEES OTHER THAN GUARDS."  ID., AT 35 - 36. 

THE LEGISLATIVE HISTORY OF THE TAFT-HARTLEY ACT OF 1947 MAY BE
SUMMARIZED AS FOLLOWS.  THE HOUSE WANTED TO INCLUDE CERTAIN PERSSONS
WITHIN THE DEFINITION OF "SUPERVISORS,"  SUCH AS STRAW BOSSES, WHOM THE
SENATE BELIEVED SHOULD BE PROTECTED BY THE ACT.  AS TO THESE PERSONS,
THE SENATE'S VIEW PREVAILED.  THERE WERE OTHER PERSONS, HOWEVER, WHO
BOTH THE HOUSE AND THE SENATE BELIEVED WERE PLAINLY OUTSIDE THE ACT. 
THE HOUSE WANTED TO MAKE THE EXCLUSION OF CERTAIN OF THESE PERSONS
EXPLICIT.  IN THE CONFERENCE AGREEMENT, REPRESENTATIVES FROM BOTH THE
HOUSE AND THE SENATE AGREED THAT A SPECIFIC PROVISION WAS UNNECESSARY
SINCE THE BOARD HAD LONG REGARDED SUCH PERSONS AS OUTSIDE THE ACT. 
AMONG THOSE MENTIONED AS IMPLIEDLY EXCLUDED WERE PERSONS WORKING IN
"LABOR RELATIONS, PERSONNEL AND EMPLOYMENT DEPARTMENTS,"  AND
"CONFIDENTIAL EMPLOYEES."  BUT ASSUREDLY THIS DID NOT EXHAUSE THE
UNIVERSE OF SUCH EXCLUDED PERSONS.  THE LEGISLATIVE HISTORY STRONGLY
SUGGESTS THAT THERE ALSO WERE OTHER EMPLOYEES, MUCH HIGHER IN THE
MANAGERIAL STRUCTURE, WHO WERE LIKEWISE REGARDED AS SO CLEARLY OUTSIDE
THE ACT THAT NO SPECIFIC EXCLSIONARY PROVISION WAS THOUGHT NECESSARY. 
FOR EXAMPLE, IN ITS DISCUSSION OF CONFIDENTIAL EMPLOYEES, THE HOUSE
REPORT NOTED THAT "(MOST OF THE PEOPLE WHO WOULD QUALIFY AS
'CONFIDENTIAL' EMPLOYEES ARE EXECUTIVES AND ARE EXCLUDED FROM THE ACT
IN ANY EVENT."  H.R. REP. NO. 245, P. 23 (EMPHASIS ADDED).  /12/ WE
THINK THE INFERENCE IS PLAIN THAT "MANAGERIAL EMPLOYEES" WERE PARAMOUNT
AMONG THIS IMPLIEDLY EXCLUDED GROUP.  THE COURT OF APPEALS IN THE
INSTANT CASE PUT THE ISSUE WELL: 

"CONGRESS RECOGNIZED THERE WERE OTHER PERSONS SO MUCH MORE CLEARLY
'MANAGERIAL' THAT IT WAS INCONCEIVABLE THAT THE BOARD WOULD TREAT THEM
AS EMPLOYEES.  SURELY CONGRESS COULD NOT HAVE SUPPOSED THAT, WHILE
'CONFIDENTIAL SECRETARIES' COULD NOT BE ORGANIZED, THEIR BOSSES COULD
BE.  IN OTHER WORDS, CONGRESS FAILED TO ENACT THE PORTION OF MR.
JUSTICE DOUGLAS' PACKARD DISSENT RELATING TO THE ORGANIZATION OF
EXECUTIVES, NOT BECAUSE IT DISAGREED BUT BECAUSE IT DEEMED THIS
UNNECESSARY."  475 F.2D, AT 491 - 492.  /13/  (FOOTNOTE OMITTED.) 

        C 

FOLLOWING THE PASSAGE OF THE TAFT-HARTLEY ACT, THE BOARD ITSELF
ADHERED TO THE VIEW THAT "MANAGERIAL EMPLOYEES"  WERE OUTSIDE THE ACT. 
IN DENVER DRY GOODS, 74 N.L.R.B. 1167, 1175 (1947), ASSISTANT BUYERS,
WHO WERE REQUIRED TO SET GOOD SALES RECORDS AS EXAMPLES TO SALES
EMPLOYEES, TO ASSIST BUYERS IN THE SELECTION OF MERCHANDISE, AND TO
ASSUME THE BUYER'S DUTIES WHEN THE LATTER WAS NOT PRESENT, WERE
EXCLUDED BY THE BOARD ON THE GROUND THAT "THE INTERESTS OF THESE
EMPLOYEES ARE MORE CLOSELY IDENTIFIED WITH THOSE OF MANAGEMENT."  THE
BOARD REITERATED THIS READING OF THE ACT IN PALACE LAUNDRY DRY
CLEANING, 75 N.L.R.B. 320, 323 N. 4 (1947): 

  "THE DETERMINATION OF "MANAGERIAL,' LIKE THE DETERMINATION OF

  'SUPERVISORY,' IS TO SOME EXTENT NECESSARILY A MATTER OF THE

  DEGREE OF AUTHORITY EXERCISED.  WE HAVE IN THE PAST, AND BEFORE

  THE PASSAGE OF THE RECENT AMENDMENTS TO THE ACT, RECOGNIZED AND

  DEFINED AS 'MANAGERIAL' EMPLOYEES, EXECUTIVES WHO FORMULATE AND

  EFFECTUATE MANAGEMENT POLICIES BY EXPRESSING AND MAKING OPERATIVE

  DECISIONS OF THEIR EMPLOYER, AND HAVE EXCLUDED SUCH MANAGERIAL

  EMPLOYEES FROM BARGAINING UNITS.  WE BELIEVE THAT THE ACT, AS

AMENDED, CONTEMPLATES THE CONTINUANCE OF THIS PRACTICE." 

(CITATIONS OMITTED.) 

BUYERS AND ASSISTANT BUYERS WERE AGAIN EXCLUDED IN DENTON'S, INC., 83
N.L.R.B. 35, 37 (1949), BECUASE THEIR "INTERSTS . . . ARE MORE CLOSELY
IDENTIFIED WITH MANAGEMENT . . . ."  AND IN AMERICAN LOCOMOTIVE CO., 92
N.L.R.B. 115, 116 - 117 (1950), THE BOARD HELD THAT BUYERS COULD
NEITHER BE INCLUDED IN A UNIT OF OFFICE AND CLERICAL EMPLOYEES NOR
PLACED IN A SEPARATE UNIT, STATING: 

"THE EMPLOYER MAINTAINS THAT THE BUYERS ARE REPRESENTATIVES OF
MANAGEMENT.  AS IT APPEARRS THAT THE BUYERS ARE AUTHORIZED TO MAKE
SUSTANTIAL PURCHASES FOR THE EMPLOYER, WE FIND THAT THEY ARE
REPRESENTATIVES OF MANAGEMENT, AND AS SUCH MAY NOT BE ACCORDED
BARGAINING RIGHTS UNDER THE ACT."  BUYERS, WHO WERE AUTHORIZED TO BIND
THE EMPLOYER WITHOUT PRIOR APPROVAL, WERE ALSO EXCLUDED FROM A UNIT IN
CURTISS-WRIGHT CORP., 103 N.L.R.B. 458, 464 (1953), BECAUSE "THEY ARE
REPRESENTATIVES OF MANAGEMENT AND AS SUCH MAY NOT BE ACCORDED
BARGAINING RIGHTS UNDER THE ACT." 

FINALLY, IN SWIFT & CO., 115 N.L.R.B. 752, 753 - 754 (1956), THE
BOARD REAFFIRMED ITS LONG-HELD UNDERSTANDING OF THE SCOPE OF THE ACT. 
IN REFUSING TO APPROVE A UNIT OF PROCUREMENT DRIVERS WHO WERE FOUND TO
BE REPRESENTATIVE OF MANAGEMENT, THE BOARD DECLARED: 

"IT WAS THE CLEAR INTENT OF CONGESS TO EXCLUDE FROM THE COVERAGE OF
THE ACT ALL INDIVIDUALS ALLIED WITH MANAGEMENT.  SUCH INDIVIDUALS
CONNOT BE DEEMED TO BE EMPLOYEES FOR THE PURPOSES OF THE ACT. 
ACCORDINGLY, WE REAFFIRM THE BOARD'S POSITION THAT REPRESENTATIVES OF
MANAGEMENT MAY NOT BE ACCORDED BARGINING RIGHTS UNDER THE ACT . . . ." 
(FOOTNOTES OMITTED.)  UNTIL ITS DECISION IN NORTH ARKANSAS IN 1970, THE
BOARD CONSISTENTLY FOLLOWED THIS READING OF THE ACT.  /14/  IT NEVER
CERTIFIED ANY UNIT OF "MANGERIAL EMPLOYEES," SEPARATE OR OTHERWISE, AND
REPEATEDLY STATED THAT IT WAS CONGRESS'  INTENT THAT SUCH EMPLOYEES NOT
BE ACCORDED BARGAINING RIGHTS UNDER THE ACT.  AND IT WAS THIS READING
WHICH WAS PERMITTED TO STAND WHEN CONGRESS AGAIN AMENDED THE ACT IN
1959.  73 STAT. 519. 

THE BOARD'S EXCLUSION OF "MANAGERIAL EMPLOYEES"  DEFINED AS THOSE
WHO "FORMULATE AND EFFECTUATE MANAGEMENT POLICIES BY EXPRESSING AND
MAKING OPERATICE THE DECISIONS OF THEIR EMPLOYER,"  /15/  HAS ALSO BEEN
APPROVED BY COURT WITHOUT EXCEPTION.  SEE, E.G., WESTINGHOUSE ELECTRIC
CORP. V. NLRB, 424 F.2D 1151, 1158 (CA7), CERT. DENIED, 400 U.S. 831
(1970); ILLINOIS STATE JOURNAL-REGISTER, INC. V. NLRB, 412 F.2D 37, 41
(CA7 1969); CONTINENTAL INSURANCE CO. V. NLRB, 409 F.2D 727, 730 (CA2),
CERT. DENIED, 396 U.S. 902 (1969); RETAIL CLERKS INTERNATIONAL ASSN. V.
NLRB, 125 U.S. APP. D.C. 63, 65 - 66, 366 F.2D 642, 644 645 (1966)
(BURGER, J.), CERT. DENIED, 386 U.S. 1017 (1967); /16/  INTERNATIONAL
LADIES'  GARMENT WORKERS' UNION V. NLRB, 339 F.2D 116, 123 (CA2 1964)
(MARSHALL, J.).  /17/  AND IN NLRB V. NORTH ARKANSAS ELECTRIC
COOPERATIVE, INC., 446 F.2D 602 (1971), THE EIGHTH CIRCUIT REVIEWED THE
HISTORY OF THE ACT AND SPECIFICALLY DISAPPROVED THE BOARD'S DEPARTURE
FROM ITS EARLIER POSITION.              D 

IN SUM, THE BOARD'S EARLY DECISIONS, THE PURPOSE AND LEGISLATIVE
HISTORY OF THE TAFT-HARTLEY ACT OF 1947, THE BOARD'S SUBSEQUENT AND
CONSISTENT CONSTRUCTION OF THE ACT FOR MORE THAN TOW DECADES,A ND THE
DECISIONS OF THE COURTS OF APPEALS ALL POINT UNMISTAKABLY TO THE
CONCLUSION THAT "MANAGERIAL EMPLOYEES" ARE NOT COVERED BY THE ACT. 
/18/  WE AGREE WITH THE COURT OF APPEALS BELOW THAT THE BOARD "IS NOT
NOW FREE" TO READ A NEW AND MORE RESTRICTIVE MEANING INTO THE ACT.  475
F.2D, AT 494. 

IN VIEW OF OUR CONCLUSION, THE CASE MUST BE REMANDED TO PERMIT THE
BOARD TO APPLY THE PROPER LEGAL STANDARD IN DETERMINING THE STATUS OF
THES BUYERS.  /19/  SEC. V. CHENERY CORP., 318 U.S. 80, 85 (1943); FTC
V. SPERRY & HUTCHINSON CO., 405 U.S. 233, 249 (1972).  WE EXPRESS NO
OPINION AS TO WHETHER THESE BUYERS FALL WITHIN THE CATEGORY OF
"MANAGERIAL EMPLOYEES."  /20/

        III 

THE COURT OF APPEALS ALSO HELD THAT, ALTHOUGH THE BOARD WAS NOT
PRECLUDED FORM DETERMINING THAT BUYERS OR SOME TYPES OF BUYERS WERE NOT
"MANAGERIAL EMPLOYEES,"  IT COULD DO SO ONLY BY INVOKING ITS RULEMAKING
PROCEDURES UNDER 6 OF THE ACT, 29 U.S.C. 156.  /21/  WE DISAGREE. 

AT THE OUTSET, THE PRECISE NATURE OF THE PRESENT ISSUE MUST BE
NOTED.  THE QUESTION IS NOT WHETHER THE BOARD SHOULD HAVE RESORTED TO
RULEMAKING, OR IN FACT IMPROPERLY PROMULGATED A "RULE," WHEN IN THE
CONTEXT OF THE PRIOR REPRESENTATION PROCEEDING IT HEL THAT THE ACT
COVERS ALL "MANAGERIAL EMPLOYEES" EXCEPT THOSE MEETING THE NEW
"CONFLICT OF INTERST IN LABOR RELATIONS" TOUCHSTONE.  OUR CONCLUSION
THAT THE BOARD APPLIED THE WRONG LEGAL STANDARD MAKES CONSIDERATION OF
THAT ISSUE UNNECESSARY.  RATHER, THE PRESENT QUESTION IS WHETHER ON
REMAND THE BOARD MUST INVOKE ITS RULEMAKING PROCEDURES IF IT
DETERMINES, IN LIGHT OF OUR OPINION, THAT THESE BUYERS ARE NOT
"MANAGERIAL EMPLOYEES" UNDER THE ACT.  THE COURT OF APPEALS THOUGHT
THAT RULEMAKING WAS REQUIRED BECAUSE ANY BOARD FINDING THAT THE
COMPANY'S BUYERS ARE NOT "MANAGERIAL" WOULD BE CONTRARY TO ITS PRIOR
DECISIONS /22/  AND WOULD PRESUMABLY BE IN THE NATURE OF A GENERAL RULE
DESIGNED "TO FIT ALL CASES AT ALL TIMES." 

A SIMILAR ISSUE WAS PRESENTED TO THIS COURT IN ITS SECOND DECISION
IN SEC V. CHENERY COP., 332 U.S. 194 (1947) (CHENERY II).  /23/  THERE,
THE RESPONDENT CORPOSATION ARGUED THAT IN AN ADJUDICATIVE PROCEEDING
THE COMMISSION COULD NOT APPLY A GENERAL STANDARD THAT IT HAD
FORMULATED FOR THE FIRST TIME IN THAT PROCEEDING.  RATHER, THE
COMMISSION WAS REQUIRED TO RESORT INSTEAD TO ITS RULEMAKING PROCEDURES
IF IT DESIRED TO PROMULGATE A NEW STANDARD THAT WOULD GOVERN FUTURE
CONDUCT.  IN REJECTING THIS CONTENTION, THE COURT FIRST NOTED THAT THE
COMMISSION HAD A STATUTORY DUTY TO DECIDE THE ISSUE AT HAND IN LIGHT OF
THE PROPER STANDARDS AND THAT THIS DUTY REMAINED "RETGRDLESS OF WHETHER
THOSE STANDARDS PREVIOUSLY HAD BEEN SPELLED OUT IN A GENERAL RULE OR
REGULATION."  ID., AT 201.  THE COURT CONTINUED: 

"THE FUNCTION OF FILLING IN THE INTERSTICES OF THE (SECURITIES) ACT
SHOULD BE PERFORMED, AS MUCH AS POSSIBLE, THROUGH THIS QUASI
LEGISLATIVE PROMULGATION OF RULES TO BE APPLIED IN THE FUTURE.  BUT ANY
RIGID REQUIREMENT TO THAT EFFECT WOULD MAKE THE ADMINISTRATIVE PROCESS
INFLEXIBLE AND INCAPABLE OF DEALING WITH MANY OF THE SPECIALIZED
PROBLEMS WHICH ARISE . . . . NOT EVERY PRINCIPLE ESSENTIAL TO THE
EFFECTIVE ADMINISTRATION OF A STATUTE CAN OR SHOULD BE CAST IMMEDIATELY
INTO THE MOLD OF A GENERAL RULE.  SOME PRINCIPLES MUST AWAIT THIER OWN
DEVELOPMENT, WHILE OTHERS MUST BE ADJUSTED TO MEET PARTICULAR,
UNFORSEEABLE SITUATIONS.  IN PERORMING ITS IMPOSTANT FUNCTIONS IN THESE
RESPECTS, THEREFORE, AN ADMINISTRATIVE AGENCY MUST BE EQUIPPED TO ACT
EITHER BY GENERAL RULE OR BY INDIVIDUAL ORDER.  TO INSIST UPON ONE FORM
OF ACTION TO THE EXCLUSION OF THE OTHER IS TO EXALT FORM OVER
NECESSITY. 

     "IN OTHER WORDS, PROBLEMS MAY ARISE IN A CASE WHICH THE

  ADMINISTRATIVE AGENCY COULD NOT REASONABLY FORSEE, PROBLEMS WHICH

  MUST BE SOLVED DESPITE THE ABSENCE OF A RELEVANT GENERAL RULE. 

  OR THE AGENCY MAY NOT HAVE HAD SUFFICIENT EXPERIENCE WITH A

PARTICULAR PROBLEM TO WARRANT REGIDIFYING ITS TENTATIVE JUDGMENT

  INTO A HARD AND FAST RULE.  OR THE PROBLEM MAY BE SO SPECIALIZED

  AND VARYING IN NATURE AS TO BE IMPOSSIBLE OF CAPTURE WITHIN THE

  BOUNDARIES OF A GENERAL RULE.  IN THOSE SITUATIONS, THE AGENCY

  MUST RETAIN POWER OT DEAL WITH THE PROBLEMS ON A CASE-TO-CASE

  BASIS IF THE ADMINISTRATIVE PROCESS IS TO BE EFFECTIVE.  THERE IS

  THUS A VERY DEFINITE PLACE FOR THE CASE-BY-CASE EVOLUTION OF

  STATUTORY STANDARDS."  ID., AT 202 - 203.  (EMPHASIS ADDED.) 

THE COURT CONCLUDED THAT "THE CHOICE MADE BETWEEN PROCEEDING BY GENERAL
RULE OR BY INDIVIDUAL, AD HOC LITIGATION IS ONE THAT LIES PROMARILY IN
THE INFORMED DISCRETION OF THE ADMINISTRATIVE AGENCY."  ID., AT 203. 

AND IN NLRB V. WYMAN-GORDON CO., 394 U.S. 759 (1969), THE COURT
UPHELD A BOARD ORDER ENFORCING AN ELECTION LIST REQUIREMENT FIRST
PROMULGATED IN AN EARLIER ADJUDICATIVE PROCEEDING IN EXCELSIOR
UNDERWEAR INC., 156 N.L.R.B. 1236 (1966).  THE PLURALITY OPINION OF MR.
JUSTICE FORTAS, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE STEWART, AND
MR. JUSTICE WHITE, RECOGNIZED THAT "(ADJUDICATED CASES MAY AND DO . . .
SERVE AS VEHICLES FOR THE FORMULATION OF AGENCY POLICIES, WHICH ARE
APPLIED AND ANNOUNCED THEREIN," AND THAT SUCH CASES "GENERALLY PROVIDE
A GUIDE TO ACTION THAT THE AGENCY MAY BE EXPECTED TO TAKE IN FUTURE
CASES."  NLRB V. WYMAN-GORDON CO., SUPRA, AT 765 - 766.  THE CONCURRING
OPINION OF MR. JUSTICE BLACK, JOINED BY MR. JUSTICE BRENNAN AND MR.
JUSTICE MARSHALL, ALSO NOTED THAT THE BOARD HAD BOTH ADJUDICATIVE AND
RULEMAKING POWERS AND THAT THE CHOICE BETWEEN THE TWO WAS "WITHIN ITS
INFORMED DISCRETION."  ID., AT 772. 

THE VEIWS EXPRESSED IN CHENERY II AND WYMAN-GORDON MAKE PLAIN THAT
THE BOARD IS NOT PRECLUDED FROM ANNOUNCING NEW PRINCIPLES IN AN
ADJUDICATIVE PROCEEDING AND THAT THE CHOICE BETWEEN RULEMAKING AND
ADJUDICATION LIES IN THE FIRST INSTANCE WITHIN THE BOARD'S DISCRETION. 
ALTHOUGH THERE MAY BE SITUATIONS WHERE THE BOARD'S RELIANCE ON
ADJUDICATION WOULD AMOUNT TO AN ABUSE OF DISCRETION OR A VIOLATION OF
THE ACT, NOTHING IN THE PRESENT CASE WOULD JUSTIFY SUCH A CONCLUSION. 
INDEED, THERE IS AMPLE INDICATION THAT ADJUDICATION IS ESPECIALLY
APPROPRIATE IN THE INSTANT CONTEXT.  AS THE COURT OF APPEALS NOTED,
"(THERE MUST BE TENS OF THOUSANDS OF MANUFACTURING, WHOLESALE AND
RETAIL UNITS WHICH EMPLOY BUYERS, AND HUNDREDS OF THOUSANDS OF THE
LATTER."  475 F.2D, AT 496.  MOREOVER, DUTIES OF BUYERS VARY WIDELY
DEPENDING ON THE COMPANY OR INDUSTRY.  IT IS DOUBTFUL WHETHER ANY
GENERALIZED STANDARD COULD BE FRAMED WHICH WOULD HAVE MORE THAN
MARGINAL UTILITY.  THE BOARD THUS HAS REASON TO PROCEED WITH CAUTION,
DEVELOPING ITS STANDARDS IN A CASE-BY-CASE MANNER WITH ATTENTION TO THE
SPECIFIC CHARACTER OF THE BUYERS' AUTHORITY AND DUTIES IN EACH
COMPANY.  THE BOARD'S JUDGMENT THAT ADJUDICATION BEST SERVES THIS
PURPOSE IS ENTITLED TO GREAT WEIGHT. 

THE POSSIBLE RELIANCE OF INDUSTRY ON THE BOARD'S PAST DECISIONS WITH
RESPECT TO BUYERS DOES NOT REQUIRE A DIFFERENT RESULT.  IT HAS NOT BEEN
SHOWN THAT THE ADVERSE CONSEQENCES ENSUING FROM SUCH RELIANCE ARE SO
SUBSTANTIAL THAT THE BOARD SHOULD BE PRECLUDED FROM RECONSIDERING THE
ISSUE IN AN ADJUDICATIVE PROCEEDING.  FUTHERMORE, THIS IS NOT A CASE IN
WHICH SOME NEW LIABILITY IS SOUGHT TO BE IMPOSED ON INDIVIDUALS FOR
PAST ACTIONS WHICH WERE TAKIN IN GOOD-FAITH RELIANCE ON BOARD
PRONOUNCEMENT.  NOR ARE FINES OR DANAGES INVOLVED HERE.  IN ANY EVENT,
CONCERN ABOUT SUCH CONSEQUENCES IS LARGELY SPECULATIVE, FOR THE BOARD
HAS NOT YET FINALLY DETERMINED WHETHER THESE BUYERS ARE "MANAGERIAL." 

IT IS TRUE, OF COURSE, THAT RULEMAKING WOULD PROVIDE THE BOARD WITH
A FORUM FOR SOLICITING THE INFORMED VIEWS OF THOSE AFFECTED IN INDUSTRY
AND LABOR BEFORE EMBARKING ON A NEW COUSE.  BUT SURELY THE BOARD HAS
DISCRETION TO DECIDE THAT THE ADJUDICATIVE PROCEDURES IN THIS CASE MAY
ALSO PRODUCE THE RELEVANT INFORMATION NECESSARY TO MATURE AND FIAR
CONSIDERATION OF THE ISSUES.  THOSE MOST IMMEDIATELY AFFECTED, THE
BUYERS AND THE COMPANY IN THE PARTICULAR CASE, ARE ACCORDED A FULL
OPPORTUNITY TO BE HEARD BEFORE THE BOARD MAKES ITS DETERMINATION. 

THE JUDGMENT OF THE COURT OF APPEALS IS THEREFORE AFFIRMED IN PART
AND REVERSED IN PART AND THE CAUSE REMANDED TO THAT COURT WITH
DIRECTIONS TO REMAND TO THE BOARD FOR FUTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  AS AMENDED, 61 STAT. 136, 73 STAT. 519, 29 U.S.C. 151 ET SEQ. 

/2/  THE OPINION REVEALED THAT BOARD MEMBER JENKINS DID NOT VEIW YHE
COMPANY'S BUYERS AS EXERCISING MANAGERIAL FUNCTIONS AND THEREFORE
CONSIDERED THEM "EMPLOYEES" UNDER THE ACT TO THE SAME EXTENT AS
PRODUCTION AND MAINTENANCE EMPLOYEES.  190 N.L.R.B., AT 431 N. 2.  A
MAJORITY OF THE BOARD, HOWEVER, APPARENTLY ACCEPTED THE COMPANY'S
CONTENTION THAT THE BUYERS WERE MANAGERIAL EMPLOYEES.  ID., AT 432
N.3. 

/3/  AS MENTIONED, THE BOARD HAD RLIED ON ITS NORTH ARKANSAS
DECISION IN THE PRESENT CASE.  THE EIGHTH CIRCUIT'S EARLIER OPINION
CONCERNING A RELATED ISSUE IN THE SAME CASE REPORTED AT 412 F.2D 324
(1969). 

/4/  SECTION 2 (3) OF THE ACT DEFINES THE TERM "EMPLOYEE" AS
FOLLOWS: 

"THE TERM 'EMPLOYEE' SHALL INCLUDE ANY EMPLOYEE, AND SHALL NOT BE
LIMITED TO THE EMPLOYEES OF A PARTICULAR EMPLOYER, UNLESS THIS
SUBCHAPTER EXPLICITLY STATES OTHERWISE, AND SHALL INCLUDE ANY
INDIVIDUAL WHOSE WORK HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION
WITH, ANY CURRENT LABOR DISPUTE OR BECAUSE OF ANY UNFAIR LABOR
PRACTICE, AND WHO HAS NOT OBTAINED ANY OTHER REGULAR AND SUBSTANTIALLY
EQUIVALENT EMPLOYMENT, BUT SHALL NOT INCLUDE ANY INDIVIDUAL EMPLOYED AS
AN AGRICULTURAL LABORER, OR IN THE DOMESTIC SERVICE OF ANY FAMILY OR
PERSON AT HIS HOME, OR ANY INDIVIDUAL EMPLOYED BY HIS PARENT OR SPOUSE,
OR ANY INDIVIDUAL HAVING THE STATUS OF AN INDEPENDENT CONTRACTOR, OR
ANY INDIVIDAUL EMPLOYED AS A SUPERVISOR, OR ANY INDIVIDUAL EMPLOYED BY
AN EMPLOYER SUBJECT TO THE RAILWAY LABOR ACT, AS AMENDED FROM TIME TO
TIME, OR BY ANY OTHER PERSON WHO IS NOT AN EMPLOYER AS HEREIN
DEFINED."  29 U.S.C. 152 (3). 

SUPERVISORY EMPLOYEES ARE EXPRESSLY EXCLUDED FROM THE PROTECTIONS OF
THE ACT.  THAT TERM IS DEFINED IN 2 (11): 

"THE TERM 'SUPERVISOR' MEANS ANY INDIVIDUAL HAVING AUTHORITY, IN THE
INTEREST OF THE EMPLOYER, TO HIRE, TRANSFER, SUSPEND,NLAY OFF, RECALL,
PROMOTE, DISCHARGE, ASSIGN, REWARD, OR DISCIPLINE OTHER EMPLOYEES, OR
RESPONSIBILITY TO DIRECT THEM, OR TO ADJUST THEIR GRIEVANCES, OR
EFFECTIVELY TO RECOMMEND SUCH ACTION, IF IN COMMECTION WITH THE
FOREGOING THE EXERCISE OF SUCH AUTHORITY IS NOT OF A MERELY ROUTINE OR
CLERICAL NATURE BUT REQUIRES THE USE OF INDEPENDENT JUDGMENT."  29
U.S.C. 152 (11). 

/5/  RED LION BROADCASTING CO. V. FCC, 395 U.S. 367, 381 (1969);
ZEMEL V. RUSK, 381 U.S.1, 11 - 12 (1965); UDALL V. TALLMAN, 380 U.S. 18
16 - 18 (1965); NORWEGIAN NITROGEN CO. V. UNITED STATES, 288 U.S. 294,
315 (1933). 

ZEMEL V. RUSK, SUPRA, AT 11 - 12; COMMISSSIONER V. NOEL ESTATE, 380
U.S. 678, 682 (1965); NLRB V. GULLETT FING CO., 340 U.S., 361, 365 -
366 (1951); HELVERING V. R.J. REYNOLDS TOBACCO CO., 306 U.S. 110, 114 -
115 (1939); NORWEGIAN NITROGEN CO. V. UNITED STATES, SUPRA, AT 313. 

/7/  ZEMEL V. RUSK, SUPRA, AT 11 - 12; COSTANZO V. TILLINGHAST, 287
U.S. 341, 345 (1932); UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459,
472 - 473 (1915). 

/8/  RED LION BROADCASTING CO. V. FCC, SUPRA, AT 380 - 381; FHA V.
DARLINGTON, INC., 358 U.S. 84, 90 (1958). 

/9/  SECTION 2(12) OF THE HOUSE BILL DEFINED THE TERM "SUPERVISOR"  AS
FOLLOWS:  "THE TERM 'SUPERVISOR' MEANS ANY INDIVIDUAL--, 

"(A) WHO HAS AUTHORITY, IN THE INTEREST OF THE EMPLOYER--, "(I) TO
HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE, DEMOTE, DISCHARGE,
ASSIGN, REWARD, OR DISCIPLINE ANY INDIVIDUALS EMPLOYED BY THE EMPLOYER,
OR TO ADJUST THEIR GRIEVANCES, OR TO EFFECTIVELY RECOMMEND AND SUCH
ACTION: OR 

"(II) TO DETERMINE, OR MAKE EFFECTIVE RECOMMENDATIONS WITH RESPECT
TO, THE AMOUNT OF WAGES EARNED BY ANY INDIVIDUALS EMPLOYED BY THE
EMPLOYER, OT TO APP.Y, OR TO MAKE EFFECTIVE RECOMMENDATIONS WITH
RESPECT TO THE APPLICATION OF, THE FACTORS UPON THE BASIS OF WHICH THE
WAGES OF ANY INDIVIDUALS EMPLOYED BY THE EMPLOYER ARE DETERMINED, IF IN
CONNECTION WITH THE FOREGOING THE EXERCISE OF SUCH AUTHORITY IS NOT OF
A MERELY ROUTINE OR CLERICAL NATURE, BUT REQUIRES THE EXERCISE OF
INDEPENDENT JUDGMENT; 

"(B) WHO IS EMPLOYED IN LABOR RELATIONS, PERSONNEL, IMPLOYMENT,
POLICE, OR TIME-STUDY MATTERS OR IN COMMECTION WITH CLAIMS MATTERS OF
EMPLOYEES AGAINST EMPLOYERS, OR WHO IS EMPLOYED TO ACT IN OTHER
RESPECTS FOR THE EMPLOYER IN DEALING WITH OTHER INDIVIDUALS EMPLOYED BY
THE EMPLOYER, OR WHO IS EMPLOYED TO SECURE AND FURNISH TO THE EMPLOYER
INFORMATION TO BE USED BY THE EMPLOYER IN COMMECTION WITH ANY OF THE
FOREGOING; OR 

"(C) WHI BY THE NATURE OF HIS DUTIES IS GIVEN BY THE EMPLOYER
INFORMATION THAT IS OF A CONFIDENTIAL NATURE, AND THAT IS NOT AVAILABLE
TO THE PUBLIC, TO COMPETITORS, OR TO EMPLOYEES GENERALLY, FOR USE IN
THE INTEREST OF THE EMPLOYER." 

/10/  SECTION 2 (11) OF THE SENATE BILL CONTAINED THE FOLLOWING
DENFINATION OF THE TERM "SUPERVISOR":    "THE TERM 'SUPERVISOR' MEANS
ANY INDIVIDUAL HAVING AUTHORITY, IN THE INTEREST OF THE EMPLOYER TO
HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE, DISCHARGE, ASSING,
REWARD, OR DISCIPLINE OTHER EMPLOYEES, OR TO ADJUST THEIR GRIEVANCES,
OR EFFECTIVELY TO RECOMMEND SUCH ACTION IF IN CONNECTION WITH THE
FOREGOING THE EXERCISE OF SUCH AUTHORITY IS NOT OF A MERELY ROUTINE OR
CLERICAL NATURE, BUT REQUIRES THE USE OF INDEPENDENT JUDGMENT." 

/11/  THE REPORT ALSO MAKES EVIDENT THAT CONGRESS WAS CONCERNED WITH
MORE THAN JUST THE POSSIBILITY OF A CONFLICT OF INTEREST IN LABOR
RELATIONS IF SUPERVISORS WERE UNIONIZED: 

"SUPERVISORS ARE MANAGEMENT PEOPLE.  THEY AHVE DISTINGUISHED
THEMSELVES IN THEIR WOIK.  THEY HAVE DEMONSTRATED THEIR ABILITY TO TAKE
CARE OF THEMSELVES WITHOUT DEPENDING UPON THE PRESSURE OF COLLECTIVE
ACTION.  NO ONE FORCED THEM TO BECOME SUPERVISORS.  THEY ABANDONED THE
'COLLECTIVE SECURITY' OF THE RANK AND FILE VOLUNTARILY, BECAUSE THEY
BELIEVED THE OPPORTUNITIES THUS OPENDED TO THEM TO BE MORE VALUABLE TO
THEM THAN SUCH 'SECURITY.'  IT SEEMS WRONG, AND IT IS WRONG, TO SUBJECT
PEOPLE OF THIS KIND, WHO HAVE DEMONSTRATED THEIR INITIATIVE, THEIR
AMBITION AND THEIR ABILITY TO GET AHEAD, TO THE LEVELING PROCESSES OF
SENIORITY, UNIFORMITY AND STANDARDIZATION THAT THE SUPREME COURT
RECOGNIZES AS BEING FUNDAMENTAL PRINCIPLES OF UNIONISM.  (J.I. CASE CO.
V. NATIONAL LABOR RELATIONS BOARD, 321 U.S. 332 (1944).)  IT IS WRONG
FOR THE FOREMEN, FOR IT DISCOURAGES THE THINGS IN THEM THAT MADE THEM
FOREMEN IN THE FIRST PLACE.  FOR THE SAME REASON, THAT IT DISCOURAGES
THOSE BEST QUALIFIED TO GET AHEAD, IT IS WRONG FOR INDUSTRY, AND
PARTICULARLY FOR THE FUTURE STRENGTH AND PRODUCTIVITY OF OUR COUNTRY." 
H.R. REP. NO. 245, 80TH CONG., 1ST SESS., 16 - 17 (1947). 

/12/  THE REPORT STATED IN REFERENCE TO "CONFIDENTIAL EMPLOYEES":
"THESE ARE PEOPLE WHO RECEIVE FROM THEIR EMPLOYERS INFORMATION THAT NOT
ONLY IS CONFIDENTIAL BUT ALSO THAT IS NOT AVAILABLE TO THE PUBLIC, OR
TO COMPETITORS, OR TO EMPLOYEES GENERALLY.  MOST OF THE PEOPLE WHO
WOULD QUALIFY AS 'CONFIDENTIAL' EMPLOYEES ARE EXECUTIVES AND ARE
EXCLUDED FROM THE ACT IN ANY EVENT. 

"THE BOARD, ITSELF, NORMALLY EXCLUDES FROM BARGAINING UNITS
CONFIDENTAIL CLERKS AND SECRETARIES TO SUCH PEOPLE AS THESE."  IBID.
(EMPHASIS ADDED."  IN 1946 IN FORD MOTOR CO., 66 N.L.R.B. 1317, 1322,
THE BOARD HAD NARROWED ITS DEFINITION OF "CONFIDENTIAL EMPLOYEES" TO
EMBRACE ONLY THOSE WHO EXERCISED "'MANAGERIAL' FINCTIONS IN THE FIELD
OF LABOR RELATION."  THE DISCUSSION OF "CONFIDENTIAL EMPLOYEES" IN BOTH
THE HOUSE AND CONFERENCE REPORTS, HOWEVER, UNMISTAKABLY REFERS TO THAT
TERM AS DEFINED IN THE HOUSE BILL, WHICH WAS NOT LIMITED JUST TO THOSE
IN "LABOR RELATIONS."  THUS, ALTHOUGH CONGRESS MAY HAVE MISCONSTRUED
RECENT BOARD PRACTICE, IT CLEARLY THOUGHT THAT THE ACT DID NOT COVER
"CONFIDENTIAL EMPLOYEES" EVEN UNDER A BROAD DEFINITION OF THAT TERM. 

/13/  THE DISSENTING OPINION FIRST ASSERTS THAT THE ACT IS "VERY
PLAIN IN ITS FACE" AND COVERS ALL EMPLOYEES EXCEPT THOSE EXPRESSLY
EXCLUDED (POST, AT 297), BUT LATER CONCEDES THAT THE "CONFERENCE
COMMITTEE IMPLIED TAHT CERTAIN GROUPS OF EMPLOYEES WERE TO BE
EXCLUDED."  (POST, AT 305.)  THE DISSENT THEN ARGUES THAT "MANAGERIAL
EMPLOYEES"  WERE NOT AMONG THOSE IMPLIEDLY EXCLUDED BECAUSE "NO SUCH
EXPLICIT DIRECTION WAS SET FORTH."  IBID.  THIS OVERLOOKS THE FACT
THAT, AS IN THE CASE OF "CONFIDENTIAL EMPLOYEES" AND THOSE WORKING IN
"LABOR RELATIONS, PERSONNEL AND EMPLOYMENT DEPARTMENT," NO EXPLICIT
EXCLUSIONARY PROVISION WAS NECESSARY IN 1947 BECAUSE THE BOARD HAD
NEVER APPROVED THE ORGANIZATION OF "MANAGERIAL EMPLOYEES" IN EITHER A
SEPARATE UNIT OR AS PART OF A RANK-AND-FILE UNIT.  INDEED, EVERY PRIOR
BOARD DECISION HAD RESULTED IN THE EXCLUSION OF SUCH EMPLOYEES AS
"MANAGERIAL." 

MOREOVER, IT CANNOT BE DENIED THAT CONGRESS THOUGHT THAT
"EXECUTIVES"  WERE EXCLUDED FORM THE ACT, FOR THE HOUSE REPORT SO
STATED IN EXPRESS TERMS.  SEE N.12, SUPRA.  AND THE CONGRESSIONAL
DEBATES, ALONG WITH THE SENATE REPORT, EVINCED A CONCERN OVER THE
POSSIBLE EXTENSION OF THE ACT TO COVER CORPORATE VICE PRESIDENTS AND
OTHER EXECUTIVES WHO WERE PART OF MANAGEMENT.  SEE, E.G., 93 CONG.
REC., 3443, 4136, 5014. 

IN ADDITION, THE DISSENT COMPLETELY IGNORES THE FUNDAMENTAL CHANGE
IN INDUSTIAL PHILOSOPHY WHICH WOULD BE ACCOMPLIHSED THROUGH
UNIONIZATION OF "MANAGERIAL EMPLOYEES."  AS MR. JUSTICE DOUGLAS
EXPLAINED IN HIS PACKARD DISSENT, THE WAGNER ACT WAS DESIGNED TO
PROTECT "LABORERS" AND "WORKERS," NOT VICE PRESIDENTS AND OTHERS
CLEARLY WITHIN THE MANAGERIAL HIERARCHY.  EXTENTION OF THE ACT TO COVER
TRUE "MANAGERIAL EMPLOYEES" WOULD INDEED BY REVOLUTIONARY, FOR IT WOULD
EVISCERATE THE TRADITIONAL DISTINCTION BETWEEN LABOR AND MANAGEMENT. 
IF CONGRESS INTENDED A RESULT SO DRASTIC, IT IS NOT UNREASONABLE TO
EXPECT THAT IT WOULD HAVE SAID SO EXPRESSLY. 

THE DISSENT ALSO RELIES UPON THE SPECIFIC INCLUSION OF "PROFESSIONAL
EMPLOYEES"WITHIN THE ACT TO SUPPORT IS ASSERTION THAT "MANAGERIAL
EMPLOYEES" WERE TO BE SIMILARLY TREATED.  POST, AT 297 - 298.  SEE 29
U.S.C. 152 (12).  "PROFESSIONAL EMPLOYEES," HOWEVER, ARE PLAINLY NOT
THE SAME THING AS "MANAGERIAL EMPLOYEES."  AS THE CONFERENCE COMMITTEE
REPORT EXPLAINE, THE TERM "PROFESSIONAL EMPLOYEES" REFERS TO "SUCH
PERSONS AS LEGAL, ENGINEERING, SCIENTIFIC AND MEDICAL PERSONNEL
TOGETHER WITH THEIR JUNIOR PROFESSIONAL ASSISTANTS."  H.R. CONF., REP.
NO. 510, 80TH CONG., 1ST SESS., 36.  IN CONTRAST TO "MANAGERIAL
EMPLOYEES," THEY ARE NOT DEFINED IN TERMS OF THEIR AUTHORITY "TO
FORMULATE, DETERMINE AND EFFECTUATE MANAGEMENT POLICIES."  FORD MOTOR
CO., 66 N.L.R.B., AT 1322. 

/14/  SEE, E.G., EASTERN CAMERA & PHOT CORP., 140 N.L.R.B. 569, 571
(1963); AFL-CIO, 120 N.L.R.B. 969, 973 (1959); GENERAL TEL. CO. OF
OHIO, 112 N.L.R.B. 1225, 1229 (1955). 

THE CASE EXCLUDING BUYERS OR THOSE EXERCISING BUYERS' FUNCTIONS FROM
OTHER UNITS ARE LEGION.  SEE, E.G., ED'S FOODLAND OF SPRINGFIELD, INC.,
159 N.L.R.B. 1256, 1260 (1966); ALBURQUERQUE DIV., ACF IND., INC., 145
N.LR.B. 402, 414 - 415 (1963); WEAVER MOTORS, 123 N.LR.B. 209, 215 -
216 (1959); KEARNEY & TRECKER CORP., 121 N.L.R.B. 817, 822 (159); TEMCO
AIRCRAFT CORP., 121 N.L.R.B. 1085, 1089 (1958); FEDERAL TEL. & RADIO
CO., 120 N.L.R.B. 1652, 1653 - 1654 (1958). 

SUPRISINGLY, THE DISSENT MAINTAINS THAT THE BOARD "ACUTALLY HELD
ONLY TWICE" THAT "MANAGERIAL EMPLOYEES" WERE NOT COVERED BY THE ACT. 
POST, AT 309.  THIS IS DIFFICULT TO RECONCILE WITH THE UNDISPUTED FACT
THAT UNTIL ITS DECISION IN NORTH ARKANSAS THE BOARD HAD NEVER EVEN
CERTIFIED A SEPARATE UNIT OF "MANAGERIAL EMPLOYEES" AND HAD STATED IN
CASE AFTER CASE THAT MANAGERIAL EMPLOYEES WERE NOT TO BE ACCORDED
BARGAINING RIGHTS UNDER THE ACT.  E.G., PALACE LAUNDRY DRY CLEANING, 75
N.LR.B. 320 (1947); AMERICAN LOCOMOTIVE CO., 92 N.L.R.B. 15 (1950);
CURITSS-WRIGHT CORP., 103 N.L.R.B. 458 (1953); SWIFT & CO., 115 N.L.R.B
752 (1956), AND CASES CITED ABOVE. 

/15/  PALACE LAUNDRY DRY CLEANING, SUPRA, AT 323 N.4.  SEE FORD
NOTOR CO., 66 N.L.R.G., AT 1322. 

/16/  IN RETAIL CLERKS INTERNATIONAL ASSN. V. NLRB, SUPRA, MR. CHIEF
JUSTICE (THEN CIRCUIT JUDGE) BURGER EXPLAINED THE BOARD'S POLICY ON
"MANAGERIAL EMPLOYEES, 'THOSE WHO FORMULATE, DETERMINE, AND EFFECTUATE
AN EMPLOYER'S POLICIES,' AFL-CIO, (120 N.L.R.B. 969, 973 (1958)), AND
THOSE WHO HAVE DISCRETION IN THE PERFORMANCE OF THEIR JOBS, BUT NOT IF
THE DISCRETION MUST CONFORM TO AN EMPLOYER'S ESTABLISHED POLICY,
EASTERN CAMERA AND PHOTO CORP., 140 N.L.R.B. 569, 571 (1963) (STORE
MANAGERS WHO COULD SET PRICES ARE NOT MANAGERIAL).  THE RATIONALE FOR
THIS BOARD POLICY, THOUGH UNARTICULATED, SEEMS TO BE THE REASONABLE
BELIEF THAT CONGRESS INTENDED TO EXCLUDE FROM THE PROTECTION OF THE ACT
THOSE WHO COMPRISED A PART OF 'MANAGEMENT' OR WERE ALLIED WITH IT ON
THE THEORY THAT THEY WERE THE ONES) FROM WHOM THE WORKERS NEEDED
PROTECTION."  366 F.2D, AT 645.  (EMPHASIS ADDED.) 

/17/  IN INTERNATIONAL LADIES' GARMENT WORKERS' UNION V. NLRB,
SUPRA, MR. JUSTICE (THEN CIRUIT JUDGE) MARSHALL EXPLAINED THAT
"ALTHOUGH THE ACT MAKES NO SPECIAL PROVISION FOR 'MANAGERIAL
EMPLOYEES,' UNDER A BOARD POLICY OF LONG DURATION, THIS CATEGORY OF
PERSONNEL HAS BEEN EXCLUDED FROM THE PROTECTION OF THE ACT."  339 F.2D,
AT 123. 

/18/  THE CONTRARY INTERPRETATION OF THE ACT URGED BY THE DISSENT
WOULD HAVE FAR-REACHING RESULTS.  ALTHOUGH A SHOP FOREMAN WOULD BE
EXCLUDED FROM THE ACT, A WIDE RANGE OF EXECUTIVES WOULD BE INCLUDED.  A
MAJOR COMPANY, FOR EXAMPLE, MAY HAVE SCORES OF EXECUTIVE OFFICERS WHO
FORMULATE AND EFFECTUATE MANAGEMENT POLICIES, YET HAVE NO SUPERVISORY
RESPONSIBILITY OF IDENTIFIABLE CONFLICT OF INTEREST IN LABOR
RELATIONS.  IF CONGRESS INTENDED THE UNIONIZATION OF SUCH EXECUTIVES,
IT MOST CERTAINLY WOULD HAVE MADE ITS DESIGN PLAIN.  SEE N.13, SUPRA. 

/19/  THE BOARD HAS HAD AMPLE EXPERIENCE IN DEFINING THE TERM
"MANAGERIAL" IN THE MANNER WHICH WE THINK THE ACT CONTEMPLATES.  SEE,
E.G., EASTERN CAMERA & PHOTO CORP., SUPRA, AT 571.  OF COURSE, THE
SPECIFIC JOB TITLE OF THE EMPLOYEES INVOLVED IS NOT INITSELF
CONTROLLING.  RATHER, THE QUESTION WHETHER PARTICULAR EMPLOYEES ARE
"MANAGERIAL" MUST BE ANSWERED IN TERMS OF THE EMPLOYEES' ACTUAL JOB
RESPONSIBILITIES, AUTHORITY, AND RELATIONSHIP TO MANAGEMENT. 

/20/  TO BE SURE, IT WOULD ALSO BE APPROPRIATE FOR THE BOARD TO
EXCLUSE EMPLOYEES FROM A UNIT ON THE GOUND THAT THEIR PARTICIPATION IN
A LABOR ORGANIZATION WOULD CREATE A CONFLICT OF INTERES WITH THEIR JOB
RESPONSIBILITIES.  NEW ENGLAND TELEPHONE, 90 N.L.R.B. 639 (1950).  SEE
ALSO RETAIL CLERKS INTERNATIONAL ASSN. V. NLRB, 125 U.S. APP. D.C., AT
65 - 66, 366 F.2D, AT 644 - 645.  IN THIS RESPECT, RESPONDENT HAS
SUGGESTED TAHT IT WAS NEVER AFFORDED FAIR NOTICE AND AN OPPORTUNITY TO
INTRODUCE EVIDENCE RELATING SPECIFICALLY TO THE POSSIBILITY OF A
CONFLICT OF INTEREST IN LABOR RELATIONS.  TR. OF ORAL ARG. 33 - 35, 43,
47.  AT THE REPRESENTATION HEARING, THE HEARING OFFICER DID NOT
INDICATE THAT THE CONFLICT-OF-INTEREST STANDARD WAS RELEVANT, AND
RESPONDENT PROCEEDED ON THE ASSUMPTION THAT THE ONLY QUESTION WAS
WHETHER THE BUYERS WERE "MANAGERIAL EMPLOYEES."  APP. 8, 83. 

THE PRESENT RECORD MAY WELL BE ADEQUATE FOR PURPOSES OF THIS
DETERMINATION.  HOWEVER, IF NEW AND RELEVANT INFORMATION OF THIS POINT
IS TENDERED ON REMAND, THE BOARD SHOULD CONSIDER REOPENING THE RECORD
FOR PURPOSES OF ITS ADMISSION. 

/21/  SECTION 6 PROVIDES: 

"THE BOARD SHALL HAVE AUTHORITY FROM TIME TO TIME TO MAKE, AMEND,
AND RESCIND, IN THE MANNER PRESCRIBED BY THE ADMINISTRATIVE PROCEDURE
ACT, SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PROVISIONS OF THIS SUBCHAPTER."  29 U.S.C. 156. 

THE ADMINISTRATIVE PROCEDURE ACT (APA) DEFINES "RULE" AS "THE WHOLE
OR A PART OF AN AGENCY STATEMENT OF GENERAL OR PARTICULAR APPLICABILITY
AND FUTURE EFFECT DESIGNED TO IMPLEMENT, INTERPRET, OR PRESCRIBE LAW OR
POLICY.  . . ."  5 U.S.C. 551 (4).  THE RULEMAKING REQUIREMENTS INCLUDE
PUBLICATION IN THE FEDERAL REGISTER OF NOTICE OF THE PROPOSED
RULEMAKING AND HEARING; AN OPPORTUNITY FOR INTERESTED PERSON TO
PARTICIPATE; A STATEMENT OF THE BASIS AND PURPOSE OF THE PROPOSED RULE;
AND PUBLICATION IN THE FEDERAL REGISTER OF THE RULE AS ADOPTED. 

THE APA DEFINES "ADJUDICATION" AS "AGENCY PROCESS FOR THE
FORMULATION OF AN ORDER," AND "ORDER" IS DEFINED AS "THE WHOLE OR A
PART OF A FINAL DISPOSTITION WHETHER AFFIRMATIVE, NEGATIVE, INJUNCTIVE,
OR DECLARATORY IN FORM, OF AN AGENCY IN A MATTER OTHER THAN RULE MAKING
BUT INCLUDING LICENSING."  5 U.S.C. 551 (7), (6).  PROCEEDINGS FOR "THE
CERTIFICATION OF WORKER REPRESENTATIVES" ARE EXEMPTED FROM THE ACT'S
PROCEDURAL REQUIREMENTS FOR AN "ADJUDICATION."  5 U.S.C. 554 (A)(6),
556 (A), 557 (A). 

EMPOWER THE BOARD TO INVESTIGATE PETITIONS INVOLVING QUESTIONS OF UNIT
REPRESENTATION, TO CONDUCT HEARINGS ON SUCH PETITIONS, TO DIRECT
REPRESENTATION ELECTIONS, AND TO CERTIFY THE RESULTS THEREOF.  29
U.S.C. 159 (C)(1) AND (2).  BOARD DETERMINATIONS ON SUCH REPRESENTATION
QUESTIONS WOULD APPEAR TO CONSTITUTE "ORDERS" WITHIN THE MEANING OF THE
APA.  SEE 5 U.S.C 551 (6), (7). 

THE NLRA DOES NOT SPECIFY IN WHAT INSTANCES THE BOARD MUST RESORT TO
RULEMAKING. 

/22/  A NUMBER OF BOARD DECISIONS HAVE EXCLUDED BUYERS FROM UNITS OF
RANK-AND-FILE EMPLOYEES.  SEE N.14, SUPRA.  BUT AMERICAN LOCOMOTIVE CO.
AND SWIFT & CO. APPEAR TO BE THE ONLY CASES IN WHICH THE BOARD HAS HELD
THAT BUYERS ARE NOT ENTITLED TO ORGANIZE IN A SEPARATE UNIT. 

/23/  CHENERY II DID NOT INVOLVE 4 OF THE APA, 5 U.S.C. 553, BUT IT
NEVERTHELESS ANALOGOUS. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, AND MR. JUSTICE MARSHALL JOIN, DISSENTING IN PART. 

I CONCUR IN PART III OF THE COURT'S OPINION INSOFAR AS IT HOLDS THAT
THE BOARD WAS NOT REQUIRED TO RESORT TO RULEMAKING IN DECIDING THIS
CASE, BUT I DISSENT FROM ITS HOLDING IN PART II THAT MANAGERIAL
EMPLOYEES AS A CLASS ARE NOT "EMPLOYEES" WITHIN THE MEANING OF THE
LABOR MANAGEMENT RELATIONS ACT. 

HAVE THE RIGHT TO SELF-ORGAINIZATION, TO FORM, JOIN, OR ASSIST LABOR
ORGANIZATIONS, TO BARGAIN COLLTIVELY THROUGH REPRESENTATIVES OF THEIR
OWN CHOOSING . . . ."  SECTION 8 (A)(1), 29 U.S.C. 158 (A)(1), MAKES IT
AN UNFAIR LABOR PRACTICE TO INTERFERE WITH THE RIGHTS GUARANTEED IN 7,
AND UNDER 8 (A)(5), 29 U.S.C. 158 (A)(5), IT IS AN UNFAIR PRACTICE FOR
THE EMPLOYER TO REFUSE TO BARGAIN COLLECTIVELY WITH REPRESENTATIVES OF
HIS "EMPLOYEES".  FOR THE PURPOSES OF THE FOREGOING SECTIONS, THE TERM
"EMPLOYEE" AS DEFINED IN I (3) OF THE ACT, MEANS "ANY EMPLOYEE" OF THE
EMPLOYER, 

"BUT SHALL NOT INCLUDE ANY INDIVIDUAL EMPLOYED AS AN AGRICULTURAL
LABORER, OR IN THE DOMESTIC SERVICE OF ANY FAMILY OR PERSON AT HIS
HOME, OR ANY INDIVIDUAL EMPLOYED BY HIS PARENT OR SPOUSE, OR ANY
INDIVIDUAL HAVING THE STATUS OF AN INDEPENDEDNT CONTRATOR, OR ANY
INDIVIDUAL EMPLOYED AS A SUPERVISOR, OR ANY INDIVIDUAL EMPLOYED BY AN
EMPLOYER SUBJECT TO THE RAILWAY LABOR ACT . . . ."  29 U.S.C 152 (3). 
THE ISSUE IN THIS CASE IS WHETHER THE TERM "EMPLOYEE"  EXCLUDES NOT
ONLY THOSE SPECIFICALLY EXCLUDED BY 2 BUT ALSO THE BROAD CATEGORY OF
"MANAGERIAL" EMPLOYEES WHO, ALTHOUGH LITERALLY "EMPLOYEES" OF THE
EMPLOYER AND NOT EXPRESSLY EXCLUDED BY 2, ARE NEVERTHELESS NOT TO BE
CONSIDERED EMPLOYEES FOR THE PURPOSES OF THE ACT BECAUSE THEY MAKE AND
IMPLEMENT MANAGERIAL POLICIES.  THE COURT HOLDS THAT NO MANAGERIAL
EMPLOYEE IS AN EMPLOYEE FOR THE PURPOSE OF THE ACT.  I CANNOT AGREE
WITH THIS CONCLUSION. 

THE ACT IS VERY PLAIN ON ITS FACE--"ANY EMPLOYEE,"  WITH SPECIFIED
EXCLUSIONS, IS ENTITLED TO THE BENEFITS OF THE ACT.  EACH OF THE
EXCLUSIONS IS A NARROW AND PRECISELY DEFINED CLASS, AND NONE OF THEM
MENTIONS MANAGERIAL EMPLOYEES.  "SUPERVISORS" ARE EXCLUDED, BUT A
PRECISE DEFINITION OF THAT CLASS, MUCH NARROWER THAN THE CLASS OF
MANAGERIAL EMPLOYEES, IS PROVIDED IN 2 (11): 

"ANY INDIVIDUAL HAVING AUTHORITY, IN THE INTERST OF THE EMPLOYER, TO
HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE, DISCHARGE, ASSIGN,
REQARD, OR DISIPLINE, OTHER EMPLOYEES, OR RESPONSIBLY TO DIRECT THEM,
OR TO ADJUST THEIR GRIEVANCES, OR EFFECTIVELY TO RECOMMEND SUCH ACTION,
IF IN CONNECTION WITH THE FOREGOING THE EXERCISE OF SUCH AUTHORITY IS
NOT OF A MERELY ROUTINE OR CLERICAL NATURE, BUT REQUIRES THE USE OF
INDEPENDENT JUDGMENT."  29 U.S.C. 152 (11). 

WITHOUT MORE, IT COULD NOT BE CONCLUDED THAT CONGRESS MEANT TO
EXCLUDE A WHOLE CATEGORY OF EMPLOYEES IN ADDITION TO THOSE EXPRESSLY
EXCEPTED IN 2.  TO INFER THAT ALL MANAGERIAL EMPLOYEES ARE NOT
EMPLOYEES FOR PURPOSES OF THE ACT BECAUSE A SPECIFIED MANAGERIAL
SUBGROUP, SUPERVISORS, WAS EXPRESSLY EXCLUDED, IS UNWARRANTED, AT LEAST
WHERE CONGRESS WAS CAREFUL TO DEFINE PRECISELY WHAT EMPLOYEES WERE
WITHIN THE SCOPE OF THE SUPERVISORY EXCLUSION. 

WHAT IS NORE, CONGRESS IN 2 (12), 29 U.S.C 152 (12), HAS DEFINED A
SPECIAL SUBCLASS OF PROFESSIONAL EMPLOYEES HAVING SPECIAL SKILLS AND
DUTIES "INVOLVING THE CONSISTENT EXERCISE OF DISCRETION AND JUDGMENT
IN"  THE PERFORMANCE OF THEIR WORK.  THESE EMPLOYEES ARE OBVIOUSLY
"EMPLOYEES" FOR THE PURPOSES OF THEA CT; AND IN 9, 29 U.S.C. 159, AFTER
INVESTING THE BOARD WITH THE POWERS NECESSARY TO DECIDE THE UNITS
APPROPRIATE FOR COLLECTIVE BARGAINING, IT IS PROVIDED THAT THE BOARD
SHALL NOT HOLD ANY BARGAINING UNIT TO BE APPROPRIATE "IF SUCH UNIT
INCLUDES BOTH PROFESSIONAL EMPLOYEES AND EMPLOYEES WHO ARE NOT
PROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF SUCH PROFESSIONAL EMPLOYEES
VOTE FOR INCLUSION IN SUCH UNIT."  IT IS APPARENT, IT SEEMS TO ME, THAT
THERE ARE MANY PROFESSIONAL EMPLOYEES WHO WOULD QUALIFY AS MANAGERIAL
EMPLOYEES; YET THE ACT CLEARLY TREATS THEM AS EMPLOYEES FOR PURPOSES OF
THE ACT AND CONGRESS ASSUMED THEY WOULD HAVE FULL ORGANIZATIONAL AND
BARGAINING RIGHTS UNLESS IT WAS PROVIDED OTHERWISE IN ACCORDANCE WITH
CONGRESSIONAL DESIRES.  HENCE 9 (B). 

INSOFAR AS THE FACE OF THE ACT IS CONCERNED, AND AS COMPARED WITH AN
ACROSS-THE-BOARD EXCLUSION OF "MANAGERIAL"  IMPLOYEES, THE PRESENT
RULING OF THE BOARD, WHICH EXCLUDES ONLY THOSE MANAGERIAL EMPLOYEES
WHOSE WORK MAY INVOLVE THEM IN A CONFLICT OF INTEREST IF THEY ARE
PERMITTED TO BARGAIN COLLECTIVELY, IS A FAR NARROWER EXCLUSION ADHERING
MUSH MORE CLOSELY TO THE RATIONALE OF THE SUPERVISORY EXCLUSION AND TO
THE APPARENT INTENT OF CONGRESS.  THE COURT NEVERTHELESS NOT ONLY HOLDS
THAT THE TERM EMPLOYEE MAY BE CONSTRUED TO EXCLUDE MANAGERIAL EMPLOYEES
BUT ALSO THAT IT MUST BE SO CONSTRUED.  NO NARROWER EXCLUSION, IT IS
SAID, IN ADDITION TO THSOE EXPRESSLY PROVIDED FOR, WILL SATISFY THE
ACT. 

ALTHOUGH IT WOULD APPEAR TO BE A DIFFICULT AND QUESTIONALBLE FEAT TO
REWRITE THE STATUTE SO SUBSTANTIALLY, THE COURT PURPORTS TO FIND
LICENSE FOR ITS RESULTS IN LEGISLATIVE HISTORY OF THE 1947 AMENDMENTS
TO THE ACT, READ IN THE LIGHT OF PREVIOUS AND SUBSEQUENT BOARD AND
COURT DECISIONS.  IT IS TRUE THAT THE EXCLUSION OF SUPERVISORS FROM THE
DEFINITION OF EMPLOYEES FIRST OCCURRED IN 1947, BUT, WITH ALL RESPECT,
I FIND NO BASIS IN THE HISTORY OF THESE AMENMENTS, READ IN THE LIGHT OF
PRIOR BAORD CASES, FOR CONCLUDING THAT CONGRESS INTENDED TO EXCLUDE ALL
MANAGERIAL EMPLOYEES, IN ADDITION TO SUPERVISORS, FROM THE BENEFITS OF
THE ACT. 

AS I UNDERSTAND ITS DECISIONS, THE BOARD AT NO TIME PRIOR TO 1947
COMPLETELY EXCLUDED THE BROAD CATEGORY OF MANAGERIAL EMPLOYEES FROM THE
CLASS OF EMPLOYEES PROTECTED BY THE ACT.  THE COURT CONCEDES THAT THE
BOARD'S CASE DURING THIS PERIOD INVOLVED ONLY THE EXCLUSION OF
MANAGERIAL EMPLOYEES FROM BARGAINING UNITS OF RANK-AND-FILE WORKERS. 
SOME OF THE BOARD'S STATEMENTS MAY HAVE BEEN AMBIGUOUS, BUT NO BOARD
CASE HELD OR HAD OCCASION TO HOLD THAT MANAGERIAL EMPLOYEES AS A GROUP
WOULD NOT BE PROTECTED BY THE ACT.  AS THE COURT ACKNOWLEDGES, THE
BOARD, IN ONE DECISION EXCLUDING BUYERS AND EXPEDITERS FROM A UNIT OF
OFFICE AND CLERICAL EMPLOYEES, POINTEDLY EXPRESSED THE CAVEAT THAT
"(THIS IS NOT TO SAY, HOWEVER, THAT BUYERS AND EXPEDITERS ARE TO BE
DENIED THE RIGHT TO SELF-ORGANIZATION AND TO COLLECTIVE BARGAINING
UNDER THE ACT."  DRAVO COP., 54 N.L.R.B. 1174, 1177 (1944).  IN HUDSON
MOTOR CAR CO., 55 N.L.R.B. 509, 512 (1944), WHERE THE BOARD EXCLUDED
BUYERS FROM A BARGAINING UNIT OF OFFICE AND CLERICAL EMPLOYEES, THE
REASON GIVEN FOR THE EXCLUSION WAS "THAT THEIR DUTIES ARE CLOSELY
ALLIED TO MANAGEMENT, DIFFERING MATERIALLY FROM THOSE OF THE OTHER
CLERICAL EMPLOYEES."  AND IN VULCAN CORP., 58 N.L.R.B. 733, 736 (1944),
THE BOARD EXCLUDED A BUYER FROM A PRODUCTION AND MAINTENCANCE
EMPLOYEES' UNIT, NOT BECAUSE A MANAGERIAL EMPLOYEE COULD NOT BE
ACCORDED BARGAINING RIGHTS, BUT "(BECAUSE OF THE RESPONSIBILITY OF HIS
POSITION AND HIS PECULIAR RELATIONSHIP TO MANAGEMENT, AND IN VIEW OF
THE FACT THAT HIS INTERESTS ARE APPARENTLY DIFFERENT FROM THOSE OF THE
PRODUCTION AND MAINTENANCE EMPLOYEES."  THIS LINE OF BOARD DECISIONS
ADDRESSED THE QUESTION WHETHER CERTAIN MANAGERIAL EMPLOYEES HAD
SUFFICIENT COMMUNITY OF INTEREST WITH RANK-AND-FILE EMPLOYEES TO BE
INCLUDED IN THE SAME BARGAINING UNIT WITH THEM, AND THE BOARD WAS
EXERCISING ITS POWER TO DESIGNATE APPROPRIATE BARGAINING UNITS UNDER
9.  IT IS CLEAR THAT THE BOARD AT NO TIME HELD MANAGERIAL EMPLOLYEES TO
BE OUTSIDE THE SCOPE OF THE ACT DURING THE PERIOD PRIOR TO THE TAFT
HARTLEY AMENDMENTS. 

THE BOARD'S POSITION WITH RESPECT TO SUPERVISORS, AS A CLASS,
VACILLATED FURING THIS TIME, THE GOARD FIRST EXCLUDING SUPERVISORS FROM
RANK-AND-FILE UNITS BUT RECOGNIZING UNITS CONFINED TO SUPERVISORY
EMPLOYEES, THEN REFUSING TO RECOGNIZE ANY BARGAINING UNITS OF
SUPERVISORS AND FINALLY RETURNING TO ITS EARLIER RULE.  BUT EVEN WHEN
THE BOARD DETERMINED FOR A SHORT PERIOD THAT SUPERVISORS SHOULD NOT BE
PERMITTED TO ORGANIZE EITHER WITH OTHER EMPLOYEES OR IN SEPARATE UNITS,
IT NEVER WENT AS FAR AS TO HOLD SUPERVISORS NOT TO BE "EMPLOYEES" UNDER
THE ACT.  THIS WAS THE COURT'S UNDERSTANDING OF THE BOARD'S POSITION IN
PACKARD CO. V. NLRB, 330 U.S. 485, 492 N.3 (1947), THE VERY CASE WHICH
PROMPTED THE 80TH CONGRESS TO GO FURTHER THAN THE BOARD HAD EVER GONE
AND EXCLUDE SUPERVISORS ENTIRELY FROM THE CATEGORY OF EMPLOYEES
ACCORDED BARGAINING RIGHTS UNDER THE ACT.  /1/  IN MARYLAND DRYDOCK
CO., 49 N.L.R.B. 733, 738, 740 (1943), THE BOARD WAS "NO LONGER
CONVINCED THAT FROM THE MERE DETERMINATION THAT A SUPERVISOR IS AN
EMPLOYEE IT FOLLOWS THAT SUPERVISORS MAY CONSTITUTE APPROPRIATE
BARGAINING UNITS"  BECAUSE "THE BENEFITS WHICH SUPERVISORY EMPLOYEES
MIGHT ACHIEVE THROUGH BEING CERTIFIED AS COLLECTIVE-BARGAINING UNITS
WOULD BE OUTWEIGHED NOT ONLY BY THE DANGES INHERENT IN THE COMMINGLING
OF MANAGEMENT AND EMPLOYEE FUNCTIONS, BUT ALSO IN ITS POSSIBLE
RESTRICTIVE EFFECT UPON THE ORGAINZATIONAL FREEDOM OF RANK AND FILE
EMPLOYEES."  SHORTLY THEREAFTER, THE BOARD, FACED WITH A CLAIM BY THE
EMPLOYER THAT FOREMEN ARE NOT EMPLOYEES WITHIN THE MEANING OF THE ACT,
DID NOT ADDRESS THIS POSSIBLE GROUND OF DECISION BUT HELD INSTEAD THAT
IT WAS "NOT PERSUADED THAT THE FACTORS MILITATING AGAINST THE
ESTABLISHMENT OF UNITS OF SUPERVISORY EMPLOYEES, SET FORTH IN . . . THE
MARYLAND DRYDOCK CASE, ARE OBVIATED BY THE CIRCUMSTANCE THAT THE UNION
SEEKING TO REPRESENT SUCH EMPLOYEES IS AN INDEPENDENT, UNAFFILIATED
UNION."  GENERAL MOTORS CORP., 51 N.L.R.B. 457, 460 (1943).  MOREOVER,
THE BOARD HELD IN SOSS MFG. CO., 56 N.L.R.B. 348 (1944), THAT WHILE A
BARGAINING UNIT OF SUPERVISORY EMPLOYEES MIGHT NOT BE APPROPRIATE, A
SUPERVISOR, LIKE OTHER EMPLOYEES, WAS NONETHELESS PROTECTED AGAINST AN
UNFAIR LABOR PRACTICE:  "WE CONCLUDE THAT SUPERVISORS ARE 'EMPLOYEES'
AND THAT SUPERVISORY STATUS DOES NOT BY ITS OWN FORCE REMOVE AN
EMPLOYEE FROM THE PROTECTION OF SECTION 8 (1) AND (3)" OF THE ACT. 
ID., AT 353.  ULTIMATELY, IN THE PACKARD CASES, 61 N.L.R.B. 4, 64
N.L.R.B. 1212 (1945), THE BOARD REVERTED TO ITS EARLIER RULE THAT
BARGAINING UNITS OF SUPERVISORS WERE ENTITLED TO RECOGNITION UNDER THE
ACT AS LONG AS THEY INCLUDED NO RANK-AND-FILE MEMBERS. 

WHEN CONGRESS UNDERTOOK TO AMEND THE ACT FOLLOWING THIS COURT'S
DECISION IN PACKARD UPHOLDING THE BOARD'S INCLUSION OF SUPERVISORS AS
EMPLYEES UNDER THE ACT, IT WAS ACTING IN LIGHT OF A RENEWED BOARD
POLICY TO PERMIT SUPERVISORY EMPLOYEES TO ORGANIZE IN SEPARATE UNITS
UNDER THE MANTLE OF THE ACT'S PROTECTION, AN ENDURING BOARD POLICY NOT
TO EXCLUDE SUPERVISORS FROM THE STATUTORY DEFINITION OF EMPLOYEES, AND
A FURTHER POLICY WHICH EXCLUDED MANAGERIAL EMPLOYEES FROM RANK-AND-FILE
UNITS BUT HAD NEVER DENIED THEM THE RIGHT TO ESTABLISH SEPARATE
BARGAINING UNITS OR PLACED THEM OUTSIDE THE ACT'S DEFINITION OF
"EMPLOYEE."  THE AMENDMENTS ADOPTED BY CONGRESS IN 1947 IN LIGHT OF
THIS PATTERN OF BOARD PRACTICE CLEARLY INTENDED TO DO AWAY WITH THE
PACKARD DECISION APPROVING THE BOARD'S AUTHORITY TO GRANT RECOGNITION
TO UNIONS OF SUPERVISORS.  THE HOUSE AND THE SENATE BOTH PROPSED TO
EXCLUDE SUPERVISORS FROM THE INDIVIDUALS DEFINED AS EMPLOYEES FOR
PURPOSES OF THE ACT.  THE SENATE DEFINITION OF "SUPERVISORS FROM THE
INDIVIDUALS DEFINED AS EMPLOYEES FOR PURPOSES OF THE ACT.  THE SENATE
DEFINITION OF "SUPERVISOR" WAS LIMITED TO INDIVIDUALS WITH AUTHORITY,
IN THE EMPLOYER'S INTEREST, TO TAKE OR RECOMMEND ACTION INVOLVING THE
EMPLOYMENT OF OTHER EMPLOYEES, IF THE EXERCISE OF SUCH AUTHORITY
REQUIRED THE USE OF INDEPENDENT JUDGMENT, S. 1126 2 (11).  BUT THE
PROPOSED HOUSE DEFINITION WOULD ALSO HAVE IDENTIFIED AS EXCLUDED
"SUPERVISORS"  (A) THOSE WHO COULD DETERMINE OR EFFECTIVELY RECOMMEND
THE WAGES TO BE PAID OTHER EMPLOYEES, (B) EMPLOYEES WITH RESPONSIBILITY
IN THE AREA OF LABOR RELATIONS, PERSONNEL, EMPLOYEMENT, POLICE, OR TIME
STUDY MATTERS, AND (C) CONFIDENTIAL EMPLOYEES, H.R. 3020 5 (12). 
NEITHER OF THESE PROPOSALS SOUGHT TO EXCLUDE IN EXPRESS TERMS THE
ENTIRE CATEGORY OF "MANAGERIAL EMPLOYEES,"  I.E., THOSE WHO ARE IN A
POSITION TO FORMULATE, DETERMINE, AND EFFECTUATE MANAGEMENT POLICIES
BEYOND THE AREA OF LABOR RELATIONS, WHETHER BY DEFINING SUCH PERSONS AS
"SUPERVISORS"  OR BY PROPOSING A SEPARATE EXCLUSION FOR "MANAGERIAL
EMPLOYEES."  SUCH A STEP COULD EASILY HAVE BEEN TAKEN HAD CONGRESS
INTENDED TO EXCLUDE THESE INDIVIDUALS FROM THE PROTECTION OF THE ACT. 
BUT IT WAS NOT, DESPITE THE FACT THAT THE BOARD HAD RECENTLY CONSIDERED
WHETHER CERTAIN EMPLOYEES HOULD BE DENIED ORGANIZATIONAL RIGHTS, EITHER
BECAUSE THEY WERE SUPERVISORY OR, SEPARATELY, BECAUSE THEIR JOB
RESPONSIBILITES INVOLVED THE EXERCISE OF MANAGERIAL DISCRETION.  SEE,
E.G., FORD MOTOR CO., 66 N.L.R.B. 1317, 1322 (1946); ELECTRIC
CONTROLLER & MFG. CO., 69 N.L.R.B. 1241 (1946).  ONE WOULD EXPECT THAT
IF CONGRESS HAD INTENDED TO ELIMINATE THE BOARD'S AUTHORITY TO ACCORD
BARGAINING RIGHTS TO MANAGERIAL EMPLOYEES, AS WELL AS SUPERVISORS, IT
WOULD HAVE SAID SO, PARTICULARLY AS BOARD PRACTICE HAD TREATED THESE
TWO CATEGORIES SEPARATELY AND DIFFERENTLY. 

THE COURT WOULD FILL THIS GAP BY REFERRING TO THE CONFERENCE
COMMITTEE REPORT EXPLAINING THE ADOPTION OF THE NARROWER SENATE
DEFINITION OF EXCLUDED "SUPERVISORS."  THIS REPORT IS INDEED
INSTRUCTIVE, BUT IT INDICATES EVEN MORE CLEARLY, IN MY OPINION, THAT
CONGRESS DID NOT CONTEMPLATE THE EXCLUSION OF MANAGERIAL EMPLOYEES FROM
THE COVERAGE OF THE ACT: 

     "THE CONFERENCE AGREEMENT, IN THE DEFINITION OF 'SUPERVISOR,'

  LIMITS SUCH TERM TO THOSE INDIVIDUALS TREATED AS SUPERVISORS

  UNDER THE SENATE AMENDMENT.  IN THE CASE OF PERSONS WORKING IN

  LABOR RELATIONS, PERSONNEL AND EMPLOYEMENT DEPARTMENTS, IT WAS

  NOT THOUGHT NECESSARY TO MAKE SPECIFIC PROVISION, AS WAS DONE IN

  THE HOUSE BILL, SINCE THE BOARD HAS TREATED, AND PRESUMABLY WILL

CONTINUE TO TREAT, SUCH PERSONS AS OUTSIDE THE SCOPE OF THE ACT. 

  THIS IS THE PREVAILING BOARD PRACTICE WITH RESPECT TO SUCH PEOPLE

  AS CONFIDENTIAL EMPLOYEES AS WELL, AND IT WAS NOT THE INTENTION

  OF THE CONFEREES TO ALTER THIS PRACTICE IN ANY RESPECT.  THE

  CONFERENCE AGREEMENT DOES NOT TREAT TIME-STUDY PERSONNEL OR

  GUARDS AS SUPERVISORS, AS DID THE HOUSE BILL.  SINCE, HOWEVER,

  TIME-STUDY EMPLOYEES MAY QUALIFY AS PROFESSIONAL PERSONNEL, THE

  SPECIAL PROVISIONS OF THE SENATE AMENDMENT . . .APPLICABLE WITH

RESPECT TO PROFESSIONAL EMPLOYEES WILL COVER MANY IN THIS

CATEGORY.  IN THE CASE OF GUARDS, THE CONFERENCE AGREEMENT DOES

  NOT PERMIT THE CERTIFICATION OF A LABOR ORGANIZATION AS THE

  BARGAINING REPRESENTATIVE OF GUARDS IF IT ADMITS TO MEMBERSHIP,

  OR IS AFFILIATED WITH ANY ORGANIZATION THAT ADMITS TO MEMBERSHIP,

  EMPLOYEES OTHER THAN GUARDS.  THE PROVISION DEALING WITH THE

  CERTIFICATION OF BARGAINING UNITS FOR GUARDS IS DEALT WITH IN

  SECTION 9 (B) OF THE CONFERENCE AGREEMENT . . ."  H.R. CONF.,

  REP. NO. 510, 80TH CONG., 1ST SESS., 35 - 36 (1947). 

THE COURT EMPHASIZES THAT THE STATUTORY LANGUAGE ADOPTED IN THE 1947
AMENDMENTS DID NOT EXPRESSLY EXCLUDE PERSONS WORKING IN LABOR
RELATIONS, PERSONNEL, OR EMPLOYMENT DEPARTMENTS, OR CONFIDENTIAL
EMPLOYEES, BUT THAT THESE WERE "IMPLIEDLY EXCLUDED" FROM THE ACT'S
COVERAGE BY DINT OF THE CONFERENCE REPORT STATEMENTS JUST QUOTED.  FROM
THIS PREMISE, THE COURT PROCEEDS TO ASSUME THAT OTHER CATEGORIES OF
EMPLOYEES, SIMILARLY NOT EXCLUDED UNDER THE EXPRESS TERMS OF THE
AMENDED DEFINITION OF "EMPLOYEE," WERE ALSO IMPLIEDLY EXCLUDED FROM THE
ACT.  IN MY VIEW, THERE IS NO WARRANT FOR THE ASSUMPTION THAT GROUPS OF
EMPLOYEES, WHICH THE STATUTE, OR EXPRESS LEGISLATIVE STATEMENTS, DO NOT
ADDRESS, ARE TO BE EXCLUDED FROM THE ACT; NOR IS THERE ANY LEGISLATIVE
DEBATE WHATSOEVER WHICH CAN REASONABLY BE CONSTRUED AS EXPRESSING AN
AUTHORITATIVE INTENT TO EXCLUDE MANAGERIAL EMPLOYEES AS A CLASS. 
THE CONFERENCE COMMITTEE REPORT EXPLAINS THAT THE ACT WAS NOT AMENDED
EXPRESSLY TO EXCLUDE LABOR RELATIONS AND CONFIDENTIAL EMPLOYEES FROM
COVERAGE UNDER THE ACT, BECAUSE IT WAS ALREADY PREVAILING BOARD
PRACTICE TO EXCLUDE THESE EMPLOYEES.  THIS WAS NOT AN ENTIRELY ACCURATE
REPRESENTATION OF BOARD PRACTICE, WHICH SEEMED TO HOLD ONLY THAT SUCH
EMPLOYEES SHOULD NOT BE INCLUDED IN RANK-AND-FILE BARGAINING UNITS, AND
NOT NECESSARILY THAT THEY WOULD HAVE NO PROTECTIONS UNDER THE ACT, SEE,
E.G., MURRAY OHIO MFG. CO., 61 N.L.R.B. 1317 (1946), BUT EVEN ACCEPTING
THE CONFERENCE REPORT AS AN AUTHORITATIVE DIRECTION THAT THESE WORKERS
WERE NOT TO BE CONSIDERED EMPLOYEES WITHIN THE MEANING OF 2, IT DOES
NOT FOLLOW THAT OTHER GROUPS OF EMPLOYEES, REGARDING WHOM NO SUCH
EXPLICIT DERECTION WAS SET FORTH AND WHOM THE BOARD HAD NOT TREATED IN
SYCH A MANNER, WERE ALSO INTENDED TO BE EXCLUDED.  THE CONFERENCE
COMMITTEE IMPLIED THAT CERTAIN GROUPS OF EMPLOPYEES WERE TO BE
EXCLUDED, BUT IT ALSO NOTED THAT SOME TIME-STUDY PERSONNEL COULD
QUALIFY AS PROFESSIONAL EMPLOYEES AND COULD THEREFORE ORGANIZE IN UNITS
WHICH A MAJORITY OF THEM APPROVED, AND THAT GUARDS WERE NOT WHOLLY
EXCLUDED FROM THE ACT, BUT WERE RESTRICTED TO UNITS COMPOSED SOLELY OF
OTHER GUARDS.  9 (B), 19 U.S.C. 159 (B).  GIVEN THAT CONGRESS MADE
SPECIFIC PROVISION FOR TIME-STUDY AND PLANT PROTECTION EMPLOYEES, WHO
WERE TO BE ENTITLED TO BARGAINING RIGHTS, AND THAT IT EXPRESSED A
DESIRE TO EXCLUDE ONLY LABOR RELATIONS AND CONFIDENTIAL EMPLOYEES WHOM
IT THOUGHT THE BOARD HAD PREVIOUSLY HELD OUTSIDE THE ACT, THERE IS NO
REASON TO SUPPOSE FROM THE FURTHER CONGRESSIONAL SILENCE THAT SPECIAL
PROVISONS, WHETHER OF INCLUSION OR EXCLUSION, WERE INTENDED WITH
RESPECT TO OTHER CATEGORIES OF EMPLOYEES.  IF IT BE ARGUED THAT THE
ABSENCE OF ANY EXPRESS TREATMENT OF MANAGERIAL EMPLOYEES BY CONGRESS
WAS SOMEHOW INTENDED TO CODIFY PRIOR BOARD PRACTICE, THEN THE
UNAVOIDABLE FACT IS THAT BOARD DECISONS HAD NOT HELD THAT MANAGEIAL
EMPLOYEES WERE UNPROTECTED BY THE ACT.  THEY HAD ONLY BEEN EXCLUDED
FROM RANK-AND-FILE BARGAINING UNITS.  MOREOVER, THER IS NO INDICATION
IN THE LEGISLATIVE HISTORY AS TO WHAT CONGRESS MIGHT HAVE PERCEIVED THE
BOARD'S RULE TO BE WITH RESPECT TO MANAGERIAL EMPLOYEES AS A CLASS. 
/2/ 

NOR IS THE COURT'S POSITION MUCH ADVANCED BY THE FEW PASSING
REFERENCES IN THE HOUSE REPORT AND IN THE FLOOR DEBATES, WHICH THE
COURT CITES, ANTE, AT 283, AND NN. 12 AND 13, FOR THE ASSUMPTION THAT
"EXECUTIVES" WOULD BE EXCLUDED FROM THE ACT APART FROM WHETHER THEY
WERE CONFIDENTIAL EMPLOYEES OR NOT, AND FOR THE DISCUSSION OF
SUPERVISORS AS REPRESENTATIVES OF MANAGEMENT WHOM THE AMENDMENTS SOUGHT
TO EXCLUDE.  IN NONE OF THE CITED PASSAGES WAS THE CATEGORY OF
"MANAGERIAL EMPLOYEES," AS THE BOARD HAD DEFINED IT, EVER ADDRESSED,
AND THE FOCUS OF THESE REMARKS IS CLEARLY DIRECTED AT THE EXCLUSION OF
SUPERVISORS AS DEFINED IN THE PROPOSED AMENDMENTS.  PERHAPS IT WAS
CLEAR TO CONGRESS THAT A CONFIDENTIAL SECRETARY'S SUPERIOR WOULD BE
EXCLUDED BY THE ACT, BUT SUCH AN INDIVIDUAL WOULD EITHER BE A
CONFIDENTIAL EMPLOYEE HIMSELF, OR ASUPERVISOR, OR BOTH.  WE ARE
REFERRED TO NOTHING IN THE DEBATES OR OTHER CONGRESSIONAL MATERIALS
WHERE THE CATEGORY OF MANAGERIAL EMPLOYEES, AS DISTINGUISHED FROM THE
CLASS OF SUPERVISORY EMPLOYEES, A DISTINCTION THE BOARD HAD PREVIOUSLY
DRAWN, IS DISCUSSED.  /3/ 

FINALLY, IF WE ARE TO CONSIDER THE 1947 AMENDMENTS AS INTENDING TO
ENACT THE VIEWS OF THE DISSENTING JUSTICES IN PACKARD, IT SHOULD BE
NOTED THAT THE DISSENT INTERPRETED THE NATIONAL LABOR RELATIONS ACT TO
"PUT IN THE EMPLOYER CATEGORY ALL THOSE WHO ACTED FOR MANAGEMENT NOT
ONLY IN FORMULATING BUT ALSO IN EXECUTING ITS LABOR POLICIES."  330
U.S., AT 496.  (EMPHASIS SUPPLIED.)  SEE ALSO ID., AT 500.  LIMITING
THE EXCLUSION OF MANAGERIAL EMPLOYEES TO THOSE WHO ARE CHARGED WITH THE
FORMULATION OR IMPLEMENTATION OF LABOR RELATIONS POLICIES, AS THE BOARD
HAS NOW DONE IN THE CASE BEFORE US, IS ENTIRELY CONSISTENT WITH THIS
VIEW AND WITH THE PURPOSES OF THE ACT.  AS THE SENATE REPORT NOTED, ITS
CONCERN IN CHANGING THE LAW WITH RESPECT TO SUPERVISORY EMPLOYEES, AS
CONSTRUED BY PACKARD, WAS THAT THE BALANCE OF POWER IN THE COLLECTIVE
BARGAINING PROCESS HAD BEEN UPSET BY "THE SUCCESSFUL EFFORTS OF LABOR
ORGANIZATIONS TO INVOKE THE WAGNER ACT FOR COVERING SUPERVISORY
PERSONNEL, TRADITIONALLY REGARDED AS PART OF MANAGEMENT, INTO
ORGANIZATIONS COMPOSED OF OR SUBSERVIENT TO THE UNIONS OF THE VERY MEN
THEY WERE HIRED TO SUPERVISE."  S. REP. NO. 105, 80TH CONG., 1ST SESS.,
3 (1947).  SEE ALSO H.R. REP. NO. 245, 80TH CONG., 1ST SESS., 13
(1947); 93 CONG. REC 3553.  WHERE AN EMPLOYEE MAY BE DEEMED MANAGERIAL
BECAUSE OF THE NATURE OF HIS DUTIES APART FROM SUPERVISION OF OTHER
EMPLOYEES, HOWEVER, THERE IS NO REASON TO SUPPOSE THAT UNION
AFFILIATION, AT LEAST IN SEPARATE UNITS, WOULD RAISE THE SAME LABOR
RELATIONS CONCERN. 

FOLLOWING THE TAFT-HARTLEY AMENDMENTS IN 1947, THE BOARD CONTINUED
TO HOLD, AS IT HAD FREQUENTLY HELD BEFORE, THAT BUYERS, AND OTHERS WITH
MANAGERIAL INTERESTS, WERE TO BE EXCLUDED FROM BARGAINING UNITS OF
OTHER EMPLOYEES.  DENVER DRY GOODS, 74 N.L.B.R. 1167 (1947); PALACE
LAUNDRY DRY CLEANING, 75 N.L.B.R. 320; (1947); DENTON'S, INC., 83
N.L.R.B. 35, 37, (1949); WISE, SMITH & CO., 83 N.L.R.B. 1019, 1021 N.6
(1949); WESTINGHOUSE ELECTRIC CORP., 89 N.L.R.B. 8, 14 (1950).  BUT IN
1950, IN AMERICAN LOCOMOTIVE CO., 92 N.L.R.B. 115, 117, THE BOARD, IN
REJECTING THE INCLUSION OF BUYERS IN AN OFFICE AND CLERICAL EMPLOYEES
UNIT OR THEIR PLACEMENT IN A SEPARATE BARAGAINING UNIT, SAID THAT "(AS
IT APPEARS THAT THE BUYERS ARE AUTHORIZED TO MAKE SUBSTANTIAL PURCHASES
FOR THE EMPLOYER, WE FIND THAT THEY ARE REPRESENTATIVES OF MANAGEMENT,
AND AS SUCH MAY NOT BE ACCORDED BARGAINING RIGHTS UNDER THE ACT." 
RELIACE FOR THIS STATEMENT WAS PLACED ON THE WISE, SMITH AND
WESTINGHOUSE ELECTRIC CASES WHICH INVOLVED THE APPROPRIATENESS OF
PLACING THE MANAGERIAL EMPLOYEES IN A PARTICULAR BARGAINING UNIT.  IN
SWIFT & CO., 115 N.L.R.B. 752 (1956), THE BOARD HELD THAT A PROPOSED
UNIT OF PROCUREMENT DRIVERS COULD NOT BE ACCORDED BARGAINING RIGHTS,
EVEN IN A SEPARATE UNIT.  THERE, THE BOARD FLATLY ASSERTED THAT IT WAS
"THE CLEAR INTENT OF CONGRESS TO EXCLUDE FROM THE COVERAGE OF THE ACT
ALL INDIVIDUALS ALLIED WITH MANAGEMENT."  ID., AT 753 - 754.  THE SOLE
SUPPORT FOR THIS STATEMENT, WHICH THE BOARD HAS NOW REPUDIATED, WAS A
REFERENCE TO THE STATUTORY DEFINITIONS OF "EMPLOYEE"  AND "EMPLOYER"
AND TO THE CONFERENCE COMMITTEE REPORT'S EXPLANATION OF THE TERM
"SOPERVISORS," AS QUOTED ABOVE AND REPRINTED IN THE CONGRESSIONAL
RECORD. 

THE BOARD CONTINUED TO EXCLUDE MANAGERIAL EMPLOYEES FROM BARGAINING
UNITS OF OTHER EMPLOYEES THEREAFTER, OCCASIONALLY CITING SWIFT, E.G.,
COPELAND REFRIGERATION CORP., 118 N.L.R.B. 1364, 1365 N.2 (1957); AFL
CIO, 120 N.L.R.B. 969 (1958), BUT MORE FREQUENTLY EXCLUDING MANAGERIAL
EMPLOYEES FROM PARTICULAR UNITS WITHOUT CITING THAT CASE OR SUGGESTING
THAT THE EXCLUDED WORKERS WERE NOT PROTECTED EMPLOYEES.  MACK TRUCKS,
INC., 116 N.L.R.B. 1576, 1577 - 1578 (1956); DIANA SHOP, 118 N.L.R.B.
743, 745 (1957).  E.G., FEDERAL TEL. & RADIO CO., 120 N.L.R.B. 1652,
1654 (1958); KEARNEY & TRECKER CORP., 121 N.L.R.B. 817, 822 (1958);
WEAVER MOTORS, 123 N.L.R.B. 209, 216 (1959); EASTERN CAMERA & PHOTO
CORP., 140 N.L.R.B. 569, 572 (1963). 

UNTIL THE BOARD OVERRULED SWIFT IN NORTH ARKANSAS ELECTRIC
COOPERATIVE, INC., 185 N.L.R.B. 550 (1970), IT HAD THUS ACTUALLY HELD
ONLY TWICE THAT MANAGERIAL EMPLOYEES COULD NOT BE AFFORDED PROTECTION
UNDER THE ACT, AND ITS SUPPORT FOR THAT CONCLUSION WAS WITHOUT
PERSUASIVE APPEAL.  IT IS TRUE, OF COURSE, THAT THE BOARD HAD NOT HELD
TO THE CONTRARY EITHER, AND THAT VARIOUS COURTS OF APPEALS INTERPRETED
AND DEFERRED TO THE BOARD'S POSITION AS ONE OF TOTAL EXCLUSION OF
MANAGERIAL EMPLOYEES FROM THE SCOPE OF THE ACT, ALTHOUGH IN NONE OF
THESE CASES WAS THAT CONCLUSION NECESSARY TO THE RESULT REACHED.  BUT
THE BOARD HAS NOW REJECTED THIS BROAD EXCLUSION, AND THE QUESTION IS
WHEHTER THE CURRENT VIEW SHOULD BE SUSTAINED.  THAT THE BOARD NOW
REFUSES TO FOLLOW ITS PRIOR PRECEDENTS IS NOT REASON TO OVERTURN IT,
FOR WE HAD FREQUENTLY SUSTAINED BOARD DECISIONS OVERRULING ITS PRIOR
INTERPRETATIONS OF THE ACT.  E.G., GOLDEN STATE BOTTLING CO.V. N.RB,
414 U.S. 168 (1973); PACKARD CO. V. NLRB, 330 U.S. 485 (1947).  AND THE
FACE OF THE ACT AND THE EVENTS OF 1947 DEMONSTRATE THAT THE BOARDS
PRESENTS DECISION IS A PERMISSIBLE CONSTRUCTION OF THE STATUTE. 

NOR DID CONGRESS IN 1959, WHEN IT AGAIN AMENDED THE STATUTE,
EXPRESSLY OR IMPLIEDLY ENACT OR APPROVE THE STATUTORY INTERPRETATION
ANNOUNCED IN SWIFT & CO. THE 1959 AMENDMENTS DEALT WITH SECONDARY
BOYCOTTS AND PICKETING, AND WE ARE CITED TO NOTHING SUGGESTING THAT THE
ATTENTION OF CONGRESS AT THAT TIME WAS DIRECTED TO OR FOCUSED ON THE
QUESTION WHETHER MANAGERIAL EMPLOYEES WERE COVERED OR EXCLUDED IN THE
STATUTE.  CONGRESSIONAL SILENCE DOES NOT IMPLY LEGISLATIVE APPROVAL OF
ALL BOARD RULINGS THERETOFORE MADE.  AS THE COURT NOTED IN BOYS MARKETS
V. RETAIL CLERKS UNION, 398 U.S. 235, 241 - 242 (1970), WHICH OVERRULED
SINCLAIR REFINING CO. V. ARKINSON, 370 U.S. 195 (1962): 

     "NOR CAN WE AGREE THAT THE CONCLUSIVE WEIGHT SHOULD BE
ACCORDED

  TO THE FAILURE OF CONGRESS TO RESPOND TO SINCLAIR ON THE THEORY

  THAT CONGRESSIONAL SILENCE SHOULD BE INTERPRETED AS ACCEPTANCE OF

  THE DECISION.  THE COURT HAS CAUTIONED THAT '(IT IS AT BEST

  TREACHEROUS TO FIND IN CONGRESSIONAL SILENCE ALONE THE ADOPTION

OF A CONTROLLING RULE OF LAW.'  GIROUARD V. UNITED STATES, 328

  U.S. 61, 69 (1949).  THEREFORE, IN THE ABSENCE OF ANY PERSUASIVE

  CIRCUMSTANCES EVIDENCING A CLEAR DESIGN THAT CONGRESSIONAL

  INACTION BE TAKEN AS ACCEPTANCE OF SINCLAIR, THE MERE SILENCE OF

  CONGRESS IS NOT A SUFFICIENT REASON FOR REFUSING TO CONSIDER THE

  DECISION." 

SEE ALSO COMMISSIONER V. GLENSHAW GLASS CO., 348 U.S. 426, 431 (1955). 
SIMILARLY, FROM THE CONGRESSIONAL SILENCE IN 1959 CONCERNING SWIFT'S
EXCLUSION OF MANAGERIAL EMPLOYEES FROM THE PROTECTION OF THE ACT, IT
SHOULD NOT BE ASSUMED THAT CONGRESS INTENDED TO APPROVE OF SWIFT AND
FORECLOSE THE POSSIBILITY OF THE BOARD'S RECONSIDERING SWIFT AND
OVERRULING IT ON FURTHER AND MORE EXAMINING REFLECTION.  NLRB V. SEVEN
UP CO., 344 U.S. 344, 350-352 (1953). 

THE BOARD'S DECISIONS IN THIS AREA HAVE NOT ESTABLISHED A COHENSIVE
AND PRECISE PATTERN OF RULINGS.  IT IS OFTEN DIFFICULT TO TELL WHETHER
AN INDIVIDUAL DECISION IS BASED ON THE PROPRIETY OF EXCLUDING CERTAIN
EMPLOYEES FROM A PARTICULAR BARGIANING UNIT OR WHETHER THE WORKER UNDER
CONSIDERATION IS THOUGHT TO BE OUTSIDE THE SCOPE OF THE ACT.  BUT THIS
COURT HAS CONSISTENTLY SAID THAT IT WILL ACCEPT THE BOARD'S
DETERMINATION OF WHETHER A PARTICULAR INDIVIDUAL IS AN "EMPLOYEE" UNDER
THE ACT IF THAT DETERMINATION "HAS 'WARRANT IN THE RECORD' AND A
REASONABLY BASIS IN LAW."  NLRB V. HEARST V. UNITED INSURANCE CO., 390
U.S. 254, 260 (1968).  THERE IS NO REASON HERE TO HAMSTRING THE BOARD
AND DENY A BROAD CATEGORY OF EMPLOYEES THOSE PROTECTIONS OF THE ACT
WHICH NEITHER THE STATUTORY LANGUAGE NOR ITS LEGISLATIVE HISTORY
REQUIRES SIMPLY BECAUSE THE BOARD AT ONE TIME INTERPRETED THE ACT-
ERRONEOUSLY IT SEEMS TO ME--TO EXCLUDE ALL MANAGERIAL AS WELL AS
SUPERVISORY EMPLOYEES. 

I RESPECTFULLY DISSENT. 

/1/  "THE BOARD HAD HELD THAT SUPERVISORY EMPLOYEES MAY ORGANIZE IN
AN INDEPENDENT UNION, UNION COLLIERIES COAL CO., 41 N.L.R.B. 691, 44
N.L.R.B. 165; AND IN AN AFFILIATED UNION, GODCHAUX SUGARS, INC., 44
N.L.R.B. 874.  THEN IT HELD THAT THERE WAS NO UNIT APPROPRIATE TO THE
ORGANIZATION OF SUPERVISORY EMPLOYEES.  MARYLAND DRYDOCK CO., 49
N.L.R.B. 733; BOEING AIRCRAFT CO., 51 N.L.R.B. 67; MURRAY CORP. OF
AMERICA, 51 N.L.R.B. 64; GENERAL MOTORS CORP., 51 N.L.R.B. 457.  IN
THIS CASE, 61 N.L.R.B. 4, 64 N.L.R.B. 1212; IN L.A. YOUND SPRING & WIRE
CORP., 65 N.L.R.B. 298; JONES & LAUGHLIN STEEL CORP., 66 N.L.R.B. 386,
71 N.L.R.B. 1251; AND IN CALIFORNIA PACKING CORP., 66 N.L.R.B. 1461,
THE BOARD RE-EMBRACED ITS EARLIER CONCLUSIONS WITH THE SAME
PROGRESSEIVE BOLDNESS IT HAD SHOWN IN THE UNION COLLIERIES AND GODCHAUX
SUGARS CASES.  IN NONE OF THIS SERIES OF CASES DID THE BOARD HOLD THAT
SUPERVISORS WERE NOT EMPLOYEES.  SEE SOSS MANUFACTURING CO., 56
N.L.R.B. 348." 

/2/  THE MAJORITY ARGUES THAT "NO EXPLICIT EXCLUSIONARY PROVISION
WAS NECESSARY IN 1947 BECAUSE THE BOARD HAD NEVER APPROVED THE
ORGANIZATION OF 'MANAGERIAL EMPLOYEES' IN EITHER A SEPARATE UNIT OR AS
PART OF A RANK-AND-FILE UNIT."  ANTE, AT 284 - 285, N.13.  IT DOES NOT
DISPUTE, HOWEVER, THAT THE BOARD HAD NEVER DISAPPROVED THEIR
ORGANIZATION EITHER, AND ADMITS THAT THE BOARD HAD STATED IN DRAVO
CORP., 54 N.L.R.B. 1174 (1944), THAT BY EXCLUDING BUYERS FROM A
CLERICAL EMPLOYEES UNIT IT DID NOT MEAN TO SAY THEY WOULD BE DENIED
BARGAINING RIGHTS UNDER THE ACT.  THE BOARD HAD NOT HELD MANAGERIAL
EMPLOYEES EXCLUDED PRIOR TO 1947, AND CONGRESS DID NOT ADDRESS ITSELF
TO THE CALSS OF "MANAGERIAL EMPLOYEES" BY THAT TERM OR BY REFERENCE TO
THE BOARD'S DEFINITION.  THERE IS, THERFORE, NO JUSTIFICATION FOR
EXCLUDING FROM THE STATUTORY DESIGNATION OF "ANY EMPLOYEE" AN ENTIRE
CLASS THAT THE BOARD HAD NOT PREVIOUSLY EXCLUDED AND THAT CONGRESS DID
NOT EXPRESSLY DEAL WITH IN ITS AMENDMENTS TO THE ACT OR IN THE
LEGISLATIVE MATERIALS SURROUNDING THEIR ADOPTION.  IF CONGRESS HAD
INTENDED TO EXCLUDE MANAGERIAL EMPLOYEES, IT WOULD HAVE SAID SOMETHING
ABOUT THEM, SINCE IT TOOK SUCH GREAT PAINS TO DISCUSS SUPERVISORS AND
LABOR RELATIONS, CONFIDENTIAL, TIME-STUDY, AND PLANT PROTECTION
EMPLOYEES.     /3/  THE MAJORITY EXPRESSES CONCERN THAT EXTENDING
ORGAINZATIONAL AND BARGAINING RIGHTS TO MANAGERIAL EMPLOYEES WOULD
PERMIT THE EXTENSION OF THE ACT TO VICE PRESIDENTS AND OTHER HIGH LEVEL
EXECUTIVES, THEREBY BLURRING THE DISTINCTION BETWEEN MANAGEMENT AND
LABOR.  THE CONCERN IS OVERBLOWN; FOR MOST, IF NOT ALL, EXECUTIVES WILL
OBVIOUSLY BE "SUPER" SUPERVISORS, CONFIDENTIAL EMPLOYEES, PROFESSIONAL
OR WITHIN THE BOARD'S DEFINITION OF THOSE EMPLOYEES WHOSE ORGANIZATION
WOULD RESULT IN A CONFLICT OF INTEREST WITH RESPECT TO THE COMPANY'S
LABOR POLICIES.  IF THERE ARE REMAINING EXECUTIVES OUTSIDE THESE
CATEGORIES WHO SHOULD ALSO BE EXCLUDED, THE BOARD SHOULD BE TOLD TO
EXCLUDE THAT PARTICULAR GROUP, RATHER THAN TO EXCLUDE THE MANAGERIAL
CLASS THAT WOULD REACH NOT ONLY VERTICALLY, BUT LATERALLY, TO DENY
"HUNDREDS OF THOUSANDS," 475 F.2D 485, 496, OF BUYERS AND OTHER
RELATIVELY LOW-LEVEL MANAGEMENT EMPLOYEES THE ORGANIZATIONAL BENEFITS
AND OTHER PROTECTIONS OF THE ACT OTHERWISE AVAILABLE TO "ANY
EMPLOYEE." 

TO ARGUE, AS THE MAJORITY DOES, THAT HAD CONGRESS INTENDED TO
INCLUDE MANAGERIAL EMPLOYEES, IT WOULD HAVE SAID SO EXPRESSLY, IGNORES
THE FACT THAT THE ACT COVERS "ANY EMPLOYEE" AND THAT THE BURDEN
PROPERLY FALLS ON THOSE WHO WOULD EXCLUDE MANAGERIAL EMPLOYEES TO
DEMONSTRATE THAT IT WAS THE INTENT OF CONGRESS TO EXCLUDE THIS CATEGORY
WHEN IT LEGISLATED DIRECTLY TO EXCLUDE SUPERVISORY EMPLOYEES. 

NORTON J. COME ARGUED THE CAUSE FOR PETITIONER, WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, PETER G. NASH, JOHN S. IRVING,
PATRICK HARDIN, AND LINDA SHER. 

RICHARD E. MOOT ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
/1/ 

/1/  JOHN FILLION, STEPHEN SCHLOSSBERG, ABE F. LEVY, VICTOR VAN
BOURG, CHARLES K. HACKLER, AND JACK LEVINE FILED A BRIEF FOR THE
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA AS AMICUS CURIAE URGING REVERSAL. 

MILTON SMITH, GERARD C. SMETANA, AND JERRY KRONENBERG FILED A BRIEF
FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICUS CURIAE. 
..END :







DEFUNIS V. ODEGAARD, 416 U.S. 312 


       DEFUNIS ET AL. V. ODEGAARD ET AL.,

        CERTIORARI TO THE SUPREME COURT OF WASHINGTON

        NO. 73 - 235.  ARGUED FEBRUARY 26, 1974--DECIDED APRIL 23,

  1974; 85 WASH. 2D 11, 507 P. 2D 1169, VACATED AND

  REMANDED. 


    AFTER BEING DENIED ADMISSION TO A STATE-OPERATED LAW SCHOOL,

  PETITIONER BROUGHT THIS SUIT ON BEHALF OF HIMSELF ALONE FOR

  INJUNCTIVE RELIEF, CLAIMING THAT THE SCHOOLD'S ADMISSIONS POLICY

  RACIALLY DISCRIMINATED AGAINST HIM IN VIOLATION OF THE EQUAL

  PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THE TRIAL COURT

  AGREED AND ORDERED THE SCHOOL TO ADMIT HIM IN THE FALL OF 1971. 

  THE WASHINGTON SUPREME COURT REVERSED, HOLDING THAT THE SCHOOL'S

  ADMISSIONS POLICY WAS NOT UNCONSTITUTIONAL.  MR. JUSTICE DOUGLAS,

  AS CIRCUIT JUSTICE, STAYED THAT JUDGMENT PENDING THIS COURT'S

  FINAL DISPOSITION OF THE CASE, WITH THE RESULT THAT PETITIONER

  WAS IN HIS FINAL SCHOOL YEAR WHEN THIS COURT CONSIDERED HIS

  PETITION FOR CERTIORARI.  AFTER ORAL ARGUMENT, THE COURT WAS

  INFORMED THAT ASSURED THE COURT THAT THIS REGISTRATION IS FULLY

  EFFECTIVE REGARDLESS OF THE ULTIMATE DISPOSITION OF THE CASE. 

  HELD: BECAUSE PETITIONER WILL COMPLETE LAW SCHOOL AT THE END OF

  THE TERM FOR WHICH HE HAS REGISTERED REGARDLESS OF ANY DECISION

  THIS COURT MIGHT REACH ON THE MERITS, THE COURT CANNOT,

  CONSISTENTLY WITH THE LIMITATIONS OF ART. III OF THE

  CONSTITUTION, CONSIDER THE SUBSTANTIVE CONSTITUTIONAL ISSUES, AND

THE CASE IS MOOT. 

     (A) MOOTNESS HERE DOES NOT DEPEND UPON A "VOLUNTARY CESSATION"

  OF THE SCHOOL'S ADMISSIONS PRACTICES BUT UPON THE SIMPLE FACT

  THAT PETITIONER IS IN HIS FINAL TERM, AND THE SCHOOL'S FIXED

  POLICY TO PERMIT HIM TO COMPLETE THE TERM. 

     (B) THE CASE PRESENTS NO QUESTION THAT IS "CAPABLE OF

  REPETITION, YET EVADING REVIEW," SINCE PETITIONER WILL NEVER

  AGAIN HAVE TO GO THROUGH THE SCHOOL'S ADMISSIONS PROCESS, AND

  SINCE IT DOES NOT FOLLOW THAT THE ISSUE PETITIONER RAISES WILL IN

  THE FUTURE EVADE REVIEW MERELY BECAUSE THIS CASE DID NOT REACH

 THE COURT UNTIL THE EVE OF PETITIONER'S GRADUATION. 

PER CURIAM. 

IN 1971 THE PETITIONER MARCO DEFUNIS, JR.,  /1/  APPLIED FOR
ADMISSION AS A FIRST-YEAR STUDENT AT THE UNIVERSITY OF WASHINGTON LAW
SCHOOL, A STATE-OPERATED INSTITUTION.  THE SIZE OF THE INCOMING FIRST
YEAR CLASS WAS TO BE LIMITED TO 150 PERSONS, AND THE LAW SCHOOL
RECEIVED SOME 1,600 APPLICATIONS FOR THESE 150 PLACES.  DEFUNIS WAS
EVENTUALLY NOTIFIED THAT HE HAD BEEN DENIED ADMISSION.  HE THEREUPON
COMMENCED THIS SUIT IN A WASHINGTON TRIAL COURT, CONTENDING THAT THE
PROCEDURES AND CRITERIA EMPLOYED BY THE LAW SCHOOLD ADMISSIONS
COMMITTEE INVIDIOUSLY DISCRIMINATED AGAINST HIM ON ACCOUNT OF HIS RACE
IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION. 

DEFUNIS BROUGHT THE SUIT ON BEHALF OF HIMSELF ALONE, AND NOT AS THE
REPRESENTATIVE OF ANY CLASS, AGAINST THE VARIOUS RESPONDENTS, WHO ARE
OFFICERS, FACULTY MEMBERS AND MEMBERS OF THE BOARD OF REGENTS OF THE
UNIVERSITY OF WASHINGTON.  HE ASKED THE TRIAL COURT TO ISSUE A
MANDATORY INJUNCTION COMMANDING THE RESPONDENTS TO ADMIT HIM AS A
MEMBER OF THE FIRST-YEAR CLASS ENTERING IN SEPTEMBER 1971, ON THE
GROUND THAT THE LAW SCHOOL ADMISSIONS POLICY HAD RESULTED IN THE
UNCONSTITUTIONAL DENIAL OF HIS APPLICATION FOR ADMISSION.  THE TRIAL
COURT AGREED WITH HIS CALIM AND GRANTED THE REQUESTED RELIEF.  DEFUNIS
WAS, ACCORDINGY, ADMITTED TO THE LAW SCHOOL AND BEGAN HIS LEGAL STUDIES
THERE IN THE FALL OF 1971.  ON APPEAL, THE WASHINGTON SUPREME COURT
REVERSED THE JUDGMENT OF THE TRIAL COURT AND HELD THAT THE LAW SCHOOL
ADMISSIONS POLICY DID NOT VIOLATE THE CONSTITUTION.  BY THIS TIME
DEFUNIS WAS IN HIS SECOND YEAR AT THE LAW SCHOOL. 

HE THEN PETITIONED THIS COURT FOR A WRIT OF CERTIORARI, AND MR.
JUSTICE DOUGLAS, AS CIRCUIT JUSTICE, STAYED THE JUDGMENT OF THE
WASHINGTON SUPREME COURT PENDING THE "FINAL DISPOSITION OF THE CASE BY
THIS COURT."  BY VIRTUE OF THIS STAY, DEFUNIS HAS REMAINED IN LAW
SCHOOL, AND WAS IN THE FIRST TERM OF HIS THIRD AND FINAL YEAR WHEN THIS
COURT FIRST CONSIDERED HIS CERTIORARI PETITION IN THE FALL OF 1973. 
BECAUSE OF OUR CONCERN THAT DEFUNIS'  THIRD-YEAR STANDING IN THE LAW
SCHOOL MIGHT HAVE RENDERED THIS CASE MOOT, WE REQUESTED THE PARTIES TO
BRIEF THE QUESTION OF MOOTNESS BEFORE WE ACTED ON THE PETITION.  IN
RESPONSE, BOTH SIDES CONTENDED THAT THE CASE WAS NOT MOOT.  THE
RESPONDENTS INICATED THAT, IF THE DECISION OF THE WASHINGTON SUPREME
COURT WERE PERMITTED TO STAND, THE PETITIONER COULD COMPLETE THE TERM
FOR WHICH HE WAS THEN ENROLLED BUT WOULD HAVE TO APPLY TO THE FACULTY
FOR PERMISSION TO CONTINUE IN THE SCHOOL BEFORE HE COULD REGISTER FOR
ANOTHER TERM.  /2/ 

WE GRANTED THE PETITION FOR CERTIORARI ON NOVEMBER 19, 1973.  414
U.S. 1038.  THE CASE WAS IN DUE COURSE ORALLY ARGUED ON FEGRUARY 26,
1974. 

IN RESPONSE TO QUESTIONS RAISED FROM THE BENCH DURING THE ORAL
ARGUMENT, COUNSEL FOR THE PETITIONER HAS INFORMED THE COURT THAT
DEFUNIS HAS NOW REGISTERED "FOR HIS FINAL QUARTER IN LAW SCHOOL. 
COUNSEL FOR THE RESPONDENTS HAVE MADE CLEAR THAT THE LAW SCHOOL WILL
NOT IN ANY WAY SEEK TO ABROGATE THIS REGISTRATION.  /3/  IN LIGHT OF
DEFUNIS' RECENT REGISTRATION FOR THE LAST QUARTER OF HIS FINAL LAW
SCHOOL YEAR, AND THE LAW SCHOOL'S ASSURANCE THAT HIS REGISTRATION IS
FULLY EFFECTIVE, THE INSISTENT QUESTION AGAIN ARISES WHETHER THIS CASE
IS NOT MOOT, AND TO THAT QUESTION WE NOW TURN. 

THE STARTING POINT FOR ANALYSIS IS THE FAMILIAR PROPOSITION THAT
"FEDERAL COURTS ARE WITHOUT POWER TO DECIDE QUESTIONS THAT CANNOT
AFFECT THE RIGHTS OF LITIGANTS IN THE CASE BEFORE THE."  NORTH CAROLINA
V. RICE, 404 U.S. 244 REVIEW MOOT CASES DERIVES FROM THE REQUIREMENT OF
ARTICLE III OF THE CONSTITUTION UNDER WHICH THE EXERCISE OF JUDICIAL
POWER DEPENDS UPON THE EXISTENCE OF A CASE OR CONTROVERSY."  LINER V.
JAFCO, INC., 375 U.S. 301, 306 N.3 (1964); SEE ALSO POWELL V.
MCCORMACK, 395 U.S. 486, 496 N.7 (1969); SIBRON V. NEW YORK, 392 U.S.
40, 50 N.8 (1968).  ALTHOUGH AS A MATTER OF WASHINGTON STATE LAW IT
APPEARS THAT THIS CASE WOULD BE SAVED ROM MOOTNESS BY "THE GREAT PUBLIC
INTEREST IN THE CONTINUING ISSUES RAISED BY THIS APPEAL," 82 WASH. 2D
11, 23 N.6, 507 P. 2D 1169, 1177 N.6 (1973), THE FACT REMAINS THAT
UNDER ART. III "(EVEN IN CASES ARISING IN THE STATE COURTS, THE
QUESTIONS OF MOOTNESS IS A FEDERAL ONE WHICH A FEDERAL COURT MUST
RESOLVE BEFORE IT ASSUMES JURISDICTION."  NORTH CAROLINA V. RICE,
SUPRA, AT 246. 

THE RESPONDENTS HAVE REPRESENTED THAT, WITHOUT REGARD TO THE
ULTIMATE RESOLUTION OF THE ISSUES IN THIS CASE, DEFUNIS WILL REMAIN A
STUDENT IN THE LAW SCHOOL FOR THE DURATION OF ANY TERM IN WHICH HE HAS
ALREADY ENROLLED.  SINCE HE HAS NOW REGISTERED FOR HIS FINAL TERM, IT
IS EVIDENT THAT HE WILL BE GIVEN AN OPPORTUNITY TO COMPLETE ALL
ACADEMIC AND OTHER REQUIREMENTS FOR GRADUATION, AND, IF HE DOES SO,
WILL RECEIVE HIS DIPLOMA REGARDLESS OF ANY DECISION THIS COURT MIGHT
REACH ON THE MERITS OF THIS CASE.  IN SHORT, ALL PARTIES AGREE THAT
DEFUNIS IS NOW ENTITLED TO COMPLETE HIS LEGAL STUDIES AT THE UNIVERSITY
OF WASHINGTON AND TO RECEIVE HIS DEGREE FROM THAT INSTITUTION.  A
DETERMINATION BY THIS COURT OF THE LEGAL ISSUES TENDERED BY THE PARTIES
IS NO LONGER NECESSARY TO COMPEL THAT RESULT, AND COULD NOT SERVE TO
PREVENT IT.  DEFUNIS DID NOT CAST HIS SUIT AS A CLASS ACTION, AND THE
ONLY REMEDY HE REQUESTED WAS AN INJUNCTION COMMANDING HIS ADMISSION TO
THE LAW SCHOOL.  HE WAS NOT ONLY ACCORDED THAT REMEDY, BUT HE NOW HAS
ALSO BEEN IRREVOCABLY ADMITTED TO THE FINAL TERM OF THE FINAL YEAR OF
THE LAW SCHOOL COURSE.  THE CONTROVERSY BETWEEN THE PARTIES HAS THUS
CLEARLY CEASED TO BE "DEFINITE AND CONCRETE" AND NO LONGER "TOUCHES)
THE LEGAL RELATIONS OF PARTIES HAVING ADVERSE LEGAL INTERESTS."  AETNA
LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240 - 241 (1937). 

IT MATTERS NOT THAT THERE CIRCUMSTANCES PARTIALLY STEM FROM A POLICY
DECISION ON THE PART OF THE RESPONDENT LAW SCHOOL AUTHORITIES.  THE
RESPONDENTS, THROUGH THEIR COUNSEL, THE ATTORNEY GENERAL OF THE STATE,
HAVE PROFESSIONALLY REPRESENTED THAT IN NO EVENT WILL THE STATUS OF
DEFUNIS NOW BE AFFECTED BY ANY VIEW THIS COURT MIGHT EXPRESS ON THE
MERITS OF THIS CONTROVERSY.  AND IT HAS BEEN THE SETTLED PRACTICE OF
THE COURT, IN CONTEXTS NO LESS SIGNIFICANT, FULLY TO ACCEPT
REPRESENTATIONS SUCH AS THESE AS PARAMETERS FOR DECISION.  SEE GERENDE
V. ELECTION BOARD, 341 U.S. 56 (1951); WHITEHILL V. ELKINS, 389 U.S.
54, 57 - 58 (1967); EHLERT V. UNITED STATES, 402 U.S. 99, 107 (1971);
CF. LAW STUDENTS RESEARCH COUNCIL V. WADMOND, 401 U.S. 154, 162 - 163
(1971). 

THERE IS A LINE OF DECISIONS IN THIS COURT STANDING FOR THE
PROPOSITION THAT THE "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. W.T. GRANT CO.,
345 U.S. 629, 632 (1953); UNITED STATES V. TRANS-MISSOURI FREIGHT
ASSN., 166 U.S. 290, 308 - 310 (1897); WALLING V. HELMERICH & PAYNE,
INC., 323 U.S.37, 43 (1944); GRAY V. SANDERS, 372 U.S. 368, 376 (1963);
UNITED STATES V. PHOSPHATE EXPORT ASSN., 393 U.S 199, 202 - 203
(1968).  THESE DECISIONS AND THE DOCTRINE THEY REFLECT WOULD BE QUITE
RELEVANT IF THE QUESTION OF MOOTNESS HERE HAD ARISEN BY REASON OF A
UNILATERAL CHANGE IN THE ADMISSIONS PROCEDURES OF THE LAW SCHOOL.  FOR
IT WAS THE ADMISSIONS PROCEDURES THAT WERE THE TARGET OF THIS
LITIGATION, AND A VOLUNTARY CESSATION OF THE ADMISSIONS PRACTICES
COMPLAINED OF COULD MAKE THIS CASE MOOT ONLY IF IT COULD BE SAID WITH
ASSURANCE "THAT 'THERE IS NO REASONABLE EXPECTATION THAT THE WRONG WILL
BE REPEATED.'"  UNITED STATES V. W.T. GRANT CO., SUPRA, AT 633. 
OTHERWISE, "(THE DEFENDANT IS FREE TO RETURN TO HIS OLD WAYS,"  ID., AT
632, AND THIS FACT WOULD BE ENOUGH TO PREVENT MOOTNESS BECAUSE OF THE
"PUBLIC INTEREST IN HAVING THE LEGALITY OF THE PRACTICES SETTLED." 
IBID. BUT MOOTNESS IN THE PRESENT CASE DEPENDS NOT AT ALL UPON A
"VOLUNTARY CESSATION" OF THE ADMISSIONS PRACTICES THAT WERE THE SUBJECT
OF THIS LITIGATION.  IT DEPENDS, INSTEAD, UPON THE SIMPLE FACT THAT
DEFUNIS IS NOW IN THE FINAL QUARTER OF THE FINAL YEAR OF HIS COURSE OF
STUDY, AND THE SETTLED AND UNCHALLENGED POLICY OF THE LAW SCHOOL TO
PERMIT HIM TO COMPLETE THE TERM FOR WHICH HE IS NOW ENROLLED. 

IT MIGHT ALSO BE SUGGESTED THAT THIS CASE PRESENTS A QUESTION THAT
IS "CAPABLE OF REPETITION, YET EVADING REVIEW," SOUTHERN PACIFIC
TERMINAL CO. V. ICC, 219 U.S. 498, 515 (1911); ROE V. WADE, 410 U.S.
113, 125 (1973), AND IS THUS AMENABLE TO FEDERAL ADJUDICATION EVEN
THOUGH IT MIGHT OTHERWISE BE CONSIDERED MOOT.  BUT DEFUNIS WILL NEVER
AGAIN BE REQUIRED TO RUN THE GANTLET OF THE LAW SCHOOL'S ADMISSION
PROCESS, AND SO THE QUESTION IS CERTAINLY NOT "CAPABLE OF REPETITION"
SO FAR AS HE IS CONCERNED, /4/  THERE IS NO REASON TO SUPPOSE THAT A
SUBSEQUENT CASE ATTACKING THOSE PROCEDURES WILL NOT COME WITH RELATIVE
SPEED TO THIS COURT, NOW THAT THE SUPREME COURT OF WASHINGTON HAS
SPOKEN.  THIS CASE, THEREFORE, IN NO WAY PRESENTS THE EXCEPTIONAL
SITUATION IN WHICH THE SOUTHERN PACIFIC TERMINAL DOCTRINE MIGHT PERMIT
A DEPARTURE FROM "(THE USUAL RULE IN FEDERAL CASES.  . . THAT AN ACTUAL
CONTROVERSY MUST EXIST AT STAGES OF APPELLATE OR CERTIORARI REVIEW, AND
NOT SIMPLY AT THE DATE THE ACTION IS INITIATED."  ROE V. WADE, SUPRA,
AT 125; UNITED STATES V. MUNSINGWEAR, INC., 340 U.S. 36 (1950). 

BECAUSE THE PETITIONER WILL COMPLETE HIS LAW SCHOOL STUDIES AT THE
END OF THE TERM FOR WHICH HE HAS NOW REGISTERED REGARDLESS OF ANY
DECISION THIS COURT MIGHT REACH ON THE MERITS OF THIS LITIGATION, WE
CONCLUDE THAT THE COURT CANNOT, CONSISTENTLY WITH THE LIMITATIONS OF
ART. III OF THE CONSTITUTION, CONSIDER THE SUBSTANTIVE CONSTITUTION
ISSUES TENDERED BY THE PARTIES.  /5/  ACCORDINGLY, THE JUDGMENT OF THE
SUPREME COURT OF WASHINGTON IS VACTED, AND THE CAUSE IS REMANDED FOR
SUCH PROCEEDINGS AS BY THAT COURT MAY BE DEEMED APPROPRIATE. 

              IT IS SO ORDERED. 

/1/  ALSO INCLUDED AS PETITIONERS ARE DEFUNIS' PARENTS AND HIS WIFE
HEREAFTER, THE SINGULAR FORM "PETITIONER" IS USED. 

/2/  BY CONTRAST, IN THEIR RESPONSE TO THE PETITION FOR CERTIORARI,
THE RESPONDENTS HAD STATED THAT DEFUNIS "WILL COMPLETE HIS THIRD YEAR
(OF LAW SCHOOL) AND BE AWARDED HIS J.D. DEGREE AT THE END OF THE 1973 -
74 ACADEMIC YEAR REGARDLESS OF THE OUTCOME OF THIS APPEAL." 

/3/  IN THEIR MEMORANDUM ON THE QUESTION F MOOTNESS, COUNSEL FOR THE
RESPONDENTS UNEQUIVOCALLY STATED:  "IF MR. DEFUNIS REGISTERS FOR THE
SPRING QUARTER UNDER THE EXISTING ORDER OF THIS COURT DURING THE
REGISTRATION PERIOD FROM FEBRUARY 20, 1974, TO MARCH 1, 1974, THAT
REGISTRATION WOULD NOT BE CANCELED UNILATERALLY BY THE UNIVERSITY
REGARDLESS OF THE OUTCOME OF THIS LITIGATION." 

/4/  IN RESPONSE TO AN INQUIRY FROM THE COURT, COUNSEL FOR THE
RESPONDENTS HAS ADVISED THAT SOME CHANGES HAVE BEEN MADE IN THE
ADMISSIONS PROCEDURES "FOR THE APPLICANTS SEEKING ADMISSION TO THE
UNIVERSITY OF WASHINGTON LAW SCHOOL FOR THE ACADEMIC YEAR COMMENCING
SEPTEMBER, 1974."  THE RESPONDENTS' COUNSIL STATES, HOWEVER, THAT
"(THESE) CHANGES DO NOT AFFECT THE POLICY CHALLENGED BY THE PETITIONERS
. . . IN THAT . . . SPECIAL CONSIDERATION STILL IS GIVEN TO APPLICANTS
FROM 'CERTAIN ETHNIC GROUPS.'" 

/5/  IT IS SUGGESTED IN DISSENT THAT "(ANY NUMBER OF UNEXPECTED
EVENTS--ILLNESS, ECONOMIC NECESSITY, EVEN ACADEMIC FAILURE--MIGHT
PREVENT HIS GRADUATION AT THE END OF THE TERM."  POST, AT 348.  "BUT
SUCH SPECULATIVE CONTINGENCIES AFFORD NO BASIS FOR OUR PASSING ON THE
SUBSTANTIVE ISSUES (THE PETITIONER) WOULD HAVE US DECIDE,"  HALL V.
BEALS, 396 U.S. 45, 49 (1969), IN THE ABSENCE OF "EVIDENCE THAT THIS IS
A PROSPECT OF 'EMMEDIACY AND REALITY.'"  GOLDEN V. ZWICKLER, 394 U.S.
103, 109 (1969); MARYLAND CASUALTY CO. V. PACIFIC COAL & OIL CO., 312
U.S. 270, 273 (1941). 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH MR. JUSTICE BRENNAN THAT THIS CASE IS NOT MOOT, AND
BECAUSE OF THE SIGNIFICANCE OF THE ISSUES RAISED I THINK IT IS
IMPORTANT TO REACH THE MERITS. 

        I 

THE UNIVERSITY OF WASHINGTON LAW SCHOOL RECEIVED 1,601 APPLICATIONS
FOR ADMISSION TO ITS FIRST-YEAR CLASS BEGINNING IN SEPTEMBER 1971. 
THERE WERE SPACES AVAILABLE FOR ONLY ABOUT 150 STUDENTS, BUT IN ORDER
TO ENROLL THIS NUMBER THE SCHOOL EVENTUALLY OFFERED ADMISSION TO 275
APPLICANTS.  ALL APPLICANTS WERE PUT INTO TWO GROUPS, ONE OF WHICH WAS
CONSIDERED UNDER THE MINORITY ADMISSIONS PROGRAM.  THIRTY-SEVEN OF
THOSE OFFERED ADMISSION HAD INDICATED ON AN OPTIONAL QUESTION ON THEIR
APPLICATION THAT THEIR "DOMINANT" ETHNIC ORIGIN WAS EITHER BLACK,
CHICANO, AMERICAN INDIAN, OR FILIPINO, THE FOUR GROUPS INCLUDED IN THE
MINORITY ADMISSIONS PROGRAM.  ANSWERS TO THIS OPTIONAL QUESTION WERE
APPARENTLY THE SOLE BASIS UPON WHICH ELIGIBILITY FOR THE PROGRAM WAS
DETERMINED.  EIGHTEEN OF THESE 37 ACTUALLY ENROLLED IN THE LAW SCHOOL. 

IN GENERAL, THE ADMISSIONS PROCESS PROCEEDED AS FOLLOWS:  AN INDEX
CALLED THE PREDICTED FIRST YEAR AVERAGE (AVERAGE) WAS CALCULATED FOR
EACH APPLICANT ON THE BASIS OF A FORMULA COMBINING THE APPLICANT'S
SCORE ON THE LAW SCHOOL ADMISSION TEST (LAST) AND HIS GRADES IN HIS
LAST TWO YEARS IN COLLEGE.  /1/  ON THE BASIS OF ITS EXPERIENCE WITH
PREVIOUS YEARS' APPLICATIONS, THE ADMISSIONS COMMITTEE, CONSISTING OF
FACULTY, ADMISSION, AND STUDENTS, CONCLUDED THAT THE MOST OUTSTANDING
APPLICANTS WERE THOSE WITH AVERAGES ABOVE 77; THE HIGHEST AVERAGE OF
ANY APPLICANT WAS 81.  APPLICANTS WITH AVERAGES ABOVE 77 WERE
CONSIDERED AS THEIR APPLICATIONS ARRIVED BY RANDOM DISTRIBUTION OF
THEIR FILES TO THE MEMBERS OF THE COMMITTEE WHO WOULD READ THEM AND
REPORT THEIR RECOMMENDATIONS BACK TO THE COMMITTEE.  AS A RESULT OF THE
FIRST THREE COMMITTEE MEETINGS IN FEBRUARY, MARCH, AND APRIL 1971, 78
APPLICANTS FROM THIS GROUP WERE ADMITTED, ALTHOUGH VIRTUALLY NO OTHER
APPLICANTS WERE OFFERED ADMISSION THIS EARLY.  /2/  BY THE FINAL
CONCLUSION OF THE ADMISSIONS PROCESS IN AUGUST 1971, 147 APPLICANTS
WITH AVERAGES ABOVE 77 HAD BEEN ADMITTED, INCLUDING ALL APPLICANTS WITH
AVERAGES ABOVE 78, AND 93 OF 105 APPLICANTS WITH AVERAGES BETWEEN 77
AND 78. 

ALSO BEGINNING EARLY IN THE ADMISSIONS PROCESS WAS THE CULLING OUT OF
APPLICANTS WITH AVERAGES BELOW 74.5.  THESE WERE REVIEWED BY THE
CHAIRMAN OF THE ADMISSIONS COMMITTEE, WHO HAD THE AUTHORITY TO REJECT
THEM SUMMARILY WITHOUT FURTHER CONSIDERATION BY THE REST OF THE
COMMITTEE.  A SMALL NUMBER OF THESE APPLICATIONS WERE SAVED BY THE
CHAIRMAN FOR COMMITTEE CONSIDERATION ON THE BASIS OF INFORMATION IN THE
FILE INDICATING GREATER PROMISE THAN SUGGESTED BY THE AVERAGE.  FINALLY
DURING THE EARLY MONTHS THE COMMITTEE ACCUMLATED THE APPLICATIONS OF
THOSE WITH AVERAGES BETWEEN 74.5 AND 77 TO BE CONSIDERED AT A LATER
TIME WHEN MOST OF THE APPLICATIONS HAS BEEN RECEIVED AND THUS COULD BE
COMPARED WITH ONE ANOTHER.  SINCE DEFUNIS' AVERAGE WAS 76.23, HE WAS IN
THIS MIDDLE GROUP. 

BEGINNING IN THEIR MAY MEETING THE COMMITTEE CONSIDERED THIS MIDDLE
GROUP OF APPLICANTS, WHOSE FOLDERS HAS BEEN RANDOMLY DISTRIBUTED TO
COMMITTEE MEMBERS FOR THEIR RECOMMENDATIONS TO THE COMMITTEE.  ALSO
CONSIDERED AT THIS TIME WERE REMAINING APPLICANTS WITH AVERAGES BELOW
74.5 WHO HAD NOT BEEN SUMMARILY REJECTED, AND SOME OF THOSE WITH
AVERAGES ABOVE 77 WHO HAD NOT BEEN SUMMARILY ADMITTED, BUT INSTEAD HELD
FOR FUTHER CONSIDERATION.  EACH COMMITTEE MEMBER WOULD CONSIDER THE
APPLICATIONS COMPETITIVELY, FOLLOWING ROUGH GUIDELINES AS TO THE
PROPORTION WHO COULD BE OFFERED ADMISSION.  AFTER THE COMMITTEE HAD
EXTENDED OFFERS OF ADMISSION TO SOMEWHAT OVER 200 APPLICANTS, A WAITING
LIST WAS CONSTRUCTED IN THE SAME FASHION, AND WAS DIVIDED INTO FOUR
GROUPS RANKED BY THE COMMITTEE'S ASSESSMENT OF THEIR APPLICATIONS. 
DEFUNIS WAS ON THIS WAITING LIST, BUT WAS RANKED IN THE LOWEST
QUARTER.  HE WAS ULTIMATELY TOLD IN AUGUST 1971 THAT THERE WOULD BE NO
ROOM FOR HIM. 

APPLICANTS WHO HAD INDICATED ON THEIR APPLICATION FORMS THAT THEY
WERE EITHER BLACK, CHICANO, AMERICAN INDIA, OR FILIPINO WERE TREATED
DIFFERENTLY IN SEVERAL RESPECTS.  WHATEVER THEIR AVERAGES, NONE WERE
GIVEN TO THE COMMITTEE CHAIRMAN FOR CONSIDERATION OF SUMMARY REJECTION,
NOR WERE THEY DISTRIBUTED RANDOMLY AMONG COMMITTEE MEMBERS FOR
CONSIDERATION ALONG WITH THE OTHER APPLICATIONS.  INSTEAD, ALL
APPLICATIONS OF BLACK STUDENTS WERE ASSIGNED SEPARATELY TO TWO
PARTICULAR COMMITTEE MEMBERS: A FIRST-YEAR BLACK LAW STUDENT ON THE
COMMITTEE, AND A PROFESSOR ON THE COMMITTE WHO HAD WORKED THE PREVIOUS
SUMMER IN A SPECIAL PROGRAM FOR DISADVANTAGED COLLEGE STUDENTS
CONSIDERING APPLICATION TO LAW SCHOOL.  /3/  APPLICATIONS FROM AMONG
THE OTHER THREE MINORITY GROUPS WERE ASSIGNED TO AN ASSISTANT DEAN WHO
WAS ON THE COMMITTEE.  THE MINORITY APPLICATIONS, WHILE CONSIDERED
COMPETITIVELY WITH ONE ANOTHER, WERE NEVER DIRECTLY COMPARED TO THE
REMAINING APPLICATIONS, EITHER BY THE SUBCOMMITTEE OR BY THE FULL
COMMITTEE.  AS IN THE ADMISSIONS PROCESS GENERALLY, THE COMMITTEE
SOUGHT TO FIND "WITHIN THE MINORITY CATEGORY, THOSE PERSONS WHO WE
THOUGHT HAD THE HIGHEST PROBABILITY OF SUCCEEDING IN LAW SCHOOL."  /4/
IN REVIEWING THE MINORITY APPLICATIONS, THE COMMITTEE ATTACHED LESS
WEIGHT TO THE AVERAGE "IN MAKING A TOTAL JUDGMENTAL EVALUATION AS TO
THE RELATIVE ABILITY OF THE PARTICULAR APPLICANT TO SUCCEED IN LAW
SCHOOL."  82 WASH. 2D 11, 21, 507 P. 2D 1169, 1175.  IN ITS PUBLICLY
DISTRIBUTED FUIDE TO APPLICANTS, THE COMMITTEE EXPLAINED THAT "(AN
APPLICANT'S RACIAL OR ETHNIC BACKGOUUD WAS CONSIDERED AS ONE FACTOR IN
OUR GENERAL ATTEMPT TO CONVERT FORMAL CREDENTIALS INTO REALISTIC
PREDICTIONS."  /5/ 

THIRTY-SEVEN MINORITY APPLICANTS WERE ADMITTED UNDER THIS
PROCEDURE.  OF THESE, 36 HAD AVERAGES BELOW DEFUNIS'  76.23, AND 30 HAD
AVERAGES BELOW 74.5, AND THUS WOULD ORDINARILY HAVE BEEN SUMMARILY
REJECTED BY THE CHAIRMAN.  THERE WERE ALSO 48 NONMINORITY APPLICANTS
ADMITTED WHO HAD AVERAGES BELOW DEFUNIS.  TWENTY-THREE OF THESE WERE
RETURNING VETERANS, SEE N.2, SUPRA, AND 25 OTHERS PRESUMABLY ADMITTED
BECAUSE OF OTHER FACTORS IN THEIR APPLICATIONS MAKING THEM ATTRACTIVE
CANDIDATES DESPITE THEIR RELATIVELY LOW AVERAGES. 

IT IS REASONABLE TO CONCLUDE FROM THE ABOVE FACTS THAT WHILE OTHER
FACTORS WERE CONSIDERED BY THE COMMITTEE, AND WERE ON OCCASION CRUCIAL,
THE AVERAGE WAS FOR MOST APPLICANTS A HEAVILY WEIGHTED FACTOR, AND WAS
AT THE EXTREMES VIRTUALLY DISPOSITIVE.  /6/  A DIFFERENT BALANCE WAS
APPARENTLY STRUCK, HOWEVER, WITH REGARD TO THE MINORITY APPLICANTS. 
INDEED, AT ORAL ARGUMENT, THE LAW SCHOOL ADVISED US THAT WERE THE
MINORITY APPLICANTS CONSIDERED UNDER THE SAME PROCEDURE AS WAS
GENERALLY USED, NONE OF THOSE WHO EVENTUALLY ENROLLED AT THE LAW SCHOOL
WOULD HAVE BEEN ADMITTED. 

THE EDUCATIONAL POLICY CHOICES CONFRONTING A UNIVERSITY ADMISSIONS
COMMITTEE ARE NOT ORDINARILY A SUBJECT FOR JUDICIAL OVERSIGHT; CLEARLY
IT IS NOT FOR US BUT FOR THE LAW SCHOOL TO DECIDE WHICH TESTS TO
EMPLOY, HOW HEAVILY TO WEIGH RECOMMENDATIONS FROM PROFESSIORS OR
UNDERGRADUATE GRANDES, AND WHAT LEVEL OF ACHIEVEMENT ON THE CHOSEN
CRITERIA ARE SUFFICIENT TO DEMONSTRATE THAT THE CANDIDATE IS QUALIFIED
FOR ADMISSION.  WHAT PLACES THIS CASE IN A SPECIAL CATEGORY IS THE FACT
THAT THE SCHOOL DID NOT CHOOSE ONE SET OF CRITERIA BUT TWO, AND THEN
DETERMINED WHICH TO APPLY TO A GIVEN APPLICANT ON THE BASIS OF HIS
RACE.  THE COMMITTEE ADOPTED THIS POLICY IN ORDER TO ACHIEVE "A
REASONABLE REPRESENTATION" OF MINORITY GROUPS IN THE LAW SCHOOL.  82
WASH. 2D, AT 20, 507 P. 2D, AT 1175.  ALTHOUGH IT MAY BE SPECULATED
THAT THE COMMITTEE SOUGHT TO RECTIFY WHAT IT PERCEIVED TO BE CULTURAL
OR RACIAL BIASES IN THE LSAT OR IN THE CANDIDATES' UNDERGRADUATE
RECORDS, THE RECORD IN THIS CASE IS DEVOID OF ANY EVIDENCE OF SUCH
BIAS, AND THE SCHOOL HAS NOT SOUGHT TO JUSTIFY ITS PROCEDURES ON THIS
BASIS. 

ALTHOUGH TESTIFYING THAT "(WE SO NOT HAVE A QUOTA . . ."  THE LAW
SCHOOL DEAN EXPLAINED THAT "(WE WANT A REASONABLE REPRESENTATION.  WE
WILL GO DOWN TO REACH IT IF WE CAN," WITHOUT TAKING PEOPLE WHO ARE
UNQUALIFIED IN AN ABSOLUTE SENSE.  . . ."  (STATEMENT OF FACTS 420.) 
BY "UNQUALIFIED IN AN ABSOLUTE SENSE" THE DEAN MEANT CANDIDATES WHO
"HAVE NO REASONABLE PROBABLE LIKELIHOOD OF HAVING A CHANCE OF
SUCCEEDING IN THE STUDY OF LAW . . ."  (IBID.) BUT THE DEAN CONCEDED
THAT IN "REACHING," THE VIEWED AS A GROUP, HAVE A LESS SUCH LIKELIHOOD
THAN THE MAJORITY STUDENT GROUP TAKEN AS A WHOLE."  (ID., AT 423.) 

"Q. OF THOSE WHO HAVE MADE APPLICATION TO GO TO THE LAW SCHOOL, I AN
SAYING YOU ARE NOT TAKING THE BEST QUALIFIED? 

     "A.  IN TOTAL? 

     "Q.  IN TOTAL. 

     "A.  IN USING THAT DEFINITION, YES."  (ID., AT 423 - 424.) 

IT THUS APPEARS THAT BY THE COMMITTEE'S OWN ASSESSMENT, IT ADMITTED
MINORITY STUDENTS WHO, BY THE TESTS GIVEN, SEEMED LESS QUALIFIED THAN
SOME WHITE STUDENTS WHO WERE NOT ACCEPTED, IN ORDER TO ACHIEVE A
"REASONABLE REPRESENTATION."  IN THIS REGARD IT MAY BE POINTED OUT THAT
FOR THE YEAR 1969 - 1970--THE YEAR BEFORE THE CLASS TO WHICH DEFUNIS
WAS SEEKING ADMISSION--THE LAW SCHOOL REPORTED AN ENROLLMENT OF EIGHT
BLACK STUDENTS OUT OF A TOTAL OF 356.  /7/  (DEFENDANTS' EX. 7.)  THAT
PERCENTAGE, APPROXIMATELY 2.2%, COMPARES TO A PERCENTAGE OF BLACKS IN
THE POPULATION OF WASHINGTON OF APPROXIMATELY 2.1%.  /8/

        II 

THERE WAS A TIME WHEN LAW SCHOOLS COULD FOLLOW THE ADVICE OF
WIGMORE, WHO BELIEVED THAT "THE WAY TO FIND OUT WHETHER A BOY HAS THE
MAKINGS OF A COMPETENT LAWYER IS TO SEE WHAT HE CAN DO IN A FIRST YEAR
OF LAW STUDIES."  WIGMORE, JURISTIC PSYCHOPOYEMETROLOGY--OR, HOW TO
FIND OUT WHETHER A BOY HAS THE MAKINGS OF A LAWYER, 24 III.  L. REV.
454, 463 - 464 (1929).  IN THOSE DAYS THERE WERE ENOUGH SPACES TO ADMIT
EVERY APPLICANT WHO MET MINIMAL CREDENTIALS, AND THEY ALL COULD BE
GIVEN THE OPPORTUNITY TO PROVE THEMSELVES AT LAW SCHOOL.  BUT BY THE
1920'S MANY LAW SCHOOLS FOUND THAT THEY COULD NOT ADMIT ALL MINIMALLY
QUALIFIED APPLICANTS, AND SOME SELECTION PROCESS BEGAN.  /9/  THE
PRESSURE TO USE SOME KIND OF ADMISSIONS TEST MOUNTED, AND A NUMBER OF
SCHOOLS INSTITUTED THEM.  ONE EARLY PRECURSOR TO THE MODERN DAY LSAT
WAS THE FERSON-STODDARD LAW APTITUDE EXAMINATION.  WIGMORE CONDUCTED
HIS OWN STUDY OF THAT TEST WITH 50 STUDENT VOLUNTEERS, AND CONCLUDED
THAT IT "HAD NO SUBSTANTIAL PRACTICAL VALUE."  ID., AT 463.  BUT HIS
CONCLUSIONS WERE NOT ACCEPTED, AND THE HARRIED LAW SCHOOLS STILL SOUGHT
SOME KIND OF ADMISSIONS TEST WHICH WOULD SIMPLIFY THE PROCESS OF
JUDGING APPLICANTS, AND IN 1948 THE LSAT WAS BORN.  IT HAS BEEN WITH US
EVER SINCE.  /10/ 

THE TEST PURPORTS TO PREDICT HOW SUCCESSFUL THE APPLICANT WILL BE IN
HIS FIRST YEAR OF LAW SCHOOL, AND CONSISTS OF A FEW HOURS' WORTH OF
MULTIPLE-CHOICE QUESTIONS.  BUT THE ANSWERS THE STUDENT CAN GIVE TO A
MULTIPLE-CHOICE QUESTION ARE LIMITED BY THE CREATIVITY AND INTELLIGENCE
OF THE TEST-MAKER; THE STUDENT WITH A BETTER OR MORE ORIGINAL
UNDERSTANDING OF THE PROBLEM THAN THE TEST-MAKER MAY REALIZE THAT NONE
OF THE ALTERNATIVE ANSWERS ARE ANY GOOD, BUT THERE IS NO WAY FOR HIM TO
DEMONSTRATE HIS UNDERSTANDING.  "IT IS OBVIOUS FROM THE NATURE OF THE
TESTS THAT THEY DO NOT GIVE THE CANDIDATE A SIGNIFICANT OPPORTUNITY TO
EXPRESS HIMSELF.  IF HE IS SUBTLE IN HIS CHOICE OF ANSWERS IT WILL GO
AGAINST HIM; AND YET THERE IS NO OTHER WAY FOR HIM TO SHOW ANY
INDIVIDUALITY.  IF HE IS STRONG-MINDED, NONCONFORMIST, UNUSUAL,
ORIGINAL, OR CREATIVE--AS SO MANY OF THE TRULY IMPORTANT PEOPLE ARE--HE
MUST STRIFLE HIS IMPULSES AND CONFORM AS BEST HE CAN TO THE NORMS THAT
THE MULTIPLE-CHOICE TESTERS SET UP IN THEIR UNIMAGINATIVE, SCIENTIFIC
WAY.  THE MORE PROFOUNDLY GIFTED THE CANDIDATE IS, THE MORE HIS
RESENTMENT WILL RISE AGAINST THE MENTAL STRAIT JACKET INTO WHICH THE
TESTERS WOULD FORCE HIS MIND."  B. HOFFMANN, THE TYRANNY OF TESTING 91
92 (1962). 

THOSE WHO MAKE THE TESTS AND THE LAW SCHOOLS WHICH USE THEM POINT,
OF COURSE, TO THE HIGH CORRELATIONS BETWEEN THE TEST SCORES AND THE
GRADES AT LAW SCHOOL THE FIRST YEAR.  E.G., WINTERBOTTOM, COMMENTS ON
"A STUDY OF THE CRITERIA FOR LEGAL EDUCATION AND ADMISSION TO THE BAR,"
AN ARTICLE BY DR. THOMAS M. GOOLSBY, JR., 21 J. LEGAL ED. 75 (1968). 
CERTAINLY THE TESTS DO SEEM TO DO BETTER THAN CHANCE.  BUT THEY DO NOT
HAVE THE VALUE THAT THEIR DECEPTIVELY PRECISE SCORING SYSTEM SUGGESTS. 
THE PROPONENTS' OWN DATA SHOW THAT, FOR EXAMPLE, MOST OF THOSE SCORING
IN THE BOTTOM 20% ON THE TEST DO BETTER THAN THAT IN LAW SCHOOL--INDEED
SIX OF EVERY 100 OF THEM WILL BE IN THE TOP 20% OF THEIR LAW SCHOOL
CLASS.  ID., AT 79.  AND NO ONE KNOWS HOW MANY OF THOSE WHO WERE NOT
ADMITTED BECAUSE OF THEIR TEST SCORES WOULD IN FACT HAVE DONE WILL WERE
THEY GIVEN THE CHANCE.  THERE ARE MANY RELEVANT FACTORS, SUCH AS
MOTIVATION, CULTURAL BACKGROUNDS OF SPECIFIC MINORITIES THAT THE TEST
CANNOT MEASURE, AND THEY INEVITABLY MUST IMPAIR ITS VALUE AS A
PREDICTOR.  /11/  OF COURSE, THE LAW SCHOOL THAT ADMITS ONLY THOSE WITH
THE HIGHEST TEST SCORES FINDS THAT ON THE AVERAGE THEY DO MUCH BETTER,
AND THUS THE TEST IS A CONVENIENT TOOL FOR THE ADMISSIONS COMMITTEE. 
THE PRICE IS PAID BY THE ABLE STUDENT WHO FOR UNKOWN REASONS DID NOT
ACHIEVE THAT HIGH SCORE--PERHAPS EVEN THE MINORITY WITH A DIFFERENT
CULTURAL BACKGROUND.  SOME TESTS, AT LEAST IN THE PAST, HAVE BEEN AIMED
AT ELIMINATING JEWS. 

THE SCHOOL CAN SAFELY CONCLUDE THAT THE APPLICANT WITH A SCORE OF
750 SHOULD BE ADMITTED BEFORE ONE WITH A SCORE OF 500.  THE PROBLEM IS
THAT IN MANY CASES THE COICE WILL BE BETWEEN 643 AND 602 OR 574 AND
528.  THE NUMBERS CREATE AN ILLUSION OF DIFFERENCE TENDING TO OVERWHELM
OTHER FACTORS.  "THE WISER TESTERS ARE WELL AWARE OF THE DEFECTS OF THE
MULTIPLE-CHOICE FORMAT AND THE DANGER OF PLACING RELIANCE ON ANY ONE
METHOD OF ASSESSMENT TO THE EXCLUSION OF ALL OTHERS.  WHAT IS
DISTRESSING IS HOW LITTLE THEIR CAVEATS HAVE IMPRESSED THE PEOPLE WHO
SUCCEMB TO THE PROPAGANDA OF THE TEST-MAKERS AND USE THESE TESTS
MECHANICALLY AS THOUGH THEY WERE A VALID SUBSTITUTE FOR JUDGMENT." 
HOFFMANN, SUPRA, AT 215. 

OF COURSE, THE TESTS ARE NOT THE ONLY THING CONSIDERED; HERE THEY
WERE COMBINED WITH THE PRELAW GRADES TO PRODUCE A NEW NUMBER CALLED THE
AVERAGE.  THE GRADES HAVE THEIR OWN PROBLEMS; ONE SCHOOL'S A IS ANOTHER
SCHOOL'S C. AND EVEN TO THE EXTENT THAT THIS FORMULA PREDICTS LAW
SCHOOLD GRADES, ITS VALUE IS LIMITED.  THE LAW STUDENT WITH LOWER
GRADES MAY IN THE LONG PULL OF A LEGAL CAREER SURPASS THOSE AT THE TOP
OF THE CLASS.  "(LAW SCHOOL ADMISSIONS CRITERIA HAVE OPERATED WITHIN A
HERMITICALLY SEALED SYSTEM; IT IS NOW BEGINNING TO LEAK.  THE
TRADITIONAL COMBINATION OF LSAT AND GPA (UNDERGRADUATE GRADE POINT
AVERAGE) MAY HAVE PROVIDED ACCEPTABLE PREDICTORS OF LIKELY PERFORMANCE
IN LAW SCHOOL IN THE PAST . . . . (BUT) (THERE IS NO CLEAR EVIDENCE
THAT THE LSAT AND GPA PROVIDE PARTICULARLY GOOD EVALUATORS OF THE
INTRINSIC OR ENRICHED ABILITY OF AN INDIVIDUAL TO PERFORM AS A LAW
STUDENT OR LAWYER IN A FUNCTIONING SOCIETY UNDERGOING CHANGE.  NOR IS
THERE ANY CLEAR EVIDENCE THAT GRADES AND OTHER EVALUATORS OF LAW SCHOOL
PERFORMANCE, AND THE BAR EXAMINATION, ARE PARTICULARLY GOOD PREDICATORS
OF COMPETINCE OR SUCCESS AS A LAWYER."  ROSEN, EQUALIZING ACCESS TO
LEGAL EDUCATION: SPECIAL PROGRAMS FOR LAW STUDENTS WHO ARE NOT
ADMISSIBLE BY TRADITIONAL CRITERIA, 1970 U. TOL.  L. REV. 321, 332 -
333.     BUT, BY WHATEVER TECHNIQUES, THE LAW SCHOOL MUST MAKE
CHOICES.  NEITHER PARTY HAS CHALLENGED THE VALIDITY OF THE AVERAGE
EMPLOYED HERE AS AN ADMISSIONS TOOL, AND THEREFORE CONSIDERATION OF ITS
POSSIBLE DEFICIENCIES IS NOT PRESENTED AS AN ISSUE.  THE LAW SCHOOL
PRESENTED NO EVIDENCE TO SHOW THAT ADJUSTMENTS IN THE PROCESS EMPLOYED
WERE USED IN ORDER VALIDLY TO COMPARE APPLICANTS OF DIFFERENT RACES;
INSTEAD, IT CHOSE TO AVOID MAKING SUCH COMPARISONS.  FINALLY, ALTHOUGH
THE COMMITTEE DID SONSIDER OTHER INFORMATION IN THE FILES OF ALL
APPLICANTS, THE LAW SCHOOL HAS MADE NO EFFORT TO SHOW THAT IT WAS
BECAUSE OF THESE ADDITIONAL FACTORS THAT IT ADMITTED MINORITY
APPLICANTS WHO WOULD OTHERWISE HAVE BEEN REJECTED.  TO THE CONTRARY,
THE SCHOOL APPEARS TO HAVE CONCEDED THAT BY ITS OWN ASSESSMENT--TAKING
ALL FACTORS INTO ACCOUNT--IT ADMITTED MINORITY APPLICANTS WHO WOULD
HAVE BEEN REJECTED HAD THEY BEEN WHITE.  WE HAVE NO CHOICE BUT TO
EVALUATE THE LAW SCHOOL'S CASE AS IT HAS BEEN MADE. 

III 

THE EQUAL PROTECTION CLAUSE DID NOT ENACT A REQUIREMENT THAT LAW
SCHOOLS EMPLOY AS THE SOLE CRITERION FOR ADMISSIONS A FORMULA BASED
UPON THE LSAT AND UNDERGRADUATE GRADES, NOR DOES IT PROHIBIT LAW
SCHOOLS FROM EVALUATING AN APPLICNAT'S PRIOR ACHIEVEMENTS IN LIGHT OF
THE BARRIERS THAT HE HAD TO OVERCOME.  A BLACK APPLICANT WHO PULLED
HIMSELF OUT OF THE GHETTO INTO A JUNIOR COLLEGE MAY THEREBY DEMONSTRATE
A LEVEL OF MOTIVATION, PERSERVERANCE AND ABILITY THAT WOULD LEAD A
FAIRMINDED ADMISSIONS COMMITTEE TO CONCLUDE THAT HE SHOWS MORE PROMISE
FOR LAW STUDY THAN THE SOM OF A RICH ALUMNUS WHO ACHIEVED BETTER GRADES
AT HARVARD.  THAT APPLICANT WOULD NOT BE OFFERED ADMISSION BECAUSE HE
IS BLACK, BUT BECURSE AS AN INDIVIDUAL HE HAS SHOWN HE HAS THE
POTENTIAL, WHILE THE HARVARD MAN MAY HAVE TAKEN LESS ADVANTAGE OF THE
VASTLY SUPERIOR OPPORTUNITIES OFFERED HIM.  BECAUSE OF THE WEIGHT OF
THE PRIOR HANDICAPS, THAT BLACK APPLICANT MAY NOT REALIZE HIS FULL
POTENTIAL IN THE FIRST YEAR OF LAW SCHOOL, OR EVEN IN THE FULL THREE
YEARS, BUT IN THE LONG PULL OF A LEGAL CAREER HIS ACHIEVEMENTS MAY FAR
OUTSTRIP THOSE OF HIS CLASSMATES WHOSE EARLIER RECORDS APPEARED
SUPERIOR BY CONVENTIONAL CRITERIA.  THERE IS CURRENTLY NO TEST
AVAILABLE TO THE ADMISSIONS COMMITTEE THAT CAN PREDICT SUCH
POSSIBILITIES WITH ASSURANCE, BUT THE COMMITTEE MAY NEVERTHELESS SEEK
TO GUAGE IT AS BEST IT CAN, AND WEIGH THIS FACTOR IN ITS DECISIONS. 
SUCH A POLICY WOULD NOT BE LIMITED TO BLACKS, OR CHICANOS OR FILIPINOS,
OR AMERICAN INDIANS, ALTHOUGH UNDOUBTEDLY GROUPS SUCH AS THESE MAY IN
PRACTICE BE THE PRINCIPAL BENEFICIARIES OF IT.  BUT A POOR APPALACHIAN
WHITE, OR A SECOND GENERATION CHINESE IN SAN FRANCISCO, OR SOME OTHER
AMERICAN WHOSE LINEAGE IS SO DIVERSE AS TO DEFY ETHNIC LABELS, MAY
DEMONSTRATE SIMILAR POTENTAIL AND THUS BE ACCORDED FAVORABLE
CONSIDERATION BY THE COMMITTEE. 

THE DIFFERENCE BETWEEN SUCH A POLICY AND THE ONE PRESENTED BY THIS
CASE IS THAT THE COMMITTEE WOULD BE MAKING DECISIONS ON THE BASIS OF
INDIVIDUAL ATTRIBUTES, RATHER THAN ACCORDING A PREFERENCE SOLELY ON THE
BASIS OF RACE.  TO BE SURE, THE RACIAL PREFERENCE HERE WAS NOT ABSOLUTE
-THE COMMITTEE DID NOT ADMIT ALL APPLICANTS FROM THE FOUR FAVORED
GROUPS.  BUT IT DID ACCORD ALL SUCH APPLICANTS A PREFERENCE BY
APPLYING, TO AN EXTENT NOT PRECISELY ASCERTAINABLE FROM THE RECORD,
DIFFERENCT STANDARDS BY WHICH TO JUDGE THEIR APPLICATIONS, WITH THE
RESULT THAT THE COMMITTEE ADMITTED MINORITY APPLICANTS WHO, IN THE
SCHOOL'S OWN JUDGMENT, WERE LESS PROMISING THAT OTHER APPLICANTS WHO
WERE REJECTED.  FURTHERMORE, IT IS APPARANT THAT BECAUSE THE ADMISSIONS
COMMITTEE COMPARED MINORITY APPLICANTS ONLY WITH ONE ANOTHER, IT WAS
NECESSARY TO RESERVE SOME PROPORTION OF THE CLASS FOR THEM, EVEN IF AT
THE OUTSET A PRECISE NUMBER OF PLACES WERE NOT SET ASIDE.  /12/  THAT
PROPORTION, APPARENTLY 15% TO 20%, WAS CHOSEN BECAUSE THE SCHOOL
DETERMINED IT TO BE "REASONABLE,"  /13/  ALTHOUGH NO EXPLANATION IS
PROVIDED AS TO HOW THAT NUMBER RATHER THAN SOME OTHER WAS FOUND
APPROPRIATE.  WITHOUT BECOMING EMBROILED IN A SEMANTIC DEBATE OVER
WHETHER THIS PRACTICE CONSTITUTES A "QUOTA," IT IS CLEAR THAT, GIVEN
THE LIMITATION ON THE TOTAL NUMBER OF APPLICANTS WHO COULD BE ACCEPTED,
THIS POLICY DID REDUCE THE TOTAL NUMBER OF PLACES FOR WHICH DEFUNIS
COULD COMPETE--SOLELY ON ACCOUNT OF HIS RACE.  THUS, AS THE WASHINGTON
SUPREME COURT CONCLUDED, WHATEVER LABEL ONE WISHES TO APPLY TO IT, "THE
MINORITY ADMISSIONS POLICY IS CERTAINLY NOT BENIGN WITH RESPECT TO
NONMINORITY STUDENTS WHO ARE DISPLACED BY IT."  82 WASH. 2D, AT 32, 507
P.2D, AT 1182.  A FINDING THAT THE STATE SCHOOL EMPLOYED A RACIAL
CLASSIFICATION IN SELECTING ITS STUDENTS SUBJECTS IT TO THE STRICTEST
SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE. 

THE CONSIDERATION OF RACE AS A MEASURE OF AN APPLICANT'S
QUALIFICATION NORMALLY INTRODUCES A CAPRICIOUS AND IRRELEVANT FACTOR
WORKING AN INVIDIOUS DISCRIMINATION, ANDERSON V. MARTIN, 375 U.S. 399,
402; LOVING V. VIRGINIA, 388 U.S. 1, 10; HARPER V. VIRGINIA BOARD OF
ELECTIONS, 383 U.S.663, 668.  ONCE RACE IS A STARTING POINT EDUCATORS
AND COURTS ARE IMMEDIATELY EMBROILED IN COMPETING CLAIMS OF
DIFFERENTRACIAL AND ETHNIC GROUPS THAT WOULD MAKE DIFFICULT, MANAGEABLE
STANDARDS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE.  "THE CLEAR AND
CENTRAL PRUPOSE OF THE FOURTEENTH AMENDMENT WAS TO ELIMINATE ALL
OFFICIAL STATE SOURCES OF INVIDIOUS RACIAL DISCRIMINATION IN THE
STATES."  LIVING, SUPRA, AT 10.  THE LAW SCHOOL'S ADMISSIONS POLICY
CANNOT BE RECONCILED WITH THAT PURPOSE, UNLESS CULTURAL STANDARDS OF A
DIVERSE RATHER THAN A HOMOGENEOUS SOCIETY ARE TAKEN INTO ACCOUNT.  THE
REASON IS THAT PROFESSIONAL PERSONS, PARTICULARLY LAWYERS, ARE NOT
SELECTED FOR LIFE IN A COMPUTERIZED SOCIETY.  THE INDIAN WHO WALKS TO
THE BEAT OF CHIEF SEATTLE OF THE MUSKLESHOOT TRIBE IN WASHINGTON /14/
HAS A DIFFERENT CULTURE FROM EXAMINERS AT LAW SCHOOLS. 

THE KEY TO THE PROBLEM IS THE CONSIDERATION OF EACH APPLICATION IN A
RACIALLY NEUTRAL WAY.  SINCE LSATP REFLECTS QUESTIONS TOUCHING ON
CULTURAL BACKGROUNDS, THE ADMISSIONS COMMITTEE ACTED PROPERLY IN MY
VIEW IN SETTING MINORITY APPLICATIONS APART FOR SEPARATE PROCESSING. 
THESE MINORITIES HAVE CULTURAL BACKGROUNDS THAT ARE VASTLY DIFFERENT
FROM THE DOMINANT CAUCASICAN.  MANY ESKIMOS, AMERICAN INDIANS,
FILIPINOS, CHICANOS, ASIAN INDIANS, BURMESE, AND AFRICANS COME FROM
SUCH DISPARATE BACKGROUNDS THAT A TEST SENSITIVELY TUNED FOR MOST
APPLICANTS WOULD BE WIDE OF THE MARK FOR MANY MINORITIES. 

THE MELTING POT IS NOT DESIGNED TO HOMOGENIZE PEOPLE, MAKING THEM
UNIFROM IN CONSISTENCY.  THE MELTING POT AS I UNDERSTAND IT IS A FUGURE
OF SPEECH THAT DEPICTS THE WIDE DIVERSITIES TOLERATED BY THE FIRST
AMENDMENT UNDER ONE FLAG.  SEE 2 S. MORISON & H. COMMAGER, THE GROWTH
OF THE AMERICAN REPUBLIC, C. VIII (4TH ED. 1950).  MINORITIES IN OUR
MIDST WHO ARE TO SERVE ACTIVELY IN OUR PUBLIC AFFAIRS SHOULD BE CHOSEN
ON TALENT AND CHARACTER ALONE, NOT ON CULTURAL ORIENTATION OR
LEANINGS.  I DO KNOW, COMING AS I DO FROM INDIAN COUNTRY IN WASHINGTON,
THAT MANY OF THE YOUNG INDIANS KNOW LITTLE ABOUT ADAM SMITH OR KARL
MARX BUT ARE DEEPLY IMBUED WITH THE SPIRIT AND PHILOSOPHY OF CHIEF
ROBERT B. JIM OF THE YAKIMAS, CHIEF SEATTLE OF THE MUCKLESHOOTS, AND
CHIEF JOSEPH OF THE NEZ PERCE WHICH OFFER COMPETITIVE ATTITUDES TOWARDS
LIFE, FELLOW MAN, AND NATURE.  /15/ 

I DO NOT KNOW THE EXTENT TO WHICH BALCKS IN THIS COUNTRY ARE IMBUED
WITH IDEAS OF AFRICAN SOCIALISM.  /16/  LEOPOLD SENGHOR AND SEKOU
TOURE, MOST ARTICULATE OF AFRICAN LEADERS, HAVE HELD THAT MODERN
AFRICAN POLITICAL PHILOSOPHY IS NOT ORIENTED EITHER TO MARXISM OR TO
CAPITALISM.  /17/  HOW FAR THE REINTRODUCTION INTO EDUCATIONAL
CURRICULA OF ANCIENT AFRICAN ART AND HISTORY HAS REACHED THE MINDS OF
YOUNG AFRO-AMERICANS I DO NOT KNOW.  BUT AT LEAST AS RESPECTS INDIANS,
BLACKS, AND CHICANOS--AS WELL AS THOSE FROM ASIAN CULTURES--I THINK A
SEPARATE CLASSIFICATION OF THESE APPLICANTS IS WARRANTED, LEST RACE BE
A SUBTLE FORCE IN ELIMINATING MINORITY MEMBERS BECAUSE OF CULTURAL
DIFFERENCES. 

INSOFAR AS LSAT TESTS REFLECT THE DIMENSIONS AND ORIENTATION OF THE
ORGANIZATION MAN THEY DO A DISSERVICE TO MINORITIES.  I PERSONALLY KNOW
THAT ADMISSIONS TESTS WERE ONCE USED TO ELIMINATE JEWS.  HOW MANY OTHER
MINORITIES THEY AIM AT I DO NOT KNOW.  MY REACTION IS THAT THE PRESNECE
OF AN LSAT TEST IS SUFFICIENT WARRANT FOR A SCHOOL TO PUT RACIAL
MINORITIES INTO A SEPARATE CLASS IN ORDER BETTER TO PROBE THEIR
CAPACITIES AND POTENTIALS. 

THE MERITS OF THE PRESENT CONTROVERSY CANNOT IN MY VIEW BE RSOLVED
ON THIS RECORD.  A TRIAL WOULD INVOLVE THE DISCLOSURE OF HIDDEN
PREJUDICES, IF ANY, AGAINST CERTAIN MINORITIES AND THE MANNER IN WHICH
SUBSTITUTE MEASUREMENTS OF ONE'S TALENTS AND CHARACTER WERE EMPLOYED IN
THE CONVENTIONAL TESTS.  I COULD AGREE WITH THE MAJORITY OF THE
WASHINGTON SUPREME COURT ONLY IF, ON THE RECORD, IT COULD BE SAID THAT
THE LAW SCHOOL'S SELECTION WAS RACIALLY NEUTRAL.  THE CASE, IN MY VIEW,
SHOULD BE REMANDED FOR A NEW TRIAL TO CONSIDER, INTER ALIA, WHETHER THE
ESTABLISHED LSAT TESTS SHOULD BE ELIMINATED SO FAR AS RACIAL MINORITIES
ARE CONCERNED. 

THIS DOES NOT MEAN THAT A SEPARATE LSAT TEST MUST BE DESIGNED FOR
MINORITY RACIAL GROUPS, ALTHOUGH THAT MIGHT BE A POSSIBILITY.  THE
REASON FOR THE SEPARATE TREATMENT OF MINORITIES AS A CLASS IS TO MAKE
MORE CENTAIN THAT RACIAL FACTORS DO NOT MILITATE AGAINST AN APPLICANT
OR ON HIS BEHALF.  /18/ 

THERE IS NO CONSTITUTIONAL RIGHT FOR ANY RACE TO BE PREFERRED.  THE
YEARS OF SLAVERY DID MORE THAN RETARD THE PROGRESS OF BLACKS.  EVEN A
GREATER WRONG WAS DONE THE WHITES BY CREATING ARROGANCE INSTEAD OF
HUMILITY AND BY ENCOURAGING THE GROWTH OF THE FICTION OF A SUPERIOR
RACE.  THERE IS NO SUPERIOR PERSON BY CONSTITUTIONAL STANDARDS.  A
DEFUNIS WHO IS WHITE IS ENTITLED TO NO ADVANTAGE BY REASON OF THAT
FACT; NOR IS HE SUBJECT TO ANY DISABILITY, NO MATTER WHAT HIS RACE OR
COLOR.  WHATEVER HIS RACE, HE HAD A CONSTITUTIONAL RIGHT TO HAVE HIS
APPLICATION CONSIDERED ON ITS INDIVIDUAL MERITS IN A RACIALLY NEUTRAL
MANNER. 

THE SLATE IS NOT ENTIRELY CLEAN.  FIRST, WE HAVE HELD THAT PRO RATA
REPRESENTATION OF THE RACES IS NOT REQUIRED EITHER ON JURIES, SEE
CASSELL V. TEXAS, 339 U.S. 282, 286 - 287, OR IN PUBLIC SCHOOLS, SWANN
V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1, 24.  MOREOVER,
IN HUGHES V. SUPERIOR COURT, 339 U.S. 460, WE REVIEWED THE CONTEMPT
CONVICTIONS OF PICKERTS WHO SOUGHT BY THEIR DEMONSTRATION TO FORCE AN
EMPLOYER TO PREFER NEGROES TO WHITES IN HIS HIRING OF CLERKS, IN ORDER
TO ENSURE THAT 50% OF THE EMPLOYEES WERE NEGRO.  IN FINDING THAT
CALIFORNIA COULD CONSTITUTIONALLY ENJOIN THE PICKETING THERE INVOLVED
WE QUOTED FROM THE OPINION OF THE CALIFORNIA SUPREME COURT, WHICH NOTED
THAT THE PICKETS WOULD "'MAKE THE RIGHT TO WORK FOR LUCKY DEPENDENT NOT
ON FITNESS FOR THE WORK NOR ON AN EQUAL RIGHT OF ALL, REGARDLESS OF
RACE, TO COMPETE IN AN OPEN MARKET, BUT, RATHER, ON MEMBERSHIP IN A
PARTICULAR RACE.  IF PETITIONERS WERE UPHELD IN THEIR DEMAND THEN OTHER
RACES, WHITE, YELLOW, BROWN AND RED, WOULD HAVE EQUAL RIGHTS TO DEMAND
DISCRIMINATORY HIRING ON A RACIAL BASIS.'"  ID., AT 463 - 464.  WE THEM
NOTED THAT 

"(TO DENY TO CALIFORNIA THE RIGHT TO BAN PICKETING IN THE
CIRCUMSTANCES OF THIS CASE WOULD MEAN THAT THERE COULD BE NO
PROHIBITION OF THE PRESSURE OF PICKETING TO SECURE PROPORTIONAL
EMPLOYEMENT ON ANCESTRAL GROUNDS OF HUNGARIANS IN CLEVELAND, OF POLES
IN BUFFALO, OF GERMANS IN MILWAUKEE, OF PORTUGUESE IN NEW BEDFORD, OF
MEXICANS IS SAN ANTONIO, OF THE NUMEROUS MINORITY GROUPS IN NEW YORK,
AND SO ON THROUGH THE WHOLE GAMUT OF RACIAL AND RELIGIOUS
CONCENTRATIONS IN VARIOUS CITIES."  ID., AT 464. 

THE RESERVATION OF A PROPORTION OF THE LAW SCHOOL CLASS FOR MEMBERS
OF SELECTED MINORITY GROUPS IS FRAUGHT WITH SIMILAR DANGERS, FOR ONE
MUST IMMEDIATELY DETERMINE WHICH GROUPS ARE TO RECEIVE SUCH FAVORED
TREATMENT AND WHICH ARE TO BE EXCLUDED, THE PROPORTIONS OF THE THE
CLASS THAT ARE TO BE ALLOCATED TO EACH, AND EVEN THE CRITERIA BY WHICH
TO DETERMINE WHETHER AN INDIVIDUAL IS A MEMBER OF A FAVORED GROUP. 
THERE IS NO ASSURANCE THAT A COMMON AGREEMENT CAN BE REACHED, AND FIRST
THE SCHOOLS, AND THEN THE COURTS, WILL BE BUFFETED WITH THE COMPETING
CLAIMS.  THE UNIVERSITY OF WASHINTON INCLUDED FILIPIONS, BUT EXCLUDED
CHINESE AND JAPANESE; ANOTHER SCHOOL MAY LIMIT ITS PROGRAM TO BLACKS,
OR TO BLACKS AND CHICANOS.  ONCE THE COURT SANCTIONED RACIAL
PREFERENCES SUCH AS THESE, IT COULD NOT THEN WASH ITS HANDS OF THE
MATTER, LEAVING IT ENTIRELY IN THE DISCRETION OF THE SCHOOL, FOR THEN
WE WOULD HAVE EFFECTIVELY OVERRULED SWEATT V. PAINTER, 339 U.S. 629,
AND ALLOWED IMPOSITION OF A "ZERO" ALLOCATION.  /19/  BUT WHAT STANDARD
IS THE COURT TO APPLY WHEN A REJECTED APPLICANT OF JAPENESE ANCESTRY
BRINGS SUIT TO REQUIRE THE UNIVERSITY OF WASHINGTON TO EXTEND THE SAME
PRIVILEGES TO HIS GROUP?  THE COMMITTEE MIGHT CONCLUDE THAT THE
POPULATION OF WASHINGTON IS NOW 2% JAPANESE, AND THAT JAPANESE ALSO
CONSTITUT 2% OF THE BAR, BUT THAT HAD THEY NOT BEEN HANDICAPPED BY A
HISTORY OF DISCRIMINATION, JAPANESE WOULD NOW CONSTITUTE 5% OF THE BAR,
OR 20%.  OR, ALTERNATIVELY, THE COURT COULD ATTEMPT TO ASSESS HOW
GRIEVOUSLY EACH GROUP HAS SUFFERED FROM DISCRIMINATION, AND ALLOCATE
PROPORTIONS ACCORDINGLY; IF THAT WERE THE STANDARD THE CURRENT
UNIVERSTIY OF WASHINGTON POLICY WOULD ALMOST SURELY FALL, FOR THERE IS
NO WESTERN STATE WHICH CAN CLAIM THAT IT HAS ALWAYS TREATED JAPANESE
AND CHINESE IN A FAIR AND EVENHANDED MANNER.  SEE, E.G., YICK WO V.
HOPKINS, 118 U.S. 356; TERRACE V. THOMPSON, 263 U.S. 197; OYAMA V.
CALIFORNIA, 332 U.S. 633.  THIS COURT HAS NOT SUSTAINED A RACIAL
CLASSIFICATION SINCE THE WARTIME CASES OF KORENMATSU V. UNITED STATES,
323 U.S 214 (1944), AND HIRABAYASHI V. UNITED STATES, 320 U.S. 81
(1943), INVOLVING CURFEWS AND RELOCATIONS IMPOSED UPON JAPANESE
AMERICANS.  /20/     NOR OBVIOUSLY WILL THE PROBLEM BE SOLVED IF NEXT
YEAR THE LAW SCHOOL INCLUDED ONLY JAPANESE AND CHINESE, FOR THEN
NORWEGIANS AND SWEDES, POLES AND ITALIANS, PUERTO RICANS AND
HUNGARIANS, AND ALL OTHER GROUPS WHICH FORM THIS DIVERSE NATION WOULD
HAVE JUST COMPLAINTS. 

THE KEY TO THE PROBLEM IS CONSIDERATION OF SUCH APPLICATIONS IN A
RACIALLY NEUTRAL WAY.  ABOLITION OF THE LSAT WOULD BE A START.  THE
INVENTION OF SUBSTITUE TESTS MIGHT BE MADE TO GET A MEASURE OF AN
APPLICANT'S CULTRUAL BACKGROUND, PERCEPTION, ABILITY TO ANALYZE, AND
HIS OR HER RELATION TO GROUPS.  THEY ARE HIGHLY SUBJECTIVE, BUT UNLIKE
THE LSAT THEY ARE NOT CONCEALED, BUT IN THE OPEN.  A LAW SCHOOL IS NOT
BOUND BY ANY LEGAL PRINCIPLE TO ADMIT STUDENTS BY MECHANICAL CRITERIA
WHICH ARE INSENSITIVE TO THE POTENTIAL OF SUCH AN APPLICANT WHICH MAY
BE REALIZED IN A MORE HOSPITABLE ENVIRONMENT.  IT WILL BE NECESSARY
UNDER SUCH AN APPROACH TO PUT MORE EFFORT INTO ASSESSING EACH
INDIVIDUAL THAN IS REQUIRED WHEN LSAT SCORES AND UNDERGRADUATE GRADES
DOMINATE THE SELECTION PROCESS.  INTERVIEWS WITH THE APPLICANT AND
OTHERS WHO KNOW HIM IS A TIME-HONORED TEST.  SOME SCHOOLS CURRENTLY RUN
SUMMER PROGRAMS IN WHICH POTENTIAL STUDENTS WHO LIKELY WOULD BE
BYPASSED UNDER CONVENTIONAL ADMISSIONS CRITERIA ARE GIVEN THE
OPPORTUNITY TO TRY THEIR HAND AT LAW COURSES, /21/  AND CERTAINLY THEIR
PERFORMANCE IN SUCH PROGRAMS COULD BE WEIGHED HEAVILY.  THERE IS,
MOREOVER, NO BAR TO CONSIDERING AN INDIVIDUAL'S PRIOR ACHIEVEMENTS IN
LIGHT OF THE RACIAL DISCRIMINATION THAT BARRED HIS WAY, AS A FACTOR IN
ATTEMPTING TO ASSESS HIS TRUE POTENTIAL FOR A SUCCESSFUL LEGAL CAREER. 
NOR IS THERE ANY BAR TO CONSIDERING ON AN INDIVIDUAL BASIS, RATHER THAN
ACCORDING TO RACIAL CLASSIFICATIONS, THE LIKELIHOOD THAT A PARTICULAR
CANDIDATE WILL MORE LIKELY EMPLOY HIS LEGAL SKILLS TO SERVICE
COMMUNITIES THAT ARE NOT NOW ADEQUATELY REPRESENTED THAN WILL COMPETING
CANDIDATES.  NOT EVERY STUDENT BENEFITED BY SUCH AN EXPANDED ADMISSIONS
PROGRAM WOULD FALL INTO ONE OF THE FOUR RACIAL GROUPS INVOLVED HERE,
BUT IT IS NO DRAWBACK THAT OTHER DESERVING APPLICANTS WILL ALSO GET AN
OPPORTUNITY THEY WOULD OTHERWISE HAVE BEEN DENIED.  CERTAINLY SUCH A
PROGRAM WOULD SUBSTANTIALLY FULFILL THE LAW SCHOOL'S INTEREST IN GIVING
A MORE DIVERSE GROUP ACCESS TO THE LEGAL PROFESSION.  SUCH A PROGRAM
MIGHT BE LESS CONVENIENT ADMINISTRATIVELY THAN SIMPLY SORTING STUDENTS
BY RACE, BUT WE HAVE NEVER HELD ADMINISTRATIVE CONVENIENCE TO JUSTIFY
RACIAL DISCRIMINATION. 

THE ARGUMENT IS THAT A "COMPELLING" STATE INTEREST CAN EASILY
JUSTIFY THE RACIAL DISCRIMINATION THAT IS PRACTICED HERE.  TO MAY,
"COMPELLING" WOULD GIVE MEMBERS OF ONE RACE EVEN MORE THAN PRO RATA
REPRESENTATION.  THE PUBLIC PAYROLLS MIGHT THEN BE DELUGED SAY WITH
CHICANOS BECAUSE THEY ARE AS A GROUP THE POOREST OF THE POOR AND NEED
WORK MORE THAN OTHERS, LEAVING DESPERATELY POOR INDIVIDUAL BLACKS AND
WHITES WITHOUT EMPLOYMENT.  BY THE SAME TOKEN LARGE QUOTAS OF BLACKS OR
BROWNS COULD BE ADDED TO THE BAR, WAIVING EXAMINATIONS REQUIRED OF
OTHER GROUPS, SO THAT IT WOULD BE BETTER RACIALLY BALANCED.  /22/  THE
STATE, HOWEVER, MAY NOT PROCEED BY RACIAL CLASSIFICATION TO FORCE
STRICT POPULATION EQUIVALENCIES FOR EVERY GROUP IN EVERY OCCUPATION,
OVERRIDING INDIVIDUAL PREFERENCES.  THE EQUAL PROTECTION CLAUSE
COMMANDS THE ELIMINATION OF RACIAL BARRIERS, NOT THEIR CREATION IN
ORDER TO SATISFY OUR THEORY AS TO HOW SOCIETY OUGHT TO BE ORGANIZED. 
THE PURPOSE OF THE UNIVERSITY OF WASHINGTON CANNOT BE TO PRODUCE BLACK
LAWYERS FOR BLACKS, POLISH LAWYERS FOR POLES, JEWISH LAWYERS FOR JEWS,
IRISH LAWYERS FOR IRISH.  IT SHOULD BE TO PRODUCE GOOD LAWYERS FOR
AMERICANS AND NOT TO PLACE FIRST AMENDMENT BARRIERS AGAINST ANYONE. 
/23/  THAT IS THE POINT AT THE HEART OF ALL OUR SCHOOL DESEGREGATION
CASES, FROM BROWN V. BOARD OF EDUCATION, 347 U.S. 483, THROUGH SWANN V.
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1.  A SEGREGATED
ADMISSIONS PROCESS CREATES SUGGESTIONS OF STIGMA AND CASTE NO LESS THAN
A SEGREGATED CLASSROOM, AND IN THE END IT MAY PRODUCE THAT RESULT
DESPITE ITS CONTRARY INTENTIONS.  ONE OTHER ASSUMPTION MUST BE CLEARLY
DISAPPROVED, THAT BLACKS OR BROWNS CONNOT MAKE IT ON THEIR INDIVIDUAL
MERIT.  THAT IS A STAMP OF INFERIORITY THAT A STATE IS NOT PERMITTED TO
PLACE ON ANY LAWYER. 

IF DISCRIMINATION BASED ON RACE IS CONSTITUTIONALLY PERMISSIBLE WHEN
THOSE WHO THE REINS CAN COME UP WITH "COMPELLING" REASONS TO JUSTIFY
IT, THEN CONSTITUTIONAL GUARANTEES ACQUIRE AN ACCORDIONLIKE QUALITY. 
SPEECH IS CLOSELY BRIGADED WITH ACTION WHEN IT TRIGGERS A FIGHT,
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, AS SHOUTING "FIRE" IN A
CROWDED THEATER TRIGGERS A RIOT.  IT MAY WELL BE THAT RACIAL STRAINS,
RACIAL SUSCIPTIBILITY TO CERTAIN DISEASES, RACIAL SENSITIVENESS TO
ENVIORNMENTAL CONDITIONS THAT OTHER RACES DO NOT EXPERIENCE, MAY IN AN
EXTREME SITUATION JUSTIFY DIFFERENCES IN RACIAL TREATMENT THAT NO
FAIRMAINDED PERSON WOULD CALL "INVIDIOUS" DISCRIMINATION.  MENTAL
ABILITY IS NOT IN THAT CATEGORY.  ALL RACES CAN COMPETE FAIRLY AT ALL
PROFESSIONAL LEVELS.  SO FAR AS RACE IS CONCERNED, ANY STATE-SPONSORED
PREFERENCE TO ONE RACE OVER ANOTHER IN THAT COMPETITION IS IN MY VIEW
"INVIDIOUS" AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE. 

THE PROBLEM TENDERED BY THIS CASE IS IMPORTANT AND CRUCIAL TO THE
OPERATION OF OUR CONSTITUTIONAL SYSTEM; AND EDUCATORS MUST BE GIVEN
LEEWAY.  IT MAY WELL BE THAT A WHOLE CONGERIES OF APPLICANTS IN THE
MARGINAL GROUP DEFY KNOWN METHODS OF SELECTION.  CONCEIVABLY, AN
ADMISSIONS COMMITTEE MIGHT CONCLUDE THAT A SELECTION BY LOT OF, SAY,
THE LAST 20 SEATS IS THE ONLY FAIR SOLUTION.  COURTS ARE NOT EDUCATORS;
THEIR EXPERTISE IS LIMITED; AND OUR TASK ENDS WITH THE INQUIRY WHETHER,
JUDGED BY THE MAIN PRUPOSE OF THE EQUAL PROTECTION CLAUSE--THE
PROTECTION AGAINST RACIAL DISCRIMINATION /24/ --THERE HAS BEEN AN
"INVIDIOUS" DISCRIMINATION. 

WE WOULD HAVE A DIFFERENT CASE IF THE SUIT WERE ONE TO DISPLACE THE
APPLICANT WHO WAS CHOSEN IN LIEU OF DEFUNIS.  WHAT THE RECORD WOULD
SHOW CONCERNING HIS POTENTIALS WOULD HAVE TO BE CONSIDERED AND
WEIGHED.  THE EDUCATIONAL DECISION, PROVIDED PROPER GUIDELINES WERE
USED, WOULD REFLECT AN EXPERTISE THAT COURTS SHOULD HONOR.  THE PROBLEM
IS NOT TENDERED HERE BECAUSE THE PHYSICAL FACILITIES WERE APPARENTLY
ADEQUATE TO TAKE DEFUNIS IN ADDITION TO THE OTHERS.  MY VIEW IS ONLY
THAT IO CANNOT SAY BY THE TESTS USED AND APPLIED HE WAS INVIDIOUSLY
DISCRIMINATED AGAINST BECUASE OF HIS RACE. 

I CANNOT CONCLUDE THAT THE ADMISSIONS PROCEDURE OF THE LAW SCHOOL OF
THE UNIVERSITY OF WASHINGTON THAT EXCLUDED DEFUNIS IS VIOLATIVE OF THE
EQUAL PROTECTION CLAUSE OF THE FOUTEENTH AMENDMENT.  THE JUDGMENT OF
THE WASHINGTON SUPREME COURT SHOULD BE VACATED AND THE CASE REMANDED
FOR A NEW TRIAL. 

/1/  THE GRADES ARE CALCULATED ON A CONENTIONAL 4.0 SCALE, AND THE
LSAT IS SCORED ON A SCALE RANGING FROM 200 TO 800.  A WRITING TEST
GIVEN ON THE SAME DAY AS THE LSAT AND ADMINISTERED WITH IT IS ALSO
INCLUDED IN THE FORMULA; IT IS SCORED ON A SCALE OF 20 TO 80.  THE
ADMISSIONS COMMITTEE COMBINES THESE SCORES INTO THE AVERAGE BY
CALCULATING THE SUM OF 51.3, 3.4751 X THE GRADE-POINT AVERAGE, .0159 X
LSAT SCORE, AND .0456 X THE WRITING TEST SCORE.  APP. 24., FOR A BRIEF
DISCUSSION OF THE USE OF THE LSAT IN COMBINATION WITH UNDERGRADUATE
GRANDES TO PREDICT LAW SCHOOL SUCCESS, SEE WINTER-BOTTOM, COMMENTS ON
"A STUDY OF THE CRITERIA FOR LEGAL EDUCATION AND ADMISSION TO THE BAR,"
AN ARTICLE BY DR. THOMAS M. GOOLSBY, JR., 21 J. LEGAL ED. 75 (1968). 

/2/  THE ONLY OTHER SUBSTANTIAL GROUP ADMITTED AT THIS POINT WERE 19
"MILITARY" APPLICANTS.  THESE WERE STUDENTS WHO HAD PREVIOUSLY BEEN
ADMITTED TO THE SCHOOL BUT WHO HAD WITHER BEEN UNABLE TO COME, OR
FORCED TO LEAVE DURING THEIR TENURE, BECAUSE OF THE DRAFT.  THEY WERE
GIVEN PREFERENTAIL TREATMENT UPON REAPPLICATION AFTER COMPLETING THEIR
MILITARY OBLIGATION.  SINCE NEITHER PARTY HAS RAISED ANY ISSUE
CONCERNING THIS GROUP OF APPLICANTS, THE REMAINING CONSIDERATION OF THE
ADMISSIONS PROCEDURE WILL NOT DISCUSS THEM.  FOUR MINORITY APPLICANTS
WERE ALSO ADMITTED AT THIS TIME, ALTHOUGH NONE APPARENTLY HAD SCORES
ABOVE 77.  APP.  31.  THEIR ADMISSION WAS PRESUMABLY PRUSUANT TO THE
PROCEDURE FOR MINORITY APPLICANTS DESCRIBED BELOW. 

/3/  THIS WAS A COUNCIL ON LEGAL EDUCATION OPPORTUNITIES PROGRAM,
FEDERALLY FUNDED BY THE OFFICE OF ECONOMIC OPPORTUNITY AND SPONSORED BY
THE AMERICAN BAR ASSOCIATION, THE ASSOCIATION OF AMERICAN ADMISSIONS
COUNCIL. 

/4/  TESTIMONY OF THE CHAIRMAN OF THE ADMISSIONS COMMITTEE,
STATEMENT OF FACTS 353. 

/5/  THE GUIDE TO APPLICANTS EXPLAINED: 

"WE GAUGED THE POTENTIAL FOR OUTSTANDING PERFORMANCE IN LAW SCHOOL
NOT ONLY FROM THE EXISTENCE OF HIGH TEST SCORES AND GRADE POINT
AVERAGES, BUT ALSO FROM CAREFUL ANALYSIS OF RECOMMENDATIONS, THE
QUALITY OF WORK IN DIFFICULT ANALYTICLA SEMINARS, COURSES, AND WRITING
PROGRAMS, THE ACADEMIC STANDARDS OF THE SCHOOL ATTENDED BY THE
APPLICANT, THE APPLICANT'S GRADUATE WORK (IF ANY), AND THE NATURE OF
THE APPLICANT'S EMPLOYEMNT (IF ANY), SINCE GRADUATION. 

"AN APPLICANT'S ABILITY TO MAKE SIGNIFICANT CONTRIBUTIONS TO LAW
SCHOOL CLASSES AND THE COMMUNITY AT LARGE WAS ASSESSED FROM SUCH
FACTORS AS HIS EXTRACURRICULAR AND COMMUNITY ACTIVITIES, EMPLOYMENT,
AND GENERAL BACKGROUND. 

"WE GAVE NO PREFERENCE TO, BUT DID NOT DISCRIMINATE AGAINST, EITHER
WASHINGTON RESIDENTS OR WOMEN IN MAKING OUR DETERMINATIONS.  AN
APPLICANT'S RACIAL OR ETHNIC BACKGROUND WAS CONSIDERED AS ONE FACTOR IN
OUR GENERAL ATTEMPT TO CONVERT FORMAL CREDENTIALS INTO REALISTIC
PREDICTIONS."  82 WASH. 2D 11, 18 - 19, 507 P. 2D 1169, 1174. 

/6/  THE RESPONDENTS PROVIDED THE FOLLOWING TABLE IN RESPONSE TO AN
INTERROGATORY DURING THE PROCEEDINGS IN THE STATE COURT: 

     PREDICTED           NUMBER OF                   NUMBER 

FIRST YEAR AVERAGES    APPLICATIONS RECEIVED   ACCEPTED 

81                   1                           1 

     80                   2                           2 

     79                  11                          11 

     78                  42                          42 

     77                 105                         93 

     76                169                          53 

     75                210                         22 

APP. 34. 

/7/  ALTHOUGH THERE IS APPARENTLY NO EVIDENCE IN POINT IN THE
RECORD, RESPONDENTS SUGGEST THAT AT LEAST SOME OF THESE EIGHT STUDENTS
WERE ALSO ADMITTED ON A PREFERENTIAL BASIS.  BRIEF FOR RESPONDENTS 40
N.27. 

/8/  UNITED STATES BUREAU OF THE CENSUS, CENSUS OF POPULATION: 1970,
GENERAL PROPULATION CHARACTERISTICS, WASHINGTON, FINAL REPORT PC (1)-
B49, TABLE 18. 

/9/  FOR A HISTORY OF GRADUAL ACCEPTANCE AMONG LAW SCHOOLS OF
STANDARDIZED TESTS AS AN ADMISSIONS TOOL, SEE RAMSEY, LAW SCHOOL
ADMISSIONS: SCIENCE, ART, OR HUNCH?, 12 J. LEGAL ED. 503 (1960). 

/10/  FOR A SURVEY OF THE USE OF THE LSAT BY AMERICAN LAW SCHOOLS AS
OF 1965, SEE LUNNEBORG & RADFORD, THE LSAT: A SURVEY OF ACTUAL
PRACTICE, 18 J. LEGAL ED. 313 (1969). 

/11/  ROCK, MOTIVATION, MODERATORS, AND TEST BIAS, 1970 U. TOL.  L.
RE. 527, 535. 

/12/  AT THE OUTSET THE COMMITTEE MAY HAVE CHOSEN ONLY A RANGE, WITH
THE PRECISE NUMBER TO BE DETERMINED LATER IN THE PROCESS AS THE TOTAL
NUMBER OF MINORITY APPLICANTS, AND SOME TINTATIVE ASSESSMENT OF THEIR
QUALITY, COULD BE DETERMINED.  THIS APPEARS TO BE THE CURRENT
ARTICULATED POLICY, SEE APPENDIX 6, AND WE ARE ADVISED BY THE
RESPONDENTS THAT 6 "REPRESENTS A MORE FORMAL STATEMENT OF THE POLICY
WHICH WAS IN EFFECT IN 1971 . . . BUT DOES NOT REPRESENT ANY CHANGE IN
POLICY."  LETTER TO THE COURT DATED MARCH 19, 1974, P.1.  THE FACT THAT
THE COMMITTEE DID NOT SET A PRECISE NUMBER IN ADVANCE IS OBVIOUSLY
IRRELEVANT TO THE LEGAL ANALYSIS.  NOR DOES IT MATTER THAT THERE IS
SOME MINIMAL LEVEL OF ACHIEVEMENT BELOW WHICH THE COMMITTEE WOULD NOT
REACH IN ORDER TO ACHIEVE ITS STATED GOAL AS TO THE PROPORTION OF THE
CLASS RESERVED FOR MINORITY GROUPS, SO LONG AS THE COMMITTEE WAS
WILLING, IN ORDER TO ACHIEVE THAT GOAL, TO ADMIT MINORITY APPLICANTS
WHO, IN THE COMMITTEE'S OWN JUDGMENT, WERE LESS QUALIFIED THAN OTHER
REJECTED APPLICANTS AND WHO WOULD NOT OTHERWISE HAVE BEEN ADMITTED. 

/13/  SEE N.12, SUPRA, AND APPENDIX 6. 

/14/  UNCOMMON CONTROVERSY, REPORT PREPARED FOR AMERICAN FRIENDS
SERVICE COMMITTEE 29 - 30 (1970). 

/15/  SEE C. FEE, CHEIF JOSEPH, THE BIOGRAPHY OF A GREAT INDIAN
(1936). 

/16/  SEE F. BROCKWAY, AFRICAN SOCIALISM (1963); AFRICAN SOCIALISM
(W. FRIENDLAND & C. ROSBERG ED. 1964). 

/17/  SEE L. SENGHOR, ON AFRICAN SOCIALISM (M. COOK ED. 1964). 

/18/  WE ARE NOT FACED HERE WITH A SITUATION WHERE BARRIERS ARE
OVERTLY OR COVERTLY PUT IN THE PATH OF MEMBERS OF ONE RACIAL GROUP
WHICH ARE NOT REQUIRED BY OTHERS.  THERE WAS ALSO NO SHOWING THAT THE
PURPOSE OF THE SCHOOL'S POLICY WAS TO ELIMINATE ARBITRARY AND
IRRELEVANT BARRIERS TO ENTRY BY CERTAIN RACIAL GROUPS INTO THE LEGAL
PROFESSION GROUPS.  GRIGGS V. DUKE POWER CO., 401 U.S. 424.  IN SWANN
V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1, 16, WE STATED
THAT AS A MATTER OF EDUCATIONAL POLICY SCHOOL AUTHORITIES COULD, WITHIN
THEIR BROAD DISCRETION, SPECIFY THAT EACH SCHOOL WITHIN ITS DISTRICT
HAVE A PRESCRIBED RATIO OF NEGRO TO WHITE STUDENTS REFLECTING THE
PROPORTION FOR THE DISTRICT AS A WHOLE, IN ORDER TO DISESTABLISH A SUAL
SCHOOL SYSTEM.  BUT THERE IS A CRUCIAL DIFFERENCE BETWEEN THE POLICY
SUGGESTED IN SWANN AND THAT UNDER CONSIDERATION RIGHTS, BECAUSE NO ONE
WOULD BE EXCLUDED FROM A PUBLIC SCHOOL AND NO ONE HAS A RIGHT TO ATTEND
A SEGREGATED PUBLIC SCHOOL.     /19/  SWEATT HELD THAT A STATE COULD
NOT JUSTIFY DENYING A BLACK ADMISSION TO ITS REGULAR LAW SCHOOL BY
CREATING A NEW SCHOOL FOR BLACKS.  WE HELD THAT THE NEW LAW SCHOOL DID
NOT MEET THE REQUIREMENTS OF "EQUALITY" SET FORTH IN PLESSY V.
FERGUSON, 163 U.S. 537. 

THE STUDENT, WE SAID, WAS ENTITLED TO "LEGAL EDUCATION EQUIVALENT TO
THAT OFFERED BY THE STATE TO STUDENTS OF OTHER RACES.  SUCH EDUCATION
IS NOT AVAILABLE TO HIM IN A SEPARATE LAW SCHOOL AS OFFERED BY THE
STATE."  339 U.S. 629, 635. 

/20/  THOSE CASES INVOLVED AN EXERCISE OF THE WAR POWER, A GREAT
LEVELER OF OTHER RIGHTS.  OUR NAVY WAS SUCK AT PEARL HARBOR AND NO ONE
KNEW WHERE THE JAPANESE FLEET WAS.  WE WERE ADVISED ON ORAL ARGUMENT
THAT IF THE JAPANESE LANDED TROOPS ON OUR WEST COAST NOTHING COULD STOP
THEM WEST OF THE ROCKIES.  THE MILITARY JUDGMENT WAS THAT, TO AID IN
THE PROSPECTIVE DEFENSE OF THE WEST COAST, THE ENCLAVES OF AMERICANS OF
JAPANESE ANCESTRY SHOULD BE MOVED INLAND, LEST THE INVADERS BY DONNING
CIVILIAN CLOTHES WOULD WREAK EVEN MORE SERIOUS HAVOC ON OUR WESTERN
PORTS.  THE DECISIONS WERE EXTREME AND WENT TO THE VERGE OF WARTIME
POWER; AND THEY HAVE BEEN SEVERELY CRITICIZED.  IT IS, HOWEVER, EASY IN
RETROSPECT TO DENOUNCE WHAT WAS DONE, AS THERE ACTUALLY WAS NO
ATTEMPTED JAPANESE INVASION OF OUR COUNTRY.  WHILE OUR JOINT CHIEFS OF
STAFF WERE WORRYING ABOUT JAPANESE SOLDIERS LANDING ON THE WEST COAST,
THEY ACTUALLY WERE LANDING IN BURMA AND AT KOTA BHARU IN MALAYA.  BUT
THOSE MAKING PLANS FOR DEFENSE OF THE NATION HAD NO SUCH KNOWLEDGE AND
WERE PLANNING FOR THE WORST.  MOREOVER, THE DAY WE DECIDED KOREMATSU WE
ALSO DECIDED EX PARTE ENDO, 323 U.S. 283, HOLDING THAT WHILE EVACUATION
OF THE AMERICANS OF JAPANESE ANCESTRY WAS ALLOWABLE UNDER EXTREME WAR
CONDITIONS,T HEIR DETENTION AFTER EVACUATION WAS NOT.  WE SAID: 

"A CITIZEN WHO IS CONCEDEDLY LOYAL PRESENTS NO PROBLEM OF ESPIONAGE
OR SABOTAGE.  LOYALTY IS A MATTER OF THE HEART AND MIND, NOT OF RACE,
CREED, OR COLOR.  HE WHO IS LOYAL IS BY DEFINITION NOT A SPY OR A
SABOTEUR.  WHEN THE POWER TO DETAIN IS DERIVED FROM THE POWER TO
PROTECT THE WAR EFFORT AGAINST ESPIONAGE AND SABOTAGE, DETENTION WHICH
HAS NO RELATIONSHIP TO THAT OBJECTIVE IS UNAUTHORIZED."  ID., AT 302. 

/21/  SEE N. 3, SUPRA. 

/22/  IN JOHNSON V. COMMITTEE ON EXAMINATIONS, 407 U.S. 915, WE
DENIED CERTIORI IN A CASE PRESENTING A SIMILAR ISSUE.  THERE THE
PETITIONER CLAIMED THAT THE BAR EXAMINERS RECONSIDERED THE PAPERS
SUBMITTED BY FAILING MINORITY APPLICANTS WHOSE SCORES WERE CLOSE TO THE
CUTOFF POINT, WITH THE RESULT THAT SOME MINORITY APPLICANTS WERE
ADMITTED TO THE BAR ALTHOUGH THEY INITIALLY HAD EXAMINATION SCORES
LOWER THAN THOSE OF WHITE APPLICANTS WHO FAILED. 

AS THE ARIZONA SUPREME COURT DENIED JOHNSON ADMISSION SUMMARILY, IN
AN ORIGINAL PROCEEDING, THERE WERE NO JUDICIAL FINDINGS EITHER
SUSTAINING OR REJUECTING HIS FACTUAL CLAIMS OF RACIAL BIAS, PUTTING THE
CASE IN AN AWKWARD POSTURE FOR REVIEW HERE.  JOHNSON SUBSEQUENTLY
BROUGHT A CIVIL RIGHTS ACTION IN FEDERAL DISTRICT COURT, SEEKING BOTH
DAMAGES AND INJUNCTIVE RELIEF.  THE DISTRICT COURT DISMISSED THE ACTION
AND THE COURT OF APPEALS AFFIRMED, HOLDING THAT THE LOWER FEDEAL COURTS
DID NOT HAVE JURISDICTION TO REVIEW THE DECISIONS OF THE ARIZONA
SUPREME COURT ON ADMISSIONS TO THE STATE BAR.  JOHNSON THEN SOUGHT
REVIEW HERE AND WE DENIED HIS MOTION FOR LEAVE TO FILE A PETITION FOR
MANDAMUS, PROHIBITION AND/OR CERTORARI ON FEBRUARY 19, 1974.  JOHNSON
V. WILMER, 415 U.S. 911.  THUS IN THE ENTIRE HISTORY OF THE CASE NO
COURT HAD EVER ACTUALLY SUSTAINED JOHNSON'S FACTUAL CONTENTIONS
CONCERNING RACIAL BIAS IN THE BAR EXAMINERS' PROCEDURES.  DEFUNIS THUS
APPEARS TO BE THE FIRST CASE HERE SQUARELY PRESENTING THE PROBLEM. 

/23/  UNDERLYING ALL CULTURAL BACKGROUND TESTS ARE POTENTIAL
IDEOLOGICAL ISSUES THAT HAVE PLAGUED BAR ASSOCIATIONS AND THE COURTS. 
IN RE SUMMERS, 325 U.S. 561, INVOLVED THE DENIAL OF THE PRACTICE OF LAW
TO A MAN WHO COULD NOT CONSCIENTIOUSLY BEAR ARMS.  THE VOTE AGAINST HIM
WAS FIVE TO FOUR.  KONIGSBERG V. STATE BAR, 353 U.S. 252, FOLLOWED,
AFTER REMAND, BY KONIGSBERG V. STATE BAR, 366 U.S. 36, RESULTED IN
BARRING ONE FROM ADMISSION TO A STATE BAR BECAUSE OF HIS REFUSAL TO
ANSWER QUESTIONS CONCERNING COMMUNIST PARTY MEMBERSHIP.  HE, TOO, WAS
EXCLUDED FIVE TO FOUR.  THE PETITIONER IN SCHWARE V. BOARD OF BAR
EXAMINERS, 353 U.S. 232, WAS, HOWEVER, ADMITTED TO PRACTICE EVEN THOUGH
HE HAD ABOUT 10 YEARS EARLIER BEEN A MEMBER OF THE COMMUNIST PARTY. 
BUT IN RE ANASTRPLO, 366 U.S. 82, A FIVE-TO-FOUR DECISION, BARRED A MAN
FROM ADMISSION TO A STATE BAR NOT BECAUSE HE INVOKED THE FIFTH
AMENDEMENT WHEN ASKED ABOUT MEMBERSHIP IN THE COMMUNIST PARTY, BUT
BECUASE HE ASSERTED THAT THE FIRST AMENDMENT PROTECTED HIM FROM THAT
INQUIRY.  BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1, HELD BY A DIVIDED
VOTE THAT A PERSON COULD NOT BE KEPT OUT OF THE STATE BAR FOR REFUSING
TO ANSWER WHETHER HE HAD EVER BEEN A MEMER OF THE COMMUNIST PARTY; AND
SEE IN RE STOLAR, 401 U.S. 23. 

/24/  SEE SLAUGHTER HOUSE CASES, 16 WALL.  36, 81. 

JOSEF DIAMOND ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WAS LYLE L. IVERSEN. 

*BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MILTON A.
SMITH, GERARD C. SMETANA, AND JERRY KRONENBERG FOR THE CHAMBER OF
COMMERCE OF THE UNITED STATES; BY J. ALBERT WOLL, LAURENCE GOLD, AND
THOMAS E. HARRIS FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF
INDUSTRIAL ORGANIZATIONS; BY THEODORE R. MANN FOR THE AMERICAN JEWISH
CONGRESS; BY DAVID I. CAPLAN FOR THE JEWISH EIGHTS COUNCIL; BY ANTHONY
J. FORNELLI, THADDEUS L. KOWLASKI, AND SAMUEL RABINOVE FOR THE ADVOCATE
SOCIETY ET AL; BY ALEXANDER M. BICKEL, PHILIP B. KURLAND, LARRY M.
LAVINSKY, AND ARNOLD FORSTER FOR THE ANTI-DEFAMATION LEAGUE OF B'NAI
B'RITH; AND BY SANFORD JAY ROSEN, HERBERT TEITELBAUM, AND MELVIN L.
WULF FOR THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND ET
AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY WILLIAM J.
BROWN ATTORNEY GENERAL, AND ANDREQ J. RUZICHO, EARL M. MANZ, AND
STEPHEN J. SIMMONS, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF OHIO;
BY JOHN P. HARRIS FOR THE CITY OF SEATLE; BY FLETCHER N. BLADWIN, JR.,
AND CHESTERFIELD SMITH FOR THE AMERICAN BAR ASSN.; BY ARCHIBALD COX,
JAMES N. BIERMAN, JAMES A . SHARAF, AND DANIEL STEINER FOR THE
PRESIDENT AND FELLOWS OF HARVARD COLLEGE; BY J. HAROLD FLANNERY FOR THE
CENTER FOR LAW AND EDUCATION, HARVARD UNIVERSITY; BY FRANK ASKIN AND
NORMAN AMAKER FOR THE BOARD OF GOVERNORS OF RUTGERS, THE STATE
UNIVERSITY OF NEW JERSEY, ET AL.; BY EDGAR S. CAHN AND JEAN CAMPER CAHN
FOR THE DEANS OF THE ANTIOCH SCHOOL OF LAW; BY ERWIN N. GRISWOLD AND
CLIFFORD C. ALLOWAY FOR THE ASSOCIATION OF AMERICAN LAW SCHOOLS; BY
JOHN HOLT MYERS FOR THE ASSOCIATION OF AMERICAN MEDICAL COLLEGES; BY
HOWARD A. GLICKSTEIN FOR A GROUP OF LAW SCHOOL DENAS; BY HARRY B. REESE
AND PETER MARTIN FOR THE LAW SCHOOL ADMISSION COUNCIL; BY CRUZ REYNOSO
AND ROBERT B. MRKAY FOR THE COUNCIL ON LEGAL EDUCATION OPPORTUNITY; BY
ROSWELL B. PERKINS, KENNETH C. BASS III, DAVID S. TATEL, AND R. STEPHEN
BROWNING FOR THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW; BY JACK
GREENBERG, JAMES M. NABRIT III, CHARLES STEPHEN RALSTON, JEFFRY A.
MINTZ, LOUIS H. POLLAK, AND JOHN BAKER FOR THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.; BY DERRICK A. BELL, JR., FOR THE NATIONAL
CONFERENCE OF BLACK LAWYERS; BY BRUCE R. GREENE AND HERBERT BECKER FOR
THE AMERICAN INDIAN LAW STUDENTS ASSN., INC., ET AL.; BY CLIFFORD
SWEET, C. LYONEL JONES, DENNIS R. YEAGER, E. RICHARD LARSON, NATHANIEL
R. JONES, MICHAEL H. TERRY, JOSEPH A. MATERA, AND C. CHRISTOPHER BROWN
FOR THE LEGAL AID SOCIETY OF ALAMEDA COUNTY ET AL.; BY PETER VAN N.
LOCKWOOR, DAVID BONDERMAN, SYLVIA ROBERTS, AND DAVID RUBIN FOR THE
NATIONAL ORGANIZATION FOR WOMEN LEGAL DEFENSE AND EDUCATION FUND, INC.,
ET AL.; AND BY JOSEPH L. RAUH, JR., FOR THE NATIONAL COUNCIL OF JEWISH
WOMEN ET AL.
..END :















SCHEUER V. RHODES, 416 U.S 232 


       SCHEUER, ADMINISTRATRIX V. RHODES, GOVERNOR OF OHIO, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 72 - 914.  ARGUED.  DECEMBER 4, 1973--DECIDED APRIL 17,

      1974; 471 F.2D 430, REVERSED AND REMANDED. 

  *TOGETHER WITH NO. 72 - 1318, KRAUSE, ADMINISTRATOR, ET AL., V.
RHODES, GOVERNOR OF OHIO, ET

  AL., ALSO ON CERTIORARI TO THE SAME COURT. 


    PETITIONERS, AND PERASONAL REPRESENTATIVES OF THE ESTATES OF

  STUDENTS WHO WERE KELLED ON THE CAMPUS OF A STATE-CONTROLLED

  UNIVERSITY, BROUGHT THESE DAMAGES ACTIONS UNDER 42 U.S.C. 1983

  AGAINST THE GOVERNOR, THE ADJUTANT GENERAL OF THE OHIO NATIONAL

  GUARD, VARIOUS OTHER GUARD OFFICERS AND ENLISTED MEMBERS, AND THE

  UNIVERSITY PRESIDENT, CHARGING THAT THOSE OFFICIALS, ACTING UNDER

  COLOR OF STATE LAW, "INTENTIONALLY, RECKLESSLY, WILLFULLY AND

  WANTONLY"  CAUSED AN UNNECESSARY GUARD DEPLOYMENT ON THE CAMPUS

  AND ORDERED THE GUARD MEMBERS TO PERFORM ALLEGEDLY ILLEGAL ACTS

  RESULTING IN THE STUDENTS' DEATHS.  THE DISTRICT COURT DISMISSED

  THE COMPLAINTS FOR LACK OF JURISDICTION WITHOUT THE FILING OF ANY

  ANSWER AND WITHOUT ANY EVIDENCE OTHER THAN THE GOVERNOR'S

  PROCLAMATIONS AND BRIEF AFFIDAVITS OF THE ADJUTANT GENERAL AND

  HIS ASSISTANT, HOLDING THAT RESPONDENTS WERE BEING SUED IN THEIR

  OFFICIAL CAPACITIES AND THAT THE ACTIONS WERE THEREFORE IN EFFECT

  AGAINST THE STATE AND BARRED BY THE ELEVENTH AMENDMENT.  THE

COURT OF APPEALS AFFIRMED ON THAT GROUND AND ON THE ALTERNATIVE

  GROUND THAT THE COMMON-LAW DOCTRINE OF EXECUTIVE IMMUNITY WAS

  ABSOLUTE AND BARRED ACTION AGAINST RESPONDENT STATE OFFICIALS. 

  HELD: 

     1.  THE ELEVENTH AMENDMENT DOES NOT IN SOME CIRCUMSTANCES BAR

  ON ACTION FOR DAMAGES AGAINST A STATE OFFICIAL CHARGED WITH

  DEPRIVING A PERSON OF A FEDERAL RIGHT UNDER COLOR OF STATE LAW,

  AND THE DISTRICT COURT ACTED PREMATURELY AND HENCE ERRONEOUSLY IN

  DISMISSING THE COMPLAINTS AS IT DID WITHOUT AFFORDING PETITIONERS

  ANY OPPORTUNITY BY SUBSEQUENT PROOF TO ESTABLISH THEIR CLAIMS. 

  PP. 235 - 238. 

     2.  THE IMMUNITY OF OFFICERS OF THE EXECUTIVE BRANCH OF A
STATE

  GOVERNMENT FOR THEIR ACTS IS NOT ABSOLUTE BUT QUALIFIED AND OF

VARYING DEGREE, DEPENDING UPON THE SCOPE OF DISCRETION AND

RESPONSIBILITIES OF THE PARTICULAR OFFICE AND THE CIRCUMSTANCES

  EXISTING AT THE TIME THE CHALLENGED ACTION WAS TAKEN.  PP. 238 -
249. 

     BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL

  MEMBERS JOINED EXCEPT DOUGLAS, J., WHO TOOK NO PART IN THE

  DECISION OF THE CASES. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI /1/  IN THESE CASES TO RESOLVE WHETHER THE
DISTRICT COURT CORRECTLY DISMISSED CIVIL DAMAGE ACTIONS, BROUGHT UNDER
42 U.S.C. 1983, ON THE GROUND THAT THESE ACTIONS WERE, AS A MATTER OF
LAW, AGAINST THE STATE OF OHIO, AND HENCE BARRED BY THE ELEVENTH
AMENDMENT TO THE CONSTITUTION AND, ALTERNATIVELY, THAT THE ACTIONS WERE
AGAINST STATE OFFICIALS WHO WERE IMMUNE FROM LIABILITY FOR THE ACTS
ALLEGED IN THE COMPLAINTS.  THESE CASES ARISE OUT OF THE SAME PERIOD OF
ALLEGED CIVIL DISORDER ON THE CAMPUS OF KENT STATE UNIVERSITY IN OHIO
DURING MAY 1970 WHICH WAS BEFORE US, IN ANOTHER CONTEXT, IN GILLIGAN V.
MORGAN, 413 U.S. 1 (1973). 

IN THESE CASES THE PERSONAL REPRESENTATIVES OF THE ESTATES OF THREE
STUDENTS WHO DIED IN THAT EPISODE SEEK DAMAGES AGAINST THE GOVERNOR,
THE ADJUTANT GENERAL, AND HIS ASSISTANT, VARIOUS NAMED AND UNNAMED
OFFICES AND ENLISTED MEMBERS OF THE OHIO NATIONAL GUARD, AND THE
PRESIDENT OF KENT STATE UNIVERSITY.  THE COMPLAINTS IN BOTH CASES
ALLEGE A CAUSSE OF ACTION UNDER THE CIVIL RIGHTS ACT OF 1871, 17 STAT.
12, NOW 42 U.S.C. 1983.  PETITIONER SCHEUER ALSO ALLEGES A CAUSE OF
ACTION UNDER OHIO LAW ON THE THEORY OF PENDENT JURISDICTION. 
PETITIONERS KRAUSE AND MILLER MAKE A SIMILAR CLAIM, ASSERTING
JURISDICTION ON THE BASIS OF DEVERSITY OF CITIZENSHIP.  /2/ 

THE DISTRICT COURT DISMISSED THE COMPLAINTS FOR LACK OF JURISDICTION
OVER THE SUBJECT MATTER ON THE THEORY THAT THESE ACTIONS, ALTHOUGH IN
FORM AGAINST THE NAMED INDIVIDUALS, WERE, IN SUBSTANCE AND EFFECT,
AGAINST THE STATE OF OHIO AND THUS BARRED BY THE ELEVENTH AMENDMENT. 
THE COURT OF APPELAS AFFIRMED THE ACTION OF THE DISTRICT COURT,
AGREEING THAT THE SUIT WAS IN LEGAL EFFECT ONE AGAINST THE STATE OF
OHIO AND, ALTERNATIVELY, THAT THE COMMON-LAW DOCTRINE OF EXECUTIVE
IMMUNITY BARRED ACTION AGAINST THE STATE OFFICIALS WHO ARE RESPONDENTS
HERE.  471 F.2D 430 (1972).  WE ARE CONFRONTED WITH THE NARROW
THRESHOLD QUESTION WHETHER THE DISTRICT COURT PROPERLY DISMISSED THE
COMPLAINTS.  WE HOLD THAT DISMISSAL WAS INAPPROPRIATE AT THIS STAGE OF
THE LITIGATION AND ACCORDINGLY REVERSE THE JUDGMENTS AND REMAND FOR
FURTHER PROCEEDINGS.  WE INTIMATE NO VIEW ON THE MERITS OF THE
ALLEGATIONS SINCED THERE IS NO EVIDENCE BEFORE US AT THIS STAGE. 

        I 

THE COMPLAINTS IN THESE CASES ARE NOT IDENTICAL BUT THEIR THRUST IS
ESSENTIALLY THE SAME.  IN ESSENCE, THE DEFENDANTS ARE ALLEGED TO HAVE
"INTENTIONALLY, RECKLESSLY, WILLFULLY AND WANTONLY" CAUSED AN
UNNECESSARY DEPLOYMENT OF THE OHIO NATIONAL GUARD ON THE KENT STATE
CAMPUS AND, IN THE SAME MANNER, ORDERED THE GUARD MEMBERS TO PERFORM
ALLEGEDLY ILLEGAL ACTIONS WHICH RESULTED IN THE DEALTH OF PLAINTIFFS'
DECEDENTS.  BOTH COMPLAINTS ALLEGE THAT THE ACTION WAS TAKEN "UNDER
COLOR OF STATE LAW" AND THAT IT DEPRIVED THE DECEDENTS OF THEIR LIVES
AND RIGHTS WITHOUT DUE PROCESS OF LAW.  FAIRLY READ, THE COMPLAINTS
ALLEGE THAT EACH OF THE ANMED DEFENDANTS, IN UNDERTAKING SUCH ACTIONS,
ACTED WITHER OUTSIDE THE SCOPE OF HIS RESPECTIVE OFFICE OR, IF WITHIN
THE SCOPE, ACTED IN AN ARBRTRARY MANNER, GROSSLY ABUSING THE LAWFUL
POWERS OF OFFICE. 

THE COMPLAINTS WERE DISMISSED BY THE DISTRICT COURT FOR LACK OF
JURISDICTION WITHOUT THE FILING OF AN ANSWER TO ANY OF THE COMPLAINTS. 
THE ONLY PERTINENT DOCUMENTATION /3/  BEFORE THE COURT IN ADDITION TO
THE COMPLAINTS WERE TWO PROCLAMATIONS ISSUED BY THE RESPONDENT
GOVERNOR.  THE FIRST PROCLAMATION ORDERED THE GUARD TO DUTY TO PROTECT
AGAINST VIOLENCE ARISING FROM WILDCAT STRIKES IN THE TRUCKING INDUSTRY;
THE OTHER RECITED AN ACCOUNT OF THE CONDITIONS PREVAILING AT KENT STATE
UNIVERSITY AT THAT TIME.  IN DISMISSING THESE COMPLAINTS FOR WANT OF
SUBJECT MATTER JURISDICTION AT THAT EARLY STAGE, THE DISTRICT COURT
HELD, AS WE NOTED EARLIER, THAT THE DEFENDANTS WERE BEING SUED IN THEIR
OFFICIAL AND REPRESENTATIVE CAPACITIES AND THAT THE ACTIONS WERE
THEREFORE IN EFFECT AGAINST THE STATE OF OHIO.  THE PRIMARY QUESTION
PRESENTED IS WHETHER THE DISTRICT COURT ACTED PREMATURELY AND HENCE
ERRONEOUSLY IN DISMISSING THE COMPLAINTS ON THE STATED GOUND, THUS
PRECLUDING ANY OPPORTUNITY FOR THE PLAINTIFFS BY SUBSEQUENT PROOF TO
ESTABLISH A CLAIM. 

WHEN A FEDERAL COURT REVIEWS THE SUFFICIENCY OF A COMPLAINT, BEFORE
THE RECIPTION OF ANY EVIDENCE WITHER BY AFFIDAVIT OR ADMISSIONS, ITS
TASK IS NECESSARILY A LIMITED ONE.  THE ISSUE IS NOT WHETHER A
PLAINTIFF WILL ULTIMATELY PREVAIL BUT WHETHER THE CLAIMANT IS ENTITLED
TO OFFER EVIDENCE TO SUPPORT THE CLAIMS.  INDEED IT MAY APPEAR ON THE
FACE OF THE PLEADINGS THAT A RECOVERY IS VERY REMOTE AND UNLIKELY BUT
THAT IS NOT THE TEST.  MOREOVER, IT IS WELL ESTABLISHED THAT, IN
PASSING ON A MOTION TO DISMISS, WHETHER ON THE GROUND OF LACK OF
JURISDICTION OVER THE SUBJECT MATTER OR FOR FAILURE TO STATE A CAUSE OF
ACTION, THE ALLEGATIONS OF THE COMPLAINT SHOULD BE CONSTRUED FAVORABLY
TO THE PLEADER. 

"IN APPRAISING THE SUFFICIENCY OF THE COMPLAINT WE FOLLOW, OF
COURSE, THE ACCEPTEDRULE THAT A COMPLAINT SHOULD NOT BE DISMISSED FOR
FAILURE TO STATE A CLAIM UNLESS IT APPEARS BEYOND DOUBT THAT THE
PLAINTIFF CAN PROVE NO SET OF FACTS IN SUPPORT OF HIS CLAIM WHICH WOULD
ENTITLE HIM TO RELIEF."  CONLEY V. GIBSON, 355 U.S. 41, 45 - 46 (1957)
(FOOTNOTE OMITTED).  SEE ALSO GARDNER V. TOLIT GOODS ASSN., 387 U.S.
167, 172 (1967). 

        II 

THE ELEVENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
PROVIDES: "THE JUDICIAL POWER OF THE UNITED STATES SHALL NOT BE
CONSTRUED TO EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR
PROSECUTED AGAINST ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER
STATE . . ."  IT IS WELL ESTABLISHED THAT THE AMENDMENT BARS SUITS NOT
ONLY AGAINST THE STATE WHEN IT IS THE NAMED PARTY BUT ALSO WHEN IT IS
THE PARTY IN FACT.  EDELMAN V. JORDON, 415 U.S 651 (1974); POINDEXTER
V. GREENHOW, 114 U.S. 270, 287 (1885); CUNNINGHAM V. MACON & BRUNSWICK
R. CO., 109 U.S. 446 (1883).  ITS APPLICABILITY "IS TO BE DETERMINED
NOT BY THE MERE NAMES OF THE TITULAR PARTIES BUT BY THE ESSENTIAL
NATURE AND EFFECT OF THE PROCEEDING, AS IT APPEARS FROM THE ENTIRE
RECORD."  EX PARTE NEW YORK, 256 U.S. 490, 500 (1921). 

HOWEVER, SINCE EX PARTE YOUNG, 209 U.S. 123 (1908), IT HAS BEEN
SETTLED THAT THE ELEVENTH AMENDMENT PROVIDES NO SHIELD FOR A STATE
OFFICIAL CONFRONTED BY A CLAIM THAT HE HAD DEPRIVED ANOTHER OF A
FEDERAL RIGHT UNDER THE COLOR OF STATE LAW.  EX PARTE YOUNG TEACHES
THAT WHEN A STATE OFFICER ACTS UNDER A STATE LAW IN A MANNER VIOLATIVE
OF THE FEDERAL CONSTITUTION, HE 

"COMES INTO CONFLICT WITH THE SUPERIOR AUTHORITY OF THAT
CONSTITUTION, AND HE IS IN THAT CASE STRIPPED OF HIS OFFICIAL OR
REPRESENTATIVE CHARACTER AND IS SUBJECTED IN HIS PERSON TO THE
CONSEQUENCES OF HIS INDIVIDUAL CONDUCT.  THE STATE HAS NO POWER TO
IMPACT TO HIM ANY IMMUNITY FROM RESPONSIBILITY TO THE SUPREME AUTHORITY
OF THE UNITED STATES."  ID., AT 159 - 160.  (EMPHASIS SUPPLIED.) 

EX PARTE YOUND, LIKE STERLING V. CONSTANTIN, 287 U.S. 378 (1932),
INVOLVED A QUESTION OF THE FEDERAL COURTS'  INJUNCTIVE POWER, NOT, AS
HERE, A CLAIM FOR MONETARY DAMAGES.  WHILE IT IS CLEAR THAT THE
DOCTRINE OF EX PARTE YOUNG IS OF NO AID TO A PLAINTIFF SEEKING DAMAGES
FROM THE PUBLIC TREASURY, EDILMAN V. JORDAN, SUPRA; KENNECOTT COPPER
CORP. V. STATE TAX COMM'N, 327 U.S. 573 (1946); FORD MOTOR CO. V. DEPT.
OF TREASURY, 323 U.S. 459 (1945); GREAT NORTHERN LIFE INSURANCE CO. V.
READ, 322 U.S. 47 (1944), DAMAGES AGAINST INDIVIDUAL DEFENDANTS ARE A
PERMISSIBLE REMEDY IN SOME CIRCUMSTANCES NOTWITHSTANDING THE FACT THAT
THEY HOLD PUBLIC OFFICE.  MYERS V. ANDERSON, 238 U.S. 368 (1915).  SEE
GENERALLY MONROE V. PAPE, 365 U.S. 167 (1961); MOOR V. COUNTY OF
ALAMEDA, 411 U.S. 639 (1973).  IN SOME SITUATIONS A DAMAGE REMEDY CAN
BE AS EFFECTIVE A REDRESS FOR THE INFRINGEMENT OF A CONSTITUTIONAL
RIGHT AS INJUNCTIVE RELIEF MIGHT BE IN ANOTHER. 

ANALYZING THE COMPLAINTS IN LIGHT OF THESE PRECEDENTS, WE SEE THAT
PETITIONERS ALLEGE FACTS THAT DEMONSTRATE THEY ARE SEEKING TO IMPOSE
INDIVIDUAL AND PERSONAL LIABILITY ON THE NAMED DEFENDANTS FOR WHAT THEY
CLAIM--BUT HAVE NOT YET ESTABLISHED BY PROOF--WAS A DEPRIVATION OF
FEDERAL RIGHTS BY THESE DEFENDANTS UNDER COLOR OF STATE LAW.  WHATEVER
THE PLAINTIFFS MAY OR MAY NOT BE ABLE TO ESTABLISH AS TO THE MERITS OF
THEIR ALLEGATIONS, THEIR CLAIMS, AS STATED IN COMPLAINTS, GIVEN THE
FAVORABLE READING REQUIRED BY THE FEDERAL RULES OF CIVIL PROCEDURE, ARE
NOT BARRED BY THE ELEVENTH AMENDMENT.  CONSEQUENTLY, THE DISTRICT COURT
ERRED IN DISMISSING THE COMPLAINTS FOR LACK OF JURISDICTION. 

        III 

THE COURT OF APPEALS RELIED UPON THE EXISTENCE OF AN ABSOLUTE
"EXECUTIVE IMMUNITY" AS AN ALTERNATIVE GROUND FOR SUSTAINING THE
DISMISSAL OF THE COMPLAINTS BY THE DISTRICT COURT.  IF THE IMMUNITY OF
A MEMBER OF THE EXECUTIVE BRANCH IS ABSOLUTE AND COMPREHENSIVE AS TO
ALL ACTS ALLEGEDLY PERFORMED WITHIN THE SCOPE OF OFFICIAL DUTY, THE
COURT OF APPEALS WAS CORRECT; IF, ON THE OTHER HAND, THE IMMUNITY IS
NOT ABSOLUTE BUT RATHER ONE THAT IS QUALIFIED OR LIMITED, AN EXECUTIVE
OFFICER MAY OR MAY NOT BE SUBJECT TO LIABILITY DEPENDING ON ALL THE
CIRCUMSTANCES THAT MAY BE REVEALED BY EVIDENCE.  THE CONCEPT OF THE
IMMUNITY OF GOVERNMENT OFFICERS FROM PERSONAL LIABILITY SPRINGS FROM
THE SAME ROOT CONSIDERATIONS THAT GENERATED THE DOCTRINE OF SOVEREIGN
IMMUNITY.  WHILE THE LATTER DOCTRINE--THAT THE "KING CAN DO NO WRONG"-
DID NOT PROTECT ALL GOVERNMENT OFFICERS FROM PERSONAL LIABILITY, THE
COMMON LAW SOON RECOGNIZED THE NECESSITY OF PERMITTING OFFICIALS TO
PERFORM THEIR OFFICIAL FUNCTIONS FREE FROM THE THREAT OF SUITS FOR
PERSONAL LIABILITY.  /4/  THIS OFFICIAL IMMUNITY APPARENTLY RESTED, IN
ITS GENESIS, ON TWO MUTUALLY DEPENDENT RATIONALES:  /5/  (1) THE
INJUSTICE, PARTICULARLY IN THE ABSENCE OF BAD FAITH, OF SUBJECTING TO
LIABILITY AN OFFICER WHO IS REQUIRED, BY THE LEGAL OBLIGATIOND OF HIS
POSITION, TO EXERCISE DISCRETION; (2) THE DANGER THAT THE THREAT OF
SUCH LIABILITY WOULD DETER HIS WILLINGNESS TO EXECUTE HIS OFFICE WITH
THE DECISIVENESS AND THE JUDGMENT REQUIRED BY THE PUBLIC GOOD. 

IN THIS COUNTRY, THE DEVELOPMENT OF THE LAW OF IMMUNITY FOR PUBLIC
OFFICIALS HAS BEEN THE PRODUCT OF CONSTITUTIONAL PROVISION AS WELL AS
LEGISLATIVE AND JUDICIAL PROCESSES.  THE FEDERAL CONSTITUTION GRANTS
ABSOLUTE IMMUNITY TO MEMBERS OF BOTH HOUSES OF THE CONGRESS WITH
RESPECT TO ANY SPEECH, DEBATE, VOTE, REPORT, OR ACTION DONE IN
SESSION.  ART. I, 6.  SEE GRAVEL V. UNITED STATES, 408 U.S. 606 (1972);
UNITED STATES V. BREWSTER, 408 U.S. 501 (1972); AND KILBOURN B.
THOMPSON, 103 U.S. 168 (1881).  THIS PROVISION WAS INTENDED TO SECURE
FOR THE LEGISLATIVE BRANCH OF THE GOVERNMENT THE FREEDOM FROM EXECUTIVE
AND JUDICIAL ENCROACHMENT WHICH HAD BEEN SECURED IN ENGLAND IN THE BILL
OF RIGHTS OF 1689 AND CARRIED TO THE ORIGINAL COLONIES.  /6/  IN UNITED
STATES V. JOHNSON, 383 U.S. 169, 182 (1966), MR. JUSTICE HARLAN NOTED; 

"THERE IS LITTLE DOUBT THAT THE INSTIGATION OF CRIMINAL CHARGES
AGAINST CRITICAL OR DISFAVORED LEGISLATORS BY THE EXECUTIVE IN A
JUDICIAL FORUM WAS THE CHIEF FEAR PROMPTING THE LONG STRUGGLE FOR
PARLIMENTARY PRIVILEGE IN ENGLAND AND, IN THE CONTEXT OF THE AMERICAN
SYSTEM OF SEPARATION OF POWERS, IS THE PREDOMINATE THRUST OF THE SPEECH
OR DEBATE CLAUSE.  IMMUNITY FOR THE OTHER TWO BRANCHES--LONG A CREATURE
OF THE COMMON LAW--REMAINED COMMITTED TO THE COMMON LAW.  SEE, E.G.,
SPALDING V. VILAS, 161 U.S. 483, 498 - 499 (1896). 

ALTHOUGH THE DEVELOPMENT OF THE GENERAL CONCEPT OF IMMUNITY, AND THE
MUTATIONS WHICH THE UNDERLYING RATIONALE HAS UNDERGONE IN ITS
APPLICATION TO VARIOUS POSTITIONS ARE NOT MATTERS OF IMMEDIATE CONCERN
HERE, IT IS IMPORTANT TO NOTE, EVEN AT THE OUTSET, THAT ONE POLICY
CONSIDERATION SEEMS TO PERVADE THE ANALYSIS: THE PUBLIC INTEREST
REQUIRES DECISIONS AND ACTION TO ENFORCE LAWS FOR THE PROTECTION OF THE
PUBLIC.  MR. JUSTICE FACKSON EXPRESSED THIS GENERAL PROPOSTITION
SUCCINCTLY, STATING "IT IS NOT A TORT FOR GOVERNMENT TO GOVERN." 
DALEHITE V. UNITED STATES, 346 U.S. 15, 57 (1953) (DISSENTING
OPINION).  PUBLIC OFFICIALS, WHETHER GOVERNORS, MAYORS OR POLICE,
LEGISLATORS OR JUDGEES, WHO FAIL TO MAKE DECISIONS WHEN THEY ARE NEEDED
OR WHO DO NOT ACT TO IMPLEMENT DECISIONS WHEN THEY ARE MADE DO NOT
FULLY AND FAITHFULLY PERFORM THE DUTIES OF THEIR OFFICES.  /7/
IMPLICIT IN THE IDEA THAT OFFICIALS HAVE SOME IMMUNITY--ABSOLUTE OR
QUALIFIED--FOR THEIR ACTS, IS A RECOGNITION THAT THEY MAY ERR.  THE
CONCEPT OF IMMUNITY ASSUMES THIS AND GOES ON TO ASSUME THAT IT IS
BETTER TO RISK SOME ERROR AND POSSIBLE INJURY FROM SUCH ERROR THAN NOT
TO DECIDE OR ACT AT ALL.  IN BARR V. MATTEO, 360 U.S. 564, 572 - 573
(1959), THE COURT OBSERVED, IN THE SOMEWHAT PARALLEL CONTEXT OF THE
PRIVILEGE OF PUBLIC OFFICERS FROM DEFAMATION ACTIONS, "THE PRIVILEGE IS
NOT A BADGE OR EMOLUMENT OF EXALTED OFFICE, BUT AN EXPRESSION OF A
POLICY DESIGNED TO AID IN THE EFFECTIVE FUNCTIONING OF GOVERNMENT." 
SEE ALSO SPALDING V. VILAS, 161 U.S., AT 498 - 499. 

FOR PRESENT PURPOSES WE NEED DETERMINE ONLY WHETHER THERE IS AN
ABSOLUTE IMMUNITY, AS THE COURT OF APPEALS DETERMINED, GOVERNING THE
SPECIFIC ALLEGATIONS OF THE COMPLAINT AGAINST THE CHIEF EXECUTIVE
OFFICER OF A STATE, THE SENIOR AND SUBORDINATE OFFICERS AND ENLISTED
PERSONNEL OF THAT STATE'S NATIONAL GUARD, AND THE PRESIDENT OF A STATE
CONTROLLED UNIVERSITY.  IF THE IMMUNITY IS QUALIFIED, NOT ABSOLUTE, THE
SCOPE OF THAT IMMUNITY WILL NECESSARILY BE RELATED TO FACTS AS YET NOT
ESTABLISHED EITHER BY AFFIDAVITS, ADMISSIONS, OR A TRIAL RECORD.  FINAL
RESOLUTION OF THIS QUESTION MUST TAKE INTO ACCOUNT THE CUNCTIONS AND
RESPONSIBILITIES OF THESE PARTICULAR DEFENDANTS IN THEIR CAPACITIES AS
OFFICERS OF THE STATE GOVERNMENT, AS WELL AS LTHE PURPOSES OF 42 U.S.C.
1983.  IN NEITHER OF THESE INQUIRIES DO WE WRITE ON A CLEAN SLATE.  IT
CAN HARDLY BE ARGUED, AT THIS LATE DATE, THAT UNDER NO CIRCUMSTANCES
CAN THE OFFICERS OF STATE GOVERNMENT BE SUBJECT TO LIABILITY UNDER THIS
STATUTE.  IN MONROE V. PAPE, SUPRA, MR. JUSTICE DOUGLAS, WRITING FOR
THE COURT, HELD THAT THE SECTION IN QUESTION WAS MEANT "TO GIVE A
REMEDY TO PARTIES DEPRIVED OF CONSTITUTIONAL RIGHTS, PRIVILEGES AND
IMMUNITIES BY AN OFFICIAL'S ABUSE OF HIS POSITION."  365 U.S., AT 172. 
THROUGH THE CIVIL RIGHTS STATUTES, CONGRESS INTENDED "TO ENFORCE
PROVISIONS OF THE FOURTEENTH AMENDMENT AGAINST THOSE WHO CARRY A BADGE
OF AUTHORITY OF A STATE AND REPRESENT IT IN SOME CAPACITY, WHETHER THEY
ACT IN ACCORDANCE WITH THEIR AUTHORITY OR MISUSE IT."  ID., AT 171 -
172. 

SINCE THE STATUTE RELIED ON THUS INCLUDED WITHIN ITS SCOPE THE
"'(MISUSE OF POWER, POSSESSED BY VIRTUE OF STATE LAW AND MADE POSSIBLE
ONLY BECAUSE THE WRONGDOER IS CLOTHED WITH THE AUTHORITY OF STATE
LAW,'"  ID., AT 184 (QUOTING UNITED STATES V. CLASSIC, 313 U.S. 299,
326 (1941)), GOVERNMENT OFFICIALS, AS A CLASS, COULD NOT BE TOTALLY
EXEMPT, BY VIRTUE OF SOME ABSOLUTE IMMUNITY, FROM LIABILITY UNDER ITS
TERMS.  INDEED, AS THE COURT ALSO INDICATED IN MONROE V. PAPE, SUPRA,
THE LEGISLATIVE HISTORY INDICATES THAT THERE IS NO ABSOLUTE IMMUNITY. 
SOON AFTER MONROE V. PAPE, MR. CHIEF JUSTICE WARREN NOTED IN PIERSON V.
RAY, 386 U.S. 547 (1967), THAT THE "LEGISLATIVE RECORD (OF 1983) GIVERS
NO CLEAR INDICATION THAT CONGRESS MEANT TO ABOLISH WHOLESALE ALL COMMON
LAW IMMUNITIES," ID., AT 554.  THE COURT HAD PREVIOUSLY RECOGNIZED THAT
THE CIVIL RIGHTS ACT OF 1871 DOES NOT CREATE CIVIL LIABILITY FOR
LEGISLATIVE ACTS BY LEGISLATORS "IN A FIELD WHERE LEGISLATORS
TRADITIONALLY HAVE POWER TO ACT."  TENNEY V. BRANDHOVE, 341 U.S. 367,
379 (1951).  NOTING THAT "THE PRIVILEGE OF LEGISLATORS TO BE FREE FROM
ARREST OR CIVIL PROCESS FOR WHAT THEY DO OR SAY IN LEGISLATIVE
PROCEEDINGS HAS TAPROOTS IN THE PARLIAMENTARY STRUGGLES OF THE
SEXTEENTH AND SEVENTEENTH CENTURIES,"  ID., AT 372, THE COURT CONCLUDED
THAT IT WAS HIGHLY IMPROBABLE THAT "CONGRESS--ITSELF A STAUNCH ADVOCATE
OF LEGISLATIVE FREEDOM--WOULD IMPINGE ON A TRADITION SO WELL GROUNDED
IN HISTORY AND REASON BY COVERT INCLUSION IN THE GENERAL LANGUAGE . .
."  OF THIS STATUTE.  ID., AT 376. 

IN SIMILAR FASHION, PIERSON V. RAY, SUPRA, EXAMINED THE SCOPE OF
JUDICIAL IMMUNITY UNDER THIS STATUTE.  NOTING THAT THE RECORD CONTAINED
NO "PROOF OR SPECIFIC ALLEGATION,"  386 U.S., AT 553, THAT THE TRIAL
JUDGE HAD "PLAYED ANY ROLE IN THESE ARRESTS AND CONVICTIONS OTHER THAN
TO ADJUDGE PETITIONERS GUILTY WHEN THEIR CASES CAME BEFORE HIS COURT,"
IBID., THE COURT CONCLUDED THAT, HAD THE CONGRESS INTENDED TO ABOLISH
THE COMMON-LAW "IMMUNITY OF JUDGES FOR ACTS WITHIN THE JUDICIAL ROLE,"
ID., AT 554, IT WOULD HAVE DONE SO SPECIFICALLY.  A JUDGE'S 

"ERRORS MAY BE CORRECTED ON APPEALS, BUT HE SHOULD NOT HAVE TO FEAR
THAT UNSATISFIED LITIGANTS MAY HOUND HIM WITH LITIGATION CHARGING
MALICE OR CORRUPTION.  IMPOSING SUCH A BURDEN ON JUDGES WOULD
CONTRIBUTE NOT TO PRICIPLED AND FEARLESS DECISION-MAKING BUT TO
INTIMIDATION."  IBID. 

THE PIERSON COURT WAS ALSO CONFRONTED WITH WHETHER IMMUNITY WAS
AVAILABLE TO THAT SEGMENT OF THE EXECUTIVE BRANCE OF A STATE GOVERNMENT
THAT IS MOST FREQUENTLY AND INTIMATELY INVOLVED IN DAY-TO-DAY CONTACTS
WITH THE CITIZENRY AND, HENCE, MOST FREQUENTLY EXPOSED TO SITUATIONS
WHICH CAN GIVE RISE TO CLAIMS UNDER 1983--THE LOCAL POLICE OFFICER. 
MR. CHIEF JUSTICE WARREN, SPEAKING FOR THE COURT, NOTED THAT THE POLICE
OFFICERS 

"DID NOT DEFEND ON THE THEORY THAT THEY BELIEVED IN GOOD FAITH THAT
IT WAS CONSTITUTIONAL TO ARREST THE MINISTERS SOLELY FOR USING THE
('WHITE ONLY') WAITING ROOM.  RATHER, THEY CLAIMED AND ATTEMPTED TO
PROVE THAT . . .(THEY ARRESTED THEM) SOLELY FOR THE PURPOSE OF
PREVENTING VIOLANCE.  THEY TESTIFIED, IN CONTRADICTION TO THE
MINISTERS, THAT A CROWD GATHERED AND THAT IMMINENT VIOLENCE WAS
LIKELY.  IF THE JURY BELIEVED THE TESTIMONY OF THE OFFICERS AND
DISBELIEVED THAT OF THE MINISTERS, AND IF THE JURY FOUND THAT THE
OFFICERS REASONABLY BELIEVED IN GOOD FAITH THAT THE ARREST WAS
CONSTITUTIONAL, THEN A VERDICT FOR THE OFFICERS WOULD FOLLOW EVEN
THOUGH THE ARREST WAS IN FACT (WITHOUT PROBABLE CAUSE AND)
UNCONSTITUTIONAL."  ID., AT 557.  THE COURT NOTED THAT THE "COMMON LAW
HAS NEVER GRANTED POLICE OFFICERS AN ABSOLUTE AND UNQUALIFIED
IMMUNITY," ID., AT 555, BUT THAT "THE PREVAILING VIEW IN THIS COUNTRY
(IS THAT) A PEACE OFFICER WHO ARRESTS SOMEONE WITH PROBABLE CAUSE IS
NOT LIABLE FOR FALSE ARREST SIMPLY BECAUSE THE INNOCENCE OF THE SUSPECT
IS LATER PROVED," IBID.; THE COURT WENT ON TO OBSERVE THAT A
"POLICEMAN'S LOT IS NOT SO UNHAPPY THAT HE MUST CHOOSE BETWEEN BEING
CHARGED WITH DERELICTION OF DUTY IF HE DOES NOT ARREST WHEN HE HAS
PROBABLE CAUSE, AND BEING MULCTED IN DAMAGES IF HE DOES."  IBID.  THE
COURT THEN HELD: 

"THAT THE DEFENSE OF GOOD FAITH AND PROBABLE CAUSE, WHICH THE COURT
OF APPEALS FOUND AVAILABLE TO THE OFFICERS IN THE COMMON-LAW ACTION FOR
FALSE ARREST AND IMPRISONMENT, IS ALSO AVAILABLE TO THEM IN THE ACTION
UNDER 1983."  ID., AT 557. 

WHEN A COURT EVALUATES POLICE CONDUCT RELATING TO AN ARREST ITS
GUIDELINE IS "GOOD FAITH AND PROBABLE CAUSE."  IBID.  IN THE CASE OF
HIGHER OFFICERS OF THE EXECUTIVE BRANCH, HOWEVER, THE INQUIRY IS FAR
MORE COMPLEX SINCE THE RANGE OF DECISIONS AND CHOICES--WHETHER THE
FORMULATION OF POLICY, OF LEGISLATION, OF BUDGETS, OR OF DAY-TO-DAY
DECISIONS--IS VIRTUALLY INFINITE.  IN COMMON WITH POLICE OFFICERS,
HOWEVER, OFFICIALS WITH A BROAD RANGE OF DUTIES AND AUTHORITY MUST
OFTEN ACT SWIFTLY AND FIRMLY AT THE RISK THAT ACTION DEFERRED WILL BE
FUTILE OR CONSTITUTE VIRTUAL ABDICATION OF OFFICE.  LIKE LEGISLATORS
AND JUDGES, THESE OFFICERS ARE ENTITLED TO RELY ON TRADITIONAL SOUCES
FOR THE FACTUAL INFORMATION ON WHICH THEY DICIDE AND ACT.  /8/  WHEN A
CONDITION OF CIVIL DISORDER IN FACT EXISTS, THERE IS OBVIOUS NEED FOR
PROMPT ACTION, AND DECISIONS MUST BE MADE IN RELIANCE ON FACTUAL
INFORMATION SUPPLIED BY OTHERS.  WHILE BOTH FEDERAL AND STATE LAWS
PLAINLY CONTEMPLATE THE USE OF FORCE WHEN THE NECESSITY ARISES, THE
DECISION TO INVOKE MILITARY POWER HAS TRADITIONALLY BEEN VIEWED WITH
SUSPICION AND SKEPTICISM SINCE IT OFTEN INVOLVES THE TEMPORARY
SUSPENSION OF SOME OF OUR MOST CHERISHED RIGHTS--GOVERNMENT BY ELECTED
CIVILIAN LEADERS, FREEDOM OF EXPRESSION, OF ASSEMBLY, AND OF
ASSOCIATION.  DECISIONS IN SUCH SITUATIONS ARE MORE LIKELY THAN NOT TO
ARISE IN AN ATMOSPHERE OF CONFUSION, AMBIGUITY, AND SWIFTLY MOVING
EVENTS AND WHEN, BY THE VERY EXISTENCE OF SOME DEGREE OF CIVIL DISORER,
THERE IS OFTEN NO CONSENSUS AS TO THE APPROPRIATE REMEDY.  IN SHORT,
SINCE THE OPTIONS WHICH A CHIEF EXECUTIVE AND HIS PRINCIPAL
SUBORDINATES MUST CONSIDER ARE FAR BROADER AND FAR MORE SUBTLE THAN
THOSE MADE BY OFFICIALS WITH LESS RESPONSIBILITY, THE RANGE OF
DISCRETION MUST BE COMPARABLY BROAD.  IN A CONTEXT OTHER THAN A 1983
SUIT, MR. JUSTICE HARLAN ARTICULATED THESE CONSIDERATIONS IN BARR V.
MATTEO, SUPRA: 

     "TO BE SURE, THE OCCASIONS UPON WHICH THE ACTS OF THE HEAD OF

  AN EXECUTIVE DEPARTMENT WILL BE PROTECTED BY THE PRIVILEGE ARE

  DOUBTLESS FAR BROADER THAN IN THE CASE OF AN OFFICER WHITH LESS

  SWEEPING FUNCTIONS.  BUT THAT IS BECAUSE THE HIGHER THE POST, THE

  BROADER THE RANGE OF RESPONSIBILITIES AND DUTIES, AND THE WIDER

  THE SCOPE OF DISCRETION, IT ENTAILS.  IT IS NOT THE TITLE OF HIS

  OFFICE BUT THE DUTIES WITH WHICH THE PARTICULAR OFFICER SOUGHT TO

  BE MADE TO RESPOND IN DAMAGES IS ENTRUSTED--THE RELATION OF THE

  ACT COMPLAINED OF TO 'MATTERS COMMITTED BY LAW TO HIS CONTROL OR

  SUSPERVISION,'  SPALDING V. VILAS, SUPRA, AT 498--WHICH MUST

  PROVIDE THE GUIDE IN DELINEATING THE SCOPE OF THE RULE WHICH

  CLOTHES THE OFFICIAL ACTS OF THE EXECUTIVE OFFICER WITH IMMUNITY

  FROM CIVIL DEFAMATION SUITS."  360 U.S., AT 573 - 574. 

THESE CONSIDERATIONS SUGGEST THAT, IN VARYING SCOPE, A QUALIFIED
IMMUNITY IS AVAILABLE TO OFFICERS OF THE EXECUTIVE BRANCH OF
GOVERNMENT, THE VARIATION BEING DEPENDENT UPON THE SCOPE OF DISCRETION
AND RESPONSIBILITIES OF THE OFFICE AND ALL THE CIRCUMSTANCES AS THEY
REASONABLY APPEARED AT THE TIME OF THE ACTION ON WHICH LIABILITY IS
SOUGHT TO BE BASED.  IT IS THE EXISTENCE OF REASONABLE GROUNDS FOR THE
BELIEF FORMED AT THE TIME AND IN LIGHT OF ALL THE CIRCUMSTANCES,
COUPLED WITH GOOD-FAITH BELIEF, THAT AFFORDS A BASIS FOR QUALIFIED
IMMUNITY OF EXECUTIVE OFFICERS FOR ACTS PERFORMED IN THE COURSE OF
OFFICIAL CONDUCT.  MR. JUSTICE HOMLES SPOKE OF THIS, STATING: 

     "NO DOUBT THERE ARE CASES WHERE THE EXPERT ON THE SPOT MAY BE

  CALLED UPON TO JUSTIFY HIS CONDUCT LATER IN COURT,

  NOTWITHSTANDING THE FACT THAT HE HAD SOLE COMMAND AT THE TIME AND

  ACTED TO THE BEST OF HIS KNOWLEDGE.  THAT IS THE POSITION OF THE

  CAPTAIN OF A SHIP.  BUT EVEN IN THAT CASE GREAT WEIGHT IS GIVEN

  TO HIS DETERMINATION AND THE MATTER IS TO BE JUDGED ON THE FACTS

  AS THEY APPEARED THEN AND NOT MERELY IN THE LIGHT OF THE EVENT." 

  (CITATIONS OMITTED.)  MOYER V. PEABODY, 212 U.S. 78, 85 (1909). 

UNDER THE CRITERIA DEVELOPED BY PRECEDENTS OF THIS COURT, 1983 WOULD
BE DRAINED OF MEANING WERE WE TO HOLD THAT THE ACTS OF A GOVERNOR OR
OTHER HIGH EXECUTIVE OFFICER HAVE "THE QUALITY OF A SUPREME AND
UNCHANGEABLE EDICT, OVERRIDING ALL CONFLICTING RIGHTS OF PROPERTY AND
UNREVIEWABLE THROUGH THE JUDICIAL POWER OF THE FEDERAL GOVERNMENT." 
STERLING V. CONSTANTIN, 287 U.S., AT 397.  IN STERLING, MR. JUSTICE
HIGHES PUT IT IN THESE TERMS: 

     "IF THIS EXTREME POSITION COULD BE DEEMED TO BE WELL TAKEN, IT

  IS MANIFEST THAT THE FIAT OF A STATE GOVERNOR, AND NOT THE

  CONSTITUTION OF THE UNITED STATES, WOULD BE THE SUPREME LAW OF

  THE LAND; THAT THE RESTRICTIONS OF THE FEDERAL CONSTITUTION UPON

  THE EXERCISE OF STATE POWER WOULD BE BUT IMPOTENT PHRASES, THE

  FUTILITY OF WHICH THE STATE MAY AT ANY TIME DISCLOSE BY THE

  SIMPLE PROCESS OF TRANSFERRING POWERS OF LEGISLATION TO THE

FOVERNOR TO BE EXERCISED BY HIM, BEYOND CONTOL, UPON HIS

ASSERTION OF NECESSITY.  UNDER OUR SYSTEM OF GOVERNMENT, SUCH A

  CONCLUSION IS OBVIOUSLY UNTENABLE.  AVENUE OF ESCAPE FROM THE

  PARAMOUNT AUTHORITY OF THE FEDERAL CONSTITUTION.  WHEN THERE IS A

  SUBSTANTIAL SHOWING THAT THE EXERTION OF STATE POWER HAS

  OVERRIDDEN PRIVATE RIGHTS SECURED BY THAT CONSTITUTION, THE

  SUBJECT IS NECESSARILY ONE FOR JUDICIAL INQUIRY IN AN APPROPRIATE

  PROCEEDING DIRECTED AGAINST THE INDIVIDUALS CHARGED WITH THE

  TRANSGRESSION."  ID., AT 397 - 398. 

GILLIGAN V. MORGAN, BY NO MEANS INDICATES A CONTRARY RESULT. 
INDEED, THERE WE SPECIFICALLY NOTED THAT WE NEITHER HELD NOR IMPLIED
"THAT THE CONDUCT OF THE NATIONAL GUARD IS ALWAYS BEYOND JUDICIAL
REVIEW OR THAT THERE MAY NOT BE ACCOUNTABILITY IN A JUDICIAL FORUM FOR
VIOLATIONS OF LAW OR FOR SPECIFIC UNLAWFUL CONDUCT BY MILITARY
PERSONNEL, WHETHER BY WAY OF DAMAGES OR INJUNCTIVE RELIEF."  413 U.S.,
AT 11 - 12.  (FOOTNOTE OMITTED.)  SEE GENERALLY LAIRD V. TATUM, 408
U.S. 1, 15 - 16 (1972); DUNCAN V. KAHANAMOKU, 327 U.S. 304 (1946). 

      IV 

THESE CASES, IN THEIR PRESENT POSTURE, PRESENT NO OCCASION FOR A
DEFINITIVE EXPLORATION OF THE SCOPE OF IMMUNITY AVAILABLE TO STATE
EXECUTIVE OFFICIALS NOR, BECAUSE OF THE ABSENCE OF A FACTUAL RECORD, DO
THEY PERMIT A DETERMINATION AS TO THE APPLICABILITY OF THE FOREGOING
PRINCIPLES TO THE RESPONDENTS HERE.  THE DISTRICT COURT ACTED BEFORE
ANSWERS WERE FILED AND WITHOUT ANY EVIDENCE OTHER THAN THE COPIES OF
THE PROCLAMATIONS ISSUED BY REPONDENT RHODES AND BRIEF AFFIDAVITS OF
THE ADJUTANT GENERAL AND HIS ASSISTANT.  IN DISMISSING THE COMPLAINTS,
THE DISTRICT COURT AND THE COURT OF APPEALS ERRONEOUSLY ACCEPTED AS A
FACT THE GOOD FAITH OF THE GOVERNOR, AND TOOK JUDICIAL NOTICE THAT "MOB
RULE EXISTED AT KENT STATE UNIVERSITY."  THERE WAS NO OPPORTUNITY
AFFORDED PETITIONERS TO CONTEST THE FACTS ASSUMED IN THAT CONCLUSION. 
THERE WAS NO EVIDENCE BEFORE THE COURTS FROM WHICH SUCH A FINDING OF
GOOD FAITH COULD BE PROPERLY MADE AND, IN THE CIRCUMSTANCES OF THESE
CASES, SUCH A DISPOSITIVE CONCLUSION COULD NOT BE JUDICALLY NOTICED. 
WE CAN READILY GRANT THAT A DECLARATION OF EMERGENCY BY THE CHIEF
EXECUTIVE OF A STATE IS ENTITLED TO GREAT WEIGHT BUT IT IS NOT
CONCLUSIVE.  STERLING V. CONSTANTIN, SUPRA. 

THE DOCUMENTS PROPERLY BEFORE THE DISTRICT COURT AT THIS EARLY
PLEADING STAGE SPECIFICALLY PLACED IN ISSUE WHETHER THE GOVERNOR AND
HIS SUBORDINATE OFFICERS WERE ACTING WITHIN THE SCOPE OF THEIR DUTIES
UNDER THE CONSTITUTION AND LAWS OF OHIO; WHETHER THEY ACTED WITHIN THE
RANGE OF DISCRETION PERMITTED THE HOLDERS OF SUCH GOOD FAITH UNDER OHIO
LAW AND WHETHER THEY ACTED IN GOOD FAITH BOTH IN PROCLAIMING AN
EMERGENCY AND AS TO THE ACTIONS TAKEN TO COPE WITH THE EMERGENCY SO
DECLARED.  SIMILARLY, THE COMPLAINTS PLACE DIRECTLY IN ISSUE WHETHER
THE LESSER OFFICERS AND ENLISTED PERSONNEL OF THE GUARD ACTED IN GOOD
FAITH OBEDIENCE OT THE ORDERS OF THEIR SUPERIORS.  FURTHER PROCEEDINGS,
EITHER BY WAY OF SUMMARY JUDGMENT OR BY TRIAL ON THE MERITS, ARE
REQUIRED.  THE COMPLAINING PARTIES ARE ENTITLED TO BE HEARD MORE FULLY
THAN IS POSSIBLE ON A MOTION TO DISMISS A COMPLAINT.     WE INTIMATE NO
EVALUATION WHATEVER AS TO THE MERITS OF THE PETITIONERS' CLAIMS OR AS
TO WHETHER IT WELL BE POSSIBLE TO SUPPORT THEM BY PROOF.  WE HOLD ONLY
THAT, ON THE ALLEGATIONS OF THEIR RESPECTIVE COMPLAINTS, THEY WERE
ENTITLED TO HAVE THEM JUDICIALLY RESOLVED. 

THE JUDGMENTS OF THE COURT OF APPEALS ARE REVERSED AND THE CASES ARE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  413 U.S. 919 (1973). 

/2/  THE KRAUSE COMPLAINT STATES THAT THE PLAINTIFF IS A CITIZEN OF
PENNSYLVANIA AND EXPRESSLY INVOKES FEDERAL DIVERSITY JURISDICTION UNDER
28 U.S.C. 1332.  THE MILLER COMPLAINT STATES THAT THE PLAINTIFF IS A
CITIZEN OF NEW YORK.  WHILE THE COMPLAINT DOES NOT SPECIFICALLY REFER
TO JURISDICTION UNDER 28 U.S.C. 1332, IT ALLEGES FACTS WHICH CLEARLY
SUPPORT DIVERSITY JURISDICTION.  APP. IN NO. (2 - 1318, P. 85.  SEE
FED. RULE CIV. PROC. 8 (A)(1). 

/3/  IN THE KRAUSE CASE, THE ADJUTANT GENERAL AND HIS ASSISTANT ALSO
FILED BRIEF AFFIDAVITS.  THESE SEEM BASICALLY DIRECTED TO THE MOTION
FOR A CHANGE OF VENUE AND, IN ANY EVENT, MAKE NO SUBSTANTIAL
CONTRIBUTION TO THE JURISDICTIONAL OR IMMUNITY QUESTIONS. 

/4/  IN ENGLAND LEGISLATIVE IMMUNITY WAS SECURED AFTER A LONG
STRUGGLE, BY THE BILL OF RIGHTS OF 1689: "THAT THE FREEDOM OF SPEECH,
AND DEBATES OR PROCEEDINGS IN PARLIAMENT, OUGHT NOT TO BE IMPEACHED OR
QUESTIONED IN ANY COURT OR PLACE OUT OF PARLIAMENT," 1 W. & M., SESS.
2, C.2.  SEE STOCKDALE V. HANSARD, 9 AD. & E. 1, 113 - 114, 112 ENG.
REP. 1112, 1155 - 1156 (Q. B. 1839).  THE ENGLISH EXPERIENCE, OF
COURSE, GUIDED THE DRAFTERS OF OUR "SPEECH OR DEBATE"  CLAUSE.  SEE
TENNEY V. BRANDHOVE, 341 U.S. 367, 672 - 375 (1951); UNITED STATES V.
JOHNSON, 383 U.S. 169, 177 - 178, 181 (1966); UNITED STATES V.
BREWSTER, 408 U.S. 501 (1972). 

IN REGARD TO JUDICIAL IMMUNITY, HOLDSWORTH NOTES: "IN THE CASE OF
COURT OF RECORD . . . IT WAS HELD, CERTAINLY AS EARLY AS EDWARD III'S
REIGN, THAT A LITIGANT COULD NOT GO BEHIND THE RECORD, IN ORDER TO MAKE
A JUDGE CIVILLY OR CIMINALLY LIABLE FOR AN ABUSE OF HIS JURISDICTION." 
6 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 235 (1927).  THE MODERN
CONCEPT OWES MUCH TO THE ELABORATION AND RESTATEMENT OF COKE AND OTHER
JUDGES OF THE SIXTEENTH AND EARLY SEVENTEENTH CENTURIES.  ID., AT 234
ET SEQ. SEE FLOYD V. BARKER, 12 CO. REP. 23, 77 ENG. REP. 1305 (K.B.
1607).  THE IMMUNITY OF THE CROWN HAS TRADITIONALLY BEEN OF A MORE
LIMITED NATURE.  OFFICERS OF THE CROWN WERE AT FIRST INSULATED FROM
RESPONSIBILITY SINCE THE KING COULD CLAIM THE ACT AS HIS OWN.  THIS
ABSOLUTE INSULATION WAS GRADUALLY ERODED.  STATUTE OF WESTMINSTER I, 3
EDW.  1, C.24 (1275) (REPEALED):  STATUTE OF WESTMINSTER II, 13 EDW.  1
C. 13 (1285) (REPEALED).  THE DEVELOPMENT OF LIABILITY--ESPECIALLY
DURING THE TIMES OF THE TUDORS AND STUARTS WAS SLOW; SEE, E.G., PUBLIC
OFFICERS PROTECTION ACT, 7 JAC.  1, C. 5 (1606) (REPEALED).  WITH THE
ACCESSION OF WILLIAM AND MARY, THE LIABILITY OF OFFICERS SAW WHAT JAFFE
HAS TERNED "A MOST REMARKABLE AND SIGNIFICANT EXTENSION" IN ASHBY V.
WHITE, 1 BRO. P.C. 62, 1 ENG. REP. 417 (H.L. 1704), REVERSING 6 MOD.
45, 87 ENG. REP. 808 (Q.B. 1703).  JAFFE, SUITS AGAINST GOVERNMENTS AND
OFFICERS: SOVEREIGN IMMUNITY, 77 HARV. L. REV. 1, 14 (1963).  A. DICEY,
THE LAW OF THE CONSTITUTION 193 - 194 (10TH ED. 1959) (FOOTNOTES
OMITTED).  SEE GENERALLY BARR V. MATTEO, 360 U.S. 564 (1959).  GOOD
FAITH PERFORMANCE OF A DISCRETIONARY DUTY HAD REMAINED, IT SEEMS, A
DEFENSE.  SEE JAFFE, DUITS AGAINST GOVERNMENTS AND OFFICERS; DANAGE
ACTIONS, 77 HARV. L. REV. 209, 216 (1963).  SEE ALSO SPALDING V. VILAS,
161 U.S. 483, 493 ET SEQ (1896). 

/5/  JAFFE, SUITS AGAINST GOVERNMENTS AND OFFICERS: DAMAGE ACTIONS,
77 HARV. L. REV., AT 223. 

/6/  MR. JUSTICE FRANKFURTER NOTED IN TENNEY V. BRANDHOVE, 341 U.S.,
AT 373: "THE PROVISION IN THE UNITED STATES CONSTITUTION WAS A
REFLECTION OF POLITICAL PRINCIPLES ALREADY FIRMLY ESTABLISHED IN THE
STATES.  THREE STATE CONSTITUTIONS ADOPTED BEFORE THE FEDERAL
CONSTITUTION SPECIFICALLY PROTECTED THE PRIVILEGE."  SEE COFFIN V.
COFFIN, 4 MASS. 1, 27 (1808).  SEE ALSO KILBOURN V. THOMPSON, 103 U.S.
168, 202 (1881). 

/7/  FOR EXAMPLE, IN FLOYD V. BARKER, SUPRA, COKE EMPHASIZED THAT
JUDGES "ARE ONLY TO MAKE AN ACCOUNT TO GOD AND THE KING"  SINCE A
CONTRARY RULE "WOULD TEND TO THE SCANDAL AND SUBVERSION OF ALL
JUSTICE.  AND THOSE WHO ARE THE MOST SINCERE, WOULD NOT BE FREE FROM
CONTINUAL CALUMNIATIONS . . ."  12 CO. REP., AT 25, 77 ENG. REP., AT
1307.  SEE ALSO YASELLI V. GOFF, 12 F.2D 396, 399 (CA2 1936), AFF'D PER
CURIAM, 275 U.S 503 (1927).  IN SPALDING V. VILAS, 161 U.S., AT 498,
THE COURT NOTED:  "IN EXERCISING THE FUNCTIONS OF HIS OFFICE, THE HEAD
OF AN EXECUTIVE DEPARTMENT, KEEPING WITHIN THE LIMITS OF HIS AUTHORITY,
SHOULD NOT BE UNDER AN APPREHENSION THAT THE MOTIVES THAT CONTROL HIS
OFFICIAL CONDUCT MAY, AT ANY TIME, BECOME THE SUBJECT OF INQUIRY IN A
CIVIL SUIT FOR DAMAGES.  IT WOULD SERIOUSLY CRIPPLE THE PROPER AND
EFFECTIVE ADMINISTRATION OF PUBLIC AFFAIRS AS ENTRUSTED TO THE
EXECUTIVE BRANCH OF THE GOVERNMENT, IF HE WERE SUBJECTED TO ANY SUCH
RESTRAINT." 

/8/  IN SPALDING V. VILAS, 161 U.S., AT 498, THE COURT, AFTER
DISCUSSING THE EARLY PRINCIPLES OF JUDICIAL IMMUNITY IN THE COUNTRY,
CF. RANDALL V. BRIGHAM, 7 WALL.  523, 535 (1869), BRADLEY V. FISHER, 13
WALL.  335 (1872), AND YATES V. LANSING, 5 JOHNS.  282 (N.Y. 1810),
NOTED THE SIMILARITY IN THE CONTROLLING POLICY CONSIDERATIONS IN THE
CASE OF HIGH ECHELON EXECUTIVE OFFICERS AND JUDGES: 

"WE ARE OF OPINION THAT THE SAME GENERAL CONSIDERATIONS OF PUBLIC
POLICY AND CONVENIENCE WHICH DEMAND FOR JUDGES OF COURTS OF SUPERIOR
JURISDICTION IMMUNITY FROM CIVIL SUITS FOR DAMAGES ARISING FROM ACTS
DONE BY THEM IN THE COURSE OF THE PERFORMANCE OF THEIR JUDICIAL
FUNCTIONS, APPLY TO A LARGE EXTENT TO OFFICIAL COMMUNICATIONS MADE BY
HEADS OF EXECUTIVE DEPARTMENTS WHEN ENGAGED IN THE DISCHARGE OF DUTIES
IMPOSED UPON THEM BY LAW.  THE INTERESTS OF THE PEOPLE REQUIRE THAT DUE
PROTECTION BE ACCORDED TO THEM IN RESPECT OF THEIR OFFICIAL ACTS." 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THESE CASES. 

MICHAEL E. GELTNER ARGUED THE CAUSE FOR PETITIONER IN NO. 72 - 914. 
WITH HIM ON THE BRIEFS WERE LEONARD J. SCHWARTZ, MELVIN L. WULD, JOEL
M. GORA, NELSON G. KARL, NIKI Z. SCHWARTZ, AND WALTER S. HAFFNER. 
STEVEN A. SINDELL ARGUED THE CAUSE FOR PETITIONERS IN NO. 72 - 1318. 
WITH HIM ON THE BRIEF WERE JOSEPH M. SINDELL AND JOSEPH KELNER. 

CHARLES E. BROWN ARGUED THE CAUSE FOR RESPONDENTS IN NO. 72 - 914. 
WITH HIM ON THE BRIEF WERE ROBERT F. HOWARTH, JR., DELMAR CHRISTENSEN,
AND C.D. LAMBROS.  R. BROOKE ALLOWAY ARGUED THE CAUSE FOR RESPONDENTS
IN NO. 72 - 1318.  WITH HIM ON THE BRIEF WAS JOHN M. MCELROY.  BRIEFS
OF AMICI CURIAE URGING REVERSAL IN BOTH CASES WERE FILED BY MARIO G.
OBLEDO AND SANFORD JAY ROSEN FOR THE MEXICAN AMERICAN LEGAL DEFENSE AND
EDUCATIONAL FUND, AND BY DAVID E. ENGADAHL FOR THE NATIONAL COUNCIL OF
THE CHURCHES OF CHRIST IN THE U.S.C. ET AL., CARL J. CHARACTER FILED A
BRIEF FOR THE NATIONAL BAR ASSN. AS AMICUS CURAE URGING REVERSAL IN NO.
72 - 1318. 
..END :














SUPER TIRE ENGINEERING CO. V. MCCORKLE, 416 U.S. 115 


       SUPER TIRE ENGINEERING CO. ET AL. V. MCCORKLE ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 72 - 1554.  ARGUED JANUARY 15, 1974--DECIDED APRIL 16,

1974; 469 F.2D 911, REVERSED AND REMANDED. 


    WORKERS ENGAGED IN AN ECONOMIC STRIKE IN NEW JERSEY ARE

  ELIGIBLE FOR PUBLIC ASSISTANCE THROUGH STATES WELFARE PROGRAMS. 

  PETITIONERS, EMPLOYERS WHOSE PLANTS WERE STRUCK, BROUGHT THIS

  SUIT FOR INJUCTIVE AND DECLARATORY RELIEF AGAINST SUCH

  ELIGIBILITY, CLAIMING THAT THE REGULATIONS ACCORDING BENEFITS TO

  STRIKING WORKERS WERE INVALID BECAUSE THEY INTERFERED WITH THE

  FEDERAL LABOR POLICY OF FREE COLLECTIVE BARGINING EXPRESSED IN

  THE LABOR MANAGEMENT RELATIONS ACT AND WITH OTHER FEDERAL POLICY

  SET FORTH IN THE SOCIAL SECURITY ACT.  BEFORE THE CASE WAS TRIED,

THE LABOR DISPUTE WAS SETTLED AND THE STRIKE ENDED.  THE DISTRICT

  COURT, REJECTING THE RESPONDENT UNION'S CONTENTION THAT THE CASE

  HAD BEEN MOOTED, DISMISSED THE COMPLAINT ON THE GROUNDS THAT

  CONGRESS WAS THE APPROPRIATE FORUM FOR THE CLAIM AND THAT THE

  CHALLENGED LAWS DID NOT VIOLATE THE SUPREMACY CLAUSE.  THE COURT

  OF APPEALS REMANDED THE CASE WITH INSTRUCTIONS TO VACATE AND

  DISMISS FOR MOOTNESS.  HELD: TO THE EXTENT THAT DECLARATORY

  RELIEF WAS SOUGHT, THE CASE-OR-CONTROVERSY REQUIREMENT OF ART.

  III, 2, AND THE DECLARATORY JUDGMENT ACT IS COMPLETELY

  SATISFIED.  PP. 121 - 127. 

     (A) EVEN THOUGH THE CASE FOR AN INJUNCTION DISSOLVED WITH THE

  SETTLEMENT OF THE STRIKE AND THE STRIKERS' RETURN TO WORK, THE

  PETITIONERS AND RESPONDENT STATE OFFICIALS MAY STILL RETAIN

  SUFFICIENT INTERESTS AND INJURY TO JUSTIFY DECLARATORY RELIEF. 

  PP. 121 - 122. 

     (B) THE CHALLENGED GOVERNMENTAL ACTION IS NOT CONTINGENT UPON

  EXECUTIVE DISCRETION AND HAS NOT CEASED, BUT IS A FIXED AND

  DEFINITE POLICY WHICH, BY ITS CONTINUING PRESENCE, CASES WHAT MAY

  WELL BE A SUBSTANTIAL ADVERSE EFFECT ON PETITIONERS' INTERESTS. 

  OIL WORKERS UNIONS V. MISSOURI, 361 U.S. 363; HARRIS V. BATTLE,

  348 U.S. 803, DISTINGUISHED.  PP. 122 - 125. 

     (C) IF JUDICIAL REVIEWS WERE CONDITIONED ON THE EXISTENCE OF
AN

  ECONOMIC STRIKE, THIS CASE MOST CERTAINLY WOULD BE OF THE TYPE

PRESENTING AN ISSUE "CAPABLE OF REPETITION, YET EVADING REVIEW,"

  SOUTHERN PAC. TERMINAL CO. V. ICC, 219 U.S. 498, 515.  IT

  SUFFICES THAT THE LITIGANT SHOW AND IMMEDIATE AND DEFINITE

  GOVERNMENTAL ACTION OR POLICY THAT HAS ADVERSELY AFFECTED AND

  CONTINUES TO AFFECT A PRESENT INTEREST, SINCE TO REQUIRE THE

  PRESENCE OF AN ACTIVE LABOR DISPUTE WOULD UNDULY TAX THE LITIGANT

  BY SLIGHTING CLAIMS OF ADVERSE INJURY FROM ACTUAL OR IMMEDIATELY

  THREATENED GOVERMENTAL ACTION, AND SINCE OTHERWISE A STATE POLICY

  AFFECTING A COLLECTIVE-BARGAINING ARRANGEMENT BUT NOT INVOLVING A

FINE OR OTHER PENALTY COULD BE ONLY RARELY ADJUDICATED, AND THE

  PURPOSES OF THE DECLARATORY JUDGMENT ACT WOULD BE FRUSTRATED. 

  PP. 125 - 127. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, WHITE, AND MARSHALL, JJ., JOINED.  STEWART, J.,

  FILED A DISSENTING OPINION, IN WHICH BURGER, C.J., AND POWELL AND

 REHNQUIST, JJ., JOINED, POST, P. 127. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

IN NEW JERSEY, WORKERS ENGAGED IN AN ECONOMIC STRIKE ARE ELIGIBLE
FOR PUBLIC ASSISTANCE THROUGH STATE WELFARE PROGRAMS.  EMPLYERS WHOSE
PLANTS WERE STRUCK INSTITUTED THIS SUIT FOR INJUNCTIVE AND DECLARATORY
RELIEF AGAINST SUCH ELIGIBILITY.  BEFORE THE CASE WAS TRIED, THE LABOR
DISPUTE WAS SETTLED AND THE STRIKE CAME TO AN END.  THE QUESTION
PRESENTED IS WHETHER A "CASE" OR "CONTROVERSY"  STILL EXISTS, WITHIN
THE MEANING OF ART. III, 2, OF THE CONSTITUTION, AND OF THE DECLARATORY
JUDGMENT ACT, 28 U.S.C. 2201 - 2202. 

        I 

A COLLECTIVE-BARGAINING AGREEMENT BETWEEN PETITIONERS SUPER TIRE
ENGINEERING COMPANY AND SUPERCAP CORPORATION, AFFILIATED NEW JERSEY
CORPORATIONS, /1/  AND TEAMSTERS LOCAL UNION NO. 676, THE CERTIFIED
COLLECTIVE-BARGAINING REPRESENTATIVE FOR THE TWO CORPORATIONS'
PRODUCTION AND MAINTENANCE EMPLYEES, EXPIRED ON MAY 14, 1971.  BECAUSE
A NEW AGREEMENT HAD NOT AS YET BEEN REACHED, THE EMPLYEES PROMPTLY WENT
OUT ON STRIKE.  SOME FOUR WEEKS LATER, WITH THE STRIKE CONTINUING, THE
TWO CORPORATIONS, AND THEIR PRESIDENT AND CHIEF EXECUTIVE OFFICER,
FILED THE PRESENT SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
DISTICT OF NEW JERSEY AGAINST VARIOUS NEW JERSEY OFFICALS.  /2/ 

THE COMPALINT ALLEGED THAT MANY OF THE STRIKING EMPLOYEES HAD
RECEIVED AND WOULD CONTINUE TO RECEIVE PUBLIC ASSISTANCE THROUGH TWO
NEW JERSEY PUBLIC WELFARE PROGRAMS, /3/  PURSUANT TO REGULATIONS ISSUED
AND ADMINISTERED BY THE NAMED DEFENDENTS.  THE PETITIONERS SOUGHT A
DECLARATION THAT THESE INTERPRETIVE REGULATIONS, /4/  ACCORDING
BENEFITS TO STRIKING WORKERS, WERE NULL AND VOID BECAUSE THEY
CONSTITUTED AN INTERFERENCE WITH THE FEDERAL LABOR POLICY OF FREE
COLLECTIVE BARGAINING EXPRESSED IN THE LABOR MANAGEMENT RELATIONS ACT,
1947, 29 U.S.C. 141 ET SEQ., AND WITH OTHER FEDERAL POLICY PRONOUNCED
IN PROVISIONS OF THE SOCIAL SECURITY ACT OF 1935, VIZ., 42 U.S.C. 602
(A)(8)(C), 606 (E)(1), AND 607 (B)(1)(B).  /5/  THE PETITIONERS ALSO
SOUGHT INJUCTIVIE RELIEF AGAINST THE NEW JERSEY WELFARE ADMINISTRATORS'
MAKING PUBLIC FUNDS AVAILABLE TO LABOR UNION MEMBERS ENGAGED IN THE
STRIKE. 

WITH THEIR COMPLAINT, THE PETITIONERS FILED A MOTION FOR A
PRELIMINARY INJUNCTION.  THE SUPPORTING AFFIDAVIT BY THE INDIVIDUAL
PETITIONER RECITED THE EXPIRATION OF THE COLLECTIVE-BARGAINING
AGREEMENT, THE FAILURE OF THE PARTIES TO REACH A NEW AGREEMENT, THE
COMMENCEMENT AND CONTINUATION OF THE STRIKE, THE APPLICATION BY MANY OF
THE STRIKERS FOR STATE WELFARE BENEGITS, AND THEIR RECEIPT OF SUCH
BENEFITS FROM THE BEGINNING OF THE STRIKE TO THE DATE OF THE
AFFIDAVIT.  THE AFFIANT FURTHER STATED THAT THE AVAILABILITY OF THESE
BENEFITS INTERFERED WITH AN INFRINGED UPON FREE COLLECTIVE BARGAINING
AS GUARANTEED BY CONGRESS AND "HARDENED THE RESOLVE OF THE SAID
STRIKERS TO REMAIN OUT OF WORK IN SUPPORT OF THEIR BARGAINING DEMANDS,"
APP. 32, AND, IN ADDITION, THAT 

"THE CURRENT STRIKE WILL UNDOUBTEDLY BE OF LONGER DURATION THAN
WOULD HAVE OTHERWISE BEEN THE CASE; THAT THE IMPACT OF THE GRANT OF
WELFARE BENEFITS AND PUBLIC ASSISTANCE TO THE STRIKERS INVOLVED HAS
RESULTED IN THE STATE OF NEW JERSEY SUBSIDIZING ONE PARTY TO THE
CURRENT LABOR DISPUTE; AND THAT SUCH SUBSIDIZATION BY THE STATE HAS
RESULTED IN UPSETTING THE ECONOMIC BALANCE BETWEEN EMPLOYER AND
EMPLOYEES OTHERWISE OBTAINED IN SUCH A LABOR DISPUTE."  IBID. 

AT THE HEARING HELD ON JUNE 24 ON THE MOTION FOR PRELIMINARY
INJUNCTION, THE UNION, NOW A RESPONDENT HERE, WAS PERMITTED TO
INTERVENE.  APP. 37.  COUNSEL FOR THE UNION CONTENDED THAT "THIS ENTIRE
MATTER . . . HAS BEEN MOOTED" BECAUSE "THESE EMPLOYEES VOTED TO RETURN
TO WORK AND ARE SCHEDULED TO RETURN TO WORK TOMORROW MORINGING."  /6/
APP. 39.  THE DISTRICT COURT, NONETHELESS, PROCEEDED TO THE MERITS OF
THE DISPUTE AND, ON THE BASIS OF THE HOLDING IN ITT LAMP DIVISION V.
MINTER, 435 F.2D 989 (CA1 1970), CERT. DENIED, 402 U.S. 933 (1971),
RULED THAT THE APPROPRAITE FORUM FOR THE PETITIONERS' CLAIM WAS THE
CONGRESS, AND THAT THE NEW JERSEY PRACTICE OF ACCORDING AID TO STRIKING
WORKERS WAS NOT VIOLATIVE OF THE SUPREMACY CLAUSE OF THE CONSTITUTION. 
THE COURT DENIED THE MOTION FOR PRELIMINARY INJUNCTION AND DISMISSED
THE COMPLAINT.  APP. 45 - 46.  ON APPEAL, THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT, BY A DIVIDED VOTE, DID NOT REACH THE
MERITS BUT REMANDED THE CASE WITH INSTRUCTIONS TO VACATE AND DISMISS
FOR MOOTNESS.  469 F.2D 911, 922 (1972).  WE GRANTED CERTIORARI TO
CONSIDER THE MOOTNESS ISSUE.  414 U.S. 817 (1973). 

        II 

THE RESPONDENT UNION INVITES US TO CONCLUDE THAT THIS CONTROVERSY
BETWEEN THE PETITIONERS AND THE STATE BECAME NOOT WHEN THE PARTICULAR
ECONOMIC STRIKE TERMINATED UPON THE EXECUTION OF THE NEW COLLECTIVE
BARGAINING AGREEMENT AND THE RETURN OF THE STRIKERS TO WORK IN LATE
JUNE.  THAT CONCLUSION, HOWEVER, IS APPROPRIATE WITH RESPECT TO ONLY
ONE ASPECT OF THE LAWSUIT, THAT IS, THE REQUEST FOR INJUNCTIVE RELIEF
MADE IN THE CONTEXT OF OFFICIAL STATE ACTION DURING THE PENDENCY OF THE
STRIKE. 

THE PETITIONERS HERE HAVE SOUGHT, FROM THE VERY BEGINNING,
DECLARATORY RELIEF AS WELL AS AN INJUNCTION.  CLEARLY, THE DISTRICT
COURT HAS "THE DUTY TO DECIDE THE APPROPRIATENESS AND THE MERITS OF THE
DECLARATORY REQUEST IRRESPECTIVE OF ITS CONCLUSION AS TO THE PROPRIETY
OF THE ISSUANCE OF THE INJUNCTION."  ZWICKLER V. KOOTA, 389 U.S. 241,
254 (1967); ROE V. WADE, 410 U.S. 113, 166 (1973); STEFFEL V. THOMPSON,
415 U.S. 452 468-469 (1974).  THUS, EVEN THOUGH THE CASE FOR AN
INJUNCTION DISSOLVED WITH THE SUBSEQUENT SETTLEMENT OF THE STRIKE AND
THE STRIKERS'  RETURN TO WORK, THE PARTIES TO THE PRINCIPAL
CONTROVERSY, THAT IS, THE CORPORATE PETITIONERS AND THE NEW JERSEY
OFFICIALS, MAY STILL RETAIN SUFFICIENT INTERESTS AND INJURY AS TO
JUSTIFY THE AWARD OF DECLARATORY RELIEF.  THE QUESTION IS "WHETHER THE
FACTS ALLEGED, UNDER ALL THE CIRCUMSTANCES, SHOW THAT THERE IS A
SUBSTANTIAL CONTROVERSY, BETWEEN PARTIES HAVING ADVERSE LEGAL
INTERESTS, OF SUFFICIENT IMMEDIACY AND REALITY TO WARRANT THE ISSUANCE
OF A DECLARATORY JUDGMENT."  MARYLAND CASUALTY CO. V. PACIFIC COAL &
OIL CO., 312 U.S. 270, 273 (1941).  AND SINCE THIS CASE INVLOVES
GOVERNMENTAL ACTION, WE MUST PONDER THE BROADER CONSIDERATION WHETHER
THE SHORT-TERM NATURE OF THAT ACTION MAKES THE ISSUES PRESENTED HERE
"CAPABLE OF REPETITION, YET EVADING REVIEW," SO THAT PETITIONERS ARE
ADVERSELY AFFECTED BY GOVERNMENT "WITHOUT A CHANCE OF REDRESS." 
SOUTHERN PAC.  TERMINAL CO. V. ICC, 219 U.S. 498, 515 (1911). 

A. WE HOLD THAT THE FACTS HERE PROVIDE FULL AND COMPLETE
SATISFACTION OF THE REQUIREMENT OF THE CONSTITUTION'S ACT.  III, 2, AND
THE DECLARATORY JUDGMENT ACT, THAT A CASE OR CONTROVERSY EXIST BETWEEN
THE PARTIES.  UNLIKE THE SITUATIONS THAT PREVAILED IN OIL WORKERS
UNIONS V. MISSOURI, 361 U.S. 363 (1960), ON WHICH THE COURT OF APPEALS'
MAJORITY CHIEFLY RELIED, AND IN HARRIS V. BATTLE, 348 U.S. 803 (1954),
THE CHALLENGED GOVERNMENTAL ACTIVITY IN THE PRESENT CASE IS NOT
CONTINGENT, HAS NOT EVAPORATED OR DISAPPEARED, AND, BY ITS CONTINUING
AND BROODING PRESENCE, CASTS WHAT MAY WELL BE A SUBSTANTIAL ADVERSE
EFFECT ON THE INTEREST OF THE PETITIONING PARTIES. 

IN BOTH HARRIS AND OIL WORKERS A STATE STATUTE AUTHORIZED THE
GOVERNOR TO TAKE IMMEDIATE POSSESSION OF A PUBLIC UTILITY IN THE EVENT
OF A STRIKE OR WORK STOPPAGE THAT INTERFERED WITH THE PUBLIC INTEREST. 
THE SEIZURE WAS NOT AUTHOMATIC FOR EVERY PUBLIC UTILITY LABOR DISPUTE
IT TOOK EFFECT ONLY UPON THE EXERCISE OF THE GOVERNOR'S DISCRETION.  IN
EACH CASE THE COURT HELD THE CONTROVERSY TO BE MOOT BECAUSE BOTH THE
SEIZURE AND THE STRIKE HAD TERMINATED PRIOR TO THE TIME THE CASE
REACHED THIS COURT.  THE GOVERNMENTAL ACTION CHALLENGED WAS THE
AUTHORITY TO SEIZE THE PUBLIC UTILITY, AND IT WAS CLEAR THAT A SEIZURE
WOULD NOT RECUR EXCEPT IN CIRCUMSTANCES WHERE (A) THERE WAS ANOTHER
STRIKE OR STOPPAGE, AND (B) IN THE JUDGMENT OF THE GOVERNOR, THE PUBLIC
INTEREST REQUIRED IT.  THE QUESTION WAS THUS POSED IN A SITUATION WHERE
THE THREAT OF GOVERNMENTAL ACTION WAS TWO STEPS REMOVED FROM REALITY. 
THIS MADE THE RECURRENCE OF A SEIZURE SO REMOTE AND SPECULATIVE THAT
THERE WAS NO TANGIBLE PREJUDICE TO THE EXISTING INTERESTS OF THE
PARTIES AND, THEREFORE, THAT WAS A "WANT OF A SUBJECT MATTER" ON WHICH
ANY JUDGMENT OF THIS COURT COULD OPERATE.  OIL WHORKERS, 361 U.S., AT
371.  THE IS WAS PARTICULARLY APPARENT IN OIL WORKERS BECAUSE, ALTHOUGH
THE UNION HAD SOUGHT BOTH DECLARATORY AND INJUNCTIVE RELIEF, THE
DECISION THE COURT WAS ASKED TO REVIEW "UPHELD ONLY THE VALIDITY OF AN
INJUNCTION, AN INJUNCTION THAT EXPIRED BY ITS OWN TERMS MORE THAN THREE
YEARS AGO."  IBID. 

THE PRESENT CASE HAS A DECIDEDLY DEFFERENT POSTURE.  AS IN HARRIS
AND OIL WORKERS, THE STRIKE HERE WAS SETTLED BEFORE THE LITIGATION
REACHED THIS COURT.  BUT, UNLIKE THOSE CASES, THE CHALLENGED
GOVERNMENTAL ACTION HAS NOT CEASED.  THE NEW JERSEY GOVERNMENTAL ACTION
DOES NOT REST ON THE DISTANT CONTINGENCIES OF ANOTHER STRIKE AND THE
DISCRETIONARY ACT OF AN OFFICIAL.  /7/  RATHER, NEW JERSEY HAS DECLARED
POSITIVELY THAT ABLE-BODIED STRIKING WORKERS WHO ARE ENGAGED,
INDIVUALLY AND COLLECTIVELY, IN AN ECONOMIC DISPUTE WITH THEIR EMPLOYER
ARE ELIGIBLE FOR ECONOMIC BENEFITS.  THIS POLICY IS FIXED AND
DEFINITE.  IT IS NOT CONTINGENT UPON EXECUTIVE DISCRETION.  /8/
EMPLOYEES KNOW THAT IF THEY GO OUT ON STRIKE, PUBLIC FUNDS ARE
AVAILABLE.  THE PETITIONERS' CLAIM IS THAT THIS ELIGIBILITY AFFECTS THE
COLLECTIVE-BARGAINING RELATIONSHIP, BOTH IN THE CONTEXT OF A LIVE LABOR
DISPUTE WHEN A COLLECTIVE-BARGAINING AGREEMENT IS IN PROCESS OF
FORMULATION, AND IN THE ONGOING COLLECTIVE RELATIONSHIP, SO THAT THE
ECONOMIC BALANCE BETWEEN LABOR AND MANAGEMENT, CAREFULLY FORMULATED AND
PRESERVED BY CONGRESS IN THE FEDERAL LABOR STATUTES, IS ALTERED BY THE
STATE'S BENEFICENT POLICY TOWARD STRIKERS.  IT CANNOT BE DOUBTED THAT
THE AVAILABILITY OF STATE WELFARE ASSISTANCE FOR STRIKING WORKERS IN
NEW JERSEY PERVADES EVERY WORK STOPPAGE, AFFECTS EVERY EXISTING
COLLECTIVE-BARGAINING AGREEMENT, AND IS A FACTOR LURKING IN THE
BACKGROUND OF EVERY INCIPIENT LABOR CONTRACT.  THE QUESTION, OR COURSE,
IS WHETHER CONGRESS, EXPLICITLY OR IMPLICITLY, HAS RULED OUT SUCH
ASSISTANCE IN ITS CALCULUS OF LAWS REGULATING LABOR-MANAGEMENT
DISPUTES.  IN THIS SENSE PETITIONERS ALLEGE A COLORABLE CLAIM OF INJURY
FROM AN EXTANT AND FIXED POLICY DIRECTIVE OF THE STATE OF NEW JERSEY. 
THAT CLAIM DESERVES A HEARING. 

THE DECISION IN BUS EMPLOYEES V. MISSOURI, 347 U.S. 74 (1963), IS
NOT TO THE CONTRARY.  IN THAT CASE THE COURT ADJUDICATED THE MERITS OF
THE SAME STATUTORY SCHEME THAT HAD BEEN CHALLENGED EARLIER IN OIL
WORKERS.  IT REACHED THE MERITS EVEN THOUGH THE GOVERNOR HAD TERMINATED
THE SEIZURE OF THE PUBLIC UTILITY.  HIS EXECTIVE ORDER, HOWEVER,
RECITED THAT THE LABOR DISPUTE "REMAINS UNRESOLVED."  THE COURT'S
RETAIONALE WAS THAT, SINCE THE LABOR DISPUTE HAD NOT ENDED, "(THERE
THUS EXISTS IN THE PRESENT CASE NOT MERLY THE SPECULATIVE POSSIBILITY
OF INVOCATION OF THE KING-THOMPSON ACT IN SOME FUTURE LABOR DISPUTE,
BUT THE PRESENCE OF AN EXISTING UNRESOLVED DISPUTE WHICH CONTINUES
SUBJECT TO ALL THE PROVISIONS OF THE ACT.  CF. SOUTHERN PAC. TERMAINAL
CO. V. INTERSTATE COMMERCE COMM'N, 219 U.S. 498, 514 - 516; UNITED
STATES V. W. T. GRANT CO., 345 U.S. 629, 632."  374 U.S., AT 78.  THE
EXISTENCE OF THE STRIKE WAS IMPORTANT IN THAT IT RENDERED CONCRETE THE
LIKELIHOOD OF STATE ACTION PREJUDICIAL TO THE INTERESTS OF THE UNION. 
IT WAS THE REMOTENESS OF THE THREAT OF STATE ACTION THAT CONVINCED THE
COURT IN OIL WORKERS TO HOLD THAT CASE MOOT.  IN THE CASE NOW BEFORE
US, THE STATE ACTION IS NOT AT ALL CONTINGENT.  UNDER THE PETITIONERS'
VIEW OF THE CASE, IT IS IMMEDIATELY AND DIRECTLY INJURIOUS TO THE
CORPORATE PETITIONERS' ECONOMIC POSITIONS.  WHERE SUCH STATE ACTION OR
ITS IMMINENCE ADVERSELY AFFECTS THE STATUS OF PRIVATE PARTIES, THE
COURTS SHOULD BE AVAILABLE TO RENDER APPROPRIATE RELIEF AND JUDGMENTS
AFFECTING THE PARTIES' RIGHTS AND INTERESTS. 

B. IF WE WERE TO CONDITION OUR REVIEW ON THE EXISTENCE OF AN
ECONOMIC STRIKE, THIS CASE MOST CERTAINLY WOULD BE OF THE TYPE
PRESENTING AN ISSUE "CAPABLE OF REPETITION, YET EVADING REVIEW." 
SOUTHERN PAC. TERMINAL CO. V. ICC, 219 U.S., AT 515; GRINNELL CORP. V.
HACKETT, 475 F.2D 449 (CA1), CERT, DENIED, 414 U.S. 858 AND 879 (1973);
ITT LAMP DIVISION V. MINTER, 435 F.2D, AT 991.  TO REQUIRE THE PRESENCE
OF AN ACTIVE AND LIVE LABOR DISPUTE WOULD TAX THE LITIGANT TOO MUCH BY
ARBITRARULY SLIGHTING CLAIMS OF ADVERSE INJURY FROM CONCRETE
GOVERNMENTAL ACTION (OR THE IMMEDIATE THREAT THEREOF).  IT IS
SUFFICIENT, THEREFORE, THAT THE LITIGANT SHOW THE EXISTENCE OF AN
IMMEDIATE AND DEFINITE GOVERNMENTAL ACTION OR POLICY THAT HAS ADVERSELY
AFFECTED AND CONTINUES TO AFFECT A PRESENT INTEREST.  OTHERWISE, A
STATE POLICY AFFECTING A COLLECTIVE-BARGAINING ARRANGEMENT, EXCEPT ONE
INVOLVING A FINE OR OTHER PENALTY, COULD BE ADJUDICATED ONLY RARELY,
AND THE PURPOSES OF THE DECLARATORY JUDGMENT ACT WOULD BE FRUSTRATED. 
CERTAINLY, THE PREGNANT APPELLANTS IN ROE V. WADE, SUPRA, AND IN DOE
V. BOLTON, 410 U.S. 179 (1973), HAD LONG SINCE OUTLASTED THEIR
PREGNANCIES BY THE TIME THEIR CASES REACHED THIS COURT.  YET WE HAD NO
DIFFICULTY IN REJECTING SUGGESTIONS OF MOOTNESS.  410 U.S., AT 125 AND
187.  SIMILAR AND CONSISTENT RESULTS WERE REACHED IN STORER V. BROWN,
415 U.S. 724, 737 N. 8 (1973); ROSARIO V. ROCKEFELLER, 410 U.S. 752,
756 N. 8 (1973); DUNN V. BLUMSTEIN, 405 U.S. 330, 333 N. 2 N1972); AND
MOORE V. OGILVIE, 394 U.S. 814, 816 (1969), CASES CONCERNING VARIOUS
CHALLENGES TO STATE ELECTION LAWS.  THE IMPORTANT INGREDIENT IN THESE
CASES WAS GOVERNMENTAL ACTION DERECTLY AFFECTING, AND CONTINUING TO
AFFECT, THE BEHAVIOR OF CITIZENS IN OUR SOCIETY.     THE ISSUES HERE
ARE NO DIFFERENT.  ECONOMIC STRIKES ARE OF COMPARATIVELY SHORT
DURATION.  THERE ARE EXCEPTIONS, OF COURSE.  SEE, FOR EXAMPLE, LOCAL
833, UAW V. NLRB, 112 U.S. APP. D.C. 107, 300 F.2D 699, CERT. DENIED
SUB NOM. KOHLER CO. V. LOCAL 833, UAW, 370 U.S. 911 (1962).  BUT THE
GREAT MAJORITY OF ECONOMIC STRIKES DO NOT LAST LONG ENOUGH FOR COMPLETE
JUDICIAL REVIEW OF THE CONTROVERSIES THEY ENGENDER.  U.S. DEPT. OF
LABOR, BUREAU OF LABOR STATISTICS, ANALYSIS OF WORK STOPPAGES 1971,
TABLE A-3, P. 16 (1973).  A STRIKE THAT LASTS SIX WEEKS, AS THIS ONE
DID, MAY SEEM LONG, BUT ITS TERMINATION, LIKE PREGNANCY AT NINE MONTHS
AND ELECTIONS SPACED AT YEAR-LONG OR BIENNIAL INTERVALS, SHOULD NOT
PRECLUDE CHALLENGE TO STATE POLICIES THAT HAVE HAD THEIR IMPACT AND
THAT CONTINUE IN FORCE, UNABATED AND UNREVIEWED.  THE JUDICIARY MUST
NOT CLOSE THE DOOR TO THE RESOLUTION OF THE IMPORTANT QUESTIONS THESE
CONCRETE DISPUTES PRESENT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS ON THE MERITS OF THE CONTROVERSY. 

         IT IS SO ORDERED. 

/1/  SUPER TIRE ENGINEERING COMPANY IS ENGAGED IN THE BUSINESS OF
TRUCK TIRE SALES AND SERVICE AND THE MANUFACTURE AND SALE OF INDUSTRIAL
POLYURETHANE TIRES AND WHEELS.  SUPERCAP CORPORATION IS ENGAGED IN THE
BUSINESS OF TRUCK TIRE RECAPPING AND REPAIRING. 

/2/  THE NAMED DEFENDANTS WERE LLOYD W. MCCORKLE, COMMISSIONER OF
THE DEPARTMENT OF INSTITUTIONS AND AGENCIES OF THE STATE OF NEW JERSEY;
IRVING J. ENGLEMAN, DIRECTOR OF THE DIVISION OF PUBLIC WELFARE OF THE
DEPARTMENT OF INSTITUTIONS AND AGENCIES OF THE STATE OF NEW JERSEY;
FRED L. STRENG, DIRECTOR OF THE CAMDEN COUNTY, NEW JERSEY WELFARE
BOARD; AND JUANITA E. DICKS, WELFARE DIRECTOR OF THE MUNICIPAL WELFARE
DEPARTMENT OF THE CITY OF CAMDEN, NEW JERSEY. 

/3/  THE GENERAL PUBLIC ASSISTANCE LAW, N.J. ANN. 44:8 - 107 ET SEQ.
(SUPP. 1973 - 1974), A STATE PROGRAM, AND THE ASSISTANCE FOR DEPENDENT
CHILDREN LAW (ADC), N.J. STAT. ANN. 44:10 - 1 ET SEQ., (SUPP. 1973 -
1974), A FEDERAL-STATE PROGRAM CREATED BY 402 OF THE SOCIAL SECURITY
ACT, AS AMENDED, 42 U.S.C. 602. 

EFFECTIVE JUNE 30, 1971, NEW JERSEY ELECTED NO LONGER TO PARTICIPATE
IN THE UNEMPLOYED PARENT SEGMENT OF THE AFDC PROGRAM, AND ENACTED, IN
ITS PLACE, THE ASSISTANCE TO FAMILIES OF THE WORKING POOR PROGRAM, N.J.
STAT. ANN. 44:13 - 1 ET SEQ. (SUPP. 1973 - 1974). 

/4/  THE REGULATIONS (M. A. 1.006, REVISED MAR. 1957), ISSUED BY THE
NEW JERSEY DEPARTMENT OF INSTITUTIONS AND AGENCIES UNDER THE GENERAL
PUBLIC ASSISTANCE LAW, PROVIDED IN PERTINENT PART: 

"A.  CITATION OF STATUTE AND CONSTITUTION 

"CHAPTER 156, P.L. 1947 (R.S. 44:8 - 108) DEFINES REIMBURSABLE
PUBLIC ASSISTANCE AS 'ASSISTANCE RENDERED TO NEEDY PERSONS NOT
OTHERWISE PROVIDED FOR UNDER THE LAWS OF THIS STATE, WHERE SUCH PERSONS
ARE WILLING TO WORK BUT ARE UNABLE TO SECURE EMPLOYMENT DUE EITHER TO
PHYSICAL DISABILITY OF INABILITY TO FIND EMPLOYMENT.' 

"THE CONSTITUTION OF NEW JERSEY 1947, ARTICLE I, PARAGRAPH 19,
GUARANTEES THAT 'PERSONS IN PROVATE EMPLOYMENT SHALL HAVE THE RIGHT TO
ORGANIZE AND BARGAIN COLLECTIVELY.' 

"B.  INTERPRETATION AND POLICY 

"IT MAY BE INFERRED FROM THE QUOTED SECTION OF THE STATUTE THAT
PERSONS UNWILLING TO WORK ARE INELIGIBLE FOR PUBLIC ASSISTANCE. 
HOWEVER, FOR PURPOSES OF PUBLIC ADMINISTRATION, THE PHRASE 'UNWILLING
TO WORK' MUST BE DEFINED AS OBJECTIVELY AS POSSIBLE. 

" . . . THE CONSTITUTIONAL GUARANTEE OF THE 'RIGHT TO ORGANIZE AND
BARGAIN COLLECTIVELY' IMPLIES THE RIGHT TO THE INDIVIDUAL TO
PARTICIPATE IN A BONA FIDE LABOR DISPUTE AS BETWEEN THE EMPLOYER AND
THE COLLECTIVE BARGAINING UNIT BY WHICH THE INDIVIDUAL IS REPRESENTED. 
MOREOVER, A 'STRIKE,' WHEN LAWFULLY AUTHORIZED AND CONDUCTED, IS
RECOGNIZED AS AN INHERENT AND LAWFUL ELEMENT OF THE PROCESS OF
BARGAINING COLLECTIVELY AND OF RESOLVING LABOR DISPUTES.  ACCORDINGLY,
WHEN AN INDIVIDUAL IS PARTICIPATING IN A LAWFUL 'STRIKE,' HE MAY NOT BE
CONSIDERED MERELY BECAUSE OF SUCH PARTICIPATION, AS REFUSING TO WORK
WITHOUT JUST CAUSE. 

"C.  REGULATIONS 

"BASED ON THE FOREGOING STATEMENT OF INTERPRETATION AND POLICY, THE
FOLLOWING REGULATIONS ARE ESTABLISHED: 

"4.  NO INDIVIDUAL SHALL BE PRESUMED TO BE UNWILLING TO WORK, OR TO
BE WRONGFULLY REFUSING TO ACCEPT SUITABLE EMPLOYMENT, MERELY BECAUSE HE
IS PARTICIPATING IN A LAWFUL LABOR DISPUTE. 

"5.  AN INDIVIDUAL WHO IS PARTICIPATING IN A LAWFUL LABOR DISPUTE,
AND WHO IS NEEDY, HAS THE SAME RIGHT TO APPLY FOR PUBLIC ASSISTANCE,
FOR HIMSELF AND HIS DEPENDENTS, AS ANY OTHER INDIVIDUAL WHO IS NEEDY. 

"6.  IN THE CASE OF AN APPLICANT FOR PUBLIC ASSISTANCE WHO IS
PARTICIPATING IN A LAWFUL LABOR DISPUTE, THERE SHALL BE AN
INVESTIGATION OF NEED AND OTHER CONDITIONS OF ELIGIBILITY, AND AN
EVALUATION OF INCOME AND RESOURCES, IN THE SAME WAY AND TO THE SAME
EXTENT AS IN ALL OTHER CASES.  IN SUCH INSTANCES, 'STRIKE BENEFITS' OR
OTHER PAYMENTS AVAILABLE TO THE INDIVIDUAL FROM THE LABOR UNION OR
OTHER SOURCE, SHALL BE CONSIDERED A RESOURCE AND SHALL BE DETERMINED
AND ACCOUNTED FOR." 

THE RECORD IS NOT CLEAR AS TO THE ELIGIBILITY OF STRIKERS UNDER NEW
JERSEY'S NEWLY ENACTED PROGRAM OF ASSISTANCE TO FAMILIES OF THE WORKING
POOR.  PETITIONERS STATE THAT STRIKING WORKERS ARE ELIGIBLE FOR
BENEFITS UNDER THAT PROGRAM.  BRIEF FOR PETITIONERS 4 N. 1.  THE
RESPONEDNTS CONCEDE THIS, AS "A MATTER OF ADMINISTRATIVE APPLICATION." 
TR. OF ORAL ARG. 46. 

/5/  THE COMPLAIN ALSO ALLEGED THAT THE INCLUSION OF STRIKING
WORKERS IN THESE PROGRAMS WAS CONTRARY TO NEW JERSEY LAW. 

/6/  ALL THE STRIKERS RETURNED TO WORK BY MONDAY, JUNE 28, 1971, AND
NORMAL OPERATIONS AT THE CORPORATE PETITIONERS' PLANTS WERE THEN
RESUMED. 

/7/  ALTHOUGH THE THREAT OF SEIZURE IN OIL WORKERS CONSTITUTED A FAR
MORE SEVERE FORM OF GOVERNMENTAL ACTION, GOING AS IT DID TO CRIPPLE ANY
STRIKE, THE FEATURES OF THAT ACTION WERE INEXORABLY CONTINGENT, SERVING
TO MAKE IT MORE REMOTE AND SPECULATIVE. 

/8/  IT MAY NOT APPROPRIATELY BE ARGUED THAT THERE IS AN ELEMENT OF
DESCRETION PRESENT HERE IN THE MAKING OF THE DETERMINATION OF
INDIVIDUAL "NEED" FOR WELFARE BENEFITS.  THAT DETERMINATION HAS NO
MEASURABLE EFFECT ON THE RIGHTS OF THE CORPORATE PETITIONERS.  INSTEAD,
IT IS THE BASIC ELIGIBILITY FOR ASSISTANCE THAT ALLEGEDLY PREJUDICES
THOSE PETITIONERS' ECONOMIC POSITION.  MR. JUSTICE STEWART, WITH WHOM
THE CHIEF JUSTICE, MR. JUSTICE POSELL, AND MR. JUSTICE REHNQUIST JOIN,
DISSENTING. 

THE COURT TODAY REVERSES THE COURT OF APPEALS AND HOLDS THAT THIS
CASE IS NOT MOOT, DESPITE THE FACT THAT THE UNDERLYING LABOR DISPUTE
THAT GAVE RISE TO THE PETITIONERS'  CLAIMS ENDED EVEN BEFORE THE
PARTIES MADE THEIR INITIAL APPEARANCE IN THE DISTRICT COURT.  I THINK
THIS HOLDING IGNORES THE LIMITATIONS PLACED UPON THE FEDERAL JUDICIARY
BY ART. III OF THE CONSTITUTION AND DISREGARDS THE CLEAR TEACHINGS OF
PRIOR CASES.  ACCORDINGLY, I DISSENT. 

THIS COURT HAS REPEATEDLY RECOGNIZED THAT THE INABILITY OF THE
FEDERAL JUDICIARY "TO REVIEW MOOT CASES DERIVES FROM THE REQUIREMENT OF
ART. III OF THE CONSTITUTION UNDER WHICH THE EXERCISE OF JUDICIAL POWER
DEPENDS UPON THE EXISTENCE OF A CASE OR CONTROVERSY."  LINER V. JAFCO,
INC., 375 U.S. 301, 306 N. 3.  SEE ALSO NORTH CAROLINA V. RICE, 404
U.S. 244, 246; POWELL V. MCCORMACK, 395 U.S. 486, 496 N. 7; SIBRON V.
NEW YORK, 392 U.S. 40, 50 N. 8.  SINCE ARTICLE III COURTS ARE PRECLUDED
FROM ISSUING ADVISORY OPINIONS, HAYBURN'S CASE, 2 DALL.  409; MUSKRAT
V. UNITED STATES, 219 U.S. 346, IT NECESSARILY FOLLOWS THAT THEY ARE
IMPOTENT "TO DECIDE QUESTIONS THAT CANNOT AFFECT THE RIGHTS OF
LITIGANTS IN THE CASE BEFORE THEM."  NORTH CAROLINA V. RICE, SUPRA, AT
246; ST. PIERRE V. UNITED STATES, 319 U.S. 41, 42.  /1/ 

THESE BROAD CONSTITUTIONAL PRINCIPELS, OF COURSE, PROVIDE NO MORE
THAN THE STARTING POINT, SINCE THE DECISION AS TO WHETHER ANY
PARTICULAR LAWSUIT IS MOOT CAN BE MADE ONLY AFTER ANALYSIS OF THE
PRECISE FACTUAL SITUATION OF THE PARTIES INVOLVED.  BUT IN MY VIEW OUR
TASK IN THE PRESENT CASE IS GREATLY SIMPLIFIED, FOR THIS COURT HAS HAD
SEVERAL OCCASIONS WITHIN THE PAST 20 YEARS TO APPLY THE GENERAL
PRINCIPLES OF MOOTNESS TO THE SPECIFIC FACTS OF LABOR DISPUTES CLOSELY
ANALOGOUS TO THE ONE AT HAND. 

THE FIRST OF THESE CASES WAS HARRIS V. BATTLE, 348 U.S. 803, IN
WHICH THE ISSUE WAS WHETHER A VIRGINIA STATUTE THAT PERMITTED THE STATE
GOVERNOR TO ORDER THAT "POSSESSION"  BE TAKEN OF A TRANSIT COMPANY
WHOSE EMPLOYEES WERE ON STRIKE WAS IN CONFLICT WITH THE NATIONAL LABOR
RELATIONS ACT.  THE UNDERLYING LABOR DISPUTE WAS SETTLED AND THE
SEIZURE TERMINATED BEFORE THE CASE CAME TO TRIAL, BUT THE TRIAL COURT
NEVERTHELESS PROCEEDED TO DECIDE THE MERITS OF THE CONTROVERSY, FINDING
THE STATUTE CONSTITUIONAL.  AFTER THE VIRGINIA SUPREME COURT REFUSED
REVIEW, AN APPEAL WAS TAKEN TO THIS COURT.  IN A BRIEF PER CURIAM
OPINION, THIS COURT HELD THAT THE CASE WAS MOOT AND ORDERED THE APPEAL
DISMISSED. 

IN OIL WORKERS UNIONS V. MISSOURI, 361 U.S. 363, WE HAD OCCASION TO
EXPLICATE THE HOLDING OF HARRIS V. BATTLE IN THE CONTEXT OF A CHALLENGE
TO MISSOURI'S KING- THOMPSON ACT, WHICH ALLOWED THE GOVERNOR ON BEHALF
OF THE STATE TO TAKE POSSESSION OF AND OPERATE A PRIVATELY OWNED PUBLIC
UTILITY AFFECTED BY A WORK STOPPAGE.  IN THAT CASE, THE UNDERLYING
STRIKE AND SEIZURE HAD TERMINATED WHILE THE CASE WAS ON APPEAL TO THE
SUPREME COURT OF MISSOURI.  NONETHELESS, THAT COURT CONSIDERED THE
MERITS OF THE LAWSUIT, HOLDING THE KING-THOMPSON ACT CONSTITUTIONAL. 
WE READ HARRIS V. BATTLE AS REQUIRING THAT THE CASE BE HELD MOOT, SINCE
THE TERMINATION OF BOTH THE STRIKE AND THE SEIZURE LEFT "NO 'ACTUAL
MATTERS IN CONTROVERSY ESSENTIAL TO THE DECISION OF THE PARTICULAR
CASE'" THEN BEFORE US. 361 U.S., AT 367, QUOTING FROM UNITED SATES V.
ALASKA S. S. CO., 253 U.S. 113, 116. 

THE CONSTITUTIONALITY OF THE KING-THOMPSON ACT WAS AGAIN AT ISSUE IN
BUS EMPLOYEES V. MISSOURI, 374 U.S. 74.  THE STRIKE AND SEIZURE IN THAT
CASE WERE STILL IN EFFECT AT THE TIME OF THE DECISION OF THE SUPREME
COURT OF MISSOURI, BUT, AFTER THE APPELLANTS' JURISDICTIONAL STATEMENT
WAS FILED IN THIS COURT, THE GOVERNOR OF MISSOURI TERMINATED THE
OUTSTANDING SEIZURE ORDER.  CONSEQUENTLY, THE APPELLEES ARGUED THAT THE
CASE HAD BECOME MOOT, RELYING ON HARRIS AND OIL WORKERS.  WE REJECTED
THE CONTENTION, NOTING THAT IN BOTH THOSE CASES, THE UNDERLYING LABOR
DISPUTE HAD BEEN SETTLED BY THE TIME THE LITIGATION REACHED THIS
COURT.  IN BUS EMPLOYEES, BY CONTRAST, THE STRIKE WAS STILL UNRESOLVED,
AND THE APPELLANTS WERE THUS FULLY SUBJECT TO THE PROVISIONS OF THE
KING-THOMPSON ACT.  HENCE, WE CONCLUDED THAT HARRIS AND OIL WORKERS DID
NOT CONTROL, AND WE PROCEEDED TO DECIDE THE MERITS OF THE CASE, HOLDING
THE MISSOURI LAW TO BE IN CONFLICT WITH THE NATIONAL LABOR RELATIONS
ACT, AND THUS INVALID UNDER THE SUPREMACY CLAUSE. 

I THINK IT IS CLEAR THAT THE FACTS OF THE CASE BEFORE US SERVE TO
BRING IT WITHIN THE TEACHING OF HARRIS AND OIL WORKERS, AND OUTSIDE THE
AMBIT OF BUS EMPLOYEES.  HERE, AS IN HARRIS AND OIL WORKERS, BOTH THE
UNDERLYING WORK STOPPAGE AND THE CHALLENGED GOVERNMENTAL ACTION--THE
PROVIDING OF WELFARE BENEFITS TO THE PETITIONERS' EMPLOYEES--HAD CEASED
LONG BEFORE REVIEW WAS SOUGHT IN THIS COURT.  ANY VIEW THAT A FEDERAL
COURT MIGHT EXPRESS ON THE MERITS OF THE PETITIONERS' SUPREMACY CLAUSE
CLAIMS WOULD, THEREFORE, AMOUNT TO AN ADVISORY OPINION, HAVING NO
EFFECT ON ANY "ACTUAL MATTERS IN CONTROVERSY."  AS WE NOTED IN OIL
WORKERS, SUCH AN UNDERTAKING WOULD IGNORE A "BASIC LIMITATION UPON THE
DUTY AND FUNCTION OF THE COURT, AND . . . DISREGARD PRINCIPLES OF
JUDICIAL ADMINISTRATION LONG ESTABLISHED AND REPEATEDLY FOLLOWED."  361
U.S., AT 368. 

THE COURT OFFERS ESSENTIALLY TWO ARGUMENTS AIMED AT DISTINGUSHING
THIS CASE FROM HARRIS AND OIL WORKERS.  FIRST, IT SAYS THAT THE VERY
EXISTENCE OF THE NEW JERSEY WELFARE PROGRAMS CONSTITUTES A CONTINUING
BURDEN ON THE PETITIONERS' ABILITY TO ENGAGE IN COLLECTIVE BARGAINING
WITH THE RESPONDENT UNION.  SECONDLY, THE COURT SAYS THAT THE
UNDERLYING CONTROVERSY HERE IS "CAPABLE OF REPETITION, YET EVADING
REVIEW," AND THUS COMES WITHIN THE RULE OF SOUTHERN PAC. TERMINAL CO.
V. ICC, 219 U.S. 498, 515. 

SIMILAR ARGUMENTS, HOWEVER, WERE CONSIDERED AND REJECTED IN BOTH
HARRIS AND OIL WORKERS.  IN EACH OF THOSE CASES IT WAS ARGUED THAT THE
SOUTHERN PACIFIC DOCTRINE PREVENTED A FINDNG OF MOOTNESS, AND IT WAS
ALSO ARGUED THAT THE CASE WAS NOT MOOT BECAUSE OF THE CONTINUING THREAT
OF STATE SEIZURE OF PUBLIC UTILITIES IN FUTURE LABOR DISPUTES.  THE
COURT'S SUMMARY DISMISSAL OF THE HARRIS APPEAL NECESSARILY REJECTED
BOTH OF THESE CONTENTIONS, AND WE EXPLICITLY ADHERED TO THAT HOLDING IN
OIL WORKERS: 

"IN (HARRIS) IT WAS URGED THAT THE CONTROVERSY WAS NOT MOOT BECAUSE
OF THE CONTINUING THREAT OF STATE SEIZURE IN FUTURE LABOR DISPUTES.  IT
WAS ARGUED THAT THE STATE'S ABANDONMENT OF ALLEGED UNCONSTITUTIONAL
ACTIVITY AFTER ITS OBJECTIVE HAD BEEN ACCOMPLISHED SHOULD NOT BE
PERMITTED TO FORESTALL DECISION AS TO THE VALIDITY OF THE STATUTE UNDER
WHICH THE STATE HAD PURPOSTED TO ACT.  IT WAS CONTENDED THAT THE
SITUATION WAS AKIN TO CASES LIKE SOUTHERN PAC. TERMINAL CO. V.
INTERSTATE COMMERCE COMM'N, 219 U.S. 498, 514 - 516.  IN FINDING THAT
THE CONTROVERSY WAS MOOT, THE COURT NECESSARILY REJECTED ALL THESE
CONTENTIONS.  348 U.S. 803.  UPON THE AUTHORITY OF THAT DECISION THE
SAME CONTENTIONS MUST BE REJECTED IN THE PRESENT CASE.  SEE ALSO BARKER
CO. V. PAINTERS UNION, 281 U.S. 462; COMMERCIAL CABLE CO. V. BURLESON,
250 U.S. 360."  361 U.S., AT 368 - 369 (FOOTNOTES OMITTED).     I FIND
NO REASON TO DEPART FROM THIS HOLDING IN THE CASE BEFORE US.  WHILE IT
IS NOT INCONCEIVABLE THAT THE PETITIONERS' EMPLOYEES WILL ONCE AGAIN
STRIKE AND PERHAPS ONCE AGAIN BECOME ELIGIBLE FOR FUTURE NEW JERSEY
WELFARE BENEFITS, I FIND LITTLE TO DISTINGUISH THAT HYPOTHETICAL
SITUATION FROM THE "SPECULATIVE POSSIBILITY OF INVOCATION OF THE KING
THOMPSON ACT IN SOME FUTURE LABOR DISPUTE"  /2/  THAT WAS PRESENT IN
OIL WORKERS.  AND, EVEN IF IT COULD BE ASSUMED THAT THE PRESENT
CONTROVERSY IS "CAPABLE OF REPETITION" WITHIN THE MEANING OF THE
SOUTHERN PACIFIC TEST, I AM LESS THAN CONFIDENT THAT THE ISSUES
PRESENTED CAN TRULY BE CHARACTERIZED AS "EVADING REVIEW."  IF NOTHING
ELSE, THE BUS EMPLOYEES CASE TEACHES THAT EVEN THE MOST CONFIDENT
PREDICTIONS ABOUT THE FUTURE UNREVIEWABILITY OF SPECIFIC LEGAL
CONTROVERSIES ARE OFTEN PROVED INACCURATE.  INDEED, SEVERAL COURTS OF
APPEALS HAVE HAD THE OPPORTUNITY TO CONSIDER THE PRECISE SUPREMACY
CLAUSE ISSUES NOW RAISED BY THE PETITIONERS IN THE CONTEXT OF ONGOING
LABOR DISPUTES.  /3/  GIVEN THAT EXPERIENCE, I CANNOT CONCLUDE THAT IT
IS PERMISSIBLE TO RESOLVE THESE IMPORTANT QUESTIONS IN A CASE WHERE
THEIR RESLOUTION WILL HAVE NO DIRECT EFFECT ON THE PARTIES TO THE
LITIGATION. 

THE ARGUMENT THAT ELIGIBILITY OF STRIKERS FOR FUTURE NEW JERSEY
WELFARE BENEFITS MIGHT AFFECT THE "ONGOING"  PROCESS OF COLLECTIVE
BARGAINING FARES ON BETTER IN THE LIGHT OF THE OIL WORKERS DECISION. 
THE CONTINUED EXISTENCE OF THE KING-THOMPSON ACT IN OIL WORKERS
ARGUABLY HAD A MOST SIGNIFICANT EFFECT ON THE EMPLOYES' COLLECTIVE
BARGAINING ABILITY, SINCE IT THREATENED TO DEPRIVE THEM OF THEIR
PRINCIPAL ECONOMIC WEAPON, THE CAPACITY TO STRIKE.  YET THE COURT FOUND
THE CONTINUNING THREAT OF SEIZURE IN FUTURE LABOR DISPUTES TO BE
INSUFFICIENT TO SAVE THE OIL WORKERS CASE FROM MOOTNESS.  NO DIFFERENT
WEIGHT SHOULD BE ACCORDED TO THE PETITIONERS' AGRUMENT THAT THE
POSSIBILITY OF STRIKERS RECEIVING WELFARE BENEFITS WILL MAKE FUTURE
WORK STOPPAGES LESS ONEROUS FOR THEIR EMPLOYEES.  /4/ 

IN SHORT, I THINK THAT THIS CASE IS COMPLETELY CONTROLLED BY HARRIS
AND OIL WORKERS.  THE DOCTRINE OF MOOTNESS IS ALREADY A DIFFICULT AND
COMPLEX ONE, AND I THINK THAT THE COURT TODAY MUDDIES THE WATERS
FURTHER BY STRAINING UNNECESSARILY TO DISTINGUISH AND LIMIT SOME OF THE
FEW CLEAR PRECEDENTS AVAILABLE TO US. 

FOR THESE REASONS I WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS. 

/1/  SEE GENERALLY DIAMOND, FEDERAL JURISDICTION TO DECIDE MOOT
CASES, 94 U. PA. L. REV. 125; NOTE, MOOTNESS ON APPEAL IN THE SUPREME
COURT, 83 HARV. L. REV. 1672; NOTE, MOOTNESS AND RIPENESS:  THE POSTMAN
ALWAYS RINGS TWICE, 65 COL. L. REV. 867; NOTE, CASES MOOT ON APPEAL: A
LIMIT ON THE JUDICIAL POWER, 103 U. PA. L. REV. 772. 

/2/  BUS EMPLOYEES V. MISSOURI, 374 U.S. 74, 78. 

/3/  IN ITT LAMP DIVISION V. MINTER, 435 F.2D 989 (CA1), TWO CASES
WERE CONSOLDIATED ON APPEAL; ONE OF THEM INVOLVED AN ONGOING STRIKE. 
SIMILARILY, THE UNDERLYING LABOR DISPUTE IN RUSSO V. KIRBY, 453 F.2D
548 (CA2), WAS STILL IN EFFECT AT THE TIME OF THE COURT OF APPEALS'
DECISION, ALTHOUGH THE APPELLATE COURT DID NOT REACH THE EMPLYERS'
SUPREMACY CLAUSE ARGUMENTS, SINCE IT FOUND THAT THE DISTRICT COURT
LACKED JURISDICTION TO HEAR THE SUIT, WHICH HAD BEEN BROUGHT BY
STRIKERS TO COMPEL THE PAYMENT OF WELFARE BENEFITS. 

/4/  THE COUT CHARACTERIZES THE GOVERNMENTAL ACTION CHALLENGED IN
OIL WORKERS AND HARRIS AS MORE "REMOTE" AND "CONTINGENT" THAN THE NEW
JERSEY POLICY AT HAND.  FOR MOOTNESS PURPOSES, I THINK THAT THIS IS A
DISTINCTION WITHOUT A DIFFERENCE.  FOR ONE THING, NEW JERSEY DOES NOT
AUTHOMATICALLY EXTEND WELFARE BENEFITS TO STRIKING WORKERS; IT MERELY
MAKES THEM ELIGIBLE TO RECEIVE SUCH BENEFITS, PROVIDED THAT THEY MEET
ALL OTHER APPROPRIATE CRITERIA.  THUS, FOR THE CHALLENGED GOVERNMENTAL
ACTION HERE TO RECUR, AT LEAST TWO THINGS MUST HAPPEN: THE RESPONDENT
UNION MUST AGAIN CALL A STRIKE, AND THE WORKERS MUST SATISFY THE
STANDARDS OF NEED THAT MAY THEN BE SET FORTH IN THE NEW JERSEY WELFARE
STATUTES.  IF THE THREAT OF SEIZURE IN OIL WORKERS WAS VEIWED AS
"CONTINGENT" IN NATURE, NO DIFFERENT CONCLUSION CAN BE REACHED HERE. 

MOREOVER, AS THE COURT CONCEDES, ANTE, AT 123 N. 7, THE THREAT OF
SEIZURE IN OIL WORKERS INVOLVED "A FAR MORE SEVERE FORM" OF
GOVERNMENTAL INTERFERENCE IN THE COLLECTIVE-BARGAINING PROCESS THAN
DOES THE NEW JERSEY POLICY OF MAKING STRIKERS ELIGIBLE FOR WELFARE
BENEFITS, SINCE INVOCATION OF THE MISSOURI STATUTE SERVED TO CRIPPLE
ANY STRIKE COMPLETELY.  THUS, EVEN IF THE GOVERNMENTAL ACTION INVOLVED
IN OIL WORKERS IS VIEWED AS MORE "CONTINGENT" THAN IN THE PRESENT CASE,
I CANNOT UNDERSTAND HOW ITS EFFECT ON THE COLLECTIVE-BARGAINING PROCESS
CAN BE CHARACTERIZED AS LESS SERIOUS. 

LAWRENCE M. COHEN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE HERBERT G. KEENE, JR., AND JAMES A. YOUNG. 

STEPHEN SKILLMAN, FIRST ASSISTANT ATTORNEY GENERAL OF NEW JERSEY,
ARGUED THE CAUSE FOR RESPONDENTS MCCORKLE ET AL. WITH HIM ON THE BRIEFS
WERE GEORGE F. KUGLER, JR., FORMER ATTORNEY GENERAL, WILLIAM F. HYLAND,
ATTORNEY GENERAL, AND JANE SOMMER AND PAUL N. WATTER, DEPUTY ATTORNEYS
GENERAL.  ROBERT F. O'BRIEN ATGUED THE CAUSE AND FILED BRIEFS FOR
RESPONDENT TEAMSTERS LOCAL UNION NO. 676. 

BRIEFS OF AMICI CURIAE WERE FILED BY MILTON SMITH, GERARD C.
SMETANA, AND JERRY KRONENBERG FOR THE CHAMBER OF COMMERCE OF THE UNITED
STATES, AND BY J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR
THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS. 
..END :














ARNETT V. KENNEDY, 416 U.S. 134 


       ARNETT, DIRECTOR, OFFICE OF ECONOMIC OPPORTUNITY, ET AL. V.

           KENNEDY ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS

        NO. 72 - 1118.  ARGUED NOVEMBER 7, 1973--DECIDED APRIL 16,

           1974; 349 F. SUPP. 863, REVERSED AND REMANDED. 


    APPELLEE, A NONPROBATIONARY EMPLOYEE IN THE COMPETITIVE CIVIL

  SERVICE, WAS DISMISSED FROM HIS POSITION IN THE OFFICE OF

  ECONOMIC OPPORTUNITY (OEO) FOR ALLEGEDLY HAVING MADE RECKLESSLY

  FALSE AND DEFAMATORY STATEMENTS ABOUT OTHER OEO EMPLOYEES. 

  THOUGH PREVIOUSLY ADVISED OF HIS RIGHT UNDER OEO AND CIVIL

  SERVICE COMMISSION (CSC) REGULATIONS TO REPLY TO THE CHARGES AND

  THAT THE MATERIAL ON WHICH THE DISMISSAL NOTICE WAS BASED WAS

  AVAILABLE FOR HIS INSPECTION, HE DID NOT RESPOND TO THE SUBSTANCE

  OF THE CHARGES BUT BROUGHT THIS SUIT FOR INJUNCTIVE AND

  DECLARATORY RELIEF, CONTENDING THAT THE STANDARDS AND PROCEDURES

ESTABLISHED BY AND UNDER THE LLOYD-LA FOLLETTE ACT, 5 U.S.C 7501,

  FOR THE REMOVAL OF NONPROBATIONARY EMPLOYEES FROM THE FEDERAL

  SERVICE UNWARRANTEDLY INTERFERE WITH SUCH EMPLYEES' FREEDOM OF

  EXPRESSION AND DENY THEM PROCEDURAL DUE PROCESS.  A THREE-JUDGE

  DISTRICT COURT HELD THAT THE ACT AND ATTENDANT REGULATIONS DENIED

  APPELLEE DUE PROCESS BECAUSE THEY FAILED TO PROVIDE FOR A

  TRIAL-TYPE PREREMOBAL HEARING BEFORE AN IMPARTIAL OFFICIAL AND

  WERE UNCONSTITUTIONALLY VAGUE BECAUSE THEY FAILED TO FURNISH

  SUFFICIENTLY PRECISE GUIDELINES AS TO WHAT KIND OF SPEECH MIGHT

BE MADE THE BASIS FOR REMOVAL ACTION.  SECTION (7501 OF THE ACT

  PROVIDES FOR REMOVAL OF NONPROBATIONARY FEDERAL EMPLOYEES "ONLY

  FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE" AND

  PRESCRIBES THAT THE EMPLOYING AGENCY MUST FURNISH THE EMPLOYEE

  WITH WRITTEN NOTICE OF THE PROPOSED REMOVAL ACTION AND A COPY OF

  THE CHARGES; GIVE HIM A REASONABLE TIME FOR A WRITTEN ANSWER AND

  SUPPORTING AFFIDAVITS AND PROMPTLY FURNISH HIM THE AGENCY'S

  DECISION.  THE ACT FURTHER PROVIDES, HOWEVER, THAT "(EXAMINATION

 OF WITNESSES, TRIAL, OR HEARING IS NOT REQUIRED," BUT IS

  DISCRETIONARY WITH THE INDIVIDUAL DIRECTING THE REMOVAL.  CSC AND

  OEO REGULATIONS ENLARGE THE STATUTORY PROVISIONS BY REQUIRING 30

  DAYS' ADVANCE NOTICE BEFORE REMOVAL AND IN OTHER REPECTS, AND

  ENTITLE THE EMPLOYEE TO A POST-REMOVAL EVIDENTIARY TRIAL-TYPE

  HEARING AT THE APPEAL STAGE.  IF THE EMPLOYEE IS REINSTATED ON

  APPEAL, HE RECEIVES FULL BACKPAY.  IN ADDITION TO HIS FIRST

  AMENDMENT CLAIMS, APPELLEE CONTENDS THAT, ABSENT A FULL ADVERSARY

  HEARING BEFORE REMOVAL, HE COULD NOT CONSISTENTLY WITH DUE

  PROCESS REQUIREMENTS BE DIVESTED OF HIS PROPERTY INTEREST OR

EXPECTANCY IN EMPLOYMENT OR BE DEPRIVED OF HIS "LIBERTY" TO

  REFUTE THE CHARGES OF DISHONESTY ON WHICH HE ASSERTS HIS

  DISMISSAL WAS BASED.  HELD: THE JUDGMENT IS REVERSED AND THE CASE

  REMANDED.  PP. 148 - 171. 

     MR. JUSTICE REHNQUIST, JOINED BY THE CHIEF JUSTICE AND MR.
JUSTICE STEWART, CONCLUDED THAT:

     1.  IN CONFERRING UPON NONPROBATIONARY FEDERAL EMPLOYEES THE

  RIGHT NOT TO BE DISCHARGED EXCEPT FOR "CAUSE" AND AT THE SAME

  TIME CONDITIONING THE GRANT OF THAT RIGHT BY PROCEDURAL

  LIMITATIONS, THE ACT DID NOT CREATE AND THE DUE PROCESS CLAUSE

  DOES NOT REQUIRE ANY ADDITIONAL EXPECTANCY OF JOB RETENTION.  CF.

  BOARD OF REGENTS V. ROTH, 408 U.S. 564, 577.  PP. 148 - 155. 

 2.  THE CSC AND OEO PORT-TERMINATION HEARING PROCEDURES

 ADEQUATELY PROTECT THE LIBERTY INTEREST OF FEDERAL EMPLYEES,

  RECOGNIZED IN ROTH, SUPRA, IN NOT BEING WRONGFULLY STIGNATIZED BY

  UNTRUE AND UNSUPPORTED ADMINSTRATIVE CHARGES.  PP. 156 - 158. 

     3.  THE ACT'S STANDARD OF EMPLOYMENT PROTECTION, WHICH

  DESCRIBES AS EXPLICITLY AS IS FEASIBLE IN VIEW OF THE WIDE

  VARIETY OF FACTUAL SITUATIONS WHERE EMPLOYEES' STATEMENTS MIGHT

  JUSTIFY DISMISSAL FOR "CAUSE" THE CONDUCT THAT IS GROUND FOR

  REMOVAL, IS NOT IMPERMISSIBLY VAGUE OR OVERBROAD IN REGULATING

  FEDERAL EMPLOYEES'  SPEECH.  CSC V. LETTER CARRIERS, 413 U.S.

  548, 578 - 579.  PP. 158 - 163. 

     MR. JUSTICE POWELL, JOINED BY MR. JUSTICE BLACKMUN, WHILE

  AGREEING THAT 5 U.S.C. 7501 (A) IS NOT UNCONSTITUTIONALLY VAGUE

  OR OVERBROAD, CONCLUDED WITH RESPECT TO THE DUE PROCESS ISSUE

  THAT APPELLEE, AS A NONPROBATIONARY FEDERAL EMPLOYEE WHO COULD BE

DISCHARGED ONLY FOR "CAUSE," HAD A LEGITIMATE CLAIM OF

  ENTITLEMENT TO A PROPERTY INTEREST UNDER THE FIFTH AMENDMENT AND

  HIS EMPLOYMENT COULD NOT BE TERMINATED WITHOUT NOTICE AND A FULL

  EVIDENTIARY HEARING.  ON THE OTHER HAND, THE GOVERNMENT AS AN

  EMPLOYER MUST HAVE DISCRETION EXPEDITIOUSLY TO REMOVE EMPLOYEES

  WHO HINDER EFFICIENT OPERATION.  SINCE THE PROCEDURES UNDER THE

  ACT AND REGULATIONS MINIMIZE THE RISK OR ERROR IN THE INITIAL

  REMOVAL DECISION AND PROVIDE FOR A POST-REMOVAL EVIDENTIARY

  HEARING WITH REINSTATEMENT AND BACKPAY SHOULD THAT DECISION BE

  WRONGFUL, A REASONABLE ACCOMMODATION COMPORTING WITH DUE PROCESS

IS PROVIDED BETWEEN THE COMPETING INTERESTS OF THE EMPLOYEE AND

  THE GOVERNMENT AS EMPLOYER.  PP. 164 - 171. 

REHNQUIST, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN

  OPINION, IN WHICH BURGER, C.J., AND STEWART, J., JOINED.  POWELL,

  J., FILED AN OPINION CONCURRING IN PART AND CONCURRING IN THE

  RESULT IN PART, IN WHICH BLACKMUN, J., JOINED, POST, P. 164. 

  WHITE, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN

  PART, POST, P. 171.  DOUGLAS, J., FILED A DISSENTING OPINION,

  POST, P. 203.  MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH

  DOUGLAS AND BRENNAN, JJ., JOINED, POST, P. 206. 

MR. JUSTICE REGNQUIST ANNOUNCED THE JUDGMENT OF THE COURT IN AN
OPINION IN WHICH THE CHIEF JUSTICE AND MR. JUSTICE STEWART JOIN. 

PRIOR TO THE EVENTS LEADING TO HIS DISCHARGE, APPELLEE WAYNE KENNEDY
/1/  WAS A NONPROBATIONARY FEDERAL EMPLOYEE IN THE COMPETITIVE CIVIL
SERVICE.  HE WAS A FIELD REPRESENTATIVE IN THE CHICAGO REGIONAL OFICE
OF THE OFFICE OF ECONOMIC OPPORTUNITY (OEO).  IN MARCH 1972, HE WAS
REMOVED FROM THE FEDERAL SERVICE PURSUANT TO THE PROVISIONS OF THE
LLOYD-LA FOLLETTE ACT, 5 U.S.C. 7501, AFTER WENDELL VERDUIN, THE
REGIONAL DIRECTOR OF THE OEO, UPHELD WRITTEN ADMINISTRATIVE CHARGES
MADE IN THE FORM OF A "NONIFICATION OF PROPOSED ADVERSE ACTION"
AGAINST APPELLEE.  THE CHARGES LISTED FIVE EVENTS OCCURRING IN NOVEMBER
AND DECEMBER 1971; THE MOST SERIOUS OF THE CHARGES WAS THAT APPELLEE
"WITHOUT ANY PROOF WHATSOEVER AND IN RECKLESS DISREGARD OF THE ACTUAL
FACTS"  KNOWN TO HIM OR REASONABLY DISCOVERABLE BY HIM HAD PUBLICLY
STATED THAT VERDUIN AND HIS ADMINISTRATIVE ASSISTANT HAD ATTEMPTED TO
BRIBE A REPRESENTATIVE OF A COMMUNITY ACTION ORGANIZATION WITH THICH
THE OEO HAD DEALINGS.  THE ALLEGED BRIBE CONSISTED OF AN OFFER OF A
$100,000 GRANT OF OEO FUNDS IF THE REPRESENTATIVE WOULD SIGN A
STATEMENT AGAINST APPELLEE AND ANOTHER OEO EMPLOYEE. 

APPELLEE WAS ADVISED OF HIS RIGHT UNDER REGULATIONS PROMULGATED BY
THE CIVIL SERVICE COMMISSION AND THE OEO TO REPLY TO THE CHARGES ORALLY
AND IN WEITING, AND TO SUBMIT AFFIDAVITS TO VERKUIN.  HE WAS ALSO
ADVISED THAT THE MATERIAL ON WHICH THE NOTICE WAS BASED WAS AVAILABLE
FOR HIS INSPECTION IN THE REGIONAL OFFICE, AND THAT A COPY OF THE
MATERIAL WAS ATTACHED TO THE NOTICE OF PROPOSED ADVERSE ACTION. 

APPELLEE DID NOT RESPOND TO THE SUBSTANCE OF THE CHARGES AGAINST
HIM, BUT INSTEAD ASSERTED THAT THE CHARGES WERE UNLAWFUL BECAUSE HE HAD
A RIGHT TO A TRIAL-TYPE HEARING BEFORE AN IMPARTIAL HEARING OFFICER
BEFORE HE COULD BE REMOVED FROM HIS EMPLOYMENT, AND BECAUSE STATEMENTS
MADE BY HIM WERE PROTECTED BY THE FIRST AMENDMENT TO THE UNITED STATES
CONSTITUTION.  /2/  ON MARCH 20, 1972, VERDUIN NITIFIED APPELLEE IN
WRITING THAT HE WOULD BE REMOVED FROM HIS POSITION AT THE CLOSE OF
BUSINESS ON MARCH 27, 1972.  APPELLEE WAS ALSO NOTIFIED OF HIS RIGHT TO
APPEAL VERDUIN'S DESCISION EITHER TO THE OEO OR TO THE CIVIL SERVICE
COMMISSION. 

APPELLEE THEN INSTITUTED THIS SUIT IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF ILLINOIS ON BEHALF OF HIMSELF AND
OTHERS SIMILARLY SITUATED, SEEKING BOTH INJUNCTIVE AND DECLARATORY
RELIEF.  IN HIS AMENDED COMPLAINT, /3/  APPELLEE CONTENDED THAT THE
STANDARDS AND PROCEDURES ESTABLISHED BY AND UNDER THE LLOYD-LA FOLLETTE
ACT FOR THE REMOVAL OF NONPROBATIONARY EMPLOYEES FROM THE FEDERAL
SERVICE UNWARRANTEDLY INTERFERE WITH THOSE EMPLOYEES' FREEDOM OF
EXPRESSION AND DENY THEM PROCEDURAL DUE PROCESS OF LAW.  THE THREE
JUDGE DISTRICT COURT, CONVENED PURSUANT TO 28 U.S.C. 2282 AND 2284,
GRANTED SUMMARY JUDGMENT FOR APPELLEE.  349 F. SUPP. 863.  THE COURT
HELD THAT THE DISCHARGE PROCEDURES AUTHORIZED BY THE ACT AND ATTENDANT
CIVIL SERVICE COMMISSION AND OEO REGULATIONS DENIED APPELLEE DUE
PROCESS OF LAW BECAUSE THEY FAILED TO PROVIDE FOR A TRIAL-TYPE HEARING
BEFORE AN IMPARTIAL AGENCY OFFICIAL PRIOR TO REMOVAL; THE COURT ALSO
HELD THE ACT AND IMPLEMENTING REGULATIONS UNCONSTITUTIONALLY VAHUE
BECAUSE THEY FAILED TO FURNISH SUFFICIENTLY PRECISE GUIDELINES AS TO
WHAT KIND OF SPEECH MAY BE MADE THE BASIS OF A REMOVAL ACTION.  THE
COURT ORDERED THAT APPELLEE BE REINSTATED IN HIS FORMER POSITION WITH
BACKPAY, AND THAT HE BE ACCORDED A HEARING PRIOR TO REMOVAL IN ANY
FUTURE REMOVAL PROCEEDINGS.  APPELLANTS WERE ALSO ENJOINED FROM FURTHER
ENFORCEMENT OF THE LLOYD-LA FOLLETTEE ACT, AND IMPLEMENTING RULES, AS
"CONSTRUED TO REGULATE THE SPEECH OF COMPETITIVE SERVICE EMPLOYEES." 
/4/

        I 

THE NUMEROUS AFFIDAVITS SUBMITTED TO THE DISTRICT COURT BY BOTH
PARTIES NOT UNEXPECTEDLY PORTRAY TWO WIDELY DIFFERING VERSIONS OF THE
FACTS WHICH GAVE RISE TO THIS LAWSUIT.  SINCE THE DISTRICT COURT
GRANTED SUMMARY JUDGMENT TO APPELLEE, IT WAS REQUIRED TO RESOLVE ALL
GENUINE DISPUTES AS TO ANY MATERIAL FACTS IN FAVOR OF APPELLANTS, AND
WE THEREFORE TAKE AS TRUE FOR PURPOSES OF THIS OPINION THE MATERIAL
PARTICULARS OF APPELLEE'S CONDUCT WHICH WERE SET FORTH IN THE
NOTIFICATION OF PROPOSED ADVERSE ACTION DATED FEBRUARY 18, 1972.  THE
DISTRICT COURT'S HOLDING NECESSARILY EMBODIES THE LEGAL CONCLUSIONS
THAT, EVEN THOUGH ALL OF THESE FACTUAL STATEMENTS WERE TRUE, THE
PROCEDURE WHICH THE GOVERNMENT PROPOSED TO FOLLOW IN THIS CASE WAS
CONSTITUTIONALLY INSUFFICIENT TO ACCOMPLISH APPELLEE'S DISCHARGE, AND
THE STANDARD BY WHICH HIS CONDUCT WAS TO BE JUDGED IN THE COURSE OF
THOSE PROCEDURES INFRINGED HIS RIGHT OF FREE SPEECH PROTECTED BY THE
FIRST AMENDMENT. 

THE STATUTORY PROVISIONS WHICH THE DISTRICT COURT HELD INVALID ARE
FOUND IN 5 U.S.C. 7501.  SUBSECTION (A) OF THAT SECTION PROVIDES THAT
"(AN INDIVIDUAL IN THE COMPETITIVE SERVICE MAY BE REMOVED OR SUSPENDED
WITHOUT PAY ONLY FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE
SERVICE." 

SUBSECTION (B) ESTABLISHES THE ADMINISTRATIVE PROCEDURES BY WHICH AN
EMPLOYEE'S RIGHTS UNDER SUBSECTION (A) ARE TO BE DETERMINED,
PROVIDING: 

"(B) AN INDIVIDUAL IN THE COMPETITIVE SERVICE WHOSE REMOVAL OR
SUSPENSION WITHOUT PAY IS SOUGHT IS ENTITLED TO REASONS IN WRITING AND
TO--, 

"(1) NOTICE OF THE ACTION SOUGHT AND OF ANY CHARGES PREFERRED
AGAINST HIM; 

     "(2) A COPY OF THE CHARGES; 

"(3) A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO THE CHARGES,
WITH AFFIDAVITS; AND 

     "(4) A WRITTEN DECISION ON THE ANSWER AT THE EARLIEST

  PRACTICABLE DATE.  "EXAMINATION OF WITNESSES, TRIAL, OR HEARING

  IS NOT REQUIRED BUT MAY BE PROVIDED IN THE DISCRETION OF THE

  INDIVIDUAL DIRECTING THE REMOVAL OR SUSPENSION WITHOUT PAY. 

  COPIES OF THE CHARGES, THE NOTICE OF HEARING, THE ANSWER, THE

  REASONS FOR AND THE ORDER OF REMOVAL OR SUSPENSION WITHOUT PAY,

  AND ALSO THE REASONS FOR REDUCTION IN GRADE OR PAY, SHALL BE MADE

  A PART OF THE RECORDS OF THE EMPLOYING AGENCY, AND, ON REQUEST,

  SHALL BE FURNISHED TO THE INDIVIDUAL AFFECTED AND TO THE CIVIL

  SERVICE COMMISSION." 

THIS CODIFICATION OF THE LLOYD-LA FOLLETTE ACT IS NOW SUPPLEMENTED
BY THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, AND, WITH RESPECT
TO THE OEO, BY THE REGULATIONS AND INSTRUCTIONS OF THAT AGENCY.  BOTH
THE COMMISSION AND THE OEO HAVE BY REGULATION GIVEN FURTHER SPECIFIC
CONTENT TO THE GENERAL REMOVAL STANDARD IN SUBSECTION (A) OF THE ACT. 
THE REGULATIONS OF THE COMMISSION /5/  AND THE OEO, /6/  IN NEARLY
IDENTICAL LANGUAGE, REQUIRE THAT EMPLOYEES "AVOID ANY ACTION . . .
WHICH MIGHT RESULT IN, OR CREATE THE APPEARANCE OF . . . (AFFECTING
ADVERSELY THE CONFIDENCE OF THE PUBLIC IN THE INTEGRITY OF (OEO AND)
THE GOVERNMENT," AND THAT EMPLOYEES NOT "ENGAGE IN CRIMINAL, INFAMOUS,
DISHONEST, IMMORAL, OR NOTORIOUSLY DISGRACEFUL OR OTHER CONDUCT
PREJUDICIAL TO THE GOVERNMENT."  THE OEO FURTHER PROVIDES BY REGULATION
THAT ITS OFFICE OF GENERAL COUNSEL IS AVAILABLE TO SUPPLY COUNSELING ON
THE INTERPRETATION OF THE LAWS AND REGULATIONS RELEVANT TO THE CONDUCT
OF OEO EMPLOYEES.  /7/ 

BOTH THE COMMISSION AND THE OEO ALSO FOLLOW REGULATIONS ENLARGING
THE PROCEDURAL PROTECTIONS ACCORDED BY THE ACT ITSELF.  /8/  THE
COMMISSIONS'S REGULATIONS PROVIDE, INTER ALIA, THAT THE EMPLOYING
AGENCY MUST GIVE 30 DAYS' ADVANCE WRITTEN NOTICE TO THE EMPLOYEE PRIOR
TO REMOVAL, AND MAKE AVAILABLE TO HIM THE MATERIAL ON WHICH THE NOTICE
IS BASED.  /9/  THEY ALSO PROVIDE THAT THE EMPLOYEE SHALL HAVE AN
OPPORTUNITY TO APPEAR BEFORE THE OFFICIAL VESTED WITH AUTHORITY TO MAKE
THE REMOVAL DECISION IN ORDER TO ANSWER THE CHARGES AGAINST HIM, /10/
THAT THE EMPLOYEE MUST RECEIVE NOTICE OF AN ADVERSE DECISION ON OR
BEFORE ITS EFFECTIVE DATE, AND THAT THE EMPLOYEE MAY APPEAL FROM AN
ADVERSE DECISION.  /11/  THIS APPEAL MAY BE EITHER TO A REVIEWING
AUTHORITY WITHIN THE EMPLOYING AGENCY, /12/  OR DIRECTLY TO THE
COMMISSION, /13/  AND THE EMPLOYEE IS ENTITLED TO AN EVIDENTIARY TRAIL
TYPE HEARING AT THE APPEAL STAGE OF THE PROCEEDING.  /14/  THE ONLY
TRIAL-TYPE HEARING AVAILABLE WITHIN THE OEO IS, BY VIRTUE OF TIS
REGULATIONS AND PRACTICE, TYPICALLY HELD AFTER ACTUAL REMOVAL; /15/
BUT IF THE EMPLOYEE IS REINSTATED ON APPEAL, HE RECEIVES FULL BACKPAY,
LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT
PERIOD.  /16/ 

WE MUST FIRST DECIDE WHETHER THESE PROCEDURES ESTABLISHED FOR THE
PURPOSE OF DETERMINING WHETHER THERE IS "CAUSE" UNDER THE LLOYD-LA
FOLLETTE ACT FOR THE DISMISSAL OF A FEDERAL EMPLOYEE COMPORT WITH
PROCEDURAL DUE PROCESS, AND THEN DECIDE WHETHER THAT STANDARD OF
"CAUSE" FOR FEDERAL EMPLOYEE DISMISSLAS WAS WITHIN THE CONSTITUTIONAL
POWER OF CONGRESS TO ADOPT. 

FOR ALMOST THE FIRST CENTURY OF OUR NATIONAL EXISTENCE, FEDERAL
EMPLOYMENT WAS REGARDED AS AN ITEM OF PATRONAGE, WHICH COULD BE
GRANTED, WITHHELD, OR WITHDRAWN FOR WHATEVER REASONS MIGHT APPEAL TO
THE RESPONSIBLE EXECUTIVE HIRING OFFICER.  FOLLOWING THE CIVIL WAR,
GRASS-ROOTS SENTIMENT FOR "CIVIL SERVICE REFORM" BEGAN TO GROW, AND IT
WAS APPARENTLY BROUGHT TO A HEAD BY THE ASSASSINATION OF PRESIDENT
JAMES A. GARFIELD ON JULY 2, 1881.  GARFIELD, HAVING THEN HELD OFFICE
ONLY FOUR MONTHS, WAS ACCOSTED IN WASHINGTON'S UNION STATION AND SHOT
BY A DISSATISFIED OFFICE SEEKER WHO BELIEVED THAT THE PRESIDENT HAD
BEEN INSTRUMENTAL IN REFUSING HIS REQUEST FOR APPOINTMENT AS UNITED
STATES CONSUL IN PARIS.  DURING THE SUMMER, WHILE PRESIDENT GARFIELD
LINGERED PRIOR TO HIS DEATH IN SEPTEMBER, DELEGATES FROM 13 CIVIL
SERVICE REFORM ASSOCIATIONS MET AND FORMED THE NATIONAL CIVIL SERVICE
REFORM LEAGUE.  RESPONDING TO PUBLIC DEMAND FOR REFORM LED BY THIS
ORGANIZATION, CONGRESS IN JANUARY 1883 ENACTED THE PENDLETON ACT. 
/17/ 

WHILE THE PENDLETON ACT IS REGARDED AS THE KEYSTONE IN THE PRESENT
ARCH OF CIVIL SERVICE LEGISLATION, BY PRESENT-DAY STANDARDS IT WAS
QUITE LIMITED IN ITS APPLICATION.  IT DEALT ALMOST EXCLUSIVELY WITH
ENTRY INTO THE FEDERAL SERVICE, AND HARDLY AT ALL WITH TENURE,
PROMOTION, REMOVAL, VENTERANS' PREFERENCE, PENSIONS, AND OTHER SUBJECTS
ADDRESSED BY SUBSEQUENT CIVIL SERVICE LEGISLATION.  THE PENDLETON ACT
PROVIDED FOR THE CREATION OF A CLASSIFIED CIVIL SERVICE, AND REQUIRED
COMPETITIVE EXAMINATION FOR ENTRY INTO THAT SERVICE.  ITS ONLY
PROVISION WITH RESPECT TO SEPARATION WAS TO PROHIBIT REMOVAL FOR THE
FAILURE OF AN EMPLOYEE IN THE CLASSIFIED SERVICE TO CONTRIBUTE TO A
POLITICAL FUND OR TO RENDER ANY POLITICAL SERVICE.  /18/ 

FOR 16 YEARS FOLLOWING THE EFFECTIVE DATE OF THE PENDLETON ACT, THIS
LAST-MENTIONED PROVISION OF THAT ACT APPEARS TO HAVE BEEN THE ONLY
STATUTORY OR REGULATORY LIMITATION ON THE RIGHT OF THE GOVERNMENT TO
DISCHARGE CLASSIFIED EMPLOYEES.  IN 1897, PRESIDENT WILLIAM MCKINLEY
PROMULGATED CIVIL SERVICE RULE II, /19/  WHICH PROVIDED THAT REMOVAL
FROM THE COMPETITIVE CLASSIFIED SERVICE SHOULD NOT BE MADE EXCEPT FOR
JUST CAUSE AND FOR REASONS GIVEN IN WRITING.  WHILE JOB TENURE WAS
THEREBY ACCORDED PROTECTION, THERE WERE NO ADMINISTRATIVE APPEAL RIGHTS
FOR ACTION TAKEN IN VIOLATION OF THIS RULE AND THE COURTS DECLINED TO
JUDICIALLY ENFORCE IT.  THUS MATTERS STOOD WITH RESPECT TO GOVERNMENTAL
AUTHORITY TO REMOVE FEDERAL EMPLOYEES UNTIL THE ENACTMENT OF THE LLOYD
LA FOLLETTE ACT. 

THE LLOYD-LA FOLLETTE ACT WAS ENACTED AS ONE SECTION OF THE POST
OFFICE DEPARTMENT APPROPRIATION BILL FOR THE FISCAL YEAR 1913.  THAT
ACT GUARANTEED THE RIGHT OF FEDERAL EMPLOYEES TO COMMUNICATE WITH
MEMBERS OF CONGRESS, AND TO JOIN EMPLOYEE ORGANIZATIONS.  IT ALSO
SUBSTANTIALLY ENACTED AND ENLARGED UPON CIVIL SERVICE RULE II IN THE
FOLLOWING LANGUAGE: 

"(NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES
SHALL BE REMOVED THEREFROM EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE
EFFICIECY OF SAID SERVICE AND FOR REASONS GIVEN IN WRITING, AND THE
PERSON WHOSE REMOVAL IS SOUGHT SHALL HAVE NOTICE OF THE SAME AND OF ANY
CHARGES PREFERRED AGAINST HIM, AND BE FURNISHED WITH A COPY THEREOF,
AND ALSO BE ALLOWED A REASONABLE TIME FOR PERSONALLY ANSWERING THE SAME
IN WRITING; AND AFFIDAVITS IN SUPPORT THEREOF; BUT NO EXAMINATION OF
WITNESSES NOR ANY TRIAL OR HEARING SHALL BE REQUIRED EXCET IN THE
DISCRETION OF THE OFFICER MAKING THE REMOVAL; AND COPIES OF CHARGES,
NOTICE OF HEARING, ANSWER, REASONS FOR REMOVAL, AND OF THE ORDER OF
REMOVAL SHALL BE MADE A PART OF THE RECORDS OF THE PROPER DEPARTMENT OR
OFFICE, AS SHALL ALSO THE REASONS FOR REDUCTION IN RANK OR
COMPENSATION; AND COPIES OF THE SAME SHALL BE FURNISHED TO THE PERSON
AFFECTED UPON REQUEST, AND THE CIVIL SERVICE COMMISSION ALSO SHALL,
UPON REQUEST, BE FURNISHED COPIES OF THE SAME.  . ."  /20/ 

THAT ACT, AS NOW CODIFIED, 5 U.S.C. 7501, TOGETHER WITH THE
ADMINISTRATIVE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION AND
THE OEO, PROVIDED THE STATUTORY AND ADMINISTRATIVE FRAMEWORK WHICH THE
GOVERNMENT CONTENDS CONTROLLED THE PROCEEDINGS AGAINST APPELLEE.  THE
DISTRICT COURT, IN ITS RULING ON APPELLEE'S PROCEDURAL CONTENTIONS, IN
EFFECT HELD THAT THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION
PROHIBITED CONGRESS, IN THE LLOYD-LA FOLLETTE ACT, FROM GRANTING
PROTECTION AGAINST REMOVAL WITHOUT CAUSE AND AT THE SAME TIME--INDEED,
IN THE SAME SENTENCE--SPECIFYING THAT THE DETERMINATION OF CAUSE SHOULD
BE WITHOUT THE FULL PANOPLY OF RIGHTS WHICH ATTEND A TRIAL-TYPE
ADVERSARY HEARING.  WE DO NOT BELIEVE THAT THE CONSTITUTION SO LIMITS
CONGRESS IN THE MANNER IN WHICH BENEFITS MAY BE EXTENDED TO FEDERAL
EMPLOYEES.     APPELLEE RECOGNIZES THAT OUR RECENT DECISIONS IN BOARD
OF REGENTS V. ROTH, 408 U.S. 564 (1972), AND PERRY V. SINDERMANN, 408
U.S. 593 (1972), ARE THOSE MOST CLOSELY IN POINT WITH RESPECT TO THE
PROCEDURAL RIGHTS CONSTITIONALLY GUARANTEED PUBLIC EMPLOYEES IN
CONNECTION WITH THEIR DISMISSAL FROM EMPLOYMENT.  APPELLEE CONTENDS
THAT HE HAD A PROPERTY INTEREST OR AN EXPECTANCY OF EMPLOYMENT WHICH
COULD NOT BE DIVESTED WITHOUT FIRST AFFORDING HIM A FULL ADVERSARY
HEARING. 

IN BOARD OF REGENTS V. ROTH, WE SAID: 

     "PROPERTY INTEREST, OF COURSE, ARE NOT CREATED BY THE

  CONSTITUTION.  RATHER, THEY ARE CREATED AND THEIR DIMENSIONS ARE

  DEFINED BY EXISTING RULES OR UNDERSTANDINGS THAT STEM FROM AN

  INDEPENDENT SOURCE SUCH AS STATE LAW--RULES OR UNDERSTANDINGS

  THAT SECURE CERTAIN BENEFITS AND THAT SUPPORT CLAIMS OF

  ENTITLEMENT TO THOSE BENEFITS."  408 U.S., AT 577. 

HERE APPELLEE DID HAVE A STATUTORY EXPECTANCY THAT HE NOT BE REMOVED
OTHER THAN FOR "SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF (THE)
SERVICE."  BUT THE VERY SECTION OF THE STATUTE WHICH GRANTED HIM THAT
RIGHT, A RIGHT WHICH HAD PREVIOUSLY EXISTED ONLY BY CIRTUE OF
ADMINISTRATIVE REGULATION, EXPRESSLY PROVIDED ALSO FOR THE PROCEDURE BY
WHICH "CAUSE" WAS TO BE DETERMINED, AND EXPRESSLY OMITTED THE
PROCEDURAL GUARANTEES WHICH APPELLEE INSISTS ARE MANDATED BY THE
CONSTITUTION.  ONLY BY BIFURCATING THE VERY SENTENCE OF THE ACT OF
CONGRESS WHICH CONFERRED UPON APPELLEE THE RIGHT NOT TO BE REMOVED SAVE
FOR CAUSE COULD IT BE SAID THAT HE HAD AN EXPECTANCY OF THAT
SUBSTANTIVE RIGHT WITHOUT THE PROCEDURAL LIMITATIONS WHICH CONGRESS
ATTACHED TO IT.  IN THE AREA OF FEDERAL REGULATION OF GOVERNMENT
EMPLOYEES, WHERE IN THE ABSENCE OF STATUTORY LIMITATION HTE
GOVERNMENTAL EMPLOYER HAS HAD VIRTUALLY UNCOMTROLLED LATITUDE IN
DECISIONS AS TO HIRING AND FIRING, CAFETERIA WORKERS V. MCELROY, 367
U.S. 886, 896 - 897 (1961), WE DO NOT BELIEVE THAT A STATUTORY
ENACTMENT SUCH AS THE LLOYD-LA FOLLETTE ACT MAY BE PARSED AS DISCRETELY
AS APPELLEE URGES.  CONGRESS WAS OBVIOUSLY INTENT ON ACCORDING A
MEASURE OF STATUTORY JOB SECURITY TO GOVERNMENTAL EMPLOYEES WHICH THEY
HAD NOT PREVIOUSLY ENJOYED, BUT WAS LIKEWISE INTENT ON EXCLUDING MORE
ELABORATE PROCEDURAL REQUIREMENTS WHICH IT FELT WOULD MAKE THE
OPERATION OF THE NEW SCHEME UNNECESSARILY BURDENSOME IN PRACTICE. 
WHERE THE FOCUS OF LEGISLATION WAS THUS STRONGLY ON THE PROCEDURAL
MECHANISM FOR INFORCING THE SUBSTANTIVE RIGHT WHICH WAS SIMULTANIOUSLY
CONFERRED, WE DECLINE TO CONCLUDE THAT THE SUBSTANTIVE RIGHT MAY BE
VIEWED WHOLLY APART FROM THE PROCEDURE PROVIDED FOR ITS ENFORCEMENT. 
THE EMPLOYEE'S STATUTORILY DEFINED RIGHT IS NOT A GUARANTEE AGAINST
REMOVAL WITHOUT CAUSE IN THE ABSTRACT, BUT SUCH A GUARANTEE AS ENFORCED
BY THE PROCEDURES WHICH CONGRESS HAS DESIGNATED FOR THE DETERMINATION
OF CAUSE. 

THE COURT HAS PREVIOUSLY VIEWED SHEPTICALLY THE ACTION OF A LITIGANT
IN CHALLENGING THE CONSTITUTIONALITY OF PORTIONS OF A STATUTE UNDER
WHICH IT HAS SIMULTANIOUSLY CLAIMED BENEFITS.  IN FAHEY V. MALLONEE,
332 U.S. 245 (1974), IT WAS OBSERVED: 

     "IN THE NAME AND RIGHT OF THE ASSOCIATION IT IS NOW BEING
ASKED

  THAT THE ACT UNDER WHICH IT HAS ITS EXISTENCE BE STRUCK DOWN IN

IMPORTANT PARTICULARS, HARDLY SEVERABLE FROM THOSE PROVISIONS

  WHICH GRANT ITS RIGHT TO EXIST.  . . IT WOULD BE INTOLERABLE THAT

  THE CONGRESS SHOULD ENDOW AN ASSOCIATION WITH THE RIGHT TO

  CONDUCT A PUBLIC BANKING BUSINESS ON CERTAIN LIMITATIONS AND THAT

  THE COURT AT THE BEHEST OF THOSE WHO TOOK ADVANTAGE FROM THE

  PRIVILEGE SHOULD REMOVE THE LIMITATIONS INTENDED FOR PUBLIC

  PROTECTION.  IT WOULD BE DIFFICULT TO IMAGINE A MORE APPROPRIATE

  SITUATION IN WHICH TO APPLY THE DOCTRINE THAT ONE WHO UTILIZES AN

  ACT TO GAIN ADVANTAGES OF CORPORATE EXISTENCE IS ESTOPPED FROM

QUESTIONING THE VALIDITY OF ITS VITAL CONDITIONS."  ID., AT 255 -

  256.  "IT IS AN ELEMENTARY RULE OF CONSTITUTIONAL LAW THAT ONE

  MAY NOT 'RETAIN THE BENEFITS OF AN ACT WHILE ATTACKING THE

  CONSTITUTIONALITY OF ONE OF ITS IMPORTANT CONDITIONS.'  UNITED

  STATES V. SAN FRANCISCO, 310 U.S. 16, 29.  AS FORMULATED BY MR.

  JUSTICE BRANDEIS, CONCURRING IN ASHWANDER V. TENNESSEE VALLEY

  AUTHORITY, 297 U.S. 288, 348, 'THE COURT WILL NOT PASS UPON THE

  CONSTITUTIONALITY OF A STATUTE AT THE INSTANCE OF ONE WHO HAS

  AVAILED HIMSELF OF ITS BENEFITS.'"  ID., AT 255. 

THIS DOCTRINE HAS UNQUESTIONABLY BEEN APPLIED UNEVENLY IN THE PAST, AND
OBSERVED AS OFTEN AS NOT IN THE BREACH.  WE BELIEVE THAT AT THE VERY
LEAST IT GIVES ADDED WEIGHT TO OUR CONCLUSION THAT WHERE THE GRANT OF A
SUBSTANTIVE RIGHT IS INEXTRICABLY INTERTWINED WITH THE LIMITATIONS ON
THE PROCEDURES WHICH ARE TO BE EMPLOYED IN DETERMINING THAT RIGHT, A
LITIGANT IN THE POSITION OF APPELLEE MUST TAKE THE BITTER WITH THE
SWEET. 

TO CONCLUDE OTHERWISE WOULD REQUIRE US TO HOLD THAT ALTHOUGH
CONGRESS CHOSE TO ENACT WHAT WAS ESSENTIALLY A LEGISLATIVE COMPROMISE,
AND WITH UNMISTAKABLE CLARITY GRANTED GOVERNMENTAL EMPLOYEES SECURITY
AGAINST BEING DISMISSED WITHOUT "CAUSE", BUT REFUSED TO ACCORD THEM A
FULL ADVERSARY HEARING FOR THE DETERMINATION OF "CAUSE", IT WAS
CONSTITUTIONALLY DISABLED FROM MAKING SUCH A CHOICE.  WE WOULD BE
HOLDING THAT FEDERAL EMPLOYEES HAD BEEN GRANTED, AS A RESULT OF THE
ENACTMENT OF THE LLOYD-LA FOLLETE ACT, NOT MERELY THAT WHICH CONGRESS
HAD GIVEN THEM IN THE FIRST PART OF A SENTENCE, BUT THAT WHICH CONGRESS
HAD EXPRESSLY WITHHELD FROM THEM IN THE LATTER PART OF THE SAME
SENTENCE.  NEITHER THE LANGUAGE OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT NOR OUR CASES CONSTRUING IT REQUIRE ANY SUCH HOLDING
RESTRICTIONS ON LEGISLATIVE AUTHORITY IN THIS AREA. 

APPELLEES URGE THAT THE JUDGMENT OF THE DISTRICT COURT MUST BE
SUSTAINED ON THE AUTHORITY OF CASES SUCH AS GOLDBERG V. KELLY, 397 U.S.
254 (1970), FUENTES V. SHEVIN, 407 U.S. 67 (1972), BELL V. BURSON, 402
U.S. 535 (1971), AND SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337
(1969).  GOLDBERG HELD THAT WELFARE RECIPIENTS ARE ENTITLED UNDER THE
DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO AN
ADVERSARY HEARING BEFORE THEIR BENEFITS ARE TERMINATED.  FUENTES V.
SHEVIN HELD THAT A HEARING WAS GENERALLY REQUIRED BEFORE ONE COULD HAVE
HIS PROPERTY SEIZED UNDER A WRIT OF REPLEVIN.  IN BELL V. BURSON THE
COURT HELD THAT DUE PROCESS REQUIRED A PROCEDURE FOR DETERMINING
WHETHER THERE WAS A REASONABLE POSSIBLITY OF A JUDGMENT AGAINST A
DRIVEER AS A RESULT OF AN ACCIDENT BEFORE HIS LICENSE AND BEHICLE
REGISTRATION COULD BE SUSPENDED FOR FAILURE TO POST SECURITY UNDER
GEORGIA'S UNINSURED MOTORIST STATUTE.  AND IN SNIADACH V. FAMILY
FINANCE CORP. A WISCONSIN STATUTE PROVIDING FOR PREJUDGMENT GARNISHMENT
WITHOUT NOTICE TO THE DEBTOR OR PRIOR HEARING WAS STRUCK DOWN AS
VIOLATIVE OF THE PRINCIPLES OF DUE PROCESS.  THESE CASES DEAL WITH
AREAS OF THE LAW DISSIMILAR TO ANOTHER AND DISSIMILAR TO THE AREA OF
GOVERNMENT EMPLOYER-EMPLOYEE RELATIONSHIPS WITH WHICH WE DEAL HERE. 
THE TYPES OF "LIBERTY"  AND "PROPERTY" PROTECTED BY THE DUE PROCESS
CLAUSE VARY WIDELY, AND WHAT MAY BE REQUIRED UNDER THAT CLAUSE IN
DEALING WITH ONE SET OF INTERESTS WHICH IT PROTECTS MAY NOT BE REQUIRED
IN DEALING WITH ANOTHER SET INTERESTS. 

"THE VERY NATURE OF DUE PROCESS NEGATES ANY CONCEPT OF INFLEXIBLE
PROCEDURES UNIVERSALLY APPLICABLE TO EVERY IMAGINABLE SITUATION." 
CAFETERIA WORKERS V. MCELROY, 367 U.S., AT 895.  HERE THE PROPERTY
INTEREST WHICH APPELLEE HAD IN HIS EMPLOYMENT WAS ITSELF CONDITIONED BY
THE PROCDURAL LIMITATIONS WHICH HAD ACCOMPANIED THE GRANT OF THAT
INTEREST.  THE GOVERNMENT MIGHT, THEN, UNDER OUR HOLDINGS DEALING WITH
GOVERNMENT EMPLOYEES IN ROTH, SUPRA, AND SINDERMANN, SUPRA,
CONSTITUTIONALLY DEAL WITH APPELLEE'S CLAIMS AS IT PROPOSED TO DO
HERE.  /21/ 

APPELLEE ALSO CONTENDS IN THIS COURT THAT BECAUSE OF THE NATURE OF
THE CHARGES ON WHICH HIS DISMISSAL WAS BASED, HE WAS IN EFFECT ACCUSED
OF DISHONESTY, AND THAT THEREFORE A HEARING WAS REQUIRED BEFORE HE
COULD BE DEPRIVED OF THIS ELEMENT OF HIS "LIBERTY" PROTECTED BY THE
FIFTH AMENDMENT AGAINST DEPRIVATION WITHOUT DUE PROCESS.  IN BOARD OF
REGENTS V. ROTH, 408 U.S., AT 573, WE SAID: 

     "THE STATE, IN DECLINING TO REHIRE THE RESPONDENT, DID NOT
MAKE

  ANY CHARGE AGAINST HIM THAT MIGHT SERIOUSLY DAMAGE HIS STANDING

  AND ASSOCIATIONS IN HIS COMMUNITY.  IT DID NOT BASE THE

  NONRENEWAL OF HIS CONTACT ON A CHARGE, FOR EXAMPLE, THAT HE HAD

  BEEN GUILTY OF DISHONESTY, OR IMMORALITY.  . . . IN SUCH A CASE,

  DUE PROCESS WOULD ACCORD AN OPPORTUNITY TO REFUTE THE CHARGE

  BEFORE UNIVERSITY OFFICIALS."  /22/

THE LIBERTY HERE IMPLICATED BY APPELLANTS' ACTION IS NOT THE ELEMENTAL
FREEDOM FROM EXTERNAL RESTRAINT SUCH AS WAS INVOLVED IN MORRISSEY V.
BREWER, 408 U.S. 471 (1972), BUT IS INSTEAD A SUBSPECIES OF THERIGHT OF
THE INDIVIDUAL "TO ENJOY THOSE PRIVILEGES LONG RECOGNIZED.  . . AS
ESSENTIAL TO THE ORDERLY PURSUIT OF HAPPINESS BY FREE MEN."  MEYER V.
NEBRASKA, 262 U.S. 390, 399 (1923).  BUT THAT LIBERTY IS NOT OFFENDED
BY DISMISSAL FROM EMPLOYMENT ITSELF, BUT INSTEAD BY DISMISSAL BASED
UPON AN UNSUPPORTED CHARGE WHICH COULD WRONGFULLY INJURE THE REPUTATION
OF AN EMPLOYEE.  SINCE THE PURPOSE OF THE HEARING IN SUCH A CASE IS TO
PROVIDE THE PERSON "AN OPPORTUNITY TO CLEAR HIS NAME,"  A HEARING
AFFORDED BY ADMINISTRATIVE APPEAL PROCEDURES AFTER THE ACTUAL DISMISSAL
IS A SUFFICIENT COMPLIANCE WITH THE REQUIREMENTS OF THE DUE PROCESS
CLAUSE.  HERE APPELLEE CHOSE NO TO RELY ON HIS ADMINISTRATIVE APPEAL,
WHICH, IF HIS FACTUAL CONTENTIONS ARE CORRECT, MIGHT WELL HAVE
VINDICATED HIS REPUTATION AND REMOVED ANY WRONGFUL STIGMA FROM HIS
REPUTATION. 

APPELLEE URGES THAT THE DELAYS IN PROCESSING AGENCY AND CIVIL
SERVICE COMMISSION APPEALS, AMOUNTING TO MORE THAN THREE MONTHS IN OVER
50% OF AGENCY APPEALS, /23/  MEAN THAT THE AVAILABLE ADMINISTRATIVE
APPEALS DO NOT SUFFICE TO PROTECT HIS LIBERTY INTEREST RECOGNIZED IN
ROTH.  DURING THE PENDENCY OF HIS ADMINISTRATIVE APPEALS, APPELLEE
ASSERTS, A DISCHARGED EMPLOYEE SUFFERS FROM BOTH THE STIGMA AND THE
CONSEQUENT DISADVANTAGE IN OBTAINING A COMPARABLE JOB THAT RESULT FROM
DISMISSAL FOR CAUSE FROM GOVERNMENT EMPLOYMENT.  WE ASSUME THAT SOME
DELAY ATTENDS VINDICATION OF AN EMPLOYEE'S REPUTATION THROUGHOUT THE
HEARING PROCEDURES PROVIDED ON APPEAL, AND CONCLUDE THAT AT LEAST THE
DELAYS CITED HERE DO NOT ENTAIL ANY SEPARATE DEPRIVATION OF A LIBERTY
INTEREST RECOGNIZED IN ROTH. 

        III 

APPELLEE ALSO CONTENDS THAT THE PROVISIONS OF 5 U.S.C.  7501 (A),
AUTHORIZING REMOVAL OR SUSPENSION WITHOUT PAY "FOR SUCH CAUSE AS WILL
PROMOTE THE EFFICIENCY OF THE SERVICE," ARE VAGUE AND OVERBROAD.  THE
DISTRICT COURT ACCEPTED THIS CONTENTION: 

"BECAUSE EMPLOYEES FACED WITH THE STANDARD OF 'SUCH CAUSE AS WILL
PROMOTE THE EFFICIENCY OF THE SERVICE'  CAN ONLY GUESS AS TO WHAT
UTTERANCES MAY COST THEM THEIR JOBS, THERE CAN BE LITTLE QUESTION THAT
THEY WILL BE DEFERRED FROM EXERCISING THEIR FIRST AMENDMENT RIGHTS TO
THE FULLEST EXTENT."  349 F. SUPP., AT 866. 

A CERTAIN ANOMALY ATTENDS APPELLEE'S SUBSTANTIVE CONSTITUTIONAL
ATTACK ON THE LLOYD- LA FOLLETTE ACT JUST AS IT DOES HIS ATTACK ON ITS
PROCEDURAL PROVISIONS.  PRIOR TO THE ENACTMENT OF THIS LANGUAGE IN
1812, THERE WAS NO SUCH STATUTORY INHIBITION ON THE AUTHORITY OF THE
GOVERNMENT TO DISCHARGE A FEDERAL EMPLOYEE, AND AN EMPLOYEE COULD BE
DISCHARGED WITH OR WITHOUT CAUSE FOR CONDUCT WHICH WAS NOT PROTECTED
UNDER THE FIRST AMENDMENT.  YET UNDER THE DISTRICT COURT'S HOLDING, A
FEDERAL EMPLOYEE AFTER THE ENACTMENT OF THE LLOYD-LA FOLLETTE ACT MAY
NOT EVEN BE DISCHARGED FOR CONDUCT WHICH CONSTITUTES "CAUSE" FOR
DISCHARGE AND WHICH IS NOT PROTECTED BY THE FIRST AMENDMENT, BECAUSE
THE GUARANTEE OF JOB SECURITY WHICH CONGRESS CHOSE TO ACCORD EMPLOYEES
IS "VAGUE" AND "OVERBROAD." 

WE HOLD THE STANDARD OF "CAUSE" SET FORTH IN THE LLOYD-LA FOLLETTE
ACT AS A LIMITATION ON THE GOVERNMENT'S AUTHORITY TO IDSCHARGE FEDERAL
EMPLOYEES IS CONSTITUTIONALLY SUFFICIENT AGAINST THE CHARGES BOTH OF
OVERBREADTH AND OF VAGUENESS.  IN CSC V. LETTER CARRIERS, 413 U.S. 548,
578 - 579 (1973), WE SAID: 

"(THERE ARE LIMITATIONS IN THE ENGLISH LANGUAGE WITH RESPECT TO
BEING BOTH SPECIFIC AND MANAGEABLY BRIEF, AND IT SEEMS TO US THAT
ALTHOUGH THE PROHIBITIONS MAY NOT SATISFY THOSE INTENT ON FINDING FAULT
AT ANY COST, THEY ARE SET OUT IN TERMS THAT THE ORDINARY PERSON
EXERCISING ORDINARY COMMON SENSE CAN SUFFICIENTLY UNDERSTAND AND COMPLY
WITH, WITHOUT SACRIFICE TO THE PUBLIC INTEREST.  '(THE GENERAL CLASS OF
OFFENSE TO WHICH . . . (THE PROVISIONS ARE) DIRECTED IS PLAINLY WITHIN
(THEIR) TERMS . . ., (AND THEY) WILL NOT BE STRUCK DOWN AS VAGUE, EVEN
THOUGH MARGINAL CASES COULD B PUT WHERE DOUBTS MIGHT ARISE.'  UNITED
STATES V. HARRISS, 347 U.S. 612, 618 (1954)."  CONGRESS SOUGHT TO LAY
DOWN AN ADMITTEDLY GENERAL STANDARD, NOT FOR THE PURPOSE OF DEFINING
CRIMINAL CONDUCT, BUT IN ORDER TO GIVE MYRIAD DIFFERENT FEDERAL
EMPLOYEES PERFORMING WIDELY DISPARATE TASKS A COMMON STANDARD OF JOB
PROTECTION.  WE DO NOT BELIEVE THAT CONGRESS WAS CONFINED TO THE CHOICE
OF ENACTING A DETAILED CODE OF EMPLOYEE CONDUCT, OR ELSE GRANTING NO
JOB PROTECTION AT ALL.  AS WE SAID IN COLTEN V. KENTUCKY, 407 U.S. 104
(1972): 

"THE ROOT OF THE VAGUENESS DOCTRINE IS A ROUGH IDEA OF FAIRNESS.  IT
IS NOT A PRINCIPLE DISIGNED TO CONVERT INTO A CONSTITUTIONAL DILEMMA
THE PRACTICAL DIFFICULTIES IN DRAWONG CRIMINAL STATUTES BOTH GNERAL
ENOUGH TO TAKE INTO ACCOUNT A VARIETY OF HUMAN CONDUCT AND SUFFICIENTLY
SPECIFIC TO PROVIDE FAIR WARNING THAT CERTAIN KINDS OF CONDUCT ARE
PROHIBITED."  ID., AT 110.  HERE THE LANGUAGE "SUCH CAUSE AS WILL
PROMOTE THE EFFICENCY OF THE SERVICE" WAS NOT WRITTEN UPON A CLEAN
SLATE IN 1912, AND IT DOES NOT APPEAR ON A CLEAN SLATE NOW.  THE CIVIL
SERVICE COMMISSION HAS INDICATED THAT WHAT MIGHT BE SAID TO BE
LONGSTANDING PRINCIPLES OF EMPLOYER-EMPLOYEE RELATIONSHIPS, LIKE THOSE
DEVELOPED IN THE PRIVATE SECTOR, SHOULD BE FOLLOWED IN INTERPRETING THE
LANGUAGE USED BY CONGRESS.  /24/  MOREOVER, THE OEO HAS PROVIDED BY
REGULATION THAT ITS OFFICE OF GENERAL COUNSEL IS AVAILABLE TO COUNSEL
EMPLOYEES WHO SEEK ADVICE ON THE INTERPRETATION OF THE ACT AND ITS
REGULATIONS.  /25/  WE FOUND THE SIMILAR PROCEDURE OFFERED BY THE CIVIL
SERVICE COMMISSION IMPORTANT IN REJECTION THE RESPONDENTS' VAGUENESS
CONTENTIONS IN CSC V. LETTER CARRIERS, 413 U.S., AT 580. 

THE PHRASE "SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE
SERVICE" AS A STANDARD OF EMPLOYEE JOB PROTECTION IS WITHOUT DOUBT
INTENDED TO AUTHORIZE DISMISSAL FOR SPEECH AS WELL AS OTHER CONDUCT. 
PICKERING V. BOARD OF EDUCATION, 391 U.S. 563, 568 (1968), MAKES IT
CLEAR THAT IN CERTAIN SITUATIONS THE DISCHARGE OF A GOVERNMENT EMPLOYEE
MAY BE BASED ON HIS SPEECH WITHOUT OFFENDING GUARANTEES OF THE FIRST
AMENDMENT: 

"AT THE SAME TIME IT CANNOT BE GAINSAID THAT THE STATE HAS INTERESTS
AS AN EMPLYER IN REGULATING THE SPEECH OF ITS EMPLOYEES THAT DIFFER
SIGNIFICANTLY FROM THOSE IT POSSESSES IN CONNECTION WITH REGULATION OF
THE SPEECH OF THE CITIZENRY IN GENERAL.  THE PROBLEM IN ANY CASE IS TO
ARRIVE AT A BALANCE BETWEEN THE INTERESTS OF THE TEACHER, AS A CITIZEN,
IN COMMENTING UPON MATTERS OF PUBLIC CONCERN AND THE INTEREST OF THE
STATE, AS AN EMPLOYER, IN PROMOTING THE EFFICIENCY OF THE PUBLIC
SERVICES IT PERFORMS THROUGH ITS EMPLOYEES." 

BECAUSE OF THE INFINITE VARIETY OF FACTUAL SITUATIONS IN WHICH
PUBLIC STATEMENTS BY GOVERNMENT EMPLOYEES MIGHT REASONABLY JUSTIFY
DISMISSAL FOR "CAUSE," WE CONCLUDE THAT THE ACT DESCRIBES, AS
EXPLICITLY AS IS REQUIRED, THE EMPLOYEE CONDUCT WHICH IS GROUND FOR
REMOVAL.  THE ESSENTIAL FAIRNESS OF THIS BROAD AND GENERAL REVOAL
STANDARD, AND THE IMPRACTICABILITY OF GREATER SPECIFICITY, WERE
RECOGNIZED BY JUDGE LEVENTHAL, WRITING FOR A PANEL OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IN MEEHAN V.
MACY, 129 U.S. APP. D.C. 217, 230, 392 F. 2D 822, 835 (1968), MODIFIED,
138 U.S. APP. D.C. 38, 425 F.2D 469, AFF'D EN BANC, 138 U.S. APP. D.C.
41, 425 F.2D 472 (1969): 

"(IT IS NOT FEASIBLE OR NECESSARY FOR THE GOVERNMENT TO SPELL OUT IN
DETAIL ALL THAT CONDUCT WHICH WILL RESULT IN RETALIATION.  THE MOST
CONSCIENTIOUS OF CODES THAT DEFINE PROHIBITED CONDUCT OF EMPLOYEES
INCLUSE 'CATCHALL' CLAUSES PROHIBITING EMPLOYEE 'MISCONDUCT',
'IMMORATLITY,' OR 'CONDUCT UNBECOMING.'  WE THINK IT IS INHERENT IN THE
EMPLOYMENT RELATIONSHIP AS A MATTER OF COMMON SENSE IF NOT (OF) COMMON
LAW THAT (A GOVERNMENT) EMPLOYEE . . . CANNOT REASONABLY ASSERT A RIGHT
TO KEEP HIS JOB WHILE AT THE SAME TIME HE ENVEIGHS AGAINST HIS
SUPERIORS IN PUBLIC WITH INTEMPERATE AND DEFAMATORY (CARTOONS).  . .
(DISMISSAL IN SUCH CIRCUMSTANCES NEITHER) COMES AS AN UNFAIR SURPRISE
(NOR) IS SO UNEXPECTED AS TO CHILL . . . FREEDOM TO ENGAGE IN
APPROPRAITE SPEECH." 

SINCE CONGRESS WHEN IT ENACTED THE LLOYD-LA FOLLETTE ACT DID SO WITH
THE TINTENTION OF CONFERRING JOB PROTECTION RIGHTS ON FEDERAL EMPLOYEES
WHICH THEY HAD NOT PREVIOUSLY HAD, IT OBVIOUSLY DID NOT INTEND TO
AUTHORIZE DISCHARGE UNDER THE ACT'S REMOVAL STANDARD FOR SPEECH WHICH
IS CONSTITUTIONALLY PROTECTED.  THE ACT PROSCRIBES ONLY THAT PUBLIC
SPEECH WHICH IMPROPERLY DAMAGES AND IMPAIRS THE REPUTATION AND
EFFICIENCY OF THE EMPLOYING AGENCY, AND IT THUS IMPOSES NO GREATER
CONTROLS ON THE BEHAVIOR OF FEDERAL EMPLOYEES THAN ARE NECESSARY FOR
THE PROTECTION OF THE GOVERNMENT AS AN EMPLOYER.  INDEED THE ACT IS NOT
DIRECTED AT SPEECH AS SUCH, BUT AT EMPLOYEE BEHAVIOR, INCLUDING SPEECH,
WHICH IS DETRIMENTAL TO THE EFFICIENCY OF THE EMPLOYING AGENCY.  WE
HOLD THAT THE LANGUAGE "SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF
THE SERVICE" IN THE ACT EXCLUDES CONSTITUTIONALLY PROTECTED SPEECH, AND
THAT THE STATUTE IS THEREFORE NOT OVERBROAD.  COLTEN V. KENTUCKY, 407
U.S., AT 111.  WE HAVE OBSERVED PREVIOUSLY THAT THE COURT HAD A DUTY TO
CONSTRUE A FEDERAL STATUTE TO AVOID CONSTITUTIONAL QUESTIONS WHERE SUCH
A CONSTRUCTION IS REASONABLY POSSIBLE.  UNITED STATES V. 12 200-FT.
REELS OF FILM, 413 U.S. 123, 130 N. 7 (1973); UNITED STATES V. THERTY
SEVEN PHOTOGRAPHS, 402 U.S. 636, 368 - 369 (1971). 

WE HAVE NO HESITATION, AS DID THE DISTRICT COURT, IN SAYING THAT ON
THE FACTS ALLEGED IN THE ADMINISTRATIVE CHARGES AGAINST APPELLEE, THE
APPROPRAITE TRIBUNAL WOULD INFRINGE NO CONSTITUTIONAL RIGHT OF APPELLEE
IN CONCLUDING THAT THERE WAS "CAUSE" FOR HIS DISCHARGE.  PICKERING V.
BOARD OF EDUCATION, 391 U.S., AT 569.  NOR HAVE WE ANY DOUBT THAT
SATISFACTORY PROOF OF THESE ALLEGATIONS COULD CONSTITUTE "SUCH CAUSE AS
WILL PROMOTE THE EFFICIENCY OF THE SERVICE" WITHIN THE TERMS OF 5
U.S.C. 7501 (A).  APPELLEE'S CONTENTION THEN BOILS DOWN TO THE
ASSERTION THAT ALTHOUGH NO CONSTITUTIONALLY PROTECTED CONDUCT OF HIS
OWN WAS THE BASIS FOR HIS DISCHARGE ON THE GOVERNMENT'S VERSION OF THE
FACTS, THE STATUTORY LANGUAGE IN QUESTION MUST BE DECLARED INOPERATIVE,
AND A SET OF MORE PARTICULARIZED REGULATIONS SUBSTITUTED FOR IT,
BECAUSE THE GENERALITY OF ITS LANGUAGE MIGHT RESULT IN MARGINAL
SITUATIONS IN WHICH OTHER PERSONS SEEKING THE ENGAGE IN
CONSTITUTIONALLY PROTECTED CONDUCT WOULD BE DETERRED FROM DOING SO.
BUT WE HAVE HELD THAT CONGRESS IN ESTABLISHING A STANDARD OF "CAUSE"
FOR DISCHARGE DID NOT INTEND TO INCLUDE WITHIN THAT TERM ANY
CONSTITUTIONALLY PROTECTED CONDUCT.  WE THINK THAT OUR STATEMENT IN
CLOTEN V. KENTUCKY, IS A COMPLETE ANSWER TO APPELLEE'S CONTENTION: 

"AS WE UNDERSTAND THIS CASE, APPELLANT'S OWN CONDUCT WAS NOT IMMUNE
UNDER THE FIRST AMENDMENT AND NEITHER IS HIS CONVICTION VULNERABLE ON
THE GROUND THAT THE STATUTE THREATENS CONSTITUTIONALLY PROTECTED
CONDUCT OF OTHER."  407 U.S., AT 111. 

IN SUM, WE HOLD THAT THE LLOYD-LA FOLLETTE ACT, IN AT ONCE
CONFERRING UPON NONPROBATIONARY FEDERAL EMPLOYEES THE RIGHT NOT TO BE
DISCHARGED EXCEPT FOR "CAUSE"  AND PRESCRIBING THE PROCEDURAL MEANS BY
WHICH THAT RIGHT WAS TO BE PROTECTED, DID NOT CREATE AN EXPECTANCY OF
JOB RETENTION IN THOSE EMPLOYEES REQUIRING PROCEDURAL PROTECTION UNDER
THE DUE PROCESS CLAUSE BEYOND THAT AFFORDED HERE BY THE STATUTE AND
RELATED AGENCY REGULATIONS.  WE ALSO CONCLUDE THAT THE POST-TERMINATION
HEARING PROCEDURES PROVIDED BY THE CIVIL SERVICE COMMISSION AND THE OEO
ADEQUATELY PROTECT THOSE FEDERAL EMPLOYEES' LIBERTY INTEREST,
RECOGNIZED IN ROTH, SUPRA, IN NOT BEING WRONGFULLY STIGNATIZED BY
UNTRUE AND UNSUPPORTED ADMINISTRATIVE CHARGES.  FINALLY, WE HOLD THAT
THE STANDARD OF EMPLOYMENT PROTECTION IMPOSED BY CONGRESS IN THE LLOYD
LA FOLLETTE ACT, IS NOT IMPERMISSIBLY VAGUE OR OVERBROAD IN ITS
REGULATION OF THE SPEECH OF FEDERAL EMPLOYEES AND THEREFORE
UNCONSTITUTIONAL ON ITS FACE.  ACCORDINGLY, WE REVERSE THE DECISION OF
THE DISTRICT COURT ON BOTH GROUNDS ON WHICH IT GRANTED SUMMARY JUDGMENT
AND REMAND FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

   REVERSED AND REMANDED. 

/1/  "APPELLEE" REFERS TO APPELLEE WAYNE KENNEDY, THE NAMED
PLAINTIFF IN THE ORIGINAL COMPLAINT.  THE PARTICIPATION OF THE 18 OTHER
NAMED PLAINTIFFS, WHO WERE ADDED IN THE AMENDED COMPLAINT, SEE N. 3,
INGRA, APPEARS TOL HAVE BEEN LITTLE MORE THAN NOMINAL.  THE AMENDED
COMPLAINT ALLEGED THAT THE ADDED NAMED PLAINTIFFS' EXERCISE OF THEIR
RIGHTS OF FREE SPEECH WERE CHILLED BECAUSE THEY FEARED THAT ANY OFF
DUTY PUBLIC COMMENTS MADE BY THEM WOULD CONSTITUTE GROUNDS FOR
DISCHARGE OR PUNISHMENT UNDER THE LLOYD-LA FOLLETTE ACT.  TWO
CONCLUSORY AFFIDAVITS SUPPORTING THAT BARE ALLEGATION (ONE SIGNED BY
ONE OF THE ADDED NAMED PLAINTIFFS, THE OTHER BY THE REMAINING 17) WERE
FILED IN CONNECTION WITH PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT OR
TEMPORARY INJUNCTION RELIEF. 

/2/  APPELLEE'S RESPONSE TO THE "NOTIFICATION OF PROPOSED ADVERSE
ACTION," MADE THROUGH COUNSEL, SET FORTH BRIEFLY HIS POSITION THAT THE
CHARGES AGAINST HIM WERE UNLAWFUL UNDER THE FIFTH AND FIRST
AMENDMENTS.  ONE OF THE THREE SENTENCES DEVOTED TO HIS FIRST AMENDMENT
CLAIM NOTED PARENTHETICALLY THAT THE "CONVERSATIONS . . . WITH UNION
MEMBERS AND THE PUBLIC" FOR WHICH HE WAS BEING PUNISHED WERE
"INACCURATELY SET FORTH IN THE ADVERSE ACTION."  APPELLEE'S RESPONSE
DID NOT EXPLAIN IN WHAT RESPECTS THE CHARGES AGAINST HIM WERE
INACCURATE, NOR DID IT OFFER ANY ALTERNATIVE VERSION OF THE EVENTS
DESCRIBED IN THE CHARGES. 

/3/  APPELLEE'S ORIGINAL COMPLAINT, FILED MARCH 27, 1972, CONTAINED
TWO COUNTS.  IN THE FIRST COUNT APPELLEE SOUGHT, ON BEHALF OF HIMSELF
AND OTHERS SIMILARLY SITUATED, TO ENJOIN HIS REMOVAL PENDING A FULL,
TRIAL-TYPE HEARING BEFORE AN IMPARTIAL HEARING OFFICER.  IN THE SECOND
COUNT APPELLEE SOUGHT TO ENJOIN HIS REMOVAL FOR THE EXERCISE OF HIS
RIGHTS OF FREE SPEECH.  THE SINGLE-JUDGE COURT REFERRED THE
CONSTITUTIONAL QUESTION PRESENTED IN THE FIRST COUNT TO A THREE-JUDGE
COURT, AND DISMISSED THE SECOND COUNT PENDING APPELLEE'S EXHAUSTION OF
AVAILABLE ADMINISTRATIVE REMEDIES BEFORE THE CIVIL SERVICE COMMISSION. 
APPELLEE THEN AMENDED THE SECOND COUNT OF HIS COMPLAINT TO ALLEGE, ON
BEHALF OF HIMSELF, 18 ADDED NAMED PLAINTIFFS, SEE N. 1, SUPRA, AND
OTHERS SIMILARLY SITUATED, THAT THE LLOYD-LA FOLLETTE ACT'S REMOVAL
STANDARD WAS UNCONSTITUTIONALLY VAGUE AND OVERBROAD AND VIOLATED THE
PLAINTIFFS' FIRST AMENDMENT RIGHTS. 

/4/  THE COURT ORDERED APPELLEE'S REINSTATEMENT BUT DEFERRED
DETERMINATION WHETHER THE SUIT WAS MAINTAINABLE AS A CLASS ACTION. 
APPELLEE'S APPEAL TO THE CIVIL SERVICE COMMISSION WAS FIRST DELAYED AS
A RESULT OF THE PENDENCY OF THIS SUIT, THEN "TERMINATED" BECAUSE OF
APPELLEE'S REINSTATEMENT FOLLOWING THE DECISION OF THE DISTRICT COURT. 

/5/  5 CFR 735.201A, 735.209.  SECTION 735.201A PROVIDES: 

"AN EMPLOYEE SHALL AVOID ANY ACTION, WHETHER OR NOT SPECIFICALLY
PROHIBITED BY THIS SUBPART, WHICH MIGHT RESULT IN, OR CREATE THE
APPEARANCE OF: 

"(A) USING PUBLIC OFFICE FOR PRIVATE GAIN: 

"(B) GIVING PREFERENTIAL TREATMENT TO ANY PERSON; 

"(C) IMPEDING GOVERNMENT EFFICIENCY OR ECONOMY; 

"(D) LOSING COMPLETE INDEPENDENCE OR IMPARTIALITY; 

"(E) MAKING A GOVERNMENT DECISION OUTSIDE OFFICIAL CHANNELS; OR 

"(F) AFFECTING ADVERSELY THE CONFIDENCE OF THE PUBLIC IN THE
INTEGRITY OF THE GOVERNMENT." 


"AN EMPLOYEE SHALL NOT ENGAGE IN CRIMINAL, INFAMOUS, DISHONEST,
IMMORAL, OR NOTORIOUSLY DISGRACEFUL CONDUCT, OR OTHER CONDUCT
PREJUDICIAL TO THE GOVERNMENT." 

/6/  45 CFR 1015.735 - 1, 1015.735 - 24.  SECTION 1015.735 - 1
PROVIDES: 

"THE PURPOSE TO THIS PART IS TO GUIDE OEO EMPLOYEES TOWARD
MAINTAINING THE HIGH STANDARD OF INTEGRITY EXPECTED OF ALL GOVERNMENT
EMPLOYEES.  IT IS INTENDED TO REQUIRE THAT EMPLOYEES AVIOD ANY ACTION
WHICH MIGHT RESULT IN, OR CREATE THE APPEARANCE OF: 

"(A) USING PUBLIC OFFICE FOR PRIVATE GAIN; 

"(B) GIVING PREFERENTIAL TREATMENT TO ANY ORGANIZATION OR PERSON; 

"(C) IMPEDING GOVERNMENT EFFICIENCY OR ECONOMY; 

"(D) MAKING A GOVERNMENT DECISION OUTSIDE OFFICIAL CHANNELS; 

"(E) LOSING COMPLETE INDEPENDENCE OR IMPARTIALITY OF ACTION; OR 

"(F) AFFECTING ADVERSELY THE CONFIDENCE OF THE PUBLIC IN THE 


"NO EMPLOYEE SHALL ENGAGE IN CRIMINAL, INFAMOUS, DISHONEST, IMMORAL,
OR NOTORIOUSLY DISGRACEFUL CONDUCT OR OTHER CONDUCT PREJUDICIAL TO THE
GOVERNMENT." 

/7/  45 CFR 1015.735 - 4.  SECTION 1015.735 - 4 PROVIDES: 

"THE OFFICE OF GENERAL COUNSEL OF OEO IS AVAILABLE TO ADVISE ON THE
INTERPRETATION OF THE PROVISIONS OF THIS PART AND THE OTHER LAWS AND
REGULATIONS RELEVANT TO THE CONDUCT OF OWO EMPLOYEES.  THE GENERAL
COUNSEL IS DESIGNATED AS OEO COUNSELOR FOR THIS PURPOSE." 

/8/  THE CIVIL SERVICE COMMISSION REGULATIONS GOVERNING PROCEDURES
FOR ADVERSE ACTIONS IMPLEMENT, IN ADDITION TO THE LLOYD-LA FOLLETTE
ACT, THE VETERANS' PREFERENCE ACT OF 1944 AND EXECUTIVE ORDER NO.
11491.  THE VETERANS' PREFERENCE ACT, ACT OF JUNE 27, 1944, C. 287, 58
STAT. 387, IMPOSED PROCEDURAL REQUIREMENTS FOR PROCESSING ADVERSE
ACTIONS IN ADDITION TO THOSE IMPOSED BY THE LLOYD-LA FOLLETTE ACT. 
THOSE ADDITIONAL REQUIREMENTS INCLUDE AN OPPORTUNITY FOR THE EMPLOYEE
TO RESPOND ORALLY OR IN WRITING TO THE CHARGES ON WHICH HIS DISMISSAL
IS BASED; THE VETERANS' PREFERENCE ACT ALSO AUTHORIZES CIVIL SERVICE
COMMISSION APPEALS FROM ADVERSE AGENCY DECISIONS.  SEE 5 U.S.C. 7701. 
THE ACT ITSELF APPLIES ONLY TO VETERANS OF MILITARY SERVICE, 5 U.S.C.
2108, 75UU, BUT EXECUTIVE ORDER NO. 11491, PRINTED IN NOTE FOLLOWING 5
U.S.C. 7301, EXTENDS THE ACT'S PROTECTIONS TO ALL NONPREFERENCE
ELIGIBLE EMPLOYEES IN THE CLASSIFIED SERVICE. 

/9/  5 CFR 752.202 (A).  SECTION 752.202 (A) PROVIDES: 

"(A) NOTICE OF PROPOSED ADVERSE ACTION.  (1) EXCEPT AS PROVIDED IN
PARAGRAPH (C) OF THIS SECTION, AN EMPLOYEE AGAINST WHOM ADVERSE ACTION
IS SOUGHT IS ENTITLED TO AT LEAST 30 FULL DAYS' ADVANCE WRITTEN NOTICE
STATING ANY AND ALL REASONS, SPECIFICALLY AND IN DETAIL, FOR THE
PROPOSED ACTION. 

"(2) SUBJECT TO THE PROVISIONS OF SUBPARAGRAPH (3) OF THIS
PARAGRAPH, THE MATERIAL ON WHICH THE NOTICE IS BASED AND WHICH IS
RELIED ON TO SUPPORT THE REASONS IN THAT NOTICE, INCLUDING STATEMENTS
OF WITNESSES, DOCUMENTS, AND INVESTIGATIVE REPORTS OR EXTRACTS
THEREFROM, SHALL BE ASSEMBLED AND MADE AVAILABLE TO THE EMPLOYEE FOR
HIS REVIEW.  THE NOTICE SHALL INFORM THE EMPLOYEE WHERE HE MAY REVIEW
THAT MATERIAL.     "(3) MATERIAL WHICH CANNOT BE DISCLOSED TO THE
EMPLOYEE, OR TO HIS DESIGNATED PHYSICIAN UNDER 294.401 OF THIS CHAPTER,
MAY NOT BE USED BY AN AGENCY TO SUPPORT THE REASONS IN THE NOTICE." 

/10/  5 CFR 752.202 (B).  SECTION 752.202 (B) PROVIDES: 

"(B) EMPLOYEE'S ANSWER.  EXCEPT AS PROVIDED IN PARAGRAPH (C) OF THIS
NOTICE OF PROPOSED ADVERSE ACTION AND FOR FURNISHING AFFIDAVITS IN
SUPPORT OF HIS ANSWER.  THE TIME TO BE ALLOWED DEPENDS ON THE FACTS AND
CIRCUMSTANCES OF THE CASE, AND SHALL BE SUFFICIENT TO AFFORD THE
EMPLOYEE AMPLE OPPORTUNITY TO REVIEW THE MATERIAL RELIED ON BY THE
AGENCY TO SUPPORT THE REASONS IN THE COTICE AND TO PREPARE AN ANSWER
AND SECURE AFFIDAVITS.  THE AGENCY SHALL PROVIDE THE EMPLOYEE A
REASONABLE AMOUNT OF OFFICIAL TIME FOR THESE PURPOSES IF HE IS
OTHERWISE IN AN ACTIVE DUTY STATUS.  IF THE EMPLOYEE ANSWERS, THE
AGENCY SHALL CONSIDER HIS ANSWER IN REACHING ITS DECISION.  THE
EMPLOYEE IS ENTITLED TO ANSWER PERSONALLY, OR IN WRITING, OR BOTH
PERSONALLY AND IN WRITING.  THE RIGHT TO ANSWER PERSONALLY INCLUDES THE
RIGHT TO ANSWER ORALLY IN PERSON BY BEING GIVEN A REASONABLE
OPPORTUNITY TO MAKE ANY REPRESENTATIONS WHICH THE EMPLOYEE BELIEVES
MIGHT SWAY THE FINAL DECISION ON HIS CASE, BUT DOES NOT INCLUDE THE
RIGHT TO A TRIAL OR FORMAL HEARING WITH EXAMINATION OF WITNESSES.  WHEN
THE EMPLOYEE REQUESTS AN OPPORTUNITY TO ANSWER PERSONALLY, THE AGENCY
SHALL MAKE A REPRESENTATIVE OR REPRESENTATIVES AVAILABLE TO HEAR HIS
ANSWER.  THE REPRESENTATIVE OR REPRESENTATIVES DESIGNATED TO HEAR THE
ANSWER SHALL BE PERSONS WHO HAVE AUTHORITY EITHER TO MAKE A FINAL
DECISION ON THE PROPOSED ADVERSE ACTION OR TO RECOMMEND WHAT FINAL
DECISION SHOULD BE MADE." 

/11/  5 CFR 752.202 (F).  SECTION 752.202 (F) PROVIDES: 

"(F) NOTICE OF ADCERSE DECISION.  THE EMPLOYEE IS INTITLED TO NOTICE
OF THE AGENCY'S DECISION AT THE EARLIEST PRACTICABLE DATE.  THE AGENCY
SHALL DELIVER THE MOTICE OF DECISION TO THE EMPLOYEE AT OR BEFORE THE
TIME THE ACTION WILL BE MADE EFFECTIVE.  THE NOTICE SHALL BE IN
WRITING, BE DATED, AND INFORM THE EMPLOYEE: 

"(1) WHICH OF THE REASONS IN THE NOTICE OF PROPOSED ADVERSE ACTION
HAVE BEEN FOUND SUSTAINED AND WHICH HAVE BEEN FOUND NOT SUSTAINED; 

"(2) OF HIS RIGHT OF APPEAL TO THE APPROPRIATE OFFICE OF THE
COMMISSION; 

"(3) OF ANY RIGHT OF APPEAL TO THE ANENCY UNDER SUBPART B OF PART
771 OF THIS CHAPTER, INCLUDING THE PERSON WITH WHOM, OR THE OFFICE WITH
WHICH, SUCH AN APPEAL SHALL BE FILED; 

"(4) OF THE TIME LIMIT FOR APPEALING AS PROVIDED IN 752.204; 

"(5) OF THE RESTRICTIONS ON THE USE OF APPEAL RIGHTS AS PROVIDED IN
752.205; AND 

"(6) WHERE HE MAY OBTAIN INFORMATION ON HOW TO PURSUE AN APPEAL." 

/12/  5 CFR 771.205, 771.208.  SECTION 771.205 PROVIDES: 

"AN EMPLOYEE IS ENTITLED TO APPEAL UNDER THE AGENCY APPEALS SYSTEM
FROM THE ORIGINAL DECISION.  THE AGENCY SHALL ACCEPT AND PROCESS A
PROPERLY FILED APPEAL IN ACCORDANCE WITH ITS APPEALS SYSTEM."  SECTION
771.208 PROVIDES: 

"(A) ENTITLEMENT.  EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS
EXAMINER.  THE EMPLOYEE IS ENTITLED TO APPEAR AT THE HEARING PERSONALLY
OR THROUGH OR ACCOMPANIED BY HIS REPRESENTATIVE.  THE HEARING MAY
PRECEDE EITHER THE ORIGINAL DECISION OR THE APPELLATE DECISION, AT THE
AGENCY'S OPTION.  ONLY ONE HEARING SHALL BE HELD UNLESS THE AGENCY
DETERMINES THAT UNUSUAL CIRCUMSTANCES REQUIRE A SECOND HEARING. 

"(B) DENIAL OF HEARING.  THE AGENCY MAY DENY AN EMPLOYEE A HEARING
ON HIS APPEAL ONLY (1) WHEN A HEARING IS IMPRACTICABLE BY REASON OF
UNUSUAL LOCATION OR OTHER EXTRAORDINARY CIRCUMSTANCE, OR (2) WHEN THE
EMPLOYEE FAILED TO REQUEST A HEARING OFFERED BEFORE THE ORIGINAL
DECISION. 

"(C) NOTICE.  THE AGENCY SHALL NOTIFY AN EMPLOYEE IN WRITING BEFORE
THE ORIGINAL DECISION OR BEFORE THE APPELLATE DECISION OF (1) HIS RIGHT
TO A HEARING, OR (2) THE REASONS FOR THE DENIAL OF A HEARING." 

/13/  5 CFR 752.203.  SECTION 752.203 PROVIDES: 

"AN EMPLOYEE IS INTITLED TO APPEAL TO THE COMMISSION FROM AN ADVERSE
ACTION COVERED BY THIS SUBPART.  THE APPEAL SHALL BE IN WRITING AND
SHALL SET FORTH THE EMPLOYEE'S REASONS FOR CONTESTING THE ADVERSE
ACTION, WOTH SUCH OFFER OF PROOF AND PERTINENT DOCUMENTS AS HE IS ABLE
TO SUBMIT."  APPEALS TO BOTH THE DISCHARGING AGENCY AND THE COMMISSION
FROM AN ORIGINAL ADVERSE ACTION WILL NOT BE PROCESSED CONCURRENTLY, 5
CFR 752.205 (A), AND A DIRECT APPEAL TO THE COMMISSION FROM AN INITIAL
REMOVAL DECISION CONSTITUTES A WAIVER OF APPEAL RIGHTS WITHIN THE
EMPLOYING AGENCY.  5 CFR 752.205 (B).  HOWEVER, IF THE EMPLOYEE FIRST
APPEALS WITHIN THE EMPLOYING AGENCY, HE IS ENTITLED, IF NECESSARY, TO
AN APPEAL TO THE COMMISSION.  5 CFR 752.205 (C). 

/14/  5 CFR 771.208, 771.210 - 771.212, 772.305 (C).  SECTIONS
771.210 - 771.212 GOVERN THE CONDUCT OF HEARINGS BY THE DISCHARGING
AGENCY.  THOSE SECTIONS PROVIDE: 

"(A) THE HEARING IS NOT OPEN TO THE PUBLIC OR THE PRESS.  EXCEPT AS
PROVIDED IN PARAGRAPH (H) OF THIS SECTION, ATTENDANCE AT A HEARING IS
LIMITED TO PERSONS DETERMINED BY THE EXAMINER TO HAVE A DIRECT
CONNECTION WITH THE APPEAL. 

"(B) THE HEARING IS CONDUCTED SO AS TO BRING OUT PERTINENT FACTS,
INCLUDING THE PRODUCTION OF PERTINENT RECORDS. 

"(C) RULES OF EVIDENCE ARE NOT APPLIED STRICTLY, BUT THE EXAMINER
SHALL EXCLUDE IRRELEVANT OR UNDULY REPETITIOUS TESTIMONY. 

"(D) DECISIONS ON THE ADMISSIBLITY OF EVIDENCE OR TESTIMONY ARE MADE
BY THE EXAMINER. 

"(E) TESTIMONY IS UNDER OATH OR AFFIRMATION. 

"(F) THE EXAMINER SHALL GIVE THE PARTIES OPPORTUNITY TO CROSS
EXAMINE WITNESS WHO APPEAR AND TESTIFY. 

"(G) THE EXAMINER MAY EXCLUDE ANY PERSON FROM THE HEARING FOR
CONTUMACIOUS CONDUCT OR MISBEHAVIOR THAT OBSTRUCTS THE HEARING. 

"(H) AN AGENCY MAY PROVIDE THROUGH A NEGOTIATED AGREEMENT WITH A
LABOR ORGANIZATION HOLDING EXCLUSIVE REGNITION FOR THE ATTENDANCE AT
HEARINGS UNDER THIS SUBPART OF AN OBSERVER FROM THAT ORGANIZATION. 
WHEN ATTENDANCE IS PROVEIDED FOR, THE AGREEMENT SHALL FURTHER PROVIDE
THAT WHEN THE EMPLOYEE WHO REQUESTED THE HEARING OBJECTS TO THE
ATTENDANCE OF AN ABSERVER ON GROUNDS OF PRIVACY, THE EXAMINER SHALL
DETERMINE THE VALIDITY OF THE OBJECTION AND MAKE THE DECISION ON THE
QUESTION OF ATTENDANCE. 

        771.211 WITNESSES. 

"(A) BOTH PARTIES ARE ENTITLED TO PRODUCE WITNESSES. 

"(B) THE AGENCY SHALL MAKE ITS EMPLOYEES AVAILABLE AS WITNESSES
BEFORE AN EXAMINER WHEN REQUESTED BY THE EXAMINER AFTER CONSIDERATION
OF A REQUEST BY THE EMPLOYEE OR THE AGENCY. 

"(C) IF THE AGENCY DETERMINES TAHT IT IS NOT ADMINISTRATIVELY
PRACTICABLE TO COMPLY WITH THE REQUEST OF THE EXAMINER, IT SHALL NOTIFY
HIM IN WRITING OF THE REASONS FOR THAT DETERMINATION.  IF, IN THE
EXAMINER'S JUDGMENT, COMPLIANCE WITH HIS REQUEST IS ESSENTIAL TO A FULL
AND FAIR HEARING, HE MAY POSTPONE THE HEARING UNTIL SUCH TIME AS THE
AGENCY COMPLIES WITH HIS REQUEST. 

"(D) EMPLOYEES OF THE AGENCY ARE IN A DUTY STATUS DURING THE TIME
THEY ARE MADE AVAILABLE AS WITNESSES. 

"(E) THE AGENCY SHALL ASSURE WITNESSES FREEDOM FROM RESTRAINT,
INTERFERENCE, COERCION, DISCRIMINATION, OR REPRISAL IN PRESENTING THEIR
TESTIMONY. 

        771.212 RECORD OF HEARING. 

"(A) THE HEARING SHALL BE RECORDED AND TRANSCRIBED VERBATIM.  ALL
DOCUMENTS SUBMITTED TO AND ACCEPTED BY THE EXAMINER AT THE HEARING
SHALL BE MADE A PART OF THE RECORD OF THE HEARING.  IF THE AGENCY
SUBMITS A DOCUMENT THAT IS ACCEPTED, IT SHALL FURNISH A COPY OF THE
DOCUMENT TO THE EMPLOYEE.  IF THE EMPLOYEE SUBMITS A DOCUMENT THAT IS
ACCEPTED, HE SHALL MAKE THE DOCUMENT AVAILABLE TO THE AGENCY
REPRESENTATIVE FOR REPRODUCTION. 

"(B) THE EMPLOYEE IS ENTITLED TO BE FURNISHED A COPY OF THE HEARING
RECORD AT OR BEFORE THE TIME HE IS FURNISHED A COPY OF THE REPORT OF
THE EXAMINER." 

SERVICE COMMISSION.  IT PROVIDES: 

"(C) HEARING PROCEDURES.  (1) AN APPELLANT IS ENTITLED TO APPEAR AT
THE HEARING ON HIS APPEAL PERSONALLY OR THROUGH OR ACCOMPANIED BY HIS
REPRESENTATIVE.  THE AGENCY IS ALSO ENTITLED TO PARTICIPATE IN THE
HEARING.  BOTH PARTIES ARE ENTITLED TO PRODUCE WITNESSES.  THE
COMMISSSION IS NOT AUTHORIZED TO SUBPOENA WITNESSES. 

"(2) AN AGENCY SHALL MAKE ITS EMPLOYEES AVAILABLE AS WITNESSES AT
THE HEARING WHEN (I) REQUESTED BY THE COMMISSION AFTER CONSIDERATION OF
A REQUEST BY THE APPELLANT OR THE AGENCY ADN (II) IT IS
ADMINISTRATIVELY PRACTICABLE TO COMPLY WITH THE REQUEST OF THE
COMMISSION.  IF THE AGENCY DETERMINES THAT IT IS NOT ADMINISTRATIVELY
PRACTICABLE TO COMPLY WITH THE REQUEST OF THE COMMISSION, IT SHALL
SUBMIT TO THE COMMISSION ITS WRITTEN REASONS FOR THE DECLINATION. 
EMPLOYEES OF THE AGENCY SHALL BE IN A DUTY STATUS.  DURING THE TIME
THEY ARE MADE AVAILABLE AS WITNESSES.  EMPLOYEES OF THE AGENCY SHALL BE
FREE FROM RESTRAINT, INTERFERENCE, COERCION, DISCRIMINATION, OR
REPRISAL IN PRESENTING THEIR TESTIMONY. 

"(3) HEARINGS ARE NOT OPEN TO THE PUBLIC OR THE PRESS.  ATTENDANCE
AT HEARINGS IS LIMITED TO PERSONS DETERMINED BY THE COMMISSION TO HAVE
A DIRECT CONNECTION WITH THE APPEAL. 

"(4) A REPRESENTATIVE OF THE COMMISSION SHALL CONDUCT THE HEARING
AND SHALL AFORD THE PARTIES OPPORTUNITY TO INTRODUCE EVIDENCE
(INCLUDING TESTIMONY AND STATEMENTS BY THE APPELLANT, HIS
REPRESENTATIVE, REPRESENTATIVES OF THE AGENCY, AND WITNESSES), AND TO
CROSS-EXAMINE WITNESSES.  TESTIMONY IS UNDER OATH OR AFFIRMATION. 
RULES OF EVIDENCE ARE NOT APPLIED STRICTLY, BUT THE REPRESENTATIVE OF
THE COMMISSION SHALL EXCLUDE IRRELEVANT OR UNDULY REPETITIOUS
TESTIMONY. 

"(5) THE OFFICE OF THE COMMISSION HAVING INITIAL JURISDICTION OF THE
APPEAL SHALL DETERMINE HOW THE HEARING WILL BE REPORTED.  WHEN THE
HEARING IS REPORTED VERBATIM, THAT OFFICE SHALL MAKE THE TRANSCRIPT A
PART OF THE RECORD OF THE PROCEEDINGS AND SHALL FURNISH A COPY OF THE
TRANSCRIPT TO EACH PARTY.  WHEN THE HEARING IS NOT REPORTED VERBATIM,
THE REPRESENTATIVE OF THE COMMISSION WHO CONDUCTS THE HEARING SHALL
MAKE A SUITABLE SUMMARY OF THE PERTINENT PORTIONS OF THE TESTIMONY. 
WHEN AGREED TO IN WRITING BY THE PARTIES, THE SUMMARY CONSTITUTES THE
REPORT OF THE HEARING AND IS MADE A PART OF THE RECORD OF THE
PROCEEDINGS.  EACH PARTY IS ENTITLED TO BE FURNISHED A COPY OF THE
REPORT OF THE HEARING.  IF THE REPRESENTATIVE OF THE COMMISSION AND THE
PARTIES FAIL TO AGREE ON THE SUMMARY, THE PARTIES ARE ENTITLED TO
SUBMIT WRITTEN EXCEPTIONS TO ANY PARTS OF THE SUMMARY WHICH ARE MADE A
PART OF THE RECORD OF THE PROCEEDINGS FOR CONSIDERATION IN DECIDING THE
APPEAL." 

/15/  OEO STAFF INSTRUCTION NO. 771 - 2 (1971). 

/16/  5 U.S.C. 5596. 

/17/  ACT OF JAN. 16, 1883, C. 27, 22 STAT. 403. 

/18/  ID., 2. 

/19/  FIFTEENTH REPORT OF THE CIVIL SERVICE COMMISSION 70 (1897 -
1898).  RULE II, 8, PROVIDED: "NO REMOVAL SHALL BE MADE FROM ANY
POSITION SUBJECT TO COMPETITIVE EXAMINATION EXCEPT FOR JUST CAUSE AND
UPON WRITTEN CHARGES FILED WITH THE HEAD OF THE DEPARTMENT OR OTHER
APPOINTING OFFICER, AND OF WHICH THE ACCUSED SHALL HAVE FULL NOTICE AND
AN OPPORTUNITY TO MAKE DEFENSE." 

/20/  ACT OF AUG. 24, 1912, C. 389, 6, 37 STAT. 555. 

/21/  OUR BROTHER WHITE WOULD HOLD THAT VERDUIN HIMSELF MIGHT NOT
MAKE THE INITIAL DECISION AS TO REMOVAL ON BEHALF OF THE AGENCY,
BECAUSE HE WAS THE VICTIM OF THE ALLEGED SLANDER WHICH WAS ONE OF THE
BASES FOR APPELLEE'S REMOVAL.  BECAUSE OF OUR HOLDING WITH RESPECT TO
APPELLEE'S PROPERTY-TYPE EXPECTATIONS UNDER ROTH AND SINDERMANN, WE FO
NOT REACH THIS QUESTION IN ITS CONSTITUTIONAL DIMENSION.  BUT SINCE OUR
BROTHER WHITE SUGGESTS THAT HE REACHES THAT CONCLUSION AS A MATTER OF
STATUTORY CONSTRUCTION, ALBEIT BECAUSE OF HIS CONCLUSION.  WE, OR
COURSE, FIND NO CONSTITUIONAL OVERTONES LURKING IN THE STATUTORY ISSUE,
BECAUSE OF OUR HOLDING AS TO THE NATURE OF APPELLEE'S PROPERTY INTEREST
IN HIS EMPLOYMENT.  THE REFERENCE IN THE LLOYD-LA FOLLETTE ACT ITSELF
TO THE DISCRETION "OF THE OFFICER MAKING THE REMOVAL" SUGGESTS RATHER
STRONGLY THAT HE IS LIKEWISE THE OFFICER WHO WILL HAVE BROUGHT THE
CHARGES, AND THERE IS NO INDICATION THAT DURING THE 30 YEARS' PRACTICE
UNDER THE ACT IT HAS EVER BEEN ADMINISTRATIVELY CONSTRUED TO REQUIRE
THE INITIAL HEARING ON THE DISCHARGE TO BE BEFORE ANY OFFICIAL OTHER
THAN THE ONE MAKING THE CHARGES.  AND WHILE OUR BROTHER WHITE'S
STATEMENT OF HIS CONCLUSION SUGGESTS THAT IT MAY BE LIMITED TO FACTS
SIMILAR TO THOSE PRESENTED HERE, POST, AT 199, WE DOUBT THAT IN
PRACTICE IT COULD BE SO CONFINED.  THE DECISION OF AN EMPLOYEE'S
SUPERVISOR TO DISMISS AN EMPLOYEE "FOR SHCH CAUSE AS WILL PROMOTE THE
EFFICIENCY OF THE SERVICE" WILL ALL BUT INVARIABLY INVOLVE A SOMEWHAT
SUBJECTIVE JUDGMENT ON THE PART OF THE SUPERVISOR THAT THE EMPLOYEE'S
PERFORMANCE IS NOT "UP TO SNUFF."  EMPLOYER-EMPLOYEE DISPUTES OF THIS
SORT CAN SCARCELY AVOID INVOLVING CLASHES OF PERSONALITIES, AND WHILE A
CHARGE THAT AN EMPLOYEE HAS DEFAMED A SUPERVISOR MAY GENERATE A MAXIMUM
OF PERSONAL INVOLVEMENT ON THE PART OF THE LATTER, A STATEMENT OF MORE
TYPICAL CHARGES WILL NECESSARILY ENGENDER SOME DEGREE OF PERSONAL
INVOLVEMENT ON THE PART OF THE SUPERVISOR. 

ADDITIONAL DIFFICULTIES IN APPLYING OUR BROTHER WHITE'S STANDARD
WOULD SURELY BE FOUND IF THE OFFICIAL BRINGING THE CHARGES WERE HIMSELF
THE HEAD OF A DEPARTMENT OR AN AGENCY, FOR IN THAT EVENT NONE OF HIS
SUBORDINATES COULD BE ASSUMED TO HAVE A REASONABLE DEGREE OF DETACHED
NEUTRALITY, AND THE INITIAL HEARING WOULD PRESUMABLY HAVE TO BE
CONDUCTED BY SOMEONE WHOLLY OUTSIDE OF THE DEPARTMENT OF AGENCY.  WE DO
NOT BELIEVE THAT CONGRESS, CLEARLY INDICATING AS IT DID IN THE LLOYD
LAFOLLETT ACT ITS PREFERENCE FOR RELATIVELY SIMPLE PROCEDURES,
CONTEMPLATED OR REQUIRED THE COMPLEXITIES WHICH WOULD BE INJECTED INTO
THE ACT BY OUR BROTHER WHITE.     /22/  THE COURT'S FOOTNOTE THERE
STATED: 

"THE PURPOSE OF SUCH NOTICE AND HEARING IS TO PROVIDE THE PERSON AN
OPPORTUNITY TO CLEAR HIS NAME.  ONCE A PERSON HAS CLEARED HIS NAME AT A
HEARING, HIS EMPLOYER, OF COURSE, AMY REMAIN FREE TO DENY HIM FUTURE
EMPLOYMENT FOR OTHER REASONS." 

/23/  SEE MERRILL, PROCEDURES FOR ADVERSE ACTIONS AGAINST FEDERAL
EMPLOYEES, 59 VA. L. REV. 196, 206 (1973). 

/24/  THE FEDERAL PERSONNEL MANUAL, SUBCHAPTER S3 - 1.  A., STATES:
"BASICALLY A 'CAUSE' FOR DISCIPINARY ADVERSE ACTION IS A RECOGNIZABLE
OFFENSE AGAINST THE EMPLOYER-EMPLOYEE RELATIONSHIP.  CAUSES FOR ADVERSE
ACTION RUN THE ENTIRE GAMUT OF OFFENSES AGAINST THE EMPLOYER-EMPLOYEE
RELATIONSHIP, INCLUDING INADEQUATE PERFORMANCE OF DUTIES AND IMPROPER
CONDUCT ON OR OFF THE JOB.  . ."  SUPP. 752 - 1, ADVERSE 

/25/  SEE N. 7, SUPRA. 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE BALCKMUN JOINS, CONCURRING
IN PART AND CONCURRING IN THE RESULT IN PART. 

FOR THE REASONS STATED BY MR. JUSTICE REHNQUIST, I AGREE THAT THE
PROVISIONS OF 5 U.S.C. 7501 (A) ARE NEITHER UNCONSTITUTIONLLY VAGUE NOR
OVERBROAD.  I ALSO AGREE THAT APPELLEE'S DISCHARGE DID NOT CONTRAVENE
THE FIFTH AMENDMENT GUARANTEE OF PROCIDURAL DIE PROCESS.  BECAUSE I
REACH THAT CONCLUSION ON THE BASIS OF DIFFERENT REASONING, I STATE MY
VIEWS SEPARATELY. 

        I 

THE APPLICABILITY OF THE CONSTITUTIONAL GUARANTEE OF PROCEDURAL DUE
PROCESS DEPENDS IN THE FIRST INSTANCE ON THE PRESENCE OF A LEGITIMATE
"PROPERTY" OF "LIBERTY"  INTEREST WITHIN THE MEANING OF THE FIFTH OR
FOURTEENTH AMENDMENT.  GOVERNMENTAL DEPRIVATION OF SUCH AN INTEREST
MUST BE ACCOMPAINED BY MINIMUM PROCEDURAL SAFEGUARDS, INCLUDING SOME
FORM OF NOTICE AND A HEARING.  /1/  THE COURT'S DECISIONS IN BOARD OF
REGENTS V. ROTH, 408 U.S. 564 (1972), AND PERRY V. SINDERMANN, 408 U.S.
593 (1972), PROVIDE THE PROPER FRAMEWORK FOR ANALYSIS OF WHETHER
APPELLEE'S EMPLOYMENT CONSTITUTED A "PROPERTY" INTEREST UNDER THE FIFTH
AMENDMENT. 

IN ROTH, THE COURT STATED: 

"TO HAVE A PROPERTY INTEREST IN A BENEFIT, A PERSON CLEARLY MUST
HAVE MORE THAN AN ABSTRACT NEED OR DESIRE FOR IT. HE MUST HAVE MORE
THAN A UNILATERAL EXPECTATION OF IT.  HE MUST, INSTEAD, HAVE A
LEGITIMATE CLAIM OF ENTITLEMENT TO IT.  IT IS A PURPOSE OF THE ANCIENT
INSTITUTION OF PROPERTY TO PROTECT THOSE CLAIMS UPON WHICH PEOPLE RELY
IN THEIR DAILY LIVES, RELIANCE THAT MUST NOT BE ARBITRATILY
UNDERMINED.  IT IS A PURPOSE OF THE CONSTITUTIONAL RIGHT TO A HEARING
TO PROVIDE AN OPPORTUNITY FOR A PERSON TO VINDICATE THOSE CLAIMS. 

     "PROPERTY INTEREST, OF COURSE, ARE NOT CREATED BY THE

  CONSTITUTION.  RATHER, THEY ARE CREATED AND THEIR DIMENSIONS ARE

  DEFINED BY EXISTING RULES OR UNDERSTANDINGS THAT STEM FROM AN

INDEPENDENT SOURCE SUCH AS STATE LAW--RULES OR UNDERSTANDINGS

  THAT SECURE CERTAIN BENEFITS AND THAT SUPPORT CLAIMS OF

  ENTITLEMENT TO THOSE BENEFITS."  408 U.S., AT 577. 

THE COURT RECOGNIZED THAT THE "WOODEN DISTINCTION"  BETWEEN "RIGHTS"
AND "PRIVILEGES" WAS NOT DETERMINATIVE OF THE APPLICABILITY OF
PROCEDURAL DUE PROCESS AND THAT A PROPERTY INTEREST MAY BE CREATED BY
STATUTE AS WELL AS BY CONTRACT.  ID., AT 571.  IN PARTICULAR, THE COURT
STATED THAT A PERSON MAY HAVE A PROTECTED PROPERTY INTEREST IN PUBLIC
EMPLOYMENT IF CONTRACTUAL OR STATUTORY PROVISIONS GUARANTEE CONTINUED
EMPLOYMENT ABSENT "SUFFICIENT CAUSE" FOR DISCHARGE.  ID., AT 576 -
578. 

IN SINDERMANN, THE COURT AGAIN EMPHASIZED THAT A PERSON MAY HAVE A
PROTECTED PROPERTY INTEREST IN CONTINUED PUBLIC EMPLOYMENT.  THERE, A
STATE COLLEGE TEACHER ALLEGED THAT THE COLLEGE HAD ESTABLISHED A DE
FACTO SYSTEM OF TENURE AND THAT HE HAD OBTAINED TENTURE UNDER THAT
SYSTEM.  THE COURT STATED THAT PROOF OF THESE ALLEGATIONS WOULD
ESTABLISH THE TEACHER'S LEGITIMATE CLAIM OF ENTITLEMENT TO CONTINUED
EMPLOYMENT ABSENT "SUFFICIENT CAUSE" FOR DISCHARGE.  IN THESE
CIRCUMSTANCES, THE TEACHER WOULD HAVE A PROPERTY INTEREST SAFEGUARDED
BY DIE PROCESS, AND DEPRIVATION OF THAT INTEREST WOULD HAVE TO BE
ACCOMPAINIED BY SOME FORM OF NOTICE AND A HEARING. 

APPLICATION OF THESE PRECEDENTS TO THE INSTANT CASE MAKES PLAIN THAT
APPELLEE IS ENTITLED TO INVOKE THE CONSTITUTIONAL GUARANTEE OF
PROCEDURAL DUE PROCESS.  APPELLEE WAS A NONPROBATIONARY FEDRAL
EMPLOYEE, AND AS SUCH HE COULD BE DISCHARGED ONLY "FOR CAUSE."  5
U.S.C. 7501.  THE FEDERAL STATUTE GUARANTEEING APPELLEE CONTINUED
EMPLOYMENT ABSENT "CAUSE" FOR DISCHARGE CONFERRED ON HIM A LEGITIMATE
CLAIM OF ENTITLEMENT WHICH CONSTITUTED A "PROPERTY" INTEREST UNDER THE
FIFTH AMENDMENT.  THUS TERMINATION OF HIS EMPLOYMENT REQUIRES NOTICE
AND A HEARING. 

THE PLURALITY OPINION EVIDENTLY REASONS THAT THE NATURE OF
APPELLEE'S INTEREST IN CONTINUED FEDERAL EMPLOYMENT IS NECESSARILY
DEFINED AND LIMITED BY THE STATUTORY PROCEDURES FOR DISCHARGE AND THAT
THE CONSTITUTIONAL GUARANTEE OF PROCEDURAL DUE PROCESS ACCORDS TO
APPELLEE NO PROCEDURAL PROTECTIONS AGAINST ARBITRARY OR ERRONEOUS
DISCHARGE OTHER THAN THOSE EXPRESSLY PROVIDED IN THE STATUTE.  THE
PLURALITY WOULD THUS CONCLUDE THAT THE STATUTE GOVERNING FEDERAL
EMPLOYMENT DETERMINES NOT ONLY THE NATURE OF APPELLEE'S PROPERTY
INTEREST, BUT ALSO THE EXTENT OF THE PROCEDURAL PROTECTIONS TO WHICH HE
MAY LAY CLAIM.  IT SEEMS TO ME THAT THIS APPROACH IS INCOMPATIBLE WITH
THE PRONCIPLES LAID DOWN IN ROTH AND SINDERMANN.  INDEED, IT WOULD LEAD
DIRECTLY TO THE CONCLUSION THAT WHATEVER THE NATURE OF AN INDIVIDUAL'S
STATUTORILY CREATED PROPERTY INTEREST, DEPRIVATION OF THAT INTEREST
COULD BE ACCOMPLISHED WITHOUT NOTICE OR A HEARING AT ANY TIME.  THIS
VIEW MISCONCEIVES THE ORIGIN OF THE RIGHT TO PROCEDURAL DUE PROCESS. 
THAT RIGHT IS CONFERRED NOT BY LEGISLATIVE GRACE, BUT BY CONSTITUTIONAL
GUARANTEE.  WHILE THE LEGISLATURE MAY ELECT NOT TO CONFER A PROPERTY
INTEREST IN FEDERAL EMPLOYMENT, /2/  IT MAY NOT CONSTITUTIONALLY
AUTHORIZE THE DEPROVATION OF SUCH AN INTEREST, ONCE CONFERRED, WITHOUT
APPROPRIATE PROCEDURAL SAFEGUARDS.  AS OUR CASES HAVE CONSISTENTLY
RECOGNIZED, THE ADEQUACY OF STATUTORY PROCEDURES FOR DEPRIVATION OF A
STATUTORILY CREATED PROPERTY INTEREST MUST BE ANALYZED IN
CONSTITUTIONAL TERMS.  GOLDBERG V. KELLY, 397 U.S. 254 (1970); /3/
BELL V. BURSON, 402 U.S. 535 (1971); BOARD OF REGENTS V. ROTH, SUPRA;
PERY V. SINDERMANN, SUPRA.

        II 

HAVING DETERMINED THAT THE CONSTITUTIONAL GUARANTEE OF PROCEDURAL
DUE PROCESS APPLIES TO APPELLEE'S DISCHARGE FROM PUBLIC EMPLOYMENT, THE
QUESTION ARISES WHETHER AN EVIDENTIARY HEARING, INCLUDING THE RIGHT TO
PRESENT FAVORABLE WITHNESSES AND TO CONFRONT AND EXAMINE ADVERSE
WITNESSES, MUST BE ACCORDED BEFORE REMOVAL.  THE RESONLUTION OF THIS
ISSUE DEPENDS ON A BALANCING PROCESS IN WHICH THE GOVERNMENT'S INTEREST
IN EXPEDITIOUS REMOVAL OF AN UNSATISFACTORY EMPLOYEE IS WEIGHED AGAINST
THE INTEREST OF THE AFFECTED EMPLOYEE IN CONTINUED PUBLIC EMPLOYMENT. 
GOLDBERG V. KELLY, SUPRA, AT 263 - 266.  AS THE COURT STATED IN
CAFETERIA & RESTAURANT WORKERS V. MCELROY, 367 U.S. 886, 895 (1961),
"CONSIDERATION OF WHAT PROCEDURES DUE PROCESS MAY REQUIRE UNDER ANY
GIVEN SET OF CIRCUMSTANCES MUST BEGIN WITH A DETERMINATION OF THE
PRECISE NATURE OF THE GOVERNMENT FUNCTION INVOLVED AS WELL AS OF THE
PRIVATE INTEREST THAT HAS BEEN AFFECTED BY GOVERNMENTAL ACTION." 

IN THE PRESENT CASE, THE GOVERNMENT'S INTEREST, AND HENCE THE
PUBLIC'S INTEREST, IS THE MAINTENANCE OF EMPLOYEE EFFICIENCY AND
DISCIPLINE.  SUCH FACTORS ARE ESSENTIAL IF THE GOVERNMENT IS TO PERFORM
ITS RESPONSIBILITIES EFFECTIVELY AND ECONOMICALLY.  TO THIS END, THE
GOVERNMENT, AS AN EMPLOYER, MUST HAVE WIDE DISCRETION AND CONTROL OVER
THE MANAGEMENT OF ITS PERSONNEL AND INTERNAL AFFAIRS.  THIS INCLUDES
THE PREROGATIVE TO REMOVE EMPLOYEES WHOSE CONDUCT HINDERS EFFICIENT
OPERATION AND TO DO SO WITH DISPATCH.  PROLONGED RETENTION OF A
DISRUPTIVE OR OTHERWISE UNSATISFACTORY EMPLOYEE CAN ADVERSELY AFFECT
DISCIPLINE AND MORALE IN THE WORK PLACE, FOSTER DISHARMONY, AND
ULTIMATELY IMPAIR THE EFFICIENCY OF AN OFFICE OR AGENCY.  MOREOVER, A
REQUIREMENT OF A PRIOR EVIDENTIARY HEARING WOULD IMPOSE ADDITIONAL
ADMINISTRATIVE COSTS, CREATE DELAY, AND DETER WARRANTED DISCHARGES. 
THUS, THE GOVERNMENT'S INTEREST IN BEING ABLE TO ACT EXPEDITITOUSLY TO
REMOVE AN UNSATISFACTORY EMPLOYEE IS SUBSTANTIAL.  /4/ 

APPELLEE'S CONUTERVAILING INTEREST IS THE CONTINUATION OF HIS PUBLIC
EMPLOYMENT PENDING AN EVIDENTIARY HEARING.  SINCE APPELLEE WOULD BE
REINSTATED AND AWARDED BACKPAY IF HE PREVAILS ON THE MERITS OF HIS
CLAIM, APPELLEE'S ACTUAL INJURY WOULD CONSIST OF A TEMPORARY
INTERRUPTION OF HIS INCOME DURING THE INTERIM.  TO BE SURE, EVEN A
TEMPORARY INTERRUPTION OF INCOME COULD CONSTITUTE A SERIOUS LOSS IN
MANY INSTANCES.  BUT THE POSSIBLE DEPRIVATION IS CONSIDERABLY LESS
SEVERE THAN THAT INVOLVED IN GOLDBERG, FOR EXAMPLE, WHERE TERMINATION
OF WELFARE BENEFITS TO THE RECIPIENT WOULD HAVE OCCURRED IN THE FACE OF
"BRUTAL NEED."  397 U.S., AT 261.  INDEED, AS THE COURT STATED IN THAT
CASE, "THE CRUCIAL FACTOR IN THIS CONTEXT--A FACTOR NOT PRESENT IN THE
CASE OF . . . THE DISCHARGED GOVERNMENT EMPLOYEE . . .--IS THAT
TERMINATION OF AID PENDING RESOLUTION OF A CONTROVERSY OVER ELIGIBILITY
MAY DEPRIVE AN ELIGIBLE RECIPIENT OF THE VERY MEANS BY WHICH TO LIVE
WHILE HE WAITS."  ID., AT 264.  BY CONTRACT, A PUBLIC EMPLOYEE MAY WELL
HAVE INDEPENDENT RESOURCES TO OVERCOME ANY TEMPORARY HARDSHIP, AND HE
MAY BE ABLE TO SECURE A JOB IN THE PRIVATE SECTOR.  ALTERNATIVELY, HE
WILL BE ELIGIBLE FOR WELFARE BENEFITS. 

APPELLEE ALSO ARGUES THAT THE ABSENCE OF A PRIOR EVIDENTIARY HEARING
INCREASES THE POSSIBILITY OF WRONGFUL REMOVAL AND THAT DELAY IN
CONDUCTING A POST-TERMINATION EVIDENTIARY HEARING FURTHER AGGRAVATES
HIS LOSS.  THE PRESENT STATUTE AND REGULATIONS, HOWEVER, ALREADY
RESPOND TO THESE CONCERNS.  THE AFFECTED EMPLOYEE IS PROVIDED WITH 30
DAYS' ADVANCE WRITTEN NOTICE OF THE REASONS FOR HIS PROPOSED DISCHARGE
AND THE MATERIALS ON WHICH THE NOTICE IS BASED.  HE IS ACCORDED THE
RIGHT TO RESPOND TO THE CHARGES BOTH ORALLY AND IN WRITTING, INCLUDING
THE SUBMISSION OF AFFIDAVITS.  UPON REQUEST, HE IS ENTITLED TO AN
OPPORTUNITY TO APPEAR PERSONALLY BEFORE THE OFFICIAL HAVING THE
AUTHORITY TO MAKE OR RECOMMEND THE FINAL DECISION.  ALTHOUGH AN
EVIDENTIARY HEARING IS NOT HELD, THE EMPLOYEE MAY MAKE ANY
REPRESENTATIONS HE BELIEVES RELEVANT TO HIS CASE.  AFTER REMOVAL, THE
EMPLOYEE RECIEVES A FULL EVIDENTIARY HEARING, AND IS AWARDED BACKPAY IF
REINSTATED.  SEE 5 771.208 AND 772.305; 5 U.S.C. 5596.  THESE
PROCEDURES MINIMIZE THE RISK OR ERROR IN THE INITIAL REMOVAL DECISION
AND PROVIDE FOR COMPENSATION FOR THE AFFECTED EMPLYEE SHOULD THAT
DECISION EVENTUALLY PROVE WRONGFUL.  /5/ 

ON BALANCE, I WOULD CONCLUDE THAT A PRIOR EVIDENTIARY HEARING IS NOT
REQUIRED AND THAT THE PRESENT STATUTE AND REGULATIONS COMPORT WITH DUE
PROCESS BY PROVIDING A REASONABLE ACCOMMODATION OF THE COMPETING
INTERESTS.  /6/ 

/1/  AS THE COURT STATED IN BODDIE V. CONNICTICUT, 401 U.S. 371, 378
(1971), "THE FORMALITY AND PROCEDURAL REQUISITES FOR (A DUE PROCESS)
HEARING CAN VARY, DEPENDING UPON THE IMPORTANCE OF THE INTEREST
INVOLVED AND THE NATURE OF THE SUBSEQUENT PROCEEDINGS."  IN THIS CASE,
WE ARE CONCERNED WITH AN ADMINISTRATIVE HEARING IN THE CONTEXT OF
APPELLEE'S DISCHARGE FROM PUBLIC EMPLOYMENT. 

/2/  NO PROPERTY INTEREST WOULD BE CONFERRED, FOR EXAMPLE, WHERE THE
APPLICABLE STATUTORY OR CONTRACTUAL TERMS, EITHER EXPRESSLY OR BY
IMPLICATION, DID NOT PROVIDE FOR CONTINUED EMPLOYMENT ABSENT "CAUSE". 
SEE BOARD OF REGENTS V. ROTH, 408 U.S. 564, 578 (1972). 

/3/  IN GOLDBERG, FOR EXAMPLE, THE STATUTES AND REGULATIONS DEFINED
BOTH ELIGIBILITY FOR WELFARE BENEFITS AND THE PROCEDURES FOR
TERMINATION OF THOSE BENEFITS.  THE COURT HELD THAT SUCH BENEFITS
CONSTITUTED A STATUTORY EMTITLEMENT FOR PERSONS QUALIFIED TO RECIEVE
THEM AND THAT THE CONSTITUTIONAL GUARANTEE OF PROCEDURAL DUE PROCESS
APPLIED TO TERMINATION OF BENEFITS.  397 U.S., AT 261 - 263. 

/4/  MY BROTHER MARSHALL REJECTS THE GOVERNMENT'S INTEREST IN
EFFICIENCY AS INSIGNIFICANT, CITING GOLDBERG V. KELLY, 397 U.S. 254,
266 (1970), AND FUENTES V. SHEVIN, 407 U.S. 67, 90 - 91, N. 22 (1972). 
HE ALSO NOTES THAT NINE FEDERAL AGENCIES PRESENTLY ACCORD PRIOR
EVIDENTIARY HEARINGS.  POST, AT 223, 224. 

NEITHER GOLDBERG NOR FUENTES INVOLVED THE GOVERNMENT'S SUBSTANTIAL
INTEREST IN MAINTAINING THE EFFICIENCY AND DISCIPLINE OF ITS OWN
EMPLOYEES.  MOREOVER, THE FACT THAT SOME FEDERAL AGENCIES MAY HAVE
DECIDED TO HOLD PRIOR EVIDENTIARY HEARINGS CANNOT MEAN THAT SUCH A
PROCEDURE IS CONSTITUTIONALLY MANDATED.  THE FEDERAL GOVERNMENT'S
GENERAL PRACTICE TO THE CONTRARY ARGUES THAT EFFICIENCY IS IN FACT
THOUGHT TO BE ADVERSELY AFFECTED BY PRIOR EVIDENTIARY HEARINGS. 

NOR DO I AGREE WITH MY BROTHER WHITE'S ARGUMENT THAT SUSPENSION WITH
PAY WOULD OBVIATE ANY PROBLEM POSED BY PROLONGED RETENTION OF A
DISRUPTIVE OR UNSATISFACTORY EMPLOYEE.  ASIDE FROM THE ADDITIONAL
FINANCIAL BURDEN WHICH WOULD BE IMPOSED ON THE GOVERNMENT, THIS
PROCEDURE WOULD UNDOUBTEDLY INHIBIT WARRANTED DISCHARGES AND WEAKEN
SIGNIFICANTLY THE DETERRENT EFFECT OF IMMEDIATE REMOVAL.  IN ADDITION,
IT WOULD CREATE A STRONG INCENTIVE FOR THE SUSPENDED EMPLOYEE TO
ATTEMPT TO DELAY FINAL RESOLUTION OF THE ISSUES SURROUNDING HIS
DISCHARGE. 

/5/  MY BROTHER WHITE ARGUES THAT AFFIRMANCE IS REQUIRED BECAUSE THE
SUPERVISORY OFFICIAL WHO WOULD HAVE CONDUCTED THE PREREMOVAL HEARING
WAS THE "OBJECT OF SLANDER THAT WAS THE BASIS FOR THE EMPLOYEE'S
PROPOSED DISCHARGE."  POST, AT 199.  HE WOULD CONCLUDE THAT THIS
VIOLATED THE STATUTORY REQUIREMENT OF AN "IMPARTIAL DECISIONMAKER."  I
FIND NO SUCH REQUIREMENT ANYWHERE IN THE STATUTE OR THE REGULATIONS. 
NOR DO I BELIEVE THAT DUE PROCESS SO MANDATES AT THE PREREMOVAL STAGE. 
IN MY VIEW, THE RELEVANT FACT IS THAT AN IMPARTIAL DECISIONMAKER IS
PROVIDED AT THE POST-REMOVAL HEARING WHERE THE EMPLOYEE'S CLAIMS ARE
FINALLY RESOLVED.     THERE ARE ALSO SIGNIFICANT PRACTICAL
CONSIDERATIONS THAT ARGUE AGAINST SUCH A REQUIREMENT.  IN MOST CASES,
THE EMPLOYEE'S SUPERVISOR IS THE OFFICIAL BEST INFORMED ABOUT THE
"CAUSE" FOR TERMINATION.  IF DISQUALIFICATION IS REQUIRED ON THE GROUND
THAT THE RESPONSIBLE SUPERVISOR COULD NOT BE WHOLLY IMPARTIAL, THE
REMOVAL PROCEDURE WOULD BECOME INCREASINGLY COMPLEX.  IN EFFECT, A
"MINI-TRIAL" WOULD BE NECESSARY TO EDUCATE THE IMPARTIAL DECISIONMAKER
AS TO THE BASIS FOR TERMINATION. 

/6/  APPELLEE ALSO ARGUES THAT THE FAILURE TO PROVIDE A PRIOR
EVIDENTIARY HEARING DEPRIVED HIM OF HIS "LIBERTY" INTEREST IN VIOLATION
OF THE FIFTH AMENDMENT.  FOR THE REASONS STATED ABOVE, I FIND THAT THE
PRESENT STATUTE COMPORTS WITH DUE PROCESS EVEN WITH RESPECT TO
APPELLEE'S LIBERTY INTEREST. 

MR. JUSTICE WHITE, CONCURRING IN PART AND DISSENTING IN PART. 

THE LLOYD-LA FOLLETTE ACT, 5 U.S.C. 7501 (A), PROVIDES THAT "(AN
INDIVIDUAL IN THE COMPETITIVE SERVICE MAY BE REMOVED OR SUSPENDED
WITHOUT PAY ONLY FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE
SERVICE."  /1/  THE REGULATIONS OF THE CIVIL SERVICE COMMISSION AND THE
OFFICE OF ECONOMIC OPPORTUNITY (OEO), AT WHICH APPELLEE WAS EMPLOYED,
GIVE CONTENT TO "CAUSE" BY SPECIFYING GROUNDS FOR REMOVAL WHICH INCLUDE
"ANY ACTION . . . WHICH MIGHT RESULT IN . . ."(AFFECTING ADVERSELY AND
CONFIDENCE OF THE PUBLIC IN THE INTEGRITY OF (OEO AND) THE GOVERNMENT"
AND ANY "CRIMINAL, INFAMOUS, DISHONEST, IMMORAL, OR NOTOUIOUSLY
DISGRACEFUL CONDUCE, OR OTHER CONDUCT PREJUDICIAL TO THE SERVICE." 
/2/ 

ASIDE FROM SPECIFYING THE STANDARDS FOR DISCHARGES, CONGRESS HAS
ALSO ESTABLISHED THE PROCEDURAL FRAMEWORK IN WHICH THE DISCHARGE
DETERMINATIONS ARE TO BE MADE.  THE EMPLOYEE IS TO RECEIVE 30 DAYS'
ADVANCE WRITTEN NOTICE OF THE ACTION SOUGHT AND OF ANY CHARGES
PREFERRED AGAINST HIM, A COPY OF THE CHARGES, AND A REASONABLE TIME FOR
FILING A WRITTEN ANSWER TO THE CHARGES.  BEFORE BEING TERMINATED HE MAY
ALSO MAKE A PERSONAL APPEARANCE BEFORE AN AGENCY OFFICIAL, AND
IMPLEMENTING CIVIL SERVICE COMMISSION REGULATIONS PROVIDE THAT "(THE
RIGHT TO ANSWER PERSONALLY INCLUDES THE RIGHT TO ANSWER ORALLY IN
PERSON BY BEING GIVEN A REASONABLE OPPORTUNITY TO MAKE ANY
REPRESENTATIONS WHICH THE EMPLOYEE BELIEVES MIGHT SWAY THE FINAL
DECISION ON HIS CASE, BUT DOES NOT INCLUDE THE RIGHT TO A TRIAL OR A
FORMAL HEARING WITH EXAMINATION OF WITNESSES."  THE REGULATIONS FURTHER
PROVIDE THAT THE "REPRESENTATIVE OR REPRESENTATIVES DESIGNATED TO HEAR
THE ANSWER SHALL BE PERSONS WHO HAVE AUTHORITY EITHER TO MAKE A FINAL
DECISION ON THE PROPOSED ADVERSE ACTION OR TO RECOMMEND WHAT FINAL
DECISION SHOULD BE MADE."  THE EMPLOYEE IS ENTITLED TO NOTICE OF THE
AGENCY'S DECISION IN WRITING, AND THE NOTICE MUST INFORM THE EMPLOYEE
"(WHICH OF THE REASONS IN THE NOTICE OF PROPOSED ADVERSE ACTION HAVE
BEEN FOUND SUSTAINED AND WHICH HAVE BEEN FOUND NOT SUSTAINED."  /3/
THE EMPLOYEE MAY APPEAL FROM AN ADVERSE DECISION AND IS ENTITLED TO AN
EVIDENTIARY TRIAL-TYPE HEARING AT THIS STAGE.  /4/  THIS LATER HEARING
AFFORDS THE EMPLOYEE CERTAIN RIGHTS NOT AVAILABLE WITHIN OEO AT THE
PRETERMINATION STAGE, PARTICULARLY THE TAKING OF TESTIMONY UNDER OATH
AND THE CROSS-EXAMINATION OF WITNESSES. 

APPELLEE KENNEDY WAS A NONPROBATIONARY FEDERAL EMPLOYEE IN THE
COMPETITIVE CIVIL SERVICE AND HELD THE POSITION OF FIELD REPRESENTATIVE
IN THE CHICAGO REGIONAL OFFICE OF OEO.  AS SUCH, HE WAS ENTITLED TO THE
PROTECTION OF THE STATUTES AND REGULATIONS OUTLINED ABOVE.  ON FEBRUARY
18, 1972, KENNEDY RECEIVED A "NOTIFICATION OF PROPOSED ADVERSE ACTION"
FROM THE REGIONAL DIRECTOR OR OEO, WENDELL VERDUIN.  THE NOTICE
CHARGED, AMONG OTHER THINGS, THAT KENNEDY HAD MADE SLANDEROUS
STATEMENTS ABOUT VERDUIN AND ANOTHER COWORKER CHARGING THEM WITH
BRIBING OR ATTEMPTING TO BRIBE A POTENTIAL OEO GRANTEE AND HAD THEREBY
CAUSED DISHARMONY IN HIS OFFICE BY PREVENTING ITS SMOOTH FUNCTIONING. 
VERDUIN THEN RULED ON MARCH 20, 1972, AFTER KENNEDY HAD FILED A WRITTEN
ANSWER OBJECTING TO THE LACK OF CERTAIN PROCEDURES FURNISHED AT THIS
PRETERMINATION HEARING, BUT HAD DECLINED TO APPEAR PERSONALLY, THAT
KENNEDY BE REMOVED FROM HIS JOB WITH OEO, EFFECTIVE MARCH 27, 1972. 
/5/ 

KENNEDY THEN APPELAED DIRECTLY TO THE CIVIL SERVICE COMMISSION AND
ALSO INSTITUTED THE PRESENT ACTION.  THE FIRST COUNT OF APPELLEE'S
COMPLAINT ALLEGED THAT THE DISCHARGE PROCEDURE OF THE LLOYD-LA FOLLETTE
ACT, AND THE ATTENDANT CIVIL SERVICE COMMISSION REGULATIONS, DEPRIVED
HIM OF DUE PROCESS BY FAILING TO PROVIDE FOR A FULL HEARING PRIOR TO
TERMINATION.  THE SECOND COUNT ALLEGED THAT APPELLEE WAS DISCHARGED
BECAUSE OF CERTAIN CONVERSATIONS, IN VIOLATION OF HIS RIGHTS UNDER THE
FIRST AMENDMENT.  THE SINGLE JUDGE WHO REVIEWED THE COMPLAINT CONVENED
A THREE-JUDGE COURT TO HEAR THE FIRST COUNT, AND DISMISSED THE SECOND,
WITHOUT PREJUDICE TO REFILING AFTER THE CIVIL SERVICE COMMISSION RULED
ON HIS APPEAL.  IT WAS THE COURT'S VIEW THAT IT SHOULD NOT ACT UNTIL
THE AGENCY HAD THE OPPORTUNITY TO REVIEW THE MERITS OF APPELLEE'S FIRST
AMENDMENT CLAIM. 

AFTER THE CONVENING OF THE THREE-JUDGE COURT, APPELLEE AMENDED HIS
COMPLAINT, THEN LIMITED TO THE DUE PROCESS CLAIM, TO INCLUDE A
CHALLENGE TO THE LLOYD-LA FOLLETTE ACT ON THE GROUNDS THAT IT WAS VAGUE
AND OVERBROAD AND VIOLATED THE FIRST AMENDMENT. 

THE THREE-JUDGE DISTRICT COURT, CONVENED PURSUANT TO 28 U.S.C. 2282
AND 2284, GRANTED SUMMARY JUDGMENT FOR APPELLEE.  349 F. SUPP. 863.  IT
HELD THAT THE DISCHARGE PROCEDURES VIOLATED DUE PROCESS BECAUSE "(THERE
WAS NO PROVISION . . . FOR THE DECISION ON REMOVAL OR SUSPENSION TO BE
MADE BY AN IMPARTIAL AGENCY OFFICIAL, OR FOR KENNEDY (BY HIS OWN MEANS)
TO PRESENT WITNESSES; OR FOR HIS RIGHT TO CONFROMT ADVERSE WITNESSES." 
ID., AT 865.  THE COURT ALSO HELD THAT 7501 WAS UNCONSTITUTIONAL ON
VAGUENESS AND OVERBREADTH GROUNDS.  THE GOVERNMENT WAS ORDERED TO
REINSTATE KENNEDY TO HIS FORMER POSITION WITH BACKPAY AND TO CONDUCT
ANY FUTURE REMOBAL PROCEEDINGS WITH A HEARING CONSISTENT WITH ITS
OPINION.  APPELLANTS WERE ALSO ENJOINED FROM FURTHER ENFORCEMENT OF THE
LLOYD/LA FOLLETTE ACT, AND IMPLEMENTING REGULATIONS, AS "CONSTRUED TO
REGULATE THE SPEECH OF COMPETITIVE SERVICE EMPLOYEES."  349 F. SUPP.,
AT 866. 

        I 

IN MY VIEW, THREE ISSUES MUST BE ADDRESSED IN THIS CASE.  FIRST,
DOES THE DUE PROCESS CLAUSE REQUIRE THAT THERE BY A FULL TRIAL-TYPE
HEARING AT SOME TIME WHEN A FEDERAL GOVERNMENT EMPLOYEE IN THE
COMPETITIVE SERVICE IS TERMINATED?  SECONDLY, IF SUCH BE THE CASE, MUST
THIS HEARING BE HELD PRIOR TO THE DISCHARGE OF THE EMPLOYEE, AND, IF
SO, WAS THE PROCESS AFFORDED IN THIS CASE ADEQUATE?  THIRD, AND AS AN
ENTIRELY SEPARATE MATTER, ARE THE LLOYD-LA FOLLETTE ACT AND ITS
ATTENDANT REGULATIONS VOID FOR BAGUENESS OR OVERBREADTH?  I JOIN THE
COURT AS TO THE THIRD ISSUE. 

        II 

I DIFFER BASICALLY WITH THE PLURALITY'S VIEW THAT "WHERE THE GRANT
OF A SUBSTANTIVE RIGHT IS INEXTRICABLY INTERTWINED WITH THE LIMITATIONS
ON THE PROCEDURES WHICH ARE TO BE EMPLOYED IN DETERMINING THAT RIGHT, A
LITIGANT IN THE POSITION OF APPELLEE MUST TAKE THE BITTER WITH THE
SWEET SWEET," AND THAT "THE PROPERTY INTEREST WHICH APPELLEE HAD IN HIS
EMPLOYMENT WAS ITSELF CONDITIONED BY THE PROCEDURAL LIMITATIONS WHICH
HAD ACCOMPANIED THE GRANT OF THAT INTEREST."  ANTE, AT 153 - 154, 155. 
THE RATIONALE OF THIS POSITION QUICKLY LEADS TO THE CONCLUSION THAT
EVEN THOUGH THE STATUTE REQUIRES CAUSE FOR DISCHARGE, THE REQUISITES OF
DUE PROCESS COULD EQUALLY HAVE BEEN SATISFIED HAD THE LAW DISPENSED
WITH ANY HEARING AT ALL, WHETHER PRETERMINATION OR POST-TERMINATION. 

THE PAST CASES OF THIS COURT UNIFORMLY INDICATE THAT SOME KIND OF
HEARING IS REQUIRED AT SOME TIME BEFORE A PERSON IS FINALLY DEPRIVED OF
HIS PROPERTY INTERESTS.  /6/  THE PRINCIPLES OF DUE PROCESS "COME TO US
FROM THE LAW OF ENGLAND . . . AND THEIR REQUIREMENT WAS THERE DESIGNED
TO SECURE THE SUBJECT AGAINST THE ARBITRARY ACTION OF THE CROWN AND
PLACE HIM UNDER THE PROTECTION OF THE LAW."  DENT V. WEST VIRGINIA, 129
U.S. 114, 123 (1889).  THE "RIGHT TO BE HEARD BEFORE BEING CONDEMNED TO
SUFFER GRIEVOUS LOSS OF ANY KIND, EVEN THOUGH IT MAY NOT INVOLVE THE
STIGNA AND HARDSHIPS OF A CRIMINAL CONVICTION, IS A PRINCIPLE BASIC TO
OUR SOCIETY."  ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 123, 168
(1951) (FRANKFURTER, J., CONCURRING). 

THIS BASIC PRINCIPLE HAS UNWAVERINGLY BEEN APPLIED WHEN PRIVATE
PROPERTY HAS BEEN TAKEN BY THE STATE.  A FUNDAMENTAL REQUIREMENT OF DUE
PROCESS IS "THE OPPORTUNITY TO BE HEARD."  GRANNIS V. ORDEAN, 234 U.S.
385, 394 (1914).  "IT IS AN OPPORTUNITY WHICH MUST BE GRANTED AT A
MEANINGFUL TIME AND IN A MEANINGFUL MANNER."  ARMSTRONG V. MANZO, 380
U.S. 545, 552 (1965).  WHERE THE COURT HAS REJECTED THE NEED FOR A
HEARING PRIOR TO THE INITIAL "TAKING," A PRINCIPAL RATIONALE HAS BEEN
THAT A HEARING WOULD BE PROVIDED BEFORE THE TAKING BECAME FINAL.  SEE
NORTH AMERICAN COLD STORAGE CO. V. CHICAGO, 211 U.S. 306 (1908)
(SEIZURE OF FOOD UNFIT FOR CONSUMPTION); CENTRAL TRUST CO. V. GARVAN,
254 U.S. 554 (1921) (SEIZURE OF PROPERTY UNDER TRADING WITH THE ENEMY
ACT); CORN EXCHANGE BANK V. COLER, 280 U.S. 218 (1930) (SEIZURE OF
ASSETS OF AN ABSCONDING HUSBAND); PHILLIPS V. COMMISSIONER, 283 U.S.
589 (1931) (COLLECTION OF A TAX); BOWLES V. WILLINGHAM, 321 U.S. 503
(1944) (SETTING OF PRICE REGULATIONS); FAHEY V. MALLONEE, 332 U.S. 245
(1947) (APPOINTMENT OF CONSERVATOR OF ASSETS OF SAVINGS AND LOAN
ASSOCAITION); EWING V. MYTINGER & CASSELBERRY, 339 U.S. 594 (1950)
(SEIZURE OF MISBRANDED ARTICLES IN COMMERCE).  WHILE THESE CASES
INDICATE THAT THE PARTICULAR INTERESTS INVOLVED MIGHT NOT HAVE DEMANDED
A HEARING IMMEDIATELY, THEY ALSO REAFFIRM THE PRINCIPLE THAT PROPERTY
MAY NOT BE TAKEN WITHOUT A HEARING AT SOME TIME. 

THIS PRINCIPLE HAS ALSO BEEN APPLIED IN SITUATIONS WHERE THE STATE
HAS LICENSED CERTAIN ACTIVITIES.  WHERE THE GRANT OR DENIAL OF A
LICENSE HAS BEEN INVOLVED, AND THE "RIGHT" TO ENGAGE IN BUSINESS HAS
BEEN LEGITIMATELY LIMITED BY THE INTEREST OF THE STATE IN PROTECTING
ITS CITIZENS FROM INEXPERT OF UNFIT PERFORMANCE, THE DECISION OF THE
STATE TO GRANT OR DENY A LICENSE HAS BEEN SUBJECT TO A HEARING
REQUIREMENT.  SEE, E.G., DENT V. WEST VIRGINIA, SUPRA (LICENSING OF
PHYSICIANS); GOLDSMITH V. UNITED STATES BOARD OF TAX APPEALS, 270 U.S.
117 (1926) (LICENSING OF ACCOUNTANT); WILLNER V. COMMITTEE ON CHARACTER
AND FITNESS, 373 U.S. 96 (1963) (ADMISSION TO THE BAR).  THE COURT HAS
PUT PARTICULAR STRESS ON THE FACT THAT THE ABSENCE OF A HEARING WOULD
ALLOW THE STATE TO BE ARBITRARY IN ITS GRANT OR DENIAL, AND TO MAKE
JUDGMENTS ON GROUNDS OTHER THAN THE FITNESS OF A PARTICULAR PERSON TO
PURSUE HIS CHOSEN PROFESSION.  IN THE CONTEXT OF ADMISSION TO THE BAR,
THE COURT HAS STATED: "OBVIOUSLY AN APPLICANT COULD NOT BE EXCLUDED
MERELY BECAUSE HE WAS A REPUBLICAN OR A NEGRO OR A MEMBER OF A
PARTICULAR CHURCH.  EVEN IN APPLYING PERMISSIBLE STANDARDS, OFFICERS OF
A STATE CANNOT EXCLUDE AN APPLICANT WHEN THERE IS NO BASIS FOR THEIR
FINDING THAT HE FIALS TO MEET THESE STANDARDS, OR WHEN THEIR ACTION IS
INVIDIOUSLY DISCRIMINATORY."  SCHWARE V. BOARD OF BAR EXAMINERS, 353
U.S. 232, 239 (1957).  THE HEARING REQUIREMENT HAS EQUALLY BEEN APPLIED
WHEN THE LICENSE WAS TO BE REMOVED, IN RE FUFFALO, 390 U.S. 544 (1968),
OR A LICENSEE HAS BEEN SUBJECT TO STATE REGULATION, OHIO BELL TELEPHONE
CO. V. PUBLIC UTILITIES COMM'N OF OHIO, 301 U.S. 292 (1937). 

SIMILAR PRINCIPLES PREVAIL WHEN THE STATE AFFORDS ITS PROCESS AND
MECHANISM OF DISPUTE SETTLEMENT, ITS LAW ENFORCEMENT OFFICERS, AND ITS
COURTS, IN AIDING ONE PERSON TO TAKE PROPERTY FROM ANOTHER.  WHEE THERE
IS A "TAKING"  BEFORE A FINAL DETERMINATION OF RIGHTS, AS IN SOME CASES
WHEN THE STATE SEIZES PROPERTY, TO PROTECT ONE OF THE PARTIES PENDENTE
LITE, THE COURT HAS ACTED ON THE ASSUMPTION THAT AT SOME TIME A FULL
HEARING WILL BE AVAILABLE, AS WHEN THERE IS AN ATTACHMENT OF PROPERTY
PRELIMINARY TO RESOLUTION OF THE MERITS OF A DISPUTE, OWNBEY V. MORGAN,
256 U.S. 94 (1921); COFFIN BROTHERS V. BENNETT, 277 U.S. 29 (1928);
MCKAY V. MCINNES, 279 U.S. 820 (1929).  THE OPPORTUNITY TO DEFEND ONE'S
PROPERTY BEFORE IT IS FINALLY TAKEN IS SO BASIC THAT IT HARDLY BEARS
REPEATING.  ADEQUATE NOTICE OF THE COURT PROCEEDING MUST BE FURNISHED,
MULLANE V. CENTRAL HANOVER BANK & TRUST CO., 339 U.S. 306 (1950), AND
THERE MUST BE JURISDICTION OVER THE PERSON, PENNOYER V. NEFF, 95 U.S.
714 (1878). 

SINCE THERE IS A NEED FOR SOME KIND OF HEARING BEFORE A PERSON IS
FINALLY DEPRIVED OF HIS PROPERTY, THE ARGUMENT IN THE INSTANT CASE, AND
THAT ADOPTED IN THE PLURALITY OPINION, IS THAT THERE IS SOMETHING
DIFFERENT ABOUT A FINAL TAKING FROM AN INDIVIDUAL OF PROPERTY RIGHTS
WHICH HAVE THEIR ORIGIN IN THE PUBLIC RATHER THAN THE PRIVATE SECTOR OF
THE ECONOMY, AND, AS APPLIED HERE, THAT THERE IS NO NEED FOR ANY
HEARING AT ANY TIME WHEN THE GOVERNMENT DISCHARGES A PERSON FROM HIS
JOB, EVEN THOUGH GOOD CAUSE OR THE DISCHARGE IS REQUIRED. 

IN CASES INVOLVING EMPLOYMENT BY THE GOVERNMENT, THE EARLIEST CASES
OF THIS COURT HAVE DISTINGUISHED BETWEEN TWO SITUATIONS, WHERE THE
ENTITLEMENT TO THE JOB IS CONDITIONED "AT THE PLEASURE" OF THE EMPLOYER
AND WHERE THE JOB IS TO BE HELD SUBJECT TO CERTAIN REQUIREMENTS BEING
MET BY THE EMPLOYEE, AS WHEN DISCHARGE MUST BE FOR "CAUSE".  THE COURT
HAS STATED: "THE INQUIRY IS THEREFORE WHETHER THERE WERE ANY CAUSES OF
REMOVAL PRESCRIBED BY LAW . . . . IF THERE WERE, THEN THE RULE WOULD
APPLY THAT WHERE CAUSES OF REMOVAL ARE SPECIFIED BY CONSTITUTION OR
STATUTE, AS ALSO WHERE THE TERM OF OFFICE IS FOR A FIXED PERIOD, NOTICE
AND HEARING ARE ESSENTIAL.  IF THERE WERE NOT, THE APPOINTING POWER
COULD REMOVE AT PLEASURE OR FOR SUCH CAUSE AS IT DEEMED SUFFICIENT." 
REAGAN V. UNITED STATES, 182 U.S. 419, 425 (1901); SHURTLEFF V. UNITED
STATES, 189 U.S. 311, 314 (1903).  THE COURT HAS THUS MADE CLEAR THAT
CONGRESS MAY LIMIT THE TOTAL DISCRETION OF THE EXECUTIVE IN FIRING AN
EMPLOYEE, BY PROVIDING THAT TERMINATIONS BE FOR CAUSE, AND ONLY FOR
CAUSE, AND, IF IT DOES SO, NOTICE AND A HEARING ARE "ESSENTIAL." 
WHERE EXECUTIVE DISCRETION IS NOT LIMITED, THERE IS NO NEED FOR A
HEARING.  IN THE LATTER EVENT, WHERE THE STATUTE HAS PROVIDED THAT
EMPLOYMENT AS A CLEAK WAS CONDITIONED ON "'MAINTAINING) THE RESPECT DUE
TO COURTS OF JUSTICE AND JUDICIAL OFFICERS,'" EX PARTE SECOMBE, 19
HOW.  9, 14 (1857), OR NO CONDITIONS AT ALL, EX PARTE HENNEN, 13 PET.
225 (1839) (CLERK OF THE COURT), NO HEARING IS REQUIRED.  SEE ALSO
CRENSHAW V. UNITED STATES, 134 U.S. 99 (1890) (NAVY OFFICER COULD BE
REMOVED AT WILL); PARSONS V. UNITED STATES, 167 U.S. 324 (1897)
(DISTRICT ATTORNEY COULD BE TERMINATED BY TEH PRESIDENT AT HIS
PLEASURE); KEIM V. UNITED STATES, 177 U.S. 290 (1900) (POST OFFICE
CLEARKS REMOVABLE AT PLEASURE).  TO LIKE EFFECT IS CAFETERIA WORKERS V.
MCELROY, 367 U.S 886 (1961), WHERE THE COURT HELD THAT NO HEARING NEED
BE PROVIDED TO A COOK EMPLOYED BY A PRIVATE CONCESSIONAIRE OF THE NAVY
BEFORE THE GOVERNMENT REVOKED HER SECURITY CLEARANCE.  THE REVOCATION
OF SECURITY CLEARANCES WAS WITHIN THE "UNFETTERED CONTROL" OF THE NAVY
IN ORDER "TO MANAGE THE INTERNAL OPERATION OF AN IMPORTANT FEDERAL
MILITARY ESTABLISHMENT."  ID., AT 896.  THE COURT THERE ASSUMED THAT
"RACHEL BRAWNER COULD NOT CONSTITUTIONALLY HAVE BEEN EXCLUDED FROM THE
GUN FACTORY IF THE ANNOUNCED GROUNDS FOR HER EXCLUSION HAD BEEN
PATENTLY ARBITRARY OR DISCRIMINATORY . . . ."  IF., AT 898. 

WHERE THE CONGRESS HAS CONFINED EXECUTIVE DISCRETION, NOTICE AND
HEARING HAVE BEEN REQUIRED.  IN ANTI-FASCIST COMMITTEE V. MCGRATH, 341
U.S. 123 (1951), AN ORGANIZATION WAS PUT ON THE ATTORNEY GENERAL'S
LIST, AS DISLOYAL TO THE UNITED STATES, WITHOUT A HEARING BEFORE THE
ATTORNEY GENERAL.  THE EXECUTIVE ORDER, AS DEFINED BY IMPLEMENTING
REGULATIONS, REQUIRED THE EXECUTIVE TO MAKE AN "APPROPRIATE
DETERMINATION"  OF DISLOYALTY.  IT WAS APPARENT THAT MEMBERS OF
ORGANIZATIONS EMPLOYED BY THE GOVERNMENT WHO BELONGED TO AN
ORGANIZATION ON THE ATTORNEY GENERAL'S LIST WOULD BE IN DANGER OF
LOSING THEIR JOBS.  THE COURT HELD, ASSUMING THE FACTS AS ALLEGED BY
THE COMPLAINTS WERE TRUE, THAT IT WOULD BE ARBITRARY, AND NOT
CONSISTENT WITH AN "APPROPRIATE DETERMINATION," TO DENY A HEARING ON
THE MATTER TO THE AFFECTED ORGANIZATIONS.  AS MR. JUSTICE FRANKFURTER
OBSERVED IN HIS CONCURRING OPINION, "(THE HEART OF THE MATTER IS THAT
DEMOCRACY IMPLIES RESPECT FOR THE ELEMENTARY RIGHTS OF MEN, HOWEVER
SUSPECT OR UNWORTHY; A DEMOCRATIC GOVERNMENT MUST THEREFORE PRACTICE
FAIRNESS; AND FAIRNESS CAN RARELY BE OBTAINED BY SECRET, ONE-SIDED
DETERMINATION OF FACTS DECISIVE OF RIGHTS."  ID., AT 170. 

TO SOME EXTENT, MCGRATH, AND LIKE CASES, SEE GREENE V. MCELROY, 360
U.S. 474 (1959), DEPENDED ON STATUTORY CONSTRUCTION, THE INTENT OF
CONGRESS TO REQUIRE THAT PROCEDURAL FAIRNESS BE OBSERVED IN MAKING
DECISIONS ON SECURITY CLEARANCES OR STATUS, WHICH AFFECTED EMPLOYMENT,
BUT IT IS OBVIOUS THAT THE CONSTITUTIONAL REQUIREMENTS OF FAIRNESS WERE
A GUIDING HAND TO THE COURT'S STATUTORY INTERPRETATION.  "WHERE
ADMINISTRATIVE ACTION HAS RAISED SERIOUS CONSTITUTIONAL PROBLEMS, THE
COURT HAS ASSUMED THAT CONGRESS OR THE PRESIDENT INTENDED TO AFFORD
THOSE AFFECTED BY THE ACTION THE TRADITIONAL SAFEGUARDS OF DUE
PROCESS," AND IT HAS BEEN "THE COURT'S CONCERN THAT TRADITIONAL FORMS
OF FAIR PROCEDURE NOT BE RESTRICTED BY IMPLICATION OR WITHOUT THE MOST
EXPLICIT ACTION BY THE NATION'S LAWNMAKERS . . . ."  ID., AT 507 -
508. 

THE CONCERN OF THE COURT THAT FUNDAMENTAL FAIRNESS BE OBSERVED WHEN
THE STATE DEALS WITH ITS EMPLOYEES HAS NOT BEEN LIMITED TO ACTION WHICH
IS DISCRIMINATORY AND INFRINGES ON CONSTITUTIONALLY PROTECTED RIGHTS,
AS IN WIEMAN V. UPDEGRAFF, 344 U.S. 183 (1952); SLOCHOWER V. BOARD OF
EDUCATION, 350 U.S. 551 (1956); SPEISER V. RANDALL, 357 U.S. 513
(1958); SHERBERT V. VERNER, 374 U.S. 207 (1971).  IT HAS BEEN OBSERVED
THAT "CONSTITUTIONAL PROTECTION DOES EXTEND TO THE PUBLIC SERVANT WHOSE
EXCLUSION PURSUANT TO A STATUTE IS PATENTLY ARBITRARY OR
DISCRIMINATORY."  WEIHAM V. UPDEGRAFF, SUPRA, AT 192; SLOCHOWER V.
BOARD OF EDUCATION, SUPRA, AT AT 556.  IN SLOCHOWER, SUPRA, NEW YORK
LAW PROVIDED THAT A TENURED EMPLOYEE TAKING THE FIFTH AMENDMENT BEFORE
A LEGISLATIVE COMMITTEE INQUIRING INTO HIS OFFICIAL CONDUCT COULD BE
FIRED.  QUITE APART FROM THE FIFTH AMENDMENT "PENALTY" ASSESSED BY THE
STATE, THE COURT WAS CONCERNED WITH THE ARBITRARINESS OF DRAWING A
CONCLUSION, WITHOUT A HEARING, THAT ANY EMPLOYEE WHO TOOK THE FIFTH
AMENMENT WAS GUILTY OR UFIT FOR EMPLOYMENT.  THE COURT STATED: 

"THIS IS NOT TO SAY THAT SLOCHOWER HAS A CONSTITUTIONAL RIGHT TO BE
AN ASSOCIATE PROFESSOR OF GERMAN AT BROOKLYN COLLEGE.  THE STATE HAS
BROAD POWERS IN THE SELECTION AND DISCHARGE OF ITS EMPLOYEES, AND IT
MAY BE THAT PROPER INQUIRY WOULD SHOW SLOCHOWER'S CONTINUED EMPLOYMENT
TO BE INCONSISTENT WITH A REAL INTEREST OF THE STATE.  BUT THERE HAS
BEEN NO SUCH INQUIRY HERE."  ID., AT 559. 

THE COURT'S DECISIONS IN BOARD OF REGENTS V. ROTH, 408 U.S. 564
(1972), AND PERRY V. SINDERMANN, 408 U.S. 593 (1972), REITERATE THE
NOTION THAT THE EXECUTIVE CANNOT BE ARBTIRARY IN DEPRIVING A PERSON OF
HIS JOB, WHEN THE LEGISLATURE HAS PROVIDED THAT A PERSON CANNOT BE
FIRED EXCEPT FOR CAUSE, AND, IF ANYTHIN, EXTEND THE PRINCIPLES BEYOND
THE FACTS OF THIS CASE. 

IN SINDERMANN, A TEACHER WHO HAD HELD HIS POSITION FOR A NUMBER OF
YEARS BUT WAS NOT TENURED UNDER CONTRACT, ALLEGED THAT HE HAD DE FACTO
TENURE UNDER CONTRACT LAW DUE TO "THE EXISTENCE OF RULES OR
UNDERSTANDINGS"  WITH THE COLLEGE WHICH EMPLOYED HIM, ID., AT 602.  THE
COURT HELD THAT IF THE PROFESSOR COULD PROVE THE EXISTENCE OF A
PROPERTY INTEREST IT WOULD "OBLIGATE COLLEGE OFFICIALS TO GRANT A
HEARING AT HIS REQUEST, WHERE HE COULD BE INFORMED OF THE GROUNDS FOR
HIS NONRETENTION AND CHALLENGE THEIR SUFFICIENCY."  ID., AT 603.  IN
ROTH, AN ASSISTANT PROFFESSOR WAS HIRED FOR A FIXED TERM OF ONE
ACADEMIC YEAR, AND HAD NO TENURE.  THE COURT HELD THAT THE TEACHER HAD
NO PROPERTY INTEREST IN THE JOB, SINCE THE TERMS OF EMPLOYMENT ALLOWED
THAT HIS CONTRACT NOT BE RENEWED.  THE CRITICAL CONSIDERATION WAS THAT
THE TERMS "DID NOT PROVIDE FOR CONTRACT RENEWAL ABSENT 'SUFFICIENT
CAUSE.'"  408 U.S., AT 578.  THE RIGHTS TO CONTINUED EMPLOYMENT WERE
DETERMINED BY STATE LAW.  THE COURT TOOK GREAT PAINS, HOWEVER, TO POINT
OUT THAT A TENURED APPOINTMENT, PROVIDING FOR ENTITLEMENT TO A JOB,
ABSENT CAUSE, WOULD BE A FAR DIFFERENT CASE. 

THESE CASES ONLY SERVE TO EMPHASIZE THAT WHERE THERE IS A LEGITIMATE
ENTITLEMENT TO A JOB, AS WHEN A PERSON IS GIVEN EMPLOYMENT SUBJECT TO
HIS MEETING CERTAIN SPECIFIC CONDITIONS, DUE PROCESS REQUIRES, IN ORDER
TO INSURE AGAINST ARBITRARINESS BY THE STATE IN THE ADMINISTRATION OF
ITS LAW, THAT A PERSON BE GIVEN NOTICE AND A HEARING BEFORE HE IS
FINALLY DISCHARGED.  AS THE COURT STATED IN DISMUKE V. UNITED STATES,
297 U.S. 167, 172 (1936): 

"IF (THE ADMINISTRATIVE OFFICER) IS AUTHORIZED TO DETERMINE
QUESTIONS OF FACT HIS DECISION MUST BE ACCEPTED UNLESS HE EXCEEDS HIS
AUTHORITY . . . BY FAILING TO FOLLOW A PROCEDURE WHICH SATISFIES
ELEMENTARY STANDARDS OF FAIRNESS AND REASONABLENESS ESSENTIAL TO THE
DUE CONDUCT OF THE PROCEEDING WHICH CONGRESS HAS AUTHORIZED."  TO BE
SURE, TO DETERMINE THE EXISTENCE OF THE PROPERTY INTEREST, AS FOR
EXAMPLE, WHETHER A TEACHER IS TENURED OR NOT, ONE LOOKS TO THE
CONTROLLING LAW, IN THIS CASE FEDERAL STATUTORY LAW, THE LLOYD-LA
FOLLETTE ACT, WHICH PROVIDES THAT A PERSON CAN ONLY BE FIRED FOR
CAUSE.  THE FACT THAT THE ORIGINS OF THE PROPERTY RIGHT ARE WITH THE
STATE MAKES NO DIFFERENCE FOR THE NATURE OF THE PROCEDURES REQUIRED. 
WHILE THE STATE MAY DEFINE WHAT IS AND WHAT IS NOT PROPERTY, ONCE
HAVING DEFINED THOSE RIGHTS THE CONSTITUTION DEFINES DUE PROCESS, AND
AS I UNDERSTAND IT SIX MEMBERS OF THE COURT ARE IN AGREEMENT ON THIS
FUNDAMENTAL PROPOSITION. 

I CONCLUDE, THEREFORE, THAT AS A MATTER OF DUE PROCESS, A HEARING
MUST BE HELD AT SOME TIME BEFORE A COMPETITIVE CIVIL SERVICE EMPLOYEE
MAY BE FINALLY TERMINATED FOR MISCONDUCT.  HERE, THE CONSTITUTION AND
THE LLOYD-LA FOLLETTE ACT CONVERGE, BECAUSE A FULL TRIAL-TYPE HEARING
IS PROVIDED BY STATUTE BEFORE TERMINATION FROM THE SERVICE BECOMES
FINAL, BY WAY OF APPEAL EITHER THROUGH OEO, THE CIVIL SERVICE
COMMISSION, OR BOTH.  /7/ 

A DIFFERENT CASE MIGHT BE PUT, OF COURSE, IF THE TERMINATION WERE
FOR REASONS OF PURE INEFFICIENCY, ASSUMING SUCH A GENERAL REASON COULD
BE GIVEN, IN WHICH CASE IT WOULD BE AT LEAST ARGUABLE THAT A HEARING
WOULD SERVE NO USEFUL PURPOSE AND THAT JUDGMENTS OF THIS KIND ARE BEST
LEFT TO THE DISCRETION OF ADMINISTRATIVE OFFICIALS.  THIS IS NOT SUCH A
CASE, HOWEVER, SINCE KENNEDY WAS TERMINATED ON SPECIFIC CHARGES OF
MISCONDUCT. 

        III 

THE SECOND QUESTION WHICH MUST BE ADDRESSED IS WHETHER A HEARING OF
SOME SORT MUST BE HELD BEFORE ANY "TAKING" OF THE EMPLOYEE'S PROPERTY
INTEREST IN HIS JOB OCCURS, EVEN IF A FULL HEARING IS AVAILABLE BEFORE
THAT TAKING BECOMES FINAL.  I MUST RESOLVE THIS QUESTION BECAUSE IN MY
VIEW A FULL HEARING MUST BE AFFORDED AT SOME JUNCTURE AND THE CLAIM IS
THAT IT MUST OCCUR PRIOR TO TERMINATION.  IF THE RIGHT TO ANY HEARING
ITSELF IS A PURE MATTER OF PROPERTY DEFINITION, AS THE PLURALITY
OPINION SUGGESTS, THEN THAT QUESTION NEED NOT BE FACED, FOR ANY KIND OF
HEARING, OR NO HEARING AT ALL, WOULD SUFFICE.  AS I HAVE SUGGESTED, THE
STATE MAY NOT DISPENSE WITH THE MINIMUM PROCEDURES DEFINED BY DUE
PROCESS, BUT DIFFERENT CONSIDERATIONS COME INTO PLAY WHEN DECIDING
WHETHER A PRETERMINATION HEARING IS REQUIRED AND, IF IT IS, WHAT KIND
OF HEARING MUST BE HAD. 

IN PASSING UPON CLAIMS TO A HEARING BEFORE PRELIMINARY BUT NONFINAL
DEPRIVATION, THE USUAL RULE OF THIS COURT HAS BEEN THAT A FULL HEARING
AT SOME TIME SUFFICES.  "WE HAVE REPEATEDLY HELD THAT NO HEARING AT THE
PRELIMINARY STAGE IS REQUIRED BY DUE PROCESS SO LONG AS THE REQUISITE
HEARING IS HELD BEFORE THE FINAL ADMINISTRATIVE ORDER BECOMES
EFFECTIVE."  "IT IS SUFFICIENT, WHERE ONLY PROPERTY RIGHTS ARE
CONCERNED, THAT THERE IS AT SOME STAGE AN OPPORTUNITY FOR A HEARING AND
A JUDICIAL DETERMINATION."  EWING V. MYTINGER & CASSLEBERRY, 339 U.S.,
AT 598, 599.  SEE ALSO PHILLIPS V. COMMISSIONER, 283 U.S. 589, 596 -
597 (1931); SCOTTISH UNION & NATIONAL INSURANCE CO. V. BOWLAND 196 U.S.
611, 631 - 632 (1905); SPRINGER V. UNITED STATES, 102 U.S. 586, 593 -
594 (1881).  THIS HAS SEEMINGLY BEEN THE RULE WHETHER THE STATE WAS
TAKING PROPERTY FROM THE PERSON, AS IN THE ABOVE-CITED CASES, OR
WHETHER ONE PERSON WAS TAKING IT FROM ANOTHER THROUGH THE PROCESS OF
STATE COURTS.  SEE OWNBERY V. MORGAN, 256 U.S. 94 (1921); COFFIN
BROTHERS V. BENNETT, 277 U.S. 29 (1928); MCKAY V. MCINNES, 279 U.S. 820
(1929). 

IN RECENT YEARS, HOWEVER, IN A LIMITED NUMBER OF CASES, THE COURT
HAS HELD THAT A HEARING MUST BE FURNISHED AT THE FIRST STAGE OF TAKING,
EVEN WHERE A LATER HEARING WAS PROVIDED.  THIS HAS BEEN TRUE IN THE
REVOCATION OF A STATE-GRANTED LICENSE, BELL V. BURSON, 402 U.S. 535
(1971), AND IN SUITS BETWEEN PRIVATE PARTIES, WHERE SUMMARY REPLEVIN
PROCEDURES, FUENTES V. SHEVIN, 407 U.S. 67 (1972), OR GARNISHMENT
PROCEDURES, WERE ATTACKED, SNIADACH V. FAMILY FINANCE CORP., 385 U.S.
337 (1969), AND WHEN THE STATE HAS SOUGHT TO TERMINATE WELFARE
BENEFITS, GOLDBERG V. KELLY, 397 U.S. 254 (1970).  /8/ 

THESE CONFLICTING LINES OF CASES DEMONSTRATE, AS THE COURT STATED IN
CAFETERIA & RESTURANT WORKERS V. MCELROY, 367 U.S., AT 895, THAT
"CONSIDERATION OF WHAT PROCEDURES DUE PROCESS MAY REQUIRE UNDER ANY
GIVEN SET OF CIRCUMSTANCES MUST BEGIN WITH A DETERMINATION OF THE
PRECISE NATURE OF THE GOVERNMENT FUNCTION INVOLVED AS WELL AS OF THE
PRIVATE INTEREST THAT HAS BEEN AFFECTED BY GOVERNMENTAL ACTION."  SEE
ALSO HANNAH V. LARCHE, 363 U.S. 420, 440, 442 (1960); GOLDBERG V.
KELLY, SUPRA, AT 263.  IN ASSESSING WHETHER A PRIOR HEARING IS
REQUIRED, THE COURT HAS LOOKED TO HOW THE LEGITIMATE INTERESTS ASSERTED
BY THE PARTY ASSERTING THE NEED FOR A HEARING, AND THE PARTY OPPOSING
IT, WOULD BE FURTHERED OR HINDERED. 

IN MANY CASES, WHERE THE CLAIM TO A PRETERMINATION HEARING HAS BEEN
REJECTED, IT APPEARS THAT THE LEGITIMATE INTEREST OF THE PARTY OPPOSING
THE HEARING MIGHT BE DEFEATED OUTRIGHT IF SUCH HEARING WERE TO BE
HELD.  /9/  FOR EXAMPLE, WHEN THE GOVERNMENT OR A PRIVATE PARTY LAYS
CLAIM TO PROPERTY THERE IS OFTEN THE DANGER THAT THE PERSON IN
POSSESSION OF THE PROPERTY MAY ALIENATE OR WASTE IT, AND THE GOVERNMENT
OR PRIVAT PARTY MAY BE WITHOUT RECOURSE.  THUS, THE COURT HAS HELD THAT
THERE IS NO NEED FOR A PRIOR HEARING WHERE THE GOVERNEMNT HAS TAKEN
PRELIMINARY CUSTODY OF ALLEGED ENEMY PROPERTY BEFORE ACTUAL TITLE TO
THE PROPERTY IS DETERMINED, CENTRAL TRUST CO. V. GARVAN, 254 U.S. 554
(1921); STOEHR V. WALLACE, 255 U.S. 239 (1921), OR WHERE A PRIVATE
CREDITOR HAS SOUGHT TO ATTACH PROPERTY OF A DEBTOR.  SEE OWNBEY V.
MORGAN, SUPRA; COFFIN BROTHERS V. BENNETT, SUPRA; MCKAY V. MCINNES,
SUPRA.  OF COURSE SUCH SUMMARY ACTION MUST BE AUTHORIZED IN SUCH A
MANNER AS TO MINIMIZE THE POSSIBILITIES OF A MISTAKEN DEPRIVATION, BY A
PUBLIC OFFICIAL IN THE CASE OF ADMINISTRATIVE ACTION, OR A JUDGE WHERE
THE PROCESSES OF THE COURT ARE USED.  FUENTES V. SHEVIN, SUPRA. 

THE DANGER THAT THE PURPOSE OF THE ACTION MAY BE DEFEATED, OR MADE
EXCEEDINGLY DIFFICULT, BY REQUIRING A PRIOR HEARING, IS ILLUSTRATED BY
NORTH AMERICAN COLD STORAGE CO. V. CHICAGO, 211 U.S. 306 (1908), WHERE
THE COURT SUSTAINED THE CONSTITUTIONALITY OF AN ILLINOIS STATUTE
PERMITTING HEALTH INSPECTORS TO ENTER COLD-STORAGE HOUSES AND
"FORTHWITH SEIZED, CONDEMN AND DESTROY" UNFIT FOOD.  THE DEFENDANTS IN
THE ACTION CLAIMED THAT WHILE IT MAY BE NECESSARY TO SEIZE THE FOOD
PENDING A HEARING, SURELY DESTRUCTION OF THAT FOOD COULD NOT BE
JUSTIFIED.  NONETHELESS, THE COURT OBSERVED:    "IF A HEARING WERE TO
BE ALWAYS NECESSARY, EVEN UNDER THE CIRCUMSTANCES OF THIS CASE, THE
QUESTION AT ONCE ARISES AS TO WHAT IS TO BE DONE WITH THE FOOD IN THE
MEANTIME.  IS IT TO REMAIN WITH THE COLD STORAGE COMPANY, AND IF SO
UNDER WHAT SECURITY THAT IT WILL NOT BE REMOVED?  TO BE SURE THAT IT
WILL NOT BE REMOVED DURING THE TIME NECESSARY FOR THE HEARING, WHICH
MIGHT FREQUENTLY BE INDEFINITELY PROLONGED, SOME GUARD WOULD PROBABLY
HAVE TO BE PLACED OVER THE SUBJECT-MATTER OF THE INVESTIGATION, WHICH
WOULD INVOLVE EXPENSE, AND MIGHT NOT EVEN THEN PROVE EFFECTUAL."  IF.,
AT 320.  SIMILAR INABILITIES OF THE PARTY CLAIMING A RIGHT TO A PRIOR
HEARING, TO MAKE THE MOVING PARTY IN THE SUIT WHOLE, HAVE APPEARED
WHERE INCOMPETENCE AND MALFEASANCE IN THE ADMINISTRATION OF A BANK
COULD PRECIPITATE A FINANCIAL COLLAPSE IN THE COMMUNITY, WHICH WOULD GO
UNCOMPENSATED, SEE FAHEY V. MALLONEE, 332 U.S., AT 250, OR WHERE, IN
THE ABSENCE OF A JEOPARDY ASSESSMENT BY THE TAX COMMISSIONER, A
TAXPAYER MIGHT WASTE OR CONCEAL HIS ASSETS, SEE PHILLIPS V.
COMMISSIONER, SUPRA. IN ALL SUCH CASES IT IS ALSO SIGNIFICANT THAT THE
PARTY ADVANCING THE CLAIM TO A SUMMARY PROCEDURE STANDS READY TO MAKE
WHOLE THE PARTY WHO HAS BEEN DEPRIVED OF HIS PROPERTY, IF THE INITIAL
TAKING PROVES TO BE WRONGFUL, EITHER BY THE CREDIT OF THE PUBLIC FISC
OR BY POSTING A BOND. 

OF COURSE, THIS PRINCIPLE CANNOT BE APPLIED WITH SUCCESS TO EXPLAIN
THE COURT'S DECISIONS IN CASES HOLDING THAT A PRETERMINATION HEARING IS
REQUIRED; IT IS NOT TRUE THAT THE PARTY ENTITLED TO THE HEARING STANDS
READY TO COMPENSATE THE ADVERSARY FOR WHAT MAY BE THE WRINGFUL
POSSESSION OF THE PROPERTY IN QUESTION DURING THE PENDENCY OF THE
LITIGATION.  THIS IS VIVIDLY ILLUSTRATED IN GOLDBERG V. KELLY WHERE THE
COURT OBSERVED THAT "THE BENEFITS PAID TO INELIGIBLE RECIPIENTS PENDING
DECISION AT THE HEARING PROBABLY CANNOT BE RECOUPED, SINCE THESE
RECIPIENTS ARE LIKELY TO BE JUDGMENT PROOF."  397 U.S., AT 266. 
HOWEVER, OTHER CONSIDERATIONS HAVE PROVED DECISIVE, SUCH AS: THE RISK
THAT THE INITIAL DEPRIVATION MAY BE WRONGFUL; THE IMPACT ON THE CLAIM
TO A HEARING OF NOT HAVING THE PROPERTY WHILE HE WAITS FOR A FULL
HEARING; THE INTEREST OF THE PARTY OPPOSING THE PRIOR HEARING AND
ASSERTING THE NEED FOR IMMEDIATE POSSISSION IN NOT ALERTING THE CURRENT
POSSESSOR TO THE LAWSUIT; AND THE RISK OF LEAVING THE PROPERTY IN
POSSESSION OF THE CURRENT POSSESSOR BETWEEN THE TIME NOTICE IS SUPPLIED
AND THE TIME OF THE PRELIMINARY HEARING. 

IN GOLDBERG AND SNIADACH, THE COURT OBSERVED THAT THERE WAS A
SUBSTANTIAL CHANCE THAT THE CLAIMANT TO THE PROPERTY, BE IT THE STATE
OR GARNISHOR, WOULD LOSE IN THE ULTIMATE RESOLUTION OF THE
CONTROVERSY.  IN GOLDBERG, THE COURT TOOK NOTE OF THE "WELFARE
BUREAUCRACY'S DIFFICULTIES IN REACHING CORRECT DECISIONS ON
ELIGIBILITY."  397 U.S., AT 264 N. 12.  SINCE THE TIME OF THE DECISION
IN GOLDBERG, AT LEAST ONE STUDY HAS SHOWN THAT DECISIONS TO TERMINATE
BENEFITS HAVE BEEN REVERSED WITH A FAIR DEGREE OF FREQUENCY.  /10/
CONCERN WAS ALSO EXPRESSED WITH THE USE OF GARNISHMENT IN A VAST NUMBER
OF CASES WHERE THE DEBT WAS FRAUDULENT.  SNIADACH, 395 U.S., AT 341. 
IN FUENTES, ALTHOUGH NO SUCH EMPIRICAL EVIDENCE WAS AVAILABLE, THE RISK
OF WRONGFUL DEPRIVATIONS WAS UNNECESSARILY INCREASED BY ALLOWING A
CLEAK, RATHER THAN A JUDGE, TO PASS ON THE CREDITOR'S CLAIM FOR SUMMARY
REPLEVIN.  IN BELL, THE COURT HELD UNCONSTITUTIONAL A STATE STATUTE
REQUIRING SUMMARY SUSPENSION OF A DRIVER'S LICENSE OF ANY UNINSURED
MOTORIST WHO WAS UNABLE AFTER AN ACCIDENT TO POST SECURITY FOR THE
AMOUNT OF THE DAMAGES CLAIMED AGAINST HIM.  THE ONLY HEARING HELD BY
THE STATE ON THE ISSUE OF SUSPENSION EXCLUDED ANY CONSIDERATION OF
FAULT, THE STANDARD ON WHICH THE VALIDITY WOULD ULTIMATELY TURN. 
WITHOUT SOME KIND OF PROBABLE-CAUSE DETERMINATION OF FAULT, IT WAS
OBVIOUS THAT MANY SUSPENSIONS WOULD PROVE TO BE UNWARRANTED. 

AS FOR THE IMPACT ON THE CURRENT PROPERTY POSSESSOR OF NOT HAVING AN
EARLY PRETERMINATION HEARING, THE COURT HAS HELD THAT WITHOUT
POSSESSION OF THE PROPERTY A PERSON MAY BE UNABLE TO EXIST AT EVEN A
MINIMUM STANDARD OF DECENCY.  IN GOLDBERG, WHERE THE PERSON WOULD HAVE
LOST THE LAST SOURCE OF SUPPORT AVAILABLE, ASIDE FROM CHARITY, THE
COURT OBSERVED THAT "TERMINATION OF AID PENDING RESOLUTION OF A
CONTROVERSY OVER ELIGIBILITY MAY DEPRIVE AN ELIGIBLE RECIPIENT OF THE
VERY MEANS BY WHICH TO LIVE WHILE HE WAITS.  SINCE HE LACKS INDEPENDENT
RESOURCES, HIS SITUATION BECOMES IMMEDIATELY DESPERATE."  397 U.S., AT
264.  IN FACT, THE MAGNITUDE OF DEPRIVATION MAY BE SUCH AS TO PREVENT
THE WELFARE RECIPIENT FROM PURSUING HIS RIGHT TO A LATER FULL HEARING. 
IBID.  IN SNIADACH, THE SEIZURE OF AN INDIVIDUAL'S WAGES COULD "AS A
PRACTICAL MATTER DRIVE A WAGE-EARNING FAMILY TO THE WALL."  395 U.S.,
AT 341 - 342 (FOOTNOTE OMITTED).  IN BELL, THE PETITIONER WAS A
CLERGYMAN WHOSE MINISTRY REQUIRED HIM TO TRAVEL BY CAR TO COVER THREE
RURAL GEORGIA COMMUNITIES, AND HE WAS "SEVERLY HANDICAPPED IN THE
PERFORMANCE OF HIS MINISTERIAL DUTIES BY A SUSPENSION OF HIS
LICENSES."  402 U.S., AT 537.  THE IMPACT OF DEPRIVATION INCREASES, OF
COURSE, THE LONGER THE TIME PERIOD BETWEEN THE INITIAL DEPRIVATION AND
THE OPPORTUNITY TO HAVE A FULL HEARING.  IN GOLDBERG, THE COURT NOTED
THAT ALTHOUGH PERTINENT NEW YORK REGULATIONS PROVIDED THAT A "FAIR
HEARING" BE HELD WITHIN 10 WORKING DAYS OF THE REQUEST, WITH DECISION
WITHIN 12 WORKING DAYS THEREAFTER, "(IT WAS CONCEDED IN ORAL ARGUMENT
THAT THESE TIME LIMITS ARE NOT IN FACT OBSERVED."  397 U.S., AT 260 N.
5.  IN SNIADACH AND FUENTES, THERE WAS NO INDICATION OF THE SPEED WITH
WHICH A COURT RULING ON GARNISHMENT AND POSSESSION WOULD BE RENDERED,
AND OF COURSE THE ULTIMATE ISSUES ON THE MERITS IN SUCH CASES MUST WAIT
FOR A STILL LATER DETERMINATION.  IN BELL, THE ISSUE OF LIABILITY MIGHT
NOT BE DETERMINED UNTIL FULL TRIAL PROCEEDINGS IN COURT. 

THE LAST FACTOR TO BE WEIGHED IN THE BALANCE IS THE DANGER TO THE
PARTY CLAIMING POSSESSION OCCASIONED BY ALERTING THE CURRENT POSSESSOR
TO THE LAWSUIT, AND THEN LEAVING THE PROPERTY IN HIS HANDS PENDING THE
HOLDING OF THE PRELIMINARY HEARING.  IN GOLDBERG AND SNIADACH, THE
PROPERTY RIGHT SEIZED WAS A FLOW OF INCOME, IN ONE CASE FROM THE
GOVERNMENT, AND IN THE OTHER FROM THE PROVATE EMPLOYER, PENDING THE
PRELIMINARY HEARING.  THE GOVERNMENT RAN NO SPECIAL RISK BY SUPPLYING
NOTICE IN ADVANCE OF THE CUTOFF, SINCE THE GOVERNMENT WAS IN POSSESSION
OF THE FLOW OF INCOME UNTIL IT WAS TURNED OVER PIECEMEAL TO THE WELFARE
RECIPIENT.  FURTHER, THOUGH THE GOVERNMENT COULD ASSERT IN THE WELFARE
CASE THAT IT WOULD INCUR AN UNCOMPENSATED LOSS, THAT RISK WOULD ONLY BE
INCURRED FROM THE TIME THE LAST CHECK IS DELIVERED UNTIL THE
PRETERMINATION HEARING IS HELD AND THE ADMINISTRATIVE AGENCY CERTAINLY
HAS THE POWER TO OFFER A SPEEDY HEARING BEFORE THAT TIME IS REACHED. 
SEE GOLDBERG V. KELLY, SUPRA, AT 266.  IN SNIADACH, WHILE IT WAS TRUE
THAT THE INABILITY TO GARNISH WAGES COULD LEAVE THE CREDITOR
UNCOMPENSATED, IF THE DEBTOR PROVED JUDGMENT PROOF, THIS WAS A RISK THE
CREDITOR ASSUMED AT THE OUTSET BY BEING UNSECURED.  FURTHER, NOTICE TO
THE DEBTOR OF THE PENDENCY OF THE LAWSUIT IS NOT LIKELY TO INCREASE THE
RISK THAT THE DEBTOR WILL PROVE TO BE JUDGMENT PROOF, SINCE THE DEBTOR
IS NOT LIKELY TO LEAVE HIS JOB DUE TO THE PENDENCY OF THE SUIT. 
LIKEWISE, THE RISK TO THE CREDITOR OF THE DEBTOR'S DRAWING ON HIS WAGES
BETWEEN THE TIME OF NOTICE AND THE AVAILABILITY OF A COURT HEARING ON
THE CLAIM IN NO WAY INTERFERES WITH THE CREDITOR'S CLAIM TO THE FUTURE
FLOW OF EARNINGS AFTER THE HEARING HAS BEEN HELD.  THE GARNISHOR,
THEREFORE, ASSERTS NOT ONLY THE RIGHT TO TAKE THE DEBTOR'S WAGES, BUT
TO TAKE THEM BEFORE THE CONTROVERSY HAS BEEN RESOLVED.  IN BELL, THE
RISK TO THE STATE OF SUPPLYING NOTICE TO THE LICENSEE AND OF LEAVING
THE PERSON IN POSSESSION OF THE LICENSE UNTIL THE HEARING, WAS NOT AT
ISSUE, SINCE THE STATE STATUTE PROVIDED FOR NOTICE AND A PRESUSPENSION
HEARING.  THERE WERE FEW COSTS ATTACHED TO EXPANDING THE SCOPE OF THAT
HEARING TO INCLUDE A PROBABLE-CAUSE DETERMINATION OF FAULT. 

WITH THE ABOVE PRINCIPLES IN HAND, IS THE TENURED CIVIL-SERVICE
EMPLOYEE ENTITLED TO A PRETERMINATION HEARING, SUCH AS THAT PROVIDED BY
THE LLOYD-LA FOLLETTE ACT? 

THERE WOULD BE A PROBLEM OF UNCOMPENSATED LOSS TO THE GOVERNMENT, IF
THE EMPLOYEE WERE TO DRAW WAGES WITHOUT WORKING FOR THE PERIOD BETWEEN
NOTICE OF A DISCHARGE AND A PRELIMINARY HEARING.  YET, IF THE CHARGE
AGAINST THE EMPLOYEE DID NOT INDICATE THAT THE EMPLOYEE SHOULD BE
EXCLUDED FROM THE WORKPLACE PENDING THIS HEARING, SOME WORK COULD BE
EXACTED BY THE GOVERNMENT IN EXCHANGE FOR ITS PAYMENT OF SALARY.  ONE
MUST ALSO CONSIDER ANOTHER TYPE OF COST TO THE GOVERNMENT IF
PRESEPARATION HEARINGS WERE PROVIDED--THE NECESSITY OF KEEPING A PERSON
ON THE SCENE WHO MIGHT INJURE THE PUBLIC INTEREST THROUGH POOR SERVICE
OR MIGHT CREATE AN UPROAR AT THE WORKPLACE.  HOWEVER, SUSPENSION WITH
PAY WOULD OBVIATE THIS PROBLEM. 

ON THE EMPLOYEE'S SIDE OF THE LEDGER, THERE IS THE DANGER OF
MISTAKEN TERMINATION.  DISCHARGE DECISIONS, MADE EX PARTE, MAY BE
REVERSED AFTER FULL HEARING.  ONE STUDY REVEALS THAT IN FISCAL YEAR
1970, IN AGENCIES WHERE FULL PRETERMINATION HEARINGS WERE ROUTINE,
EMPLOYEES CONTESTING REMOVAL WERE SUCCESSFUL ALMOST 20% OF THE TIME. 
MERRILL, PROCEURES FOR ADVERSE ACTIONS AGAINST FEDERAL EMPLOYEES, 59
VA. L. REV. 196, 204 N. 35 (1973). 

THE IMPACT ON THE EMPLOYEE OF BEING WITHOUT A JOB PENDING A FULL
HEARING IS LIKELY TO BE CONSIDERABLE BECAUSE "(MORE THAN 75 PERCENT OF
ACTIONS CONTESTED WITHIN EMPLOYING AGENCIES REQUIRE LONGER TO DECIDE
THAN THE 60 DAYS PRESCRIBED BY (CIVIL SERVICE) COMMISSION REGULATIONS. 
OVER 50 PERCENT TAKE MORE THAN THREE MONTHS, AND FIVE PERCENT ARE IN
PROCESS FOR LONGER THAN A YEAR."  ID., AT 206.  OF COURSE, THE
DISCHARGED CIVIL SERVANT, DEPRIVED OF HIS SOURCE OF INCOME, CAN SEEK
EMPLOYMENT IN THE PRIVATE SECTOR AND SO CUT OR MINIMIZE HIS LOSSES,
OPPORTUNITIES LARGELY UNAVAILABLE TO THE WELFARE RECIPIENT IN GOLDBERG
OR THE DEBTOR IN SNIADACH.  NONETHELESS, THE EMPLOYEE MAY NOT BE ABLE
TO GET A SATISFACTORY POSITION IN THE PRIVATE SECTOR, PARTICULARLY A
TENURED ONE, AND HIS MARKETABILITY MAY BE UNDER A CLOUD DUE TO THE
CIRCUMSTANCES OF HIS DISMISSAL.  SEE LEFKOWITZ V. TURLEY, 414 U.S. 70,
83 - 84 (1973).  CF. BOARD OF REGENTS V. ROTH, 408 U.S., AT 574 N. 13. 
IT SHOULD BE STRESSED THAT IF SUCH EMPLOYMENT IS UNAVAILABLE THE
GOVERNMENT MAY TRULY BE PURSUING A PARTIALLY COUNTER-PRODUCTIVE POLICY
BY FORCING THE EMPLOYEE ONTO THE WELFARE ROLLS. 

FINALLY, BY PROVIDING A PERTERMINATION HEARING, THE GOVERNMENT RUNS
NO RISK THROUGH PROVIDING NOTICE, SINCE THE EMPLOYEE CANNOT RUN AWAY
WITH HIS JOB, AND CAN SURELY MINIMUZE ITS RISK OF UNCOMPENSATED LOSS Y
ELIMINATING THE PROVISION FOR PERSONAL APPEARANCES AND SETTING EARLY
DATES FOR FILING WRITTEN OBJECTION.  ALTOGETHER DIFFERENT
CONSIDERATIONS AS TO NOTICE MIGHT BE APPLICABLE, IF THE EMPLOYEE WOULD
BE LIKELY TO DO DAMAGE TO THE GOVERNMENT IF PROVIDED WITH SUCH NOTICE. 
SEE 5 CFR 752.202 (C)(2) (1972), PROVIDING THAT AN AGENCY MAY DISPENSE
WITH THE 30-DAY NOTICE REQUIREMENT "(WHEN THERE IS REASONABLE CAUSE TO
BELIEVE AN EMPLOYEE IS GUILTY OF A CRIME FOR WHICH A SENTENCE OF
IMPRISONMENT CAN BE IMPOSED." 

PERHAPS PARTLY ON THE BASIS OF SOME OF THESE CONSTITUTIONAL
CONSIDERATIONS, CONGRESS HAS PROVIDED FOR PRETERMINATION HEARINGS. 
CERTAINLY THE DEBATE ON THE LLOYD-LA FOLLETTE ACT INDICATES THAT
CONSTITUTIONAL CONSIDERATIONS WERE PRESENT IN THE MINDS OF CONGRESSMEN
SPEAKING IN FAVOR OF THE LEGISLATION.  /11/  IN ANY EVENT, I CONCLUDE
THAT THE STATUTE AND REGULATIONS PROVISIONS TO THE EXTENT THEY REQUIRE
30 DAYS' ADVANCE NOTICE AND A RIGHT TO MAKE A WRITTEN PRESENTATION
SARISFY MINIMUM CONSTITUTIONAL REQUIREMENTS. 

        IV 

APPELLEE IN THIS CASE NOT ONLY ASSERTS THAT HE IS ENTITLED TO A
HEARING AT SOME TIME BEFORE HIS PROPERTY INTEREST IS FINALLY
TERMINATED, AND TO A PRETERMINATION HEARING OF SOME KIND BEFORE HIS
WAGES ARE PROVISIONALLY CUT OFF, WHICH ARE CURRENTLY PROVIDED TO HIM,
BUT ALSO ARGUES THAT HE MUST BE FURNISHED CERTAIN PROCEDURES AT HIS
PRELIMINARY HEARING NOT PROVIDED BY CONGRESS: AN IMPARTIAL HEARING
EXAMINER, AN OPPORTUNITY TO PRESENT WITNESSES, AND THE RIGHT TO ENGAGE
IN CROSS-EXAMINATION.  IN OTHER WORDS, HIS CLAIM IS NOT ONLY TO A
PRETERMINATION HEARING, BUT ONE IN WHICH FULL TRIAL-TYPE PROCEDURES ARE
AVAILABLE. 

        A 

THE FACTS IN THIS CASE SHOW THAT THE REGIONAL DIRECTOR, VERDUIN, WHO
CHARGED APPELLEE KENNEDY WITH MAKING SLANDEROUS STATEMENTS ABOUT HIM AS
TO AN ALLEGED BRIBE OFFER, ALSO RULED IN THE PRELIMINARY HEARING THAT
KENNEDY SHOULD BE TERMINATED. 

THE "NOTIFICATION OF PROPOSED ADVERSE ACTION," SIGNED BY VERDUIN,
CHARGED THAT APPELLEE HAD "MADE STATEMENTS KNOWINGLY AGAINST OFFICIALS
OF THIS AGENCY WHICH COULD HARM OR DESTROY THEIR AUTHORITY, OFFICIAL
STANDING OR REPUTATION" AND THAT APPELLEE HAD ENGAGED "IN A COURSE OF
CONDUCT INTENDED TO PRODUCE PUBLIC NOTORIETY AND CONCLUSIONS ON THE
PART OF THE PUBLIC, WITHOUT ANY PROOF WHATSOVER AND IN RECKLESS
DISREGARD OF THE ACTUAL FACTS KNOWN TO YOU (APPELLEE), OR REASONABLY
DISCOVERABLE BY YOU (APPELLEE), THAT OFFICIALS OF THIS AGENCY HAD
COMMITTED OR ATTEMPTED TO COMMIT ACTS OF MISFEASANCE, NONFEASANCE AND
MALFEASANCE."  FACTS WERE MARSHALED TO SUPPORT THE CHARGES THAT
APPELLEE HAD SPOKEN AT A UNION MEETING "TO THE EFFECT THA (VERDUIN AND
HIS ASSISTANT) HAD ATTEMPTED TO BRIBE MR. JAMES WHITE EAGLE STEWART BY
OFFERING HIM A $100,000 GRANT OF OEO FUNDS IF HE WOULD SIGN A STATEMENT
AGAINST YOU (APPELLEE) AND ANOTHER EMPLOYEE," AND THAT APPELLEE HAD
SPOKEN OF THE BRIBE TO A NEWSPAPER REPORTER AND TO A RADIO STATION. 
AFTER APPELLEE HAD RECEIVED THIS NOTICE, HE MADE NO RESPONSE TO THE
MERITS OF THE CHARGES, BUT INSTEAD WROTE TO VERDUIN REQUESTING THAT HE
WAS ENTITLED TO CERTAIN PROCEDURAL RIGHTS AT THE HEARING, ONE OF WHICH
WAS TO HAVE "A GENUINELY IMPARTIAL HEARING OFFICER," THUS FURNISHING
VERDUIN WITH THE OPPORTUNITY TO RECUSE HIMSELF AND PROVIDE AN
ALTERNATIVE HEARING EXAMINER.  THIS WAS NOT DONE. 

IN CONSIDERING APPELLEE'S CLAIM TO HAVE AN IMPARTIAL HEARING
EXAMINER, WE MIGHT START WITH A FIRST PRINCIPLE:  "(NO MAN SHALL BE A
JUDGE IN HIS OWN CAUSE."  BONHAM'S CASE, 8 CO. 114A, 118A, 77 ENG. REP.
646, 652 (1610).  VERDUIN'S REPUTATION WAS CERTAINLY AT STAKE IN THE
CHARGES BROUGHT AGAINST KENNEDY.  INDEED, THE HEART OF THE CHARGE WAS
THAT KENNEDY HAD SPOKEN OF VERDUIN IN RECKLESS DISREGARD OF THE TRUTH. 
THAT VERDUIN ALMOST SEEMED TO BE STARTING A LIBEL COMPLAINT AGAINST
KENNEDY UNDER NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964),
DRAMATIZES THE PERSONAL CONFLICT WHICH PRECIPITATED THE PROPOSED
TERMINATION. 

OUR DECISIONS HAVE STRESSED, IN SITUATIONS ANALOGOUS TO THE ONE
FACED HERE, THAT THE RIGHT TO AN IMPARTIAL DECISION-MAKER IS REQUIRED
BY DUE PROCESS.  THE COURT HAS HELD THAT THOSE WITH A SUBSTANTIAL
PECUNIARY INTEREST IN LEGAL PROCEEDINGS SHOULD NOT ADJUDICATE THESE
DISPUTES.  TUMEY V. OHIO, 273 U.S. 510 (1927); WARD V. VILLAGE OF
MONROEVILLE, 409 U.S. 57 (1972).  THE COURT HAS OBSERVED THAT
DISQUALIFICATION BECAUSE OF INTEREST HAS BEEN EXTENDED WITH EQUAL FORCE
TO ADMINISTRATIVE ADJUDICATIONS.  GIBSON V. BERRYHILL, 411 U.S. 564,
579 (1973). 

IN THE CONTEXT OF CONTEMPT BEFORE A JUDGE, WHERE A JUDGE TRYING A
DEFENDANT IS THE OBJECT OF "EFFORTS TO DENOUNCE, INSULT, AND SLANDER
THE COURT," AND "MARKED PERSONAL FEELINGS WERE PRESENT ON BOTH SIDES,"
THE COURT HAS HELD THAT CRIMINAL CONTEMPT PROCEEDINGS HOULD BE HELD
BEFORE A JUDGE OTHER THAN THE ONE REVILED BY THE CONTEMNOR.  MAYBERRY
V. PENNSLYVANIA, 400 U.S. 455, 462, 464 (1971).  SEE IN RE OLIVER, 333
U.S. 257 (1948); CF. IN RE MURCHISON, 349 U.S. 133 (1955). 

WE HAVE ALSO STRESSED THE NEED FOR IMPARTIALITY IN ADMINISTRATIVE
PROCEEDINGS, STATING IN GOLDBERG V. KELLY, SUPRA, THAT AN "IMPARTIAL
DECISION MAKER IS ESSENTIAL,"  397 U.S., AT 271.  (CITATIONS OMITTED.) 
TO THE SAME EFFECT WAS MORRISSEY V. BREWER, 408 U.S. 471, 485 - 486
(1972), INVOLVING REVOCATION OF PAROLE.  IN BOTH GOLDBERG AND
MORRISSEY, THIS REQUIREMENT WAS HELD TO APPLY TO PRETERMINATION
HEARINGS.  /12/ 

IT MAY BE TRUE THAT ANY HEARING WITHOUT AN IMPARTIAL HEARING OFFICER
WILL REFLECT THE BIAS OF THE ADJUDICATOR.  THE INTEREST OF THE
GOVERNMENT IN NOT SO PROVIDING WOULD APPEAR SLIM.  GIVEN THE
PRETERMINATION HEARING, IT WOULD SEEM IN THE GOVERNMENT'S INTEREST TO
AVOID LENGTHY APPEALS OCCASIONED BY BIASED INITIAL JUDGMENTS, AND IT
WOULD BE REASONABLE TO EXPECT MORE CORRECT DECISIONS AT THE INITIAL
STAGE IF THE HEARING OFFICER IS IMPARTIAL, AND AT LITTLE COST. 

MY VIEW IS A NARROWER ONE, HOWEVER.  FAIRNESS AND ACCURACY ARE NOT
ALWAYS THREATENED SIMPLY BECAUSE THE HEARING EXAMINER IS THE SUPERVISOR
OF AN EMPLOYEE, OR, AS IN THIS CASE, THE REGIONAL DIRECTOR OVER MANY
EMPLOYEES, INCLUDING APPELLEE.  BUT HERE THE HEARING OFFICIAL WAS THE
OBJECT OF SLANDER THAT WAS THE BASIS FOR THE EMPLOYEE'S PROPOSED
DISCHARGE.  SEE MAYBERRY V. PENNSYLVANIA, SUPRA.  IN RULING THAT THE
EMPLOYEE WAS TO BE TERMINATED, THE HEARING EXAMINER'S OWN REPUTATION,
AS WELL AS THE EFFICIENCY OF THE SERVICE, WAS AT STAKE; AND ALTHOUGH
MR. VERDUIN MAY HAVE SUCCEEDED, IN FACT, IN DISASSOCIATING HIS OWN
PERSONAL FEELING FROM HIS DECISION AS TO THE INTERESTS OF OEO, THE RISK
AND THE APPEARANCE THAT THIS WAS NOT THE CASE WERE TOO GREAT TO
TOLERATE.  IN SUCH SITUATIONS THE OFFICIAL NORMALLY CHARGED WITH THE
DISCHARGE DECISION NEED ONLY RECUSE AND TRANSFER THE FILE TO A PERSON
QUALIFIED TO MAKE THE INITIAL DECISION.  WE NEED NOT HOLD THAT THE
LLOYD-LA FOLLETTE ACT IS UNCONSTITUTIONAL FOR ITS LACK OF PROVISION OF
AN IMPARTIAL HEARING EXAMINER.  CONGRESS IS SILENT ON THE MATTER.  WE
WOULD RATHER ASSUME, BECAUSE OF THE CONSTITUTIONAL PROBLEMS IN NOT SO
PROVIDING, THAT, IF FACED WITH THE QUESTION (AT LEAST ON THE FACTS OF
THIS CASE) CONGRESS WOULD HAVE SO PROVIDED.  VOLKSWAGENWERK V. FMC, 390
U.S. 261, 272 (1968).  "WHERE ADMINISTRATIVE ACTION HAS RAISED SERIOUS
CONSTITUTIONAL PROBLEMS, THE COURT HAS ASSUMED THAT CONGRESS OR THE
PRESIDENT INTENDED TO AFFORD THOSE AFFECTED BY THE ACTION THE
TRADITIONAL SAFEGUARDS OF DUE PROCESS."  GREENE V. MCELROY, 360 U.S.,
AT 507 (CITATIONS OMITTED).  /13/

        B 

APPELLEE ALSO CLAIMS A RIGHT TO A FULL TRIAL-TYPE HEARING AT THE
PRETERMINATION STAGE, PARTICULARLY ASSERTING THAT HE IS DENIED DUE
PROCESS, IF NOT GIVEN THE OPPORTUNITY TO PRESENT AND CROSS-EXAMINE
WITNESSES. 

WHILE FULLY REALIZING THE VALUE OF A FULL TRIAL-TYPE HEARING AS A
METHOD FOR ULTIMATE RESOLUTION OF THE FACTS, SEE ID., AT 496 - 497, THE
PRETERMINATION HEARING IS NOT HELD FOR THE PURPOSE OF MAKING SUCH AN
ULTIMATE DETERMINATION.  THIS IS PROVIDED FOR THROUGH THE APPEAL
PROCEDURE WHERE THE EMPLOYEE IS AFFORDED THE PROCEDURAL RIGHTS HE NOW
SEEKS AT AN EARLIER STAGE OF THE PROCEEDINGS.  THE FUNCTION OF THE
PRETERMINATION HEARING IS, AND NO MORE IS REQUIRED BY DUE PROCESS, TO
MAKE A PROBABLE-CAUSE DETERMINATION AS TO WHETHER THE CHARGES BROUGHT
AGAINST THE EMPLOYEE ARE OR ARE NOT TRUE.  WHERE THE COURT HAS HELD
THAT PRETERMINATION HEARINGS ARE REQUIRED, IN PAST DECISIONS, IT HAS
SPOKEN SPARINGLY OF THE PROCEDURES TO BE REQUIRED.  SNIADACH WAS SILENT
ON THE MATTER, AND FUENTES MERELY REQUIRED SOMETHING MORE THAN AN EX
PARTE PROCEEDING BEFORE A COURT CLERK.  IN BELL, THE COURT HELD THAT
THE HEARING MUST INVOLVE A PROBABLE-CAUSE DETERMINATION AS TO THE FAULT
OF THE LICENSEE, AND "NEED NOT TAKE THE FORM OF A FULL ADJUDICATION OF
THE QUESTION OF LIABILITY," REALIZING THAT " A PROCEDURAL RULE THAT MAY
SATISFY DUE PROCESS IN ONE CONTEXT MAY NOT NECESSARILY SATISFY DUE
PROCESS IN EVERY CASE."  402 U.S., AT 540.  THIS, "PROCEDURAL DUE
PROCESS (WAS TO) BE SATISFIED BY AN INQUIRY LIMITED TO THE
DETERMINATION WHETHER THERE IS A REASONABLE POSSIBILITY OF JUDGMENTS IN
THE AMOUNTS CLAIMED BEING RENDERED AGAINST THE LICENSEE."  IBID.  WE
THINK THE CLEAR IMPLICATION OF BELL TO BE THAT "FULL ADJUDICATION,"
INCLUDING PRESENTATION OF WITNESSES AND CROSS-EXAMINATION, NEED NOT BE
PROVIDED IN EVERY CASE WHERE A PRETERMINATION HEARING OF SOME KIND IS
REQUIRED BY DUE PROCESS OR PROVIDED BY THE STATUTE. 

IN GOLDBERG V. KELLY, THE COURT STRUCK A DIFFERENT NOTE ON
PROCEDURES.  ALTHOUGH STATING THAT THE ONLY FUNCTION OF THE
PRETERMINATION HEARING WAS "TO PRODUCE AN INITIAL DETERMINATION OF THE
VALIDITY OF THE WELFARE DEPARTMENT'S GROUNDS FOR DISCONTINUANCE OF
PAYMENTS," AND SEEMINGLY ADOPTING A PROBABLE-CAUSE STANDARD, THE COURT
REQUIRED CROSS-EXAMINATION OF WITNESSES RELIED UPON BY THE DEPARTMENT. 
THE COURT WAS CAREFUL TO OBSERVE, HOWEVER, THAT THESE PROCEDURAL RULES
WERE "TAILORED TO THE CAPACITITES AND CIRCUMSTANCES OF THOSE WHO ARE TO
BE HEARD."  397 U.S., AT 267, 268 - 269.  THE DECISION TO CUT OFF AFDC
WELFARE PAYMENTS LEAVES THE RECIPIENT LITERALLY WITHOUT MEANS TO
SURVIVE OR SUPPORT A FAMILY.  WHILE THIS LEVEL OF DEPRIVATION MAY NOT
BE INSISTED UPON AS A NECESSARY CONDITION FOR REQUIRING SOME KIND OF
PRETERMINATION HEARING, IT MAY WELL BE DECISIVE IN REQUIRING THE
GOVERNMENT TO PROVIDE SPECIFIC PROCEDURES AT THE PRETERMINATION STAGE. 
THE GREATER THE LEVEL OF DEPRIVATION WHICH MAY FLOW FROM A DECISION,
THE LESS ONE MAY TOLERATE THE RISK OF A MISTAKEN DECISION, CF.
MORRISSEY V. BREWER, SUPRA, AND THUS THE COURT IN GOLDBERG, WHILE
MAINTAINING THAT THE PRETERMINATION HEARING WAS IN THE NATURE OF A
PROBABLE-CAUSE DETERMINATION, WAS LESS WILLING TO ALLOW A MARGIN OF
ERROR AS TO PROBABLE CAUSE.  RULES OF PROCEDURE ARE OFTERN SHAPED BY
THE RISK OF MAKING AN ERRONEOUS DETERMINATION.  SEE IN RE WINSHIP, 397
U.S. 358, 368 (1970) (HARLAN, J., CONCURRING.)  INDEED, ALL THAT WAS
SPECIFICALLY NOT REQUIRED IN GOLDBERG WAS A COMPLETE RECORD AND A
COMPREHENSIVE OPINION.  397 U.S., AT 267. 

IN THIS CASE, THE EMPLOYEE IS NOT TOTALLY WITHOUT PROSPECT FOR SOME
FORM OF SUPPORT DURING THE PERIOD BETWEEN THE PRETERMINATION AND FINAL
HEARING ON APPEAL, THOUGH IT MAY NOT BE EQUIVALENT IN EARINGS OR TENURE
TO HIS PRIOR COMPETITIVE SERVICE POSTITION.  ALTHOUGH THE EMPLOYEE MAY
NOT BE ENTITLED TO UNEMPLOYMENT COMPENSATION, SEE CHRISTIAN V. NEW
YORK, 414 U.S. 614 (1974), SINCE HE HAS BEEN TERMINATED FOR CAUSE HE
MAY GET SOME FORM OF EMPLOYMENT IN THE PRIVATE SECTOR, AND, IF
NECESSARY, MAY DRAW ON THE WELFARE SYSTEM IN THE INTERIM.  GIVEN THIS
BASIC FLOOR OF NEED, WHICH THE SYSTEM PROVIDES, WE SHOULD NOT HOLD THAT
PROCEDURAL DUE PROCESS IS SO INFLEXIBLE AS TO REQUIRE THE COURT TO HOLD
THAT THE PROCEDURAL PROTECTIONS, OF A WRITTEN STATEMENT AND ORAL
PRESENTATION TO AN IMPARTIAL HEARING EXAMINER PROVIDED BY REGULATION,
ARE INSUFFICIENT.  THE COURT STATED IN RICHARDSON V. WRIGHT, 405 U.S.
208 (1972), THAT NEW REGULATIONS OF THE DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE REQUIRED THAT SOCIAL SECURITY DISABILITY
PAYMENTS WERE NOT TO BE SUSPENDED IN A PRETERMINATION HEARING WITHOUT
"NOTICE OF A PROPOSED SUSPENSION AND THE REASONS THEREFOR, PLUS AN
OPPORTUNITY TO SUBMIT REBUTTAL EVIDENCE,"  BUT COULD BE WITHOUT AN ORAL
PRESENTATION, SINCE "(IN THE CONTEXT OF A COMPREHENSIVE COMPLEX
ADMINISTRATIVE PROGRAM, THE ADMINISTRATIVE PROCESS MUST HAVE A
REASONABLE OPPORTUNITY TO EVOLVE PROCIDURES TO MEET NEEDS AS THEY
ARISE."  CF. TORRES V. NEW YORK STATE DEPARTMENT OF LABOR, 333 F. SUPP.
341 (SDNY 1971), AFF'D, 405 U.S. 949 (1972).  NECESSARILY, TO SOME
EXTENT, THE COURT MUST SHARE WITH CONGRESS, IN AN AREA WHERE ONE IS
CALLED UPON TO JUDGE THE EFFICACY OF PARTICULAR PROCEDURES, A ROLE IN
DEFINING CONSTITUTIONAL REQUIREMENTS, AND CONGRESS EXPLICITLY LEFT IT
TO THE DISCRETION OF THE AGENCY AS TO WHETHER SUCH PROCEDURES WERE
REQUIRED.  I WOULD NOT UPSET THAT JUDGMENT IN THIS CASE. 

IN ACCORD WITH THESE VIEWS, I WOULD AFFIRM THE JUDGMENT OF THE THREE
JUDGE COURT, ORDERING REINSTATEMENT AND BACKPAY, DUE OT THE FAILURE TO
PROVIDE AN IMPARTIAL HEARING OFFICER AT THE PRETERMINATION HEARING.  I
WOULD REVERSE THAT PART OF THED COURT'S ORDER ENJOINTING THE
APPLICATION OF THE STATUTE ON FIRST AMENDMENT VAGUENESS AND OVERBREADTH
GROUNDS. 

/1/  THE FULL TEXT OF THE ACT'S PERTINENT PROVISIONS PROVIDES: 

"(A) AN INDIVIDUAL IN THE COMPETITIVE SERVICE MAY BE REMOVED OR
SUSPENDED WITHOUT PAY ONLY FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENY
OF THE SERVICE 

"(B) AN INDIVIDUAL IN THE COMPETITIVE SERVICE WHOSE REMOVAL OR
SUSPENSION WITHOUT PAY IS SOUGHT IS ENTITLED TO REASONS IN WRITING AND
TO--, 

"(1) NOTICE OF THE ACTION SOUGHT AND OF ANY CHARGES PREFERRED
AGAINST HIM; 

"(3) A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO THE CHARGES,
WITH AFFIDAVITS; AND 

"(4) A WRITTEN DECISION ON THE ANSWER AT THE EARLIEST PRACTICABLE
DATE.  "EXAMINATION OF WITNESSES, TRIAL, OR HEARING IS NOT REQUIRED BUT
MAY BE PROVIDED IN THE DISCRETION OF THE INDIVIDUAL DIRECTING THE
REMOVAL OR SUSPENSION WITHOUT PAY.  COPIES OF THE CHARGES, THE NOTICE
OF HEARING, THE ANSWER, THE REASONS FOR AND THE ORDER OF REMOVAL OR
SUSPENSION WITHOUT PAY, AND ALSO THE REASONS FOR REDUCTION IN GRADE OR
PAY, SHALL BE MADE A PART OF THE RECORDS OF THE EMPLOYING AGENCY, AND
ON REQUEST, SHALL BE FURNISHED TO THE INDIVIDUAL AFFECTED AND TO THE
CIVIL SERVICE COMMISSION. 

"(C) THIS SECTION APPLIES TO A PREFERENCE ELIGIBLE EMPLOYEE AS
DEFINED BY SECTION 7511 OF THIS TITLE ONLY IF HE SO ELECTS.  THIS
UNDER SECTION 7532 OF THIS TITLE." 

/2/  THE REGULATION OF THE CIVIL SERVICE COMMISSION AS TO
"PROSCRIBED ACTIONS," 5 CFR 735.201A, PROVIDES: 

"AN EMPLOYEE SHALL AVOID ANY ACTION, WHETHER OR NOT SPECIFICALLY
PROHIBITED BY THIS SUBPART, WHICH MIGHT RESULT IN, OR CREATE THE
APPEARANCE OF: 

"(A) USING PUBLIC OFFICE FOR PRIVATE GAIN; 

"(B) GIVING PREFERENTIAL TREATMENT TO ANY PERSON; 

"(C) IMPEDING GOVERNMENT EFFICIENCY OR ECONOMY 

"(D) LOSING COMPLETE INDEPENDENCE OR IMPARTIALITY; 

"(E) MAKING A GOVERNMENT DECISION OUTSIDE OFFICIAL CHANNELS; OR 

"(F) AFFECTING ADVERSELY THE CONFIDENCE OF THE PUBLIC IN THE
INTEGRITY OF THE GOVERNMENT."  THE REGULATIONS, 5 CFR 735.209 (1972),
ALSO PROVIDE: 

"AN EMPLOYEE SHALL NOT ENGAGE IN CRIMINAL, INFAMOUS, DISHONEST,
IMMORAL, OR NOTORIOUSLY DISGRACEFUL CONDUCT, OR OTHER CONDUCT
PREJUICIAL TO THE GOVERNMENT." 

/3/  THE CIVIL SERVICE PROCEDURAL REGULATIONS, 5 CFR 752.202,
PROVIDE IN RELEVANT PART: 

"(A) NOTICE OF PROPOSED ADVERSE ACTION.  (1) EXCEPT AS PROVIDED IN
PARAGRAPH (C) OF THIS SECTION, AN EMPLOYEE AGAINST WHOM ADVERSE ACTION
IS SOUGHT IS ENTITLED TO AT LEAST 30 FULL DAYS' ADVANCE WRITTEN NOTICE
STATING ANY AND ALL REASONS, SPECIFICALLY AND IN DETAIL, FOR THE
PROPOSED ACTION. 

"(2) SUBJECT TO THE PROVISIONS OF SUBPARAGRAPH (3) OF THIS
PARAGRAPH, THE MATERIAL ON WHICH THE NOTICE IS BASEED AND WHICH IS
RELIED ON TO SUPPORT THE REASONS IN THAT NOTICE, INCLUDING STATEMENTS
OF WITNESSES, DOCUMENTS, AND INVESTIGATIVE REPORTS OR EXTRACTS
THEREFROM, SHALL BE ASSEMBLED AND MADE AVAILABLE TO THE EMPLOYEE FOR
HIS REVIEW.  THE NOTICE SHALL INFORM THE EMPLOYEE WHERE HE MAY REVIEW
THAT MATERIAL. 

"(3) MATERIAL WHICH CANNOT BE DISCLOSED TO THE EMPLOYEE, OR TO HIS
DESIGNATED PHYSICIAN UNDER 294.401 OF THIS CHAPTER, MAY NOT BE USED BY
AN AGENCY TO SUPPORT THE REASONS IN THE NOTICE.     "(B) EMPLOYEE'S
ANSWER.  EXCEPT AS PROVIDED IN PARAGRAPH (C) OF THIS SECTION, AN
EMPLOYEE IS ENTITLED TO A REASONABLE TIME FOR ANSWERING A NOTICE OF
PROPOSED ADVERSE ACTION AND FOR FURNISHING AFFIDAVITS IN SUPPORT OF HIS
ANSWER.  THE TIME TO BE ALLOWED DEPENDS ON THE FACTS AND CIRCUMSTANCES
OF THE CASE, AND SHALL BE SUFFICIENT TO AFFORD THE EMPLOYEE AMPLE
OPPORTUNITY TO REVIEW THE MATERIAL RELIED ON BY THE AGENCY TO SUPPORT
THE REASONS IN THE NOTICE AND TO PREPARE AN ANSWER AND SECURE
AFFIDAVITS.  THE AGENCY SHALL PROVIDE THE EMPLOYEE A REASONABLE AMOUNT
OF OFFICIAL TIME FOR THESE PURPOSES IF HE IS OTHERWISE IN AN ACTIVE
DUTY STATUS.  IF THE EMPLOYEE ANSWERS, THE AGENCY SHALL CONSIDER HIS
ANSWER IN REACHING ITS DECISION.  THE EMPLOYEE IS ENTITLED TO ANSWER
PERSONALLY, OR IN WRITING, OR BOTH PERSONALLY AND IN WRITING.  THE
RIGHT TO ANSWER PERSONALLY INCLUDES THE RIGHT TO ANSWER ORALLY IN
PERSON BY BEING GIVEN A REASONABLE OPPORTUNITY TO MAKE ANY
REPRESENTATIONS WHICH THE EMPLOYEE BELIEVES MIGHT SWAY THE FINAL
DECISION ON HIS CASE, BUT DOES NOT INCLUDE THE RIGHT TO A TRIAL OR
FORMAL HEARING WITH EXAMINATION OF WITNESSES.  WHEN THE EMPLOYEE
REQUESTS AN OPPORTUNITY TO ANSWER PERSONALLY, THE AGENCY SHALL MAKE A
REPRESENTATIVE OR REPRESENTATIVES AVAILABLE TO HEAR HIS ANSWER.  THE
REPRESENTATIVE OR REPRESENTATIVES ABAILABLE TO HEAR HIS ANSWER.  THE
REPRESENTATIVE OR REPRESENTATIVES DESIGNATED TO HEAR THE ANSWER SHALL
BE PERSONS WHO HAVE AUTHORITY EITHER TO MAKE A FINAL DECISION ON THE
PROPOSED ADVERSE ACTION OR TO RECOMMEND WHAT FINAL DECISION SHOULD BE
MADE. 

.  .  .  .  . 

"(F) NOTICE OF ADVERSE DECISION.  THE EMPLOYEE IS ENTITLED TO NOTICE
OF THE AGENCY'S DECISION AT THE EARLIEST PRACTICABLE DATE.  THE AGENCY
SHALL DELIVER THE NOTICE OF DECISION TO THE EMPLOYEE AT OR BEFORE THE
TIME THE ACTION WILL BE MADE EFFECTIVE.  THE NOTICE SHALL BE IN
WRITING, BE DATED, AND INFORM THE EMPLOYEE: 

"(1) WHICH OF THE REASONS IN THE NOTICE OF PROPOSED ADVERSE ACTION
HAVE BEEN FOUND SUSTAINED AND WHICH HAVE BEEN FOUND NOT SUSTAINED . . .
." 

/4/  THE VETERANS' PREFERENCE ACT AUTHORIZES CIVIL SERVICE
COMMISSION APPEALS FROM ADVERSE AGENCY DECISIONS.  SEE 5 U.S.C. 7701. 
THE ACT ITSELF APPLIES ONLY TO VETERANS OF MILITARY SERVICE, 5 U.S.C.,
2108, 7511, BUT EXECUTIVE ORDER NO. 11491, PRINTED IN NOTE FOLLOWING 5
U.S.C. 7301 EXTENDS THE ACT'S PROTECTIONS TO ALL NONPREFERENCE
EMPLOYEES IN THE CLASSIFIED SERVICE. 

/5/  APPELLEE'S RESPONSE STATED: 

"THE CHARGES AND PROCEEDINGS BROUGHT AGAINST MR. KENNEDY ARE INVALID
AND, IN FACT, UNLAWFUL FOR THE FOLLOWING TWO REASONS AMONG OTHERS: 

"FIRST, MR. KENNEDY IS ENTITLED TO A FAIR AND IMPARTIAL HEARING
PRIOR TO ANY ADVERSE ACTION BEING TAKEN AGAINST HIM.  THIS MEANS A
PROCEEDING WHERE THERE IS A GENUINELY IMPARTIAL HEARING OFFICER, A
PROCEEDING WHERE THERE IS AN OPPORTUNITY TO OFFER WITNESSES AND
CONFRONT AND CROSS EXAMINE THOSE FURNISHING EVIDENCE AGAINST HIM, A
PROCEEDING WHERE HE WILL HAVE AN OPPORTUNITY TO RESPOND TO ALL EVIDENCE
OFFERED AGAINST HIM, A PROCEEDING WHERE A WRITTEN RECORD IS MADE OF ALL
EVIDENCE, TESTIMONY AND ARGUMENT, A PROCEEDING WHERE THE DECISION WILL
BE BASED EXCLUSIVELY ON THE RECORD, A PROCEEDING WHERE THE DECISION
WILL CONTAIN FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH REGARD TO ALL
CONTROVERTED ISSUES, TOGETHER WITH AN ANALYSIS INDICATING THE MANNER IN
WHICH THE CONTROVERSIES WERE RESOLVED. 

"THE PRESENT ADVERSE ACTION PROCEDURE FAILS IN SUBSTANTIAL WAYS TO
PROVIDE ALL OF THESE REDIMENTARY ELEMENTS REQUIRED FOR A DUE PROCESS
HEARING.  IT THEREFORE FAILS TO MEET THE REQUIREMENTS OF DUE PROCESS
SECURED BY THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
AND IS HENCE, INVALID, NULL AND VOID. 

"SECOND, THE CHARGES BROUGHT AGAINST MR. KENNEDY ARE FACIALLY
INSUFFICIENT AND ILLEGAL.  AS THE ADVERSE ACTION MAKES CLEAR, MR.
KENNEDY IS BEING PUNISHED FOR HIS CONVERSATIONS (INACCURATELY SET FORTH
IN THE ADVERSE ACTION) WITH UNION MEMBERS AND THE PUBLIC.  SINCE THE
FIRST AMENDMENT PROTECTS SUCH CONVERSATIONS THESE ALLEGATIONS ARE
TOTALLY WITHOUT MERIT."  APP. 62. 

/6/  MY VIEWS AS TO THE REQUIREMENTS OF DUE PROCESS WHERE PROPERTY
INTERESTS ARE AT STAKE DOES NOT DEAL WITH THE ENTIRELY SEPARATE MATTER
AND REQUIREMENTS OF DUE PROCESS WHEN A PERSON IS DEPRIVED OF LIBERTY. 

/7/  BAILEY V. RICHARDSON, 86 U.S. APP. D.C. 248, 182 F.2D 46
(1950), AFF'D BY AN EQUALLY DIVIDED COURT, 341 U.S. 918 (1951), IS NOT
CONTROLLING.  "THE BASIS OF THIS HOLDING HAS BEEN THOROUGHLY UNDERMINED
IN THE ENSUING YEARS" WITH THE REJECTION OF THE "RIGHT"-"PRIVILEGE"
DISTINCTION.  BOARD OF REGENTS V. ROTH, 408 U.S. 564, 571 N. 9 (1972). 

/8/  WISCONSIN V. CONSTANTINEAU, 400 U.S. 433 (1971), IS NOT
PROPERLY PART OF THIS QUARTET OF CASES, SINCE NO HEARING WAS APPARENTLY
EVER PROVIDED TO CHALLENGE THE POSTING OF ONE'S NAME AS AN EXCESSIVE
DRINKER. 

/9/  SEE GENERALLY FREEDMAN, SUMMARY ACTION BY ADMINISTRATIVE
AGENCIES, 40 U. CHI.  REV.  1 (1972). 

/10/  SEE HANDLER, JUSTICE FOR THE WELFARE RECIPIENT: FAIR HEARINGS
IN AFDC--THE WISCONSIN EXPERIENCE, 43 SOC. SERV. REV. 12, 22 (1969). 

/11/  CONGRESSMAN CALDER STATED THAT THE ACT WOULD "GIVE ASSURANCE
AND CONFIDENCE TO THE EMPLOYEES THAT THEY WILL AT LEAST GET A SQUARE
DEAL AND WILL NOT PERMIT OF SUPERVISORY OR EXECUTIVE OFFICERS FILING
CHARGES OF ONE KIND AGAINST AN EMPLOYEE AND HAVING HIM REMOVED FROM THE
SERVICE OR REDUCED IN SALARY ON EVIDENCE SUBMITTED ON MATTERS ENTIRELY
FOREIGN TO THE ORIGINAL CHARGE THAT THE EMPLOYEE HAS ANSWERED IN
WRITING."  48 CONG. REC. 4654 (1912). 

CONGRESSMAN KONOP STATED: 

"ANY MAN IN PUBLIC SERVICE SHOULD HAVE A RIGHT AS A CITIZEN TO KNOW
WHY HE IS DISCHARGED FROM PUBLIC DUTY, AND AS A CITIZEN SHOULD
CERTAINLY HAVE A CHANCE TO BE HEARD."  ID., AT 5207. 

/12/  IN PICKERING V. BOARD OF EDUCATION, 391 U.S. 563, 579 N. 2
(1968), WHERE THE COURT SET ASIDE A DISCHARGE BY A BOARD OF EDUCATION
OF A TEACHER FOR WRITING A LETTER TO A NEWSPAPER ATTACKING THE BOARD,
THE TRIER OF FACT, THE BOARD, WAS THE SAME BODY THAT WAS THE OBJECT OF
ACCUSATIONS IN THE LETTER.  ALTHOUGH THE COURT DID NOT RULE ON THE DUE
PROCESS QUESTION, SINCE IT WAS FIRST RAISED HERE, IT OBSERVED THAT "WE
DO NOT PROPOSE TO BLIND OURSELVES TO THE OBVIOUS DEFECTS IN THE FACT
FINDING PROCESS OCCASIONED BY THE BOARD'S MULTIPLE FUNCTIONING VIS-A
VIS APPELLANT," CITING TUMEY V. OHIO, 273 U.S. 510 (1927), AND IN RE
MURCHISON, 34 U.S. 133 (1955). 

/13/  WE FURTHER NOTE THAT APPELLANTS SUGGEST IN THEIR BRIEF TO THIS
COURT THAT "THE ACT AND REGULATIONS, FAIRLY CONSTURED, REQUIRE THE
DETERMINATION OF CAUSE TO BE MADE WITHOUT BIAS."  BRIEF FOR APPELLANTS
24 N. 12. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE FEDERAL BUREAUCRACY CONTROLS A VAST CONGLOMERATE OF PEOPLE WHO
WALK MORE AND MORE SUBMISSIVELY TO THE DICTATES OF THEIR SUPERIORS. 
OUR FEDERAL EMPLOYEES HAVE LOST MANY IMPORTANT POLITICAL RIGHTS.  CSC
V. LETTER CARRIERS, 413 U.S. 548, HELD THAT THEY COULD BE BARRED FROM
TAKING "AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL
CAMPAIGNS," A RESTRICTION THAT SOME OF US THOUGHT TO BE
UNCONSTITUTIONAL, ID., AT 595 ET SEQ. (DOUGLAS J., DISSENTING). 
TODAY'S DECISION DEPRIVES THEM OF OTHER IMPORTANT FIRST AMENDMENT
RIGHTS. 

HERETOFORE, AS MY BROTHER MARSHALL HAS SHOWN, WE HAVE INSISTED THAT
BEFORE A VITAL STAKE OF THE INDIVIDUAL IN SOCIETY IS DESTROYED BY
GOVERNEMENT HE BE GIVEN A HEARING ON THE MERITS OF THE GOVERNMENT'S
CLAIM.  AMONG THESE PERSONAL AND VITAL STAKES ARE WELFARE BENEFITS,
GOLDBERG V. KELLY, 397 U.S. 254; THE WEEKLY WAGE OF A WORKER, SNIADACH
V. FAMILY FINANCE CORP., 395 U.S. 337; A PERSON'S DRIVER'S LICENSE,
BELL V. BURSON, 402 U.S. 535; REPOSSESSION OF HOUSEHOLD GOODS, FUENTES
V. SHEVIN, 407 U.S. 67; THE POSITION OF A TENURED PROFESSOR IN A STATE
EDUCATIONAL INSTITUTION, BOARD OF REGENTS V. ROTH, 408 U.S. 564;
REVOCATION OF PAROLE, MORRISSEY V. BREWER, 408 U.S. 471. 

THERE IS MORE THAN EMPLOYMENT AND A JOB AT ISSUE IN THIS CASE.  THE
STAKE OF THE FEDERAL EMPLOYEE IS NOT ONLY IN A LIVELIHOOD, BUT IN HIS
RIGHT TO SPEAK GUARANTEED BY THE FIRST AMENDMENT.  HE IS CHARGED WITH
HAVING STATED THAT HIS SUPERIOR AND THE SUPERIOR'S ASSISTANT HAD
ATTEMPTED TO BRIBE A REPRESENTATIVE OF A COMMUNITY ACTION ORGANIZATION
WITH WHOM THE AGENCY (OEO) HAD DEALINGS.  HE IS CHARGED WITH HAVING
STATED THAT THOSE MEN OFFERED A BRIBE OF $100,000 IN OEO FUNDS TO THAT
ORGANIZATION IF ITS REPRESENTATIVE WOULD SIGN A STATEMENT AGAINST
APPELLEE AND ANOTHER OEO EMPLOYEE.  THIS STATEMENT IN MY VIEW WAS ON A
SUBJECT IN THE PUBLIC DOMAIN.  WE ALL KNOW MERELY BY LIVING IN
WASHINGTON, D.C., THE STORMS THAT HAVE SWEPT THROUGH THAT AGENCY AND
ITS BRANCHES.  IT HAS DEALT WITH INFLAMMATORY PROBLEMS IN THE SOLUTION
OF WHICH INFLAMMATORY UTTERANCES ARE OFTEN MADE.  I REALIZE THAT IT IS
THE TRADITION OF THE COURT TO "BALANCE" THE RIGHT OF FREE SPEECH
AGAINST OTHER GOVERNMENTAL INTERESTS AND TO SUSTAIN THE FIRST AMENDMENT
RIGHT ONLY WHEN THE COURT DEEMS THAT IN A GIVEN SITUATION ITS
IMPORTANCE OUTWEIGHS COMPETING INTEREST.  THAT WAS THE APPROACH IN
PICKERING V. BOARD OF EDUCATION, 391 U.S. 563, WHERE THE COURT DEEMED
WHAT A TEACHER SAID AGAINST THE SCHOOL BOARD WAS MORE IMPORTANT THAN
THE BOARD'S SENSIBILITIES.  THE COURT, HOWEVER, RESERVED DECISION WHERE
THE COMMENTS OF AN EMPLOYEE INVOLVED "EITHER DISCIPLINE BY IMMEDIATE
SUPERIORS OR HARMONY AMOUNG COWORKERS," ID., AT 570.  THAT IS ONE
REASON WHY MR. JUSTICE BLACK AND I CONCURRED IN THE RESULT CITING,
INTER ALIA, OUR OPINION IN TIME, INC. V. HILL, 385 U.S. 374.  MR.
JUSTICE BLACK SAID THAT THE "BALANCING" OR "WEIGHING" DOCTRINE "PLAINLY
ENCOURAGES AND ACTUALLY INVITES JUDGES TO CHOOSE FOR THEMSELVES BETWEEN
CONFLICTING VALUES, EVEN WHERE, AS IN THE FIRST AMENDMENT, THE FOUNDERS
MADE A CHOICE OF VALUES, ONE OF WHICH IS A FREE PRESS.  THOUGH THE
CONSTITUTION REQUIRES THAT JUDGES SWEAR TO OBEY AND ENFORCE IT, IT IS
NOT ALTOGETHER STRANGE THAT ALL JUDGES ARE NOT ALWAYS DEAD SET AGAINST
CONSTITUTIONAL INTERPRETATIONS THAT EXPAND THEIR POWERS, AND THAT WHEN
POWER IS ONCE CLAIMED BY SOME, OTHERS ARE LOATH TO GIVE IT UP," ID., AT
399 - 400. 

THE FACT THAT APPELLEE IN THE PRESENT CASE INVEIGHED AGAINST HIS
SUPERIOR IS IRRELEVANT.  THE MATTER ON WHICH HE SPOKE WAS IN THE PUBLIC
DOMAIN.  HIS SPEAKING MAY WELL HAVE AROUSED SUCH ANIMOSITY IN HIS
SUPERIOR AS TO DISQUALIFY HIM FROM BEING IN CHARGE OF DISCIPLINARY
PROCEEDINGS.; /1/  AND CONCEIVABLY IT COULD CAUSE DISHARMONY AMONG
WORKERS.  AND THESE CONSEQUENCES ARE QUITE ANTAGONISTIC TO THE IMAGE
WHICH AGENCIES HAVE BUILT.  THEIR DOMINANT CHARACTERISTIC IS THE
APPLICATION OF PETER'S INVERSION.  SEE L. PETER & HULL, THE PETER
PRINCIPLE 24 - 26 (BANTAM ED. 1970).  IN A FEW WORDS PETER'S INVERSION
MARKS THE INCOMPTENT CADRE'S INTEREST IN AN EMPLOYEE'S INPUT, NOT HIS
OUTPUT.  /2/ 

HIS INPUT REFLECTS HIS ATTITUDE TOWARD THE CADRE, AND TOWARD HIS
WORK.  A PLEASANT MANNER, PROMOTION OF STAFF HARMONY, SERVILITY TO THE
CADRE, AND PROMPTNESS, CIVILITY, AND SUBMISSIVENESS ARE WHAT COUNT. 
THE RESULT IS A GREAT LEVELING OF EMPLOYEES.  THEY HEAR THE BEAT OF
ONLY ONE DRUM AND MARCH TO IT.  THESE DAYS EMPLOYERS HAVE PSYCHOLOGICAL
TESTS BY WHICH THEY CAN SEPARATE THE INGENIOUS, OFFBEAT CHARACTER WHO
MAY MAKE TROUBLE FROM THE MORE SUBSERVIENT TYPE.  IT IS, OF COURSE,
NONE OF A COURT'S PROBLEM WHAT THE EMPLOYMENT POLICIES MAY BE.  /3/
BUT ONCE AN EMPLOYEE SPEAKS OUT ON A PUBLIC ISSUE AND IS PUNISHED FOR
IT, WE HAVE A JUSTICIABLE ISSUE.  APPELLEE IS IN MY VIEW BEING
PENALIZED BY THE FEDERAL GOVERNMENT FOR EXERCISING HIS RIGHT TO SPEAK
OUT.  THE EXCUSE OR PRETENSE IS AN ACT OF CONGRESS AND AN AGENCY'S
REGULATIONS PORMULGATED UNDER IT IN THE TEETH OF THE FIRST AMENDMENT:
"CONGRESS SHALL MAKE NO LAW . . ."  LOSING ONE'S JOB WITH THE FEDERAL
GOVERNMENT BECAUSE OF ONE'S DISCUSSION OF AN ISSUE IN THE PUBLIC DOMAIN
IS CERTAINLY AN ABRIDGMENT OF SPEECH. 

/1/  A JUDGE SO REVILED IS NORMALLY NOT THE ONE TO SIT IN JUDGMENT
IN A CRIMINAL CONTEMPT PROCEEDING.  MAYBERRY V. PENNSYLVANIA, 400 U.S.
455.  CF. GOLDBERG V. KELLY, 397 U.S. 254, 271. 

/2/  "THE COMPETENCE OF AN EMPLOYEE IS DETERMINED NOT BE OUTSIDERS
BUT BY HIS SUPERIOR IN THE HIERARCHY.  IF THE SUPERIOR IS STILL AT A
LEVEL OF COMPETINCE, HE MAY EVALUATE HIS SUBORDINATES IN TERMS OF THE
PERFORMANCE OF USEFUL WORK--FOR EXAMPLE, THE APPLYING OF MEDICAL
SERVICES OR INFORMATION, THE PRODUCTION OF SAUSAGES OR TABLE LEGS OR
ACHIEVING WHATEVER ARE THE STATED AIMS OF THE HIERARCHY.  THAT IS TO
SAY, HE EVALUATES OUTPUT. 

"BUT IF THE SUPERIOR HAS REACHED HIS LEVEL OF INCOMPETENCE, HE WILL
PROBABLY RATE HIS SUBORDINATED IN TERMS OF INSTITUTIONAL VALUES; HE
WILL SEE COMPETENCE AS THE BEHAVIOR THAT SUPPORTS THE RULES, RITUALS
AND FORMS OF THE STATUS QUO.  PROMPTNESS, NEATNESS, COURTESY TO
SUPERIORS, INTERNAL PAPERWORK, WILL BE HIGHLY REGARDED.  IN SHORT, SUCH
AN OFFICIAL EVALUATES INPUT.  . . 

"IN SUCH INSTANCES, INTERNAL CONSISTENCY IS VALUED MORE HIGHLY THAN
EFFICIENT SERVICE: THIS IS PETER'S INVERSION.  A PROFESSIONAL
AUTOMATION MAY ALSO BE TERMED A 'PETER'S INVERT.'  HE HAS INVERTED THE
MEANS-END RELATIONSHIP."  L. PETER & R. HULL, THE PETER PRINCIPLE 25
(BANTAM ED. 1970). 

/3/  APART FROM DISCRINIMATION BASED ON REACE, GRIGGS V. DUKE POWER
CO., 401 U.S. 424, OR ON OTHER SUSPECT CLASSIFICATIONS SUCH AS SEX. 
SEE ID., 436; 42 U.S.C. 2000E-2; FRONTIERO V. RICHARDSON, 411 U.S. 677,
682 ET SEQ. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT, BOTH IN ITS
HOLDING THAT A TENURED GOVERNMENT EMPLOYEE MUST BE AFFORDED AN
EVIDENTIARY HEARING PRIOR TO A DISMISSAL FOR CAUSE AND IN ITS DECISION
THAT 5 U.S.C. 7501 IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD AS A
REGULATION OF EMPLOYEES' SPEECH.              I 

THE FIRST ISSUE IN THIS CASE IS A RELATIVELY NARROW ONE--, WHETHER A
FEDERAL EMPLOYEE IN THE COMPETITIVE SERVICE, ENTITLED BY STATUTE TO
SERVE IN HIS JOB WITHOUT FEAR OF DISMISSAL EXCEPT FOR CAUSE, /1/  MUST
BE GIVEN AN EVIDENTIARY HEARING BEFORE HE IS DISCHARGED.  WE ARE HARDLY
WRITING ON A CLEAN SLATE IN THIS AREA.  IN JUST THE LAST FIVE YEARS,
THE COURT HAS HELD THAT SUCH A HEARING MUST BE AFFORDED BEFORE WAGES
CAN BE GARNISHED, SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337
(1969); WELFARE BENEFITS TERMINATED, GOLDBERG V. KELLY, 397 U.S. 254
(1970); A DRIVER'S LICENSE REVOKED, BELL V. BURSON, 402 U.S. 535
(1971); CONSUMER GOODS REPOSSESSED, FUENTES V. SHEVIN, 407 U.S. 67
(1972); PAROLE REVOKED, MORRISSEY V. BREWER, 408 U.S. 471 (1972); OR A
TENURED COLLEGE PROFESSOR FIRED BY A PUBLIC EDUCATIONAL INSTITUTION,
BOARD OF REGENTS V. ROTH, 408 U.S. 564 (1972); PERRY V. SINDERMANN, 408
U.S. 593 (1972). 

A 

IN THE ROTH AND SINDERMANN CASES, MR. JUSTICE STEWART ESTABLISHED
THE FRAMEWORK FOR ANALYSIS TO DETERMINE IN WHAT CIRCUMSTANCES THE DUE
PROCESS CLAUSE DEMANDS A HEARING.  HE OBSERVED THAT ALTHOUGH DUE
PROCESS IS A FLEXIBLE CONCEPT, IT IS NOT UNLIMITED IN APPLICATION. 
"THE REQUIREMENTS OF PROCEDURAL DUE PROCESS APPLY ONLY TO THE
DEPRIVATION OF INTERESTS ENCOMPASSED BY THE FOURTEENTH AMENDMENT'S
PROTECTION OF LIBERTY AND PROPERTY."  ROTH, SUPRA, AT 569.  THUS THE
FIRST ISSUE TO BE DECIDED IS WHETHER APPELLEE HAS AN INTEREST IN HIS
TENURED GOVERNMENT EMPLOYMENT SUCH THAT HIS DISCHARGE AMOUNTS TO A
DEPRIVATION OF LIBERTY OR PROPERTY. 

THE DECISIONS OF THIS COURT HAVE GIVEN CONSTITUTIONAL RECOGNITION TO
THE FACT THAT IN OUR COMPLEX MODERN SOCIETY, WEALTH AND PROPERTY TAKE
MANY FORMS.  /2/  WE HAVE SAID THAT PROPERTY INTERESTS REQUIRING
CONSTITUTIONAL PROTECTION "EXTEND WELL BEYOND ACTUAL OWNERSHIP OF REAL
ESTATE, CHATTLES, OR MONEY."  ROTH, SUPRA, AT 572.  THEY EXTEND AS WELL
TO "SAFEGAURD . . . THE SECURITY OF INTERESTS THAT A PERSON HAS ALREADY
ACQUIRED IN SPECIFIC BENEFITS."  ID., AT 576.  THE TEST FOR WHETHER A
PROTECTED INTEREST HAS BEEN INFRINGED REFLECTS THIS BROAD CONCEPT OF
"PROPERTY:" 

"TO HAVE A PROPERTY INTEREST IN A BENEFIT, A PERSON . . . MUST . . .
HAVE A LEGITIMATE CLAIM OF ENTITLEMENT TO IT.  IS IT A PURPOSE OF THE
ANCIENT INSTITUTION OF PROPERTY TO PROTECT THOSE CLAIMS UPON WHICH
PEOPLE RELY IN THEIR DAILY LIVES, RELIANCE THAT MUST NOT BE ARBITRARILY
UNDERMINED"  ID., AT 577. 

ACCORDINGLY, IN GOLDBERG V. KELLY, SUPRA, THE COURT FOUND THAT
PUBLIC ASSISTANCE RECIPIENTS HAD SUCH A CLAIM OF ENTITLEMENT TO WELFARE
BENEFITS GROUNDED IN THE STATUTE DEFINING ELIGIBILITY.  IN BELL V.
BURSON, SUPRA, THE COURT HELD THAT A DRIVER'S LICENSE, ONCE ISSUED,
BECOMES AN IMPORTANT PROPERTY INTEREST BECAUSE ITS "CONTINUED
POSSESSION MAY BECOME ISSENTIAL IN THE PURSUIT OF A IVELIHOOD."  ID.,
AT 539.  MORE TO THE POINT, IN ROTH THE COURT SUVEYED THE
CONSTITUTIONAL RESTRAINTS APPLICABLE IN THE AREA OF PUBLIC EMPLOYMENT: 

"(THE COURT HAS HELD THAT A PUBLIC COLLEGE PROFESSOR DISMISSED FROM
AN OFFICE HELD UNDER TENURE PROVISIONS, SLOCHOWER V. BOARD OF
EDUCATION, 350 U.S. 551, AND COLLEGE PROFESSORS AND STAFF MEMBERS
DISMISSED DURING THE TERMS OF THEIR CONTRACTS, WIEMAN V. UPDEGRAFF, 344
U.S. 183, HAVE INTERESTS IN CONTINUED EMPLOYMENT THAT ARE SAFEGUARDED
BY DUE PROCESS."  408 U.S., AT 576 - 577.  SEE ALSO CONNELL V.
HIGGINBOTHAM, 403 U.S. 207 (1971).  IN PERRY V. SINDERMANN, SUPRA, WE
FOUND A PROPERTY INTEREST IN THE IMPLIED TENURE POLICY OF A STATE
UNIVERSITY. 

WE HAVE ALREADY DETERMINED THAT A LEGITIMATE CLAIM OF ENTITLEMENT TO
CONTINUED EMPLOYMENT ABSENT "SUFFICIENT CAUSE" IS A PROPERTY INTEREST
REQUIRING THE PROTECTIONS OF PROCEDURAL DUE PROCESS.  /3/  THUS, THERE
CAN BE LITTLE DOUBT THAT APPELLEE'S TENURED GOVERNMENT EMPLOYMENT, FROM
WHICH HE COULD NOT LEGALLY BE DISMISSED EXCEPT FOR CAUSE, MUST ALSO BE
A "PROPERTY" INTEREST FOR THE PURPOSES OF THE FIFTH AMENDMENT.  THE JOB
SECURITY APPLLEE ENJOYED IS CLEARLY ONE OF "THOSE CLAIMS UPON WHICH
PEOPLE RELY IN THEIR DAILY LIVES."  ROTH, SUPRA, AT 577.  AND
APPELLEE'S INTEREST IN CONTINUED PUBLIC EMPLOYMENT ENCOMPASSED MORE
THAN JUST THE PERIODIC ACCURUAL OF WAGES.  HIS DISMISSAL ALSO AFFECTS
HIS VALUABLE STATUTORY ENTITLEMENTS TO RETIREMENT CREDITS AND BENEFITS,
5 U.S.C. 8301, 8311 - 8533, 8331 - 8348; PERIODIC SALARY INCREASES, 5
U.S.C. 5335; AND LIFE AND HEALTH INSURANCE, 5 U.S.C. 8701 - 8716, 8901
8913 (1970 ED. AND SUPP II). 

WE ARE IN AGREEMENT THAT APPELLEE DOES HAVE A CLAIM OF ENTITLEMENT
TO HIS GOVERNMENT JOB, ABSENT PROOF OF SPECIFIED MISCONDUCT.  MR.
JUSTICE REHNQUIST EXPLAINS, HOWEVER, THAT THIS CLAIM IS FOUNDED ONLY IN
STATUTE, AND THAT THE STATUTE WHICH GUARANTEES TENURE ALSO PROVIDES
THAT A HEARING IS NOT REQUIRED BEFORE DISCHARGE.  HE CONCLUDES THAT
"THE PROPERTY INTEREST WHICH APPELLEE HAD IN HIS EMPLOYMENT WAS ITSELF
CONDITIONED BY THE PROCEDURAL LIMITATIONS WHICH HAD ACCOMPANIED THE
GRANT OF THAT INTEREST," ANTE, AT 155, WRYLY OBSERVING THAT "A LITIGANT
IN THE POSITION OF APPELLEE MUST TAKE THE BITTER WITH THE SWEET," ANTE,
AT 154. 

COURTS ONCE CONSIDERED PROCEDURAL DUE PROCESS PROTECTIONS
INAPPLICABLE TO WELFARE ON MUCH THE SAME THEORY-- THAT "IN ACCEPTING
CHARITY, THE APPELLANT HAS CONSENTED TO THE PROVISIONS OF LAW UNDER
WHICH CHARITY IS BESTOWED."  /4/  OBVIOUSLY, THIS COURT REJECTED THAT
REASONING IN GOLDBERG, SUPRA, WHERE WE HELD THAT CONDITIONS UNDER WHICH
PUBLIC ASSISTANCE WAS AFFORDED, WHICH DID NOT INCLUDE A PRETERMINATION
HEARING, WERE VIOLATIVE OF DUE PROCESS.  /5/  IN SINDERMANN, SUPRA, THE
COURT HELD THAT THE CONSTITUTION REQUIRED A HEARING BEFORE DISMISSAL
EVEN WHERE THE IMPLICIT GRANT OF TENURE DID NOT ENCOMPASS THE RIGHT TO
SUCH A HEARING.  IN MORRISSEY V. BREWER, 408 U.S. 471 (1972), THE COURT
HELD THAT ALTHOUGH THE LIMITED GRANT OF LEBERTY AFFORDED BY PAROLE WAS
CONDITIONED BY STATUTE ON THE POSSIBILITY OF REVOCATION WITHOUT A PRIOR
EVIDENTIARY HEARING, CUH A HEARING WAS CONSTITUTIONALLY REQUIRED.  IN
BELL V. BURSON, SUPRA, THE STATE STATUTE UNDER WHICH DRIVERS' LICENSE
WERE ISUED PROVIDED FOR THE SUSPENSION OF AN UNINSURED MOTORIST'S
LICENSE WITHOUT A PRIOR HEARING.  THE COURT NONETHELESS HELD THAT A
HEARING WAS REQUIRED BEFORE THE SUSPENSION COULD BE EFFECTED.  IN NONE
OF THESE CASES DID THE COURT CONSIDER A STATUTORY PROCEDURE TO BE AN
INHERENT LIMITATION ON THE STATUTORILY CREATED LIBERTY OR PROPERTY
INTEREST.  /6/  RATHER, ONCE SUCH AN INTEREST WAS FOUND, THE COURT
DETERMINED WHETHER GREATER PROCEDURAL PROTECTIONS WERE REQUIRED BY THE
DUE PROCESS CLAUSE THAN WERE ACCORDED BY THE STATUTE. 

APPLYING THAT ANALYSIS HERE REQUIRES US TO FIND THAT ALTHOUGH
APPELLEE'S PROPERTY INTEREST AROSE FROM STATUTE, THE DEPRIVATION OF HIS
CLAIM OF ENTITLEMENT TO CONTINUED EMPLOYMENT WOULD HAVE TO MEET MINIMUM
STANDARDS OF PROCEDURAL DUE PROCESS REGARDLESS OF THE DISCHARGE
PROCEDURES PROVIDED BY THE STATUTE.  ACCORDINGLY, A MAJORITY OF THE
COURT REJECTS MR. JUSTICE REHNQUIST'S ARGUMENT THAT BECAUSE APPELLEE'S
ENTITLEMENT AROSE FROM STATUTE, IT COULD BE CONDITIONED ON A STATUTORY
LIMITATION OF PROCEDURAL DUE PROCESS PROTECTIONS, AN APPROACH WHICH
WOULD RENDER SUCH PROTECTION INAPPLICABLE TO THE DEPRIVATION OF ANY
STATUTORY BENEFIT--ANY "PRIVILEGE" EXTENDED BY GOVERNMENT--WHERE A
STATUTE PRESCRIBED A TERMINATION PROCEDURE, NO MATTER HOW ARBITRARY OR
UNFAIR.  IT WOULD AMOUNT TO NOTHING LESS THAN A RETURN, ALBEIT IN
SOMEWHAT DIFFERENT VERBAL GARB, TO THE THOROUGHLY DISCREDITED
DISTINCTION BETWEEN RIGHTS AND PRIVILEGES WHICH ONCE SEEMED TO GOVERN
THE APPLICABILITY OF PROCEDURAL DUE PROCESS.  /7/

        B 

WE HAVE REPEATEDLY OBSERVED THAT DUE PROCESS REQUIRES THAT A HEARING
BE HELD "AT A MEANINGFUL TIME AND IN A MEANINGFUL MANNER," ARMSTRONG V.
MANZO, 380 U.S. 545, 552 (1965), BUT IT REMAINS FOR US TO GIVE CONTENT
TO THAT GENERAL PRINCIPLE IN THIS CASE BY BALANCING THE GOVERNMENT'S
ASSERTED INTERESTS AGAINST THOSE OF THE DISCHARGED EMPLOYEE.  GOLDBERG
V. KELLY, 397 U.S, AT 263; SEE CAFETERIA WORKERS V. MCELROY, 367 U.S.
886, 895 (1961). 

THE INTERESTS OF A PUBLIC EMPLOYEE IN SECURE GOVERNMENT JOB ARE AS
WEIGHTY AS OTHER INTERESTS WHICH WE HAVE FOUND TO REQUIRE AT LEAST THE
RUDIMENTARY PROTECTION OF AN EVIDENTIARY HEARING AS A PRECONDITION TO
TERMINATION. 

     "THIS COURT HAS OFTEN HAD OCCASION TO NOTE THAT THE DENIAL OF

  PUBLIC EMPLOYMENT IS A SERIOUS BLOW TO ANY CITIZEN . . .

  EMPLOYMENT IS ONE OF THE GREATEST, IF NOT EH GREATEST, BENEFITS

  THAT GOVERMENTS OFFER IN MODERN-DAY LIFE."  ROTH, 408 U.S., 589

  (DISSENTING OPINION). 

SEE PERRY V. SINDERMANN, SUPRA; CONNELL V. HIGGINBOTHAM, 403 U.S. 207
(1971); KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 598 (1967); CRAMP V.
BOARD OF PUBLIC INSTRUCTION, 368 U.S. 278, 288 (1961); ANTI-FASCIST
COMMITTEE V. MCGRATH, 341 U.S. 123, 185 (1951) (JACKSON, J.,
CONCURRING); UNITED STATES V. LOVETT, 328 U.S. 303, 316 - 317 (1946). 
THE COURT HAS RECOGNIZED THE VITAL IMPORTANCE OF EMPLOYMENT IN RELATED
CONTEXTS.  IN SNIADACH V. FAMILY FINANCE CORP., THE COURT EXPRESSED ITS
PARTICULAR CONCERN THAT "GARNISHMENT (OF WAGES) OFTEN MEANT THE LOSS OF
A JOB," 395 U.S., AT 340, AND IN BELL V. BURSON, SUPRA, WE RELIED
HEAVILY ON THE FACT THAT A DRIVER'S LICENSE MAY BE "ESSENTIAL IN THE
PURSUIT OF A LIVELIHOOD,"  402 U.S., AT 539.  IN GREENE V. MCELROY, 360
U.S. 474, 508 (1959), THE COURT CONSTRUED FEDERAL SECURITY CLEARANCE
REGULATIONS TO AVOID THE CONSTITUTIONAL ISSUES THAT WOULD BE PRESENTED
IF THE PETITIONER WERE DEPRIVED "OF HIS JOB IN A PROCEEDING IN WHICH HE
WAS NOT AFFORDED THE SAFEGUARDS OF (PROCEDURAL DUE PROCESS)."  SEE ID.,
AT 506 - 507; WILLNER V. COMMITTEE ON CHARACTER, 373 U.S. 96, 103 - 104
(1963). 

AN EXHAUSTIVE STUDY OF THE PROBLEM OF AGENCY DISMISSALS BY THE
UNITED STATES' ADMINISTRATIVE CONFERENCE LED THE AUTHOR OF THE
CONFERENCE'S REPORT TO OBSERVE: 

"ONE CANNOT ESCAPE THE CONCLUSION, HOWEVER, THAT THE GOVERNMENT
EMPLOYEE WHO IS REMOVED FROM HIS JOB LOSES SOMETHING OF TREMENDOUS
VALUE THAT IN A MARKET OF DECLINING DEMAND FOR SHILLS MAY BE
REPLACEABLE.'  /8/ AND THE REPORT ALSO OBSERVES THAT: 

"(ONE MUST ACKNOWLEDGE WHAT SEEMS TO BE AN ACCEPTED, IF REGRETTABLE,
FACT OF LIFE: REMOVAL FROM GOVERNMENT EMPLOYMENT FOR CAUSE CARRIES A
STIGNA THAT IS PROBABLY IMPOSSIBLE TO OUTLIVE.  AGENCY PERSONNEL
OFFICERS ARE GNERALLY PREPARED TO CONCEDE . . . THAT IT IS DIFFICULT
FOR THE FIRED GOVERNMENT WORKER TO FIND EMPLOYMENT IN THE PRIVATE
THEREFORE, IMPLICATE LIBERTY INTERESTS IN IMPOSING ON THE DISCHARGED
EMPLOYEE A STIGMA OF INCOMPETENCE OR WRONG-DOING THAT FORECLOSES "HIS
FREEDOM TO TAKE ADVANTAGE OF OTHER EMPLOYMENT OPPORTUNITIES."  ROTH,
SUPRA, AT 573; SEE WISCONSIN V. CONSTANTINEAU, 400 U.S. 433, 437
(1971). 

GIVEN THE IMPORTANCE OF THE INTEREST AT STAKE, THE DISCHARGED
EMPLOYEE SHOULD BE AFFORDED AN OPPORTUNITY TO TEST THE STRENGTH OF THE
EVIDENCE OF HIS MISCONDUCT BY CONFROMTING AND CROSS-EXAMINING ADVERSE
WITNESSES AND BY PRESENTING WITNESSES IN HIS OWN BEHALD, WHENEVER THERE
ARE SUBSTANTIAL DISPUTES IN TESTIMONIAL EVIDENCE.  SEE MORRISSEY V.
BREWER, 408 U.S., AT 487.  A DISMISSAL FOR CAUSE OFTERN INVOLVES
DISPUTED QUESTIONS OF FACT RAISED BY ACCUSATIONS OF MISCONDUCT. 
MISTAKES OF IDENTIFY, DISTORTIONS CAUSED BY THE FAILURE OF INFORMATION
SOURCES, FAULTY PERCEPTIONS OR CLOUDY MEMORIES, AS WELL AS FABRICATIONS
BORN OF PERSONAL ANTAGONISMS ARE AMONG THE FACTORS WHICH MAY UNDERMINE
THE ACCURACY OF THE FACTUAL DETERMINATIONS UPON WHICH DISMISSALS ARE
BASED.  THE POSSIBILITY OF ERROR IS NOT INSIGNIFICANT.  ALMOST A FOURTH
OF ALL APPELAS FROM ADVERSE AGENCY ACTIONS RESULT IN REVERSAL.  /10/ 

IN OUR SYSTEM OF JUSTICE, THE RIGHT OF CONFRONTATION PROIVEDES THE
CRUCIBLE FOR TESTING THE TRUTH OF ACCUSATIONS SUCH AS THOSE LEVELDED BY
APPELLEE'S SUPERIOR AND STRENUOUSLY DENIED BY APPELLEE.  "IN ALMOST
EVERY SETTING WHERE IMPORTANT DECISIONS TURN ON QUESTIONS OF FACT, DUE
PROCESS REQUIRES AN OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE ADVERSE
WITNESSES."  GOLDBERG V. KELLY, 397 U.S., AT 269 (CITATIONS OMITTED". 
/11/ THE GOLDBERG COURT'S CITATION TO A WELL-KNOWN PASSAGE FROM GREENE
V. MCELROY, 360 U.S. 474 (1959), IS EQUALLY APPLICABLE TO A DISMISSAL
FROM PUBLIC EMPLOYMENT FOR CAUSE AS TO A TERMINATION OF WELFARE
BENEFITS. 

     "'CERTAIN PRINCIPLES HAVE REMAINED IMMUTABLE IN OUR

  JURISPRUDENCE.  ONE OF THESE IS THAT WHERE GOVERNMENT ACTION

  SERIOUSLY INJURES AN INDIVIDUAL, AND THE REASONABLENESS OF THE

  ACTION DEPENDS ON FACT FINDINGS, THE EVIDENCE USED TO PROVE THE

  GOVERNMENT'S CASE MUST BE DISCLOSED TO THE INDIVIDUAL SO THAT HE

  HAS AN OPPORTUNITY TO SHOW THAT IT IS UNTRUE.  WHILE THIS IS

  IMPORTANT IN THE CASE OF DOCUMENTARY EVIDENCE, IT IS EVEN MORE

  IMPORTANT WHERE THE EVIDENCE CONSISTS OF THE TESTIMONY OF

  INDIVIDUALS WHOSE MEMORY MIGHT BE FAULTY OR WHO, IN FACT, MIGHT

  BE PERJURERS OR PERSONS MOTIVATED BY MALICE, VINDICTIVENESS,

  INTOLERANCE, PREJUDICE OR JEALOUSY.  WE HAVE FORMALIZED THESE

  PROTECTIONS IN THE REQUIREMENTS OF CONFRONTATION AND

  CROSS-EXAMINATION.'"  ID., AT 496 - 497, QUOTED IN GOLDBERG V.

  KELLY, SUPRA, AT 270. 

SEE ALSO CHAMBERS V. MISSISSIPPI, 410 U.S. 284, 295 - 298 (1973);
PINTER V. TEXAS, 380 U.S. 400 (1965). 

THIS CASE AND GOLDBERG INVOLVE THE TERMINATION OF INCOME, WHETHER IN
SALARY OR PUBLIC ASSISTANCE PAYMENTS, UPON WHICH THE RECIPIENT MAY
DEPEND FOR BASIC SUSTENANCE.  A PERSON SHOULD NOT BE DEPRIVED OF HIS
LIVELIHOOD "IN A PROCEEDING IN WHICH HE WAS NOT AFFORDED THE SAFEGUARDS
OF CONFRONTATION AND CROSS-EXAMINATION."  GREENE, SUPRA, AT 508; SEE
JENKINS V. MCKEITHEN, 395 U.S. 411, 423 - 429 (1969); WILLNER V.
COMMITTEE ON CHARACTER, 373 U.S., AT 103.  THE STAKES ARE JUST TOO HIGH
AND THE POSSIBILITY OF MISJUDGMENT TOO GREAT TO ALLOW DISMISSAL WITHOUT
GIVING THE TENURED PUBLIC EMPLOYEE AN OPPORTUNITY TO CONTEST ITS BASIS
AND PRODUCE EVIDENCE IN REBUTTAL.  SEE GOLDBERG, SUPRA, AT 206.     IT
ALSO SEEMS CLEAR THAT FOR THE HEARING TO BE MEANINGFUL, THE HEARING
OFFICER MUST BE INDEPENDENT AND UNBIASED AND HIS DECISION BE ENTITLED
TO SOME WEIGHT.  WE ADDRESSED THE IMPORTANCE OF THIS ELEMENT OF DUE
PROCESS IN GOLDBERG, SUPRA, WHERE WE FOUND THE REQUIREMENTS OF DUE
PROCESS WERE NOT MET BY THE REVIEW OF A WELFARE TERMINATION DECISION BY
THE CASEQORKER WHO WAS, IN EFFECT, ALSO THE COMPLAINANT.  397 U.S., AT
271.  IN MORRISSEY V. BREWER, SUPRA, WE HELD THAT AN INDEPENDEDT
DECISIONMAKER MUST DETERMINE WHETHER RESONABLE GROUNDS EXIST FOR PAROLE
REVOCATION BECAUSE AN "OFFICER DIRECTLY INVOLVED IN MAKING
RECOMMENDATIONS CANNOT ALWAYS HAVE COMPLETE OBJECTIVITY IN EVALUATING
THEM."  408 U.S., AT 486.  THE NEED FOR AN INDEPENDENT DECISIONMAKER IS
PARTICULARLY CRUCIAL IN THE PUBLC EMPLOYMENT CONTEXT, WHERE THE REASON
FOR THE CHALLENGED DISMISSAL MAY WELL BE RELATED TO SOME PERSONAL
ANTAGONISM BETWEEN THE EMPLOYEE AND HIS SUPERIOR, AS APPEARS TO BE THE
CASE HERE.  /12/  SEE PECKERING V. BOARD OF EDUCATION, 391 U.S. 563,
578 - 579, APPENDIX N. 2 (1968). 

        C 

A DISCHARGED FEDERAL WORKER IN THE COMPETITIVE SERVICE IS, IN FACT,
GUARANTEED A FULL EVIDENTIARY HEARING BEFORE AN IMPARTIAL DECISIONMAKER
WHOSE REPORT IS ENTITLED TO CONSIDERABLE WEIGHT.  /13/  BUT THE TIMING
OF THE HEARING IS DISCRETIONARY WITH THE EMPLOYING AGENCY, SEE 5 CFR
771.208 (A) (1972), AND IN MANY AGENCIES, SUCH AS THE OEO, THE HEARING
COMES LONG AFTER THE EMPLOYEE HAS BEEN REMOBED FROM THE GOVERNMENT
SERVICE AND PAYROLL.  IN A SENSE, THEN, THE REAL ISSUE IS NOT WHETHER
APPELLEE MUST BE ACCORDED AN EVIDENTIARY HEARING, BUT ONLY WHETHER THAT
HEARING SHOULD HAVE BEEN AFFORDED BEFORE HIS DISCHARGE BECAME
EFFECTIVE.  ALTHOUGH THE NATURE OF THE HEARING REQUIRED BY DUE PROCESS
IS DETERMINED BY A BALANCING PROCESS, THAT HEARING MUST BE HELD AT A
MEANINGFUL TIME.  ACCORDINGLY, THE COURT HAS EMBRACED A GENERAL
PRESUMPTION THAT ONE WHO IS CONSTITUTIONALLY ENTITLED TO A HEARING
SHOULD BE HEARD BEFORE THE DEPRIVATION OF HIS LIBERTY OR PROPERTY TAKES
PLACE.  THUS, IN BODDIE V. CONNECTUCUT, 401 U.S. 371 (1971), THE COURT
OBSERVED THAT THE FACT THAT "THE HEARING . . . IS NOT FIXED IN FORM
DOES NOT AFFECT ITS ROOT REQUIREMENT THAT AN INDIVIDUAL BE GIVEN AN
OPPORTUNITY FOR A HEARING BEFORE HE IS DEPRIVED OF ANY SIGNIFICANT
PROPERTY INTEREST, EXCEPT FOR EXTRAORDINARY SITUATIONS WHERE SOME VALID
GOVERNMENTAL INTEREST IS AT STAKE THAT JUSTIFIES POSTPONING THE HEARING
UNTIL AFTER THE EVENT."  ID., AT 378 - 379.  (EMPHASIS IN ORGINAL.)  IN
BELL V. BURSON, SUPRA, WE HELD THAT "EXCEPT IN EMERGENCY SITUATIONS . .
. DUE PROCESS RQUIRES THAT WHEN A STATE SEEKS TO TERMINATE AN
(IMPORTANT PROPERTY) INTEREST . . . IT MUST AFFORD 'NOTICE AND
OPPORTUNITY FOR HEARING . . .'  BEFORE THE TERMINATION BECOMES
EFFECTIVE."  402 U.S., AT 542 (EMPHAIS IN ORIGINAL) (FOOTNOTE
OMITTED).  IN GOLDBERG V. KELLY, SUPRA, THE COURT FOUND THAT AN
EVIDENTIARY HEARING HELD AFTER THE TERMINATION OF WELFARE BENEFITS WAS
INADEQUATE TO SATISFY CONSTITUTIONAL REQUIREMENTS.  /14/ 

EVEN IF WE ACCEPT APPELLANTS' ASSERTION THAT A SUBSEQUENT HEARING
AFFORDS THE DISCHARGED EMPLOYEE AND OPPORTUNITY TO CLEAR HIS NAME, /15/
THE WORKER STILL HAS A SIGNIFICANT INTEREST IN RETAINING HIS JOB
PENDING A FULL HEARING.  /16/  ALMOST A FOURTH OF ALL APPEALS FROM
AGENCY DISMISSALS RESULT IN A FINDING THAT THE TERMINATION WAS
ILLEGAL.  /17/  AND, THE DELAY FROM DISCHARGE TO ULTIMATE VINDICATION
AT A HEARING ON APPEAL IS FAR FROM INSUBSTANTIAL.  MOR THAN 75% OF
ADVERSE PERSONNEL ACTIONS TAKE MORE THAN TWO MONTHS TO PROCESS; OVER
HALF TAKE MORE THAN THREE MONTHS AND A NOT INSIGNIFICANT NUMBER TAKE
MORE THAN A YEAR.  /18/  THE LONGER THE PERIOD BETWEEN THE DISCHARGE
AND THE HEARING, THE MORE DIVASTATING WILL BE THE IMPACT OF THE LOSS OF
EMPLOYMENT. 

DURING THE PERIOD OF DELAY, THE EMPLOYEE IS OFF THE GOVERNMENT
PAYROLL.  HIS ABILITY TO SECURE OTHER EMPLOYMENT TO TIDE HIMSELF OVER
MAY BE SIGNIFICANTLY HINDERED BY THE OUTSTANDING CHARGES AGAINST HIM. 
/19/  EVEN ASIDE FROM THE STIGMA THAT ATTEMDS A DISMISSAL FOR CAUSE,
FEW WMPLOYERS WILL BE WILLING TO HIRE AND TRAIN A NEW EMPLOYEE KNOWING
THAT HE WILL RETURN TO A FORMER GOVERNMENT POSITION AS SOON AS AN
APPEAL IS SUCCESSFUL.  /20/  AND IN MANY STATES, INCLUDING ILLINOIS,
WHERE APPELLEE RESIDES, A WORKER DISCHARGED FOR CAUSE IS NOT EVEN
ELIGIBLE FOR UNEMPLOYMENT COMPENSATION.  /21/ 

MANY WORKERS, PARTICULARLY THOSE AT THE BOTTOM OF THE PAY SCALE,
WILL SUFFER SEVERE AND PAINFUL ECONOMIC DISLOCATIONS FROM EVEN A
TEMPORARY LOSS OF WAGES.  FEW PUBLIC EMPLOYEES EARN MORE THAN ENOUGH TO
PAY THEIR EXPENSES FROM MONTH TO MONTH.  SEE SAMPSON V. MURRAY, 415
U.S. 61, 97 (1974) (DISSENTING OPINION).  LIKE MAY OF US, THEY MAY BE
REQUIRED TO MEET SUBSTANTIAL FIXED COSTS ON A REGULAR BASIS AND LACK
SUBSTANTIAL SAVINGS TO MEET THOSE EXPENSES WHILE NOT RECIEVING A
SALARY.  THE LOSS OF INCOME FOR EVEN A FEW WEEKS MAY WELL IMPAIR THEIR
ABILITY TO PROVIDE THE ESSENTIALS OF LIFE--TO BUY FOOD, MEET MORTGAGE
OR RENT PAYMENTS, OR PROCURE MEDICAL SERVICES.  RICUCCI V. UNITED
STATES, 192 CT. CL. 1, 9 - 11, 425 F.2D 1252, 1256 - 1257 (1970)
(SKELTON, J., CONCURRING).  THE PLIGHT OF A DISCHARGED EMPLOYEE MAY NOT
BE FAR DIFFERENT FROM THAT OF THE WELFARE RECIPIENT IN GOLDBERG WHO,
"PENDING RESOLUTION OF A CONTROVERSY . . . MAY (BE) DEPRIVED) . . . OF
THE VERY MEANS BY WHICH TO LIVE WHILE HE WAITS."  397 U.S., AT 264. 
APPELLEE, ALTHOUGH EARING AN ANNUAL SALARY OF $16,000 BEFORE HIS
DISMISSAL, FAR ABOVE THE MEAN SALARY FOR FEDERAL EMPLOYEES, /22/  WAS
NONETHELESS DRIVEN TO THE BRINK OF FINANCIAL RUIN WHILE HE WAITED.  HE
HAD TO BORROW MONEY TO SUPPORT HIS FAMILY, HIS DEBTS WENT UNPAID, HIS
FAMILY LOST THE PROTECTION OF HIS HEALTH INSURANCE AND, FINALLY, HE WAS
FORCED TO APPLY FOR PUBLIC ASSISTANCE.  APP. 128 ET SEQ. IN THIS
CONTEXT JUSTICE DELAYED MAY WELL BE JUSTICE DENIED. 

TO ARGUE THAT A DISMISSAL FROM TENURED GOVERNMENT EMPLOYMENT IS NOT
A SERIOUS ENOUGH DEPRIVATION TO REQUIRE A PRIOR HEARING BECAUSE THE
DISCHARGED EMPLOYEE MAY DRAW ON THE WELFARE SYSTEM IN THE INTERIM, IS
TO EXHIBIT A GROSS INSENSITIVITY TO THE PLIGHT OF THESE EMPLOYEES. 
FIRST, IT ASSUMES THAT THE DISCHARGED EMPLOYEE WILL BE ELIGIBLE FOR
WELFARE.  OFTEN WELFARE APPLICANTS MUST BE ALL BUT STRIPPED OF THEIR
WORDLY GOODS BEFORE BEING ADMITTED TO THE WELFARE ROLES, HENCE IT IS
LIKELY THAT THE EMPLOYEE WILL SUFFER CONSIDERABLE HARDSHIP BEFORE
BECOMING ELIGIBLE.  HE MAY BE REQUIRED NOT ONLY TO EXHAUST HIS SAVINGS
BUT ALSO TO CONVERT MANY OF HIS ASSETS INTO CASH FOR SUPPORT BEFORE
BEING ABLE TO FALL BACK ON PUBLIC ASSISTANCE.  HE MAY HAVE TO GIVE UP
HIS HOME OR CHERISHED PERSONAL POSSESSIONS IN ORDER TO BECOME
ELIGIBLE.  THE ARGUMENT ALSO ASSUMES ALL BUT INSTANT ELIGIBILITY WHICH
IS, SADLY, FAR FROM LIKELY EVEN WHEN ALL THE EMPLOYEE'S OTHER SOURCES
OF SUPPORT HAVE BEEN DEPLETED.  MOREOVER, RIGHTLY OR WRONGLY, MANY
PEOPLE CONSIDER WELFARE DEGRADING AND WOULD DECLINE PUBLIC ASSISTANCE
EVEN WHEN ELIGIBLE.  FINALLY, THE LEVEL OF SUBSISTENCE PROVIDED BY
WELFARE IS MINIMAL, CERTAINLY LESS THAN ONE IS APT TO EXPECT FROM
STEADY EMPLOYMENT.  THE SUBSTITUTION OF A MEAGER WELFARE GRANT FOR A
REGULAR PAYCHECK MAY BRING WITH IT PAINFUL AND IRREMEDIABLE PERSONAL AS
WELL AS FINANCIAL DISLOCATIONS.  A CHILD'S EDUCATION MAY BE
INTERRUPTED, A FAMILY'S HOME LOST, A PERSON'S RELATIONSHIP WITH HIS
FRIENDS AND EVEN HIS FAMILY MAY BE IRREVOCABLY AFFECTED.  THE COSTS OF
BEING FORCED, EVEN TEMPORARILY, ONTO THE WELFARE ROLLS BECAUSE OF A
WRONGFUL DISCHARGE FROM TENURED GOVERNMENT EMPLOYMENT CANNOT BE SO
EASILY DISCOUNTED. 

NOR DOES THE AVAILABILITY OF BACKPAY UPON AN ULTIMATE FINDING THAT
THE DISMISSAL WAS IMPROPER ALLEVIATE THE COMPELLING NATURE OF THE
EMPLOYEE'S PLIGHT.  CF. SAMPSON V. MURRAY, 415 U.S. 61, 97 (1974)
(DISSENTING OPINION).  IN SNIADACH V. FAMILY FINANCE CORP., SUPRA, THE
COURT RECOGNIZED THAT THE EMPLOYEE HAD AN INTEREST IN THE ENJOYMENT OF
HIS WAGES AS THEY ACCRUED AND NOTED THAT EVEN A TEMPORARY LOSS OF
SALARY COULD PUT A WAGE EARNER BELOW THE POVERTY LEVEL OR "DRIVE A WAGE
EARNING FAMILY TO THE WALL."  395 U.S., AT 341 - 342.  THUS, WE HELD
TAHT A WAGE EARNER IS ENTITLED TO A HEARING PRIOR TO THE GARNISHMENT OF
HIS WAGES EVEN THOUGH HE WOULD ULTIMATLEY GET HIS FROZEDN EARNINGS BACK
WHEN AND IF HE PREVAILED IN A SUIT ON THE MERITS.  ACCORD, ID., AT 343
(HARLAN, J., CONCURRING).  AND, IN FUENTES V. SHEVIN, 407 U.S. 67
(1972), THE COURT HELD THAT DUE PROCESS REQUIRED A HEARING BEFORE A
SEIZURE OF PROPERTY BY WRIT OF REPLEVIN, OBSERVING THAT: 

     "IF THE RIGHT TO NOTICE AND A HEARING IS TO SERVE ITS FULL

  PURPOSE, THEN, IT IS CLEAR THAT IT MUST BE GRANTED AT A TIME WHEN

  THE DEPRIVATION CAN STILL BE PREVENTED.  AT A LATER HEARING, AN

  INDIVIDUAL'S POSSESSIONS CAN BE RETURNED TO HIM IF THEY WERE

  UNDAIRLY OR MISTKENLY TAKEN IN THE FIRST PLACE.  DAMAGES MAY EVEN

  BE AWARDED TO HIM FOR WRONGFUL DEPRIVATION.  BUT NO LATER HEARING

  AND NO DAMAGE AWARD CAN UNDO THE FACT THAT THE ARBITRARY TAKING

  THAT WAS SUBJECT TO THE RIGHT OF PROCEDURAL DUE PROCESS HAD

  ALREADY OCCURRED.  'THIS COURT HAS NOT . .  . EMBRACED THE

  GENERAL PROPOSITION THAT A WRONG MAY BE DONE IF IT CAN BE

  UNDONE.'"  ID., AT 81 - 82. 

THE FUENTES COURT, APPLYING THESE CONSIDERATIONS, ALBEIT IN DICTA,
OBSERVED THAT, "(IN CASES INVOLVING DEPRIVATIONS OF OTHER INTERESTS,
SUCH AS GOVERNMENT EMPLOYMENT, THE COURT SIMILARLY HAS REQUIRED AN
UNUSUALLY IMPORTANT GOVERNMENTAL NEED TO OUTWEIGH THE RIGHT TO A PRIOR
HEARING."  ID., AT 91 N. 23.  THE COURT HAS RECOGNIZED A NUMBER OF
INSTANCES WHERE A VITAL GOVERNMENTAL INTEREST MAY OUTWEIGH THE RIGHT TO
A PRIOR HEARING, INCLUDING THE NEED TO SEIZE PROPERTY TO "COLLECT THE
INTERNAL REVENUE OF THE UNITED STATES, TO MEET THE NEEDS OF A NATIONAL
WAR EFFORT, TO PROTECT AGAINST THE ECONOMIC DISASTER OF A BANK FAILURE,
AND TO PROTECT THE PUBLIC FROM MISBRANDED DRUGS AND CONTAMINATED
FOODS."  ID., AT 92 (FFOTNOTES OMITTED).  /23/  SUCH A VITAL INTEREST
IS CLEARLY LACKING HERE. 

THE GOVERNMENT'S ASSERTED INTERESTS IN NOT AFFORDING A PRESDISMISSAL
HEARING ARE TWOFOLD.  FIRST, APPELLANTS ARGUE THAT THE DELAY IN HOLDING
THE HEARING MAKES THE FUNCTIONING OF THE AGENCY MORE EFFICIENT.  WE
REJECTED A SIMILAR RATIONALE IN GOLDBERG, 397 U.S., AT 266, AND
OBSERVED IN FUENTES, SUPRA, THAT: 

     "A PRIOR HEARING ALWAYS IMPOSES SOME COSTS IN TIME, EFFORT,
AND

  EXPENSE, AND IT IS OFTEN MORE EFFICIENT TO DISPENSE WITH THE

 OPPORTUNITY FOR SUCH A HEARING.  BUT THESE RATHER ORDINARY COSTS

  CANNOT OUTWEIGH THE CONSTITUTIONAL RIGHT.  PROCEDURAL DUE PROCESS

  IS NOT INTENDED TO PROMOTE EFFICIENCY OR ACCOMMODATE ALL PSSSIBLE

  INTERESTS: IT IS INTENDED TO PROTECT THE PARTICULAR INTERESTS OF

  THE PERSON WHOSE POSSESSIONS (OR PROPERTY) ARE ABOUT TO BE

  TAKEN. 

      "' . . . (THE CONSTITUTION RECOGNIZES HIGHER VALUES THAN
SPEED

  AND EFFICIENCY.  INDEED, ONE MIGHT FAIRLY SAY OF THE BILL OF

  RIGHTS IN GENEAL, AND THE DUE PROCESS CLAUSE IN PARTICULAR, THAT

  THEY WERE DESIGNED TO PROTECT THE FRAGILE VALUES OF A VULNERABLE

  CITIZENRY FROM THE OVERBEARING CONCERN FOR EFFICIENCY AND

  EFFICACY THAT MAY CHARACTERIZE PRAISEWORTHY GOVERMENT OFFICIALS

  NO LESS, AND PERHAPS MORE, THAN MEDIOCRE ONES.'"  407 U.S., AT 90

  - 91, N. 22 (CITATIONS OMITTED). 

MOREOVER, THE GOVERNMENTS'S INTEREST IN EFFICIENCY IN THIS CASE IS
ENTIRELY UNCONVINCING.  THE APPLICABLE STATUTE DOES NOT PROHIBIT PRIOR
HEARINGS BUT RATHER MAKES THEM DISCRETIONARY WITH THE AGENCY.  NINE
FEDERAL AGENCIES, INCLUDING THE FCC, NLRB, HUD, HEW, THE DEPARTMENT OF
JUSTICE, AND THE CIVIL SERVICE COMMISSION ITSELF, REGULARLY ACCORD
EVIDENTIARY HEARINGS PRIOR TO THE DISMISSAL OF A TENURED EMPLOYEE. 
/24/  THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, ON THE BASIS
OF ITS EXHAUSTIVE STUDY OF FEDERAL AGENCY PROCEEDINGS FOR THE DISMISSAL
OF EMPLOYEES IN THE COMPETITIVE SERVICE, STRONGLY RECOMMENDED THAT
EVIDENTIARY HEARINGS BE HELD PRIOR TO DISCHARGE.  /25/ 

THE ADMINISTRATIVE CONFERENCE FOUND THAT THE EVIDENCE, ALTHOUGH
INCONCLUSIVE, INDICATES THAT THE AGENCIES THAT PROVIDED PRETERMINATION
HEARINGS CLOSED ADVERSE ACTION PROCEEDINGS MORE QUICKLY THAN THOSE
WHICH DID NOT HOLD AN EVIDENTIARY HEARING UNTIL AFTER THE DISMISSAL HAD
BEEN EFFECTED.  IT ALSO FOUND THAT THE DELAYS IN CLOSING CASES
INVOLVING HEARINGS ARE TYPICALLY CAUSED NOT BY THE LENGTH OF THE
HEARINGS--ALMOST ALL ARE COMPLETED WITHIN A DAY--BUT RATHER BY
SCHEDULING DIFFICULTIES.  AND THOSE AGENCIES WHICH TAKE THREE MONTHS OR
MORE TO HOLD POST-TERMINATION HEARINGS HAVE LITTLE INCENTIVE TO DECIDE
DISMISSAL CASES MORE PROMPTLY, SINCE THE EMPLOYEE HAS ALREADY BEEN
DISCHARGED AND HE BEARS MOST OF THE COSTS OF DELAY.  IF THE HEARING
WERE REQUIRED BEFORE TERMINATION, AGENCIES WOULD HAVE A FAR GREATER
INCENTIVE TO DECIDE THESE CASES EXPEDITIOUSLY.  /26/  FINALLY,
PRIVIDING AN EVIDENTIARY HEARING BEFORE THE DISCHARGE MIGHT WELL
OBVIATE THE PRACTICAL AND CONSTITUTIONAL NEED FOR A FULL POST
TERMINATION PROCEEDING.  /27/ 

THE GOVERNMENT ALSO ARGUES THAT IF A SUPERVISOR WERE UNABLE TO
EFFECT AN IMMEDIATE REMOVAL OF A TROUBLESOME EMPLOYEE FROM HIS AGENCY,
THE DISCIPLINE AND EFFICIENCY OF THE WHOLE OFFICE MIGHT BE DISRUPTED. 
UNDER THE PREVAILING PRACTICE, AN AGENCY MAY NOT DISMISS AN EMPLOYEE
UNTIL 30 DAYS AFTER HE HAS HAD AN OPPORTUNITY TO REPLY.  THUS, FELLOW
WORKERS AND SUPERVISORS MUST NOW FUNCTION WITH THE THREATENED EMPLOYEE
IN THEIR MIDST FOR AT LEAST A MONTH, AND THERE SEEMS LITTLE REASON WHY
A HEARING COULD NOT BE HELD DURING THAT 30-DAY PERIOD.  /28/  IF THE
EMPLOYEE ACTUALLY THREATENS TO DISRUPT THE OPERATION OF THE OFFICE, HE
COULD BE PUT ON ADMINISTRATIVE LEAVE OR TEMPORARILY ASSIGNED TO A LESS
SENSITIVE POSITION PENDING HIS HEARING, AS CURRENTLY PROVIDED FOR BY
REGULATION.  5 CFR 752.202 (D). 

THE ONLY PRETERMINATION PROCEEDING ACCORDED APPELLEE WAS A "RIGHT OF
REPLY," SEE 5 CFR 752.202, BUT THE "RIGHT OF REPLY" FALLS FAR SHORT OF
BEING THE MEANINGFUL HEARING WHICH, IN MY VIEW, IS CONSTITUTIONALLY
REQUIRED.  AS THE AUTHOR OF THE ADMINISTRATIVE CONFERENCE REPORT
OBSERVED: 

"IN MOST AGENCIES . . . AN EMPLOYEE'S RIGHT TO REPLY SIMPLY MEANS
THAT HE MAY MEET INFORMALLY WITH A REPRESENTATIVE OF THE AGENCY AND
ADVANCE ORAL REPRESENTATIONS THAT HE HOPES WILL SWAY THE FINAL
DECISION.  HE HAS NO RIGHT AT THIS STAGE TO PRESENT WITNESSES OR TO
CONFRONT AND CROSS-EXAMINE THE AGENCY'S WITNESSES."  /29/  (FOOTNOTES
OMITTED.)  THE AGENCY OFFICIAL BEFORE WHOM THE EMPLOYEE APPEATS NEED
NOT BE THE DECISIONMAKER; HE NEED ONLY BE ABLE TO RECOMMEND A
DECISION.  MOREOVER, THE HEARING EXAMINER OR THE PERSON RESPONSIBLE FOR
THE DECISION TO DISCHARGE THE EMPLOYEE MAY WELL BE THE COMPLAINANT OR
HIS DIRCET SUBORDINATE.  IN THE CASE BEFORE US, FOR EXAMPLE, THE
DECISION AS TO WHETHER APPELLEE SHOULD BE DISCHARGED WAS MADE BY THE
OEO REGIONAL DIRECTOR ASSEMBLED THE EVIDENCE AGAINST APPELLEE, PROPOSED
THE DISMISSAL, THEN DECIDED IT SHOULD BE EFFECTED; HE ACTED AS
COMPLINING WITNESS, PROSECUTOR, AND JUDGE.  THE MEANINGLESS
BUREAUCRATIC PAPER SHUFFLING AFFORDED APPELLEE BEFORE HIS DISCHARGE
WOULD SURLY NOT ALONE SATISFY THE STRINGNET DEMANDS OF DUE PROCESS WHEN
SUCH AN IMPORTANT INTEREST IS AT STAKE. 

THE DECISIONS OF THIS COURT COMPEL THE CONCLUSION THAT A WORKER WITH
A CLAIM OF ENTITLEMENT TO PUBLIC EMPLOYMENT ABSENT SPECIFIED CAUSE HAS
A PROPERTY INTEREST PROTECTED BY THE DUE PROCESS CLAUSE AND THEREFORE
THE RIGHT TO AN EVIDENTIARY HEARING BEFORE AN IMPARITAL DECISIONMAKER
PRIOR TO DISMISSAL.  ACCORDINGLY, I WOULD AFFIRM THE DECISION OF THE
COURT BELOW THAT APPELLEE HAD BEEN DISCHARGED IN VIOLATION OF HIS
PROCEDURAL DUE PROCESS RIGHTS. 

        II 

THE COURT BELOW ALSO HELD THAT THE PROVISION OF THE LLOYD-LA
FOLLETTE ACT WHICH AUTHORIZES DISMISSAL OF TENURED GOVERNMENT EMPLOYEES
FOR "SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE" IS
UNCONSTITUTIONALLY VAGUE AND OVERBROAD.  /30/ 

THERE IS NO DISPUTE BUT THAT THE PHREASE "'SUCH CAUSE AS WILL
PROMOTE THE EFFICIENCY OF THE SERVICE' AS A STANDARD OF EMPLOYEE JOB
PROTECTION IS WITHOUT A DOUBT INTENDED TO AUTHORIZE DISMISSAL FOR
SPEECH," ANTE, AT 160.  THE MAJORITY FINDS THIS PERMISSIBLE BECAUSE IN
PICKERING V. BOARD OF EDUCATION, 391 U.S. 563, 568 (1968), WE OBSERVED
THAT "THE STATE HAS INTERESTS AS AN EMPLOYER IN REGULATING THE SPEECH
OF ITS EMPLOYEES THAT DIFFER SIGNIFICANTLY FROM THOSE IT POSSESSES IN
CONNECTION WITH THE REGULATION OF THE SPEECH OF THE CITIZENRY IN
GENERAL."  BUT, THE MAJORITY SEEMS TO HAVE IGNORED THE PASSAGE IN
PICKERING THAT DIRECTLY PRECEDES THE QUOTED MATERIAL: 

"(TO SUGGEST THAT TEACHERS MAY CONSTITUTIONALLY BE COMPELLED TO
RELIQUISH THE FIRST AMENDMENTS RIGHTS THEY WOULD OTHERWISE ENJOY AS
CITIZENS TO COMMENT ON MATTERS OF PUBLIC INTEREST IN CONNECTION WITH
THE OPERATION OF THE PUBLIC SCHOOLS IN WHICH THEY WORK, . . . PROCEEDS
ON A PREMISE THAT HAS BEEN UNEQUIVOCALLY REJECTED IN NUMEROUS PRIOR
DECISIONS OF THIS COURT.  E.G., WIEMAN V. UPDEGRAFF, 344 U.S. 283
(1952); SHELTON V. TUCKER, 364 U.S. 479 (1960); KEYISHIAN V. BOARD OF
REGENTS, 385 U.S. 589 (1967)."  IBID. 

THE IMPORTANCE OF GOVERNMENT EMPLOYEES' BEING ASSURED OF THEIR RIGHT
TO FREELY COMMENT ON THE ONDUCT OF GOVERNMENT, TO INFORM THE PUBLIC OF
ABUSES OF POWER AND OF THE MISCONDUCT OF THEIR SUPERIORS, MUCT BE SELF
EVIDENT IN THESE TIMES.  IN PECKERING, THIS COURT SPECIFICALLY UPHELD
THE RIGHT OF A PUBLIC EMPLOYEE TO CRITICIZE THE CONDUCT OF HIS
SUPERIORS.  ID., AT 573 - 574.  IN FACT, IT APPEARS THAT ONE OF THE
PRIMARY PURPOSES OF THE LLOYD/LA FOLLETTE ACT WAS TO PROTECT SUCH
CRITICISM FROM OFFICIAL RETRIBUTION.  SENATOR LA FOLLETTE GAVE THE
FOLLOWING EXAMPLE OF AN ABUSE SOUGHT TO BE CURED BY THE BILL: 

"THE CAUSE FOR (THE EMPLOYEE'S) DISMISSAL WAS THAT HE GAVE

PUBLICITY TO THE INSANITARY CONDITIONS EXISTING IN SOME PART OF

  THE POST-OFFICE BUILDING IN CHICAGO WHERE THE CLERKS WERE

  REQUIRED TO PERFORM THEIR SERVICES.  . . . (HE FURNISHED SOME

  FACTS TO THE PRESS OF CHICAGO, AND TH PUBLICATION WAS MADE OF THE

  CONDITIONS.  THEY WERE SIMPLY HORRIBLE . . . . THE PUBLIC HEALTH

  OFFICERS OF CHICAGO, AS SOON AS THEIR ATTENTION WAS CALLED TO THE

  CONDITIONS, CONDEMNED THE SITUATION AS THEY FOUND IT; AND YET

  THIS YOUNG MAN, ONE OF THE BRIGHTEST FELLOWS I HAVE MET, WAS

  REMOVED FROM THE SERVICE BECAUSE, HE HAD GIVEN TO PUBLICITY TO

THESE OUTRAGEOUS CONDITIONS."  48 CONG. REC. 10731 (1912). 

THE "EFFICIENCY OF THE SERVICE" STANDARD WOULD APPEAR TO BRING
WITHIN ITS REACH, AS PERMISSILBE GROUNDS FOR DISMISSAL, EVEN TRUTH FUL
CRITICISM OF AN AGENCY THAT IN ANY WAY TENDS TO DISRUPT ITS OPERATION. 
ONE CAN BE SURE, FOR EXAMPLE, THAT THE CRITICSM OF THE YOUNG MAN IN
SENATOR LA FOLLETTE'S EXAMPLE DISRUPTED THE OPERATION OF THE CHICAGO
POST OFFICE.  IT SEEMS CLEAR THAT THE STANDARD COULD BE CONSTRUED TO
PUNISH SUCH PROTECTED SPEECH. 

THE MAJORITY PURPOSTS TO SOLVE THIS POTENTIAL OVER-BREADTH PROBLEM
MERELY BY ANNOUNCING THAT THE STANDARD IN THE ACT "EXCLUDES PROTECTED
SPEECH."  NONETHELESS, IT LEAVES THE STATUTORY STANDARD INTACT AND
OFFERS NO GUIDANCE OTHER THAN GENERAL OBSERVATION AS TO WHAT CONDUCT IS
OR IS NOT PUNISHABLE.  /31/ THE COURT'S ANSWER IS NOT ANSWER AT ALL. 
TO ACCEPT THIS RESPONSE IS FUNCTIONALLY TO ELIMINATE OVERBREADTH FROM
THE FIRST AMENDMENT LEXICON.  NO STATUTE CAN REACH AND PUNISH
CONSTITUTIONALLY PROTECTED SPEECH.  THE MAJORITY HAS NOT GIVERN THE
STATUTE A LIMITING CONSTURCTION BUT MERELY REPEATED THE OBVIOUS. 

THE MAJORITY MISUNDERSTANDS THE OVERBREADTH PRINCIPLE WHICH CONCERNS
THE POTENTIAL DETERRENT EFFECT ON CONSTITUTIONALLY PROTECTED SPEECH OF
A STATUTE THAT IS OVERBROAD OR VAUGE ON ITS FACE.  THE FOCUS OF THE
DOCTRINE IS NOT ON THE INDIVIDUAL ACTOR BEFORE THE COURT BUT ON OTHERS
WHO MAY FORGO PROTECTED ACTIVITY RATHER THAN RUN AFOUL OF THE STATUTE'S
PROSCRIPTIONS.  HENCE, THE COURT HAS REBVERSED CONVICTIONS WHERE THE
SUBJECT SPEECH COULD HAVE BEEN PUNISHED UNDER A MORE NARROWLY DRAWN
STATUTE BECAUSE THE STATUTE AS DRAWN PURPORTED TO COVER, AND MIGHT
DETER OTHERS FROM ENGAGING IN, PROTECTED SPEECH.  THE COURT EXPLAINED
THIS VAGUENESS-OVERBREADTH RELATIONSHIP IN KEYISHIAN V. BOARD OF
REGENTS, 385 U.S., AT 603 - 604: 

     "WE EMPHASIZE ONCE AGAIN THAT '(PRECISION OF REGULATION MUST
BE

  THE TOUCHSTONE IN AN AREA SO CLOSELY TOUCHING OUT MOST PRECIOUS

  FREEDOMS,' N.A.A.C.P. V. BUTTON, 371 U.S. 415, 438; '(FOR

  STANDARDS OF PERMISSIBLE STATUTORY VAGUENESS ARE STRICT IN THE

AREA OF FREE EXPRESSION.  . .  BECAUSE FIRST AMENDMENT FREEDOMS

  NEED BREATHING SPACE TO SURVIVE, GOVERNMENT MAY REGULATE IN THE

  AREA ONLY WITH NARROW SPECIFICITY.'  ID., AT 432 - 433 . . . WHEN

  ONE MUST GUESS WHAT CONDUCT OR UTTERANCES MAY LOSE HIM HIS

  POSITION, ONE NECESSARILY WILL 'STEER FAR WIDER OF THE UNLAWFUL

  ZONE . . . .'  SPEISER V. RANDALL, 357 U.S. 513, 526.  FOR '(THE

  THREAT OF SANCTIONS MAY DETER . . . ALMOST AS POTENTLY AS THE

  ACTUAL APPLICATION OF SANCTIONS.'  N.A.A.C.P. V. BUTTON, SUPRA,

  AT 433.  THE DANGER OF THAT CHILLING EFFECT UPON THE EXERCISE OF

  VIATL FIRST AMENDMENT RIGHTS MUST BE GUARDED AGAINST BY SENSITIVE

  TOOLS WHICH CLEARLY INFORM (PUBLIC EMPLOYEES) WHAT IS BEING

  PROSCRIBED." 

BY THE UNCERTAINTY OF ITS SCOPE, THE STANDARD HERE CREATES THE VERY
DANGER OF A CHILLING EFFECT THAT CONCERNED THE COURT IN KEYISHIAN. 
/32/  EMPLOYEES ARE LIKELY TO LIMIT THEIR BEHAVIOR TO THAT WHICH IS
UNQUESTIONABLY SAFE, FOR "THE THREAT OF DISMISSAL FROM PUBLIC
EMPLOYMENT IS . . .A POTENT MEANS OF INHIBITNG SPEECH."  PICKERING, 391
U.S., AT 574.  THE DISMISSAL STANDARD HANGS OVER THEIR HEADS LIKE A
SWORD OF DAMOCLES, THREATENING THEM WITH DISMISSAL FOR ANY SPEECH THAT
MIGHT IMPAIR THE "EFFICIENCY OF THE SERVICE."  THAT THIS COURT WILL
ULTIMATELY VINDICATE AN EMPLOYEE IF HIS SPEECH IS CONSTITUTIONALLY
PROTECTED IS OF LITTLE CONSEQUENCE--FOR THE VALUE OF A SWORD OF
DAMOCLES IS THAT IT HANGS--NOT THAT IT DROPS.  FOR EVERY EMPLOYEE WHO
RISKS HIS JOB BY TESTING THE LIMITS OF THE STATUTE, MANY MORE WILL
CHOOSE THE CAUTIOUS PATH AND NOT SPEAK AT ALL. 

THE DISTRICT COURT FOUND THAT "(BECAUSE EMPLOYEES FACED WITH THE
STANDARD OF 'SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE'
CAN ONLY GUESS AS TO WHAT UTTERANCES MAY COST THEM THEIR JOBS, THERE
CAN BE LITTLE QUESTION THAT THEY WILL BE DETERRED FRO EXERCISING THEIR
FIRST AMENDMENT RIGHTS TO THE FULLEST EXTENT."  I AGREE WITH THAT
CHARACTERIZATION OF THE EFFECT OF THE STANDARD AND WOULD, THEREFORE,
UPHOLD THE CONCLUSION OF THE DISTRICT COURT THAT THE STATUTE IS
UNCONSTITUTIONALLY VAGUE AND OVERBROAD. 

I RESPECTFULLY DISSENT. 

/1/  5 U.S.C. 7501. 

/2/  ONE NOTED COMMENTATOR HAS OBSERVED THAT: 

"CHANGES IN THE FORMS OF WEALTH ARE NOT REMARKABLE IN THEMSELVES;
THE FORMS ARE CONSTANTLY CHANGING AND DIFFER IN EVERY CULTURE.  BUT
TODAY MORE AND MORE OF OUR WEALTH TAKES THE FORM OF RIGHTS OR STATUS
RATHER THAN OF TANGIBLE GOODS.  AN INDIVIDUAL'S PROFFESSION OR
OCCUPATION IS A PRIME EXAMPLE.  TO MANY OTHERS, A JOB WITH A PARTICULAR
EMPLOYER IS THE PRINCIPAL FORM OF WEALTH.  AP PROFESSION OR JOB IS
FREQUENTLY FAR MORE VALUABLE THAN A HOUSE OR BANK ACCOUNT, FOR A NEW
HOUSE CAN BE BOUGHT, AND A NEW BANK ACCOUNT CREATED, ONCE A PROFESSION
OR JOB IS SECURE."  REICH, THE NEW PROPERTY, 73 YALE L.J. 733, 738
(1964). 

"SOCIETY TODAY IS BUILT AROUND ENTITLEMENT (AND MANY OF THE MOST
IMPORTANT OF THESE ENTITLEMENTS NOW FLOW FROM GOVERNMENT . . . . SUCH
SOURCES OF SECURITY . . . . ARE NO LONGER REGARDED AS LUXURIES OR
GRATUITIES; TO THE RECIPIENTS THEY ARE ESSENTIALS, FULLY DESERVED, AND
IN NO SENSE A FORM OF CHARITY."  REICH, INDIVIDUAL RIGHTS AND SOCIAL
WELFARE: THE EMERGING LEGAL ISSUES, 74 YALE L.J. 1245 (1965).     /3/
BOARD OF REGENTS V. ROTH, 408 U.S. 564, 576 - 578 (1972); PERRY V.
SINDERMANN, 408 U.S. 593 - 603 (1972). 

/4/  WILKIE V. O'CONNOR, 261 APP. DIV. 373, 375, 25 N.Y.S. 2D 617,
620 (1941). 

/5/  THE MECHANISM FOR WELFARE TERMINATIONS IS DESCRIBED IN GOLDBERG
V. KELLY, 397 U.S. 254 - 260 (1970).  IN SHORT, THE PROCEDURE INVOLVED
PRIOR NOTICE AND AN OPPORTUNITY TO RESPOND IN WRITING BEFORE
TERMINATION AS WELL AS A FULL TRIAL-TYPE HEARING BEFORE AN INDEPENDENT
STATE OFFICIAL AFTER THE TERMINATION HAD BEEN EFFECTED.  IF THE
RECIPIENT PREVAILED AT THE LATER HEARIGN HE WOULD BE ENTITLED TO
RECOVER ANY FUNDS WRONGFULLY WITHHELD.     /6/  ALTHOUGH PERRY V.
SINDERMANN, SUPRA, DID NOT INVOLVE A STATUTORILY CREATED INTEREST, IT
IS PLAINLY ANALOGOUS IN THAT THE DE FACTO TENURE PROGRAM ON WHICH
SINDERMANN'S CLAIM OF ENTITLEMENT WAS GROUNDED DID NOT EXPLICITLY
INCLUDE THE RIGHT TO A HEARING. 

/7/  IN A LEADING CASE DECIDED MANY YEARS AGO, THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT HELD THAT PROCEDURAL DUE PROCESS
PROTECTIONS DID NOT APPLY TO GOVERNMENT EMPLOYMENT BECAUSE IT WAS
MERELY A PRIVILEGE AND NOT A RIGHT.  BAILEY V. RICHARDSON, 86 U.S. APP.
D.C. 248, 182 F.2D 46 (1950), AFF'D BY AN EQUALLY DIVIDED COURT, 341
U.S. 918 (1951).  AS WE HAVE PREVIOUSLY OBSERVED, "(THE BASIS OF THIS
HOLDING HAS BEEN THOROUGHLY UNDERMINED IN THE ENSUING YEARS."  BOARD OF
REGENTS V. ROTH, 408 U.S., AT 571 N. 9.  "(THE COURT HAS FULLY AND
FINALLY REJECTED THE WOODEN DISTINCTION BETWEEN 'RIGHTS' AND
'PRIVILEGES' . . . ."  ID., AT 571.  FOR EXAMPLE, THE COURT HAS FOUND
CONSTITUTIONAL RESTRAINTS APPLICABLE TO DISQUALIFICATION FOR
UNEMPLOYMENT COMPENSATION, SHERBERT V. VERNER, 374 U.S. 398 (1963);
DENIAL OF A TAX EXEMPTION, SPEISER V. RANDALL, 357 U.S. 513 (1958);
TERMINATION OF WELFARE BENEFITS, GOLDBERG V. KELLY, SUPRA; AND
DISMISSAL FROM PUBLIC EMPLOYMENT, E.G., SLOCHOWER V. BOARD OF HIGHER
EDUCATION, 350 U.S. 551 (1956). 

/8/  MERRILL, REPORT IN SUPPORT OF RECOMMENDATION 72 - 8, PROCEDURES
FOR ADVERSE ACTIONS AGAINST FEDERAL EMPLOYEES, IN 2 RECOMMENDATIONS AND
REPORTS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 1007,
1015 (1972) (HEREINAFTER MERRILL). 

/9/  IBID.  THE REPORT OF THE ADMINISTRATIVE CONFERENCE SEEMS TO
BEAR OUT MY BROTHER DOUGLAS' RECENT OBSERVATION THAT:  "ONCE THERE IS A
DISCHARGE FROM A . . . FEDERAL GENCY, DISMISSAL MAY BE A BADGE THAT
BARS THE EMPLOYEE FROM OTHER FEDERAL EMPLOYMENT.  THE SHADOW OF THAT
DISCHARGE IS CASE OVER THE AREA WHERE PRIVATE EMPLOYMENT MAY BE
AVAILABLE."  SAMPSON V. MURRAY, 415 U.S. 61, 95 (1974) (DISSENTING). 

/10/  MERRILL 1014 N. 33. 

/11/  THIS CASE PRESENTS NO QUESTION AS TO THE REQUIREMENTS OF DUE
PROCESS "WHERE THERE ARE NO FACTUAL ISSUES IN DISPUTE OR WHERE THE
APPLICATION OF THE RULE OF LAW IS NOT INTERTWINED WITH FACTUAL
ISSUES."  GOLDBERG V. KELLY, 397 U.S., AT 268 N. 15; SEE MILLS V.
RICHARDSON, 464 F.2D 995, 1001 (CA2 1972); CF. FCC V. WJR, 337 U.S.
265, 275 - 277 (1949); 1 K. DAVIS, ADMINISTRATIVE LAW TREATISE 412
(1958). 

/12/  SEE ANTE, AT 137 - 138.  CF. T. ARNOLD, FAIR FIGHTS AND FOUL
151 (1965) (DESCRIBING THE POTENTIAL ABUSE IN A SITUATION WHERE THE
HEAD OF A DEPARTMENT IS THE DECISIONMAKER IN A PUBLIC EMPLOYEE
DISCHARGE PROCEEDING). 

/13/  THE DISCHARGED EMPLOYEE IS ENTITLED TO A FULL TRIAL-TYPE
PROCEEDING BEFORE A SINGLE EXAMINER WHO MAY NOT OCCUPY A POSITION
DIRECTLY OR INDIRECTLY UNDER THE JURISDICTION OF THE OFFICIAL WHO
PROPOSED THE DISMISSAL OR WHO BEARS ULTIMATE RESPONSIBILITY FOR THAT
DECISION.  THE EXAMINER'S DECISION IS AFFORDED SUBSTANTIAL WEIGHT; IF
IT IS REJECTED, THE REJECTION MUST BE ACCOMPANIED BY A FULL STATEMENT
OF REASONS THAT IS SUBJECT TO REVIEW.  BOTH THE EMPLOYEE AND THE AGENCY
MAY PRODUCE, EXAMINE, AND CROSS-EXAMINE WITNESSES UNDER OATH OR
AFFIRMATION AND DOCUMENTARY EVIDENCE MAY ALSO BE INTRODUCED.  RIGOROUS
TRIAL FORMALITY IS AVIODED AND CARE TAKEN NOT TO PLACE AN UNCOUNSELED
EMPLOYEE AT A DISADVANTAGE.  SEE MERRILL 1038 - 1040; 5 CFR 771.211
(1972). 

/14/  THE PROCEDURE IN GOLDBERG ALSO INVOLVED A PRETERMINATION RIGHT
OF REPLY AND A FULL TRIAL-TYPE HEARING AFTER TERMINATION, SEE N. 5,
SUPRA, BUT THE SCHEME WAS NONETHELESS FOUND NOT TO SATISFY DIE PROCESS
REQUIREMENTS AND A FULL PRETERMINATION HEARING WAS REQUIRED.  SEE
O'NEIL, OF JUSTICE DELAYED AND JUSTICE DENIED; THE WELFARE PRIOR
HEARING CASES, 1970 SUP. CT. REV. 161, 169. 

/15/  SEE N. 9, SUPRA, AND N. 19, INFRA. 

/16/  BOTH MR. JUSTICE REHNQUIST AND MR. JUSTICE WHITE DISMISS THE
NEED FOR A FULL PRIOR HEARING PARTIALLY BY REFERENCE TO THE COURT'S
DECISION IN CAFETERIA WORKERS V. MCELROY, 367 U.S. 886 (161).  THAT
CASE IS ENTIRELY INAPPOSITE.  FIRST, IT INVOLVED NOT THE DISMISSAL FOR
CAUSE OF A TENURED CIVIL SERVICE EMPLOYEE, BUT RATHER THE WITHDRAWAL OF
THE SECURITY CLEARANCE OF THE EMPLOYEE OF A PRIVATE CONTRACTOR, WHICH,
IN EFFECT, BARRED THE WORKER FORM HER JOB IN THE COMMISSARY AT A
MILITARY BASE.  THE EMPLOYER WAS PREPARED TO EMPLOY THE WORKER AT
ANOTHER OF HIS RESTAURANTS, SO THE WITHDARAWAL OF HER SECURITY
CLEARANCE WAS NOT APT TO CAUSE THE SERIOUS FINANCIAL HARDSHIP THAT
APPELLEE'S DISMISSAL FROM PUBLIC EMPLOYEMENT MIGHT ENTAIL.  SEE BOARD
OF REGENTS V. ROTH, 408 U.S., AT 584 - 585 (DOUGLAS, J., DISSENTING). 
MOREOVER, THE COURT HAS SINCE READ CAFETERIA WORKERS TO BE A CASE WHERE
THE GOVERNMENT'S "EXCEPTIONAL" INTEREST IN NATIONAL SECURITY JUSTIFIED
AN ABRIDGEMENT OF THE RIGHT TO A HEARING.  FUENTES V. SHEVIN, 407 U.S.
67, 91 N. 23 (1972); SEE BODDIE V. CONNECTUCUT, 401 U.S. 371, 379
(1971). 

/17/  MERRILL 1014 N. 33. 

/18/  ID., AT 1016. 

/19/  MY BROTHER REHNQUIST ARGUES THAT THE STIGMA IMPOSED BY
DISMISSAL IS ONLY TERMPORARY IN THAT THE DISCHARGED EMPLOYEE CAN CLEAR
HIS NAME AT THE POST-HOC HEARING, HENCE DOES NOT "FORECLOSE HIS FREEDOM
TO TAKE ADVANTAGE OF OTHER EMPLOYMENT OPPORTUNITIES."  BOARD OF REGENTS
V. ROTH, 408 U.S., AT 573; SEE N. 9, SUPRA.  BUT THE STIGMA OF
OUTSTANDING CHARGES WOULD NONETHELESS BE BORNE BY THE EMPLOYEE IN THE
INTERIM PERIOD WHILE HE WAITS FOR HIS HEARING AND SEEKS ALTERNATIVE
EMPLOYEMENT TO TIDE HIMSELF OVER. 

/20/  SEE, E.G., HEARINGS ON POSTAL LABOR RELATIONS AND EMPLOYEE
MORALE BEFORE THE SUBCOMMITTEE ON POSTAL OPERATIONS OF THE HOUSE
COMMITTEE ON POST OFFICE AND CIVIL SERVICE, 91ST CONG., 1ST SESS.
(1969); KENNEDY, ADVERSE ACTIONS IN THE AGENCIES--WORDS AND DEEDS-
POSTAL ADVERSE ACTION PROCEDURES, 19 AM. U.L. REV. 398, 412 (1970). 

/21/  SEE E.G., ILL. REV. STAT., C. 48 432 (1973); SEE CHRISTIAN V.
DEPT. OF LABOR, 414 U.S. 416 (1973). 

/22/  SEE MANDATE FOR MERIT: 1972 ANNUAL REPORT OF THE UNITED STATES
CIVIL SERVICE COMMISSION 64 - 65. 

/23/  SEE, E.G., CENTRAL UNION TRUST CO. V. GARVAN, 254 U.S. 554,
566 (1921); PHILLIPS V. COMMISSIONER, 283 U.S. 589, 597 (1931); EWING
V. MYTINGER & CASSLEBERRY, 339 U.S. 594 (1950). 

/24/  MERRILL 1056. 

/25/  RECOMMENDATION 72 - 8, ADVERSE ACTIONS AGAINST FEDERAL
EMPLOYEES, IN 2 RECOMMENDATIONS AND REPORTS OF THE ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES 73 - 75 (1972). 

/26/  MERRILL 1017, 1056 - 1057, 1060.  SCHEDULING PROBLEMS MIGHT BE
LARGELY OVERCOME BY MORE SKILLFUL USE OF PERSONNEL.  SEE GOLDBERG V.
KELLY, 397 U.S., AT 266. 

/27/  AS WE OBSERVED, ID., AT 257 N. 14, DUE PROCESS DOES NOT, OF
COURSE, REQUIRE TWO HEARINGS.  UNDER CURRENT PROCEDURES, AN EMPLOYEE IS
AFFORDED ONE AND SOMETIMES TWO POST-HOC EVIDENTIARY HEARINGS (ONE
BEFORE THE AGENCY AND THE OTHER BEFORE THE CIVIL SERVICE COMMISSION). 
SEE MERRILL 1013, 1043.  IF AN ADEQUATE REVIEW MECHANISM IS MAITAINED,
A SINGLE PRETERMINATION HEARING MIGHT OBVIATE THE NEED FOR THESE LATER
PROCEEDINGS. 

/28/  SEE, E.G., U.S. DEPT. OF JUSTICE, ADVERSE ACTION HEARING,
APPEALS AND GRIEVANCE POLICIES AND REGULATIONS, C. 2 (SEPT. 28, 1972);
RECOMMENDATION 72 - 8, N. 25, SUPRA, AT B, 74.  THE NOTICE REQUIREMENT
NEED NOT BE ANY IMPEDIMENT TO HELDING THE HEARING WITHIN THE 30-DAY
PERIOR.  IN GOLDBERG V. KELLY, SUPRA, AT 268, FOR EXAMPLE, THE COURT
FOUND A SEVEN-DAY PERIOD BETWEEN NOTICE AND TERMINATION HEARING
CONSTITUTIONALLY PERMISSIBLE. 

/29/  MERRILL 1033. 

/30/  OTHER CASES IN THIS AREA HARDLY PROVIDE SUBSTANTIAL GUIDANCE
AS TO WHAT SPEECH IS OR IS NOT PROTECTED.  SEE, E.G., PICKERING V.
BOARD OF EDUCATION, 391 U.S. 563, 570 N. 3 (1968).  NOR DO THE EXTANT
REGULATIONS PROVIDE SUBSTANTIAL GUIDANCE; THEY MERELY REPEAT THE
LANGUAGE OF THE STATUTE AND PROVIDE EXAMPLES AS UNELUCIDATING AS THE
PARTICULAR REGULATION RELEVANT TO THIS CASE WHICH PROSCRIBED, "ANY
ACTION . . . WHICH MIGHT RESULT IN, OR CREATE THE APPEARANCE OF . . .
(C) IMPEDING GOVERNMENT EFFICIENCY OR ECONOMY . . . (OR) (F) AFFECTING
ADVERSELY THE CONFIDENCE OF THE PUBLIC IN THE INTEGRITY OF THE
GOVERNMENT."  5 CFR 733.201; SEE 45 CFR 1015.735 - 1. 

/31/  THE ADMINISTRATIVE CONFERENCE REPORT RESERVED PARTICULARLY
HARSH CRITISM FOR THE "EFFICIENCY OF THE SERVICE" STANDARD, TERMING IT
"DEFICIENT BOTH AS A GUIDE TO AGENCY MANAGEMENT AND AS A WARNING TO
EMPLOYEES OF THE SORTS OF BEHAVIOR THAT WILL GET THEM IN TROUBLE,"
WARNING THAT IT IS "AN INVITATION TO ABRITRARY ACTION BY GOVERNMENT
AGENCIES."  MERRILL 1054.  SEE ID ., AT 1053. 

/32/  FURTHER REFINEMENT OF THE STATUTORY "EFFICIENCY OF THE
SERVICE"  STANDARD, IS NOT, AS THE MAJORITY IMPLIES, IMPOSSIBLE.  THE
ADMINISTRATIVE CONFERENCE POINTS OUT THAT THE AGENCIES AND THE CIVIL
SERVICE COMMISSION "HAVE DEVELOPED A LARGE, STILL ESSENTIALLY SECRET
BODY OF LAW ON THE MEANING OF 'EFFIEIENCY.'"  MERRILL 1054.  REFERENCE
TO THIS BODY OF PRECEDENT MIGHT WELL SERVE AS A BASIS FOR THE
AMPLIFICATION OF THE STATUTORY STANDARD.  RELEVANT GUIDELINES MIGHT,
FOR EXAMPLE, DISTINGUISH BETWEEN STATEMENTS MADE IN AN OFFICIAL AS
OPPOSED TO A PRIVATE CAPACITY, SEE PICKERING V. BOARD OF EDUCATION, 391
U.S. 563 (1968); BETWEEN KNOWINGLY FALSE STATEMENTS AND THOSE WHICH ARE
REASONABLY BELIEVED TO BE TRUE, SEE, E.G., PICKERING, SUPRA, AT 569;
NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 280 (1964); CF. GARRISON
V. LOUISIANA, 379 U.S. 64 (1964); ROSENBLOOM V. METROMEDIA INC., 403
U.S. 29 (1971); AND BETWEEN STATEMENTS WHICH PERTAIN TO A LEGITIMATE
SUBJECT OF PUBLIC COMMENT AND THOSE WHICH DISCLOSE CONFIDENTIAL
GOVERNMENT INFORMATION, SEE PICKERING, SUPRA, AT 570 N. 3 AND 571 -
572; CF. TIMES, INC. V. HILL, 385 U.S. 374 (1967). 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR APPELLANTS.  ON THE BRIEF
WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL WOOD, KEITH A.
JONES, WALTER H. FLEICHER, AND WILLIAM KANTER. 

CHARLES BARNHILL, JR., ARGUED THE CUASE FOR APPELLEES.  WITH HIM ON
THE BRIEF WERE JUDSON H. MILNER AND LEO PELLERZI. 

MOZART G. RATNER AND JERRY D. ANKER FILED A BRIEF FOR THE NATIONAL
ASSOCIATION OF LETTER CARRIERS, AFL-CIO, ET AL. AS AMICI CURIAE URGING
AFFIRMANCE. 
..END :

















MAHON V. STOWERS, 416 U.S. 100 


       MAHON, TRUSTEE IN BANKRUPTCY, ET AL. V., STOWERS ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 73 - 1131.  DECIDED APRIL 15, 1974; CERTIORARI GRANTED;

           483 F.2D 557, REVERSED AND REMANDED. 


    RESPONDENTS SOLD CATTLE TO A MEAT PACKER AT ITS TEXAS PLANT AND

  RECEIVED CHECKS IN PAYMENT, BUT THE PACKER WAS ADJUDGED A

  BANKRUPT BEFORE THE CHECKS WERE PAID.  WITH THE CONSENT OF ALL

  PARTIES, THE RECEIVER AND TRUSTEE IN BANKRUPTCY CONTINUED TO SELL

  MEAT OF CATTLE SLAUGHTERED AND PACKAGED BY THE BANKRUPT AND HELD

  THE SALE PROCEEDS SUBJECT TO DISPOSTITION BY THE REFEREE. 

  RESPONDENTS THEN SOUGHT RECLAMATION OF THE CATTLE SOLD TO THE

  BANKRUPT, AND ASSERTED A CONCOMITANT RIGHT TO THE SALE PROCEEDS. 

THIS CLAIM WAS OPPOSED BY THE TRUSTEE AND C.I.T. CORPORATION,

  WHICH HELD A PERFECTED LIEN ON THE BANKRUPT'S INVENTORY AND OTHER

  PROPERTY.  THE REFERREE SUSTAINED THE RESPONDENTS' POSITION, BUT

  THE DISTRICT COURT REVERSED ON THE GROUND THAT UNDER THE TEXAS

  BUSINESS AND COMMERCIAL CODE THE TRUSTEE'S AND C.I.T.'S CLAIMS

  WERE SUPERIOR TO THAT OF RESPONDENTS, WHO BE DELIVERING THE

  CATTLE TO THE BANKRUPT RETAINED ONLY AN UNPERFECTED SECURITY

  INTEREST SUBJECT TO THE PACKERS AND STOCKYARDS ACT, ALONG WITH

  THE IMPLEMENTING REGULATIONS AND TRADE USAGES, ESTABLISHED THE

SUPERIORITY OF RESPONDENTS'  CLAIM NOTWITHSTANDING TEXAS LAW BY

  MAKING THE BANKRUPT A TRUSTEE OF THE PROCEEDS RECEIVED FROM THE

  SALE OF THE CATTLE DELIVERED BY RESPONDENTS.  HELD: 

     (1) ON THE FACTS, NOTHING IN EITHER THE SPECIFIC SECTION OF
THE

  PACKERS AND STOCKYARDS ACT RELATING TO PACKERS OR IN THE GENERAL

  SECTIONS OF THE ACT APPLYING TO ALL PERSONS SUBJECT TO THE ACT,

  OR IN THE IMPLEMENTING REGULATIONS, EX PROPRIA VIGORE OVERRIDES

  THE TEXAS BUSINESS AND COMMERICAL CODE IN DETERMINING THE

  PARTIES'  RESPECTIVE RIGHTS TO THE FUNDS HELD BY THE TRUSTEE OR

  ESTABLISHES A SPECIAL PRIORITY IN BANKRUPTCY. 

     (A) AN ORDINARY DEBTOR-CREDITOR RELATIONSHIP REQUIRES MORE
THAN

  POST-BANKRUPTCY DISAPPOINTMENT OF THE CREDITOR TO CONVERT IT INTO

  A TRUST RELATIONSHIP.  MCKEE V. PARADISE, 299 U.S. 119.  (B)

  ALTHOUGH THE PACKERS AND STOCKYARDS ACT REGULATES METHODS OF

  PAYMENT AND RECORDKEEPING PROCEDURES FOR PACKERS, THE ACT WAS

  PRIMARILY AIMED AT THE MONOPOLY OF THE PACKERS WHICH ENABLE THEM

  ARBITRARILY TO LOWER PRICES TO SHIPPERS AND INCREASE THE PRICE TO

  CONSUMERS, AND THERE IS NO EVIDENCE IN EITHER THE ACT OR THE

  REGULATIONS THAT PACKERS ARE TO HOLD CATTLE OR CARCASSES IN TRUST

  UNTIL THE SELLERS ACTUALLY CONVERT INTO CASH THE CHECKS GIVEN

THEM AS PAYMENT FOR EACH SALE. 

     (2) BUT A COURSE OF CONDUCT MANDATED BY THE ACT OR REGULATIONS

  MIGHT BE RELEVANT OR EVEN DISPOSITIVE UNDER STATE LAW IN

  DETERMINING PRORITIES TO THE FUNDS IN QUESTION, AND HENCE TO THE

  EXTENT THAT RESPONDENTS IN APPEALING TO THE COURT OF APPEALS

CHALLENGED THE DISTRICT COURT'S DETERMINATION TO THE CONTRARY,

  SUCH DETERMINATION WILL BE OPEN FOR ADJUDICATION ON REMAND. 

PER CURIAM. 

THIS LITIGATION AROSE OUT OF THE BANKRUPTCY OF SAMUELS & CO., A
LARGE MEAT PACKING CONCERN WITH PLANTS IN VARIOUS PARTS OF TEXAS. 
RESPONDENTS HAD SOLD CATTLE TO SAMUELS, FOR WHICH THEY RECEIVED CHECKS
IN PAYMENT, BUT BANKRUPTCY ENSUED BEFORE THE CHECKS HAD BEEN PAID BY
THE DRAWEE BANK.  WITH CONSENT OF ALL PARTIES THE RECEIVER AND THE
TRUSTEE OF THE BANKRUPT ESTATE CONTINUED TO SELL MEAT FROM THE CATTLE
THAT HAD BEEN SLAUGHTERED AND PACKAGED BY SAMUELS AND HELD THE PROCEEDS
OF SUCH SALES SUBJECT TO DISPOSITION BY THE REFEREE.  RESPONDENTS
SOUGHT RECLAMATION OF THE CATTLE WHICH THEY HAD SOLD TO SAMUELS, AND
ASSERTED A CONCOMITANT RIGHT TO THE PROCEEDS FROM SALE OF THE PACKAGED
MEAT.  C.I.T. CORPORATION, WHICH HELD A PERFECTED LIEN ON THE
BANKRUPT'S INVENTORY AND OTHER PROPERTY, AND THE TRUSTEE IN BANKRUPTCY
OPPOSED THE RESPONDENTS' CLAIM. 

THE REFEREE MADE FINDINGS OF FACT AND CONCLUSIONS OF LAW WHICH
SUSTAINED THE RESPONDENTS' POSITION.  THE DISTRICT COURT UPHELD THE
REFEREE'S FINDINGS OF FACT, BUT REVERSED THE JUDGMENT ON THE GROUNDS
THAT UNDER THE APPLICABLE PROVISIONS OF THE TEXAS BUSINESS AND
COMMERCIAL CODE THE CLAIMS OF THE TRUSTEE AND C.I.T WERE SUPERIOR TO
THAT OF RESPONDENTS.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT,
HOWEVER, AGREED WITH THE REFEREE AND REVERSED THE DISTRICT COURT
JUDGMENT BECAUSE IT READ THE PACKERS AND STOCKYARDS ACT, 42 STAT. 159,
7 U.S.C. 181 ET SEQ., AND CERTAIN REGULATIONS ISSUED BY THE SECRETARY
OF AGRICULTURE THEREUNDER, AS ESTABLISHING THE SUPERIORITY OF
RESPONDENTS' CLAIM NOTWITHSTANDING TEXAS LAW.  WE DISAGREE WITH THIS
READING OF THE APPLICABLE PROVISIONS OF THE PACKERS AND STOCKYARDS ACT,
AND THEREFORE GRANT CERTIORARI AND REVERSE THE JUDGMENT OF THE COURT OF
APPEALS. 

        I 

THE UNCONTESTED FACTS IN THIS CASE ARE CONTAINED IN THE FINDINGS OF
THE BANKRUPTCY REFEREE.  THE REFEREE FOUND THAT RESPONDENTS, FOR A
PERIOD OF SOME TEN DAYS BEFORE SAMUELS FILED A CHAPTER XI PETITION
UNDER THE BANRUPTCY ACT, HAD BEEN SELLING LIVE CATTLE TO SAMUELS FOR
SLAUGHTER ON A "GRADE AND YIELD" BASIS, AND THAT THIS WAS A RECOGNIZED
CUSTOM AND USAGE IN THE TRADE.  UNDER THIS USAGE THE CONTRACT PRICE IS
LEFT OPEN AT THE TIME OF DELIVERY TO THE PURCHASER, WHO SLAUGHTERS THE
LIVESTOCK AND ALLOWS THE CARCASSES TO CHILL FOR APPROXIMATELY 24
HOURS.  AT THAT TIME THEY ARE GRADED BY THE UNITED STATES DEPARTMENT OF
AGRICULTURE AND THE PRICE IS DETERMINED.  THE PURCHASER THEN GIVES THE
SELLER A CHECK FOR THE ESTABLISHED AMOUNT.  THE REFEREE FUTHER FOUND
THAT SAMUELS WAS SUBJECT TO THE REGULATIONS OF THE PACKERS AND
STOCKYARDS ACT, AND THAT ALL OF THE LIVESTOCK IN QUESTION HAD BEEN
DELIVERED TO SAMUELS AT ITS PLANT IN MOUNT PLEASANT, TEXAS, WHERE IT
WAS SLAUGHTERED AND THEN GRADED BY THE DEPARTMENT OF AGRICULTURE. 

UNTIL THE LIVESTOCK IS ACTUALLY GRADED AND THE YIELD DETERMINED, THE
SELLERS CAN IDENTIFY THEIR PARTICULAR LIVESTOCK, BUT ONCE THE CARCASSES
ARE PROCESSED AND THE MEAT PACKAGED, IDENTIFICATION IS NO LONGER
POSSIBLE.  WHEN THE PETITION FOR BANKRUPTCY WAS FILED IN THIS CASE,
NONE OF THE RESPONDENTS WAS ABLE TO IDENTIFY HIS OWN PARTICULAR
LIVESTOCK, BUT THE REFEREE FOUND THAT AT LEAST SOME OF THE CARCASSES
SOLD BY RESPONDENTS WERE ON SAMUELS'  PREMISES AT THAT TIME.  THE
REFEREE ALSO DETERMINED THAT NO PROCEEDS FROM SALE OF PACKAGED MEAT
COULD BE IDENTIFIED AS REALIZED FROM CARCASSES DELIVERED BY
RESPONDENTS. 

EXAMINING THE COMPETING CLAIMS, THE REFEREE FOUND THAT AT ALL TIMES
MATERIAL TO THE ACTION C.I.T. WAS THE HOLDER OF A DULY PERFECTED
SECURITY INTEREST IN ALL LIVESTOCK, ANIMAL CARCASSES, PACKAGED AND
UNPACKAGED MEAT, PACKING MATERIALS, AND OTHER INVENTORY OWNED BY
SAMUELS OR IN WHICH SAMUELS MAY HAVE HAD AN INTEREST.  AT THE TIME THE
BANKRUPTCY PETITION WAS FILED SAMUELS WAS INDEBTED TO C.I.T. IN AN
AMOUNT IN EXCESS OF $1,800,000.  C.I.T. HAD BEEN ADVANCING LARGE SUMS
WEEKLY TO SAMUELS, AND THE BANKRUPTCY WAS PRECIPITATED ON MAY 23, 1969,
WHEN C.I.T., DEEMING ITSELF TO BE INSECURE, REFUSED TO MAKE A WEEKLY
ADVANCE OF APPROXIMATELY $184,000 WHICH SAMUELS NEEDED TO CONTINUE ITS
OPERATIONS.  THE REFEREE FOUND THAT C.I.T. "KNEW OR SHOULD HAVE KNOWN"
OF THE METHOD BY WHICH SAMUELS BOUGHT LIVESTOCK FROM RESPONDENTS ON A
GRADE-AND-YEILD BASIS.  HE FURTHER FOUND THAT NO RESPONDENT HELD A
SECURITY AGREEMENT WITH SAMUELS, AND THAT NONE HAD FILED A FINANCING
STATEMENT REFLECTING THE TRANSACTIONS WITH SAMUELS. 

THE REFEREE REASONED FROM THESE FACTS THAT RESPONDENTS AND SAMUELS
HAD INTENDED TO TRANSACT THEIR SALES BUSINESS ON A CASE, RATHER THAN A
CREDIT, BASIS, AND THAT TITLE TO THE LIVESTOCK "DID NOT PASS FROM
PLAINTIFF TO BANKRUPT UNTIL PAYMENT WAS MADE TO PLAINTIFF."  THEREFORE,
HE CONCLUDED, C.I.T.'S PERFECTED LIEN COULD NOT ATTACH TO THE LIVESTOCK
IN SAMUELS' INVENTORY UNTIL THE CHECKS ISSUED IN PAYMENT WERE
SUBSEQUENTLY HONORED.  ANY OTHER DECISION WOULD, HE SAID, MAKE THE
CATTLE SELLERS "A SPECIES OF INVOLUNTARY CREDITOR AGAINST THEIR WISHES
AND INTENT," ALTHOUGH THEY HAD COMPLIED WITH NORMAL SELLING
ARRANGEMENTS UNDER THE PACKERS AND STOCKYARDS ACT.  HE FOUND IT
UNNECESSARY FOR THE RESPONDENTS TO IDENTIFY PROCEEDS FROM THE SALE OF
SPECIFIC CARCASSES WHICH THEY HAD DELIVERED, AND PLACED THE DUTY ON
C.I.T TO SHOW THAT THE FUNDS TO WHICH IT LAID CLAIM HAD NOT BEEN
RECEIVED FROM THE SALE OF CARCASSES FURNISHED BY RESPONDENTS. 

THE DISTRICT COURT ACCEPTED THE REFERREE'S FINDINGS OF FACT BUT
REVERSED ON THE LAW.  TURNING TO THE PROVISIONS OF THE TEXAS BUSINESS
AND COMMERCIAL CODE, WHICH ARE LARGELY COUNTERPARTS OF THE UNIFORM
COMMERCIAL CODE, THE COURT FOUND THAT THE RESPONDENTS BY THEIR DELIVERY
OF THE CATTLE HAD RETAINED ONLY A SECURITY INTEREST IN THOSE ANIMALS
AND THE PROCEEDS THEREFROM.  /1/  IT FURTHER FOUND THAT THE RESPONDENTS
HAD TAKEN NO ACTION TO PERFECT THEIR SECURITY INTEREST /2/  NOR
ATTEMPTED TO UTILIZE ANY RIGHT OF RECLAMATION THEY MIGHT HAVE HAD UNDER
TEXAS LAW.  /3/  DELIVERY OF THE CATTLE TO SAMUELS ON THIS BASIS
ENABLED IT TO TRANSFER GOOD TITLE TO A GOOD-FAITH PURCHASER FOR VALUE,
A CATEGORY OF PERSONS WHICH INCLUDED BOTH C.I.T. AND THE TRUSTEE IN
BANKRUPTCY.  /4/  THE DISTRICT COURT ALSO FOUND THAT RESPONDENTS WERE
UNABLE TO "ESTABLISH THEIR RIGHT TO POSSESSION BY OWNERSHIP . . .(BY)
INDENTIFYING) POSITIVELY THE PROPERTY SOUGHT TO BE RECLAIMED IN EITHER
ITS ORIGINAL OR SUBSTITUTED FORM." 

THE DISTRICT WAS IN TURN REVERSED BY A DIVIDED COURT OF APPEALS FOR
THE FIFTH CIRCUIT.  ALTHOUGH THAT COURT CONCEDED THAT C.I.T. WOULD HAVE
A SUPERIOR RIGHT TO THE SALES PROCEEDS WERE THE TRANSACTION GOVERNED
SOLELY BY THE PROVISIONS OF THE TEXAS UNIFORM COMMERCIAL CODE, IT FOUND
THAT THE PACKERS AND STOCKYARDS ACT, 7 U.S.C. 181 ET SEQ., ALONG WITH
THE REGULATIONS PROMULGATED THEREUNDER AND THE RELEVANT USAGES OF
TRADE, MADE SAMUELS A TRUSTEE OF THE PROCEEDS RECEIVED FROM THE SALE OF
CATTLE DELIVERED BY RESPONDENTS.  THE COURT STATED: 

"THE REASONING OF THESE CASES AND THE IMPACT OF THE PACKERS AND
STOCKYARDS ACT CONVINCES THIS COURT THAT MORE THAN AN UNPERFECTED
SECURITY INTEREST SUBJECT TO RECLAMATION IS RESERVED FOR THE CATTLE
SELLER.  NOT BY CONTRACT BUT BY STATUTE AND REGULATION A PACKER LACKS
FULL DOMINION OVER THE CARCASSES UNTIL THE SELLER HAS BEEN PAID.  WHERE
THE PACKER DEFAULTS BY THE ISSUANCE OF A BAD CHECK (AND DESTROYS THE
IDENTITY OF THE SECURITY BY PROCESSING THE CARCASSES INTO FUNGIBLE MEAT
PRODUCTS), THE SELLER IS THE BENEFICIARY OF A TRUST IMPOSED BY REMEDIAL
STATUTE."  /5/ THE RIGHT OF THE CATTLE SELLERS TO FUNDS THUS FOUND TO
BE SPECIFICALLY HELD IN TRUST FOR THEIR BENEFIT WAS DEEMED SUPERIOR TO
THE GENERAL PERFECTED LIEN OF C.I.T ON SAMUELS' INVENTORY. 

        II 

THIS COURT HAS PREVIOUSLY HELD THAT AN ORDINARY DEBTOR-CREDITOR
RELATIONSHIP REQUIRES MORE THAN THE POST-BANKRUPTCY DISAPPOINTMENT OF
THE CREDITOR TO CONVERT IT INTO A TRUST RELATIONSHIP.  SEE MCKEE V.
PARADISE, 299 U.S. 119 (1936).  EXAMINING A CLAIM BY EMPLOYEES THAT
FUNDS HELD FOR THEIR GENERAL BENEGIT BY AN EMPLOYEE ASSOCIATION WERE
FUNDS HELD IN TRUST, THE COURT IN MCKEE STATED: 

"THE BANKRUPT WAS A DEBTOR WHICH HAD FAILED TO PAY ITS DEBT.  WE
KNOW OF NO PRINCIPLE UPON WHICH THAT FAILURE CAN BE TREATED AS A
CONVERSION OF PROPERTY HELD IN TRUST.  AT NO TIME THROUGHOUT THE WHOLE
PERIOD WAS THERE A TRUST FUND OR RES.  NO FUND WAS SEGREGATED OR SET UP
BY SPECIAL DEPOSIT OR IN ANY MANNER.  WHEN THE WAGES BECAME DUE, THERE
WAS NO SUCH FUND BUT ONLY THE GENERAL ASSETS OF THE EMPLOYER AND ITS
OBLIGATION TO PAY A DEBT.  . . THE FACT THAT THE FAILURE TO PAY THE
ASSOCIATION WAS AN ACUTE DISAPPOINTMENT AND WAS ESPECIALLY REGRETTABLE
AS THE CLAMINANT WAS AN ASSOCIATION OF EMPLOYEES, CANNOT AVAIL TO
CHANGE THE DEBTOR INTO A TRUSTEE OR ENABLE THE CREDITOR TO OBTAIN A
PREFERENCE OVER OTHER CLAIMS AGAINST A BANKRUPT ESTATE."  ID., AT 122 -
123.  THE COURT THEREFORE HELD THAT THE EMPLYEES WERE ENTITLED TO SHARE
IN THE BANKRUPT'S ASSETS ONLY IN THE POSITION OF AGENERAL UNSECURED
CREDITOR. 

SIMILARLY, WE BELIEVE THAT THE COURT OF APPEALS, IN CONCLUDING THAT
IN THIS CASE A TRUST RELATIONSHIP EXISTED BETWEEN SAMUELS AND
RESPONDENTS, PLACED MORE WEIGHT ON THE PACKERS AND STOCKYARDS ACT, AND
CORRESPONDING REGULATIONS AND PRACTICES, THAN THEY WELL PROPERLY BEAR. 
FOR ALTHOUGHT THE ACT DOES REGULATE METHODS OF PAYMENT AND
RECORDKEEPING PROCEDURES FOR PERSONS DEFINED AS "PACKERS" BY THE ACT,
WE MUST REMEMBER THAT THE "CHIEF EVIL" AT WHICH IT WAS AIMED WAS "THE
MONOPOLY OF THE PACKERS, ENABLING THEM UNDULY AND ARBITRARILY TO LOWER
PRICES TO THE SHIPPER WHO SELLS, AND UNDULY AND ARBITRARILY TO INCREASE
THE PRICE TO THE CONSUMER WHO BUYS."  STAFFORD V. WALLACE, 258 U.S.
495, 514 - 515 (1922).  WE FIND NO EVIDENCE IN EITHER THE ACT OR THE
REGULATIONS THAT PACKERS ARE TO HOLD CATTLE OR CARCASSES IN TRUST UNTIL
THE SELLERS ACTUALLY CONVERT INTO CASH THE CHECKS GIVEN THEM AS PAYMENT
FOR EACH SALE. 

WE NOTE AT THE OUTSET THAT SAMUELS IS SUBJECT TO THE PACKERS AND
STOCKYARDS ACT SOLELY AS A "PACKER"  /6/  RATHER THAN AS A "STOCKYARD
OWNER,"  /7/  "MARKET AGENCY,"  /8/  OR "DEALER."  /9/  THIS DIFFERENCE
IS IMPORTANT, FOR THE ACT REGULATES PACKERS IN A DEFFERENT MANNER THAN
IT DOES THOSE IN THE OTHER ENUMERATED CATEGORIES.  THUS, FOR EXAMPLE,
THE BONDING REQUIREMENTS OF 7 U.S.C. 204 ARE NOT APPLICABLE TO PACKERS,
NOR DOES THE ACT GIVE A PRIVATE CAUSE OF ACTION AGAINST PACKERS, AS IT
DOES AGAINST STOCKYARDS, MARKET AGENCIES, AND DEALERS.  7 U.S.C. 209. 
AN IMPLICIT FIDUCIARY OBLIGATION WHICH WOULD OVERRIDE STATE COMMERCIAL
LAW AND ESTABLISH A SPECIAL PRORITY IN BANKRUPTCY, SUCH AS THE COURT OF
APPEALS FOUND TO EXIST HERE, MUST THEREFORE BE EXTRACTED EITHER FROM
THE SPECIFIC SECTIONS RELATING TO PACKERS, OR FROM THE FEW GENERAL
THE ACT. 

THE SPECIFIC PROVISIONS DEALING WITH PACKERS IMPOSE NO SUCH DUTY. 
/10/  THE ONLY SECTION WHICH MIGHT POSSIBLY BE RELEVANT TO THIS
QUESTION, 7 U.S.C 192, DEALS GENREALLY WITH UNLAWFUL PRACTICES OF
PACKERS, PLACING HEAVY EMPHASIS ON PRACTICES WHICH MIGHT BE CONSIDERED
TO BE IN RESTRAINT OF TRADE.  ENFORCEMENT OF THIS SECTION IS THE
RESPONSIBILITY OF THE SECRETARY OF AGRICULTURE, WHO IS GIVEN AUTHORITY
TO HOLD HEARINGS AND ENTER BINDING ORDERS.  BUT THERE IS NO INDICATION
THAT, LURKING WITHIN THIS INTENTION TO CONTROL DESCEPTIVE AND
MONOPOLISTIC PRACTICES IN THE PACKING INDUSTRY, LIES A FURTHER
INTENTION TO GUARANTEE PERSONS WHO SELL CATTLE TO SUCH PACKERS A
SPECIAL FAVORED POSITION IN REGARD TO THE PACKERS' ASSETS.  NOR DO THE
GENERAL PROVISIONS SHOW SUCH AN INTENT.  /11/  THOSE SECTIONS ARE
PRIMARILY CONCERNED WITH RECORDKEEPING, ALLOCATION OF RESPONSIBILITY
BETWEEN THE SECRETARY OF AGRICULTURE AND THE FEDERAL TRADE COMMISSION,
AND THE AUTHORITY OF THE SECRETARY OF AGRICULTURE TO PROMULGATE
APPROPRIATE RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THE
ACT. 

THE COURT OF APPEALS DID NOT REST ITS DECISION UPON THE ACT ITSELF,
HOWEVER, BUT RATHER UPON TWO REGULATIONS PROMULGATED BY THE SECRETARY
OF AGRICULTURE.  THE FIRST REGULATION, 9 CFR 201.43 (B), /12/  REQUIRES
THAT A PACKER "BEFORE THE CLOSE OF THE NEXT BUSINESS DAY FOLLOWING THE
PURCHASE OF LIVESTOCK AND THE DETERMINATION OF THE AMOUNT OF THE
PURCHASE PRICE, TRANSMIT OR DELIVER TO THE SELLER OR HIS DULY
AUTHORIZED AGENT THE FULL AMOUNT OF THE PURCHASE PRICE, UNLESS
OTHERWISE EXPRESSLY AGREED BETWEEN THE PARTIES BEFORE THE PURCHASE OF
THE LIVESTOCK."  THE SECOND REGULATION, 9 CFR 201.99, /13/  REQUIRES A
PACKER "PURCHASING LIVESTOCK ON A . . . CARCASS GRADE AND WEIGHT BASIS"
TO "MAINTAIN THE IDENTITY OF EACH SELLER'S LIVESTOCK AND THE CARCASSES
THREEFROM" AND, AFTER DETERMINATION OF PURCHASE PRICE, TO DELIVER TO
THE SELLER A "TRUE WRITTEN ACCOUNT OF SUCH PURCHASE" INCORPORATING THE
PERTINENT TERMS.  THE COURT OF APPEALS REASONED THAT THESE REGULATIONS,
READ IN CONJUCTION, WERE INTENDED TO PROVIDE CATTLE SELLERS WITH
SPECIAL PROTECTION WHEN FORCED TO DEA ON A CARCASS GRADE-AND-WEIGHT
BASIS.  THE PROTECTION FASHIONED BY THE COURT OF APPEALS WAS TO MAKE A
PACKER, SUCH AS SAMUELS, A TRUSTEE FOR THE PROCEEDS OF ANY SALE DERIVED
FROM CATTLE DELIVERED UNDER THESE PROVISIONS.  WE BELIEVE THAT THAT
CONCLUSION WAS ERRONEOUS.     WE THINK THAT A FAIR READING OF 9 CFR
201.99 REVEALS ITS OVERRIDNIG CONCERN THAT CATTLE SELLERS, HAVING
DELIVERED THEIR LIVESTOCK INTO THE HANDS OF A PURCHASING PACKER PRIOR
TO ACTUAL DETERMINATION OF THE PURCHASE PRICE, RECEIVE A FAIR AND
ACCURATE ACCOUNTING OF THE PROCEEDS OF THEIR SALE.  A SELLER OPERATING
WITHOUT THE BENEFIT OF SUCH PROVISIONS CLEARLY WOULD FACE SUBSTANTIAL
RISK THAT HIS LIVESTOCK MIGHT BE MINGLED WITH OTHER LIVESTOCK OF LESSER
VALUE AND THEREBY BECOME INDISTINGUSHABLE FROM LIVESTOCK DELIVERED BY
OTHER SELLERS, OR THAT HE MIGHT BECOME SUBJECT TO ARBITRARY WEIGHING
PRACTICES ON THE PART OF THE PACKERS.  REGULATION 201.99 INSURES THAT
THE PACKERS BOTH OBSERVE PRINCIPLES OF FAIR DEALING IN DETERMINING THE
PROCEEDS OF THE SALE AND ALSO MAINTAIN SUFFICIENT RECORDS SO THAT THE
SELLERS AND THE SECRETARY OF AGRICULTURE CAN EXERCISE PROPER
SUPERVISION.  BUT THERE IS NO INDICATION IN THIS RECORD THAT SAMUELS
FAILED TO COMPLY WITH THE PROVISIONS OF REGULATION 201.99.  RESPONDENTS
COMPLAINED, NOT THAT SAMUELS COMMINGLED THEIR LIVESTOCK, OR FAILED TO
PROVIDE FAIR PRICING, BUT RATHER THAT BANKRUPTCY INTERVENED BEFORE
CHECKS IN THE CONCEDEDLY PROPER AMOUNT CLEARED THE BANK ON WHICH THEY
WERE DRAWN.  AND REGULATION 201.99 SIMPLY DOES NOT ADDRESS ITSELF TO
THIS PROBLEM. 

REGULATION 201.43, THOUGH MORE TO THE POINT, LIKEWISE FAILS TO
SUPPORT THE IMPOSITION OF A TRUST ON SAMUELS.  IT REQUIRES PACKERS,
MARKET AGENCIES, AND DEALERS PURCHASING LIVESTOCK TO MAKE PAYMENT
WITHIN ONE BUSINESS DAY FOLLOWING THE DETERMINATION OF THE AMOUNT OF
THE PURCHASE PRICE, BUT DOES NOT MEET THE QUESTION OF WHETHER A SELLER,
FAILING TO RECEIVE PAYMENT WITHIN THAT TIME, HAS A SPECIAL CLAIM
AGAINST THE DEFAULTING PAYOR.  RESPONDENTS ARGUE STRONGLY THAT THIS
PAYMENT IS A PROHIBITED DECEPTIVE PRACTICE UNDER THE ACT.  WHILE THIS
CONTENTION MAY WELL BE TRUE, IT DOES NOT NECESSARILY SUPPORT A
CONCLUSION THAT THE REGULATION, DESIGNED TO REGULATE PAYMENT PROCEDURES
BETWEEN A BUYER AND SELLER, WAS ALSO INTENDED TO DETERMINE SECURITY
RIGHTS BETWEEN THE SELLERS AND THIRD PARTIES HOLDING A VALID CLAIM ON
THE PACKER'S ASSETS.  WHATEVER MIGHT BE THE POLICY REASONS FOR INSURING
THAT PACKERS DID NOT TAKE UNNECESSARY ADVANTAGE OF CATTLE SELLERS BY
HOLDING FUNDS FOR THEIR OWN PURPOSES, IT IS HAD TO SEE THAT THOSE
REASONS WOULD AUTOMATICALLY REQUIRE THAT SUCH SELLERS STAND ON BETTER
FOOTING THAN PERSONS WHO HAVE EXTENDED SECURED CREDIT TO A PACKER.  AND
THE REGULATION IN NO WAY SUGGESTS AN INTENTION TO OVERRIDE ESTABLISHED
PRINCIPLES OF STATE COMMERCIAL LAW WHICH MIGHT STRIKE A DIFFERENT
BALANCE. 

WHEN THE SECRETARY HAS DESIRED TO IMPOSE TRUST RELATIONSHIPS BY
REGULATION, HE HAS CHOSEN LANGUAGE WHICH CLEARLY EFFECTUATES THAT
PURPOSE.  REGULATION 201.42, 9 CFR 201.42, DEALS SPECIFICALLY WITH THE
SUBJECT OF CUSTODIAL ACCOUNTS, AND PROVIDES IN SUBSECTION (A) THAT
PAYMENTS MADE TO A MARKET AGENCY OR LICENSEE ARE TO BE CONSIDERED TRUST
FUNDS UNTIL A PAYEE CUSTODIAL ACCOUNT HAS BEEN PAID IN FULL. 
SUBSECTION (B) REQUIRES THAT ANY MARKET AGENCY OR LICENSEE ENGAGED IN
SELLING LIVESTOCK "ON A COMMISSION OR AGENCY BASIS" ESTABLISH A
CUSTODIAL ACCOUNT FOR THE SALES PROCEEDS.  SUBSECTION (E) REQUIRES
ESTABLISHMENT OF CUSTODIAL ACCOUNTS WHEN MARKET AGENCIES OR LICENSEES
REPRESENTING BUYERS OF LIVESTOCK MISUSE FUNDS ENTRUSTED TO THEM FOR
THAT PURPOSE. 

HAD THE SECRETARY DEEMED IT LAWFUL AND DESIRABLE TO REQUIRE THAT
PACKERS OR OTHER PERSONS PURCHASING LIVESTOCK ESTABLISH TRUST ACCOUNTS
ON BEHALF OF THE SELLERS UNTIL PAYMENT WAS ACTUALLY RECEIVED, SUCH A
PROVISION COULD EASILY HAVE BEEN INCLUDED WITHIN THESE REGULATIONS. 
ITS ABSENCE SUGGESTS THE SECRETARY EXPECTED THAT CATTLE SELLERS, MAKING
SALES TO PACKERS IN THE ORDINARY COURSE OF BUSINESS, WOULD ASSUME THE
NORMAL RISKS OF INSOLVENCY WHICH ANY SELLER IN THAT SITUATION ASSUMES. 
THEIR INTERESTS, LIKE THAT OF SIMILARLY SITUATED SELLERS, WOULD DEPEND
FOR PROTECTION UPON THEIR TAKING OF APPROPRIATE STEPS UNDER THE
COMMERCIAL LAW OF THE VARIOUS STATES IN WHICH THEY DID BUSINESS. 

THE CASE CITED BY THE COURT OF APPEALS TO SUPPORT ITS POSITION
REQUIRE NO DIFFERENT CONCLUSION.  THE CASE MOST HEAVILY RELIED ON,
BOUWMAN V. DEPARTMENT OF AGRICULTURE, 363 F.2D 81 (CA5 1966), CITED FOR
THE PROPOSITION THAT A PACKER'S OBLIGATION TO PAY IS THAT OF A
FIDUCIARY, DEALT NOT WITH PACKERS AT ALL, BUT RATHER WITH A PERSON WHO
WAS A STOCKYARD OWNER, MARKET AGENCY, AND DEALER.  THE COURT IN THAT
CASE DID DISCUSS THE DUTY OF PROMPT PAYMENT BY SUCH A PERSON, BUT THE
DISCUSSION OCCURRED IN THE COMTEXT OF A DISCUSSION OF THE TEST FOR
INSOLVENCY.  THE COURT THERE CONCLUDED THAT A DEFINITION OF INSOLVENCY
DEALING WITH THE RELATION OF CURRENT ASSETS AND CURRENT LIABILITIES WAS
APPROPRIATE IN THIS INSTANCE, SINCE THE ABILITY TO MEET CURRENT
OBLIGATIONS AND TO MAKE PROMPT PAYMENT WAS NECESSARY TO EFFECT THE
BENEFICIAL PURPOSES OF THE ACT.  THE ONLY SPECIFIC DISCUSSION OF
TRUSTEE RELATIONSHIPS, HOWEVER, OCCURS IN A SEPARATE DISCUSSION ON THE
MATTER OF CUSTODIAL BANK ACCOUNTS.  AS DISCUSSED ABOVE, THIS DISCUSSION
WOULD BE RELEVANT TO THE OBLIGATION OF MARKET AGENCIES UNDER REGULATION
201.42 TO MAINTAIN CUSTODIAL ACCOUNTS AND TO REFRAIN FROM CONNINGLING
THEIR OWN FUNDS WITH THE FUNDS OF THE PERSONS FOR WHOM THEY ACT.  THE
OTHER CASES CITED BY THE COURT OF APPEALS DO NOT DEAL WITH PACKERS,
/14/  OR DEAL WITH THEM IN A TOTALLY DIFFERENT SITUATION FROM THAT
PRESENTED HERE.  /15/  NONE OF THE CASES HOLDS OR EVEN INIMATES THAT
PACKERS HOLD LIVESTOCK AND CARCASSES AS TRUSTEES UNTIL CASH PROCEEDS
ARE REALIZED BY THE SELLERS. 

        III 

WE HOLD THAT, ON THE UNDISPUTED FACTS OF THIS CASE, NOTHING IN THE
PACKERS AND STOCKYARDS ACT OR THE REGULATIONS ISSUED BY THE SECRETARY
UNDER THE ACT OVERRIDES THE TEXAS BUSINESS AND COMMERCIAL CODE IN
DETERMINING THE RESPECTIVE RIGHTS OF THE PARTIES TO THE FUNDS HELD BY
THE TRUSTEE.  WE DO NOTE, HOWEVER, THAT AN ISOLATED PASSAGE AT THE END
OF THE COURT OF APPEALS' OPINION STATES THAT THE "PACKERS AND
STOCKYARDS ACT AND REGULATIONS 201.42 AND 201.99 THEREUNDER COMPRISE A
COURSE OF DEALING AND USAGE OF TRADE KNOWN TO BOTH THE BANKRUPT PACKER
AND C.I.T., WHICH HAD FINANCED IT FOR AN EXTENDED PERIOD."  483 F.2D
557, 563.  WHILE WE HOLD THAT THE ACT AND REGULATIONS DO NOT EXPROPRIO
VIGORE OVERRIDE THE PROVISIONS OF TEXAS LAW DETERMINING PRIORITIES TO
THE FUNDS IN QUESTION, WE DO NOT MEAN TO SAY THAT A COURSE OF CONDUCT
MANDATE BY THE ACT OR REGULATIONS MIGHT NOT, JUST AS ANY OTHER COURSE
OF CONDUCT, BE RELEVANT OR EVEN DISPOSITIVE UNDER STATE LAW.  THE
DISTRICT JUDGE, HERSELF A LONGTIME TEXAS PRACTITIONER AND THEN STATE
COURT JUDGE BEFORE TAKING THE FEDERAL BENCH, DETERMINED OTHERWISE
HERE.  TO THE EXTENT THAT RESPONDENTS IN APPEALING TO THE COURT OF
APPEALS CHALLENGED THAT DETERMINATION, IT WILL OF COURSE BE OPEN FOR
ADJUDICATION IN THE COURT OF APPEALS ON REMAND. 

THE PETITION FOR CERTIORARI IS GRANTED AND THE JUDGMENT OF THE COURT
OF APPEALS IS REVERSED AND THE CASE IS REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  TEX. BUS.  & COM. CODE 1.201 (37) AND 2.401 (A) (1968). 

/2/  ID., 9.312 (C) (1968). 

/3/  ID., 2.702 (B) (1968).  THE COURT FURTHER NOTED THAT, IN ANY
EVENT, THE RIGHTS OF C.I.T. AND THE BANKRUPTCY TRUSTEE WOULD NOT HAVE
BEEN AFFECTED BY A DEMAND FOR RECLAMATION UNDER THE CODE.  SEE 2.702
(C). 

/4/  ID., 2.403 (A) (1968). 

/5/  483 F.2D 557, 563. 

/6/  SEE 7 U.S.C. 191. 

/7/  SEE ID., 201 (A). 

/8/  SEE ID., 201 (C). 

/9/  SEE ID., 201 (D). 

/10/  ID., 191 - 195. 

/11/  ID., 221 - 229. 

/12/  TITLE 9 CFR 201.43 (B) READS: 

"(B) PURCHASERS TO PAY PROMPTLY FOR LIVESTOCK.  EACH PACKER, MARKET
AGENCY, OR DEALER PURCHASING LIVESTOCK SHALL, BEFORE THE CLOSE OF THE
NEXT BUSINESS DAY FOLLOWING THE PURCHASE OF LIVESTOCK AND THE
DETERMINATION OF THE AMOUNT OF THE PURCHSE PRICE, TRANSMIT OR DELIVER
TO THE SELLER OR HIS DULY AUTHORIZED AGENT THE FULL AMOUNT OF THE
PURCHASE PRICE, UNLESS OTHERWISE EXPRESSLY AGREED BETWEEN THE PARTIES
BEFORE THE PURCHASE OF THE LIVESTOCK.  ANY SUCH AGREEMENT SHALL BE
DISCLOSED IN THE RECORDS OF ANY MARKET AGENCY OR DEALER SELLING THE
LIVESTOCK, AND IN THE PURCHASER'S RECORDS AND ON THE ACCOUNTS OR OTHER
DOCUMENTS ISSUED BY THE PURCHASER RELATING TO THE TRANSACTION.  THE
PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO PERMIT ANY
TRANSACTION PROHIBITED BY 201.61 (A) RELATING TO FINANCING BY MARKET
AGENCIES SELLING ON A COMMISSION BASIS." 

/13/  TITLE 9 CFR 201.99 READS: 

"(A) EACH PACKER PURCHASING LIVESTOCK ON A CARCASS GRANDE, CARCASS
WEIGHT, OR CARCASS GRADE AND WEIGHT BASIS SHALL, PRIOR TO SUCH
PURCHASE, MAKE KNOWN TO THE SELLER, OR TO HIS DULY AUTHORIZED AGENT,
THE DETAILS OF THE PURCHASE CONTRACT.  SUCH DETAILS SHALL INCLUDE, WHEN
APPLICABLE, EXPECTED DATE AND PLACE OF SLAUGHTER, CARCASS PRICE,
CONDEMNATION TERMS, DESCRIPTION OF THE CARCASS TRIM, GRADING TO BE
USED, ACCOUNTING, AND ANY SPECIAL CONDITIONS. 

"(B) EACH PACKER PURCHSING LIVESTOCK ON A CARCASS GRADE, CARCASS
WEIGHT, OR CARCASS GRADE AND WEIGHT BASIS, SHALL MAINTAIN THE IDENTITY
OF EACH SELLER'S LIVESTOCK AND THE CARCASSES THEREFROM AND SHALL, AFTER
DETERMINATION OF THE AMOUNT OF THE PURCHASE PRICE, TRANSMIT OR DELIVER
TO THE SELLER, OR HIS DULY AUTHORIZED AGENT, A TRUE WRITTEN ACCOUNT OF
SUCH PURCHASE SHOWING THE NUMBER, WEIGHT, AND PRICE OF THE CARCASSES OF
EACH GRADE (IDENTIFYING THE GRADE) AND OF THE UNGRADED CARCASSES, AN
EXPLANATION OF ANY CONDEMNATIONS, AND ANY OTHER INFORMATION AFFECTING
FINAL ACCOUNTING.  PACKERS PURCHASING LIVESTOCK ON SUCH A BASIS SHALL
MAINTAIN SUFFICIENT RECORDS TO SUBSTANTIATE THE SETTLEMENT OF EACH
TRANSACTION. 

"(C) WHEN LIVESTOCK ARE PURCHASED BY A PACKER ON A CARCASS WEIGHT OR
CARCASS GRADE AND WEIGHT BASIS, PURCHASE AND SETTLEMENT THEREFORE SHALL
BE ON THE BASIS OF CARCASS PRICE.  THIS PARAGRAPH DOES NOT APPLY TO
PURCHASES OF LIVESTOCK BY A PACKER ON A GUARANTEED YIELD BASIS. 

"(D) SETTLEMENT AND FINAL PAYMENT FOR LIVESTOCK PURCHASED BY A
PACKER ON A CARCASS WEIGHT OR CARCASS GRADE AND WIGHT BASIS SHALL BE ON
ACTUAL (HOT) CARCASS WEIGHTS.  THE HOOKS, ROLLERS, AND GAMBRELS OR
OTHER SIMILAR EQUIPMENT USED AT A PACKING ESTABLISHMENT IN CONNECTION
WITH THE WEIGHING OF CARCASSES OF THE SAME SPECIES OF LIVESTOCK SHALL
BE UNIFORM IN WEIGHT.  THE TARE WEIGHT SHALL INCLUDE ONLY THE WEIGHT OF
SUCH EQUIPMENT: PROVIDED, HOWEVER, THAT UNTIL JULY 1, 1968, THESE
PACKERS WHO SHROUD CARCASSES BEFORE WEIGHING THEM MAY INCLUDE IN THE
TARE WEIGHT THE AVERAGE WEIGHT OF THE SHROUDS AND PINS. 

"(E) SETTLEMENT AND FINAL PAYMENT FOR LIVESTOCK PURCHASED BY A
PACKER ON A USDA CARCASS GRADE SHALL BE ON AN OFFICIAL (FINAL--, NOT
PRELIMINARY) GRADE.  IF SETTLEMENT AND FINAL PAYMENT ARE BASED UPON ANY
GRADES OTHER THAN OFFICIAL USDA GRADES, SUCH OTHER GRADES SHALL BE SET
FORTH IN DETAILED WRITTEN SPECIFICATIONS WHICH SHALL BE MADE AVAILABLE
TO THE SELLER OR HIS DULY AUTHORIZED AGENT.  FOR PURPOSES OF SETTLEMENT
AND FINAL PAYMENT FOR LIVESTOCK PURCHASED ON A GRADE OR GRADE AND
WEIGHT BASIS, CARCASSES SHALL BE FINAL GRADED BEFORE THE CLOSE OF THE
SECOND BUSINESS DAY FOLLOWING THE DAY THE LIVESTOCK ARE SLAUGHTERED." 

/14/  GLOVER LIVESTOCK COMM'N CO. V. HARDIN, 454 F.2D 109 (CA8
1972). 

/15/  BRUHN'S FREEZER MEATS OF CHICAGO V. DEPARTMENT OF AGRICULTURE,
438 F.2D 1332 (CA8 1971); SWIFT & CO. V. UNITED STATES, 393 F.2D 247
(CA7 1968). 
..END :






















VILLAGE OF BELLE TERRE V. BORAAS, 416 U.S. 1 


       VILLAGE OF BELLE TERRE ET AL. V. BORAAS ET AL.

      APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 73 - 191.  ARGUED FEBRUARY 19 - 20, 1974--DECIDED APRIL

           1, 1974; (476 F.2D 806, REVERSED.) 


    A NEW YORK VILLAGE ORDINANCE RESTRICTED LAND USE TO ONE-FAMILY

  DWELLINGS, DEFINING THE WORD "FAMILY" TO MEAN ONE OR MORE PERSONS

  RELATED BY BLOOD, ADOPTION, OR MARRIAGE, OR NOT MORE THAN TWO

  UNRELATED PERSONS, LIVING AND COOKING TOGETHER AS A SINGLE

  HOUSEKEEPING UNIT AND EXPRESSLY EXCLUDING FROM THE TERM LODGING,

  BOARDING, FRATERNITY, OR MULTIPLE-DWELLING HOUSES.  AFTER THE

  OWNERS OF A HOUSE IN THE VILLAGE, WHO HAD LEASED IT TO SIX

  UNRELATED COLLEGE STUDENTS, WERE CITED FOR VIOLATING THE

  ORDINANCE, THIS ACTION WAS BROUGHT TO HAVE THE ORDINANCE DECLARED

UNCONSTITUTIONAL AS VIOLATIVE OF EQUAL PROTECTION AND THE RIGHTS

  OF ASSOCIATION, TRAVEL, AND PRIVACY.  THE DISTRICT COURT HELD THE

  ORDINANCE CONSTITUTIONAL, AND THE COURT OF APPEALS REVERSED. 

  HELD: 

     1.  ECONOMIC AND SOCIAL LEGISLATION WITH RESPECT TO WHICH THE

  LEGISLATURE HAS DRAWN LINES IN THE EXERCISE OF ITS DISCRETION

  WILL BE UPHELD IF IT IS "REASONABLE, NOT ARBITRARY" AND BEARS "A

RATIONAL RELATIONSHIP TO A (PERMISSIBLE) STATE OBJECTIVE," REED

  V. REED, 404 U.S. 71, 76, AND HERE THE ORDINANCE--WHICH IS NOT

  AIMED AT TRANSIENTS AND INVOLVES NO PROCEDURAL DISPARITY

  INFLICTED ON SOME BUT NOT ON OTHERS OR DEPRIVATION OF ANY

  "FUNDAMENTAL" RIGHT--MEETS THAT CONSTITUTIONAL STANDARD AND MUST

  BE UPHELD AS VALID LAND--USE LEGISLATION ADDRESSED TO FAMILY

  NEEDS.  BERMAN V. PARKER, 348 U.S. 26.  PP. 7 - 9. 

     2.  THE FACT THAT THE NAMED TENANT APPELLEES HAVE VACATED THE

  HOUSE DOES NOT MOOT THIS CASE AS THE CHALLENGED ORDINANCE

  CONTINUES TO AFFECT THE VALUE OF THE PROPERTY. 

PP. 9 - 10. 

     DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  BRENNAN, J., POST, P. 10, AND MARSHALL,

  J., POST, P. 12, FILED DISSENTING OPINIONS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

BELLE TERRE IS A VILLAGE ON LONG ISLAND'S NORTH SHORE OF ABOUT 220
HOMES INHABITED BY 700 PEOPLE.  ITS TOTAL LAND AREA IS LESS THAN ONE
SQUARE MILE.  IT HAS RESTRICTED LAND USE TO ONE-FAMILY DWELLINGS
EXCLUDING LODGING HOUSES, BOARDING HOUSES, FRATERNITY HOUSES, OR
MULTIPLE-DWELLING HOUSES.  THE WORD "FAMILY" AS USED IN THE ORDINANCE
MEANS, "(ONE OR MORE PERSONS RELATED BY BLOOD, ADOPTION, OR MARRIAGE,
LIVING AND COOKING TOGETHER AS A SINGLE HOUSEKEEPING UNIT, EXCLUSIVE OF
HOUSEHOLD SERVANTS.  A NUMBER OF PERSONS BUT NOT EXCEEDING TWO (2)
LIVING AND COOKING TOGETHER AS A SINGLE HOUSEKEEPING UNIT THOUGH NOT
RELATED BY BLOOD, ADOPTION, OR MARRIAGE SHALL BE DEEMED TO CONSTITUTE A
FAMILY." 

APPELLEES THE DICKMANS ARE OWNERS OF A HOUSE IN THE VILLAGE AND
LEASED IT IN DECEMBER 1971 FOR A TERM OF 18 MONTHS TO MICHAEL TRUMAN. 
LATER BRUCE BORAAS BECAME A COLESSEE.  THEN ANNE PARISH MOVED INTO THE
HOUSE ALONG WITH THREE OTHERS.  THESE SIX ARE STUDENTS AT NEARBY STATE
UNIVERSITY AT STONY BROOK AND NONE IS RELATED TO THE OTHER BY BLOOD,
ADOPTION, OR MARRIAGE.  WHEN THE VILLAGE SERVED THE DICKMANS WITH AN
"ORDER TO REMEDY VIOLATIONS" OF THE ORDINANCE, /1/  THE OWNERS PLUS
THREE TENANTS /2/  THEREUPON BROUGHT THIS ACTION UNDER 42 U.S.C. 1983
FOR AN INJUNCTION DECLARING THE ORDINANCE UNCONSTITUTIONAL.  THE
DISTRICT COURT HELD THE ORDINANCE CONSTITUTIONAL, 367 F. SUPP. 136, AND
THE COURT OF APPEALS REVERSED, ONE JUDGE DISSENTING, 476 F.2D 806.  THE
CASE IS HERE BY APPEAL, 28 U.S.C. 1254 (2); AND WE NOTED PROBABLE
JURISDICTION, 414 U.S. 907. 

THIS CASE BRINGS TO THIS COURT A DIFFERENT PHASE OF LOCAL ZONING
REGULATIONS THAN WE HAVE PREVIOUSLY REVIEWED.  EUCLID V. AMBLER REALTY
CO., 272 U.S. 365, INVOLVED A ZONING ORDINANCE CLASSIFYING LAND USE IN
A GIVEN AREA INTO SIX CATEGORIES.  APPELLEES' TRACTS FELL UNDER THREE
CLASSIFICATIONS: U-2, WHICH INCLUDED TWO-FAMILY DWELLINGS; U-3, WHICH
INCLUDED APARTMENTS, HOTELS, CHURCHES, SCHOOLS, PRIVATE CLUBS,
HOSPITALS, CITY HALL AND THE LIKE; AND U-6, WHICH INCLUDED SEWAGE
DISPOSAL PLANTS, INCINERATORS, SCRAP STORAGE, CEMETERIES, OIL AND GAS
STORAGE AND SO ON.  HEIGHTS OF BUILDINGS WERE PRESCRIBED FOR EACH ZONE;
ALSO, THE SIZE OF LAND AREAS REQUIRED FOR EACH KIND OF USE WAS
SPECIFIED.  THE LAND IN LITIGATION WAS VACANT AND BEING HELD FOR
INDUSTRIAL DEVELOPMENT; AND EVIDENCE WAS INTRODUCED SHOWING THAT UNDER
THE RESTRICTED-USE ORDINANCE THE LAND WOULD BE GREATLY REDUCED IN
VALUE.  THE CLAIM WAS THAT THE LANDOWNER WAS BEING DEPRIVED OF LIBERTY
AND PROPERTY WITHOUT DUE PROCESS WITHIN THE MEANING OF THE FOURTEENTH
AMENDMENT. 

THE COURT SUSTAINED THE ZONING ORDINANCE UNDER THE POLICE POWER OF
THE STATE, SAYING THAT THE LINE "WHICH IN THIS FIELD SEPARATES THE
LEGITIMATE FROM THE ILLEGITIMATE ASSUMPTION OF POWER IS NOT CAPABLE OF
PRECISE DELIMITATION.  IT VARIES WITH CIRCUMSTANCES AND CONDITIONS." 
ID., AT 387.  AND THE COURT ADDED: "A NUISANCE MAY BE MERELY A RIGHT
THING IN THE WRONG PLACE,--LIKE A PIG IN THE PARLOR INSTEAD OF THE
BARNYARD.  IF THE VALIDITY OF THE LEGISLATIVE CLASSIFICATION FOR ZONING
PURPOSES BE FAIRLY DEBATABLE, THE LEGISLATIVE JUDGMENT MUST BE ALLOWED
TO CONTROL."  ID., AT 388.  THE COURT LISTED AS CONSIDERATIONS BEARING
ON THE CONSTITUTIONALITY OF ZONING ORDINANCES THE DANGER OF FIRE OR
COLLAPSE OF BUILDINGS, THE EVILS OF OVERCROWDING PEOPLE, AND THE
POSSIBILITY THAT "OFFENSIVE TRADES, INDUSTRIES, AND STRUCTURES" MIGHT
"CREATE NUISANCE" TO RESIDENTIAL SECTIONS.  IBID.  BUT EVEN THOSE
HISTORIC POLICE POWER PROBLEMS NEED NOT LOOM LARGE OR ACTUALLY BE
EXISTENT IN A GIVEN CASE.  FOR THE EXCLUSION OF "ALL INDUSTRIAL
ESTABLISHMENTS" DOES NOT MEAN THAT "ONLY OFFENSIVE OR DANGEROUS
INDUSTRIES WILL BE EXCLUDED."  IBID.  THAT FACT DOES NOT INVALIDATE THE
ORDINANCE; THE COURT HELD: 

"THE INCLUSION OF A REASONABLE MARGIN TO INSURE EFFECTIVE
ENFORCEMENT, WILL NOT PUT UPON A LAW, OTHERWISE VALID, THE STAMP OF
INVALIDITY.  SUCH LAWS MAY ALSO FIND THEIR JUSTIFICATION IN THE FACT
THAT, IN SOME FIELDS, THE BAD FADES INTO THE GOOD BY SUCH INSENSIBLE
DEGREES THAT THE TWO ARE NOT CAPABLE OF BEING READILY DISTINGUISHED AND
SEPARATED IN TERMS OF LEGISLATION."  ID., AT 388 - 389. 

THE MAIN THRUST OF THE CASE IN THE MIND OF THE COURT WAS IN THE
EXCLUSION OF INDUSTRIES AND APARTMENTS AND AS RESPECTS THAT IT
COMMENTED ON THE DESIRE TO KEEP RESIDENTIAL AREAS FREE OF "DISTURBING
NOISES"; "INCREASED TRAFFIC"; THE HAZARD OF "MOVING AND PARKED
AUTOMOBILES"; THE "DEPRIVING CHILDREN OF THE PRIVILEGE OF QUIET AND
OPEN SPACES FOR PLAY, ENJOYED BY THOSE IN MORE FAVORED LOCALITIES." 
ID., AT 394.  THE ORDINANCE WAS SANCTIONED BECAUSE THE VALIDITY OF THE
LEGISLATIVE CLASSIFICATION WAS "FAIRLY DEBATABLE" AND THEREFORE COULD
NOT BE SAID TO BE WHOLLY ARBITRARY.  ID., AT 388. 

OUR DECISION IN BERMAN V. PARKER, 348 U.S. 26, SUSTAINED A LAND-USE
PROJECT IN THE DISTRICT OF COLUMBIA AGAINST A LANDOWNER'S CLAIM THAT
THE TAKING VIOLATED THE DUE PROCESS CLAUSE AND THE JUST COMPENSATION
CLAUSE OF THE FIFTH AMENDMENT.  THE ESSENCE OF THE ARGUMENT AGAINST THE
LAW WAS, WHILE TAKING PROPERTY FOR RIDDING AN AREA OF SLUMS WAS
PERMISSIBLE, TAKING IT "MERELY TO DEVELOP A BETTER BALANCED, MORE
ATTRACTIVE COMMUNITY"  WAS NOT, ID., AT 31.  WE REFUSED TO LIMIT THE
CONCEPT OF PUBLIC WELFARE THAT MAY BE ENHANCED BY ZONING REGULATIONS. 
/3/  WE SAID: 

"MISERABLE AND DISREPUTABLE HOUSING CONDITIONS MAY DO MORE THAN
SPREAD DISEASE AND CRIME AND IMMORALITY.  THEY MAY ALSO SUFFOCATE THE
SPIRIT BY REDUCING THE PEOPLE WHO LIVE THERE TO THE STATUS OF CATTLE. 
THEY MAY INDEED MAKE LIVING AN ALMOST INSUFFERABLE BURDEN.  THEY MAY
ALSO BE AN UGLY SORE, A BLIGHT ON THE COMMUNITY WHICH ROBS IT OF CHARM,
WHICH MAKES IT A PLACE FROM WHICH MEN TURN.  THE MISERY OF HOUSING MAY
DESPOIL A COMMUNITY AS AN OPEN SEWER MAY RUIN A RIVER. 

     "WE DO NOT SIT TO DETERMINE WHETHER A PARTICULAR HOUSING

  PROJECT IS OR IS NOT DESIRABLE.  THE CONCEPT OF THE PUBLIC

  WELFARE IS BROAD AND INCLUSIVE.  . . . THE VALUES IT REPRESENTS

  ARE SPIRITUAL AS WELL AS PHYSICAL, AESTHETIC AS WELL AS

  MONETARY.  IT IS WITHIN THE POWER OF THE LEGISLATURE TO DETERMINE

  THAT THE COMMUNITY SHOULD BE BEAUTIFUL AS WELL AS HEALTHY,

SPACIOUS AS WELL AS CLEAN, WELL-BALANCED AS WELL AS CAREFULLY

  PATROLLED."  ID., AT 32 - 33. 

IF THE ORDINANCE SEGREGATED ONE AREA ONLY FOR ONE RACE, IT WOULD
IMMEDIATELY BE SUSPECT UNDER THE REASONING OF BUCHANAN V. WARLEY, 245
U.S. 60, WHERE THE COURT INVALIDATED A CITY ORDINANCE BARRING A BLACK
FROM ACQUIRING REAL PROPERTY IN A WHITE RESIDENTIAL AREA BY REASON OF
AN 1866 ACT OF CONGRESS, 14 STAT. 27, NOW 42 U.S.C. 1982, AND AN 1970
ACT, 17, 16 STAT. 144, 42 U.S.C. 1981, BOTH ENFORCING THE FOURTEENTH
AMENDMENT.  ID., AT 78 - 82.  SEE JONES V. MAYER CO., 392 U.S. 409. 

IN SEATTLE TRUST CO. V. ROBERGE, 278 U.S. 116, SEATTLE HAD A ZONING
ORDINANCE THAT PERMITTED A "'PHILANTHROPIC HOME FOR CHILDREN OR FOR OLD
PEOPLE'" IN A PARTICULAR DISTRICT "'WHEN THE WRITTEN CONSENT SHALL HAVE
BEEN OBTAINED OF THE OWNERS OF TWO-THIRDS OF THE PROPERTY WITHIN FOUR
HUNDRED (400) FEET OF THE PROPOSED BUILDING.'"  ID., AT 118.  THE COURT
HELD THAT PROVISION OF THE ORDINANCE UNCONSTITUTIONAL, SAYING THAT THE
EXISTING OWNERS COULD "WITHHOLD CONSENT FOR SELFISH REASONS OR
ARBITRARILY AND MAY SUBJECT THE TRUSTEE (OWNER) TO THEIR WILL OR
CAPRICE."  ID., AT 122.  UNLIKE THE BILLBOARD CASES (E.G., CUSACK CO.
V. CITY OF CHICAGO, 242 U.S. 526), THE COURT CONCLUDED THAT THE SEATTLE
ORDINANCE WAS INVALID SINCE THE PROPOSED HOME FOR THE AGED POOR WAS NOT
SHOWN BY ITS MAINTENANCE AND CONSTRUCTION "TO WORK ANY INJURY,
INCONVENIENCE OR ANNOYANCE TO THE COMMUNITY, THE DISTRICT OR ANY
PERSON."  278 U.S., AT 122. 

THE PRESENT ORDINANCE IS CHALLENGED ON SEVERAL GROUNDS:  THAT IT
INTERFERES WITH A PERSON'S RIGHT TO TRAVEL; THAT IT INTERFERES WITH THE
RIGHT TO MIGRATE TO AND SETTLE WITHIN A STATE; THAT IT BARS PEOPLE WHO
ARE UNCONGENIAL TO THE PRESENT RESIDENTS; THAT IT EXPRESSES THE SOCIAL
PREFERENCES OF THE RESIDENTS FOR GROUPS THAT WILL BE CONGENIAL TO THEM;
THAT SOCIAL HOMOGENEITY IS NOT A LEGITIMATE INTEREST OF GOVERNMENT;
THAT THE RESTRICTION OF THOSE WHOM THE NEIGHBORS DO NOT LIKE TRENCHES
ON THE NEWCOMERS'  RIGHTS OF PRIVACY; THAT IT IS OF NO RIGHTFUL CONCERN
TO VILLAGERS WHETHER THE RESIDENTS ARE MARRIED OR UNMARRIED; THAT THE
ORDINANCE IS ANTITHETICAL TO THE NATION'S EXPERIENCE, IDEOLOGY, AND
SELF-PERCEPTION AS AN OPEN, EGALITARIAN, AND INTEGRATED SOCIETY.  /4/ 

WE FIND NONE OF THESE REASONS IN THE RECORD BEFORE US.  IT IS NOT
AIMED AT TRANSIENTS.  CF. SHAPIRO V. THOMPSON, 394 U.S. 618.  IT
INVOLVES NO PROCEDURAL DISPARITY INFLICTED ON SOME BUT NOT ON OTHERS
SUCH AS WAS PRESENTED BY GRIFFIN V. ILLINOIS, 351 U.S. 12.  IT INVOLVES
NO "FUNDAMENTAL" RIGHT GUARANTEED BY THE CONSTITUTION, SUCH AS VOTING,
HARPER V. VIRGINIA BOARD, 383 U.S. 663; THE RIGHT OF ASSOCIATION, NAACP
V. ALABAMA, 357 U.S. 449; THE RIGHT OF ACCESS TO THE COURTS, NAACP V.
BUTTON, 371 U.S. 415; OR ANY RIGHTS OF PRIVACY, CF. GRISWOLD V.
CONNECTICUT, 38! U.S. 479; EISENSTADT V. BAIRD, 405 U.S. 438, 453 -
454.  WE DEAL WITH ECONOMIC AND SOCIAL LEGISLATION WHERE LEGISLATURES
HAVE HISTORICALLY DRAWN LINES WHICH WE RESPECT AGAINST THE CHARGE OF
VIOLATION OF THE EQUAL PROTECTION CLAUSE IF THE LAW BE "'REASONABLE,
NOT ARBITRARY'"  (QUOTING ROYSTER GUANO CO. V. VIRGINIA, 253 U.S. 412,
415) AND BEARS "A RATIONAL RELATIONSHIP TO A (PERMISSIBLE) STATE
OBJECTIVE."  REED V. REED, 404 U.S. 71, 76. 

IT IS SAID, HOWEVER, THAT IF TWO UNMARRIED PEOPLE CAN CONSTITUTE A
"FAMILY," THERE IS NO REASON WHY THREE OR FOUR MAY NOT.  BUT EVERY LINE
DRAWN BY A LEGISLATURE LEAVES SOME OUT THAT MIGHT WELL HAVE BEEN
INCLUDED.  /5/  THAT EXERCISE OF DISCRETION, HOWEVER, IS A LEGISLATIVE,
NOT A JUDICIAL, FUNCTION. 

IT IS SAID THAT THE BELLE TERRE ORDINANCE REEKS WITH AN ANIMOSITY TO
UNMARRIED COUPLES WHO LIVE TOGETHER.  /6/  THERE IS NO EVIDENCE TO
SUPPORT IT; AND THE PROVISION OF THE ORDINANCE BRINGING WITHIN THE
DEFINITION OF A "FAMILY"  TWO UNMARRIED PEOPLE BELIES THE CHARGE. 

THE ORDINANCE PLACES NO BAN ON OTHER FORMS OF ASSOCIATION, FOR A
"FAMILY" MAY, SO FAR AS THE ORDINANCE IS CONCERNED, ENTERTAIN WHOMEVER
IT LIKES. 

THE REGIMES OF BOARDING HOUSES, FRATERNITY HOUSES, AND THE LIKE
PRESENT URBAN PROBLEMS.  MORE PEOPLE OCCUPY A GIVEN SPACE; MORE CARS
RATHER CONTINUOUSLY PASS BY; MORE CARS ARE PARKED; NOISE TRAVELS WITH
CROWDS. 

A QUIET PLACE WHERE YARDS ARE WIDE, PEOPLE FEW, AND MOTOR VEHICLES
RSTRICTED ARE LEGITIMATE GUIDELINES IN A LAND-USE PROJECT ADDRESSED TO
FAMILY NEEDS.  THIS GOAL IS A PERMISSIBLE ONE WITHIN BERMAN V. PARKER,
SUPRA.  THE POLICE POWER IS NOT CONFINED TO ELIMINATION OF FILTH,
STENCH, AND UNHEALTHY PLACES.  IT IS AMPLE TO LAY OUT ZONES WHERE
FAMILY VALUES, YOUTH VALUES, AND THE BLESSINGS OF QUIET SECLUSION AND
CLEAN AIR MAKE THE AREA A SANCTUARY FOR PEOPLE. 

THE SUGGESTION THAT THE CASE MAY BE MOOT NEED NOT DETAIN US.  A
ZONING ORDINANCE USUALLY HAS AN IMPACT ON THE VALUE OF THE PROPERTY
WHICH IT REGULATES.  BUT IN SPITE OF THE FACT THAT THE PRECISE IMPACT
OF THE ORDINANCE SUSTAINED IN EUCLID ON A GIVEN PIECE OF PROPERTY WAS
NOT KNOWN, 272 U.S., AT 397, THE COURT, CONSIDERING THE MATTER A
CONTROVERSY IN THE REALM OF CITY PLANNING, SUSTAINED THE ORDINANCE. 
HERE WE A STEP CLOSER TO THE IMPACT OF THE ORDINANCE ON THE VALUE OF
THE LESSOR'S PROPERTY.  HE HAS NOT ONLY LOST SIX TENANTS AND ACQUIRED
ONLY TOW IN THEIR PLACE; IT IS OBVIOUS THAT THE SCALE OF RENTAL VALUES
RIDES ON WHAT WE DECIDE TODAY.  WHEN BERMAN REACHED US IT WAS NOT
CERTAIN WHETHER AN ENTIRE TRACT WOULD BE TAKEN OR ONLY THE BUILDINGS ON
IT AND A SCENIC EASEMENT.  348 U.S., AT 36.  BUT THAT DID NOT MAKE THE
CASE ANY THE LESS A CONTROVERSY IN THE CONSTITUTIONAL SENSE.  WHEN MR.
JUSTICE HOLMES SAID FOR THE COURT IN BLOCK V. HIRSH, 256 U.S. 135, 155
"PROPERTY RIGHTS MAY BE CUT DOWN, AND TO THAT EXTENT TAKEN, WITHOUT
PAY," HE STATED THE ISSUE HERE.  AS IS TRUE IN MOST ZONING CASES, THE
PRECISE IMPACT ON VALUE MAY, AT THE THRESHOLD OF LITIGATION OVER
VALIDITY, NOT YET BE KNOWN. 

         REVERSED. 

/1/  YOUNGER V. HARRIS, 401 U.S. 37, IS NOT INVOLVED HERE, AS ON
AUGUST 2, 1972, WHEN THIS FEDERAL SUIT WAS INITIATED, NO STATE CASE HAD
BEEN STARTED.  THE EFFECT OF THE "ORDER TO REMEDY VIOLATIONS" WAS TO
SUBJECT THE OCCUPANTS TO LIABILITY COMMENCING AUGUST 3, 1972.  DURING
THE LITIGATION THE LEASE EXPIRED AND IT WAS EXTENDED.  ANNE PARISH
MOVED OUT.  THEREAFTER THE OTHER FIVE STUDENTS LEFT AND THE OWNERS NOW
HOLD THE HOME OUT FOR SALE OR RENT, INCLUDING TO STUDENT GROUPS. 

/2/  TRUMAN, BORAAS, AND PARISH BECAME APPELLEES BUT NOT THE OTHER
THREE. 

/3/  VERMONT HAS ENACTED COMPREHENSIVE STATEWIDE LAND-USE CONTROLS
WHICH DIRECT LOCAL BOARDS TO DEVELOP PLANS ORDERING THE USES OF LOCAL
LAND, INTER ALIA, TO "CREATE CONDITIONS FAVORABLE TO TRANSPORTATION,
HEALTH, SAFETY, CIVIC ACTIVITIES AND EDUCATIONAL AND CULTURAL
OPPORTUNITIES, (AND) REDUCE THE WASTES OF FINANCIAL AND HUMAN RESOURCES
WHICH RESULT FROM WITHER EXCESSIVE CONGESTION OR EXCESSIVE SCATTERING
OF POPULATION . . . ."  VT. STAT. ANN., TIT. 10 6042 (1973).  FEDERAL
LEGISLATION HAS BEEN PROPOSED DESIGNED TO ASSIST STATES AND LOCALITIES
IN DEVELOPING SUCH BROAD OBJECTIVE LAND-USE GUIDELINES.  SEE SENATE
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, LAND USE POLICY AND PLANNING
ASSISTANCE ACT, S. REP. NO. 93 - 197 (1973).     /4/  MANY REFERENCES
IN THE DEVELOPMENT OF THIS THESIS ARE MADE TO F. TURNER, THE FRONTIER
IN AMERICAN HISTORY (1920), WITH EMPHASIS ON HIS THEORY THAT"DEMOCRACY
(IS) BORN OF FREE LAND."  ID., AT 32. 

/5/  MR. JUSTICE HOLMES MADE THE POINT A HALF CENTURY AGO.     "WHEN
A LEGAL DISTINCTION IS DETERMINED, AS NO ONE DOUBTS THAT IT MAY BE,
BETWEEN NIGHT AND DAY, CHILDHOOD AND MATURITY, OR ANY OTHER EXTREMES, A
POINT HAS TO BE FIXED OR A LINE HAS TO BE DRAWN, OR GRADUALLY PICKED
OUT BY SUCCESSIVE DECISIONS, TO MARK WHERE THE CHANGE TAKES PLACE. 
LOOKED AT BY ITSELF WITHOUT REGARD TO THE NECESSITY BEHIND IT THE LINE
OR POINT SEEMS ARBITRATY.  IT MIGHT AS WELL OR NEARLY AS WELL BE A
LITTLE MORE TO ONE SIDE OR THE OTHER.  BUT WHEN IT IS SEEN THAT A LINE
OR POINT THERE MUST BE, AND THAT THERE IS NO MATHEMATICAL OR LOGICAL
FIXING IT PRECISELY, THE DECISION OF THE LEGISLATURE MUST BE ACCEPTED
UNLESS WE CAN SAY THAT IT IS VERY WIDE OF ANY REASONABLE MARK." 
LOUISVILLE GAS CO. V. COLEMAN, 277 U.S. 32, 41 (DISSENTING OPINION). 

/6/  DEPARTMENT OF AGRICULTURE V. MORENO, 413 U.S. 528 (1973), IS
THEREFORE INAPT AS THERE A HOUSEHOLD CONTAINING ANYONE UNRELATED TO THE
REST WAS DENIED FOOD STAMPS. 

MR. JUSTICE BRENNAN, DISSENTING. 

THE CONSTITUTIONAL CHALLENGE TO THE VILLAGE ORDINANCE IS PREMISED
SOLELY ON ALLEGED INFRINGEMENT OF ASSOCIATIONAL AND OTHER
CONSTITUTIONAL RIGHTS OF TENANTS.  BUT THE NAMED TENANT APPELLEES HAVE
QUIT THE HOUSE, THUS RAISING A SERIOUS QUESTION WHETHER THERE NOW
EXISTS A COGNIZABLE "CASE OR CONTROVERSY" THAT SATISFIES THAT
INDISPENSABLE REQUISITE OF ART. III OF THE CONSTITUTION.  EXISTENCE OF
A CASE OR CONTROVERSY MUST OF COURSE APPEAR AT EVERY STAGE OF REVEIW,
SEE, E.G., ROE V. WADE, 410 U.S. 113, 125 (1973); STEFFEL V. THOMPSON,
415 U.S. 452, 459 N. 10 (1974).  IN MY VIEW IT DOES NOT APPEAR AT THIS
STAGE OF THIS CASE. 

PLAINLY THERE IS NO CASE OR CONTROVERSY AS TO THE NAMED TENANT
APPELLEES SINCE, HAVING MOVED OUT, THEY NO LONGER HAVE AN INTEREST,
ASSOCIATIONAL, ECONOMIC OR OTHERWISE, TO BE VINDICATED BY INVALIDATION
OF THE ORDINANCE.  WHETHER THERE IS A COGNIZABLE CASE OR CONTROVERSY
MUST THEREFORE TURN ON WHETHER THE LESSOR APPELLEES MAY ATTACK THE
ORDINANCE ON THE BASIS OF THE CONSTITUTIONAL RIGHTS OF THEIR TENANTS. 

THE GENERAL "WEIGHTY" RULE OF PRACTICE IS "THAT A LITIGANT MAY ONLY
ASSERT HIS OWN CONSTITUTIONAL RIGHTS OR IMMUNITIES," UNITED STATES V.
RAINES, 362 U.S. 17, 22 (1960).  A PERTINENT EXCEPTION HOWEVER
ORDINARILY LIMITS A LITIGANT TO THE ASSERTION OF THE ALLEGED DENIAL OF
ANOTHER'S CONSTITUTIONAL RIGHTS TO SITUATIONS IN WHICH THERE IS: (1)
EVIDNECE THAT AS A DIRECT CONSEQUENCE OF THE DENIAL OF CONSTITUTIONAL
RIGHTS OF THE OTHERS, THE LITIGANT FACES SUBSTANTIAL ECONOMIC INJURY,
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, 535 - 536 (1925); BARROWS
V. JACKSON, 346 U.S. 249, 255 - 256  (1953), OR CRIMINAL PROSECUTION,
GRISWOLD V. CONNECTICUT, 381 U.S. 479, 481 (1965); EISENSTADT V. BAIRD,
405 U.S. 438 (1972), AND (2) A SHOWING THAT THE LITIGANT'S AND THE
OTHERS' INTERESTS INTERTWINE AND UNLESS THE LITIGANT MAY ASSERT THE
CONSTITUTIONAL RIGHTS OF THE OTHERS, THOSE RIGHTS CANNOT EFFECTIVELY BE
VINDICATED.  GRISWOLD V. CONNECTICUT, SUPRA; EISENSTADT V. BAIRD,
SUPRA, SEE ALSO NAACP V. ALABAMA, 357 U.S. 449 (1958). 

IN MY VIEW, LESSOR APPELLEES DO NOT, ON THE PRESENT RECORD, SATISFY
EITHER REQUIREMENT OF THE EXCEPTION.  THEIR OWN BRIEF NEGATES ANY CLAIM
THAT THEY FACE ECONOMIC LOSS.  THE BRIEF STATES THAT "THERE IS NOTHING
IN THE RECORD TO SUPPORT THE CONTENTION THAT IN A MIDDLE CALSS,
SUBURBAN RESIDENTAIL COMMUNITY LIKE BELLE TERRE, TRADITIONAL FAMILIES
ARE WILLING TO PAY MORE OR LESS THAN STUDENTS WITH LIMITED MEANS LIKE
THE APPELLEES."  BRIEF FOR APPELLEES 54 - 55.  AND WHETHER THEY FACE
CRIMINAL PROSECUTION FOR VIOLATIONS OF THE ORDINANCE IS AT LEAST
UNCLEAR.  THE CRINIMAL SUMMONS SERVED ON THEM ON JULY 19, 1972, WAS
WITHDRAWN BECAUSE NOT PRECEDED, AS REQUIRED BY THE BILLAGE'S PROCEDURE,
BY AN ORDER REQUIRING DISCONTINUANCE OF VIOLATIONS WITHIN 48 HOURS.  AN
ORDER TO DISCONTINUE VIOLATION WAS SERVED THEREAFTER ON JULY 31, BUT
WAS NOT FOLLOWED BY SERVICE OF A CRIMINAL SUMMONS WHEN THE VIOLATION
WAS NOT DISCONTINUED WITHIN 48 HOURS.  /1/ 

THE COURT ARGUES THAT, BECAUSE A ZONING ORDINANCE "HAS AN IMPACT ON
THE VALUE OF THE PROPERTY WHICH IT REGULATES," THERE IS A COGNIZABLE
CASE OR CONTROVERSY.  BUT EVEN IF LESSOR APPELLEES FOR THAT REASON HAVE
A PERSONAL STAKE, AND WE WERE TO CONDEDE THAT LANDLORD AND TENANT
INTERESTS INTERTWINE IN RESPECT OF THE ORDINANCE, I CANNOT SEE, ON THE
PRESENT RECORD, HOW IT CAN BE CONCLUDED THAT "IT WOULD BE DIFFICULT IF
NOT IMPOSSIBLE," BARROWS V. JACKSON, SUPRA, AT 257, FOR PRESENT OR
PROSPECTIVE UNRELATED TENANT GROUPS OF MORE THAN TWO TO ASSERT THEIR
OWN RIGHTS BEFORE THE COURTS, SINCE THE DEPARTED TENANT APPELLEES HAD
NO DIFFICULTY IN DOING SO.  THUS, THE SECOND REQUIREMENT OF THE
EXCEPTION WOULD NOT PRESENTLY APPEAR TO BE SATISFIED.  ACCORDINGLY IT
IS IRRELEVANT THAT THE HOUSE WAS LET, AS WE ARE NOW INFORMED, TO OTHER
UNRELATED TENANTS ON A MONTH-TO-MONTH BASIS AFTER THE TENANT APPELLEES
MOVED OUT.  NONE OF THE NEW TENANTS HAS SOUGHT TO INTERVENE IN THIS
SUIT.  INDEED, FOR ALL THAT APPEARS, THEY TOO MAY HAVE MOVED OUT AND
THE HOUSE MAY BE VACANT. 

I DISSENT AND WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.  IF THE DISTRICT
COURT DETERMINES THAT A COGNIZABLE CASE OR CONTROVERSY NO LONGER
EXISTS, THE COMPLAINT SHOULD BE DISMISSED.  GOLDEN V. ZWICKLER, 394
U.S. 103 (1969). 

/1/  IN THISE CIRCUMSTANCES, I AGREE WITH THE COURT THAT NO CRIMINAL
ACTION WAS "PENDING" WHEN THIS SUIT WAS BROUGHT AND THAT THEREFORE THE
DISTRICT COURT CORRECTLY DECLINED TO APPLY THE PRINCIPLES OF YOUNGER V.
HARRIS, 401 U.S. 37 (1971). 

MR. JUSTICE MARSHALL, DISSENTING. 

THIS CASE DRAWS INTO QUESTION THE CONSTITUTIONALITY OF A ZONING
ORDINANCE OF THE INCORPORATED VILLAGE OF BELLE TERRE, NEW YORK, WHICH
PROHIBITS GROUPS OF MORE THAN TWO UNRELATED PERSONS, AS DISTINGUISHED
FROM GROUPS CONSISTING OF ANY NUMBER OF PERSONS RELATED BY BLOOD,
ADOPTION OR MARRIAGE, FROM OCCUPYING A RESIDENCE WITHIN THE CONFINES OF
THE TOWNSHIP.  /1/  LESSOR-APPELLEES, THE TWO OWNERS OF A BELLE TERRE
RESIDENCE, AND THREE UNRELATED STUDENT TENANTS CHALLENGED THE ORDINANCE
ON THE GROUND THAT IT ESTABLISHES A CLASSIFICATION BETWEEN HOUSEHOLDS
OF RELATED AND UNRELATED INDIVIDUALS, WHICH DEPREIVES THEM OF EQUAL
PROTECTION OF THE LAWS.  IN MY VIEW, THE DISPUTED CLASSIFICATION
BURDENS THE STUDENTS' FUNDAMENTAL RIGHTS OF ASSOCIATION AND PRIVACY
GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  BECAUSE THE
APPLICATION OF STRICT EQUAL PROTECTION SCRUTINY IS THEREFORE REQUIRED,
I AM AT ODDS WITH MY BRETHREN'S CONCLUSION THAT THE ORDINANCE MAY BE
SUSTAINED ON A SHOWING THAT IT BEARS A RATIONAL RELATIONSHIP TO THE
ACCOMPLISHMENT OF LEGITIMATE GOVERNMENTAL OBJECTIVES. 

I AM IN FULL AGREEMENT WITH THE MAJORITY THAT ZONING IS A COMPLEX
AND IMPORTANT FUNCTION OF THE STATE.  IT MAY INDEED BY THE MOST
ESSENTIAL FUNCTION PERFORMED BY LOCAL GOVERNMENT, FOR IT IS ONE OF THE
PRIMARY MEANS BY WHICH WE PROTECT THAT SOMETIMES DIFFICULT TO DEFINE
CONCEPT OF QUALITY OF LIFE.  I THEREFORE CONTINUE TO ADHERE TO THE
PRINCIPLE OF EUCLID V. AMBLER REALTY CO., 272 U.S. 365 (1926), THAT
DEFERENCE SHOULD BE GIVEN TO GOVERNMENTAL JUDGMENTS CONCERNING PROPER
LAND-USE ALLOCATION.  THAT DEFERENCE IS A PRINCIPLE WHICH HAS SERVED
THIS COURT WILL AND WHICH IS NECESSARY FOR THE CONTINUED DEVELOPMENT OF
EFFECTIVE ZONING AND LAND-USE CONTROL MECHANISMS.  HAD THE OWNERS ALONE
BROUGHT THIS SUIT ALLEGING THAT THE RESTRICTIVE ORDINANCE DEPRIVED THEM
OF THEIR PROPERTY OF WAS AN IRRATIONAL LEGISLATIVE CLASSIFICATION, I
WOULD AGREE THAT THE ORDINANCE WOULD HAVE TO BE SUSTAINED.  OUR ROLE IS
NOT AND SHOULD NOT BE TO SIT AS A ZONING BOARD OF APPEALS. 

I WOULD ALSO AGREE WITH THE MAJORITY THAT LOCAL ZONING AUTHORITIES
MAY PROPERLY ACT IN FURTHERANCE OF THE OBJECTIVES ASSERTED TO BE SERVED
BY THE ORDINANCE AT ISSUE HERE:  RESTRICTING UNCONTROLLED GROWTH,
SOLVING TRAFFIC PROBLEMS, KEEPING RENTAL COSTS AT A REASONABLE LEVEL,
AND MAKING THE COMMUNITY ATTRACTIVE TO FAMILIES.  THE POLICE POWER
WHICH PROVIDES THE JUSTIFICATION FOR ZONING IS NOT NARROWLY CONFINED. 
SEE BERMAN V. PARKER, 348 U.S. 26 (1954).  AND, IT IS APPROPRIATE THAT
WE AFFORD ZONING AUTHORITIES CONSIDERABLE LATITUDE IN CHOOSING THE
MEANS BY WHICH TO IMPLEMENT SUCH PURPOSES.  BUT DEFERENCE DOES NOT MEAN
ABDICATION.  THIS COURT HAS AN OBLIGATION TO ENSURE THAT ZONING
ORDINANCES, EVEN WHEN ADOPTED IN FURTHERANCE OF SUCH LEGITIMATE AIMS,
DO NOT INFRINGE UPON FUNDAMENTAL CONSTITUTIONAL RIGHTS. 

WHEN SEPARATE BUT EQUAL WAS STILL ACCEPTED CONSTITUTIONAL DOGMA,
THIS COURT STRUCK DOWN A RACIALLY RESTRICTIVE ZONING ORDINANCE. 
BUCHANAN V. WARLEY, 245 U.S. 60 (1917).  I AM SURE THE COURT WOULD NOT
BE HESITANT TO INVALIDATE THAT ORDINANCE TODAY.  THE LOWER FEDERAL
COURTS HAVE CONSIDERED PROCEDURAL ASPECTS OF ZONING, /2/  AND ACTED TO
INSURE THAT LAND-USE CONTROLS ARE NOT USED AS MEANS OF CONFINING
MINORITIES AND THE POOR TO THE GHETTOS OF OUR CENTRAL CITIES.  /3/
THESE ARE LIMITED BUT NECESSARY INTRUSIONS ON THE DISCRETION OF ZONING
AUTHORITIES.  BY THE SAME TOKEN, I THINK IT CLEAR THAT THE FIRST
AMENDMENT PROVIDES SOME LIMITATION ON ZONING LAWS.  IT IS INCONCEIVABLE
TO ME THAT WE WOULD ALLOW THE EXERCISE OF THE ZONING POWER TO BURDEN
FIRST AMENDMENT FREEDOMS, AS BY ORDINANCES THAT RESTRICT OCCUPANCY TO
INDIVIDUALS ADHERING TO PARTICULAR RELIGIOUS, POLITICAL, OR SCIENTIFIC
BELIEFS.  ZONING OFFICIALS PROPERLY CONCERN THEMSELVES WITH THE USES OF
LAND--WITH, FOR EXAMPLE, THE NUMBER AND KIND OF DWELLINGS TO BE
CONSTRUCTED IN A CERTAIN NEIGHBORHOOD OR THE NUMBER OF PERSONS WHO CAN
RESIDE IN THOSE DWELLINGS.  NUT ZONING AUTHORITIES CANNOT VALIDLY
CONSIDER WHO THOSE PERSONS ARE, WHAT THEY BELIEVE, OR HOW THEY CHOOSE
TO LIVE, WHETHER THEY ARE NEGRO OR WHITE, CATHOLIC OR JEW, REPUBLICAN
OR DEMOCRAT, MARRIED OR UNMARRIED. 

MY DISAGREEMENT WITH THE COURT TODAY IS BASED UPON MY VIEW THAT THE
ORDINANCE IN THIS CASE UNNECESSARILY BURDENS APPELLEES' FIRST AMENDMENT
FREEDOM OF ASSOCIATION AND THEIR CONSTITUTIONALLY GUARANTEED RIGHT TO
PRIVACY.  OUR DECISIONS ESTABLISH THAT THE FIRST AND FOURTEENTH
AMENDMENTS PROTECT THE FREEDOM TO CHOOSE ONE'S ASSOCIATES.  NAACP V.
BUTTON, 371 U.S. 415, 430 (1963).  CONSTITUTIONAL PROTECTION IS
EXTENDED, NOT ONLY TO MODES OF ASSOCIATION THAT ARE POLITICAL IN THE
USUAL SENSE, BUT ALSO TO THOSE THAT PERTAIN TO THE SOCIAL AND ECONOMIC
BENEFIT OF THE MEMBERS.  ID., AT 430 - 431; BROTHERHOOD OF RAILROAD
TRAINMEN V. VIRGINIA BAR, 377 U.S. 1 (1964).  SEE UNITED TRANSPORTATION
UNION V. STATE BAR OF MICHIGAN, 401 U.S. 576 (1971); MINE WORKERS V.
ILLINOIS STATE BAR ASSN., 389 U.S. 217 (1967).  THE SELECTION OF ONE'S
LIVING COMPANIONS INVOLVES SIMILAR CHOICES AS TO THE EMOTIONAL, SOCIAL,
OR ECONOMIC BENEFITS TO BE DERIVED FROM ALTERNATIVE LIVING
ARRANGEMENTS. 

THE FREEDOM OF ASSOCIATION IS OFTEN INEXTRICABLY ENTWINED WITH THE
CONSTITUTIONALLY GUARANTEED RIGHT OF PRIVACY.  THE RIGHT TO "ESTABLISH
A HOME" IS AN ESSENTIAL PART OF THE LIBERTY GUARANTEED BY THE
FOURTEENTH AMENDMENT.  MEYER V. NEBRASKA, 262 U.S. 390, 399 (1923):
GRISWOLD V. CONNECTICUT, 381 U.S. 479, 495 (1965) (GOLDBERG, J.,
CONCURRING).  AND THE CONSTITUTION SECURES TO AN INDIVIDUAL A FREEDOM
"TO SATISFY HIS INTELLECTUAL AND EMOTIONAL NEEDS IN THE PRIVACY OF HIS
OWN HOME."  STANLEY V. GEORGIA, 394 U.S. 557, 565 (1969); SEE PARIS
ADULT THEATRE I V. SLATON, 413 U.S. 49, 66 - 67 (1973). 
CONSTITUTIONALLY PROTECTED PRIVACY IS, IN MR. JUSTICE BRANDEIS'  WORDS,
"AS AGAINST THE GOVERNMENT, THE RIGHT TO BE LET ALONE . . . THE RIGHT
MOST VALUED BY CIVILIZED MAN."  OLMSTEAD V. UNITED STATES, 277 U.S.
438, 478 (1928) (DISSENTING OPINION).  THE CHOICE OF HOUSEHOLD
COMPANIONS--OF WHETHER A PERSON'S "INTELLECTUAL AND EMOTIONAL NEEDS"
ARE BEST MET BY LIVING WITH FAMILY, FRIENDS, PROFESSIONAL ASSOCIATES OR
OTHERS--INVOLVES DEEPLY PERSONAL CONSIDERATIONS AS TO THE KIND AND
QUALITY OF INTIMATE RELATIONSHIPS WITHIN THE HOME.  THAT DECISION
SURELY FALLS WITHIN THE AMBIT OF THE RIGHT TO PRIVACY PROTECTED BY THE
CONSTITUTION.  SEE ROE V. WADE, 410 U.S. 113, 153 (1973); EISENSTADT V.
BAIRD, 405 U.S. 438, 453 (1972); STANLEY V. GEORGIA, SUPRA, AT 564 -
565; GRISWOLD V. CONNECTICUT, SUPRA, AT 483 486; OLMSTEAD V. UNITED
STATES, SUPRA, AT 478 (BRANDEIS, J., DISSENTING); MORENO V. DEPARTMENT
OF AGRICULTURE, 345 F. SUPP. 310, 315 (DC 1972), AFF'D, 413 U.S. 528
(1973). 

THE INSTANT ORDINANCE DISCRIMINATES ON THE BASIS OF JUST SUCH A
PERSONAL LIFESTYLE CHOICE AS TO HOUSEHOLD COMPANIONS.  IT PERMITS ANY
NUMBER OF PERSONS RELATED BY BLOOD OR MARRIAGE, BE IT TWO OR TWENTY, TO
LIVE IN A SINGLE HOUSEHOLD, BUT IT LIMITS TO TWO THE NUMBER OF
UNRELATED PERSONS BOUND BY PROFESSION, LOVE, FRIENDSHIP, RELIGIOUS OR
POLITICAL AFFILIATION, OR MERE ECONOMICS WHO CAN OCCUPY A SINGLE HOME. 
BELLE TERRE IMPOSES UPON THOSE WHO DEVIATE FROM THE COMMUNITY NORM IN
THEIR CHOICE OF LIVING COMPANIONS SIGNIFICANTLY GREATER RESTRICTIONS
THAN ARE APPLIED TO RESIDENTIAL GROUPS WHO ARE RELATED BY BLOOD OR
MARRIAGE, AND COMPOSE THE ESTABLISHED ORDER WITHIN THE COMMUNITY.  /4/
THE TOWN HAS, IN EFFECT, ACTED TO FENCE OUT THOSE INDIVIDUALS WHOSE
CHOICE OF LIFESTYLE DIFFERS FROM THAT OF ITS CURRENT RESIDENTS.  /5/ 
THIS IS NOT A CASE WHERE THE COURT IS BEING ASKED TO NULLIGY A
TOWNSHIP'S SINCERE EFFORTS TO MAINTAIN ITS RESIDENTIAL CHARACTER BY
PREVENTING THE OPERATION OF ROOMING HOUSES, FRATERNITY HOUSES, OR OTHER
COMMERCIAL OR HIGH-DENSITY RESIDENTAL USES.  UNQUESTIONABLY, A TOWN IS
FREE TO RESTRICT SUCH USES.  MOREOVER, AS A GENERAL PROPOSITION, I SEE
NO CONSTITUTIONAL INFIRMITY IN A TOWN LIMITING THE DENSITY OF USE IN
RESIDENTIAL AREAS BY ZONING REGULATIONS WHICH DO NOT DISCRIMINATE ON
THE BASIS OF CONSTITUTIONALLY SUSPECT CRITERIA.  /6/  THIS ORDINANCE,
HOWEVER, LIMITS THE DENSITY OF OCCUPANCY OF ONLY THOSE HOMES OCCUPIED
BY UNRELATED PERSONS.  IT THUS REACHES BEYOND CONTROL OF THE USE OF
LAND OR THE DENSITY OF POPULATION, AND UNDERTAKES TO REGULATE THE WAY
PEOPLE CHOOSE TO ASSOCIATE WITH EACH OTHER WITHIN THE PRIVACY OF THEIR
OWN HOMES. 

IT IS NO ANSWER TO SAY, AS DOES THE MAJORITY, THAT ASSOCIATIONAL
INTERESTS ARE NOT INFRINGED BECAUSE BELLE TERRE RESIDENTS MAY ENTERTAIN
WHOMEVER THEY CHOOSE.  ONLY LAST TERM MR. JUSTICE DOUGLAS INDICATED IN
CONCURRENCE THAT HE SAW THE RIGHT OF ASSOCIATION PROTECTED BY THE FIRST
AMENDMENT AS INVOLVING FAR MORE THAN THE RIGHT TO ENTERTAIN VISITORS. 
HE FOUND THAT RIGHT INFRINGED BY A RESTRICTION ON FOOD STAMP
ASSISTANCE, PENALIZING HOUSEHOLDS OF "UNRELATED PERSONS."  AS MR.
JUSTICE DOUGLAS THERE SAID, FREEDOM OF ASSOCIATION ENCOMPASSES THE
"RIGHT TO INVITE THE STRANGER INTO ONE'S HOME" NOT ONLY FOR
"ENTERTAINMENT" BUT TO JOIN THE HOUSEHOLD AS WELL.  DEPARTMENT OF
AGRICULTURE V. MORENO, 413 U.S. 528, 538 - 545 (1973) (CONCURRING
OPINION).  I AM STILL PERSUADED THAT THE CHOICE OF THOSE WHO WILL FROM
ONE'S HOUSEHOLD IMPLICATES CONSTITUTIONALLY PROTECTED RIGHTS. 

BECAUSE I BELIEVE THAT THIS ZONING ORDINANCE CREATES A
CLASSIFICATION WHICH IMPINGES UPON FUNDAMENTAL PERSONAL RIGHTS, IT CAN
WITHSTAND CONSTITUTIONAL SCRUTINY ONLY UPON A CLEAR SHOWING THAT THE
BURDEN IMPOSED IS NECESSARY TO PROTECT A COMPELLING AND SUBSTANTIAL
GOVERNMENTAL INTEREST, SHAPIRO V. THOMPSON, 394 U.S. 618, 634 (1969). 
AND, ONCE IT BE DETERMINED THAT A BURDEN HAS BEEN PLACED UPON A
CONSTITUTIONAL RIGHT, THE ONUS OF DEMONSTRATING THAT NO LESS INTRUSIVE
MEANS WILL ADEQUATELY PROTECT THE COMPELLING STATE INTEREST AND THAT
THE CHALLENGED STATUTE IS SUFFICIENTLY NARROWLY DRAWN, IS UPON THE
PARTY SEEKING TO JUSTIFY THE BURDEN.  SEE MEMORIAL HOSPITAL V. MARICOPA
COUNTY, 415 U.S. 250 (1974); SPEISER V. RANDALL, 357 U.S. 513, 525 -
526 (1958). 

A VARIETY OF JUSTIFICATIONS HAVE BEEN PROFFERED IN SUPPORT OF THE
VILLAGE'S ORDINANCE.  IT IS CLAIMED THAT THE ORDINANCE CONTROLS
POPULATION DENSITY, PREVENTS NOISE, TRAFFIC AND PARKING PROBLEMS, AND
PRESERVES THE RENT STRUCTURE OF THE COMMUNITY AND ITS ATTRACTIVENESS TO
FAMILIES.  AS I NOTED EARLIER, THESE ARE ALL LEGITIMATE AND SUBSTANTIAL
INTERESTS OF GOVERNMENT.  BUT I THINK IT CLEAR THAT THE MEANS CHOSEN TO
ACCOMPLISH THESE PURPOSES ARE BOTH OVERINCLUSIVE AND UNDERINCLUSIVE,
AND THAT THE ASSERTED GOALS COULD BE AS EFFECTIVELY ACHIEVED BY MEANS
OF AN ORDINANCE THAT DID NOT DISCRIMINATE ON THE BASIS OF
CONSTITUTIONALLY PROTECTED CHOICES OF LIFESTYLE.  THE ORDINANCE IMPOSES
NO RESTRICTION WHATSOEVER ON THE NUMBER OF PERSONS WHO MAY LIVE IN A
HOUSE, AS LONG AS THEY ARE RELATED BY MARITAL OR SANGUNARY BONDS-
PRESUMABLY NO MATTER HOW DISTANT THEIR RELATIONSHIP.  NOR DOES THE
ORDINANCE RESTRICT THE NUMBER OF INCOME EARNERS WHO MAY CONTRIBUTE TO
RENT IN SUCH A HOUSEHOLD, OR THE NUMBER OF AUTOMOBILES THAT MAY BE
MAINTAINED BY ITS OCCUPANTS.  IN THAT SENSE THE ORDINANCE IS
UNDERINCLUSIVE.  ON THE OTHER HAND, THE STATUTE RESTRICTS THE NUMBER OF
UNRELATED PERSON'S WHO MAY LIVE IN A HOME TO NO MORE THAN TWO.  IT
WOULD THEREFORE PREVENT THREE UNRELATED PEOPLE FROM OCCUPYING A
DWELLING EVEN IF AMONG THEM THEY HAD BUT ONE INCOME AND NO VEHICLES. 
WHILE AN EXTENDED FAMILY OF A DOZEN OR MORE MIGHT LIVE IN A SMALL
BUNGALOW, THREE ELDERLY AND RETIRED PERSONS COULD NOT OCCUPY THE LARGE
MANOR HOUSE NEXT DOOR.  THUS THE STATUTE IS ALSO GROSSLY OVERINCLUSIVE
TO ACCOMPLISH ITS INTENDED PURPOSES. 

THERE ARE SOME 220 RESIDENCES IN BELLE TERRE OCCUPIED BY ABOUT 700
PERSONS.  THE DENSITY IS THEREFORE JUST ABOVE THREE PER HOUSEHOLD.  THE
VILLAGE IS JUSTIFIABLY CONCERNED WITH DENSITY OF PUPULATION AND THE
RELATED PROBLEMS OF NOISE, TRAFFIC, AND THE LIKE.  IT COULD DEAL WITH
THOSE PROBLEMS BY LIMITING EACH HOUSEHOLD TO A SPECIFIED NUMBER OF
ADULTS, TWO OR THREE PERHAPS, WITHOUT LIMITATION ON THE NUMBER OF
DEPENDENT CHILDREN.  /7/  THE BURDEN OF SUCH AN ORDINANCE WOULD FALL
EQUALLY UPON ALL SEGMENTS OF THE COMMUNITY.  IT WOULD SURELY BE BETTER
TAILORED TO THE GOALS ASSERTED BY THE TOWNSHIP THAN THE ORDINANCE
BEFORE US TODAY, FOR IT WOULD MORE REALISTICALLY RESTRICT POPULATION
DENSITY AND GROWTH AND THEIR ATTENDANT ENVIRONMENTAL COSTS.  VARIOUS
OTHER STATUTORY MECHANUSMS ALSO SUGGEST THEMSELVES AS SOLUTIONS TO
BELLE TERRE'S PROBLEMS--RENT CONTROL, LIMITS ON THE NUMBER OF VEHICLES
PER HOUSEHOLD, AND SO FORTH, BUT, OF COURSE, SUCH SCHEMES ARE MATTERS
OF LEGISLATIVE JUDGMENT AND NOT FOR THIS COURT.  APPELLANTS ALSO REFER
TO THE NECESSITY OF MAINTAINING THE FAMILY CHARACTER OF THE VILLAGE. 
THERE IS NOT A SHRED OF EVIDENCE IN THE RECORD INDICATING THAT IF BELLE
TERRE PERMITTED A LIMITED NUMBER OF UNRELATED PERSONS TO LIVE TOGETHER,
THE RESIDENTIAL, FAMILIAL CHARACTER OF THE COMMUNITY WOULD BE
FUNDAMENTALLY AFFECTED. 

BY LIMITING UNRELATED HOUSEHOLDS TO TWO PERSON WHILE PLACING NO
LIMITATION ON HOUSEHOLDS OF RELATED INDIVIDUALS, THE VILLAGE HAS
EMBARKED UPON ITS COMMENDABLE COURSE IN A CONSTITUTIONALLY FAULTY
VESSEL.  CF. MARSHALL V. UNITED STATES, 414 U.S. 417, 430 (1974)
(DISSENTING OPINION).  I WOULD FIND THE CHALLENGED ORDINANCE
UNCONSTITUTIONAL.  BUT I WOULD NOT ASK THE VILLAGE TO ABANDON ITS GOAL
OF PROVIDING QUIET STREETS, LITTLE TRAFFIC, AND A PLEASANT AND
REASONABLY PRICED ENVIRONMENT IN WHICH FAMILIES MIGHT RAISE THEIR
CHILDREN.  RATHER, I WOULD COMMEND THE TOWN TO CONTINUE TO PURSUE THOSE
PURPOSES BUT BY MEANS OF MORE CAREFULLY DRAWN AND EVEN-HANDED
LEGISLATION. 

I RESPECTFULLY DISSENT. 

/1/  THE TEXT OF THE ORDINANCE IS REPRINTED IN PART, ANTE, AT 2. 

/2/  SEE CITIZENS ASSN. OF GEORGETOWN V. ZONING COMM'N, 155 U.S.,
APP. D.C. 233, 477 2D 402 (1973). 

/3/  SEE KENNEDY PARK HOMES ASSN. V. LACKAWANNA, 436 F.2D 108 (CA2
1970); DAILEY V. CITY OF LAWTON, 425 F.2D 1037 (CA10 1970); CF.
GAUTREAUX V. CITY OF CHICAGO, 480 F.2D 210 (CA7 1973); CROW V. BROWN,
457 F.2D 788 (CA5 1972); SOUTHERN ALAMEDA SPANISH SPEAKING ORGAINZATION
V. UNION CITY, 424 F.2D 291 (CA9 1970).  SEE GENERALLY SAGER, TIGHT
LITTLE ISLANDS: EXCLUSIONARY ZONING, EQUAL PROTECTION, AND THE INDIGENT
21 STAN.  L. REV. 767 (1969); NOTE, EXCLUSIONARY ZONING AND EQUAL
PROTECTION, 84 HARV. L. REV. 1645 (1971); NOTE, THE RESPONSIBILITY OF
LOCAL ZONING AUTHORITIES TO NONRESIDENT INDIGENTS, 23 STAN.  L. REV.
774 (1971). 

/4/  "PERHAPS IN AN IDEAL WORLD, PLANNING AND ZONING WOULD BE DONE
ON A REGIONAL BASIS, SO THAT A GIVEN COMMUNITY WOULD HAVE APARTMENTS,
WHILE AN ADJOINING COMMUNITY WOULD NOT.  BUT AS LONG AS WE ALLOW ZONING
TO BE DONE COMMUNITY BY COMMUNITY, IT IS INTOLERABLE TO ALLOW ONE
MUNICIPALITY (OR MANY MUNICIPALITIES) TO CLOSE ITS DOORS AT THE EXPENSE
OF SURROUNDING COMMUNITIES AND THE CENTRAL CITY."  APPEAL OF GIRSH, 437
PA. 237, 245 N. 4, 263 A. 2D 395, 399 N. 4 (1970). 

/5/  SEE GENERALLY NOTE, ON PRIVACY: CONSTITUTIONAL PROTECTION FOR
PERSONAL LIBERTY, 48 N.Y.U.L. REV. 670, 740 - 750 (1973). 

/6/  SEE PALO ALTO TENANTS' UNION V. MORGAN, 487 F.2D 883 (CA9
1973). 

/7/  BY PROVIDING AN EXCEPTION FOR DEPENDENT CHILDREN, THE TOWNSHIP
WOULD AVOID ANY DOUBTS THAT MIGHT OTHERWISE BE POSED BY THE
CONSTITUTIONAL PROTECTION AFFORDED THE CHOICE OF WHETHER TO BEAR A
CHILD.  SEE MOLINO V. MAYOR & COUNCIL OF GLASSBORO, 116 N.J. SUPER. 
195, 281 A. 2D 401 (1971); CF. CLEVELAND BOARD OF EDUCATION V. LAFLEUR,
414 U.S. 632 (1974). 
..END :



















CALIFORNIA BANKERS ASSN. V. SHULTZ, 416 U.S. 21 


       CALIFORNIA BANKERS ASSN. V. SHULTZ, SECRETARY OF THE

           TREASURY, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

        NO. 72 - 985.  ARGUED JANUARY 16, 1974--DECIDED APRIL 1,

           1974* (347 F. SUPP. 1242, AFFIRMED IN PART, REVERSED IN

           PART, AND REMANDED.) 

     *TOGETHER WITH NO. 72 - 1073, SHULTZ, SECRETARY OF THE

  TREASURY, ET AL. V. CALIFORNIA BANKERS ASSN. ET AL.; AND NO. 72 -

  1196, STARK ET AL. V. SHULTZ, SECRETARY OF THE TREASURY, ET AL.,

  ALSO ON APPEAL FROM THE SAME COURT. 


    THE BANK SECRECY ACT OF 1970, WHICH WAS ENACTED FOLLOWING

  EXTENSIVE HEARINGS CONCERNING THE UNAVAILABILITY OF FOREIGN AND

  DOMESTIC BANK RECORDS OF CUSTOMERS THOUGHT TO BE ENGAGED IN

  ILLEGAL ACTIVITIES, AUTHORIZES THE SECRETARY OF THE TREASURY TO

  PRESCRIBE BY REGULATION CERTAIN BANK RECORDKEEPING AND REPORTING

  REQUIREMENTS, THE ACT'S PENALTIES ATTACHING ONLY UPON VIOLATION

  OF THE REGULATIONS THUS PRESCRIBED.  (UNLESS OTHERWISE INDICATED,

  REFERENCES BELOW TO THE ACT ALSO INCLUDE THE ACCOMPANYING

  REGULATIONS.)  THE ACT IS DESIGNED TO OBTAIN FINANCIAL
INFORMATION

  HAVING "A HIGH DEGREE OF USEFULNESS IN CRIMINAL, TAX, OR

  REGULATORY INVESTIGATIONS OR PROCEEDINGS."  TITLE I OF THE ACT

  REQUIRES FINANCIAL INSTITUTIONS TO MAINTAIN RECORDS OF THEIR

  CUSTOMERS' IDENTITIES, TO MAKE MICRLFILM COPIES OF CHECKS AND

  SIMILAR INSTRUMENTS, AND TO KEEP RECORDS OF CERTAIN OTHER ITEMS. 

  TITLE II REQUIRES THE REPORTING TO THE FEDERAL GOVERNMENT OF

  CERTAIN FOREIGN AND DOMESTIC FINANCIAL TRANSACTIONS.  TITLE II,

  231, REQUIRES REPORTS OF THE TRANSPORTATION OF CURRENCY AND

  SPECIFIED INSTRUMENTS EXCEEDING $5,000 INTO OR OUT OF THE

  COUNTRY, EXCEPTION BEING MADE, INTER ALIA, FOR BANKS AND SECURITY

DEALERS.  SECTION 241 REQUIRES INDIVIDUALS WITH BANK ACCOUNTS OR

  OTHER RELATIONSHIPS WITH FOREIGN BANKS TO PROVIDE SPECIFIED

  INFORMATION ON A TAX RETURN FORM.  SECTION 221 DELEGATES TO THE

  SECRETARY OF THE TREASURY THE AUTHORITY TO REQUIRE REPORTS OF

  TRANSACTIONS "IF THEY INVOLVE THE PAYMENT, RECEIPT, OR TRANSFER

  OF UNITED STATES CURRENCY, OR SUCH OTHER MONETARY INSTRUMENTS AS

  THE SECRETARY MAY SPECIFY . . .," 222 PROVIDING THAT HE MAY

  REQUIRE SUCH REPORTS FROM THE DOMESTIC FINANCIAL INSTITUTION

  INVOLVED, THE PARTIES TO THE TRANSACTION, OR BOTH, AND 223

  PROVIDING THAT HE MAY DESIGNATE FINANCIAL INSTITUTIONS TO RECEIVE

  THE REPORTS.  UNDER THE IMPLEMENTING REGULATIONS ONLY FINANCIAL

  INSTITUTIONS MUST FILE REPORTS WITH THE INTERNAL REVENUE SERVICE

  (IRS), AND THEN ONLY WHERE THE TRANSACTION INVOLVES THE DEPOSIT,

  WITHDRAWAL, EXCHANGE, OR OTHER PAYMENT OF CURRENCY EXCEEDING

  $10,000.  THE REGULATIONS PROVIDE THAT THE SECRETARY MAY GRANT

  EXEMPTIONS FROM THE REQUIREMENTS OF THE REGULATIONS.  SUITS WERE

  BROUGHT BY VARIOUS PLAINTIFFS CHALLENGING THE CONSTITUTIONALITY

  OF THE ACT, PRINCIPALLY ON THE GROUND THAT IT VIOLATED THE FOURTH

  AMENDMENT, BECAUSE WHEN THE BANK MAKES AND KEEPS RECORDS UNDER

  COMPULSION OF THE SECRETARY'S REGULATIONS IT ACTS AS A GOVERNMENT

  AGENT AND THEREBY ENGAGES IN A "SEIZURE"  OF ITS CUSTOMER'S

  RECORDS.  A THREE-JUDGE DISTRICT COURT, THOUGH UPHOLDING THE

  RECORDKEEPING REQUIREMENTS OF TITLE I OF THE ACT AND THE FOREIGN

  TRANSACTION REPORTING REQUIREMENTS OF TITLE II, CONCLUDED THAT

  THE DOMESTIC REPORTING PROVISIONS OF TITLE II, 221 - 223,

  CONTRAVENED THE FOURTH AMENDMENT, AND ENJOINED THEIR

  ENFORCEMENT.  THREE SEPARATE APPEALS WERE TAKEN.  IN NO., 72 -

  985, THE CALIFORNIA BANKERS ASSOCIATION, A PLAINTIFF BELOW,

  ASSERTS THAT TITLE I'S RECORDKEEPING PROVISIONS VIOLATE (1) DUE

  PROCESS, BECAUSE THERE IS NO RATIONAL RELATIONSHIP BETWEEN THE

  ACT'S OBJECTIVES AND THE REQUIRED RECORDKEEPING AND BECAUSE THE

  ACT IS UNDULY BURDENSOME, AND (2) RIGHTS OF PRIVACY.  IN NO. 72 -

  1196, A BANK PLAINTIFF, CERTAIN PLAINTIFF DEPOSITORS, AND THE

  AMERICAN CIVIL LEBERTIES UNION (ACLU), ALSO A PLAINTIFF, AS A

  DEPOSITOR IN A BANK SUBJECT TO THE RECORDKEEPING REQUIREMENTS AND

  AS A REPRESENTATIVE OF ITS BANK CUSTOMER MEMBERS, ATTACK BOTH THE

  TITLE 1 RECORDKEEPING REQUIREMENTS AND THE TITLE II FOREIGN

FINANCIAL TRANSACTION REPORTING REQUIREMENTS ON FOURTH AMENDMENT

  GROUNDS; ON FIFTH AMENDMENT GROUNDS, AS VIOLATING THE PRIVILEGE

  AGAINST COMPULSORY SELF-INCRIMINATION; AND ON FIRST AMENDMENT

  GROUNDS, AS VIOLATING FREE SPEECH AND FREE ASSOCIATION RIGHTS. 

  IN NO. 72 - 1073, THE SECRETARY ASSERTS THAT THE DISTRICT COURT

  ERRED IN HOLDING TITLE II'S DOMESTIC FINANCIAL TRANSACTION

  REPORTING REQUIREMENTS FACIALLY INVALID WITHOUT CONSIDERING THE

  ACTUAL IMPLEMENTATION OF THE STATUTE BY THE REGULATIONS.  HELD: 

1.  TITLE I'S RECORDKEEPING REQUIREMENTS, WHICH ARE A PROPER

  EXERCISE OF CONGRESS' POWER TO DEAL WITH THE PROBLEM OF CRIME IN

  INTERSTATE AND FOREIGN COMMERCE, DO NOT DEPRIVE THE BANK

  PLAINTIFFS OF DUE PROCESS OF LAW.  PP. 45 - 52. 

     (A) THERE IS A SUFFICIENT NEXUS BETWEEN THE EVIL CONGRESS

  SOUGHT TO ADDRESS AND THE RECORDKEEPING PROCEDURE TO MEET THE

  REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT,

  AND THE FACT THAT BANKS ARE NOT MERE BYSTANDERS IN TRANSACTIONS

  INVOLVING NEGOTIABLE INSTRUMENTS BUT HAVE A SUBSTANTIAL STAKE IN

  THEIR AVAILABILITY AND ACCEPTANCE AND ARE THE MOST EASILY

  IDENTIFIABLE PARTY TO THE INSTRUMENTS, MAKES IT APPROPRIATE FOR

  THE BANKS RATHER THAN OTHER TO DO THE RECORDKEEPING.  UNITED

  STATES V. DARBY, 312 U.S. 100; SHAPIRO V. UNITED STATES, 335 U.S.

  1.  PP. 45 - 49. 

     (B) THE COST BURDENS ON THE BANKS OF THE RECORDKEEPING

  REQUIREMENTS ARE NOT UNREASONABLE.  P. 50. 

     (C) THE BANK PLAINTIFFS' CLAIM THAT THE RECORDKEEPING

  REQUIREMENTS UNDERMINE THE RIGHT OF A DEPOSITOR EFFECTIVELY TO

  CHALLENGE AN IRS THIRD-PARTY SUMMONS IS PREMATURE, ABSENT THE

  ISSUANCE OF SUCH PROCESS INVOLVING A DESPOSITOR'S TRANSACTIONS. 

  PP. 51 - 52. 

   2.  TITLE 1'S RECORDKEEPING PROVISIONS DO NOT VIOLATE THE

  FOURTH AMENDMENT RIGHTS OF WITHER THE BANK OR DEPOSITOR

  PLAINTIFFS, THE MERE MAINTENANCE BY THE BANK OF RECORDS WITHOUT

  ANY REQUIREMENT THAT THEY BE DISCLOSED TO THE GOVERNMENT (WHICH

  CAN SECURE ACCESS ONLY BY EXISTING LEGAL PROCESS) CONSTITUTING NO

  ILLEGAL SEARCH AND SEIZURE.  PP. 52 - 54. 

     3.  TITLE 1'S RECORDKEEPING PROVISIONS DO NOT VIOLATE THE
FIFTH

  AMENDMENT RIGHTS OF WITHER THE BANK OR DEPOSITOR PLAINTIFFS.  P.

  55. 

     (A) THE BANK PLAINTIFFS, BEING CORPORATIONS, HAVE NO

  CONSTITUTIONAL PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION BY

VIRTUE OF THE FIFTH AMENDMENT.  HALE V. HENKEL, 201 U.S. 43, 74 -

  75.  P. 55. 

     (B) A DEPOSITOR PLAINTIFF INCRIMINATED BY EVIDENCE PRODUCED BY

  A THIRD PARTY SUSTAINS NO VIOLATION OF HIS OWN FIFTH AMENDMENT

  RIGHTS.  JOHNSON V. UNITED STATES, 228 U.S. 457, 458; COUCH V.,

  UNITED STATES, 409 U.S. 322, 328.  P. 55. 

     4.  THE ACLU'S CLAIM THAT TITLE 1'S RECORDKEEPING REQUIREMENTS

  VIOLATE ITS MEMBERS' FIRST AMENDMENT RIGHTS SINCE THE CHALLENGED

  PROVISIONS COULD POSSIBLY BE USED TO IDENTIFY ITS MEMBERS AND

 CONTRIBUTORS (CF. NAACP V. ALABAMA, 357 U.S. 449), IS PREMATURE,

  THE GOVERNMENT HAVING SOUGHT NO SUCH DISCLOSURE HERE.  PP. 55 - 5

  PP. 55 - 57. 

     5.  THE REPORTING REQUIREMENTS IN TITLE II APPLICABLE TO

  FOREIGN FINANCIAL DEALINGS, WHICH SINGLE OUT TRANSACTIONS WITH

  THE GREATEST POTENTIAL FOR AVOIDING ENFORCEMENT OF FEDERAL LAWS

AND WHICH INVOLVE SUBSTANTIAL SUMS, DO NOT ABRIDGE PLAINTIFFS'

  FOURTH AMENDMENT RIGHTS AND ARE WELL WITHIN CONGRESS' POWERS TO

  LEGISLATE WITH RESPECT TO FOREIGN COMMERCE.  CARROLL V. UNITED

  STATES, 267 U.S. 132, 154; ALMEIDA-SANCHEZ V. UNITED STATES, 413

  U.S. 266, 272.  PP. 59 - 63. 

     6.  THE REGULATIONS FOR THE REPORTING BY FINANCIAL
INSTITUTIONS

  OF DOMESTIC FINANCIAL TRANSACTIONS ARE REASONABLE AND ABRIDGE NO

  FOURTH AMENDMENT RIGHTS OF SUCH INSTITUTIONS, WHICH ARE

  THEMSELVES PARTIES TO THE TRANSACTION INVOLVED, SINCE NEITHER

  "INCORPORATED NOR UNINCORPORATED ASSOCIATIONS (HAVE) AN

  UNQUALIFIED RIGHT TO CONDUCT THEIR AFFAIRS IN SECRET," UNITED

  STATES V. MORTON SALT CO., 338 U.S. 632, 652.  P. 63 - 67. 

     7.  THE DEPOSITOR PLAINTIFFS, WHO DO NOT ALLEGE ENGAGING IN
THE

  TYPE OF $10,000 DOMESTIC CURRENCY TRANSACTION REQUIRING

  REPORTING, LACK STANDING TO CHALLENGE THE DOMESTIC REPORTING

  REGULATIONS.  IT IS THEREFORE UNNECESSARY TO CONSIDER CONTENTIONS

 MADE BY THE BANK AND DEPOSITOR PLAINTIFFS THAT THE REGULATIONS

  ARE CONSTITUTIONALLY DEFECTIVE BECAUSE THEY DO NOT REQUIRE THE

  FINANCIAL INSTITUTION TO NOTIFY THE CUSTOMER THAT A REPORT WILL

  BE FILED CONCERNING THE DOMESTIC CURRENCY TRANSACTION.  PP. 67 -

  70. 

     8.  THE DEPOSITOR PLAINTIFFS WHO ARE PARTIES IN THIS
LITIGATION

  ARE PREMATURE IN CHALLENGING THE FOREIGN AND DOMESTIC REPORTING

PROVISIONS UNDER THE FIFTH AMENDMENT.  PP. 72 - 75. 

      (A) SINCE THOSE PLAINTIFFS MERELY ALLEGE THAT THEY INTEND TO

  ENGAGE IN FOREIGN CURRENCY TRANSACTIONS WITH FOREIGN BANKS AND

  MAKE NO ADDITIONAL ALLEGATION THAT ANY OF THE INFORMATION

  REQUIRED BY THE SECRETARY WILL TEND TO INCRIMINATE THEM, THEIR

  CHALLENGE TO THE FOREIGN REPORTING REQUIREMENTS CANNOT BE

  CONSIDERED AT THIS TIME.  COMMUNIST PARTY V. ASCB, 367 U.S. 1,

  105 - 110, FOLLOWED; ALBERTSON V. SACB U.S. 70, DISTINGUISHED. 

  PP. 72 - 74. 

     (B) THE DEPOSITOR PLAINTIFFS' CHALLENGE TO THE DOMESTIC

  REPORTING REQUIREMENTS ARE SIMILARLY PREMATURE, SINCE THERE IS NO

  ALLEGATION THAT ANY BANK REPORT WOULD CONTAIN INFORMATION

  INCRIMINATING ANY DEPOSITOR.  MARCHETTE V. UNITED STATES, 390

  U.S. 39; GROSSO V. UNITED STATES, 390 U.S. 62; AND HAYNES V.

  UNITED STATES, 390 U.S. 85, DISTINGUISHED.  P. 75. 

     9.  THE BANK PLAINTIFFS CANNOT VICARIOUSLY ASSERT FIFTH

  AMENDMENT CLAIMS ON BEHALF OF THEIR DEPOSITORS UNDER THE

  CIRCUMSTANCES PRESENT HERE, SINCE THE DEPOSITORS CANNOT ASSERT

  THOSE CLAIMS THEMSELVES AT THIS TIME.  SEE PAR. 8, SUPRA.  PP. 71

  - 72. 

10.  THE CONTENTIONS OF THE ACLU THAT THE REPORTING

  REQUIREMENTS WITH RESPECT TO FOREIGN AND DOMESTIC TRANSACTIONS

  INVADE ITS FIRST AMENDMENT ASSICAITIONAL INTERESTS ARE TOO

  SPECULATIVE AND HYPOTHETICAL TO WARRANT CONSIDERATION, IN VIEW OF

  THE FACT THAT THE ACLU ALLEGED ONLY THAT IT MAINTAINS ACCOUNTS AT

  A SAN FRANCISCO BANK BUT NOT THAT IT REGULARLY ENGAGES IN

  ABNORMALLY LARGE DOMESTIC CURRENCY TRANSACTIONS, TRANSPORTS OR

  RECEIVES MONETARY INSTRUMENTS FROM FOREIGN COMMERCIAL CHANNELS,

  OR MAINTAINS FOREIGN BANK ACCOUNTS.  PP. 75 - 76. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ.,

  JOINED.  POWELL, J., FILED A CONCURRING OPINION, IN WHICH

  BLACKMUN, J., JOINED, POST, P. 78.  DOUGLAS, J., FILED A

  DISSENTING OPINION IN PARTS I AND II-A OF WHICH BRENNAN, J.,

  JOINED, POST, P. 79.  BRENNAN, J., POST, P. 91, AND MARSHALL, J.,

  POST, P. 73, FILED DISSENTING OPINIONS. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS PRESENT QUIESTIONS CONCERNING THE CONSTITUTIONALITY OF
THE SO-CALLED BANK SECRECY ACT OF 1970, AND THE IMPLEMENTING
REGULATIONS PROMULGATED THEREUNDER BY THE SECRETARY OF THE TREASURY. 
THE ACT.  PUB.  L. 91 - 508.  84 STAT. 1114, 12 U.S.C. 1730D, 1829B,
1951 - 1959, AND 31 U.S.C. 1051 - 1062, 1081 - 1083, 1101 - 1105, 1121
1122, WAS ENACTED BY CONGRESS IN 1970 FOLLOWING EXTENSIVE HEARINGS
CONCERNING THE UNAVAILABILITY OF FOREIGN AND DOMESTIC BANK RECORDS OF
CUSTOMERS THOUGHT TO BE ENGAGED IN ACTIVITIES ENTAILING CRIMINAL OR
CIVIL LIABILITY.  UNDER THE ACT, THE SECRETARY OF THE TREASURY IS
AUTHORIZED TO PRESCRIBE BY REGULATION CERTAIN RECORDKEEPING AND
REPORTING REQUIREMENTS FOR BANKS AND OTHER FINANCIAL INSTITUTIONS IN
THIS COUNTRY.  BECAUSE IT HAS A BEARING ON OUR TREATMENT OF SOME OF THE
ISSUES RAISED BY THE PARTIES, WE THINK IT IMPORTANT TO NOTE THAT THE
ACT'S CIVIL AND CRIMINAL PENALTIES ATTACH ONLY UPON VIOLATION OF
REGULATIONS PROMULGATED BY THE SECRETARY; IF THE SECRETARY WERE TO DO
NOTHING, THE ACT ITSELF WOULD IMPOSE NO PENALTIES ON ANYONE. 

THE EXPRESS PURPOSE OF THE ACT IS TO REQUIRE THE MAINTENANCE OF
RECORDS, AND THE MAKING OF CERTAIN REPORTS, WHICH " HAVE A HIGH DEGREE
OF USEFULNESS IN CRIMINAL, TAX, OR REGULATORY INVESTIGATIONS OR
PROCEEDINGS."  12 U.S.C. 1829B (A)(2), 1951; 31 U.S.C. 1051.  CONGRESS
WAS APPARENTLY CONCERNED WITH TWO MAJOR PROBLEMS IN CONNECTION WITH THE
ENFORCEMENT OF THE REGULATORY, TAX, AND CRIMINAL LAWS OF THE UNITED
STATES.  /1/ 

FIRST, THERE WAS A NEED TO INSURE THAT DOMESTIC BANKS AND FINANCIAL
INSTITUTIONS CONTINUED TO MAINTAIN ADEQUATE RECORDS OF THEIR FINANCIAL
TRANSACTIONS WITH THEIR CUSTOMERS.  CONGRESS FOUND THAT THE RECENT
GROWTH OF FINANCIAL INSTITUTIONS IN THE UNITED STATES HAD BEEN
PARALLELED BY AN INCREASE IN CRIMINAL ACTIVITY WHICH MADE USE OF THESE
INSTITUTIONS.  WHILE MANY OF THE RECORDS WHICH THE SECRETARY BY
REGULATION ULTIMATELY REQUIRED TO BE KEPT HAD BEEN TRADITIONALLY
MAINTAINED BY THE VOLUNTARY ACTION OF MANY DOMESTIC FINANCIAL
INSTITUTIONS, CONGRESS NOTED THAT IN RECENT YEARS SOME LARGER BANKS HAD
ABOLISHED OR LIMITED THE PRACTICE OF PHOTOCOPYING CHECKS, DRAFTS, AND
SIMILAR INSTRUMENTS DRAWN ON THEM AND PRESENTED FOR PAYMENT.  THE
ABSENCE OF SUCH RECORDS, WHETHER THROUGH FAILURE TO MAKE THEM IN THE
FIRST INSTANCE OR THROUGH FAILURE TO RETAIN THEM, WAS THOUGHT TO
SERIOUSLY IMPAIR THE ABILITY OF THE FEDERAL GOVERNMENT TO ENFORCE THE
MYRIAD CRIMINAL, TAX, AND REGULATORY PROVISIONS OF LAWS WHICH CONGRESS
HAD ENACTED.  AT THE SAME TIME, IT WAS RECOGNIZED BY CONGRESS THAT SUCH
REQUIRED RECORDS WOULD "NOT BE MADE AUTOMATICALLY AVAILABLE FOR LAW
ENFORCEMENT PURPOSES (BUT COULD) ONLY BE OBTAINED THROUGH EXISTING
LEGAL PROCESS."  H.R. REP. 91 - 975, P. 10 (1970); SEE S. REP. NO. 91 -
1139, P. 5 (1970). 

IN ADDITION, CONGRESS FELT THAT THERE WERE SITUATIONS WHERE THE
DEPOSIT AND WITHDRAWAL OF LARGE AMOUNTS OF CURRENCY OR OF MONETARY
INSTRUMENTS WHICH WERE THE EQUIVALENT OF CURRENCY SHOULD BE ACTUALLY
REPORTED TO THE GOVERNMENT.  WHILE REPORTS OF THIS NATURE HAD BEEN
REQUIRED BY PREVIOUS REGULATIONS ISSUED BY THE TREASURY DEPARTMENT, IT
WAS FELT THAT MORE PRECISE AND DETAILED REPORTING REQUIREMENTS WERE
NEEDED.  THE SECRETARY WAS THEREFORE AUTHORIZED TO REQUIRE THE
REPORTING OF WHAT MAY BE DESCRIBED AS LARGE DOMESTIC FINANCIAL
TRANSACTIONS IN CURRENCY OR ITS EQUIVALENT. 

SECOND, CONGRESS WAS CONCERNED ABOUT A SERIOUS AND WIDESPREAD USE OF
FOREIGN FINANCIAL INSTITUTIONS, LOCATED IN JURISDICTIONS WITH STRICT
LAWS OF SECRECY AS TO BANK ACTIVITY, FOR THE PURPOSE OF VIOLATING OR
EVADING DOMESTIC CRIMINAL, TAX, AND REGULATORY ENACTMENTS.  THE HOUSE
REPORT ON THE BILL, NO. 91 - 975, SUPRA, AT 12 - 13, DESCRIBED THE
SITUATION IN THESE WORDS: 

     "CONSIDERABLE TESTIMONY WAS RECEIVED BY THE COMMITTEE FROM THE

  JUSTICE DEPARTMENT, THE UNITED STATES ATTORNEY FOR THE SOUTHERN

  DISTRICT OF NEW YORK, THE TREASURY DEPARTMENT, THE INTERNAL

  REVENUE SERVICE, THE SECURITITES AND EXCHANGE COMMISSION, THE

  DEFENSE DEPARTMENT AND THE AGENCY FOR INTERNATIONAL DEVELOPMENT

  ABOUT SERIOUS AND WIDE-SPREAD USE OF FOREIGN FINANCIAL FACILITIES

  LOCATED IN SECRECY JURISDICTIONS FOR THE PURPOSE OF VIOLATING

 AMERICAN LAW.  SECRET FOREIGN BANK ACCOUNTS AND SECRET FOREIGN

  FINANCIAL INSTITUTIONS HAVE PERMITTED PROLIFERATION OF 'WHITE

  COLLAR' CRIME; HAVE SERVED AS THE FINANCIAL UNDERPINNING OF

  ORGANIZED CRIMINAL OPERATIONS IN THE UNITED STATES; HAVE BEEN

  UTILIZED BY AMERICANS TO EVADE INCOME TAXES, CONCEAL ASSETS

  ILLEGALLY AND PURCHASE GOLD; HAVE ALLOWED AMERICANS AND OTHERS TO

  AVOID THE LAW AND REGULATIONS GOVERNING SECURITIES AND EXCHANGES;

  HAVE SERVED AS ESSENTAIL INGREDIENTS IN FRAUDS INCLUDING SCHEMES

  TO DEFRAUD THE UNITED STATES; HAVE SERVED AS THE ULTIMATE

  DEPOSITORY OF BLACK MARKET PROCEEDS FROM VIETNAM; HAVE SERVED AS

  A SOURCE OF QUESTIONABLE FINANCING FOR CONGLOMERATE AND OTHER

  CORPORATE STOCK ACQUISITIONS, MERGERS AND TAKEOVERS; HAVE COVERED

  CONSPIRACIES TO STEAL FROM THE U.S. DEFENSE AND FOREIGN AID

  FUNDS; AND HAVE SERVED AS THE CLEANSING AGENT FOR 'HOT' OR

  ILLEGALLY OBTAINED MONIES. 

   .  .  .  .  . 

     "THE DEBILTATING EFFECTS OF THE USE OF THESE SECRET

  INSTITUTIONS ON AMERICANS AND THE AMERICAN ECONOMY ARE VASE.  IT

  HAS BEEN ESTIMATED THAT HUNDREDS OF MILLIONS IN TAX REVENUES HAVE

  BEEN LOST.  UNWARRANTED AND UNWANTED CREDIT IS BEING PUMPED INTO

  OUR MARKETS.  THERE HAVE BEEN SOME CASES OF CORPORATION

  DIRECTORS, OFFICERS AND EMPLOYEES WHO, THROUGH DECEIT AND

  VIOLATION OF LAW, ENRICHED THEMSELVES OR ENDANGERED THE FNANCIAL

SOUNDNESS OF THEIR COMPANIES TO THE DITRIMENT OF THEIR

STOCKHOLDERS.  CRIMINALS ENGAGED IN ILLEGAL GAMBLING, SKIMMING,

  AND NARCOTICS TRAFFIC ARE OPERATING THEIR FINANCIAL AFFAIRS WITH

  AN IMPUNITY THAT APPROACHES STATUTORY EXEMPTION. 

     "WHEN LAW ENFORCEMENT PERSONNEL ARE CONFRONTED WITH THE SECRET

  FOREIGN BANK ACCOUNT OR THE SECRET FINANCIAL INSTITUTION THEY ARE

  PLACED IN AN IMPOSSIBLE POSITION.  IN ORDER TO RECEIVE EVIDENCE

  AND TESTIMONY REGARDING ACTIVITIES IN THE SECRECY JURISDICTION

  THEY MUST SUBJECT THEMSELVES TO A TIME CONSUMING AND OFTTIMES

  FRUITLESS FOREIGN LEGAL PROCESS.  EVEN WHEN PROCEDURAL OBSTACLES

ARE OVERCOME, THE FOREIGN JURISDICTIONS RIGIDLY ENFORCE THEIR

  SECRECY LAWS AGAINST THEIR OWN DOMESTIC INSTITUTIONS AND

  EMPLOYEES. 

     "ONE OF THE MOST DAMAGING EFFECTS OF AN AMERICAN'S USE OF

  SECRET FOREIGN FINANCIAL FACILITIES IS ITS UNDERMINING OF THE

  FAIRNESS OF OUR TAX LAWS.  SECRET FOREIGN FINANCIAL FACILITIES,

  PARTICULARLY IN SWITZERLAND, ARE AVAILABLE ONLY TO THE WEALTHY. 

  TO OPEN A SECRET SWISS ACCOUNT NORMALLY REQUIRES A SUBSTANTIAL

  DEPOSIT, BUT SUCH AN ACCOUNT OFFERS A CONVENIENT MEANS OF EVADING

  U.S.S TAXES.  IN THESE DAYS WHEN THE CITIZENS OF THIS COUNTRY ARE

  CRYING OUT FOR TAX REFORM AND RELIEF, IT IS GROSSLY UNFAIR TO

  LEAVE THE SECRET FOREIGN BANK ACCOUNT OPEN AS A CONVENIENT AVENUE

  OF TAX EVASION.  THE FORMER U.S.S ATTORNEY FOR THE SOUTHERN

  DISTRICT OF NEW YORK HAS CHARACTERIZED THE SECRET FOREIGN BANK

  ACCOUNT AS THE LARGEST SINGLE TAX LOOPHOLE PERMITTED BY AMERICAN

  LAW." 

WHILE MOST OF THE RECORDKEEPING REQUIREMENTS IMPOSED BY THE SECRETARY
UNDER THE ACT MERELY REQUIRE THE BANKS TO KEEP RECORDS WHICH MOST OF
THEM HAD IN THE PAST VOLUNTARILY KEPT AND RETAINED, AND WHILE MUCH OF
THE REQUIRED REPORTING OF DOMESTIC TRANSACTIONS HAD BEEN REQUIRED BY
EARLIER TREASURY REGULATIONS IN EFFECT FOR NEARLY 30 YEARS, /2/  THERE
IS NO DENYING THE IMPRESSIVE SWEEP OF THE AUTHORITY CONFERRED UPON THE
SECRETARY OF THE TREASURY BY THE BANK SECRECY ACT OF 1970.  WHILE AN
ACT CONFERRING SUCH BROAD AUTHORITY OVER TRANSACTIONS SUCH AS THESE
MIGHT WELL SURPRISE OR EVEN SHOCK THOSE WHO LIVED IN AN EARLIER ERA,
THE LATTER DID NOT LIVE TO SEE THE TIME WHEN BANK ACCOUNTS WOULD JOIN
CHOCOLATE, CHEESE, AND WATCHES AS A SYMBOL OF THE SWISS ECONOMY.  NOR
DID THEY LIVE TO SEE THE HEAVY UTILIZATION OF OUR DOMESTIC BANKING
SYSTEM BY THE MINIONS OF ORGANIZED CRIME AS WELL AS BY MILLIONS OF
LEGITIMATE BUSINESSMEN.  THE CHALLENGES MADE HERE TO THE BANK SECRECY
ACT ARE DIRECTED NOT TO ANY WANT OF LEGISLATIVE AUTHORITY IN CONGRESS
TO TREAT THE SUBJECT, BUT INSTEAD TO THE ACT'S ASSERTED VIOLATION OF
SPECIFIC CONSTITUTIONAL PROHIBITIONS. 

        I 

TITLE I OF THE ACT, AND THE IMPLEMENTING REGULATIONS PROMULGATED
THEREUNDER BY THE SECRETARY OF THE TREASURY, REQUIRE FINANCIAL
INSTITUTIONS TO MAINTAIN RECORDS OF THE IDENTITIES OF THEIR CUSTOMERS,
TO MAKE MICROFILM COPIES OF CERTAIN CHECKS DRAWN ON THEM, AND TO KEEP
RECORDS OF CERTAIN OTHER ITEMS.  TITLE II OF THE ACT AND ITS
IMPLEMENTING REGULATIONS REQUIRE REPORTS OF CERTAIN DOMESTIC AND
FOREIGN CURRENCY TRANSACTIONS. 

A. TITLE I--THE RECORDKEEPING REQUIREMENTS 

TITLE I OF THE BANK SECRECY ACT CONTAINS THE GENERAL RECORDKEEPING
REQUIREMNTS FOR BANKS AND OTHER FINANCIAL INSTITUTIONS, AS PROVIDED BY
THE SECRETARY BY REGULATION.  SECTION 101 OF THE ACT, 12 U.S.C. 1829B,
APPLIES BY ITS TERMS ONLY TO FEDERALLY INSURED BANKS.  IT CONTAINS
CONGRESSIONAL FINDINGS "THAT ADEQUATE RECORDS MAINTAINED BY INSURED
BANKS HAVE A HIGH DEGREE OF USEFULNESS IN CRIMINAL, TAX, AND REGULATORY
INVESTIGATIONS AND PROCEEDINGS."  THE MAJOR REQUIREMENTS OF THE SECTION
ARE THAT INSURED BANKS RECORD THE IDENTITIES OF PERSONS HAVING ACCOUNTS
WITH THEM AND OF PERSONS HAVING SIGNATURE AUTHORITY THEREOVER, IN SUCH
FORM AS THE SECRETARY MAY REQUIRE.  TO THE EXTENT THAT THE SECRETARY
DETERMINES BY REGULATION THAT SUCH RECORDS WOULD HAVE THE REQUISITE
"HIGH DEGREE OF USEFULNESS," THE BANKS MUST MAKE AND MAINTAIN MICROFILM
OR OTHER REPORODUCTIONS OF EACH CHECK, DRAFT, OR OTHER INSTRUMENT DRAWN
ON IT AND PRESENTED TO IT FOR PAYMENT, AND MUST MAINTAIN A RECORD OF
EACH CHECK, DRAFT, OR OTHER INSTRUMENT RECEIVED BY IT FOR DEPOSIT OR
COLLECTION, TOGETHER WITH AN IDENTIFICATION OF THE PARTY FOR WHOSE
ACCOUNT IT IS TO BE DEPOSITED OR COLLECTED.  SECTION 101 FURTHER
AUTHORIZES THE SECRETARY TO REQUIRE INSURED BANKS TO MAINTAIN A RECORD
OF THE IDENTITY OF ALL INDIVIDUALS WHO ENGAGE IN TRANSACTION WHICH ARE
REPORTABLE BY THE BANK UNDER TITLE II OF THE ACT, AND AUTHORIZES THE
SECRETARY TO PRESCRIBE THE REQUIRED RETENTION PERIOD FOR SUCH RECORDS. 
AUTHORIZE THE SECRETARY TO APPLY SIMILAR RECORDKEEPING REQUIREMENTS TO
INSTITUTIONS INSURED THEREUNDER.  SECTIONS 122 123 OF THE ACT, 12
U.S.C. 1952 - 1953, AUTHORIZE THE SECRETARY TO ISSUE REGULATIONS
APPLYING SIMILAR RECORDKEEPING REQUIREMENTS TO ADDITIONAL DOMESTIC
FINANCIAL INSTITUTIONS.  /3/ 

ALTHOUGH AN INITIAL DRAFT OF TITLE I, SEE H.R. 15073, 91ST CONG.,
1ST SESS., WOULD HAVE COMPELLED THE SECRETARY OF THE TREASURY TO
PROMULGATE REGULATIONS REQUIRING BANKS TO MAINTAIN COPIES OF ALL ITEMS
RECEIVED FOR COLLECTION OR PRESENTED FOR PAYMENT, THE ACT AS FINALLY
PASSED REQUIRED THE MAINTENANCE ONLY OF SUCH RECORDS AND MICROFILM
COPIES AS THE SECRETARY DETERMINED TO HAVE A "HIGH DEGREE OF
USEFULNESS."  /4/  UPON PASSAGE OF THE ACT, THE TREASURY DEPARTMENT
ESTABLISHED A TASK FORCE WHICH CONSULTED WITH REPRESENTATIVES FROM
FINANCIAL INSTITUTIONS, TRADE ASSOCIATIONS, AND GOVERNMENTAL AGENCIES
TO DETERMINE THE TYPE OF RECORDS WHICH SHOULD BE MAINTAINED.  WHEREAS
THE ORIGINAL REGULATIONS PROMULGATED BY THE SECRETARY OF TREASURY HAD
REQUIRED THE COPYING OF ALL CHECKS, THE TASK FORCE DECIDED, AND THE
REGULATIONS WERE ACCORDINGLY AMENDED, TO REQUIRE CHECK COPYING ONLY AS
TO CHECKS IN EXCESS OF $100.  /5/  THE REGULATIONS ALSO REQUIRE THE
COPYING OF ONLY "ON US" CHECKS: CHECKS DRAWN ON THE BANK OR ISSUED AND
PAYABLE BY IT.  31 CFR 103.34 (B)(3).  THE REGULATIONS EXEMPT FROM THE
COPYING REQUIREMENTS CERTAIN "ON US" CHECKS SUCH AS DIVIDEND, PAYROLL,
AND EMPLOYEE BENEFIT CHECKS, PROVIDED THEY ARE DRAWN ON AN ACCOUNT
EXPECTED TO AVERAGE AT LEAST ONE HUNDRED CHECKS PER MONTH.  /6/  THE
REGULATIONS ALSO REQUIRE BANKS TO MAINTAIN RECORDS OF THE IDENTITY AND
TAXPAYER IDENTIFICATION NUMBER OF EACH PERSON MAINTAINING A FINANCIAL
INTEREST IN EACH DEPOSIT OR SHARE ACCOUNT OPENED AFTER JUNE 30, 1972,
AND TO MICROFILM VARIOUS OTHER FINANCIAL DOCUMENTS.  31 CFR 103.34. 
/7/  IN ADDITION, THE SECRETARY'S REGULATIONS REQUIRE ALL FINANCIAL
INSTITUTIONS TO MAINTAIN A MICROFILM OR OTHER COPY OF EACH EXTENSION OF
CREDIT IN AN AMOUNT EXCEEDING $5,000 EXCEPT THOSE SECURED BY INTEREST
IN REAL PROPERTY, AND TO MICROFILM EACH ADVICE, REQUEST, OR INSTRUCTION
GIVEN OR RECEIVED REGARDING THE TRANSFER OF FUNDS, CURRENCY, OR OTHER
MONEY OR CREDIT IN AMOUNTS EXCEEDING $10,000 TO A PERSON, ACCOUNT, OR
PLACE OUTSIDE THE UNITED STATES.  31 CFR 103.33. 

REITERATING THE STATED INTENT OF THE CONGRESS, SEE, E.G., H.R. REP.
NO. 91 - 975, SUPRA, AT 10; S. REP. NO. 91 - 1139, SUPRA, AT 5, THE
REGULATIONS PROVIDE THAT INSPECTION, REVIEW, OR ACCESS TO THE RECORDS
REQUIRED BY THE ACT TO BE MAINTAINED IS GOVERNED BY EXISTING LEGAL
PROCESS.  31 CFR 103.51.  /8/  FINALLY, 125 - 127 OF THE ACT PROVIDE
FOR CIVIL AND CRIMINAL PENALTIES FOR WILLFUL VIOLATIONS OF THE
RECORDKEEPING REQUIREMENTS.  12 U.S.C. 1955 - 1957. 

    (A) SINCE THOSE PLAINTIFFS MERELY ALLEGE THAT THEY INTEND TO

  ENGAGE IN FOREIGN CURRENCY TRANSACTIONS WITH FOREIGN BANKS AND

  MAKE NO ADDITIONAL ALLEGATION THAT ANY OF THE INFORMATION

  REQUIRED BY THE SECRETARY WILL TEND TO INCRIMINATE THEM, THEIR

  CHALLENGE TO THE FOREIGN REPORTING REQUIREMENTS CANNOT BE

  CONSIDERED AT THIS TIME.  COMMUNIST PARTY V. ASCB, 367 U.S. 1,

  105 - 110, FOLLOWED; ALBERTSON V. SACB U.S. 70, DISTINGUISHED. 

  PP. 72 - 74. 

     (B) THE DEPOSITOR PLAINTIFFS' CHALLENGE TO THE DOMESTIC

  REPORTING REQUIREMENTS ARE SIMILARLY PREMATURE, SINCE THERE IS NO

  ALLEGATION THAT ANY BANK REPORT WOULD CONTAIN INFORMATION

  INCRIMINATING ANY DEPOSITOR.  MARCHETTE V. UNITED STATES, 390

  U.S. 39; GROSSO V. UNITED STATES, 390 U.S. 62; AND HAYNES V.

  UNITED STATES, 390 U.S. 85, DISTINGUISHED.  P. 75. 

     9.  THE BANK PLAINTIFFS CANNOT VICARIOUSLY ASSERT FIFTH

  AMENDMENT CLAIMS ON BEHALF OF THEIR DEPOSITORS UNDER THE

  CIRCUMSTANCES PRESENT HERE, SINCE THE DEPOSITORS CANNOT ASSERT

  THOSE CLAIMS THEMSELVES AT THIS TIME.  SEE PAR. 8, SUPRA.  PP. 71

  - 72. 

10.  THE CONTENTIONS OF THE ACLU THAT THE REPORTING

  REQUIREMENTS WITH RESPECT TO FOREIGN AND DOMESTIC TRANSACTIONS

  INVADE ITS FIRST AMENDMENT ASSICAITIONAL INTERESTS ARE TOO

  SPECULATIVE AND HYPOTHETICAL TO WARRANT CONSIDERATION, IN VIEW OF

  THE FACT THAT THE ACLU ALLEGED ONLY THAT IT MAINTAINS ACCOUNTS AT

  A SAN FRANCISCO BANK BUT NOT THAT IT REGULARLY ENGAGES IN

  ABNORMALLY LARGE DOMESTIC CURRENCY TRANSACTIONS, TRANSPORTS OR

  RECEIVES MONETARY INSTRUMENTS FROM FOREIGN COMMERCIAL CHANNELS,

  OR MAINTAINS FOREIGN BANK ACCOUNTS.  PP. 75 - 76. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ.,

  JOINED.  POWELL, J., FILED A CONCURRING OPINION, IN WHICH

  BLACKMUN, J., JOINED, POST, P. 78.  DOUGLAS, J., FILED A

  DISSENTING OPINION IN PARTS I AND II-A OF WHICH BRENNAN, J.,

  JOINED, POST, P. 79.  BRENNAN, J., POST, P. 91, AND MARSHALL, J.,

  POST, P. 73, FILED DISSENTING OPINIONS. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS PRESENT QUIESTIONS CONCERNING THE CONSTITUTIONALITY OF
THE SO-CALLED BANK SECRECY ACT OF 1970, AND THE IMPLEMENTING
REGULATIONS PROMULGATED THEREUNDER BY THE SECRETARY OF THE TREASURY. 
THE ACT.  PUB.  L. 91 - 508.  84 STAT. 1114, 12 U.S.C. 1730D, 1829B,
1951 - 1959, AND 31 U.S.C. 1051 - 1062, 1081 - 1083, 1101 - 1105, 1121
1122, WAS ENACTED BY CONGRESS IN 1970 FOLLOWING EXTENSIVE HEARINGS
CONCERNING THE UNAVAILABILITY OF FOREIGN AND DOMESTIC BANK RECORDS OF
CUSTOMERS THOUGHT TO BE ENGAGED IN ACTIVITIES ENTAILING CRIMINAL OR
CIVIL LIABILITY.  UNDER THE ACT, THE SECRETARY OF THE TREASURY IS
AUTHORIZED TO PRESCRIBE BY REGULATION CERTAIN RECORDKEEPING AND
REPORTING REQUIREMENTS FOR BANKS AND OTHER FINANCIAL INSTITUTIONS IN
THIS COUNTRY.  BECAUSE IT HAS A BEARING ON OUR TREATMENT OF SOME OF THE
ISSUES RAISED BY THE PARTIES, WE THINK IT IMPORTANT TO NOTE THAT THE
ACT'S CIVIL AND CRIMINAL PENALTIES ATTACH ONLY UPON VIOLATION OF
REGULATIONS PROMULGATED BY THE SECRETARY; IF THE SECRETARY WERE TO DO
NOTHING, THE ACT ITSELF WOULD IMPOSE NO PENALTIES ON ANYONE. 

THE EXPRESS PURPOSE OF THE ACT IS TO REQUIRE THE MAINTENANCE OF
RECORDS, AND THE MAKING OF CERTAIN REPORTS, WHICH " HAVE A HIGH DEGREE
OF USEFULNESS IN CRIMINAL, TAX, OR REGULATORY INVESTIGATIONS OR
PROCEEDINGS."  12 U.S.C. 1829B (A)(2), 1951; 31 U.S.C. 1051.  CONGRESS
WAS APPARENTLY CONCERNED WITH TWO MAJOR PROBLEMS IN CONNECTION WITH THE
ENFORCEMENT OF THE REGULATORY, TAX, AND CRIMINAL LAWS OF THE UNITED
STATES.  /1/ 

FIRST, THERE WAS A NEED TO INSURE THAT DOMESTIC BANKS AND FINANCIAL
INSTITUTIONS CONTINUED TO MAINTAIN ADEQUATE RECORDS OF THEIR FINANCIAL
TRANSACTIONS WITH THEIR CUSTOMERS.  CONGRESS FOUND THAT THE RECENT
GROWTH OF FINANCIAL INSTITUTIONS IN THE UNITED STATES HAD BEEN
PARALLELED BY AN INCREASE IN CRIMINAL ACTIVITY WHICH MADE USE OF THESE
INSTITUTIONS.  WHILE MANY OF THE RECORDS WHICH THE SECRETARY BY
REGULATION ULTIMATELY REQUIRED TO BE KEPT HAD BEEN TRADITIONALLY
MAINTAINED BY THE VOLUNTARY ACTION OF MANY DOMESTIC FINANCIAL
INSTITUTIONS, CONGRESS NOTED THAT IN RECENT YEARS SOME LARGER BANKS HAD
ABOLISHED OR LIMITED THE PRACTICE OF PHOTOCOPYING CHECKS, DRAFTS, AND
SIMILAR INSTRUMENTS DRAWN ON THEM AND PRESENTED FOR PAYMENT.  THE
ABSENCE OF SUCH RECORDS, WHETHER THROUGH FAILURE TO MAKE THEM IN THE
FIRST INSTANCE OR THROUGH FAILURE TO RETAIN THEM, WAS THOUGHT TO
SERIOUSLY IMPAIR THE ABILITY OF THE FEDERAL GOVERNMENT TO ENFORCE THE
MYRIAD CRIMINAL, TAX, AND REGULATORY PROVISIONS OF LAWS WHICH CONGRESS
HAD ENACTED.  AT THE SAME TIME, IT WAS RECOGNIZED BY CONGRESS THAT SUCH
REQUIRED RECORDS WOULD "NOT BE MADE AUTOMATICALLY AVAILABLE FOR LAW
ENFORCEMENT PURPOSES (BUT COULD) ONLY BE OBTAINED THROUGH EXISTING
LEGAL PROCESS."  H.R. REP. 91 - 975, P. 10 (1970); SEE S. REP. NO. 91 -
1139, P. 5 (1970). 

IN ADDITION, CONGRESS FELT THAT THERE WERE SITUATIONS WHERE THE
DEPOSIT AND WITHDRAWAL OF LARGE AMOUNTS OF CURRENCY OR OF MONETARY
INSTRUMENTS WHICH WERE THE EQUIVALENT OF CURRENCY SHOULD BE ACTUALLY
REPORTED TO THE GOVERNMENT.  WHILE REPORTS OF THIS NATURE HAD BEEN
REQUIRED BY PREVIOUS REGULATIONS ISSUED BY THE TREASURY DEPARTMENT, IT
WAS FELT THAT MORE PRECISE AND DETAILED REPORTING REQUIREMENTS WERE
NEEDED.  THE SECRETARY WAS THEREFORE AUTHORIZED TO REQUIRE THE
REPORTING OF WHAT MAY BE DESCRIBED AS LARGE DOMESTIC FINANCIAL
TRANSACTIONS IN CURRENCY OR ITS EQUIVALENT. 

SECOND, CONGRESS WAS CONCERNED ABOUT A SERIOUS AND WIDESPREAD USE OF
FOREIGN FINANCIAL INSTITUTIONS, LOCATED IN JURISDICTIONS WITH STRICT
LAWS OF SECRECY AS TO BANK ACTIVITY, FOR THE PURPOSE OF VIOLATING OR
EVADING DOMESTIC CRIMINAL, TAX, AND REGULATORY ENACTMENTS.  THE HOUSE
REPORT ON THE BILL, NO. 91 - 975, SUPRA, AT 12 - 13, DESCRIBED THE
SITUATION IN THESE WORDS: 

     "CONSIDERABLE TESTIMONY WAS RECEIVED BY THE COMMITTEE FROM THE

  JUSTICE DEPARTMENT, THE UNITED STATES ATTORNEY FOR THE SOUTHERN

  DISTRICT OF NEW YORK, THE TREASURY DEPARTMENT, THE INTERNAL

  REVENUE SERVICE, THE SECURITITES AND EXCHANGE COMMISSION, THE

  DEFENSE DEPARTMENT AND THE AGENCY FOR INTERNATIONAL DEVELOPMENT

  ABOUT SERIOUS AND WIDE-SPREAD USE OF FOREIGN FINANCIAL FACILITIES

  LOCATED IN SECRECY JURISDICTIONS FOR THE PURPOSE OF VIOLATING

 AMERICAN LAW.  SECRET FOREIGN BANK ACCOUNTS AND SECRET FOREIGN

  FINANCIAL INSTITUTIONS HAVE PERMITTED PROLIFERATION OF 'WHITE

  COLLAR' CRIME; HAVE SERVED AS THE FINANCIAL UNDERPINNING OF

  ORGANIZED CRIMINAL OPERATIONS IN THE UNITED STATES; HAVE BEEN

  UTILIZED BY AMERICANS TO EVADE INCOME TAXES, CONCEAL ASSETS

  ILLEGALLY AND PURCHASE GOLD; HAVE ALLOWED AMERICANS AND OTHERS TO

  AVOID THE LAW AND REGULATIONS GOVERNING SECURITIES AND EXCHANGES;

  HAVE SERVED AS ESSENTAIL INGREDIENTS IN FRAUDS INCLUDING SCHEMES

  TO DEFRAUD THE UNITED STATES; HAVE SERVED AS THE ULTIMATE

  DEPOSITORY OF BLACK MARKET PROCEEDS FROM VIETNAM; HAVE SERVED AS

  A SOURCE OF QUESTIONABLE FINANCING FOR CONGLOMERATE AND OTHER

  CORPORATE STOCK ACQUISITIONS, MERGERS AND TAKEOVERS; HAVE COVERED

  CONSPIRACIES TO STEAL FROM THE U.S. DEFENSE AND FOREIGN AID

  FUNDS; AND HAVE SERVED AS THE CLEANSING AGENT FOR 'HOT' OR

  ILLEGALLY OBTAINED MONIES. 

   .  .  .  .  . 

     "THE DEBILTATING EFFECTS OF THE USE OF THESE SECRET

  INSTITUTIONS ON AMERICANS AND THE AMERICAN ECONOMY ARE VASE.  IT

  HAS BEEN ESTIMATED THAT HUNDREDS OF MILLIONS IN TAX REVENUES HAVE

  BEEN LOST.  UNWARRANTED AND UNWANTED CREDIT IS BEING PUMPED INTO

  OUR MARKETS.  THERE HAVE BEEN SOME CASES OF CORPORATION

  DIRECTORS, OFFICERS AND EMPLOYEES WHO, THROUGH DECEIT AND

  VIOLATION OF LAW, ENRICHED THEMSELVES OR ENDANGERED THE FNANCIAL

SOUNDNESS OF THEIR COMPANIES TO THE DITRIMENT OF THEIR

STOCKHOLDERS.  CRIMINALS ENGAGED IN ILLEGAL GAMBLING, SKIMMING,

  AND NARCOTICS TRAFFIC ARE OPERATING THEIR FINANCIAL AFFAIRS WITH

  AN IMPUNITY THAT APPROACHES STATUTORY EXEMPTION. 

     "WHEN LAW ENFORCEMENT PERSONNEL ARE CONFRONTED WITH THE SECRET

  FOREIGN BANK ACCOUNT OR THE SECRET FINANCIAL INSTITUTION THEY ARE

  PLACED IN AN IMPOSSIBLE POSITION.  IN ORDER TO RECEIVE EVIDENCE

  AND TESTIMONY REGARDING ACTIVITIES IN THE SECRECY JURISDICTION

  THEY MUST SUBJECT THEMSELVES TO A TIME CONSUMING AND OFTTIMES

  FRUITLESS FOREIGN LEGAL PROCESS.  EVEN WHEN PROCEDURAL OBSTACLES

ARE OVERCOME, THE FOREIGN JURISDICTIONS RIGIDLY ENFORCE THEIR

  SECRECY LAWS AGAINST THEIR OWN DOMESTIC INSTITUTIONS AND

  EMPLOYEES. 

     "ONE OF THE MOST DAMAGING EFFECTS OF AN AMERICAN'S USE OF

  SECRET FOREIGN FINANCIAL FACILITIES IS ITS UNDERMINING OF THE

  FAIRNESS OF OUR TAX LAWS.  SECRET FOREIGN FINANCIAL FACILITIES,

  PARTICULARLY IN SWITZERLAND, ARE AVAILABLE ONLY TO THE WEALTHY. 

  TO OPEN A SECRET SWISS ACCOUNT NORMALLY REQUIRES A SUBSTANTIAL

  DEPOSIT, BUT SUCH AN ACCOUNT OFFERS A CONVENIENT MEANS OF EVADING

  U.S.S TAXES.  IN THESE DAYS WHEN THE CITIZENS OF THIS COUNTRY ARE

  CRYING OUT FOR TAX REFORM AND RELIEF, IT IS GROSSLY UNFAIR TO

  LEAVE THE SECRET FOREIGN BANK ACCOUNT OPEN AS A CONVENIENT AVENUE

  OF TAX EVASION.  THE FORMER U.S.S ATTORNEY FOR THE SOUTHERN

  DISTRICT OF NEW YORK HAS CHARACTERIZED THE SECRET FOREIGN BANK

  ACCOUNT AS THE LARGEST SINGLE TAX LOOPHOLE PERMITTED BY AMERICAN

  LAW." 

WHILE MOST OF THE RECORDKEEPING REQUIREMENTS IMPOSED BY THE SECRETARY
UNDER THE ACT MERELY REQUIRE THE BANKS TO KEEP RECORDS WHICH MOST OF
THEM HAD IN THE PAST VOLUNTARILY KEPT AND RETAINED, AND WHILE MUCH OF
THE REQUIRED REPORTING OF DOMESTIC TRANSACTIONS HAD BEEN REQUIRED BY
EARLIER TREASURY REGULATIONS IN EFFECT FOR NEARLY 30 YEARS, /2/  THERE
IS NO DENYING THE IMPRESSIVE SWEEP OF THE AUTHORITY CONFERRED UPON THE
SECRETARY OF THE TREASURY BY THE BANK SECRECY ACT OF 1970.  WHILE AN
ACT CONFERRING SUCH BROAD AUTHORITY OVER TRANSACTIONS SUCH AS THESE
MIGHT WELL SURPRISE OR EVEN SHOCK THOSE WHO LIVED IN AN EARLIER ERA,
THE LATTER DID NOT LIVE TO SEE THE TIME WHEN BANK ACCOUNTS WOULD JOIN
CHOCOLATE, CHEESE, AND WATCHES AS A SYMBOL OF THE SWISS ECONOMY.  NOR
DID THEY LIVE TO SEE THE HEAVY UTILIZATION OF OUR DOMESTIC BANKING
SYSTEM BY THE MINIONS OF ORGANIZED CRIME AS WELL AS BY MILLIONS OF
LEGITIMATE BUSINESSMEN.  THE CHALLENGES MADE HERE TO THE BANK SECRECY
ACT ARE DIRECTED NOT TO ANY WANT OF LEGISLATIVE AUTHORITY IN CONGRESS
TO TREAT THE SUBJECT, BUT INSTEAD TO THE ACT'S ASSERTED VIOLATION OF
SPECIFIC CONSTITUTIONAL PROHIBITIONS. 

        I 

TITLE I OF THE ACT, AND THE IMPLEMENTING REGULATIONS PROMULGATED
THEREUNDER BY THE SECRETARY OF THE TREASURY, REQUIRE FINANCIAL
INSTITUTIONS TO MAINTAIN RECORDS OF THE IDENTITIES OF THEIR CUSTOMERS,
TO MAKE MICROFILM COPIES OF CERTAIN CHECKS DRAWN ON THEM, AND TO KEEP
RECORDS OF CERTAIN OTHER ITEMS.  TITLE II OF THE ACT AND ITS
IMPLEMENTING REGULATIONS REQUIRE REPORTS OF CERTAIN DOMESTIC AND
FOREIGN CURRENCY TRANSACTIONS. 

A. TITLE I--THE RECORDKEEPING REQUIREMENTS 

TITLE I OF THE BANK SECRECY ACT CONTAINS THE GENERAL RECORDKEEPING
REQUIREMNTS FOR BANKS AND OTHER FINANCIAL INSTITUTIONS, AS PROVIDED BY
THE SECRETARY BY REGULATION.  SECTION 101 OF THE ACT, 12 U.S.C. 1829B,
APPLIES BY ITS TERMS ONLY TO FEDERALLY INSURED BANKS.  IT CONTAINS
CONGRESSIONAL FINDINGS "THAT ADEQUATE RECORDS MAINTAINED BY INSURED
BANKS HAVE A HIGH DEGREE OF USEFULNESS IN CRIMINAL, TAX, AND REGULATORY
INVESTIGATIONS AND PROCEEDINGS."  THE MAJOR REQUIREMENTS OF THE SECTION
ARE THAT INSURED BANKS RECORD THE IDENTITIES OF PERSONS HAVING ACCOUNTS
WITH THEM AND OF PERSONS HAVING SIGNATURE AUTHORITY THEREOVER, IN SUCH
FORM AS THE SECRETARY MAY REQUIRE.  TO THE EXTENT THAT THE SECRETARY
DETERMINES BY REGULATION THAT SUCH RECORDS WOULD HAVE THE REQUISITE
"HIGH DEGREE OF USEFULNESS," THE BANKS MUST MAKE AND MAINTAIN MICROFILM
OR OTHER REPORODUCTIONS OF EACH CHECK, DRAFT, OR OTHER INSTRUMENT DRAWN
ON IT AND PRESENTED TO IT FOR PAYMENT, AND MUST MAINTAIN A RECORD OF
EACH CHECK, DRAFT, OR OTHER INSTRUMENT RECEIVED BY IT FOR DEPOSIT OR
COLLECTION, TOGETHER WITH AN IDENTIFICATION OF THE PARTY FOR WHOSE
ACCOUNT IT IS TO BE DEPOSITED OR COLLECTED.  SECTION 101 FURTHER
AUTHORIZES THE SECRETARY TO REQUIRE INSURED BANKS TO MAINTAIN A RECORD
OF THE IDENTITY OF ALL INDIVIDUALS WHO ENGAGE IN TRANSACTION WHICH ARE
REPORTABLE BY THE BANK UNDER TITLE II OF THE ACT, AND AUTHORIZES THE
SECRETARY TO PRESCRIBE THE REQUIRED RETENTION PERIOD FOR SUCH RECORDS. 
AUTHORIZE THE SECRETARY TO APPLY SIMILAR RECORDKEEPING REQUIREMENTS TO
INSTITUTIONS INSURED THEREUNDER.  SECTIONS 122 123 OF THE ACT, 12
U.S.C. 1952 - 1953, AUTHORIZE THE SECRETARY TO ISSUE REGULATIONS
APPLYING SIMILAR RECORDKEEPING REQUIREMENTS TO ADDITIONAL DOMESTIC
FINANCIAL INSTITUTIONS.  /3/ 

ALTHOUGH AN INITIAL DRAFT OF TITLE I, SEE H.R. 15073, 91ST CONG.,
1ST SESS., WOULD HAVE COMPELLED THE SECRETARY OF THE TREASURY TO
PROMULGATE REGULATIONS REQUIRING BANKS TO MAINTAIN COPIES OF ALL ITEMS
RECEIVED FOR COLLECTION OR PRESENTED FOR PAYMENT, THE ACT AS FINALLY
PASSED REQUIRED THE MAINTENANCE ONLY OF SUCH RECORDS AND MICROFILM
COPIES AS THE SECRETARY DETERMINED TO HAVE A "HIGH DEGREE OF
USEFULNESS."  /4/  UPON PASSAGE OF THE ACT, THE TREASURY DEPARTMENT
ESTABLISHED A TASK FORCE WHICH CONSULTED WITH REPRESENTATIVES FROM
FINANCIAL INSTITUTIONS, TRADE ASSOCIATIONS, AND GOVERNMENTAL AGENCIES
TO DETERMINE THE TYPE OF RECORDS WHICH SHOULD BE MAINTAINED.  WHEREAS
THE ORIGINAL REGULATIONS PROMULGATED BY THE SECRETARY OF TREASURY HAD
REQUIRED THE COPYING OF ALL CHECKS, THE TASK FORCE DECIDED, AND THE
REGULATIONS WERE ACCORDINGLY AMENDED, TO REQUIRE CHECK COPYING ONLY AS
TO CHECKS IN EXCESS OF $100.  /5/  THE REGULATIONS ALSO REQUIRE THE
COPYING OF ONLY "ON US" CHECKS: CHECKS DRAWN ON THE BANK OR ISSUED AND
PAYABLE BY IT.  31 CFR 103.34 (B)(3).  THE REGULATIONS EXEMPT FROM THE
COPYING REQUIREMENTS CERTAIN "ON US" CHECKS SUCH AS DIVIDEND, PAYROLL,
AND EMPLOYEE BENEFIT CHECKS, PROVIDED THEY ARE DRAWN ON AN ACCOUNT
EXPECTED TO AVERAGE AT LEAST ONE HUNDRED CHECKS PER MONTH.  /6/  THE
REGULATIONS ALSO REQUIRE BANKS TO MAINTAIN RECORDS OF THE IDENTITY AND
TAXPAYER IDENTIFICATION NUMBER OF EACH PERSON MAINTAINING A FINANCIAL
INTEREST IN EACH DEPOSIT OR SHARE ACCOUNT OPENED AFTER JUNE 30, 1972,
AND TO MICROFILM VARIOUS OTHER FINANCIAL DOCUMENTS.  31 CFR 103.34. 
/7/  IN ADDITION, THE SECRETARY'S REGULATIONS REQUIRE ALL FINANCIAL
INSTITUTIONS TO MAINTAIN A MICROFILM OR OTHER COPY OF EACH EXTENSION OF
CREDIT IN AN AMOUNT EXCEEDING $5,000 EXCEPT THOSE SECURED BY INTEREST
IN REAL PROPERTY, AND TO MICROFILM EACH ADVICE, REQUEST, OR INSTRUCTION
GIVEN OR RECEIVED REGARDING THE TRANSFER OF FUNDS, CURRENCY, OR OTHER
MONEY OR CREDIT IN AMOUNTS EXCEEDING $10,000 TO A PERSON, ACCOUNT, OR
PLACE OUTSIDE THE UNITED STATES.  31 CFR 103.33. 

REITERATING THE STATED INTENT OF THE CONGRESS, SEE, E.G., H.R. REP.
NO. 91 - 975, SUPRA, AT 10; S. REP. NO. 91 - 1139, SUPRA, AT 5, THE
REGULATIONS PROVIDE THAT INSPECTION, REVIEW, OR ACCESS TO THE RECORDS
REQUIRED BY THE ACT TO BE MAINTAINED IS GOVERNED BY EXISTING LEGAL
PROCESS.  31 CFR 103.51.  /8/  FINALLY, 125 - 127 OF THE ACT PROVIDE
FOR CIVIL AND CRIMINAL PENALTIES FOR WILLFUL VIOLATIONS OF THE
RECORDKEEPING REQUIREMENTS.  12 U.S.C. 1955 - 1957.     B. TITLE II-
FOREIGN FINANCIAL TRANSACTION REPORTING REQUIREMENTS 

CHAPTER 3 OF TITLE 22 OF THE BANK ACT AND THE REGULATIONS
PROMULGATED THEREUNDER GENERALLY REQUIRE PERSONS TO REPORT THE
TRANSPORTATION OF MONETARY INSTRUMENTS INTO OR OUT OF THE UNITED
STATES, OR RECEIPTS OF SUCH INSTRUMENTS IN THE UNITED STATES FROM
PLACES OUTSIDE THE UNITED STATES, IF THE TRANSPORTATION OR RECEIPT
INVOLVES INSTRUMENTS OF A VALUE GREATER THAN $5,000.  CHAPTER 4 OF
TITLE II OF THE ACT AND THE IMPLEMENTING REGULATIONS GENERALLY REQUIRE
UNITED STATES CITIZENS, RESIDENTS, AND BUSINESSMEN TO FILE REPORTS OF
THEIR RELATIONSHIPS WITH FOREIGN FINANCIAL INSTITUTIONS.  THE
LEGISLATIVE HISTORY OF THE FOREIGN-TRANSACTION REPORTING PROVISIONS
INDICATES THAT THE CONGRESS WAS CONCERNED WITH THE CIRCUMVENTION OF
UNITED STATES REGULATORY, TAX, AND CRIMINAL LAWS WHICH UNITED STATES
CITIZENS AND RESIDENTS WERE ACCOMPLISHING THROUGH THE MEDIUM OF SECRET
FOREIGN BANK TRANSACTIONS.  S. REP. NO. 91 - 1139, SUPRA, AT 7; H.R.
REP. NO. 91 - 975, SUPRA, AT 13. 

WITH THE TRANSACTION TO REPORT, IN THE MANNER PRESCRIBED BY THE
SECRETARY, THE TRANSPORTATION INTO OR OUT OF THE COUNTRY OF MONETARY
INSTRUMENTS /9/  EXCEEDING $5,000 ON ANY ONE OCCASION.  AS PROVIDED BY
THE SECRETARY'S REGULATIONS, THE REPORT MUST INCLUDE INFORMATION AS TO
THE AMOUNT OF THE INSTRUMENT, THE DATE OF RECEIPT, THE FORM OF
INSTRUMENT, AND THE PERSON FROM WHOM IT WAS RECEIVED.  SEE 31 CFR
103.23, 103.25.  /10/  THE REGULATIONS EXEMPT VARIOUS CLASSES OF
PERSONS FROM THIS REPORTING REQUIREMENT, INCLUDING BANKS, BROKERS OR
DEALERS IN SECURITIES, COMMON CARRIERS, AND OTHERS ENGAGED IN THE
BUSINESS OF TRANSPORTING CURRENCY FOR BANKS.  31 CFR 103.23 (C). 
MONETARY INSTRUMENTS WHICH ARE TRANSPORTED WITHOUT THE FILING OF A
REQUIRED REPORT, OR WITH A MATERIALLY ERRONEOUS REPORT, ARE SUBJECT TO
FORFEITURE UNDER 232 OF THE ACT, 31 U.S.C. 1102; A PERSON WHO HAS
FAILED TO FILE THE REQUIRED REPORT OR WHO HAS FILED A FALSE REPORT IS
SUBJECT TO CIVIL PENALTIES UNDER 207 AND 233, 31 U.S.C. 1056, AND 1103,
AS WELL AS CRIMINAL PENALTIES UNDER 209 AND 210, 31 U.S.C. 1058 -
1059. 

PRESCRIBE REGULATIONS REQUIRING RESIDENTS AND CITIZENS OF THE UNITED
STATES, AS WELL AS NONRESIDENTS IN THE UNITED STATES AND DOING BUSINESS
THEREIN, TO MAINTAIN RECORDS AND FILE REPORTS WITH RESPECT TO THEIR
TRANSACTIONS AND RELATIONSHPS WITH FOREIGN FINANCIAL AGENCIES. 
PURSUANT TO THIS AUTHORITY, THE REGULATIONS REQUIRE EACH PERSON SUBJECT
TO THE JURISDICTION OF THE UNITED STATES TO MAKE A REPORT ON YEARLY TAX
RETURNS OF ANY "FINANCIAL INTEREST IN, OR SIGNATURE OR OTHER AUTHORITY
OVER, A BANK, SECURITIES OR OTHER FINANCIAL ACCOUNT IN A FOREIGN
COUNTRY."  31 CFR 103.24.  VIOLATIONS OF THE REPORTING REQUIREMENT OF
241 AS IMPLEMENTED BY THE REGULATIONS ARE ALSO SUBJECT TO CIVIL AND
CRIMINAL PENALTIES UNDER 207, 209, AND 210 OF THE ACT, 31 U.S.C. 1056,
1058 - 1059. 

C. TITLE II--DOMESTIC FINANCIAL TRANSACTION REPORTING REQUIREMENTS 

IN ADDITION TO THE FOREIGN TRANSACTION REPORTING REQUIREMENTS
DISCUSSED ABOVE, TITLE II OF THE ACT PROVIDES FOR CERTAIN REPORTS OF
DOMESTIC TRANSACTIONS WHERE SUCH REPORTS HAVE A HIGH DEGREE OF
USEFULNESS IN CRIMINAL, TAX, OR REGULATORY INVESTIGATIONS OR
PRECEEDINGS.  PRIOR TO THE ENACTMENT OF THE ACT, FINANCIAL INSTITUTIONS
HAD BEEN PROVIDING REPORTS OF THEIR CUSTOMERS' LARGE CURRENCY
TRANSACTIONS PURSUANT TO REGULATIONS PROMULGATED BY THE SECRETARY OF
TREASURY /11/  WHICH HAD REQUIRED REPORTS OF ALL CURRENCY TRANSACTIONS
THAT, IN THE JUDGMENT OF THE INSTITUTION, EXCEEDED THOSE "COMMENSURATE
WITH THE CUSTOMARY CONDUCT OF THE BUSINESS INDUSTRY OR PROFESSION OF
THE PERSON OR ORGANIZATION CONCERNED"  /12/  IN PASSING THE ACT,
CONGRESS RECOGNIZED THAT THE USE OF FINANCIAL INSTITUTIONS, BOTH
DOMESTIC AND FOREIGN, IN FURTHERANCE OF ACTIVITIES DESIGNED TO EVADE
THE REGULATORY MECHANISMS OF THE UNITED STATES, HAD MARKEDLY
INCREASED.  H.R. REP. NO. 91 - 975, SUPRA, AT 10; S. REP. NO. 91 -
1139, SUPRA, AT 2 - 3.  CONGRESS RECOGNIZED THE IMPORTANCE OF REPORTS
OF LARGE AND UNUSUAL CURRENCY TRANSACTIONS IN FERRETING OUT CRIMINAL
ACTIVITY AND DESIRED TO STRENGTHEN THE STATUTORY BASIS FOR REQUIRING
SUCH REPOSTS.  H.R. REP., NO. 91 - 975, SUPRA, AT 11 - 12.  IN
PARTICUAR, CONGRESS INTENDED TO AUTHORIZED MORE DEFINITE STANDARDS FOR
DETERMINING WHAT CONSTITUTES THE TYPE OF UNUSUAL TRANSACTION THAT
SHOULD BE REPORTED.  S. REP. NO. 91 - 1139, SUPRA, AT 6. 

SECRETARY OF THE TREASURY THE AUTHORITY FOR SPECIFYING THE CURRENCY
TRANSACTIONS WHICH SHOULD BE REPORTED, "IF THEY INVOLVE THE PAYMENT,
RECEIPT, OR TRANSFER OF UNITED STATES CURRENCY, OR SUCH OTHER MONETARY
INSTRUMENTS AS THE SECRETARY MAY SPECIFY."  SECTION 222 OF THE ACT, 31
U.S.C. 1082, PROVIDES THAT THE SECRETARY MAY REQUIRE SUCH REPORTS FROM
THE DOMESTIC FINANCIAL INSTITUTION INVOLVED OR THE PARTIES TO THE
TRANSACTIONS OR BOTH.  /13/  SECTION 223 OF THE ACT, 31 U.S.C., 1083,
AUTHORIZED THE SECRETARY TO DESIGNATE FINANCIAL INSTITUTIONS TO RECEIVE
SUCH REPORTS. 

IN THE IMPLEMENTING REGULATIONS PROMULGATED UNDER THIS AUTHORITY,
THE SECRETARY OF THE TREASURY HAS REQUIRED ONLY THAT FINANCIAL
INSTITUTIONS FILE CERTAIN REPORTS WITH THE COMMISSIONER OF INTERNAL
REVENUE.  THE REGULATIONS REQUIRE THAT A REPORT BE MADE FOR EACH
DEPOSIT, WITHDRAWAL, EXCHANGE OF CURRENCY, /14/  OR OTHER PAYMENT OR
TRANSFER "WHICH INVOLVES A TRANSACTION IN CURRENCY OF MORE THAN
$10,000."  31 CFR 103.22.  /15/  THE REGULATIONS EXEMPT FROM THE
REPORTING REQUIREMENT CERTAIN INTRABANK TRANSACTIONS AND "TRANSACTIONS
WITH AN ESTABLISHED CUSTOMER MAINTAING A DEPOSIT RELATIONSHIP (IN
AMOUNTS) COMMENSURATE WITH THE CUSTOMARY CONDUCT OF THE BUSINESS,
INDUSTRY, OR PROFFESSION OF THE CUSTOMER CONCERNED."  IBID.  /16/
PROVISION IS ALSO MADE IN THE REGULATIONS WHEREBY INFORMATION OBTAINED
BY THE SECRETARY OF THE TREASURY MAY IN SOME INSTANCES AND IN
CONFIDENCE BE AVAILABLE TO OTHER DEPARTMENTS OR AGENCIES OF THE UNITED
STATES.  31 CFR 103.43; SEE 31 U.S.C. 1601.  /17/  THERE IS ALSO
PROVISION MADE IN THE REGULATIONS WHEREBY THE SECRETARY MAY IN HIS SOLE
DISCRETION MAKE EXCEPTIONS TO OR GRANT EXEMPTIONS FROM THE REQUIREMENTS
OF THE REGULATION.  31 CFR 103.45 (A).  /18/  FAILURE TO FILE THE
REQUIRED REPORT OR THE FILING OF A FALSE REPORT SUBJECTS THE BANKS TO
CRIMINAL AND CIVIL PENALTIES.  31 U.S.C. 1056, 1058, 1059. 

        II 

THIS LITIGATION BEGAN IN JUNE 1972 IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.  VARIOUS PLAINTIFFS
APPLIED FOR A TEMPORARY RESTRAINING ORDER PROHIBITING THE DEFENDANTS,
INCLUDING THE SECRETARY OF TREASURY AND HEADS OF OTHER FEDERAL
AGENCIES, FROM ENFORCING THE PROVISIONS OF THE BANK SECRECY ACT,
ENACTED BY CONGRESS ON OCTOBER 26, 1970, AND THEREAFTER IMPLEMENTED BY
THE TREASURY REGULATIONS.  THE PLAINTIFFS BELOW INCLUDED SEVERAL NAMED
INDIVIDUAL BANK CUSTOMERS, THE SECURITY NATIONAL BANK, THE CALIFORNIA
BANKERS ASSOCIATION, AND THE AMERICAN CIVIL LEBERTIES UNION (ACLU),
SUING ON BEHALF OF ITSELF AND ITS VARIOUS BANK CUSTOMER MEMBERS. 

THE PLAINTIFFS' PRINCIPAL CONTENTION IN THE DISTRICT COURT WAS THAT
THE ACT AND THE REGULATIONS WERE VIOLATIVE OF THE FOURTH AMENDMENT'S
GUARANTEE AGAINST UNREASONABLE SEARCH AND SEIZURE.  THE COMPLAINTS ALSO
ALLEGED THAT THE ACT VIOLATED THE FIRST, FIFTH, NINTH, TENTH, AND
FOURTEENTH AMENDMENTS.  THE DISTRICT COURT ISSUED A TEMPORARY
RESTRAINING ORDER ENJOINING THE ENFORCEMENT OF THE FOREIGN AND DOMESTIC
REPORTING PROVISIONS OF TITLE II OF THE ACT, AND REQUESTED THE
CONVENING OF A THREE-JUDGE COURT PURSUANT TO 28 U.S.C. 2284 TO
ENTERTAIN THE MYRIAD OF CONSTITUTIONAL CHALLENGES TO THE ACT. 

THE THREE-JUDGE DISTRICT COURT UNANIMOUSLY UPHELD THE
CONSTITUTIONALITY OF THE RECORDKEEPING REQUIREMENTS OF TITLE I OF THE
ACT AND THE ACCOMPANYING REGULATIONS, AND THE REQUIREMENTS OF TITLE II
OF THE ACT AND THE REGULATIONS FOR REPORTS CONCERNING THE IMPORT AND
EXPORT OF CURRENCY AND MONETARY INSTRUMENTS AND RELATIONSHIPS WITH
FOREIGN FINANCIAL INSTITUTIONS.  THE DISTRICT COURT CONCLUDED, HOWEVER,
WITH ONE JUDGE DISSENTING, THAT THE DOMESTIC REPORTING PROVISIONS OF
221 - 223 OF TITLE II OF THE ACT, 31 U.S.C. 1081 - 1083, WERE REPUGNANT
TO THE FOURTH AMENDMENT OF THE CONSTITUTION.  347 F. SUPP. 1242
(1972).  THE COURT HELD THAT SINCE THE DOMESTIC REPORTING PROVISIONS OF
THE ACT PERMITTED THE SECRETARY OF THE TREASURY TO REQUIRE DETAILED
REPORTS OF VIRTUALLY ALL DOMESTIC FINANCIAL TRANSACTIONS, INCLUDING
THOSE INVOLVING PERSONAL CHECKS AND DRAFTS, AND SINCE THE ACT COULD
CONCEIVABLY BE ADMINISTERED IN SUCH A MANNER AS TO COMPEL DISCLOSURE OF
ALL DETAILS OF A CUSTOMER'S FINANCIAL AFFIARS, THE DOMESTIC REPORTING
PROVISIONS MUST FALL AS FACIALLY VIOLATIVE OF THE FOURTH AMENDMENT. 
THEIR ENFORCEMENT WAS ENJOINED. 

BOTH THE PLAINTIFFS AND THE GOVERNMENT DEFENDANTS FELED TIMELY
NOTICES OF APPEAL FROM THE PORTIONS OF THE DISTRICT COURT JUDGMENT
ADVERSE TO THEM.  WE NOTED PROBABLE JURISDICTION OVER THREE SEPARATE
APPEALS FROM THE DECISION BELOW PURSUANT TO 28 U.S.C. 1252 AND 1253. 
414 U.S. 816 (1973): 

NO. 72 - 985.  THE APPELLANT IN THIS APPEAL IS THE CALIFORNIA
BANKERS ASSOCIATION, AN ASSOCIATION OF ALL STATE AND NATIONAL BANKS
DOING BUSINESS IN CALIFORNIA.  THE ASSOCIATION CHALLENGES THE
CONTITUTIONALITY OF THE RECORDKEEPING PROVISIONS OF TITLE I, AS
IMPLEMENTED BY THE REGULATIONS, ON TWO GROUNDS.  FIRST, THE ASSOCIATION
CONTENDS THAT THE ACT VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT BECAUSE THERE IS NO RATIONAL RELATIONSHIP BETWEEN THE
OBJECTIVES OF THE ACT AND THE RECORDKEEPING REQUIRED, AND BECAUSE THE
ACT PLACES AN UNREASONABLE BURDEN ON THE ASSOCIATION'S MEMBER BANKS. 
SECOND, THE ASSOCIATION CONTENDS THAT THE RECORDKEEPING REQUIREMENTS OF
TITLE I VIOLATE THE FIRST AMENDMENT RIGHT OF PRIVACY AND ANONYMITY OF
THE MEMBER BANKS' CUSTOMER. 

NO. 72 -  1196.  THIS APPEAL WAS FILED ON BEHALF OF A NUMBER OF
PLAINTIFFS IN THE ORIGINAL SUIT IN THE DISTRICT COURT: ON BEHALF OF THE
SECURITY NATIONAL BANK, ON BEHALF OF THE AMERICAN CIVIL LEBERTIES UNION
AS A DEPOSITOR IN A BANK SUBJECT TO THE RECORDKEEPING REQUIREMENTS AND
AS A REPRESNTATIVE OF ITS BANK CUSTOMER MEMBERS, AND ON BEHALF OF
CERTAIN BANK CUSTOMERS.  THE APPEAL FIRST CHALLENGES THE
CONSTITUTIONALITY OF THE RECORDKEEPING REQUIREMENTS OF TITLE I OF THE
ACT AND THE IMPLEMENTING REGULATIONS, AS DOES THE APPEAL IN NO. 72 -
985, SUPRA.  SECOND, THE APPEAL CHALLENGES THE CONSTITUTIONALITY OF THE
FOREIGN FINANCIAL TRANSACTION REPORTING REQUIREMENTS OF TITLE II OF THE
ACT AND THE IMPLEMENTING REGULATIONS.  THESE RECORDKEEPING AND FOREIGN
REPORTING REQUIREMENTS ARE CHALLENGED ON THREE GROUNDS: FIRST, THAT THE
REQUIREMENTS CONSTITUTE AN UNREASONABLE SEARCH AND SEIZURE IN VIOLATION
OF THE FOURTH AMENDMENT; SECOND, THAT THE REQUIREMENTS CONSTITUTE A
COERCED CREATION AND RETENTION OF DOCUMENTS IN VIOLATION OF THE FIFTH
AMENDMENT PRIVLEGE AGAINST COMPULSORY SELF-INCRIMINATION; AND THIRD,
THAT THE REQUIREMENTS VIOLATE THE FIRST AMENDMENT RIGHTS OF FREE SPEECH
AND FREE ASSOCIATION. 

NO. 72 - 1073.  IN THIS APPEAL, THE SECRETARY OF THE TREASURY, AS
APPELLANT, CHALLENGES THAT PORTION OF THE DISTRICT COURT'S ORDER
HOLDING THE DOMESTIC FINANCIAL TRANSACTION REPORTING REQUIREMENTS OF
TITLE II TO VIOLATE THE FOURTH AMENDMENT.  THE GOVERNMENT CONTENDS THAT
THE DISTRICT COURT ERRED IN HOLDING THESE PROVISIONS OF TITLE II TO BE
UNCONSTITUTIONAL ON THEIR FACE, WITHOUT CONSIDERING THE ACTUAL
IMPLEMENTATION OF THE STATUTE BY THE TREASURY REGULATIONS.  THE
GOVERNMENT URGES THAT SINCE ONLY THOSE WHO VIOLATE THESE REGULATIONS
MAY INCUR CIVIL OR CRIMINAL PENALTIES, IT IS THE ACTUAL REGULATIONS
ISSUED BY THE SECRETARY OF THE TREASURY, AND NOT THE BROAD AUTHORIZING
LANGUAGE OF THE STATUTE, WHICH ARE TO BE TESTED AGAINST THE STANDARDS
OF THE FOURTH AMENDMENT; AND THAT WHEN SO TESTED THEY ARE VALID. 

FOR CONVENIENCE, WE WILL REFER THROUGHOUT THE REMAINDER OF THIS
OPINION TO THE DISTRICT COURT PLAINTIFFS AS PLAINTIFFS, SINCE THEY ARE
BOTH APPELLANTS AND APPELLEES IN THE APPEALS FILED IN THIS COURT. 

        III 

WE ENTERTAIN SERIOUS DOUBT AS TO THE STANDING OF THE PLAINTIFF
CALIFORNIA BANKERS ASSOCIATION TO LITIGATE THE CLAIMS WHICH IT ASSERTS
HERE.  ITS COMPLAINT ALLEGED THAT IT IS AN UNINCORPORATED ASSOCIATION
CONSISTING OF 158 STATE AND NATIONAL BANDS DOING BUSINESS IN
CALIFORNIA.  SO FAR AS APPEARS FROM THE COMPLAINT, THE ASSOCIATION IS
NOT IN ANY WAY ENGAGED IN THE BANKING BUSINESS, AND IS NOT EVEN SUBJECT
TO THE SECRETARY'S REGULATIONS WHICH IT CHALLENGES.  WHILE THE DISTRICT
COURT FOUND THAT THE ASSOCIATION'S COMPLAINT CONTAINS NO SUCH
ALLEGATION.  THE ASSOCIATION SEEKS TO LITIGATE, NOT ONLY CLAIMS ON
BEHALF OF ITS MEMBER BANKS, BUT ALSO CALIMS OF INJURY TO THE DEPOSITORS
OF ITS MEMBER BANKS.  SINCE THE GOVERNMENT HAS NOT QUESTIONED THE
STANDING OF THE ASSOCIATION TO LITIGATE THE CLAIMS PECULIAR TO BANKS,
AND MORE IMPORTANTLY SINCE PLAINTIFF SECURITY NATIONAL BANK HAS
STANDING AS AN AFFECTED BANK, AND THEREFORE DETERMINATION OF THE
ASSOCIATION'S STANDING WOULD IN NO WAY AVOID RESOLUTION OF ANY
CONSTITUTIONAL ISSUES, WE ASSUME WITHOUT DECIDING THAT THE ASSOCIATION
DOES HAVE STANDING.  SEE DOE V. BOLTON, 410 U.S. 179, 189 (1973);
SIERRA CLUB V. MORTON, 405 U.S. 727, 739 (1972); NAACP V. BUTTON, 371
U.S. 415, 428 (1963).     WE PROCEED THEN TO CONSIDER THE INITIAL
CONTENTION OF THE BANK PLAINTIFFS THAT THE RECORDKEEPING REQUIREMENTS
IMPOSED BY THE SECRETARY'S REGULATIONS UNDER THE AUTHORITY OF TITLE I
DEPRIVE THE BANKS OF DUE PROCESS BY IMPOSING UNREASONABLE BURDENS UPON
THEM, AND BY SEEKING TO MAKE THE BANKS THE AGENTS OF THE GOVERNMENT IN
SURVEILLANCE OF ITS CITIZENS.  SUCH RECORDKEEPING REQUIREMENTS ARE
SCARCELY A NOVELTY.  THE INTERNAL REVENUE CODE, FOR EXAMPLE, CONTAINS A
GENERAL AUTHORIZATION TO THE SECRETARY OF THE TREASURY TO PRESCRIBE BY
REGULATION RECORDS TO BE KEPT BY BOTH BUSINESS AND INDIVIDUAL
TAXPAYERS, 26 U.S.C. 6001, WHICH HAS BEEN IMPLEMENTED BY THE SECRETARY
IN VARIOUS REGULATIONS.  /19/  AND THIS COURT HAS BEEN FACED WITH
NUMEROUS CASES INVOLVING SIMILAR RECORDKEEPING REQUIREMENTS.  SIMILAR
REQUIREMENTS IMPOSED ON THE COUNTLESS BUSINESSES SUBJECT TO THE
EMERGENCY PRICE CONTROL ACT DURING THE SECOND WORLD WAR WERE UNHELD IN
SHAPIRO V. UNITED STATES, 335 U.S. 1 (1948), THE COURT OBSERVING THAT
THERE WAS "A SUFFICIENT RELATION BETWEEN THE ACTIVITY SOUGHT TO BE
REGULATED AND THE PUBLIC CONCERN SO THAT THE GOVERNMENT CAN
CONSTITUTIONALLY REGULATE OR FORBID THE BASIC ACTIVITY CONCERNED, AND
CAN CONSTITUTIONALLY REQUIRE THE KEEPING OF PARTICULAR RECORDS, SUBJECT
TO INSPECTION . . . ."  ID., AT 32.  THE UNITED STATES V. DARBBY, 312
U.S. 100 (1941), THE COURT HELD THAT EMPLYERS SUBJECT TO THE FAIR LABOR
STANDARDS ACT COULD BE REQUIRED TO KEEP RECORDS OF WAGES PAID AND HOURS
WORKED: 

"SINCE, AS WE HAVE HELD, CONGRESS MAY REQUIRE PRODUCTION FOR
INTERSTATE COMMERCE TO CONFORM TO (WAGE AND HOUR) CONDITIONS, IT MAY
REQUIRE THE EMPLOYER, AS A MEANS OF ENFORCING THE VALID LAW, TO DEEP A
RECORD SHOWING WHETHER HE HAS IN FACT COMPLIED WITH IT."  ID., AT 125. 

WE SEE NO REASON TO REACH A DIFFERENT RESULT HERE.  THE PLENARY
AUTHORITY OF CONGRESS OVER BOTH INTERSTATE AND FOREIGN COMMERCE IS NOT
OPEN TO DISPUTE, AND THAT BODY WAS NOT LIMITED TO ANY ONE PARTICULAR
APPROACH TO EFFECTUATE ITS CONCERN THAT NEGOTIABLE INSTRUMENTS MOVING
IN THE CHANNELS OF THAT COMMERCE WERE SIGNIFICANTLY AIDING CRIMINAL
ENTERPRISE.  THE SECRETARY OF THE TREASURY, AUTHORIZED BY CONGRESS,
CONCLUDED THAT COPYING AND RETENTION OF CERTAIN NEGOTIABLE INSTRUMENTS
BY THE BANK UPON WHICH THEY WERE DRAWN WOULD FACILITATE THE DETECTION
AND APPREHENSION OF PARTICIPANTS IN SUCH CRIMINAL ENTERPRISES. 
CONGRESS COULD HAVE CLOSED THE CHANNELS OF COMMERCE ENTIRELY TO
NEGOTIABLE INSTRUMENTS, HAD IT THOUGHT THAT SO DRASTIC A SOLUTION WERE
WARRANTED; IT COULD HAVE MADE THE TRANSMISSION OF THE PROCEEDS OF ANY
CRIMINAL ACTIVITY BY NEGOTIABLE INSTRUMENTS IN INTERSTATE OR FOREIGN
COMMERCE A SEPARATE CRIMINAL OFFENSE.  HAD IT CHOSEN TO DO THE LATTER,
UNDER THE PRECISE AUTHORITY OF DARBY OR SHAPIRO, SUPRA, IT COULD HAVE
REQUIRED THAT EACH INDIVIDUAL ENGAGING IN THE SENDING OF NEGOTIABLE
INSTRUMENTS THROUGH THE CHANNELS OF COMMERCE MAINTAIN A RECORD OF SUCH
ACTION; THE BANK PLAINTIFFS CONCEDE AS MUCH.  /20/ 

THE BANK PLAINTIFFS CONTEND, HOWEVER, THAT THE ACT DOES NOT HAVE AS
ITS PRIMARY PURPOSE REGULATION OF THE BANKS THEMSELVES, AND THEREFORE
THE REQUIREMENT THAT THE BANKS KEEP THE RECORDS IS AN UNREASONABLE
BURDEN ON THE BANKS.  SHAPIRO AND DARBY, WHICH INVOLVED LEGISLATION
IMPOSING RECORDKEEPING REQUIREMENTS IN AID OF SUBSTANTIVE REGULATION,
ARE THEREFORE SAID NOT TO CONTROL.  BUT PROVISIONS REQUIRING REPORTING
OR RECORDKEEPING BY THE PAYING INSTITUTION, RATHER THAN THE INDIVIDUAL
WHO RECEIVES THE PAYMENT, ARE BY NO MEANS UNIQUE.  THE INTERNAL REVENUE
CODE AND ITS REGULATIONS, FOR EXAMPLE, CONTAIN PROVISIONS WHICH REQUIRE
BUSINESSES TO REPORT INCOME PAYMENTS TO THIRD PARTIES (26 U.S.C. 6041
(A)), EMPLOYERS TO KEEP RECORDS OF CERTAIN PAYMENTS MADE TO EMPLOYEES
(TREAS.  REG.  31.6001 ET SEQ.), CORPORATIONS TO REPORT DIVIDEND
PAYMENTS MADE TO THIRD PARTIES (26 U.S.C. 6042), COOPERATIVES TO REPORT
PATRONAGE DIVIDEND PAYMENTS (26 U.S.C. 6044), BROKERS TO REPORT
CUSTOMERS' GAINS AND LOSSES (26 U.S.C. 6045), AND BANKS TO REPORT
PAYMENTS OF INTEREST MADE TO DEPOSITORS (26 U.S.C. 6049). 

IN DARBY AN IDENTIFIABLE CLASS OF EMPLOYER WAS MADE SUBJECT TO THE
FAIR LABOR STANDARDS ACT, AND IN SHAPIRO AN IDENTIFIABLE CLASS OF
BUSINESS HAD BEEN PLACED UNDER THE PRICE CONTROL ACT; IN EACH OF THOSE
INSTANCES, CONGRESS FOUND THAT THE PURPOSE OF ITS REGULATION WAS
ADEQUATELY SECURED BY REQUIRING RECORDS TO BE KEPT BY THE PERSONS
SUBJECT TO THE SUBSTANTIVE COMMANDS OF THE LEGISLATION.  IN THIS CASE,
HOWEVER, CONGRESS DETERMINED THAT RECORDKEEPING ALONE WOULD SUFFICE FOR
ITS PURPOSES, AND THAT NO CORRELATIVE SUBSTANTIVE LEGISLATION WAS
REQUIRED.  NEITHER THIS FACT, NOR THE FACT THAT THE PRINCIPAL
CONGRESSIONAL CONCERN IS WITH THE ACTIVITIES OF THE BANKS'  CUSTOMERS,
RATHER THAN WITH THE ACTIVITIES OF BANKS THEMSELVES, SERVES TO
INVALIDATE THE LEGISLATION ON DUE PROCESS GROUNDS. 

THE BANK PLAINTIFFS PROCEED FROM THE PREMISE THAT THEY ARE COMPLETE
BYSTANDERS WITH RESPECT TO TRANSACTIONS INVOLVING DRAWERS AND DRAWEES
OF THEIR NEGOTIABLE INSTRUMENTS.  BUT SUCH IS HARDLY THE CASE.  A
VOLUMINOUS BODY OF LAW HAS GROWN UP DEFINING THE RIGHTS OF THE DRAWER,
THE PAYEE, AND THE DRAWEE BANK WITH RESPECT TO VARIOUS KINDS OF
NEGOTIABLE INSTRUMENTS.  THE RECOGNITION OF SUCH RIGHTS, BOTH IN THE
VARIOUS STATES OF THIS COUNTRY AND IN OTHER COUNTRIES, IS ITSELF A PART
OF THE REASON WHY THE BANKING BUSINESS HAS FLOURISHED AND PLAYED SO
PROMINENT A PART IN COMMERCIAL TRANSACTIONS.  THE BANK IS A PARTY TO
ANY NEGOTIABLE INSTRUMENT DRAWN UPON IT BY A DEPOSITOR, AND UPON
ACCEPTANCE OR PAYMENT OF AN INSTRUMENT INCURS OBLIGATIONS OT THE
PAYEE.  WHILE IT OBVIOUSLY IS NOT PRIVY TO THE BACKGROUND OF A
TRANSACTION IN WHICH A NEGOTIABLE INSTRUMENT IS USED, THE EXISTING WIDE
ACCEPTANCE AND AVAILABLIITY OF NEGOTIABLE INSTRUMENTS IS OF INESTIMABLE
BENEFIT TO THE BANKING INDUSTRY AS WELL AS TO COMMERCE IN GENERAL. 

BANKS ARE THEREFORE NOT CONSCRIPTED NEUTRALS IN TRANSACTIONS
INVOLVING NEGOTIABLE INSTRUMENTS, BUT PARTIES TO THE INSTRUMENTS WITH A
SUBSTANTIAL STAKE IN THEIR CONTINUED AVAILABILITY AND ACCEPTANCE. 
CONGRESS NOT ILLOGICALLY DECIDED THAT IF RECORDS OF TRANSACTIONS OF
NEGOTIABLE INSTRUMENTS WERE TO BE KEPT AND MAINTAINED, IN ORDER TO BE
AVAILABLE AS EVIDENCE UNDER CUSTOMARY LEGAL PROCESS IF THE OCCASION
WARRANTED, THE BANK WAS THE MOST EASILY IDENTIFIABLE PARTY TO THE
INSTRUMENT AND THEREFORE SHOULD DO THE RECORDKEEPING.  WE BELIEVE THIS
CONCLUSION IS CONSISTENT WITH DARBY AND SHAPIRO, AND THAT THERE IS A
SUFFICIENT CONNECTION BETWEEN THE EVIL CONGRESS SOUGHT TO ADDRESS AND
THE RECORDKEEPING PROCEDURE IT REQUIRED TO PASS MUSTER UNDER THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  /21/ 

THE BANK PLAINTIFFS SOMEWHAT HALFHEARTEDLY ARGUE, ON THE BASIS OF
THE COSTS WHICH THEY ESTIMATE WILL BE INCURRED BY THE BANKING INDUSTRY
IN COMPLYING WITH THE SECRETARY'S RECORDKEEPING REQUIREMENT, THAT THIS
COST BURDEN ALONE DEPRIVES THEM OF DUE PROCESS OF LAW.  THEY CITE NO
CASES FOR THIS PROPOSITION, AND IT DOES NOT WARRANT EXTENDED
TREATMENT.  IN ITS COMPLAINT FILED IN THE DISTRICT COURT, PLAINTIFF
SECURITY NATIONAL BANK ASSERTED THAT IT WAS AN "INSURED" NATIONAL BANK;
TO THE EXTENT THAT CONGRESS HAS ACTED TO REQUIRE RECORDS ON THE PART OF
BANKS INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, OF OF
FINANCIAL INSTITUTIONS INSURED UNDER THE NATIONAL HOUSING ACT, CONGRESS
IS SIMPLY IMPOSING A CONDITION ON THE SPENDING OF PUBLIC FUNDS.  SEE,
E.G., STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548 (1937); HELVERING V.
DAVIS, 301 U.S. 619 (1937).  SINCE THERE WAS NO ALLEGATION IN THE
COMPLAINTS FILED IN THE DISTRICT COURT, AND SINCE IT IS NOT CONTENDED
HERE THAT ANY BANK PLAINTIFF IS NOT COVERED BY FDIC OR HOUSING ACT
INSURANCE.  IT IS UNNECESSARY TO CONSIDER WHAT QUESTIONS WOULD ARISE
HAD CONGRESS RELIED SOLELY UPON ITS POWER OVER INTERSTATE COMMERCE TO
IMPOSE THE RECORDKEEPING REQUIREMENTS.  THE COST BURDENS IMPOSED ON THE
BANKS BY THE RECORDKEEPING REQUIREMENTS ARE FAR FROM UNREASONABLE, AND
WE HOLD THAT SUCH BURDENS DO NOT DENY THE BANKS DUE PROCESS OF LAW. 
/22/ 

THE BANK PLAINTIFFS ALSO CONTEND THAT THE RECORDKEEPING REQUIREMENTS
IMPOSED BY THE SECRETARY PURSUANT TO THE ACT UNDERCUT A DEPOSITOR'S
RIGHT TO EFFECTIVELY CHALLENGE A THIRD-PARTY SUMMONS ISSUED BY THE
INTERNAL REVENUE SERVICE.  SEE REISMAN V. CAPLIN, 375 U.S. 440 (1964);
DONALDSON V. UNITED STATES, 400 U.S. 517 (1971); COUCH V. UNITED
STATES, 409 U.S. 322 (1973).  WHATEVER WRONG SUCH A RESULT MIGHT WORK
ON A DEPOSITOR, IT WORKS NO INJURY TO HIS BANK.  IT IS TRUE THAT IN A
LIMITED CLASS OF CASES THIS COURT HAS PERMITTED A PARTY WHO SUFFERED
INJURY AS A RESULT OF THE OPERATION OF ALW TO ASSERT HIS RIGHTS EVEN
THOUGH THE SANCTION OF THE LAW WAS BORNE BY ANOTHER, PIERCE V. SOCIETY
OF SISTERS, 268 U.S. 510 (1925), AND CONVERSELY, THE COURT HAS ALLOWED
A PARTY UPON WHOM THE SANCTION FALLS TO RELY ON THE WRONG DONE TO A
THIRD PARTY IN OBTAINING RELIEF, BARROWS V. JACKSON, 346 U.S. 249
(1953); EISENSTADT V. BAIRD, 405 U.S. 438 (1972).  WHETHER THE BANK
MIGHT IN OTHER CIRCUMSTANCES RELY ON AN INJURY TO ITS DEPOSITORS, OR
WHETHER, INSTEAD, THIS CASE IS GOVERNED BY THE GENERAL RULE THAT ONE
HAS STANDING ONLY TO VINDICATE HIS OWN RIGHTS, E.G., MOOSE LODGE V.
IRVIS, 407 U.S. 163, 166 (1972), NEED NOT NOW BE DECIDED, SINCE, IN ANY
EVENT, THE CLAIM IS PREMATURE.  CLAIMS OF DEPOSITORS AGAINST THE
COMPULSION BY LAWFUL PROCESS OF BANK RECORDS INVOLVING THE DEPOSITORS'
OWN TRANSACTIONS MUST WAIT UNTIL SUCH PROCESS ISSUES. 

CERTAIN OF THE PLAINTIFFS BELOW, APPELLANTS IN NO. 72 - 1196,
INCLUDING THE AMERICAN CIVIL LEBERTIES UNION, THE SECURITY NATIONAL
BANK, AND VARIOUS INDIVIDUAL PLAINTIFF DEPOSITORS, ARGUE THAT IF "THE
DOMINANT PURPOSE OF THE BANK SECRECY ACT IS THE CREATION, PRESERVATION,
AND COLLECTION OF EVIDENCE OF CRIME . . . (IT IS AGAINST THE STANDARDS
APPLICABLE TO THE CRIMINAL LAW, THEN, THAT ITS CONSTITUTIONALITY MUST
BE MEASURED."  THEY CONTEND THAT THE RECORDKEEPING REQUIREMENTS VIOLATE
THE PROVISIONS OF THE FOURTH, FIFTH, AND FIRST AMENDMENTS TO THE
CONSTITUTION.  AT THIS POINT, WE DEAL ONLY WITH SUCH CONSTITUTIONAL
CHALLENGES AS THEY RELATE TO THE RECORDKEEPING PROVISIONS OF TITLE I OF
THE ACT. 

WE SEE NOTHING IN THE ACT WHICH VIOLATES THE FOURTH AMENDMENT RIGHTS
OF ANY OF THES PLAINTIFFS.  NEITHER THE PROVISIONS OF TITLE I NOR THE
IMPLEMENTING REGULATIONS REQUIRE THAT ANY INFORMATION CONTAINED IN THE
RECORDS BE DISCLOSED TO THE GOVERNMENT; BOTH THE LEGISLATIVE HISTORY
AND THE REGULATIONS MAKE SPECIFIC REFERENCE TO THE FACT THAT ACCESS TO
THE RECORDS IS TO BE CONTROLLED BY EXISTING LEGAL PROCESS. 

PLAINTIFFS URGE THAT WHEN THE BANK MAKES AND KEEPS RECORDS UNDER THE
COMPULSION OF THE SECRETARY'S REGULATIONS IT ACTS AS AN AGENT OF THE
GOVERNMENT, AND THEREBY ENGAGES IN A "SEIZURE" OF THE RECORDS OF ITS
CUSTOMERS.  BUT ALL OF THE RECORDS WHICH THE SECRETARY REQUIRES TO BE
KEPT PERTAIN TO TRANSACTIONS TO WHICH THE BANK WAS ITSELF A PARTY.  SEE
UNITED STATES V. BISWELL, 406 U.S. 311, 316 (1972).  THE FACT THAT A
LARGE NUMBER OF BANKS VOLUNTARILY KEPT RECORDS OF THIS SORT BEFORE THEY
WERE REQUIRED TO DO SO BY REGULATION IS AN INDICATION THAT THE RECORDS
WERE THOUGHT USEFUL TO THE BANK IN THE CONDUCT OF ITS OWN BUSINESS, AS
WELL AS IN REFLECTING TRANSACTIONS OF ITS CUSTOMERS.  WE DECIDED LONG
AGO THAT AN INTERNAL REVENUE SUMMONS DIRECTED TO A THIRD-PARTY BANK WAS
NOT A VIOLATION OF THE FOURTH AMENDMENT RIGHTS OF EITHER THE BANK OR
THE PERSON UNDER INVESTIGATION BY THE TAXING AUTHORITIES.  SEE FIRST
NATIONAL BANK V. UNITED STATES, 267 U.S. 576 (1925), AFF'G 295 F. 142
(SD ALA. 1924); DONALDSON V. UNITED STATES, SUPRA, AT 522.  "(IT IS
DIFFICULT TO SEE HOW THE SUMMONING OF A THIRD PARTY, AND THE RECORDS OF
A THIRD PARTY, CAN VIOLATE THE RIGHTS OF THE TAXPAYER, EVEN IF A
CRIMINAL PROSECUTION IS CONTEMPLATED OR IN PROGRESS."  ID., AT 537
(DOUGLAS, J., CONCURRING). 

PLAINTIFFS NEVERTHELESS CONTEND THAT THE BROAD AUTHORIZATION GIVEN
BY THE ACT TO THE SECRETARY TO REQUIRE THE MAINTENANCE OF RECORDS,
COUPLED WITH THE BROAD AUTHORITY TO REQUIRE CERTAIN REPORTS OF
FINANCIAL TRANSACTIONS, AMOUNTS TO THE POWER TO COMMIT AN UNLAWFUL
SEARCH OF THE BANKS AND THE CUSTOMERS.  THIS ARGUMENT IS BASED ON THE
FACT THAT 31 CFR 103.45, AS IT EXISTED WHEN THE DISTRICT COURT RULED IN
THE CASE, PERMITTED THE SECRETARY TO IMPOSE ADDITIONAL RECORDKEEPING OR
REPORTING REQUIREMENTS BY WRITTEN ORDER OR AUTHORIZATION; THIS
AUTHORITY HAS NOW BEEN DELETED FROM THE REGULATION; /23/  PLAINTIFFS
THUS ARGUE THAT THE SECRETARY COULD ORDER THE IMMEDIATE REPORTING OF
ANY RECORDS MADE OR KEPT UNDER THE COMPULSION OF THE ACT.  WE, OF
COURSE, MUST EXAMINE THE STATUTE AND THE REGULATIONS AS THEY NOW
EXIST.  HALL V. BEALS, 396 U.S. 45, 48 (1969) (PER CURIAM); THORPE V.
HOUSING AUTHORITY, 393 U.S. 268, 281 N. 38 (1969).  EVEN IF PLAINTIFFS
WERE CORRECT IN URGING THAT WE DECIDE THE CASE ON THE BASIS OF THE
REGULATION AS IT EXISTED AT THE TIME THE DISTRICT COURT RULED, THEIR
CONTENTION WOULD BE WITHOUT MERIT.  WHATEVER THE SECRETARY MIGHT HAVE
AUTHORIZED UNDER THE REGULATION, HE DID NOT IN FACT REQUIRE THE
REPORTING OF ANY RECORDS MADE OR KEPT UNDER THE COMPULSION OF THE ACT. 
INDEED, SINCE THE LEGISLATIVE HISTORY OF THE ACT CLEARLY INDICATES THAT
RECORDS WHICH IT AUTHORIZED THE SECRETARY TO REQUIRE WERE TO BE
AVAILABLE ONLY BY NORMAL LEGAL PROCESS, IT IS DOUBTFUL THAT THE
SECRETARY WOULD HAVE THE AUTHORITY ASCRIBED TO HIM BY PLAINTIFFS EVEN
UNDER THE EARLIER FORM OF THE REGULATIONS.  BUT IN ANY EVENT, WHETHER
OR NOT HE HAD THE AUTHORITY, HE DID NOT EXERCISE IT, AND IN FACT NONE
OF THE RECORDS WERE REQUIRED TO BE REPORTED.  SINCE WE HOLD THAT THE
MERE MAINTENANCE OF THE RECORDS BY THE BANKS UNDER THE COMPULSION OF
THE REGULATIONS INVADED NO FOURTH AMENDMENT RIGHT OF ANY DEPOSITOR,
PLAINTIFFS' ATTACK ON THE RECORD KEEPING REQUIREMENTS UNDER THAT
AMENDMENT FAILS.  /24/  THAT THE BANK IN MAKING THE RECORDS REQUIRED BY
THE SECRETARY ACTS UNDER THE COMPULSION OF THE REGULATION IS CLEAR, BUT
IT IS EQUALLY CLEAR THAT IN DOING SO IT NEITHER SEARCHES NOR SEIZES
RECORDS IN WHICH THE DEPOSITOR HAS A FOURTH AMENDMENT RIGHT. 
PLAINTIFFS HAVE BRIEFED THEIR CONTENTIONS IN SUCH A WAY THAT WE CANNOT
BE ENTIRELY CERTAIN WHETHER THEIR FIFTH AMEMDMENT ATTACK IS DIRECTED
ONLY TO THE REPORTING PROVISIONS AS WELL.  TO THE EXTENT THAT IT IS
DIRECTED TO THE REGULATIONS REQUIRING THE BANKS TO KEEP RECORDS, IT IS
WITHOUT MERIT.  INCORPORATED BANKS, LIKE OTHER ORGANIZATIONS, HAVE NO
PRIVIEGE AGAINST COMPULSORY SELF-INCRIMINATION, E.G., HALE V. HENKEL,
201 U.S. 43, 74 - 75 (1906); WILSON V. UNITED STATES, 221 U.S. 361, 382
- 384 (1911); UNITED STATES V. WHITE, 322 U.S. 694, 699 (1944).  SINCE
A PARTY INCRIMINATED BY EVIDENCE PRODUCED BY A THIRD PARTY SUSTAINS NO
VIOLATION OF HIS OWN FIFTH AMENDMENT RIGHTS, JOHNSON V. UNITED STATES,
228 U.S. 457, 458 (1913); COUCH V. UNITED STATES, 409 U.S., AT 328, THE
DEPOSITOR PLAINTIFFS HERE PRESENT NO MERITORIOUS FIFTH AMENDMENT
CHALLENGE TO THE RECORDKEEPING REQUIREMENTS. 

PLAINTIFF ACLU MAKES AN ADDITIONAL CHALLENGE TO THE RECORDKEEPING
REQUIREMENTS OF TITLE I. IT ARGUES THAT THOSE PROVISIONS, AND THE
IMPLEMENTING REGULATIONS, VIOLATE ITS MEMBERS' FIRST AMENDMENT RIGHTS,
SINCE THE PROVISIONS COULD POSSIBLY BE USED TO OBTAIN THE IDENTITIES OF
ITS MEMBERS AND CONTRIBUTORS THROUGH THE EXAMINATION OF THE
ORGANIZATION'S BANK RECORDS.  THIS COURT HAS RECOGNIZED THAT AN
ORGANIZATION MAY HAVE STANDING TO ASSERT THAT CONSTITUTIONAL COMPELLED
DISCLOSURE OF THEIR MEMBERSHIP IN THE ORGANIZATION, AND THAT ABSENT A
COUNTERVAILING GOVERNMENTAL INTEREST, SUCH INFORMATION MAY NOT BE
COMPELLED.  NAACP V. ALABAMA, 357 U.S. 449 (1958).  SEE POLLARD V.
ROBERTS, 283 F. SUPP. 248 (ED ARK.), AFF'D PER CURIAM, 393 U.S. 14
(1968). 

THOSE CASES, HOWEVER, DO NOT ELICIT A PER SE RULE THAT WOULD FORBID
SUCH DISCLOSURE IN A SITUATION WHERE THE GOVERNMENTAL INTEREST WOULD
OVERRIDE THE ASSOCIATIONAL INTEREST IN MAINTAINING SUCH
CONFIDENTIALITY.  EACH OF THEM WAS LITIGATED AFTER A SUBPOENA OR
SUMMONS HAD ALREADY BEEN SERVED FOR THE RECORDS OF THE ORGANIZATION,
AND AN ACTION BROUGHT BY THE ORGANIZATION TO PREVENT THE ACTUAL
DISCLOSURE OF THE RECORDS.  /25/  NO SUCH DISCLOSURE HAS BEEN SOUGHT BY
THE GOVERNMENT HERE, AND THE ACLU'S CHALLENGE IS THEREFORE PREMATURE. 
THIS COURT, IN THE ABSENCE OF A CONCRETE FACT SITUATION IN WHICH
COMPETING ASSOCIATIONAL AND GOVERNMENTAL INTERESTS CAN BE WEIGHED, IS
SIMPLY NOT IN A POSITION TO DETERMINE WHETHER AN EFFORT TO COMPEL
DISCLOSURE OF SUCH RECORDS WOULD OR WOULD NOT BE BARRED BY CASES SUCH
AS NAACP V. ALABAMA, SUPRA.  /26/  THE THREAT TO ANY FIRST AMENDMENT
RIGHTS OF THE ACLU OR ITS MEMBERS FROM THE MERE EXISTENCE OF THE
RECORDS IN THE HANDS OF THE BANK IS A GOOD DEAL MORE REMOTE THAN THE
THREAT ASSERTEDLY POSED BY THE ARMY'S SYSTEM OF COMPILATION AND
DISTRIBUTION OF INFORMATION WHICH WE DECLINED TO ADJUDICATE IN LAIRD V.
TATUM, 408 U.S. 1 (1972). 

        IV 

WE PROCEED NOW TO ADDRESS THE CONSTITUTIONAL CHALLENGES DIRECTED AT
THE REPORTING REQUIREMENTS OF THE REGULATIONS AUTHORIZED IN TITLE II OF
THE ACT.  TITLE II AUTHORIZED THE SECRETARY TO REQUIRE REPORTING OF TWO
GENERAL CATEGORIES OF BANKING TRANSACTIONS: FOREIGN AND DOMESTIC.  THE
DISTRICT COURT UPHELD THE CONSTITUTIONALITY OF THE FOREIGN TRANSACTION
REPORTING REQUIREMENTS OF REGULATIONS ISSUED UNDER TITLE II; CERTAIN OF
THE PLAINTIFFS BELOW, APPELLANTS IN NO. 72 - 1196, HAVE APPEALED FROM
THAT PORTION OF THE DISTRICT COURT'S JUDGMENT, AND HERE RENEW THEIR
CONTENTIONS OF CONSTITUTIONAL INFIRMITY IN THE FOREIGN REPORTING
REGULATIONS BASED UPON THE FIRST, FOURTH, AND FIFTH AMENDMENTS.  THE
DISTRICT COURT INVALIDATED THE BANK SECRECY ACT INSOFAR AS IT
AUTHORIZED THE SECRETARY TO PROMULGATE REGULATIONS REQUIRING BANKS TO
REPORT DOMESTIC TRANSACTIONS INVOLVING THEIR CUSTOMERS, AND THE
GOVERNMENT IN NO. 72 - 1073 APPEALS FROM THAT PORTION OF THE DISTRICT
COURT'S JUDGMENT. 

AS NOTED ABOVE, THE REGULATIONS ISSUED BY THE SECRETARY UNDER THE
AUTHORITY OF TITLE II CONTAIN TWO ESSENTIAL REPORTING REQUIREMENTS WITH
RESPECT TO FOREIGN FINANCIAL TRANSACTION.  CHAPTER 3 OF TITLE II OF THE
ACT, 31 U.S.C., 1101 - 1105, AND THE CORRESPONDING REGULATION, 31 CFR
103.23, REQUIRE INDIVIDUALS TO REPORT TRANSPORTATION OF MONETARY
INSTRUMENTS INTO OR OUT OF THE UNITED STATES, OR RECEIPTS OF SUCH
INSTRUMENTS IN THE UNITED STATES FROM PLACES OUTSIDE THE UNITED STATES,
IF THE INSTRUMENT TRANSPORTED OR RECEIVED HAS A VALUE IN EXCESS OF
$5,000.  CHAPTER 4 OF TITLE II OF THE ACT, 31 U.S.C. 1121 - 1122, AND
THE CORRESPONDING REGULATION, 31 CFR 103.24, GENERALLY REQUIRE UNITED
STATES CITIZENS, RESIDENTS, AND BUSINESSMEN TO FILE REPORTS OF THEIR
RELATIONSHIPS WITH FOREIGN FINANCIAL INSTITUTIONS. 

THE DOMESTIC REPORTING PROVISIONS OF THE ACT AS IMPLEMENTED BY THE
REGULATIONS, IN CONTRAST TO THE FOREIGN REPORTING REQUIREMENTS, APPLY
ONLY TO BANKS AND FINANCIAL INSTITUTIONS.  IN ENACTING THE STATUTE,
CONGRESS PROVIDED IN 221, 31 U.S.C. 1081, THAT THE SECRETARY MIGHT
SPECIFY THE TYPES OF CURRENCY TRANSACTIONS WHICH SHOULD BE REPORTED: 

     "TRANSACTIONS INVOLVING ANY DOMESTIC FINANCIAL INSTITUTION

  SHALL BE REPORTED TO THE SECRETARY AT SUCH TIME, IN SUCH MANNER,

  AND IN SUCH DETAIL AS THE SECRETARY MAY REQUIRE IF THEY INVOLVE

  THE PAYMENT, RECEIPT, OR TRANSFER OF UNITED STATES CURRENCY, OR

  SUCH OTHER MONETARY INSTRUMENTS AS THE SECRETARY MAY SPECIFY, IN

  SUCH AMOUNTS, DENOMINATIONS, OR BOTH, OR UNDER SUCH

  CIRCUMSTANCES, AS THE SECRETARY SHALL BE REGULATION PRESCRIBE." 

REQUIRE SUCH REPORTS FROM THE DOMESTIC FINANCIAL INSTITUTION INVOLVED,
FROM THE PARTIES TO THE TRANSACTIONS, OR FROM BOTH.  IN EXERCISING HIS
AUTHORITY UNDER THESE SECTIONS, THE SECRETARY HAS PROMULGATED
REGULATIONS WHICH REQUIRE ONLY THAT THE FINANCIAL INSTITUTIONS MAKE THE
REPORT TO THE INTERNAL REVENUE SERVICE; HE HAS NOT REQUIRED ANY REPORT
FROM THE INDIVIDUAL PARTIES TO DOMESTIC FINANCIAL TRANSACTIONS.  /27/
THE APPLICABLE REGULATION, 31 CFR 103,22, REQUIRES THE FINANCIAL
INSTITUTION TO "FILE A REPORT OF EACH DEPOSIT, WITHDRAWAL, EXCHANGE OF
CURRENCY OR OTHER PAYMENT OR TRANSFER, BY, THROUGH, OR TO SUCH
FINANCIAL INSTITUTION, WHICH INVOLVES A TRANSACTION IN CURRENCY OF MORE
THAN $10,000."  THE REGULATION EXEMPTS SEVERAL TYPES OF CURRENCY
TRANSACTIONS FROM THIS REPORTING REQUIREMENT, INCLUDING TRANSACTIONS
"WITH AN ESTABLISHED CUSTOMER MAINTAINING A DEPOSIT RELATIONSHIP WITH
THE BANK, IN AMOUNTS WHICH THE BANK MAY REASONABLY CONCLUDE DO NOT
EXCEED AMOUNTS COMMENSURATE WITH THE CUSTOMARY CONDUCT OF THE BUSINESS,
INDUSTRY OR PROFESSION OF THE CUSTOMER CONCERNED."  IBID. 

A. FOURTH AMENDMENT CHALLENGE TO THE FOREIGN REPORTING REQUIREMENTS 

THE DISTRICT COURT, IN DEFFERENTIATING FOR CONSTITUTIONAL PURPOSES
BETWEEN THE FOREIGN REPORTING REQUIREMENTS AND THE DOMESTIC REPORTING
REQUIREMENTS IMPOSED BY THE SECRETARY, RELIED UPON OUR OPINION IN
UNITED STATES V. U.S. DISTRICT COURT, 407 U.S. 297 (1972), FOR THE
PORPOSITION THAT GOVERNMENT SURVEILLANCE IN THE AREA OF FOREIGN
RELATIONS IS IN SOME INSTANCES SUBJECT TO LESS CONSTITUTIONAL RESTRAINT
THAN WOULD BE SIMILAR ACTIVITY IN DOMESTIC AFFAIRS.  OUR ANALYSIS DOES
NOT TAKE US OVER THIS GROUND. 

THE PLENARY AUTHORITY OF CONGRESS TO REGULATE FOREIGN COMMERCE, AND
TO DELEGATE SIGNIFICANT PORTIONS OF THIS POWER TO THE EXECUTIVE, IS
WELL ESTABLISHED.  C. & S. AIR LINES V. WATERMAN CORP., 333 U.S. 103,
109 (1948); NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, 288 U.S.
294 (1933).  PLAINTIFFS CONTEND THAT IN EXERCISING THAT AUTHORITY TO
REQUIRE REPORTING OF PREVIOUSLY DESCRIBED FOREIGN FINANCIAL
TRANSACTIONS, CONGRESS AND THE SECRETARY HAVE ABRIDGED THEIR FOURTH
AMENDMENT RIGHTS. 

THE FAMILIAR LANGUAGE OF THE FOURTH AMENDMENT PROTECTS "(THE RIGHT
OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND
EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES . . . ."  SINCE A
STATUTE REQUIRING THE FILING AND SUBSEQUENT PUBLICATION OF A CORPORATE
TAX RETURN HAS BEEN UPHELD AGAINST A FOURTH AMENDMENT CHALLENGE, FLINT
V. STONE TRACY CO., 220 U.S. 107, 174 - 176 (1911), REPORTING
REQUIREMENTS ARE BY NO MEANS PER SE VIOLATIONS OF THE FOURTH
AMENDMENT.  INDEED, A CONTRARY HOLDING MIGHT WELL FLY IN THE FACE OF
THE SETTLED SIXTY-YEAR HISTORY OF SELF-ASSESSMENT OF INDIVIDUAL AND
CORPORATE INCOME TAXES IN THE UNITED STATES.  THIS COURT HAS ON
NUMEROUS OCCASIONS RECOGNIZED THE IMPORTANCE OF THE SELF-REGULATORY
ASPECTS OF THAT SYSTEM, AND INTERESTS OF THE CONGRESS IN ENFORCING IT: 

"IN ASSESSING INCOME TAXES THE GOVERNMENT RELIES PRIMARILY UPON THE
DISCLOSURE BY THE TAXPAYER OF THE RELEVANT FACTS.  THIS DISCLOSURE IT
REQUIRES HIM TO MAKE IN HIS ANNUAL RETURN.  TO ENSURE FULL AND HONEST
DISCLOSURE, TO DISCOURAGE FRAUDULENT ATTEMPTS TO EVADE THE TAX,
CONGRESS IMPOSES SANCTIONS.  SUCH SANCTIONS MAY CONFESSEDLY BE EITHER
CRIMINAL OR CIVIL."  HELVERING V. MITCHELL, 303 U.S. 391, 399 (1938). 

TO THE EXTENT THAT THE REPORTING REQUIREMENTS OF THE BANK SECRECY
ACT AND THE SETTLED PRACTICES OF THE TAX COLLECTION PROCESS ARE
SIMILAR, THIS HISTORY MUST BE OVERCOME BY THOSE WHO ARGUE THAT THE
REPORTING REQUIREMENTS ARE A VIOLATION OF THE FOURTH AMENDMENT. 
PLAINTIFFS CONTEND, HOWEVER, THAT BOYD V. UNITED STATES, 116 U.S. 616
(1886), ESTABLISHES THE INVALIDITY OF THE FOREIGN REPORTING REQUIREMENT
UNDER THE FOURTH AMENDMENT, AND THAT THE PARTICULAR REQUIREMENTS
IMPOSED ARE SO INDISCRIMINATE IN THEIR NATURE THAT THE REGULATIONS MUST
BE DEENED TO BE THE EQUIVALENT OF A GENERAL WARRANT OF THE KIND
CONDEMNED AS OBNOXIOUS TO THE FOURTH AMENDMENT IN CASES SUCH AS
STANFORD V. TEXAS, 379 U.S. 476 (1965).  WE DO NOT THINK THESE CASES
WOULD SUPPORT PLAINTIFFS EVEN IF THEIR CONTENTIONS WERE DIRECTED AT THE
DOMESTIC REPORTING REQUIREMENTS; IN LIGHT OF THE FACT THAT THE FOREIGN
REPORTING REQUIREMENTS DEAL WITH MATTERS IN FOREIGN COMMERCE, WE THINK
PLAINTIFFS' RELIANCE ON THE CASES TO CHALLENGE THOSE REQUIREMENTS MUST
FAIL. 

BOYD V. UNITED STATES, SUPRA, IS A CASE WHICH HAS BEEN THE SUBJECT
OF REPEATED CITATION, DISCUSSION, AND EXPLANATION SINCE THE TIME OF ITS
DECISION 88 YEARS AGO.  IN COMMUNIST PARTY V. SACB, 367 U.S. 1 (1961),
THE COURT DESCRIBED THE BOYD HOLDING AS FOLLOWS: 

"THE BOYD CASE INVOLVED A STATUTE PROVIDING THAT IN PROCEEDINGS
OTHER THAN CRIMINAL ARISING UNDER THE REVENUE LAWS, THE GOVERNMENT
COULD SECURE AN ORDER OF THE COURT REQUIRING THE PRODUCTION BY AN
OPPOSING CLAIMANT OR DEFENDANT OF ANY DOCUMENTS UNDER HIS CONTROL
WHICH, THE GOVERNMENT ASSERTED, MIGHT TEND TO PROVE ANY OF THE
GOVERNMENTS'S ALLEGATIONS.  IF PRODUCTION WERE NOT MADE, THE
ALLEGATIONS WERE TO BE TAKEN AS CONFESSED.  ON THE GOVERNMENT'S MOTION,
THE DISTRICT COURT HAD ENTERED SUCH AN ORDER, REQUIRING THE CLAIMANTS
IN A FORFEITURE PROCEEDING TO PRODUCE A SPECIFIED INVOICE.  ALTHOUGH
THE CLAIMANTS OBJECTED THAT THE ORDER WAS IMPROPER AND THE STATUTE
UNCONSTITUTIONAL IN COERCING SELF-INCRIMINATORY DISCLOSURES AND
PERMITTING UNREASONALBE SEARCHES AND SEIZURES, THEY DID, UNDER PROTEST,
PRODUCE THE INVOICE, WHICH WAS, AGAIN OVER THEIR CONSTITUTIONAL
OBJECTION, ADMITTED INTO EVIDENCE.  THIS COURT HELD THAT ON SUCH A
RECORD A JUDGMENT FOR THE UNITED STATES COULD NOT STAND, AND THAT THE
STATUTE WAS INVALID AS REPUGNANT TO THE FOURTH AND FIFTH AMENDMENTS." 
ID., AT 110. 

BUT THE BOYD COURT RECOGNIZED THAT THE FOURTH AMENDMENT DOES NOT
PROHIBIT ALL REQUIREMENTS THAT INFORMATION BE MADE AVAILABLE TO THE
GOVERNMENT: 

"(THE SUPERVISION ATUHTORIZED TO BE EXERCISED BY OFFICERS OF THE
REVENUE OVER THE MANUFACTURE OR CUSTODY OF EXCISABLE ARTICLES, AND THE
ENTRIES THEREOF IN BOOKS REQUIRED BY LAW TO BE KEPT FOR THEIR
INSPECTION, ARE NECESSARILY EXCEPTED OUT OF THE CATEGORY OF
UNREASONABLE SEARCHES AND SEIZURES."  BOYD V. UNITED STATES, SUPRA, AT
623 - 624. 

STANFORD V. TEXAS, SUPRA, INVOLVED A WARRANT ISSUED BY A STATE JUDGE
WHICH DESCRIBED PETITIONER'S HOME AND AUTHORIZED THE SEARCH AND SEIZURE
OF "BOOKS, RECORDS, PAMPHLETS, CARDS, RECEIPTS, LISTS, MEMORANDA,
PICTURES, RECORDINGS AND OTHER WRITTEN INSTRUMENTS CONCERNING THE
COMMUNIST PARTY OF TEXAS."  THIS COURT FOUND THE WARRANT TO BE AN
UNCONSTITUTIONAL GENERAL WARRANT, AND INVALIDATED THE SEARCH AND
SEIZURE CONDUCTED PURSUANT TO IT.  UNLIKE THE SITUATION IN STANFORD,
THE SECRETARY'S REGULATIONS DO NOT AUTHORIZE INDISCRIMINATE RUNNAGING
AMONG THE RECORDS OF THE PLAINTIFFS, NOR DO THE REPORTS THEY REQUIRE
DEAL WITH LITERARY MATERIAL AS IN STANFORD; THE INFORMATION SOUGHT IS
ABOUT COMMERCE, NOT LITERATURE.  THE REPORTS OF FOREIGN FINANCIAL
TRANSACTIONS REQUIRED BY THE REGULATIONS MUST CONTAIN INFORMATION AS TO
A RELATIVELY LIMITED GROUP OF FINANCIAL TRANSACTIONS IN FOREIGN
COMMERCE, AND ARE REASONABLY RELATED TO THE STATUTORY PURPOSE OF
ASSISTING IN THE ENFORCEMENT OF THE LAWS OF THE UNITED STATES. 

OF PRIMARY IMPORTANCE, IN ADDITION, IS THE FACT THAT THE INFORMATION
REQUIRED BY THE FOREIGN REPORTING REQUIREMENTS PERTAINS ONLY TO
COMMERCIAL TRANSACTIONS WHICH TAKE PLACE ACROSS NATIONAL BOUNDARIES. 
MR. CHIEF JUSTICE TAFT, IN HIS OPINION FOR THE COURT IN CARROLL V.
UNITED STATES, 267 U.S. 132 (1925), OBSERVED: 

"TRAVELLERS MAY BE SO STOPPED IN CROSSING AN INTERNATIONAL BOUNDARY
BECAUSE OF NATIONAL SELF PROTECTION REASONABLY REQUIRING ONE ENTERING
THE COUNTRY TO IDENTIFY HIMSELF AS ENTITLED TO COME IN, AND HIS
BELONGINGS AS EFFECTS WHICH MAY BE LAWFULLY BROUGHT IN."  ID., AT 154. 
THIS SETTLED PROPOSITION HAS BEEN REAFFIRMED AS RECENTLY AS LAST TERM
IN ALMEIDA-SANCHEZ V. UNITED STATES, 413 U.S. 266, 272 (1973).  IF
REPORTING OF INCOME MAY BE REQUIRED AS AN AID TO ENFORCEMENT OF THE
FEDERAL REVENUE STATUTES, AND IF THOSE ENTERING AND LEAVING THE COUNTRY
MAY BE EXAMINED AS TO THEIR BELONGINGS AND EFFECTS, ALL WITHOUT
VIOLATING THE FOURTH AMENDMENT, WE SEE NO REASON TO INVALIDATE THE
SECRETARY'S REGULATIONS HERE.  THE STATUTORY AUTHORIZATION FOR THE
REGULATIONS WAS BASED UPON A CONCLUSION BY CONGRESS THAT INTERNATIONAL
CURRENCY TRANSACTIONS AND FOREIGN FINANCIAL INSTITUTIONS WERE BEING
USED BY RESIDENTS OF THE UNITED STATES TO CIRCUMVENT THE ENFORCEMENT OF
THE LAWS OF THE UNITED STATES.  THE REGULATIONS ARE SUFFICIENTLY
TAILORED SO AS TO SINGLE OUT TRANSACTIONS FOUND TO HAVE THE GREATEST
POTENTIAL FOR SUCH CIRCUMVENTION AND WHICH INVOLVE SUBSTANTIAL AMOUNTS
OF MONEY.  THEY ARE THEREFORE REASONABLE IN THE LIGHT OF THAT STATUTORY
PURPOSE, AND CONSISTENT WITH THE FOURTH AMENDMENT. 

B. FOURTH AMENDMENT CHALLENGE TO THE DOMESTIC REPORTING
REQUIREMENTS 

THE DISTRICT COURT EXAMINED THE DOMESTIC REPORTING REQUIREMENTS
IMPOSED ON PLAINTIFFS BY LOOKING TO THE BROAD AUTHORIZATION OF THE ACT
ITSELF, WITHOUT SPECIFIC REFERENCE TO THE REGULATIONS PROMULGATED UNDER
ITS AUTHORITY.  THE DISTRICT COURT OBSERVED: 

"(ALTHOUGH TO DATE THE SECRETARY HAS REQUIRED REPORTING ONLY BY THE
FINANCIAL INSTITUTIONS AND THEN ONLY OF CURRENCY TRANSACTIONS OVER
$10,000, HE IS EMPOWERED BY THE ACT, AS INDICATED ABOVE, TO REQUIRE, IF
HE SO DECIDES, REPORTING NOT ONLY BY THE FINANCIAL INSTITUTION, BUT
ALSO BY OTHER PARTIES TO OR PARTICIPANTS IN TRANSACTION WITH THE
INSTITUTIONS AND, FURTHER, THAT THE SECRETARY MAY REQUIRE REPORTS, NOT
ONLY OF CURRENCY TRANSACTIONS BUT OF ANY TRANSACTION INVOLVING ANY
MONETARY INSTRUMENT--AND IN ANY AMOUNT--LARGE OR SMALL."  347 F. SUPP.,
AT 1246  

THE DISTRICT COURT WENT ON TO POSE, AS THE QUESTION TO BE RESOLVED,
WHETHER "THESE PROVISIONS, BROADLY AUTHORIZING AN EXECUTIVE AGENCY OF
GOVERMENT TO REQUIRE FINANCIAL INSTITUTIONS AND PARTIES (THERETO) . . .
TO ROUTINELY REPORT . . . THE DETAIL OF ALMOST EVERY CONCEIVABLE
FINANCIAL TRANSACTION . . . (ARE) SUCH AN INVASION OF A CITIZEN'S RIGHT
OF PRIVACY AS AMOUNTS TO AN UNREASONABLE SEARCH WITHIN THE MEANING OF
THE FOURTH AMENDMENT."  IBID. 

SINCE, AS WE HAVE OBSERVED EARLIER IN THIS OPINION, THE STATUTE IS
NOT SELF-EXECUTING, AND WERE THE SECRETARY TO TAKE NO ACTION WHATEVER
UNDER HIS AUTHORITY THERE WOULD BE NO POSSIBILITY OF CRIMINAL OR CIVIL
SANCTIONS BEING IMPOSED ON ANYONE, THE DISTRICT COURT WAS WRONG IN
FRAMING THE QUESTION IN THIS MANNER.  THE QUESTION IS NOT WHAT SORT OF
REPORTING REQUIREMENTS MIGHT HAVE BEEN IMPOSED BY THE SECRETARY UNDER
THE BROAD AUTHORITY GIVEN HIM IN THE ACT, BUT RATHER WHAT SORT OF
REPORTING REQUIREMENTS DID HE IN FACT IMPOSE UNDER THAT AUTHORITY. 

"EVEN WHERE SOME OF THE PROVISIONS OF A COMPREHENSIVE LEGISLATIVE
ENACTMENT ARE RIPE FOR ADJUDICATION, PORTIONS OF THE ENACTMENT NOT
IMMEDIATELY INVOLVED ARE NOT THEREBY THROWN OPEN FOR A JUDICIAL
DETERMINATION OF CONSTITUTIONALITY.  'PASSING UPON THE POSSIBLE
SIGNIFICANCE OF THE MANIFOLD PROVISIONS OF A BROAD STATUTE IN ADVANCE
OF EFFORTS TO APPLY THE SEPARATE PROVISIONS IN ANALOGOUS TO RENDERING
AN ADVISORY OPINION UPON A STATUTE OR A DECLARATORY JUDGMENT UPON A
HYPOTHETICAL CASE.'  WATSON V. BUCK, 313 U.S. 387, 402."  COMMUNIST
PARTY V. SACB, 367 U.S., AT 71.  THE QUESTION FOR DECISION, THEREFORE,
IS WHETHER THE REGULATIONS RELATING TO THE REPORTING OF DOMISTIC
TRANSACTIONS, VIOLATIONS OF WHICH COULD SUBJECT THOSE REQUIRED TO
REPORT TO CIVIL OR CRIMINAL PENALTIES, INVADE ANY FOURTH AMENDMENT
RIGHT OF THOSE REQUIRED TO REPORT.  TO THAT QUESTION WE NOW TURN. 

THE REGULATIONS ISSUED BY THE SECRETARY REQUIRE THE REPORTING OF
DOMESTIC FINANCIAL TRANSACTION ONLY BY FINANCIAL INSTITUTIONS.  UNITED
STATES V. MORTON SALT CO., 338 U.S. 632 (1950), HELD THAT ORGANIZATIONS
ENGAGED IN COMMERCE COULD BE REQUIRED BY THE GOVERNMENT TO FILE REPORTS
DEALING WITH PARTICULAR PHASES OF THEIR ACTIVITIES.  THE LANGUAGE USED
BY THE COURT IN THAT CASE IS INSTRUCTIVE: 

     "IT IS UNNECESSARY HERE TO EXAMINE THE QUESTION OF WHETHER A

  CORPORATION IS ENTITLED TO THE PROTECTION OF THE FOURTH

  AMENDMENT.  CF. OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327

  U.S. 186.  ALTHOUGH THE 'RIGHT TO BE LET ALONE--THE MOST

  COMPREHENSIVE OF RIGHTS AND THE RIGHT MOST VALUED BY CIVILIZED

  MEN,'  BRANDEIS, J., DISSENTING IN OLMSTEAD V. UNITED STATES, 277

U.S. 438, 471, AT 478, IS NOT CONFINED LITERALLY TO SEARCHES AND

  SEIZURES AS SUCH, BUT EXTENDS AS WELL TO THE ORDERLY TAKING UNDER

  COMPULSION OF PROCESS, BOYD V. UNITED STATES, 116 U.S. 616, HALE

  V. HENKEL, 201 U.S. 43, 70, NEITHER INCORPORATED NOR

  UNINCORPORATED ASSOCIATIONS CAN PLEAD AN UNQUALIFIED RIGHT TO

  CONDUCT THEIR AFFAIRS IN SECRET.  HALE V. HENKEL, SUPRA; UNITED

  STATES V. WHITE, 322 U.S. 694. 

     "WHILE THEY MAY AND SHOULD HAVE PROTECTION FROM UNLAWFUL

  DEMANDS MADE IN THE NAME OF PUBLIC INVESTIGATION, CF. FEDERAL

  TRADE COMM'N V. AMERICAN TOBACCO CO., 264 U.S. 298, CORPORATIONS

  CAN CLAIM NO EQUALITY WITH INDIVIDUALS IN THE ENJOYMENT OF A

  RIGHT TO PRIVACY.  CF. UNITED STATES V. WHITE, SUPRA.  THEY ARE

  ENDOWED WITH PUBLIC ATTRIBUTES.  THEY HAVE A COLLECTIVE IMPACT

  UPON SOCIETY, FROM WHICH THEY DERIVE THE PRIVILEGE OF ACTING AS

ARTIFICIAL ENTITIES.  THE FEDERAL GOVERNMENT ALLOWS THEM THE

  PRIVILEGE OF ENGAGING IN INTERSTATE COMMERCE.  FAVORS FROM

  GOVERNMENT OFTEN CARRY WITH THEM AN ENHANCED MEASURE OF

  REGULATION.  (CITATIONS OMITTED.)  EVEN IF ONE WERE TO REGARD THE

  REQUEST FOR INFORMATION IN THIS CASE AS CAUSED BY NOTHING MORE

  THAN OFFICIAL CURIOSITY, NEVERTHELESS LAWENFORCING AGENCIES HAVE

  A LEGITIMATE RIGHT TO SATISFY THEMSELVES THAT CORPORATE BEHAVIOR

  IS CONSISTENT WITH THE LAW AND THE PUBLIC INTEREST."  338 U.S.,

  AT 651 - 652. 

WE HAVE NO DIFFICUTLY THEN IN DETERMINING THAT THE SECRETARY'S
REQUIREMENTS FOR THE REPORTING OF DOMESTIC FINANCIAL TRANSACTIONS
ABRIDGE NO FOURTH AMENDMENT RIGHT OF THE BANKS THEMSELVES.  THE BANK IS
NOT A MERE STRANGER OR BYSTANDER WITH RESPECT TO THE TRANSACTIONS WHICH
IT IS REQUIRED TO RECORD OR REPORT.  THE BANK IS ITSELF A PARTY TO EACH
OF THESE TRANSACTIONS, EARNS PORTIONS OF ITS INCOME FROM CONDUCTING
SUCH TRANSACTIONS, AND IN THE PAST MAY HAVE KEPT RECORDS OF SIMILAR
TRANSACTIONS ON A VOLUNTARY BASIS FOR ITS OWN PURPOSES.  SEE UNITED
STATES V. BISWELL, 406 U.S., AT 316.  THE REGULATIONS PRESENTLY IN
EFFECT GOVERNING THE REPORTING OF DOMESTIC CURRENCY TRANSACTIONS
REQUIRE INFORMATION AS TO THE PERSONAL AND BUSINESS IDENTITY OF THE
PERSON CONDUCTING THE TRANSACTION AND OF THE PERSON OR ORGANIZATION FOR
WHOM IT WAS CONDUCTED, AS WELL AS A SUMMARY DESCRIPTION OF THE NATURE
OF THE TRANSACTION.  IT IS CONCEIVABLE, AND PERHAPS LIKELY, THAT THE
BANK MIGHT NOT OF ITS OWN VOLITION COMPILE THIS AMOUNT OF DETAIL FOR
ITS OWN PURPOSES, AND THEREFORE TO THAT EXTENT THE REGULATIONS PUT THE
BANK IN THE POSITION OF SEEKING INFORMATION FROM THE CUSTOMER IN ORDER
TO EVENTUALLY REPORT IT TO THE GOVERNMENT.  BUT AS WE HAVE NOTED ABOVE,
"NEITHER INCORPORATED NOR UNINCORPORATED ASSOCIATIONS CAN PLEAD AN
UNQUALIFIED RIGHT TO CONDUCT THEIR AFFAIRS IN SECRET."  UNITED STATES
V. MORTON SALT CO., SUPRA, AT 652. 

THE REGULATIONS DO NOT IMPOSE UNREASONABLE REPORTING REQUIREMENTS ON
THE BANKS.  THE REGULATIONS REQUIRE THE REPORTING OF INFORMATION WITH
RESPECT TO ABNORMALLY LARGE TRANSACTIONS IN CURRENCY, MUCH OF WHICH
INFORMATION THE BANK AS A PARTY TO THE TRANSACTION ALREADY POSSESSES OR
WOULD ACQUIRE IN ITS OWN INTEREST.  TO THE EXTENT THAT THE REGULATIONS
IN CONNECTION WITH SUCH TRANSACTIONS REQUIRE THE BANK TO OBTAIN
INFORMATION FROM A CUSTOMER SIMPLY BECAUSE THE GOVERNMENT WANTS IT, THE
INFORMATION IS SUFFICIENTLY DESCRIBED AND LIMITED IN NATURE, AND
SUFFICIENTLY RELATED TO A TENABLE CONGRESSIONAL DETERMINATION AS TO
IMPROPER USE OF TRANSACTIONS OF THAT TYPE IN INTERSTATE COMMERCE, SO AS
TO WITHSTAND THE FOURTH AMENDMENT CHALLENGE MADE BY THE BANK
PLAINTIFFS.  "(THE INQUIRY IS WITHIN THE AUTHORITY OF THE AGENCY, THE
DEMAND IS NOT TOO INDEFINITE AND THE INFORMATION SOUGHT IS REASONABLY
RELEVANT.  'THE GIST OF THE PROTECTION IS IN THE REQUIREMENT, EXPRESSED
IN TERMS, THAT THE DISCLOSURE SOUGHT SHALL NOT BE UNREASONABLE.'" 
UNITED STATES V. MORTON SALT CO., SUPRA, AT 652 - 653; SEE OKLAHOMA
PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186, 208 (1946). 

IN ADDITION TO THE FOURTH AMENDMENT CHALLENGE TO THE DOMESTIC
REPORTING REQUIREMENTS MADE BY THE BANK PLAINTIFFS, WE ARE FACED WITH A
SIMILAR CHALLENGE BY THE DEPOSITOR PLAINTIFFS, WHO CONTEND THAT SINCE
THE REPORTS OF DOMESTIC TRANSACTIONS WHICH THE BANK IS REQUIRED TO MAKE
WILL INCLUDE TRANSACTIONS TO WHICH THE DEPOSITORS WERE PARTIES, THE
REQUIREMENT THAT THE BANK MAKE A REPORT OF THE TRANSACTION VIOLATES THE
FOURTH AMENDMENT REGHTS OF THE DEPOSITOR.  THE COMPLAINT FILED IN THE
DISTRICT COURT BY THE ACLU AND THE DEPOSITORS CONTAINS NO ALLEGATION BY
ANY OF THE INDIVIDUAL DEPOSITORS THAT THEY WERE ENGAGED IN THE TYPE OF
$10,000 DOMESTIC CURRENCY TRANSACTION WHICH WOULD NECESSITATE THAT
THEIR BANK REPORT IT TO THE GOVERNMENT.  THIS IS NOT A SITUTATION WHERE
THERE MIGHT HAVE BEEN A MERE OVERSIGHT IN THE SPECIFICITY OF THE
PLEADINGS AND WHERE THIS COURT COULD PROPERLY INFER THAT PARTICIPATION
IN SUCH A TRANSACTION WAS NECESSARILY FINFERRED FROM THE FACT THAT THE
INDIVIDUAL PLAINTIFFS ALLEGE THAT THEY ARE IN FACT "DEPOSITORS."  SUCH
AN INFERENCE CAN BE MADE, FOR EXAMPLE, AS TO THE BANKS TO KEEP VARIOUS
RECORDS OF CERTAIN TRANSACTIONS BY CHECK; AS OUR DISCUSSION OF THE
CHALLENGES BY THE INDIVIDUAL DEPOSITORS TO THE RECORDKEEPING
PROVISIONS, SINCE ANY DEPOSITOR WOULD TO SOME DEGREE BE AFFECTED BY
THEM.  HERE, HOWEVER, WE SIMPLY CANNOT ASSUME THAT THE MERE FACT THAT
ONE IS A DEPOSITOR IN A BANK MEANS THAT HE HAS ENGAGED OR WILL ENGAGE
IN A TRANSACTION INVOLVING MORE THAN $10,000 IN CURRENCY, WHICH IS THE
ONLY TYPE OF DOMESTIC TRANSACTION WHICH THE SECRETARY'S REGULATIONS
REQUIRE THAT THE BANKS REPORT.  THAT BEING SO, THE DEPOSITOR PLAINTIFFS
LACK STANDING TO CHALLENGE THE DOMESTIC REPORTING REGULATIONS, SINCE
THEY DO NOT SHOW THAT THEIR TRANSACTIONS ARE REQUIRED TO BE REPORTED. 
/28/ 

"PLAINTIFFS IN THE FEDERAL COURTS 'MUST ALLEGE SOME THREATENED OR
ACTUAL INJURY RESULTING FROM THE PUTATIVELY ILLEGAL ACTION BEFORE A
FEDERAL COURT MAY ASSUME JURISDICTION.'  LINDA R.S. V. RICHARD D., 410
U.S. 614, 617 (1973).  THERE MUST BE A 'PERSONAL STAKE IN THE OUTCOME'
SUCH AS TO 'ASSURE THAT CONCRETE ADVERSENESS WHICH SHARPENS THE
PRESENTATION OF ISSUES UPON WHICH THE COURT SO LARGELY DEPENDS FOR
ILLUMINATION OF DIFFICULT CONSTITUTIONAL QUESTIONS.'  BAKER V. CARR,
369 U.S. 186, 204 (1962).  . . . ABSTRACT UNJURY IS NOT ENOUGH.  IT
MUST BE ALLEGED THAT THE PLAINTIFF 'HAS SUSTAINED OR IS IMMEDIATELY IN
DANGER OF SUSTAINING SOME DIRECT INJURY' AS THE RESULT OF THE
CHALLENGED STATUTE OR OFFICIAL CONDUCT.  MASSACHUSETTS V. MELLON, 262
U.S. 447, 488 (1923).  THE INJURY OR THREAT OF INJURY MUST BE BOTH
'REAL AND IMMEDIATE,' NOT 'CONJECTURAL' OR 'HYPOTHETICAL.'  GOLDEN V.
ZWICKLER, 394 U.S. 103, 109 - 110 (1969); MARYLAND CASUALTY CO. V.
PACIFIC COAL & OIL CO., 312 U.S. 270, 273 (1941); UNITED PUBLIC WORKERS
V. MITCHELL, 330 U.S. 75,81 - 91 (1947)."  O'SHEA V. LITTLETON, 414
U.S. 488, 493 - 494 (1974) (FOOTNOTE OMITTED). 

WE THEREFORE HOLD THAT THE FOURTH AMENDMENT CLAIMS OF THE DEPOSITOR
PLAINTIFFS MAY NOT BE CONSIDERED ON THE RECORD BEFORE US.  NOR DO WE
THINK THAT THE CALIFORNIA BANKERS ASSOCAITION OR THE SECURITY NATIONAL
BANK CAN VICARIOUSLY ASSERT SUCH FOURTH AMENDMENT CLAIMS ON BEHALF OF
BANK CUSTOMERS IN GENERAL. 

THE REGULATIONS PROMULGATED BY THE SECRETARY REQUIRE THAT A REPORT
CONCERNING A DOMESTIC CURRENCY TRANSACTION INVOLVING MORE THAN $10,000
BE FILED ONLY BY THE FINANCIAL INSTITUTION WHICH IS A PARTY TO THE
TRANSACTION; THE REGULATIONS DO NOT REQUIRE A REPORT FROM THE
CUSTOMER.  31 CFR 103.22; SEE 31 U.S.C. 1082.  BOTH THE BANK AND
DEPOSITOR PLAINTIFFS HERE ARGUE THAT THE REGULATIONS ARE
CONSTITUTIONALLY DEFECTIVE BECAUSE THEY DO NOT REQUIRE THE FINANCIAL
INSTITUTION TO NOTIFY THE CUSTOMER THAT A REPORT WILL BE FILED
CONCERNING THE DOMESTIC CURRENCY TTANSACTION.  SINCE WE HAVE HELD THAT
THE DEPOSITOR PLAINTIFFS HAVE NOT MADE A SUFFICIENT SHOWING OF INJURY
TO MAKE A CONSTITUTIONAL CHALLENGE TO THE DOMESTIC REPORTING
REQUIREMENTS, WE DO NOT ADDRESS OURSELVES TO THE NECESSITY OF NOTICE OF
THOSE BANK CUSTOMERS WHOSE TRANSACTIONS MUST BE REPORTED.  THE FACT
THAT THE REGULATIONS DO NOT REQUIRE THE BANKS TO NOTIFY THE CUSTOMER OF
THE REPORT VIOLATES NO CONSTITUTIONAL RIGHT OF THE BANKS, AND THE BANKS
IN ANY EVENT ARE LEFT FREE TO ADOPT WHATEVER CUSTOMER NOTIFICATION
PROCEDURES THEY DESIRE.  /29/ 

C. FIFTH AMENDMENT CHALLENGE TO THE FOREIGN AND DOMESTIC REPORTING
REQUIREMENTS 

THE DISTRICT COURT REJCTED THE DEPOSITOR PLAINTIFFS'  CLAIM THAT THE
FOREIGN REPORTING REQUIREMENTS VIOLATED THE DEPOISTORS' FIFTH AMENDMENT
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION, AND FOUND IT
UNNECESSARY TO CONSIDER THE SIMILARLY BASED CHALLENGE TO THE DOMESTIC
REPORTING REQUIREMENTS SINCE THE LATTER WERE FOUND TO BE IN VIOLATION
OF THE FOURTH AMENDMENT.  THE APPEAL OF THE DEPOSITOR PLAINTIFFS IN NO.
72 - 1196 CHALLENGES THE FOREIGN REPORTING REQUIREMENTS UNDER THE FIFTH
AMENDMENT, AND THEIR BRIEF LIKEWISE CHALLENGES THE DOMESTIC REPORTING
REQUIREMENTS AS VIOLATIVE OF THAT AMENDMENT.  SINCE THEY ARE FREE TO
URGE IN THIS COURT REASONS FOR AFFIRMING THE JUDGMENT OF THE DISTRICT
COURT WHICH MAY NOT HAVE BEEN RELIED UPON BY THE DISTRICT COURT, WE
CONSIDER HERE THE FIFTH AMENDMENT OBJECTIONS TO BOTH THE FOREIGN AND
THE DOMESTIC REPORTING REQUIREMENTS.     AS WE NOTED ABOVE, THE BANK
PLAINTIFFS, BEING CORPORATIONS, HAVE NO CONSTITUTIONAL PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION BY VIRTUE OF THE FIFTH
AMENDMENT.  HALE V. HENKEL, 201 U.S. 43 (1906).  THEIR BRIEF URGES THAT
THEY MAY VICARIOUSLY ASSERT FIFTH AMENDMENT CLAIMS ON BEHALF OF THEIR
DEPOSITORS.  BUT SINCE WE HOLD INFRA THAT THOSE DEPOSITOR PLAINTIFFS
WHO ARE ACTUALLY PARTIES IN THIS LITIGATION ARE PREMATURE IN ASSERTING
ANY FIFTH AMENDMENT CLAIMS, WE DO NOT BELIEVE THAT THE BANKS UNDER
THESE CIRCUMSTANCES HAVE STANDING TO ASSERT FIFTH AMENDMENT CLAIMS ON
BEHALF OF CUSTOMERS IN GENERAL. 

THE INDIVIDUAL DEPOSITOR PLAINTIFFS BELOW MADE VARIOUS ALLEGATIONS
IN THE COMPLAINT AND AFFIDAVITS FILED IN THE DISTRICT COURT.  PLAINTIFF
STARK ALLEGED THAT HE WAS, IN ADDITION TO BEING PRESIDENT OF PLAINTIFF
SECURITY NATIONAL BANK, A CUSTOMER OF AND DEPOSITOR IN THE BANK. 
PLAINTIFF MARSON ALLEGED THAT HE WAS A CUSTOMER OF AND DEPOSTIOR IN THE
BANK OF AMERICA.  PLAINTIFF LIEBERMAN ALLEGED THAT HE HAD REPEATEDLY IN
THE RECENT PAST TRANSPORTED OR SHIPPED ONE OR MORE MONETARY INSTRUMENTS
EXCEEDING $5,000 IN VALUE FROM THE UNITED STATES TO PLACES OUTSIDE THE
UNITED STATES, AND EXPECTED TO DO LIKEWISE IN THE NEAR FUTURE. 
PLAINTIFFS LIEBERMAN, HARWOOD, BRUER, AND DURELL EACH ALLEGED THAT THEY
MAINTAINED A FINANCIAL INTEREST IN AND SIGNATURE AUTHORITY OVER ONE OR
MORE BANK ACCOUNTS IN FOREIGN COUNTRIES.  THIS, SO FAR AS WE CAN
ASCERTAIN FROM THE RECORD, IS THE SUM AND SUBSTANCE OF THE DEPOSTITORS'
ALLEGATIONS OF FACT UPON WHICH THEY SEEK TO MOUNT AN ATTACK ON THE
REPORTING REQUIREMENTS OF REGULATIONS AS VIOLATIVE OF THE PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION GRANTED TO EACH OF THEM BY THE
FIFTH AMENDMENT. 

CONSIDERING FIRST THE CHALLENGE OF THE DEPOSITOR PLAINTIFFS TO THE
FOREIGN REPORTING REQUIREMENTS, WE HOLD THAT SUCH CLAIMS ARE
PREMATURE.  IN UNITED STATES V. SULLIVAN, 274 U.S. 259 (1927), THIS
COURT REVIEWED A JUDGMENT OF THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT, 15 F.2D 809 (1926), WHICH HAD HELD THAT THE FIFTH AMENDMENT
PROCTECTED THE RESPONDENT FROM BEING PUNISHED FOR FAILURE TO FILE AN
INCOME TAX RETURN.  THIS COURT REVERSED THE DECISION BELOW, STATING: 

     "AS THE DEFENDANT'S INCOME WAS TAXED, THE STATUTE OF COURSE

  REQUIRED A RETURN.  SEE UNITED STATES V. SISCHO, 262 U.S. 165. 

  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.  WE ARE NOT CALLED ON TO DECIDE WHAT, IF

  ANYTHING, HE MIGHT HAVE WITHHELD.  MOST OF THE ITEMS WARRANTED NO

  COMPLAINT.  IT WOULD BE AN EXTREME IF NOT AN EXTRAVAGANT

  APPLICATION OF THE FIFTH AMENDMENT TO SAY THAT IT AUTHORIZED A

  MAN TO REFUSE TO STATE THE AMOUNT OF HIS INCOME BECAUSE IT HAD

  BEEN MADE IN CRIME.  BUT IF THE DEFENDANT DESIRED TO TEST THAT OR

  ANY OTHER POINT HE SHOULD HAVE TESTED IT IN THE RETURN SO THAT IT

  COULD BE PASSED UPON.  HE COULD NOT DRAW A CONJURER'S CIRCLE

  AROUND THE WHOLE MATTER BY HIS OWN DECLARATION THAT TO WRITE ANY

  WORD UPON THE GOVERNMENT BLANK WOULD BRING HIM INTO DANGER OF THE

  LAW."  274 U.S., AT 263 - 264. 

HERE THE DEPOSITOR PLAINTIFFS ALLEGE THAT THEY INTEND TO ENGAGE IN
FOREIGN CURRENCY TRANSACTIONS OR DEALINGS WITH FOREIGN BANKS WHICH THE
SECRETARY'S REGULATIONS WILL REQUIRE THEM TO REPORT, BUT THEY MAKE NO
ADDITIONAL ALLEGATION THAT ANY OF THE INFORMATION REQUIRED BY THE
SECRETARY WILL TEND TO INCRIMINATE THEM.  IT WILL BE TIME ENOUGH FOR US
TO DETERMINE WHAT, IF ANY, RELIEF FROM THE REPORTING REQUIREMENT THEY
MAY OBTAIN IN A JUDICIAL PROCEEDING WHEN THEY HAVE PROPERLY AND
SPECIFICALLY RAISED A CLAIM OF PRIVILEGE WITH RESPECT TO PARTICULAR
ITEMS OF INFORMATION REQUIRED BY THE SECRETARY, AND THE SECRETARY HAS
OVERRULED THEIR CLAIM OF PRIVILEGE.  THE POSTURE OF PLAINTIFFS' FIFTH
AMENDMENT RIGHTS HERE IS STRIKINGLY SIMILAR TO THOSE ASSERTED IN
COMMUNIST PARTY V. SACB, 367 U.S., AT 105 - 110.  THE COMMUNIST PARTY
THERE SOUGHT TO ASSERT THE FIFTH AMENDMENT CLAIMS OF ITS OFFICERS AS A
DEFENSE TO THE REGISTRATION REQUIREMENT OF THE SUBVERSIVE ACTIVITIES
CONTROL ACT, ALTHOUGH THE OFFICERS WERE NOT AT THAT STAGE OF THE
PROCEEDING REQUIRED BY THE ACT TO REGISTER, AND HAD NEITHER REGISTERED
NOR REFUSED TO REGISTER ON THE GROUND THAT REGISTRATION MIGHT
INCRIMINATE THEM.  THE COURT SAID: 

"IF A CLAIM OF PRIVILEGE IS MADE, IT MAY OR MAY NOT BE HONORED BY
THE ATTORNEY GENERAL.  WE CANNOT, ON THE BASIS OF SUPPOSITION THAT
PRIVILEGE WILL BE CLAIMED AND NOT HONORED, PROCEED NOW TO ADJUDICATE
THE CONSTITUTIONALITY UNDER THE FIFTH AMENDMENT OF THE REGISTRATION
PROVISIONS.  WHATEVER PROCEEDING MAY BE TAKEN AFTER AND IF THE
PRIVILEGE IS CLAIMED WILL PROVIDE AN ADEQUATE FORUM FOR LITIGATION OF
THAT ISSUE."  ID., AT 107. 

PLAINTIFFS ARGUE THAT CASES SUCH AS ALBERTSON V. SACB, 382 U.S. 70
(1965), HAVE RELAXED THE REQUIREMENTS OF EARLIER CASES, BUT WE DO NOT
FIND THAT CONTENTION SUPPORTED BY THE LANGUAGE OR HOLDING OF THAT
CASE.  THERE THE ATTORNEY GENERAL HAD PETITIONED FOR AND OBTAINED AN
ORDER FROM THE SUBVERSIVE ACTIVITIES CONTROL BOARD COMPELLING CERTAIN
NAMED MEMBERS OF THE COMMUNIST PARTY TO REGISTER THEIR AFFILIATION.  IN
RESPONSE TO THE ATTORNEY GENERAL'S PETITIONS, BOTH BEFORE THE BOARD AND
IN SUBSEQUENT JUDICIAL PROCEEDINGS, THE COMMUNIST PARTY MEMBERS HAD
ASSERTED THE PRIVILEGE AGAINST SELF-INCRIMINATION, AND THEIR CLAIMS HAD
BEEN REJECTED BY THE ATTORNEY GENERAL.  A PREVIOUS DECISION OF THIS
COURT HAD HELD THAT AN AFFIRMATIVE ANSWER TO THE INQUIRY AS TO
MEMBERSHIP IN THE COMMUNIST PARTY WAS AN INCRIMINATING ADMISSION
PROTECTED UNDER THE FIFTH AMENDMENT.  BLAU V. UNITED STATES, 340 U.S.
159 (1950).  THE DIFFERENCES THEN BETWEEN THE POSTURE OF THE DEPOSITOR
PLAINTIFFS IN THIS CASE AND THAT OF PETITIONER IN ALBERTSON V. SACB,
SUPRA, ARE EVIDENT. 

WE SIMILARLY THINK THAT THE DEPOSITOR PLAINTIFFS' CHALLENGES TO THE
DOMESTIC REPORTING REQUIREMENTS ARE PREMATURE.  AS WE NOTED ABOVE, IT
IS NOT APPARENT FROM THE ALLEGATIONS OF THE COMPLAINTS IN THESE ACTIONS
THAT ANY OF THE DEPOSITOR PLAINTIFFS WOULD BE ENGAGED IN $10,000
DOMESTIC TRANSACTIONS WITH THE BANK WHICH THE LATTER QOULD BE REQUIRED
TO REPORT UNDER THE SECRETARY'S REGULATIONS PERTAINING TO SUCH DOMESTIC
TRANSACTIONS.  NOT ONLY IS THERE NO ALLEGATION THAT ANY DEPOSITOR
ENGAGED IN SUCH TRANSACTIONS, BUT THERE IS NO ALLEGATION IN THE
COMPLAINT THAT ANY REPORT WHICH SUCH A BANK WAS REQUIRED TO MAKE WOULD
CONTAIN INFORMATION INCRIMINATING ANY DEPOSITOR.  TO WHAT EXTENT, IF
ANY, DEPOSITORS MAY CLAIM A PRIVILEGE ARISING FROM THE FIFTH AMENDMENT
BY REASON OF THE OBLIGATION OF THE BANK TO REPORT SUCH A TRANSACTION
MAY BE LEFT FOR RESLOUTION WHEN THE CLAIM OF PRIVILEGE IS PROPERLY
ASSERTED. 

DEPOSITOR PLAINTIFFS RELY ON MARCHETTE V. UNITED STATES, 390 U.S. 39
(1968), GROSSO V. UNITED STATES, 390 U.S. 62 (1968), AND HAYNES V.
UNITED STATES, 390 U.S. 85 (1968), AS SUPPORTING THE MERITS OF THEIR
FIFTH AMENDMENT CLAIM.  IN EACH OF THOSE CASES, HOWEVER, A CLAIM OF
PRIVILEGE WAS ASSERTED AS A DEFENSE TO THE REQUIREMENT OF REPORTING
PARTICULAR INFORMATION REQUIRED BY THE LAW UNDER CHALLENGE, AND THOSE
DECISIONS THEREFORE IN NO WAY MILITATE AGAINST OUR CONCLUSION THAT
DEPOSITOR PLAINTIFFS' EFFORTS TO LITIGATE THE FIFTH AMENDMENT ISSUE AT
THIS TIME ARE PREMATURE. 

D. PLAINTIFF ACLU'S FIRST AMENDMENT CHALLENGE TO THE FOREIGN AND
DOMESTIC REPORTING REQUIREMENTS 

THE ACLU CLAIMS THAT THE REPORTING REQUIREMENTS WITH RESPECT TO
FOREIGN AND DOMESTIC TRANSACTIONS INVADE ITS ASSOCIATIONAL INTERESTS
PROTECTED BY THE FIRST AMENDMENT.  WE HAVE EARLIER HELD A SIMILAR CLAIM
BY THIS ORGANIZATION TO BE SPECULATIVE AND HYPOTHETICAL WHEN ADDRESSED
TO THE RECORDKEEPING REQUIREMENTS IMPOSED BY THE SECRETARY.  SUPRA, AT
55 - 57.  THE REQUIREMENT THAT PARTICULAR TRANSACTIONS BE REPORTED TO
THE GOVERNMENT, RATHER THAN THAT RECORDS OF THEM BE AVAILABLE THROUGH
NORMAL LEGAL PROCESS, REMOVES PART OF THE SPECULATIVE QUALITY OF THE
CLAIM.  BUT THE ONLY ALLEGATION FOUND IN THE COMPLAINTS WITH RESPECT TO
THE FINANCIAL ACTIVITIES OF THE ACLU STATES THAT IT MANITAINS ACCOUNTS
AT ONE OF THE SAN FRANCISCO OFFICERS OF THE WELLS FARGO BANK & TRUST
COMPANY.  THERE IS NO ALLEGATION THAT THE ACLU ENGAGES WITH ANY
REGULARITY IN ABNORMALLY LARGE DOMESTIC CURRENCY TRANSACTIONS,
TRANSPORTS OR RECEIVES MONETARY INSTRUMENTS FROM CHANNELS OF FOREIGN
COMMERCE, OR MAINTAINS ACCOUNTS IN FINANCIAL INSTITUTIONS IN FOREIGN
COUNTRIES.  UNTIL THERE IS SOME SHOWING THAT THE REPORTING REQUIREMENTS
CONTAINED IN THE SECRETARY'S REGULATIONS WOULD REQUIRE THE REPORTING OF
INFORMATION WITH RESPECT TO THE ORGANIZATION'S FINANCIAL ACTIVITIES, NO
CONCRETE CONTROVERSY IS PRESENTED TO THIS COURT FOR ADJUDICATION. 
O'SHEA V. LITTLETON, 414 U.S., AT 493 - 494. 

        V 

ALL OF THE BANK AND DEPOSITOR PLAINTIFFS HAVE STRESSED IN THEIR
PRESENTATIONS TO THE DISTRICT COURT AND TO THIS COURT THAT THE
RECORDKEEPING AND REPORTING REQUIREMENTS OF THE BANK SECRECY ACT ARE
FOCUSED IN LARGE PART ON THE ACQUISITION OF INFORMATION TO ASSIST IN
THE ENFORCEMENT OF THE CRIMINAL LAWS.  WHILE, AS WE HAVE NOTED,
CONGRESS SEEMS TO HAVE BEEN EQUALLY CONCERNED WITH CIVIL LIABLITY WHICH
MIGHT GO UNDETECTED BY REASON OF TRANSACTIONS OF THE TYPE REQUIRED TO
BE RECORDED OR REPORTED, CONCERN FOR THE ENFORCEMENT OF THE CRIMINAL
LAW WAS UNDOUBTEDLY PROMINENT IN THE MINDS OF THE LEGISLATORS WHO
CONSIDERED THE ACT.  WE DO NOT THINK IT IS STRANGE OR IRRATIONAL THAT
CONGRESS, HAVING ITS ATTENTION CALLED TO WHAT APPEARED TO BE SERIOUS
AND ORGANIZED EFFORTS TO AVOID DETECTION OF CRIMINAL ACTIVITY, SHOULD
HAVE LEGISLATED TO RECTIFY THE SITUATION.  WE HAVE NO DOUBT THAT
CONGRESS, IN THE SPHERE OF ITS LEGISLATIVE AUTHORITY, MAY JUST AS
PROPERLY ADDRESS ITSELF TO THE EFFECTIVE ENFORCEMENT OF CRIMINAL LAWS
WHICH IT HAS PREVIOUSLY ENACTED AS TO THE ENACTMENT OF THOSE LAWS IN
THE FIRST INSTANCE.  IN SO DOING, IT IS OF COURSE SUBJECT TO THE
STRICTURES OF THE BILL OF RIGHTS, AND MAY NOT TRANSGRESS THOSE
STRICTURES.  /30/  BUT THE FACT THAT A LEGISLATIVE ENACTMENT MANIFESTS
A CONCERN FOR THE ENFORCEMENT OF THE CRIMINAL LAW DOES NOT CAST ANY
GENERALIZED PALL OF CONSTITUTIONAL SUSPICION OVER IT.  HAVING CONCLUDED
THAT ON THE RECORD IN THESE APPEALS, PLAINTIFFS HAVE FAILED TO STATE A
CLAIM FOR RELIEF UNDER THE FIRST, FOURTH, AND FIFTH AMENDMENTS, AND
HAVING CONCLUDED THAT THE ENACTMENT IN QUESTION WAS WITHIN THE
LEGISLATIVE AUTHORITY OF CONGRESS, OUR INQUIRY IS AT AN END. 

ON THE APPEAL OF THE CALIFORNIA BANKERS ASSOCIATION IN NO. 72 - 985
FROM THAT PORTION OF THE JUDGMENT OF THE DISTRICT COURT UPHOLDING THE
RECORDKEEPING REQUIREMENTS IMPOSED BY THE SECRETARY PURSUANT TO TITLE
I, THE JUDGMENT IS AFFIRMED.  ON THE APPEAL OF THE BANK AND DEPOSITOR
PLAINTIFFS IN NO. 72 - 1196 FROM THAT PORTION OF THE DISTRICT COURT'S
JUDGMENT UPHOLDING THE RECORDKEEPING REQUIREMENTS AND REGULATIONS OF
TITLE I AND THE FOREIGN REPORTING REQUIREMENTS IMPOSED UNDER THE
AUTHORITY OF TITLE II, THE JUDGMENT IS LIKEWISE AFFIRMED.  ON THE
GOVERNMENT'S APPEAL IN NO. 72 - 1073 FROM THAT PORTION OF THE DISTRICT
COURT'S JUDGMENT WHICH HELD THAT THE DOMESTIC REPORTING REQUIREMENTS
IMPOSED UNDER TITLE II OF THE ACT VIOLATED THE CONSTITUTION, THE
JUDGMENT IS REVERSED.  THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR
DISPOSITION CONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/  SEE GENERALLY S. REP. NO. 91 - 1139; H.R. REP. NO. 91 - 975
(1970; HEARINGS ON FOREIGN BANK SECRECY AND BANK RECORDS (H.R. 15073)
BEFORE THE HOUSE COMMITTEE ON BANKING AND CURRENCY, 91ST CONG., 1ST AND
2D SESS. (1969 - 1970); HEARINGS ON FOREIGN BANK SECRECY (S. 3678 AND
H.R. 15073) BEFORE THE SUBCOMMITTEE ON FINANCIAL INSTITUTIONS OF THE
SENATE COMMITTEE ON BANKING AND CURRENCY, 91ST CONG., 2D SESS. (1970). 

/2/  SEE N. 11, INFRA. 

/3/  UNDER 123 (B), THE AUTHORITY OF THE SECRETARY EXTENDS TO ANY
PERSON ENGAGING IN THE BUSINESS OF: 

"(1) ISSUING OR REDEEMING CHECKS, MONEY ORDERS, TRAVELERS' CHECKS,
OR SIMILAR INSTRUMENTS, EXCEPT AS AN INCIDENT TO THE CONDUCT OF ITS OWN
NONFINANCIAL BUSINESS. 

"(2) TRANSFERRING FUNDS OR CREDITS DOMESTICALLY OR INTERNATIONALLY. 

"(3) OPERATING A CURRENCY EXCHANGE OR OTHERWISE DEALING IN FOREIGN
CURRENCIES OR CREDITS. 

"(4) OPERATING A CREDIT CARD SYSTEM. 

"(5) PERFORMING SUCH SIMILAR, RELATED, OR SUBSTITUTE FUNCTIONS FOR
ANY OF THE FOREGOING OR FOR BANKING AS MAY BE SPECIFIED BY THE
SECRETARY IN REGULATIONS." 

REQUIRE REPORTS WITH RESPECT TO THE OWNERSHIP, CONTROL, AND MANAGEMENT
OF UNINSURED DOMESTIC FINANCIAL INSTITUTIONS. 

/4/  SEE HOUSE HEARINGS, SUPRA, N. 1, AT 60 - 61, 80, 146, 162, 314,
316, 321, 333; S. REP. NO. 91 - 1139, SUPRA, AT 18 - 19 (SUPPLEMENTAL
VIEWS). 

/5/  FOR A SUMMARY OF THE TASK FORCE STUDY, SEE HEARINGS TO AMEND
THE BANK SECRECY ACT (S. 3914 AND S. 3828) BEFORE THE SUBCOMMITTEE ON
FINANCIAL INSTITUTIONS OF THE SENATE COMMITTEE ON BANKING, HOUSING AND
URBAN AFFAIRS, 92D CONG., 2D SESS., 60 - 64 (1972).  THE SECRETARY OF
THE TREASURY INITIALLY ISSUED REGULATIONS ON APRIL 5, 1972,
IMPLEMENTING THE PROVISIONS OF THE ACT.  SEE 31 CFR PT 103 (37 FED.,
REG. 6912).  THE TREASURY DEPARTMENT TASK FORCE  FOUND THAT LAW
ENFORCEMENT WOULD NOT BE GREATLY IMPAIRED BY LIMITING THE CHECK-COPYING
REQUIREMENT TO CHECKS IN EXCESS OF $100.  AN ASSISTANT SECRETARY OF THE
TREASURY ESTIMATED THAT THIS EXCLUSION WOULD ELIMINATE 90% OF ALL
PERSONAL CHECKS FROM THE MICROFILMING REQUIREMENT.  SENATE HEARINGS ON
S. 3814, SUPRA, AT 42, 44 57 - 58.  THE REGULATIONS WERE THUS AMENDED
SHORTLY AFTER THEIR PROMULGATION TO EXCLUDE THE COPYING OF CHECKS DRAWN
FOR $100 OR LESS.  31 CFR 103.34 (B)(3), AS AMENDED.  37 FED. REG.
23114 (1972), 38 FED., REG. 2174 (1973), EFFECTIVE JAN. 17, 1973. 
/6/  EXEMPTED BY 31 CFR 103.34 (B)(3) ARE DIVIDEND CHECKS, PAYROLL
CHECKS, EMPLOYEE BENEFIT CHECKS, INSURANCE CLAIM CHECKS, MEDICAL
BENEFIT CHECKS, CHECKS DRAWN ON GOVERNMENTAL AGENCY ACCOUNTS, CHECKS
DRAWN BY BROKERS OR DEALERS IN SECURITITES, CHECKS DRAWN ON FIDUCIARY
ACCOUNTS, CHECKS DRAWN ON OTHER FINANCIAL INSTITUTIONS, AND PENSION OR
ANNUITY CHECKS, PROVIDED THEY ARE DRAWN ON AN ACCOUNT EXPECTED TO
AVERAGE AT LEAST ONE HUNDRED CHECKS PER MONTH.     /7/  TITLE 31 CFR
103.34 (B) REQUIRES THAT EACH BANK RETAIN EITHER THE ORIGINAL OR A
MICROFILM OR OTHER COPY OR REPRODUCTION OF (1) DOCUMENTS GRANTING
SEGNATURE AUTHORITY OVER ACCOUNTS; (2) STATEMENTS OR LEDGER CARDS
SHOWING TRANSACTIONS IN EACH ACCOUNT; (3) EACH ITEM INVOLVING MORE THAN
$10,000 REMITTED OR TRANSFERRED TO A PERSON, ACCOUNT, OR PLACE OUTSIDE
THE UNITED STATES; (4) A RECORD OF EACH REMITTANCE OR TRANSACTION OF
FUNDS, CURRENCY, MONETARY INSTRUMENTS, CHECKS, INVESTMENT SECURITIES,
OR CREDIT, OF MORE THAN $10,000 TO A PERSON, ACCOUNT, OR PLACE OUTSIDE
THE UNITED STATES; (5) EACH CHECK OR DRAFT IN AN AMOUNT EXCEEDING
$10,000 DRAWN ON OR ISSUED BY A FOREIGN BANK WHICH THE DOMESTIC BANK
HAS PAID OR PRESENTED TO A NONBANK DRAWEE FOR PAYMENT; (6) EACH ITEM OF
MORE THAN $10,000 RECEIVED DIRECTLY FROM A BANK, BROKER, OR DEALER IN
FOREIGN EXCHANGE OUTSIDE THE UNITED STATES; (7) A RECORD OF EACH
RECEIPT OF CURRENCY, MONETARY INSTRUMENTS, CHECKS, OR INVESTMENT
SECURITIES, AND EACH TRANSFER OF FUNDS OR CREDIT IN AMOUNTS EXCEEDING
$10,000 RECEIVED DIRECTLY FROM A BANK, BROKER, OR DEALER IN FOREIGN
EXCHANGE OUTSIDE THE UNITED STATES; (8) RECORDS NEEDED TO RECONSTRUCT A
DEMAND DEPOSIT ACCOUNT AND TO TRANCE CHECKS IN EXCESS OF $100 DEPOSITED
IN SUCH ACCOUNT. 

TITLE 31 CFR 103.35 REQUIRES BROKERS AND DEALERS IN SECURITIES TO
MAINTAIN SIMILAR INFORMATION WITH RESPECT TO THEIR BROKERAGE ACCOUNTS. 

THE PRESCRIBED RETENTION PERIOD FOR ALL RECORDS UNDER THE
REGULATIONS IS FIVE YEARS, EXCEPT FOR THE RECORDS REQUIRED FOR
SECONSTRUCTING A DEMAND DEPOSIT ACCOUNT, WHICH MUST BE RETAINED FOR
ONLY TWO YEARS.  31 CFR 103.36 (C). 

/8/  TITLE 31 CFR 103.51 PROVIDES: 

"EXCEPT AS PROVIDED IN 103.34 (A)(1) AND 103.35 (A)(1), AND EXCEPT
FOR THE PURPOSE OF ASSURING COMPLIANCE WITH THE RECORDKEEPING AND
REPORTING REQUIREMENTS OF THIS PART, THIS PART DOES NOT AUTHORIZE THE
SECRETARY OR ANY OTHER PERSON TO INSPECT OR REVIEW THE RECORDS REQUIRED
TO BE MAINTAINED BY SUBPART C OF THIS PART.  OTHER INSPECTION, REVIEW
OR ACCESS TO SUCH RECORDS IS GOVERNED BY OTHER APPLICABLE LAW". 

THIS REGULATION BECAME EFFECTIVE JANUARY 17, 1973.  37 FED. REG.,
23114 (1972); 38 FED. REG. 2174 (1973). 

/9/  "MONETARY INSTRUMENT" IS DEFINED BY 203 (1) OF THE ACT AS "COIN
AND CURRENCY OF THE UNITED STATES, AND IN ADDITION, SUCH FOREIGN COIN
AND CURRENCIES, AND SUCH TYPES OF TRAVELERS' CHECKS, BEATER NEGOTIABLE
INSTRUMENTS, BEARER INVESTMENT SECURITIES, BEARER SECURITIES, AND STOCK
WITH TITLE PASSING UPON DELIVERY, OR THE EQUIVALENT THEREOF, AS THE
SECRETARY MAY BE REGULATION SPECIFY FOR THE PURPOSES OF THE PROVISION
OF THIS TITLE TO WHICH THE REGULATION RELATES."  31 U.S.C. 1052 (L). 

/10/  THE FORM PROVIDED BY THE TREASURY DEPARTMENT FOR THE REPORTING
OF THESE TRANSACTIONS IF FORM 4790 (REPORT OF INTERNATIONAL
TRANSPORTATION OF CURRENCY OR MONETARY INSTRUMENTS).  SEE MOTION TO
AFFIRM ON BEHALF OF THE UNITED STATES IN NO. 72 - 985, APP. C, PP. 29 -
30.  THE REPORT MUST IDENTIFY THE PERSON REQUIRED TO FILE THE REPORT,
HIS CAPACITY, AND THE IDENTITY OF PERSONS FOR WHOM HE ACTS, AND MUST
SPECIFY THE AMOUNTS AND TYPES OF MONETARY INSTRUMENTS, THE METHOD OF
TRANSPORTATION, AND, IF APPLICABLE, THE NAME OF THE PERSON FROM WHOM
THE SHIPMENT WAS RECEIVED. 

/11/  IN ISSUING THESE REGULATIONS, THE SECRETARY RELIED UPON THE
AUTHORITY OF TWO STATUTORY PROVISIONS: (1) THE TRADING WITH THE ENEMY
ACT, 40 STAT. 411, AS AMENDED BY 2, ACT OF MAR. 9, 1933, 48 STAT. 1. 
AND BY 301, FIRST WAR POWERS ACT, 1941, 55 STAT. 839, SEE 12 U.S.C. 95A
(1940 ED., SUPP. V); AND (2) 251 OF THE REVISED STATUTES, 31 U.S.C.
427. 

/12/  THE PREVIOUS REGULATIONS PROMULGATED BY THE SECRETARY, SEE 31
CFR 102.1 (1949), 10 FED. REG. 6556, ORIGINALLY MENTIONED TRANSACTIONS
INVOLVING $1,000 OR MORE IN DENOMINATIONS OF $50 OR MORE, OR $10,000 OR
MORE IN ANY DENOMINATIONS.  IN 1952, THE FORMER AMOUNT WAS RAISED TO
$2,500 IN DENOMINATIONS OF $100 OR MORE.  SEE 17 FED. REG. 1822, 2306. 
WHEN THESE REGULATIONS WERE REVISED IN 1959 TO SIMPLIFY THE REPORTING
FORM, THE SECRETARY NOTED THE GREAT VALUE OF THE REPORTS TO LAW
ENFORCEMENT.  SEE TREASURY RELEASE NO. A-590, AUG. 3, 1959, INCLUDED IN
THE JURISDICTIONAL STATEMENT FOR THE UNITED STATES IN NO. 72 - 1073,
APP. E, PP., 127 - 130. 

/13/  THE PROPER INTERPRETATION OF THIS SECTION IS A SOURCE OF
DISPUTE IN THESE APPEALS.  SEE N. 29, INFRA. 

/14/  "CURRENCY" IS DEFINED IN THE SECRETARY'S REGULATIONS AS THE "
"COIN AND CURRENCY OF THE UNITED STATES OR OF ANY OTHER COUNTRY, WHICH
CIRCULATE IN AND ARE CUSTOMARILY USED AND ACCEPTED AS MONEY IN THE
COUNTRY IN WHICH ISSUED.  IT INCLUDES U.S. SILVER CERTIFICATES, U.S.
NOTES AND FEDERAL RESERVE NOTES, BUT DOES NOT INCLUDE BANK CHECKS OR
OTHER NEGOTIABLE INSTRUMENTS NOT CUSTOMARILY ACCEPTED AS MONEY."  31
CFR 103.11. 

/15/  THE FORM PRESCRIBED BY THE SECRETARY, SEE 31 CFR 103.25 (A),
FOR THE REPORTING OF THE DOMESTIC CURRENCY TRANSACTIONS IS TREASURY
FORM 4789 (CURRENCY TRANSACTION REPORT).  SEE JURISDICTIONAL STATEMENT
FOR THE UNITED STATES IN NO. 72 - 1073, APP. D, P. 121.  FORM 4789
REQUIRES INFORMATION SIMILAR TO THAT REQUIRED BY THE PREVIOUS TREASURY
REPORTING FORM, SEE N. 12, SUPRA, INCLUDING (1) THE NAME, ADDRESS,
BUSINESS OR PROFESSION AND SOCIAL SECURITY NUMBER OF THE PERSON
CONDUCTING THE TRANSACTION; (2) SIMILAR INFORMATION AS TO THE PERSON OR
ORGANIZATION FOR WHOM IT WAS CONDUCTED; (3) A SUMMARY DESCRIPTION OF
THE NATURE OF THE TRANSACTION, THE TYPE, AMOUNT, AND DENOMINATION OF
THE CURRENCY INVOLVED AND A DESCRIPTION OF ANY CHECK INVOLVED IN THE
TRANSACTION; (4) THE TYPE OF IDENTIFICATION PRESENTED; AND (5) THE
IDENTITY OF THE REPORTING FINANCIAL INSTITUTION. 

THE REGULATIONS ALSO PROVIDE THAT THE NAMES OF ALL CUSTOMERS WHOSE
CURRENCY TRANSACTIONS IN EXCESS OF $10,000 ARE NOT REPORTED ON FORM
4789 MUST BE REPORTED TO THE SECRETARY ON DEMAND.  31 CFR 103.22. 

/16/  TRANSACTIONS WITH FEDERAL RESERVE BANKS OR FEDERAL HOME LOAN
BANKS, OR SOLELY WITH OR ORIGINATED BY FINANCIAL INSTITUTIONS OR
FOREIGN BANKS, ARE ALSO EXCLUDED FROM THESE REPORTING REQUIREMENTS.  31
CFR 103.22. 

/17/  SECTION 212 OF THE ACT, 31 U.S.C. 1061, AUTHORIZES THE
SECRETARY TO PROVIDE BY REGULATION FOR THE AVAILABILITY OF INFORMATION
PROVIDED IN THE REPORTS REQUIRED BY THE ACT TO OTHER DEPARTMENTS AND
AGENCIES OF THE FEDERAL GOVERNMENT.  PURSUANT TO THIS AUTHORITY, THE
SECRETARY HAS PROMULGATED 31 CFR 103.43, WHICH PROVIDES: 

"THE SECRETARY MAY MAKE ANY INFORMATION SET FORTH IN ANY REPORT
RECEIVED PURSUANT TO THIS PART AVAILABLE TO ANY OTHER DEPARTMENT OR
AGENCY OF THE UNITED STATES UPON THE REQUEST OF THE HEAD OF SUCH
DEPARTMENT OF AGENCY, MADE IN WRITING AND STATING THE PARTICULAR
INFORMATION DESIRED, THE CRIMINAL, TAX OR REGULATORY INVESTIGATION OR
PROCEEDING IN CONNECTION WITH WHICH THE INFORMATION IS SOUGHT AND THE
OFFICIAL NEED THEREFOR.  ANY INFORMATION MADE AVAILABLE UNDER THIS
RECEIVED BY THEM IN CONFIDENCE, AND SHALL NOT BE DISCLOSED TO ANY
PERSON EXCEPT FOR OFFICIAL PURPOSES RELATING TO THE INVESTIGATION OR
PROCEEDING IN CONNECTION WITH WHICH THE INFORMATION IS SOUGHT." 

THE LAST SENTENCE OF THIS REGULATION WAS ADDED BY AN AMENDMENT, SEE 37
FED. REG. 23114 (1972), 38 FED. REG. 2174 (1973), EFFECTIVE JAN. 17,
1973. 

/18/  TITLE 31 CFR 103.45 (A) PROVIDES:  "THE SECRETARY, IN HIS SOLE
DISCRETION, MAY BE WRITTEN ORDER OR AUTHORIZATION MAKE EXCEPTIONS TO OR
GRANT EXEMPTIONS FROM THE REQUIREMENTS OF THIS PART.  SUCH EXCEPTIONS
OR EXEMPTIONS MAY BE CONDITIONAL OR UNCONDITIONAL, MAY APPLY TO
PARTICULAR PERSONS OR TO CLASSES OF PERSONS, AND MAY APPLY TO
PARTICULAR TRANSACIONS OR CLASSES OF TRANSACTIONS.  THEY SHALL,
HOWEVER, BE APPLICABLE ONLY AS EXPRESSLY STATED IN THE ORDER OF
AUTHORIZATION, AND THEY SHALL BE REVOCABLE IN THE SOLE DISCRETION OF
THE SECRETARY."  WHEN ORIGINALLY PROMULGATED, THIS REGULATION
ADDITIONALLY GAVE THE SECRETARY THE AUTHORITY TO "IMPOSE ADDITIONAL
RECORDKEEPING OR REPORTING REQUIREMENTS AUTHORIZED BY STATUTE, OR
OTHERWISE MODIFY, THE REQUIREMENTS OF" THE ACT.  37 FED. REG. 6915
(1972).  THE AMENDMENT TO THE PRESENT FORM BECAME EFFECTIVE JANUARY 17,
1973.  37 FED. REG. 23114 (1972); 38 FED. REG. 2174 (1973). 

/19/  SEE, E.G., THREAS.  REG.  1.368 - 3 (RECORDS TO BE KEPT BY
TAXPAYERS WHO PARTICIPATE IN TAX-FREE EXCHANGES IN CONNECTION WITH A
CORPORATE REORGANIZATION); 1.374 - 3 (RECORDS TO BE KEPT BE A RAILROAD
CORPORATION ENGAGING IN A TAX-FREE EXCHANGE IN CONNECTION WITH A
RAILROAD REORGANIZATION); 1.857 - 6 (REAL ESTATE INVESTMENT TRUSTS MUST
KEEP RECORDS OF STOCK OWNERSHIP); 1.964 - 3 (SHAREHOLDERS MUST KEEP
RECORDS OF THEIR INTEREST IN A CONTROLLED FOREIGN CORPORATION); 1.1101
4 (RECORDS MUST BE KEPT BY A STOCK OR SECURITY HOLDER WHO RECEIVES
STOCK OR SECURITIES OR OTHER PROPERTY UPON A DISTRIBUTION MADE BY A
WUALIFIED BANK HOLDING CORPORATION); 1.1247 - 5 (FOREIGN INVESTMENT
COMPANY MUST KEEP RECORDS SUFFICIENT TO VERIFY WHAT TAXABLE INCOME IT
MAY HAVE); 1.600 - 1 (ALL PERSONS LIABLE TO TAX UNDER SUBTITLE A OF THE
INTERNAL REVENUE CODE SHALL KEEP RECORDS SUFFICIENT TO ESTABLISH GROSS
INCOME, DEDUCTIONS, AND CREDITS); 31.6001 ET SEQ. (REQUIREMENTS THAT
VARIOUS EMPLOYERS KEEP RECORDS OF WITHHOLDING UNDER THE RAILROAD
RETIREMENT TAX ACT AND THE FEDERAL UNEMPLOYMENT TAX ACT); 45.6001 - 2
TO 45.6001 - 4 (RECORDS TO BE KEPT BY MANUFACTURERS OF BUTTER AND
CHEESE); 46.6001 - 2 (RECORDS TO BE KEPT BY MANUFACTURERS OF SUGAR);
46.6001 - 4 (RECORDS TO BE DEPT BY PERSONS PAYING PREMIUMS ON POLICIES
ISSUED BY FOREIGN INSURERS).  TREAS. REG. 301.7207 - 1 PROVIDES FOR
CRIMINAL PENALTIES FOR WILLFUL DELIVERY OR DISCLOSURE TO THE INTERNAL
REVENUE SERVICE OF A DOCUMENT KNOWN BY THE PERSON DISCLOSING IT TO BE
FALSE AS TO ANY MATERIAL MATTER. 

/20/ BRIEF FOR APPELLANT CALIFORNIA BANKERS ASSOCIATION IN NO. 72 -
985, P. 25. 

/21/  CONGRESS HAD BEFORE IT AMPLE TESTIMONY THAT THE REQUIREMENT
THAT BANKS REPRODUCE CHECKS AND MAINTAIN OTHER RECORDS WOULD
SIGNIFICANTLY AID IN THE ENFORCEMENT OF FEDERAL TAX, REGULATORY, AND
CRIMINAL LAWS.  SEE HOUSE HEARINGS, SUPRA, N. 1, AT 151, 322, 359;
SENATE HEARINGS, SUPRA, N. 1, AT 61 - 68, 175, 230, 250 - 255, 282. 
WHILE A SUBSTANTIAL PORTION OF THE CHECKS DRAWN ON BANKS IN THE UNITED
STATES MAY NEVER BE OF ANY UTILITY FOR LAW ENFORCEMENT, TAX OR
REGULATORY PURPOSES, THE REGULATIONS DO LIMIT THE CHECK-COPYING
REQUIREMENT TO CHECKS IN EXCESS OF $100.  31 CFR 103.34 (B)(3) AND
(4).  THIS $100 EXCEPTION WAS ADDED TO THE REGULATIONS SINCE THIS
LITIGATION WAS INSTITUTED, SEE N. 5, SUPRA; IN REVIEWING THE JUDGMENT
OF THE DISTRICT COURT IN THIS CASE, WE LOOK TO THE STATUTE AND THE
REGULATIONS AS THEY NOW STAND, NOT AS THEY ONCE DID.  HALL V. BEALS,
396 U.S. 45, 48 (1969) (PER CURIAM); THORPE V. HOUSING AUTHORITY, 393
U.S. 268, 281 N. 38 (1969). 

THE CALIFORNIA BANKERS ASSOCIATION CONTENDS THAT THE $100 EXCEPTION
IS MEANINGLESS SINCE MICROFILM CAMERAS CANNOT DISCRIMINATE BETWEEN
CHECKS IN DIFFERENT AMOUNTS.  THERE WAS, HOWEVER, TESTIMONY DURING THE
HOUSE HEARINGS THAT AN ADDITIONAL STOP COULD BE ADDED TO THE CHECK
HANDLING PROCEDURES TO SORT OUT THOSE CHECKS NOT REQUIRED TO BE COPIED,
AND THAT MANY BANKS HAVE EQUIPMENT THAT CAN SORT CHECKS ON A DOLLAR
AMOUNT BASIS.  HOUSE HEARINGS, SUPRA, N. 1, AT 322, 359.  IN ANY EVENT,
IT IS CLEAR THAT THE ACT AND REGULATIONS DO NOT REQUIRE BANKS TO
MICROFILM ALL CHECKS, WHICH SOME BANKS HAVE TRADITIONALLY DONE, BUT
INSTEAD LEAVE THE DECISION TO THE BANKS.  GIVEN THE FACT THAT THE COST
BURDENS PLACED ON THE BANKS IN IMPLEMENTING THE RECORDKEEPING
REQUIREMENTS OF THE STATUTE AND REGULATIONS ARE ALSO REASONABLE ONES,
SEE N. 22, INFRA, WE DO NOT THINK THAT THE RECORDKEEPING REQUIREMENTS
ARE UNREASONABLE. 

/22/  THE ONLY FIGURES IN THE RECORD AS TO THE COST BURDENS PLACED
ON THE BANKS BY THE RECORDKEEPING REQUIREMENTS SHOW THAT THE BANK OF
AMERICA, ONE OF THE LARGEST BANKS IN THE UNITED STATES, WITH 997
BRANCHES, $29 BILLION IN DEPOSITS, AND A NET INCOME IN EXCESS OF $178
MILLION (MOODY'S BANK AND FINANCE MANUAL 633 - 636 (1972)), EXPENDED
$392,000 IN 1971, INCLUDING START-UP COSTS, TO COMPLY WITH THE
MICROFILMING REQUIREMENTS OF TITLE 1 OF THE ACT.  AFFIDAVIT OF WILLIAM
EHLER, APP. 24 - 25. 

THE HEARINGS BEFORE THE HOUSE COMMITTEE ON BANKING AND CURRENCY
INDICATED THAT THE COST OF MAKING MICROFILM COPIES OF CHECKS RANGED
FROM 1 1/2 MILLS PER CHECK FOR SMALL BANKS DOWN TO ABOUT 1/2 MILL OR
LESS FOR LARGE BANKS.  SEE HOUSE HEARINGS, SUPRA, N. 1, AT 341, 354 -
356; H. REP. NO. 91 - 975, SUPRA, AT 11.  THE HOUSE REPORT FURTHER
INDICATES THAT THE LEGISLATION WAS NOT EXPECTED TO SIGNIFICANTLY
INCREASE THE COSTS OF THE BANKS INVOLVED SINCE IT FOUND THAT MANY BANKS
ALREADY FOLLOWED THE PRACTICE OF MAINTAINING THE RECORDS CONTEMPLATED
BY THE LEGISLATION. 

/23/  SEE N. 18, SUPRA. 

/24/  CHAPTER 4 OF THE ACT, 241 31 U.S.C. 1121, AUTHORIZES THE
SECRETARY TO REQUIRE BY REGULATION THE MAINTENANCE OF RECORDS BY
PERSONS WHO ENGAGE IN ANY TRANSACTION OR MAINTAIN A RELATIONSHIP,
DIRECTLY OR INDIRECTLY, ON BEHALF OF THEMSELVES OR OTHERS, WITH A
FOREIGN FINANCIAL AGENCY.  THE SECRETARY HAS, BY REGULATION, REQUIRED
THE MAINTENANCE OF SUCH RECORDS BY PERSONS HAVING SUCH FINANCIAL
INTERESTS AND BY DOMESTIC FINANCIAL INSTITUTIONS WHICH ENGAGE IN
MONETARY TRANSACTIONS OUTSIDE THE UNITED STATES.  31 CFR 103.32,
103.33.  THE ACT ALSO PROVIDES THAT PRODUCTION OF SUCH RECORDS SHALL BE
COMPELLED ONLY BE "A SUBPENA OR SUMMONS DULY AUTHORIZED AND ISSUED OR
AS MAY OTHERWISE BE REQUIRED BY LAW."  31 U.S.C. 1121 (B).  THOUGH IT
IS NOT APPARENT FROM THE VARIOUS BRIEFS FILED IN THIS COURT BY THE
PLAINTIFFS BELOW WHETHER THIS PARTICULAR RECORDKEEPING REQUIREMENT IS
CHALLENGED, OUR HOLDING THAT A MERE REQUIREMENT THAT RECORDS BE DEPT
DOES NOT VIOLATE ANY CONSTITUTIONAL RIGHT OF THE BANKS OR OF THE
DEPOSITORS NECESSARILY DISPOSES OF SUCH A CLAIM, SINCE THERE IS NO
INDICATION AT THIS POINT THAT THERE HAS BEEN ANY ATTEMPT TO COMPEL THE
PRODUCTION OF SUCH RECORDS. 

/25/  THE ACLU RECOGNIZES THAT THESE CASES, AND THE OTHER CASES IT
CITES INVOLVED SITUATIONS IN WHICH A SUBPOENA OR SUMMONS HAD ALREADY
ISSUED.  BRIEF FOR APPELLANT ACLU IN NO. 72 - 1196, P. 57.  SEE LAMONT
V. POSTMASTER GENERAL, 381 U.S. 301 (1965); GIBSON V. FLORIDA
LEGISLATIVE INVESTIGATION COMM., 372 U.S. 539 (1963); LOUISIANA EXREL. 
GREMILLION V. NAACP, 366 U.S. 293 (1961); SHELTON V. TUCKER, 364 U.S.
479 (1960); BATES V. LITTLE ROCK, 361 U.S. 516 (1960); NAACP V.
ALABAMA, 357 U.S. 449 (1958); UNITED STATES V. RUMELY, 345 U.S. 41
(1963). 

/26/  THE ACLU CONTENDS THAT PRESENT INJUNCTIVE RELIEF IS ESSENTIAL,
SINCE THE BANKS MIGHT NOT NOTIFY IT OF THE FACT THAT THEIR RECORDS HAVE
BEEN SUBPOENAED, AND MIGHT COMPLY WITH THE SUBPOENA WITHOUT GIVING THE
ACLU A CHANCE TO OBTAIN JUDICIAL REVIEW.  WHILE NOTING THAT "MOST BANKS
FORMALLY PROHIBIT" IT (CITING AMERICAN BANKER, MAY 12, 1972, P. 1,
COLS.  3 - 4), THE ACLU ALSO CONTENDS THAT THE "DAY-TO-DAY PRACTICE OF
PERMITTING 'INFORMAL' ACESS TO BANK RECORDS IS, UNFORTUNATELY,
WIDESPREAD."  BRIEF FOR APPELLANT ACLU IN NO 72 - 1196, P. 58. 

THE RECORD CONTAINS NO SHOWING OF ANY ATTEMPT BY THE GOVERNMENT,
FORMAL OR INFORMAL, TO COMPEL THE PRODUCTION OF BANK RECORDS CONTAINING
INFORMATION RELATING TO THE ACLU; WE ACCORDINGLY EXPRESS NO OPINION
WHETHER NOTICE WOULD IN SUCH AN INSTANCE BE REQUIRED BE WITH THER ACT
OR THE COMSTITUTION. 

/27/  SEE N. 29, INFRA. 

/28/  WE HOLD HERE AND IN OTHER PARTS OF THIS OPINION THAT CERTAIN
OF THE PLAINTIFFS DID NOT MAKE THE REQUISITE ALLEGATIONS IN THE
DISTRICT COURT TO GIVE THEM STANDING TO CHALLENGE THE ACT AND THE
REGULATIONS ISSUED PURSUANT TO IT.  IN SO HOLDING, WE DO NOT, OF
COURSE, MEAN TO IMPLY THAT SUCH CLAIMS WOULD BE MERITORIOUS IF
PRESENTED BY A LITIGANT WHO WAS STANDING. 

/29/  PLAINTIFFS SIMILARLY CONTEND THAT THE SECRETARY'S REGULATION
REQUIRING THE REPORTING OF DOMESTIC CURRENCY TRANSACTIONS ONLY BY THE
BANKS OR FINANCIAL INSTITUTIONS WHICH ARE PARTIES THERETO, VIOLATES A
SPECIFIC REQUIREMENT OF THE ACT.  SECTION 222 OF THE ACT, 31 U.S.C.
1082, PROVIDES IN PERTINENT PART: 

"THE REPORT OF ANY TRANSACTION REQUIRED TO BE REPORTED UNDER THIS
CHAPTER SHALL BE SIGNED OR OTHERWISE MADE BOTH BY THE DOMESTIC
FINANCIAL INSTITUTION INVOLVED AND BY ONE OR MORE OF THE OTHER PARTIES
THERETO OR PARTICIPANTS THEREIN, AS THE SECRETARY MAY REQUIRE." 
PLAINTIFFS CONTEND THAT THIS LANGUAGE REQUIRES THE SECRETARY TO REQUIRE
EITHER A SIGNATURE ON THE REPORT BY THE INDIVIDUAL CUSTOMER IN THE
CURRENCY TRANSACTION, OR A REPORT FROM THAT CUSTOMER.  SINCE THE
SECRETARY HAS ONLY REQUIRED A REPORT FROM THE FINANCIAL INSTITUTION,
PLAINTIFFS URGE, IN ADDITION, THAT THERE WILL NOT BE NOTICE TO THE
INDIVIDUAL CUSTOMER OF THE REPORT MADE BY THE FINANCIAL INSTITUTION. 

IN REBUTTAL, THE GOVERNMENT URGED IN ORAL ARGUMENT, TR. OF ORAL ARG.
64 - 70, THAT NOT ONLY DOES 206 OF THE ACT, 31 U.S.C. 1055, GIVE THE
SECRETARY BROAD AUTHORITY TO MAKE EXCEPTIONS TO THE REQUIREMENTS OF THE
ACT IN PROMULGATING THE REGULATIONS, BUT THAT THE HOUSE AND SENATE
REPORTS ON THE BILLS CONSIDERED BY EACH HOUSE OF THE CONGRESS, EACH OF
WHICH CONTAINED A PROVISION IDENTICAL TO THE LANGUAGE OF 222, INDICATED
THAT EACH CHAMBER READ THAT LANGUAGE DIFFERENTLY.  THE SENATE COMMITTEE
BELIEVED THAT THE LANGUAGE PERMITTED THE SECRETARY TO REQUIRE REPORTS
FROM THE FINANCIAL INSTITUTION, THE CUSTOMER, OR BOTH, S. REP. NO. 91 -
11398 SUPRA, AT 15, WHILE THE HOUSE COMMITTE FELT THAT THE LANGUAGE
REQUIRED REPORTS TO BE FILED BY BOTH THE FINANCIAL INSTITUTION AND THE
CUSTOMER, H.R. REP. NO. 91 - 975, SUPRA, AT 22. 

WE SIMILARLY DO NOT REACH THIS CLAIM AS IT RELATES TO THE DEPOSITOR
PLAINTIFFS SINCE THEY FAILED TO ALLEGE SUFFICIENT INJURY BELOW. 
WHATEVER THE MERITS OF SUCH A CONTENTION VIS-A-VIS THE DEPOSITORS, THE
REGULATION CLEARLY HAS NO ADVERSE EFFECT ON ANY CONSTITUTIONAL RIGHT OF
THE BANKS, SINCE THE STATUTE INDISPUTABLY AUTHORIZES THE SECRETARY TO
REQUIRE A REPORT FROM THE BANK. 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE BLACKMUN JOINS,
CONCURRING. 

I JOIN THE COURT'S OPINION, BUT ADD A WORD CONCERNING THE ACT'S
DOMESTIC REPORTING REQUIREMENTS. 

THE ACT CONFERS BROAD AUTHORITY ON THE SECRETARY TO REQUIRE REPORTS
OF DOMESTIC MONETARY TRANSACTIONS FROM THE FINANCIAL INSTITUTIONS AND
PARTIES INVOLVED.  31 U.S.C. 1081 AND 1082.  THE IMPLEMENTING
REGULATIONS, HOWEVER, REQUIRE ONLY THAT THE FINANCIAL INSTITUTION "FILE
A REPORT ON EACH DEPOSIT, WITHDRAWAL, EXCHANGE OF CURRENCY OR OTHER
PAYMENT OR TRANSFER, BY, THROUGH, OR TO SUCH FINANCIAL INSTITUTION,
WHICH INVOLVES A TRANSACTION IN CURRENCY OF MORE THAN $10,000."  31 CFR
103.22.  AS THE COURT PROPERTY RECOGNIZES, WE MUST ANALYZE PLAINTFFS'
CONTENTIONS IN THE CONTEXT OF THE ACT AS NARROWED BY THE REGULATIONS. 
ANTE, AT 64.  FROM THIS PERSPECTIVE, I AGREE THAT THE REGULATIONS DO
NOT CONSTITUTE AN IMPERMISSIBLE INFRINGEMENT OF ANY CONSTITUTIONAL
RIGHT. 

A SIGNIFICANT EXTENSION OF THE REGULATIONS' REPORTING REQUIREMENTS,
HOWEVER, WOULD POSE SUBSTANTIAL AND DIFFICULT CONSTITUTIONAL QUESTIONS
FOR ME.  IN THEIR FULL REACH, THE REPORTS APPARENTLY AUTHORIZED BY THE
OPEN-ENDED LANGUAGE OF THE ACT TOUCH UPON INTIMATE AREAS OF AN
INDIVIDUAL'S PERSONAL AFFAIRS.  FINANCIAL TRANSACTIONS CAN REVEAL MUCH
ABOUT A PERSON'S ACTIVITIES, ASSOCIATIONS, AND BELIEFS.  AT SOME POINT,
GOVERNMENTAL INTRUSION UPON THESE AREAS WOULD IMPLICATE LEGITIMATE
EXPECTATIONS OF PRIVACY.  MOREOVER, THE POTENTIAL FOR ABUSE IS
PARTICULARLY ACUTE WHERE, AS HERE, THE LEGISLATIVE SCHEME PERMITS
ACCESS TO THIS INFORMATION WITHOUT INVOCATION OF THE JUDICIAL PROCESS. 
IN SUCH INSTANCES, THE IMPORTANT RESPONSIBILITY FOR BALANCING SOCIETAL
AND INDIVIDUAL INTERESTS IS LEFT TO UNREVIEWED EXECUTIVE DISCRETION,
RATHER THAN THE SCRUTINY OF A NEUTRAL MAGISTRATE.  UNITED STATES V.
U.S. DISTRICT COURT, 407 U.S. 297, 316 - 317 (1972).  AS THE ISSUES ARE
PRESENTLY FRAMED, HOWEVER, I AM IN ACCORD WITH THE COURT'S DISPOSITION
OF THE MATTER. 

MR. JUSTICE DOUGLAS, DISSENTING. 

        I. 

THE COURT EXPRESSES A DOUBT THAT THE CALIFORNIA BANKERS ASSOCIATION
HAS STANDING TO LITIGATE THE CLAIMS IT ASSERTS.  THAT DOUBT, HOWEVER,
SHOULD BE DISSIPATED BY OUR DECISIONS. 

SIERRA CLUB V. MORTON, 405 U.S. 727, 739, STATED UNEQUIVOCALLY THAT
"AN ORGANIZATION WHOSE MEMBERS ARE INJURED MAY REPRESENT THOSE MEMBERS
IN A PROCEEDING FOR JUDICIAL REVIEW." 

APPELLANTS IN NO. 72 - 1196 ARE A NATIONAL BANK, A BANK CUSTOMER AND
DEPOSITOR, A MEMBERSHIP ORGANIZATION WHICH IS A CUSTOMER OF BANKS AND
RECEIVES MONEY THROUGH BANKS FOR ITS MEMBERS, A BUSINESSMAN WHO HAS
ENGAGED IN AND EXPECTS TO ENGAGE IN FOREIGN FINANCIAL TRANSACTIONS, AND
INDIVIDUALS HAVING INTEREST IN OR AUTHORITY OVER FOREIGN BANK
ACCOUNTS.  THERE CAN HARDLY BE ANY DOUBT THAT THESE PERSONS--AT LEAST
THE INDIVIDUALS AND THE MEMBERSHIP ORGANIZATION--HAVING STANDING.  I
THINK THE SAME IS TRUE OF THE NATIONAL BANK IN NO. 72 - 1196 AND THE
CALIFORNIA BANKERS ASSOCIATION IN NO. 72 - 985. 

THE CLAIMS THE ASSOCIATIONS LITIGATE IN THESE CASES ARE NOT ONLY
THOSE OF ITS MEMBERS BUT ALSO THOSE OF THE DEPOSITORS OF THOSE MEMBER
BANKS.  THIS WILL COST THE BANKS, IT IS ESTIMATED, OVER $6 MILLION A
YEAR.  CERTAINLY THAT IS ENOUGH TO GIVE THE BANKS STANDING.  MOREOVER
THEY MUST SPY ON THEIR CUSTOMERS.  THE BANK SECRECY ACT REQUIRES BANKS
TO RECORD AND RETAIN THE DETAILS OF THEIR CUSTOMERS' FINANCIAL LIVES. 
IN PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, THE COURT UPHELD THE
RIGHT OF A REPRESENTATIVE LITIGANT, A PAROCHIAL SCHOOL, TO HAVE
STANDING TO RAISE QUESTIONS PERTAINING TO THE RIGHTS OF PARENTS,
GUARDIANS, AND CHILDREN.  SEE BARROWS V. JACKSON, 346 U.S. 249, 257. 
IN EISENSTADT V. BAIRD, 405 U.S. 438, WE UPHELD THE STANDING OF A
DISTRIBUTOR OF CONTRACEPTIVES TO ASSERT RIGHTS OF UNMARRIED PERSONS,
SINCE THEY WERE DENIED "A FORUM IN WHICH TO ASSERT THEIR OWN RIGHTS." 
ID., AT 446.  THE QUESTION OF STANDING HAS BEEN VARIOUSLY DESCRIBED. 
BUT THE "GIST" OF THE QUESTION, WE SAID IN BAKER V. CARR, 369 U.S. 186,
204, WAS WHETHER THE PARTY HAS "SUCH A PERSONAL STAKE IN THE OUTCOME OF
THE CONTROVERSY AS TO ASSURE THAT CONCRETE ADVERSENESS WHICH SHARPENS
THE PRESENTATION OF ISSUES."  THERE IS THAT "CONCRETE ADVERSENESS"
HERE; AND THAT DOUBTLESS IS THE REASON THE SOLICITOR GENERAL DOES NOT
RAISE THE QUESTION WHICH THE COURT NOW STIRS. 

        II 

THE ACT HAS AS ITS PRIMARY GOAL THE ENFORCEMENT OF THE CRIMINAL
LAW.  /1/  THE RECORDKEEPING REQUIREMENTS ORIGINATED ACCORDING TO
CONGRESSMAN PATMAN, AUTHOR OF THE MEASURE, WITH THE DEPARTMENT OF
JUSTICE AND THE INTERNAL REVENUE SERVICE IN RESPONSE TO TWO PROBLEMS:
(1) "A TREND WAS DEVELOPING IN THE LARGER BANKS AWAY FROM THEIR
TRADITIONAL PRACTICES OF MICROFILMING ALL CHECKS DRAWN ON THEM."  116
CONG. REC. 16953.  (2) AS RESPECTS THE IDENTIFICATION OF DEPOSITORS, "A
TYPICAL EXAMPLE MIGHT INVOLVE A SITUATION WHERE A PERSON WITH A
CRIMINAL REPUTATION HELDS AN ACCOUNT BUT DOES NOT PERSONALLY MAKE
DEPOSITS OR WITHDRAWALS."  IBID. 

THE PURPOSE OF THE ACT WAS TO GIVE THE SECRETARY OF THE TREASURY
"PRIMARY RESPONSIBILITY" UNDER TITLE II "TO SEE TO IT THAT CRIMINALS DO
NOT TAKE UNDUE ADVANTAGE OF INTERNATIONAL TRADE AND GO UNDETECTED AND
UNPUNISHED."  ID., AT 16954.  HE ADDED: "I WOULD BE THE FIRST TO ADMIT
THAT THIS LEGISLATION DOES NOT PROVIDE PERFECT CRIME PREVENTION. 
HOWEVER, IT IS FELT THAT THE LEGISLATION WILL SUBSTANTIALLY INCREASE
THE RISK OF DISCOVERY OF ANY CRIMINAL WHO UNDERTAKES TO HIDE HIS
ACTIVITY BEHIND FOREIGN SECRECY."  ID., AT 16955. 

THE SAME PURPOSE WAS REFLECTED IN THE SENATE.  SENATOR PROXMIRE, THE
AUTHOR OF THE SENATE VERSION OF THE BILL, STATED: "(THE PURPOSE OF THE
BILL IS TO PROVIDE LAW ENFORCEMENT AUTHORITIES WITH GREATER EVIDENCE OF
FINANCIAL TRANSACTIONS IN ORDER TO REDUCE THE INCIDENCE OF WHITE-COLLAR
CRIME."  /2/  ID., AT 32627. 

CUSTOMERS HAVE A CONSTITUTIONALLY JUSTIFIABLE EXPECTATION OF PRIVACY
IN THE DOCUMENTARY DETAILS OF THE FINACIAL TRANSACTIONS REFLECTED IN
THEIR BANK ACCOUNTS.  THAT WALL IS NOT IMPREGNABLE.  OUR CONSTITUTION
PROVIDES THE PROCEDURES WHEREBY THE CONFIDENTIALITY OF ONE'S FINANCIAL
AFFAIRS MAY BE DISCLOSED. 

        A 

FIRST, AS TO THE RECORDKEEPING REQUIREMENTS, /3/  THEIR ANNOUNCED
PURPOSE IS THAT THEY WILL HAVE "A HIGH DEGREE OF USEFULNESS IN
CRIMINAL, TAX, OR REGULATORY INVESTIGATIONS OR PROCEEDINGS,"  12 U.S.C.
1829B (A)(2), 1953 (A).  THE DUTY OF THE BANK OR INSTITUTION IS TO
MICROFILM OR OTHERWISE COPY EVERY CHECK, DRAFT, OR SIMILAR INSTRUMENT
DRAWN ON IT OR PRESENTED TO IT FOR PAYMENT AND TO KEEP A RECORD OF EACH
ONE "RECEIVED BY IT FOR DEPOSIT OR COLLECTION,"  12 U.S.C. 1829B (D)(1)
AND (2).  THE RETENTION IS FOR UP TO SIX YEARS UNLESS THE SECRETAY
DETERMINES THAT "A LONGER PERIOD IS NECESSARY," 12 U.S.C. 1829B (G). 
THE REGULATIONS /4/  ISSUED BY THE SECRETARY SHOW THE DEPTH AND EXTENT
OF THE QUICKSAND IN WHICH OUR FINANCIAL INSTITUTIONS MUST NOW OPERATE. 
/5/ 

IT IS ESTIMATED THAT A MINIMUM OF 20 BILLION CHECKS--AND PERHAPS 30
BILLION--WILL HAVE TO BE PHOTOCOPIED AND THAT THE WEIGHT OF THESE
LITTLE PIECES OF PAPER WILL APPROXIMATE 166 MILLION POUNDS A YEAR. 
/6/ 

IT WOULD BE HIGHLY USEFUL TO GOVERNMENTAL ESPIONAGE TO HAVE LIKE
REPORTS FROM ALL OUR BOOKSTORES, ALL OUR HARDWARE AND RETAIL STORES,
ALL OUR DRUGSTORES.  THESE RECORDS TOO MIGHT BE "USEFUL" IN CRIMINAL
INVESTIGATIONS. 

ONE'S READING HABITS FURNISH TELLTALE CLUES TO THOSE WHO ARE BENT ON
BENDING US TO ONE POINT OF VIEW.  WHAT ONE BUYS AT THE HARDWARE AND
RETAIL STORES MAY FURNISH CLUES TO POTENIAL USES OF WIRES, SOAP
POWDERS, AND THE LIKE USED BY CRIMINALS.  A MANDATORY RECORDING OF ALL
TELEPHONE CONVERSATIONS WOULD BE BETTER THAN THE RECORDING OF CHECKS
UNDER THE BANK SECRECY ACT, IF BIG BROTHER IS TO HAVE HIS WAY.  THE
RECORDS OF CHECKS--NOW AVAILABLE TO THE INVESTIGATORS--ARE HIGHLY
USEFUL.  IN A SENSE A PERSON IS DEFINED BY THE CHECKS HE WRITES.  BE
EXAMINING THEM THE AGENTS GET TO KNOW HIS DOCTORS, LAWYERS, CREDITORS,
POLITICAL ALLIES, SOCIAL CONNECTIONS, RELIGIOUS AFFILIATION,
EDUCATIONAL INTERESTS, THE PAPERS AND MAGAZINES HE READS, AND SO ON AD
INFINITUM.  THESE ARE ALL TIED TO ONE'S SOCIAL SECURITY NUMBER; AND NOW
THAT WE HAVE THE DATA BANKS, THESE OTHER ITEMS WILL ENRICH THAT
STOREHOUSE AND MAKE IT POSSIBLE FOR A BUREAUCRAT--BY PUSHING ONE BUTTON
-TO GET IN AN INSTANT THE NAMES OF THE 190 MILLION AMERICANS WHO ARE
SUBVERSIVES OR POTENTIAL AND LIKELY CANDIDATES. 

IT IS, I SUBMIT, SHEER NONSENSE TO AGREE WITH THE SECRETARY THAT ALL
BANK RECORDS OF EVERY CITIZEN "HAVE A HIGH DEGREE OF USEFULNESS IN
CRIMINAL, TAX, OR REGULATORY INVESTIGATIONS OR PROCEEDINGS."  THAT IS
UNADULTERATED NONSENSE UNLESS WE ARE TO ASSUME THAT EVERY CITIZEN IS A
CROOK, AN ASSUMPTION I CANNOT MAKE.     SINCE THE BANKING TRANSACTIONS
OF AN INDIVIDUAL GIVE A FAIRLY ACCURATE ACCOUNT OF HIS RELIGION,
IDEOLOGY, OPINIONS, AND INTERESTS, A REGULATION IMPOUNDING THEM AND
MAKING THEM AUTHOMATICALLY AVAILABLE TO ALL FEDERAL INVESTIGATIVE
AGENCIES IS A SLEDGE-HAMMER APPROACH TO A PROBLEM THAT ONLY A DELICATE
SCAPLEL CAN MANAGE.  WHERE FUNDAMENTAL PERSONAL RIGHTS ARE INVOLVED--AS
IS TRUE WHEN AS HERE THE GOVERNMENT GETS LARGE ACCESS TO ONE'S BELIEFS,
IDEAS, POLITICS, RELIGION, CULTURAL CONCERNS, AND THE LIKE--THE ACT
SHOULD BE "NARROWLY DRAWN" (CANTWELL V. CONNECTICUT, 310 U.S. 296, 307)
TO MEET THE PRECISE EVIL.  /7/  BANK ACCOUNTS AT TIMES HARBOR CRIMINAL
PLANS.  BUT WE ONLY RUSH WITH THE CROWD WHEN WE VENT ON OUR BANKS AND
THEIR CUSTOMERS THE DEVASTATING AND LEVELING REQUIREMENTS OF THE
PRESENT ACT.  I AM NOT YET READY TO AGREE THAT AMERICA IS SO POSSESSED
WITH EVIL THAT WE MUST LEVEL ALL CONSTITUTIONAL BARRIERS TO GIVE OUR
CIVIL AUTHORITIES THE TOOLS TO CATCH CRIMINALS. 

HERETOFORE THIS NATION HAS CONFINED COMPULSORY RECORDKEEPING TO THAT
REQUIRED TO MONITOR EITHER (1) THE RECORDKEEPER, OR (2) HIS BUSINESS. 
MARCHETTI V. UNITED STATES, 390 U.S. 39, AND UNITED STATES V. DARBY,
312 U.S. 100, ARE ILLUSTRATIVE.  EVEN THEN, AS MR. JUSTICE HARLAN
WRITING FOR THE COURT SAID, THEY MUST BE RECORDS THAT WOULD
"CUSTOMARILY" BE KEPT, HAVE A "PUBLIC" RATHER THAN A PRIVATE PURPOSE,
AND ARISE OUT OF AN "'ESSENTIALLY NONCRIMINAL AND REGULATORY AREA OF
INQUIRY.'"  MARCHETTE V. UNITED STATES, SUPRA, AT 57. 

THOSE REQUIREMENTS ARE IN NO WAY SATISFIED HERE, AND YET THERE IS
SADDLED UPON THE BANKS OF THIS NATION AN ESTIMATED BILL OF OVER $6
MILLION A YEAR TO SPY ON THEIR CUSTOMERS. 

     B 

SECOND, AS TO THE REPORTING PROVISIONS OF THE ACT, THEY REQUIRE
DISCLUSURE OF TWO TYPES OF FOREIGN FINANCIAL TRANSACTIONS AND
RELATIONSHIPS.  ONE PROVISION REQUIRES A REPORT OF TRANSPORTATION INTO
OR OUT OF THE COUNTRY OF MONETARY INSTRUMENTS EXCEEDING $5,000.  /8/
ANOTHER REQUIRES PARTIES TO ANY TRANSACTION OR RELATIONSHIP WITH "A
FOREIGN FINANCIAL AGENCY" TO MAKE SUCH REPORTS OR MAKE AND KEEP SUCH
RECORDS AS THE SECRETARY MAY REQUIRE.  /9/  CIVIL /10/  AND CRIMINAL
/11/  PENALTIES ARE SANCTIONS BEHIND THESE REPORTING PROVISIONS. 

THE ACT ALSO REQUIRES THE SECRETARY TO MAKE THE REPORTED INFORMATION
CONCERNING TRANSACTION "AVAILABLE FOR A PURPOSE CONSISTENT WITH THE
PROVISIONS OF THIS CHAPTER TO ANY OTHER DEPARTMENT OR AGENCY OF THE
FEDERAL GOVERNMENT" UPON REQUEST.  /12/  AND TO OVERCOME ANY CLAIMS OF
SELF-INCRIMINATION IT REQUIRES THE GRANT OF USE IMMUNITY.  /13/ 

AS RESPECTS DOMESTIC TRANSACTIONS THE SECRETARY ESTABLISHED TWO
REPORTING REQUIREMENTS.  (1) ROUTINE REPORTS ARE, WITH SOME EXCEPTIONS,
REQUIRED CONCERNING ANY TRANSACTION OF MORE THAN $10,000 IN CURRENCY
FROM EACH FINANCIAL INSTITUTION INVOLVED.  /14/  THE SIGNATURE OF AT
LEAST ONE PRINCIPAL PARTY TO THE TRANSACTION IS REQUIRED.  /15/  (2)
THE SECRETARY AT THE TIME OF THE TRIAL RESERVED THE RIGHT TO GRANT
EXEMPTIONS FROM THE REQUIREMENTS, IMPOSE ADDITIONAL RECORDKEEPING OR
REPORTING REQUIREMENTS AUTHORIZED BY STATUTE, OR OTHERWISE MODIFY, THE
REQUIREMENTS OF THIS PART.  /16/ 

WE SAID IN KATZ V. UNITED STATES, 389 U.S. 347, 351 - 352:  "WHAT A
PERSON KNOWINGLY EXPOSES TO THE PUBLIC, EVEN IN HIS OWN HOME OR OFFICE,
IS NOT A SUBJECT OF FOURTH AMENDMENT PROTECTION.  . . BUT WHAT HE SEEKS
TO PRESERVE AS PRIVATE, EVEN IN AN AREA ACCESSIBLE TO THE PUBLIC, MAY
BE CONSTITUTIONALLY PROTECTED."  AS STATED IN THE UNITED STATES V.
WHITE, 401 U.S. 745, 752,THE QUESTION IS "WHAT EXPECTATIONS OF PRIVACY"
WILL BE PROTECTED BY THE FOURTH AMENDMEN"IN THE ABSENCE OF A WARRANT." 
A SEARCH AND SEIZURE CONDUCTED WITHOUT A WARRANT IS PER SE
UNREASONALBLE SUBJECT TO "JEALOUSLY AND CAREFULLY DRAWN" EXCEPTIONS,
JONES V. UNITED STATES, 357 U.S. 793, 499.  ONE'S BANK ACCOUNTS ARE
WITHIN THE "EXPECTATIONS OF PRIVACY"  CATEGORY.  FOR THEY MIRROR NOT
ONLY ONE'S FINANCES BUT HIS INTERESTS, HIS DEBTS, HIS WAY OF LIFE, HIS
FAMILY, AND HIS CIVIC COMMITMENTS.  THERE ARE ADMINISTRATIVE SUMMONSES
FOR DOCUMENTS, CF. CAMARA V. MUNICIPAL COURT, 387 U.S. 523; SEE V. CITY
OF SEATTLE, 387 U.S. 541.  BUT THERE IS A REQUIREMENT THAT THEIR
ENFORCEMENT RECEIVE JUDICIAL SCRUTINY AND A JUDICIAL ORDER, UNITED
STATES V. U.S. DISTRICT COURT, 407 U.S. 297, 313 - 318.  AS WE SAID IN
THAT CASE, "THE FOURTH AMENDMENT DOES NOT CONTEMPLATE THE EXECUTIVE
OFFICERS OF GOVERNMENT AS NEUTRAL AND DISINTERESTED MAGISTRATES.  THEIR
DUTY AND RESPONSIBILITY ARE TO ENFORCE THE LAWS, TO INVESTIGATE, AND TO
PROSECUTE.  . . BUT THOSE CHARGED WITH THIS INVESTIGATIVE AND
PROSECUTORIAL DUTY SHOULD NOT BE THE SOLE JUDGES OF WHEN TO UTILITZE
CONSTITUTIONALLY SENSITIVE MEANS IN PURSUING THEIR TASKS.  THE
HISTORICAL JUDGMENT, WHICH THE FOURTH AMENDMENT ACCEPTS, IS THAT
UNREVIEWED EXECUTIVE DISCRETION MAY YIELD TOO READILY TO PRESSURES TO
BOTAIN INCRIMINATING EVIDENCE AND OVERLOOK POTENTIAL INVASION OF
PRIVACY AND PROTECTED SPEECH."  ID., AT 317. 

SUPPOSE CONGRESS PASSED A LAW REQUIRING TELEPHONE COMPANIES TO
RECORD AND RETAIN ALL TELEPHONE CALLS AND MAKE THEM AVAILABLE TO ANY
FEDERAL AGENCY ON REQUEST.  WOULD WE HESITATE EVEN A MONENT BEFORE
STRIKING IT DOWN?  I THINK NOT, FOR WE CONDEMNED IN UNITED STATES V.
U.S. DISTRICT COURT "THE BROAD AND UNSUSPECTED GOVERNMENTAL INCURSIONS
INTO CONVERSATIONAL PRIVACY WHICH ELECTRONIC SURVEILLANCE ENTAILS." 
ID., AT 313. 

A CHECKING ACCOUNT, AS I HAVE SAID, MAY WELL RECORD A CITIZEN'S
ACTIVITIES, OPINION, AND BELIEFS AS FULLY AS TRANSCRIPTS OF HIS
TELEPHONE CONVERSATIONS. 

THE FOURTH AMENDMENT WARRANT REQUIREMENTS MAY BE REMOVED BY
CONSTITUTIONAL AMENDMENT BUT THEY CERTAINLY CANNOT BE REPLACED BY THE
SECRETARY OF THE TREASURY'S FINDING THAT CERTAIN INFORMATION WILL BE
HIGHLY USEFUL IN "CRIMINAL, TAX, OR REGULATORY INVESTIGATIONS OR
PROCEEDINGS."  12 U.S.C. 1951 (B). 

WE CANNOT AVOID THE QUESTION OF THE CONSTITUTIONALITY OF THE
REPORTING PROVISIONS OF THE ACT AND OF THE REGULATIONS BY SAYING THEY
HAVE NOT YET BEEN APPLIED TO A CUSTOMER IN ANY CRIMINAL CASE.  UNDER
THE ACT AND REGULATIONS THE REPORTS GO FORWARD TO THE INVESTIGATIVE OR
PROSECUTING AGENCY ON WRITTEN REQUEST WITHOUT NOTICE TO THE CUSTOMER. 
DELIVERY OF THE RECORDS WITHOUT THE REQUISITE HEARING OF PROBABLE CAUSE
/17/  BREACHES THE FOURTH AMENMENT. 

I ALSO AGREE IN SUBSTANCE WITH MY BROTHER BRENNAN'S VIEW THAT THE
GRANT OF AUTHORITY BY CONGRESS TO THE SECRETARY OF THE TREASURY IS TOO
BROAD TO PASS CONSTITUTIONAL MUSTER.  THIS LEGISLATION IS SYMPTOMATIC
OF THE SLOW EXLIPSE OF CONGRESS BY THE MOUNTING EXECUTIVE POWER.  THE
PHENOMENON IS NOT BRAND NEW.  IT WAS REFLECTED IN SCHECHTER CORP. V.
UNITED STATES, 295 U.S. 495.  UNITED STATES V. ROBEL, 389 U.S. 258, IS
A MORE RECENT EXAMPLE.  NATIONAL CABLE TELEVISION ASSN. V. UNITED
STATES, 415 U.S. 336, AND FPC V. NEW ENGLAND POWER CO., 415 U.S. 345,
ARE EVEN MORE RECENT.  THESE OMNIBUS GRANTS OF POWER ALLOW THE
EXECUTIVE BRANCH TO MAKE THE LAW AS IT CHOOSES IN VIOLATION OF THE
TEACHINGS OF YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579, AS
WELL AS SCHECHTER, THAT LAWMAKING IS A CONGRESSIONAL, NOT AN EXECUTIVE,
FUNCTION. 

/1/  THE HOUSE REPORT, NO. 91 -975, P. 10, STATES:  "PETTY
CRIMINALS, MEMBERS OF THE UNDERWORLD, THOSE ENGAGING IN 'WHITE COLLAR'
CRIME AND INCOME TAX EVADERS USE, IN ONE WAY OR ANOTHER, FINANCIAL
INSTITUTIONS IN CARRYING ON THEIR AFFAIRS." 

THAT WAS THE REASON FOR REQUIRING THE REPORT OF LARGE DOMESTIC CASH
TRANSACTION.  "CRIMINALS DEAL IN MONEY--CASH OR ITS EQUIVALENT.  THE
DEPOSIT AND WITHDRAWAL OF LARGE AMOUNTS OF CURRENCY OR ITS EQUIVALENT
(MONETARY INSTRUMENTS) UNDER UNUSUAL CIRCUMSTANCES MAY BETRAY A
CRIMINAL ACTIVITY.  THE MONEY IN MANY OF THESE TRANSACTIONS MAY
REPRESENT ANYTHING FROM THE PROCEEDS OF A LOTTERY RACKET TO MONEY FOR
THE BRIBERY OF PUBLIC OFFICIALS."  ID., AT 11. 

A SPONSOR ON THE FLOOR OF THE HOUSE STATED: "WITH RESPECT TO FULL
FINANCIAL RECORDKEEPING, THE PROBLEM CAN BE SIMPLY STATED; IN THE PAST
DECADE, AS ORGANIZED CRIME AND CRIMINALS HAVE BECOME MORE
SOPHISTICATED, MORE AND GREATER USE HAS BEEN MADE BY CRIMINAL ELEMENTS
OF OUR NATION'S FINANCIAL INSTITUTIONS.  LAW ENFORCEMENT OFFICIALS
BELIEVE THAT AN EFFECTIVE ATTACK ON ORGANIZED CRIME REQUIRES THE
MAINTENANCE OF ADEQUATE AND APPROPRIATE RECORDS BY FINANCIAL
INSTITUTIONS."  116 CONG. REC. 16950. 

CONGRESSMAN PATMAN, AUTHOR OF THE BILL, STATED: "THIS IS REALLY A
BILL WHICH, IF ENACTED INTO LAW, WILL BE THE LONGEST STEP IN THE
DIRECTION OF STOPPING CRIME THAN ANY OTHER WE HAVE HAD BEFORE THIS
CONGRESS IN A LONG TIME."  ID., AT 16951. 

WHILE IT STARTED WITH A DEFFERENT OBJECTIVE, IT WAS CHANGED TO SERVE
AN ADDITIONAL PURPOSE: "WE ALSO DISCOVERED THAT SECRET FOREIGN BANK
ACCOUNTS WERE NOT THE ONLY CRIMINAL ACTIVITIES RELATED TO THE BANKING
FIELD.  THE MAJOR LAW ENFORCEMENT AUTHORITY--THE JUSTICE DEPARTMENT--OF
THE U.S. GOVERNMENT CALLED OUR ATTENTION TO THE URGENT NEED FOR
REGULATIONS WHICH WOULD MAKE UNIFORM AND ADEQUATE THE PRESENT
RECORDKEEPING PRACTICES, OR LACK OF RECORDKEEPING PRACTICES, BY
DOMESTIC BANKS AND OTHER FINANCIAL INSTITUTIONS."  ID., AT 16952. 

/2/  THE SENATE REPORT, NO. 91 - 1139, IS REPLETE WITH THE SAME
PHILOSOPHY.  SEE PP. 1, 5, 7, 8. 

/3/  THE ACT AUTHORIZES THE SECRETARY TO ISSUE REGULATIONS TO CARRY
OUT ITS PURPOSES, 12 U.S.C. 1829B (B).  IT DID EMPOWER HIM TO DEFINE
INSTITUTIONS OR PERSONS AFFECTED, 12 U.S.C. 1953 (A), (B)(5), TO MAKE
EXCEPTIONS, EXEMPTIONS, OR OTHER SPECIAL ARRANGEMENTS, 12 U.S.C. 1829B
(C), (F); TO SEEK INJUNCTIONS, 12 U.S.C. 1954; AND TO ASSESS AND
COLLECT CIVIL PENALTIES, 12 U.S.C. 1955. 

/4/  TITLE 31 CFR 103.34 PROVIDED THAT BANKS SHALL: 

"(A) . . . SECURE AND MAINTAIN RECORD OF THE TAXPAYER IDENTIFICATION
NUMBER OF THE PERSON MAINTAINING THE ACCOUNT; OR IN THE CASE OF AN
ACCOUNT OF ONE OR MORE INDIVIDUALS, SUCH BANK SHALL SECURE AND MAINTAIN
A RECORD OF THE SOCIAL SECURITY NUMBER OF AN INDIVIDUAL HAVING A
FINANCIAL INTEREST IN THAT ACCOUNT. 

"(B) EACH BANK SHALL, IN ADDITION, RETAIN EITHER THE ORIGINAL OR A
MICROFILM OR OTHER COPY OR REPRODUCTION OF EACH OF THE FOLLOWING: 

"(1) EACH DOCUMENT GRANTING SIGNATURE AUTHORITY OVER EACH DEPOSIT OR
SHARE ACCOUNT; 

"(2) EACH STATEMENT, LEDGER CARD OR OTHER RECORD ON EACH DEPOSIT OR
SHARE ACCOUNT, SHOWING EACH TRANSACTION IN, OR WITH RESPECT TO, THAT
ACCOUNT; 

"(3) EACH CHECK, CLEAN DRAFT, OR MONEY ORDER DRAWN ON THE BANK OR
ISSUED AND PAYABLE BY IT, EXCEPT THOSE DRAWN ON ACCOUNTS WHICH CAN BE
EXPECTED TO HAVE DRAWN ON THEM AN AVERAGE OF AT LEAST 100 CHECKS PER
MONTH OVER THE CALENDAR YEAR OR ON EACH OCCASION ON WHICH SUCH CHECKS
ARE ISSUED, AND WHICH ARE (I) DIVIDEND CHECKS, (II) PAYROLL CHECKS,
(III) EMPLOYEE BENEFIT CHECKS, (IV) INSURANCE CLAIM CHECKS, (V) MEDICAL
BENEFIT CHECKS, (VI) CHECKS DRAWN ON GOVERNMENTAL AGENCY ACCOUNTS,
(VII) CHECKS DRAWN BY BROKERS OR DEALERS IN SECURITIES, (VIII) CHECKS
DRAWN ON FIDUCIARY ACCOUNTS, (IX) CHECKS DRAWN ON OTHER FINANCIAL
INSTITUTIONS, OR (X) PENSION OR ANNUITY CHECKS; 

"(4) EACH ITEM OTHER THAN BANK CHARGES OR PERIODIC CHARGES MADE
PURSUANT TO AGREEMENT WITH THE CUSTOMER, COMPRISING A DEBIT TO A
CUSTOMER'S DEPOSIT OR SHARE ACCOUNT, NOT REQUIRED TO BE KEPT, AND NOT
SPECIFICALLY EXEMPTED, UNDER SUBPARAGRAPH (B)(3) OF THIS SECTION; 

"(5) EACH ITEM, INCLUDING CHECKS, DRAFTS, OR TRANSFERS OF CREDIT, OF
MORE THAN $10,000 REMITTED OR TRANSFERRED TO A PERSON, ACCOUNT OR PLACE
OUTSIDE THE UNITED STATES; 

"(6) A RECORD OF EACH REMITTANCE OR TRANSFER OF FUNDS, OR OF
CURRENCY, OTHER MONETARY INSTRUMENTS, CHECKS, INVESTMENT SECURITIES, OR
CREDIT, OF MORE THAN $10,000 TO A PERSON, ACCOUNT OR PLACE OUTSIDE THE
UNITED STATES; 

"(7) EACH CHECK OR DRAFT IN AN AMOUNT IN EXCESS OF $10,000 DRAWN ON
OR ISSUED BY A FOREIGN BANK, PURCHASED, RECEIVED FOR CREDIT OR
COLLECTION, OR OTHERWISE ACQUIRED BY THE BANK; 

"(8) EACH ITEM, INCLUDING CHECKS, DRAFTS OR TRANSFERS OF CREDIT, OF
MORE THAN $10,000 RECEIVED DIRECTLY AND NOT THROUGH A DOMESTIC
FINANCIAL INSTITUTION, BY LETTER, CABLE OR ANY OTHER MEANS, FROM A
PERSON, ACCOUNT OR PLACE OUTSIDE THE UNITED STATES; 

"(9) A RECORD OF EACH RECEIPT OF CURRENCY, OTHER MONETARY
INSTRUMENTS, CHECKS, OR INVESTMENT SECURITIES, AND OF EACH TRANSFER OF
FUNDS OR CREDIT, OF MORE THAN $10,000 RECEIVED ON ANY ONE OCCASION
DIRECTLY AND NOT THROUGH A DOMESTIC FINANCIAL INSTITUTION, FROM A
PERSON, ACCOUNT OR PLACE OUTSIDE THE UNITED STATES; AND 

"(10) RECORDS PREPARED OR RECEIVED BY A BANK IN THE ORDINARY COURSE
OF BUSINESS, WHICH WOULD BE NEEDED TO RECONSTRUCT A DEMAN DEPOSIT
ACCOUNT AND TO TRACE A CHECK DEPOSITED IN SUCH ACCOUNT THROUGH ITS
DOMESTIC PROCESSING SYSTEM OR TO SUPPLY A DESCRIPTION OF A DEPOSITED
CHECK.  THIS SUBPARAGRAPH SHALL BE APPLICABLE ONLY WITH RESPECT TO
DEMAND DEPOSTIS."  37 FED. REG. 6914. 

DURING THIS LITIGATION THE ABOVE PROVISION WAS AMENDED BY THE
SECRETARY MAKING IT UNNECESSARY TO MICROFILM COPIES OF CHECKS "DRAWN
FOR $100 OR LESS," 31 CFR 103.34 (B)(3) (1973).  SINCE BANKS MUST COPY
ALL CHECKS IT IS HARD TO SEE HOW THIS NEW EXEMPTION IS MEANINGFUL. 

/5/  LIKE REQUIREMENTS ARE PLACED ON BROKERS AND DEALERS IN
SECURITIES, 31 CFR 103.35. 

/6/  HEARINGS ON FOREIGN BANK SECRECY AND BANK RECORDS (H.R. 15073)
BEFORE THE HOUSE COMMITTEE ON BANKING AND CURRENCY, 91ST CONG., 1ST AND
2D SESS., 320 (169 - 1970). 

/7/  AND SEE ROE V. WADE, 410 U.S. 113, 155; POLICE DEPT. OF CHICAGO
V. MOSLEY, 408 U.S. 92, 101; GOODING V. WILSON, 405 U.S. 518, 522;
SHUTTLESWORTH V. BIRMINGHAM, 394 U.S. 147, 151; CAMERON V. JOHNSON, 390
U.S. 611, 617; ZWICKLER V. KOOTA, 389 U.S. 241, 250; WHITEHILL V.
ELKINS, 389 U.S. 54, 62; ASHTON V. KENTUCKY, 384 U.S. 195, 201;
ELFBRANDT V. RUSSELL, 384 U.S. 11, 18. 

THE SAME VIEW IS OFTEN EXPRESSED IN CONCURRING OPINIONS.  SEE DOE V.
BOTON, 410 U.S. 179, 216 (DOUGLAS, J., CONCURRING); GREGORY V. CHICAGO,
394 U.S. 111, 119 (BLACK, J., CONCURRING); UNITED STATES V. ROBEL, 389
U.S. 258, 270 (BRENNAN, J., CONCURRING IN RESULT).     /8/  31 U.S.C.
1101. 

/9/  31 U.S.C. 1121.  THE SECRETARY REQUIRES REPORTS IN YEARLY TAX
RETURNS OF ANY "FINANCIAL INTEREST IN, OR SIGNATURE OR OTHER AUTHORITY
OVER, A BANK, SECURITIES OR OTHER FINANCIAL ACCOUNT IN A FOREIGN
COUNTRY," 31 CFR 103.24. 

/10/  31 U.S.C. 1056, 1102 - 1102 - 1103: 31 CFR 103.47 - 103.48. 

/11/  31 U.S.C. 1058 - 1059; 31 CFR 103.49.     /12/  31 U.S.C.
1061.  THE REGULATIONS READ AS FOLLOWS: 

"THE SECRETARY MAY MAKE ANY INFORMATION SET FORTH IN ANY REPORT
RECEIVED PURSUANT TO THIS PART AVAILABLE TO ANY OTHER DEPARTMENT OR
AGENCY OF THE UNITED STATES UPON THE REQUEST OF THE HEAD OF SUCH
DEPARTMENT OR AGENCY, MADE IN WRITING AND STATING THE PARTICULAR
INFORMATION DESIRED, THE CRIMINAL, TAX OR REGULATORY INVESTIGATION OR
PROCEEDING IN CONNECTION WITH WHICH THE INFORMATION IS SOUGHT AND THE
OFFICAIL NEED THEREFOR."  31 CFR 103.43. 

/13/  31 U.S.C. 1060.  THE COURT IN DASTIGAR V. UNITED STATES, 406
U.S. 441, HELD THAT "USE IMMUNITY" SATISFIES THE SELF-INCRIMINATION
CLAUSE OF THE FIFTH AMENDMENT.  I DISAGREED THEN AND PERSIST IN MY VIEW
THAT IT IS "TRANSACTIONAL" IMMUNITY, NOT "USE" IMMUNITY, THAT IS
REQUIRED TO LIFT THIS CONSTITUTIONAL PROTECTION.  SEE ID., AT 462 - 467
(DISSENTING OPINION).  BUT SINCE "USE" IMMUNITY IS "THE LAW" OF THE
PRESENT COURT--THOUGH I DOUBT IF IT CAN LONG SURVIVE--I DO NOT WRITE
THIS DISSENT AGAINST THE NARROW IMMUNITY THAT IS GRANTED. 

/14/  31 CFR 103.22. 

/15/  31 U.S.C. 1082. 

/16/  AT THAT TIME 31 CFR 103.45 READ AS FOLLOWS: "(A) THE
SECRETARY, IN HIS SOLE DISCRETION, MAY BE WRITTEN ORDER OR
AUTHORIZATION MAKE EXCEPTIONS TO, GRANT EXEMPTIONS FROM, IMPOSE
ADDITIONAL RECORDKEEPING OR REPORTING REQUIREMENTS AUTHORIZED BY
STATUTE, OR OTHERWISE MODIFY, THE REQUIREMENTS OF THIS PART.  SUCH
EXCEPTIONS EXEMPTIONS, REQUIREMENTS OR MODIFICATIONS MAY BE CONDITIONAL
OR UNCONDITIONAL, MAY APPLY TO PARTICULAR PERSONS OR TO CLASSES OF
PERSONS, AND MAY APPLY TO PARTICULAR TRANSACTIONS OR CLASSES OF
TRANSACTION.  THEY SHALL, HOWEVER, BE APPLICABLE ONLY AS EXPRESSLY
STATED IN THE ORDER OR AUTHORIZATION, AND THEY SHALL BE REVOCABLE IN
THE SOLE DISCRETION OF THE SECRETARY. 

"(B) THE SECRETARY SHALL HAVE THE AUTHORITY TO FURTHER DEFINE ALL
TERMS USED HEREIN." 

SINCE THEN, THE LANGUAGE "IMPOSE ADDITIONAL RECORDKEEPING OR
REPORTING REQUIREMENTS AUTHORIZED BY STATUTE, OR OTHERWISE MODIFY"  HAS
BEEN DELETED FROM 103.45. 

/17/  A CRIMINAL PROSECUTION IN THIS COUNTRY FOR NOT REPORTING AN
OVERSEAS TRANSACTION IS STILL A CRIMINAL PROSECUTION UNDER THE BILL OF
RIGHTS; AND TO THESE THE FOURTH AMENDMENT HAS BEEN APPLICABLE FROM THE
BEGINNING.  CASES OF IMMIGRATION OFFICERS STOPPING PEOPLE AT THE BORDER
WHO ARE LEAVING OR ENTERING THE COUNTRY ARE OBVIOUSLY INAPPOSITE AND
CERTAINLY THE COURT CANNOT BE SERIOUS IN SAYING THAT THE MONETARY VALUE
OF THE ARTICLE BEING SEIZED IS RELEVANT TO WHETHER THE SEARCH AND
SEIZURE WITHOUT A WARRANT WAS CONSTITUTIONAL.  AS SAID IN KATZ IT IS
"PERSONS" NOT "PLACES" THAT THE FOURTH AMENDMENT PROTECTS; AND IT WOULD
LABOR THE POINT TO ENGAGE IN LENGTHY ARGUMENT THAT "THINGS" AS WELL AS
"PLACES" ARE NOT THE OBJECT OF THE FOURTH AMENDMENT'S CONCERNS. 

MR. JUSTICE BRENNAN, DISSENTING I CONCUR IN PARTS I AND II-A OF MR.
JUSTICE DOUGLAS'  OPINION.  AS TO THE ACT'S FOREIGN AND DOMESTIC
REPORTING REQUIREMENTS, HOWEVER, I SEE NO NEED TO ADDRESS THE
INDEPENDENT CONSTITUTIONAL OBJECTIONS THE PLAINTIFFS BELOW ATTEMPT TO
RAISE.  THE REPORTING REQUIREMENTS ARE INSEPARABLE FROM--AND IN SOME
CASES CONSIDERABLY BROADER THAN--THE RECORDKEEPING REQUIREMENTS.  THUS,
SINCE IN MY VIEW THE RECORDKEEPING PROVISIONS UNCONSTITUTIONALLY VEST
IMPERMISSIBLY BROAD AUTHORITY IN SECRETARY OF THE TREASURY, SEE UNITED
STATES V. ROBEL, 389 U.S. 258, 269 (1967) (BRENNAN, J., CONCURRING IN
RESULT), THE REPORTING PROVISIONS, TOO, ARE INVALID. 

THE SYMBIOTIC NATURE OF THE RECORDKEEPING AND REPORTING REQUIREMENTS
IS CLEARLY MANIFESTED IN THE EXPRESSIONS OF CONGRESSIONAL PURPOSE FOUND
IN 12 U.S.C. 1951 (B) AND 31 U.S.C. 1051, WHICH LAW DOWN BLANKET
COMMANDS THAT "RECORDS" AND "REPORTS" BE REQUIRED WHERE THEY "HAVE A
HIGH DEGREE OF USEFULNESS IN CRIMINAL, TAX, OR REGULATORY
INVESTIGATIONS OR PROCEEDINGS." 

ONE EXAMPLE OF THIS ITNERDEPENDENCE MAY BE FOUND IN 12 U.S.C. 1951 -
1953, WHICH APPLY TO "ANY UNINSURED BANK OR UNINSURED INSTITUTION,"
TERMS WHICH ARE THEMSELVES NOT DEFINED IN THE ACT.  SECTION 1953
AUTHORIZES THE SECRETARY TO REQUIRE THE KEEPING OF "ANY RECORDS OR
EVIDENCE OF ANY TYPE" SO LONG AS HE MAY REQUIRE THEM OF INSURED BANKS. 
REPORTS BY UNINSURED BANKS OR UNINSURED INSTITUTIONS OF ANY TYPE WITH
RESPECT TO THEIR OWNERSHIP, CONTROL, AND MANAGEMENTS AND ANY CHANGES
THEREIN."  AS APPEARS FROM THE LEGISLATIVE HISTORY, THESE PROVISIONS
WORK IN TANDEM, PERMITTING THE SECRETARY TO DETECT INSTANCES OF THE USE
OF SHAM OR ILLEGAL TRANSACTIONS IN WHICH THE INSTITUTIONAL PARTY IS
MERELY AN ALTER EGO OF THE CUSTOMER IT PURPORTEDLY SERVICES.  SEE S.
REP. NO. 91 - 1139, P. 3 (1970); HEARINGS ON FOREIGN BANK SECRECY AND
BANK RECORDS (H.R. 15073) BEFORE THE HOUSE COMMITTEE ON BANKING AND
CURRENCY, 91ST CONG., 1ST AND 2D SESS., 10 - 14 (1969 - -1970). 
NEITHER PROVISION WOULD USEFULLY AID THE DETECTION OF SUCH PRACTICES
WITHOUT THE OTHER. 

NOT ONLY ARE THE REPORTING AND RECORDKEEPING REQUIREMENTS
FUNCTIONALLY INSEPARABLE, BUT THE REPORTING PROVISIONS IMPOSE
ADDITIONAL REQUIREMENTS, THUS ADDING TO THE POWER OF THE SECRETARY TO
INVADE INDIVIDUAL RIGHTS.  FOR INSTANCE, THE REPORTING REQUIREMENT FOR
ALL TRANSACTIONS INVOLVING DOMESTIC FINANCIAL INSTITUTIONS, 31 U.S.C.
1081, AUTHORIZES THE SECRETARY TO REQUIRE REPORTS AT ANY TIME AND IN
ANY MANNER AND DETAIL, OF ANY TRANSACTION THAT INVOLVES THE "PAYMENTS,
RECEIPT, OR TRANSFER OF UNITED STATES CURRENCY, OR SUCH OTHER MONETARY
INSTRUMENTS AS THE SECRETARY MAY SPECIFY."  ALTHOUGH THE SECRETARY HAS
BY REGULATION LIMITED THE MEANING OF "MONETARY INSTRUMENTS," 31 CFR
103.11, AND INVOKED THE SECTION ONLY WHERE THE TRANSACTION INVOLVES
MORE THAN $10,000, SEE 31 CFR 103.22, THIS IN NO WAY ALTERS THE
FUNDAMENTAL VICE OF THE STATUTE. 

THAT VICE, SEE CONCURRING OPINION IN UNITED STATES V. ROBEL, SUPRA,
IS THE DELEGATION OF POWER TO THE SECRETARY IN BROAD AND INDEFINITE
TERMS UNDER A STUTUTE THAT LAYS DOWN CRIMINAL SANCTIONS AND POTENTIALLY
AFFECTS FUNDAMENTAL RIGHTS.  SEE BANTAM BOOKS, INC. V. SULLIVAN, 372
U.S. 58 (1963); CANTWELL V. CONNECTICUT, 310 U.S. 296, 304 - 307
(1940).  MY VIEW IN ROBEL APPLIES HERE: 

"FORMULATION OF POLICY IS A LEGISLATURE'S PRIMARY REPOSIBILITY,
ENTRUSTED TO IT BY THE ELECTORATE, AND TO THE EXTENT CONGRESS DELEGATES
AUTHORITY UNDER INDEFINITE STANDARDS, THIS POLICY-,MAKING FUNCTION IS
PASSED ON TO OTHER AGENCIES, OFTEN NOT ANSWERABLE OR RESPONSIVE IN THE
SAME DEGREE TO THE PEOPLE.  '(STANDARDS OF PERMISSIBLE STATUTORY
VAGUENESS ARE STRICT . . .'  IN PREOTECTED AREAS.  NAACP V. BUTTON, 371
U.S., AT 432.  'WITHOUT EXPLICIT ACTION BY LAWMAKERS, DECISIONS OF
GREAT CONSTITUTIONAL IMPORT AND EFFECT WOULD BE RELEGATED BY DEFAULT TO
ADMINISTRATORS WHO, UNDER OUR SYSTEM OF GOVERNMENT, ARE NOT ENDOWED
WITH AUTHORITY TO DECIDE THEM.'  GREENE V. MCELROY, 360 U.S. 474,
507."  389 U.S., AT 276.  IN THE CASE OF THE BANK SECRECY ACT, ALSO
POTENTIALLY INVOLVING FIRST, FOURTH, AND FIFTH AMENDMENT RIGHTS OF THE
VAST MAJORITY OF OUR CITIZENRY, IT EXCEEDS CONGRESS'  CONSTITUTIONAL
POWER OF DELEGATION TO EMPOWER THE SECRETARY OF THE TREASURY TO REQUIRE
WHATEVER REPORTS AND RECORDS HE BELIEVES TO BE POSSESSED OF A "HIGH
DEGREE OF USEFULNESS" WHERE THE PURPOSE IS TO FURTHER "CRIMINAL, TAX,
OR REGULATORY INVESTIGATIONS OR PROCEEDINGS." 

MR. JUSTICE MARSHALL, DISSENTING 

ALTHOUGH I AM IN GENERAL AGREEMENT WITH THE OPINIONS OF MY BROTHERS
DOUGLAS AND BRENNAN, I BELIEVE IT IMPORTANT TO SET FORTH WHAT I VIEW AS
THE ESSENTIAL ISSUE IN THESE CASES. 

THE PURPOSES OF THE RECORDKEEPING REQUIREMENTS OF THE BANK SECRECY
ACT ARE CLEAR FROM THE LANGUAGE OF THE LEGISLATION ITSELF--TO REQUIRE
THE MAINTENANCE OF RECORDS WHICH WILL LATER BE AVAILABLE FOR
EXAMINATION BY THE GOVERNMENT IN "CRIMINAL, TAX, OR REGULATORY
INVESTIGATIONS OR PROCEEDINGS."  SEE 12 U.S.C. 1829B (A)(2) AND 1951
(B).  THE MAINTENANCE OF THE RECORDS IS THUS BUT THE INITAIL STEP IN A
PROCESS WHEREBY THE GOVERNMENT SEEKS TO ACQUIRE THE PRIVATE FINANCIAL
PAPERS OF THE MILLIONS OF INDIVIDUALS, BUSINESSES, AND ORGANIZATIONS
THAT MAINTAIN ACCOUNTS IN BANKS AND USE NEGOTIABLE INSTRUMENTS SUCH AS
CHECKS TO CARRY OUT THE FINANCIAL SIDE OF THEIR DAY-BY-DAY
TRANSACTIONS.  IN MY VIEW, THIS ATTEMPT TO ACQUIRE PRIVATE PAPEERS
CONSTITUTES A SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT. 

AS THIS COURT SETTLED LONG AGO IN BOYD V. UNITED STATES, 116 U.S.
616, 622 (1886), "A COMPULSORY PRODUCTION OF A MAN'S PRIVATE PAPERS TO
ESTABLISH A CRIMINAL CHARGE AGAINST HIM . . . IS WITHIN THE SCOPE OF
THE FOURTH AMENDMENT TO THE CONSTITUTION . . ."  THE ACQUISITION OF
RECORDS IN THIS CASE, AS WE SAID OF THE ORDER TO PRODUCE AN INVOICE IN
BOYD, MAY LACK THE "AGGRAVATING INCIDENTS OF ACTUAL SEARCH AND SEIZURE,
SUCH AS FORCIBLE ENTRY INTO A MAN'S HOUSE AND SEARCHING AMONGST HIS
PAPERS . . . ."  ID., AT 622, BUT THIS CANNOT CHANGE ITS INTRINSIC
CHARACTER AS A SEARCH AND SEIZURE.  WE DO WELL TO RECALL THE
ADMINISHMENT IN BOYD, ID., AT 635: 

"IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS MILDEST AND LEAST
REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL PROACTICES GET
THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT APPROACHES AND
SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE." 

BY COMPELLIONG AN OTHERWISE UNWILLING BANK TO PHOTOCOPY THE CHECKS
OF ITS CUSTOMERS, THE GOVERNMENT HAS AS MUCH OF A HAND IN SEIZING THOSE
CHECKS AS IF IT HAD FORCED A PRIVATE PERSON TO BREAK INTO THE
CUSTOMER'S HOME OR OFFICE AND PHOTOCOPY THE CHECKS THERE.  SEE BYARS V.
UNITED STATES, 273 U.S. 28 (1927).  COMPARE BURDEAU V. MCDOWELL, 256
U.S. 465 (1921), WITH LUSTIG V. UNITED STATES 338 U.S. 74, 78 - 79
(FRANKFURTER, J.).  SEE ALSO CORNGOLD V. UNITEDSTATES, 367 F.2D 1 (CA9
1966).  OUR FOURTH AMENDMENT JURISPRUDENCE SHOULD NOT BE SO WOODEN AS
TO IGNORE THE FACT THAT THROUGH MICROFILMING AND OTHER TECHNIQUES OF
THIS ELECTRONIC AGE, ILLEGAL SEARCHES AND SEIZURES CAN TAKE PLACE
WITHOUT THE BRUTE FORCE CHARACTERISTIC OF THE GENERAL WARRANTS WHICH
RAISED THE IRE OF THE FOUNDING FATHER.  SEE ENTICK V. CARRINGTON, 19
HOW.  ST. TR. 1029 (1765); STANFORD V. TEXAS, 379 U.S. 476, 483 - 484
(1965).  AS WE EMPHASIZED IN KATZ V. UNITED STATES, 289 U.S. 347
(1967), THE AVSENCE OF ANY PHYSICAL SEIZURE OF TANGIBLE PROPERTY DOES
NOT FORECLOSE FOURTH AMENDMENT INQUIREY.  ID., AT 352 - 353.  THE
FOURTH AMENDMENT "GOVERN NOT ONLY THE SEIZURE OF TANGIBLE ITEMS, BUT
EXTENDS AS WELL TO THE REORDING OF CHECKS MANDATED BY THE ACT HERE. 
AND SUCH A MASSIVE AND INDISCRIMINATE SEARCH AND SEIZURE, NOT ONLY
WITHOUT A WARRANT BUT ALSO WITHOUT PROBABLE CAUSE TO BELIEVE THAT ANY
EVIDENCE TO BE OBTAINED IS RELEVANT TO ANY INVESTIGATION, IS PLAINLY
INCONSISTENT WITH THE PRINCIPLES BEHIND THE AMENDMENT.  SEE STANFORD V.
TEXAS, SUPRA, AT 485 - 486; KATZ V. UNITED STATES, SUPRA, AT 356 -
359. 

IT IS SUGGESTED THAT THERE IS NO SEIZURE UNDER THE FOURTH AMENDMENT
BECAUSE THE BANK, WHICH IS REQUIRED TO CREATE AND MAINTAIN THE RECORD,
IS ALREADY A PARTY TO THE TRANSACTION.  SEE ANTE, AT 52.  SURELY THIS
IS IRRELEVANT TO THE QUESTION OF WHETHER A GOVERNMENT SEARCH OR SEIZURE
IS INVOLVED.  THE FACT THAT ONE HAS DISCLOSED PRIVATE PAPERS TO THE
BANK, FOR A LIMITED PURPOSE, WITHIN THE CONTEXT OF A CONFIDENTIAL
CUSTOMER-BANK RELATIONSHIP, DOES NOT MEAN THAT ONE HAS WAIVED ALL RIGHT
TO THE PRIVACY OF THE PAPERS.  LIKE THE USER OF THE PAY PHONE IN KATZ
V. UNITED STATES, WHO, HAVING PAID THE TOLL, WAS "ENTITLED TO ASSUME
THAT THE WORDS HE UTTERS INTO THE MOUTHPIECE WILL NOT BE BROADCAST TO
THE WORLD," 389 U.S., AT 352, SO THE CUSTOMER OF A BANK, HAVING WRITTEN
OR DEPOSITED A CHECK, HAS A REASONABLE EXPECTATION THAT HIS CHECK WILL
BE EXAMINED FOR BANK PURPOSES ONLY--TO CREDIT, DEBIT OR BALANCE HIS
ACCOUNT--AND NOT RECORDED AND KEPT ON FILE FOR SEVERAL YEARS BY
GOVERNEMNT DECREE SO THAT IT CAN BE AVAILABLE FOR GOVERNMENT SCRUTINY. 
SEE UNITED STATES V. FIRST NAT. BANK OF MOBILE, 67 F. SUPP. 616 (SD
ALA. 1946). 

THE MAJORITY ARGUES THAT ANY FOURTH AMENDMENT CLAIM IS PREMATURE,
SINCE THE ACT ITSELF ONLY AFFECTS THE KEEPING OF RECORDS AND IN NO WAY
CHANGES THE LAW REGARDING ACQUISITION OF THE RECORDS BY THE
GOVERNMENT.  I CANNOT AGREE.  THIS ATTEMPT TO BIFURCATE THE ACQUISITION
OF INFORMATION INTO TWO INDEPENDENT AND UNRELATED STEPS IS WHOLLY
UNREALISTIC.  AS THE GOVERNMENT ITSELF CONCEDES, "BANKS HAVE IN THE
PAST VOLUNTARILY ALLOWED LAW ENFORCEMENT OFFICIALS TO INSPECT BANK
RECORDS WITHOUT REQUIRING THE ISSUANCE OF A SUMMONS."  BRIEF FOR
APPELLEES IN NOS. 72 - 985 AND 72 - 1196, P. 38 N. 19.  INDEED, THE
CHIEF OF THE ORGANIZED CRIME AND RACKETEERING SECTION OF THE CRIMINAL
DIVISION OF THE JUSTICE DEPARTMENT TOLD A SENATE SUBCOMMITTEE IN 1972
THAT ACCESS BY THE FBI TO BANK RECORDS WITHOUT PROCESS OCCURS "WITH
SOME DEGREE OF FREQUENCY."  HEARINGS TO AMEND THE BANK SECRECY ACT (S.
3814 AND S. 3828) BEFORE THE SUBCOMMITTEE ON FINANCIAL INSTITUTIONS OF
THE SENATE COMMITTEE ON BANKING, HOUSING AND URBAN AFFAIRS, 92D CONG.,
2D SESS., 114 - 115.     THE PLAIN FACT OF THE MATTER IS THAT THE ACT'S
RECORDKEEPING REQUIREMENT FEEDS INTO A SYSTEM OF WIDESPREAD UNFORMAL
ACCESS TO BANK RECORDS BY GOVERNMENT AGENCIES AND LAW ENFORCEMENT
PERSONNEL.  IF THESE CUSTOMERS'  FOURTH AMENDMENT CLAIMS CANNOT BE
RAISED NOW, THEY CANNOT BE RAISED AT ALL, FOR ONCE RECORDED, THEIR
CHECKS WILL BE READILY ACCESSIBLE, WITHOUT JUDICIAL PROCESS AND WITHOUT
ANY SHOWING OF PROBABLE CAUSE, TO ANY OF THE SEVERAL AGENCIES THAT
PRESENTLY HAVE INFORMAL ACCESS TO BANK RECORDS. 

THE GOVERNMENT SUGGESTS THAT THE ACT DOES NOT IN ANY WAY PRECLUDE
BANKS FROM REFUSING TO ALLOW INFORMAL ACCESS AND INSISTING ON THE
INSURANCE OF LEGAL PROCESS BEFORE TURNING OVER A CUSTOMER'S FINANCIAL
RECORDS.  SUCH A REFUSAL, HOWEVER, EVEN IF ACCOMPANIED BY NOTICE TO THE
CUSTOMER WITH AN OPPORTUNITY FOR HIM TO ASSERT HIS CONSTITUTIONAL
CLAIMS, COMES TOO LATE, FOR THE SEIZURE HAS ALREADY TAKEN PLACE.  BY
VIRTUE OF THE ACT'S RECORDKEEPING REQUIREMENT, COPIES OF THE CUSTOMER'S
CHECKS ARE ALREADY IN THE BANK'S FILES AND AMENDABLE TO PROCESS.  THE
SEIZURE HAS ALREADY OCCURRED, AND ALL THAT REMAINS IS THE TRANSFER OF
THE DOCUMENTS FROM THE AGENT FORCED BY THE GOVERNMENT TO ACCOMPLISH THE
SEIZURE TO THE GOVERNMENT ITSELF.  INDEED, IT IS IRONIC THAT ALTHOUGH
THE MAJORITY DEEMS THE BANK CUSTOMERS' FOURTH AMENDMENT CLAIMS
PREMATURE, IT ALSO INTIMATES THAT ONCE THE BANK HAS MADE COPIES OF A
CUSTOMER'S CHECKS, THE CUSTOMER NO LONGER HAS STANDING TO INVOKE HIS
FOURTH AMENDMENT RIGHTS WHEN A DEMAND IS MADE ON THE BANK BY THE
GOVERNMENT FOR THE RECORDS.  SEE ANTE, AT 53.  BY ACCEPTING THE
GOVERNMENT'S BIFURCATED APPROACH TO THE RECORDKEEPING REQUIREMENT AND
THE ACQUISITION OF THE RECORDS, THE MAJORITY ENGAGES IN A HOLLOW
CHARADE WHEREBY FOURTH AMENDMENT CLAIMS ARE TO BE LABELED PREMATURE
UNTIL SUCH TIME AS THEY CAN BE DEEMDED TO LATE. 

NOR CAN I ACCEPT THE MAJORITY'S ANALYSIS OF THE FIRST AMENDMENT
ASSOCAITIONAL CALIMS RAISED BY THE AMERICAN CIVIL LIBERTIES UNION ON
BEHALF OF ITS MEMBERS WHO SEEK TO PRESERVE THE ANONOYMITY OF THEIR
FINANCIAL SUPPORT OF THE ORGANIZATION.  THE FIRST AMENDMENT GIVES
ORGANIZATIONS SUCH AS THE ACLU THE RIGHT TO MAINTAIN IN CONFIDENCE THE
NAMES OF THOSE WHO BELONG OR CONTRIBUTE TO THE ORGAINZATION, ABSENT A
COMPELLING GOVERNMENTAL INTEREST REQUIRING DISCLOSURE.  SEE NAACP V
ALABAMA, 357 U.S. 449 (1958).  SEE ALSO LAMONT V. POSTMASTER GENERAL,
381 U.S. 301 (1965); GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION
COMM'N, 372 U.S. 539 (1963); LOUISIANA EX REL.  GREMILLION V. NAACP,
366 U.S. 293 (1961); SHELTON V. TUCKER, 364 U.S. 479 (1960); BATES V.
LITTLE ROCK, 361 U.S. 516 (1960); UNITED STATES V. RUMLEY, 345 U.S. 41
(1953).  IT IS CERTAINLY INCONSISTENT WITH THIS LONG LINE OF CASES FOR
THE GOVERNMENT, ABSENT ANY SHOWING OF NEED WHATSOEVER, TO REQUIRE THE
BANK WITH WHICH THE ACLU MAINTAINS AN ACCOUNT TO MAKE AND KEEP A
MIRCOFILM RECORD OF ALL CHECKS RECEIVED BY THE ACLU AND DEPOSITED TO
ITS ACCOUNT.  THE NET REULAT OF THIS REQUIREMENT, OBVIOUSLY, IS AN
EASILY ACCESSIBLE LIST OF ALL OF THE ACLU'S CONTIRBUTORS.  AND, GIVEN
THE WIDESPREAD INFORMAL ACCESS TO BANK RECORDS BY GOVERNMENT AGENCIES,
SEE SUPRA, AT 96 - -97, THE EXISTENCE OF SUCH A LIST SURELY WILL CHILL
THE EXERCISE OF FIRST AMENDMENT RIGHTS OF ASSOCIATION ON THE PART OF
THOSE WHO WISH TO HAVE THEIR CONTRIBUTIONS REMAIN ANONYMOUS.  THE
TECHNIQUE OF EXAMINING BANK ACCOUNTS TO INVESTIGATE POLITICAL
ORGANIZATIONS IS, UNFORTUNATELY, NOT RARE.  SEE, E.G., POLLARD V.
ROBERTS, 283 F. SUPP. 248 (ED ARK.), AFF'D PER CURIAM, 393 U.S. 14
(1968); UNITED STATES SERVICEMEN'S FUND V. EASTLAND, -- U.S., APP. D.C.
--, 488 F.2D 1252 (1973). 

FIRST AMENDMENT FREEDOMS ARE "DELICATE AND VULNERABLE."  THEY NEED
BREATHING SPACE TO SURVIVE.  NAACP V. BUTTON, 371 U.S. 415, 433
(1963).  THE THREAT OF DISCLOSURE ENTAILED IN THE EXISTENCE OF AN
EASILY ACCESSIBLE LIST OF CONTRIBUTORS MAY DETER THE EXERCISE OF FIRST
AMENDMENT RIGHTS AS POTENTLY AS DISCLOSURE ITSELF.  CF. IBID.  SEE ALSO
UNITED STATES SERVICEMEN'S FUND V. EASTLAND, SUPRA, AT --, 488 F.2D, AT
1265 - 1268.  MORE IMPORTANTLY, HOWEVER SLIGHT MAY BE THE INHIBITION OF
FIRST AMENDMENT RIGHTS CAUSED BY THE BANK'S MAINTENANCE OF THE LIST OF
CONTRIBUTORS, THE CRUCIAL FACTOR IS THAT THE GOVERNMENT HAS SHOWN NO
NEED, COMPELLING OR OTHERWISE, FOR THE MAINTENANCE OF SUCH RECORDS. 
SURELY THE FACT THAT SOME MAY USE NEGOTIABLE INSTRUMENTS FOR ILLEGAL
PURPOSES CANNOT JUSTIFY THE GOVERNMENT'S RUNNING ROUGHSHOD OVER THE
FIRST AMENDMENT RIGHTS OF THE HUNDREDS OF LAWFUL YET CONTROVERSIAL
ORGANIZATIONS LIKE THE ACLU.  CONGRESS MAY WELL HAVE BEEN CORRECT IN
CONCLUDING THAT LAW ENFORCEMENT WOULD BE FACILITATED BY THE DRAGNET
REQUIREMENTS OF THIS ACT.  THOSE WHO WROTE OUR CONSTITUTION, HOWEVER,
RECOGNIZED MORE IMPORTANT VALUES. 

I RESPECFULLY DISSENT. 
..END :











LUBIN V. PANISH, 415 U.S. 709 


       LUBIN V. PANISH, REGISTRAR-RECORDER OF COUNTY OF LOS ANGELES

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

        NO. 71 - 6852.  ARGUED OCTOBER 9, 1973 -- DECIDED MARCH 26,

           1974; REVERSED AND REMANDED. 


    PETITIONER, AN INDIGENT, WAS DENIED NOMINATION PAPERS TO FILE

  AS A CANDIDATE FOR THE POSITION OF COUNTY SUPERVISOR IN

  CALIFORNIA BECAUSE, ALTHOUGH OTHERWISE QUALIFIED, HE WAS UNABLE

  TO PAY THE FILING FEE REQUIRED OF ALL CANDIDATES BY A CALIFORNIA

  STATUTE.  HE BROUGHT THIS CLASS ACTION IN CALIFORNIA SUPERIOR

  COURT FOR A WRIT OF MANDATE AGAINST THE SECRETARY OF STATE AND

  THE COUNTY REGISTRAT-RECORDER, CLAIMING THAT THE STATUTE, BY

  REQUIRING THE FILING FEE BUT PROVIDING NO OTHER WAY OF SECURING

  ACCESS TO THE BALLOT, DEPRIVED HIM AND OTHERS SIMILARLY SITUATED

 OF THE EQUAL PROTECTION GUARANTEED BY THE FOURTEENTH AMENDMENT

  AND RIGHTS OF EXPRESSION AND ASSOCIATION GUARANTEED BY THE FIRST

  AND FOURTEENTH AMENDMENTS.  THE SUPERIOR COURT DENIED THE WRIT OF

  MANDATE; THE COURT OF APPEAL AND THE CALIFORNIA SUPREME COURT

  ALSO DENIED WRITS.  HELD: ABSENT REASONABLE ALTERNATIVE MEANS OF

  BALLOT ACCESS, A STATE MAY NOT, CONSISTENT WITH CONSTITUTIONAL

  STANDARDS, REQUIRE FROM AN INDIGENT CANDIDATE FILING FEES THAT HE

  CANNOT PAY; DENYING A PERSON THE RIGHT TO FILE AS A CANDIDATE

  SOLELY BECAUSE OF AN INABILITY TO PAY A FIXED FEE, WITHOUT

  PROVIDING ANY ALTERNATIVE MEANS, IS NOT REASONABLY NECESSARY TO

  THE ACCOMPLISHMENT OF THE STATE'S LEGITIMATE INTEREST OF

  MAINTAINING THE INTEGRITY OF ELECTIONS.  PP. 712 - 719. 

     BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, AND POWELL, JJ.,

  JOINED.  DOUGLAS, J., FILED A CONCURRING OPINION, POST, P. 719. 

  BLACKMUN, J., FILED AN OPINION CONCURRING IN PART, IN WHICH

  REHNQUIST, J., JOINED, POST, P. 722. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO CONSIDER PETITIONER'S CLAIM THAT THE
CALIFORNIA STATUTE REQUIRING PAYMENT OF A FILING FEE OF $701.60 IN
ORDER TO BE PLACED ON THE BALLOT IN THE PRIMARY ELECTION FOR NOMINATION
TO THE POSITION OF COUNTY SUPERVISOR, WHILE PROVIDING NO ALTERNATIVE
MEANS OF ACCESS TO THE BALLOT, DEPRIVED HIM, AS AN INDIGENT PERSON
UNABLE TO PAY THE FEE, AND OTHERS SIMILARLY SITUATED, OF THE EQUAL
PROTECTION GUARANTEED BY THE FOURTEENTH AMENDMENT AND RIGHTS OF
EXPRESSION AND ASSOCIATION GUARANTEED BY THE FIRST AMENDMENT. 

THE CALIFORNIA ELECTION CODE PROVIDES THAT FORMS REQUIRED FOR
NOMINATION AND ELECTION TO CONGRESSIONAL, STATE, AND COUNTY OFFICES ARE
TO BE ISSUED TO CANDIDATES ONLY UPON PREPAYMENT OF A NONREFUNDABLE
FILING FEE.  CAL. ELECTIONS CODE 6551.  GENERALLY, THE REQUIRED FEES
ARE FIXED AT A PERCENTAGE OF THE SALARY FOR THE OFFICE SOUGHT.  THE FEE
FOR CANDIDATES FOR UNITED STATES SENATOR, GOVERNOR, AND OTHER STATE
OFFICES AND SOME COUNTY OFFICES, IS 2% OF THE ANNUAL SALARY. 
CANDIDATES FOR REPRESENTATIVE TO CONGRESS, STATE SENATOR OR
ASSEMBLYMAN, OR FOR JUDICIAL OFFICE OR DISTRICT ATTORNEY, MUST PAY 1%.
NO FILING FEE IS REQUIRED OF CANDIDATES IN THE PRESIDENTIAL PRIMARY, OR
FOR OFFICES WHICH PAY EITHER NO FIXED SALARY OR NOT MORE THAN $600
ANNUALLY.  CAL. ELECTIONS CODE 6551, 6552, AND 6554. 

UNDER THE CALIFORNIA STATUTES IN EFFECT AT THE TIME THIS SUIT WAS
COMMENCED, THE REQUIRED CANDIDATE FILING FEES RANGED FROM $192 FOR
STATE ASSEMBLY, $425 FOR CONGRESS, $701.60 FOR LOS ANGELES COUNTY BOARD
OF SUPERVISORS, $850 FOR UNITED STATES SENATOR, TO $982 FOR GOVERNOR. 

THE CALIFORNIA STATUTE PROVIDES FOR THE COUNTING OF WRITE-IN VOTES
SUBJECT TO CERTAIN CONDITIONS.  CAL. ELECTIONS CODE 18600 ET SEQ.
(SUPP. 1974).  WRITE-IN VOTES ARE NOT COUNTED, HOWEVER, UNLESS THE
PERSON DESIRING TO BE A WRITE-IN CANDIDATE FILES A STATEMENT TO THAT
EFFECT WITH THR REGISTRAR-RECORDER AT LEAST EIGHT DAYS PRIOR TO THE
ELECTION, ID., 18602, AND PAYS THE REQUISITE FILING FEE, ID., 18603. 
THE LATTER SECTION PROVIDES THAT "(NO NAME WRITTEN UPON A BALLOT IN ANY
STATE, COUNTY, CITY, CITY AND COUNTY, OR DISTRICT ELECTION SHALL BE
COUNTED FOR AN OFFICE OR NOMINATION UNLESS . . . (THE FEE REQUIRED BY
FILED.  . . ."  THUS, THE CONTESTED FILING FEES MUST BE SATISFIED EVEN
UNDER THE WRITE-IN NOMINATION PROCEDURES. 

PETITIONER COMMENCED THIS CLASS ACTION ON FEBRUARY 17, 1972, BY
PETITIONING THE LOS ANGELES SUPERIOR COURT FOR A WRIT OF MANDATE
AGAINST THE SECRETARY OF STATE AND THE LOS ANGELES COUNTY REGISTRAR
RECORDER.  THE SUIT WAS FILED ON BEHALF OF PETITIONER AND ALL THOSE
SIMILARLY SITUATED PERSONS WHO WERE UNABLE TO PAY THE FILING FEES AND
WHO DESIRED TO BE NOMINATED FOR PUBLIC OFFICE.  IN HIS COMPLAINT,
PETITIONER MAINTAINED THAT HE WAS A CITIZEN AND A VOTER AND THAT HE HAD
SOUGHT NOMINATION AS A CANDIDATE FOR MEMBERSHIP ON THE BOARD OF
SUPERVISORS OF LOS ANGELES COUNTY.  /1/  PETITIONER ASSERTED THAT ON
FEBRUARY 15, 1972, HE HAD APPEARED AT THE OFFICE OF JAMES S. ALLISON,
THEN REGISTRAR-RECORDER OF THE COUNTY OF LOS ANGELES, TO APPLY FOR AND
SECURE ALL NECESSARY NOMINATION PAPERS REQUISITE TO HIS PROPOSED
CANDIDACY.  PETITIONER WAS DENIED THE REQUESTED NOMINATION PAPERS
ORALLY AND IN WRITING SOLELY BECAUSE HE WAS UNABLE TO PAY THE $701.60
FILING FEE REQUIRED OF ALL WOULD-BE CANDIDATES FOR THE OFFICE OF BOARD
OF SUPERVISORS. 

THE LOS ANGELES SUPERIOR COURT DENIED THE REQUESTED WRIT OF MANDATE
ON MARCH 6, 1972.  PETITIONER ALLEGED THAT HE WAS A SERIOUS CANDIDATE,
THAT HE WAS INDIGENT, AND THAT HE WAS UNABLE TO PAY THE $701.60 FILING
FEE; NO EVIDENCE WAS TAKEN DURING THE HEARING.  THE SUPERIOR COURT
FOUND THE FEES TO BE "REASONABLE, AS A MATTER OF LAW."  ACCORDINGLY,
THE COURT MADE NO ATTEMPT TO DETERMINE WHETHER THE FEES CHARGED WERE
NECESSARY TO THE STATE'S PURPOSE, OR WHETHER THE FEES, IN ADDITION TO
DETERRING SOME FRIVOLOUS CANDIDATES, ALSO PROHIBITED SERIOUS BUT
INDIGENT CANDIDATES FROM ENTERING THEIR NAMES ON THE BALLOT.  THE
SUPERIOR COURT ALSO REJECTED THE ARGUMENT THAT THE STATE WAS REQUIRED
BY BULLOCK V. CARTER, 405 U.S. 134 (1972), TO PROVIDE AN ALTERNATIVE
MEANS OF ACCESS TO THE BALLOT WHICH DID NOT DISCRIMINATE ON THE BASIS
OF ECONOMIC FACTORS. 

ON MARCH 9, 1972, A SECOND PETITION FOR WRIT OF MANDATE WAS DENIED
BY THE COURT OF APPEAL, SECOND DISTRICT, AND ON MARCH 22, 1972, AFTER
THE DEADLINE FOR FILING NOMINATION PAPERS HAD PASSED, THE CALIFORNIA
SUPREME COURT DENIED PETITIONER'S THIRD APPLICATION FOR A WRIT OF
MANDATE. 

HISTORICALLY, SINCE THE PROGRESSIVE MOVEMENT OF THE EARLY 20TH
CENTURY, THERE HAS BEEN A STEADY TREND TOWARD LIMITING THE SIZE OF THE
BALLOT IN ORDER TO "CONCENTRATE THE ATTENTION OF THE ELECTORATE ON THE
SELECTION OF A MUCH SMALLER NUMBER OF OFFICIALS AND SO AFFORD TO THE
VOTERS THE OPPORTUNITY OF EXERCISING MORE DISCRIMINATION IN THEIR USE
OF THE FRANCHISE.  /2/  THIS DESIRE TO LIMIT THE SIZE OF THE BALLOT HAS
BEEN VARIOUSLY PHRASED AS A DESIRE TO MINIMIZE VOTER CONFUSION, THOMAS
V. MIMS, 317 F. SUPP. 179, 181 (SD ALA. 1970), TO LIMIT THE NUMBER OF
RUNOFF ELECTIONS, SPILLERS V. SLAUGHTER, 325 F. SUPP. 550,553 (MD FLA.
1971), TO CURB "BALLOT FLOODING," JENNESS V. LITTLE, 306 F. SUPP. 925,
927 (ND GA. 1969), APPEAL DISMISSED SUB NOM. MATTHEWS V. LITTLE, 397
U.S. 94 (1970), AND TO PREVENT THE OVERWHELMING OF VOTING MACHINES --
THE MODERN COUNTERPART OF BALLOT FLOODING, WETHERINGTON V. ADAMS, 309
F. SUPP. 318, 321 (ND FLA. 1970).  A MAJORITY OF STATES HAVE LONG
REQUIRED THE PAYMENT OF SOME FORM OF FILING FEE, /3/  IN PART TO LIMIT
THE BALLOT AND IN PART TO HAVE CANDIDATES PAY SOME OF THE
ADMINISTRATIVE COSTS. 

IN SHARP CONTRAST TO THIS FEAR OF AN UNDULY LENGTHY BALLOT IS AN
INCREASING PRESSURE FOR BROADER ACCESS TO THE BALLOT.  THUS, WHILE
PROGRESSIVE THOUGHT IN THE FIRST HALF OF THE CENTURY WAS CONCERNED WITH
RESTRICTING THE BALLOT TO ACHIEVE VOTING RATIONALITY, RECENT DECADES
BROUGHT AN ENLARGED DEMAND FOR AN EXPANSION OF POLITICAL OPPORTUNITY. 
THE TWENTY-FIFTH AMENDMENT, THE TWENTY-SIXTH AMENDMENT, AND THE VOTING
RIGHTS ACT OF 1965, 79 STAT. 437, 42 U.S.C. 1973 ET SEQ., REFLECT THIS
SHIFT IN EMPHASIS.  THERE HAS ALSO BEEN A GRADUAL ENLARGEMENT OF THE
FOURTEENTH AMENDMENT'S EQUAL PROTECTION PROVISION IN THE AREA OF VOTING
RIGHTS: 

     "IT HAS BEEN ESTABLISHED IN RECENT YEARS THAT THE EQUAL

  PROTECTION CLAUSE CONFERS THE SUBSTANTIVE RIGHT TO PARTICIPATE ON

  AN EQUAL BASIS WITH OTHER QUALIFIED VOTERS WHENEVER THE STATE HAS

  ADOPTED AN ELECTORAL PROCESS FOR DETERMINING WHO WILL REPRESENT

  ANY SEGMENT OF THE STATE'S POPULATION.  SEE E.G., REYNOLDS V.

  SIMS, 377 U.S. 533; KRAMER V. UNION SCHOOL DISTRICT, 395 U.S.

  621; DUNN V. BLUMSTEIN, 405 U.S. 330, 336."  SAN ANTONIO SCHOOL

  DISTRICT V. RODRIGUEZ, 411 U.S. 1, 59 N. 2 (1973) (STEWART, J.,

  CONCURRING). 

THIS PRINCIPLE FLOWS NATURALLY FROM OUR RECOGNITION THAT 

"(LEGISLATORS ARE ELECTED BY VOTERS, NOT FARMS OR CITIES OR ECONOMIC
INTERESTS.  AS LONG AS OURS IS A REPRESENTATIVE FORM OF GOVERNMENT, AND
OUR LEGISLATURES ARE THOSE INSTRUMENTS OF GOVERNMENT ELECTED DIRECTLY
BY AND DIRECTLY REPRESENTATIVE OF THE PEOPLE, THE RIGHT TO ELECT
LEGISLATORS IN A FREE AND UNIMPAIRED FASHION IS A BEDROCK OF OUR
POLITICAL SYSTEM."  (WARREN, C.J.). 

THE PRESENT CASE DRAWS THESE TWO MEANS OF ACHIEVING AN EFFECTIVE,
REPRESENTATIVE POLITICAL SYSTEM INTO APPARENT CONFLICT AND PRESENTS THE
QUESTION OF HOW TO ACCOMMODATE THE DESIRE FOR INCREASED BALLOT ACCESS
WITH THE IMPERATIVE OF PROTECTING THE INTEGRITY OF THE ELECTORAL SYSTEM
FROM THE RECOGNIZED DANGERS OF BALLOTS LISTING SO MANY CANDIDATES AS TO
UNDERMINE THE PROCESS OF GIVING EXPRESSION TO THE WILL OF THE
MAJORITY.  THE PETITIONER STATED ON OATH THAT HE IS WITHOUT ASSETS OR
INCOME AND CANNOT PAY THE $701.60 FILING FEE ALTHOUGH HE IS OTHERWISE
LEGALLY ELIGIBLE TO BE A CANDIDATE ON THE PRIMARY BALLOT.  SINCE HIS
AFFIDAVIT OF INDIGENCY STATES THAT HE HAS NO RESOURCES AND EARNED NO
INCOME WHATEVER IN 1972, IT WOULD APPEAR THAT HE WOULD MAKE THE SAME
CLAIM WHETHER THE FILING FEE HAD BEEN FIXED AT $1, $100, OR $700.  THE
STATE ACCEPTS THIS AS TRUE BUT DEFENDS THE STATUTORY FEE AS NECESSARY
TO KEEP THE BALLOT FROM BEING OVERWHELMED WITH FRIVOLOUS OR OTHERWISE
NONSERIOUS CANDIDATES, ARGUING THAT AS TO INDIGENTS THE FILING FEE IS
NOT INTENDED AS A TEST OF HIS POCKETBOOK BUT THE EXTENT OF HIS
POLITICAL SUPPORT AND HENCE THE SERIOUSNESS OF HIS CANDIDACY. 

IN BULLOCK V. CARTER, 405 U.S. 134 (1972), /4/  WE RECOGNIZED THAT THE
STATE'S INTEREST IN KEEPING ITS BALLOTS WITHIN MANAGEABLE,
UNDERSTANDABLE LIMITS IS OF THE HIGHEST ORDER.  ID., AT 144- 145.  THE
ROLE OF THE PRIMARY ELECTION PROCESS IN CALIFORNIA IS UNDERSCORED BY
ITS IMPORTANCE AS A COMPONENT OF THE TOTAL ELECTORAL PROCESS AND ITS
SPECIAL FUNCTION TO ASSURE THAT FRAGMENTATION OF VOTER CHOICE IS
MINIMIZED.  THAT FUNCTION IS SERVED, NOT FRUSTRATED, BY A PROCEDURE
THAT TENDS TO REGULATE THE FILING OF FRIVOLOUS CANDIDATES.  A PROCEDURE
INVITING OR PERMITTING EVERY CITIZEN TO PRESENT HIMSELF TO THE VOTERS
ON THE BALLOT WITHOUT SOME MEANS OF MEASURING THE SERIOUSNESS OF THE
CANDIDATE'S DESIRE AND MOTIVATION WOULD MAKE RATIONAL VOTER CHOICES
MORE DIFFICULT BECAUSE OF THE SIZE OF THE BALLOT AND HENCE TEND TO
IMPEDE THE ELECTORAL PROCESS.  THAT NO DEVICE CAN BE CONJURED TO
ELIMINATE EVERY FRIVOLOUS CANDIDACY DOES NOT UNDERMINE THE STATE'S
EFFORT TO ELIMINATE AS MANY SUCH AS POSSIBLE. 

THAT "LAUNDRY LIST" BALLOTS DISCOURAGE VOTER PARTICIPATION AND
CONFUSE AND FRUSTRATE THOSE WHO DO PARTICIPATE IS TOO OBVIOUS TO CALL
FOR EXTENDED DISCUSSION.  THE MEANS OF TESTING THE SERIOUSNESS OF A
GIVEN CANDIDACY MAY BE OPEN TO DEBATE; THE FUNDAMENTAL IMPORTANCE OF
BALLOTS OF REASONABLE SIZE LIMITED TO SERIOUS CANDIDATES WITH SOME
PROSPECTS OF PUBLIC SUPPORT IS NOT.  RATIONAL RESULTS WITHIN THE
FRAMEWORK OF OUR SYSTEM ARE NOT LIKELY TO BE REACHED IF THE BALLOT FOR
A SINGLE OFFICE MUST LIST A DOZEN OR MORE ASPIRANTS WHO ARE RELATIVELY
UNKNOWN OR HAVE NO PROSPECTS OF SUCCESS. 

THIS LEGITIMATE STATE INTEREST, HOWEVER, MUST BE ACHIEVED BY A MEANS
THAT DOES NOT UNFAIRLY OR UNNECESSARILY BURDEN EITHER A MINORITY
PARTY'S OR AN INDIVIDUAL CANDIDATE'S EQUALLY IMPORTANT INTEREST IN THE
CONTINUED AVAILABILITY OF POLITICAL OPPORTUNITY.  THE INTERESTS
INVOLVED ARE NOT MERELY THOSE OF PARTIES OR INDIVIDUAL CANDIDATES; THE
VOTERS CAN ASSERT THEIR PREFERENCES ONLY THROUGH CANDIDATES OR PARTIES
OR BOTH AND IT IS THIS BROAD INTEREST THAT MUST BE WEIGHED IN THE
BALANCE.  THE RIGHT OF A PARTY OR AN INDIVIDUAL TO A PLACE ON A BALLOT
IS ENTITLED TO PROTECTION AND IS INTERTWINED WITH THE RIGHTS OF
VOTERS. 

"(THE RIGHT TO VOTE IS HEAVILY BURDENED IF THAT VOTE MAY BE CAST
ONLY FOR ONE OF TWO PARTIES AT A TIME WHEN OTHER PARTIES ARE CLAMORING
FOR A PLACE ON THE BALLOT."  WILLIAMS V. RHODES, 393 U.S. 23, 31
(1968).  THIS MUST ALSO MEAN THAT THE RIGHT TO VOTE IS "HEAVILY
BURDENED" IF THAT VOTE MAY BE CAST ONLY FOR ONE OF TWO CANDIDATES IN A
PRIMARY ELECTION AT A TIME WHEN OTHER CANDIDATES ARE CLAMORING FOR A
PLACE ON THE BALLOT.  IT IS TO BE EXPECTED THAT A VOTER HOPES TO FIND
ON THE BALLOT A CANDIDATE WHO COMES NEAR TO REFLECTING HIS POLICY
PREFERENCES ON CONTEMPORARY ISSUES.  THIS DOES NOT MEAN EVERY VOTER CAN
BE ASSURED THAT A CANDIDATE TO HIS LIKING WILL BE ON THE BALLOT, BUT
THE PROCESS OF QUALIFYING CANDIDATES FOR A PLACE ON THE BALLOT MAY NOT
CONSITIUTIONALLY BE MEASURED SOLELY IN DOLLARS. 

IN BULLOCK, SUPRA, WE EXPRESSLY REJECTED THE VALIDITY OF FILING FEES
AS THE SOLE MEANS OF DETERMINING A CANDIDATE'S "SERIOUSNESS": 

"TO SAY THAT THE FILING FEE REQUIREMENT TENDS TO LIMIT THE BALLOT TO
THE MORE SERIOUS CANDIDATES IS NOT ENOUGH.  THERE MAY WELL BE SOME
RATIONAL RELATIONSHIP BETWEEN A CANDIDATE'S WILLINGNESS TO PAY A FILING
FEE AND THE SERIOUSNESS WITH WHICH HE TAKES HIS CANDIDACY, (FOOTNOTE
OMITTTED) BUT THE CANDIDATES IN THIS CASE AFFIRMATIVELY ALLEGED THAT
THEY WERE UNABLE, NOT SIMPLY UNWILLING, TO PAY THE ASSESSED FEES, AND
THERE WAS NO CONTRARY EVIDENCE.  IT IS UNCONTESTED THAT THE FILING FEES
EXCLUDE LEGITIMATE AS WELL AS FRIVOLOUS CANDIDATES.  . . . IF THE TEXAS
FEE REQUIREMENT IS INTENDED TO REGULATE THE BALLOT BY WEEDING OUT
SPURIOUS CANDIDATES, IT IS EXTRAORDINARILY ILL-FITTED TO THAT GOAL;
(FOOTNOTE OMITTED) OTHER MEANS TO PROTECT THOSE VALID INTERESTS ARE
AVAILABLE."  405 U.S., AT 145 - 146.  (EMPHASIS IN ORIGINAL.)  FILING
FEES, HOWEVER LARGE, DO NOT, IN AND OF THEMSELVES, TEST THE GENUINENESS
OF A CANDIDACY OR THE EXTENT OF THE VOTER SUPPORT OF AN ASPIRANT FOR
PUBLIC OFFICE.  A LARGE FILING FEE MAY SERVE THE LEGITIMATE FUNCTION OF
KEEPING BALLOTS MANAGEABLE BUT, STANDING ALONE, IT IS NOT A CERTAIN
TEST OF WHETHER THE CANDIDACY IS SERIOUS OR SPURIOUS.  A WEALTHY
CANDIDATE WITH NOT THE REMOTEST CHANCE OF ELECTION MAY SECURE A PLACE
ON THE BALLOT BY WRITING A CHECK.  MERCHANTS AND OTHER ENTREPRENEURS
HAVE BEEN KNOWN TO RUN FOR PUBLIC OFFICE SIMPLY TO MAKE THEIR NAMES
KNOWN TO THE PUBLIC.  WE HAVE ALSO NOTED THAT PROHIBITIVE FILING FEES,
SUCH AS THOSE IN BULLOCK CAN EFFECTIVELY EXCLUDE SERIOUS CANDIDATES. 
CONVERSELY, IF THE FILING FEE IS MORE MODERATE, AS HERE, IMPECUNIOUS
BUT SERIOUS CANDIDATES MAY BE PREVENTED FROM RUNNING.  EVEN IN THIS DAY
OF HIGH BUDGET POLITICAL CAMPAIGNS SOME CANDIDATES HAVE DEMONSTRATED
THAT DIRECT CONTACT WITH THOUSANDS OF VOTERS BY "WALKING TOURS" IS A
ROUTE TO SUCCESS.  WHATEVER MAY BE THE POLITICAL MOOD AT ANY GIVEN
TIME, OUR TRADITION HAS BEEN ONE OF HOSPITALITY TOWARD ALL CANDIDATES
WITHOUT REGARD TO THEIR ECONOMIC STATUS.     THE ABSENCE OF ANY
ALTERNATIVE MEANS OF GAINING ACCESS TO THE BALLOT INEVITABLY RENDERS
THE CALIFORNIA SYSTEM EXCLUSIONARY AS TO SOME ASPIRANTS.  AS WE HAVE
NOTED, THE PAYMENT OF A FEE IS AN ABSOLUTE, NOT AN ALTERNATIVE,
CONDITION, AND FAILURE TO MEET IT IS A DISQUALIFICATION FROM RUNNING
FOR OFFICE.  THUS, CALIFORNIA HAS CHOSEN TO ACHIEVE THE IMPORTANT AND
LEGITIMATE INTEREST OF MAINTAINING THE INTEGRITY OF ELECTIONS BY MEANS
WHICH CAN OPERATE TO EXCLUDE SOME POTENTIALLY SERIOUS CANDIDATES FROM
THE BALLOT WITHOUT PROVIDING THEM WITH ANY ALTERNATIVE MEANS OF COMING
BEFORE THE VOTERS.  SELECTION OF CANDIDATES SOLELY ON THE BASIS OF
ABILITY TO PAY A FIXED FEE WITHOUT PROVIDING ANY ALTERNATIVE MEANS IS
NOT REASONABLY NECESSARY TO THE ACCOMPLISHMENT OF THE STATE'S
LEGITIMATE ELECTION INTERESTS.  ACCORDINGLY, WE HOLD THAT IN THE
ABSENCE OF REASONABLE ALTERNATIVE MEANS OF BALLOT ACCESS, A STATE MAY
NOT, CONSISTENT WITH CONSTITUTIONAL STANDARDS, REQUIRE FROM AN INDIGENT
CANDIDATE FILING FEES HE CANNOT PAY. 

IN SO HOLDING, WE NOTE THAT THERE ARE OBVIOUS AND WELL-KNOWN MEANS
OF TESTING THE "SERIOUSNESS" OF A CANDIDACY WHICH DO NOT MEASURE THE
PROBABILITY OF ATTRACTING SIGNIFICANT VOTER SUPPORT SOLELY BY THE
NEUTRAL FACT OF PAYMENT OF A FILING FEE.  STATES MAY, FOR EXAMPLE,
IMPOSE ON MINOR POLITICAL PARTIES THE PRECONDITION OF DEMONSTRATING THE
EXISTENCE OF SOME REASONABLE QUANTUM OF VOTER SUPPORT BY REQUIRING SUCH
PARTIES TO FILE PETITIONS FOR A PLACE ON THE BALLOT SIGNED BY A
PERCENTAGE OF THOSE WHO VOTED IN A PRIOR ELECTION.  SEE AMERICAN PARTY
OF TEXAS V. WHITE, POST, P. 767.  SIMILARLY, A CANDIDATE WHO
ESTABLISHES THAT HE CANNOT PAY THE FILING FEE REQUIRED FOR A PLACE ON
THE PRIMARY BALLOT MAY BE REQUIRED TO DEMONSTRATE THE "SERIOUSNESS" OF
HIS CANDIDACY BY PERSUADING A SUBSTANTIAL NUMBER OF VOTERS TO SIGN A
PETITION IN HIS BEHALF.  /5/  THE POINT, OF COURSE, IS THAT BALLOT
ACCESS MUST BE GENUINELY OPEN TO ALL SUBJECT TO REASONABLE
REQUIREMENTS.  JENNESS V. FORTSON, 403 U.S. 431, 439 (1971). 
CALIFORNIA'S PRESENT SYSTEM HAS NOT MET THIS STANDARD. 

REVERSED AND REMANDED FOR FURTHER CONSIDERATION NOT INCONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE BOARD OF SUPERVISORS OF LOS ANGELES COUNTY IS THE GOVERNING
BODY FOR LOS ANGELES COUNTY, CALIFORNIA.  THE TERM IS FOUR YEARS, THE
ANNUAL SALARY $35,080. 

/2/  H. CROLY, PROGRESSIVE DEMOCRACY 289 (1914). 

/3/  SEE COMMENT, THE CONSTITUTIONALITY OF QUALIFYING FEES FOR
POLITICAL CANDIDATES, 120 U. PA. L. REV. 109 (1971), FOR A DETAILED
DESCRIPTION OF EACH STATE'S FILING-FEE REQUIREMENTS. 

/4/  BULLOCK, OF COURSE, DOES NOT COMPLETELY RESOLVE THE PRESENT
ATTACK UPON THE CALIFORNIA ELECTION STATUTES BECAUSE IT INVOLVED FILING
FEES THAT WERE SO PATENTLY EXCLUSIONARY AS TO VIOLATE TRADITIONAL EQUAL
PROTECTION CONCEPTS.  CF. ROSARIO V. ROCKFELLER, 410 U.S. 752, 760
(1973); JAMES V. STRANGE, 407 U.S. 128 (1972); RINALDI V. YEAGER, 384
U.S. 305 (1966).  UNDER ATTACK IN BULLOCK WAS A TEXAS STATUTE THAT
REQUIRED CANDIDATES TO PAY A FLAT FEE OF $50 PLUS THEIR PRO RATA SHARE
OF THE COSTS OF THE ELECTION IN ORDER TO GET ON THE PRIMARY BALLOT. 
TEX. ELECTION CODE, ART. 13.07A (SUPP. 1974).  THE ASSESSMENT OF COSTS
INVOLVED SUMS AS HIGH AS $8,900. 

/5/  IT IS SUGGESTED THAT A WRITE-IN PROCEDURE, UNDER 18600 ET SEQ.,
WITHOUT A FILING FEE WOULD BE AN ADEQUATE ALTERNATIVE TO CALIFORNIA'S
PRESENT FILING-FEE REQUIREMENT.  THE REALITIES OF THE ELECTORAL
PROCESS, HOWEVER, STRONGLY SUGGEST THAT "ACCESS" VIA WRITE-IN VOTES
FALLS FAR SHORT OF ACCESS IN TERMS OF HAVING THE NAME OF THE CANDIDATE
ON THE BALLOT.  IT WOULD ALLOW AN AFFLUENT CANDIDATE TO PUT HIS NAME
BEFORE THE VOTERS ON THE BALLOT BY PAYING A FILING FEE WHILE THE
INDIGENT, RELEGATED TO THE WRITE-IN PROVISION, WOULD BE FORCED TO REST
HIS CHANCES SOLELY UPON THOSE VOTERS WHO WOULD REMEMBER HIS NAME AND
TAKE THE AFFIRMATIVE STEP OF WRITING IT ON A BALLOT.  THAT DISPARITY
WOULD, ITSELF, GIVE RISE TO CONSTITUTIONAL QUESTIONS AND, ALTHOUGH WE
NEED NOT DECIDE THE ISSUE, THE INTIMATION THAT A WRITE-IN PROVISION
WITHOUT THE FILING REQUIRED BY 18600 ET SEQ. WOULD CONSTITUTE "AN
ACCEPTABLE ALTERNATIVE" APPEARS DUBIOUS AT BEST. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE COURT'S OPINION I WISH TO ADD A FEW WORDS, SINCE IN
MY VIEW THIS CASE IS CLEARLY CONTROLLED BY PRIOR DECISIONS APPLYING THE
EQUAL PROTECTION CLAUSE TO WEALTH DISCRIMINATIONS.  SINCE
CLASSIFICATIONS BASED ON WEALTH ARE "TRADITIONALLY DISFAVORED," HARPER
V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663, 668 (1966), THE STATE'S
INABILITY TO SHOW A COMPELLING INTEREST IN CONDITIONING THE RIGHT TO
RUN FOR OFFICE ON PAYMENT OF FEES CANNOT STAND.  BULLOCK V. CARTER, 405
U.S. 134 (1972). 

THE COURT FIRST BEGAN LOOKING CLOSELY AT DISCRIMINATION AGAINST THE
POOR IN THE CRIMINAL AREA.  IN GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956),
WE FOUND THAT DE FACTO DENIAL OF APPEAL RIGHTS BY AN ILLINOIS STATUTE
REQUIRING PURCHASE OF A TRANSCRIPT DENIED EQUAL PROTECTION TO INDIGENT
DEFENDANTS SINCE THEIR "CAN BE NO EQUAL JUSTICE WHERE THE KIND OF TRIAL
A MAN GETS DEPENDS ON THE AMOUNT OF MONEY HE HAS."  ID., AT 19.  IN
DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963), WE FOUND THAT THE STATE HAD
DRAWN "AN UNCONSTITUTIONAL LINE . . .BETWEEN RICH AND POOR" WHEN IT
ALLOWED AN APPELLATE COURT TO DECIDE AN INDIGENT'S CASE ON THE MERITS
ALTHOUGH NO COUNSEL HAD BEEN APPOINTED TO ARGUE HIS CASE BEFORE THE
APPELLATE COURT.  JUST RECENTLY WE FOUND THAT THE STATE COULD NOT
EXTEND THE PRISON TERM OF AN INDIGENT FOR HIS FAILURE TO PAY AN
ASSESSED FINE,SINCE THE LENGTH OF CONFINEMENT COULD NOT UNDER THE EQUAL
PROTECTION CLAUSE BE MADE TO TURN ON ONE'S ABILITY TO PAY.  WILLIAMS V.
ILLINOIS, 399 U.S. 235 (1970); SEE TATE V. SHORT, 401 U.S. 395 (1971). 
BUT CRIMINAL PROCEDURE HAS NOT DEFINED THE BOUNDARIES WITHIN WHICH
WEALTH DISCRIMINATIONS HAVE BEEN STRUCK DOWN.  IN BODDIE V.
CONNECTICUT, 401 U.S. 371 (1971), THE MAJORITY FOUND THAT THE FILING
FEE WHICH DENIED THE POOR ACCESS TO THE COURTS FOR DIVORCE WAS A DENIAL
OF DUE PROCESS; MR. JUSTICE BRENNAN AND I IN CONCURRENCE PREFERRED TO
REST THE RESULT ON EQUAL PROTECTION.  AND IT WAS THE EQUAL PROTECTION
CLAUSE THE MAJORITY RELIED ON IN LINDSEY V. NORMET, 405 U.S. 56, 79
(1972), IN FINDING THAT OREGON'S DOUBLE-BOND REQUIREMENT FOR APPEALING
FORCIBLE ENTRY AND DETAINER ACTIONS DISCRIMINATED AGAINST THE POOR. 
"FOR THEM, AS A PRACTICAL MATTER, APPEAL IS FORECLOSED, NO MATTER HOW
MERITORIOUS THEIR CASES MAY BE." 

INDEED, THE COURT HAS SCRUTINIZED WEALTH DISCRIMINATION IN A WIDE
VARIETY OF AREAS.  IN SHAPIRO V. THOMPSON, 394 U.S. 618, 633 (1969), WE
FOUND THAT DETERRING INDIGENTS FROM MIGRATING INTO THE STATE WAS NOT A
CONSTITUTIONALLY PERMISSIBLE STATE OBJECTIVE.  CLOSER TO THE CASE
BEFORE US HERE WAS TURNER V. FOUCHE, 396 U.S. 346, 362 - 364 (1970), IN
WHICH THE COURT FOUND THAT GEORGIA COULD NOT CONSTITUTIONALLY REQUIRE
OWNERSHIP OF LAND AS A QUALIFICATION FOR MEMBERSHIP ON A COUNTY BOARD
OF EDUCATION.  SEE KRAMER V. UNION FREE SCHOOL DIST., 395 U.S. 621
(1969); CIPRIANO V. HOUMA, 395 U.S. 701 (1969).  IN HARPER V. VIRGINIA
BD. OF ELECTIONS, SUPRA, WE FOUND A STATE POLL TAX VIOLATIVE OF EQUAL
PROTECTION BECAUSE OF THE BURDEN IT PLACED ON THE POOR'S EXERCISE OF
THE FRANCHISE.  AN IN BULLOCK V. CARTER, SUPRA, WE INVALIDATED A TEXAS
FILING FEE SYSTEM VIRTUALLY INDISTINGUISHABLE FROM THAT PRESENTED
HERE. 

WHAT WE DO TODAY THUS INVOLVES NO NEW PRINCIPLE, NOR ANY NOVEL
APPLICATION.  "(A) MAN'S MERE PROPERTY STATUS, WITHOUT MORE, CANNOT BE
USED BY A STATE TO TEST, QUALIFY, OR LIMIT HIS RIGHTS AS A CITIZEN OF
THE UNITED STATES."  EDWARDS V. CALIFORNIA, 314 U.S. 160, 184 (1941)
(JACKSON, J., CONCURRING).  VOTING IS CLEARLY A FUNDAMENTAL RIGHT.  /1/
HARPER V. VIRGINIA BD. OF ELECTIONS, SUPRA, AT 667; REYNOLDS V. SIMS,
377 U.S. 533, 561 - 562 (1964).  BUT THE RIGHT TO VOTE WOULD BE EMPTY
IF THE STATE COULD ARBITRARILY DENY THE RIGHT TO STAND FOR ELECTION. 
CALIFORNIA DOES NOT SATISFY THE EQUAL PROTECTION CLAUSE WHEN IT ALLOWS
THE POOR VOTE BUT EFFECTIVELY PREVENTS THEM FROM VOTING FOR ONE OF
THEIR OWN ECONOMIC CLASS.  SUCH AN ELECTION WOULD BE A SHAM, AND WE
HAVE HELD THAT THE STATE MUST SHOW A COMPELLING INTEREST BEFORE IT CAN
KEEP POLITICAL MINORITIES OFF THE BALLOT.  WILLIAMS V. RHODES, 393 U.S.
23, 31 (1968).  THE POOR MAY BE TREATED NO DIFFERENTLY.  HC# 722 

/1/  NO RIGHT IS MORE PRECIOUS IN A FREE COUNTRY THAN THAT OF HAVING
A VOICE IN THE ELECTION OF THOSE WHO MAKE THE LAWS UNDER WHICH, AS GOOD
CITIZENS, WE MUST LIVE.  OTHER RIGHTS, EVEN THE MOST BASIC, ARE
ILLUSORY IF THE RIGHT TO VOTE IS UNDERMINED."  WESBERRY V. SANDERS. 
376 U.S. 1, 17 (1964). 

WESBERRY INVOLVED A FEDERAL ELECTION.  ARTICLE I, 2, OF THE FEDERAL
CONSTITUTION DECLARES THAT MEMBERS OF THE HOUSE SHOULD BE "CHOSEN EVERY
SECOND YEAR BY THE PEOPLE OF THE SEVERAL STATES"; AND THE SEVENTEENTH
AMENDMENT SAYS THAT SENATORS SHALL BE "ELECTED BY THE PEOPLE."  BUT THE
RIGHT TO VOTE IN STATE ELECTIONS IS ONE OF THE RIGHTS HISTORICALLY
"RETAINED BY THE PEOPLE" BY VIRTUE OF THE NINTH AMENDMENT AS WELL AS
INCLUDED IN THE PENUMBRA OF FIRST AMENDMENT RIGHTS.  AS MR. JUSTICE
BRENNAN STATED IN STORER V. BROWN, POST, AT 756, "THE RIGHT TO VOTE
DERIVES FROM THE RIGHT OF ASSOCIATION THAT IS AT THE CORE OF THE FIRST
AMENDMENT, PROTECTED FROM STATE INFRINGEMENT BY THE FOURTEENTH
AMENDMENT."  (DISSENTING OPINION.) 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING IN PART. 

FOR ME, THE DIFFICULTY WITH THE CALIFORNIA ELECTION SYSTEM IS THE
ABSENCE OF A REALISTIC ALTERNATIVE ACCESS TO THE BALLOT FOR THE
CANDIDATE WHOSE INDIGENCY RENDERS IT IMPOSSIBLE FOR HIM TO PAY THE
PRESCRIBED FILING FEE. 

IN ADDITION TO A PROPER PETITIONING PROCESS SUGGESTED BY THE COURT
IN ITS OPINION, ANTE, AT 718, I WOULD REGARD A WRITE-IN PROCEDURE, FREE
OF FEE, AS AN ACCEPTABLE ALTERNATIVE.  PRIOR TO 1968, CALIFORNIA
ALLOWED THIS, AND WRITE-IN VOTES WERE COUNTED, ALTHOUGH NO PRIOR FEE
HAD BEEN PAID.  BUT THE PRIOR FEE REQUIREMENT FOR THE WRITE-IN
CANDIDATE WAS INCORPORATED INTO THE STATE'S ELECTIONS CODE IN THAT
YEAR, LAWS 1968, C. 79, 3, AND IS NOW 18603 (B) OF THE CODE.  IT IS
THAT ADDITION, BY AMENDMENT, THAT SERVES TO DENY THE PETITIONER THE
EQUAL PROTECTION GUARANTEED TO HIM BY THE FOURTEENTH AMENDMENT. 
COMM'N, 278 U.S. 515, 525 - 526 (1929); TRUAX V. CORRIGAN, 257 U.S.
312, 341 - 342 (1921).  THE CODE ITSELF PROVIDES FOR SEVERABILITY. 
CAL. ELECTIONS CODE 48.  THAT, HOWEVER, IS AN ISSUE FOR THE CALIFORNIA
COURTS TO DECIDE.  HC #722 

I WOULD HOLD THAT THE CALIFORNIA ELECTION STATUTES ARE
UNCONSTITUTIONAL INSOFAR AS THEY PRESENTLY DENY ACCESS TO THE BALLOT. 
IF 18603(B) WERE TO BE STRICKEN, THE CODE, AS BEFORE, WOULD PERMIT
WRITE-IN ACCESS WITH NO PRIOR FEE.  THE PRESENCE OF THAT ALTERNATIVE,
ALTHOUGH NOT PERFECT, SURELY PROVIDES THE INDIGENT WOULD-BE CANDIDATE
WITH AS MUCH EASE OF ACCESS TO THE BALLOT AS THE ALTERNATIVE OF
OBTAINING A LARGE NUMBER OF PETITION SIGNATURES IN A RELATIVELY SHORT
TIME.  SEE STORER V. BROWN, POST, AT 738 - 746.  THE COURT SEEMINGLY
WOULD REJECT A WRITE-IN ALTERNATIVE WHILE ACCEPTING MANY PETITION
ALTERNATIVES.  IN MY VIEW, A WRITE-IN PROCEDURE, SUCH AS CALIFORNIA'S
BEFORE 1968, SATIFIES THE DEMANDS OF THE EQUAL PROTECTION CLAUSE AS
WELL AS MOST PETITIONING PROCEDURES.  I, THEREFORE, JOIN THE COURT IN
REVERSING THE ORDER OF THE SUPREME COURT OF CALIFORNIA DENYING
PETITIONER'S PETITION FOR WRIT OF MANDATE AND IN REMANDING THE CASE FOR
FURTHER PROCEEDINGS. 

MARGUERITE M. BUCKLEY ARGUED THE CAUSE FOR PETITIONER.  WITH HER ON
THE BRIEFS WERE A.L. WIRIN AND FRED OKRAND. 

EDWARD H. GAYLORD ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS JOHN H. LARSON. 
..END :











STORER V. BROWN, 415 U.S. 724 


       STORER ET AL. V. BROWN, SECRETARY OF STATE OF CALIFORNIA, ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

        NO. 72 - 812.  ARGUED NOVEMBER 5, 1973 -- DECIDED MARCH 26,

           1974;

TOGETHER WITH NO. 72 - 6050, FROMMHAGEN V. BROWN, SECRETARY

          OF THE STATE OF CALIFORNIA, ET AL., ALSO ON APPEAL FROM

           THE SAME COURT.  AFFIRMED IN PART, VACATED AND REMANDED

           IN PART. 


    SECTION 6830(D) (SUPP. 1974) OF THE CALIFORNIA ELECTIONS CODE

  FORBIDS BALLOT POSITION TO AN INDEPENDENT CANDIDATE FOR ELECTIVE

  PUBLIC OFFICE IF HE HAD A REGISTERED AFFILIATION WITH A QUALIFIED

  POLITICAL PARTY WITHIN ONE YEAR PRIOR TO THE IMMEDIATELY

  PRECEDING PRIMARY ELECTION; 6831 (1961) REQUIRES AN INDEPENDENT

  CANDIDATE'S NOMINATING PAPERS TO BE SIGNED BY NO LESS THAN 5% NOR

  MORE THAN 6% OF THE ENTIRE VOTE CAST IN THE PRECEDING GENERAL

  ELECTION; 6833 (SUPP. 1974) REQUIRES ALL SUCH SIGNATURES TO BE

OBTAINED DURING A 24-DAY PERIOD FOLLOWING THE PRIMARY AND ENDING

  60 DAYS PRIOR TO THE GENERAL ELECTION; AND 6830(C) (SUPP. 1974)

  REQUIRES THAT NONE OF SUCH SIGNATURES BE THOSE OF PERSONS WHO

  VOTED AT THE PRIMARY.  APPELLANTS STORER AND FROMMHAGEN WERE

  DISQUALIFIED UNDER 6830 (D) (SUPP. 1974) FOR BALLOTS STATUS AS

  INDEPENDENT CANDIDATES FOR CONGRESS IN THE 1972 CALIFORNIA

  ELECTIONS BECAUSE THEY WERE AFFILIATED WITH A QUALIFIED PARTY NO

  MORE THAN SIX MONTHS PRIOR TO THE PRIMARY.  APPELLANTS HALL AND

  TYNER WERE DISQUALIFIED FOR BALLOT STATUS AS INDEPENDENT

  CANDIDATES FOR PRESIDENT AND VICE PRESIDENT IN THE SAME ELECTION

  FOR FAILURE TO MEET PETITION REQUIREMENTS.  APPELLANTS BROUGHT

  ACTIONS CHALLENGING THE CONSTITUTIONALITY OF THE ABOVE

  PROVISIONS, CLAIMING THAT THEIR COMBINED EFFECT INFRINGED ON

  RIGHTS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  A

  THREE-JUDGE DISTRICT COURT DISMISSED THE COMPLAINTS, CONCLUDING

  THAT THE STATUTES SERVED A SUFFICIENTLY IMPORTANT STATE INTEREST

  TO SUSTAIN THEIR CONSTITUTIONALITY.  HELD: 

     1.  SECTION 6830(D) (SUPP. 1974) IS NOT UNCONSTITUTIONAL, AND

  APPELLANTS STORER AND FROMMHAGEN (WHO WERE AFFILIATED WITH A

  QUALIFIED PARTY NO MORE THAN SIX MONTHS BEFORE THE PRIMARY) WERE

  PROPERLY BARRED FROM THE BALLOT AS A RESULT OF ITS APPLICATION. 

  PP. 728 - 737. 

     (A) THE PROVISION REFLECTS A GENERAL STATE POLICY AIMED AT

  MAINTAINING THE INTEGRITY OF THE VARIOUS ROUTES TO THE BALLOT,

  AND INVOLVES NO DISCRIMINATION AGAINST INDEPENDENTS.  THOUGH AN

  INDEPENDENT CANDIDATE MUST BE CLEAR OF PARTY AFFILIATIONS FOR A

  YEAR BEFORE THE PRIMARY, A PARTY CANDIDATE UNDER 6490 (SUPP.

  1974) OF THE CODE MUST NOT HAVE BEEN REGISTERED WITH ANOTHER

  PARTY FOR A YEAR BEFORE HE FILES HIS DECLARATION, WHICH MUST BE

DONE NOT LESS THAN 83 DAYS AND NOT MORE THAN 113 DAYS PRIOR TO

  THE PRIMARY.  PP. 733 - 734. 

     (B) THE PROVISION PROTECTS THE DIRECT PRIMARY PROCESS, WHICH
IS

  AN INTEGRAL PART OF THE ENTIRE ELECTION PROCESS, BY REFUSING TO

RECOGNIZE INDEPENDENT CANDIDATES WHO DO NOT MAKE EARLY PLANS TO

  LEAVE A PARTY AND TAKE THE ALTERNATIVE COURSE TO THE BALLOT;

  WORKS AGAINST INDEPENDENT CANDIDACIES PROMPTED BY SHORT-RANGE

  POLITICAL GOALS, PIQUE, OR A PERSONAL QUARREL; IS A SUBSTANTIAL

  BARRIER TO A PARTY FIELDING AN "INDEPENDENT" CANDIDATE TO CAPTURE

  AND BLEED OFF VOTES IN THE GENERAL ELECTION THAT MIGHT WELL GO TO

  ANOTHER PARTY; AND THUS FURTHERS THE STATE'S COMPELLING INTEREST

  IN THE STABILITY OF ITS POLITICAL SYSTEM, OUTWEIGHING THE

  INTEREST THE CANDIDATE AND HIS SUPPORTERS MAY HAVE IN MAKING A

 LATE RATHER THAN AN EARLY DECISION TO SEEK INDEPENDENT BALLOT

  STATUS.  PP. 734 - 735. 

     2.  FURTHER PROCEEDINGS SHOULD BE HAD IN THE DISTRICT COURT TO

  PERMIT ADDITIONAL FINDINGS CONCERNING THE EXTENT OF THE BURDEN

  IMPOSED ON INDEPENDENT CANDIDATES FOR PRESIDENT AND VICE

  PRESIDENT UNDER CALIFORNIA LAW, PARTICULARLY WITH RESPECT TO

WHETHER 6831 (1961) AND 6833 (SUPP. 1974) PLACE AN

  UNCONSTITUTIONAL RESTRICTION ON ACCESS BY APPELLANTS HALL AND

TYNER TO THE BALLOT.  PP. 738 - 746. 

     (A) IT SHOULD BE DETERMINED WHETHER THE AVAILABLE POOL OF

  POSSIBLE SIGNERS OF THE NOMINATING PAPERS IS SO DIMINISHED BY THE

DISQUALIFICATION OF THOSE WHO VOTED IN THE PRIMARY THAT THE 5%

  PROVISION, WHICH AS APPLIED HERE APPARENTLY IMPOSES A 325,000-

  SIGNATURE REQUIREMENT, TO BE SATISFIED IN 24 DAYS, IS UNDULY

  ONEROUS.  PP. 739 - 740. 

     (B) WHILE THE DISTRICT COURT APPARENTLY TOOK THE VIEW THAT

  CALIFORNIA LAW DISQUALIFIED ANYONE WHO VOTED IN THE PRIMARY FROM

 SIGNING AN INDEPENDENT'S PETITION, WHETHER OR NOT THE VOTE WAS

  CONFINED TO NONPARTISAN MATTERS, IT WOULD BE DIFFICULT ON THE

  RECORD BEFORE THIS COURT TO ASCERTAIN ANY RATIONAL GROUND, LET

  ALONE A COMPELLING INTEREST, FOR DISQUALIFYING NONPARTISAN

  PRIMARY VOTERS.  PP. 741 - 742. 

    (C) ONCE THE DISTRICT COURT ASCERTAINS THE NUMBER OF SIGNATURES

  REQUIRED IN THE 24-DAY PERIOD, ALONG WITH THE TOTAL POOL FROM

  WHICH THEY MAY BE DRAWN, THE COURT THEN, IN DETERMINING WHETHER

  IN THE CONTEXT OF CALIFORNIA POLITICS A REASONABLY DILIGENT

  INDEPENDENT CANDIDATE COULD BE EXPECTED TO SATISFY THE SIGNATURE

  REQUIREMENTS OR WILL ONLY RARELY SUCCEED IN SECURING BALLOT

  PLACEMENT, SHOULD CONSIDER NOT ONLY PAST EXPERIENCE, BUT ALSO THE

  RELATIONSHIP BETWEEN THE SHOWING OF SUPPORT THROUGH A PETITION

REQUIREMENT AND THE PERCENTAGE OF THE VOTE THE STATE CAN

REASONABLY EXPECT OF A CANDIDATE WHO ACHIEVES BALLOT STATUS IN

  THE GENERAL ELECTION.  PP. 742 - 746. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

C.J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 

  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND

  MARSHALL, JJ., JOINED, POST, P. 755. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE CALIFORNIA ELECTIONS CODE FORBIDS BALLOT POSITION TO AN
INDEPENDENT CANDIDATE FOR ELECTIVE PUBLIC OFFICE IF HE VOTED IN THE
IMMEDIATELY PRECEDING PRIMARY, 6830(C) (SUPP. 1974), /1/ OR IF HE HAD A
REGISTERED AFFILIATION WITH A QUALIFIED POLITICAL PARTY AT ANY TIME
WITHIN ONE YEAR PRIOR TO THE IMMEDIATELY PRECEDING PRIMARY ELECTION. 
6830(D) (SUPP. 1974).  THE INDEPENDENT CANDIDATE MUST ALSO FILE
NOMINATION PAPERS SIGNED BY NO LESS THAN 5% NOR MORE THAN 6% OF THE
ENTIRE VOTE CAST IN THE PRECEDING GENERAL ELECTION IN THE AREA FOR
WHICH THE CANDIDATE SEEKS TO RUN.  6831 (1961).  ALL OF THESE
SIGNATURES MUST BE OBTAINED DURING A 24-DAY PERIOD FOLLOWING THE
PRIMARY AND ENDING 60 DAYS PRIOR TO THE GENERAL ELECTION, 6833 (SUPP.
1974), AND NONE OF THE SIGNATURES MAY BE GATHERED FROM PERSONS WHO VOTE
AT THE PRIMARY ELECTION.  6830(C) (SUPP. 1974).  THE CONSTITUTIONALITY
OF THESE PROVISIONS IS CHALLENGED HERE AS INFRINGING ON RIGHTS
GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS AND AS ADDING
QUALIFICATIONS FOR THE OFFICE OF UNITED STATES CONGRESS, CONTRARY TO
ART. 1, 2, C.L. 2, OF THE CONSTITUTION. 

PRIOR TO THE 1972 ELECTIONS, APPELLANTS STORER, FROMMHAGEN, HALL,
AND TYNER, ALONG WITH CERTAIN OF THEIR SUPPORTERS, FILED THEIR ACTIONS
/2/  TO HAVE THE ABOVE SECTIONS OF THE ELECTIONS CODE DECLARED
UNCONSTITUTIONAL AND THEIR ENFORCEMENT ENJOINED.  STORER AND FROMMHAGEN
EACH SOUGHT BALLOT STATUS AS AN INDEPENDENT CANDIDATE FOR CONGRESS IN
HIS DISTRICT.  /3/  BOTH COMPLAINED ABOUT THE PARTY DISAFFILIATION
REQUIREMENT OF 6830(D) (SUPP. 1974) AND ASSERTED THAT THE COMBINED
EFFECTS OF THE PROVISIONS WERE UNCONSTITUTIONAL BURDENS ON THEIR FIRST
AND FOURTEENTH AMENDMENT RIGHTS.  HALL AND TYNER CLAIMED THE RIGHT TO
BALLOT POSITION AS INDEPENDENT CANDIDATES FOR PRESIDENT AND VICE
PRESIDENT OF THE UNITED STATES.  THEY WERE MEMBERS OF THE COMMUNIST
PARTY BUT THAT PARTY HAD NOT QUALIFIED FOR BALLOT POSITION IN
CALIFORNIA.  THEY, TOO, COMPLAINED OF THE COMBINED EFFECT OF THE
INDICATED SECTIONS OF THE ELECTIONS CODE ON THEIR ABILITY TO ACHIEVE
BALLOT POSITION. 

A THREE-JUDGE DISTRICT COURT CONCLUDED THAT THE STATUTES SERVED A
SUFFICIENTLY IMPORTANT STATE INTEREST TO SUSTAIN THEIR
CONSTITUTIONALITY AND DISMISSED THE COMPLAINTS.  TWO SEPARATE APPEALS
WERE TAKEN FROM THE JUDGMENT.  WE NOTED PROBABLE JURISDICTION AND
CONSOLIDATED THE CASES FOR ORAL ARGUMENT.  410 U.S. 965 (1973). 

        I 

WE AFFIRM THE JUDGMENT OF THE DISTRICT COURT INSOFAR AS IT REFUSED
RELIEF TO STORER AND FROMMHAGEN WITH RESPECT TO THE 1972 GENERAL
ELECTION.  BOTH MEN WERE REGISTERED DEMOCRATS UNTIL EARLY IN 1972,
STORER UNTIL JANUARY AND FROMMHAGEN UNTIL MARCH OF THAT YEAR.  THIS
AFFILIATION WITH A QUALIFIED POLITICAL PARTY WITHIN A YEAR PRIOR TO THE
1972 PRIMARY DISQUALIFIED BOTH MEN UNDER 6830 (D) (SUPP. 1974); AND IN
OUR VIEW THE STATE OF CALIFORNIA WAS NOT PROHIBITED BY THE UNITED
STATES CONSTITUTION FROM ENFORCING THAT PROVISION AGAINST THESE MEN. 

IN WILLIAMS V. RHODES, 393 U.S. 23 (1968), THE COURT HELD THAT
ALTHOUGH THE CITIZENS OF A STATE ARE FREE TO ASSOCIATE WITH ONE OF THE
TWO MAJOR POLITICAL PARTIES, TO PARTICIPATE IN THE NOMINATION OF THEIR
CHOSEN PARTY'S CANDIDATES FOR PUBLIC OFFICE AND THEN TO CAST THEIR
BALLOTS IN THE GENERAL ELECTION, THE STATE MUST ALSO PROVIDE FEASIBLE
MEANS FOR OTHER POLITICAL PARTIES AND OTHER CANDIDATES TO APPEAR ON THE
GENERAL ELECTION BALLOT.  THE OHIO LAW UNDER EXAMINATION IN THAT CASE
MADE NO PROVISION FOR INDEPENDENT CANDIDATES AND THE REQUIREMENTS FOR
ANY BUT THE TWO MAJOR PARTIES QUALIFYING FOR THE BALLOT WERE SO
BURDENSOME THAT IT WAS "VIRTUALLY IMPOSSIBLE" FOR OTHER PARTIES, NEW OR
OLD, TO ACHIEVE BALLOT POSITION FOR THEIR CANDIDATES.  ID., AT 25. 
BECAUSE THESE RESTRICTIONS, WHICH WERE CHALLENGED UNDER THE EQUAL
PROTECTION CLAUSE, SEVERELY BURDENED THE RIGHT TO ASSOCIATE FOR
POLITICAL PURPOSES AND THE RIGHT TO VOTE EFFECTIVELY, THE COURT,
BORROWING FROM OTHER CASES, RULED THAT THE DISCRIMINATIONS AGAINST NEW
PARTIES AND THEIR CANDIDATES HAD TO BE JUSTIFIED BY COMPELLING STATE
INTERESTS.  THE COURT RECOGNIZED THE SUBSTANTIAL STATE INTEREST IN
ENCOURAGING COMPROMISE AND POLITICAL STABILITY, IN ATTEMPTING TO ENSURE
THAT THE ELECTION WINNER WILL REPRESENT A MAJORITY OF THE COMMUNITY AND
IN PROVIDING THE ELECTORATE WITH AN UNDERSTANDABLE BALLOT AND INFERRED
THAT "REASONABLE REQUIREMENTS FOR BALLOT POSITION," ID., AT 32, WOULD
BE ACCEPTABLE.  BUT THESE IMPORTANT INTERESTS WERE DEEMED INSUFFICIENT
TO WARRANT BURDENS SO SEVERE AS TO CONFER AN EFFECTIVE POLITICAL
MONOPOLY ON THE TWO MAJOR PARTIES.  THE FIRST AND FOURTEENTH
AMENDMENTS, INCLUDING THE EQUAL PROTECTION CLAUSE OF THE LATTER,
REQUIRED AS MUCH. 

IN CHALLENGING 6830(D) (SUPP. 1974), APPELLANTS RELY ON WILLIAMS V.
RHODES AND ASSERT THAT UNDER THAT CASE AND SUBSEQUENT CASES DEALING
FWITH EXCLUSIONARY VOTING AND CANDIDATE QUALIFICATIONS, E. G., DUNN V.
BLUMSTEIN, 405 U.S. 330 (1972); BULLOCK V. CARTER 405 U.S. 134 (1972);
KRAMER V. UNION FREE SCHOOL DISTRICT, 395 U.S. 621 (1969), SUBSTANTIAL
BURDENS ON THE RIGHT TO VOTE OR TO ASSOCIATE FOR POLITICAL PURPOSES ARE
CONSTITUTIONALLY SUSPECT AND INVALID UNDER THE FIRST AND FOURTEENTH
AMENDMENTS AND UNDER THE EQUAL PROTECTION CLAUSE UNLESS ESSENTIAL TO
SERVE A COMPELLING STATE INTEREST.  THESE CASES, HOWEVER, DO NOT
NECESSARILY CONDEMN 6830(D) (SUPP. 1974).  IT HAS NEVER BEEN SUGGESTED
THAT THE WILLIAMS-KRAMER-DUNN RULE AUTOMATICALLY INVALIDATES EVERY
SUBSTANTIAL RESTRICTION ON THE RIGHT TO VOTE OR TO ASSOCIATE.  NOR
COULD THIS BE THE CASE UNDER OUR CONSTITUTION WHERE THE STATE ARE GIVEN
THE INITIAL TASK OF DETERMINING THE QUALIFICATIONS OF VOTERS WHO WILL
ELECT MEMBERS OF CONGRESS.  ATE.  1, 2, CL. 1.  ALSO ART. 1, 4, CL. 1,
AUTHORIZES THE STATES TO PRESCRIBE "(THE TIMES, PLACES AND MANNER OF
HOLDING ELECTIONS FOR SENATORS AND REPRESENTATIVES."  MOREOVER, AS A
PRACTICAL MATTER, THERE MUST BE A SUBSTANTIAL REGULATION OF ELECTIONS
IF THEY ARE TO BE FAIR AND HONEST AND IF SOME SORT OF ORDER, RATHER
THAN CHAOS, IS TO ACCOMPANY THE DEMOCRATIC PROCESSES.  IN ANY EVENT,
THE STATE HAVE EVOLVED COMPREHENSIVE, AND IN MANY RESPECTS COMPLEX,
ELECTION CODES REGULATING IN MOST SUBSTANTIAL WAYS, WITH RESPECT TO
BOTH FEDERAL AND STATE ELECTIONS, THE TIME, PLACE, AND MANNER OF
HOLDING PRIMARY AND GENERAL ELECTIONS, THE REGISTRATION AND
QUALIFICATIONS OF VOTERS, AND THE SELECTION AND QUALIFICATION OF
CANDIDATES. 

IT IS VERY UNLIKELY THAT ALL OR EVEN A LARGE PORTION OF THE STATE
ELECTION LAWS WOULD FAIL TO PASS MUSTER UNDER OUR CASES; AND THE RULE
FASHIONED BY THE COURT TO PASS ON CONSTITUTIONAL CHALLENGES TO SPECIFIC
PROVISIONS OF ELECTION LAWS PROVIDES NO LITMUS-PAPER TEST FOR
SEPARATING THOSE RESTRICTIONS THAT ARE VALID FROM THOSE THAT ARE
INVIDIOUS UNDER THE EQUAL PROTECTION CLAUSE.  THE RULE IS NOT SELF
EXECUTING AND IS NO SUBSTITUTE FOR THE HARD JUDGMENTS THAT MUST BE
MADE.  DECISION IN THIS CONTEXT, AS IN OTHERS, IN VERY MUCH A "MATTER
OF DEGREE," DUNN V. BLUMSTEIN, SUPRA, AT 348, VERY MUCH A MATTER OF
"CONSIDERING) THE FACTS AND CIRCUMSTANCES BEHIND THE LAW, THE INTERESTS
WHICH THE STATE CLAIMS TO BE PROTECTING, AND THE INTERESTS OF THOSE WHO
ARE DISADVANTAGED BY THE CLASSIFICATION."  WILLIAMS V. RHODES, SUPRA,
AT 30; DUNN V. BLUMSTEIN, SUPRA, AT 335.  WHAT THE RESULT OF THIS
PROCESS WILL BE IN ANY SPECIFIC CASE MAY BE VERY DIFFICULT TO PREDICT
WITH GREAT ASSURANCE. 

THE JUDGMENT IN DUNN V. BLUMSTEIN INVALIDATED THE TENNESSEE ONE-YEAR
RESIDENCE REQUIREMENT FOR VOTING BUT AGREED THAT THE STATE'S INTEREST
WAS OBVIOUSLY SUFFICIENT TO LIMIT VOTING TO RESIDENTS, TO REQUIRE
REGISTRATION FOR VOTING, AND TO CLOSE THE REGISTRATION BOOKS AT SOME
POINT PRIOR TO THE ELECTION, A DEADLINE WHICH EVERY RESIDENT MUST MEET
IF HE IS TO CAST HIS VOTE AT THE POLLS.  SUBSEQUENTLY, THREE-JUDGE
DISTRICT COURTS DIFFERED OVER THE VALIDITY OF A REQUIREMENT THAT VOTERS
BE REGISTERED FOR 50 DAYS PRIOR TO ELECTION.  THIS COURT, ALTHOUGH
DIVIDED, SUSTAINED THE PROVISION.  BURNS V. FORTSON, 410 U.S. 686
(1973); MARSTON V. LEWIS, 410 U.S. 679 (1973). 

ROSARIO V. ROCKEFELLER, 410 U.S. 752 (1973), IS MORE RELEVANT TO THE
PROBLEM BEFORE US.  THAT CASE DEALT WITH A PROVISION THAT TO VOTE IN A
PARTY PRIMARY THE VOTER MUST HAVE REGISTERED AS A PARTY MEMBER 30 DAYS
PRIOR TO THE PREVIOUS GENERAL ELECTION, A DATE EIGHT MONTHS PRIOR TO
THE PRESIDENTIAL PRIMARY AND 11 MONTHS PRIOR TO NONPRESIDENTIAL
PRIMARY.  THOSE FAILING TO MEET THIS DEADLINE, WITH SOME EXCEPTIONS,
WERE BARRED FROM VOTING AT EITHER PRIMARY.  WE SUSTAINED THE PROVISION
AS "IN NO SENSE INVIDICUS OR ARBITRARY," BECAUSE IT WAS "TIED TO (THE)
PARTICULARIZED LEGITIMATE PURPOSE," ID., AT 762, OF PREVENTING
INTERPARTY RAIDING, A MATTER WHICH BORE ON "THE INTEGRITY OF THE
ELECTORAL PROCESS."  ID., AT 761. 

LATER THE COURT STRUCK DOWN SIMILAR ILLINOIS PROVISIONS AIMED AT THE
SAME EVIL, WHERE THE DEADLINE FOR CHANGING PARTY REGISTRATION WAS 23
MONTHS PRIOR TO THE PRIMARY DATE.  KUSPER V. PONTIKES, 414 U.S. 51
(193).  ONE CONSEQUENCE WAS THAT A VOTER WISHING TO CHANGE PARTIES
COULD NOT VOTE IN ANY PRIMARY THAT OCCURRED DURING THE WAITING PERIOD. 
THE COURT DID NOT RETREAT FROM ROSARIO OR QUESTION THE RECOGNITION IN
THAT CASE OF THE STATES' STRONG INTEREST IN MAINTAINING THE INTEGRITY
OF THE POLITICAL PROCESS BY PREVENTING INTERPARTY RAIDING.  ALTHOUGH
THE 11-MONTH REQUIREMENT IMPOSED IN NEW YORK HAD BEEN ACCEPTED AS
NECESSARY FOR AN EFFECTIVE REMEDY, THE COURT WAS UNCONVINCED THAT THE
23-MONTH PERIOD ESTABLISHED IN ILLINOIS WAS AN ESSENTIAL INSTRUMENT TO
COUNTER THE EVIL AT WHICH IT WAS AIMED. 

OTHER VARIABLES MUST BE CONSIDERED WHERE QUALIFICATIONS FOR
CANDIDATES RATHER THAN FOR VOTERS ARE AT ISSUE.  IN JENNESS V. FORTSON,
403 U.S. 431 (1971), WE UPHELD A REQUIREMENT THAT INDEPENDENT
CANDIDATES MUST DEMONSTRATE SUBSTANTIAL SUPPORT IN THE COMMUNITY BY
SECURING SUPPORTING SIGNATURES AMOUNTING TO 5% OF THE TOTAL REGISTERED
VOTERS IN THE LAST ELECTION FOR FILLING THE OFFICE SOUGHT BY THE
CANDIDATE.  THE COURT SAID: 

     "THERE IS SURELY AN IMPORTANT STATE INTEREST IN REQUIRING SOME

  PRELIMINARY SHOWING OF A SIGNIFICANT MODICUM OF SUPPORT BEFORE

  PRINTING THE NAME OF A POLITICAL ORGANIZATION'S CANDIDATE ON THE

  BALLOT--THE INTEREST, IF NO OTHER, IN AVOIDING CONFUSION,

  DECEPTION, AND EVEN FRUSTRATION OF THE DEMOCRATIC PROCESS AT THE

  GENERAL ELECTION."  ID., AT 442. 

SUBSEQUENTLY, IN BULLOCK V. CARTER, 405 U.S., AT 145, A UNANIMOUS
COURT SAID: 

     "THE COURT HAS RECOGNIZED THAT A STATE HAS A LEGITIMATE

  INTEREST IN REGULATING THE NUMBER OF CANDIDATES ON THE BALLOT. 

  JENNESS V. FORTSON, 401 U.S., AT 442; WILLIAMS V. RHODES, 393

  U.S., AT 32.  IN SO DOING, THE STATE UNDERSTANDABLY AND PROPERLY

  SEEKS TO PREVENT THE CLOGGING OF ITS ELECTION MACHINERY, AVOID

  VOTER CONFUSION, AND ASSURE THAT THE WINNER IS THE CHOICE OF A

  MAJORITY, OR AT LEAST A STRONG PLURALITY, OF THOSE VOTING,

  WITHOUT THE EXPENSE AND BURDEN OF RUNOFF ELECTIONS.  ALTHOUGH WE

  HAVE NO WAY OF GAUGING THE NUMBER OF CANDIDATES WHO MIGHT ENTER

PRIMARIES IN TEXAS IF ACCESS TO THE BALLOT WERE UNIMPEDED BY THE

  LARGE FILING FEES IN QUESTION HERE, WE ARE BOUND TO RESPECT THE

  LEGITIMATE OBJECTIVES OF THE STATE IN AVOIDING OVERCROWDED

  BALLOTS.  MOREOVER, A STATE HAS AN INTEREST, IF NOT A DUTY, TO

  PROTECT THE INTEGRITY OF ITS POLITICAL PROCESSES FROM FRIVOLOUS

  OR FRAUDULENT CANDIDACIES.  JENNESS V. FORTSON, 403 U.S., AT

  442." 

AGAINST THIS PATTERN OF DECISIONS WE HAVE NO HESITATION IN
SUSTAINING 6830(D) (SUPP. 1974).  IN CALIFORNIA, THE INDEPENDENT
CANDIDACY ROUTE TO OBTAINING BALLOT POSITION IS BUT A PART OF THE
CANDIDATE-NOMINATING PROCESS, AN ALTERNATIVE TO BEING NOMINATED IN ONE
OF THE DIRECT PARTY PRIMARIES.  THE INDEPENDENT CANDIDATE NEED NOT
STAND FOR PRIMARY ELECTION BUT MUST QUALIFY FOR THE BALLOT BY
DEMONSTRATING SUBSTANTIAL PUBLIC SUPPORT IN ANOTHER WAY.  OTHERWISE,
THE QUALIFICATIONS REQUIRED OF THE INDEPENDENT CANDIDATE ARE VERY
SIMILAR TO, OR IDENTICAL WITH, THOSE IMPOSED ON PARTY CANDIDATES. 
CANDIDATE SEEKING TO RUN IN A PARTY PRIMARY IF HE HAS BEEN "REGISTERED
AS AFFILIATED WITH A POLITICAL PARTY OTHER THAN THAT POLITICAL PARTY
THE NOMINATION OF WHICH HE SEEKS WITHIN 12 MONTHS IMMEDIATELY PRIOR TO
THE FILING OF THE DECLARATION."  MOREOVER, 6402 AND 6611 PROVIDE THAT A
CANDIDATE FWHO HAS BEEN DEFEATED IN A PARTY PRIMARY MAY NOT BE
NOMINATED AS AN INDEPENDENT OR BE A CANDIDATE OF ANY OTHER PARTY; AND
NO PERSON MAY FILE NOMINATION PAPERS FOR A PARTY NOMINATION AND AN
INDEPENDENT NOMINATION FOR THE SAME OFFICE, OR FOR MORE THAN ONE OFFICE
AT THE SAME ELECTION. 

THE REQUIREMENT THAT THE INDEPENDENT CANDIDATE NOT HAVE BEEN
AFFILIATED WITH A POLITICAL PARTY FOR A YEAR BEFORE THE PRIMARY IS
EXPRESSIVE OF A GENERAL STATE POLICY AIMED AT MAINTAINING THE INTEGRITY
OF THE VARIOUS ROUTES TO THE BALLOT.  IT INVOLVES NO DISCRIMINATION
AGAINST INDEPENDENTS.  INDEED, THE INDEPENDENT CANDIDATE MUST BE CLEAR
OF POLITICAL PARY AFFILIATIONS FOR A YEAR BEFORE THE PRIMARY; THE PARTY
CANDIDATE MUST NOT HAVE BEEN REGISTERED WITH ANOTHER PARTY FOR A YEAR
BEFORE HE FILES HIS DECLARATION, WHICH MUST BE DONE NOT LESS THAN 83
AND NOT MORE THAN 113 DAYS PRIOR TO THE PRIMARY.  6490 (SUPP. 1974). 
IN ROSARIO V. ROCKEFELLER, THERE WAS AN 11-MONTH WAITING PERIOD FOR
VOTER WHO WANTED TO CHANGE PARTIES.  HERE, A PERSON TERMINATING HIS
AFFILIATION WITH A POLITICAL PARTY MUST WAIT AT LEAST 12 MONTHS BEFORE
HE CAN BECOME A CANDIDATE IN ANOTHER PARTY'S PRIMARY OR AN INDEPENDENT
CANDIDATE FOR PUBLIC OFFICE.  THE STATE'S INTERESTS RECOGNIZED IN
ROSARIO ARE VERY SIMILAR TO THOSE THAT UNDERGIRD THE CALIFORNIA WAITING
PERIOD; AND THE EXTENT OF THE RESTRICTION IS NOT SIGNIFICANTLY
DIFFERENT.  IT IS TRUE THAT A CALIFORNIA CANDIDATE WHO DESIRES TO RUN
FOR OFFICE AS AN INDEPENDENT MUST ANTICIPATE HIS CANDIDACY
SUBSTANTIALLY IN ADVANCE OF HIS ELECTION CAMPAIGN, BUT THE REQUIRED
FORESIGHT IS LITTLE MORE THAN THE POSSIBLE 11 MONTHS EXAMINED IN
ROSARIO, AND ITS DIRECT IMPACT IS ON THE CANDIDATE, AND NOT VOTERS.  IN
ANY EVENT, NEITHER STORER NOR FROMMHAGEN IS IN POSITION TO COMPLAIN
THAT THE WAITING PERIOD IS ONE YEAR, FOR EACH OF THEM WAS AFFILIATED
WITH A QUALIFIED PARTY NO MORE THAN SIX MONTHS PRIOR TO THE PRIMARY. 
AS APPLIED TO THEM, 6830(D) (SUPP. 1974) IS VALID. 

AFTER LONG EXPERIENCE, CALIFORNIA CAME TO THE DIRECT PARTY PRIMARY
AS A DESIRABLE WAY OF NOMINATING CANDIDATES FOR PUBLIC OFFICE.  IT HAS
ALSO CAREFULLY DETERMINED WHICH PUBLIC OFFICES WILL BE SUBJECT TO
PARTISAN PRIMARIES AND THOSE THAT CALL FOR NONPARTISAN ELECTIONS.  /4/
MOREOVER, AFTER LONG EXPERIENCE WITH PERMITTING CANDIDATES TO RUN IN
THE PRIMARIES OF MORE THAN ONE PARTY, CALIFORNIA FORBADE THE CROSS
FILING PRACTICE IN 1959.  /5/ A CANDIDATE IN ONE PARTY PRIMARY MAY NOT
NOW RUN IN THAT OF ANOTHER; IF HE LOSES IN THE PRIMARY, HE MAY NOT RUN
AS AN INDEPENDENT; AND HE MUST NOT HAVE BEEN ASSOCIATED WITH ANOTHER
POLITICAL PARTY FOR A YEAR PRIOR TO THE PRIMARY.  SEE 6401, 6611.  THE
DIRECT PARTY PRIMARY IN CALIFORNIA IS NOT MERELY AN EXERCISE OR WARM-UP
FOR THE GENERAL ELECTION BUT AN INTEGRAL PART OF THE ENTIRE ELECTION
PROCESS.  /6/  THE INITIAL STAGE IN A TWO-STAGE PROCESS BY WHICH THE
PEOPLE CHOOSE THEIR PUBLIC OFFICERS.  IT FUNCTIONS TO WINNOW OUT AND
FINALLY REJECT ALL BUT THE CHOSEN CANDIDATES.  THE STATE'S GENERAL
POLICY IS TO HAVE CONTENDING FORCES WITHIN THE PARTY EMPLOY THE PRIMARY
CAMPAIGN AND PRIMARY ELECTION TO FINALLY SETTLE THEIR DIFFERENCES.  THE
GENERAL ELECTION BALLOT IS RESERVED FOR MAJOR STRUGGLES; IT IS NOT A
FORUM FOR CONTINUING INTRAPARTY FEUDS.  THE PROVISION AGAINST DEFEATED
PRIMARY CANDIDATES RUNNING AS INDEPENDENTS EFFECTUATES THIS AIM, THE
VISIBLE RESULT BEING TO PREVENT THE LOSERS FROM CONTINUING THE STRUGGLE
AND TO LIMIT THE NAMES ON THE BALLOT TO THOSE WHO HAVE WON THE
PRIMARIES AND THOSE INDEPENDENTS WHO HAVE PROPERLY QUALIFIED.  THE
PEOPLE, IT IS HOPED, ARE PRESENTED WITH UNDERSTANDABLE CHOICES AND THE
WINNER IN THE GENERAL ELECTION WITH SUFFICIENT SUPPORT TO GOVERN
EFFECTIVELY. 

PROTECTS THE DIRECT PRIMARY PROCESS BY REFUSING TO RECOGNIZE
INDEPENDENT CANDIDATES WHO DO NOT MAKE EARLY PLANS TO LEAVE A PARTY AND
TAKE THE ALTERNATIVE COURSE TO THE BALLOT.  IT WORKS AGAINST
INDEPENDENT CANDIDACIES PROMPTED BY SHORT-RANGE POLITICAL GOALS, PIQUE,
OR PERSONAL QUARREL.  IT IS ALSO A SUBSTANTIAL BARRIER TO A PARTY
FIELDING AN "INDEPENDENT" CANDIDATE TO CAPTURE AND BLEED OFF VOTES IN
THE GENERAL ELECTION THAT MIGHT WELL GO TO ANOTHER PARTY. 

A STATE NEED NOT TAKE THE COURSE CALIFORNIA HAS, BUT CALIFORNIA
APPARENTLY BELIEVES WITH THE FOUNDING FATHERS THAT SPLINTERED PARTIES
AND UNRESTRAINED FACTIONALISM MAY DO SIGNIFICANT DAMAGE TO THE FABRIC
OF GOVERNMENT.  SEE THE FEDERALIST, NO. 13 (MADISON).  IT APPEARS
OBVIOUS TO US THAT THE ONE-YEAR DISAFFILIATION PROVISION FURTHERS THE
STATE'S INTEREST IN THE STABILITY OF ITS POLITICAL SYSTEM.  WE ALSO
CONSIDER THAT INTEREST AS NOT ONLY PERMISSIBLE, BUT COMPELLING AND AS
OUTWEIGHING THE INTEREST THE CANDIDATE AND HIS SUPPORTERS MAY HAVE IN
MAKING A LATE RATHER THAN AN EARLY DECISION TO SEEK INDEPENDENT BALLOT
STATUS.  NOR DO WE HAVE REASON FOR CONCLUDING THAT THE DEVICE
CALIFORNIA CHOSE, 6830(D) (SUPP. 1974), WAS NOT AN ESSENTIAL PART OF
ITS OVERALL MECHANISM TO ACHIEVE ITS ACCEPTABLE GOALS.  AS WE INDICATED
IN ROSARIO, THE CONSTITUTION DOES NOT REQUIRE THE STATE TO CHOOSE
INEFFECTUAL MEANS TO ACHIEVE ITS AIMS.  TO CONCLUDE OTHERWISE MIGHT
SACRIFICE THE POLITICAL STABILITY OF THE SYSTEM OF THE STATE, WITH
PROFOUND CONSEQUENCES FOR THE ENTIRE CITIZENRY, MERELY IN THE INTEREST
OF PARTICULAR CANDIDATES AND THEIR SUPPORTERS HAVING INSTANTANEOUS
ACCESS TO THE BALLOT. 

WE CONCLUDE THAT 6830(D) (SUPP. 1974) IS NOT UNCONSTITUTIONAL, AND
STORER AND FROMMHAGEN WERE PROPERLY BARRED FROM THE BALLOT AS A RESULT
OF ITS APPLICATION.  /7/  CF. LIPPITT V. CIPOLLONE, 404 U.S. 1032
(1972).  HAVING REACHED THIS RESULT, THERE IS NO NEED TO EXAMINE THE
CONSTITUTIONALITY OF THE OTHER PROVISIONS OF THE ELECTIONS CODE AS THEY
OPERATE SINGLY OR IN COMBINATION AS APPLIED TO THESE CANDIDATES.  EVEN
IF THESE STATUTES WERE WHOLLY OR PARTLY UNCONSTITUTIONAL, STORER AND
FROMMHAGEN WERE STILL PROPERLY BARRED FROM HAVING THEIR NAMES PLACED ON
THE 1972 BALLOT.  ALTHOUGH WILLIAMS V. RHODES, 393 U.S., AT 34, SPOKE
IN TERMS OF ASSESSING THE "TOTALITY" OF THE ELECTION LAWS AS THEY
AFFECTED CONSTITUTIONAL RIGHTS, IF A CANDIDATE IS ABSOLUTELY AND
VALIDLY BARRED FROM THE BALLOT BY ONE PROVISION OF THE LAWS, HE CANNOT
CHALLENGE OTHER PROVISIONS AS APPLIED TO OTHER CANDIDATES.  THE CONCEPT
OF "TOTALITY" IS APPLICABLE ONLY IN THE SENSE THAT A NUMBER OF FACIALLY
VALID PROVISIONS OF ELECTION LAWS MAY OPERATE IN TANDEM TO PRODUCE
IMPERMISSIBLE BARRIERS TO CONSTITUTIONAL RIGHTS.  THE DISAFFILIATION
REQUIREMENT DOES NOT CHANGE ITS CHARACTER WHEN COMBINED WITH OTHER
PROVISIONS OF THE ELECTORAL CODE.  IT IS AN ABSOLUTE BAR TO CANDIDACY,
AND A VALID ONE.  THE DISTRICT COURT NEED NOT HAVE HEARD A CHALLENGE TO
THESE OTHER PROVISIONS OF THE CALIFORNIA ELECTIONS CODE BY ONE WHO DID
NOT SATISFY THE AGE REQUIREMENT FOR BECOMING A MEMBER OF CONGRESS, AND
THERE WAS NO MORE REASON TO CONSIDER THEM AT THE REQUEST OF STORER AND
FROMMHAGEN OR AT THE REQUEST OF VOTERS WHO DESIRE SUPPORT UNQUALIFIED
CANDIDATES

II 

WE COME TO DIFFERENT CONCLUSIONS WITH RESPECT TO HALL AND TYNER. 
/9/  AS TO THESE TWO MEN WE VACATE THE JUDGMENT OF THE DISTRICT COURT
AND REMAND THE CASE FOR FURTHER PROCEEDINGS TO DETERMINE WHETHER THE
CALIFORNIA ELECTION LAWS PLACE AN UNCONSTITUTIONAL BURDEN ON THEIR
ACCESS TO THE BALLOT. 

WE START WITH THE PROPOSITION THAT THE REQUIREMENTS FOR AN
INDEPENDENT'S ATTAINING A PLACE ON THE GENERAL ELECTION BALLOT CAN BE
UNCONSTITUTIONALLY SEVERE, WILLIAMS V. RHODES, SUPRA.  WE MUST,
THEREFORE, INQUIRE AS TO THE NATURE, EXTENT, AND LIKELY IMPACT OF THE
CALIFORNIA REQUIREMENTS. 

BEYOND THE ONE-YEAR PARTY DISAFFILIATION CONDITION AND THE RULE
AGAINST VOTING IN THE PRIMARY, BOTH OF WHICH HALL APPARENTLY SATISFIED,
IT WAS NECESSARY FOR AN INDEPENDENT CANDIDATE TO FILE A PETITION SIGNED
BY 5% OF THE TOTAL NUMBER OF VOTES CAST IN CALIFORNIA AT THE LAST
GENERAL ELECTION.  THIS PERCENTAGE, AS SUCH, DOES NOT APPEAR TO BE
EXCESSIVE, SEE JENNESS V. FORTSON, SUPRA, BUT TO ASSESS REALISTICALLY
WHETHER THE LAW IMPOSES EXCESSIVELY BURDENSOME REQUIREMENTS UPON
INDEPENDENT CANDIDATES IT IS NECESSARY TO KNOW OTHER CRITICAL FACTS
WHICH DO NOT APPEAR FROM THE EVIDENTIARY RECORD IN THIS CASE.  HC#738 

IT IS NECESSARY IN THE FIRST INSTANCE TO KNOW THE "ENTIRE VOTE" IN
THE LAST GENERAL ELECTION.  APPELLEES SUGGEST THAT 5% OF THAT FIGURE,
WHATEVER THAT IS, IS 325,000.  ASSUMING THIS TO BE THE CORRECT TOTAL
SIGNATURE REQUIREMENT, WE ALSO KNOW THAT IT MUST BE SATISFIED WITHIN A
PERIOD OF 24 DAYS BETWEEN THE PRIMARY AND THE GENERAL ELECTION.  BUT WE
DO NOT KNOW THE NUMBER OF QUALIFIED VOTERS FROM WHICH THE REQUIREMENT
MUST BE SATISFIED WITHIN THIS PERIOD TO TIME.  CALIFORNIA LAW
DISQUALIFIES FROM SIGNING THE INDEPENDENT'S PETITION ALL REGISTERED
VOTERS WHO VOTED IN THE PRIMARY.  IN THEORY, IT COULD BE THAT VOTING IN
THE PRIMARY WAS SO CLOSE TO 100% OF THOSE REGISTERED, AND NEW
REGISTRATIONS SINCE CLOSING THE BOOKS BEFORE PRIMARY DAY WERE SO LOW,
THAT ELIGIBLE SIGNERS OF AN UNAFFILIATED CANDIDATE'S PETITION WOULD
NUMBER LESS THAN THE TOTAL SIGNATURES REQUIRED.  THIS IS UNLIKELY, FOR
IT IS USUAL THAT A SUBSTANTIAL PERCENTAGE OF THOSE ELIGIBLE DO NOT VOTE
IN THE PRIMARY, AND THERE WERE UNDOUBTEDLY MILLIONS OF VOTERS QUALIFIED
TO VOTE IN THE 1972 PRIMARY.  BUT IT IS NOT AT ALL UNLIKELY THAT THE
AVAILABLE POOL OF POSSIBLE SIGNERS, AFTER ELIMINATING THE TOTAL PRIMARY
VOTE, WILL BE SUBSTANTIALLY SMALLER THAN THE TOTAL VOTE IN THE LAST
GENERAL ELECTION AND THAT IT WILL REQUIRE SUBSTANTIALLY MORE THAN 5% OF
THE ELIGIBLE POOL TO PRODUCE THE NECESSARY 325,000 SIGNATURES.  THIS
WOULD BE IN EXCESS, PERCENTAGE WISE, OF ANYTHING THE COURT HAS APPROVED
TO DATE AS A PRECONDITION TO AN INDEPENDENT'S SECURING A PLACE ON THE
BALLOT AND IN EXCESS OF THE 5% WHICH WE SAID IN JENNESS WAS HIGHER THAN
THE REQUIREMENT IMPOSED BY MOST STATE ELECTION CODES.  /10/ 

WE ARE QUITE SURE, THEREFORE, THAT FURTHER PROCEEDINGS SHOULD BE HAD
IN THE DISTRICT COURT TO PERMIT FURTHER FINDINGS WITH RESPECT TO THE
EXTENT OF THE BURDEN IMPOSED ON INDEPENDENT CANDIDATES FOR PRESIDENT
AND VICE PRESIDENT UNDER CALIFORNIA LAW.  STANDING ALONE, GATHERING
325,000 SIGNATURES IN 24 DAYS WOULD NOT APPEAR TO BE AN IMPOSSIBLE
BURDEN.  SIGNATURES AT THE RATE OF 13,820 PER DAY WOULD BE REQUIRED,
BUT 1,000 CANVASSERS COULD PERFORM THE TASK IF EACH GATHERED 14 SIGNERS
A DAY.  ON ITS FACE, THE STATUTE WOULD NOT APPEAR TO REQUIRE AN
IMPRACTICAL UNDERTAKING FOR ONE WHO DESIRES TO BE A CANDIDATE FOR
PRESIDENT.  BUT IT IS A SUBSTANTIAL REQUIREMENT; AND IF THE ADDITIONAL
LIKELIHOOD IS, AS IT SEEMS TO US TO BE, THAT THE TOTAL SIGNATURES
REQUIRED WILL AMOUNT TO A SUBSTANTIALLY HIGHER PERCENTAGE OF THE
AVAILABLE POOL THAN THE 5% STIPULATED IN THE STATUTE, THE
CONSTITUTIONAL CLAIM ASSERTED BY HALL IS NOT FRIVOLOUS.  BEFORE THE
CLAIM IS FINALLY DISMISSED, IT SHOULD BE DETERMINED WHETHER THE
AVAILABLE POOL IS SO DIMINISHED IN SIZE BY THE DISQUALIFICATION OF
THOSE WHO VOTED IN THE PRIMARY THAT THE 325,000-SIGNATURE REQUIREMENT,
TO BE SATISFIED IN 24 DAYS, IS TOO GREAT A BURDEN ON THE INDEPENDENT
CANDIDATES FOR THE OFFICES OF PRESIDENT AND VICE PRESIDENT. 

BECAUSE FURTHER PROCEEDINGS ARE REQUIRED, WE MUST RESOLVE CERTAIN
ISSUES THAT ARE IN DISPUTE IN ORDER THAT THE GROUND RULES FOR THE
ADDITIONAL FACTFINDING IN THE DISTRICT COURT WILL MORE CLEARLY APPEAR. 
FIRST, WE HAVE NO DOUBT THE VALIDITY OF DISQUALIFYING FROM SIGNING AN
INDEPENDENT CANDIDATE'S PETITION ALL THOSE REGISTERED VOTERS WHO VOTED
A PARTISAN BALLOT IN THE PRIMARY, ALTHOUGH THEY DID NOT VOTE FOR THE
OFFICE SOUGHT BY THE INDEPENDENT.  WE HAVE CONSIDERED THIS MATTER AT
GREATER LENGTH IN AMERICAN PARTY OF TEXAS V. WHITE, SEE POST, AT 785 -
786, AND WE MERELY REPEAT HERE THAT A STATE MAY CONFINE EACH VOTER TO
ONE IN ONE PRIMARY ELECTION, AND THAT TO MAINTAIN THE INTEGRITY OF THE
NOMINATING PROCESS THE STATE IS WARRANTED IN LIMITING THE VOTER TO
PARTICIPATING IN BUT ONE OF THE TWO ALTERNATIVE PROCEDURES, THE
PARTISAN OR THE NONPARTISAN, FOR NOMINATING CANDIDATES FOR THE GENERAL
ELECTION BALLOT. 

SECOND, THE DISTRICT COURT APPARENTLY HAD LITTLE DOUBT THAT THE
CALIFORNIA LAW DISQUALIFIED ANYONE VOTING IN THE PRIMARY ELECTION,
WHETHER OR NOT HE CONFINED HIS VOTE TO NONPARTISAN OFFICES AND
PROPOSITIONS.  /11/  THE STATE OF CALIFORNIA ASSERTS THIS TO BE AN
ERRONEOUS INTERPRETATION OF CALIFORNIA LAW AND CLAIMS THAT THE DISTRICT
COURT SHOULD HAVE ABSTAINED TO PERMIT THE CALIFORNIA COURTS TO ADDRESS
THE QUESTION.  IN ANY EVENT, THE STATE DOES NOT ATTEMPT TO JUSTIFY
DISQUALIFYING AS SIGNERS OF AN INDEPENDENT'S PETITION THOSE WHO VOTED
ONLY A NONPARTISAN BALLOT AT THE PRIMARY, SUCH AS INDEPENDENT VOTERS
WHO THEMSELVES WERE DISQUALIFIED FROM VOTING A PARTISAN BALLOT.  SEE
311 (SUPP. 1974).  WITH WHAT WE HAVE BEFORE US, IT WOULD BE DIFFICULT
TO ASCERTAIN ANY RATIONAL GROUND, LET ALONE A COMPELLING INTEREST, FOR
DISQUALIFYING NONPARTISAN VOTERS AT THE PRIMARY FROM SIGNING AN
INDEPENDENT CANDIDATE'S PETITION, AND WE THINK THE DISTRICT COURT
SHOULD RECONSIDER THE MATTER IN THE LIGHT OF TENTATIVE VIEWS EXPRESSED
HERE.  UNDER THE CONTROLLING CASES, THE DISTRICT COURT MAY, IF IT IS SO
ADVISED, ABSTAIN AND PERMIT THE CALIFORNIA COURTS TO CONSTRUE THE
CALIFORNIA STATUTE.  ON THE OTHER HAND, IT MAY BE THAT ADDING TO THE
QUALIFIED POOL OF SIGNERS ALL THOSE NONPARTISAN VOTERS AT THE PRIMARY
MAY MAKE SO LITTLE DIFFERENCE IN THE ULTIMATE ASSESSMENT OF THE OVERALL
BURDEN OF THE SIGNATURE REQUIREMENT THAT THE STATUS OF THE NONPARTISAN
VOTER IS IN FACT AN INSIGNIFICANT CONSIDERATION NOT MERITING
ABSTENTION.  /12/ 

THIRD, ONCE THE NUMBER OF SIGNATURES REQUIRED IN THE 24-DAY PERIOD
IS ASCERTAINED, ALONG WITH THE TOTAL POOL FROM WHICH THEY MAY BE DRAWN,
THERE WILL ARISE THE ENEVITABLE QUESTION FOR JUDGMENT: IN CONTEXT OF
CALIFORNIA POLITICS, COULD A REASONABLY DILIGENT INDEPENDENT CANDIDATE
BE EXPECTED TO SATISFY THE SIGNATURE REQUIREMENTS, OR WILL IT BE ONLY
RARELY THAT THE UNAFFILIATED CANDIDATE WILL SUCCEED IN GETTING ON THE
BALLOT?  PAST EXPERIENCE WILL BE A HELPFUL, IF NOT ALWAYS AN UNERRING,
GUIDE: IT WILL BE ONE THING IF INDEPENDENT CANDIDATES HAVE QUALIFIED
WITH SOME REGULARITY AND QUITE A DIFFERENT MATTER IF THEY HAVE NOT.  WE
NOTE HERE THAT THE STATE MENTIONS ONLY ONE INSTANCE OF AN INDEPENDENT
CANDIDATE QUALIFYING FOR ANY OFFICE UNDER 6430, BUT DISCLAIMS HAVING
MADE ANY COMPREHENSIVE SURVEY OF THE OFFICIAL RECORDS THAT WOULD
PERHAPS REVEAL THE TRUTH OF THE MATTER.  ONE OF THE DIFFICULTIES WILL
BE THAT THE NUMBER OF SIGNATURES REQUIRED WILL VARY WITH THE TOTAL VOTE
IN THE LAST ELECTION; THE TOTAL DISQUALIFYING VOTE AT THE PRIMARY
ELECTION AND HENCE THE SIZE OF THE ELIGIBLE POOL OF POSSIBLE SIGNERS
WILL ALSO VARY FROM ELECTION TO ELECTION.  ALSO TO BE CONSIDERED IS THE
RELATIONSHIP BETWEEN THE SHOWING OF SUPPORT THROUGH A PETITION
REQUIREMENT AND THE PERCENTAGE OF THE VOTE THE STATE CAN REASONABLY
EXPECT OF A CANDIDATE WHO ACHIEVES BALLOT STATUS IN THE GENERAL
ELECTION.     AS A PRELIMINARY MATTER, IT WOULD APPEAR THAT THE STATE,
HAVING DISQUALIFIED DEFEATED CANDIDATES AND RECENT DEFECTORS, HAS IN
LARGE PART ACHIEVED ITS MAJOR PURPOSE OF PROVIDING AND PROTECTING AN
EFFECTIVE DIRECT PRIMARY SYSTEM AND MUST JUSTIFY ITS INDEPENDENT
SIGNATURE REQUIREMENTS CHIEFLY BY ITS INTEREST IN HAVING CANDIDATES
DEMONSTRATE SUBSTANTIAL SUPPORT IN THE COMMUNITY SO THAT THE BALLOT, IN
TURN, MAY BE PROTECTED FROM FRIVOLOUS CANDIDACIES AND KEPT WITH IN
LIMITS UNDERSTANDABLE TO THE VOTER.  IF THE REQUIRED SIGNATURES
APPROACH 10% OF THE ELIGIBLE POOL OF VOTERS, IS IT NECESSARY TO SERVE
THE STATE'S COMPELLING INTEREST IN A MANAGEABLE BALLOT TO REQUIRE THAT
THE TASK OF SIGNATURE GATHERING BE CROWDED INTO 24 DAYS?  /13/  OF
COURSE, THE PETITION PERIOD MUST END AT A REASONABLE TIME BEFORE
ELECTION DAY TO PERMIT NOMINATION PAPERS TO BE VERIFIED.  NEITHER MUST
CALIFORNIA ABANDON ITS POLICY OF CONFINING EACH VOTER TO A SINGLE
NOMINATING ACT -- EITHER VOTING IN THE PARTISAN PRIMARY OR A SIGNATURE
ON AN INDEPENDENT PETITION.  BUT THE QUESTION REMAINS WHETHER SIGNATURE
GATHERING MUST AWAIT CONCLUSION OF THE PRIMARY.  IT WOULD NOT APPEAR
UNTENABLE TO PERMIT SOLICITATION OF SIGNATURES TO BEGIN BEFORE PRIMARY
DAY AND FINISH AFTERWARDS.  THOSE SIGNING BEFORE THE PRIMARY COULD
EITHER BE DEFINITELY DISQUALIFIED FROM A PARTISAN VOTE IN THE PRIMARY
ELECTION OR HAVE THE PRIVILEGE OF CANCELING THEIR PETITION SIGNATURES
BY THE ACT OF CASTING A BALLOT IN THE PRIMARY ELECTION.  AND IF THESE
ALTERNATIVES ARE UNACCEPTABLE, THERE WOULD REMAIN THE QUESTION WHETHER
IT IS ESSENTIAL TO DEMONSTRATE COMMUNITY SUPPORT TO GATHER SIGNATURES
OF SUBSTANTIALLY MORE THAN 5% OF THE GROUP FROM WHICH THE INDEPENDENT
IS PERMITTED TO SOLICIT SUPPORT.  /14/ 

APPELLEES INSIST, HOWEVER, THAT THE SIGNATURE REQUIREMENTS FOR
INDEPENDENT CANDIDATES ARE OF NO CONSEQUENCE BECAUSE IT HAS PROVIDED A
VALID WAY FOR NEW POLITICAL PARTIES TO QUALIFY FOR BALLOT POSITION, AN
ALTERNATIVE THAT HALL COULD HAVE PURSUED, BUT DID NOT.  UNDER 6430, NEW
POLITICAL PARTIES CAN BE RECOGNIZED AND QUALIFY THEIR CANDIDATE FOR
BALLOT POSITION IF 135 DAYS BEFORE A PRIMARY ELECTION IT APPEARS THAT
VOTERS EQUAL IN NUMBER TO AT LEAST 1% OF THE ENTIRE VOTE OF THE STATE
AT THE LAST PRECEDING GUBERNATORIAL ELECTION HAVE DECLARED TO THE
COUNTY CLERKS THEIR INTENTION TO AFFILIATE WITH THE NEW PARTY, OR IF,
BY THE SAME TIME, THE NEW PARTY FILES A PETITION WITH SIGNATURES EQUAL
IN NUMBER TO 10% OF THE LAST GUBERNATORIAL VOTE.  /15/  IT IS ARGUED
THAT THE 1% REGISTRATION REQUIREMENT IS FEASIBLE, HAS RECENTLY BEEN
RESORTED TO SUCCESSFULLY BY TWO NEW POLITICAL PARTIES NOW QUALIFIED FOR
THE CALIFORNIA BALLOT,AND GOES AS FAR AS CALIFORNIA CONSTITUTIONALLY
MUST GO IN PROVIDING AN ALTERNATIVE TO THE DIRECT PARTY PRIMARY OF THE
MAJOR PARTIES. 

IT MAY BE THAT THE 1% REGISTRATION REQUIREMENT IS A VALID CONDITION
TO EXTENDING BALLOT POSITION TO A NEW POLITICAL PARTY.  CF. AMERICAN
PARTY OF TEXAS, V. WHITE, POST, P. 767.  BUT THE POLITICAL PARTY AND
THE INDEPENDENT CANDIDATE APPROACHES TO POLITICAL ACTIVITY ARE ENTIRELY
DIFFERENT AND NEITHER IS A SATISFACTORY SUBSTITUTE FOR THE OTHER.  A
NEW PARTY ORGANIZATION CONTEMPLATES A STATEWIDE, ONGOING ORGANIZATION
WITH DISTINCTIVE POLITICAL CHARACTER.  ITS GOAL IS TYPICALLY TO GAIN
CONTROL OF THE MACHINERY OF STATE GOVERNMENT BY ELECTING ITS CANDIDATES
TO PUBLIC OFFICE.  FROM THE STANDPOINT OF A POTENTIAL SUPPORTER,
AFFILIATION WITH THE NEW PARTY WOULD MEAN GIVING UP HIS TIES WITH
ANOTHER PARTY OR SACRIFICING HIS OWN INDEPENDENT STATUS, EVEN THOUGH
HIS POSSIBLE INTEREST IN THE NEW PARTY CENTERS AROUND A PARTICULAR
CANDIDATE FOR A PARTICULAR OFFICE.  FOR THE CANDIDATE HIMSELF, IT WOULD
MEAN UNDERTAKING THE SERIOUS RESPONSIBILITIES OF QUALIFIED PARTY STATUS
UNDER CALIFORNIA LAW, SUCH AS THE CONDUCT OF A PRIMARY, HOLDING PARTY
CONVENTIONS, AND THE PROMULGATION OF PARTY PLATFORMS.  BUT MORE
FUNDAMENTALLY, THE CANDIDATE, WHO IS BY DEFINITION AN INDEPENDENT AND
DESIRES TO REMAIN ONE, MUST NOW CONSIDER HIMSELF A PARTY MAN,
SURRENDERING HIS INDEPENDENT STATUS.  MUST HE NECESSARILY CHOOSE THE
POLITICAL PARTY ROUTE IF HE WANTS TO APPEAR ON THE BALLOT IN THE
GENERAL ELECTION?  WE THINK NOT. 

IN WILLIAMS V. RHODES, THE OPPORTUNITY FOR POLITICAL ACTIVITY WITHIN
EITHER OF TWO MAJOR POLITICAL PARTIES WAS SEEMINGLY AVAILABLE TO ALL. 
BUT THIS COURT HELD THAT TO COMPLY WITH THE FIRST AND FOURTEENTH
AMENDMENTS THE STATE MUST PROVIDE A FEASIBLE OPPORTUNITY FOR NEW
POLITICAL ORGANIZATIONS AND THEIR CANDIDATES TO APPEAR ON THE BALLOT. 
NO DISCERNABLE STATE INTEREST JUSTIFIED THE BURDENSOME AND COMPLICATED
REGULATIONS THAT IN EFFECT MADE IMPRACTICAL ANY ALTERNATIVE TO THE
MAJOR PARTIES.  SIMILARLY, HERE, WE PERCEIVE NO SUFFICIENT STATE
INTEREST IN CONDITIONING BALLOT POSITION FOR AN INDEPENDENT CANDIDATE
ON HIS FORMING A NEW POLITICAL PARTY AS LONG AS THE STATE IS FREE TO
ASSURE ITSELF THAT THE CANDIDATE IS A SERIOUS CONTENDER, TRULY
INDEPENDENT, AND WITH A SATISFACTORY LEVEL OF COMMUNITY SUPPORT.  /16/ 

ACCORDINGLY, WE VACATE THE JUDGMENT IN NO. 72 - 812 INSOFAR AS IT
REFUSED RELIEF TO HALL AND TYNER AND REMAND THE CASE IN THIS RESPECT TO
THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  IN ALL OTHER RESPECTS, THE JUDGMENT IN NO. 72 - 812 AND NO.
72 - 6050 IS AFFIRMED. 

   SO ORDERED. 

/1/  THE RELEVANT PROVISIONS OF THE CALIFORNIA ELECTIONS CODE ARE
PRINTED IN THE APPENDIX TO THIS OPINION. 

/2/  STORER'S ACTION, NO. 72 - 812, WAS FILED FIRST.  FROMMHAGEN WAS
ALLOWED TO INTERVENE.  HALL AND TYNER LATER FILED SUIT.  IN ITS OPINION
THE DISTRICT COURT NOTE THAT "(BY APPROPRIATE ORDERS AND STIPULATIONS,
ALTHOUGH THE CASES WERE NEVER CONSOLIDATED, THE PARTIES TO HALL WILL BE
BOUND BY THE RULINGS MADE IN STORER WHICH ARE COMMON TO BOTH CASES AND
ANY SEPARATE ISSUES IN HALL STAND SUBMITTED WITHOUT FURTHER BRIEFING OR
ORAL ARGUMENT.  THE VIEW TAKEN BY THE COURT HEREIN IS SUCH THAT THERE
ARE NO SEPARATE ISSUES IN HALL AND THE RULINGS EXPRESSED ARE
DISPOSITIVE OF BOTH CASES." 

/3/  STORER SOUGHT TO BE A CANDIDATE FROM THE SIXTH CONGRESSIONAL
DISTRICT, FROMMHAGEN FROM THE TWELFTH. 

/4/  THE CALIFORNIA ELECTIONS CODE 41 PROVIDES THAT JUDICIAL,
SCHOOL, COUNTY, AND MUNICIPAL OFFICES ARE NONPARTISAN OFFICES FOR WHICH
NO PARTY MAY NOMINATE A CANDIDATE. 

/5/  SEE GAYLORD, HISTORY OF THE CALIFORNIA LAWS 59, CONTAINED IN
WEST'S ANN. ELEC.  CODE (1961), PRECEDING 1 - 11499. 

/6/  SEE IN RE MCGEE, 36 CAL. 2D 592, 226 P. 2D 1 (1951). 

/7/  MOREOVER, WE NOTE THAT THE INDEPENDENT CANDIDATE WHO CANNOT
QUALIFY FOR THE BALLOT MAY NEVERTHELESS RESORT TO THE WRITE-IN
ALTERNATIVE PROVIDED BY CALIFORNIA LAW, SEE 18600 - 18603 (SUPP.
1974). 

/8/  THE 1972 ELECTION IS LONG OVER, AND NO EFFECTIVE RELIEF CAN BE
PROVIDED TO THE CANDIDATES OR VOTERS, BUT THIS CASE IS NOT MOOT, SINCE
THE ISSUES PROPERLY PRESENTED, AND THEIR EFFECTS ON INDEPENDENT
CANDIDACIES, WILL PERSIST AS THE CALIFORNIA STATUTES ARE APPLIED IN
FUTURE ELECTIONS.  THIS IS, THEREFORE, A CASE WHERE THE CONTROVERSY IS
"CAPABLE OF REPETITION, YET EVADING REVIEW."  ROSARIO V. ROCKEFELLER,
410 U.S. 752, 756 N. 5 (1973); DUNN V. BLUMSTEIN, 405 U.S. 330, 333 N.
2 (1972); MOORE V. OGILVIE, 394 U.S. 814, 816 (1969); SOUTHERN PACIFIC
TERMINAL CO. V. ICC, 219 U.S. 498, 515 (1911).  THE "CAPABLE OF
REPETITION, YET EVADING REVIEW" DOCTRINE, IN THE CONTEXT OF ELECTION
CASES, IS APPROPRIATE WHEN THERE ARE "AS APPLIED"  CHALLENGES AS WELL
AS IN THE MORE TYPICAL CASE INVOLVING ONLY FACIAL ATTACKS.  THE
CONSTRUCTION OF THE STATUTE, AN UNDERSTANDING OF ITS OPERATION, AND
POSSIBLE CONSTITUTIONAL LIMITS ON ITS APPLICATION, WILL HAVE THE EFFECT
OF SIMPLIFYING FUTURE CHALLENGES, THUS INCREASING THE LIKELIHOOD THAT
TIMELY FILED CASES CAN BE ADJUDICATED BEFORE AN ELECTION IS HELD. 

/9/  IN CALIFORNIA, PRESIDENTIAL ELECTORS MUST MEET CANDIDACY
REQUIREMENTS AND FILE THEIR NOMINATION PAPERS WITH THE REQUIRED
SIGNATURES.  6803, 6830.  THE STATE CLAIMS, THEREFORE, THAT THE
ELECTORS NOT HALL AND TYNER, ARE THE ONLY PERSONS WITH STANDING TO
RAISE THE VALIDITY OF THE SIGNATURE REQUIREMENTS.  BUT IT IS HALL'S AND
TYNER'S NAMES THAT GO ON THE CALIFORNIA BALLOT FOR CONSIDERATION OF THE
VOTERS.  6804.  WITHOUT THE NECESSARY SIGNATURES THIS WILL NOT OCCUR. 
IT IS APPARENT, CONTRARY TO THE STATE'S SUGGESTION, THAT HALL AND TYNER
HAVE AMPLE STANDING TO CHALLENGE THE SIGNATURE REQUIREMENT. 

HEREINAFTER, IN THE TEXT AND NOTES, REFERENCE TO HALL SHOULD BE
UNDERSTOOD AS REFERRING ALSO TO TYNER. 

/10/  SEE ALSO AUERBACH V. MANDEL, 409 U.S. 808 (1972) (3%); WOOD V.
PUTTERMAN, 316 F. SUPP. 646 (THREE-JUDGE COURT), AFF'D MEM., 400 U.S.
859 (1970) (3%); AND BELLER V. KIRK, 328 F. SUPP. 485 (SD FLA. 1970)
(THREE-JUDGE COURT), AFF'D MEM. SUB NOM.  BELLER V. ASKEW, 403 U.S. 925
(1971) (3%).  WE NOTE THAT IN SOCIALIST LABOR PARTY V. RHODES, 318 F.
SUPP. 1262 (1970) (THREE-JUDGE COURT), THE DISTRICT COURT STRUCK DOWN A
7% PETITION REQUIREMENT.  THAT ISSUE BECAME MOOT ON APPEAL, SOCIALIST
LABOR PARTY V. GILLIGAN, 406 U.S. 583, 585 (1972). 

/11/  TWO BALLOTS ARE AUTHORIZED IN CALIFORNIA PRIMARIES, THE ONE
FOR PARTISAN OFFICE AND THE OTHER FOR NONPARTISAN OFFICES AND
PROPOSITIONS.  SEE 10014, 10232, 10318.  A VOTER MAY TAKE ONLY THE
NONPARTISAN BALLOT AND REFRAIN FROM VOTING ON PARTISAN CANDIDATES. 

/12/  FROM THE OFFICIAL PUBLISHED VOTING STATISTICS PUBLISHED BY THE
CALIFORNIA SECRETARY OF STATE, IT WOULD APPEAR THAT THE TOTAL VOTE IN
THE 1972 PRIMARIES, SEEMINGLY THE TOTAL NUMBER OF PERSONS VOTING, WAS
6,460,220, WHILE THE TOTAL VOTE FOR PARTISAN PRESIDENTIAL CANDIDATES
WAS 5,880,845.  THUS ALL BUT APPROXIAMATELY 579,000 VOTED FOR A
PARTISAN CANDIDATE IN THE PRESIDENTIAL PRIMARY AND IT IS LIKELY THAT
MANY OF THE 579,000 NOT VOTING FOR PRESIDENT CAST A PARTISAN BALLOT FOR
OTHER CANDIDATES.  BUT ASSUMING THAT THEY DID NOT, THE MAXIMUM ADDITION
TO THE POOL AVAILABLE TO HALL WOULD BE 579,000, PROBABLY A RELATIVELY
SMALL DIFFERENCE IN TERMS OF THE TOTAL NUMBER OF ELIGIBLE SIGNERS.  SEE
SECRETARY OF STATE, STATEMENT OF VOTE, STATE OF CALIFORNIA,
CONSOLIDATED PRIMARY ELECTION, JUNE 6, 1972, PP. 3, 4 - 23. 

/13/  APPELLEES ARGUE ONLY THAT THE INDEPENDENT CANDIDATE'S
CANVASSING FOR SIGNATURES SHOULD AWAIT THE ANNOUNCEMENT OF THE PRIMARY
WINNERS AND THE PROMULGATION OF PARTY PLATFORMS SO THAT THE VOTERS
ELIGIBLE TO SIGN, I. E., THOSE NOT VOTING IN THE PRIMARY WILL HAVE A
MEANINGFUL CHOICE BETWEEN THE PRIMARY NOMINATIONS AND THE
INDEPENDENTS.  THIS DOES NOT APPEAR TO BE A MATTER PARTICULARLY
RELEVANT TO SIGNING PETITIONS FOR BALLOT POSITION, FOR THE MEANINGFUL
CHOICE REFERRED TO BY APPELLEES WILL BE FINALLY PRESENTED AT THE
GENERAL ELECTION. 

/14/  IT MAY HELP TO PUT THIS CASE IN PROPER CONTEXT TO HYPOTHESIZE
THE SCOPE OF HALL'S PETITION AND SIGNATURE BURDEN UNDER THE CALIFORNIA
LAW BY EMPLOYING THE ELECTION STATISTICS AVAILABLE FROM OFFICIAL
SOURCES IN CALIFORNIA.  ASSUMING THAT THE "ENTIRE VOTE" IN THE LAST
GENERAL ELECTION WAS THE TOTAL NUMBER OF PERSONS VOTING IN THE 1970
ELECTION, 6,633,400, 5% OF THAT FIGURE, OR THE TOTAL NUMBER OF
SIGNATURES REQUIRED, IS 331,670.  SEE SECRETARY OF STATE, STATEMENT OF
VOTE, GENERAL ELECTION, NOVEMBER 7, 1972, P. 6.  THE TOTAL REGISTRATION
FOR THE 1972 PRIMARY WAS 9,105,287.  SEE 1972 PRIMARY VOTE, P.3. 
ADDING TO THIS FIGURE AN ESTIMATE OF THE INCREASE IN REGISTRATION SINCE
THE PRIMARY DATE AND SUBTRACTING THE MINIMUM PARTISAN VOTE AT THE
PRIMARY ELECTION, THE AVAILABLE POOL OF POSSIBLE SIGNERS, BY THIS
CALCULATION, WOULD BE 4,072,279, SEE SECRETARY OF STATE, REPORT OF
REGISTRATION, SEPTEMBER 1972, P. 8, OF WHICH THE REQUIRED 331,670
SIGNATURES WAS 8.1%. 

/15/  THE 1% REGISTRATION REQUIREMENT CONTEMPLATES INDEPENDENT
VOTERS REGISTERING AS AFFILIATED WITH THE PARTY.  THE 10%-SIGNATURE
REQUIREMENT, ON THE OTHER HAND, NEED NOT INVOLVE SIGNERS CHANGING THEIR
REGISTRATION. 

/16/  APPELLANTS ALSO CONTEND THAT 6830(D) (SUPP. 1974) PURPORTS TO
ESTABLISH AN ADDITIONAL QUALIFICATION FOR OFFICE OR REPRESENTATIVES AND
IS INVALID UNDER ART. I, 2, CL. 2, OF THE CONSTITUTION.  THE ARGUMENT
IS WHOLLY WITHOUT MERIT.  STORER AND FROMMHAGEN WOULD NOT HAVE BEEN
DISQUALIFIED HAD THEY BEEN NOMINATED AT A PARTY PRIMARY OR BY AN
ADEQUATELY SUPPORTED INDEPENDENT PETITION AND THEN ELECTED AT THE
GENERAL ELECTION.  THE NON-AFFILIATION REQUIREMENT NO MORE ESTABLISHES
AN ADDITIONAL REQUIREMENT FOR OFFICE OF REPRESENTATIVE THAN THE
REQUIREMENT THAT THE CANDIDATE WIN THE PRIMARY TO SECURE A PLACE ON THE
GENERAL BALLOT OR OTHERWISE DEMONSTRATE SUBSTANTIAL COMMUNITY SUPPORT. 

        APPENDIX TO OPINION OF THE COURT

        CALIFORNIA ELECTIONS CODE 

41.  "NONPARTISAN OFFICE" 

"NONPARTISAN OFFICE" MEANS AN OFFICE FOR WHICH NO PARTY MAY NOMINATE
A CANDIDATE.  JUDICIAL, SCHOOL, COUNTY, AND MUNICIPAL OFFICES ARE
NONPARTISAN OFFICES. 

311 (SUPP. 1974).  DECLARATION OF POLITICAL AFFILIATION; VOTING AT
PRIMARY ELECTIONS 

AT THE TIME OF REGISTERING AND OF TRANSFERRING REGISTRATION, EACH
ELECTOR MAY DECLARE THE NAME OF THE POLITICAL PARTY WITH WHICH HE
INTENDS TO AFFILIATE AT THE ENSUING PRIMARY ELECTION.  THE NAME OF THAT
POLITICAL PARTY SHALL BE STATED IN THE AFFIDAVIT OF REGISTRATION AND
THE INDEX.     IF THE ELECTOR DECLINES TO STATE HIS POLITICAL
AFFILIATION, HE SHALL BE REGISTERED AS "NONPARTISAN" OR "DECLINES TO
STATE," AS HE CHOOSES.  IF THE ELECTOR DECLINES TO STATE HIS POLITICAL
AFFILIATION, HE SHALL BE INFORMED THAT NO PERSON SHALL BE ENTITLED TO
VOTE THE BALLOT OF ANY POLITICAL PARTY AT ANY PRIMARY ELECTION UNLESS
HE HAS STATED THE NAME OF THE PARTY WITH WHICH HE INTENDS TO AFFILIATE
AT THE TIME OF REGISTRATION.  HE SHALL NOT BE PERMITTED TO VOTE THE
BALLOT OF ANY PARTY OR FOR DELEGATES TO THE CONVENTION OF ANY PARTY
OTHER THAN THE PARTY DESIGNATED IN HIS REGISTRATION. 

2500.  GENERAL ELECTION     THERE SHALL BE HELD THROUGHOUT THE
STATE, ON THE FIRST TUESDAY AFTER THE FIRST MONDAY OF NOVEMBER IN EVERY
EVEN-NUMBERED YEAR, AN ELECTION, TO BE KNOWN AS THE GENERAL ELECTION. 

2501.  DIRECT PRIMARY 

FOR THE NOMINATION OF ALL CANDIDATES TO BE VOTED FOR AT THE GENERAL
ELECTION, A DIRECT PRIMARY SHALL BE HELD AT THE LEGALLY DESIGNATED
POLLING PLACES IN EACH PRECINCT ON THE FIRST TUESDAY AFTER THE FIRST
MONDAY IN THE IMMEDIATELY PRECEDING JUNE. 

2502.  PRIMARY ELECTIONS 

ANY PRIMARY ELECTION OTHER THAN THE DIRECT PRIMARY OR PRESIDENTIAL
PRIMARY SHALL BE HELD ON TUESDAY, THREE WEEKS NEXT PRECEDING THE
ELECTION FOR WHICH THE PRIMARY ELECTION IS HELD. 

6401 (SUPP. 1974).  PARTY AFFILIATION 

NO DECLARATION OF CANDIDACY FOR A PARTISAN OFFICE OR FOR MEMBERSHIP
ON A COUNTY CENTRAL COMMITTEE SHALL BE FILED, EITHER BY THE CANDIDATE
HIMSELF OR BY SPONSORS ON HIS BEFHALF, (1) UNLESS AT THE TIME OF
PRESENTATION OF THE DECLARATION AND CONTINUOUSLY FOR NOT LESS THAN
THREE MONTHS IMMEDIATELY PRIOR TO THAT TIME, OR FOR AS LONG AS HE HAS
BEEN ELIGIBLE TO REGISTER TO VOTE IN THE STATE, THE CANDIDATE IS SHOWN
BY HIS AFFIDAVIT OF REGISTRATION TO BE AFFILIATED WITH THE POLITICAL
PARTY THE NOMINATION OF WHICH HE SEEKS, AND (2) THE CANDIDATE HAS NOT
BEEN REGISTERED AS AFFILIATED WITH A POLITICAL PARTY OTHER THAN THAT
POLITICAL PARTY THE NOMINATION OF WHICH HE SEEKS WITHIN 12 MONTHS
IMMEDIATELY PRIOR TO THE FILING OF THE DECLARATION. 

THE COUNTY CLERK SHALL ATTACH A CERTIFICATE TO THE DECLARATION OF
CANDIDACY SHOWING THE DATE ON WHICH THE CANDIDATE REGISTERED AS
INTENDING TO AFFILIATE WITH THE POLITICAL PARTY THE NOMINATION OF WHICH
HE SEEKS, AND INDICATING THAT THE CANDIDATE HAS NOT BEEN AFFILIATED
WITH ANY OTHER POLITICAL PARTY FOR THE 12-MONTH PERIOD IMMEDIATELY
PRECEDING THE FILING OF THE DECLARATION. 

6402.  INDEPENDENT NOMINEES 

THIS CHAPTER DOES NOT PROHIBIT THE INDEPENDENT NOMINATION OF
CANDIDATES UNDER THE PROVISIONS OF CHAPTER 3 (COMMENCING AT SECTION
6800) OF THIS DIVISION, SUBJECT TO THE FOLLOWING LIMITATIONS: 

(A) A CANDIDATE WHOSE NAME HAS BEEN ON THE BALLOT AS A CANDIDATE OF
A PARTY NOMINATION IS INELIGIBLE FOR NOMINATION AS AN INDEPENDENT
CANDIDATE.  HE IS ALSO INELIGIBLE AS A CANDIDATE NAMED BY A PARTY
CENTRAL COMMITTEE TO FILL A VACANCY ON THE BALLOT FOR A GENERAL
ELECTION. 

(B) NO PERSON MAY FILE NOMINATION PAPERS FOR A PARTY NOMINATION AND
AN INDEPENDENT NOMINATION FOR THE SAME OFFICE, OR FOR MORE THAN ONE
OFFICE AT THE SAME ELECTION. 

6430.  QUALIFIED PARTIES 

A PARTY IS QUALIFIED TO PARTICIPATE IN ANY PRIMARY ELECTION: 

(A) IF AT THE LAST PRECEDING GUBERNATORIAL ELECTION THERE WAS POLLED
FOR ANY ONE OF ITS CANDIDATES WHO WAS THE CANDIDATE OF THAT PARTY ONLY
FOR ANY OFFICE VOTED ON THROUGHOUT THE STATE, AT LEAST 2 PERCENT OF THE
ENTIRE VOTE OF THE STATE; OR 

(B) IF AT THE LAST PRECEDING GUBERNATORIAL ELECTION THERE WAS POLLED
FOR ANY ONE OF ITS CANDIDATES WHO, UPON THE DATE OF THAT ELECTION, AS
SHOWN BY THE AFFIDAVITS OF REGISTRATION OF VOTERS IN THE COUNTY OF HIS
RESIDENCE, WAS AFFILIATED WITH THAT PARTY AND WAS THE JOINT CANDIDATE
OF THAT PARTY AND ANY OTHER PARTY FOR ANY OFFICE VOTED ON THROUGHOUT
THE STATE, AT LEAST 6 PERCENT OF THE ENTIRE VOTE OF THE STATE; OR 

(C) IF ON OR BEFORE THE 135TH DAY BEFORE ANY PRIMARY ELECTION, IT
APPEARS TO THE SECRETARY OF STATE, AS A RESULT OF EXAMINING AND
TOTALING THE STATEMENT OF VOTERS AND THEIR POLITICAL AFFILIATIONS
TRANSMITTED TO HIM BY THE COUNTY CLERKS, THAT VOTERS EQUAL IN NUMBER TO
AT LEAST 1 PERCENT OF THE ENTIRE VOTE OF THE STATE AT THE LAST
PRECEDING GUBERNATORIAL ELECTION HAVE DECLARED THEIR INTENTION TO
AFFILIATE WITH THAT PARTY; OR HC#749 

(D) IF ON OR BEFORE THE 135TH DAY BEFORE ANY PRIMARY ELECTION, THERE
IS FILED WITH THE SECRETARY OF STATE A PETITION SIGNED BY VOTERS, EQUAL
IN NUMBER TO AT LEAST 10 PERCENT OF THE ENTIRE VOTE OF THE STATE AT THE
LAST PRECEDING GUBERNATORIAL ELECTION, DECLARING THAT THEY REPRESENT A
PROPOSED PARTY, THE NAME OF WHICH SHALL BE STATED IN THE PETITION,
WHICH PROPOSED PARTY THOSE VOTERS DESIRE TO HAVE PARTICIPATE IN THAT
PRIMARY ELECTION.  THIS PETITION SHALL BE CIRCULATED, SIGNED, VERIFIED
AND THE SIGNATURES OF THE VOTERS ON IT SHALL BE CERTIFIED TO AND
TRANSMITTED TO THE SECRETARY OF STATE BY THE COUNTY CLERKS
SUBSTANTIALLY AS PROVIDED FOR INITIATIVE PETITIONS.  EACH PAGE OF THE
PETITION SHALL BEAR A CAPTION IN 18-POINT BLACKFACE TYPE, WHICH CAPTION
SHALL BE THE NAME OF THE PROPOSED PARTY FOLLOWED BY THE WORDS "PETITION
TO PARTICIPATE IN THE PRIMARY ELECTION."  NO VOTERS OR ORGANIZATION OF
VOTERS SHALL ASSUME A PARTY NAME OR DESIGNATION WHICH IS SO SIMILAR TO
THE NAME OF AN EXISTING PARTY AS TO MISLEAD VOTERS. 

WHENEVER THE REGISTATION OF ANY PARTY WHICH QUALIFIED IN THE
PREVIOUS DIRECT PRIMARY ELECTION FALLS BELOW ONE-FIFTEENTH OF 1 PERCENT
OF THE TOTAL STATE REGISTRATION, THAT PARTY SHALL NOT BE QUALIFIED TO
PARTICIPATE IN THE PRIMARY ELECTION BUT SHALL BE DEEMED TO HAVE BEEN
ABANDONED BY THE VOTERS, SINCE THE EXPENSE OF PRINTING BALLOTS AND
HOLDING A PRIMARY ELECTION WOULD BE AN UNJUSTIFIABLE EXPENSE AND BURDEN
TO THE STATE FOR SO SMALL A GROUP.  THE SECRETARY OF STATE SHALL
IMMEDIATELY REMOVE THE NAME OF THE PARTY FROM ANY LIST, NOTICE, BALLOT,
OR OTHER PUBLICATION CONTAINING THE NAMES OF THE PARTIES QUALIFIED TO
PARTICIPATE IN THE PRIMARY ELECTION. 

6490 (SUPP. 1974).  DECLARATION OF CANDIDACY 

NO CANDIDATE'S NAME SHALL BE PRINTED ON THE BALLOT TO BE USED AT A
DIRECT PRIMARY UNLESS A DECLARATION OF HIS CANDIDACY IS FILED NOT LESS
THAN 83 AND NOT MORE THAN 113 DAYS PRIOR TO THE DIRECT PRIMARY. 

THE DECLARATION MAY BE MADE BY THE CANDIDATE OR BY SPONSORS ON HIS
BEHALF. 

WHEN THE DECLARATION IS MADE BY SPONSORS THE CANDIDATE'S AFFIDAVIT
OF ACCEPTANCE SHALL BE FILED WITH THE DECLARATION. 

6611.  UNSUCCESSFUL CANDIDATE; INELIGIBILITY AS CANDIDATE OF ANOTHER
PARTY 

A CANDIDATE WHO FAILS TO RECEIVE THE HIGHEST NUMBER OF VOTES FOR THE
NOMINATION OF THE POLITICAL PARTY WITH WHICH HE WAS REGISTERED AS
AFFILIATED ON THE DATE HIS DECLARATION OF CANDIDACY OR DECLARATION OF
ACCEPTANCE OF NOMINATION WAS FILED WITH THE COUNTY CLERK CANNOT BE THE
CANDIDATE OF ANY OTHER POLITICAL PARTY. 

6803.  GROUP OF CANDIDATES FOR PRESIDENTIAL ELECTORS; DESIGNATION OF
PRESIDENTIAL AND VICE PRESIDENTIAL CANDIDATES 

WHENEVER A GROUP OF CANDIDATES FOR PRESIDENTIAL ELECTORS, EQUAL IN
NUMBER TO THE NUMBER OF PRESIDENTIAL ELECTORS TO WHICH THIS STATE IS
ENTITLED, FILES A NOMINATION PAPER WITH THE SECRETARY OF STATE PURSUANT
TO THIS CHAPTER, THE NOMINATION PAPER MAY CONTAIN THE NAME OF THE
CANDIDATE FOR PRESIDENT OF THE UNITED STATES AND THE NAME OF THE
CANDIDATE FOR VICE PRESIDENT OF THE UNITED STATES FOR WHOM ALL OF THOSE
CANDIDATES FOR PRESIDENTIAL ELECTORS PLEDGE THEMSELVES TO VOTE. 

6804.  PRINTING OF NAMES ON BALLOT 

WHEN A GROUP OF CANDIDATES FOR PRESIDENTIAL ELECTORS DESIGNATES THE
PRESIDENTIAL AND VICE PRESIDENTIAL CANDIDATES FOR WHOM ALL OF THE GROUP
PLEDGE THEMSELVES TO VOTE, THE NAMES OF THE PRESIDENTIAL CANDIDATE AND
VICE PRESIDENTIAL CANDIDATE DESIGNATED BY THAT GROUP SHALL BE PRINTED
ON THE BALLOT. 

6830 (SUPP. 1974). 

CONTENTS 

EACH CANDIDATE OR GROUP OF CANDIDATES SHALL FILE A NOMINATION PAPER
WHICH SHALL CONTAIN: 

(A) THE NAME AND RESIDENCE ADDRESS OF EACH CANDIDATE, INCLUDING THE
NAME OF THE COUNTY IN WHICH HE RESIDES. 

(B) A DESIGNATION OF THE OFFICE FOR WHICH THE CANDIDATE OR GROUP
SEEKS NOMINATION. 

(C) A STATEMENT THAT THE CANDIDATE AND EACH SIGNER OF HIS NOMINATION
PAPER DID NOT VOTE AT THE IMMEDIATELY PRECEDING PRIMARY ELECTION AT
WHICH A CANDIDATE WAS NOMINATED FOR THE OFFICE MENTIONED IN THE
NOMINATION PAPER.  THE STATEMENT REQUIRED IN THIS SUBDIVISION SHALL BE
OMITTED WHEN NO CANDIDATE WAS NOMINATED FOR THE OFFICE AT THE PRECEDING
PRIMARY ELECTION. 

(D) A STATEMENT THAT THE CANDIDATE IS NOT, AND WAS NOT AT ANY TIME
DURING THE ONE YEAR PRECEDING THE IMMEDIATELY PRECEDING PRIMARY
ELECTION AT WHICH A CANDIDATE WAS NOMINATED FOR THE OFFICE MENTIONED IN
THE NOMINATION PAPER, REGISTERED AS AFFILIATED WITH A POLITICAL PARTY
QUALIFIED UNDER THE PROVISIONS OF SECTION 6430.  THE STATEMENT REQUIRED
BY THIS SUBDIVISION SHALL BE OMITTED WHEN NO PRIMARY ELECTION WAS HELD
TO NOMINATE CANDIDATES FOR THE OFFICE TO WHICH THE INDEPENDENT
NOMINATION PAPER IS DIRECTED. 

6831.  SIGNATURES REQUIRED 

NOMINATION PAPERS SHALL BE SIGNED BY VOTERS OF THE AREA FOR WHICH
THE CANDIDATE IS TO BE NOMINATED, NOT LESS IN NUMBER THAN 5 PERCENT NOR
MORE THAN 6 PERCENT OF THE ENTIRE VOTE CAST IN THE AREA AT THE
PRECEDING GENERAL ELECTION.  NOMINATION PAPERS FOR REPRESENTATIVE IN
CONGRESS, STATE SENATOR OR ASSEMBLYMAN, TO BE VOTED FOR AT A SPECIAL
ELECTION TO FILL A VACANCY, SHALL BE SIGNED BY VOTERS IN THE DISTRICT
NOT LESS IN NUMBER THAN 500 OR 1 PERCENT OF THE ENTIRE VOTE CAST IN THE
AREA AT THE PRECEDING GENERAL ELECTION, WHICHEVER IS LESS, NOR MORE
THAN 1,000. 

6833 (SUPP. 1974).  TIME FOR FILING, CIRCULATION AND SIGNING;
VERIFICATION 

NOMINATION PAPERS REQUIRED TO BE FILED WITH THE SECRETARY OF STATE
OR WITH THE COUNTY CLERK SHALL BE FILED NOT MORE THAN 79 NOR LESS THAN
54 DAYS BEFORE THE DAY OF THE ELECTION, BUT SHALL BE PREPARED,
CIRCULATED, SIGNED, VERIFIED AND LEFT WITH THE COUNTY CLERK FOR
EXAMINATION, OR FOR EXAMINATION AND FILING, NO EARLIER THAN 84 DAYS
BEFORE THE ELECTION AND NO LATER THAN 5 P.M. 60 DAYS BEFORE THE
ELECTION.  IF THE TOTAL NUMBER OF SIGNATURES SUBMITTED TO A COUNTY
CLERK FOR AN OFFICE ENTIRELY WITHIN THAT COUNTY DOES NOT EQUAL THE
NUMBER OF SIGNATURES NEEDED TO QUALIFY THE CANDIDATE, THE COUNTY CLERK
SHALL DECLARE THE PETITION VOID AND IS NOT REQUIRED TO VERIFY THE
SIGNATURES.  IF THE DISTRICT FALLS WITHIN TWO OR MORE COUNTIES, THE
COUNTY CLERK SHALL WITHIN TWO WORKING DAYS REPORT IN WRITING TO THE
SECRETARY OF STATE THE TOTAL NUMBER OF SIGNATURES FILED.  IF THE
SECRETARY OF STATE FINDS THAT THE TOTAL NUMBER OF SIGNATURES FILED IN
THE DISTRICT OR STATE IS LESS THAN THE MINIMUM NUMBER REQUIRED TO
QUALIFY THE CANDIDATE HE SHALL WITHIN ONE WORKING DAY NOTIFY IN WRITING
THE COUNTIES INVOLVED THAT THEY NEED NOT VERIFY THE SIGNATURES. 

10014.  BALLOTS FOR VOTERS AT PRIMARY ELECTIONS 

AT A PRIMARY ELECTION ONLY A NONPARTISAN BALLOT SHALL BE FURNISHED
TO EACH VOTER WHO IS NOT REGISTERED AS INTENDING TO AFFILIATE WITH ANY
ONE OF THE POLITICAL PARTIES PARTICIPATING IN THE PRIMARY ELECTION; AND
TO ANY VOTER REGISTERED AS INTENDING TO AFFILIATE WITH A POLITICAL
PARTY PARTICIPATING IN A PRIMARY ELECTION, THERE SHALL BE FURNISHED
ONLY A BALLOT OF THE POLITICAL PARTY WITH WHICH HE IS REGISTERED AS
INTENDING TO AFFILIATE. 

IF THE ELECTION BOARD OF A COUNTY DETERMINES THAT DUE TO THE NUMBER
OF CANDIDATES AND MEASURES THAT MUST BE PRINTED ON THE GENERAL ELECTION
BALLOT, THE BALLOT WILL BE LARGER THAN MAY BE CONVENIENTLY HANDLED, THE
BOARD MAY ORDER NONPARTISAN OFFICES AND LOCAL MEASURES OMITTED FROM THE
GENERAL ELECTION BALLOT AND PRINTED ON A SEPARATE BALLOT IN A FORM
SUBSTANTIALLY THE SAME AS PROVIDED FOR THE GENERAL ELECTION BALLOT.  IF
THE BOARD SO ORDERS, EACH VOTER SHALL RECEIVE BOTH BALLOTS, AND THE
PROCEDURE PRESCRIBED FOR THE HANDLING AND CANVASSING OF BALLOTS SHALL
BE MODIFIED TO THE EXTENT NECESSARY TO PERMIT THE USE OF TWO BALLOTS BY
A VOTER.  THE BOARD MAY, IN SUCH CASE, ORDER THE SECOND BALLOT TO BE
PRINTED ON PAPER OF A DIFFERENT TINT AND ASSIGN TO THOSE BALLOTS
NUMBERS HIGHER THAN THOSE ASSIGNED TO THE BALLOTS CONTAINING PARTISAN
OFFICES AND STATEWIDE BALLOT MEASURES. 

10318.  INCONVENIENTLY LARGE BALLOTS IF THE ELECTION BOARD OF A
COUNTY DETERMINES THAT DUE TO THE NUMBER OF CANDIDATES AND MEASURES
THAT MUST BE PRINTED ON THE DIRECT PRIMARY BALLOT THE BALLOT WILL BE
LARGER THAN MAY BE CONVENIENTLY HANDLED, THE BOARD MAY PROVIDE THAT A
NONPARTISAN BALLOT SHALL BE GIVEN TO EACH PARTISAN VOTER, TOGETHER WITH
HIS PARTISAN BALLOT, AND THAT THE MATERIAL APPEARING UNDER THE HEADING
"NONPARTISAN OFFICES" ON PARTISAN BALLOTS, AS WELL AS THE HEADING
ITSELF, SHALL BE OMITTED FROM THE PARTISAN BALLOTS.  IF THE BOARD SO
PROVIDES, THE PROCEDURE PRESCRIBED FOR THE HANDLING AND CANVASSING OF
BALLOTS SHALL BE MODIFIED TO THE EXTENT NECESSARY TO PERMIT THE USE OF
TWO BALLOTS BY PARTISAN VOTERS. 

18600 (SUPP. 1974).  WRITE-IN VOTES 

ANY NAME WRITTEN UPON A BALLOT SHALL BE COUNTED, UNLESS PROHIBITED
BY SECTION 18603, FOR THAT NAME FOR THE OFFICE UNDER WHICH IT IS
WRITTEN, IF IT IS WRITTEN IN THE BLANK SPACE THEREFOR, WHETHER OR NOT A
CROSS ( ) IS STAMPED OR MADE WITH PEN OR PENCIL IN THE VOTING SQUARE
AFTER THE NAME SO WRITTEN. 

18601 (SUPP. 1974).  DECLARATION REQUIRED 

EVERY PERSON WHO DESIRES TO HAVE HIS NAME AS WRITTEN ON THE BALLOTS
OF AN ELECTION COUNTED FOR A PARTICULAR OFFICE SHALL FILE A DECLARATION
STATING THAT HE IS A WRITE-IN CANDIDATE FOR THE NOMINATION FOR OR
ELECTION TO THE PARTICULAR OFFICE AND GIVING THE TITLE OF THAT OFFICE. 

18602 (SUPP. 1974).  DECLARATION; FILING     THE DECLARATION
REQUIRED BY SECTION 18601 SHALL BE FILED NO LATER THAN THE EIGHTH DAY
PRIOR TO THE ELECTION TO WHICH IT APPLIES.  IT SHALL BE FILED WITH THE
CLERKS, REGISTRAR OF VOTERS, OR DISTRICT SECRETARY RESPONSIBLE FOR THE
CONDUCT OF THE ELECTION IN WHICH THE CANDIDATE DESIRES TO HAVE WRITE-IN
VOTES OF HIS NAME COUNTED. 

18603 (SUPP. 1974).  REQUIREMENTS FOR TABULATION OF WRITE-IN VOTE 

NO NAME WRITTEN UPON A BALLOT IN ANY STATE, COUNTY, CITY, CITY AND
COUNTY, OR DISTRICT ELECTION SHALL BE COUNTED FOR AN OFFICE OR
NOMINATION UNLESS 

(A) A DECLARATION HAS BEEN FILED PURSUANT TO SECTIONS 18601 AND
18602 DECLARING A WRITE-IN CANDIDACY FOR THAT PARTICULAR PERSON FOR
THAT PARTICULAR OFFICE OR NOMINATION AND 

(B) THE FEE REQUIRED BY SECTION 6555 IS PAID WHEN THE DECLARATION OF
WRITE-IN CANDIDACY IS FILED PURSUANT TO SECTION 18602. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

THE COURT'S OPINION IN THESE CASES, AND THAT IN AMERICAN PARTY OF
TEXAS V. WHITE, POST, P. 767, HOLD -- CORRECTLY IN MY VIEW -- THAT THE
TEST OF THE VALIDITY OF STATE LEGISLATION REGULATING CANDIDATE ACCESS
TO THE BALLOT IS WHETHER WE CAN CONCLUDE THAT THE LEGISLATION, STRICTLY
SCRUTINIZED, IS NECESSARY TO FURTHER COMPELLING STATE INTERESTS.  SEE
ANTE, AT 736; AMERICAN PARTY OF TEXAS V. WHITE, POST, AT 780 - 781;
FOR, AS WE RECOGNIZED IN WILLIAMS V. RHODES, 393 U.S. 23, 30 (1968),
SUCH STATE LAWS "PLACE BURDENS ON TWO DIFFERENT, ALTHOUGH OVERLAPPING,
KINDS OF RIGHTS -- THE RIGHT OF INDIVIDUALS TO ASSOCIATE FOR THE
ADVANCEMENT OF POLITICAL BELIEFS, AND THE RIGHT OF QUALIFIED VOTERS,
REGARDLESS OF THEIR POLITICAL PERSUASION, TO CAST THEIR VOTES
EFFECTIVELY."  THE RIGHT TO VOTE DERIVES FROM THE RIGHT OF ASSOCIATION
THAT IS AT THE CORE OF THE FIRST AMENDMENT, PROTECTED FROM STATE
INFRINGEMENT BY THE FOURTEENTH AMENDMENT.  NAACP V. BUTTON, 371 U.S.
415, 430 (1963); BATES V. LITTLE ROCK, 361 U.S. 516, 522 - 523 (1960);
NAACP V. ALABAMA, 357 U.S. 449, 460 - 461 (1958).  INDEED, THE RIGHT TO
VOTE IS "A FUNDAMENTAL POLITICAL RIGHT, BECAUSE PRESERVATIVE OF ALL
RIGHTS,"  YICK WO V. HOPKINS, 118 U.S. 356, 370 (1886), AND "(OTHER
RIGHTS, EVEN THE MOST BASIC, ARE ILLUSORY IF THE RIGHT TO VOTE IS
UNDERMINED," WESBERRY V. SANDERS, 376 U.S. 1, (1964).  SEE ALSO
REYNOLDS V. SIMS, 377 U.S. 533, 555 (1964).  THUS, WHEN LEGISLATION
BURDENS SUCH A FUNDAMENTAL CONSTITUTIONAL RIGHT, IT IS NOT ENOUGH THAT
THE LEGISLATIVE MEANS RATIONALLY PROMOTE LEGITIMATE GOVERNMENTAL ENDS. 
RATHER, 

"GOVERNMENTAL ACTION MAY WITHSTAND CONSTITUTIONAL SCRUTINY ONLY UPON
A CLEAR SHOWING THAT THE BURDEN IMPOSED IS NECESSARY TO PROTECT A
COMPELLING AND SUBSTANTIAL GOVERNMENTAL INTEREST.  SHAPIRO V. THOMPSON,
394 U.S. (618, 634 (1969)); UNITED STATES V JACKSON, 390 U.S. 570, 582
583 (1968); SHERBERT V. VERNER, 374 U.S. 398, 406 - 409 (1963).  AND
ONCE IT BE DETERMINED THAT A BURDEN HAS BEEN PLACED UPON A
CONSTITUTIONAL RIGHT, THE ONUS OF DEMONSTRATING THAT NO LESS INTRUSIVE
MEANS WILL ADEQUATELY PROTECT COMPELLING STATE INTERESTS IS UPON THE
PARTY SEEKING TO JUSTIFY THE BURDEN.  SEE SPEISER V. RANDALL, 357 U.S.
513, 525 - 526 (1958)."  OREGON V. MITCHELL, 400 U.S. 112, 238 (1970)
(SEPARATE OPINION OF BRENNAN, WHITE, AND MARSHALL, JJ.).  SEE ALSO DUNN
V. BLUMSTEIN, 405 U.S. 330, 336 - 337 (1972); KRAMER V. UNION FREE
SCHOOL DISTRICT, 395 U.S. 621, 627 (1969); WILLIAMS V. RHODES, 393
U.S., AT 31. 

I HAVE JOINED THE COURT'S OPINION IN AMERICAN PARTY OF TEXAS V.
WHITE, SUPRA, /1/  BECAUSE I AGREE THAT, ALTHOUGH THE CONDITIONS FOR
ACCESS TO THE GENERAL ELECTION BALLOT IMPOSED BY TEXAS LAW BURDEN
CONSITIUTIONALLY PROTECTED RIGHTS, NEVERTHELESS THOSE LAWS "ARE
CONSTITUTIONALLY VALID MEASURES, REASONABLY TAKEN IN PURSUIT OF VITAL
STATE OBJECTIVES THAT CANNOT BE SERVED EQUALLY WELL IN SIGNIFICANTLY
LESS BURDENSOME WAYS."  POST, AT 781.  I DISSENT, HOWEVER, FROM THE
COURT'S HOLDING IN THESE CASES THAT, ALTHOUGH THE CALIFORNIA PARTY
DISAFFILIATION RULE, CALIFORNIA ELECTIONS CODE 6830(D) SUPP. 1974),
ALSO BURDENS CONSTITUTIONALLY PROTECTED RIGHTS, CALIFORNIA'S COMPELLING
STATE INTERESTS "CANNOT BE SERVED EQUALLY WELL IN SIGNIFICANTLY LESS
BURDENSOME WAYS." 

        I 

THE CALIFORNIA STATUTE ABSOLUTELY DENIES BALLOT POSITION TO
INDEPENDENT CANDIDATES WHO, AT ANY TIME WITHIN 12 MONTHS PRIOR TO THE
IMMEDIATELY PRECEDING PRIMARY ELECTION, WERE REGISTERED AS AFFILIATED
WITH A QUALIFIED POLITICAL PARTY.  INTERTWINED WITH CALIFORNIA
ELECTIONS CODE 2500 - 2501 (1961), WHICH REQUIRE PRIMARY ELECTIONS TO
BE HELD FIVE MONTHS BEFORE THE GENERAL ELECTION, 6830(D) (SUPP. 1974)
PLAINLY PLACES A SIGNIFICANT BURDEN UPON INDEPENDENT CANDIDACY -- AND
THEREFORE EFFECTIVELY BURDENS AS WELL THE RIGHTS OF POTENTIAL
SUPPORTERS AND VOTERS TO ASSOCIATE FOR POLITICAL PURPOSES AND TO VOTE,
SEE WILLIAMS V. RHODES, SUPRA, AT 30; BULLOCK V. CARTER, 405 U.S. 134,
143 (1972) -- BECAUSE POTENTIAL INDEPENDENT CANDIDATES, CURRENTLY
AFFILIATED WITH A RECOGNIZED PARTY, ARE REQUIRED TO TAKE AFFIRMATIVE
ACTION TOWARD CANDIDACY FULLY 17 MONTHS BEFORE THE GENERAL ELECTION. 
THUS, SUCH CANDIDATES MUST MAKE THAT DECISION AT A TIME WHEN, AS A
MATTER OF THE REALITIES OF OUR POLITICAL SYSTEM, THEY CANNOT KNOW
EITHER WHO WILL BE THE NOMINEES OF THE MAJOR PARTIES, OR WHAT THE
SIGNIFICANT ELECTION ISSUES MAY BE.  THAT IS AN IMPOSSIBLE BURDEN TO
SHOULDER.  WE RECOGNIZED IN WILLIAMS V. RHODES, SUPRA, AT 33, THAT "THE
PRINCIPAL POLICIES OF THE MAJOR PARTIES CHANGE TO SOME EXTENT FROM YEAR
TO YEAR, AND . . . THE IDENTITY OF THE LIKELY MAJOR PARTY NOMINEES MAY
NOT BE KNOWN UNTIL SHORTLY BEFORE THE ELECTION . . . ."  TODAY, NOT
EVEN THE CASUAL OBSERVER OF AMERCAN POLITICS CAN FAIL TO REALIZE THAT
OFTEN A WHOLLY UNANTICIPATED EVENT WILL IN ONLY A MATTER OF MONTHS
DRAMATICALLY ALTER POLITICAL FORTUNES AND INFLUENCE THE VOTER'S
ASSESSMENT OF VITAL ISSUES.  BY REQUIRING POTENTIAL INDEPENDENT
CANDIDATES TO ANTICIPATE, AND CRYSTALLIZE THEIR POLITICAL RESPONSES TO,
THESE CHANGES AND EVENTS 17 MONTHS PRIOR TO THE GENERAL ELECTION,
6830(D) (SUPP. 1974) CLEARLY IS OUT OF STEP WITH "THE POTENTIAL
FLUIDITY OF AMERICAN POLITICAL LIFE," JENNESS V. FORTSON, 403 U.S. 431,
439 (1971), OPERATING AS IT DOES TO DISCOURAGE INDEPENDENT CANDIDIACIES
AND FREEZE THE POLITICAL STATUS QUO. 

THE CASES OF APPELLANTS STORER AND FROMMHAGEN POINTEDLY ILLUSTRATE
HOW BURDENSOME CALIFORNIA'S PARTY DISAFFILIATION RULE CAN BE.  BOTH
STORER AND FROMMHAGEN SOUGHT TO RUN IN THEIR RESPECTIVE DISTRICTS AS
INDEPENDENT CANDIDATES FOR CONGRESS.  THE TERM OF OFFICE FOR THE UNITED
STATES HOUSE OF REPRESENTATIVES, OF COURSE, IS TWO YEARS.  THUS,
6830(D) (SUPP. 1974) REQUIRED STORER AND FROMMHAGEN TO DISAFFILIATE
FROM THEIR PARTIES WITHIN SEVEN MONTHS AFTER THE PRECEDING CONGESSIONAL
ELECTION.  FEW INCUMBENT CONGRESSMEN, HOWEVER, DECLARE THEIR INTENTION
TO SEEK RE-ELECTION SEVEN MONTHS AFTER ELECTION AND ONLY FOUR MONTHS
INTO THEIR TERMS.  YET, DESPITE THE UNAVAILABILITY OF THIS PATENTLY
CRITICAL PIECE OF INFORMATION, STORER AND FROMMHAGEN WERE FORCED BY
6830(D) (SUPP. 1974) TO EVALUATE THEIR POLITICAL OPPORTUNITIES AN OPT
IN OR OUT OF THEIR 17 MONTHS BEFORE THE NEXT CONGRESSIONAL ELECTION. 

THE COURT ACKNOWLEDGES THE BURDENS IMPOSED BY 6830(D) (SUPP. 1974)
UPON FUNDAMENTAL PERSONAL LIBERTIES, SEE ANTE, AT 734, BUT AGREES WITH
THE STATE'S ASSERTION THAT THE BURDENS ARE JUSTIFIED BY THE STATE'S
COMPELLING INTEREST IN THE STABILITY OF ITS POLITICAL SYSTEM, ANTE, AT
736.  WITHOUT 6830(D) (SUPP. 1974), THE ARGUMENT RUNS, THE PARTY'S
PRIMARY SYSTEM, AN INTEGRAL PART OF THE ELECTION PROCESS, IS CAPABLE OF
SUBVERSION BY A CANDIDATE FWHO FIRST OPTS TO PARTICIPATE IN THAT METHOD
OF BALLOT ACCESS, AND LATER ABANDONS THE PARTY AND ITS CANDIDATE
SELECTION PROCESS, TAKING WITH HIM HIS PARTY SUPPORTERS.  THUS, IN
SUSTAINING THE VALIDITY OF 6830(D) (SUPP. 1974), THE COURT FINDS
COMPELLING THE STATE'S INTERESTS IN PREVENTING SPLINTERED PARTIES AND
UNRESTRICTED FACTIONALISM AND PROTECTING THE DIRECT PRIMARY SYSTEM,
ANTE, AT 736.  /2/ 

BUT THE IDENTIFICATION OF THESE COMPELLING STATE INTERESTS, WHICH I
ACCEPT, DOES NOT END THE INQUIRY.  THERE REMAINS THE NECESSITY OF
DETERMINING WHETHER THESE VITAL STATE OBJECTIVES "CANNOT BE SERVED
EQUALLY WELL IN SIGNIFICANTLY LESS BURDENSOME WAYS."  COMPELLING STATE
INTERESTS MAY NOT BE PURSUED BY 

"MEANS THAT UNNECESSARILY BURDEN OR RESTRICT CONSTITUTIONALLY
PROTECTED ACTIVITY.  STATUTES AFFECTING CONSTITUTIONAL RIGHTS MUST BE
DRAWN WITH 'PRECISION,'  NAACP V. BUTTON, 371 U.S. 415, 438 (1963);
UNITED STATES V. ROBEL, 389 U.S. 258, 265 (1967), AND MUST BE
'TAILORED' TO SERVE THEIR LEGITIMATE OBJECTIVES.  SHAPIRO V. THOMPSON
(394 U.S. 618, 631 (1969)).  AND IF THERE ARE OTHER, REASONABLE WAYS TO
ACHIEVE THOSE GOALS WITH A LESSER BURDEN ON CONSTITUTIONALLY PROTECTED
ACTIVITY, A STATE MAY NOT CHOOSE THE WAY OF GREATER INTERFERENCE.  IF
IT ACTS AT ALL, IT MUST CHOOSE 'LESS DRASTIC MEANS.'  SHELTON V.
TUCKER, 364 U.S. 479, 488 (1960)."  DUNN V. BLUMSTEIN, 405 U.S., AT
343. 

WHILE IT IS TRUE THAT THE COURT PURPORTS TO EXAMINE INTO "LESS
DRASTIC MEANS," ITS ANALYSIS IS WHOLLY INADEQUATE.  THE DISCUSSION IS
LIMITED TO THESE PASSING REMARKS, ANTE, AT 736: 

"NOR DO WE HAVE REASON FOR CONCLUDING THAT THE DEVICE CALIFORNIA
CHOSE, 6830(D) (SUPP. 1974), WAS NOT AN ESSENTIAL PART OF ITS OVERALL
MECHANISM TO ACHIEVE ITS ACCEPTABLE GOALS.  AS WE INDICATED IN ROSARIO,
THE CONSTITUTION DOES NOT REQUIRE THE STATE TO CHOOSE INEFFECTUAL MEANS
TO ACHIEVE ITS AIMS.  TO CONCLUDE OTHERWISE MIGHT SACRIFICE THE
POLITICAL STABILITY OF THE SYSTEM OF THE STATE, WITH PROFOUND
CONSEQUENCES FOR THE ENTIRE CITIZENRY, MERELY IN THE INTEREST OF
PARTICULAR CANDIDATES AND THEIR SUPPORTERS HAVING INSTANTANEOUS ACCESS
TO THE BALLOT."  NATURALLY, THE CONSTITUTION DOES NOT REQUIRE THE STATE
TO CHOOSE INEFFECTIVE MEANS TO ACHIEVE ITS AIMS.  THE STATE MUST
DEMONSTRATE, HOWEVER, THAT THE MEANS IT HAS CHOSEN ARE "NECESSARY." 
SHAPIRO V. THOMPSON, 394 U.S. 618, 634 (1969).  SEE ALSO AMERICAN PARTY
OF TEXAS V. WHITE, POST, AT 780 - 781. 

I HAVE SEARCHED IN VAIN FOR EVEN THE SLIGHTEST EVIDENCE IN THE
RECORDS OF THESE CASES OF ANY EFFORT ON THE PART OF THE STATE TO
DEMONSTRATE THE ABSENCE OF REASONABLY LESS BURDENSOME MEANS OF
ACHIEVING ITS OBJECTIVES.  THIS CRUCIAL FAILURE CANNOT BE REMEDIED BY
THE COURT'S CONJECTURE THAT OTHER MEANS "MIGHT SACRIFICE THE POLITICAL
STABILITY OF THE SYSTEM OF THE STATE" (EMPHASIS ADDED).  WHEN A STATE
LEGILATION BURDENS FUNDAMENTAL CONSTITUTIONAL RIGHTS, AS CONCEDED HERE,
WE ARE NOT AT LIBERTY TO SPECULATE THAT THE STATE MIGHT BE ABLE TO
DEMONSTRATE THE ABSENCE OF LESS BURDENSOME MEANS; THE BURDEN OF
AFFIRMATIVELY DEMONSTRATING THIS IS UPON THE STATE.  DUNN V. BLUMSTEIN,
SUPRA, AT 343; SHAPIRO V. THOMPSON, SUPRA, AT 634; SHERBERT V. VERNER,
374 U.S. 398, 406 - 409 (1963). 

MOREOVER, LESS DRASTIC MEANS -- WHICH WOULD NOT REQUIRE THE STATE TO
GIVE APPELLANTS "INSTANTANEOUS ACCESS TO THE BALLOT" -- SEEM PLAINLY
AVAILABLE TO ACHIEVE CALIFORNIA'S OBJECTIVES.  FIRST, REQUIRING PARTY
DISAFFILIATION 12 MONTHS BEFORE THE PRIMARY ELECTIONS IS UNREASONABLE
ON ITS FACE.  THERE IS NO EVIDENCE THAT SPLINTERING AND FACTIONALISM OF
POLITICAL PARTIES WILL RESULT UNLESS DISAFFILIATION IS EFFECTED THAT
FAR IN ADVANCE OF THE PRIMARIES.  TO THE CONTRARY, WHATEVER THREAT MAY
EXIST TO PARTY STABILITY IS MORE LIKELY TO SURFACE ONLY SHORTLY BEFORE
THE PRIMARY, WHEN THE IDENTITIES OF THE POTENTIAL FIELD OF CANDIDATES
AND ISSUES BECOME KNOWN.  SEE WILLIAMS V. RHODES, 393 U.S., AT 33. 
THUS, THE STATE'S INTERESTS WOULD BE ADEQUATELY SERVED AND THE RIGHTS
OF THE APPELLANTS LESS BURDEN IF THE DATE WHEN DISAFFILIATION MUST BE
EFFECTED WERE SET SIGNIFICANTLY CLOSER TO THE PRIMARIES.  SECOND, THE
REQUIREMENT OF PARTY DISAFFILIATION COULD BE LIMITED TO THOSE
INDEPENDENT CANDIDATES WHO ACTUALLY RUN IN A PARTY PRIMARY.  SECTION
6830(D) (SUPP. 1974) SWEEPS FAR TOO BROADLY IN ITS APPLICATION TO
POTENTIAL INDEPENDENT CANDIDATES WHO, THOUGH REGISTERED AS AFFILIATED
WITH A RECOGNIZED PARTY, DO NOT RUN FOR THE PARTY'S NOMINATION.  SUCH
AN INDEPENDENT CANDIDATE PLAINLY POSES NO THREAT OF UTILIZING THE PARTY
MACHINERY TO RUN IN THE PRIMARY, AND THEN DECLARING INDEPENDENT
CANDIDACY, THEREBY SPLITTING THE PARTY. 

      II 

I ALSO DISSENT FROM THE COURT'S REMAND, IN THE CASE OF APPELLANTS
HALL AND TYNER, OF THE QUESTION CONCERNING THE CONSTITUTIONALITY OF THE
PETITION REQUIREMENTS IMPOSED UPON INDEPENDENT CANDIDATES.  UNDER THE
RELEVANT STATUTES, HALL AND TYNER, CANDIDATES FOR PRESIDENT AND VICE
PRESIDENT, WERE REQUIRED TO FILE SIGNATURES EQUAL TO 5% OF THE TOTAL
VOTE CAST IN CALIFORNIA'S PRECEDING GENERAL ELECTION.  6831.  HOWEVER,
THE POOL FROM WHICH SIGNATURES COULD BE DRAWN EXCLUDED ALL PERSONS WHO
HAD VOTED IN THE PRIMARY ELECTION, INCLUDING VOTERS WHO HAD CAST
NONPARTISAN BALLOTS.  6830(C) (SUPP. 1974).  FURTHERMORE, CIRCULATION
OF THE PETITIONS WAS NOT PERMITTED UNTIL TWO MONTHS AFTER THE
PRIMARIES, AND THE NECESSARY SIGNATURES WERE REQUIRED TO BE OBTAINED
DURING A 24-DAY PERIOD.  6933 (SUPP. 1974).  THE COURT AVOIDS RESOLVING
THE CONSTITUTIONALITY OF THESE ELECTION LAWS BY REMANDING TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS.  ON REMAND, THE DISTRICT COURT
IS DIRECTED TO DETERMINE (1) THE TOTAL VOTE CAST IN THE LAST GENERAL
ELECTION AS A PREDICATE TO COMPUTATION OF THE 5% OF SIGNATURES REQUIRED
BY THE STATUTORY PROVISION, AND (2) THE SIZE OF THE POOL TO WHICH
APPELLANTS WERE REQUIRED TO LIMIT THEIR EFFORTS IN OBTAINING
SIGNATURES.  THE COURT REASONS THAT THESE FINDINGS ARE NECESSARY TO A
DETERMINATION "WHETHER THE AVAILABLE POOL IS SO DIMINISHED IN SIZE BY
THE DISQUALIFICATION OF THOSE WHO VOTED IN THE PRIMARY THAT THE 325,000
SIGNATURE REQUIREMENT, TO BE SATISFIED IN 24 DAYS, IS TOO GREAT A
BURDEN ON THE INDEPENDENT CANDIDATES FOR THE OFFICES OF PRESIDENT AND
VICE PRESIDENT."  ANTE, AT 740.     IF SUCH A REMAND WERE DIRECTED IN
THE CASES OF STORER AND FROMMHAGEN I COULD AGREE, FOR IN THOSE CASES
THERE IS A COMPLETE ABSENCE OF DATA NECESSARY TO FACILITATE
DETERMINATION OF THE ACTUAL PERCENTAGE OF AVAILABLE VOTERS THAT
APPELLANTS STORER AND FROMMHAGEN WERE REQUIRED TO SECURE.  A REMAND IN
THE CASE OF HALL AND TYNER, HOWEVER, IS UNNECESSARY BECAUSE THE DATA
UPON WHICH RELEVANT FINDINGS MUST BE BASED ARE ALREADY AVAILABLE TO US.
THE DATA ARE CITED BY THE COURT, ANTE, AT 742 N. 12 AND AT 744 N. 14. 
EVALUATED IN LIGHT OF OUR DECISION IN JENNESS V. FORTSON, SUPRA, THE
DATA LEAVE NO ROOM FOR DOUBT THAT CALIFORNIA'S STATUTORY REQUIREMENTS
ARE UNCONSTITUTIONALLY BURDENSOME AS APPLIED TO HALL AND TYNER. 
OFFICIAL VOTING STATISTICS PUBLISHED BY THE CALIFORNIA SECRETARY OF
STATE INDICATE THAT 6,633,400 PERSONS VOTED IN THE 1970 GENERAL
ELECTION.  SEE SECRETARY OF STATE, STATEMENT OF VOTE, GENERAL ELECTION,
NOVEMBER 7, 1972, P. 6.  APPELLANTS WERE REQUIRED TO SECURE SIGNATURES
TOTALING 5% OF THAT NUMBER, I. E., 331,670.  THE STATISTICS ALSO
INDICATE THE SIZE OF THE TOTAL POOL FROM WHICH APPELLANTS WERE
PERMITTED TO GATHER SIGNATURES.  THE TOTAL NUMBER OF REGISTERED VOTERS
ON SEPTEMBER 14, 1972 -- THE LAST DAY APPELLANTS WERE PERMITTED TO FILE
NOMINATION PETITIONS -- WAS 9,953,124.  SEE SECRETARY OF STATE, REPORT
OF REGISTRATION, SEPTEMBER 1972, P. 8.  OF THAT NUMBER, 6,460,220
REGISTERED VOTERS COULD NOT SIGN PETITIONS BECAUSE THEY HAD VOTED IN
THE 1972 PRIMARY ELECTIONS.  SEE SECRETARY OF STATE, STATEMENT OF VOTE,
CONSOLIDATED PRIMARY ELECTION, JUNE 6, 1972, PP. 3, 4 - 23.  THUS, THE
TOTAL POOL OF REGISTERED VOTERS AVAILABLE TO APPELLANTS WAS REDUCED TO
APPROXIMATELY 3,492,904, OF WHICH THE REQUIRED 331,670 SIGNATURES WAS
9.5%.  /3/ 

IN MY VIEW, A PERCENTAGE REQUIREMENT EVEN APPROACHING THE RANGE OF
9.5% SERVES NO COMPELLING STATE INTEREST WHICH CANNOT BE SERVED AS WELL
BY LESS DRASTIC MEANS.  TO BE SURE, IN JENNESS WE ACKNOWLEDGED THAT: 

     "THERE IS SURELY AN IMPORTANT STATE INTEREST IN REQUIRING SOME

  PRELIMINARY SHOWING OF A SIGNIFICANT MODICUM OF SUPPORT BEFORE

  PRINTING THE NAME OF A POLITICAL ORGANIZATION'S CANDIDATE ON THE

  BALLOT -- THE INTEREST, IF NO OTHER, IN AVOIDING CONFUSION,

DECEPTION, AND EVEN FRUSTRATION OF THE DEMOCRATIC PROCESS AT THE

  GENERAL ELECTION."  403 U.S., AT 442. 

WE THERE UPHELD THE CONSTITUTIONALITY OF GEORGIA'S ELECTION LAWS
REQUIRING POTENTIAL INDEPENDENT CANDIDATES TO GATHER THE SIGNATURES
EQUAL TO 5% OF THE TOTAL ELIGIBLE ELECTORATE AT THE LAST GENERAL
ELECTION FOR THE OFFICE IN QUESTION.  HOWEVER, CANDIDATES WERE GIVEN A
FULL SIX MONTHS TO CIRCULATE PETITIONS AND NO RESTRICTIONS WERE PLACED
UPON THE POOL OF REGISTERED VOTERS FROM WHICH SIGNATURES COULD BE
DRAWN.  IN THAT CIRCUMSTANCES, WE FOUND THAT GEORGIA IMPOSED NO UNDULY
BURDENSOME RESTRICTIONS UPON THE FREE CIRCULATION OF NOMINATING
PETITIONS.  WE NOTED: 

"A VOTER MAY SIGN A PETITION EVEN THOUGH HE HAS SIGNED OTHERS, AND A
VOTER WHO HAS SIGNED THE PETITION OF A NONPARTY CANDIDATE IS FREE
THEREAFTER TO PARTICIPATE IN A PARTY PRIMARY.  THE SIGNER OF A PETITION
IS NOT REQUIRED TO STATE THAT HE INTENDS TO VOTE FOR THE CANDIDATE AT
THE ELECTION.  A PERSON WHO HAS PREVIOUSLY VOTED IN A PARTY PRIMARY IS
FULLY ELIGIBLE TO SIGN A PETITION, AND SO, ON THE OTHER HAND, IS A
PERSON WHO WAS NOT EVEN REGISTERED AT THE TIME OF THE PREVIOUS
ELECTION.  NO SIGNATURE ON A NOMINATING PETITION NEED BE NOTARIZED." 
ID., AT 438 - 439 (FOOTNOTES OMITTED).  THUS, ALTHOUGH GEORGIA'S 5%
REQUIREMENT WAS HIGHER THAN THAT REQUIRED BY MOST STATES, THE COURT
FOUND IT "BALANCED BY THE FACT THAT GEORGIA . . . IMPOSED NO ARBITRARY
RESTRICTIONS WHATEVER UPON THE ELIGIBILITY OF ANY REGISTERED VOTER TO
SIGN AS MANY NOMINATING PETITIONS AS HE WISHES."  ID., AT 442. 

CALIFORNIA SEEKS TO JUSTIFY ITS ELECTION LAWS BY POINTING TO THE SAME
SUBSTANTIAL INTERESTS WE IDENTIFIED IN JENNESS, OF INSURING THAT
CANDIDATES POSSESS A MODICUM OF SUPPORT, AND THAT VOTERS ARE NOT
CONFUSED BY THE LENGTH OF THE BALLOT.  BUT IN SHARP CONTRAST TO THE
ELECTION LAWS WE UPHELD IN JENNESS, CALIFORNIA'S STATUTORY SCHEME
GREATLY RESTRICTED THE POOL OF REGISTERED VOTERS FROM WHICH APPELLANTS
HALL AND TYNER WERE PERMITTED TO DRAW SIGNATURES.  THE 5% REQUIREMENT,
IN REALITY, FORCED THEM TO SECURE THE SIGNATURES OF 9.5% OF THE VOTERS
PERMITTED BY LAW TO SIGN NOMINATION PETITIONS.  MOREOVER, UNLIKE
GEORGIA'S SIX-MONTH PERIOD FOR GATHERING SIGNATURES, THE CALIFORNIA
ELECTION LAWS REQUIRED APPELLANTS TO MEET THAT STATE'S HIGHER
PERCENTAGE REQUIREMENT IN ONLY 24 DAYS.  THUS, EVEN CONCEDING THE
SUBSTANTIALITY OF ITS AIMS, THE STATE HAS COMPELTELY FAILED TO
DEMONSTRATE WHY MEANS LESS DRASTIC THAN ITS HIGH PERCENTAGE REQUIREMENT
AND SHORT CIRCULATION PERIOD -- SUCH AS THE STATUTORY SCHEME ENACTED IN
GEORGIA -- WILL NOT ACHIEVE ITS INTERESTS. 

ACCORDINGLY, I WOULD REVERSE THE JUDGMENT OF THE DISTRICT COURT
DISMISSING THESE ACTIONS, AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

/1/  MR. JUSTICE DOUGLAS ADHERES TO THE VIEWS STATED IN HIS
DISSENTING OPINION IN AMERICAN PARTY OF TEXAS V. WHITE, POST, P. 795. 

/2/  THE COURT ALSO OPINES THAT 6830(D) (SUPP. 1974) MAY BE "A
SUBSTANTIAL BARRIER TO A PARTY FIELDING AN 'INDEPENDENT' CANDIDATE TO
CAPTURE AND BLEED OFF VOTES IN THE GENERAL ELECTION THAT MIGHT WELL GO
TO ANOTHER PARTY," ANTE, AT 735.  BUT THE STATE SUGGESTS NO RELIANCE
UPON THIS ALLEGED INTEREST AND WE ARE THEREFORE NOT AT LIBERTY TO TURN
OUR DECISION UPON OUR CONJECTURE THAT THIS MIGHT HAVE BEEN A STATE
OBJECTIVE.  IN ANY EVENT, THE PROSPECT OF SUCH A MISUSE SEEMS MORE
FANCIFUL THAN REAL AND, AS WE SAID IN WILLIAMS V. RHODES, 393 U.S. 23,
33 (1968), "(NO SUCH REMOTE DANGER CAN JUSTIFY (AN) IMMEDIATE AND
CRIPPLING IMPACT ON . . . BASIC CONSTITUTIONAL RIGHTS . . . ." 

/3/  THE COURT'S COMPUTATIONS, ANTE, AT 744 N. 14, SUGGEST THAT HALL
AND TYNER NEED ONLY HAVE COLLECTED SIGNATURES FROM 8.1% OF THE
AVAILABLE VOTER POOL.  THE COURT'S CALCULATION ASSUMES THAT THE VOTER
POOL AVAILABLE TO HALL AND TYNER INCLUDED APPROXIMATELY 579,000 PERSONS
WHO MAY HAVE ONLY VOTED NONPARTISAN PRIMARIES.  SECTION 6830(C)(SUPP. 
1974) MAKES NO SUCH EXCEPTION; THE POOL AVAILABLE FOR SIGNATURES IS
EXPRESSLY LIMITED TO THOSE VOTERS WHO "DID NOT VOTE AT THE IMMEDIATELY
PRECEDING PRIMARY ELECTION.  . . ."  I AGREE WITH THE COURT, HOWEVER,
THAT EXCLUSION OF PERSONS VOTING AT NONPARTISAN PRIMARIES IS NOT
SUPPORTED BY A COMPELLING STATE INTEREST. 

PAUL N. HALVONIK AND JOSEPH REMCHO ARGUED THE CAUSE FOR APPELLANTS
IN BOTH CASES.  WITH THEM ON THE BRIEF FOR APPELLANTS IN NO. 72 - 812
WAS CHARLES C. MARSON.  APPELLANT PRO SE FILED A BRIEF IN NO. 72 -
6050. 

CLAYTON P. ROCHE, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR APPELLEE BROWN IN BOTH CASES.  WITH HIM ON THE BRIEF WERE
EVELLE J. YOUNGER, ATTORNEY GENERAL , AND IVER E. SKNJEIE, ASSISTANT
ATTORNEY GENERAL. 

ROLLAND R. O'HARE FILED A BRIEF FOR THE COMMITTEE FOR DEMOCRATIC
ELECTION LAWS AS AMICUS CURIAE IN NO. 72 - 812. 
..END :



















AMERICAN PARTY OF TEXAS V. WHITE, 415 U.S. 767 


       AMERICAN PARTY OF TEXAS ET AL. V. WHITE, SECRETARY OF STATE

           OF TEXAS

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF TEXAS

        NO. 72 - 887.  ARGUED NOVEMBER 5, 1973 -- DECIDED

        MARCH 26, 1974; TOGETHER WITH NO. 72 - 942, HAINSWORTH

        V. WHITE, SECRETARY OF STATE OF TEXAS, ALSO ON APPEAL FROM

           THE SAME COURT. 

        NO. 72 - 942, AFFIRMED; 349 F. SUPP. 1272, AFFIRMED IN
PART,

           VACATED AND REMANDED IN PART. 


    TEXAS LAWS INVOLVED IN THIS LITIGATION PROVIDE FOUR METHODS FOR

  NOMINATING CANDIDATES IN A GENERAL ELECTION: (1) CANDIDATES OF

  PARTIES WHOSE GUBERNATORIAL CHOICE POLLED MORE THAN 200,000 VOTES

  IN THE LAST GENERAL ELECTION ARE NOMINATED BY PRIMARY ELECTION

  ONLY, AND THE NOMINEES OF THESE PARTIES AUTOMATICALLY APPEAR ON

  THE BALLOT; (2) CANDIDATES WHOSE PARTIES POLL LESS THAN 200,000

  VOTES, BUT MORE THAN 2%, OF THE TOTAL VOTE CAST FOR GOVERNOR IN

THAT ELECTION ARE NOMINATED BY PRIMARY ELECTION OR NOMINATING

  CONVENTIONS; (3) IF THE FOREGOING PROCEDURES DO NOT APPLY,

  PRECINCT CONVENTIONS CAN, PURSUANT TO TEX.  ELECTION CODE, ART.

  13.45 (2) (SUPP. 1973), NOMINATE CANDIDATES IF THE PARTY IS ABLE,

  BY NOTARIZED SIGNATURES, TO EVIDENCE SUPPORT BY AT LEAST 1% OF

  THE TOTAL GUBERNATORIAL VOTE AT THE LAST PRECEDING GENERAL

  ELECTION OR (BY A PROCESS TO BE COMPLETED WITHIN 55 DAYS AFTER

  THE GENERAL MAY PRIMARY ELECTION) CAN PRODUCE SUFFICIENT

  SUPPLEMENTAL PETITIONS WITH NOTARIZED SIGNATURES (NOT INCLUDING

  VOTERS WHO HAVE ALREADY PARTICIPATED IN ANY OTHER PARTY'S PRIMARY

ELECTION OR NOMINATING PROCESS) TO MAKE UP A COMBINED TOTAL OF

  THE 1%; AND (4) UNDER ARTS. 13.50 AND 13.51, AN INDEPENDENT

  CANDIDATE, REGARDLESS OF THE OFFICE SOUGHT, CAN QUALIFY BY FILING

  WITHIN THE TIME PRESCRIBED AT THE LAST PRECEDING GENERAL ELECTION

  IN A SPECIFIED LOCALITY, THE PERCENTAGES VARYING WITH THE OFFICES

  SOUGHT (IN THIS CASE 3% IN A CONGRESSIONAL DISTRICT AND 5% IN A

  STATE REPRESENTATIVE'S DISTRICT).  IN NO EVENT, ARE MORE THAN 500

  SIGNATURES REQUIRED OF A CANDIDATE FOR ANY "DISTRICT OFFICE."  NO

  VOTER, PARTICIPATING IN ANY OTHER POLITICAL PARTY NOMINATING

  PROCESS OR SIGNING A NOMINATING PETITION FOR THE SAME OFFICE, MAY

  SIGN AN INDEPENDENT'S PETITION.  APPELLANTS, MINORITY POLITICAL

  PARTIES AND THEIR CANDIDATES AND SUPPORTERS, AND UNAFFILIATED

  CANDIDATES, BROUGHT ACTIONS IN THE DISTRICT COURT SEEKING

  DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE ENFORCEMENT OF THE

  TEXAS ELECTION LAWS, WHICH THEY CLAIMED INFRINGED THEIR

  ASSOCIATIONAL RIGHTS UNDER THE FIRST AND FOURTH AMENDMENTS AND

  WERE INVIDIOUSLY DISCRIMINATORY.  THEY ALSO CHALLENGED THE

  PRACTICE OF PRINTING ON ABSENTEE BALLOTS ONLY THE NAMES OF THE

TWO MAJOR POLITICAL PARTIES AND THE STATE'S FAILURE TO REQUIRE

  PRINTING MINORITY PARTY AND INDEPENDENT CANDIDATES' NAMES ON

  ABSENTEE BALLOTS AND THE EXCLUSION OF MINORITY PARTIES FROM THE

  BENEFITS OF THE MCKOOL-STROUD PRIMARY FINANCING LAW OF 1972,

  WHICH PROVIDED FOR PUBLIC FINANCING FROM STATE REVENUES FOR

  PRIMARY ELECTION OF POLITICAL PARTIES CASTING 200,000 OR MORE

  VOTES IN THE LAST PRECEDING GENERAL ELECTION FOR GOVERNOR.  THE

  DISTRICT COURT UPHELD THE CONSTITUTIONALITY OF THE STATE'S

  ELECTION SCHEME.  HELD: 

     1.  ARTICLE 13.45 (2), WHICH DOES NOT FREEZE THE STATUS QUO
BUT

  AFFORDS MINORITY PARTIES A REAL AND ESSENTIALLY EQUAL OPPORTUNITY

  FOR BALLOT QUALIFICATION, DOES NOT CONTRAVENE THE FIRST AND

  FOURTEENTH AMENDMENTS AND IS IN FURTHERANCE OF A COMPELLING STATE

  INTEREST.  STORER V. BROWN, ANTE, P. 724.  PP. 776 - 788. 

     (A) THE EQUAL PROTECTION CLAUSE DOES NOT FORBID THE
REQUIREMENT

THAT SMALL PARTIES PROCEED BY CONVENTION RATHER THAN PRIMARY

  ELECTION.  THE CONVENTION PROCESS HAS NOT BEEN SHOWN HERE TO BE

  INDIVIDIOUSLY MORE BURDENSOME THAN THE PRIMARY ELECTION, FOLLOWED

  BY A RUNOFF ELECTION WHERE NECESSARY.  PP. 781 - 782. 

     (B) SO LONG AS THE LARGER PARTIES MUST DEMONSTRATE MAJOR VOTER

  SUPPORT AT THE LAST ELECTION, IT IS NOT INVIDIOUS TO REQUIRE

  SMALLER PARTIES (WHICH NEED MAKE NO SUCH DEMONSTRATION) TO

  ESTABLISH THEIR POSITION OTHERWISE; AND THE 1% REQUIREMENT (WHICH

  TWO OF THE APPELLANT PARTIES WERE ABLE TO MEET) IMPOSES NO

  INSURMOUNTABLE OBSTACLE ON A SMALL PARTY.  PP. 782 - 784. 

     (C) THE BAR AGAINST A PERSON'S SIGNING A SUPPLEMENTAL PETITION

  WHO HAS VOTED IN A PRIMARY ELECTION OR PARTICIPATED IN A PARTY

  CONVENTION IS NOT UNCONSTITUTIONAL, SINCE HE MAY CHOOSE TO VOTE

  OR TO SIGN A NOMINATING PETITION, BUT NOT TO DO BOTH.  NOR IS IT

  INVIDIOUS TO DISQUALIFY THOSE WHO HAVE VOTED IN A PRIMARY FROM

  SIGNING PETITIONS FOR ANOTHER PARTY SEEKING BALLOT POSITION FOR

  ITS CANDIDATES FOR THE SAME OFFICES, WHERE THAT PARTY HAD ACCESS

  TO THE ENTIRE ELECTORATE AND AN OPPORTUNITY TO COMMIT VOTERS ON

  PRIMARY DAY.  CF. ROSARIO V. ROCKEFELLER, 410 U.S. 752.  PP. 785

  - 786. 

     (D) THE 55-DAY PERIOD PROVIDES SUFFICIENT TIME FOR CIRCULATING

  SUPPLEMENTAL PETITIONS AND IS NOT UNDULY BURDENSOME, NOR IS THE

  NOTARIZATION REQUIREMENT.  PP. 786 - 787. 

     2.  THE PERCENTAGE PROVISIONS IN ARTS. 13.50 AND 13.51 WITH
THE

  500-SIGNATURE FEATURE ARE NOT UNDULY BURDENSOME.  REQUIRING

  INDEPENDENT CANDIDATES TO EVIDENCE A "SIGNIFICANT MODICUM OF

  SUPPORT"  IS NOT UNCONSTITUTIONAL, AND THE RECORD HERE IS DEVOID

  OF ANY PROOF TO SUPPORT THE CLAIMS OF APPELLANT INDEPENDENT

  CANDIDATES (WHO RELIED SOLELY ON THE MINIMAL 500-VOTE-SIGNATURE

  REQUIREMENT) THAT THESE REQUIREMENTS WERE IMPERMISSABLE ONEROUS. 

  PP. 788 - 791. 

     3.  THE CHALLENGED MCKOOL-STROUD PROVISIONS ARE NOT

  UNCONSTITUTIONAL, SINCE THEY WERE DESIGNED TO COMPENSATE FOR

  PRIMARY ELECTION EXPENSES TO WHICH THE MAJOR PARTIES ALONE ARE

  SUBJECT; AND, AS THE DISTRICT COURT CORRECTLY FOUND, "THE

  CONVENTION AND PETITION PROCEDURE AVAILABLE FOR SMALL AND NEW

  PARTIES CARRIES WITH IT NONE OF THE EXPENSIVE ELECTION

  REQUIREMENTS BURDENING THOSE PARTIES REQUIRED TO CONDUCT

  PRIMARIES."  MOREOVER, THE STATE IS NOT OBLIGED TO FINANCE THE

EFFORTS OF EVERY NASCENT POLITICAL GROUP SEEKING BALLOT

PLACEMENT, LIKE APPELLANT AMERICAN PARTY, WHICH FAILED TO QUALIFY

  FOR THE GENERAL ELECTION BALLOT.  PP. 791 - 794. 

     4.  THE DISTRICT COURT ERRED IN SUSTAINING THE EXCLUSION OF

  MINORITY PARTIES FROM THE ABSENTEE BALLOT.  NO JUSTIFICATION WAS

  OFFERED BY APPELLEES FOR NOT GIVING ABSENTEE BALLOT PLACEMENT TO

  APPELLANT SOCIALIST WORKERS PARTY, WHICH SATISFIED THE STATUTORY

  REQUIREMENTS FOR DEMONSTRATING THE NECESSARY COMMUNITY SUPPORT

  NEEDED TO WIN GENERAL BALLOT POSITION FOR ITS CANDIDATES.  GOOSBY

  V. OSSER, 409 U.S. 512; O'BRIEN V. SKINNER, 414 U.S. 524.  PP.

794 - 795. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

  C.J., AND BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED AN OPINION DISSENTING

  IN PART, POST, P. 795. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THESE CASES BEGAN WHEN APPELLANTS, MINORITY POLITICAL PARTIES AND
THEIR CANDIDATES, QUALIFIED VOTERS SUPPORTING THE MINORITY PARTY
CANDIDATES, AND INDEPENDENT UNAFFILIATED CANDIDATES, BROUGHT FOUR
SEPARATE ACTIONS IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF TEXAS AGAINST THE TEXAS SECRETARY OF STATE SEEKING
DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE ENFORCEMENT OF VARIOUS

THE AMERICAN PARTY OF TEXAS SOUGHT BALLOT POSITION AT THE GENERAL
ELECTION IN 1972 FOR A SLATE OF CANDIDATES FOR VARIOUS STATEWIDE AND
LOCAL OFFICERS, INCLUDING GOVERNOR AND COUNTY COMMISSIONER.  /1/  THE
NEW PARTY OF TEXAS WANTED BALLOT RECOGNITION FOR ITS CANDIDATES FOR THE
GENERAL ELECTION FOR GOVERNOR, CONGRESS, STATE REPRESENTATIVE AND
COUNTY SHERIFF.  THE SOCIALIST WORKERS PARTY MADE SIMILAR CLAIMS WITH
RESPECT TO ITS CANDIDATES FOR GOVERNOR, LIEUTENANT GOVERNOR AND UNITED
STATES SENATOR.  /2/  LAUREL DUNN, A NONPARTISAN CANDIDATE, ATTEMPTED
TO RUN FOR THE UNITED STATES HOUSE OF REPRESENTATIVES FOR THE ELEVENTH
CONGRESSIONAL DISTRICT.  IN HIS ACTION, HE REPRESENTED HIMSELF AND
OTHER NAMED INDEPENDENT CANDIDATES FOR STATE AND LOCAL OFFICES. 
FINALLY, ROBERT HAINSWORTH SOUGHT ELECTION AS STATE REPRESENTATIVE FROM
DISTRICT NO. 86. 

IN THESE ACTIONS, IT WAS ALLEGED THAT, BY EXCLUDING APPELLANTS FROM
THE GENERAL ELECTION BALLOT, VARIOUS PROVISIONS OF THE TEXAS ELECTION
CODE INFRINGED THEIR FIRST AND FOURTEENTH AMENDMENT RIGHT TO ASSOCIATE
FOR THE ADVANCEMENT OF POLITICAL BELIEFS AND INVIDIOUSLY DISCRIMINATED
AGAINST NEW AND MINORITY POLITICAL PARTIES, AS WELL AS INDEPENDENT
CANDIDATES.  APPELLANTS SOUGHT TO ENJOIN THE ENFORCEMENT OF THE
CHALLENGED PROVISIONS IN THE FORTHCOMING NOVEMBER 1972 GENERAL
ELECTION.  THEY ALSO CHALLENGED THE FAILURE OF THE TEXAS LAW TO REQUIRE
PRINTING MINORITY PARTY AND INDEPENDENT CANDIDATES ON ABSENTEE BALLOTS
AND THE EXCLUSION OF MINORITY PARTIES FROM THE BENEFITS OF THE MCKOOL
STROUD PRIMARY LAW OF 1972.  THE INDIVIDUAL CASES WERE CONSOLIDATED,
AND A STATUTORY THREE-JUDGE DISTRICT COURT WAS CONVENED.  FOLLOWING A
TRIAL, THE DISTRICT COURT DENIED ALL RELIEF AFTER HOLDING THAT, IN
THEIR TOTALITY, THE CHALLENGED PROVISIONS SERVED A COMPELLING STATE
INTEREST AND DID NOT SUFFOCATE THE ELECTION PROCESS.  RAZA UNIDA PARTY
V. BULLOCK, 349 F. SUPP. 1272 (WD TEX. 1972).  HAINSWORTH, APPELLANT IN
NO. 72-942, WAS ALSO SUBSEQUENTLY DENIED RELIEF ON SIMILAR GROUNDS. 
TWO SEPARATE APPEALS WERE TAKEN, AND WE NOTED PROBABLE JURISDICTION. 
410 U.S. 965.  WE AFFIRM THE JUDGMENT OF THE DISTRICT COURT IN NO. 72 -
942, AND NO. 72 - 887, EXCEPT AS THE LATTER RELATES TO THE SOCIALIST
WORKERS PARTY AND TEXAS' ABSENTEE BALLOT PROVISIONS. 

        I 

THE STATE OF TEXAS HAS ESTABLISHED A DETAILED STATUTORY SCHEME FOR
REGULATING THE CONDUCT OF POLITICAL PARTIES AS IT RELATES TO QUALIFYING
FOR PARTICIPATION IN THE ELECTORAL PROCESS.  UNDER THE LAWS CHALLENGED
IN THIS CASE, FOUR METHODS ARE PROVIDED FOR NOMINATING CANDIDATES TO
THE BALLOT FOR THE GENERAL ELECTION.  /3/ 

CANDIDATES OF POLITICAL PARTIES WHOSE GUBERNATORIAL CANDIDATE POLLED
MORE THAN 200,000 VOTES IN THE LAST GENERAL ELECTION MAY BE NOMINATED
BY PRIMARY ELECTION ONLY, AND THE NOMINEES OF THESE PARTIES
AUTOMATICALLY APPEAR ON THE BALLOT.  TEX. ELECTION CODE, ART. 13.02
(1967).  /4/  TEXAS HOLDS A STATEWIDE PRIMARY FOR THESE MAJOR PARTIES
ON THE FIRST SATURDAY IN MAY, WITH A RUNOFF PRIMARY THE FIRST SATURDAY
IN JUNE, SHOULD NO CANDIDATE GARNER A MAJORITY.  ID., ART. 13.03
(1967). 

CANDIDATES OF PARTIES WHOSE CANDIDATE POLLED LESS THAN 200,000, BUT
MORE THAN 2%, OF THE TOTAL VOTE CAST FOR GOVERNOR IN THE LAST GENERAL
ELECTION MAY BE NOMINATED AND THEREBY QUALIFY FOR THE GENERAL ELECTION
BALLOT BY PRIMARY ELECTION OR NOMINATING CONVENTIONS.  TEX. ELECTION
CODE, ART. 13.45 (1)(SUPP.  1973).  /5/  THE NOMINATING CONVENTIONS ARE
HELD SEQUENTIALLY, WITH THE PRECINCT CONVENTION ON THE SAME DATE AS THE
STATEWIDE PRIMARIES FOR THE MAJOR PARTIES (THE FIRST SATURDAY IN MAY),
THE COUNTY CONVENTIONS ON THE SECOND SATURDAY, AND THE STATE CONVENTION
ON THE SECOND SATURDAY IN JUNE.  TEX. ELECTION CODE, ART. 13.47 (SUPP.
1974); ART. 13.48 (1967). 

BECAUSE THEIR CANDIDATES POLLED LESS THAN 2% OF THE TOTAL
GUBERNATORIAL VOTE IN THE PRECEDING GENERAL ELECTION OR THEY DID NOT
NOMINATE A CANDIDATE FOR GOVERNOR, THE POLITICAL PARTIES IN THIS
LITIGATION WERE REQUIRED TO PURSUE THE THIRD METHOD FOR BALLOT
QUALIFICATION: PRECINCT NOMINATING CONVENTIONS AND IF THE REQUIRED
SUPPORT WAS NOT EVIDENCED AT THE CONVENTIONS, THE CIRCULATION OF
PETITIONS FOR SIGNATURES.  TEX. ELECTION CODE, ART. 13.45 (2) (SUPP.
1973).  /6/  HC#774 

FINALLY, UNAFFILIATED NONPARTISAN OR INDEPENDENT CANDIDATES SUCH AS
DUNN AND HAINSWORTH COULD QUALIFY BY FILING WITHIN A FIXED PERIOD A
WRITTEN APPLICATION OR PETITION SIGNED BY A SPECIFIED PERCENTAGE OF THE
VOTE CAST FOR GOVERNOR IN THE RELEVANT ELECTORAL DISTRICT IN THE LAST
GENERAL ELECTION.  TEX. ELECTION CODE, ARTS. 13.50, 13.51 (1967).  /7/

        II 

WE CONSIDER FIRST THE APPEALS OF THE POLITICAL PARTIES AND THEIR
SUPPORTERS.  ARTICLE 13.45 (2) (SUPP. 1973) OF THE TEXAS ELECTION CODE,
THE VALIDITY OF WHICH IS AT ISSUE HERE, REQUIRES THAT THE POLITICAL
PARTIES TO WHICH IT APPLIES NOMINATE CANDIDATES THROUGH THE PROCESS OF
PRECINCT, COUNTY, AND STATE CONVENTIONS.  THE PARTY MUST ALSO EVIDENCE
SUPPORT BY PERSONS NUMBERING AT LEAST 1% OF THE TOTAL VOTE CAST FOR
GOVERNOR AT THE LAST PRECEDING GENERAL ELECTION.  IN 1972, THIS NUMBER
WAS APPROXIAMETLY 22,000 ELECTORS.  TWO OPPORTUNITIES ARE OFFERED TO
SATISFY THE 1% SIGNATURE REQUIREMENT.  AT THE STATUTORILY MANDATED
PRECINCT NOMINATING CONVENTIONS, HELD ON THE FIRST SATURDAY IN MAY AND
THE SAME DAY AS THE MAJOR PARTY PRIMARY, THE PARTY MSUT PREPARE A LIST
OF ALL PARTICIPANTS, WHO MUST BE QUALIFIED VOTERS, ALONG WITH OTHER
PERTINENT INFORMATION.  THE LIST IS TO BE FORWARDED TO THE SECRETARY OF
STATE WITHIN 20 DAYS AFTER THE CONVENTION.  IF IT REVEALS THE NECESSARY
SUPPORT AND IT THE PARTY HAS SATISFIED THE OTHER STATUTORY REQUIREMENTS
IMPOSED UPON ALL POLITICAL PARTIES, THE SECRETARY OF STATE WILL CERTIFY
THAT THE PARTY IS ENTITLED TO BE PLACED ON THE GENERAL ELECTION
BALLOT. 

SHOULD THE PARTY NOT OBTAIN THE REQUISITE 1% CONVENTION
PARTICIPATION, SUPPLEMENTAL PETITIONS MAY BE CIRCULATED FOR SIGNATURE. 
WHEN THESE ARE SIGNED BY A SUFFICIENT NUMBER OF QUALIFIED VOTERS IN
ADDITION TO THE CONVENTION LISTS TO MAKE A COMBINED TOTAL OF THE
REQUISITE 1%, THE PARTY QUALIFIES FOR THE BALLOT.  APPROXIAMETLY 55
DAYS AFTER THE GENERAL PRIMARY ELECTION IN MAY ARE ALLOTED FOR THE
SUPPLEMENTATION PROCESS.  A VOTER WHO HAS ALREADY PARTICIPATED IN ANY
OTHER PARTY'S PRIMARY ELECTION OR NOMINATING PROCESS IS INELIGIBLE TO
SIGN THE PETITION.  FURTHERMORE, EACH SIGNATORY MUST BE ADMINISTERED
AND SIGN AN OATH THAT HE IS A QUALIFIED VOTER AND HAS NOT PARTICIPATED
IN ANY OTHER PARTY'S NOMINATING OR QUALIFICATION PROCEEDINGS.  THE OATH
MUST ALSO BE NOTARIZED. 

THE AMERICAN PARTY OF TEXAS WAS ABLE TO SECURE ONLY 2,732 SIGNATURES
AT ITS PRECINCT CONVENTIONS IN MAY 1972.  BY THE DEADLINE FOR FILING
THE PRECINCT LISTS AND SUPPLEMENTAL PETITIONS, THE TOTAL HAD RISEN TO
7,828, FAR SHORT OF THE OVER 22,000 REQUIRED SIGNATURES.  BRIEF FOR
AMERICAN PARTY OF TEXAS 2 - 3.  /8/  THE TEXAS NEW PARTY APPARENTLY
MADE NO EFFORT TO COMPLY WITH THE 1% REQUIREMENT.  /9/  TWO RELATIVELY
SMALL PARTIES, HOWEVER, WHICH WERE ALSO PLAINTIFFS IN THIS LITIGATION,
LA RAZA UNIDA PARTY AND THE SOCIALIST WORKERS PARTY, COMPLIED WITH THE
QUALIFICATION PROVISIONS OR ART. 13.45 (2) (SUPP. 1973) AND WERE PLACED
ON THE GENERAL ELECTION BALLOT. 

THE PARTY APPELLANTS CHALLENGE VARIOUS ASPECTS OF THE TEXAS BALLOT
QUALIFICATION SYSTEM AS THEY INTERACT WITH EACH OTHER: THE 1% SUPPORT
REQUIREMENT WITH ITS PRECINCT CONVENTIONS AND PETITION APPARATUS, THE
PREPRIMARY BAN ON PETITION CIRCULATION, THE DISQUALIFICATION FROM
SIGNING OF THOSE VOTERS PARTICIPATING IN ANOTHER PARTY'S NOMINATING
PROCESS, THE 55-DAY LIMITATION ON SECURING SIGNATURES, AND THE
NOTARIZATION REQUIREMENT.  /10/  THEY ASSERT THAT THESE PRECONDITIONS
FOR ACCESS TO THE GENERAL ELECTION BALLOT ARE IMPERMISSIBLE BURDENS ON
RIGHTS SECURED BY THE FIRST AND FOURTEENTH AMENDMENTS AND VIOLATE THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AS INVIDIOUS
DISCRIMINATIONS AGAINST NEW OR SMALL POLITICAL PARTIES. 

WE HAVE CONCLUDED THAT THESE CLAIMS ARE WITHOUT MERIT.  WE AGREE
WITH THE DISTRICT COURT THAT WHETHER THE QUALIFICATIONS FOR BALLOT
POSITION ARE VIEWED AS SUBSTANTIAL BURDENS ON THE RIGHT TO ASSOCIATE OR
AS DISCRIMINATIONS AGAINST PARTIES NOT POLLING 2% OF THE LAST ELECTION
VOTE, THEIR VALIDITY DEPENDS UPON WHETHER THEY ARE NECESSARY TO FURTHER
COMPELLING STATE INTERESTS, STORER V. BROWN, ANTE, AT 729 - 733.  /11/
BUT WE ALSO AGREE WITH THE DISTRICT COURT THAT THE FOREGOING
LIMITATIONS, WHETHER CONSIDERED ALONE OR IN COMBINATION, ARE
CONSTITUTIONALLY VALID MEASURES, REASONABLY TAKEN IN PURSUIT OF VITAL
STATE OBJECTIVES THAT CANNOT BE SERVED EQUALLY WELL IN SIGNIFICANTLY
LESS BURDENSOME WAYS. 

IT IS TOO PLAIN FOR ARGUMENT, AND IT IS NOT CONTESTED HERE, THAT THE
STATE MAY LIMIT EACH POLITICAL PARTY TO ONE CANDIDATE FOR EACH OFFICE
ON THE BALLOT AND MAY INSIST THAT INTRAPARTY COMPETITION BE SETTLED
BEFORE THE GENERAL ELECTION BY PRIMARY ELECTION OR BY PARTY
CONVENTION.  SEE STORER V. BROWN, ANTE, AT 733 - 736.  NEITHER CAN WE
TAKE SERIOUSLY THE SUGGESTION MADE HERE THAT THE STATE HAS INVIDIOUSLY
DISCRIMINATED AGAINST THE SMALLER PARTIES BY INSISTING THAT THEIR
NOMINATIONS BE BY CONVENTION, RATHER THAN BY PRIMARY ELECTION.  WE HAVE
CONSIDERED THE ARGUMENTS PRESENTED, BUT WE ARE WHOLLY UNPERSUADED BY
THE RECORD BEFORE US THAT THE CONVENTION PROCESS IN INVIDIOUSLY MORE
BURDENSOME THAN THE PRIMARY ELECTION, FOLLOWED BY A RUNOFF ELECTION
WHERE NECESSARY, PARTICULARLY WHERE THE MAJOR PARTY, IN ADDITION TO THE
ELECTIONS, MUST ALSO HOLD ITS PRECINCT, COUNTY, AND STATE CONVENTIONS
TO ADOPT AND PROMULGATE PARTY PLATFORMS AND TO CONDUCT OTHER BUSINESS. 
/12/  IF CLAIMING AN EQUAL PROTECTION VIOLATION, THE APPELLANTS' BURDEN
WAS TO DEMONSTRATE IN THE FIRST INSTANCE A DISCRIMINATION AGAINST THEM
OF SOME SUBSTANCE.  "STATUTES CREATE MANY CLASSIFICATIONS WHICH DO NOT
DENY EQUAL PROTECTION; IT IS ONLY 'INVIDIOUS DISCRIMINATION'  WHICH
OFFENDS THE CONSTITUTION."  FERGUSON V. SKRUPA, 372 U.S. 726, 732
(1963) (FOOTENOTE OMITTED).  APPELLANTS' BURDEN IS NOT SATISFIED BY
MERE ASSERTIONS THAT SMALL PARTIES MUST PROCEED BY CONVENTION WHEN
MAJOR PARTIES ARE PERMITTED TO CHOOSE THEIR CANDIDATES BY PRIMARY
ELECTION.  THE PROCEDURES ARE DIFFERENT, BUT THE EQUAL PROTECTION
CLAUSE DOES NOT NECESSARILY FORBID THE ONE IN PREFERENCE TO THE OTHER. 
/13/ 

TO OBTAIN BALLOT POSITION, THE PARTIES SUBJECT TO ART. 13.45 (2)
(SUPP. 1973), AS WERE THESE APPELANTS, WERE ALSO REQUIRED TO
DEMONSTRATE SUPPORT FROM ELECTORS EQUAL IN NUMBER TO 1% OF THE VOTE FOR
GOVERNOR AT THE LAST ELECTION.  APPELLANTS APPARENTLY QUESTION WHETHER
THEY MUST FILE ANY LIST OF SUPPORTERS WHERE THE MAJOR PARTIES ARE
REQUIRED TO FILE NONE.  BUT WE THINK THAT THE STATE'S ADMITTEDLY VITAL
INTERESTS /14/  ARE SUFFICIENTLY IMPLICATED TO INSIST THAT POLITICAL
PARTIES APPEARING ON THE GENERAL BALLOT DEMONSTRATE A SIGNIFICANT,
MEASURABLE QUANTUM OF COMMUNITY SUPPORT.  SO LONG AS THE LARGER PARTIES
MUST DEMONSTRATE MAJOR SUPPORT AMONG THE ELECTORATE AT THE LAST
ELECTION, WHEREAS THE SMALLER PARTIES NEED NOT, THE LATTER, WITHOUT
BEING INVIDIOUSLY TREATED, MAY BE REQUIRED TO ESTABLISH THEIR POSITION
IN SOME OTHER MANNER.  OF COURSE, WHAT IS DEMANDED MAY NOT BE SO
EXCESSIVE OR IMPRACTICAL AS TO BE IN REALITY A MERE DEVICE TO ALWAYS,
OR ALMOST ALWAYS, EXCLUDE PARTIES WITH SIGNIFICANT SUPPORT FROM THE
BALLOT.  THE CONSTITUTION REQUIRES THAT ACCESS TO THE ELECTORATE BE
REAL, NOT "MERELY THEORETICAL."  JENNESS V. FORTSON, 403 U.S. 431, 439
(1971). 

THE DISTRICT COURT RECOGNIZED THAT ANY FIXED PERCENTAGE REQUIREMENT
IS NECESSARILY ARBITRARY, BUT WE AGREE WITH IT THAT THE REQUIRED
MEASURE OF SUPPORT -- 1% OF THE VOTE FOR GOVERNOR AT THE LAST ELECTION
AND IN THIS INSTANCE 22,000 SIGNATURES -- FALLS WITHIN THE OUTER
BOUNDARIES OF SUPPORT THE STATE MAY REQUIRE BEFORE ACCORDING POLITICAL
PARTIES BALLOT POSITION.  /15/  TO DEMONSTRATE THIS DEGREE OF SUPPORT
DOES NOT APPEAR EITHER IMPOSSIBLE OR IMPRACTICAL, AND WE ARE UNWILLING
TO ASSUME THAT THE REQUIREMENT IMPOSES A SUBSTANTIALLY GREATER HARDSHIP
ON MINORITY PARTY ACCESS TO THE BALLOT.  /16/ TWO POLITICAL PARTIES
WHICH WERE PLAINTIFFS IN THIS VERY LITIGATION QUALIFIED FOR THE BALLOT
UNDER ART. 13.45 (2) (SUPP. 1973IN THE 1972 ELECTION.  IT IS NOT,
THEREFORE, IMMEDIATELY OBVIOUS THAT THE ARTICLE, ON ITS FACE OR AS IT
OPERATES IN PRACTICE, IMPOSES INSURMOUNTABLE OBSTACLES TO FLEDGLING
POLITICAL PARTY EFFORTS TO GENERATE SUPPORT AMONG THE ELECTORATE AND TO
EVIDENCE THAT SUPPORT WITHIN THE TIME ALLOWED.     THE ASPIRING PARTY
IS FREE TO CAMPAIGN BEFORE THE PRIMARY AND TO COMPETE WITH THE MAJOR
PARTIES FOR VOTER SUPPORT ON PRIMARY ELECTION AND PRECINCT CONVENTION
DAY.  ANY VOTER, HOWEVER REGISTERED, MAY ATTEND THE NEW PARTY'S
PRECINCT CONVENTION AND BE COUNTED TOWARD THE NECECSSARY 1% LEVEL. 
UNLIKE THE INDEPENDENT CANDIDATE UNDER TEXAS LAW, SEE INFRA, AT 788,
AND HIS CALIFORNIA COUNTERPART, SEE STORER V. BROWN, ANTE, AT 738, A
PARTY QUALIFYING UNDER ART. 13.45 (2) (SUPP. 1973) NEED NOT WAIT UNTIL
THE PRIMARY TO CRYSTALLIZE ITS SUPPORT AMONG THE VOTERS.  IT IS
ENTITLED TO COMPETE BEFORE THE PRIMARY ELECTION AND TO COUNT NOSES AT
ITS CONVENTION ON PRIMARY DAY, JUST AS THE MAJOR PARTIES AND THEIR
CANDIDATES COUNT THEIR PRIMARY VOTES.  FURTHERMORE, SHOULD THEY FALL
SHORT OF THE MAGIC FIGURE, THEY HAVE ANOTHER CHANCE -- THEY MAY MAKE UP
THE SHORTAGE AND WIN BALLOT POSITION BY CIRCULATING PETITIONS FOR
SIGNATURE FOR A PERIOD OF 55 DAYS BEGINNING AFTER THE PRIMARY AND
ENDING 120 DAYS PRIOR TO THE GENERAL ELECTION. 

IT IS TRUE THAT AT THIS JUNCTURE THE POOL OF POSSIBLE SUPPORTERS IS
SEVERELY REDUCED, FOR ANYONE VOTING IN THE JUST-COMPLETED PRIMARY IS NO
LONGER QUALIFIED TO SIGN THE PETITION REQUESTING THAT THE PETITIONING
PARTY AND ITS NOMINEES FOR PUBLIC OFFICE BE LISTED ON THE BALLOT. 
APPELLANTS ATTACK THIS RESTRICTION, BUT, AS SUCH, IT IS NOTHING MORE
THAN A PROHIBITION AGAINST ANY ELECTOR CASTING MORE THAN ONE VOTE IN
THE PROCESS OF NOMINATING CANDIDATES FOR A PARTICULAR OFFICE.  ELECTORS
MAY VOTE IN ONLY ONE PARTY PRIMARY; AND IT IS NOT APPARENT TO US WHY
THE NEW OR SMALLER PARTY SEEKING VOTER SUPPORT SHOULD BE ENTITLED TO
GET SIGNATURES OF THOSE WHO HAVE ALREADY VOTED IN ANOTHER NOMINATING
PRIMARY AND HAVE ALREADY DEMONSTRATED THEIR PREFERENCE FOR OTHER
CANDIDATES FOR THE SAME OFFICE THE PETITIONING PARTY SEEKS TO FILL.  WE
THINK THE THREE-JUDGE DISTRICT COURT IN JACKSON V. OGILVIE, 325 F.
SUPP. 864, 867 (ND ILL.), AFF'D, 403 U.S. 925 (1971), APTLY
CHARACTERIZED THE SITUATION IN UPHOLDING A STATE ELECTION LAW PROVISION
PREVENTING A VOTER FROM BOTH VOTING IN THE PRIMARY AND SIGNING AN
INDEPENDENT ELECTION PETITION: 

"THUS, THE STATE'S SCHEME ATTEMPTS TO ENSURE THAT EACH QUALIFIED
ELECTOR MAY IN FACT EXERCISE THE POLITICAL FRANCHISE.  HE MAY EXERCISE
IT EITHER BY VOTE OR BY SIGNING A NOMINATING PETITION.  HE CANNOT HAVE
IT BOTH WAYS.  /17/ 

WE HAVE PREVIOUSLY HELD THAT TO PROTECT THE INTEGRITY OF PARTY
PRIMARY ELECTIONS, STATES MAY ESTABLISH WAITING PERIODS BEFORE VOTERS
THEMSELVES MAY BE PERMITTED TO CHANGE THEIR REGISTRATION AND
PARTICIPATE IN ANOTHER PARTY'S PRIMARY.  ROSARIO V. ROCKEFELLER, 410
U.S. 752 (1973).  CF. KUSPER V. PONTIKES, 414 U.S. 51 (1973). 
LIKEWISE, IT SEEMS TO US THAT THE STATE MAY DETERMINE THAT IT IS
ESSENTIAL TO THE INTEGRITY OF THE NOMINATING PROCESS TO CONFINE VOTERS
TO SUPPORTING ONE PARTY AND ITS CANDIDATES IN THE COURSE OF THE SAME
NOMINATING PROCESS.  AT LEAST WHERE, AS HERE, THE POLITICAL PARTIES HAD
ACCESS TO THE ENTIRE ELECTORATE AND AN OPPORTUNITY TO COMMIT VOTERS ON
PRIMARY DAY, WE SEE NOTHING INVIDIOUS IN DISQUALIFYING THOSE WHO HAVE
VOTED AT A PARTY PRIMARY FROM SIGNING PETITIONS FOR ANOTHER PARTY
SEEKING BALLOT POSITION FOR ITS CANDIDATES FOR THE SAME OFFICES. 

NEITHER DO WE CONSIDER THAT THE 55 DAYS IS AN UNDULY SHORT TIME FOR
CIRCULATING SUPPLEMENTAL PETITIONS.  GIVEN THAT TIME SPAN, SIGNATURES
WOULD HAVE TO BE OBTAINED ONLY AT THE RATE OF 400 PER DAY TO SECURE THE
ENTIRE 22,000, OR FOUR SIGNATURES PER DAY FOR EACH 100 CANVASSERS--ONLY
TWO EACH PER DAY IF HALF THE 22,000 WERE OBTAINED AT THE PRECINCT
CONVENTIONS ON PRIMARY DAY.  A PETITION PROCEDURE MAY NOT ALWAYS BE A
COMPLETLY PRECISE OR SATISFACTORY BAROMETER OF ACTUAL COMMUNITY SUPPORT
FOR A POLITICAL PARTY, BUT THE CONSTITUTION HAS NEVER REQUIRED THE
STATES TO DO THE IMPOSSIBLE.  DUNN V. BLUMSTEIN, 405 U.S. 330, 360
(1972).  HARD WORK AND SACRIFICE BY DEDICATED VOLUNTEERS ARE THE
LIFEBLOOD OF ANY POLITICAL ORGANIZATION.  CONSTITUTIONAL ADJUDICATION
AND COMMON SENSE ARE NOT AT WAR WITH EACH OTHER, AND WE ARE THUS
UNIMPRESSED WITH ARGUMENTS THAT BURDENS LIKE THOSE IMPOSED BY TEXAS ARE
TOO ONEROUS, ESPECIALLY WHERE TWO OF THE ORIGINAL PARTY PLAINTIFFS
THEMSELVES SATISFIED THESE REQUIREMENTS.  /18/ 

FINALLY, THERE REMAINS ANOTHER FACET TO THE SIGNATURE REQUIREMENT. 
ARTICLE 13.45 (2) (SUPP. 1973) PROVIDES THAT ALL SIGNATURES EVIDENCING
SUPPORT FOR THE PARTY, WHETHER ORIGINATING AT THE PRECINCT CONVENTIONS
OR WITH SUPPLEMENTAL PETITIONS CIRCULATED AFTER PRIMARY DAY, MUST BE
NOTARIZED.  THE PARTIES OBJECT TO THIS REQUIREMENT, BUT MAKE LITTLE OR
NO EFFORT TO DEMONSTRATE ITS IMPRACTICABILITY OR THAT IT IS UNUSUALLY
BURDENSOME.  THE DISTRICT COURT DETERMINED THAT IT WAS NOT, INDICATING
THAT ONE OF THE PLAINTIFF POLITICAL PARTIES HAD CONCEDED AS MUCH.  THE
DISTRICT COURT ALSO FOUND NO ALTERNATIVE IF THE STATE WAS TO BE ABLE TO
ENFORCE ITS LAWS TO PREVENT VOTERS FROM CROSSING OVER OR FROM VOTING
TWICE FOR THE SAME OFFICE.  ON THE RECORD BEFORE US, WE ARE IN NO
POSITION TO DISAGREE. 

IN SUM, TEXAS "IN NO WAY FREEZE THE STATUS QUO, BUT IMPLICITLY
RECOGNIZES THE POTENTIAL FLUIDITY OF AMERICAN POLITICAL LIFE."  JENNESS
V. FORTSON, 403 U.S., AT 439.  IT AFFORDS MINORITY POLITICAL PARTIES A
REAL AND ESSENTIALLY EQUAL OPPORTUNITY FOR BALLOT QUALIFICATION. 
NEITHER THE FIRST AND FOURTEENTH AMENDMENTS NOT THE EQUAL PROCTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES ANY MORE. 

        III 

APPELLANTS DUNN AND HAINSWORTH CHALLENGED ARTS. 13.50 AND 13.51,
WHICH GOVERN THE ELIGIBILITY OF NONPARTISAN OR INDEPENDENT CANDIDATES
FOR GENERAL ELECTION BALLOT POSITION.  REGARDLESS OF THE OFFICE SOUGHT,
AN INDEPENDENT CANDIDATE MUST FILE, WITHIN 30 DAYS AFTER THE SECOND OR
RUNOFF PRIMARY ELECTION, A WRITTEN PETITION SIGNED BY A SPECIFIED
NUMBER OF QUALIFIED VOTERS.  THE SIGNATURES REQUIRED VARY WITH THE
OFFICE SOUGHT.  DUNN WAS REQUIRED TO OBTAIN EQUALING 3% OF THE 1970
VOTE FOR GOVERNOR IN THE CONGRESSIONAL DISTRICT IN WHICH HE DESIRED TO
RUN; HAINSWORTH, A CANDIDATE FOR THE STATE HOUSE OF REPRESENTATIVES,
NEEDED 5% OF THE SAME VOTE IN HIS LOCALITY.  ARTICLE 13.50, HOWEVER,
STATES THAT IN NO EVENT WOULD CANDIDATES FOR ANY "DISTRICT OFFICE,"  AS
DUNN AND HAINSWORTH WERE, /19/  BE REQUIRED TO FILE MORE THAT 500
SIGNATURES.  THE LAW ALSO PROVIDES THAT A VOTER MAY NOT SIGN MORE THAN
ONE PETITION FOR THE SAME OFFICE AND IS BARRED FROM SIGNING ANY
PETITIONS IF HE VOTED AT EITHER PRIMARY ELECTION OF ANY PARTY AT WHICH
A NOMINATION WAS MADE FOR THAT OFFICE.  EACH VOTER SIGNING AN
INDEPENDENT CANDIDATE'S PETITION MUST ALSO SUBSCRIBE TO A NOTARIZED
OATH DECLARING HIS NONPARTICIPATION IN ANY POLITICAL PARTY'S NOMINATING
PROCESS.  ART. 13.51. 

DUNN AND HAINSWORTH CONTEND THAT THE FIRST AND FOURTEENTH AMENDMENTS
INCLUDING THE EQUAL PROTECTION CLAUSE FORBID THE STATE FROM IMPOSING
UNDULY BURDENSOME CONDITIONS ON THEIR OPPORTUNITY TO APPEAR ON THE
GENERAL ELECTION BALLOT.  THE PRINCIPLE IS UNEXCEPTIONABLE, CF. STORER
V. BROWN, ANTE, 738, 739, 740, 746; BUT REQUIRING INDEPENDENT
CANDIDATES TO EVIDENCE A "SIGNIFICANT MODICUM OF SUPPORT"  /20/  IS NOT
UNCONSTITUTIONAL.  DEMANDING SIGNATURES EQUAL IN NUMBER TO 3 OR 5% OF
THE VOTE IN THE LAST ELECTION IS NOT INVALID ON ITS FACE, SEE JENNESS
V. FORTSON, SUPRA, AND WITH A 500-SIGNATURE LIMIT IN ANY EVENT, THE
ARGUMENT THAT THE STATUTE IS UNDULY BURDENSOME APPROACHES THE
FRIVOLOUS. 

IT IS TRUE THAT THOSE WHO HAVE VOTED IN THE PARTY PRIMARIES ARE
INELIGIBLE TO SIGN AN INDEPENDENT CANDIDATE'S PETITION.  IN THEORY AT
LEAST, THE CONSEQUENCE OF THIS RESTRICTION IS THAT THE POOL OF ELIGIBLE
SIGNERS OF AN INDEPENDENT CANDIDATE'S PETITION, CALCULATED BY
SUBTRACTING FROM ALL ELIGIBLE VOTERS IN THE 1972 PRIMARIES ALL THOSE
WHO VOTED IN THE PRIMARY AND THEN ADDING NEW REGISTRATIONS SINCE THE
CLOSING OF THE REGISTRATION BOOKS, COULD BE REDUCED NEARLY TO ZERO OR
TO SO FEW QUALIFIED ELECTORS THAT SECURING EVEN 500 OF THEM WOULD BE AN
IMPRACTICAL UNDERTAKING.  BUT THIS LIKELIHOOD SEEMS REMOTE, TO SAY THE
LEAST, PARTICULARLY WHEN IT WILL BE VERY LIKELY THAT A SUBSTANTIAL
PERCENTAGE, PERHAPS 25%, OF THE TOTAL REGISTERED VOTERS WILL NOT TURN
PUT FOR THE PRIMARY AND WILL THUS BE ELIGIBLE TO SIGN PETITION, /21/
ALONG WITH ALL NEW REGISTRANTS SINCE THE CLOSING OF THE REGISTRATION
BOOKS PRIOR TO THE PRIMARY.  IN ANY EVENT, NOTHING IN THE RECORD BEFORE
US INDICATES WHAT THE TOTAL VOTE IN THE LAST ELECTION WAS IN THE
DISTRICTS AT ISSUE HERE, NOTHING SHOWING WHAT THE PRIMARY VOTE WOULD BE
OR WAS IN 1972, AND NOTHING SUGGESTING WHAT THE SIZE OF THE POOL OF
ELIGIBLE SIGNERS MIGHT BE.  AS THE DISTRICT COURT NOTED, THE
INDEPENDENT CANDIDATES PRESENTED "ABSOLUTELY NO FACTUAL BASIS IN
SUPPORT OF THEIR CLAIMS" THAT ART. 13.50 IMPOSED UNDULY BURDENSOME
REQUIREMENTS.  349 F. SUPP., AT 1284.  DUNN AND HAINSWORTH RELIED
SOLELY ON THE MINIMAL 500-SIGNATURE REQUIREMENT.  THIS WAS SIMPLY A
FAILURE OF PROOF, AND FOR THAT REASON WE MUST AFFIRM THE DISTRICT
COURT'S JUDGMENT WITH RESPECT TO THESE APPELLANTS.  /22/

        IV 

IN RESPONSE TO THIS COURT'S DECISION IN BULLOCK V. CARTER, 405 U.S.
134 (1972), INVALIDATING THE TEXAS FILING-FEE REQUIREMENTS, THE STATE
LEGISLATURE ENACTED AS A TEMPORARY MEASURE THE MCKOOL-STROUD PRIMARY
FINANCING LAW OF 1972.  TEX. ELECTION CODE, ART. 13.08C-1.  /23/  THE
STATUTE GENERALLY PROVIDED FOR PUBLIC FINANCING FROM STATE REVENUES FOR
PRIMARY ELECTIONS OF ONLY THOSE POLITICAL PARTIES CASTING 200,000 OR
MORE VOTES FOR GOVERNOR IN THE LAST PRECEDING GENERAL ELECTION.  ON ITS
FACE, THEREFORE, THE LAW PRECLUDED ANY PAYMENT OF STATE FUNDS TO MINOR
POLITICAL PARTIES TO REIMBURSE THEM FOR THE COSTS INCURRED IN
CONDUCTING THEIR NOMINATING AND BALLOT QUALIFICATION PROCESSES.  /24/
IN ALL, OVER $3,000,000 WAS APPROPRIATED BY THE STATE LEGISLATURE TO
THE TWO MAJOR POLITICAL PARTIES TO DEFRAY THEIR EXPENSES IN CONNECTION
WITH THE 1972 PRIMARY ELECTIONS.  BRIEF FOR AMERICAN PARTY OF TEXAS 19
20, N. 41. 

THE DISTRICT COURT REJECTED ALL CONSITITUIONAL CHALLENGES TO THE
LAW, NOTING THAT THE STATUTE WAS DESIGNED TO COMPENSATE FOR PRIMARY
ELECTION EXPENSES AND THAT "(THE CONVENTION AND PETITION PROCEDURE
AVAILABLE FOR SMALL OR NEW PARTIES CARRIES WITH IT NONE OF THE
EXPENSIVE ELECTION REQUIREMENTS BURDENING THOSE PARTIES REQUIRED TO
CONDUCT PRIMARIES."  349 F. SUPP., AT 1285.  THE DISTRICT COURT ALSO
EMPHASIZED THAT IN RESPONSE TO THE STATE'S ARGUMENT IN BULLOCK V.
CARTER THAT STATE FINANCING OF PRIMARY ELECTIONS WOULD NECESSITATE
DEFINING THOSE POLITICAL PARTIES ENTITLED TO FINANCIAL AID AND WOULD
INVITE NEW CHARGES OF DISCRIMINATION, THIS COURT POINTED OUT THAT UNDER
TEXAS LAW ONLY THOSE PARTIES WHOSE GUBERNATORIAL CANDIDATES RECEIVED
MORE THAN 200,000 VOTES WERE REQUIRED TO CONDUCT PRIMARIES AND SAID
"(WE ARE NOT PERSUADED THAT TEXAS WOULD BE FACED WITH AN IMPOSSIBLE
TASK IN DISTINGUISHING BETWEEN POLITICAL PARTIES FOR THE PURPOSE OF
FINANCING PRIMARIES."  405 U.S., AT 147.  /25/ 

WE AFFIRM THE JUDGMENT OF THE DISTRICT COURT.  ALL POLITICAL PARTIES
WHO DESIRE BALLOT POSITION, INCLUDING THE MAJOR PARTIES, MUST HOLD
PRECINCT, COUNTY, AND STATE CONVENTIONS.  SEE E. G., TEX. ELECTION
CODE, ARTS. 13.33, 13.34, 13.35, 13.38, 13.45, 13.45A, 13.47 (1967,
SUPP. 1973, SUPP. 1974).  THE STATE REIMBURSES POLITICAL PARTIES FOR
NONE OF THE EXPENSES IN CARRYING OUT THESE PROCEDURES.  NEW PARTIES AND
THOSE WITH LESS THAN 2% OF THE VOTE IN THE LAST ELECTION ARE PERMITTED
TO NOMINATE THEIR CANDIDATES FOR OFFICE IN THE COURSE OF THEIR
CONVENTION PROCEEDINGS.  THE MAJOR PARTIES MAY NOT DO SO AND MUST
CONDUCT SEPARATE PRIMARY ELECTIONS.  AS WE UNDERSTAND IT, IT IS THE
EXPENSE OF THESE PRIMARIES THAT THE STATE DEFRAYS IN WHOLE OR PART.  AS
FAR AS THE RECORD BEFORE US SHOWS, NONE OF THESE REIMBURSED PRIMARY
EXPENSES ARE INCURRED BY MINORITY PARTIES NOT REQUIRED TO HOLD
PRIMARIES.  THEY MUST UNDERGO EXPENSE, TO BE SURE, IN HOLDING THEIR
CONVENTIONS AND ACCUMULATING THE NECESSARY SIGNATURES TO QUALIFY FOR
THE BALLOT, BUT WE ARE NOT PERSUADED THAT THE STATE'S REFUSAL TO
REIMBURSE FOR THESE EXPENSES IS ANY DICRIMINATION AT ALL AGAINST THE
SMALLER PARTIES AND IF IT IS, THAT IT IS ALSO A DENIAL OF THE EQUAL
PROTECTION OF THE LAWS WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT. 
WE ARE UNCONVINCED, AT LEAST BASED UPON THE FACTS PRESENTLY AVAILABLE,
THAT THIS FINANCING LAW IS AN "EXCLUSIONARY MECHANISM" WHICH "TENDS TO
DENY SOME VOTERS THE OPPORTUNITY TO VOTE FOR A CANDIDATE OF THEIR
CHOOSING" OR THAT IT HAS "A REAL AND APPRECIABLE IMPACT ON THE EXERCISE
OF THE FRANCHISE."  BULLOCK V. CARTER, 405 U.S., AT 144. 

WE SHOULD ALSO POINT OUT THAT THE APPELLANT AMERICAN PARTY MOUNTS
THE MAJOR CHALLENGE TO THE PRIMARY FINANCING LAW.  THE PARTY, HOWEVER,
FAILED TO QUALIFY FOR THE GENERAL ELECTION BALLOT; AND WE CANNOT AGREE
THAT THE STATE, SIMPLY BECAUSE IT DEFRAYS THE EXPENSES OF PARTY PRIMARY
ELECTIONS, MUST ALSO FINANCE THE EFFORTS OF EVERY NASCENT POLITICAL
GROUP SEEKING TO ORGANIZE ITSELF AND UNSUCCESSFULLY ATTEMPTING TO WIN A
PLACE ON THE GENERAL ELECTION BALLOT. 

        V 

UNDER ART. 5.05 (SUPP. 1974) OTHERWISE QUALIFIED VOTERS IN TEXAS MAY
VOTE ABSENTEE IN A PRIMARY OR GENERAL ELECTION BY PERSONAL APPEARANCE
AT THE COUNTY CLERK'S OFFICE OR BY MAIL.  IT IS THE STATE'S PRACTICE,
HOWEVER, TO PRINT ON THE ABSENTEE BALLOT ONLY THE NAMES OF THE TWO
MAJOR, ESTABLISHED POLITICAL PARTIES, THE DEMOCRATS AND THE
REPUBLICANS.  RAZA UNIDA PARTY V. BULLOCK, 349 F. SUPP., AT 1283 -
1284. 

THE DISTRICT COURT SUSTAINED THE EXCLUSION OF MINORITY PARTIES FROM
THE ABSENTEE BALLOT, RELYING ON THE PRESUMPTION OF CONSTITUTIONALITY OF
STATE LAWS, MCDONALD V. BOARD OF ELECTION COMM'RS, 394 U.S. 802 (1969),
AND THE RATIONALITY OF NOT INCURRING THE EXPENSE OF PRINTING ABSENTEE
BALLOTS FOR PARTIES WITHOUT SUBSTANTIAL VOTER SUPPORT.  THE SOCIALIST
WORKERS PARTY, HOWEVER, SATISFIED THE STATUTORY REQUIREMENT FOR
DEMONSTRATING THE NECESSARY COMMUNITY SUPPORT NEEDED TO WIN GENERAL
BALLOT POSITION FOR ITS CANDIDATES, AND WITH RESPECT TO THIS APPELLANT,
THE UNAVAILABILITY OF THE ABSENTEE BALLOT IS OBVIOUSLY DISCRIMINATORY. 
THE STATE OFFERED NO JUSTIFICATION FOR THE DIFFERENCE IN TREATMENT IN
THE DISTRICT COURT, DID NOT BRIEF THE ISSUE HERE, AND HAD LITTLE TO SAY
IN ORAL ARGUMENT TO JUSTIFY THE DISCRIMINATION.     WE HAVE TWICE SINCE
MCDONALD V. BOARD OF ELECTION COMM'RS DEALT WITH ALLEGED
DISCRIMINATIONS IN THE AVAILABILITY OF THE ABSENTEE BALLOT, GOOSBY V.
OSSER, 409 U.S. 512 (1973); O'BRIEN V. SKINNER, 414 U.S. 524 (1974). 
FROM THE LATTER CASE, IT IS PLAIN THAT PERMITTING ABSENTEE VOTING BY
SOME CLASSES OF VOTERS AND DENYING PRIVILEGE TO OTHER CLASSES OF
OTHERWISE QUALIFIED VOTERS IN SIMILAR CIRCUMSTANCES, WITHOUT AFFORDING
A COMPARABLE ALTERNATIVE MEANS TO VOTE, IS AN ARBITRARY DISCRIMINATION
VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.  PLAINLY, THE DISTRICT COURT
IN THIS CASE EMPLOYED AN ERRONEOUS STANDARD IN JUDGING THE TEXAS
ABSENTEE VOTING LAW AS IT WAS APPLIED IN THIS CASE.  WE THEREFORE
VACATE THE JUDGMENT OF THE DISTRICT COURT IN THIS RESPECT AND REMAND
THE SOCIALIST WORKERS PARTY CASE TO THE DISTRICT COURT FOR FURTHER
CONSIDERATION IN LIGHT OF GOOSBY V. OSSER AND O'BRIEN V. SKINNER.  IN
ALL OTHER RESPECTS THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

              SO ORDERED. 

/1/  ALTHOUGH THE NOVEMBER 1972 ELECTION HAS BEEN COMPLETED AND THIS
COURT MAY NOT GRANT RETROSPECTIVE RELIEF THAT WOULD AFFECT THE OUTCOME,
THIS CASE IN NOT MOOT.  SEE ROSARIO V.ROCKEFELLER, 410 U.S. 752, 756
N.5 (1973); SEE ALSO STORER V. BROWN, ANTE, AT 737 N.8. 

/2/  THE DITRICT COURT DISMISSED THE COMPLAINTS OF TEXAS SOCIALIST
WORKERS PARTY AND ANOTHER MINORITY PARTY, LA RAZA UNIDA, INSOFAR AS
THEY CHALLENGED ART. 13.45 (2) (SUPP. 1973) OF THE ELECTION CODE,
BECAUSE THEY LACKED STANDING IN VIEW OF THEIR LATER CERTIFICATION BY
APPELLEE FOR A PLACE ON THE GENERAL BALLOT.  RAZA UNIDA PARTY V.
BULLOCK, 349 F. SUPP. 1272, 127L (WD TEX. 1972).  LA RAZA UNIDA HAS NOT
APPEALED AND THE SOCIALIST WORKERS PARTY, ALTHOUGH AN APPELLANT HERE,
DOES NOT APPEAR TO CHALLENGE THE DISTRICT COURT'S JUDGMENT THAT IT HAD
NO STANDING TO CHALLENGE ART. 13.45 (2).  THE DISTRICT COURT'S
DISMISSAL, HOWEVER, DID NOT GO BEYOND THE ATTACK ON ART. 13.45 (2).  IT
DOES NOT APPEAR THAT BALLOT QUALIFICATION WOULD AFFECT THE STANDING OF
THE SOCIALIST WORKERS PARTY TO CHALLENGE THE TEXAS PRIMARY FINANCING
LAW OR THE DENIAL OF ABSENTEE VOTING PRIVILEGES TO IT.  BOTH ISSUES
WERE PRESENTED IN THE JURISIDICTIONAL STATEMENT FILED BY THE PARTY AND
APPEAR AS MINOR THEMES IN THE PARTY'S BRIEF ON THE MERITS. 

/3/  TEXAS ALSO ALLOWS WRITE-IN VOTES IN MOST ELECTIONS, AND THEY
ARE COUNTED.  TEX. ELECTION CODE, ARTS. 6.05, 6.06 (SUPP. 1974). 

/4/  "ON PRIMARY ELECTION DAY IN 1952 AND EVERY TWO (2) YEARS
THEREAFTER, CANDIDATES FOR GOVERNOR AND FOR ALL OTHER STATE OFFICES TO
BE CHOSEN BY VOTE OF THE ENTIRE STATE, AND CANDIDATES FOR CONGRESS AND
ALL DISTRICT OFFICES TO BE CHOSEN BY THE VOTE OF ANY DISTRICT
COMPRISING MORT THAN ONE (1) COUNTY, TO BE NOMINATED BY EACH ORGANIZED
POLITICAL PARTY THAT CAST TWO HUNDRED THOUSAND (200,000) VOTES OR MORE
FOR GOVERNOR AT THE LAST GENERAL ELECTION, SHALL, TOGETHER WITH ALL
CANDIDATES FOR OFFICES TO BE FILLED BY THE VOTERS OF A COUNTY, OR OF A
PORTION OF A COUNTY, BE NOMINATED IN PRIMARY ELECTIONS BY THE QUALIFIED
VOTERS OF SUCH PARTY."  TEX. ELECTION CODE, ART. 13.02 (1967). 

WE DESCRIBE THE LAW AS IT EXISTED IN 1972.  WHILE THESE CASES WERE
PENDING IN THIS COURT, THE TEXAS LEGISLATURE AMENDED ART. 13.02 OF THE
ELECTION CODE TO THE EXTENT THAT THE MANDATORY PRIMARY ELECTION
REQUIREMENT, AND THE RESULTING AUTOMATIC GENERAL ELECTION BALLOT
POSITION, ARE NOW TRIGGERED ONLY WHEN AN ORGANIZED POLITICAL PARTY
CASTS 20% OR MORE OF THE VOTES CAST FOR GOVERNOR AT THE LAST GENERAL
ELECTION AND NOT THE PREVIOUS 200,000 VOTES.  AT ORAL ARGUMENT, COUNSEL
FOR APPELLANTS MAINTAINED THAT THE TEXAS LEGISLATURE RAISED THE
AUTOMATIC BALLOT QUALIFICATION FIGURE TO 20% AFTER THE LA RAZA UNIDA
PARTY GUBERNATORIAL CANDIDATE POLLED MORE THAN 2% OF THE TOTAL VOTE IN
THE 1972 GENERAL ELECTION.  COUNSEL FURTHER INTIMATED THAT THE LAW WILL
BE CHANGED AGAIN SHOULD A MINORITY PARTY FULFILL THE NEW REQUIRMENTS. 
TR. OF ORAL ART. 7 - 8.  WHATEVER THEIR MERITS, WE DO NOT REACH THESE
CONTENTIONS.  THE ISSUES IN THIS CASE REVOLVE PRINCIPALLY AROUND THE
SIGNATURE REQUIREMENTS FOR MINORITY PARTIES AND INDEPENDENT CANDIDATES
ARE ARE UNAFFECTED BY THE ABOVE AMENDMENT OR BY THE AMENDMENT PREFERRED
TO IN FOOTNOTE 5, INFRA. 

/5/  "ANY POLITICAL PARTY WHOSE NOMINEE FOR GOVERNOR IN THE LAST
PRECEDING GENERAL ELECTION RECEIVED AS MANY AS TWO PERCENT OF THE TOTAL
VOTES CAST FOR GOVERNOR AND LESS THAN TWO HUNDRED THOUSAND VOTES, MAY
NOMINATE CANDIDATES FOR THE GENERAL ELECTION BY PRIMARY ELECTIONS HELD
IN ACCORDANCE WITH THE RULES PROVIDED IN THIS CODE FOR THE PRIMARY
ELECTION OF PARTIES WHOSE CANDIDATE FOR GOVERNOR RECEIVED TWO HUNDRED
THOUSAND OR MORE VOTES AT THE LAST GENERAL ELECTION; OR SUCH PARTY MAY
NOMINATE CANDIDATES FOR THE GENERAL ELECTION BY CONVENTIONS AS PROVIDED
IN (ARTS. 13.47 AND 13.48)."  TEX. ELECTION CODE, ART. 13.45 (1) (SUPP.
1973). 

DURING THE PENDENCY OF THESE CASES IN THIS COURT, THE TEXAS
LEGISLATURE, IN THE SAME ACT AMENDING ART. 13.02, AMENDED ART. 13.45
(1).  STARTING IN 1976, A POLITICAL PARTY WHOSE NOMINEE FOR GOVERNOR IN
THE LAST PRECEDING GENERAL ELECTION RECEIVED AS MANY AS 2% BUT LESS
THAN 20% OF THE TOTAL VOTES CAST FOR GOVERNOR MUST NOMINATE ITS
CANDIDATES FOR THE GENERAL ELECTION BY CONVENTIONS.  FOR THE 1974
ELECTIONS, HOWEVER, THE AMENDMENT TO ART. 13.45 (1) PROVIDES THAT THOSE
POLITICAL PARTIES RECEIVING BETWEEN 2 AND 20% OF THE 1972 GUBERNATORIAL
VOTE WILL CONTINUE TO HAVE A CHOICE BETWEEN PRIMARY ELECTIONS AND
CONVENTIONS. 

/6/  "ANY POLITICAL PARTY WHOSE NOMINEE FOR GOVERNOR RECEIVED LESS
THAN TWO PERCENT OF THE TOTAL VOTES CAST FOR GOVERNOR IN THE LAST
PRECEDING ELECTION, OR ANY NEW PARTY, OR ANY PREVIOUSLY EXISTING PARTY
WHICH DID NOT HAVE A NOMINEE FOR GOVERNOR IN THE LAST PRECEDING GENERAL
ELECTION, MAY ALSO NOMINATE CANDIDATES BY CONVENTIONS AS PROVIDED IN
(ARTS. 13.47 AND 13.48), BUT IN ORDER TO HAVE THE NAMES OF ITS NOMINEES
PRINTED ON THE GENERAL ELECTION BALLOT THERE MUST BE FILED WITH THE
SECRETARY OF STATE, WITHIN 20 DAYS AFTER THE DATE FOR HOLDING THE
PARTY'S STATE CONVENTION, THE LIST OF PARTICIPANTS IN PRECINT
CONVENTIONS HELD BY THE PARTY IN ACCORDANCE WITH (ARTS. 13.45A AND
13.47) OF THIS CODE, SIGNED AND CERTIFIED BY THE TEMPORARY CHAIRMAN OF
EACH RESPECTIVE PRECINCT CONVENTION, LISTING THE NAMES, ADDRESS
(INCLUDING STREET ADDRESS OR POST-OFFICE ADDRESS), AND REGISTRATION
CERTIFICATE NUMBERS OF QUALIFIED VOTERS ATTENDING SUCH PRECINCT
CONVENTIONS IN AN AGGREGATE NUMBER OF AT LEAST ONE PERCENT OF THE TOTAL
VOTES CAST FOR GOVERNOR AT THE LAST PRECEDING GENERAL ELECTION; OR IF
THE NUMBER OF QUALIFIED VOTERS ATTENDING THE PRECINCT CONVENTIONS IS
LESS THAN THAT NUMBER, THERE MUST BE FILED ALONG WITH THE PRECINCT
LISTS PETITION REQUESTING THAT THE NAMES OF THE PARTY'S NOMINEES BE
PRINTED ON THE GENERAL ELECTION BALLOT, SIGNED BY A SUFFICIENT NUMBER
OF ADDITIONAL QUALIFIED VOTERS TO MAKE A COMBINED TOTAL OF AT LEAST ONE
PERCENT OF THE TOTAL VOTES CAST FOR GOVERNOR AT THE LAST GENERAL
ELECTION.  THE ADDRESS AND REGISTRATION CERTIFICATE NUMBER OF EACH
SIGNER SHALL BE SHOWN ON THE PETITION.  NO PERSON WHO, DURING THAT
VOTING YEAR, HAS VOTED AT ANY PRIMARY ELECTION OR PARTICIPATED IN ANY
CONVENTION OF ANY OTHER PARTY SHALL BE ELIGIBLE TO SIGN THE PETITION. 
TO EACH PERSON WHO SIGNS THE PETITION THERE SHALL BE ADMINISTERED THE
FOLLOWING OATH, WHICH SHALL BE REDUCED TO WRITING AND ATTACHED TO THE
PETITION: 'I KNOW THE CONTENTS OF THE FOREGOING PETITION, REQUESTING
THAT THE NAMES OF THE NOMINEES OF THE ---------- PARTY BE PRINTED ON
THE BALLOT FOR THE NEXT GENERAL ELECTION.  I AM A QUALIFIED VOTER AT
THE NEXT GENERAL ELECTION UNDER THE CONSTITUTION AND LAWS IN FORCE, AND
DURING THE CURRENT VOTING YEAR I HAVE NOT VOTED IN ANY PRIMARY ELECTION
OR PARTICIPATED IN ANY CONVENTION HELD BY ANY OTHER POLITICAL PARTY.' 
THE PETITION MAY BE IN MULTIPLE PARTS.  ONE CERTIFICATE OF THE OFFICER
ADMINISTERING THE OATH MAY BE SO MADE AS TO APPLY TO ALL TO WHOM IT WAS
ADMINSTERED.  THE PETITION MAY NOT BE CIRCULATED FOR SIGNATURES UNTIL
AFTER THE DATE SET BY (ART. 13.03) OF THIS CODE FOR THE GENERAL PRIMARY
ELECTION.  ANY SIGNATURES OBTAINED ON OR BEFORE THAT DATE ARE VOID. 
ANY PERSON WHO SIGNS A PETITION AFTER HAVING VOTED IN A PRIMARY
ELECTION OR PARTICIPATED IN A CONVENTION OF ANY OTHER PARTY DURING THE
SAME VOTING YEAR IS GUILTY OF A MISDEMEANOR AND UPON CONVENTION SHALL
BE FINED NOT LESS THAN $100 NOR MORE THAN $500. 

"THE CHAIRMAN OF THE STATE EXECUTIVE COMMITTEE SHALL BE RESPONSIBLE
FOR FORWARDING THE PRECINCT LISTS AND PETITION TO THE SECRETARY OF
STATE. 

"AT THE TIME THE SECRETARY OF STATE MAKES HIS CERTIFICATIONS TO THE
COUNTY CLERKS AS PROVIDED IN (ART. 1.03) OF THIS CODE, HE SHALL ALSO
CERTIFY TO THE COUNTY CLERKS THE NAMES OF PARTIES SUBJECT TO THIS
SUBDIVISION WHICH HAVE COMPLIED WITH ITS REQUIREMENTS, AND THE COUNTY
CLERKS SHALL NOT PLACE ON THE BALLOT THE NAMES OF ANY NOMINEES OF SUCH
A PARTY WHICH HAVE BEEN CERTIFIED DIRECTLY TO THEM UNLESS THE SECRETARY
OF STATE CERTIFIES THAT THE PARTY HAS COMPLIED WITH THESE
REQUIREMENTS."  TEX. ELECTION CODE, ART. 13.45 (2) (SUPP. 1973). 

/7/  "THE NAME OF A NONPARTISAN OR INDEPENDENT CANDIDATE MAY BE
PRINTED ON THE OFFICIAL BALLOT IN THE COLUMN FOR INDEPENDENT
CANDIDATES, AFTER A WRITTEN APPLICATION SIGNED BY QUALIFIED VOTERS
ADDRESSED TO THE PROPER OFFICER, AS HEREIN PROVIDED, AND DELIVERED TO
HIM WITHIN THIRTY DAYS AFTER THE SECOND PRIMARY ELECTION DAY, AS
FOLLOWS: 

"IF FOR AN OFFICE TO BE VOTED FOR THROUGHOUT THE STATE, THE
APPLICATION SHALL BE SIGNED BY ONE PER CENT OF THE ENTIRE VOTE OF THE
STATE CAST FOR GOVERNOR AT THE LAST PRECEDING GENERAL ELECTION, AND
SHALL BE ADDRESSED TO THE SECRETARY OF STATE. 

"IF FOR A DISTRICT OFFICE IN A DISTRICT COMPOSED OF MORE THAN ONE
COUNTY, THE APPLICATION SHALL BE SIGNED BY THREE PER CENT OF THE ENTIRE
VOTE CAST FOR GOVERNOR IN SUCH DISTRICT AT THE LAST PRECEDING GENERAL
ELECTION, AND SHALL BE ADDRESSED TO THE SECRETARY OF STATE. 

"IF FOR A DISTRICT OFFICE IN A DISTRICT COMPOSED OF ONLY ONE COUNTY
OR PART OF A COUNTY, THE APPLICATION SHALL BE SIGNED BY FIVE PER CENT
OF THE ENTIRE VOTE CAST FOR GOVERNOR IN SUCH DISTRICT AT THE LAST
PRECEDING GENERAL ELECTION, AND SHALL BE ADDRESSED TO THE SECERTARY OF
STATE. 

"IF FOR A COUNTY OFFICE, THE APPLICATION SHALL BE SIGNED BY FIVE PER
CENT OF THE ENTIRE VOTE CAST FOR GOVERNOR IN SUCH COUNTY AT THE LAST
PRECEDING GENERAL ELECTION, AND SHALL BE ADDRESSED TO THE COUNTY
JUDGE. 

"IF FOR A PRECINCT OFFICE, THE APPLICATION SHALL BE SIGNED BY FIVE
PER CENT OF THE ENTIRE VOTE CAST FOR GOVERNOR IN SUCH PRECINCT AT THE
LAST PRECEDING GENERAL ELECTION, AND SHALL BE ADDRESSED TO THE COUNTY
JUDGE. 

"NOTWITHSTANDING THE FOREGOING PROVISIONS, THE NUMBER OF SIGNATURES
REQUIRED ON AN APPLICATION FOR ANY DISTRICT, COUNTY, OR PRECINCT OFFICE
NEED NOT EXCEED FIVE HUNDRED. 

"NO APPLICATION SHALL CONTAIN THE NAME OF MORE THAN ONE CANDIDATE. 
NO PERSON SHALL SIGN THE APPLICATION OF MORE THAN ONE CANDIDATE FOR THE
SAME OFFICE; AND IF ANY PERSON SIGNS THE APPLICATION OF MORE THAN ONE
CANDIDATE FOR THE SAME OFFICE, THE SIGNATURE SHALL BE VOID AS TO ALL
SUCH APPLICATIONS.  NO PERSON SHALL SIGN SUCH APPLICATION UNLESS HE IS
A QUALIFIED VOTER, AND NO PERSON WHO HAS VOTED AT EITHER THE GENERAL
PRIMARY ELECTION OR THE RUNOFF PRIMARY ELECTION OF ANY PARTY SHALL SIGN
AN APPLICATION IN FAVOR OF ANYONE FOR AN OFFICE FOR WHICH A NOMINATION
WAS MADE AT EITHER SUCH PRIMARY ELECTION. 

"THE APPLICATION SHALL CONTAIN THE FOLLOWING INFORMATION WITH
RESPECT TO EACH PERSON SIGNING IT: HIS ADDRESS AND THE NUMBER OF HIS
POLL TAX RECEIPT OR EXEMPTION CERTIFICATE AND THE COUNTY OF ISSUANCE;
OR IF HE IS EXEMPT FROM PAYMENT OF A POLL TAX AND NOT REQUIRED TO
OBTAIN AN EXEMPTION CERTIFICATE, THE APPLICATION SHALL SO STATE. 

"ANY PERSON SIGNING THE APPLICATION OF AN INDEPENDENT CANDIDATE MAY
WITHDRAW AND ANNUL HIS SIGNATURE BY DELIVERING TO THE CANDIDATE AND TO
THE OFFICER WITH WHOM THE APPLICATION IS FILED (OR IS TO BE FILED, IF
NOT THEN FILED), HIS WRITTEN REQUEST, SIGNED AND DULY ACKNOWLEDGED BY
HIM, THAT HIS SIGNATURE BE CANCELLED AND ANNULLED.  THE REQUEST MUST BE
DELIVERED BEFORE THE APPLICATION IS ACTED ON, AND NOT LATER THAN THE
DAY PRECEDING THE LAST DAY FOR FILING THE APPLICATION.  UPON SUCH
WITHDRAWAL, THE PERSON SHALL BE FREE TO SIGN THE APPLICATION OF ANOTHER
CANDIDATE FOR THE SAME OFFICE."  TEX. ELECTION CODE, ART. 13.50
(1967). 

"TO EVERY CITIZEN WHO SIGNS SUCH APPLICATION, THERE SHALL BE
ADMINISTERED THE FOLLOWING OATH, WHICH SHALL BE REDUCED TO WRITING AND
ATTACHED TO SUCH APPLICATION: 'I KNOW THE CONTENTS TO THE FOREGOING
APPLICATION; I HAVE NOT PARTICIPATED IN THE GENERAL PRIMARY ELECTION OR
THE RUNOFF PRIMARY ELECTION OF ANY PARTY WHICH HAS NOMINATED, AT EITHER
SUCH ELECTION, A CANDIDATE FOR THE OFFICE FOR WHICH I DESIRE -------
(HERE INSERT THE NAME OF THE CANDIDATE) TO BE A CANDIDATE; I AM A
QUALIFIED VOTER AT THE NEXT GENERAL ELECTION UNDER THE CONSTITUTION AND
LAWS IN FORCE AND HAVE SIGNED THE ABOVE APPLICATION OF MY OWN FREE
WILL.'  ONE CERTIFICATE OF THE OFFICER BEFORE WHOM THE OATH IS TAKEN
MAY BE SO MADE AS TO APPLY TO ALL TO WHOM IT WAS ADMINISTERED."  TEX.
ELECTION CODE, ART. 13.51 (1967). 

/8/  PRIOR TO THE CONVENING OF THE THREE-JUDGE COURT, THE SINGLE
JUDGE DISTRICT COURT HAD TEMPORARILY RESTRAINED APPELLEE FROM REFUSING
TO ACCEPT AND FILE SUPPLEMENTAL NOMINATING PETITIONS OBTAINED BY THE
AMERICAN PARTY OF TEXAS BETWEEN THE STATUTORY DEADLINE FOR FILING THEM,
JUNE 30, 1972, AND SEPTEMBER 1, 1972.  DURING THE ADDITIONAL COURT
ORDERED CIRCULATION PERIOD, THE AMERICAN PARTY OF TEXAS GARNERED 17,678
ADDITIONAL SIGNATURES, BRINGING THEIR TOTAL TO OVER 25,000.  BRIEF FOR
AMERICAN PARTY OF TEXAS 5.  IN ITS FINAL ORDER, THE THREE JUDGE COURT
DISSOLVED THE RESTRAINING ORDER AND DECLARED ALL SIGNATURES GATHERED
DURING THE EXTENDED PERIOD TO BE NULL AND VOID.  349 F. SUPP., AT
1286.  THIS COURT DENIED A SUBSEQUENT APPLICATION FOR A TEMPORARY
ORDER, 409 U.S. 803 (1972).     /9/  TR. OF ORAL ARG. 24. 

/10/  APPELLANTS ALSO CHALLENGED TWO ASPECTS OF THE TEXAS ELECTION
CODE UNRELATED TO BALLOT QUALIFICATION: EXCLUSION FROM PUBLIC FINANCING
FOR NOMINATION AND BALLOT QUALIFICATION EXPENSES AND RESTRICTIONS ON
THE AVAILABILITY OF ABSENTEE BALLOTS.  THESE PROVISIONS ARE DISCUSSED
SEPARATELY IN PARTS IV AND V. INFRA. 

THE AMERICAN PARTY AND TEXAS NEW PARTY CHALLENGED IN THE DISTRICT
COURT ON EQUAL PROTECTION AND DUE PROCESS GROUNDS THE REQUIREMENT OF
ART. 13.47(1) (1967) THAT A PERSON SEEKING NOMINATION AS A MINORITY
PARTY CANDIDATE COMPLY WITH ART. 13.12 AND FILE A DECLARATION TO THIS
EFFECT APPROXIAMETLY THREE MONTHS BEFORE THE PARTY PRIMARIES AND
CONVENTIONS.  THE DISTRICT COURT UPHELD THIS PROVISION, NOTING THAT IT
APPLIED TO ALL POLITICAL PARTIES.  IN THIS COURT, ONLY THE TEXAS NEW
PARTY HAS DISCUSSED THIS RESTRICTION.  WHILE APPELLANT SEEMS TO BE
ARGUING THAT THIS REQUIREMENT, ALONG WITH ALL OTHERS, IMPOSED UPON
MINORITY POLITICAL PARTIES, MAKES ITS BALLOT QUALIFICATION MORE
BURDENSOME, WE ARE UNABLE TO DISTINGUISH THIS CONTENTION FROM THE
PARTY'S OVERALL ATTACK ON THE TEXAS STATUTORY SCHEME.  AS SUCH, IT MUST
FAIL FOR THE REASONS DISCUSSED IN PART II OF THE OPINION.  MOREOVER,
APPELLANT READILY CONCEDES THAT "(THIS REQUIRMENT IS IDENTICAL TO THAT
IMPOSED UPON PROSPECTIVE CANDIDATES FOR A MAJOR PARTY NOMINATION BY
ART. 13.12."  BRIEF FOR TEXAS NEW PARTY 7.  WE DO NOT UNDERSTAND
APPELLANT TO BE ARGUING THAT THE STATE MAY IMPOSE NO DEADLINE FOR
DECLARING ONE'S CANDIDACY.  NOR DO WE READ ITS BRIEF ON THE MERITS AS
CHALLENGING THE REASONABLENESS OF THE THREE-MONTH BENCHMARK CHOSEN BY
TEXAS.  UNDER THESE CIRCUMSTANCES, WE AFFIRM THE JUDGMENT OF THE
DISTRICT COURT ON THIS POINT. 

/11/  "THE RIGHT TO FORM A PARTY FOR THE ADVANCEMENT OF POLITICAL
GOALS MEANS LITTLE IF A PARTY CAN BE KEPT OFF THE ELECTION BALLOT AND
THUS DENIED AN EQUAL OPPORTUNITY TO WIN VOTES.  SO ALSO, THE RIGHT TO
VOTE IS HEAVILY BURDENED IF THAT VOTE MAY BE CAST ONLY FOR ONE OF TWO
PARTIES AT A TIME WHEN OTHER PARTIES ARE CLAMORING FOR A PLACE ON THE
BALLOT.  IN DETERMINING WHETHER THE STATE HAS POWER TO PLACE SUCH
UNEQUAL BURDENS ON MINORITY GROUPS WHERE RIGHTS OF THIS KIND ARE AT
STAKE, THE DECISIONS OF THIS COURT HAVE CONSISTENTLY HELD THAT 'ONLY A
COMPELLING STATE INTEREST IN THE REGULATION OF A SUBJECT WITHIN THE
STATE'S CONSITIUTIONAL POWER TO REGULATE CAN JUSTIFY LIMITATING FIRST
AMENDMENT FREEDOMS.'  NAACP V. BUTTONS, 371 U.S. 415, 438 (1963)." 
WILLIAMS V. RHODES, 393 U.S. 23,31 (1968).  SEE ALSO KUSPER V.
PONTIKES, 414 U.S. 51, 56 - 59 (1973). 

/12/  SEE, E. G., TEX. ELECTION CODE, ARTS. 13.33, 13.34, 13.35,
13.37, 13.38 (1967, SUPP. 1973, SUPP. 1974). 

/13/  "THE FACT IS THAT THERE ARE OBVIOUS DIFFERENCES IN KIND
BETWEEN THE NEED AND POTENTIALS OF A POLITICAL PARTY WITH HISTORICALLY
ESTABLISHED BROAD SUPPORT, ON THE ONE HAND, AND A NEW OR SMALL
POLITICAL ORGANIZATION ON THE OTHER.  (A STATE IS NOT) GUILTY OF
INVIDIOUS DISCRIMINATION IN RECOGNIZING THESE DIFERENCES AND PROVIDING
DIFFERENT ROUTES TO THE PRINTED BALLOT.  SOMETIMES THE GROSSEST
DISCRIMINATION CAN LIE IN TREATING THINGS THAT ARE DIFFERENT AS THOUGH
THEY WERE EXACTLY ALIKE, A TRUISM WELL ILLUSTRATED IN WILLIAMS V.
RHODES, SUPRA."  JENNESS V. FORTSON, 403 U.S. 431, 441 - 442 (1971). 

/14/  APPELLANTS CONCEDE, AS WE THINK THEY MUST, THAT THE OBJECTIVES
OSTENSIBLY SOUGHT BY THE STATE, VIZ., PRESERVATION OF THE INTEGRITY OF
THE ELECTORAL PROCESS AND REGULATING THE NUMBER OF CANDIDATES ON THE
BALLOT TO AVOID UNDUE VOTER CONFUSION, ARE COMPELLING.  BRIEF FOR TEXAS
NEW PARTY 18 - 19.  SEE, E.G., RESARIO V. ROCKEFELLER, 410 U.S., AT
761; DUNN V. BLUMSTEIN, 405 U.S. 330, 345 (1972); BULLOCK V. CARTER,
405 U.S. 134, 145 (1972); WILLIAMS V. RHODES, 393 U.S., AT 32.  AS WE
SAID ONLY RECENTLY IN JENNESS V. FORTSON, SUPRA, AT 442: 

"THERE IS SURELY AN IMPORTANT STATE INTEREST IN REQUIRING SOME
PRELIMINARY SHOWING OF A SIGNIFICANT MODICUM OF SUPPORT BEFORE PRINTING
THE NAME OF A POLITICAL ORGANIZATION'S CANDIDATE ON THE BALLOT -- THE
INTEREST, IF NO OTHER, IN AVOIDING CONFUSION, DECEPTION, AND EVEN
FRUSTRATION OF THE DEMOCRATIC PROCESS AT THE GENERAL ELECTION." 

/15/  THE DISTRICT COURT BALANCED THIS LENIENT 1% PETITION
REQUIREMENT AGAINST WHAT IT THOUGHT WAS A SOMEWHAT BURDENSOME
REQUIREMENT OF PRECINCT, COUNTY, AND STATE CONVENTIONS AND CONCLUDED
THAT, AS A WHOLE, THE SYSTEM WAS VALID.  ACTUALLY, SAVE THE PRECINCT
NOMINATING CONVENTIONS, THE PARTY NOMINATING CONVENTION PROCESS IS
UNRELATED TO BALLOT QUALIFICATION AND CORRESPONDS MORE TO THE
DEMOCRATIC MANAGEMENT OF THE POLITICAL PARTY'S INTERNAL AFFAIRS. 

/16/  AS WE HAVE ALREADY INDICATED, THE NOMINEES OF THE TWO MAJOR
PARTIES ARE AUTOMATICALLY PLACED ON THE GENERAL ELECTION BALLOT, BUT
THIS IS ONLY BECAUSE THESE PARTIES HAVE RECENTLY DEMONSTRATED
SUBSTANTIAL VOTER APPEAL.  TEXAS HAS CHOSEN THIS REASONBLE WAY TO
MEASURE PUBLIC SUPPORT FOR THE MORE ESTABLISHED POLITICAL PARTIES.  WE
DO NOT UNDERSTAND APPELLANTS TO ARGUE THAT THE DEMOCRATIC AND
REPUBLICAN PARTIES IN TEXAS MUST ALSO BE REQUIRED TO CIRCULATE
PETITIONS AND GARNER THE REQUISITE 1% SHOWING.  WE FURTHER DOUBT THAT
APPELLANTS WOULD CARE TO BE FORCED TO CONDUCT A PRIMARY ELECTION IN
EVERY PRECINCT IN EACH OF TEXAS' 254 COUNTIES.  CF. JENNESS V. FORTSON,
SUPRA, AT 441.  MOREOVER, THE MAJOR PARTIES, LIKE THEIR SMALLER OR
NEWER CONTERPARTS, MUST SATISFY THE SAME STATUTORY QUALIFICATIONS AS TO
DECLARATION OF CANDIDACY, CERTIFICATIONS OF NOMINATING PROCESS RESULTS,
AND THE LIKE.  TEXAS HAS PROVIDED ALTERNATIVE ROUTES TO THE BALLOT --
STATEWIDE PRIMARIES AND PRECINCT CONVENTIONS--IT IS PROBLEMATICAL AT
BEST WHICH IS MORE ONEROUS IN FACT.  IT IS SUFFICIENT TO NOTE THAT THE
SYSTEM DOES NOT CREATE OR PROMOTE A SUBSTANTIAL IMBALANCE IN THE
RELATIVE DIFFICULTY OF EACH GROUP TO QUALIFY FOR THE BALLOT. 

/17/  THE PARTIES HAVE NOT BROUGHT TO OUR ATTENTION ANY DECISION
HOLDING THAT AS A CONSTITUTIONAL MATTER, A STATE IS OBLIGATED TO ALLOW
A VOTER TO VOTE IN A PARTY PRIMARY AND SIGN A NOMINATING PETITION.  IT
IS TRUE THAT UNDER THE GEORGIA SYSTEM IN JENNESS V. FORTSON, SUPRA, THE
STATE HAD APPARENTLY DECIDED THAT ITS LEGITIMATE GOALS WOULD NOT BE
COMPROMISED BY ALLOWING VOTERS TO SIGN A PETITION EVEN THOUGH THEY HAVE
SIGNED OTHER AND PARTICIPATED IN A PARTY PRIMARY.  NOTHING IN THAT
DECISION, HOWEVER, CAN BE READ TO IMPOSE UPON THE STATES THE
AFFIRMATIVE DUTY TO ALLOW VOTERS TO MOVE FREELY FROM ONE TO THE OTHER
METHOD OF NOMINATING CANDIDATES FOR THE SAME PUBLIC OFFICE.  THIS
READING BECOMES ALL THE MORE EVIDENT IN LIGHT OF THE FACT THAT JACKSON
V. OGLIVIE, 325 F. SUPP. 864 (ND ILL. 1971), WAS AFFIRMED ON THE SAME
DAY THAT JENNESS WAS DECIDED, 403 U.S. 925.  INDEED, THE FEDERAL COURT
DECISIONS WITH WHICH WE ARE FAMILIAR AGREE WITH JACKSON V. OGLIVIE AND
REFLECT THE VIEWS WE ADOPT HERE.  SEE E.G., MORRE V. BOARD OF ELECTIONS
FOR THE DISTRICT OF COLUMBIA, 319 F. SUPP. 437 (DC 1973); WOOD V.
PUTTERMAN, 316 F. SUPP. 646 (MD.), AFF'D, 400 U.S. 859 (1970);
SOCIALIST WORKERS PARTY V. ROCKEFELLER, 314 F. SUPP. 984 (SDNY 1970),
AFF', 400 U.S. 806. 

/18/  THE 55-DAY PERIOD FOR PETITION CIRCULATION TERMINATES 120 DAYS
BEFORE THE GENERAL ELECTION.  WE AGREE WITH THE DISTRICT COURT THAT
SOME CUTOFF PERIOD IS NECESSARY FOR THE SECRETARY OF STATE TO VERIFY
THE VALIDITY OF SIGNATURES ON THE PETITIONS, TO PRINT THE BALLOTS, AND,
IF NECESSARY, TO LITIGATE ANY CHALLENGES.  WE ALSO BELIEVE THAT IN VIEW
OF THE OVERALL STATUTORY SCHEME AND PARTICULARLY IN LIGHT OF THE
"SECOND CHANCE" TEXAS AFFORDS SMALLER POLITICAL PARTIES TO QUALIFY BY
PETITION, THE 120-DAY PRE-ELECTION FILING DEADLINE IS NEITHER
UNREASONABLE NOR UNDULY BURDENSOME. 

/19/  TEX. ELECTION CODE, ART. 14.01. 

/20/  JENNESS V. FORTSON, 403 U.S., AT 442; SEE SUPRA, AT 782. 

/21/  THIS 25% APPROXIMATION MAY ACTUALLY BE A CONSERVATIVE
PROJECTION.  VOTING STATISTICS COMPILED BY THE OFFICE OF SECRETARY OF
STATE INDICATE THAT 2,306,910 VOTES WERE CAST FOR GOVERNOR IN THE FIRST
1972 TEXAS PRIMARIES OF BOTH PARTIES AND 2,036,770 IN THE RUNOFF
PRIMARY ELECTIONS.  AS OF JANUARY 31, 1972, THE LAST DATE BEFORE THE
PRIMARIES ON WHICH AGGREGATE STATEWIDE STATISTICS ARE AVAILABLE,
3,872,462 VOTERS HAD REGISTERED IN TEXAS.  THUS, WITHOUT ACCOUNTING FOR
ANY INCREASED REGISTRATION BY THE TIME OF THE PRIMARIES, REGISTERED
VOTER TURNOUT RANGED FROM APPROXIMATELY 60% TO 53%, RESPECTIVELY.  IT
IS, OF COURSE, CONCEIVABLE THAT SOME VOTERS PARTICIPATING IN THE RUNOFF
PRIMARIES HAD NOT VOTED IN THE FIRST PRIMARY, THEREBY RAISING TO SOME
FIGURE HIGHER THAN 60% THOSE VOTERS WHO WERE DISQUALIFIED UNDER TEXAS
LAW FROM SIGNING THE NOMINATING PETITIONS OF INDEPENDENT CANDIDATES. 
WE ARE NEVERTHELESS UNWILLING TO ASSUME BASED ON THE EVIDENCE BEFORE US
THAT THIS WOULD BE SUCH A HIGH NUMBER OF VOTERS THAT INDEPENDENT
CANDIDATES WOULD BE LEFT WITH AN INSIGNIFICANT POOL OF ELIGLBLE VOTERS
TO SIGN THEIR PETITIONS. 

COMPARATIVE VOTING STATISTICS ON PRIMARY ELECTION PARTICIPATION IN
OTHER STATES ALSO SUGGEST THAT THE 25% ESTIMATE IS MODEST.  IN
CALIFORNIA, FOR EXAMPLE, OFFICIAL FIGURES REVEAL THE FOLLOWING
PERCENTAGE OF TOTAL REGISTERED VOTERS AT ALL PRIMARIES FOR THE PAST
SEVEN BIENNIAL ELECTIONS:

1960 62.80%

        1962 63.53%

        1964 71.94%

        1966 64.67%

        1968 72.21%

        1970 62.23%

        1972 70.95% CALIFORNIA SECRETARY OF STATE, STATEMENT OF
VOTE, CONSOLIDATED PRIMARY ELECTION, JUNE 30, 1972, P. 3. 

THE 1972 DEMOCRATIC PARTY PRESIDENTIAL PRIMARIES IN FLORIDA AND
MASSACHUSSETTS WITNESSED VOTER TURNOUT OF APPROXIMATELY 59% AND 56%,
RESPECTIVELY.  30 CONGRESSIONAL QUARTERLY 481, 862, 1655 (1972).  THE
REALISTIC PROSPECT OF A POSTPRIMARY POOL OF MUCH HIGHER THAN 25% IS
EVEN GREATER IN LIGHT OF THE FACT THAT TEXAS HAS TRADITIONALLY TRAILED
BEHIND NATIONAL VOTER PARTICIPATION AVERAGES BY A SIZABLE MARGIN.  C.
MCCLESKEY, THE GOVERNMENT AND POLITICS OF TEXAS 38 (4TH ED. 1972). 

/22/  THE INDEPENDENT CANDIDATES ALSO CHALLENGED THE NOTARY
PROVISION OF ART. 13.51.  NOTHING THAT WE HAVE BEEN SHOWN, HOWEVER,
CONVINCES US THAT THE NOTARIAL REQUIREMENT FOR INDEPENDENT CANDIDATES
IS MORE SUSPECT OR BURDENSOME THAN THAT IMPOSED UPON THE POLITICAL
PARTIES.  SEE SUPRA, AT 787. 

/23/  SINCE IT WAS TEMPORARY MEASURE, THIS PRIMARY FINANCING
LEGISLATION HAS EXPIRED AND IT HAS BEEN REPLACED BY NEW LEGISLATION,
THE PRIMARY CONDUCT AND FINANCING LAW OF 1974.  TEX. ELECTION CODE,
ART. 13.08C-2 (SUPP. 1974).  THIS SCHEME PROVIDES FOR A SCHEDULE OF
CANDIDATE FILING FEES FOR ACCESS TO THE GENERAL PRIMARY ELECTION
BALLOT.  THE FILING FEES WAIVED SHOULD THE PRIMARY CANDIDATE FILE A
NOMINATING PETITION SIGNED BY A DESIGNATED NUMBER OF VOTERS.  THOSE
FILING FEES PAID TO THE COUNTY CHAIRMAN OF A POLITICAL PARTY HOLDING A
PRIMARY ELECTION ARE USED TO PAY THE PARTY'S PRIMARY EXPENSES.  ANY
REMAINING COSTS ARE DEFRAYED BY THE STATE IN ACCORDANE WITH A VOUCHER
SYSTEM SUBSTANTALLY IDENTICAL TO THAT PROVIDED IN THE MCKOOL-STROUD
PRIMARY FINANCING LAW OF 1972 CHALLENGED BY APPELLANTS.  THE NEW
LEGISLATION IS ALSO COMPARABLE TO ITS PREDECESSOR INSOFAR AS ONLY THOSE
POLITICAL PARTIES REQUIRED TO CONDUCT PRIMARY ELECTIONS, WHICH UNDER
RECENT AMENDMENTS TO THE TEXAS ELECTION CODE ARE ONLY THOSE PARTIES
POLLING 20% OR MORE OF THE VOTE CAST FOR GOVERNOR IN THE LAST GENERAL
ELECTION, SEE N. 4, SUPRA, ARE ELIGIBLE FOR STATE FUNDING. 

THE RECENT AMENDMENTS TO THE 1972 FINANCING LAW HAVE NOT MOOTED THIS
CONTROVERSY.  IF APPELLANTS WERE CORRECT THAT THEY HAD BEEN
UNCONSTITUTIONALLY DEPRIVED OF PUBLIC FINANCING FOR THEIR 1972
QUALIFICATION AND NOMINATION EXPENSES, THEY MIGHT BE ABLE TO COMPEL THE
STATE TO REIMBURSE THEM.  UNDER THESE CIRCUMSTANCES AND IN VIEW OF THE
SPECIAL NATURE OF ELECTION CHALLENGES IN GENERAL AND THIS SHORT-TERM
FUNDING MEASURE IN PARTICULAR, WE PROCEED TO EVALUTE APPELLANTS' CLAIMS
ON THE MERITS. 

/24/  THE AMERICAN PARTY HAS ALLEGED THAT BY VIRTUE OF THE STATE'S
CUMPULSORY NOMINATING AND QUALIFICATION PROCEDURES, IT WAS FORCED TO
INCUR EXTRAORDINARY COSTS, INCLUDING THE PRINTING OF 12,000 SIGNATURE
SHEETS, PAYMENT OF AT LEAST 50[ AS A STATUTORY NOTARY FEE FOR OVER
22,000 SIGNATURES, AND EXPENDITURES FOR DISTRIBUTING, COLLECTING, AND
FILING PETITIONS. 

/25/  "APPELLANTS STRENUOUSLY URGE THAT APPORTIONING THE COST AMONG
THE CANDIDATES IS THE ONLY FEASIBLE MEANS FOR FINANCING THE PRIMARIES. 
THEY ARGUE THAT IF THE STATE MUST FINANCE THE PRIMARIES, IT WILL HAVE
TO DETERMINE WHICH POLITICAL BODIES ARE 'PARTIES' SO AS TO BE ENTITLED
TO STATE SPONSORSHIP FOR THEIR NOMINATING PROCESS, AND THAT THIS WILL
RESULT IN NEW CLAIMS OF DISCRIMINATION.  APPELLANTS SEEM TO OVERLOOK
THE FACT THAT A SIMILAR DISTINCTION IS PRESENTLY EMBODIED IN TEXAS LAW
SINCE ONLY THOSE POLITICAL PARTIES WHOSE GUBERNATORIAL CANDIDATE
RECEIVED 200,000 OR MORE VOTES IN THE LAST PRECEDING GENERAL ELECTION
ARE REQUIRED TO CONDUCT PRIMARY ELECTIONS.  MOREOVER, THE COURT HAS
RECENTLY UPHELD THE VALIDITY OF A STATE LAW DISTINGUISHING BETWEEN
POLITICAL PARTIES ON THE BASIS OF SUCCESS IN PRIOR ELECTIONS.  JENNESS
V. FORTSON, SUPRA.  WE ARE NOT PERSUADED THAT TEXAS WOULD BE FACED WITH
AN IMPOSSIBLE TASK IN DISTINGUISHING BETWEEN POLITICAL PARTIES FOR THE
PURPOSE OF FINANCING PRIMARIES."  405 U.S., AT 147 (FOOTNOTE OMITTED). 
MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

WHILE I AGREE WITH THE COURT ON THE ABSENTEE BALLOT ASPECT OF THESE
CASES, I DISSENT ON THE MAIN ISSUE.  THESE CASES INVOLVE APPEALS FROM
THE DISMISSAL OF CONSOLIDATED CLASS ACTIONS SEEKING DECLARATORY AND
INJUNCTIVE RELIEF AGAINST PROVISIONS OF THE TEXAS ELECTION CODE
RELATING TO MINORITY PARTIES AND INDEPENDENT CANDIDATES.  THE DISTRICT
COURT NOTED THAT: 

"WHILE THE SUPREME COURT OF THE UNITED STATES HAS DELINEATED ON THE
EXTREME END OF THE SPECTRUM THOSE COMBINATIONS OF RESTRICTIONS WHICH
UNCONSTITUTIONALLY IMPEDE THE ELECTION PROCESS (WILLIAMS V.RHODES, 393
U.S. 23 (1968), AND THOSE ON THE OTHER END WHICH DO NOT (JENNESS V.
FORTSON, 403 U.S. 431 (1971)), THIS CASE PRESENTS A NEW COMBINATION
WHICH FALLS SQUARELY IN THE MIDDLE."  RAZA UNIDA PARTY V. BULLOCK, 349
F. SUPP. 1272, 1275 - 1276 (WD TEX. 1972).  THE HURDLES FACING MINORITY
PARTIES SUCH AS THE AMERICAN PARTY OF TEXAS IN SEEKING TO PLACE
NOMINEES ON THE BALLOT ARE SET OUT AND COMPARED WITH THOSE OF JENNESS
V. FORTSON, 403 U.S. 431, IN MY OPINION DISSENTING FROM THE DENIAL OF A
TEMPORARY RESTRAINING ORDER IN AMERICAN PARTY OF TEXAS V. BULLOCK, 409
U.S. 803.  /1/  I THERE NOTED THAT: 

     "WE SAID IN JENNESS V. FORTSON, SUPRA, AT 438, 'GEORGIA'S

  ELECTION LAWS, UNLIKE OHIO'S, DO NOT OPERATE TO FREEZE THE STATUS

  QUO.'  TEXAS, THOUGH NOT AS SEVERE AS OHIO, WORKS IN THAT

  DIRECTION.  IT THEREFORE SEEMS TO ME, AT LEAST PRIMA FACIE, TO

  IMPOSE AN INVIDIOUS DISCRIMINATION ON THE UNORTHODOX POLITICAL

  GROUP. 

     "PERHAPS FULL ARGUMENT WOULD DISPEL THESE DOUBTS.  BUT THEY
ARE

  SO STRONG THAT I WOULD GRANT THE REQUESTED STAY . . . ."  ID., AT

  806. 

ORAL ARGUMENT HAS FAILED TO DISPEL THE DOUBTS.  FOR THE REASONS STATED
IN AMERICAN PARTY OF TEXAS V. BULLOCK, SUPRA, I BELIEVE THAT THE
TOTALITY OF THE REQUIREMENTS IMPOSED UPON MINORITY PARTIES WORKS AN
INVIDIOUS AND UNCONSTITUTIONAL DISCRIMINATION. 

AN ANALYSIS OF THE REQUIREMENTS IMPOSED ON INDEPENDENT CANDIDATES
LEADS ME TO THE SAME CONCLUSION.  /2/  UNDER THE PROCEDURES REVIEWED IN
JENNESS, INDEPENDENT CANDIDATES SEEKING A BALLOT POSITION HAD SIX
MONTHS TO SECURE THE SIGNATURES OF 5% OF THE ELIGIBLE ELECTORATE FOR
THE OFFICE IN QUESTION.  THE PERCENTAGE REQUIRED IN TEXAS RANGES,
ACCORDING TO THE OFFICE, FROM 1% OF THE LAST STATEWIDE GUBERNATORIAL
VOTE TO 5% OF THE LAST LOCAL GUBERNATORIAL VOTE, AND IN ANY CASE NO
MORE THAN 500 SIGNATURES ARE REQUIRED; THE CANDIDATE, HOWEVER, HAS ONLY
30 DAYS IN WHICH TO GATHER THEM.  IN JENNESS A VOTER COULD SIGN A
CANDIDATE'S PETITION EVEN THOUGH HE HAD ALREADY SIGNED OR WOULD SIGN
OTHERS.  HERE NO VOTER MAY SIGN THE APPLICATION OF MORE THAN ONE
CANDIDATE.  IN JENNESS A VOTER WHO SIGNED THE PETITION OF AN
INDEPENDENT WAS FREE THEREAFTER TO PARTICIPATE IN A PARTY PRIMARY AND A
VOTER WHO PREVIOUSLY VOTED IN A PARTY PRIMARY WAS FULLY ELIGIBLE TO
SIGN A PETITION.  HERE INDEPENDENTS ARE NOT EVEN ALLOWED TO SEEK
SIGNATURES UNTIL AFTER THE MAJOR PARTIES PRIMARIES AND NO VOTER WHO HAS
PARTICIPATED IN A PARTY PRIMARY IS ALLOWED TO SIGN AN INDEPENDENT
CANDIDATE'S APPLICATION.  IN JENNESS NO SIGNATURE ON A NOMINATING
PETITION HAD TO BE NOTARIZED, BUT THAT IS NOT THE CASE HERE. 

IN JENNESS WE WERE ABLE TO SAY THAT GEORGIA "HAS INSULATED NOT A
SINGLE POTENTIAL VOTER FROM THE APPEAL OF NEW POLITICAL VOICES WITHIN
ITS BORDERS."  403 U.S., AT 442.  IN TEXAS, HOWEVER, THE INDEPENDENT,
LIKE THE MINORITY PARTY, MUST "DRAW (HIS) SUPPORT FROM THE RANKS OF
THOSE WHO (ARE) EITHER UNWILLING OR UNABLE TO VOTE IN THE PRIMARIES OF
THE ESTABLISHED PARTIES."  AMERICAN PARTY OF TEXAS V. BULLOCK, 409
U.S., AT 806.  AS WITH MINORITY PARTIES, I DO BELIEVE THAT TEXAS MAY
CONSTITUTIONALLY LEAVE INDEPENDENT CANDIDATES TO "BE CONTENT WITH THE
LEFT-OVERS TO GET ON THE BALLOT."  IBID. 

/1/  AS I THERE NOTED, MINORITY PARTIES WHOSE GUBERNATORIAL
CANDIDATE IN THE LAST ELECTION POLLED MORE THAN 2% OF THE TOTAL VOTES
CAST BUT LESS THAN 200,000 WERE ALLOWED TO SELECT CANDIDATES THROUGH
EITHER PRIMARIES OR NOMINATING CONVENTIONS.  TEX. ELECTION CODE, ART.
13.45(1) (SUPP. 1972).  THE LAW HAS SINCE BEEN CHANGED SO THAT A
MINORITY PARTY WHICH FIELDED A GUBERNATORIAL CANDIDATE WHO POLLED MORE
THAN 2% OF THE VOTE IN THE LAST ELECTION MAY NOT SELECT CANDIDATES
THROUGH PRIMARIES BUT MUST NOMINATE THROUGH CONVENTIONS UNLESS THE
GUBERNATORIAL CANDIDATE POLLED MORE THAN 20% OF THE VOTE.  TEXAS S.B.
NO. 11, 63D LEGISLATURE, REGULAR SESSION, 6 (1973), QUOTED IN
SUPPLEMENTAL APPENDIX TO BRIEF FOR APPELLANTS AMERICAN PARTY OF TEXAS
14 - 15. 

/2/  THE REQUIREMENTS FOR INDEPENDENT CANDIDATES ARE SET FORTH IN
TEX. ELECTION CODE, ART. 13.50 (1967): 

"THE NAME OF A NONPARTISAN OR INDEPENDENT CANDIDATE MAY BE PRINTED
ON THE OFFICIAL BALLOT IN THE COLUMN FOR INDEPENDENT CANDIDATES, AFTER
A WRITTEN APPLICATION SIGNED BY QUALIFIED VOTERS ADDRESSED THE PROPER
OFFICER, AS HEREIN PROVIDED, AND DELIVERED TO HIM WITHIN THIRTY DAYS
AFTER THE SECOND PRIMARY ELECTION DAY, AS FOLLOWS: 

"IF FOR AN OFFICE TO BE VOTED FOR THROUGHOUT THE STATE, THE
APPLICATION SHALL BE SIGNED BY ONE PER CENT OF THE ENTIRE VOTE OF THE
STATE CAST FOR GOVERNOR AT THE LAST PRECEDING GENERAL ELECTION, AND
SHALL BE ADDRESSED TO THE SECRETARY OF STATE. 

"IF FOR A DISTRICT OFFICE IN A DISTRICT COMPOSED OF MORE THAN ONE
COUNTY, THE APPLICATION SHALL BE SIGNED BY THREE PER CENT OF THE ENTIRE
VOTE CAST FOR GOVERNOR IN SUCH DISTRICT AT THE LAST PRECEDING GENERAL
ELECTION, AND SHALL BE ADDRESSED TO THE SECRETARY OF STATE. 

"IF FOR A DISTRICT OFFICE IN A DISTRICT COMPOSED OF ONLY ONE COUNTY
OR PART OF ONE COUNTY, THE APPLICATION SHALL BE SIGNED BY FIVE PER CENT
OF THE ENTIRE VOTE CAST FOR GOVERNOR IN SUCH DISTRICT AT THE LAST
PRECEDING GENERAL ELECTION, AND SHALL BE ADDRESSED TO THE SECRETARY OF
STATE. 

"IF FOR A COUNTY OFFICE, THE APPLICATION SHALL BE SIGNED BY FIVE PER
CENT OF THE ENTIRE VOTE CAST FOR GOVERNOR IN SUCH COUNTY AT THE LAST
PRECEDING GENERAL ELECTION, AND SHALL BE ADDRESSED TO THE COUNTY
JUDGE. 

"IF FOR A PRECINCT OFFICE, THE APPLICATION SHALL BE SIGNED BY FIVE
PER CENT OF THE ENTIRE VOTE CAST FOR GOVERNOR IN SUCH PRECINCT AT THE
LAST PRECEDING GENERAL ELECTION, AND SHALL BE ADDRESSED TO THE COUNTY
JUDGE. 

"NOTWITHSTANDING THE FOREGOING PROVISIONS, THE NUMBER OF SIGNATURES
REQUIRED ON AN APPLICATION FOR ANY DISTRICT, COUNTY, OR PRECINCT OFFICE
NEED NOT EXCEED FIVE HUNDRED. 

"NO APPLICATION SHALL CONTAIN THE NAME OF MORE THAN ONE CANDIDATE. 
NO PERSON SHALL SIGN THE APPLICATION OF MORE THAN ONE CANDIDATE FOR THE
SAME OFFICE; AND IF ANY PERSON SIGNS THE APPLICATION OF MORE THAN ONE
CANDIDATE FOR THE SAME OFFICE, THE SIGNATURE SHALL BE VOID AS TO ALL
SUCH APPLICATIONS.  NO PERSON SHALL SIGN SUCH APPLICATION UNLESS HE IS
A QUALIFIED VOTER, AND NO PERSON WHO HAS VOTED AT EITHER THE GENERAL
PRIMARY ELECTION OR THE RUNOFF PRIMARY ELECTION OF ANY PARTY SHALL SIGN
AN APPLICATION IN FAVOR OF ANYONE FOR AN OFFICE FOR WHICH A NOMINATION
WAS MADE AT EITHER SUCH PRIMARY ELECTION. 

"THE APPLICATION SHALL CONTAIN THE FOLLOWING INFORMATION WITH
RESPECT TO EACH PERSON SIGNING IT: HIS ADDRESS AND THE NUMBER OF HIS
POLL TAX RECEIPT OR EXEMPTION CERTIFICATE AND THE COUNTY OF ISSUANCE;
OR IF HE IS EXEMPT FROM PAYMENT OF A POLL TAX AND NOT REQUIRED TO
OBTAIN AN EXEMPTION CERTIFICATE, THE APPLICATION SHALL SO STATE. 

"ANY PERSON SIGNING THE APPLICATION OF AN INDEPENDENT CANDIDATE MAY
WITHDRAW AND ANNUL HIS SIGNATURE BY DELIVERING TO THE CANDIDATE AND TO
THE OFFICER WITH WHOM THE APPLICATION IS FILED (OR IS TO BE FILED, IF
NOT THEN FILED), HIS WRITTEN REQUEST, SIGNED AND DULY ACKNOWLEDGED BY
HIM, THAT HIS SIGNATURE BE CANCELLED AND ANNULLED.  THE REQUEST MUST BE
DELIVERED BEFORE THE APPLICATION IS ACTED ON, AND NOT LATER THAN THE
DAY PRECEDING THE LAST DAY FOR FILING THE APPLICATION.  UPON SUCH
WITHDRAWAL, THE PERSON SHALL BE FREE TO SIGN THE APPLICATION OF ANOTHER
CANDIDATE FOR THE SAME OFFICE.  ACTS 1951, 52ND LEG., P. 1097, CH. 492,
ART. 227; AS AMENDED ACTS 1963, 58TH LEG., P. 1017, CH. 424, 104." 

GLORIA TANNER SVANAS ARGUED THE CAUSE FOR APPELLANTS IN NO. 72 - 887
AND FILED A BRIEF FOR APPELLANT AMERICAN PARTY OF TEXAS.  MICHAEL
ANTHONY MANESS FILED A BRIEF FOR APPELLANTS TEXAS NEW PARTY ET AL. IN
NO. 72 - 887.  ROBERT W HAINSWORTH, APPELLANT PRO SE, ARGUED THE CAUSE
AND FILED BRIEFS IN NO. 72 - 942. 

JOHN L. HILL, ATTORNEY GENERAL OF TEXAS, ARGUED THE CAUSE FOR
APPELLEE IN BOTH CASES.  WITH HIM ON THE BRIEF WERE LARRY F. YORK,
FIRST ASSISTANT ATTORNEY GENERAL, AND J.C. DAVIS AND SAM L. JONES, JR.,
ASSISTANT ATTORNEYS GENERAL. 
..END :





















UNITED STATES V. EDWARDS, 415 U.S. 800 


       UNITED STATES V. EDWARDS ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 SIXTH CIRCUIT

        NO. 73 - 88.  ARGUED JANUARY 15, 1974 -- DECIDED

        MARCH 26, 1974; 474 F.2D 1206, REVERSED. 


    RESPONDENT EDWARDS WAS ARRESTED SHORTLY AFTER 11 P.M. ON MAY

  31, 1970, AND TAKEN TO JAIL.  THE NEXT MORNING, A WARRENTLESS

  SEIZURE WAS MADE OF HIS CLOTHING AND OVER HIS OBJECTION AT HIS

  LATER TRIAL, WHICH RESULTED IN CONVICTION, WAS USED AS EVIDENCE. 

  THE COURT OF APPEALS REVERSED.  THOUGH CONCEDING THE LEGALITY OF

  THE ARREST; THAT PROBABLE CAUSE EXISTED FOR BELIEVING THAT THE

  CLOTHING WOULD REVEAL INCRIMINATING EVIDENCE; AND THAT SEARCHES

  AND SEIZURES THAT COULD BE MADE AT THE TIME OF ARREST MAY BE

LEGALLY CONDUCTED WHEN THE ACCUSED ARRIVES AT THE PLACE OF

  DETENTION, THE COURT HELD THAT THE WARRANTLESS SEIZURE OF

  EDWARDS'  CLOTHING "AFTER THE ADMINISTRATIVE PROCESS AND THE

  MECHANICS OF THE ARREST (HAD) COME TO A HALT," WAS

  UNCONSTITUTIONAL.  HELD: THE SEARCH AND SEIZURE OF EDWARDS'

  CLOTHING DID NOT VIOLATE THE FOURTH AMENDMENT.  PP. 802 - 809. 

     (A) AT THE TIME EDWARDS WAS PLACED IN HIS CELL, THE NORMAL

  PROCESSES INCIDENT TO ARREST AND CUSTODY HAD NOT BEEN COMPLETED,

  AND THE DELAY IN SEIZING THE CLOTHING WAS NOT UNREASONABLE, SINCE

  AT THAT LATE HOUR NO SUBSTITUTE CLOTHING WAS AVAILABLE, AND WHEN

  THE NEXT MORNING THE POLICE WERE ABLE TO SUPPLY SUBSTITUTE

  CLOTHING AND TOOK EDWARDS' CLOTHING FOR LABORATORY ANALYSIS, THEY

 DID NO MORE THAN THEY WERE ENTITLED TO DO INCIDENT TO THE USUAL

  ARREST AND INCARCERATION.  PP. 804 - 805. 

(B) ONCE AN ACCUSED HAS BEEN LAWFULLY ARRESTED AND IS IN

CUSTODY, THE EFFECTS IN HIS POSSESSION AT THE PLACE OF DETENTION

  THAT WERE SUBJECT TO SEARCH AT THE TIME AND PLACE OF ARREST MAY

  LAWFULLY BE SEARCHED AND SEIZED WITHOUT A WARRANT EVEN AFTER A

  SUBSTANTIAL TIME LAPSE BETWEEN THE ARREST AND LATER

  ADMINISTRATIVE PROCESSING, ON THE ONE HAND, AND THE TAKING OF THE

  PROPERTY FOR USE AS EVIDENCE, ON THE OTHER.  PP. 806 - 808. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

  C.J., AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  STEWART,

  J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND

MARSHALL, JJ., JOINED, POST, P. 809. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER THE FOURTH AMENDMENT SHOULD BE EXTENDED
TO EXCLUDE FROM EVIDENCE CERTAIN CLOTHING TAKEN FROM RESPONDENT EDWARDS
WHILE HE WAS IN CUSTODY AT THE CITY JAIL APPROXIMATELY 10 HOURS AFTER
HIS ARREST. 

SHORTLY AFTER 11 P.M. ON MAY 31, 1970, RESPONDENT EDWARDS WAS
LAWFULLY ARRESTED ON THE STREETS OF LEBANON, OHIO, AND CHARGED WITH
ATTEMPTING TO BREAK INTO THAT CITY'S POST OFFICE.  /1/  HE WAS TAKEN TO
THE LOCAL JAIL AND PLACED IN A CELL.  CONTEMPORANEOUSLY OR SHORTLY
THEREAFTER, INVESTIGATION AT THE SCENE REVEALED THAT THE ATTEMPTED
ENTRY HAD BEEN MADE THROUGH A WOODEN WINDOW WHICH APPARENTLY HAD BEEN
PRIED UP WITH A PRY BAR, LEAVING PAINT CHIPS ON THE WINDOW SILL AND
WIRE MESH SCREEN.  THE NEXT MORNING, TROUSERS AND A T-SHIRT WERE
PURCHASED FOR EDWARDS TO SUBSITIUTE FOR THE CLOTHING WHICH HE HAD BEEN
WEARING AT THE TIME OF AND SINCE HIS ARREST.  HIS CLOTHING WAS THEN
TAKEN FROM HIM AND HELD AS EVIDENCE.  EXAMINATION OF THE CLOTHING
REVEALED PAINT CHIPS MATCHING THE SAMPLES THAT HAD BEEN TAKEN FROM THE
WINDOW.  THIS EVIDENCE AND HIS CLOTHING WERE RECEIVED AT TRIAL OVER
EDWARDS' OBJECTION THAT NEITHER THE CLOTHING NOR THE RESULTS OF ITS
EXAMINATION WERE ADMISSIBLE BECAUSE THE WARRANTLESS SEIZURE OF HIS
CLOTHING WAS INVALID UNDER THE FOURTH AMENDMENT. 

THE COURT OF APPEALS REVERSED.  EXPRESSLY DISAGREEING WITH TWO OTHER
COURTS OF APPEALS, /2/  IT HELD THAT ALTHOUGH THE ARREST WAS LAWFUL AND
PROBABLE CAUSE EXISTED TO BELIEVE THAT PAINT CHIPS WOULD BE DISCOVERED
ON RESPONDENT'S CLOTHING, THE WARRANTLESS SEIZURE OF THE CLOTHING
CARRIED OUT "AFTER THE ADMINISTRATIVE PROCESS AND THE MECHANICS OF THE
ARREST HAVE COME TO A HALT" WAS NEVERTHELESS UNCONSTITUTIONAL UNDER THE
FOURTH AMENDMENT.  474 F.2D 1206, 1211 (CA6 1973).  WE GRANTED
CERTIORARI, 414 U.S. 818, AND NOW CONCLUDE THAT THE FOURTH AMENDMENT
SHOULD NOT BE EXTENDED TO INVALIDATE THE SEARCH AND SEIZURE IN THE
CIRCUMSTANCES OF THIS CASE. 

THE PREVAILING RULE UNDER THE FOURTH AMENDMENT THAT SEARCHES AND
SEIZURES MAY NOT BE MADE WITHOUT A WARRANT IS SUBJECT TO VARIOUS
EXCEPTIONS.  ONE OF THEM PERMITS WARRANTLESS SEARCHES INCIDENT TO
CUSTODIAL ARRESTS, UNITED STATES V. ROBINSON, 414 U.S. 218 (1973);
CHIMEL V. CALIFORNIA, 395 U.S. 752, 755 (1969); WEEKS V. UNITED STATES,
232 U.S. 383, 392 (1914), AND HAS TRADITIONALLY BEEN JUSTIFIED BY THE
REASONABLENESS OF SEARCHING FOR WEAPONS, INSTRUMENTS OF ESCAPE, AND
EVIDENCE OF CRIME WHEN A PERSON IS TAKEN INTO OFFICIAL CUSTODY AND
LAWFULLY DETAINED.  UNITED STATES V. ROBINSON, SUPRA.  /3/ 

IT IS ALSO PLAIN THAT SEARCHES AND SEIZURES THAT COULD BE MADE ON
THE SPOT AT THE TIME OF ARREST MAY LEGALLY BE CONDUCTED LATER WHEN THE
ACCUSED ARRIVES AT THE PLACE OF DETENTION.  IF NEED BE, ABEL V. UNITED
STATES, 362 U.S. 217 (1960), SETTLED THIS QUESTION.  THERE THE
DEFENDANT WAS ARRESTED AT HIS HOTEL, BUT THE BELONGINGS TAKEN WITH HIM
TO THE PLACE OF DETENTION WERE SEARCHED THERE.  IN SUSTAINING THE
SEARCH, THE COURT NOTED THAT A VALID SEARCH OF THE PROPERTY COULD HAVE
BEEN MADE AT THE PLACE OF ARREST AND PERCEIVED LITTLE DIFFERENCE. 

"WHEN THE ACCUSED DECIDES TO TAKE THE PROPERTY WITH HIM, FOR THE
SEARCH OF IT TO OCCUR INSTEAD AT THE FIRST PLACE OF DETENTION WHEN THE
ACCUSED ARRIVES THERE, ESPECIALLY AS THE SEARCH OF PROPERTY CARRIED BY
AN ACCUSED TO THE PLACE OF DETENTION HAS ADDITIONAL JUSTIFICATIONS,
SIMILAR TO THOSE WHICH JUSTIFY A SEARCH OF THE PERSON OF ONE WHO IS
ARRESTED."  ID., AT 239.  THE COURTS OF APPEALS HAVE FOLLOWED THIS SAME
RULE, HOLDING THAT BOTH THE PERSON AND THE PROPERTY IN HIS IMMEDIATE
POSSESSION MAY BE SEARCHED AT THE STATION HOUSE AFTER THE ARREST HAS
OCCURRED AT ANOTHER PLACE AND IF EVIDENCE OF CRIME IS DISCOVERED, IT
MAY BE SEIZED AND ADMITTED IN EVIDENCE.  /4/  NOR IS THERE ANY DOUBT
THAT CLOTHING OR OTHER BELONGINGS MAY BE SEIZED UPON ARRIVAL OF THE
ACCUSED AT THE PLACE OF DETENTION AND LATER SUBJECTED TO LABORATORY
ANALYSIS OR THAT THE TEST RESULTS ARE ADMISSIBLE AT TRIAL.  /5/ 

CONCEDING ALL THIS, THE COURT OF APPEALS IN THIS CASE NEVERTHELESS
HELD THAT A WARRANT IS REQUIRED WHERE THE SEARCH OCCURS AFTER THE
ADMINISTRATIVE MECHANICS OF ARREST HAVE BEEN COMPLETED AND THE PRISONER
IS INCARCERATED.  BUT EVEN ON THESE TERMS, IT SEEMS TO US THAT THE
NORMAL PROCESSES INCIDENT TO ARREST AND CUSTODY HAD NOT BEEN COMPLETED
WHEN EDWARDS WAS PLACED IN HIS CELL ON THE NIGHT OF MAY 31.  WITH OR
WITHOUT PROBABLE CAUSE, THE AUTHORITIES WERE ENTITLED AT THAT POINT NOT
ONLY TO SEARCH EDWARDS' CLOTHING BUT ALSO TO TAKE IT FROM HIM AND KEEP
IT IN OFFICIAL CUSTODY.  THERE WAS TESTIMONY THAT THIS WAS THE STANDARD
PRACTICE IN THIS CITY.  /6/  THE POLICE WERE ALSO ENTITLED TO TAKE FROM
EDWARDS ANY EVIDENCE OF THE CRIME IN HIS IMMEDIATE POSSESSION,
INCLUDING HIS CLOTHING.  AND THE COURT OF APPEALS ACKNOWLEDGED THAT
CONTEMPORANEOUSLY WITH OR SHORTLY AFTER THE TIME EDWARDS WENT TO HIS
CELL, THE POLICE HAD PROBABLE CAUSE TO BELIEVE THAT THE ARTICLES OF
CLOTHING HE WORE WERE THEMSELVES MATERIAL EVIDENCE OF THE CRIME FOR
WHICH HE HAD BEEN ARRESTED.  474 F.2D, AT 1210.  BUT IT WAS LATE AT
NIGHT; NO SUBSTITUTE CLOTHING WAS THEN AVAILABLE FOR EDWARDS TO WEAR,
AND IT WOULD CERTAINLY HAVE BEEN UNREASONABLE FOR THE POLICE TO HAVE
STRIPPED RESPONDENT OF HIS CLOTHING AND LEFT HIM EXPOSED IN HIS CELL
THROUGHOUT THE NIGHT.  CF. UNITED STATES V. CARUSO, 358 F.2D 184, 185 -
186 (CA2), CERT. DENIED, 385 U.S. 862 (1966).  WHEN THE SUBSTITUTES
WERE PURCHASED THE NEXT MORNING, THE CLOTHING HE HAD BEEN WEARING AT
THE TIME OF ARREST WAS TAKEN FROM HIM AND SUBJECTED TO LABORATORY
ANALYSIS.  THIS WAS NO MORE THAN TAKING FROM RESPONDENT THE EFFECTS IN
HIS IMMEDIATE POSSESSION THAT CONSTITUTED EVIDENCE OF CRIME.  THIS WAS
AND IS A NORMAL INCIDENT OF A CUSTODIAL ARREST, AND REASONABLE DELAY IN
EFFECTUATING IT DOES NOT CHANGE THE FACT THAT EDWARDS WAS NO MORE
IMPOSED UPON THAN HE COULD HAVE BEEN AT THE TIME AND PLACE OF THE
ARREST OR IMMEDIATELY UPON ARRIVAL AT THE PLACE OF DETENTION.  THE
POLICE DID NO MORE ON JUNE 1 THAN THEY WERE ENTITLED TO DO INCIDENT TO
THE USUAL CUSTODIAL ARREST AND INCARCERATION 

OTHER CLOSELY RELATED CONSIDERATIONS SUSTAIN THE EXAMINATION OF THE
CLOTHING IN THIS CASE.  IT MUST BE REMEMBERED THAT ON BOTH MAY 31 AND
JUNE 1 THE POLICE HAD LAWFUL CUSTODY OF EDWARDS AND NECESSARILY OF THE
CLOTHING HE WORE.  WHEN IT BECAME APPARENT THAT THE ARTICLES OF
CLOTHING WERE EVIDENCE OF THE CRIME FOR WHICH EDWARDS WAS BEING HELD,
THE POLICE WERE ENTITLED TO TAKE, EXAMINE, AND PRESERVE THEM FOR USE AS
EVIDENCE, JSUT AS THEY ARE NORMALLY PERMITTED TO SEIZE EVIDENCE OF
CRIME WHEN IT IS LAWFULLY ENCOUNTERED.  CHIMEL V. CALIFORNIA, 395 U.S.
752 (1969); FRAZIER V. CUPP, 394 U.S. 731 (1969); WARDEN V. HAYDEN, 387
U.S. 294 (1967); KER V. CALIFORNIA, 374 U.S. 23 (1963) (PLURALITY
OPINION); ZAP V. UNITED STATES, 328 U.S. 624 (1946), VACATED ON OTHER
GROUNDS, 330 U.S. 800 (1947).  SURELY, THE CLOTHES COULD HAVE BEEN
BRUSHED DOWN AND VACUUMED WHILE EDWARDS HAD THEM ON IN THE CELL, AND IT
WAS SIMILARLY REASONABLE TO TAKE AND EXAMINE THEM AS THE POLICE DID,
PARTICULARLY IN VIEW OF THE EXISTENCE OF PROBABLE CAUSE LINKING THE
CLOTHES TO THE CRIME.  INDEED, IT IS DIFFICULT TO PERCEIVE WHAT IS
UNREASONABLE ABOUT THE POLICE EXAMINING AND HOLDING AS EVIDENCE THOSE
PERSONAL EFFECTS OF THE ACCUSED THAT THEY ALREADY HAVE IN THEIR LAWFUL
CUSTODY AS THE RESULT OF A LAWFUL ARREST. 

IN COPPER V. CALIFORNIA, 386 U.S. 58 (1967), AN ACCUSED HAD BEEN
ARRESTED FOR A NARCOTICS OFFENSE AND HIS AUTOMOBILE IMPOUNDED
PREPARATORY TO INSTITUTION OF FORFEITURE PROCEEDINGS.  THE CAR WAS
SEARCHED A WEEK LATER WITHOUT A WARRANT AND EVIDENCE SEIZED THAT WAS
LATER INTRODUCED AT THE DEFENDANT'S CRIMINAL TRIAL.  THE WARRANTLESS
SEARCH AND SEIZURE WERE SUSTAINED BECAUSE THEY WERE "CLOSELY RELATED TO
THE REASON PETITIONER WAS ARRESTED, THE REASON HIS CAR HAD BEEN
IMPOUNDED, AND THE REASON IT WAS BEING RETAINED.  . . . IT WOULD BE
UNREASONABLE TO HOLD THAT THE POLICE, HAVING TO RETAIN THE CAR IN THEIR
CUSTODY FOR SUCH A LENGTH OF TIME, HAD NO RIGHT, EVEN FOR THEIR OWN
PROTECTION, TO SEARCH IT."  ID., AT 61 - 62.  IT WAS NO ANSWER TO SAY
THAT THE POLICE COULD HAVE OBTAINED A SEARCH WARRANT, FOR THE COURT
HELD THE TEST TO BE, NOT WHETHER IT WAS REASONABLE TO PROCURE A SEARCH
WARRANT, BUT WHETHER THE SEARCH ITSELF WAS REASONABLE, WHICH IT WAS. 
ID., AT 62.  UNITED STATES V. CARUSO, SUPRA, EXPRESSES SIMILAR VIEWS. 
THERE, DEFENDANTS CLOTHES WERE NOT TAKEN UNTIL SIX HOURS AFTER HIS
ARRIVAL AT A PLACE OF DETENTION.  THE COURT OF APPEALS PROPERLY HELD
THAT NO WARRANT WAS REQUIRED: 

"HE AND HIS CLOTHES WERE CONSTANTLY IN CUSTODY FROM THE MOMENT OF
HIS ARREST, AND THE INSPECTION OF HIS CLOTHES AND THE HOLDING OF THEM
FOR USE IN EVIDENCE WERE, UNDER THE CIRCUMSTANCES, REASONABLE AND
PROPER."  358 F.2D, AT 185 (CITATIONS OMITTED). 

CARUSO IS TYPICAL OF MOST CASES IN THE COURTS OF APPEALS THAT HAVE
LONG SINCE CONCLUDED THAT ONCE THE ACCUSED IS LAWFULLY ARRESTED AND IS
IN CUSTODY, THE EFFECTS IN HIS POSSESSION AT THE PLACE OF DETENTION
THAT WERE SUBJECT TO SEARCH AT THE TIME AND PLACE OF HIS ARREST MAY
LAWFULLY BE SEARCHED AND SEIZED WITHOUT A WARRANT EVEN THOUGH A
SUBSTANTIAL PERIOD OF TIME ELAPSED BETWEEN THE ARREST AND SUBSEQUENT
ADMINISTRATIVE PROCESSING, ON THE ONE HAND, AND THE TAKING OF THE
PROPERTY FOR USE AS EVIDENCE, ON THE OTHER.  THIS IS TRUE WHERE THE
CLOTHING OR EFFECTS ARE IMMEDIATELY SEIZED UPON ARRIVAL AT THE JAIL,
HELD UNDER THE DEFENDANT'S NAME IN THE "PROPERTY ROOM"  OF THE JAIL,
AND AT A LATER TIME SEARCHED AND TAKEN FOR USE AT THE SUBSEQUENT
CRIMINAL TRIAL.  /7/  THE RESULT IS THE SAME WHERE THE PROPERTY IS NOT
PHYSICALLY TAKEN FROM THE DEFENDANT UNTIL SOMETIME AFTER HIS
INCARCERATION.  /8/ 

IN UPHOLDING THIS SEARCH AND SEIZURE, WE DO NOT CONCLUDE THAT THE
WARRANT CLAUSE OF THE FOURTH AMENDMENT IS NEVER APPLICABLE TO
POSTARREST SEIZURES OF THE EFFECTS OF AN ARRESTEE.  /9/  BUT WE DO
THINK THAT THE COURT OF APPEALS FOR THE FIRST CIRCUIT CAPTURED THE
ESSENCE OF SITUATIONS LIKE THIS WHEN IT SAID IN UNITED STATES V. DELEO,
422 F.2D 487, 493 (1970) (FOOTNOTE OMITTED): 

"WHILE THE LEGAL ARREST OF A PERSON SHOULD NOT DESTROY THE PRIVACY
OF HIS PREMISES, IT DOES -- FOR AT LEAST A REASONABLE TIME AND TO A
REASONABLE EXTENT --, TAKE HIS OWN PRIVACY OUT OF THE REALM OF
PROTECTION FROM POLICE INTEREST IN WEAPONS, MEANS OF ESCAPE, AND
EVIDENCE." 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

              SO ORDERED. 

/1/  RESPONDENT'S ALLEGED CONFEDERATE, WILLIAM T. LIVESAY, WAS
CORESPONDENT IN THIS CASE, BUT DIED AFTER THE PETITION FOR CERTIORARI
WAS GRANTED.  WE THEREFORE VACATE THE JUDGMENT AS TO HIM AND REMAND THE
CASE TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE INDICTMENT. 
DURHAM V. UNITED STATES, 401 U.S. 481 (1971). 

/2/  THE COURT STATED THAT IT COULD NOT AGREE WITH UNITED STATES V.
WILLIAMS, 416 F.2D 4 (CA5 1969), AND UNITED STATES V. CARUSO, 358 F.2D
184 (CA2), CERT. DENIED, 385 U.S. 862 (1966). 

/3/  "A CUSTODIAL ARREST OF A SUSPECT BASED ON PROBABLE CAUSE IS A
REASONABLE INTRUSION UNDER THE FOURTH AMENDMENT; THAT INTRUSION BEING
LAWFUL, A SEARCH INCIDENT TO THE ARREST REQUIRES NO ADDITIONAL
JUSTIFICATION.  IT IS THE FACT OF THE LAWFUL ARREST WHICH ESTABLISHES
THE AUTHORITY TO SEARCH, AND WE HOLD THAT IN THE CASE OF A LAWFUL
CUSTODIAL ARREST A FULL SEARCH OF THE PERSON IS NOT ONLY AN EXCEPTION
TO THE WARRANT REQUIREMENT OF THE FOURTH AMENDMENT, BUT IS ALSO A
'REASONABLE' SEARCH UNDER THAT AMENDMENT."  UNITED STATES V. ROBINSON,
SUPRA, AT 235. 

/4/  UNITED STATES V. MANAR, 454 F.2D 342 (CA7 1971); UNITED STATES
V. GONZALEZ-PEREZ, 426 F.2D 1283 (CA5 1970); UNITED STATES V. DELEO,
422 F.2D 487 (CA1 1970); UNITED STATES V. WILLIAMS, SUPRA; UNITED
STATES V. MILES, 413 F.2D 34 (CA3 1969); RAY V. UNITED STATES, 412 F.2D
1052 (CA9 1969); WESTOVER V. UNITED STATES, 394 F.2D 164 (CA9 1968);
UNITED STATES V. FRANKENBERRY, 387 F.2D 337 (CA2 1967); EVALT V. UNITED
STATES, 382 F.2D 424 (CA9 1967); MALONE V. CROUSE, 380 F.2D 741 (CA10
1967); COTTON V. UNITED STATES, 371 F.2D 385 (CA9 1967); MILLER V.
EKLUND, 364 F.2D 976 (CA9 1966); HANCOCK V. NELSON, 363 F.2D 249 (CA1
1966); GOLLIHER V. UNITED STATES, 362 F.2D 594 (CA8 1966); RODGERS V.
UNITED STATES, 362 F.2D 358 (CA8), CERT. DENIED, 385 U.S. 993 (1966);
UNITED STATES V. CARUSO, SUPRA; WHALEM V. UNITED STATES, 120 U.S. APP.
D.C. 331, 346 F.2D 812, CERT. DENIED, 382 U.S. 862 (1965); GRILLO V.
UNITED STATES, 336 F.2D 211 (CA1 1964), CERT. DENIED SUB NOM. GORIN V.
UNITED STATES, 379 U.S. 971 (1965); ROBINSON V. UNITED STATES, 109 U.S.
APP. D.C. 22, 283 F.2D 508 (1960); BASKERVILLE V. UNITED STATES, 227
F.2D 454 (CA10 1955). 

/5/  SEE, E.G., UNITED STATES V. CARUSO, SUPRA; UNITED STATES V.
WILLIAMS, SUPRA; GOLLIHER V. UNITED STATES, SUPRA; WHALEM V. UNITED
STATES, SUPRA, ROBINSON V. UNITED STATES, SUPRA; EVALT V. UNITED
STATES, SUPRA; HANCOCK V. NELSON, SUPRA. 

/6/  APP. 6.  HISTORICAL EVIDENCE POINTS TO THE ESTABLISHED AND
ROUTINE CUSTOM OF PERMITTING A JAILER TO SEARCH THE PERSON WHO IS BEING
PROCESSED FOR CONFINEMENT UNDER HIS CUSTODY AND CONTROL.  SEE, E.G., T.
GARDNER FOR & V. MANIAN, PRINCIPLES AND CASES OF THE LAW OF ARREST,
SEARCH, AND SEIZURE 200 (1974); E. FISHER, SEARCH AND SEIZURE 71
(1970).  WHILE "(A) RULE OF PRACTICE MUST NOT BE ALLOWED . . . TO
PREVAIL OVER A CONSTITUTIONAL RIGHT," GOULED V. UNITED STATES, 255 U.S.
298, 313 (1921), LITTLE DOUBT HAS EVER BEEN EXPRESSED ABOUT THE
VALIDITY OR REASONABLENESS OF SUCH SEARCHES INCIDENT TO INCARCERATION. 
T. TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 50 (1969). 
/7/  SEE EVALT V. UNITED STATES, 382 F.2D 424 (CA9 1967); WESTOVER V.
UNITED STATES, 394 F.2D 164 (CA9 1968); BASKERVILLE V. UNITED STATES,
227 F.2D 454 (CA10 1955).  IN BASKERVILLE, THE EFFECTS WERE TAKEN FOR
SAFEKEEPING ON DECEMBER 23 BUT RE-EXAMINED AND TAKEN AS EVIDENCE ON
JANUARY 6.  BRETT V. UNITED STATES, 412 F.2D 401 (CA5 1969), IS
CONTRA.  THERE THE DEFENDANT'S CLOTHES WERE TAKEN FROM HIM SHORTLY
AFTER ARRIVAL AT THE JAIL, AS WAS THE CUSTOM, AND HELD IN THE PROPERTY
ROOM OF THE JAIL.  THREE DAYS LATER THE CLOTHING WAS SEARCHED AND
IMCRIMINATING EVIDENCE FOUND.  A DIVIDED PANEL OF THE COURT OF APPEALS
HELD THE EVIDENCE INADMISSIBLE FOR WANT OF A WARRANT AUTHORIZING THE
SEARCH. 

/8/  HANCOCK V. NELSON, 363 F.2D 249 (CA1 1966); MALONE V. CROUSE,
380 F.2D 741 (CA10 1967); UNITED STATES V. CARUSO, 358 F.2D 184 (CA2
1966).  IN HANCOCK, THE DEFENDANT WAS FIRST TAKEN INTO CUSTODY AT 12:51
A.M.  HIS CLOTHES WERE TAKEN AT 2 P.M. ON THE SAME DAY, TWO HOURS AFTER
PROBABLE CAUSE TO DO SO EVENTUATED. 

/9/  HOLDING THE WARRANT CLAUSE INAPPLICABLE IN THE CIRCUMSTANCES
PRESENT HERE DOES NOT LEAVE LAW ENFORCEMENT OFFICIALS SUBJECT TO NO
RESTRAINTS.  THIS TYPE OF POLICE CONDUCT "MUST (STILL) BE TESTED BY THE
FOURTH AMENDMENT'S GENERAL PROSCRIPTION AGAINST UNREASONABLE SEARCHES
AND SEIZURES."  TERRY V. OHIO, 392 U.S. 1, 20 (1968).  BUT THE COURT OF
APPEALS HERE CONCEDED THAT PROBABLE CAUSE EXISTED FOR THE SEARCH AND
SEIZURE OF RESPONDENT'S CLOTHING , AND RESPONDENT COMPLAINS ONLY THAT A
WARRANT SHOULD HAVE BEEN SECURED.  WE THUS HAVE NO OCCASION TO EXPRESS
A VIEW CONCERNING THOSE CIRCUMSTANCES SURROUNDING CUSTODIAL SEARCHES
INCIDENT TO INCARCERATION WHICH MIGHT "VIOLATE THE DICTATES OF REASON
EITHER BECAUSE OF THEIR NUMBER OR THEIR MANNER OF PERPETRATION." 
CHARLES V. UNITED STATES, 278 F.2D 386, 389 (CA9), CERT. DENIED, 364
U.S. 831 (1960).  CF. SCHMERBER V. CALIFORNIA, 384 U.S. 757 (1966);
ROCHIN V. CALIFORNIA, 342 U.S. 165 (1952). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

THE COURT SAYS THAT THE QUESTION BEFORE US "IS WHETHER THE FOURTH
AMENDMENT SHOULD BE EXTENDED" TO PROHIBIT THE WARRANTLESS SEIZURE OF
EDWARDS' CLOTHING.  I THINK, ON THE CONTRARY, THAT THE REAL QUESTION IN
THIS CASE IS WHETHER THE FOURTH AMENDMENT IS TO BE IGNORED.  FOR IN MY
VIEW THE JUDGMENT OF THE COURT OF APPEALS CAN BE REVERSED ONLY BY
DISREGARDING ESTABLISHED FOURTH AMENDMENTS PRINCIPLES FIRMLY EMBODIED
IN MANY PREVIOUS DECISIONS OF THIS COURT. 

AS THE COURT HAS REPEATEDLY EMPHASIZED IN THE PAST, "THE MOST BASIC
CONSTITUTIONAL RULE IN THIS AREA IS THAT 'SEARCHES CONDUCTED OUTSIDE
THE JUDICIAL PROCESS, WITHOUT PRIOR APPROVAL BY JUDGE OR MAGISTRATE,
ARE PER SE UNREASONABLE UNDER THE FOURTH AMENDMENT -- SUBJECT ONLY TO A
FEW SPECIFICALLY ESTABLISHED AND WELL-DELINEATED EXCEPTIONS.'" 
COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 454 - 455; KATZ V. UNITED
STATES, 389 U.S. 347, 357.  SINCE IT IS CONCEDED HERE THAT THE SEIZURE
OF EDWARDS' CLOTHING WAS NOT MADE PURSUANT TO A WARRANT, THE QUESTION
BECOMES WHETHER THE GOVERNMENT HAS MET ITS BURDEN OF SHOWING THAT THE
CIRCUMSTANCES OF THIS SEIZURE BROUGHT IT WITHIN ONE OF THE "JEALOUSLY
AND CAREFULLY DRAWN /1/  EXCEPTIONS TO THE WARRANT REQUIREMENT. 
HC#809 

THE COURT FINDS A WARRANT UNNECESSARY IN THIS CASE BECAUSE OF THE
CUSTODIAL ARREST OF THE RESPONDENT.  IT IS OF COURSE WELL SETTLED THAT
THE FOURTH AMENDMENT PERMITS A WARRANTLESS SEARCH OR SEIZURE INCIDENT
TO A CONSTITUTIONALLY VALID CUSTODIAL ARREST.  UNITED STATES V.
ROBINSON, 414 U.S. 218; CHIMEL V. CALIFORNIA, 395 U.S. 752.  BUT THE
MERE FACT OF AN ARREST DOES NOT ALLOW THE POLICE TO ENGAGE IN
WARRANTLESS SEARCHES OF UNLIMITED GEOGRAPHIC OR TEMPORAL SCOPE. 
RATHER, THE SEARCH MUST BE SPATIALLY LIMITED TO THE PERSON OF THE
ARRESTEE AND THE AREA WITHIN HIS REACH, CHIMEL V. CALIFORNIA, SUPRA,
AND MUST, AS TO TIME, BE "SUBSTANIALLY CONTEMPORANEOUS WITH THE
ARREST," STONER V. CALIFORNIA, 37 U.S. 483, 486; PRESTON V. UNITED
STATES, 376 U.S. 364, 367 - 368. 

UNDER THE FACTS OF THIS CASE, I AM UNABLE TO AGREE WITH THE COURT'S
HOLDING THAT THE SEARCH WAS "INCIDENT" TO EDWARDS' CUSTODIAL ARREST. 
THE SEARCH HERE OCCURRED FULLY 10 HOURS AFTER HE WAS ARRESTED, AT A
TIME WHEN THE ADMINISTRATIVE PROCESSING AND MECHANICS OF ARREST HAD
LONG SINCE COME TO AN END.  HIS CLOTHES WERE NOT SEIZED AS PART OF AN
"INVENTORY" OF A PRISONER'S EFFECTS, NOR WERE THEY TAKEN PURSUANT TO A
ROUTINE EXCHANGE OF CIVILIAN CLOTHES FOR JAIL GARB.  /2/  AND THE
CONSIDERATIONS THAT TYPICALLY JUSTIFY A WARRANTLESS SEARCH INCIDENT TO
A LAWFUL ARREST WERE WHOLLY ABSENT HERE.  AS MR. JUSTICE BLACK STATED
FOR A UNANIMOUS COURT IN PRESTON V. UNITED STATES, 376 U.S., AT 367: 

"THE RULE ALLOWING CONTEMPORANEOUS SEARCHES IS JUSTIFIED, FOR
EXAMPLE, BY THE NEED TO SEIZE WEAPONS AND OTHER THINGS WHICH MIGHT BE
USED TO ASSAULT AN OFFICER OR EFFECT AN ESCAPE, AS WELL AS BY THE NEED
TO PREVENT THE DESTRUCTION OF EVIDENCE OF THE CRIME -- THINGS WHICH
MIGHT EASILY HAPPEN WHERE THE WEAPON OR EVIDENCE IS ON THE ACCUSED'S
PERSON OR UNDER HIS IMMEDIATE CONTROL.  BUT THESE JUSTIFICATIONS ARE
ABSENT WHERE A SEARCH IS REMOTE IN TIME OR PLACE FROM THE ARREST." 
/3/ 

ACCORDINGLY, I SEE NO JUSTIFICATION FOR DISPENSING WITH THE WARRANT
REQUIREMENT HERE.  THE POLICE HAD AMPLE TIME TO SEEK A WARRANT, AND NO
EXIGENT CIRCUMSTANCES WERE PRESENT TO EXCUSE THEIR FAILURE TO DO SO.
UNLESS THE EXCEPTIONS TO THE WARRANT REQUIREMENT ARE TO BE "ENTHRONED
INTO THE RULE," UNITED STATES, V. RABINOWITZ, 339 U.S. 56, 80
(FRANKFURTER, J., DISSENTING), THIS IS PRECISELY THE SORT OF SITUATION
WHERE THE FOURTH AMENDMENT REQUIRES A MAGISTRATE'S PRIOR APPROVAL FOR A
SEARCH. 

THE COURT SAYS THAT THE RELEVANT QUESTION IS "NOT WHETHER IT WAS
REASONABLE TO PROCURE A SEARCH WARRANT, BUT WHETHER THE SEARCH ITSELF
WAS REASONABLE."  ANTE, AT 807.  PRECISELY SUCH A VIEW, HOWEVER, WAS
EXPLICITLY REJECTED IN CHIMEL V. CALIFORNIA, SUPRA, AT 764 - 765, WHERE
THE COURT CHARACTERIZED THE ARGUMENT AS "FOUNDED ON LITTLE MORE THAN A
SUBJECTIVE VIEW REGARDING THE ACCEPTABILITY OF CERTAIN SORTS OF POLICE
CONDUCT, AND NOT ON CONSIDERATIONS RELEVANT TO FOURTH AMENDMENT
INTERESTS."  AS THEY WERE IN CHIMEL, THE WORDS OF MR. JUSTICE
FRANKFURTER ARE AGAIN MOST RELEVANT HERE: 

   "TO SAY THAT THE SEARCH MUST BE REASONABLE IS TO REQUIRE SOME

  CRITERION OF REASON.  IT IS NO GUIDE AT ALL EITHER FOR A JURY OR

  FOR DISTRICT JUDGES OR THE POLICE TO SAY THAT AN 'UNREASONABLE

  SEARCH' IS FORBIDDEN -- THAT THE SEARCH MUST BE REASONABLE.  WHAT

  IS THE TEST OF REASON WHICH MAKES A SEARCH REASONABLE?  THE TEST

  IS THE REASON UNDERLYING AND EXPRESSED BY THE FOURTH AMENDMENT:

  THE HISTORY AND THE EXPERIENCE WHICH IT EMBODIES AND THE

  SAFEGUARDS AFFORDED BY IT AGAINST THE EVILS TO WHICH IT WAS A

  RESPONSE.  THERE MUST BE A WARRANT TO PERMIT SEARCH, BARRING ONLY

  INHERENT LIMITATIONS UPON THAT REQUIREMENT WHEN THERE IS A GOOD

  EXCUSE FOR NOT GETTING A SEARCH WARRANT . . . ."  UNITED STATES,

  V. RABINOWITZ, SUPRA, AT 83 (DISSENTING OPINION). 

THE INTRUSION HERE WAS HARDLY A SHOCKING ONE, AND IT CANNOT BE SAID
THAT THE POLICE ACTED IN BAD FAITH.  THE FOURTH AMENDMENT, HOWEVER, WAS
NOT DESIGNED TO APPLY ONLY TO SITUATIONS WHERE THE INTRUSION IS MASSIVE
AND THE VIOLATION OF PRIVACY SHOCKLINGLY FLAGRANT.  RATHER, AS THE
COURT'S CLASSIC ADMONITION IN BOYD V. UNITED STATES, 116 U.S. 616, 635,
PUT THE MATTER: 

"IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS MILDEST AND LEAST
REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET
THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT APPROCHES AND SLIGHT
DEVIATIONS FROM LEGAL MODES OF PROCEDURE.  THIS CAN ONLY BE OBVIATED BY
ADHERING TO THE RULE THAT CONSTITUTIONAL PROVISIONS FOR THE SECURITY OF
PERSON AND PROPERTY SHOULD BE LITERALLY CONSTRUED.  A CLOSE AND LITERAL
CONSTRUCTION DEPRIVES THEM OF HALF THEIR EFFICIENCY, AND LEADS TO
GRADUAL DEPRECIATION OF THE RIGHT, AS IF IT CONSISTED MORE IN SOUND
THAN IN SUBSTANCE.  IT IS THE DUTY OF THE COURTS TO BE WATCHFUL FOR THE
CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST ANY STEALTHY
ENCROACHMENTS THEREON." 

BECAUSE I BELIEVE THAT THE COURT TODAY UNJUSTIFIABLY DEPARTS FROM
WELL-SETTLED CONSTITUTIONAL PRINCIPLES, I RESPECTFULLY DISSENT. 

/1/  JONES V. UNITED STATES, 357 U.S. 493, 499. 

/2/  THE GOVERNMENT CONCEDED AT ORAL ARGUMENT THAT THE SEIZURE OF
THE RESPONDENT'S CLOTHING WAS NOT A MATTER OF ROUTINE JAIL PROCEDURE,
BUT WAS UNDERTAKEN SOLELY FOR THE PURPOSE OF SEARCHING FOR THE
INCRIMINATING PAINT CHIPS. 

NO CONTENTION IS MADE THAT THE WARRANTLESS SEIZURES OF THE CLOTHES
WAS NECESSITATED BY THE EXIGENCIES OF MAINTAINING DISCIPLINE OR
SECURITY WITHIN THE JAIL SYSTEM.  THERE IS THUS NO OCCASION TO CONSIDER
THE LEGITIMACY OF WARRANTLESS SEARCHES OR SEIZURES IN A PENAL
INSTITUTION BASED UPON THAT QUITE DIFFERENT RATIONALE. 

/3/  NO CLAIM IS MADE THAT THE POLICE FEARED THAT EDWARDS EITHER
POSSESSED A WEAPON OR WAS PLANNING TO DESTROY THE PAINT CHIPS ON HIS
CLOTHING.  INDEED, THE GOVERNMENT HAS NOT EVEN SUGGESTED THAT HE WAS
AWARE OF THE PRESENCE OF THE PAINT CHIPS ON HIS CLOTHING. 

EDWARD R. KORMAN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
PETERSEN, AND JEROME M. FEIT. 

THOMAS R. SMITH, BY APPOINTMENT OF THE COURT, 414 U.S. 1125, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

FRANK G. CARRINGTON, JR., WAYNE W. SCHMIDT, FRED E. INBAU, GLEN
MURPHY, PAUL KELLER, AND COURTNEY A. EVANS FILED A BRIEF FOR AMERICANS
FOR EFFECTIVE LAW ENFORCEMENT, INC., ET AL. AS AMICI CURIAE URGING
REVERSAL. 
..END :





















HUDDLESTON V. UNITED STATES, 415 U.S. 814 


       HUDDLESTON V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

        NO. 72 - 1076.  ARGUED NOVEMBER 7, 1973 -- DECIDED

        MARCH 26, 1974; 472 F.2D 592, AFFIRMED. 


    PETITIONER, A PREVIOUSLY CONVICTED FELON, WAS CONVICTED OF

  VIOLATING 18 U.S.C. 922(A)(6), A PART OF THE GUN CONTROL ACT OF

  1968, BY FALSELY STATING, IN CONNECTION WITH THE REDEMPTION FROM

  A PAWNBROKER OF THREE GUNS PETITIONER HAD PAWNED, THAT HE HAD NOT

  BEEN CONVICTED OF A CRIME PUNISHABLE BY IMPRISONMENT FOR MORE

  THAN A YEAR.  THE PAWNBROKER WAS A FEDERALLY LICENSED FIREARMS

  DEALER.  THE COURT OF APPEALS AFFIRMED.  SECTION 922(A)(6) MAKES

  IT AN OFFENSE KNOWINGLY TO MAKE A FALSE STATEMENT "IN CONNECTION

  WITH THE ACQUISITION . . . OF ANY FIREARM . . . FROM A . . .

  LICENSED DEALER"  AND "INTENDED OR LIKELY TO DECEIVE SUCH . . .

  DEALER . . . WITH RESPECT TO ANY FACT MATERIAL TO THE LAWFULNESS

  OF THE SALE OR OTHER DISPOSITION OF SUCH FIREARM . . . ."  HELD:

  SECTION 922(A)(6) APPLIES TO THE REDEMPTION OF A FIREARM FROM A

  PAWNSHOP.  PP. 819 - 833. 

     (A) PETITIONER'S CONTENTION THAT THE STATUTE COVERS ONLY A

  SALE-LIKE TRANSACTION IS WITHOUT MERIT, SINCE "ACQUISITION" AS

  USED IN 922(A)(6) CLEARLY INCLUDES ANY PERSON, BY DEFINITION, WHO

  "COMES INTO POSSESSION, CONTROL, OR POWER OF DISPOSAL" OF A

  FIREARM.  MOREOVER, THE STATUTORY TERMS "ACQUISITION" AND "SALE

  OR OTHER DISPOSITION"  ARE CORRELATIVES.  IT IS REASONABLE TO

  CONCLUDE THAT A PAWNBROKER MIGHT "DISPOSE" OF A FIREARM THROUGH A

  REDEMPTIVE TRANSACTION.  FINALLY, CONGRESS EXPLICITLY INCLUDED

  PAWNBROKERS IN THE GUN CONTROL ACT, SPECIFICALLY MENTIONED PLEDGE

  AND PAWN TRANSACTIONS INVOLVING FIREARMS, AND DID NOT INCLUDE

  THEM IN THE STATUTORY EXEMPTIONS.  PP. 819 - 823. 

     (B) THAT PAWNSHOP FIREARMS REDEMPTIONS ARE COVERED BY THE

  CHALLENGED PROVISION COMPORTS WITH THE LEGISLATIVE HISTORY OF

  TITLE IV OF THE OMNIBUS CRIME CONTROL ADN SAFE STREETS ACT OF

  1968 AND THE GUN CONTROL ACT OF 1968, WHICH ARE AIMED AT

  CONTROLLING ACCESS TO WEAPONS BY THOSE WHOSE POSSESSION THEREOF

  IS CONTRARY TO THE PUBLIC INTEREST, THROUGH A REGULATORY SCHEME

  FOCUSING ON THE FEDERALLY LICENSED FIREARMS DEALER.  PP. 824 -

829. 

     (C) SECTION 922(A)(6) CONTAINS NO AMBIGUITY WARRANTING A
NARROW

  CONSTRUCTION IN PETITIONER'S FAVOR, AND APPLICATION OF THE

  STATUTE TO THE PAWN REDEMPTIONS HERE RAISES NO ISSUE OF

  CONSTITUTIONAL DIMENSION.  PP. 830 - 833. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION,

  POST, P. 833. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE ISSUE WHETHER 18 U.S.C. 922(A)(6), /1/
DECLARING THAT IT IS UNLAWFUL KNOWINGLY TO MAKE A FALSE STATEMENT "IN
CONNECTION WITH THE ACQUISITION . . . OF ANY FIREARM . . . FROM A . . .
LICENSED DEALER," COVERS THE REDEMPTION OF A FIREARM FROM A PAWNSHOP. 

        I 

ON OCTOBER 6, 1971, PETITIONER, WILLIAM C. HUDDLESTON, JR., PAWNED
HIS WIFE'S WINCHESTER 30 - 30-CALIBER RIFLE FOR $25 AT A PAWNSHOP IN
OXNARD, CALIFORNIA.  ON THE FOLLOWING OCTOBER 15 AND ON DECEMBER 28, HE
PAWNED AT THE SAME SHOP TWO OTHER FIREARMS, A RUSSIAN 7.62-CALIBER
RIFLE AND A REMINGTON .22-CALIBER RIFLE, BELONGING TO HIS WIFE.  FOR
THESE HE RECEIVED LOANS OF $10 AND $15, RESPECTIVELY.  THE OWNER OF THE
PAWNSHOP WAS A FEDERALLY LICENSED FIREARMS DEALER. 

SOME WEEKS LATER, ON FEBRUARY 1, 1972, AND ON MARCH 10, HUDDLESTON
REDEEMED THE WEAPONS.  IN CONNECTION WITH EACH OF THE REDEMPTIONS, THE
PAWNBROKER REQUIRED PETITIONER TO COMPLETE TREASURY FORM 4473, ENTITLED
"FIREARMS TRANSACTION RECORD."  THIS IS A FORM USED IN THE ENFORCEMENT
OF THE GUN CONTROL PROVISION OF TITLE IV OF THE ONMIBUS CRIME CONTROL
AND SAFE STREETS ACT OF 1968, PUB. L. 90 - 351, 82 STAT. 225, AS
AMENDED BY THE GUN CONTROL ACT OF 1968, PUB. L. 90 - 618, 82 STAT.
1213, OF WHICH THE ABOVE-CITED 18 U.S.C. 922(A)(6) IS A PART.  QUESTION
8B OF THE FORM IS: 

     "HAVE YOU BEEN CONVICTED IN ANY COURT OF A CRIME PUNISHABLE BY

  IMPRISONMENT FOR TERM EXCEEDING ONE YEAR"  (NOTE: THE ACTUAL

  SENTENCE GIVEN BY THE JUDGE DOES NOT MATTER -- A YES ANSWER IS

  NECESSARY IF THE JUDGE COULD HAVE GIVEN A SENTENCE OF MORE THAN

  ONE YEAR.)" 

THE QUESTION IS DERIVED FROM THE STATUTORY PROHIBITION AGAINST A
DEALER'S SELLING OR OTHERWISE DISPOSING OF A FIREARM TO ANY PERSON WHO
"HAS BEEN CONVICTED IN ANY COURT OF . . . A CRIME PUNISHABLE BY
IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR."  18 U.S.C. 922(D)(1).  /2/
PETITIONER ANSWERED "NO" TO QUESTION 8B ON EACH OF THE THREE FORMS
4473.  HE THEN AFFIXED HIS SIGNATURE TO EACH FORM'S CERTIFICATION THAT
THE ANSWERS WERE TRUE AND CORRECT, THAT HE UNDERSTOOD THAT A PERSON WHO
ANSWERS ANY OF THE QUESTIONS IN THE AFFIRMATIVE IS PROHIBITED BY
FEDERAL LAW FROM "PURCHASING AND/OR POSSESSING A FIREARM," AND THAT HE
ALSO UNDERSTOOD THAT THE MAKING OF ANY FALSE STATEMENT WITH RESPECT TO
THE TRANSACTION IS A CRIME PUNISHABLE AS A FELONY. 

IN FACT, HUDDLESTON, SIX YEARS EARLIER, AHD BEEN CONVICTED IN A
CALIFORNIA STATE COURT FOR WRITING CHECKS WITHOUT SUFFICIENT FUNDS, AND
OFFENSE PUNISHABLE UNDER CALIFORNIA LAW BY A MAXIMUM TERM OF 14 YEARS. 
/3/  THIS FACT, IF REVEALED TO THE PAWNSHOP PROPRIETOR, WOULD HAVE
PRECLUDED THE PROPRIETOR FROM SELLING OR OTHERWISE DISPOSING OF ANY OF
THE RIFLES TO THE PETITIONER BECAUSE OF THE PROSCRIPTION IN 18 U.S.C.
822(D)(1). 

HUDDLESTON WAS CHARGED IN A THREE-COUNT INDICTMENT WITH VIOLATING 18
U.S.C. 922(A)(6) AND 924(A).  /4/  HE MOVED TO DISMISS THE INDICTMENT,
IN PART ON THE GROUND THAT 922(A)(6) WAS NEVER INTENDED TO APPLY, AND
SHOULD NOT APPLY, TO A PAWNOR'S REDEMPTION OF A WEAPON HE HAD PAWNED. 
THIS MOTION WAS DENIED.  PETITIONER THEN PLEADED NOT GUILTY AND WAIVED
A JURY TRIAL.  HC#817 

THE GOVERNMENT'S EVIDENCE CONSISTED PRIMARILY OF THE THREE TREASURY
FORMS 4473 HUDDLESTON HAD SIGNED; THE RECORD OF HIS EARLIER CALIFORNIA
FELONY CONVICTION; AND THE PAWNBROKER'S FEDERAL LICENSE.  A GOVERNMENT
AGENT ALSO TESTIFIED THAT PETITIONER, AFTER BEING ARRESTED AND ADVISED
OF HIS RIGHTS, MADE STATEMENTS ADMITTING THAT HE HAD KNOWN, WHEN
FILLING OUT THE FORMS, THAT HE WAS A FELON AND THAT HE HAD LIED EACH
TIME WHEN HE ANSWERED QUESTION 8B IN THE NEGATIVE. 

HUDDLESTON TESTIFIED IN HIS OWN DEFENSE.  HE STATED THAT HE DID NOT
KNOWINGLY MAKE A FALSE STATEMENT; THAT HE DID NOT READ THE FORM AND
SIMPLY ANSWERED "NO" UPON PROMPTING FROM THE PAWNBROKER; AND THAT HE
WAS UNAWARE THAT HIS CALIFORNIA CONVICTION WAS PUNISHABLE BY A TERM
EXCEEDING ONE YEAR.  /5/ 

THE DISTRICT JUDGE FOUND THE PETITIONER GUILTY ON ALL COUNTS.  HE
SENTENCED HUDDLESTON TO THREE CONCURRENT THREE-YEAR TERMS.  THE
SENTENCES WERE SUSPENDED, HOWEVER, EXCEPT FOR 20 DAYS TO BE SERVED ON
WEEKENDS.  THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, BY
A DIVIDED VOTE, AFFIRMED THE CONVICTION.  472 F.2D 592 (1973).  THE
DISSENTING JUDGE AGREED THAT THE STATUTE WAS CONSTITUTIONAL AS APPLIED,
BUT CONCLUDED THAT WHAT HUDDLESTON DID WAS TO "REACQUIRE" THE RIFLES,
AND THAT "REACQUIRE" IS NOT NECESSARILY INCLUDED WITHIN THE STATUTE'S
TERM "ACQUIRE."  ID., AT 593.  WE GRANTED CERTIORARI, 411 U.S. 930
(1973), TO RESOLVE AN EXISTING CONFLICT AMONG THE CIRCUITS ON THE ISSUE
WHETHER THE PROHIBITION AGAINST MAKING FALSE STATEMENTS IN CONNECTION
WITH THE ACQUISITION OF A FIREARM COVERS A FIREARM'S REDEMPTION FROM A
PAWNSHOP.  /6/

        II 

PETITIONER'S ASSAULT ON THE STATUTE UNDER WHICH HE WAS CONVICTED IS
TWO PRONGED.  FIRST, IT IS ARGUED THAT BOTH THE STATUTE'S LANGUAGE AND
ITS LEGISLATIVE HISTORY INDICATE THAT CONGRESS DID NOT INTEND A
PAWNSHOP REDEMPTION OF A FIREARM TO BE AN "ACQUISITION" COVERED BY THE
STATUTE.  SECOND, IT IS SAID THAT EVEN IF CONGRESS DID INTEND A
PAWNSHOP REDEMPTION TO BE A COVERED "ACQUISITION," THE STATUTE IS SO
AMBIGUOUS THAT ITS CONSTRUCTION IS CONTROLLED BY THE MAXIMUM THAT
AMBIGUITY IN A CRIMINAL STATUTE IS TO BE RESOLVED IN FAVOR OF THE
DEFENDANT. 

WE TURN FIRST TO THE LANGUAGE AND STRUCTURE OF THE ACT.  REDUCED TO
A MINIMUM, 922(A)(6) RELATES TO ANY FALSE STATEMENT MADE "IN CONNECTION
WITH THE ACQUISITION . . . OF ANY FIREARM" FROM A LICENSED DEALER AND
INTENDED OR LIKELY TO DECEIVE THE DEALER "WITH RESPECT TO ANY FACT
MATERIAL TO THE LAWFULNESS OF THE SALE OR OTHER DISPOSITION OF SUCH
FIREARM." 

PETITIONER ATTACHES GREAT SIGNIFICANCE TO THE WORD "ACQUISITION". 
HE URGES THAT IT SUGGESTS ONLY A SALE-LIKE TRANSACTION.  SINCE CONGRESS
IN 922(A)(6) DID NOT USE WORDS OF TRANSFER OR DELIVERY, AS IT DID IN
OTHER SECTIONS OF THE ACT, HE ARGUES THAT "ACQUISITION" MUST HAVE A
NARROWER MEANING THAN THOSE TERMS.  MOREOVER, SINCE A PAWN TRANSACTION
IS ONLY A TEMPORARY BAILMENT OF PERSONAL PROPERTY, WITH THE PAWNSHOP
HAVING MERELY A SECURITY INTEREST IN THE PLEDGED PROPERTY, TITLE OR
OWNERSHIP IS CONSTANT IN THE PAWNOR, AND THE PAWN-PLUS-REDEMPTION
TRANSACTION IS NO MORE THAN AN INTERRUPTION IN THE PAWNOR'S
POSSESSION.  THE PAWNOR SIMPLY REPOSSESSES HIS OWN PROPERTY, AND HE
DOES NOT "ACQUIRE"  ANY NEW TITLE OR INTEREST IN THE OBJECT PAWNED.  AT
MOST, HE "REACQUIRES" THE OBJECT, AND REACQUISITION, AS THE DISSENTING
JUDGE IN THE COURT OF APPEALS NOTED, IS NOT NECESSARILY INCLUDED IN THE
STATUTORY TERM "ACQUISITION." 

ON ITS FACE, THIS ARGUMENT MIGHT BE SAID TO HAVE SOME FORCE.  A
CAREFUL LOOK AT THE STATUTORY LANGUAGE AND AT COMPLEMENTARY PROVISIONS
OF THE ACT, HOWEVER, CONVINCES US THAT THE ASSERTED AMBIGUITY IS
CONTRIVED.  PETITIONER IS MISTAKEN IN FOCUSING SOLELY ON THE TERM
"ACQUISITION"  AND IN ENSHROUDING IT WITH AN EXTRA-STATUTORY "LEGAL
TITLE"  OR "OWNERSHIP" ANALYSIS.  THE WORD "ACQUIRE" IS DEFINED TO MEAN
SIMPLY "TO COME INTO POSSESSION, CONTROL , OR POWER OF DISPOSAL OF." 
WEBSTER'S NEW INTERNATIONAL DICTIONARY (3D ED., 1966, UNABRIDGED);
UNITED STATES V. LAISURE, 460 F.2D 709, 712 N. 3 (CA5 1972).  THERE IS
NO INTIMATION HERE THAT TITLE OR OWNERSHIP WOULD BE NECESSARY FOR
POSSESSION, OR CONTROL, OR DISPOSAL POWER, AND THERE IS NOTHING ELSE IN
THE STATUTE THAT JUSTIFIES THE IMPOSITION OF THAT GLOSS.  MOREOVER, A
FULL READING OF 922(A)(6) CLEARLY DEMONSTRATES THAT THE FALSE
STATEMENTS THAT ARE PROHIBITED ARE THOSE MADE WITH RESPECT TO THE
LAWFULNESS OF THE SALE "OR OTHER DISPOSITION" OF A FIREARM BY A
LICENSED DEALER.  THE WORD "ACQUISITION," THEREFORE, CANNOT BE
CONSIDERED APART FROM THE PHRASE "SALE OR OTHER DISPOSITION."  AS THE
GOVERNMENT SUGGESTS, AND INDEED AS THE PETITIONER IMPLICITLY REASONED
AT ORAL ARGUMENT, TR. OF ORAL ARG. 11, IF THE PAWNBROKER "SELLS" OR
"DISPOSES" UNDER 922(A)(6), THE PAWNOR NECESSARILY "ACQUIRES."  THESE
WORDS, AS USED N THE STATUTE, ARE CORRELATIVES.  THE FOCUS OF OUR
INQUIRY, THEREFORE, SHOULD BE TO DETERMINE WHETHER A "SALE OR OTHER
DISPOSITION"  OF A FIREARM BY A PAWNBROKER ENCOMPASSES THE REDEMPTION
OF THE FIREARM BY A PAWNOR.  HC#820 

CLEARLY, A REDEMPTION IS NOT A "SALE" FOR THE SIMPLE REASON THAT A
SALE HAS DEFINITE CONNOTATIONS OF OWNERSHIP AND TITLE.  SOME "OTHER
DISPOSITION" OF A FIREARM, HOWEVER, COULD EASILY EMCOMPASS A PAWNSHOP
REDEMPTION.  WE BELIEVE THAT IT DOES. 

IT IS THE DEALER WHO SELLS OR DISPOSES OF THE FIREARM.  THE STATUTE
DEFINES THE DEALER TO BE: 

"(A) ANY PERSON ENGAGED IN THE BUSINESS OF SELLING FIREARMS OR
AMMUNITION AT WHOLESALE OR RETAIL, (B) ANY PERSON ENGAGED IN THE
BUSINESS OF REPAIRING FIREARMS OR OF MAKING OR FITTING SPECIAL BARRELS,
STOCKS, OR TRIGGER MECHANISMS TO FIREARMS, OR (C) ANY PERSON WHO IS A
PAWNBROKER."  18 U.S.C. 921 (A)(11) (EMPHASIS SUPPLIED).  IT DEFINES A
"PAWNBROKER" AS "ANY PERSON WHOSE BUSINESS OR OCCUPATION INCLUDES THE
TAKING OR RECEIVING, BY WAY OF PLEDGE OR PAWN, OF ANY FIREARM OR
AMMUNITION AS SECURITY FOR THE PAYMENT OR REPAYMENT OF MONEY."  18
U.S.C. 921 (A)(12) (EMPHASIS SUPPLIED). 

THESE DEFINITIONS SURELY SUGGEST THAT A "SALE OR OTHER DISPOSITION"
OF A FIREARM IN A PAWNSHOP IS COVERED BY THE STATUTE.  THIS, OF COURSE,
DOES NOT OF ITSELF RESOLVE THE QUESTION AS TO EXACTLY WHAT "OTHER
DISPOSITION" BY A PAWNBROKER IS INCLUDED.  IT SHOULD BE APPARENT,
HOWEVER, THAT IF CONGRESS HAD INTENDED TO INCLUDE ONLY A PAWNBROKER'S
DEFAULT SALES OF PLEDGED OR PAWNED GOODS, OR HIS WHOLESALE AND RETAIL
SALES OF NONPAWNED GOODS, AND TO EXCLUDE THE REDEMPTION OF PAWNED
ARTICLES, THEN THE EXPLICIT INCLUSION OF THE PAWNBROKER IN THE
DEFINITION OF "DEALER" WOULD SERVE NO PURPOSE, SINCE PART (A) OF THE
DEFINITION, COVERING WHOLESALE AND RETAIL SALES, WOULD OTHERWISE REACH
ALL SUCH SALES.  UNITED STATES V. ROSEN, 352 F. SUPP. 727, 729 (IDAHO
1973).  AT ORAL ARGUMENT COUNSEL SUGGESTED THAT THE SPECIFIC REFERENCE
TO A PAWNBROKER MIGHT HAVE BEEN INTENDED TO INCLUDE "DISPOSITION"  BY
BARTER, SWAP, TRADE, OR GIFT.  TR. OF ORAL ARG. 5 - 7.  THIS
INTERPRETATION STRAINS BELIEF.  TRADES OR GIFTS ARE NOT PECULIAR TO
PAWNBROKERS.  WHOLESALERS AND RETAILERS MAY INDULGE IN SUCH
DISPOSITIONS.  THERE IS NOTHING IN THE LEGISLATIVE HISTORY TO INDICATE
THAT THIS INTERPRETATION PROMPTED THE SPECIFIC MENTION OF A PAWNBROKER
IN PART (C) OF THE DEFINITION.  TO THE CONTRARY, THE COMMITTEE REPORTS
INDICATE THAT PART (C) "SPECIFICALLY PROVIDES THAT A PAWNBROKER DEALING
IN FIREARMS SHALL BE CONSIDERED A DEALER."  H.R. REP. NO. 1577, 90TH
CONG., 2D SESS., 11 (1968) (EMPHASIS SUPPLIED).  SEE ALSO S. REP. NO
1501, 90TH CONG., 2D SESS., 30 (1968). 

WE ALSO CANNOT IGNORE THE EXPLICIT REFERENCE TO A FIREARM TRANSACTION
"BY WAY OF PLEDGE OR PAWN" IN THE STATUTORY DEFINITION OF "PAWNBROKER"
IN 921(A)(12).  HAD CONGRESS' DESIRE BEEN TO EXEMPT A TRANSACTION OF
THIS KIND, IT WOULD HAVE ARTFULLY WORDED THE DEFINITION SO AS, TO
EXCLUDE IT.  WE ARE EQUALLY IMPRESSED BY CONGRESS'  FAILURE TO EXEMPT
REDEMPTIVE TRANSACTIONS FROM THE PROHIBITIONS FOR A DEALER "RETURNING A
FIREARM" AND FOR AN INDIVIDUAL MAILING A FIREARM TO A DEALER "FOR THE
SOLE PURPOSE OF REPAIR OR CUSTOMIZING."  922(A)(2)(A).  PETITIONER
CONTENDS THAT A REDEMPTIVE TRANSACTION IS NO DIFFERENT FROM THE RETURN
OF A GUN LEFT FOR REPAIR.  HIS ARGUMENT IS THAT THE PAWNED WEAPON IS
SIMPLY "RETURNED"  TO THE INDIVIDUAL WHO LEFT IT AND REPRESENTS A MERE
RESTORATION TO ITS ORIGINAL STATUS.  WE BELIEVE, HOWEVER, THAT IT WAS
NOT UNREASONABLE FOR CONGRESS TO CHOOSE TO VIEW THE PAWN TRANSACTION AS
SOMETHING MORE THAN THE MERE INTERRUPTION IN POSSESSION TYPICAL OF
REPAIR.  THE FACT THAT CONGRESS THOUGHT IT NECESSARY SPECIFICALLY TO
EXEMPT THE REPAIR TRANSACTION INDICATES THAT IT OTHERWISE WOULD HAVE
BEEN COVERED AND, IF THIS WERE SO, CLEARLY A PAWN TRANSACTION LIKEWISE
WOULD BE COVERED.  HC#822 

OTHER PROVISIONS OF THE ACT ALSO MAKE IT CLEAR THAT THE STATUTE
GENERALLY COVERS ALL TRANSFERS OF FIREARMS BY DEALERS TO RECIPIENTS. 
IMPORTER, MANUFACTURER, OR DEALER, TO ENGAGE IN THE BUSINESS OF
"DEALING" IN FIREARMS, OR IN THE COURSE OF SUCH BUSINESS "TO SHIP,
TRANSPORT, OR RECEIVE ANY FIREARM."  SECTION 922(B)(1) MAKES IT
UNLAWFUL FOR A DEALER "TO SELL OR DELIVER" FIREARMS OF SPECIFIED TYPES
TO PERSONS UNDER 18 OR 21 YEARS OF AGE.  SECTION 922(B)(2) MAKES IT
UNLAWFUL FOR A DEALER TO "SELL OR DELIVER" A WEAPON TO A PERSON IN ANY
STATE WHERE "AT THE PLACE OF SALE, DELIVERY OR OTHER DISPOSITION," THE
TRANSFER WOULD VIOLATE LOCAL LAW.  SECTION 922(D) MAKES IT UNLAWFUL FOR
A DEALER "TO SELL OR OTHERWISE DISPOSE OF" A FIREARM TO A PERSON UNDER
A FELONY INDICTMENT, A FELON, A FUGITIVE, A NARCOTIC ADDICT, OR A
MENTAL DEFECTIVE.  SECTION 923(G) REQUIRES THAT EACH LICENSED DEALER
MAINTAIN "RECORDS OF IMPORTATION, PRODUCTION, SHIPMENT, RECEIPT, SALE,
OR OTHER DISPOSITION, OF FIREARMS." 

IN SUM, THE WORD "ACQUISITION," AS USED IN 922(A)(6), IS NOT
AMBIGUOUS, BUT CLEARLY INCLUDES ANY PERSON, BY DEFINITION, WHO "COMES)
INTO POSSESSION, CONTROL, OR POWER OF DISPOSAL" OF A FIREARM.  AS NOTED
ABOVE, "ACQUISITION"  AND "SALE OR OTHER DISPOSITION" ARE
CORRELATIVES.  IT IS REASONABLE TO CONCLUDE THAT A PAWNBROKER MIGHT
"DISPOSE"  OF A FIREARM THROUGH A REDEMPTIVE TRANSACTION.  AND BECAUSE
CONGRESS EXPLICITLY INCLUDED PAWNBROKERS IN THE ACT, EXPLICITLY
MENTIONED PLEDGE AND PAWN TRANSACTIONS INVOLVING FIREARMS, AND CLEARLY
FAILED TO INCLUDE THEM AMONG THE STATUTORY EXCEPTIONS, WE ARE NOT AT
LIBERTY TO TAMPER WITH THE OBVIOUS REACH OF THE STATUTE IN PROSCRIBING
THE CONDUCT IN WHICH THE PETITIONER ENGAGED.              III     THE
LEGISLATIVE HISTORY, TOO, SUPPORTS THIS READING OF THE STATUTE.  THIS
IS APPARENT FROM THE AIMS AND PURPOSES OF THE ACT AND FROM THE METHOD
CONGRESS ADOPTED TO ACHIEVE THOSE OBJECTIVES.  WHEN CONGRESS ENACTED
THE PROVISIONS UNDER WHICH PETITIONER WAS CONVICTED, IT WAS CONCERNED
WITH THE WIDESPREAD TRAFFIC IN FIREARMS AND WITH THEIR GENERAL
AVAILABILITY TO THOSE WHOSE POSSESSION THEREOF WAS CONTRARY TO THE
PUBLIC INTEREST.  PUB. L. 90 - 351, 1201, 82 STAT. 236, AS AMENDED BY
PUB. L. 90 - 618, 301(A)(1), 82 STAT. 1236, 18 U.S.C. APP. 1201. 
CONGRESS DETERMINED THAT THE CASE WITH WHICH FIREARMS COULD BE OBTAINED
CONTRIBUTED SIGNIFICANTLY TO THE PREVELANCE OF LAWFULNESS AND VIOLENT
CRIME IN THE UNITED STATES.  S. REP. NO. 1097, 90TH CONG., 2D SESS.,
108 (1968).  THE PRINCIPLE PURPOSE OF THE FEDERAL GUN CONTROL
LEGISLATION, THEREFORE, WAS TO CURB CRIME BY KEEPING "FIREARMS OUT OF
THE HANDS OF THOSE NOT LEGALLY ENTITLED TO POSSESS THEM BECAUSE OF AGE,
CRIMINAL BACKGROUND, OR INCOMPETENCY," S. REP. NO. 1501, 90TH CONG., 2D
SESS., 22 (1968). 

TITLE IV OF THE ONMIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968,
AND THE GUN CONTROL ACT OF 1968, ARE THUS AIMED AT RESTRICTING PUBLIC
ACCESS TO FIREARMS.  COMMERCE IN FIREARMS IS CHANNELED THROUGH
FEDERALLY LICENSED IMPORTERS, MANUFACTURERS, AND DEALERS IN AN ATTEMPT
TO HALT MAIL-ORDER AND INTERSTATE CONSUMER TRAFFIC IN THESE WEAPONS. 
THE PRINCIPAL AGENT OF FEDERAL ENFORCEMENT IS THE DEALER.  HE IS
LICENSED, 922(A)(1) AND 923(A); HE IS REQUIRED TO KEEP RECORDS OF "SALE
. . . OR OTHER DISPOSITION,"  923(G); AND HE IS SUBJECT TO A CRIMINAL
PENALTY FOR DISPOSING OF A WEAPON CONTRARY TO THE PROVISIONS OF THE
ACT, 924. 

CONVICTED, WAS ENACTED AS A MEANS OF PROVIDING ADEQUATE AND TRUTHFUL
INFORMATION ABOUT FIREARMS TRANSACTIONS.  INFORMATION DRAWN FROM
RECORDS KEPT BY DEALERS WASA PRIME GUARANTEE OF THE ACT'S EFFECTIVENESS
IN KEEPING "THESE LETHAL WEAPONS OUT OF THE HANDS OF CRIMINALS, DRUG
ADDICTS, MENTALLY DISORDERED PERSONS, JUVENILES, AND OTHER PERSONS
WHOSE POSSESSION OF THEM IS TOO HIGH A PRICE IN DANGER TO US ALL TO
ALLOW."  114 CONG. REC. 13219 (1968) (REMARKS OF SEN. TYDINGS).  THUS,
ANY FALSE STATEMENT WITH RESPECT TO THE ELIGIBILITY OF A PERSON TO
OBTAIN A FIREARM FROM A LICENSED DEALER WAS MADE SUBJECT TO A CRIMINAL
PENALTY. 

FROM THIS OUTLINE OF THE ACT, IT IS APPARENT THAT THE FOCUS OF THE
FEDERAL SCHEME IS THE FEDERALLY LICENSED FIREARMS DEALER, AT LEAST
INSOFAR AS THE ACT DIRECTLY CONTROLS ACCESS TO WEAPONS BY USERS. 
FIREARMS ARE CHANNELED THROUGH DEALERS TO ELIMINATE THE MAIL ORDER AND
THE GENERALLY WIDESPREAD COMMERCE IN THEM, AND TO INSURE THAT, IN THE
COURSE OF SALES OR OTHER DISPOSITIONS BY THESE DEALERS, WEAPONS COULD
NOT BE OBTAINED BY INDIVIDUALS WHOSE POSSESSION OF THEM WOULD BE
CONTRARY TO THE PUBLIC INTEREST.  THUS, THE CONCLUSION WE REACHED ABOVE
WITH RESPECT TO THE LANGUAGE AND STRUCTURE OF THE ACT, THAT FIREARMS
REDEMPTIONS IN PAWNSHOPS ARE COVERED, IS ENTIRELY CONSONANT WITH THE
ACHIEVEMENT OF THIS CONGRESSIONAL OBJECTIVE AND METHOD OF ENFORCING THE
ACT. 

MOREOVER, AS WAS SAID IN UNITED STATES V. BRAMBLETT, 348 U.S. 503,
507 (1955), "THERE IS NO INDICATION IN EITHER THE COMMITTEE REPORTS OR
IN THE CONGRESSIONAL DEBATES THAT THE SCOPE OF THE STATUTE WAS TO BE IN
ANY WAY RESTRICTED" (FOOTNOTES OMITTED).  INDEED, THE COMMITTEE REPORTS
INDICATE THAT THE PROSCRIPTION UNDER 922(D) ON THE SALE OR OTHER
DISPOSITION OF A FIREARM TO A FELON "GOES TO ALL TYPES OF SALES OR
DISPOSITIONS --, OVER-THE-COUNTER AS WELL AS MAIL ORDER."  /7/  S. REP.
NO. 1097, 90TH CONG., 2D SESS., 115 (1968).  SEE S. REP. NO. 1501, 90TH
CONG., 2D SESS., 34 (1968).  AS FAR AS THE PARTIES HAVE INFORMED US,
AND AS FAR AS OUR INDEPENDENT RESEARCH HAS REVEALED, THERE IS NO
DISCUSSION OF THE ACTUAL MEANING OF "ACQUISITION" OR OF "SALE OR OTHER
DISPOSITION" IN THE LEGISLATIVE HISTORY.  PREVIOUS LEGISLATION RELATING
TO THE PARTICULAR TERM "OTHER DISPOSITION"  SHEDS SOME LIGHT, HOWEVER,
AND PRUDENCE CALLS ON US TO LOOK TO IT IN ASCERTAINING THE LEGISLATIVE
PURPOSE.  UNITED STATES V. KATZ, 271 U.S. 354, 357 (1926).  THE TERM
APPARENTLY HAD ITS ORIGIN IN 1(K) OF THE NATIONAL FIREARMS ACT PUB. L.
NO. 474, 48 STAT. 1236 (1934).  THAT ACT SET CERTAIN CONDITIONS ON THE
"TRANSFER" OF MACHINE GUNS AND OTHER DANGEROUS WEAPONS.  AS DEFINED BY
THE ACT, "TRANSFER" MEANT "TO SELL, ASSIGN, PLEDGE, LEASE, LOAN, GIVE
AWAY, OR OTHERWISE DISPOSE OF."  THE TERM "OTHERWISE DISPOSE OF" IN
THAT CONTEXT WAS AIMED AT PROVIDING MAXIMUM COVERAGE.  THE
INTERPRETATION WE ADOPT HERE ACCOMPLISHES THE SAME OBJECTIVE.  /8/ 

THERE ALSO CAN BE NO DOUBT OF CONGRESS' INTENTION TO DEPRIVE THE
JUVENILE, THE MENTALLY INCOMPETENT, THE CRIMINAL, AND THE FUGITIVE OF
THE USE OF FIREARMS.  SENATOR TYDINGS STATED: 

     "TITLE IV, THE CONCEALED WEAPONS AMENDMENT, IS A VERY LIMITED,

  STRIPPED-DOWN, BARE-MINIMUM GUN-TRAFFIC CONTROL BILL, PRIMARILY

  DESIGNED TO REDUCE ACCESS TO HANDGUNS FOR CRIMINALS, JUVENILES,

AND FUGITIVES . . . . I CAN FAIRLY SAY THAT THIS CONCEALED

 WEAPONS AMENDMENT DOES NOT SIGNIFICANTLY INCONVENIENCE HUNTERS

  AND SPORTSMEN IN ANY WAY.  THE PEOPLE IT DOES FRUSTRATE ARE THE

  JUVENILES, FELONS, AND FUGITIVES WHO TODAY CAN, WITH TOTAL

  ANONYMITY AND IMPUNITY, OBTAIN GUNS BY MAIL OR BY CROSSING INTO

  NEIGHBORING STATES WITH LAX OR NO GUN LAWS AT ALL, REGARDLESS OF

  THE LAW OF THEIR OWN STATE."  114 CONG. REC. 13647 (1968). 

CONGRESSMAN CELLER, THE HOUSE MANAGER, STATED: 

     "MR. CHAIRMAN, NONE OF US WHO SUPPORT FEDERAL FIREARMS
CONTROLS

  BELIEVE THAT ANY BILL OR ANY SYSTEM OF CONTROL CAN GUARANTEE THAT

  SOCIETY WILL BE SAFE FROM FIREARMS MISUSE.  BUT WE ARE CONVINCED

  THAT A STRENGTHENED SYSTEM CAN SIGNFICANTLY CONTRIBUTE TO

  REDUCING THE DANGER OF CRIME IN THE UNITED STATES.  NO ONE CAN

  DISPUTE THE NEED TO PREVENT DRUG ADDICTS, MENTAL INCOMPETENTS,

  PERSONS WITH A HISTORY OF MENTAL DISTURBANCES, AND PERSONS

  CONVICTED OF CERTAIN OFFENSES, FROM BUYING, OWNING, OR POSSESSING

  FIREARMS.  THIS BILL SEEKS TO MAXIMIZE THE POSSIBILITY OF KEEPING

  FIREARMS OUT OF THE HANDS OF SUCH PERSONS."  ID., AT 21784

  (1968). 

CONGRESSMAN MCCULLOCH, A SENIOR MEMBER OF THE HOUSE COMMITTEE ON THE
JUDICIARY, IN REFERRING SPECIFICALLY TO 922(A)(6), STATED, "(THE BILL)
MAKES IT UNLAWFUL . . ., (FOR ANY PERSON, IN CONNECTION WITH OBTAINING
A FIREARM OR AMMUNITION FROM A LICENSEE, TO MAKE A FALSE REPRESENTATION
MATERIAL TO SUCH ACQUISITION."  ID., AT 21789 (1968).  /9/  GIVEN THESE
STATEMENTS OF CONGRESSIONAL PURPOSE, IT WOULD BE UNWARRANTED TO EXCEPT
PAWNSHOP REDEMPTIONS WHEN, BY VIRTUE OF THE STATUTORY LANGUAGE ITSELF,
SUCH REDEMPTIONS WOULD BE COVERED.  OTHERWISE EVERY EVIL CONGRESS HOPED
TO CURE WOULD CONTINUE UNABATED.  /10/

        IV 

PETITIONER URGES THAT THE INTENTION TO INCLUDE PAWN REDEMPTIONS IS
SO AMBIGUOUS AND UNCERTAIN THAT THE STATUTE SHOULD BE NARROWLY
CONSTRUED IN HIS FAVOR.  RELIANCE IS PLACED UPON THE MAXIMUM THAT AN
"AMBIGUITY CONCERNING THE AMBIT OF CRIMINAL STATUTES SHOULD BE RESOLVED
IN FAVOR OF LENITY."  REWIS V. UNITED STATES, 401 U.S. 808, 812 (1971);
UNITED STATES V. BASS, 404 U.S. 336, 347 (1971).  THIS RULE OF NARROW
CONSTRUCTION IS ROOTED IN THE CONCERN OF THE LAW FOR INDIVIDUAL RIGHTS,
AND IN THE BELIEF THAT FAIR WARNING SHOULD BE ACCORDED AS TO WHAT
CONDUCT IS CRIMINAL AND PUNISHABLE BY DEPRIVATION OF LIBERTY OR
PROPERTY.  UNITED STATES V. WILTBERGER, 5 WHEAT.  76, 95 (1820); UNITED
STATES V. BAS, 404 U.S., AT 348.  THE RULE IS ALSO THE PRODUCT OF AN
AWARENESS THAT LEGISLATORS AND NOT THE COURTS SHOULD DEFINE CRIMINAL
ACTIVITY.  ZEAL IN FORWARDING THESE LAUDABLE POLICIES, HOWEVER, MUST
NOT BE PERMITTED TO SHADOW THE UNDERSTANDING THAT "(SOUND RULES OF
STATUTORY INTERPRETATION EXIST TO DISCOVER AND NOT TO DIRECT THE
CONGRESSIONAL WILL."  UNITED STATES EX REL. MARCUS V. HESS, 317 U.S.
537, 542 (1943).  ALTHOUGH PENAL LAWS ARE TO BE CONSTRUED STRICTLY,
THEY "OUGHT NOT TO BE CONSTRUED SO STRICTLY AS TO DEFEAT THE OBVIOUS
INTENTION OF THE LEGISLATURE."  AMERICAN FUR CO. V. UNITED STATES, 2
PET. 358, 367 (1829); UNITED STATES V. WILTBERGER, SUPRA; UNITED STATES
V. MORRIS, 14 PET. 464, 475 (1840); UNITED STATES V. LACHER, 134 U.S.
624 (1890); UNITED STATES V. BRAMBLETT, 348 U.S., AT 510; UNITED STATES
V. BASS, 404 U.S., AT 351. 

WE PERCEIVE NO GRIEVOUS AMBIGUITY OR UNCERTAINTY IN THE LANGUAGE AND
STRUCTURE OF THE ACT.  THE STATUTE IN QUESTION CLEARLY PROSCRIBES
PETITIONER'S CONDUCT AND ACCORDED HIM FAIR WARNING OF THE SANCTIONS THE
LAW PLACED ON THAT CONDUCT.  HUDDLESTON WAS NOT SHORT OF NOTICE THAT
HIS ACTIONS WERE UNLAWFUL.  THE QUESTION HE ANSWERED UNTRUTHFULLY WAS
PRECEDED BY A WARNING IN BOLDFACE TYPE THAT "AN UNTRUTHFUL ANSWER MAY
SUBJECT YOU TO CRIMINAL PROSECUTION."  THE QUESTION ITSELF WAS
FORTHRIGHT AND DIRECT, STATING THAT IT WAS CONCERNED WITH CONVICTION OF
A CRIME PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR AND
THAT THIS MEANT THE TERM WHICH COULD HAVE BEEN IMPOSED AND NOT THE
SENTENCE ACTUALLY GIVEN.  FINALLY, PETITIONER WAS REQUIRED TO CERTIFY
BY HIS SIGNATURE THAT HIS ANSWERS WERE TRUE AND CORRECT AND THAT HE
UNDERSTOOD THAT "THE MAKING OF ANY FALSE ORAL OR WRITTEN STATEMENT . .
. WITH RESPECT TO THIS TRANSACTION IS A CRIME PUNISHABLE AS A FELONY." 
THIS WARNING ALSO WAS IN BOLDFACE TYPE.  CLEARLY, PETITIONER HAD
ADEQUATE NOTICE AND WARNING OF THE CONSEQUENCES OF HIS ACTION. 

OUR READING OF THE STATUTE CANNOT BE VIEWED AS JUDICIAL USURPATION
OF THE LEGISLATIVE FUNCTION.  THE STATUTE'S LANGUAGE REVEALS AN
UNMISTAKABLE ATTEMPT TO INCLUDE PAWNSHOP TRANSACTIONS, BY PLEDGE OR
PAWN, AMONG THE TRANSACTIONS COVERED BY THE ACT.  AND CONGRESS
UNQUESTIONABLY MADE IT UNLAWFUL FOR DEALERS, INCLUDING PAWNBROKERS, "TO
SELL OR OTHERWISE DISPOSE OF ANY FIREARM" TO A CONVICTED FELON, A
JUVENILE, A DRUG ADDICT, OR A MENTAL DEFECTIVE.  922(D).  UNDER THESE
CIRCUMSTANCES WE WILL NOT BLINDLY INCANT THE RULE OF LENITY TO "DESTROY
THE SPIRIT AND FORCE OF THE LAW WHICH THE LEGISLATURE INTENDED TO (AND
DID) ENACT."  AMERICAN TOBACCO CO. V. WERCKMEISTER, 207 U.S. 284, 293
(1907); UNITED STATES V. KATZ, 271 U.S., AT 357.  /11/

        V 

THE PETITIONER SUGGESTS, LASTLY, THAT THE APPLICATION OF 922(A)(6)
TO A PAWN REDEMPTION WOULD RAISE CONSTITUTIONAL QUESTIONS OF SOME
MOMENT, AND THAT THESE WOULD NOT ARISE IF THE STATUTE WERE NARROWLY
CONSTRUED.  WE FAIL TO SEE THE PRESENCE OF ISSUES OF THAT IMPORT. 
THERE WAS NO TAKING OF HUDDLESTON'S PROPERTY WIHTOUT JUST
COMPENSATION.  THE RIFLES, IN FACT, WERE NOT HIS BUT HIS WIFE'S.
MOREOVER, CONGRESS HAS DETERMINED THAT A CONVICTED FELON MAY NOT
LAWFULLY OBTAIN WEAPONS OF THAT KIND.  NOR WERE PETITIONER'S FALSE
ANSWERS IN ANY WAY COERCED.  UNITED STATES V. KNOX, 396 U.S. 77, 79
(1969); BRYSON V. UNITED STATES, 396 U.S. 64, 72 (1969).  FINALLY, NO
INTERSTATE COMMERCE NEXUS NEED BE DEMONSTRATED.  CONGRESS INTENDED, AND
PROPERLY SO, THAT 922(A)(6) AND (D)(1), IN CONTRAST TO 18 U.S.C. APP.
1202 (A)(1), SEE UNITED STATES V. BASS, SUPRA, WERE TO REACH
TRANSACTIONS THAT ARE WHOLLY INTRASTATE, AS THE COURT OF APPEALS
CORRECTLY REASONED, "ON THE THEORY THAT SUCH TRANSACTIONS AFFECT
INTERSTATE COMMERCE."  472 F.2D, AT 593.  SEE ALSO UNITED STATES V.
MENNA, 451 F.2D 982, 984 (CA9 1971), CERT. DENIED, 405 U.S. 963 (1972),
AND UNITED STATES V. O'NEILL, 467 F.2D 1372, 1373 - 1374 (CA2 1972). 

WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

  IT IS SO ORDERED. 

/1/  "922.  UNLAWFUL ACTS. 

"(A) IT SHALL BE ULAWFUL---,

        .         .         .       .         . 

"(6) FOR ANY PERSON IN CONNECTION WITH THE ACQUISITION . . . OF ANY
FIREARM . . . FROM A . . . LICENSED DEALER . . . KNOWLINGLY TO MAKE ANY
FALSE OR FICTITIOUS ORAL OR WRITTEN STATEMENT . . . INTENDED OR LIKELY
TO DECEIVE SUCH . . . DEALER . . . WITH RESPECT TO ANY FACT MATERIAL TO
THE LAWFULNESS OF THE SALE OR OTHER DISPOSITION OF SUCH FIREARM . . .
UNDER THE PROVISIONS OF THIS CHAPTER." 

/2/  922.  UNLAWFUL ACTS. 

        .         .         .         .         . 

"(D) IT SHALL BE UNLAWFUL FOR ANY . . . LICENSED DEALER . . . TO
SELL OR OTHERWISE DISPOSE OF ANY FIREARM . . . TO ANY PERSON KNOWING OR
HAVING REASONABLE CAUSE TO BELIEVE THAT SUCH PERSON --, 

"(1) IS UNDER INDICTMENT FOR, OR HAS BEEN CONVICTED IN ANY COURT OF,
A CRIME PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR." 

/3/  CAL. PENAL CODE 476A (1970).  THE CALIFORNIA COMPLAINT AGAINST
HUDDLESTON WAS IN SIX COUNTS AND CONTAINED AN ALLEGATION THAT HE HAD
BEEN CONVICTED PREVIOUSLY IN THE STATE OF IOWA OF AN OFFENSE WHICH, IF
COMMITTED IN CALIFORNIA, WOULD HAVE BEEN A VIOLATION OF 476 OF THE
CALIFORNIA PENAL CODE.  HE WAS EVENTUALLY SENTENCED ON THE CHECK CHARGE
TO 30 DAYS IN JAIL. 

/4/  "924.  PENALTIES. 

"(A) WHOEVER VIOLATES ANY PROVISION OF THIS CHAPTER OR KNOWINGLY
MAKES ANY FALSE STATEMENT OR REPRESENTATION WITH RESPECT TO THE
INFORMATION REQUIRED BY THE PROVISIONS OF THIS CHAPTER TO BE KEPT IN
THE RECORDS OF A PERSON LICENSED UNDER THIS CHAPTER, . . . SHALL BE
FINED NOT MORE THAN $5,000, OR IMPRISONED NOT MORE THAN FIVE YEARS, OR
BOTH, AND SHALL BECOME ELGIBLE FOR PAROLE AS THE BOARD OF PAROLE SHALL
DETERMINE."     /5/  HUDDLESTON AT FIRST TESTIFIED THAT HIS CALIFORNIA
ATTORNEY AND HIS PROBATION OFFICER THERE TOLD HIM THAT WHEN HE
COMPLETED HIS PROBATION PERIOD AND MADE RESTITUTION.  "IT WOULD GO ON
RECORD AS A MISDEMEANOR,"  AND THAT THE ATTORNEY HAD TOLD HIM HE
"COULDN'T GET OVER A YEAR."  APP. 37, 39.  UPON INQUIRY BY THE COURT,
HE TESTIFIED THAT WHEN HE WAS ARRAIGNED HE THOUGHT HE "COULD GET MORE
THAN ONE YEAR," AND WAS SO INFORMED.  APP. 41. 

/6/  IN AGREEMENT WITH THE NINTH CIRCUIT'S DECISION IS UNITED STATES
V. BEEBE, 467 F.2D 222 (CA10 1972).  THE THE CONTRARY IS UNITED STATES
V. LAISURE, 460 F.2D 709 (CA5 1972). 

/7/  JAMES V. BENNETT, THEN DIRECTOR OF THE FEDERAL BUREAU OF PRISONS,
IN SENATE TESTIMONY OFFERED A "CASE STUDY" VIVIDLY ILLUSTRATING NONSALE
SITUATIONS THAT WOULD QUALIFY AS A FIREARMS "DISPOSITION" OR
"ACQUISITION."  ONE OF HIS ILLUSTRATIONS WAS THE FOLLOWING: 

"ON SEPTEMBER 26, 1958, A 20-YEAR-OLD YOUTH SHOT AND SERIOUSLY
WOUNDED A TELLER DURING THE COURSE OF A BANK ROBBERY IN ST. PAUL; ONLY
A WEEK PREVIOUSLY HE HAD BOUGHT THE REVOLVER, A .357 SMITH & WESSON, IN
A MINNEAPOLIS SPORTING GOODS STORE, PAWNED IT THE SAME DAY, AND ON THE
DAY OF THE ROBBERY REDEEMED IT WITH MONEY OBTAINED FROM CHECK
FORGERIES."  MR.BENNETT CONCLUDED HIS TESTIMONY WITH THE OBSERVATION,
"NO RESPONSIBLE AND THOUGHTFUL CITIZEN CAN,IN MY OPINION, SERIOUSLY
OBJECT TO MEASURES WHICH WOULD DISCOURAGE YOUNGSTERS, THE MENTALLY ILL,
AND CRIMINALS FROM COMING INTO POSSESSION OF HANDGUNS."  HEARINGS
BEFORE THE SUBCOMMITTEE TO INVESTIGATE JUVENILE DELINQUENCY OF THE
SENATE COMMITTEE ON THE JUDICIARY, 88TH CONG., 1ST SESS., PT. 14, PP.
3369, 3377 (1963). 

/8/  TESTIMONY BY THEN ATTORNEY GENERAL RAMSEY CLARK ALSO SUPPORTS
THE REJECTION OF PETITIONER'S SUGGESTION THAT THE LANGUAGE OF THE
STATUTE BE GIVEN A RESTRICTIVE MEANING: 

"MR. DONOHUE.  DO YOU NOT THINK, MR. ATTORNEY GENERAL, TO ATTAIN THE
REAL OBJECTIVE AND PURPOSE OF THIS BILL, IT SHOULD NOT ONLY DEAL WITH
THE SALE, BUT WHOEVER SELLS OR DELIVERS? 

"MR. CLARK.  IT COVERS DELIVERY, TOO. 

"MR. DONOHUE.  WHERE? 

"MR. CLARK.  WELL, GENERALLY, THROUGH THE BILL WHEN YOU TALK ABOUT -
WELL, IT WOULD BE UNLAWFUL FOR ANY LICENSED IMPORTER TO SELL OR
DELIVER.  ANY LICENSED DEALER TO SELL OR DELIVER. 

"MR. DONOHUE.  IT IS NOT RESTRICTED TO JUST SALE FOR CONSIDERATION? 

"MR. CLARK.  NO. THE DELIVERY, TOO."  HEARINGS ON AN ANTI-CRIME
PROGRAM BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 90TH CONG., 1ST SESS., 260 (1967). 

/9/  IT SHOULD BE APPARENT FROM THESE STATEMENTS THAT CONGRESS WAS
NOT SO MUCH CONCERNED WITH GUARANTEEING NO INTERFERENCE WITH THE
OWNERSHIP OF WEAPONS AS IT WAS IN DISTINGUISHING BETWEEN LAW ABIDING
CITIZENS AND THOSE WHOSE POSSESSION OF WEAPONS WOULD BE CONTRARY TO THE
PUBLIC INTEREST.  HUNTING, TARGET PRACTICE, GUN COLLECTING, AND THE
LEGITIMATE USE OF GUNS FOR INDIVIDUAL PROTECTION ARE NOT PROSCRIBED BY
THE ACT.  OWNERSHIP OF A WEAPON, HOWEVER, MAY BE INTERFERED WITH BY
SEIZURE AND FORFEITURE UNDER THE ACT FOR ANY VIOLATION OF ITS
PROVISIONS.  SECTION 924(D) INCORPORATES THE SEIZURE AND FORFEITURE
PROVISIONS OF THE INTERNAL REVENUE CODE WHEN THERE IS ANY VIOLATION OF
THE PROVISIONS OF THE CHAPTER OR ANY RULE OR REGULATION THEREUNDER. 
THE ACT ITSELF THUS COMTEMPLATES INTERFERENCE WITH THE OWNERSHIP OF
WEAPONS WHEN THOSE WEAPONS FALL INTO THE HANDS OF JUVENILES, CRIMINALS,
DRUG ADDICTS, AND MENTAL INCOMPETENTS. 

/10/  WHAT FEW REFERENCES THERE ARE TO PAWNBROKERS IN THE DEBATES
INDICATE THAT CONGRESS WAS DEFINITELY INTERESTED IN CURBING FIREARMS
TRAFFIC BETWEEN PAWNBROKERS AND CONVICTED FELONS.  SENATOR TYDINGS, A
STRONG PROPONENT OF THE BILL WHICH BECAME THE ACT, EXPRESSED HIS
CONCERN WHEN HE COMPARED THE BILL TO A PROPOSAL THAT WAS OFFERED AS AN
ALTERNATIVE:  "(ONE READING THROUGH THE AMENDMENT FOR THE FIRST TIME
WOULD ASSUME THAT PAWNBROKERS ARE COVERED BY THE CRITICALLY IMPORTANT
PROVISIONS OF THE AFFIDAVIT-WAITING PERIOD PROCEDURE.  BUT, IF A
PAWNBROKER ONLY RECEIVES SECONDHAND WEAPONS AS SECURITY FOR THE
REPAYMENT OF A LOAN AND DOES NOT DEAL IN NEW FIREARMS, HE IS NOT
TRANSPORTING, SHIPPING, OR RECEIVING A FIREARM IN INTERSTATE OR FOREIGN
COMMERCE.  USED WEAPONS PRESUMABLY WILL HAVE COME TO REST IN THE HANDS
OF THE BORROWER, AND THE TRANSACTION WILL BE WHOLLY INTRASTATE.  SUCH A
PAWNBROKER WOULD NOT NEED A FEDERAL FIREARMS LICENSE TO CONDUCT OVER
THE-COUNTER TRANSACTIONS IN FIREARMS.  AND, ACCORDINGLY, HE WOULD NOT
BE A 'LICENSED DEALER' REQUIRED TO COMPLY WITH THE AFFIDAVIT-WAITING
PERIOD PROCEDURE FOR HIS OVER-THE-COUNTER SALES IN HANDGUNS.  NOW, IF
THIS ANALYSIS IS CORRECT, AND I BELIEVE IT IS, THIS IS NO SMALL
OMISSION.  SURELY THE GREAT BULK OF CRIMINALLY IRRESPONSIBLE PURCHASERS
OF PISTOLS AND REVOLVERS BUY THEIR WEAPONS SECONDHAND, AND MANY OF THEM
FROM PAWNSHOPS.  WE ALL HAVE SEEN THE VIRTUAL ARSENALS DISPLAYED IN THE
WINDOWS OF PAWNSHOP DEALERS IN ALL OF THE MAJOR CITIES OF THE COUNTRY. 
TO SAY THAT WE HAVE EFFECTIVELY REGULATED TRAFFIC IN FIREARMS WHEN WE
WILL NOT HAVE TOUCHED THE GREAT BULK OF THESE PAWNBROKER OPERATIONS IS
A COMPLETE AND UTTER HYPOCRISY."  114 CONG. REC. 13222 (1968).  SEE
ALSO MEMORANDUM PLACED IN THE RECORD BY SENATOR DODD.  ID., AT 13320. 
SENATOR TYDINGS MADE THIS FURTHER COMPARISON: 

"(IT IS OBVIOUS THAT MANY PERSONS WITH CRIMINAL RECORDS PURCHASE
FROM PAWNBROKERS, AND THERE ARE MANY OCCASIONS WHEN THE PAWNBROKER
KNOWS THE CRIMINAL BACKGROUND OF THE CLIENT.  UNDER AMENDMENT NO. 708,
MANY OF THESE PAWNBROKERS WILL NOT BE REQUIRED TO BE LICENSED.  THEY
WOULD NOT NEED TO COMPLY WITH THE AFFIDAVIT PROCEDURE.  AND EVEN IF
THEY WERE LICENSED, THERE WOULD BE NO PROHIBITION ON THEIR SELLING
FIREARMS TO KNOWN CRIMINALS.  UNDER TITLE IV, ON THE OTHER HAND, ALL OF
THESE PAWNBROKERS WOULD BE REQUIRED TO BE LICENSED -- BECAUSE ALL
DEALERS AND MANUFACTURERS MUST BE LICENSED WHETHER OR NOT THEY SHIP,
RECEIVE, OR TRANSPORT IN COMMERCE -- AND ALL OF THEM WOULD BE UNDER
DIRECT FEDERAL SANCTION NOT TO SELL FIREARMS TO KNOWN CRIMINALS.  I ASK
YOU, WHICH BILL IS LIKELY TO BE MORE EFFECTIVE?"  ID., AT 13223. 

IT MUST BE CONCEDED THAT THESE REMARKS REFER TO "SELLING" FIREARMS,
BUT WE DO NOT CREDIT THIS FACT AS SIGNIFICANT FOR PURPOSES OF
DETERMINING WHETHER A PAWNSHOP REDEMPTION IS COVERED BY THE ACT.  THE
PLAIN LANGUAGE OF THE STATUTE AS ENACTED PROHIBITS A DEALER FROM
"SELLING OR DISPOSING OF" FIREARMS TO FELONS, AND PETITIONER'S COUNSEL
AT ORAL ARGUMENT INTIMATED THAT A PAWNBROKER, UNDER THIS LANGUAGE,
COULD DISPOSE OF A FIREARM OTHER THAN BY SALE AND BE COVERED BY THE
ACT.  TR. OF ORAL ARG. 4 - 5.  REFERENCES IN THE LEGISLATIVE DEBATE,
MOREOVER, ARE REPLETE WITH SHORTHAND LANGUAGE AND THIS IS MERELY AN
INSTANCE OF ITS USE.  HAD THE LEGISLATORS BEEN ENGAGED IN A COLLOQUY ON
THE ACTUAL MEANING OF "SALE OR OTHER DISPOSITION OF," WE MIGHT BE MORE
RECEPTIVE TO THE INTERPRETATION PROFFERED BY THE PETITIONER. 

WE ALSO NOTE THAT THE PRESIDENT OF THE PAWNBROKERS' ASSOCIATION OF
THE CITY OF NEW YORK TESTIFIED DURING CONGRESSIONAL HEARINGS THAT
ALMOST ALL FIREARM TRANSACTIONS BY PAWNSHOPS ARE BY PLEDGE AND
REDEMPTION, AND CONTENDED, THEREFORE, THAT PAWNBROKERS SHOULD NOT BE
INCLUDED AS DEALERS UNDER THE ACT.  HEARINGS ON A FEDERAL FIREARMS ACT
BEFORE THE SUBCOMMITTEE TO INVESTIGATE JUVENILE DELINQUENCY OF THE
SENATE COMMITTEE ON THE JUDICIARY, 90TH CONG., 1ST SESS., 1062 - 1065
(1967).  THUS, INFORMED OF THE FACT THAT ALMOST ALL FIREARMS
TRANSACTIONS BY PAWNBROKERS WERE THROUGH PLEDGE AND REDEMPTION, AND
FACED WITH THE ARGUMENT THAT PAWNBROKERS SHOULD NOT BE CONSIDERED AS
"DEALERS," CONGRESS CLEARLY CHOSE TO RETAIN PAWNBROKERS AS FIREARMS
DEALERS. 

FINALLY, THE LANGUAGE OF THE COMMITTEE REPORTS INDICATES THAT A
"SALE OR DISPOSITION" INCLUDES "ALL TYPES OF SALES OR DISPOSITIONS." 
S. REP. NO. 1097, 90TH CONG., 2D SESS., 115 (1968). 

/11/  THE DECISION TODAY DOES NOT IGNORE THE ADMONITION OF THE COURT
IN UNITED STATES V. BASS, 404 U.S. 336, 349 (1971), THAT "(IN
TRADITIONALLY SENSITIVE AREAS, SUCH AS LEGISLATION AFFECTING THE
FEDERAL BALANCE, THE REQUIREMENT OF CLEAR STATEMENT ASSURES THAT THE
LEGISLATURE HAS IN FACT FACED, AND INTENDED TO BRING INTO ISSUE, THE
CRITICAL MATTERS INVOLVED IN THE JUDICIAL DECISION."  THIS STATUTE DID
AFFECT THE FEDERAL BALANCE AND IT DID SO INTENTIONALLY.  AS SENATOR
TYDINGS EXPLAINED: 

"THIS CONCEALED WEAPONS AMENDMENT DOES NOT VIOLATE ANY STATE'S RIGHT
TO MAKE ITS OWN GUN LAWS.  QUITE THE CONTRARY, TITLE IV PROVIDES THE
CONTROLS ON INTERSTATE GUN TRAFFIC WHICH ONLY THE FEDERAL GOVERNMENT
CAN APPLY, AND WITHOUT WHICH NO STATE GUN LAW IS WORTH THE PAPER IT IS
WRITTEN ON. . . . WITHOUT SUCH FEDERAL ASSISTANCE, ANY STATE GUN LAW
CAN BE SUBVERTED BY ANY CHILD, FUGITIVE, OR FELON WHO ORDERS A GUN BY
MAIL OR BUYS ONE IN A NEIGHBORING STATE WHICH HAS LAX GUN LAWS."  114
CONG. REC. 13647 (1968). 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS CASE PRESENTS A MINOR VERSION OF THE PROBLEM CONFRONTING THE
COURT IN ROSENBERG V. UNITED STATES, 346 U.S. 273.  THAT CASE INVOLVED
AN AMBIGUITY IN A CRIMINAL LAW, AN AMBIGUITY THAT NORMALLY WOULD BE
RESOLVED IN FAVOR OF LIFE.  A SPLIT COURT IN A TENSE PERIOD OF AMERICAN
HISTORY UNHAPPILY RESOLVED THE AMBIGUITY AGAINST LIFE -- A BREAK WITH
HISTORY WHICH THE CONSCIENCE OF OUR PEOPLE WILL SOMETIME RECTIFY. 

THE PRESENT CASE IS A MINOR SPECIES OF THE SAME GENUS.  A PERSON WHO
TOOK HIS GUN TO A PAWNSHOP FOR A LOAN UNDOUBTLY HAD "ACQUIRED" THE GUN
PRIOR TO THAT TIME.  IT IS THEREFORE ODD TO THINK OF THE "ACQUISITION"
OCCURRING WHEN HE REDEEMED HIS OWN GUN FROM THE PAWNSHOP.  I AGREE WITH
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, UNITED STATES V. LAISURE,
460 F.2D 709, THAT THE AMBIGUITY SHOULD BE RESOLVED IN FAVOR OF THE
ACCUSED.  THAT IS WHAT WE HAVE QUITE CONSISTENTLY DONE, EXCEPT IN
ROSENBERG, IN THE PAST.  SEE UNITED STATES V. BASS, 404 U.S. 336, 347 -
348, AND CASES CITED.  /1/ 

/1/  CIVIL CASES CITED BY THE COURT, E.G., AMERICAN TOBACCO CO. V.
WERCKMEISTER, 207 U.S. 284, 293, ARE WIDE OF THE MARK.  FOR APPLICATION
OF A LAW THAT SENDS PEOPLE TO PRISON FOR YEARS WHERE CONGRESS HAS NOT
MADE IT CLEAR THEY SHOULD BE THERE, UNITED STATES V. BASS, SUPRA, AT
346, IS ONLY ANOTHER DEVICE AS LACKING IN DUE PROCESS AS CALIGULA'S
PRACTICE OF PRINTING THE LAWS IN SMALL PRINT AND PLACING THEM SO HIGH
ON A WALL THAT THE ORDINARY MAN DID NOT RECEIVE FAIR WARNING. 

"WHEN TAXES OF THIS KIND HAD BEEN PROCLAIMED, BUT NOT PUBLISHED IN
WRITING, INASMUCH AS MANY OFFENSES WERE COMMITTED THROUGH IGNORANCE OF
THE LETTER OF THE LAW, HE AT LAST, ON THE URGENT DEMAND OF THE PEOPLE,
HAD THE LAW POSTED UP, BUT IN A VERY NARROW PLACE AND IN EXCESSIVELY
SMALL LETTERS, TO PREVENT THE MAKING OF A COPY."  SUETONIUS, THE LIVES
OF THE TWELVE CAESARS 192 (MODERN LIB.  ED. 1931). 

HARVEY I. SAFERSTEIN ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

DANNY J. BOGGS ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL
PETERSEN, AND JEROME M. FEIT. 
..END :














HAGANS V. LAVINE, 415 U.S. 528 


       HAGANS ET AL. V. LAVINE, COMMISIONER, NEW YORK DEPARTMENT OF

           SOCIAL SERVICES, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

       SECOND CIRCUIT

        NO. 72 - 6476.  ARGUED DECEMBER 11, 1973-- DECIDED MARCH
25,

           1974; 471 F.2D 347, REVERSED AND REMANDED. 


    PETITIONERS, RECIPIENTS OF PUBLIC ASSISTANCE UNDER THE

  FEDERAL-STATE AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC)

  PROGRAM, BROUGHT THIS ACTION UNDER 42 U.S.C. 1983 AND 28 U.S.C.

  2201 CHALLENGING A NEW YORK REGULATION PERMITTING THE STATE TO

  RECOUP PRIOR UNSCHEDULED PAYMENTS FOR RENT FROM SUBSEQUENT GRANTS

  UNDER THE AFDC PROGRAM, ON  THE GROUND THAT THE REGULATION

  VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT

  AND CONFLICTED WITH THE SOCIAL SECURITY ACT AND IMPLEMENTING

  REGULATIONS OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

(HEW).  INJUNCTIVE AND DECLARATORY RELIEF WAS SOUGHT AND

JURISDICTION WAS INVOKED UNDER 2, U.S.C. 1343 (3) AND (4).  THE

  DISTRICT COURT DECLARED THE RECOUPMENT REGULATION CONTRARY TO THE

  SOCIAL SECURITY ACT AND HEW REGULATIONS AND ENJOINED ITS

  IMPLEMENTATION OR ENFORCEMENT.  THE COURT OF APPEALS REVERSED,

  HOLDING THAT BECAUSE PETITIONERS HAD FAILED TO PRESENT A

  SUBSTANTIAL CONSTITUTIONAL CLAIM, THE DISTRICT COURT LACKED

  JURISDICTION TO ENTERTAIN EITHER THE EQUAL PROTECTION OR THE

  STATUTORY CLAIM.  HELD: 

     1.  THE DISTRICT COURT HAD JURISDICTION UNDER 28 U.S.C. 1343
(3).  PP. 534 - 543. 

     (A) SECTION 1343(3) CONFERRED JURISDICTION TO ENTERTAIN THE

  CONSTITUTIONAL CLAIM IF IT WAS OF SUFFICIENT SUBSTANCE TO SUPPORT

  FEDERAL JURISDICTION, IN WHICH CASE, THE DISTRICT COURT COULD

  HEAR AS A MATTER OF PENDENT JURISDICTION THE CLAIM OF CONFLICT

BETWEEN FEDERAL AND STATE LAW, WITHOUT DETERMINING THAT THE

  LATTER CLAIM IN ITS OWN RIGHT WAS ENCOMPASSED WITH 1343.  P.

  536. 

     (B) WITHIN THE ACCEPTED SUBSTANTIALITY DOCTRINE, PETITIONERS'

  COMPLAINT ALLEGED A CONSTITUTIONAL CLAIM SUFFICIENT TO CONFER

  JURISDICTION ON THE DISTRICT COURT TO PASS ON THE CONTROVERSY,

  SINCE (1) THE COMPLAINT ALLEGED A DEPRIVATION, UNDER COLOR OF

  STATE LAW, OF CONSTITUTIONAL RIGHTS WITHIN THE MEANING OF 1343(3)

AND 1983; (2) THE EQUAL PROTECTION ISSUE WAS NEITHER FRIVOLOUS

  NOR SO INSUBSTANTIAL AS TO BE BEYOND THE DISTRICT COURT'S

  JURISDICTION, AND THE CHALLENGED REGULATION WAS NOT SO CLEARLY

  RATIONAL AS TO REQUIRE NO MEANINFUL CONSIDERATION; AND (3) THE

  CAUSE OF ACTION ALLEGED WAS NOT SO PATENTLY WITHOUT MERIT AS TO

  JUSTIFY A DISMISSAL FOR WANT OF JURISDICTION, BELL V. HOOD, 327

  U.S. 678, WHATEVER MAY BE THE ULTIMATE RESOLUTION OF THE FEDERAL

  ISSUES ON THE MERITS.  PP. 536 - 543. 

     2.  GIVEN A CONSTITUTIONAL QUESTION OVER WHICH THE DISTRICT

  COURT HAD JURISDICTION, IT ALSO HAD JURISDICTION OVER THE

  "STATUTORY"  CLAIM.  THE LATTER CLAIM WAS TO BE DECIDED FIRST AND

  COULD BE DECIDED BY THE SINGLE DISTRICT JUDGE, WHILE THE

  CONSTITUTIONAL CLAIM COULD BE ADJUDICATED ONLY BY A THREE-JUDGE

  COURT AND ONLY IF THE STATUTORY CLAIM WAS PREVIOUSLY REJECTED. 

  PP. 543 - 545. 

     3.  STATE LAW CLAIMS PENDENT TO FEDERAL CONSTITUTIONAL CLAIMS

  CONFERRING JURISDICTION ON A DISTRICT COURT GENERALLY ARE NOT TO

  BE DISMISSED.  GIVEN ADVANTAGES OF ECONOMY AND CONVENIENCE AND NO

  UNFAIRNESS TO LITIGANTS, THEY ARE TO BE ADJUDICATED, PARTICULARLY

WHERE THEY MAY BE DISPOSITIVE AND THEIR DECISION WOULD AVOID

  ADJUDICATION OF FEDERAL CONSTITUTIONAL QUESTIONS.  THERE ARE

  SPECIAL REASONS TO ADJUDICATE THE PENDENT CLAIM WHERE, AS HERE,

  THE CLAIM, ALTHOUGH CALLED "STATUTORY," IS IN REALITY A

  CONSTITUTIONAL CLAIM ARISING UNDER THE SUPREMACY CLAUSE, SINCE

  "FEDERAL COURTS ARE PARTICULARLY APPROPRIATE BODIES FOR THE

  APPLICATION OF PRE-EMPTION PRINCIPLES."  MINE WORKERS V. GIBBS,

  383 U.S. 715, 729.  PP. 545 - 550. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED. 

  POWELL, J., FILED A DISSENTING OPINION, IN WHICH BURGER, C.J.,

  AND REHNQUIST, J., JOINED, POST, P. 550.  REHNQUIST, J., FILED A

  DISSENTING OPINION, IN WHICH BURGER, C. J., AND POWELL, J.,

  JOINED, POST, P. 552. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, RECIPIENTS OF PUBLIC ASSISTANCE UNDER THE COOPERATIVE
FEDERAL-STATE AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM,
/1/  BROUGHT THIS ACTION IN THE DISTRICT COURT FOR THEMSELVES AND THEIR
INFANT CHILDREN AND AS REPRESENTATIVES OF OTHER SIMILARLY SITUATED AFDC
RECIPIENTS.  THEIR SUIT CHALLENGED A PROVISION OF THE NEW YORK CODE OF
RULES AND REGULATIONS PERMITTING THE STATE TO RECOUP PRIOR UNSCHEDULED
PAYMENTS FOR RENT FROM SUBSEQUENT GRANTS UNDER THE AFDC PROGRAM.  /2/
THEY ALLEGED THAT THE RECOUPMENT REGULATION VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND CONTRAVENED THE
PERTINENT PROVISIONS OF THE SOCIAL SECURITY ACT GOVERNING AFDC AND THE
REGULATIONS PROMULGATED THEREUNDER BY THE ADMINISTERING FEDERAL AGENCY,
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW).  /3/  THE
ACTION SOUGHT INJUNCTIVE AND DECLARATORY RELIEF PURSUANT TO 42 U.S.C.
1983 AND 28 U.S.C. 2201, AND JURISDICTION WAS INVOKED UNDER 28 U.S.C.
1343(3) AND (4). 

THE DISTRICT COURT FOUND THAT THE EQUAL PROTECTION CLAIM WAS
SUBSTANTIAL AND PROVIDED A BASIS FOR PENDENT JURISDICTION TO ADJUDICATE
THE SO-CALLED "STATUTORY" CLAIM--, THE ALLEDGED CONFLICT BETWEEN STATE
AND FEDERAL LAW.  AFTER HEARING, THE TRIAL COURT DECLARED THE
RECOUPMENT REGULATION CONTRARY TO THE SOCIAL SECURITY ACT AND HEW
REGULATIONS AND ENJOINED ITS IMPLEMENTATION OR ENFORCEMENT.  FOLLOWING
A REMAND, /4/  THE COURT OF APPEALS REVERSED, HOLDING THAT BECAUSE
PETITIONERS HAD FAILED TO PRESENT A SUBSTANTIAL CONSTITUTIONAL CLAIM,
THE DISTRICT COURT LACKED JURISDICTION TO ENTERTAIN EITHER THE EQUAL
PROTECTION OR THE STATUTORY CLAIM.  471 F.2D 347 (CA2 1973).  THE
JURISDICTIONAL QUESTION BEING AN IMPORTANT ONE, WE GRANTED CERTIORARI. 
412 U.S. 938 (1973).  FOR REASONS SET FORTH BELOW, WE HOLD THAT THE
DISTRICT COURT HAD JURISDICTION UNDER 28 U.S C. 1343(3) TO CONSIDER
PETITIONERS' ATTACK ON THE RECOUPMENT REGULATION.  /5/

        I 

PETITIONERS BROUGHT THIS ACTION UNDER 42 U.S.C. 1983, WHICH
PROVIDES: 

     " EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE ORDINANCE,

  REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY,

  SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED

  STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE

  DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY

  THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED

  IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING

  FOR REDRESS." 

BY ITS TERMS, 1982 EMBRACES PETITIONERS' CLAIMS THAT THE CHALLENGED
REGULATION ENFORCED BY RESPONDENT STATE AND COUNTY WELFARE OFFICIALS
DEPRIVES THEM OF A RIGHT "SECURED BY THE CONSTITUTION AND LAWS," VIZ.,
THE EQUAL PROTECTION OF THE LAWS.  BUT THE FEDERAL CAUSE OF ACTION
CREATED BY THE SECTION DOES NOT BY ITSELF CONFER JURISDICTION UPON THE
FEDERAL DISTRICT COURTS TO ADJUCATE THESE CLAIMS.  ACCORDINGLY,
PETITIONERS RELIED PRINCIPALLY UPON 28 U.S.C. 1343(3): 

     "THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY

  CIVIL ACTION AUTHORIZED BY LAW TO BE COMMENCED BY ANY PERSON:

        *         *         *         *         * 

     "(3) TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,

  STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT,

PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED

  STATES OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF

  CITIZENS OR OF ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED

  STATES . . . ." 

CONCEDELY, 1343 AUTHORIZES A CIVIL ACTION TO "REDRESS THE DEPRIVATION
UNDER COLOR OF ANY STATE . . . REGULATION . . . OF ANY RIGHT . . .
SECURED BY THE CONSTITUTION OF THE UNITED STATES."  SECTION 1343(3)
THEREFORE CONFERRED JURISDICTION UPON THE DISTRICT COURT TO ENTERTAIN
THE CONSTITUTIONAL CLAIM IF IT WAS OF SUFFICIENT SUBSTANCE TO SUPPORT
FEDERAL JURISDICTION.  IF IT WAS, IT IS ALSO CLEAR THAT THE DISTRICT
COURT COULD HEAR AS A MATTER OF PENDENT JURISDICTION THE CLAIM OF
CONFLICT BETWEEN FEDERAL AND STATE LAW, WITHOUT DETERMINING THAT THE
LATTER CLAIM IN ITS OWN RIGHT WAS ENCOMPASSED WITHIN 1343.  ROSADO V.
WYMAN, 397 U.S. 397, 402 - 405 (1970); SEE ALSO N.Y. DEPT. OF SOCIAL
SERVICES V. DUBLINO, 413 U.S. 405, 412 N. 11 (1973). 

THE COURT OF APPEALS RULED THAT PETITIONERS HAD NOT TENDERED A
SUBSTANTIAL CONSTITUTIONAL CLAIM AND ORDERED DISMISSAL OF THE ENTIRE
ACTION FOR WANT OF SUBJECT MATTER JURISDICTION.  THE PRINCIPLE APPLIED
BY THE COURT OF APPEALS--, THAT A "SUBSTANATIAL" QUESTION WAS NECESSARY
TO SUPPORT JURISDICTION--, WAS UNEXCEPTIONABLE UNDER PRIOR CASES.  OVER
THE YEARS THIS COURT HAS REPEATEDLY HELD THAT THE FEDERAL COURTS ARE
WITHOUT POWER TO ENTERTAIN CLAIMS OTHERWISE WITHIN THEIR JURISDICTION
IF THEY ARE "SO ATTENTUATED AND UNSUBSTANTIAL AS TO BE ABSOLUTELY
DEVOID OF MERIT," NEWBURYPORT WATER CO. V. NEWBURYPORT, 193 U.S. 561,
579 (1904); "WHOLLY INSUBSTANTIAL," BAILEY V. PATTERSON, 369 U.S. 31,
33 (1962); "OBVIOUSLY FRIVOLOUS,"  HANNIS DISTILLING CO. V. BALTIMORE,
216 U.S. 285, 288 (1910); "PLAINLY UNSUBSTANTIAL," LEVERING & GARRIGUES
CO. V. MORRIN, 289 U.S. 103, 105 (1933); OR "NO LONGER OPEN TO
DISCUSSION," MCGILVRA V. ROSS, 215 U.S. 70, 80 (1909).  ONE OF THE
PRINCIPAL DECISIONS ON THE SUBJECT, EX PARTE PORESKY, 290 U.S. 30, 31 -
32 (1933) HELD, FIRST, THAT "(IN THE ABSENCE OF DIVERSITY OF
CITIZENSHIP, IT IS ESSENTIAL TO JURISDICTION THAT A SUBSTANTIAL FEDERAL
QUESTION SHOULD BE PRESENTED"; SECOND, THAT A THREE-JUDGE COURT WAS NOT
NECESSARY TO PASS UPON THIS INITIAL QUESTION OF JURISDICTION; AND
THIRD, THAT "(THE QUESTION MAY BE PLAINLY UNSUBSTANTIAL, EITHER BECAUSE
IT IS 'OBVIOUSLY WITHOUT MERIT'  OR BECAUSE 'ITS UNSOUNDNESS SO CLEARLY
RESULTS FROM THE PREVIOUS DECISIONS OF THIS COURT AS TO FORECLOSE THE
SUBJECT AND LEAVE NO ROOM FOR THE INFERENCE THAT THE QUESTION SOUGHT TO
BE RAISED CAN BE THE SUBJECT OF CONTROVERSY.'  LEVERING & GARRIGUES CO.
V. MORRIN, SUPRA; HANNIS DISTILLING CO. V. BALTIMORE, 216 U.S. 285,
288; MC GILVRA V. ROSS, 215 U.S. 70, 80." 

ONLY RECENTLY THIS COURT AGAIN REVIEWED THIS GENERAL QUESTION WHERE
IT AROSE IN THE CONTEXT OF CONVENING A THREE-JUDGE COURT UNDER 28
U.S.C. 2281: 

"' CONSTITUTIONAL INSUBSTANTIALITY' FOR THIS PURPOSE HAS BEEN
EQUATED WITH SUCH CONCEPTS AS 'ESSENTIALLY FICTITIOUS,' BAILEY V.
PATTERSON, 369 U.S., AT 33; 'WHOLLY INSUBSTANTIAL,' IBID.; 'OBVIOUSLY
FRIVOLOUS,'  HANNIS DISTILLING CO. V. BALTIMORE, 216 U.S. 285, 288
(1910); AND 'OBVIOULY WITHOUT MERIT,' EX PARTE PORESKY, 290 U.S. 30, 32
(1933).  THE LIMITING WORDS 'WHOLLY' AND 'OBVIOUSLY' HAVE COGENT LEGAL
SIGNIFICANCE.  IN THE CONTEXT OF THE EFFECT OF PRIOR DECISIONS UPON THE
SUBSTANTIALITY OF CONSTITUTIONAL CLAIMS, THOSE WORDS IMPORT THAT CLAIMS
ARE CONSTITUTIONALLY INSUBSTANTIAL ONLY IF THE PRIOR DECISIONS
INESCAPABLY RENDER THE CLAIMS FRIVOLOUS; PREVIOUS DECISIONS THAT MERELY
RENDER CLAIMS OF DOUBTFUL OR QUESTIONABLE MERIT DO NOT RENDER THEM
INSUBSTANTIAL FOR THE PURPOSES OF 28 U.S.C. 2281.  A CLAIM IS
INSUBSTANTIAL ONLY IF '"ITS UNSOUNDNESS SO CLEARLY RESULTS FROM THE
PREVIOUS DECISIONS OF THIS COURT AS TO FORECLOSE THE SUBJECT AND LEAVE
NO ROOM FOR THE INFERENCE THAT THE QUESTIONS SOUGHT TO BE RAISED CAN BE
THE SUBJECT OF CONTROVERSY."'  EX PARTE PORESKY, SUPRA, AT 32, QUOTING
FROM HANNIS DISTILLING CO. V. BALTIMORE, SUPRA, AT 288; SEE ALSO
LEVERING & GARRIGUES CO. V. MORRIN, 289 U.S. 103, 105 - 106 (1933); MC
GILVRA V. ROSS, 215 U.S. 70, 80 (1909)."  GOOSBY V. OSSER, 409 U.S.
512, 518 (1973). 

THE SUBSTANTIALITY DOCTRINE AS A STATEMENT OF JURISDICTIONAL
PRINCIPLES AFFECTING THE POWER OF A FEDERAL COURT TO ADJUDICATE
CONSTITUTIONAL CLAIMS HAS BEEN QUESTIONED, BELL V. HOOD, 327 U.S. 678,
683 (1946), AND CHARACTERIZED AS "MORE ANCIENT THAN ANALYTICALLY
SOUND," ROSADO V. WYMAN, SUPRA, AT 404.  BUT IT REMAINS THE FEDERAL
RULE AND NEEDS NO RE-EXAMINATION HERE, FOR WE ARE CONVINCED THAT WITHIN
ACCEPTED DOCTRINE PETITIONERS' COMPLAINT ALLEGED A CONSTITUTIONAL CLAIM
SUFFICIENT TO CONFER JURISDICTION ON THE DISTRICT COURT TO PASS ON THE
CONTROVERSY. 

JURISDICTION IS ESSENTIALLY THE AUTHORITY CONFERRED BY CONGRESS TO
DECIDE A GIVEN TYPE OF CASE ONE WAY OR THE OTHER.  THE FAIR V. KOHLER
DIE CO., 228 U.S. 22, 25 (1913).  HERE, 1343(3) AND 1983 UNQUESTIONABLY
AUTHORIZED FEDERAL COURTS TO ENTERTAIN SUITS TO REDRESS THE
DEPRIVATION, UNDER COLOR OF STATE LAW, OF CONSTITUTIONAL RIGHTS.  IT IS
ALSO PLAIN THAT THE COMPLAINT FORMALLY ALLEGED SUCH A DEPRIVATION.  THE
DISTRICT COURT'S JURISDICTION, A MATTER FOR THRESHOLD DETERMINATION,
TURNED ON WHETHER THE QUESTION WAS TOO INSUBSTANTIAL FOR
CONSIDERATION. 

IN DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), AFDC RECIPIENTS
CHALLENGED THE MARYLAND MAXIMUM GRANT REGULATION ON EQUAL PROTECTION
GROUNDS.  WE HELD THAT THE ISSUE SHOULD BE RESOLVED BY INQUIRING
WHETHER THE CLASSIFICATION HAD A RATIONAL BASIS.  FINDING THAT IT DID,
WE SUSTAINED THE REGULATION.  BUT DANDRIDGE EVINCED NO INTENTION TO
SUSPEND THE OPERATION OF THE EQUAL PROTECTION CLAUSE IN THE FIELD OF
SOCIAL WELFARE LAW.  STATE LAWS AND REGULATIONS MUST STILL "BE
RATIONALLY BASED AND FREE FROM INVIDIOUS DISCRIMINATION."  ID., AT
487.  SEE JEFFERSON V. HACKNEY, 406 U.S. 535, 546 (1972); CARTER V.
STANTON, 405 U.S. 669, 671 (1972); CF. SAN ANTONIO SCHOOL DISTRICT V.
RODRIGUEZ, 411 U.S. 1 (1973). 

JUDGED BY THIS STANDARD, WE CANNOT SAY THAT THE EQUAL PROTECTION
ISSUE TENDERED BY THE COMPLAINT WAS EITHER FRIVOLOUS OR SO
INSUBSTANTIAL AS TO BE BEYOND THE JURISDICTION OF THE DISTRICT COURT. 
WE ARE UNAWARE OF ANY CASES IN THIS COURT SPECIFICALLY DEALING WITH
THIS OR ANY SIMILAR REGULATION AND SETTLING THE MATTER ONE WAY OR THE
OTHER.  /6/  NOR IS IT IMMEDIATELY OBVIOUS TO US FROM THE FACE OF THE
COMPLAINT THAT RECOUPING EMERGENCY RENT PAYMENTS FROM FUTURE WELFARE
DISBURSEMENTS, WHICH PETITIONERS ARGUE DEPRIVED NEEDY CHILDREN BECAUSE
OF PARENTAL DEFAULT, WAS SO PATENTLY RATIONAL AS TO REQUIRE NO
MEANINGFUL CONSIDERATION. 

THE COURT OF APPEALS RIGHTLY FELT OBLIGED TO MEASURE PETITIONERS'
COMPLAINT THAT THE CHALLENGED REGULATION VIOLATED THE EQUAL PROTECTION
CLAUSE "BY DISCRIMINATING IRRATIONALLY AND INVIDIOUSLY BETWEEN
DIFFERENT CLASSES OF RECIPIENTS"  /7/  AGAINST THE STANDARD PRESCRIBED
BY DANDRIDGE.  THE COURT OF APPEALS THEN REASONED THAT WITHOUT THE
RECOUPMENT REGULATION, THOSE WHO WERE SUBJECT TO IT WOULD BE PREFERRED
OVER THOSE WHO HAD PAID THEIR FULL RENT OUT OT THEIR NORMAL MONTHLY
GRANT.  THE COURT FURTHER REASONED THAT THE REGULATION PROVIDED AN
INCENTIVE FOR WELFARE RECIPIENTS TO PROPERLY MANAGE THEIR GRANTS AND
NOT BECOME DELINQUENT IN THEIR RENT.  /8/  IT CONCLUDED THAT THE
REGULATION WAS RATIONALLY BASED AND THAT NO SUBSTANTIAL CONSTITUTIONAL
QUESTION WITHIN THE JURISDICTION OF THE DISTRICT COURT HAD BEEN
PRESENTED. 

THIS REASONING WITH RESPECT TO THE RATIONALITY OF THE REGULATION AND
ITS PROPRIETY UNDER THE EQUAL PROTECTION CLAUSE MAY UNTIMATELY PROVE
CORRECT, BUT IT IS NOT IMMEDIATELY OBVIOUS FROM THE DECIDED CASES OR SO
"VERY PLAIN"  /9/  UNDER THE EQUAL PROTECTION CLAUSE.  WE THINK THE
ADMONITION OF BELL V. HOOD, 327 U.S. 678 (1946), SHOULD BE FOLLOWED
HERE: 

     "JURISDICTION ... IS NOT DEFEATED AS RESPONDENTS SEEM TO

  CONTEND, BY THE POSSIBILITY THAT THE AVERMENTS MIGHT FAIL TO

  STATE A CAUSE OF ACTION ON WHICH PETITIONERS COULD ACTUALLY

  RECOVER.  FOR IT IS WELL SETTLED THAT THE FAILURE TO STATE A

  PROPER CAUSE OF ACTION CALLS FOR A JUDGMENT ON THE MERITS AND NOT

  FOR A DISMISSAL FOR WANT OF JURISDICTION.  WHETHER THE COMPLAINT

  STATES A CAUSE OF ACTION ON WHICH RELIEF COULD BE GRANTED IS A

  QUESTION OF LAW AND JUST AS ISSUES OF FACT IT MUST BE DECIDED

AFTER AND NOT BEFORE THE COURT HAS ASSUMED JURISDICTION OVER THE

  CONTROVERSY.  IF THE COURT DOES LATER EXERCISE ITS JURISDICTION

  TO DETERMINE THAT THE ALLEGATIONS IN THE COMPLAINT DO NOT STATE A

  GROUND FOR RELIEF, THEN DISMISSAL OF THE CASE WOULD BE ON THE

  MERITS, NOT FOR WANT OF JURISDICTION."  ID., AT 682 (CITATIONS

  OMITTED).  /10/ 

AS WAS THE CASE IN BELL V. HOOD, WE CANNOT "SAY THAT THE CAUSE OF
ACTION ALLEGED IS SO PATENTLY WITHOUT MERIT AS TO JUSTIFY, EVEN UNDER
THE QUALIFICATIONS NOTED, THE COURT'S DISMISSAL FOR WANT OF
JURISDICTION."  ID., AT 683.  NOR CAN WE SAY THAT PETITIONERS' CLAIM IS
"SO INSUBSTANTIAL, IMPLAUSIBLE, FORECLOSED BY PRIOR DECISIONS OF THIS
COURT OR OTHERWISE COMPLETELY DEVOID OF MERIT AS NOT TO INVOLVE A
FEDERAL CONTROVERSY WITHIN THE JURISDICTION OF THE DISTRICT COURT,
WHATEVER MAY BE THE ULTIMATE RESOLUTION OF THE FEDERAL ISSUES ON THE
MERITS."  ONEIDA INDIAN NATION V. COUNTY OF ONEIDA, 414 U.S. 661, 666 -
667 (1974).  (CITATIONS OMITTED.) 

        II 

GIVEN A CONSTITUTIONAL QUESTION OVER WHICH THE DISTRICT COURT HAD
JURISDICTION, IT ALSO HAD JURISDICTION OVER THE "STATUTORY" CLAIM.  SEE
SUPRA, AT 536.  THE LATTER WAS TO BE DECIDED FIRST AND THE FORMER NOT
REACHED IF THE STATUTORY CLIAM WAS DISPOSITIVE.  CALIFORNIA HUMAN
RESOURCES DEPT. V. JAVA, 402 U.S. 121, 124 (1971); DANDRIDGE V.
WILLIAMS, 397 U.S., AT 475 - 476; ROSADO V. WYMAN, 397 U.S., AT 402;
KING V. SMITH, 392 U.S. 309 (1968).  THE CONSTITUTIONAL CLAIM COULD BE
ADJUDICATED ONLY BY A THREE-JUDGE COURT, BUT THE STATUTORY CLAIM WAS
WITHIN THE JURISDICTION OF A SINGLE DISTRICT JUDGE.  SWIFT & CO. V.
WICKHAM, 382 U.S. 111 (1965); RODADO V. WYMAN, SUPRA, AT 403.  THUS,
THE DISTRICT JUDGE, SITTING ALONE, MOVED DIRECTLY TO THE STATUTORY
CLAIM.  HIS DECISION WAS APPEALED TO THE COURT OF APPEALS, ALTHOUGH HAD
A THREE-JUDGE COURT BEEN CONVENED, AN INJUNCTION ISSUED, AND THE
STATUTORY GROUND ALONE DECIDED, THE APPEAL WOULD BE ONLY TO THIS COURT
UNDER 28 U.S.C. 1253.     THE PROCEDURE FOLLOWED BY THE DISTRICT COURT-
, INITIAL DETERMINATION OF SUBSTANTIALITY AND THEN ADJUDICATION OF THE
"STATUTORY" CLAIM WITHOUT CONVENING A THREE-JUDGE COURT--, MAY APPEAR
AT ODDS WITH SOME OF OUR PRIOR DECISIONS.  SEE, E.G., ENGINEERS, V.
CHICAGO, R.I. & P.R. CO., 382 U.S. 423 (1966); FLORIDA LIME & AVOCADO
GROWERS V. JACOBSEN, 362 U.S. 73 (1960).  BUT, WE THINK IT ACCURATELY
REFLECTS THE RECENT EVOLUTION OF THREE-JUDGE-COURT JURISPRUDENCE, "THIS
COURT'S CONCERN FOR EFFICIENT OPERATION OF THE LOWER FEDERAL COURTS,"
AND "THE CONSTRICTIVE VIEW OF THE THREE-JUDGE (COURT) JURISDICTION
WHICH THIS COURT HAS TRADITIONALLY TAKEN."  SWIFT & CO. V. WICKHAM,
SUPRA, AT 128, 129 (CITATIONS OMITTED).  IN ROSADO V. WYMAN, SUPRA, AT
403, WE SUGGESTED THAT 

"(EVEN HAD THE CONSTITUTIONAL CLAIM NOT BEEN DECLARED MOOT, THE MOST
APPROPRIATE COURSE MAY WELL HAVE BEEN TO REMAND TO THE SINGLE DISTRICT
JUDGE FOR FINDINGS AND THE DETERMINATION OF THE STATUTORY CLAIM RATHER
THAN ENCUMBER THE DISTRICT COURT, AT A TIME WHEN DISTRICT COURT
CLAENDARS ARE OVERBURDENED, BY CONSUMING THE TIME OF THREE FEDERAL
JUDGES IN A MATTER THAT WAS NOT REQUIRED TO BE DETERMINED BY A THREE
JUDGE COURT.  SEE SWIFT & CO. V. WICKHAM, 382 U.S. 111 (1965)." 

IT IS TRUE THAT THE CONSTITUTIONAL CLAIM WOULD WARRANT CONVENING A
THREE-JUDGE COURT AND THAT IF A SINGLE JUDGE REJECTS THE STATUTORY
CLAIM, A THREE-JUDGE COURT MUST BE CALLED TO CONSIDER THE
CONSTITUTIONAL ISSUE.  NEVERTHELESS, THE COINCIDENCE OF A
CONSTITUTIONAL AND STATUTORY CLAIM SHOULD NOT AUTOMATICALLY REQUIRE A
SINGLE-JUDGE DISTRICT COURT TO DEFER TO A THREE-JUDGE PANEL, WHICH, IN
VIEW OF WHAT WE HAVE SAID IN ROSADO V. WYMAN, SUPRA, COULD THEN MERELY
PASS THE STATUTORY CLAIM BACK TO THE SINGLE JUDGE.  SEE KELLY V.
ILLINOIS BELL TELEPHONE CO., 325 F.2D 148, 151 (CA7 1963); CHICAGO,
DULUTH & GEORGIAN BAY TRANSIT CO. V. NIMS, 252 F.2D 317, 319 - 320 (CA6
1958); DOE V. LAVINE, 347 F. SUPP. 357, 359 - 360 (SDNY 1972); CF.
BRYANT V. CARLESON, 444 F.2D 353, 358 - 359 (CA9 1971); " IN FACT, IT
WOULD BE GROSSLY INEFFICIENT TO SEND A THREE-JUDGE COURT A CLAIM WHICH
WILL ONLY BE SENT IMMEDIATELY BACK.  THIS INEFFICIENCY IS ESPECIALLY
APPARENT IF THE SINGLE JUDGE'S DECISION RESOLVES THE CASE, FOR THERE IS
THEN NO NEED TO CONVENE THE THREE-JUDGE COURT."  NORTON V. RICHARDSON,
352 F. SUPP. 596, 599 (MD. 1972) (CITATIONS OMITTED).  SECTION 2281
DOES NOT FORBID THIS PRACTICE, AND WE ARE NOT INCLINED TO READ THAT
STATUTE "IN ISOLATION WITH MUTILATING LITERALNESS . . . ."  FLORIDA
LIME & AVOCADO GROWERS V. JACOBSEN, SUPRA, AT 94 (FRANKFURTER, J.,
DISSENTING). 

        III 

TAKING A JAUNDICED VIEW OF THE CONSTITUTIONAL CLAIM, THE DISSENTERS
WOULD HAVE THE DISTRICT COURT DISMISS THE SUPREMACY CLAUSE
("STATUTORY") ISSUE, CONVENE A THREE-JUDGE COURT AND REJECT THE
CONSTITUTIONAL CLAIM, ALL OF THIS APPARENTLY, AS AN EXERCISE OF THE
DISCRETION WHICH THE DISTRICT COURT, UNDER MINE WORKERS V. GIBBS, 383
U.S. 715 (1966), IS CLAIMED TO HAVE OVER THE PENDENT FEDERAL CLAIM. 
BUT GIBBS WAS ORIENTED TO STATE LAW CLAIMS PENDENT TO FEDERAL CLAIMS
CONFERRING JURISDICTION ON THE DISTRICT COURT.  PENDENT JURISDICTION
OVER STATE CLAIMS WAS DESCRIBED AS A DOCTRINE OF DISCRETION NOT TO BE
ROUTINELY EXERCISED WITHOUT CONSIDERING THE ADVANTAGES OF JUDICIAL
ECONOMY, CONVENIENCE, AND FAIRNESS TO LITIGANTS.  FOR, "(NEEDLESS
DECISIONS OF STATE LAW SHOULD BE AVOIDED BOTH AS A MATTER OF COMITY AND
TO PROMOTE JUSTICE BETWEEN THE PARTIES, BY PROCURING FOR THEM A SURER
FOOTED READING OF APPLICABLE LAW."  ID., AT 726.  /11/ 

IN LIGHT OF THE DISSENT'S TREATMENT OF GIBBS, SEVERAL OBSERVATIONS
ARE APPROPRIATE.  FIRST, IT IS EVIDENT FROM GIBBS THAT PENDENT STATE
LAW CLAIMS ARE NOT ALWAYS, OR EVEN ALMOST ALWAYS, TO BE DISMISSED AND
NOT ADJUDICATED.  ON THE CONTRARY, GIVEN ADVANTAGES OF ECONOMY AND
CONVENIENCE AND NO UNFAIRNESS TO LITIGANTS, GIBBS CONTEMPLATES
ADJUDICATION OF THESE CLAIMS. 

SECOND, IT WOULD REASONABLY FOLLOW THAT OTHER CONSIDERATIONS MAY
WARRANT ADJUDICATION RATHER THAN DISMISSAL OF PENDENT STATE CLAIMS.  IN
SILER V. LOUISVILLE & NASHVILLE R. CO., 213 U.S. 175 (1909) THE COURT
HELD THAT THE STATE ISSUES SHOULD BE DECIDED FIRST AND BACAUSE THESE
CLAIMS WERE DISPOSITIVE, FEDERAL QUESTIONS NEED NOT BE REACHED: 

     " WHERE A CASE IN THIS COURT CAN BE DECIDED WITHOUT REFERENCE

  TO QUESTIONS ARISING UNDER THE FEDERAL CONSTITUTION, THAT COURSE

  IS USUALLY PURSUED AND IS NOT DEPARTED FROM WITHOUT IMPORTANT

  REASONS.  IN THIS CASE WE THINK IT MUCH BETTER TO DECIDE IT WITH

  REGARD TO THE QUESTION OF A LOCAL NATURE, INVOLVING THE

  CONSTRUCTION OF THE STATE STATUTE AND THE AUTHORITY THEREIN GIVEN

 TO THE COMMISSION TO MAKE THE ORDER IN QUESTION, RATHER THAN TO

  UNNECESSARILY DECIDE THE VARIOUS CONSTITUTIONAL QUESTIONS

  APPEARING IN THE RECORD."  ID., AT 193. 

SILER IS NOT AN ODDITY.  THE COURT HAS CHARACTERISTICALLY DEALT FIRST
WITH POSSIBLY DISPOSITIVE STATE LAW CLAIMS PENDENT TO FEDERAL
CONSTITUTIONAL CLAIMS.  SEE E.G., LOUISVILLE & NASHVILLE R. CO. V.
GARRETT, 231 U.S. 298, 303 - 304, 310 (1913); OHIO TAX CASES, 232 U.S.
576, 586 - 587 (1914); GREENE V. LOUISVILLE & INTERURBAN R. CO., 244
U.S. 499, 508 - 509 (1917); LOUISVILLE & NASHVILLE R. CO. V. GREENE,
244 U.S. 522, 527 (1917); DAVIS V. WALLACE, 257 U.S. 478, 482, 485
(1922); CHICAGO G. W. R. CO. V. KENDALL, 266 U.S. 94, 97 - 98 (1924);
CINCINNATI V. VESTER, 281 U.S. 439, 448 - 449 (1930); HILLSBOROUGH V.
CROMWELL, 326 U.S. 620, 629 (1946).  THE DOCTRINE IS NOT IRONCLAD, SEE
STERLING V. CONSTANTIN, 287 U.S. 378, 393 - 394, 396 (1932), BUT IT IS
RECURRINGLY APPLIED, /12/  AND, AT THE VERY LEAST, IT PRESUMES THE
ADVISABILITY OF DECIDING FIRST THE PENDENT, NONCONSTITUTIONAL ISSUE. 

GIBBS DID NOT CITE SILER OR LIKE CASES, NOR DID IT PURPORT TO CHANGE
THE ORDINARY RULE THAT A FEDERAL COURT SHOULD NOT DECIDE FEDERAL
CONSTITUTIONAL QUESTIONS WHERE A DISPOSITIVE NONCONSTITUTIONAL GROUND
IS AVAILABLE.  THE DISSENT UNCRITICALLY RELIES ON SILER BUT IGNORES THE
PREFERENCE STATED IN THAT CASE FOR DECIDING NONCONSTITUTIONAL CLAIMS
EVEN THOUGH THEY ARE PENDENT AND, STANDING ALONE, ARE BEYOND THE
JURISDICTION OF THE FEDERAL COURT.  /13/ 

THIRD, THE RATIONALE OF GIBBS CENTERS UPON CONSIDERATIONS OF COMITY
AND THE DESIRABILITY OF HAVING A RELIABLE AND FINAL DETERMINATION OF
THE STATE CLAIM BY STATE COURTS HAVING MORE FAMILIARITY WITH THE
CONTROLLING PRINCIPLES AND THE AUTHORITY TO RENDER A FINAL JUDGMENT. 
THESE CONSIDERATIONS FAVORING STATE ADJUDICATION ARE WHOLLY IRRELEVANT
WHERE THE PENDENT CLAIM IS FEDERAL BUT IS ITSELF BEYOND THE
JURISDICTION OF THE DISTRICT COURT FOR FAILURE TO SATISFY THE AMOUNT IN
CONTROVERSY.  IN SUCH CASES, THE FEDERAL COURT'S RENDITION OF FEDERAL
LAW WILL BE AT LEAST AS SURE-FOOTED AND LASTING AS ANY JUDGMENT FROM
THE STATE COURTS.  /14/ 

THE MOST RELEVANT CASES FOR OUR PURPOSES, OF COURSE, ARE THOSE
DECISIONS SUCH AS KING V. SMITH, 392 U.S. 309 (1968), ROSADO V. WYMAN,
397 U.S. 397 (1970), AND DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970),
WHERE THE JURISDICTIONAL CLAIM ARISES UNDER THE FEDERAL CONSTITUTION
AND THE PENDENT CLAIM, ALTHOUGH DENOMINATED "STATUTORY,"  IS IN REALITY
A CONSTITUTIONAL CLAIM ARISING UNDER THE SUPREMACY CLAUSE.  IN THESE
CASES THE COURT HAS CHARACTERISTICALLY DEALT WITH THE "STATUTORY" CLAIM
FIRST "BECAUSE IF THE APPELLEES' POSITION ON THIS QUESTION IS CORRECT,
THERE IS NO OCCASION TO REACH THE CONSTITUTIONAL ISSUES.  ASHWANDER V.
TVA, 297 U.S. 288, 346 - 347 (BRANDEIS, J., CONCURRING); ROSENBERG V.
FLEUTI, 374 U.S. 449."  DANDRIDGE V. WILLIAMS, SUPRA, AT 475 - 476. 

IN NONE OF THESE CASES DID THE COURT THINK THAT WITH JURISDICTION
FAIRLY ESTABLISHED, A FEDERAL COURT, UNDER GIBBS, MUST NEVERTHELESS
DECIDE THE CONSTITUTIONAL ISSUE AND AVOID THE STATUTORY CLAIM IF, UPON
WEIGHING THE TWO CLAIMS, THE STATUTORY CLAIM IS STRONG AND THE
CONSTITUTIONAL CLAIM WEAK.  ON THE CONTRARY, MR. JUSTICE HARLAN,
WRITING FOR THE COURT IN ROSADO V. WYMAN, AND WITH THE PRINCIPLES OF
GIBBS WELL IN MIND, NOTED THAT THE PENDENT STATUTORY QUESTION WAS
ESSENTIALLY ONE OF THE FEDERAL POLICY AND THAT THE ARGUMENT FOR THE
EXERCISE OF PENDENT JURISDICTION WAS "'PARTICULARLY STRONG.'"  397
U.S., AT 404.  AND GIBBS ITSELF OBSERVED THE "SPECIAL REASON FOR THE
EXERCISE OF PENDENT JURISDICTION" WHERE THE SUPREMACY CLAUSE IS
IMPLICATED:  "THE FEDERAL COURTS ARE PARTICULARLY APPROPRIATE BODIES
FOR THE APPLICATION OF PRE-EMPTION PRINCIPLES."  383 U.S., AT 729. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

             SO ORDERED. 

/1/  AFDC IS ONE OF SEVERAL MAJOR CATEGORICAL PUBLIC ASSISTANCE
PROGRAMS ESTABLISHED BY THE SOCIAL SECURITY ACT OF 1935, AND AS WE
DESCRIBED IN KING V. SMITH, 392 U.S. 309, 316 - 317 (1968), IT IS
FOUNDED ON A SCHEME OF COOPERATIVE FEDERALISM:  IT IS FINANCED LARGELY
BY THE FEDERAL GOVERNMENT, ON A MATCHING FUND BASIS, AND IS
ADMINISTERED BY THE STATE.  STATES ARE NOT REQUIRED TO PARTICIPATE IN
THE PROGRAM, BUT THOSE WHICH DESIRE TO TAKE ADVANTAGE OF THE
SUBSTANTIAL FEDERAL FUNDS AVAILABLE FOR DISTRIBUTION TO NEEDY CHILDREN
ARE REQUIRED TO SUBMIT AN AFDC PLAN FOR THE APPROVAL OF THE SECRETARY
OF HEALTH, EDUCATION, AND WELFARE (HEW).  49 STAT. 627, 42 U.S.C. 601,
602, 603, AND 604.  SEE (U.S. ADVISORY COMMISSION REPORT ON
INTERGOVERNMENTAL RELATIONS, STATUTORY AND ADMINISTRATIVE CONTROLS
ASSOCIATED WITH FEDERAL GRANTS FOR PUBLIC ASSISTANCE 21 - 23 (1964)). 
THE PLAN MUST CONFORM WITH SEVERAL REQUIREMENTS OF THE SOCIAL SECURITY
ACT AND WITH RULES AND REGULATIONS PROMULGATED BY HEW.  49 STAT. 627,
AS AMENDED, 42 U.S.C. 602 (1964 ED., SUPP. II).  SEE ALSO HEW HANDBOOK
OF PUBLIC ASSISTANCE ADMINISTRATION, PT. IV, 2200, 2300 . . . ."  SEE
ALSO ROSADO V. WYMAN, 397 U.S. 397, 407 - 409 (1970). 

UNDER THE SOCIAL SECURITY ACT, HEW WITHHOLDS FEDERAL FUNDS FOR
IMPLEMENTATION OF A STATE AFDC PLAN UNTIL COMPLIANCE WITH THE ACT AND
THE DEPARTMENT'S REGULATIONS.  HEW MAY ALSO TERMINATE PARTIALLY OR
ENTIRELY FEDERAL PAYMENTS IF "IN THE ADMINISTRATION OF THE (STATE) PLAN
THERE IS A FAILURE TO COMPLY SUBSTANTIALLY WITH ANY PROVISION REQUIRED
BY SECTION 602(A) OF (THE ACT) TO BE INCLUDED IN THE PLAN."  42 U.S.C.
604.  SEE KING V. SMITH, SUPRA, AT 317 N. 12; ROSADO V. WYMAN, SUPRA,
AT 420 - 422. 

/2/  THE CHALLENGED REGULATION PROVIDES, IN PERTINENT PART: 

"(G) PAYMENT FOR SERVICES AND SUPPLIES ALREADY RECEIVED.  ASSISTANCE
GRANTS SHALL BE MADE TO MEET ONLY CURRENT NEEDS.  UNDER THE FOLLOWING
SPECIFIED CIRCUMSTANCES PAYMENT FOR SERVICES OR SUPPLIES ALREADY
RECEIVED IS DEEMED A CURRENT NEED:

        .         .     .         .         . 

"(7) FOR A RECIPIENT OF PUBLIC ASSISTANCE WHO IS BEING EVICTED FOR
NONPAYMENT OF RENT FOR WHICH A GRANT HAS BEEN PREVIOUSLY ISSUED, AN
ADVANCE ALLOWANCE MAY BE PROVIDED TO PREVENT SUCH EVICTION OR REHOUSE
THE FAMILY; AND SUCH ADVANCE SHALL BE DEDUCTED FROM SUBSEQUENT GRANTS
IN EQUAL AMOUNTS OVER NOT MORE THAN THE NEXT SIX MONTHS.  WHEN THERE IS
A RENT ADVANCE FOR MORE THAN ONE MONTH, OR MORE THAN ONE RENT ADVANCE
IN A 12 MONTH PERIOD, SUBSEQUENT GRANTS FOR RENT SHALL BE PROVIDED AS
RESTRICTED PAYMENTS IN ACCORDANCE WITH PART 381 OF THIS TITLE."  18
N.Y.C.R.R. 352.7(G) (7). 

AS AFDC RECIPIENTS, PETITIONERS RECEIVE MONTHLY GRANTS CALCULATED TO
PROVIDE 90% OF THEIR FAMILY NEEDS FOR SHELTER, FUEL, AND OTHER BASIC
NECESSITIES.  FOR ONE REASON OR ANOTHER, EACH PETITIONER WAS UNABLE TO
PAY HER RENT, AND FACED WITH IMMINENT EVICTION, SHE RECEIVED EMERGENCY
RENT PAYMENTS FROM THE NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES. 
BECAUSE THE STATE CHARACTERIZED THESE PAYMENTS AS "ADVANCES," THE
AMOUNT OF THESE DISBURSEMENTS WAS DEDUCTED OR RECOUPED FROM
PETITIONERS' SUBSEQUENT MONTHLY FAMILIAL ASSISTANCE GRANTS PURSUANT TO
352.7(G)(7). 

/3/  PETITIONERS ALLEGED THAT THE NEW YORK STATE RECOUPMENT
REGULATION WAS CONTRARY TO THE FOLLOWING PROVISIONS OF THE FEDERAL
STATUTE AND REGULATIONS BECAUSE IT ASSUMED, CONTRARY TO FACT, THAT
THOSE FUNDS, EXTENDED TO A RECIPIENT TO SATISFY A CURRENT EMERGENCY
RENT NEED, REMAIN AVAILABLE AS INCOME FOR THE FAMILY'S NEED DURING THE
MANDATED SIX-MONTH RECOUPMENT PERIOD. 

TITLE 42 U.S.C. 602 (A)(7) AND (A)(10) STATE IN PERTINENT PART: 

"(A) A STATE PLAN FOR AID AND SERVICES TO NEEDY FAMILIES WITH
CHILDREN MUST . . . (7) EXCEPT AS MAY BE OTHERWISE PROVIDED IN CLAUSE
(8), PROVIDE THAT THE (ADMINISTERING) STATE AGENCY SHALL, IN
DETERMINING NEED, TAKE INTO CONSIDERATION ANY OTHER INCOME AND
RESOURCES OF ANY CHILD OR RELATIVE CLAIMING AID TO FAMILIES WITH
DEPENDENT CHILDREN, OR ANY OTHER INDIVIDUAL (LIVING IN THE SAME HOME AS
SUCH CHILD AND RELATIVE) WHOSE NEEDS THE STATE DETERMINES SHOULD BE
CONSIDERED IN DETERMINING THE NEED OF THE CHILD OR RELATIVE CLAIMING
SUCH AID, AS WELL AS ANY EXPENSES REASONABLY ATTRIBUTABLE TO THE
EARNING OF ANY SUCH INCOME . . . .

.         .         .         .         . 

"(10) PROVIDE, EFFECTIVE JULY 1, 1951, THAT ALL INDIVIDUALS WISHING
TO MAKE APPLICATION FOR AID TO FAMILIES WITH DEPENDENT CHILDREN SHALL
HAVE OPPORTUNITY TO DO SO, AND THAT AID TO FAMILIES WITH DEPENDENT
CHILDREN SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE
INDIVIDUALS . . . ."     45 CFR 233.20(A)(3)(II)(C): 

"(A) REQUIREMENTS FOR STATE PLANS.  A STATE PLAN FOR OAA, AFDC, AB,
APTD OR AABD MUST, AS SPECIFIED BELOW:

        .         .         .         .        . 

"(3) . . . . 

(II) PROVIDE THAT, IN ESTABLISHING FINANCIAL ELIGIBILITY AND THE
AMOUNT OF THE ASSISTANCE PAYMENT: . . . .(C) ONLY SUCH NET INCOME AS IS
ACTUALLY AVAILABLE FOR CURRENT USE ON A REGULAR BASIS WILL BE
CONSIDERED, AND ONLY CURRENTLY AVAILABLE RESOURCES WILL BE CONSIDERED .
. . ."     /4/  ON APPEAL FROM THE DISTRICT COURT'S ENTRY OF THE
INJUNCTION, THE COURT OF APPEALS WITHOUT EXTENDED DISCUSSION FOUND
JURISDICTION FOR THE 1983 ACTION UNDER 28 U.S.C. 1343(3).  WITHOUT
PASSING ON THE MERITS OF THE DISTRICT COURT'S FINDINGS AND CONCLUSIONS,
THE COURT OF APPEAL, WITH ONE JUDGE DISSENTING, ORDERED A REMAND TO
THAT COURT TO DETERMINE WHETHER THE RECOUPMENT OF PRIOR ADVANCE RENT
PAYMENTS FROM CURRENT GRANTS IS A "REDUCTION IN GRANT" THAT WOULD
TRIGGER THE NEW YORK FAIR-HEARING PROCEDURES UNDER 18 N.Y.C.R.R.
351.26.  462 F.2D 928 (CA2 1972). 

ON REMAND THE DISTRICT COURT ALLOWED ADDITIONAL PARTIES WHO HAD
RECEIVED FAIR HEARINGS TO INTERVENE AND FILE A COMPLAINT.  AT THE
INVITATION OF THE COURT, HEW FILED AN AMICUS CURIAE BRIEF WHICH
CONCLUDED THAT "THE NEW YORK REGULATIONS DOES CONTRAVENE FEDERAL
REQUIREMENTS BECAUSE IT ASSUMES FOR PARTICULAR MONTHS THE EXISTENCE OF
INCOME AND RESOURCES WHICH BY DEFINITION ARE NOT CURRENTLY AVAILABLE
FOR SUCH MONTHS."  BRIEF FOR PETITIONERS APPENDIX 2.  THE DISTRICT
COURT ONCE AGAIN HELD THE RECOUPMENT REGULATION INVALID AS VIOLATIVE OF
THE SOCIAL SECURITY ACT AND HEW REGULATIONS AND ENJOINED ITS
ENFORCEMENT AND IMPLEMENTATION. 

/5/  IN VIEW OF OUR DISPOSITION OF THIS CASE, WE DO NOT REACH THE
QUESTION WHETHER, WHOLLY ASIDE FROM THE PENDENT-JURISDICTION RATIONALE
RELIED UPON BY THE DISTRICT COURT, OTHER VALID GROUNDS EXISTED FOR
SUSTAINING ITS JURISDICTION TO ENTERTAIN AND DECIDE THE CLAIM OF
CONFLICT BETWEEN FEDERAL AND STATE LAW.  IT HAS BEEN SUGGESTED, FOR
EXAMPLE, THAT THE CONFLICT QUESTION IS ITSELF A CONSTITUTIONAL MATTER
WITHIN THE MEANING OF 1343(3).  CONNECTICUT UNION OF WELFARE EMPLOYEES
V. WHITE, 55 F.R.D. 481, 486 (CONN. 1972).  FOR PURPOSES OF
INTERPRETING AND APPLYING 28 U.S.C. 2281, THE THREE-JUDGE-COURT
PROVISION, A CLAIM OF CONFLICT BETWEEN FEDERAL AND STATE LAW HAS BEEN
DENIMINATED A CLAIM NOT REQUIRING A THREE-JUDGE COURT.  SWIFT & CO. V.
WICKHAM, 382 U.S. 111 (1965).  BUT SWIFT ITSELF RECOGNIZED THAT A SUIT
TO HAVE A STATE STATUTE DECLARED VOID AND TO SECURE THE BENEFITS OF THE
FEDERAL STATUTE WITH WHICH THE STATE LAW IS ALLEGEDLY IN CONFLICT
CANNOT SUCCEED WITHOUT ULTIMATE RESORT TO THE FEDERAL CONSTITUTION--,
"TO BE SURE, ANY DETERMINATION THAT A STATE STATUTE IS VOID FOR
OBSTRUCTING A FEDERAL STATUTE DOES REST ON THE SUPREMACY CLAUSE OF THE
FEDERAL CONSTITUTION."  ID., AT 125.  MOREOVER, WHEN WE HAVE PREVIOUSLY
DETERMINED THAT STATE AFDC LAWS DO NOT CONFORM TO THE SOCIAL SECURITY
ACT OR HEW REGULATIONS, THEY HAVE BEEN INVALIDATED UNDER THE SUPREMACY
CLAUSE.  SEE TOWNSEND V. SWANK, 404 U.S. 282, 286 (1971).  IT IS
THEREFORE URGED THAT THE "SECURED BY THE CONSTITUTION" LANGUAGE OF
1343(3) SHOULD NOT BE CONSTRUED TO EXCLUDE SUPREMACY CLAUSE ISSUES. 
THAT QUESTION WE LEAVE FOR ANOTHER DAY. 

PETITIONERS CONTEND THAT 1983 AUTHORIZED SUITS TO VINDICATE RIGHTS
UNDER THE "LAWS" OF THE UNITED STATES AS WELL AS UNDER THE CONSTITUTION
AND THAT A SUIT BROUGHT UNDER 1983 TO VINDICATE A STATUTORY RIGHT UNDER
THE SOCIAL SECURITY ACT, IS A SUIT UNDER AN ACT OF CONGRESS "PROVIDING
FOR THE PROTECTION OF CIVIL RIGHTS, INCLUDING THE RIGHT TO VOTE" WITHIN
THE MEANING OF 1343(4).  THEY FURTHER ARGUE THAT IN ANY EVENT, 1343(3)
IN PARTICULAR, AND 1343 IN GENERAL, SHOULD BE CONSTRUED TO INVEST THE
DISTRICT COURTS WITH JURISDICTION TO HEAR ANY SUIT AUTHORIZED BY 1983. 
THESE ISSUES WE ALSO DO NOT REACH.  SEE ROSADO V. WYMAN, 397 U.S., AT
405 N. 7; SEE ALSO HERZER, FEDERAL JURISDICTION OVER STATUTORILY-BASED
WELFARE CLAIMS, 6 HARV. CIV. RIGHTS-CIV.  LIB.  L. REV. 1, 16 - 18
(1970); NOTE, FEDERAL JURISDICTION OVER CHALLENGES TO STATE WELFARE
PROGRAMS, 72 COL. L. REV. 1404, 1405 - 1435 (1972); NOTE, FEDERAL
JUDICIAL REVIEW OF STATE WELFARE PRACTICES, 67 COL. L. REV. 84, 109 -
115 (1967). 

SEVERAL PAST DECISIONS OF THIS COURT CONCERNING CHALLENGES BY
FEDERAL CATEGORICAL ASSISTANCE RECIPIENTS TO STATE WELFARE REGULATIONS
HAVE EITHER ASSUMED THAT JURISDICTION EXISTED UNDER 1343 OR SO STATED
WITHOUT ANALYSIS.  SEE, E.G., CARLESON V. REMILLARD, 406 U.S. 598
(1972); CARTER V. STANTON, 405 U.S. 669, 671 (1972); TOWNSEND V. SWANK,
404 U.S., AT 284 N. 2; CALIFORNIA HUMAN RESOURCES DEPT. V. JAVA, 402
U.S. 121 (1971); DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970); GOLDBERG
V. KELLY, 397 U.S. 254 (1970); KING V. SMITH, 392 U.S., AT 312 N. 3;
DAMICO V. CALIFORNIA, 389 U.S. 416 (1967).  IN NONE OF THESE CASES WAS
THE JURISDICTIONAL ISSUE SQUARELY RAISED AS A CONTENTION IN THE
PETITIONS FOR CERTIORARI, JURISDICTIONAL STATEMENTS, OR BRIEFS FILED IN
THIS COURT.  SEE EDELMAN V. JORDAN, POST, AT 670 - 671.  MOREOVER, WHEN
QUESTIONS OF JURISDICTION HAVE BEEN PASSED ON IN PRIOR DECISIONS SUB
SILENTIO, THIS COURT HAS NEVER CONSIDERED ITSELF BOUND WHEN A
SUBSEQUENT CASE FINALLY BRINGS THE JURISDICTIONAL ISSUE BEFORE US.
UNITED STATES V. MORE, 3 CRANCH 159, 172 (1805); KING MFG. CO. V.
AUGUSTA, 277 U.S. 100, 134 - 135, N. 21 (1928) (BRANDEIS, J.,
DISSENTING).  WE THEREFORE APPROACH THE QUESTION OF THE DISTRICT
COURT'S JURISDICTION TO ENTERTAIN THIS SUIT AS AN OPEN ONE CALLING FOR
A CANVASS OF THE RELEVANT JURISDICTIONAL CONSIDERATIONS.  FLORIDA LIME
& AVOCADO GROWERS V. JACOBSEN, 362 U.S. 73, 88 (1960) (FRANKFURTER, J.,
DISSENTING). 

/6/  THOSE DISTRICT COURTS THAT HAVE RULED ON SIMILARLY DRAFTED
STATE RECOUPMENT PROVISIONS HAVE FOUND THAT THEY WERE NOT RATIONALLY
RELATED TO THE DECLARED PURPOSES OF THE AFDC PROGRAM AND WERE THEREFORE
INVLAID UNDER THE SOCIAL SECURITY ACT AND HEW REGULATIONS.  IN COOPER
V. LAUPHEIMER, 316 F. SUPP. 264 (ED PA. 1970), THE DISTRICT COURT,
AFTER FINDING THE EQUAL PROTECTION CLAIM SUBSTANTIAL, INVALIDATED A
PENNSYLVANIA REGULATION THAT RECOUPED OVER A TWO-MONTH PERIOD ALLEGED
OVERPAYMENTS FROM A FAMILY'S ASSISTANCE GRANTS.  THE COURT FOUND THE
REGULATION INCONSISTENT WITH THE SOCIAL SECURITY ACT FOR SEVERAL
REASONS, INCLUDING, INTER ALIA, THE PUNISHMENT OF THE DEPENDENT CHILD
BY DEPRIVING HIM OF A SUBSTANTIAL AMOUNT OF HIS AFDC ASSISTANCE BECAUSE
HIS MOTHER EITHER MISTAKENLY OR FRAUDULENTLY OBTAINED AN EXTRA PAYMENT
MONTHS AGO.  (THE STATE CANNOT JUSTIFY ITS (ARBITRARY) METHOD OF
RESTITUTION BY ASSERTING THAT PROPER MANAGEMENT OF FUNDS WOULD PRODUCE
SUCH A (CASH) RESERVE.  THE STATE CANNOT PERMIT A CHILD TO STARVE OR BE
DEPRIVED OF AID THAT HE NEEDS BECAUSE OF THE MOTHER'S BUDGETARY
MISMANAGEMENT.  THE SOCIAL SECURITY ACT SPECIFIES REMEDIES FOR SUCH A
SITUATION . . . ."  ID., AT 269. 

IN BRADFORD V. JURAS, 331 F.SUPP.  167 (ORE.  1971), THE DISTRICT
COURT FOUND THAT IT HAD SUBJECT- MATTER JURISDICTION OVER THE
CONSTITUTIONAL AND STATUTORY CHALLENGE TO AN OREGON REGULATION
AUTHORIZING RECOUPMENT OF OVERPAYMENTS FROM CURRENT ASSISTANCE GRANTS. 
MEASURING THE REGULATION AGAINST THE GOALS OF THE AFDC PROGRAM, THE
COURT INVALIDATED IT AS INCONSISTENT WITH FEDERAL LAW. 

"THE PRIMARY CONCERN OF CONGRESS IN ESTABLISHING THE AFDC PROGRAM
WAS THE WELFARE AND PROTECTION OF THE NEEDY DEPENDENT CHILD.  42 U.S.C.
601; KING V. SMITH, 392 U.S. 309, 313 . . . (1968).  THIS CONCERN IS
THWARTED WHEN RECOUPMENT FROM CURRENT GRANTS TAKES MONEY FROM THE CHILD
TO PENALIZE THE MISCONDUCT OF ITS PARENT. 

        .         .         .         .         . 

". . . THE CHILD-ORIENTED POLICY OF THE AFDC PROGRAM REQUIRES THAT
CHILDREN WITH EQUAL NEEDS BE TREATED EQUALLY.  THE FACT THAT A PARENT
RECIPIENT HAS ACTED WRONGFULLY IN THE PAST BY WITHHOLDING INFORMATION
DOES NOT JUSTIFY REDUCING THE SUBSISTENCE LEVEL OF HER CHILDREN BELOW
THAT OF OTHER NEEDY CHILDREN."  331 F. SUPP., AT 170. 

IN HOLLOWAY V. PARHAM, 340 F. SUPP. 336 (ND GA. 1972), AN EQUAL
PROTECTION AND DUE PROCESS CHALLENGE TO A GEORGIA STATUTE MANDATING
RECOUPMENT FROM FUTURE GRANTS FOR PAST UNLAWFUL PAYMENTS WAS DEEMED
SUBSTANTIAL ENOUGH TO WARRANT THE CONVENING OF A THREE-JUDGE COURT. 
ADDRESSING THE PENDENT CLAIM OF INCONSISTENCY WITH THE SOCIAL SECURITY
ACT AND HEW REGULATIONS, THE COURT RULED THAT THE LAW WAS VALID BECAUSE
IT REQUIRED A PRERECOUPMENT DETERMINATION THAT ALL OR PART OF THE
OVERPAYMENTS ARE CURRENTLY AVAILABLE TO THE PARENT AND THE CHILDREN. 

ALTHOUGH IT DID NOT EXPLORE THE QUESTION IN DEPTH, THE FIRST COURT
OF APPEALS PANEL IN THIS CASE THAT PASSED UPON THE INJUNCTION FOUND
JURISDICTION IN THE DISTRICT COURT PURSUANT TO 28 U.S.C. 1343(3) ON THE
AUTHORITY OF THE COURT'S DECISION IN CARTER V. STANTON, 405 U.S. 669
(1972).  THERE WE NOTED IN A SUIT CHALLENGING A STATE WELFARE
REGULATION THAT "IF THE (FEDERAL DISTRICT) COURT'S CHARACTERIZATION OF
THE (FOURTEENTH AMENDMENT) QUESTION PRESENTED AS INSUBSTANTIAL WAS
BASED ON THE FACE OF THE COMPLAINT, AS IT SEEMS TO HAVE BEEN, IT WAS
ERROR."  ID., AT 671.  THE DISSENT DID NOT QUESTION IN THE MAJORITY'S
JURISDICTIONAL DETERMINATION.  462 F.2D, AT 930-931, 932. 

/7/  APP. 5. 

/8/  THE REGULATION IN QUESTION, 18 NYCRR 352.7(G)(7), HAS A
RATIONAL BASIS.  SINCE THE STATE HAS A LIMITED AMOUNT OF FUNDS
AVAILABLE TO ALLOCATE TO WELFARE RECIPIENTS, THE RECOUPMENT REGULATION
IS REASONABLY DESIGNED TO ENSURE THAT THERE ARE SUFFICIENT FUNDS
AVAILABLE TO ALL RECIPIENTS ON THE LEVEL SET BY THE STATE LEGISLATURE. 
BY RECEIVING THE ADVANCE PAYMENT PLAINTIFFS HAVE GOTTEN MORE THAN THE
NORMAL GRANT.  WITHOUT THE RECOUPMENT REGULATION, THE PLAINTIFFS WOULD
BE IN A PREFERRED POSITION OVER ALL THE OTHER WELFARE RECIPIENTS WHO
HAVE PAID THEIR FULL RENT OUT OF THE NORMAL GRANT.  THE PURPOSES OF
EQUAL PROTECTION ARE SERVED BY TREATING ALL ALIKE WITHOUT GRANTING
SPECIAL FAVOR TO THOSE WHO HAVE MISAPPROPRIATED THEIR RENT ALLOWANCE. 
IF THERE WERE NO RECOUPMENT PROVISION, THERE WOULD BE A DISINCENTIVE
FOR WELFARE RECIPIENTS TO MANAGE THEIR GRANTS SO AS TO HAVE FUNDS
AVAILABLE TO PAY THEIR RENT EACH MONTH.  THE RECOUPMENT PROVISION
ENCOURAGES PROPER MONEY MANAGEMENT, AN ENTIRELY ACCEPTABLE, IF
INCIDENTAL, PURPOSE OF THE WELFARE LEGISLATION. 

"NO DOUBT THERE ARE OTHER WAYS IN WHICH THE STATE COULD ACCOMPLISH
THE ENDS SERVED BY THE USE OF THE RECOUPMENT REGULATION.  HOWEVER IT IS
NOT FOR US TO EVALUATE THE WISDOM OF THE STATE'S CHOICE OF MEANS.  IF
THESE MEANS ARE RATIONALLY RELATED TO A PROPER END, AS THEY ARE IN THIS
CASE, WE HAVE NO POWER TO GO FURTHER."  471 F.2D 347, 349 - 350. 

/9/  HART V. KEITH EXCHANGE, 262 U.S. 271, 274 (1923). 

/10/  ONCE A FEDERAL COURT HAS ASCERTAINED THAT A PLAINTIFF'S
JURISDICTION-CONFERRING CLAIMS ARE NOT "INSUBSTANTIAL ON THEIR FACE,"
ENGINEERS V. CHICAGO, R.I. & P.R. CO., 382 U.S. 423, 428 (1966), "NO
FURTHER CONSIDERATION OF THE MERITS OF THE CLAIMS) IS RELEVANT TO A
DETERMINATION OF THE COURT'S JURISDICTION OF THE SUBJECT MATTER." 
BAKER V. CARR, 369 U.S. 186, 199 (1962). 

/11/  THE COURT ALSO CITED WITH APPROVAL CHIEF JUDGE MAGRUDER'S
CONCURRENCE IN STRACHMAN V. PALMER, 177 F.2D 427, 431 (CA1 1949),
ADVISING THAT "'(FEDERAL COURTS SHOULD NOT BE OVEREAGER TO HOLD ON TO
THE DETERMINATION OF ISSUES THAT MIGHT BE MORE APPROPRIATELY LEFT TO
SETTLEMENT IN STATE COURT LITIGATION.'"  383 U.S., AT 726 N. 15. 

/12/  NUMEROUS DECISIONS OF THIS COURT HAVE STATED THE GENERAL
PROPOSITION ENDORSED IN SILER--, THAT A FEDERAL COURT PROPERLY VESTED
WITH JURISDICTION MAY PASS ON THE STATE OR LOCAL LAW QUESTION WITHOUT
DECIDING THE FEDERAL CONSTITUTIONAL ISSUES--, AND HAVE THEN PROCEEDED
TO DISPOSE OF THE CASE SOLELY ON THE NONFEDERAL GROUND.  SEE, E.G.,
HILLSBOROUGH V. CROMWELL, 326 U.S. 620, 629 - 630 (1946); WAGGONER
ESTATE V. WICHITA COUNTY, 273 U.S. 113, 116 - 119 (1927); CHICAGO
G.W.R.CO. V. KENDALL, 266 U.S. 94 (1924); UNITED GAS CO. V. RAILROAD
COMM'N, 278 U.S. 300, 308 (1929); RISTY V. CHICAGO, R.I. & P.R. CO.,
270 U.S. 378, 387 (1926).  THESE AND OTHER CASES ILLUSTRATE IN PRACTICE
THE WISDOM OF THE FEDERAL POLICY OF AVOIDING CONSTITUTIONAL
ADJUDICATION WHERE NOT ABSOLUTELY ESSENTIAL TO DISPOSITION OF A CASE. 
OTHER DECISIONS HAVE ADDRESSED BOTH THE FEDERAL AND STATE CLAIMS IN A
RANDOM FASHION, SEE, E.G., ATLANTIC COAST LINE CO. V. DAUGHTON, 262
U.S. 413, 421 - 426 (1923); SOUTHERN R. CO. V. WATTS, 260 U.S. 519, 525
- 531 (1923); BUT THEY HAVE GENERALLY DENIED RELIEF ON BOTH THE FEDERAL
AND NONFEDERAL GROUNDS ASSERTED, THE NONFEDERAL CLAIM NOT BEING
DISPOSITIVE.  DAUGHTON AND WATTS WERE BOTH WRITTEN BY MR. JUSTICE
BRANDEIS, WHO IN HIS CELEBRATED CONCURRING OPINION IN ASHWANDER V. TVA,
297 U.S. 288, 347 (1936), RELIED UPON SILER IN SUMMARIZING THE GENERAL
RULE THAT "IF A CASE CAN BE DECIDED ON EITHER OF TWO GROUNDS, ONE
INVOLVING A CONSTITUTIONAL QUESTION, THE OTHER A QUESTION OF STATUTORY
CONSTRUCTION OR GENERAL LAW, THE COURT WILL DECIDE ONLY THE LATTER." 

/13/  THE DISSENT ALSO RELIES UPON HURN V. OURSLER, 289 U.S. 238
(1933), BUT HURN EXPRESSLY TOOK ACCOUNT OF ONE ASPECT OF THE RULE
STATED IN SILER:  ONCE A FEDERAL COURT ACQUIRES JURISDICTION OF A CASE
BY VIRTUE OF THE FEDERAL QUESTIONS INVOLVED, IT MAY OMIT TO DECIDE THE
FEDERAL ISSUES AND DECIDE THE CASE ON LOCAL OR STATE QUESTIONS ALONE. 
WITH UNMISTAKABLE CLARITY, THE COURT REAFFIRMED SILER:  " THE SILER AND
LIKE CASES ANNOUNCE THE RULE BROADLY, WITHOUT QUALIFICATION; AND WE
PERCEIVE NO SUFFICIENT REASON FOR THE EXCEPTION SUGGESTED.  IT IS
STATED IN THESE DECISIONS AS A RULE OF GENERAL APPLICATION, AND WE HOLD
IT TO BE SUCH . . . ."  ID., AT 245.  THE DISSENT PROPERLY NOTES HURN'S
WARNING THAT SILER DOES NOT "PERMIT A FEDERAL COURT TO ASSUME
JURISDICTION OF A SEPARATE AND DISTINCT NON-FEDERAL CAUSE OF ACTION . .
. ."  IBID.  HOWEVER, THE SILER RULE CERTAINLY ALLOWS THE TRIAL COURT
TO ADJUDICATE "A CASE WHERE TWO DISTINCT GROUNDS IN SUPPORT OF A SINGLE
CAUSE OF ACTION ARE ALLEGED, ONLY ONE OF WHICH PRESENTS A FEDERAL
QUESTION . . . ."  ID., AT 246 (EMPHASIS ADDED).  WE CAN THUS SEE THAT
HERE, AS IN HURN, "(THE (COMPLAINT) ALLEGES THE VIOLATION OF A SINGLE
RIGHT (HERE THE RIGHT TO NONDISCRIMINATORY TREATMENT AS TO RECEIPT OF
PUBLIC ASSISTANCE).  AND IT IS THIS VIOLATION WHICH CONSTITUTES THE
CAUSE OF ACTION.  INDEED, THE CLAIMS OF (VIOLATION OF EQUAL PROTECTION
AND THE SOCIAL SECURITY ACT) SO PRECISELY REST UPON IDENTICAL FACTS AS
TO BE LITTLE MORE THAN THE EQUIVALENT OF DIFFERENT EPITHETS TO
CHARACTERIZE THE SAME GROUP OF CIRCUMSTANCES.  THE PRIMARY RELIEF
SOUGHT IS AN INJUNCTION TO PUT AN END TO AN ESSENTIALLY SINGLE WRONG,
HOWEVER DIFFERENTLY CHARACTERIZED, NOT TO ENJOIN DISTINCT WRONGS
CONSTITUTING THE BASIS FOR INDEPENDENT CAUSES OF ACTION."  ID., AT
246.  SEE ALSO ARMSTRONG PAINT & VARNISH WORKS V. NU-ENAMEL CORP., 305
U.S. 315, 324 - 325 (1938). 

/14/  IN A CLOSELY ANALOGOUS CONTEXT, THIS COURT HAS RECOGNIZED THE
SPECIAL CAPABILITY OF FEDERAL COURTS TO ADJUDICATE PENDENT FEDERAL
CLAIMS.  IN ROMERO V. INTERNATIONAL TERMINAL OPERATING CO., 358 U.S.
354 (1959), AN INJURED SPANISH SEAMAN FILED SUIT IN FEDERAL COURT
CLAIMING DAMAGES UNDER THE JONES ACT AND UNDER THE GENERAL MARITIME LAW
OF THE UNITED STATES FOR UNSEAWORTHINESS OF THE SHIP, MAINTENANCE AND
CURE, AND NEGLIGENCE.  JURISDICTION WAS REVOKED UNDER THE JONES ACT (46
U.S.C. 688) AND UNDER GENERAL FEDERAL-QUESTION (28 U.S.C. 1331) AND
DIVERSITY (28 U.S.C. 1332) JURISDICTION.  AFTER EXPRESSING ITS VIEW
THAT PETITIONER ALLEGED A JONES ACT CLAIM SUBSTANTIAL ENOUGH TO CONFER
JURISDICTION UNDER THAT STATUTE, THE COURT HELD THAT HIS GENERAL
MARITIME LAW CLAIMS WERE NOT COGNIZABLE UNDER 28 U.S.C. 1331.  BY NO
MEANS, HOWEVER, WAS THIS THE END OF THE INQUIRY.  "(THE DISTRICT COURT
MAY HAVE JURISIDCTION OF (PETITIONER'S GENERAL MARITIME LAW CLAIMS)
'PENDENT' TO ITS JURISDICTION UNDER THE JONES ACT.  OF COURSE THE
CONSIDERATIONS WHICH CALL FOR THE EXERCISE OF PENDENT JURISDICTION OF A
STATE CLAIM RELATED TO A PENDING FEDERAL CAUSE OF ACTION WITHIN THE
APPROPRIATE SCOPE OF THE DOCTRINE OF HURN V. OURSLER, 289 U.S. 238, ARE
NOT THE SAME WHEN, AS HERE, WHAT IS INVOLVED ARE RELATED CLAIMS BASED
ON THE FEDERAL MARITIME LAW.  WE PERCEIVE NO BARRIER TO THE EXERCISE OF
'PENDENT JURISDICTION' IN THE VERY LIMITED CIRCUMSTANCES BEFORE US." 
358 U.S., AT 380-381. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

I JOIN THE DISSENTING OPINION OF MR. JUSTICE REHNQUIST BECAUSE I
BELIEVE HE EXPRESSES THE CORRECT VIEW OF THE APPROPRIATE RESULT WHEN A
CLAIM OVER WHICH A DISTRICT COURT HAS NO INDEPENDENT JURISDICTION IS
APPENDED TO A CONSTITUTIONAL CLAIM THAT HAS NO HOPE OF SUCCESS ON THE
MERITS.  A WISE EXERCISE OF DISCRETION LIES AT THE HEART OF THE
DOCTRINE OF PENDENT JURISDICTION.  E.G., ROSADO V. WYMAN, 397 U.S. 397,
403 (1970); MINE WORKERS V. GIBBS, 383 U.S. 715, 726 - 727 (1966). 
COMPELLING A DISTRICT COURT TO DECIDE AN ANCILLARY CLAIM WHERE THE
PREMISE FOR ITS JURISDICTION IS A MERITLESS CONSTITUTIONAL CLAIM DOES
NOT IMPRESS ME AS AN EFFICACIOUS PERFORMANCE OF A DISCRETIONARY
RESPONSIBILITY. 

I WRITE BRIEFLY TO EMPHASIZE MY VIEW THAT THE MAJORITY HAS MISREAD
THE IMPORT OF THE GIBBS OPINION, SUPRA, PARTICULARLY IN THE MANNER IN
WHICH IT LINKS GIBBS TO SILER V. LOUISVILLE & NASHVILLE R. CO., 213
U.S. 175 (1909), AND LIKE CASES.  GIBBS INVOLVED A STATE CLAIM THAT
AROSE OUT OF THE SAME TRANSACTION AS THE FEDERAL LAW CLAIM THAT
CONFERRED FEDERAL JURISDICTION.  THE MAJORITY APPARENTLY READS GIBBS
AND SILER TOGETHER AS MANDATING DECISION OF THE STATE LAW CLAIM WITHOUT
REGARD TO THE FRAILTY OF THE FEDERAL CLAIM ON WHICH FEDERAL
JURISDICTION RESTS.  SEE ANTE, AT 547, 549 - 550.  IN OTHER WORDS, THE
MAJORITY OPINION APPEARS TO BE SAYING THAT A FEDERAL CONSTITUTIONAL
CLAIM AS MARGINAL AS THE ONE AT ISSUE HERE IS CAPABLE OF SUPPORTING
PENDENT FEDERAL JURISDICTION OVER A STATE CLAIM AND, INDEED, THAT THE
STATE CLAIM IS TO BE DECIDED TO THE EXCLUSION OF THE FEDERAL ISSUE.  AS
I VIEW IT, THAT IS A PARTICULARLY ERRONEOUS INTERPRETATION OF THE
PENDENT JURISDICTION DOCTRINE.  THAT READING WOULD BROADEN FEDERAL
QUESTION JURISDICTION TO ENCOMPASS MATTERS OF STATE LAW WHENEVER AN
IMAGINATIVE LITIGANT CAN THINK UP A FEDERAL CLAIM, NO MATTER HOW
INSUBSTANTIAL, THAT IS RELATED TO THE TRANSACTION GIVING RISE TO THE
STATE CLAIM. 

THIS EXTENSION OF GIBBS IS QUITE UNNECESSARY, SINCE WE ARE NOT
CONFRONTED WITH A CASE WHERE THE PENDENT CLAIM IS A MATTER OF STATE
LAW.  THE COURT'S DICTUM COULD NEVERTHELESS PROMPT OTHER COURTS TO
FOLLOW IT.  IN VIEW OF THIS POTENTIAL MISCHIEF, I REPEAT A QUOTATION
FROM GIBBS RELIED ON BY MY BROTHER REHNQUIST WHICH INDICATES HOW FAR
THE COURT HAS DEPARTED FROM THE RATIONALE OF THAT 1966 PRECEDENT: 

"  RECOGNITION OF A FEDERAL COURT'S WIDE LATITUDE TO DECIDE
ANCILLARY QUESTIONS OF STATE LAW DOES NOT IMPLY THAT IT MUST TOLERATE A
LITIGANT'S EFFORT TO IMPOSE UPON IT WHAT IS IN EFFECT ONLY A STATE LAW
CASE.  ONCE IT APPEARS THAT A STATE CLAIM CONSTITUTES THE REAL BODY OF
A CASE, TO WHICH THE FEDERAL CLAIM IS ONLY AN APPENDAGE, THE STATE
CLAIM MAY FAIRLY BE DISMISSED."  383 U.S., AT 727.  THE CORRECT READING
OF GIBBS, AS A MATTER OF COMMON SENSE AND IN LIGHT OF DEEPLY ROOTED
NOTIONS OF FEDERALISM, IS THAT THE FEDERAL CLAIM MUST HAVE MORE THAN A
GLIMMER OF MERIT AND MUST CONTINUE TO DO SO AT LEAST UNTIL SUBSTANTIAL
JUDICIAL RESOURCES HAVE BEEN COMMITTED TO THE LAWSUIT.  IF EITHER OF
THOSE CONDITIONS IS NOT MET, A DISTRICT COURT HAS NO BUSINESS DECIDING
ISSUES OF STATE LAW.  DISTRICT COURTS ARE NOT EXPOSITORS OF STATE LAW
WHEN JURISDICTION IS NOT BASED ON DIVERSITY OF CITIZENSHIP. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
POWELL JOIN, DISSENTING. 

THE COURT'S DECISION IN THIS CASE RESOLVES A LEGAL QUESTION AND IS
NECESSARILY AND PROPERLY CAST IN LEGAL TERMS.  ACCORDING TO THE COURT,
A FEDERAL DISTRICT COURT, HAVING ACQUIRED JURISDICTION OVER A "NOT
WHOLLY INSUBSTANTIAL"  FEDERAL CLAIM, HAS POWER TO DECIDE OTHER RELATED
CLAIMS WHICH LACK AN INDEPENDENT JURISDICTIONAL BASIS.  APPLYING THIS
ANALYSIS TO THE PRESENT CASE, THE COURT FINDS THE EQUAL PROTECTION
CLAIM PLEADED BY PETITIONERS SUFFICIENT TO SATISFY THIS SOMEWHAT HAZY
DEFINITION OF "SUBSTANTIALITY"  AND APPEARS TO APPROVE THE DISTRICT
COURT'S EXERCISE OF PENDENT JURISDICTION OVER A CLAIM ALLEGING CONFLICT
BETWEEN STATE AND FEDERAL WELFARE REGULATIONS.  BUT SINCE WE HAVE BEEN
ADMONISHED THAT WE MAY NOT SHUT OUR EYES AS JUDGES TO WHAT WE KNOW AS
MEN, THE PRACTICAL AS WELL AS THE LEGAL CONSEQUENCES OF THIS DECISION
SHOULD BE SQUARELY FACED. 

IN THE WAKE OF KING V. SMITH, 392 U.S. 309 (1968), AND ROSADO V.
WYMAN, 397 U.S. 397 (1970), THE LOWER FEDERAL COURTS HAVE BEEN
CONFRONTED BY A MASSIVE INFLUX OF CASES CHALLENGING STATE WELFARE
REGULATIONS.  THE PRINCIPAL CLAIM OF PLAINTIFFS IN THE TYPICAL CASE IS
THAT THE STATE REGULATION CONFLICTS WITH GOVERNING FEDERAL REGULATIONS
AND IS INVALID UNDER THE SUPREMACY CLAUSE OF THE UNITED STATES
CONSTITUTION.  THIS ALLEGATION PRESENTS A FEDERAL CLAIM SUFFICIENT TO
SATISFY THE FIRST JURISDICTIONAL REQUIREMENT OF 28 U.S.C. 1331, /1/
THE SO-CALLED "FEDERAL QUESTION"  JURISDICTIONAL STATUTE, BUT MANY
PLAINTIFFS FIND THE STATUTE'S SECOND REQUIREMENT, THAT THE MATTER IN
CONTROVERSY EXCEED THE SUM OF $10,000, IMPOSSIBLE TO MEET.  NORMALLY,
THEREFORE, THESE CASES WOULD BE LEFT, AS CONGRESS SURELY UNDERSTOOD
WHEN IT IMPOSED THIS JURISDICTIONAL LIMITATION, TO STATE COURTS
LIKEWISE CHARGED WITH ENFORCING THE UNITED STATES CONSTITUTION. 

TO AVOID THIS NATURAL DISPOSITION, HOWEVER, PLAINTIFFS IN THESE
CASES HAVE TURNED TO 28 U.S.C. 1343, A MORE NARROWLY DRAWN FEDERAL
JURISDICTIONAL STATUTE REQUIRING NO MINIMUM JURISDICTIONAL AMOUNT.  THE
PROVISION OF 28 U.S.C. 1343 RELEVANT TO THIS CASE READS: 

     " THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY

  CIVIL ACTION AUTHORIZED BY LAW TO BE COMMENCED BY ANY PERSON:

        . .         .         .         . 

     "(3) TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,

  STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT,

  PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED

STATES OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF

  CITIZENS OR OF ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED

  STATES . . . ." 

THIS COURT, HOWEVER, HAS NEVER HELD, AND DOES NOT HOLD NOW, THAT THE
SUPREMECY CLAUSE OF THE CONSTITUTION ITSELF PROVIDES A BASIS FOR
JURISDICTION UNDER THIS SECTION.  THE COURT ESCAPES THE NEED FOR SUCH A
DECISION BY GRANTING THE FEDERAL COURTS POWER TO HEAR THE SUPREMACY
CLAUSE CLAIM UNDER A THEORY OF PENDENT JURISDICTION.  FINDING THAT
PLAINTIFFS HERE HAVE PLEADED AN EQUAL PROTECTION CLAIM SUFFICIENTLY
SUBSTANTIAL TO SATISFY THE REQUIREMENTS OF 28 U.S.C. 1343, THE COURT
SEEMS TO SUGGEST THAT CONSIDERATION OF THE SUPREMACY CLAUSE CLAIM MAY
FOLLOW AS A MATTER OF COURSE.  SINCE I DO NOT BELIEVE THAT THE EQUAL
PROTECTION CLAIM WAS SUFFICIENT TO ESTABLISH JURISDICTION UNDER 1343,
OR THAT THE DOCTRINE OF PENDENT JURISDICTION WAS APPROPRIATELY INVOKED
IN THIS CASE, I DISSENT. 

        I 

THE HISTORY OF PENDENT JURISDICTION IN THIS COURT IS LONG AND
COMPLEX.  ITS ROOTS GO BACK TO OSBORN V. BANK OF THE UNITED STATES, 9
WHEAT.  738 (1824), WHERE THE COURT SAID THAT THE JURISDICTION OF THE
FEDERAL COURTS EXTENDED NOT ONLY TO FEDERAL ISSUES THEMSELVES BUT ALSO
TO NONFEDERAL ISSUES ESSENTIAL TO THE SETTLEMENT OF THE FEDERAL CLAIM. 
NO SUBSEQUENT DECISION HAS CAST ANY DOUBT UPON THE WISDOM OF MR. CHIEF
JUSTICE MARSHALL'S EXPOSITION IN THAT CASE, SINCE A DIFFERENT RESULT
WOULD HAVE FORCED SUBSTANTIAL FEDERAL CASES INTO STATE COURTS FOR
ADJUDICATION SIMPLY BECAUSE THEY INVOLVED NONFEDERAL ISSUES AS WELL AS
FEDERAL ONES.  /2/  THE DOCTRINE WAS EXPANDED IN SILER V. LOUISVILLE &
NASHVILLE R. CO., 213 U.S. 175 (1909), WHERE THE COURT UPHELD THE POWER
OF A DISTRICT COURT, HAVING FOUNDED ITS JURISDICTION UPON FEDERAL
CONSTITUTIONAL CLAIMS, TO BYPASS THE CONSTITUTIONAL QUESTIONS AND TO
DECIDE AN ISSUE OF LOCAL LAW.  THE COURT SAID THAT THE LOWER COURT "HAD
THE RIGHT TO DECIDE ALL THE QUESTIONS IN THE CASE, EVEN THOUGH IT
DECIDED THE FEDERAL QUESTIONS ADVERSELY TO THE PARTY RAISING THEM, OR
EVEN IF IT OMITTED TO DECIDE THEM AT ALL, BUT DECIDED THE CASE ON LOCAL
OR STATE QUESTIONS ONLY."  /3/  BUT THE COURT AT THE SAME TIME
CAUTIONED:  "OF COURSE, THE FEDERAL QUESTION MUST NOT BE MERELY
COLORABLE OR FRAUDULENTLY SET UP FOR THE MERE PURPOSE OF ENDEAVORING TO
GIVE THE COURT JURISDICTION.  /4/ 

THE COURT RETURNED TO THE QUESTION OF PENDENT JURISDICTION IN HURN
V. OURSLER, 289 U.S. 238 (1933), AND LEVERING & GARRIGUES CO. V.
MORRIN, 289 U.S. 103 (1933).  THE COURT IN BOTH CASES AGREED THAT A
SUBSTANTIAL FEDERAL QUESTION WAS NECESSARY TO CONFER INITIAL
JURISDICTION ON THE DISTRICT COURT, /5/  A TEST THAT MUST BE MET
WHETHER OR NOT PENDENT JURISDICTION IS INVOLVED, AND THEN IN HURN
FURTHER ATTEMPTED TO DEFINE THE NECESSARY RELATIONSHIP BETWEEN THE
PENDENT CLAIM AND THE CLAIM CONFERRING JURISDICTION.  ACCORDING TO THE
COURT, A LOWER FEDERAL COURT COULD EXERCISE PENDENT JURISDICTION OVER A
SEPARATE GROUND ALLEGED IN SUPPORT OF A SINGLE CAUSE OF ACTION, BUT NOT
OVER A SEPARATE CAUSE OF ACTION ITSELF.  /6/ 

THE COURT'S MOST RECENT EXTENSIVE TREATMENT OF THE SUBJECT OCCURRED
IN MINE WORKERS V. GIBBS, 383 U.S. 715 (1966).  BECAUSE HURN HAD SPOKEN
IN TERMS OF "CAUSES OF ACTION," A TERM WHICH WAS SUPERSEDED BY THE
ADOPTION OF THE FEDERAL RULES OF CIVIL PROCEDURE, GIBBS REDEFINED THE
NECESSARY RELATION OF THE FEDERAL AND NONFEDERAL CLAIMS IN MORE
UNDERSTANDABLE TERMS.  RESTATING THE SUBSTANTIALITY TEST IN PRETTY MUCH
THE LANGUAGE OF THE EARLIER CASES, THE COURT THEN CONTINUED: 

" THE STATE AND FEDERAL CLAIMS MUST DERIVE FROM A COMMON NUCLEUS OF
OPERATIVE FACT.  BUT IF, CONSIDERED WITHOUT REGARD TO THEIR FEDERAL OR
STATE CHARACTER, A PLAINTIFF'S CLAIMS ARE SUCH THAT HE WOULD ORDINARILY
BE EXPECTED TO TRY THEM ALL IN ONE JUDICIAL PROCEEDING, THEN, ASSUMING
SUBSTATNTIALITY OF THE FEDERAL IISUES, THERE IS POWER IN FEDERAL COURTS
TO HEAR THE WHOLE."  ID., AT 725 (EMPHASIS IN ORIGINAL). 

THIS LANGUAGE SERVED TO CLARIGY JURISDICTIONAL QUESTIONS WHICH HAD
PROVED TROUBLESOME AFTER HURN V. OURSLER.  BUT, IMPORTANTLY, THE
DECISION THEN WENT ON TO EMPHASIZE THAT POWER TO HEAR CLAIMS LACKING AN
INDEPENDENT JURISDICTIONAL BASIS SHOULD NOT BE EXERCISED
INDISCRIMINATELY.  THE COURT REITERATED "THAT PENDENT JURISDICTION IS A
DOCTRINE OF DISCRETION, NOT OF PLAINTIFF'S RIGHT," ID., AT 726, AND
URGED THAT THE DISTRICT COURTS EXERCISE CAUTION NOT TO ABUSE THAT
DISCRETION.  FOR EXAMPLE, THE COURT SUGGESTED THAT 

"IF THE FEDERAL CLAIMS ARE DISMISSED BEFORE TRIAL, EVEN THOUGH NOT
INSUBSTANTIAL IN A JURISDICTIONAL SENSE, THE STATE CLAIMS SHOULD BE
DISMISSED AS WELL."  IBID. FURTHERMORE, THE COURT STRESSED THAT THE
RELATIVE IMPORTANCE OF THE CLAIMS SHOULD BE CONSIDERED: 

" SIMILARLY, IF IT APPEARS THAT THE STATE ISSUES SUBSTANTIALLY
PREDOMINATE, WHETHER IN TERMS OF PROOF, OF THE SCOPE OF THE ISSUES
RAISED, OR OF THE COMPREHENSIVENESS OF THE REMEDY SOUGHT, THE STATE
CLAIMS MAY BE DISMISSED WITHOUT PREJUDICE AND LEFT FOR RESOLUTION TO
STATE TRIBUNALS."  ID., AT 726 - 727. 

ALTHOUGH THE COURT'S LANGUAGE IN GIBBS NECESSARILY DISCUSSED THE
RELATIONSHIP BETWEEN FEDERAL AND STATE CLAIMS, MUCH OF THE OPINION'S
RATIONALE IS APPLICABLE WHEN PENDENT JURISDICTION IS SOUGHT OVER
FEDERAL CLAIMS LACKING AN INDEPENDENT JURISDICTIONAL BASIS.  /7/  OF
COURSE, A DECISION TO DENY PENDENT JURISDICTION ON THE GROUND THAT
STATE COURTS SHOULD CONSIDER QUESTIONS OF STATE LAW NATURALLY INVOLVES
ISSUES RELEVANT TO THE QUESTION OF ABSTENTION, A CONSIDERATION NOT
ESPECIALLY APPLICABLE WHEN THE PENDENT CLAIM PRIMARILY INVOLVES
QUESTIONS OF FEDERAL LAW.  BUT THE PRESENCE OF FEDERAL QUESTIONS SHOULD
NOT INDUCE FEDERAL COURTS TO EXPAND THEIR PROPER JURISDICTION.  AS
PREVIOUSLY NOTED, CONGRESS, BY REQUIRING A MINIMUM DOLLAR AMOUNT FOR
FEDERAL QUESTION JURISDICTION, MADE A LEGISLATIVE DECISION TO LEAVE
CERTAIN CLAIMS TO STATE COURTS.  CONSIDERATIONS OF CONVENIENCE AND
JUDICIAL ECONOMY MAY JUSTIFY HEARING THOSE CLAIMS WHEN GENUINE FEDERAL
BUSINESS, AS CONTRASTED TO WEAK CLAIMS INTENDED MERELY TO SECURE
JURISDICTION, IS BEFORE THE FEDERAL COURT, BUT THESE CONSIDERATIONS
SHOULD BE SUBORDINATED TO CONSIDERATIONS OF FEDERALISM WHEN THE CLAIMS
WITHOUT INDEPENDENT JURISDICTION CONSTITUTE "THE REAL BODY" OF THE
CASE.  IN THIS SITUATION THE LOWER COURTS SHOULD REMEMBER THAT
FEDERALISM EMBODIES 

"A SYSTEM IN WHICH THERE IS SENSITIVITY TO THE LEGITIMATE INTERESTS
OF BOTH STATE AND NATIONAL GOVERNMENTS, AND IN WHICH THE NATIONAL
GOVERNMENT, ANXIOUS THOUGH IT MAY BE TO VINDICATE AND PROTECT FEDERAL
RIGHTS AND FEDERAL INTERESTS, ALWAYS ENDEAVORS TO DO SO IN WAYS THAT
WILL NOT UNDULY INTERFERE WITH THE LEGITIMATE ACTIVITIES OF THE
STATES."  YOUNGER V. HARRIS, 401 U.S. 37, 44 (1971). 

THE MAJORITY REJECTS THIS ANALYSIS, SEEMINGLY FINDING THAT STATE
COURTS' GREATER FAMILIARITY WITH STATE LAW IS THE ONLY REASON FOR
DECLINING PENDENT JURISDICTION UNDER GIBBS.  BUT CONGRESS LEFT TO STATE
COURTS NOT ONLY THOSE CLAIMS INVOLVING STATE LAW BUT ALSO THOSE CLAIMS
INVOLVING FEDERAL LAW WHICH IT FELT DID NOT MERIT THE TIME OF FEDERAL
COURTS.  THIS COURT NOW SAYS THAT FEDERAL COURTS SHOULD HEAR THOSE
CASES ANYWAY SINCE THEY CAN RENDER "AT LEAST AS SURE-FOOTED" AN
INTERPRETATION OF FEDERAL LAW AND ARE "'PARTICULARLY APPROPRIATE
BODIES'"  TO DO SO.  THIS OPINION, WHILE IT UNDOUBTEDLY REFLECTS THE
VIEW OF THIS COURT, DOES NOT REFLECT WITH EQUAL ACCURACY THE PURPOSE OF
CONGRESS. 

IN ROSADO V. WYMAN, 387 U.S. 397 (1970), HEAVILY RELIED UPON BY THE
COURT TO SUPPORT ITS POSITION, THERE WAS NO INTIMATION THAT THE
CONSTITUTIONAL CLAIM WAS A WEAK ONE PLEADED FOR THE PURPOSE OF SECURING
FEDERAL JURISDICTION OVER A STRONGER CLAIM.  RATHER THE CONSTITUTIONAL
CLAIM PROVED MOOT.  THIS COURT PLAINLY STATED: 

" UNLIKE INSUBSTANTIALITY, WHICH IS APPARENT AT THE OUTSET,
MOOTNESS, FREQUENTLY A MATTER BEYOND THE CONTROL OF THE PARTIES, MAY
NOT OCCUR UNTIL AFTER SUBSTANTIAL TIME AND ENERGY HAVE BEEN EXPENDED
LOOKING TOWARD THE RESOLUTION OF A DISPUTE THAT PLAINTIFFS WERE
ENTITLED TO BRING IN A FEDERAL COURT."  ID., AT 404.  THUS ROSADO DOES
NOT IN ANY WAY SETTLE THE ISSUE BEFORE THE COURT TODAY.  ITS HOLDING
OFFERS NO AID IN RESOLVING THE REAL AND PRACTICAL ISSUES THAT THE COURT
CONFRONTS IN THIS CASE. 

THE GIBBS DECISION MUST BE UNDERSTOOD IN ITS SEPARATE PARTS.  FIRST,
THE COURT HELD THAT JURISDICTION COULD NOT ATTACH UNLESS THE CLAIM FOR
WHICH JURISDICTION WAS ASSERTED MET THE REQUIREMENT OF SUBSTANTIALITY
AND UNLESS THE PENDENT CLAIM WAS SUFFICIENTLY RELATED TO THE
JURISDICTIONAL CLAIM TO CONSTITUTE A SINGLE CASE UNDER THE
CONSTITUTION.  SECOND, THE COURT ADMONISHED THAT THIS JURISDICTION,
EVEN IF FOUND TO EXIST, SHOULD BE EXERCISED JUDICIOUSLY.  THE
RELATIVELY PERMISSIVE STANDARDS APPLIED TO THE ISSUE OF WHETHER THE
COURT COULD CONSIDER A PENDENT CLAIM WERE NOT TO GUIDE THE ULTIMATE
DECISION OF WHETHER THE COURT SHOULD CONSIDER THE PENDENT CLAIM.  ONLY
WHERE "CONSIDERATIONS OF JUDICIAL ECONOMY, CONVENIENCE AND FAIRNESS TO
LITIGANTS" WERE SERVED AND WHERE THE PENDENT CLAIM DID NOT PREDOMINATE
IN SCOPE OR WORTH OVER THE JUDICIAL CLAIM, WAS THE DOCTRINE OF PENDENT
JURISDICTION TO BE APPLIED.  383 U.S., AT 726.  WHILE I AM CONVINCED
THAT THE DISTRICT COURT LACKED JURISDICTION OVER AN EQUAL PROTECTION
CLAIM AS THIN AS THIS ONE, EVEN IF I AM WRONG ON THAT POINT IT SEEMS
CLEAR TO ME THAT ITS DECISION TO EXERCISE PENDENT JURISDICTION OVER THE
SUPREMACY CLAUSE CLAIM WAS NOT BASED ON THE DISCRETIONARY
CONSIDERATIONS OUTLINED IN GIBBS, SUPRA.

        II 

THE DISTRICT COURT SIMPLY FOUND THE EQUAL PROTECTION CLAIM IN THIS
CASE TO BE "SUBSTANTIAL" AND PROCEEDED WITHOUT FURTHER DISCUSSION TO
THE STATUTORY CLAIM.  THE COURT OF APPEALS, REVERSING THE DETERMINATION
OF THE DISTRICT COURT, FOUND THE CLAIM TO BE INSUBSTANTIAL AND
THEREFORE HAD NO NEED TO GO FURTHER.  THIS COURT MERELY DISAGREES ON
THE QUESTION OF SUBSTANTIALITY, REINSTATING THE DISTRICT COURT'S
JURISDICTION.  UNFORTUNATELY, THIS PROCESS OF ANALYSIS SEEMS TO ME TO
BE WRONG BOTH IN ITS TREATMENT OF THE JURISDICTIONAL QUESTION AND IN
ITS FAILURE TO TREAT THE DISCRETIONARY ASPECTS OF PENDENT
JURISDICTION. 

WHATEVER LEGAL TERMINOLOGY IS APPLIED TO THE EQUAL PROTECTION CLAIM
OF THE PLAINTIFFS IN THIS CASE, THE ONE CLEAR FACT IS THAT THE CLAIM IS
NOT VERY GOOD.  IN BRIEF, PETITIONERS, WHO ARE RECIPIENTS OF PUBLIC
ASSISTANCE UNDER THE AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM,
ALL RECEIVED FUNDS FROM NEW YORK, OVER AND ABOVE THEIR USUAL MONTHLY
GRANTS, TO PREVENT EVICTION FROM THEIR PLACES OF LODGING FOR NONPAYMENT
OF RENT.  THE STATE, PURSUANT TO A PROVISION OF THE NEW YORK CODE OF
RULES AND REGULATIONS CHALLENGED IN THE DISTRICT COURT, SOUGHT TO
RECOVER THESE UNUSUAL EXPENDITURES BY MAKING DEDUCTIONS OVER THE NEXT
SUCCEEDING MONTHS FROM PETITIONERS'  NORMAL MONTHLY GRANTS.  IN THEIR
COMPLAINT PETITIONERS CONTENDED THAT THE NEW YORK RECOUPMENT PROCEDURE
DEPRIVED THEM OF EQUAL PROTECTION OF THE LAWS.  /8/ 

ONE SEARCHES IN VAIN, EITHER IN PETITIONERS' BRIEF OR IN THE
OPINIONS OF THE DISTRICT COURT OR THIS COURT, FOR ANY REASON WHY THIS
CLAIM MEETS EVEN A MINIMAL TEST OF SUBSTANTIALITY.  IT WOULD SEEM
EXTRAORDINARY IF, HAVING PAID PETITIONERS MORE THAN THEIR NORMAL
MONTHLY ENTITLEMENT IN ORDER TO MEET AN EMERGENCY SITUATION, THE STATE
HAD NOT SOUGHT TO RECOUP THE PAYMENTS OVER A PERIOD OF TIME.  THE
DISTRICT COURT, FINDING THE CLAIM SUBSTANTIAL, CITED BRADFORD V. JURAS,
331 F. SUPP. 167 ORE.  1971), A DECISION BY A THREE-JUDGE DISTRICT
COURT WHICH FOUND JURISDICTION ON A SIMILAR CONSTITUTIONAL CLAIM AND
THEN DECIDED THE CASE ON STATUTORY GROUNDS.  IN BRADFORD, HOWEVER, THE
COURT SIMPLY STATED THAT IT HAD JURISDICTION UNDER 28 U.S.C. 1343(3)
WITHOUT FURTHER DISCUSSION.  /9/ 

THE OPINION OF THIS COURT SHEDS NO MORE LIGHT THAN DID THE OPINION
OF THE DISTRICT COURT.  THE COURT SIMPLY STATES: 

     " THIS REASONING WITH RESPECT TO THE RATIONALITY OF THE

  REGULATION AND ITS PROPRIETY UNDER THE EQUAL PROTECTION CLAUSE

  MAY ULTIMATELY PROVE CORRECT, BUT IT IS NOT IMMEDIATELY OBVIOUS

  FROM THE DECIDED CASES OR, SO 'VERY PLAIN' UNDER THE EQUAL

  PROTECTION CLAUSE."  ANTE, AT 542. 

BUT CASES SUCH AS DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), HAVE
LARGELY DISCREDITED ATTACKS ON LEGISLATIVE DECISIONS ABOUT THE
APPORTIONMENT OF LIMITED STATE WELFARE FUNDS.  AT LEAST WHERE THE COURT
HAS NOT FOUND A PENALTY BASED ON RACE OR CONSIDERATIONS SUCH AS
INTERSTATE TRAVEL, THE LEGISLATIVE JUDGMENT IS UPHELD WHENEVER A
"CONCEIVABLE RATIONAL BASIS" EXISTS.  ALTHOUGH DANDRIDGE DID NOT
"SUSPEND THE OPERATION OF THE EQUAL PROTECTION CLAUSE" IN THIS AREA IT
ASSUREDLY MAKES THIS PARTICULAR CLAIM A MARGINAL ONE.  /10/ 

I THEREFORE CANNOT AGREE THAT THE EQUAL PROTECTION CLAIM PLEADED
HERE WAS SUFFICIENT TO CONFER JURISDICTION ON THE DISTRICT COURT.  EVEN
ASSUMING THAT THE LOWER COURT MAY REFER ONLY TO THE PLEADINGS IN MAKING
ITS DETERMINATION ON THE QUESTION OF JURISDICTION, THE ANALYSIS NEED
NOT BE MADE, AS THE MAJORITY SEEMS TO IMPLY, IN A LEGAL VACUUM.  TO SAY
THAT PREVIOUS DECISIONS HAVE NOT FORECLOSED A QUESTION UNLESS A PRIOR
CASE "SPECIFICALLY DEALS)" WITH THE SAME REGULATION NEGLECTS THE SECOND
BRANCH OF THE TEST ENUNCIATED IN LEVERING & GARRIGUES CO. V. MORRIN,
289 U.S. 103 (1933), AND REPEATED IN LATER CASES, THAT A CLAIM IS
INSUBSTANTIAL BECAUSE "OBVIOUSLY WITHOUT MERIT."  ID., AT 105.  UNDER
TODAY'S RATIONALE IT APPEARS SUFFICIENT FOR JURISDICTION THAT A
PLAINTIFF IS ABLE TO PLEAD HIS CLAIM WITH A STRAIGHT FACE.  BUT A
DISTRICT COURT SHOULD BE ABLE TO DISMISS FOR WANT OF JURISDICTION ANY
CLAIM THAT PLAINLY CARRIES NO HOPE OF SUCCESS ON THE MERITS.  THIS LACK
OF PROMISE IN TURN COULD BE EVIDENT FROM RECENT DECISIONS OF THIS COURT
REJECTING CLAIMS WITH A SIMILAR THESIS OR LAYING DOWN RULES WHICH WOULD
CLEARLY REQUIRE DISMISSAL ON THE MERITS. 

ASSUMING, HOWEVER, THAT THE DISTRICT COURT HERE DID HAVE
JURISDICTION, IT SEEMS CLEAR TO ME THAT UNDER GIBBS THE EQUAL
PROTECTION CLAIM SHOULD NOT SUPPORT THE SUPREMACY CLAUSE CLAIM ALSO
ASSERTED BY PETITIONERS.  THE TEST FOR EXERCISING DISCRETION MUST BE A
PRACTICAL ONE, INVOLVING THE TYPE OF JUDGMENTS THAT A REASONABLE
LAWYER, EVALUATING THE RESPECTIVE STRENGTHS AND WEAKNESSES OF HIS CASE,
MIGHT UNDERTAKE.  IN THIS CASE IT IS HIGHLY IMPROBABLE THAT A LAWYER
FAMILIAR WITH THIS COURT'S CASES WOULD PLACE MUCH FAITH IN THE SUCCESS
OF HIS EQUAL PROTECTION CLAIM.  IN FACT, EXAMINATION OF THE COMPLAINT
ITSELF SHOWS THAT SUBSTANTIALLY MORE ATTENTION WAS PAID TO THE
SUPREMACY CLAUSE CLAIM THAN TO THE CLAIMS UNDER THE FOURTEENTH
AMENDMENT.  AT THE VERY LEAST, THE DISTRICT COURT, BEFORE IT CHOSE TO
EXERCISE PENDENT JURISDICTION, SHOULD HAVE MADE AN IDENTIFIABLE
DETERMINATION THAT THE EQUAL PROTECTION CLAUSE WAS NOT SIMPLY ASSERTED
FOR THE PURPOSE OF GIVING THE COURT JURISDICTION OVER THE HEART OF THE
PLAINTIFFS' CASE.  TO MY MIND THIS SEEMS TO BE A CLASSIC CASE OF THE
STATUTORY TAIL WAGGING THE CONSTITUTIONAL DOG. 

        III 

THUS, EVEN IF THE COURT OF APPEALS MAY HAVE ERRONEOUSLY RESOLVED THE
QUESTION OF JURISDICTION, THE RESULT IT REACHED WAS CORRECT IN TERMS OF
THE WISE EXERCISE OF JURISDICTION.  WHETHER THE EQUAL PROTECTION CLAIM
PLEADED IN THIS CASE MEETS THE THRESHOLD OF SUBSTANTIALITY FOR
JURISDICTION IN THE FEDERAL COURTS, THE CLAIM SURELY SHOULD NOT
CONVINCE A DISTRICT COURT THAT ITS MAIN PURPOSE WAS ANYTHING OTHER THAN
TO SECURE JURISDICTION FOR THE MORE PROMISING SUPREMACY CLAUSE
PRESENTED WITH THIS SITUATION, THE DISTRICT COURT SHOULD HAVE DECLINED
TO EXERCISE PENDENT JURISDICTION OVER THE SUPREMACY CLAUSE CLAIM AND
REFFERRED THE EQUAL PROTECTION CLAIM TO A THREE-JUDGE COURT.  /11/
SINCE ITS FAILURE TO DO SO SEEMS TO ME AN ABUSE OF DISCRETION UNDER
GIBBS, I DISSENT. 

/1/  THE RELEVANT PROVISION OF 28 U.S.C. 1331 READS AS FOLLOWS: 

"(A) THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL
CIVIL ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR
VALUE OF $10,000, EXCLUSIVE OF INTEREST AND COSTS, AND ARISES UNDER THE
CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES."  THE
JURISDICTIONAL AMOUNT WAS RAISED FROM $3,000 TO $10,000 IN 1958. 

/2/  " UNDER THIS CONSTRUCTION, THE JUDICIAL POWER OF THE UNION
EXTENDS EFFECTIVELY AND BENEFICIALLY TO THAT MOST IMPORTANT CLASS OF
CASES, WHICH DEPEND ON THE CHARACTER OF THE CAUSE.  ON THE OPPOSITE
CONSTRUCTION, THE JUDICIAL POWER NEVER CAN BE EXTENDED TO A WHOLE CASE,
AS EXPRESSED BY THE CONSTITUTION, BUT TO THOSE PARTS OF CASES ONLY
WHICH PRESENT THE PARTICULAR QUESTION INVOLVING THE CONSTRUCTION OF THE
CONSTITUTION OR THE LAW.  WE SAY IT NEVER CAN BE EXTENDED TO THE WHOLE
CASE, BECAUSE, IF THE CIRCUMSTANCE THAT OTHER POINTS ARE INVOLVED IN
IT, SHALL DISABLE CONGRESS FROM AUTHORIZING THE COURTS OF THE UNION TO
TAKE JURISDICTION OF THE ORIGINAL CAUSE, IT EQUALLY DISABLES CONGRESS
FROM AUTHORIZING THOSE COURTS TO TAKE JURISDICTION OF THE WHOLE CAUSE,
ON AN APPEAL, AND THUS WILL BE RESTRICTED TO A SINGLE QUESTION IN THAT
CAUSE; AND WORDS OBVIOUSLY INTENDED TO SECURE TO THOSE WHO CLAIM RIGHTS
UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES, A TRIAL
IN THE FEDERAL COURTS, WILL BE RESTRICTED TO THE INSECURE REMEDY OF AN
APPEAL UPON AN INSULATED POINT, AFTER IT HAS RECEIVED THAT SHAPE WHICH
MAY BE GIVEN TO IT BY ANOTHER TRIBUNAL, INTO WHICH HE IS FORCED AGAINST
HIS WILL."  OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738, 822 -
823 (1824). 

/3/  213 U.S., AT 191. 

/4/  ID., AT 191 - 192.  IN SILER THE COURT SPECIFICALLY NOTED THAT
THE CONSTITUTIONAL CLAIM WAS NOT FRAUDULENTLY PLEADED TO CONFER
JURISDICTION OVER THE PENDENT CLAIM. 

THE COURT TODAY, BY ITS HEAVY EMPHASIS ON DECIDING STATE ISSUES IN
PREFERENCE TO CONSTITUTIONAL ONES, ANTE, AT 546 - 547, SEEMS TO IMPLY
THAT THIS DOCTRINE SHOULD BE CONTROLLING EVEN WHEN A CONSTITUTIONAL
CLAIM IS PLEADED "FOR THE MERE PURPOSE OF ENDEAVORING TO GIVE THE COURT
JURISDICTION."  I CANNOT AGREE.  THE NUMEROUS CASES CITED IN THE
COURT'S OPINION STAND FOR THE LONG-RECOGNIZED AND SENSIBLE POLICY THAT
CASES SHOULD BE DECIDED ON NONCONSTITUTIONAL GROUNDS WHERE POSSIBLE;
BUT THEY DO NOT STAND FOR THE PROPOSITION THAT CLAIMS WHICH WOULD BE
OTHERWISE DISMISSED UNDER THE PRINCIPLES DISCUSSED IN MINE WORKERS V.
GIBBS, 383 U.S. 715 (1966), SHOULD BE HEARD SIMPLY TO AVOID THE
CONSTITUTIONAL CLAIM WHICH CONFERRED JURISDICTION IN THE FIRST PLACE. 
SEE N. 11, INFRA.  IN SUCH CASES THE COMPETING AND EQUALLY IMPORTANT
POLICY OF SAFEGUARDING THE LIMITED JURISDICTION OF THE FEDERAL COURTS
IS ENTITLED TO MORE WEIGHT THAN THE COURT APPEARS TO GIVE IT. 

/5/  THE COURT IN LEVERING, SUPRA, STATED: 

" WHETHER AN OBJECTION THAT A BILL OR A COMPLAINT FAILS TO STATE A
CASE UNDER A FEDERAL STATUTE RAISES A QUESTION OF JURISDICTION OR OF
MERITS IS TO BE DETERMINED BY THE APPLICATION OF A WELL SETTLED RULE. 
IF THE BILL OR THE COMPLAINT SETS FORTH A SUBSTANTIAL CLAIM, A CASE IS
PRESENTED WITHIN THE FEDERAL JURISDICTION, HOWEVER THE COURT, UPON
CONSIDERATION, MAY DECIDE AS TO THE LEGAL SUFFICIENCY OF THE FACTS
ALLEGED TO SUPPORT THE CLAIM.  BUT JURISDICTION, AS DISTINGUISHED FROM
MERITS, IS WANTING WHERE THE CLAIM SET FORTH IN THE PLEADING IS PLAINLY
UNSUBSTANTIAL.  THE CASES HAVE STATED THE RULE IN A VARIETY OF WAYS,
BUT ALL TO THAT EFFECT.  . . . AND THE FEDERAL QUESTION AVERRED MAY BE
PLAINLY UNSUBSTANTIAL EITHER BECAUSE OBVIOUSLY WITHOUT MERIT, OR
'BECAUSE ITS UNSOUNDNESS SO CLEARLY RESULTS FROM THE PREVIOUS DECISIONS
OF THIS COURT AS TO FORECLOSE THE SUBJECT AND LEAVE NO ROOM FOR THE
INFERENCE THAT THE QUESTIONS SOUGHT TO BE RAISED CAN BE THE SUBJECT OF
CONTROVERSY.'"  289 U.S., AT 105-106.     /6/  HURN V. OURSLER, 289
U.S. 238, 245 - 246 (1933): 

" BUT THE RULE DOES NOT GO SO FAR AS TO PERMIT A FEDERAL COURT TO
ASSUME JURISDICTION OF A SEPARATE AND DISTINCT NON-FEDERAL CAUSE OF
ACTION BECAUSE IT IS JOINED IN THE SAME COMPLAINT WITH A FEDERAL CAUSE
OF ACTION.  THE DISTINCTION TO BE OBSERVED IS BETWEEN A CASE WHERE TWO
DISTINCT GROUNDS IN SUPPORT OF A SINGLE CAUSE OF ACTION ARE ALLEGED,
ONE ONLY OF WHICH PRESENTS A FEDERAL QUESTION, AND A CASE WHERE TWO
SEPARATE AND DISTINCT CAUSES OF ACTION ARE ALLEGED, ONE ONLY OF WHICH
IS FEDERAL IN CHARACTER.  IN THE FORMER, WHERE THE FEDERAL QUESTION
AVERRED IS NOT PLAINLY WANTING IN SUBSTANCE, THE FEDERAL COURT, EVEN
THOUGH THE FEDERAL GROUND BE NOT ESTABLISHED, MAY NEVERTHELESS RETAIN
AND DISPOSE OF THE CASE UPON THE NON-FEDERAL GROUND; IN THE LATTER IT
MAY NOT DO SO UPON THE NON-FEDERAL CAUSE OF ACTION."  (EMPHASIS IN
ORIGINAL.) 

/7/  THE COURT IN MINE WORKERS V. GIBBS, 383 U.S. AT 727, ALSO
STATED:  "  RECOGNITION OF A FEDERAL COURT'S WIDE LATITUDE TO DECIDE
ANCILLARY QUESTIONS OF STATE LAW DOES NOT IMPLY THAT IT MUST TOLERATE A
LITIGANT'S EFFORT TO IMPOSE UPON IT WHAT IS IN EFFECT ONLY A STATE LAW
CASE.  ONCE IT APPEARS THAT A STATE CLAIM CONSTITUTES THE REAL BODY OF
A CASE, TO WHICH THE FEDERAL CLAIM IS ONLY AN APPENDAGE, THE STATE
CLAIM MAY FAIRLY BE DISMISSED."  I ALSO SEE NO REASON WHY FEDERAL
COURTS SHOULD BE REQUIRED TO "TOLERATE" EFFORTS TO IMPOSE UPON THEM
FEDERAL CASES WHICH CONGRESS HAS CHOSEN TO LEAVE TO THE STATE COURTS. 

/8/  THE PORTION OF THE PETITIONERS' COMPLAINT SETTING FORTH THEIR
EQUAL PROTECTION CLAIM STATES IN FULL: 

" SAID REGULATION IRRATIONALLY AND INVIDIOUSLY DISCRIMINATES AGAINST
PLAINTIFF VICTIMS OF EVICTION.  NO BASIS EXISTS IN LAW OR FACT,
CONSISTENT WITH THE PURPOSES OF THE SOCIAL SECURITY ACT, FOR REDUCING
THE LEVEL OF PAYMENTS TO PLAINTIFFS WHO ARE THEN FORCED TO LIVE FAR
BELOW THE SUBSISTENCE LEVELS PROVIDED TO ALL OTHER PERSONS.  SAID
REGULATION APPLIES A WHOLLY DIFFERENT STANDARD IN DETERMINING THE GRANT
LEVELS OF PLAINTIFFS THAN THE INCOME RESOURCE AND EXEMPTIONS FROM LEVY
STANDARD, APPLICABLE TO ALL OTHER PERSONS IN VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION." 

/9/  331 F. SUPP., AT 168. 

/10/  THE COURT IN DANDRIDGE STATED: 

" CONFLICTING CLAIMS OF MORALITY AND INTELLIGENCE ARE RAISED BY
OPPONENTS AND PROPONENTS OF ALMOST EVERY MEASURE, CERTAINLY INCLUDING
THE ONE BEFORE US.  BUT THE INTRACTABLE ECONOMIC, SOCIAL, AND EVEN
PHILOSOPHICAL PROBLEMS PRESENTED BY PUBLIC WELFARE ASSISTANCE PROGRAMS
ARE NOT THE BUSINESS OF THIS COURT.  THE CONSTITUTION MAY IMPOSE
CERTAIN PROCEDURAL SAFEGUARDS UPON SYSTEMS OF WELFARE ADMINISTRATION,
GOLBERG V. KELLY, (397 U.S. 254 (1970)).  BUT THE CONSTITUTION DOES NOT
EMPOWER THIS COURT TO SECOND-GUESS STATE OFFICIALS CHARGED WITH THE
DIFFICULT RESPONSIBILITY OF ALLOCATING LIMITED PUBLIC WELFARE FUNDS
AMONG THE MYRIAD OF POTENTIAL RECIPIENTS.  CF. STEWARD MACH. CO. V.
DAVIS, 301 U.S. 548, 584 - 585; HELVERING V. DAVIS, 301 U.S. 619,
644."  397 U.S., AT 487. 

/11/  PETITIONERS ORIGINALLY SOUGHT TO CONVENE A THREE-JUDGE COURT
TO CONSIDER THEIR CONSTITUTIONAL CLAIMS BUT LATER WITHDREW THAT
REQUEST.  PURSUANT TO A STIPULATION BETWEEN THE PARTIES, THE CASE WAS
THEN TRIED BEFORE A SINGLE JUDGE ON THE ISSUE OF THE CLAIMED STATUTORY
CONFLICT ONLY.  GOOSBY V. OSSER, 409 U.S. 512 (1973), SPECIFIES THAT A
THREE-JUDGE COURT MUST BE CONVENED TO HEAR CONSTITUTIONAL QUESTIONS
WITHIN ITS JURISDICTION IF THEY ARE "SUBSTANTIAL."  IT IS TRUE, OF
COURSE THAT FEDERAL COURTS COMMONLY AVOID DECIDING CONSTITUTIONAL
QUESTIONS WHEN ALTERNATIVE GROUNDS FOR DECISION ARE AVAILABLE.  SEE
E.G., ASHWANDER V. TVA, 297 U.S. 288, 346 - 347 (1936) (BRANDEIS, J.,
CONCURRING).  BUT APPLICATION OF THAT PRINCIPLE TO CASES IN WHICH THE
CONSTITUTIONAL CLAIM IS PLEADED PRIMARILY TO CONFER JURISDICTION OVER A
PENDENT CLAIM WOULD LEAD TO CIRCULAR REASONING.  UNDER THAT THEORY A
CLAIM FOR WHICH CONGRESS PROVIDED NO JURISDICTION AND WHICH A SINGLE
JUDGE DETERMINED TO BE IMPROPERLY BROUGHT INTO FEDERAL COURT WOULD
BECOME A PREFERRED GROUND FOR DECISION SIMPLY BECAUSE THE COURT WISHED
TO AVOID THE CLAIM OVER WHICH CONGRESS GRANTED JURISDICTION IN THE
FIRST PLACE.  TO TURN TO THE PENDENT CLAIM WHEN PENDENT JURISDICTION IS
PROPERLY ASSUMED UNDER GIBBS MAY BE APPROPRIATE, BUT THE PRESENCE OF A
CONSTITUTIONAL CLAIM WHICH MIGHT THEREFORE BE AVOIDED SHOULD NOT ITSELF
BE AN INDEPENDENT BASIS FOR HEARING THE PENDENT CLAIM. 

IN RARE CASES, OF COURSE, A THREE-JUDGE COURT MAY DISAGREE WITH THE
SINGLE JUDGE'S VIEW THAT A CONSTITUTIONAL CLAIM LACKS MERIT AND RESOLVE
THE CONSTITUTIONAL ISSUE IN THE PLAINTIFF'S FAVOR.  AT THAT POINT, THE
PLAINTIFF WILL HAVE HIS RELIEF, AND THE CASE NEED GO NO FURTHER. 
CONCEDEDLY, A CONSTITUTIONAL DECISION WILL HAVE BEEN RENDERED WHEN A
STATUTORY DECISION MIGHT HAVE BEEN POSSIBLE, BUT THAT COST, IN THE FEW
CASES WHERE IT IS LIKELY TO ARISE, SEEMS LESS EXPENSIVE THAN THE COST
OF ALLOWING FEDERAL JURISDICTION TO BE UNNECESSARILY EXPANDED. 

CARL JAY NATHANSON ARGUED THE CAUSE FOR PETITIONERS, WITH HIM ON THE
BRIEFS WERE STEVEN J. COLE AND HENRY A. FREEDMAN. 

MICHAEL COLODNER, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR RESPONDENT LAVINE.  WITH HIM ON THE BRIEF WERE LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, AND SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT
ATTORNEY GENERAL. 
..END :

















SMITH V. GOGUEN, 415, U.S. 566 


       SMITH, SHERIFF V. GOGUEN

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
FIRST

CIRCUIT

        NO. 72 - 1254.  ARGUED NOVEMBER 12 - 13, 1973--, DECIDED

           MARCH 25, 1974; 471 F.2D 88, AFFIRMED. 


    APPELLEE, FOR WEARING A SMALL UNITED STATES FLAG SEWN TO THE

  SEAT OF HIS TROUSERS, WAS CONVICTED OF VIOLATING THE PROVISION OF

  THE MASSACHUSETTS FLAG-MISUSE STATUTE THAT SUBJECTS TO CRIMINAL

  LIABILITY ANYONE WHO "PUBLICLY . . . TREATS CONTEMPTUOUSLY THE

  FLAG OF THE UNITED STATES . . . ."  THE MASSACHUSETTS SUPREME

  JUDICIAL COURT AFFIRMED.  THE DISTRICT COURT IN APPELLEE'S HABEAS

  CORPUS ACTION FOUND THE "TREATS CONTEMPTUOUSLY" PHRASE OF THE

  STATUTE UNCONSTITUTIONALLY VAGUE AND OVERBROAD.  THE COURT OF

 APPEALS AFFIRMED.  HELD: 

     1.  THE CHALLENGED STATUTORY LANGUAGE, WHICH HAD RECEIVED NO

  NARROWING STATE COURT INTERPRETATION, IS VOID FOR VAGUENESS UNDER

  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, SINCE BY

  FAILING TO DRAW REASONABLY CLEAR LINES BETWEEN THE KINDS OF

NON-CEREMONIAL TREATMENT OF THE FLAG THAT ARE CRIMINAL AND THOSE

  THAT ARE NOT IT DOES NOT PROVIDE ADEQUATE WARNING OF FORBIDDEN

  CONDUCT AND SETS FORTH A STANDARD SO INDEFINITE THAT POLICE,

  COURT, AND JURY ARE FREE TO REACT TO NOTHING MORE THAN THEIR OWN

  PREFERENCES FOR TREATMENT OF THE FLAG.  PP. 572 - 576, 578. 

     2.  BY CHALLENGING IN STATE COURTS THE VAGUENESS OF THE
"TREATS

  CONTEMPTUOUSLY" PHRASE AS APPLIED TO HIM, APPELLEE PRESERVED HIS

  DUE PROCESS CLAIM FOR PURPOSES OF FEDERAL HABEAS CORPUS

  JURISDICTION, PICARD V. CONNOR, 404 U.S. 270, SINCE THE

  CHALLENGED LANGUAGE IS VOID FOR VAGUENESS AS APPLIED TO APPELLEE

OR TO ANYONE ELSE.  A "HARD-CORE" VIOLATOR CONCEPT HAS LITTLE

  MEANING WITH REGARD TO THE CHALLENGED LANGUAGE, BECAUSE THE

  PHRASE AT ISSUE IS VAGUE NOT IN THE SENSE OF REQUIRING A PERSON

  TO CONFORM HIS CONDUCT TO AN IMPRECISE BUT COMPREHENSIBLE

  STANDARD, BUT IN THE SENSE OF NOT SPECIFYING ANY ASCERTAINABLE

  STANDARD OF CONDUCT AT ALL.  PP. 576 - 578. 

     3.  EVEN IF, AS APPELLANT CONTENDS, THE STATUTE COULD BE SAID

  TO DEAL ONLY WITH "ACTUAL" FLAGS OF THE UNITED STATES, THIS WOULD

  NOT RESOLVE THE CENTRAL VAGUENESS DEFICIENCY OF FAILING TO DEFINE

  CONTEMPTUOUS TREATMENT.  PP. 578 - 579. 

     4.  THAT OTHER WORDS OF THE DESECRATION AND CONTEMPT PORTION
OF

  THE STATUTE ADDRESS MORE SPECIFIC CONDUCT (MUTILATION, TRAMPLING,

  AND DEFACING OF THE FLAG) DOES NOT ASSIST APPELLANT, SINCE

  APPELLEE WAS TRIED SOLELY UNDER THE "TREATS CONTEMPTUOUSLY"

  PHRASE, AND THE HIGHEST STATE COURT IN THIS CASE DID NOT CONSTRUE

  THE CHALLENGED PHRASE AS TAKING COLOR FROM MORE SPECIFIC

  ACCOMPANYING LANGUAGE.  PP. 579 - 580. 

     5. REGARDLESS OF WHETHER RESTRICTION BY THAT COURT OF THE

  SCOPE OF THE CHALLENGED PHRASE TO INTENTIONAL CONTEMPT MAY BE

  HELD AGAINST APPELLEE, SUCH AN INTERPRETATION NEVERTHELESS DOES

  NOT CLARIFY WHAT CONDUCT CONSTITUTES CONTEMPT OF THE FLAG,

  WHETHER INTENTIONAL OR INADVERTENT.  P. 580. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, STEWART, AND MARSHALL, JJ., JOINED.  WHITE, J.,

  FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 583. 

  BLACKMUN, J., POST, P. 590, AND REHNQUIST, J., POST, P. 591,

  FILED DISSENTING OPINIONS, IN WHICH BURGER, C.J., JOINED. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE SHERIFF OF WORCESTER COUNTY, MASSACHUSETTS APPEALS FROM A JUDGMENT
OF THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT HOLDING THE
CONTEMPT PROVISION OF THE MASSACHUSETTS FLAG-MISUSE STATUTE
UNCONSTITUTIONALLY VAGUE AND OVERBROAD.  471 F.2D 88 (1972), AFF'G 343
F. SUPP. 161 (MASS).  WE NOTED PROBABLE JURISDICTION.  412 U.S. 905
(1973).  WE AFFIRM ON THE VAGUENESS GROUND.  WE DO NOT REACH THE
CORRECTNESS OF THE HOLDING BELOW ON OVERBREADTH OR OTHER FIRST
AMENDMENT GROUNDS. 

        I 

THE SLENDER RECORD IN THIS CASE REVEALS LITTLE MORE THAN THE GOGUEN
WORE A SMALL CLOTH VERSION OF THE UNITED STATES FLAG SEWN TO THE SEAT
OF HIS TROUSERS.  /1/  THE FLAG WAS APPROXIMATELY FOUR BY SIX INCHES
AND WAS DISPLAYED TO THE REAR OF GOGUEN'S BLUE JEANS.  ON JANUARY 30,
1970, TWO POLICE OFFICERS IN LEOMINSTER, MASSACHUSETTS, SAW GOGUEN
BEDECKED IN THAT FASHION.  THE FIRST OFFICER ENCOUNTERED GOGUEN
STANDING AND TALKING WITH A GROUP OF PERSONS ON A PUBLIC STREET.  THE
GROUP APPARENTLY WAS NOT ENGAGED IN ANY DEMONSTRATION OR OTHER PROTEST
ASSOCIATED WITH GOGUEN'S APPAREL.  /2/  NO DISRUPTION OF TRAFFIC OR
BREACH OF THE PEACE OCCURRED.  WHEN THIS OFFICER APPROACHED GOGUEN TO
QUESTION HIM ABOUT THE FLAG, THE OTHER PERSONS PRESENT LAUGHED.  SOME
TIME LATER, THE SECOND OFFICER OBSERVED GOGUEN IN THE SAME ATTIRE
WALKING IN THE DOWNTOWN BUSINESS DISTRICT OF LEOMINSTER. 

THE FOLLOWING DAY THE FIRST OFFICER SWORE OUT A COMPLAINT AGAINST
GOGUEN UNDER THE CONTEMPT PROVISION OF THE MASSACHUSETTS FLAG-MISUSE
STATUTE.  THE RELEVANT PART OF THE STATUTE THEN READ: 

     " WHOEVER PUBLICLY MUTILATES, TRAMPLES UPON, DEFACES OR TREATS

  CONTEMPTUOUSLY THE FLAG OF THE UNITED STATES . . . , WHETHER SUCH

  FLAG IS PUBLIC OR PRIVATE PROPERTY . . . , SHALL BE PUNISHED BY A

  FINE OF NOT LESS THAN TEN NOR MORE THAN ONE HUNDRED DOLLARS OR BY

  IMPRISONMENT FOR NOT MORE THAN ONE YEAR, OR BOTH.  . . ."  /3/

DESPITE THE FIRST SIX WORDS OF THE STATUTE, GOGUEN WAS NOT CHARGED WITH
ANY ACT OF PHYSICAL DESECRATION.  /4/  AS PERMITTED BY THE DISJUNCTIVE
STRUCTURE OF THE PORTION OF THE STATUTE DEALING WITH DESECRATION AND
CONTEMPT, THE OFFICER CHARGED SPECIFICALLY AND ONLY THAT GOGUEN "DID
PUBLICLY TREAT CONTEMPTUOUSLY THE FLAG OF THE UNITED STATES . . . ." 
/5/ 

AFTER JURY TRIAL IN THE WORCESTER COUNTY SUPERIOR COURT, GOGUEN WAS
FOUND GUILTY.  THE COURT IMPOSED A SENTENCE OF SIX MONTHS IN THE
MASSACHUSETTS HOUSE OF CORRECTIONS.  GOGUEN APPEALED TO THE
MASSACHUSETTS SUPREME JUDICIAL COURT, WHICH AFFIRMED.  COMMONWEALTH V.
GOGUEN--MASS.--,279 N.E. 2D 666 (1972).  THAT COURT REJECTED GOGUEN'S
VAGUENESS ARGUMENT WITH THE COMMENT THAT "(WHATEVER THE UNCERTAINTIES
IN OTHER CIRCUMSTANCES, WE SEE NO VAGUENESS IN THE STATUTE AS APPLIED
HERE."  ID., AT--, 279 N.E. 2D, AT 667.  THE COURT CITED NO
MASSACHUSETTS PRECEDENTS INTERPRETING THE "TREATS CONTEMPTUOUSLY"
PHRASE OF THE STATUTE.  /6/ 

AFTER GOGUEN BEGAN SERVING HIS SENTENCE, HE WAS GRANTED BAIL AND
THEN ORDERED RELEASED ON A WRIT OF HABEAS CORPUS BY THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.  343 F. SUPP. 161. 
THE DISTRICT COURT FOUND THE FLAG-CONTEMPT PORTION OF THE MASSACHUSETTS
STATUTE IMPERMISSIBLY VAGUE UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT AS WELL AS OVERBROAD UNDER THE FIRST AMENDMENT. 
IN UPHOLDING GOGUEN'S VOID-FOR-VAGUENESS CONTENTIONS, THE COURT
CONCLUDED THAT THE WORDS "TREATS CONTEMPTUOUSLY" DID NOT PROVIDE A
"READILY ASCERTAINABLE STANDARD OF GUILT."  ID., AT 167.  ESPECIALLY IN
"THESE DAYS WHEN FLAGS ARE COMMONLY DISPLAYED ON HATS, GARMENTS AND
VEHICLES . . . ," THE WORDS UNDER WHICH GOGUEN WAS CONVICTED "LEAVE
CONJECTURAL, IN MANY INSTANCES, WHAT CONDUCT MAY SUBJECT THE ACTOR TO
CRIMINAL PROSECUTION.  IBID.  THE COURT ALSO FOUND THAT THE STATUTORY
LANGUAGE AT ISSUE "MAY BE SAID TO ENCOURAGE ARBITRARY AND ERRATIC
ARRESTS AND CONVICTIONS."  IBID. 

THE COURT OF APPEALS, WITH ONE JUDGE CONCURRING, AFFIRMED THE
DISTRICT COURT ON BOTH FIRST AMENDMENT AND VAGUENESS GROUNDS.  471 F.2D
88.  WITH REGARD TO THE LATTER GROUND, THE COURT OF APPEALS CONCLUDED
THAT "RESOLUTION OF (GOGUEN'S VOID-FOR-VAGUENESS) CHALLENGE TO THE
STATUTE AS APPLIED TO HIM NECESSARILY ADJUDICATES THE STATUTE'S FACIAL
CONSTITUTIONALITY . . . ."  ID., AT 94.  TREATING AS-APPLIED AND ON-THE
FACE VAGUENESS ATTACKS AS ESSENTIALLY INDISTINGUISHABLE IN LIGHT OF THE
IMPRECISION OF THE STATUTORY PHRASE AT ISSUE, ID., AT 92, 94, THE COURT
FOUND THAT THE LANGUAGE FAILED TO PROVIDE ADEQUATE WARNING TO ANYONE,
CONTAINED INSUFFICIENT GUIDELINES FOR LAW ENFORCEMENT OFFICIALS, AND
SET JURIES AND COURTS AT LARGE.  ID., AT 94 - 96.  SENIOR CIRCUIT JUDGE
HAMLEY, SITTING BY DESIGNATION FROM THE NINTH CIRCUIT, CONCURRED SOLELY
IN THE VOID-FOR-VAGUENESS HOLDING.  ID., AT 105.  JUDGE HAMLEY SAW NO
NEED TO REACH THE "FAR BROADER CONSTITUTIONAL GROUND" OF FIRST
AMENDMENT OVERBREADTH RELIED ON BY THE MAJORITY, NOTING THE "SETTLED
PRINCIPLE OF APPELLATE ADJUDICATION THAT CONSTITUTIONAL QUESTIONS ARE
NOT TO BE DEALT WITH UNLESS THIS IS NECESSARY TO DISPOSE OF THE
APPEAL."  IBID.

        II 

WE AGREE WITH THE HOLDINGS OF THE DISTRICT COURT AND THE COURT OF
APPEALS ON THE DUE PROCESS DOCTRINE OF VAGUENESS.  THE SETTLED
PRINCIPLES OF THAT DOCTRINE REQUIRE NO EXTENSIVE RESTATEMENT HERE.  /7/
THE DOCTRINE INCORPORATES NOTIONS OF FAIR NOTICE OR WARNING.  /8/
MOREOVER, IT REQUIRES LEGISLATURES TO SET REASONABLY CLEAR GUIDELINES
FOR LAW ENFORCEMENT OFFICIALS AND TRIERS OF FACT IN ORDER TO PREVENT
"ARBITRARY AND DISCRIMINATORY ENFORCEMENT.  /9/  WHERE A STATUTE'S
LITERAL SCOPE, UNAIDED BY A NARROWING STATE COURT INTERPRETATION, IS
CAPABLE OF REACHING EXPRESSION SHELTERED BY THE FIRST AMENDMENT, THE
DOCTRINE DEMANDS A GREATER DEGREE OF SPECIFICITY THAN IN OTHER
CONTEXTS.  /10/  THE STATUTORY LANGUAGE AT ISSUE HERE, "PUBLICLY . . .
," TREATS CONTEMPTUOUSLY THE FLAG OF THE UNITED STATES . . . ," HAS
SUCH SCOPE, E.G., STREET V. NEW YORK, 394 U.S. 576 (1969) (VERBAL FLAG
CONTEMPT), AND AT THE RELEVANT TIME WAS WITHOUT THE BENEFIT OF JUDICIAL
CLARIFICATION.  /11/ 

FLAG CONTEMPT STATUTES HAVE BEEN CHARACTERIZED AS VOID FOR LACK OF
NOTICE ON THE THEORY THAT "(WHAT IS CONTEMPTUOUS TO ONE MAN MAY BE A
WORK OF ART TO ANOTHER.  /12/ GOGUEN'S BEHAVIOR CAN HARDLY BE DESCRIBED
AS ART. IMMATURITY OR "SILLY CONDUCT"  /13/  PROBABLY COMES CLOSER TO
THE MARK.  BUT WE SEE THE FORCE OF THE DISTRICT COURT'S OBSERVATION
THAT THE FLAG HAS BECOME "AN OBJECT OF YOUTH FASHION AND HIGH CAMP . .
. ."  343 F. SUPP., AT 164.  AS BOTH COURTS BELOW NOTED, CASUAL
TREATMENT OF THE FLAG IN MANY CONTEXTS HAS BECOME A WIDESPREAD
CONTEMPORARY PHENOMENON.  ID., AT 164, 167; 471 F.2D, AT 96.  FLAG
WEARING IN A DAY OF RELAXED CLOTHING STYLES MAY BE SIMPLY FOR ADORNMENT
OR A PLOY TO ATTRACT ATTENTION.  IT AND MANY OTHER CURRENT, CARELESS
USES OF THE FLAG NEVERTHELESS CONSTITUTE UNCEREMONIAL TREATMENT THAT
MANY PEOPLE MAY VIEW AS CONTEMPTUOUS.  YET IN A TIME OF WIDELY VARYING
ATTITUDES AND TASTES FOR DISPLAYING SOMETHING AS UBIQUITOUS AS THE
UNITED STATES FLAG OR REPRESENTATIONS OF IT, IT COULD HARDLY BE THE
PURPOSE OF THE MASSACHUSETTS LEGISLATURE TO MAKE CRIMINAL EVERY
INFORMAL USE OF THE FLAG.  THE STATUTORY LANGUAGE UNDER WHICH GOGUEN
WAS CHARGED, HOWEVER, FAILS TO DRAW REASONABLY CLEAR LINES BETWEEN THE
KINDS OF NONCEREMONIAL TREATMENT THAT ARE CRIMINAL AND THOSE THAT ARE
NOT.  DUE PROCESS REQUIRES THAT ALL "BE INFORMED AS TO WHAT THE STATE
COMMANDS OR FORBIDS."  LANZETTA V. NEW JERSEY, 306 U.S. 451, 453
(1939), AND THAT "MEN OF COMMON INTELLIGENCE" NOT BE FORCED TO GUESS AT
THE MEANING OF THE CRIMINAL LAW.  CONNALLY V. GENERAL CONSTRUCTION CO.,
269 U.S. 385, 391 (1926).  GIVEN TODAY'S TENDENCIES TO TREAT THE FLAG
UNCEREMONIOUSLY, THOSE NOTICE STANDARDS ARE NOT SATISFIED HERE. 

WE RECOGNIZE THAT IN A NONCOMMERCIAL CONTEXT BEHAVIOR AS A GENERAL
RULE IS NOT MAPPED OUT IN ADVANCE ON THE BASIS OF STATUTORY LANGUAGE. 
/14/  IN SUCH CASES, PERHAPS THE MOST MEANINGFUL ASPECT OF THE
VAGUENESS DOCTRINE IS NOT ACTUAL NOTICE, BUT THE OTHER  PRINCIPAL
ELEMENT OF THE DOCTIRNE-- THE REQUIREMENT THAT A LEGISLATURE ESTABLISH
MINIMAL GUIDELINES TO GOVERN LAW ENFORCEMENT.  IT IS IN THIS REGARD
THAT THE STATUTORY LANGUAGE UNDER SCRUTINY HAS ITS MOST NOTABLE
DEFICIENCIES. 

IN ITS TERMS, THE LANGUAGE AT ISSUE IS SUFFICIENTLY UNBOUNDED TO
PROHIBIT, AS THE DISTRICT COURT NOTED, "ANY PUBLIC DEVIATION FROM
FORMAL FLAG ETIQUETTE . . . ."  343 F. SUPP. AT 167.  UNCHANGED
THROUGHOUT ITS 70-YEAR HISTORY, /15/  THE "TREATS CONTEMPTUOUSLY"
PHRASE WAS ALSO DEVOID OF A NARROWING STATE COURT INTERPRETATION AT THE
RELEVANT TIME IN THIS CASE.  /16/  WE ARE WITHOUT AUTHORITY TO CURE
THAT DEFECT.  /17/  STATUTORY LANGUAGE OF SUCH A STANDARDLESS SWEEP
ALLOWS POLICEMEN, PROSECUTORS, AND JURIES TO PURSUE THEIR PERSONAL
PREDILECTIONS.  LEGISLATURES MAY NOT SO ABDICATE THEIR RESPONSIBILITIES
FOR SETTING THE STANDARDS OF THE CRIMINAL LAW.  E.G., PAPACHRISTOU V.
CITY OF JACHSONVILLE, 405 U.S. 156, 165 - 169 (1972).  IN GREGORY V.
CITY OF CHICAGO, 394 U.S. 111, 120 (1969), MR. JUSTICE BLACK, IN A
CONCURRING OPINION, VOICED A CONCERN, WHICH WE SHARE, AGAINST
ENTRUSTING LAWMAKING "TO THE MOMENT-TO-MOMENT JUDGMENT OF THE POLICEMAN
ON HIS BEAT."  THE APTNESS OF HIS ADMONITION IS EVIDENT FROM
APPELLANT'S CANDID CONCESSION DURING ORAL ARGUMENT BEFORE THE COURT OF
APPEALS REGARDING STATE ENFORCEMENT STANDARDS FOR THAT PORTION OF THE
STATUTE UNDER WHICH GOGUEN WAS CONVICTED: 

"(AS COUNSEL (FOR APPELLANT) ADMITTED, A WAR PROTESTOR WHO, WHILE
ATTENDING A RALLY AT WHICH IT BEGINS TO RAIN, EVIDENCES HIS DISRESPECT
FOR THE AMERICAN FLAG BY CONTEMPTUOUSLY COVERING HIMSELF WITH IT IN
ORDER TO AVOID GETTING WET, WOULD BE PROSECUTED UNDER THE MASSACHUSETTS
STATUTE.  YET A MEMBER OF THE AMERICAN LEGION WHO, CAUGHT IN THE SAME
RAINSTORM WHILE RETURNING FROM AN ' AMERICA--, LOVE IT OR LEAVE IT'
RALLY, SIMILARLY USES THE FLAG, BUT DOES SO REGRETTABLY AND WITHOUT A
CONTEMPTUOUS ATTITUDE, WOULD NOT BE PROSECUTED."  471 F.2D, AT 102
(EMPHASIS IN ORIGINAL).  WHERE INHERENTLY VAGUE STATUTORY LANGUAGE
PERMITS SUCH SELECTIVE LAW ENFORCEMENT, THERE IS A DENIAL OF DUE
PROCESS. 

        III 

APPELLANT'S ARGUMENTS THAT THE "TREATS CONTEMPTUOUSLY"  PHRASE IS
NOT IMPERMISSIBLY VAGUE, OR AT LEAST SHOULD NOT BE SO HELD IN THIS
CASE, ARE UNPERSUASIVE.  APPELLANT DEVOTES A SUBSTANTIAL PORTION OF HIS
OPENING BRIEF, AS HE DID HIS ORAL ARGUMENT, TO THE CONTENTION THAT
GOGUEN FAILED TO PRESERVE HIS PRESENT VOID-FOR-VAGUENESS CLAIM FOR THE
PURPOSES OF FEDERAL HABEAS CORPUS JURISDICTION.  APPELLANT CONCEDES
THAT THE ISSUE OF "VAGUENESS AS APPLIED" IS PROPERLY BEFORE THE FEDERAL
COURTS, /18/  BUT CONTENDS THAT GOGUEN'S ONLY ARGUABLE CLAIM IS THAT
THE STATUTE IS VAGUE ON ITS FACE.  THE LATTER CLAIM, APPELLANT INSISTS,
WAS NOT PRESENTED TO THE STATE COURTS WITH THE REQUISITE FAIR
PRECISION.  PICARD V. CONNOR, 404 U.S. 270 (1971).  THIS EXHAUSTION-OF
REMEDIES ARGUMENT IS BELATEDLY RAISED, /19/  AND IT FAILS TO TAKE THE
FULL MEASURE OF GOGUEN'S EFFORTS TO MOUNT A VAGUENESS ATTACK IN THE
STATE COURTS.  /20/  WE DO NOT DEAL WITH THE POINT AT LENGTH, HOWEVER,
FOR WE FIND THE RELEVANT STATUTORY LANGUAGE IMPERMISSIBLY VAGUE AS
APPLIED TO GOGUEN.  WITHOUT DOUBT THE "SUBSTANCE" OF THIS CLAIM WAS
"FAIRLY PRESENTED" TO THE STATE COURTS UNDER THE EXHAUSTION STANDARDS
OF PICARD, SUPRA, AT 275, 278. 

APPELLANT'S EXHAUSTION-OF-REMEDIES ARGUMENT IS PREMISED ON THE
NOTION THAT GOGUEN'S BEHAVIOR RENDERED HIM A HARD-CORE VIOLATOR AS TO
WHOM THE STATUTE WAS NOT VAGUE, WHATEVER ITS IMPLICATIONS FOR THOSE
ENGAGED IN DIFFERENT CONDUCT.  TO BE SURE, THERE ARE STATUTES THAT BY
THEIR TERMS OR AS AUTHORITATIVELY CONSTRUED APPLY WITHOUT QUESTION TO
CERTAIN ACTIVITIES, BUT WHOSE APPLICATION TO OTHER BEHAVIOR IS
UNCERTAIN.  THE HARD-CORE VIOLATOR CONCEPT MAKES SOME SENSE WITH REGARD
TO SUCH STATUTES.  THE PRESENT STATUTE, HOWEVER, IS NOT IN THAT
CATEGORY.  THIS CRIMINAL PROVISION IS VAGUE "NOT IN THE SENSE THAT IT
REQUIRES A PERSON TO CONFORM HIS CONDUCT TO AN IMPRECISE BUT
COMPREHENSIBLE NORMATIVE STANDARD, BUT RATHER IN THE SENSE THAT NO
STANDARD OF CONDUCT IS SPECIFIED AT ALL."  COATES V. CITY OF
CINCINNATI, 402 U.S. 611, 614 (1971).  SUCH A PROVISION SIMPLY HAS NO
CORE.  THIS ABSENCE OF ANY ASCERTAINABLE STANDARD FOR INCLUSION AND
EXCLUSION IS PRECISELY WHAT OFFENDS THE DUE PROCESS CLAUSE.  THE
DEFICIENCY IS PARTICULARLY OBJECTIONABLE IN VIEW OF THE UNFETTERED
LATITUDE THEREBY ACCORDED LAW ENFORCEMENT OFFICIALS AND TRIERS OF
FACT.  UNTIL IT IS CORRECTED EITHER BY AMENDMENT OR JUDICIAL
CONSTRUCTION, IT AFFECTS ALL WHO ARE PROSECUTED UNDER THE STATUTORY
LANGUAGE.  IN OUR OPINION THE DEFECT EXISTS IN THIS CASE.  THE LANGUAGE
AT ISSUE IS VOID FOR VAGUENESS AS APPLIED TO GOGUEN BECAUSE IT
SUBJECTED HIM TO CRIMINAL LIABILITY UNDER A STANDARD SO INDEFINITE THAT
POLICE, COURT, AND JURY WERE FREE TO REACT TO NOTHING MORE THAN THEIR
OWN PREFERENCES FOR TREATMENT OF THE FLAG. 

TURNING FROM THE EXHAUSTION POINT TO THE MERITS OF THE VAGUENESS
QUESTION PRESENTED, APPELLANT ARGUES THAT ANY NOTICE DIFFICULTIES ARE
AMELIORATED BY THE NARROW SUBJECT MATTER OF THE STATUTE, VIZ., "ACTUAL"
FLAGS OF THE UNITED STATES.  /21/  APPELLANT CONTENDS THAT THIS TAKES
SOME OF THE VAGUENESS AWAY FROM THE PHRASE, 'TREATS CONTEMPTUOUSLY . .
. .'"  /22/  ANYONE WHO "WANTS NOTICE AS TO WHAT CONDUCT THIS STATUTE
PROSCRIBES . . . , IMMEDIATELY KNOWS THAT IT HAS SOMETHING TO DO WITH
FLAGS AND IF HE WANTS TO STAY CLEAR OF VIOLATING THIS STATUTE, HE JUST
HAS TO STAY CLEAR OF DOING SOMETHING TO THE UNITED STATES FLAG."  /23/
APART FROM THE AMBIGUITIES PRESENTED BY THE CONCEPT OF AN "ACTUAL"
FLAG, /24/  WE FAIL TO SEE HOW THIS ALLEGED PARTICULARITY RESOLVES THE
CENTRAL VAGUENESS QUESTION--, THE ABSENCE OF ANY STANDARD FOR DEFINING
CONTEMPTUOUS TREATMENT.     APPELLANT'S REMAINING ARGUMENTS ARE EQUALLY
UNAVAILING.  IT IS ASSERTED THAT THE FIRST SIX WORDS OF THE STATUTE ADD
SPECIFICITY TO THE "TREATS CONTEMPTUOUSLY" PHRASE, AND THAT THE
MASSACHUSETTS SUPREME JUDICIAL COURT CUSTOMARILY CONSTRUES GENERAL
LANGUAGE TO TAKE ON COLOR FROM MORE SPECIFIC ACCOMPANYING LANGUAGE. 
BUT IT IS CONCEDED THAT GOGUEN WAS CONVICTED UNDER THE GENERAL PHRASE
ALONE, AND THAT THE HIGHEST STATE COURT DID NOT RELY ON ANY GENERAL-TO
SPECIFIC PRINCIPLE OF STATUTORY INTERPRETATION IN THIS CASE.  /25/
APPELLANT FURTHER ARGUES THAT THE SUPREME JUDICIAL COURT IN GOGUEN'S
CASE HAS RESTRICTED THE SCOPE OF THE STATUTE TO INTENTIONAL CONTEMPT. 
/26/  ASIDE FROM THE PROBLEMS PRESENTED BY AN APPELLATE COURT'S
LIMITING CONSTRUCTION IN THE VERY CASE IN WHICH A DEFENDANT HAS BEEN
TRIED UNDER A PREVIOUSLY UNNARROWED STATUTE, /27/  THIS HOLDING STILL
DOES NOT CLARIFY WHAT CONDUCT CONSTITUTES CONTEMPT, WHETHER INTENTIONAL
OR INADVERTENT. 

FINALLY, APPELLANT ARGUES THAT STATE LAW ENFORCEMENT AUTHORITIES
HAVE SHOWN THEMSELVES READY TO INTERPRET THIS PENAL STATUTE NARROWLY
AND THAT THE STATUTE, PROPERLY READ, REACHES ONLY DIRECT, IMMEDIATE
CONTEMPTUOUS ACTS THAT "ACTUALLY IMPINGE UPON THE PHYSICAL INTEGRITY OF
THE FLAG . . . ."  /28/  THERE IS NO SUPPORT IN THE RECORD FOR THE
FORMER POINT.  /29/  SIMILARLY, NOTHING IN THE STATE COURT'S OPINION IN
THIS CASE OR IN ANY EARLIER OPINION OF THAT COURT SUSTAINS THE LATTER. 
IN ANY EVENT, GOGUEN WAS CHARGED ONLY UNDER THE WHOLLY OPEN-ENDED
LANGUAGE OF PUBLICLY TREATING THE FLAG "CONTEMPTUOUSLY."  THERE WAS NO
ALLEGATION OF PHYSICAL DESECRATION. 

THERE ARE AREAS OF HUMAN CONDUCT WHERE, BY THE NATURE OF THE
PROBLEMS PRESENTED, LEGISLATURES SIMPLY CANNOT ESTABLISH STANDARDS WITH
GREAT PRECISION.  CONTROL OF THE BROAD RANGE OF DISORDERLY CONDUCT THAT
MAY INHIBIT A POLICEMAN IN THE PERFORMANCE OF HIS OFFICIAL DUTIES MAY
BE ONE SUCH AREA, REQUIRING AS IT DOES AN ON-THE-SPOT ASSESSMENT OF THE
NEED TO KEEP ORDER.  CF. COLTEN V. KENTUCKY, 407 U.S. 104 (1972).  BUT
THERE IS NO COMPARABLE REASON FOR COMMITTING BROAD DISCRETION TO LAW
ENFORCEMENT OFFICIALS IN THE AREA OF FLAG CONTEMPT.  INDEED, BECAUSE
DISPLAY OF THE FLAG IS SO COMMON AND TAKES SO MANY FORMS, CHANGING FROM
ONE GENERATION TO ANOTHER AND OFTEN DIFFICULT TO DISTINGUISH IN
PRINCIPLE, A LEGISLATURE SHOULD DEFINE WITH SOME CARE THE FLAG BEHAVIOR
IT INTENDS TO OUTLAW.  CERTAINLY NOTHING PREVENTS A LEGISLATURE FROM
DEFINING WITH SUBSTANTIAL SPECIFICITY WHAT CONSTITUTES FORBIDDEN
TREATMENT OF UNITED STATES FLAGS.  /30/  THE STATUTORY LANGUAGE AT
ISSUE HERE FAILS TO APPROACH THAT GOAL AND IS VOID FOR VAGUENESS.  /31/
THE JUDGMENT IS AFFIRMED.  /32/

    IT IS SO ORDERED. 

/1/  THE RECORD CONSISTS SOLELY OF THE AMENDED BILL OF EXCEPTIONS
GOGUEN FILED IN THE MASSACHUSETTS SUPREME JUDICIAL COURT, THE OPPOSING
BRIEFS BEFORE THAT COURT, THE COMPLAINT UNDER WHICH GOGUEN WAS
PROSECUTED, AND GOGUEN'S FEDERAL HABEAS CORPUS PETITION.  APP. 1 - 36,
42 - 43.  WE DO NOT HAVE A TRIAL TRANSCRIPT, ALTHOUGH GOGUEN'S AMENDED
BILL OF EXCEPTIONS BRIEFLY SUMMARIZES SOME OF THE TESTIMONY GIVEN BY
WITNESSES FOR THE PROSECUTION AT HIS STATE TRIAL.  GOGUEN DID NOT TAKE
THE STAND.  THUS WE DO NOT HAVE OF RECORD HIS ACCOUNT OF WHAT
TRANSPIRED AT THE TIME OF HIS ARREST OR OF HIS PURPOSE IN WEARING A
FLAG ON THE SEAT OF HIS TROUSERS. 

/2/  TR. OF ORAL ARG. 5 - 6, 35 - 36. 

/3/  MASS. GEN. LAWS ANN., C. 264, 5.  OMITTING SEVERAL SENTENCES
PROTECTING THE CEREMONIAL ACTIVITIES OF CERTAIN VETERANS' GROUPS, THE
STATUTE READ AS FOLLOWS AT THE TIME OF GOGUEN'S ARREST AND CONVICTION:
"5.  FLAG; PENALTY FOR MISUSE 

" WHOEVER PUBLICLY MUTILATES, TRAMPLES UPON, DEFACES OR TREATS
CONTEMPTUOUSLY THE FLAG OF THE UNITED STATES OR MASSACHUSETTS, WHETHER
SUCH FLAG IS PUBLIC OR PRIVATE PROPERTY, OR WHOEVER DISPLAYS SUCH FLAG
OR ANY REPRESENTATION THEREOF UPON WHICH ARE WORDS, FIGURES,
ADVERTISEMENTS OR DESIGNS, OR WHOEVER CAUSES OR PERMITS SUCH FLAG TO BE
USED IN A PARADE AS A RECEPTACLE FOR DEPOSITING OR COLLECTING MONEY OR
ANY OTHER ARTICLE OR THING, OR WHOEVER EXPOSES TO PUBLIC VIEW,
MANUFACTURES, SELLS, EXPOSES FOR SALE, GIVES AWAY OR HAS IN POSSESSION
FOR SALE OR TO GIVE AWAY OR FOR USE FOR ANY PURPOSE, ANY ARTICLE OR
SUBSTANCE, BEING AN ARTICLE OF MERCHANDISE OR A RECEPTACLE OF
MERCHANDISE OR ARTICLES UPON WHICH IS ATTACHED, THROUGH A WRAPPING OR
OTHERWISE, ENGRAVED OR PRINTED IN ANY MANNER, A REPRESENTATION OF THE
UNITED STATES FLAG, OR WHOEVER USES ANY PRESENTATION OF THE ARMS OR THE
GREAT SEAL OF THE COMMONWEALTH FOR ANY ADVERTISING OR COMMERCIAL
PURPOSE, SHALL BE PUNISHED BY A FINE OF NOT LESS THAN TEN NOR MORE THAN
ONE HUNDRED DOLLARS OR BY IMPRISONMENT FOR NOT MORE THAN ONE YEAR, OR
BOTH.  WORDS, FIGURES, ADVERTISEMENTS OR DESIGNS ATTACHED TO, OR
DIRECTLY OR INDIRECTLY CONNECTED WITH, SUCH FLAG OR ANY REPRESENTATION
THEREOF IN SUCH MANNER THAT SUCH FLAG OR ITS REPRESENTATION IS USED TO
ATTRACT ATTENTION TO OR ADVERTISE SUCH WORDS, FIGURES, ADVERTISEMENTS
OR DESIGNS, SHALL FOR THE PURPOSES OF THIS SECTION BE DEEMED TO BE UPON
SUCH FLAG." 

THE STATUTE IS AN AMALGAM OF PROVISIONS DEALING WITH FLAG
DESECRATION AND CONTEMPT (THE FIRST 26 WORDS) AND WITH COMMERCIAL
MISUSE OR OTHER EXPLOITATION OF FLAGS OF THE STATE AND NATIONAL
GOVERNMENT.  THIS CASE CONCERNS ONLY THE "TREATS CONTEMPTUOUSLY" PHRASE
OF THE STATUTE, WHICH HAS APPARENTLY BEEN IN THE STATUTE SINCE ITS
ENACTMENT IN 1899.  471 F.2D 88, 90 N. 2 (1972). 

IN 1971, SUBSEQUENT TO GOGUEN'S PROSECUTION, THE DESECRATION AND
CONTEMPT PORTION OF THE STATUTE WAS AMENDED TWICE.  ON MARCH 8, 1971,
THE LEGISLATURE, PER STATS. 1971, C. 74, MODIFIED THE FIRST SENTENCE BY
INSERTING "BURNS OR OTHERWISE" BETWEEN THE TERMS "PUBLICLY" AND
"MUTILATES," AND, IN ADDITION, BY INCREASING THE FINE.  MASS. GEN. LAWS
ANN., C. 264, 5 (SUPP. 1973).  ON AUGUST 12, 1971, VIA STATS. 1971, C.
655, THE LEGISLATURE APPENDED A NEW SENTENCE DEFINING "THE FLAG OF THE
UNITED STATES" PHRASE APPEARING IN THE FIRST SENTENCE:  " FOR THE
PURPOSES OF THIS SECTION THE TERM 'FLAG OF THE UNITED STATES' SHALL
MEAN ANY FLAG WHICH HAS BEEN DESIGNATED BY ACT OR RESOLUTION OF THE
CONGRESS OF THE UNITED STATES AS THE NATIONAL EMBLEM, WHETHER OR NOT
SUCH DESIGNATION IS CURRENTLY IN FORCE."  IBID.  THE 1971 AMENDMENTS
ARE RELEVANT TO THIS CASE ONLY IN THE TANGENTIAL SENSE THAT THEY
INDICATE A RECOGNITION BY THE LEGISLATURE OF THE NEED TO TIGHTEN UP
THIS IMPRECISE STATUTE. 

/4/  PERHAPS THIS WAS BECAUSE OF THE DIFFICULTY OF THE QUESTION
WHETHER GOGUEN'S CONDUCT CONSTITUTED PHYSICAL DESECRATION OF THE FLAG. 
CF. 471 F.2D, AT 91 N. 4 ("(WE ARE NOT SO SURE THAT SEWING A FLAG TO A
BACKGROUND CLEARLY AFFECTS 'PHYSICAL INTEGRITY'"). 

/5/  APP. 4. 

/6/  APPELLANT CORRECTLY CONCEDED AT ORAL ARGUMENT THAT GOGUEN'S
CASE IS THE FIRST RECORDED MASSACHUSETTS COURT READING OF THIS
LANGUAGE.  TR. OF ORAL ARG. 17 - 18.  INDEED, WITH THE EXCEPTION OF ONE
CASE AT THE TURN OF THE CENTURY INVOLVING ONE OF THE STATUTE'S
COMMERCIAL-MISUSE PROVISIONS, COMMONWEALTH V. R.I. SHERMAN MFG. CO.,
189 MASS. 76, 75 N.E. 71 (1905), THE ENTIRE STATUTE HAS BEEN
ESSENTIALLY DEVOID OF STATE COURT INTERPRETATION. 

/7/  THE ELEMENTS OF THE VOID-FOR-VAGUENESS DOCTRINE HAVE BEEN
DEVELOPED IN A LARGE BODY OF PRECEDENT FROM THIS COURT.  THE CASES ARE
CATEGORIZED IN, E.G., GRAYNED V. CITY OF ROCKFORD, 408 U.S. 104, 108 -
109 (1972).  SEE NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN THE SUPREME
COURT, 109 U.PA. L. REV. 67 (1960). 

/8/  E. G., PAPACHRISTOU V. CITY OF JACKSONVILLE, 405 U.S. 156, 162
(1972); LANZETTA V. NEW JERSEY, 306 J.S. 451, 453 (1939) (" NO ONE MAY
BE REQUIRED AT PERIL OF LIFE, LIBERTY OR PROPERTY TO SPECULATE AS TO
THE MEANING OF PENAL STATUTES.  ALL ARE ENTITLED TO BE INFORMED AS TO
WHAT THE STATE COMMANDS OR FORBIDS") (CITATIONS OMITTED); CONNALLY V.
GENERAL CONSTRUCTION CO., 269 U.S. 385, 391 (1926) ("(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") (CITATIONS OMITTED). 

/9/  E.G., GRAYNED, SUPRA, AT 108; UNITED STATES V. COHEN GROCERY
CO., 255 U.S. 81, 89 (1921) ("(TO ATTEMPT TO ENFORCE THE SECTION WOULD
BE THE EXACT EQUIVALENT OF AN EFFORT TO CARRY OUT A STATUTE WHICH IN
TERMS MERELY PENALIZED AND PUNISHED ALL ACTS DETRIMENTAL TO THE PUBLIC
INTEREST WHEN UNJUST AND UNREASONABLE IN THE ESTIMATION OF THE COURT
AND JURY") UNITED STATES V. REESE, 92 U.S. 214, 221 (1876) (" IT WOULD
CERTAINLY BE DANGEROUS IF THE LEGISLATURE COULD SET A NET LARGE ENOUGH
TO CATCH ALL POSSIBLE OFFENDERS, AND LEAVE IT TO THE COURTS TO STEP
INSIDE AND SAY WHO COULD BE RIGHTFULLY DETAINED, AND WHO SHOULD BE SET
AT LARGE"). 

/10/  E. G., GRAYNED, SUPRA, AT 1096; SMITH V. CALIFORNIA, 361 U.S.
147, 151 (1959).  COMPARE THE LESS STRINGENT REQUIREMENTS OF THE MODERN
VAGUENESS CASES DEALING WITH PURELY ECONOMIC REGULATION.  E.G., UNITED
STATES V. NATIONAL DAIRY PRODUCTS CORP., 372 U.S. 29 (1963) (ROBINSON
PATMAN ACT). 

/11/  SEE N. 6, SUPRA. 

/12/  NOTE, 66 MICH L. REV. 1040, 1056 (1968). 

/13/  343 F. SUPP. 161, 166. 

/14/  NOTE, 109 U. PA. L. REV., AT 82 N. 79. 

/15/  SEE N. 3, SUPRA. 

/16/  SEE N. 6, SUPRA.  THE CONTEMPT PORTION OF THE MASSACHUSETTS
STATUTE SEEMS TO HAVE LAIN FALLOW FOR ALMOST ITS ENTIRE HISTORY. 
APPARENTLY THERE HAVE BEEN ABOUT A HALF DOZEN ARRESTS UNDER THIS PART
OF THE STATUTE IN RECENT YEARS, BUT NONE HAS PRODUCED A REPORTED
DECISION.  TR. OF ORAL ARG. 28 - 29.  IN 1968, A TEENAGER IN LYNN,
MASSACHUSETTS, WAS CHARGED, APPARENTLY UNDER THE PRESENT STATUTE, WITH
DESECRATING THE UNITED STATES FLAG BY SEWING PIECES OF IT INTO HIS
TROUSERS.  NEW YORK TIMES, SEPT. 1, 1968, P. 31, COL. 1.  THE TEENAGER
WAS ORDERED BY A STATE DISTRICT COURT TO PREPARE AND DELIVER AN ESSAY
ON THE FLAG.  THE COURT CONTINUED THE CASE WITHOUT A FINDING, DEPRIVING
IT OF ANY PRECEDENTIAL VALUE. 

/17/  E.G., UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363
369 (1971). 

/18/  REPLY BRIEF FOR APPELLANT 4. 

/19/  GOGUEN FILED HIS FEDERAL HABEAS CORPUS PETITION SUBSEQUENT TO
PICARD V. CONNOR, 404 U.S. 270 (1971).  YET IT APPEARS THAT APPELLANT
DID NOT RAISE HIS PRESENT EXHAUSTION-OF-REMEDIES ARGUMENT BEFORE THE
DISTRICT COURT.  THAT COURT COMMENTED SPECIFICALLY ON THIS OMISSION:  "
NO CONTENTION IS NOW MADE THAT (GOGUEN) HAS NOT EXHAUSTED STATE
REMEDIES, NOR THAT THE CONSTITUTIONAL ISSUES PRESENTED HERE WERE NOT
RAISED APPROPRIATELY IN STATE PROCEEDINGS."  343 F. SUPP., AT 164. 

/20/  GOGUEN FILED IN STATE SUPERIOR COURT AN UNSUCCESSFUL MOTION TO
DISMISS THE COMPLAINT IN WHICH HE CITED THE FOURTEENTH AMENDMENT AND
ALLEGED THAT THE STATUTE UNDER WHICH HE WAS CHARGED WAS "IMPERMISSIBLY
VAGUE AND INCAPABLE OF FAIR AND REASONABLE INTERPRETATION BY PUBLIC
OFFICIALS."  APP. 1.  THIS MOTION WAS ALSO BEFORE THE MASSACHUSETTS
SUPREME JUDICIAL COURT, SINCE IT WAS INCORPORATED IN GOGUEN'S AMENDED
BILL OF EXCEPTIONS.  IBID.  IN ADDITION, GOGUEN'S BRIEF BEFORE THAT
COURT RAISED VAGUENESS POINTS AND CITED VAGUENESS CASES.  ID., AT 19,
26 - 27, CITING LANZETTA V. NEW JERSEY, 306 U.S. 451 (1939), AND PARKER
V. MORGAN, 322 F. SUPP. 585 (WDNC 1971) (THREE-JUDGE COURT) (NORTH
CAROLINA FLAG CONTEMPT STATUTE VOID FOR VAGUENESS AND OVERBREADTH). 
APPELLANT IS CORRECT IN ASSERTING THAT GOGUEN FAILED TO
COMPARTMENTALIZE IN HIS STATE COURT BRIEF THE DUE PROCESS DOCTRINE OF
VAGUENESS AND FIRST AMENDMENT CONCEPTS OF OVERBREADTH.  SEE APP. 19 -
24.  BUT PERMITTING A DEGREE OF LEAKAGE BETWEEN THOSE PARTICULAR
ADJOINING COMPARTMENTS IS UNDERSTANDABLE.  CF. NOTE, THE FIRST
AMENDMENT OVERBREADTH DOCTRINE, 83 HARV. L. REV. 844, 871 - 875
(1970).  THE HIGHEST STATE COURT'S OPINION, WHICH DEALT SEPARATELY WITH
GOGUEN'S FIRST AMENDMENT AND VAGUENESS CLAIMS, COMMONWEALTH V. GOGUEN,-
MASS.--, --, 279 N.E. 2D 666, 667 (1972), INDICATES THAT THAT COURT WAS
WELL AWARE THAT GOGUEN RAISED BOTH SETS OF ARGUMENTS. 

/21/  BRIEF FOR APPELLANT 17; TR. OF ORAL ARG. 9. 

/22/  IBID. 

/23/  IBID. 

/24/  AT THE TIME OF GOGUEN'S PROSECUTION, THE STATUTE REFERRED
SIMPLY TO "THE FLAG OF THE UNITED STATES . . . ," WITHOUT FURTHER
DEFINITION.  THAT RAISES THE OBVIOUS QUESTION WHETHER GOGUEN'S
MINIATURE CLOTH FLAG CONSTITUTED "THE FLAG OF THE UNITED STATES . . .
."  GOGUEN ARGUED UNSUCCESSFULLY BEFORE THE STATE COURTS THAT THE
STATUTE APPLIED ONLY TO FLAGS THAT MET "OFFICIAL STANDARDS" FOR
PROPORTIONS, SUCH AS RELATION OF HEIGHT TO WIDTH AND THE SIZE OF
STRIPES AND THE FIELD OF STARS, AND THAT THE CLOTH HE WORE DID NOT MEET
THOSE STANDARDS.  TR. OF ORAL ARG. 11 - 12, 24 - 26; APP. 2.  THERE WAS
NO DISPUTE THAT GOGUEN'S ADORNMENT HAD THE REQUISITE NUMBER OF STARS
AND STRIPES AND COLORS.  TR. OF ORAL ARG. 11 - 12.  THE MASSACHUSETTS
SUPREME JUDICIAL COURT FOUND GOGUEN'S CLOTH FLAG TO BE COVERED BY THE
STATUTE, NOTING THAT "(THE STATUTE DOES NOT REQUIRE THAT THE FLAG BE
'OFFICIAL,'" COMMONWEALTH V. GOGUEN,--MASS., AT--, 279 N.E. 2D, AT
668.  THE LOWER FEDERAL COURTS DID NOT ADDRESS THIS HOLDING, NOR DO WE.
WE NOTE ONLY THAT THE MASSACHUSETTS LEGISLATURE APPARENTLY SENSED AN
AMBIGUITY IN THIS RESPECT, BECAUSE SUBSEQUENT TO GOGUEN'S PROSECUTION
IT AMENDED THE STATUTE IN AN EFFORT TO DEFINE WHAT IT HAD MEANT BY THE
"FLAG OF THE UNITED STATES."  SEE N. 3, SUPRA.     /25/  TR. OF ORAL
ARG. 48. 

/26/  THE MASSACHUSETTS COURT COMMENTED SIMPLY THAT "(THE JURY COULD
INFER THAT THE VIOLATION WAS INTENTIONAL WITHOUT REVIEWING ANY WORDS OF
THE DEFENDANT."  COMMONWEALTH V. GOGUEN, SUPRA, AT--, 279 N.E. 2D, AT
668.  THUS, THE COURT HELD THAT THE JURY COULD INFER INTENT MERELY FROM
GROGUEN'S CONDUCT.  THIS IS APPARENTLY ALSO A HOLDING THAT THE JURY
MUST FIND CONTEMPTUOUS INTENT UNDER THE STATUTE, ALTHOUGH THE
REQUIREMENT AMOUNTS TO VERY LITTLE SINCE IT IS SO EASILY SATISFIED. 
THE COURT'S REFERENCE TO VERBAL COMMUNICATION REFLECTED GOGUEN'S
RELIANCE ON STREET V. NEW YORK, 394 U.S. 576 (1969). 

/27/  E. G., ASHTON V. KENTUCKY, 384 U.S. 195, 198 (1966). 

/28/  BRIEF FOR APPELLANT 22. 

/29/  WITH REGARD TO PROSECUTORIAL POLICIES, APPELLANT CITES TWO
PUBLISHED OPINIONS OF THE MASSACHUSETTS ATTORNEY GENERAL.  4 OP. ATTY.
GEN. 470 - 473 (1915) (REPRODUCED IN BRIEF FOR APPELLANT 30); REPORT OF
ATTY. GEN., PUB. DOC. NO. 12, P. 192 (1968) (REPRODUCED IN
JURISDICTIONAL STATEMENT APP. 53).  APPELLANT CONCEDES THAT NEITHER
DEALS WITH THE CONTEMPT PORTION OF THE STATUTE UNDER WHICH GOGUEN WAS
CONVICTED.  THUS, THEY ARE NOT IN POINT HERE.  THEY PROVIDED GUIDANCE
TO NO ONE ON THE RELEVANT STATUTORY LANGUAGE.  NEVERTHELESS, APPELLANT
IS CORRECT THAT THEY SHOW A TENDENCY ON THE PART OF THE STATE ATTORNEY
GENERAL TO READ OTHER PORTIONS OF THE STATUTE NARROWLY.  AT THE SAME
TIME, THEY REFLECT THE LACK OF PRECISION RECURRING THROUGHOUT THE
MASSACHUSETTS FLAG-MISUSE STATUTE.  THE 1915 OPINION NOTED THAT A
LITERAL READING OF ONE PORTION OF THE STATUTE, PROHIBITING EXHIBITION
OF ENGRAVINGS OF THE FLAG ON CERTAIN ARTICLES, WOULD MAKE IT A CRIMINAL
OFFENSE TO DISPLAY THE FLAG ITSELF "IN MANY OF ITS CHEAPER AND MORE
COMMON FORMS."  BRIEF FOR APPELLANT 31 - 32.  THE STATE ATTORNEY
GENERAL CONCLUDED THAT THIS WOULD BE A "MANIFEST ABSURDITY."  ID., AT
32.  THE 1968 OPINION ADVISED THAT A FLAG REPRESENTATION PAINTED ON A
DOOR WAS NOT "A FLAG OF THE UNITED STATES" WITHIN THE MEANING OF THE
STATUTE.  JURISDICTIONAL STATEMENT APP. 53 - 55.  A CONTRARY
INTERPRETATION WOULD "RAISE SERIOUS QUESTIONS UNDER THE FIRST AND
FOURTEENTH AMENDMENTS . . . ," GIVEN THE REQUIREMENT THAT BEHAVIOR MADE
CRIMINAL MUST BE "PLAINLY PROHIBITED BY THE LANGUAGE OF THE STATUTE." 
ID., AT 54. 

/30/  THE FEDERAL FLAG DESECRATION STATUTE, FOR EXAMPLE, REFLECTS A
CONGRESSIONAL PURPOSE TO DO JUST THAT.  IN RESPONSE TO A WARNING BY THE
UNITED STATES ATTORNEY GENERAL THAT TO USE SUCH UNBOUNDED TERMS AS
"DEFIES" OR "CASTS CONTEMPT . . . EITHER BY WORD OR ACT" IS "TO RISK
INVALIDATION" ON VAGUENESS GROUNDS, S. REP. NO. 1287, 90TH CONG., 1ST
SESS., 5 (1968); H.R. REP. NO. 350, 90TH CONG., 1ST SESS., 7 (1967),
THE BILL WHICH BECAME THE FEDERAL STATUTE WAS AMENDED, 113 CONG. REC.
16449, 16450 (1967), TO REACH ONLY ACTS THAT PHYSICALLY DAMAGE THE
FLAG.  THE DESECRATION PROVISION OF THE STATUTE, 18 U.S.C. 700(A),
DECLARES: 

"(A) WHOEVER KNOWINGLY CASTS CONTEMPT UPON ANY FLAG OF THE UNITED
STATES BY PUBLICLY MUTILATING, DEFACING, DEFILING, BURNING, OR
TRAMPLING UPON IT SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED FOR
NOT MORE THAN ONE YEAR, OR BOTH."  THE LEGISLATIVE HISTORY REVEALS A
CLEAR DESIRE TO REACH ONLY DEFINED PHYSICAL ACTS OF DESECRATION.  ("
THE LANGUAGE OF THE BILL PROHIBITS INTENTIONAL, WILLFUL, NOT ACCIDENTAL
OR INADVERTENT PUBLIC PHYSICAL ACTS OF DESECRATION OF THE FLAG.")  H.R.
REP. NO. 350, SUPRA, AT 3; S. REP. NO. 1287, SUPRA, AT 3.  THE ACT HAS
BEEN SO READ BY THE LOWER FEDERAL COURTS, WHICH HAVE UPHELD IT AGAINST
VAGUENESS CHALLENGES.  UNITED STATES V. CROSSON, 462 F.2D 96 (CA9)
CERT. DENIED, 409 U.S. 1064 (1972); JOYCE V. UNITED STATES, 147 U.S.
APP. D.C. 128, 454 F.2D 971 (1971), CERT DENIED, 405 U.SE. 969 (1972). 
SEE HOFFMAN V. UNITED STATES, 144 U.S. APP. D.C. 156, 445 F.2D 226
(1971). 

/31/  WE ARE AWARE, OF COURSE, OF THE UNIVERSAL ADOPTION OF FLAG
DESECRATION OR CONTEMPT STATUTES BY THE FEDERAL AND STATE GOVERNMENTS. 
SEE N. 30, SUPRA. THE STATUTES OF THE 50 STATES ARE SYNOPSIZED IN
HEARINGS ON H.R. 271 ET AL., BEFORE SUBCOMMITTEE NO. 4 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 90TH CONG., 1ST SESS., SER.  4, PP. 324 -
346 (1967).  MOST OF THE STATE STATUTES ARE PATTERNED AFTER THE UNIFORM
FLAG LAW OF 1917, WHICH IN 3 PROVIDES THAT: 

" NO PERSON SHALL PUBLICLY MUTILATE, DEFACE, DEFILE, DEFY, TRAMPLE
UPON, OR BY WORD OR ACT CAST CONTEMPT UPON ANY SUCH FLAG, STANDARD,
COLOR, ENSIGN OR SHIELD."  COMPARE 9 B UNIFORM LAWS ANN. 52 - 53
(1966), WITH HEARINGS ON H.R. 271 ET AL., SUPRA, AT 321 - 346.  BECAUSE
IT IS STATED IN THE DISJUNCTIVE, THIS LANGUAGE, LIKE THAT BEFORE US,
MAKES POSSIBLE CRIMINAL PROSECUTION SOLELY FOR CASTING CONTEMPT UPON
THE FLAG.  BUT THE VALIDITY OF STATUTES UTILIZING THIS LANGUAGE,
INSOFAR AS THE VAGUENESS DOCTRINE IS CONCERNED, WILL DEPEND AS MUCH ON
THEIR JUDICIAL CONSTRUCTION AND ENFORCEMENT HISTORY AS THEIR LITERAL
TERMS. 

/32/  WE HAVE NOT ADDRESSED GOGUEN'S FIRST AMENDMENT ARGUMENTS
BECAUSE, HAVING FOUND THE CHALLENGED STATUTORY LANGUAGE VOID FOR
VAGUENESS, THERE IS NO NEED TO DECIDE ADDITIONAL ISSUES.  MOREOVER, THE
SKELETAL RECORD IN THIS CASE, SEE N. 1, SUPRA, AFFORDS A POOR
OPPORTUNITY FOR THE CAREFUL CONSIDERATION MERITED BY THE IMPORTANCE OF
THE FIRST AMENDMENT ISSUES GOGUEN HAS RAISED. 

MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT. 

IT IS A CRIME IN MASSACHUSETTS IF ONE MUTILATES, TRAMPLES, DEFACES
OR "TREATS CONTEMPTUOUSLY" THE FLAG OF THE UNITED STATES.  APPELLEE
GOGUEN WAS CONVICTED OF TREATING THE FLAG CONTEMPTUOUSLY, THE EVIDENCE
BEING THAT HE WORE A LIKENESS OF THE FLAG ON THE SEAT OF HIS PANTS. 
THE COURT HOLDS THIS PORTION OF THE STATUTE TOO VAGUE TO PROVIDE AN
ASCERTAINABLE STANDARD OF GUILT IN ANY SITUATION, INCLUDING THIS ONE. 
ALTHOUGH I CONCUR IN THE JUDGMENT OF AFFIRMANCE FOR OTHER REASONS, I
CANNOT AGREE WITH THIS RATIONALE.  /1/

        I 

IT IS SELF-EVIDENT THAT THERE IS A WHOLE RANGE OF CONDUCT THAT
ANYONE WITH AT LEAST A SEMBLANCE OF COMMON SENSE WOULD KNOW IS
CONTEMPTUOUS CONDUCT AND THAT WOULD BE COVERED BY THE STATUTE IF
DIRECTED AT THE FLAG.  IN THESE INSTANCES, THERE WOULD BE AMPLE NOTICE
TO THE ACTOR AND NO ROOM FOR UNDUE DISCRETION BY ENFORCEMENT OFFICERS. 
THERE MAY BE A VARIETY OF OTHER CONDUCT THAT MIGHT OR MIGHT NOT BE
CLAIMED CONTEMPTUOUS BY THE STATE, BUT UNPREDICTABILITY IN THOSE
SITUATIONS DOES NOT CHANGE THE CERTAINTY IN OTHERS. 

I AM ALSO CONFIDENT THAT THE STATUTE WAS NOT VAGUE WITH RESPECT TO
THE CONDUCT FOR WHICH GOGUEN WAS ARRESTED AND CONVICTED.  IT SHOULD NOT
BE BEYOND THE REASONABLE COMPREHENSION OF ANYONE WHO WOULD CONFORM HIS
CONDUCT TO THE LAW TO REALIZE THAT SEWING A FLAG ON THE SEAT OF HIS
PANTS IS CONTEMPTUOUS OF THE FLAG.  THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS, IN AFFIRMING THE CONVICTION, STATED THAT THE "JURY COULD
INFER THAT THE VIOLATION WAS INTENTIONAL . . . ."  IF HE THUS INTENDED
THE VERY ACT WHICH THE STATUTE FORBIDS, GOGUEN CAN HARDLY COMPLAIN THAT
HE DID NOT REALIZE HIS ACTS WERE IN VIOLATION OF THE STATUTE.  "(THE
REQUIREMENT OF A SPECIFIC INTENT TO DO A PROHIBITED ACT MAY AVOID THOSE
CONSEQUENCES TO THE ACCUSED WHICH MAY OTHERWISE RENDER A VAGUE OR
INDEFINITE STATUTE INVALID.  . . . (WHERE THE PUNISHMENT IMPOSED IS
ONLY FOR AN ACT KNOWINGLY DONE WITH THE PURPOSE OF DOING THAT WHICH THE
STATUTE PROHIBITS, THE ACCUSED CANNOT BE SAID TO SUFFER FROM LACK OF
WARNING OR KNOWLEDGE THAT THE ACT WHICH HE DOES IS A VIOLATION OF
LAW."  SCREWS V. UNITED STATES, 325 U.S. 91, 101 - 102 (1945). 

IF IT BE ARGUED THAT THE STATUTE IN THIS CASE MERELY REQUIRES AN
INTENTIONAL ACT, NOT A WILLFUL ONE IN THE SENSE OF INTENDING WHAT THE
STATUTE FORBIDS, THEN IT MUST BE RECALLED THAT APPELLEE'S MAJOR
ARGUMENT IS THAT WEARING A FLAG PATCH ON HIS TROUSERS WAS CONDUCT THAT
"CLEARLY EXPRESSED AN IDEA, ALBEIT UNPOPULAR OR UNPATRIOTIC, ABOUT THE
FLAG OR ABOUT THE COUNTRY IT SYMBOLIZES . . . . GOGUEN MAY HAVE MEANT
TO SHOW THAT HE BELIEVED THAT AMERICA WAS A FIT PLACE ONLY TO SIT ON,
OR THE PROXIMITY TO THAT PORTION OF HIS ANATOMY MIGHT HAVE HAD MORE
VULGAR CONNOTATIONS.  NONETHELESS, THE STRONG AND FORCEFUL
COMMUNICATION OF IDEAS IS UNMISTAKABLE."  APP. 13.  GOGUEN WAS UNDER NO
MISAPPREHENSION AS TO WHAT HE WAS DOING AND AS TO WHETHER HE WAS
SHOWING CONTEMPT FOR THE FLAG OF THE UNITED STATES.  AS HE ACKNOWLEDGES
IN HIS BRIEF HERE, "IT WAS NECESSARY FOR THE JURY TO FIND THAT APPELLEE
CONVEYED A CONTEMPTUOUS ATTITUDE IN ORDER TO CONVICT HIM."  I CANNOT,
THEREFORE, AGREE THAT THE MASSACHUSETTS STATUTE IS VAGUE AS TO GOGUEN;
AND IF NOT VAGUE AS TO HIS CONDUCT, IT IS IRRELEVANT THAT IT MAY BE
VAGUE IN OTHER CONTEXTS WITH RESPECT TO OTHER CONDUCT.  "IN DETERMINING
THE SUFFICIENCY OF THE NOTICE A STATUTE MUST OF NECESSITY BE EXAMINED
IN THE LIGHT OF THE CONDUCT WITH WHICH A DEFENDANT IS CHARGED."  UNITED
STATES V. NATIONAL DAIRY PRODUCTS CORP., 372 U.S. 29, 33 (1963). 
STATUTES ARE NOT "INVALIDATED AS VAGUE SIMPLY BECAUSE DIFFICULTY IS
FOUND IN DETERMINING WHETHER CERTAIN MARGINAL OFFENSES FALL WITHIN
THEIR LANGUAGE."  ID., AT 32. 

THE UNAVOIDABLE INQUIRY, THEREFORE BECOMES WHETHER THE "TREATS
CONTEMPTUOUSLY" PROVISION OF THE STATUTE, AS APPLIED IN THIS CASE, IS
UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT.  THAT AMENDMENT, OF COURSE,
APPLIES TO SPEECH AND NOT TO CONDUCT WITHOUT SUBSTANTIAL COMMUNICATIVE
INTENT AND IMPACT.  EVEN THOUGH PARTICULAR CONDUCT MAY BE EXPRESSIVE
AND IS UNDERSTOOD TO BE OF THIS NATURE, IT MAY BE PROHIBITED IF
NECESSARY TO FURTHER A NONSPEECH INTEREST OF THE GOVERNMENT THAT IS
WITHIN THE POWER OF THE GOVERNMENT TO IMPLEMENT.  UNITED STATES V. O'
BRIEN, 391 U.S. 367 (1968). 

THERE IS NO DOUBT IN MY MIND THAT IT IS WELL WITHIN THE POWERS OF
CONGRESS TO ADOPT AND PRESCRIBE A NATIONAL FLAG AND TO PROTECT THE
INTEGRITY OF THAT FLAG.  CONGRESS MAY PROVIDE FOR THE GENERAL WELFARE,
CONTROL INTERSTATE COMMERCE, PROVIDE FOR THE COMMON DEFENSE AND
EXERCISE ANY POWERS NECESSARY AND PROPER FOR THOSE ENDS.  THESE POWERS,
AND THE INHERENT ATTRIBUTES OF SOVEREIGNTY AS WELL, SURLEY ENCOMPASS
THE DESIGNATION AND PROTECTION OF A FLAG.  IT WOULD BE FOOLISHNESS TO
SUGGEST THAT THE MEN WHO WROTE THE CONSTITUTION THOUGHT THEY WERE
VIOLATING IT WHEN THEY SPECIFIED A FLAG FOR THE NEW NATION, ACT OF JAN.
13, 1794, 1 STAT. 341, C. 1, JUST AS THEY HAD FOR THE UNION UNDER THE
ARTICLES OF CONFEDERATION.  8 JOURNALS OF THE CONTINENTAL CONGRESS 464
(JUNE 14, 1777).  IT IS A FACT OF HISTORY THAT FLAGS HAVE BEEN
ASSOCIATED WITH NATIONS AND WITH GOVERNMENT AT ALL LEVELS, AS WELL AS
WITH TRIBES AND FAMILIES.  IT IS ALSO A HISTORICAL FACT THAT FLAGS,
INCLUDING OURS, HAVE PLAYED AN IMPORTANT AND USEFUL ROLE IN HUMAN
AFFAIRS.  ONE NEED NOT EXPLAIN FULLY A PHENOMENON TO RECOGNIZE ITS
EXISTENCE AND IN THIS CASE TO CONCEDE THAT THE FLAG IS AN IMPORTANT
SYMBOL OF NATIONHOOD AND UNITY, CREATED BY THE NATION AND ENDOWED WITH
CERTAIN ATTRIBUTES.  CONCEIVED IN THIS LIGHT, I HAVE NO DOUBT ABOUT THE
VALIDITY OF LAWS DESIGNATING AND DESCRIBING THE FLAG AND REGULATING ITS
USE, DISPLAY, AND DISPOSITION.  THE UNITED STATES HAS CREATED ITS OWN
FLAG, AS IT MAY.  THE FLAG IS A NATIONAL PROPERTY, AND THE NATION MAY
REGULATE THOSE WHO WOULD MAKE, IMITATE, SELL, POSSESS, OR USE IT. 

I WOULD NOT QUESTION THOSE STATUTES WHICH PROSCRIBE MUTILATION,
DEFACEMENT, OR BURNING OF THE FLAG OR WHICH OTHERWISE PROTECT ITS
PHYSICAL INTEGRITY, WITHOUT REGARD TO WHETHER SUCH CONDUCT MIGHT
PROVOKE VIOLENCE.  NEITHER WOULD I FIND IT BEYOND CONGRESSIONAL POWER,
OR THAT OF STATE LEGISLATURES, TO FORBID ATTACHING TO OR PUTTING ON THE
FLAG ANY WORDS, SYMBOLS, OR ADVERTISEMENTS.  /2/  ALL OF THESE OBJECTS,
WHATEVER THEIR NATURE, ARE FOREIGN TO THE FLAG, CHANGE ITS PHYSICAL
CHARACTER, AND INTERFERE WITH ITS DESIGN AND FUNCTION.  THERE WOULD
SEEM TO BE LITTLE QUESTION ABOUT THE POWER OF CONGRESS TO FORBID THE
MUTILATION OF THE LINCOLN MEMORIAL OR TO PREVENT OVERLAYING IT WITH
WORDS OR OTHER OBJECTS.  THE FLAG IS ITSELF A MONUMENT, SUBJECT TO
SIMILAR PROTECTION. 

        II 

I WOULD AFFIRM GOGUEN'S CONVICTION, THEREFORE, HAD HE BEEN CONVICTED
FOR MUTILATING, TRAMPLING UPON, OR DEFACING THE FLAG, OR FOR USING THE
FLAG AS A BILLBOARD FOR COMMERCIAL ADVERTISEMENTS OR OTHER DISPLAYS. 
THE MASSACHUSETTS STATUTE, HOWEVER, DOES NOT STOP WITH PROSCRIPTIONS
AGAINST DEFACEMENT OR ATTACHING FOREIGN OBJECTS TO THE FLAG.  IT ALSO
MAKES IT A CRIME IF ONE "TREATS CONTEMPTUOUSLY"  THE FLAG OF THE UNITED
STATES, AND GOGUEN WAS CONVICTED UNDER THIS PART OF THE STAUTE.  TO
VIOLATE THE STATUTE IN THIS RESPECT, IT IS NOT ENOUGH THAT ONE "TREAT"
THE FLAG; HE MUST ALSO TREAT IT "CONTEMPTUOUSLY,"  WHICH, IN ORDINARY
UNDERSTANDING, IS THE EXPRESSION OF CONTEMPT FOR THE FLAG.  IN THE CASE
BEFORE US, AS HAS BEEN NOTED, THE JURY MUST HAVE FOUND THAT GOGUEN NOT
ONLY WORE THE FLAG ON THE SEAT OF HIS PANTS BUT ALSO THAT THE ACT--,
AND HENCE GOGEUN HIMSELF--, WAS COMTEMPTUOUS OF THE FLAG.  TO CONVICT
ON THIS BASIS IS TO CONVICE NOT TO PROTECT THE PHYSICAL INTEGRITY OR TO
PROTECT AGAINST ACTS INTERFERING WITH THE PROPER USE OF THE FLAG, BUT
TO PUNISH FOR COMMUNICATING IDEAS ABOUT THE FLAG UNACCEPTABLE TO THE
CONTROLLING MAJORITY IN THE LEGISLATURE.  /3/

NEITHER THE UNITED STATES NOT ANY STATE MAY REQUIRE ANY INDIVIDUAL
TO SALUTE OR EXPRESS FAVORABLE ATTITUDES TOWARD THE FLAG.  WEST
VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624 (1943).  IT IS
ALSO CLEAR UNDER OUR CASES THAT DISRESPECTFUL OR CONTEMPTUOUS SPOKEN OR
WRITTEN WORDS ABOUT THE FLAG MAY NOT BE PUNISHED CONSISTENTLY WITH THE
FIRST AMENDMENT.  STREET V. NEW YORK, 394 U.S. 576 (1969).  ALTHOUGH
NEITHER WRITTEN NOR SPOKEN, AN ACT MAY BE SUFFICIENTLY COMMUNICATIVE TO
INVOKE THE PROTECTION OF THE FIRST AMENDMENT, TINKER V. DES.  MOINES
INDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S. 503 (19669), AND MAY
NOT BE FORBIDDEN BY LAW EXCEPT WHEN INCIDENTAL TO PREVENTING
UNPROTECTED CONDUCT OR UNLESS THE COMMUNICATION IS ITSELF AMONG THOSE
THAT FALL OUTSIDE THE PROTECTION OF THE FIRST AMENDMENT.  IN O' BRIEN,
SUPRA, THE COURT SUSTAINED A CONVICTION FOR DRAFT CARD BURNING,
ALTHOUGH ADMITTEDLY THE BURNING WAS ITSELF EXPRESSIVE.  THERE,
DESTRUCTION OF DRAFT CARDS, WHETHER COMMUNICATIVE OR NOT, WAS FOUND TO
BE INIMICAL TO IMPORTANT GOVERNMENTAL CONSIDERATIONS.  BUT THE COURT
MADE CLEAR THAT IF THE CONCERN OF THE LAW WAS WITH THE EXPRESSION
ASSOCIATED WITH THE ACT, THE RESULT WOULD BE OTHERWISE: 

     " THE CASE AT BAR IS THEREFORE UNLIKE ONE WHERE THE ALLEGED

  GOVERNMENTAL INTEREST IN REGULATING CONDUCT ARISES IN SOME

  MEASURE BECAUSE THE COMMUNICATION ALLEGEDLY INTEGRAL TO THE

  CONDUCT IS ITSELF THOUGHT TO BE HARMFUL.  IN STROMBERG V.

  CALIFORNIA, 283 U.S. 359 (1931), FOR EXAMPLE, THIS COURT STRUCK

  DOWN A STATUTORY PHRASE WHICH PUNISHED PEOPLE WHO EXPRESSED THEIR

  'OPPOSITION TO ORGANIZED GOVERNMENT'  BY DISPLAYING 'ANY FLAG,

BADGE, BANNER, OR DEVICE.'  SINCE THE STATUTE THERE WAS AIMED AT

  SUPPRESSING COMMUNICATION IT COULD NOT BE SUSTAINED AS A

  REGULATION OF NONCOMMUNICATIVE CONDUCT."  391 U.S. AT 382. 

IT WOULD BE DIFFICULT, THEREFORE, TO BELIEVE THAT THE CONVICTION IN O'
BRIEN WOULD HAVE BEEN SUSTAINED HAD THE STATUTE PROSCRIBED ONLY
CONTEMPTTUOUS BURNING OF DRAFT CARDS. 

ANY CONVICTION UNDER THE "TREATS CONTEMPTUOUSLY"  PROVISION OF THE
MASSACHUSETTS STATUTE WOULD SUFFER FROM THE SAME INFIRMITY.  THIS IS
TRUE OF GOGUEN'S CONVICTION.  AND IF IT BE SAID THAT THE CONVICTION
DOES NOT VIOLATE THE FIRST AND FOURTEENTH AMENDMENTS BECAUSE GOGUEN
COMMUNICATED NOTHING AT ALL BY HIS CONDUCT AND DID NOT INTEND TO DO SO,
THERE WOULD THEN BE NO EVIDENTIARY BASIS WHATSOEVER FOR CONVICTING HIM
OF BEING "CONTEMPTUOUS"  OF THE FLAG.  I CONCUR IN THE COURT'S
JUDGMENT. 

/1/  THERE HAS BEEN RECURRING LITIGATION, WITH DIVERSE RESULTS, OVER
THE VALIDITY OF FLAG USE AND FLAG DESECRATION STATUTES.  REPRESENTATIVE
OF THE FEDERAL AND STATE CASES ARE THE FOLLOWING:  THOMAS V. HEFFERMAN,
473 F.2D 478 (CA2 1973); LONG ISLAND VIETNAM MORATORIUM COMMITTEE V.
CAHN, 437 F.2D 344 (CA2 1970); UNITED STATES V. CROSSON, 462 F.2D 96
(CA9), CERT. DENIED, 409 U.S. 1064 (1972); JOYCE V. UNITED STATES, 147
U.S. APP. D.C. 128, 454 F. 2D 971 (1971) CERT, DENIED, 405 U.S. 969
(1972); DEED.  V. BETO, 353 F. SUPP. 840 (ND TEX. 1973); OLDROYD V.
KUGLER, 327 F. SUPP. 176 (NJ 1970), REV'D, 461 F. 2D 535 (CA3 1972),
ABSTENTION ON REMAND, 352 F. SUPP. 27, AFF'D, 412 U.S. 924 (1973);
SUTHERLAND V. DE WULF, 323 F. SUPP. 740 (SD ILL. 1971); PARKER V.
MORGAN, 322 F. SUPP. 585 (WDNC 1971); CROSSON V. SILVER, 319 F. SUPP.
1084 (ARIZ.) 1970); HODSDON V. BUCKSON, 310 F. SUPP. 528 (DEL. 1970),
RED'D ON OTHER GROUNDS SUB NOM HODSDON V. STABLER, 444 F.2D 533 (CA3
1971); UNITED STATES V. FERGUSON, 302 F. SUPP. 1111 (ND CAL. 1969);
STATE V. ROYAL, 113 N.H. 224, 305 A. 2D 676 (1973); STATE V. ZIMMELMAN,
62 N.J. 279, 301 A 2D 129 (1973); STATE V. SPENCE, 81 WASH. 2D 788, 506
P.2D 293, PROBABLE JURISDICTION NOTED, 414 U.S. 815 (1973) (SUB
JUDICE); CITY OF MIAMI V. WOLFENBERGER, 265 SO. 2D 732 (FLA. DIST. CT
APP. 1972); STATE V. MITCHELL, 32 OHIO APP. 2D 317, 291 N.E. 2D 498
(1971); STATE V. VAN CAMP, 6 CONN. CIR. 609, 281 A.2D 584 (1971); STATE
V. WATERMAN, 190 N.W. 2D 809 (IOWA 1971); STATE V. SAULINO, 29 OHIO
MISC. 25, 277 N.E. 2D 580 (1971); DEEDS V. STATE, 474 S.W. 2D 718
(CRIM. APP. TEX. 1971); PEOPLE V. RADICH, 26 N.Y. 2D 114, 247 N.E. 2D
30 (1970), AFF'D BY AN EQUALLY DIVIDED COURT, 401 U.S. 531, REHEARING
DENIED, 402 U.S. 989 (1971):  PEOPLE V. COWGILL, 274 CAL. APP. 2D 923,
78 CAL. RPTR.  853 (1969), APPEAL DISMISSED 396 U.S. 371 (1970); HINTON
V. STATE, 223 GA. 174, 154 S.E. 2D 246 (1967), REV'D ON OTHER GROUNDS
SUB NOM. ANDERSON V. GEORGIA, 390 U.S. 206 (1968). 

/2/  FOR A TREATMENT OF STATUTES PROTECTIVE OF THE FLAG, SEE
ROSENBLATT, FLAG DESECRATION STATUTES:  HISTORY AND ANALYSIS, 1972
WASH. U.L.Q. 193. 

/3/ MASSACHUSETTS HAS NOT CONSTRUED ITS STATUTE TO ELIMINATE THE
COMMUNICATIVE ASPECT OF THE PROSCRIBED CONDUCT AS A CRUCIAL ELEMENT OF
THE VIOLATION.  IN STATE V. ROYAL, 113 N.H. 224, 305 A. 2D 676 (1973),
THE NEW HAMPSHIRE SUPREME COURT, NOTING AMONG OTHER THINGS THAT THE
STATE HAS A VALID INTEREST IN THE PHYSICAL INTEGRITY OF THE FLAG,
REJECTED A FACIAL ATTACK ON ITS FLAG DESECRATION STATUTE, WHICH MADE IT
A CRIME TO PUBLICLY MUTILATE, TRAMPLE UPON, DEFILE, DEFACE, OR CAST
CONTEMPT UPON THE FLAG.  THE COURT CONSTRUED ITS STATUTE TO BE
"DIRECTED AT ACTS UPON THE FLAG AND NOT 'AT THE EXPRESSION OF AND MERE
BELIEF IN PARTICULAR IDEAS.'"  ID., AT 230, 305 A. 2D, AT 680.  THE
PROSCRIPTION AGAINST CASTING CONTEMPT UPON THE FLAG WAS TO BE
UNDERSTOOD AS A GENERAL PROHIBITION OF ACTS OF THE SAME NATURE AS THE
PREVIOUSLY FORBIDDEN ACTS OF MUTILATION AND DEFACEMENT, NOT AS A
PROSCRIPTION OF THE EXPRESSION OF IDEAS.  THUS: 

OUR STATUTE IS MORE NARROWLY DRAWN THAN SOME FLAG STATUTES.  IT
DEALS ONLY WITH THE FLAG ITSELF OR ANY 'FLAG OR ENSIGN EDIDENTLY
PURPORTING TO BE' THE FLAG.  STATE V. CLINE, (113 N.H. 245), 305 A. 2D
673, DECIDED THIS DATE.  ALSO, AS WE CONSTRUE IT, OUR STATUTE PROHIBITS
ONLY ACTS OF MUTILATION AND DEFILEMENT INFLICTED DIRECTLY UPON THE FLAG
ITSELF AND DOES NOT PROHIBIT ACTS WHICH ARE DIRECTED AT THE FLAG
WITHOUT TOUCHING IT.  THE STATUTE ENUMERATES SPECIFIC ACTS OF FLAG
DESECRATION, NAMELY 'MUTILATE, TRAMPLE UPON, DEFILE, DEFACE,' ALL OF
WHICH INVOLVE PHYSICAL ACTS UPON THE FLAG.  THE GENERAL TERM 'CAST
CONTEMPT'  FOLLOWOS THESE ENUMERATED SPECIFIC ACTS.  WE HOLD THAT THE
PHRASE 'OR CAST CONTEMPT BY . . . ACTS' AS USED IN RSA 573:4 IS LIMITED
TO PHYSICAL ABUSE TYPE OF ACTS SIMILAR TO THOSE PREVIOUSLY ENUMERATED
IN THE STATUTE.  2 SUTHERLAND, STATUTORY CONSTRUCTION 4909 (3D REV. ED.
HORACK 1943); STATE V. SMALL, 99 N.H. 349, 111 A. 2D 201 (1955); STATE
N. NH. GAS & ELECTRIC CO., 86 N.H. 16, 163 A. 724 (1932)."  ID., AT
227, 305 A. 2D, AT 679. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE JOINS,
DISSENTING. 

I AGREE WITH MR. JUSTICE WHITE IN HIS CONCLUSION THAT THE
MASSACHUSETTS FLAG STATUTE IS NOT UNCONSTITUTIONALLY VAGUE.  I DISAGREE
WITH HIS CONCLUSION THAT THE WORDS "TREATS CONTEMPTUOUSLY" ARE
NECESSARILY DIRECTED AT PROTECTED SPEECH AND THAT GOGUEN'S CONVICTION
FOR HIS IMMATURE ANTIC THEREFORE CANNOT WITHSTAND CONSTITUTIONAL
CHALLENGE. 

I AGREE WITH MR. JUSTICE REHNQUIST WHEN HE CONCLUDES THAT THE FIRST
AMENDMENT AFFORDS NO SHIELD TO GOGUEN'S CONDUCT.  I REACH THAT RESULT,
HOWEVER, NOT ON THE GROUND THAT THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS "WOULD READ" THE LANGUAGE OF THE MASSACHUSETTS STATUTE TO
REQUIRE THAT "TREATS CONTEMPTUOUSLY" ENTAILS PHYSICAL CONTACT WITH THE
FLAG AND THE PROTECTION OF ITS PHYSICAL INTEGRITY, BUT ON THE GROUND
THAT THAT COURT, BY ITS UNANIMOUS RESCRIPT OPINION, HAS IN FACT ALREADY
DONE EXACTLY THAT.  THE COURT'S OPINION STATES THAT GOGUEN "WAS NOT
PROSECUTED FOR BEING 'INTELLECTUALLY . . . DIVERSE'  OR FOR 'SPEECH,'
AS IN STREET V. NEW YORK, 394 U.S. 576, 593 - 594 . . . ."  HAVING
REJECTED THE VAGUENESS CHALLENGE AND CONCLUDED THAT GOGUEN WAS NOT
PUNISHED FOR SPEECH, THE MASSACHUSETTS COURT, IN UPHOLDING THE
CONVICTION, HAS NECESSARILY LIMITED THE SCOPE OF THE STATUTE TO
PROTECTING THE PHYSICAL INTEGRITY OF THE FLAG.  THE REQUISITE FOR
"TREATING CONTEMPTUOUSLY" WAS FOUND AND THE COURT CONCLUDED THAT
PUNISHMENT WAS NOT FOR SPEECH--, A COMMUNICATIVE ELEMENT.  I, THEREFORE
MUST CONCLUDE THAT GOGUEN'S PUNISHMENT WAS CONSTITUTIONALLY PERMISSIBLE
FOR HARMING THE PHYSICAL INTEGRITY OF THE FLAG BY WEARING IT AFFIXED TO
THE SEAT OF HIS PANTS.  I ACCEPT THE MASSACHUSETTS COURT'S OPINION AT
WHAT I REGARD TO BE ITS FACE VALUE. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE JOINS,
DISSENTING. 

I AGREE WITH THE CONCURRING OPINION OF MY BROTHER WHITE INSOFAR AS
HE CONCLUDES THAT THE MASSACHUSETTS LAW IS NOT UNCONSTTITUTIONALLY
VAGUE, BUT I DO NOT AGREE WITH HIM THAT THE LAW UNDER WHICH APPELLEE
GOGUEN WAS CONVICTED VIOLATED THE FIRST AND FOURTEENTH AMENDMENTS.  THE
ISSUE OF THE APPLICATION OF THE FIRST AMENDMENT TO EXPRESSIVE CONDUCT,
OR "SYMBOLIC SPEECH," IS UNDOUBTDLY A DIFFICULT ONE, AND IN CASES
DEALING WITH THE UNITED STATES FLAG IT HAS UNFORTUNATELY BEEN EXPOUNDED
ONLY IN DISSENTS AND CONCURRENCES.  V. NEW YORK, 394 U.S. 576, 594
(1969) (WARREN, C.J., DISSENTING), 609 (BLACK, J., DISSENTING), 610
(WHITE, J., DISSENTING), 6 5 (FORTAS, J., DISSENTING); AND COWGIL V.
CALIFORNIA, 396 U.S. 371 (1970) (HARLAN, J., CONCURRING).  NONETHELESS,
SINCE I DISAGREE WITH THE COURT'S CONCLUSION THAT THE STATUTE IS
UNCONSTITUTIONALLY VAGUE, I MUST, UNLIKE THE COURT, ADDRESS APPELLANT'S
FIRST AMENDMENT CONTENTIONS. 

THE QUESTION WHETHER THE STATE MAY REGULATE THE DISPLAY OF THE FLAG
IN THE CIRCUMSTANCES SHOWN BY THIS RECORD APPEARS TO BE AN OPEN ONE
UNDER OUR DECISIONS.  HALTER V. NEBRASKA, 205 U.S. 34 (1907); STREET V.
NEW YORK, SUPRA; COWGILL V. CALIFORNIA, SUPRA (HARLAN, J., CONCURRING);
PEOPLE V. RADICH, 26 N.Y. 2D 114, 257 N.E. 2D 30, AFF'D BY AN EQUALLY
DIVIDED COURT, 401 U.S. 531 (1971). 

WHAT THE COURT FIGHTLY DESCRIBES AS "THE SLENDER RECORD IN THIS
CASE," ANTE, AT 568, SHOWS ONLY THAT GOGUEN WORE A SMALL CLOTH VERSION
OF THE UNITED STATES FLAG SEWN TO THE SEAT OF HIS BLUE JEANS.  WHEN THE
FIRST POLICE OFFICER QUESTIONED HIM, HE WAS STANDING WITH A GROUP OF
PEOPLE ON MAIN STREET IN LEOMINSTER, MASSACHUSETTS.  THE PEOPLE WITH
HIM WERE LAUGHING.  WHEN THE SECOND POLICE OFFICER SAW HIM, HE WAS
"WALKING IN THE DOWNTOWN BUSINESS DISTRICT OF LEOMINSTER, WEARING A
SHORT COAT, CASUAL TYPE PANTS AND A MINIATURE AMERICAN FLAG SEWN ON THE
LEFT SIDE OF HIS PANTS."  GOGUEN DID NOT TESTIFY, AND THERE IS NOTHING
IN THE RECORD BEFORE US TO INDICATE WHAT HE WAS ATTEMPTING TO
COMMUNICATE BY HIS CONDUCT, OR, INDEED, WHETHER HE WAS ATTEMPTING TO
COMMUNICATE ANYTHING AT ALL.  THE RECORD BEFORE US DOES NOT EVEN
CONCLUSIVELY REVEAL WHETHER GOGUEN SEWED THE FLAG ON THE PANTS HIMSELF,
OR WHETHER THE PANTS WERE MANUFACTURED COMPLETE WITH FLAG; HIS COUNSEL
HERE, HOWEVER, WHO WAS ALSO HIS TRIAL COUNSEL, STATED IN ORAL ARGUMENT
THAT OF HIS OWN KNOWLEDGE THE PANTS WERE NOT MANUFACTURED WITH THE FLAG
ON THEM.  FINALLY, IT DOES NOT APPEAR WHETHER APPELLEE SAID ANYTHING
DURING HIS JOURNEY THROUGH THE STREETS OF LEOMINSTER; HIS AMENDED BILL
OF EXCEPTIONS TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS MADE NO
MENTION OF ANY TESTIMONY INDICATING THAT HE SPOKE AT ALL. 

GOGUEN WAS PROSECUTED UNDER THE MASSACHUSETTS STATUTE SET FORTH IN
THE OPINION OF THE COURT, AND HAS ASSERTED HERE NOT ONLY A CLAIM OF
UNCONSTITUTIONAL VAGUENESS BUT A CLAIM THAT THE STATUTE INFRINGES HIS
RIGHT UNDER THE FIRST AND FOURTEENTH AMENDMENTS. 

        I 

THERE IS A GOOD DEAL OF DOUBT ON THIS RECORD THAT GOGUEN WAS TRYING
TO COMMUNICATE ANY PARTICULAR IDEA, AND HAD HE BEEN CONVICTED UNDER A
STATUTE WHICH SIMPLY PROHIBITED IMPROPER DISPLAY OF THE FLAG I WOULD BE
SATISFIED TO CONCLUDE THAT HIS CONDUCT IN WEARING THE FLAG ON THE SEAT
OF HIS PANTS DID NOT COME WITHIN EVEN THE OUTERMOST LIMITS OF THAT SORT
OF "EXPRESSIVE CONDUCT" OR SYMBOLIC SPEECH" WHICH IS ENTITLED TO ANY
FIRST AMENDMENT PROTECTION.  BUT GOGUEN WAS CONVICTED OF TREATING THE
FLAG CONTEMPTUOUSLY BY THE ACT OF WEARING IT WHERE HE DID, AND I HAVE
DIFFICULTY SEEING HOW GOGUEN COULD BE FOUND BY A JURY TO HAVE TREATED
THE FLAG CONTEMPTUOUSLY BY HIS ACT AND STILL NOT TO HAVE EXPRESSED ANY
IDEA AT ALL.  THERE ARE, THEREFORE, IN MY OPINION, AT LEAST MARGINAL
ELEMENTS OF "SYMBOLIC SPEECH" IN GOGUEN'S CONDUCT AS REFLECTED BY THIS
RECORD. 

MANY CASES WHICH COULD BE SAID TO INVOLVE CONDUCT NO LESS EXPRESSIVE
THAN GOGUEN'S, HOWEVER, HAVE NEVER BEEN THOUGHT TO REQUIRE ANALYSIS IN
FIRST AMENDMENT TERMS BECAUSE OF THE PRESENCE OF OTHER FACTORS.  ONE
WHO BURNS DOWN THE FACTORY OF A COMPANY WHOSE PRODUCTS HE DISLIKES CAN
EXPECT HIS FIRST AMENDMENT DEFENSE TO A CONSEQUENT ARSON PROSECUTION TO
BE GIVEN SHORT SHRIFT BY THE COURTS.  THE ARSON STATUTE SAFEGUARDS THE
GOVERNMENT'S SUBSTANTIAL INTEREST IN PREVENTING THE DESTRUCTION OF
PROPERTY BY MEANS DANGEROUS TO HUMAN LIFE, AND AN ARSONIST'S MOTIVE IS
QUITE IRRELEVANT.  THE SAME FATE WOULD DOUBTLESS AWAIT THE FIRST
AMENDMENT CLAIM OF ONE PROSECUTED FOR DESTRUCTION OF GOVERNMENT
PROPERTY AFTER HE DEFACED A SPEED LIMIT SIGN IN ORDER TO PROTEST THE
STATED SPEED LIMIT.  BOTH THE ARSONIST AND THE DEFACER OF TRAFFIC SIGNS
HAVE INFRINGED ON THE PROPERTY INTERESTS OF OTHERS, WHETHER OF ANOTHER
INDIVIDUAL OR OF THE GOVERNMENT.  YET GOGUEN, UNLIKE EITHER, HAS SO FAR
AS THIS RECORD SHOWS INFRINGED ON THE ORDINARY PROPERTY RIGHTS OF NO
ONE. 

THAT GOGUEN OWNED THE FLAG WITH WHICH HE ADORNED HIMSELF, HOWEVER,
IS NOT DISPOSITIVE OF THE FIRST AMENDMENT ISSUE.  JUST AS THE
GOVERNMENT MAY NOT ESCAPE THE REACH OF THE FIRST AMENDMENT BY ASSERTING
THAT IT ACTS ONLY IN A PROPRIETARY CAPACITY WITH RESPECT TO STREETS AND
PARKS TO WHICH IT HAS TITLE, HAGUE V. CIO, 307 U.S. 496, 514 - 516
(1939), A DEFENDANT SUCH AS GOGUEN MAY NOT ESCAPE THE REACH OF THE
POLICE POWER OF THE STATE OF MASSACHUSETTS BY ASSERTING THAT HIS ACT
AFFECTED ONLY HIS OWN PROPERTY.  INDEED, THERE ARE SO MANY WELL
ESTABLISHED EXCEPTIONS TO THE PTOPOSITION THAT ONE MAY DO WHAT HE LIKES
WITH HIS OWN PROPERTY THAT IT CANNOT BE SAID TO HAVE EVEN THE STATUS OF
A GENERAL RULE.     THE VERY SUBSTANTIAL AUTHORITY OF STATE AND LOCAL
GOVERNING BODIES TO REGULATE THE USE OF LAND, AND THEREBY TO LIMIT THE
USES AVAILABLE TO THE OWNER OF THE LAND, WAS ESTABLISHED NEARLY A HALF
CENTURY AGO IN EUCLID V. AMBLER REALTY CO., 272 U.S. 365 (1926).  LAND
USE REGULATIONS IN A RESIDENTIAL ZONING DISTRICT TYPICALLY DO NOT
MERELY EXCLUDE MALODOROUS AND UNSIGHTLY RENDERING PLANTS; THEY OFTEN
ALSO PROHIBIT ERECTION OF BUILDINGS OR MONUMENTS, INCLUDING ONES OPEN
TO THE PUBLIC, WHICH MIGHT ITSELF IN AN AESTHETIC SENSE INVOLVE
SUBSTANTIAL ELEMENTS OF "EXPRESSIVE CONDUCT."  THE PERFORMANCE OF A
PLAY MAY WELL CONSTITUTE EXPRESSIVE CONDUCT OR "PURE" SPEECH, BUT A
LANDOWNER MAY NOT FOR THAT REASON INSIST ON THE RIGHT TO CONSTRUCT AND
OPERATE A THEATER IN AN AREA ZONED FOR NONCOMMERCIAL USES.  SO LONG AS
THE ZONING LAWS DO NOT, UNDER THE GUISE OF NEWTRALITY, ACTUALLY
PROHIBIT THE EXPRESSION OF IDEAS BECAUSE OF THEIR CONTENT, THEY HAVE
NOT BEEN THOUGHT OPEN TO CHALLENGE UNDER THE FIRST AMENDMENT. 

AS MAY LAND, SO MAY OTHER KINDS OF PROPERTY BE SUBJECTED TO CLOSE
REGULATION AND CONTROL.  A PERSON WITH AN OWNERSHIP INTEREST IN
CONTROLLED DRUGS, OR IN FIREARMS, CANNOT USE THEM, SELL THEM, AND
TRANSFER THEM IN WHATEVER MANNER HE PLEASES.  THE COPYRIGHT LAWS, 17
U.S.C. 1 ET SEQ., LIMIT WHAT USE THE PURCHASER OF A COPYWRIGHTED BOOK
MAY MAKE OF HIS ACQUISITION.  A COMPANY MAY BE RESTRICTED IN WHAT IT
ADVERTISES ON ITS BILLBOARDS, PACKER CORP. V. UTAH, 285 U.S. 105
(1932). 

THE STATUTE WHICH GOGUEN VIOLATED, HOWEVER, DOES NOT PURPOST TO
PROTECT THE RELATED INTERESTS OF OTHER PROPERTY OWNERS, NEIGHBORS, OR
INDEED ANY COMPETING OWNERSHIP INTEREST IN THE SAME PROPERTY; THE
INTEREST WHICH IT PROTECTS IS THAT OF THE GOVERNMENT, AND IS NOT A
TRADITIONAL PROPERTY INTEREST. 

EVEN IN THIS, HOWEVER, LAWS REGULATING USE OF THE FLAG ARE BY NO
MEANS UNIQUE.  A NUMBER OF EXAMPLES CAN BE FOUND OF STATUTES ENACTED BY
CONGRESS WHICH PROTECT ONLY A PECULIARLY GOVERNMENTAL INTEREST IN
PROPERTY OTHERWISE PRIVATELY OWNED.  TITLE 18 U.S.C. 504 PROHIBITS THE
PRINTING OR PUBLISHING IN ACTUAL SIZE OR IN ACTUAL COLOR OF ANY UNITED
STATES POSTAGE OR REVENUE STAMP, OR OF ANY OBLIGATION OR SECURITY OF
THE UNITED STATES.  IT LIKEWISE PROHIBITS THE IMPORTATION OF ANY PLATES
FOR THE PURPOSE OF SUCH PRINTING.  TITLE 18 U.S.C. 331 PROHIBITS THE
ALTERATION OF ANY FEDERAL RESERVE NOTE OR NATIONAL BANK NOTE, AND 18
U.S.C. 333 PROHIBITS THE DISFIGURING OR DEFACING OF ANY NATIONAL BANK
NOTE OR COIN.  TITLE 18 U.S.C. 702 PROHIBITS THE WEARING OF A MILITARY
UNIFORM, ANY PART OF SUCH UNIFORM, OR ANYTHING SIMILAR TO A MILITARY
UNIFORM OR PART THEREOF WITHOUT PROPER AUTHORIZATION.  TITLE 18 U.S.C.
704 PROHIBITS THE UNAUTHORIZED WEARING OF SERVICE MEDALS.  IT IS NOT
WITHOUT SIGNIFICANCE THAT MANY OF THESE STATUTES, THOUGH LONG ON THE
BOOKS, HAVE NEVER BEEN JUDICIALLY CONSTRUED OR EVEN CHALLENGED. 

MY BROTHER WHITE SAYS, HOWEVER, THAT WHATEVER MAY BE SAID OF NEUTRAL
STATUTES EIMPLY DESIGNED TO PROTECT A GOVERNMENTAL INTEREST IN PRIVATE
PROPERTY, WHICH IN THE CASE OF THE FLAG MAY BE CHARACTERIZED AS AN
INTEREST IN PRESERVING ITS PHYSICAL INTEGRITY, THE MASSACHUSETTS
STATUTE HERE IS NOT NEUTRAL.  IT PUNISHES ONLY THOSE WHO TREAT THE FLAG
CONTEMPTUOUSLY, IMPOSING NO PENALTY ON THOSE WHO "TREAT" IT OTHERWISE,
THAT IS, THOSE WHO IMPAIR ITS PHYSICAL INTEGRITY IN SOME OTHER WAY. 

  II 

LEAVING ASIDE FOR THE MOMENT THE NATURE OF THE GOVERNMENTAL INTEREST
IN PROTECTING THE PHYSICAL INTEGRITY OF THE FLAG, I CANNOT ACCEPT THE
CONCLUSION THAT THE MASSACHUSETTS STATUTE MUST BE INVALIDATED FOR
PUNISHING ONLY SOME CONDUCT THAT IMPAIRS THE FLAG'S PHYSICAL
INTEGRITY.  IT IS TRUE, AS THE COURT OBSERVES, THAT WE DO NOT HAVE IN
SO MANY WORDS A "NARROWING CONSTRUCTION" OF THE STATUTE FROM THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS.  BUT THE FIRST OF THIS COURT'S
DECISIONS CITED IN THE SHORT RESCRIPT OPINION OF THE SUPREME JUDICIAL
COURT IS HALTER V. NEBRASKA, 205 U.S. 34 (1907), WHICH UNHELD AGAINST
CONSTITUTIONAL ATTACK A NEBRASKA STATUTE WHICH FORBADE THE USE OF THE
UNITED STATES FLAG FOR PURPOSES OF ADVERTISING.  WE ALSO HAVE THE
BENEFIT OF AN OPINION OF THE ATTORNEY GENERAL OF THE COMMONWEALTH OF
MASSACHUSETTS THAT THE STATUTE UNDER WHICH GOGUEN WAS PROSECUTED, BEING
PENAL, "'IS NOT TO BE ENLARGED BEYOND ITS PLAIN IMPORT, AND AS A
GENERAL RULE IS STRICTLY CONSTRUED.'"  REPORT OF ATTY. GEN., PUB. DOC.
NO. 12, PP. 192 - 193 (1968).  WITH THIS GUIDANCE, AND THE FURTHER
ASSISTANCE OF THE CONTENT OF THE ENTIRE STATUTORY PROHIBITION, I THINK
THE SUPREME JUDICIAL COURT WOULD READ THE LANGUAGE "WHOEVER PUBLICLY
MUTILATES, TRAMPLES UPON, DEFACES, OR TREATS CONTEMPTUOUSLY THE FLAG OF
THE UNITED STATES ..."  AS CARRYING THE CLEAR IMPLICATION THAT THE
CONTEMPTUOUS TREATMENT, LIKE MUTILATION, TRAMPLING UPON, OR DEFACING,
MUST INVOLVE SOME ACTUAL PHYSICAL CONTACT WITH THE FLAG ITSELF.  SUCH A
READING WOULD EXCLUDE A MERELY DEROGATORY GESTURE PERFORMED AT A
DISTANCE FROM THE FLAG, AS WELL AS PURELY VERBAL DISPARAGEMENT OF IT. 
/1/ 

IF THE STATUTE IS THUS LIMITED TO ACTS WHICH AFFECT THE PHYSICAL
INTEGRITY OF THE FLAG, THE QUESTION REMAINS WHETHER THE STATE HAS
SOUGHT ONLY TO PUNISH THOSE WHO IMPAIR THE FLAG'S PHYSICAL INTEGRITY
FOR THE PURPOSE OF DISPARAGING IT AS A SYMBOL, WHILE PERMITTING
IMPAIRMENT OF ITS PHYSICAL INTEGRITY BY THOSE WHO DO NOT SEEK TO
DISPARAGE IT AS A SYMBOL.  IF THAT WERE THE CASE, HOLDINGS LIKE SCHACHT
V. UNITED STATES, 398 U.S. 58 (1970), SUGGEST THAT SUCH A LAW WOULD
ABRIDGE THE RIGHT OF FREE EXPRESSION. 

BUT MASSACHUSETTS METES OUT PUNISHMENT TO ANYONE WHO PUBLICLY
MUTILATES, TRAMPLES, OR DEFACES THE FLAG, REGARDLESS OF HIS MOTIVE OR
PURPOSE.  IT ALSO PUNISHES THE DISPLAY OF ANY "WORDS, FIGURES,
ADVERTISEMENTS OR DESIGNS"  ON THE FLAG, OR THE USE OF A FLAG IN A
PARADE AS A RECEPTACLE FOR DEPORITING OR COLLECTING MONEY.  LIKEWISE
PROHIBITED IS THE OFFERING OR SELLING OF ANY OARTICLE ON WHICH IS
ENGRAVED A REPRESENTATION OF THE UNITED STATES FLAG. 

THE VARIETY OF THESE PROHIBITIONS DEMONSTRATES THAT MASSACHUSETTS
HAS NOT MERELY PROHIBITED IMPAIRMENT OF THE PHYSICAL INTEGRITY OF THE
FLAG BY THOSE WHO WOULD CAST CONTEMPT UPON IT, BUT EQUALLY BY THOSE WHO
WOULD SEEK TO TAKE ADVANTAGE OF ITS FAVORABLE IMAGE IN ORDER TO
FACILITATE ANY COMMERCIAL PURPOSE, OR THOSE WHO WOULD SEEK TO CONVEY
ANY MESSAGE AT ALL BY MEANS OF IMPRINTING WORDS OR DESIGNS ON THE
FLAG.  THESE PROHIBITIONS ARE BROAD ENOUGH THAT IT CAN BE FAIRLY SAID
THAT THE MASSACHUSETTS STATUTE IS ONE ESSENTIALLY DESIGNED TO PRESERVE
THE PHYSICAL INTEGRITY OF THE FLAG, AND NOT MERELY TO PUNISH THOSE WHO
WOULD INFRINGE THAT INTEGRITY FOR THE PURPOSE OF DISPARAGING THE FLAG
AS A SYMBOL.  WHILE IT IS TRUE THAT THE STATUTE DOES NOT APPEAR TO
COVER ONE WHO SIMPLY WEARS A FLAG, UNLESS HIS CONDUCT FOR OTHER REASONS
FALLS WITHIN ITS PROHIBITIONS, THE LEGISLATURE IS NOT REQUIRED TO
ADDRESS EVERY RELATED MATTER IN AN AREA WITH ONE STATUTE.  KATZENBACH
V. MORGAN, 384 U.S. 641, 656-658 (1966).  IT MAY WELL BE THAT THE
INCIDENCE OF SUCH CONDUCT AT THE TIME THE STATUTE WAS ENACTED WAS NOT
THOUGHT TO WARRANT LEGISLATION IN ORDER TO PRESERVE THE PHYSICAL
INTEGRITY OF THE FLAG. 

IN UNITED STATES V. O' BRIEN, 391 U.S. 367 (1968), THE COURT
OBSERVED:

 LIMITLESS VARIETY OF CONDUCT CAN BE LABELED 'SPEECH'  WHENEVER THE
PERSON ENGAGING IN THE

  CONDUCT INTENDS THEREBY TO EXPRESS AN IDEA."  ID., AT 376.  THEN,
PROCEEDING "ON THE ASSUMPTION THAT THE ALLEGED COMMUNICATIVE ELEMENT IN
O' BRIEN'S CONDUCT (WAS) SUFFICIENT TO BRING INTO PLAY THE FIRST
AMENDMENT," THE COURT HELD THAT A REGULATION OF CONDUCT WAS
SUFFICIENTLY JUSTIFIED 

"IF IT IS WITHIN THE CONSTITUTITONAL POWER OF THE GOVERNMENT; IF IT
FURTHERS AN IMPORTANT OR SUBSTANTIAL GOVERNMENTAL INTEREST; IF THE
GOVERNMENTAL INTEREST IS UNRELATED TO THE SUPPRESSION OF FREE
EXPRESSION; AND IF THE INCIDENTAL RESTRICTION ON ALLEGED FIRST
AMENDMENT FREEDOMS IS NO GREATER THAN IS ESSENTIAL TO THE FURTHERANCE
OF THAT INTEREST."  ID., AT 377. 

WHILE I HAVE SOME DOUBT THAT THE FIRST ENUNCIATION OF A GROUP OF
TESTS SUCH AS THOSE ESTABLISHED IN O' BRIEN SETS THEM IN CONCRETE FOR
ALL TIME, IT DOES SEEM TO ME THAT THE MASSACHUSETTS STATUTE
SUBSTANTIALLY COMPLIES WITH THOSE TESTS.  THERE CAN BE NO QUESTION THAT
A STATUTE SUCH AS THE MASSACHUSETTS ONE HERE IS "WITHIN" THE
CONSTITUTIONAL POWER OF A STATE TO ENACT.  SINCE THE STATUTE BY THIS
READING PUNISHES A VARIETY OF USES OF THE FLAG WHICH WOULD IMPAIR ITS
PHYSICAL INTEGRITY, WITHOUT REGARD TO PRESENCE OR CHARACTER OF
EXPRESSIVE CONDUCT IN CONNECTION WITH THOSE USES, I THINK THE
GOVERNMENTAL INTEREST IS UNRELATED TO THE SUPPRESSION OF FREE
EXPRESSION.  THE QUESTION OF WHETHER THE GOVERNMENTAL INTEREST IS
"SUBSTANTIAL"  IS NOT EASY TO SEVER FROM THE QUESTION OF WHETHER THE
RESTRICTION IS "NO GREATER THAN IS ESSENTIAL TO THE FURTHERANCE OF THAT
INTEREST," AND I THEREFORE TREAT THOSE I BELIEVE THAT BOTH OF THESE
TESTS ARE MET, AND THAT THE GOVERNMENTAL INTEREST IS SUFFICIENT TO
OUTWEIGH WHATEVER COLLATERAL SUPPRESSION OF EXPRESSIVE CONDUCT WAS
INVOLVED IN THE ACTIONS OF GOGUEN.  IN SO CONCLUDING, I FIND MYSELF IN
AGREEMENT NOT ONLY WITH MY BROTHER WHITE IN THIS CASE, BUT WITH THOSE
MEMBERS OF THE COURT REFERRED TO EARLIER IN THIS OPINION WHO DISSENTED
FROM THE COURT'S DISPOSITION IN THE CASE OF STREET V. NEW YORK, 394
U.S. 576 (1969). 

MY BROTHER WHITE ALLUDES TO THE EARLY LEGISLATION OF BOTH THE
CONTINENTAL CONGRESS AND OF THE CONGRESS OF THE NEW NATION DEALING WITH
THE FLAGS, AND OBSERVES, " ONE NEED NOT EXPLAIN FULLY A PHENOMENON TO
RECOGNIZE ITS EXISTENCE AND IN THIS CASE TO CONCEDE THAT THE FLAG IS AN
IMPORTANT SYMBOL OF NATIONHOOD AND UNITY, CREATED BY THE NATION AND
ENDOWED WITH CERTAIN ATTRIBUTES.  CONCEIVED IN THIS LIGHT, I HAVE NO
DOUBT ABOUT THE VALIDITY OF LAWS DESIGNATING AND DESCRIBING THE FLAG
AND REGULATING ITS USE, DISPLAY, AND DISPOSITION."  I AGREE. 

ON SEPTEMBER 17, 1787, AS THE LAST MEMBERS OF THE CONSTITUTIONAL
CONVENTION WERE SIGNING THE INSTRUMENT, JAMES MADISON IN HIS " NOTES"
DESCRIBES THE OCCURRENCE OF THE FOLLOWING INCIDENT: 

" WHILST THE LAST MEMBERS WERE SIGNING IT DOCTOR FRANKLIN LOOKING
TOWARDS THE PRESIDENT'S CHAIR, AT THE BACK OF WHICH A RISING SUN
HAPPENED TO BE PAINTED, OBSERVED TO A FEW MEMBERS NEAR HIM, THAT
PAINTERS HAD FOUND IT DIFFICULT TO DISTINGUISH IN THEIR ART A RISING
FROM A SETTING SUN.  I HAVE SAID HE, OFTEN AND OFTEN IN THE COURSE OF
THE SESSION, AND THE VICISSITUDES OF MY HOPES AND FEARS AS TO ITS
ISSUE, LOOKED AT THAT BEHIND THE PRESIDENT WITHOUT BEING ABLE TO TELL
WHETHER IT WAS RISING OR SETTING:  BUT NOW AT LENGTH I HAVE THE
HAPPINESS TO KNOW THAT IT IS A RISING AND NOT A SETTING SUN."  4
WRITINGS OF JAMES MADISON 482 - 483 (HUNT ED. 1903). 

WRITING FOR THIS COURT MORE THAN ONE HUNDRED YEARS LATER, MR.
JUSTICE HOLMES MADE THE FAMILIAR STATEMENT: 

"(WHEN WE ARE DEALING WITH WORDS THAT ALSO ARE A CONSTITUENT ACT,
LIKE THE CONSTITUTION OF THE UNITED STATES, WE MUST REALIZE THAT THEY
HAVE CALLED INTO LIFE A BEING THE DEVELOPMENT OF WHICH COULD NOT HAVE
BEEN FORESEEN COMPLETELY BY THE MOST GIFTED OF ITS BEGETTERS.  IT WAS
ENOUGH FOR THEM TO REALIZE OR TO HOPE THAT THEY HAD CREATED AN
ORGANISM; IT HAS TAKEN A CENTURY AND HAS COST THEIR SUCCESSORS MUCH
SWEAT AND BLOOD TO PROVE THAT THEY CREATED A NATION.  THE CASE BEFORE
US MUST BE CONSIDERED IN THE LIGHT OF OUR WHOLE EXPERIENCE AND NOT
OMERELY IN THAT OF WHAT WAS SAID A HUNDRED YEARS AGO."  MISSOURI V.
HOLLAND, 252 U.S. 416, 433 (1920).  FROM ITS EARLIEST DAYS, THE ART AND
LITERATURE OF OUR COUNTRY HAVE ASSIGNED A SPECIAL PLACE TO THE FLAG OF
THE UNITED STATES.  IT FUGURES PROMINENTLY IN AT LEAST ONE OF CHARLES
WILLSON PEALE'S PORTRAITS OF GEORGE WASHINGTON, SHOWING HIM AS LEADER
OF THE FORCES OF THE 13 COLONIES DURING THE REVOLUTIONARY WAR.  NO ONE
WHO LIVED THROUGH THE SECOND WORLD WAR IN THIS COUNTRY CAN FORGET THE
IMPACT OF THE PHOTOGRAPHS OF THE MEMBERS OF THE UNITED STATES MARINE
CORPS RAISING THE UNITED STATES FLAG ON THE TOP OF MOUNT SURIBACHI ON
THE ISLAND OF IWO JIMA, WHICH IS NOW COMMEMORATED IN A STATUE AT THE
IWO JIMA MEMORIAL ADJOINING ARLINGTON NATIONAL CEMETERY. 

RALPH WALDO EMERSON, WRITING 50 YEARS AFTER THE BATTLES OF LEXINGTON
AND CONCORD, WROTE:

" BY THE RUDE BRIDGE THAT ARCHED THE FLOOD THEIR FLAG TO

         APRIL'S BREEZE UNFURLED

         HERE ONCE THE EMBATTLED FARMERS STOOD AND FIRED THE SHOT

           HEARD 'ROUND THE WORLD." 

OLIVER WENDELL HOLMES, SENIOR, CELEBRATED THE FLAG THAT HAD FLOWN ON
" OLD IRONSIDES" DURING THE WAR OF 1812, AND JOHN GREENLEAF WHITTIER
MADE BARBARA FRIETCHIE'S DEVOTION TO THE "SILKIN SCARF" IN THE TEETH OF
STONEWALL JACKSON'S OMINOUS THREATS THE CENTRAL THEME OF HIS FAMILIAR
POEM.  JOHN PHIPIP SOUSA'S " STARS AND STRIPES FOREVER" AND GEORGE M.
COHAN'S " IT'S A GRAND OLD FLAG"  ARE MUSICAL CELEBRATIONS OF THE FLAG
FAMILIAR TO ADULTS AND CHILDREN ALIKE.  FRANCIS SCOTT KEY'S " STAR
SPANGLED BANNER" IS THE COUNTRY'S NATIONAL ANTHEM. 

WHILE MOST OF THE ARTISTIC EVOCATIONS OF THE FLAG OCCUR IN THE
CONTEXT OF TIMES OF NATIONAL STRUGGLE, AND CORRESPONDINGLY GREATER
DEPENDENCE ON THE FLAG AS A SYMBOL OF NATIONAL UNITY, THE IMPORTANCE OF
THE FLAG IS BY NO MEANS LIMITED TO THE FIELD OF HOSTILITIES.  THE
UNITED STATES FLAG FLIES OVER EVERY FEDERAL COURTHOUSE IN OUR NATION,
AND IS PROMINENTLY DISPLAYED IN ALMOST EVERY FEDERAL, STATE, OR LOCAL
PUBLIC BUILDING THROUGHOUT THE LAND.  IT IS THE ONE VISIBLE EMBODIMENT
OF THE AUTHORITY OF THE NATIONAL GOVERNMENT, THROUGH WHICH THE LAWS OF
THE NATION AND THE GUARANTEES OF THE CONSTITUTION ARE ENFORCED. 

IT IS NOT EMPTY RHETORIC TO SAY THAT THE UNITED STATES CONSTITUTION,
EVEN THE FIRST AND FOURTEENTH AMENDMENTS UNDER WHICH GOGUEN SEEKS TO
UPSET HIS CONVICTION, DOES NOT INVARIABLY IN THE WORLD OF PRACTICAL
AFFAIRS ENFORCE ITSELF.  GOING BACK NO FURTHER THAN THE MEMORIES OF
MOST OF US PRESENTLY ALIVE, THE UNITED STATES FLAG WAS CARRIED BY
FEDERAL TROOPS SUMMONED BY THE PRESIDENT TO ENFORCE DECREES OF FEDERAL
COURTS IN LITTLE ROCK, ARKANSAS, IN 1957, AND IN OXFORD, MISSISSIPPI,
IN 1962. 

THE SIGNIFICANCE OF THE FLAG, AND THE DEEP EMOTIONAL FEELINGS IT
AROUSES IN A LARGE PART OF OUR CITIZENRY, CANNOT BE FULLY EXPRESSED IN
THE TWO DIMENSIONS OF A LAWYER'S BRIEF OR OF A JUDICIAL OPINION.  BUT
IF THE GOVERNMENT MAY CREATE PRIVATE PROPRIETARY INTERESTS IN WRITTEN
WORK AND IN MUSICAL AND THEATRICAL PERFORMANCES BY VIRTUE OF COPYRIGHT
LAWS, I SEE NO REASON WHY IT MAY NOT, FOR ALL OF THE REASONS MENTIONED,
CREATE A SIMILAR GOVERNMENTAL INTEREST IN THE FLAG BY PROHIBITING EVEN
THOSE WHO HAVE PURCHASED THE PHYSICAL OBJECT FROM IMPAIRING ITS
PHYSICAL INTEGRITY.  FOR WHAT THEY HAVE PURCHASED IS NOT MERELY CLOTH
DYED RED, WHITE, AND BLUE, BUT ALSO THE ONE VISIBLE MANIFESTATION OF
TWO HUNDRED YEARS OF NATIONHOOD-, A HISTORY COMPILED BY GENERATIONS OF
OUR FOREBEARS AND CONTRIBUTED TO BY STREAMS OF IMMIGRANTS FROM THE FOUR
CORNERS OF THE GLOBE, WHICH HAS TRAVELED A COURSE SINCE THE TIME OF
THIS COUNTRY'S ORIGIN THAT COULD NOT HAVE BEEN "FORESEEN . . . BY THE
MOST GIFTED OF ITS BEGETTERS." 

THE PERMISSIBLE SCOPE OF GOVERNMENT REGULATION OF THIS UNIQUE
PHYSICAL OBJECT CANNOT BE ADEQUATELY DEALT WITH IN TERMS OF THE LAW OF
PRIVATE PROPERTY OR BY A HIGHLY ABSTRACT, SCHOLASTIC INTERPRETATION OF
THE FIRST AMENDMENT.  MASSACHUSETTS HAS NOT PROHIBITED GOGUEN FROM
WEARING A SIGN SEWN TO THE SEAT OF HIS PANTS EXPRESSING IN WORDS HIS
LOW OPINION OF THE FLAG, OF THE COUNTRY, OR ANYTHING ELSE.  IT HAS
PROHIBITED HIM FROM WEARING THERE A PARTICULAR SYMBOL OF EXTRAORDINARY
SIGNIFICANCE AND CONTENT, FOR WHICH SIGNIFICANCE AND CONTENT GOGUEN IS
IN NO WISE RESPONSIBLE.  THE FLAG OF THE UNITED STATES IS NOT JUST
ANOTHER "THING," AND IT IS NOT JUST ANOTHER "IDEA"; IT IS NOT PRIMARILY
AN IDEA AT ALL. 

HERE GOGUEN WAS, SO FAR AS THIS RECORD APPEARS, QUITE FREE TO
EXPRESS VERBALLY WHATEVER VIEWS IT WAS HE WAS SEEKING TO EXPRESS BY
WEARING A FLAG SEWN TO HIS PANTS, ON THE STREETS OF LEOMINSTER OR IN
ANY OF ITS PARKS OR COMMONS WHERE FREE SPEECH AND ASSEMBLY WERE
CUSTOMARILY PERMITTED.  HE WAS NOT COMPELLED IN ANY WAY TO SALUTE THE
FLAG, PLEDGE ALLEGIANCE TO IT, OR MAKE ANY AFFIRMATIVE GESTURE OF
SUPPORT OR RESPECT FOR IT SUCH AS WOULD CONTRAVENE WEST VIRGINIA BOARD
OF EDUCATION V. BARNETTE, 319 U.S. 624 (1943).  HE WAS SIMPLY
PROHIBITED FROM IMPAIRING THE PHYSICAL INTEGRITY OF A UNIQUE NATIONAL
SYMBOL WHICH HAS BEEN GIVEN CONTENT BY GENERATIONS OF HIS AND OUR
FOREBEARS, A SYMBOL OF WHICH HE HAD ACQUIRED A COPY.  I BELIEVE
MASSACHUSETTS HAD A RIGHT TO ENACT THIS PROHIBITION. 

/1/  TO THE EXTENT THAT COUNSEL FOR APPELLANT WHO ARGUED THE CAUSE
IN THE COURT OF APPEALS MAY HAVE INTIMATED A BROADER CONSTRUCTION IN
THE COLLOQUY IN THAT COURT QUOTED IN THIS COURT'S OPINION, ANTE, AT 575
- 576.  I WOULD ATTACH LITTLE WEIGHT TO IT.  WE HAVE PREVIOUSLY SAID
THAT WE ARE "LOATH TO ATTACH CONCLUSIVE WEIGHT TO THE RELATIVELY
SPONTANEOUS RESPONSES OF COUNSEL TO EQUALLY SPONTANEOUS QUESTIONING
FROM THE COURT DURING ORAL ARGUMENT," MOOSE LODGE NO. 107 V. IRVIS, 407
U.S. 163, 170 (1972), AND IF THAT BE THE CASE SURELY EVEN LESS WEIGHT
SHOULD BE ASCRIBED BY US TO A COLLOQUY WHICH TOOK PLACE IN ANOTHER
COURT. 

CHARLES E. CHASE, ASSISTANT ATTORN Y GENERAL OF MASSACHUSETTS,
ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEFS WERE ROBERT H.
QUINN, ATTORNEY GENERAL, JOHN J. IRWIN, JR., AND DAVID A. MILLS,
ASSISTANT ATTORNEYS GENERAL, AND WILLIAM T. BUCKLEY. 

EVAN T. LAWSON ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WERE MATTHEW FEINBERG AND BURT NEUBORNE. 
..END :







MAYOR V. EDUCATIONAL EQUALITY LEAGUE, 415 U.S. 605 


       MAYOR OF PHILADELPHIA V. EDUCATIONAL EQUALITY LEAGUE ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 72 - 1264.  ARGUED DECEMBER 10, 1973--DECIDED MARCH 25,

      1974; 472 F.2D 612, REVERSED.) 


    THE MAYOR OF PHILADELPHIA IS EMPOWERED BY THE CITY CHARTER TO

  APPOINT A NOMINATING PANEL, WHICH IN TURN SUBMITS TO HIM NOMINEES

  TO FILL VACANCIES ON THE SCHOOL BOARD.  THE PANEL CONSISTS OF 13

  MEMBERS.  THE MAYOR MUST APPOINT FOUR MEMBERS FROM THE CITIZENRY

  AT LARGE; EACH OF THE REMAINING NINE MUST BE THE HIGHEST RANKING

  OFFICER OF ONE OF NINE DESIGNATED CATEGORIES OF CITYWIDE

  ORGANIZATIONS.  A NEW PANEL IS CONVENED IN EVERY ODD-NUMBERED

  YEAR.  RESPONDENTS BROUGHT THIS ACTION FOR DECLARATORY AND

  INJUNCTIVE RELIEF CHARGING THAT MAYOR TATE HAD VIOLATED THE EQUAL

  PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT BY DISCRIMINATING

  AGAINST NEGROES IN APPOINTMENTS TO THE 1971 PANEL.  FOLLOWING

  HEARINGS, THE DISTRICT COURT FOUND THAT RESPONDENTS HAD FAILED TO

  PROVE RACIAL DISCRIMINATION AND DISMISSED THEIR COMPLAINT.  THE

  COURT OF APPEALS REVERSED, CONCLUDING THAT RESPONDENTS HAD

  ESTABLISHED AN UNREBUTTED PRIMA FACIE CASE OF UNLAWFUL EXCLUSION

  OF NEGROES FROM CONSIDERATION FOR SERVICE ON THE 1971 PANEL. 

  ALTHOUGH TATE WAS SUCCEEDED, WHILE THE CASE WAS SUB JUDICE, BY

MAYOR RIZZO (AS TO WHOSE PANEL APPOINTMENT PRACTICES THE RECORD

  IS SILENT), THE COURT DIRECTED THE ISSUANCE OF CERTAIN INJUNCTIVE

  RELIEF AGAINST RIZZO WITH REGARD TO THE 1973 PANEL AND FUTURE

  PANELS.  HELD: 

     1.  THE MAYOR'S PRINCIPAL ARGUMENT, THAT FEDERAL COURTS MAY
NOT

  INTERFERE WITH THE DESCRETIONARY APPOINTMENT POWERS OF AN ELECTED

  EXECUTIVE OFFICER, IS OF GREATER IMPORTANCE THAN WAS ACCORDED IT

  BY THE COURT OF APPEALS, BUT THE ARGUMENT NEED NOT BE ADDRESSED

  HERE SINCE THE RECORD IS DEVOID OF RELIABLE PROOF OF RECIAL

  DISCRIMINATION.  PP. 613 - 616. 

     2.  THE COURT OF APPEALS' FINDING OF RACIAL DISCRIMINATION

  RESTS ON AMBIGUOUS TESTIMONY AS TO A STATEMENT IN 1969 BY THEN

  MAYOR TATE WITH REGARD TO THE 1969 SCHOOL BOARD, NOT THE 1971

  PANEL; THE UNAWARENESS OF CERTAIN ORGANIZATIONS ON THE PART OF A

  CITY OFFICIAL WHO DID NOT HAVE FINAL AUTHORITY OVER THE

  CHALLENGED APPOINTMENTS; AND RACIAL-COMPOSITION PERCENTAGE

  COMPARISONS THE DISTRICT COURT CORRECTLY REJECTED AS MEANINGLESS

  IN THE CONTEXT OF THIS CASE.  THE COURT OF APPEALS THEREFORE

  ERRED IN OVERTURNING THE DISTRICT COURT'S FINDINGS AND

  CONCLUSIONS.  PP. 616 - 621. 

     3.  THE COURT OF APPEALS ERRED IN ORDERING INJUNCTIVE RELIEF

  AGAINST MAYOR RIZZO WITH REGARD TO THE 1973 PANEL AND FUTURE

  PANELS SINCE THE RECORD SPEAKS SOLELY TO THE APPOINTMENT

  PRACTICES OF TATE, HIS PREDECESSOR, WHO LEFT OFFICE IN 1972.  PP.

  621 - 623. 

    4.  THE PRINCIPAL ISSUE THROUGHOUT THIS LITIGATION HAS BEEN

  WHETHER MAYOR TATE VIOLATED THE FOURTEENTH AMENDMENT.  THERE IS

  NO BASIS FOR REMANDING THE CASE OT THE DISTRICT COURT FOR

  RESOLUTION OF PERIPHERAL STATE LAW ISUES UNDER THAT COURT'S

  PENDENT JURISDICTION OR, ALTERNATIVELY, FOR ABSTENTION SO THAT

  THE CASE MAY BE TRIED ANEW IN A STATE COURT.  PP. 623 - 629. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, BLACKMUN, AND REHNQUIST, JJ., JOINED

  WHITE, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND

  MARSHALL, JJ., JOINED, AND IN PART II OF WHICH DOUGLAS, J.,

  JOINED, POST, P. 633. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

IN 1965 THE VOTERS OF PHILADELPHIA APPROVED A PUBLIC EDUCATION
SUPPLEMENT TO THEIR CITY CHARTER ESTABLISHING THE PRESENT STRUCTURE OF
THE PHILADELPHIA BOARD OF EDUCATION (THE SCHOOL BOARD OR BOARD).  THE
SUPPLEMENT, WHICH APPEARS AS ART. XII OF THE CITY CHARTER, /1/  VESTS
IN THE MAYOR A DOUBLE APPOINTMENT POWER WITH REGARD TO THE SCHOOL
BOARD.  THE MAYOR APPOINTS THE NINE MEMBERS OF THE BOARD, BUT HE IS
ASSISTED IN THAT TASK BY ANOTHER ENTITY THAT HE ALSO APPOINTS, THE
EDUCATIONAL NOMINATING PANEL (THE NOMINATING PANEL OR PANEL.  THE
FUNCTION OF THE PANEL IS TO SEEK OUT QUALIFIED CANDIDATES FOR SERVICE
ON THE SCHOOL BOARD BY POLLING CIVIC ORGANIZATIONS AND THE CITIZENRY AT
LARGE, TO INTERVIEW THOSE CANDIDATES, TO DELIBERATE ON THEIR
QUALIFICATIONS, AND TO SUBMIT SELECTED NOMINEES TO THE MAYOR.  THE
PANEL SUBMITS THREE NOMINEES FOR EVERY VACANCY ON THE BOARD.  IN HIS
DISCRETION, THE MAYOR MAY REQUEST AN ADDITIONAL THREE NOMINEES PER
VACANCY.  THE MAYOR MUST THEN MAKE APPOINTMENTS TO THE SCHOOL BOARD
FROM AMONG THE NOMINEES SUBMITTED BY THE PANEL. 

THE NOMINATING PANEL CONSISTS OF 13 MEMBERS.  UNDER THE TERMS OF THE
CITY CHARTER, THE MAYOR APPOINTS FOUR MEMBERS OF THE PANEL FROM THE
CITIZENRY AT LARGE.  EACH OF THE REMAINING MEMBERS MUST BE THE HIGHEST
RANKING OFFICER OF ONE OF NINE CATEGORIES OF CITYWIDE ORGANIZATIONS OR
INSTITUTIONS, SUCH AS A LABOR UNION COUNCIL, A COMMERCE ORGANIZATION, A
PUBLIC SCHOOL PARENT-TEACHERS ASSOCIATION, A DEGREE-GRANTING
INSTITUTION OF HIGHER LEARNING, AND THE LIKE.  /2/  ALTHOUGH THE CITY
CHARTER DESCRIBES WITH SUBSTANTIAL SPECIFICITY THE NINE CATEGORIES OF
ORGANIZATIONS OR INSTITUTIONS WHOSE LEADERS MAY SERVE ON THE NOMINATING
PANEL, THE CHARTER DOES NOT DESIGNATE ANY PARTICULAR ORGANIZATION OR
INSTITUTION BY NAME.  IT IS POSSIBLE FOR MORE THAN ONE SUCH CITYWIDE
ENTITY TO QUALIFY UNDER ANY GIVEN CATEGORY. 

THE MEMBERS OF THE NOMINATING PANEL SERVE TWO-YEAR TERMS.  A NEW
PANEL IS APPOINTED AND CONVENED IN EVERY ODD-NUMBERED YEAR, WHEN, IN
THE ORDINARY COURSE, THREE VACANCIES OCCUR ON THE SCHOOL BOARD.  /3/
THUS, SINCE 1965 THERE HAVE BEEN FIVE PANELS.  MAYOR JAMES J. H. TATE,
WHOSE TERM EXPIRED IN 1972, APPOINTED THE 1965, 1967, 1969, AND 1971
PANELS.  THE PRESENT MAYOR, FRANK RIZZO, APPOINTED THE 1973 PANEL. 

RESPONDENTS INCLUDE THE EDUCATIONAL EQUALITY LEAGUE, /4/  THE
PRESIDENT OF THE LEAGUE, ANOTHER CITIZEN OF PHILADELPHIA, AND TWO
STUDENTS ATTENDING THE CITY'S PUBLIC SCHOOLS.  SHORTLY AFTER MAYOR
TATE'S APPOINTMENT OF THE 1971 NOMINATING PANEL, RESPONDENTS FILED THIS
SUIT AS A CLASS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA, RELYING ON 42 U.S.C. 1983 AND 28
U.S.C. 1343 (3).  THE GRAVAMEN OF THEIR COMPLAINT, WHICH NAMED THE
MAYOR OF PHILADELPHIA AND THE NOMINATING PANEL AS DEFENDANTS, WAS THAT
MAYOR TATE HAD VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT BY DISCRIMINATING AGAINST NEGROES IN HIS APPOINTMENTS TO THE
1971 PANEL.  RESPONDENTS SOUGHT AN INJUNCTION BARRING THE 1971 PANEL
FROM SUBMITTING NOMINEES FOR THE BOARD TO THE MAYOR AND A DECLARATORY
JUDGMENT THAT MAYOR TATE HAD VIOLATED THE CONSTITUTION.  THEY ALSO
REQUESTED AN ORDER DIRECTING THE MAYOR TO APPOINT A NOMINATING PANEL
"FAIRLY REPRESENTATIVE OF THE RACIAL COMPOSITION OF THE SCHOOL
COMMUNITY." 

RESPONDENTS DID NOT CHALLENGE THE RACIAL COMPOSITION OF THE SCHOOL
BOARD, WHICH CONSISTED OF TWO NEGROES AND SEVEN WHITES WHEN RESPONDENTS
FILED THEIR COMPLAINT AND WHICH NOW CONSISTS OF THREE NEGROES AND SIX
WHITES.  /5/  THEY DID NOT ALLEGE THAT THE 1971 PANEL DISCRIMINATED IN
ITS SUBMISSION OF SCHOOL BOARD NOMINEES TO THE MAYOR.  /6/  SUCH AN
ATTACK WOULD HAVE BEEN DIFFICULT TO MOUNT IN ANY EVENT.  OF THE NINE
NOMINEES SUBMITTED TO THE MAYOR BY THE !971 PANEL, FOUR WERE NEGROES
AND FIVE WERE WHITES.  /7/  MOREOVER, RESPONDENTS DID NOT DISPUTE THE
VALIDITY OF THE QUALIFICATIONS SET FORTH IN THE CITY CHARTER WITH
REGARD TO THE NOMINATING PANEL.  FINALLY, DESPITE THE PRAYER IN THEIR
COMPLAINT FOR AN ORDER DIRECTING THE APPOINTMENT OF A PANEL "FAIRLY
REPRESENTATIVE OF THE RACIAL COMPOSITION OF THE SCHOOL COUMMUNITY . . .
,"  RESPONDENTS DISCLAIMED ANY EFFORT TO IMPOSE A RACIAL QUOTA ON THE
MAYOR IN HIS APPOINTMENTS TO THE PANEL.  /8/  RESPONDENTS SOUGHT SOLELY
TO ESTABLISH THAT THE MAYOR UNCONSTITUTIONALLY EXCLUDED QUALIFIED
NEGROES FROM CONSIDERATION FOR MEMBERSHIP ON THE NOMINATING PANEL AND
TO REMEDY THAT ALLEGED DEFECT PROSPECTIVELY AS WELL AS
RETROSPECTIVELY.  /9/ 

FOLLOWING TWO DAYS OF HEARINGS, THE DISTRICT COURT DISMISSED
RESPONDENTS' COMPLAINTS.  EDUCATIONAL EQUALITY LEAGUE V. TATE, 333 F.
SUPP. 1202 (ED PA. 1971).  IN ITS FINDINGS OF FACT, THE COURT NOTED
THAT APPROXIMATELY 34% OF THE POPULATION OF PHILADELPHIA AND
APPROXIMATELY 60% OF THE STUDENTS ATTENDING THE CITY'S VARIOUS SCHOOLS
WERE NEGROES.  ID., AT 1202 - 1204.  THE COURT FOUND THE FOLLOWING
RACIAL COMPOSITION OF THE NOMINATING PANELS FROM 1965 TO 1971: THE 1965
PANEL HAD 10 WHITES AND THREE NEGROES; THE 1967 PANEL HAD 11 WHITES AND
TWO NEGROES; THE 1969 PANEL HAD 12 WHITES AND ONE NEGROES.  /10/  ID.,
AT 1204.  THE COURT FURTHER FOUND THAT "SEVERAL ORGANIZATIONS
REFLECTING THE VIEWS AND PARTICIPATION OF THE BLACK COMMUNITY" COULD
QUALIFY AS ORGANIZATIONS WHOSE HIGHEST RANKING OFFICERS MIGHT SERVE ON
THE NOMINATING PANEL.  IBID.  THE COURT ALSO FOUND THAT DEPUTY MAYOR
ZECCA, THE PERSON ASSIGNED BY MAYOR TATE TO ASSIST IS SELECTING
QUALIFYING ORGANIZATIONS AND INSTITUTIONS, AT THE TIME OF THE HEARING
WAS UNAWARE OF THE EXISTENCE OF MANY OF THESE "BLACK ORGANIZATIONS." 
IBID. 

ON THE BASIS OF ITS FINDING OF FACT, THE DISTRICT COURT CONCLUDED
THAT RESPONDENTS HAD FAILED TO PROVE THAT THE 1971 PANEL WAS APPOINTED
IN VIOLATION OF THE FOURTEENTH AMENDMENT.  IT HELD THAT DIFFERENCES
BETWEEN THE PERCENTAGE OF NEGROES IN THE CITY'S POPULATION (34%) OR IN
THE STUDENT BODY OF THE PUBLIC SCHOOL SYSTEM (60%) AND THE PERCENTAGE
OF NEGROES ON THE 1971 NOMINATING PANEL (15%) HAD NO SIGNIFICANCE. 
ID., AT 1205 - 1207.  IN LARGE PART THIS WAS BECAUSE THE NUMBER OF
POSITIONS ON THE PANEL WAS TOO SMALL TO PROVIDE A RELIABLE SAMPLE; THE
ADDITION OR SUBTRACTION OF A SINGLE NEGRO MEANT AN 8% CHANGE IN RACIAL
COMPOSITION.  ID., AT 1206.  THE COURT ALSO REJECTED AS UNRELIABLE DATA
SUBMITTED BY RESPONDENTS IN AN EFFORT TO SHOW THAT MAYOR TATE'S
APPOINTMENTS TO VARIOUS POSITIONS IN CITY GOVERNMENT OTHER THAN THE
PANEL REFLECTED A DISPROPORTIONATELY LOW PERCENTAGE OF NEGROES AND A
PATTERN OF DISCRIMINATION.  IBID. MOREOVER, THE COURT DISMISSED AS
INADMISSABLE HEARSAY A 1969 NEWSPAPER ACCOUNT OF AN ALLEGED STATEMENT
BY MAYOR TATE THAT AT THAT TIME HE WOULD APPOINT NO MORE NEGROES TO THE
SCHOOL BOARD.  IBID. 

THE COURT OF APPEALS FOR THE THIRD CURCUIT REVERSED.  EDUCATIONAL
EQUALITY LEAGUE V. TATE, 472 F.2D 612 (1973).  /11/  RELYING ON
STATISTICAL DATA ABOUT THE PANEL REJECTED BY THE DISTRICT COURT AND
GOING OUTSIDE THAT COURT'S FINDINGS OF FACT IN OTHER RESPECTS, THE
COURT OF APPEALS CONCLUDED THAT RESPONDENTS HAD ESTABLISHED AN
UNREBUTTED PRIMA FACIE CASE OF UNLAWFUL EXCLUSION OF NEGROES FROM
CONSIDERATION FOR SERVICE ON THE 1971 PANEL.  ID., AT 618.  MOREOVER,
ALTHOUGH THE MAYOR'S OFFICE HAD CHANGED HANDS WHILE THE CASE WAS SUB
JUDICE AND ALTHOUGH THERE WAS NOTHING IN THE RECORD ADDRESSED TO THE
APPOINTMENT PRACTICES OF THE NEW MAYOR WITH REGARD TO THE NOMINATING
PANEL, THE COURT OF APPEALS DIRECTED THE ISSUANCE OF EXTENSIVE
INJUNCTIVE RELIEF AGAINST THE NEW MAYOR.  ID., AT 619.  IN PARTICULAR,
THE COURT OF APPEALS ORDERED THE DISTRICT COURT TO UNDERTAKE AN ONGOING
SUPERVISION OF THE NEW MAYOR'S APPOINTMENTS TO THE 1973 

WE GRANTED THE MAYOR'S PETITION FOR CERTIORARI 411 U.S. 964 (1973). 
WE CONCLUDE THAT THE COURT OF APPEALS ERRED IN OVERTURNING THE DISTRICT
COURT'S FINDINGS AND CONCLUSIONS.  WE ALSO HOLD THAT IT ERRED IN
ORDERING PROSPECTIVE INJUNCTIVE RELIEF AGAINST THE NEW MAYOR IN A CASE
DEVOTED EXCLUSIVELY TO THE PERSONAL APPOINTMENT POLICIES OF HIS
PREDECESSOR. 

        I 

THE MAYOR'S PRINCIPAL CONTENTION IS THAT JUDICIAL REVIEW OF THE
DISCRETIONARY APPOINTMENTS OF AN EXECUTIVE OFFICER CONTRAVENES BASIC
SEPARATION-OF-POWERS PRINCIPLES.  THE MAYOR CITES CASES CONCERNING
DISCRETIONARY APPOINTMENTS IN THE FEDERAL EXECUTIVE BRANCH, SUCH AS
MARBURY V. MADISON, 1 CRANCH 137 (1803), AND MYERS V. UNITED STATES,
272 U.S. 52 (1926).  HE NOTES THAT PENNSYLVANIA, LIKE THE FEDERAL
GOVERNMENT, HAS A TRIPARTITE GOVERNMENTAL STRUCTURE, AND HE ARGUES THAT
THE PRINCIPLES SHAPING THE APPROPRIATE SCOPE OF JUDICIAL REVIEW ARE THE
SAME AT THE STATE LEVEL AS AT THE FEDERAL LEVEL. 

NEITHER THE DISTRICT COURT NOR THE COURT OF APPEALS ADDRESSED THIS
ARGUMENT AT LENGTH.  THE DISTRICT COURT EXPRESSED ITS "RESERVATIONS"
ABOUT EXERTING CONTROL OVER "AN ELECTED CHIEF EXECUTIVE IN THE EXERCISE
OF HIS DISCRETIONARY APPOINTIVE POWER.  . .," 333 F. SUPP., AT 1206,
BUT THAT COURT BASED ITS DISMISSAL OF RESPONDENTS' COMPLAINT ON THE
ABSENCE OF PROOF OF DISCRIMINATION.  THE COURT OF APPEALS BRUSHED ASIDE
THE "RESERVATIONS" OF THE DISTRICT COURT, CONCLUDING THAT THE
NOMINATING PANEL WAS NOT INTENDED TO OPERATE AS PART OF THE MAYOR'S
STAFF AND THUS THAT THE APPOINTMENTS WERE NOT DISCRETIONARY.  472 F.2D,
AT 617.  AND, ALTHOUGH NINE OF THE SEATS ON THE PANEL ARE SUBJECT TO
RESTRICTIVE QUALIFICATIONS EMBODIED IN THE CITY CHARTER, WHICH ARE NOT
CHALLENGED BY RESPONDENTS, THE COURT OF APPEALS PROCEEDED AS THOUGH
THIS WERE A CASE WHERE ACCESS TO PARTICIPATION IN A GOVERNMENTAL OR
OTHER ENTITY OR FUNCTION IS OPEN TO ALL CITIZENS EQUALLY.  DRAWING BY
ANALOGY FROM CASES DEALING WITH SUCH INCIDENTS OF CITIZENSHIP AS JURY
SERVICE AND THE RIGHT TO NONDISCRIMINATION IN EMPLOYMENT, E.G., TURNER
V. FOUCHE, 396 U.S. 346 (1970), AND SMITH V. YEAGER, 465 F.2D 272
(CA3), CERT. DENIED, SUB NOM. NEW JERSEY V. SMITH, 409 U.S. 1076
(1972), THE COURT DECLARED THAT "A PRIMA FACIE CASE IS ESTABLISHED BY A
DEMONSTRATION THAT BLACKS WERE UNDER-REPRESENTED (ON THE PANEL) AND
THAT THERE WAS AN OPPORTUNITY FOR RACIAL DISCRIMINATION."  472 F.2D, AT
618. 

WE DISAGREE WITH THE COURT OF APPEALS' CONCLUSION THAT THE
APPOINTMENTS AT ISSUE ARE NOT DISCRETIONARY.  THE COURT'S VIEW THAT THE
PANEL IS NOT A PART OF THE STAFF OF THE MAYOR IS NOT SELF-EVIDENT, AS
WE UNDERSTAND THE FUNCTIONS OF THE PANEL.  BUT IN ANY EVENT THIS IS
IRREVELANT TO WHETHER THE MAYOR'S POWER TO APPOINT THE PANEL IS
DISCRETIONARY.  EXECUTIVE OFFICERS ARE OFTEN VESTED WITH DISCRETIONARY
APPOINTMENT POWERS OVER OFFICIALS WHO BY NO STRETCH OF THE IMAGINATION
ARE MEMBERS OF THE STAFF OF THE APPOINTING OFFICER.  THE APPOINTMENTOF
JUDGES IS A FAMILIAR EXAMPLE.  LIKEWISE, THE APPOINTMENTS TO THE PANEL
ARE DISCRETIONARY BY ANY REASONABLE MEASURE.  WITH REGARD TO THE FOUR
SEATS ON THE PANEL DEVOTED TO THE CITIZENRY AT LARGE, THE CITY CHARTER
HOLDS THE MAYOR ACCOUNTABLE ONLY AT THE POLLS.  AND, ALTHOUGH THE
CHARTER NARROWS THE MAYOR'S RANGE OF CHOICE IN FILLING THE OTHER NINE
SEATS, IT REMAINS TRUE THAT THE FINAL SELECTION OF THE MEMBERSHIP OF
THE PANEL RESTS WITH THE MAYOR, SUBJECT ALWAYS TO THE OVERSIGHT OF THE
VOTERS. 

IT IS ALSO OUR VIEW THAT THE COURT OF APPEALS DID NOT ASSIGN
APPROPRIATE WEIGHT TO THE CONSTITUTIONAL CONSIDERATIONS RAISED BY THE
MAYOR.  TO BE SURE, THE MAYOR'S RELIANCE ON FEDERAL SEPARATION-OF
POWERS PRECEDENTS IS IN PART MISPLACED, BECAUSE THIS CASE, UNLIKE THOSE
AUTHORITIES, HAS NOTHING TO DO WITH THE TRIPARTITE ARRANGEMENT OF THE
FEDERAL CONSTITUTION.  /13/  BUT, TO THE DEGREE THAT THE PRINCIPLES
CITED BY THE MAYOR REFLECT CONCERN THAT JUDICIAL OVERSIGHT OF
DISCRETIONARY APPOINTMENTS MAY INTERFERE WITH THE ABILITY OF AN ELECTED
OFFICIAL TO RESPOND TO THE MANDATE OF HIS CONSTITUENCY, THEY ARE IN
POINT.  THERE ARE ALSO DELICATE ISSUES OF FEDERAL-STATE RELATIONSHIPS
UNDERLYING THIS CASE.  THE FEDERALISM QUESTIONS ARE MADE PARTICULARLY
COMPLEX BY THE INTERPLAY OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, WITH ITS SPECIAL REGARD FOR THE STATUS OF THE
RIGHTS OF MINORITY GROUPS AND FOR THE ROLE OF THE FEDERAL GOVERNMENT IN
PROTECTING THOSE RIGHTS.  THE DIFFICULTY OF THE ISSUES AT STAKE HAS
BEEN ALLUDED TO BY THE COURT, WITHOUT ELABORATION, AS RECENTLY AS IN
CARTER V. JURY COMM'N OF GREENE COUNTY, 396 U.S. 320 (1970).  CARTER
CONCERNED A STATE GOVERNOR'S ALLEGED DISCRIMINATORY EXCLUSION OF
NEGROES IN HIS DISCRETIONARY APPOINTMENTS TO A COUNTY JURY COMMISSION. 
THE COURT FOUND ON THE RECORD AN ABSENCE OF PROOF OF DISCRIMINATION,
BUT IT NEVERTHELESS RECOGNIZED "THE PROBLEMS THAT WOULD BE INVOLVED IN
A FEDERAL COURT'S ORDERING THE GOVERNOR OF A STATE TO EXERCISE HIS
DISCRETION IN A PARTICULAR WAY . . . ."  ID., AT 338.  /14/ 

WERE WE TO CONCLUDE THAT RESPONDENTS HAD ESTABLISHED RACIAL
DISCRIMINATION IN THE SELECTION PROCESS FOR THE PANEL, WE WOULD BE
COMPELLED TO ADDRESS THE "PROBLEMS" NOTED IN CARTER, SUPRA, AND RAISED
BY THE MAYOR.  WE NEED NOT GO SO FAR, HOWEVER, BECAUSE WE FIND THAT
THIS CASE FOUNDERS ON AN ABSENCE OF PROOF, EVEN UNDER THE APPROACH
TAKEN BY THE COURT OF APPEALS.             II 

THE COURT OF APPEALS BOTTOMED ITS CONCLUSION THAT THE FOURTEENTH
AMENDMENT HAD BEEN VIOLATED ON THREE INDICIA, ONLY ONE OF WHICH WAS
BASED ON A FINDING BY THE DISTRICT COURT.  WHETHER TAKEN SINGLY OR IN
COMBINATION, THESE FACTORS PROVIDE NO ADEQUATE BASIS FOR THE COURT'S
CONCLUSION THAT RESPONDENTS HAD ESTABLISHED A PRIMA FACIE CASE OF
RACIAL DISCRIMINATION. 

FIRST, THE COURT OF APPEALS RELIED ON AN ALLEGED STATEMENT BY MAYOR
TATE IN 1969 THAT IN FILLING THE VACANCIES THEN OPEN ON THE SCHOOL
BOARD HE WOULD APPOINT NO NEGROES IN ADDITION TO THE TWO ALREADY ON IT.
472 F.2D, AT 615 - 616.  RESPONDENTS PRESENTED TWO ITEMS AS EVIDENCE
OF THIS STATEMENT.  DURING CROSS-EXAMINATION OF DEPUTY MAYOR ZECCA,
COUNSEL FOR RESPONDENTS DIRECTED MR. ZECCA'S ATTENTION TO A 1969
NEWSPAPER ARTICLE DEALING WITH THE ALLEGED STATEMENT.  DEPUTY MAYOR
ZECCA DENIED THE ACCURACY OF THE NEWSPAPER ACCOUNT, /15/  THE DISTRICT
COURT RULED THAT THE NEWSPAPER ACCOUNTS WAS INADMISSIBLE HEARSAY.  /16/
THE COURT OF APPEALS MADE NO MENTION OF THIS NEWSPAPER ACCOUNT. 
RATHER, ALTHOUGH NOTING THAT THE DISTRICT COURT HAD MADE NO FINDING ON
THE SUBJECT, THE COURT FOCUSED ON THE TESTIMONY OF ONE OF RESPONDENTS'
WITNESSES THAT MAYOR TATE HAD MADE THE 1969 STATEMENT.  /17/  THE COURT
APPARENTLY ASSUMED THE TRUTH OF THE STATEMENT, FOR IT DECLARED THAT THE
TESTIMONY WAS MADE "WITHOUT CONTRADICTION OR OBJECTION . . . ."  /18/
ALLEGED 1969 STATEMENT WAS MISPLACED.  ASSUMING THE ADMISSIBILITY AND
RELIABILITY OF SUCH DOUBLE HEARSAY, /19/  WE ARE UNABLE TO CONCLUDE
THAT AN AMBIGUOUS STATEMENT PURPORTEDLY MADE IN 1969 WITH REGARD TO THE
RACIAL COMPOSITION OF THE THEN SCHOOL BOARD PROVES ANYTHING WITH REGARD
TO THE MAYOR'S MOTIVES TWO YEARS LATER IN APPOINTING THE 1971
NOMINATING PANEL.THE COURT OF APPEALS NOTED THAT IF THE MAYOR HAD IN
1969 DECIDED TO EXCLUDE NEGRO NOMINEES FROM APPOINTMENT TO THE BOARD,
"AN INFERENCE MAY BE DRAWN THAT THE MAYOR IN SIMILAR MANNER EXCLUDED
BLACKS FROM CONSIDERATION AS MEMBERS 472 F.2D, AT 616 N. 9.  THAT
INFERENCE IS SUPPOSITION.  IT CANNOT BE VIEWED AS PROBATIVE OF A FUTURE
INTENT TO DISCRIMINATE ON THE BASIS OF RACE WITH REGARD TO A DIFFERENT
GOVERNMENTAL ENTITY.  FURTHERMORE, IT IS REFUTED BY THE FACT THAT THE
MAYOR LATER APPOINTED NEGROES TO THE 1971 PANEL AND, FOR THAT MATTER,
TO THE SCHOOL BOARD ITSELF. 

SECOND, THE COURT OF APPEALS CITED THE DISTRICT COURT'S FINDING THAT
DEPUTY MAYOR ZECCA HAD BEEN UNAWARE OF MAY "BLACK-ORIENTED
ORGANIZATIONS" THAT COULD QUALIFY UNDER THE CATEGORIES OF ORGANIZATIONS
AND INSTITUTIONS SET OUT IN THE CITY CHARTER.  472 F.2D, AT 616.  THE
COURT THOUGHT THAT, GIVEN MR. ZECCA'S IMPORTANT POSITION IN THE
APPOINTMENT PROCESS IN 1971, HIS IGNORANCE WOULD "SUPPORT AN INFERENCE
THAT THE SELECTION PROCESS HAD A DISCRIMINATORY EFFECT."  ID., AT N.
13.  THIS IS ANOTHER SPECULATIVE INFERENCE.  DEPUTY MAYOR ZECCA DID NOT
MAKE THE APPOINTMENTS TO THE PANELS.  THE TASK BELONGED TO MAYOR TATE. 
IT IS UNLIKELY THAT AN ELECTED MAYOR WOULD BE IGNORANT OF ANY VIABLE
CITYWIDE ORGANIZATION OR INSTITUTION, PARTICULARLY IF HE HAD HELD
OFFICE FOR A NUMBER OF YEARS.  THUS DEPUTY MAYOR ZECCA'S UNFAMILIARITY
WITH CERTAIN ORGANIZATIONS MAY NOT BE IMPUTED AUTOMATICALLY TO THE
OFFICIAL HOLDING THE APPOINTMENT POWER.  MOREOVER, THERE HAS BEEN NO
SHOWING IN THIS RECORD THAT MR. ZECCA'S UNAWARENESS OF ORGANIZATIONS OR
INSTITUTIONS WAS RESTRICTED TO WHAT THE COURT OF APPEALS REFERRED TO AS
"BLACK-ORIENTED ORGANIZATIONS."  ID., AT 616.  THE DEPUTY MAYOR MAY
WELL HAVE BEEN EQUALLY UNINFORMED OF THE EXISTENCE OF MAY OTHER
PHILADELPHIA ORGANIZATIONS AND GROUPS. 

AS A THIRD INDICATOR OF THE EXCLUSION OF NEGROES, THE COURT OF
APPEALS AGAIN WENT OUTSIDE THE DISTRICT COURT'S FINDINGS.  AS NOTED
EARLIER, THE DISTRICT COURT REJECTED AS UNRELIABLE, PERCENTAGE
COMPARISONS OF THE RACIAL COMPOSITION OF THE PANEL AND OF THE
POPULATION OF PHILADELPHIA.  333 F. SUPP., AT 1206, 1207.  THE COURT OF
APPEALS THOUGHT IT UNFORTUNATE THAT "THE PARTIES DID NOT INTRODUCE THE
EXPERT TESTIMONY OF A STATISTICIAN ON WHETHER THE FREQUENCY OF BLACK
APPOINTMENTS TO THE 13-MEMBER PANEL FELL OUTSIDE THE RANGE TO BE
EXPECTED WERE RACE NOT A FACTOR.  . .," 472 F.2D, AT 618, BUT
NEVERTHELESS FOUND THE SMALL PROPORTION OF NEGROES ON THE PANEL
"SIGNIFICANT."  IBID.  THIS LED THE COURT TO CONCLUDE THAT "THE SMALL
PROPORTION OF BLACKS ON THE PANEL POINTS TOWARD THE POSSIBILITY OF
DISCRIMINATION."  IBID. 

STATISTICAL ANALYSES HAVE SERVED AND WILL CONTINUE TO SERVE AN
IMPORTANT ROLE AS ONE INDIRECT INDICATOR OR RACIAL DISCRIMINATION IN
ACCESS TO SERVICE ON GOVERNMENTAL BODIES, PARTICULARLY WHERE, AS IN THE
CASE OF JURY SERVICE, THE DUTY TO SERVE FALLS EQUALLY ON ALL CITIZENS. 
E.G., CARTER V. JURY COMM'N OF GREENE COUNTY 396 U.S. 321 (1970);
HERNANDEZ V. TEXAS, 347 U.S. 475 (1954);AVERY V. GEORGIA, 345 U.S. 559
(1953).  SEE MCDONNELL DOUGLAS CORP. V. GREEN, 411 U.S. 792, 805 (1973)
(EMPLOYMENT DISCRIMINATION).  BUT THE SIMPLISTIC PERCENTAGE COMPARISONS
UNDERTAKEN BY THE COURT OF APPEALS LACK REAL MEANING IN THE CONTEXT OF
THIS CASE.  RESPONDENTS DO NOT CHALLENGE THE QUALIFICATIONS FOR SERVICE
ON THE PANEL SET OUT IN THE CHARTER, WHEREBY NINE OF THE 13 SEATS ARE
RESTRICTED TO THE HIGHEST RANKING OFFICERS OF DESIGNATED CATEGORIES OF
CITYWIDE ORGANIZATIONS AND INSTITUTIONS.  ACCORDINGLY, THIS IS NOT A
CASE IN WHICH IT CAN BE ASSUMED THAT ALL CITIZENS ARE FUNGIBLE FOR
PURPOSES OF DETERMINING WHETHER MEMBERS OF A PARTICULAR CLASS HAVE BEEN
UNLAWFULLY EXCLUDED.  AT LEAST WITH REGARD TO NINE SEATS ON THE PANEL
AND ASSUMING, ARGUENDO, THAT PERCENTAGE COMPARSONS ARE MEANINGFUL IN A
CASE INVOLVING DISCRETIONARY APPOINTMENTS, THE RELEVANT UNIVERSE FOR
COMPARISON PURPOSES CONSISTS OF THE HIGHEST RANKING OFFICERS OF THE
CATEGORIES OF ORGANIZATIONS AND INSTITUTIONS SPECIFIED IN THE CITY
CHARTER, NOT THE POPULATION AT LARGE.  THE COURT OF APPEALS OVERLOOKED
THIS DISTINCTION.  FURTHERMORE, THE DISTRICT COURT'S CONCERN FOR THE
SMALLNESS OF THE SAMPLE PRESENTED BY THE 13-MEMBER PANEL WAS ALSO WELL
FOUNDED.  THE COURT OF APPEALS ERRED IN FAILING TO RECOGNIZE THE
IMPORTANCE OF THIS FLAW IN STRAIGHT PERCENTAGE COMPARISONS. 

IN SUM, THE COURT OF APPEALS' FINDING OF RACIAL DISCRIMINATION RESTS
ON AMBIGUOUS TESTIMONY AS TO AN ALLEGED STATEMENT IN 1969 BY THEN MAYOR
TATE WITH REGARD TO THE 1969 SCHOOL BOARD, NOT THE 1971 PANEL; THE
UNAWARENESS OF CERTAIN ORGANIZATIONS ON THE PART OF A CITY OFFICIAL WHO
DID NOT HAVE FINAL AUTHORITY OVER OR RESPONSIBILITY FOR THE CHALLENGED
APPOINTMENTS; AND RACIAL-COMPOSITION PERCENTAGE COMPARISONS THAT WE
THINK WERE CORRECTLY REJECTED BY THE DISTRICT COURT AS MEANINGLESS.  IN
OUR VIEW, THIS TYPE OF PROOF IS TOO FRAGMENTARY AND SPECULATIVE TO
SUPPORT A SERIOUS CHARGE IN A JUDICIAL PROCEEDING.  /20/

        III 

THE COURT OF APPEALS PREFACED ITS DISCUSSION OF APPROPRIATE RELIEF
BY NOTING THAT IT WOULD BE "THE DISTRICT COURT'S FUNCTION TO DETERMINE
THE PRECISE NATURE OF THE RELIEF TO WHICH (RESPONDENTS) ARE ENTITLED." 
472 F.2D, AT 618.  NEVERTHELESS, THE COURT HELD, IN PART, THAT THE
DISTRICT COURT "SHOULD ENJOIN THE PRESENT MAYOR FROM DISCRIMINATING IN
REGARD TO THE 1973 OR FUTURE PANELS AND SHOULD REQUIRE THAT BEFORE THE
1973 PANEL IS SELECTED, THE MAYOR OR HIS STAFF SUBMIT TO THE COURT
EVIDENCE THAT ORGANIZATIONS IN THE BLACK COMMUNITY . . . HAVE RECEIVED
PROPER CONSIDERATION."  ID., AT 619.  (FOOTNOTE OMITTED.) 

MAYOR TATE WAS SUCCEEDED BY MAYOR RIZZO ON JANUARY 3, 1972.  THE
COURT OF APPEALS ISSUED ITS OPINION ON JANUARY 11, 1973.  ACCORDINGLY,
THE INJUNCTIVE ORDERS MANDATED BY THE COURT WITH REGARD TO THE 1973 AND
FUTURE PANELS WOULD HAVE RUN AGAINST MAYOR RIZZO, NOT MAYOR TATE.  AS
ITS SOLE REASON FOR DIRECTING SUCH RELIEF AGAINST MAYOR RIZZO, THE
COURT OF APPEALS NOTED THAT MR. ZECCA CONTINUED AS DEPUTY MAYOR UNDER
THE RIZZO ADMINISTRATION.  ID., AT 619 N. 21.  BUT PETITIONER ALLEGES,
AND RESPONDENTS DO NOT DENY, THAT UNDER MAYOR RIZZO'S STEWARDSHIP, MR.
ZECCA NO LONGER HAS ANY RESPONSIBILITY WITH REGARD TO PANEL
APPOINTMENTS.  MOREOVER, THE ENTIRE CASE HAS BEEN FOCUSED ON THE
APPOINTMENTS MADE BY MAYOR TATE.  NOTHING IN THE RECORD SPEAKS TO THE
APPOINTMENT POLICIES OF MAYOR RIZZO WITH REGARD TO THE PANEL.  THUS,
THE RECORD DOES NOT SUPPORT THE PREMISE THAT MAYOR RIZZO'S APPOINTMENT
RECORD FOR THE PANEL WILL TRACK THAT OF HIS PREDECESSOR. 

WHERE THERE HAVE BEEN PRIOR PATTERNS OF DISCRIMINATION BY THE
OCCUPANT OF A STATE EXECUTIVE OFFICE BUT AN INTERVENING CHANGE IN
ADMINISTRATION, THE ISSUANCE OF PROSPECTIVE COERCIVE RELIEF AGAINST THE
SUCCESSOR TO THE OFFICE MUST REST, AT A MINIMUM, ON SUPPLEMENTAL
FINDINGS OF FACT INDICATING THAT THE NEW OFFICER WILL CONTINUE THE
PRACTICES OF HIS PREDECESSOR.  E.G., SPOMER V. LITTLETON, 414 U.S. 514
(1974).  THE COURT OF APPEALS DID NOT HAVE THE BENEFIT OF SUCH FINDINGS
AT THE TIME IF INSTRUCTED THE DISTRICT COURT TO ENTER INJUNCTIVE RELIEF
AGAINST MAYOR RIZZO WITH REGARD TO FUTURE PANELS.  THE COURT OF APPEALS
THEREFORE ERRED IN ITS DECISION ON REMEDIES, AS WELL AS IN CONCLUDING
THAT RESPONDENTS HAD ESTABLISHED A VIOLATION OF THE FOURTEENTH
AMENDMENT. 

        IV 

WE TURN, FINALLY, TO THE DISSENT'S ARGUMENT THAT THIS CASE SHOULD BE
REMANDED TO THE DISTRICT COURT FOR RESOLUTION OF STATE LAW ISSUES UNDER
THE COURT'S PENDENT JURISDICTION OR, IN THE ALTERNATIVE, FOR ABSTENTION
SO THAT THE CASE MAY BE TRIED FROM SCRATCH IN STATE COURT.  THIS
APPROACH IGNORES WHAT THE PARTIES HAVE BRIEFED AND ARGUED BEFORE US,
ESPOUSES ON BEHALF OF RESPONDENTS STATES LAW CLAIMS OF BARELY COLORABLE
RELEVANCE TO THE INSTANT SUIT, AND WOULD PRODUCE A RESULT INCONSISTENT
WITH A COMMONSENSE APPLICATION OF THE PENDENT JURISDICTION AND
ABSTENTION DOCTRINES. 

AS THE DISSENT CONCEDES, POST, AT 642, ITS STATE LAW ARGUMENTS WERE
NEITHER RAISED IN THE PETITION, ARGUED IN THE BRIEFS, NOR ARTICULATED
IN ORAL ARGUMENT BEFORE THIS COURT.  TO ADDRESS THEM WOULD REQUIRE US
TO DISREGARD THE ADMONITION OF SUPREME COURT RULE 23.1 (C) THAT "(ONLY
THE QUESTIONS SET FORTH IN THE PETITION OR FAIRLY COMPRISED THEREIN
WILL BE CONSIDERED BY THE COURT."  SEE ALSO, E.G., MAZER V. STEIN, 347
U.S. 201, 206 N. 5 (1954); NATIONAL LICORICE CO. V. NLRB, 309 U.S. 350,
357 N. 2 (1940); GENERAL TALKING PICTURES CORP. V. WESTERN ELECTRIC
CO., 304 U.S. 175, 177 - 178 (1938).  MOREOVER, THE ASSERTION THAT
PENDENT JURISDICTION IS APPROPRIATE AND THAT PENDENT STATE CLAIMS
SHOULD BE DECIDED FIRST PRESUMES THAT THE STATE CLAIMS HAVE COLOR AND
MAKE IT POSSIBLE FOR THE CASE TO BE "DECIDED WITHOUT REFERENCE TO
QUESTIONS ARISING UNDER THE FEDERAL CONSTITUTION . . . ."  SILER V.
LOUISVILLE & NASHVILLE R. CO., 213 U.S. 175, 193 (1909).  THAT IS NOT
TRUE HERE.  IN THEIR COMPLAINT, RESPONDENTS SET OUT THE FOLLOWING FOUR
POINTS OF STATE LAW AND NO OTHERS: THAT THE 1971 PANEL WAS CONVENED ON
MAY 28, WHEREAS THE CHARTER REQUIRED MAY 25; THAT THE MAYOR APPOINTED
THE CHAIRMAN OF THE PANEL, ALTHOUGH THE CHARTER ALLEGEDLY RESTRICTS
THAT APPOINTMENT RESPONSIBILITY TO THE PANEL ITSELF; THAT ONE OF THE
MAYOR'S APPOINTEES WAS NOT THE HIGHEST RANKING OFFICER OF THE
ORGANIZATION HE REPRESENTED; AND THAT THE MAYOR APPOINTED CERTAIN CITY
OFFICIALS TO THE PANEL, IN ALLEGED CONTRAVENTION OF THE CHARTER.  A
DECISION FOR RESPONDENTS ON ALL OF THESE ISSUES WOULD NOT HAVE
APPROACHED RESOLVING THE CASE NOR WOULD IT HAVE PROVIDED A BASIS FOR
GRANTING THE RELIEF TO WHICH RESPONDENTS LAID CLAIM.  THESE STATE LAW
CLAIMS WERE WHOLLY TANGENTIAL TO THE PRINCIPLE THEME OF RESPONDENTS'
LAWSUIT -- AN ALLEGED VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  IT IS HARDLY SURPRISING THAT RESPONDENTS HAVE
NOT PURSUED THESE CALIMS AT EITHER STAGE OF APPELLATE REVIEW.  IN FACT,
RESPONDENTS SCARCELY ADDRESSED THEM IN DISTRICT COURT. 

AT THE OPENING OF THE EVIDENTIARY HEARINGS, THE DISTRICT COURT ASKED
COUNSEL FOR RESPONDENTS TO DESCRIBE THE BASIS OF THE SUIT.  COUNSEL
RESPONDED THAT "THE SINGLE ISSUE IN THE CASE, AS WE HAVE PRESENTED IT,
IS WHETHER THERE HAS BEEN RACIAL DISCRIMINATION IN VIOLATION OF THE
FOURTEENTH AMENDMENT IN THE COMPOSITION OF THE NOMINATING PANEL."  TR.,
AUG. 25, 1971, P. 4.  THERE COULD BE NO CLEARER STATEMENT THAT A
LITIGANT'S CASE TURNS ON FEDERAL, RATHER THAN STATE LAW.  AND
RESPONDENTS PRESENTED THEIR CASE, AS THEY HAD DRAFTED THEIR COMPLAINT,
ESSENTIALLY AS AN EXPOSITION OF FEDERAL LAW.  TO IGNORE ALL OF THIS AND
TO COMPEL THE DISTRICT COURT NOW TO DECIDE NONDISPOSITIVE STATE LAW
QUESTIONS WOULD REQUIRE A UNIQUE READING OF THE PENDENT JURISDICTION
DOCTRINE.  COUNSEL'S CHARACTERIZATION OF THE SUIT BEFORE THE DISTRICT
COURT, AND THE ALMOST EXCLUSIVELY FEDERAL CHARACTER OF THE RECORD, THE
DISSENT ATTRIBUTES TO RESPONDENTS AN INDEPENDENT STATE LAW ARGUMENT
THAT THE CHARTER REQUIRED "A BALANCED RACIAL COMPOSITION ON THE PANEL
AS A WHOLE.  . . ."  (EMPHASIS ADDED.)  POST, AT 638.  IN OUR VIEW,
THIS IS A MISREADING OF THE RECORD.  MIDWAY THROUGH THE HEARING, THE
DISTRICT COURT ASKED RESPONDENTS WHETHER THEY WERE ASSERTING A CLAIM
UNDER THE LANGUAGE OF THE CHARTER.  RESPONDENTS' COUNSEL REPLIED IN A
MANNER THAT MAKES CLEAR THAT HE VIEWED THE CHARTER AS MERELY SUPPORTIVE
OF THE FEDERAL LAW CLAIM AND AS A PART ONLY OF A GENERAL "PICTURE" OR
"IMAGE" OF RACIAL DISCRIMINATION, NOT AS AN INDEPENDENT REQUIREMENT OF
RACIAL BALANCE ON THE PANEL AS A WHOLE.  /21/ 

A RELUCTANCE BY RESPONDENTS TO ASSERTAN INDEPENDENT CLAIM THAT THE
CHARTER REQUIRES RACIAL BALANCE ON THE WHOLE PANEL IS NOT SURPRISING IF
ONE FOCUSES ON THE LANGUAGE OF THE CHARTER ITSELF.  THE ONLY
CONCEIVABLY PERTINENT PROVISION IS 12 - 206 (C): 

IN ORDER TO REPRESENT ADEQUATELY THE ENTIRE COMMUNITY, THE FOUR

  OTHER MEMBERS OF THE EDUCATIONAL NOMINATING PANEL SHALL BE

  APPOINTED BY THE MAYOR FROM THE CITIZENRY AT LARGE."  (EMPHSIS

  ADDED.) 

AS SHOULD BE IMMEDIATELY APPARENT, THE EMPHASIZED PHRASE, ON WHICH THE
DISSENT RELIES AND WHICH IT APPARENTLY VIEWS AS A REQUIREMENT OF RACIAL
BALANCE, SPEAKS ONLY TO THE FOUR AT-LARGE SEATS.  THE PHRASE DOES NOT
ADDRESS THE NINE SEATS RESTRICTED TO THE HEAD OF DESIGNATED CATEGORIES
OF CITYWIDE ORGANIZATIONS AND THUS PLAINLY DOES NOT ADDRESS THE PANEL
"AS A WHOLE."  THUS ASSUMING THE LANGUAGE IS CAPABLE OF CARRYING THE
MEANING THAT THE DISSENT WOULD IMPORT TO IT AND OVERLOOKING THE FACT
THAT RESPONDENTS DID NOT SET IT OUT AS AN INDEPENDENT GROUND IN THEIR
COMPLAINT OR ELSEWHERE, THE PROVISION IS SIMPLY INCAPABLE OF RESOLVING
A LAWSUIT ADDRESSED AT ALL 13 SEATS ON THE PANEL.  AS THE DISTRICT
COURT NOTED, "FAILING TO APPOINT AT-LARGE MEMBERS TO ADEQUATELY
REPRESENT THE ENTIRE COMMUNITY (IS) NOT RELEVANT IN DETERMINING WHETHER
RACIAL DISCRIMINATION WAS INVOLVED WITH THE APPOINTMENTS (TO THE PANEL)
. . . ."  333 F. SUPP., AT 1207.  /22/    WE ALSO BELIEVE THAT THE
DISSENT'S VIEW OF PENDENT JURISDICTION AS SOMETHING AKIN TO SUBJECT
MATTER JURISDICTION THAT MAY BE RAISED SUA SPONTE AT ANY STAGE AND THAT
IS CAPABLE OF ABORTING PRIOR FEDERAL COURT PROCEEDINGS IS A MISREADING
OF THE LAW.  "IT HAS CONSISTENTLY BEEN RECOGNIZED THAT PENDENT
JURISDICTION IS A DOCTRINE OF DISCRETION, NOT OF PLAINTIFF'S RIGHT." 
MINE WORKERS V.  GIBBS, 383 U.S. 715, 726 (1966).  SEE 6 C. WRIGHT & A.
MILLER, FEDERAL PRACTICE AND PROCEDURE 813 (1971).  TO ARGUE THAT THE
DOCTRINE REQUIRES US TO WIPE OUT THREE LEVELS OF FEDERAL COURT
LITIGATION OF A FEDERAL LAW ISSUE ON THE OFF CHANCE THAT A PERIPHERAL
STATE LAW CLAIM HAVE MERIT IGNORES THE COURT'S RECOGNITION THAT THE
DOCTRINE'S "JUSTIFICATION LIES IN CONSIDERATIONS OF JUDICIAL ECONOMY,
CONVENIENCE AND FAIRNESS TO LITIGANTS.  . . ."  GIBBS, SUPRA, AT 726. 
/23/ 

THE DISSENT SUGGESTS IN THE ALTERNATIVE THAT THE DISTRICT COURT BE
DIRECTED TO ABSTAIN WHILE THE PARTIES START THIS CASE ALL OVER AGAIN N
STATE COURTS.THIS PROPOSAL COMES NEARLY THREE YEARS AFTER THE FILING OF
TH COMPLAINT AND WOULD PRODUCE DELAY ATTRIBUTABLE TO ABSTENTION THAT
THE COURT IN RECENT YEARS HAS SOUGHT TO MINIMIZE.  SEE E.G., ENGLAND V.
MEDICAL EXAMINERS, 375 U.S. 411, 425 - 426 (1964) (DOUGLAS, J.,
CONCURRING).  AND ABSTENTION WOULD BE POINTLESS SINCE THE STATE ISSUES
PUT FORWARD BY THE DISSENT ARE PLAINLY INSUFFICIENT TO MERIT SUCH
TREATMENT.  MOREOVER, THE DISSENT'S THEME OF THE "PARAMOUNT CONCERN OF
AVOIDING CONSTITUTIONAL QUESTIONS, WHERE POSSIBLE . . ."  STRIKES A
PARTICULARLY JARRING NOTE IN A CIVIL RIGHTS CASE IN WHICH THE
PLAINTIFF'S ASSERTED THAT "THE SINGLE ISSUE . . . IS WHETHER THERE HAS
BEEN RACIAL DISCRIMINATION IN VIOLATION OF THE FOURTEENTH AMENDMENT.  .
. ."  ALTHOUGH WE HAVE NO OCCASION TO DECIDE THE ISSUE HERE, THERE IS
SUBSTANTIAL AUTHORITY FOR THE PROPOSITION THAT ABSTENTION IS NOT
FAVORED IN AN EQUAL PROTECTION, CIVIL RIGHTS CASE BROUGHT AS WAS THIS
ONE UNDER 42 U.S.C.  1983 AND 28 U.S.C. 1343.  /24/ 

WE ARE IN GENERAL ACCORD, OF COURSE, WITH THE DISSENT'S VIEW OF THE
IMPORTANCE OF THE CONSTITUTIONAL DECISION- AVOIDANCE PRINCIPLES
ARTICULATED BY MR. JUSTICE BRANDEIS IN ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 345 - 348 (1936).  BUT THOSE STANDARDS ARE
SUSCEPTIBLE OF MISUSE.  /25/  AND WE THINK THAT TO COMMENCE
RELITIGATION OF THIS CASE ON AN INSUBSTANTIAL STATE ISSUE ABANDONED BY
THE PARTIES WOULD BE A SERIOUS ABUSE OF THE ASHWANDER STANDARDS.  THERE
SIMPLY IS NOT "PRESENT SOME OTHER GROUND UPON WHICH THE CASE MAY BE
DISPOSED OF."  ID., AT 347. 

THE JUDGMENT IS REVERSED. 

              IT IS SO ORDERED. 

/1/  THE RELEVANT PROVISIONS OF ART. XII OF THE PHILADELPHIA HOME
RULE CHARTER ARE SET FORTH AS AN APPENDIX, INFRA, P. 629 ET SEQ. 

/2/  SECTION 12-206(B) OF ART. XII OF THE PHILADELPHIA HOME RULE
CHARTER PROVIDES: 

"NINE MEMBERS OF THE EDUCATIONAL NOMINATING PANEL SHALL BE THE
HIGHEST RANKING OFFICERS OF CITY-WIDE ORGANIZATIONS OR INSTITUTIONS
WHICH ARE, RESPECTIVELY: 

"(1) A LABOR UNION COUNCIL OR OTHER ORGANIZATION OF UNIONS OF
WORKERS AND EMPLOYES ORGANIZED AND OPERATED FOR THE BENEFIT OF SUCH
WORKERS AND EMPLOYES, 

"(2) A COUNCIL, CHAMBER, OR OTHER ORGANIZATIONS ESTABLISHED FOR THE
PURPOSE OF GENERAL IMPROVEMENT AND BENEFIT OF COMMERCE AND INDUSTRY, 

"(3) A PUBLIC SCHOOL PARENT-TEACHERS ASSOCIATION, 

"(4) A COMMUNITY ORGANIZATION OF CITIZENS ESTABLISHED FOR THE
PURPOSE OF IMPROVEMENT OF PUBLIC EDUCATION, 

"(5) A FEDERATION, COUNCIL, OR OTHERORGANIZATION OF NON-PARTISAN
NEIGHBORHOOD OR COMMUNITY ASSOCIATIONS, 

"(6) A LEAGUE, ASSOCIATION, OR OTHER ORGANIZATION ESTABLISHED FOR
THE PURPOSE OF IMPROVEMENT OF HUMAN AND INTER-GROUP RELATIONS, 

"(7) A NON-PARTISAN COMMITTEE, LEAGUE, COUNCIL, OR OTHER
ORGANIZATION ESTABLISHED FOR THE PURPOSE OF IMPROVEMENT OF
GOVERNMENTAL, POLITICAL, SOCIAL, OR ECONOMIC CONDITIONS, 

"(8) A DEGREE-GRANTING INSTITUTION OF HIGHER EDUCATION WHOSE
PRINCIPAL EDUCATIONAL FACILITIES ARE LOCATED WITHIN PHILADELPHIA, AND 

"(9) A COUNCIL, ASSOCIATION, OR OTHER ORGANIZATION DEDICATED TO
COMMUNITY PLANNING OF HEALTH AND WELFARE SERVICES OR OF ANY PHYSICAL
RESOURCES AND ENVIRONMENT OF THE CITY." 

/3/  THE MAYOR MUST ALSO CONVENE THE NOMINATING PANEL WHENEVER A
VACANCY OCCURS ON THE SCHOOL BOARD DUE TO RESIGNATION, REMOVAL, OR
OTHER UNEXPECTED EVENT. 

/4/  THE EDUCATIONAL EQUALITY LEAGUE IS A NONPROFIT CORPORATION
DEVOTED TO SAFEGUARDING THE EDUCATIONAL RIGHTS OF ALL PHILADELPHIA
CITIZENS REGARDLESS OF RACE.  IT WAS FOUNDED IN 1932 AND PRESENTLY HAS
APPROXIAMTELY NINE HUNDRED MEMBERS. 

/5/  EDUCATIONAL EQUALITY LEAGUE V. TATE, 333 F. SUPP. 1202, 1204
(ED PA. 1971); TR. OF ORAL ARG. 14.  IN THEIR COMPLAINT RESPONDENTS
ALLEGED THAT MAYOR TATE HAD DENIED NEGROES "PROPER REPRESENTATION"  ON
THE BOARD.  BUT RESPONDENTS HAVE NOT PURSUED THIS CONTENTION AT ANY
STAGE OF THIS SUIT. 

/6/  COUNSEL FOR RESPONDENTS COMMENTED AT ORAL ARGUMENT THAT
RESPONDENTS "ARE NOT IN ANY WAY ATTACKING THE ACTIONS OF THE PANEL." 
TR. OF ORAL ARG. 44.  SEE ID., AT 24.  THIS APPARENTLY MEANS ONLY THAT
RESPONDENTS DO NOT CONTEND THAT THE 1971 PANEL IN FACT EXCLUDED NEGROES
FROM CONSIDERATION IN RECOMMENDING SCHOOL BOARD NOMINEES TO THE MAYOR. 
IT DOES NOT MEAN THAT RESPONDENTS DO NOT SEEK TO UNDO WHAT THE PANEL
HAS DONE.  INDEED, RESPONDENTS HAVE SOUGHT RELIEF THAT WOULD INVALIDATE
THE NOMINATIONS MADE BY THE PANEL, ON THE THEORY THAT THE PANEL WAS
SELECTED IN VIOLATION OF THE CONSITIUTION AND THAT ITS ACTIONS,
ALTHOUGH NOT DISCRIMINATORY, ARE VOIDABLE.  SEE NN. 9, 12, INFRA. 

/7/  EDUCATION EQUALITY LEAGUE V. TATE SUPRA, AT 1204. 

/8/  TR. OF ORAL ARG. 25.  SEE EDUCATIONAL EQUALITY LEAGUE V. TATE
472 F.2D 612, 626, (CA3 1973). 

/9/  ALTHOUGH RESPONDENTS' SUIT IS ADDRESSED TO THE NOMINATING
PANEL, THE RELIEF THEY SEEK WOULD HAVE AN IMPACT ON THE SCHOOL BOARD AS
WELL.  IN ORDER TO CURE ANY TAINT DERIVING FROM THE ALLEGDLY UNLAWFUL
SELECTION OF THE 1971 PANEL, RESPONDENTS TAKE THE VIEW THAT THE FEDERAL
COURTS SHOULD REMOVE FROM THE BOARD ALL PERSONS NOMINATED BY THAT
PANEL.  TR. OF ORAL ARG. 37, 43 - 44.  GIVEN THE RACIAL MIX OF THE
PRESENT BOARD, THIS WOULD REQUIRE REMOVAL OF NEGROES AS WELL AS
WHITES.  ID., AT 44. 

/10/  MAYOR TATE'S APPOINTMENTS TO THE 1971 PANEL INITIALLY
CONSISTED OF 12 WHITES AND ONE NEGRO.  HOWEVER, AFTER MAYOR TATE
SELECTED THE PRESIDENT OF A PARTICULAR CITYWIDE ORGANIZATION BUT BEFORE
THE 1971 PANEL CONVENED, THE LEADERSHIP OF THE ORGANIZATION CHANGED
HANDS, AND ITS WHITE PRESIDENT WAS REPLACED BY A NEGRO.  THE MAYOR THEN
REAFFIRMED HIS SELECTION OF THAT ORGANIZATION, WHICH PRODUCED THE 11-TO
2 RACIAL MIX OF THE 1971 PANEL. 

/11/  THE COURT OF APPEALS HELD THAT THE NOMINATING PANEL IS NOT A
"PERSON" WITHIN THE MEANING OF 42 U.S.C. 1983, AND IT THEREFORE
AFFIRMED THE DISTRICT COURT'S DISMISSAL OF THE COMPLAINT AS TO THE
PANEL.  472 F.2D, AT 614, NN. 1 AND 4.  RESPONDENTS DO NOT SEEK REVIEW
OF THIS HOLDING, AND WE DO NOT ADDRESS IT. 

/12/  THE COURT OF APPEALS REMANDED TO THE DISTRICT COURT THE
QUESTION OF WHETHER THOSE PERSONS APPOINTED TO THE SCHOOL BOARD FROM
AMONG THE NOMINEES SUBMITTED BY THE 1971 PANEL SHOULD BE REMOVED FROM
OFFICE.  ID., AT 618 N. 20.  IN AN UNSUCCESSFUL PETITION FOR REHEARING
FILED WITH THE COURT OF APPEALS, RESPONDENTS REQUESTED THE COURT TO
MODIFY ITS OPINION "AND SPECIFICALLY DIRECT THE DISTRICT COURT TO USE
APPROPRIATE EQUITABLE REMEDIES TO ASSURE THAT ALL MEMBERS OF THE SCHOOL
BOARD WHO WERE APPOINTED THROUGH THE UNCONSTITUTIONAL PROCESSES
DESCRIBED IN THIS CASE, BE PROMPTLY REPLACED BY PERSONS APPOINTED AS A
RESULT OF A NOMINATING PROCESS WHICH CONFORMS TO THE REQUIREMENTS FO
THE FOURTEENTH AMENDMENT, THESE EQUITABLE REMEDIES TO TAKE INTO ACCOUNT
THE NECESSITY OF HAVING AN OPERATING SCHOOL BOARD AT ALL TIMES." 

/13/  THIS IS NOT TO SAY, OF COURSE, THAT THE STATE OF PENNSYLVANIA
MAY NOT PATTERN ITS GOVERNMENT AFTER THE SCHEME SET FORTH IN THE
FEDERAL CONSTITUTION OR IN ANY OTHER WAY IT SEES FIT.  THE CONSTITUTION
DOES NOT IMPOSE ON THE STATES ANY PARTICULAR PLAN FOR THE DISTRIBUTION
OF GOVERNMENTAL POWERS.  SEE SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 256
(1957) (FRANKFURTER, J., CONCURRING). 

/14/  IN A CONCURRING OPINION IN CARTER, MR. JUSTICE BLACK REVEALED
THAT FOR HIM THESE "PROBLEMS," AS THE COURT PUT IT, WERE CONCLUSIVE. 
"IN MY JUDGMENT THE CONSTITUTION NO MORE GRANTS THIS COURT THE POWER TO
COMPEL A GOVERNOR TO APPOINT OR REJECT A CERTAIN INDIVIDUAL OR A MEMBER
OF ANY PARTICULAR GROUP THAN IT GRANTS THIS COURT THE POWER TO COMPEL
THE VOTERS OF A STATE TO ELECT OR DEFEAT A PARTICULAR PERSON OR A
MEMBER OF A PARTICULAR GROUP."  396 U.S., AT 341.  MR. JUSTICE BLACK'S
VIEWS HAVE NOT, HOWEVER,BEEN ADOPTED BY THE COURT. 

/15/  THE INTERCHANGE BETWEEN COUNSEL FOR RESPONDENTS AND MR. ZECCA
CONCERNING THE 1969 STATEMENT, APP. 91A - 93A, WAS AS FOLLOWS:  "BY MR
WOLF: 

"Q.  MR. ZECCA, WE WERE DISCUSSING EARLIER A STATEMENT BY MAYOR TATE
IN 1969 THAT HE WOULD NOT APPOINT ANY ADDITIONAL NEGROES TO THE SCHOOL
BOARD AND YOU SAID YOU DIDN'T RECALL THAT STATEMENT. 

"A.  I SAID I DON'T THINK THAT HE MADE SUCH A STATEMENT. 

"Q.  WELL, ALL RIGHT. 

"MAY I SHOW YOU A VERY BAD COPY OF A PAGE OF THE PHILADELPHIA
INQUIRER, SATURDAY, MAY 3, 1969, AND THE ARTICLE SAY HE INDICATED,
REFERRING TO THE MAYOR, HE WOULD NOT APPOINT ANOTHER NEGRO TO THE BOARD
BECAUSE THE NEGRO COMMUNITY HAS GOOD REPRESENTATION IN THE TWO NEGROES
NOW SERVING ON THE BOARD. 

"DO YOU RECALL THAT ARTICLE? 

        .         .         .        .         . 

"THE WITNESS: I DON'T RECALL THE ARTICLE SPECIFICALLY BUT IT DOESN'T
SAY HE IS NOT GOING TO NAME ANOTHER MEMBER. 

"IT SAID THAT HE INDICATED THAT HE WOULDN'T NAME ANOTHER MEMBER; AND
THIS IS, OF COURSE, THE REPORTER'S VERSION OF THIS, BUT THE QUOTE SAID
THE NEGRO COMMUNITY HAS GOOD REPRESENTATION IN THE TWO NEGROES NOW
SERVING ON THE BOARD. 

"THEY MAY HAVE ASKED HIM WHETHER HE WAS GOING TO APPOINT ANY MORE
NEGROES TO THE BOARD AND HE SAID THE NEGRO COMMUNITY HAS GOOD
REPRESENTATION ON THE BOARD AS IT IS; JUST LIKE IT HAS EXCELLENT
REPRESENTATION RIGHT IN THIS STORY.  "BY MR. WOLF: 

"Q. YOU DON'T RECALL, HOWEVER, THIS HAVING HAPPENED? 

"A.  NO." 

/16/  333 F. SUPP., AT 1206. 

/17/  UNDER DIRECT EXAMINATION BY RESPONDENTS' COUNSEL, THE WITNESS
TESTIFIED THAT: 

"AT THAT TIME (IN 1969) THE MAYOR MADE A PUBLIC STATEMENT THAT HE
WAS NOT GOING TO APPOINT ANY MORE NEGROES TO THE BOARD BECAUSE, IN HIS
FEELING, THEY HAD ADEQUATE REPRESENTATION AND THAT HE WAS GOING TO
APPOINT SOMEONE FROM THE NOMINEES TO THE BOARD OF EDUCATION."  APP.
41A. 

/18/  472 F.2D, AT 616.  THE TESTIMONY WAS IN FACT CONTRADICTED BY
DEPUTY MAYOR ZECCA WHILE UNDER CROSS-EXAMINATION BY RESPONDENTS'
COUNSEL.  SEE N. 15, SUPRA. 

/19/  THERE IS SOME QUESTION IN THE RECORD WHETHER RESPONDENTS'
WITNESS'  KNOWLEDGE OF THE 1969 STATEMENT DERIVED FROM THE 1969
NEWSPAPER ACCOUNT THAT THE DISTRICT COURT RULED INADMISSIBLE HEARSAY OR
FROM AN INDEPENDENT SOURCE.  AT ORAL ARGUMENT, COUNSEL FOR RESPONDENTS
INFORMED THE COURT THAT THE WITNESS GIVING THE TESTIMONY HAD HEARD THE
STATEMENT ON TELEVISION, ALTHOUGH COUNSEL CONCEDED THAT THIS HAD NOT
BEEN MADE CLEAR IN THE RECORD.  TR. OF ORAL ARG. 31.  WHETHER THE
TESTIMONY REFLECTED THE NEWSPAPER ACCOUNT OR A TELEVISION REPORT, IT
WAS NONETHELESS HEARSAY.  THE COURT OF APPEALS MADE NO EFFORT TO
DETERMINE WHETHER THE TESTIMONY MET ANY RECOGNIZED EXCEPTION TO THE
GENERAL RULE THAT HEARSAY IS INADMISSIBLE. 

THE DISSENTING OPINION, BASED IN PART ON THIS SINGLE AMBIGUOUS PIECE
OF TESTIMONY, ARGUES THAT THIS "HIGHLY PROBATIVE EVIDENCE"  WAS NOT
HEARSAY.  POST, AT 644.  IT MAY HAVE BEEN ADMISSIBLE FOR WHAT IT WAS
WORTH AS AN EXCEPTION TO THE HEARSAY RULE, BUT HEARSAY IT CERTAINLY WAS
-- AND ITS PROBATIVE VALUE WAS SO DUBIOUS THAT THE DISTRICT COURT
IGNORED IT.  MAYOR TATE WAS NOT CALLED AS A WITNESS BY EITHER SIDE AND
ACCORDINGLY DID NOT TESTIFY.  THUS, IT IS HARDLY SURPRISING THAT
"NOWHERE IN THIS RECORD CAN ONE FIND A DENIAL BY MAYOR TATE THAT HE DID
NOT SAY WHAT THE TESTIMONY INDICATED."  POST, AT 645. 

/20/  WE SHARE THE VIEW EXPRESSED IN THE DISSENT THAT FACTS IN A
CASE LIKE THE INSTANT ONE, "WHEN SEEN THROUGH THE EYES OF JUDGES
FAMILIAR WITH THE CONTEXT IN WHICH THEY OCCURED, MAY HAVE SPECIAL
SIGNIFICANCE THAT IS LOST ON THOSE WITH ONLY THE PRINTED PAGE BEFORE
THEM."  POST, AT 644.  THAT IS ONE REASON WHY WE BELIEVE THAT THE COURT
OF APPEALS, "WITH ONLY THE PRINTED PAGE BEFORE (IT) . . .," ERRED IN
REVERSING THE DISTRICT COURT.  THE JUDGE MOST "FAMILIAR WITH THE
CONTEXT IN WHICH (THE FACTS) OCCURRED . . ."  WAS OBVIOUSLY THE
DISTRICT JUDGE, SINCE HE HEARD AND VIEWED THE TESTIMONY AND OTHER
EVIDENCE PRESENTED.  NOTHING IN OUR OPINION SHOULD BE SEEN AS
DETRACTING FROM THE SALUTARY PRINCIPLE THAT GREAT WEIGHT SHOULD BE
ACCORDED FINDINGS OF FACT MADE BY DISTRICT COURTS IN CASES TURNING ON
PECULIARLY LOCAL CONDITIONS AND CIRCUMSTANCES.  E.G., WHITE V.
REGESTER, 412 U.S. 755, 769 - 770 (1973).     /21/  THE RELEVANT
INTERCHANGE WAS AS FOLLOWS: 

"THE COURT.  DO I UNDERSTAND YOU TO SAY THAT IT IS YOUR
INTERPRETATION OF THE WORDING OF THE CHARTER IN CONNECTION WITH THE
MAKEUP OF THE PANEL THAT IT SHOULD BE REPRESENTATIVE OF THE COMMUNITY
GENERALLY?  IS THAT WHAT YOU ARE SAYING? 

"MR. WOLF.  THE LANGUAGE IS 'REPRESENT ADEQUATELY THE ENTIRE
COMMUNITY,' AND WHAT I WANT TO TRY TO MAKE CLEAR IN THE COURSE OF MY
PRESENTATION IS THAT WE ARE NOT GOING AROUND LOOKING FOR A HOOK TO HANG
OUR CASE ON.     "WE EXPECT TO PRESENT TO YOU A PICTURE, AND WE THINK
THAT EACH OF THESE ITEMS WILL FIT INTO THE PICTURE, AND PAINT AN IMAGE
OF RACIAL DISCRIMINATION. 

"WE THINK THAT ONE OF THE PIECES THAT WILL BE IN THAT PICTURE IS THE
STATUTORY CONTEXT, WHICH IS THAT THIS COMMITTEE, THIS PANEL, SHOULD
REPRESENT ADEQUATELY THE ENTIRE COMMUNITY.  WE ARE NOT ARGUING THAT
THAT MEANS X NUMBER OF WHATHAVEYOU; WE ARE JUST SAYING THAT THAT IS
REVELANT. 

"IF IT WEREN'T THERE, MAYBE THERE WOULD BE A STRONGER ARGUMENT TO BE
MADE THAT YOU SHOULD NOT EXPECT A LARGE NUMBER OF BLACKS THERE, BUT IT
IS SUPPOSED TO REPRESENT ADEQUATELY THE ENTIRE COMMUNITY, AND THAT
MEANS SOMETHING.  IT DOESN'T MEAN ANYTHING EXACTLY, BUT IT MEANS
SOMETHING.  IT POINTS YOU IN A DIRECTION TO SUGGEST THAT YOU SHOULD
FIND__ 

"THE COURT.  AND THIS IS ONE OF THE STICKS IN THE BUNDLE THAT I
SHOULD WEIGH. 

"MR. WOLF.  THAT'S RIGHT.  YOU SHOULD FIND SOME BLACKS ON THERE
UNDER THE STATUTE."  TR., AUG. 28, 1971, PP. 75 - 76. 

/22/  THE DISSENT ALSO REFERS TO A STATEMENT BY THE CHAIRMAN OF THE
COMMISSION THAT DRAFTED THE PANEL WITH REGARD TO A "BALANCED CROSS
CHAIRMAN RELIED ON BY THE DISSENT WAS COUPLED WITH THE THOUGHT THAT ONE
OF THE COMMISSION'S PRINCIPAL PRUPOSES WAS TO PRESERVE THE MAYOR'S
ACCOUNTABILITY AT THE POLLS FOR HIS APPOINTMENTS.  THE COMMISSION
APPARENTLY BELIEVED THAT THE APPROPRIATE CHECK ON THE MAYOR'S ACTIONS
WAS THE COURT OF PUBLIC OPINION.  MOREOVER, IT IS INSTRUCTIVE TO QUOTE
THE CHAIRMAN'S STATEMENT.  AFTER NOTING THAT THE PANEL SHOULD SERVE AS
A SUBSTITUTE FOR PUBLIC ELECTION OF THE SCHOOL BOARD, THE CHAIRMAN
SAID: 

"IT FOLLOWS THAT THE PANEL'S COMPOSITION SHOULD BE SO ARRANGED IN
THE CHARTER THAT IT CAN ALWAYS CONSTITUTE A BALANCED REPRESENTATION OR
CROSS-SECTION OF THE PEOPLE OF THE ENTIRE COMMUNITY -- ALL OF THE
COMMUNITY'S ETHNIC, RACIAL, ECONOMIC, OR GEOGRAPHIC ELEMENTS AND
SEGMENTS."  TO CONVERT THAT STATEMENT, AS WOULD THE DISSENT, INTO
NOTHING MORE THAN A MANDATE FOR RACIAL BALANCE BETWEEN NEGROES AND
WHITES IS TO DISREGARD WHOLLY THE CHAIRMAN ACTUALLY SAID. 

/23/  ASSUMING, ARGUENDO, THAT THERE IS SUBSTANCE TO THE STATE
CLAIMS PERCEIVED BY THE DISSENT, THERE WOULD STILL BE SERIOUS QUESTION
ABOUT THE APPROPRIATENESS OF PENDENT JURISDICTION.  THE DISSENT
CONCEDES THAT "THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT (RESPONDENTS'
FEDERAL CASE) IS ARGUABLE . . . ."  POST, AT 644.  THE DISSENT IS
THEREFORE, URGING AVOIDANCE BY A DISTRICT COURT OF A FEDERAL CLAIM IN
FAVOR OF STATE LAW MATTERS IN A CASE WHERE THE FEDERAL ISSUE IS DUBIOUS
YET IS THE ONLY BASIS FOR FEDERAL JURISDICTION.  THIS AMOUNTS TO AN
ARGUMENT THAT THE STATE TAIL SHOULD WAG THE FEDERAL DOG, E.G., H. HART
& H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 925 (2D ED.
1973), AND WE DO NOT VIEW IT AS AN EFFICACIOUS APPLICATION OF THE
PENDENT JURISDICTION DOCTRINE.  ALMA MOTOR CO. V. TIMKEN CO., 329 U.S.
129 (1946), ON WHICH THE DISSENT RELIES IN CONCLUDING THAT THIS CASE
SHOULD BE REMANDED FOR RESOLUTION OF STATE ISSUES, WAS A CASE IN WHICH
THE ALTERNATIVE GROUND FOR DECISION WAS A FEDERAL STATUTE OVER WHICH A
DISTRICT COURT WOULD HAVE JURISDICTION WITHOUT REGARD TO THE PRESENCE
OF FEDERAL CONSTITUTIONAL ISSUES.  IT PLAINLY IS NOT IN POINT HERE.  IN
THE INSTANT CASE, THE ALTERNATIVE GROUND CHAMPIONED BY THE DISSENT IS
NOT BY ITSELF CAPABLE OF CONFERRING FEDERAL JURISDICTION. 

/24/  SEE, E.G., MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668 (1963);
HARRISON V. NAACP, 360 U.S. 167, 180 (1959) (DOUGLAS, J., JOINED BY
WARREN, C. J., AND BRENNAN, J., DISSENTING); ALI STUDY OF THE DIVISION
OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 1371 (G), COMMENTARY
AT 297 (1969). 

/25/  SEE GUNTHER, THE SUBTLE VICES OF THE "PASSIVE VIRTUES" -- A
COMMENT OF PRINCIPLE AND EXPEDIENCY IN JUDICIAL REVIEW, 64 COL.L. REV.
1, 16 - 17 (1964). 

        APPENDIX TO OPINION OF THE COURT

        PHILADELPHIA HOME RULE CHARTER

 ARTICLE XII

        PUBLIC EDUCATION

        CHAPTER 1

        THE HOME RULE SCHOOL DISTRICT 


A SEPARATE AND INDEPENDENT HOME RULE SCHOOL DISTRICT IS HEREBY
ESTABLISHED AND CREATED TO BE KNOWN AS "THE SCHOOL DISTRICT OF
PHILADELPHIA." 

ASSUME ALL LIABILITIES OF THE PREDECESSOR SCHOOL DISTRICT.  HC#629 

THE HOME RULE SCHOOL DISTRICT SHALL 

(A) SUCCEED DIRECTLY THE NOW EXISTING SCHOOL DISTRICT FOR ALL
PURPOSES, INCLUDING, BUT NOT LIMITED TO, RECEIPT OF ALL GRANTS, GIFTS,
APPROPRIATIONS, SUBSIDIES OR OTHER PAYMENTS; TO, RECEIPT OF ALL GRANTS,
GIFTS, APPROPRIATIONS, SUBSIDIES OR OTHER PAYMENTS; 

(B) TAKE OVER FROM THE NOW EXISTING SCHOOL DISTRICT ALL ASSETS,
PROPERTY, REAL AND PERSONAL, TANGIBLE AND INTANGIBLE, ALL EASMENTS AND
ALL EVIDENCES OF OWNERSHIP IN PART OR IN WHOLE, AND ALL RECORDS, AND
OTHER EVIDENCES PERTAINING THERETO; AND 

(C) ASSUME ALL DEBT AND OTHER CONTRACTUAL OBLIGATIONS OF THE NOW
EXISTING SCHOOL DISTRICT, ANY LONG TERM DEBT TO BE ISSUED, SECURED AND
RETIRED IN THE MANNER NOW PROVIDED BY LAW. 

CHAPTER 2

        THE BOARD OF EDUCATION 


THERE SHALL BE A BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF
PHILADELPHIA WHICH SHALL BE CHARGED WITH THE ADMINISTRATION, MANAGEMENT
AND OPERATION OF THE HOME RULE SCHOOL DISTRICT. 


THERE SHALL BE NINE MEMBERS OF THE BOARD OF EDUCATION WHO SHALL BE
APPOINTED BY THE MAYOR FROM LISTS OF NAMES SUBMITTED TO HIM BY THE
EDUCATIONAL NOMINATING PANEL.  . . . 


MEMBERS OF THE BOARD OF EDUCATION SHALL BE REGISTERED VOTERS OF THE
CITY.  NO PERSON SHALL BE ELIGIBLE TO BE APPOINTED . . . TO MORE THAN
TWO FULL SIX-YEAR TERMS. 


THE TERMS OF MEMBERS OF THE BOARD OF EDUCATION SHALL BEGIN ON THE
FIRST MONDAY IN DECEMBER AND SHALL BE SIX YEARS EXCEPT THAT (1) OF THE
FIRST MEMBERS OF THE BOARD APPOINTED . . . , THREE SHALL BE APPOINTED .
. . FOR TERMS OF TWO YEARS, THREE FOR TERMS OF FOUR YEARS, AND THREE
FOR TERMS OF SIX YEARS . . . . 


MEMBERS OF THE BOARD OF EDUCATION MAY BE REMOVED AS PROVIDED BY
LAW. 


A VACANCY IN THE OFFICE OF MEMBER OF THE BOARD OF EDUCATION SHALL BE
FILLED FOR THE BALANCE OF THE UNEXPIRED TERM IN THE SAME MANNER IN
WHICH THE MEMBER WAS SELECTED WHO DIED OR RESIGNED.  IF A MEMBER OF THE
BOARD IS REMOVED FROM OFFICE, THE RESULTING VACANCY SHALL BE FILLED AS
PROVIDED BY LAW. 

SELECTION. 

(A) THE MAYOR SHALL APPOINT AN EDUCATIONAL NOMINATING PANEL
CONSISTING OF THIRTEEN (13) MEMBERS.  MEMBERS OF THE PANEL SHALL BE
REGISTERED VOTERS OF THE CITY AND SHALL SERVE FOR TERMS OF TWO YEARS
FROM THE DATES OF THEIR APPOINTMENT. 

(B) NINE MEMBERS OF THE EDUCATIONAL NOMINATING PANEL SHALL BE THE
HIGHEST RANKING OFFICERS OF CITY-WIDE ORGANIZATIONS OR INSTITUTIONS
WHICH ARE,RESPECTIVELY: 

     (1) A LABOR UNION COUNCIL OR OTHER ORGANIZATION OF UNIONS OF

  WORKERS AND EMPLOYEES ORGANIZED AND OPERATED FOR THE BENEFIT OF

  SUCH WORKERS AND EMPLOYEES, 

(2) A COUNCIL, CHAMBER, OR OTHER ORGANIZATION ESTABLISHED FOR

  THE PURPOSE OF GENERAL IMPROVEMENT AND BENEFIT OF COMMERCE AND

  INDUSTRY, 

     (3) A PUBLIC SCHOOL PARENT-TEACHERS ASSOCIATION, 

     (4) A COMMUNITY ORGANIZATION OF CITIZENS ESTABLISHED FOR THE

  PURPOSE OF IMPROVEMENT OF PUBLIC EDUCATION, 

     (5) A FEDERATION, COUNCIL, OR OTHER ORGANIZATION OF

  NON-PARTISAN NEIGHBORHOOD OR COMMUNITY ASSOCIATIONS, 

     (6) A LEAGUE, ASSOCIATION, OR OTHER ORGANIZATION ESTABLISHED

  FOR THE PURPOSE OF IMPROVEMENT OF HUMAN AND INTER-GROUP

  RELATIONS, 

     (7) A NON-PARTISAN COMMITTEE, LEAGUE, COUNCIL, OR OTHER

  ORGANIZATION ESTABLISHED FOR THE PURPOSE OF IMPROVEMENT OF

  GOVERNMENTAL, POLITICAL, SOCIAL, OR ECONOMIC CONDITIONS, 

     (8) A DEGREE-GRANTING INSTITUTION OF HIGHER EDUCATION WHOSE

PRINCIPAL EDUCATIONAL FACILITIES ARE LOCATED WITHIN PHILADELPHIA,

  AND 

     (9) A COUNCIL, ASSOCIATION, OR OTHER ORGANIZATION DEDICATED TO

  COMMUNITY PLANNING OF HEALTH AND WELFARE SERVICES OR OF THE

  PHYSICAL RESOURCES AND ENVIRONMENT OF THE CITY. 

(C) IN ORDER TO REPRESENT ADEQUATELYTHE ENTIRE COMMUNITY, THE FOUR
OTHER MEMBERS OF THE EDUCATIONAL NOMINATING PANEL SHALL BE APPOINTED BY
THE MAYOR FROM THE CITIZENRY AT LARGE. 

(D) IN THE EVENT NO ORGANIZATION AS DESCRIBED IN ONE OF THE CLAUSES
(1) THROUGH (9) OF SUBSECTION (B) EXISTS WITHIN THE CITY, OR IN THE
EVENT THERE IS NO SUCH ORGANIZATION ANY ONE OF WHOSE OFFICERS IS A
REGISTERED VOTER OF THE CITY, THE MAYOR SHALL APPOINT THE HIGHEST
RANKING OFFICER WHO IS A REGISTERED VOTER OF THE CITY FROM ANOTHER
ORGANIZATION OR INSTITUTION WHICH QUALIFIES UNDER ANOTHER CLAUSE OF THE
SUBSECTION. 

(E) A VACANCY IN THE OFFICE OF MEMBER OF THE EDUCATIONAL NOMINATING
PANEL SHALL BE FILLED FOR THE BALANCE OF THE UNEXPIRED TERM IN THE SAME
MANNER IN WHICH THE MEMBER WAS SELECTED WHO DIED, RESIGNED, OR WAS
REMOVED. 

(F) THE EDUCATIONAL NOMINATING PANEL SHALL ELECT ITS OWN OFFICERS
AND ADOPT RULES OF PROCEDURE. 

PROCEDURE. 

(A) THE MAYOR SHALL APPOINT AND CONVENE THE EDUCATIONAL NOMINATING
PANEL (1) NOT LATER THAN MAY TWENTY-FIFTH OF EVERY ODD-NUMBERED YEAR,
AND (2) WHENEVER A VACANCY OCCURS IN THE MEMBERSHIP OF THE BOARD OF
EDUCATION. 

(B) THE PANEL SHALL WITHIN FORTY (40) DAYS SUBMIT TO THE MAYOR THREE
NAMES OF QUALIFIED PERSONS FOR EVERY PLACE ON THE BOARD OF EDUCATION
WHICH IS TO BE FILLED.  IF THE MAYOR WISHES AN ADDITIONAL LIST OF
NAMES, HE SHALL SO NOTIFY THE PANEL WITHIN TWENTY (20) DAYS.  THERE
UPON THE PANEL SHALL WITHIN THIRTY (30) DAYS SEND TO THE MAYOR AN
ADDITIONAL LIST OF THREE QUALIFIED PERSONS FOR EACH PLACE TO BE
FILLED.  THE MAYOR SHALL WITHIN TWENTY (20) DAYS MAKE AN APPOINTMENT .
. . .

        .         .         .         .         . 

(D) THE EDUCATIONAL NOMINATING PANEL SHALL INVITE BUSINESS, CIVIC,
PROFESSIONAL, LABOR, AND OTHER ORGANIZATIONS, AS WELL AS INDIVIDUALS,
SITUATED OR RESIDENT WITHIN THE CITY TO SUBMIT FOR CONSIDERATION BY THE
PANEL THE NAMES OF PERSONS QUALIFIED TO SERVE AS MEMBERS OF THE BOARD
OF EDUCATION. 

(E) NOTHING HEREIN PROVIDED SHALL PRECLUDE THE PANEL FROM
RECOMMENDING AND THE MAYOR FROM APPOINTING OR NOMINATING PERSONS WHO
HAVE PREVIOUSLY SERVED ON ANY BOARD OF PUBLIC EDUCATION OTHER THAN THE
BOARD OF EDUCATION CREATED BY THESE CHARTER PROVISIONS.  PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, RESPONDENTS EQUALLY CONTENDED THAT
THE RACIALLY DISCRIMINATORY APPOINTMENT OF MEMBERS TO THE EDUCATIONAL
NOMINATING PANEL VIOLATED "THE EXPRESS PROVISIONS AND INTENDED PURPOSE
OF THE EDUCATIONAL SUPPLEMENT" TO THE PHILADELPHIA HOME RULE CHARTER. 
/1/  THE ACTION SOUGHT INJUNCTIVE AND DECLARATORY RELIEF UNDER 42
U.S.C.  1983, AND JURISDICTION WAS INVOKED UNDER 28 U.S.C. 1343 (3). 

THE DISTRICT COURT, AFTER TRIAL AT WHICH EVIDENCE WAS DEVELOPED ON
BOTH THE CONSTITUTIONAL AND STATE CLAIMS, DECIDED THE CONSTITUTIONAL
CLAIM ADVERSELY TO THE RESPONDENTS.  AS TO THE STATE CLAIM, THE COURT
STATED: 

     "FURTHER, PLAINTIFFS WOULD HAVE US CONSTRUE SECTION 12 -
206(C)

  OF THE EDUCATIONAL SUPPLEMENT TO HOLD THAT THE PHRASE

  'REPRESENTATIVE OF THE COMMUNITY'  REFERS TO RACIAL BALANCE. 

HOWEVER, THE INTERPRETATION OF THIS STATUTE WOULD MORE PROPERLY

  BE DECIDED BY THE STATE COURTS, AND WE TAKE NO POSITION

  THERETO."  /2/  333 F. SUPP. 1202, 1206 - 1207 (1971).  HC#634

THE COURT OF APPEALS REVERSED ON THE CONSTITUTIONAL GROUND, NOTING THAT
"(IN VIEW OF THE RESULT REACHED ON PLAINTIFFS' FEDERAL CLAIMS, THE
DISTRICT COURT DECLINED TO EXERCISE PENDENT JURISDICTION OVER
PLAINTIFFS' CLAIM THAT THE MAYOR HAD ALSO VIOLATED STATE LAW -- NAMELY,
VARIOUS PROVISIONS OF THE EDUCATIONAL SUPPLEMENT -- IN SELECTING PANEL
MEMBERS."  472 F.2D 612, 616 N. 15(1973). 

ALTHOUGH THE COURT DID NOT DIRECTLY REACH THE STATE CLAIM, IT
THOUGHT THAT THE LEGISLATIVE HISTORY OF THE EDUCATIONAL SUPPLEMENT
"SERVES AS THE BACKGROUND FOR THE FACTS OF WHICH PLAINTIFFS COMPLAIN." 
ID., AT 615, PARTICULARLY THE EVIDENCE THAT THE CHAIRMAN OF THE
EDUCATIONAL HOME RULE CHARTER COMMISSION, WHICH DRAFTED THE EDUCATIONAL
SUPPLEMENT, COMTEMPLATED THAT THE COMPOSITION OF THE PANEL WOULD
"CONSTITUTE A BALANCED REPRESENTATION OR CROSS-SECTION OF THE PEOPLE OF
THE ENTIRE COMMUNITY -- ALL OF THE COMMUNITY'S ETHNIC, RACIAL,
ECONOMIC, OR GEOGRAPHIC ELEMENT AND SEGMENTS."  ID., AT 614-615. 

THERE IS NO QUESTION IN THIS CASE THAT THE DISTRICT COURT HAD
JURISDICTION OVER THIS 1983 ACTION UNDER 1343 (3), SINCE THE EQUAL
PROTECTION CLAIM WAS CLEARLY SUBSTANTIAL.  HAGANS V. LAVINE, ANTE, P.
528.  IT IS EQUALLY CLEAR THAT IF THE PENDENT CLAIM WERE A FEDERAL
STATUTORY ONE, THE CONSTITUTIONAL ISSUE SHOULD NOT BE REACHED IF THE
STATUTORY CLAIM WAS DISPOSITIVE.  ID., AT 543.  THE STATEMENT OF THIS
PRINCIPLE IN HAGANS,AND THE CASES ON WHICH IT RELIED, CALIFORNIA HUMAN
RESOURCES DEPT.V. JAVA, 402 U.S. 121, 124 (1971); DANDRIDGE V.
WILLIAMS, 397 U.S. 471, 475 - 476 (1970); ROSADA V. WYMAN, 397 U.S.
397, 402 (1970); KING V. SMITH, 392 U.S. 309 (1968), ARE ULTIMATELY
PREMISED ON WHAT HAS COME TO BE KNOWN AS THE RULE OF NECESSITY, OF
AVOIDING RESOLUTION OF CONTROVERSIES ON CONSTITUTIONAL GROUNDS WHERE
POSSIBLE.  ASHWANDER V. TVA, 297 U.S. 288, 341 (1936) (BRANDEIS, J.,
CONCURRING).  JUSTICE BRANDEIS STATED THE RULE AS FOLLOWS:     "THE
COURT WILL NOT PASS UPON A CONSTITUTIONAL QUESTION ALTHOUGH PROPERLY
PRESENTED BY THE RECORD, IF THERE IS ALSO PRESENT SOME OTHER GROUND
UPON WHICH THE CASE MAY BE DISPOSED OF.. . . THUS, IF A CASE CAN BE
DECIDED ON EITHER OF TWO GROUNDS, ONE INVOLVING A CONSTITUTIONAL
QUESTION, THE OTHER A QUESTION OF STATUTORY CONSTRUCTION OR GENERAL
LAW, THE COURT WILL DECIDE ONLY THE LATTER.  SILER V. LOUISVILLE &
NASHVILLE R. CO., 213 U.S. 175, 191; LIGHT V. UNITED STATES, 220 U.S.
523, 538."  ID., AT 347.  IN SILER V. LOUISVILLE & NASHVILLE R. CO.,
213 U.S. 175 (1909), A STATE ORDER REGULATING RATES WAS ATTACKED AS
UNCONSTITUTIONAL, UNDER THE FOURTEENTH AMENDMENT, ON DUE PROCESS AND
EQUAL PROTECTION GROUNDS, AS WELL AS UNDER ART. IV, 4.  THE COMPLAINT
ALSO CHALLENGED THE VALIDITY OF THE ORDER UNDER A STATE STATUTE.  THE
CIRCUIT COURT HAD INVALIDATED THE STATE REGULATION ON EQUAL PROTECTION
AND DUE PROCESS GROUNDS.  THIS COURT BEGAN BY NOTING THAT THERE WAS NO
QUESTION OF THE FEDERAL COURT'S JURISDICTION BY VIRTUE OF THE FEDERAL
QUESTIONS.  THE COURT, HOWEVER, INVALIDATED THE REGULATION ON STATE
GROUNDS, DECLARING THIS PREFERABLE TO AN UNNECESSARY DETERMINATION OF
FEDERAL CONSTITUTIONAL QUESTIONS: 

     "WHERE A CASE IN THIS COURT CAN BE DECIDED WITHOUT REFERENCE
TO

  QUESTIONS ARISING UNDER THE FEDERAL CONSTITUTION, THAT COURSE IS

  USUALLY PURSUED AND IS NOT DEPARTED FROM WITHOUT IMPORTANT

  REASONS.  IN THIS CASE WE THINK IT MUCH BETTER TO DECIDE IT WITH

  REGARD TO THE QUESTION OF A LOCAL NATURE, INVOLVING THE

  CONSTRUCTION OF THE STATE STATUTE AND THE AUTHORITY THEREIN GIVEN

TO THE COMMISSION TO MAKE THE ORDER IN QUESTION, RATHER THAN TO

  UNNECESSARILY DECIDE THE VARIOUS CONSTITUTIONAL QUESTIONS

  APPEARING IN THE RECORD."  ID., AT 193. 

THIS COURSE WAS TAKEN DESPITE THE FACT THAT THE COURT WAS WITHOUT
BENEFIT OF A CONSTRUCTION OF THE STATUTE BY THE HIGHEST STATE COURT OF
KENTUCKY.  ID., AT 194.  THIS METHOD OF ADJUDICATION "AVOIDS DECISION
OF CONSTITUTIONAL QUESTIONS WHERE POSSIBLE, AND IT PERMITS ONE LAWSUIT,
RATHER THAN TWO, TO RESOLVE THE ENTIRE CONTROVERSY."  C. WRIGHT,
FEDERAL COURTS 63 (2D ED. 1970).  SEE H. HART & H. WECHSLER, THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 922 (2D ED. 1973). 

THE POLICY OF DIRECTLY PROCEEDING TO A LOCAL LAW ISSUE TO AVOID
DECIDING A CONSTITUTIONAL QUESTION, RULED UPON IN SILER, AND WHICH
ACHIEVED DOCTRINAL STATUS IN ASHWANDER, IS "WELL SETTLED." 
HILLSBOROUGH V. CROMWELL, 326 U.S. 620, 629 (1946).  SINCE THE DISTRICT
COURT AND COURT OF APPEALS PASSED BY THE STATE LAW CLAIM, AND DIRECTLY
PROCEEDED TO THE FEDERAL CONSTITUTIONAL ISSUE, I WOULD VACATE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND TO THE DISTRICT COURT FOR
ASSESSMENT OF THE STATE LAW CLAIM.  /3/ 

THE BASIC RELIEF SOUGHT BY RESPONDENTS WAS TO BAR THE 1971 PANEL
APPOINTED BY MAYOR TATE FROM SUBMITTING NOMINEES FOR THE BOARD TO THE
MAYOR, AND AN ORDER DIRECTING THE MAYOR TO APPOINT A NOMINATING PANEL
"FAIRLY REPRESENTATIVE OF THE RACIAL COMPOSITION OF THE SCHOOL
COMMUNITY."  THIS RELIEF WOULD BE EQUALLY AVAILABLE AS A REMEDY FOR
VIOLATIONS BY THE MAYOR OF THE EDUCATIONAL SUPPLEMENT. 

IF THE DISTRICT COURT HAD PROCEEDED TO THE STATE LAW CLAIM, IT MIGHT
HAVE DECIDED THAT IT WAS WITHOUT MERIT, OR EVEN PERHAPS FRIVOLOUS, IN
WHICH CASE IT WOULD, IN ANY EVENT, HAVE BEEN REQUIRED TO ANSWER THE
CONSTITUTIONAL QUESTION.  PERHAPS IF THIS COURT BELIEVED THE STATE
COURT CLAIM WERE OF A TRULY INSUBSTANTIAL NATURE, THE SUGGESTION FOR A
REMAND MIGHT APPEAR NOT TO BE WORTH THE CANDLE, AND PRODUCTIVE OF
UNNECESSARY DELAY.  I DO NOT BELIEVE THIS TO BE THE CASE, HOWEVER. 

THE RESPONDENTS' VIEW OF STATE LAW WAS THAT THE MAYOR, HERE WITH THE
ASSISTANCE OF DEPUTY MAYOR ZECCA, WAS REQUIRED TO COMPILE A LIST OF ALL
ORGANIZATIONS WHICH QUALIFIED UNDER THE NINE CATEGORIES SET UP BY THE
CITY CHARTER, AND FROM THIS GROUP TO SELECT THE CHIEF EXECUTIVE OFFICER
OF ONE OF THOSE ORGANIZATIONS IN EACH CATEGORY WITH THE VIEW OF
ACHIEVING A BALANCED RACIAL COMPOSITION ON THE PANEL AS A WHOLE.  THIS
VIEW WAS SUPPORTED BY THE FACT THAT THE CHAIRMAN OF THE EDUCATIONAL
HOME RULE CHARTER COMMISSION, WHICH DRAFTED THE SUPPLEMENT, STATED THAT
THE COMPOSITION OF THE PANEL SHOULD CONSTITUTE A BALANCED CROSS SECTION
OF THE ENTIRE COMMUNITY, ON RACIAL, AS WELL AS OTHER GROUNDS.  MINUTES
FROM THE MEETINGS OF THE CHARTER COMMISSION WERE RELIED UPON TO SUPPORT
THIS READING OF THE CHARTER. 

ON THE OTHER HAND, THE PETITIONERS READ THE CHARTER QUITE
DIFFERENTLY.  DEPUTY MAYOR ZECCA TESTIFIED THAT THE DESCRIPTION OF
CERTAIN CATEGORIES ALMOST DICTATED WHICH ORGANIZATION WAS TO HAVE
REPRESENTATION ON THE NOMINATING PANEL.  CATEGORY ONE ON THE NOMINATING
PANEL REQUIRED REPRESENTATION OF "A LABOR UNION COUNCIL OR OTHER
ORGANIZATION OF UNIONS OF WORKERS AND EMPLOYEES ORGANIZED AND OPERATED
FOR THE BENEFIT OF SUCH WORKERS AND EMPLOYES."  MR. TOOHEY, THE HEAD OF
THE AFL-CIO IN PHILADELPHIA, WAS APPOINTED TO THE POSITION.  WHEN
DEPUTY MAYOR ZECCA WAS ASKED WHETHER THERE WAS ANY OTHER ORGANIZATION
IN PHILADELPHIA WHICH WOULD FIT THIS GENERAL CATEGORY, HE REPLIED, "I
DON'T BELIEVE THERE IS ANOTHER ORGANIZATION THAT WOULD FIT THAT
CATEGORY TO THE EXTENT THAT THE AFL-CIO COUNCIL OPERATES.  THIS IS THE
BROADEST POSSIBLE GROUP."  TR., AUG. 25, 1971, P. 206.  ZECCA WAS THEN
ASKED ABOUT THE SECOND CATEGORY WHICH PROVIDES FOR "A COUNCIL, CHAMBER,
OR OTHER ORGANIZATION ESTABLISHED FOR THE PURPOSE OF GENERAL
IMPROVEMENT AND BENEFIT OF COMMERCE AND INDUSTRY."  THE MAYOR HAD
APPOINTED THE PHILADELPHIAN WHO WAS THE CHIEF RANKING OFFICER OF THE
CHAMBER OF COMMERCE AND INDUSTRY.  WHEN ASKED WHY THAT APPOINTMENT WAS
MADE, ZECCA STATED: WELL, THE CHAMBER OF COMMERCE -- I THINK THE
WORDING OF THE CHAPTER MAKES IT ALMOST IMPLICIT THAT IT IS REFERRING TO
THE CHAMBER OF COMMERCE, REFERRING TO THE USE OF THE WORD 'CHAMBER.'  I
THINK THAT THESE RESTRAINTS, THE FRAMERS OF THAT HOME RULE SUPPLEMENT
PRACTICALLY DID EVERYTHING BUT DICTATE EXACTLY WHO THEY WANTED TO SERVE
IN THOSE NINE CATEGORIES."  ID., AT 207. 

RESPONDENTS AND PETITIONERS THUS SQUARELY JOINED ISSUE ON THE INTENT
OF THE CHARTER.  /4/  RESPONDENTS THOUGHT ANY GROUP FITTING A GIVEN
CATEGORY SHOULD BE PUT INTO A POOL FOR THAT CATEGORY, AND THEN A
PARTICULAR GROUP SELECTED FOR EACH CATEGORY WITH A VIEW TO ACHIEVING
CERTAIN BALANCES ON THE PANEL AS A WHOLE.  EVIDENTLY, THE CITY'S VIEW
WAS THAT THE MOST REPRESENTATIVE GROUP OF THE PHILADELPHIA COMMUNITY IN
EACH CATEGORY SHOULD BE PICKED WITHOUT REGARD TO BALANCING THE PANEL AS
A WHOLE.  THE BALANCING WAS ALREADY ACHIEVED THROUGH THE DIVERSITY OF
TYPES OF ORGANIZATIONS TO BE REPRESENTED ON THE PANEL.  OF COURSE, TO
THE EXTENT THAT ANY PREDOMINANTLY WHITE GROUP WAS MORE REPRESENTATIVE
OF THE CITIZENS OF PHILADELPHIA, AS A WHOLE, THAN ANY PREDOMINANTLY
BLACKGROUP, THIS MIGHT WORK TO MINIMIZE THE NUMBER OF BLACKS APPOINTED
TO THE PANEL, ASSUMING THE CHIEF EXECUTIVE OFFICER OF A GROUP REFLECTS
ITS PREDOMINANT RACIAL COMPOSITION.  THE RESOLUTION OF THIS ISSUE IS
FAR FROM CLEAR, AND SHOULD HAVE BEEN DECIDED BY THE DISTRICT COURT
WITHOUT PROCEEDING IMMEDIATELY TO THE CONSTITUTIONAL CLAIM. 

THE MAJORITY ONLY COMES TO GRIPS WITH THE STATE LAW CLAIM OF RACIAL
DISCRIMINATION IN A FOOTNOTE, STATING:  "THE STATEMENT BY THE CHAIRMAN
RELIED ON BY THE DISSENT WAS COUPLED WITH THE THOUGHT THAT ONE OF THE
COMMMISSION'S PRINCIPAL PURPOSES WAS TO PRESERVE THE MAYOR'S
ACCOUNTABILITY AT THE POLLS FOR HIS APPOINTMENTS.  THE COMMISSION
APPARENTLY BELIEVED THAT THE APPROPRIATE CHECK ON THE MAYOR'S ACTIONS
WAS THE COURT OF PUBLIC OPINION."  ANTE, AT 626 - 627, N. 22.  WHETHER
THE CHARTER INTENDED TO CONFINE THE DISCRETION OF THE MAYOR IS A MATTER
OF STATE LAW NOT PASSED UPON BY THE TWO FEDERAL COURTS WHICH HAVE
REVIEWED THIS CASE.  I SEE NOT NEED FOR THIS COURT, WHICH IS FAR AWAY
FROM THE CONTROVERSY AT HAND, TO DECIDE THE MERITS OF THE STATE LAW
CLAIM, ON THE BASIS OF ITS OWN READING OF THE CHARTER.  THE STATE LAW
CLAIM SHOULD BE LEFT, IN THE FIRST INSTANCE, TO THE DISTRICT COURT. 
/5/

AS THE MAJORITY OPINION INDICATES, ONE OF THE GROUNDS RELIED UPON BY
THE COURT OF APPEALS IN FINDING RACIAL DISCRIMINATION IN THE
APPOINTMENT OF THE PANEL, UNDER THE FOURTEENTH AMENDMENT, WAS THE FACT
THAT ZECCA WAS UNAWARE OF MANY BLACK ORGANIZATIONS AND INSTITUTIONS SET
OUT IN THE CITY CHARTER.  WHOLLY ASIDE FROM WHETHER THE "LACK OF
AWARENESS" MIGHT SUPPORT AN INFERENCE OF RACIAL DISCRIMINATION, THE
COURT OF APPEALS NOTED THAT ZECCA THOUGHT THAT ONLY PARTICULAR
ORGANIZATIONS COULD QUALIFY FOR APPOINTMENT UNDER VARIOUS CHARTER
PROVISIONS.  AS I READ HIS TESTIMONY, ALL ZECCA CLAIMED HE HAD TO KNOW
WAS THAT THE CHAMBER OF COMMERCE AND THE AFL-CIO WERE THE MOST
REPRESENTATIVE TRADE AND LABOR GROUPS IN THE CITY, WHICH AUTOMATICALLY
DICTATED APPOINTMENT OF THEIR REPRESENTATIVES TO THE PANEL.  I TAKE IT
THAT, UNDER HIS VIEW OF THE CHARTER, IT WAS NOT NECESSARY TO PROCEED
FURTHER.  IF RESPONDENTS' READING OF THE CHARTER REQUIREMENTS WERE TO
PREVAIL OVER THAT OF PETITIONERS', A VIOLATION OF THE STATE LAW MIGHT
WELL GIVE RISE TO THE RELIEF REQUESTED. 

OF COURSE, THE DISTRICT COURT ON REMAND MIGHT DECIDE THAT IT SHOULD
LEAVE TO THE STATE COURTS RESOLUTION OF THE STATE LAW ISSUE, AND
ABSTAIN.  IN SUCH EVENT, THE PROPER COURSE TO FOLLOW WOULD BE TO RETAIN
JURISDICTION OVER THE CONSTITUTIONAL ISSUE PENDING RESOLUTION OF THE
STATE CLAIM IN ANOTHER FORUM.  THE DECISION TO ABSTAIN IS BY NO MEANS
REQUIRED AND WHETHER THAT COURSE MEETS THE TEST OF "SPECIAL
CIRCUMSTANCES," SEE LAKE CARRIERS' ASSN. V. MACMULLAN, 406 U.S. 498,
509 (1972), IS FAR FROM CERTAIN.  I RAISE THIS POSSIBILITY ONLY FOR THE
PURPOSE OF STRESSING THAT EVEN IF ABSTENTION WERE TO BE DEEMED
APPROPRIATE, A QUESTION ON WHICH I INDICATE NO VIEW, THE DISTRICT COURT
SHOULD STILL REFRAIN FROM DECIDING THE CONSTITUTIONAL ISSUE.  THE
PARAMOUNT CONCERN OF AVOIDING CONSTITUTIONAL QUESTIONS, WHERE POSSIBLE,
PERSISTS.  THE COURT HAS NOTED THAT APPLICATION OF THE ABSTENTION
DOCTRINE INEVITABLY GIVES RISE TO DELAY AND EXPENSE, ENGLAND V. MEDICAL
EXAMINERS, 375 U.S. 411, 418 (1964), BUT THE POLICIES UNDERLYING THE
ASHWANDER DOCTRINE SHOULD PREVAIL EVEN AT THIS LATE DATE IN THE
LITIGATION. 

THE BEARING OF THE ASHWANDER DOCTRINE WAS NOT RAISED BY THE PARTIES
TO THIS LITIGATION, EITHER IN THE DISTRICT COURT, THE COURT OF APPEALS,
OR IN THIS COURT.  HOWEVER, THIS COURT CLEARLY HAS "THE POWER TO NOTICE
A 'PLAIN ERROR'  THOUGH IT IS NOT ASSIGNED OR SPECIFIED," BROTHERHOOD
OF CARPENTERS V. UNITED STATES, 330 U.S. 395, 412 (1947), AND THIS
HOLDS TRUE WHETHER THE ERROR HAS OR HAS NOT BEEN BRIEFED OR ARGUED IN
THIS COURT.  SILBER V. UNITED STATES, 370 U.S. 717 (1962). 

IN ALMA MOTOR CO. V. TIMKEN CO., 329 U.S. 129 (1946), THE COURT OF
APPEALS HAD BEFORE IT NOT ONLY A CONSTITUTIONAL QUESTION WHICH IT
DECIDED, BUT ALSO A NON-CONSTITUTIONAL QUESTION, WHICH ALONE WOULD HAVE
DISPOSED OF THE APPEAL.  THE COURT OF APPEALS RULED ON THE
CONSTITUTIONAL QUESTION, AND IT APPEARS THAT AT NO TIME DID ANY PARTY
URGE THAT COURT TO RULE ON THE STATUTORY GROUND.  THIS COURT GRANTED
CERTIORARI ON THE CONSTITUTIONAL ISSUE AND HEARD ARGUMENT AT THE
OCTOBER 1944 TERM ON THE CONSTITUTIONAL QUESTION.  AFTER THE CASE HAD
BEEN SET DOWN FOR FURTHER ARGUMENT IN THE 1945 TERM, THE UNITED STATES,
WHICH WAS AN INTERVENOR IN THE ACTION, POINTED OUT THAT THE CASE COULD
BE DECIDED ON STATUTORY GROUNDS, AND MOVED TO VACATE THE JUDGMENT OF
THE COURT OF APPEALS AND TO REMAND THE CASE TO IT FOR DETERMINATION OF
THE STATUTORY QUESTION.  THE COURT ADOPTED THE SUGGESTION OF THE UNITED
STATES, RELYING ON SILER, STATING: 

     "THIS COURT HAS SAID REPEATEDLY THAT IT OUGHT NOT PASS ON THE

  CONSTITUTIONALITY OF AN ACT OF CONGRESS UNLESS SUCH ADJUDICATION

  IS UNAVOIDABLE.  THIS IS TRUE EVEN THOUGH THE QUESTION IS

  PROPERLY PRESENTED BY THE RECORD.  IF TWO QUESTIONS ARE RAISED,

  ONE OF NON-CONSTITUTIONAL AND THE OTHER OF CONSTITUTIONAL NATURE,

  AND A DECISION OF THE NON-CONSTITUTIONAL QUESTION WOULD MAKE

  UNNECESSARY A DECISION OF THE CONSTITUTIONAL QUESTION, THE FORMER

  WILL BE DECIDED."  329 U.S., AT 136. 

THE PRESENCE OF THE NONCONSTITUTIONAL GROUND HAD NOT BEEN RAISED BELOW,
OR IN THIS COURT UNTIL AFTER ARGUMENT, BUT THE COURT OBSERVED: 

     "WE AGREE THAT MUCH TIME HAS BEEN WASTED BY THE EARLIER
FAILURE

  OF THE PARTIES TO INDICATE, OR THE CIRCUIT COURT OF APPEALS OR

  THIS COURT TO SEE, THE COURSE WHICH SHOULD HAVE BEEN FOLLOWED. 

  THIS, HOWEVER, IS NO REASON TO CONTINUE NOW ON THE WRONG COURSE. 

  THE PRINCIPLE OF AVOIDING CONSTITUTIONAL QUESTIONS IS ONE WHICH

  WAS CONCEIVED OUT OF CONSIDERATIONS OF SOUND JUDICIAL

  ADMINISTRATION.  IT IS A TRADITIONAL POLICY OF OUR COURTS."  ID.,

  AT 142. 

        II 

SINCE THE MAJORITY FAILS TO ACCEPT MY VIEWS ON THE MATTER OF
REACHING THE CONSITIUTIONAL QUESTION, I FEEL COMPELLED TO EXPRESS MY
THOUGHTS ON THE MERITS OF THE CLAIM OF RACIAL DISCRIMINATION. 

ON THE RECORD IN EVIDENCE BEFORE IT, THE COURT OF APPEALS FOUND THAT
THE 1971 NOMINATING PANEL WAS DISCRIMINATORILY CHOSEN.  ALTHOUGH THE
SUFFICIENCY OF THE EVIDENCE TO SUPPORT THAT CONCLUSION IS ARGUABLE, I
WOULD NOT SUBSTITUTE OUR OWN VIEW OF THE FACTS AND OVERTURN THE COURT
OF APPEALS' JUDGMENT IN THIS RESPECT.  NEGROES CONSTITUTED 34% OF THE
POPULATION, AND 60% OF THE PUBLIC SCHOOL STUDENTS WERE NEGROES.  THE
PURPOSE OF THE ORDINANCE ESTABLISHING THE NOMINATING PANEL WAS TO
STIMULATE AND INVITE PARTICIPATION BY ALL GROUPS IN THE COMMUNITY,
INCLUDING NEGROES AND OTHER MINORITIES.  IT IS, THEREFORE, ESPECIALLY
SIGNIFICANT, EVEN FROM THIS DISTANT VANTAGE POINT, THAT DESPITE THE
EVIDENT INTENT OF THE ORDINANCE TO HAVE MUNICIPAL AUTHORITIES SEEK OUT
CITY-WIDE ASSOCIATIONS AND INTEREST GROUPS, THE CITY OFFICIAL MOST
RESPONSIBLE, SHORT OF THE MAYOR, FOR THE COMPOSITION OF THE PANEL
CONFESSED IGNORANCE OF MANY OF THE ORGANIZATIONS FROM WHICH NOMINATIONS
TO THE PANEL MIGHT HAVE BEEN MADE AND WHICH MIGHT HAVE PUT FORWARD
MERITORIOUS SUGGESTIONS FOR SCHOOL BOARD MEMBERSHIP.  THERE WAS ALSO
HIGHLY PROBATIVE EVIDENCEWITH RESPECT TO THE MAYOR'S STATEMENT THAT HE
INTENDED TO APPOINT NO MORE NEGROES TO THE SCHOOL BOARD.  THESE FACT,
WHEN SEEN THROUGH THE EYES OF JUDGES FAMILIAR WITH THE CONTEXT IN WHICH
THEY OCCURRED, MAY HAVE SPECIAL SIGNIFICANCE THAT IS LOST ON THOSE WITH
ONLY THE PRINTED PAGE BEFORE THEM.  SOMETIMES A WORD, A GESTURE OR AN
ATTITUDE TELLS A SPECIAL STORY TO THOSE WHO ARE PART OF THE SURROUNDING
MILIEU.  THIS IS ONE OF THOSE SITUATIONS, AND I WOULD NOT PURPORT TO
REASSESS THE FACTS AND OVERTURN THE CONSIDERED JUDGMENT OF THE COURT OF
APPEALS. 

THE COURT THAT THE TESTIMONY ABOUT THE MAYOR'S STATEMENT CONCERNING
SCHOOL MEMBERSHIP FOR NEGROES WAS INADMISSIBLE HEARSAY AND WAS THUS
ENTITLED TO NO CREDENCE.  ANTE, AT 618 AND N. 19.BUT NOWHERE IN THIS
RECORD CAN ONE FIND A DENIAL BY MAYOR TATE THAT HE DID NOT SAY WHAT THE
TESTIMONY INDICATED.  HIS DECLARATION THAT HE WAS NOT GOING TO APPOINT
ANY MORE NEGROES TO THE SCHOOL BOARD WAS A STATEMENT OF FUTURE
INTENTION AND AS SUCH WAS QUITE PLAINLY ADMISSIBLE IN EVIDENCE. 

"(WHENEVER THE INTENTION IS OF ITSELF A DISTINCT AND MATERIAL FACT
IN A CHAIN OF CIRCUMSTANCES, IT MAY BE PROVED BY CONTEMPORANEOUS ORAL
OR WRITTEN DECLARATIONS OF THE PARTY. 

     "THE EXISTENCE OF A PARTICULAR INTENTION IN A CERTAIN PERSON
AT

  A CERTAIN TIME BEING A MATERIAL FACT TO BE PROVED, EVIDENCE THAT

  HE EXPRESSED THAT INTENTION AT THAT TIME IS AS DIRECT EVIDENCE OF

  THE FACT, AS HIS OWN TESTIMONY THAT HE THEN HAD THAT INTENTION

  WOULD BE."  MUTUAL INSURANCE CO. V. HILLMON, 145 U.S. 285, 295

  (1892). 

AS AN EMINENT COMMENTATOR HAS OBSERVED: 

"(IT IS NOW CLEAR THAT OUT-OF-COURT STATEMENTS WHICH TEND TO PROVE A
PLAN, SUBJECT, OR INTENTION OF THE DECLARANT ARE ADMISSIBLE, SUBJECT TO
THE USUAL LIMITATIONS AS TO REMOTENESS IN TIME AND APPARENT SINCERITY
COMMON TO ALL DECLARATIONS OF MENTAL STATE, TO PROVE THAT THE PLAN,
DESIGN, OR INTENTION OF THE DECLARANT WAS CARRIED OUT BY THE
DECLARANT."  C. MCCORMICK, EVIDENCE 295, P. 697 (2D ED. 1972). 

MORE IMPORTANTLY, THE STATEMENT EVIDENCING THE MAYOR'S ATTITUDE
TOWARD NEGROES AND THEIR APPOINTMENT TO THE SCHOOL BOARD WAS SIMPLY NOT
HEARSAY.  AT THE TIME THAT THE CHALLENGED STATEMENT WAS ASSERTEDLY MADE
AND WHEN IT WAS LATER RELATED BY THE WITNESS WHO SAW THE MAYOR MAKE IT
ON TELEVISION, /6/  MAYOR TATE WAS STILL IN OFFICE AND A PARTY TO THE
LAWSUIT.  THE STATEMENT WAS AN ADMISSION ON HIS PART, AND AS SUCH IT
WAS NOT HEARSAY.  THIS ELEMENTARY PROPOSITION OF EVIDENCE LAW HAS MOST
RECENTLY BEEN RECOGNIZED BY THE DRAFTSMEN OF THE PROPOSED RULES OF
EVIDENCE FOR THE UNITED STATES COURTS AND MAGISTRATES.  RULE 801 (D)(2)
EXPRESSLY ACKNOWLEDGES THAT AN ADMISSION BY A PARTY-OPPONENT IS NOT
HEARSAY IF THE STATEMENT IS OFFERED AGAINST THE PARTY AND WAS ACTUALLY
MADE BY HIM IN EITHER HIS INDIVIDUAL OR REPRESENTATIVE CAPACITY.  THE
ADVISORY COMMITTEE'S NOTE SUCCINCTLY OUTLINES THE REASONS JUSTIFYING
THE RULE: 

"ADMISSION BY A PARTY-OPPONENT ARE EXCLUDED FROM THE CATEGORY

  OF HEARSAY ON THE THEORY THAT THEIR ADMISSIBILITY IN EVIDENCE IS

  THE RESULT OF THE ADVERSARY SYSTEM RATHER THAN SATISFACTION OF

  THE CONDITIONS OF THE HEARSAY RULE.  STRAHORN, A RECONSIDERATION

  OF THE HEARSAY RULE AND ADMISSIONS, 85 U. PA. L. REV. 484, 564

  (1937); MORGAN, BASIC PROBLEMS OF EVIDENCE 265 (1962); WIGMORE

  1048.  NO GUARANTEE OF TRUSTWORTHINESS IS REQUIRED IN THE CASE OF

  AN ADMISSION.  THE FREEDOM WHICH ADMISSIONS HAVE ENJOYED FROM

  TECHNICAL DEMANDS OF SEARCHING FOR AN ASSURANCE OF

  TRUSTWORTHINESS IN SOME AGAINST-INTEREST CIRCUMSTANCE, AND FROM

THE RESTRICTIVE INFLUENCES OF THE OPINION RULE AND THE RULE

  REQUIRING FIRSTHAND KNOWLEDGE, WHEN TAKEN WITH THE APPARENTLY

  PREVALENT SATISFACTION WITH THE RESULTS, CALLS FOR GENEROUS

  TREATMENT OF THIS AVENUE TO ADMISSIBILITY." 

THE DISTRICT COURT, THEREFORE, WAS IN ERROR IN REFUSING TO ADMIT THE
MAYOR'S STATEMENT IN EVIDENCE, AND THE COURT OF APPEALS WAS CORRECT IN
CONSIDERING IT AND GIVING IT THE WEIGHT IT DESERVED.  ITS CONCLUSION
WAS THAT THE STATEMENT SUPPORTED AN INFERENCE THAT THERE WAS RACIAL
DISCRIMINATION IN THE FORMATION OF THE NOMINATING PANEL.  BUT THIS
COURT NOW SAYS THAT THE INFERENCE IS NOT A STRONG ONE AND IS
INSUFFICIENT, ALONG WITH THE OTHER EVIDENCE, TO SUSTAIN THE JUDGMENT. 
IT IS AT PRECISELY THIS POINT, HOWEVER, THAT I WOULD NOT PROFESS
SUPERIOR INSIGHT AS TO THE MEANING OF "LOCAL" FACTS AND OVERRIDE THE
JUDGMENT OF THE COURT OF APPEALS WITH RESPECT TO THE ISSUE OF
DISCRIMINATION. 

MY DISAGREEMENT WITH THE COURT DOES NOT GO BEYOND WHAT I CONSIDER ITS
IMPROVIDENT EXERCISE OF A FACTFINDING ROLE IN THIS PARTICULAR CASE.  I
DO NOT QUESTION THE LONG-ESTABLISHED PRINCIPLE THAT THIS COURT HAS A
SPECIAL RESPONSIBILITY, IF NOT AN AFFIRMATIVE DUTY, TO ENSURE BY
INDEPENDENT REVIEW OF THE FACTS THAT THE CONSTITUTION IS NOT FRITTERED
AWAY. 

"THIS COURT'S DUTY IS NOT LIMITED TO THE ELABORATION OF
CONSTITUTIONAL PRINCIPLES; WE MUST ALSO IN PROPER CASES REVIEW THE
EVIDENCE TO MAKE CERTAIN THAT THOSE PRINCIPLES HAVE BEEN
CONSTITUTIONALLY APPLIED."  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254, 285 (1964).  SIMILARLY, 

"(THAT THE QUESTION IS ONE OF FACT DOES NOT RELIEVE US OF THE DUTY
TO DETERMINE WHETHER IN TRUTH A FEDERAL RIGHT HAS BEEN DENIED.  . . .
IF THIS REQUIRES AN EXAMINATION OF EVIDENCE, THAT EXAMINATION MUST BE
MADE.  OTHERWISE, REVIEW BY THIS COURT WOULD FAIL OF ITS PURPOSE IN
SAFEGUARDING CONSTITUTIONAL RIGHTS."  NORRIS V. ALABAMA, 294 U.S. 587,
589 - 590 (1935).  THE CONSTITUTIONAL OBLIGATION OF THIS COURT,
THEREFORE, IS TO SCRUTINIZE A RECORD IN A CASE RAISING FEDERAL
CONSTITUTIONAL QUESTIONS WITH DETACHMENT AND CIRCUMSPECTION, AND ALWAYS
WITH AN EYE TOWARD THE IMPACT OF FACTUAL DETERMINATIONS ON THE FEDERAL
RIGHT ASSERTED. 

BUT THIS HAS NEVER BEEN THOUGHT TO BE A LICENSE TO RUMAGE THROUGH A
RECORD LOOKING FOR SHREDS OF EVIDENCE THAT WILL DISCREDIT THE JUDGMENT
UNDER REVIEW AND SUGGEST A CONTRARY CONCLUSION.  QUITE ASSUREDLY,
REASONABLE MEN CAN, WILL, AND OFTEN SHOULD DIFFER AS TO QUESTIONS OF
FACT AS WELL AS LAW.  LIKEWISE, THE RECORDS IN MANY CASES COMING TO
THIS COURT CONTAIN COMPLICATED, INTERWOVEN QUESTIONS OF WHAT HAVE BEEN
DESIGNATED AS "LAW AND FACT."  SE H. HART & H. WECHSLER, SUPRA, AT 601
610.  "(IT IS ALMOST IMPOSSIBLE (, HOWEVER,) TO CONCEIVE HOW THIS
COURT MIGHT CONTINUE TO FUNCTION EFFECTIVELY WERE WE TO RESOLVE AFRESH
THE UNDERLYING FACTUAL DISPUTES IN ALL CASES CONTAINING CONSTITUTIONAL
ISSUES."TIME, INC. V. PAPE, 401 U.S. 279, 294 (1971) (HARLAN, J.,
DISSENTING). 

IN THIS CASE, TWO INTERRELATED "FACTUAL" QUESTIONS ARE PRESENTED:
DID THE MAYOR MAKE THE STATEMENT EVIDENCING HIS ATTITUDE TOWARD
APPOINTING NEGROES TO THE SCHOOL BOARD AND, IF SO, IS THE INFERENCE
STRONG ENOUGH TO SUPPORT THE JUDGMENT OF THE COURT OF APPEALS?  THE
DISTRICT COURT APPARENTLY ASSUMED THE STATEMENT WAS MADE, BUT RULED IT
INADMISSIBLE HEARSAY THAT THE COURT SHOULD NOT CONSIDER.  THE COURT OF
APPEALS, HOWEVER, ACCEPTED THE MAKING OF THE STATEMENT AND REACHED THE
CONCLUSION, BASED ON THE STATEMENT, THAT "(IF THE MAYOR DECIDED, PRIOR
TO RECEIVING NOMINEES FROM THE PANEL TO EXCLUDE BLACK NOMINEES FROM
CONSIDERATION, AN INFERENCE MAY BE DRAWN THAT THE MAYOR IN SIMILAR
MANNER EXCLUDED BLACKS FROM CONSIDERATION AS MEMBERS OF THE 1971
PANEL."  472 F.2D, AT 616 N.9.  THE COURT APPARENTLY DISAGREES WITH THE
UNANIMOUS COURT OF APPEALS' ASSSESSMENT THAT THE STATEMENT WAS EVER
MADE, BUT SURELY THIS IS NOT THE TYPE OF HISTORICAL FACT THAT SHOULD
COMMAND THIS COURT'S ATTENTION, AT LEAST ABSENT SOME UNUSUALLY
EXTRAORDINARY OR COMPLICATING FACTORS.  AS FOR THE SECOND ISSUE --
WHETHER THE INFERENCE WAS STRONG ENOUGH TO SUPPORT THE JUDGMENT OF
RACIAL DISCRIMINATION -- I FAIL TO SEE HOW WE ARE BETTER EQUIPPED FOR
THIS DETERMINATION THAN OUR COUNTERPARTS ON THE COURT OF APPEALS. 

THE DISTRICT COURT, HAVING FAILED TO CONSIDER THE CASE WITH THE
MAYOR'S STATEMENT IN EVIDENCE, PROVIDES NO CRUTCH FOR THIS COURT.  IF
THE DISTRICT COURT'S ASSESSMENT OF THE PRESENCE OF RACIAL
DISCRIMINATION IS DEEMED A CRITICAL FACTOR, THE PROPER COURSE WOULD BE
TO REMAND THE CASE TO THE DISTRICT COURT, RATHER THAN TO REJECT, ON ITS
OWN MOTION, THE WEIGHT GIVEN TO THAT TESTIMONY BY THE COURT OF
APPEALS.  IN UNITED STATES V. MATLOCK, ANTE, AT 177 - 178, WHERE WE
DETERMINED THAT THE DISTRICT COURT HAD ERRONEOUSLY EXCLUDED EVIDENCE AS
HEARSAY, WE DETERMINED THE EVIDENCE SHOULD BE ADMITTED, BUT REMANDED
THE CASE TO THE DISTRICT COURT TO DETERMINE WHAT WEIGHT SHOULD BE GIVEN
TO THE EVIDENCE.  IN THE PRESENT POSTURE OF THIS CASE THE COURT IS IN
NO POSITION TO RELY ON ANY VIEW OF THE REVELANT AND ADMISSIBLE FACTS
OTHER THAN ITS OWN. 

I AM ALSO UNCONVINCED THAT WE MUST REVERSE EVERY ULTIMATE FACTUAL
CONCLUSION OF THE COURTS OF APPEALS WHENEVER WE DISAGREE WITH THEM OR
SIMPLY BECAUSE WE WOULD NOT HAVE ARRIVED AT THE SAME CONCLUSION HAD WE
BEEN DECIDING THE ISSUE IN THE FIRST INSTANCE.  WHERE AMPLE EVIDENCE
SUPPORTS THE COURT OF APPEALS' JUDGMENT AND REASONABLE MEN COULD MAKE
DIFFERENT ASSESSMENTS OF THE FACTS, THERE IS ROOM FOR DEFERRING TO THE
COURT OF APPEALS.  THIS IS ESPECIALLY TRUE WHERE ITS JUDGMENT RESTS ON
"AN INTENSELY LOCAL APPRAISAL" OF THE FACTS "IN THE LIGHT OF PAST AND
PRESENT REALITY . . . ."  WHITE V. REGESTER, 412 U.S. 755 769 - 770
(1973). 

I MUST DISSENT.  /7/ 

/1/  THIS WAS A "SHORT AND PLAIN STATEMENT OF THE CLAIM,"  AND WAS A
GENERAL ASSERTION THAT THERE HAD BEEN RACIALLY DISCRIMINATORY
APPOINTMENTS IN VIOLATION OF THE CHARTER.  AS THE COURT STATED IN
CONLEY V. GIBSON, 355 U.S. 41, 48 (1957), "(THE FEDERAL RULES REJECT
THE APPROACH THAT PLEADING IS A GAME OF SKILL IN WHICH ONE MISSTEP BY
COUNSEL MAY BE DECISIVE TO THE OUTCOME AND ACCEPT THE PRINCIPLE THAT
THE PURPOSE OF PLEADING IS TO FACILITATE A PROPER DECISION ON THE
MERITS."  A FAIR READING OF THE COMPLAINT SHOWS THAT THIS GENERAL CLAIM
WAS SUPPORTED BY ALLEGATIONS OF RACIAL DISCRIMINATION IN THE BODY OF
THE COMPLAINT AND THAT OTHER VIOLATIONS OF THE SUPPLEMENT WERE ASSERTED
"(IN ADDITION" TO THE ALLEGATIONS OF RACIAL DISCRIMINATION. 

/2/  AS TO ANOTHER SUBSIDIARY STATE LAW POINT, THE COURT STATED:
"SIMILARLY, WHILE IT IS CLEAR THAT THE MAYOR HAS NOT APPOINTED THE
CHIEF EXECUTIVE OFFICER OF THE VARIOUS ORGANIZATIONS SELECTED FOR
REPRESENTATION ON THE PANEL AS REQUIRED BY THE EDUCATIONAL SUPPLEMENT,
SUCH VIOLATIONS HAVE NO BEARING ON THE CHARGES OF RACIAL DISCRIMINATION
AND SHOULD ALSO BE DECIDED BY THE STATE COURTS." 

/3/  THIS CASE RAISES ENTIRELY SEPARATE ISSUES THAN WERE POSED IN
MINE WORKERS V. GIBBS, 383 U.S. 715 (1966), WHERE A STATE CLAIM WAS
PENDENT TO A FEDERAL STATUTORY CLAIM.  UNDER SUCH CIRCUMSTANCES, THE
ASHWANDER DOCTRINE IS INAPPLICABLE, SINCE THERE IS NO FEDERAL
CONSITIUTIONAL CLAIM, AND ONCE HAVING DECIDED THE FEDERAL CLAIM, UPON
WHICH JURISDICTION IS PREMISED, THE COURT MUST DETERMINE WHETHER IT IS
PROPER TO RESOLVE THE PENDENT STATE CLAIM AS WELL. 

/4/  THE GENERAL CLAIM OF DISCRIMINATION WAS NOT ABANDONED AT
TRIAL.  AS THE TRANSCRIPT SHOWS, THE STATUTORY CLAIM REMAINED "ONE OF
THE PIECES" IN THE "PICTURE" OF RACIAL DISCRIMINATION.  AFTER EVIDENCE
WAS TAKEN, RESPONDENTS CONTINUED TO PRESS THIS CLAIM IN THEIR POST
TRIAL BRIEF, WHICH STATED: 

"THE EVIDENCE PRESENTED CLEARLY DEMONSTRATES THAT THE ENTIRE SCHEME
OF APPOINTMENTS VIOLATED THE CENTRAL PRINCIPLE OF THE PANEL AS
EXPRESSED BY THE FRAMERS OF THE SUPPLEMENT.  IT IS CLEAR FROM THE
DOCUMENTS INTRODUCED BY THE DEFENDANT THAT THE PANEL METHOD OF
SELECTING SCHOOL BOARD MEMBERS WAS ADOPTED AFTER GREAT CONSIDERATION OF
A NUMBER OF ALTERNATIVES.  IT IS EQUALLY CLEAR THAT THE COMMISION
INTENDED THAT THE PANEL MECHANISM FUNCTION AS A SUBSTITUTE FOR OR
COUNTERPART OF POPULAR ELECTION; IT SHOULD THEREFORE CONSTITUTE A
BALANCED REPRESENTATION OF THE PEOPLE OF THE ENTIRE COMMUNITY."  THE
STATEMENT OF COUNSEL AT THE OPENING OF THE TRIAL OBVIOUSLY DID NOT
FULLY REFLECT OR ANTICIPATE THE EVIDENCE AT TRIAL OR THE ISSUES
TENDERED AND ACCEPTED BY THE DISTRICT COURT.  THAT COURT, RATHER THAN
DECIDING THE STATE LAW ISSUES AS PART OF THE CONSTITUTIONAL CLAIM,
EXPRESSLY LEFT THEM FOR RESOLUTION IN THE STATE COURTS.  THE FACT THAT
A STATE LAW CLAIM IS PRESENTED WITH A CONSTITUTIONAL ARGUMENT DOES NOT
REMOVE THE CLAIM AS AN ALTERNATIVE GROUND OF DECISION. 

/5/  IN ARGUING THAT THE CLAIM WAS INSUBSTANTIAL, THE MAJORITY
ATTACKS A STRAW MAN.  IT ASSUMES THAT THE CLAIM COULD ONLY HAVE BEEN
BASED ON 12 - 206(C) OF THE CHARTER, WHICH RELATES TO THE SELECTION OF
AT-LARGE MEMBERS OF THE PANEL.  BUT THE CLAIM ADVANCED BY RESPONDENTS
WAS THAT THE FRAMERS OF THE CHARTER INTENDED THAT THE NINE
ORGANIZATIONAL SEATS ON THE PANEL, SELECTED UNDER 12 - 206(B), WHEN
COMBINED WITH THE FOUR AT-LARGE SELECTIONS, REPRESENT A RACIAL CROSS

/6/  TR. OF ORAL ARG. 31. 

/7/  I DO AGREE WITH THE COURT THAT THE REMEDY AGAINST THE INCUMBENT
MAYOR RIZZO WAS IMPROVIDENT.  SEE SPOMER V. LITTLETON, 414 U.S. 514
(1974).     JOHN MATTIONI ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

EDWIN D. WOLF ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 
..END :












EDELMAN V. JORDAN, 415 U.S. 651 


       EDELMAN, DIRECTOR, DEPARTMENT OF PUBLIC AID OF ILLINOIS V.

           JORDAN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 72 - 1410.  ARGUED DECEMBER 12, 1973 -- DECIDED

        MARCH 25, 1974; (472 F.2D 985, REVERSED AND REMANDED.) 


    RESPONDENT BROUGHT THIS CLASS ACTION FOR INJUCTIVE AND

  DECLARATORY RELIEF AGAINST THE ILLINOIS OFFICIALS ADMINISTERING

  THE FEDERAL-STATE PROGRAMS OF AID TO THE AGED, BLIND, AND

  DISABLED (AABD), WHICH ARE FUNDED EQUALLY BY THE STATE AND

  FEDERAL GOVERNMENTS, CONTENDING THAT THEY WERE VIOLATING FEDERAL

  LAW AND DENYING EQUAL PROTECTION OF THE LAWS BY FOLLOWING STATE

  REGULATIONS THAT DID NOT COMPLY WITH THE FEDERAL TIME LIMITS

  WITHIN WHICH PARTICIPATING STATES HAD TO PROCESS AND MAKE GRANTS

  WITH RESPECT TO AABD APPLICATIONS.  THE DISTRICT COURT BY A

  PERMANENT INJUNCTION REQUIRED COMPLIANCE WITH THE FEDERAL TIME

LIMITS AND ALSO ORDERED THE STATE OFFICIALS TO RELEASE AND REMIT

  AABD BENEFITS WRONGFULLY WITHHELD TO ALL PERSONS FOUND ELIGIBLE

  WHO HAD APPLIED THEREFOR BETWEEN JULY 1, 1968, THE DATE OF THE

  FEDERAL REGULATIONS, AND APRIL 16, 1971, THE DATE OF THE COURT'S

  PRELIMINARY INJUNCTION.  THE COURT OF APPEALS AFFIRMED, REJECTING

  THE STATE OFFICIALS' CONTENTIONS THAT THE ELEVENTH AMENDMENT

  BARRED THE AWARD OF THE RETROACTIVE BENEFITS AND THAT THE

  JUDGMENT OF INCONSISTENCY BETWEEN FEDERAL REGULATIONS AND STATE

  PROVISIONS COULD BE GIVEN ONLY PROSPECTIVE EFFECT.  HELD:  THE

ELEVENTH AMENDMENT OF THE CONSTITUTION BARS THAT PORTION OF THE

  DISTRICT COURT'S DECREE THAT ORDERED RETROACTIVE PAYMENT OF

  BENEFITS.  PP. 658 - 678. 

     (A) A SUIT BY PRIVATE PARTIES SEEKING TO IMPOSE A LIABILITY

  PAYABLE FROM PUBLIC FUNDS IN THE STATE TREASURY IS FORECLOSED BY

THE AMENDMENT IF THE STATE DOES NOT CONSENT TO SUIT.  PP. 662 -

  663. 

     (B) THE COURT OF APPEALS ERRED IN HOLDING THAT EX PARTE YOUNG,

  209 U.S. 123, WHICH AWARDED ONLY PROSPECTIVE RELIEF, DID NOT

  PRECLUDE THE RETROACTIVE MONETARY AWARD HERE ON THE GROUND THAT

  IT WAS AN "EQUITABLE RESTITUTION,"SINCE THAT AWARD, THOUGH ON ITS

  FACE DIRECTED AGAINST THE STATE OFFICIAL INDIVIDUALLY, AS A

  PRACTICAL MATTER COULD BE SATISFIED ONLY FROM THE GENERAL

  REVENUES OF THE STATE AND WAS INDISTINGUISHABLE FROM AN AWARD OF

  DAMAGES AGAINST THE STATE.  FORD MOTOR CO.V. DEPARTMENT OF

  TREASURY, 323 U.S. 459, FOLLOWED.  SHAPIRO V. THOMPSON, 394 U.S.

  618; STATE DEPT. OF HEALTH AND REHABILITATION SERVICES V. ZARATE,

  407 U.S. 918; STERRETT V MOTHERS' & CHILDREN'S RIGHTS

  ORGANIZATION , 409 U.S. 809; WYMAN V. BOWENS, 397 U.S. 49,

  DISAPPROVED TO THE EXTENT THAT THEIR HOLDINGS DO NOT COMPORT WITH

  THE HOLDING IN THE INSTANT CASE ON THE ELEVENTH AMENDMENT ISSUE. 

  PP. 663 - 671. 

     (C) THE STATE OF ILLINOIS DID NOT WAIVE ITS ELEVENTH AMENDMENT

  IMMUNITY AND CONSENT TO THE BRINGING OF RESPONDENT'S SUIT BY

  PARTICIPATING IN THE FEDERAL AABD PROGRM.  PARDEN V. TERMINAL R.

  CO., 377 U.S. 184, AND PETTY V. TENNESSEE-MISSOURI BRIDGE COMM'N,

  359 U.S. 275, DISTINGUISHED.  NOR DOES THE MERE FACT THAT A STATE

  PARTICIPATES IN A PROGRAM PARTIALLY FUNDED BY THE FEDERAL

  GOVERNMENT MANIFEST CONSENT BY THE STATE TO BE SUED IN FEDERAL

COURTS.  PP. 671 - 674. 

     (D) THE COURT OF APPEALS PROPERLY CONSIDERED THE ELEVENTH

  AMENDMENT DEFENSE, WHICH THE STATE OFFICIALS DID NOT ASSERT IN

  THE DISTRICT COURT, SINCE THAT DEFENSE PARTAKES OF THE NATURE OF

  A JURISDICTIONAL BAR.  FORD MOTOR CO. V. DEPARTMENT OF TREASURY,

  SUPRA.  PP. 677 - 678. 

     REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, AND POWELL, JJ., JOINED. 

  DOUGLAS, J., POST, P. 678, AND BRENNAN, J., POST, P. 687, FILED

  DISSENTING OPINIONS.  MARSHALL, J., FILED A DISSENTING OPINION,

  IN WHICH BLACKMUN, J., JOINED, POST, P. 688. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENT JOHN JORDAN FILED A COMPLAINT IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, INDIVIDUALLY AND
AS A REPRESENTATIVE OF A CLASS, SEEKING DECLARATORY AND INJUNCTIVE
RELIEF AGAINST TWO FORMER DIRECTORS OF THE ILLINOIS DEPARTMENT OF
PUBLIC AID, THE DIRECTOR OF THE COOK COUNTY DEPARTMENT OF PUBLIC AID,
AND THE COMPTROLLER OF COOK COUNTY.  RESPONDENT ALLEGED THAT THESE
STATE OFFICIALS WERE ADMINISTERING THE FEDERAL-STATE PROGRAMS OF AID TO
THE AGED, BLIND, OR DISABLED (AABD) IN A MANNER INCONSISTENT WITH
VARIOUS FEDERAL REGULATIONS AND WITH THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION.  /1/ 

AABD IS ONE OF THE CATEGORICAL AID PROGRAMS ADMINISTERED BY THE
ILLINOIS DEPARTMENT OF PUBLIC AID PURSUANT TO THE ILLINOIS PUBLIC AID
CODE, ILL. REV. STATE., C. 23, 3 - 1 THROUGH 3 - 12 (1973).  UNDER THE
SOCIAL SECURITY ACT, THE PROGRAM IS FUNDED EQUALLY BY THE STATE AND THE
FEDERAL GOVERNMENTS.  42 U.S.C. 1382 - 1385 (1964 ED., SUPP. V) /2/
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), WHICH
ADMINISTERS THESE PAYMENTS FOR THE FEDERAL GOVERNMENT, ISSUED
REGULATIONS PRESCRIBING MAXIMUM PERMISSIBLE TIME STANDARDS WITHIN WHICH
STATES PARTICIPATING IN THE PROGRAM HAD TO PROCESS AABD APPLICATIONS. 
THOSE REGULATIONS, ORIGINALLY ISSUED IN 1968, REQUIRED, AT THE TIME OF
THE INSTITUTION OF THIS SUIT, THAT ELIGIBILITY DETERMINATIONS MUST BE
MADE BY THE STATES WITHIN 30 DAYS OF RECEIPT OF APPLICATIONS FOR AID TO
THE AGED AND BLIND, AND WITHIN 45 DAYS OF RECEIPT OF APPLICATIONS FOR
AID TO THE DISABLED.  FOR THOSE PERSONS FOUND ELIGIBLE, THE ASSISTANCE
CHECK WAS REQUIRED TO BE RECEIVED BY THEM WITHIN THE APPLICABLE TIME
PERIOD.  45 CFR 206.10(A) (3).  /3/ 

DURING THE PERIOD IN WHICH THE FEDERAL REGULATIONS WENT INTO EFFECT,
ILLINOIS PUBLIC AID OFFICIALS WERE ADMINISTERING THE BENEFITS PURSUANT
TO THEIR OWN REGULATIONS AS PROVIDED IN THE CATEGORICAL ASSISTANCE
MANUAL OF THE ILLINOIS DEPARTMENT OF PUBLIC AID.  /4/  RESPONDENT'S
COMPLAINT CHARGED THAT THE ILLINOIS DEFENDANTS, OPERATING UNDER THOSE
REGULATIONS, WERE IMPROPERLY AUTHORIZING GRANTS TO COMMENCE ONLY WITH
THE MONTH IN WHICH AN APPLICATION WAS APPROVED AND NOT INCLUDING PRIOR
ELIGIBILITY MONTHS FOR WHICH AN APPLICANT WAS ENTITLED TO AID UNDER
FEDERAL LAW.  THE COMPLAINT ALSO ALLEGED THAT THE ILLINOIS DEFENDANTS
WERE NOT PROCESSING THE APPLICATIONS WITHIN THE APPLICABLE TIME
REQUIREMENTS OF THE FEDERAL REGULATIONS; SPECIFICALLY, RESPONDENT
ALLEGED THAT HIS OWN APPLICATION FOR DISABILITY BENEFITS WAS NOT
ENACTED ON BY THE ILLINOIS DEPARTMENT OF PUBLIC AID FOR ALMOST FOUR
MONTHS.  ACTIONS OF THE ILLINOIS OFFICIALS WERE ALLEGED TO VIOLATE
FEDERAL LAW AND DENY THE EQUAL PROTECTION OF THE LAWS.  RESPONDENT'S
PRAYER REQUESTED DECLARATORY AND INJUNCTIVE RELIEF, AND SPECIFICALLY
REQUESTED "A PERMANENT INJUNCTION ENJOINING THE DEFENDANTS TO AWARD TO
THE ENTIRE CLASS OF PLAINTIFFS ALL AABD BENEFITS WRONGFULLY WITHHELD." 

IN ITS JUDGMENT OF MARCH 15, 1972, THE DISTRICT COURT DECLARED 4004
OF THE ILLINOIS MANUAL TO BE INVALID INSOFAR AS IT WAS INCONSISTENT
WITH THE FEDERAL REGULATIONS FOUND IN 45 CFR 206.10(A)(3), AND GRANTED
A PERMANENT INJUNCTION REQUIRING COMPLIANCE WITH THE FEDERAL TIME
LIMITS FOR PROCESSING AND PAYING AABD APPLICANTS.  THE DISTRICT COURT,
IN PARAGRAPH 5 OF ITS JUDGMENT, ALSO ORDERED THE STATE OFFICIALS TO
"RELEASE AND REMIT AABD BENEFITS WRONGFULLY WITHHELD TO ALL APPLICANTS
FOR AABD IN THE STATE OF ILLINOIS WHO APPLIED BETWEEN JULY 1, 1968 (THE
DATE OF THE FEDERAL REGULATIONS) AND APRIL 16, 197(1) (THE DATE OF THE
PRELIMINARY INJUNCTION ISSUED BY THE DISTRICT COURT) AND WERE
DETERMINED ELIGIBLE.  . . ."  /5/ 

ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT, THE ILLINOIS OFFICIALS CONTENDED, INTER ALIA, THAT THE
ELEVENTH AMENDMENT BARRED THE AWARD OF RETROACTIVE BENEFITS, THAT THE
JUDGMENT OF INCONSISTENCY BETWEEN THE FEDERAL REGULATIONS AND THE
PROVISIONS OF THE ILLINOIS CATEGORICAL ASSISTANCE MANUAL COULD BE GIVEN
PROSPECTIVE EFFECT ONLY, AND THAT THE FEDERAL REGULATIONS IN QUESTION
WERE INCONSISTENT WITH THE SOCIAL SECURITY THE COURT OF APPEALS
REJECTED THESE CONTENTIONS AND AFFIRMED THE JUDGMENT OF THE DISTRICT
COURT.  JORDAN V. WEAVER, 472 F.2D 985 (1973).  /6/  BECAUSE OF AN
APPARENT CONFLICT ON THE ELEVENTH AMENDMENT ISSUE WITH THE DECISION OF
THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN ROTHSTEIN V. WYMAN, 467
F.2D 226 (1972), CERT. DENIED, 411 U.S. 921 (1973), WE GRANTED THE
PETITION FOR CERTIORARI FILED BY PETITIONER JOEL EDELMAN, WHO IS THE
PRESENT DIRECTOR OF THE ILLINOIS DEPARTMENT OF PUBLIC AID, AND
SUCCESSOR TO THE FORMER DIRECTORS SUED BELOW.  412 U.S. 937 (1973). 
THE PETITION FOR CERTIORARI RAISED THE SAME CONTENTIONS URGED BY THE
PETITIONER IN THE COURT OF APPEALS.  /7/  BECAUSE WE BELIEVE THE COURT
OF APPEALS ERRED IN ITS DISPOSITION OF THE ELEVENTH AMENDMENT CLAIM, WE
REVERSE THAT PORTION OF THE COURT OF APPEALS DECISION WHICH AFFIRMED
THE DISTRICT COURT'S ORDER THAT RETROACTIVE BENEFITS BE PAID BY THE
ILLINOIS STATE OFFICIALS.  /8/ 

THE HISTORICAL BASIS OF THE ELEVENTH AMENDMENT HAS BEEN OFT STATED,
AND IT REPRESENTS ONE OF THE MORE DRAMATIC EXAMPLES OF THIS COURT'S
EFFORT TO DERIVE MEANING FROM THE DOCUMENT GIVEN TO THE NATION BY THE
FRAMERS NEARLY 200 YEARS AGO.  A LEADING HISTORIAN OF THE COURT TELLS
US: 

"THE RIGHT OF THE FEDERAL JUDICIARY TO SUMMON A STATE AS DEFENDANT
AND TO ADJUDICATE ITS RIGHTS AND LIABILITIES HAD BEEN THE SUBJECT OF
DEEP APPREHENSION AND OF ACTIVE DEBATE AT THE TIME OF THE ADOPTION OF
THE CONSTITUTION; BUT THE EXISTENCE OF ANY SUCH RIGHT HAD BEEN
DISCLAIMED BY MANY OF THE MOST EMINENT ADVOCATES OF THE NEW FEDERAL
GOVERNMENT, AND IT WAS LARGELY OWING TO THEIR SUCCESSFUL DISSIPATION OF
THE FEAR OF THE EXISTENCE OF SUCH FEDERAL POWER THAT THE CONSTITUTION
WAS FINALLY ADOPTED."  1 C. WARREN, THE SUPREME COURT IN UNITED STATES
HISTORY 91 (REV.ED.1937). 

DESPITE SUCH DISCLAIMERS, /9/  THE VERY FIRST SUIT ENTERED IN THIS
COURT AT ITS FEBRUARY TERM IN 1791 WAS BROUGHT AGAINST THE STATE OF
MARYLAND BY A FIRM OF DUTCH BANKERS AS CREDITORS.  IBID.; VANSTOPHORST
V. MARYLAND, SEE 2 DALL.  401.  THE SUBSEQUENT YEAR BROUGHT THE
INSITITUION OF ADDITIONAL SUITS AGAINST OTHER STATES, AND CAUSED
CONSIDERABLE ALARM AND CONSTERNATION IN THE COUNTRY. 

THE ISSUE WAS SQUARELY PRESENTED TO THE COURT IN A SUIT BROUGHT AT
THE AUGUST 1792 TERM BY TWO CITIZENS OF SOUTH CAROLINA, EXECUTORS OF
BRITISH CREDITOR, AGAINST THE STATE OF GEORGIA.  AFTER A YEAR'S
POSTPONEMENT FOR PREPARATION ON THE PART OF THE STATE OF GEORGIA, THE
COURT, AFTER ARGUMENT, RENDERED IN FEBRUARY 1793, ITS SHORTLIVED
DECISION IN CHISHOLM V. GEORGIA, 2 DALL.  419.  THE DECISION IN THAT
CASE, THAT A STATE WAS LIABLE TO SUIT BY A CITIZEN OF ANOTHER STATE OR
OF A FOREIGN COUNTRY, LITERALLY SHOCKED THE NATION.  SENTIMENT FOR
PASSAGE OF A CONSTITUTIONAL AMENDMENT TO OVERRIDE THE DECISION RAPIDLY
GAINED MOMENTUM, AND FIVE YEARS AFTER CHISHOLM THE ELEVENTH AMENDMENT
WAS OFFICIALLY ANNOUNCED BY PRESIDENT JOHN ADAMS.  UNCHANGED SINCE
THEN, THE AMENDMENT PROVIDES: 

"THE JUDICIAL POWER OF THE UNITED STATES SHALL NOT BE CONSTRUED TO
EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED AGAINST
ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER STATE, OR BY CITIZENS
OR SUBJECTS OF ANY FOREIGN STATE." 

WHILE THE AMENDMENT BY ITS TERMS DOES NOT BAR SUITS AGAINST A STATE BY
ITS OWN CITIZENS, THIS COURT HAS CONSISTENTLY HELD THAT AN UNCONSENTING
STATE IS IMMUNE FROM SUITS BROUGHT IN FEDERAL COURTS BY HER OWN
CITIZENS AS WELL AS BY CITIZENS OF ANOTHER STATE.  HANS V. LOUISIANA,
134 U.S. 1 (1890); DUHNE V. NEW JERSEY, 251 U.S. 311 (1920); GREAT
NORTHERN LIFE INSURANCE CO. V. READ, 322 U.S. 47 (1944); PARDEN V.
TERMINAL R. CO., 377 U.S. 184 (1964); EMPLOYEES V. DEPARTMENT OF PUBLIC
HEALTH AND WELFARE, 411 U.S. 279 (1973).  IT IS ALSO WELL ESTABLISHED
THAT EVEN THOUGH A STATE IS NOT NAMED A PARTY TO THE ACTION, THE SUIT
MAY NONETHELESS BE BARRED BY THE ELEVENTH AMENDMENT.  IN FORD MOTOR CO.
V. DEPARTMENT OF TREASURY, 323 U.S. 459 (1945), THE COURT SAID: 

"(WHEN THE ACTION IS IN ESSENCE ONE FOR THE RECOVERY OF MONEY FROM
THE STATE, THE STATE IS THE REAL, SUBSTANTIAL PARTY IN INTEREST AND IS
ENTITLED TO INVOKE ITS SOVEREIGN IMMUNITY FROM SUIT EVEN THOUGH
INDIVIDUAL OFFICIALS ARE NOMINAL DEFENDANTS."  ID., AT 464.  THUS THE
RULE HAS EVOLVED THAT A SUIT BY PRIVATE PARTIES SEEKING TO IMPOSE A
LIABILITY WHICH MUST BE PAID FROM PUBLIC FUNDS IN THE STATE TREASURY IS
BARRED BY THE ELEVENTH AMENDMENT.  GREAT NORTHERN LIFE INSURANCE CO. V.
READ, SUPRA; KENNECOTT COPPER CORP. V. STATE TAX COMM'N, 327 U.S. 573
(1946). 

THE COURT OF APPEALS IN THIS CASE, WHILE RECOGNIZING THAT THE HANS
LINE OF CASES PERMITTED THE STATE TO RAISE THE ELEVENTH AMENDMENT AS A
DEFENSE TO SUIT BY ITS OWN CITIZENS, NEVERTHELESS CONCLUDED THAT THE
AMENDMENT DID NOT BAR THE AWARD OF RETROACTIVE PAYMENTS OF THE
STATUTORY BENEFITS FOUND TO HAVE BEEN WRONGFULLY WITHHELD.  THE COURT
OF APPEALS HELD THAT THE ABOVE-CITED CASES, WHEN READ IN LIGHT OF THIS
COURT'S LANDMARK DECISION IN EX PARTE YOUNG, 209 U.S. 123 (1908), DO
NOT PRECLUDE THE GRANT OF SUCH A MONETARY AWARD IN THE NATURE OF
EQUITABLE RESTITUTION. 

PETITIONER CONCEDES THAT EX PARTE YOUNG, SUPRA, IS NO BAR TO THAT
PART OF THE DISTRICT COURT'S JUDGMENT THAT PROSPECTIVELY ENJOINED
PETITIONER'S PREDECESSORS FROM FAILING TO PROCESS APPLICATIONS WITHIN
THE TIME LIMITS ESTABLISHED BY THE FEDERAL REGULATIONS.  PETITIONER
ARGUES, HOWEVER, THAT EX PARTE YOUNG DOES NOT EXTEND SO FAR AS TO
PERMIT A SUIT WHICH SEEKS THE AWARD OF AN ACCRUED MONETARY LIABILITY
WHICH MUST BE MET FROM THE GENERAL REVENUES OF A STATE, ABSENT CONSENT
OR WAIVER BY THE STAE OF ITS ELEVENTH AMENDMENT IMMUNITY, AND THAT
THEREFORE THE AWARD OF RETROACTIVE BENEFITS BY THE DISTRICT COURT WAS
IMPROPER. 

EX PARTE YOUNG WAS A WATERSHED CASE IN WHICH THIS COURT HELD THAT
THE ELEVENTH AMENDMENT DID NOT BAR AN ACTION IN THE FEDERAL COURTS
SEEKING TO ENJOIN THE ATTORNEY GENERAL OF MINNESOTA FROM ENFORCING A
STATUTE CLAIMED TO VIOLATE THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION.  THIS HOLDING HAS PERMITTED THE CIVIL WAR
AMENDMENTS TO THE CONSTITUTION TO SERVE AS A SWORD, RATHER THAN MERELY
AS A SHIELD, FOR THOSE WHOM THEY WERE DESIGNED TO PROTECT.  BUT THE
RELIEF AWARDED IN EX PARTE YOUNG WAS PROSPECTIVE ONLY; THE ATTORNEY
GENERAL OF MINNESOTA WAS ENJOINED TO CONFORM HIS FUTURE CONDUCT OF THAT
OFFICE TO THE REQUIREMENT OF THE FOURTEENTH AMENDMENT.  SUCH RELIEF IS
ANALOGOUS TO THAT AWARDED BY THE DISTRICT COURT IN THE PROSPECTIVE
PORTION OF ITS ORDER UNDER REVIEW IN THIS CASE. 

BUT THE RETROACTIVE PORTION OF THE DISTRICT COURT'S ORDER HERE,
WHICH REQUIRES THE PAYMENT OF A VERY SUBSTANTIAL AMOUNT OF MONEY WHICH
THAT COURT HELD SHOULD HAVE BEEN PAID, BUT WAS NOT, STANDS ON QUITE A
DIFFERENT FOOTING.  THESE FUNDS WILL OBVIOUSLY NOT BE PAID OUT OF THE
POCKET OF PETITIONER EDELMAN.  ADDRESSING HIMSELF TO A SIMILAR
SITUATION IN ROTHSTEIN V. WYMAN, 467 F.2D 226 (CA2 1972), CERT. DENIED,
411 U.S. 921 (1973), JUDGE MCGOWAN /10/  OBSERVED FOR THE COURT: 

     "IT IS NOT PRETENDED THAT THESE PAYMENTS ARE TO COME FROM THE

  PERSONAL RESOURCES OF THESE APPELLANTS.  APPELLEES EXPRESSLY

  CONTEMPLATE THAT THEY WILL, RATHER, INVOLVE SUBSTANTIAL

  EXPENDITURES FROM THE PUBLIC FUNDS OF THE STATE.  . . . 

      "IT IS ONE THING TO TELL THE COMMISSIONER OF SOCIAL SERVICES

  THAT HE MUST COMPLY WITH THE FEDERAL STANDARDS FOR THE FUTURE IF

  THE STATE IS TO HAVE THE BENEFIT OF FEDERAL FUNDS IN THE PROGRAMS

  HE ADMINISTERS.  IT IS QUITE ANOTHER THING TO ORDER THE

  COMMISSIONER TO USE STATE FUNDS TO MAKE REPARATION FOR THE PAST. 

  THE LATTER WOULD APPEAR TO US TO FALL AFOUL OF THE ELEVENTH

  AMENDMENT IF THAT BASIC CONSTITUTIONAL PROVISION IS TO BE

  CONCEIVED OF AS HAVING ANY PRESENT FORCE."  ID., AT 236 - 237

  (FOOTNOTES OMITTED). 

WE AGREE WITH JUDGE MCGOWAN'S OBSERVATIONS.  THE FUNDS TO SATISFY
THE AWARD IN THIS CASE MUST INEVITABLY COME FROM THE GENERAL REVENUES
OF THE STATE OF ILLINOIS, AND THUS THE AWARD RESEMBLES FAR MORE CLOSELY
THE MONETARY AWARD AGAINST THE STATE ITSELF, FORD MOTOR CO. V.
DEPARTMENT OF TREASURY, SUPRA, THAN IT DOES THE PROSPECTIVE INJUNCTIVE
RELIEF AWARDED IN EX PARTE YOUNG. 

THE COURT OF APPEALS, IN UPHOLDING THE AWARD IN THIS CASE, HELD THAT
IT WAS PERMISSIBLE BECAUSE IT WAS IN THE FORM OF "EQUITABLE
RESTITUTION" INSTEAD OF DAMAGES, AND THEREFORE CAPABLE OF BEING
TAILORED IN SUCH A WAY AS TO MINIMIZE DISRUPTIONS OF THE STATE PROGRAM
OF CATEGORICAL ASSISTANCE.  BUT WE MUST JUDGE THE AWARD ACTUALLY MADE
IN THIS CASE, AND NOT ONE WHICH MIGHT HAVE BEEN DIFFERENTLY TAILORED IN
A DIFFERENT CASE, AND WE MUST JUDGE IT IN THE CONTEXT OF THE IMPORTANT
CONSTITUTIONAL PRINCIPLE EMBODIED IN THE ELEVENTH AMENDMENT.  /11/ 

WE DO NOT READ EX PARTE YOUNG OR SUBSEQUENT HOLDINGS OF THIS COURT
TO INDICATE THAT ANY FORM OF RELIEF MAY BE AWARDED AGAINST A STATE
OFFICER, NO MATTER HOW CLOSELY IT MAY PRACTICE RESEMBLE MONEY JUDGMENT
PAYABLE OUT OF THE STATE TREASURY, SO LONG AS THE RELIEF MAY BE LABELED
"EQUITABLE" IN NATURE.  THE COURT'S OPINION IN EX PARTE YOUNG HEWED TO
NO SUCH LINE.  ITS CITATION OF HAGOOD V. SOUTHERN, 177 U.S. 52 (1886),
AND IN RE AYERS, 123 U.S. 443 (1887), WHICH WERE BOTH ACTIONS AGAINST
STATE OFFICERS FOR SPECIFIC PERFORMANCE OF A CONTRACT TO WHICH THE
STATE WAS A PARTY, DEMONSTRATE THAT EQUITABLE RELIEF MAY BE BARRED BY
THE ELEVENTH AMENDMENT. 

AS IN MOST AREAS OF THE LAW, THE DIFFERENCE BETWEEN THE TYPE OF
RELIEF BARRED BY THE ELEVENTH AMENDMENT AND THAT PERMITTED UNDER EX
PARTE YOUNG WILL NOT IN MANY INSTANCES BE THAT BETWEEN DAY AND NIGHT. 
THE INJUNCTION ISSUED IN EX PARTE YOUNG WAS NOT TOTALLY WITHOUT EFFECT
ON THE STATE'S REVENUES, SINCE THE STATE LAW WHICH THE ATTORNEY GENERAL
WAS ENJOINED FROM ENFORCING PROVIDED SUBSTANTIAL MONETARY PENALTIES
AGAINST RAILROADS WHICH DID NOT CONFORM TO ITS PROVISIONS.  LATER CASES
FROM THIS COURT HAVE AUTHORIZED EQUITABLE RELIEF WHICH HAS PROBABLY HAD
GREATER IMPACT ON STATE TREASURIES THAN DID THAT AWARDED IN EX PARTE
YOUNG.  IN GRAHAM V. RICHARDSON, 403 U.S. 365 (1971), ARIZONA AND
PENNSYLVANIA WELFARE OFFICIALS WERE PROHIBITED FROM DENYING WELFARE
BENEFITS TO OTHERWISE QUALIFIED RECIPIENTS WHO WERE ALIENS.  IN
GOLDBERG V. KELLY, 397 U.S. 254 (1970), NEW YORK CITY WELFARE OFFICIALS
WERE ENJOINED FROM FOLLOWING NEW YORK STATE PROCEDURES WHICH AUTHORIZED
THE TERMINATION OF BENEFITS PAID TO WELFARE RECIPIENTS WITHOUT PRIOR
HEARING.  /12/  BUT THE FISCAL CONSEQUENCES TO STATE TREASURIES IN
THESE CASES WERE THE NECESSARY RESULT OF COMPLIANCE WITH DECREES WHICH
BY THEIR TERMS WERE PROSPECTIVE IN NATURE.  STATE OFFICIALS, IN ORDER
TO SHAPE THEIR OFFICIAL CONDUCT TO THE MANDATE OF THE COURT'S DECREES,
WOULD MORE LIKELY HAVE TO SPEND MONEY FROM THE STATE TREASURY THAN IF
THEY HAD BEEN LEFT FREE TO PURSUE THEIR PREVIOUS COURSE OF CONDUCT. 
SUCH AN ANCILLARY EFFECT ON THE STATE TREASURY IS A PERMISSIBLE AND
OFTEN AN INEVITABLE CONSEQUENCE OF THE PRINCIPLE ANNOUNCED IN EX PARTE
YOUNG, SUPRA. 

BUT THAT PORTION OF THE DISTRICT COURT'S DECREE WHICH PETITIONER
CHALLENGES ON ELEVENTH AMENDMENT GROUNDS GOES MUCH FURTHER THAN ANY OF
THE CASES CITED.  IT REQUIRES PAYMENT OF STATE FUNDS, NOT AS A
NECESSARY CONSEQUENCE OF COMPLIANCE IN THE FUTURE WITH A SUBSTANTIVE
FEDERAL-QUESTION DETERMINATION, BUT AS A FORM OF COMPENSATION TO THOSE
WHOSE APPLICATIONS WERE PROCESSED ON THE SLOWER TIME SCHEDULE AT A TIME
WHEN PETITIONER WAS UNDER NO COURT-IMPOSED OBLIGATION TOCONFORM TO A
DIFFERENT STANDARD.  WHILE THE COURT OF APPEALS DESCRIBED THIS
RETROACTIVE AWARD OF MONETARY RELIEF AS A FORM OF "EQUITABLE
RESTITUTION,"  IT IS IN PRACTICAL EFFECT INDISTINGUISHABLE IN MANY
ASPECTS FROM AN AWARD OF DAMAGES AGAINST THE STATE.  IT WILL TO A
VIRTUAL CERTAINTY BE PAID FROM STATE FUNDS, AND NOT FROM THE POCKETS OF
THE INDIVIDUAL STATE OFFICIALS WHO WERE THE DEFENDANTS IN THE ACTION. 
IT IS MEASURED IN TERMS OF A MONETARY LOSS RESULTING FROM A PAST BREACH
OF A LEGAL DUTY ON THE PART OF THE DEFENDANT STATE OFFICIALS. 

WERE WE TO UPHOLD THIS PORTION OF THE DISTRICT COURT'S DECREE, WE
WOULD BE OBLIGATED TO OVERRULE THE COURT'S HOLDING IN FORD MOTOR CO. V.
DEPARTMENT OF TREASURY, SUPRA.  THERE A TAXPAYER WHO HAD, UNDER
PROTEST, PAID TAXES TO THE STATE OF INDIANA, SOUGHT A REFUND OF THOSE
TAXES FROM THE INDIANA STATE OFFICIALS WHO WERE CHARGED WITH THEIR
COLLECTION.  THE TAXPAYER CLAIMED THAT THE TAX HAD BEEN IMPOSED IN
VIOLATION OF THE UNITED STATES CONSTITUTION.  THE TERM "EQUITABLE
RESTITUTION" WOULD SEEM EVEN MORE APPLICABLE TO THE RELIEF SOUGHT IN
THAT CASE, SINCE THE TAXPAYER HAD AT ONE TIME HAD THE MONEY, AND PAID
IT OVER TO THE STATE PURSUANT TO AN ALLEGEDLY UNCONSTITUTIONAL TAX
EXACTION.  YET THIS COURT HAD NO HESITATION IN HOLDING THAT THE
TAXPAYER'S ACTION WAS A SUIT AGAINST THE STATE, AND BARRED BY THE
ELEVENTH AMENDMENT.  WE REACH A SIMILAR CONCLUSION WITH RESPECT TO THE
RETROACTIVE PORTION OF THE RELIEF AWARDED BY THE DISTRICT COURT IN THIS
CASE. 

THE COURT OF APPEALS EXPRESSED THE VIEW THAT ITS CONCLUSION ON THE
ELEVENTH AMENDMENT ISSUE WAS SUPPORTED BY THIS COURT'S HOLDING IN
DEPARTMENT OF EMPLOYMENT V. UNITED STATES, 385 U.S. 355 (1966).  THERE
THE UNITED STATES WAS HELD ENTITLED TO SUE THE COLORADO DEPARTMENT OF
EMPLOYMENT IN THE UNITED STATES DISTRICT COURT FOR REFUND OF
UNEMPLOYMENT COMPENSATION TAXES PAID UNDER PROTEST BY THE AMERICAN
NATIONAL RED CROSS, AN INSTRUMENTALITY OF THE UNITED STATES.  THE
DISCUSSION OF THE STATE'S ELEVENTH AMENDMENT CLAIM IS CONFINED TO THE
FOLLOWING SENTENCE IN THE OPINION: 

"WITH RESPECT TO APPELLANTS' CONTENTION THAT THE STATE OF COLORADO
HAS NOT CONSENTED TO SUIT IN A FEDERAL FORUM EVEN WHERE THE PLAINTIFF
IS THE UNITED STATES, SEE MONACO V. MISSISSIPPI, 292 U.S. 313 (1934),
AND EX PARTE YOUNG, 209 U.S. 123 (1908)."  ID., AT 358. 

MONACO V. MISSISSIPPI, 292 U.S. 313 (1934), REAFFIRMED THE PRINCIPLE
THAT THE ELEVENTH AMENDMENT WAS NO BAR TO A SUIT BY THE UNITED STATES
AGAINST A STATE.  ID., AT 329.  IN VIEW OF MR. JUSTICE HUGHES' VIGOROUS
REAFFIRMATION IN MONACO OF THE PRINCIPLES OF THE ELEVENTH AMENDMENT AND
SOVEREIGN IMMUNITY, WE THINK IT UNLIKELY THAT THE COURT IN DEPARTMENT
OF EMPLOYMENT V. UNITED STATES, IN CITING EX PARTE YOUNG AS WELL AS
MONACO, INTENDED TO FORESHADOW A DEPARTURE FROM THE RULE TO WHICH WE
ADHERE TODAY. 

THREE FAIRLY RECENT DISTRICT COURT JUDGMENTS REQUIRING STATE
DIRECTORS OF PUBLIC AID TO MAKE THE TYPE OF RETROACTIVE PAYMENT
INVOLVED HERE HAVE BEEN SUMMARILY AFFIRMED BY THIS COURT
NOTWITHSTANDING ELEVENTH AMENDMENT APPEALING FROM THE DISTRICT COURT
JUDGMENT.  /13/  SHAPIRO V. THOMPSON, 394 U.S. 618 (1969), IS THE ONLY
INSTANCE IN WHICH THE ELEVENTH AMENDMENT OBJECTION TO SUCH RETROACTIVE
RELIEF WAS ACTUALLY PRESENTED TO THIS COURT IN A CASE WHICH WAS ORALLY
ARGUED.  THE THREE-JUDGE DISTRICT COURT IN THAT CASE HAD ORDERED THE
RETROACTIVE PAYMENT OF WELFARE BENEFITS FOUND BY THAT COURT TO HAVE
BEEN UNLAWFULLY WITHHELD BECAUSE OF RESIDENCE REQUIREMENTS HELD
VIOLATIVE OF EQUAL PROTECTION.  270 F. SUPP. 331, 338 N. 5 (CONN.
1967).  THE COURT, WHILE AFFIRMING THE JUDGMENT, DID NOT IN ITS OPINION
REFER TO OR SUBSTANTIVELY TREAT THE ELEVENTH AMENDMENT ARGUMENT.  NOR,
OF COURSE, DID THE SUMMARY DISPOSITIONS OF THE THREE DISTRICT COURT
CASES CONTAIN ANY SUBSTANTIVE DISCUSSION OF THIS OR ANY OTHER ISSUES
RAISED BY THE PARTIES. 

THIS CASE, THEREFORE, IS THE FIRST OPPORTUNITY THE COURT HAS TAKEN
TO FULLY EXPLORE AND TREAT THE ELEVENTH AMENDMENT ASPECTS OF SUCH
RELIEF IN A WRITTEN OPINION.  SHAPIRO V. THOMPSON AND THESE THREE
SUMMARY AFFIRMANCES OBVIOUSLY ARE OF PRECEDENTIAL VALUE IN SUPPORT OF
THE CONTENTION THAT THE ELEVENTH AMDENDMENT DOES NOT BAR THE RELIEF
AWARDED BY THE DISTRICT COURT IN THIS CASE.  EQUALLY OBVIOUSLY, THEY
ARE NOT OF THE SAME PRECEDENTIAL VALUE AS WOULD BE AN OPINION OF THIS
COURT TREATING THE QUESTION ON THE MERITS.  SINCE WE DEAL WITH A
CONSTITUTIONAL QUESTION, WE ARE LESS CONSTRAINED BY THE PRINCIPLE OF
STARE DECISIS THAN WE ARE IN OTHER AREAS OF THE LAW.  /14/  HAVING NOW
HAD AN OPPORTUNITY TO MORE FULLY CONSIDER THE ELEVENTH AMENDMENT ISSUE
AFTER BRIEFING AND ARGUMENT, WE DISAPPROVE THE ELEVENTH AMENDMENT
HOLDINGS OF THOSE CASES TO THE EXTENT THAT THEY ARE INCONSISTENT WITH
OUR HOLDING TODAY. 

THE COURT OF APPEALS HELD IN THE ALTERNATIVE THAT EVEN IF THE
ELEVENTH AMENDMENT BE DEEMED A BAR TO THE RETORACTIVE RELIEF AWARDED
RESPONDENT IN THIS CASE, THE STATE OF ILLINOIS HAD WAIVED ITS ELEVENTH
AMENDMENT IMMUNITY AND CONSENTED TO THE BRINGING OF SUCH A SUIT BY
PARTICIPATING IN THE FEDERAL AABD PROGRAM.  THE COURT OF APPEALS RELIED
UPON OUR HOLDINGS IN PARDEN V. TERMINAL R. CO., 377 U.S. 184 (1964),
AND PETTY V. TENNESSEE-MISSOURI BRIDGE COMM'N, 359 U.S. 275 (1959), AND
ON THE DISSENTING OPINION OF JUDGE BRIGHT IN EMPLOYEES V. DEPARTMENT OF
PUBLIC HEALTH AND WELFARE, 452 F.2D 820, 827 (CA8 1971).  WHILE THE
HOLDING IN THE LATTER CASE WAS ULTIMATELY AFFIRMED BY THIS COURT IN
EMPLOYEES V. DEPARTMENT OF PUBLIC HEALTH AND WELFARE, 411 U.S. 279
(1973), WE DO NOT THINK THAT THE ANSWER TO THE WAIVER QUESTION TURNS ON
THE DISTINCTION BETWEEN PARDEN, SUPRA, AND EMPLOYEES, SUPRA.  BOTH
PARDEN AND EMPLOYEES INVOLVED A CONGRESSIONAL ENACTMENT WHICH BY ITS
TERMS AUTHORIZED SUIT BY DESIGNATED PLAINTIFFS AGAINST A GENERAL CLASS
OF DEFENDANTS WHICH LITERALLY INCLUDED STATES OR STATE
INSTRUMENTALITIES.  SIMILARLY, PETTY V. TENNESSEE-MISSOURI BRIDGE
COMM'N, SUPRA, INVOLVED CONGRESSIONAL APPROVAL, PURSUANT TO THE COMPACT
CLAUSE, OF A COMPACT BETWEEN TENNESSEE AND MISSOURI, WHICH PROVIDED
THAT EACH COMPACTING STATE WOULD HAVE THE POWER "TO CONTRACT, TO SUE,
AND BE SUED IN ITS OWN NAME."  THE QUESTION OF WAIVER OR CONSENT UNDER
THE ELEVENTH AMENDMENT WAS FOUND IN THOSE CASES TO TURN ON WHETHER
CONGRESS HAD INTENDED TO ABROGATE THE IMMUNITY IN QUESTION, AND WHETHER
THE STATE BY ITS PARTICIPATION IN THE PROGRAM AUTHORIZED BY CONGRESS
HAD IN EFFECT CONSENTED TO THE ABROGATION OF THAT IMMUNITY. 

BUT IN THIS CASE THE THRESHOLD FACT OF CONGRESSIONAL AUTHORIZATION
TO SUE A CLASS OF DEFENDANTS WHICH LITERALLY INCLUDES STATES IS WHOLLY
ABSENT.  THUS RESPONDENT IS NOT ONLY PRECLUDED FROM RELYING ON THIS
COURT'S HOLDING IN EMPLOYEES, BUT ON THIS COURT'S HOLDINGS IN PARDEN
AND PETTY AS WELL.  /15/ 

THE COURT OF APPEALS HELD THAT AS A MATTER OF FEDERAL LAW ILLINOIS
HAD "CONSTRUCTIVELY CONSENTED" TO THIS SUIT BY PARTICIPATING IN THE
FEDERAL AABD PROGRAM AND AGREEING TO ADMINISTER FEDERAL AND STATE FUNDS
IN COMPLIANCE WITH FEDERAL LAW.  CONSTRUCTIVE CONSENT IS NOT A DOCTRINE
COMMONLY ASSOCIATED WITH THE SURRENDER OF CONSTITUTIONAL RIGHTS, AND WE
SEE NO PLACE FOR IT HERE.  IN DECIDING WHETHER A STATE HAS WAIVED ITS
CONSTITUTIONAL PROTECTION UNDER THE ELEVENTH AMENDMENT, WE WILL FIND
WAIVER ONLY WHERE STATED "BY THE MOST EXPRESS LANGUAGE OR BY SUCH
OVERWHELMING IMPLICATIONS FROM THE TEXT AS (WILL) LEAVE NO ROOM FOR ANY
OTHER REASONABLE CONSTRUCTION."  MURRAY V. WILSON DISTILLING CO., 213
U.S. 151, 171 (1909).  WE SEE NO REASON TO RETREAT FROM THE COURT'S
STATEMENT IN GREAT NORTHERN INSURANCE CO. V. READ, 322 U.S., AT 54
(FOOTNOTE OMITTED): 

"(WHEN WE ARE DEALING WITH THE SOVEREIGN EXEMPTION FROM JUDICIAL
INTERFERENCE IN THE VITAL FIELD OF FINANCIAL ADMINISTRATION A CLEAR
DECLARATION OF THE STATE'S INTENTION TO SUBMIT ITS FISCAL PROBLEMS TO
OTHER COURTS THAN THOSE OF ITS OWN CREATION MUST BE FOUND." 

THE MERE FACT THAT A STATE PARTICIPATES IN A PROGRAM THROUGH WHICH
THE FEDERAL GOVERNMENT PROVIDES ASSISTANCE FOR THE OPERATION BY THE
STATE OF A SYSTEM OF PUBLIC AID IS NOT SUFFICIENT TO ESTABLISH CONSENT
ON THE PART OF THE STATE TO BE SUED IN THE FEDERAL COURTS.  AND WHILE
THIS COURT HAS, IN CASES SUCH AS J.I. CASE CO. V. BORAK, 377 U.S. 426
(1964), AUTHORIZED SUITS BY ONE PRIVATE PARTY AGAINST ANOTHER IN ORDER
TO EFFECTUATE A STATUTORY PURPOSE, IT HAS NEVER DONE SO IN THE CONTEXT
OF THE ELEVENTH AMENDMENT AND A STATE DEFENDANT.  SINCE EMPLOYEES,
SUPRA, WHERE CONGRESS HAD EXPRESSLY AUTHORIZED SUITS AGAINST A GENERAL
CLASS OF DEFENDANTS AND THE ONLY THING LEFT TO IMPLICATION WAS WHETHER
THE DESCRIBED CLASS OF DEFENDANTS INCLUDED STATES, WAS DECIDED
ADVERSELY TO THE PUTATIVE PLAINTIFFS ON THE WAIVER QUESTION, SURELY
THIS RESPONDENT MUST ALSO FAIL ON THAT ISSUE.  THE ONLY LANGUAGE IN THE
SOCIAL SECURITY ACT WHICH PURPORTED TO PROVIDE A FEDERAL SANCTION
AGAINST A STATE WHICH DID NOT COMPLY WITH FEDERAL REQUIREMENTS FOR THE
DISTRIBUTION OF FEDERAL MONIES WAS FOUND IN FORMER 42 U.S.C. 1384 (NOW
REPLACED BY SUBSTANTIALLY SIMILAR PROVISIONS IN 42 U.S.C. 804), WHICH
PROVIDED FOR TERMINATION OF FUTURE ALLOCATIONS OF FEDERAL FUNDS WHEN A
PARTICIPATING STATE FAILED TO CONFORM WITH FEDERAL LAW.  /16/  THIS
PROVISION BY ITS TERMS DID NOT AUTHORIZE SUIT AGAINST ANYONE, AND
STANDING ALONE, FELL FAR SHORT OF A WAIVER BY A PARTICIPATING STATE OF
ITS ELEVENTH AMENDMENT IMMUNITY.     OUR BROTHER MARSHALL ARGUES IN
DISSENT, AND THE COURT OF APPEALS HELD, THAT ALTHOUGH THE SOCIAL
SECURITY ACT ITSELF DOES NOT CREATE A PRIVATE CAUSE OF ACTION, THE
CAUSE OF ACTION CREATED BY 42 U.S.C. 1983, COUPLED WITH THE ENACTMENT
OF THE AABD PROGRAM, AND THE ISSUANCE BY HEW OF REGULATIONS WHICH
REQUIRE THE STATES TO MAKE CORRECTIVE PAYMENTS AFTER SUCCESSFUL "FAIR
HEARINGS"  AND PROVIDE FOR FEDERAL MATCHING FUNDS TO SATISFY FEDERAL
COURT ORDERS OF RETROACTIVE PAYMENTS, INDICATE THAT CONGRESS INTENDED A
CAUSE OF ACTION FOR PUBLIC AID RECIPIENTS SUCH AS RESPONDENT.  /17/  IT
IS, OF COURSE, TRUE THAT ROSADO V. WYMAN, 397 U.S. 397 (1970), HELD
THAT SUITS IN FEDERAL COURT UNDER 1983 ARE PROPER TO SECURE COMPLIANCE
WITH THE PROVISIONS OF THE SOCIAL SECURITY ACT ON THE PART OF
PARTICIPATING STATES.  /18/ BUT IT HAS NOT HERETOFORE BEEN SUGGESTED
THAT 1983 WAS INTENDED TO CREATE A WAIVER OF A STATE'S ELEVENTH
AMENDMENT IMMUNITY MERELY BECAUSE AN ACTION COULD BE BROUGHT UNDER THAT
THOUGH A 1983 ACTION MAY BE INSTITUTED BY PUBLIC AID RECIPIENTS SUCH AS
RESPONDENT, A FEDERAL COURT'S REMEDIAL POWER, CONSISTENT WITH THE
ELEVENTH AMENDMENT, IS NECESSARILY LIMITED TO PROSPECTIVE INJUNCTIVE
RELIEF, EX PARTE YOUNG, SUPRA, AND MAY NOT INCLUDE A RETROACTIVE AWARD
WHICH REQUIRES THE PAYMENT OF FUNDS FROM THE STATE TREASURY, FORD MOTOR
CO. V. DEPARTMENT OF TREASURY, SUPRA. 

RESPONDENT URGES THAT SINCE THE VARIOUS ILLINOIS OFFICIALS SUED IN
THE DISTRICT COURT FAILED TO RAISE THE ELEVENTH AMENDMENT DEFENSE
BARRED /19/  FROM RAISING THE ELEVENTH AMENDMENT DEFENSE IN THE COURT
OF APPEALS OR IN THIS COURT.  THE COURT OF APPEALS APPARENTLY FELT THE
DEFENSE WAS PROPERLY PRESENTED, AND DEALT WITH IT ON THE MERITS.  WE
APPROVE OF THIS RESOLUTION, SINCE IT HAS BEEN WELL SETTLED SINCE THE
DECISION IN FORD MOTOR CO. V. DEPARTMENT OF TREASURY, SUPRA, THAT THE
ELEVENTH AMENDMENT DEFENSE SUFFICIENTLY PARTAKES OF THE NATURE OF A
JURISDICTIONAL BAR SO THAT IT NEED 

"(THE ATTORNEY GENERAL OF INDIANA) APPEARED IN THE FEDERAL DISTRICT
COURT AND THE CIRCUIT COURT OF APPEALS AND DEFENDED THE SUIT ON THE
MERITS.  THE OBJECTION TO PETITIONER'S SUIT AS A VIOLATION OF THE
ELEVENTH AMENDMENT WAS FIRST MADE AND ARGUED BY INDIANA IN THIS COURT. 
THIS WAS IN TIME, HOWEVER.  THE ELEVENTH AMENDMENT DECLARES A POLICY
AND SETS FORTH AN EXPLICIT LIMITATION ON FEDERAL JUDICIAL POWER OF SUCH
COMPELLING FORCE THAT THIS COURT WILL CONSIDER THE ISSUE ARISING UNDER
THIS AMENDMENT IN THIS CASE EVEN THOUGH URGED FOR THE FIRST TIME IN
THIS COURT."  323 U.S., AT 466 - 467. 

FOR THE FOREGOING REASONS WE DECIDE THAT THE COURT OF APPEALS WAS
WRONG IN HOLDING THAT THE ELEVENTH AMENDMENT DID NOT CONSTITUTE A BAR
TO THAT PORTION OF THE DISTRICT COURT DECREE WHICH ORDERED RETROACTIVE
PAYMENT OF BENEFITS FOUND TO HAVE BEEN WRONGFULLY WITHHELD.  THE
JUDGMENT OF THE COURT OF APPEALS IS THEREFORE REVERSED AND THE CAUSE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/ IN HIS COMPLAINT IN THE DISTRICT COURT, RESPONDENT CLAIMED THAT
THE ILLINOIS DEPARTMENT OF PUBLIC AID WAS NOT COMPLYING WITH FEDERAL
REGULATIONS IN ITS PROCESSING O F PUBLIC AID APPLICATIONS, AND ALSO
THAT ITS REFUSAL TO PROCESS AND ALLOW RESPONDENT'S CLAIM FOR A PERIOD
OF FOUR MONTHS, WHILE PROCESSING AND ALLOWING THE CLAIMS OF THOSE
SIMILARLY SITUATED, VIOLATED THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  RESPONDENT ASSERTED THAT THE DISTRICT COURT
COULD EXERCISE JURISDICTION OVER THE CAUSE BY VIRTUE OF 28 U.S.C. 1331
AND 1343(3) AND (4).  THOUGH NOT BRIEFED BY THE PARTIES BEFORE THIS
COURT, WE THINK THAT UNDER OUR DECISION IN HAGANS V. LAVINE, ANTE, P.
528, THE EQUAL PROTECTION CLAIM CANNOT BE SAID TO BE "WHOLLY
INSUBSTANTIAL," AND THAT THEREFORE THE DISTRICT COURT WAS CORRECT IN
EXERCISING PENDENT JURISDICTION OVER THE STATUTORY CLAIM. 

/2/  EFFECTIVE JANUARY 1, 1974, THIS AABD PROGRAM WAS REPLACED BY A
SIMILAR PROGRAM.  SEE 42 U.S.C. 801 - 805 (1970 ED., SUPP. II). 

/3/  TITLE 45 CFR 206.10(A)(3) (1973) PROVIDES IN PERTINENT PART:
"(A) STATE PLAN REQUIREMENTS.  A STATE PLAN . . . SHALL PROVIDE THAT:

        .         .         .         . . 

"(3) A DECISION SHALL BE MADE PROMPTLY ON APPLICATIONS, PURSUANT TO
REASONABLE STATE-ESTABLISHED TIME STANDARDS NOT IN EXCESS OF: 

"(I) 45 DAYS (FOR AID TO AGED AND BLIND) . . .; AND 

"(II) 60 DAYS . . . (FOR AID TO DISABLED).  "UNDER THIS REQUIREMENT,
THE APPLICANT IS INFORMED OF THE AGENCY'S TIME STANDARD IN ACTING ON
APPLICATIONS, WHICH COVERS THE TIME FROM DATE OF APPLICATION UNDER THE
STATE PLAN TO THE DATE THAT THE ASSISTANCE CHECK, OR NOTIFICATION OF
DENIAL OF ASSISTANCE OR CHANGE OF AWARD, OR THE ELIGIBILITY DECISION
WITH RESPECTTO MEDICAL ASSISTANCE, IS MAILED TO THE APPLICANT OR
RECIPIENT.  . . ."  WHEN ORIGINALLY ISSUED IN 1968 THE REGULATIONS
PROVIDED THAT THE APPLICATIONS FOR AID TO THE AGED AND BLIND BE
PROCESSED WITHIN 30 DAYS AND THAT AID TO THE DISABLED BE PROCESSED
WITHIN 45 DAYS OF RECEIPT.  THEY ALSO PROVIDED THAT THE PERSON
DETERMINED TO BE ELIGIBLE MUST RECEIVE HIS ASSISTANCE CHECK WITHIN THE
APPLICABLE TIME PERIOD.  THE AMENDMENT TO 60 DAYS FOR AID TO THE
DISABLED OCCURRED IN 1971, AS DID THE CHANGE TO REQUIRE MAILING INSTEAD
OF RECEIPT OF THE ASSISTANCE CHECK WITHIN THE APPLICABLE TIME PERIOD;
EFFECTIVE OCT. 15, 1973, THE TIME FOR PROCESSING AGED AND BLIND
APPLICATIONS BECAME 45 DAYS. 

IN ADDITION, AT THE TIME OF INSTITUTION OF THE SUIT, 45 CFR 206.10
(A)(6) (1972) PROVIDED IN PERTINENT PART: 

"(6) ENTITLEMENT WILL BEGIN AS SPECIFIED IN THE STATE PLAN, WHICH
(I) FOR FINANCIAL ASSISTANCE MUST BE NO LATER THAN THE DATE OF
AUTHORIZATION OF PAYMENT . . . ." 

/4/  THE ILLINOIS REGULATIONS, FOUND IN THE ILLINOIS CATEGORICAL
ASSISTANCE MANUAL OF THE ILLINOIS DEPARTMENT OF PUBLIC AID, PROVIDE IN
PERTINENT PART:  "4004.1 "EXCEPT FOR (DISABILITY) CASES WHICH HAVE A
TIME STANDARD OF 45 DAYS, THE TIME STANDARD FOR DISPOSITION OF
APPLICATIONS IS 30 DAYS FROM THE DATE OF APPLICATION TO THE DATE THE
APPLICANTS ARE DETERMINED ELIGIBLE AND THE EFFECTIVE DATE OF THEIR
FIRST ASSISTANCE OR ARE DETERMINED INELIGIBLE AND RECEIVE A NOTICE OF
DENIAL OF ASSISTANCE.  . . .,

        .         .         .         .         . "8255.  INITIAL
AWARDS "INITIAL AWARDS MAY BE NEW GRANTS, REINSTATEMENTS, OR CERTAIN
TYPES OF RESUMPTIONS.  THEY CAN BE EFFECTIVE FOR THE MONTH IN WHICH
FORM FO-550 IS SIGNED BUT FOR NO PRIOR PERIOD EXCEPT (UNDER CONDITIONS
NOT RELEVANT TO THIS CASE).  "8255.1 NEW GRANTS "A NEW GRANT IS THE
FIRST GRANT AUTHORIZED AFTER AN APPLICATION HAS BEEN ACCEPTED IN A CASE
WHICH HAS NOT PREVIOUSLY RECEIVED ASSISTANCE UNDER THE SAME ASSISTANCE
PROGRAM.  IT MAY BE AUTHORIZED FOR THE MONTH IN WHICH FORM FO-550 IS
SIGNED BUT NOT FOR ANY PRIOR PERIOD UNLESS IT MEETS (EXCEPTIONS NOT
RELEVANT TO THIS CASE)." 

/5/  PARAGRAPH 5 OF THE DISTRICT COURT'S JUDGMENT PROVIDED: 

"THAT THE DEFENDANT EDWARD T. WEAVER, DIRECTOR, ILLINOIS DEPARTMENT
OF PUBLIC AID, HIS AGENTS, INCLUDING ALL OF THE COUNTY DEPARTMENTS OF
PUBLIC AID IN THE STATE OF ILLINOIS, AND EMPLOYEES, AND ALL PERSONS IN
ACTIVE CONCERT AND PARTICIPATION WITH THEM, ARE HEREBY ENJOINED TO
RELEASE AND REMIT AABD BENEFITS WRONGFULLY WITHHELD TO ALL APPLICANTS
FOR AABD IN THE STATE OF ILLINOIS WHO APPLIED BETWEEN JULY 1, 1968 AND
APRIL 16, 1972 (SIC) (SHOULD READ "1971"), AND WERE DETERMINED
ELIGIBLE, AS FOLLOWS: 

"(A) FOR THOSE AGED AND BLIND APPLICANTS WHOSE FIRST FULL AABD CHECK
WAS NOT MAILED WITHIN THIRTY DAYS FROM THE DATE OF APPLICATION, AABD
ASSISTANCE FOR THE PERIOD BEGINNING WITH THE THIRTIETH DAY FROM THE
DATE OF APPLICATION TO THE DATE THE APPLICANT'S ENTITLEMENT TO AABD
BECAME EFFECTIVE; 

"(B)(I) FOR THOSE DISABLED APPLICANTS WHO APPLIED BETWEEN JULY 1,
1968 AND DECEMBER 31, 1970, WHOSE FIRST FULL AABD CHECK WAS NOT MAILED
WITHIN FORTY-FIVE DAYS FROM THE DATE OF APPLICATION, AABD ASSISTANCE
FOR THE PERIOD BEGINNING WITH THE FORTY-FIFTH DAY FROM THE DATE OF
APPLICATION TO THE DATE THE APPLICANT'S ENTITLEMENT BECAME EFFECTIVE; 

"(II) FOR THOSE DISABLED APPLICANTS WHO APPLIED BETWEEN JANUARY 1,
1971 AND APRIL 16, 1971, WHOSE FIRST FULL AABD CHECK WAS NOT MAILED
WITHIN SIXTY DAYS FROM THE DATE OF APPLICATION, AABD ASSISTANCE FOR THE
PERIOD BEGINNING WITH THE SIXTIETH DAY FROM THE DATE OF APPLICATION TO
THE DATE THE APPLICANT'S ENTITLEMENT BECAME EFFECTIVE; 

"THESE AABD BENEFITS SHALL BE MAILED TO THOSE PERSONS CURRENTLY
RECIEVING AABD WITHIN EIGHT MONTHS WITH AN EXPLANATORY LETTER, SAID
LETTER HAVING BEEN FIRST APPROVED BY PLAINTIFFS' ATTORNEY.  ANY AABD
BENEFITS RECEIVED PURSUANT TO THIS PARAGRAPH SHALL NOT BE DEEMED INCOME
OR RESOURCES UNDER ARTICLE III OF THE ILLINOIS PUBLIC AID CODE. 

"FOR THOSE PERSONS NOT PRESENTLY RECEIVING AABD: 

"(A) A CERTIFIED LETTER (RETURN RECEIPT REQUESTED), SAID LETTER
HAVING BEEN FIRST APPROVED BY PLAINTIFFS' ATTORNEY, SHALL BE SENT TO
THE LAST KNOWN ADDRESS OF THE PERSON, INFORMING HIM IN CONCISE AND
EASILY UNDERSTANDABLE TERMS THAT HE IS ENTITLED TO A SPECIFIED AMOUNT
OF AABD BENEFITS WRONGFULLY WITHHELD, AND THAT HE MAY CLAIM SUCH AMOUNT
BY CONTACTING THE COUNTY DEPARTMENT OF PUBLIC AID AT A SPECIFIED
ADDRESS, WITHIN 45 DAYS FROM THE RECEIPT OF SAID LETTER. 

"(B) IF THE COUNTY DEPARTMENT OF PUBLIC AID DOES NOT RECEIVE A CLAIM
FOR THE AABD BENEFITS WITHIN 45 DAYS FROM THE DATE OF ACTUAL NOTICE TO
THE PERSON, THE RIGHT TO SAID AABD BENEFITS SHALL BE FORFEITED AND THE
FILE SHALL BE CLOSED.  PERSONS WHO DO NOT RECEIVE ACTUAL NOTICE DO NOT
FORFEIT THEIR RIGHTS TO AABD BENEFITS WRONGFULLY WITHHELD UNDER THIS
PROVISION." 

PARAGRAPH 6 OF THE DISTRICT COURT'S JUDGMENT PROVIDED: 

"WITHIN 15 DAYS FROM THE DATE OF THIS DECREE, DEFENDANT EDWARD T.
WEAVER, DIRECTOR, ILLINOIS DEPARTMENT OF PUBLIC AID, SHALL SUBMIT TO
THE COURT AND THE PLAINTIFFS' ATTORNEY A DETAILED STATEMENT AS TO THE
METHOD FOR EFFECTUATING THE RELIEF REQUIRED BY PARAGRAPH 5, SUPRA, OF
THIS DECREE.  ANY DISPUTES BETWEEN THE PARTIES AS TO WHETHER THE
PROCEDURES AND STEPS OUTLINED BY THE DEFENDANT WEAVER WILL FULFILL THE
REQUIREMENTS OF THIS DECREE WILL BE RESOLVED BY THE COURT." 

ON JULY 19, 1973, THE AUTHOR OF THIS OPINION STAYED UNTIL FURTHER
ORDER OF THIS COURT THESE TWO PARAGRAPHS OF THE DISTRICT COURT'S
JUDGMENT.  414 U.S. 1301. 

/6/  RESPONDENT APPEALED FROM THE DISTRICT COURT'S JUDGMENT INSOFAR
AS IT HELD HIM NOT ENTITLED TO RECEIVE BENEFITS FROM THE DATE OF HIS
APPLICATIONS (AS OPPOSED TO THE DATE OF AUTHORIZATION OF BENEFITS AS
PROVIDED BY THE FEDERAL REGULATIONS) AND INSOFAR AS IT FAILED TO AWARD
PUNITIVE DAMAGES.  THE COURT OF APPEALS UPHELD THE DISTRICT COURT'S
DECISION AGAINST RESPONDENT ON THOSE POINTS AND THEY ARE NOT AT ISSUE
HERE.  472 F.2D 985, 997 - 999. 

/7/  CITING CHEVRON OIL CO. V. HUSON, 404 U.S. 97 (1971), PETITIONER
ALSO CONTENDS IN THIS COURT THAT THE COURT OF APPEALS ERRED IN REFUSING
TO GIVE THE DISTRICT COURT'S JUDGMENT PROSPECTIVE EFFECT ONLY.  BRIEF
FOR PETITIONER 37, INCORPORATING ARGUMENTS MADE IN PETITION FOR
CERTIORARI 18 - 22.  THE COURT OF APPEALS CONCLUDED THAT THIS GROUND
WAS "NOT PRESENTED TO THE DISTRICT JUDGE BEFORE THE ENTRY OF JUDGMENT,
SO THAT IT COMES TOO LATE."472 F.2D, AT 995.  THE COURT OF APPEALS WENT
ON, HOWEVER, TO CONCLUDE THAT "(EVEN IF THE GROUND HAD BEEN TIMELY
PRESENTED, DEFENDANTS' CONTENTION WOULD BE MERITLESS."  IBID.  NOTING
THAT ONE OF THREE TESTS ESTABLISHED BY OUR DECISION IN HUSON FOR
DETERMINING THE RETORACTIVITY OF COURT DECISIONS WAS THAT "THE DECISION
TO BE APPLIED NONRETROACTIVELY MUST ESTABLISH A NEW PRINCIPLE OF LAW,
EITHER BY OVERRULING CLEAR PAST PRECEDENT ON WHICH LITIGANTS MAY HAVE
RELIED . . .OR (HAVE DECIDED) AN ISSUE OF FIRST IMPRESSION WHOSE
RESOLUTION WAS NOT CLEARLY FORESHADOWED . . . ," CHEVRON OIL CO. V.
HUSON, SUPRA, AT 106, THE COURT OF APPEALS FOUND THAT THE PETITIONER
HAD NOT SATISFIED THIS TEST, SINCE THE "FEDERAL TIME REQUIREMENTS FOR
PROCESSING APPLICATIONS AND PAYING ELIGIBLE AABD APPLICANTS WERE MADE
EFFECTIVE JULY 1, 1968, AND DEFENDANTS WERE WELL AWARE OF THESE
MANDATORY MAXIMUM PERMISSIBLE TIME STANDARDS."  472 F.2D, AT 996. 

IN LIGHT OF OUR DISPOSITION OF THIS CASE ON THE ELEVENTH AMENDMENT
ISSUE WE SEE NO REASON TO ADDRESS THIS CONTENTION. 

/8/  TITLE 42 U.S.C. 1382(A)(8) (1970 ED., SUPP. II) PROVIDED IN
PERTINENT PART: 

"(A) CONTENTS. 

"A STATE PLAN FOR AID TO THE AGED, BLIND, OR DISABLED, OR FOR AID TO
THE AGED, BLIND, OR DISABLED AND MEDICAL ASSISTANCE FOR THE AGED, MUST
-,

        .         .         .         .         . 

"(8) PROVIDE THAT ALL INDIVIDUALS WISHING TO MAKE APPLICATION FOR
AID OR ASSISTANCE UNDER THE PLAN SHALL HAVE OPPORTUNITY TO DO SO, AND
THAT SUCH AID OR ASSISTANCE SHALL BE FURNISHED WITH REASONABLE
PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS." 

HEW, PURSUANT TO AUTHORITY GRANTED TO IT BY 42 U.S.C. 1302, HAS
PROMULGATED REGULATIONS, SEE N. 3, SUPRA, WHICH REQUIRE THAT DECISIONS
BE MADE PROMPTLY ON APPLICATIONS WITHIN 45 DAYS FOR THE AGED AND BLIND
AND WITHIN 60 DAYS FOR THE DISABLED, AND THAT INITIATION OF PAYMENTS TO
THE ELIGIBLE BE MADE WITHIN THE SAME PERIODS. PETITIONER RENEWS IN THIS
COURT THE CONTENTION MADE IN THE COURT OF APPEALS THAT THESE TIME
LIMITATIONS IN THE REGULATIONS ARE INCONSISTENT WITH THE STATUTE AND
THEREFORE AN UNLAWFUL ABUSE OF THE RULE-MAKING AUTHORITY.  BRIEF FOR
PETITIONER 37, INCORPORATING ARGUMENTS MADE IN PETITION FOR CERTIORARI
22 - 28.SPECIFICALLY, PETITIONER ARGUES THAT THE "ESTABLISHMENT OF
ARBITRARY (FORTY-FIVE) AND SIXTY DAY MAXIMUMS IN THE HEW REGULATIONS
FOR DETERMINATION OF ELIGIBILITY AND INITIATION OF PAYMENTS WITHOUT
TAKING INTO CONSIDERATION THE EFFICIENT ADMINISTRATION OF THE ACT BY
THE STATE AGENCIES IS INCONSISTENT WITH THE 'REASONABLE PROMPTNESS'
REQUIREMENT AND MUST THEREFORE BE DECLARED UNLAWFUL . . . ."  PET. FOR
CERT. 23.  THE COURT OF APPEALS REJECTED THIS CONTENTION, HOLDING THAT
"THESE TIME REQUIREMENTS, BINDING ON STATE WELFARE OFFICIALS, ARE AN
APPROPRIATE INTERPRETATION OF THE CONGRESSIONAL MANDATE OF "REASONABLE
PROMPTNESS.'"  472 F.2D, AT 996.  WE AGREE WITH THE COURT OF APPEALS. 

/9/  WHILE THE DEBATES OF THE CONSTITUTIONAL CONVENTION THEMSELVES
DO NOT DISCLOSE A DISCUSSION OF THE QUESTION, THE PREVAILING VIEW AT
THE TIME OF THE RATIFICATION OF THE CONSTITUTION WAS STATED BY VARIOUS
OF THE FRAMERS IN THE WRITINGS AND DEBATES OF THE PERIOD.  EXAMPLES OF
THESE VIEWS HAVE BEEN ASSEMBLED BY MR. JUSTICE HUGHES:  ".  . .
MADISON, IN THE VIRGINIA CONVENTION, ANSWERING OBJECTIONS TO THE
RATIFICATION OF THE CONSTITUTION, CLEARLY STATED VIEW AS TO THE PURPOSE
AND EFFECT OF THE PROVISION CONFERRING JURISDICTION OVER CONTROVERSIES
BETWEEN STATES OF THE UNION AND FOREIGN STATES.  THAT PURPOSE WAS
SUITABLY TO PROVIDE FOR ADJUDICATION IN SUCH CASES IF CONSENT SHOULD BE
GIVEN BUT NOT OTHERWISE.  MADISON SAID; 'THE NEXT CASE PROVIDES FOR
DISPUTES BETWEEN A FOREIGN STATE AND ONE OF OUR STATES, SHOULD SUCH A
CASE EVER ARISE; AND BETWEEN A CITIZEN AND A FOREIGN CITIZEN OR
SUBJEC.  I DO NOT CONCEIVE THAT ANY CONTROVERSY CAN EVER BE DECIDED, IN
THESE COURTS, BETWEEN AN AMERICAN STATE AND A FOREIGN STATE, WITHOUT
THE CONSENT OF THE PARTIES.  IF THEY CONSENT, PROVISION IS HERE MADE.' 
3 ELLIOT'S DEBATES, 533. 

"MARSHALL, IN THE SAME CONVENTION, EXPRESSED A SIMILAR VIEW. 
REPLYING TO AN OBJECTION AS TO THE ADMISSIBILITY OF A SUIT BY A FOREIGN
STATE, MARSHALL SAID: 'HE OBJECTS, IN THE NEXT PLACE, TO ITS
JURISDICTION IN CONTROVERSIES BETWEEN A STATE AND A FOREIGN STATE. 
SUPPOSE, SAYS HE, IN SUCH A SUIT, A FOREIGN STATE IS CAST; WILL SHE BE
BOUND BY THE DECISION?  IF A FOREIGN STATE BROUGHT A SUIT AGAINST THE
COMMONWEALTH OF VIRGINIA, WOULD SHE NOT BE BARRED FROM THE CLAIM IF THE
FEDERAL JUDICIARY THOUGHT IT UNJUST?  THE PREVIOUS CONSENT OF THE
PARTIES IS NECESSARY; AND, AS THE FEDERAL JUDICIARY WILL DECIDE, EACH
PARTY WILL ACQUIESCE.'  3 ELLIOT'S DEBATES, 557. 

"HAMILTON, IN THE FEDERALIST, NO. 81, MADE THE FOLLOWING EMPHATIC
STATEMENT OF THE GENERAL PRINCIPLE OF IMMUNITY: 'IT IS INHERENT IN THE
NATURE OF SOVEREIGNTY NOT TO BE AMENDABLE TO THE SUIT OF AN INDIVIDUAL
WITHOUT ITS CONSENT.  THIS IS THE GENERAL SENSE AND THE GENERAL
PRACTICE OF MANKIND; AND THE EXEMPTION, AS ONE OF THE ATTRIBUTES OF
SOVEREIGNTY, IS NOW ENJOYED BY THE GOVERNMENT OF EVERY STATE IN THE
UNION.  UNLESS, THEREFORE, THERE IS A SURRENDER OF THIS IMMUNITY IN THE
PLAN OF THE CONVENTION, IT WILL REMAIN WITH THE STATES, AND THE DANGER
INTIMATED MUST BE MERELY IDEAL.  THE CIRCUMSTANCES WHICH ARE NECESSARY
TO PRODUCE AN ALIENATION OF STATE SOVEREIGNTY WERE DISCUSSED IN
CONSIDERING THE ARTICLE OF TAXATION AND NEED NOT BE REPEATED HERE.  A
RECURRENCE TO THE PRINCIPLES THERE ESTABLISHED WILL SATISFY US THAT
THERE IS NO COLOR TO PRETEND THAT THE STATE GOVERNMENTS WOULD BY THE
ADOPTION OF THAT PLAN BE DIVESTED OF THE PRIVILEGE OF PAYING THEIR OWN
DEBTS IN THEIR OWN WAY, FREE FROM EVERY CONSTRAINT BUT THAT WHICH FLOWS
FROM THE OBLIGATIONS OF GOOD FAITH.  THE CONTRACTS BETWEEN A NATION AND
INDIVIDUALS ARE ONLY BINDING ON THE CONSCIENCE OF THE SOVEREIGN, AND
HAVE NO PRETENSIONS TO A COMPULSIVE FORCE.  THEY CONFER NO RIGHT OF
ACTION INDEPENDENT OF THE SOVEREIGN WILL.  TO WWHAT PURPOSE WOULD IT BE
TO AUTHORIZE SUITS AGAINST STATES FOR THE DEBTS THEY OWE?  HOW COULD
RECOVERIES BE ENFORCED?  IT IS EVIDENT IT COULD NOT BE DONE WITHOUT
WAGING WAR AGAINST THE CONTRACTING STATE; AND TO ASCRIBE TO THE FEDERAL
COURTS BY MERE IMPLICATION, AND IN DESTRUCTION OF A PREXISTING RIGHT OF
THE STATE GOVERNMENTS, A POWER WHICH WOULD INVOLVE SUCH A CONSEQUENCE
WOULD BE ALTOGETHER FORCED AND UNWARRANTABLE.'"  MONACO V. MISSISSIPPI,
292 U.S. 313, 323 - 325 (1934) (FOOTNOTES OMITTED). 

/10/  OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT,
SITTING BY DESIGNATION ON THE COURT OF APPEALS FOR THE SECOND CIRCUIT. 

/11/  IT MAY BE TRUE, AS STATED BY OUR BROTHER DOUGLAS IN DISSENT,
THAT "(MOST WELFARE DECISIONS BY FEDERAL COURTS HAVE A FINANCIAL IMPACT
ON THE STATES."  POST, AT 680 - 681.  BUT WE CANNOT AGREE THAT SUCH A
FINANCIAL IMPACT IS THE SAME WHERE A FEDERAL COURT APPLIES EX PARTE
YOUNG TO GRANT PROSPECTIVE DECLARATORY AND INJUNCTIVE RELIEF, AS
OPPOSED TO AN ORDER OF RETROACTIVE PAYMENTS AS WAS MADE IN THE INSTANT
CASE.  IT IS NOT NECESSARILY TRUE THAT "WHETHER THE DECREE IS
PROSPECTIVE ONLY OR REQUIRES PAYMENTS FOR THE WEEKS OR MONTHS
WRONGFULLY SKIPPED OVER BY THE STATE OFFICIALS, THE NATURE OF THE
IMPACT ON THE TREASURY IS PRECISELY THE SAME."  POST, AT 682.  THIS
ARGUMENT NEGLECTS THE FACT THAT WHERE THE STATE HAS A DEFINABLE
ALLOCATION TO BE USED IN THE PAYMENT OF PUBLIC AID BENEFITS, AND
PURSUES A CERTAIN COURSE OF ACTION SUCH AS THE PROCESSING OF
APPLICATIONS WITHIN CERTAIN TIME PERIODS AS DID ILLINOIS HERE, THE
SUBSEQUENT ORDERING BY A FEDERAL COURT OF RETROACTIVE PAYMENTS TO
CORRECT DELAYS IN SUCH PROCESSING WILL INVARIABLY MEAN THERE IS LESS
MONEY AVAILABLE FOR PAYMENTS FOR THE CONTINUING OBLIGATIONS OF THE
PUBLIC AID SYSTEM. 

AS STATED BY JUDGE MCGOWAN IN ROTHSTEIN V. WYMAN, 467 F.2D 226, 235
(CA2 1972): 

"THE SECOND FEDERAL POLICY WHICH MIGHT ARGUABLY BE FURTHERED BY
RETROACTIVE PAYMENTS IS THE FUNDAMENTAL GOAL OF CONGRESSIONAL WELFARE
LEGISLATION -- THE SATISFACTION OF THE ASCERTAINED NEEDS OF
IMPOVERISHED PERSONS.  FEDERAL STANDARDS ARE DESIGNED TO ENSURE THAT
THOSE NEEDS ARE EQUITABLY MET; AND THERE MAY PERHAPS BE CASES IN WHICH
THE PROMPT PAYMENT OF FUNDS WRONGFULLY WITHHELD WILL SERVE THAT END. 
AS TIME GOES BY, HOWEVER, RETROACTIVE PAYMENTS BECOME COMPENSATORY
RATHER THAN REMEDIAL; THE COINCIDENCE BETWEEN PREVIOUSLY ASCERTAINED
AND EXISTING NEEDS BECOMES LESS CLEAR." 

/12/  THE COURT OF APPEALS CONSIDERED THE COURT'S DECISION IN
GRIFFIN V. SCHOOL BOARD, 377 U.S. 218 (1964), TO BE OF LIKE IMPORT. 
BUT AS MAY BE SEEN FROM GRIFFIN'S CITATION OF LINCOLN COUNTY V. LUNING,
133 U.S. 529 (1890), A COUNTY DOES NOT OCCUPY THE SAME POSITION AS A
STATE FOR PURPOSES OF THE ELEVENTH AMENDMENT.  SEE ALSO MOOR V. COUNTY
OF ALAMEDA, 411 U.S. 693 (1973).  THE FACT THAT THE COUNTY POLICIES
EXECUTED BY THE COUNTY OFFICIALS IN GRIFFIN WERE SUBJECT TO THE
COMMANDS OF THE FOURTEENTH AMENDMENT, BUT THE COUNTY WAS NOT ABLE TO
INVOKE THE PROTECTION OF THE ELEVENTH AMENDMENT, IS NO MORE THAN A
RECOGNITION OF THE LONG-ESTABLISHED RULE THAT WHILE COUNTY ACTION IS
GENERALLY STATE ACTION FOR PURPOSES OF THE FOURTEENTH AMENDMENT, A
COUNTY DEFENDANT IS NOT NECESSARILY A STATE DEFENDANT FOR PURPOSES OF
THE ELEVENTH AMENDMENT. 

/13/  BRIEF FOR RESPONDENT 15 - 18.  DECISIONS OF THIS COURT IN
WHICH WE SUMMARILY AFFIRMED A DECISION OF A LOWER FEDERAL COURT WHICH
ORDERED THE PAYMENT OF RETROACTIVE AWARDS AND IN WHICH THE
JURISDICTIONAL STATEMENT FILED IN THIS COURT RAISED THE ELEVENTH
AMENDMENT DEFENSE INCLUDE: STATE DEPT. OF HEALTH AND REHABILITATIVE
SERVICE V. ZARATE, 407 U.S. 918 (1972), AFF'G 347 F. SUPP. 1004 (SD
FLA. 1971); STERRETT V. MOTHERS' AND CHILDREN'S RIGHTS ORGANIZATION,
409 U.S. 809 (1972), AFF'G UNREPORTED ORDER AND JUDGMENT OF DISTRICT
COURT (ND IND. 1972) ON REMAND FROM CARPENTER V. STERRETT, 405 U.S. 971
(1972); GADDIS V. WYMAN, 304 F. SUPP. 717 (SDNY 1969) (ORDER AT CCH
POVERTY LAW REP. 10,506 (1968 - 1971 TRANSFER BINDER)), AFF'D PER
CURIAM SUB NOM.  WYMAN V. BOWENS, 397 U.S. 49 (1970). 

/14/  IN THE WORDS OF MR. JUSTICE BRANDEIS: "STARE DECISIS IS
USUALLY THE WISE POLICY, BECAUSE IN MOST MATTERS IT IS MORE IMPORTANT
THAT THE APPLICABLE RULE OF LAW BE SETTLED THAN IT BE SETTLED RIGHT.  .
. . THIS IS COMMONLY TRUE EVEN WHERE THE ERROR IS A MATTER OF SERIOUS
CONCERN, PROVIDED CORRECTION CAN BE HAD BY LEGISLATION.  BUT IN CASES
INVOLVING THE FEDERAL CONSTITUTION, WHERE CORRECTION THROUGH
LEGISLATIVE ACTION IS PRACTICALLY IMPOSSIBLE, THIS COURT HAS OFTEN
OVERRULED ITS EARLIER DECISIONS.  THE COURT BOWS TO THE LESSONS OF
EXPERIENCE AND THE FORCE OF BETTER REASONING, RECOGNIZING THAT THE
PROCESS OF TRIAL AND ERROR, SO FRUITFUL IN THE PHYSICAL SCIENCES, IS
APPROPRIATE ALSO IN THE JUDICIAL FUNCTION."  BURNET V. CORONADO OIL &
GAS CO., 285 U.S. 393, 406-408  (1932) (DISSENTING OPINION) (FOOTNOTES
OMITTED). 

/15/  RESPONDENT URGES THAT THE TRADITIONALLY BROAD POWER OF A
FEDERAL COURT SITTING AS A COURT OF EQUITY TO FASHION APPROPRIATE
REMEDIES AS ARE NECESSARY TO EFFECT CONGRESSIONAL PURPOSES REQUIRES
THAT THE DISTRICT COURT'S AWARD OF RETROACTIVE BENEFITS BE UPHELD. 
RESPONDENT PLACES PRINCIPAL RELIANCE ON OUR PRIOR DECISIONS IN PORTER
V. WARNER HOLDING CO., 328 U.S. 395 (1946), AND MITCHELL V. DEMARIO
JEWELRY, 361 U.S. 288 (1960).  BOTH CASES DEALT WITH THE POWER OF A
FEDERAL COURT TO GRANT EQUITABLE RELIEF FOR VIOLATIONS OF FEDERAL LAW;
THE DECISION IN MITCHELL INDICATED THAT A FEDERAL COURT COULD PROVIDE
EQUITABLE RELIEF "COMPLETE.  . . IN LIGHT OF THE STATUTORY PURPOSES." 
ID., AT 292.  SINCE NEITHER OF THESE CASES INVOLVED A SUIT AGAINST A
STATE OR A STATE OFFICIAL, IT DID NOT PURPORT TO DECIDE THE
AVAILABILITY OF EQUITABLE RELIEF CONSISTENT WITH THE ELEVENTH
AMENDMENT. 

/16/  HEW SOUGHT PASSAGE OF A BILL IN THE 91ST CONGRESS, H.R.
16311, 407(A), WHICH WOULD HAVE GIVEN IT AUTHORITY TO REQUIRE
RETROACTIVE PAYMENTS TO ELIGIBLE PERSONS DENIED SUCH BENEFITS.  THE
BILL FAILED TO PASS THE HOUSE OF REPRESENTATIVES.  SEE STAFF OF SENATE
COMMITTEE ON FINANCE 91ST CONG., 2D SESS., H.R. 16311, THE FAMILY
ASSISTANCE ACT OF 1970, AT C169 - 170 (COMM. PRINT NOV. 5, 1970). 

/17/  TITLE 45 CFR 205.10 (B)(2) AND (3) PROVIDE:  "(B) FEDERAL
FINANCIAL PARTICIPATION.  FEDERAL FINANCIAL PARTICIPATION IS AVAILABLE
FOR THE FOLLOWING ITEMS:

        .         . .         .         . "(2) PAYMENTS OF
ASSISTANCE MADE TO CARRY OUT HEARING DECISIONS, OR TO TAKE CORRECTIVE
ACTION AFTER AN APPEAL BUT PRIOR TO HEARING, OR TO EXTEND THE BENEFIT
OF A HEARING DECISION OR COURT ORDER TO OTHERS IN THE SAME SITUATION AS
THOSE DIRECTLY AFFECTED BY THE DECISION OR ORDER.  SUCH PAYMENTS MAY BE
RETROACTIVE IN ACCORDANCE WITH APPLICABLE FEDERAL POLICIES ON
CORRECTIVE PAYMENTS.  "3 PAYMENTS OF ASSISTANCE WITHIN THE SCOPE OF
FEDERALLY AIDED PUBLIC ASSISTANCE PROGRAMS MADE IN ACCORDANCE WITH A
COURT ORDER." 

THE COURT OF APPEALS FELT THAT 1983, THE ENACTMENT OF THE AABD
PROGRAM, AND THE ISSUANCE BY HEW OF THE ABOVE REGULATION, INDICATED
THAT CONGRESS INTENDED TO INCLUDE WITHIN THE SOCIAL SECURITY ACT THE
REMEDY OF "EFFECTIVE JUDICIAL REVIEW" AND "THE REMEDY OF RESTORATION OF
BENEFITS WITHHELD IN VIOLATION OF FEDERAL LAW."  472 F.2D, AT 994 - 995
AND N. 15.  BUT THE ADOPTION OF REGULATIONS BY HEW TO PERMIT THE USE OF
FEDERAL FUNDS IN THE SATISFACTION OF JUDICIAL AWARDS IS NOT
DETERMINATIVE OF THE CONSTUTUTIONAL ISSUES HERE PRESENTED. 

/18/  MR. JUSTICE MARSHALL, AND BOTH THE COURT OF APPEALS AND THE
RESPONDENT HEREIN, REFER TO LANGUAGE IN ROSADO V. WYMAN, 397 U.S., 397,
420 (1970), TO THE EFFECT THAT CONGRESS IN LEGISLATING THE SOCIAL
SECURITY ACT HAS NOT "CLOSED THE AVENUE OF EFFECTIVE JUDICIAL REVIEW TO
THOSE INDIVIDUALS MOST DIRECTLY AFFECTED BY THE ADMINISTRATION OF ITS
PROGRAM."  THE COURT IN ROSADO WAS CONCERNED WITH THE COMPATIBILITY OF
A PROVISION OF NEW YORK LAW WHICH DECREASED BENEFITS TO SOME ELIGIBLE
PUBLIC AID RECIPIENTS AND AMENDMENTS TO THE FEDERAL ACT WHICH REQUIRED
COST-OF-LIVING INCREASES.  THE CASE DID NOT PURPORT TO DECIDE THE
ELEVENTH AMENDMENT ISSUE WE RESOLVE TODAY.  IN FINDING THE NEW YORK LAW
INCONSISTENT WITH THE FEDERAL LAW, MR. JUSTICE HARLAN STATED: 

"NEW YORK IS, OF COURSE, IN NO WAY PROHIBITED FROM USING ONLY STATE
FUNDS ACCORDING TO WHATEVER PLAN IT CHOOSES, PROVIDING IT VIOLATES NO
PROVISION OF THE CONSTITUTION.  IT FOLLOWS, HOWEVER, FROM OUR
CONCLUSION THAT NEW YORK'S PROGRAM IS IMCOMPATIBLE WITH 402(A)(23),
THAT PETITIONERS ARE ENTITLED TO DECLARATORY RELIEF AND AN APPROPRIATE
INJUNCTION BY THE DISTRICT COURT AGAINST THE PAYMENT OF FEDERAL MONIES
ACCORDING TO THE NEW SCHEDULES, SHOULD THE STATE NOT DEVELOP A
CONFORMING PLAN WITHIN A REASONABLE PERIOD OF TIME. 

"WE HAVE CONSIDERED AND REJECTED THE ARGUMENT THAT A FEDERAL COURT
IS WITHOUT POWER TO REVIEW STATE WELFARE PROVISIONS OR PROHIBIT THE USE
OF FEDERAL FUNDS BY THE STATES IN VIEW OF THE FACT THAT CONGRESS HAS
LODGED IN THE DEPARTMENT OF HEW THE POWER TO CUT OFF FEDERAL FUNDS FOR
NONCOMPLIANCE WITH STATUTORY REQUIREMENTS,  WE ARE MOST RELUCTANT TO
ASSUME CONGRESS HAS CLOSED THE AVENUE OF EFFECTIVE JUDICIAL REVIEW TO
THOSE INDIVIDUALS MOST DIRECTLY AFFECTED BY THE ADMINISTRATION OF ITS
PROGRAM.  . . . WE ADHERE TO KING V. SMITH, 392 U.S. 309 (1968), WHICH
IMPLICITLY REJECTED THE ARGUMENT THAT THE STATUTORY PROVISIONS FOR HEW
REVIEW OF PLANS SHOULD BE READ TO CURTAIL JUDICIAL RELIEF AND HELD
ALABAMA'S 'SUBSTITUTE FATHER'  REGULATION TO BE INCONSISTENT WITH THE
FEDERAL STATUTE.  WHILE KING DID NOT ADVERT SPECIFICALLY TO THE
REMEDIAL PROBLEM, THE UNARTICULATED PREMISE WAS THAT THE STATE HAD
ALTERNATIVE CHOICES OF ASSUMING THE ADDITIONAL COST OF PAYING BENEFITS
TO FAMILIES WITH SUBSTITUTE FATHERS OR NOT USING FEDERAL FUNDS TO PAY
WELFARE BENEFITS ACCORDING TO A PLAN THAT WAS INCONSISTENT WITH FEDERAL
REQUIREMENTS."  ID., AT 420 - 421.     RESPONDENT URGES THAT THIS
LANGUAGE IS "TANTAMOUNT TO A FINDING THAT CONGRESS CONDITIONED THE
PARTICIPATION OF A STATE IN THE CATEGORICAL ASSISTANCE PROGRAM ON THE
FORFEITURE OF IMMUNITY FROM SUIT IN A FEDERAL FORUM . . . IRRESPECTIVE
OF THE RELIEF SOUGHT, (SINCE) THE INTENT OF CONGRESS REMAINS
CONSTANT."  BRIEF FOR RESPONDENT 42 - 43.  PETITIONER CONTENDS THAT
THIS LANGUAGE, COUPLED WITH THE FACT THAT THE COURT IN ROSADO REMANDED
THE CASE TO THE DISTRICT COURT TO "AFFORD NEW YORK AN OPPORTUNITYTO
REVISE ITS PROGRAM . . . OR, SHOULD NEW YORK CHOOSE (NOT TO REVISE ITS
PROGRAM), ISSUE ITS ORDER RESTRAINING THE FURTHER USE OF FEDERAL MONIES
PURSUANT TO THE PRESENT STATUTE," 397 U.S., AT 421 - 422, INDICATES
THAT THE COURT FELT THAT RETROACTIVE RELIEF WAS NOT A PERMISSIBLE
REMEDY.  BRIEF FOR PETITIONER 17 - 20.  WE DO NOT REGARD ROSADO AS
CONTROLLING EITHER WAY SINCE THE COURT WAS NOT FACED WITH A DISTRICT
COURT JUDGMENT ORDERING RETROACTIVE PAYMENTS OR WITH A CHALLENGE BASED
ON THE ELEVENTH AMENDMENT. 

/19/  RESPONDENT URGES THAT THE STATEOF ILLINOIS HAS ABOLISHED ITS
COMMON-LAW SOVEREIGN IMMUNITY IN ITS STATE COURTS, AND APPEARS TO ARGUE
THAT SUIT IN A FEDERAL COURT AGAINST THE STATE MAY THUS BE MAINTAINED. 
BRIEF FOR RESPONDENT 23.  PETITIONER CONTENDS THAT SOVEREIGN IMMUNITY
HAS NOT BEEN ABOLISHED IN ILLINOIS AS TO THIS TYPE OF CASE.  BRIEF FOR
PETITIONER 31 - 36.  WHETHER ILLINOIS PERMITS SUCH A SUIT TO BE BROUGHT
AGAINST THE STATE IN ITS OWN COURTS IS NOT DETERMINATIVE OF WHETHER
ILLINOIS HAS RELINQUISHED ITS ELEVENTH AMENDMENT IMMUNITY FROM SUIT IN
THE FEDERAL COURTS.  CHANDLER V. DIX, 194 U.S. 590, 591 - 592 (1904). 

MR. JUSTICE DOUGLAS, DISSENTING. 

CONGRESS PROVIDED IN 42 U.S.C. 1983 THAT: 

     "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,

  REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY,

  SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED

  STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE

DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY

  THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED

  IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDINGS

  FOR REDRESS." 

IN THIS CLASS ACTION RESPONDENT SOUGHT TO ENFORCE AGAINST STATE AID
OFFICIALS OF ILLINOIS PROVISIONS OF THE SOCIAL SECURITY ACT, 42 U.S.C.
1381 - 1385, KNOWN AS THE AID TO THE AGED, BLIND, OR DISABLED (AABD)
PROGRAM.  /1/  THE COMPLAINT ALLEGES VIOLATIONS OF THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT AND ALSO VIOLATIONS OF THE SOCIAL
SECURITY ACT.  HENCE 1983 IS SATISFIED IN HAEC VERBA, FOR A DEPRIVATION
OF "RIGHTS" WHICH ARE "SECURED BY THE CONSTITUTION AND LAWS" IS
ALLEGED.  THE COURT OF APPEALS, THOUGH RULING THAT THE ALLEGED
CONSTITUTIONAL VIOLATIONS HAD NOT OCCURRED, SUSTAINED FEDERAL
JURISDICTION BECAUSE FEDERAL "RIGHTS" WERE VIOLATED.  THE MAIN ISSUE
TENDERED US IS WHETHER THAT RULING OF THE COURT OF APPEALS IS
CONSISTENT WITH THE ELEVENTH AMENDMENT.  /2/ 

ONCE THE FEDERAL COURT HAD JURISDICTION OVER THE CASE, THE FACT THAT
IT RULED ADVERSELY TO THE CLAIMANT ON THE CONSTITUTIONAL CLAIM DID NOT
DEPRIVE IT OF ITS PENDENT JURISDICTION OVER THE STATUTORY CLAIM. 
UNITED STATES V. GEORGIA PUB. SERV. COMM'N, 371 U.S. 285, 287 - 288. 

IN EX PARTE YOUNG, 209 U.S. 123, A SUIT BY STOCKHOLDERS OF A
RAILROAD WAS BROUGHT IN A FEDERAL COURT AGAINST STATE OFFICIALS TO
ENJOIN THE IMPOSITION OF CONFISCATORY RATES ON THE RAILROAD IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  THE ELEVENTH AMENDMENT WAS
INTERPOSED AS A DEFENSE.  THE COURT REJECTED THE DEFENSE SAYING THAT
STATE OFFICIALS WITH AUTHORITY TO ENFORCE STATE LAWS -- "WHO THREATEN
AND ARE ABOUT TO COMMENCE PROCEEDINGS, EITHER OF A CIVIL OR CRIMINAL
NATURE, TO ENFORCE AGAINST PARTIES AFFECTED AN UNCONSTITUTIONAL ACT,
VIOLATING THE FEDERAL CONSTITUTION, MAY BE ENJOINED BY A FEDERAL COURT
OF EQUITY FROM SUCH ACTION."  ID., AT 156.  THE COURT WENT ON TO SAY
THAT A STATE OFFICIAL SEEKING TO ENFORCE IN THE NAME OF A STATE AN
UNCONSTITUTIONAL ACT "COMES INTO CONFLICT WITH THE SUPERIOR AUTHORITY
OF THAT CONSTITUTION, AND HE IS IN THAT CASE STRIPPED OF HIS OFFICIAL
OR REPRESENTATIVE CHARACTER AND IS SUBJECTED IN HIS PERSON TO THE
CONSEQUENCE OF HIS INDIVIDUAL CONDUCT.  THE STATE HAS NO POWER TO
IMPART TO HIM ANY IMMUNITY FROM RESPONSIBILITY TO THE SUPREME AUTHORITY
OF THE UNITED STATES."  ID., AT 159 - 160. 

AS THE COMPLAINT IN THE INSTANT CASE ALLEGES VIOLATIONS BY OFFICIALS
OF ILLINOIS OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT,
IT SEEMS THAT THE CASE IS GOVERNED BY EX PARTE YOUNG SO FAR AS
INJUNCTIVE RELIEF IS CONCERNED.  THE MAIN THRUST OF THE ARGUMENT IS
THAT THE INSTANT CASE ASKS FOR RELIEF WHICH IF GRANTED WOULD AFFECT THE
TREASURY OF THE STATE. 

MOST WELFARE DECISIONS BY FEDERAL COURTS HAVE A FINANCIAL IMPACT ON
THE STATES.  UNDER THE EXISTING FEDERAL-STATE COOPERATIVE SYSTEM, A
STATE DESIRING TO PARTICIPATE, SUBMITS A "STATE PLAN" TO HEW FOR
APPROVAL; ONCE HEW APPROVES THE PLAN THE STATE IS LOCKED INTO THE
COOPERATIVE SCHEME UNTIL IT WITHDRAWS, /3/  ALL AS DESCRIBED IN KING V.
SMITH, 392 U.S. 309, 316 ET SEQ. THE WELFARE CASES COMING HERE HAVE
INVOLVED ULTIMATELY THE FINANCIAL RESPONSIBILITY OF THE STATE TO
BENEFICIARIES CLAIMING THEY WERE DEPRIVED OF FEDERAL RIGHTS.  KING V.
SMITH REQUIRED PAYMENT TO CHILDREN EVEN THOUGH THEIR MOTHER WAS
COHABITATING WITH A MAN WHO COULD NOT PASS MUSTER AS A "PARENT." 
ROSADO V. WYMAN, 397 U.S. 397, HELD THAT UNDER THIS STATE-FEDERAL
COOPERATIVE PROGRAM A STATE COULD NOT REDUCE ITS STANDARD OF NEED IN
CONFLICT WITH THE FEDERAL STANDARD.  IT IS TRUE THAT ROSADO DID NOT
INVOLVE RETROACTIVE PAYMENTS AS ARE INVOLVED HERE.  BUT THE DISTINCTION
IS NOT RELEVANT OR MATERIAL BECAUSE THE RESULT IN EVERY WELFARE CASE
COMING HERE IS TO INCREASE OR REDUCE THE FINANCIAL RESPONSIBILITY OF
THE PARTICIPATING STATE.  IN NO CASE WHEN THE RESPONSIBILITY OF THE
STATE IS INCREASED TO MEET THE LAWFUL DEMAND OF THE BENEFICIARY, IS
THERE ANY LEVY ON STATE FUNDS.  WHETHER THE DECREE IS PROSPECTIVE ONLY
OR REQUIRES PAYMENTS FOR THE WEEKS OR MONTHS WRONGFULLY SKIPPED OVER BY
THE STATE OFFICIALS, THE NATURE OF THE IMPACT ON THE STATE TREASURY IS
PRECISELY THE SAME. 

WE HAVE GRANTED RELIEF IN OTHER WELFARE CASES WHICH INCLUDED
RETROACTIVE ASSISTANCE BENEFITS OR PAYMENTS.  IN STATE DEPT. OF HEALTH
AND REHABILITATIVE SERVICES V. ZARATE, 407 U.S. 918, THE SOLE ISSUE
PRESENTED TO US /4/  WAS WHETHER THE ELEVENTH AMENDMENT BARRED A
JUDGMENT AGAINST STATE OFFICERS FOR RETROACTIVE WELFARE ASSISTANCE
BENEFITS OR PAYMENTS.  THAT HAD BEEN ORDERED BY THE LOWER COURT AND WE
SUMMARILY AFFIRMED, ONLY MR. JUSTICE WHITE VOTING TO NOTE PROBABLE
JURISDICTION.  WE ALSO SUMMARILY AFFIRMED THE JUDGMENT IN STERRETT V.
MOTHERS'  & CHILDREN'S RIGHTS ORGANIZATION, 409 U.S. 809, WHERE ONE OF
THE TWO QUESTIONS /5/  WAS WHETHER PAYMENTS OF BENEFITS RETROACTIVELY
VIOLATED THE ELEVENTH AMENDMENT.  IN WYMAN V. BOWENS, 397 U.S. 49, WE
AFFIRMED A JUDGMENT WHERE PAYMENTS WERE AWARDED IN SPITE OF THE
ARGUMENT THAT THE ORDER WAS AN INCURSION ON THE ELEVENTH AMENDMENT. 
/6/  IN SHAPIRO V. THOMPSON, 394 U.S. 618, WE AFFIRMED A JUDGMENT WHICH
ORDERED PAYMENT OF BENEFITS WRONGULLY WITHHELD; /7/  AND WHILE WE DID
NOT SPECIFICALLY REFER TO THE POINT, THE LOWER COURT HAD EXPRESSLY
REJECTED THE ELEVENTH AMENDMENT ARGUMENT.  /8/ 

AS STATED IN GAITHER V. STERRETT, 346 F. SUPP. 1095, 1099, WHOSE
JUDGMENT WE AFFIRMED, /9/  409 U.S. 1070, THE COURT SAID: 

     "(THIS COURT WOULD NOTE THAT IF DEFENDANTS' POSITION REGARDING

  THE JURISDICTIONAL BAR OF THE ELEVENTH AMENDMENT IS CORRECT, A

  GREAT NUMBER OF FEDERAL DISTRICT COURT JUDGMENTS ARE VOID, AND

  THE SUPREME COURT HAS AFFIRMED MANY OF THESE VOID JUDGMENTS." 

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT IS IN LINE WITH THAT
VIEW; THE OPPOSED VIEW OF ROTHSTEIN V. WYMAN , 467 F.2D 226, FROM THE
COURT OF APPEALS FOR THE SECOND CIRCUIT IS OUT OF HARMONY WITH THE
ESTABLISHED LAW. 

WHAT IS ASKED BY THE INSTANT CASE IS MINOR COMPARED TO THE RELIEF
GRANTED IN GRIFFIN V. SCHOOL BOARD, 377 U.S. 218.  IN THAT CASE WE
AUTHORIZED ENTRY OF AN ORDER PUTTING AN END TO A SEGREGATED SCHOOL
SYSTEM.  WE HELD, INTER ALIA, "THE DISTRICT COURT MAY, IF NECESSARY TO
PREVENT FURTHER RACIAL DISCRIMINATION, REQUIRE THE SUPERVISORS TO
EXERCISE THE POWER THAT IS THEIRS TO LEVY TAXES TO RAISE FUNDS ADEQUATE
TO REOPEN, OPERATE, AND MAINTAIN WITHOUT RACIAL DISCRIMINATION A PUBLIC
SCHOOL SYSTEM IN PRINCE EDWARD COUNTY LIKE THAT OPERATED IN OTHER
COUNTIES IN VIRGINIA."  ID., AT 233.  WE SO HELD AGAINST VIGOROUS
CONTENTIONS OF THE STATE OFFICIALS THAT THE ELEVENTH AMENDMENT
PROTECTED THE STATE; AND IN REPLY WE CITED LINCOLN COUNTY V. LUNING,
133 U.S. 529, AND KENNECOTT COPPER CORP. V. STATE TAX COMM'N, 327 U.S.
573, 579, TO SUPPORT THE PROPOSITION THAT "ACTIONS AGAINST A COUNTY CAN
BE MAINTAINED IN UNITED STATES COURTS IN ORDER TO VINDICATE FEDERALLY
GUARANTEED RIGHTS."  377 U.S., AT 233. 

GRIFFIN IS SOUGHT TO BE DISTINGUISHED ON THE GROUND THAT A "COUNTY" IS
NOT THE "STATE" FOR PURPOSES OF THE ELEVENTH AMENDMENT.  BUT
CONSTITUTIONALLY THE COUNTY IN GRIFFIN WAS EXERCISING STATE POLICY AS
ARE THE COUNTIES HERE, BECAUSE OTHERWISE THE CLAIM OF DENIAL OF EQUAL
PROTECTION WOULD BE OF NO AVAIL. 

COUNTIES ARE CITIZENS OF THEIR STATE FOR PURPOSES OF DIVERSITY OF
CITIZENSHIP.  BULLARD V. CITY OF CISCO, 290 U.S. 179; MOOR V. COUNTY OF
ALAMEDA, 411 U.S. 693, 718 - 719.  AND THEY ARE NOT STATES FOR PURPOSES
OF 28 U.S.C. 1251(A) WHICH GIVES THIS COURT ORIGINAL AND EXCLUSIVE
JURISDICTION OF" "(1) ALL CONTROVERSIES BETWEEN TWO OR MORE STATES.  .
. ."  ILLINOIS V. CITY OF MILWAUKEE, 406 U.S. 91, 98.  BUT, BEING
CITIZENS OF THEIR STATE, SUITS AGAINST THEM BY ANOTHER STATE ARE IN OUR
ORIGINAL BUT NOT EXCLUSIVE JURISDICTION UNDER 28 U.S.C. 1251(B)(3). 
IBID.  YET, AS AGENCIES OF THE STATE WHETHER IN CARRYING OUT
EDUCATIONAL POLICIES OR OTHERWISE, THEY ARE THE STATE, AS GRIFFIN HELD,
FOR PURPOSES OF THE FOURTEENTH AMENDMENT.  AND GRIFFIN, LIKE THE
PRESENT CASE, DEALT ONLY WITH LIABILITY TO CITIZENS FOR STATE POLICY
AND STATE ACTION. 

YET PETITIONER ASSERTS THAT MONEY DAMAGES MAY NOT BE AWARDED AGAINST
STATE OFFENSES, AS SUCH A JUDGMENT WILL EXPEND ITSELF ON THE STATE
TREASURY.  UNABLE TO SAY THAT ILLINOIS ON ENTERING THE FEDERAL-STATE
WELFARE PROGRAM WAIVED ITS IMMUNITY TO SUIT FOR INJUNCTIONS BUT DID NOT
WAIVE ITS IMMUNITY FOR COMPENSATORY AWARDS WHICH REMEDY ITS WILLFUL
DEFAULTSOF OBLIGATIONS UNDERTAKEN WHEN IT JOINED THE COOPERATIVE
VENTURE.  /10/ 

IT IS SAID HOWEVER, THAT THE ELEVENTH AMENDMENT IS CONCERNED NOT
WITH IMMUNITY OF STATES FROM SUIT, BUT WITH THE JURISDICTION OF THE
FEDERAL COURTS TO ENTERTAIN THE SUIT.  THE ELEVENTH AMENDMENT DOES NOT
SPEAK OF "JURISDICTION"; IT WITHHOLDS THE "JUDICIAL POWER" OF FEDERAL
COURTS" TO ANY SUIT IN LAW OR EQUITY . . . AGAINST ONE OF THE UNITED
STATES . . . ."  IF THAT "JUDICIAL POWER," OR "JURISDICTION" IF ONE
PREFERS THAT CONCEPT, MAY NOT BE EXERCISED EVEN IN "ANY SUIT IN . . .
EQUITY" THEN EX PARTE YOUNG SHOULD BE OVERRULED.  BUT THERE IS NONE
EAGER TO TAKE THE STEP.  WHERE A STATE HAS CONSENTED TO JOIN A FEDERAL
STATE COOPERATIVE PROJECT, IT IS REALISTIC TO CONCLUDE THAT THE STATE
HAS AGREED TO ASSUME ITS OBLIGATIONS UNDER THAT LEGISLATION.  THERE IS
NOTHING IN THE ELEVENTH AMENDMENT TO SUGGEST A DIFFERENCE BETWEEN SUITS
AT LAW AND SUITS IN EQUITY, FOR IT TREATS THE TWO WITHOUT DISTINCTION. 
IF COMMON SENSE HAS ANY ROLE TO PLAY IN CONSTITUTIONAL ADJUDICATION,
ONCE THERE IS A WAIVER OF IMMUNITY IT MUST BE TRUE THAT IT IS COMPLETE
SO FAR AS EFFECTIVE OPERATION OF THE STATE-FEDERAL JOINT WELFARE
PROGRAM IS CONCERNED. 

WE HAVE NOT ALWAYS BEEN UNANIMOUS IN CONCLUDING WHEN A STATE HAS
WAIVED ITS IMMUNITY.  IN PARDEN V. TERMINAL R. CO., 377 U.S. 184, WHERE
ALABAMA WAS SUED BY SOME OF ITS CITIZENS FOR INJURIES SUFFERED IN THE
INTERSTATE OPERATION OF AN ALABAMA RAILROAD, THE STATE DEFENDED ON THE
GROUNDS OF THE ELEVENTH AMENDMENT.  THE COURT HELD THAT ALABAMA WAS
LIABLE AS A CARRIER UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT,
SAYING, 

"OUR CONCLUSION IS SIMPLY THAT ALABAMA, WHEN IT BEGAN OPERATION OF
AN INTERSTATE RAILROAD APPROXIAMETLY 20 YEARS AFTER ENACTMENT OF THE
FELA, NECESSARILY CONSENTED TO SUCH SUIT AS WAS AUTHORIZED BY THAT
ACT," ID., AT 192.  THE COURT ADDED: 

     "OUR CONCLUSION THAT THIS SUIT MAY BE MAINTAINED IS IN ACCORD

WITH THE COMMON SENSE OF THIS NATION'S FEDERALISM.  A STATE'S

  IMMUNITY FROM SUIT BY AN INDIVIDUAL WITHOUT ITS CONSENT HAS BEEN

  FULLY RECOGNIZED BY THE ELEVENTH AMENDMENT AND BY SUBSEQUENT

  DECISIONS OF THIS COURT.  BUT WHEN A STATE LEAVES THE SPHERE THAT

  IS EXCLUSIVELY ITS OWN AND ENTERS INTO ACTIVITIES SUBJECT TO

  CONGRESSIONAL REGULATION, IT SUBJECTS ITSELF TO THAT REGULATION

  AS FULLY AS IF IT WERE A PRIVATE PERSON OR CORPORATION."  ID,. AT

  196. 

AS THE COURT OF APPEALS IN THE INSTANT CASE CONCLUDED, ILLINOIS BY
ENTERING INTO THE JOINT FEDERAL-STATE WELFARE PLAN JUST AS SURELY
"(LEFT) THE SPHERE THAT IS EXCLUSIVELY ITS OWN."  IBID. 

IT IS ARGUED THAT PARTICIPATION IN THE PROGRAM OF FEDERAL FINANCIAL
ASSISTANCE IS NOT SUFFICIENT TO ESTABLISH CONSENT ON THE PART OF THE
STATE TO BE USED IN FEDERAL COURTS.  BUT IT IS NOT MERELY PARTICIPATION
WHICH SUPPORTS A FINDING OF ELEVENTH AMENDMENT WAIVER, BUT
PARTICIPATION IN LIGHT OF THE EXISTING STATE OF THE LAW AS EXHIBITED IN
SUCH DECISIONS AS SHAPIRO V. THOMPSON, 394 U.S. 618, WHICH AFFIRMED
JUDGMENTS ORDERING RETROACTIVE PAYMENTS.  TODAY'S HOLDING THAT THE
ELEVENTH AMENDMENT FORBIDS COURT-ORDERED RETROACTIVE PAYMENTS, AS THE
COURT RECOGNIZES, NECESSITATES AN EXPRESS OVERRULING OF SEVERAL OF OUR
RECENT DECISIONS.  BUT IT WAS AGAINST THE BACKGROUND OF THOSE DECISIONS
THAT ILLINOIS CONTINUED ITS PARTICIPATION IN THE FEDERAL PROGRAM, AND
IT CAN HARDLY BE CLAIMED THAT SUCH PARICIPATION WAS IN IGNORANCE OF THE
POSSIBILITY OF COURT-ORDERED RETROACTIVE PAYMENTS.  THE DECISION TO
PARTICIPATE AGAINST THAT BACKGROUND OF PRECEDENT CAN ONLY BE VIEWED AS
A WAIVER OF IMMUNITY FROM SUCH JUDGMENTS.     I WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS. 

/1/  EFFECTIVE JANUARY 1, 1974, THIS AABD PROGRAM WAS REPLACED BY A
SIMILAR PROGRAM.  SEE 42 U.S.C. 801 - 805 (1970 ED., SUPP. II).  THE
PROGRAM IN ILLINOIS IS ADMINISTERED BY THE DEPARTMENT OF PUBLIC AID. 
ILL. REV. STAT., C. 23, 3 - 1 TO 3 - 12 (1973).  THE FORMER PROGRAM WAS
FUNDED IN PART BY THE THE STATE AND IN PART BY THE FEDERAL GOVERNMENT. 
42 U.S.C. 303, 304,306, 1201 - 1204, 1206, 1351 - 1355, 1381 - 1385. 

/2/  THE ELEVENTH AMENDMENT PROVIDES:"THE JUDICIAL POWER OF THE
UNITED STATES SHALL NOT BE CONSTRUED TO EXTEND TO ANY SUIT IN LAW OR
EQUITY, COMMENCED OR PROSECUTED AGAINST ONE OF THE UNITED STATES BY
CITIZENS OF ANOTHER STATE, OR BY CITIZENS OR SUBJECTS OF ANY FOREIGN
STATE." 

AS THE COURT, SPEAKING THROUGH MR. JUSTICE BRENNAN, SAID IN PARDEN
V. TERMINAL R. CO., 377 U.S. 184, 186: "ALTHOUGH THE ELEVENTH AMENDMENT
IS NOT IN TERMS APPLICABLE HERE, SINCE PETITIONERS ARE CITIZENS OF
ALABAMA, THIS COURT HAS RECOGNIZED THAT AN UNCONSENTING STATE IS IMMUNE
FROM FEDERAL-COURT SUITS BROUGHT BY ITS OWN CITIZENS AS WELL AS BY
CITIZENS OF ANOTHER STATE.  HANS V. LOUISIANA, 134 U.S. 1; DUHNE V. NEW
JERSEY, 251 U.S. 311; GREAT NORTHERN LIFE INS. CO. V. READ, 322 U.S.
47, 51; FITTS V.MCGHEE, 172 U.S. 516, 524.  SEE ALSO MONACO V.
MISSISSIPPI, 292 U.S. 313." 

/3/  THE SOCIAL SECURITY ACT STATES WHAT A "STATE PLAN" MUST
PROVIDE.  AT THE TIME THIS SUIT WAS BROUGHT, 42 U.S.C. 1382(A)
PROVIDED:  "A STATE PLAN FOR AID TO THE AGED, BLIND, OR DISABLED, OR
FOR AID TO THE AGED, BLIND, OR DISABLED AND MEDICAL ASSISTANCE FOR THE
AGED, MUST . . . .

      .         .         .         .         . 

"(5) PROVIDE (A) SUCH METHODS OF ADMINISTRATION . . . AS ARE FOUND
BY THE SECRETARY TO BE NECESSARY FOR THE PROPER AND EFFICIENT OPERATION
OF THE PLAN . . .;

        .         .         .      .         . 

"(8) PROVIDE THAT ALL INDIVIDUALS WISHING TO MAKE APPLICATION FOR
AID OR ASSISTANCE UNDER THE PLAN SHALL HAVE OPPORTUNITY TO DO SO, AND
THAT SUCH AID OR ASSISTANCE SHALL BE FURNISHED WITH REASONABLE
PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS;

        .         .         .         .         . 

"(13) INCLUDE REASONABLE STANDARDS, CONSISTENT WITH THE OBJECTIVES
OF THIS SUBCHAPTER, FOR DETERMINING ELIGIBILITY FOR AND THE EXTENT OF
AID OR ASSISTANCE UNDER THE PLAN." 

NEARLY IDENTICAL PROVISIONS ARE NOW FOUND IN 42 U.S.C. 802(A) (1970
ED., SUPP. II). 

THE SECRETARY OF HEW ISSUED MANDATORY FEDERAL TIME STANDARD
REGULATIONS.  HANDBOOK, PUBLIC ASSISTANCE ADMINISTRATION, PT. IV,
2200(B)(3), 2300(B)(5); 45 CFR 206.10(A)(3).  ILLINOIS ADOPTED A 30-DAY
STANDARD FOR AGED AND BLIND APPLICANTS (ILL. CATEG.  ASSISTANCE MANUAL
4004.1) AS CONTRASTED TO HEW'S 60-DAY PERIOD, 2200, SUPRA.  IT IS THAT
CONFLICT WHICH EXPOSES THE MERITS OF THE CONTROVERSY. 

/4/  THE LOWER COURT'S OPINION IS FOUND IN 347 F. SUPP. 1004. 

/5/  THE JURISDICTIONAL STATEMENT HAD AS ITS SECOND QUESTION THE
FOLLOWING: 

"WHETHER A FEDERAL COURT IS PRECLUDED BY THE ELEVENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION FROM ORDERING A STATE AGENCY TO PAY MONEY
FROM THE STATE TREASURY AND FROM FURTHER ORDERING THE STATE AGENCY TO
PERFORM CERTAIN SPECIFIED ACTS WHICH WOULD OTHERWISE BE IN THE
DISCRETION OF THE AGENCY." 

/6/  THE LOWER COURT'S OPINION IS FOUND IN 304 F. SUPP. 717. 
RETROACTIVE PAYMENTS WERE CHALLENGED IN QUESTION 2 OF THE
JURISDICTIONAL STATEMENT. 

/7/  THE LOWER COURT'S OPINION IS FOUND IN 270 F. SUPP. 331. 

/8/  ID., AT 33, N. 5.  THE AWARD OF MONEY DAMAGES WAS ALLEGED TO BE
A VIOLATION OF THE ELEVENTH AMENDMENT IN PART V OF THE JURISDICTIONAL
STATEMENT. 

/9/  THE JURISDICTIONAL STATEMENT IN THE STERRETT CASE EXPLICITLY
URGED THAT THE DECREE BELOW VIOLATED THE ELEVENTH AMENDMENT SINCE IT
WOULD EXPAND ITSELF IN THE PUBLIC TREASURY -- THE SECOND QUESTION IN
THE JURISDICTIONAL STATEMENT. 

/10/  WE SETTLED IN ROSADO V. WYMAN, 397 U.S. 397, THE QUESTION
WHETHER THE GRANT OF AUTHORITY UNDER THE SOCIAL SECURITY ACT TO HEW TO
CUT OFF FEDERAL FUNDS FOR NONCOMPLIANCE WITH STATUTORY REQUIREMENTS
PROVIDES THE EXCLUSIVE AND REMEDY FOR VIOLATIONS OF THE ACT.  WE SAID,
"WE ARE MOST RELUCTANT TO ASSUME CONGRESS HAS CLOSED THE AVENUE OF
EFFECTIVE JUDICIAL REVIEW TO THOSE INDIVIDUALS MOST DIRECTLY AFFECTED
BY THE ADMINISTRATION OF ITS PROGRAM."  ID., AT 420. 

MR. JUSTICE BRENNAN, DISSENTING. 

THIS SUIT IS BROUGHT BY ILLINOIS CITIZENS AGAINST ILLINOIS
OFFICIALS.  IN THAT CIRCUMSTANCE, ILLINOIS MAY NOT INVOKE THE ELEVENTH
AMENDMENT, SINCE THAT AMENDMENT BARS ONLY FEDERAL COURT SUITS AGAINST
STATES BY CITIZENS OF OTHER STATES.  RATHER, THE QUESTION IS WHETHER
ILLINOIS MAY AVAIL ITSELF OF THE NONCONSTITUTIONAL BUT ANCIENT DOCTRINE
OF SOVEREIGN IMMUNITY AS A BAR TO RESPONDENT'S CLAIM FOR RETROACTIVE
AABD PAYMENTS.  IN MY VIEW ILLINOIS MAY NOT ASSERT SOVEREIGN IMMUNITY
FOR THE REASON I EXPRESSED IN DISSENT IN EMPLOYEES V. DEPARTMENT OF
PUBLIC HEALTH AND WELFARE, 411 U.S. 279,298 (1973):  THE STATES
SURRENDERED THAT IMMUNITY IN HAMILTON'S WORDS, "IN THE PLAN OF THE
CONVENTION," THAT FORMED THE UNION, AT LEAST INSOFAR AS THE STATES
GRANTED CONGRESS SPECIFICALLY ENUMERATED POWERS.  SEE ID., AT 319 N. 7;
PARDEN V. TERMINAL R. CO., 377 U.S. 184 (1964).  CONGRESSIONAL
AUTHORITY TO ENACT THE SOCIAL SECURITY ACT, OF WHICH AABD IS A PART,
FORMER 42 U.S. 1381 - 1385 (NOW REPLACED BY SIMILAR PROVISIONS IN 42
U.S.C. 801 - 804 (1970 ED., SUPP. II)), IS TO BE FOUND IN ART. 1, 8,
CL. 1, OF THE THE ENUMERATED POWERS GRANTED CONGRESS BY THE STATES IN
THE CONSTITUTION.  I REMAIN OF THE OPINION THAT "BECAUSE OF ITS
SURRENDER, NO IMMUNITY EXISTS THAT CAN BE THE SUBJECT OF A
CONGRESSIONAL DECLARATION OR A VOLUNTARY WAIVER," 411 U.S., AT 300, AND
THUS HAVE NO OCCASION TO INQUIRE WHETHER OR NOT CONGRESS AUTHORIZED AN
ACTION FOR AABD RETROACTIVE BENEFITS, OR WHETHER OR NOT ILLINOIS
VOLUNTARY WAIVED THE IMMUNITY BY ITS CONTINUED PARTICIPATION IN THE
PROGRAM AGAINST THE BACKGROUND OF PRECEDENTS WHICH SUSTAINED JUDGMENTS
ORDERING RETROACTIVE PAYMENTS. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT APPEALS. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BLACKMUN JOINS,
DISSENTING. 

THE SOCIAL SECURITY ACT'S CATEGORIAL ASSISTANCE PROGRAMS, INCLUDING
THE AID TO THE AGED, BLIND, OR DISABLED (AABD) PROGRAM INVOLVED HERE,
ARE FUNDAMENTALLY DIFFERENT FROM MOST FEDERAL LEGISLATION.  UNLIKE THE
FAIR LABOR STANDARDS ACT INVOLVED IN LAST TERM'S DECISION IN EMPLOYEES
V. DEPARTMENT OF PUBLIC HEALTH AND WELFARE, 411 U.S. 279 (1973), OR THE
FEDERAL EMPLOYERS' LIABILITY ACT AT ISSUE IN PARDEN V. TERMINAL R. CO.,
377 U.S. 184 (1964), THE SOCIAL SECURITY ACT DOES NOT IMPOSE FEDERAL
STANDARDS AND LIABILITY UPON ALL WHO ENGAGE IN CERTAIN REGULATED
ACTIVITIES, INCLUDING OFTEN-UNWILLING STATE AGENCIES.  INSTEAD, THE ACT
SEEKS TO INDUCE STATE PARTICIPATION IN THE FEDERAL WELFARE PROGRAMS BY
OFFERING FEDERAL MATCHING FUNDS IN EXCHANGE FOR THE STATE'S VOLUNTARY
ASSUMPTION OF THE ACT'S REQUIREMENTS.  I FIND THIS BASIC DISTINCTION
CRUCIAL: IT LEADS ME TO CONCLUDE THAT BY PARTICIPATION IN THE PROGRAMS,
THE STATES WAIVE WHATEVER IMMUNITY THEY MIGHT OTHERWISE HAVE FROM
FEDERAL COURT ORDERS REQUIRING RETROACTIVE PAYMENT OF WELFARE
BENEFITS.  /1/ 

IN ITS CONTACTS WITH THE SOCIAL SECURITY ACT'S ASSISTANCE PROGRAMS
IN RECENT YEARS, THE COURT HAS FREQUENTLY DESCRIBED THE ACT AS A
"SCHEME OF COOPERATIVE FEDERALISM."  SEE, E.G., KING V. SMITH, 392 U.S.
309, 316 (1968); JEFFERSON V. HACKNEY, 406 U.S. 535, 542 (1972).  WHILE
THIS PHRASE CAPTURES A NUMBER OF THE UNIQUE CHARACTERISTICS OF THESE
PROGRAMS, FOR PRESENT PURPOSES IT SERVES TO EMPHASIZE THAT THE STATES'
DECISION TO PARTICIPATE IN THE PROGRAMS IS A VOLUNTARY ONE.  IN
DECIDING TO PARTICIPATE, HOWEVER, THE STATES NECESSARILY GIVE UP THEIR
FREEDOM TO OPERATE ASSISTANCE PROGRAMS FOR THE NEEDY AS THEY SEE FIT,
AND BIND THEMSELVES TO CONFORM THEIR PROGRAMS TO THE REQUIREMENTS OF
THE FEDERAL STATUTE AND REGULATIONS.  AS THE COURT EXPLAINED IN KING V.
SMITH, SUPRA, AT 316 - 317 (CITATIONS OMITTED): 

"STATES ARE NOT REQUIRED TO PARTICIPATE IN THE PROGAM, BUT THOSE
WHICH DESIRE TO TAKE ADVANTAGE OF THE SUBSTANTIAL FEDERAL FUNDS
AVAILABLE FOR DISTRIBUTION TO NEEDY CHILDREN (OR NEEDY AGED, BLIND OF
DISABLED) ARE REQUIRED TO SUBMIT AN AFDC (OR AABD) PLAN FOR THE
APPROVAL OF THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE (HEW).  THE
PLAN MUST CONFORM WITH SEVERAL REQUIREMENTS OF THE SOCIAL SECURITY ACT
AND WITH RULES AND REGULATIONS PROMULGATED BY HEW." 

SO HERE, ILLINOIS ELECTED TO PARTICIPATE IN THE AABD PROGRAM, AND
RECEIVED AND EXPENDED SUBSTANTIAL FEDERAL FUNDS IN THE YEARS AT ISSUE. 
IT HEREBY OBLIGATED ITSELF TO COMPLY WITH FEDERAL LAW, INCLUDING THE
REQUIREMENT OF FORMER 42 U.S.C. 1382(A)(8) THAT "SUCH AID OR ASSISTANCE
SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE
INDIVIDUALS."  IN TOWNSEND V. SWANK, 404 U.S. 282, 286 (1971), WE HELD
THAT PARTICIPATING STATES MUST STRICTLY COMPLY WITH THE REQUIREMENT
THAT AID BE FURNISHED "TO ALL ELIGIBLE INDIVIDUALS," AND THAT THE
STATES HAVE NO POWER TO IMPOSE ADDITIONAL ELIGIBILITY REQUIREMENTS
WHICH EXCLUDE PERSONS ELIGIBLE FOR ASSISTANCE UNDER FEDERAL STANDARDS. 
TODAY'S DECISION, ANTE, AT 659 - 660, N. 8, PROPERLY EMPHASIZES THAT
PARTICIPATING STATES MUST ALSO COMPLY STRICTLY WITH THE "REASONABLE
PROMPTNESS"  REQUIREMENT AND THE MORE DETAILED REGULATIONS ADDING
CONTENT TO IT. 

IN AGREEING TO COMPLY WITH THE REQUIREMENTS OF THE SOCIAL SECURITY
ACT AND HEW REGULATIONS, I BELIEVE THAT ILLINOIS HAS ALSO AGREED TO
SUBJECT ITSELF TO SUIT IN THE FEDERAL COURTS TO ENFORCE THESE
OBLIGATIONS.  I RECOGNIZE, OF COURSE, THAT THE SOCIAL SECURITY ACT DOES
NOT ITSELF PROVIDE FOR A CAUSE OF ACTION TO ENFORCE ITS OBLIGATIONS. 
AS THE COURT POINTS OUT, THE ONLY SANCTION EXPRESSLY PROVIDED IN THE
ACT FOR A PARTICIPATING STATE'S FAILURE TO COMPLY WITH FEDERAL
REQUIREMENTS IS THE CUTOFF OF FEDERAL FUNDING BY THE SECRETARY OF HEW. 
FORMER 42 U.S.C. 1384 (NOW 42 U.S.C. 804 (1970 ED., SUPP. II)). 

BUT A CAUSE OF ACTION IS CLEARLY PROVIDED BY 42 U.S.C. 1983, WHICH
IN TERMS AUTHORIZES SUITS TO REDRESS DEPRIVATIONS OF RIGHTS SECURED BY
THE "LAWS" OF THE UNITED STATES.  AND WE HAVE ALREADY REJECTED THE
ARGUMENT THAT CONGRESS INTENDED THE FUNDING CUTOFF TO BE THE SOLE
REMEDY FOR NONCOMPLIANCE WITH FEDERAL REQUIREMENTS.  IN ROSADO V.
WYMAN, 397 U.S. 397, 420 - 423 (1970), WE HELD THAT SUITS IN FEDERAL
COURT UNDER 1983 WERE PROPER TO ENFORCE THE PROVISIONS OF THE SOCIAL
SECURITY ACT AGAINST PARTICIPATING STATES.  MR. JUSTICE HARLAN, WRITING
FORTHE COURT, EXAMINED THE LEGISLATIVE HISTORY AND FOUND "NOT THE
SLIGHTEST INDICATION" THAT CONGRESS INTENDED TO PROHIBIT SUITS IN
FEDERAL COURT TO ENFORCE COMPLIANCE WITH FEDERAL STANDARDS.  ID., AT
422. 

I BELIEVE THAT CONGRESS ALSO INTENDED THE FULL PANOPLY TO
TRADITIONAL JUDICIAL REMEDIES TO BE AVAILABLE TO THE FEDERAL COURTS IN
THESE 1983 SUITS.  THERE IS SURELY NO INDICATION OF ANY CONGRESSIONAL
INTENT TO RESTRICT THE COURTS' EQUITABLE JURISDICTION.  YET THE COURT
HAS HELD THAT "(UNLESS A STATUTE IN SO MANY WORDS, OR BY A NECESSARY
AND INESCAPABLE INFERENCE, RESTRICTS THE COURT'S JUSRISDICTION IN
EQUITY, THE FULL SCOPE OF THAT JURISDICTION IS TO BE RECOGNIZED AND
APPLIED."  PORTER V. WARNER HOLDING CO., 328 U.S. 395, 398 (1946). 
"WHEN CONGRESS ENTRUSTS TO AN EQUITY COURT THE ENFORCEMENT OF
PROHIBITIONS CONTAINED IN A REGULATORY ENACTMENT, IT MUST BE TAKEN TO
HAVE ACTED COGNIZANT OF THE HISTORIC POWER OF EQUITY TO PROVIDE
COMPLETE RELIEF IN LIGHT OF THE STATUTORY PURPOSES."  MITCHELL V.
DEMARIO JEWELRY, 361 U.S. 288, 291 - 292 (1960). 

IN PARTICULAR, I AM FIRMLY CONVINCED THAT CONGRESS INTENDED THE
RESTITUTION OF WRONGFULLY WITHHELD ASSISTANCE PAYMENTS TO BE A REMEDY
AVAILABLE TO THE FEDERAL COURTS IN THESE SUITS.  BENEFITS UNDER THE
CATEGORICAL ASSISTANCE PROGRAMS "ARE A MATTER OF STATUTORY ENTITLEMENT
FOR PERSONS QUALIFIED TO RECEIVE THEM."  GOLDBERG V. KELLY, 397 U.S.
254, 262 (1970).  RETROACTIVE PAYMENT OF BENEFITS SECURES FOR
RECIPIENTS THIS ENTITLEMENT WHICH WAS WITHHELD IN VIOLATION OF FEDERAL
LAW.  EQUALLY IMPORTANT, THE COURTS' POWER TO ORDER RETROACTIVE
PAYMENTS IS AN ESSENTIAL REMEDY TO INSURE FUTURE STATE COMPLIANCE
FEDERAL REQUIREMENTS.  SEE PORTER V. WARNER HOLDING CO., SUPRA, AT
400.  NO OTHER REMEDY CAN EFFECTIVELY DETER STATE FROM THE STRONG
TEMPTATION TO CUT WELFARE BUDGETS BY CIRCUMVENTING THE STRINGENT
REQUIREMENTS OF FEDERAL LAW.  THE FUNDING CUTOFF IS A DRASTIC SANCTION,
ONE WHICH HEW HAS PROVEN UNWILLING OR UNABLE TO EMPLOY TO COMPEL STRICT
COMPLIANCE WITH THE ACT AND REGULATIONS.  SEE ROSADO V. WYMAN, SUPRA,
AT 426 (DOUGLAS, J., CONCURRING).  MOREOVER, THE CUTOFF OPERATES ONLY
PROSPECTIVELY; IT IN NO WAY DETERS THE STATES FROM EVEN A FLAGRANT
VIOLATION OFTHE ACT'S REQUIREMENTS FOR AS LONG AS HEW DOES NOT DISCOVER
THE VIOLATION AND THREATEN TO TAKE SUCH ACTION. 

ABSENT ANY REMEDY WHICH MAY ACT WITH RETROACTIVE EFFECT, STATE
WELFARE OFFICIALS HAVE EVERYTHING TO GAIN AND NOTHING TO LOSE BY
FAILING TO COMPLY WITH THE CONGRESSIONAL MANDATE THAT ASSISTANCE BE
PAID WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS.  THIS IS
NOT IDLE SPECULATION WITHOUT BASIS IN PRACTICAL EXPERIENCE.  IN THIS
VERY CASE, FOR EXAMPLE, ILLINOIS OFFICIALS HAVE KNOWINGLY VIOLATED
SINCE 1968 A FEDERAL REGULATION ON THE STRENGTH OF AN ARGUMENT AS TO
ITS INVALIDITY WHICH EVEN THE MAJORITY DEEMS UNWORTHY OF DISCUSSION. 
ANTE, AT 659 - 660, N. 8.  WITHOUT A RETROACTIVE-PAYMENT REMEDY, WE ARE
INDEED FACED WITH "THE SPECTRE OF A STATE, PERHAPS CALCULATINGLY,
DEFYING FEDERAL LAW AND THEREBY DEPRIVING WELFARE RECIPIENTS OF THE
FINANCIAL ASSISTANCE CONGRESS THOUGHT IT WAS THEM."  JORDAN V. WEAVER,
472 F.2D 985, 995 (CA7 1972).  LIKE THE COURT OF APPEALS, I CANNOT
BELIEVE THAT CONGRESS COULD POSSIBLY HAVE INTENDED ANY SUCH RESULT. 
SUCH INDICIA OF CONGRESSIONAL INTENT AS CAN BE GLEANED FROM THE STATUTE
CONFIRM THAT CONGRESS INTENDED TO AUTHOIZE RETROACTIVE PAYMENT OF
ASSISTANCE BENEFITS UNLAWFULLY WITHHELD.  AVAILABILITY OF SUCH PAYMENTS
IS IMPLICIT IN THE "FAIR HEARING" REQUIREMENT, FORMER 42 U.S.C.
1382(A)(4), WHICH PERMITTED WELFARE RECIPIENTS TO CHALLENGE THE DENIAL
OF ASSISTANCE.  THE REGULATIONS WHICH REQUIRE STATES TO MAKE CORRECTIVE
PAYMENTS RETROACTIVELY IN THE EVENT OF A SUCCESSFUL FAIR HEARING
CHALLENGE, 45 CFR 205.10(A)(18), MERELY CONFIRM THE OBVIOUS STATUTORY
INTENT.  HEW REGULATIONS ALSO AUTHORIZE FEDERAL MATCHING FUNDS FOR
RETROACTIVE ASSISTANCE PAYMENTS MADE PURSUANT TO COURT ORDER, 45 CFR
205.10(B)(2), (B)(3).  WE SHOULD NOT LIGHTLY DISREGARD THIS EXPLICIT
RECOGNITION BY THE AGENCY CHARGED WITH ADMINISTRATION OF THE STATUTE
THAT SUCH A REMEDY WAS AUTHORIZED BY CONGRESS.  SEE GRIGGS V. DUKE
POWER CO., 401 U.S. 424, 433 - 434 (1971). 

ILLINOIS CHOSE TO PARTICIPATE IN THE AABD PROGRAM WITH ITS EYES WIDE
OPEN.  DRAWN BY THE LURE OF FEDERAL FUNDS, IT VOLUNTARILY OBLIGATED
ITSELF TO COMPLY WITH THE SOCIAL SECURITY ACT AND HEW REGULATIONS, WITH
FULL KNOWLEDGE THAT CONGRESS HAD AUTHORIZED ASSISTANCE RECIPIENTS TO GO
INTO FEDERAL COURT TO ENFORCE THESE OBLIGATIONS AND TO RECOVER BENEFITS
WRONGFULLY DENIED.  ANY DOUBTS ON THIS SCORE MUST SURELY HAVE BEEN
REMOVED BY OUR DECISIONS IN ROSADO V. WYMAN, SUPRA, AND SHAPIRO V.
THOMPSON, 394 U.S. 618 (1969), WHERE WE AFFIRMED A DISTRICT COURT
RETROACTIVE PAYMENT ORDER.  I CANNOT AVOID THE CONCLUSION THAT, BY
VIRTUE OF ITS KNOWING AND VOLUNTARY DECISION TO NEVERTHELESS
PARTICIPATE IN THE PROGRAM, THE STATE NECESSARILY CONSENTED TO SUBJECT
ITSELF TO THESE SUITS.  I HAVE NO QUARREL WITH THE COURT'S VIEW THAT
WAIVER OF CONSTITUTIONAL RIGHTS SHOULD NOT LIGHTLY BE INFERRED.  BUT I
SIMPLY CANNOT BELIEVE THAT THE STATE COULD HAVE ENTERED INTO THIS
ESSENTIALLY CONTRACTURAL AGREEMENT WITH THE FEDERAL GOVERNMENT WITHOUT
RECOGNIZING THAT IT WAS SUBJECTING ITSELF TO THE FULL SCOPE OF THE 1983
REMEDY PROVIDED BY CONGRESS TO ENFORCE THE TERMS OF THE AGREEMENT. 

OF COURSE, 1983 SUITS ARE NOMINALLY BROUGHT AGAINST STATE OFFICERS,
RATHER THAN THE STATE ITSELF, AND DO NOT ORDINARILY RAISE ELEVENTH
AMENDMENT PROBLEMS IN VIEW OF THIS COURT IN EX PARTE YOUNG, 209 U.S.
123 (1908).  BUT TO THE EXTENT THAT THE RELIEF AUTHORIZED BY CONGRESS
IN AN ACTION UNDER 1983 MAY BE OPEN TO ELEVENTH AMENDMENT OBJECTIONS,
/2/  THESE OBJECTIONS ARE WAIVED WHEN THE STATE AGREES TO COMPLY WITH
FEDERAL REQUIREMENTS ENFORCEABLE IN SUCH AN ACTION.  I DO NOT FIND
PERSUASIVE THE COURT'S RELIANCE IN THIS CASE ON THE FACT THAT
"CONGRESSIONAL AUTHORIZATION TO SUE A CLASS OF DEFENDANTS WHICH
LITERALLY INCLUDES STATES" IS ABSENT.  ANTE, AT 672.  WHILE TRUE, THIS
FACT IS IRREVELANT HERE, FOR THIS IS SIMPLY NOT A CASE "LITERALLY"
AGAINST THE STATE.  WHILE THE COURT SUCCESSFULLY KNOCKS DOWN THE
STRAWMAN IT HAS THUS SET UP, IT NEVER COMES TO GRIPS WITH THE
INDENIABLE FACT THAT CONGRESS HAS "LITERALLY" AUTHORIZED THIS SUIT
WITHIN THE TERMS OF 1983.  SINCE THERE IS EVERY REASON TO BELIEVE THAT
CONGRESS INTENDED THE FULL PANOPLY OF JUDICIAL REMEDIES TO BE AVAILABLE
IN 1983 EQUITABLE ACTIONS TO ENFORCE THE SOCIAL SECURITY ACT, I THINK
THE CONCLUSION IS INESCAPABLE THAT CONGRESS AUTHORIZED AND THE STATE
CONSENTED TO 1983 ACTIONS IN WHICH THE RELIEF MIGHT OTHERWISE BE
QUESTIONED ON ELEVENTH AMENDMENT GROUNDS. 

MY CONCLUSION THAT THE STATE HAS WAIVED ITS ELEVENTH AMENDMENT
OBJECTIONS TO COURT-ORDERED RETROACTIVE ASSISTANCE PAYMENTS IS FULLY
CONSISTENT WITH LAST TERM'S DECISION IN EMPLOYEES V. DEPARTMENT OF
PUBLIC HEALTH AND WELFARE, 411 U.S. 279 (1973).  AS I EMPHASIZED IN MY
CONCURRING OPINION, THERE WAS NO VOLUNTARY ACTION BY THE STATE IN
EMPLOYEES WHICH COULD REASONABLY BE CONSTRUED AS EVIDENCING ITS CONSENT
TO SUIT IN A FEDERAL FORUM. 

"THE STATE WAS FULLY ENGAGED IN THE OPERATION OF THE AFFECTED
HOSPITALS AND SCHOOLS AT THE TIME OF THE 1966 AMENDMENTS.  TO SUGGEST
THAT THE STATE HAD THE CHOICE OF EITHER CEASING OPERATION OF THESE
VITAL PUBLIC SERVICES OR 'CONSENTING' TO FEDERAL SUIT SUFFICES, I
BELIEVE, TO DEMONSTRATE THAT THE STATE HAD NO TRUE CHOICE AT ALL AND
THEREBY THAT THE STATE DID NOT VOLUNTARILY CONSENT TO THE EXERCISE OF
FEDERAL JURISDICTION . . . ."  ID., AT 296. 

A FINDING OF WAIVER HERE IS ALSO CONSISTENT WITH THE REASONING OF
THE MAJORITY IN EMPLOYEES, WHICH RELIED ON A DISTINCTION BETWEEN
"GOVERNMENTAL" AND PROPRIETARY"  FUNCTIONS OF STATE GOVERNMENT.  ID.,
AT 284 - 285.  THIS DISTINCTION APPARENTLY RECOGNIZES THAT IF SOVEREIGN
IMMUNITY IS TO BE AT ALL MEANINGFUL, THE COURT MUST BE RELUCTANT TO
HOLD A STATE TO HAVE WAIVED ITS IMMUNITY SIMPLY BY ACTING IN ITS
SOVEREIGN CAPACITY -- E.E., BY MERELY PERFORMING ITS "GOVERNMENTAL"
FUNCTIONS.  ON THE OTHER HAND, IN LAUNCHING A PROFITMAKING ENTERPRISE,
"A STATE LEAVES THE SPHERE THAT IS EXCLUSIVELY ITS OWN," PARDEN V.
TERMINAL R. CO., 377 U.S., AT 196, AND A VOLUNTARY WAIVER OF SOVEREIGN
IMMUNITY CAN MORE EASILY BE FOUND.  WHILE CONDUCTING AN ASSISTANCE
PROGRAM FOR THE NEEDY IS SURELY A "GOVERNMENTAL" FUNCTION, THE STATE
HERE HAS DONE FAR MORE THAN OPERATE ITS OWN PROGRAM IN ITS SOVEREIGN
CAPACITY.  IT HAS VOLUNTARILY SUBORDINATED ITS SOVEREIGNTY IN THIS
MATTER TO THAT OF THE FEDERAL GOVERNMENT, AND AGREED TO COMPLY WITH THE
CONDITIONS IMPOSED BY CONGRESS UPON THE EXPENDITURE OF FEDERAL FUNDS. 
IN ENTERING THIS FEDERAL-STATE COOPERATIVE PROGRAM, THE STATE AGAIN
"LEAVES THE SPHERE THAT IS EXCLUSIVELY ITS OWN," AND SIMILARLY MAY MORE
READILY BE FOUND TO HAVE VOLUNTARILY WAIVED ITS IMMUNITY. 

INDEED, THIS IS THE LESSON TO BE DRAWN FROM THIS COURT'S DECISION IN
PETTY V. TENNESSEE-MISSOURI BRIDGE COMM'N, 359 U.S. 275 (1959), WHERE
THE COURT FOUND THAT THE STATES HAD WAIVED THE SOVEREIGN IMMUNITY OF
THE COMMISSION BY JOINING IN AN INTERSTATE COMPACT SUBJECT TO THE
APPROVAL OF CONGRESS.  THE COURT IN PETTY EMPHASIZED THAT IT WAS
"CALLED ON TO INTERPRET NOT UNILATERAL STATE ACTION BUT THE TERMS OF A
CONSENSUAL AGREEMENT"  BETWEEN THE STATES AND CONGRESS, ID., AT 279,
AND HELD THAT THE STATES WHO JOIN SUCH A CONSENSUAL AGREEMENT, "BY
ACCEPTING IT AND ACTING UNDER IT ASSUME THE CONDITIONS THAT CONGRESS
UNDER THE CONSTITUTION ATTACHED."  ID., AT 281 - 282.  ALTHOUGH THE
CONGRESSIONAL INTENT REGARDING THE SUE-AND-BE-SUED CLAUSE WAS BY NO
MEANS CERTAIN, THE COURT HELD THAT THE SURROUNDING CONDITIONS MADE IT
CLEAR THAT THE STATES ACCEPTING IT WAIVED THEIR SOVEREIGN IMMUNITY,
ID., AT 280, ESPECEIALLY SINCE THIS INTERPRETATION WAS NECESSARY TO
KEEP THE COMPACT "A LIVING INTERSTATE AGREEMENT WHICH PERFORMS HIGH
FUNCTIONS IN OUR FEDERALISM."  ID., AT 279. 

I FIND THE APPROACH IN PETTY CONTROLLING HERE.  AS EVEN THE DISSENT
IN THAT CASE RECOGNIZED, ID., AT 285 (FRANKFURTER, J., DISSENTING),
CONGRESS UNDOUBTLY HAS THE POWER TO INSIST UPON A WAIVER OF SOVEREIGN
IMMUNITY AS A CONDITION OF ITS CONSENT TO SUCH A FEDERAL-STATE
AGREEMENT.  SINCE I AM SATISFIED THAT CONGRESS HAS IN FACT DONE SO
HERE, AT LEAST TO THE EXTENT THAT THE FEDERAL COURTS MAY DO "COMPLETE
RATHER THAN TRUNCATED JUSTICE," PORTER V. WARNER HOLDING CO., 328 U.S.,
AT 398, IN 1983 ACTIONS AUTHORIZED BY CONGRESS AGAINST STATE WELFARE
AUTHORITIES, I RESPECTFULLY DISSENT. 

/1/  IN VIEW OF MY CONCLUSION ON THIS ISSUE, I FIND IT UNNECESSARY TO
CONSIDER WHETHER THE COURT CORRECTLY TREATS THIS SUIT AS ONE AGAINST
THE STATE, RATHER THAN AS A SUIT AGAINST A STATE OFFICER PERMISSABLE
UNDER THE RATIONALE OF EX PARTE YOUNG, 209 U.S. 123 (1908). 

/2/  IT SHOULD BE NOTED THAT THERE HAS BEEN NO DETERMINATION IN THIS
CASE THAT STATE ACTION IS UNCONSTITUTIONAL UNDER THE FOURTEENTH
AMENDMENT.  THUS, THE COURT NECESSARILY DOES NOT DECIDE WHETHER THE
STATES'  ELEVENTH AMENDMENT SOVEREIGN IMMUNITY MAY HAVE BEEN LIMITED BY
THE LATER ENACTMENT OF THE FOURTEENTH AMENDMENT TO THE EXTENT THAT SUCH
A LIMITATION IS NECESSARY TO EFFECTUATE THE PURPOSES OF THAT AMENDMENT,
AN ARGUMENT ADVANCED BY AN AMICUS IN THIS CASE.  IN VIEW OF MY
CONCLUSION THAT ANY SOVEREIGN IMMUNITY WHICH MAY EXIST HAS BEEN WAIVED,
I ALSO NEED NOT REACH THIS ISSUE. 

ROBERT J. O'ROURKE, DEPUTY ATTORNEY GENERAL OF ILLINOIS, ARGUED THE
CAUSE FOR PETITIONER.  ON THE BRIEFS WERE WILLIAM J. SCOTT, ATTORNEY
GENERAL, AND DONALD S. CARNOW, SPECIAL ASSISTANT ATTORNEY GENERAL. 

SHELDON ROODMAN ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JACK
GREENBURG, CHARLES STEPHEN RALSTON, AND ERIC SCHNAPPER FOR THE NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., AND BY NANCY DUFF LEVY AND
HENRY A. FREEDMAN FOR THE NLSP CENTER ON SOCIAL WELFARE POLICY AND LAW,
INC.
..END :


















EATON V. CITY OF TULSA, 415 U.S. 697 


       EATON V. CITY OF TULSA

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

           APPEALS OF OKLAHOMA

        NO. 73 - 5925.  DECIDED MARCH 25, 1974;

        CERTIORARI GRANTED; REVERSED AND REMANDED 


    PETITIONER WAS CONVICTED OF CRIMINAL CONTEMPT FOR REFERRING TO

  HIS ALLEGED ASSAILANT AS "CHICKEN SHIT" IN ANSWERING A QUESTION

  ON CROSS-EXAMINATION AT HIS TRIAL FOR VIOLATING A TULSA,

  OKLAHOMA, ORDINANCE.  THE OKLAHOMA COURT OF CRIMINAL APPEALS

  AFFIRMED, REJECTING PETITIONER'S CONTENTION THAT THE CONVICTION

  MUST BE TAKEN AS RESTING SOLELY ON THE USE OF THE EXPLETIVE, AND

  HOLDING THAT SINCE THE RECORD SHOWED THAT PETITIONER IN ADDITION

  TO USING THE EXPLETIVE MADE "DISCOURTEOUS RESPONSES" TO THE TRIAL

JUDGE, THERE WAS SUFFICIENT EVIDENCE UPON WHICH THE TRIAL COURT

  COULD FIND PETITIONER IN DIRECT CONTEMPT.  HELD: 

     1.  THE SINGLE ISOLATED USAGE OF STREET VERNACULAR, NOT

  DIRECTED AT THE JUDGE OR ANY OFFICER OF THE COURT, CANNOT

  CONSTITUTIONALLY SUPPORT THE CONTEMPT CONVICTION, SINCE UNDER THE

  CIRCUMSTANCES IT DID NOT "CONSTITUTE AN IMMINENT . . . THREAT TO

  THE ADMINISTRATION OF JUSTICE."  CRAIG V. HARNEY, 331 U.S. 367,

  376.  2.  WHERE THE TRIAL COURT'S JUDGMENT AND SENTENCE DISCLOSED

  THAT THE CONVICTION RESTED ON THE USE OF THE EXPLETIVE ONLY, THE

  COURT OF CRIMINAL APPEALS, IN RELYING ON PETITIONER'S ADDITIONAL

"DISCOURTEOUS RESPONSES," DENIED PETITIONER CONSTITUTIONAL DUE

  PROCESS IN SUSTAINING THE TRIAL COURT BY TREATING THE CONVICTION

  AS ONE UPON A CHARGE NOT MADE. 

PER CURIAM. 

IN ANSWERING A QUESTION ON CROSS-EXAMINATION AT HIS TRIAL, IN THE
MUNICIPAL COURT OF TULSA, OKLAHOMA, FOR VIOLATING A MUNICIPAL
ORDINANCE, PETITIONER REFERRED TO AN ALLEGED ASSAILANT AS "CHICKEN
SHIT."  IN CONSEQUENCE HE WAS PROSECUTED AND CONVICTED UNDER AN
INFORMATION THAT CHARGED HIM WITH "DIRECT CONTEMPT,"IN VIOLATION OF
ANOTHER TULSA ORDINANCE, "BY HIS INSOLENT BEHAVIOR DURING OPEN COURT
AND IN THE PRESENCE OF (THE JUDGE), TO WIT: BY USING THE LANGUAGE
'CHICKEN SHIT' . . . ."  THE OKLAHOMA COURT OF CRIMINAL APPEALS, IN AN
UNREPORTED ORDER AND OPINION, AFFIRMED. 

THIS SINGLE ISOLATED USAGE OF STREET VERNACULAR, NOT DIRECTED AT THE
JUDGE OR ANY OFFICER OF THE COURT, CANNOT CONSTITUTIONALLY SUPPORT THE
CONVICTION OF CRIMINAL CONTEMPT.  "THE VEHEMENCE OF THE LANGUAGE USED
IS NOT ALONE THE MEASURE OF THE POWER TO PUNISH FOR CONTEMPT.  THE
FIRES WHICH IT KINDLES MUST CONSTITUTE AN IMMINENT, NOT MERELY A
LIKELY, THREAT TO THE ADMINISTRATION OF JUSTICE."  CRAIG V. HARNEY, 331
U.S. 367, 376 (1947).  IN USING THE EXPLETIVE IN ANSWERING THE QUESTION
ON CROSS-EXAMINATION "(IT IS NOT CHARGED THAT (PETITIONER) HERE
DISOBEYED ANY VALID COURT ORDER, TALKED LOUDLY, ACTED BOISTEROUSLY, OR
ATTEMPTED TO PREVENT THE JUDGE OR ANY OTHER OFFICER OF THE COURT FROM
CARRYING ON HIS COURT DUTIES."  HOLT V. VIRGINIA, 381 U.S. 131, 136
(1965); SEE ALSO IN RELITTLE, 404 U.S. 553 (1972).  IN THE
CIRCUMSTANCES, THE USE OF THE EXPLETIVE THUS CANNOT HE HELD TO
"CONSTITUTE AN IMMINENT . . . . THREAT TO THE ADMINISTRATION OF
JUSTICE." 

IN AFFIRMING, HOWEVER, THE COURT OF CRIMINAL APPEALS REJECTED
PETITIONER'S CONTENTION THAT THE CONVICTION MUST BE TAKEN AS RESTING
SOLELY ON THE USE OF THE EXPLETIVE.  RATHER, THAT COURT CONCLUDED FROM
ITS EXAMINATION OF THE TRIAL RECORD THAT, IN ADDITION TO THE USE OF THE
EXPLETIVE, PETITIONER MADE "DISCOURTEOUS RESPONSES" TO THE TRIAL
JUDGE.  THE COURT THEREFORE HELD THAT THE CONVICTION SHOULD BE AFFIRMED
BECAUSE "COUPLING DEFENDANT'S EXPLETIVE WITH THE DISCOURTEOUS
RESPONSES, IT IS THIS COURT'S OPINION THERE WAS SUFFICIENT EVIDENCE
UPON WHICH THE TRIAL COURT COULD FIND DEFENDANT WAS IN DIRECT CONTEMPT
OF COURT."  (EMPHASIS SUPPLIED.) 

HOWEVER, THE QUESTION IS NOT UPON WHAT EVIDENCE THE THE TRIAL JUDGE
DID FIND PETITIONER GUILTY.  THERE IS NO TRANSCRIPT OF THE CONTEMPT
PROCEEDING SINCE THE PROCEEDING WAS NOT STENOGRAPHICALLY RECORDED.  THE
TRIAL JUDGE DID, HOWEVER, ENTER A "JUDGMENT AND SENTENCE,"  AND WE READ
THAT DOCUMENT CLEARLY TO ESTABLISH THAT THE TRIAL JUDGE RESTED THE
CONVICTION UPON THE USE OF THE EXPLETIVE ONLY.  FOR THE SINGLE CHARGE
OF "INSOLENT BEHAVIOR"  SPECIFIED IN THE INFORMATION WAS "TO WIT: BY
USING THE LANGUAGE 'CHICKEN-SHIT' . . . ," AND THE JUDGMENT AND
SENTENCE, REFERRING EXPRESSLY TO THE INFORMATION, RECORDS THAT
PETITIONER WAS "DULY AND LEGALLY TRIED AND CONVICTED OF SAID OFFENSE"
AND, FURTHER, THAT "THE COURT DOES NOW HEREBY ADJUDGE AND SENTENCE THE
SAID DEFENDANT FOR THE SAID OFFENSE BY HIM COMMITTED."  (EMPHASIS
SUPPLIED.)  THE COURT OF CRIMINAL APPEALS THUS DENIED PETITIONER
CONSTITUTIONAL DUE PROCESS IN SUSTAINING THE TRIAL COURT BY TREATING
THE CONVICTION AS A CONVICTION UPON A CHARGE NOT MADE.  COLE V.
ARKANSAS, 333 U.S. 196 (1948).  /1/ 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR
CERTIORARI ARE GRANTED, THE JUDGMENT IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDING NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  ASSUMING, ARGUENDO, (1) THAT THE INFORMATION SUFFICIENTLY
CHARGED PETITIONER FOR BOTH USE OF THE EXPLETIVE AND HIS ALLEGEDLY
"DISCOURTEOUS RESPONSES," AND (2) THAT THERE WAS EVIDENCE OF THE LATTER
OFFENSE, REVERSAL IS STILL REQUIRED, SINCE THE RECORD FAILS TO "NEGATE
THE POSSIBILITY," STREET V. NEW YORK, 394 U.S. 576, 588 (1969), THAT
THE CONVICTION WAS BASED SOLELY OR IN PART ON THE USE OF THE
EXPELTIVE.  "(WHEN A SINGLE-COUNT . . . INFORMATION CHARGES THE
COMMISSION OF A CRIME BY VIRTUE OF THE DEFENDANT'S HAVING DONE BOTH A
CONSTITUTIONALLY PROTECTED ACT AND ONE WHICH MAY BE UNPROTECTED, AND A
GUILTY VERDICT ENSUES WITHOUT ELUCIDATION THERE IS AN UNACCEPTABLE
DANGER THAT THE TRIER OF FACT WILL HAVE REGARDED THE TWO ACTS AS
'INTERTWINED' AND HAVE RESTED THE CONVICTION ON BOTH TOGETHER."  IDID. 
CF. STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931); THOMAS V COLLINS, 323
U.S. 516 (1945); BACHELLAR V. MARYLAND, 397 U.S. 564 (1970).  AND THIS
PRINCIPLE IS NOT LIMITED, NOR SHOULD IT BE, TO CASES IN WHICH THE
CONVICTION MAY HAVE BEEN BASED ON PROTECTED SPEECH.  SEE WILLIAMS V.
NORTH CARLONIA, 317 U.S. 287, 291 - 292 (1942).  HERE, THE "JUDGMENT
AND SENTENCE" NOT ONLY DOES NOT DISPEL THE POSSIBILITY THAT
PETITIONER'S CONVICTION WAS BASED SOLELY OR PARTIALLY ON THE USE OF THE
EXPLETIVE, BUT PLAINLY SUPPORTS THE OPPOSITE CONCLUSION. 

MR. JUSTICE POWELL, CONCURRING. 

I CONCUR IN THE COURT'S PER CURIAM OPINION.  I WRITE BRIEFLY ONLY TO
MAKE CLEAR MY UNDERSTANDING OF THE LIMITED SCOPE OF ITS HOLDING. 
WHETHER THE LANGUAGE USED BY PETITIONER IN A COURTROOM DURING TRIAL
JUSTIFIED EXERCISE OF THE CONTEMPT POWER DEPENDED UPON THE FACTS. 
UNDER THE CIRCUMSTANCES HERE, THE IMPOSITION OF A CONTEMPT SANCTION
AGAINST PETITIONER DENIED HIM DUE PROCESS OF LAW. 

THE PHRASE "CHICKEN SHIT" WAS USED BY PETITIONER AS A
CHARACTERIZATION OF THE PERSON WHOM PETITIONER BELIEVED ASSAULTED HIM. 
AS NOTED IN THE COURT'S OPINION, IT WAS NOT DIRECTED AT THE TRIAL JUDGE
OR ANYONE OFFICIALLY CONNECTED WITH THE TRIAL COURT.  BUT THE
CONTROLLING FACT, IN MY VIEW, AND ONE THAT SHOULD BE EMPHASIZED, IS
THAT PETITIONER RECEIVED NO PRIOR WARNING OR CAUTION FROM THE TRIAL
JUDGE WITH RESPECT TO COURT ETIQUETTE.  IT MAY WELL BE, IN VIEW OF
CONTEMPORARY STANDARDS AS TO THE USE OF VULGAR AND EVEN PROFANE
LANGUAGE, THAT THIS PARTICULAR PETITIONER HAD NO REASON TO BELIEVE THAT
THIS EXPLETIVE WOULD BE OFFENSIVE OR IN ANY WAY DISRUPTIVE OF PROPER
COURTROOM DECORUM.  LANGUAGE LIKELY TO OFFEND THE SENSIBILITY OF SOME
LISTENERS IS NOW FAIRLY COMMONPLACE IN MANY SOCIAL GATHERINGS AS WELL
AS IN PUBLIC PERFORMANCES. 

I PLACE A HIGH PREMIUM ON THE IMPORTANCE OF MAINTAINING CIVILTY AND
GOOD ORDER IN THE COURTROOM.  BUT BEFORE THERE IS RESORT TO THE SUMMARY
REMEDY OF CRIMINAL CONTEMPT, THE COURT AT LEAST OWES THE PARTY
CONCERNED SOME SORT OF NOTICE OR WARNING.  NO DOUBT THERE ARE
CIRCUMSTANCES IN WHICH A COURTROOM OUTBURST IS SO EGREGIOUS AS TO
JUSTIFY A SUMMARY RESPONSE BY THE JUDGE WITHOUT SPECIFIC WARNING, BUT
THIS IS SURELY NOT SUCH A CASE. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

THE COURT SUMMARILY REVERSES PETITIONER'S CONVICTION FOR CONTEMPT OF
COURT ON THE GROUNDS THAT THE EXPLETIVE WHICH PETITIONER USED COULD NOT
BY ITSELF CONSTITUTE A CONTEMPT, AND THAT THE ADDITIONAL "DISCOURTEOUS
RESPONSES"  PETITIONER MADE TO THE TRIAL JUDGE COULD NOT BE PROPERLY
CONSIDERED BY EITHER THE MUNCIPAL COURT OF TULSA OR THE OKLAHOMA COURT
OF CRIMINAL APPEALS WHICH AFFIRMED PETITIONER'S CONVICTION.  I DISAGREE
WITH THE COURT AS TO EACH OF THESE GROUNDS. 

        I 

EVEN THE COURT APPEARS TO SHY AWAY FROM A FLAT RULE, ANALOGOUS TO
THE HOARY DOCTRINE OF THE LAW OF TORTS THAT EVERY DOG IS ENTITLED TO
ONE BITE, TO THE EFFECT THAT EVERY WITNESS IS ENTITLED TO ONE FREE
CONTUMACIOUS OR OTHER IMPERMISSIBLE REMARK.  THE COURT, QUOTING
LANGUAGE FROM HOLT V. VIRGINIA, 381 U.S. 131, 136 (1965), SAYS THAT
"'(IT IS NOT CHARGED THAT (PETITIONER) HERE . . . TALKED LOUDLY, ACTED
BOISTEROUSLY, OR ATTEMPTED TO PREVENT THE JUDGE OR ANY OTHER OFFICER OF
THE COURT FROM CARRYING ON HIS COURT DUTIES.'"  BUT WE DO NOT HAVE ANY
TRANSCRIPT OF PETITIONER'S TRIAL FOR CONTEMPT, AND WE SIMPLY DO NOT
KNOW WHETHER THE EVIDENCE IN THAT TRIAL MAY OR MAY NOT HAVE SHOWN THAT
PETITIONER "TALKED LOUDLY" OR "ACTED BOISTEROUSLY" IN THE COURSE OF HIS
RATHER UNUSUAL COLLOQUY WITH THE JUDGE.  RESPONDENT IN ITS BRIEF IN
OPPOSITION CERTAINLY MAKES NO CONCESSION IN PETITIONER'S FAVOR.  IF, AS
APPEARS LIKELY, NEITHER PARTY IS IN A POSITION TO FURNISH ANY
JUDICIALLY COGNIZABLE ACCOUNT OF THE PETITIONER'S CONTEMPT TRIAL, THIS
HIATUS IN THE RECORD CANNOT BE FILLED IN BY WHAT AMOUNTS TO NO MORE
THAN SPECULATION IN FAVOR OF PETITIONER'S POSITION: 

"IF THE RESULT OF THE ADJUDICATORY PROCESS IS NOT TO BE SET AT
NAUGHT, IT IS NOT ASKING TOO MUCH THAT THE BURDEN OF SHOWING ESSENTIAL
UNFAIRNESS BE SUSTAINED BY HIM WHO CLAIMS SUCH INJUSTICE AND SEEKS TO
HAVE THE RESULT SET ASIDE, AND THAT IT BE SUSTAINED NOT AS A MATTER OF
SPECULATION BUT AS A DEMONSTRABLE REALITY."  ADAMS V. UNITED STATES EX
REL.  MCCANN, 317 U.S. 269, 281 (1942).  SEE STROBLE V. CALIFORNIA, 343
U.S. 181, 198 (1952). 

     II 

HAVING ASSUMED THAT THE "SINGLE EXPLETIVE" UTTERED BY PETITIONER
COULD NOT BY ITSELF CONSTITUTIONALLY CONSTITUTE A CONTEMPT, THE COURT
GOES ON TO HOLD THAT THE COURT OF CRIMINAL APPEALS' RELIANCE ON
PETITIONER'S DISCOURTEOUS ADDITIONAL REMARKS DURING THE COURSE OF HIS
COLLOQUY WITH THE TRIAL COURT, AMOUNTED TO "TREATING THE CONVICTION AS
A CONVICTION UPON A CHARGE NOT MADE," IN VIOLATION OF COLE V. ARKANSAS,
333 U.S. 196 (1948).  WHILE WE DO NOT HAVE THE TRANSCRIPT OF THE
CONTEMPT TRIAL, THE RECORD DOES SHOW THE COLLOQUY WHICH OCCURRED
BETWEEN PETITIONER AND THE TRIAL JUDGE IN THE MUNICIPAL COURT DURING
PETITIONER'S TRIAL FOR AN ALLEGED VIOLATION OF A TULSA ORDINANCE. 
DURING CROSS-EXAMINATION IN RESPONSE TO A QUESTION ASKED HIM BY THE
ASSISTANT CITY PROSECUTOR, THE FOLLOWING EXCHANGE OCCURRED (EMPHASIS
SUPPLIED): 

     "Q.  WHAT DID YOU DO? 

 "A.  I SENSED SOMETHING FROM BEHIND ME AND I TURNED MAYBE

  ENOUGH TO LOOK OVER MY SHOULDER.  AT THE TIME I TURNED AND LOOKED

  OVER MY SHOULDER I COULD SEE THIS GUY'S FACE AND SHOULDERS COMING

  AT ME; ALMOST SIMULTANEOUSLY HE HIT ME AND HE KNOCKED ME OVER ON

  MY BACK A BENCH DOWN.  LUCKILY, SOMEBODY GRABBED HIM AND PULLED

  HIM BACK, AND I GOT UP OFF MY BACK AFTER BEING KNOCKED DOWN ON MY

  BACK, WRENCHED MY ELBOW, GOT UP TO A VERTICAL POSTURE WHERE I

  WOULD HAVE SOME KIND OF DEFENSIBILITY AND MOVED UP TO WHERE I HAD

  SQUARE FOOTING. 

     "Q.  WHAT'S DEFENSIBILITY? 

     "A.  I THINK THAT WOULD BE A PLACE WHERE YOU WERE ABLE TO GET

  YOUR FEET TO STAND SQUARE SO YOU WOULD BE HALF READY FOR SOME

  CHICKEN SHIT THAT HAD JUMPED YOU FROM BEHIND. 

      "THE COURT: MR. EATON, YOU WILL HAVE UNTIL TOMORROW MORNING
TO

  SHOW ME WHY YOU SHOULD NOT BE HELD IN DIRECT CONTEMPT OF THIS

  COURT.  I'M NOT GOING TO PUT UP WITH THAT KIND OF LANGUAGE IN

  THIS COURT. 

     "THE WITNESS: THAT'S FINE.  I DON'T FEEL AS THOUGH I NEED TO

  PUT UP WITH WHY I RECEIVED THIS. 

     "THE COURT: MR. EATON, DID YOU HEAR WHAT I JUST SAID? 

     "THE WITNESS: YES, SIR. 

     "THE COURT: THAT KIND OF LANGUAGE YOU USED IN THIS COURT, I

  WILL NOT PUT UP WITH ANY MORE OF THAT TALK IN THIS COURTROOM. 

  THAT WAS NOT RESPONSIVE TO ANY TYPE OF QUESTION WHATSOEVER AND

  I'M NOT GOING TO HAVE PROFANITY IN THIS COURTROOM AND YOU'RE

  GOING TO BE HELD IN DIRECT CONTEMPT OF THIS COURT UNLESS YOU CAN

  SHOW ME BY TOMORROW MORNING, CAUSE WHY YOU SHOULD NOT BE. 

     "THE WITNESS: FINE.  I'M NOT GOING TO SHOW YOU ANYTHING IN THE

  MORNING ANY MORE THAN I CAN SHOW YOU NOW, BUT I THINK ME BEING

ASKED TO SPECULATE AS TO WHY SOMEONE WOULD JUMP ON ME FROM BEHIND

  IS NOT WITHIN ANY KIND OF REALM OF PROSECUTION---, 

     "THE COURT: THE COURT WILL BE IN RECESS." 

ON NOVEMBER 6, 1972, PETITIONER RETURNED TO THE COURT IN RESPONSE TO
THE JUDGE'S DIRECTION, AND WAS AT THAT TIME FOUND GUILTY OF DIRECT
CONTEMPT OF COURT IN VIOLATION OF ANOTHER TULSA ORDINANCE.  PETITIONER
WAS FINED $50 PLUS COSTS.  PETITIONER APPEALED HIS CONVICTION TO THE
COURT OF CRIMINAL APPEALS OF OKLAHOMA.  HIS PRINCIPAL CONTENTION IN
THAT COURT WAS THAT THE USE OF THE EXPLETIVE "CHICKEN SHIT" WAS NOT
DIRECTED AT THE TRIAL JUDGE, AND ALSO THAT THE CONVICTION FOR DIRECT
CONTEMPT WAS BASED SOLELY ON THE USE OF THE EXPLETIVE, IN VIOLATION OF
HIS FIRST AND FOURTEENTH AMENDMENT RIGHTS. 

THE COURT OF CRIMINAL APPEALS AFFIRMED THE CONVICTION IN THIS
LANGUAGE: 

     "COUNSEL SUBMITS IN HIS BRIEF THE EXPLETIVE USED BY DEFENDANT
.

  . . DOES NOT CONSTITUTE DIRECT CONTEMPT PER SE.  WE FIND THE

  EXPLETIVE TO NOT BE THE ONLY COMMENT IN QUESTION.  AFTER STUDYING

  THE ENTIRE PORTION OF THE RECORD ABOVE REPRODUCED, WE NOTE THAT

  THE RECORD CLEARLY MANIFESTS IN ITS ENTIRETY DISCOURTEOUS

  RESPONSES TO THE TRIAL COURT UPON THE TRIAL COURT'S OBSERVATIONS

  MADE DURING THE COURSE OF TRIAL.  IN CHAMPION V. STATE, OKLA.

  CR., 456 P. 2D 571 (1969), THIS COURT HELD SUCH DISCOURTEOUS

  RESPONSES ARE SUFFICIENT TO WARRANT A CITATION FOR CONTEMPT. 

  COUPLING DEFENDANT'S EXPLETIVE WITH THE DISCOURTEOUS RESPONSES,

  IT IS THIS COURT'S OPINION THERE WAS SUFFICIENT EVIDENCE UPON

  WHICH THE TRIAL COURT COULD FIND DEFENDANT WAS IN DIRECT CONTEMPT

OF COURT." 

YET THE COURT REVERSES PETITIONER'S CONVICTION ON ITS DETERMINATION
THAT THE TRIAL JUDGE "RESTED THE CONVICTION UPON THE USE OF THE
EXPLETIVE ONLY."  THE COURT READS THE CRIMINAL INFORMATION TO CHARGE
SOLELY THE USE OF THE EXPLETIVE, AND RELIES ON THE FACT THAT THE
JUDGMENT AND SENTENCE REFERS SPECIFICALLY TO THE "OFFENSE" CHARGED IN
THE INFORMATION. 

THE COURT'S READING OF THE LANGUAGE OF THE INFORMATION SEEMS TO ME
MUCH TOO RESTRICTIVE; THE INFORMATION CHARGED THAT PETITIONER "DID . .
. COMMIT A CONTEMPT OF COURT BY HIS INSOLENT BEHAVIOR DURING OPEN COURT
AND IN THE PRESENCE OF JUDGE THOMAS S. CREWSON, TO-WIT: BY USING THE
LANGUAGE 'CHICKEN SHIT,' IN THE CITY OF TULSA MUNICIPAL COURT . . ."  I
AM NOT PREPARED TO SAY THAT THIS LANGUAGE WOULD NOT PUT PETITIONER ON
NOTICE THAT HE WAS BEING CHARGED WITH CONTEMPT OF COURT BY HIS COURSE
OF CONDUCT WHICH BEGAN WITH THE USE OF THE EXPLETIVE AND ENDED WITH HIS
DISCOURTEOUS REMARKS TO THE TRIAL JUDGE.  IN THE ABSENCE OF A
TRANSCRIPT OF THE CONTEMPT PROCEEDINGS, THE COURT IS SIMPLY NOT IN A
POSITION TO KNOW WHETHER THE TRIAL JUDGE BASED THE CONTEMPT CONVICTION
SOLELY ON THE USE OF THE EXPLETIVE, AS THE COURT ASSUMES, OR WHETHER
THE TRIAL JUDGE FOUND PETITIONER GUILTY OF CONTEMPT BASED ON THE COURSE
OF CONDUCT WHICH BEGAN WITH THE EXPLETIVE AND ENDED WITH THE
DISCOURTEOUS REMARKS. 

THE OKLAHOMA COURT OF CRIMINAL APPEALS APPARENTLY FELT THAT THE
TRIAL JUDGE HAD CONSIDERED THE OTHER REMARKS MADE BY PETITIONER IN
FINDING HIM GUILTY OF CONTEMPT.  /1/  PRESUMABLY THAT COURT WAS AWARE
OF WHAT THE INFORMATION CHARGED AND WHAT THE JUDGMENT AND SENTENCE
SAID.  THE "JUDGMENT AND SENTENCE" HEAVILY RELIED UPON BY THE COURT FOR
ITS REFERENCE TO THE "(SAID) OFFENSE" CHARGED IN THE INFORMATION IS
SIMPLY A PREPRINTED STANDARDIZED FORM IN WHICH THE ONLY THING TO BE
FILLED IN BY THE SENTENCING JUDGE IS THE NAME OF THE DEFENDANT, THE
DATE OF THE JUDGMENT , THE SENTENCE IMPOSED, AND THE ORDINANCE THE
DEFENDANT IS CHARGED WITH VIOLATING. 

COLE V. ARKANSAS, 333 U.S. 196 (1948), WAS A VERY DIFFERENT CASE
FROM THE INSTANT ONE.  THERE THE PETITIONERS WERE TRIED UNDER AN
INFORMATION CHARGING THEM ONLY WITH A VIOLATION OF A SECTION OF A STATE
STATUTE MAKING IT AN OFFENSE TO PROMOTE AN UNLAWFUL ASSEMBLAGE DURING A
LABOR DISPUTE.  THE TRIAL COURT HAD INSTRUCTED THE JURY ON THAT
SUPREME COURT OF ARKANSAS, PETITIONERS HAD CONTENDED THAT THE SECTION
OF THE STATE STATUTE VIOLATED THE CONSTITUTION.  WITHOUT PASSING ON
THAT QUESTION, THE STATE SUPREME COURT SUSTAINED PETITIONERS'
CONVICTIONS ON THE GROUNDS THAT THE INFORMATION CHARGED AND THE
EVIDENCE SHOWED THAT PETITIONERS HAD VIOLATED AN ENTIRELY DIFFERENT
USING FORCE AND VIOLENCE TO PREVENT A PERSON FROM ENGAGING IN A LAWFUL
VOCATION.  THIS COURT REVERSED, NOTING THAT THE TRIAL JUDGE HAD, AT THE
REQUEST OF THE PROSECUTOR, READ THE FORMER SECTION TO THE JURY AND HAD
INSTRUCTED THAT THE "'OFFENSE . . . ON TRIAL IN THIS CASE'" IS THE
"PROMOTING, ENCOURAGING OR AIDING IN THIS CASE'" IS THE "'PROMOTING,
ENCOURAGING OR AIDING OF SUCH UNLAWFUL ASSEMBLAGE BY CONCERT OF ACTION
AMONG THE DEFENDANTS AS IS CHARGED IN THE INFORMATION HERE WE HAVE NO
BASIS TO CONCLUDE WITH ANY DEGREE OF CERTAINTY 

HERE WE HAVE NO BASIS TO CONCLUDE WITH ANY DEGREE OF CERTAINTY THAT
THE PETITIONER'S CONTEMPT CONVICTION RESTS SOLELY ON THE USE OF THE
EXPLETIVE.  BOTH STREET V. NEW YORK, 394 U.S. 576 (1969), AND WILLIAMS
V. NORTH CAROLINA, 317 U.S. 287 (1942), WERE CASES WHERE ALL OF THE
RELEVANT LOWER COURT PROCEEDINGS WERE INCORPORATED IN THE RECORD BEFORE
THIS COURT, AND AMBIGUITY WAS PRESENT DESPITE THAT FACT.  /2/  HERE,
HOWEVER, THERE IS NO SUCH AMBIGUITY ARISING OUT OF A FULL RECORD; THERE
IS INSTEAD A TOTAL ABSENCE OF ANY RECORD OF THE TRIAL WHICH RESULTED IN
THE CONVICTION WHICH THE COURT NOW REVERSES.  I HAVE NO DOUBT THAT A
MAJORITY OF THIS COURT WOULD REFUSE TO REVERSE PETITIONER'S CONVICTION
IN THIS CASE IF IT HAD A FULL RECORD BEFORE IT, AND THE RECORD
INDICATED THAT AT THE CONTEMPT HEARING THE TRIAL JUDGE HAD MADE IT
CLEAR TO PETITIONER THAT HE WAS BEING CHARGED WITH CONTEMPT BASED ON
THE COURSE OF CONDUCT BEGINNING WITH HIS USE OF THE EXPLETIVE AND
ENDING WITH HIS DISCOURTEOUS REMARKS TO THE JUDGE.  WHATEVER THE FORCE
OF STREET AND WILLIAMS ON THEIR OWN FACTS, WHERE AMBIGUITY WAS PRESENT
DESPITE THE FACT THAT THERE WAS A FULL RECORD AVAILABLE IN THIS COURT,
I WOULD NOT EXTEND THEM TO REACH THIS CASE, WHERE PETITIONER HAS FAILED
TO PRESERVE A FULL RECORD OF WHAT TRANSPIRED BELOW. 

THIS COURT EACH YEAR REVIEWS THOUSANDS OF CASES FROM THE STATE
COURTS, MANY OF WHICH, LIKE THIS ONE, ARE CHARACTERIZED BY LESS THAN
PERFECT RECORDS.  REVERSAL OF STATE COURT JUDGMENTS OF CONVICTION,
ESPECIALLY IN SUMMARY FASHION, WITHOUT ARGUMENT, SHOULD BE RESERVED FOR
PALPABLY CLEAR CASES OF CONSTITUTIONAL ERROR.  ADAMS V. UNITED STATES
EX REL. MCCANN, 317 U.S. 269 (1942); STROBLE V. CALIFORNIA, 343 U.S.
181 (1952).  SINCE HERE THE BASIS FOR THE COURT'S REVERSAL IS ITS OWN
HIGHLY SPECULATIVE JUDGMENT AS TO ESSENTIALLY FACTUAL MATTERS ON A
RECORD WHICH OFFERS NO MORE SUPPORT FOR PETITIONER THAN IT DOES FOR
RESPONDENT, I DISSENT. 

/1/  THERE IS NO INDICATION THAT PETITIONER WAS SO UNSOPHISTICATED
OR PERHAPS EVEN SO ILLITERATE AS TO BE UNAWARE THAT HIS LANGUAGE WAS
INAPPROPRIATE FOR A COURTROOM.  TO THE CONTRARY, PETITIONER'S
STATEMENTS IN THE COURTROOM, FOR EXAMPLE, "I THINK ME BEING ASKED TO
SPECULATE AS TO WHY SOMEONE WOULD JUMP ON ME FROM BEHIND IS NOT WITHIN
ANY KIND OF REALM OF PROSECUTION," INDICATE THAT HE WAS NOT A VICTIM OF
HIS OWN LACK OF AWARENESS OF THE DEMANDS OF THE SITUATION. 

/2/  IN ADDITION, SINCE I CONCLUDE THAT PETITIONER HEREIN COULD
CONSTITUTIONALLY BE PUNISHED FOR THE USE OF THE EXPLETIVE, CASES SUCH
AS STREET AND WILLIAMS ARE FOR ME INAPPOSITE, SINCE THEY DEALT WITH
SITUATIONS WHERE THE COURT FELT THAT CONVICTIONS MAY HAVE BEEN BASED ON
CONSTITUTIONALLY IMPERMISSIBLE ELEMENTS IN THE CHARGES OR IN THE
EVIDENCE. 
..END :

















STEFFEL V. THOMPSON, 415 U.S. 452 


       STEFFEL V. THOMPSON ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 72 - 5581.  ARGUED NOVEMBER 13, 1973--, DECIDED MARCH

           19, 1974; 459 F. 2D 919, REVERSED AND REMANDED. 


    PETITIONER, WHO HAD TWICE BEEN WARNED TO STOP HANDBILLING ON

  EXTERIOR SIDEWALK OF A SHOPPING CENTER AND THREATENED WITH ARREST

  BY POLICE IF HE FAILED TO DO SO, AND WHOSE COMPANION CONTINUED

  HANDBILLING AND WAS CHARGED WITH VIOLATING THE GEORGIA CRIMINAL

  TRESPASS LAW, BROUGHT AN ACTION FOR INJUNCTIVE AND DECLARATORY

  RELIEF IN THE DISTRICT COURT, CLAIMING THAT APPLICATION TO HIM OF

  THAT LAW WOULD VIOLATE HIS FIRST AND FOURTEENTH AMENDMENT

  RIGHTS.  THE DISTRICT COURT DISMISSED THE ACTION, FINDING THAT

"NO MEANINGFUL CONTENTION CAN BE MADE THAT THE STATE HAS (ACTED)

  OR WILL . . . ACT IN BAD FAITH," AND THEREFORE "THE RUDIMENTS OF

  AN ACTIVE CONTROVERSY BETWEEN THE PARTIES . . . (ARE) LACKING." 

  THE COURT OF APPEALS AFFIRMED, BEING OF THE VIEW THAT YOUNGER V.

  HARRIS, 401 U. S. 37, MADE IT CLEAR THAT IRREPARABLE INJURY MUST

  BE MEASURED BY BADFAITH HARASSMENT AND SUCH A TEST MUST BE

  APPLIED TO A REQUEST FOR INJUNCTIVE RELIEF AGAINST THREATENED, AS

  WELL AS PENDING, STATE COURT CRIMINAL PROSECUTION; AND THAT IT

 FOLLOWED FROM THE REASONING OF SAMUELS V. MACKELL, 401 U.S. 66,

  THAT THE SAME TEST OF BAD-FAITH HARASSMENT IS A PREREQUISITE FOR

  DECLARATORY RELIEF WITH RESPECT TO A THREATENED PROSECUTION. 

  HELD: 

     1.  THIS CASE PRESENTS AN "ACTUAL CONTROVERSY" UNDER ART. III

  OF THE CONSTITUTION AND THE FEDERAL DECLARATORY JUDGMENT ACT, THE

  ALLEGED THREATS OF PROSECUTION IN THE CIRCUMSTANCES ALLEGED NOT

  BEING "IMAGINARY OR SPECULATIVE" AND IT BEING UNNECESSARY FOR

  PETITIONER TO EXPOSE HIMSELF TO ACTUAL ARREST OR PROSECUTION TO

  MAKE HIS CONSTITUTIONAL CHALLENGE.  WHETHER THE CONTROVERSY

  REMAINS SUBSTANTIANL AND CONTINUING IN THE LIGHT OF THE EFFECT OF

  THE RECENT REDUCTION OF THE NATION'S ENVOLVEMENT IN VIETNAM ON

  PETITONER'S DESIRE TO ENGAGE IN THE HANDBILLING AT THE SHOPPING

  CENTER MUST BE RESOLVED BY THE DISTRICT COURT ON REMAND.  PP. 458

  - 460. 

     2.  FEDERAL DECLARATORY RELIEF IS NOT PRECLUDED WHEN A

  PROSECUTION BASED UPON AN AEERTEDLY UNCONSTITUTIONAL STATE

  STATUTE HAS BEEN THREATENED, BUT IS NOT PENDING, EVEN IF A

  SHOWING OF BAD-FAITH ENFORCEMENT OR OTHER SPECIAL CIRCUMSTANCES

  HAS NOT BEEN MADE.  PP. 460 - 473. 

     (A) WHEN NO STATE CRIMINAL PROCEEDING IS PENDING AT THE TIME

  THE FEDERAL COMPLAINT IS FILED, CONSIDERATIONS OF EQUITY, COMITY,

  AND FEDERALISM ON WHICH YOUNGER V. HARRIS, AND SAMUELS V. MACKELL

  BOTH SUPRA, WERE BASED, HAVE LITTLE VITALITY: FEDERAL

  INTERVENTION DOES NOT RESULT IN DUPLICATIVE LEGAL PROCEEDINGS OR

  DISRUPTION OF THE STATE CRIMINAL JUSTICE SYSTEM; NOR CAN FEDERAL

  INTERVENTION, IN THAT CIRCUMSTANCE, BE INTERPRETED AS REFLECTING

  NEGATIVELY UPON THE STATE COURTS' ABILITY TO ENFORCE

  CONSTITUTIONAL PRINCIPLES.  PP. 460 - 462. 

     (B) EVEN IF THE COURT OF APPEALS CORRECTLY VIEWED INJUNCTIVE

  RELIEF AS INAPPROPRIATE (A QUESTION NOT REACHED HERE, PETITIONER

  HAVING ABANDONED HIS REQUEST FOR THAT REMEDY), THE COURT ERRED IN

  TREATING THE REQUESTS FOR INJUNCTIVE AND DECLARATORY RELIEF AS A

  SINGLE ISSUE AND IN HOLDING THAT A FAILURE TO DEMONSTRATE

  IRREPARABLE INJURY PRECLUDED THE GRANTING OF DECLARATORY RELIEF. 

  CONGRESS PLAINLY INTENDED THAT A DECLARATORY JUDGMENT BE

  AVAILABLE AS A MILDER ALTERNATIVE THAN THE INJUNCTION TO TEST THE

  CONSTITUTIONALITY OF STATE CRIMINAL STATUTES.  PP. 462 - 473. 

     3.  IN DETERMINING WHETHER IT IS APPROPRIATE TO GRANT

  DECLARATORY RELIEF WHEN NO STATE CRIMINAL PROCEEDING IS PENDING,

  IT IS IMMATERIAL WHETHER THE ATTACK IS MADE ON THE

  CONSTITUTIOALITY OF A STATE CRIMINAL STATUTE ON ITS FACE OR AS

  APPLIED.  CAMERON V. JOHNSON, 390 U. S. 611, DISTINGUISHED.  PP.

  473 - 475. 

     BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

  STEWART, J., FILED A CONCURRING OPINION, IN WHICH BURGER, C. J.,

  JOINED, POST, P. 475.  WHITE, J., FILED A CONCURRING OPINION,

  POST, P. 476.  REHNQUIST, J., FILED A CONCURRING OPINION, IN

  WHICH BURGER, C.J., JOINED, POST, P. 478. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

WHEN A STATE CRIMINAL PROCEEDING UNDER A DISPUTED STATE CRIMINAL
STATUTE IS PENDING AGAINST A FEDERAL PLAINTIFF AT THE TIME HIS FEDERAL
COMPLAINT IS FILED, YOUNGER V. HARRIS, 401 U.S. 37 (1971), AND SAMUELS
V. MACKELL, 401 U.S. 66 (1971), HELD, RESPECTIVELY, THAT, UNLESS BAD
FAITH ENFORCEMENT OR OTHER SPECIAL CIRCUMSTANCES ARE DEMONSTRATED,
PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM PRECLUDE ISSUANCE OF A
FEDERAL INJUNCTION RESTRAINING ENFORCEMENT OF THE CRIMINAL STATTUE AND,
IN ALL BUT UNUSUAL CIRCUMSTANCES, A DECLARATORY JUDGMENT UPON THE
CONSTITUTIONALITY OF THE STATUTE.  THIS CASE PRESENTS THE IMPORTANT
QUESTION RESERVED IN SAMUELS V. MACKELL, ID., AT 73 - 74, WHETHER
DECLARATORY RELIEF IS PRECLUDED WHEN A STATE PROSECUTION HAS BEEN
THREATENED, BUT IS NOT PENDING, AND A SHOWING OF BAD-FAITH EMOFRCEMENT
OR OTHER SPECIAL CIRCUMSTANCES HAS NOT BEEN MADE. 

PETITIONER, AND OTHERS, FILED A COMPLAINT IN THE DISTRICT COURT FOR
THE NORTHERN DISTRICT OF GEORGIA, INVOKING THE CIVIL RIGHTS ACT OF
1871, 42 U.S.C. 1983, AND ITS JURISDICTIONAL IMPLEMENTATION, 28 U.S.C.
1343.  THE COMPLAINT REQUESTED A DECLARATORY JUDGMENT PURSUANT TO 28
U.S.C. 2201 - 2202, THAT GA. CODE ANN.  26 - 1503 (1972) /1/  WAS BEING
APPLIED IN VIOLATION OF PETITIONER'S FIRST AND FOURTEENTH AMENDMENT
RIGHTS, AND AN INJUNCTION RESTRAINING RESPONDENTS--THE SOLICITOR OF THE
CIVIL AND CRIMINAL COURT OF DEKALB COUNTY, THE CHIEF OF THE DEKALB
COUNTY POLICE, THE OWNER OF THE NORTH DE KALB SHOPPING CENTER, AND THE
MANAGER OF THAT SHOPPING CENTER-FROM ENFORCING THE STATUTE SO AS TO
INTERFERE WITH PETITIONER'S CONSTUTITIONLLY PROTECTED ACTIVITIES. 

THE PARTIES STIPULATED TO THE RELEVANT FACTS: ON OCTOBER 8, 1970,
WHILE PETITIONER AND OTHER INDIVIDUALS WERE DISTRIBUTING HANDBILLS
PROTESTING AMERICAN INVOLVEMENT IN VIETNAM ON AN EXTERIOR SIDEWALK OF
THE NORTH DEKALB SHOPPING CENTER, SHOPPING CENTER EMPLOYEES ASKED THEM
TO STOP HANDBILLING AND LEAVE.  /2/  THEY DECLINED TO DO SO, AND POLICE
OFFICERS WERE SUMMONED.  THE OFFICERS TOLD THEM THAT THEY WOULD BE
ARRESTED IF THEY DID NOT STOP HANDBILLING.  THE GROUP THEN LEFT TO
AVOID ARREST.  TWO DAYS LATER PETITOINER AND A COMPANION RETURNED TO
THE SHOPPING CENTER AND AGAIN BEGAN HANDBILLING.  THE MANAGER OF THE
CENTER CALLED THE POLICE, AND PETITIONER AND HIS COMPANION WERE ONCE
AGAIN TOLD THAT FAILURE TO STOP THEIR HANDBILLING WOULD RESULT IN THEIR
ARRESTS.  PETITIONER LEFT TO AVOID ARREST.  HIS COMPANION STAYED,
HOWEVER, CONTINUED HANDBILLING, AND WAS ARRESTED AND SUBSEQUENTLY
ARRAIGNED ON A CHARGE OF CRIMINAL TRESPASS IN VIOLATION OF 26 - 1503. 
/3/  PETITIONER ALLEDGED IN HIS COMPLAINT THAT, ALTHOUGH HE DESIRED TO
RETURN TO THE SHOPPING CENTER TO DISTRIBUTE HANDBILLS, HE HAD NOT DONE
SO BECAUSE OF HIS CONCERN THAT HE, TOO, WOULD BE ARRESTED FOR VIOLATION
OF 26 - 1503; THE PARTIES STIPULATED THAT, IF PETITIONER RETURNED AND
REFUSED UPON REQUEST TO STOP HANDBILLING, A WARRANT WOULD BE SWORN OUT
AND HE MIGHT BE ARRESTED AND CHARGED WITH A VIOLATION OF THE GEORGIA
STATUTE.  /4/ 

AFTER HEARING, THE DISTRICT COURT DENIED ALL RELIEF AND DISMISSED
THE ACTION, FINDING THAT "NO MEANINGFUL CONTENTION CAN BE MADE THAT THE
STATE HAS (ACTED) OR WILL IN THE FUTURE ACT IN BAD FAITH," AND
THEREFORE "THE RUDIMENTS OF AN ACTIVE CONTROVERSY BETWEEN THE PARTIES .
. . (ARE) LACKING."  334 F. SUPP. 1386, 1389 - 1390 (1971).  PETITIONER
APPEALED /5/  ONLY FROM THE DENIAL OF DECLARATORY RELIEF.  /6/  THE
COURT OF APPELAS FOR THE FIFTH CIRCUIT, ONE JUDGE CONCURRING IN THE
RESULT, AFFIRMED THE DISTRICT COURT'S JUDGMENT REFUSING DECLARATORY
RELIEF.  (1972).  THE COURT RECOGNIZED THAT THE HOLDINGS OF YOUNGER V.
HARRIS, 401 U.S. 37 (1971), AND SAMUELS V. MACKELL, 401 U.S. 66 (1971),
WERE EXPRESSLY LIMITED TO SITUATIONS WHERE STATE PROSECUTIONS WERE
PENDING WHEN THE FEDERAL ACTION COMMENCED, BUT WAS OF THE VIEW THAT
YOUNGER V. HARRIS "MADE IT CLEAR BEYOND PERADVENTURE THAT IRREPARABLE
INJURY MUST BE MEASURED BY BAD FAITH HARASSMENT AND SUCH TEST MUST BE
APPLIED TO A REQUEST FOR INJUNCTIVE RELIEF AGAINST THREATENED STATE
COURT CRIMINAL PROSECUTION" AS WELL AS AGAINST A PENDING PROSECUTION;
AND, FURTHERMORE, SINCE THE OPINION IN SAMUELS V. MACKELL REASONED THAT
DECLARATORY RELIEF WOULD NORMALLY DISRUPT THE STATE CRIMINAL JUSTICE
SYSTEM IN THE MANNER OF INJUNCTIVE RELIEF, IT FOLLOWED THAT "THE SAME
TEST OF BAD FAITH HARASSMENT IS PREREQUISITE . . . FOR DECLARATORY
RELIEF IN A THREATENED PROSECUTION."  459 F.2D, AT 922.  A PETITION FOR
REHEARING EN BANC WAS DENIED, THREE JUDGES DISSENTING.  463 F.2D 1338
(1972).  /8/ 

WE GRANTED CERTIORARI, 410 U.S. 953 (1973[, AND NOW REVERSE. 

I 

AT THE THRESHOLD WE MUST CONSIDER WHETHER PETITIONER PRESENTS AN
"ACTUAL CONTROVERSY," A REQUIREMENT IMPOSED BY ART. III OF THE
CONSTITUTION AND THE EXPRESS TERMS OF THE FEDERAL DECLARATORY JUDGMENT
ACT, 28 U.S.C. 2201.  /9/ 

UNLIKE THREE OF THE APPELLEES IN YOUNGER V. HARRIS, 401 U.S., AT 41,
PETITIONER HAS ALLEGED THREATS OF PROSECUTION THAT CANNOT BE
CHARACTERIZED AS "IMAGINARY OR SPECULATIVE,"  ID., AT 42.  HE HAS BEEN
TWICE WARNED TO STOP HANDBILLING THAT HE CLAIMS IS CONSTITUTIONALLY
PROTECTED AND HAS BEEN TOLD BY THE POLICE THAT IF HE AGAIN HANDBILLS AT
THE SHOPPING CENTER AND DISOBEYS A WARNING TO STOP HE WILL LIKELY BE
PROSECUTED.  THE PROSECUTION OF PETITIONER'S HANDBILLING COMPANION IS
AMPLE DEMONSTRATION THAT PETITIONER'S CONCERN WITH ARREST HAS NOT BEEN
"CHIMERICAL,"  POE V. ULMAN, 367 U.S. 497, 508 (1961).  IN THESE
CIRCUMSTANCES, IT IS NOT NECESSARY THAT PETITIONER FIRST EXPOSE HIMSELF
TO ACTUAL ARREST OR PROSECUTION TO BE ENTITLED TO CHALLENGE A STATUTE
THAT HE CLAIMS DETERS THE EXERCISE OF HIS CONSTITUTIONAL RIGHTS.  SEE,
E.G., EPPERSON V. ARKANSAS, 393 U.S. 97 (1968).  MOREOVER, PETITIONER'S
CHALLENGE IS TO THOSE SPECIFIC PROVISIONS OF STATE LAW WHICH HAVE
PROVIDED THE BASIS FOR THREATS OF CRIMINAL PROSECUTION AGAINST HIM. 
CF. BOYLE V. LANDRY, 401 U.S. 77, 81 (1971); WATSON V. BUCK, 313 U.S.
387, 399 - 400 (1941). 

NONETHELESS, THERE REMAINS A QUESTION AS TO THE CONTINUING EXISTENCE
OF A LIVE AND ACUTE CONTROVERSY THAT MUST BE RESOLVED ON THE REMAND WE
ORDER TODAY.  /10/  IN GOLDEN V. ZWICKLER, 394 U.S. 103 (1969), THE
APPELLEE SOUGHT A DECLARATORY JUDGMENT THAT A STATE CRIMINAL STATUTE
PROHIBITING THE DISTRIBUTION OF ANONYMOUS ELECTION-CAMPAIGN LITERATURE
WAS UNCONSTITUTIONAL.  THE APPELLEE'S COMPLAINT HAD EXPRESSED A DESIRE
TO DISTRIBUTE HANDBILLS DURING THE FORTHCOMING RE-ELECTION CAMPAIGN OF
A CONGRESSMAN, BUT IT WAS LATER LEARNED THAT THE CONGRESSMAN HAD
RETIRED FROM THE HOUSE OF REPRESENTATIVES TO BECOME A NEW YORK SUPREME
COURT JUSTICE.  IN THAT CIRCUMSTANCE, WE FOUND NO EXTANT CONTROVERSY,
SINCE THE RECORD REVEALED THAT APPELLEE'S SOLE TARGET OF DISTRIBUTION
HAD BEEN THE CONGRESSMAN AND THERE WAS NO IMMEDIATE PROSPECT OF THE
CONGRESSMAN'S AGAIN BECOMING A CANDIATE FOR PUBLIC OFFICE.  HERE,
PETITIONER'S COMPLAINT INDICATES THAT HIS HANDBILLING ACTIVITIES WERE
DIRECTED "AGAINST THE WAR IN VIETNAM AND THE UNITED STATES' FOREIGN
POLICY IN SOUTHEAST ASIA."  SINCE WE CANNOT IGNORE THE RECENT
DEVELOPMENTS REDUCING THE NATION'S INVOLVEMENT IN THAT PART OF THE
WORLD, IT WILL BE FOR THE DISTRICT COURT ON REMAND TO DETERMINE IF
SUBSEQUENT EVENTS HAVE SO ALTERED PETITIONER'S DESIRE TO ENGAGE IN
HANDBILLING AT THE SHOPPING CENTER THAT IT CAN NO LONGER BE SAID THAT
THIS CASE PRESENTS "A SUBSTANTIAL CONTROVERSY, BETWEEN PARTIES HAVING
ADVERSE LEGAL INTERESTS, OF SUFFICIENT IMMEDIACY AND REALITY TO WARRANT
THE ISSUANCE OF A DECLARATORY JUDGMENT."  MARYLAND CASUALTY CO. V.
PACIFIC COAL & OIL CO., 312 U.S. 270, 273 (1941); SEE ZWICKLER V.
KOOTA, 389 U.S. 241, 244 N. 3 (1967). 

        II 

WE NOW TURN TO THE QUESTION OF WHETHER THE DISTRICT COURT AND THE
COURT OF APPELAS CORRECTLY FOUND PETITONER'S REQUEST FOR DECLARATORY
RELIEF INAPPROPRIATE. 

SENSITIVE TO PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM, WE
RECOGNIZED IN YOUNGER V. HARRIS, SUPRA, THAT FEDERAL COURTS SHOULD
ORDINARILY REFRAIN FROM ENJOINING ONGOING STATE CRIMINAL PROSECUTIONS. 
WE WERE COGNIZANT THAT A PENDING STATE PROCEEDING, IN ALL BUT UNUSUAL
CASES, WOULD PROVIDE THE FEDERAL PLAINTIFF WITH THE NECESSARY VEHICLE
FOR VINDICATING HIS CONSTITUTIONAL RIGHTS, AND, IN THAT CIRCUMSTANCE,
THE RESTRAINING OF AN ONGOING PROSECUTION WOULD ENTAIL AN UNSEEEMLY
FAILURE TO GIVE EFFECT TO THE PRINCIPLE THAT STATE COURTS HAVE THE
SOLEMN RESPONSIBILITY, EQUALLY WITH THE FEDERAL COURTS "TO GUARD,
ENFORCE, AND PROTECT EVERY RIGHT GRANTED OR SECURED BY THE CONSTITUTION
OF THE UNITED STATES . . . ."  ROBB V. CONNOLLY, 111 U.S. 624, 637
(1884).  IN SAMUELS V. MACKELL, SUPRA, THE COURT ALSO FOUND THAT THE
SAME PRINCIPLES ORDINARILY WOULD BE FLOUTED BY ISSUANCE OF A FEDERAL
DECLARATORY JUDGMENT WHEN A STATE PROCEEDING WAS PENDING, SINCE THE
INSTURSIVE EFFECT OF DECLARATORY RELIEF "WILL RESULT IN PRECISELY THE
SAME INTERFERENCE WITH AND DISRUPTION OF STATE PROCEEDINGS THAT THE
LONG-STANDING POLICY LIMITING INJUNCTIONS WAS DESIGNED TO AVOID."  401
U.S., AT 72.  /11/  WE THEREFORE HELD IN SAMUELS THAT, "IN CASES WHERE
THE STATE CRIMINAL PROSECUTION WAS BEGUN PRIOR TO THE FEDERAL SUIT, THE
SAME EQUITABLE PRINCIPLES RELEVANT TO THE PROPRIETY OF AN INJUNCTION
MUST BE TAKEN INTO CONSIDERATION BY FEDERAL DISTRICT COURTS IN
DETERMINING WHETHER TO ISSUE A DECLARATORY JUDGMENT ...."  ID., AT 73. 

NEITHER YOUNGER NOR SAMUELS, HOWEVER, DECIDED THE QUESTION WHETHER
FEDERAL INTERVENTION MIGHT BE PERMISSIBLE IN THE ABSENCE OF A PENDING
STATE PROSECUTION.  IN YOUNGER, THE COURT SAID: 

" WE EXPRESS NO VIEW ABOUT THE CIRCUMSTANCES UNDER WHICH FEDERAL
COURTS MAY ACT WHEN THERE IS NO PROSECUTION PENDING IN STATE COURTS AT
THE TIME THE FEDERAL PROCEEDING IS BEGUN."  401 U.S., AT 41.  SEE ALSO
ID., AT 55 (STEWART AND HARLAN, JJ., CONCURRING); ID., AT 57 (BRENNAN,
WHITE, AND MARSHALL, JJ., CONCURRING).  SIMILARLY, IN SAMUELS V.
MACKELL, THE COURT STATED:

  WE, OF COURSE, EXPRESS NO VIEWS ON THE PROPRIETY OF DECLARATORY
RELIEF WHEN NO STATE

  PROCEEDING IS PENDING AT THE TIME THE FEDERAL SUIT IS BEGUN." 
401 U.S., AT 73 - 74.  SEE ALSO ID., AT 55 (STEWART AND HARLAN, JJ.,
CONCURRING); ID., AT 75 - 76 (BRENNAN, WHITE, AND MARSHALL, JJ.,
CONCURRING). 

THESE RESERVATIONS ANTICIPATED THE COURT'S RECOGNITION THAT THE
RELEVANT PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM "HAVE LITTLE
FORCE IN THE ABSENCE OF A PENDING STATE PROCEEDING."  LAKE CARRIERS'
ASSN. V. MACMULLAN, 406 U.S. 498, 509 (1972).  WHEN NO STATE CRIMINAL
PROCEEDING IS PENDING AT THE TIME THE FEDERAL COMPLAINT IS FILED,
FEDERAL INTERVENTION DOES NOT RESULT IN DUPLICATIVE LEGAL PROCEEDINGS
OR DISRUPTION OF THE STATE CRIMINAL JUSTICE SYSTEM; NOR CAN FEDERAL
INTERVENTION, IN THAT CIRCUMSTANCE, BE INTERPRETED AS REFLECTING
NEGATIVELY UPON THE STATE COURT'S ABILITY TO ENFORCE CONSTITUTIONAL
PRINCIPLES.  IN ADDITION, WHILE A PENDING STATE PROSECUTION PROVIDES
THE FEDERAL PLAINTIFF WITH A CONCRETE OPPORTUNITY TO VINDICATE HIS
CONSTITUTIONAL RIGHTS, A REFUSAL ON THE PART OF THE FEDERAL COURTS TO
INTERVENE WHEN NO STATE PROCEEDING IS PENDING MAY PLACE THE HAPLESS
PLAINTIFF BETWEEN THE SCYLLA OF INTENTIONALLY FLOUTING STATE LAW AND
THE CHARYBDIS OF FORGOING WHAT HE BELIEVES TO BE CONSTITUTIONALLY
PROTECTED ACTIVITY IN ORDER TO AVOID BECOMING ENMESHED IN A CRIMINAL
PROCEEDING.  CF. DOMBROWSKI V. PFISTER, 380 U.S. 479, 490 (1965). 

WHEN NO STATE PROCEEDING IS PENDING AND THUS CONSIDERATIONS OF
EQUITY, COMITY, AND FEDERSLISM HAVE LITTLE VITIALITY, THE PROPRIETY OF
GRANTING FEDERAL DECLARATORY RELIEF MAY PROPERLY BE CONSIDERED
INDEPENDENTLY OF A REQUEST FOR INJUNCTIVE RELIEF.  HERE, THE COURT OF
APPEALS HELD THAT, BECAUSE INJUNCTIVE RELIEF WOULD NOT BE APPROPRIATE
SINCE PETITIONER FAILED TO DEMONSTRATE IRREPARABLE INJURY-, A
TRADITIONAL PREREQUISITE TO INJUNCTIVE RELIEF, E.G., DOMBROWSKI V.
PFISTER, SUPRA--, IT FOLLOWED THAT DECLARATORY RELIEF WAS ALSO
INAPPROPRIATE.  EVEN IF THE COURT OF APPELAS CORRECTLY VIEWED
INJUNCTIVE RELIEF AS INAPPROPRIATE--, A QUESTION WE NEED NOT REACH
TODAY SINCE PETITIONER HAS ABANDONED HIS REQUEST FOR THAT REMEDY, SEE
N. 6 SUPRA--, /12/  THE COURT ERRED IN TREATING THE REQUESTS FOR
INJUNCTIVE AND DECLARATORY RELIEF AS A SINGLE ISSUE.  (WHEN NO STATE
PROSECUTION IS PENDING AND THE ONLY QUESTION IS WHETHER DECLARATORY
RELIEF IS APPROPRIATE(,) . . . THE CONGRESSIONAL SCHEME THAT MAKES THE
FEDERAL COURTS THE PRIMARY GUARDIANS OF CONSTITUTIONAL RIGHTS, AND THE
EXPRESS CONGRESSIONAL AUTHORIZATION OF DECLARATORY RELIEF, AFFORDED
BECAUSE IT IS A LESS HARSH AND ABRASIVE REMEDY THAN THE INJUNCTION,
BECOME THE FACTORS OF PRIMARY SIGNIFICANCE."  PEREZ V. LEDESMA, 401
U.S. 82, 104 (1971) (SEPARATE OPINION OF BRENNAN, J.). 

THE SUBJECT MATTER JURISDICTION OF THE LOWER FEDERAL COURTS WAS
GREATLY EXPANDED IN THE WAKE OF THE CIVIL WAR.  A PERVASIVE SENSE OF
NATIONALISM LED TO ENACTMENT OF THE CIVIL RIGHTS ACT OF 1871, 17 STAT.
13, EMPOWERING THE LOWER FEDERAL COURTS TO DETERMINE THE
CONSTITUTIONALITY OF ACTIONS, TAKEN BY PERSONS UNDER COLOR OF STATE
LAW, ALLEGEDLY DEPRIVING OTHER INDIVIDUALS OF RIGHTS GUARANTEED BY THE
CONSTITUTION AND FEDERAL LAW, SEE 42 U.S.C. 1983, 28 U.S.C. 1343 (3). 
/13/  FOUR YEARS LATER, IN THE JUDICIARY ACT OF MARCH 3, 1875, 18 STAT.
470, CONGRESS CONFERRED UPON THE LOWER FEDERAL COURTS, FOR BUT THE
SECOND TIME IN THEIR NEARLY CENTURY-OLD HISTORY, GENERAL FEDERAL
QUESTION JURISDICTION SUBJECT ONLY TO A JURISDICTIONAL-AMOUNT
REQUIREMENT, SEE 28 U.S.C. 1331.  /14/  WITH THIS LATTER ENACTMENT, THE
LOWER FEDERAL COURTS "CEASED TO BE RESTRICTED TRIBUNALS OF FAIR DEALING
BETWEEN CITIZENS OF DIFFERENT STATES AND BECAME THE PRIMARY AND
POWERFUL RELIANCES FOR VINDICATING EVERY RIGHT GIVEN BY THE
CONSTITUTION, THE LAWS, AND TREATIES OF THE UNITED STATES."  F.
FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT 65 (1928)
(EMPHASIS ADDED).  /15/  THESE TWO STATUTES, TOGETHER WITH THE COURT'S
DECISION IN EX PARTE YOUNG, 209 U.S. 123 (1908)--, HOLDING THAT STATE
OFFICIALS WHO THREATEN TO ENFORCE AN UNCONSTITUTIONAL STATE STATUTE MAY
BE ENJOINED BY A FEDERAL COURT OF EQUITY AND THAT A FEDERAL COURT MAY,
IN APPROPRIATE CIRCUMSTANCES ENJOIN FUTURE STATE CRIMINAL PROSECUTIONS
UNDER THE UNCONSTITUTIONAL ACT--, HAVE "ESTABLISHED THE MODERN
FRAMEWORK FOR FEDERAL PROTECTION OF CONSTITUTIONAL RIGHTS FROM STATE
INTERFERENCE."  PEREZ V. LEDESMA,, SUPRA, AT 107 (SEPARATE OPINION OF
BRENNAN, J.). 

A "STORM OF CONTROVERSY" RAGED IN THE WAKE OF EX PARTE YOUNG,
FOCUSING PRINCIPALLY ON THE POWER OF A SINGLE FEDERAL JUDGE TO GRANT EX
PARTE INTERLOCUTORY INJUNCTIONS AGAINST THE ENFORCEMENT OF STATE
STATUTES, H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 967 (2D ED. 1973); SEE GENERALLY GOLDSTEIN V. COX, 396 U.S. 471
(1970); HUTCHESON, A CASE FOR THREE JUDGES, 47 HARV. L. REV. 795, 804 -
805 (1934).  THIS UPROAR WAS ONLY PARTIALLY QUELLED BY CONGRESS'
PASSAGE OF LEGISLATION, 36 STAT. 557, REAUIRING THE CONVENING OF A
THREE-JUDGE DISTRICT COURT /16/  BEFORE A PRELIMINARY INJUNCTION
AGAINST ENFORCEMENT OF A STATE STATUTE COULD ISSUE, AND PROVIDING FOR
DIRECT APPEAL TO THIS COURT FROM A DECISION GRANTING OR DENYING SUCH
RELIEF.  /17/  SEE 28 U.S.C. 2281, 1253.  FROM A STATE'S VIEWPOINT THE
GRANTING OF INJUNCITIVE RELIEF--, EVEN BY THESE COURTS OF SPECIAL
DIGNITY--, "RATHER CLUMSILY" CRIPPLED STATE ENFORCEMENT OF ITS STATUTES
PENDING FURTHER REVIEW, SEE H.R. REP. NO. 228, 73TH CONG., 1ST SESS., 2
(1928); H.R. REP. NO. 94, 71ST CONG., 2D SESS., 2 (1929); H.R. REP. NO.
627, 72D CONG., 1ST SESS., 2 (1932).  FURTHERMORE, PLAINTIFFS WERE
DISSATISFIED WITH THIS METHOD OF TESTING THE CONSTITUTIONALITY OF STATE
STATUTES, SINCE IT PLACED UPON THEM THE BURDEN OF DEMONSTRATING THE
TRADITIONAL PREREQUISITES TO EQUITABLE RELIEF--, MOST IMPORTANTLY,
IRREPARABLE INJURY.  SEE, E.G., FENNER V. BOYKIN, 271 U.S. 240, 243
(1926). 

TO DISPEL THESE DIFFICULITIES, CONGRESS IN 1934 ENACTED THE
DECLARATORY JUDGMENT ACT, 28 U.S.C. 2201 - 2202.  THAT CONGRESS PLAINLY
INTENDED DECLARATORY RELIEF TO ACT AS AN ALTERNATIVE TO THE STRONG
MEDICINE OF THE INJUNCTION AND TO BE UTILIZED TO TEST THE
CONSTITUTIONALITY OF STATE CRIMINAL STATUTES IN CASES WHERE INJUNCTIVE
RELIEF WOULD BE UNAVAILABLE IS AMPLY EVIDENCED BY THE LEGISLATIVE
HISTORY OF THE ACT, TRACED IN FULL DETAIL IN PEREZ V. LEDESMA, SUPRA,
AT 111 - 115 (SEPARATE OPINION OF BRENNAN, J.).  THE HIGHLIGHTS OF THAT
HISTORY, PARTICULARLY PERTINENT TO OUR INQUIRY TODAY, EMPHASIZE THAT:

  (IN 19348 WITHOUT EXPANDING OR REDUCING THE SUBJECT MATTER
JURISDICTION OF THE FEDERAL

COURTS, OR IN ANY WAY DIMINISHING THE CONTINUING VATIALITY OF EX
PARTE YOUNG WITH RESPECT TO

  FEDERAL INJUNCTIONS, CONGRESS EMPOWERED THE FEDERAL COURTS TO
GRANT A NEW REMEDY, THE

  DECLARATORY JUDGMENT.  . . . 

     THE EXPRESS PURPOSE OF THE FEDERAL DECLARATORY JUDGMENT ACT
WAS

  TO PROVIDE A MILDER ALTERNATIVE TO THE INJUNCITON REMEDY.  . . .

OF PARTICULAR SIGNIFICANCE ON THE QUESTION BEFORE US, THE SENATE

  REPORT S. REP. NO. 1005, 73D CONG., 2D SESS. (1934)) MAKES IT

  EVEN CLEARER THAT THE DECLARATORY JUDGMENT WAS DESIGNED TO BE

  AVAILABLE TO TEST STATE CRIMINAL STATUTES IN CIRCUMSTANCES WHERE

  AN INJUNCTION WOULD NOT BE APPROPRIATE.  . . .

        *         *         *         *     *

  MUCH OF THE HOSTILITY TO FEDERAL INJUNCTIONS REFERRED TO IN THE
SENATE REPORT WAS HOSTILITY TO

  THEIR USE AGANIST STATE OFFICIALS SEEKING TO ENFORCE STATE
REGULATORY STATUTES CARRYING

  CRIMINAL SANCTIONS; THIS WAS THE STRONG FEELING THAT PRODUCED THE
THREE-JUDGE COURT ACT IN

  1910, THE JOHNSON ACT OF 1934, 28 U.S.C. 1342, AND THE TAX
INJUNCTION ACT OF 1937, 28

  U.S.C. 1341.  THE FEDERAL DECLARATORY JUDGMENT ACT WAS INTENDED
TO PROVIDE AN ALTERNATIVE TO

  INJUNCTIONS AGAINST STATE OFFICIALS, EXCEPT WHERE THERE WAS A
FEDERAL POLICY AGAINST FEDERAL

  ADJUDICATION OF THE CLASS OF LITIGATION ALTOGETHER.  . .
MOREOVER, THE SENATE REPORT'S CLEAR

  IMPLICATION THAT DECLARATORY RELIEF WOULD HAVE BEEN APPROPRIATE
IN PIERCE V. SOCIETY OF

  SISTERS, 268 U.S. 510 (1925), AND VILLAGE OF EUCLID V. AMBLER
REALTY CO., 272 U.S. 365 (1926),

  BOTH CASES INVOLVING FEDERAL ADJUDICATION OF THE
CONSTITUTIONALITY OF A STATE STATUTE CARRYING

  CRIMINAL PENALITIES, AND THE REPORT'S QUOTATION FROM TERRACE V.
THOMPSON, WHICH ALSO INVOLVED

  ANTICIPATORY FEDERAL ADJUDICATION OF THE CONSTITUTIONALITY OF A
STATE CRIMINAL STATUTE, MAKE

 IT PLAIN THAT CONGRESS ANTICIPATED THAT THE DECLARATORY JUDGMENT
PROCEDURE WOULD BE USED BY

  THE FEDERAL COURTS TO TEST THE CONSTITUTIONALITY OF STATE
CRIMINAL STATUTES."  ID., AT 111 -

  112, 115.  /18/ 

IT WAS THIS HISTORY THAT FORMED THE BACKDROP TO OUR DECISION IN
ZWICKLER V. KOOTA, 389 U.S. 241 (1967), WHERE A STATE CRIMINAL STATUTE
WAS ATTACKED ON GROUNDS OF UNCONSTITUTOINAL OVERBREADTH AND NO STATE
PROSECUTION WAS PENDING AGAISNT THE FEDERAL PLAINTIFF.  THERE, WE FOUND
ERROR IN A THREE-JUDGE DISTRICT COURT'S CONSIDERING, AS A SINGLE
QUESTION, THE PROPRIETY OF GRANTING INJUNCTIVE AND DECLARATORY RELIEF. 
ALTHOUGH WE NOTED THAT INJUNCTIVE RELIEF MIGHT WELL BE UNAVALIABLE
UNDER PRINCIPLES OF EQUITY JURISPRUDENCE CANVASSED IN DOUGLAS V. CITY
OF JEANNETTE, 319 U.S. 157 (1943), WE HELD THAT "A FEDERAL DISTRICT
COURT HAS THE DUTY TO DECIDE THE APPROPRIATENESS AND THE MERITS OF THE
DECLARATORY REQUEST IRRESPECTIVE OF ITS CONCLUSION AS TO THE PROPRIETY
OF THE ISSUANCE OF THE INJUNCTION."  389 U.S., AT 254.  ONLY ONE YEAR
AGO, WE REAFFIEMED THE ZWICKLER V. KOOTA HOLDING IN ROE V. WADE, 410
U.S. 113 (1973), AND DOE V. BOLTON, 410 U.S. 179 (1973).  IN THOSE TWO
CASES, WE DECLINED TO DECIDE WHETHER THE DISTRICT COURTS HAD PROPERLY
DENIED TO THE FEDERAL PLAINTIFFS, AGAINST WHOM NO PROSECUTIONS WERE
PENDING, INJUNCTIVE RELIEF RESTRAINING ENFORCEMENT OF THE TEXAS AND
GEORGIA CRIMIANL ABORTION STATUTES; INSTEAD, WE AFFIRMED THE ISSUANCE
OF DECLARATORY JUDGMENTS OF UNCONSTITUTIONALITY, ANTICIPATING THAT
THESE WOULD BE GIVEN EFFECT BY STATE AUTHORITIES.  WE SAID: 

"THE COURT HAS RECOGNIZED THAT DIFFERENT CONSIDERATIONS ENTER INTO A
FEDERAL COURT'S DECISION AS TO DECLARATORY RELIEF, ON THE ONE HAND, AND
INJUNCTIVE RELIEF, ON THE OTHER.  ZWICKLER V. KOOTA, 389 U.S. 241, 252
255 (1967); DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965)."  ROE V. WADE,
SUPRA, AT 166 (EMPHASIS ADDED).  SEE DOE V. BOLTON, SUPRA, AT 201. 

THE "DIFFERENT CONSIDERATIONS" ENTERING INTO A DECISION WHETHER TO
GRANT DECLARATORY RELIEF HAVE THEIR ORIGINS IN THE PRECEDING HISTORICAL
SUMMARY.  FIRST, AS CONGRESS RECOGNIZED IN 1934, A DECLARATORY JUDGMENT
WILL HAVE A LESS INTRUSIVE EFFECT ON THE ADMINISTRATION OF STATE
CRIMINAL LAWS.  AS WAS OBSERVED IN PEREZ V. LEDESMA, 401 U.S., AT 124 -
126 (SEPARATE OPINION OF BRENNAN, J.): 

     OF COURSE, A FAVORABLE DECLARATORY JUDGMENT MAY NEVERTHELESS
BE

  VALUABLE TO THE PLAINTIFF THOUGH IT CANNOT MAKE EVEN AN

  UNCONSTITUTIONAL STATUTE DISAPPEAR.  A STATE STATUTE MAY BE

  DECLARED UNCONSTITUTIONAL IN TOTO--, THAT IS, INCAPABLE OF HAVING

  CONSTITUTIONAL APPLICATIONS; OR IT MAY BE DECLARED

  UNCONSTITUTIONALLY VAGUE OR OVERBOARD--, THAT IS, INCAPABLE OF

  BEING CONSTITUTIONALLY APPLIED TO THE FULL EXTENT OF ITS

  PURPORT.  IN EITHER CASE, A FEDERAL DECLARATION OF

  UNCONSTITUTIONALITY REFLECTS THE OPINION OF THE FEDERAL COURT

  THAT THE STATUTE CANNOT BE FULLY ENFORCED.  IF A DECLARATION OF

  TOTAL UNCONSTITUTIONALITY IS AFFIRMED BY THIS COURT, IT FOLLOWS

  THAT THIS COURT STANDS READY TO REVERSE ANY CONVICTION UNDER THE

  STATUTE.  IF A DECLARATION OF PARTIAL UNCONSTITUTIONALITY IS

  AFFIRMED BY THIS COURT, THE IMPLICATION IS THAT THIS COURT WILL

  OVERTURN PARTICULAR APPLICATIONS OF THE STATUTE, BUT THAT IF THE

  STATUTE IS NARROWLY CONSTRUED BY THE STATE COURTS IT WILL NOT BE

  INCAPABLE OF CONSTITUTIONAL APPLICATONS.  ACCORDINGLY, THE

  DECLARATION DOES NOT NECESSARILY BAR PROSECUTIONS UNDER THE

  STATUTE, AS A BROAD INJUNCTION WOULD.  THUS, WHERE THE HIGHEST

  COURT OF A STATE HAS HAD AN OPPORTUNITY TO GIVE A STATUTE

  REGULATING EXPRESSION A NARROWING OR CLARIGYING CONSTRUCTION BUT

  HAS FAILED TO DO SO, AND LATER A FEDERAL COURT DECLARES THE

  STATUE UNCONSTITUTIONALLY VAGUE OR OVERBROAD, IT MAY WELL BE OPEN

  TO A STATE PROSECUTOR, AFTER THE FEDERAL COURT DECISION, TO BRING

  A PROSECUTION UNDER THE STATUTE IF HE REASONABLY BELIEVES THAT

  THE DEFENDANTS'S CONDUCT IS NOT CONSTITUTIONALLY PROTECTED AND

  THAT THE STATE COURTS MAY GIVE THE STATUTE A CONSTRUCTION SO AS

  TO YIELD A CONSTITUTIONALLY VALID CONVICTION.  EVEN WHERE A

  DECLARATION OF UNCONSTITUTIONALITY IS NOT REVIEWED BY THIS COURT,

 THE DECLARATON MAY STILL BE ABLE TO CUT DOWN THE DETERRENT EFFECT

  OF AN UNCONSTITUTIONAL STATE STATUTE.  THE PERSUASIVE FORCE OF

  THE COURT'S OPINION AND JUDGMENT MAY LEAD STATE PROSECUTORS,

  COURTS, AND LEGISLATORS TO RECONSIDER THEIR RESPECTIVE

  RESPONSIBILITIES TOWARD THE STATUTE.  ENFORCEMENT POLICIES OR

  JUDICIAL CONSTRUCTION MAY BE CHANGED, OR THE LEGISLATURE MAY

  REPEAL THE STATUTE AND START ANEW.  FINALLY, THE FEDERAL COURT

  JUDGMENT MAY HAVE SOME RES JUDICATA EFFECT, THOUGH THIS POINT IS

  NOT FREE FROM DIFFICULTY AND THE GOVERNING RULES REMAIN TO BE

  DEVELOPED WITH VIEW TO THE PROPER WORKINGS OF A FEDERAL SYSTEM. 

 WHAT IS CLEAR, HOWEVER, IS THAT EVEN THOUGH A DECLARATORY

  JUDGMENT HAS 'THE FORCE AND EFFECT OF A FINAL JUDGMENT,' 28

  U.S.C. 2201, IT IS A MUCH MILDER FORM OF RELIEF THAN AN

  INJUNCTION.  THOUGH IT MAY BE PERSUASIVE, IT IS NOT ULTIMATLEY

  COERCIVE; NONCOMPLIANCE WITH IT MAY BE INAPPROPRIATE, BUT IS NOT

  CONTEMPT."  /19/ 

SECOND, ENGRAFTING UPON THE DECLARATORY JUDGMENT ACT A REQUIREMENT
THAT ALL OF THE TRADITIONAL EQUITABLE PREREQUISITES TO THE ISSUANCE OF
AN INJUCTION BE SATISFIED BEFORE THE ISSUANCE OF A DECLARATORY JUDGMENT
IS CONSIDERED WOULD DEFY CONGRESS' INTENT TO MAKE DECLARATORY RELIEF
AVAILABLE IN CASES WHERE AN INJUNCTION WOULD BE INAPPROPRIATE. 

"WERE THE LAW TO BE THAT A PLAINTIFF COULD NOT OBTAIN A DECLARATORY
JUDGMENT THAT A LOCAL ORDINANCE WAS UNCONSTITUTIONAL WHEN NO STATE
PROSECUTION IS PENDING UNLESS HE COULD ALLEGE AND PROVE CIRCUMSTANCES
JUSTIFYING A FEDERAL INJUNCTION OF AN EXISTING STATE PROSECUTION, THE
FEDERAL DECLARATORY JUDGMENT ACT WOULD HAVE BEEN PRO TANTO REPEALED." 
WULP V. CORCORAN, 454 F. 2D 826, 832 (CA1 1972) (COFFIN, J.).  SEE
PEREZ V. LEDESMA, 401 U.S., AT 116 (SEPARATE OPINION OF BRENNAN, J.). 
THUS, THE COURT OF APPELAS WAS IN ERROR WHEN IT RULED THAT A FAILURE TO
DEMONSTRATE IRREPARABLE INJURY--, A TRADITIONAL REQUISITE TO INJUNCTIVE
RELIEF, HAVING NO EQUIVALENT IN THE LAW OF DECLARATORY JUDGMENTS, SEE
AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 241 (1937); NASHVILLE, C.
& ST. L. R. CO. V. WALLACE, 288 U.S. 249, 264 (1933)--, PRECLUDED THE
GRANTING OF DECLARATORY RELIEF. 

THE ONLY OCCASIONS WHERE THIS COURT HAS DISREGARDED THESE "DIFFERENT
CONSIDERATIONS" AND FOUND THAT A PRECLUSION OF INJUNCTIVE RELIEF
INEVITABLY LED TO A DENIAL OF DECLARATORY RELIEF HAVE BEEN CASES IN
WHICH PRINCIPLES OF FEDERALISM MILITATED ALTOGETHR AGAINST FEDERAL
INTERVENTION IN A CLASS OF ADJUDICATIONS.  SEE GREAT LAKES CO. V.
HUFFMAN, 319 U.S. 293 (1943) (FEDERAL POLICY AGAINST INTERFERING WITH
THE ENFORCEMENT OF STATE TAX LAWS); /20/  SAMUELS V. MACKELL, 401 U.S.
66 (1971).  IN THE INSTANT CASE, PRINCIPLES OF FEDERALISM NOT ONLY DO
NOT PRECLUDE FEDERAL INTERVENTION, THEY COMPEL IT.  REQUIRING THE
FEDERAL COURTS TOTALLY TO STEP ASIDE WHEN NO STATE CRIMINAL PROSECUTION
IS PENDING AGAINST THE FEDERAL PLAINTIFF WOULD TURN FEDERALISM ON ITS
HEAD.  WHEN FEDERAL CLAIMS ARE PREMISED ON 42 U.S.C. 1983 AND 28 U.S.C.
1343 (3)--, AS THEY ARE HERE--, WE HAVE NOT REQUIED EXHAUSTION OF STATE
JUDICIAL OR ADMINISTRATIVE REMEDIES, RECOGNIZING THE PARAMOUNT ROLE
CONGRESS HAS ASSIGNED TO THE REDERAL COURTS TO PROTECT CONSTITUTIONAL
RIGHTS.  SEE, E.G., MC NEESE V. BOARD OF EDUCATION, 373 U.S. 668
(1963); MONROE V. PAPE, 365 U.S. 167 (1961).  BUT EXHAUSTION OF STATE
REMEDIES IS PRECISELY WHAT WOULD BE REQUIRED IF BOTH FEDERAL INJUNCITVE
AND DECLARATORY RELIEF WERE UNAVAILABLE IN A CASE WHERE NO STATE
PROSECUTION HAD BEEN COMMENCED. 

        III 

RESPONDENTS, HOWEVER, RELYING PRINCIPALLY UPON OUR DECISION IN
CAMERON V. JOHNSON, 390 U.S. 611 (1968), ARGUE THAT, ALTHOUGH IT MAY BE
APPROPRIATE TO ISSUE A DECLAATORY JUDGMENT WHEN NO STATE CRIMINAL
PROCEEDING IS PENDING AND THE ATTACK IS UPON THE FACIAL VALIDITY OF A
STATE CRIMINAL STATUTE, SUCH A STEP WOULD BE IMPROPER WHERE, AS HERE,
THE ATTACK IS MERELY UPON THE CONSTITUTIONALITY OF THE STATUTE AS
APPLIED, SINCE THE STATE'S INTEREST IN UNENCUMBERED ENFORCEMENT OF ITS
LAWS OUTWEIGHS THE MINIMAL FEDERAL INTEREST IN PROTECTING THE
CONSTITUTIONAL RIGHTS OF ONLY A SINGLE INDIVIDUAL.  WE REJECT THE
ARGUEMENT.     IN CAMERON V. JOHNSON, THE APPELLANTS SOUGHT A
DECLARATORY JUDGMENT THAT A MISSISSIPPI ANTI-PICKETING LAW WAS AN
OVERLY BROAD AND VAGUE REGULATION OF PROTECTED EXPRESSION AND AN
INJUNCTION RESTRAINING PENDING PROSECUTIONS AGAINST THEM FOR VIOLATIONS
OF THE STATUTE.  WE AGREED WITH THE DISTRICT COURT THAT THE STATUTE WAS
NOT OVERLY BROAD OR VAGUE AND THAT NOTHING IN THE RECORD SUPPORTED
APPELLANTS' ASSERTION THAT THEY WERE BEING PROSECUTED IN BAD FAITH.  IN
THAT CIRCUMSTANCE, WE HELD THAT "(THE MERE POSSIBILITY OF ERRONEOUS
APPLICATION OF THE STATUTE DOES NOT AMOUNT 'TO THE IRREPARABLE INJURY
NECESSARY TO JUSTIFY A DISRUPTION OF ORDERLY STATE PROCEEDINGS.'  . . .
THE ISSUE OF GUILT OR INNOCENCE IS FOR THE STATE COURT AT THE CRIMINAL
TRIAL; THE STATE WAS NOT REQUIRED TO PROVE APPELLANTS GUILTY IN FEDERAL
PROCEEDING TO ESCAPE THE FINDING THAT THE STATE HAD NO EXPECTATION OF
SECURING VALID CONVICTIONS."  ID., AT 621.  OUR HOLDING IN CAMERON WAS
THUS THAT THE STATE COURTS IN WHICH PROSECUTIONS WERE ALREADY PENDING
WOULD HAVE TO BE GIVEN THE FIRST OPPORTUNITY TO CORRECT ANY
MISAPPLICATION OF THE STATE CRIMINAL LAWS; CAMERON IS PLAINLY NOT
AUTHORITY FOR THE PROPOSITION THAT, IN THE ABSENCE OF A PENDING STATE
PROCEEDING, A FEDERAL PLAINTIFF MAY NOT SEEK A DECLARATORY JUDGMENT
THAT THE STATE STATUTE IS BEING APPLIED IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS. 

INDEED, THE STATE'S CONCERN WITH POTENTIAL INTERFERENCE IN THE
ADMINISTRATION OF ITS CRIMINAL LAWS IS OF LESSER DIMENSION WHEN AN
ATTACK IS MADE UPON THE CONSTITUTIONALITY OF A STATE STATUTE AS
APPLIED.  A DECLARATORY JUDGMENT OF A LOWER FEDERL COURT THAT A STATE
STATUTE IS INVALID IN TOTO--AND THEREFORE INCAPABLE OF ANY VALID
APPLICATION--, OR IS OVERBROAD OR VAGUE--, AND THEREFORE NO PERSON CAN
PROPERLY BE CONVICTED UNDER THE STATUTE UNTIL IT IS GIVEN A NARROWING
OR CLARIFYING CONSTRUCTION, SEE, E.G., UNITED STATES V. THIRY-SEVEN
PHOTOGRAPHS, 402 U.S. 363, 369 (1971); GOODING V. WILSON, 405 U.S. 518,
520 (1972)--, WILL LIKELY HAVE A MORE SIGNIFICANT POTENTIAL FOR
DISRUPTION OF STATE ENFORCEMENT POLICIES THAN A DECLARATION SPECIFYING
A LIMITED NUMBER OF IMPERMISSIBLE APPLICATIONS OF THE STATUTE.  WHILE
THE FEDERAL INTEREST MAY BE GREATER WHEN A STATE STATUTE IS ATTACKED ON
ITS FACE, SINCE THERE EXISTS THE POTENTIAL FOR ELIMINATING ANY BROAD
RANGING DETERRENT EFFECT ON WOULD-BE ACTORS, SEE DOMBROWSKI V. PFISTER,
380 U.S. 479 (1965), WE DO NOT FIND THIS CONSIDERATION CONTROLLING. 
THE SOLITARY INDIVIDUAL WHO SUFFERS A DEPRIVATION OF HIS CONSTITUTIONAL
RIGHTS IS NO LESS DESERVING OF REDRESS THAN ONE WHO SUFFERS TOGETHER
WITH OTHERS.  /21/ 

WE THEREFORE HOLD THAT, REGARDLESS OF WHETHER INJUNCTIVE RELIEF MAY
BE APPROPRIATE, FEDERAL DECLARATORY RELIEF IS NOT PRECLUDED WHEN NO
STATE PROSECUTION IS PENDING AND A FEDERAL PLAINTIFF DEMONSTRATES A
GENUINE THREAT OF ENFORCEMENT OF A DISPUTED STATE CRIMINAL STATUTE,
WHETHER AN ATTACK IS MADE ON THE CONSTITUTIONALITY OF THE STATUTE ON
ITS FACE OR AS APPLIED.  /22/  THE JUDGMENT OF THE COURT OF APPELAS IS
REVERSED, AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

         IT IS SO ORDERED. 

/1/  THE STATUTE PROVIDES: 

"(A) A PERSON COMMITS CRIMINAL TRESPASS WHEN HE INTENTIOALLY DAMAGES
ANY PROPERTY OF ANOTHER WITHOUT HIS CONSENT AND THE DAMAGE THERETO IS
$100 OR LESS, OR KNOWINGLY AND MALICIOUSLY INTERFERES WITH THE
POSSESSION OR USE OF THE PROPERTY OF ANOTHER PERSON WITHOUT HIS
CONSENT. 

"(B) A PERSON COMMITS CRIMINAL TRESPASS WHEN HE KNOWINGLY AND
WITHOUT AUTHORITY: 

"(1) ENTERS UPON THE LAND OR PREMISES OF ANOTHER PERSON, OR INTO ANY
PART OF ANY VEHICLE, RAILRAOD CAR, AIRCRAFT, OR WATERCRAFT OF ANOTHER
PERSON, FOR AN UNLAWFUL PURPOSE; OR 

"(2) ENTERS UPON THE LAND OR PREMISES OF ANOTHER PERSON, OR INTO ANY
PART OF ANY VEHICLE, RAILROAD CAR, AIRCRAFT, OR WATERCRAFT OF ANOTHER
PERSON, AFTER RECEIVING, PRIOR TO SUCH ENTRY, NOTICE FROM OWNER OR
RIGHTFUL OCCUPANT THAT SUCH ENTRY IS FORBIDDEN; OR 

"(3) REMAINS UPON THE LAND OR PREMISES OF ANOTHER PERSON, OR WITHIN
THE VEHICLE, RAILROAD CAR, AIRCRAFT, OR WATERCRAFT OF ANOTHER PERSON,
AFTER RECEIVING NOTICE FROM THE OWNER OR RIGHTFUL OCCUPANT TO DEPART. 

"(C) A PERSON CONVICTED OF CRIMINAL TRESPASS SHALL BE PUNISHED AS
FOR A MISDEMEANOR." 

/2/  AT A HEARING IN THE DISTRICT COURT, PETITIONER TESTIFIED THAT
ON ANOTHER OCCASION, PRIOR TO JUNE 1970, HE HAD ALSO BEEN THREATENED
WITH ARREST FOR HANDBILLING AT THE SHOPPING CENTER.  AT THAT TIME, THE
POLICE HAD SHOWN HIM THE STATUTE THEY INTENDED TO ENFORCE, PRESUMABLY
26 - 1503.  R. 140 - 141. 

/3/  WE WERE ADVISED AT ORAL ARGUMENT THAT THE TRIAL OF PETITIONER'S
COMPANION, SANDRA LEE BECKER, HAS BEEN STAYED PENDING DECISION OF THIS
CASE.  SEE TR. OF ORAL ARG. 31. 

/4/  AT THE DISTRICT COURT HEARING, COUNSEL FOR THE POLICE OFFICERS
INDICATED THAT ARRESTS IN FACT WOULD BE MADE IF WARRANTS SWORN OUT BY
SHOPPING CENTER PERSONNEL WERE FACIALLY PROPER.  R. 134. 

/5/  THE COMPLAINT WAS INITIALLY STYLED AS A CLASS ACTION.  NAMED AS
PLAINTIFFS WERE PETITIONER, A MINOR SUING THROUGH HIS FATHER; SANDRA
LEE BECKER, PETITIONER'S HANDBILLING COMPANION AGAINST WHOM A
PROSECUTION WAS PENDING UNDER THE GEORGIA STATUTE, SEE N. 3, SUPRA,
ALSO A MINOR SUING THROUGH HER FATHER; AND THE ALTANTA MOBILIZATION
COMMITTEE.  THE COMPLAINT HAD ALSO SOUGHT TO ENJOIN PLAINTIFF BECKER'S
PENDING PROSECUTION.  ONLY PETITIONER APPEALED FROM THE DISTRICT
COURT'S DECISION DENYING ALL RELIEF. 

/6/  PETITIONER'S NOTICE OF APPEAL CHALLENGED THE DENIAL OF BOTH
INJUNCTIVE AND DECLARATORY RELIEF.  HOWEVER, IN HIS APPELLATE BRIEF, HE
ABANDONED HIS APPEAL FROM DENIAL OF INJUNCTIVE RELIEF.  BECKER V.
THOMPSON, 459 F.2D 919, 921 (1972). 

/7/  SINCE THE COMPLAINT HAD ORGINALLY SOUGHT TO ENJOIN ENFORCEMENT
OF THE STATE STATUTE ON GRUNDS OF UNCONSTITUTIONALITY, A THREE-JUDGE
DISTRICT COURT SHOULD HAVE BEEN CONVENED.  SEE 28 U.S.C. 2281; GOOSBY
V. OSSER, 409 U.S. 512 (1973); IDLEWILD BON VOYAGE LIQUOR CORP. V.
EPSTEIN, 370 U.S. 713, 715 (1962).  A THREE-JUDGE COURT IS REQUIRED
EVEN IF THE CONSTITUTIONAL ATTACK--, AS HERE--, IS UPON THE STATUTE AS
APPLIED, SEE DEPARTMENT OF EMPLOYMENT V. UNITED STATES, 385 U.S. 355
(1966); QUERY V. UNITED STATES, 316 U.S. 486 (1942); EX PARTE
BRANSFORD, 310 U.S. 354, 361 (1940); SEE GENERALLY CURRIE, THE THREE
JUDGE DISTRICT COURT IN CONSTITUTIONAL LITIGATION, 32 U. CHI.  L. REV.
1, 37 - 50 (1964); AND IS NORMALLY REQUIRED EVEN IF THE DECISION IS TO
DISMISS UNDER YOUNGER-SAMUELS PRINCIPLES, SINCE AN EXERCISE OF
DISCRETION WILL USUALLY BE NECESSARY, SEE JONES V. WADE, 479 F.2D 1176,
1180 (CA5 1973); ABELE V. MARKLE, 452 F.2D 1121, 1125 (CA2 1971); SEE
GENERALLY NOTE, THE THREE-JUDGE DISTRICT COURT: SCOPE AND PROCEDURE
UNDER SECTION  281, 77 HARV. L. REV. 299, 309 (1963).  BUT SINCE
PETITIONER'S REQUEST FOR INJUNCTIVE RELIEF WAS ABONDONED ON APPEAL, SEE
N. 6, SUPRA, AND ONLY A REQUEST FOR DECLARATORY RELIEF REMAINED, THE
COURT OF APPELAS DID NOT ERR IN EXERCISING JURISDICTION OVER THE
APPEAL.  CF. ROE V. WADE, 410 U.S. 113, 123 (1973):  MITCHELL V.
DONOVAN, 398 U.S. 427 (1970); KENNEDY V. MENDOZA-MARTINEZ, 372 U.S.
144, 152 - 155 (1963); STRATTON V. ST. LOUIS S. W. R. CO., 282 U.S. 10,
16 (1930). 

/8/  OTHER FEDERAL COURTS HAVE ENTERTAINED APPLICATIONS FOR
INJUNCTIVE AND DECLARATORY RELIEF IN THE ABSENCE OF A PENDING STATE
PROSECUTION.  SEE, E.G., THOMAS V. HEFFERNAN, 473 F. 2D 478 (CA2 1973),
AFF'G 334 F. SUPP. 1203 (CONN. 1971) (THREE-JUDGE COURT); WULP V.
CORCORAN, 454 F.2D 826 (CA1 1972); CROSSEN V. BRECKENRIDGE, 446 F.2D
833 (CA6 1971); LEWIS V. KUGLER, 446 F.2D 1343 (CA3 1971):  ANDERSON V.
VAUGHN, 327 F. SUPP. 101 (CONN. 1971) (THREE-JUDGE COURT).  EVEN THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS LIMITED COURT).  EVEN THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS LIMITED THE SCOPE OF THE
INSTANT DECISION BY ENTERTAINING AN ACTION FOR DECLARATORY AND
INJUNCTIVE RELIEF IN THE ABSENCE OF A STATE PROSECUTION WHEN THE
FEDERAL SUIT ATTACKED THE FACIAL VALIDITY OF A STATE STATUTE RATHER
THAN THE VALIDITY OF THE STATUTE AS APPLIED.  SEE JONES V. WADE, SUPRA
(WISDON, J.). 

/9/  SECTION 2201 PROVIDES: 

"IN A CASE OF ACTUAL CONTROVERSY WITHIN ITS JURISDICTION, EXCEPT
WITH RESPECT TO FEDERAL TAXES, ANY COURT OF THE UNITED STATES, UPON THE
FILING OF AN APPROPRIATE PLEADING, MAY DECLARE THE RIGHTS AND OTHER
LEGAL RELATIONS OF ANY INTERESTED PARTY SEEKING SUCH DECLARATION,
WHETHER OR NOT FURTHER RELIEF IS OR COULD BE SOUGHT.  ANY SUCH
DECLARATION SHALL HAVE THE FORCE AND EFFECT OF A FINAL JUDGMENT OR
DECREE AND SHALL BE REVIEWABLE AS SUCH." 


"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." 

/10/  THE RULE IN FEDERAL CASES IS THAT AN ACTUAL CONTROVERSY MUST
BE EXTANT AT ALL STAGES OF REVIEW, NOT MERELY AT THE TIME THE COMPLAINT
IS FILED.  SEE, E.G., ROE V. WADE, 410 U.S., AT 125; SEC V. MEDICAL
COMM. FOR HUMAN RIGHTS, 404 U.S. 403 (1972); UNITED STATES V.
MUNSINGWEAR, INC., 340 U.S. 36 (1950). 

/11/  THE COURT NOTED THAT UNDER 28 U.SC. 2202 A DECLARATORY
JUDGMENT MIGHT SERVE AS THE BASIS FOR ISSUANCE OF A LATER INJUNCTION TO
GIVE EFFECT TO THE DECLARATORY JUDGMENT, SEE N. 9, SUPRA, AND THAT A
DECLARATORY JUDGMENT MIGHT HAVE A RES JUDICATA EFFECT ON THE PENDING
STATE PROCEEDING.  401 U.S., AT 72. 

/12/  WE NOTE THAT, IN THOSE CASES WHERE INJUNCTIVE RELIEF HAS BEEN
SOUGHT TO RESTRAIN AN IMMINENT, BUT NOT YET PENDING, PROSECUTION FOR
PAST CONDUCT, SUFFICIENT INJURY HAS NOT BEEN FOUND TO WARRANT
INJUNCTIVE RELIEF, SEE BEAL V. MISSOURI PACIFIC R. CO., 312 U.S. 45
(1941); SPIELMAN MOTOR SALES CO. V. DODGE, 295 U.S. 89 (1935); FENNER
V. BOYKIN, 271 U.S. 240 (1926).  THERE IS SOME QUESTION, HOWEVER,
WHETHER A SHOWING OF IRREPARABLE INJURY MIGHT BE MADE IN A CASE WHERE,
ALTHOUGH NO PROSECUTION IS PENDING OR IMPENDING, AN INDIVIDUAL
DEMONSTRATES THAT HE WILL BE REQUIRED TO FORGO CONSTITUTIONALLY
PROTECTED ACTIVITY IN ORDER TO AVOID ARREST.  COMPARE DOMBROWSKI V.
PFISTER, 380 U.S. 479 (1965); HYGRADE PROVISION CO. V. SHERMAN, 266
U.S. 497 (1925); AND TERRACE V. THOMPSON, 263 U.S. 197, 214, 216
(1923), WITH DOUGLAS V. CITY OF JENNETTE, 319 U.S. 157 (1943); SEE
GENERALLY NOTE, IMPLICATIONS OF THE YOUNGER CASES FOR THE AVAILABILITY
OF FEDERAL EQUITABLE RELIEF WHEN NO STATE PROSECUTION IS PENDING, 72
COL. L. REV. 874 (1972). 

/13/  "SENSITIVENESS TO 'STATES' RIGHTS', FEAR OF RIVALRY WITH STATE
COURTS AND RESPECT FOR STATE SENTIMENT, WERE SWEPT ASIDE BY THE GREAT
IMPULSE OF NATIONAL FEELING BORN OF THE CIVIL WAR.  NATIONALISM WAS
TRIUMPHANT; IN NATIONAL ADMINISTRATION WAS SOUGHT ITS VINDICATION.  THE
NEW EXERTIONS OF FEDERAL POWER WERE NO LONGER TRUSTTED TO THE
ENFORCEMENT OF STATE AGENCIES."  F. FRANKFURTER & J. LANDIS, THE
BUSINESS OF THE SUPREME COURT 64 (1928). 

/14/  IN THE LAST DAYS OF THE JOHN ADAMS ADMINISTRATION, GENERAL
FEDERAL-QUESTION JURISDICTION HAD BEEN GRANTED TO THE FEDERAL COURTS BY
11 OF THE MIDNIGHT JUDGES ACT, 2 STAT. 92 (1801).  THE ACT WAS REPEALED
ONLY ONE YEAR LATER BY 1 OF THE ACT OF MAR. 8, 1802, 2 STAT. 132. 

/15/  THE HISTORIES OF THE CIVIL RIGHTS ACT OF 1871 AND THE
JUDICIARY ACT OF 1875 ARE DETAILED IN ZWICKLER V. KOOTA, 389 U.S. 241,
245 - 247 (1967). 

/16/  THE THREE-JUDGE-COURT PROCEDURE, WITH EXPEDITED REVIEW, WAS
MODELED AFTER THE EXPENDITING ACT, 32 STAT. 823, NOW 15 U.S.C. 28 - 29;
49 U.S.C. 44 - 45, REQUIRING THAT FOR CERTAIN ANTITRUST CASES CERTIFIED
BY THE ATTORNEY GENERAL TO BE OF PARTICULAR PBULIC IMPORTANCE A THREE
JUDGE COURT BE CONVENED WITH DIRECT APPEAL TO THE SUPREME COURT, AS
WELL AS A 1906 ACT, 34 STAT. 584, 592 APPLYING THE SAME PROCEDURE TO
SUITS BROUGHT TO RESTRAIN, ANNUL, OR SET ASIDE ORDERS OF THE INTERSTATE
COMMERCE COMMISSION.  SEE HUTCHESON, A CASE FOR THREE JUDGES, 47 HARV.
L. REV. 795, 810 (1934). 

/17/  THE THREE-JUDGE-COURT PROVISION WAS AMENDED IN 1913 TO APPLY
ALSO TO INTERLOCUTORY INJUNCTIONS RESTRAINING ENFORCEMENT OF STATE
ADMINISTRATIVE OR COMMISSION ORDERS.  C. 160, 37 STAT. 1013.  IT WAS
FURTHER AMENDED IN 1925 TO EXTEND THE THREE-JUDGE REQUIREMENT AND THE
DIRECT-APPEAL PROVISIONS TO THE FINAL HEARING ON A PERMANENT
INJUNCTION, THEREBY ENDING THE ANOMALOUS SITUATION IN WHICH A SINGLE
JUDGE, AT THE FINAL HEARING, COULD OVERRULE THE DECISION OF THREE
JUDGES GRANTING AN INTERLOCUTORY INJUNCTION.  43 STAT. 936, 938.  WHEN
THE STATUTE WAS CODIFIED IN 1948, IT WAS MADE APPLICABLE TO ALL ACTIONS
SEEKING EITHER A PRELIMINARY OR PERMANENT INJUNCTION, GOLDSTEIN V. COX,
396 U.S. 471, 478 N. 3 (1970).  SEE GENERALLY H. HART & H. WECHSLER,
THE FEDERAL COURTS AND THE FEDERAL SYSTEM 967 - 968 (2D ED. 1973); C.
WRIGHT, FEDERAL COURTS 50, PP. 188 - 189 (2D ED.  1970). 

/18/  AS PROFESSOR BORCHARD, A PRINCIPAL PROPONENT AND AUTHOR OF THE
FEDERAL DECLARATORY JUDGMENT ACT, SAID IN A WRITTEN STATEMENT
INTRODUCED AT THE HEARINGS ON THE ACT:  "IT OFTEN HAPPENS THAT COURTS
ARE UNWILLING TO GRANT INJUNCTIONS TO RESTRAIN THE ENFORCEMENT OF PENAL
STATUTES OR ORDINANCES, AND RELEGATE PLAINTIFF TO HIS OPTION, EITHER TO
VIOLATE THE STATUTE AND TAKE HIS CHANCES IN TESTING CONSTITUTIONALITY
ON A CRIMINAL PROSECUTION, OR ELSE TO (FOREGO), IN THE FEAR OF
PROSECUTION, THE EXERCISE OF HIS CLAIMED RIGHTS.  INTO THIS DILEMMA NO
CIVILIZED LEGAL SYSTEM OPERATING UNDER A CONSTITUTION SHOULD FORCE ANY
PERSON.  THE COURT, IN EFFECT, BY REFUSING AN INJUNCTION INFORMS THE
PROSPECTIVE VICTIM THAT THE ONLY WAY TO DETERMINE WHETHER THE SUSPECT
IS A MUSHROOM OR A TOADSTOOL, IS TO EAT IT.  ASSUMING THAT THE
PLAINTIFF HAS A VITAL INTEREST IN THE ENFORCEMENT OF THE CHALLENGED
STATUTE OR ORDINANCE, THERE IS NO REASON WHY A DECLARATORY JUDGMENT
SHOULD NOT BE ISSUED, INSTEAD OF COMPELLING A VIOLATION OF THE STATUTE
AS A CONDITION PRECEDENT TO CHALLENGING ITS CONSTITUTIONALITY." 
HEARINGS ON H.R. 5623 BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
THE JUDICIARY, 70TH CONG., 1ST SESS., 75 - 76 (1928).  SEE E. BORCHARD,
DECLARATORY JUDGMENTS X-XI (2D ED. 1941).     /19/  THE PENDING
PROSECUTION OF PETITIONER'S HANDBILLING COMPANION DOES NOT AFFECT
PETITIONER'S ACTION FOR DECLARATORY RELIEF.  IN ROE V. WADE, 410 U.S.
113 (1973), WHILE THE PENDING PROSECUTION OF DR. HALLFORD UNDER THE
TEXAS ABORTION LAW WAS FOUND TO RENDER HIS ACTION FOR DECLARATORY AND
INJUNCTIVE RELIEF IMPERMISSIBLE, THIS DID NOT PREVENT OUR GRANTING
PLAINTIFF ROE, AGAINST WHOM NO ACTION WAS PENDING, A DECLARATORY
JUDGMENT THAT THE STATUTE WAS UNCONSTITUTIONAL.  ID., AT 125 - 127, 166
- 167; SEE LEWIS V. KUGLER, 446 F.2D 1343, 1349 (CA3 1971). 

/20/  IN GREAT LAKES CO. V. HUFFMAN, EMPLOYERS SOUGHT A DECLARATION
THAT A STATE UNEMPLOYMENT COMPENSATION SCHEME IMPOSING A TAX UPON THEM
WAS UNCONSTITUTIONAL AS APPLIED.  ALTHOUGH NOT RELYING ON THE PRECISE
TERMS OF 28 U.S.C. 41 (1) (1940ED.), NOW 28 U.S.C. 1341, WHICH OUSTS
THE DISTRICT COURTS OF JURISDICTION TO "ENJOIN, SUSPEND OR RESTRAIN THE
ASSESSMENT, LEVY OR COLLECTION OF ANY TAX UNDER STATE LAW WHERE A
PLAIN, SPEEDY AND EFFICIENT REMEDY MAY BE HAD IN THE COURTS OF SUCH
STATE," THE COURT, RECOGNIZING THE UNIQUE EFFECTS OF ANTICIPATORY
ADJUDICATION ON TAX ADMINISTRATION, HELD THAT DECLARATORY RELIEF SHOULD
BE WITHHELD WHEN THE TAXPAYER WAS PROVIDED AN OPPORTUNITY TO MAINTAIN A
REFUND SUIT AFTER PAYMENT OF THE DISPUTED TAX.  "IN CONTRAST, THERE IS
NO STATUTORY COUNTERPART OF 28 U.S.C. 1341 APPLICABLE TO INTERVENTION
IN STATE CRIMINAL PROSECUTIONS."  PEREZ V. LEDESMA, 401 U.S. 82, 128
(1971) (SEPARATE OPINION OF BRENNAN, J.). 

/21/  ABSTENTION, A QUESTION "ENTIRELY SEPARATE FROM THE QUESTION OF
GRANTING DECLARATORY OR INJUNCTIVE RELIEF."  LAKE CARRIERS'  ASSN. V.
MACMULLAN, 406 U.S. 498, 509 N. 13 (1972), MIGHT BE MORE APPROPRIATE
WHEN A CHALLENGE IS MADE TO THE STATE STATUTE AS APPLIED, RATHER THAN
UPON ITS FACE, SINCE THE REACH OF AN UNCERTAIN STATE STATUTE MIGHT, IN
THAT CIRCUMSTANCE BE MORE SUSCEPTIBLE OF A LIMITING OR CLARIFYING
CONSTRUCTION THAT WOULD AVOID THE FEDERAL CONSTITUTIONAL QUESTION.  CF.
ZWICKLER V. KOOTA, 389 U.S., AT 249 - 252, 254; BAGGETT V. BULLITT, 377
U.S. 360, 375 - 378 (1964). 

/22/  SOME TWO YEARS AFTER PETITIONER ATTEMPTED TO HANDBILL AT THE
SHOPPING CENTER, RESPONDENT HUDGENS THE OWNER OF THE CENTER, COMMENCED
AN ACTION IN THE SUPERIOR COURT OF FULTON COUNTY SEEKING A DECLARATION
OF HIS RIGHTS CONCERNING THE CENTER'S RULES AGAINST HANDBILLING AND
RELATED ACTIVITIES.  WE WERE ADVISED AT ORAL ARGUMENT THAT THE STATE
ACTION HAD BEEN DISMISSED BY THE TRIAL COURT BUT THAT AN APPEAL IS
PENDING BEFORE THE GEORGIA SUPREME COURT.  SINCE WE DO NOT REQUIRE
PETITIONER FIRST TO SEEK VINDICATION OF HIS FEDERAL RIGHTS IN A STATE
DECLARATORY JUDGMENT ACTION, SEE LAKE CARRIERS'  ASSN. V. MACMULLAN,
SUPRA, AT 510; WISCONSIN V. CONSTANTINEAU, 400 U.S. 433 (1971),
CONSIDERATION OF ABSTENTION BY THE DISTRICT COURT WOULD BE
INAPPROPRIATE UNLESS THE ACTION COMMENCED BY RESPONDENT HUDGENS COULD
BE SHOWN TO PRESENT A SUBSTANTIAL AND IMMEDIATE POSSIBILITY OF
OBVIATING PETITIONER'S FEDERAL CLAIM BY A DECISION ON STATE LAW
GROUNDS.  CF.  ASKEW V. HARGRAVE, 401 U.S. 476, 478 (1971); REETZ V.
BOZANICH, 397 U.S. 82 (1970). 

MR. JUSTICE STEWART, WHITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

WHILE JOINING THE OPINION OF THE COURT, I ADD A WORD BY WAY OF
EMPHASIS. 

OUR DECISION TODAY MUST NOT BE UNDERSTOOD AS AUTHORIZING THE
INVOCATION OF FEDERAL DECLARATORY JUDGMENT JURISDICTION BY A PERSON WHO
THINKS A STATE CRIMINAL LAW IS UNCONSTITUTIONAL, EVEN IF HE GENUINELY
FEELS "CHILLED"  IN HIS FREEDOM OF ACTION BY THE LAW'S EXISTENCE, AND
EVEN IF HE HONESTLY ENTERTAINS THE SUBJECTIVE BELIEF THAT HE MAY NOW OR
IN THE FUTURE BE PROSECUTED UNDER IT. 

AS THE COURT STATED IN YOUNGER V. HARRIS, 401 U.S. 37, 52: 

"THE POWER AND DUTY OF THE JUDICIARY TO DECLARE LAWS
UNCONSTITUTIONAL IS IN THE FINAL ANALYSIS DERIVED FROM ITS
RESPONSIBILITY FOR RESOLVING CONCRETE DISPUTES BROUGHT BEFORE THE
COURTS FOR DECISION . . . ."  SEE ALSO BOYLE V. LANDRY, 401 U.S. 77, 80
- 81. 

THE PETITIONER IN THIS CASE HAS SUCCEEDED IN OBJECTIVELY SHOWING
THAT THE THREAT OF IMMINENT ARREST, CORROBORATED BY THE ACTUAL ARREST
OF HIS COMPANION, HAS CREATED AN ACTUAL CONCRETE CONTROVERSY BETWEEN
HIMSELF AND THE AGENTS OF THE STATE.  HE HAS, THEREFORE, DEMONSTRATED
"A GENUINE THREAT OF ENFORCEMENT OF A DISPUTED STATE CRIMINAL STATUTE .
. . ."  /1/  CASES WHERE SUCH A "GENUINE THREAT" CAN BE DEMONSTRATED
WILL, I THINK, BE EXCEEDINGLY RARE. 

/1/  SEE ANTE, AT 475.  WHETHER, IN VIEW OF "RECENT DEVELOPMENTS,"
THE CONTROVERSY IS A CONTINUING ONE, WILL BE FOR THE DISTRICT COURT TO
DETERMINE ON REMAND.  SEE ANTE, AT 460. 

MR. JUSTICE WHITE, CONCURRING. 

I OFFER THE FOLLOWING FEW WORDS IN LIGHT OF MR. JUSTICE REHINQUIST'S
CONCURRENCE IN WHICH HE DISCUSSES THE IMPACT ON A PENDING FEDERAL
ACTION OF A LATER FILED CRIMINAL PROSECUTION AGAINST THE FEDERAL
PLAINTIFF, WHETHER A FEDERAL COURT MAY ENJOIN A STATE CRIMINAL
PROSECUTION UNDER A STATUTE THE FEDERAL COURT HAS EARLIER DECLARED
UNCONSTITUTIONAL AT THE SUIT OF THE DEFENDANT NOW BEING PROSECUTED, AND
THE QUESTION WHETHER THAT DECLARATORY JUDGMENT IS RES JUDICATA IN SUCH
A LATER FILED STATE CRIMINAL ACTION. 

IT SHOULD BE NOTED, FIRST, THAT HIS VIEWS ON THESE ISSUES ARE
NEITHER EXPRESSLY NOR IMPLIEDLY EMBRACED BY THE COURT'S OPINION FILED
TODAY.  SECOND, MY OWN TENTATIVE VIEWS ON THESE QUESTIONS ARE SOMEWHAT
CONTRARY TO MY BROTHER'S. 

AT THIS WRITING AT LEAST, I WOULD ANTICIPATE THAT A FINAL
DECLARATORY JUDGMENT ENTERED BY A FEDERAL COURT HOLDING PARTICULAR
CONDUCT OF THE FEDERAL PLAINTIFF TO BE IMMUNE ON FEDERAL CONSTITUTIONAL
GROUNDS FROM PROSECUTION UNDER STATE LAW SHOULD BE ACCORDED RES
JUDICATA EFFECT IN ANY LATER PROSECUTION OF THAT VERY CONDUCT.  THERE
WOULD ALSO, I THINK, BE ADDITIONAL CIRCUMSTANCES IN WHICH THE FEDERAL
JUDGMENT SHOULD BE CONSIDERED AS MORE THAN A MERE PRECEDENT BEARING ON
THE ISSUE BEFORE THE STATE COURT. 

NEITHR CAN I AT THIS STAGE AGREE THAT THE FEDERAL COURT, HAVING
RENDERED A DECLARATORY JUDGMENT IN FAVOR OF THE PLAINTIFF, COULD NOT
ENJOIN A LATER STATE PROSECUTION FOR CONDUCT THAT THE FEDERAL COURT HAS
DECLARED IMMUNE.  THE DECLARATORY JUDGMENT ACT ITSELF PROVIDES THAT A
"DECLARATION SHALL HAVE THE FORCE AND EFFECT OF A FINAL JUDGMENT OR
DECREE," 28 U.S.C. 2201; EMINENT AUTHORITY ANTICIPATED THAT DECLARATORY
JUDGMENTS WOULD BE RES JUDICATA, E. BORCHARD, DECLARATORY JUDGMENTS 10
11 (2D ED. 1941); AND THERE IS EVERY REASON FOR NOT REDUCING
DECLARATORY JUDGMENTS TO MERE ADVISORY OPINIONS.  TOUCEY V. NEW YORK
LIFE INSURANCE CO., 314 U.S. 118 (1941), ONCE EXPRESSED THE VIEW THAT
2283 FORBADE INJUNCTIONS AGAINST RELITIGATION IN STATE COURTS OF
FEDERALLY DECIDED ISSUES, BUT THE SECTION WAS THEN AMENDED TO OVERRULE
THAT CASE, THE CONSEQUENCE BEING THAT "(IT IS CLEAR THAT THE TOUCEY
RULE IS GONE, AND THAT TO PROTECT OR EFFECTUATE ITS JUDGMENT A FEDERAL
COURT MAY ENJOIN RELITIGATION IN THE STATE COURT."  C. WRIGHT, FEDERAL
COURTS 180 (2D ED. 1970).  I SEE NO MORE REASON HERE TO HOLD THAT THE
FEDERAL PLAINTIFF MUST ALWAYS RELY SOLELY ON HIS PLEA OF RES JUDICATA
IN THE STATE COURTS.  THE STATUTE PROVIDES FOR "(FURTHER NECESSARY OR
PROPER RELIEF . . . AGAINST ANY ADVERSE PARTY WHOSE RIGHTS HAVE BEEN
DETERMINED BY SUCH JUDGMENT," 28 U.S.C. 2202, AND IT WOULD NOT SEEM
IMPROPER TO ENJOIN LOCAL PROSECUTORS WHO REFUSE TO OBSERVE ADVERSE
FEDERAL JUDGMENTS. 

FINALLY, I WOULD THINK THAT A FEDERAL SUIT CHALLENGING A STATE
CRIMINAL STATUTE ON FEDERAL CONSTITUTIONAL GROUNDS COULD BE
SUFFICIENTLY FAR ALONG SO THAT ORDINARY CONSIDERATION OF ECONOMY WOULD
WARRANT REFUSAL TO DISMISS THE FEDERAL CASE SOLELY BECAUSE A STATE
PROSECUTION HAS SUBSEQUENTLY BEEN FILED AND THE FEDERAL QUESTION MAY BE
LITIGATED THERE. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE JOINS,
CONCURRING. 

I CONCUR IN THE OPINION OF THE COURT.  ALTHOUGH MY READING OF THE
LEGISLATIVE HISTORY OF THE DECLARATORY JUDGMENT ACT OF 1934 SUGGEST
THAT ITS PRIMARY PURPOSE WAS TO ENABLE PERSONS TO OBTAIN A DEFINITION
OF THEIR RIGHTS BEFORE AN ACTUAL INJURY HAD OCCURRED, RATHER THAN TO
PALLIATE ANY CONTROVERSY ARISING FROM EX PARTE YOUNG, 209 U.S. 123
(1908), CONGRESS APPARENTLY WAS AWARE AT THE TIME IT PASSES THE ACT
THAT PERSONS THREATENED WITH STATE CRIMINAL PROSECUTIONS MIGHT CHOOSE
TO FORGO THE OFFENDING CONDUCT AND INSTEAD SEEK A FEDERAL DECLARATION
OF THEIR RIGHTS.  USE OF THE DECLARATORY JUDGMENT PROCEDURE IN THE
CIRCUMSTANCES PRESENTED BY THIS CASE SEEMS CONSISTENT WITH THAT
CONGRESSIONAL EXPECTATION. 

IF THIS CASE WERE THE COURT'S FIRST OPPORTUNITY TO DEAL WITH THIS
AREA OF LAW, I WOULD BE CONTENT TO LET THE MATTER REST THERE.  BUT, AS
OUR CASES ABUNDANTLY ILLUSTRATE, THIS AREA OF LAW IS IN CONSTANT
LITIGATION, AND IT IS AN AREA THROUGH WHICH OUR DECISIONS HAVE TRACED A
PATH THAT MAY ACCURATELY BE DESCRIBED AS SINUOUS.  ATTEMPTING TO
ACCOMMODATE THE PRINCIPLES OF THE NEW DECLARATORY JUDGMENT PROCEDURE
WITH OTHER MORE ESTABLISHED PRINCIPLES--, IN PARTICULAR A PROPER REGARD
FOR THE RELATIONSHIP BETWEEN THE INDEPENDENT STATE AND FEDERAL
JUDICIARY SYSTEMS--, THIS COURT HAS ACTED BOTH TO ADVANCE AND TO LIMIT
THE ACT.  COMPARE AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227 (1937),
AND ZWICKLER V. KOOTA, 389 U.S. 241 (1967), WITH GREAT LAKES CO. V.
HUFFMAN, 319 U.S. 293 (1943), AND SAMUELS V. MACKELL, 401 U.S. 66
(1971).  BECAUSE THE OPINION TODAY MAY POSSIBLY BE READ BY RESOURCEFUL
COUNSEL AS COMMENCING A NEW AND LESS RESTRICTIVE CURVE IN THIS PATH OF
ADJUDICATION, I FEEL IT IS IMPORTANT TO EMPHASIZE WHAT THE OPINION DOES
AND DOES NOT SAY. 

TO BEGIN WITH, IT SEEMS APPROPRIATE TO RESTATE THE OBVIOUS: THE
COURT'S DECISION TODAY DEALS ONLY WITH DECLARATORY RELIEF AND WITH
THREATENED PROSECUTIONS.  THE CASE PROVIDES NO AUTHORITY FOR THE
GRANTING OF ANY INJUNCITVE RELIEF NOR DOES IT PROVIDE AUTHORITY FOR THE
GRANTING OF ANY RELIEF AT ALL WHEN PROSECUTIONS ARE PENDING.  THE COURT
QUITE PROPERLY LEAVES FOR ANOTHER DAY WHETHER THE GRANTING OF A
DECLARATORY JUDGMENT BY A FEDERAL COURT WILL HAVE ANY SUBSEQUENT RES
JUDICATA EFFECT OR WILL PERHAPS SUPPORT THE ISSUANCE OF A LATER FEDERAL
INJUNCTION.  BUT SINCE POSSIBLE RESOLUTIONS OF THOSE ISSUES WOULD
SUBSTANTIALLY UNDERCUT THE PRINCIPLES OF FEDERALISM REAFFIRMED IN
YOUNGER V. HARRIS, 401 U.S. 37 (1971), AND PRESERVED BY THE DECISION
TODAY, I FEEL IT APPROPRIATE TO ADD A FEW REMARKS. 

FIRST, THE LEGISLATIVE HISTORY OF THE DECLARATORY JUDGMENT ACT AND
THE COURT'S OPINION IN THIS CASE BOTH RECOGNIZE THAT THE DECLARATORY
JUDGMENT PROCEDURE IS AN ALTERNATIVE TO PURSUIT OF THE ARGUABLY ILLEGAL
ACTIVITY.  /1/  THERE IS NOTHING IN THE ACT'S HISTORY TO SUGGEST THAT
CONGRESS INTENDED TO PROVIDE PERSONS WISHING TO VIOLATE STATE LAWS WITH
A FEDERAL SHIELD BEHIND WHICH THEY COULD CARRRY ON THEIR CONTEMPLATED
CONDUCT.  THUS I DO NOT BELIEVE THAT A FEDERAL PLAINTIFF IN A
DECLARATORY JUDGMENT ACTION CAN AVOID, BY THE MERE FILING OF A
COMPLAINT, THE PRINCIPLES SO FIRMLY EXPRESSED IN SAMUELS, SUPRA.  THE
PLAINTIFF WHO CONTINUES TO VIOLATE A STATE STATUTE AFTER THE FILING OF
HIS FEDERAL COMPLAINT DOES SO BOTH AT THE RISK OF STATE PROSECUTION AND
AT THE RISK OF DISMISSAL HIS FEDERAL LAWSUIT.  FOR ANY ARREST PRIOR TO
RESOLUTION OF THE FEDERAL ACTION WOULD CONSTITUTE A PENDING PROSECUTION
AND BAR DECLARATORY RELIEF UNDER THE PRINCIPLES OF SAMUELS. 

SECOND, I DO NOT BELIEVE THAT TODAY'S DECISION CAN PROPERLY BE
RAISED TO SUPPORT THE ISSUANCE OF A FEDERAL INJUNCTION BASED UPON A
FAVORABLE DECLARATORY JUDGMENT.  /2/  THE COURT'S DESCRIPTION OF
DECLARATORY RELIEF AS "'A MILDER ALTERNATIVE TO THE INJUNCTION
REMEDY,'" ANTE, AT 467, HAVING A "LESS INTRUSIVE EFFECT ON THE
ADMINISTRATION OF STATE CRIMINAL LAWS" THAN AN INJUNCTION, ANTE, AT
469, INDICATES TO ME CRITICAL DISTINCTIONS WHICH MAKE DECLARATORY
RELIEF APPROPRIATE WHERE INJUNCTIVE RELIEF WOULD NOT BE.  IT WOULD ALL
BUT TOTALLY OBSCURE THESE IMPORTANT DISTINCTIONS IF A SUCCESSFUL
APPLICATION FOR DECLARATORY RELIEF CAME TO BE REGARDED, NOT AS THE
CONCLUSION OF A LAWSUIT, BUT AS A GIANT STEP TOWARD OBTAINING AN
INJUNCTION AGAINST A SUBSEQUENT CRIMINAL PROSECUTION.  THE AVALIABILITY
OF INJUNCTIVE RELIEF MUST BE CONSIDERED WITH AN EYE TOWARD THE
IMPORTANT POLICIES OF FEDERALISM WHICH THIS COURT HAS OFTEN
RECOGNIZED. 

IF THE RATIONALE OF CASES SUCH AS YOUNGER AND SAMUELS TURNED IN ANY
WAY UPON THE RELATIVE EASE WITH WHICH A FEDERAL DISTRICT COURT COULD
REACH A CONCLUSION ABOUT THE CONSTITUTIONALITY OF A CHALLENGED STATE
STATUTE, A PRE-EXISTING JUDGMENT DECLARING THE STATUTE UNCONSTITUTIONAL
AS APPLIED TO A PARTICULAR PLAINTIFF WOULD, OF COURSE, BE A FACTOR
FAVORING THE ISSUANCE OF AN INJUNCTION AS "FURTHER RELIEF" UNDER THE
DECLARATORY JUDGMENT ACT.  BUT, EXCEPT FOR STATUTES THAT ARE
"'FLAGRANTLY AND PATENTLY VIOLATIVE OF EXPRESS CONSTITUTIONAL
PROHIBITIONS IN EVERY CLAUSE, SENTENCE AND PARAGRAPH . . .,'" YOUNGER
V. HARRIS, SUPRA, AT 53, THE RATIONALE OF THOSE CASES HAS NO SUCH
BASIS.  THIER DIRECTION THAT FEDERAL COURTS NOT INTERFERE WITH STATE
PROSECUTIONS DOES NOT VARY DEPENDING ON THE CLOSENESS OF THE
CONSTITUTIONAL ISSUE OR ON THE DEGREE OF CONSCIENCE WHICH THE FEDERAL
COURT POSSESSES IN THE CORRECTNESS OF ITS CONCLUSIONS ON THE
CONSTITUTIONAL POINT.  THOSE DECISIONS INSTEAD DEPEND UPON
CONSIDERATIONS RELEVANT TO THE HARMONIOUS OPERATION OF SEPARATE FEDERAL
AND STATE COURT SYSTEMS, WITH A SPECIAL REGARD FOR THE STATE'S INTEREST
IN ENFORCING ITS OWN CRIMINAL LAWS, CONSIDERATIONS WHICH ARE AS
RELEVANT IN GUIDING THE ACTION OF A FEDERAL COURT WHICH HAS PREVIOUSLY
ISSUED A DECLARATORY JUDGMENT AS THEY ARE IN GUIDING THE ACTION OF ONE
WHICH HAS NOT.  WHILE THE RESULT MAY BE THAT INJUNCTIVE RELIEF IS NOT
AVALIABLE AS "FURTHER RELIEF" UNDER THE DECLARATORY JUDGMENT ACT IN
THIS PARTICULAR CLASS OF CASES WHEREAS IT WOULD BE IN SIMILAR CASES NOT
INVOLVING CONSIDERATIONS OF FEDERALISM, THIS WOULD BE NO MORE A PRO
TANTO REPEAL OF THAT PROVISION OF THE DECLARATORY JUDGMENT ACT THAN WAS
YOUNGER A PRO TANTO REPEAL OF THE ALL WRITS ACT, 28 U.S.C. 1651. 

A DECLARATORY JUDGMENT IS SIMPLY A STATEMENT OF RIGHTS, NOT A
BINDING ORDER SUPPLEMENTED BY CONTINUING SANCTIONS.  STATE AUTHORITIES
MAY CHOOSE TO BE GUIDED BY THE JUDGMENT OF A LOWER FEDERAL COURT, BUT
THEY ARE NOT COMPELLED TO FOLLOW THE DECISION BY THREAT OF CONTEMPT OR
OTHER PENALITIES.  IF THE FEDERAL PLAINTIFF PURSUES THE CONDUCT FOR
WHICH HE WAS PREVIOUSLY THREATENED WITH ARREST AND IS IN FACT ARRESTED,
HE MAY NOT RETURN THE CONTROVERSY TO FEDERAL COURT, ALTHOUGH HE MAY, OF
COURSE, RAISE THE FEDERAL DECLARATORY JUDGMENT IN THE STATE COURT FOR
WHATEVER VALUE IT MAY PROVE TO HAVE.  /3/  IN ANY EVENT, THE DEFENDANT
AT THAT POINT IS ABLE TO PRESENT HIS CASE FOR FULL CONSIDERATION BY A
STATE COURT CHARGED, AS ARE THE FEDERAL COURTS, TO PRESERVE THE
DEFENDANT'S CONSTITUTIONAL RIGHTS.  FEDERAL INTERFERENCE WITH THIS
PROCESS WOULD INVOLVE PRECISELY THE SAME CONCERNS DISCUSSED IN YOUNGER
AND RECITED IN THE COURT'S OPINION IN THIS CASE.  /4/ 

THIRD, ATTEMPTS TO CIRCUMVENT YOUNGER BY CLAIMING THAT ENFORCEMENT OF
A STATUTE DECLARED UNCONSTITUTIONAL BY A FEDERAL COURT IS PER SE
EVIDENCE OF BAD FAITH SHOULD NOT FIND SUPPORT IN THE COURT'S DECISION
IN THIS CASE.  AS THE COURT NOTES, QUOTING MY BROTHER BRENNAN'S
SEPARATE OPINION IN PEREZ V. LEDESMA, 401 U.S. 82, 125:

  THE PERSUASIVE FORCE OF THE (FEDERAL) COURT'S OPINION AND
JUDGMENT MAY LEAD STATE PROSECUTORS,

  COURTS, AND LEGISLATORS TO RECONSIDER THEIR RESPECTIVE
RESPONSIBILITIES TOWARD THE

  STATUTE.  ENFORCEMENT POLICIES OR JUDICIAL CONSTRUCTION MAY BE
CHANGED, OR THE LEGISLATURE MAY

  REPEAL THE STATUTE AND START ANEW."  THIS LANGUAGE CLEARLY
RECOGNIZES THAT CONTINUED BELIEF IN THE CONSTITUTIONALITY OF THE
STATUTE BY STATE PROSECUTORIAL OFFICIALS WOULD NOT COMMONLY BE
INDICATIVE OF BAD FAITH AND THAT SUCH ALLEGATIONS, IN THE ABSENCE OF
HIGHLY UNUSUAL CIRCUMSTANCES, WOULD NOT JUSTIFY A FEDERAL COURT'S
DEPARTURE FROM THE GENERAL PRINCIPLES OF RESTRAINT DISCUSSED IN
YOUNGER. 

IF THE DECLARATORY JUDGMENT REMAINS, AS I THINK THE DECLARATORY
JUDGMENT ACT INTENDED, A SIMPLE DECLARATION OF RIGHTS WITHOUT MORE, IT
WILL NOT BE USED MERELY AS A DRAMATIC TACTICAL MANEUVER ON THE PART OF
ANY STATE DEFENDANT SEEKING EXTENDED DELAYS.  NOT WILL IT FORCE STATE
OFFICIALS TO TRY CASES TIME AFTER TIME, FIRST IN THE FEDERAL COURTS AND
THEN IN THE STATE COURTS.  I DO NOT BELIEVE CONGRESS DESIRED SUCH
UNNECESSARY RESULTS, AND I DO NOT THINK THAT TODAY'S DECISION SHOULD BE
READ TO SANCTION THEM.  RATHER THE ACT, AND THE DECISION, STAND FOR THE
SENSIBLE PROPOSITION THAT BOTH A POTENTIAL STATE DEFENDANT, THREATENED
WITH PROSECUTION BUT NOT CHARGED, AND THE STATE ITSELF, CONFRONTED BY A
POSSIBLE VIOLATION OF ITS CRIMINAL LAWS, MAY BENEFIT FROM A PROCEDURE
WHICH PROVIDES FOR A DECLARATION OF RIGHTS WITHOUT ACTIVATION OF THE
CRIMINAL PROCESS.  IF THE FEDERAL COURT FINDS THAT THE THREATENED
PROSECUTION WOULD DEPEND UPON A STATUTE IT JUDGES UNCONSTITUTIONAL, THE
STATE MAY DECIDE TO FORGO PROSECUTION OF SIMILAR CONDUCT IN THE FUTURE,
BELIEVING THE JUDGMENT PERSUASIVE.  SHOULD THE STATE PROSECUTORS NOT
FIND THE DECISION PERSUASIVE ENOUGH TO JUSTIFY FOR-BEARANCE, THE
SUCCESSFUL FEDERAL PLAINTIFF WILL AT LEAST BE ABLE TO BOLSTER HIS
ALLEGATIONS OF UNCONSTITUTIONALITY IN THE STATE TRIAL WITH A DECISION
OF THE FEDERAL DISTRICT COURT IN THE IMMEDIATE LOCALITY.  THE STATE
COURTS MAY FIND THE REASONING CONVINCING EVEN THOUGH THE PROSECUTORS
DID NOT.  FINALLY, OF COURSE, THE STATE LEGISLATURE MAY DECIDE, ON THE
BASIS OF THE FEDERAL DECISION, THAT THE STATUTE WOULD BE BETTER AMENDED
OR REPEALED.  ALL THESE POSSIBLE AVENUES OF RELIEF WOULD BE REACHED
VOLUNTARILY BY THE STATES AND WOULD BE COMPLETELY CONSISTENT WITH THE
CONCEPTS OF FEDERALISM DISCUSSED ABOVE.  OTHER MORE INTRUSIVE FORMS OF
RELIEF SHOULD NOT BE ROUTINELY AVAILABLE. 

THESE CONSIDERATIONS SHOULD PROVE HIGHLY SIGNIFICANT IN REACHING
FUTURE DECISIONS BASED UPON THE DECISION RENDERED TODAY.  FOR THE
PRESENT IT IS ENOUGH TO SAY, AS THE COURT DOES, THAT PETITIONER, IF HE
SUCCESSFULLY ESTABLISHES THE EXISTENCE OF A CONTINUING CONTROVERSY ON
REMAND, MAY MAINTAIN AN ACTION FOR A DECLARATORY JUDGMENT IN THE
DISTRICT COURT. 

/1/  THE REPORT ACCOMPANYING THE SENATE VERSION OF THE BILL STATED: 

THE PROCEDURE HAS BEEN ESPECIALLY USEFUL IN AVOIDING THE NECESSITY,
NOW SO OFTEN PRESENT, OF HAVING TO ACT AT ONE'S PERIL OR TO ACT ON
ONE'S OWN INTERPRETATIONOF HIS RIGHTS, OR ABANDON ONE'S RIGHTS BECAUSE
OF A FEAR OF INCURRING DAMAGES.  SO NOW IT IS OFTEN NECESSARY, IN THE
ABSENCE OF THE DECLARATORY JUDGMENT PROCEDURE, TO VIOLATE OR PURPORT TO
VIOLATE A STATUTE IN ORDER TO OBTAIN A JUDICIAL DETERMINATION OF ITS
MEANING OR VALIDITY.  . . . PERSONS NOW OFTEN HAVE TO ACT AT THEIR
PERIL, A DANGER WHICH COULD BE FREQUENTLY AVOIDED BY THE ABILITY TO SUE
FOR A DECLARATORY JUDGMENT AS TO THEIR RIGHTS OR DUTIES."  S. REP. NO.
1005, 73D CONG., 2D SESS., 2 - 3 (1934).  PETITIONER IN THIS CASE, OF
COURSE, DID CEASE HIS HANDBILLING ACTIVITIES AFTER THE WARNING OF
ARREST. 

/2/  IN SAMUELS V. MACKELL, 401 U.S. 66, 72 (1971), THE COURT
EXPRESSED CONCERN THAT A DECLARATORY JUDGMENT ISSUED WHILE A STATE
PROSECUTION WAS PENDING "MIGHT SERVE AS THE BASIS FOR A SUBSEQUENT
INJUNCTION AGAINST THOSE PROCEEDINGS.  . . ."  THE COURT RECOGNIZED
THAT THE CHAIN OF LITIGATION WOULD "RESULT IN A CLEARLY IMPROPER
INTERFERENCE WITH THE STATE PROCEEDINGS."  IBID.  AS DISCUSSED, INFRA,
I BELIEVE THAT SUCH IMPROPER INTERFERENCE WOULD BE PRESENT EVEN THOUGH
THE DECLARATORY JUDGMENT ITSELF WERE ISSUED PRIOR TO THE TIME OF THE
FEDERAL PLAINTIFF'S ARREST. 

/3/  THE COURT'S OPINION NOTES THAT THE POSSIBLE RES JUDICATA EFFECT
OF A FEDERAL DECLARATORY JUDGMENT IN A SUBSEQUENT STATE COURT
PROSECUTION IS A QUESTION "'NOT FREE FROM DIFFICULTY.'"  ANTE, AT 470. 
I EXPRESS NO OPINION ON THAT ISSUE HERE.  HOWEVER, I DO NOTE THAT THE
FEDERAL DECISION WOULD NOT BE ACCORDED THE STARE DECISIS EFFECT IN
STATE COURT THAT IT WOULD HAVE IN A SUBSEQUENT PROCEEDING PROCEEDING
WITHIN THE SAME FEDERAL JURISDICTION.  ALTHOUGH THE STATE COURT WOULD
NOT BE COMPELLED TO FOLLOW THE FEDERAL HOLDING, THE OPINION MIGHT, OF
COURSE, BE VIEWED AS HIGHLY PERSUASIVE. 

/4/  THE COURT'S OPINION SAYS: 

SENSITIVE TO PRINCIPLES OF E UITY, COMITY, AND FEDERALISM, WE
RECOGNIZED IN YOUNGER V. HARRIS, (401 U.S. 37 (1971),) THAT FEDERAL
COURTS SHOULD ORDINARILY REFRAIN FROM ENJOINING ONGOING STATE CRIMINAL
PROSECUTIONS.  WE WERE COGNIZANT THAT A PENDING STATE PROCEEDING, IN
ALL BUT UNUSUAL CASES, WOULD PROVIDE THE FEDERAL PLAINTIFF WITH THE
NECESSARY VEHICLE FOR VINDICATING HIS CONSTITUTIONAL RIGHTS, AND, IN
THAT CIRCUMSTANCE, THE RESTRAINING OF AN ONGOING PROSECUTION WOULD
ENTAIL AN UNSEEMLY FAILURE TO GIVE EFFECT TO THE PRINCIPLE THAT STATE
COURTS HAVE THE SOLEMN RESPONSIBILITY, EQUALLY WITH THE FEDERAL COURTS
'TO GUARD, ENFORCE, AND PROTECT EVERY RIGHT GRANTED OR SECURED BY THE
CONSTITUTION OF THE UNITED STATES ... 'ROBB V. CONNOLLY, 111 U.S. 624,
637 (1884)."  ANTE, AT 460 - 461. 

HOWARD MOORE, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE ELIZABETH R. RINDSKOPF AND WILLIAM R. GIGNILLIAT III 

LAWRENCE M. COHEN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF FOR RESPONDENTS HUDGENS ET AL. WAS DOCK H. DAVIS. 
..END :



















UNITED STATES V. GENERAL DYNAMICS CORP., 415 U.S. 486 


       UNITED STATES V. GENERAL DYNAMICS CORP. ET. AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS

        NO. 72 - 402.  ARGUED DECEMBER 5, 1973--, DECIDED MARCH 19,

      1974, 341 F.SUPP.  534, AFFIRMED. 


    MATERIAL SERVICE CORP., A DEEP-MINING COAL PRODUCER, AND ITS

  SUCCESSOR, APPELLEE GENERAL DYNAMICS CORP., ACQUIRED, THROUGH

  STOCK PURCHASES, CONTROL OF APPELLEE UNITED ELECTRIC COAL

  COMPANIES, A STRIP-MINING COAL PRODUCER.  THE GOVERNMENT BROUGHT

  SUIT ALLEGING THAT THIS ACQUISITION VIOLATED 7 OF THE CLAYTON

  ACT.  THE DISTRICT COURT FOUND NO VIOLATION ON THE GROUND, INTER

  ALIA, THAT THE GOVERNMENT'S EVIDENCE--, CONSISTING PRINCIPALLY OF

  PAST PRODUCTION STATISTICS SHOWING THAT WITHIN CERTAIN GEOGRAPHIC

MARKETS THE COAL INDUSTRY WAS CONCENTRATED AMONG A SMALL NUMBER

  OF LARGE PRODUCER, THAT THIS CONCENTRATION WAS INCREASING, AND

  THAT THE ACQUISITION HERE WOULD MATERIALY ENLARGE THE ACQUIRING

  COMPANY'S MARKET SHARE AND THEREBY CONTRIBUTE TO THE

  CONCENTRATION TREND--, DID NOT SUPPORT THE GOVERNMENT'S

  CONTENTION THAT THE ACQUISITION SUBSTANTIALLY LESSENED

  COMPETITION IN THE PRODUCTION AND SALE OF COAL IN EITHER OR BOTH

  OF TWO SPECIFIED GEOGRAPHIC MARKETS.  THIS CONCLUSION WAS

  PRIMARILY BASED ON A DETERMINATION THAT UNITED ELECTRIC'S COAL

  RESERVES WERE SO LOW THAT ITS POTENTIAL TO COMPETE WITH OTHER

  PRODUCERS IN THE FUTURE WAS FAR WEAKER THAN THE AGGREGATE

  PRODUCTION STATISTICS RELIED ON BY THE GOVERNMENT MIGHT OTHERWISE

  HAVE INDICATED, VIRTUALLY ALL OF UNITED ELECTRIC'S PROVED

  RESERVES BEING EITHER DEPLETED OR ALREADY COMMITTED BY LONG-TERM

  CONTRACTS WITH LARGE CUSTOMERS SO THAT ITS POWER TO AFFECT THE

  PRICE OF COAL WAS SEVERELY LIMITED AND STEADILY DIMINISHING. 

  HELD: 

     1.  WHILE THE GOVERNMENT'S STATISTICAL SHOWING MIGHT HAVE BEEN

  SUFFICIENT TO SUPPORT A FINDING OF "UNDUE CONCENTRATION" IN THE

  ABSENCE OF OTHER CONSIDERATIONS, THE DISTRICT COURT WAS JUSTIFIED

  IN FINDING THAT OTHER PERTINENT FACTORS AFFECTING THE COAL

INDUSTRY AND APPELLEES' BUSINESS MANDATED A CONCLUSION THAT NO

  SUBSTANTIAL LESSENING OF COMPETITION OCCURRED OR WAS THREATENED

  BY THE ACQUISITION.  AMPLE EVIDENCE SHOWED THAT UNITED ELECTRIC

  DOES NOT HAVE SUFFICIENT RESERVES, WHICH ARE A KEY FACTOR IN

  MEASURING A COAL PRODUCER'S MARKET STRENGTH, TO MAKE IT A

  SIGNIFICANT COMPETITIVE FORCE.  THUS, IN TERMS OF PROBABLE FUTURE

  ABILITY TO COMPETE, RATHER THAN IN TERMS OF PAST PRODUCTION ON

  WHICH THE GOVERNMENT RELIED, THE COURT WAS WARRANTED IN

  CONCLUDING THAT THE MERGER DID NOT VIOLATE 7 OF THE ACT.  PP. 494

  - 504. 

     2.  THE DISTRICT COURT WAS JUSTIFIED IN CONSIDERING

  POST-ACQUISITION EVIDENCE RELATING TO CHANGES IN THE PATTERNS AND

  STRUCTURE OF THE 

     COAL INDUSTRY AND IN UNITED ELECTRIC'S RESERVE SITUATION,
SINCE

  (UNLIKE EVIDENCE SHOWING ONLY THAT NO LESSENING OF COMPETITION

  HAS YET OCCURRED) THE DEMONSTRATION OF WEAK COAL RESOURCES

NECESSARILY IMPLIED THAT UNITED ELECTRIC WAS NOT MERELY

DISINCLINED BUT UNABLE TO COMPETE EFFECTIVELY FOR FUTURE

CONTRACTS, SUCH EVIDENCE GOING DIRECTLY TO THE QUESTION WHETHER

  FUTURE LESSENING OF COMPETITION WAS PROABABLE.  PP. 504 - 506. 

     3.  UNITED ELECTRIC'S WEAK RESERVES POSITION, RATHER THAN

  ESTABLISHING A "FAILING COMPANY" DEFENSE BY SHOWING THAT THE

  COMPANY WOULD HAVE GONE OUT OF BUSINESS BUT FOR THE MERGER,WENT

  TO THE HEART OF THE GOVERNMENT'S STATISTICAL PRIMA FACIE CASE AND

  SUBSTANTIATED THE DISTRICT COURT'S CONCLUSION THAT UNITED

  ELECTRIC, EVEN IF IT REMAINED IN THE MARKET, DID NOT HAVE

  SUFFICIENT RESERVES TO COMPETE EFFECTIVELY FOR LONG-TERM

  CONTRACTS, AND THEREFORE APPELLEES' FAILURE TO MEET THE

  PREREQUISITES OF A FAILING-COMPANY DEFENSE DID NOT DETRACT FROM

  THE VALIDITY OF THE DISTRICT COURT'S ANALYSIS.  PP. 506 - 508. 

     4.  UNDER THE "CLEARLY ERRONEOUS" STANDARD OF FED. RULE CIV.

  PROC. 52 (A), WHICH GOVERNS AS FULLY ON DIRECT APPEAL TO THIS

  COURT AS ON REVIEW BY A COURT OF APPELAS, THE DISTRICT COURT'S

  FINDINGS AND CONCLUSIONS ARE SUPPORTED BY THE EVIDENCE AND ARE

  NOT CLEARLY ERRONEOUS.  P. 508. 

     5.  THE DISTRICT COURT FOUND NEW STRIP RESERVES UNAVALIABLE,

  AND THE MERE POSSIBILITY THAT UNITED ELECTRIC COULD SOME DAY

  ACQUIRE EXPERTISE TO MINE DEEP RESERVES DOES NOT DEPRECIATE THE

  VALIDITY OF THE CONCLUSION THAT UNITED ELECTRIC AT THE TIME OF

  TRIAL DID NOT HAVE THE POWER TO COMPETE EFFECTIVELY FOR LONG-TERM

  CONTRACTS, NOR DOES IT GIVE THE PRODUCTION STATISTICS RELIED ON

  BY THE GOVERNMENT MORE SIGNIFICANCE THAN THE DISTRICT COURT

  ASCRIBED TO THEM.  PP. 508 510. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BLACKMUN, POWELL, AND REHNQUIST, JJ.,JOINED. 

  DOUGLAS, J., FILED A DISSENTING OPINION IN WHICH BRENNAN, WHITE,

  AND MARSHALL, JJ., JOINED, POST, P. 511. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON SEPTEMBER 22, 1967, THE GOVERNMENT COMMENCED THIS SUIT IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS,
CHALLENGING AS VIOLATIVE OF 7 OF THE CLAYTON ACT, 38 STAT. 731, AS
AMENDED, 15 U.S.C. 18, THE ACQUISITION OF THE STOCK OF UNITED ELECTRIC
COAL COMPANIES BY MATERIAL SERVICE CORP. AND ITS SUCCESSOR, GENERAL
DYNAMICS CORP. AFTER LENGTHY DISCOVERY PROCEEDINGS, A TRIAL WAS HELD
FROM MARCH 30 TO APRIL 22, 1970, AND ON APRIL 13, 1972, THE DISTRICT
COURT ISSUED AN OPINION AND JUDGMENT FINDING NO VIOLATION OF THE
CLAYTON ACT.  341 F. SUPP. 534.  THE GOVERNMENT APPEALED DIRECTLY TO
THIS COURT PURSUANT TO THE ESPEDITING ACT, 15 U.S.C. 29, AND WE NOTED
PROBABLE JURISDICTION.  409 U.S. 1058. 

        I 

AT THE TIME OF THE ACQUISITION INVOLVED HERE, MATERIAL SERVICE CORP.
WAS A LARGE MIDWEST PRODUCER AND SUPPLIER OF BUILDING MATERIALS,
CONCRETE, LIMESTONE, AND COAL.  ALL OF ITS COAL PRODUCTION WAS FROM
DEEP-SHAFT MINES OPERATED BY IT OR ITS AFFILIATE, APPELLEE FREEMAN COAL
MINING CORP., AND PRODUCTION FROM THESE OPERATIONS AMOUNTED TO 6.9
MILLION TONS OF COAL IN 1959 AND 8.4 MILLION TONS IN 1967.  IN 1954,
MATERIAL SERVICE BEGAN TO ACQUIRE THE STOCK OF UNITED ELECTRIC COAL
COMPANIES.  UNITED ELECTRIC AT ALL RELEVANT TIMES OPERATED ONLY STRIP
OR OPEN-PIT MINES IN ILLINOIS AND KENTUCKY; AT THE TIME OF TRIAL IN
1970 A NUMBER OF ITS MINES HAD CLOSED AND ITS OPERATIONS HAD BEEN
REDUCED TO FOURT MINES IN ILLINOIS AND NONE IN KENTUCKY.  /1/  IN 1959,
IT PRODUCED 3.6 MILLION TONS OF COAL, AND BY 1967, IT HAD INCREASED
THIS OUTPUT TO 5.7 MILLION TONS.  MATERIAL SERVICE'S PURCHASE OF UNITED
ELECTRIC STOCK CONTINUED UNTIL 1959.  AT THIS POINT MATERIAL'S HOLDINGS
AMOUNTED TO MORE THAN 34% OF UNITED ELECTRIC'S OUTSTANDING SHARES AND-
, ALL PARTIES ARE NOW AGREED ON THIS POINT--, MATERIAL HAD EFFECTIVE
CONTROL OF UNITED ELECTRIC.  THE PRESIDENT OF FREEMAN WAS ELECTED
CHAIRMAN OF UNITED ELECTRIC'S EXECUTIVE COMMITTEE, AND OTHER CHANGES IN
THE CORPORATE STRUCTURE OF UNITED ELECTRIC WERE MADE AT THE BEHEST OF
MATER SERVICE. 

SOME MONTHS AFTER THIS TAKEOVER, MATERIAL SERVICE WAS ITSELF
ACQUIRED BY THE APPELLEE GENERAL DYNAMICS CORP. GENERAL DYNAMICS IS A
LARGE DIVERSIFIED CORPORATION, MUCH OF ITS REVENUES COMING FROM SALES
OF AIRCRAFT, COMMUNICATIONS, AND MARINE PRODUCTS TO GOVERNMENT
AGENCIES.  THE TRIAL COURT FOUND THAT ITS PURCHASE OF MATERIAL SERVICE
WAS PART OF A BROAD DIVERSIFICATION PROGRAM AIMED AT EXPANDING GERNAL
DYNAMICS INTO COMMERCIAL, NONDEFENSE BUSINESS.  AS A RESULT OF THE
PURCHASE OF MATERIAL SERVICE, AND THROUGH IT, OF FREEMAN AND UNITED
ELECTRIC, GENERAL DYNAMICS BECAME THE NATION'S FIFTH LARGEST COMMERCIAL
COAL PRODUCER.  DURING THE EARLY 1960'S GENERAL DYNAMICS INCREASED ITS
EQUITY IN UNITED ELECTRIC BY DIRECT PURCHASES OF UNITED ELECTRIC STOCK,
AND BY 1966 IT HELD OR CONTROLLED 66.15% OF UNITED ELECTRIC'S
OUTSTANDING SHARES.  IN SEPTEMBER 1966 THE BOARD OF DIRECTORS OF
GENERAL DYNAMICS AUTHORIZED A TENDER OFFER TO HOLDERS OF THE REMAINING
UNITED ELECTRIC STOCK.  THIS OFFER WAS SUCCESSFUL, AND UNITED ELECTRIC
SHORTLY THEREAFTER BECAME A WHOLLY OWNED SUBSIDIARY OF GENERAL
DYNAMICS. 

THE THRUST OF THE GOVERNMENT'S COMPLAINT WAS THAT THE ACQUISITION OF
UNITED ELECTRIC BY MATERIAL SERVICE IN 1959 VIOLATED 7 OF THE CLAYTON
ACT.  /2/  BECAUSE THE TAKEOVER SUBSTANTIALLY LESSENED COMPETITION IN
THE PRODUCTION AND SALE OF COAL IN EITHER OR BOTH OF TWO GEOGRAPHIC
MARKETS.  IT CONTENDED THAT A RELEVANT "SECTION OF THE COUNTRY" WITHIN
THE MEANING OF 7 WAS, ALTERNATIVELY, THE STATE OF ILLINOIS OR THE
EASTERN INTERIOR COAL PROVINCE SALES AREA, THE LATTER BEING ONE OF FOUR
MAJOR COAL DISTRIBUTION AREAS RECOGNIZED BY THE COAL INDUSTRY AND
COMPORISING ILLINOIS AND INDIANA, AND PARTS OF KENTUCKY, TENNESSEE,
IOWA, MINNESOTA, WISCONSIN, AND MISSOURI.  /3/ 

AT TRIAL CONTROVERSY FOCUSED ON THREE BASIC ISSUES: THE PROPRIETY OF
COAL AS A "LINE OF COMMERCE," THE DEFINITION OF ILLINOIS OR THE EASTERN
INTERIOR COAL PROVINCE SALES AREA AS A RELEVANT "SECTION OF THE
COUNTRY," AND THE PROBABILITY OF A LESSENING OF COMPETITION WITHIN
THESE OR ANY OTHER PRODUCT AND GEOGRAPHIC MARKETS RESULTING FROM THE
ACQUISITION.  THE DISTRICT COURT DECIDED AGAINST THE GOVERNMENT ON EACH
OF THESE ISSUES. 

AS TO THE RELEVANT PRODUCT MARKET, THE COURT FOUND THAT COAL FACED
STRONG AND DIRECT COMPETITION FROM OTHER SOURCES OF ENERGY SUCH AS OIL,
NATURAL GAS, NUCLEAR ENERGY, AND GEOTHERMAL POWER WHICH CREATED A CROSS
ELASTICITY OF DEMAND AMONG THOSE VARIOUS FUELS.  AS A RESULT, IT
CONCLUDED THAT COAL, BY ITSELF, WAS NOT A PERMISSIBLE PRODUCT MARKET
AND THAT THE "ENERGY MARKET" WAS THE SOLE "LINE OF COMMERCE" IN WHICH
ANTICOMPETITIVE EFFECTS COULD BE CANVASSED. 

SIMILARLY, THE DISTRICT COURT REJECTED THE GOVERNMENT'S PROPOSED
GEOGRAPHIC MARKETS ON THE GROUND THAT THEY WERE "BASED ESSENTIALLY ON
PAST AND PRESENT PRODUCTION STATISTICS AND DO NOT RELATE TO ACTUAL COAL
CONSUMPTION PATTERNS."  341 F.SUPP., AT 556.  THE COURT FOUND THAT A
REALISTIC GEOGRAPHIC MARKET SHOULD BE DEFINED IN TERMS OF
TRANSPORTATION ARTERIES AND FREIGHT CHARGES THAT DETERMINED THE COST OF
DELEIVERED COAL TO PURCHASERS AND THUS THE COMPETITIVE POSITION OF
VARIOUS COAL PRODUCERS.  IN PARTICULAR, IT FOUND THAT FREIGHT RATE
DISTRICTS, DESIGNATED BY THE INTERSTATE COMMERCE COMMISSION FOR
DETERMINING RAIL TRANSPORTATION RATES, OF WHICH THERE WERE FOUR IN THE
AREA SERVED BY THE APPELLEE COMPANIES, WERE THE PRIME DETERMINANTS FOR
THE GEOGRAPHIC COMPETITIVE PATTERNS AMONG COAL PRODUCERS.  IN ADDITION,
THE COURT CONCLUDED THAT TWO LARGE AND SPECIALIZED COAL CONSUMPTION
UNITS WERE SUFFICIENTLY DIFFERENTIABLE IN THEIR COAL USE PATTERNS TO BE
INCLUDED AS RELEVANT GEOGRAPHIC AREAS.  /4/  IN LIEU OF THE STATE OF
ILLINOIS OR THE EASTERN INTERIOR COAL PROVINCE SALES AREA, THE COURT
ACCORDINGLY FOUND THE RELEVANT GEOGRAPHIC MARKET TO BE 10 SMALLER
AREAS.  COMPRISING THE TWO UNIQUE CONSUMERS TOGETHER WITH FOUR UTILITY
SALES AREAS AND FOUR NONUTILITY SALES AREAS BASED ON THE ICC FREIGHT
RATE DISTRICTS. 

FINALLY, AND FOR PURPOSES OF THIS APPEAL MOST SIGNIFICANTLY, THE
DISTRICT COURT FOUND THAT THE EVIDENCE DID NOT SUPPORT THE GOVERNMENT'S
CONTENTION THAT THE 1959 ACQUISTION OF UNITED ELECTRIC SUBSTANTIALLY
LESSENED COMPETITION IN ANY PRODUCT OR GEOGRAPHIC MARKET.  THIS
CONCLUSION WAS BASED ON FOUR DETERMINATIONS MADE IN THE COURT'S
OPINION, ID., AT 558-559.  FIRST, THE COURT NOTED THAT WHILE THE NUMBER
OF COAL PRODUCERS IN THE EASTERN INTERIOR COAL PROVINCE DECLINED FROM
144 TO 39 DURING THE PERIOD OF 1957 - 1967, THIS REDUCTION "OCCURRED
NOT BECAUSE SMALL PRODUCERS HAVE BEEN ACQUIRED BY OTHERS, BUT AS THE
INEVITABLE RESULT OF THE CHANGE IN THE NATURE OF DEMAND FOR COAL." 
CONSEQUENTLY, THE COURT FOUND, "THIS LITIGATION PRESENTS A VERY
DIFFERENT SITUATION FROM THAT IN SUCH CASES AS UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321 (1963), AND UNITED STATES V.
VON'S GROCERY CO., 384 U.S. 270 (1966), WHERE THE SUPREME COURT WAS
CONCERNED WITH 'PREVENTING EVEN SLIGHT INCREASES IN CONCENTRATION.' 
374 U.S., AT 365, N.2."  341 F. SUPP., AT 558.  SECOND, THE COURT NOTED
THAT UNITED ELECTRIC AND FREEMAN WERE "PREDOMINANTLY COMPLEMENTARY IN
NATURE" SINCE "UNITED ELECTRIC IS A STRIP MINING COMPANY WITH NO
EXPERIENCE IN DEEP MINING NOR LIKELIHOOD OF ACQUIRING IT (AND) FREEMAN
IS A DEEP MINING COMPANY WITH NO EXPERIENCE OR EXPERTISE IN STRIP
MINING."  IBID.  THIRD, THE COURT FOUND THAT IF COMMONWEALTH EDISON, A
LARGE INVESTOR-OWNED PUBLIC UTILITY, WERE EXCLUDED, "NONE OF THE SALES
BY UNITED ELECTRIC IN THE PERIOD 1965 TO 1967, THE YEARS CHOSEN BY THE
GOVERNMENT FOR ANALYSIS, WOULD HAVE OR COULD HAVE BEEN COMPETITIVE WITH
FREEMAN, HAD THE TWO COMPANIES BEEN INDEPENDENT," BECAUSE OF RELATIVE
DISTANCES FROM POTENTIAL CONSUMERS AND THE RESULTANT IMPACT ON RELATIVE
COMPETITIVE POSITION.  IBID.  FINALLY, THE COURT FOUND THAT UNITED
ELECTRIC'S COAL RESERVES WERE SO LOW THAT ITS POTENTIAL TO COMPETE WITH
OTHER COAL PRODUCERS IN THE FUTURE WAS FAR WEAKER THAN THE AGGREGATE
PRODUCTION STATISTICS RELIED ON BY THE GOVERNMENT MIGHT OTHERWISE HAVE
INDICATED.  IN PARTICULAR, THE COURT FOUND THAT VIRTUALLY ALL OF UNITED
ELECTRIC'S PROVED COAL RESERVES WERE EITHER DEPLETED OR ALREADY
COMMITTED BY LONG-TERM CONTRACTS WITH LARGE CUSTOMERS, AND THAT UNITED
ELECTRIC'S POWER TO AFFECT THE PRICE OF COAL WAS THUS SEVERELY LIMITED
AND STEADILY DIMINISHING.  ON THE BASIS OF THESE CONSIDERATIONS, THE
COURT CONCLUDED; UNDER THESE CIRCUMSTANCES, CONTINUATION OF THE
AFFILIATION BETWEEN UNITED ELECTRIC AND FREEMAN IS NOT ADVERSE TO
COMPETITION, NOR WOULD DIVESTITURE BENEFIT COMPETITION EVEN WERE THIS
COURT TO ACCEPT THE GOVERNMENT'S UNRALISTIC PRODUCT AND GEOGRAPHIC
MARKET DEFINITIONS."  ID., AT 560. 

        II 

THE GOVERNMENT SOUGHT TO PROVE A VIOLATION OF 7 OF THE CLAYTON ACT
PRINCIPALLY THROUGH STATISTICS SHOWING THAT WITHIN CERTAIN GEOGRAPHIC
MARKETS THE COAL INDUSTRY WAS CONCENTRATED AMONG A SMALL NUMBER OF
LARGE PRODUCERS; THAT THIS CINCENTRATION WAS INCREASING; AND THAT THE
ACQUISITION OF UNITED ELECTRIC WOULD MATERIALLY ENLARGE THE MARKET
SHARE OF THE ACQUIRING COMPANY AND THEREBY CONTRIBUTE TO THE TREND
TOWARD CONCENTRATION. 

THE CONCENTRATION OF THE COAL MARKET IN ILLINOIS AND, ALTERNATIVELY,
IN THE EASTERN INTERIOR COAL PROVINCE WAS DEMONSTRATED BY A TABLE OF
THE SHARES OF THE LARGEST TWO, FOUR, AND 10 COAL-PRODUCING FIRMS IN
EACH OF THESE AREAS FOR BOTH 1957 AND 1967 THAT REVEALED THE FOLLOWING:
/5/ 

     TABLE OMITTED THESE STATISTICS, THE GOVERNMENT ARGUED, SHOWED
NOT ONLY THAT THE COAL INDUSTRY WAS CONCENTRATED AMONG A SMALL NUMBER
OF LEADING PRODUCERS, BUT THAT THE TREND HAD BEEN TOWARD INCREASING
CONCENTRATION.  /6/  FUTHERMORE, THE UNDISBUTED FACT THAT THE NUMBER OF
COAL-PRODUCING FIRMS IN ILLINOIS DECREASED ALMOST 73% DURING THE PERIOD
OF 1957 TO 1967 FROM 144 TO 39 WAS CLAIMED TO BE INDICATIVE OF THE SAME
TREND.  THE ACQUISITION OF UNITED ELECTRIC BY MATERIAL SERVICE RESULTED
IN INCREASED CONCENTRATION OF COAL SALES AMONG THE LEADING PRODUCERS IN
THE AREAS CHOSEN BY THE GOVERNMENT, AS SHOWN BY THE FOLLOWING TABLE:
/7/ 

     TABLE OMITTED FINALLY, THE GOVERNMENT'S STATISTICS INDICATED
THAT THE ACQUISITION, INCREASED THE SHARE OF THE MERGED COMPANY IN THE
ILLINOIS AND EASTERN INTERIOR COAL PROVINCE COAL MARKETS BY SIGNIFICANT
DEGREES:  /8/  TABLE OMITTED PAGE 496 

IN PRIOR DECISIONS INVOLVING HORIZONTAL MERGERS BETWEEN
COMPETITIORS, THIS COURT HAD FOUND PRIMA FACIE VIOLATIONS OF 7 OF THE
CLAYTON ACT FROM AGGREGATE STATISTICS OF THE SORT RELIED ON BY THE
UNITED STATES IN THIS CASE.  IN BROWN SHOE CO. V. UNITED STATES, 370
U.S. 294, THE COURT REVIEWED THE LEGISLATIVE HISTORY OF THE MOST RECENT
ADMENDMENTS TO THE ACT AND FOUND THAT "(THE DOMINANT THEME PERVADING
CONGRESSIONAL CONSIDERATION OF THE 1950 AMENDMENTS WAS A FEAR OF WHAT
WAS CONSIDERED TO BE A RISING TIDE OF ECONOMIC CONCENTRATION IN THE
AMERICAN ECONOMY."  ID., AT 315.  A YEAR LATER, IN UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 US. 321, THE COURT CLARIFIED THE
RELEVANCE OF A STATISTICAL DEMONSTRATION OF CONCENTRATION IN A
PARTICULAR INDUSTRY AND OF THE EFFECTS THEREUPON OF A MERGER OR
ACQUISITION WITH THE FOLLOWING LANGUAGE: 

"THIS INTENSE CONGRESSIONAL CONCERN WITH THE TREND TOWARD
CONCENTRATION WARRANTS DISPENSING, IN CERTAIN CASES, WITH ELABORATE
PROOF OF MARKET STRUCTURE, MARKET BEHAVIOR, OR PROBABLE ANTICOMPETITIVE
EFFECTS.  SPECIFICALLY, WE THINK THAT A MERGER WHICH PRODUCES A FIRM
CONTROLLING AND UNDUE PERCENTAGE SHARE OF THE RELEVANT MARKET, AND
RESULTS IN A SIGNIFICANT INCREASE IN THE CONCENTRATION OF FIRMS IN THAT
MARKET, IS SO INHERENTLY LIKELY TO LESSEN COMPETITION SUBSTANTIALLY
THAT IT MUST BE ENJOINED IN THE ABSENCE OF EVIDENCE CLEARLY SHOWING
THAT THE MERGER IS NOT LIKELY TO HAVE SUCH ANTICOMPETITIVE EFFECTS." 
ID., AT 363.  SEE ALSO UNITED STATES V. CONTINENTAL CAN CO., 378 U.S.
441, 458; UNITED STATES V. VON'S GROCERY CO., 384 U.S., AT 277; UNITED
STATES V. PASBST BREWING CO., 384 U.S. 546, 550 - 552. 

THE EFFECT OF ADOPTING THIS APPROACH TO A DETERMINATION OF A
"SUBSTANTIAL" LESSENING OF COMPETITION IS TO ALLOW THE GOVERNMENT TO
REST ITS CASE ON A SHOWING OF EVEN SMALL INCREASES OF MARKET SHARE OR
MARKET CONCENTRATION IN THOSE INDUSTRIES OR MARKETS WHERE CONCENTRATION
IS ALREADY GREAT OR HAS BEEN RECENTLY INCREASING, SINCE "IF
CONCENTRATION IS ALREADY GREAT, THE IMPORTANCE OF PREVENTING EVEN
SLIGHT INCREASES IN CONCENTRATION AND SO PRESERVING THE POSSIBILITY OF
EVENTUAL DECONCENTRATION IS CORRESPONDINGLY GREAT."  UNITED STATES V.
ALUMINUM CO. OF AMERICA, 377 U.S. 271, 279, CITING UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S., AT 365 N. 42. 

WHILE THE STATISTICAL SHOWING PROFFERED BY THE GOVERNMENT IN THIS
CASE, THE ACCURACY OF WHICH WAS NOT DISCREDITED BY THE DISTRICT COURT
OR CONTESTED BY THE APPELLEES, WOULD UNDER THIS APPROACH HAVE SUFFICED
TO SUPPORT A FINDING OF "UNDUE CONCENTRATION" IN THE ABSENCE OF OTHER
CONSIDERATIONS, THE QUESTION BEFORE US IS WHETHER THE DISTRICT COURT
WAS JUSTIFIED IN FINDING THAT OTHER PERTINENT FACTORS AFFECTING THE
COAL INDUSTRY AND THE BUSINESS OF THE APPELLEES MANDATED A CONCLUSION
THAT NO SUBSTANTIAL LESSENING OF COMPETITION OCCURRED OR WAS THREATENED
BY THE ACQUISITION OF UNITED ELECTRIC.  WE ARE SATISFIED THAT THE
COURT'S ULTIMATE FINDING WAS NOT IN ERROR.     IN BROWN SHOE, UNITED
STATES, SUPRA, WE CAUTIONED THAT STATISTICS CONCERNING MARKET SHARE AND
CONCENTRATION, WHILE OF GREAT SIGNIFICANCE, WERE NOT CONCLUSIVE
INDICATORS OF ANTICOMPETITIVE EFFECTS:

  CONGRESS INDICATED PLAINLY THAT A MERGER HAD TO BE FUNCTIONALLY
VIEWED, IN THE CONTEXT OF ITS       PARTICULAR INDUSTRY."  370 U.S., AT
321 - 322. 

     STATISTICS REFLECTING THE SHARES OF THE MARKET CONTROLLED BY

  THE INDUSTRY LEADERS AND THE PARTIES TO THE MERGER ARE, OF

  COURSE, THE PRIMARY INDEX OF MARKET POWER; BUT ONLY A FURTHER

EXAMINATION OF THE PARTICULAR MARKET--, ITS STRUCTURE, HISTORY

  AND PROBABLE FUTURE--, CAN PROVIDE THE APPROPRIATE SETTING FOR

  JUDGING THE PROBABLE ANTICOMPETITIVE EFFECT OF THE MERGER."  ID.,

  AT 322 N. 38. 

SEE ALSO UNITED STATES V. CONTINENTAL CAN CO., SUPRA, AT 458.  IN THIS
CASE, THE DISTRICT COURT ASSESSED THE EVIDENCE OF THE "STRUCTURE,
HISTORY AND PROBABLE FUTURE" OF THE COAL INDUSTRY, AND ON THE BASIS OF
THIS ASSESSMENT FOUND NO SUBSTANTIAL PROBABILITY OF ANTICOMPETITIVE
EFFECTS FROM THE MERGER.L 

MUCH OF THE DISTRICT COURT'S OPINION WAS DEVOTED TO A DESCRIPTION OF
THE CHANGES THAT HAVE AFFECTED THE COAL INDUSTRY SINCE WORLD WAR II.
ON THE BASIS OF MORE THAN THREE WEEKS OF TESTIMONY AND A VOLUMINOUS
RECORD, THE COURT DISCERNED A NUMBER OF CLEAR AND SIGNIFICANT
DEVELOPMENTS IN THE INDUSTRY.  FIRST, IT FOUND THAT COAL HAD BECOME
INCREASINGLY LESS ABLE TO COMPETE WITH OTHER SOURCES OF ENERGY IN MANY
SEGMENTS OF THE ENERGY MARKET.  FOLLOWING THE WAR THE INDUSTRY ENTIRELY
LOST ITS LARGEST SINGLE PURCHASER OF COAL--, THE RAILROADS--, AND FACED
INCREASINGLY STIFFER COMPETITION FROM OIL AND NATURAL GAS AS SOURCES OF
ENERGY FOR INDUSTRIAL AND RESIDENTIAL USES.  BECAUSE OF THESE CHANGES
IN CONSUMPTION PATTERNS, COAL'S SHARE OF THE ENERGY RESOURCES CONSUMED
IN THIS COUNTRY FELL FROM 78.4% IN 1920 TO 21.4% IN 1968.  THE COURT
REVIEWED EVIDENCE ATTRIBUTING THIS DECLINE NOT ONLY TO THE CHANGING
RELATIVE ECONOMIES OF ALTERNATIVE FUELS AND TO NEW DISTRIBUTION AND
CONSUMPTION PATTERNS, BUT ALSO TO MORE RECENT CONCERN WITH THE EFFECT
OF COAL USE ON THE ENVIRONMENT AND CONSEQUENT REGULATION OF THE EXTENT
AND MEANS OF SUCH COAL CONSUMPTION. 

SECOND, THE COURT FOUND THAT TO A GROWING EXTENT SINCE 1954, THE
ELECTRIC UTILITY INDUSTRY HAS BECOME THE MAINSTAY OF COAL CONSUMPTION. 
WHILE ELECTRIC UTILITIES CONSUMED ONLY 15.76% OF THE COAL PRODUCED
NATIONALLY IN 1947, THEIR SHARE OF TOTAL CONSUMPTION INCREASED EVERY
YEAR THEREAFTER, AND IN 1968 AMOUNTED TO MORE THAN 59% OF ALL THE COAL
CONSUMED THROUGHOUT THE NATION.  /9/ 

THIRD, AND MOST SIGNIFICANTLY, THE COURT FOUND THAT TO AN INCREASING
DEGREE, NEARLY ALL COAL SOLD TO UTILITIES IS TRANSFERRED UNDER LONG
TERM REQUIREMENTS CONTRACTS, UNDER WHICH COAL PRODUCERS PROMISE TO MEET
UTILITIES' COAL CONSUMPTION REQUIREMENTS FOR A FIXED PERIOD OF TIME,
AND AT PREDETERMINED PRICES.  THE COURT DESCRIBED THE MUTUAL BENEFITS
ACCRUING TO BOTH PRODUCERS AND CONSUMERS OF COAL FROM SUCH LONG-TERM
CONTRACTS IN THE FOLLOWING TERMS: 

"THIS MAJOR INVESTMENT "IN ELECTRIC UTILITY EQUIPMENT) CAN BE
JEOPARDIZED BY A DISRUPTION IN THE SUPPLY OF COAL.  UTILITIES ARE,
THEREFORE CONCERNED WITH ASSURING THE SUPPLY OF COAL TO SUCH A PLANT
OVER ITS LIFE.  IN ADDITION, UTILITIES DESIRE TO ESTABLISH IN ADVANCE,
AS CLOSELY AS POSSIBLE, WHAT FUEL COSTS WILL BE FOR THE LIFE OF THE
PLANT.  FOR THESE REASONS, UTILITIES TYPICALLY ARRANGE LONG-TERM
CONTRACTS FOR ALL OR AT LEAST A MAJOR PORTION OF THE TOTAL FUEL
REQUIREMENTS FOR THE LIFE OF THE PLANT.  . . . 

"THE LONG-TERM CONTRACTUAL COMMITMENTS ARE NOT ONLY REQUIRED FROM
THE CONSUMER'S STANDPOINT BUT ARE ALSO NECESSARY FROM THE VIEW POINT OF
THE COAL SUPPLIER.  SUCH COMMITMENTS MAY REQUIRE THE DEVELOPMENT OF NEW
MINING CAPACITY.  . . . COAL PRODUCERS HAVE BEEN RELUCTANT TO INVEST IN
NEW MINING CAPACITY IN THE ABSENCE OF LONG-TERM CONTRACTUAL COMMITMENTS
FOR THE MAJOR PORTION OF THE MINE'S CAPACITY.  FUTHERMORE, SUCH LONG
TERM CONTRACTUAL COMMITMENTS ARE OFTEN REQUIRED BEFORE FINANCING FOR
THE DEVELOPMENT OF NEW CAPACITY CAN BE OBTAINED BY THE PRODUCER."  341
F.SUPP., AT 543.  THESE DEVELOPMENTS IN THE PATTERNS OF COAL
DISTRIBUTION AND CONSUMPTION, THE DISTRICT COURT FOUND, HAVE LIMITED
THE AMOUNTS OF COAL IMMEDIATELY AVALIABLE FOR "SPOT"  PURCHASES ON THE
OPEN MARKET, SINCE "(THE GROWING PRACTICE BY COAL PRODUCERS OF
EXPANDING MINE CAPACITY ONLY TO MEET LONG-TERM CONTRACTUAL COMMITMENTS
AND THE GRADUAL DISAPPEARANCE OF THE SMALL TRUCK MINES HAS TENDED TO
LIMIT THE PRODUCTION CAPACITY AVALIABLE FOR SPOT SALES."  IBID. 

BECAUSE OF THESE FUNDAMENTAL CHANGES IN THE STRUCTURE OF THE MARKET
FOR COAL, THE DISTRICT COURT WAS JUSTIFIED IN VIEWING THE STATISTICS
RELIED ON BY THE GOVERNMENT AS INSUFFICIENT TO SUSTAIN ITS CASE. 
EVIDENCE OF PAST PRODUCTION DOES NOT, AS A MATTER OF LOGIC, NECESSARILY
GIVE A PROPER PICTURE OF A COMPANY'S FUTURE ABILITY TO COMPETE.  IN
MOST SITUATIONS, OF COURSE, THE UNSTATED ASSUMPTION IS THAT A COMPANY
THAT HAS MAINTAINED A CERTAIN SHARE OF A MARKET IN THE RECENT PAST WILL
BE IN A POSITION TO DO SO IN THE IMMEDIATE FUTURE.  THUS, COMPANIES
THAT HAVE CONTROLLED SUFFICIENTLY LARGE SHARES OF A CONCENTRATED MARKET
ARE BARRED FROM MERGER BY 7, NOT BECAUSE OF THEIR PAST ACTS, BUT
BECAUSE THEIR PAST PERFORMANCES IMPLY AN ABILITY TO CONTINUE TO
DOMINATE WITH AT LEAST EQUAL VIGOR.  IN MARKETS INVOLVING GROCERIES OR
BEER, AS IN VON'S GROCERY, SUPRA, AND PABST, SUPRA, STATISTICS
INVOLVING ANNUAL SALES NATURALLY INDICATE THE POWER OF EACH COMPANY TO
COMPETE IN THE FUTURE.  EVIDENCE OF THE AMOUNT OF ANNUAL SALES IS
RELEVANT AS A PERDICTION OF FUTURE COMPETITIVE STRENGTH, SINCE IN MOST
MARKETS DISTRIBUTION SYSTEMS AND BRAND RECOGNITION ARE SUCH SIGNIFICANT
FACTORS THAT ONE MAY REASONABLY SUPPOSE THAT A COMPANY WHICH HAS
ATTRACTED A GIVEN NUMBER OF SALES WILL RETAIN THAT COMPETITIVE
STRENGTH. 

IN THE COAL MARKET, AS ANALYZED BY THE DISTRICT COURT, HOWEVER,
STATISTICAL EVIDENCE OF COAL PRODUCTION WAS OF CONSIDERABLY LESS
SIGNIFICANCE.  THE BULK OF THE COAL PRODUCED IS DELIVERED UNDER LONG
TERM REQUIREMENTS CONTRACTS, AND SUCH SALES THUS DO NOT REPRESENT THE
EXERCISE OF COMPETITIVE POWER BUT RATHER THE OBLIBATION TO FULFILL
PREVIOUSLY NEGOTIATED CONTRACTS AT A PREVIOUSLY FIXED PRICE.  THE FOCUS
OF COMPETITION IN A GIVEN TIME FRAME IS NOT ON THE DISPOSITION OF COAL
ALREADY PRODUCED BUT ON THE PROCUREMENT OF NEW LONGTERM SUPPLY
CONTRACTS.  IN THIS SITUATION, A COMPANY'S PAST ABILITY TO PRODUCE IS
OF LIMITED SIGNIFICNACE, SINCE IT IS IN A POSITION TO OFFER FOR SALE
NEITHER ITS PAST PRODUCTION NOR THE BULK OF THE COAL IT IS PRESENTLY
CAPABLE OF PRODUCING, WHICH IS TYPICALLY ALREADY COMMITTED UNDER A LONG
TERM SUPPLY CONTRACT.  A MORE SIGNIFICANT INDICATOR OF A COMPANY'S
POWER EFFECTIVELY TO COMPETE WITH OTHER COMPANIES LIES IN THE STATE OF
A COMPANY'S UNCOMMITTED RESERVES OF RECOVERABLE COAL.  A COMPANY WITH
RELATIVELY LARGE SUPPLIES OF COAL WHICH ARE NOT ALREADY UNDER CONTRACT
TO A CONSUMER WILL HAVE A MORE IMPORTANT INFLUENCE UPON COMPETITION IN
THE CONTEMPORANEOUS NEGOTIATION OF SUPPLY CONTRACTS THAN A FIRM WITH
SMALL RESERVES, EVEN THOUGH THE LATTER MAY PRESENTLY PRODUCE A GREATER
TONNAGE OF COAL.  IN A MARKET WHERE THE AVALIABILITY AND PRICE FOR COAL
ARE SET BY LONG-TERM CONTRACTS RATHER THAN IMMEDIATE OR SHORT-TERM
PURCHASES AND SALES, RESERVES RATHER THAN PAST PRODUCTION ARE THE BEST
MEASURE OF A COMPANY'S ABILITY TO COMPETE. 

THE TESTIMONY AND EXHIBITS IN THE DISTRICT COURT REVEALED THAT
UNITED ELECTRIC'S COAL RESERVE PROSPECTS WERE "UNPROMISING."  341
F.SUPP., AT 559.  UNITED'S RELATIVE POSITION OF STRENGHT IN RESERVES
WAS CONSIDERABLY WEAKER THAN ITS PAST AND CURRENT ABILITY TO PRODUCE. 
WHILE UNITED RANKED FIFTH AMONG ILLINOIS COAL PRODUCERS IN TERMS OF
ANNUAL PRODUCTION, IT WAS 10TH IN RESERVE HOLDINGS, AND CONTROLLED LESS
THAN 1% OF THE RESERVES HELD BY COAL PRODUCERS IN ILLINOIS, INDIANA,
AND WESTERN KENTUCKY.  ID., AT 538.  MANY OF THE RESERVES HELD BY
UNITED HAD ALREADY BEEN DEPELETED AT THE TIME OF TRIAL, FORCING THE
CLOSING OF SOME OF UNITED'S MIDWEST MINES.  /10/  EVEN MORE
SIGNIFICANTLY, THE DISTRICT COURT FOUND THAT OF THE 52,033,304 TONS OF
CURRENTLY MINERABLE RESERVES IN ILLINOIS, INDIANA, AND KENTUCKY
CONTROLLED BY UNITED, ONLY FOUR MILLION TONS HAD NOT ALREADY BEEN
COMMITTED UNDER LONG-TERM CONTRACTS.  UNITED WAS FOUND TO BE FACING THE
FUTURE WITH RELATIVELY DEPLETED RESOURCES AT ITS DISPOSAL, AND WITH THE
VAST MAJORITY OF THOSE RESOURCES ALREADY COMMITTED UNDER CONTRACTS
ALLOWING NO FURTHER ADJUSTMENT IN PRICE.  IN ADDITION, THE DISTRICT
COURT FOUND THAT "UNITED ELECTRIC HAS NEITHER THE POSSIBILITY OF
ACQUIRING MORE (RESERVES) NOR THE ABILITY TO DEVELOP DEEP COAL
RESERVES," AND THUS WAS NOT IN A POSITION TO INCREASE ITS RESERVES TO
REPLACE THOSE ALREADY DEPLETED OR COMMITTED.  ID., AT 560. 

VIEWED IN TERMS OF PRESENT AND FUTURE RESERVE PROSPECTS--, AND THUS IN
TERMS OF PROBABLE FUTURE ABILITY TO COMPETE--, RATHER THAN IN TERMS OF
PAST PRODUCTION, THE DISTRICT COURT HELD THAT UNITED ELECTRIC WAS A FAR
LESS SIGNIFICANT FACTOR IN THE COAL MARKET THAN THE GOVERNMENT
CONTENDED OR THE PRODUCTION STATISTICS SEEMED TO INDICATE.  WHILE THE
COMPANY HAD BEEN AND REMAINED A "HIGHLY PROFITABLE" AND EFFICIENT
PRODUCER OF RELATIVELY LARGE AMOUNTS OF COAL, ITS CURRENT AND FUTURE
POWER TO COMPETE FOR SUBSEQUENT LONG-TERM CONTRACTS WAS SEVERELY
LIMITED BY ITS SCARCE UNCOMMITTED RESOURCES.  /11/  IRRESPECTIVE OF THE
COMPANY'S SIZE WHEN VIEWED AS A PRODUCER, IT WEAKNESS AS A COMPETITIOR
WAS PROPERLY ANALYZED BY THE DISTRICT COURT AND FULLY SUBSTANTIATED
THAT COURT'S CONCLUSION THAT ITS ACQUISITION BY MATERIAL SERVICE WOULD
NOT "SUBSTANTIALLY . . . LESSEN COMPETITION . . . ."  THE VALIDITY OF
THIS CONCLUSION IS NOT UNDERMINED, WE THINK, BY THE THREE-FACETED
ATTACK MADE UPON IT BY THE GOVERNMENT IN THIS COURT--, TO WHICH WE NOW
TURN. 

        III 

FIRST, THE GOVERNMENT URGES THAT THE COURT COMMITTED LEGAL ERROR BY
GIVING UNDUE CONSIDERATION TO FACTS OCCURRING AFTER THE EFFECTIVE
ACQUISITION IN 1959.  /12/  IN FTC V. CONSILIDATED FOODS CORP., 380
U.S. 592, 598, THIS COURT STATED THAT POST-ACQUISITION EVIDENCE TENDING
TO DIMINISH THE PROBABILITY OR IMPACT OF ANITCOMPETITIVE EFFECTS MIGHT
BE CONSIDERED IN A 7 CASE.  SEE ALSO UNITED STATES V. E. I. DU PONT DE
NEMOURS & CO., 353 U.S. 586, 597 ET SEQ., 602 ET SEQ. BUT IN
CONSOLIDATED FOODS, SUPRA, AND IN UNITED STATES V. CONTINENTAL CAN CO.,
378 U.S., AT 463, THE PROBATIVE VALUE OF SUCH EVIDENCE WAS FOUND TO BE
EXTREMELY LIMITED, AND JUDGMENTS AGAINST THE GOVERNMENT WERE IN EACH
INSTANCE REVERSED IN PART BECAUSE "TOO MUCH WEIGHT" HAD BEEN GIVEN TO
POST-ACQUISITION EVENTS.  THE NEED FOR SUCH A LIMITATION IS OBVIOUS. 
IF A DEMONSTRATION THAT NO ANTI-COMPETITIVE EFFECTS HAD OCCURRED AT THE
TIME OF TRIAL OR OF JUDGMENT CONSTITUTED A PERMISSIBLE DEFENSE TO A 7
DIVESTITURE SUIT, VIOLATORS COULD STAVE OFF SUCH ACTIONS MERELY BY
REFRAINING FROM AGRESSIVE OR ANTICOMPETITIVE BEHAVIOR WHEN SUCH A SUIT
WAS THREATENED OR PENDING.  /13/ 

FURTHERMORE, THE FACT THAT NO CONCRETE ANTICOMPETITIVE SYMPTOMS HAVE
OCCURRED DOES NOT ITSELF IMPLY THAT COMPETITION HAS NOT ALREADY BEEN
AFFECTED, "FOR ONCE THE TWO COMPANIES ARE UNITED NO ONE KNOWS WHAT THE
FATE OF THE ACQUIRED COMPANY AND ITS COMPETITORS WOULD HAVE BEEN BUT
FOR THE MERGER."  FTC V. CONSOLIDATED FOODS, SUPRA, AT 598.  AND, MOST
SIGNIFICANTLY, 7 DEALS IN "PROBABILITIES, NOT CERTAINTIES," BROWN SHOE
V. UNITED STATES, 370 U.S., AT 323, AND THE MERE NONOCCURRENCE OF A
SUBSTANTIAL LESSENING OF COMPETITION IN THE INTERVAL BETWEEN
ACQUISITION AND TRIAL DOES NOT MEAN THAT NO SUBSTANTIAL LESSENING WILL
DEVELOP THEREAFTER; THE ESSENTIAL QUESTION REMAINS WHETHER THE
PROBABILITY OF SUCH FUTURE IMPACTS EXISTS AT THE TIME OF TRIAL. 

IN THIS CASE, THE DISTRICT COURT RELIED ON EVIDENCE RELATING TO
CHANGES IN THE PATTERNS AND STRUCTURE OF THE COAL INDUSTRY AND IN
UNITED ELECTRIC'S COAL RESERVE SITUATION AFTER THE TIME OF ACQUISITION
IN 1959.  SUCH EVIDENCE COULD NOT REFLECT A POSITIVE DECISION ON THE
PART OF THE MERGED COMPANIED TO DELIBERATLEY BUT TEMPORARILY REFRAIN
FROM ANTICOMPETITIVE ACTIONS, NOR COULD IT REASONABLY BE THOUGHT OT
REFLECT LESS ACTIVE COMPETITION THAN THAT WHICH MIGHT HAVE OCCURRED HAD
THERE NOT BEEN AN ACQUISITION IN 1959.  AS THE DISTRICT COURT
CONVINCINGLY FOUND, THE TREND TOWARD INCREASED DEPENDENCE ON UTILITIES
AS CONSUMERS OF COAL AND TOWARD THE NEAR-EXCLUSIVE USE OF LONG-TERM
CONTRACTS WAS THE PRODUCT OF INEVITABLE PRESSURES ON THE COAL INDUSTRY
IN ALL PARTS OF THE COUNTRY.  AND, UNLIKE EVIDENCE SHOWING ONLY THAT NO
LESSENING OF COMPETITION HAS YET OCCURRED, THE DEMONSTRATION OF WEAK
COAL RESOURCES NECESSARILY AND LOGICALLY IMPLIED THAT UNITED ELECTRIC
WAS NOT MERELY DISINCLINED BUT UNABLE TO COMPETE EFFECTIVELY FOR FUTURE
CONTRACTS.  SUCH EVIDENCE WENT DIRECTLY TO THE QUESTION OF WHETHER
FUTURE LESSENING OF COMPETITION WAS PROBABLE, AND THE DISTRICT COURT
WAS FULLY JUSTIFIED IN USING IT. 

SECOND, THE GOVERNMENT CONTENDS THAT RELIANCE ON DEPLETED AND
COMMITTED RESOURCES IS ESSENTIALLY A "FAILING COMPANY" DEFENSE WHICH
MUST MEET THE STRICT LIMITS PLACED ON THAT DEFENSE BY THIS "COURT'S
DECSISIONS IN UNITED STATES V. THIRD NATIONAL BANK IN NASHVILLE, 390
U.S. 171; CITIZEN PUBLISHING CO. V. UNITED STATES, 394 U.S. 131; AND
UNITED STATES V. GREATER BUFFALO PRESS, 402 U.S. 549.  THE FAILING
COMPANY DOCTRINE, RECOGNIZED AS A VALID DEFENSE TO A 7 SUIT IN BROWN
SHOE, SUPRA, AT 346, WAS FIRST ANNOUNCED BY THIS COURT IN INTERNATIONAL
SHOE CO. V. FTC, 280 U.S. 291, AND WAS PRESERVED BY EXPLICIT REFERENCES
IN THE LEGISLATIVE HISTORY OF THE MODERN AMENDMENTS TO 7.  H.R. REP.
NO. 1191, 81ST CONG., 1ST SESS., 6 (1949); S. REP. NO. 1775, 81ST
CONG., 2D SESS., 7 (1950).  A COMPANY INVOKING THE DEFENSE HAS THE
BURDEN /14/  OF SHOWING THAT ITS "RESOURCES (WERE) SO DEPLETED AND THE
PROSPECT OF REHABILITATION SO REMOTE THAT IT FACED THE GRAVE
PROBABILITY OF A BUSINESS FAILURE . . .," INTERNATIONAL SHOE, SUPRA, AT
302, AND FURTHER THAT IT TRIED AND FAILED TO MERGE WITH A COMPANY OTHER
THAN THE ACQUIRING ONE, CITIZEN PUBLISHING CO., SUPRA, AT 138; GREATER
BUFFALO PRESS, SUPRA, AT 555. 

THE GOVERNMENT ASSERTS THAT UNITED ELECTRIC WAS A HEALTHY AND
THRIVING COMPANY AT THE TIME OF THE ACQUISITION AND COULD NOT BE
CONSIDERED ON THE BRINK OF FAILURE, AND ALSO THAT THE APPELLEES HAVE
NOT SHOWN THAT MATERIAL SERVICE WAS THE ONLY AVAILABLE ACQUIRING
COMPANY.  THESE CONSIDERATIONS WOULD BE SIGNIFICANT IF THE DISTRICT
COURT HAD FOUND NO VIOLATION OF 7 BY REASON OF UNITED ELECTRIC'S BEING
A FAILING COMPANY, BUT THE DISTRICT COURT'S CONCLUSION WAS NOT, AS THE
GOVERNMENT SUGGESTS, IDENTICAL WITH OR EVEN ANALOGOUS TO SUCH A
FINDING.  THE FAILING-COMPANY DEFENSE PRESUPPOSES THAT THE EFFECT ON
COMPETITION AND THE "LOSS TO (THE COMPANY'S) STOCKHOLDERS AND INJURY TO
THE COMMUNITIES WHERE ITS PLANTS WERE OPERATED," INTERNATIONAL SHOE,
SUPRA, AT 302, WILL BE LESS IF A COMPANY CONTINUES TO EXIST EVEN AS A
PARTY TO A MERGER THAN IF IT DISAPPEARS ENTIRELY FROM THE MARKET.  IT
IS, IN A SENSE, A "LESSER OF TWO EVILS" APPROACH, IN WHICH THE POSSIBLE
THREAT TO COMPETITION RESULTING FROM AN ACQUISITION IS DEEMED
PREFERABLE TO THE ADVERSE IMPACT ON COMPETITION AND OTHER LOSSES IF THE
COMPANY GOES OUT OF BUSINESS.  /15/  THE APPELLEES' DEMONSTRATION OF
UNITED'S WEAK RESERVES POSITION, HOWEVER, PROVED AN ENTIRELY DIFFERENT
POINT.  RATHER THAN SHOWING THAT UNITED WOULD HAVE GONE OUT OF BUSINESS
BUT FOR THE MERGER WITH MATERIAL SERVICE, THE FINDING OF INADEQUATE
RESERVES WENT TO THE HEART OF THE GOVERNMENT'S STATISTICAL PRIMA FACIE
CASE BASED ON PRODUCTION FIGURES AND SUBSTANTIATED THE DISTRICT COURT'S
CONCLUSION THAT UNITED ELECTRIC, EVEN IF IT REMAINED IN THE MARKET, DID
NOT HAVE SUFFICIENT RESERVES TO COMPETE EFFECTIVELY FOR LONG-TERM
CONTRACTS.  THE FAILING-COMPANY DEFENSE IS SIMPLY INAPPOSITE TO THIS
FINDING AND THE FAILURE OF THE APPELLEES TO MEET THE PREREQUISITES OF
THAT DOCTRINE DID NOT DETRACT FROM THE VALIDITY OF THE COURT'S
ANALYSIS. 

FINALLY, THE GOVERMENT CONTENDS THAT THE FACTUAL UNDERPINNING OF THE
DISTRICT COURT'S OPINION WAS NOT SUPPORTED BY THE EVIDENCE CONTAINED IN
THE RECORD, AND SHOULD BE RE-EVALUATED BY THIS COURT.  THE FINDINGS AND
CONCLUSIONS OF THE DISTRICT COURT ARE, OF COURSE, GOVERNED BY THE
"CLEARLY ERRONEOUS" STANDARD OF FED. RULE CIV. PROC. 52 (A) JUST AS
FULLY ON DIRECT APPEAL TO THIS COURT AS WHEN A CIVIL CASE IS BEING
REVIEWED BY A COURT OF APPEALS.  THE RECORD IN THIS CASE CONTAINS
THOUSNADS OF PAGES OF TRANSCRIPT AND HUNDREDS OF EXHIBITS.  LITTLE
PURPOSE WOULD BE SERVED BY DISCUSSING IN DETAIL EACH OF THE
GOVERNMENT'S SPECIFIC FACTUAL CONTENTIONS.  SUFFICE IT TO SAY THAT WE
FIND THE CONTROLLING FINDINGS AND CONCLUSIONS CONTAINED IN THE DISTRICT
COURT'S CAREFUL AND LENGTHY OPINION TO BE SUPPORTED BY THE EVIDENCE IN
THE RECORD AND NOT CLEARLY ERRONEOUS. 

ONE FACTUAL CLAIM BY THE GOVERNMENT, HOWEVER, GOES TO THE HEART OF
THE REASONING OF THE DISTRICT COURT AND THUS IS WORTHY OF EXPLICIT NOTE
HERE.  THE GOVERNMENT ASSERTS THAT THE PAUCITY OF UNITED ELECTRIC'S
COAL RESERVES COULD NOT HAVE THE SIGNIFICANCE PERCEIVED BY THE DISTRICT
COURT, SINCE ALL COMPANIES ENGAGED IN EXTRACTING MINERALS AT SOME POINT
DEPLETE THEIR RESERVES AND THEN ACQUIRE NEW RESERVES OR THE NEW
TECHNOLOGY REQUIRED TO EXTRACT MORE MINERALS FROM THEIR EXISTING
HOLDINGS.  UNITED ELECTRIC, THE GOVERNMENT SUGGESTS, COULD AT ANY POINT
EITHER PURCHASE NEW STRIP RESERVES OR ACQUIRE THE EXPERTISE TO RECOVER
CURRENTLY HELD DEEP RESERVES. 

BUT THE DISTRICT COURT SPECIFICALLY FOUND NEW STRIP RESERVES NOT TO
BE AVALIABLE: "EVIDENCE WAS PRESENTED AT TRIAL BY EXPERTS, BY STATE
OFFICIALS, BY INDUSTRY WITNESSES AND BY THE GOVERNMENT ITSELF
INDICATING THAT ECONOMICALLY MINEABLE STRIP RESERVES THAT WOULD PERMIT
UNITED ELECTRIC TO CONTINUE OPERATIONS BEYOND THE LIFE OF ITS PRESENT
MINES ARE NOT AVALIABLE.  THE GOVERNMENT FAILED TO COME FORWARD WITH
ANY EVIDENCE THAT SUCH RESERVES ARE PRESENTLY AVALIABLE."  341 F.
SUPP., AT 559.  IN ADDITION, THERE WAS CONSIDERABLE TESTIMONY AT TRIAL,
APPARENTLY CREDITED BY THE DISTRICT COURT, INDICATING THAT UNITED
ELECTRIC AND OTHERS HAD TRIED TO FIND ADDITIONAL STRIP RESERVES NOT
ALREADY HELD FR COAL PRODUCTION, AND HAD BEEN LARGELY UNABLE TO DO SO. 

MOREOVER, THE HYPOTHETICAL POSSIBILITY THAT UNITED ELECTRIC MIGHT IN
THE FUTURE ACQUIRE THE EXPERTISE TO MINE DEEP RESERVES PROVES NOTHING-
, OR TOO MUCH.  AS THE GOVERNMENT POINTED OUT IN ITS BRIEF AND AT ORAL
ARGUMENT, IN RECENT YEARS A NUMBER OF COMPANIES WITH NO PRIOR
EXPERIENCE IN EXTRACTING COAL HAVE PURCHASED COAL RESERVES AND ENTERED
THE COAL PRODUCTION BUSINESS IN ORDER TO DIVERSIFY AND COMPLEMENT THEIR
CURRENT OPERATIONS.  THE MERE POSSIBILITY THAT UNITED ELECTRIC, IN
COMMON WITH ALL OTHER COMPANIES WITH THE INCLINAITON AND THE CORPORATE
TREASURY TO DO SO, COULD SOME DAY EXPAND INTO AN ESSENTIALLY NEW LINE
OF BUSINESS DOES NOT DEPRECIATE THE VALIDITY OF THE CONCLUSION THAT
UNITED ELECTRIC AT THE TIME OF THE TRIAL DID NOT HAVE THE POWER TO
COMPETE ON A SIGNIFICANT SCALE FOR THE PROCUREMENT OF FUTURE LONG-TERM
CONTRACTS, NOR DOES IT VEST IN THE PRODUCTION STATISTICS RELIED ON BY
THE GOVERNMENT MORE SIGNIFICANCE THAN ASCRIBED TO THEM BY THE DISTRICT
COURT. 

        IV 

IN ADDITION TO CONTENDING THAT THE DISTRICT COURT ERRED IN FINDING
THAT THE ACQUISITION OF UNITED ELECTRIC WOULD NOT SUBSTANTIALLY LESSEN
COMPETITION, THE GOVERNMENT URGES US TO REVIEW THE COURT'S
DETERMINATIONS OF THE PROPER PRODUCT AND GEOGRAPHIC MARKETS.  THE
GOVERNMENT SUGGESTS THAT WHILE THE "ENERGY MARKET" MIGHT HAVE BEEN AN
APPROPRIATE "LINE OF COMMERCE," COAL ALSO HAD SUFFICIENT "PRACTICAL
INDICIA" AS A SEPARATE "LINE OF COMMERCE" TO QUALIFY AS AN INDEPENDENT
AND CONSISTENT SUBMARKET.  CF. UNITED STATES V. CONTINENTAL CAN CO.,
378 U.S., AT 456 - 457.  IT ALSO SUGGESTS THAT IRRESPECTIVE OF THE
VALIDITY OF THE CRITERIA ADOPTED BY THE DISTRICT COURT IN SELECTING ITS
10 GEOGRAPHIC MARKETS, COMPETITION BETWEEN UNITED ELECTRIC AND MATERIAL
SERVICE WITHIN THE LARGER ALTERNATIVE GEOGRAPHIC MARKETS CLAIMED BY THE
GOVERNMENT ESTABLISHED THOSE AREAS AS A PERMISSIBLE "SECTION OF THE
COUNTRY" WITHIN THE MEANING OF 7. 

WHILE UNDER NORMAL CIRCUMSTANCES A DELINEATION OF PROPER GEOGRAPHIC
AND PRODUCT MARKETS IS A NECESSARY PRECONDITION TO ASSESSMENT OF THE
PROBABILITIES OF A SUBSTANTIAL EFFECT ON COMPETITION WITHIN THEM, IN
THIS CASE WE NEVERTHELESS AFFIRM THE DISTRICT COURT'S JUDGMENT WITHOUT
REACHING THESE QUESTIONS.  BY DETERMINING THAT THE AMOUNT AND
AVALIABILITY OF USABLE RESERVES, AND NOT THE PAST ANNUAL PRODUCTION
FIGURES RELIED ON BY THE GOVERNMENT, WERE THE PROPER INDICATORS OF
FUTURE ABILITY TO COMPETE, THE DISTRICT COURT WHOLLY REJECTED THE
GOVERNMENT'S PRIMA FACIE CASE.  IRRESPECTIVE OF THE MARKETS WITHIN
WHICH THE ACQUIRING AND THE ACQUIRED COMPANY MIGHT BE VIEWED AS
COMPETITIORS FOR PURPOSES OF THIS 7 SUIT, THE GOVERNMENT'S STATISTICAL
PRESENTATION SIMPLY DID NOT ESTABLISH THAT A SUBSTANTIAL LESSENING OF
COMPETITION WAS LIKELY TO OCCUR IN ANY MARKET.  BY CONCLUDING THAT
"DIVESTITURE (WOULD NOT) BENEFIT COMPETITION EVEN WERE THIS COURT TO
ACCEPT THE GOVERNMENT'S UNREALISTIC PRODUCT AND GEOGRAPHIC MARKET
DEFINITIONS," 341 F.SUPP.  AT 560, THE DISTRICT COURT RENDERED
SUPERLOUS ITS FURTHER DETERMINATIONS THAT THE GOVERNMENT ALSO ERRED IN
THIS CHOICE OF RELEVANT MARKETS.  SINCE WE AGREE WITH THE DISTRICT
COURT THAT THE GOVERNMENT'S RELIANCE ON PRODUCTION STATISTICS IN THE
CONTEXT OF THIS CASE WAS INSUFFICIENT, IT FOLLOWS THAT THE JUDGMENT
BEFORE US MAY BE AFFIRMED WITHOUT REACHING THE ISSUES OF GEOGRAPHIC AND
PRODUCT MARKETS. 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  UNITED ELECTRIC ALSO HAD COAL-MINING OPERATIONS IN UTAH AND
OTHER WESTERN STATES.  THE GOVERNMENT HAS NOT CONTENDED, HOWEVER, THAT
THESE HOLDINGS ARE OF ANY RELEVANCE IN THIS CASE. 

/2/  SECTION 7 OF THE CLAYTON ACT READS IN PERTINENT PART AS
FOLLOWS: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

/3/  TESTIMONY AT TRIAL INDICATED THAT THE EASTERN INTERIOR COAL
PROVINCE--, THE AREA OF COAL PRODUCTION UPON WHICH THE EASTERN COAL
PROVINCE SALES AREA WAS BASED--, WAS ORIGINALLY NAMED BY UNITED STATES
GEOLOGICAL SURVEY MAPS OF THE COALFIELDS IN THE UNITED STATES AND
DESCRIBED ONE PORTION OF A SEQUENCE OF COAL-BEARING ROCK FORMATIONS
KNOWN GEOLOGICALLY AS THE PENNSYLVANIA SYSTEM.  THE SALES AREA OF THE
EASTERN INTERIOR COAL PROVINCE WAS DERIVED FROM THE ASSUMPTION,
ACKNOWLEDGED IN THE TRIAL COURT'S OPINION, THAT THE HIGH COSTS OF
TRANSPORTING COAL--, WHICH MAY AMOUNT TO 40% OF THE PRICE OF DELIVERED
COAL--, WILL INEVITABLY GIVE PRODUCERS OF COAL A CLEAR COMPETITIVE
ADVANTAGE IN SALES IN THE IMMEDIATE AREAS OF THE MINES. 

/4/  THE TRIAL COURT FOUND THAT COMMONWEALTH EDISON, A LARGE PRIVATE
ELECTRIC UTILITY WITH GENERATION FACILITIES IN MANY PARTS OF ILLINOIS,
AND THE METROPOLITAN CHICAGO INTERSTATE AIR QUALITY CONTROL REGION
CONSTITUTED SEPARATE AND UNIQUE GEOGRAPHIC REGIONS.  COMMONWEALTH
EDISON WAS FOUND TO HAVE UNIQUE ATTRIBUTES BECAUSE OF THE GREAT SIZE OF
ITS COAL CONSUMPTION REQUIREMENTS, ITS DISTINCTIVE DISTRIBUTION
PATTERNS, AND ITS EXTENSIVE COMMITMENT TO AIR POLLUTION PROGRAMS AND
THE DEVELOPMENT OF NUCLEAR ENERGY.  THE CHICAGO CONTROL REGION, A
CONGRESSIONALLY DESIGNATED AREA CONSISTING OF SIX COUNTRIES IN ILLINOIS
AND TWO IN INDIANA, WAS DISTINGUISHED FROM OTHER GEOGRAPHIC MARKETS
BECAUSE OF THE IMPACT OF EXISTING AND ANTICIPATED AIR POLLUTION
REGULATIONS WHICH WOULD CREATE SPECIAL PROBLEMS IN THE COMPETITION FOR
COAL SALES CONTRACTS.  341 F. SUPP. 534, 557. 

/5/  THE FIGURES FOR 1967 REFLECT THE IMPACT ON MARKET CONCENTRATION
OF THE ACQUISITION INVOLVED HERE. 

/6/  THE FIGURES DEMONSTRATING THE DEGREE OF CONCENTRATION IN THE
TWO COAL MARKETS CHOSEN BY THE GOVERNMENT WERE ROUGHLY COMPARABLE TO
THOSE IN UNITED STATES V. VON'S GROCERY CO., 384 U.S. 270, WHERE THE
TOP FOUR FIRMS IN THE MARKET CONTROLLED 24.4% OF THE SALES, THE TOP
EIGHT 40.9%, AND THE TOP 12 47.8%.  SEE ID., AT 281 (WHITE, J.,
CONCURRING).  SEE ALSO UNITED STATES V. PABST BREWING CO., 384 U.S.
546, 551, WERE THE TOP FOUR PRODUCERS OF BEER IN WISCONSIN WERE FOUND
TO CONTROL OF THE MARKET, AND THE TOP 10 IN THE NATION AND THE LOCAL
THREE-STATE AREA TO CONTROL 45.06% AND 58.93%, RESPECTIVELY.  THE
STATISTICS IN THE PRESENT CASE APPEAR TO REPRESENT A LESS ADVANCED
STATE OF CONCENTRATION THAN THOSE INVOLVED IN UNITED STATES V. ALUMINUM
CO. OF AMERICA, 377 U.S. 271, 279, WHERE THE TWO LARGEST FIRMS HELD 50%
OF THE MARKET, AND THE TOP FIVE AND THE TOP NINE CONTROLLED,
RESPECTIVELY, 76% AND 95.7%:  AND IN UNITED STATES V. PHILADELPHIA
NATIONAL BANK, 374 U.S. 321, 365, WHERE THE TWO LARGEST BANKS
CONTROLLED 44% OF THE PRE-MERGER MARKET. 

/7/  THE PERCENTAGE INCREASE IN CONCENTRATION ASSERTED HERE WAS THUS
ANALOGOUS TO THAT FOUND IN VON'S GROCERY, SUPRA, WHERE THE
CONCENTRATION AMONG THE TOP FOUR, EIGHT,A ND 12 FIRMS WAS INCREASED,
RESPECTIVELY, BY 18.0%, 7.6%, AND 2.5% AS A RESULT OF THE MERGER
INVALIDATED THERE.  IN PHILADEPPHIA BANK, SUPRA, THE 34% INCREASE IN
CONCENTRATION IN THE TWO LARGEST FIRMS FROM 44% TO 59% WAS FOUND TO BE
CLEARLY SIGNIFICANT.  374 U.S., AT 365. 

/8/  THE 1959 ILLINOIS FIGURE OF 23.2% WAS ASSERTED BY THE
GOVERNMENT TO BE COMPARABLE TO THE 23.94% SHARE OF THE WISCONSIN BEER
MARKET FOUND TO BE SIGNIFICANT IN PABST, SUPRA, AND THE 25% SHARE
CONTROLLED BY THE MERGED COMPANY IN UNITED STATES V. CONTINENTAL CAN
CO., 378 U.S. 441, 461.  THE PROVINCE FIGURE OF 12.4% WAS COMPARED WITH
THE SHARES HELD BY THE MERGED COMPANIES IN VON'S GROCERY (7.5%), AND IN
THE PABST NATIONAL (4.49%) AND THREE-STATE (11.32%) MARKETS. 

/9/  IN 1968, ELECTRIC UTILITIES ACCOUNTED FOR 59.09% OF UNITED
STATES COAL CONSUMPTION, COKE PLANTS 18.20% CEMENT MILLS 1.88%, OTHER
MANUFACTURING (INCLUDING STEEL AND ROLLING MILLS) 17.70%, AND RETAIL
AND MISCELLANEOUS CONSUMERS 3.14%. 

/10/  THE DISTRICT COURT FOUND THAT WHILE UNITED ELECTRIC HELD HELD
SIX MINES OPERATING IN THE MIDWEST IN 1948, IT HAD OPENED ONLY THREE
NEW ONES SINCE THEN AND FOUR HAD CLOSED BECAUSE OF EXHAUSTION OF
RESERVES.  THE COURT FOUND THAT THE EVIDENCE SHOWED THAT RESERVES IN
TWO OTHER MINES WOULD SOON BE DEPLETED, AND THE APPELLEES INFORM US IN
THEIR BRIEFS THAT THESE EVENTS HAVE ALREADY OCCURRED. 

/11/  AS AN EXAMPLE OF THE IMPACT OF DEPLETED OR COMMITTED RESERVES
ON A COMPANY'S ABILITY TO COMPETE FOR LONG-TERM CONTRACTS, THE DISTRICT
COURT NOTED THAT A NUMBER OF REQUIREMENTS CONTRACTS SIGNED BY UNITED
ELECTRIC TO SUPPLY COAL TO ELECTRIC UTILITIES WERE BACKED UP BY
RESERVES BELONGING TO FREEMAN AND "COULD NOT HAVE BEEN OBTAINED WITHOUT
THAT GUARANTEE" BECAUSE OF THE UTILITIES' FEAR THAT THE CONTRACT
OBLIGATION COULD NOT OTHERWISE BE FULFILLED.  341 F.SUPP., AT 559. 
/12/  THE COURT'S RELIANCE ON SUCH FACTS AND THE ABSENCE OF SPECIFIC
FINDINGS OF FACT CONCERNING THE COMPETITIVE SITUATION IN 1959, AT WHICH
POINT BOTH SIDES NOW AGREE THE ACQUISITION TOOK PLACE, MAY HAVE BEEN
ENGENDERED BY THE GOVERNMENT'S APPARENT INCONSISTENCY IN ITS POSITION
CONCERNING THE CRITICAL DATE.  CERTAIN OF THE APPELLEES'  PROPOSED
FINDINGS OF FACT CONCERNING UNITED ELECTRIC'S RESOURCES IN 1959 AND ITS
ATTEMPTS TO INCREASE ITS DEPLETED HOLDINGS WERE TERMED "IRRELEVANT" BY
THE GOVERNMENT AT THE TRIAL. 

/13/  THE MERE NONCCURRENCE OF ANTICOMPETITIVE EFFECTS FROM A MERGER
WOULD, OF COURSE, MERELY POSTPONE RAHTER THAN PRECLUDE A DIVESTITURE
SUIT.  THIS COURT INDICATED IN UNITED STATES V. E.I. DU PONT DE NEMOURS
& CO., 353 U.S. 586, 597, THAT A MERGER MAY BE ATTACKED AB INITIO LONG
AFTER ITS CULMINATION IF EFFECT ON COMPETITION NOT APPARENT IMMEDIATELY
AFTER THE MERGER SUBSEQUENTLY APPEARS, SINCE 7 WAS DESIGNED TO ARREST
THE CREATION OF MONOPOLIES"' IN THEIR INCIPIENCY'" AND "'INCIPIENCY' .
. . DENOTES NOT THE TIME THE STOCK WAS ACQUIRED, BUT ANY TIME WHEN THE
ACQUISITION THREATENS TO RIPEN INTO A PROHIBITED EFFECT.... "  SEE ALSO
FTC V. CONSOLIDATED FOODS CORP., 380 U.S. 592, 598.  THE SCOPE THIS
"TIME OF SUIT"  CONCEPT GIVES TO THE GOVERNMENT IN ATTACKING MERGERS
UNDER 7 IS DISCUSSED IN ORRICK, THE CLAYTON ACT: THEN AND NOW, 24 ABA
ANTITRUST SECTION 44 (1964); SUBCOMMITTEE ON SECTION 7, THE BACKWARD
SWEEP THEORY AND THE OLIGOPOLY PROBLEM 32 ABA ANTITRUST L.J. 306
(1966).  IN THE CONTEXT OF THE PRESENT CASE, THE "TIME OF SUIT" RULE
COUPLED WITH THE LIMITED WEIGHT GIVEN TO POST-MERGER EVIDENCE OF NO
ANTICOMPETITIVE IMPACT TENDS TO GIVE THE GOVERNMENT A "HEADS-I-WIN,
TAILS-YOU-LOSE" ADVANTAGE OVER A 7 DEFENDANT:  POST-MERGER EVIDENCE
SHOWING A LESSENING OF COMPETITION MAY CONSTITUTE AN "INCIPIENCY" ON
WHICH TO BASE A DIVESTITURE SUIT, BUT EVIDENCE SHOWING THAT SUCH
LESSENING HAS NOT, IN FACT, OCCURRED CANNOT BE ACCORED "TOO MUCH
WEIGHT." 

/14/  IN CITIZEN PUBLISHING CO., V. UNITED STATES, 394 U.S. 131, 138
- 139, "(THE BURDEN OF PROVING THAT THE CONDITIONS OF THE FAILING
COMPANY DOCTRINE HAVE BEEN SATISFIED" WAS FOUND TO BE "ON THOSE WHO
SEEK REFUGE UNDER IT." 

/15/  ALTERNATIVE RATIONALES FOR THE FAILING-COMPANY DEFENSE ARE
DISCUSSED IN BOK, SECTION 7 OF THE CLAYTON ACT AND THE MERGING OF LAW
AND ECONOMICS, 74 HARV. L. REV. 226, 339 - 347 (1960):  COMMENT,
"SUBSTANTIALLY TO LESSEN COMPETITION ... ": CURRENT PROBLEMS OF
HORIZONTAL MERGERS, 68 YALE L. J. 1627, 1662 - 1668 (1959). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, AND MR. JUSTICE MARSHALL CONCUR, DISSENTING. 

IN THIS CASE THE UNITED STATES APPEALS FROM A DISTRICT COURT
DECISION /1/  UPHOLDING THE ACQUISITION OF STOCK IN UNITED ELECTRIC
COAL COMPANIE BY MATERIAL SERVICE CORP. AND ITS SUCCESSOR, GENERAL
DYNAMICS CORP., AGAINST A CHALLENGE THAT THE ACQUISITION VIOLATED 7 OF
THE CLAYTON ACT.  /2/  THE UNITED STATES INSTITUTED THIS CIVIL ANTI
TRUST ACTION ON THE CLAIM THAT THE ACQUISITION MAY SUBSTANTIALLY LESSEN
COMPETITION IN THE ILLINOIS AND EASTERN INTERIOR COAL PROVINCE (EICP)
SALES AREA COAL MARKETS.  AFTER TRIAL ON THE MERITS THE DISTRICT COURT
REJECTED THE GOVERNMENT'S PROPOSED PRODUCT AND GEOGRAPHIC MARKETS AND
DISMISSED THE ACTION, CONCLUDING THAT THE GOVERNMENT HAD FAILED TO SHOW
A SUBSTANTIAL LESSENING OF COMPETITION IN THE MARKETS THE COURT DEEMED
RELEVANT. 

        I 

THE COMBINATION HERE CHALLENGED IS THE UNION OF TWO MAJOR ILLINOIS
COAL PRODUCERS--, FREEMAN COAL MINING CORP. AND UNITED ELECTRIC COAL
COMPANIES--, UNDER THE ULTIMATE CORPORATE CONTROL OF GENERAL DYAMICS
CORP. MATERIAL SERIVCE CORP. ACQUIRED ALL THE STOCK OF FREEMAN COAL IN
1942 AND BEGAN TO ACQUIRE UNITED ELECTRIC STOCK IN 1954.  BY 1959,
HOLDINGS IN UNITED REACHED 34%, AND MATERIAL SERVICE REQUESTED AND
RECEIVED REPRESENTATION ON UNITED'S BOARD OF DIRECTORS.  AS A RESULT,
FREEMAN'S PRESIDENT WAS ELECTED CHAIRMAN OF UNITED'S EXECUTIVE
COMMITTEE.  WITH THE AFFILIATION OF FREEMAN AND UNITED ELECTRIC THUS
FORMALIZED IN 1959, COMMON CONTROL OF THE TWO COAL COMPANIES WAS
ACHIEVED."  341 F. SUPP. 534, 537 (1972). 

GENERAL DYNAMICS ACQUIRED MATERIAL SERVICE CORP. IN 1959 AND MOVED
TO SOLIDIFY THE UNION OF FREEMAN AND UNITED BY ENGAGING IN CONTINUED
PURCHASES OF UNITED'S STOCK THROUGHOUT THE EARLY 1960'S.  BY 1966 IT
HELD NEARLY TWO-THIRDS OF UNITED'S OUTSTANDING SHARES AND A SUCCESSFUL
TENDER OFFER INCREASED THE HOLDINGS TO OVER 90%.  IN EARLY 1967 UNITED
BECAME A WHOLLY OWNED SUBSIDIARY OF GENERAL DYNAMICS.  WITH THE 1959
UNION OF FREEMAN AND UNITED ELECTRIC THUS COMPLETED, THE GOVERNMENT
FILED THIS ACTION CHALLENGING THE LEGALITY OF THE COMBINATION WHICH
PRODUCED IN GENERAL DYNAMICS THE NATION'S FIFTH LARGEST COAL PRODUCER
WITH TOTAL ANNUAL PRODUCTION OF OVER 14 MILLION TONS. 

        II 

COMBINAITON MUST BE TESTED, PRESCRIBES SUCH COMBINATIONS "WHERE IN ANY
LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH
ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION . . . ."  /3/
DETERMINAITON OF THE RELEVANT MARKET IS A NECESSARY PREDICATE TO A
FINDING OF A VIOLATION OF THE CLAYTON ACT . . . ."  UNITED STATES V.
E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, 593 (1957).  THE COURT
BELOW CONCLUDED THAT "THE ENERGY MARKET IS THE APPROPRIATE LINE OF
COMMERCE FOR TESTING THE COMPETITIVE EFFECT OF THE UNITED ELECTRIC
FREEMAN COMBINAITON."  341 F. SUPP., AT 555.  THE COURT REJECTED THE
GOVERNMENT'S HYPOTHESIS OF COAL AS A SUBMARKET FOR ANTITRUST PURPOSES A
"UNTENABLE," FINDING THAT UNITED STATES V. CONTINENTAL CAN CO., 378
U.S. 441 (1964), "COMPELS) THIS COURT TO CONCLUDE THAT SINCE COAL
COMPETES WITH GAS, OIL, URANIUM AND OTHER FORMS OF ENERGY, THE RELEVANT
LINE OF COMMERCE MUST ENCOMPASS INTERFUEL COMPETITION."  341 F. SUPP.,
AT 556. 

I READ CONTINENTAL CAN TO IMPORT NO SUCH COMPULSION.  THAT CASE
INVOLVED THE ACQUISITION OF THE NATION'S THIRD LARGEST PRODUCER OF
GLASS CONTAINERS, HAZEL-ATLAS GLASS CO., BY CONTIENTAL CAN, THE
COUNTRY'S SECOND LARGEST PRODUCER OF METAL CONTAINERS.  THE DISTRICT
COURT FOUND INTERINDUSTRY COMPETITION AN INSUFFICIENT PREDICATE FOR
FINDING A 7 LINE OF COMMERCE EMBRACING BOTH CANS AND BOTTLES.  WE
REVERSED, FINDING THAT INTERINDUSTRY COMPETITION MANDATED "TREATING AS
A RELEVANT PRODUCT MARKET THE COMBINED GLASS AND METAL CONTAINER
INDUSTRIES AND ALL END USES FOR WHICH THEY COMPETE."  378 U.S. AT 457
(EMPHASIS ADDED).  BUT THAT INTERINDUSTRY MARKET WAS ONLY ONE OF
SEVERAL LINES OF COMMERCE IN THAT CASE.  BOTH PARTIES CONCEDED THAT
"THE CAN INDUSTRY AND THE GLASS CONTAINER INDUSTRY WERE RELEVANT LINES
OF COMMERCE."  ID., AT 447.  SINCE 7 PROSCRIBES ACQUISITIONS WHICH MAY
INVOLVE A SUBSTANTIAL LESSENING OF COMPETITION IN ANY LINE OF COMMERCE,
THE ABSENCE OF ANTICOMPETITIVE EFFECTS IN EITHER THE BOTTLE OR CAN
MARKETS COULD NOT SUSTAIN THE ACQUISITION SINCE THERE EXISTED A MARKET-
, THE GLASS/METAL CONTAINER MARKET GIVEN RECOGNITION IN THIS COURT--,
IN WHICH THE PROHIBITED EFFECT WAS PRESENT. 

THE DISTRICT COURT HERE FOUND AN ENERGY MARKET IN WHICH THE
COMBINATION DID NOT WORK THE PROHIBITED EFFECT.  WHATEVER THE
CORRECTNESS OF THAT FINDING, CONTINENTAL CAN TEACHES US THAT IT IS OF
NO HELP TO APPELLEES IF THERE EXIST OTHER LINES OF COMMERCE IN WHICH
THE EFFECT IS PRESENT.  ANY COMBINAITON MAY INVOLVE MYRIAD LINES OF
COMMERCE; THE EXISTENCE OF AN ENERGY MARKET IS NOT INCONSISTENT WITH
AND DOES NOT NEGATE THE EXISTENCE OF A NARROWER COAL MARKET FOR "WITHIN
THIS BROAD MARKET, WELL-DEFINED SUBMARKETS MAY EXIST WHICH, IN
THEMSELVES, CONSTITUTE PRODUCT MARKETS FOR ANTITRUST PRUPOSES."  BROWN
SHOE CO. V. UNITED STATES, 370 U.S. 294, 325 (1962). 

THIS PRINCIPLE FOUND RECOGNITION IN CONTINENTAL CAN WHERE WE
RECOGNIZED GLASS AND METAL CONTAINERS "TO BE TWO SEPARATE LINES OF
COMMERCE," DESPITE FINDING THAT COMPETITION BETWEEN THE LINES
"NECESSARILY IMPLIED ONE OR MORE OTHER LINES OF COMMERCE EMBRACING BOTH
INDUSTRIES."  378 U.S., AT 456 - 457 (EMPHASIS ADDED).  IT WAS ALSO
RECOGNIZED IN UNITED STATES V. ALUMINUM CO. OF AMERICA, 377 U.S. 271
(1964), WHICH INVOLVED THE COMBINATION OF AN ALUMINUM CONDUCTOR
MANUFACTURER AND A PRODUCER OF BOTH ALUMINUM AND COPPER CONDUCTOR.  THE
DISTRICT COURT THERE REFUSED TO TREAT ALUMINUM CONDUCTOR AS A SEPARATE
7 LINE OF COMMERCE BECAUSE OF THE COMPETITION BETWEEN ALUMINUM AND
COPPER CONDUCTOR.  THROUGH WE FOUND THAT COMPETITION SUFFICIENT TO
JUSTIFY FINDING A SINGLE ALUMINUM/COPPER CONDUCTOR MARKET, WE REVERSED
THE DISTRICT COURT, HOLDING THAT THE INTERINDUSTRY COMPETITION DID NOT
PRECLUDE "DIVISION (OF THAT MARKET) FOR PURPOSES OF 7 INTO SEPARATE
SUBMARKETS."  ID., AT 275.  /4/ 

COAL HAS BOTH PRICE ADVANTAGES AND OPERATIONAL DISADVANTAGES WHICH
COMBINE TO DELINEATE WITHIN THE ENERGY MARKET "ECONOMICALLY SIGNIFICANT
SUBMARKETS)."  /5/  THE CONSUMERS FOR WHOM PRICE IS DETERMINATIVE MARK
OUT A SUBMARKET IN WHICH COAL IS THE OVERWHELMING CHOICE; THE
BOUNDARIES OF THIS SUBMARKET ARE STRENGTHENED BY COAL'S VIRTUAL
INABILITY TO COMPETE IN OTHER SIGNIFICANT SECTORS OF THE ENERGY
MARKET.  ENERGY-USE TECHNOLOGY IN HIGHWAY AND AIR TRANSPORTATION
NECESSITATES THE USE OF LIQUID FUELS.  THE RELATIVE OPERATIONAL EASE OF
DIESELIZED POWER PLANTS HAS WORKED TO VIRTUALLY FORECLOSE COAL FROM THE
RAIL TRANSPORTATION MARKET.  /6/  DESPITE THEIR HIGHER COST, GAS AND
OIL ENJOY A COMPETITIVE EDGE IN THE SPACE-HEATING MARKET BECAUSE OF
SIMPLE CONSUMER PREFERENCE FOR THESE SOURCES OF ENERGY OVER COAL.  /7/ 

THE MARKET FOR COAL IS THEREFORE EFFECTIVELY LIMITED TO LARGE
INDUSTRIAL ENERGY CONSUMERS SUCH AS ELECTRIC UTILITIES AND CERTAIN
MANUFACTURERS WITH THE ABILITY AND ECONOMIC INCENTIVE TO CONSDER COAL
AS AN ENERGY SOURCE.  /8/  THE COURT BELOW NOTED THAT THE "UTILITY
MARKET HAS BECOME THE MAINSTAY OF COAL PRODUCTION," 341 F. SUPP., AT
539, ACCOUNTING FOR 72% OF TOTAL NATIONAL COAL CONSUMPTIONIN 1968. 
WITHIN THIS SECTOR COAL'S ECONOMIC ADVANTAGE YIELDS IT AN OVERWHELMING
SHARE OF THE MARKET.  IN EACH YEAR FROM 1960 TO 1967 (THE PERIOD DURING
WHICH THE FREEMAN-UNITED ELECTRIC UNION SOLIDFIED) COAL ACCOUNTED FOR
OVER 90% OF THE B.T.U.'S CONSUMED BY STREAM ELECTRIC UTILITY PLANTS IN
THE EICP SALES AREA; IT ALSO PROVIDED 74% OF THE B.T.U.'S CONSUMED BY
CEMENT PLANTS IN THE SAME AREA AND 94% OF THE B.T.U.'S CONSUMED BY SUCH
PLANTS IN ILLINOIS.  /9/ 

THE COAL MARKET IS THEREFORE VIEWED BY ENERGY CONSUMERS AS A
SEPARATE ECONOMIC ENTITY CONFINED TO THOSE USERS WITH THE TECHNOLOGICAL
CAPABILITY TO ALLOW THE USE OF COAL AND THE INCENTIVE FOR ECONOMY TO
MANDATE IT.  WITHIN THAT MARKET COAL EXPERIENCES LITTLE COMPETITION
FROM OTHER FUELS SINCE COAL'S DELIVERED PRICE PRE B.T.U. IN THE AREAS
SERVED BY FREEMAN AND UNITED ELECTRIC IS SIGNIFICANTLY LOWER THAN THAT
FOR ANY OTHER COMBUSTIBLE FUEL EXCEPT INTERRUPTIBLE NATURAL GAS WHICH
IS AVALIABLE ONLY ON A SEASONAL BASIS.  /10/  CENTRAL ILLINOIS LIGHT
CO., FOR EXAMPLE, PURCHASES COAL AT 27 CENTS PER MILLION B.T.U.'S, FIRM
NATURAL GAS AT 45 CENTS, AND OIL (FOR IGNITION PURPOSES) AT 70 CENTS. 
/11/  SINCE COAL COMSUMPTION FACILITIES ARE UNIQUE AND NOT READILY
ADAPTABLE TO ALTERNATIVE ENERGY SOURCES, THERE IS LITTLE INTERFUEL
PRICE SENSITIVITY.  AS THE COURT IN KENNECOTT COPPER CORP. V. FTC, 467
F. 2D 67, 79 (CA10 1972), STATED IN FINDING THAT "(THE COAL INDUSTRY IS
A DISTINCT SUBMARKET WHICH HAS CHARACTERISTICS WHICH ARE NOT SHARED BY
THE OTHER FUEL INDUSTRIES,"  COAL PRICES "ARE NOW, AND PROMISE TO BE IN
THE FUTURE, SUBJECT TO THE PECULIARITIES OF THE COAL BUSINESS (SINCE)
OTHER FUELS APPEAR TO HAVE A LIMITED EFFECT." 

THE COMPETITIVE POSITION OF COAL IS THUS NOT UNLIKE THAT OF ALUMINUM
CONDUCTOR IN UNITED STATES V. ALUMINUM CO. OF AMERICA, SUPRA.  LIKE
COAL, ALUMINUM CONDUCTOR HAD "LITTLE CONSUMER ACCEPTANCE" FOR MAY
PURPOSES, BUT ITS SUBSTANTIAL PRICE ADVANTAGE OVER OTHER CONDUCTORS
GAVE IT "DECISIVE ADVANTAGES" IN THOSE AREAS OF THE MARKET WHERE PRICE
WAS "THE SINGLE, MOST IMPORTANT, PRACTICAL FACTOR."  377 U.S., AT 275 -
276.  DESPITE THE EXISTENCE OF SOME COMPETITION FROM OTHER FORMS OF
CONDUCTOR, THOSE FACTORS WERE SUFFICIENT TO SET ALUMINUM CONDUCTOR
APART AS AN ECONOMICALLY SIGNIFICANT 7 SUBMARKET.  THAT PRECEDENT SEEMS
TO BE INDISTINGUISHABLE; AND THUS WHATEVER THE EXISTENCE OF A 7 ENERGY
MARKET, COAL CONSTITUTES AN ECONOMICALLY SIGNIFICANT SUBMARKET FOR 7
PURPOSES.  /12/

        III 

IN REJECTING THE GOVERNMENT'S PROPOSED GEOGRAPHIC MARKETS THE COURT
BELOW ADOPTED MUCH NARROWER MARKETS WHICH, FOR THE MOST PART, FOLLOWED
ICC FREIGHT RATE DISTRICTS (FRD'S).  /13/ 

THE JUSTIFICATION WAS THAT, SINCE ORDINARY RAIL RATES ARE THE SAME
FOR ALL MINES IN ANY PARTICULAR FRD AND SINCE TRANSPORTATION COSTS ARE
THE PRINCIPAL COMPETITIVE FACTOR IN COAL MARKETING, MINES IN ONE FRD
CANNOT EFFECTIVELY COMPETE FOR THE SAME CUSTOMERS WITH MINES IN OTHER
FRD'S.  SINCE UNITED ELECTRIC'S MINES ARE LOCATED IN THE BELLEVILLE AND
FULTON-PEORIA FRD'S AND FREEMAN'S MINES ARE LOCATED IN THE SPRINGFIELD
AND SOUTHERN ILLINOIS FRD'S, THE COMBINATION OF THE TWO COMPANIES WAS
FOUND TO PRESENT NO RISK OF ANTI-COMPETITIVE EFFECTS. 

THE ERROR OF THE DISTRICT COURT IN DRAWING THE 7 SECTIONS OF THE
COUNTRY "SO NARROWLY AS TO PLACE APPELLEES IN DIFFERENT MARKETS"  /14/
IS AMPLY DEMONSTRATED BY THE OVERLAPPING DISTRIBUTION PATTERNS OF
FREEMAN AND UNITED ELECTRIC.  THOUGH LOCATED IN DIFFERENT FRD'S AND
THUS SUPPOSEDLY NOT COMPETITIVE, THEY SOLD ONE-HALF THEIR OUTPUT TO THE
SAME CUSTOMERS AT THE SAME FACILITIES.  LACK OF COMPETITION BETWEEN
FRD'S IS FURTHER REFUTED BY THE EXISTENCE OF RECIPROCAL SELLING
PATTERNS.  FOR EXAMPLE, WHILE UNITED'S BELLEVILLE FRD MINE WAS SELLING
25% OF ITS OUTPUT TO CUSTOMERS IN THE SOUTHERN ILLINOIS FRD SALES AREA,
FREEMAN WAS SELLING 20% OF ITS SOUTHERN ILLINIOS FRD COAL TO BELLEVILLE
SALES AREA CUSTOMERS.     THE INABILITY OF THE LOWER COURT'S NARROW
MARKETS TO "'CORRESPOND TO THE COMMERCIAL REALITIES'"  /15/  OF THE
DISTRIBUTION PATTERNS DISPLAYED IN THE RECORD IS EXPLAINED BY THE UNDUE
WEIGHT GIVEN ORDINRY RAIL RATES ARE NOT THE SINGLE CONTROLLING ELEMENT
OF TRANSPORTATION COSTS.  FIRST, NOT ALL RAIL SHIPMENTS ARE GOVERNED BY
FRD RATES; MANY OF THE MOST SIGNIFICANT SHIPMENTS ARE TRANSPORTED VIA
"UNITED TRAINS" CARRYING ONLY COAL FROM A PARTICULAR PRODUCER TO A
PARTICULAR CUSTOMER PURSUANT TO A BEGOTIATED RATED.  THUS FREEMAN SHIPS
SOUTHERN ILLINOIS FRD COAL BY UNITED TRAIN TO A BELLEVILLE FRD SALES
AREA CUSTOMER AT A COST LOWER THAN ANY BELLEVILLE FRD RATE TO THAT
LOCATION.  SECTON, NOT ALL COAL TRANSPORTATION PROCEEDS BY RAIL. 
UNITED TRANSPORTS MOST OF ITS COAL BY BARGE, AND IN 1967 ONLY ONE-HALF
OF ALL THE COAL SOLD IN THE FIVE STATES WHICH RECEIVE COAL FROM
ILLINOIS WAS TRANSPORTED BY ALL-RAIL SHIPMENTS. 

NORMAL RAIL RATES ARE THUS NOT SO LIMITING AS TO ELIMINATE
SUBSTANTIAL COMPETITION BETWEEN FRD SALES AREAS.  COAL PRODUCERS MAY
CONSTITUTE STRONG COMPETITIVE FACTORS IN AREAS UP TO 500 MILES FROM THE
MINE.  THUS IN 1967 FREEMAN'S SOUTHERN ILLINOIS FRD ORIENT MINE SHIPPED
OVER 1.5 MILLION TONS OF COAL TO CUSTOMERS 300 TO 500 MILES AWAY.  AT
THE SAME TIME, UNITED'S FIDELITY MINE, ONLY 40 MILES FROM THE ORIENT,
SHIPPED MORE THAN 1 MILLION TONS, OVER HALF ITS TOTAL PRODUCTION, TO
EQUALLY DISTANT LOCATIONS.  BOTH FREEMAN AND UNITED ELECTRIC HAVE MINES
WHICH ARE CAPABLE OF SUPPLYING ANY POINT IN THE EICP SALES AREA. 

FURTHER, EVEN ASSUMING THE EXISTENCE OF FRD MARKETS, I THINK THE
COURT BELOW ERRED IN REJECTING THE GOVERNMENT'S PURPOSED MARKETS.  AS
WITH PRODUCT MARKETS, 7 DOES NOT NECESSITATE AN ANTICOMPETITIVE EFFECT
IN ANY PARTICULAR GEOGRAPHIC MARKET; ITS PROSCRIPTION REACHES
COMBINATIONS WHICH MAY SUBSTANTIALLY LESSEN COMPETITION IN ANY SECTION
OF THE COUNTRY.  THUS, WHATEVER THE CORRECTNESS OF THE DISTRICT COURT
IN FINDING FRD MARKETS, THE LACK OF ANTICOMPETITIVE EFFECT IN THOSE
MARKETS IS OF NO HELP TO GENERAL DYNAMICS IF COMPETITION MAY BE
LESSENED SUBSTANTIALLY IN OTHER GEOGRAPHIC MARKETS.  AND, AS WITH
PRODUCT MARKETS,T HE EXISTENCE OF FRD MARKETS IS NOT INCONSISTENT WITH
THE EXISTENCE OF A MYRIAD OF OTHER SOMETIMES OVERLAPPING MARKETS. 
THUS, IN UNITED STATES V. PABST BREWING CO., 384 U.S. 546 (1966), WE
FOUND WISCONSIN, THE WISCONSIN-MICHIGAN-ILLINOIS TRISTATE AREA, AND THE
ENTIRE UNITED STATES ALL TO BE RELEVANT 7 SECTIONS OF THE COUNTRY IN
WHICH TO ASSESS ANTICOMPETITIVE IMPACT. 

WHILE EXISTING SALES PATTERNS SHOW THAT TRANSPORTATION COSTS ARE NOT
AS RESTRICITVE AS THE DISTRICT COURT FOUND, LONG-RANGE TRANSPORTATION
COSTS AND THE NATIONAL DISTRIBUTION OF COAL DEPOSITS SERVE TO DIVIDE
THE COUNTRY INTO REGIONALLY SIGNIFICIANT COAL MARKETS.  BOTH FREEMAN
AND UNITED ELECTRIC ARE LOCATED IN THE EICP, CONSISTING OF CENTRAL AND
SOUTHERN ILLINOIS, SOUTHWESTERN INDIANA AND WESTERN KENTUCKY.  THE
REGION OVERLIES A GEOLOGICALLY UNITED COAL-BEARING ROCK SEQUENCE WHICH
IS ESTIMATED TO CONTAIN 36% OF THE NATION'S TOTAL COAL RESOURCES. 
BECAUSE OF THE SEPARATION OF THE EREGION FROM OTHER MAJOR PRODUCING
REGIONS, /16/  EICP PRODUCERS ENJOY A SUBSTANTIAL COMPETITIVE EDGE WITH
RESPECT TO SALES IN AN AREA COMPOSED OF ILLINOIS, INDIANA, WESTERN
KENTUCKY, TENNESSEE, EASTERN IOWA, SOUTHEASTERN MINNESOTA, SOUTHERN
WISCONSIN, AND EXTREME EASTERN MISSOURI.  IN 1967, 82% OF EICP COAL WAS
SOLD IN THIS AREA.  FREEMAN SOLD OVER 93% OF ITS COAL AND UNITED
ELECTRIC SOLD OVER 97% OF ITS COAL IN THIS AREA. 

WITHIN THE EICP SALES AREA, ILLINOIS STANDS AS AN ECONOMICALLY
SIGNIFICANT SUBMARKET.  IN 1967, 82% OF THE COAL CONSUMED IN ILLINOIS
CAME FROM ILLINOIS MINES AND 58% OF THE COAL MINED IN THE STATE WAS
USED THERE.  FREEMAN SOLD 42 % OF ITS COAL AND UNITED ELECTRIC SOLD 62%
OF ITS COAL TO ILLINOIS CONSUMERS, MORE THAN EITHER COMPANY SOLD IN ANY
OTHER STATE.  SINCE ILLINOIS SALES ARE DOMINATED BY ILLINOIS PRODUCERS
AND SINCE ALL RELEVANT FREEMAN AND UNITED ELECTRIC MINES ARE LOCATED IN
ILLINOIS, /17/  THE STATE CONSTITUTES A RELEVANT AND SIGNIFICANT MARKET
FOR 7 PURPOSES.  ALTHOUGH ECONOMIC LINES DO NOT FALL PRECISELY ALONG
POLITICAL BOUNDARIES, THE GOVERNMENT IS NOT REQUIRED TO DELINEATE 7
MARKETS BY "METES AND BOUNDS."  UNITED STATES V. PABST BREWING, SUPRA,
AT 549.  IN HOLDING A FOUR-COUNTY GROUP A RELEVANT GEOGRAPHIC MARKET IN
UNITED STATES V. PHIDADELPHIA NATIONAL BANK, 374 U.S. 321 (1963), WE
NOTED THE ARTIFICIALITY OF SUCH POLITICAL BOUNDARIES BUT HELD THAT
"SUCH FUZZINESS WOULD SEEM INHERENT IN ANY ATEMPT TO DELINEATE THE
RELEVANT GEOGRAPHIC MARKET."  ID., AT 360 N. 37.  THE STATE OF
WISCONSIN WAS HELD A RELEVANT MARKET IN PABST BREWING, SUPRA, AND IN
UNITED STATES V. EL PASO GAS CO., 376 U.S. 651, 657 (1964), WE HELD
THAT THERE COULD BE "NO DOUBT THAT CALIFORNIA IS A 'SECTION OF THE
COUNTRY' AS THAT PHRASE IS USED IN 7." 

        IV 

WHILE FINDING NO VIOLATION OF 7 IN THE FREEMAN-UNITED ELECTRIC
COMBINATION, THE DISTRICT COURT DID NOT MAKE CLEAR THE STANDARD USED IN
REACHING THAT ULTIMATE CONCLUSION.  THE COURT DID NOT MENTION WHAT IT
THOUGHT TO BE THE RELEVANT MARKET SHARES NOR DID IT DISCUSS THE EFFECT
OF THE COMBINATION ON INDUSTRY CONCENTRATION.  THE COURT MERELY FOUND
THAT FREEMAN AND UNITED ELECTRIC DO NOT COMPETE BECAUSE THEY ARE
LOCATED IN DIFFERENT FRD GEOGRAPHIC MARKETS, AND BECAUSE THEY SELL
DIFFERENT TYPES OF COAL.  AS ALREADY DISCUSSED, NEARLY ALL THE MINES OF
BOTH COMPANIES ARE LOCATED IN SOUTHERN ILLINOIS AND AS DEMONSTRATED BY
PAST DISTRIBUTION PATTERNS, WITH AN ABILITY TO COMPETE EFFECTIVELY AT
DISTANCES UP TO 500 MILES, THEIR PRESENCE IN DIFFERENT MINUTE FRD'S
WITHIN SOUTHERN ILLINOIS HAS SIMPLY NOT RENDERED THEM NONCOMPETITIVE. 
THE DIFFERENCES IN THE TYPES OF COAL SOLD.  MOREOVER, ARE IRRELEVANT. 
IT IS TRUE AS THE COURT BELOW NOTES THAT UNITED ELECTRIC SELLS STRIP
MINED COAL WHILE FREEMAN EXTRACTS DEEP RESERVES, BUT THE FACT THAT THE
COMPANIES SOLD HALF THEIR OUTPUT TO COMMON CUSTOMERS DEMONSTRATES THAT
AT LEAST A SIGNIFICANT PORTION OF THE CONSUMING PUBLIC IS UNDERSTANDBLY
UNCONCERNED WITH THE DETAILS OF EXTRACTION.  WHILE IT IS ALSO TRUE THAT
ONLY FREEMAN SELLS METALLURGICAL COAL AND A BYPRODUCT KNOWN AS DUST,
THIS SAYS NOTHING MORE THAN THAT THE COMPANIES DO NOT COMPETE IN
METALLURGICAL COAL OR DUST; IT DOES NOT RELIEVE THE COURT OF THE
RESPONSIBILITY FOR EVALUATING THE ANTICOMPETITIVE EFFECTS IN
NONMETALLURGICAL COAL PRODUCTION--, PRODUCTION WHICH ACCOUNTS FOR 100%
OF UNITED'S AND 92% OF FREEMAN'S BUSINESS.  /18/ 

THE COURT FURTHER FOUND THAT UNITED ELECTRIC, STANDING ALONE, WOULD
NOT CONTRIBUTE MEANINGFULLY TO FURTHER COMPETITION SINCE VIRTUALLY ALL
ITS ECONOMICALLY MINEABLE STRIP RESERVES WERE COMMITTED UNDER LONG-TERM
CONTRACTS AND IT POSSESSED NEITHER THE CAPABILITY TO OBTAIN MORE STRIP
RESERVES NOR THE EXPERTISE TO DEVELOP ITS DEEP RESERVES.  ALTHOUGH THE
DOCTRINE WAS NOT INVOKED BY NAME, THIS APPEARS TO BE AN APPLICATION OF
THE "FAILING COMPANY"  DEFENSE.  SEE CITIZEN PUBLISHING CO. V. UNITED
STATES, 394 U.S. 131 (1969).  IF IT IS, THE COURT PROCEEDED ON AN
ANALYSIS MADE AT THE WRONG TIME AND FAILED TO DISCUSS THE LEGAL
STANDARDS EMPLOYED IN FINDING THE DEFENSE TO BE ESTABLISHED.  THE
FINDING THE 48 OF UNITED'S 52 MILLION TONS OF STRIP RESERVES WERE
COMMITTED RELATED TO THE TIME OF TRIAL.  BUT, SINCE THE RATIONALE OF
THE FAILING-COMPANY DEFENSE IS THE LACK OF ANTICOMPETITIVE CONSEQUENCE
IF ONE OF THE COMBINING COMPANIES WAS ABOUT TO DISAPPEAR FROM THE
MARKET AT ANY RATE, THE VIABILITY OF THE "FAILING COMPANY" MUST BE
ASSESSED AS OF THE TIME OF THE MERGER.  UNITED STATES V. GREATER
BUFFALO PRESS, 402 U.S. 549, 555 (1971); CITIZEN PUBLISHING CO. V.
UNITED STATES, SUPRA, AT 138. 

THE COURT URGES THAT UNITED'S WEAK RESERVE POSITION, RATHER THAN
ESTABLISHING A FAILING-COMPANY DEFENSE, "WENT TO THE HEART OF THE
GOVERNMENT'S STATISTICAL PRIMA FACIE CASE BASED ON PRODUCTION
FIGURES."  UNDER THIS VIEW UNITED'S WEAK RESERVE POSITION AT THE TIME
OF TRIAL CONSTITUTES POSTACQUISITION EVIDENCE WHICH DIMINISHES THE
POSIBILITY OF ANTICOMPETITIVE IMPACT AND THUS DIRECTLY AFFECTS THE
STRENGTH OF TIME-OF-ACQUISITION FINDINGS.  THE PROBLEM WITH THIS
ANALYSIS IS THAT THE DISTRICT COURT MADE NO TIME-OF-ACQUISITION
FINDINGS WHICH SUCH POSTACQUISITION EVIDENCE COULD AFFECT.  THE
MAJORITY CONCEDES THE OBVIOUS NEED FOR A LIMITATION ON THE WEIGHT GIVEN
POSTACQUISITION EVIDENCE AND NOTES THAT WE HAVE REVERSED CASES WHERE
"TOO MUCH WEIGHT" HAS BEEN GIVEN.  HERE THE POSTACQUISITION EVENTS WERE
GIVEN ALL THE WEIGHT BECAUSE ALL THE DISTRICT COURT'S FINDINGS WERE
MADE AS OF THE TIME OF THE TRIAL.  WHILE FINDINGS MADE AS OF THE TIME
OF THE MERGER COULD CONCEDEDLY BE TEMPERED TO A LIMITED DEGREE BY POST
ACQUISITION EVENTS, NO SUCH FINDINGS WERE EVER MADE. 

MANY OF THE COMMITMENTS HERE WHICH REDUCED UNITED'S AVAILABLE
RESERVES OCCURRED AFTER THE ACQUISITION; 21 MILLION TONS FOR EXAMPLE
WERE COMMITTED IN 1968.  SIMILARLY, THOUGH THE DISTRICT COURT FOUND
FURTHER MINEABLE STRIP RESERVES UNAVAILABLE AT THE TIME OF TRIAL, THERE
IS NO FINDING THAT THEY WERE UNAVAILABLE IN 1959 OR 1967.  TO THE
CONTRARY, THE RECORD DEMONSTRATES THAT OTHER COAL PRODUCERS DID ACQUIRE
NEW STRIP RESERVES DURING THE 1960'S.  /19/  UNITED'S 1959 VIABILITY IS
FURTHER SUPPORTED BY THE FACT THAT IT POSSESSED 27 MILLION TONS OF DEEP
RESERVES.  WHILE WE DO NOT KNOW IF ALL THESE RESERVES WERE ECONOMICALLY
MINEABLE AT THE TIME OF THE ACQUISITION, THERE WAS NO FINDING THAT THEY
WOULD NOT BECOME SO IN THE NEAR FUTURE WITH ADVANCES IN TECHNOLOGY OR
CHANGES IN THE PRICE STRUCTURE OF THE COAL MARKET.  /20/  FURTHER THERE
WAS NO CONTENTION OR FINDING THAT FURTHER DEEP RESERVES WERE NOT
AVALIABLE FOR ACQUISITION.  /21/  THE DISTRICT COURT MERELY CONCLUDED
THAT UNITED HAD NO "ABILITY TO DEVELOP DEEP COAL RESERVES."  /22/ 

WHILE IT IS TRUE THAT UNITED IS A STRIP-MINING COMPANY WHICH HAS NOT
EXTRACTED DEEP RESERVES SINCE 1954, THIS DOES NOT MEAN THAT UNITED
WOULD NOT DEVELOP DEEP-MINING EXPERTISE IF DEEP RESERVES WERE ALL IT
HAD LEFT OR THAT IT COULD NOT SELL THE RESERVES TO SOME COMPANY WHICH
POSES LESS OF A THREAT TO INCREASED CONCENTRATOIN IN THE COAL MARKET
THAN DOES FREEMAN.  UNITED ELECTRIC WAS NOT, AS THE COURT SUGGESTS,
MERELY ONE OF MANY COMPANIES WITH THE POSSIBLE "INCLINATION AND THE
CORPORATE TREASURY" TO ALLOW EXPANSION INTO" AN ESSENTIALLY NEW LINE OF
BUSINESS."  UNITED WAS A COAL COMPANY WITH A THRIVING COAL-MARKETING
STRUCTURE.  AT THE TIME OF THE MERGER IT HAD ACCESS TO AT LEAST 27
MILLION TONS OF DEEP RESERVES AND IT HAD OPERATED A DEEP MINE ONLY FIVE
YEARS PREVIOUSLY.  WHILE DEEP-COAL MINING MAY HAVE BEEN AN ESSENTIALLY
NEW LINE OF BUSINESS FOR MANY, IT WAS FOR UNITED MERELY A MATTER OF
REGAINING THE EXPERTISE IT ONCE HAD TO EXTRACT RESERVES IT ALREADY
OWNED FOR SALE IN A MARKET WHERE IT ALREADY HAD A GOOD NAME. 

THUS, FROM PRODUCT AND GEOGRAPHIC MARKETS TO MARKET-SHARE AND
INDUSTRY-CONCENTRATION ANALYSIS TO THE FAILING-COMPANY DEFENSE, THE
FINDINGS BELOW ARE BASED ON LEGAL STANDARDS WHICH ARE EITHER INCORRECT
OR NOT DISCLOSED.  WHILE THE COURT DID GRATUITOUSLY STATE THAT NO 7
VIOLATION WOULD BE FOUND "EVEN WERE THIS COURT TO ACCEPT THE
GOVERNMENT'S UNREALISTIC PRODUCT AND MARKET DEFINITIONS."  THIS
CONCLUSORY STATEMENT IS SUPPORTED BY NO ANALYSIS SUFFICIENT TO ALLOW
REVIEW IN THIS COURT.  THE MAJORITY NOTES THAT PRODUCTION FIGURES ARE
OF LIMITED SIGNIFICANCE BECAUSE THEY INCLUDE DELIVERIES UNDER LONG-TERM
CONTRACTS ENTERED INTO IN PRIOR YEARS.  IT IS TRUE THAT UNCOMMITTED
RESERVES OR SALES OF PREVIOUSLY UNCOMMITTED COAL WOULD BE PREFERABLE
INDICIA OF COMPETITIVE STRENGTH, BUT THE DISTRICT COURT MADE NO
FINDINGS AS TO UNITED'S OR FREEMAN'S RESPECTIVE MARKET SHARES AT THE
TIME OF THE ACQUISITION UNDER EITHER OF THESE STANDARDS.  /23/ 

ON THE BASIS OF A RECORD SO DEVOID OF FINDINGS BASED ON CORRECT
LEGAL STANDARDS, THE JUDGMENT MAY NOT BE AFFIRMED EXCEPT ON A DEEP
SEATED JUDICIAL BIAS AGAINST 7 OF THE CLAYTON ACT.  WE SHOULD REMAND
THE CASE TO THE DISTRICT COURT WITH DIRECTIONS TO ASSESS THE IMPACT OF
THE FREEMAN-UNITED ELECTRIC COMBINATION ON THE ILLINOIS AND EICP SALES
AREA COAL MARKETS AS OF 1959.  /24/  WE SHOULD DIRECT THE CUORT TO MAKE
FINDINGS OF RESPECTIVE MARKET SHARES, AND FURTHER TO EVALUATE UNITED
ELECTRIC'S VIABILITY AS AN INDEPENDENT PRODUCER OR AS THE POSSIBLE
"ACQUIREE"  OF A COMPANY OTHER THAN GENERAL DYNAMICS AS OF 1959, IN
LIGHT OF THE STRICT STANDARDS APPLICABLE TO THE FAILING-COMPANY
DEFENSE.  SINCE WE ABDICATE OUR DUTY FOR RESPONSIBLE REVIEW AND ACCEPT
THERE MERE CONCLUSION THAT NO 7 VIOLATION IS ESTABLISHED ON THE BASIS
OF A RECORD WITH NONE OF THESE NECESSARY FINDINGS, I DISSENT FROM THE
AFFIRMANCE OF THE DISTRICT COURT'S JUDGMENT. 

/1/  341 F. SUPP. 534 (1972). 

/2/  TITLE 15 U.S.C. 18 PROVIDES: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

/3/  SUPRA, N. 2. 

/4/  SIMILARLY, IN UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374
U.S. 321 (1963), WE HELD COMMERCIAL BANKING A 7 LINE OF COMMERCE EVEN
THOUGH BANKS COMPETE WITH OTHER INSTITUTIONS WITH RESPECT TO SOME
SERVICES SUCH AS THE MAKING OF SAMLL LOANS.     /5/  SEE BROWN SHOE
CO., V. UNITED STATES, 370 U.S. 294, 325 (1962). 

/6/  341 F. SUPP., AT 539. 

/7/  IBID. 

/8/  THE ONLY OTHER SIGNIFICANT USE FOR COAL IS METALLURGICAL IN
NATURE.  METALLURGICAL COAL IS USED AS A PRODUCT IN THE MANUFACTURE OF
STEEL.  THE USE OF SUCH COAL AS A PRODUCT SETS IT OFF IN A SEPARATE
MARKET FROM NONMETALLURGICAL COAL WHICH IS USED AS AN ENERGY SOURCE. 

/9/  ALTHOUGH NUCLEAR AND GEOTHERMAL POWER MAY DRAW SOME UTILITY
CONSUMERS FROM THE COAL MARKET IN THE FUTURE, NUCLEAR FUEL IS NOT
CONSUMABLE IN EXISTING FOSSIL-FUEL PLANTS NOR IS NUCLEAR FUEL PRESENTLY
AN ALTERNATIVE FOR NONUTILITY COAL CONSUMERS.  THUS, WHATEVER THE
FUTURE INROADS OF ALTERNATIVE FUELS, THERE REMAINS A SIGNIFICANT CLASS
OF ENERGY CONSUMERS WHICH LOOKS ONLY TO COAL. 

/10/  INTERRUPTIBLE GAS IS SOLD AT A LOWER RATE AND IS AVALIABLE
ONLY WHEN IT IS NOT REQUIRED BY FIRM-RATE CUSTOMERS WHICH ARE SUPPLIED
ACCORDING TO THEIR NEEDS AND WHICH ALWAYS HAVE PRIORITY. 

/11/  OIL IS USED BY SOME COAL CONSUMERS FOR PURPOSES TO WHICH COAL
IS NOT SUITED SUCH AS STARTING UP BOILERS OR KILNS. 

/12/  EVEN THE COURT BELOW GAVE SOME RECOGNITION TO COAL AS A
SEPERATE MARKET IN ITS DISCUSSION OF THE RELEVANT GEOGRAPHIC MARKETS. 
THE GEOGRAPHIC MARKETS WERE DELINEATED ALONG "THE DISTRIBUTIVE PATTERNS
OF . . . COAL," SEPARATING OUT THOSE "MINES TO WHICH COAL CONSUMERS CAN
PRACTICABLY TURN FOR SUPPLIES."  341 F.SUPP., AT 556. 

/13/  FREIGHT RATE DISTRICT ARE PRODUCING AREAS GROUPED FOR ICC RATE
MAKING PURPOSES; ALL MINES WITHIN EACH PRODUCING AREA ARE ACCORDED THE
SAME RATES TO THE SAME CONSUMING DESTINATIONS.  SEE AYRSHIRE COLLIERIES
CORP. V. UNITED STATES, 335 U.S. 573, 576 (1949).  THE OTHER MARKETS
ACCEPTED BY THE DISTRICT COURT ARE COMMONWEALTH EDISON AND THE
METROPOLITAN CHICAGO INTERSTATE AIR QUALITY CONTROL REGION. 
COMMONWEALTH EDISION WAS FOUND TO BE UNIQUE IN LIGHT OF ITS MASSIVE
COAL REQUIREMTNS, ITS PURCHASING PATTERNS WHICH ARE "QUITE DISTINCT
FROM (THOSE) FOLLOWED BY OTHER CONSUMERS," AND ITS SINGULARLY EXTENSIVE
COMMITMENT TO NUCLEAR ENERGY.  THE MCIAQC, CONSISTING OF SIX
NORTHEASTERN ILLINOIS COUNTIES AND TWO NORTH-WESTERN INDIANA COUNTIES,
WAS FOUND UNIQUE BECAUSE OF ITS SINGULAR ACCESS, THROUGH WATER AND RAIL
ARTERIES, TO ALMOST ALL FRD'S IN THE MIDWEST. 

/14/  SEE UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S., AT
361. 

/15/  SEE BROWN SHOE CO., V. UNITED STATES, 370 U.S., AT 336. 

/16/  THE NATION'S OTHER MAJOR COAL PRODUCING REGIONS ARE: (1) THE
EASTERN COAL PROVINCE OF WESTERN PENNSYLVANIA, WEST VIRGINIA, EASTERN
KENTUCKY, AND PARTS OF OHIO, TENNESSEE, AND ALABAMA; (2) THE WESTERN
INTERIOR COAL PROVINCE COMPRISED OF CENTRAL IOWA, NORTHERN AND WESTERN
MISSOURI AND EASTERN OKLAHOMA; AND (3) SCATTERED DEPOSITS IN MONTANA,
WYOMING, COLORADO, AND UTAH.  JURISDICTIONAL STATEMENT 5. 

/17/  UNITED ELECTRIC ALSO CONTROLS SOME COAL DEPOSITS IN COLORADO
AND OKLAHOMA WHICH ARE NOT IN ISSUE IN THIS CASE.  341 F. SUPP., AT 538
N. 8. 

/18/  THE LACK OF COMPETITION FROM UNITED FOR A MERE 8% OF FREEMAN'S
BUSINESS IS SIMPLY IRRELEVANT.  IN UNITED STATES V. ALUMINUM CO. OF
AMERICA, 377 U.S. 271 (1964), WE STRUCK DOWN A COMBINATION WHICH
AFFECTED COMPETITION IN THE ALUNMINUM CONDUCTOR MARKET, AND THAT RESULT
WAS NOT AFFECTED BY THE IRRELEVANT FACT THAT ONE OF THE COMPANIES, ROME
CABLE, ALSO ENGAGED IN THE PRODUCTION OF COPPER CONDUCTOR. 

/19/  SEE BRIEF FOR UNITED STATES 71. 

/20/  RESEARCH INTO NEW METHODS OF EXTRACTION OR A RISE IN THE PRICE
OF COAL COULD MAKE RESERVES WHICH ARE UNECONOMICAL TO MINE AT ANY GIVEN
TIME ECONOMICALLY MINEABLE IN THE FUTURE. 

/21/  TO THE CONTRARY, UNITED ELECTRIC ACQUIRED SUBSTANTIAL NEW DEEP
RESERVES AFTER THE TIME OF THE ACQUISITION SINCE IT NOW OWNS ABOT 44
MILLION TONS OF DEEP RESERVES AND CONTROLS BY LOCATION ANOTHER 40 TO 50
MILLION TONS.  RESERVES ARE CONTROLLED BY LOCATION IF, IN ORDER TO BE
MINED AT ALL, THEY MUST BE MINED BY THOSE WHO CONTROL, BY OWNERSHIP,
LEASE, OR OPTION, THE CONTIGUOUS RESERVES. 

/22/  IF THAT CONCLUSION IS TO LEND SUPPORT TO THE COMBINATION ON
THE GROUND THAT UNITED "STANDING ALONE, CANNOT CONTRIBUTE MEANINGFULLY
TO COMPETITION," IT MUST BE MADE IN LIGHT OF THE STRIGENT STANDARDS
APPLICABLE TO THE FAILING-COMPANY DEFENSE.  IN CITIZEN PUBLISHING CO.
V. UNITED STATES, 394 U.S. 131, 138-139 (1969), WE SAID THAT THE
DEFENSE IS ONE OF "NARROW SCOPE" AND THAT THE BURDEN OF PROVIDING THE
DEFENSE IS "ON THOSE WHO SEEK REFUSE UNDER IT."  WE ALSO STATED THAT
THE PROSPECTS OF CONTINUED INDEPENDENT EXISTENCE MUST BE "DIM OR
NONEXISTENT" AND THAT IT MUST BE ESTABLISHED THAT THE ACQUIRING COMPANY
IS THE ONLY AVAILABLE PURCHASER.  SEE ALSO UNITED STATES V. GREATER
BUFFALO PRESS, 402 U.S. 549, 555 - 556 (1971), AND UNITED STATE V.
THIRD NATIONAL BANK IN NASHVILLE, 390 U.S. 171, 189 (1968). 

/23/  THE DISTRICT COURT DID FIND THAT, AS OF 1968, FREEMAN
CONTROLLED 6.5% OF THE TOTAL COAL RESERVES DEDICATED TO EXISTING MINES
IN THE EICP.  AT THE SAME TIME, UNITED ELECTRIC CONTROLLED 2.5% OF THAT
TOTAL, BUT ALMOST ALL OF THIS WAS CONTRACTUALLY COMMITTED.  IF MARKET
SHARES ARE TO BE DETERMINED BY PERCENTAGE OF TOTAL RESERVES, WHAT IS
NECESSARY IS A FINDING AS TO EACH COMPANY'S 1959 SHARE OF UNCOMMITTED
ILLINOIS AND EICP RESERVES--, INCLUDING RESERVES WHICH WERE
ECONOMICALLY MINERABLE OR WHICH MIGHT HAVE BECOME SO IN THE REASONABLY
NEAR FUTURE AND FURTHER INCLUDING AN ESTIMATE AS TO UNCONTROLLED
RESERVES WHICH MIGHT HAVE BEEN ACQUIRED BY EITHER COMPANY IN THE
REASONABLY NEAR FUTURE. 

THE DISTRICT COURT ALSO FOUND THAT, AS OF 1968, THE TWO COMPANIES
TOGETHER ACCOUNTED FOR 10.9% OF THE EICP COAL PRODUCTION, AND THAT THIS
FIGURE REPRESENTED MORE THAN A 10% DECREASE FROM THE COMBINED
PRODUCTION FOR 1959.  COMBINED 1959 PRODUCTION BY THE COMPANIES WAS
THUS AT LEAST 12.1% OF THE EICP TOTAL.  IF MARKET SHARES ARE TO BE
DETERMINED BY PERCENTAGE OF INDUSTRY SALES, THIS FIGURE IS IN EXCESS OF
PERCENTAGES FOUND ILLEGAL IN MARKETS WITH A TREND TOWARD CONCENTRATION
(SEE, E.G., UNITED STATES V. VON'S GROCERY CO., 384 U.S. 270 (1966)
(7.5%), AND UNITED STATES V. PABST BREWING CO., 384 U.S. 546 (1966)
(4.49%)), AND THE COURT BELOW RECOGNIZED AN INCREASE IN CONCENTRATION
IN THE COAL MARKET.  IT MIGHT BE ARGUED, HOWEVER, THAT, IF MARKET SHARE
IS TO BE DETERMINED BY SALES, THE PRODUCTION FIGURES FOUND BY THE COURT
BELOW ARE NOT THE RELEVANT ONES FOR THEY INCLUDE PRODUCTION WHICH GOES
TO MEET OBLIGATIONS INCURRED IN LONG-TERM CONTRACTS ENTERED INTO IN
PRIOR YEARS.  IN TERMS OF COMPETITION, IF SALES ARE THE RELEVANT
CRITERIA, WHAT IS NEEDED IS A FINDING OF "NEW" SALES (SALES OF
PREVIOUSLY UNCOMMITTED COAL) AS A PERCENTAGE OF TOTAL INDUSTRY NEW
SALES IN ILLINOIS AND THE EICP AT THE TIME OF THE ACQUISITION. 

/24/  COMMON CONTROL OF THE TWO COMPANIES WAS ACHIEVED IN 1959 AND
THE COMBINATION WAS COMPLETED N 1967; AT ORAL ARGUMENT BOTH PARTIES
CONCEDED THAT THE MERGER "TOOK PLACE" IN 1959. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL BORK, FORMER
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL KAUPER, MARK L.
EVANS, AND CARL D. LAWSON. 

REUBEN L. HEDLUND ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE HAMMOND CHAFFETZ, DONALD G. KEMPF, JR., AND ALBERT E.
JENNER, JR.
..END :
















DE MARCO V. UNITED STATES, 415 U.S. 449 


       DE MARCO V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SEVENTH CIRCUIT

        NO. 73 - 5684.  DECIDED MARCH 18, 1974;

        CERTIORARI GRANTED; VACATED AND REMANDED. 


    A GOVERNMENT WITNESS, WHO HAD BEEN INDICTED WITH PETITIONER,

  TESTIFIED AT PETITIONER'S TRIAL THAT NO PROMISES HAD BEEN MADE TO

  THE WITNESS REGARDING DISPOSITION OF HIS CASE.  PETITIONER, FOR

  THE FIRST TIME ON APPEAL OF HIS CONVICTION, CONTENDED THAT THE

  WITNESS'  TESTIMONY WAS FALSE ON THE BASIS OF THE PROSECUTOR'S

  STATEMENTS AT THE SUBSEQUENT SENTENCING HEARING OF THE WITNESS,

  WHO HAD PLEADED TO A LESSER CHARGE IN A SUPERSEDING INDICTMENT. 

THE COURT OF APPEALS, AFTER EXAMINING THE TRANSCRIPT OF THE

 SENTENCING HEARING, CONCLUDED THAT NO LENIENCY PROMISE HAD BEEN

  MADE PRIOR TO THE WITNESS'  TESTIMONY AT PETITIONER'S TRIAL. 

  HELD: HAD THERE BEEN A PROMISE TO THE WITNESS BEFORE HE

  TESTIFIED, A REVERSAL OF PETITIONER'S CONVICTION WOULD BE

  REQUIRED, GIGLIO V. UNITED STATES, 405 U.S. 150, AND NAPUE V.

  ILLINOIS, 360 U.S. 264, AND THE FACTUAL ISSUE OF WHETHER THE PLEA

  BARGAIN THAT OBVIOUSLY WAS MADE WITH THE WITNESS PRECEDED OR

  FOLLOWED PETITIONER'S TRIAL SHOULD HAVE BEEN RESOLVED BY THE

  DISTRICT COURT AFTER AN EVIDENTIARY HEARING. 

PER CURIAM. 

AT PETITIONER'S TRIAL, A GOVERNMENT WITNESS WHO HAD BEEN INDICTED
WITH PETITIONER, TESTIFIED THAT THE GOVERNMENT HAD MADE NO PROMISES TO
HIM WITH RESPECT TO THE DISPOSITION OF HIS CASE.  PETITIONER WAS
CONVICTED AND HE APPEALED.  MEANWHILE, THE WITNESS HAD PLEADED TO A
LESSER CHARGE CONTAINED IN SUPERSEDING INDICTMENT; AND AT HIS
SENTENCING HEARING, THE UNITED STATES ATTORNEY MADE CERTAIN STATEMENTS
THAT PETITIONER INTERPRETED AS PROVING THAT PROMISES HAD BEEN MADE TO
THE WITNESS PRIOR TO HIS TESTIMONY AND THAT THE WITNESS HAD TESTIFIED
FALSELY AT PETITIONER'S TRIAL.  WITHOUT PRESENTING THE MATTER TO THE
DISTRICT COURT, PETITIONER PRESSED THE QUESTION IN THE COURT OF
APPEALS.  THAT COURT ACCEPTED THE TENDERED ISSUE, EXAMINED THE
TRANSCRIPT OF THE HEARING AT WHICH THE WITNESS WAS SENTENCED,
CONSIDERED THE GOVERNMENT'S RESPONSE IN THE COURT OF APPEALS AND,
ALTHOUGH THE PROSECUTOR'S REMARKS WERE DEEMED AMBIGUOUS AND THE
QUESTION THOUGHT TO BE A "CLOSE" ONE, CONCLUDED THAT NO PROMISES HAD
BEEN MADE TO THE WITNESS PRIOR TO THE WITNESS' TESTIMONY AT
PETITIONER'S TRIAL. 

UNQUESTIONABLY, HAD THERE BEEN A PROMISE TO THE WITNESS PRIOR TO HIS
TESTIMONY, GIGLIO V. UNITED STATES, 405 U. S. 150 (1972), AND NAPUE V.
ILLONOIS, 360 U.S. 264 (1959), WOULD REQUIRE REVERSAL OF PETITIONER'S
CONVICTION.  IT IS ALSO CLEAR THAT THERE WAS A PLEA BARGAIN BETWEEN THE
WITNESS AND THE GOVERNMENT AT SOME POINT, THE QUESTION BEING WHETHER IT
WAS MADE AFTER OR BEFORE PETITIONER'S TRIAL.  THIS FACTUAL ISSUE WAS
DISPOSITIVE OF THE CASE, AND IT WOULD HAVE BEEN BETTER PRACTICE NOT TO
RESOLVE IT IN THE COURT OF APPEALS BASED ONLY ON THE MATERIALS THEN
BEFORE THE COURT.  THE ISSUE SHOULD HAVE BEEN REMANDED FOR INITIAL
DISPOSITION IN THE DISTRICT COURT AFTER AN EVIDENTIARY HEARING.  /1/
WE THEREFORE GRANT THE PETITION FOR CERTIORARI AND THE MOTION TO
PROCEED IN FORMA PAUPERIS, VACATE THE JUDGMENT OF THE COURT OF APPEALS,
AND REMAND THE CASE TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              SO ORDERED. 

/1/  THE GOVERNMENT'S RESPONSE TO THE PETITION FOR CERTIORARI AGREES
THAT FACTFINDING IS THE BASIC RESPONSIBILITY OF DISTRICT COURTS, RATHER
THAN APPELLATE COURTS, AND THAT COURT OF APPEALS SHOULD NOT HAVE
RESOLVED IN THE FIRST INSTANCE THIS FACTUAL DISPUTE WHICH HAD NOT BEEN
CONSIDERED BY THE DISTRICT COURT.  SEE, E.G., GENERAL ELECTRIC CREDIT
CORP. V. ROBBINS, 414 F.2D 2088 211 (CA8 1969); YANISH V. BARBER, 232
F.2D 939, 946 - 947 (CA9 1956).  SEE ALSO 5 A J. MOORE, FEDERAL
PRACTICE 52.06 (2) N. 1 (2D ED. 1974). 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
POWELL JOIN, DISSENTING. 

PETITIONER WAS CONVICTED IN THE DISTRICT COURT OF TRAFFICKING IN
ILLEGAL NARCOTICS IN VIOLATION OF THE PROVISIONS OF 21 U.S.C. 174 (1964
ED.).  THE COURT OF APPEALS SUMMARILY REJECTED PETITIONER'S ATTACKS ON
THE SUFFIEIENCY OF THE EVIDENCE TO CONVICT HIM, AND DEALT IN DETAIL
ONLY WITH THE GIGLIO ISSUE UPON WHICH THE COURT DECIDES TO VACATE AND
REMAND FOR CONSIDERATION BY THE DISTRICT COURT.  AS THE COURT NOTES,
THIS WAS A "FACTUAL ISSUE,"  ANTE, AT 450, AND RAISES NO QUESTION
WHATEVER OF GENERAL IMPORTANCE IN THE LAW.  COMMONLY I WOULD EXPECT
THIS PETITION TO BE DENIED FOR THOSE REASONS. 

THE SOLICITOR GENERAL, HOWEVER, HAS FILED A RESPONSE IN THIS COURT
WHICH, THUOGH ENTITLED MEMORANDUM IN OPPOSITION," INCORPORATES IN A
FOOTNOTE A BACKHANDED INVITATION TO THE COURT TO FOLLOW THE COURSE
WHICH IT HAS NOW TAKEN.  IT IS WELL ESTABLISHED THAT THIS COURT DOES
NOT, OR AT LEAST SHOULD NOT, RESPOND IN PAVLOVIAN FASHION TO
CONFESSIONS OF ERROR BY THE SOLICITOR GENERAL.  SEE, E.G., YOUNG V.
UNITED STATES, 315 U.S. 257 (1942); GIBSON V. UNITED STATES, 329 U.S.
228, 334 N. 9 (1946).  I BELIEVE THERE COULD NOT BE A PLAINER CASE THAN
THIS ONE FOR THE INVOCATION OF THE DOCTRINE OF INVITED ERROR.  FOR
WHATEVER MAY BE THE PROPER ALLOCATION OF FACTFINDING RESPONSIBILITES
BETWEEN THE COURT OF APPEALS AND THE DISTRICT COURT, PETITIONER
DELIBERATELY CHOSE TO RAISE THIS LARGELY FACTUAL ISSUE FOR THE FIRST
TIME IN THE COURT OF APPEALS AND TO SEEK DECISION UPON IT THERE.  THAT
THE COURT OF APPEALS RESPONDED TO THE INVITATION IS SARCELY GROUNDS FOR
ANY CLAIM OF ERROR HERE.  I WOULD DENY CERTIORARI. 
..END :


















NATIONAL CABLE TELEVISION ASSN. V. UNITED STATES, 415 U.S. 336 


       NATIONAL CABLE TELEVISION ASSN., INC. V. UNITED STATES ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 72 - 948.  ARGUED DECEMBER 3, 1973--DECIDED MARCH 4,

           1974; 464 F. 2D 1313, REVERSED AND REMANDED. 


    THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952 (HEREAFTER THE

  ACT), AUTHORIZES EACH FEDERAL AGENCY TO PRESCRIBE BY REGULATION

  SUCH FEE FOR THE AGENCY'S SERVICES AS IS DETERMINED TO BE FAIR

  AND EQUITABLE, TAKING INTO CONSIDERATION THE DIRECT AND INDIRECT

  "COST TO THE GOVERNMENT, VALUE TO THE RECIPIENT, PUBLIC POLICY OR

  INTEREST SERVED, AND OTHER PERTINENT FACTS ...."  PURSUANT TO THE

  ACT, THE FEDERAL COMMUNICATIONS COMMISSION (FCC), IN REVISING

FEES IMPOSED UPON COMMUNITY ANTENNA TELEVISION (CATV) SYSTEMS,

  FIRST ESTIMATED ITS DIRECT AND INDIRECT COSTS FOR CATV

  REGULATIONS, AND THEN, WHILE RETAINING FILING FEES, ADDED AN

  ANNUAL FEE FOR EACH CATV SYSTEM AT THE RATE OF 30[ PER

  SUBSCRIBER, CONCLUDING THAT THIS FEE WOULD APPROXIMATE THE "VALUE

  TO THE RECIPIENT" USED IN THE ACT.  THE COURT OF APPEALS, ON A

  REVIEW OBTAINED BY PETITIONER, A CATV TRADE ASSOCIATION, APPROVED

  THE FCC'S ACTION.  HELD: 

     1.  THE ACT AUTHORIZES THE IMPOSITION OF A "FEE," WHICH

  CONNOTES A "BENEFIT" OF "VALUE TO THE RECIPIENT."  THE LATTER

  PHRASE IS THE PROPER MEASURE OF THE AUTHORIZED CHARGE, NOT THE

  "PUBLIC POLICY OR INTEREST SERVED" PHRASEOLOGY WHICH, IF READ

  LITERALLY, WOULD ENABLE THE AGENCY TO MAKE ASSESSMENTS OR TAX

  LEVIES WHEREBY CATV'S AND OTHER BROADCASTERS WOULD BE PAYING NOT

  ONLY FOR THE BENEFITS THEY RECEIVED BUT, CONTRARY TO THE ACT'S

  OBJECTIVES, WOULD ALSO BE PAYING FOR THE PROTECTIVE SERVICES THE

FCC RENDERS TO THE PUBLIC.  PP. 340 - 343. 

     2.  THE FCC SHOULD REAPPRAISE THE ANNUAL FEE IMPOSED UPON THE

  CATV'S.  IT IS NOT ENOUGH TO FIGURE THE TOTAL COST (DIRECT AND

 INDIRECT) TO THE FCC FOR OPERATING A CATV SUPERVISION UNIT AND

  THEN TO CONTRIVE A FORMULA REIMBURSING THE FCC FOR THAT AMOUNT,

  SINCE SOME OF SUCH COSTS CERTAINLY INURED TO THE PUBLIC'S BENEFIT

  AND SHOULD NOT HAVE INCLUDED IN THE FEE IMPOSED UPON THE CATV'S.

  PP. 343 - 344. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

 BURGER, C. J., AND STEWART, WHITE, AND REHNQUIST, JJ., JOINED. 

  MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, J.,

  JOINED, POST, P. 352.  BLACKMUN AND POWELL, JJ., TOOK NO PART IN

  THE DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPNION OF THE COURT. 

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, TIT. 5, 65 STAT. 290,
31 U.S.C. 483A, PROVIDES IN RELEVANT PART: " IT IS THE SENSE OF THE
CONGRESS THAT ANY WORK, SERVICE..., BENEFIT,...LICENSE,...OR SIMILAR
THING OF VALUE OR UTILITY PERFORMED, FURNISHED, PROVIDED, GRANTED...BY
ANY FEDERAL AGENCY...TO OR FOR ANY PERSON (INCLUDING...,
CORPORATIONS...)...SHALL BE SELF-SUSTAINING TO THE FULL EXTENT
POSSIBLE, AND THE HEAD OF EACH FEDERAL AGENCY IS AUTHORIZED BY
REGULATION...TO PRESCRIBE THEREFOR...SUCH FEE, CHARGE, OR PRICE, IF
ANY, AS HE SHALL DETERMINE...TO BE FAIR AND EQUITABLE TAKING INTO
CONSIDERATION DIRECT AND INDIRECT COST TO THE GOVERNMENT, VALUE TO THE
RECIPIENT, PUBLIC POLICY OR INTEREST SERVED, AND OTHER PERTINENT
FACTS....  /1/  PETITIONER IS A TRADE ASSOCIATION REPRESENTING
COMMUNITY ANTENNA TELEVISION (CATV) SYSTEMS WHICH TRANSMIT TV PROGRAMS
BY CABLE.  THE FEDERAL COMMUNICATIONS COMMISSION IS AUTHORIZED TO
REGULATE THESE CATV OUTLETS, AS THE COURT HELD IN UNITED STATES V.
SOUTHWESTERN CABLE CO., 392 U.S. 157.  THE POWER TO REGULATE, THOUGH
NOT IN THE FORM OF GRANTING LICENSES, EXTENDS TO THE PROMULGATION OF
REGULATIONS REQUIRING THE COMPULSORY ORIGINATION OF PROGRAMS BY CATV. 
UNITED STATES V. MIDWEST VIDEO CORP., 406 U.S. 649.  THESE CATV'S,
HOWEVER, ARE NOT UNDER THE EXCLUSIVE OVERSIGHT OF THE COMMISSION. 
LOCAL GOVERNMENTS AND EVEN SOME STATES PROVIDE PERMITS OR FRANCHISES TO
CATV'S, INCLUDING RIGHTS OF WAY FOR THE CABLES USED.  SOME COMMUNITIES
IN RETURN FOR THEIR PERMITS REQUIRE THE CATV TO PAY AN ANNUAL
PERCENTAGE FEE AS A GROSS RECEIPTS TAX.  /2/ 

THE COMMISSION IN 1964 ESTABLISHED ONLY NOMINAL FILING FEES THAT
PRODUCED REVENUES WHICH APPROXIMATED 25% OF THE COMMISSION'S ANNUAL
APPROPRIATION.  SEE 21 F. C. C. 2D 502, 503.  SEE ALSO AERONAUTICAL
RADIO, INC. V. UNITED STATES, 335 F.2D 304.  THE BUREAU OF THE BUDGET
URGED HIGHER FEE SCHEDULES; AND SO DID THE COMMITTEES OF THE CONGRESS. 
SEE H. R. REP. NO. 91 - 316, PP. 7 - 8, AND H. R. CONF. REP. NO. 91 -
649, P. 6, WHERE IT WAS STATED: 

" THE COMMITTEE OF CONFERENCE IS AGREED THAT THE FEE STRUCTURE FOR
THE COMMISSION SHOULD BE ADJUSTED TO FULLY SUPPORT ALL ITS ACTIVITIES
SO THE TAX-PAYERS WILL NOT BE REQUIRED TO BEAR ANY PART OF THE LOAD IN
VIEW OF THE PROFITS REGULATED BY THIS AGENCY." 

THE COMMISSION, AFTER NOTICE AND HEARING, REVISED EXISTING FEES FOR
LICENSEES AND FOR THE FIRST TIME IMPOSED FEES UPON CATV'S.  IT FIRST
ESTIMATED ITS DIRECT AND INDIRECT COSTS FOR CATV REGULATION WHICH WERE
$1,145,400 OR 4.6% OF ITS TOTAL BUDGET REQUEST FOR THAT YEAR.  FILING
FEES WERE RETAINED; AND THERE WAS ADDED AN ANNUAL FEE FOR EACH CABLE
TELEVISION SYSTEM AT THE RATE OF 30 CENTS FOR EACH SUBSCRIBER.  THE
COMMISSION, FINDING THAT SUBSCRIPTION RATES CLUSTERED AT ABOUT $5 A
MONTH, CONCLUDED THAT THE 30-CENT FEE WOULD TYPICALLY AMOUNT TO ONLY
ABOUT ONE-HALF OF 1% OF A CATV SYSTEM'S GROSS REVENUES FROM
SUBSCRIPTION.  THE FEES WOULD PRODUCE, IT SAID, $1,145,000 ANNUALLY,
AND IT CONCLUDED THAT THE 30-CENT FEE WOULD APPROXIMATE THE "VALUE TO
THE RECIPIENT" USED IN THE ACT, 23 F.C.C. 2D 880; 28 F.C.C. 2D 139. 

PETITIONER OBTAINED REVIEW OF THE DECISION IN THE COURT OF APPEALS,
WHICH APPROVED THE COMMISSION'S ACTION, 464 F.2D 1313.  THE CASE IS
HERE ON A PETITION FOR CERTIORARI WHICH WE GRANTED, 411 U.S. 981,
BECAUSE OF AN APPARENT CONFLICT BETWEEN THE DECISION IN THIS CASE AND
THE DECISION IN NEW ENGLAND POWER CO. V. FPC, 151 U.S. APP. D.C. 371,
467 F.2D 425, OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT. 

TAXATION IS A LEGISLATIVE FUNCTION AND CONGRESS, WHICH IS THE SOLE
ORGAN FOR LEVYING TAXES, /3/  MAY ACT ARBITRARILY AND DISREGARD
BENEFITS BESTOWED BY THE GOVERNMENT ON A TAXPAYER AND GO SOLELY ON
ABILITY TO PAY, BASED ON PROPERTY OR INCOME.  A FEE, HOWEVER, IS
INCIDENT TO A VOLUNTARY ACT, E.G., A REQUEST THAT A PUBLIC AGENCY
PERMIT AN APPLICANT TO PRACTICE LAW OR MEDICINE OR CONSTRUCT A HOUSE OR
RUN A BROADCAST STATION.  THE PUBLIC AGENCY PERFORMING THOSE SERVICES
NORMALLY MAY EXACT A FEE FOR A GRANT WHICH, PRESUMABLY, BESTOWS A
BENEFIT ON THE APPLICANT, NOT SHARED BY OTHER MEMBERS OF SOCIETY.  IT
WOULD BE SUCH A SHARP BREAK WITH OUR TRADITIONS TO CONCLUDE THAT
CONGRESS HAD BESTOWED ON A FEDERAL AGENCY THE TAXING POWER THAT WE READ
31 U.S.C. 483A NARROWLY AS AUTHORIZING NOT A "TAX" BUT A "FEE."  A
"FEE"  CONNOTES A "BENEFIT" AND THE ACT BY ITS USE OF THE STANDARD
"VALUE TO THE RECIPIENT" CARRIES THAT CONNOTATION.  THE ADDITION OF
"PUBLIC POLICY OR INTEREST SERVED, AND OTHER PERTINENT FACTS," IF READ
LITERALLY, CARRIES AN AGENCY FAR FROM ITS CUSTOMARY ORBIT AND PUTS IT
IN SEARCH OF REVENUE IN THE MANNER OF AN APPROPRIATIONS COMMITTEE OF
THE HOUSE. 

THE LAWMAKER MAY, IN LIGHT OF THE "PUBLIC POLICY OR INTEREST SERVED,"
MAKE THE ASSESSMENT HEAVY IF THE LAWMAKER WANTS TO DISCOURAGE THE
ACTIVITY; /4/  OR IT MAY MAKE THE LEVY SLIGHT IF A BOUNTY IS TO BE
BESTOWED; OR THE LAWMAKER MAY MAKE A SUBSTANTIAL LEVY TO KEEP
ENTREPRENEURS FROM EXPLOITING A SEMIPUBLIC CAUSE FOR THEIR OWN PERSONAL
AGGRANDIZEMENT.  SUCH ASSESSMENTS ARE IN THE NATURE OF "TAXES" WHICH
UNDER OUR CONSTITUTIONAL REGIME ARE TRADITIONALLY LEVIED BY CONGRESS. 

THERE IS NO DOUBT THAT THE MAIN FUNCTION OF THE COMMISSION IS TO
SAFEGUARD THE PUBLIC INTEREST IN THE BROADCASTING ACTIVITIES OF MEMBERS
OF THE INDUSTRY.  IF ASSESSMENTS ARE MADE BY THE COMMISSION AGAINST
MEMBERS OF THE INDUSTRY WHICH ARE SUFFICIENT TO RECOUP COSTS TO THE
COMMISSION FOR ITS OVERSIGHT, THE CATV'S AND OTHER BROADCASTERS WOULD
BE PAYING NOT ONLY FOR BENEFITS THEY RECEIVED BUT FOR THE PROTECTIVE
SERVICES RENDERED THE PUBLIC BY THE COMMISSION.  THE FIXING OF SUCH
ASSESSMENTS, IT IS ARGUED, IS THE LEVYING OF TAXES.  THE COURT,
SPEAKING THROUGH MR. CHIEF JUSTICE HUGHES SAID IN SCHECHTER CORP. V.
UNITED STATES, 295 U.S. 495, 529: 

" THE CONSTITUTION PROVIDES THAT ' ALL LEGISLATIVE POWERS HEREIN
GRANTED SHALL BE VESTED IN A CONGRESS OF THE UNITED STATES, WHICH SHALL
CONSIST OF A SENATE AND HOUSE OF REPRESENTATIVES.'  ART. I, 1.  AND THE
CONGRESS IS AUTHORIZED ' TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND
PROPER FOR CARRYING INTO EXECUTION'  ITS GENERAL POWERS.  ART. I, 8,
PAR. 18.  THE CONGRESS IS NOT PERMITTED TO ABDICATE OR TO TRANSFER TO
OTHERS THE ESSENTIAL LEGISLATIVE FUNCTIONS WITH WHICH IT IS THUS
VESTED." 

CONGRESS, OF COURSE, DOES DELEGATE POWERS TO AGENCIES, SETTING
STANDARDS TO GUIDE THEIR DETERMINATION.  THUS, IN HAMPTON & CO. V.
UNITED STATES, 276 U.S. 394, CONGRESS ENACTED A FLEXIBLE TARIFF LAW
WHICH AUTHORIZED THE IMPOSITION OF CUSTOMS DUTIES ON ARTICLES IMPORTED
WHICH EQUALED THE DIFFERENCE BETWEEN THE COST OF PRODUCING THEM IN A
FOREIGN COUNTRY AND OF SELLING THEM HERE AND THE COST OF PRODUCING AND
SELLING LIKE OR SIMILAR ARTICLES IN THE UNITED STATES.  PROVISION WAS
MADE FOR THE INVESTIGATION AND DETERMINATION OF THESE DIFFERENCES BY
THE TARIFF COMMISSION WHICH REPORTED TO THE PRESIDENT WHO INCREASED OR
DECREASED THE DUTY ACCORDINGLY.  THE COURT IN SUSTAINING THAT SYSTEM
SAID, " IF CONGRESS SHALL LAY DOWN BY LEGISLATIVE ACT AN INTELLIGIBLE
PRINCIPLE TO WHICH THE PERSON OR BODY AUTHORIZED TO FIX SUCH RATES IS
DIRECTED TO CONFORM, SUCH LEGISLATIVE ACTION IS NOT A FORBIDDEN
DELEGATION OF LEGISLATIVE POWER."  ID., AT 409. 

WHETHER THE PRESENT ACT MEETS THE REQUIREMENT OF SCHECHTER AND
HAMPTON IS A QUESTION WE DO NOT REACH.  BUT THE HURDLES REVEALED IN
THOSE DECISIONS LEAD US TO READ THE ACT NARROWLY TO AVOID
CONSTITUTIONAL PROBLEMS. 

THE PHRASE "VALUE TO THE RECIPIENT" IS, WE BELIEVE, THE MEASURE OF
THE AUTHORIZED FEE.  THE WORDS "PUBLIC POLICY OR INTEREST SERVED, AND
OTHER PERTINENT FACTS"  WOULD NOT SEEM RELEVANT TO THE PRESENT CASE,
WHATEVER MAY BE THEIR ULTIMATE REACH.  THE BACKBONE OF CATV IS
INDIVIDUAL ENTERPRISE AND INGENUITY, NOT GOVERNMENTAL LARGESSE.  THE
REGULATORY REGIME PLACED BY CONGRESS AND THE COURTS OVER CATV WAS NOT
DESIGNED TO MAKE ENTREPRENEURS RICH BUT TO SERVE THE PUBLIC INTEREST BY
"MAKING) AVAILABLE...TO ALL THE PEOPLE OF THE UNITED STATES A RAPID,
EFFICIENT, NATION-WIDE, AND WORLD-WIDE WIRE AND RADIO COMMUNICATIONS
SERVICE."  48 STAT. 1064, AS AMENDED, 47 U.S.C. 151. 

WHILE THOSE WHO OPERATE CATV'S MAY RECEIVE SPECIAL BENEFITS, WE
CANNOT BE SURE THAT THE COMMISSION USED THE CORRECT STANDARD IN SETTING
THE FEE.  IT IS NOT ENOUGH TO FIGURE THE TOTAL COST (DIRECT AND
INDIRECT) TO THE COMMISSION FOR OPERATING A CATV UNIT OF SUPERVISION
AND THEN TO CONTRIVE A FORMULA THAT REIMBURSES THE COMMISSION FOR THAT
AMOUNT.  CERTAINLY SOME OF THE COSTS INURED TO THE BENEFIT OF THE
PUBLIC, UNLESS THE ENTIRE REGULATORY SCHEME IS A FAILURE, WHICH WE
REFUSE TO ASSUME.  THE PHILOSOPHY OF 483A WAS STATED BY CONGRESSMAN
SIDNEY YATES OF THE HOUSE COMMITTEE ON APPROPRIATIONS.  WHILE HE SPOKE
OF TV AND RADIO BROADCASTERS, WHAT HE SAID IS GERMANE TO THE CATV
PROBLEM: 

" I THINK IT IS ONLY FAIR THAT IN EXCHANGE FOR THE FRANCHISE THAT
THE GOVERNMENT GIVES THE BROADCASTING COMPANY AND THE PROTECTION WHICH
THE GOVERNMENT AFFORDS TO SUCH BROADCASTING COMPANY TO ASSURE ITS
FREEDOM FROM INTERFERENCE IN THE OPERATION OF ITS BROADCASTING
FACILITIES IN THE PARTICULAR POINT OF THE SPECTRUM WHICH IT
OCCUPIES,...IT SHOULD PAY SOME OF THE COSTS OF THE HEARINGS.  IT IS
PERFECTLY PROPER THAT THE FRANCHISED COMPANY MAKE A PROFIT, AND THERE
HAS BEEN MUCH PROFIT MAKING SUCH COMPANIES SHOULD ASSUME A GREATER
SHARE OF THE COSTS, BECAUSE REGULATION IS NECESARY."  97 CONG. REC.
4809. 

THAT CONGRESSIONAL AIM CAN BE ACHIEVED WITHIN THE FRAMEWORK OF
"VALUE TO THE RECIPIENT" AS CONTRASTED TO THE PUBLIC POLICY OR INTEREST
THAT IS ALSO SERVED. 

THE RESULT IS THAT WE REVERSE THE COURT OF APPEALS SO THAT THE CASE
CAN BE REMANDED TO THE FEDERAL COMMUNICATIONS COMMISSION FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  THE COMMITTEE REPORT, H. R. REP. NO. 384 82D CONG, 1ST SESS., 2
- 3, MAKES THE FOLLOWING COMMENT ON THIS MEASURE: 

" THE COMMITTEE IS CONCERNED THAT THE GOVERNMENT IS NOT RECEIVING
FULL RETURN FROM MANY OF THE SERVICES WHICH IT RENDERS TO SPECIAL
BENEFICIARIES.  MANY FEES FOR SUCH SERVICES ARE SPECIFICALLY FIXED BY
LAW, AND IN SOME CASES, IT IS SPECIFICALLY PROVIDED THAT NO FEES SHALL
BE CHARGED.  IN OTHER CASES, HOWEVER, NO FEES ARE CHARGED EVEN THOUGH
THE CHARGING OF FEES IS NOT PROHIBITED; AND IN STILL OTHERS, FEES ARE
CHARGED UPON THE BASIS OF FORMULAE PRESCRIBED IN LAW, BUT THE
APPLICATION OF THE FORMULAE NEEDS TO BE RE-EXAMINED TO BRING THE ACTUAL
CHARGES INTO LINE WITH PRESENT-DAY COSTS AND OTHER RELATED
CONSIDERATIONS. 

" IT IS UNDERSTOOD THAT OTHER COMMITTEES OF THE CONGRESS HAVE
INTERESTED THEMSELVES IN THIS MATTER AND THAT STUDIES NOW ARE UNDER WAY
WHICH MAY RESULT IN FURTHER LEGISLATION TO REQUIRE THAT ADEQUATE
CONSIDERATION BE RECEIVED FOR SUCH SERVICES.  HOWEVER, SUCH STUDIES ARE
NECESSARILY TIME-CONSUMING AND THE REQUIRED LEGISLATION MAY NOT BE
ENACTED FOR A CONSIDERABLE PERIOD.  ACCORDINGLY, THE COMMITTEE HAS
INSERTED LANGUAGE IN THE BILL (TITLE V, PAGE 60) WHICH WOULD AUTHORIZE
AND ENCOURAGE THE CHARGING OR INCREASING OF FEES TO THE EXTENT
PERMITTED UNDER PRESENT BASIC LAWS, BUT WHICH WOULD IN NO WAY CONFLICT
WITH STUDIES NOW UNDER WAY TO EFFECT CHANGES IN SUCH BASIC LAWS. 

" IT IS ESTIMATED THAT IN 1952 THE GOVERNMENT WILL RECEIVE MORE THAN
$300,000,000 IN FEES FROM SOURCES OF THE TYPE HERE UNDER
CONSIDERATION.  IT SEEMS ENTIRELY POSSIBLE THAT MANY OF THESE FEES
COULD BE RAISED, AND THAT FEES COULD BE CHARGED FOR OTHER SERVICES OF
SIMILAR TYPES IN CASES WHERE NO CHARGE IS NOW MADE, TO THE EXTENT THAT
THE GOVERNMENT MIGHT REALIZE UPWARDS OF $50,000,000 ADDITIONAL
REVENUE. 

" THE BILL WOULD PROVIDE AUTHORITY FOR GOVERNMENT AGENCIES TO MAKE
CHARGES FOR THESE SERVICES IN CASES WHERE NO CHARGE IS MADE AT PRESENT,
AND TO REVISE CHARGES WHERE PRESENT CHARGES ARE TOO LOW, EXCEPT IN
CASES WHERE THE CHARGE IS SPECIFICALLY FIXED BY LAW OR THE LAW
SPECIFICALLY PROVIDES THAT NO CHARGE SHALL BE MADE.  IT IS NOT THE
COMMITTEE'S INTENTION IN INCLUDING THIS PROVISION TO DISTURB EXISTING
PRACTICES WITH RESPECT TO CHARGES FOR POSTAL SERVICES, SALES OF POWER,
OR THE INTEREST ON LOANS BY THE GOVERNMENT." 

/2/  THE MOST RECENT CATV RULES ADOPTED BY THE COMMISSION (37 FED.
REG. 3280) REQUIRE A CATV TO RECEIVE A CERTIFICATE OF COMPLIANCE FROM
THE COMMISSION, 47 CFR 76.11 (B), AND REQUIRE IT TO OBTAIN FROM THE
APPROPRIATE LOCAL GOVERNMENT AUTHORITY A CERTIFICATE CONTAINING
PRESCRIBED RECITAIONS AND PROVISIONS.  47 CFR 76.31.  THE NEW RULES
ALSO LIMIT THE FRANCHISE FEES THAT MAY BE IMPOSED ON CATV'S BY THE
LOCALITIES WHERE THEY OPERATE.  47 CFR 76.31.  INCLUDED IN THE NEW
RULES ARE RESTRICTIONS ON TELEPHONE COMPANIES ON WHOSE POLES THE CATV
CABLE IS USUALLY STRUNG.  SEE 47 CFR 63.54 - 63.57, 64.601 - 64.602. 
AND SEE GENERAL TELEPHONE CO. V. UNITED STATES, 449 F.2D 846, 851;
REPORT OF JAN. 14, 1974, CABINET COMMITTEE ON CABLE COMMUNICATIONS
(KNOWN AS THE WHITEHEAD REPORT).     /3/  BY ART. I, 8, CL. 1, OF THE
CONSTITUTION IT IS THE CONGRESS THAT HAS THE " POWER TO LAY AND COLLECT
TAXES." 

/4/ MR. CHIEF JUSTICE MARSHALL IS CREDITED WITH THE STATEMENT THAT
"THE POWER TO TAX IS THE POWER TO DESTROY," TO WHICH MR. JUSTICE HOLMES
REPLIED, " THE POWER TO TAX IS NOT THE POWER TO DESTROY WHILE THIS
COURT SITS."  PANHANDLE OIL CO. V. KNOX, 277 U.S. 218, 223 (DISSENTING
OPINION). 

MR. JUSTICE BLACKMUN AND MR. JUSTICE POWELL TOOK NO PART IN THE
DECISION OF THIS CASE. 

(FOR DISSENTING OPINION OF MR. JUSTICE MARSHALL, SEE POST, P. 352.) 

STUART F. FELDSTEIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS STEPHEN A. GOLD.     EDWARD R. KORMAN ARGUED THE CAUSE
FOR THE UNITED STATES ET AL. WITH HIM ON THE BRIEF WERE SOLICITOR
GENERAL BORK, ASSISTANT ATTORNEY GENERAL KAUPER, JOHN W. PETTIT, AND
JOSEPH A. MARINO. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY HAROLD J.
COHEN, F. MARK GARLINGHOUSE, AND LLOYD D. YOUNG FOR THE AMERICAN
TELEPHONE & TELEGRAPH CO., AND BY JOHN B. SUMMERS FOR THE NATIONAL
ASSOCIATION OF BROADCASTERS. 
..END :






















FPC V. NEW ENGLAND POWER CO., 415 U.S. 345 


       FEDERAL POWER COMMISSION V. NEW ENGLAND POWER CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

     NO. 72 - 1162.  ARGUED DECEMBER 3, 1973--DECIDED MARCH 4,

           1974; 151 U.S. APP. D.C. 371, 467 F.2D 425, AFFIRMED. 


    THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952 (THE ACT)

  AUTHORIZES EACH FEDERAL AGENCY TO PRECRIBE A FEE, CHARGE, OR

  PRICE FOR SERVICES PROVIDED BY THE AGENCY "TO OR FOR ANY PERSON

  (INCLUDING GROUPS...)," DETERMINED TO BE FAIR AND EQUITABLE,

  CONSIDERATION BEING TAKEN OF "DIRECT AND INDIRECT COST TO THE

  GOVERNMENT, VALUE TO THE RECIPIENT, PUBLIC POLICY OR INTEREST

  SERVED, AND OTHER PERTINENT FACTS...."  PURSUANT TO THE ACT, THE

  FEDERAL POWER COMMISSION IMPOSED AN ANNUAL ASSESSMENT AGAINST ALL

  JURISDICTIONAL ELECTRIC UTILITIES IN PROPORTION TO THEIR

  WHOLESALE SALES AND INTERCHANGE OF ELECTRICITY, AND AGAINST ALL

  NATURAL GAS COMPANIES WITH OPERATING REVENUES OF $1,000,000 OR

  MORE IN PROPORTION TO THEIR DELIVERIES OF NATURAL GAS IN

  INTERSTATE COMMERCE.  ON PETITIONS FOR REVIEW, THE COURT OF

  APPEALS SET ASIDE THESE ANNUAL CHARGES, HOLDING THAT WHOLE

  INDUSTRIES ARE NOT IN THE CATEGORY OF THOSE WHO MAY BE ASSESSED

  UNDER THE ACT, THE THRUST OF WHICH REACHES ONLY SPECIFIC CHARGES

  FOR SPECIFIC SERVICES TO SPECIFIC INDIVIDUALS OR COMPANIES. 

  HELD: 

     1.  WHILE THE ACT INCLUDES SERVICES RENDERED "TO OR FOR ANY

PERSON (INCLUDING GROUPS...)," SINCE THE ACT IS TO BE CONSTRUED

  TO COVER ONLY "FEES" AND NOT "TAXES," NATIONAL CABLE TELEVISION

  ASSN. V. UNITED STATES, ANTE, P. 336, THE "FEE" PRESUPPOSES AN

  APPLICATION FOR THE AGENCY'S SERVICES, WHETHER BY A SINGLE

  COMPANY OR GROUP OF COMPANIES OR THE RECEIPT OF A SPECIFIC

  BENEFICIAL SERVICE.  P. 349. 

    2.  THE ACT IS TO BE CONSTRUED AS AUTHORIZING A REASONABLE

  CHARGE TO "EACH IDENTIFIABLE RECIPIENT FOR A MEASURABLE UNIT OR

  AMOUNT OF GOVERNMENT SERVICE OR PROPERTY FROM WHICH HE DERIVES A

  SPECIAL BENEFIT," AND AS PRECLUDING A CHARGE FOR SERVICES

  RENDERED "WHEN THE IDENTIFICATION OF THE ULTIMATE BENEFICIARY IS

  OBSCURE AND THE SERVICES CAN BE PRIMARILY CONSIDERED AS

  BENEFITTING BROADLY THE GENERAL PUBLIC."  PP. 349 - 351. 

     DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND STEWART, WHITE, AND REHNQUIST, JJ., JOINED. 

  MARSHALL, J., FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH

BRENNAN, J., JOINED, POST, P. 352.  BLACKMUN AND POWELL, JJ.,

  TOOK NO PART IN THE DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, COMPANION TO NATIONAL CABLE TELEVISION ASSN. V. UNITED
STATES, ANTE, P. 336, RAISES ANOTHER IMPORTANT PROBLEM OF CONSTRUCTION
OF THE PROVISIONS OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952,
TIT. 5, 65 STAT. 290, 31 U.S.C. 483A.  THE FEDERAL POWER COMMISSION
ESTABLISHED FILING FEES UNDER THE NATURAL GAS ACT AND UNDER THE FEDERAL
POWER ACT.  THESE FILING FEES HAVE NOT BEEN CHALLENGED.  WHAT WAS
CHALLENGED WERE ANNUAL ASSESSMENTS UNDER BOTH ACTS, LEVIED IN AN EFFORT
OF THE AGENCY TO RECOUP SOME OF THE REMAINING COSTS UNDER THE TWO
ACTS. 

WITH RESPECT TO ELECTRIC UTILITIES, THE COMMISSION DETERMINES EACH
YEAR THE COSTS OF ADMINISTERING THE FEDERAL POWER ACT.  THE COSTS
ASSOCIATED WITH THE COMMISSION'S EFFORTS TO PROMOTE THE CO-ORDINATION
AND RELIABILITY OF NONJURISDICTIONAL ELECTRIC SYSTEMS ARE NOT
INCLUDED.  THE COMMISSION ALSO DEDUCTS FROM ADMINISTRATION COSTS THE
COSTS ASSOCIATED WITH SERVICES RENDERED TO ELECTRIC SYSTEMS NOT SUBJECT
TO THE COMMISSION'S JURISDICTION AND THE AMOUNT RECEIVED DURING THE
YEAR FROM FILING FEES.  THE REMAINING BALANCE IS ASSESSED AGAINST
JURISDICTIONAL UTILITIES /1/  IN PROPORTION TO THEIR WHOLESALE SALES
AND INTERCHANGE OF ELECTRICITY.  IN 1971 THESE COMPANIES HAD GROSS
REVENUES OF SOME $21 BILLION AND NET INCOME OF NEARLY $4 BILLION.  THE
ANNUAL ASSESSMENT CHALLENGED HERE INVOLVED 1973 AND FOR ALL SUCH
ELECTRIC COMPANIES WAS $5 MILLION OR 0.024% OF GROSS REVENUE AND 0.14%
OF NET INCOME. 

AS RESPECTS NATURAL GAS COMPANIES, THE COMMISSION DETERMINES EACH
YEAR THE COSTS OF ADMINISTERING THE NATURAL GAS PIPELINE PROGRAMS UNDER
THE NATURAL GAS ACT, 52 STAT. 821, 15 U.S.C. 717 ET SEQ.  THESE COSTS,
AFTER DEDUCTING AMOUNTS RECEIVED FROM FILING FEES, ARE ASSESSED AGAINST
ALL NATURAL GAS COMPANIES WITH ANNUAL OPERATING REVENUES OF $1,000,000
OR MORE IN PROPORTION TO THEIR DELIVERIES OF NATURAL GAS IN INTERSTATE
COMMERCE.  IN ADDITION, ALL NATURAL GAS COMPANIES REQUIRED TO FILE AN
ANNUAL REPORT ON THEIR TOTAL GAS SUPPLY (18 CFR 260.7) ARE ASSESSED ONE
TENTH OF A MILL FOR EACH THOUSAND CUBIC FEET OF NEW RESERVES OF NATURAL
GAS CERTIFICATED EACH YEAR TO SUPPORT THE COST OF THE PRODUCER
CERTIFICATE PROGRAM. 

THE COMMISSION IN ITS REPORT, 45 F.P.C. 440 AND 964, SAID AS
RESPECTS BOTH ELECTRIC UTILITIES AND NATURAL GAS COMPANIES THAT
REGULATIONS HAVE PROVIDED "THE FOUNDATION FOR THE SOUND FINANCIAL
CONDITION WHICH PUBLIC UTILITIES AND NATURAL GAS COMPANIES HAVE
ACHIEVED."  ID., AT 445.  IT MENTIONED THE "INDUSTRY-WIDE RECOGNITION
OF THE BENEFITS ACCRUING FROM ONLY ONE FACET OF THE COMMISSION'S
ACTIVITIES--THE ADOPTION OF A UNIFORM ACCOUNTING SYSTEM."  ID., AT 445
N. 5.  THE COMMISSION, WHILE NOTING THAT ITS REGULATORY ACTIVITIES WERE
BENEFICIAL TO CONSUMERS, ADDED THAT ITS ACTIONS: 

"HAVE REDOUNDED TO THE BENEFIT OF BOTH INDUSTRIES BY CREATING THE
ECONOMIC CLIMATE FOR GREATER USAGE OF THE SERVICES OF THE REGULATED
COMPANIES WHICH IN TURN HAVE FURTHER STRENGTHENED THEIR FINANCIAL
STABILITY AND THEIR ABILITY TO SELL DEBT AND EQUITY SECURITIES REQUIRED
FOR CAPITAL ADDITIONS TO MEET EVER-INCREASING DEMANDS."  ID., AT 445. 

AS RESPECTS ELECTRIC UTILITIES IT NOTED THAT ITS REGIME WAS "SYSTEM
WIDE AND BENEFICIAL" TO THE COMPANIES.  ID., AT 966.  AS RESPECTS
NATURAL GAS PIPELINES IT LISTED ITS ACTIVITIES THAT WERE BENEFICIAL TO
THEM: 

"THE ISSUANCE OF TEMPORARY CERTIFICATES TO EXPEDITE DELIVERIES, THE
ELIMINATION OF INDEFINITE PRICE ESCALATION PROVISIONS, AND THE CONTROL
OVER THE QUALITY OF NATURAL GAS TO BE DELIVERED AND THE LENGTH OF THE
PERIOD IN WHICH SUPPLIES MAY BE DELIVERED WHERE ADVANCE PAYMENTS ARE
MADE BY THE PIPELINES."  ID., AT 967. 

ON PETITIONS FOR REVIEW THE COURT OF APPEALS SET ASIDE THAT PORTION
OF THE COMMISSION'S ORDER ESTABLISHING ANNUAL CHARGES, 151 U.S. APP.
D.C. 371, 467 F.2D 425.  AS ALREADY NOTED, THE CASE IS HERE ON A
PETITION FOR CERTIORARI, 411 U.S. 981. 

THE ACT IN QUESTION, 31 U.S.C. 483A, AUTHORIZES THE HEAD OF EACH
FEDERAL AGENCY TO PRESCRIBE A "FEE, CHARGE, OR PRICE" FOR ANY "BENEFIT,
PRIVILEGE,...LICENSE, PERMIT, CERTIFICATE, REGISTRATION OR SIMILAR
THING OF VALUE...PROVIDED ...BY (THE) FEDERAL AGENCY...FOR ANY PERSON
(INCLUDING GROUPS,...CORPORATIONS...)" WHICH HE DETERMINES "TO BE FAIR
AND EQUITABLE TAKING INTO CONSIDERATION DIRECT AND INDIRECT COST TO THE
GOVERNMENT, VALUE TO THE RECIPIENT, PUBLIC POLICY OR INTEREST SERVED,
AND OTHER PERTINENT FACTS...." 

THE COURT OF APPEALS HELD THAT WHOLE INDUSTRIES ARE NOT IN THE
CATEGORY OF THOSE WHO MAY BE ASSESSED, THE THRUST OF THE ACT REACHING
ONLY SPECIFIC CHARGES FOR SPECIFIC SERVICES TO SPECIFIC INDIVIDUALS OR
COMPANIES.  WE AGREE WITH THE COURT OF APPEALS. 

THE REPORT ON THE ACT, H.R. REP. NO. 384, 82D CONG., 1ST SESS., 2,
STATES THAT "(THE COMMITTEE IS CONCERNED THAT THE GOVERNMENT IS NOT
RECEIVING FULL RETURN FROM MANY OF THE SERVICES WHICH IT RENDERS TO
SPECIAL BENEFICIARIES"  (EMPHASIS ADDED).  IT IS TRUE THAT THE ACT
INCLUDES SERVICES RENDERED "TO OR FOR ANY PERSON (INCLUDING
GROUPS...)."  BUT IF WE ARE TO CONSTRUE THE ACT TO COVER ONLY "FEES"
AND NOT "TAXES"--AS WE HELD SHOULD BE DONE IN THE NATIONAL CABLE
TELEVISION CASE, ANTE, P. 336, THE "FEE" PRESUPPOSES AN APPLICATION
WHETHER BY A SINGLE COMPANY OR BY A GROUP OF COMPANIES.  THE OFFICE OF
MANAGEMENT AND BUDGET (THEN KNOWN AS THE BUREAU OF THE BUDGET) ISSUED A
CIRCULAR IN 1959 /2/  CONSTRUING THE ACT.  THAT CIRCULAR STATED THAT A
REASONABLE CHARGE "SHOULD BE MADE TO EACH IDENTIFIABLE RECIPIENT FOR A
MEASURABLE UNIT OR AMOUNT OF GOVERNMENT SERVICE OR PROPERTY FROM WHICH
HE DERIVES A SPECIAL BENEFIT.  /3/  (EMPHASIS ADDED.)  THE CIRCULAR
ALSO STATES THAT NO CHARGE SHOULD BE MADE FOR SERVICES RENDERED, "WHEN
THE IDENTIFICATION OF THE ULTIMATE BENEFICIARY IS OBSCURE AND THE
SERVICE CAN BE PRIMARILY CONSIDERED AS BENEFITTING BROADLY THE GENERAL
PUBLIC.  /4/ 

WE BELIEVE THAT IS THE PROPER CONSTRUCTION OF THE ACT.  THOUGH IT
GREATLY NARROWS THE ACT FROM THE DIMENSIONS URGED BY THE COMMISSION, IT
KEEPS IT WITHIN THE BOUNDARIES OF THE "FEE" SYSTEM AND AWAY FROM THE
DOMAIN OF "TAXES" TOWARD WHICH THE COMMISSION'S "ECONOMIC CLIMATE"
ARGUMENT WOULD LEAD.  SOME OF THE ASSESSMENTS MADE BY THE COMMISSION
UNDER ITS FORMULA WOULD BE ON COMPANIES WHICH HAD NO PROCEEDINGS BEFORE
THE COMMISSION DURING THE YEAR IN QUESTION.  THE "IDENTIFIABLE
RECIPIENT" OF A UNIT OF SERVICE FROM WHICH "HE DERIVES A SPECIAL
BENEFIT," TO QUOTE THE OFFICE OF MANAGEMENT AND BUDGET, DOES NOT
DESCRIBE MEMBERS OF AN INDUSTRY WHICH HAVE NEITHER ASKED FOR NOR
RECEIVED THE COMMISSION'S SERVICES DURING THE YEAR IN QUESTION.  A
BLANKET RULING BY THE COMMISSION, SAY ON ACCOUNTING PRACTICES, MAY NOT
BE THE RESULT OF AN APPLICATION.  BUT EACH MEMBER OF THE INDUSTRY WHICH
IS REQUIRED TO ADOPT THE NEW ACCOUNTING SYSTEM IS AN "IDENTIFIABLE
RECIPIENT" OF THE SERVICE AND COULD BE CHARGED A FEE, IF THE NEW SYSTEM
WAS INDEED BENEFICIAL TO THE MEMBERS OF THE INDUSTRY.  THERE MAY WELL
BE OTHER VARIATIONS OF A LIKE NATURE WHICH WOULD WARRANT THE FIXING OF
A "FEE" FOR SERVICES RENDERED.  BUT WHAT WAS DONE HERE IS NOT WITHIN
THE SCOPE OF THE ACT.  HENCE THE JUDGMENT OF THE COURT OF APPEALS IS

      AFFIRMED. 

/1/  PART I OF THE FEDERAL POWER ACT COVERING LICENSES TO
HYDROELECTRIC COMPANIES, SEE 16 U.S.C. 797 ET SEQ., IS NOT INVOLVED IN
THIS LITIGATION, ONLY PARTS II, 49 STAT. 847, 16 U.S.C. 824 ET SEQ.,
AND III, 49 STAT. 854, 16 U.S.C. 825 ET SEQ. MOREOVER, THE
"JURISDICTIONAL" ASPECT OF A PUBLIC UTILITY'S ACTIVITIES REFERS, INTER
ALIA, TO THE TRANSMISSION OF ELECTRIC ENERGY IN INTERSTATE COMMERCE AND
TO THE SALE OF ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE AS
CONTAINED IN 201 OF THE ACT, 49 STAT. 847, 16 U.S.C. 824 ET SEQ., THE
PROVISION THAT FILLED THE GAP CREATED BY PUBLIC UTILITIES COMM'N V.
ATTLEBORO STEAM & ELECTRIC CO., 273 U.S. 83.  SEE UNITED STATES V.
PUBLIC UTILITIES COMM'N, 345 U.S. 295. 

/2/  BUDGET CIRCULAR NO. A-25, SEPT. 23, 1959. 

/3/  THE CIRCULAR GOES ON TO STATE THAT THE SERVICES INCLUDE AGENCY
ACTION WHICH:  "PROVIDES SPECIAL BENEFITS...ABOVE AND BEYOND THOSE
WHICH ACCRUE TO THE PUBLIC AT LARGE.... FOR EXAMPLE, A SPECIAL BENEFIT
WILL BE CONSIDERED TO ACCRUE AND A CHARGE SHOULD BE IMPOSED WHEN A
GOVERNMENT-RENDERED SERVICE: 

"(A) ENABLES THE BENEFICIARY TO OBTAIN MORE IMMEDIATE OR SUBSTANTIAL
GAINS OR VALUES (WHICH MAY OR MAY NOT BE MEASURABLE IN MONETARY TERMS)
THAN THOSE WHICH ACCRUE TO THE GENERAL PUBLIC (E.G., RECEIVING A
PATENT, CROP INSURANCE, OR A LICENSE TO CARRY ON A SPECIFIC BUSINESS);
OR 

"(B) PROVIDES BUSINESS STABILITY OR ASSURES PUBLIC CONFIDENCE IN THE
BUSINESS ACTIVITY OF THE BENEFICIARY (E.G., CERTIFICATES OF NECESSITY
AND CONVENIENCE FOR AIRLINE ROUTES, OR SAFETY INSPECTIONS OF CRAFT);
OR 

"(C) IS PERFORMED AT THE REQUEST OF THE RECIPIENT AND IS ABOVE AND
BEYOND THE SERVICES REGULARLY RECEIVED BY OTHER MEMBERS OF THE SAME
INDUSTRY OR GROUP, OR OF THE GENERAL PUBLIC (E.G., RECEIVING A
PASSPORT, VISA, AIRMAN'S CERTIFICATE, OR AN INSPECTION AFTER REGULAR
DUTY HOURS)." 

/4/  SINCE ORAL ARGUMENT WE HAVE BEEN ADVISED BY THE SOLICITOR
GENERAL THAT OF ALL FEDERAL AGENCIES "HAVING INDUSTRY-WIDE REGULATORY
AUTHORITY" THERE ARE TWO, OTHER THAN THE FEDERAL POWER COMMISSION AND
THE FEDERAL COMMUNICATIONS COMMISSION, WHICH IMPOSE "ANNUAL INDUSTRY
WIDE FEES ANALOGOUS" TO THOSE IN THE INSTANT CASE.  THE SOLICITOR
GENERAL SUMMARIZES THE ACTIONS OF THE OTHER TWO FEDERAL AGENCIES AS
FOLLOWS: 

"THE FEE SCHEDULE OF THE ATOMIC ENERGY COMMISSION IS SET FORTH AT 10
C.F.R. 170.21 AND 170.31 AND WAS LAST REVISED ON OCTOBER 29, 1973 (38
FED. REG. 30254 - 30255).  UNDER THAT SCHEDULE, OPERATORS OF NUCLEAR
POWER REACTORS ARE SUBJECT TO A MINIMUM ANNUAL FEE OF $20,000 AND
OPERATORS OF OTHER NUCLEAR FACILITIES ARE SUBJECT TO ANNUAL FEES
RANGING FROM $8,500 TO $215,000.  HOLDERS OF MATERIALS LICENSES ARE
ASSESSED ANNUAL FEES OF UP TO $27,000.  THE COMMISSION ESTIMATES THAT
APPROXIMATELY $7 MILLION WILL BE RECOVERED FROM THESE ANNUAL FEES IN
FISCAL YEAR 1974.  THE COMMISSION'S FEE SCHEDULE, INCLUDING ANNUAL
FEES, WAS FIRST ADOPTED IN 1968. 

"THE SECURITIES AND EXCHANGE COMMISSION IMPOSES AN ANNUAL FEE OF
$100 ON EACH OF THE APPROXIMATELY 1100 INVESTMENT ADVISERS REGISTERED
WITH IT UNDER THE INVESTMENT ADVISORS ACT OF 1940, 15 U.S.C. 80B-1 ET
SEQ. SEE 17 C.F.R. 275.203 - 3(B).  THIS FEE WAS FIRST ADOPTED IN
1972." 

THIS STATEMENT COVERS ONLY FEES IMPOSED UNDER TIT. V, NOT THOSE
AUTHORIZED "UNDER MORE SPECIFIC GRANTS OF STATUTORY AUTHORITY." 

MR. JUSTICE BLACKMUN AND MR. JUSTICE POWELL TOOK NO PART IN THE
DECISION OF THIS CASE. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING IN THE RESULT IN NO. 72 - 1162 AND DISSENTING IN NO. 72 -
948, ANTE, P. 336. 

THESE CASES PRESENT TWO DISTINCT ISSUES INVOLVING INTERPRETATION OF
THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1952: FIRST, WHETHER
SUFFICIENT "WORK, SERVICE,. . ., BENEFIT,. . . OR SIMILAR THING OF
VALUE OR UTILITY" WAS CONFERRED ON THE CATV OPERATORS OR UTILITY
COMPANIES TO WARRANT IMPOSITION OF A FEE UNDER THE STATUTE; AND,
SECOND, WHETHER, IF A FEE WAS JUSTIFIABLY IMPOSED, THE AMOUNT OF THE
FEE WAS DETERMINED IN ACCORDANCE WITH A PROPER INTERPRETATION OF THE
STATUTORY STANDARD THAT IT BE "FAIR AND EQUITABLE TAKING INTO
CONSIDERATION DIRECT AND INDIRECT COST TO THE GOVERNMENT, VALUE TO THE
RECIPIENT, PUBLIC POLICY OR INTEREST SERVED, AND OTHER PERTINENT
FACTS."  31 U.S.C. 483A. 

THE COURT, HOWEVER, FAILS TO RECOGNIZE THAT THESE ISSUES REQUIRE
INDEPENDENT ANALYSIS.  INSTEAD, PERMEATING THE COURT'S OPINIONS ON BOTH
ISSUES IS AN ATTEMPT TO DRAW METAPHYSICAL DISTINCTIONS BETWEEN A "FEE"
AND A "TAX."  I DO NOT FIND THIS APPROACH EITHER HELPFUL OR
APPROPRIATE; WHATEVER THE LABEL, THE QUESTIONS PRESENTED IN THESE CASES
INVOLVE SIMPLY WHETHER THE CHARGE ASSESSED BY THE COMMISSIONS WERE
AUTHORIZED BY CONGRESS.  THE COURT'S APPROACH MERELY BECLOUDS ITS
ANALYSIS, PRODUCING RESULTS WHICH SEEM TO ME INCONSISTENT AND AFFORDING
GUIDANCE TO THE AGENCIES IN SETTING THEIR FEE POLICIES WHICH MIGHT BE
CHARITABLY DESCRIBED AS UNCERTAIN. 

THIS APPROACH IS ALLEGEDLY BASED ON THE NEED TO CONSTRUE THE STATUTE
NARROWLY TO AVOID CONSTITUTIONAL DIFFICULTIES.  I DO NOT BELIEVE THAT
ANY SERIOUS QUESTION OF THE CONSTITUTIONALITY OF THE ACT WOULD BE
PRESENTED IF CONGRESS HAD IN FACT AUTHORIZED THESE CHARGES.  THE NOTION
THAT THE CONSTITUTION NARROWLY CONFINES THE POWER OF CONGRESS TO
DELEGATE AUTHORITY TO ADMINISTRATIVE AGENCIES, WHICH WAS BRIEFLY IN
VOGUE IN THE 1930'S, HAS BEEN VIRTUALLY ABANDONED BY THE COURT FOR ALL
PRACTICAL PURPOSES, /1/  AT LEAST IN THE ABSENCE OF A DELEGATION
CREATING "THE DANGER OF OVERBROAD, UNAUTHORIZED, AND ARBITRARY
APPLICATION OF CRIMINAL SANCTIONS IN AN AREA OF (CONSTITUTIONALLY)
PROTECTED FREEDOMS," UNITED STATES V. ROBEL, 389 U.S. 258, 272 (1967)
(BRENNAN, J., CONCURRING).  THIS DOCTRINE IS SURELY AS MORIBUND AS THE
SUBSTANTIVE DUE PROCESS APPROACH OF THE SAME ERA--FOR WHICH THE COURT
IS FOND OF WRITING AN OBITUARY, E.G., FERGUSON V. SKRUPA, 372 U.S. 726
(1963); NORTH DAKOTA PHARMACY BOARD V. SNYDER'S STORES, 414 U.S. 156
(1973) -- IF NOT MORE SO.  IT IS HARDLY SURPRISING THAT, UNTIL TODAY'S
DECISION, THE COURT HAD NOT RELIED UPON SCHECHTER POULTRY CORP. V.
UNITED STATES, 295 U.S. 495 (1935), ALMOST SINCE THE DAY IT WAS
DECIDED.  /2/     I HAVE NO DOUBT--AND I SUSPECT THAT A MAJORITY OF THE
COURT WOULD AGREE--THAT CONGRESS COULD CONSTITUTIONALLY AUTHORIZE THE
COMMISSIONS TO IMPOSE ANNUAL CHARGES OF THE SORT INVOLVED HERE.  SURELY
THE CONGRESSIONALLY PRESCRIBED STANDARDS, PERMITTING IMPOSITION OF FEES
FOR WORK DONE OR SERVICE OR BENEFIT PROVIDED IF THEY ARE "FAIR AND
EQUITABLE" TAKING INTO ACCOUNT "COST TO THE GOVERNMENT, VALUE TO THE
RECIPIENT, (AND) PUBLIC POLICY," ARE SUFFICIENTLY DEFINITE TO WITHSTAND
ANY CONCEIVABLE DELEGATION OBJECTION.  SEE, E. G., YAKUS V. UNITED
STATES, 321 U.S. 414, 423 - 427 (1944); LICHTER V. UNITED STATES, 334
U.S. 742, 783 - 786 (1948).  I THEREFORE SEE NO REASON TO CONSTRUE THE
STATUTE IN AN ARTIFICIALLY NARROW WAY TO AVOID NONEXISTENT
CONSTITUTIONAL DIFFICULTIES. 

EVEN ON A NEUTRAL READING OF THE STATUTE AND ITS LEGISLATIVE
HISTORY, HOWEVER, I AM CONVINCED THAT CONGRESS DID NOT INTEND TO
AUTHORIZE INDUSTRYWIDE ANNUAL ASSESSMENTS LIKE THOSE AT ISSUE HERE. 
THE MOVEMENT IN CONGRESS TO ENCOURAGE GOVERNMENT AGENCIES TO ESTABLISH
FEES TO RECOVER SOME OF THE COSTS OF PROVIDING SERVICES TO SPECIAL
BENEFICIARIES BEGAN IN 1950 WITH A STUDY OF THE SENATE COMMITTEE ON
EXPENDITURES IN THE EXECUTIVE BRANCH WHICH CULMINATED IN A REPORT TO
CONGRESS ON " FEES FOR SPECIAL SERVICES."  S. REP. NO. 2120, 81ST
CONG., 2D SESS. (1950).  THIS REPORT CONCLUDED THAT FEES SHOULD BE
CHARGED FOR AGENCY SERVICES THE BENEFITS OF WHICH ACCRUED WHOLLY OR
PRIMARILY TO SPECIAL INTERESTS.  ID., AT 3 - 4.  IN PARTICULAR, THE
REPORT POINTED OUT THAT THE FCC "RENDERS A TREMENDOUS VARIETY OF
SERVICES, A SUBSTANTIAL NUMBER OF WHICH WOULD LEND THEMSELVES TO
EQUITABLE FEES."  ID., AT 4.  THE REPORT LISTED THE TYPE OF SERVICES
FOR WHICH ASSESSMENT OF FEES WOULD BE APPROPRIATE:  RADIO STATION
CONSTRUCTION PERMITS, RADIO STATION OPERATING LICENSES AND RENEWALS,
AUTHORIZATION OF ASSIGNMENT OR TRANSFER OF LICENSES, RADIO OPERATOR
LICENSES, AND CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY.  ID.,
AT 11.  /3/ 

ON THE OTHER HAND, THE REPORT WAS CAREFUL TO POINT OUT THE LIMITED
NATURE OF ITS RECOMMENDATIONS.  IT EMPHASIZED THAT IT WAS NOT PROPOSING
THAT GOVERNMENT REGULATION IN GENERAL BE MADE SELF-SUSTAINING BY
SHIFTING THE COSTS TO THOSE REGULATED: 

"THERE HAS BEEN NO QUARREL WITH THE PHILOSOPHY GOVERNING THE STUDY
THAT THOSE WHO RECEIVE THE BENEFIT OF SERVICES RENDERED BY THE
GOVERNMENT ESPECIALLY FOR THEM SHOULD PAY THE COSTS THEREOF.  IN THE
SEVERAL STAFF REPORTS AND PRESS RELEASES WHICH HAVE BEEN ISSUED,
OCCASION HAS BEEN TAKEN TO REITERATE THAT PHILOSOPHY AND TO GIVE
REASSURANCE THAT THERE IS NO THOUGHT HERE TO ESTABLISH A SYSTEM OF FEES
FOR FUNDAMENTAL GOVERNMENT SERVICES, BUT ONLY TO EXPLORE THE
FEASIBILITY AND FAIRNESS OF SHIFTING TO SPECIAL BENEFICIARIES THE
EXPENSE NOW BEING BORNE FOR THEM BY THE TAXPAYERS AT LARGE."  ID., AT
3. 

THESE THEMES WERE REITERATED DURING THE 1951 HEARINGS WHICH LED
DIRECTLY TO ENACTMENT OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF
1952.  HEARINGS ON INDEPENDENT OFFICES APPROPRIATIONS FOR 1952 BEFORE
THE SUBCOMMITTEE ON INDEPENDENT OFFICES OF THE HOUSE COMMITTEE ON
APPROPRIATIONS, 82D CONG., 1ST SESS. (1951).  THE QUESTIONS OF THE
COMMITTEE MEMBERS REFLECTED THEIR CONCERN THAT THE REGULATORY AGENCIES
WERE NOT RECOUPING ANY PART OF THE COST OF SERVICES WHICH BENEFITED
PARTICULAR SPECIAL INTERESTS.  BUT IT IS APPARENT THQAT THE COMMITTEE
HAD IN MIND IMPOSITION OF FEES FOR ISSUANCE OF LICENSES, ID., AT 281,
681, CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY, ID., AT 281,
524, AND THE LIKE.  AND IT WAS RECOGNIZED THAT IN THE ABSENCE OF THIS
SORT OF SPECIAL BENEFIT, IMPOSITION OF THE COST OF REGULATION OF THOSE
REGULATED REPRESENTED A DIFFERENT PHILOSOPHICAL APPROACH, AS TO WHICH
THERE HAD BEEN IN THE PAST SUBSTANTIAL RESISTANCE.  ID., AT 730. 

THE ACTUAL LANGUAGE OF THE APPROPRIATION ACT IS QUITE GENERAL, AND
IS CERTAINLY CAPABLE OF VARYING INTERPRETATIONS.  BUT THE INTENDED
CONTENT OF THE STATUTE'S AUTHORIZATION OF FEES TO BE CHARGED FOR "ANY
WORK, SERVICE PUBLICATION, REPORT, DOCUMENT, BENEFIT, PRIVILEGE,
AUTHORITY, USE, FRANCHISE, LICENSE, PERMIT, CERTIFICATE, REGISTRATION
OR SIMILAR THING OF VALUE OR UTILITY" CAN BE GLEANED FROM THIS
LEGISLATIVE HISTORY.  WHEN THE COMMITTEE REPORT EXPRESSED ITS CONCERN
THAT "THE GOVERNMENT IS NOT RECEIVING FULL RETURN FROM MANY OF THE
SERVICES WHICH IT RENDERS TO SPECIAL BENEFICIARIES," H.R.REP.  NO. 384,
82D CONG., 1ST SESS., 2 (1951), AND SUGGESTED THAT "FEES COULD BE
CHARGED FOR OTHER SERVICES" "OF THE TYPE HERE UNDER CONSIDERATION,"
ID., AT 3, I THINK THAT IT CONTEMPLATED IMPOSITION OF APPLICATION FEES,
REGISTRATION FEES, AND FEES FOR GRANTS OF LICENSES, PERMITS, OR OTHER
SIMILAR AUTHORIZATIONS.  THIS INTERPRETATION IS CONSISTENT WITH THE
STATUTORY LANGUAGE, WITH ITS LONG ENUMERATION OF SPECIFIC, READILY
IDENTIFIABLE, AND DISCRETE COMMISSION ACTIONS FOR WHICH FEES CAN BE
CHARGED.  THIS INTERPRETATION IS CONSISTENT, ALSO, WITH THE EXPLANATION
OF THE STATUTE ON THE FLOOR OF THE HOUSE OFFERED BY REPRESENTATIVE
YATES, IN WHICH HE CITED THE AWARD OF FRANCHISES, LICENSES,
CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY, AND CONSTRUCTION
PERMITS AS EXAMPLES OF BENEFITS FOR WHICH FEES COULD APPROPRIATELY BE
CHARGED BY THE FCC.  97 CONG. REC. 4809 (1951). 

I SEE NOTHING IN THE LEGISLATIVE HISTORY WHICH SUGGESTS ANY BROADER
INTERPRETATION OF THE CONCEPT OF "BENEFIT"  UNDER THE ACT.  ON THE
CONTRARY, SINCE THE BROADER VIEW THAT THE FULL COST OF REGULATION
SHOULD BE ASSESSED THOSE SUBJECT TO THE AGENCY'S JURISDICTION IN THE
ABSENCE OF A "SPECIAL BENEFIT" WOULD HAVE REPRESENTED A CONTROVERSIAL
POLICY CHOICE, I THINK THAT THE VERY LACK OF DEBATE OVER THIS PROVISION
OF THE ACT AND THE EASE WITH WHICH IT PASSED COMPEL THE MORE LIMITED
INTERPRETATION.  THE COMMITTEE REPORT ITSELF NOTED THAT MORE "BASIC"
CHANGES IN AGENCY FEE PRACTICE WOULD HAVE TO AWAIT FURTHER STUDY BY
CONGRESSIONAL COMMITTEES AND ADDITIONAL LEGISLATION.  H.R. REP. NO.
384, 82D CONG., 1ST SESS., 2 - 3 (1951). 

I THEREFORE DO NOT BELIEVE THAT THE CREATION OF AN "ECONOMIC
CLIMATE" WHICH FOSTERS THE GROWTH OF A REGULATED INDUSTRY IS A
SUFFICIENTLY SPECIFIC, DISCRETE BENEFIT WITHIN THE MEANING OF THE
APPROPRIATION ACT TO JUSTIFY IMPOSITION OF A FEE.  NOR DO I THINK THAT
THIS BENEFIT IS CONFERRED UPON A SUFFICIENTLY IDENTIFIABLE RECIPIENT TO
BE THE BASIS FOR ASSESSMENT OF A FEE.  ACCORDINGLY, I AGREE WITH THE
COURT'S CONSTRUCTION OF THE ACT, ANTE, AT 349 - 350, AND CONCUR IN THE
RESULT IN THIS CASE. 

I CANNOT AGREE, HOWEVER, WITH THE RESULT IN NO. 72 - 948, NATIONAL
CABLE TELEVISION ASSN. V. UNITED STATES, ANTE, P. 336.  IN VIEW OF THE
COURT'S CONCLUSION IN THIS CASE, I AM MYSTIFIED AS TO HOW THE COURT CAN
REACH ITS APPARENT, THOUGH COMPLETELY UNEXPLAINED, HOLDING IN NO. 72 -
948 THAT OPERATORS OF CATV SYSTEMS MAY RECEIVE "SPECIAL BENEFITS"
SUFFICIENT TO SUSTAIN IMPOSITION OF AN ANNUAL FEE UNDER THE
APPROPRIATION ACT.  ANTE, AT 343.  IN 1970, WHEN THE FEES AT ISSUE HERE
WERE ESTABLISHED, FCC REGULATION OF CATV WAS QUITE LIMITED.  CATV
OPERATORS DID NOT RECEIVE LICENSES OR ANY SIMILAR AUTHORIZATION FROM
THE COMMISSION.  RATHER, THEIR FRANCHISES WERE GENERALLY AWARDED BY
STATE AUTHORITIES, TO WHOM THE CATV OPERATORS PAY FRANCHISE FEES. 
ALTHOUGH FCC REGULATIONS PROHIBITED CARRIAGE OF DISTANT SIGNALS INTO
LARGER TELEVISION MARKETS UNLESS COMMISSION AUTHORIZATION WAS OBTAINED,
47 CFR 74.1107 (1968), /4/  CARRIAGE OF LOCAL SIGNALS AS WELL AS
DISTANT SIGNALS INTO SMALLER MARKETS WAS PERMITTED, UNLESS OBJECTIONS
WERE RAISED, WITHOUT THE NEED FOR APPROVAL BY THE COMMISSION.  47 CFR
74.1105 (A), (C) (1968).  MANY OF THE CATV OPERATORS AGAINST WHOM THESE
ANNUAL CHARGES WERE ASSESSED HAD NO CONTACT AT ALL WITH THE COMMISSION
DURING 1970, AND SOME HAD NEVER HAD ANY DEALINGS WITH THE COMMISSION. 
THE ONLY OTHER FCC REGULATIONS OF CATV IN 1970 POINTED TO BY THE
SOLICITOR GENERAL ARE REGULATIONS WHICH PROHIBIT TELEPHONE COMPANIES
AND TELEVISION BROADCASTERS FROM ENTERING THE CATV FIELD.  /5/ 

IN MY VIEW, THE MERE EXISTENCE OF SUCH REGULATION CANNOT JUSTIFY THE
ANNUAL FEES IMPOSED IN THIS CASE.  WHILE THESE REGULATIONS MAY HAVE
BEEN OF SOME BENEFIT TO THE CATV INDUSTRY IN A VERY BROAD SENSE, I
REGARD THE FCC'S ARGUMENT ON THIS POINT AS IDENTICAL TO THE FPC'S
"ECONOMIC CLIMATE" ARGUMENT REJECTED BY THE COURT IN THIS CASE.  I CAN
SEE NO SPECIFIC BENEFIT PROVIDED OR SERVICE RENDERED BY THE COMMISSION
ON THE ORDER OF THE GRANT OF A LICENSE OR CERTIFICATE, PROCESSING OF AN
APPLICATION, OR EVEN PROVISION OF A NEW AND USEFUL ACCOUNTING SYSTEM. 
NOR DO I BELIEVE THAT THE BENEFITS OF FCC REGULATION HAVE BEEN
CONFERRED ON ANY IDENTIFIABLE RECIPIENT; I WOULD THINK THIS A CLASSIC
CASE WHERE "THE IDENTIFICATION OF THE ULTIMATE BENEFICIARY IS OBSCURE
AND THE SERVICES CAN BE PRIMARILY CONSIDERED AS BENEFITTING BROADLY THE
GENERAL PUBLIC."  ANTE, AT 350. 

I WOULD THEREFORE HOLD THAT THE ANNUAL FEES IMPOSED IN BOTH THESE
CASES WERE NOT AUTHORIZED BY THE STATUTE.  BUT SINCE THE COURT
APPARENTLY HOLDS OTHERWISE, AND GOES ON TO DISCUSS THE STANDARDS TO BE
APPLIED BY THE FCC IN SETTING FEES UNDER THE STATUTE, I THINK IT
APPROPRIATE TO EXPRESS MY VIEWS ON THIS ISSUE.  I CANNOT AGREE WITH THE
COURT THAT THE ONLY FACTOR WHICH THE COMMISSION MAY CONSIDER IN
DETERMINING THE AMOUNT OF THE FEES IS THE "VALUE TO THE RECIPIENT." 
THE STATUTE PROVIDES THAT THE FEE MUST BE "FAIR AND EQUITABLE TAKING
INTO CONSIDERATION DIRECT AND INDIRECT COST TO THE GOVERNMENT, VALUE TO
THE RECIPIENT, PUBLIC POLICY OR INTEREST SERVED, AND OTHER PERTINENT
FACTS."  THIS IS A PERFECTLY CLEAR AND INTELLIGIBLE STANDARD, AND I SEE
NO REASON WHY, ASSUMING A PROPER OCCASION FOR IMPOSITION OF A FEE, THE
COMMISSION IS NOT ENTITLED TO WEIGH EACH OF THE STATUTORY
CONSIDERATIONS.  IT MAY WELL BE TRUE THAT THE COMMISSION HERE GAVE
UNDUE EMPHASIS TO ONE OF THE STATUTORY FACTORS, "COST TO THE
GOVERNMENT."  BUT THE COURT'S RESPONSE, TO REQUIRE THAT UNDUE,
SEEMINGLY EXCLUSIVE RELIANCE BE PLACED ONE THE STANDARD OF "VALUE TO
THE RECIPIENT" IS, IN MY OPINION, EQUALLY ERRONEOUS.  IT IS ALSO QUITE
UNREALISTIC AND UNWORKABLE:  HOW IS THE COMMISSION TO DETERMINE WHETHER
TO SET THE FEE AT 1%, 5%, OR 50% OF THE "VALUE TO THE RECIPIENT" UNLESS
IT IS ALSO FREE TO CONSIDER SUCH OTHER FACTORS AS "COST TO THE
GOVERNMENT" AND "PUBLIC POLICY"? 

I WOULD LEAVE THE COMMISSION FREE TO CONSIDER ALL THE STATUTORY
STANDARDS IN SETTING ITS FEES.  CERTAINLY THE COMMISSION SHOULD BE FREE
TO CONSIDER "COST TO THE GOVERNMENT, /6/  AS WELL AS THE STATUTORY
MANDATE THAT THE COMMISSION "BE SELF-SUSTAINING TO THE FULL EXTENT
POSSIBLE."  IT COULD NOT BE CLEARER, FROM THE LANGUAGE OF THE STATUTE
AND FROM ITS GENESIS, THAT CONGRESS INTENDED THESE FACTORS TO BE
CONSIDERED BY THE COMMISSIONS IN SETTING THEIR FEE SCHEDULES.  IF THE
COURT SERIOUSLY BELIEVES DTHAT THIS SOMEHOW PRESENTS A SUBSTANTIAL
CONSTITUTIONAL PROBLEM, THEN THE CONSTITUTIONAL ISSUE SHOULD BE
SQUARELY FACED AND RESOLVED; IT SHOULD NOT BE PERMITTED TO JUSTIFY THE
COURT'S REWRITING OF THE STATUTE CONTRARY TO CONGRESSIONAL INTENT. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS IN NO. 72 - 1162
AND REVERSE THE JUDGMENT IN NO. 72 - 948. 

/1/  " LAWYERS WHO TRY TO WIN CASES BY ARGUING THAT CONGRESSIONAL
DELEGATIONS ARE UNCONSTITUTIONAL ALMOST INVARIABLY DO MORE HARM THAN
GOOD TO THEIR CLIENTS' INTERESTS.  UNREALISTIC VERBIAGE IN SOME OF THE
OLDER JUDICIAL OPINIONS SHOULD NOT NOW BE TAKEN SERIOUSLY.  THE
EFFECTIVE LAW IS IN ACCORD WITH A 1940 STATEMENT OF THE SUPREME COURT:
' DELEGATION BY CONGRESS HAS LONG BEEN RECOGNIZED AS NECESSARY IN ORDER
THAT THE EXERTION OF LEGISLATIVE POWER DOES NOT BECOME A FUTILITY.' 
(SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 398 (1940).) 
MUCH OF THE JUDICIAL TALK ABOUT REQUIREMENT OF STANDARDS IS CONTRARY TO
THE ACTION THE SUPREME COURT TAKES WHEN DELEGATIONS ARE MADE WITHOUT
STANDARDS.  THE VAGUEST OF STANDARDS ARE HELD ADEQUATE, AND VARIOUS
DELEGATIONS WITHOUT STANDARDS HAVE BEEN UPHELD.... 

" IN ONLY TWO CASES IN ALL AMERICAN HISTORY HAVE CONGRESSIONAL
DELEGATIONS TO PUBLIC AUTHORITIES BEEN HELD INVALID.  NEITHER
DELEGATION WAS TO A REGULARLY CONSTITUTED ADMINISTRATIVE AGENCY WHICH
FOLLOWED AN ESTABLISHED PROCEDURE DESIGNED TO AFFORD THE CUSTOMARY
SAFEGUARDS TO AFFECTED PARTIES.  THE PANAMA CASE (PANAMA REFINING CO.
V. RYAN, 293 U.S. 388 (1935)) WAS INFLUENCED BY EXCEPTIONAL EXECUTIVE
DISORGANIZATION AND IN ABSENCE OF SUCH A SPECIAL FACTOR WOULD NOT BE
FOLLOWED TODAY.  THE SCHECHTER CASE INVOLVED EXCESSIVE DELEGATION OF
THE KIND THAT CONGRESS IS NOT LIKELY AGAIN TO MAKE.... 

" IN ABSENCE OF PALPABLE ABUSE OR TRUE CONGRESSIONAL ABDICATION, THE
NON-DELEGATION DOCTRINE TO WHICH THE SUPREME COURT HAD IN THE PAST
OFTEN PAID LIP SERVICE IS WITHOUT PRACTICAL FORCE."  1 K. DAVIS,
ADMINISTRATIVE LAW TREATISE 2.01 (1958) (FOOTNOTES OMITTED). 

/2/  THE LAST TIME THAT THE COURT RELIED UPON SCHECHTER POULTRY WAS
IN CARTER V. CARTER COAL CO., 298 U.S. 238 (1936). 

/3/  SIMILARLY, AS TO THE FEDERAL POWER COMMISSION, THE REPORT
SUGGESTED THAT FEES COULD BE CHARGED FOR ISSUANCE OF LICENSE AND
CERTIFICATES OF PUBLIC CONVENIENCE.  ID., AT 12. 

/4/  IT WOULD SEEM CLEAR THAT FEES COULD APPROPRIATELY BE IMPOSED
UNDER THE APPROPRIATION ACT IN CONNECTION WITH APPLICATION FOR OR
ISSUANCE OF SUCH COMMISSION AUTHORIZATION.  HOWEVER, NO SUCH FEES ARE
AT ISSUE IN THIS CASE. 

/5/  EXTENSIVE NEW REGULATIONS OF CATV WERE PROMULGATED IN 1972.  37
FED. REG. 3280 (FEB. 12, 1972).  THESE REGULATIONS PRESCRIBE IN
CONSIDERABLE DETAIL THE PROVISIONS OF FRANCHISES GRANTED BY LOCAL
AUTHORITIES TO CATV OPERATORS, AND ALSO LIMIT THE FRANCHISE FEES WHICH
MAY BE CHARGED BY THE LOCALITIES IN WHICH CATV STATIONS OPERATE.  MOST
IMPORTANT FOR PRESENT PURPOSES, THE NEW REGULATIONS ALSO PROVIDE THAT A
CATV OPERATOR MUST OBTAIN AN FCC CERTIFICATE OF COMPLIANCE BEFORE
COMMENCING OPERATIONS; EXISTING CABLE SYSTEMS MUST OBTAIN A CERTIFICATE
OF COMPLIANCE BY MARCH 31, 1977.  47 CFR 76.11 (B) (1973).  WHILE THESE
NEW REGULATIONS WILL UNDOUBTEDLY AFFECT THE QUESTION OF THE
PERMISSIBILITY OF FEES IMPOSED FOR FUTURE YEARS, THEY CANNOT
RETROACTIVELY VALIDATE FEES IMPOSED FOR 1970.     /6/  IN MY VIEW,
"COST TO THE GOVERNMENT" COMPREHENDS THE COST OF FCC REGULATION OF THE
INDUSTRY AS WELL AS THE COST OF PROCESSING A SPECIFIC APPLICATION. 
WHILE THE EXISTENCE OF SUCH REGULATION IS NOT ITSELF SUFFICIENT UNDER
THE PRESENT STATUTE TO SUSTAIN IMPOSITION OF A FEE, IT WILL OFTEN BE
BENEFICIAL TO THE INDUSTRY--AS THE GOVERNMENT'S "ECONOMIC CLIMATE"
ARGUMENT SUGGESTS--AND WILL PLAY A ROLE IN ENHANCING THE "VALUE TO THE
RECIPIENT" OF THE LICENSE OR OTHER AUTHORIZATION.  IT IS THEREFORE
NEITHER UNREASONABLE NOR INCONSISTENT WITH THE STATUTORY INTENT THAT
THE CONTRIBUTION OF THIS REGULATION BE CONSIDERED. 

KEITH A. JONES ARGUED THE CAUSE FOR PETITIONER.  ON THE BRIEF WERE
SOLICITOR GENERAL BORK, LEO A. FORQUER, AND GEORGE W. MC HENRY, JR. 

THOMAS M. DEBEVOISE AND STANLEY M. MORLEY ARGUED THE CAUSE FOR
RESPONDENTS.  WITH MR. DEBEVOISE ON THE BRIEF FOR RESPONDENT NEW
ENGLAND POWER CO. WERE WILLIAM J. MADDEN, JR., AND JEROME C. MUYS. 
WITH MR. MORLEY ON THE BRIEF FOR RESPONDENT INDEPENDENT NATURAL GAS
ASSOCIATION OF AMERICA WERE JEROME J. MC GRATH AND FRANCIS H. CASKIN. 
L. F. CADENHEAD AND MELVIN RICHTER WERE ON THE BRIEF FOR RESPONDENT
TENNESSEE GAS PIPELINE CO., A DIVISION OF TENNECO, INC.
..END :




















JOHNSON V. ROBISON, 415 U.S. 361 


       JOHNSON, ADMINISTRATOR OF VETERANS' AFFAIRS, ET AL. V.

           ROBISON

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS

        NO. 72 - 1297.  ARGUED DECEMBER 11, 1973 -- DECIDED MARCH
4,

           1974; 352 F. SUPP. 848, REVERSED 


    APPELLEE, WHO HAD BEEN EXEMPTED FROM MILITARY SERVICE AS A

  CLASS I-O CONSCIENTIOUS OBJECTOR BUT WHO PERFORMED REQUIRED

  ALTERNATIVE CIVILIAN SERVICE, AFTER BEING DENIED EDUCATIONAL

  BENEFITS UNDER THE VETERANS' READJUSTMENT BENEFITS ACT OF 1966,

  BROUGHT THIS CLASS ACTION FOR A DECLARATORY JUDGEMENT THAT THE

  PROVISIONS OF THE ACT MAKING HIM AND HIS CLASS INELIGIBLE FOR

  SUCH BENEFITS VIOLATED THE FIRST AMENDMENT'S GUARANTEE OF

  RELIGIOUS FREEDOM AND THE FIFTH AMENDMENT'S GUARANTEE OF EQUAL

  PROTECTION OF THE LAWS.  AFTER DENYING APPELLANTS' MOTION TO

  DISMISS FOR LACK OF JURISDICTION BECAUSE OF 38 U.S.C. 211 (A),

WHICH PROHIBITS JUDICIAL REVIEW OF DECISIONS OF THE ADMINISTRATOR

  OF VETERANS' AFFAIRS ON ANY QUESTION OF LAW OR FACT UNDER LAWS

  ADMINISTERED BY THE VETERANS'  ADMINISTRATION PROVIDING FOR

  VETERANS' BENEFITS, THE DISTRICT COURT REJECTED APPELLEE'S FIRST

  AMENDMENT CLAIM BUT SUSTAINED THE FIFTH AMENDMENT CLAIM.  HELD: 

     1.  SECTION 211 (A) DOES NOT EXTEND TO ACTIONS CHALLENGING THE

  CONSTITUTIONALITY OF VETERANS' BENEFITS LEGISLATION BUT IS AIMED

  AT PROHIBITING REVIEW ONLY OF THOSE DECISIONS OF LAW OR FACT

ARISING IN THE ADMINISTRATION OF A STATUTE PROVIDING FOR

VETERANS'  BENEFITS, AND HENCE IS INAPPLICABLE TO THIS ACTION,

  NEITHER THE TEXT OF THE STATUTE NOR ITS LEGISLATIVE HISTORY

  SHOWING A CONTRARY INTENT.  PP. 366 - 374. 

2.  THE CHALLENGED SECTIONS OF THE ACT DO NOT CREATE AN

ARBITRARY CLASSIFICATION IN VIOLATION OF APPELLEE'S RIGHT TO

  EQUAL PROTECTION OF THE LAWS.  PP. 374 - 383. 

(A) THE QUANTITATIVE AND QUALITATIVE DISTINCTIONS BETWEEN THE

  DISRUPTION CAUSED BY MILITARY SERVICE AND THAT CAUSED BY

  ALTERNATIVE CIVILIAN SERVICE--MILITARY SERVICE INVOLVING A

  SIX-YEAR COMMITMENT AND FAR GREATER LOSS OF PERSONAL FREEDOM, AND

  ALTERNATIVE CIVILIAN SERVICE INVOLVING ONLY A TWO-YEAR OBLIGATION

  AND NO REQUIREMENT TO LEAVE CIVILIAN LIFE--FORM A RATIONAL BASIS

  FOR CONGRESS'  CLASSIFICAION LIMITING EDUCATIONAL BENEFITS TO

  MILITARY SERVICE VETERANS AS A MEANS OF HELPING THEM TO READJUST

  TO CIVILIAN LIFE.  PP. 378 - 382. 

     (B) THE STATUTORY CLASSIFICATION ALSO BEARS A RATIONAL

  RELATIONSHIP TO THE ACT'S OBJECTIVE OF MAKING MILITARY SERVICE

  MORE ATTRACTIVE.  P. 382. 

     3.  THE ACT DOES NOT VIOLATE APPELLEE'S RIGHT OF FREE EXERCISE

  OF RELIGION.  GILLETTEE V. UNITED STATES, 401 U.S. 437.  PP. 383

  - 386. 

     (A) THE WITHHOLDING OF EDUCATIONAL BENEFITS TO APPELLEE AND
HIS

  CLASS INVOLVES ONLY AN INCIDENTAL BURDEN, IF ANY BURDEN AT ALL,

  UPON THEIR FREE EXERCISE OF RELIGION.  P. 385. 

(B) APPELLEE AND HIS CLASS WERE NOT INCLUDED AS BENEFICIARIES,

  NOT BECAUSE OF ANY LEGISLATIVE DESIGN TO INTERFERE WITH THEIR

  FREE EXERCISE OF RELIGION, BUT BECAUSE TO INCLUDE THEM WOULD NOT

  RATIONALLY PROMOTE THE ACT'S PURPOSES.  P. 385. 

     (C) THE GOVERNMENT'S SUBSTANTIAL INTEREST IN RAISING AND

  SUPPORTING ARMIES, ART. I, 8, IS OF "A KIND AND WEIGHT" CLEARLY

  SUFFICIENT TO SUSTAIN THE CHALLENGED LEGISLATION.  PP. 385 -

  386. 

     BRENNAN, J., DELIVEREDTHE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION,

  POST, P. 386. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

A DRAFTEE ACCORDED CLASS I-O CONSCENTIOUS OBJECTOR STATUS AND
COMPLETING PERFORMANCE OF REQUIRED ALTERNATIVE CIVILIAN SERVICE /1/
DOES NOT QUALIFY UNDER 38 U.S.C. 1652 (A)(1) AS A "VETERAN WHO...SERVED
ON ACTIVE DUTY"  (DEFINED IN 38 U.S.C. 101 (21) AS "FULL-TIME DUTY IN
THE ARMED FORCES"), AND IS THEREFORE NOT AN "ELIGIBLE VETERAN" ENTITLED
UNDER 38 U.S.C. 1661 (A) TO VETERANS'  EDUCATIONAL BENEFITS PROVIDED BY
THE VETERANS' READJUSTMENT BENEFITS ACT OF 1966 /2/  APPELLANTS, THE
VETERANS'  ADMINISTRATION AND THE ADMINISTRATOR OF VETERANS'  AFFAIRS,
FOR THAT REASON, DENIED THE APPLICATION FOR EDUCATIONAL ASSISTANCE OF
APPELLEE ROBISON, A CONSCIENTIOUS OBJECTOR WHO FILED HIS APPLICATION
AFTER HE SATISFACTORILY COMPLETED TWO YEARS OF ALTERNATIVE CIVILIAN
SERVICE AT THE PETER BENT BRIGHAM HOSPITAL, BOSTON.  ROBISON THEREAFTER
COMMENCED THIS CLASS ACTION /3/  IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS, SEEKING A DECLARATORY JUDGMENT THAT
3, U.S.C. 101 (21), 1652 (A)(1), AND 1661 (A), READ TOGETHER, VIOLATED
THE FIRST AMENDMENT'S GUARANTEE OF RELIGIOUS FREEDOM AND THE FIFTH
AMENDMENT'S GUARANTEE OF EQUAL PROTECTION OF THE LAWS.  /4/  APPELLANTS
MOVED TO DISMISS THE ACTION ON THE GROUND, AMONG OTHERS, THAT THE
DISTRICT COURT LACKED JURISDICTION BECAUSE OF 38 U.S.C. 211 (A) WHICH
PROHIBITS JUDICIAL REVIEW OF DECISIONS OF THE ADMINISTRATOR /5/  THE
DISTRICT COURT DENIED THE MOTION, AND, ON THE MERITS, REJECTED
APPELLEE'S FIRST AMENDMENT CLAIM, BUT SUSTAINED THE EQUAL PROTECTION
CLAIM AND ENTERED A JUDGMENT DECLARING "THAT 38 U.S.C. 1652 (A)(1) AND
1661 (A) DEFINING 'ELIGIBLE VETERAN' AND PROVIDING FOR ENTITLEMENT TO
EDUCATIONAL ASSISTANCE ARE UNCONSTITUTIONAL AND THAT 38 U.S.C. 101 (21)
DEFINING 'ACTIVE DUTY' IS UNCONSTITUTIONAL WITH RESPECT TO CHAPTER 34
OF TITLE 38, U.S.C.  38 U.S.C. 1651 - 1697, CONFERRING VETERANS'
EDUCATIONAL ASSISTANCE, FOR THE REASON THAT SAID SECTIONS DENY
PLAINTIFF AND MEMBERS OF HIS CLASS DUE PROCESS OF LAW IN VIOLATION OF
THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES...."  352
F.SUPP.  848, 862 (1973).  /6/  WE POSTPONED CONSIDERATION OF THE
QUESTION OF JURISDICTION IN LIGHT OF 211 (A) TO THE HEARING ON THE
MERITS, AND SET THE CASE FOR ORAL ARGUMENT WITH NO. 72 - 700, HERNANDEZ
V. VETERANS' ADMINISTRATION, POST, P. 391.  411 U.S. 981 (1973).  /7/
WE HOLD, IN AGREEMENT WITH THE DISTRICT COURT, THAT 211 (A) IS
INAPPLICABLE TO THIS ACTION AND THEREFORE THAT APPELLANTS' MOTION TO
DISMISS FOR LACK OF JURISDICTION OF THE SUBJECT MATTER WAS PROPERLY
DENIED.  ON THE MERITS, WE AGREE THAT APPELLEE'S FIRST AMENDMENT CLAIM
IS WITHOUT MERIT BUT DISAGREE THAT 1652 (A)(1), 1661 (A), AND 101 (21)
VIOLATE THE FIFTH AMENDMENT AND THEREFORE REVERSE THE JUDGMENT OF THE
DISTRICT COURT. 

        I 

WE CONSIDER FIRST APPELLANTS' CONTENTION THAT 211 (A) BARS FEDERAL
COURTS FROM DECIDING THE CONSTITUTIONALITY OF VETERANS' BENEFITS
LEGISLATION.  SUCH A CONSTRUCTION WOULD, OF COURSE, RAISE SERIOUS
QUESTIONS CONCERNING THE CONSTITUTIONALITY OF 211 (A), /8/  AND IN SUCH
CASE "IT IS A CARDINAL PRINCIPLE THAT THIS COURT WILL FIRST ASCERTAIN
WHETHER A CONSTRUCTION OF THE STATUTE IS FAIRLY POSSIBLE BY WHICH THE
(CONSTITUTIONAL) QUESTIONS) MAY BE AVOIDED."  UNITED STATES V. THIRTY
SEVEN PHOTOGRAPHS, 402 U.S. 363, 369 (1971). 

PLAINLY, NO EXPLICIT PROVISION OF 211 (A) BARS JUDICIAL
CONSIDERATION OF APPELLEE'S CONSTITUTIONAL CLAIMS.  THAT SECTION
PROVIDES THAT "THE DECISIONS OF THE ADMINISTRATOR ON ANY QUESTION OF
LAW OR FACT UNDER ANY LAW ADMINISTERED BY THE VETERANS' ADMINISTRATION
PROVIDING BENEFITS FOR VETERANS...SHALL BE FINAL AND CONCLUSIVE AND
NO...COURT OF THE UNITED STATED SHALL HAVE POWER OR JURISDICTION TO
REVIEW ANY SUCH DECISION...."  (EMPHASIS ADDED.)  THE PROHIBITIONS
WOULD APPEAR TO BE AIMED AT REVIEW ONLY OF THOSE DECISIONS OF LAW OR
FACT THAT ARISE IN THE ADMINISTRATION BY THE VETERANS' ADMINISTRATION
OF A STATUTE PROVIDING BENEFITS FOR VETERANS.  A DECISION OF LAW OR
FACT "UNDER" A STATUTE IS MADE BY THE ADMINISTRATOR IN THE
INTERPRETATION OR APPLICATION OF A PARTICULAR PROVISION OF THE STATUTE
TO A PARTICULAR SET OF FACTS.  APPELLEE'S CONSTITUTIONAL CHALLENGE IS
NOT TO ANY SUCH DECISION OF THE ADMINISTRATOR, BUT RATHER TO A DECISION
OF CONGRESS TO CREATE A STATUTORY CLASS ENTITLED TO BENEFITS THAT DOES
NOT INCLUDE I-O CONSCIENTIOUS OBJECTORS WHO PERFORMED ALTERNATIVE
CIVILIAN SERVICE.  THUS, AS THE DISTRICT COURT STATED: " THE QUESTIONS
OF LAW PRESENTED IN THESE PROCEEDINGS ARISE UNDER THE CONSTITUTION, NOT
UNDER THE STATUTE WHOSE VALIDITY IS CHALLENGED."  352 F.SUPP., AT 853. 

THIS CONSTRUCTION IS ALSO SUPPORTED BY THE ADMINISTRATIVE PRACTICE
OF THE VETERANS' ADMINISTRATION.  " WHEN FACED WITH A PROBLEM OF
STATUTORY CONSTRUCTION, THIS COURT SHOWS GREAT DEFERENCE TO THE
INTERPRETATION GIVEN THE STATUTE BY THE OFFICERS OR AGENCY CHARGED WITH
ITS ADMINISTRATION."  UDALL V. TALLMAN, 380 U.S. 1, 16 (1965).  THE
BOARD OF VETERANS' APPEALS EXPRESSLY DISCLAIMED AUTHORITY TO DECIDE
CONSTITUTIONAL QUESTIONS IN APPEAL OF SLY, C-27 593 725 (MAY 10,
1972).  THERE THE BOARD, DENYING A CLAIM FOR EDUCATIONAL ASSISTANCE BY
A I-O CONSCIENTIOUS OBJECTOR, HELD THAT "(THIS DECISION DOES NOT REACH
THE ISSUE OF THE CONSTITUTIONALITY OF THE PERTINENT LAWS AS THIS MATTER
IS NOT WITHIN THE JURISDICTION OF THIS BOARD."  SLY THUS ACCEPTS AND
FOLLOWS THE PRINCIPLE THAT "(ADJUDICATION OF THE CONSTITUTIONALITY OF
CONGRESSIONAL ENACTMENTS HAS GENERALLY BEEN THOUGHT BEYOND THE
JURISDICTION OF ADMINISTRATIVE AGENCIES.  SEE PUBLIC UTILITIES COMM'N
V. UNITED STATES, 355 U.S. 534, 539 (1958); ENGINEERS PUBLIC SERVICE
CO. V. SEC, 78 U.S. APP. D.C. 199, 215 - 216, 138 F.2D 936, 952 - 953
(1943), DISMISSED AS MOOT, 332 U.S. 788."  OESTEREICH V. SELECTIVE
SERVICE BOARD, 393 U.S. 233, 242 (1968)(HARLAN, J., CONCURRING IN
RESULT); SEE JAFFE, JUDICIAL REVIEW: QUESTION OF LAW, 69 HARV. L. REV.
239, 271 - 275 (1955). 

NOR DOES THE LEGISLATIVE HISTORY ACCOMPANYING THE 1970 AMENDMENT OF
211 (A) DEMONSTRATE A CONGRESSIONAL INTENTION TO BAR JUDICIAL REVIEW
EVEN OF CONSTITUTIONAL QUESTIONS.  NO-REVIEW CLAUSES SIMILAR TO 211 (A)
HAVE BEEN A PART OF VETERANS' BENEFITS LEGISLATION SINCE 1933.  /9/
WHILE THE LEGISLATIVE HISTORY ACCOMPANYING THESE PRECURSOR NO-REVIEW
CLAUSES IS ALMOST NONEXISTENT, /10/  THE ADMINISTRATOR, IN A LETTER
WRITTEN IN 1952 IN CONNECTION WITH A REVISION OF THE CLAUSE UNDER
CONSIDERATION BY THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON VETERANS'
AFFAIRS, COMPREHENSIVELY EXPLAINED THE POLICIES NECESSITATING THE NO
REVIEW CLAUSE AND IDENTIFIED TWO PRIMARY PURPOSES:  (1) TO INSURE THAT
VETERANS' BENEFITS CLAIMS WILL NOT BURDEN THE COURTS AND THE VETERANS'
ADMINISTRATION WITH EXPENSIVE AND TIME-CONSUMING LITIGATION, /11/ AND
(2) TO INSURE THAT THE TECHNICAL AND COMPLEX DETERMINATIONS AND
APPLICATIONS OF VETERANS' ADMINISTRATION POLICY CONNECTED WITH
VETERANS' BENEFITS DECISIONS WILL BE ADEQUATELY AND UNIFORMLY MADE. 
/12/ 

THE LEGISLATIVE HISTORY OF THE 1970 AMENDMENT INDICATES NOTHING MORE
THAN A CONGRESSIONAL INTENT TO PRESERVE THESE TWO PRIMARY PURPOSES. 
BEFORE AMENDMENT, THE NO-REVIEW CLAUSE MADE FINAL "THE DECISIONS OF THE
ADMINISTRATOR ON ANY QUESTION OF LAW OR FACT CONCERNING A CLAIM FOR
BENEFITS OR PAYMENTS UNDER (CERTAIN) LAWS) ADMINISTERED BY THE
VETERANS' ADMINISTRATION,"  (EMPHASIS ADDED), 38 U.S.C. 211 (A) (1964
ED.), 71 STAT. 92.  IN A SERIES OF DECISIONS, E.G., WELLMAN V.
WHITTIER, 104 U.S. APP. D.C. 6, 259 F.2D 163 (1958); THOMPSON V.
GEASON, 115 U.S. APP. D.C. 201, 317 F.2D 901 (1962); AND TRACY V.
GLEASON, 126 U.S. APP. D.C. 415, 379 F.2D 469 (1967), THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT INTERPRETED THE TERM
"CLAIM" AS A LIMITATION UPON THE REACH OF 211 (A), AND AS A CONSEQUENCE
HELD THAT JUDICIAL REVIEW OF ACTIONS BY THE ADMINISTRATOR SUBSEQUENT TO
AN ORIGINAL GRANT OF BENEFITS WAS NOT BARRED. 

CONGRESS PERCEIVED THIS JUDICIAL INTERPRETATION AS A THREAT TO THE
DUAL PURPOSES OF THE NO-REVIEW CLAUSE.  FIRST, THE INTERPRETATION WOULD
LEAD TO AN INEVITABLE INCREASE IN LITIGATION WITH CONSEQUENT BURDENS
UPON THE COURTS AND THE VETERANS' ADMINISTRATION.  IN ITS HOUSE REPORT,
THE COMMITTEE ON VETERANS' AFFAIRS STATED THAT "(SINCE THE DECISION IN
THE TRACY CASE--AND AS THE RESULT OF THAT DECISION AND THE WELLMAN AND
THOMPSON DECISIONS--, SUITS IN CONSTANTLY INCREASING NUMBERS HAVE BEEN
FILED IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BY
PLAINTIFFS SEEKING A RESUMPTION OF TERMINATED BENEFITS."  H. R. REP.
NO. 91 - 1166, P. 10 (1970).  THIS SAME CONCERN OVER THE RISING NUMBER
OF COURT CASES WAS EXPRESSED BY THE ADMINISTRATOR IN A LETTER TO THE
COMMITTEE: 

     "THE WELLMAN, THOMPSON, AND TRACY DECISIONS HAVE NOT BEEN

  FOLLOWED IN ANY OF THE OTHER 10 FEDERAL JUDICIAL CIRCUITS

  THROUGOUT THE COUNTRY.  NEVERTHELESS, SOON AFTER THE TRACY

  DECISION, SUITS IN THE NATURE OF MANDAMUS OR FOR DECLARATORY

  JUDGMENT COMMENCED TO BE FILED IN THE U.S. DISTRICT COURT FOR THE

  DISTRICT OF COLUMBIA IN CONSTANTLY INCREASING NUMBERS BY

  PLAINTIFFS SEEKING RESUMPTION OF TERMINATED BENEFITS.  AS OF

  MARCH 8, 1970, 353 SUITS OF THIS TYPE HAD BEEN FILED IN THE

  DISTRICT OF COLUMBIA CIRCUIT.  " THE SCOPE OF THE TRACY DECISION

AND THE DECISIONS UPON WHICH IT IS BASED IS SO BROAD THAT IT

  COULD WELL AFFORD A BASIS FOR JUDICIAL REVIEW OF MILLIONS OF

  DECISIONS TERMINATIONG OR REDUCING MANY TYPES OF BENEFITS

  PROVIDED UNDER LAWS ADMINISTERED BY THE VETERANS'

  ADMINISTRATION.  SUCH REVIEW MIGHT EVEN EXTEND TO THE DECISIONS

  OF PREDECESSOR AGENCIES MADE MANY YEARS AGO."  ID., AT 2 , 24. 

SECOND, CONGRESS WAS CONCERNED THAT THE JUDICIAL INTERPRETATION OF
211 (A) WOULD INVOLVE THE COURTS IN DAY-TO-DAY DETERMINATION AND
INTERPRETATION OF VETERANS'  ADMINISTRATION POLICY.  THE HOUSE REPORT
STATES THAT THE CASES ALREADY FILED IN THE COURTS IN RESPONSE TO
WELLMAN, THOMPSON, AND TRACY 

"INVOLVE A LARGE VARIETY OF MATTERS--A 1930'S TERMINATION OF A
WIDOW'S PENSION PAYMENTS UNDER A STATUTE THEN EXTANT, BECAUSE OF HER
OPEN AND NOTORIOUS ADULTEROUS COHABITAION; INVALID MARRIAGE TO A
VETERAN; SEVERANCE OF A VETERAN'S SERVICE CONNECTION FOR DISABILITY
COMPENSATION; REDUCTION OF SUCH COMPENSATION BECAUSE OF LESSENED
DISABILITY ... (AND) SUITS ... BROUGHT BY PHILIPPINE WIDOWS OF WORLD
WAR II SERVICEMEN SEEKING RESTORATION OF DEATH COMPENSATION OR PENSION
BENEFITS TERMINATED AFTER THE ADMINISTRATOR RAISED A PRESUMPTION OF
THEIR REMARRIAGE ON THE BASIS OF EVIDENCE GATHERED THROUGH FIELD
EXAMINATION.  NOTWITHSTANDING THE 1962 ENDORSEMENT BY THE CONGRESS OF
THE VETERANS' ADMINISTRATIONS (SIC) ADMINISTRATIVE PRESUMPTION OF
REMARRIAGE RULE, MOST OF (THE SUITS BROUGHT BY PHILIPPINE WIDOWS) HAVE
RESULTED IN JUDGMENTS ADVERSE TO THE GOVERNMENT."  ID., AT 10. 

THE ADMINISTRATOR VOICED SIMILAR CONCERNS, STATING THAT "IT SEEMS
OBVIOUS THAT SUITS SIMILAR TO THE SEVERAL HUNDRED ALREADY FILED CAN-
AND UNDOUBTEDLY WILL--SUBJECT NEARLY EVERY ASPECT OF OUR BENEFIT
DETERMINATIONS TO JUDICIAL REVIEW, INCLUDING RATING DECISIONS, RELATED
VETERANS'  ADMINISTRATION REGULATIONS, ADMINISTRATOR'S DECISIONS, AND
VARIOUS ADJUDICATION PROCEDURES."  LETTER TO THE COMMITTEE ON VETERANS'
AFFAIRS 23 - 24. 

THUS, THE 1970 AMENDMENT WAS ENACTED TO OVERRULE THE INTERPRETATION
OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, AND
THEREBY RESTORE VITALITY TO THE TWO PRIMARY PURPOSES TO BE SERVED BY
THE NO-REVIEW CLAUSE.  NOTHING WHATEVER IN THE LEGISLATIVE HISTORY OF
THE 1970 AMENDMENT, OR PREDECESSOR NO-REVIEW CLAUSES, SUGGESTS ANY
CONGRESSIONAL INTENT TO PRECLUDE JUDICIAL COGNIZANCE OF CONSTITUTIONAL
CHALLENGES TO VETERANS' BENEFITS LEGISLATION.  SUCH CHALLENGES
OBVIOUSLY DO NOT CONTRAVENE THE PURPOSES OF THE NO-REVIEW CLAUSE, FOR
THEY CANNOT BE EXPECTED TO BURDEN THE COURTS BY THEIR VOLUME, NOR DO
THEY INVOLVE TECHNICAL CONSIDERATIONS OF "VETERANS'  ADMINISTRATION
POLICY.  WE THEREFORE CONCLUDE, IN AGREEMENT WITH THE DISTRICT COURT,
THAT A CONSTRUCTION OF 211 (A) THAT DOES NOT EXTEND THE PROHIBITIONS OF
THAT SECTION TO ACTIONS CHALLENGING THE CONSTITUTIONALITY OF LAWS
PROVIDING BENEFITS FOR VETERANS IS NOT ONLY "FAIRLY POSSIBLE" BUT IS
THE MOST REASONABLE CONSTRUCTION, FOR NEITHER THE TEXT NOR THE SCANT
LEGISLATIVE HISTORY OF 211 (A) PROVIDES THE "CLEAR AND CONVINCING"
EVIDENCE OF CONGRESSIONAL INTENT REQUIRED BY THIS COURT BEFORE A
STATUTE WILL BE CONSTRUED TO RESTRICT ACCESS TO JUDICIAL REVIEW.  SEE
ABBOTT LABORATORIES V. GARDNER, 387 U.S. 136, 141 (1967). 

        II 

TURNING TO THE MERITS, THE DISTRICT COURT HELD THAT, BY NOT
INCLUDING APPELLEE AND HIS CLASS, THE CHALLENGED SECTIONS OF THE ACT
CREATE AN ARBITRARY CLASSIFICATION IN VIOLATION OF APPELLEE'S RIGHT TO
EQUAL PROTECTION OF THE LAWS.  IN DETERMINING WHETHER, IN LIMITING THE
CLASS OF DRAFTEES ENTITLED TO BENEFITS TO THOSE WHO SERVE THEIR COUNTRY
ON ACTIVE DUTY IN THE ARMED FORCES, CONGRESS DENIED EQUAL PROTECTION OF
THE LAWS TO SELECTIVE SERVICE REGISTRANTS WHO PERFORM ALTERNATIVE
CIVILIAN SERVICE AS CONSCIENTIOUS OBJECTORS, /13/  OUR ANALYSIS OF THE
CLASSIFICATION PROCEEDS ON THE BASIS THAT, ALTHOUGH AN INDIVIDUAL'S
RIGHT TO EQUAL PROTION OF THE LAWS "DOES NOT DENY ... THE POWER TO
TREAT DIFFERENT CLASSES OF PERSONS IN DIFFERENT WAYS(;) ... (IT DENIES)
THE POWER TO LEGISLATE THAT DIFFERENT TREATMENT BE ACCORDED TO PERSONS
PLACED BY A STATUTE INTO DIFFERENT CLASSES ON THE BASIS OF CRITERIA
WHOLLY UNRELATED TO THE OBJECTIVE OF THAT STATUTE.  A CLASSIFICATION
'MUST BE REASONABLE, NOT ARBITRARY, AND MUST REST UPON SOME GROUND OF
DIFFERENCE HAVING A FAIR AND SUBSTANTIAL RELATION TO THE OBJECT OF THE
LEGISLATION, SO THAT ALL PERSONS SIMILARLY CIRCUMSTANCED SHALL BE
TREATED ALIKE.'  ROYSTER GUANO CO. V. VIRGINIA, 253 U.S. 412, 415
(1920)."  REED V. REED, 404 U.S. 71, 75 - 76 (1971).  /14/ 

UNLIKE MANY STATE AND FEDERAL STATUTES THAT COME BEFORE US, CONGRESS
IN THIS STATUTE HAS RESPONSIBLY REVEALED ITS EXPRESS LEGISLATIVE
OBJECTIVES IN 1651 OF THE ACT AND NO OTHER OBJECTIVE IS CLAIMED: 

     " THE CONGRESS OF THE UNITED STATES HEREBY DECLARES THAT THE

EDUCATION PROGRAM CREATED BY THIS CHAPTER IS FOR THE PURPOSE OF

  (1) ENCHANCING AND MAKING MORE ATTRACTIVE SERVICE IN THE ARMED

  FORCES OF THE UNITED STATES, (2) EXTENDING THE BENEFITS OF A

  HIGHER EDUCATION TO QUALIFIED AND DESERVING YOUNG PERSONS WHO

  MIGHT NOT OTHERWISE BE ABLE TO AFFORD SUCH AN EDUCATION, (3)

  PROVIDING VOCATIONAL READJUSTMENT AND RESTORING LOST EDUCATIONAL

  OPPORTUNITIES TO THOSE SERVICE MEN AND WOMEN WHOSE CAREERS HAVE

  BEEN INTERRUPTED OR IMPEDED BY REASON OF ACTIVE DUTY AFTER

  JANUARY 31, 1955, AND (4) AIDING SUCH PERSONS IN ATTAINING THE

  VOCATIONAL AND EDUCATIONAL STATUS WHICH THEY MIGHT NORMALLY HAVE

  ASPIRED TO AND OBTAINED HAD THEY NOT SERVED THEIR COUNTRY." 

LEGISLATION TO FURTHER THESE OBJECTIVES IS PLAINLY WITHIN CONGRESS'
ART. I, 8, POWER "TO RAISE AND SUPPORT ARMIES."  OUR TASK IS THEREFORE
NARROWED TO THE DETERMINATION OF WHETHER THERE IS SOME GROUND OF
DIFFERENCE HAVING A FAIR AND SUBSTANTIAL RELATION TO AT LEAST ONE OF
THE STATED PURPOSES JUSTIFYING THE DIFFERENT TREATMENT ACCORDED
VETERANS WHO SERVED ON ACTIVE DUTY IN THE ARMED FORCES, AND
CONSCIENTIOUS OBJECTORS WHO PERFORMED ALTERNATIVE CIVILIAN SERVICE. 

THE DISTRICT COURT REASONED THAT OBJECTIVES (2), (3), AND (4) OF
1651 ARE BASICALLY VARIATIONS ON A SINGLE THEME REFLECTING A
CONGRESSIONAL PURPOSE TO "ELIMINATE THE EDUCATIONAL GAPS BETWEEN
PERSONS WHO SERVED THEIR COUNTRY AND THOSE WHO DID NOT."  352 F.SUPP.,
AT 858.  THEREFORE, 

"(THE EXCLUSION FROM ELIGIBILITY OF (APPELLEE) AND HIS CLASS WOULD
BE JUSTIFIED IF THEY DO NOT SUFFER THE SAME DISRUPTION IN EDUCATIONAL
CAREERS AS DO MILITARY VETERANS, AND THUS ARE NOT SIMILARLY SITUATED
WITH RESPECT TO THE STATUTE'S PURPOSE.  WE BELIEVE..., THAT THE
DISRUPTION IS EQUAL AS BETWEEN THE TWO GROUPS.  LIKE MILITARY VETERANS,
ALTERNATE SERVICEMEN HAVE BEEN EXPOSED TO THE UNCERTAINTIES CAUSED BY
THE DRAFT LAW.  THEY TOO WERE BURDENED AT ONE TIME BY AN UNSATISFIED
MILITARY OBLIGATION THAT ADVERSELY AFFECTED THEIR EMPLOYMENT POTENTIAL;
WERE FORCED, BECAUSE OF THE DRAFT LAW, TO (FORGO) IMMEDIATELY ENTERING
INTO VOCATIONAL TRAINING OR HIGHER EDUCATION; AND WERE DEPRIVED, DURING
THE TIME THEY PERFORMED ALTERNATE SERVICE, OF THE OPPORTUNITY TO OBTAIN
EDUCATIONAL OBJECTIVES OR PURSUE MORE REWARDING CIVILIAN GOALS."  ID.,
AT 858 - 859. 

THE ERROR IN THIS RATIONALE IS THAT IT STATES TOO BROADLY THE
CONGRESSIONAL OBJECTIVE REFLECTED IN (2), (3), AND (4) OF 1651.  THE
WORDING OF THOSE SECTIONS, IN CONJUNCTION WITH THE ATTENDANT
LEGISLATIVE HISTORY, MAKES CLEAR THAT CONGRESS' PURPOSE IN ENACTING THE
VETERANS' READJUSTMENT BENEFITS ACTS OF 1966 WAS NOT PRIMARILY TO
"ELIMINATE THE EDUCATIONAL GAPS BETWEEN PERSONS WHO SERVED THEIR
COUNTRY AND THOSE WHO DID NOT," BUT RATHER TO COMPENSATE FOR THE
DISRUPTION THAT MILITARY SERVICE CAUSES TO CIVILIAN LIVES.  IN OTHER
WORDS, THE AIM OF THE ACT WAS TO ASSIST THOSE WHO SERVED ON ACTIVE DUTY
IN THE ARMED FORCES TO "READJUST" TO CIVILIAN LIFE.  INDEED, AS THE
APPELLANTS ARGUE, BRIEF FOR A APPELLANTS 20 N. 18, "THE VERY NAME OF
THE STATUTE--THE VETERANS' READJUSTMENT BENEFITS ACT--EMPHASIZES
CONGRESSIONAL CONCERN WITH THE VETERAN'S NEED FOR ASSISTANCE IN
READJUSTING TO CIVILIAN LIFE." 

OF COURSE, MERELY LABELING THE CLASS OF BENEFICIARIES UNDER THE ACT
AS THOSE HAVING SERVED ON ACTIVE DUTY IN THE ARMED SERVICES CANNOT
RATIONALIZE A STATUTORY DISCRIMINATION AGAINST CONSCIENTIOUS OBJECTORS
WHO HAVE PERFORMED ALTERNATIVE CIVILIAN SERVICE, IF, IN FACT, THE LIVES
OF THE LATTER WERE EQUALLY DISRUPTED AND EQUALLY IN NEED OF
READJUSTMENT.  SEE RICHARDSON V. BELCHER, 404 U.S. 78, 83 (1971).  THE
DISTRICT COURT FOUND THAT MILITARY VETERANS AND ALTERNATIVE SERVICE
PERFORMERS SHARE THE CHARACTERISTIC DURING THEIR RESPECTIVE SERVICE
CAREERS OF "INABILITY TO PURSUE THE EDUCATIONAL AND ECONOMIC OBJECTIVES
THAT PERSONS NOT SUBJECT TO THE DRAFT LAW COULD PURSUE."  352 F.SUPP.,
AT 859.  BUT THIS FINDING OF SIMILARITY IGNORES THAT A COMMON
CHARACTERISTIC SHARED BY BENEFICIARIES AND NONBENEFICIARIES ALIKE, IS
NOT SUFFICIENT TO INVALIDATE A STATUTE WHEN OTHER CHARACTERISTICS
PECULIAR TO ONLY ONE GROUP RATIONALLY EXPLAIN THE STATUTE'S DIFFERENT
TREATMENT OF THE TWO GROUPS.  CONGRESS EXPRESSLY RECOGNIZED THAT
SIGNIFICANT DIFFERENCES EXIST BETWEEN MILITARY SERVICE VETERANS AND
ALTERNATIVE SERVICE PERFORMERS, PARTICULARLY IN RESPECT OF THE ACT'S
PURPOSE TO PROVIDE BENEFITS TO ASSIST IN READJUSTING TO CIVILIAN LIFE. 
THESE DIFFERENCES "AFFORD THE BASIS FOR A DIFFERENT TREATMENT WITHIN A
CONSTITUTIONAL FRAMEWORK," MC GINNIS V. ROYSTER, 410 U.S. 263, 271
(1973). 

FIRST, THE DISRUPTION CAUSED BY MILITARY SERVICE IS QUANTITATIVELY
GREATER THAN THAT CAUSED BY ALTERNATIVE CIVILIAN SERVICE.  A
CONSCIENTIOUS OBJECTOR PERFORMING ALTERNATIVE SERVICE IS OBLIGATED TO
WORK FOR TWO YEARS.  SERVICE IN THE ARMED FORCES, ON THE OTHER HAND,
INVOLVES A SIX-YEAR COMMITMENT.  WHILE ACTIVE DUTY MAY BE LIMITED TO
TWO YEARS, THE MILITARY VETERAN REMAINS SUBJECT TO AN ACTIVE RESERVE
AND THEN STANBY RESERVE OBLIGATION AFTER RELEASE FROM ACTIVE DUTY. 
THIS ADDITIONAL MILITARY SERVICE OBLIGATION WAS EMPHASIZED BY CONGRESS
AS A SIGNIFICANT REASON FOR PROVIDING VETERANS'  READJUSTMENT
BENEFITS.  A SECTION ENTITLED "COMPULSORY RESERVE REQUIREMENTS" OF THE
SENATE REPORT STATES: 

     " THE HARDSHIPS OF COLD WAR SERVICE ARE STILL FURTHER

  AGGRAVATED BY THE COMPULSORY MILITARY RESERVE OBLIGATION WHICH

  THE GOVERNMENT HAS IMPOSED ON ALL MEN WHO ENTERED SERVICE AFTER

  AUGUST 9, 1955.  THIS OBLIGATION IS, OF COURSE, IN SHARP CONTRAST

  WITH THE TRADITIONAL MILITARY OBLIGATION WHICH ENDS IMMEDIATELY

  UPON DISCHARGE FROM ACTIVE DUTY.  MORE IMPORTANTLY, HOWEVER, THE

  ACTIVE RESERVE OBLIGATION IMPEDES THE COLD WAR VETERANS' FULL

  PARTICIPATION IN CIVIL LIFE, WHICH, IN TURN, AGAIN EXPOSES THEM

  TO UNFAIR COMPETITION FROM THEIR CIVILIAN CONTEMPORARIES.  THE

  FACT THAT VETERANS MUST DISCHARGE A POST-KOREAN RESERVE

  OBLIGATION INVOLVING DRILLS AND OTHER MILITARY ACTIVITIES QUITE

  OBVIOUSLY ENABLES THEIR CIVILIAN CONTEMPORARIES, BY COMPARISON,

  TO MAKE STILL MORE GAINS TOWARD ENJOYMENT OF THE FRUITS OF OUR

  FREE ENTERPRISE SOCIETY.... (FOR THOSE MEN WHO WISH TO DEVOTE

  FULL TIME TO THEIR CIVIL GOALS, THE RESERVE OBLIGATION

  CONSTITUTES A SUBSTANTIAL SUPPLEMENTARY BURDEN."  S.REP.  NO.
269,

  89TH CONG., 1ST SESS., 10 (1965). 

SECOND, THE DISRUPTIONS SUFFERED BY MILITARY VETERANS AND
ALTERNATIVE SERVICE PERFORMERS ARE QUALITATIVELY DIFFERENT.  MILITARY
VETERANS SUFFER A FAR GREATER LOSS OF PERSONAL FREEDOM DURING THEIR
SERVICE CAREERS.  UPROOTED FROM CIVILIAN LIFE, THE MILITARY VETERAN
BECOMES PART OF THE MILITARY ESTABLISHMENT, SUBJECT TO ITS DISCIPLINE
AND POTENTIALLY HAZARDOUS DUTY.  CONGRESS WAS ACUTELY AWARE OF THE
PECULIAR DISABILITIES CAUSED BY MILITARY SERVICE, IN CONSEQUENCE OF
WHICH MILITARY SERVICEMEN HAVE A SPECIAL NEED FOR READJUSTMENT
BENEFITS.  THE SENATE REPORT ACCOMPANYING THE ACT STATES: 

     " COMPULSORY MILITARY SERVICE, BECAUSE OF ITS INCOMPATIBILITY

  WITH OUR TRADITIONS AND NATIONAL TEMPERAMENT, IS NOT LIGHTLY

  IMPOSED UPON OUR CITIZENRY.  ONLY WAR, OR THE IMMINENT THREAT OF

  WAR FROM UNFRIENDLY POWERS, CREATES THE CONDITIONS, WHICH, BY THE

  VALUES OF OUR SOCIETY, JUSTIFY THIS EXTRAORDINARY DEVIATION FROM

  OUR FREE ENTERPRISE, INDIVIDUALISTIC WAY OF LIFE.  WHEN, AS NOW,

  THE NEED FOR LARGE BUT LIMITED FORCES CONFLICTS WITH OUR SENSE OF

  EQUITY WHICH EXPECTS EQUAL NATIONAL SERVICE FROM ALL, WE ARE

  CONCERNED TO FIND THAT LESS THAN HALF OF OUR YOUNG MEN WILL EVER

  BE COMPELLED TO SERVE A SUBSTANTIAL PERIOD IN THE MILITARY

  ESTABLISHMENT. 

        .         .         .        .         . 

     " ACTION TO REDRESS THE INEQUITIES OF THIS SITUATION IS LONG

  OVERDUE.  OUR POST-KOREAN VETERANS ARE BESET WITH PROBLEMS ALMOST

  IDENTICAL WITH THOSE TO WHICH THE TWO PREVIOUS GI BILLS WERE

  ADDRESSED.  LIKE THEIR FATHERS AND ELDER BROTHERS, POST-KOREAN

  VETERANS LOSE TIME FROM THEIR COMPETIVE CIVIL LIVES DIRECTLY

  BECAUSE OF MILITARY SERVICE.  AS A CONSEQUENCE, THEY LOSE

VALUABLE OPPORTUNITIES RANGING FROM EDUCATIONAL ADVANTAGES TO

  WORTHWHILE JOB POSSIBILITIES AND POTENTIALLY PROFITABLE BUSINESS

  VENTURES.  IN ADDITION, AFTER COMPLETION OF THEIR MILITARY

  SERVICE THEY CONFRONT SERIOUS DIFFICULTIES DURING THE TRANSITION

  TO CIVIL LIFE. 

        .     .         .         .         . 

     " THE MAJOR PART OF THE BURDEN CAUSED BY THESE COLD WAR

  CONDITIONS QUITE OBVIOUSLY FALLS UPON THOSE OF OUR YOUTHS WHO ARE

  CALLED TO EXTENDED TOURS OF ACTIVE MILITARY SERVICE.  IT IS THEY

WHO MUST SERVE IN THE ARMED FORCES THROUGHOUT TROUBLED PARTS OF

  THE WORLD, THEREBY SUBJECTING THEMSELVES TO THE MENTAL AND

  PHYSICAL HAZARDS AS WELL AS THE ECONOMIC AND FAMILY DETRIMENTS

  WHICH ARE PECULIAR TO MILTARY SERVICE AND WHICH DO NOT EXIST IN

  NORMA CIVIL LIFE.  IT IS THEY WHO, UPON SEPARATION FROM SERVICE,

  FIND THEMSELVES FAR, FAR BEHIND THOSE IN THEIR AGE GROUP WHOSE

  LIVES HAVE NOT BEEN DISRUPTED BY MILITARY SERVICE."  S.REP.  NO.

  269, 89TH CONG., 1ST SESS., 3, 6 - 7, 8 (1965) (EMPHASIS ADDED). 

SEE ALSO H.R. REP. NO. 1258, 89TH CONG., 2D SESS., 4 (1966).  /15/
CONGRESS' RELIANCE UPON THESE DIFFERENCES BETWEEN MILITARY AND CIVILIAN
SERVICE IS HIGHLIGHTED BY THE INCLUSION OF CLASS I-A-O CONSCIENTIOUS
OBJECTORS, WHO SERVE IN THE MILITARY IN NONCOMBATANT ROLES, WITHIN THE
CLASS OF BENEFICIARIES ENTITLED TO EDUCATIONAL BENEFITS UNDER THE ACT. 
/16/ 

THESE QUANTITATIVE AND QUALITATIVE DISTINCTIONS, EXPRESSLY
RECOGNIZED BY CONGRESS, FORM A RATIONAL BASIS FOR CONGRESS'
CLASSIFICATION LIMITING EDUCATIONAL BENEFITS TO MILITARY SERVICE
VETERANS AS A MEANS OF HELPING THEM READJUST TO CIVILIAN LIFE;
ALTERNATIVE SERVICE PERFORMERS ARE NOT REQUIRED TO LEAVE CIVILIAN LIFE
TO PERFORM THEIR SERVICE. 

THE STATUTORY CLASSIFICATION ALSO BEARS A RATIONAL RELATIONSHIP TO
OBJECTIVE (1) OF 1651, THAT OF "ENHANCING AND MAKING MORE ATTRACTIVE
SERVICE IN THE ARMED FORCES OF THE UNITED STATES."  BY PROVIDING
EDUCATIONAL BENEFITS TO ALL MILITARY VETERANS WHO SERVE ON ACTIVE DUTY
CONGRESS EXPRESSED ITS JUDGMENT THAT SUCH BENEFITS WOULD MAKE MILITARY
SERVICE MORE ATTRACTIVE TO ENLISTEES AND DRAFTEES ALIKE.  APPELLEE
CONCEDES, BRIEF FOR APPELLEE 28, THAT THIS OBJECTIVE IS RATIONALLY
PROMOTED BY PROVIDING EDUCATIONAL BENEFITS TO THOSE WHO ENLIST.  BUT,
APPELLEE ARGUES, THERE IS NO RATIONAL BASIS FOR EXTENDING EDUCATIONAL
BENEFITS TO DRAFTEES WHO SERVE IN THE MILITARY AND NOT TO DRAFTEES WHO
PERFORM CIVILIAN ALTERNATIVE SERVICE, SINCE NEITHER GROUP IS INDUCED BY
EDUCATIONAL BENEFITS TO ENLIST.  THEREFORE, APPELLEE CONCLUDES, THE
ACT'S CLASSIFICATION SCHEME DOES NOT AFFORD EQUAL PROTECTION BECAUSE IT
FAILS TO TREAT EQUALLY PERSONS SIMILARLY CICUMSTANCED. 

THE TWO GROUPS OF DRAFTEES ARE, IN FACT, NOT SIMILARLY
CIRCUMSTANCED.  TO BE SURE, A DRAFTEE, BY DEFINITION, DOES NOT FIND
EDUCATIONAL BENEFITS SUFFICIENT INCENTIVE TO ENLIST.  BUT, MILITARY
SERVICE WITH EDUCATIONAL BENEFITS IS OBVIOUSLY MORE ATTRACTIVE TO A
DRAFTEE THAN MILITARY SERVICE WITHOUT EDUCATIONAL BENEFITS.  THUS, THE
EXISTENCE OF EDUCATIONAL BENEFITS MAY HELP INDUCE A MILITARY DRAFTEE
EITHER TO VOLUNTEER FOR THE DRAFT OR NOT SEEK A LOWER SELECTIVE SERVICE
CLASSIFICATION.  /17/  FURTHERMORE, ONCE DRAFTED, EDUCATIONAL BENEFITS
MAY HELP MAKE MILITRY SERVICE MORE PALATABLE TO A DRAFTEE AND THUS
REDUCE A DRAFTEE'S UNWILLINGNESS TO BE A SOLDIER.  ON THE OTHER HAND,
BECAUSE A CONSCIENTIOUS OBJECTOR BASES HIS REFUSAL TO SERVE IN THE
ARMED FORCES UPON DEEPLY HELD RELIGIOUS BELIEFS, WE WILL NOT ASSUME
THAT EDUCATIONAL BENEFITS WILL MAKE MILITARY SERVICE MORE ATTRACTIVE TO
HIM.  WHEN, AS IN THIS CASE, THE INCLUSION OF ONE GROUP PROMOTES A
LEGITIMATE GOVERNMENTAL PURPOSE, AND THE ADDITION OF OTHER GROUPS WOULD
NOT, WE CANNOT SAY THAT THE STATUTE'S CLASSIFICATION OF BENEFICIARIES
AND NONBENEFICIARIES IS INVIDIOUSLY DISCRIMINATORY.  /18/

        III 

FINALLY, APPELLEE ARGUES THAT THE DISTRICT COURT ERRED IN HOLDING
THAT "THE CHALLENGED EXCLUSION DOES NOT ABRIDGE (APPELLEE'S) FREE
EXERCISE OF HIS RELIGION," 352 F. SUPP., AT 860.  HE CONTENDS THAT THE
ACT'S DENIAL OF BENEFITS TO ALTERNATIVE SERVICE CONSCIENTIOUS OBJECTORS
INTERFERES WITH HIS FREE EXERCISE OF RELIGION BY INCREASING THE PRICE
HE MUST PAY FOR ADHERENCE TO HIS RELIGIOUS BELIEFS.  THAT CONTENTION
MUST BE REJECTED IN LIGHT OF OUR DECISION IN GILLETTEE V. UNITED
STATES, 401 U.S. 437 (1971). 

THERE, THE PETITIONERS, CONSCIENTIOUS OBJECTORS TO PARTICULAR WARS,
ARGUED THAT 6 (J) OF THE MILITARY SELECTIVE SERVICE ACT OF 1967, 50
U.S.C. APP. 456 (J), WHICH LIMITS AN EXEMPTION FROM MILITARY SERVICE TO
THOSE WHO CONSCIENTIOUSLY OBJECT TO "PARTICIPATION IN WAR IN ANY FORM"
(EMPHASIS SUPPLIED), INFRINGED THEIR RIGHTS UNDER THE FREE EXERCISE
CLAUSE BY REQUIRING THEM TO ABANDON THEIR RELIGIOUS BELIEFS AND
PARTICIPATE IN WHAT THEY DEEMED AN UNJUST WAR OR GO TO JAIL.  WE
ACKNOWLEDGED THAT     "THE FREE EXERCISE CLAUSE BARS 'GOVERNMENTAL
REGULATION OF RELIGIOUS BELIEFS AS SUCH,' SHERBERT V. VERNER, 374 U.S.
398, 402 (1963), OR INTERFERENCE WITH THE DISSEMINATION OF RELIGIOUS
IDEAS.  SEE FOWLER V. RHODE ISLAND, 345 U.S. 67 (1953); FOLLETT V. MC
CORMICK, 321 U.S. 573 (1944); MURDOCK V. PENNSYLVANIA, 319 U.S. 105
(1943).  IT PROHIBITS MISUSE OF SECULAR GOVERNMENTAL PROGRAMS 'TO
IMPEDE THE OBSERVANCE OF ONE OR ALL RELIGIONS OR...TO DISCRIMINATE
INVIDIOUSLY BETWEEN RELIGIONS,...EVEN THOUGH THE BURDEN MAY BE
CHARACTERIZED AS BEING ONLY INDIRECT.'  BRAUNFELD V. BROWN, 366 U.S.,
AT 607 (OPINION OF WARREN, C. J.).  AND EVEN AS TO NEUTRAL PROHIBITORY
OR REGULATORY LAWS HAVING SECULAR AIMS, THE FREE EXERCISE CLAUSE MAY
CONDEMN CERTAIN APPLICATIONS CLASHING WITH IMPERATIVES OF RELIGION AND
CONSCIENCE, WHEN THE BURDEN ON FIRST AMENDMENT VALUES IS NOT
JUSTIFIABLE IN TERMS OF THE GOVERNMENT'S VALID AIMS."  401 U.S., AT
462.  WE MADE CLEAR, HOWEVER, THAT "(OUR CASES DO NOT AT THEIR FARTHEST
REACH SUPPORT THE PROPOSITION THAT A STANCE OF CONSCIENTIOUS OPPOSITION
RELIEVES AN OBJECTOR FROM ANY COLLIDING DUTY FIXED BY A DEMOCRATIC
GOVERNMENT."  "(RATHER,) INCIDENTAL BURDENS . . . (MAY BE STRICTLY
JUSTIFIED BY SUBSTANTIAL GOVERNMENTAL INTERESTS...."  ID., AT 461,
462.  FINDING "THE GOVERNMENT'S INTEREST IN PROCURING THE MANPOWER
NECESSARY FOR MILITARY PURPOSES, PURSUANT TO THE CONGRESSIONAL GRANT OF
POWER TO CONGRESS TO RAISE AND SUPPORT ARMIES(,) ART. I, 8," "OF A KIND
AND WEIGHT SUFFICIENT TO JUSTIFY UNDER THE FREE EXERCISE CLAUSE THE
IMPACT OF THE CONSCRIPTION LAWS ON THOSE WHO OBJECT TO PARTICULAR
WARS," ID., AT 462, 461, WE HELD THAT 6 (J) DID NOT VIOLATE THE FREE
EXERCISE CLAUSE. 

THE CHALLENGED LEGISLATION IN THE PRESENT CASE DOES NOT REQUIRE
APPELLEE AND HIS CLASS TO MAKE ANY CHOICE COMPARABLE TO THAT REQUIRED
OF THE PETITIONERS IN GILLETTE.  THE WITHHOLDING OF EDUCATIONAL
BENEFITS INVOLVES ONLY AN INCIDENTAL BURDEN UPON APPELLEE'S FREE
EXERCISE OF RELIGION--IF, INDEED, ANY BURDEN EXISTS AT ALL.  /19/  AS
PART II, SUPRA, DEMONSTRATES, THE ACT WAS ENACTED PURSUANT TO CONGRESS'
ART. I, 8, POWERS TO ADVANCE THE NEUTRAL, SECULAR GOVERNMENTAL
INTERESTS OF ENHANCING MILITARY SERVICE AND AIDING THE READJUSTMENT OF
MILITARY PERSONNEL TO CIVILIAN LIFE.  APPELLEE AND HIS CLASS WERE NOT
INCLUDED IN THIS CLASS OF BENEFICIARIES, NOT BECAUSE OF ANY LEGISLATIVE
DESIGN TO INTERFERE WITH THEIR FREE EXERCISE OF RELIGION, BUT BECAUSE
TO DO SO WOULD NOT RATIONALLY PROMOTE THE ACT'S PURPOSES.  THUS, IN
LIGHT OF GILLETTE, THE GOVERNMENT'S SUBSTANTIAL INTEREST IN RAISING AND
SUPPORTING ARMIES, ART. I, 8, IS OF "A KIND AND WEIGHT"  CLEARLY
SUFFICIENT TO SUSTAIN THE CHALLENGED LEGISLATION, FOR THE BURDEN UPON
APPELLEE'S FREE EXERCISE OF RELIGION--THE DENIAL OF THE ECONOMIC VALUE
OF VETERANS' EDUCATIONAL BENEFITS UNDER THE ACT--IS NOT NEARLY OF THE
SAME ORDER OR MAGNITUDE AS THE INFRINGEMENT UPON FREE EXERCISE OF
RELIGION SUFFERED BY PETITIONERS IN GILLETTE.  SEE ALSO WISCONSIN V.
YODER, 406 U.S. 205, 214 (1972). 

              REVERSED. 

/1/  TITLE 50 U.S.C. APP. 456(J) EXEMPTS FROM MILITARY SEVICE
PERSONS "WHO, BY REASON OF RELIGIOUS TRAINING AND BELIEF," ARE OPPOSED
TO PARTICIPATION IN "WAR IN ANY FORM." 

TITLE 32 CFR 1622.14 (1971) DIRECTED LOCAL SELECTIVE SERVICE BOARDS
THAT 

"(IN CLASS I-O SHALL BE PLACED EVERY REGISTRANT WHO WOULD HAVE BEEN
CLASSIFIED IN CLASS I-A BUT FOR THE FACT THAT HE HAS BEEN FOUND, BY
REASON OF RELIGIOUS TRAINING AND BELIEF, TO BE CONSCIENTIOUSLY OPPOSED
TO PARTICIPATION IN WAR IN ANY FORM AND TO BE CONSCIENTIOUSLY OPPOSED
TO PARTICIPATION IN BOTH COMBATANT AND NONCOMBATANT TRAINING AND
SERVICE IN THE ARMED FORCES.  FURTHER, 456 (J) AND 32 CFR 1660.1 -12
(1972) AUTHORIZED LOCAL SELECTIVE SERVICE BOARDS TO ORDER I-O
CONSCIENTIOUS OBJECTORS TO PERFORM ALTERNATIVE CIVILIAN SERVICE
CONTRIBUTING TO THE MAINTENANCE OF THE NATIONAL HEALTH, SAFETY, OR
INTEREST. 

/2/  TITLE 38 U.S.C. 101 PROVIDES, IN PERTINENT PART: 

"(21) THE TERM 'ACTIVE DUTY' MEANS--, 

"(A) FULL-TIME DUTY IN THE ARMED FORCES, OTHER THAN ACTIVE DUTY FOR
TRAINING."  TITLE 38 U.S.C. 1652 (A)(1) PROVIDES: 

" THE TERM 'ELIGIBLE VETERAN' MEANS ANY VETERAN WHO (A) SERVED ON
ACTIVE DUTY FOR A PERIOD OF MORE THAN 180 DAYS ANY PART OF WHICH
OCCURRED AFTER JANUARY 31, 1955, AND WHO WAS DISCHARGED OR RELEASED
THEREFROM UNDER CONDITIONS OTHER THAN DISHONORABLE OR (B) WAS
DISCHARGED OR RELEASED FROM ACTIVE DUTY AFTER SUCH DATE FOR A SERVICE
CONNECTED DISABILITY."  TITLE 38 U.S.C. 1661 (A) PROVIDES:

" EXCEPT AS PROVIDED IN SUBSECTION (C) AND IN THE SECOND SENTENCE OF
THIS SUBSECTION, EACH ELIGIBLE VETERAN SHALL BE ENTITLED TO EDUCATIONAL
ASSISTANCE UNDER THIS CHAPTER FOR A PERIOD OF ONE AND ONE-HALF MONTHS
(OR THE EQUIVALENT THEREOF IN PART-TIME EDUCATIONAL ASSISTANCE) FOR
EACH MONTH OR FRACTION THEREOF OF HIS SERVICE ON ACTIVE DUTY AFTER
JANUARY 31, 1955.  IF AN ELIGIBLE VETERAN HAS SERVED A PERIOD OF 18
MONTHS OR MORE ON ACTIVE DUTY AFTER JANUARY 31, 1955, AND HAS BEEN
RELEASED FROM SUCH SERVICE UNDER CONDITIONS THAT WOULD SATISFY HIS
ACTIVE DUTY OBLIGATIONS, HE SHALL BE ENTITLED TO EDUCATIONAL ASSISTANCE
UNDER THIS CHAPTER FOR A PERIOD OF 36 MONTHS (OR THE EQUIVALENT THEREOF
IN PART-TIME EDUCATIONAL ASSISTANCE)." 

THE AMOUNT OF MONEY PROVIDED BY THE ACT VARIES WITH THE TYPE OF
EDUCATIONAL PROGRAM PURSUED AND THE NUMBER OF DEPENDENTS A VERTERAN
HAS.  FOR EXAMPLE, A VETERAN ENROLLED IN A FULL-TIME COLLEGE OR
GRADUATE DEGREE PROGRAM WITH TWO DEPENDENTS RECEIVES $298 PER MONTH. 
TITLE 38 U.S.C. 1682 (A), AS AMENDED BY THE VIETNAM ERA VETERANS'
READJUSTMENT ASSISTANCE ACT OF 1972, 102,86 STAT. 1075. 

/3/  IN DEFINING THE CLASS THE DISTRICT COURT STATED: " THE COURT
ALSO RULES THAT CERTIFICATION OF A CLASS, PURSUANT TO FED. RULE CIV.
PROC. 23, IS WARRANTED, THE CLASS TO INCLUDE ALL THOSE SELECTIVE
SERVICE REGISTRANTS WHO HAVE COMPLETED 180 DAYS OF 'ALTERNATE SERVICE'
PURSUANT TO 50 U.S.C. APP. 456 (J), AND WHO HAVE EITHER (1)
SATISFACTORILY COMPLETED TWO YEARS OF SUCH SERVICE OR (2) BEEN RELEASED
THEREFROM FOR MEDICAL OR OTHER REASON AFTER 180 DAYS OF SUCH SERVICE." 
352 F.SUPP.  848, 851. 

/4/  ALTHOUGH "THE FIFTH AMENDMENT CONTAINS NO EQUAL PROTECTION
CLAUSE, IT DOES FORBID DISCRIMINATION THAT IS 'SO UNJUSTIFIABLE AS TO
BE VIOLATIVE OF DUE PROCESS.'"  SCHNEIDER V. RUSK, 377 U.S. 163, 168
(1964); SEE FRONTIERO V. RICHARDSON, 411 U.S. 677, 680 N. 5 (1973);
SHAPIRO V. THOMPSON, 394 U.S. 618, 641 - 642 (1969); BOLLING V. SHARPE,
347 U.S. 497 (1954).  THUS, IF A CLASSIFICATION WOULD BE INVALID UNDER
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, IT IS ALSO
INCONSISTENT WITH THE DUE PROCESS REQUIREMENT OF THE FIFTH AMENDMENT. 
SEE RICHARDSON V. BELCHER, 404 U.S. 78, 81 (1971). 

/5/  TITLE 38 U.S.C. 211 (A) PROVIDES: 

"(A) ON AND AFTER OCTOBER 17, 1940, EXCEPT AS PROVIDED IN SECTIONS
775, 784, AND AS TO MATTERS ARISING UNDER CHAPTER 37 OF THIS TITLE, THE
DECISIONS OF THE ADMINISTRATOR ON ANY QUESTION OF LAW OR FACT UNDER ANY
LAW ADMINISTERED BY THE VETERANS' ADMINISTRATION PROVIDING BENEFITS FOR
VETERANS AND THEIR DEPENDENTS OR SURVIVORS SHALL BE FINAL AND
CONCLUSIVE AND NO OTHER OFFICIAL OR ANY COURT OF THE UNITED STATES
SHALL HAVE POWER OR JURISDICTION TO REVIEW ANY SUCH DECISION BY AN
ACTION IN THE NATURE OF MANDAMUS OR OTHERWISE." 

/6/  A SECOND PARAGRAPH OF THE JUDGMENT DECLARES THAT APPELLEE AND
MEMBERS OF HIS CLASS, WHO HAVE SATISFACTORILY COMPLETED TWO YEARS OF
ALTERNATIVE CIVILIAN SERVICE, OR WHO, AFTER COMPLETING 180 DAYS OF SUCH
SERVICE, HAVE BEEN RELEASED THEREFROM, ARE TO BE CONSIDERED "ELIGIBLE"
WITHIN 1652 (A) (1) TO RECEIVE BENEFITS TO THE SAME DEGREE AND EXTENT
AS VETERANS OF "ACTIVE DUTY"; AND ALTERNATIVE SERVICE SHALL BE
CONSIDERED "ACTIVE DUTY" WITHIN 101 (21) AS APPLIED ONLY TO C. 34 OF
TITLE 38.  352 F.SUPP., AT 862.  IN VIEW OF OUR RESULT, THIS PARAGRAPH
OF THE JUDGMENT IS ALSO REVERSED. 

/7/  THE DISTRICT COURT'S JURISDICTION WAS INVOKED BY APPELLEE
PURSUANT TO 28 U.S.C. 1331, 1337, 1343, AND 1361.  APPELLANTS APPEALED
PURSUANT TO THE PROVISION OF 28 U.S.C. 1252 WHICH PROVIDES: 

" ANY PARTY MAY APPEAL TO THE SUPREME COURT FROM AN INTERLOCUTORY OR
FINAL JUDGMENT, DECREE OR ORDER OF ANY COURT OF THE UNITED
STATES...HOLDING AN ACT OF CONGRESS UNCONSTITUTIONAL IN ANY CIVIL
ACTION, SUIT, OR PROCEEDING TO WHICH THE UNITED STATES OR ANY OF ITS
AGENCIES, OR ANY OFFICER OR EMPLOYEE THEREOF, AS SUCH OFFICER OR
EMPLOYEE, IS A PARTY."  THE APPELLANTS DO NOT APPEAL THE DISTRICT
COURT'S ADVERSE RULING UPON TWO ALTERNATIVE GROUNDS FOR DISMISSAL: THAT
THE COMPLAINT FAILED TO STATE A CLAIM UPON WHICH RELIEF COULD BE
GRANTED, AND THAT THE PLAINTIFF FAILED TO EXHAUST AVAILABLE
ADMINISTRATIVE REMEDIES. 

/8/  COMPARE EX PARTE MC CARDLE, 7 WALL.  506 (1869); SHELDON V.
SIL, 8 HOW.  441 (1850), WITH MARTIN V. HUNTER'S LESSEE, 1 WHEAT, 304
(1816); ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 84
(1936) (BRANDEIS, J., CONCURRING).  SEE HART, THE POWER OF CONGRESS TO
LIMIT THE JURISDICTION OF FEDERAL COURTS: AN EXERCISE IN DIALECTIC, 66
HARV. L.REV.  1362 (1953). 

/9/  SECTION 5 OF THE ECONOMY ACT OF 1933, 48 STAT. 9, WHICH CREATED
THE PRESENT VETERANS' ADMINISTRATION, PROVIDED: 

" ALL DECISIONS RENDERED BY THE ADMINISTRATOR OF VETERANS'  AFFAIRS
UNDER THE PROVISIONS OF THIS TITLE...SHALL BE FINAL AND CONCLUSIVE ON
ALL QUESTIONS OF LAW AND FACT, AND NO OTHER OFFICIAL OR COURT OF THE
UNITED STATES SHALL HAVE JURISDICTION TO REVIEW BY MANDAMUS OR
OTHERWISE ANY SUCH DECISION."  IN 1940 THE NO-REVIEW STATUTE WAS
AMENDED, 54 STAT. 1197, TO EXPAND ITS APPLICATION: 

" NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW...THE DECISIONS OF THE
ADMINISTRATOR OF VETERANS' AFFAIRS ON ANY QUESTION OF LAW OR FACT
CONCERNING A CLAIM FOR BENEFITS OR PAYMENTS UNDER THIS OR ANY OTHER ACT
ADMINISTERED BY THE VETERANS' ADMINISTRATION SHALL BE FINAL AND
CONCLUSIVE AND NO OTHER OFFICIAL OR ANY COURT OF THE UNITED STATES
SHALL HAVE POWER OR JURISDICTION TO REVIEW ANY SUCH DECISIONS."  WHEN
VETERANS' BENEFITS LEGISLATION WAS FINALLY CONSOLIDATED IN THE
VETERANS' BENEFITS ACT OF 1957, 71 STAT. 92, THE NO-REVIEW CLAUSE WAS
LEFT SUBSTANTIALLY UNALTERED: 

"(DECISIONS OF THE ADMINISTRATOR ON ANY QUESTION OF LAW OR FACT
CONCERNING A CLAIM FOR BENEFITS OR PAYMENTS UNDER ANY LAW ADMINISTERED
BY THE VETERANS' ADMINISTRATION SHALL BE FINAL AND CONCLUSIVE AND NO
OTHER OFFICIAL OR ANY COURT OF THE UNITED STATES SHALL HAVE POWER OR
JURISDICTION TO REVIEW ANY SUCH DECISION." 

/10/  THE ONLY DISCUSSION OF 5 OF THE ECONOMY ACT OF 1933 WAS IN THE
SENATE, WHERE IT WAS STATED THAT 5 "GIVES TO THE VETERANS'
ADMINISTRATION ONLY SUCH AUTHORITY AS THE ADMINISTRATION NOW HAS."  77
CONG. REC. 254 (1933). 

THE 1940 ACT RECEIVED LITTLE MORE DISCUSSION.  HOWEVER, SENATOR
GEORGE REMARKED OF THE NO-REVIEW CLAUSE:  "(THE BILL ONLY CONFIRMS WHAT
HAS BEEN THE ACCEPTED BELIEF AND CONVICTION, THAT WITH RESPECT TO ANY
PENSION, (OR) GRATUITY, ...  THERE IS NO RIGHT OF ACTION IN THE
COURTS.... IT IS NOT SO MUCH A LIMITATION AS A RESTATEMENT OF WHAT IS
BELIEVED TO BE THE LAW UPON THE QUESTION."  86 CONG. REC. 13383
(1940).  THE HOUSE DEBATE INDICATES THAT THE NO-REVIEW CLAUSE "IS
DESIRABLE FOR THE PURPOSE OF UNIFORMITY AND TO MAKE CLEAR WHAT IS
BELIEVED TO BE THE INTENTION OF CONGRESS THAT THE VARIOUS LAWS SHALL BE
UNIFORMLY ADMINISTERED IN ACCORDANCE WITH THE LIBERAL POLICIES
GOVERNING THE VETERANS' ADMINISTRATION."  ID., AT 13491. 

THE LEGISLATIVE HISTORY ATTENDING THE 1957 AMENDMENT TO THE NO
REVIEW CLAUSE IS SIMILARLY UNINSTRUCTIVE, INDICATING ONLY THAT THE
CHANGE WAS ONE OF CONSOLIDATION.  SEE H. R. REP. NO. 279, 85TH CONG.,
1ST SESS., 1 (1957); S. REP. NO. 332, 85TH CONG., 1ST SESS., 1 (1957). 
SEE DAVIS, VETERANS' BENEFITS, JUDICIAL REVIEW, AND THE CONSTITUTIONAL
PROBLEMS OF "POSITIVE" GOVERNMENT, 39 IND. L.J. 181, 188 - 189 (1964);
COMMENT, JUDICIAL REVIEW AND THE GOVERNMENTAL RECOVERY OF VETERANS'
BENEFITS, 118 U. PA. L. REV. 288, 291 - 292 (1969). 

/11/  THERE IS FOR CONSIDERATION THE ADDED EXPENSE TO THE GOVERNMENT
NOT ONLY WITH RESPECT TO THE ADDED BURDEN UPON THE COURTS, BUT THE
ADMINISTRATIVE EXPENSE OF DEFENDING THE SUITS."  HEARING ON H. R. 360,
478, 2442 AND 6777 BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
VETERANS' AFFAIRS, 82D CONG., 2D SESS., 1963 (1952). 

/12/ " IN THE ADJUDICATION OF COMPENSATION AND PENSION CLAIMS A WIDE
VARIETY OF MEDICAL, LEGAL, AND OTHER TECHNICAL QUESTIONS CONSTANTLY
ARISE WHICH REQUIRE THE STUDY OF EXPERT EXAMINERS OF CONSIDERABLE
TRAINING AND EXPERIENCE, AND WHICH ARE NOT READILY SUSCEPTIBLE OF
JUDICIAL STANDARDIZATION.  AMONG OTHER QUESTIONS TO BE DETERMINED IN
THE ADJUDICATION OF SUCH CLAIMS ARE THOSE INVOLVING LENGTH AND
CHARACTER OF SERVICE, ORIGIN OF DISABILITIES, COMPLEX RATING SCHEDULES,
A MULTIPLICITY OF MEDICAL AND PHYSICAL PHENOMENA FOR CONSIDERATION
INTERCURRENTLY WITH SUCH SCHEDULES, AND THE APPLICATION OF ESTABLISHED
NORMS TO THE PECULIARITIES OF THE PARTICULAR CASE.  THESE MATTERS HAVE
NOT BEEN CONSIDERED BY THE CONGRESS OR THE COURTS APPROPRIATE FOR
JUDICIAL DETERMINATION BUT HAVE BEEN REGARDED AS APT SUBJECTS FOR THE
PURELY ADMINISTRATIVE PROCEDURE.  DUE TO THE NATURE AND COMPLEXITY OF
THE DETERMINATIONS TO BE MADE, IT IS INEVITABLE THAT THE DECISIONS OF
THE COURTS IN SUCH MATTERS WOULD LACK UNIFORMITY.  IT CANNOT BE
EXPECTED THAT THE DECISIONS OF THE MANY COURTS WOULD BE BASED ON THE
UNIFORM APPLICATION OF PRINCIPLES AS IS NOW DONE BY THE VETERANS'
ADMINISTRATION THROUGH ITS SYSTEM OF COORDINATION BY THE CENTRAL OFFICE
AND BY ITS CENTRALIZED BOARD OF VETERANS'  APPEALS."  HEARING, SUPRA,
N. 11, AT 1962 - 1963.     /13/  IN AN EFFORT TO ENHANCE THE
ATTRACTIVENESS OF SERVICE IN THE PUBLIC HEALTH SERVICE AND THE NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, THE ACT ALSO MAKES EDUCATIONAL
BENEFITS AVAILABLE TO COMMISSIONED OFFICERS IN THOSE SERVICES.  38
U.S.C. 101 (21), 1652 (A)(3).  OFFICERS IN THOSE SERVICES ARE USUALLY
SPECIALISTS IN VARIOUS FIELDS OF SCIENCE AND POSSESS A HIGH DEGREE OF
TECHNICAL EXPERTISE.  SEE 42 CFR 21.11, 21.25 - .31, 21,41 - .42
(1972); 33 U.S.C. 883A-883B.  APPELLEE DOES NOT ARGUE THAT HE AND HIS
CLASS, AND THE OFFICERS OF THOSE SERVICES, ARE SO SIMILARLY
CIRCUMSTANCED THAT THE DIFFERENT TREATMENT THE ACT ACCORDS THE TWO
GROUPS CONSTITUES A DENIAL OF EQUAL PROTECTION. 

/14/  APPELLEE ARGUES THAT THE STATUTORY CLASSIFICATION SHOULD BE
SUBJECT TO STRICT SCRUTINY AND UPHELD ONLY IF A COMPELLING GOVERNMENTAL
JUSTIFICATION IS DEMONSTRATED BECAUSE (1) THE CHALLENGED CLASSIFICATION
INTERFERES WITH THE FUNDAMENTAL CONSTITUTIONAL RIGHT TO THE FREE
EXERCISE OF RELIGION, AND (2) I-O CONSCIENTIOUS OBJECTORS ARE A SUSPECT
CLASS DESERVING SPECIAL JUDICIAL PROTECTION.  WE FIND NO MERIT IN
EITHER CONTENTION.  UNQUESTIONABLY, THE FREE EXERCISE OF RELIGION IS A
FUNDAMENTAL CONSTITUTIONAL RIGHT.  HOWEVER, SINCE WE HOLD IN PART III,
INFRA, THAT THE ACT DOES NOT VIOLATE APPELLEE'S RIGHT OF FREE EXERCISE
OF RELIGION, WE HAVE NO OCCASION TO APPLY TO THE CHALLENGED
CLASSIFICATION A STANDARD OF SCRUTINY STRICTER THAN THE TRADITIONAL
RATIONAL-BASIS TEST.  WITH RESPECT TO APPELLEE'S SECOND CONTENTION, WE
FIND THE TRADITIONAL INDICIA OF SUSPECTEDNESS LACKING IN THIS CASE. 
THE CLASS DOES NOT POSSESS AN "IMMUTABLE CHARACTERISTIC DETERMINED
SOLELY BY THE ACCIDENT OF BIRTH," FRONTIERO V. RICHARDSON, 411 U.S., AT
686, NOR IS THE CLASS "SADDLED WITH SUCH DISABILITIES, OR SUBJECTED TO
SUCH A HISTORY OF PURPOSEFUL UNEQUAL TREATMENT, OR RELEGATED TO SUCH A
POSITION OF POLITICAL POWERLESSNESS AS TO COMMAND EXTRAORDINARY
PROTECTION FROM THE MAJORITARIAN POLITICAL PROCESS," SAN ANTONIO SCHOOL
DISTRICT V. RODRIGUEZ, 411 U.S. 1, 28 (1973).  AS THE DISTRICT COURT
OBSERVED:  " CONGRESS, WHICH IS UNDER NO OBLIGATION TO CARVE OUT THE
CONSCIENTIOUS OBJECTOR EXEMPTION FOR MILITARY TRAINING, SEE UNITED
STATES V. MACINTOSH, 1931, 283 U.S. 605, 624; GILLETTE V. UNITED
STATES, 1971, 401 U.S. 437, 457, 461 N. 23, HAS NEVERTHELESS DONE SO.
PERHAPS THIS EXEMPTION FROM MILITARY TRAINING REFLECTS A CONGRESSIONAL
JUDGMENT THAT CONSCIENTIOUS OBJECTORS SIMPLY COULD NOT BE TRAINED FOR
DUTY; BUT IT IS EQUALLY PLAUSIBLE THAT THE EXEMPTION REFLECTS A
CONGRESSIONAL DETERMINATION TO RESPECT INDIVIDUAL CONSCIENCE.  SEE
UNITED STATES V. MACINTOSH, SUPRA, 283 U.S. AT 633 ((HUGHES), C. J.,
DISSENTING).  GIVEN THE SOLICITOUS REGARD THAT CONGRESS HAS MANIFESTED
FOR CONSCIENTIOUS OBJECTORS, IT WOULD SEEM PRESUMPTUOUS OF A COURT TO
SUBJECT THE EDUCATION BENEFITS LEGISLATION TO STRICT SCRUTINY ON THE
BASIS OF THE 'SUSPECT CLASSIFICATION' THEORY, WHOSE UNDERLYING
RATIONALE IS THAT, WHERE LEGISLATION AFFECTS DISCRETE AND INSULAR
MINORITIES, THE PRESUMPTION OF CONSTITUTIONALITY FADES BECAUSE
TRADITIONAL POLITICAL PROCESS MAY HAVE BROKEN DOWN."  352 F. SUPP., AT
855. 

/15/  TESTIMONY AND STATEMENTS AT A HEARING ON THE PROPOSED
VETERANS' READJUSTMENT BENEFITS ACT OF 1966, BEFORE THE SENATE
SUBCOMMITTEE ON VETERANS OF MILITARY SERVICE.  FOR EXAMPLE, SENATOR
YARBROUGH, CHAIRMAN OF THE SUBCOMMITTEE AND AUTHOR OF THE ACT, REMARKED
THAT "(THE BILL I HAVE INTRODUCED PROVIDES AN OPPORTUNITY TO
DEMONSTRATE THAT WE, AS A NATION, DO RECOGNIZE THE EXTREME UNIQUE
PERSONAL SACRIFICES EXTRACTED FROM OUR COLD WAR VETERANS BY THEIR
MILITARY SERVICE."  " THEIR NEED IS NOT BASED ON THE TYPE OF MILITARY
DUTY THEY PERFORMED, BUT ON THE LACK OF OPPORTUNITY TO READJUST BACK TO
CIVILIAN LIFE AFTER HAVING BEEN REMOVED FOR 2 TO 4 YEARS."  HEARINGS ON
S. 9 BEFORE THE SUBCOMMITTEE ON VETERANS'  AFFAIRS OF THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE, 89TH CONG., 1ST SESS., 6, 8
(1965).  IN TESTIMONY BEFORE THE SUBCOMMITTEE SENATOR MONDALE STATED
THAT "(THE PREVIOUS GI BILLS WERE NOT DESIGNED TO REWARD VETERANS FOR
THE BATTLE RISKS THEY RAN, BUT WERE DESIGNED TO ASSIST THEM IN
READJUSTING TO CIVILIAN LIFE AND IN CATCHING UP TO THOSE WHOSE LIVES
WERE NOT DISRUPTED BY MILITARY SERVICE.  AND THAT IS WHAT THE COLD WAR
GI BILL IS INTENDED TO DO."  ID., AT 152. 

/16/  TITLE 50 U.S.C. APP. 456 (J) PROVIDES THAT I-A-O CONSCIENTIOUS
OBJECTORS MAY BE INDUCTED INTO THE ARMED FORCES AND ASSIGNED TO
NONCOMBATANT SERVICE.  THUS, I-A-O CONSCIENTIOUS OBJECTORS PERFORM
"ACTIVE DUTY" AS DEFINED IN 38 U.S.C. 101 (21) AND ARE THEREFORE
ELIGIBLE UNDER 38 U.S.C. 1652 (A)(1), 1661 (A) TO RECEIVE VETERANS'
EDUCATIONAL BENEFITS. 

/17/  THE LOWER CLASSIFICATIONS ARE LISTED AND DEFINED IN 32 CFR
1622.1 - 1623.2 (1973). 

/18/  APPELLEE ALSO CONTENDS THAT THE ACT VIOLATES HIS FIFTH
AMENDMENT DUE PROCESS RIGHTS BECAUSE, "(THE EXCLUSION OF I-O
CONSCIENTIOUS OBJECTORS FROM THE VITAL ASSISTANCE PROVIDED BY THE ACT'S
EDUCATIONAL PROGRAM IS THE PRODUCT OF A VINDICTIVE AND HARSH POLICY"
WHOSE "PURPOSE IS CLEARLY TO PUNISH I-O CONSCIENTIOUS OBJECTORS FOR
ADHERING TO THEIR BELIEFS."  BRIEF FOR APPELLEE 20, 51.  TO BE SURE, IF
THAT WERE THE PURPOSE OF THE EXCLUSION OF I-O CONSCIENTIOUS OBJECTORS
FROM THE BENEFITS OF THE ACT, THE CLASSIFICATION WOULD BE
UNCONSTITUTIONAL, "(FOR IF THE CONSTITUTIONAL CONCEPTION OF 'EQUAL
PROTECTION OF THE LAWS' MEANS ANYTHING, IT MUST AT THE VERY LEAST MEAN
THAT A BARE CONGRESSIONAL DESIRE TO HARM A POLITICALLY UNPOPULAR GROUP
CANNOT CONSTITUTE A LEGITIMATE GOVERNMENTAL INTEREST."  U.S. DEPT. OF
AGRICULTURE V. MORENO, 413 U.S. 528, 534 (1973).  HOWEVER, WE HAVE NOT
BEEN CITED TO, NOR HAS OUR OWN RESEARCH DISCOVERED, A SINGLE REFERENCE
IN THE LEGISLATIVE HISTORY OF THE ACT TO SUPPORT APPELLEE'S CLAIM.  WE
THEREFORE FIND APPELLEE'S CLAIM WHOLLY LACKING IN MERIT. 

/19/  BY ENACTING LEGISLATION EXEMPTING CONCIENTIOUS OBJECTORS FROM
THE WELL-RECOGNIZED AND PECULIAR RIGORS OF MILITARY SERVICE, CONGRESS
HAS BESTOWED RELATIVE BENEFITS UPON CONSCIENTIOUS OBJECTORS BY
PERMITTING THEM TO PERFORM THEIR ALTERNATIVE SERVICE OBLIGATION AS
CIVILIANS.  THUS, CONGRESS' DECISION TO GRANT EDUCATIONAL BRNEFITS TO
MILITARY SERVICEMEN MIGHT ARGUABLY BE VIEWED AS AN ATTEMPT TO EQUALIZE
THE BURDENS OF MILITARY SERVICE AND ALTERNATIVE CIVILIAN SERVICE,
RATHER THAN AN EFFORT BY CONGRESS TO PLACE A RELATIVE BURDEN UPON A
CONSCIENTIOUS OBJECTOR'S FREE EXERCISE OF RELIGION.  SEE CLARK,
GUIDELINES FOR THE FREE EXERCISE CLAUSE, 83 HARV. L. REV. 327, 349
(1969). 

MR. JUSTICE DOUGLAS, DISSENTING. 

IN MY DISSENT APPLICABLE TO BRAUNFIELD V. BROWN, 366 U.S. 599, I
EXPRESSED THE VIEW THAT PENNSYLVANIA'S SUNDAY CLOSING LAW WAS
UNCONSTITUTIONAL AS APPLIED TO SABBATARIANS, SEE 366 U.S., AT 561, 575,
577.  THE STATE IMPOSED A PENALTY ON A SABBATARIAN FOR KEEPING HIS SHOP
OPEN ON THE DAY WHICH WAS THE SABBATH OF THE CHRISTIAN MAJORITY; AND
THAT SEEMED TO ME TO EXACT AN IMPERMISSIBLE PRICE FOR THE FREE EXERCISE
OF THE SABBATARIAN'S RELIGION.  INDEED, IN THAT CASE THE SABBATARIAN
WOULD BE UNABLE TO CONTINUE IN BUSINESS IF HE COULD NOT STAY OPEN ON
SUNDAY AND WOULD LOSE HIS CAPITAL INVESTMENT.  SEE ID., AT 611. 

IN GIROUARD V. UNITED STATES, 328 U.S. 61, WE HELD, IN OVERRULING
UNITED STATES V. SCHWIMMER, 279 U.S. 644, THAT THE WORDS OF THE OATH
PRESCRIBED BY CONGRESS FOR NATURALIZATION--"WILL SUPPORT AND DEFEND THE
CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AGAINST ALL
ENEMIES, FOREIGN AND DOMESTIC"--SHOULD NOT BE READ AS REQUIRING THE
BEARING OF ARMS, AS THERE IS ROOM UNDER OUR CONSTITUTION FOR THE
SUPPORT AND DEFENSE OF THE NATION IN TIMES OF GREAT PERIL BY THOSE
WHOSE RELIGIOUS SCRUPLES BAR THEM FROM SHOULDERING ARMS.  WE SAID:
"THE EFFORT OF WAR IS INDIVISIBLE; AND THOSE WHOSE RELIGIOUS SCRUPLES
PREVENT THEM FROM KILLING ARE NO LESS PATRIOTS THAN THOSE WHOSE SPECIAL
TRAITS OR HANDICAPS RESULT IN THEIR ASSIGNMENT TO DUTIES FAR BEHIND THE
FIGHTING FRONT.  EACH IS MAKING THE UTMOST CONTRIBUTION ACCORDING TO
HIS CAPACITY.  THE FACT THAT HIS ROLE MAY BE LIMITED BY RELIGIOUS
CONVICTIONS RATHER THAN BY PHYSICAL CHARACTERISTICS HAS NO NECESSARY
BEARING ON HIS ATTACHMENT TO HIS COUNTRY OR ON HIS WILLINGNESS TO
SUPPORT AND DEFEND IT TO HIS UTMOST."  328 U.S., AT 64 - 65. 

CLOSER IN POINT TO THE PRESENT PROBLEM IS SHERBERT V. VERNER, 374
U.S. 398, WHERE A SEVENTH DAY ADVENTIST WAS DENIED UNEMPLOYMENT
BENEFITS BY THE STATE BECAUSE SHE WOULD NOT WORK ON SATURDAY, THE
SABBATH DAY OF HER FAITH.  WE HELD THAT THAT DISQUALIFICATION FOR
UNEMPLOYMENT BENEFITS IMPOSED AN IMPERMISSIBLE BURDEN ON THE FREE
EXERCISE OF HER RELIGION, SAYING: " HERE NOT ONLY IS IT APPARENT THAT
APPELLANT'S DECLARED INELIGIBILITY FOR BENEFITS DERIVES SOLELY FROM THE
PRACTICE OF HER RELIGION, BUT THE PRESSURE UPON HER TO (FORGO) THAT
PRACTICE IS UNMISTAKABLE.  THE RULING FORCES HER TO CHOOSE BETWEEN
FOLLOWING THE PRECEPTS OF HER RELIGION AND FORFEITING BENEFITS, ON THE
ONE HAND, AND ABANDONING ONE OF THE PRECEPTS OF HER RELIGION IN ORDER
TO ACCEPT WORK, ON THE OTHER HAND.  GOVERNMENTAL IMPOSITION OF SUCH A
CHOICE PUTS THE SAME KIND OF BURDEN UPON THE FREE EXERCISE OF RELIGION
AS WOULD A FINE IMPOSED AGAINST APPELLANT FOR HER SATURDAY WORSHIP." 
ID., AT 404. 

AND WE FOUND NO "COMPELLING" STATE INTEREST TO JUSTIFY THE STATE'S
INFRINGEMENT OF ONE'S RELIGIOUS LIBERTY IN THAT MANNER.  ID., AT 406 -
408. 

IN WISCONSIN V. YODER, 406 U.S. 205, WE HELD THAT WISCONSIN'S
COMPULSORY SCHOOL ATTENDANCE LAW AS APPLIED TO AMISH CHILDREN WOULD
GRAVELY IMPAIR THE FREE EXERCISE OF THEIR RELIGIOUS BELIEFS. 

THE DISTRICT COURT IN THE PRESENT CASE SAID THAT THE PENALTY WHICH
THE PRESENT ACT PLACES ON CONSCIENTIOUS OBJECTORS IS OF A LESSER "ORDER
OR MAGNITUDE"  /1/  THAN THAT WHICH HAS BEEN UPHELD IN PAST CASES.  352
F.SUPP.  848, 860. 

THAT IS TRUE; YET THE DISCRIMINATION AGAINST A MAN WITH RELIGIOUS
SCRUPLES SEEMS APPARENT.  THE PRESENT ACT DERIVES FROM A HOUSE BILL
THAT HAD AS ITS PURPOSE SOLELY AN EDUCATION PROGRAM TO "HELP A VETERAN
TO FOLLOW THE EDUCATIONAL PLAN THAT HE MIGHT HAVE ADOPTED HAD HE NEVER
ENTERED THE ARMED FORCES."  H.R.REP.  NO. 1258, 89TH CONG., 2D SESS.,
5.  FULL BENEFITS ARE AVAILABLE TO OCCUPANTS OF SAFE DESK JOBS AND THE
THOUSANDS OF VETERANS WHO PERFORMED CIVILIAN TYPE DUTIES AT HOME AND
FOR WHOM THE RIGORS OF THE "WAR" WERE FAR FROM "TOTALLY DISRUPTIVE," TO
USE THE GOVERNMENT'S PHRASE.  THE BENEFITS ARE PROVIDED, THOUGH THE
DRAFTEE DID NOT SERVE OVERSEAS BUT LIVED WITH HIS FAMILY IN A CIVILIAN
COMMUNITY AND WORKED FROM NINE UNTIL FIVE AS A FILE CLERK ON A MILITARY
BASE OR ATTENDED COLLEGE COURSES IN HIS OFF-DUTY HOURS.  NO CONDITION
OF HAZARDOUS DUTY WAS ATTACHED TO THE EDUCATIONAL ASSISTANCE PROGRAM. 
AS SENATOR YARBOROUGH SAID, /2/ THE BENEFITS WOULD ACCRUE EVEN TO THOSE
WHO NEVER SERVED OVERSEAS, BECAUSE THEIR "EDUCATIONAL PROGRESS AND
OPPORTUNITY" "(HAVE) BEEN IMPAIRED IN JUST AS SERIOUS AND DAMAGING A
FASHION AS IF THEY HAD SERVED ON DISTANT SHORES.  THEIR EDUCATIONAL
NEEDS ARE NO LESS THAN THOSE OF THEIR COMRADES WHO SERVED ABROAD." 

BUT THE LINE DRAWN IN THE ACT IS BETWEEN CLASS I-O CONSCIENTIOUS
OBJECTORS WHO PERFORMED ALTERNATIVE CIVILIAN SERVICE AND ALL OTHER
DRAFTEES.  SUCH CONSCIENTIOUS OBJECTORS GET NO EDUCATIONAL BENEFITS
WHATSOEVER.  IT IS, INDEED, DEMEANING TO THOSE WHO HAVE RELIGIOUS
SCRUPLES AGAINST SHOULDERING ARMS TO SUGGEST, AS THE GOVERNMENT DOES,
THAT THOSE RELIGIOUS SCRUPLES MUST BE SUSCEPTIBLE OF COMPROMISE BEFORE
THEY WILL BE PROTECTED.  THE URGE TO FORGO RELIGIOUS SCRUPLES TO GAIN A
MONETARY ADVANTAGE WOULD CERTAINLY BE A BURDEN ON THE FREE EXERCISE
CLAUSE IN CASES OF THOSE WHO WERE SPIRITUALLY WEAK.  BUT THAT WAS NOT
THE TEST IN SHERBERT OR GIROUARD.  WE DEAL WITH PEOPLE WHOSE RELIGIOUS
SCRUPLES ARE UNWAVERING.  THOSE WHO WOULD DIE AT THE STAKE FOR THEIR
RELIGIOUS SCRUPLES MAY NOT CONSTITUTIONALLY BE PENALIZED BY THE
GOVERNMENT BY THE EXACTION OF PENALTIES BECAUSE OF THEIR FREE EXERCISE
OF RELIGION.  WHERE GOVERNMENT PLACES A PRICE ON THE FREE EXERCISE OF
ONE'S RELIGIOUS SCRUPLES IT CROSSES THE FORBIDDEN LINE.  /3/  THE ISSUE
OF "COERCIVE EFFECTS," TO USE ANOTHER GOVERNMENT PHRASE, IS
IRRELEVANT.  GOVERNMENT, AS I READ THE CONSTITUTION AND THE BILL OF
RIGHTS, MAY NOT PLACE A PENALTY ON ANYONE FOR ASSERTING HIS RELIGIOUS
SCRUPLES.  THAT IS THE NUB OF THE PRESENT CASE AND THE REASON WHY THE
JUDGMENT BELOW SHOULD BE AFFIRMED. 

/1/  FIRST, THE DENIAL IS FELT, NOT IMMEDIATELY, AS IN SHERBERT, BUT
AT A POINT IN TIME SUBSTANTIALLY REMOVED FROM THAT WHEN A PROSPECTIVE
CONSCIENTIOUS OBJECTOR MUST CONSIDER WHETHER TO APPLY FOR AN EXEMPTION
FROM MILTARY SERVICE.  SECONDLY, THE DENIAL DOES NOT PRODUCE A POSITIVE
ECONOMIC INJURY OF THE SORT EFFECTED BY A SUNDAY CLOSING LAW OR
INELIGIBILITY FOR UNEMPLOYMENT PAYMENTS.  CONSIDERING THESE FACTORS,
THE COURT DOUBTS THAT THE DENIAL TENDS TO MAKE A PROSPECTIVE ALTERNATE
SERVICE PERFORMER CHOOSE BETWEEN FOLLOWING AND NOT FOLLOWING THE
DICTATES OF HIS CONSCIENCE."  352 F.SUPP.  848, 860. 

/2/  HEARINGS ON LEGISLATION TO PROVIDE GI BENEFITS FOR POST-KOREAN
VETERANS BEFORE THE HOUSE COMMITTEE ON VETERANS' AFFAIRS, 89TH CONG.,
1ST SESS., 2899. 

/3/  GILLETTE V. UNITED STATES, 401 U.S. 437, IS IRRELEVANT TO THE
PRESENT CASE.  THERE WE WERE CONCERNED WITH WHETHER THE PETITIONERS
WERE VALIDLY EXCLUDED FROM CLASSIFICATION AS CONSCIENTIOUS OBJECTORS. 
HERE THE QUESTION IS WHETHER THE GOVERNMENT CAN PENALIZE THE EXERCISE
OF CONSCIENCE IT CONCEDES IS VALID AND WHICH EXEMPTS THESE DRAFTEES
FROM MILITARY SERVICE.  MOREOVER, IN GILETTE WE RELIED UPON THE FACT
THAT THE GOVERNMENT'S CLASSIFICATION WAS RELIGIOUSLY NEUTRAL, ID., AT
451, IMPOSED ONLY "INCIDENTAL BURDENS"  ON THE EXERCISE OF CONSCIENCE,
AND WAS "STRICTLY JUSTIFIED BY SUBSTANTIAL GOVERNMENTAL INTERESTS THAT
RELATE DIRECTLY TO THE VERY IMPACTS QUESTIONED," ID., AT 462.  HERE THE
CLASSIFICATION IS NOT NEUTRAL BUT EXCLUDES ONLY THOSE CONCEDED BY THE
GOVERNMENT TO HAVE RELIGIOUS-BASED OBJECTIONS TO WAR; AND THUS THE
BURDEN IT IMPOSES ON RELIGIOUS BELIEFS IS NOT "INCIDENTAL."  AND HERE
WE HAVE NO GOVERNMENTAL INTEREST EVEN APPROACHING THAT FOUND IN
GILLETTE--, THE DANGER THAT, BECAUSE SELECTIVE OBJECTION TO WAR COULD
NOT BE ADMINISTERED FAIRLY, OUR CITIZENS WOULD CONCLUDE THAT "THOSE WHO
GO TO WAR ARE CHOSEN UNFAIRLY OR CAPRICIOUSLY (RESULTING IN) A MOOD OF
BITTERNESS AND CYNICISM (THAT) MIGHT CORRODE THE...VALUES OF WILLING
PERFORMANCE OF A CITIZEN'S DUTIES THAT ARE THE VERY HEART OF FREE
GOVERNMENT."  ID., AT 460.  THE ONLY GOVERNMENTAL INTEREST HERE IS THE
FINANCIAL ONE OF DENYING THIS APPELLEE AND HIS CLASS EDUCATIONAL
BENEFITS.  THAT IN MY VIEW IS AN INVIDIOUS DISCRIMINATION AND A PENALTY
ON THOSE WHO ASSERT THEIR RELIGIOUS SCRUPLES AGAINST JOINING THE ARMED
SERVICES WHICH SHOULDER ARMS. 

GERALD P. NORTON ARGUED THE CAUSE FOR APPELLANTS.  ON THE BRIEF WERE
SOLICITOR GENERAL BORK, ACTING ASSISTANT ATTORNEY GENERAL JAFFE,
HARRIET S. SHAPIRO, MORTON HOLLANDER, AND WILLIAM KANTER. 

MICHAEL DAVID ROSENBERG ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON
THE BRIEF WERE CHARLES R. NESSON AND MATTHEW FEINBERG. 

DONALD S. BURRIS FILED A BRIEF FOR THE NATIONAL INTERRELIGIOUS
SERVICE BOARD FOR CONSCIENTIOUS OBJECTORS AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :



HERNANDEZ V. VETERAN'S ADMINISTRATION, 415 U.S. 391 


       HERNANDEZ ET AL. V. VETERANS' ADMINISTRATION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 72 - 700.  ARGUED DECEMBER 11, 1973--DECIDED MARCH 4,

           1974; 467 F.2D 479, VACATED AND REMANDED. 


    PETITIONERS, WHO WERE DENIED EDUCATIONAL BENEFITS UNDER THE

  VETERANS'  READJUSTMENT BENEFITS ACT OF 1966 BECAUSE, AS

  CONSCIENTIOUS OBJECTORS EXEMPT FROM THE MILITARY SERVICE WHO

  PERFORMED ALTERNATIVE CIVILIAN SERVICE, THEY WERE INELIGIBLE FOR

  SUCH BENEFITS, BROUGHT ACTIONS CHALLENGING THE CONSTITUTIONALITY,

  ON FIRST AND FIFTH AMENDMENT GROUNDS, OF THE PROVISIONS OF THE

  ACT MAKING THEM INELIGIBLE.  THE DISTRICT COURT DISMISSED THE

  ACTIONS ON THE GROUNDS THAT JURISDICTION WAS BARRED BY 38 U.S.C.

  211 (A) AND PETITIONERS' CONSTITUTIONAL CLAIMS WERE INSUBSTANTIAL

  AND WITHOUT MERIT.  THE COURT OF APPEALS AFFIRMED ON THE BASIS
OF

  THE JURISDICTIONAL BAR.  HELD:  SECTION 211 (A) DOES NOT BAR

  JUDICIAL CONSIDERATION OF CONSTITUTIONAL CHALLENGES TO VETERANS'

  BENEFITS LEGISLATION.  JOHNSON V. ROBISON, ANTE, P. 361.  P.

  393. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, AND

REHNQUIST, JJ., JOINED.  DOUGLAS, J., CONCURS IN THE RESULT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, LIKE THE APPELLEE AND HIS CLASS IN JOHNSON V. ROBISON,
ANTE, P. 361, ARE CLASS I-O CONSCIENTIOUS OBJECTORS WHO, UPON
COMPLETION OF ALTERNATIVE CIVILIAN SERVICE PURSUANT TO 6 (J) OF THE
MILITARY SELECTIVE SERVICE ACT, 50 U.S.C. APP. 456 (J), AND THE
GOVERNING REGULATIONS OF THE SELECTIVE SERVICE SYSTEM, 32 CFR, PART
1660, APPLIED FOR EDUCATIONAL BENEFITS PROVIDED BY THE VETERANS'
READJUSTMENT BENEFITS ACT OF 1966.  THE VETERANS' ADMINISTRATION DENIED
PETITIONERS' APPLICATION FOR THE REASONS UPON WHICH APPELLEE ROBISON'S
REQUEST WAS DENIED, I.E., BECAUSE A CLASS I-O CONSCIENTIOUS OBJECTOR
WHO HAS PERFORMED ALTERNATIVE CIVILIAN SERVICE DOES NOT QUALIFY UNDER
38 U.S.C. 1652 (A)(1) AS A "VETERAN WHO..., SERVED ON ACTIVE DUTY"
(DEFINED IN 38 U.S.C. 101 (21) AS "FULL-TIME DUTY IN THE ARMED
FORCES"), AND IS THEREFORE NOT AN "ELIGIBLE VETERAN" ENTITLED UNDER 38
U.S.C. 1661 (A) TO VETERANS' EDUCATIONAL BENEFITS PROVIDED BY THE
VETERANS' READJUSTMENT BENEFITS ACT OF 1966. 

ALLEGING THAT THOSE SECTIONS OF THE 1966 ACT DISCRIMINATE AGAINST
CONSCIENTIOUS OBJECTORS IN VIOLATION OF THE FIFTH AMENDMENT, AND
INFRINGE THE RELIGION CLAUSES OF THE FIRST AMENDMENT, PETITIONERS FILED
TWO ACTIONS SEEKING DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF AND
REQUESTING THE CONVENING OF A THREE-JUDGE DISTRICT COURT.  THE DISTRICT
COURT CONSOLIDATED THE TWO CASES AND GRANTED THE GOVERNMENT'S MOTION TO
DISMISS ON THE GROUNDS THAT "PLAINTIFFS' REQUESTS FOR AFFIRMATIVE
RELIEF ARE NOT WITHIN THE JURISDICTION OF THIS COURT DUE TO THE MANDATE
OF 38 U.S.C. 211 (A)...(AND) THE PLAINTIFFS' CHALLENGE..., BASED ON
ALLEGED VIOLATIONS OF THE FIFTH AND FIRST AMENDMENTS TO THE UNITED
STATES CONSTITUTION ARE (SIC) INSUBSTANTIAL AND WITHOUT MERIT."  339
F.SUPP.  913, 916 (1972).  NOTWITHSTANDING THE DISTRICT COURT'S
DISMISSAL OF PETITIONERS' CONSTITUTIONAL CLAIMS ON THE GROUND OF
INSUBSTANTIALITY, THE COURT OF APPEALS, AS WE READ THAT COURT'S
OPINION, CONSTRUED THE ORDER OF DISMISSAL AS BASED SOLELY UPON THE
JURISDICTIONAL BAR OF 211 (A), AND AFFIRMED THE DISTRICT COURT ON THAT
GROUND.  467 F.2D 479 (1972).  WE GRANTED CERTIORARI AND SET THE CASE
FOR ORAL ARGUMENT WITH JOHNSON V. ROBISON, ANTE, P. 361.  411 U.S. 981
(1973). 

WE HAVE HELD TODAY IN JOHNSON V. ROBISON THAT 211 (A) DOES NOT BAR
JUDICIAL CONSIDERATION OF CONSTITUTIONAL CHALLENGES TO VETERANS'
BENEFITS LEGISLATION.  ACCORDINGLY, THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH OUR OPINION IN JOHNSON V. ROBISON. 

              IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT FOR THE REASONS STATED IN
HIS DISSENTING OPINION IN JOHNSON V. ROBISON, ANTE, P. 386. 

JACK R. PETRANKER, PRO HAC VICE, AND LAWRENCE L. CURTICE ARGUED THE
CAUSE FOR PETITIONERS.  WITH THEM ON THE BRIEFS WERE STEPHEN V. BOMSE
AND CHARLES C. MARSON. 

GERALD P. NORTON ARGUED THE CAUSE FOR RESPONDENTS.  ON THE BRIEF
WERE SOLICITOR GENERAL BORK, ACTING ASSISTANT ATTORNEY GENERAL JAFFE,
HARRIET S. SHAPIR.  MORTON HOLLANDER, AND WILLIAM KANTER. 
..END :













TELEPROMPTER CORP. V. CBS, 415 U.S. 394 


       TELEPROMPTER CORP. ET AT. V. COLUMBIA BROADCASTING SYSTEM,

           INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 72 - 1628.  ARGUED JANUARY 7, 1974--DECIDED MARCH 4,

           1974;

        TOGETHER WITH NO. 72 - 1633, COLUMBIA BROADCASTING SYSTEM,

INC., ET AL. V. TELEPROMPTER CORP. ET AL., ALSO ON

    CERTIORARI TO THE SAME COURT. 

        476 F.2D 338, AFFIRMED IN PART, REVERSED IN PART, AND

           REMANDED TO DISTRICT COURT. 


    SEVERAL CREATORS AND PRODUCERS OF COPYRIGHTED TELEVISION

  PROGRAMS BROUGHT THIS SUIT CLAIMING THAT DEFENDANTS HAD INFRINGED

  THEIR COPYRIGHTS BY INTERCEPTING BROADCAST TRANSMISSIONS OF

  COPYRIGHTED MATERIAL AND RECHANNELING THESE PROGRAMS THROUGH

  VARIOUS COMMUNITY ANTENNA TELEVISION (CATV) SYSTEMS TO PAYING

  SUBSCRIBERS.  THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE

  GROUND THAT THE CAUSE OF ACTION WAS BARRED BY THIS COURT'S

  DECISION IN FORTNIGHTLY CORP. V. UNITED ARTISTS TELEVISION, 392

  U. S. 390.  ON APPEAL, THE COURT OF APPEALS DIVIDED CATV SYSTEMS

INTO TWO CATEGORIES FOR COPYRIGHT PURPOSES: (1) THOSE WHERE THE

  BROADCAST SIGNAL WAS ALREADY "IN THE COMMUNITY" SERVED BY THE

  SYSTEM, AND COULD BE RECEIVED THERE EITHER BY A COMMUNITY ANTENNA

  OR BY STANDARD ROOFTOP OR OTHER ANTENNAE BELONGING TO THE OWNERS

  OF TELEVISION SETS; AND (2) THOSE WHERE THE SYSTEMS IMPORTED

  "DISTANT SIGNALS" FROM BROADCASTERS SO FAR AWAY FROM THE CATV

  COMMUNITY THAT THE FOREGOING LOCAL FACILITIES COULD NOT NORMALLY

  RECEIVE ADEQUATE SIGNALS.  HOLDING THAT CATV RECEPTION AND

  RETRANSMISSION OF NON-"DISTANT" SIGNALS DO NOT CONSTITUTE

  COPYRIGHT INFRINGEMENT, BUT THAT RECEPTION AND RETRANSMISSION OF

 "DISTANT" SIGNALS AMOUNT TO A "PERFORMANCE" AND THUS CONSTITUTE

  COPYRIGHT INFRINGEMENT, THE COURT AFFIRMED AS TO THOSE SYSTEMS IN

  THE FIRST CATEGORY, BUT REVERSED AND REMANDED AS TO THE REMAINING

  SYSTEMS.  HELD: 

     1. THE DEVELOPMENT AND IMPLEMENTATION, SINCE THE FORTNIGHTLY

DECISION, OF NEW FUNCTIONS OF CATV SYSTEMS--PROGRAM ORIGINATION,

  SALE OF COMMERCIALS, AND INTERCONNECTION WITH OTHER CATV

  SYSTEMS--, EVEN THOUGH THEY MAY ALLOW THE SYSTEMS TO COMPETE MORE

  EFFECTIVELY WITH THE BROADCASTERS FOR THE TELEVISION MARKET, DO

  NOT CONVERT THE ENTIRE CATV OPERATION, REGARDLESS OF DISTANCE

  FROM THE BROADCASTING STATION, INTO A "BROADCAST FUNCTION," THUS

  SUBJECTING THE CATV OPERATORS TO COPYRIGHT INFRINGEMENT

  LIABILITY, BUT ARE EXTRANEOUS TO A DETERMINATION OF SUCH

  LIABILITY, SINCE IN NONE OF THESE FUNCTIONS IS THERE ANY NEXUS

  WITH THE CATV OPERATORS'  RECEPTION AND RECHANNELING OF THE

  BROADCASTERS' COPYRIGHTED MATERIALS.  PP. 402 - 405. 

     2. THE IMPORTATION OF "DISTANT" SIGNALS FROM ONE COMMUNITY
INTO

ANOTHER DOES NOT CONSTITUTE A "PERFORMANCE" UNDER THE COPYRIGHT

  ACT.  PP. 406 - 415. 

     (A) BY IMPORTING SIGNALS THAT COULD NOT NORMALLY BE RECEIVED

  WITH CURRENT TECHNOLOGY IN THE COMMUNITY IT SERVES, A CATV SYSTEM

  DOES NOT, FOR COPYRIGHT PURPOSES, ALTER THE FUNCTION IT PERFORMS

FOR ITS SUBSCRIBERS, AS THE RECEPTION AND RECHANNELING OF THESE

  SIGNALS FOR SIMULTANEOUS VIEWING IS ESSENTIALLY A VIEWER

  FUNCTION, IRRESPECTIVE OF THE DISTANCE BETWEEN THE BROADCASTING

  STATION AND THE ULTIMATE VIEWER.  P. 408. 

     (B) EVEN IN EXERCISING ITS LIMITED FREEDOM TO CHOOSE AMONG

  VARIOUS "DISTANT" BROADCASTING STATIONS, A CATV OPERATOR CANNOT

  BE VIEWED AS "SELECTING" BROADCAST SIGNALS, SINCE WHEN IT CHOOSES

  WHICH BROADCAST SIGNALS TO RECHANNEL, ITS CREATIVE FUNCTION IS

  THEN EXTINGUISHED AND IT THEREAFTER "SIMPLY CARRIES), WITHOUT

  EDITING, WHATEVER PROGRAMS (IT) RECEIVES)," FORTNIGHTLY CORP. V.

  UNITED ARTISTS TELEVISION, SUPRA, AT 400.  NOR DOES A CATV SYSTEM

IMPORTING "DISTANT" SIGNALS PROCURE AND PROPAGATE THEM TO THE

  PUBLIC, SINCE IT IS NOT ENGAGED IN CONVERTING THE SIGHTS AND

  SOUNDS OF AN EVENT OR A PROGRAM INTO ELECTRONIC SIGNALS AVAILABLE

  TO THE PUBLIC, THE SIGNALS IT RECEIVES AND RECHANNELS HAVING

  ALREADY BEEN "RELEASED TO THE PUBLIC" EVEN THOUGH NOT NORMALLY

  AVAILABLE TO THE SPECIFIC SEGMENT OF THE PUBLIC SERVED BY THE

  CATV SYSTEM.  PP. 409 - 410. 

     (C) THE FACT THAT THERE HAVE BEEN SHIFTS IN CURRENT BUSINESS

  AND COMMERCIAL RELATIONSHIPS IN THE COMMUNICATIONS INDUSTRY AS A

  RESULT OF THE CATV SYSTEMS' IMPORTATION OF "DISTANT"  SIGNALS,

  DOES NOT ENTAIL COPYRIGHT INFRINGEMENT LIABILITY, SINCE BY

  EXTENDING THE RANGE OF VIEWBILITY OF A BROADCAST PROGRAM, THE

  CATV SYSTEMS DO NOT INTERFERE IN ANY TRADITIONAL SENSE WITH THE

  COPYRIGHT HOLDERS' MEANS OF EXTRACTING RECOMPENSE FOR THEIR

  CREATIVITY OR LABOR FROM ADVERTISERS ON THE BASIS OF ALL VIEWERS

 WHO WATCH THE PARTICULAR PROGRAM.  PP. 410 - 414. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

 BRENNAN, WHITE, MARSHALL, POWELL, AND REHNQUIST, JJ., JOINED. 

  BACKMUN, J., FILED AN OPINION DISSENTING IN PART, POST, P. 415. 

  DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH BURGER, C.J.,

  JOINED, POST, P. 416. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT.  THE
PLAINTIFFS IN THIS LITIGATION, CREATORS AND PRODUCERS OF TELEVISED
PROGRAMS COPYRIGHTED UNDER THE PROVISIONS OF THE COPYRIGHT ACT OF 1909,
AS AMENDED, 17 U.S.C. 1 ET SEQ., COMMENCED SUIT IN 1964 IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, CLAIMING
THAT THE DEFENDANTS HAD INFRINGED THEIR COPYRIGHTS BY INTERCEPTING
BROADCAST TRANSMISSIONS OF COPYRIGHTED MATERIAL AND RECHANNELING THESE
PROGRAMS THROUGH VARIOUS COMMUNITY ANTENNA TELEVISION (CATV) SYSTEMS TO
PAYING SUBSCRIBERS.  /1/  THE SUIT WAS INITIALLY STAYED BY AGREEMENT OF
THE PARTIES, PENDING THIS COURT'S DECISION IN FORTNIGHTLY CORP. V.
UNITED ARTISTS TELEVISION, 392 U.S. 390.  IN THAT CASE, DECIDED IN
1968, WE HELD THAT THE RECEPTION AND DISTRIBUTION OF TELEVISION
BROADCASTS BY THE CATV SYSTEMS THERE INVOLVED DID NOT CONSTITUTE A
"PERFORMANCE" WITHIN THE MEANING OF THE COPYRIGHT ACT, AND THUS DID NOT
AMOUNT TO COPYRIGHT INFRINGEMENT.  /2/  AFTER THAT DECISION THE
PLAINTIFFS IN THE PRESENT LITIGATION FILED SUPPLEMENTAL PLEADINGS IN
WHICH THEY SOUGHT TO DISTINGUISH THE FIVE CATV SYSTEMS CHALLENGED HERE
FROM THOSE WHOSE OPERATIONS HAD BEEN FOUND NOT TO CONSTITUTE COPYRIGHT
INFRINGEMENT IN FORTNIGHTLY.  /3/  THE DISTRICT COURT SUBSEQUENTLY
DISMISSED THE COMPLAINT ON THE GROUND THAT THE PLAINTIFFS' CAUSE OF
ACTION WAS BARRED BY THE FORNIGHTLY DECISION.  355 F. SUPP. 618.  ON
APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT,
THE JUDGMENT WAS AFFIRMED IN PART AND REVERSED IN PART, AND THE CASE
WAS REMANDED TO THE DISTRICT COURT FOR FUTHER PROCEEDINGS.  476 F.2D
338.  BOTH THE PLAINTIFFS AND THE DEFENDANTS PETITIONED FOR CERTIORARI,
AND, BECAUSE OF THE SEEMINGLY IMPORTANT QUESTIONS OF FEDERAL LAW
INVOLVED, WE GRANTED BOTH PETITIONS.  414 U.S. 817. 

        I 

THE COMPLAINT ALLEGED THAT COPYRIGHT INFRINGEMENTS OCCURRED ON
CERTAIN DATES AT EACH OF FIVE ILLUSTRATIVE CATV SYSTEMS LOCATED IN
ELMIRA, NEW YORK; FARMINGTON, NEW MEXICO, RAWLINS, WYOMING; GREAT
FALLS, MONTANA; AND NEW YORK CITY.  THE OPERATIONS OF THESE SYSTEMS
TYPICALLY INVOLVED THE RECEPTION OF BROADCAST BEAMS BY MEANS OF SPECIAL
TELEVISION ANTENNAE OWNED AND OPERATED BY TELEPROMPTER, TRANSMISSION OF
THESE ELECTRONIC SIGNALS BY MEANS OF CABLE OR A COMBINATION OF CABLE
AND POINT-TO-POINT MICROWAVE /4/  TO THE HOMES OF SUBSCRIBERS, AND THE
CONVERSION OF THE ELECTROMAGNETIC SIGNALS INTO IMAGES AND SOUNDS BY
MEANS OF THE SUBSCRIBERS'  OWN TELEVISION SETS.  /5/  IN SOME CASES THE
DISTANCE BETWEEN THE POINT OF ORIGINAL TRANSMISSION AND THE ULTIMATE
VIEWER WAS RELATIVELY GREAT--IN ONE INSTANCE MORE THAN 450 MILES--AND
RECEPTION OF THE SIGNALS OF THOSE STATIONS BY MEANS OF AN ORDINARY
ROOFTOP ANTENNA, EVEN AN EXTREMELY HIGH ONE, WOULD HAVE BEEN IMPOSSIBLE
BECAUSE OF THE CURVATURE OF THE EARTH AND OTHER TOPOGRAPHICAL FACTORS. 
IN OTHERS, THE ORIGINAL BROADCAST WAS RELATIVELY CLOSE TO THE
CUSTOMERS' RECEIVING SETS AND COULD NORMALLY HAVE BEEN RECEIVED BY
MEANS OF STANDARD TELEVISION EQUIPMENT.  BETWEEN THESE EXTREMES WERE
SYSTEMS INVOLVING INTERMEDIATE DISTANCES WHERE THE BROADCAST SIGNALS
COULD HAVE BEEN RECEIVED BY THE CUSTOMERS'  OWN TELEVISION ANTENNAE
ONLY INTERMITTENTLY, IMPERFECTLY, AND SPORADICALLY.  /6/ 

AMONG THE VARIOUS ACTUAL AND POTENTIAL CATV OPERATIONS DESCRIBED AT
TRIAL THE COURT OF APPEALS DISCERNED, FOR COPYRIGHT PURPOSES, TWO
DISTANT CATEGORIES.  ONE CATEGORY INCLUDED SITUATIONS WHERE THE
BROADCAST SIGNAL WAS ALREADY "IN THE COMMUNITY" SERVED BY A CATV
SYSTEM, AND COULD BE RECEIVED THERE EITHER BY STANDARD ROOFTOP OR OTHER
ANTENNAE BELONGING TO THE OWNERS OF TELEVISION SETS OR BY A COMMUNITY
ANTENNA ERECTED IN OR ADJACENT TO THE COMMUNITY.  SUCH CATV SYSTEMS,
THE COURT FOUND, PERFORMED ESSENTIALLY THE SAME FUNCTION AS THE CATV
SYSTEMS IN FORTNIGHTLY IN THAT THEY "NO MORE THAN ENHANCE THE VIEWER'S
CAPACITY TO RECEIVE THE BROADCASTER'S SIGNALS," 392 U.S., AT 399.  THE
SECOND CATEGORY INCLUDED SITUATIONS WHERE THE CATV SYSTEMS IMPORTED
"DISTANT SIGNALS" FROM BROADCASTERS SO FAR AWAY FROM THE CATV COMMUNITY
THAT NEITHER ROOFTOP NOR COMMUNITY ANTENNAE LOCATED IN OR NEAR THE
LOCALITY COULD NORMALLY RECEIVE SIGNALS CAPABLE OF PROVIDING ACCEPTABLE
IMAGES. 

THE COURT OF APPEALS DETERMINED THAT "(WHEN A CATV SYSTEM IS
PERFORMING THIS SECOND FUNCTION OF DISTRIBUTING SIGNALS THAT ARE BEYOND
THE RANGE OF LOCAL ANTENNAS,..., TO THIS EXTENT, IT IS FUNCTIONALLY
EQUIVALENT TO A BROADCASTER AND THUS SHOULD BE DEEMED TO 'PERFORM' THE
PROGRAMMING DISTRIBUTED TO SUBSCRIBERS ON THESE IMPORTED SIGNALS."  476
F.2D, AT 349.  THE COURT OF APPEALS FOUND THAT IN TWO OF THE OPERATIONS
CHALLENGED IN THE COMPLAINT--THOSE IN ELMIRA AND NEW YORK CITY--THE
SIGNALS RECEIVED AND RECHANNELED BY THE CATV SYSTEMS WERE NOT "DISTANT
SIGNALS," AND AS TO THESE CLAIMS THE COURT AFFIRMED THE DISTRICT
COURT'S DISMISSAL OF THE COMPLAINT.  AS TO THE THREE REMAINING SYSTEMS,
THE CASE WAS REMANDED FOR FURTHER FINDINGS IN ORDER TO APPLY THE
APPELLATE COURT'S TEST FOR DETERMINING WHETHER OR NOT THE SIGNALS WERE
"DISTANT.  /7/  IN NO. 72 - 1633 THE PLAINTIFFS ASK THIS COURT TO
REVERSE THE DETERMINATION OF THE COURT OF APPEALS THAT CATV RECEPTION
AND RETRANSMISSION OF SIGNALS THAT ARE NOT "DISTANT" DO NOT CONSTITUTE
COPYRIGHT INFRINGEMENT.  IN NO. 72 - 1628, THE DEFENDANTS ASK US TO
REVERSE THE APPELLATE COURT'S DETERMINATION THAT RECEPTION AND
RETRANSMISSION OF "DISTANT" SIGNALS AMOUNT TO A "PERFORMANCE," AND THUS
CONSTITUTE COPYRIGHT INFRINGEMENT ON THE PART OF THE CATV SYSTEMS. 

        II 

WE TURN FIRST TO THE ASSERTIONS OF THE PETITIONERS IN NO. 72 - 1633
THAT IRRESPECTIVE OF THE DISTANCE FROM THE BROADCASTING STATION, THE
RECEPTION AND RETRANSMISSION OF ITS SIGNAL BY A CATV SYSTEM CONSTITUTE
A "PERFORMANCE"  OF A COPYRIGHTED WORK.  THESE PETITIONERS CONTEND THAT
A NUMBER OF SIGNIFICANT DEVELOPMENTS IN THE TECHNOLOGY AND ACTUAL
OPERATIONS OF CATV SYSTEMS MANDATE A REASSESSMENT OF THE CONCLUSION
REACHED IN FORTNIGHTLY THAT CATV SYSTEMS ACT ONLY AS AN EXTENSION OF A
TELEVISION SET'S FUNCTION OF CONVERTING INTO IMAGES AND SOUNDS THE
SIGNALS MADE AVAILABLE BY THE BROADCASTERS TO THE PUBLIC.  IN
FORTNIGHTLY THIS COURT REVIEWED EARLIER CASES IN THE FEDERAL COURTS AND
DETERMINED THAT WHILE ANALOGIES TO THE FUNCTIONS OF PERFORMER AND
VIEWER ENVISIONED BY THE CONGRESS IN 1909--THAT OF LIVE OR FILMED
PERFORMANCES WATCHED BY AUDIENCES--WERE NECESSARILY IMPERFECT, A SIMPLE
LINE COULD BE DRAWN: " BROADCASTERS PERFORM.  VIEWERS DO NOT PERFORM." 
392 U.S., AT 398 (FOOTNOTES OMITTED).  ANALYSIS OF THE FUNCTION PLAYED
BY CATV SYSTEMS AND COMPARISON WITH THOSE OF BROADCASTERS AND VIEWERS
CONVINCED THE COURT THAT CATV SYSTEMS FALL "ON THE VIEWER'S SIDE OF THE
LINE."  ID., AT 399 (FOOTNOTE OMITTED). 

     " THE FUNCTION OF CATV SYSTEMS HAS LITTLE IN COMMON WITH THE

  FUNCTION OF BROADCASTERS.  CATV SYSTEMS DO NOT IN FACT BROADCAST

  OR REBROADCAST.  BROADCASTERS SELECT THE PROGRAMS TO BE VIEWED;

  CATV SYSTEMS SIMPLY CARRY, WITHOUT EDITING, WHATEVER PROGRAMS

  THEY RECEIVE.  BROADCASTERS PROCURE PROGRAMS AND PROPAGATE THEM

  TO THE PUBLIC; CATV SYSTEMS RECEIVE PROGRAMS THAT HAVE BEEN

  RELEASED TO THE PUBLIC AND CARRY THEM BY PRIVATE CHANNELS TO

ADDITIONAL VIEWERS.  WE HOLD THAT CATV OPERATORS, LIKE VIEWERS

  AND UNLIKE BROADCASTERS, DO NOT PERFORM THE PROGRAMS THAT THEY

  RECEIVE AND CARRY."  ID., AT 400 - 401 (FOOTNOTES OMITTED). 

THE PETITIONERS CLAIM THAT CERTAIN BASIC CHANGES IN THE OPERATION OF
CATV SYSTEMS THAT HAVE OCCURRED SINCE FORTNIGHTLY BRING THE SYSTEMS IN
QUESTION HERE OVER TO THE BROADCASTERS'"SIDE OF THE LINE."  IN
PARTICULAR, THEY EMPHASIZE THREE DEVELOPMENTS THAT HAVE TAKEN PLACE IN
THE FEW YEARS SINCE THE FORTNIGHTLY DECISION.  FIRST, THEY POINT OUT
THAT MANY CATV SYSTEMS, INCLUDING SOME OF THOSE CHALLENGED HERE,
ORIGINATE PROGRAMS WHOLLY INDEPENDENT OF THE PROGRAMS THAT THEY RECEIVE
OFF-THE-AIR FROM BROADCASTERS AND RECHANNEL TO THEIR SUBSCRIBERS.  /8/
IT IS UNDISPUTED THAT SUCH CATV SYSTEMS "PERFORM"  THOSE PROGRAMS WHICH
THEY PRODUCE AND PROGRAM ON THEIR OWN; BUT IT IS CONTENDED THAT, IN
ADDITION, THE ENGAGEMENT IN SUCH ORIGINAL PROGRAMING CONVERTS THE
ENTIRE CATV OPERATION INTO A "BROADCAST FUNCTION," AND THUS A
"PERFORMANCE" UNDER THE COPYRIGHT ACT.  SECOND, THESE PETITIONERS
ASSERT THAT TELEPROMPTER, UNLIKE THE CATV OPERATORS SUED IN
FORTNIGHTLY, SELLS ADVERTISING TIME TO COMMERCIAL INTERESTS WISHING TO
SELL GOODS OR SERVICES IN THE LOCALITIES SERVED BY ITS CATV SYSTEMS. 
THE SALE OF SUCH COMMERCIALS, THEY POINT OUT, WAS CONSIDERED IN THE
FORTNIGHTLY OPINION AS A FUNCTION CHARACTERISTICALLY PERFORMED BY
BROADCASTERS.  ID., AT 400 N. 28, CITING INTERMOUNTAIN BROADCASTING &
TELEVISION CORP. V. IDAHO MICROWAVE, INC., 196 F.SUPP.  315, 325. 
FINALLY, THEY CONTEND THAT BY ENGAGING IN INTERCONNECTION WITH OTHER
CATV SYSTEMS--WHEREBY ONE CAT* SYSTEM THAT ORIGINATES A PROGRAM SELLS
THE RIGHT TO REDISTRIBUTE IT TO OTHER CATV SYSTEMS THAT CARRY IT
SIMULTANEOUSLY TO THEIR OWN SUBSCRIBERS--THE CATV OPERATORS HAVE
SIMILARLY TRANSFERRED THEIR FUNCTIONS INTO THAT OF BROADCASTERS, THUS
SUBJECTING THEMSELVES TO COPYRIGHT INFRINGEMENT LIABILITY.  /9/ 

THE COPYRIGHT SIGNIFICANCE OF EACH OF THESE FUNCTIONS--, PROGRAM
ORIGINATION, SALE OF COMMERCIALS, AND INTERCONNECTION--, SUFFERS FROM
THE SAME LOGICAL FLAW: IN NONE OF THESE OPERATIONS IS THERE ANY NEXUS
WITH THE DEFENDANTS'  RECEPTION AND RECHANNELING OF THE BROADCASTERS'
COPYRIGHTED MATERIALS.  AS THE COURT OF APPEALS OBSERVED WITH RESPECT
TO PROGRAM ORIGINATION, "(EVEN THOUGH THE ORIGINATION SERVICE AND THE
RECEPTION SERVICE ARE SOLD AS A PACKAGE TO THE SUBSCRIBERS, THEY REMAIN
SEPARATE AND DIFFERENT OPERATIONS, AND WE CANNOT SENSIBLY SAY THAT THE
SYSTEM BECOMES A 'PERFORMER' OF THE BROADCAST PROGRAMMING WHEN IT
OFFERS BOTH ORIGINATION AND RECEPTION SERVICES, BUT REMAINS A
NONPERFORMER WHEN IT OFFERS ONLY THE LATTER."  476 F.2D, AT 347. 
SIMILARLY, NONE OF THE PROGRAMS ACCOMPANYING ADVERTISEMENTS SOLD BY
CATV OR CARRIED VIA AN INTERCONNECTION ARRANGEMENT AMONG CATV SYSTEMS
INVOLVED MATERIAL COPYRIGHTED BY THE PETITIONERS.  /10/ 

FOR THESE REASONS WE HOLD THAT THE COURT OF APPEALS WAS CORRECT IN
DETERMINING THAT THE DEVELOPMENT AND IMPLEMENTATION OF THESE NEW
FUNCTIONS, EVEN THOUGH THEY MAY ALLOW CATV SYSTEMS TO COMPETE MORE
EFFECTIVELY WITH THE BROADCASTERS FOR THE TELEVISION MARKET, ARE SIMPLY
EXTRANEOUS TO A DETERMINATION OF COPYRIGHT INFRINGEMENT LIABILITY WITH
RESPECT TO THE RECEPTION AND RETRANSMISSION OF BROADCASTERS' PROGRAMS. 

        III 

IN NO. 72 - 1628 TELEPROMPTER AND ITS SUBSIDIARY, CONLEY ELECTRONICS
CORP., SEEK A REVERSAL OF THAT PORTION OF THE COURT OF APPEALS'
JUDGMENT THAT DETERMINED THAT THE IMPORTATION OF "DISTANT" SIGNALS FROM
ONE COMMUNITY INTO ANOTHER CONSTITUTES A "PERFORMANCE" UNDER THE
COPYRIGHT ACT.  IN CONCLUDING THAT RECHANNELING OF "DISTANT"  SIGNALS
CONSTITUTES COPYRIGHT INFRINGEMENT WHILE A SIMILAR OPERATION WITH
RESPECT TO MORE NEARBY SIGNALS DOES NOT, THE COURT RELIED IN PART ON A
DESCRIPTION OF CATV OPERATIONS CONTAINED IN THIS COURT'S OPINION IN
UNITED STATES V. SOUTHWESTERN CABLE CO., 392 U.S. 157, ANNOUNCED A WEEK
BEFORE THE DECISION IN FORNIGHTLY: 

     " CATV SYSTEMS PERFORM EITHER OR BOTH OF TWO FUNCTIONS. 
FIRST,

  THEY MAY SUPPLEMENT BROADCASTING BY FACILITATING SATISFACTORY

 RECEPTION OF LOCAL STATIONS IN ADJACENT AREAS IN WHICH SUCH

  RECEPTION WOULD NOT OTHERWISE BE POSSIBLE; AND SECOND, THEY MAY

  TRANSMIT TO SUBSCRIBERS THE SIGNALS OF DISTANT STATIONS ENTIRELY

  BEYOND THE RANGE OF LOCAL ANTENNAE."  ID., AT 163. 

THE COURT IN SOUTHWESTERN CABLE, HOWEVER, WAS FACED WITH CONFLICTING
ASSERTIONS CONCERNING THE JURISDICTION OF THE FEDERAL COMMUNICATIONS
COMMISSION TO REGULATE IN THE PUBLIC INTEREST THE OPERATIONS OF CATV
SYSTEMS.  INSOFAR AS THE LANGUAGE QUOTED HAD OTHER THAN A PURELY
DESCRIPTIVE PURPOSE, IT WAS RELATED ONLY TO THE ISSUE OF REGULATORY
AUTHORITY OF THE COMMISSION.  IN THAT CONTEXT IT DID NOT AND COULD NOT
PURPORT TO CREATE ANY SEPARATION OF FUNCTIONS WITH SIGNIFICANCE FOR
COPYRIGHT PURPOSES.  /11/ 

IN THE BRIEFS AND AT ORAL ARGUMENT VARIOUS RATIONALES FOR THE
DISTINCTION ADOPTED BY THE COURT OF APPEALS HAVE BEEN ADVANCED.  THE
FIRST, ON WHICH THE COURT ITSELF RELIED, IS THE ASSERTION THAT BY
IMPORTING SIGNALS FROM DISTANT COMMUNITIES THE CATV SYSTEMS DO
CONSIDERABLY MORE THAN "ENHANCE THE VIEWER'S CAPACITY TO RECEIVE THE
BROADCASTER'S SIGNALS," FORTNIGHTLY, 392 U.S., AT 399, AND INSTEAD
"BRING SIGNALS INTO THE COMMUNITY THAT WOULD NOT OTHERWISE BE
RECEIVABLE ON AN ANTENNA, EVEN A LARGE COMMUNITY ANTENNA, ERECTED IN
THAT AREA."  476 F.2D, AT 349.  IN CONCLUDING THAT SUCH IMPORTATION
TRANSFORMED THE CATV SYSTEMS INTO PERFORMERS, THE COURT OF APPEALS
MISCONCEIVED THE THRUST OF THIS COURT'S OPINION IN FORTNIGHTLY. 

IN THE FORTNIGHTLY CASE THE COURT OF APPEALS HAD CONCLUDED THAT A
DETERMINATION OF WHETHER AN ELECTRONIC FUNCTION CONSTITUTED A COPYRIGHT
"PERFORMANCE" SHOULD DEPEND ON "HOW MUCH DID THE (CATV SYSTEM) DO TO
BRING ABOUT THE VIEWING AND HEARING OF A COPYRIGHTED WORK."  377 F.2D
872, 877.  THIS QUANTITATIVE APPROACH WAS SQUARELY REJECTED BY THIS
COURT:     "(MERE QUANTITATIVE CONTRIBUTION CANNOT BE THE PROPER TEST
TO DETERMINE COPYRIGHT LIABILITY IN THE CONTEXT OF TELEVISION
BROADCASTING.  . . . RATHER, RESOLUTION OF THE ISSUE BEFORE US DEPENDS
UPON A DETERMINATION OF THE FUNCTION THAT CATV PLAYS IN THE TOTAL
PROCESS OF TELEVISION BROADCASTING AND RECEPTION."  392 U.S., AT 397. 

BY IMPORTING SIGNALS THAT COULD NOT NORMALLY BE RECEIVED WITH
CURRENT TECHNOLOGY IN THE COMMUNITY IT SERVES, A CATV SYSTEM DOES NOT,
FOR COPYRIGHT PURPOSES, ALTER THE FUNCTION IT PERFORMS FOR ITS
SUBSCRIBERS.  WHEN A TELEVISION BROADCASTER TRANSMITS A PROGRAM, IT HAS
MADE PUBLIC FOR SIMULTANEOUS VIEWING AND HEARING THE CONTENTS OF THAT
PROGRAM.  THE PRIVILEGE OF RECEIVING THE BROADCAST ELECTRONIC SIGNALS
AND OF CONVERTING THEM INTO THE SIGHTS AND SOUNDS OF THE PROGRAM
INHERES IN ALL MEMBERS OF THE PUBLIC WHO HAVE THE MEANS OF DOING SO.
THE RECEPTION AND RECHANNELING OF THESE SIGNALS FOR SIMULTANEOUS
VIEWING IS ESSENTIALLY A VIEWER FUNCTION, IRRESPECTIVE OF THE DISTANCE
BETWEEN THE BROADCASTING STATION AND THE ULTIMATE VIEWER. 

IN FORTNIGHTLY THE COURT REASONED THAT "(IF AN INDIVIDUAL ERECTED AN
ANTENNA ON A HILL, STRUNG A CABLE TO HIS HOUSE, AND INSTALLED THE
NECESSARY AMPLIFYING EQUIPMENT, HE WOULD NOT BE 'PERFORMING' THE
PROGRAMS HE RECEIVED ON HIS TELEVISION SET," ID., AT 400, AND CONCLUDED
THAT "(THE ONLY DIFFERENCE IN THE CASE OF CATV IS THAT THE ANTENNA
SYSTEM IS ERECTED AND OWNED NOT BY ITS USERS BUT BY AN ENTREPRENEUR." 
IBID.  IN THE CASE OF IMPORTATION OF "DISTANT SIGNALS," THE FUNCTION IS
ESSENTIALLY THE SAME.  WHILE THE ABILITY OR INCLINATION OF AN
INDIVIDUAL TO ERECT HIS OWN ANTENNA MIGHT DECREASE WITH RESPECT TO
DISTANT SIGNALS BECAUSE OF THE INCREASED COST OF BRINGING THE SIGNAL TO
HIS HOME, HIS STATUS AS A "NONPERFORMER"  WOULD REMAIN UNCHANGED. 
SIMILARLY, A CATV SYSTEM DOES NOT LOSE ITS STATUS AS A NONBROADCASTER,
AND THUS A "NONPERFORMER" FOR COPYRIGHT PURPOSES, WHEN THE SIGNALS IT
CARRIES ARE FROM DISTANT RATHER THAN LOCAL SOURCES. 

IT IS FURTHER ARGUED THAT WHEN A CATV OPERATOR INCREASES THE NUMBER
OF BROADCAST SIGNALS THAT IT MAY RECEIVE AND REDISTRIBUTE, IT EXERCISES
CERTAIN ELEMENTS OF CHOICE AND SELECTION AMONG ALTERNATIVE SOURCES AND
THAT THIS EXERCISE BRINGS IT WITHIN SCOPE OF THE BROADCASTER FUNCTION. 
IT IS POINTED OUT THAT SOME OF THE CATV SYSTEMS IMPORTING SIGNALS FROM
RELATIVELY DISTANT SOURCES COULD WITH EQUAL EASE AND COST HAVE DECIDED
TO IMPORT SIGNALS FROM OTHER STATIONS AT NO GREATER DISTANCE FROM THE
COMMUNITIES THEY SERVE.  IN SOME INSTANCES, THE CATV SYSTEM HERE
INVOLVED "LEAPFROGGED" NEARER BROADCASTING STATIONS IN ORDER TO RECEIVE
AND RECHANNEL MORE DISTANT PROGRAMS.  /12/  BY CHOOSING AMONG THE
ALTERNATIVE BROADCASTING STATIONS, IT IS SAID, A CATV SYSTEM FUNCTIONS
MUCH LIKE A NETWORK AFFILIATE WHICH CHOOSES THE MIX OF NATIONAL AND
LOCAL PROGRAM MATERIAL IT WILL BROADCAST. 

THE DISTINCT FUNCTIONS PLAYED BY BROADCASTERS AND CATV SYSTEMS WERE
DESCRIBED IN FORTNIGHTLY IN THE FOLLOWING TERMS: 

" BROADCASTERS SELECT THE PROGRAMS TO BE VIEWED; CATV SYSTEMS SIMPLY
CARRY, WITHOUT EDITING, WHATEVER PROGRAMS THEY RECEIVE.  BROADCASTERS
PROCURE PROGRAMS AND PROPAGATE THEM TO THE PUBLIC; CATV SYSTEMS RECEIVE
PROGRAMS THAT HAVE BEEN RELEASED TO THE PUBLIC AND CARRY THEM BY
PRIVATE CHANNELS TO ADDITIONAL VIEWERS."  ID., AT 400.  EVEN IN
EXERCISING ITS LIMITED FREEDOM TO CHOOSE AMONG VARIOUS BROADCASTING
STATIONS, A CATV OPERATOR SIMPLY CANNOT BE VIEWED AS "SELECTING,"
"PROCURING," OR "PROPAGATING"  BROADCAST SIGNALS AS THOSE TERMS WERE
USED IN FORTNIGHTLY.  WHEN A LOCAL BROADCASTING STATION SELECTS A
PROGRAM TO BE BROADCAST AT A CERTAIN TIME, IT IS EXERCISING A CREATIVE
CHOICE AMONG THE MANY POSSIBLE PROGRAMS AVAILABLE FROM THE NATIONAL
NETWORK WITH WHICH IT IS AFFILIATED, FROM COPYRIGHT HOLDERS OF NEW OR
RERUN MOTION PICTURES, OR FROM ITS OWN FACILITIES TO GENERATE AND
PRODUCE ENTIRELY ORIGINAL PROGRAM MATERIAL.  THE ALTERNATIVES ARE
MYRIAD, AND THE CREATIVE POSSIBILITIES LIMITED ONLY BY SCOPE OF
IMAGINATION AND FINANCIAL CONSIDERATIONS.  AN OPERATOR OF A CATV
SYSTEM, HOWEVER, MAKES A CHOICE AS TO WHICH BROADCAST SIGNALS TO
RECHANNEL TO ITS SUBSCRIBERS, AND ITS CREATIVE FUNCTION IS THEN
EXTINGUISHED.  THEREAFTER IT "SIMPLY CARRIES), WITHOUT EDITING,
WHATEVER PROGRAMS (IT) RECEIVES)."  IBID. MOREOVER, A CATV SYSTEM
IMPORTING "DISTANT" SIGNALS DOES NOT PROCURE PROGRAMS AND PROPAGATE
THEM TO THE PUBLIC, SINCE IT IS NOT ENGAGED IN CONVERTING THE SIGHTS
AND SOUNDS OF AN EVENT OR A PROGRAM INTO ELECTRONIC SIGNALS AVAILABLE
TO THE PUBLIC.  THE ELECTRONIC SIGNALS IT RECEIVES AND RECHANNELS HAVE
ALREADY BEEN "RELEASED TO THE PUBLIC"  EVEN THOUGH THEY MAY NOT BE
NORMALLY AVAILABLE TO THE SPECIFIC SEGMENT OF THE PUBLIC SERVED BY THE
CATV SYSTEM. 

FINALLY, IT IS CONTENDED THAT IMPORTATION OF "DISTANT"  SIGNALS
SHOULD ENTAIL COPYRIGHT INFRINGEMENT LIABILITY BECAUSE OF THE
DELETERIOUS IMPACT OF SUCH RETRANSMISSION UPON THE ECONOMICS AND MARKET
STRUCTURE OF COPYRIGHT LICENSING.  WHEN A COPYRIGHT HOLDER FIRST
LICENSES A COPYRIGHTED PROGRAM TO BE SHOWN ON BROADCAST TELEVISION, HE
TYPICALLY CANNOT EXPECT TO RECOUP HIS ENTIRE INVESTMENT FROM A SINGLE
BROADCAST.  RATHER, AFTER A PROGRAM HAS HAD A "FIRST RUN" ON THE MAJOR
BROADCASTING NETWORKS, IT IS OFTEN LATER SYNDICATED TO AFFILIATES AND
INDEPENDENT STATIONS FOR "SECOND RUN" PROPAGATION TO SECONDARY
MARKETS.  THE COPYRIGHT HOLDERS ARGUE THAT IF CATV SYSTEMS ARE ALLOWED
TO IMPORT PROGRAMS AND RECHANNEL THEM INTO SECONDARY MARKETS THEY WILL
DILUTE THE PROFITABILITY OF LATER SYNDICATIONS, SINCE VIEWER APPEAL, AS
MEASURED BY VARIOUS RATING SYSTEMS, DIMINISHES WITH EACH SUCCESSIVE
SHOWING IN A GIVEN MARKET.  WE ARE TOLD THAT IN ORDER TO ENSURE "THE
GENERAL BENEFITS DERIVED BY THE PUBLIC FROM THE LABORS OF AUTHORS," FOX
FILM CORP. V. DOYAL, 286 U.S. 123, 127, AND "'THE INCENTIVE TO FURTHER
EFFORTS FOR THE SAME IMPORTANT OBJECTS,'" ID., AT 127 - 128, CITING
KENDALL V. WINSOR, 21 HOW.  322, 328, CURRENT LICENSING RELATIONSHIPS
MUST BE MAINTAINED. 

IN THE TELEVISION INDUSTRY, HOWEVER, THE COMMERCIAL RELATIONS
BETWEEN THE COPYRIGHT HOLDERS AND THE LICENSEES ON THE ONE HAND AND THE
VIEWING PUBLIC ON THE OTHER ARE SUCH THAT DILUTION OR DISLOCATION OF
MARKETS DOES NOT HAVE THE DIRECT ECONOMIC OR COPYRIGHT SIGNIFICANCE
THAT THIS ARGUMENT ASCRIBES TO IT.  UNLIKE PROPAGATORS OF OTHER
COPYRIGHTED MATERIAL, SUCH AS THOSE WHO SELL BOOKS, PERFORM LIVE
DRAMATIC PRODUCTIONS, OR PROJECT MOTION PICTURES TO LIVE AUDIENCES,
HOLDERS OF COPYRIGHTS FOR TELEVISION PROGRAMS OR THEIR LICENSEES ARE
NOT PAID DIRECTLY BY THOSE WHO ULTIMATELY ENJOY THE PUBLICATION OF THE
MATERIAL--THAT IS, THE TELEVISION VIEWERS--BUT BY ADVERTISERS WHO USE
THE DRAWING POWER OF THE COPYRIGHTED MATERIAL TO PROMOTE THEIR GOODS
AND SERVICES.  SUCH ADVERTISERS TYPICALLY PAY THE BROADCASTERS A FEE
FOR EACH TRANSMISSION OF AN ADVERTISEMENT BASED ON AN ESTIMATE OF THE
EXPECTED NUMBER AND CHARACTERISTICS OF THE VIEWERS WHO WILL WATCH THE
PROGRAM.  WHILE, AS MEMBERS OF THE GENERAL PUBLIC, THE VIEWERS
INDIRECTLY PAY FOR THE PRIVILEGE OF VIEWING COPYRIGHTED MATERIAL
THROUGH INCREASED PRICES FOR THE GOODS AND SERVICES OF THE ADVERTISERS,
THEY ARE NOT INVOLVED IN A DIRECT ECONOMIC RELATIONSHIP WITH THE
COPYRIGHT HOLDERS OR THEIR LICENSEES.  /13/ 

BY EXTENDING THE RANGE OF VIEWABILITY OF A BROADCAST PROGRAM, CATV
SYSTEMS THUS DO NOT INTERFERE IN ANY TRADITIONAL SENSE WITH THE
COPYRIGHT HOLDERS' MEANS OF EXTRACTING RECOMPENSE FOR THEIR CREATIVITY
OR LABOR.  WHEN A BROADCASTER TRANSMITS A PROGRAM UNDER LICENSE FROM
THE COPYRIGHT HOLDER HE HAS NO CONTROL OVER THE SEGMENT OF THE
POPULATION WHICH MAY VIEW THE PROGRAM--, THE BROADCASTER CANNOT BEAM
THE PROGRAM EXCLUSIVELY TO THE YOUNG OR TO THE OLD, ONLY TO WOMEN OR
ONLY TO MEN--, BUT RATHER HE GETS PAID BY ADVERTISERS ON THE BASIS OF
ALL VIEWERS WHO WATCH THE PROGRAM.  THE USE OF CATV DOES NOT
SIGNIFICANTLY ALTER THIS SITUATION.  INSTEAD OF BASING ADVERTISING FEES
ON THE NUMBER OF VIEWERS WITHIN THE RANGE OF DIRECT TRANSMISSION PLUS
THOSE WHO MAY RECEIVE "LOCAL SIGNALS" VIA A CATV SYSTEM, BROADCASTERS
WHOSE RECEPTION RANGES HAVE BEEN EXTENDED BY MEANS OF "DISTANT SIGNAL"
CATV RECHANNELING WILL MERELY HAVE A DIFFERENT AND LARGER VIEWER
MARKET.  /14/  FROM THE POINT OF VIEW OF THE BROADCASTERS, SUCH MARKET
EXTENSION MAY MARK A REALLOCATION OF THE POTENTIAL NUMBER OF VIEWERS
EACH STATION MAY REACH, A FACT OF NO DIRECT CONCERN UNDER THE COPYRIGHT
ACT.  FROM THE POINT OF VIEW OF THE COPYRIGHT HOLDERS, SUCH MARKET
CHANGES WILL MEAN THAT THE COMPENSATION A BROADCASTER WILL BE WILLING
TO PAY FOR THE USE OF COPYRIGHTED MATERIAL WILL BE CALCULATED ON THE
BASIS OF THE SIZE OF THE DIRECT BROADCAST MARKET AUGMENTED BY THE SIZE
OF THE CATV MARKET.  /15/ 

THESE SHIFTS IN CURRENT BUSINESS AND COMMERCIAL RELATIONSHIPS, WHILE
OF SIGNIFICANCE WITH RESPECT TO THE ORGANIZATION AND GROWTH OF THE
COMMUNICATIONS INDUSTRY, SIMPLY CANNOT BE CONTROLLED BY MEANS OF
LITIGATION BASED ON COPYRIGHT LEGISLATION ENACTED MORE THAN HALF A
CENTURY AGO, WHEN NEITHER BROADCAST TELEVISION NOR CATV WAS YET
CONCEIVED.  DETAILED REGULATION OF THESE RELATIONSHIPS, AND ANY
ULTIMATE RESOLUTION OF THE MANY SENSITIVE AND IMPORTANT PROBLEMS IN
THIS FIELD, MUST BE LEFT TO CONGRESS.  /16/ 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED
IN PART, AND THESE CASES ARE REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO REINSTATE ITS JUDGMENT. 

 IT IS SO ORDERED. 

/1/  THE EXCLUSIVE RIGHTS OF COPYRIGHT OWNERS ARE SPECIFIED IN 1 OF
THE COPYRIGHT ACT: 

"ANY PERSON ENTITLED THERETO, UPON COMPLYING WITH THE PROVISIONS OF
THIS TITLE, SHALL HAVE THE EXCLUSIVE RIGHT: 

"(A) TO PRINT, REPRINT, PUBLISH, COPY, AND VEND THE COPYRIGHTED
WORK; 

"(B) TO TRANSLATE THE COPYRIGHTED WORK INTO OTHER LANGUAGES OR
DIALECTS, OR MAKE ANY OTHER VERSION THEREOF, IF IT BE A LITERARY WORK;
TO DRAMATIZE IT IF IT BE A NONDRAMATIC WORK; TO CONVERT IT INTO A NOVEL
OR OTHER NONDRAMATIC WORK IF IT BE A DRAMA; TO ARRANGE OR ADAPT IT IF
IT BE A MUSICAL WORK; TO COMPLETE, EXECUTE, AND FINISH IT IF IT BE A
MODEL OR DESIGN FOR A WORK OF ART; 

"(C) TO DELIVER, AUTHORIZE THE DELIVERY OF, READ, OR PRESENT THE
COPYRIGHTED WORK IN PUBLIC FOR PROFIT IF IT BE A LECTURE, SERMON,
ADDRESS OR SIMILAR PRODUCTION, OR OTHER NONDRAMATIC LITERARY WORK; TO
MAKE OR PROCURE THE MAKING OF ANY TRANSCRIPTION OR RECORD THEREOF BY OR
FROM WHICH, IN WHOLE OR IN PART, IT MAY IN ANY MANNER OR BY ANY METHOD
BE EXHIBITED, DELIVERED, PRESENTED, PRODUCED, OR REPRODUCED; AND TO
PLAY OR PERFORM IT IN PUBLIC FOR PROFIT, AND TO EXHIBIT, REPRESENT,
PRODUCE, OR REPRODUCE IT IN ANY MANNER OR BY ANY METHOD WHATSOEVER. 
THE DAMAGES FOR THE INFRINGEMENT BY BROADCAST OF ANY WORK REFERRED TO
IN THIS SUBSECTION SHALL NOT EXCEED THE SUM OF $100 WHERE THE
INFRINGING BROADCASTER SHOWS THAT HE WAS NOT AWARE THAT HE WAS
INFRINGING AND THAT SUCH INFRINGEMENT COULD NOT HAVE BEEN REASONABLY
FORESEEN; AND 

"(D) TO PERFORM OR REPRESENT THE COPYRIGHTED WORK PUBLICLY IF IT BE
A DRAMA OR, IF IT BE A DRAMATIC WORK AND NOT REPRODUCED IN COPIES FOR
SALE, TO VEND ANY MANUSCRIPT OR ANY RECORD WHATSOEVER THEREOF; TO MAKE
OR TO PROCURE THE MAKING OF ANY TRANSCRIPTION OR RECORD THEREOF BY OR
FROM WHICH, IN WHOLE OR IN PART, IT MAY IN ANY MANNER OR BY ANY METHOD
BY EXHIBITED, PERFORMED, REPRESENTED, PRODUCED, OR REPRODUCED; AND TO
EXHIBIT- PERFORM, REPRESENT, PRODUCE, OR REPRODUCE IT IN ANY MANNER OR
BY ANY METHOD WHATSOEVER; AND 

"(E) TO PERFORM THE COPYRIGHTED WORK PUBLICLY FOR PROFIT IF IT BE A
MUSICAL COMPOSITION; AND FOR THE PURPOSE OF PUBLIC PERFORMANCE FOR
PROFIT, AND FOR THE PURPOSES SET FORTH IN SUBSECTION (A) HEREOF, TO
MAKE ANY ARRANGEMENT OR SETTING OF IT OR OF THE MELODY OF IT IN ANY
SYSTEM OF NOTATION OR ANY FORM OF RECORD IN WHICH THE THOUGHT OF AN
AUTHOR MAY BE RECORDED AND FROM WHICH IT MAY BE READ OR
REPRODUCED...."  17 U.S.C. 1. 

/2/  ALTHOUGH THE COPYRIGHT ACT DOES NOT CONTAIN AN EXPLICIT
DEFINITION OF INFRINGEMENT, IT IS SETTLED THAT UNAUTHORIZED USE OF
COPYRIGHTED MATERIAL INCONSISTENT WITH THE "EXCLUSIVE RIGHTS"
ENUMERATED IN 1, CONSTITUTES COPYRIGHT INFRINGEMENT UNDER FEDERAL LAW. 
SEE 1 M. NIMMER, COPYRIGHT 100, P. 376 (1973).  USE OF COPYRIGHTED
MATERIAL NOT IN CONFLICT WITH A RIGHT SECURED BY 1, HOWEVER, NO MATTER
HOW WIDESPREAD, IS NOT COPYRIGHT INFRINGEMENT.  "THE FUNDAMENTAL (IS)
THAT 'USE' IS NOT THE SAME THING AS 'INFRINGEMENT,' THAT USE SHORT OF
INFRINGEMENT IS TO BE ENCOURAGED...."  B. KAPLAN, AN UNHURRIED VIEW OF
COPYRIGHT 57 (1967). 

IT APPEARS TO BE CONCEDED THAT LIABILITY IN THIS CASE DEPENDS
ENTIRELY ON WHETHER THE DEFENDANTS DID "PERFORM" THE COPYRIGHTED
WORKS.  TELEPROMPTER HAS NOT CONTENDED IN THIS COURT THAT, IF IT DID
"PERFORM" THE MATERIAL, ITS PERFORMANCE WAS NOT "IN PUBLIC"  WITHIN THE
MEANING OF 1 (C) OF THE ACT (NONDRAMATIC LITERARY WORKS) OR "PUBLICLY"
UNDER 1 (D) (DRAMATIC WORKS).  CF. FORTNIGHTLY CORP. V. UNITED ARTISTS
TELEVISION, 392 U.S. 390, 395 N. 13. 

/3/  THE PLAINTIFFS' AMENDED COMPLAINTS ALSO CONTAINED ALLEGATIONS
OF ADDITIONAL COPYRIGHT INFRINGEMENTS ON VARIOUS DATES IN 1969 AND
1971. 

/4/  THE COURT OF APPEALS IN THIS CASE DESCRIBED THE DIFFERENCES
BETWEEN POINT-TO-POINT MICROWAVE TRANSMISSION AND BROADCASTING IN THE
FOLLOWING TERMS: 

"A MICROWAVE LINK INVOLVES THE TRANSMISSION OF SIGNALS THROUGH THE
AIR.  HOWEVER, MICROWAVE TRANSMISSION IN ITSELF IS NOT BROADCASTING.  A
BROADCAST SIGNAL, ACCORDING TO 47 U.S.C. 153 (O), IS TRANSMITTED BY A
BROADCASTER FOR '(RECEPTION) BY THE PUBLIC.'  IN THE CASE OF MICROWAVE,
THE SIGNAL IS FOCUSED AND TRANSMITTED IN A NARROW BEAM AIMED WITH
PRECISION AT THE RECIVING POINTS.  THUS, MICROWAVE TRANSMISSION IS
POINT-TO-POINT COMMUNICATION.  THE RECEIVING ANTENNA MUST BE IN THE
PATH OF THE SIGNAL BEAM.  IF THE TRANSMISSION MUST COVER A CONSIDERABLE
DISTANCE, THE MICROWAVE SIGNAL IS TRANSMITTED TO THE FIRST RECEIVING
POINT FROM WHICH IT IS RETRANSMITTED TO ANOTHER RECEIVING POINT, AND
THIS PROCESS IS REPEATED UNTIL THE SIGNAL REACHES THE POINT FROM WHICH
IT IS DISTRIBUTED BY CABLE TO SUBSCRIBERS."  476 F.2D 338, 343 N. 6. 
THE PLAINTIFFS ARGUED IN THE DISTRICT COURT AND IN THE COURT OF APPEALS
THAT "THE USE OF MICROWAVE, IN AND OF ITSELF, IS SUFFICIENT TO MAKE A
CATV SYSTEM FUNCTIONALLY EQUIVALENT TO A BROADCASTER AND THUS SUBJECT
TO COPYRIGHT LIABILITY ...."  ID., AT 348 - 349.  THIS CONTENTION WAS
REJECTED BY THE COURT OF APPEALS ON THE GROUND THAT MICROWAVE
TRANSMISSION "IS MERELY AN ALTERNATIVE, MORE ECONOMICAL IN SOME
CIRCUMSTANCES, TO CABLE IN TRANSMITTING A BROADCAST SIGNAL FROM ONE
POINT IN A CATV SYSTEM TO ANOTHER," ID., AT 349, AND THE ARGUMENT HAS
NOT BEEN RENEWED IN THIS COURT. 

/5/  FOR GENERAL DESCRIPTIONS OF CATV SYSTEMS AND THEIR OPERATION,
SEE UNITED STATES V. SOUTHWESTERN CABLE CO., 392 U.S. 157; M. SEIDEN,
AN ECONOMIC ANALYSIS OF COMMUNITY ANTENNA TELEVISION SYSTEMS AND THE
TELEVISION BROADCASTING INDUSTRY (1965); NOTE, REGULATION OF COMMUNITY
ANTENNA TELEVISION, 70 COL L. REV. 837 (1970); NOTE; THE WIRE MIRE: THE
FCC AND CATV, 79 HARV. L. REV. 366 (1965). 

/6/  IN TWO OF THE CITIES INVOLVED IN THIS SUIT SIGNALS NOT NORMALLY
RECEIVABLE BY HOUSEHOLD SETS BECAUSE OF DISTANCE OR TERRAIN COULD BE
RECEIVED BY ROOFTOP ANTENNAE BECAUSE OF THE USE BY THE BROADCASTING
STATIONS OF "TRANSLATORS," UNDER LICENSE FROM THE FEDERAL
COMMUNICATIONS COMMISSION, WHICH REBROADCAST A SPECIFIC STATION'S
SIGNALS.  SEE 476 F.2D, AT 344 AND N. 7. 

/7/  THE COURT OF APPEALS ACKNOWLEDGED THAT A DETERMINATION OF WHAT
IS A "DISTANT SIGNAL" WAS "DIFFICULT," AND "THAT A PRECISE JUDICIAL
DEFINITION OF A DISTANT SIGNAL IS NOT POSSIBLE."  476 F.2D, AT 350. 
FCC REGULATIONS AT ONE TIME PROVIDED THAT FOR REGULATORY PURPOSES A
DISTANT SIGNAL WAS ONE "WHICH IS EXTENDED OR RECEIVED BEYOND THE GRADE
B CONTOUR OF THAT STATION."  47 CFR 74.1101 (I) (1971) (REMOVED IN 37
FED. REG. 3278 (1972)).  A GRADE B CONTOUR WAS DEFINED AS A LINE ALONG
WHICH GOOD RECEPTION MAY BE EXPECTED 90% OF THE TIME AT 50% OF THE
LOCATIONS.  UNITED STATES V. SOUTHWESTERN CABLE CO., SUPRA, AT 163 N.
16.  THE COURT OF APPEALS RECOGNIZED THAT "THIS DEFINITION (IS)
UNSUITABLE FOR COPYRIGHT PURPOSES BECAUSE ... ANY DEFINITION PHRASED IN
TERMS OF WHAT CAN BE RECEIVED IN AREA HOMES USING ROOFTOP ANTENNAS
WOULD FLY IN THE FACE OF THE MANDATE OF FORTNIGHTLY."  476 F.2D, AT
350.  THE COURT FOUND INSTEAD THAT "IT IS EASIER TO STATE WHAT IS NOT A
DISTANT SIGNAL THAN TO STATE WHAT IS A DISTANT SIGNAL.  ACCORDINGLY, WE
HAVE CONCLUDED THAT ANY SIGNAL CAPABLE OF PROJECTING, WITHOUT RELAY OR
RETRANSMITTAL, AN ACCEPTABLE IMAGE THAT A CATV SYSTEM RECEIVES OFF-THE
AIR DURING A A SUBSTANTIAL PORTION OF THE TIME BY MEANS OF AN ANTENNA
ERECTED IN OR ADJACENT TO THE CATV COMMUNITY IS NOT A DISTANT SIGNAL." 
ID., AT 351. 

/8/  PROGRAM ORIGINATION INITIALLY CONSISTED OF SIMPLE ARRANGEMENTS
ON SPARE CHANNELS USING AUTOMATED CAMERAS PROVIDING TIME, WEATHER, NEWS
TICKER, OR STOCK TICKER INFORMATION, AND AURAL SYSTEMS WITH MUSIC OR
NEWS ANNOUNCEMENTS.  THE FUNCTION HAS BEEN EXPANDED TO INCLUDE COVERAGE
OF SPORTS AND OTHER LIVE EVENTS, NEWS SERVICES, MOVING PICTURE FILMS,
AND SPECIALLY CREATED DRAMATIC AND NONDRAMATIC PROGRAMS.  SEE CATV
FIRST REPORT AND ORDER, 20 F.C.C. 2D 201; UNITED STATES V. MIDWEST
VIDEO CORP., 406 U.S. 649. 

/9/  THE COURT OF APPEALS LIMITED ITS DISCUSSION OF INTERCONNECTION
AMONG CATV SYSTEMS TO TWO INSTANCES OF LIVE COVERAGE OF CHAMPIONSHIP
HEAVYWEIGHT BOXING CONTESTS.  WHILE THE RESPONDENTS CONTEND THAT
ADDITIONAL EXAMPLES OF INTERCONNECTION WERE PRESENTED IN THE TRIAL
TESTIMONY, THEY DO NOT SUGGEST THAT MATERIAL COPYRIGHTED BY ANYONE
OTHER THAN THE CATV OPERATORS WAS CARRIED BY ANY SUCH INTERCONNECTION,
AND THUS THE EXACT NUMBER OF SUCH INSTANCES IS OF NO SIGNIFICANCE. 

/10/  WHILE THE TECHNOLOGY APPARENTLY EXISTS WHEREBY A CATV SYSTEM
COULD RETRANSMIT TO ITS SUBSCRIBERS BROADCAST PROGRAMS TAKEN OFF-THE
AIR BUT SUBSTITUTE ITS OWN COMMERCIALS FOR THOSE APPEARING IN THE
BROADCAST, NONE OF THE INSTANCES OF CLAIMED INFRINGEMENT INVOLVED SUCH
A PROCESS. 

/11/  THE FCC HAS CONSISTENTLY CONTENDED THAT IT IS WITHOUT POWER TO
ALTER RIGHTS EMANATING FROM OTHER SOURCES, INCLUDING THE COPYRIGHT
ACT.  IN 1966 IT INDICATED THAT ITS PROPOSED RULES REGULATING CATV
OPERATIONS WOULD NOT "AFFECT IN ANY WAY THE PENDING COPYRIGHT SUITS,
INVOLVING AS THEY DO MATTERS ENTIRELY BEYOND (THE FCC'S)
JURISDICTION."  SECOND REPORT AND ORDER, COMMUNITY ANTENNA TELEVISION
SYSTEMS, 2 F.C.C. 2D 725, 768.  THIS POSITION IS CONSISTENT WITH THE
TERMS OF THE COMMUNICATIONS ACT OF 1934, THE SOURCE OF THE COMMISSION'S
REGULATORY POWER, WHICH PROVIDES, IN PART: 

" NOTHING IN THIS CHAPTER CONTAINED SHALL IN ANY WAY ABRIDGE OR
ALTER THE REMEDIES NOW EXISTING AT COMMON LAW OR BY STATUTE, BUT THE
PROVISIONS OF THIS CHAPTER ARE IN ADDITION TO SUCH REMEDIES."  47
U.S.C. 414.  THUS, IT IS HIGHLY UNLIKELY THAT THE "DISTANT SIGNAL"
DEFINITION ADOPTED BY THE COMMISSION OR A DIFFERENTIATION OF FUNCTION
BASED ON SUCH A DEFINITION WAS INTENDED TO OR COULD HAVE COPYRIGHT
SIGNIFICANCE.  INDEED, AS NOTED, THE COURT OF APPEALS IN THE PRESENT
CASE FOUND THAT THE COMMISSION'S DEFINITION OF A "DISTANT SIGNAL" WAS
UNSATISFACTORY FOR DETERMINING IF A "PERFORMANCE" UNDER THE COPYRIGHT
ACT HAD OCCURRED.  SEE N. 7, SUPRA. 

/12/  FOR EXAMPLE, IT WAS REPRESENTED IN A BRIEF BEFORE THIS COURT
THAT THE FARMINGTON, NEW MEXICO, CATV SYSTEM IMPORTED SIGNALS FROM A
LOS ANGELES STATION EVEN THOUGH 113 OTHER STATIONS WERE CLOSER OR
EQUIDISTANT, INCLUDING A NUMBER WHICH, UNLIKE THE LOS ANGELES STATION,
WERE IN THE SAME TIME ZONE AS THE FARMINGTON COMMUNITY. 

/13/ SOME COMMENTATORS HAVE SUGGESTED THAT IF CATV SYSTEMS MUST PAY
LICENSE FEES FOR THE PRIVILEGE OF RETRANSMITTING COPYRIGHTED BROADCAST
PROGRAMS, THE CATV SUBSCRIBERS WILL IN EFFECT BE PAYING TWICE FOR THE
PRIVILEGE OF SEEING SUCH PROGRAMS: FIRST THROUGH INCREASED PRICES FOR
THE GOODS AND SERVICES OF THE ADVERTISERS WHO PAY FOR THE TELEVISION
BROADCASTS AND A SECOND TIME IN THE INCREASED COST OF THE CATV
SERVICE.  NOTE, CATV AND COPYRIGHT LIABILITY:  ON A CLEAR DAY YOU CAN
SEE FOREVER, 52 VA. L. REV. 1505, 1515 (1966); NOTE, CATV AND COPYRIGHT
LIABILITY, 80 HARV. L. REV. 1514, 1522 - 1523 (1967).  SEE N. 15,
INFRA. 

/14/  TESTIMONY AND EXHIBITS INTRODUCED IN THE DISTRICT COURT
INDICATE TAHT THE MAJOR RATING SERVICES COVER IN THEIR COMPILATIONS
INDICATE CONCERNING THE ENTIRE NUMBER OF VIEWERS OF A PARTICULAR
PROGRAM, INCLUDING THOSE WHO RECEIVE THE BROADCAST VIA "DISTANT"
TRANSMISSION OVER CATV SYSTEMS.  THE WEIGHT GIVEN SUCH STATISTICS BY
ADVERTISERS WHO BID FOR BROADCAST TIME AND PAY THE FEES WHICH SUPPORT
THE BROADCASTING INDUSTRY WAS NOT, HOWEVER, ESTABLISHED.  SEE N. 15,
INFRA. 

/15/  IT IS CONTENDED THAT COPYRIGHT HOLDERS WILL NECESSARILY SUFFER
A NET LOSS FROM THE DISSEMINATION OF THEIR COPYRIGHTED MATERIAL IF
LICENSE-FREE USE OF "DISTANT SIGNAL" IMPORTATION IS PERMITTED.  IT IS
SAID THAT IMPORTATION OF COPYRIGHTED MATERIAL INTO A SECONDARY MARKET
WILL RESULT IN A LOSS IN THE SECONDARY MARKET WITHOUT INCREASING
REVENUES FROM THE EXTENDED PRIMARY MARKET ON A SCALE SUFFICIENT TO
COMPENSATE FOR THAT LOSS.  THE ASSUMPTION IS THAT LOCAL ADVERTISERS,
SUPPORTING "FIRST RUN" PROGRAMS WILL BE UNLIKELY TO PAY SIGNIFICANTLY
HIGHER FEES ON THE BASIS OF ADDITIONAL VIEWERS IN A "DISTANT" MARKET
BECAUSE SUCH VIEWERS WILL TYPICALLY HAVE NO COMMERCIAL INTEREST IN THE
GOODS AND SERVICES SOLD BY PURELY LOCAL ADVERTISERS.  FOR DISCUSSION OF
THE POSSIBLE IMPACT OF CATV "DISTANT SIGNAL" IMPORTATION ON ADVERTISER
MARKETS FOR BROADCAST TELEVISION, SEE 52 VA. L. REV., AT 1513 - 1616;
80 HARV. L. REV., AT 1522 - 1525.  THE COURT OF APPEALS NOTED THAT "(NO
EVIDENCE WAS PRESENTED IN THE COURT BELOW TO SHOW THAT REGIONAL OR
LOCAL ADVERTISERS WOULD BE WILLING TO PAY GREATER FEES BECAUSE THE
SPONSORED PROGRAM WILL BE EXHIBITED IN SOME DISTANT MARKET, OR THAT
NATIONAL ADVERTISERS WOULD PAY MORE FOR THE RELATIVELY MINOR INCREASE
IN AUDIENCE SIZE THAT CATV CARRIAGE WOULD YIELD FOR A NETWORK PROGRAM,"
AND CONCLUDED THAT "(INDEED, ECONOMICS AND COMMON SENSE WOULD IMPEL ONE
TO AN OPPOSITE CONCLUSION."  476 F.2D, AT 342 N. 2.  THUS, NO SPECIFIC
FINDINGS OF FACT WERE MADE CONCERNING THE PRECISE IMPACT OF "DISTANT
SIGNAL" RETRANSMISSION ON THE VALUE OF PROGRAM COPYRIGHTS.  BUT SUCH A
SHOWING WOULD BE OF VERY LITTLE RELEVANCE TO THE COPYRIGHT QUESTION WE
DECIDE HERE.  AT ISSUE IN THIS CASE IS THE LIMITED QUESTION OF WHETHER
CATV TRANSMISSION OF "DISTANT"  SIGNALS CONSTITUTES A "PERFORMANCE"
UNDER THE COPYRIGHT ACT.  WHILE SECURING COMPENSATION TO THE HOLDERS OF
COPYRIGHTS WAS AN ESSENTIAL PURPOSE OF THAT ACT, FREEZING EXISTING
ECONOMIC ARRANGEMENTS FOR DOING SO WAS NOT.  IT HAS BEEN SUGGESTED THAT
THE BEST THEORETICAL APPROACH TO THE PROBLEM MIGHT BE "(A) RULE WHICH
CALLED FOR COMPENSATION TO COPYRIGHT HOLDERS ONLY FOR THE ACTUAL
ADVERTISING TIME 'WASTED' ON LOCAL ADVERTISERS UNWILLING TO PAY FOR THE
INCREASE IN AUDIENCE SIZE BROUGHT ABOUT BY THE CABLE TRANSMISSION,"
NOTE, 87 HARV. L. REV. 665, 675 N. 32 (1974).  BUT SUCH A RULE WOULD
ENTAIL EXTENDED FACTFINDING AND A LEGISLATIVE, RATHER THAN A JUDICIAL,
JUDGMENT.  IN ANY EVENT, A DETERMINATION OF THE BEST ALTERNATIVE
STRUCTURE FOR PROVIDING COMPENSATION TO COPYRIGHT HOLDERS, OR A
PREDICTION OF THE POSSIBLE EVOLUTION IN THE RELATIONSHIP BETWEEN
ADVERTISING MARKETS AND THE TELEVISION MEDIUM, IS BEYOND THE COMPETENCE
OF THIS COURT. 

/16/  THE PRE-FORTNIGHTLY HISTORY OF EFFORTS TO UPDATE THE COPYRIGHT
ACT TO DEAL WITH TECHNOLOGICAL DEVELOPMENTS SUCH AS CATV WAS REVIEWED
IN THE FORTNIGHTLY OPINION, 392 U.S., AT 396 N. 17.  AT THAT TIME
LEGISLATIVE ACTION TO REVISE THE COPYRIGHT LAWS SO AS TO RESOLVE
COPYRIGHT PROBLEMS POSED BY CATV WAS OF SUCH APPARENT IMMINENCE THAT
THE SOLICITOR GENERAL INITIALLY SUGGESTED TO THIS COURT THAT IT DEFER
JUDICIAL RESOLUTION OF THE FORTNIGHTLY CASE IN ORDER TO ALLOW A SPEEDY
COMPLETION OF PENDING LEGISLATIVE PROCEEDINGS.  THOSE LEGISLATIVE
ACTIVITIES, HOWEVER, DID NOT BEAR FRUIT, APPARENTLY BECAUSE OF THE
DIVERSITY AND DELICACY OF THE INTERESTS AFFECTED BY THE CATV PROBLEM. 
SEE 117 CONG. REC. 2001 (1971) (REMARKS OF SEN. MC CLELLAN).  FURTHER
ATTEMPTS AT REVISION IN THE 91ST CONGRESS, S. 542, AND THE 92D
CONGRESS, S. 644, MET WITH A SIMILAR LACK OF SUCCESS.  AT PRESENT,
SENATE HEARINGS IN THE SUBCOMMITTEE ON PATENTS, TRADEMARKS AND
COPYRIGHTS HAVE BEEN HELD ON A BILL THAT WOULD AMEND THE COPYRIGHT ACT,
S. 1361, BUT THE BILL HAS NOT YET BEEN REPORTED OUT OF THAT
SUBCOMMITTEE.  A COMPANION BILL HAS BEEN INTRODUCED IN THE HOUSE OF
REPRESENTATIVES, H.R. 8186, AND REFERRED TO JUDICIARY COMMITTEE NO. 3,
BUT NO HEARINGS HAVE YET BEEN SCHEDULED. 

MR. JUSTICE BLACKMUN, DISSENTING IN PART. 

I WAS NOT ON THE COURT WHEN FORTNIGHTLY CORP. V. UNITED ARTISTS
TELEVISION, 392 U.S. 390 (1968), WAS DECIDED.  WERE THAT CASE PRESENTED
FOR THE FIRST TIME TODAY, I WOULD BE IN FULL AGREEMENT WITH WHAT MR.
JUSTICE FORTAS SAID IN DISSENT.  I WOULD JOIN HIS UNANSWERED--, AND,
FOR ME, UNANSWERABLE--RELIANCE ON MR. JUSTICE BRANDEIS' UNANIMOUS
OPINION IN BUCK V. JEWELL-LA SALLE REALTY CO., 283 U.S. 191 (1931). 
BUT FORTNIGHTLY HAS BEEN DECIDED, AND TODAY THE COURT ADHERES TO THE
PRINCIPLES IT ENUNCIATED AND TO THE SIMPLISTIC BASIS* ON WHICH IT
RESTS. 

WITH FORTNIGHTLY ON THE BOOKS, I, LIDE MR. JUSTICE DOUGLAS, WOULD
CONFINE IT "TO ITS PRECISE FACTS AND LEAVE ANY EXTENSION OR
MODIFICATION TO THE CONGRESS."  POST, AT 422.  THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT DECIDED THIS LITIGATION AS BEST IT
COULD WITH THE DIFFICULTIES INHERENT IN, AND FLOWING FROM, FORTNIGHTLY
AND THE COPYRIGHT ACT, AND WITHIN SUCH ELBOWROOM AS WAS LEFT FOR IT TO
CONSIDER THE EXPANDING TECHNOLOGY OF MODERN-DAY CATV.  JUDGE LUMBARD'S
OPINION, 476 F.2D 338, PRESENTS AN IMAGINATIVE AND WELL-REASONED
SOLUTION WITHOUT TRANSGRESSING UPON THE RESTRICTIVE PARAMETERS OF
FORTNIGHTLY.  I AM IN AGREEMENT WITH THAT OPINION AND WOULD THEREFORE
AFFIRM THE JUDGMENT. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

THE COURT TODAY MAKES AN EXTRAORDINARY EXCURSION INTO THE
LEGISLATIVE FIELD.  IN FORTNIGHTLY CORP. V. UNITED ARTISTS TELEVISION,
392 U.S. 390, THE LOWER COURTS HAD FOUND INFRINGEMENT OF THE COPYRIGHT,
BUT THIS COURT REVERSED, HOLDING THAT THE CATV SYSTEMS IN FORTNIGHTLY
WERE MERELY A "RECEPTION SERVICE," WERE "ON THE VIEWER'S SIDE OF THE
LINE," ID., AT 399, AND THEREFORE DID NOT INFRINGE THE COPYRIGHT ACT. 
THEY FUNCTIONED BY CABLE, REACHING INTO TOWNS WHICH COULD NOT RECEIVE A
TV SIGNAL DUE, SAY, TO SURROUNDING MOUNTAINS, AND EXPANDED THE REACH OF
THE TV SIGNAL BEYOND THE CONFINES OF THE AREA WHICH A BROADCASTER'S
TELECAST REACHED. 

WHATEVER ONE THINKS OF FORTNIGHTLY, WE SHOULD NOT TAKE THE NEXT STEP
NECESSARY TO GIVE IMMUNITY TO THE PRESENT CATV ORGANIZATIONS.  UNLIKE
THOSE INVOLVED IN FORTNIGHTLY, THE PRESENT CATV'S ARE FUNCTIONALLY
EQUIVALENT TO A REGULAR BROADCASTER.  TV WAVES TRAVEL IN STRAIGHT
LINES, THUS REACHING A LIMITED AREA ON THE EARTH'S CURVED SURFACE. 
THIS SCIENTIFIC FACT HAS CREATED FOR REGULATORY PURPOSES SEPARATE
TELEVISION MARKETS.  /1/  THOSE WHOSE TELECAST COVERS ONE MARKET OR
GEOGRAPHIC AREA ARE, UNDER FORTNIGHTLY, ESTOPPED FROM SAYING THAT ONE
WHO THROUGH CATV REACHES BY CABLE REMOTE HIDDEN VALLEYS IN THAT AREA,
INFRINGES THE BROADCASTER'S COPYRIGHT.  BUT THE CATV'S IN THE PRESENT
CASES GO HUNDREDS OF MILES, ERECT RECEIVING STATIONS OR TOWERS THAT
PICK UP THE PROGRAMS OF DISTANT BROADCASTERS, AND CARRY THEM BY CABLE
INTO A WHOLLY DIFFERENT AREA.     IN ANY REALISTIC PRACTICAL SENSE THE
IMPORTATION OF THESE REMOTE PROGRAMS INTO THE NEW AND DIFFERENT MARKET
IS PERFORMING A BROADCAST FUNCTION BY THE CABLE DEVICE.  RESPONDENTS IN
NO. 72 - 1628 EXERCISED THEIR COPYRIGHT PRIVILEGES AND LICENSED
PERFORMANCE OF THEIR WORKS TO PARTICULAR BROADCASTERS FOR TELECAST IN
THE DISTANT MARKET.  PETITIONERS IN THAT CASE (HEREAFTER PETITIONERS)
WERE NOT AMONG THOSE LICENSEES.  YET THEY ARE GRANTED USE OF THE
COPYRIGHT MATERIAL WITHOUT PAYMENT OF ANY FEES. 

THE COPYRIGHT ACT, 17 U.S.C. 1 (C) AND (D), GIVES THE OWNER OF A
COPYRIGHT "THE EXCLUSIVE RIGHT" TO PRESENT THE CREATION "IN PUBLIC FOR
PROFIT" AND TO CONTROL THE MANNER OR METHOD BY WHICH IT IS
"REPRODUCED."  A CATV THAT BUILDS AN ANTENNA TO PICK UP TELECASTS IN
AREA B AND THEN TRANSMITS IT BY CABLE TO AREA A IS REPRODUCING THE
COPYRIGHT WORK NOT PURSUANT TO A LICENSE FROM THE OWNER OF THE
COPYRIGHT, BUT BY THEFT.  THAT IS NOT "'"ENCOURAGEMENT TO THE
PRODUCTION OF LITERARY (OR ARTISTIC) WORKS OF LASTING BENEFIT TO THE
WORLD"'" THAT WE EXTOLLED IN MAZER V. STEIN, 347 U.S. 201, 219. 
TODAY'S DECISION IS AT WAR WITH WHAT MR. CHIEF JUSTICE HUGHES, SPEAKING
FOR THE COURT IN FOX FILM CORP. V. DOYAL, 286 U.S. 123, 130, DESCRIBED
AS THE AIM OF CONGRESS: 

" COPYRIGHT IS A RIGHT EXERCISED BY THE OWNER DURING THE TERM AT HIS
PLEASURE AND EXCLUSIVELY FOR HIS OWN PROFIT AND FORMS THE BASIS FOR
EXTENSIVE AND PROFITABLE BUSINESS ENTERPRISES.  THE ADVANTAGE TO THE
PUBLIC IS GAINED MERELY FROM THE CARRYING OUT OF THE GENERAL POLICY IN
MAKING SUCH GRANTS AND NOT FROM ANY DIRECT INTEREST WHICH THE
GOVERNMENT HAS IN THE USE OF THE PROPERTY WHICH IS THE SUBJECT OF THE
GRANTS." 

THE CATV SYSTEM INVOLVED IN THE PRESENT CASES PERFORMS SOMEWHAT LIKE
A NETWORK-AFFILIATED BROADCAST STATION WHICH IMPORTS NETWORK PROGRAMS
ORIGINATED IN DISTANT TELECAST CENTERS BY MICROWAVE, OFF-THE-AIR CABLE,
PRECISELY AS PETITIONERS DO HERE.  /2/  PETITIONERS IN PICKING UP THESE
DISTANT SIGNALS ARE NOT MANAGING A SIMPLE ANTENNA RECEPTION SERVICE. 
THEY GO HUNDREDS OF MILES FROM THE COMMUNITY THEY DESIRE TO SERVE,
ERECT A RECEIVING STATION AND THEN SELECT THE PROGRAMS FROM TV AND
RADIO STATIONS IN THAT DISTANT AREA WHICH THEY DESIRE TO DISTRIBUTE IN
THEIR OWN DISTANT MARKET.  IF "FUNCTION" IS THE KEY TEST AS FORTNIGHTLY
SAYS, THEN FUNCTIONALLY SPEAKING PETITIONERS ARE BROADCASTERS; AND
THEIR ACTS OF PIRACY ARE FLAGRANT VIOLATIONS OF THE COPYRIGHT ACT.  THE
ORIGINAL BROADCASTER IS THE LICENSOR OF HIS COPYRIGHT AND IT IS BY
VIRTUE OF THAT LICENSE THAT, SAY, A LOS ANGELES STATION IS ENABLED
LAWFULLY TO MAKE ITS BROADCASTS.  PETITIONERS RECIEVE TODAY A LICENSE
FREE IMPORTATION OF PROGRAMS FROM THE LOS ANGELES MARKET INTO
FARMINGTON, NEW MEXICO, A DISTANT SECOND MARKET.  PETITIONERS NOT ONLY
REBROADCAST THE PIRATED COPYRIGHT PROGRAMS; THEY THEMSELVES--UNLIKE
THOSE IN FORTNIGHTLY--ORIGINATE PROGRAMS AND FINANCE THEIR ORIGINAL
PROGRAMS /3/  AND THEIR PIRATED PROGRAMS BY SALES OF TIME TO
ADVERTISERS.  THAT IS THE WAY THE OWNER OF THESE COPYRIGHTED PROGRAMS
RECEIVES VALUE FOR HIS COPYRIGHTS.  CATV DOES THE SAME THING; BUT IT
MAKES ITS FORTUNE THROUGH ADVERTISING RATES BASED IN PART UPON PIRATED
COPYRIGHT PROGRAMS.  THE COURT SAYS THIS IS "A FACT OF NO DIRECT
CONCERN UNDER THE COPYRIGHT ACT"; BUT THE STATEMENT IS ITSELF THE
REFUTATION OF ITS TRUTH.  RECHANNELING BY CATV OF THE PIRATED PROGRAMS
ROBS THE COPYRIGHT OWNER OF HIS CHANCE FOR MONETARY REWARDS THROUGH
ADVERTISING RATES /4/  ON REBROADCASTS IN THE DISTANT AREA AND GIVES
THOSE MONETARY REWARDS TO THE GROUP THAT HAS PIRATED THE COPYRIGHT. 

WE ARE ADVISED BY AN AMICUS BRIEF OF THE MOTION PICTURE ASSOCIATION
THAT FILMS FROM TV TELECASTS ARE BEING IMPORTED BY CATV INTO THEIR OWN
MARKETS IN COMPETITION WITH THE SAME PICTURES LICENSED TO TV STATIONS
IN THE AREA INTO WHICH THE CATV--A NONPAYING PIRATE OF THE FILMS-
IMPORTS THEM.  IT WOULD BE DIFFICULT TO IMAGINE A MORE FLAGRANT
VIOLATION OF THE COPYRIGHT ACT.  SINCE THE COPYRIGHT ACT IS OUR ONLY
GUIDE TO LAW AND JUSTICE IN THIS CASE, IT IS DIFFICULT TO SEE WHY CATV
SYSTEMS ARE FREE OF COPYRIGHT LICENSE FEES, WHEN THEY IMPORT PROGRAMS
FROM DISTANT STATIONS AND TRANSMIT THEM TO THEIR PAYING CUSTOMERS IN A
DISTANT MARKET.  THAT RESULT READS THE COPYRIGHT ACT OUT OF EXISTENCE
FOR CATV.  THAT MAY OR MAY NOT BE DESIRABLE PUBLIC POLICY.  BUT IT IS A
LEGISLATIVE DECISION THAT NOT EVEN A RAMPANT JUDICIAL ACTIVISM SHOULD
ENTERTAIN. 

THERE IS NOTHING IN THE COMMUNICATIONS ACT THAT QUALIFIES, LIMITS,
MODIFIES, OR MAKES EXCEPTION TO THE COPYRIGHT ACT.  " NOTHING IN THIS
CHAPTER CONTAINED SHALL IN ANY WAY ABRIDGE OR ALTER THE REMEDIES NOW
EXISTING AT COMMON LAW OR BY STATUTE, BUT PROVISIONS OF THIS CHAPTER
ARE IN ADDITION TO SUCH REMEDIES."  47 U.S.C. 414.  MOREOVER THE
FEDERAL COMMUNICATIONS COMMISSION HAS REALIZED THAT IT CAN "NEITHER
RESOLVE, NOR AVOID" THE PROBLEM UNDER THE COPYRIGHT ACT, WHEN IT COMES
TO CATV.  /5/ 

ON JANUARY 14, 1974, THE CABINET COMMITTEE ON CABLE COMMUNICATIONS
HEADED BY CLAY T. WHITEHEAD MADE ITS REPORT TO THE PRESIDENT.  THAT
REPORT EMPHASIZES THE NEED FOR THE FREE FLOW OF INFORMATION IN A
SOCIETY THAT HONORS "FREEDOM FO EXPRESSION"; AND IT EMPHASIZES THAT
CATV IS A MEANS TO THAT END AND THAT CATV IS SO CLOSELY "LINKED
TO...ELECTRONIC DATA PROCESSING, TELEPHONE, TELEVISION AND RADIO
BROADCASTING, THE MOTION PICTURE AND MUSIC INDUSTRIES, AND
COMMUNICATIONS SATELLITES," ID., AT 14, AS TO REQUIRE "A CONSISTENT AND
COHERENT NATIONAL POLICY."  IBID.  THE REPORT REJECTS THE REGULATORY
FRAMEWORK OF THE FEDERAL COMMUNICATIONS COMMISSION BECAUSE IT CREATES
"THE CONSTANT DANGER OF UNWARRANTED GOVERNMENTAL INFLUENCE OR CONTROL
OVER WHAT PEOPLE SEE AND HEAR ON TELEVISION BROADCAST PROGRAMMING,"
ID., AT 20.  THE REPORT OPTS FOR A LIMITATION OF "THE NUMBER OF
CHANNELS OVER WHICH THE CABLE OPERATOR HAS CONTROL OF PROGRAM CONTENT
AND TO REQUIRE THAT THE BULK OF CHANNELS BE LEASED TO OTHERS."  IBID. 

THE REPORT RECOGNIZES THAT "COPYRIGHT LIABILITY" IS AN IMPORTANT
PHASE OF THE NEW REGULATORY PROGRAM THE COMMITTEE ENVISAGES, ID., AT
39.  THE PIRATING OF COPYRIGHTS SANCTIONED BY TODAY'S DECISION IS
ANATHEMA TO THE PHILOSOPHY OF THIS REPORT: 

" BOTH EQUITY AND THE INCENTIVES NECESSARY FOR THE FREE AND
COMPETITIVE SUPPLY OF PROGRAMS REQUIRE A SYSTEM IN WHICH PROGRAM
RETAILERS USING CABLE CHANNELS NEGOTIATE AND PAY FOR THE RIGHT TO USE
PROGRAMS AND OTHER COPYRIGHTED INFORMATION.  INDIVIDUAL OR INDUSTRY
WIDE NEGOTIATIONS FOR A LICENSE, OR RIGHT, TO USE COPYRIGHTED MATERIAL
ARE THE RULE IN ALL THE OTHER MEDIA AND SHOULD BE THE RULE IN THE CABLE
INDUSTRY. 

     " AS A MATTER OF COMMUNICATIONS POLICY, RATHER THAN COPYRIGHT

  POLICY, THE PROGRAM RETAILER WHO DISTRIBUTES TELEVISION BROADCAST

  SIGNALS IN ADDITION TO THOSE PROVIDED BY THE CABLE OPERATOR

  SHOULD BE SUBJECT TO FULL COPYRIGHT LIABILITY FOR SUCH

  RETRANSMISSIONS.  HOWEVER, GIVEN THE REASONABLE EXPECTATIONS

  CREATED BY CURRENT REGULATORY POLICY, THE CABLE OPERATOR SHOULD

 BE ENTITLED TO A NON-NEGOTIATED, BLANKET LICENSE, CONFERRED BY

  STATUTE, TO COVER HIS OWN RETRANSMISSION OF BROADCAST SIGNALS." 

  IBID. 

THE WHITEHEAD COMMISSION REPORT HAS OF COURSE NO TECHNICAL, LEGAL
BEARING ON THE ISSUE BEFORE US.  BUT IT STRONGLY INDICATES HOW
IMPORTANT TO LEGISLATION IS THE SANCTITY OF THE COPYRIGHT AND HOW
OPPOSED TO ETHICAL BUSINESS SYSTEMS IS THE PIRATING OF COPYRIGHT
MATERIALS.  THE COURT CAN REACH THE RESULT IT ACHIEVES TODAY ONLY BY
"LEGISLATING" IMPORTANT FEATURES OF THE COPYRIGHT ACT OUT OF
EXISTENCE.  AS STATED BY THE CHIEF JUSTICE IN UNITED STATES V. MIDWEST
VIDEO CORP., 406 U.S. 649, 676, " THE ALMOST EXPLOSIVE DEVELOPMENT OF
CATV SUGGESTS THE NEED OF A COMPREHENSIVE RE-EXAMINATION OF THE
STATUTORY SCHEME AS IT RELATES TO THIS NEW DEVELOPMENT, SO THAT THE
BASIC POLICIES ARE CONSIDERED BY CONGRESS AND NOT LEFT ENTIRELY TO THE
COMMISSION AND THE COURTS." 

THAT COUNSEL MEANS THAT IF WE DO NOT OVERRIDE FORTNIGHTLY, WE SHOULD
LIMIT IT TO ITS PRECISE FACTS AND LEAVE ANY EXTENSION OR MODIFICATION
TO THE CONGRESS. 

*"BROADCASTERS PERFORM.  VIEWERS DO NOT PERFORM."  392 U.S., AT 398
(FOOTNOTES OMITTED). 

/1/  THE COMMUNICATIONS ACT OF 1934, 303 (C), (D), (H), EMPOWERED
THE FCC TO: "(ASSIGN FREQUENCIES FOR EACH INDIVIDUAL STATION,"
"DETERMINE THE POWER WHICH EACH STATION SHALL USE,"  "(DETERMINE THE
LOCATION OF...INDIVIDUAL STATIONS," AND "(HAVE AUTHORITY TO ESTABLISH
AREAS OR ZONES TO BE SERVED BY ANY STATION."  47 U.S.C. 303 (C), (D),
AND (H).  PURSUANT TO THESE POWERS AND OTHERS GRANTED IT BY THE
COMMUNICATIONS ACT, THE FCC HAS SUPERVISED THE ESTABLISHMENT AND
MAINTENANCE OF A NATIONWIDE SYSTEM OF LOCAL RADIO AND TELEVISION
BROADCASTING STATIONS, EACH WITH PRIMARY RESPONSIBILITY TO A PARTICULAR
COMMUNITY. 

/2/  FARMINGTON, NEW MEXICO, INTO WHICH PETITIONERS PIPE PROGRAMS
STOLEN FROM LOS ANGELES, IS 600 MILES AWAY; AND PETITIONERS DEVELOPED
AN INTRICATE HOOKUP "VIA TWENTY-THREE STEPS OVER A ROUNDABOUT, 1300
MILE ROUTE TO (ESTABLISH THE LINK)."  SEE 355 F. SUPP. 618, 622. 

/3/ 476 F.2D 338, 346 - 347; CATV--FIRST REPORT AND ORDER, 20 F.C.C.
2D 201; UNITED STATES V. MIDWEST VIDEO CORP., 406 U.S. 649.  SEE ALSO
CABLE TELEVISION REPORT AND ORDER, 36 F.C.C. 2D 143, 148, 290; RULES RE
MICRO-WAVE SERVED CATV, 38 F.C.C.  683; RADIO SIGNALS, IMPORTATION BY
CABLE TELEVISION, 36 F.C.C. 2D 630. 

/4/  WE SUSTAINED THE COMMISSION'S AUTHORITY TO REQUIRE CATV TO
ORIGINATE PROGRAMS IN A 5 - 4 DECISION IN 1972.  UNITED STATES V.
MIDWEST VIDEO CORP., SUPRA. 

/5/  THE SOLICITOR GENERAL IN HIS MEMORANDUM IN THE FORTNIGHTLY CASE
URGED THAT THE CABLE TRANSMISSION OF OTHER STATIONS' PROGRAMS INTO
DISTANT MARKETS BE SUBJECT TO COPYRIGHT PROTECTION: 

"(MUCH OF THE ADVERTISING WHICH ACCOMPANIES THE PERFORMANCE OF
COPYRIGHTED WORKS, SUCH AS MOTION PICTURES, IS DIRECTED SOLELY AT
POTENTIAL VIEWERS WHO ARE WITHIN THE STATION'S NORMAL SERVICE AREA-
'LOCAL' ADVERTISING AND 'NATIONAL SPOT' ADVERTISING BOTH FALL WITHIN
THAT CATEGORY.  SUCH ADVERTISERS DO NOT NECESSARILY DERIVE ANY
SIGNIFICANT COMMERCIAL BENEFIT FROM CATV CARRIAGE OF THE SPONSORED
PROGRAMS OUTSIDE OF THE MARKET ORDINARILY SERVED BY THE PARTICULAR
STATION, AND ACCORDINGLY MAY BE UNWILLING TO PAY ADDITIONAL AMOUNTS FOR
SUCH EXPANDED COVERAGE."  MEMORANDUM FOR THE UNITED STATES AS AMICUS
CURIAE IN NO. 618, O.T. 1967, P. 10. 

ROBERT C. BARNARD ARGUED THE CAUSE FOR PETITIONERS IN NO. 72 - 1628
AND FOR RESPONDENTS IN NO. 72 - 1633.  WITH HIM ON THE BRIEFS WERE R.
MICHAEL DUNCAN, CHARLES F. LETTOW, AND DAVID Z. ROSENSWEIG. 

ASA D. SOKOLOW AND SEYMOUR GRAUBARD ARGUED THE CAUSE FOR RESPONDENTS
IN NO. 72 - 1628 AND FOR PETITIONERS IN NO. 72 - 1633.  WITH THEM ON
THE BRIEFS WERE CHARLES H. MILLER, ROYAL E. BLAKEMAN, BERTRAND H.
WEIDBERG, AND EUGENE Z. DU BOSE. 

STEVEN R. RIVKIN AND PETER H. SCHUCK FILED A BRIEF FOR THE CONSUMERS
UNION OF THE UNITED STATES, INC., ET AL., AS AMICI CURIAE IN BOTH
CASES.  BRIEFS OF AMICI CURIAE IN NO. 72 - 1628 WERE FILED BY BERNARD
G. SEGAL, IRA P. TIGER, AND CORYDON B. DUNHAM FOR THE NATIONAL
BROADCASTING CO., INC.; BY STUART FELDSTEIN AND STEPHEN A. GOLD FOR THE
NATIONAL CABLE TELEVISION ASSN.; BY IRWIN KARP FOR THE AUTHORS LEAGUE
OF AMERICA, INC.; BY PAUL P. SELVIN, WILLIAM BERGER, AND WILLIAM B.
HAUGHTON FOR THE WRITERS GUILD OF AMERICA ET AL.; AND BY LOUIS NIZER,
GERALD MEYER, GERALD F. PHILLIPS, ARTHUR SCHEINER, AND ROBERT D. HADL
FOR THE MOTION PICTURE ASSOCIATION OF AMERICA, INC., ET AL. HERMAN
FINKELSTEIN FILED A BRIEF FOR THE AMERICAN SOCIETY OF COMPOSERS,
AUTHORS, AND PUBLISHERS AS AMICUS CURIAE IN NO. 72 - 1633. 
..END :




GRANNY GOOSE FOODS, INC. V. TEAMSTERS, 415 U.S. 423 


       GRANNY GOOSE FOODS, INC., ET AL. V.

        BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS, LOCAL NO. 70

        OF ALAMEDA COUNTY, INTERNATIONAL BROTHERHOOD OF

         TEAMSTERS.  CHAUFFEURS, WAREHOUSEMEN & HELPERS OF

           AMERICA

        CERTIORARI TO THE UNITED STATES

        COURT OF APPEALS FOR THE NINTH CIRCUIT

    NO. 72 - 1566 ARGUED JANUARY 8, 1974--, DECIDED MARCH 4,

           1974; 472 F. 2D 764 AFFIRMED. 


    PETITIONER EMPLOYERS BROUGHT SUIT IN CALIFORNIA STATE COURT

  ALLEGING THAT RESPONDENT UNION WAS ENGAGING IN A STRIKE IN BREACH

  OF COLLECTIVE-BARGAINING AGREEMENTS.  THE COURT ISSUED A

  TEMPORARY RESTRAINING ORDER ON MAY 18, 1970.  TWO DAYS LATER THE

  CASE WAS REMOVED TO FEDERAL COURT, AND ON JUNE 4 THE DISTRICT

  COURT DENIED THE UNION'S MOTION TO DISSOLVE THE RESTRAINING

  ORDER.  STRIKE ACTIVITY THEN STOPPED AND THE LABOR DISPUTE

  REMAINED DORMANT UNTIL THE UNION, AFTER THE PETITIONERS HAD

  REFUSED TO BARGAIN, RESUMED ITS STRIKE ON NOVEMBER 30, 1970.  TWO

  DAYS LATER THE DISTRICT COURT, ON PETITIONERS' MOTION, HELD THE

  UNION IN CRIMINAL CONTEMPT FOR VIOLATING THE RESTRAINING ORDER. 

  THE COURT OF APPEALS REVERSED ON THE GROUND THAT THE ORDER HAD

  EXPIRED LONG BEFORE NOVEMBER 30, 1970, REASONING THAT UNDER BOTH

  STATE LAW AND FED. RULE CIV. PROC. 65 (B) THE ORDER EXPIRED NO

  LATER THAN JUNE 7, 1970, 20 DAYS AFTER ITS ISSUANCE, AND

  REJECTING PETITIONERS'  CONTENTION THAT THE LIFE OF THE ORDER WAS

  INDEFINITELY PROLONGED BY 28 U.S.C. 1450 "UNTIL DISSOLVED OR

  MODIFIED BY THE DISTRICT COURT."  HELD: 

     1.  WHETHER STATE LAW OR RULE 65 (B) IS CONTROLLING, THE

  RESTRAINING ORDER EXPIRED LONG BEFORE THE DATE OF THE ALLEGED

  CONTEMPT, SINCE UNDER THE STATE CODE OF CIVIL PROCEDURE A

  TEMPORARY RESTRAINING ORDER IS RETURNABLE NO LATER THAN 15 DAYS

  FROM ITS DATE, 20 DAYS IF GOOD CAUSE IS SHOWN, AND MUST BE

  DISSOLVED UNLESS THE PARTY OBTAINING IT PROCEEDS TO SUBMIT ITS

  CASE FOR A PRELIMINARY INJUNCTION, AND SIMILARLY, UNDER RULE 65

  (B), SUCH AN ORDER MUST EXPIRE BY ITS OWN TERMS WITHIN 10 DAYS

  AFTER ENTRY, 20 DAYS IF GOOD CAUSE IS SHOWN.  PP. 431 - 433. 

     2.  SECTION 1450 WAS NOT INTENDED TO GIVE STATE COURT

  INJUNCTIONS GREATER EFFECT AFTER REMOVAL TO FEDERAL COURT THAN

  THEY WOULD HAVE HAD IF THE CASE HAD REMAINED IN STATE COURT, AND

  IT SHOULD BE CONSTRUED IN A MANNER CONSISTENT WITH THE TIME

  LIMITATIONS OF RULE 65 (B).  PP. 434 - 440. 

     (A) ONCE A CASE HAS BEEN REMOVED TO FEDERAL COURT, FEDERAL
LAW,

  INCLUDING THE FEDERAL RULES OF CIVIL PROCEDURE, CONTROLS THE

  FUTURE COURSE OF PROCEEDINGS, NOTWITHSTANDING STATE COURT ORDERS

  ISSUED PRIOR TO REMOVAL.  THE UNDERLYING PURPOSE OF 1450 (TO

ENSURE THAT NO LAPSE IN A STATE COURT TEMPORARY RESTRAINING ORDER

  WILL OCCUR SIMPLY BY REMOVING THE CASE TO FEDERAL COURT) AND THE

  POLICIES REFLECTED IN THE TIME LIMITATIONS OF RULE 65 (B)

  (STRINGENT RESTRICTIONS ON THE AVALIABILITY OF EX PARTE

  RESTRAINING ORDERS) CAN BE ACCOMMODATED BY APPLYING THE RULE THAT

  SUCH A STATE COURT PRE-REMOVAL ORDER REMAINS IN FORCE AFTER

  REMOVAL NO LONGER THAN IT WOULD HAVE REMAINED IN EFFECT UNDER

  STATE LAW, BUT IN NO EVENT LONGER THAN THE RULE 65 (B) TIME

  LIMITATIONS, MEASURED FROM THE DATE OF REMOVAL.  PP. 435 - 440. 

     (B) ACCORDINGLY, THE ORDER EXPIRED BY ITS TERMS ON MAY 30,

1970, UNDER THE 10-DAY LIMITATION OF RULE 65 (B) APPLIED FROM THE

  DATE OF REMOVAL; HENCE NO ORDER WAS IN EFFECT ON NOVEMBER 30,

  1970, AND THE UNION VIOLATED NO ORDER WHEN IT RESUMED ITS STRIKE

  AT THAT TIME.  PP. 440. 

     3.  THE DISTRICT COURT'S DENIAL OF THE UNION'S MOTION TO

  DISSOLVE THE RESTRAINING ORDER DID NOT EFFECTIVELY CONVERT THE

  ORDER INTO A PRELIMINARY INJUNCTION OF UNLIMITED DURATION.  PP.

  440 - 445. 

     (A) THAT THE UNION MAY HAVE HAD THE OPPORTUNITY TO BE HEARD ON

  THE MERITS OF THE PRELIMINARY INJUNCTION WHEN IT MOVED TO

  DISSOLVE THE RESTRAINING ORDER IS NOT THE CONTROLLING FACTOR,

  SINCE UNDER RULE 65 (B) THE BURDEN WAS ON PETITIONERS TO SHOW

  THAT THEY WERE ENTITLED TO A PRELIMINARY INJUNCTION, NOT ON THE

UNION TO SHOW THAT THEY WERE NOT.  PP. 442 - 443. 

     (B) WHERE A COURT INTENDS TO SUPPLANT A TEMPORARY RESTRAINING

  ORDER, WHICH UNDER RULE 65 (B) EXPIRES BY ITS OWN TERMS WITHIN 10

  DAYS OF ISSUANCE, WITH A PRELIMINARY INJUNCTION OF UNLIMITED

  DURATION PENDING A FINAL DECISION ON THE MERITS OR FURTHER ORDER

  OF THE COURT, IT SHOULD ISSUE AN ORDER CLEARLY SAYING SO, AND

  WHERE IT HAS NOT DONE SO, A PARTY AGAINST WHOM A TEMPORARY

  RESTRAINING ORDER HAS ISSUED MAY REASONABLY ASSUME THAT THE ORDER

  HAS EXPIRED WITHIN RULE 65 (B)'S TIME LIMITS.  HERE, SINCE THE

  ONLY ORDERS ENTERED WERE A TEMPORARY RESTRAINING ORDER AND AN

  ORDER DENYING A MOTION TO DISSOLVE THE TEMPORARY ORDER, THE UNION

  HAD NO REASON TO BELIEVE THAT A PRELIMINARY INJUNCTION OF

  UNLIMITED DURATION HAD BEEN ISSUED.  PP. 443 - 445. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, WHITE, AND BLACKMUN, JJ., JOINED.  REHNQUIST,

  J., FILED AN OPINION CONCURRING THE JUDGMENT, IN WHICH BURGER,

  C.J., AND STEWART AND POWELL, J J., JOINED, POST, P. 445. 

MR. JUSTICE MARSHALL DELIEVERED THE OPINION OF THE COURT 

THIS CASE CONCERNS THE INTERPRETATION OF 28 U.S.C. 1450, /1/  WHICH
PROVIDES IN PERTINENT PART:  WHENEVER ANY ACTION IS REMOVED FROM A
STATE COURT TO A DISTRICT COURT OF THE UNITED STATES ... (ALL
INJUNCTIONS, ORDERS, AND OTHER PROCEEDINGS HAD IN SUCH ACTION PRIOR TO
ITS REMOVAL SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL DISSOLVED OR
MODIFIED BY THE DISTRICT COURT."  THE DISTRICT COURT HELD RESPONDENT
UNION IN CRIMINAL CONTEMPT FOR VIOLATING A TEMOPRARY RESTRAINING ORDER
ISSUED BY THE CALIFORNIA SUPERIOR COURT ON MAY 18, 1970, PRIOR TO THE
REMOVAL OF THE CASE FROM THE SUPERIOR COURT TO THE DISTRICT COURT.  THE
COURT OF APPEALS REVERSED, ONE JUDGE DISSENTING, ON THE GROUND THAT THE
TEMPORARY RESTRAINING ORDER HAD EXPIRED LONG BEFORE NOVEMBER 30, 1970,
THE DATE OF THE ALLEDGED COMTEMPT.  472 F.2D 764 (CA 1973) THE COURT
REASONED THAT UNDER BOTH 527 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
AND FED. RULE CIV. PROC. 65 (B), THE TEMPORARY RESTRAINING ORDER MUST
HAVE EXPIRED NO LATER THAN JUNE 7, 1970, 20 DAYS AFTER ITS ISSUANCE. 
THE COURT REJECTED PETITIONERS' CONTENTION THAT THE LIFE OF THE ORDER
WAS INDEFINITELY PROLONGED BY 1450 "UNTIL DISSOLVED OR MODIFIED BY THE
DISTRICT COURT," HOLDING THAT THE PURPOSE OF THAT STATUTE "IS TO
PREVENT A BREAK IN THE FORCE OF AN INJUNCTION OR A RESTRAINING ORDER
THAT COULD OTHERWISE OCCUR WHEN JURISDICTION IS BEING SHIFTED,"  472
F.2D, AT 767, NOT TO "CREATE A SPECIAL BREED OF TEMPORARY RESTRAINING
ORDERS THAT SURVIVE BEYOND THE LIFE SPAN IMPOSED BY THE STATE LAW FROM
WHICH THEY SPRING AND BEYOND THE LIFE THAT THE DISTRICT COURT COULD
HAVE GRANTED THEM HAD THE ORDERS INITIATED FROM THE FEDERAL COURT." 
ID., AT 766. 

AS THIS UNDERSTANDING OF THE STATUTE WAS IN CONFLICT WITH DECISIONS
OF TWO OTHER CIRCUITS INTERPRETING 1450 TO PRECLUDE THE AUTOMATIC
TERMINATION OF STATE COURT TEMPORARY RESTRAINING ORDERS, /2/  WE
GRANTED CERTIORARI.  414 U.S. 816 (1973).  FINDING OURSELVES IN
SUBSTANTIAL AGREEMENT WITH THE ANALYSIS OF THE NINTH CIRCUIT IN THE
PRESENT CASE, WE AFFIRM. 

        I 

ON MAY 15, 1970, PETITIONERS GRANNY GOOSE FOODS, INC., AND SUNSHINE
BISCUITS, INC., FILED A COMPLAINT IN THE SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA ALLEGING THAT RESPONDENT, A LOCAL TEAMSTERS
UNION, AND ITS OFFICERS AND AGENTS, WERE ENGAGING IN STRIKE ACTIVITY IN
BREACH OF NATIONAL AND LOCAL COLLECTIVE-BARGAINING AGREEMENTS RECENTLY
NEGOTIATED BY MULTIUNION-MULTIEMPLOYER BARGAINING TEAMS.  ALTHOUGH THE
EXACT NATURE OF THE UNDERLYING LABOR DISPUTE IS UNCLEAR, ITS BASIC
CONTOURS ARE AS FOLLOWS: THE UNION WAS UNWILLING TO COMPLY WITH CERTAIN
CHANGES INTRODUCED IN THE NEW CONTRACTS; IT BELIEVED IT WAS NOT LEGALLY
BOUND BY THE NEW AGREEMENTS BECAUSE IT HAD NOT BEEN A PART OF THE
MULTIUNION BARGAINING UNITS THAT NEGOTIATED THE CONTRACTS; /3/  AND IT
WANTED TO NEGOTIATE SEPARATE CONTRACTS WITH PETITIONER EMPLOYERS. 

THE SAME DAY THE COMPLAINT WAS FILED, THE SUPERIOR COURT ISSUED A
TEMPORARY RESTRAINING ORDER ENJOINING ALL EXISTING STRIKE ACTIVITY AND
ORDERING THE DEFENDANTS TO SHOW CAUSE ON MAY 26, 1970, WHY A
PRELIMINARY INJUNCTION SHOULD NOT ISSUE DURING THE PENDENCY OF THE
SUIT.  AN AMENDED COMPLAINT ADDING PETITIONER STANDARD BRANDS, INC.,
WAS FILED ON MAY 18, AND A MODIFIED TEMPORARY RESTRAINING ORDER WAS
ISSUED THAT SAME DAY ADDING A PROHIBITION AGAINST STRIKE ACTIVITIES
DIRECTED TOWARD THAT EMPLOYER.  ON MAY 19, 1970, AFTER HAVING BEEN
SERVED WITH THE MAY 15 RESTRAINING ORDER BUT BEFORE THE SCHEDULED
HEARING ON THE ORDER TO SHOW CAUSE, THE UNION AND THE INDIVIDUAL
DEFENDANTS REMOVED THE PROCEEDING TO THE DISTRICT COURT ON THE GROUND
THAT THE ACTION AROSE UNDER 301 OF THE LABOR MANAGEMENT RELATIONS ACT,
1947, 61 STAT. 156, 29 U.S.C. 185.  /4/  ON MAY 20, 1970, AN AMENDED
REMOVAL PETITION WAS FILED TO TAKE INTO ACCOUNT THE MODIFIED TEMPORARY
RESTRAINING ORDER OF MAY 18, 

SIMULTANEOUSLY WITH THE FILING OF THE REMOVAL PETITION, THE
DEFENDANTS FILED A MOTION IN THE DISTRICT COURT TO DISSOLVE THE
TEMPORARY RESTRAINING ORDER.  THE SOLE GROUND ALLEGED IN SUPPORT OF THE
MOTION WAS THAT THE DISTRICT COURT LACKED JURISDICTION TO MAINTAIN THE
RESTRAINING ORDER UNDER THIS COURT'S DECISION IN SINCLAIR REFINING CO.
V. ATKINSON, 370 U.S. 195 (1962), WHERE THE COURT HELD THAT
NOTWITHSTANDING 301'S GRANT OF JURISDICTION TO FEDERAL COURTS OVER
SUITS BETWEEN EMPLOYERS AND UNIONS FOR BREACH OF COLLECTIVE-BARGAINING
AGREEMENTS, 4 OF THE NORRIS-LA GUARDIA ACT, 47 STAT. 70, 29 U.S.C. 104,
BARRED FEDERAL COURTS FROM ISSUING AN INJUNCTION AGAINST A STRIKE
ALLEGEDLY IN VIOLATION OF A COLLECTIVE-BARGAINING AGREEMENT CONTAINING
A NO-STRIKE CLAUSE. 

THE EMPLOYERS THEN FILED A MOTION TO REMAND THE CASE TO THE SUPERIOR
COURT, ALLEGING THAT THE DEFENDANTS HAD WAIVED THEIR RIGHT TO REMOVAL
BY SUBMITTING TO THE JURISDICTION OF THE STATE COURT.  THE UNION'S
MOTION TO DISSOLVE AND THE EMPLOYERS' MOTION TO REMAND CAME ON FOR A
HEARING ON MAY 27, 1970.  THE MOTION TO REMAND WAS DENIED FROM THE
BENCH.  WITH RESPECT TO THE MOTION TO DISSOLVE, THE EMPLOYERS BROUGHT
TO THE ATTENTION OF THE DISTRICT COURT OUR GRANT OF CERTIORARI IN BOYS
MARKETS V. RETAIL CLERKS UNION, 396 U.S. 1000 (1970), WHICH WAS
INTERPRETED AS AN INDICATION THAT THE COURT WOULD RE-EXAMINE ITS
HOLDING IN SINCLAIR.  AS BOYS MARKETS HAD BEEN ARGUED HERE IN APRIL
1970, THE DISTRICT COURT REFRAINED FROM TAKING ANY ACTION ON THE MOTION
TO DISSOLVE UNTIL IT RECEIVED FURTHER GUIDANCE FROM THIS COURT.  ON
JUNE 1, 1970, WE HANDED DOWN OUR DECISION IN BOYS MARKETS V. RETAIL
CLERKS UNION, 398 U.S. 235, OVERRULING SINCLAIR AND HOLDING THAT A
DISTRICT COURT COULD ENJOIN A STRIKE IN BREACH OF A NO-STRIKE CLAUSE IN
A COLLECTIVE-BARGAINING AGREEMENT AND ORDER ARBITRATION UNDER THE
AGREEMENT.  THREE DAYS LATER, ON JUNE 4, 1970, THE DISTRICT COURT
ENTERED A BRIEF ORDER DENYING THE MOTION TO DISSOLVE THE STATE COURT
TEMPORARY RESTRAINING ORDER, CITING BOYS MARKETS. 

EVIDENTLY PICKETING AND STRIKE ACTIVITY STOPPED AND THE LABOR
DISPUTE REMAINED DORMANT AFTER JUNE 4.  THE FLAME WAS REKINDLED,
HOWEVER, WHEN ON NOVEMBER 9, 1970, THE UNION SENT THE EMPLOYERS
TELEGRAMS REQUESTING BARGAINING TO ARRIVE AT A COLLECTIVE-BARGAINING
AGREEMENT AND EXPRESSING THE UNION'S CONTINUED BELIEF THAT IT WAS NOT
BOUND BY THE NATIONAL AND LOCAL AGREEMENTS NEGOTIATED BY THE MULTIUNION
MULTIEMPLOYER GROUPS.  THE EMPLOYERS ANSWERED THAT THERE WAS NO NEED TO
BARGAIN BECAUSE, IN THEIR VIEW, THE UNION WAS BOUND BY THE NATIONAL AND
LOCAL AGREEMENTS.  THE CONFLICT REMAINED UNRESOLVED, AND ON NOVEMBER
30, 1970, THE UNION COMMENCED ITS STRIKE ACTIVITY ONCE AGAIN. 

THE NEXT DAY THE EMPLOYERS MOVED THE DISTRICT COURT TO HOLD THE
UNION, ITS AGENTS, AND OFFICERS IN CONTEMPT OF THE MODIFIED TEMPORARY
RESTRAINING ORDER ISSUED BY THE SUPERIOR COURT ON MAY 18.  A HEARING
WAS HELD ON THE MOTION THE FOLLOWING DAY.  THE UNION'S ARGUMENT THAT
THE TEMPORARY RESTRAINING ORDER HAD LONG SINCE EXPIRED WAS REJECTED BY
THE DISTRICT COURT ON TWO GROUNDS.  FIRST, THE COUJRT CONCLUDED THAT
ITS EARLIER ACTON DENYING THE MOTION TO DISSOLVE THE TEMPORARY
RESTRAINING ORDER GAVE THE ORDER CONTINUING FORCE AND EFFECT.  SECOND,
THE COURT FOUND THAT 1450 ITSELF SERVED TO CONTINUE THE RESTRAINING
ORDER IN EFFECT UNTIL AFFIRMATIVELY DISSOLVED OR MODIFIED BY THE
COURT.  CONCLUDING AFTER THE HEARING THAT THE UNION HAD WILLFULLY
VIOLATED THE RESTRAINING ORDER, THE DISTRICT COURT HELD IT IN CRIMINAL
CONTEMPT AND IMPOSED A FINE OF $200,000.  /5/

        II 

LEAVING ASIDE FOR THE MOMENT THE QUESTION WHETHER THE ORDER DENYING
THE MOTION TO DISSOLVE THE TEMPORARY RESTRAINING ORDER WAS EFFECTIVELY
THE GRANT OF A PRELIMINARY INJUNCTION, IT IS CLEAR THAT WHETHER
CALFORNIA LAW OR RULE 65 (B) IS CONTROLLING, THE TEMPORARY RESTRAINING
ORDER ISSUED BY THE SUPERIOR COURT EXPIRED LONG BEFORE THE DATE OF THE
ALLEGED CONTEMPT.  SECTION 527 OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE, /6/  UNDER WHICH THE ORDER WAS ISSUED, PROVIDES THAT
TEMPORARY RESTRAINING ORDERS MUST BE RETURNABLE NO LATER THAN 15 DAYS
FROM THE DATE OF THE ORDER, 20 DAYS IF GOOD CAUSE IS SHOWN, AND UNLESS
THE PARTY OBTAINING THE ORDER THEN PROCEEDS TO SUBMIT ITS CASE FOR A
PRELIMINARY INJUNCTION, THE TEMPORARY RESTRAINING ORDER MUST BE
DISSOLVED.  /7/  SIMILARLY, UNDER RULE 65(B), /8/  TEMPORARY
RESTRAINING ORDERS MUST EXPIRE BY THEIR OWN TERMS WITH 10 DAYS AFTER
ENTRY, 20 DAYS IF GOOD CAUSE IS SHOWN. 

PETITIONERS ARGUE, HOWEVER, THAT NOTWITHSTANDING THE TIME
LIMITATIONS OF STATE LAW, 1450 KEEPS ALL STATE COURT INJUNCTIONS,
INCLUDING EX PARTE TEMPORARY RESTRAINING ORDERS, IN FULL FORCE AND
EFFECT AFTER REMOVAL UNTIL AFFIRMATIVELY DISSOLVED OR MODIFIED BY THE
DISTRICT COURT.  TO EXTENT THIS READING OF 1450 IS INCONSISTENT WITH
THE TIME LIMITATIONS OF RULE 65 (B), PETITIONERS CONTEND THE STATUTE
MUST CONTROL. 

IN OUR VIEW, HOWEVER, 1450 CAN AND SHOULD BE INTERPRETED IN A MANNER
WHICH FULLY SERVES ITS UNDERLYING PURPOSES, YET AT THE SAME TIME PLACES
IT IN HARMONY WITH THE IMPORTANT CONGRESSIONAL POLICIES REFLECTED IN
THE TIME LIMITATIONS IN RULE 65 (B). 

AT THE OUTSET, WE CAN FIND NO BASIS FOR PETITIONERS'  ARGUMENT THAT
1450 WAS INTENDED TO TURN EX PARTE STATE COURT TEMPORARY RESTRAINING
ORDERS OF LIMITED DURATION INTO FEDERAL COURT INJUNCTIONS OF UNLIMITED
DURATION.  SECTION 1450 WAS SIMPLY DESIGNED TO DEAL WITH THE UNIQUE
PROBLEM OF A SHIFT IN JURISDICTION IN THE MIDDLE OF A CASE WHICH ARISES
WHENEVER CASES ARE REMOVED FROM STATE TO FEDERAL COURT.  IN THIS
RESPECT TWO BASIC PURPOSES ARE SERVED.  JUDICIAL ECONOMY IS PROMOTED BY
PROVIDING THAT PROCEEDINGS HAD IN STATE COURT SHALL HAVE FORCE AND
EFFECT IN FEDERAL COURT, SO THAT PLEADINGS FILED IN STATE COURT, FOR
EXAMPLE, NEED NOT BE DUPLICATED IN FEDERAL COURT.  /9/  IN ADDITION,
THE STATUTE ENSURES THAT INTERLOCUTORY ORDERS ENTERED BY THE STATE
COURT TO PROTECT VARIOUS RIGHTS OF THE PARTIES WILL NOT LAPSE UPON
REMOVAL.  THUS ATTACHMENTS, SEQUESTRATIONS, BONDS, UNDERTAKINGS,
SECURITIES, INJUNCTIONS, AND OTHER ORDERS OBTAINED IN STATE COURT ALL
REMAIN EFFECTIVE AFTER THE CASE IS REMOVED TO FEDERAL COURT. 

BUT WHILE CONGRESS CLEARLY INTENDED TO PRESERVE THE EFFECTIVENESS OF
STATE COURT ORDERS AFTER REMOVAL, THERE IS NO BASIS FOR BELIEVING THAT
1450 WAS DESIGNED TO GIVE INJUNCTIONS OR OTHER ORDERS GREATER EFFECT
AFTER REMOVAL TO FEDERAL COURT THAN THEY WOULD HAVE HAD IF THE CASE HAD
REMAINED IN STATE COURT.  AFTER REMOVAL, THE FEDERAL COURT "TAKES THE
CASE UP WHERE THE STATE COURT LEFT IT OFF."  DUNCAN V. GEGAN, 101 U.S.
810, 812 (1880).  THE "FULL FORCE AND EFFECT" PROVIDED STATE COURT
ORDERS AFTER REMOVAL OF THE CASE TO FEDERAL COURT WAS NOT INTENDED TO
BE MORE THAN THE FORCE AND EFFECT THE ORDERS WOULD HAVE HAD IN STATE
COURT.  /10/ 

MORE IMPORTANTLY, ONCE A CASE HAS BEEN REMOVED TO FEDERAL COURT, IT
IS SETTLED THAT FEDERAL RATHER THAN STATE LAW GOVERNS THE FUTURE COURSE
OF PROCEEDINGS, NOTWITHSTANDING STATE COURT ORDERS ISSUED PRIOR TO
REMOVAL.  SECTION 1450 IMPLIES AS MUCH BY RECOGNIZING THE DISTRICT
COURT'S AUTHORITY TO DISSOLVE OR MODIFY INJUNCTIONS, ORDERS, AND ALL
OTHER PROCEEDINGS HAD IN STATE COURT PRIOR TO REMOVAL.  THIS COURT
RESOLVED THIS ISSUE LONG AGO IN EX PARTE FISK, 113 U.S. 713 (1885). 
THERE IT WAS ARGUED THAT AN ORDER TO TAKE THE DEPOSITION OF A WITNESS
ISSUED BY THE STATE COURT PRIOR TO REMOVAL WAS BINDING IN FEDERAL COURT
AND COULD NOT BE RECONSIDERED BY THE FEDERAL COURT, NOTWITHSTANDING ITS
INCONSISTENCY WITH CERTAIN FEDERAL STATUTES GOVERNING PROCEDURE IN
FEDERAL COURTS.  THE COURT REJECTED THIS CONTENTION, AND SAID THAT THE
PREDECESSOR OF 1450 

"DECLARES ORDERS OF THE STATE COURT, IN A CASE AFTERWARDS REMOVED,
TO BE IN FORCE UNTIL DISSOLVED OR MODIFIED BY THE CIRCUIT COURT.  THIS
FULLY RECOGNIZES THE POWER OF THE LATTER COURT OVER SUCH ORDERS.  AND
IT WAS NOT INTENDED TO ENACT THAT AN ORDER MADE IN THE STATE COURT,
WHICH AFFECTED OR MIGHT AFFECT THE MODE OF TRIAL YET TO BE HAD, COULD
CHANGE OR MODIFY THE EXPRESS DIRECTIONS OF AN ACT OF CONGRESS ON THAT
SUBJECT. 

     THE PETITIONER HAVING REMOVED HIS CASE INTO THE CIRCUIT COURT

  HAS A RIGHT TO HAVE ITS FURTHER PROGRESS GOVERNED BY THE LAW OF

  THE LATTER COURT, AND NOT BY THAT OF THE COURT FROM WHICH IT WAS

  REMOVED; AND IF ONE OF THE ADVANTAGES OF THIS REMOVAL WAS AN

  ESCAPE FROM THIS EXAMINATION, HE HAS A RIGHT TO THAT BENEFIT IF

  HIS CASE WAS RIGHTFULLY REMOVED."  ID., AT 725 - 726. 

SEE ALSO KING V. WORTHINGTON, 104 U.S. 44 (1881); FREEMAN V. BEE
MACHINE CO., 319 U.S. 448 (1943). 

BY THE SAME TOKEN, RESPONDENT UNION HAD A RIGHT TO THE PROTECTIONS
OF THE TIME LIMITATION IN RULE 65 (B) ONCE THE CASE WAS REMOVED TO THE
DISTRICT COURT.  THE FEDERAL RULES OF CIVIL POCEDURE, LIKE OTHER
PROVISIONS OF FEDERAL LAW, GOVERN THE MODE OF PROCEEDINGS IN FEDERAL
COURT AFTER REMOVAL.  SEE FED. RULE CIV. PROC. 81 (C).  /11/  IN
ADDITION, WE MAY NOTE THAT ALTHOUGH THE DURATIONAL LIMITATIONS IMPOSED
ON EX PARTE RESTRAINING ORDERS ARE NOW CODIFIED IN A FEDERAL RULE, THEY
HAD THEIR ORIGIN IN 17 OF THE CLAYTON ACT OF 1914, 38 STAT. 737.  AS
THE HOUSE REPORT RECOMMENDING ITS ENACTMENT EMPHASIZED, THE DURATIONAL
AND OTHER LIMITATIONS IMPOSED ON TEMPORARY RESTRAINING ORDERS WERE
THOUGHT NECESSARY TO CURE A SERIOUS PROBLEM OF "ILL-CONSIDERED
INJUNCTIONS WITHOUT NOTICE."  /12/  THE STRIGENT RESTRICTIONS IMPOSED
BY 17, AND NOW BY RULE 65, /13/  ON THE AVALIABILITY OF EX PARTE
TEMPORARY RESTRAINING ORDERS REFLECT THE FACT THAT OUR ENTIRE
JURISPRUDENCE RUNS COUNTER TO THE NOTION OF COURT ACTION TAKEN BEFORE
REASONABLE NOTICE AND AN OPPORTUNITY TO BE HEARD HAS BEEN GRANTED BOTH
SIDES OF A DISPUTE.  EX PARTE TEMPORARY RESTRAINING ORDERS ARE NO DOUBT
NECESSARY IN CERTAIN CIRCUMSTANCES, CF. CARROLL V. PRESIDENT AND
COMM'RS OF PRINCESS ANNE, 393 U.S. 175, 180 (1968), BUT UNDER FEDERAL
LAW THEY SHOULD BE RESTRICTED TO SERVING THEIR UNDERLYING PURPOSE OF
PRESERVING THE STATUS QUO AND PREVENTING IRREPARABLE HARM JUST SO LONG
AS IS NECESSARY TO HOLD A HEARING, AND NO LONGER.  /14/ 

WE CAN FIND NO INDICATION THAT CONGRESS INTENDED 1450 AS AN
EXCEPTION TO ITS BROADER, LONGSTANDING POLICY OF RESTRICTING THE
DURATION OF EX PARTE RESTRAINING ORDERS.  THE UNDERLYING PURPOSE OF
1450--ENSURING THAT NO LAPSE IN A STATE COURT TEMPORARY RESTRAINING
ORDER WILL OCCUR SIMPLY BY REMOVING THE CASE TO FEDERAL COURT--AND THE
POLICIES REFLECTED IN RULE 65 (B) CAN EASILY BE ACCOMMODATED BY
APPLYING THE FOLLOWING RULE: AN EX PARTE TEMPORARY RESTRAINING ORDER
ISSUED BY A STATE COURT PRIOR TO REMOVAL REMAINS IN FORCE AFTER REMOVAL
NO LONGER THAN IT WOULD HAVE REMAINED IN EFFECT UNDER STATE LAW, BUT IN
NO EVENT DOES THE ORDER REMAIN IN FORCE LONGER THAN THE TIME
LIMITATIONS IMPOSED BY RULE 65 (B), MEASURED FROM THE DATE OF REMOVAL. 
/15/ 

APPLYING OUR HOLDING TO THE PRESENT CASE IS SIMPLE.  THE TEMPORARY
RESTRAINING ORDER WAS ISSUED BY THE SUPERIOR COURT ON MAY 18, 1970, AND
WOULD HAVE REMAINED IN EFFECT IN THE STATE COURT NO LONGER THAN 15
DAYS, OR UNTIL JUNE 2.  THE CASE WAS REMOVED TO FEDERAL COURT ON MAY
20, 1970.  THE TEMPORARY RESTRAINING ORDER THEREFORE EXPIRED ON MAY 30,
1970, APPLYING THE 10-DAY LIMITATION OF RULE 65 (B) FROM THE DATE OF
REMOVAL.  ACCORDINGLY, NO ORDER WAS IN EFFECT ON NOVEMBER 30, 1970, AND
THE UNION VIOLATED NO ORDER WHEN IT RESUMED ITS STRIKE AT THAT TIME. 

  III 

WE NOW TURN TO PETITIONERS' ARGUMENT THAT, APART FROM THE OPERATION
OF 1450, THE DISTRICT COURT'S DENIAL OF THE UNION MOTION TO DISSOLVE
THE TEMPORARY RESTRAINING ORDER EFFECTIVELY CONVERTED THE ORDER INTO A
PRELIMINARY INJUNCTION OF UNLIMITED DURATION.  THE COURT OF APPEALS
REJECTED THIS ARGUMENT OUT OF HAND, STATING THAT "(THE UNION'S
UNSUCCESSFUL EFFORT TO DISSOLVE THE ORDER BEFORE IT DIED A NATURAL
DEATH DID NOT CONVERT THE TEMPORARY RESTRAINING ORDER INTO A
PRELIMINARY INJUNCTION OR ESTOP IT FROM RELYING ON THE DEATH
CERTIFICATE."  472 F.2D, AT 767.  WE REACH ESSENTIALLY THE SAME
CONCLUSION. 

AS INDICATED EARLIER, ONCE A CASE HAS BEEN REMOVED TO FEDERAL COURT,
ITS COURSE IS TO BE GOVERNED BY FEDERAL LAW, INCLUDING THE FEDERAL
RULES OF CIVIL PROCEDURE.  RULE 65 (B) ESTABLISHES A PROCEDURE WHEREBY
THE PARTY AGAINST WHOM A TEMPORARY RESTRAINING ORDER HAS ISSUED CAN
MOVE TO DISSOLVE OR MODIFY THE INJUNCTION, UPON SHORT NOTICE TO THE
PARTY WHO OBTAINED THE ORDER.  SITUATIONS MAY ARISE WHERE THE PARTIES,
AT THE TIME OF THE HEARING ON THE MOTION TO DISSOLVE THE RESTRAINING
ORDER, FIND THEMSELVES IN A POSITION TO PRESENT THEIR EVIDENCE AND
LEGAL ARGUMENTS FOR OR AGAINST A PRELIMINARY INJUNCTION.  IN SUCH
CIRCUMSTANCES, OF COURSE, THE COURT CAN PROCEED WITH THE HEARING AS IF
IT WERE A HEARING ON AN APPLICATION FOR A PRELIMINARY INJUNCTION.  AT
SUCH HEARING, AS IN ANY OTHER HEARING IN WHICH A PRELIMINARY INJUNCTION
IS SOUGHT, THE PARTY SEEKING THE INJUNCTION WOULD BEAR THE BURDEN OF
DEMONSTRATING THE VARIOUS FACTORS JUSTIFYING PRELIMINARY INJUNCTIVE
RELIEF, SUCH AS THE LIKELIHOOD OF IRREPARABLE INJURY TO IT IF AN
INJUNCTION IS DENIED AND ITS LIKELIHOOD OF SUCCESS ON THE MERITS. 
/16/ 

ON THE OTHER HAND, SITUATIONS MIGHT ARISE WHERE THE PARTIES ARE NOT
PREPARED AND DO NOT INTEND AT THE HEARING ON THE MOTION TO DISSOLVE OR
MODIFY THE TEMPORARY RESTRAINING ORDER TO PRESENT THEIR CASES FOR OR
AGAINST A PRELIMINARY INJUNCTION.  IN SUCH CIRCUMSTANCES, THE
APPROPRIATE PROCEDURE WOULD BE FOR THE DISTRICT COURT TO DEAL WITH THE
ISSUES RAISED IN THE MOTION TO DISSOLVE OR MODIFY THE RESTRAINING
ORDER, BUT TO POSTPONE FOR A LATER HEARING, STILL WITHIN THE TIME
LIMITATIONS OF RULE 65 (B), THE APPLICATION FOR A PRELIMINARY
INJUNCTION.  SEE GENERALLY C. WRIGHT & A. MILLER, FEDERAL PRACTICE &
PROCEDURE:  CIVIL 2954, P. 523 (1973 ED.). 

IN THE PRESENT CASE WE THINK IT PLAIN THAT THE HEARING ON THE
UNION'S MOTION TO DISSOLVE THE RESTRAINING ORDER CANNOT BE CONSIDERED
TO BE A HEARING ON A PRELIMINARY INJUNCTION, AND THAT THE DISTRICT
COURT'S ORDER DENYING THE MOTION TO DISSOLVE CANNOT REASONABLY BE
CONSTRUED AS THE GRANT OF A PRELIMINARY INJUNCTION.  THERE IS NO
INDICATION IN THE RECORD THAT EITHER PARTY OR THE DISTRICT COURT ITSELF
TREATED THE MAY 27 HEARING AS A HEARING ON AN APPLICATION FOR A
PRELIMINARY INJUNCTION.  THE EMPLOYERS MADE NO ATTEMPT AT THAT TIME TO
PRESENT ITS THEIR CASE FOR A PRELIMINARY INJUNCTION.  LIKEWISE, THE
UNION MADE NO ATTEMPT AT THAT TIME TO PRESENT ITS DEFENSE THAT IT WAS
NOT BOUND BY THE NEW NATIONAL AND LOCAL AGREEMENTS BECAUSE IT HAD MADE
A TIMELY WITHDRAWAL FROM THE MULTI-UNION BARGAINING UNIT NEGOTIATING
SAID CONTRACTS.  SEE N. 3, SUPRA.  THE COURT ITSELF DID NOT INDICATE
THAT IT WAS UNDERTAKING A HEARING ON A PRELIMINARY INJUNCTION.  AS FAR
AS WE CAN TELL, IT NEVER ADDRESSED ITSELF AT THE HEARING TO THE VARIOUS
EQUITABLE FACTORS INVOLVED IN CONSIDERING A PRELIMINARY INJUNCTION, BUT
ONLY CONSIDERED THE EMPLOYERS' ARGUMENT THAT THE CASE SHOULD BE
REMANDED TO THE STATE COURT BECAUSE THE RIGHT TO REMOVE HAD BEEN WAIVED
BY THE UNION'S APPEARING IN THE STATE PROCEEDING AND THE UNION'S
ARGUMENT THAT THE TEMPORARY RESTRAINING ORDER SHOULD BE DISSOLVED FOR
WANT OF JURISDICTION UNDER THE SINCLAIR HOLDING. 

WE CANNOT ACCEPT PETITIONERS' ARGUMENT THAT THE CONTROLLING FACTOR
IS THAT THE UNION HAD THE OPPORTUNITY TO BE HEARD ON THE MERITS OF THE
PRELIMINARY INJUNCTION WHEN IT MOVED IN THE DISTRICT COURT TO DISSOLVE
THE TEMPORARY RESTRAINING ORDER.  RULE 65 (B) DOES NOT PLACE UPON THE
PARTY AGAINST WHOM A TEMPORARY RESTRAINING ORDER HAS ISSUED THE BURDEN
OF COMING FORWARD AND PRESENTING ITS CASE AGAINST A PRELIMINARY
INJUNCTION.  TO THE CONTRARY, THE RULE PROVIDES THAT "(IN CASE A
TEMPORARY RESTRAINING ORDER IS GRANTED WITHOUT NOTICE, THE MOTION FOR A
PRELIMINARY INJUNCTION SHALL BE SET DOWN FOR HEARING AT THE EARLIEST
POSSIBLE TIME ... AND WHEN THE MOTION COMES ON FOR HEARING THE PARTY
WHO OBTAINED THE TEMPORARY RESTRAINING ORDER SHALL PROCEED WITH THE
APPLICATION FOR A PRELIMINARY INJUNCTION AND, IF HE DOES NOT DO SO, THE
COURT SHALL DISSOLVE THE TEMPORARY RESTRAINING ORDER."  THE BURDEN WAS
ON THE EMPLOYERS TO SHOW THAT THEY WERE ENTITLED TO A PRELIMINARY
INJUNCTION, NOT ON THE UNION TO SHOW THAT THEY WERE NOT. 

EVEN WERE WE TO ASSUME THAT THE DISTRICT COURT HAD INTENDED BY ITS
JUNE 4 ORDER TO GRANT A PRELIMINARY INJUNCTION, ITS INTENTION WAS NOT
MANIFESTED IN AN APPROPRIATE FORM.  WHERE A HEARING ON PRELIMINARY
INJUNCTION HAS BEEN HELD AFTER ISSUANCE OF A TMEPORARY RESTRAINING
ORDER, AND WHERE THE DISTRICT COURT DECIDES TO GRANT THE PRELIMINARY
INJUNCTION, THE APPROPRIATE PROCEDURE IS NOT SIMPLY TO CONTINUE IN
EFFECT THE TEMPORARY RESTRAINING ORDER, BUT RATHER TO ISSUE A
PRELIMINARY INJUNCTION, ACCOMPANIED BY THE NECESSARY FINDINGS OF FACT
AND CONCLUSIONS OF LAW.  /17/  AS STATED BY THE SECOND CIRCUIT: 

"THE FACT THAT NOTICE IS GIVEN AND A HEARING HELD CANNOT SERVE TO
EXTEND INDEFINITELY BEYOND THE PERIOD LIMITED BY (RULE 65 (B)) THE TIME
DURING WHICH A TEMPORARY RESTRAINING ORDER REMAINS EFFECTIVE.  THE
(RULE) CONTEMPLATES THAT NOTICE AND HEARING SHALL RESULT IN AN
APPROPRIATE ADJUDICATION, I.E., THE ISSUANCE OR DENIAL OF A PRELIMINARY
INJUNCTION, NOT IN EXTENSION OF THE TEMPORARY STAY."  PAN AMERICAN
WORLD AIRWAYS V. FLIGHT ENGINEERS' ASSN., 306 F.2D 840, 842 (1962)
(FOOTNOTES OMITTED).  SEE ALSO SIMS V. GREENE, 160 F.2D 512 (CA3
1947). 

AS THE FINE IMPOSED IN THIS CASE EXEMPLIFIES, SERIOUS PENALITIES CAN
BEFALL THOSE WHO ARE FOUND TO BE IN CONTEMPT OF COURT INJUNCTIONS. 
ACCORDINGLY, ONE BASIC PRINCIPLE BUILT INTO RULE 65 IS THAT THOSE
AGAINST WHOM AN INJUNCTION IS ISSUED SHOULD RECEIVE FAIR AND PRECISELY
DEAWN NOTICE OF WHAT THE INJUNCTION ACTUALLY PROHIBITS.  /18/ 

     THE JUDICIAL CONTMEPT POWER IS A POTENT WEAPON.  WHEN IT IS

  FOUNDED UPON A DECREE TOO VAGUE TO BE UNDERSTOOD, IT CAN BE A

  DEADLY ONE.  CONGRESS RESPONDED TO THAT DANGER BY REQUIRING THAT

  A FEDERAL COURT FRAME ITS ORDERS SO THAT THOSE WHO MUST OBEY THEM

  WILL KNOW WHAT THE COURT INTENDS TO REQUIRE AND WHAT IT MEANS TO

  FORBID....  THE MOST FUNDAMENTAL POSTULATES OF OUR LEGAL ORDER

  FORBID THE IMPOSITION OF A PENALTY FOR DISOBEYING A COMMAND THAT

  DEFIES COMPREHENSION."  INTERNATIONAL LONGSHOREMEN'S ASSN. V.

  PHILADEPPHIA MARINE TRADE ASSN., 389 U.S. 64, 76 (1967). 

IT WOULD BE INCONSISTENT WITH THIS BASIC PRINCIPLE COUNTENANCE
PROCEDURES WHEREBY PARTIES AGAINST WHOM AN INJUNCTION IS DIRECTED ARE
LEFT TO GUESS ABOUT ITS INTENDED DURATION.  RULE 65 (B) PROVIDES THAT
TEMPORARY RESTRAINING ORDERS EXPIRE BY THEIR OWN TERMS WITHIN 10 DAYS
OF THEIR ISSUANCE.  WHERE A COURT INTENDS TO SUPPLANT SUCH AN ORDER
WITH A PRELIMINARY INJUNCTION OF UNLIMITED DURATION PENDING A FINAL
DECISION ON THE MERITS OR FURTHER ORDER OF THE COURT, IT SHOULD ISSUE
AN ORDER CLEARLY SAYING SO.  AND WHERE IT HAS NOT DONE SO, A PARTY
AGAINST WHOM A TEMPORARY RESTRAINING ORDER HAS ISSUED MAY REASONABLY
ASSUME THAT THE ORDER HAS EXPIRED WITHIN THE TIME LIMITS IMPOSED BY
RULE 65 (B).  HERE, SINCE THE ONLY ORDERS ENTERED WERE A TEMPORARY
RESTRAINING ORDER OF LIMITED DURATION AND AN ORDER DENYING A MOTION TO
DISSOLVE THE TEMPORARY ORDER, THE UNION HAD NO REASON TO BELIEVE THAT A
PRELIMINARY INJUNCTION OF UNLIMITED DURATION HAD BEEN ISSUED. 

SINCE NEITHER 1450 NOR THE DISTRICT COURT'S DENIAL OF THE UNION'S
MOTION TO DISSOLVE THE TEMPORARY RESTRAINING ORDER EFFECTIVELY
CONVERTED THAT ORDER INTO A PRELIMINARY INJUNCTION, NO ORDER WAS IN
EFFECT ON NOVEMBER 30, 1970, OVER SIX MONTHS AFTER THE TEMPORARY
RESTRAINING ORDER WAS ISSUED.  /19/  THERE BEING NO ORDER TO VIOLATE,
THE DISTRICT COURT ERRED IN HOLDING THE UNION IN CONTEMPT, AND THE
JUDGMENT OF THE COURT OF APPEALS REVERSING THE DISTRICT COURT'S
ADJUDICATION OF CONTEMPT MUST BE

AFFIRMED. 

/1/  TITLE 28 U.S.C. 1450: 

WHENEVER ANY ACTION IS REMOVED FROM A STATE COURT TO A DISTRICT
COURT OF THE UNITED STATES, ANY ATTACHMENT OR SEQUESTRATION OF THE
GOODS OR ESTATE OF THE DEFENDANT IN SUCH ACTION IN THE STATE COURT
SHALL HOLD THE GOODS OR ESTATE TO ANSWER THE FINAL JUDGMENT OR DECREE
IN THE SAME MANNER AS THEY WOULD HAVE BEEN HELD TO ANSWER FINAL
JUDGMENT OR DECREE HAD IT BEEN RENDERED BY THE STATE COURT. 

ALL BONDS, UNDERTAKINGS, OR SECURITY GIVEN BY EITHER PARTY IN SUCH
ACTION PRIOR TO ITS REMOVAL SHALL REMAIN VALID AND EFFECTUAL
NOTWITHSTANDING SUCH REMOVAL. 

ALL INJUNCTIONS, ORDERS, AND OTHER PROCEEDINGS HAD IN SUCH ACTION
PRIOR TO ITS REMOVAL SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL
DISSOLVED OR MODIFIED BY THE DISTRICT COURT." 

/2/  SEE APPALACHIAN VOLUNTEERS, INC. V. CLARK, 432 F.2D 530 (CA6
1970), CERT. DENIED, 401 U.S. 939 (1971); MORNING TELEGRAPH V. POWERS,
450 F.2D 97 (CA2 1971), CERT. DENIED, 405 U.S. 954 (1972).  SEE ALSO
THE HERALD CO. V. HOPKINS, 325 F.SUPP.  1232 (NDNY 1971); PEABODY COAL
CO. V. BARNES, 308 F.SUPP.  902 (ED MO. 1969). 

/3/  THIS DISPUTE WAS ALSO THE SUBJECT OF A PROCEEDING BEFORE THE
NATIONAL LABOR RELATIONS BOARD.  SEE AIRCO INDUSTRIAL GASES, 195
N.L.R.B. 676 (1972).  FROM THE FINDINGS OF FACT IN THAT PROCEEDING, IT
APPEARS THAT SINCE 1964 IT HAS BEEN THE PRACTICE IN THE TRUCKING
INDUSTRY FOR REPRESENTATIVES OF A GROUP OF THE VARIOUS TEAMSTERS LOCALS
AND A GROUP OF VARIOUS TRUCKING EMPLOYERS TO NEGOTIATE NATIONAL
AGREEMENTS AND SUPPLEMENTAL AGREEMENTS COVERING LOCAL AREAS. 
AGREEMENTS COVERING THE 1967 - 1970 PERIOD HAD EXPIRED ON MARCH 31,
1970.  NEGOTIATIONS BETWEEN THE NEGOTIATING COMMITTEES OF THE
MULTIUNION AND MULITEMPLOYER GROUPS TOWARD A CONTRACT FOR THE 1970 -
1973 PERIOD BEGAN IN JANUARY 1970 AND CONTINUED IN FEBRUARY AND APRIL. 
ON APRIL 29, THE TEAMSTERS NEGOTIATING COMMITTEE APPROVED THE NATIONAL
AND VARIOUS SUPPLEMENTAL AGREEMENTS AND ON APRIL 30, TWO
REPRESENTATIVES FROM EACH OF THE TEAMSTERS LOCALS IN THE MULTIUNION
GROUP APPROVED THE AGREEMENTS.  SOME TIME THEREAFTER A NATIONWIDE
REFERENDUM VOTE OF ALL TEAMSTERS MEMBERS WAS CONDUCTED AND IT WAS
DETERMINED THAT THE EMPOLYEES HAD RATIFIED THE AGREEMENTS. 

THE UNION CLAIMED IT WAS NOT BOUND BY THE NEW AGREEMENTS BECAUSE IT
HAD MADE A TIMELY WITHDRAWAL FROM THE MULTIUNION-MULTIEMPLOYER
BARGAINING UNIT IN A LETTER OF JANUARY 28, 1970, TO VARIOUS EMPLOYERS,
INFORMING THEM OF THE UNION'S INTENTION TO NEGOTIATE A SEPARATE
AGREEMENT FROM THE NATIONAL AND SUPPLEMENTAL AGREEMENT.  THE BOARD
ULTIMATLEY DETERMINED THAT THE UNION'S WITHDRAWAL WAS NOT TIMELY
BECAUSE NEGOTIATIONS HAD BEGUN ON JANUARY 7, 1970, PRIOR TO THE
ATTEMPTED WITHDRAWAL.  WE, OF COURSE, EXPRESS NO VIEW ON THIS ISSUE. 

/4/  IN AVCO CORP. V. AERO LODGE NO. 735, 390 U.S. 557 (1968), WE
HELD THAT 301 (A) SUITS INITIALLY BROUGHT IN STATE COURTS MAY BE
REMOVED TO THE DESIGNATED FEDERAL FORUM UNDER THE FEDERAL-QUESTION
REMOVAL JURISDICTION DELINEATED IN 28 U.S.C. 1441. 

/5/  THREE-FOURTHS OF THE FINE WAS CONDITIONED ON THE UNION'S
FAILURE TO END THE STRIKE WITHIN 24 HOURS OF THE COURT'S ORDER, ONE
HALF ON FAILURE TO END THE STRIKE WITHIN 48 HOURS, AND ONE-FOURTH ON
FAILURE TO END THE STRIKE WITHIN 72 HOURS.     ALTHOUGH WE DO NOT REST
OUR DECISION ON THIS POINT, THERE SEEMS TO BE MUCH EVIDENCE IN THE
RECORD SUGGESTING THAT EVEN IF THE RESTRAINING ORDER REMAINED IN EFFECT
AND HAD BEEN VIOLATED, THE VIOLATION WAS NOT WILLFUL.  A FINDING THAT
THE VIOLATION WAS WILLFUL OBVIOUSLY PRESUPPOSES KNOWLEDGE ON THE PART
OF THE UNION THAT THE ORDER WAS STILL IN EFFECT.  WHETHER OR NOT THE
ORDER IN FACT REMAINED IN EFFECT ON NOVEMBER 30, THE UNION EVIDENTLY
BELIEVED IT HAD EXPIRED.  PRIOR TO COMMENCING ITS STRIKE IN NOVEMBER,
THE UNION INFORMED THE EMPLOYERS THROUGH ITS ATTORNEY THAT IT DID "NOT
UNDERSTAND FROM THE FILE THAT THERE IS PRESENTLY IN EFFECT ANY ORDER
WHICH FORBIDS LOCAL 70 FROM BARGAINING WITH THE EMPLOYER, OR FROM
PRESSING ITS POSITION THAT IT HAS A RIGHT TO BARGAIN FOR A SEPARATE
CONTRACT.  A MOTION TO DISSOLVE A TEMPORARY RESTRAINING ORDER AGAINST
ECONOMIC ACTION WAS DENIED BY THE FEDERAL COURT, BUT THAT TEMPORARY
RESTRAINING ORDER HAS LONG SINCE BECOME INEFFECTIVE BY VIRTUE OF THE
STATUTORY LIMITATION ON ITS DURATION, AND THERE HAS BEEN NO APPLICATION
FOR A PRELIMINARY INJUNCTION. 

ACCORDINGLY, THE FEDERAL COURT CASE IS PENDING, BUT THERE ARE NO
OUTSTANDING ORDERS WHICH AFFECT THE ASSERTION BY LOCAL 70 OF RIGHTS
WHICH IT CLAIMS...."  APP. 67. 

/6/  SECTION 527 (SUPP. 1974), PROVIDES: 

AN INJUNCIION MAY BE GRANTED AT ANY TIME BEFORE JUDGMENT UPON A
VERIFIED COMPLAINT, OR UPON AFFIDAVITS IF THE COMPLAINT IN THE ONE
CASE, OR THE AFFIDAVITS IN THE OTHER, SHOW SATISFACTORILY THAT
SUFFICIENT GROUNDS EXIST THEREFOR.  A COPY OF THE COMPLAINT OR OF THE
AFFIDAVITS, UPON WHICH THE INJUNCTION WAS GRANTED, MUST, IF NOT
PREVIOUSLY SERVED, BE SERVED THEREWITH. 

NO PRELIMINARY INJUNCTION SHALL BE GRANTED WITHOUT NOTICE TO THE
OPPOSITE PARTY; NOR SHALL ANY TEMPORARY RESTRAINING ORDER BE GRANTED
WITHOUT NOTICE TO THE OPPOSITE PARTY, UNLESS IT SHALL APPEAR FROM FACTS
SHOWN BY AFFIDAVIT OR BY THE VERIFIED COMPLAINT THAT GREAT OR
IRREPARABLE INJURY WOULD RESULT TO THE APPLICANT BEFORE THE MATTER CAN
BE HEARD ON NOTICE.  IN CASE A TEMPORARY RESTRAINING ORDER SHALL BE
GRANTED WITHOUT NOTICE, IN THE CONTINGENCY ABOVE SPECIFIED, THE MATTER
SHALL BE MADE RETURNABLE ON AN ORDER REQUIRING CAUSE TO BE SHOWN WHY
THE INJUNCTION SHOULD NOT BE GRANTED, ON THE EARLIEST DAY THAT THE
BUSINESS OF THE COURT WILL ADMIT OF, BUT NOT LATER THAN 15 DAYS OR, IF
GOOD CAUSE APPEARS TO THE COURT, 20 DAYS FROM THE DATE OF SUCH ORDER. 
WHEN THE MATTER FIRST COMES UP FOR HEARING THE PARTY WHO OBTAINED THE
TEMPORARY RESTRAINING ORDER MUST BE READY TO PROCEED AND MUST HAVE
SERVED UPON THE OPPOSITE PARTY AT LEAST TWO DAYS PRIOR TO SUCH HEARING,
A COPY OF THE COMPLAINT AND OF ALL AFFIDAVITS TO BE USED IN SUCH
APPLICATION AND A COPY OF HIS POINTS AND AUTHORITIES IN SUPPORT OF SUCH
APPLICATION; IF HE BE NOT READY, OR IF HE SHALL FAIL TO SERVE A COPY OF
HIS COMPLAINT, AFFIDAVITS AND POINTS AND AUTHORITIES, AS HEREIN
REQUIRED, THE COURT SHALL DISSOLVE THE TEMPORARY RESTRAINING ORDER. 
THE DEFENDANT, HOWEVER, SHALL BE ENTITLED, AS OF COURSE, TO ONE
CONTINUANCE FOR A REASONABLE PERIOD, IF HE DESIRE IT, TO ENABLE HIM TO
MEET THE APPLICATION FOR THE PRELIMINARY INJUNCTION.  THE DEFENDANT
MAY, IN RESPONSE TO SUCH ORDER TO SHOW CAUSE, PRESENT AFFIDAVITS
RELATING TO THE GRANTING OF THE PRELIMINARY INJUNCTION, AND IF SUCH
AFFIDAVITS ARE SERVED ON THE APPLICANT AT LEAST TWO DAYS PRIOR TO THE
HEARING, THE APPLICANT SHALL NOT BE ENTITLED TO ANY CONTINUANCE ON
ACCOUNT THEREOF.  ON THE DAY UPON WHICH SUCH ORDER IS MADE RETURNABLE,
SUCH HEARING SHALL TAKE PRECEDENCE OF ALL OTHER MATTERS ON THE CALENDAR
OF SAID DAY, EXCEPT OLDER MATTERS OF THE SAME CHARACTER, AND MATTERS TO
WHICH SPECIAL PRECEDENCE MAY BE GIVEN BY LAW.  WHEN THE CAUSE IS AT
ISSUE IT SHALL BE SET FOR TRIAL AT THE EARLIEST POSSIBLE DATE AND SHALL
TAKE PRECEDENCE OF ALL OTHER CASES, EXCEPT OLDER MATTERS OF THE SAME
CHARACTER, AND MATTERS TO WHICH SPECIAL PRECEDENCE MAY BE GIVEN BY
LAW." 

/7/  THE TIME LIMITATION OF 527 HAS BEEN STRICTLY CONSTRUED BY THE
CALIFORNIA COURTS.  SEE, E.G., SMITH V. SUPERIOR COURT, 64 CAL. APP.
722, 222 P. 857 (1923); SHARPE V. BROTZMAN, 145 CAL. APP. 2D 354, 302
P. 2D 668 (1956); OKSNER V. SUPERIOR COURT, 229 CAL. APP. 2D 672, 40
CAL. RPTR.  621 (1964); AGRICULTURAL PRORATE COMM'N V. SUPERIOR COURT,
30 CAL. APP. 2D 154, 85 P. 2D 898 (1938). 

PETITIONERS ARGUE THAT THE TIME LIMITATION OF 527 IS NOT APPLICABLE
HERE BECAUSE IT IS OPERATIVE ONLY WITH RESPECT TO ORDERS GRANTED
WITHOUT NOTICE TO THE ADVERSE PARTY.  IN THE PRESENT CASE, PETITIONERS
INDICATE, TELEPHONIC NOTICE WAS GIVEN TO THE UNION'S COUNSEL ON MAY 15,
THE DAY THE EMPLOYERS FIRST SOUGHT THE RESTRAINING ORDER, COUNSEL WAS
SERVED WITH ALL DOCUMENTS PRIOR TO A HEARING ARRANGED THAT DAY, AND
COUNSEL WAS PRESENT IN THE COURTROOM AND PRESENTED ARGUMENT ON BEHALF
OF THE UNION AT THAT HEARING. 

WE THINK IT CLEAR FROM 527, HOWEVER, THAT THIS KIND OF INFORMAL
NOTICE AND HEARING DOES NOT CONVERT THE TEMPORARY RESTRAINING ORDER
INTO A PRELIMINARY INJUNCTION, THE OF UNLIMITED DURATION UNDER STATE
LAW.  SECTION 527 PROVIDES THAT WHEN A CASE COMES UP FOR A HEARING ON A
PRELIMINARY INJUNCTION, THE PARTY SEEKING THE INJUNCTION "MUST HAVE
SERVED UPON THE OPPOSITE PARTY AT LEAST TWO DAYS PRIOR TO SUCH HEARING,
A COPY OF THE COMPLAINT AND OF ALL AFFIDAVITS TO BE USED IN SUCH
APPLICATION AND A COPY OF HIS POINTS AND AUTHORITIES IN SUPPORT OF SUCH
APPLICATION . . . ."  (EMPHASIS ADDED.)  IN PROVIDING THAT NO
PRELIMINARY INJUNCTION SHALL BE GRANTED WITHOUT NOTICE TO THE OPPOSITE
PARTY, WE THINK THE STATUTE THUS CONTEMPLATED NOTICE OF AT LEAST TWO
DAYS, WITH A MEANINGFUL OPPORTUNITY TO PREPARE FOR THE HEARING, RATHER
THAN THE KIND OF INFORMAL, SAME-DAY NOTICE THAT WAS GIVEN IN THIS
CASE. 

THIS INTERPRETATION OF STATE LAW IS SUPPORTED ON THE FACTS OF THIS
CASE.  EVEN THOUGH THE SUPERIOR COURT HELD SOME SORT OF HEARING, WITH
UNION COUNSEL ATTENDING, BEFORE GRANTING THE TEMPORARY RESTRAINING
ORDER, THE COURT OBVIOUSLY FELT THAT THE HEARING WAS NOT A SUFFICIENT
BASIS FOR RULING ON THE PRELIMINARY INJUNCTION.  ACCORDINGLY, IN THE
SAME ORDER GRANTING THE TEMPORARY RESTRAINING ORDER, THE COURT SET THE
CASE FOR A HEARING ON THE APPLICATION FOR A PRELIMINARY INJUNCTION
WITHIN THE 15-DAY LIMIT IMPOSED BY 527. 

IN ANY EVENT, WE NEED NOT REST OUR HOLDING ON THIS INTERPRETATION OF
STATE LAW, FOR EVEN IF THIS RESTRAINING ORDER COULD HAVE HAD UNLIMITED
DURATION UNDER CALIFORNIA LAW, IT WAS SUBJECT TO THE TIME LIMITATIONS
OF RULE 65 (B) AFTER THE CASE WAS REMOVED TO FEDERAL COURT.  SEE INFRA,
AT 437 - 440.  ALTHOUGH BY ITS TERMS RULE 65 (B), LIKE 527, ONLY LIMITS
THE DURATION OF RESTRAINING ORDERS ISSUED WITHOUT NOTICE, WE THINK IT
APPLICABLE TO THE ORDER IN THIS CASE EVEN THOUGH INFORMAL NOTICE WAS
GIVEN.  THE 1966 AMENDMENTS TO RULE 65 (B), REQUIRING THE PARTY SEEKING
A TEMPORARY RESTRAINING ORDER TO CERTIFY TO THE COURT IN WRITING THE
EFFORTS, IF ANY, WHICH HAVE BEEN MADE TO GIVE EITHER WRITTEN OR ORAL
NOTICE TO THE ADVERSE PARTY OR HIS ATTORNEY, WERE ADOPTED IN
RECOGNITION OF THE FACT THAT INFORMAL NOTICE AND A HASTILY ARRANGED
HEARING ARE TO BE PREFERRED TO NO NOTICE OR HEARING AT ALL.  SEE
ADVISORY COMMITTEE'S NOTE, 28 U.S.C. APP. 7831.  BUT THIS INFORMAL,
SAME-DAY NOTICE, DESIRABLE THOUGH IT MAY BE BEFORE A RESTRAINING ORDER
IS ISSUED, IS NO SUBSTITUTE FOR THE MORE THOROUGH NOTICE REQUIREMENTS
WHICH MUST BE SATISFIED TO OBTAIN A PRELIMINARY INJUNCTION OF
POTENTIALLY UNLIMITED DURATION.  THE NOTICE REQUIRED BY RULE 65 (A)
BEFORE A PRELIMINARY INJUNCTION CAN ISSUE IMPLIES A HEARING IN WHICH
THE DEFENDANT IS GIVEN A FAIR OPPORTUNITY TO OPPOSE THE APPLICATION AND
TO PREPARE FOR SUCH OPPOSITION.  SIMS V. GREENE, 161 F.2D 87 (CA3
1947).  THE SAME-DAY NOTICE PROVIDED IN THIS CASE BEFORE THE TEMPORARY
RESTRAINING ORDER WAS ISSUED DOES NOT SUFFICE.  SEE BAILEY V.
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION, 45 F.R.D. 444 (ND MISS. 
1968).  SEE ALSO C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE:
2949, P. 468 (1973 ED.), READING INTO RULE 65 (A) FIVE-DAY-NOTICE
REQUIREMENT BASED ON FED. RULE CIV. PROC. 6 (D). 

/8/  RULE 65 (B) PROVIDES: 

"(B) TEMPORARY RESTRAINING ORDER; NOTICE; HEARING; DURATION.  A
TEMPORARY RESTRAINING ORDER MAY BE GRANTED WITHOUT WRITTEN OR ORAL
NOTICE TO THE ADVERSE PARTY OR HIS ATTORNEY ONLY IF (1) IT CLEARLY
APPEARS FROM SPECIFIC FACTS SHOWN BY AFFIDAVIT OR BY THE VERIFIED
COMPLAINT THAT IMMEDIATE AND IRREPARABLE INJURY, LOSS, OR DAMAGE WILL
RESULT TO THE APPLICANT BEFORE THE ADVERSE PARTY OR HIS ATTORNEY CAN BE
HEARD IN OPPOSITION, AND (2) THE APPLICANT'S ATTORNEY CERTIFIES TO THE
COURT IN WRITING THE EFFORTS, IF ANY, WHICH HAVE BEEN MADE TO GIVE THE
NOTICE AND THE REASONS SUPPORTING HIS CLAIM THAT NOTICE SHOULD NOT BE
REQUIRED.  EVERY TEMPORARY RESTRAINING ORDER GRANTED WITHOUT NOTICE
SHALL BE INDORSED WITH THE DATE AND HOUR OF ISSUANCE; SHALL BE FILED
FORTHWITH IN THE CLERK'S OFFICE AND ENTERED OF RECORD; SHALL DEFINE THE
INJURY AND STATE WHY IT IS IRREPARABLE AND WHY THE ORDER WAS GRANTED
WITHOUT NOTICE; AND SHALL EXPIRE BY ITS TERMS WITHIN SUCH TIME AFTER
ENTRY, NOT TO EXCEED 10 DAYS, AS THE COURT FIXES, UNLESS WITHIN THE
TIME SO FIXED THE ORDER, FOR GOOD CAUSE SHOWN, IS EXTENDED FOR A LIKE
PERIOD OR UNLESS THE PARTY AGAINST WHOM THE ORDER IS DIRECTED CONSENTS
THAT IT MAY BE EXTENDED FOR A LONGER PERIOD.  THE REASONS FOR THE
EXTENSION SHALL BE ENTERED OF RECORD.  IN CASE A TEMPORARY RESTRAINING
ORDER IS GRANTED WITHOUT NOTICE, THE MOTION FOR A PRELIMINARY
INJUNCTION SHALL BE SET DOWN FOR HEARING AT THE EARLIEST POSSIBLE TIME
AND TAKES PRECEDENCE OF ALL MATTERS EXCEPT OLDER MATTERS OF THE SAME
CHARACTER; AND WHEN THE MOTION COMES ON FOR HEARING THE PARTY WHO
OBTAINED THE TEMPORARY RESTRAINING ORDER SHALL PROCEED WITH THE
APPLICATION FOR A PRELIMINARY INJUNCTION AND, IF HE DOES NOT DO SO, THE
COURT SHALL DISSOLVE THE TEMPORARY RESTRAINING ORDER.  ON 2 DAYS'
NOTICE TO THE PARTY WHO OBTAINED THE TEMPORARY RESTRAINING ORDER
WITHOUT NOTICE OR ON SUCH SHORTER NOTICE TO THAT PARTY AS THE COURT MAY
PRESCRIBE, THE ADVERSE PARTY MAY APPEAR AND MOVE ITS DISSOLUTION OR
MODIFICATION AND IN THAT EVENT THE COURT SHALL PROCEED TO HEAR AND
DETERMINE SUCH MOTION AS EXPEDITIOUSLY AS THE ENDS OF JUSTICE
REQUIRE." 

/9/  SEE, E.G., MADRON V. THOMAS, 38 F.R.D. 177 (ED TENN. 1965);
MURPHY V. E.I DU PONTE DE NEMOURS & CO., 26 F. SUPP. 999 (WD PA. 1939);
BORTON V. CONNECTICUT GEN. LIFE INS. CO., 25 F. SUPP. 579 (NEB. 1938). 
OF COURSE, REPLEADING MAY BE REQUIRED BY THE DISTRICT COURT IN
APPROPRIATE CASES.  SEE, E.G., FOUST V. BALTIMORE & O.R. CO., 91 F.
SUPP. 817 (SD OHIO 1950); SHELL PETROLEUM CORP. V. STUEVE, 25 SUPP. 879
(MINN. 1938). 

/10/  WE NOTE THAT 1450 EXPRESSLY PROVIDES THAT ATTACHMENTS OR
SEQUESTRATIONS EFFECTED BY THE STATE COURT PRIOR TO REMOVAL "SHALL HOLD
THE GOODS OR ESTATE TO ANSWER THE FINAL JUDGMENT OR DECREE IN THE SAME
MANNER AS THEY WOULD HAVE BEEN HELD TO ANSWER FINAL JUDGMENT OR DECREE
HAD IT BEEN RENDERED BY THE STATE COURT."  PETITIONERS ARGUE THAT SINCE
POST-REMOVAL TREATMENT OF AN ATTACHMENT EFFECTED IN THE STATE COURT WAS
EXPRESSLY MADE DEPENDENT ON THE PROVISIONS OF STATE LAW, WHILE NO SUCH
EXPRESS PROVISION WAS MADE WITH RESPECT TO INJUNCTIONS ISSUED BY THE
STATE COURT PRIOR TO REMOVAL, CONGRESS MUST HAVE INTENDED THAT
INJUNCTION ORDERS NOT BE CONTROLLED AFTER REMOVAL BY THE DURATIONAL
LIMITATIONS OF STATE LAW. 

AS WE VIEW THE MATTER, THE EXPRESS PROVISION IN 1450 THAT STATEMENT
OF LONG-SETTLED FEDERAL LAW PROVIDING THAT IN ALL CASES IN FEDERAL
COURT, WHETHER OR NOT REMOVED FROM STATE COURT, STATE LAW IS
INCORPORATED TO DETERMINE THE AVAILABILITY OF PREJUDGMENT REMEDIES FOR
THE SEIZURE OF PERSON OR PROPERTY TO SECURE SATISFACTION OF THE
JUDGMENT ULTIMATELY ENTERED.  SEE FED. RULE CIV. PROC. 64.  SECTION
1450 MAKES IT CLEAR THAT THIS SETTLED RULE OF FEDERAL LAW APPLIES TO
REMOVED CASES AS WELL.  IF ANYTHING, THEREFORE, IT SUPPORTS OUR
CONCLUSION THAT THE OTHER PROCEDURAL REQUIREMENTS OF FEDERAL LAW,
INCLUDING THE TIME LIMITATIONS OF RULE 65 (B), MUST BE APPLIED TO STATE
COURT TEMPORARY RESTRAINING ORDERS AFTER THE CASE HAS BEEN REMOVED TO
FEDERAL COURT.  SEE INFRA, AT 437 - 440. 

/11/  SEE GENERALLY WRIGHT & MILLER, SUPRA, N. 7, 1024, AT 108 -
110, AND CASES THERE CITED. 

/12/  SEE H.R. REP. NO. 627, 63D CONG., 2D SESS., 25 (1914). 

/13/  SECTION 17 OF THE CLAYTON ACT WAS CODIFIED AS 28 U.S.C. 381
(1940 ED.), AND WAS REPEALED BY THE JUDICIAL CODE REVISION ACT OF 1948,
62 STAT. 997, FOR THE STATED REASON THAT IT WAS COVERED BY RULE 65. 
SEE H.R. REP. NO. 308, 80TH CONG., 1ST SESS., A236 (1947). 

/14/  SEE, E.G., PAN AMERICAN WORLD AIRWAYS V. FLIGHT ENGINEERS'
ASSN., 306 F.2D 840 (CA2 1962); SMOTHERMAN V. UNITED STATES, 186 F.2D
676 (CA10 1950); SIMS V. GREENE, 161 F.2D 87 (CA3 1947).  THIS BASIC
PURPOSE IS IMPLICIT IN RULE 65 (B)'S REQUIREMENT THAT AFTER A TEMPORARY
RESTRAINING ORDER IS GRANTED WITHOUT NOTICE, "THE MOTION FOR A
PRELIMINARY INJUNCTION SHALL BE SET DOWN FOR HEARING AT THE EARLIEST
POSSIBLE TIME AND TAKES PRECEDENCE OF ALL MATTERS EXCEPT OLDER MATTERS
OF THE SAME CHARACTER . . ." 

/15/  THE FOLLOWING TWO ILLUSTRATIONS SHOULD SUFFICE TO CLARIFY THIS
HOLDING.  WHERE THE STATE COURT ISSUES A TEMPORARY RESTRAINING ORDER OF
15 DAYS' DURATION ON DAY 1 AND THE CASE IS REMOVED TO FEDERAL COURT ON
DAY 13, THE ORDER WILL EXPIRE ON DAY 15 IN FEDERAL COURT JUST AS IT
WOULD HAVE EXPIRED ON DAY 15 IN STATE COURT.  WHERE, HOWEVER, A STATE
COURT ISSUES A TEMPORARY RESTRAINING ORDER OF 15 DAYS' DURATION ON DAY
1 AND THE CASE IS REMOVED TO THE FEDERAL COURT ON DAY 2, THE
RESTRAINING ORDER WILL EXPIRE ON DAY 12, APPLYING THE 10-DAY TIME
LIMITATION OF RULE 65 (B) MEASURED FROM THE DATE OF REMOVAL.  OF
COURSE, IN EITHER CASE, THE DISTRICT COURT COULD EXTEND THE RESTRAINING
ORDER FOR UP TO AN ADDITIONAL 10 DAYS, FOR GOOD CAUSE SHOWN, UNDER RULE
65 (B).     /16/  SEE, E.G., ROBERT W. STARK, JR., INC. V. NEW YORK
EXCHANGE, 466 F. 2D 743 (CA2 1972); CROWTHER V. SEABORG, 415 F.2D 437
(CA10 1969); GARLOCK, INC. V. UNITED SEAL, INC., 404 F.2D 256 (CA6
1968). 

/17/  FED. RULE CIV. PROC. 52 (A) PROVIDES THAT "IN GRANTING OR
REFUSING INTERLOCUTORY INJUNCITONS THE COURT SHALL . . . SET FORTH THE
FINDINGS OF FACT AND CONCLUSIONS OF LAW WHICH CONSTITUTE THE GROUNDS OF
ITS ACTION."  WHERE A TEMPORARY RESTRAINING ORDER HAS BEEN CONTINUED
BEYOND THE TIME LIMITS PERMITTED UNDER RULE 65 (B), AND WHERE THE
REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW HAVE NOT BEEN SET
FORTH, THE ORDER IS INVALID.  SEE, E.G., NATIONAL MEDIATION BD. V. AIR
LINE PILOTS ASSN., 116 U.S. APP. D.C. 300, 323 F.2D 305 (1963); SIMS V.
GREENE, 160 F.2D 512 (CA3 1947). 

/18/  RULE 65 (D) PROVIDES: 

" EVERY ORDER GRANTING AN INJUNCTION AND EVERY RESTRAINING ORDER ...
SHALL BE SPECIFIC IN TERMS; SHALL DESCRIBE IN REASONABLE DETAIL, AND
NOT BY REFERENCE TO THE COMPLAINT OR OTHER DOCUMENT, THE ACT OR ACTS
SOUGHT TO BE RESTRAINED . . . ." 

/19/  IN FIEW OF OUR DISPOSITION OF THE CASE, WE NEED NOT AND DO NOT
REACH RESPONDENT'S ARGUMENT THAT NOTWITHSTANDING BOYS MARKETS V. RETAIL
CLERKS UNION, 398 U.S. 235 (1970), THE TEMPORARY RESTRAINING ORDER
ISSUED IN THIS CASE SHOULD BE GOVERNED BY THE 5-DAY LIMIT OF THE NORRIS
LA GURADIA ACT, 29 U.S.C. 107. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
STEWART, AND MR. JUSTICE POWELL JOIN, CONCURRING THE JUDGMENT. 

I AGREE WITH THE COURT THAT THE JDUGMENT OF THE COURT OF APPEALS FOR
THE NINTH CIRCUIT IN THIS CASE SHOULD BE AFFIRMED, SINCE THERE WAS NO
INJUNCTIVE ORDER IN EFFECT AT THE TIME THAT RESPONDENT'S ALLEGEDLY
CONTEMPTUOUS CONDUCT OCCURRED.  BUT I DO NOT JOIN THAT PORTION OF THE
COURT'S OPINION WHICH LAYS DOWN A "RULE" FOR ALL CASES INVOLVING 28
U.S.C. 1450, /1/  THE STATUTE WHICH ALL PARTIES AGREE IS CONTROLLING IN
THE CASE BEFORE US.  IN MY VIEW, THE ANNOUNCEMENT OF THIS "RULE" IS
NEITHER NECESSARY TO THE DECISION OF THIS CASE NOR CONSISTENT WITH THE
PROVISIONS OF THE STATUTE ITSELF. 

THE COURT PERSUASIVELY DEMONSTRATES IN ITS OPINION THAT THE
TEMPORARY RESTRAINING ORDER ISSUED BY THE CALIFORNIA SUPERIOR COURT HAD
EXPIRED BY ITS OWN TERMS LONG BEFORE THE ALLEGED CONTEMPT OCCURRED. 
AND I SEE NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF 28 U.S.C.
1450, PROVIDING THAT "(ALL INJUNCITONS, ORDERS, AND OTHER PROCEEDINGS
HAD IN SUCH ACTION PRIOR TO ITS REMOVAL SHALL REMAIN IN FULL FORCE AND
EFFECT UNTIL DISSOLVED OR MODIFIED BY THE DISTRICT COURT," WHICH WOULD
INDEFINITELY EXTEND THE SUPERIOR COURT'S RESTRAINING ORDER BEYOND THE
TIME OF ITS NORMAL EXPIRATION UNDER STATE LAW.  SINCE THE TEMPORARY
RESTRAINING ORDER, HAD THE CASE REMAINED IN STATE COURT, CONCEDEDLY
WOULD HAVE EXPIRED IN EARLY JUNE, RESPONDENT'S ACTIONS IN NOVEMBER AND
DECEMBER COULD NOT HAVE CONSTITUTED A CONTEMPT OF THAT ORDER. 

THE COURT ALSO PERSUASIVELY DEMONSTRATES THAT NONE OF THE
PROCEEDINGS OCCURRING AFTER REMOVAL OF THE CASE TO THE UNITED STATES
DISTRICT COURT HAD THE EFFECT OF CONVERTING THE SUBSISTING STATE COURT
TEMPORARY RESTRAINING ORDER INTO A PRELIMINARY INJUNCTION OF INDEFINITE
DURATION.  THOSE PROCEEDINGS ADDRESSED MARKEDLY DIFFERENT ISSUES AND
CERTAINLY DID NOT GIVE THE STATE COURT ORDER A NEW, INDEPENDENT FEDERAL
EXISTENCE. 

HAVING SAID THIS MUCH, THE COURT HAS DISPOSED OF THE CASE BEFORE IT.
THE OPINION THEN GOES ON, HOWEVER, TO DEVISE A "RULE" THAT 

"(AN EX PARTE TEMPORARY RESTRAINING ORDER ISSUED BY A STATE COURT
PRIOR TO REMOVAL REMAINS IN FORCE AFTER REMOVAL NO LONGDER THAN IT
WOULD HAVE REMAINED IN EFFECT UNDER STATE LAW, BUT IN NO EVENT DOES THE
ORDER REMAIN IN FORCE LONGER THAN THE TIME LIMITATIONS IMPOSED BY RULE
65 (B), MEASURED FROM THE DATE OF REMOVAL."  ANTE, AT 439 - 440.  BUT
THE DETERMINATION THAT MERE REMOVAL OF A CASE TO A FEDERAL DISTRICT
COURT DOES NOT EXTEND THE DURATION OF A PREVIOUSLY ISSUED STATE COURT
ORDER PAST ITS ORIGINAL TERMINATION DATE MAKES QUITE UNNECESSARY TO
THIS CASE ANY FURTHER DISCUSSION ABOUT TIME LIMITATIONS CONTAINED IN
FED. RULE CIV. PROC. 65 (B).  MORE IMPORTANTLY, THE SECOND CLAUSE OF
THE "RULE" DEVISED BY THE COURT SEEMS QUITE CONTRARY TO THE SPECIFIC
LANGUAGE OF 28 U.S.C. 1450. 

THE COURT APPARENTLY BASES THIS LATTER CLAUSE OF THE "RULE" UPON THE
OBSERVATION THAT "RESPONDENT UNION HAD A RIGHT TO THE PROTECTIONS OF
THE TIME LIMITATION IN RULE 65 (B) ONCE THE CASE WAS REMOVED TO THE
DISTRICT COURT."  WHILE THIS PREMISE PROBABLY HAS A GOOD DEAL TO
RECOMMEND IT AS A MATTER OF PRACTICALITY OR OF COMMON SENSE, THE
LANGUAGE OF THE STATUTE GIVES NO HINT THAT RULES OF PRACTICE GOVERNING
ISSUANCE OF FEDERAL INJUNCTIONS IN THE FIRST INSTNACE WERE
AUTOMATICALLY TO BE INCORPORATED IN APPLYING ITS TERMS.  THE STATUTE
SAYS THAT THE STATE COURT'S TEMPORARY RESTRAINING ORDER "SHALL REMAIN
IN FULL FORCE AND EFFECT UNTIL DISSOLVED OR MODIFIED BY THE DISTRICT
COURT."  THIS COURT'S "RULE," HOWEVER, SAYS THAT IT SHALL NOT REMAIN IN
FULL FORCE AND EFFECT, EVEN THOUGH NOT DISSOLVED OR MODIFIED BY THE
DISTRICT COURT, IF IT WOULD HAVE A LIFE BEYOND THE TIME LIMITATIONS
IMPOSED BY RULE 65 (B). 

I THINK IT LIKELY THAT THE INTEREST IN LIMITING THE DURATION OF
TEMPORARY RESTRAINING ORDERS WHICH IS EXEMPLIFIED IN RULE 65 (B) CAN BE
FULLY PROTECTED IN CASES REMOVED TO THE DISTRICT COURT BY AN
APPLICATION TO MODIFY OR DISSOLVE A STATE COURT RESTRAINING ORDER WHICH
IS INCOMPATIBLE WITH THOSE TERMS.  /2/  SUCH A PROCEDURE WOULD BE QUITE
CONSISTENT WITH 1450, WHICH SPECIFICALLY CONTEMPLATES DISSOLUTION OR
MODIFICATION BY THE DISTRICT COURT UPON AN APPROPRIATE SHOWING, IN A
WAY THAT THE "RULE"  DEVISED BY THE COURT IN THIS CASE IS NOT.  IT IS
UNLIKELY THAT MANY ORDERS ISSUED UNDER RULES OF STATE PROCEDURE,
PRIMARILY DESIGNED, AFTER ALL, TO PROVIDE SUITABLE PROCEDURES FOR STATE
COURTS RATHER THAN TO FRUSTRATE FEDERAL PROCEDURAL RULES IN REMOVED
ACTIONS, WOULD BY THEIR TERMS REMAIN IN EFFECT FOR A PERIOD OF TIME FAR
LONGER THAN THAT CONTEMPLATED BY THE COMPARABLE FEDERAL RULE OF CIVIL
PROCUDURE.  BUT IN THE RARE CASE WHERE SUCH A CONDITION OBTAINS, IT IS
SURELY NOT ASKING TOO MUCH OF A LITIGANT IN A REMOVED CASE TO COMPLY
WITH 1450 AND AFFIRMATIVELY MOVE FOR APPROPRIATE MODIFICATION OF THE
STATE ORDER. 

THEREFORE, ALTHOUGH I CANNOT SUBSCRIBE TO THE RULE WHICH THE COURT
FASHIONS TO GOVERN CASES OF THIS TYPE, I CONCUR IN ITS CONCLUSION THAT
RESPONDENT'S ACTIVITY IN NOVEMBER AND DECEMBER 1970 DID NOT VIOLATE ANY
INJUNCTIVE ORDER WHICH WAS IN FORCE AT THAT TIME.  /3/ 

/1/  THE RELEVANT PROVISION OF 28 U. S C. 1450 READS: 

ALL INJUNCTIONS, ORDERS, AND OTHER PROCEEDINGS HAD IN SUCH ACTION
PRIOR TO ITS REMOVAL SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL
DISSOLVED OR MODIFIED BY THE DISTRICT COURT." 

/2/  INDEED, RESPONDENT'S MOTION TO DISSOLVE THE STATE COURT ORDER
BECAUSE OF THE PROHIBITIONS CONTAINED IN THE NORRIS-LA GUARDIA, ACT 29
U.S.C. 104, WAS JUST SUCH A MOTION.  THAT MOTION WAS DENIED BY THE
DISTRICT COURT, HOWEVER, AND RESPONDENT MADE NO FURTHER EFFORT TO
OBTAIN A MODIFICATION OR DISSOLUTION OF THE STATE RESTRAINING ORDER
PRIOR TO ITS EXPIRATION. 

/3/  I SEE NO OCCASION FOR THE COURT'S RATHER CASUAL SPECULAITION,
CONTAINED IN N. 5 OF ITS OPINION, THAT THE RESPONDENT'S VIOLATION OF
THE ORDER, EVEN WERE IT EFFECTIVE AT THE TIME OF ITS LATER CONDUCT, MAY
NOT HAVE BEEN "WILLFUL."  THE COURT HAS CONCLUDED THAT THE ORDER WAS
NOT EFFECTIVE AT THAT LATER TIME, AND IT CAN SERVE NO USEFUL PURPOSE TO
SPECULATE ABOUT THE SUFFICIENCY OF THE EVIDENCE WITH RESPECT TO
VIOLATION OF A DEFUNCT ORDER. 

GEORGE J. TICHY II ARGUED THE CASUE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WAS WESLEY J. FASTIFF. 

DUANE B. BEESON ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE VICTOR J. VAN BOURG AND BENARD DUNAU. 
..END :























DAVIS V. ALASKA, 415 U.S. 308 


       DAVIS V. ALASKA, 415 U.S. 308,

        CERTIORARI TO THE SUPREME COURT OF ALASKA

        NO. 72 - 5794.  ARGUED DECEMBER 12, 1973 --, DECIDED

           FEBRUARY 27, 1974; 499 P.2D 1025, REVERSED AND

           REMANDED. 


    PETITIONER WAS CONVICTED OF GRAND LARCENY AND BURGLARY

  FOLLOWING A TRIAL IN WHICH THE TRIAL COURT ON MOTION OF THE

  PROSECUTION ISSUED A PROTECTIVE ORDER PROHIBITING QUESTIONING

  GREEN, A KEY PROSECUTION WITNESS, CONCERNING GREEN'S ADJUDICATION

  AS A JUVENILE DELINQUENT RELATING TO A BURGLARY AND HIS PROBATION

  STATUS AT THE TIME OF THE EVENTS AS TO WHICH GREEN WAS TO

  TESTIFY.  THE TRIAL COURT'S ORDER WAS BASED ON STATE PROVISIONS

  PROTECTING THE ANONYMITY OF JUVENILE OFFENDERS.  THE ALASKA

  SUPREME COURT AFFIRMED.  HELD: PETITIONER WAS DENIED HIS RIGHT OF

  CONFRONTATION OF WITNESSES UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS.  PP. 315 - 321. 

     (A) THE DEFENSE WAS ENTITLED TO ATTEMPT TO SHOW THAT GREEN WAS

  BIASED BECAUSE OF HIS VULNERABLE STATUS AS A PROBATIONER AND HIS

  CONCERN THAT HE MIGHT BE A SUSPECT IN THE BURGLARY CHARGED

  AGAINST PETITIONER, AND LIMITING THE CROSS-EXAMINATION OF GREEN

 PRECLUDED THE DEFENSE FROM SHOWING GREEN'S POSSIBLE BIAS.  PP.

  315 - 318. 

     (B) PETITIONER'S RIGHT OF CONFRONTATION IS PARAMOUNT TO THE

  STATE'S POLICY OF PROTECTING JUVENILE OFFENDERS AND ANY TEMPORARY

  EMBARRASSMENT TO GREEN BY DISCLOSURE OF HIS JUVENILE COURT RECORD

  AND PROBATION STATUS IS OUTWEIGHED BY PETITIONER'S RIGHT

  EFFECTIVELY TO CROSS-EXAMINE A WITNESS.  PP. 319 - 320. 

     BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH

DOUGLAS, BRENNAN, STEWART, MARSHALL, BLACKMUN, AND POWELL, JJ.,

  JOINED.  STEWART, J., FILED A CONCURRING STATEMENT, POST, P.

  321.  WHITE, J., FILED A DISSENTING OPNION, IN WHICH REHNQUIST,

  J., JOINED, POST, P. 321. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO CONSIDER WHETHER THE
CONFRONTATION CLAUSE REQUIRES THAT A DEFENDANT IN A CRIMINAL CASE BE
ALLOWED TO IMPEACH THE CREDIBILITY OF A PROSECUTION WITNESS BY CROSS
EXAMINATION DIRECTED AT POSSIBLE BIAS DERIVING FROM THE WITNESS'
PROBATIONARY STATUS AS A JUVENILE DELINQUENT WHEN SUCH AN IMPEACHMENT
WOULD CONFLICT WITH A STATE'S ASSERTED INTEREST IN PRESERVING THE
CONFIDENTIALITY OF JUVENILE ADJUDICATIONS OF DELINQUENCY. 

        (1) 

WHEN THE POLAR BAR IN ANCHORAGE CLOSED IN THE EARLY MORNING HOURS OF
FEBRUARY 16, 1970, WELL OVER A THOUSAND DOLLARS IN CASH AND CHECKS WAS
IN THE BAR'S MOSLER SAFE.  ABOUT MIDDAY, FEBRUARY 16, IT WAS DISCOVERED
THAT THE BAR HAD BEEN BROKEN INTO AND THE SAFE, ABOUT TWO FEET SQUARE
AND WEIGHING SEVERAL HUNDRED POUNDS, HAD BEEN REMOVED FROM THE
PREMISES. 

LATER THAT AFTERNOON THE ALASKA STATE TROOPERS RECEIVED WORD THAT A
SAFE HAD BEEN DISCOVERED ABOUT 26 MILES OUTSIDE ANCHORAGE NEAR THE HOME
OF JESS STRAIGHT AND HIS FAMILY.  THE SAFE, WHICH WAS SUBSEQUENTLY
DETERMINED TO BE THE ONE STOLEN FROM THE POLAR BAR, HAD BEEN PRIED OPEN
AND THE CONTENTS REMOVED.  RICHARD GREEN, JESS STRAIGHT'S STEPSON, TOLD
INVESTIGATING TROOPERS ON THE SCENE THAT AT ABOUT NOON ON FEBRUARY 16
HE HAD SEEN AND SPOKEN WITH TWO NEGRO MEN STANDING ALONGSIDE A LATE
MODEL METALLIC BLUE CHEVROLET SEDAN NEAR WHERE THE SAFE WAS LATER
DISCOVERED.  THE NEXT DAY ANCHORAGE POLICE INVESTIGATORS BROUGHT HIM TO
THE POLICE STATION WHERE GREEN WAS GIVEN SIX PHOTOGRAPHS OF ADULT NEGRO
MALES.  AFTER EXAMINING THE PHOTOGRAPHS FOR 30 SECONDS TO A MINUTE,
GREEN IDENTIFIED THE PHOTOGRAPH OF PETITIONER AS THAT OF ONE OF THE MEN
HE HAD ENCOUNTERED THE DAY BEFORE AND DESCRIBED TO THE POLICE. 
PETITIONER WAS ARRESTED THE NEXT DAY, FEBRUARY 18.  ON FEBRUARY 19,
GREEN PICKED PETITIONER OUT OF A LINEUP OF SEVEN NEGRO MALES. 

AT TRIAL, EVIDENCE WAS INTRODUCED TO THE EFFECT THAT PAINT CHIPS
FOUND IN THE TRUNK OF PETITIONER'S RENTED BLUE CHEVROLET COULD HAVE
ORIGINATED FROM THE SURFACE OF THE STOLEN SAFE.  FURTHER, THE TRUNK OF
THE CAR CONTAINED PARTICLES WHICH WERE IDENTIFIED AS SAFE INSULATION
CHARACTERISTIC OF THAT FOUND IN MOSLER SAFES.  THE INSULATION FOUND IN
THE TRUNK MATCHED THAT OF THE STOLEN SAFE. 

RICHARD GREEN WAS A CRUCIAL WITNESS FOR THE PROSECUTION.  HE
TESTIFIED AT TRIAL THAT WHILE ON AN ERRAND FOR HIS MOTHER HE CONFRONTED
TWO MEN STANDING BESIDE A LATE-MODEL METALLIC BLUE CHEVROLET, PARKED ON
A ROAD NEAR HIS FAMILY'S HOUSE.  THE MAN STANDING AT THE REAR OF THE
CAR SPOKE TO GREEN ASKING IF GREEN LIVED NEARBY AND IF HIS FATHER WAS
HOME.  GREEN OFFERED THE MEN HELP, BUT HIS OFFER WAS REJECTED.  ON HIS
RETURN FROM THE ERRAND GREEN AGAIN PASSED THE TWO MEN AND HE SAW THE
MAN WITH WHOM HE HAD HAD THE CONVERSATION STANDING AT THE REAR OF THE
CAR WITH "SOMETHING LIKE A CROWBAR" IN HIS HANDS.  GREEN IDENTIFIED
PETITIONER AT THE TRIAL AS THE MAN WITH THE "CROWBAR."  THE SAFE WAS
DISCOVERED LATER THAT AFTERNOON AT THE POINT, ACCORDING TO GREEN, WHERE
THE CHEVROLET HAD BEEN PARKED. 

BEFORE TESTIMONY WAS TAKEN AT THE TRIAL OF PETITIONER, THE
PROSECUTOR MOVED FOR A PROTECTIVE ORDER TO PREVENT ANY REFERENCE TO
GREEN'S JUVENILE RECORD BY THE DEFENSE IN THE COURSE OF CROSS
EXAMINATION.  AT THE TIME OF THE TRIAL AND AT THE TIME OF THE EVENTS
GREEN TESTIFIED TO, GREEN WAS ON PROBATION BY ORDER OF A JUVENILE COURT
AFTER HAVING BEEN ADJUDICATED A DELINQUENT FOR BURGLARIZING TWO
CABINS.  GREEN WAS 16 YEARS OF AGE AT THE TIME OF THE POLAR BAR
BURGLARY, BUT HAD TURNED 17 PRIOR TO TRIAL. 

IN OPPOSING THE PROTECTIVE ORDER, PETITIONER'S COUNSEL MADE IT CLEAR
THAT HE WOULD NOT INTRODUCE GREEN'S JUVENILE ADJUDICATION AS A GENERAL
IMPEACHMENT OF GREEN'S CHARACTER AS A TRUTHFUL PERSON BUT, RATHER TO
SHOW SPECIFICALLY THAT AT THE SAME TIME GREEN WAS ASSISTING THE POLICE
IN IDENTIFYING PETITIONER HE WAS ON PROBATION FOR BURGLARY.  FROM THIS
PETITIONER WOULD SEEK TO SHOW--OR AT LEAST ARGUE--THAT GREEN ACTED OUT
OF FEAR OR CONCERN OF POSSIBLE JEOPARDY TO HIS PROBATION.  NOT ONLY
MIGHT GREEN HAVE MADE A HASTY AND FAULTY IDENTIFICATION OF PETITIONER
TO SHIFT SUSPICION AWAY FROM HIMSELF AS ONE WHO ROBBED THE POLAR BAR,
BUT GREEN MIGHT HAVE BEEN SUBJECT TO UNDUE PRESSURE FROM THE POLICE AND
MADE HIS IDENTIFICATIONS UNDER FEAR OF POSSIBLE PROBATION REVOCATION. 
GREEN'S RECORD WOULD BE REVEALED ONLY AS NECESSARY TO PROBE GREEN FOR
BIAS AND PREJUDICE AND NOT GENERALLY TO CALL GREEN'S GOOD CHARACTER
INTO QUESTION. 

THE TRIAL COURT GRANTED THE MOTION FOR A PROTECTIVE ORDER, RELYING
ON ALASKA RULE OF CHILDREN'S PROCEDURE 23, /1/  AND ALASKA STAT. &
47.10.080 (G) (1971).  /2/ 

ALTHOUGH PREVENTED FROM REVEALING THAT GREEN HAD BEEN ON PROBATION
FOR THE JUVENILE DELINQUENCEY ADJUDICATION FOR BURGLARY AT THE SAME
TIME THAT HE ORIGINALLY IDENTIFIED PETITIONER, COUNSEL FOR PETITIONER
DID HIS BEST TO EXPOSE GREEN'S STATE OF MIND AT THE TIME GREEN
DISCOVERED THAT A STOLEN SAFE HAD BEEN DISCOVERED NEAR HIS HOME.  GREEN
DENIED THAT HE WAS UPSET OR UNCOMFORTABLE ABOUT THE DISCOVERY OF THE
SAFE.  HE CLAIMED NOT TO HAVE BEEN WORRIED ABOUT ANY SUSPICIONS THE
POLICE MIGHT HAVE BEEN EXPECTED TO HARBOR AGAINST HIM, THOUGH GREEN DID
ADMIT THAT IT CROSSED HIS MIND THAT THE POLICE MIGHT HAVE THOUGHT HE
HAD SOMETHING TO DO WITH THE CRIME. 

DEFENSE COUNSEL CROSS-EXAMINED GREEN IN PART AS FOLLOWS: 

     " Q. WERE YOU UPSET AT ALL BY THE FACT THAT THIS SAFE WAS
FOUND ON YOUR PROPERTY? 

     " A. NO, SIR. 

     " Q. DID YOU FEEL THAT THEY MIGHT IN SOME WAY SUSPECT YOU OF
THIS? 

     " A. NO. 

     " Q. DID YOU FEEL UNCOMFORTABLE ABOUT THIS THOUGH? 

     " A. NO, NOT REALLY. 

     "Q.  THE FACT THAT A SAFE WAS FOUND ON YOUR PROPERTY? 

     " A. NO. 

 " Q. DID YOU SUSPECT FOR A MOMENT THAT THE POLICE MIGHT SOMEHOW

  THINK THAT YOU WERE INVOLVED IN THIS? 

     " A. I THOUGHT THEY MIGHT ASK A FEW QUESTIONS IS ALL. 

" Q. DID THAT THOUGHT EVER ENTER YOUR MIND THAT YOU--THAT THE

  POLICE MIGHT THINK THAT YOU WERE SOMEHOW CONNECTED WITH THIS? 

     " A. NO, IT DIDN'T REALLY BOTHER ME, NO. 

  " Q. WELL, BUT ...., 

     " A. I MEAN, YOU KNOW, IT DIDN'T--IT DIDN'T COME INTO MY MIND
AS WORRYING ME, YOU KNOW. 

     " Q. THAT REALLY WASN'T--WASN'T MY QUESTION, MR. GREEN.  DID

  YOU THINK THAT -- NOT WHETHER IT WORRIED YOU SO MUCH OR NOT, BUT

  DID YOU FEEL THAT THERE WAS A POSSIBILITY THAT THE POLICE MIGHT

  SOMEHOW THINK THAT YOU HAD SOMETHING TO DO WITH THIS, THAT THEY

  MIGHT HAVE THAT IN THEIR MIND, NOT THAT YOU...., 

     " A. THAT CAME ACROSS MY MIND, YES, SIR. 

     " Q. THAT DID CROSS YOUR MIND? 

  " A. YES. 

     " Q. SO AS I UNDERSTAND IT YOU WENT DOWN TO THE--YOU DROVE IN

  WITH THE POLICE--IN THEIR CAR FROM MILE 25, GLENN HIGHWAY DOWN TO

  THE CITY POLICE STATION? 

     " A. YES, SIR. 

     " Q. AND THEN WENT INTO THE INVESTIGATOR'S ROOM WITH

  INVESTIGATOR GRAY AND INVESTIGATOR WEAVER? 

     " A. YEAH. 

     " Q. AND THEY STARTED ASKING YOU QUESTIONS ABOUT --, ABOUT THE
INCIDENT, IS THAT CORRECT? 

     " A. YEAH. 

     " Q. HAD YOU EVER BEEN QUESTIONED LIKE THAT BEFORE BY ANY LAW
ENFORCEMENT OFFICERS? 

     " A. NO. 

     " MR. RIPLEY:  I'M GOING TO OBJECT TO THIS, YOUR HONOR, IT'S A

  CARRY-ON WITH REHASH OF THE SAME THING.  HE'S ATTEMPTING TO RAISE

  IN THE JURY'S MIND...., 

     " THE COURT:  I'LL SUSTAIN THE OBJECTION."  SINCE DEFENSE
COUNSEL WAS PROHIBITED FROM MAKING INQUIRY AS TO THE WITNESS' BEING ON
PROBATION UNDER A JUVENILE COURT ADJUDICATION, GREEN'S PROTESTATIONS OF
UNCONCERN OVER POSSIBLE POLICE SUSPICION THAT HE MIGHT HAVE HAD A PART
IN THE POLAR BAR BURGLARY AND HIS CATEGORICAL DENIAL OF EVER HAVING
BEEN THE SUBJECT OF ANY SIMILAR LAW-ENFORCEMENT INTERROGATION WENT
UNCHALLENGED.  THE TENSION BETWEEN THE RIGHT OF CONFRONTATION AND THE
STATE'S POLICY OF PROTECTING THE WITNESS WITH A JUVENILE RECORD IS
PARTICULARLY EVIDENT IN THE FINAL ANSWER GIVEN BY THE WITNESS.  SINCE
IT IS PROBABLE THAT GREEN UNDERWENT SOME QUESTIONING BY POLICE WHEN HE
WAS ARRESTED FOR THE BURGLARIES ON WHICH HIS JUVENILE ADJUDICATION OF
DELINQUENCY RESTED, THE ANSWER CAN BE REGARDED AS HIGHLY SUSPECT AT THE
VERY LEAST.  THE WITNESS WAS IN EFFECT ASSERTING, UNDER PROTECTION OF
THE TRIAL COURT'S RULING, A RIGHT TO GIVE A QUESTIONABLY TRUTHFUL
ANSWER TO A CROSS-EXAMINER PURSUING A RELEVANT LINE OF INQUIRY; IT IS
DOUBTFUL WHETHER THE BOLD " NO" ANSWER WOULD HAVE BEEN GIVEN BY GREEN
ABSENT A BELIEF THAT HE WAS SHIELDED FROM TRADITIONAL CROSS
EXAMINATION.  IT WOULD BE DIFFICULT TO CONCEIVE OF A SITUATION MORE
CLEARLY ILLUSTRATING THE NEED FOR CROSS-EXAMINATION.  THE REMAINDER OF
THE CROSS-EXAMINATION WAS DEVOTED TO AN ATTEMPT TO PROVE THAT GREEN WAS
MAKING HIS IDENTIFICATION AT TRIAL ON THE BASIS OF WHAT HE REMEMBERED
FROM HIS EARLIER IDENTIFICATIONS AT THE PHOTOGRAPHIC DISPLAY AND
LINEUP, AND NOT ON THE BASIS OF GREEN'S FEBRUARY 16 CONFRONTATION WITH
THE TWO MEN ON THE ROAD. 

THE ALASKA SUPREME COURT AFFIRMED PETITIONER'S CONVICTION, /3/
CONCLUDING THAT IT DID NOT HAVE TO RESOLVE THE POTENTIAL CONFLICT IN
THIS CASE BETWEEN A DEFENDANT'S RIGHT TO A MEANINGFUL CONFRONTATION
WITH ADVERSE WITNESSES AND THE STATE'S INTEREST IN PROTECTING THE
ANONYMITY OF A JUVENILE OFFENDER SINCE "OUR READING OF THE TRIAL
TRANSCRIPT CONVINCES US THAT COUNSEL FOR THE DEFENDANT WAS ABLE
ADEQUATELY TO QUESTION THE YOUTH IN CONSIDERABLE DETAIL CONCERNING THE
POSSIBILITY OF BIAS OR MOTIVE."  499 P. 2D 1025, 1036 (1972).  ALTHOUGH
THE COURT ADMITTED THAT GREEN'S DENIALS OF ANY SENSE OF ANXIETY OR
APPREHENSION UPON THE SAFE'S BEING FOUND CLOSE TO HIS HOME WERE
POSSIBLY SELF-SERVING, "THE SUGGESTION WAS NONETHELESS BROUGHT TO THE
ATTENTION OF THE JURY, AND THAT BODY WAS AFFORDED THE OPPORTUNITY TO
OBSERVE THE DEMEANOR OF THE YOUTH AND PASS ON HIS CREDIBILITY."  IBID.
THE COURT CONCLUDED THAT, IN LIGHT OF THE INDIRECT REFERENCES
PERMITTED, THERE WAS NO ERROR. 

SINCE WE GRANTED CERTIORARI LIMITED TO THE QUESTION OF WHETHER
PETITIONER WAS DENIED HIS RIGHT UNDER THE CONFRONTATION CLAUSE TO
ADEQUATELY CROSS-EXAMINE GREEN, 410 U. S. 925 (1973), THE ESSENTIAL
QUESTION TURNS ON THE CORRECTNESS OF THE ALASKA COURT'S EVALUATION OF
THE "ADEQUACY" OF THE SCOPE OF CROSS-EXAMINATION PERMITTED.  WE
DISAGREE WITH THAT COURT'S INTERPRETATION OF THE CONFRONTATION CLAUSE
AND WE REVERSE. 

        (2) 

THE SIXTH AMENDMENT TO THE CONSTITUTION GUARANTEES THE RIGHT OF AN
ACCUSED IN A CRIMINAL PROSECUTION "TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM."  THIS RIGHT IS SECURED FOR DEFENDANTS IN STATE AS WELL AS
FEDERAL CRIMINAL PROCEEDINGS UNDER POINTER V. TEXAS, 380 U.S. 400
(1965).  CONFRONTATION MEANS MORE THAN BEING ALLOWED TO CONFRONT THE
WITNESS PHYSICALLY.  " OUR CASES CONSTRUING THE (CONFRONTATION) CLAUSE
HOLD THAT A PRIMARY INTEREST SECURED BY IT IS THE RIGHT OF CROSS
EXAMINATION."  DOUGLAS V. ALABAMA, 380 U.S. 415, 418 (1965).  PROFESSOR
WIGMORE STATED: 

     " THE MAIN AND ESSENTIAL PURPOSE OF CONFRONTATION IS TO SECURE

  FOR THE OPPONENT THE OPPORTUNITY OF CROSS-EXAMINATION.  THE

  OPPONENT DEMANDS CONFRONTATION NOT FOR THE IDLE PURPOSE OF GAZING

UPON THE WITNESS, OR OF BEING GAZED UPON BY HIM, BUT FOR THE

  PURPOSE OF CROSS-EXAMINATION, WHICH CANNOT BE HAD EXCEPT BY THE

  DIRECT AND PERSONAL PUTTING OF QUESTIONS AND OBTAINING IMMEDIATE

  ANSWERS."  5 J. WIGMORE, EVIDENCE & 1395, P. 123 (3D ED. 1940). 

CROSS-EXAMINATION IS THE PRINCIPAL MEANS BY WHICH THE BELIEVABILITY
OF A WITNESS AND THE TRUTH OF HIS TESTIMONY ARE TESTED.  SUBJECT ALWAYS
TO THE BROAD DISCRETION OF A TRIAL JUDGE TO PRECLUDE REPETITIVE AND
UNDULY HARASSING INTERROGATION, THE CROSS-EXAMINER IS NOT ONLY
PERMITTED TO DELVE INTO THE WITNESS' STORY TO TEST THE WITNESS'
PERCEPTION AND MEMORY, BUT THE CROSS-EXAMINER HAS TRADITIONALLY BEEN
ALLOWED TO IMPEACH, I.E., DISCREDIT, THE WITNESS.  ONE WAY OF
DISCREDITING THE WITNESS IS TO INTRODUCE EVIDENCE OF A PRIOR CRIMINAL
CONVICTION OF THAT WITNESS.  BY SO DOING THE CROSS-EXAMINER INTENDS TO
AFFORD THE JURY A BASIS TO INFER THAT THE WITNESS' CHARACTER IS SUCH
THAT HE WOULD BE LESS LIKELY THAN THE AVERAGE TRUSTWORTHY CITIZEN TO BE
TRUTHFUL IN HIS TESTIMONY.  THE INTRODUCTION OF EVIDENCE OF A PRIOR
CRIME IS THUS A GENERAL ATTACK ON THE CREDIBILITY OF THE WITNESS.  A
MORE PARTICULAR ATTACK ON THE WITNESS' CREDIBILITY IS EFFECTED BY MEANS
OF CROSS-EXAMINATION DIRECTED TOWARD REVEALING POSSIBLE BIASES,
PREJUDICES, OR ULTERIOR MOTIVES OF THE WITNESS AS THEY MAY RELATE
DIRECTLY TO ISSUES OR PERSONALITIES IN THE CASE AT HAND.  THE
PARTIALITY OF A WITNESS IS SUBJECT TO EXPLORATION AT TRIAL, AND IS
"ALWAYS RELEVANT AS DISCREDITING THE WITNESS AND AFFECTING THE WEIGHT
OF HIS TESTIMONY."  3 A J. WIGMORE, EVIDENCE & 940, P. 775 (CHADBOURN
REV. 1970).  WE HAVE RECOGNIZED THAT THE EXPOSURE OF A WITNESS'
MOTIVATION IN TESTIFYING IS A PROPER AND IMPORTANT FUNCTION OF THE
CONSTITUTIONALLY PROTECTED RIGHT OF CROSS-EXAMINATION.  GREENE V. MC
ELROY, 360 U. S. 474, 496 (1959).  /4/ 

IN THE INSTANT CASE, DEFENSE COUNSEL SOUGHT TO SHOW THE EXISTENCE OF
POSSIBLE BIAS AND PREJUDICE OF GREEN, CAUSING HIM TO MAKE A FAULTY
INITIAL IDENTIFICATION OF PETITIONER, WHICH IN TURN COULD HAVE AFFECTED
HIS LATER IN-COURT IDENTIFICATION OF PETITIONER.  /5/     WE CANNOT
SPECULATE AS TO WHETHER THE JURY, AS SOLE JUDGE OF THE CREDIBILITY OF A
WITNESS, WOULD HAVE ACCEPTED THIS LINE OF REASONING HAD COUNSEL BEEN
PERMITTED TO FULLY PRESENT IT.  BUT WE DO CONCLUDE THAT THE JURORS WERE
ENTITLED TO HAVE THE BENEFIT OF THE DEFENSE THEORY BEFORE THEM SO THAT
THEY COULD MAKE AN INFORMED JUDGMENT AS TO THE WEIGHT TO PLACE ON
GREEN'S TESTIMONY WHICH PROVIDED "A CRUCIAL LINK IN THE PROOF...OF
PETITIONER'S ACT."  DOUGLAS V. ALABAMA, 380 U.S., AT 419.  THE ACCURACY
AND TRUTHFULNESS OF GREEN'S TESTIMONY WERE KEY ELEMENTS IN THE STATE'S
CASE AGAINST PETITIONER.  THE CLAIM OF BIAS WHICH THE DEFENSE SOUGHT TO
DEVELOP WAS ADMISSIBLE TO AFFORD A BASIS FOR AN INFERENCE OF UNDUE
PRESSURE BECAUSE OF GREEN'S VULNERABLE STATUS AS A PROBATIONER, CF.
ALFORD V. UNITED STATES, 282 U.S. 687 (1931), /6/  AS WELL AS OF
GREEN'S POSSIBLE CONCERN THAT HE MIGHT BE A SUSPECT IN THE
INVESTIGATION. 

WE CANNOT ACCEPT THE ALASKA SUPREME COURT'S CONCLUSION THAT THE
CROSS-EXAMINATION THAT WAS PERMITTED DEFENSE COUNSEL WAS ADEQUATE TO
DEVELOP THE ISSUE OF BIAS PROPERLY TO THE JURY.  WHILE COUNSEL WAS
PERMITTED TO ASK GREEN WHETHER HE WAS BIASED, COUNSEL WAS UNABLE TO
MAKE A RECORD FROM WHICH TO ARGUE WHY GREEN MIGHT HAVE BEEN BIASED OR
OTHERWISE LACKED THAT DEGREE OF IMPARTIALITY EXPECTED OF A WITNESS AT
TRIAL.  ON THE BASIS OF THE LIMITED CROSS-EXAMINATION THAT WAS
PERMITTED, THE JURY MIGHT WELL HAVE THOUGHT THAT DEFENSE COUNSEL WAS
ENGAGED IN A SPECULATIVE AND BASELESS LINE OF ATTACK ON THE CREDIBILITY
OF AN APPARENTLY BLAMELESS WITNESS OR, AS THE PROSECUTOR'S OBJECTION
PUT IT, A "REHASH" OF PRIOR CROSS-EXAMINATION.  ON THESE FACTS IT SEEMS
CLEAR TO US THAT TO MAKE ANY SUCH INQUIRY EFFECTIVE, DEFENSE COUNSEL
SHOULD HAVE BEEN PERMITTED TO EXPOSE TO THE JURY THE FACTS FROM WHICH
JURORS, AS THE SOLE TRIERS OF FACT AND CREDIBILITY, COULD APPROPRIATELY
DRAW INFERENCES RELATING TO THE RELIABILITY OF THE WITNESS.  PETITIONER
WAS THUS DENIED THE RIGHT OF EFFECTIVE CROSS-EXAMINATION WHICH "'WOULD
BE CONSTITUTIONAL ERROR OF THE FIRST MAGNITUDE AND NO AMOUNT OF SHOWING
OF WANT OF PREJUDICE WOULD CURE IT.'  BROOKHART V. JANIS, 384 U.S. 1,
3."  SMITH V. ILLINOIS, 390 U.S. 129, 131 (1968). 

        (3) 

THE CLAIM IS MADE THAT THE STATE HAS AN IMPORTANT INTEREST IN
PROTECTING THE ANONYMITY OF JUVENILE OFFENDERS AND THAT THIS INTEREST
OUTWEIGHS ANY COMPETING INTEREST THIS PETITIONER MIGHT HAVE IN CROSS
EXAMINING GREEN ABOUT HIS BEING ON PROBATION.  THE STATE ARGUES THAT
EXPOSURE OF A JUVENILE'S RECORD OF DELINQUENCY WOULD LIKELY CAUSE
IMPAIRMENT OF REHABILITATIVE GOALS OF THE JUVENILE CORRECTIONAL
PROCEDURES.  THIS EXPOSURE, IT IS ARGUED, MIGHT ENCOURAGE THE JUVENILE
OFFENDER TO COMMIT FURTHER ACTS OF DELINQUENCY, OR CAUSE THE JUVENILE
OFFENDER TO LOSE EMPLOYMENT OPPORTUNITIES OR OTHERWISE SUFFER
UNNECCESSARILY FOR HIS YOUTHFUL TRANGRESSION. 

WE DO NOT AND NEED NOT CHALLENGE THE STATE'S INTEREST AS A MATTER OF
ITS OWN POLICY IN THE ADMINISTRATION OF CRIMINAL JUSTICE TO SEEK TO
PRESERVE THE ANONYMITY OF A JUVENILE OFFENDER.  CF. IN RE GAULT, 387
U.S. 1, 25 (1967).  HERE, HOWEVER, PETITIONER SOUGHT TO INTRODUCE
EVIDENCE OF GREEN'S PROBATION FOR THE PURPOSE OF SUGGESTING, THAT GREEN
WAS BIASED AND, THEREFORE, THAT HIS TESTIMONY WAS EITHER NOT TO BE
BELIEVED IN HIS IDENTIFICATION OF PETITIONER OR AT LEAST VERY CAREFULLY
CONSIDERED IN THAT LIGHT.  SERIOUS DAMAGE TO THE STRENGTH OF THE
STATE'S CASE WOULD HAVE BEEN A REAL POSSIBILITY HAD PETITIONER BEEN
ALLOWED TO PURSUE THIS LINE OF INQUIRY.  IN THIS SETTING WE CONCLUDE
THAT THE RIGHT OF CONFRONTATION IS PARAMOUNT TO THE STATE'S POLICY OF
PROTECTING A JUVENILE OFFENDER.  WHATEVER TEMPORARY EMBARRASSMENT MIGHT
RESULT TO GREEN OR HIS FAMILY BY DISCLOSURE OF HIS JUVENILE RECORD--,
IF THE PROSECUTION INSISTED ON USING HIM TO MAKE ITS CASE--, IS
OUTWEIGHED BY PETITIONER'S RIGHT TO PROBE INTO THE INFLUENCE OF
POSSIBLE BIAS IN THE TESTIMONY OF A CRUCIAL IDENTIFICATION WITNESS. 

IN ALFORD V. UNITED STATES, SUPRA, WE UPHELD THE RIGHT OF DEFENSE
COUNSEL TO IMPEACH A WITNESS BY SHOWING THAT BECAUSE OF THE WITNESS'
INCARCERATION IN FEDERAL PRISON AT THE TIME OF TRIAL, THE WITNESS'
TESTIMONY WAS BIASED AS "GIVEN UNDER PROMISE OR EXPECTATION OF
IMMUNITY, OR UNDER THE COERCIVE EFFECT OF HIS DETENTION BY OFFICERS OF
THE UNITED STATES."  282 U.S., AT 693.  IN RESPONSE TO THE ARGUMENT
THAT THE WITNESS HAD A RIGHT TO BE PROTECTED FROM EXPOSURE OF HIS
CRIMINAL RECORD, THE COURT STATED: 

"(NO OBLIGATION IS IMPOSED ON THE COURT, SUCH AS THAT SUGGESTED
BELOW, TO PROTECT A WITNESS FROM BEING DISCREDITED ON CROSS
EXAMINATION, SHORT OF AN ATTEMPTED INVASION OF HIS CONSTITUTIONAL
PROTECTION FROM SELF INCRIMINATION, PROPERLY INVOKED.  THERE IS A DUTY
TO PROTECT HIM FROM QUESTIONS WHICH GO BEYOND THE BOUNDS OF PROPER
CROSS-EXAMINATION MERELY TO HARASS, ANNOY, OR HUMILIATE HIM."  ID., AT
694.  AS IN ALFORD, WE CONCLUDE THAT THE STATE'S DESIRE THAT GREEN
FULFILL HIS PUBLIC DUTY TO TESTIFY FREE FROM EMBARRASSMENT AND WITH HIS
REPUTAION UNBLEMISHED MUST FALL BEFORE THE RIGHT OF PETITIONER TO SEEK
OUT THE TRUTH IN THE PROCESS OF DEFENDING HIMSELF. 

THE STATE'S POLICY INTEREST IN PROTECTING THE CONFIDENTIALITY OF A
JUVENILE OFFENDER'S RECORD CANNOT REQUIRE YIELDING OF SO VITAL A
CONSTITUTIONAL RIGHT AS THE EFFECTIVE CROSS-EXAMINATION FOR BIAS OF AN
ADVERSE WITNESS.  THE STATE COULD HAVE PROTECTED GREEN FROM EXPOSURE OF
HIS JUVENILE ADJUDICATION IN THESE CIRCUMSTANCES BY REFRAINING FROM
USING HIM TO MAKE OUT ITS CASE; THE STATE CANNOT, CONSISTENT WITH THE
RIGHT OF CONFRONTATION, REQUIRE THE PETITIONER TO BEAR THE FULL BURDEN
OF VINDICATING THE STATE'S INTEREST IN THE SECRECY OF JUVENILE CRIMINAL
RECORDS.  THE JUDGMENT AFFIRMING PETITIONER'S CONVICTIONS OF BURGLARY
AND GRAND LARCENY IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

      IT IS SO ORDERED. 

/1/  RULE 23 PROVIDES: 

" NO ADJUDICATION, ORDER, OR DISPOSITION OF A JUVENILE CASE SHALL BE
ADMISSIBLE IN A COURT NOT ACTING IN THE EXERCISE OF JUVENILE
JURISDICTION EXCEPT FOR USE IN A PRESENTENCING PROCEDURE IN A CRIMINAL
CASE WHERE THE SUPERIOR COURT, IN ITS DISCRETION, DETERMINES THAT SUCH
USE IS APPROPRIATE." 

/2/  SECTION 47.10.080 (G) PROVIDES IN PERTINENT PART:  " THE
COMMITMENT AND PLACEMENT OF A CHILD AND EVIDENCE GIVEN IN THE COURT ARE
NOT ADMISSIBLE AS EVIDENCE AGAINST THE MINOR IN A SUBSEQUENT CASE OR
PROCEEDINGS IN ANY OTHER COURT...." 

/3/  IN THE SAME OPINION THE ALASKA SUPREME COURT ALSO AFFIRMED
PETITIONER'S CONVICTION, FOLLOWING A SEPARATE TRIAL, FOR BEING A FELON
IN POSSESSION OF A CONCEALABLE FIREARM.  THAT CONVICTION IS NOT IN
ISSUE BEFORE THIS COURT. 

/4/  IN GREENE WE STATED: 

" CERTAIN PRINCIPLES HAVE REMAINED RELATIVELY IMMUTABLE IN OUR
JURISPRUDENCE.  ONE OF THESE IS THAT WHERE GOVERMENTAL ACTION SERIOUSLY
INJURES AN INDIVIDUAL, AND THE REASONABLENESS OF THE ACTION DEPENDS ON
FACT FINDINGS, THE EVIDENCE USED TO PROVE THE GOVERNMENT'S CASE MUST BE
DISCLOSED TO THE INDIVIDUAL SO THAT HE HAS AN OPPORTUNITY TO SHOW THAT
IT IS UNTRUE.  WHILE THIS IMPORTANT IN THE CASE OF DOCUMENTARY
EVIDENCE, IT IS EVEN MORE IMPORTANT WHERE THE EVIDENCE CONSISTS OF THE
TESTIMONY OF INDIVIDUALS WHOSE MEMORY MIGHT BE FAULTY OR WHO, IN FACT,
MIGHT BE PERJURERS OR PERSONS MOTIVATED BY MALICE, VINDICTIVENESS,
INTOLERANCE, PREJUDICE, OR JEALOUSY.  WE HAVE FORMALIZED THESE
PROTECTIONS IN THE REQUIREMENTS OF CONFRONTATION AND CROSS
EXAMINATION..."  360 U.S., AT 496. 

/5/  "(A) PARTIALITY OF MIND AT SOME FORMER TIME MAY BE USED AS THE
BASIS OF AN ARGUMENT TO THE SAME STATE AT THE TIME OF TESTIFYING;
THOUGH THE ULTIMATE OBJECT IS TO ESTABLISH PARTIALITY AT THE TIME OF
TESTIFYING."  3A J. WIGMORE, EVIDENCE, & 940, P. 776 (CHADBOURN REV.
1970). 

/6/  ALTHOUGH ALFORD INVOLVED A FEDERAL CRIMINAL TRIAL AND WE
REVERSED BECAUSE OF ABUSE OF DISCRETION AND PREJUDICIAL ERROR, THE
CONSTITUTIONAL DIMENSION OF OUR HOLDING IN ALFORD IS NOT IN DOUBT.  IN
SMITH V. ILLINOIS, 390 U.S. 129, 132 - 133 (1968), WE RELIED, IN PART,
ON ALFORD TO REVERSE A STATE CRIMINAL CONVICTION ON CONFRONTATION
GROUNDS. 

MR. JUSTICE STEWART, CONCURRING. 

THE COURT HOLDS THAT, IN THE CIRCUMSTANCES OF THIS CASE, THE SIXTH
AND FOURTEENTH AMENDMENTS CONFERRED THE RIGHT TO CROSS-EXAMINE A
PARTICULAR PROSECUTION WITNESS ABOUT HIS DELINQUENCY ADJUDICATION FOR
BURGLARY AND HIS STATUS AS A PROBATIONER.  SUCH CROSS-EXAMINATION WAS
NECESSARY IN THIS CASE IN ORDER "TO SHOW THE EXISTENCE OF POSSIBLE BIAS
AND PREJUDICE...," ANTE, AT 317.  IN JOINING THE COURT'S OPINION, I
WOULD EMPHASIZE THAT THE COURT NEITHER HOLDS NOR SUGGEST THAT THE
CONSTITUTION CONFERS A RIGHT IN EVERY CASE TO IMPEACH THE GENERAL
CREDIBILITY OF A WITNESS THROUGH CROSS-EXAMINATION ABOUT HIS PAST
DELINQUENCY ADJUDICATIONS OR CRIMINAL CONVICTIONS. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

AS I SEE IT, THERE IS NO CONSTITUTIONAL PRINCIPLE AT STAKE HERE. 
THIS IS NOTHING MORE THAN A TYPICAL INSTANCE OF A TRIAL COURT
EXERCISING ITS DISCRETION TO CONTROL OR LIMIT CROSS-EXAMINATION,
FOLLOWED BY A TYPICAL DECISION OF A STATE APPELLATE COURT REFUSING TO
DISTURB THE JUDGMENT OF THE TRIAL COURT AND ITSELF CONCLUDING THAT
LIMITING CROSS-EXAMINATION HAD DONE NO SUBSTANTIAL HARM TO THE
DEFENSE.  YET THE COURT INSISTS ON SECOND-GUESSING THE STATE COURTS AND
IN EFFECT INVITING FEDERAL REVIEW OF EVERY RULING OF A STATE TRIAL
JUDGE WHO BELIEVES CROSS-EXAMINATION HAS GONE FAR ENOUGH.  I WOULD NOT
UNDERTAKE THIS TASK, IF FOR NO OTHER REASON THAN THAT I HAVE LITTLE
FAITH IN OUR ABILITY, IN FACT-BOUND CASES AND ON A COLD RECORD, TO
IMPROVE ON THE JUDGMENT OF TRIAL JUDGES AND OF THE STATE APPELLATE
COURTS WHO AGREE WITH THEM.  I WOULD AFFIRM THE JUDGMENT. 

ROBERT H. WAGSTAFF ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

CHARLES M. MERRINER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS JOHN E. HAVELOCK, ATTORNEY GENERAL OF ALASKA: 

WILLIAM P. HOMANS, JR., FILED A BRIEF FOR ARTHUR BEMBURY AS AMICUS
CURIAE. 
..END :





NLRB V. MAGNAVOX CO., 415 U.S. 322 


       NATIONAL LABOR RELATIONS BOARD V. MAGNOVOX COMPANY OF

           TENNESSEE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 72 - 1637.  ARGUED JANUARY 14 - 15, 1974--, DECIDED

           FEBRUARY 27, 1974; 474 F.2D 1269, REVERSED. 


    AT THE TIME REPONDENT COMPANY ENTERED INTO A

  COLLECTIVE-BARGAINING AGREEMENT WITH A UNION, RESPONDENT HAD A

  BLANKET RULE AGAINST DISTRIBUTION BY EMPLOYEES OF LITERATURE ON

  COMPANY PROPERTY.  THE COLLECTIVE AGREEMENT AND SUBSEQUENT

  CONTRACTS AUTHORIZED THE COMPANY TO ISSUE FAIR AND

  NONDISCRIMINATORY RULES FOR MAINTAINING ORDERLY CONDITIONS ON

  PLANT PROPERTY AND ALSO PROVIDED FOR BULLETIN BOARDS FOR UNION

  NOTICES.  THE UNION ULTIMATELY CHALLENGED THE RULES'S VALIDITY,

  AND UPON DENIAL OF ITS REQUEST FOR A CHANGE, FILED

  UNFAIR-LABOR-PRACTICE CHARGES AGAINST RESPONDENT; WHICH THE

  NATIONAL LABOR RELATIONS BOARD (NLRB) UPHELD.  THE COURT OF

  APPEALS DENIED ENFORCEMENT OF THE NLRB'S ORDER, FINDING THAT THE

  UNION HAD WAIVED THE ON-PREMISES DISTRIBUTION BAN.  HELD:

  RESPONDENT'S BAN MIGHT INTERFERE WITH THE EMPLOYEES' RIGHTS UNDER

  7 OF THE NATIONAL LABOR RELATIONS ACT "TO FORM, JOIN, OR ASSIST

LABOR ORGANIZATIONS," OR TO REFRAIN FROM SUCH ACTIVITIES, AND

  SUCH RIGHTS, UNLIKE THOSE IN THE ECONOMIC AREA, CANNOT BE WAIVED

  BY THE EMPLOYEES' COLLECTIVE-BARGAINING REPRESENTATIVE.  THE

  BULLETIN-BOARD PROVISION DID NOT AFFORD AN ADEQUATE ALTERNATIVE,

  SINCE IT DID NOT GIVE THE UNION'S ADVERSARIES EQUAL ACCESS OF

  COMMUNICATIONS WITH THEIR FELLOW EMPLOYEES.  PP. 324 - 327. 

     DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C. J., AND BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ.,

  JOINED.  STEWART, J., FILED AN OPINION CONCURRING IN PART AND

  DISSENTING IN PART, IN WHICH POWELL AND REHNQUIST, JJ JOINED,

POST, P. 327. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1954, THE INTERNATIONAL UNION OF ELECTRICAL RADIO, AND MACHINE
WORKERS (IUE) BECAME THE COLLECTIVE-BARGAINING REPRESENTATIVE OF
REPONDENT'S EMPLOYEES.  AT THAT TIME RESPONDENT HAD A RULE PROHIBITING
EMPLOYEES FROM DISTRIBUTING LITERATURE ON ANY OF ITS PROPERTY,
INCLUDING PARKING LOTS AND OTHER NONWORK AREAS.  THE COLLECTIVE
AGREEMENT AUTHORIZED THE COMPANY TO ISSUE RULES FOR THE "MAINTENANCE OF
ORDERLY CONDITIONS ON PLANT PROPERTY," PROVIDED THE RULES WERE NOT
"UNFAIR" OR "DISCRIMINATORY."  IT ALSO PROVIDED THAT BULLETIN BOARDS
WOULD BE AVAILABLE FOR THE POSTING OF UNION NOTICES, SUBJECT TO THE
COMPANY'S RIGHT TO REJECT "CONTROVERSIAL"  NOTICES.  ALL SUBSEQUENT
CONTRACTS CONTAINED SIMILAR PROVISIONS.  THROUGHOUT THE PERIOD SINCE
1954 RESPONDENT HAS PROHIBITED EMPLOYEES FROM DISTRIBUTING LITERATURE
EVEN IN NONWORKING AREAS DURING NONWORKING TIME. 

IN DUE COURSE, THE IUE CHALLENGED THE VALIDITY OF THE COMPANY'S RULE
AND REQUESTED THAT THE RULE BE CHANGED.  THE REQUEST WAS DENIED AND THE
IUE FILED CHARGES AGAINST RESPONDENT FOR UNFAIR LABOR PRACTICES IN
VIOLATION OF & 8 (A) (1) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT.
452, AS AMENDED, 29 U.S.C. 158 (A)(1).  THE BOARD HELD FOR THE IUE,
FOLLOWING ITS EARLIER DECISION IN GALE PRODUCTS, 142 N.L.R.B. 1246,
WHERE IT HAD SAID: 

     " THEIR PLACE OF WORK IS THE ONE LOCATION WHERE EMPLOYEES ARE

  BROUGHT TOGETHER ON A DAILY BASIS.  IT IS THE ONE PLACE WHERE

THEY CLEARLY SHARE COMMON INTERESTS AND WHERE THEY TRADITIONALLY

  SEEK TO PERSUADE FELLOW WORKERS IN MATTERS AFFECTING THEIR UNION

  ORGANIZATIONAL LIFE AND OTHER MATTERS RELATED TO THEIR STATUS AS

  EMPLOYEES."  ID., AT 1249. 

THE REMEDY IN GALE PRODUCTS RAN IN FAVOR OF EMPLOYEES WHOSE
DISTRIBUTION PROJECT WAS TO REJECT A UNION REPRESENTATIVE.  THE BOARD
IN THE PRESENT CASE, HOWEVER, BROADENED THE RELIEF TO EMBRACE THOSE WHO
WANTED TO SUPPORT A UNION REPRESENTATIVE, 195 N.L.R.B. 265.  THE COURT
OF APPEALS DENIED ENFORCEMENT OF THE BOARD'S ORDER, BECAUSE IN ITS VIEW
THE UNION HAD WAIVED THE BAN ON ON-PREMISES DISTRIBUTION OF LITERATURE
AND HAD THE AUTHORITY TO DO SO.  474 F.2D 1269.  THE CASE IS HERE ON
PETITION FOR CERTIORARI WHICH WE GRANTED BECAUSE OF THE CONFLICT
BETWEEN THIS DECISION OF THE SIXTH CIRCUIT COURT OF APPEALS WITH THAT
OF THE EIGHTH IN INTERNATIONAL ASSOCIATION OF MACHINISTS V. NLRB, 415
F.2D 113, AND THAT OF THE FIFTH IN NLRB V. MID-STATES METAL PRODUCTS,
403 F.2D 702. 

EMPLOYEES HAVE THE RIGHT RECOGNIZED IN 7 OF THE ACT "TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS" OR "TO REFRAIN" FROM SUCH ACTIVITIES. 
29 U.S.C. 157.  WE AGREE THAT A BAN ON THE DISTRIBUTION OF UNION
LITERATURE OR THE SOLICITATION OF UNION SUPPORT BY EMPLOYEES AT THE
PLANT DURING NONWORKING TIME MAY CONSTITUTE AN INTERFERENCE WITH 7
RIGHTS.  THE BOARD HAD EARLIER HELD THAT SOLICITATION OUTSIDE WORKING
HOURS BUT ON COMPANY PROPERTY WAS PROTECTED BY 7 AND THAT A RULE
PROHIBITING IT WAS "DISCRIMINATORY IN THE ABSENCE OF EVIDENCE THAT
SPECIAL CIRCUMSTANCES MAKE THE RULE NECESSARY IN ORDER TO MAINTAIN
PRODUCTION OR DISCIPLINE."  IN RE PEYTON PACKING CO., 49 N.L.R.B. 828,
843 - 844.  WE APPROVED THAT RULING IN REPUBLIC AVIATION CORP. V. NLRB,
324 U.S. 793, 801 - 803.  NO CONTENTION IS MADE HERE THAT
CONSIDERATIONS OF PRODUCTION OR DISCIPLINE MAKE RESPONDENT'S RULE
NECESSARY.  THE SOLE ISSUE CONCERNS THE POWER OF THE COLLECTIVE
BARGAINING REPRESENTATIVE TO WAIVE THOSE RIGHTS. 

THE UNION MAY, OF COURSE, REACH AN AGREEMENT AS TO WAGES AND OTHER
EMPLOYMENT BENEFITS AND WAIVE THE RIGHT TO STRIKE DURING THE TIME OF
THE AGREEMENT AS THE QUID PRO QUO FOR THE EMPLOYER'S ACCEPTANCE OF THE
GRIEVANCE AND ARBITRATION PROCEDURE.  TEXTILE WORKERS V. LINCOLN MILLS,
353 U.S. 448, 455.  SUCH AGREEMENTS, HOWEVER, REST ON "THE PREMISE OF
FAIR REPRESENTATION"  AND PRESUPPOSE THAT THE SELECTION OF THE
BARGAINING REPRESENTATIVE "REMAINS FREE."  MASTRO PLASTICS CORP. V.
NLRB, 350 U.S. 270, 280.  IN THAT CASE WE HELD THAT THE WAIVER OF THE
"RIGHT TO STRIKE" DID NOT EMBRACE A WAIVER OF THE RIGHT TO STRIKE
"AGAINST UNLAWFUL PRACTICES DESTRUCTIVE OF THE FOUNDATION ON WHICH
COLLECTIVE BARGAINING MUST REST."  ID., AT 281.  WE DEALT THERE WITH
RIGHTS IN THE ECONOMIC AREA.  YET, AS THE FIFTH CIRCUIT HELD IN THE MID
STATES CASE, A DIFFERENT RULE SHOULD OBTAIN WHERE THE RIGHTS OF THE
EMPLOYEES TO EXERCISE THEIR CHOICE OF A BARGAINING REPRESENTATIVE IS
INVOLVED--WHETHER TO HAVE NO BARGAINING REPRESENTATIVE, OR TO RETAIN
THE PRESENT ONE, OR TO OBTAIN A NEW ONE.  WHEN THE RIGHT TO SUCH A
CHOICE IS AT ISSUE, IT IS DIFFICULT TO ASSUME THAT THE INCUMBENT UNION
HAS NO SELF-INTEREST OF ITS OWN TO SERVE BY PERPETUATING ITSELF AS THE
BARGAINING REPRESENTATIVE.  403 F.2D, AT 705.  THE PLACE OF WORK IS A
PLACE UNIQUELY APPROPRIATE FOR DISSEMINATION OF VIEWS CONCERNING THE
BARGAINING REPRESENTATIVE AND THE VARIOUS OPTIONS OPEN TO THE
EMPLOYEES.  SO LONG AS THE DISTRIBUTION IS BY EMPLOYEES TO EMPLOYEES
AND SO LONG AS THE IN-PLANT SOLICITAION IS ON NONWORKING TIME, BANNING
OF THAT SOLICITATION MIGHT SERIOUSLY DILUTE 7 RIGHTS.  FOR CONGRESS
DECLARED IN 1 OF THE ACT THAT IT WAS THE POLICY OF THE UNITED STATES TO
PROTECT "THE EXERCISE BY WORKERS OF FULL FREEDOM OF ASSOCIATION, SELF
ORGANIZATION, AND DESIGNATION OF REPRESENTATIVES OF THEIR OWN
CHOOSING."  29 U.S.C. 151. 

IT IS ARGUED THAT THE USE OF THE BULLETIN BOARD IS A FAIR
SUBSTITUTE.  BUT AS THE FIFTH CIRCUIT SAID IN THE MID-STATES CASE THE
BULLETIN BOARD MAY BE AN ADEQUATE MEDIUM FOR "PRESERVING THE STATUS
QUO" AND YET NOT GIVE A UNION'S ADVERSARIES "EQUAL ACCESS TO AND
COMMUNICATION WITH THEIR FELLOW EMPLOYEES."  403 F.2D, AT 705. 

MOREOVER, A LIMITATION OF THE RIGHT OF IN-PLANT DISTRIBUTION OF
LITERATURE TO EMPLOYEES OPPOSING THE UNION DOES NOT GIVE A FAIR BALANCE
TO 7 RIGHTS, AS THE BOARD RULED IN THE PRESENT CASE.  FOR EMPLOYEES
SUPPORTING THE UNION HAVE AS SECURE 7 RIGHTS AS THOSE IN OPPOSITION. 
THE BOARD'S POSITION, AS NOTED, HAS NOT ALWAYS BEEN CONSISTENT.  BUT
ITS PRESENT RULING IS, WE THINK, QUITE CONSISTENT WITH 7 RIGHTS OF
EMPLOYEES.  IT IS THE BOARD'S FUNCTION TO STRIKE A BALANCE AMONG
"CONFLICTING LEGITIMATE INTERESTS"  WHICH WILL "EFFECTUATE NATIONAL
LABOR POLICY," INCLUDING THOSE WHO SUPPORT VERSUS THOSE WHO OPPOSE THE
UNION.  NLRB V. TRUCK DRIVERS UNION, 353 U.S. 87, 96.  MOREOVER, AS
RESPECTS EMPLOYERS, THE RIGHTS OF SOLICITATION OF EMPLOYEES BY
EMPLOYEES CONCERNING 7 RIGHTS ARE NOT ABSOLUTE.  AS WE NOTED IN
REPUBLIC AVIATION CORP. THE BOARD MAY WELL CONCLUDE THAT CONSIDERATIONS
OF PRODUCTION OR DISCIPLINE MAY MAKE CONTROLS NECESSARY.  NO SUCH
EVIDENCE EXISTED HERE AND THE TRIAL EXAMINER SO FOUND.  ACCORDINGLY,
THIS IS NOT THE OCCASION TO BALANCE THE AVAILABILITY OF ALTERNATIVE
CHANNELS OF COMMUNICATION /1/  AGAINST A LEGITIMATE EMPLOYER BUSINESS
JUSTIFICATION FOR BARRING OR LIMITING IN-PLANT COMMUNICATIONS. 

              REVERSED. 

/1/  IUE, IN A BRIEF SUPPORTING THE BOARD'S POSITION, STATES THERE
ARE SOME 2,300 EMPLOYEES IN THE BARGAINING UNIT WHO LIVE SCATTERED OVER
A TWO-STATE AREA COVERING MORE THAN 100 SQUARE MILES.  THE PLANT IS
LOCATED IN GREENVILLE, TENNESSEE.  SOME WORKERS LIVE 30 MILES DISTANT
IN JOHNSON CITY, TENNESSEE, AND OTHERS LIVE IN MORRISON, NORTH
CAROLINA.  IT CLAIMS THAT HANDING OUT LEAFLETS AT THE PLANT GATE IS
IMPRACTICAL AS CARS ENTER OR EXIT FOUR ABREAST AT FAST SPEEDS.  WE
MENTION THESE STATEMENTS NOT TO RESOLVE A CONTROVERSY, BUT TO INDICATE
AT LEAST A PART OF THE RANGE OF ANY INQUIRY INTO THE NEED FOR IN-PLANT
SOLICITATION IF 7 RIGHTS ARE TO BE PROTECTED. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE POWELL AND MR. JUSTICE
REHNQUIST JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

TO THE EXTENT THE COURT HOLDS THAT A UNION CANNOT CONTRACTUALLY
WAIVE THE RIGHT OF DISAFFECTED EMPLOYEES TO DISTRIBUTE IN NONWORK AREAS
AND DURING NONWORK TIME LITERATURE ADVOCATING THE DISPLACEMENT OF THE
INCUMBENT COLLECTIVE-BARGAINING REPRESENTATIVE, I AM IN COMPLETE
AGREEMENT.  THIS IS THE ESSENCE OF THE BOARD'S DECISION IN GALE
PRODUCTS, 142 N.L.R.B. 1246.  BUT IT SEEMS TO ME WHOLLY INCONSISTENT
WITH THE LETTER AND SPIRIT OF THE NATIONAL LABOR RELATIONS ACT TO
RELIEVE THE UNION OF ITS PROMISE THAT ITS OWN SELF-SERVING LITERATURE
WILL NOT BE SO DISTRIBUTED IN THE PLANT. 

ALTHOUGH THE UNION IS DEEMED TO REPRESENT ALL EMPLOYEES IN THE
BARGAINING UNIT, BOTH PRO-UNION AND ANTI-UNION, AND MAY WAIVE IMPORTANT
7 RIGHTS IN THE COURSE OF COLLECTIVE BARGAINING, PRESUMABLY IN RETURN
FOR MANAGEMENT CONCESSIONS ON OTHER FRONTS, THIS AUTHORITY CANNOT
EXTEND TO RIGHTS WITH RESPECT TO WHICH THE UNION AND THE INDIVIDUAL
EMPLOYEES HAVE ESSENTIALLY CONFLICTING INTERESTS.  THE BOARD STATED THE
POINT SUCCINCTLY IN ITS DECISION IN GENERAL MOTORS CORP., 158 N.L.R.B.
1723, 1727: 

"(THE EMPLOYEES, BY ONCE SELECTING THE UNION AS THEIR
REPRESENTATIVE, DO NOT FORFEIT THEIR FUNDAMENTAL RIGHT TO CHANGE THEIR
REPRESENTATIVE AT APPROPRIATE TIMES.  WHEN A UNION ACTS TO ABRIDGE THAT
RIGHT IN THE MANNER PRESENTED IN THIS CASE, IT IS ESSENTIALLY
BENEFITING THE UNION QUA UNION, TO THE DETRIMENT OF THE EMPLOYEES IT
REPRESENTS."  ANY SUCH ATTEMPTED WAIVER OF THE RIGHTS OF OTHERS IS SO
CLEARLY IN THE UNION'S SELF-INTEREST OF PERPETUATING ITS STATUS AS THE
BARGAINING AGENT, AND AT ODDS WITH THE INTERESTS OF THE DISAFFECTED
EMPLOYEES, THAT "THE PREMISE OF FAIR REPRESENTAION" UNDERLYING
CONTRACTUAL WAIVERS OF 7 RIGHTS IS WHOLLY UNDERMINED.  MASTRO PLASTICS
CORP. V. NLRB, U.S. 270, 280. 

JUDICIAL NULLIFICATION OF CONTRACTUAL CONCESSIONS, HOWEVER, IS
CONTRARY TO WHAT THE COURT HAS RECOGNIZED AS "(ONE OF (THE) FUNDAMENTAL
POLICIES" OF THE NATIONAL LABOR RELATIONS ACT--"FREEDOM OF CONTRACT." 
H. K. PORTER CO. V. NLRB, 397 U.S. 99, 108.  "THE THEORY OF THE ACT IS
THAT FREE OPPORTUNITY FOR NEGOTIATION WITH ACCREDITED REPRESENTATIVES
OF EMPLOYEES IS LIKELY TO PROMOTE INDUSTRIAL PEACE AND MAY BRING ABOUT
THE ADJUSTMENTS AND AGREEMENTS WHICH THE ACT IN ITSELF DOES NOT ATTEMPT
TO COMPEL."  NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 45. 
CONTRACTUAL WAIVERS AGAINST A UNION'S OWN INTERESTS ARE SELDOM IF EVER
GRATUITOUSLY GRANTED IN THE GIVE AND TAKE OF THE COLLECTIVE-BARGAINING
PROCESS.  IN RETURN, THE UNION TYPICALLY EXACTS SOME FORM OF QUID PRO
QUO FROM THE MANAGEMENT NEGOTIATORS.  SINCE IT IS USUALLY IMPOSSIBLE TO
IDENTIFY THE CONSIDERATION GIVEN IN RETURN FOR A PARTICULAR UNION
CONCESSION, THE RESULT OF NULLIFYING A UNION'S AGREEMENT TO WAIVE THE 7
RIGHTS OF ITS SUPPORTERS WILL NECESSARILY BE TO DEPRIVE MANAGEMENT OF
THE BENEFIT OF ITS BARGAIN AND TO LEAVE THE UNION WITH A WINDFALL. 
THIS SORT OF INVALIDATION OF BARGAINED-FOR CONCESSIONS DOES NOT PROMOTE
STABILITY IN THE COLLECTIVE-BARGAINING PROCESS AND MUST CERTAINLY HAVE
A NEGATIVE EFFECT ON LABOR-MANAGEMENT RELATIONS.  FOR THIS REASON, THE
BOARD AND THE COURTS SHOULD NOT RELIEVE THE PARTIES OF THE PROMISES
THEY HAVE MADE UNLESS A CONTRACTUAL PROVISION VIOLATES A SPECIFIC

IN GALE PRODUCTS THE BOARD CORRECTLY DETERMINED THAT THE UNION COULD
NOT WAIVE THE DISTRIBUTION RIGHTS OF EMPLOYEES WHO SOUGHT TO DISTRIBUTE
LITERATURE ADVOCATING THE OUSTER OF THE INCUMBENT UNION; FOR THE CLEAR
POLICY OF FEDERAL LABOR LAW FORBIDS EITHER THE UNION OR THE EMPLOYER TO
FREEZE OUT ANOTHER UNION OR TO ENTRENCH THE INCUMBENT UNION BY
INFRINGING THE 7 RIGHTS OF DISSIDENT EMPLOYEES.  I SEE NO
JUSTIFICATION, HOWEVER, FOR THE BOARD'S EXTENSION OF THE GALE PRODUCTS
RULE TO PREVENT THE UNION'S WAIVER OF THE DISTRIBUTION RIGHTS OF ITS
SUPPORTERS IN THE BARGAINING UNIT.  /1/

THE CONSIDERATIONS THAT DISTINGUISH THE WAIVER OF SUPPORTERS'
DISTRIBUTION RIGHTS FROM THE WAIVER OF OPPONENTS'  DISTRIBUTION RIGHTS
WERE COGENTLY STATED BY THE FIFTH CIRCUIT IN NLRB V. MID-STATES METAL
PRODUCTS, 403 F.2D 702, 705: 

     " WHERE UNION AND EMPLOYEE INTERESTS ARE ONE IT CAN FAIRLY BE

  ASSUMED THAT EMPLOYEE RIGHTS WILL NOT BE SURRENDERED EXCEPT IN

RETURN FOR BARGAINED-FOR CONCESSIONS FROM THE EMPLOYER OF BENEFIT

  TO EMPLOYEES.  BUT THE RATIONALE OF ALLOWING WAIVER BY THE UNION

  DISAPPEARS WHERE THE SUBJECT MATTER WAIVED GOES TO THE HEART OF

  THE RIGHT OF EMPLOYEES TO CHANGE THEIR BARGAINING REPRESENTATIVE,

  OR TO HAVE NO BARGAINING REPRESENTATIVE, A RIGHT WITH RESPECT TO

  WHICH THE INTERESTS OF THE UNION AND EMPLOYEES MAY BE WHOLLY

  ADVERSE.  SOLICITATION AND DISTRIBUTION OF LITERATURE ON PLANT

  PREMISES ARE IMPORTANT ELEMENTS IN GIVING FULL PLAY TO THE RIGHT

  OF EMPLOYEES TO SEEK DISPLACEMENT OF AN INCUMBENT UNION.  WE

  CANNOT PRESUME THAT THE UNION, IN AGREEING TO BAR SUCH

  ACTIVITIES, DOES SO AS A BARGAIN FOR SECURING OTHER BENEFITS FOR

  THE EMPLOYEES AND NOT FROM THE SELF-INTEREST IT HAS IN

  PERPETUATING ITSELF AS BARGAINING REPRESENTATIVE. 

      " A WAIVER OF THE RIGHT TO SOLICIT AND DISTRIBUTE LITERATURE

  DOES NOT HAMPER THE UNION AS IT DOES THE UNION'S ADVERSARIES. 

  THE UNION CAN COMMUNICATE THROUGH THE BULLETIN BOARD, UNION

  MEETINGS AND THE FORCE OF STATUS AS BARGAINING REPRESENTATIVE,

  ENJOYING AN ADVANTAGE IN PRESERVING THE STATUS QUO.  ITS

  ADVERSARIES WILL NOT HAVE EQUAL ACCESS TO AND COMMUNICATION WITH

  THEIR FELLOW EMPLOYEES." 

IN NULLIFYING THE UNION'S PROMISE TO WAIVE THE LITERATURE
DISTRIBUTION RIGHTS OF ITS OWN SUPPORTERS, THE BOARD AND TODAY THE
COURT ARE UPSETTING THE DELICATE BALANCE ACHIEVED IN THE GIVE AND TAKE
OF NEGOTIATIONS AND PRESENTING THE UNION WITH AN UNDESERVED WINDFALL. 
THIS NULLIFICATION, AT THE BEHEST OF THE UNION THAT MADE THE PROMISE,
CAN ONLY CONTRIBUTE TO FUTRE INSTABILITY IN COLLECTIVE BARGAINING
BETWEEN LABOR AND MANAGEMENT. 

ONE CAN, OF COURSE, ENVISION EXCEPTIONAL CIRCUMSTANCES IN WHICH THE
UNION SUPPORTERS' ACCESS TO AND COMMUNICATION WITH THEIR FELLOW
EMPLOYEES IN THE BARGAINING UNIT MIGHT BE SO RESTRICTED THAT IT WOULD
BE EXTREMELY DIFFICULT, IN THE ABSENCE OF THEIR 7 DISTRIBUTION RIGHTS,
FOR THEM TO RESPOND TO THE ARGUMENTS MADE IN LITERATURE DISTRIBUTED BY
THEIR OPPONENTS.  IN SUCH A CASE, THE WAIVER OF THE SUPPORTERS' RIGHTS
MIGHT RESULT IN SUCH A DISTORTION OF THE LABOR POLITICAL PROCESS AS TO
PREVENT THE BALANCED PRESENTATION OF THE ISSUES TO THE EMPLOYEES THAT
NATIONAL LABOR POLICY SEEKS TO PROMOTE.  THIS CONCERN WAS APTLY
EXPRESSED BY THE BOARD IN ITS GENERAL MOTORS DECISION, 158 N.L.R.B., AT
1726: 

"(WE RECOGNIZE) THE SALUTARY PURPOSE OF REFUSING TO DISTURB
CONCESSIONS YIELDED BY EITHER PARTY THROUGH THE PROCESSES OF COLLECTIVE
BARGAINING EVEN WHERE SUCH A CONCESSION MAY INFRINGE UPON RIGHTS
GUARANTEED EMPLOYEES UNDER SECTION 7 OF THE ACT... (THE VALIDITY OF A
PARTICULAR CONCESSION OR WAIVER MUST DEPEND UPON WHETHER THE
INTERFERENCE WITH THE EMPLOYEES' STATUTORY RIGHTS IS SO GREAT AS TO
OVERRIDE ANY LEGITIMATE REASONS FOR UPHOLDING THE WAIVER, OR WOULD
UNDULY HAMPER THE EMPLOYEES IN EXERCISING THEIR BASIC RIGHTS UNDER THE
ACT."  (INTERNAL QUOTATIONS OMITTED.)  THUS, IF IN THE ABSENCE OF 7
DISTRIBUTION RIGHTS THE UNION SUPPORTERS WOULD BE INCAPABLE OF
ADEQUATELY PRESENTING THEIR POSITION TO THE EMPLOYEES IN A
REPRESENTATION CONTROVERSY, A STRONG ARGUMENT COULD BE MADE THAT THE
UNION'S AGREEMENT WAS CONTRARY TO A BASIC POLICY OF THE NATIONAL LABOR
RELATIONS ACT AND THAT, DESPITE THE NEGATIVE EFFECT ON THE BARGAINING
PROCESS, THE UNION'S PROMISE COULD NOT BE EFFECTIVE. 

IN THIS CASE, HOWEVER, THERE IS NO SUGGESTION OF SUCH EXCEPTIONAL
CIRCUMSTANCES THAT WOULD INCAPACITATE THE UNION'S SUPPORTERS IN ANY
DISPUTE REGARDING THE UNION'S CONTINUED STATUS AS THE COLLECTIVE
BARGAINING AGENT.  IT IS CLEAR FROM THE RECORD THAT THE UNION
SUPPORTERS HAVE ACCESS TO THE COMPANY BULLETIN BOARDS; THAT THEY MAY
STILL SOLICIT SUPPORT, ALTHOUGH NOT DISTRIBUTE LITERATURE, IN NONWORK
AREAS DURING NONWORK TIME; AND THAT THEY MAY DISTRIBUTE LITERATURE, AND
HAVE DONE SO IN THE PAST, AT THE GATES OF THE PLANT.  THUS, IT IS
EVIDENT THAT THE UNION SUPPORTERS WOULD NOT BE DISABLED BY THIS
PROVISION OF THE COLLECTIVE-BARGAINING AGREEMENT FROM MAINTAINING THEIR
END OF THE POLITICAL DISCOURSE THAT NATIONAL LABOR POLICY SEEKS TO
FOSTER. 

I CANNOT AGREE TO A GENERAL RULE THAT ALLOWS THE BOARD TO NULLIFY
THE UNION'S PROMISE, CONTAINED IN A COLLECTIVE-BARGAINING AGREEMENT,
THAT ITS SUPPORTERS WILL NOT DISTRIBUTE LITERATURE IN THE PLANT.  FOR
THIS REASON, I DISSENT FROM THE JUDGMENT AND THE OPINION OF THE COURT
INSOFAR AS THEY HOLD THAT THE UNION COULD NOT VALIDLY WAIVE THE
DISTRIBUTION RIGHTS OF THE EMPLOYEES WHO SUPPORT IT.

/1/  THE BOARD HELD, AND I PRESUME THE COURT AGREES, THAT THE UNION
COULD WAIVE ANY RIGHT THAT THE EMPLOYEES MIGHT HAVE TO DISTRIBUTE UNION
INSTITUTIONAL LITERATURE.  THE ONLY QUESTION IN THIS CASE RELATES TO
THE WAIVABILITY OF RIGHTS TO DISTRIBUTE LITERATURE REGARDING THE
PROPOSED SELECTION, RETENTION, OR DISPLACEMENT OF THE COLLECTIVE
BARGAINING AGENT. 

PETER G. NASH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL BORK, JOHN S. IRVING, PATRICK HARDIN, AND NORTON
J. COME. 

GEORGE K. MC PHERSON, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT.  WINN NEWMAN AND RUTH WEYAND FILED A BRIEF FOR THE
INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO,
PETITIONER BELOW, URGING REVERSAL. 
..END :

















SPEIGHT V. SLATON, 415 U.S. 333 


       SPEIGHT, T/A HAREM BOOK STORE, ET AL. V. SLATON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA

NO. 72 - 1557.  ARGUED JANUARY 7 - 8, 1974--DECIDED FEBRUARY

           27, 1974; 356 F. SUPP. 1101, VACATED AND REMANDED. 


    FOLLOWING ORAL ARGUMENT IN THIS COURT OF THIS APPEAL FROM AN

  ORDER OF A THREE-JUDGE DISTRICT COURT DECLINING, ON THE BASIS OF

  YOUNGER V. HARRIS, 401 U.S. 37, TO INTERVENE IN A STATE

  PROCEEDING TO ENJOIN OPERATION OF APPELLANTS' BOOKSTORE ON THE

  GROUND THAT IT WAS VIOLATING A "PUBLIC NUISANCE" STATUTE BY

  SELLING OBSCENE MATERIALS, THE STATUTE WAS HELD UNCONSTITUTIONAL

  BY THE GEORGIA SUPREME COURT AS APPLIED IN A SIMILAR CASE,

  SANDERS V. STATE, 231 GA. 608, 203 S. E. 2D 153.  SINCE

  APPELLANTS MAY SECURE A DISMISSAL OF THE STATE PROCEEDING AGAINST

  THEM ON THE BASIS OF SANDERS, THUS PRECLUDING ANY IRREPARABLE

  INJURY, WITHOUT WHICH FEDERAL INJUNCTIVE RELIEF WOULD BE BARRED,

  THE JUDGMENT BELOW SHOULD BE RECONSIDERED IN THE LIGHT OF THE

  SANDERS DECISION. 

PER CURIAM. 

THIS IS AN APPEAL FROM A DECISION OF A THREE-JUDGE DISTRICT COURT
(356 F. SUPP. 1101) DECLINING TO INTERVENE IN A PENDING STATE CIVIL
PROCEEDING AND HOLDING THAT SUCH INTERVENTION WAS BARRED BY OUR
DECISION IN YOUNGER V. HARRIS, 401 U.S. 37.  THE STATE PROCEEDING,
BROUGHT AGAINST APPELLANTS BY THE SOLICITOR GENERAL OF FULTON COUNTY,
GEORGIA, SOUGHT AN INJUNCTION AGAINST THE OPERATION OF APPELLANT
SPEIGHT'S BOOKSTORE, AND CONFISCATION AND DESTRUCTION OF ALL
MERCHANDISE ON THE STORE'S PREMISES, ON THE GROUNDS THAT THE STORE WAS
BEING USED FOR THE "ADVERTISING, STORAGE, SALE, AND EXHIBITION FOR SALE
OF MATERIALS OBSCENE WITHIN THE MEANING OF SECTION 26 - 2101 THE BASIS
FOR THE STATE'S ACTION WAS 26 - 2103 OF THE CODE UNDER WHICH THE USE OF
ANY PREMISES FOR THE VIOLATION OF 26 - 2101 CONSTITUTES A "PUBLIC
NUISANCE," THEREBY TRIGGERING THE APPLICATION OF STATE STATUTORY
PROVISIONS FOR THE ABATEMENT OF PUBLIC NUISANCES, C. 72 - 2 OF THE CODE
OF GEORGIA.  THE CASE IS HERE ON APPEAL.  28 U.S.C. 1253, 2101 (B).  WE
NOTED PROBABLE JURISDICTION TO DECIDE WHETHER UNDER THESE CIRCUMSTANCES
FEDERAL INTERVENTION IN THE PENDING STATE PROCEEDINGS WAS BARRED BY OUR
HOLDING IN YOUNGER V. HARRIS, SUPRA. 

SINCE ORAL ARGUMENT OF THIS CASE THE GEORGIA SUPREME COURT HAS
STRUCK DOWN THE APPLICATION OF 26 - 2103 IN ANOTHER CASE INVOLVING
SIMILAR FACTS.  SANDERS V. STATE, 231 GA. 608, 203 S. E. 2D 153
(1974).  IN SANDERS THE STATE HAD BROUGHT AN ACTION TO ENJOIN THE
OPERATION OF A BOOKSTORE ON THE GROUND THAT CERTAIN PUBLICATIONS SOLD
BY THE STORE WERE OBSCENE UNDER 26 - 2101.  THE SUPREME COURT HELD THAT
THIS APPLICATION OF 26 - 2103 "REPRESENTS AN UNCONSTITUTIONAL PRIOR
RESTRAINT WHEN CONSTRUED AND APPLIED TO AUTHORIZE THE PERMANENT CLOSURE
OF THE BOOK STORE AS A PUBLIC NUISANCE UPON A FINDING THAT A SINGLE
PUBLICATION, OBSCENE UNDER THE STANDARDS OF CODE ANN. 26 - 2101 (B) WAS
SOLD ON ITS PREMISES."  ID., AT 611, 203 S. E. 2D, AT 155.  AS WE
UNDERSTAND THE GEORGIA COURT'S DECISION, THE OPERATION OF A BOOKSTORE
COULD NOT BE ENJOINED MERELY BECAUSE SOME OF ITS MERCHANDISE HAD BEEN
JUDICIALLY DETERMINED TO BE OBSCENE.  THE GEORGIA COURT CITED BOTH THE
FEDERAL AND GEORGIA CONSTITUTIONS IN ITS DECISION, ALTHOUGH IT WAS NOT
EXPLICIT AS TO WHETHER EACH PROVIDED, IN ITS VIEW, AN INDEPENDENT
GROUND FOR ITS HOLDING. 

IT WOULD APPEAR THAT THIS GEORGIA SUPREME COURT DECISION WOULD
PROBABLE FORECLOSE THE STATE ACTION AGAINST WHICH FEDERAL INJUNCTIVE
RELIEF WAS SOUGHT BY APPELLANTS IN THIS CASE.  IN THAT EVENT APPELLANTS
COULD OBTAIN FULL RELIEF IN THE STATE COURT PROCEEDING MERELY BY MOVING
TO DISMISS THE STATE ACTION, IN ACCORD WITH STATE PROCEDURAL RULES, IN
LIGHT OF SANDERS V. STATE.  IF THAT IS THE CASE, APPELLANTS COULD NOT
NOW MAKE ANY SHOWING OF IRREPARABLE INJURY BY REASON OF THE STATE COURT
PROCEEDING, AND SUCH A SHOWING IS OF COURSE REQUIRED BEFORE THE FEDERAL
COURT COULD GRANT THE EQUITABLE RELIEF, APART FROM ANY SPECIAL
CONSIDERATIONS INVOLVED IN YOUNGER V. HARRIS, 401 U.S. 37, 46. 

WE THEREFORE VACATE THE JUDGMENT BELOW AND REMAND TO THE DISTRICT
COURT FOR RECONSIDERATION IN LIGHT OF THE DECISION OF THE GEORGIA
SUPREME COURT IN SANDERS V. STATE, SUPRA.

              IT IS SO ORDERED. 

ROBERT EUGENE SMITH ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEF WAS D. FREEMAN HUTTON. 

THOMAS R. MORAN ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES. 
..END :


















MEMORIAL HOSPITAL V. MARICOPA COUNTY, 415 U.S. 250 


       APPEAL FROM THE SUPREME COURT OF ARIZONA

NO. 72 - 847.  ARGUED NOVEMBER 6, 1973--DECIDED FEBRUARY 26,

           1974; 108 ARIZ. 373, 498 P.2D 461, REVERSED AND

           REMANDED. 


    THIS IS AN APPEAL FROM A DECISION OF THE ARIZONA SUPREME COURT

  UPHOLDING THE CONSTITUTIONALITY OF AN ARIZONA STATUTE REQUIRING A

  YEAR'S RESIDENCE IN A COUNTY AS A CONDITION TO AN INDIGENT'S

  RECEIVING NONEMERGENCY HOSPITALIZATION OR MEDICAL CARE AT THE

  COUNTS'S EXPENSE.  HELD: THE DURATIONAL RESIDENCE REQUIREMENT,

  IN VIOLATION OF THE EQUAL PROTECTION CLAUSE, CREATES AN

  "INVIDIOUS CLASSIFICATION" THAT IMPINGES ON THE RIGHT OF

  INTERSTATE TRAVEL BY DENYING NEWCOMERS "BASIC NECESSITIES OF

  LIFE."  SHAPIRO V. THOMPSON, 394 U.S. 618.  PP. 253 - 270. 

     (A) SUCH A REQUIREMENT, SINCE IT OPERATES TO PENALIZE
INDIGENTS

FOR EXERCISING THEIR CONSTITUTIONAL RIGHT OF INTERSTATE

MIGRATION, MUST BE JUSTIFIED BY A COMPELLING STATE INTEREST. 

  SHAPIRO V. THOMPSON, SUPRA; DUNN V. BLUMSTEIN, 405 U.S. 330.  PP.

  253 - 262. 

     (B) THE STATE HAS NOT SHWON THAT THE DURATIONAL RESIDENCE

  REQUIREMENT IS "LEGITIMATELY DEFENSIBLE" IN THAT IT FURTHERS A

  COMPELLING STATE INTEREST, AND NONE OF THE PURPOSES ASSERTED AS

  JUSTIFICATION FOR THE REQUIREMENT--FISCAL SAVINGS, INHIBITING

MIGRATION OF INDIGENTS GENERALLY, DETERRING INDIGENTS FROM TAKING

  UP RESIDENCE IN THE COUNTY SOLELY TO UTILIZE THE MEDICAL

  FACILITIES, PROTECTION OF LONG-TIME RESIDENTS WHO HAVE

  CONTRIBUTED TO THE COMMUNITY PARTICULARLY BY PAYING TAXES,

  MAINTAINING PUBLIC SUPPORT OF THE COUNTY HOSPITAL, ADMINISTRATIVE

  CONVENIENCE IN DETERMINING BONA FIDE RESIDENCE, PREVENTION OF

  FRAUD, AND BUDGET PREDICTABILITY--STAISFIES THE STATE'S BURDEN OF

  JUSTIFICATION AND INSURES THAT THE STATE, IN PURSUING ITS

  ASSERTED OBJECTIVES, HAS CHOSEN MEANS THAT DO NOT UNNECESSARILY

  IMPINGE ON CONSTITUTIONALLY PROTECTED INTERESTS.  PP. 262 - 269. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

BRENNAN, STEWART, WHITE, AND POWELL, JJ., JOINED.  BURGER, C.J.,

  AND BLACKMUN, J., CONCURRED IN THE RESULT.  DOUGLAS, J., FILED A

  SEPARATE OPINION, POST, P. 270. 

REHNQUIST, J., FILED A DISSENTING OPINION, POST, P. 277. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN APPEAL FROM A DECISION OF THE ARIZONA SUPREME
COURT UPHOLDING AN ARIZONA STATUTE REQUIRING A YEAR'S RESIDENCE IN A
COUNTY AS A CONDITION TO RECEIVING NONEMERGENCY HOSPITALIZATION OR
MEDICAL CARE AT THE COUNTY'S EXPENSE.  THE CONSTITUTIONAL QUESTION
PRESENTED IS WHETHER THIS DURATIONAL RESIDENCE REQUIREMENT IS REPUGNANT
TO THE EQUAL PROTECITON CLAUSE AS APPLIED BY THIS COURT IN SHAPIRO V.
THOMPSON, 394 U.S. 618 (1969). 

        I 

APPELLANT HENRY EVARO IS AN INDIGENT SUFFERING FROM A CHRONIC
ASTHMATIC AND BRONCHIAL ILLNESS.  IN EARLY JUNE 1971, MR. EVARO MOVED
FROM NEW MEXICO TO PHOENIX IN MARICOPA COUNTY, ARIZONA.  ON JULY 8,
1971, EVARO HAD A SEVERE RESPIRATORY ATTACK AND WAS SENT BY HIS
ATTENDING PHYSICIAN TO APPELLANT MEMORIAL HOSPITAL, A NONPROFIT PRIVATE
COMMUNITY HOSPITAL.  PURSUANT TO THE ARIZONA STATUTE GOVERNING MEDICAL
CARE FOR INDIGENTS, MEMORIAL NOTIFIED THE MARICOPA COUNTY BOARD OF
SUPERVISORS THAT IT HAD IN ITS CHARGE AN INDIGENT WHO MIGHT QUALIFY FOR
COUNTY CARE AND REQUESTED THAT EVARO BE TRANSFERRED TO THE COUNTY'S
PUBLIC HOSPITAL FACILITY.  IN ACCORDANCE WITH THE APPROVED PROCEDURES,
MEMORIAL ALSO CLAIMED REIMBURSEMENT FROM THE COUNTY IN THE AMOUNT OF
$1,202.60, FOR THE CARE AND SERVICES IT HAD PROVIDED EVARO. 

UNDER ARIZONA LAW, THE INDIVIDUAL COUNTY GOVERNMENTS ARE CHARGED
WITH THE MANDATORY DUTY OF PROVIDING NECESSARY HOSPITAL AND MEDICAL
CARE FOR THEIR INDIGENT SICK.  /1/  BUT THE STATUTE REQUIRES AN
INDIGENT TO HAVE BEEN A RESIDENT OF THE COUNTY FOR THE PRECEDING 12
MONTHS IN ORDER TO BE ELIBIBLE FOR FREE NONEMERGENCY MEDICAL CARE.  /2/
MARICOPA COUNTY REFUSED TO ADMIT EVARO TO ITS PUBLIC HOSPITAL OR TO
REIMBURSE MEMORIAL SOLELY BECASUE EVARO HAD NOT BEEN A RESIDENT OF THE
COUNTY FOR THE PRECEDING YEAR.  APPELLEES DO NOT DISPUTE THAT EVARO IS
AN INDIGENT OR THAT HE IS A BONA FIDE RESIDENT OF MARICOPA COUNTY. 
/3/ 

THIS ACTION WAS INSTITUTED TO DETERMINE WHETHER APPELLEE MARICOPA
COUNTY WAS OBLIGATED TO PROVIDE MEDICAL CARE FOR EVARO OR WAS LIABLE TO
MEMORIAL FOR THE COSTS IT INCURRED BECASUE OF THE COUNTY'S REFUSAL TO
DO SO.  THIS CONTROVERSY NECESSARILY REQUIRES AN ADJUDICATION OF THE
CONSTITUTIONALITY OF THE ARIZONA DURATIONAL RESIDENCE REQUIREMENT FOR
PROVIDING FREE MEDICAL CARE TO INDIGENTS. 

THE TRIAL COURT HELD THE RESIDENCE REQUIREMENT UNCONSTITUTIONAL AS A
VIOLATION OF THE EQUAL PROTECTION CLAUSE.  IN A PRIOR THREE-JUDGE
FEDERAL COURT SUIT AGAINST PINAL COUNTY, ARIZONA, THE DISTRICT COURT
HAD ALSO DECLARED THE RESIDENCE REQUIREMENT UNCONSTITUTIONAL AND HAD
ENJOINED ITS FUTURE APPLICATION IN PINAL COUNTY.  VALENCIANO V.
BATEMAN, 323 F.SUPP.  600 (ARIZ. 1971).  /4/  NONETHELESS, THE ARIZONA
SUPREME COURT UPHELD THE CHALLENGED REQUIREMENT.  TO RESOLVE THIS
CONFLICT BETWEEN A FEDERAL COURT AND THE HIGHEST COURT OF THE STATE, WE
NOTED PROBABLE JURISDICTION, 410 U.S. 981 (1973), AND WE REVERSE THE
JUDGMENT OF THE ARIZONA SUPREME COURT. 

        II 

IN DETERMINING WHETHER THE CHALLENGED DURATIONAL RESIDENCE PROVISION
VIOLATES THE EQUAL PROTECTION CLAUSE, WE MUST FIRST DETERMINE WHAT
BURDEN OF JUSTIFICATION THE CLASSIFICATION CREATED THEREBY MUST MEET,
BY LOOKING TO THE NATURE OF THE CLASSIFICATION AND THE INDIVIDUAL
INTERESTS AFFECTED.  /5/  THE COURT CONSIDERED SIMILAR DURATIONAL
RESIDENCE REQUIREMENTS FOR WELFARE ASSISTANCE IN SHAPIRO V. THOMPSON,
394 U.S. 618 (1969).  THE COURT OBSERVED THAT THOSE REQUIREMENTS
CREATED TWO CLASSES OF NEEDY RESIDENTS "INDSTINGUISHABLE FROM EACH
OTHER EXCEPT THAT ONE IS COMPOSED OF RESIDENTS WHO HAVE RESIDED A YEAR
OR MORE, AND THE SECOND OF RESIDENTS WHO HAVE RESIDED LESS THAN A YEAR,
IN THE JURISDICTION.  ON THE BASIS OF THIS SOLE DIFFERENCE THE FIRST
CLASS (WAS) GRANTED AND SECOND CLASS (WAS) DENIED WELFARE AID UPON
WHICH MAY DEPEND THE ABILITY . . . TO OBTAIN THE VERY MEANS TO SUBSIST-
FOOD, SHELTER, AND OTHER NECESSITIES OF LIFE."  ID., AT 627.  THE COURT
FOUND THAT BECAUSE THIS CLASSIFICATION IMPINGED ON THE CONSTITUTIONALLY
GUARANTEED RIGHT OF INTERSTATE TRAVEL, IT WAS TO BE JUDGED BY THE
STANDARD OF WHETHER IT PROMOTED A COMPELLING STATE INTEREST.  /6/
FINDING SUCH AN INTEREST WANTING, THE COURT HELD THE CHALLENGED
RESIDENCE REQUIREMENTS UNCONSTITUTIONAL. 

APPELLEES ARGUE THAT THE RESIDENCE REQUIREMENT BEFORE US IS
DISTINGUISHABLE FROM THOSE IN SHAPIRO, WHILE APPELLANTS URGE THAT
SHAPIRO IS CONTROLLING.  WE AGREE WITH APPELLANTS THAT ARIZONA'S
DURATIONAL RESIDENCE REQUIREMENT FOR FREE MEDICAL CARE MUST BE
JUSTIFIED BY A COMPELLING STATE INTEREST AND THAT, SUCH INTERESTS BEING
LACKING, THE REQUIREMENT IS UNCONSTITUTIONAL. 

        III 

THE RIGHT OF INTERSTATE TRAVEL HAS REPEATEDLY BEEN RECOGNIZED AS A
BASIC CONSTITUTIONAL FREEDOM.  /7/  WHATEVER ITS ULTIMATE SCOPE,
HOWEVER, THE RIGHT TO TRAVEL WAS INVOLVED IN ONLY A LIMITED SENSE IN
SHAPIRO.  THE COURT WAS THERE CONCERNED ONLY WITH THE RIGHT TO MIGRATE,
"WITH INTENT TO SETTLE AND ABIDE"  /8/  OR, AS THE COURT PUT IT, "TO
MIGRATE, RESETTLE, FIND A NEW JOB, AND START A NEW LIFE."  394 U.S., AT
629.  EVAN A BONA FIDE RESIDENCE REQUIREMENT WOULD BURDEN THE RIGHT TO
TRAVEL, IF TRAVEL MEANT MERELY MOVEMENT.  BUT, IN SHAPIRO, THE COURT
EXPLAINED THAT "(THE RESIDENCE REQUIREMENT AND THE ONE-YEAR WAITING
PERIOD REQUIREMENT ARE DISTINCT AND INDEPENDENT PREREQUISITES" FOR
ASSISTANCE AND ONLY THE LATTER WAS HELD TO BE UNCONSTITUTIONAL.  ID.,
AT 636.  LATER, IN INVALIDATING A DURATIONAL RESIDENCE REQUIREMENT FOR
VOTER REGISTRATION ON THE BASIS OF SHAPIRO, WE CAUTIONED THAT OUR
DECISION WAS NOT INTENDED TO "CAST DOUBT ON THE VALIDITY OF
APPROPRIATELY DEFINED AND UNIFORMLY APPLIED BONA FIDE RESIDENCE
REQUIREMENTS."  DUNN V. BLUMSTEIN, 405 U.S. 330, 342 N. 13 (1972). 

        IV 

THE APPELLEES ARGUE THAT THE INSTANT COUNTY RESIDENCE REQUIREMENT IS
DISTINGUISHABLE FROM THE STATE RESIDENCE REQUIREMENTS IN SHAPIRO, IN
THAT THE FORMER PENALIZES, NOT INTERSTATE, BUT RATHER INTRASTATE,
TRAVEL.  EVEN WERE WE TO DRAW A CONSTITUTIONAL DISTINCTION BETWEEN
INTERSTATE AND INTRASTATE TRAVEL, A QUESTION WE DO NOT NOW CONSIDER,
SUCH A DISTINCTION WOULD NOT SUPPORT THE JUDGMENT OF THE ARIZONA COURT
IN THE CASE BEFORE US.  APPELLANT EVARO HAS BEEN EFFECTIVELY PENALIZED
FOR HIS INTERSTATE MIGRATION, ALTHOUGH THIS WAS ACCOMPLISHED UNDER THE
GUISE OF A COUNTY RESIDENCE REQUIREMENT.  WHAT WOULD BE
UNCONSTITUTIONAL IF DONE DIRECTLY BY THE STATE CAN NO MORE READILY BE
ACCOMPLISHED BY A COUNTY AT THE STATE'S DIRECTION.  THE ARIZONA SUPREME
COURT COULD HAVE CONSTRUED THE WAITING-PERIOD REQUIREMENTS TO APPLY TO
INTRASTATE BUT NOT INTERSTATE MIGRANTS; /9/  BUT IT DID NOT DO SO, AND
"IT IS NOT OUR FUNCTION TO CONSTRUE A STATE STATUTE CONTRARY TO THE
CONSTRUCTION GIVEN IT BY THE HIGHEST COURT OF A STATE."  O'BRIEN V.
SKINNER, 414 U.S. 524, 531 (1974). 

        V 

ALTHOUGH ANY DURATIONAL RESIDENCE REQUIREMENT IMPINGES TO SOME
EXTENT ON THE RIGHT TO TRAVEL, THE COURT IN SHAPIRO DID NOT DECLARE
SUCH A REQUIREMENT TO BE PER SE UNCONSTITUTIONAL.  THE COURT'S HOLDING
WAS CONDITIONED, 394 U.S., AT 638 N. 21, BY THE CAVEAT THAT SOME
"WAITING-PERIOD OR RESIDENCE REQUIREMENTS . . . MAY NOT BE PENALTIES
UPON THE EXERCISE OF THE CONSTITUTIONAL RIGHT OF INTERSTATE TRAVEL." 
THE AMOUNT OF IMPACT REQUIRED TO GIVE RISE TO THE COMMPELLING-STATE
INTEREST TEST WAS NOT MADE CLEAR.  /10/  THE COURT SPOKE OF THE
REQUISITE IMPACT IN TWO WAYS.  FIRST, WE CONSIDERED WHETHER THE WAITING
PERIOD WOULD DETER MIGRATION: 

"AN INDIGENT WHO DESIRES TO MIGRATE . . . WILL DOUBTLESS HESITATE IF
HE KNOWS THAT HE MUST RISK MAKING THE MOVE WITHOUT THE POSSIBILITY OF
FALLING BACK ON STATE WELFARE ASSISTANCE DURING HIS FIRST YEAR OF
RESIDENCE, WHEN HIS NEED MAY BE MOST ACUTE."  ID., AT 629.  SECOND, THE
COURT CONSIDERED THE EXTENT TO WHICH THE RESIDENCE REQUIREMENT SERVED
TO PENALIZE THE EXERCISE OF THE RIGHT TO TRAVEL. 

THE APPELLEES HERE ARGUE THAT THE DENIAL OF NON-EMERGENCY MEDICAL
CARE, UNLIKE THE DENIAL OF WELFARE, IS NOT APT TO DETER MIGRATION; BUT
IT IS FAR FROM CLEAR THAT THE CHALLENGED STATUTE IS UNLIKELY TO HAVE
ANY DETERRENT EFFECT.  A PERSON AFFLICTED WITH A SERIOUS RESPIRATORY
AILMENT, PARTICULARLY AN INDIGENT WHOSE EFFORTS TO PROVIDE A LIVING FOR
HIS FAMILY HAVE BEEN INHIBITED BY HIS INCAPACITATING ILLNESS, MIGHT
WELL THINK OF MIGRATING TO THE CLEAN DRY AIR OF ARIZONA, WHERE RELIEF
FROM HIS DISEASE COULD ALSO BRING RELIEF FROM UNEMPLOYMENT AND
POVERTY.  BUT HE MAY HESITATE IF HE KNOWS THAT HE MUST MAKE THE MOVE
WITHOUT THE POSSIBILITY OF FALLING BACK ON THE STATE FOR MEDICAL CARE
SHOULD HIS CONDITION STILL PLAGUE HIM OR GROW MORE SEVERE DURING HIS
FIRST YEAR OF RESIDENCE. 

IT IS TRUE, AS APPELLEES ARGUE, THAT THERE IS NO EVIDENCE IN THE
RECORD BEFORE US THAT ANYONE WAS ACTUALLY DETERRED FROM TRAVELING BY
THE CHALLENGED RESTRICTION.  BUT NEITHER DID THE MAJORITY IN SHAPIRO
FIND ANY REASON "TO DISPUTE THE 'EVIDENCE THAT FEW WELFARE RECIPIENTS
HAVE IN FACT BEEN DETERRED (FROM MOVING) BY RESIDENCE REQUIREMENTS.' 
INDEED, NONE OF THE LITIGANTS HAD THEMSELVES BEEN DETERRED."  DUNN, 405
U.S. AT 340 (CITATIONS OMITTED).  AN ATTEMPT TO DISTINGUISH SHAPIRO BY
URGING THAT A DURATIONAL RESIDENCE REQUIREMENT FOR VOTER REGISTRATION
DID NOT DETER TRAVEL, WAS FOUND TO BE A "FUNDAMENTAL MISUNDERSTANDING
OF THE LAW" IN DUNN, SUPRA, AT 339 - 340.  /11/ 

"SHAPIRO DID NOT REST UPON A FINDING THAT DENIAL OF WELFARE ACTUALLY
DETERRED TRAVEL.  NOR HAVE OTHER 'RIGHT TO TRAVEL' CASES IN THIS COURT
ALWAYS RELIED ON THE PRESENCE OF ACTUAL DETERRENCE.  IN SHAPIRO WE
EXPLICITLY STATED THAT THE COMPELLING-STATE-INTEREST TEST WOULD BE
TRIGGERED BY 'ANY CLASSIFICATION WHICH SERVES TO PENALIZE THE EXERCISE
OF THAT RIGHT (TO TRAVEL) . . .'"  (EMPHASIS IN ORIGINAL; FOOTNOTE
OMITTED.) 

THUS, SHAPIRO AND DUNN STAND FOR THE PROPOSITION THAT A
CLASSIFICATION WHICH "OPERATES TO PENALIZE THOSE PERSONS . . . WHO HAVE
EXERCISED THEIR CONSTITUTIONAL RIGHT OF INTERSTATE MIGRATION," MUST BE
JUSTIFIED BY A COMPELLING STATE INTEREST.  OREGON V. MITCHELL, 400 U.S.
112, 238 (1970) (SEPARATE OPINION OF BRENNAN, WHITE, AND MARSHALL,
JJ.)  (EMPHASIS ADDED).  ALTHOUGH ANY DURATIONAL RESIDENCE REQUIREMENT
IMPOSES A POTENTIAL COST ON MIGRATION, THE COURT, IN SHAPIRO, CAUTIONED
THAT SOME "WAITING-PERIODS) . . . MAY NOT BE PENALTIES."  394 U.S. AT
638 N. 21.  IN DUNN V. BLUMSTEIN, SUPRA, THE COURT FOUND THAT THE
DENIAL OF THE FRANCHISE, "A FUNDAMENTAL POLITICAL RIGHT," REYNOLDS V.
SIMS.  377 U.S. 533, 562 (1964), WAS A PENALTY REQUIRING APPLICATION OF
THE COMPELLING-STATE-INTEREST TEST.  IN SHAPIRO, THE COURT FOUND DENIAL
OF THE BASIC "NECCESSITIES OF LIFE" TO BE A PENALTY.  NONETHELESS, THE
COURT HAS DECLINED TO STRIKE DOWN STATE STATUTES REQUIRING ONE YEAR OF
RESIDENCE AS A CONDITION TO LOWER TUITION AT STATE INSTITUTIONS OF
HIGHER EDUCATION.  /12/ 

WHATEVER THE ULTIMATE PARAMETERS OF THE SHAPIRO PENALTY ANALYSIS,
/13/  IT IS AT LEAST CLEAR THAT MEDICAL CARE IS AS MUCH "A BASIC
NECESSITY OF LIFE" TO AN INDIGENT AS WELFARE ASSISTANCE.  /14/  AND,
GOVERNMENTAL PRIVILEGES OR BENEFITS NECESSARY TO BASIC SUSTENANCE HAVE
OFTEN BEEN VIEWED AS BEING OF GREATER CONSITUTIONAL SIGNIFICANCE THAN
LESS ESSENTIAL FORMS OF GOVERNMENTAL ENTITLEMENTS.  SEE, E.G., SHAPIRO,
SUPRA; GOLDBERG V. KELLY, 397 U.S. 254, 264 (1970); SNIADACH V. FAMILY
FINANCE CORP., 395 U.S. 337, 340 - 342 (1969).  IT WOULD BE ODD,
INDEED, TO FIND THAT THE STATE OF ARIZONA WAS REQUIRED TO AFFORD EVARO
WELFARE ASSISTANCE TO KEEP HIM FROM THE DISCOMFORT OF INADEQUATE
HOUSING OR THE PANGS OF HUNGER BUT COULD DENY HIM THE MEDICAL CARE
NECESSARY TO RELIEVE HIM FROM THE WHEEZING AND GASPING FOR BREATH THAT
ATTEND HIS ILLNESS.  /15/ 

NOR DOES THE FACT THAT THE DURATIONAL RESIDENCE REQUIREMENT IS
INAPPLICABLE TO THE PROVISION OF EMERGENCY MEDICAL CARE SAVE THE
CHALLENGED PROVISION FROM CONSTITUTIONAL DOUBT.  AS THE ARIZONA SUPREME
COURT OBSERVED, APPELLANT "EVARO WAS AN INDIGENT PERSON WHO REQJIRED
CONTINUED MEDICAL CARE FOR THE PRESERVATION OF HIS HEALTH AND WELL
BEING . . . ," EVEN IF HE DID NOT REQUIRE IMMEDIATE EMERGENCY CARE. 
/16/  THE STATE COULD NOT DENY EVARO CARE JUST BECAUSE, ALTHOUGH
GASPING FOR BREATH, HE WAS NOT IN IMMEDIATE DANGER OF STOPPING
BREATHING ALTOGETHER.  TO ALLOW A SERIOUS ILLNESS TO GO UNTREATED UNTIL
IT REQUIRES EMERGENCY HOSPITALIZATION IS TO SUBJECT THE SUFFERER TO THE
DANGER OF A SUBSTANTIAL AND IRREVOCABLE DETERIORIATION IN HIS HEALTH. 
CANCER, HEART DISEASE, OR RESPIRATORY ILLNESS, IF UNTREATED FOR A YEAR,
MAY BECOME ALL BUT IRREVERSIBLE PATHS TO PAIN, DISABILITY, AND EVEN
LOSS OF LIFE.  THE DENIAL OF MEDICAL CARE IS ALL THE MORE CRUEL IN THIS
CONTEXT, FALLING AS IT DOES ON INDIGENTS WHO ARE OFTEN WITHOUT THE
MEANS TO OBTAIN ALTERNATIVE TREATMENT.  /17/ 

FINALLY, APPELLEES SEEK TO DISTINGUISH SHAPIRO AS INVOLVING A
PARTIALLY FEDERALLY FUNDED PROGRAM.  MARICOPA COUNTY HAS RECEIVED
FEDERAL FUNDING FOR ITS PUBLIC HOSPITAL /18/  BUT, MORE IMPORTANTLY,
THIS COURT HAS HELD THAT WHETHER OR NOT A WELFARE PROGRAM IS FEDERALLY
FUNDED IS IRRELEVANT TO THE APPLICABILITY OF THE SHAPIRO ANALYSIS. 
PEASE V. HANSEN, 404 U.S. 70 (1971); GRAHAN V. RICHARDSON, 403 U.S. 365
(1971).     NOT UNLIKE THE ADMONITION OF THE BIBLE THAT, "YE SHALL HAVE
ONE MANNER OF LAW, AS WELL FOR THE STRANGER, AS FOR ONE OF YOUR OWN
COUNTRY,"  LEVITICUS 24:22 (KING JAMES VERSION), THE RIGHT OF
INTERSTATE TRAVEL MUST BE SEEN AS INSURING NEW RESIDENTS THE SAME RIGHT
TO VITAL GOVERNMENT BENEFITS AND PRIVILEGES IN THE STATES TO WHICH THEY
MIGRATE AS ARE ENJOYED BY OTHER RESIDENTS.  THE STATE OF ARIZONA'S
DURATIONAL RESIDENCE REQUIREMENT FOR FREE MEDICAL CARE PENALIZES
INDIGENTS FOR EXERCISING THEIR RIGHT TO MIGRATE TO AND SETTLE IN THAT
STATE.  /19/  ACCORDINGLY, THE CLASSIFICATION CREATED BY THE RESIDENCE
REQUIREMENT, "UNLESS SHOWN TO BE NECESSARY TO PROMOTE A COMPELLING
GOVERNMENTAL INTEREST, IS UNCONSTITUTIONAL."  SHAPIRO, 394 U.S., AT
634.  (EMPHASIS IN ORIGINAL.) 

        VI 

WE TURN NOW TO THE QUESTION OF WHETHER THE STATE HAS SHOWN THAT ITS
DURATIONAL RESIDENCE REQUIREMENT IS "LEGITIMATELY DEFENSIBLE,"  /20/
IN THAT IT FURTHERS A COMPELLING STATE INTEREST.  /21/  A NUMBER OF
PURPOSES ARE ASSERTED TO BE SERVED BY THE REQUIREMENT AND WE MUST
DETERMINE WHETHER THESE SATISFY THE APPELLEES' HEAVY BURDEN OF
JUSTIFICATION, AND INSURE THAT THE STATE, IN PURSUING ITS ASSERTED
OBJECTIVES, HAS CHOSEN MEANS THAT DO NOT UNNECESSARILY BURDEN
CONSTITUTIONALLY PROTECTED INTERESTS.  NAACP V. BUTTON, 371 U.S. 415,
438 (1963). 

        A 

THE ARIZONA SUPREME COURT OBSERVED THAT: 

"ABSENT A RESIDENCE REQUIREMENT, ANY INDIGENT SICK PERSON . . .
COULD SEEK ADMISSION TO (MARICOPA COUNTY'S) HOSPITAL, THE FACILITIES
BEING THE NEWEST AND MOST MODERN IN THE STATE, AND THE RESULTANT VOLUME
WOULD CAUSE LONG WAITING PERIODS OR SEVERE HARDSHIP ON (THE) COUNTY IF
IT TRIED TO TAX ITS PROPERTY OWNERS TO SUPPORT (THESE) INDIGENT SICK .
. ."  108 ARIZ., 373, 376, 498 P. 2D, 464. 

THE COUNTY THUS ATTEMPTS TO SUSTAIN THE REQUIREMENT AS A NECESSARY
MEANS TO INSURE THE FISCAL INTEGRITY OF ITS FREE MEDICAL CARE PROGRAM
BY DISCOURAGING AN INFLUX OF INDIGENTS, PARTICULARLY THOSE ENTERING THE
COUNTY FOR THE SOLE PURPOSE OF OBTAINING THE BENEFITS OF ITS HOSPITAL
FACILITIES. 

FIRST, A STATE MAY NOT PROTECT THE PUBLIC FISC BY DRAWING AN
INVIDIOUS DISTINCTION BETWEEN CLASSES OF ITS CITIZENS, SHAPIRO, SUPRA,
AT 633, SO APPELLEES MUST DO MORE THAN SHOW THAT DENYING FREE MEDICAL
CARE TO NEW RESIDENTS SAVES MONEY.  THE CONSERVATION OF THE TAXPAYERS'
PURSE IS SIMPLY NOT A SUFFICIENT STATE INTEREST TO SUSTAIN A DURATIONAL
RESIDENCE REQUIREMENT WHICH, IN EFFECT, SEVERELY PENALIZES EXERCISE OF
THE RIGHT TO FREELY MIGRATE AND SETTLE IN ANOTHER STATE.  SEE RIVERA V.
DUNN, 329 F.SUPP.  554 (CONN. 1971), AFF'D, 404 U.S. 1054 (1972). 

SECOND, TO THE EXTENT THE PURPOSE OF THE REQUIREMENT IS TO INHIBIT
THE IMMIGRATION OF INDIGENTS GENERALLY, THAT GOAL IS CONSTITUTIONALLY
IMPERMISSIBLE.  /22/  AND, TO THE EXTENT THE PURPOSE IS TO DETER ONLY
THOSE INDIGENTS WHO TAKE UP RESIDENCE IN THE COUNTY SOLELY TO UTILIZE
ITS NEW AND MODERN PUBLIC MEDICAL FACILITIES, THE REQUIREMENT AT ISSUE
IS CLEARLY OVERINCLUSIVE.  THE CHALLENGED DURATIONAL RESIDENCE
REQUIREMENT TREATS EVERY INDIGENT, IN HIS FIRST YEAR OF RESIDENCE, AS
IF HE CAME TO THE JURISDICTION SOLELY TO OBTAIN FREE MEDICAL CARE. 
SUCH A CLASSIFICATION IS NO MORE DEFENSIBLE THAN THE WAITING PERIOD IN
SHAPIRO, SUPRA, OF WHICH THE COURT SAID: 

"(THE CLASS OF BARRED NEWCOMERS IS ALL-INCLUSIVE, LUMPING THE GREAT
MAJORITY WHO COME TO THE STATE FOR OTHER PURPOSES WITH THOSE WHO COME
FOR THE SOLE PURPOSE OF COLLECTING HIGHER BENEFITS."  394 U.S., AT
631.  MOREOVER, "A STATE MAY NO MORE TRY TO FENCE OUT THOSE INDIGENTS
WHO SEEK (BETTER PUBLIC MEDICAL FACILITIES) THAN IT MAY TRY TO FENCE
OUT INDIGENTS GENERALLY."  ID., AT 631.  AN INDIGENT WHO CONSIDERS THE
QUALITY OF PUBLIC HOSPITAL FACILITIES IN ENTERING THE STATE IS NO LESS
DESERVING THAN ONE WHO MOVES INTO THE STATE IN ORDER TO TAKE ADVANTAGE
OF ITS BETTER EDUCATIONAL FACILITIES.  ID., AT 631 - 632. 

IT IS ALSO USEFUL TO LOOK AT THE OTHER SIDE OF THE COIN--AT WHO WILL
BEAR THE COST OF INDIGENTS' ILLNESSES IF THE COUNTY DOES NOT PROVIDE
NEEDED TREATMENT.  FOR THOSE NEWLY ARRIVED RESIDENTS WHO DO RECEIVE AT
LEAST HOSPITAL CARE, THE COST IS OFTEN BORNE BY PRIVATE NONPROFIT
HOSPITALS, LIKE APPELLANT MEMORIAL--MANY OF WHICH ARE ALREADY IN
PRECARIOUS FINALCIAL STRAITS.  /23/  WHEN ABSORBED BY PRIVATE
HOSPITALS, THE COSTS OF CARING FOR INDIGENTS MUST BE PASSED ON TO
PAYING PATIENTS AND "AT A RATHER INCONVENIENT TIME"--ADDING TO THE
ALREADY ASTRONOMICAL COSTS OF HOSPITALIZATION WHICH BEAR SO HEAVILY ON
THE RESOURCES OF MOST AMERICANS.  /24/  THE FINANCIAL PRESSURES UNDER
WHICH PRIVATE NONPROFIT HOSPITALS OPERATE HAVE ALREADY LED MANY OF THEM
TO TURN AWAY PATIENTS WHO CANNOT PAY OR TO SEVERELY LIMIT THE NUMBER OF
INDIGENTS THEY WILL ADMIT.  /25/  AND, FOR THOSE INDIGENTS WHO RECEIVE
NO CARE, THE COST IS, OF COURSE, BORNE BY THEIR OWN SUFFERING. 

IN ADDITION, THE COUNTY'S CLAIMED FISCAL SAVINGS MAY WELL BE
ILLUSORY.  THE LACK OF TIMELY MEDICAL CARE COULD CAUSE A PATIENT'S
CONDITION TO DETERIORATE TO A POINT WHERE MORE EXPENSIVE EMERGENCY
HOSPITALIZATION (FOR WHICH NO DURATIONAL RESIDENCE REQUIREMENT APPLIES)
IS NEEDED.  AND, THE DISABILITY THAT MAY RESULT FROM LETTING AN
UNTREATED CONDITION DETERIORATE MAY WELL RESULT IN THE PATIENT AND HIS
FAMILY BECOMING A BURDEN ON THE STATE'S WELFARE ROLLS FOR THE DURATION
OF HIS EMERGENCY CARE, OR PERMANENTLY, IF HIS CAPACITY TO WORK IS
IMPAIRED.  /26/ 

THE APPELLEES ALSO ARGUE THAT ELIMINATING THE DURATIONAL RESIDENCE
REQUIREMENT WOULD DILUTE THE QUALITY OF SERVICES PROVIDED TO LONGTIME
RESIDENTS BY FOSTERING AN INFLUX OF NEWCOMERS AND THUS REQUIRING THE
COUNTY'S LIMITED PUBLIC HEALTH RESOURCES TO SERVE AN EXPANDED POOL OF
RECIPIENTS.  APPELLEES ASSERT THAT THE COUNTY SHOULD BE ABLE TO PROTECT
ITS LONGTIME RESIDENTS BECAUSE OF THEIR CONTRIBUTIONS TO THE COMMUNITY,
PARTICULARLY THROUGH THE PAST PAYMENT OF TAXES.  WE REJECTED THIS
"CONTRIBUTORY" RATIONALE BOTH IN SHAPIRO AND IN VLANDIS V. KLINE, 412
U.S. 441, 450 N. 6 (1973), BY OBSERVING THAT: 

"(SUCH) REASONING WOULD LOGICALLY PERMIT THE STATE TO BAR NEW
RESIDENTS FROM SCHOOLS, PARKS, AND LIBRARIES OR DEPRIVE THEM OF POLICE
AND FIRE PROTECTION.  INDEED IT WOULD PERMIT THE STATE TO APPORTION ALL
BENEFITS AND SERVICES ACCORDING TO THE PAST TAX CONTRIBUTIONS OF ITS
CITIZENS.  THE EQUAL PROTECTION CLAUSE PROHIBITS SUCH AN APPORTIONMENT
OF STATE SERVICES."  SHAPIRO, 394 U.S., AT 632 - 633 (FOOTNOTE
OMITTED). 

APPELLEES EXPRESS A CONCERN THAT THE THREAT OF AN INFLUX OF
INDIGENTS WOULD DISCOURAGE "THE DEVELOPMENT OF MODERN AND EFFECTIVE
(PUBLIC MEDICAL) FACILITIES."  IT IS SUGGESTED THAT WHETHER OR NOT THE
DURATIONAL RESIDENCE REQUIREMENT ACTUALLY DETERS MIGRATION, THE VOTERS
THINK THAT IT PROTECTS THEM FROM LOW INCOME FAMILIES' BEING ATTRACTED
BY THE COUNTY HOSPITAL; HENCE, THE REQUIREMENT IS NECESSARY FOR PUBLIC
SUPPORT OF THAT MEDICAL FACILITY.  A STATE MAY NOT EMPLOY AN INVIDIOUS
DISCRIMINATION TO SUSTAIN THE POLITICAL VIABILITY OF ITS PROGRAMS.  AS
WE OBSERVED IN SHAPIRO, SUPRA, AT 641, "(PERHAPS CONGRESS COULD INDUCE
WIDER STATE PARTICIPATION IN SCHOOL CONSTRUCTION IF IT AUTHORIZED THE
USE OF JOINT FUNDS FOR THE BUILDING OF SEGREGATED SCHOOLS," BUT THAT
PURPOSE WOULD NOT SUSTAIN SUCH A SCHEME.  SEE ALSO COLE V. HOUSING
AUTHORITY FO THE CITY OF NEWPORT, 435 F.2D 807, 812 - 813 (CA1 1970). 

        B 

THE APPELLEES ALSO ARGUE THAT THE CHALLENGED STATUTE SERVES SOME
ADMINISTRATIVE OBJECTIVES.  THEY CLAIM THAT THE ONE-YEAR WAITING PERIOD
IS A CONVENIENT RULE OF THUMB TO DETERMINE BONA FIDE RESIDENCE. 
BESIDES NOT BEING FACTUALLY DEFENSIBLE, THIS TEST IS CERTAINLY
OVERBROAD TO ACCOMPLISH ITS AVOWED PURPOSE.  A MERE RESIDENCE
REQUIREMENT WOULD ACCOMPLISH THE OBJECTIVE OF LIMITING THE USE OF
PUBLIC MEDICAL FACILITIES TO BONA FIDE RESIDENTS OF THE COUNTY WITHOUT
SWEEPING WITHIN ITS PROHIBITIONS THOSE BONA FIDE RESIDENTS WHO HAD
MOVED INTO THE STATE WITH THE QUALIFYING PERIOD.  LESS DRASTIC MEANS,
WHICH DO NOT IMPINGE ON THE RIGHT OF INTERSTATE TRAVEL, ARE AVAILABLE
AND EMPLOYED /27/  TO ASCERTAIN AN INDIVIDUAL'S TRUE INTENTIONS,
WITHOUT EXACTING A PROTRACTED WAITING PERIOD WHICH MAY HAVE DIRE
ECONOMIC AND HEALTH CONSEQUENCES FOR CERTAIN CITIZENS.  SEE SHELTON V.
TUCKER, 364 U.S. 479, 488 (1960).  THE ARIZONA STATE WELFARE AGENCY
APPLIES CRITERIA OTHER THAN THE DURATION OF RESIDENCY TO DETERMINE
WHETHER AN APPLICANT IS A BONA FIDE RESIDENT.  /28/  THE ARIZONA
MEDICAL ASSISTANCE TO THE AGED LAW PROVIDES PUBLIC MEDICAL CARE FOR
CERTAIN SENIOR CITIZENS, CONDITIONED ONLY ON RESIDENCE.  /29/  PINAL
COUNTY, ARIZONA, HAS OPERATED ITS PUBLIC HOSPITAL WITHOUT BENEFIT OF
THE DURATIONAL RESIDENCE REQUIREMENT SINCE THE APPLICATION OF THE
CHALLENGED STATUTE IN THAT COUNTY WAS ENJOINED BY A FEDERAL COURT IN
VALENCIANO V. BATEMAN, 323 F.SUPP.  600 (ARIZ. 1971).  /30/ 

THE APPELLEES ALLEGE THAT THE WAITING PERIOD IS A USEFUL TOOL FOR
PREVENTING FRAUD.  CERTAINLY, A STATE HAS A VALID INTEREST IN
PREVENTING FRAUD BY ANY APPLICANT FOR MEDICAL CARE, WHETHER NEWCOMER OR
OLDTIME RESIDENT, SHAPIRO, 394 U.S., AT 637, BUT THE CHALLENGED
PROVISION IS ILL-SUITED TO THAT PURPOSE.  AN INDIGENT APPLICANT, INTENT
ON COMMITTING FRAUD, COULD AS EASILY SWEAR TO HAVING BEEN A RESIDENT OF
THE COUNTY FOR THE PRECEDING YEAR AS TO BEING ONE CURRENTLY.  AND,
THERE IS NO NEED FOR THE STATE TO RELY ON THE DURATIONAL REQUIREMENT AS
A SAFEGUARD AGAINST FRAUD WHEN OTHER MECHANISMS TO SERVE THAT PURPOSE
ARE AVAILABLE WHICH WOULD HAVE A LESS DRASTIC IMPACT ON
CONSTITUTIONALLY PROTECTED INTERESTS.  NAACP V. BUTTON, 371 U.S. 415,
438 (1963).  FOR EXAMPLE, STATE LAW MAKES IT A CRIME TO FILE AN "UNTRUE
STATEMENT . . . FOR THE PURPOSE OF OBTAINING HOSPITALIZATION, MEDICAL
CARE OR OUTPATIENT RELIEF" AT COUNTY EXPENSE.  ARIZ. REV. STAT. ANN.
PARA. 11 - 297C (SUPP. 1973 - 1974).  SEE DUNN, 405 U.S. AT 353 - 354;
U.S. DEPT. OF AGRICULTURE V. MORENO, 413 U.S. 528, 534 (1973). 

FINALLY, APPELLEES ASSERT THAT THE WAITING PERIOD IS NECESSARY FOR
BUDGET PREDICTABILITY, BUT WHAT WAS SAID IN SHAPIRO IS EQUALLY
APPLICABLE TO THE CASE BEFORE US: 

"THE RECORDS . . . ARE UTTERLY DEVOID OF EVIDENCE THAT (THE COUNTY)
USES THE ONE-YEAR REQUIREMENT AS A MEANS TO PREDICT THE NUMBER OF
PEOPLE WHO WILL REQUIRE ASSISTANCE IN THE BUDGET YEAR.  (THE APPELLEES
DO NOT TAKE) A CENSUS OF NEW RESIDENTS . . . NOR ARE NEW RESIDENTS
REQUIRED TO GIVE ADVANCE NOTICE OF THEIR NEED FOR . . . ASSISTANCE. 
THUS, THE . . . AUTHORITIES CANNOT KNOW HOW MANY NEW RESIDENTS COME
INTO THE JURISDICTION IN ANY YEAR, MUCH LESS HOW MANY OF THEM WILL
REQUIRE PUBLIC ASSISTANCE."  394 U.S., AT 634 - 635 (FOOTNOTE
OMITTED).  WHATEVER THE DIFFICULTIES IN PROJECTING HOW MANY NEWCOMERS
TO A JURISDICTION WILL REQUIRE WELFARE ASSISTANCE, IT COULD ONLY BE AN
EVEN MORE DIFFICULT AND SPECULATIVE TASK TO ESTIMATE HOW MANY OF THOSE
INDIGENT NEWCOMERS WILL REQUIRE MEDICAL CARE DURING THEIR FIRST YEAR IN
THE JURISDICTION.  THE IRRELEVANCE OF THE ONE-YEAR RESIDENCE
REQUIREMENT TO BUDGETARY PLANNING IS FURTHER UNDERSCORED BY THE FACT
THAT EMERGENCY MEDICAL CARE FOR ALL NEWCOMERS AND MORE COMPLETE MEDICAL
CARE FOR THE AGED ARE CURRENTLY BEING PROVIDED AT PUBLIC EXPENSE
REGARDLESS OF WHETHER THE PATIENT HAS BEEN A RESIDENT OF THE COUNTY FOR
THE PRECEDING YEAR.  SEE SHAPIRO, SUPRA, AT 635. 

        VII 

THE ARIZONA DURATIONAL RESIDENCE REQUIREMENT FOR ELIGIBILITY FOR
NONEMERGENCY FREE MEDICAL CARE CREATES AN "INVIDIOUS CLASSIFICATION"
THAT IMPINGES ON THE RIGHT OF INTERSTATE TRAVEL BY DENYING NEWCOMERS
"BASIC NECESSITIES OF LIFE."  SUCH A CLASSIFICATION CAN ONLY BE
SUSTAINED ON A SHOWING OF A COMPELLING STATE INTEREST.  APPELLEES HAVE
NOT MET THEIR HEAVY BURDEN OF JUSTIFICATION, OR DEMONSTRATED THAT THE
STATE, IN PURSUING LEGITIMATE OBJECTIVES, HAS CHOSEN MEANS WHICH DO NOT
UNNECESSARILY IMPINGE ON CONSTITUTIONALLY PROTECTED INTERESTS. 
ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF ARIZONA IS REVERSED
AND THE CASE REMANDED FOR FURTHER ACTION NOT INCONSISTENT WITH THIS
OPINION. 

 SO ORDERED. 

/1/  ARIZ. REV. STAT. ANN. PARA. 11 - 291 (SUPP. 1973 - 1974). 

/2/  ARIZ. REV. STAT. ANN. PARA. 11 - 297A (SUPP. 1973 - 1974)
PROVIDES IN RELEVANT PART THAT: 

   "EXCEPT IN EMERGENCY CASES WHEN IMMEDIATE HOSPITALIZATION OR

  MEDICAL CARE IS NECESSARY FOR THE PRESERVATION OF LIFE OR LIMB NO

  PERSON SHALL BE PROVIDED HOSPITALIZATION, MEDICAL CARE OR

  OUTPATIENT RELIEF UNDER THE PROVISIONS OF THIS ARTICLE WITHOUT

  FIRST FILING WITH A MEMBER OF THE BOARD OF SUPERVISORS OF THE

  COUNTY IN WHICH HE RESIDES A STATEMENT IN WRITING, SUBSCRIBED AND

  SWORN TO UNDER OATH, THAT HE IS AN INDIGENT AS SHALL BE DEFINED

  BY RULES AND REGULATIONS OF THE STATE DEPARTMENT OF ECONOMIC

  SECURITY, AN UNEMPLOYABLE TOTALLY DEPENDENT UPON THE STATE OR

COUNTY GOVERNMENT FOR FINANCIAL SUPPORT, OR AN EMPLOYABLE OF

  SWORN LOW INCOME WITHOUT SUFFICIENT FUNDS TO PROVIDE HIMSELF

  NECESSARY HOSPITALIZATION AND MEDICAL CARE, AND THAT HE HAS BEEN

  A RESIDENT OF THE COUNTY FOR THE PRECEDING TWELVE MONTHS." 

  (EMPHASIS ADDED.) 

/3/  THUS, THE QUESTION OF THE RIGHTS OF TRANSIENTS TO MEDICAL CARE
IS NOT PRESENTED BY THIS CASE. 

/4/  ARIZONA'S INTERMEDIATE APPELLATE COURT HAD ALSO DECLARED THE
DURATIONAL RESIDENCE REQUIREMENT UNCONSTITUTIONAL IN BOARD OF
SUPERVISORS, PIMA COUNTY V. ROBINSON, 10 ARIZ. APP. 238, 457 P.2D 951
(1969), BUT ITS DECISION WAS VACATED AS MOOT BY THE ARIZONA SUPREME
COURT.  105 ARIZ. 280, 463 P.2D 536 (1970). 

AN ARIZONA ONE-YEAR DURATIONAL RESIDENCE REQUIREMENT FOR CARE AT
STATE MENTAL HEALTH FACILITIES WAS DECLARED UNCONSTITUTIONAL IN VAUGHAN
V. BOWER, 313 F.SUPP.  37 (ARIZ.), AFF'D, 400 U.S. 884 (1970).  SEE N.
11, INFRA.     A FLORIDA ONE-YEAR DURATIONAL RESIDENCE REQUIREMENT FOR
MEDICAL CARE AT PUBLIC EXPENSE WAS FOUND UNCONSTITUTIONAL IN ARNOLD V.
HALIFAX HOSPITAL DIST., 314 F.SUPP.  277 (MD FLA. 1970), AND CRAPPS V.
DUVAL COUNTY HOSPITAL AUTH., 314 F.SUPP.  181 (MD FLA. 1970). 

/5/  E.G., WEBER V. AETNA CAS. & SURETY CO., 406 U.S. 164, 173
(1972); DUNN V. BLUMSTEIN, 405 U.S. 330, 335 (1972). 

/6/  394 U.S., AT 634.  SEE ALSO ID., AT 642 - 644 (STEWART, J.,

  CONCURRING).     /7/  DUNN V. BLUMSTEIN, SUPRA; SHAPIRO V.
THOMPSON, 394 U.S. 618 (1969); SEE WYMAN V. LOPEZ, 404 U.S. 1055
(1972); OREGON V. MITCHELL, 400 U.S. 112, 237 (1970) (SEPARATE OPINION
OF BRENNAN, WHITE, AND MARSHALL, JJ.), 285 - 286 (STEWART, J.,
CONCURRING AND DISSENTING, WITH WHOM BURGER, C.J., AND BLACKMUN, J.,
JOINED); WYMAN V. BOWENS, 397 U.S. 49 (1970); UNITED STATES V. GUEST,
383 U.S. 745, 757 - 759 (1966); CF. GRIFFIN V. BRECKENRIDGE, 403 U.S.
88, 105 - 106 (1971); DEMIRAGH V. DE VOS, 476 F.2D 403 (CA2 1973).  SEE
GENERALLY Z. CHAFEE, THREE HUMAN RIGHTS IN THE CONSTITUTION OF 1787,
PP. 171 - 181, 187 ET SEQ. (1956). 

/8/  SEE KING V. NEW ROCHELLE MUNICIPAL HOUSING AUTH., 442 F.2D 646,
648 N. 5 (CA2 1971); COLE V. HOUSING AUTHORITY OF THE CITY OF NEWPORT,
435 F.2D 807, 811 (CA1 1970); SELLFORD V. BATTAGLIA, 343 F.WUPP.  143,
147 (DEL. 1972); CF. TRUAX V. RAICH, 239 U.S. 33, 39 (1915); NOTE,
SHAPIRO V. THOMPSON; TRAVEL, WELFARE AND THE CONSTITUTION, 44 N.Y.U.L.
REV. 989, 1012 (1969). 

/9/  APPELLEES ARGUE THAT THE COUNTY SHOULD BE ABLE TO APPLY A
DURATIONAL RESIDENCE REQUIREMENT TO PRESERVE THE QUALITY OF SERVICES
PROVIDED ITS LONGTIME RESIDENTS BECAUSE OF THEIR TIES TO THE COMMUNITY
AND THE PREVIOUS CONTRIBUTIONS THEY HAVE MADE, PARTICULARLY THROUGH
PAST PAYMENT OF TAXES.  IT WOULD SEEM INCONSISTENT TO ARGUE THAT THE
RESIDENCE REQUIREMENT SHOULD BE CONSTRUED TO BAR LONGTIME ARIZONA
RESIDENTS, EVEN IF UNCONSTITUTIONAL AS APPLIED TO PERSONS MIGRATING
INTO MARICOPA COUNTY FROM OUTSIDE THE STATE.  SURELY, LONGTIME
RESIDENTS OF NEIGHBORING COUNTIES HAVE MORE TIES WITH MARICOPA COUNTY
AND EQUITY IN ITS PUBLIC PROGRAMS, AS THROUGH PAST PAYMENT OF STATE
TAXES, THAN DO MIGRANTS FROM DISTANT STATES.  THIS "CONTRIBUTORY"
RATIONALE IS DISCUSSED, INFRA, AT 266. 

/10/  FOR A DISCUSSION OF THE PROBLEMS POSED BY THIS AMBIGUITY, SEE
JUDGE COFFIN'S PERCEPTIVE OPINION IN COLE V. HOUSING AUTHORITY OF THE
CITY OF NEWPORT, 435 F.2D 807 (CA1 1970). 

/11/  IN VAUGHN V. BOWER, 313 F.SUPP.  37 (ARIZ.), AFF'D, 400 U.S.
884 (1970), A FEDERAL COURT STRUCK DOWN AN ARIZONA LAW PERMITTING THE
DIRECTOR OF A STATE MENTAL HOSPITAL TO RETURN TO THE STATE OF HIS PRIOR
RESIDENCE, ANY INDIGENT PATIENT WHO HAD NOT BEEN A RESIDENT OF ARIZONA
FOR THE YEAR PRECEDING HIS CIVIL COMMITMENT.  IT IS DOUBTFUL THAT THE
CHALLENGED LAW COULD HAVE HAD ANY DETERRENT EFFECT ON MIGRATION, SINCE
FEW PEOPLE CONSIDER BEING COMMITTED TO A MENTAL HOSPITAL WHEN THEY
DECIDE TO TAKE UP RESIDENCE IN A NEW STATE.  SEE ALSO AFFELDT V.
WHITCOMB, 319 F.SUPP.  69 (ND IND. 1970), AFF'D, 405 U.S. 1034 (1972). 

/12/  SEE VIANDIS V. KLINE, 412 U.S. 441, 452 - 453, N. 9 (1973). 

/13/  FOR EXAMPLE, THE SHAPIRO COURT CAUTIONED THAT IT MEANT TO
"IMPLY NO VIEW OF THE VALIDITY OF WAITING-PERIOD OR RESIDENCE
REQUIREMENTS DETERMINING ELIGIBILITY (INTER ALIA) TO OBTAIN A LICENSE
TO PRACTICE A PROFESSION, TO HUNT OR FISH, AND SO FORTH."  394 U.S. AT
638 N. 21. 

/14/  DEPT. OF HEALTH, EDUCATION, AND WELFARE (HEW) REPORT ON
MEDICAL RESOURCES AVAILABLE TO MEET THE NEEDS OF PUBLIC ASSISTANCE
RECIPIENTS, HOUSE COMMITTEE ON WAYS AND MEANS, 86TH CONG., 2D SESS., 74
(COMM. PRINT 1961).  SIMILARLY, PRESIDENT NIXON HAS OBSERVED THAT "'(IT
IS HEALTH WHICH IS REAL WEALTH,' SAID GHANDI, 'AND NOT PIECES OF GOLD
AND SILVER.'"  HEALTH, MESSAGE FROM THE PRESIDENT, 92D CONG., 1ST
SESS., H.R. DOC. NO. 92 - 49, P. 18 (1971).  SEE ALSO MATERIALS CITED
AT N. 4, SUPRA. 

/15/  REFERENCE TO THE TUITION CASES IS INSTRUCTIVE.  THE LOWER
COURTS HAVE CONTRASTED IN-STATE TUITION WITH "NECESSITIES OF LIFE" IN A
WAY THAT WOULD CLEARLY INCLUDE MEDICAL CARE IN THE LATTER CATEGORY. 
THE DISTRICT COURT IN STARNS V. MALKERSON, 326 F.SUPP.  234, 238 (MINN.
1970), AFF'D, 401 U.S. 985 (1971), QUOTED WITH APPROVAL FROM KIRK V.
BOARD OF REGENTS, 273 CAL. APP. 2D 430, 440, 78 CAL. RPTR.  260, 266 -
267 (1969), APPEAL DISMISSED, 396 U.S. 554 (1970) (EMPHASIS ADDED): 

     "'WHILE WE FULLY RECOGNIZE THE VALUE OF HIGHER EDUCATION, WE

  CANNOT EQUATE ITS ATTAINMENT WITH FOOD, CLOTHING AND SHELTER. 

  SHAPIRO INVOLVED THE IMMEDIATE AND PRESSING NEED FOR PRESERVATION

  OF LIFE AND HEALTH OF PERSONS UNABLE TO LIVE WITHOUT PUBLIC

  ASSISTANCE, AND THEIR DEPENDENT CHILDREN.  THUS, THE RESIDENCE

  REQUIREMENT IN SHAPIRO COULD CAUSE GREAT SUFFERING AND EVEN LOSS

 OF LIFE.  THE DURATIONAL RESIDENCE REQUIREMENT FOR ATTENDANCE AT

  PUBLICLY FINANCED INSTITUTIONS OF HIGHER LEARNING DO NOT INVOLVE

  SIMILAR RISKS.  NOR WAS PETITIONER . . . PRECLUDED FROM THE

  BENEFIT OF OBTAINING HIGHER EDUCATION.  CHARGING HIGHER TUITION

  FEES TO NON-RESIDENT STUDENTS CANNOT BE EQUATED WITH GRANTING OF

  BASIC SUBSISTENCE TO ONE CLASS OF NEEDY RESIDENTS WHILE DENYING

  IT TO AN EQUALLY NEEDY CLASS OF RESIDENTS.'" 

SEE ALSO NOTE, THE CONSTITUTIONALITY OF NONRESIDENT TUITION, 55
MINN. L. REV. 1139, 1149 - 1158 (1971).  MOREOVER, IN VLANDIS, SUPRA,
THE COURT OBSERVED THAT "SPECIAL PROBLEMS (ARE) INVOLVED IN DETERMINING
THE BONA FIDE RESIDENCE OF COLLEGE STUDENTS WHO COME FROM OUT OF STATE
TO ATTEND (A) PUBLIC UNIVERSITY . . . ," SINCE THOSE STUDENTS ARE
CHARACTERISTICALLY TRANSIENT, 412 U.S., AT 452.  THERE IS NO SUCH
AMBIGUITY ABOUT WHETHER APPELLANT EVARO IS A BONA FIDE RESIDENT OF
MARICOPA COUNTY. 

/16/  108 ARIZ. 373, 374, 498 P.2D 461, 462 (EMPHASIS ADDED). 

/17/  SEE VALENCIANO V. BATEMAN, 323 F.SUPP.  600, 603 (ARIZ.
1971).  SEE GENERALLY HEW REPORT ON MEDICAL RESOURCES, SUPRA, N. 14, AT
73 - 74; DEPT OF HEW, HUMAN INVESTMENT PROGRAMS:  DELIVERY OF HEALTH
SERVICES FOR THE POOR (1967). 

/18/  SEE HEW, HILL-BURTON PROJECT REGISTER, JULY 1, 1947 - JUNE 30,
1967.  HEW PUBLICATION NO. (HSM) 72 - 4011, P. 37.  MARICOPA COUNTY HAS
RECEIVED OVER $2 MILLION IN HILL-BURTON (42 U.S.C. PARA. 291 ET SEQ.)
FUNDS SINCE 1947. 

/19/  MEDICAID, THE PRIMARY FEDERAL PROGRAM FOR PROVIDING MEDICAL
CARE TO INDIGENTS AT PUBLIC EXPENSE, DOES NOT PERMIT PARTICIPATING
STATES TO APPLY A DURATIONAL RESIDENCE REQUIREMENT AS A CONDITION TO
ELIGIBILITY, 42 U.S.C. PARA. 1396AB)(3), AND "THIS CONCLUSION OF A
COEQUAL BRANCH OF GOVERNMENT IS NOT WITHOUT SIGNIFICANCE."  FRONTIERO
V. RICHARDSON, 411 U.S. 677, 687 - 688 (1973).  THE STATE OF ARIZONA
DOES NOT PARTICIPATE IN THE MEDICAID PROGRAM. 

/20/  CF. ELY, LEGISLATIVE AND ADMINISTRATIVE MOTIVATION IN
CONSTITUTIONAL LAW, 79 YALE L.J. 1205, 1223 - 1224 (1970); NOTE,
DEVELOPMENTS IN THE LAW--EQUAL PROTECTION, 82 HARV. L. REV. 1065, 1076
1077 (1969). 

/21/  THE ARIZONA SUPREME COURT OBSERVED THAT BECAUSE THIS CASE
INVOLVES A GOVERNMENTAL BENEFIT AKIN TO WELFARE, THE "REASONABLE BASIS"
TEST OF DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), SHOULD APPLY.  IN
UPHOLDING A STATE REGULATION PLACING AN ABSOLUTE LIMIT ON THE AMOUNT OF
WELFARE ASSISTANCE TO BE PAID A DEPENDENT FAMILY REGARDLESS OF SIZE OR
ACTUAL NEED, THE COURT IN DANDRIDGE FOUND IT "ENOUGH THAT THE STATE'S
ACTION BE RATIONALLY BASED AND FREE FROM INVIDIOUS DISCRIMINATION." 
ID., AT 487.  THE COURT LATER DISTINGUISHED DANDRIDGE IN GRAHAM V.
RICHARDSON, 403 U.S. 365, 276 (1971), WHERE MR. JUSTICE BLACKMUN,
WRITING FOR THE COURT, OBSERVED THAT "(APPELLANTS'  ATTEMPTED RELIANCE
ON DANDRIDGE . . . IS ALSO MISPLACED, SINCE THE CLASSIFICATION INVOLVED
IN THAT CASE (DID NOT IMPINGE) UPON A FUNDAMENTAL CONSTITUTIONAL RIGHT
. . ."  STRICT SCRUTINY IS REQUIRED HERE BECAUSE THE CHALLENGED
CLASSIFICATION IMPINGES ON THE RIGHT OF INTERSTATE TRAVEL.  COMPARE
DANDRIDGE, SUPRA, AT 484 N. 16, WITH SHAPIRO V. THOMPSON, SUPRA. 

/22/  SHAPIRO V. THOMPSON, 394 U.S., AT 629. 

/23/  SEE CANTOR, THE LAW AND POOR PEOPLE'S ACCESS TO HEALTH CARE,
35 LAW & CONTEMP.  PROB.  901, 909 - 914 (1970); CF. CATHOLIC MEDICAL
CENTER V. ROCKEFELLER, 305 F.SUPP.  1256 AND 1268 (EDNY 1969), VACATED
AND REMANDED, 397 U.S. 820, AFF'D ON REMAND, 430 F.2D 1297, APPEAL
DISMISSED, 400 U.S. 931 (1970). 

/24/  HEW REPORT ON MEDICAL RESOURCES, SUPRA, N. 14, AT 74.  SEE
GENERALLY HEALTH, MESSAGE FROM THE PRESIDENT, SUPRA, N. 14; E. KENNEDY,
IN CRITICAL CONDITION:  THE CRISES IN AMERICA'S HEALTH CARE (1973);
HEARINGS ON THE HEALTH CARE CRISIS IN AMERICA BEFORE THE SUBCOMMITTEE
ON HEALTH OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, 92D
CONG., 1ST SESS. (1971). 

/25/  CANTOR, SUPRA, N. 23; SEE E. KENNEDY, SUPRA, N. 24, AT 78 -
94; NOTE, WORKING RULES FOR ASSURING NONDISCRIMINATION IN HOSPITAL
ADMINISTRATION, 74 YALE L.J. 151, 156 N. 32 (1964); CF., E.G., STANTURF
V. SIPES, 447 S.W.2D 558 (MO. 1969) (HOSPITAL REFUSED TREATMENT TO
FROSTBITE VICTIM WHO WAS UNABLE TO PAY $25 DEPOSIT).  SEE GENERALLY HEW
REPORT ON MEDICAL RESOURCES, SUPRA, N. 14, AT 74; HEARINGS ON THE
HEALTH CARE CRISIS IN AMERICA, SUPRA, N. 24. 

/26/  "(LACK OF TIMELY HOSPITALIZATION AND MEDICAL CARE FOR THOSE
UNABLE TO PAY HAS BEEN CONSIDERED AN ECONOMIC LIABILITY TO THE PATIENT,
THE HOSPITAL, AND TO THE COMMUNITY IN WHICH THESE CITIZENS MIGHT
OTHERWISE BE SELF-SUPPORTING . . ."  HEW REPORT ON MEDICAL RESOURCES,
SUPRA, N. 14, AT 73; COMMENT, INDIGENTS, HOSPITAL ADMISSIONS AND EQUAL
PROTECTION, 5 U. MICH. J.L. REFORM 502, 515 - 516 (1972); CF.
BATTISTELLA & SOUTHBY, CRISIS IN AMERICAN MEDICINE, THE LANCET 581, 582
(MAR. 16, 1968). 

/27/  SEE GREEN V. DEPT. OF PUBLIC WELFARE OF DELAWARE, 270 F.SUPP. 
173, 177 - 178 (DEL. 1967). 

/28/ ARIZ. REV. STAT. ANN. 46-292(1) (SUPP. 1973-1974). 

/29/ ARIZ. REV. STAT. ANN. 46-261.02(3) (SUPP. 1973-1974). 

/30/  IN ADDITION, PIMA COUNTY, ARIZONA, DID NOT APPLY THE
DURATIONAL RESIDENCE REQUIREMENT BETWEEN AUGUST 1969, WHEN THE
REQUIREMENT WAS FOUND UNCONSTITUTIONAL BY THE ARIZONA COURT OF APPEALS,
BOARD OF SUPERVISORS, PIMA COUNTY V. ROBINSON, 10 ARIZ. APP. 238, 457
P.2D 951 AND SEPTEMBER 1970, WHEN THAT JUDGMENT WAS VACATED AS MOOT BY
THE ARIZONA SUPREME COURT, 105 ARIZ. 280, 463 P. 2D 536. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACKMUN CONCUR IN THE RESULT. 

MR. JUSTICE DOUGLAS. 

THE LEGAL AND ECONOMIC ASPECTS OF MEDICAL CARE /1/  ARE ENORMOUS;
AND I DOUBT IF DECISIONS UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT ARE EQUAL TO THE TASK OF DEALING WITH THESE
MATTERS.  SO FAR AS INTERSTATE TRAVEL PER SE IS CONSIDERED, I SHARE THE
DOUBTS OF MY BROTHER REHNQUIST.  THE PRESENT CASE, HOWEVER, TURNS FOR
ME ON A DIFFERENT AXIS.  THE PROBLEM HAS MANY ASPECTS.  THE THERAPY OF
ARIZONA'S ATMOSPHERE BRINGS MANY THERE WHO SUFFER FROM ASTHMA,
BRONCHITIS, ARTHRITIS, AND TUBERCULOSIS.  MANY COMING ARE INDIGENT OR
BECOME INDIGENT AFTER ARRIVAL.  ARIZONA DOES NOT DENY MEDICAL HELP TO
"EMERGENCY" CASES "WHEN IMMEDIATE HOSPITALIZATION OR MEDICAL CARE IS
NECESSARY FOR THE PRESERVATION OF LIFE OR LIMB," ARIZ. REV. STAT. ANN.
11-297A (SUPP. 1973 - 1974).  FOR OTHERS, IT REQUIRES A 12-MONTH
DURATIONAL RESIDENCE. 

THE ACT IS NOT AIMED AT INTERSTATE TRAVELERS; IT APPLIES EVEN TO A
LONG-TERM RESIDENT WHO MOVES FROM ONE COUNTY TO ANOTHER.  AS STATED BY
THE SUPREME COURT OF ARIZONA IN THE PRESENT CASE:  "THE REQUIREMENT
APPLIES TO ALL CITIZENS WITHIN THE STATE INCLUDING LONG TERM RESIDENTS
OF ONE COUNTY WHO MOVE TO ANOTHER COUNTY.  THUS, THE CLASSIFICATION
DOES NOT SINGLE OUT NON-RESIDENTS NOR ATTEMPT TO PENALIZE INTERSTATE
TRAVEL.  THE REQUIREMENT IS UNIFORMLY APPLIED."  108 ARIZ. 373, 375,
498 P.2D 461, 463. 

WHAT ARIZONA HAS DONE, THEREFORE, IS TO FENCE THE POOR OUT OF THE
METROPOLITAN COUNTIES, SUCH AS MARICOPA COUNTY (PHOENIX) AND PIMA
COUNTY (TUCSON) BY USE OF A DURATIONAL RESIDENCE REQUIREMENT.  WE ARE
TOLD THAT EIGHT ARIZONA COUNTIES HAVE NO COUNTY HOSPITALS, THAT MOST
INDIGENT CARE IN THOSE AREAS EXISTS ONLY ON A CONTRACT BASIS.  IN SAN
ANTONIO INDEPENDENT SCHOOL DIST. V. RODRIGUEZ, 411 U.S. A, WE HAD A
CASE WHERE TEXAS CREATED A SCHEME BY WHICH SCHOOL DISTRICTS WITH A LOW
PROPERTY TAX BASE, FROM WHICH THEY COULD RAISE ONLY MEAGER FUNDS,
OFFERED A LOWER QUALITY OF EDUCATION TO THEIR STUDENTS THAN THE
WEALTHIER DISTRICTS.  THAT SYSTEM WAS UPHELD AGAINST THE CHARGE THAT
THE STATE SYSTEM VIOLATED THE EQUAL PROTECTION CLAUSE.  IT WAS A
CLOSELY DIVIDED COURT AND I WAS IN DISSENT.  I SUPPOSE THAT IF A STATE
CAN FENCE IN THE POOR IN EDUCATIONAL PROGRAMS, IT CAN DO SO IN MEDICAL
PROGRAMS.  BUT TO ALLOW ARIZONA FREEDOM TO CARRY FORWARD ITS MEDICAL
PROGRAM WE MUST GO ONE STEP BEYOND THE SAN ANTONIO CASE.  IN THE LATTER
THERE WAS NO LEGAL BARRIER TO MOVEMENT INTO A BETTER DISTRICT.  HERE A
ONE-YEAR BARRIER TO MEDICAL CARE, SAVE FOR "EMERGENCY" CARE, IS ERECTED
AROUND THE AREAS THAT HAVE MEDICAL FACILITIES FOR THE POOR. 

CONGRESS HAS STRUGGLED WITH THE PROBLEM.  IN THE KERR-MILLS ACT OF
1960, 74 STAT. 987, 42 U.S.C. 302(B)(2), IT ADDED PROVISIONS TO THE
SOCIAL SECURITY ACT REQUIRING THE SECRETARY OF HEALTH, EDUCATION, AND
WELFARE TO DISAPPROVE ANY STATE PLAN FOR MEDICAL ASSISTANCE TO THE AGED
(MEDICAID) THAT EXCLUDES "ANY INDIVIDUAL WHO RESIDES IN THE STATE,"
THUS ELIMINATING DURATIONAL RESIDENCE REQUIREMENTS. 

MARICOPA COUNTY HAS RECEIVED OVER TWO MILLION DOLLARS IN FEDERAL FUNDS
FOR HOSPITAL CONSTRUCTION UNDER THE HILLBURTON ACT, 42 U.S.C. 291 ET
SEQ. SECTION 291CE) AUTHORIZES THE ISSUANCE OF REGULATIONS GOVERNING
THE OPERATION OF HILL-BURTON FACILITIES.  THE REGULATIONS CONTAIN
CONDITIONS THAT THE FACILITY TO BE CONSTRUCTED OR MODERNIZED WITH THE
FUNDS "WILL BE MADE AVAILABLE TO ALL PERSONS RESIDING IN THE
TERRITORIAL AREA OF THE APPLICANT" AND THAT THE APPLICANT WILL RENDER
"A REASONABLE VOLUME OF SERVICES TO PERSONS UNABLE TO PAY THEREFOR." 
/2/  THE CONDITIONS OF FREE SERVICES FOR INDIGENTS, HOWEVER, MAY BE
WAIVED IF "NOT FEASIBLE FROM A FINANCIAL VIEWPOINT."     PRIOR TO THE
APPLICATION THE STATE AGENCY MUST OBTAIN FROM THE APPLICANT AN
ASSURANCE "THAT THERE WILL BE MADE AVAILABLE IN THE FACILITY OR PORTION
THEREOF TO BE CONSTRUCTED OR MODERNIZED A REASONABLE VOLUME OF SERVICES
TO PERSONS UNABLE TO PAY THEREFOR.  THE REQUIREMENT OF AN ASSURANCE
FROM AN APPLICANT SHALL BE WAIVED IF THE APPLICANT DEMONSTRATES TO THE
SATISFACTION OF THE STATE AGENCY, SUBJECT TO SUBSEQUENT APPROVAL BY THE
SECRETARY, THAT SUCH A REQUIREMENT IS NOT FEASIBLE FROM A FINANCIAL
VIEWPOINT."  42 CFR 53.  111(C)(1).  /3/ 

SO FAR AS I CAN ASCERTAIN, THE DURATIONAL RESIDENCE REQUIREMENT
IMPOSED BY MARICOPA COUNTY HAS NOT BEEN FEDERALLY APPROVED AS A
CONDITION TO THE RECEIPT OF HILL-BURTON FUNDS. 

MARICOPA COUNTY DOES ARGUE THAT IT IS NOT FINANCIALLY FEASIBLE TO
PROVIDE FREE NONEMERGENCY MEDICAL CARE TO NEW RESIDENTS.  EVEN SO, THE
FEDERAL REGULATORY FRAMEWORK DOES NOT LEAVE THE COUNTY UNCONTROLLED IN
DETERMINING WHICH INDIGENTS WILL RECEIVE THE BENEFIT OF THE RESOURCES
WHICH ARE AVAILABLE.  IT IS CLEAR, FOR EXAMPLE, THAT THE COUNTY COULD
NOT LIMIT SUCH SERVICE TO WHITES OUT OF A PROFESSED INABILITY TO
SERVICE INDIGENTS OF ALL RACES BECAUSE 42 CFR PARA. 53.112(C) PROHIBITS
SUCH D CRIMINATION IN THE OPERATION OF HILL-BURTON FACILITIES.  IT DOES
NOT ALLOW RACIAL DISCRIMINATION EVEN AGAINST TRANSIENTS. 

MOREOVER, HILL-BURTON ACT DONEES ARE GUIDED BY 42 CFR
53.111(G),WHICH SETS OUT IN SOME DETAIL THE CRITERIA WHICH MUST BE USED
IN IDENTIFYING PERSONS UNABLE TO PAY FOR SUCH SERVICES.  THE CRITERIA
INCLUDE THE PATIENT'S HEALTH AND MEDICAL INSURANCE COVERAGE, PERSONAL
AND FAMILY INCOME, FINANCIAL OBLIGATIONS AND RESOURCES, AND "SIMILAR
FACTORS."  MARICOPA COUNTY, PURSUANT TO THE STATE LAW HERE CHALLENGED,
EMPLOYS LENGTH OF COUNTY RESIDENCE AS AN ADDITIONAL CRITERION IN
IDENTIFYING INDIGENT RECIPIENTS OF UNCOMPENSATED NONEMERGENCY MADICAL
CARE.  THE FEDERAL REGULATIONS, HOWEVER, DO NOT SEEM TO RECOGNIZE THAT
AS AN ACCEPTABLE CRITERION. 

AND, AS WE HELD IN THORPE V. HOUSING AUTHORITY, 393 U.S. 268;
MOURNING V. FAMILY PUBLICATIONS SERVICE, 411 U.S. 356, THESE FEDERAL
CONDITIONS ATTACHED TO FEDERAL GRANTS ARE VALID WHEN "REASONABLE
RELATED TO THE PURPOSES OF THE ENABLING LEGISLATION.)  393 U.S., AT 280
- 281. 

IT IS DIFFICULT TO IMPUTE TO CONGRESS APPROVAL OF THE DURATIONAL
RESIDENCE REQUIREMENT, FOR THE IMPLICATIONS OF SUCH A DECISION WOULD
INVOLVE WEIGHTY EQUAL PROTECTION CONSIDERATIONS BY WHICH THE FEDERAL
GOVERNMENT, BOLLING V. SHARPE, 347 U.S. 497, AS WELL AS THE STATES, ARE
BOUND. 

THE POLITICAL PROCESSES /4/  RATHER THAN EQUAL PROTECTION LITIGATION
ARE THE ULTIMATE SOLUTION OF THE PRESENT PROBLEM.  BUT IN THE SETTING
OF THIS CASE THE INVIDIOUS DISCRIMINATION AGAINST THE POOR, HARPER V.
VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663, NOT THE RIGHT TO TRAVEL
INTERSTATE, IS IN MY VIEW THE CRITICAL ISSUE. 

        APPENDIX TO OPINION OF DOUGLAS, J. GOURMAND AND FOOD--A

   FABLE  /5/ 

THE PEOPLE OF GOURMAND LOVED GOOD FOOD.  THEY ATE IN GOOD
RESTAURANTS, DONATED MONEY FOR COOKING RESEARCH, AND INSTRUCTED THEIR
GOVERNMENT TO SAFEGUARD ALL MATTERS HAVING TO DO WITH FOOD.  LONG AGO,
THE FOOD INDUSTRY HAD BEEN IN TOTAL CHAOS.  THERE WERE MANY
RESTAURANTS, SOME VERY SMALL.  ANYONE COULD CALL HIMSELF A CHEF OR OPEN
A RESTAURANT.  IN CHOOSING A RESTAURANT, ONE COULD NEVER BE SURE THAT
THE MEAL WOULD BE GOOD.  A COMMISSION OF DISTINGUISHED CHEFS STUDIED
THE SITUATION AND RECOMMENDED THAT NO ONE BE ALLOWED TO TOUCH FOOD
EXCEPT FOR QUALIFIED CHEFS.  "FOOD IS TOO IMPORTANT TO BE LEFT TO
AMATEURS."  THEY SAID.  QUALIFIED CHEFS WERE LICENSED BY THE STATE WITH
SEVERE PENALTIES FOR ANYONE ELSE WHO ENGAGED IN COOKING.  CERTAIN
EXCEPTIONS WERE MADE FOR FOOD PREPARATION IN THE HOME, BUT A PERSON
COULD SERVE ONLY HIS OWN FAMILY.  FURTHERMORE, TO BECOME A QUALIFIED
CHEF, A MAN HAD TO COMPLETE AT LEAST TWENTY-ONE YEARS OF TRAINING
(INCLUDING FOUR YEARS OF COLLEGE, FOUR YEARS OF COOKING SCHOOL, AND ONE
YEAR OF APPRENTICESHIP).  ALL COOKING SCHOOLS HAD TO BE FIRST CLASS. 

THESE REFORMS DID SUCCEED IN RAISING THE QUALITY OF COOKING.  BUT A
RESTAURANT MEAL BECAME SUBSTANTIALLY MORE EXPENSIVE.  A SECOND
COMMISSION OBSERVED THAT NOT EVERYONE COULD AFFORD TO EAT OUT.  "NO
ONE," THEY SAID, "SHOULD BE DENIED A GOOD MEAL BECAUSE OF HIS INCOME." 
FURTHERMORE, THEY ARGUED THAT CHEFS SHOULD WORK TOWARD THE GOAL OF
GIVING EVERYONE "COMPLETE PHYSICAL AND PSYCHOLOGICAL SATISFACTION." 
FOR THOSE PEOPLE WHO COULD NOT AFFORD TO EAT OUT, THE GOVERNMENT
DECLARED THAT THEY SHOULD BE ALLOWED TO DO SO AS OFTEN AS THEY LIKED
AND THE GOVERNMENT WOULD PAY.  FOR OTHERS, IT WAS RECOMMENDED THAT THEY
ORGANIZE THEMSELVES IN GROUPS AND PAY PART OF THEIR INCOME INTO A POOL
THAT WOULD UNDERTAKE TO PAY THE COSTS INCURRED BY MEMBERS IN DINING
OUT.  TO INSURE THE GREATEST SATISFACTION, THE GROUPS WERE SET UP SO
THAT A MEMBER COULD EAT OUT ANYWHERE AND AS AFTEN AS HE LIKED, COULD
HAVE AS ELABORATE A MEAL AS HE DESIRED, AND WOULD HAVE TO PAY NOTHING
OR ONLY A SMALL PERCENTAGE OF THE COST.  THE COST OF JOINING SUCH
PREPAID DINING CLUBS ROSE SHARPLY. 

LONG AGO, MOST RESTAURANTS WOULD HAVE ONE CHEF TO PREPARE THE FOOD. 
A FEW RESTAURANTS WERE MORE ELABORATE, WITH CHEFS SPECIALIZING IN
ROASTING, FISH, SALADS, SAUCES, AND MANY OTHER THINGS.  PEOPLE RARELY
WENT TO THESE ELABORATE RESTAURANTS SINCE THEY WERE SO EXPENSIVE.  WITH
THE ESTABLISHMENT OF PREPAID DINING CLUBS, EVERYONE WANTED TO EAT AT
THESE FANCY RESTAURANTS.  AT THE SAME TIME, YOUNG CHEFS IN SCHOOL
DISDAINED GOING TO COOK IN A SMALL RESTAURANT WHERE THEY WOULD HAVE TO
COOK EVERYTHING.  THE PAY WAS HIGHER AND IT WAS MUCH MORE PRESTIGIOUS
TO SPECIALIZE AND COOK AT A REALLY FANCY RESTAURANT.  SOON THERE WERE
NOT ENOUGH CHEFS TO KEEP THE SMALL RESTAURANTS OPEN. 

WITH PREPAID CLUBS AND FREE MEALS FOR THE POOR, MANY PEOPLE STARTED
EATING THEIR THREE-COURSE MEALS AT THE ELABORATE RESTAURANTS.  THEN
THEY BEGAN TO INCREASE THE NUMBER OF COURSES, DIRECTING THE CHEF TO
"SERVE THE BEST WITH NO THOUGHT FOR THE BILL."  (RECENTLY A 317-COURSE
MEAL WAS SERVED.) 

THE COSTS OF EATING OUT ROSE FASTER AND FASTER.  A NEW GOVERNMENT
COMMISSION REPORTED AS FOLLOWS:  (1) NOTING THAT LICENSED CHEFS WERE
BEING USED TO PEEL POTATOES AND WASH LETTUCE, THE COMMISSION
RECOMMENDED THAT THESE TASKS BE HANDED OVER TO LICENSED DISHWASHERS
(WHOSE THREE YEARS OF DISHWASHING TRAINING INCLUDED COOKING COURSES) OR
TO SOME NEW CATEGORY OF PERSONNEL.  (2) CONCLUDING THAT MANY LICENSED
CHEFS WERE OVERWORKED, THE COMMISSION RECOMMENDED THAT COOKING SCHOOLS
BE EXPANDED, THAT THE LENGTH OF TRAINING BE SHORTENED, AND THAT
APPLICANTS WITH LESSER QUALIFICATIONS BE ADMITTED.  (3) THE COMMISSION
ALSO OBSERVED THAT CHEFS WERE UNHAPPY BECAUSE PEOPLE SEEMED TO BE MORE
CONCERNED ABOUT THE DECOR AND SERVICE THAN ABOUT THE FOOD.  (IN A
RECENT TASTE TEST, NOT ONLY COULD ONE PATRON NOT TELL THE DIFFERENCE
BETWEEN A 1930 AND A 1970 VINTAGE BUT HE ALSO COULD NOT DISTINGUISH
BETWEEN WHITE AND RED WINES.  HE EXPLAINED THAT HE ALWAYS ORDERED THE
1930 VINTAGE BECAUSE HE KNEW THAT ONLY A REALLY GOOD RESTAURANT WOULD
STOCK SUCH AN EXPENSIVE WINE.) 

THE COMMISSION AGREED THAT WEIGHTY PROBLEMS FACED THE NATION.  THEY
RECOMMENDED THAT A NATIONAL PRE-PAYMENT GROUP BE ESTABLISHED WHICH
EVERYONE MUST JOIN.  THEY RECOMMENDED THAT CHEFS CONTINUE TO BE PAID ON
THE BASIS OF THE NUMBER OF DISHES THEY PREPARED.  THEY RECOMMENDED THAT
EVERY GOURMANDESE BE GIVEN THE RIGHT TO EAT ANYWHERE HE CHOSE AND AS
ELABORATELY AS HE CHOSE AND PAY NOTHING. 

THESE RECOMMENDATIONS WERE ADOPTED.  LARGE NUMBERS OF PEOPLE SPENT
ALL OF THEIR TIME ORDERING INCREDIBLY ELABORATE MEALS.  KITCHENS BECAME
MARVELS OF NEW, EXPENSIVE EQUIPMENT.  ALL THOSE WHO WERE NOT CONSUMING
RESTAURANT FOOD WERE IN THE KITCHEN PREPARING IT.  SINCE NO ONE IN
GOURMAND DID ANYTHING EXCEPT PREPARE OR EAT MEALS, THE COUNTRY
COLLAPSED. 

/1/  SEE APPENDIX TO THIS OPINION, POST, P. 274. 

/2/  TITLE 42 CFR 53.111(B)(8) DEFINES THAT TERM TO MEAN "A LEVEL OF
UNCOMPENSATED SERVICES WHICH MEETS A NEED FOR SUCH SERVICES IN THE AREA
SERVED BY AN APPLICANT AND WHICH IS WITHIN THE FINANCIAL ABILITY OF
SUCH APPLICANT TO PROVIDE." 

/3/  THE WAIVER OF SUCH A REQUIREMENT REQUIRES NOTICE AND
OPPORTUNITY FOR PUBLIC HEARING.  42 CFR 53.111(C)(2). 

/4/  FOR THE IMPACT OF "FREE" INDIGENT CARE ON PRIVATE HOSPITALS AND
THEIR PAYING PATIENTS SEE DEPT. OF HEW, MEDICAL RESOURCES AVAILABLE TO
MEET THE NEEDS OF PUBLIC ASSISTANCE RECIPIENTS, HOUSE COMMITTEE ON WASY
AND MEANS, 86TH CONG., 2D SESS. (COMM. PRINT 1961). 

/5/  FOREWORD TO AN ARTICLE ON MEDICAL CARE AND ITS DELIVERY:  AN
ECONOMIC APPRISAL BY JUDITH R. LAVE AND LESTER B. LAVE IN 35 LAW &
CONTEMP.  PROB.  252 (1970). 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE STATE OF ARIZONA PROVIDES FREE MEDICAL CARE FOR INDIGENTS. 
CONFRONTED, IN COMMON WITH ITS 49 SISTER STATES, WITH THE ASSAULT OF
SPIRALING HEALTH AND WELFARE COSTS UPON LIMITED STATE RESOURCES, IT HAS
FELT BOUND TO REQUIRE THAT RECIPIENTS MEET THREE STANDARDS OF
ELIGIBILITY.  /1/  FIRST, THEY MUST BE INDIGENT, UNEMPLOYABLE, OR
UNABLE TO PROVIDE THEIR OWN CARE.  SECOND, THEY MUST BE RESIDENTS OF
THE COUNTY IN WHICH THEY SEEK AID.  THIRD, THEY MUST HAVE MAINTAINED
THEIR RESIDENCE FOR A PERIOD OF ONE YEAR.  THESE STANDARDS, HOWEVER,
APPLY ONLY TO PERSONS SEEKING NONEMERGENCY AID.  AN EXCEPTION IS
SPECIFICALLY PROVIDED FOR "EMERGENCY CASES WHEN IMMEDIATE
HOSPITALIZATION OR MEDICAL CARE IS NECESSARY FOR THE PRESERVATION OF
LIFE OR LIMB . . ." 

APPELLANT EVARO MOVED FROM NEW MEXICO TO ARIZONA IN JUNE 1971,
SUFFERING FROM A "CHRONIC ASTHMATIC AND BRONCHIAL ILLNESS."  IN JULY
1971 HE EXPERIENCED A RESPIRATORY ATTACK, AND OBTAINED TREATMENT AT THE
FACILITIES OF APPELLANT MEMORIAL HOSPITAL, A PRIVATELY OPERATED
INSTITUTION.  THE HOSPITAL SOUGHT TO RECOVER ITS EXPENSES FROM APPELLEE
MARICOPA COUNTY UNDER THE PROVISIONS OF ARIZ. REV. STAT. ANN. 11-297A
(SUPP. 1973-1974), ASSERTING THAT EVARO WAS ENTITLED TO RECEIVE COUNTY
CARE.  SINCE HE DID NOT SATISFY THE ELIGIBILITY REQUIREMENTS DISCUSSED
ABOVE, /2/  APPELLEE DECLINED TO ASSUME RESPONSIBILITY FOR HIS CARE,
AND THIS SUIT WAS THEN INSTITUTED IN THE STATE SUPERIOR COURT. 

APPELLANTS DID NOT, AND COULD NOT, CLAIM THAT THERE IS A
CONSTITUTIONAL RIGHT TO NONEMERGENCY MEDICAL CARE AT STATE OR COUNTY
EXPENSE OR A CONSTITUTIONAL RIGHT TO REIMBURSEMENT FOR CARE EXTENDED BY
A PRIVATE HOSPITAL.  /3/  THEY ASSERTED, HOWEVER, THAT THE STATE
LEGISLATURE, HAVING DECIDED TO GIVE FREE CARE TO CERTAIN CLASSES OF
PERSONS, MUST GIVE THAT CARE TO EVARO AS WELL.  THE COURT UPHOLDS THAT
CLAIM, HOLDING THAT THE ARIZONA ELIGIBILITY REQUIREMENTS BURDENED
EVARO'S "RIGHT TO TRAVEL." 

UNLIKE MANY TRADITIONAL GOVERNMENT SERVICES, SUCH AS POLICE OR FIRE
PROTECTION, THE PROVISION OF HEALTH CARE HAS COMMONLY BEEN UNDERTAKEN
BY PRIVATE FACILITIES AND PERSONNEL.  BUT AS STRAINS ON PRIVATE
SERVICES BECOME GREATER, AND THE COSTS OF OBTAINING CARE INCREASE,
FEDERAL, STATE, AND LOCAL GOVERNMENTS HAVE BEEN PRESSED TO ASSUME A
LARGER ROLE.  REASONABLE ENOUGH, IT SEEMS TO ME, THOSE GOVERNMENTS
WHICH NOW FIND THEMSELVES IN THE HOSPITAL BUSINESS SEEK TO OPERATE THAT
BUSINESS PRIMARILY FOR THOSE PERSONS DEPENDENT ON THE FINANCING
LOCALITY BOTH BY ASSOCIATION AND BY NEED. 

APPELLANTS IN THIS CASE NEVERTHELESS ARGUE THAT THE STATE'S EFFORTS,
ADMIRABLE THOUGH THEY MAY BE, ARE SIMPLY NOT IMPRESSIVE ENOUGH.  BUT
OTHERS EXCLUDED BY ELIGIBILITY REQUIREMENTS CERTAINLY COULD MAKE
SIMILAR PROTESTS.  MARICOPA COUNTY RESIDENTS OF MANY YEARS, PAYING
TAXES TO BOTH CONSTRUCT AND SUPPORT PUBLIC HOSPITAL FACILITIES, MAY BE
INELIGIBLE FOR CARE BECAUSE THEIR INCOMES ARE SLIGHTLY ABOVE THE
MARGINAL LEVEL FOR INCLUSION.  THESE PEOPLE HAVE BEEN EXCLUDED BY THE
STATE, NOT BECAUSE THEIR CLAIM ON LIMITED PUBLIC RESOURCES IS WITHOUT
MERIT, BUT BECAUSE IT HAS BEEN DEEMED LESS MERITORIOUS THAN THE CLAIMS
OF THOSE IN EVEN GREATER NEED.  GIVEN A FINITE AMOUNT OF RESOURCES,
ARIZONA AFTER TODAY'S DECISION MAY WELL CONCLUDE THAT ITS INDIGENCY
THRESHOLD SHOULD BE ELEVATED SINCE ITS COUNTIES MUST PROVIDE FOR OUT-OF
STATE MIGRANTS AS WELL AS FOR RESIDENTS OF LONGER STANDING.  THESE MORE
STRINGENT NEED REQUIREMENTS WOULD THEN DENY CARE TO ADDITIONAL PERSONS
WHO UNTIL NOW WOULD HAVE QUALIFIED FOR AID. 

THOSE PRESENTLY EXCLUDED BECAUSE MARGINALLY ABOVE THE STATE'S
INDIGENCY STANDARDS, THOSE WHO MAY BE EXCLUDED IN THE FUTURE BECASUE OF
MORE STRINGENT INDIGENCY REQUIREMENTS NECESSITATED BY TODAY'S DECISION,
AND APPELLANT EVARO, ALL HAVE A PLAUSIBLE CLAIM TO GOVERNMENT-SUPPORTED
MEDICAL CARE.  THE CHOICE BETWEEN THEM NECESSITATED BY A FINITE AMOUNT
OF RESOURCES IS A CLASSIC EXAMPLE OF THE DETERMINATION OF PRIORITIES TO
BE ACCORDED CONFLICTING CLAIMS, AND WOULD IN THE RECENT PAST HAVE BEEN
THOUGHT TO BE A MATTER PARTICULARLY WITHIN THE COMPETENCE OF THE STATE
LEGISLATURE TO DECIDE.  AS THIS COURT STATED IN DANDRIDGE V. WILLIAMS,
397 U.S. 471, 487 (1970), "THE CONSTITUTION DOES NOT EMPOWER THIS COURT
TO SECOND-GUESS STATE OFFICIALS CHARGED WITH THE DIFFICULT
RESPONSIBILITY OF ALLOCATING LIMITED PUBLIC WELFARE FUNDS AMONG THE
MYRIAD OF POTENTIAL RECIPIENTS." 

THE COURT HOLDS, HOWEVER, THAT THE STATE WAS BARRED FROM MAKING THE
CHOICE IT MADE BECAUSE OF THE BURDEN ITS CHOICE PLACED UPON EVARO'S
"RIGHT TO TRAVEL."  ALTHOUGH THE COURT'S DEFINITION OF THIS "RIGHT" IS
HARDLY PRECISE, THE COURT DOES STATE:  "(THE RIGHT OF INTERSTATE TRAVEL
MUST BE SEEN AS INSURING NEW RESIDENTS THE SAME RIGHT TO VITAL
GOVERNMENT BENEFITS AND PRIVILEGES IN THE STATES TO WHICH THEY MIGRATE
AS ARE ENJOYED BY OTHER RESIDENTS."  THIS RATIONALE MERITS FURTHER
ATTENTION.              II 

THE RIGHT TO TRAVEL THROUGHOUT THE NATION HAS BEEN RECOGNIZED FOR
OVER A CENTURY IN THE DECISIONS OF THIS COURT.  /4/  SEE CRANDALL V.
NEVADA, 6 WALL.  35 (1868).  BUT THE CONCEPT OF THAT RIGHT HAS NOT BEEN
STATIC.  TO SEE HOW DISTANT A COUSIN THE RIGHT TO TRAVEL ENUNCIATED IN
THIS CASE IS TO THE RIGHT DECLARED BY THE COURT IN CRANDALL, REFERENCE
NEED ONLY BE MADE TO THE LANGUAGE OF MR. JUSTICE MILLER, SPEAKING FOR
THE COURT: 

     "BUT IF THE GOVERNMENT HAS THESE RIGHTS ON HER OWN ACCOUNT,
THE

  CITIZEN ALSO HAS CORRELATIVE RIGHTS.  HE HAS THE RIGHT TO COME TO

  THE SEAT OF GOVERNMENT TO ASSERT ANY CLAIM HE MAY HAVE UPON THAT

  GOVERNMENT, OR TO TRANSACT ANY BUSINESS HE MAY HAVE WITH IT.  TO

  SEEK ITS PROTECTION, TO SHARE ITS OFFICES, TO ENGAGE IN

  ADMINISTERING ITS FUNCTIONS.  HE HAS A RIGHT TO FREE ACCESS TO

ITS SEA-PORTS, THROUGH WHICH ALL THE OPERATIONS OF FOREIGN TRADE

  AND COMMERCE ARE CONDUCTED, TO THE SUB-TREASURIES, THE LAND

  OFFICES, THE REVENUE OFFICES AND THE COURTS OF JUSTICE N THE

  SEVERAL STATES, AND THIS RIGHT IS IN ITS NATURE INDEPENDENT OF

  THE WILL OF ANY STATE OVER WHOSE SOIL HE MUST PASS IN THE

  EXERCISE OF IT." 

ID., AT 44. 

THE COURT IN CRANDALL ESTABLISHED NO RIGHT TO FREE BENEFITS FROM EVERY
STATE THROUGH WHICH THE TRAVELER MIGHT PASS, BUT MORE MODESTLY HELD
THAT THE STATE COULD NOT USE ITS TAXING POWER TO IMPEDE TRAVEL ACROSS
ITS BORDERS.  /5/ 

LATER CASES ALSO DEFINED THIS RIGHT TO TRAVEL QUITE CONSERVATIVELY. 
FOR EXAMPLE, IN WILLIAMS V. FEARS, 179 U.S. 270 (1900), THE COURT
UPHELD A GEORGIA STATUTE TAXING "EMIGRANT AGENTS"--PERSONS HIRING LABOR
FOR WORK OUTSIDE THE STATE--ALTHOUGH AGENTS HIRING FOR LOCAL WORK WENT
UNTAXED.  THE COURT RECOGNIZED THAT A RIGHT TO TRAVEL EXISTED,
STATING: 

     "UNDOUBTEDLY THE RIGHT OF LOCOMOTION, THE RIGHT TO REMOVE FROM

  ONE PLACE TO ANOTHER ACCORDING TO INCLINATION, IS AN ATTRIBUTE OF

  PERSONAL LIBERTY, AND THE RIGHT, ORDINARILY, OF FREE TRANSIT FROM

  OR THROUGH THE TERRITORY OF ANY STATE IS A RIGHT SECURED BY THE

  FOURTEENTH AMENDMENT AND BY OTHER PROVISIONS OF THE

  CONSTITUTION."  ID., AT 274. 

THE COURT WENT ON, HOWEVER, TO DECIDE THAT THE STATUTE, DESPITE THE
ADDED COST IT ASSESSED AGAINST EXPORTED LABOR, AFFECTED FREEDOM OF
EGRESS "ONLY INCIDENTALLY AND REMOTELY."  IBID.  /6/ 

THE LEADING EARLIER CASE, EDWARDS V. CALIFORNIA, 314 U.S. 160
(1941), PROVIDES EQUALLY LITTLE SUPPORT FOR THE COURT'S EXPANSIVE
HOLDING HERE.  IN EDWARDS THE COURT INVALIDATED A CALIFORNIA STATUTE
WHICH SUBJECTED TO CRIMINAL PENALTIES ANY PERSON "THAT BRINGS OR
ASSISTS IN BRINGING INTO THE STATE ANY INDIGENT PERSON WHO IS NOT A
RESIDENT OF THE STATE, KNOWING HIM TO BE AN INDIGENT PERSON."  ID., AT
171.  FIVE MEMBERS OF THE COURT FOUND THE STATUTE UNCONSTITUTIONAL
UNDER THE COMMERCE CLAUSE, FINDING IN THE CLAUSE A "PROHIBITION AGAINST
ATTEMPTS ON THE PART OF ANY SINGLE STATE TO ISOLATE ITSELF FROM
DIFFICULTIES COMMON TO ALL OF THEM BY RESTRAINING THE TRANSPORTATION OF
PERSONS AND PROPERTY ACROSS ITS BORDERS."  ID., AT 173.  FOUR
CONCURRING JUSTICES FOUND A BETTER JUSTIFICATION FOR THE RESULT IN THE
FOURTEENTH AMENDMENT'S PROTECTION OF THE "PRIVILEGES OF NATIONAL
CITIZENSHIP."  /7/ 

REGARDLESS OF THE RIGHT'S PRECISE SOURCE AND DEFINITION, IT IS CLEAR
THAT THE STATUTE INVALIDATED IN EDWARDS WAS SPECIFICALLY DESIGNED TO,
AND WOULD, DETER INDIGENT PERSONS FROM ENTERING THE STATE OF
CALIFORNIA.  THE IMPOSITION OF CRIMINAL PENALTIES ON ALL PERSONS
ASSISTING THE ENTRY OF AN INDIGENT SERVED TO BLOCK INGRESS AS SURELY AS
IF THE STATE HAD POSTED GUARDS AT THE BORDER TO TURN INDIGENTS AWAY. 
IT MADE NO DIFFERENCE TO THE OPERATION OF THE STATUTE THAT THE
INDIGENT, ONCE INSIDE THE STATE, WOULD BE SUPPORTED BY FEDERAL
PAYMENTS.  /8/  FURTHERMORE, THE STATUTE DID NOT REQUIRE THAT THE
INDIGENT INTEND TO TAKE UP CONTINUOUS RESIDENCE WITHIN THE STATE.  THE
STATUTE WAS NOT THEREFORE AN INCIDENTAL OR REMOTE BARRIER TO MIGRATION,
BUT WAS IN FACT AN EFFECTIVE AND PURPOSEFUL ATTEMPT TO INSULATE THE
STATE FROM INDIGENTS. 

THE STATUTE IN THE PRESENT CASE RAISES NO COMPARABLE BARRIER. 
ADMITTEDLY, SOME INDIGENT PERSONS DESIRING TO RESIDE IN ARIZONA MAY
CHOOSE TO WEIGH THE POSSIBLE DETRIMENT OF PROVIDING THEIR OWN
NONEMERGENCY HEALTH CARE DURING THE FIRST YEAR OF THEIR RESIDENCE
AGAINST THE TOTAL BENEFITS TO BE GAINED FROM CONTINUING LOCATION WITHIN
THE STATE, BUT THEIR MERE ENTRY INTO THE STATE DOES NOT INVOKE CRIMINAL
PENALTIES.  TO THE CONTRARY, INDIGENTS ARE FREE TO LIVE WITHIN THE
STATE, TO RECEIVE WELFARE BENEFITS NECESSARY FOR FOOD AND SHELTER, /9/
AND TO RECEIVE FREE EMERGENCY MEDICAL CARE IF NEEDED.  FURTHERMORE,
ONCE THE INDIGENT HAS SETTLED WITHIN A COUNTY FOR A YEAR, HE BECOMES
ELIGIBLE FOR FULL MEDICAL CARE AT COUNTY EXPENSE.  TO SAY, THEREFORE,
THAT ARIZONA'S TREATMENT OF INDIGENTS COMPARES WITH CALIFORNIA'S
TREATMENT DURING THE 1930'S WOULD BORDER ON THE FRIVOLOUS. 

SINCE THOSE OLDER CASES DISCUSSING THE RIGHT TO TRAVEL ARE UNHELPFUL
TO EVARO'S CAUSE HERE, RELIANCE MUST BE PLACED ELSEWHERE.  A CAREFUL
READING OF THE COURT'S OPINION DISCLOSES THAT THE DECISION RESTS ALMOST
ENTIRELY ON TWO CASES OF RECENT VINTAGE:  SHAPIRO V. THOMPSON, 394 U.S.
618 (1969), AND DUNN V. BLUMSTEIN, 405 U.S. 330 (1972).  IN SHAPIRO THE
COURT STRUCK DOWN STATUTES REQUIRING ONE YEAR'S RESIDENCE PRIOR TO
RECEIVING WELFARE BENEFITS.  IN DUNN THE COURT STRUCK DOWN A STATUTE
REQUIRING A YEAR'S RESIDENCE BEFORE RECEIVING THE RIGHT TO VOTE.  IN
PLACING RELIANCE ON THESE TWO CASES, THE COURT MUST NECESSARILY
DISTINGUISH OR DISCREDIT RECENT CASES OF THIS COURT UPHOLDING STATUTES
REQUIRING A YEAR'S RESIDENCE FOR LOWER IN-STATE TUITION.  /10/  THE
IMPORTANT QUESTION FOR THIS PURPOSE, ACCORDING TO THE COURT'S ANALYSIS,
IS WHETHER A CLASSIFICATION "'OPERATES TO PENALIZE THOSE PERSONS . . .
WHO HAVE EXERCISED THEIR CONSTITUTIONAL RIGHT OF INTERSTATE
MIGRATION.'"  (EMPHASIS IN COURT'S OPINION.) 

SINCE THE COURT CONCEDES THAT "SOME 'WAITING-PERIODS) . . . MAY NOT
BE PENALTIES.'"  ANTE, AT 258 - 259, ONE WOULD EXPECT TO LEARN FROM THE
OPINION HOW TO DISTINGUISH A WAITING PERIOD WHICH IS A PENALTY FROM ONE
WHICH IS NOT.  ANY EXPENSE IMPOSED ON CITIZENS CROSSING STATE LINES BUT
NOT IMPOSED ON THOSE STAYING PUT COULD THEORETICALLY BE DEEMED A
PENALTY ON TRAVEL; THE TOLL EXACTED FROM PERSONS CROSSING FROM DELAWARE
TO NEW JERSEY BY THE DELAWARE MEMORIAL BRIDGE IS A "PENALTY" ON
INTERSTATE TRAVEL IN THE MOST LITERAL SENSE OF ALL.  BUT SUCH CHARGES,
/11/  AS WELL AS OTHER FEES FOR USE OF TRANSPORTATION FACILITIES SUCH
AS TAXES ON AIRPORT USERS, /12/  HAVE BEEN UPHELD BY THIS COURT AGAINST
ATTACKS BASED UPON THE RIGHT TO TRAVEL.  IT SEEMS TO ME THAT THE LINE
TO BE DERIVED FROM OUR PRIOR CASES IS HAT SOME FINANCIAL IMPOSITIONS ON
INTERSTATE TRAVELERS HAVE SUCH INDIRECT OR INCONSEQUENTIAL IMPACT ON
TRAVEL THAT THEY SIMPLY DO NOT CONSTITUTE THE TYPE OF DIRECT PURPOSEFUL
BARRIERS STRUCK DOWN IN EDWARDS AND SHAPIRO.  WHERE THE IMPACT IS THAT
REMOTE, A STATE CAN REASONABLE REQUIRE THAT THE CITIZEN BEAR SOME
PROPORTION OF THE STATE'S COST IN ITS FACILITIES.  I WOULD THINK THAT
THIS STANDARD IS NOT ONLY SUPPORTED BY THIS COURT'S DECISIONS, BUT
WOULD BE EMINENTLY SENSIBLE AND WORKABLE.  BUT THE COURT NOT ONLY
REJECTS THIS APPROACH, IT LEAVES US ENTIRELY WITHOUT GUIDANCE AS TO THE
PROPER STANDRAD TO BE APPLIED. 

THE COURT INSTEAD RESORTS TO IPSE DIXIT, DECLARING RATHER THAN
DEMONSTRATING THAT THE RIGHT TO NONEMERGENCY MEDICAL CARE IS WITHIN THE
CLASS OF RIGHTS PROTECTED BY SHAPIRO AND DUNN: 

     "WHATEVER THE ULTIMATE PARAMETERS OF THE SHAPIRO PENALTY

  ANALYSIS, IT IS AT LEAST CLEAR THAT MEDICAL CARE IS AS MUCH 'A

  BASIC NECESSITY OF LIFE' TO AN INDIGENT AS WELFARE ASSISTANCE. 

AND, GOVERNMENTAL PRIVILEGES OR BENEFITS NECESSARY TO BASIC

  SUSTENANCE HAVE OFTEN BEEN VIEWED AS BEING OF GREATER

  CONSTITUTIONAL SIGNIFICANCE THAN LESS ESSENTIAL FORMS OF

  GOVERNMENTAL ENTITLEMENTS.  SEE, E.G., SHAPIRO, SUPRA; GOLDBERG

  V. KELLY, 397 U.S. 254, 264 (1970); SNIADACH V. FAMILY FINANCE

  CORP., 395 U.S. 337, 340 - 342 (1969)."  ANTE, AT 259.  (EMPHASIS

  ADDED; FOOTNOTES OMITTED.) 

HOWEVER CLEAR THIS CONCLUSION MAY BE TO THE MAJORITY, IT IS CERTAINLY
NOT CLEAR TO ME.  THE SOLICITUDE WHICH THE COURT HAS SHOWN IN CASES
INVOLVING THE RIGHT TO VOTE, /13/  AND THE VIRTUAL DENIAL OF ENTRY
INHERENT IN DENIAL OF WELFARE BENEFITS--"THE VERY MEANS BY WHICH TO
LIVE," GOLDBERG V. KELLY, 397 U.S. 254, 264 (1970)--OUGHT NOT BE SO
CASUALLY EXTENDED TO THE ALLEGED DEPRIVATION HERE.  RATHER, THE COURT
SHOULD EXAMINE, AS IT HAS DONE IN THE PAST, WHETHER THE CHALLENGED
REQUIREMENT ERECTS A REAL AND PURPOSEFUL BARRIER TO MOVEMENT, OR THE
THREAT OF SUCH A BARRIER, OR WHETHER THE EFFECTS ON TRAVEL, VIEWED
REALISTICALLY, ARE MERELY INCIDENTAL AND REMOTE.  AS THE ABOVE
DISCUSSION HAS SHOWN, THE BARRIER HERE IS HARDLY A COUNTERPART TO THE
BARRIERS CONDEMNED IN EARLIER CASES.  THAT BEING SO, THE COURT SHOULD
OBSERVE ITS TRADITIONAL RESPECT FOR THE STATE'S ALLOCATION OF ITS
LIMITED FINANCIAL RESOURCES RATHER THAN UNJUSTIFIABLY IMPOSING ITS OWN
PREFERENCES. 

        III 

THE COURT, IN ITS EXAMINATION OF THE PROFFERED STATE INTERESTS,
CATEGORICALLY REJECTS THE CONTENTION THAT THOSE WHO HAVE RESIDED IN THE
COUNTY FOR A FIXED PERIOD OF TIME MAY HAVE A GREATER STAKE IN COMMUNITY
FACILITIES THAN THE NEWLY ARRIVED.  BUT THIS REJECTION IS ACCOMPLISHED
MORE BY FIAT THAN BY REASON.  ONE OF THE PRINCIPAL FACTUAL DISTINCTIONS
BETWEEN STARNS V. MALKERSON, 326 F.SUPP.  234 (MINN. 1970), AFF'D, 401
U.S. 985 (1971), AND VLANDIS V. KLINE, 412 U.S. 441 (1973), BOTH OF
WHICH UPHELD DURATIONAL RESIDENCE REQUIREMENTS FOR IN-STATE UNIVERSITY
TUITION, /14/  AND SHAPIRO, WHICH STRUCK THEM DOWN FOR WELFARE
RECIPIENTS, IS THE NATURE OF THE AID WHICH THE STATE OR COUNTY
PROVIDES.  WELFARE BENEFITS, WHETHER IN CASH OR IN KIND, ARE COMMONLY
FUNDED FROM CURRENT TAX REVENUES, WHICH MAY WELL BE SUPPORTED BY THE
VERY NEWEST ARRIVAL AS WELL AS BY THE LONGTIME RESIDENT.  BUT
UNIVERSITIES AND HOSPITALS, ALTHOUGH DEMANDING OPERATING SUPPORT FROM
CURRENT REVENUES, REQUIRE EXTENSIVE CAPITAL FACILITIES WHICH CANNOT
POSSIBLY BE FUNDED OUT OF CURRENT TAX REVENUES.  THUS, ENTIRELY APART
FROM THE MAJORITY'S COMCEPTION OF WHETHER NONEMERGENCY HEALTH CARE IS
MORE OR LESS IMPORTANT THAN CONTINUED EDUCATION, THE INTEREST OF LONGER
ESTABLISHED RESIDENTS IN CAPITAL FACILITIES AND THEIR GREATER FINANCIAL
CONTRIBUTION TO THE CONSTRUCTION OF SUCH FACILITIES SEEMS
INDISPUTABLE.  /15/ 

OTHER INTERESTS ADVANCED BY THE STATE TO SUPPORT ITS STATUTORY
ELIGIBILITY CRITERIA ARE ALSO REJECTED VIRTUALLY OUT OF HAND BY THE
COURT.  THE PROTECTION OF THE COUNTY ECONOMIES IS DISMISSED WITH THE
STATEMENT THAT "(THE CONSERVATION OF THE TAXPAYERS' PURSE IS SIMPLY NOT
A SUFFICIENT STATE INTEREST . . ."  /16/  THE COURT POINTS OUT THAT THE
COST OF CARE, IF NOT BORNE BY THE GOVERNMENT, MAY BE BORNE BY PRIVATE
HOSPITALS SUCH AS APPELLANT MEMORIAL HOSPITAL.  WHILE THIS OBSERVATION
IS DOUBTLESS TRUE IN LARGE PART, AND IS BOUND TO PRESENT A PROBLEM TO
ANY PRIVATE HOSPITAL, IT DOES NOT SEEM TO ME THAT IT THUS BECOMES A
CONSTITUTIONAL DETERMINANT.  THE COURT ALSO OBSERVES THAT THE STATE MAY
IN FACT SAVE MONEY BY PROVIDING NONEMERGENCY MEDICAL CARE RATHER THAN
WAITING FOR DETERIORATION OF AN ILLNESS.  HOWEVER VALUABLE A QUALIFIED
COST ANALYSIS MIGHT BE TO LEGISLATORS DRAFTING ELIGIBILITY
REQUIREMENTS, AND HOWEVER LITTLE THIS SPECULATION MAY BEAR ON EVARO'S
CONDITION (WHICH THE RECORD DOES NOT INDICATE TO HAVE BEEN A
DETERIORATING ILLNESS), THIS SORT OF JUDGMENT HAS TRADITIONALLY BEEN
CONFIDED TO LEGISLATURES, RATHER THAN TO COURTS CHARGED WITH
DETERMINING CONSTITUTIONAL QUESTIONS. 

THE COURT LIKEWISE REJECTS ALL ARGUMENTS BASED ON ADMINISTRATIVE
OBJECTIVES.  REFUSING TO ACCEPT THE ASSERTION THAT A ONE-YEAR WAITING
PERIOD IS A "CONVENIENT RULE OF THUMB TO DETERMINE BONA FIDE
RESIDENCE," THE MAJORITY SIMPLY SUGGESTS ITS OWN ALTERNATIVES.  SIMILAR
ANALYSIS IS APPLIED IN REJECTING THE APPELLEES'  ARGUMENT BASED ON THE
POTENTIAL FOR FRAUD.  THE COURT'S DECLARATION THAT AN INDIGENT
APPLICANT "INTENT ON COMMITTING FRAUD, COULD AS EASILY SWEAR TO HAVING
BEEN A RESIDENT OF THE COUNTY FOR THE PRECEDING YEAR AS TO BEING ONE
CURRENTLY"  IGNORES THE OBVIOUS FACT THAT FABRICATING PRESENCE IN THE
STATE FOR A YEAR IS SURELY MORE DIFFICULT THAN FABRICATING ONLY A
PRESENT INTENTION TO REMAIN. 

THE LEGAL QUESTION IN THIS CASE IS SIMPLY WHETHER THE STATE OF
ARIZONA HAS ACTED ARBITRARILY IN DETERMINING THAT ACCESS TO LOCAL
HOSPITAL FACILITIES FOR NONEMERGENCY MEDICAL CARE SHOULD BE DENIED TO
PERSONS UNTIL THEY HAVE ESTABLISHED RESIDENCE FOR ONE YEAR.  THE
IMPEDIMENT WHICH THIS QUITE RATIONAL DETERMINATION HAS PLACED ON
APPELLANT EVARO'S "RIGHT TO TRAVEL" IS SO REMOTE AS TO BE NEGLIGIBLE:
SO FAR AS THE RECORD INDICATES EVARO MOVED FROM NEW MEXICO TO ARIZONA
THREE YEARS AGO AND HAS REMAINED EVER SINCE.  THE ELIGIBILITY
REQUIREMENT HAS NOT THE SLIGHTEST RESEMBLANCE TO THE ACTUAL BARRIERS TO
THE RIGHT OF FREE INGRESS AND EGRESS PROTECTED BY THE CONSTITUTION, AND
STRUCK DOWN IN CASES SUCH AS CRANDALL AND EDWARDS.  AND, UNLIKE
SHAPIRO, IT DOES NOT INVOLVE AN URGENT NEED FOR THE NECESSITIES OF LIFE
OR A BENEFIT FUNDED FROM CURRENT REVENUES TO WHICH THE CLAIMANT MAY
WELL HAVE CONTRIBUTED.  IT IS A SUBSTANTIAL BROADENING OF, AND
DEPARTURE FROM, ALL OF THESE HOLDINGS, ALL THE MORE REMARKABLE FOR THE
LACK OF EXPLANATION WHICH ACCOMPANIES THE RESULT.  SINCE I CAN
SUBSCRIBE NEITHER TO THE METHOD NOR THE RESULT, I DISSENT.     /1/
ARIZ. REV. STAT. ANN. PARA. 11 - 297A (SUPP. 1973 - 1974) READS AS
FOLLOWS: 

     "EXCEPT IN EMERGENCY CASES WHEN IMMEDIATE HOSPITALIZATION OR

  MEDICAL CARE IS NECESSARY FOR THE PRESERVATION OF LIFE OR LIMB NO

  PERSON SHALL BE PROVIDED HOSPITALIZATION, MEDICAL CARE OR

  OUTPATIENT RELIEF UNDER THE PROVISIONS OF THIS ARTICLE WITHOUT

  FIRST FILING WITH A MEMBER OF THE BOARD OF SUPERVISORS OF THE

  COUNTY IN WHICH HE RESIDES A STATEMENT IN WRITING, SUBSCRIBED AND

  SWORN TO UNDER OATH, THAT HE IS AN INDIGENT AS SHALL BE DEFINED

  BY RULES AND REGULATIONS OF THE STATE DEPARTMENT OF ECONOMIC

  SECURITY, AN UNEMPLOYABLE TOTALLY DEPENDENT UPON THE STATE OR

  COUNTY GOVERNMENT FOR FINANCIAL SUPPORT, OR AN EMPLOYABLE OF

  SWORN LOW INCOME WITHOUT SUFFICIENT FUNDS TO PROVIDE HIMSELF

  NECESSARY HOSPITALIZATION AND MEDICAL CARE, AND THAT HE HAS BEEN

  A RESIDENT OF THE COUNTY FOR THE PRECEDING TWELVE MONTHS." 

/2/  THE PARTIES STIPULATED THAT MR. EVARO WAS "AN INDIGENT WHO
RECENTLY CHANGED HIS RESIDENCE FROM NEW MEXICO TO ARIZONA AND WHO HAS
RESIDED IN THE STATE OF ARIZONA FOR LESS THAN TWELVE MONTHS."  APP.
10.  THEREFORE, MR. EVARO FAILED TO MEET ONLY THE THIRD REQUIREMENT
DISCUSSED IN THE TEST. 

/3/  THIS COURT HAS NOTED THAT CITIZENS HAVE NO CONSTITUTIONAL RIGHT
TO WELFARE BENEFITS.  SEE, E.G., DANDRIDGE V. WILLIAMS, 397 U.S. 471
(1970); SAN ANTONIO INDEPENDENT SCHOOL DIST. V. RODRIGUEZ, 411 U.S. 1,
33 (1973). 

/4/  ALTHOUGH THE RIGHT TO TRAVEL HAS BEEN RECOGNIZED BY THIS COURT
FOR OVER A CENTURY, THE ORIGIN OF THE RIGHT STILL REMAINS SOMEWHAT
OBSCURE.  THE MAJORITY OPINION IN THIS CASE MAKES NO EFFORT TO IDENTIFY
THE SOURCE, SIMPLY RELYING ON RECENT CASES WHICH STATE SUCH A RIGHT
EXISTS. 

/5/  THE TAX LEVIED BY THE STATE OF NEVADA WAS UPON EVERY PERSON
LEAVING THE STATE.  AS THIS COURT HAS SINCE NOTED, THE TAX WAS A DIRECT
TAX ON TRAVEL AND WAS NOT INTENDED TO BE A CHARGE FOR THE USE OF STATE
FACILITIES.  SEE EVANSVILLE AIRPORT V. DELTA AIRLINES, 405 U.S. 707
(1972). 

/6/  THE COURT ALSO REJECTED AN EQUAL PROTECTION ARGUMENT,
CONCLUDING:  "WE ARE UNABLE TO SAY THAT SUCH A DISCRIMINATION, IF IT
EXISTED, DID NOT REST ON REASONABLE GROUNDS, AND WAS NOT WITHIN THE
DISCRETION OF THE STATE LEGISLATURE."  179 U.S., AT 276. 

/7/  SEE THE CONCURRING OPINIONS OF MR. JUSTICE DOUGLAS (WITH WHOM
MR. JUSTICE BLACK AND MR. JUSTICE MURPHY JOINED), 314 U.S., AT 177, AND
MR. JUSTICE JACKSON, ID., AT 181. 

/8/  THE COURT IN EDWARDS OBSERVED:  "AFTER ARRIVING IN CALIFORNIA
(THE INDIGENT) WAS AIDED BY THE FARM SECURITY ADMINISTRATION, WHICH . .
. IS WHOLLY FINANCED BY THE FEDERAL GOVERNMENT."  314 U.S., AT 175. 
THE COURT DID NOT EXPRESS A VIEW AT THAT TIME AS TO WHETHER A DIFFERENT
RESULT WOULD HAVE BEEN REACHED IF THE STATE BORE THE FINANCIAL BURDEN. 
BUT CF. SHAPIRO V. THOMPSON, 394 U.S. 618 (1969). 

/9/  SEE ARIZ. REV.  STAT. ANN. PARA. 46 - 233 (SUPP. 2973 - 1974),
WHICH PROVIDES THAT AN ELIGIBLE RECIPIENT OF GENERAL ASSISTANCE MUST
HAVE "ESTABLISHED RESIDENCE AT THE TIME OF APPLICATION." 

/10/  SEE STARNS V. MALKERSON, 326 F.SUPP.  234 (MINN. 1970), AFF'D,
401 U.S. 985 (1971); VLANDIS V. KLINE, 412 U.S. 441 (1973). 

/11/  SEE, E.G., INTERSTATE BUSSES CORP. V. BLODGETT, 276 U.S. 245
(1928); HENDRICK V. MARYLAND, 235 U.S. 610 (1915). 

/12/  SEE EVANSVILLE AIRPORT V. DELTA AIRLINES, 405 U.S. 707
(1972). 

/13/  SEE, E.G., EVANS V. CORNMAN, 398 U.S. 419 (1970); CIPRIANO V.
CITY OF HOUMA, 395 U.S. 701 (1969). 

/14/  IN VLANDIS, WHILE STRIKING DOWN A CONNECTICUT STATUTE THAT IN
EFFECT PREVENTED A NEW STATE RESIDENT FROM OBTAINING LOWER TUITION
RATES FOR THE FULL PERIOD OF ENROLLMENT, WE STATED THAT THE DECISION
SHOULD NOT "BE CONSTRUED TO DENY A STATE THE RIGHT TO IMPOSE ON A
STUDENT, AS ONE ELEMENT IN DEMONSTRATING BONA FIDE RESIDENCE, A
REASONABLE DURATIONAL RESIDENCY REQUIREMENT, WHICH CAN BE MET WHILE IN
STUDENT STATUS."  412 U.S., AT 452.  STARNS WAS CITED AS SUPPORT FOR
THIS POSITION. 

/15/  THIS DISTINCTION MAY BE PARTICULARLY IMPORTANT IN A STATE SUCH
AS ARIZONA WHERE THE CONSTITUTION PROVIDES FOR LIMITATIONS ON STATE AND
COUNTY DEBT.  SEE ARIZ. CONST., ART. 9, PARA. 5 (STATE); ART. 9, PARA.
8 (COUNTY).  SEE GENERALLY COMMENT, DULLING THE EDGE OF HUSBANDRY:  THE
SPECIAL FUND DOCTRINE IN ARIZONA, 1971 L. & SOC. O. (ARIZ. ST. L.J.) 
555. 

/16/  THE APPELLEES IN THIS CASE FILED AN AFFIDAVIT INDICATING THAT
ACCEPTANCE OF APPELLANTS' POSITION WOULD IMPOSE AN ADDED BURDEN ON
PROPERTY TAXPAYERS IN MARICOPA COUNTY OF OVER 2.5 MILLION DOLLARS IN
THE FIRST YEAR ALONG.  APP. 12 - 17. 

MARY M. SCHROEDER ARGUED THE CAUSE FOR APPELLANTS.  WITH HER ON THE
BRIEF WAS JOHN P. FRANK. 

WILLIAM J. CARTER III ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLEES. 
..END :






MISSISSIPPI V. ARKANSAS, 415 U.S. 289 


       ON EXCEPTIONS TO SPECIAL MASTER'S REPORT

NO. 48, ORIG.  ARGUED DECEMBER 5, 1973--DECIDED FEBRUARY 26,

           1974 


    IN THIS BOUNDARY DISPUTE BETWEEN ARKANSAS AND MISSISSIPPI OVER

  AN AREA KNOWN AS LUNA BAR IN THE ABANDONED BED OF THE MISSISSIPPI

  RIVER BETWEEN THE UPSTREAM AND DOWNSTREAM ENDS OF TARPLEY

  CUT-OFF, WHERE ARKANSAS'  CHICOT COUNTY AND MISSISSIPPI'S

  WASHINGTON COUNTY ADJOIN, THE REPORT OF THE SPECIAL MASTER IS

  ADOPTED, IN WHICH HE FOUND THAT LUNA BAR WAS FORMED BY ACCRETION

  RESULTING FROM THE GRADUAL WESTWARD MOVEMENT OF THE MISSISSIPPI

  RIVER, AND IS THEREFORE PART OF THE STATE OF MISSISSIPPI, AND NOT

BY AVULSIVE PROCESS AS CLAIMED BY ARKANSAS.  PP. 291 - 294. 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION,

  POST, P. 294. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

MISSISSIPPI, PROMPTED BY THE PENDENCY OF PRIVATE TITLE LITIGATION IN
THE ARKANSAS COURTS, /1/  INSTITUTED THIS ORIGINAL ACTION AGAINST
ARKANSAS IN NOVEMBER 1970.  THE BILL OF COMPLAINT, WHICH ACCOMPANIED
THE MOTION FOR LEAVE TO FILE, PRAYED THAT THE BOUNDARY LINE BETWEEN THE
TWO STATES, IN THE OLD BED OF THE MISSISSIPPI RIVER FROM THE UPSTREAM
END TO THE DOWNSTREAM END OF TARPLEY CUT-OFF, THAT IS, THE SPANISH MOSS
BEND-LUNA BAR-CARTER POINT AREA WHERE ARKANSAS' CHICOT COUNTY AND
MISSISSIPPI'S WASHINGTON COUNTY ADJOIN, BE FIXED AND DETERMINED. 

THE RIVER WAS ORIGINALLY ESTABLISHED AS THE BOUNDARY BETWEEN THE
STATES BY THEIR RESPECTIVE ACTS OF ADMISSION.  MISSISSIPPI'S ACT, 3
STAT. 348 (1817), DESCRIBED THE LINE AS "UP" THE RIVER.  /2/  ARKANSAS'
ACT, 5 STAT. 50 (1836), DESCRIBED THE LINE AS "UP THE MIDDLE OF THE
MAIN CHANNEL OF THE SAID RIVER."  SEE, ALSO, ARKANSAS' CONSTITUTION,
ART. 1 (1874).  OVER 50 YEARS AGO THE QUESTION WHETHER THERE WAS ANY
DIFFERENCE IN THE MEANING OF THESE TWO DESCRIPTIONS WAS RESOLVED AND
THE BOUNDARY WAS DETERMINED TO BE "THE MIDDLE OF THE MAIN NAVIGABLE
CHANNEL, AND NOT ALONG THE LINE EQUIDISTANT BETWEEN THE BANKS." 
ARKANSAS V. MISSISSIPPI, 250 U.S. 39, 43 (1919).  THAT DECISION WAS IN
CONFORMITY WITH THE RULE OF THE THALWEG ENUNCIATED IN IOWA V. ILLINOIS,
147 U.S. 1, 7 - 8, 13 (1893), AND FOLLOWED, IN THE ABSENCE OF SPECIAL
CIRCUMSTANCES, IN MANY SUBSEQUENT CASES.  SEE, FOR EXAMPLE, MINNESOTA
V. WISCONSIN, 252 U.S. 273, 281 - 282 (1920); NEW JERSEY V. DELAWARE,
291 .S.  U.361, 379 - 380 (1934); ARKANSAS V. TENNESSEE, 310 U.S. 563,
571 (1940). 

ARKANSAS RESPONDED TO MISSISSIPPI'S MOTION AND MOVED THAT LEAVE TO
FILE BE DENIED AND THAT THE COMPLAINT BE DISMISSED.  THE MOTION FOR
LEAVE TO FILE, HOWEVER, WAS GRANTED.  400 U.S. 1019 (1971). 
THEREAFTER, THE HONORABLE CLIFFORD O'SULLIVAN WAS APPOINTED SPECIAL
MASTER.  402 U.S. 926 (1971).  THE MASTER'S REPORT EVENTUALLY ISSUED
AND WAS ORDERED FILED.  411 U.S. 913 (1973).  /3/  ARKANSAS' EXCEPTIONS
TO THE REPORT AND MISSISSIPPI'S RESPONSE TO THOSE EXCEPTIONS WERE
FORTHCOMING IN DUE COURSE AND THE CASE HAS BEEN ARGUED TO THIS COURT. 

PRIOR TO 1935 SPANISH MOSS BEND WAS ON THE THALWEG, OR PRIMARY
CHANNEL, OF THE MISSISSIPPI RIVER.  IT HAS NOT BEEN THE THALWEG,
HOWEVER, SINCE THE TARPLEY CUT-OFF WAS ESTABLISHED ABOUT FIVE MILES TO
THE EAST IN 1935 BY THE UNITED STATES ARMY CORPS OF ENGINEERS.  THE
PRESENT CONTROVERSY FOCUSES ON WHAT IS KNOWN AS LUNA BAR ON THE EASTERN
BANK OF THE OLD RIVER AT SPANISH MOSS BEND.  THE ISSUE SIMPLY IS
WHETHER LUNA BAR CAME INTO BEING BY GRADUAL MIGRATION OF THE RIVER
WESTWARD, OR, INSTEAD, BY SOME AVULSIVE PROCESS, ALSO TO THE WESTWARD. 
DEPENDING ON THE RESOLUTION OF THIS FACTUAL ISSUE, LEGAL CONSEQUENCES
ENSUE IN LINE WITH ESTABLISHED PRINCIPLES CONCEDED BY THE TWO STATES TO
BE THE LAW RELATING TO RIPARIAN ACCRETION AND AVULSION.  NEBRASKA V.
IOWA, 143 U.S. 359 (1892); MISSOURI V. NEBRASKA, 196 U.S. 23 (1904);
BONELLI CATTLE CO. V. ARIZONA, 414 U.S. 313, 325 - 327 (1973).  THESE
PRINCIPLES NEED NO REITERATION HERE.  IT SUFFICES TO SAY THAT IF LUNA
BAR WAS FORMED BY ACCRETION, THIS LITIGATION IS TO BE RESOLVED IN FAVOR
OF MISSISSIPPI, AND, CONTRARILY, IF LUNA BAR RESULTED FROM AN AVULSION,
THE SUIT IS TO BE RESOLVED IN FAVOR OF ARKANSAS. 

UPON OUR INDEPENDENT REVIEW OF THE RECORD, WE FIND OURSELVES IN
COMPLETE AGREEMENT AND ACCORD WITH THE FINDINGS OF FACT MADE BY THE
SPECIAL MASTER.  /4/  REPORT 34.  WE THEREFORE AFFIRM THOSE FINDINGS,
OVERRULE ARKANSAS' EXCEPTIONS TO THE MASTER'S REPORT, CONFIRM THAT
REPORT, AND IN GENERAL ACCEPT THE MASTER'S RECOMMENDATIONS FOR A
DECREE. 

WE DEEM IT UNNECESSARY TO OUTLINE AT LENGTH THE EVIDENCE ADDUCED, OR
TO REPRODUCE HERE THE DETAILED ANALYSIS OF THAT EVIDENCE MADE BY THE
SPECIAL MASTER.  WE NOTE ONLY THAT THE DISSENT WOULD REGARD THE CASE AS
CLOSE BECAUSE OF THREE FACTORS:  (1) CERTAIN TESTIMONY AS TO ANCIENT
TREES ON LUNA BAR INDICATED BY THE PRESENCE OF THREE STUMPS THAT COULD
NOT HAVE LIVED AND DIED THERE IN THE LAST 100 YEARS, (2) SOME TESTIMONY
AS TO SOIL ON THE BAR "NOT COMPATIBLE WITH THE SOIL THAT WOULD RESULT
FROM ACCRETION," POST, AT 298, AND (3) THE BAR'S "HARD CORE . . .
ELEVATION," POST, AT 299 - 300, THAT COINCIDES WITH THE ELEVATION "ON
THE ADJACENT ARKANSAS BANK."  THESE FACTORS, IN OUR VIEW, WOULD BE
PERTINENT EXCEPT THAT THEY REFLECT ONLY THE APPROACH AND TESTIMONY OF
ARKANSAS' WITNESSES AND OVERLOOK PERTINENT AND PERSUASIVE TESTIMONY TO
THE OPPOSITE EFFECT FROM EXPERT WITNESSES FOR MISSISSIPPI.  THE LATTER
ARE THE WITNESSES THAT THE SPECIAL MASTER CREDITED, AS DO WE, IN THE
EVALUATION OF THE CONFLICTING TESTIMONY. 

ARKANSAS CONCEDED THAT MISSISSIPPI MADE OUT A PRIMA FACIE CASE OF
ACCRETION.  TR. OF ORAL ARG. 19.  IN ADDITION, THE MASTER WAS IMPRESSED
WITH THE TOTAL ABSENCE OF ANY KNOWN HISTORICAL REFERENCE TO AN AVULSION
IN THIS AREA THAT CHANGED THE COURSE OF THE RIVER BY THE NECESSARY HALF
MILE.  AND THE DISSENT ACKNOWLEDGES, POST, AT 295, AS TO HOW
"MISSISSIPPI MADE ITS CASE," AND CONCEDES THAT THE TESTIMONY "GIVES
FORCE TO THE ARGUMENT THAT ACCRETION FORMED LUNA BAR," THAT THERE WAS
TESTIMONY THAT IN THE MISSISSIPPI RIVER "AVULSION WOULD SHORTEN THE
COURSE OF THE RIVER, WHILE HERE THE COURSE WAS LENGTHENED," AND THAT
MISSISSIPPI'S EXPERTS KNEW OF NO INSTANCE "WHERE AVULSION HAD WORKED
THE WAY ARKANSAS CLAIMS." 

SO FAR AS THE ANCIENT TREE STUMPS ARE CONCERNED, MISSISSIPPI
PRESENTED EVIDENCE FROM FORESTRY EXPERTS THAT THE FOREST ON LUNA BAR
WAS ONE PREDOMINANTLY OF PIONEER SPECIES WITH THE EXPECTED SMALL
ACCOMPANYING, SCATTERED AREAS OF SECONDARY AND CLIMAX TREES, AND WITH
NO TREE MORE THAN 37 YEARS OLD.  THIS IS CONSISTENT WITH THE FIRST
APPEARANCE OF GROWTH UPON LUNA BAR DEPICTED IN EARLY MISSISSIPPI RIVER
COMMISSION CHARTS SHOWING THE BAR TO BE BARREN AND WITHOUT VEGETATION. 
REPORT 10.  MISSISSIPPI'S POSITION AS TO THE THREE PARTICULAR STUMPS
WAS THAT THEY HAD BEEN WASHIED IN BY FLOOD WATERS IN PRECEDING YEARS;
THAT ONE HAD MOSS ON ITS ROOTS, A CONDITION INCOMPATIBLE WITH GROWTH IN
PLACE; AND THAT, AT THE POINT WHERE ANOTHER ALLEGEDLY WAS FOUND IN
1972, THE ELEVATION OF THE BAR WAS AT LEAST 10 FEET ABOVE WHAT IT HAD
BEEN 90 YEARS EARLIER.  THUS THE STUMP NECESSARILY SHOULD HAVE BEEN
DEEP IN THE UNDERSOIL OF THE BAR AND NOT ON ITS SURFACE AT THE TIME OF
ITS REMOVAL.  REPORT 11. 

THE SOIL COMPOSITION IS PURELY A MATTER OF CONFLICTING TESTIMONY AND
WE ARE PERSUADED BY MISSISSIPPI'S EVIDENCE.  DEEP BORINGS, OF COURSE,
WOULD BE BELOW THE RIVERBED, AND WOULD BE EXPECTED TO BE CONSISTENT
THROUGHOUT THE AREA ON BOTH SIDES OF THE RIVER.  AND, AS NOTED ABOVE,
CHARTS OF 1882 AND 1894, ADMITTED INTO EVIDENCE, SHOW LUNA BAR AS A DRY
SANDBAR ,WITH NO VEGETATION. 

THE CLAIM OF SIMILAR ELEVATIONS, TOO, ENCOUNTERS STRONG AND
CONVINCING OPPOSING AUTHORITY.  DR. CHARLES R. KOLB, A HIGHLY QUALIFIED
EXPERT FOR MISSISSIPPI, TESTIFIED THAT HIS STUDY DISCLOSED THAT THE
ARKANSAS BANK, FROM THE FIRST COMPARATIVE RECORDINGS UNTIL FAIRLY
RECENT TIMES, WAS ABOUT 12 FEET HIGHER THAN LUNA BAR.  REPORT 15, 19. 
R. 354 - 357.  AND THERE IS AN ABSENCE OF LEVEE FORMATIONS ON LUNA BAR,
AS CONTRASTED WITH THE PRESENCE OF PRE-1860 LEVEES ON THE ARKANSAS
BANK. 

WE AGREE WITH THE SPECIAL MASTER'S EVALUATION OF THE EVIDENCE AND
CONCLUDE, AS HE DID, THAT ARKANSAS DID NOT SUSTAIN ITS BURDEN OF
REBUTTING MISSISSIPPI'S CONCEDED PRIMA FACIE CASE, A BURDEN THE
ARKANSAS COURT HAS DESCRIBED AS "CONSIDERABLE."  PANNELL V. EARLS, 252
ARK. 385, 388, 483 S.W.2D 440, 442 (1972). 

UPON OUR OWN CONSIDERATION AND OUR INDEPENDENT REVIEW OF THE ENTIRE
RECORD, OF THE REPORT FILED BY THE SPECIAL MASTER, OF THE EXCEPTIONS
FILED THERETO, AND OF THE ARGUMENT THEREON, A DECREE IS ACCORDINGLY
ENTERED. 

IT IS SO ORDERED. 

(FOR DECREE ADOPTED AND ENTERED BY THE COURT, SEE POST, P. 302.) 

/1/  SEE ARKANSAS LAND & CATTLE CO. V. ANDERSON-TULLY CO., 248 ARK.
495, 452 S.W.2D 632 (1970), A 4 - 3 DECISION OF THE SUPREME COURT OF
ARKANSAS. 

/2/ MISSISSIPPI'S CONSTITUTION OF 1890, ART. 2, HOWEVER, READS, "UP
THE MIDDLE OF THE MISSISSIPPI RIVER, OR THREAD OF THE STREAM." 

/3/  OTHER ORDERS ARE REPORTED AT 402 U.S. 939 (1971) AND AT 403
U.S. 951 (1971). 

/4/  ALTHOUGH THE PRECEDENT IS NOT BINDING IN THIS ORIGINAL ACTION
BETWEEN THE TWO STATES, IT IS NOT WITHOUT INTEREST TO NOTE THAT IN
PRIVATE LITIGATION LUNA BAR HAS BEEN DETERMINED TO BE IN MISSISSIPPI
ANDERSON-TULLY CO. V. WALLS, 266 F.SUPP.  804 (ND MISS.  1967). 
ANOTHER PRIVATE SUIT INVOLVING THE ISSUE IS THE ONE MENTIONED ABOVE AS
PENDING IN THE ARKANSAS STATE COURTS.  ARKANSAS LAND & CATTLE CO. V.
ANDERSON-TULLY CO., SUPRA.  FURTHER PROCEEDINGS IN THAT LITIGATION WERE
STAYED ON FEBRUARY 16, 1971, BY THE CHANCERY COURT OF CHICOT COUNTY,
ARKANSAS, UNTIL FINAL JUDGMENT IN THE PRESENT ACTION.  SPECIAL COUNSEL
FOR THE RESPECTIVE STATES HERE WERE COUNSEL FOR THE PRIVATE PARTIES IN
THE CITED FEDERAL AND STATE COURT CASES. 

MR. JUSTICE DOUGLAS, DISSENTING. 

LUNA BAR IS TODAY AN ISLAND IN THE MISSISSIPPI RIVER.  ARKANSAS ON
THE WEST CLAIMS IT IS HERS BECAUSE THE RIVER AS A RESULT OF AN AVULSION
MOVED WEST.  MISSISSIPPI CLAIMS IT IS HERS BECAUSE LUNA BAR WAS CREATED
AS A RESULT OF AN AVULSION MOVED WEST.  MISSISSIPPI CLAIMS IT IS HERS
BECAUSE LUNA BAR WAS CREATED AS A RESULT OF SLOW GRADUAL ACCRETION. 
THE SPECIAL MASTER FOUND FOR MISSISSIPPI AND THE CASE IS HERE ON
EXCEPTIONS TO HIS REPORT. 

NO ONE HAS A HISTORICAL RECORDED ACCOUNT OF WHAT HAPPENED. 
MISSISSIPPI MADE ITS CASE BY USE OF EXPERTS WHO TESTIFIED AS TO HOW THE
MISSISSIPPI RIVER USUALLY PERFORMS.  THEY TESTIFIED THAT THE RIVER AT
LOW WATER WASHES THE CONCAVE SIDE OF A TURN (THIS BEING THE SIDE THAT
MARKS LUNA BAR) BUT THAT DURING HIGH WATER IT SCOURS THE CONVEX SIDE
(THAT BEING ARKANSAS).  THAT TESTIMONY GIVES FORCE TO THE ARGUMENT THAT
ACCRETION FORMED LUNA BAR, WASHING HEAVILY ARKANSAS LAND TO FORM THE
ISLAND.  FAVORING MISSISSIPPI WAS OTHER TESTIMONY THAT AT LEAST IN THE
MISSISSIPPI RIVER AVULSION WOULD SHORTEN THE COURSE OF THE RIVER, WHILE
HERE THE COURSE WAS LENGTHENED.  NEVER DID THE EXPERTS KNOW OF AN
INSTANCE WHERE AVULSION HAD WORKED THE WAY ARKANSAS CLAIMS. 

OPPOSED TO THESE HIGHLY QUALIFIED EXPERTS WERE LAY WITNESSES WHO
KNEW LUNA BAR.  THEY HAD LOCATED GREAT TREES THAT ONCE GREW THERE, THE
AGE OF THE TREES GOING BACK BEFORE 1800.  LUNA BAR THEREFORE WAS NOT
RECENTLY CREATED NOR WAS IT CREATED WITHIN THE LAST 100 YEARS.  IT HAD
BEEN THERE A LONG, LONG TIME.  MOREOVER, THE SOIL MATCHED ARKANSAS'
SOIL AND THE HEIGHT OF THE LAND ON LUNA BAR WAS COMPARABLE TO ARKANSAS'
ELEVATION.  THE ARKANSAS CASE WAS FURTHER BOLSTERED BY THE THEORY THAT
IN THE 1870'S THE AVULSIVE ACTION TOOK PLACE WHEN THE RIVER RETURNED TO
ITS OLD CHANNEL. 

THE SPECIAL MASTER STATED IN HIS REPORT: 

     "I AM AWARE THAT AS SPECIAL MASTER IT IS NOT MY FUNCTION TO

  RENDER A DECISION.  MY DUTY IS TO MAKE A REPORT CONTAINING SUCH

  REVIEW OF THE EVIDENCE AS I CONSIDER JUSTIFIES MY FINDINGS OF

  FACT.  I DO NOT CONSIDER THAT TO MAKE THE FINDINGS I DO, IT IS

  NECESSARY TO TOTALLY DESTROY THE VALIDITY OF ARKANSAS'

  CONTENTIONS.  THE BURDEN OF PERSUASION WAS UPON ARKANSAS. 

  INITIALLY ARKANSAS CONCEDED THAT MISSISSIPPI HAD MET ITS INITIAL

  BURDEN, AIDED AS IT WAS BY THE PRESUMPTION THAT THE CHANGE IN THE

  THALWEG OF THE RIVER WAS THE PRODUCT OF ACCRETION.  THE QUITE

  SPECIAL CHARACTER OF THE REASONING OF ARKANSAS'  WITNESSES LEAVES

  ME UNPERSUADED THAT IT HAS MET ITS BURDEN OF PROOF.  I MAKE CLEAR

ALSO THAT I WOULD COME TO THIS CONCLUSION EVEN IF THE BURDEN OF

  PROOF WAS NOT ON ARKANSAS, BUT WAS ON PLAINTIFF MISSISSIPPI." 

  REPORT OF SPECIAL MASTER 33. 

THE CASE IS CLOSE AND IF WE WERE GOVERNED BY THE RULE GOVERNING
DISTRICT COURT FINDINGS WHEN AN APPEAL IS TAKEN I WOULD AGREE THAT THE
SPECIAL MASTER'S FINDINGS ARE NOT "CLEARLY ERRONEOUS."  HERETOFORE THE
COURT HAS NOT CONSIDERED ITSELF LIMITED IN ITS REVIEW OF ITS MASTERS BY
THE "CLEARLY ERRONEOUS"  TEST.  /1/  WE SAID IN UNITED STATES V. UTAH,
283 U.S. 64, 89, THAT THE "FINDINGS OF THE MASTER . . . ARE JUSTIFIED
BY THE EVIDENCE"; AND IN KANSAS V. MISSOURI, 322 U.S. 213, 232, THAT
THE MASTER'S JUDGMENT "ACCORDS WITH THE CONCLUSIONS WE MAKE FROM OUR
OWN INDEPENDENT EXAMINATION OF THE RECORD."  AND SEE UNITED STATES V.
OREGON, 295 U.S. 1, 29.  IT HAS AT TIMES BEEN ARGUED THAT ORIGINAL
JURISDICTION SHOULD NOT BE TAKEN, BECAUSE OF THE WASTE OF JUDICIAL TIME
BY THIS COURT:  "IN AN ORIGINAL SUIT, EVEN WHEN THE CASE IS FIRST
REFERRED TO A MASTER, THIS COURT HAS THE DUTY OF MAKING AN INDEPENDENT
EXAMINATION OF THE EVIDENCE, A TIME-CONSUMING PROCESS WHICH SERIOUSLY
INTERFERES WITH THE DISCHARGE OF OUR EVER-INCREASING APPELLATE
DUTIES."  GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 470 (STONE,
C.J., DISSENTING).  THE MAJORITY OPINION DID NOT DISPUTE THAT CLAIM BUT
GAVE SPECIAL REASONS WHY ORIGINAL JURISDICTION WAS NECESSARY IN THAT
CASE.  ID., AT 465 - 466.  THE FINDINGS OF THE SPECIAL MASTER ARE OF
COURSE ENTITLED TO RESPECT AND THEIR WEIGHT WILL BE INCREASED TO THE
EXTENT THAT CREDIBILITY OF WITNESSES IS INVOLVED, AS HE SAW THEM AND
HEARD THEM, WHILE WE HAVE ONLY A COLD RECORD.  CREDIBILITY, HOWEVER,
SEEMS TO PLAY NO PART HERE.  THE RECORD CONSISTS OF MAPS AND OF
TESTIMONY OF WITNESSES.  THOSE TESTIFYING FOR MISSISSIPPI QUALIFIED AS
EMINENT EXPERTS.  THOSE TESTIFYING FOR ARKANSAS WERE IN PART EXPERTS
AND IN PART COUNTRYMEN WHO FOR YEARS KNEW LUNA BAR, FREQUENTED IT, AND
STUDIED IT.  THE EXPERTS OF MISSISSIPPI STATE A PLAUSIBLE EXPLANATION
THAT BOLSTERS THE THEORY OF ACCRETION.  BUT THE COUNTRYMEN WITH THEIR
PHYSICAL EVIDENCE CONVINCE ME THAT THE MISSISSIPPI ACTED IN AN
UNPRECENDENTED WAY, FOUND AN OLD CHANNEL AND IN ONE CONVULSIVE
OPERATION INVADED ARKANSAS, LEAVING LUNA BAR AN ISLAND CARVED OUT OF
ARKANSAS.  /2/ 

THERE IS EVIDENCE TAKEN FROM BORINGS THAT THE SOIL OF THE ISLAND IS
NOT COMPATIBLE WITH THE SOIL THAT WOULD RESULT FROM ACCRETION.  AN
EXPERT, DR. CLARENCE O. DURHAM, HEAD OF THE GEOSCIENCE DEPARTMENT OF
LOUISIANA STATE UNIVERSITY SPENT TWO DAYS ON THE ISLAND.  HE CONCLUDED
THAT PRIOR TO 1823, THE DATE OF THE FIRST FEDERAL LAND OFFICE SURVEY,
THE RIVER HAD FLOWED WEST OF THE ISLAND BUT THAT BETWEEN 1823 AND 1871
THE CHANNEL AT THAT POINT WAS NOT DIVIDED.  HE REACHED THIS CONCLUSION
FROM AN 1872 MAP WHICH SHOWED AN ABRUPT SHIFT OF THE ARKANSAS WESTERN
BANK INTO AN ABANDONED PREHISTORIC CHANNEL OF THE RIVER.  THE ISLAND IS
THE HARD BASE OF AN ANCIENT CLAY PLUG THAT DATES PRIOR TO 1823.  THE
ANCIENT CYPRESS STUMPS ON THE ARKANSAS MAINLAND AND THOSE ON THE WEST
SIDE OF THE ISLAND ARE COMPELLING EVIDENCE THAT THE ISLAND AND THE
MAINLAND WERE CONNECTED FOR SOME CENTURIES.  TO SAY THAT THE ISLAND WAS
FORMED BY ACCRETION IS TO USE MAGIC TO MAKE THE ANCIENT CYPRESS STUMPS
ON THE ISLAND DISAPPEAR.  THOSE TREES ARE OF THE CLIMAX SPECIES; AND
THE EXPERTS ALL AGREE THAT WHERE CLIMAX TREES APPEAR THE LAND MASS ON
WHICH THEY GROW IS AT LEAST 150 YEARS OLD.  THE TREES FOUND ON THE HIGH
GROUND OF THE ISLAND WERE BLACK WALNUT AND RED MULBERRY.  THOSE TREES
WERE THERE PRIOR TO 1800 WHICH WOULD BE IMPOSSIBLE IF LUNA BAR WAS THE
PRODUCT OF ACCRETION IN MODERN TIMES.  /3/  THE HARD CORE OF THE ISLAND
HAS AN ELEVATION BETWEEN 133.2 FEET AND 133.5 AND THE ELEVATION ON THE
ADJACENT ARKANSAS BANK IS BETWEEN 132.2 FEET AND 139 FEET.  /4/  AGAIN
THERE IS A COMPELLING INFERENCE THAT WHILE ACCRETION MAY HAVE ADDED
SOME SOIL TO THE ISLAND, THE HIGH HARD CORE OF THE ISLAND WAS ONCE
CONNECTED WITH THE MAINLAND AND SEVERED FROM IT BY SOME ABRUPT AND
VIOLENT ACTION OF THE RIVER. 

/1/  FED. RULE CIV. PROC. 52(A) PROVIDES THAT FINDINGS OF FACT MADE
BY DISTRICT COURTS "SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS." 
IT ALSO PROVIDES THAT "(THE FINDINGS OF A MASTER, TO THE EXTENT THAT
THE COURT ADOPTS THEM, SHALL BE CONSIDERED AS THE FINDINGS OF THE
COURT."  RULE 53(E)(2) PROVIDES THAT "(IN AN ACTION TO BE TRIED WITHOUT
A JURY THE COURT SHALL ACCEPT THE MASTER'S FINDINGS OF FACT UNLESS
CLEARLY ERRONEOUS."  BUT THOSE RULES ARE APPLICABLE ONLY TO "THE
PROCEDURE IN THE UNITED STATES DISTRICT COURTS IN ALL SUITS OF A CIVIL
NATURE."  RULE 1. 

BUT WE HAVE NEVER FORMULATED SUCH A RULE WHEN IT COMES TO OUR REVIEW
OF REPORTS SUBMITTED BY SPECIAL MASTERS WHOM WE HAVE NAMED IN CASES
UNDER OUR ORIGINAL JURISDICTION.  IT SEEMS INAPPROPRIATE THAT WE ADOPT
SUCH A RULE IN VIEW OF THE DELICACY AND GRAVITY OF MANY OF THE ISSUES
IN THESE CONTESTS BETWEEN TWO SOVEREIGN STATES OR BETWEEN THE UNITED
STATES AND ONE OR MORE OF THE STATES.  THE ULTIMATE DECISION ON THE
FACTS SHOULD REST WITH US, THE SOLE TRIBUNAL TO WHICH THE RESOLUTION OF
THE ISSUES IN THIS TYPE OF CASE HAS BEEN ENTRUSTED BY ART. III. 

IN GEORGIA V. BRAILSFORD, 3 DALL.  1, THE COURT IN A CASE UNDER THE
HEAD OF ITS ORIGINAL JURISDICTION IMPANELLED A JURY.  AND THAT
PROCEDURE, THOUGH SOON ABANDONED, WAS FOLLOWED IN A FEW OTHER CASES:
SEE 1 H. CARSON, HISTORY OF THE UNITED STATES SUPREME COURT 169 N. 1
(1902). 

IN RHODE ISLAND V. MASSACHUSETTS, 12 PET. 657, 734, INVOLVING A
BOUNDARY DISPUTE, THE COURT SAID:  "(WE MAY ASCERTAIN FACTS WITH OR
WITHOUT A JURY, AT OUR DISCRETION, AS THE CIRCUIT COURTS, AND ALL
OTHERS DO, IN THE ORDINARY COURSE OF EQUITY" OR ALTERNATELY "A
COMMISSION OF BOUNDARY" MAY BE AWARDED. 

IN PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., 9 HOW.  647, A
COMMISSIONER WAS APPOINTED TO HOLD HEARINGS AND REPORT TO THE COURT,
PENNSYLVANIA HAVING COMPLAINED OF THE ERECTION OF A BRIDGE ACROSS THE
OHIO RIVER AT WHEELING. 

WHILE COMMISSIONERS WERE APPOINTED IN THE EARLY YEARS, THE PRACTICE
THIS CENTURY HAS BEEN TO USE SPECIAL MASTERS. 

/2/  THE MASTER FOUND THAT ARKANSAS' PROOF FAILED TO JUSTIFY A
FINDING THAT THERE WAS AN ABANDONED CHANNEL WHICH THE MISSISSIPPI FOUND
AGAIN IN THE 1870'S.  THE ABSENCE OF INDEPENDENT EVIDENCE OF SUCH A
CHANNEL IS NOT SURPRISING, IN VIEW OF THE QUALITY OF THE MAPS MADE
BEFORE THE 1870'S.  FOR EXAMPLE, THE MASTER ATTACHES AS APPENDICES TO
HIS REPORT SIX MAPS OF THE AREA CHARTED BEFORE THE 1870'S.  ALL OF THEM
TRACE THE OUTLINE OF THE MISSISSIPPI FOR NAVIGATIONAL PURPOSES.  BUT
NONE ARE TOPOGRAPHICAL MAPS WHICH WOULD SHOW THE EXISTENCE OF AN
ANCIENT, DRY, LOW-LYING CHANNEL ON THE ARKANSAS MAINLAND INTO WHICH THE
MISSISSIPPI COULD DIVERT.  THIS, HOWEVER, DOES NOT SHOW THAT SUCH A
CHANNEL DID NOT EXIST OR REFUTE THE PHYSICAL EVIDENCE WHICH ARKANSAS
HAS MUSTERED.  JUST AS ARKANSAS HAS NOT PRODUCED A PRE-1870 MAP PROVING
THE PRIOR EXISTENCE OF THE ANCIENT CHANNEL, MISSISSIPPI DIRECTS US TO
NO MAP TO PROVE THAT SUCH A CHANNEL DID NOT EXIST. 

/3/  THE MASTER STATED THAT THE TESTIMONY ABOUT VEGETATION AND THE
AGE OF TREES ON THE ISLAND WAS, "AS FAR AS I CAN TELL, REASONABLY
COMPARABLE"  TO THAT PRESENTED IN TWO EARLIER CASES CONCERNING THE
ORIGIN OF LUNA BAR (ANDERSON-TULLY CO. V. WALLS, 266 F.SUPP.  804;
ARKANSAS LAND & CATTLE CO. V. ANDERSON-TULLY CO., 248 ARK. 495, 452
S.W.2D 632).  THE MASTER ALSO STATED THAT "(IT WAS THE POSITION OF
MISSISSIPPI THAT VARIOUS STUMPS FOUND ON LUNA BAR AND SPANISH MOSS BEND
HAD BEEN BROUGHT THERE BY FLOOD WATERS.  ITS POSITION IN SUCH REGARD
WAS SUSTAINED BY THE COURTS HERETOFORE CONSIDERING THE MATTER.  I DO
LIKEWISE." 

NEITHER OF THE EARLIER CASES MAKES CLEAR THE EXACT EXTENT OF
TESTIMONY ADMITTED, OR PRECISELY HOW IT CORRESPONDS WITH THE TESTIMONY
GIVEN BEFORE THE SPECIAL MASTER IN THE INSTANT CASE.  ARKANSAS,
HOWEVER, NOTES THAT "EVIDENCE OF THE RELIC TREES FOUND ON TOP OF THE
ISLAND (WAS) NOT DISCOVERED AT (THE TIME OF THE EARLIER LITIGATION),
AND THIS RECORD IS THE ONLY RECORD OF THEIR EXISTENCE."  MOREOVER, IT
IS HARDLY TRUE THAT THE ARKANSAS COURT "SUSTAINED" MISSISSIPPI'S
POSITION THAT THE CYPRESS STUMPS FOUND IN SPANISH MOSS BEND HAD BEEN
CARRIED THERE BY FLOODWATERS.  THAT COURT, REMANDING THE CASE TO THE
LOWER COURT FOR FURTHER PROCEEDINGS, NOTED THAT THE APPEARANCE OF AT
LEAST TWO OF THE STUMPS IN PHOTOGRAPHS TENDED TO LEND SUPPORT TO
TESTIMONY THAT THEY HAD GROWN IN PLACE.  SO DID THE DESIGNATION OF
"CYPRESS KNEES" AND "CYPRESS STUMPS" AND TREES ALONG THE ARKANSAS SHORE
NEAR THE MAINLAND ON SEVERAL EARLY MISSISSIPPI RIVER COMMISSION
CHARTS.  THESE DESIGNATIONS INDICATED THAT THERE WAS EVIDENCE OF
CYPRESS STUMPS MANY YEARS BEFORE 1940, WHEN IT WAS CONTENDED THAT THEY
HAD BEEN FLOATED DOWNRIVER AND LEFT AT LUNA BAR.  248 ARK., AT 502, 452
S.W.2D, AT 637.  FINALLY, THE OPINION OF THE DISTRICT COURT IN ANDERSON
TULLY CO. V. WALLS, SUPRA, DOES NOT EVEN MENTION THE CYPRESS STUMPS. 
THEREFORE, AS TO THE ANCIENT RELIC STUMPS FOUND ON TOP OF THE ISLAND
AND IN SPANISH MOSS BEND, IT WOULD NOT SEEM THAT WE ARE FORCED TO
OVERCOME THE DECISION OF ANY PREVIOUS COURT WHICH HAS ACCEPTED
MISSISSIPPI'S THEORY ABOUT THEIR ORIGIN. 

ON THE OTHER HAND, RICHARD PROCTOR, WHO HAS LIVED IN THE AREA OF
LUNA BAR FOR 91 YEARS, TESTIFIED THAT HE HAD FISHED AROUND CYPRESS
STUMPS IN THE RIVER WHICH HAD BEEN THERE "AS LONG AS I BEEN BIG ENOUGH
TO KNOW."  MOREOVER, HE TESTIFIED THAT HE FOUND A MINK IN AN OLD
CISTERN ON THE BAR, THE EXISTENCE OF WHICH IS QUITE INCONSISTENT WITH
THE POINT BAR MIGRATION THEORY. 

/4/  THE FACT THAT AN EARLY MISSISSIPPI RIVER COMMISSION
HYDROGRAPHIC SURVEY SHOWED THE ELEVATION OF LUNA BAR TO BE SOMEWHAT
LOWER THAN THAT OF THE LAND ON THE WEST BANK OF SPANISH MOSS BEND, THE
ARKANSAS SIDE OF THE RIVER, DOES NOT DISPROVE ARKANSAS' POSITION THAT
LUNA BAR ORIGINATED AS A PORTION OF THE ARKANSAS MAINLAND WHICH WAS
SEVERED BY AVULSION.  REFERENCE TO APPENDIX A OF THE COURT'S DECREE, A
TOPOGRAPHIC MAP PREPARED BY THE ARMY CORPS OF ENGINEERS, SHOWS THE
FOLLING NATURE OF MUCH OF THE LAND ADJACENT TO THE MISSISSIPPI RIVER IN
THE AREA OF LUNA BAR AND INDICATES THAT A DIFFERENCE IN ELEVATION
BETWEEN TWO POINTS WOULD NOT BE STARTLING.  MOREOVER, IT APPEARS THAT
IN 1874, BETWEEN THE TIME WHEN ARKANSAS CLAIMS THE AVULSION OCCURRED
AND THE TIME THE MISSISSIPPI RIVER COMMISSION CONDUCTED ITS SURVEY,
THERE WAS A FLOOD IN THE MISSISSIPPI WHICH WOULD HAVE WASHED AT LUNA
BAR.  SEE ARKANSAS LAND & CATTLE CO. V. ANDERSON-TULLY CO., 248 ARK.,
AT 506, 452 S.W.2D, AT 639. 

MITCHELL E. WARD ARGUED THE CAUSE FOR PLAINTIFF ON EXCEPTIONS TO THE
REPORT OF THE SPECIAL MASTER.  WITH HIM ON THE BRIEF WERE ALBIOUN F.
SUMMER, ATTORNEY GENERAL OF MISSISSIPPI, AND MARTIN R. MC LENDON,
ASSISTANT ATTORNEY GENERAL. 

WILLIAM H. DREW ARGUED THE CAUSE FOR DEFENDANT.  WITH HIM ON THE
BRIEF WAS JIM GUY TUCKER, ATTORNEY GENERAL OF ARKANSAS. 
..END :













MISSISSIPPI V. ARKANSAS, 415 U.S. 302 


       NO. 48, ORIG.  DECIDED FEBRUARY 26, 1974--DECREE ENTERED

           FEBRUARY 26, 1974; OPINION REPORTED:  ANTE, P. 289. 


       DECREE 

IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS: 

1.  LUNA BAR, DEPICTED IN MISSISSIPPI'S EXHIBITS 1 AND 2,
CONSTITUTING, RESPECTIVELY, APPENDIX A AND PART OF APPENDIX B TO THE
SPECIAL MASTER'S REPORT, AND APPENDED HERETO AND HEREBY MADE A PART OF
THIS DECREE, CAME INTO EXISTENCE BY ACCRETION TO CARTER POINT AND IS,
AND WAS, A PART OF THE STATE OF MISSISSIPPI. 

2.  THE BOUNDARY LINE BETWEEN THE STATE OF MISSISSIPPI AND THE STATE
OF ARKANSAS IN THE AREAS BETWEEN THE UPSTREAM AND THE DOWNSTREAM ENDS
OF TARPLEY CUT-OFF IS AS FOLLOWS:

  IN THE ABANDONED BED OF THE MISSISSIPPI RIVER BETWEEN THE
UPSTREAM END OF THE TARPLEY CUT-OFF

  AND THE DOWNSTREAM END OF TARPLEY CUT-OFF, AS DEFINED AND
IDENTIFIED IN MISSISSIPPI'S SAID

  EXHIBIT 2.  THE COURSES AND DISTANCES OF THE ABOVE-DESCRIBED LINE
ARE SET OUT IN SAID EXHIBIT

  2. 

3.  THE COST OF THIS SUIT, INCLUDING THE EXPENSES OF THE SPECIAL
MASTER AND THE PRINTING OF HIS REPORT, HAVE BEEN PAID OUT OF THE FUND
MADE UP OF EQUAL CONTRIBUTIONS BY THE STATE OF MISSISSIPPI AND THE
STATE OF ARKANSAS AND SAID FUND HAS BEEN SUFFICIENT TO DEFRAY ALL SAID
EXPENSES TO THE DATE OF THE ISSUANCE OF THE REPORT.  ANY COSTS AND
EXPENSES THAT MAY BE INCURRED BEYOND THE AMOUNT SO CONTRIBUTED BY THE
RESPECTIVE LITIGANTS SHALL BE BORNE BY THE STATE OF ARKANSAS. 

MITCHELL E. WARD ARGUED THE CLAUSE FOR PLAINTIFF ON EXECEPTIONS TO
THE REPORT OF THE SPECIAL MASTER.  WITH HIM ON THE BRIEF WERE ALBIOUN
F. SUMMER, ATTORNEY GENERAL OF MISSISSIPPI, AND MARTIN R. MCLENDON,
ASSISTANT ATTORENY GENERAL. 

WILLIAM H. DREW ARGUED THE CLAUSE FOR DEFENDANT.  WITH HIM ON THE
BRIEF WAS JIM GUY TUCKER, ATTORNEY GENERAL OF ARKANSAS. 
..END :





PATTERSON V. WARNER, 415 U.S. 303 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF WEST VIRGINIA

NO. 72 - 5830.  ARGUED JANUARY 9, 1974--DECIDED FEBRUARY 26,

           1974; VACATED AND REMANDED. 


    SUBSEQUENT TO THE THREE-JUDGE DISTRICT COURT'S JUDGMENT

  UPHOLDING, AGAINST DUE PROCESS AND EQUAL PROTECTION CHALLENGES, A

  WEST VIRGINIA STATUTE REQUIRING A DOUBLE BOND AS A CONDITION FOR

  AN APPEAL FROM A JUSTICE OF THE PEACE'S JUDGMENT IN A CIVIL CASE,

  THE WEST VIRGINIA SUPREME COURT IN ANOTHER ACTION UPHELD THE

  DOUBLE-BOND PROVISION.  THE COURT HELD, HOWEVER, THAT A JUSTICE

  OF THE PEACE JUDGMENT AGAINST THE DEFENDANT VIOLATED DUE PROCESS

  AND WAS "VOID" ON THE GROUND THAT BECAUSE THE FEE OF THE JUSTICE

  OF THE PEACE WAS ENHANCED WHEN HE RULED IN THE PLAINTIFF'S FAVOR,

  HE HAD A PECUNIARY INTEREST IN THE CASE'S OUTCOME.  THE JUDGMENT

  IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT SO THAT

  THAT COURT, IN THE FIRST INSTANCE, MAY EVALUATE THE EFFECT OF THE

  INTERVENING DECISION. 

PER CURIAM. 

WE NOTED PROBABLE JURISDICTION IN THIS CASE, 411 U.S. 905 (1973),
BECAUSE IT APPEARED TO PRESENT A SIGNIFICANT ISSUE, UNDER THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT, AS TO
THE VALIDITY OF THAT PROVISION OF W. VA. CODE ANN. PARA. 50 - 15 - 2
(1966), /1/  REQUIRING A DOUBLE BOND AS A CONDITION FOR AN APPEAL FROM
A JUDGMENT ENTERED BY A JUSTICE OF THE PEACE IN A CIVIL CASE.  SEE
LINDSEY V. NORMET, 405 U.S. 56, 74 - 79 (1972). 

IN NOVEMBER 1968 APPELLANT PATTERSON PURCHASED A USED AUTOMOBILE
FROM APPELLEE GRAHAM MOTOR COMPANY UNDER A DEFERRED-PURCHASE MONEY
CONTRACT.  THAT PORTION OF THE PRICE NOT PAID AT THE TIME OF PURCHASE
WAS EVIDENCED BY A NEGOTIABLE PROMISSORY NOTE.  AFTER TAKING DELIVERY
OF THE AUTOMOBILE BUT BEFORE COMPLETION OF HIS PAYMENTS, PATTERSON
ENCOUNTERED MECHANICAL DIFFICULTIES WITH THE CAR.  FINDING HIMSELF
UNABLE TO OBTAIN SATISFACTION FROM GRAHAM, PATTERSON UNDERTOOK TO
REJECT THE PURCHASE, PURSUANT TO W. VA. CODE ANN. PARA. 46 - 2 - 602
(1966), AND MADE NO FURTHER PAYMENTS ON THE NOTE. 

GRAHAM THEN SUED PATTERSON IN APPELLEE WARNER'S JUSTICE OF THE PEACE
COURT AND, DESPITE A NUMBER OF DEFENSES ASSERTED BY PATTERSON--BREACH
OF WARRANTY, FRAUD, RIGHTFUL REPUDIATION, AND OTHERS--OBTAINED A
JUDGMENT FOR $300 PLUS COSTS.  /2/ 

PATTERSON SOUGHT TO APPEAL THE CASE TO A COURT OF RECORD.  BOND WAS
SET AT $600, DOUBLE THE AMOUNT OF THE JUDGMENT, AS PARA. 50 - 15 - 2
SPECIFIED.  PATTERSON WAS UNABLE TO FIND AN INDIVIDUAL SURETY AND,
BEING INDIGENT, WAS ALSO UNABLE TO RAISE THE AMOUNT REQUIRED BY A
COMMERCIAL SURETY.  AS A RESULT, THE APPEAL WAS NOT PERFECTED AND THE
JUDGMENT ADVERSE TO HIM BECAME FINAL. 

PRIOR TO EXECUTION ON THE JUDGMENT, PATTERSON INSTITUTED THIS
PURPORTED CLASS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA AGAINST JUSTICE OF THE PEACE WARNER
AND AGAINST GRAHAM.  HE SOUGHT INJUNCTIVE AND DECLARATORY RELIEF.  A
THREE-JUDGE COURT WAS CONVENED AND UPHELD THE CHALLENGED WEST VIRGINIA
STATUTE.  IT REASONED THAT THE FULL HEARING BEFORE THE JUSTICE, WITH
THE OPPORTUNITY TO PRESENT A DEFENSE, ACCORDED APPELLANT DUE PROCESS,
AND THAT THERE WAS NO REQUIREMENT THAT THE STATE PROVIDE APPELLATE
REVIEW.  TURNING TO EQUAL PROTECTION, THE COURT HELD THAT A STATE MAY
PROPERLY TAKE STEPS TO INSURE THAT AN APPELLANT POST ADEQUATE SECURITY
TO PROTECT A DAMAGES AWARD ALREADY MADE, CITING LINDSEY V. NORMET, 405
U.S., AT 77; THAT AN APPEAL IN FORMA PAUPERIS IN A CIVIL CASE IS A
PRIVILEGE, NOT A RIGHT; AND THAT "THE CONCEPT OF EQUAL PROTECTION DOES
NOT INCLUDE FULL AND UNRESTRAINED APPELLATE REVIEW OF AN INITIAL
ADJUDICATION WHICH AFFORDED DUE PROCESS."  PATTERSON'S REQUEST FOR
RELIEF WAS THEREFORE DENIED. 

AFTER PROBABLE JURISDICTION HAD BEEN NOTED HERE, AND SHORTLY PRIOR
TO THE FILING OF BRIEFS IN THIS COURT, THE SUPREME COURT OF WEST
VIRGINIA DECIDED STATE EX REL. REECE V. GIES,--W. VA.--, 198 S.E.2D 211
(1973).  IN REECE THE PORTION OF PARA. 50 - 15 - 2 REQUIRING AN APPEAL
BOND IN AN AMOUNT DOUBLE THE DAMAGES PLUS ONE YEAR'S RENT AS A
PREREQUISITE TO AN APPEAL FROM A JUSTICE COURT IN A SUIT FOR UNLAWFUL
DETENTION OF REAL ESTATE WAS UNDER CONSTITUTIONAL CHALLENGE.  THE WEST
VIRGINIA COURT, CITING THE DECISION IN THE PRESENT CASE AND GREER V.
DILLARD, 213 VA. 477, 193 S.E.2D 668 (1973), UPHELD THE BOND AMOUNT
PROVISION, WITH TWO OF THE COURT'S FIVE JUSTICES DISSENTING ON THAT
ISSUE, BUT WENT ON TO RULE UNANIMOUSLY THAT THE JUDGMENT ENTERED
AGAINST THE DEFENDANT BY A WEST VIRGINIA JUSTICE OF THE PEACE WAS
VIOLATIVE OF THE DUE PROCESS CLAUSES OF THE FEDERAL AND STATE
CONSTITUTIONS AND WAS "VOID."--W. VA., AT--, 198 S.E.2D, AT 216.  ITS
RATIONALE WAS THAT, BECAUSE THE JUSTICE'S FEE WAS ENHANCED WHEN HE
RULED IN FAVOR OF THE PLAINTIFF, HE POSSESSED A PECUNIARY INTEREST IN
THE CASE'S OUTCOME, AND THE PARTIES THEREFORE WERE DENIED A NEUTRAL AND
UNBIASED JUDGE.  SEE ALSO STATE EX REL. MOATS V. JANCO, 154 W. VA. 887,
180 S.E.2D 74 (1971). 

THE JUDGMENT ENTERED AGAINST APPELLANT PATTERSON BY APPELLEE WARNER
WAS RENDERED PURSUANT TO THE SAME WEST VIRGINIA STATUTORY SCHEME THAT
WAS CHALLENGED, IN PART SUCCESSFULLY, IN REECE.  APPELLANT, UPON
BECOMING AWARE OF THE REECE DECISION, FILED A SUGGESTION OF MOOTNESS
HERE.  APPELLE WARNER AT THE TIME OPPOSED THE SUGGESTION.  ALTHOUGH
THAT ASPECT OF THE CASE WAS NOT ADDRESSED IN THE BRIEFS, IT WAS
DISCUSSED AT ORAL ARGUMENT.  TR. OF ORAL ARG. 3 - 6, 34 - 36. 
APPELLANT, DESPITE HIS HAVING MADE THE SUGGESTION OF MOOTNESS, ASSERTED
AT ORAL ARGUMENT THAT REECE HAD NO RETROACTIVE APPLICATION, AND THAT
THE JUDGMENT ENTERED AGAINST HIM WAS NOT VOID AND THE CASE WAS NOT
MOOT.  ID., AT 5.  APPELLEE WARNER CONTENDED OTHERWISE, ID., AT 37 -
38, STATING THAT IN WEST VIRGINIA, UNDER FALCONER V. SIMMONS, 51 W. VA.
172, 41 S.E. 193 (1902), A SUPREME COURT PRONOUNCEMENT, WITH ONE
EXCEPTION, IS FULLY RETROACTIVE IN THE SENSE THAT IT IS REGARDED AS
ALWAYS HAVING BEEN THE LAW. 

INASMUCH AS THE DECISION OF THE SUPREME COURT OF WEST VIRGINIA IN
REECE WAS RENDERED AFTER THE ENTRY OF THE JUDGMENT IN THE PRESENT CASE,
THE THREE-JUDGE DISTRICT COURT HAD NO OCCASION TO CONSIDER WHETHER THE
DECISION IN REECE MEANS THAT THE JUDGMENT OBTAINED BY GRAHAM AGAINST
PATTERSON IS VOID AND WHETHER THE PRESENT CASE HAS BECOME MOOT.  WE
DEEM IT DESIRABLE THAT THE DISTRICT COURT, IN THE FIRST INSTANCE,
EVALUATE THE EFFECT OF THAT INTERVENING DECISION.  ACCORDINGLY, THE
JUDGMENT OF THE DISTRICT COURT IS VACATED, AND THE CASE IS REMANDED TO
THAT COURT FOR RECONSIDERATION IN THE LIGHT OF STATE EX REL. REECE V.
GIES,--W. VA.--, 198 S.E.2D 211 (1973).  IN SO DOING, WE INTIMATE NO
VIEW AS TO WHETHER THE CASE IS OR IS NOT NOW MOOT. 

              IT IS SO ORDERED. 

/1/  W. VA. CODE ANN. PARA. 50 - 15 - 2. 

     "THE APPEAL SHALL NOT BE GRANTED BY THE JUSTICE UNLESS, WITHIN

  TEN DAYS DAYS AFTER THE JUDGMENT IS RENDERED . . . BOND WITH GOOD

SECURITY, TO BE APPROVED BY THE JUSTICE, IN A PENALTY DOUBLE THE

  AMOUNT OF THE JUDGMENT, IS FILED WITH HIM, WITH CONDITION TO THE

  EFFECT THAT THE PERSON PROPOSING TO APPEAL WILL PERFORM AND

  SATISFY ANY JUDGMENT WHICH MAY BE RENDERED AGAINST HIM ON SUCH

  APPEAL . . . OR IF HE DOES NOT WISH TO STAY THE EXECUTION ON SUCH

  JUDGMENT, WITH CONDITION TO PAY THE COSTS OF SUCH APPEAL IF THE

  JUDGMENT APPEALED FROM BE AFFIRMED.  IN CASE THERE BE JUDGMENT

  BEFORE THE JUDGMENT BEFORE THE JUSTICE AGAINST THE PALINTIFF FOR

COSTS ONLY, AND THE PLAINTIFF DESIRES TO APPEAL, THE BOND SHALL

  BE FOR COSTS, CONDITIONED AS AFORESAID, AND IN A PENALTY NOT

  EXCEEDING ONE HUNDRED DOLLARS.  . . ." 

/2/  THREE HUNDRED DOLLARS IS THE MONETARY LIMIT OF THE JURISDICTION
OF A WEST VIRGINIA JUSTICE OF THE PEACE IN A CIVIL ACTION FOR THE
RECOVERY OF MONEY.  W. VA. CODE ANN. PARA. 50 - 2 - 1. 

GEORGE R. HIGINBOTHAM ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WAS PAUL J. KAUFMAN. 

PHILLIP D. GAUJOT, ASSISTANT ATTORNEY GENERAL OF WEST VIRGINIA,
ARGUED THE CAUSE FOR APPELLEES PRO HAC VICE.  WITH HIM ON THE BRIEF
WERE CHAUNCEY H. GROWNING, JR., ATTORNEY GENERAL, CLETUS B. HANLEY,
DEPUTY ATTORNEY GENERAL, AND WILLIAM D. HIGHLAND, SPECIAL ASSISTANT
ATTORNEY GENERAL. 
..END :







UNITED STATES V. KAHAN, 415 U.S. 239 


       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS

        FOR THE SECOND CIRCUIT

        NO. 73 - 428.  DECIDED FEBRUARY 25, 1974; CERTIORARI

           GRANTED; 479 F.2D 290,

REVERSED AND REMANDED. 


    AT RESPONDENT'S ARRAIGNMENT FOR IMPROPERLY RECEIVING GRATUITIES

  FOR OFFICIAL ACTS AND FOR PERJURY BEFORE THE GRAND JURY, COUNSEL

  WAS APPOINTED TO REPRESENT HIM AT HIS REQUEST AND AFTER HE STATED

  HE WAS WITHOUT FUNDS; HE FAILED, IN RESPONSE TO A QUESTION AS TO

  WHETHER HE HAD FUNDS TO EMPLOY AN ATTORNEY, TO DISCLOSE THAT HE

  HAD ACCESS TO CERTAIN SAVINGS ACCOUNTS IN WHICH HE HAD DEPOSITED

  $27,000.  ON TRIAL, HIS STATEMENTS AS TO LACK OF FUNDS WERE

ADMITTED AS FALSE EXCULPATORY STATEMENTS EVINCING HIS

CONSCIOUSNESS THAT THE BANK DEPOSITS WERE INCRIMINATING, AND AS

  EVIDENCE OF WILLFULNESS IN MAKING STATEMENTS BEFORE THE GRAND

  JURY WITH KNOWLEDGE OF THEIR FALSITY.  THE COURT OF APPEALS, IN

  RELIANCE ON SIMMONS V. UNITED STATES, 390 U.S. 377, REVERSED,

  HOLDING THAT THE ADMISSION OF THE FALSE STATEMENTS VIOLATED

  RESPONDENT'S FIFTH AMENDMENT RIGHT TO COUNSEL.  HELD:  THE

  INCRIMINATING COMPONENT OF RESPONDENT'S PRETRIAL STATEMENTS

  DERIVES, NOT FROM THEIR CONTENT, BUT FROM HIS KNOWLEDGE OF THEIR

  FALSITY, THE TRUTH OF THE MATTER BEING THAT HE KNEW HE WAS NOT

  INDIGENT AND DID NOT HAVE A RIGHT TO THE APPOINTMENT OF COUNSEL. 

NOR IS THERE INVOLVED WHAT WAS "BELIEVED" BY THE CLAIMANT TO BE A

  VALID" CONSTITUTIONAL CLAIM, HENCE RESPONDENT WAS NOT FACED WITH

  THE "INTOLERABLE" CHOICE OF HAVING TO SURRENDER ONE

  CONSTITUTIONAL RIGHT IN ORDER TO ASSERT ANOTHER.  SIMMONS V.

  UNITED STATES, SUPRA, DISTINGUISHED. 

PER CURIAM. 

RESPONDENT, A FORMER IMMIGRATION INSPECTOR, WAS CONVICTED BY A JURY
IN THE DISTRICT COURT OF NUMEROUS COUNTS UNDER A MULTIPLE-COUNT
INDICTMENT; THE CONVICTION COVERED 20 COUNTS OF IMPROPERLY RECEIVING
GRATUTIES FOR OFFICIAL ACTS, IN VIOLATION OF 18 U.S.C. PARA. 201(G),
AND ONE OF PERJURY BEFORE THE GRAND JURY, IN VIOLATION OF 18 U.S.C.
PARA. 1623, ARISING OUT OF A SCHEME TO DEFRAUD NONRESIDENT ALIENS AND
THE IMMIGRATION AND NATURALIZATION SERVICE.  THE COURT OF APPEALS
REVERSED RESPONDENT'S CONVICTION AND REMANDED THE CASE FOR RETRIAL. 
479 F.2D 290 (CA2 1973).  RESPONDENT'S MOTION TO PROCEED IN FORMA
PAUPERIS IN THIS COURT, AND THE PETITION FOR A WRIT OF CERTIORARI, ARE
GRANTED.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR REINSTATEMENT OF THE
JUDGMENT OF CONVICTION. 

AT RESPONDENT'S ARRAIGNMENT, COUNSEL WAS APPOINTED UNDER THE
CRIMINAL JUSTICE ACT OF 1964, 18 U.S.C. PARA. 3006AB), TO REPRESENT HIM
AFTER HE REQUESTED THE APPOINTMENT AND STATED THAT HE WAS WITHOUT
FUNDS.  IN RESPONSE TO A DIRECT QUESTION AS TO WHETHER HE HAD FUNDS TO
EMPLOY AN ATTORNEY, HE FAILED TO DISCLOSE THAT HE HAD ACCESS TO AND
CONTROL OF FOUR SAVINGS ACCOUNTS IN WHICH HE HAD DEPOSITED
APPROXIMATELY $27,000 DURING 1970 AND 1971, /1/  AND FROM WHICH HE MADE
FREQUENT WITHDRAWALS IMMEDIATELY SUBSEQUENT TO THE ARRAIGNMENT.  THE
ACCOUNTS WERE APPARENTLY ESTABLISHED BY RESPONDENT IN SO-CALLED "TOTTEN
TRUSTS" FOR HIS CHILDREN AS THE INTENDED DONEES; UNDER NEW YORK LAW
THESE TRUSTS WERE REVOCABLE AT RESPONDENT'S WILL.  IN RE TOTTEN, 179
N.Y. 112, 71 N.E. 748 (1904).  THE DEPOSITS TO THESE UNDISCLOSED
ACCOUNTS AGGREGATED MORE THAN THE $25,000 WHICH RESPONDENT REPORTED AS
HIS TOTAL LEGITIMATE INCOME ON HIS TAX RETURNS FOR 1970 AND 1971 AND
EVIDENCE OF THE DEPOSITS WAS ADMITTED AT TRIAL AS SUPPORTING THE
INFERENCE THAT HE IMPROPERLY RECEIVED THE GRATUTIES AS WAS CHARGED.  AS
PART OF THE GOVERNMENT'S CASE IN CHIEF THE DISTRICT COURT ADMITTED
EVIDENCE OF RESPONDENT'S STATEMENTS TO THE COURT AS TO HIS LACK OF
FUNDS.  /2/  THE STATEMENTS WERE ADMITTED AS FALSE EXCULPATORY
STATEMENTS EVINCING RESPONDENT'S CONSCIOUSNESS THAT THE BANK DEPOSITS
WERE INCRIMINATING, AND AS EVIDENCE OF WILLFULNESS IN MAKING STATEMENTS
BEFORE THE GRAND JURY WITH KNOWLEDGE OF THEIR FALSITY. 

THE COURT OF APPEALS HELD THAT THE ADMISSION OF RESPONDENT'S FALSE
STATEMENTS VIOLATED HIS FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY
SELF-INCRIMINATION AND HIS SIXTH AMENDMENT RIGHT TO COUNSEL BECAUSE IN
ITS VIEW THE "ULTIMATE TRUTH OF THE MATTER ASSERTED IN THE PRETRIAL
REQUEST FOR APPOINTED COUNSEL IS OF NO MOMENT.  SEE SIMMONS V. UNITED
STATES, 390 U.S. 377."  479 F.2D, AT 292.  THE COURT OF APPEALS CITED
UNITED STATES V. BRANKER, 418 F.2D 378 (CA2 1969), FOR ITS APPLICATION
OF SIMMONS V. UNITED STATES, 390 U.S. 377 (1968), TO THE ASSERTION OF
THE SIXTH AMENDMENT RIGHT.  THE COURT OF APPEALS' RELIANCE ON SIMMONS
MISCONCEIVES THE THRUST OF THAT HOLDING. 

IN SIMMONS ONE OF THE DEFENDANTS, IN AN ATTEMPT TO ESTABLISH
STANDING TO MOVE FOR SUPPRESSION OF A SUITCASE CONTAINING INCRIMINATING
EVIDENCE SEIZED BY THE POLICE, TESTIFIED AT THE PRETRIAL SUPPRESSION
HEARING THAT THE SUITCASE WAS SIMILAR TO ONE HE OWNED.  THE MOTION TO
SUPPRESS WAS DENIED, AND THE GOVERNMENT USED THE DEFENDANT'S TESTIMONY
AGAINST HIM IN ITS CASE IN CHIEF.  VIEWING THE TESTIMONY AS AN
"INTEGRAL PART" OF THE CLAIM FOR EXCLUSION, THE COURT HELD ITS USE
IMPERMISSIBLE BECAUSE IT CONDITIONED THE EXERCISE OF WHAT THE DEFENDANT
"BELIEVED . . . TO BE A VALID FOURTH AMENDMENT CLAIM" ON A WAIVER OF
THE CONSTITUTIONAL PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION. 
ID. AT 391, 394. 

TO ESTABLISH STANDING TO MOVE FOR SUPPRESSION OF EVIDENCE ASSERTEDLY
ILLEGALLY SEIZED, THE CLAIMANT MUST SHOW THE KIND OF INTEREST IN THAT
EVIDENCE SET FORTH IN BROWN V. UNITED STATES, 411 U.S. 223, 229 - 230
(1973), WHICH WOULD NECESSARILY BE INCRIMINATING SHOULD THE MOTION FAIL
AND THE DEFENDANT'S INTEREST THEREIN BE INTRODUCED.  THE NEED TO CHOOSE
BETWEEN WAIVING THE FIFTH AMENDMENT PRIVILEGE AND ASSERTING AN
INCRIMINATING INTEREST IN EVIDENCE SOUGHT TO BE SUPPRESSED, OR INVOKING
THE PRIVILEGE BUT THEREBY FORSAKING THE CLAIM FOR EXCLUSION, CREATES
WHAT THE COURT CHARACTERIZED AS AN "INTOLERABLE"  NEED TO SURRENDER ONE
CONSTITUTIONAL RIGHT IN ORDER TO ASSERT ANOTHER.  SIMMONS, 390 U.S., AT
394. 

EVEN ASSUMING THAT THE SIMMONS PRINCIPLE WAS APPROPRIATELY EXTENDED
TO SIXTH AMENDMENT CLAIMS FOR APPOINTED COUNSEL BY THE BRANKER HOLDING,
A QUESTION WHICH WE DO NOT NOW DECIDE, CF. MCGAUTHA V. CALIFORNIA, 402
U.S. 183, 210 - 213 (1971), THAT PRINCIPLE CANNOT BE APPLIED TO PROTECT
RESPONDENT HERE.  SIMMONS BARRED THE USE OF PRETRIAL TESTIMONY AT TRIAL
TO PROVE ITS INCRIMINATING CONTENT.  HERE, BY CONTRAST, THE
INCRIMINATING COMPONENT OF RESPONDENT'S PRETRIAL STATEMENT'S KNOWLEDGE
OF THEIR FALSITY.  /3/  THE TRUTH OF THE MATTER WAS THAT RESPONDENT WAS
NOT INDIGENT, AND DID NOT HAVE A RIGHT TO APPOINTMENT OF COUNSEL UNDER
THE SIXTH AMENDMENT.  WE ARE NOT DEALING, AS WAS THE COURT IN SIMMONS,
WITH WHAT WAS "BELIEVED" BY THE CLAIMANT TO BE A "VALID" CONSTITUTIONAL
CLAIM, SEE N. 2, SUPRA.  RESPONDENT WAS NOT, THEREFORE, FACED WITH THE
TYPE OF INTOLERABLE CHOICE SIMMONS SOUGHT TO RELIEVE.  THE PROTECTIVE
SHIELD OF SIMMONS IS NOT TO BE CONVERTED INTO A LICENSE FOR FALSE
REPRESENTATIONS ON THE ISSUE OF INDIGENCY FREE FROM THE RISK THAT THE
CLAIMANT WILL BE HELD ACCOUNTABLE FOR HIS FALSEHOOD.  CF. HARRIS V. NEW
YORK, 401 U.S. 222, 226 (1971). 

REVERSED AND REMANDED. 

/1/  THE TRANSCRIPT OF THE COLLOQUY AT ARRAIGNMENT READS IN PART AS
FOLLOWS: 

     "THE COURT:  YOUR NAME, SIR? 

     "THE DEFENDANT:  I AM NORBERT KAHAN, SIR. 

     "THE COURT:  HAVE YOU AN ATTORNEY? 

   "THE DEFENDANT:  NO, SIR. 

     "THE COURT:  HAVE YOU ANY MONEY TO HIRE AN ATTORNEY? 

     "THE DEFENDANT:  I DO, SIR, BUT IT'S BLOCKED BY MY WIFE FROM
WHOM I AM DIVORCED. 

     "THE COURT:  DO YOU WANT A WEEK TO TRY AND STRAIGHTEN THAT
OUT? 

     "THE DEFENDANT:  THERE IS A SUIT COMING UP SOMETIME EARLY NEXT
YEAR. 

     "THE COURT:  WE CAN'T WAIT UNTIL NEXT YEAR. 

     "THE DEFENDANT:  THEN IF IT PLEASES THE COURT I WOULD LIKE TO

  HAVE THE COURT ASSIGN ME AN ATTORNEY. 

     "THE COURT:  YOU HAVE NO CURRENT FUNDS? 

     "THE DEFENDANT:  I BEG YOUR PARDON? 

     "THE COURT:  YOU HAVE NO CURRENT FUNDS AT ALL? 

     "THE DEFENDANT:  NO, SIR. 

     "THE COURT:  ARE YOU WORKING? 

  "THE DEFENDANT:  NO, SIR. 

     "THE COURT:  I'M GOING TO ASSIGN MR. JESSE BERMAN AT THIS
POINT."  AT TRIAL IT WAS DETERMINED THAT RESPONDENT NEVER MADE THESE
AVERMENTS UNDER OATH, EITHER ORALLY OR BY PRESENTMENT OF WRITTEN
AFFIDAVIT. 

/2/  RESPONDENT CONTENDED AT TRIAL THAT HE UNDERSTOOD HIMSELF TO BE
MERELY THE CUSTODIAN OF THE FOUR "TOTTEN TRUSTS," WHICH HE SAID
BELONGED TO HIS CHILDREN.  THE TRIAL JUDGE RULED OUT OF THE JURY'S
PRESENCE, THAT THERE WAS SUFFICIENT PROOF OF FALSITY TO WARRANT THE
ADMISSION OF HIS STATEMENTS, THAT THE FALSE STATEMENTS WERE RELEVANT TO
ISSUES ON TRIAL, AND THAT THE PREJUDICIAL EFFECT OF THE STATEMENTS DID
NOT OUTWEIGH THEIR PROBATIVE VALUE.  THE JURY WAS ULTIMATELY INSTRUCTED
THAT IT SHOULD CONSIDER RESPONDENT'S FALSE STATEMENTS ONLY FOR THE
LIMITED PURPOSES, AS SET FORTH IN TEXT, FOR WHICH THEY WERE
INTRODUCED. 

/3/  THE GROUNDS FOR ADMITTING RESPONDENT'S FALSE STATEMENTS, SUPRA,
AT 241, MAKE IT CLEAR BY NECESSARY INPLICATION THAT THE TRIAL JUDGE-
WHO ALONE DECIDES THE QUESTION OF RELEVANCY--THOUGHT RESPONDENT HAD
WILFULLY MADE FALSE REPRESENTATIONS.  RESPONDENT'S WITHDRAWALS FROM THE
AFOREMENTIONED ACCOUNTS SHORTLY AFTER HE DENIED HAVING CURRENT FUNDS
LEND SUPPORT TO THAT VIEW. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

MR. JUSTICE HARLAN SPEAKING FOR THE COURT IN SIMMONS V. UNITED
STATES, 390 U.S. 377, 394, SAID:  "(WE FIND IT INTOLERABLE THAT ONE
CONSTITUTIONAL RIGHT SHOULD HAVE TO BE SURRENDERED IN ORDER TO ASSERT
ANOTHER."  IN THAT CASE AN ACCUSED TESTIFIED ON A MOTION TO SUPPRESS
EVIDENCE IN ORDER TO PROTECT HIS FOURTH AMENDMENT RIGHTS BUT LATER
DISCOVERED THAT THE TESTIMONY WOULD BE USED BY THE PROSECUTION AGAINST
HIM.  WE SAID IT WAS "INTOLERABLE THAT ONE CONSTITUTIONAL RIGHT SHOULD
HAVE TO BE SURRENDERED IN ORDER TO ASSERT ANOTHER," IBID.  WE HELD THAT
THE TESTIMONY THE DEFENDANT GAVE ON A MOTION TO SUPPRESS EVIDENCE ON
FOURTH AMENDMENT GROUNDS WAS NOT ADMISSIBLE AGAINST HIM AT TRIAL ON THE
ISSUE OF GUILT "UNLESS HE MAKES NO OBJECTION."  IBID. 

IF AN ACCUSED IN ORDER TO PROTECT HIS FOURTH AMENDMENT RIGHT GIVES
TESTIMONY THAT IS PROTECTED BY THE SELF-INCRIMINATION CLAUSE OF THE
FIFTH AMENDMENT, I FAIL TO SEE HOW TESTIMONY PROTECTIVE OF SIXTH
AMENDMENT RIGHTS IS ON A LOWER LEVEL.  IN UNITED STATES V. JACKSON, 390
U.S. 570, WE HELD UNENFORCEABLE PROVISIONS OF A FEDERAL ACT WHICH MADE
THE DEATH PENALTY APPLICABLE ONLY TO THOSE WHO CONTESTED THEIR GUILT
BEFORE A JURY.  THE "INEVITABLE EFFECT"  IN THAT CASE WAS "TO
DISCOURAGE ASSERTION OF THE FIFTH AMENDMENT RIGHT NOT TO PLEAD GUILTY
AND TO DETER EXERCISE OF THE SIXTH AMENDMENT RIGHT TO DEMAND A JURY
TRIAL."  ID., AT 581. 

THE SUGGESTION THAT NO SIXTH AMENDMENT RIGHT EXISTED IN THIS CASE
DOES NOT FIND SUPPORT IN THE RECORD.  THERE IS NO FINDING AS TO THE
AMOUNT OF THE FUNDS RESTRICTED AND BEYOND THE REACH OF THE RESPONDENT,
OR AS TO WHAT FREE FUNDS HE ACTUALLY HAD OR AS TO WHAT WERE HIS
OBLIGATIONS.  YET ALL OF THESE FACTS WOULD BE NECESSARY BEFORE WE COULD
REACH THAT CONCLUSION.  THIS COURT IN PASSING ON APPLICATIONS TO
PROCEED IN FORMA PAUPERIS LOOKS NOT ONLY TO WHAT THE APPLICANT'S INCOME
AND/OR CASH POSITION IS BUT WHAT HIS PERIODIC LIABILITIES ARE.  THUS A
PERSON WITH AN INCOME OF $600 A MONTH HAS BEEN ALLOWED TO PROCEED IN
FORMA PAUPERIS WHERE HIS PRESENT OBLIGATIONS CONSUME HIS ENTIRE
INCOME.  THE MERE FACT THAT ONE HAS MONEY IN THE BANK IS THEREFORE NOT
ENOUGH TO MAKE FRIVOLOUS HIS CLAIM OF INDIGENCY FOR PURPOSES OF IN
FORMA PAUPERIS.  WE MAY NOT THEREFORE RESPONSIBLY SAY THERE WAS NO
GENUINE SIXTH AMENDMENT RIGHT TO COUNSEL IN THIS CASE. 

MOREOVER, WHETHER ONE HAS A BONA FIDE CLAIM TO APPOINTED COUNSEL IS
A LEGAL POINT WHICH LAYMEN SHOULD NOT HAVE TO DETERMINE BEFORE THEY MAY
SPEAK WITHOUT FEAR.  THE FUNDS HERE INVOLVED WERE IN TOTTEN TRUSTS AND
KAHAN THOUGHT THAT HE HAD NO ACCESS TO THEM UNDER THE LAW.  ONE SHOULD
NOT HAVE TO SEEK ADVICE ON POINTS OF LAW NOR HAVE AN AUDIT CONDUCTED ON
HIS PERSONAL FINANCES BEFORE HE FEELS FREE IN ASSERTING HIS SIXTH
AMENDMENT RIGHTS.  STATEMENTS MADE IN GOOD FAITH MAY LATER TURN OUT TO
BE FALSE AND ALL THOSE WHO UTTER THE STATEMENTS RUN THE RISK THAT THEY
MAY NOT BE ABLE TO CONVINCE OTHERS OF THEIR SINCERITY.  IF "TENSION"
BETWEEN THE SIXTH AND FIFTH AMENDMENTS ARISES ONLY WHEN JUDGES, WITH
THE BENEFIT OF HINDSIGHT AND LEGAL ACUMEN NOT POSSESSED BY THE
DEFENDANT, LATER DETERMINE THE SIXTH AMENDMENT CLAIM TO BE "BONA FIDE,"
MANY INDIGENTS WITH LEGITIMATE CLAIMS TO APPOINTED COUNSEL WILL
HESITATE TO SPEAK FREELY IN ASSERTING THE CLAIM.  AS THE COURT BELOW
PHRASED IT, THE DEFENDANT WILL BE "FORCED TO GAMBLE HIS RIGHT TO REMAIN
SILENT AGAINST HIS NEED FOR COUNSEL OR HIS UNDERSTANDING OF THE
REQUIREMENTS FOR APPOINTMENT OF COUNSEL."  479 F.2D 290, 292. 

THE PRINCIPLE OF SIMMONS AND JACKSON IS APPLICABLE, IF REASON IS TO
PREVAIL, WHERE RIGHTS UNDER THE FIFTH AMENDMENT ARE ENTANGLED WITH
RIGHTS UNDER EITHER THE FOURTH OR THE SIXTH AMENDMENT.  THERE IS SUCH
ENTAGLEMENT HERE, FOR THE FIFTH AMENDMENT IS AN APPLICABLE TO EVIDENCE
CONCERNING CRIMES WITH WHICH THE ACCUSED HAS NOT YET BEEN CHARGED AS IT
IS TO EVIDENCE CONCERNING CRIMES ALREADY CHARGED.  THAT WAS SO HELD BY
A UNANIMOUS COURT IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562: 

     "IT IS BROADLY CONTENDED ON THE PART OF THE APPELLEE THAT A

  WITNESS IS NOT ENTITLED TO PLEAD THE PRIVILEGE OF SILENCE, EXCEPT

  IN A CRIMINAL CASE AGAINST HIMSELF; BUT SUCH IS NOT THE LANGUAGE

OF THE CONSTITUTION.  ITS PROVISION IS THAT NO PERSON SHALL BE

  COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF. 

  THIS PROVISION MUST HAVE A BROAD CONSTRUCTION IN FAVOR OF THE

  RIGHT WHICH IT WAS INTENDED TO SECURE.  THE MATTER UNDER

  INVESTIGATION BY THE GRAND JURY IN THIS CASE WAS A CRIMINAL

  MATTER, TO INQUIRE WHETHER THERE HAD BEEN A CRIMINAL VIOLATION OF

  THE INTERSTATE COMMERCE ACT.  IF COUNSELMAN HAD BEEN GUILTY OF

  THE MATTERS INQUIRED OF IN THE QUESTIONS WHICH HE REFUSED TO

  ANSWER, HE HIMSELF WAS LIABLE TO CRIMINAL PROSECUTION UNDER THE

  ACT.  THE CASE BEFORE THE GRAND JURY WAS, THEREFORE, A CRIMINAL

  CASE.  THE REASON GIVEN BY COUNSELMAN FOR HIS REFUSAL TO ANSWER

  THE QUESTIONS WAS THAT HIS ANSWERS MIGHT TEND TO CRIMINATE HIM,

  AND SHOWED THAT HIS APPREHENSION WAS THAT, IF HE ANSWERED THE

  QUESTIONS TRULY AND FULLY (AS HE WAS BOUND TO DO IF HE SHOULD

  ANSWER THEM AT ALL), THE ANSWERS MIGHT SHOW THAT HE HAD COMMITTED

  A CRIME AGAINST THE INTERSTATE COMMERCE ACT, FOR WHICH HE MIGHT

  BE PROSECUTED.  HIS ANSWERS, THEREFORE, WOULD BE TESTIMONY

  AGAINST HIMSELF, AND HE WOULD BE COMPELLED TO GIVE THEM IN A

  CRIMINAL CASE." 

THE COURT OF APPEALS WAS CORRECT IN ITS APPLICATION OF THIS ISSUE
AND I WOULD AFFIRM. 

MR. JUSTICE MARSHALL, DISSENTING.     AS THE COURT'S PER CURIAM
OPINION INDICATES, THERE IS A TENSION BETWEEN THE SIXTH AMENDMENT RIGHT
TO APPOINTED COUNSEL FOR INDIGENT DEFENDANTS AND THE FIFTH AMENDMENT
COMPARABLE TO THE TENSION BETWEEN THE FOURTH AND FIFTH AMENDMENTS
RECOGNIZED IN SIMMONS V. UNITED STATES, 390 U.S. 377 (1968).  THE
SITUATION PRESENTED IN UNITED STATES V. BRANKER, 418 F.2D 378 (CA2
1969), IS INSTRUCTIVE.  THERE, IN TRUTHFULLY REVEALING HIS FINANCIAL
SITUATION AT THE PRETRIAL INDIGENCY HEARING, THE DEFENDANT DISCLOSED
THAT HE HAD RECEIVED $250 FROM A COCONSPIRATOR.  IN ORDER TO ASSERT HIS
SIXTH AMENDMENT RIGHT TO COUNSEL, IN OTHER WORDS, HE WAS FORCED TO
PROVIDE POTENTIALLY INCRIMINATING EVIDENCE.   AS I VIEW THE MATTER,
THIS TENSION BETWEEN THE FIFTH AND SIXTH AMENDMENTS COULD BE RESOLVED
IN ONE OF TWO WAYS.  THE FIRST ALTERNATIVE IS TO PERMIT THE DEFENDANT
SEEKING COUNSEL AS AN INDIGENT TO LIE ABOUT HIS FINANCIAL SITUATION
WHEREVER THE TRUTH MIGHT BE INCRIMINATING.  AS A SECOND ALTERNATIVE, WE
COULD REQUIRE THE DEFENDANT SEEKING APPOINTMENT OF COUNSEL TO TELL THE
TRUTH AT THE INDIGENCY HEARING, AND SUBJECT HIM TO SANCTIONS FOR HIS
WILLFUL AND KNOWING FAILURE TO DO SO, BUT BAR USE OF ANY INCRIMINATING
INFORMATION SO REVEALED. 

I, FOR ONE, DO NOT CONSIDER THE FIRST ALTERNATIVE TO BE ACCEPTABLE. 
NOR DID THE COURT OF APPEALS IN THIS CASE, FOR IT CONCEDED THAT IF THE
DEFENDANT WILLFULLY MISREPRESENTED HIS ASSETS AT THE PRETRIAL HEARING,
HE COULD BE PROSECUTED FOR PERJURY OR FALSE STATEMENT.  479 F.2D 290,
292 N. 3 (CA2 1973).  SEE, E.G., UNITED STATES V. BURRELL, 470 F.2D 113
(CA2 1972).  LIKEWISE, RESPONDENT'S MEMORANDUM IN OPPOSITION DISCLAIMS
ANY "RIGHT TO LIE" AT THE PRETRIAL HEARING. 

IN VIEW OF ITS CONCESSION THAT THE DEFENDANT CAN BE PENALIZED FOR
WILLFULLY AND KNOWINGLY FALSIFYING INFORMATION AT A PRETRIAL
SUPPRESSION HEARING, I CANNOT UNDERSTAND THE COURT OF APPEALS'
CONCLUSION THAT THIS SANCTION CAN ONLY TAKE THE FORM OF A SEPARATE
PROSECUTION FOR PERJURY.  IF THE DEFENDANT'S WILLFULLY FALSE STATEMENT
CAN BE USED AGAINST HIM AT A SUBSEQUENT PERJURY TRIAL, I SEE NO REASON
WHY IT CANNOT BE USED AGAINST HIM AT HIS PENDING CRIMINAL TRIAL. 

MY BROTHER DOUGLAS RAISES THE POSSIBILITY THAT A DEFENDANT WILL FAIL
TO EXERCISE HIS SIXTH AMENDMENT RIGHTS FOR FEAR THAT A COURT MAY LATER
FIND THE SIXTH AMENDMENT CLAIM NOT BONA FIDE OR HIS STATEMENTS NOT MADE
IN GOOD FAITH.  THIS REASONING WOULD NOT ONLY CONTROL THE PRESENT CASE,
HOWEVER, BUT WOULD ALSO BAR THE GOVERNMENT FROM BRINGING A PERJURY
PROSECUTION AGAINST A DEFENDANT WHO KNOWINGLY AND WILLFULLY LIES UNDER
OATH AT HIS PRETRIAL HEARING.  FOR IT COULD LIKEWISE BE ARGUED THAT A
DEFENDANT WILL FAIL TO EXERCISE HIS SIXTH AMENDMENT RIGHTS FOR FEAR
THAT A JURY MAY LATER DETERMINE THAT HE COMMITTED PERJURY AT THE
INDIGENCY HEARING. 

THE PROBLEM IS NOT A FRIVOLOUS ONE, BUT ITS SOLUTION DOES NOT LIE,
IN MY VIEW, IN PERMITTING THE DEFENDANT TO PERJURE HIMSELF AND REMAIN
FREE FROM SANCTION.  RATHER, IT LIES IN PROCEDURES TO ENSURE THAT THE
IMPOSITION OF SANCTIONS IN APPROPRIATE CASES WILL NOT IN FACT
DISCOURAGE GOOD-FAITH ASSERTIONS OF SIXTH AMENDMENT CLAIMS.  WITH
RESPECT TO A SUBSEQUENT PERJURY PROSECUTION, THE DISCOURAGEMENT OF
LEGITIMATE SIXTH AMENDMENT CLAIMS IS MINIMIZED BY THE REQUIREMENT THAT
THE GOVERNMENT CONVINCE A JURY THAT THE DEFENDANT WILLFULLY AND
KNOWINGLY GAVE FALSE TESTIMONY.  I WOULD PROVIDE A SIMILAR PROTECTION
WHERE THE GOVERNMENT SEEKS TO USE A DEFENDANT'S ALLEGEDLY FALSE
PRETRIAL STATEMENT AS EVIDENCE AGAINST HIM AT HIS PENDING CRIMINAL
TRIAL.  WHERE SUCH STATEMENT WAS PURPORTEDLY GIVEN IN FURTHERANCE OF A
SIXTH AMENDMENT RIGHT, I WOULD BAR THE GOVERNMENT FROM INTRODUCING IT
IN EVIDENCE UNLESS THE GOVERNMENT PROVED AND THE TRIAL COURT FOUND THAT
THE DEFENDANT HAD KNOWINGLY AND WILLFULLY PROVIDED FALSE INFORMATION. 

THE SOLUTION, THEN, TO THE TENSION BETWEEN THE FIFTH AND SIXTH
AMENDMENTS IS TO REQUIRE THE DEFENDANT SEEKING APPOINTMENT OF COUNSEL
TO TELL THE TRUTH AT HIS INDIGENCY HEARING, AND TO BAR USE OF ANY
INCRIMINATING INFORMATION SO REVEALED.  THIS APPROACH IS FULLY
CONSISTENT WITH OUR FIFTH AMENDMENT CASES.  "(A) WITNESS PROTECTED BY
THE PRIVILEGE MAY RIGHTFULLY REFUSE TO ANSWER UNLESS AND UNTIL HE IS
PROTECTED AT LEAST AGAINST THE USE OF HIS COMPELLED ANSWERS AND
EVIDENCE DERIVED THEREFROM IN ANY SUBSEQUENT CRIMINAL CASE IN WHICH HE
IS A DEFENDANT."  LEFKOWITZ V. TURLEY, 414 U.S. 70, 78 (1973).  WHERE
THE GOVERNMENT REQUIRES THE DEFENDANT TO SPEAK IN ORDER TO ASSERT HIS
SIXTH AMENDMENT RIGHTS, IT MUST SHELTER HIM WITH THE IMMUNITY PROVIDED
BY THE FIFTH AMENDMENT FOR SUCH COMPELLED TESTIMONY.  CF. UNITED STATES
V. BRANKER, SUPRA. 

APPLYING THESE PRINCIPLES TO THE PRESENT CASE, I BELIEVE
RESPONDENT'S CONVICTION WAS PROPERLY REVERSED BY THE COURT OF APPEALS. 
AT TRIAL, KAHAN CLAIMED TO HAVE UNDERSTOOD THAT THE TOTTEN TRUST
ACCOUNTS HE OPENED BELONGED TO HIS CHILDREN, WITH HIMSELF MERELY THE
CUSTODIAN.  SEE 479 F.2D, AT 292 N. 3 AND 296 N. 3.  THE DISTRICT COURT
NEVER MADE A FINDING, BEFORE ADMITTING EVIDENCE OF KAHAN'S PRETRIAL
STATEMENTS, THAT KAHAN HAD WILLFULLY MISREPRESENTED HIS FINANCIAL
SITUATION AND IN FACT KNEW THAT THE FUNDS IN THE TOTTEN TRUSTS WERE
HIS.  THE COURT FOUND SUFFICIENT PROOF THAT THE STATEMENTS WERE FALSE
TO WARRANT THEIR ADMISSION, BUT THIS FINDING DOES NOT SATISFY THE TEST
I WOULD APPLY.  THE MERE FACT THAT A FALSE STATEMENT WAS MADE IS NOT
ENOUGH.  STATEMENTS WHICH TURN OUT TO BE FALSE ARE OFTEN MADE IN THE
GOOD-FAITH BUT MISTAKEN BELIEF THEY ARE CORRECT, CF. NEW YORK TIMES CO.
V. SULLIVAN, 376 U.S. 254 (1964), AND WE SHOULD BE CAUTIOUS NOT TO
PENALIZE GOOD-FAITH ASSERTIONS OF SIXTH AMENDMENT RIGHTS. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :





















LEWIS V. CITY OF NEW ORLEANS, 415 U.S. 130 


       APPEAL FROM THE SUPREME COURT OF LOUISIANA

  NO. 72 - 6156.  ARGUED DECEMBER 10, 1973--DECIDED FEBRUARY

           20, 1974; 263 LA. 809, 269 SO.2D 450, REVERSED AND

           REMANDED. 


    ON REMAND FROM THIS COURT FOR RECONSIDERATION IN LIGHT OF

  GOODING V. WILSON, 405 U.S. 518, APPELLANT'S CONVICTION OF

  VIOLATING A NEW ORLEANS ORDINANCE MAKING IT UNLAWFUL "TO CURSE OR

  REVILE OR TO USE OBSECENE OR OPPROBRIOUS LANGUAGE TOWARD OR WITH

  REFERENCE TO" A POLICE OFFICER WHILE IN PERFORMANCE OF HIS DUTIES

  WAS AGAIN SUSTAINED BY THE LOUISIANA SUPREME COURT, WHICH DID NOT

  NARROW OR REFINE THE WORDS OF THE ORDINANCE ALTHOUGH STATING THAT

IT WAS LIMITED TO "FIGHTING WORDS"  UTTERED TO SPECIFIC PERSONS

  AT A SPECIFIC TIME.  HELD:  THE ORDINANCE, AS THUS CONSTRUED, IS

  SUSCEPTIBLE OF APPLICATION TO PROTECTED SPEECH, AND THEREFORE IS

  OVERBROAD IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS AND

  FACIALLY INVALID.  THE ORDINANCE PLAINLY HAS A BROADER SWEEP THAN

  THE CONSTITUTIONAL DEFINITION OF "FIGHTING WORDS" AS BEING WORDS

  "WHICH BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE

AN IMMEDIATE BREACH OF THE PEACE."  CHAPLINSKY V. NEW HAMPSHIRE,

  315 U.S. 568, 572; GOODING V. WILSON, SUPRA, AT 525, SINCE, AT

  THE LEAST, "OPPROBRIOUS LANGUAGE"  EMBRACES WORDS THAT DO NOT

  FALL UNDER THAT DEFINITION, THE WORD "OPPROBRIOUS"  EMBRACING

  WORDS "CONVEYING OR INTENDED TO CONVEY DISGRACE,"  IBID.  IT IS

  IMMATERIAL WHETHER THE WORDS APPELLANT USED MIGHT BE PUNISHABLE

  UNDER A PROPERLY LIMITED ORDINANCE.  PP. 131 - 134. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, STEWART, WHITE, AND MARSHALL, JJ., JOINED.  POWELL, J.,

  FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 134. 

  BLACKMUN, J., FILED A DISSENTING OPINION, IN WHICH BURGER, C.J.,

AND REHNQUIST, J., JOINED, POST, P. 136. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

UPON THE LOUISIANA SUPREME COURT'S RECONSIDERATION OF THIS CASE IN
LIGHT OF GOODING V. WILSON, 405 U.S. 518 (1972), PURSUANT TO OUR
REMAND, 408 U.S. 913 (1972), THAT COURT, THREE JUDGES DISSENTING, AGAIN
SUSTAINED APPELLANT'S CONVICTION UPON A CHARGE OF ADDRESSING SPOKEN
WORDS TO A NEW ORLEANS POLICE OFFICER IN VIOLATION OF NEW ORLEANS
ORDINANCE 828 M.C.S. PARA. 49 - 7, 263 LA. 809, 269 SO.2D 450 (1972). 
/1/  WE NOTED PROBABLE JURISDICTION, 412 U.S. 926 (1973), AND WE
REVERSE.  WE HOLD THAT PARA. 49 - 7, AS CONSTRUED BY THE LOUISIANA
SUPREME COURT, IS OVERBROAD IN VIOLATION OF THE FIRST AND FOURTEENTH
AMENDMENTS AND IS THEREFORE FACIALLY INVALID.  SECTION 49 - 7
PROVIDES: 

"IT SHALL BE UNLAWFUL AND A BREACH OF THE PEACE FOR ANY PERSON

  WANTONLY TO CURSE OR REVILE OR TO USE OBSCENE OR OPPROBRIOUS

  LANGUAGE TOWARD OR WITH REFERENCE TO ANY MEMBER OF THE CITY

  POLICE WHILE IN THE ACTUAL PERFORMANCE OF HIS DUTY." 

THE LOUISIANA SUPREME COURT ON REMAND DID NOT REFINE OR NARROW THESE
WORDS, BUT TOOK THEM AS THEY STOOD:  "THE PROSCRIPTIONS ARE NARROW AND
SPECIFIC--WANTONLY CURSING, REVILING, AND USING OBSCENE OR OPPROBRIOUS
LANGUAGE."  263 LA., AT 827, 269 SO.2D, AT 456.  NONETHELESS, THAT
COURT TOOK THE POSITION THAT, AS WRITTEN, "IT (PARA. 49 - 7) IS
NARROWED TO 'FIGHTING WORDS' UTTERED TO SPECIFIC PERSONS AT A SPECIFIC
TIME . . ."  ID., AT 826, 269 SO.2D, AT 456.  BUT PARA. 49 - 7 PLAINLY
HAS A BROADER SWEEP THAN THE CONSTITUTIONAL DEFINITION OF "FIGHTING
WORDS" ANNOUNCED IN CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572
(1942), AND REAFFIRMED IN GOODING V. WILSON, SUPRA, AT 522, NAMELY,
"THOSE (WORDS) WHICH BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO
INCITE AN IMMEDIATE BREACH OF THE PEACE."  THAT THE LOUISIANA SUPREME
COURT CONTEMPLATED A BROADER REACH OF THE ORDINANCE IS EVIDENT FROM ITS
EMPHASIS UPON THE CITY'S JUSTIFICATION FOR REGULATION OF "THE CONDUCT
OF ANY PERSON TOWARDS A MEMBER OF THE CITY POLICE WHILE IN THE ACTUAL
PERFORMANCE OF HIS DUTY . . . PERMITTING THE CURSING OR REVILING OF OR
USING OBSCENE OR OPPROBRIOUS WORDS TO A POLICE OFFICER WHILE IN THE
ACTUAL PERFORMANCE OF HIS DUTY WOULD BE UNREASONABLE AND BASICALLY
INCOMPATIBLE WITH THE OFFICER'S ACTIVITIES AND THE PLACE WHERE SUCH
ACTIVITIES ARE PERFORMED."  263 LA., AT 825, 269 SO.2D, AT 456.  /2/ 

AT THE LEAST, THE PROSCRIPTION OF THE USE OF "OPPROBRIOUS LANGUAGE,"
EMBRACES WORDS THAT DO NOT "BY THEIR VERY UTTERANCE INFLICT UNJURY OR
TEND TO INCITE AN IMMEDIATE BREACH OF THE PEACE."  THAT WAS OUR
CONCLUSION AS TO THE WORD "OPPROBRIOUS" IN THE GEORGIA STATUTE HELD
UNCONSTITUTIONAL IN GOODING V. WILSON, WHERE WE FOUND THAT THE COMMON
DICTIONARY DEFINITION OF THAT TERM EMBRACED WORDS "CONVEYING OR
INTENDED TO CONVEY DISGRACE" AND THEREFORE THAT THE TERM WAS NOT
LIMITED TO WORDS WHICH "BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND
TO INCITE AN IMMEDIATE BREACH OF THE PEACE."  405 U.S., AT 525.  THE
SAME CONCLUSION IS COMPELLED AS TO THE REACH OF THE TERM IN PARA. 49 -
7, FOR WE FIND NOTHING IN THE OPINION OF THE LOUISIANA SUPREME COURT
THAT MAKES ANY MEANINGFUL ATTEMPT TO LIMIT OR PROPERLY DEFINE--AS
LIMITED BY CHAPLINSKY AND GOODING--"OPPROBRIOUS," OR INDEED ANY OTHER
TERM IN PARA. 49 - 7.  IN THAT CIRCUMSTANCE IT IS IMMATERIAL WHETHER
THE WORDS APPELLANT USED MIGHT BE PUNISHABLE UNDER A PROPERLY LIMITED
STATUTE OR ORDINANCE.  WE REAFFIRM OUR HOLDING IN GOODING V. WILSON,
SUPRA, AT 520 - 521, IN THIS RESPECT:

  IT MATTERS NOT THAT THE WORDS (APPELLANT) USED MIGHT HAVE BEEN
CONSTITUTIONALLY PROHIBITED

  UNDER A NARROWLY AND PRECISELY DRAWN STATUTE.  AT LEAST WHEN
STATUTES REGULATE OR PROSCRIBE

  SPEECH AND WHEN 'NO READILY APPARENT CONSTRUCTION SUGGESTS ITSELF
AS A VEHICLE FOR

  REHABILITATING THE STATUTES IN A SINGLE PROSECUTION,' . . . THE
TRANSCENDENT VALUE TO ALL

  SOCIETY OF CONSTITUTIONALLY PROTECTED EXPRESSION IS DEEMED TO
JUSTIFY ALLOWING 'ATTACKS ON

  OVERLY BROAD STATUTES WITH NO REQUIREMENT THAT THE PERSON MAKING
THE ATTACK DEMONSTRATE THAT

  HIS OWN CONDUCT COULD NOT BE REGULATED BY A STATUTE DRAWN WITH
THE REQUISITE NARROW

SPECIFICITY' . . . THIS IS DEEMED NECESSARY BECAUSE PERSONS WHOSE
EXPRESSION IS

  CONSTITUTIONALLY PROTECTED MAY WELL REFRAIN FROM EXERCISING THEIR
RIGHTS FOR FEAR OF CRIMINAL

  SANCTIONS PROVIDED BY A STATUTE SUSCEPTIBLE OF APPLICATION TO
PROTECTED EXPRESSION." 

IN SUM, PARA. 49 - 7 PUNISHES ONLY SPOKEN WORDS.  IT CAN THEREFORE
WITHSTAND APPELLANT'S ATTACK UPON ITS FACIAL CONSTITUTIONALITY ONLY IF,
AS AUTHORITATIVELY CONSTRUED BY THE LOUISIANA SUPREME COURT, IT IS NOT
SUSCEPTIBLE OF APPLICATION TO SPEECH, ALTHOUGH VULGAR OR OFFENSIVE,
THAT IS PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS.  COHEN V.
CALIFORNIA, 403 U.S. !5, 18 - 22 (1971); TERMINIELLO V. CHICAGO, 337
U.S. 1, 4 - 5 (1949); GOODING V. WILSON, SUPRA, AT 520.  SINCE PARA. 49
- 7, AS CONSTRUED BY THE LOUISIANA SUPREME COURT, IS SUSCEPTIBLE OF
APPLICATION TO PROTECTED SPEECH, THE SECTION IS CONSTITUTIONALLY
OVERBROAD AND THEREFORE IS FACIALLY INVALID. 

THE JUDGMENT OF THE LOUISIANA SUPREME COURT IS REVERSED AND THE CASE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  ON JANUARY 3, 1970, APPELLANT AND HER HUSBAND WERE IN THEIR
PICKUP TRUCK FOLLOWING A POLICE PATROL CAR THAT WAS TAKING THEIR YOUNG
SON TO A POLICE STATION AFTER HIS ARREST.  AN OFFICER BERNER IN ANOTHER
PATROL CAR INTERCEPTED AND STOPPED THE TRUCK.  BERNER LEFT HIS CAR AND
ACCORDING TO HIS TERTIMONY, ASKED THE HUSBAND FOR HIS DRIVER'S
LICENSE.  WORDS WERE EXCHANGED BETWEEN BERNER AND APPELLANT AND BERNER
ARRESTED APPELLANT ON A CHARGE OF VIOLATING PARA. 49 - 7.  THE PARTIES'
RESPECTIVE VERSIONS OF THE WORDS EXCHANGED WERE IN SHARP
CONTRADICTION.  BERNER TESTIFIED THAT APPELLANT LEFT THE TRUCK AND
"STARTED YELLING AND SCREAMING THAT I HAD HER SON OR DID SOMETHING TO
HER SON AND SHE WANTED TO KNOW WHERE HE WAS.  . . . SHE SAID, 'YOU GOD
DAMN M. F. POLICE--I AM GOING TO (THE SUPERINTENDENT OF POLICE) ABOUT
THIS.'"  APP. 8.  APPELLANT'S HUSBAND TESTIFIED THAT BERNER'S FIRST
WORDS WERE "LET ME SEE YOUR GOD DAMNED LICENSE.  I'LL SHOW YOU THAT YOU
CAN'T FOLLOW THE POLICE ALL OVER THE STREETS.'  . . . AFTER (APPELLANT)
GOT OUT AND SAID 'OFFICER I WANT TO FIND OUT ABOUT MY SON.'  HE SAID
'YOU GET IN THE CAR WOMAN.  GET YOUR BLACK ASS IN THE GOD DAMNED CAR OR
I WILL SHOW YOU SOMETHING.'"  APP. 27.  APPELLANT DENIED THAT SHE HAD
USED "ANY PROFANITY TOWARD THE OFFICER."  APP. 37.  THE MUNICIPAL JUDGE
CREDITED BERNER'S TESTIMONY AND DISBELIEVED APPELLANT AND HER HUSBAND. 

/2/  WE HAVE NO OCCASION IN LIGHT OF THE RESULT REACHED TO ADDRESS
THE CONFLICT BETWEEN THIS VIEW AND THAT OF THE FRAMERS OF THE MODEL
PENAL CODE THAT SUGGESTS THAT EVEN "FIGHTING WORDS" AS DEFINED BY
CHAPLINSKY SHOULD NOT BE PUNISHED WHEN ADDRESSED TO A POLICE OFFICER
TRAINED TO EXERCISE A HIGHER DEGREE OF RESTRAINT THAN THE AVERAGE
CITIZEN.  SEE MODEL PENAL CODE PARA. 250.1, COMMENT 4 (TENT.  DRAFT NO.
13, 1961). 

MR. JUSTICE POWELL, CONCURRING IN THE RESULT. 

I PREVIOUSLY CONCURRED IN THE REMAND OF THIS CASE, 408 U.S. 913
(1972), BUT ONLY FOR RECONSIDERATION IN LIGHT OF CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568 (1942).  PURSUANT TO THE REMAND ORDER, WE NOW
HAVE THE LOUISIANA SUPREME COURT'S DECISION CONSTRUING NEW ORLEANS
ORDINANCE 828 M.C.S. PARA. 49 - 7.  I AGREE WITH THE COURT'S CONCLUSION
TODAY THAT THE LOUISIANA SUPREME COURT "DID NOT REFINE OR NARROW THESE
WORDS (OF THE ORDINANCE), BUT TOOK THEM AS THEY STOOD."  ANTE, AT 132. 
IN CONCLUSORY LANGUAGE, THAT COURT CONSTRUED THE ORDINANCE TO CREATE A
PER SE RULE:  WHENEVER "OBSCENE OR OPPROBRIOUS LANGUAGE" IS USED
"TOWARD OR WITH REFERENCE TO ANY MEMBER OF THE CITY POLICE WHILE IN THE
ACTUAL PERFORMANCE OF HIS DUTY," SUCH LANGUAGE CONSTITUTES "FIGHTING
WORDS" AND HENCE A VIOLATION WITHOUT REGARD TO THE FACTS AND
CIRCUMSTANCES OF A PARTICULAR CASE.  AS SO CONSTRUED, THE ORDINANCE IS
FACIALLY OVERBROAD. 

QUITE APART FROM THE AMBIGUITY INHERENT IN THE TERM "OPPROBRIOUS,"
WORDS MAY OR MAY NOT BE "FIGHTING WORDS," DEPENDING UPON THE
CIRCUMSTANCES OF THEIR UTTERANCE.  IT IS UNLIKELY, FOR EXAMPLE, THAT
THE WORDS SAID TO HAVE BEEN USED HERE WOULD HAVE PRECIPITATED A
PHYSICAL CONFRONTATION BETWEEN THE MIDDLE-AGED WOMAN WHO SPOKE THEM AND
THE POLICE OFFICER IN WHOSE PRESENCE THEY WERE UTTERED.  THE WORDS MAY
WELL HAVE CONVEYED ANGER AND FRUSTRATION WITHOUT PROVOKING A VIOLENT
REACTION FROM THE OFFICER.  MOREOVER, AS NOTED IN MY PREVIOUS
CONCURRENCE, A PROPERLY TRAINED OFFICER MAY REASONABLY BE EXPECTED TO
"EXERCISE A HIGHER DEGREE OF RESTRAINT" THAN THE AVERAGE CITIZEN, AND
THUS BE LESS LIKELY TO RESPOND BELLIGERENTLY TO "FIGHTING WORDS."  408
U.S. 913.  SEE MODEL PENAL CODE PARA. 250.1, COMMENT 4 (TENT.  DRAFT
NO. 13, 1961). 

THIS ORDINANCE, AS CONSTRUED BY THE LOUISIANA SUPREME COURT, CONFERS
ON POLICE A VIRTUALLY UNRESTRAINED POWER TO ARREST AND CHARGE PERSONS
WITH A VIOLATION.  MANY ARRESTS ARE MADE IN "ONE-ON-ONE" SITUATIONS
WHERE THE ONLY WITNESSES ARE THE ARRESTING OFFICER AND THE PERSON
CHARGED.  ALL THAT IS REQUIRED FOR CONVICTION IS THAT THE COURT ACCEPT
THE TESTIMONY OF THE OFFICER THAT OBSCENE OR OPPROBRIOUS LANGUAGE HAD
BEEN USED TOWARD HIM WHILE IN PERFORMANCE OF HIS DUTIES.  /1/  INDEED,
THE LANGUAGE NEED NOT BE ADDRESSED DIRECTLY TO THE OFFICER SINCE THE
ORDINANCE IS VIOLATED EVEN IF THE OBJECTIONABLE LANGUAGE IS USED ONLY
"WITH REFERENCE TO ANY MEMBER OF THE CITY POLICE." 

CONTRARY TO THE CITY'S ARGUMENT, IT IS UNLIKELY THAT LIMITING THE
ORDINANCE'S APPLICATION TO GENUINE "FIGHTING WORDS" WOULD BE
INCOMPATIBLE WITH THE FULL AND ADEQUATE PERFORMANCE OF AN OFFICER'S
DUTIES.  IN ARRESTS FOR THE MORE COMMON STREET CRIMES (E.G., ROBBERY,
ASSAULT, DISORDERLY CONDUCT, RESISTING ARREST), IT IS USUALLY
UNNECESSARY THAT THE PERSON ALSO BE CHARGED WITH THE LESS SERIOUS
OFFENSE OF ADDRESSING OBSCENE WORDS TO THE OFFICER.  THE PRESENT TYPE
OF ORDINANCE TENDS TO BE INVOKED ONLY WHERE THERE IS NO OTHER VALID
BASIS FOR ARRESTING AN OBJECTIONABLE OR SUSPICIOUS PERSON.  THE
OPPORTUNITY FOR ABUSE, ESPECIALLY WHERE A STATUTE HAS RECEIVED A
VIRTUALLY OPEN-ENDED INTERPRETATION, IS SELF-EVIDENT. 

I THEREFORE CONCUR IN THE RESULT. 

/1/  THE FACTS IN THIS CASE, AND PARTICULARLY THE DIRECT CONFLICT OF
TESTIMONY AS TO "WHO SAID WHAT," WELL ILLUSTRATE THE POSSIBILITY OF
ABUSE.  ANTE, AT 131 N. 1. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

MR. JUSTICE HOLMES APTLY OBSERVED: 

     "ALL RIGHTS TEND TO DECLARE THEMSELVES ABSOLUTE TO THEIR

  LOGICAL EXTREME."  HUDSON COUNTY WATER CO. V. MC CARTER, 209 U.S.

  349, 355 (1908). 

THE EXTREMES TO WHICH WE ALLOW OURSELVES TO BE MANIPULATED BY THEORY
EXTENDED TO THE END OF LOGIC IS EXEMPLIFIED BY THE COURT'S OPINION IN
THIS CASE AND IN ITS BLOOD BROTHER OF TWO YEARS AGO, GOODING V. WILSON,
405 U.S. 518 (1972).  THE "OVERBREADTH" AND "VAGUENESS" DOCTRINES, AS
THEY ARE NOW BEING APPLIED BY THE COURT, QUIETLY AND STEADILY HAVE
WORKED THEIR WAY INTO FIRST AMENDMENT PARLANCE MUCH AS SUBSTANTIVE DUE
PROCESS DID FOR THE "OLD COURT" OF THE 20'S AND 30'S.  THESE DOCTRINES
ARE BEING INVOKED INDISCRIMINATELY WITHOUT REGARD TO THE NATURE OF THE
SPEECH IN QUESTION, THE POSSIBLE EFFECT THE STATUTE OR ORDINANCE HAS
UPON SUCH SPEECH, THE IMPORTANCE OF THE SPEECH IN RELATION TO THE
EXPOSITION OF IDEAS, OR THE PURPORTED OR ASSERTED COMMUNITY INTEREST IN
PREVENTING THAT SPEECH.  AND IT IS NO HAPPENSTANCE THAT IN EACH CASE
THE FACTS ARE RELEGATED TO FOOTNOTE STATUS, CONVENIENTLY DISTANT AND IN
A LESS DISTURBING FOCUS.  THIS IS THE COMPULSION OF A DOCTRINE THAT
REDUCES OUR FUNCTION TO PARSING WORDS IN THE CONTEXT OF IMAGINARY
EVENTS.  THE RESULT IS THAT WE ARE NOT MERELY APPLYING CONSTITUTIONAL
LIMITATIONS, AS WAS INTENDED BY THE FRAMERS, AND, INDEED, AS THE
HISTORY OF OUR CONSTITUTIONAL ADJUDICATION INDICATES, BUT ARE
INVALIDATING STATE STATUTES IN WHOLESALE LOTS BECAUSE THEY "CONCEIVABLY
MIGHT APPLY TO OTHERS WHO MIGHT UTTER OTHER WORDS."  GOODING V. WILSON,
SUPRA, 405 U.S., AT 535 (DISSENTING OPINION). 

THE APPLICATION OF THIS ELLIPTICAL ANALYSIS TO GOODING AND TO THIS
CASE IS INSTRUCTIVE.  IN GOODING, OFFICERS WERE ATTEMPTING TO RESTORE
PUBLIC ACCESS TO A BUILDING WHEN THEY WERE MET BY PHYSICAL RESISTANCE
AND LOUD, PERSONAL ABUSE:  "WHITE SON OF A BITCH, I'LL KILL YOU," "YOU
SON OF A BITCH, I'LL CHOKE YOU TO DEATH," AND "YOU SON OF A BITCH, IF
YOU EVER PUT YOUR HANDS ON ME AGAIN, I'LL CUT YOU ALL TO PIECES."  THE
DEFENDANT WAS CONVICTED UNDER A GEORGIA STATUTE WHICH PROVIDED THAT ANY
PERSON "WHO SHALL, WITHOUT PROVOCATION, USE TO OR OF ANOTHER, AND IN
HIS PRESENCE . . . OPPROBRIOUS WORDS OR ABUSIVE LANGUAGE, TENDING TO
CAUSE A BREACH OF THE PEACE . . . SHALL BE GUILTY OF A MISDEMEANOR." 
THE COURT SEIZED UPON DICTIONARY DEFINITIONS AND LANGUAGE OF GEORGIA
COURT DECISIONS FROM THE TURN OF THE CENTURY.  IT CONCLUDED THAT THE
STATUTE SWEPT BEYOND THE BOUNDS OF THE "FIGHTING WORDS" LIMITATION OF
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568 (1942), DESPITE THE FACT THAT
THE LANGUAGE OF THE STATUTE VIRTUALLY TRACKED THE LANGUAGE USED BY THE
CHAPLINSKY COURT TO DESCRIBE WORDS PROPERLY SUBJECT TO SOME REGULATION,
AND WITHOUT ANY DEMONSTRATION IN REASON HOW "THE NARROW LANGUAGE OF THE
GEORGIA STATUTE HAS ANY SIGNIFICANT POTENTIAL FOR SWEEPING APPLICATION
TO SUPPRESS OR DETER IMPORTANT PROTECTED SPEECH."  405 U.S., AT 529
(BURGER, C.J., DISSENTING).     IN THE PRESENT CASE, APPELLANT AND HER
HUSBAND WERE STOPPED BY A POLICE OFFICER.  APPELLANT'S AND THE
OFFICER'S RESPECTIVE VERSIONS OF THE INCIDENT ARE CONFLICTING, BUT THE
MUNICIPAL JUDGE CREDITED THE OFFICER'S TESTIMONY.  THAT FINDING, OF
COURSE, ON THIS RECORD, IS BINDING UPON US.  THE OFFICER TESTIFIED THAT
WHILE HE WAS WAITING FOR APPELLANT'S HUSBAND TO PRODUCE HIS DRIVER'S
LICENSE, APPELLANT CAME OUT OF THEIR TRUCK "AND STARTED YELLING AND
SCREAMING THAT I HAD HER SON OR DID SOMETHING TO HER SON AND SHE WANTED
TO KNOW WHERE HE WAS.  I SAID 'LADY I DON'T HAVE YOUR SON AND I AM NOT
TALKING TO YOU.  I AM TALKING TO THIS MAN AND YOU CAN GO SIT IN THE
TRUCK.'  SHE SAID 'YOU GOD DAMN M. F. POLICE--I AM GOING TO GIARRUSSO
(THE POLICE SUPERINTENDENT) TO SEE ABOUT THIS.'  I SAID 'LADY YOU ARE
GOING TO JAIL--YOU ARE UNDER ARREST.'  SHE SAID 'YOU'RE NOT TAKING ME
TO JAIL' AND SHE STARTED TO GET BACK IN THE CAB OF THE TRUCK AND I
CAUGHT UP TO HER WHILE SHE WAS GETTING IN THE CAB.  I ATTEMPTED TO TAKE
HER AND SHE STARTED FIGHTING AND SWINGING HER ARMS."  APP. 8.  A FIGHT
ENSUED AND APPELLANT WAS SUBDUED WITH THE HELP OF ANOTHER OFFICER. 
APPELLANT WAS CHARGED WITH RESISTING ARREST AND WITH WANTONLY REVILING
THE POLICE.  SHE WAS CONVICTED ON BOTH CHARGES BUT APPEALED ONLY THE
CONVICTION OF WANTONLY REVILING THE POLICE. 

WE REMANDED THIS CASE TO THE SUPREME COURT OF LOUISIANA TO CONSTRUE
THE MEANING OF THE ORDINANCE.  /1/  408 U.S. 913 (1972).  THAT COURT,
AFTER REVIEWING THE APPLICABLE PRECEDENTS, INCLUDING CHAPLINSKY AND
GOODING, SPECIFICALLY CONSTRUED THE ORDINANCE AS "NOT OFFENSIVE TO
PROTECTED SPEECH; IT IS NARROWED TO 'FIGHTING WORDS' UTTERED TO
SPECIFIC PERSONS AT A SPECIFIC TIME; IT IS NOT OVERBROAD AND IS
THEREFORE NOT UNCONSTITUTIONAL.  . . . ANY REASONABLE MAN KNOWS WHAT IT
IS TO WANTONLY CURSE OR REVILE; . . THE SECTION DEFINITELY DOES NOT
SWEEP WITHIN ITS PROSCRIPTIONS ALL FORMS OF ABUSIVE AND DEROGATORY
SPEECH."  263 LA. 809, 826 - 827, 269 SO.2D 450, 456 (EMPHASIS IN
ORIGINAL). 

AGAIN, SETTING THE FACTS TO ONE SIDE, THIS COURT SELECTIVELY
DISSECTS THE WORDING OF THE LOUISIANA SUPREME COURT OPINION, EYES THE
WORD "OPPROBRIOUS,"  REFERS US TO ITS TREATMENT OF "OPPROBRIOUS" IN
GOODING, OBSERVES THAT "PARA.  49 - 7 PLAINLY HAS A BROADER SWEEP THAN
THE CONSTITUTIONAL DEFINITION OF 'FIGHTING WORDS' ANNOUNCED IN
CHAPLINSKY," ANTE, AT 132, AND CONCLUDES THAT "WE FIND NOTHING IN THE
OPINION OF THE LOUISIANA SUPREME COURT THAT MAKES ANY MEANINGFUL
ATTEMPT TO LIMIT OR PROPERLY DEFINE--AS LIMITED BY CHAPLINSKY AND
GOODING--'OPPROBRIOUS,' OR INDEED ANY OTHER TERM IN PARA. 49 - 7." 
ANTE, AT 133.  AND AGAIN, THE ORDINANCE IS STRUCK DOWN WITH NO
DISCUSSION OF WHETHER IT MIGHT SIGNIFICANTLY AFFECT PROTECTED SPEECH,
AND NO REASONS WHY THE STATE'S INTEREST IN PUBLIC PEACE AND THE
HARMONIOUS ADMINISTRATION OF ITS LAWS SHOULD NOT PREVAIL OVER A LONE,
INDIVIDUAL CLAIM THAT THE ORDINANCE IS UNCONSTITUTIONAL AS APPLIED TO
OTHERS.  I CANNOT RECONCILE WHAT THE COURT SAYS WITH WHAT THE LOUISIANA
SUPREME COURT HAS SAID.  I BELIEVE MY BRETHREN OF THE MAJORITY MERELY
SEEK A RESULT HERE, JUST AS I WAS CONVINCED THEY SOUGHT A RESULT IN
GOODING. 

MR. JUSTICE JACKSON WARNED OF THE DANGERS OF THIS KIND OF
CONSTITUTIONAL ANALYSIS: 

"BUT I DID NOT SUPPOSE OUR FUNCTION WAS THAT OF A COUNCIL OF
REVISION.  THE ISSUE BEFORE US IS WHETHER WHAT HAS BEEN DONE HAS
DEPRIVED THIS APPELLANT OF A CONSTITUTIONAL RIGHT.  IT IS THE LAW AS
APPLIED THAT WE REVIEW NOT THE ABSTRACT ACADEMIC QUESTIONS WHICH IT
MIGHT RAISE IN SOME MORE DOUBTFUL CASE."  SAIA V. NEW YORK, 334 U.S.
558, 571 (1948) (DISSENTING OPINION).  OVERBREADTH AND VAGUENESS IN THE
FIELD OF SPEECH, AS THE PRESENT CASE AND GOODING INDICATE, HAVE BECOME
RESULT-ORIENTED RUBBERSTAMPS ATTUNED TO THE EASY AND IMAGINED SELF
ASSURANCE THAT "ONE MAN'S VULGARITY IS ANOTHER'S LYRIC."  COHEN V.
CALIFORNIA, 403 U.S. 15, 25 (1971).  THE DANGER IS APPARENT:  INHERENT
IN THE USE OF THESE DOCTRINES AND THIS STANDARD IS A JUDUCIAL
LEGISLATIVE CONFRONTATION.  THE MORE FREQUENT OUR INTERVENTION, WHICH
OF LATE HAS BEEN UNRESTRAINED, THE MORE WE USURP THE PREROGATIVE OF
DEMOCRATIC GOVERNMENT.  INSTEAD OF APPLYING CONSTITUTIONAL LIMITATIONS,
WE DO BECOME A "COUNCIL OF REVISION."  IF THE COURT ADHERES TO ITS
PRESENT COURSE, NO STATE STATUTE OR CITY ORDINANCE WILL BE ACCEPTABLE
UNLESS IT PARROTS THE WORDING OF OUR OPINIONS. 

THIS SURELY IS NOT WHAT THE FRAMERS INTENDED AND THIS IS NOT OUR
CONSTITUTIONAL FUNCTION.  I WOULD ADHERE TO WHAT MR. JUSTICE MURPHY, A
KNOWN CHAMPION OF FIRST AMENDMENT FREEDOMS, WROTE FOR A UNANIMOUS BENCH
IN CHAPLINSKY, 315 U.S., AT 571 - 572: 

     "ALLOWING THE BROADEST SCOPE TO THE LANGUAGE AND PURPOSE OF
THE

  FOURTEENTH AMENDMENT, IT IS WELL UNDERSTOOD THAT THE RIGHT OF

  FREE SPEECH IS NOT ABSOLUTE AT ALL TIMES AND UNDER ALL

  CIRCUMSTANCES.  THERE ARE CERTAIN WELL-DEFINED AND NARROWLY

  LIMITED CLASSES OF SPEECH, THE PREVENTION AND PUNISHMENT OF WHICH

  HAVE NEVER BEEN THOUGHT TO RAISE ANY CONSTITUTIONAL PROBLEM. 

  THESE INCLUDE THE LEWD AND OBSCENE, THE PROFANE, THE LIBELOUS,

  AND THE INSULTING OR 'FIGHTING' WORDS--THOSE WHICH BY THEIR VERY

  UTTERANCE INFLICT INJURY OR TEND TO INCITE AN IMMEDIATE BREACH OF

  THE PEACE.  IT HAS BEEN WELL OBSERVED THAT SUCH UTTERANCES ARE NO

  ESSENTIAL PART OF ANY EXPOSITION OF IDEAS, AND ARE OF SUCH SLIGHT

  SOCIAL VALUE AS A STEP TO TRUTH THAT ANY BENEFIT THAT MAY BE

  DERIVED FROM THEM IS CLEARLY OUTWEIGHED BY THE SOCIAL INTEREST IN

  ORDER AND MORALITY.  'RESORT TO EPITHETS OR PERSONAL ABUSE IS NOT

  IN ANY PROPER SENSE COMMUNICATION OF INFORMATION OR OPINION

SAFEGUARDED BY THE CONSTITUTION, AND ITS PUNISHMENT AS A CRIMINAL

  ACT WOULD RAISE NO QUESTION UNDER THAT INSTRUMENT.'  CANTWELL V.

  CONNECTICUT, 310 U.S. 296, 309 - 310."  (FOOTNOTES OMITTED.) 

THE SPEECH UTTERED BY MRS. LEWIS TO THE ARRESTING OFFICER "PLAINLY"
WAS PROFANE, "PLAINLY" IT WAS INSULTING, AND "PLAINLY" IT WAS
FIGHTING.  IT THEREFORE IS WITHIN THE REACH OF THE ORDINANCE, AS
NARROWED BY LOUISIANA'S HIGHEST COURT.  THE ORDINANCE, MOREOVER, POSES
NO SIGNIFICANT THREAT TO PROTECTED SPEECH.  AND IT REFLECTS A
LEGITIMATE COMMUNITY INTEREST IN THE HARMONIOUS ADMINISTRATION OF ITS
LAWS.  POLICE OFFICERS IN THIS DAY PERHAPS MUST BE THICK SKINNED AND
PREPARED FOR ABUSE, BUT A WANTON, HIGH-VELOCITY, VERBAL ATTACK OFTEN IS
BUT A STEP AWAY FROM VIOLENCE OR PASSIONED REACTION, NO MATTER HOW SELF
DISCIPLINED THE INDIVIDUALS INVOLVED.  IN THE INTEREST OF THE ARRESTED
PERSON WHO COULD BECOME THE VICTIM OF POLICE OVERBEARANCE, AND IN THE
INTEREST OF THE OFFICER, WHO MUST ANTICIPATE VIOLENCE AND WHO, LIKE THE
REST OF US, IS FALLIBLY HUMAN, LEGISLATURES HAVE ENACTED LAWS OF THE
KIND CHALLENGED IN THIS CASE TO SERVE A LEGITIMATE SOCIAL PURPOSE AND
TO RESTRICT ONLY SPEECH THAT IS "OF SUCH SLIGHT SOCIAL VALUE AS A STEP
TO TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED FROM (IT) IS CLEARLY
OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND MORALITY."  CHAPLINSKY,
SUPRA, AT 572.  /2/  IN SUCH CIRCUMSTANCES WE SHOULD STAY OUR HAND AND
NOT YIELD TO THE ABSOLUTES OF DOCTRINE. 

I SEE NO ALTERNATIVE TO OUR AFFIRMANCE, AND I THEREFORE DISSENT. 

/1/  "SECTION 49 - 7.  CURSING, ETC., POLICE PROHIBITED. 

IT SHALL BE UNLAWFUL AND A BREACH OF THE PEACE FOR ANY PERSON
WANTONLY TO CURSE OR REVILE OR TO USE OBSCENE OR OPPROBRIOUS LANGUAGE
TOWARD OR WITH REFERENCE TO ANY MEMBER OF THE CITY POLICE WHILE IN THE
ACTUAL PERFORMANCE OF HIS DUTY." 

/2/  THE SUGGESTION THAT THE ORDINANCE IS OPEN TO SELECTIVE
ENFORCEMENT IS NO REASON TO STRIKE IT DOWN.  COURTS ARE CAPABLE OF
STEMMING ABUSIVE APPLICATION OF STATUTES.  SEE, E.G., NORWELL V. CITY
OF CINCINNATI, 414 U.S. 14 (1973).  QUESTIONS OF CREDIBILITY, MOREOVER,
HAVE BEEN RESOLVED BY COURTS FOR CENTURIES AND THERE IS NO REASON TO
BELIEVE THE SO-CALLED MODERN AGE REQUIRES ANY DIFFERENT TREATMENT. 

JOHN WILSON REED ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

SERVANDO C. GARCIA III ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON
THE BRIEF WAS BLAKE G. ARATA. 
..END :



UNITED STATES V. KAHN, 415 U.S. 143 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 72 - 1328.  ARGUED DECEMBER 11 - 12, 1973--DECIDED

           FEBRUARY 20, 1974; 471 F.2D 191, REVERSED AND REMANDED. 


    ON THE GOVERNMENT'S APPLICATION FOR AN ORDER AUTHORIZING A

  WIRETAP INTERCEPTION OF THE HOME TELEPHONES OF RESPONDENT IRVING

  KAHN, A SUSPECTED BOOKMAKER, PURSUANT TO TITLE III OF THE OMNIBUS

  CRIME CONTROL AND SAFE STREETS ACT OF 1968, THE DISTRICT JUDGE

  ENTERED AN ORDER PURSUANT TO 18 U.S.C. 2518, WHICH DESCRIBED THE

  TELEPHONES TO BE TAPPED AND FOUND PROBABLE CAUSE TO BELIEVE THAT

  MR. KAHN AND "OTHERS AS YET UNKNOWN"  WERE USING THE TELEPHONES

TO CONDUCT AN ILLEGAL GAMBLING BUSINESS, AND AUTHORIZED FBI

  AGENTS TO INTERCEPT WIRE COMMUNICATIONS "OF"  MR. KAHN AND

  "OTHERS AS YET UNKNOWN."  THE AGENTS INTERCEPTED INCRIMINATING

  CALLS MADE BY MR. KAHN IN ARIZONA TO RESPONDENT MRS. KAHN AT

  THEIR HOME IN CHICAGO, AND ALSO INCRIMINATING CALLS MADE BY MRS.

  KAHN TO " A KNOWN GAMBLING FIGURE."  THE RESPONDENTS WERE

  SUBSEQUENTLY INDICTED FOR VIOLATING THE TRAVEL ACT.  UPON BEING

  NOTIFIED OF THE GOVERNMENT'S INTENTION TO INTRODUCE THE

  INTERCEPTED CONVERSATIONS AT TRIAL, RESPONDENTS MOVED TO SUPPRESS

  THEM.  THE DISTRICT COURT GRANTED THE MOTION.  THE COURT OF

  APPEALS AFFIRMED, CONSTRUING THE REQUIREMENTS OF 18 U.S.C.

  2518(1)(B)(IV) AND2518(4)(A) THAT THE PERSON WHOSE COMMUNICATIONS

ARE TO BE INTERCEPTED IS TO BE IDENTIFIED IF KNOWN, AS EXCLUDING

  FROM THE TERM "OTHERS AS YET UNKNOWN" ANY PERSONS WHO CAREFUL

  GOVERNMENT INVESTIGATION WOULD DISCLOSE WERE PROBABLY USING THE

  TELEPHONES FOR ILLEGAL ACTIVITIES, AND THAT SINCE THE GOVERNMENT

  HAD NOT SHOWN THAT FURTHER INVESTIGATION OF MR. KAHN'S ACTIVITIES

  WOULD NOT HAVE IMPLICATED HIS WIFE IN THE GAMBLING BUSINESS, SHE

  WAS NOT A "PERSON AS YET UNKNOWN" WITHIN THE PURVIEW OF THE

  WIRETAP ORDER.  HELD: 

     1.  TITLE III REQUIRES THE NAMING OF A PERSON IN THE

  APPLICATION OR INTERCEPTION ORDER ONLY WHEN THE LAW ENFORCEMENT

  AUTHORITIES HAVE PROBABLE CAUSE TO BELIEVE THAT THAT INDIVIDUAL

  IS "COMMITTING THE OFFENSE"  FOR WHICH THE WIRETAP IS SOUGHT, AND

  SINCE IT IS UNDISPUTED HERE THAT THE GOVERNMENT HAD NO REASON TO

  SUSPECT MRS. KAHN OF COMPLICITY IN THE GAMBLING BUSINESS BEFORE

  THE WIRETAPPING BEGAN, IT FOLLOWS THAT UNDER THE STATUTE SHE WAS

  AMONG THE CLASS OF PERSONS "AS YET UNKNOWN"  COVERED BY THE

  WIRETAP ORDER.  PP. 151 - 155. 

     2.  NEITHER THE LANGUAGE OF THE WIRETAP ORDER NOR THAT OF
TITLE

  III REQUIRES THE SUPPRESSION OF LEGALLY INTERCEPTED CONVERSATIONS

  TO WHICH MR. KAHN WAS NOT HIMSELF A PARTY.  PP. 155 - 158. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ.,

  JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH

  BRENNAN AND MARSHALL, JJ., JOINED, POST, P. 158. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON MARCH 20, 1970, AN ATTORNEY FROM THE UNITED STATES DEPARTMENT OF
JUSTICE SUBMITTED AN APPLICATION FOR AN ORDER AUTHORIZING A WIRETAP
INTERCEPTION PURSUANT TO TITLE III OF THE OMNIBUS CRIME CONTROL AND
SAFE STREETS ACT OF 1968, 18 U.S.C. 2510- 2520, TO JUDGE WILLIAM J.
CAMPBELL OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS.  THE AFFIDAVIT ACCOMPANYING THE APPLICATION CONTAINED
INFORMATION INDICATING THAT RESPONDENT IRVING KAHN WAS A BOOKMAKER WHO
OPERATED FROM HIS RESIDENCE AND USED TWO HOME TELEPHONES TO CONDUCT HIS
BUSINESS.  /1/  THE AFFIDAVIT ALSO NOTED THE GOVERNMENT'S INFORMANTS
HAD STATED THAT THEY WOULD REFUSE TO TESTIFY AGAINST KAHN, THAT
TELEPHONE COMPANY RECORDS ALONE WOULD BE INSUFFICIENT TO SUPPORT A
BOOKMAKING CONVICTION, AND THAT PHYSICAL SURVEILLANCE OR NORMAL SEARCH
AND-SEIZURE TECHNIQUES WOULD BE UNLIKELY TO PRODUCE USEFUL EVIDENCE. 
THE APPLICATION THEREFORE CONCLUDED THAT "NORMAL INVESTIGATIVE
PROCEDURES REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED," AND ASKED FOR
AUTHORIZATION TO INTERCEPT WIRE COMMUNICATIONS OF IRVING KAHN AND
"OTHERS AS YET UNKNOWN"  OVER TWO NAMED TELEPHONE LINES, IN ORDER THAT
INFORMATION CONCERNING THE GAMBLING OFFENSES MIGHT BE OBTAINED. 

JUDGE CAMPBELL ENTERED AN ORDER, PURSUANT TO 18 U.S.C. 2518,
APPROVING THE APPLICATION.  /2/  HE SPECIFICALLY FOUND THAT THERE WAS
PROBABLE CAUSE TO BELIEVE THAT IRVING KAHN AND "OTHERS AS YET UNKNOWN"
WERE USING THE TWO TELEPHONES TO CONDUCT AN ILLEGAL GAMBLING BUSINESS,
AND THAT NORMAL INVESTIGATIVE TECHNIQUES WERE UNLIKELY TO SUCCEED IN
PROVIDING FEDERAL OFFICIALS WITH SUFFICIENT EVIDENCE TO SUCCESSFULLY
PROSECUTE SUCH CRIMES.  THE ORDER AUTHORIZED SPECIAL AGENTS OF THE FBI
TO "INTERCEPT WIRE COMMUNICATIONS OF IRVING KAHN AND OTHERS AS YET
UNKNOWN" TO AND FROM THE TWO NAMED TELEPHONES CONCERNING GAMBLING
ACTIVITIES. 

THE AUTHORIZATION ORDER FURTHER PROVIDED THAT STATUS REPORTS WERE TO
BE FILED WITH JUDGE CAMPBELL ON THE FIFTH AND 10TH DAYS FOLLOWING THE
DATE OF THE ORDER, SHOWING WHAT PROGRESS HAD BEEN MADE TOWARDS
ACHIEVEMENT OF THE ORDER'S OBJECTIVE, AND DESCRIBING ANY NEED FOR
FURTHER INTERCEPTIONS.  /3/  THE FIRST SUCH REPORT, FILED WITH JUDGE
CAMPBELL ON MARCH 25, 1970, INDICATED THAT THE WIRETAP HAD BEEN
TERMINATED BECAUSE ITS OBJECTIVES HAD BEEN ATTAINED.  THE STATUS REPORT
GAVE A SUMMARY OF THE INFORMATION GARNERED BY THE INTERCEPTIONS,
STATING IN PART THAT ON MARCH 21 IRVING KAHN MADE TWO TELEPHONE CALLS
FROM ARIZONA TO HIS WIFE AT THEIR HOME IN CHICAGO AND DISCUSSED
GAMBLING WINS AND LOSSES, AND THAT ON THE SAME DATE MINNIE KAHN,
IRVING'S WIFE, MADE TWO TELEPHONE CALLS FROM THE INTERCEPTED TELEPHONES
TO A PERSON DESCRIBED IN THE STATUS REPORT AS "A KNOWN GAMBLING
FIGURE," WITH WHOM SHE DISCUSSED VARIOUS KINDS OF BETTING INFORAMTION. 

BOTH IRVING AND MINNIE KAHN WERE SUBSEQUENTLY INDICTED FOR USING A
FACILITY IN INTERSTATE COMMERCE TO PROMOTE, MANAGE, AND FACILITATE AN
ILLEGAL GAMBLING BUSINESS, IN VIOLATION OF 18 U.S.C. 1952.  /4/  THE
GOVERNMENT PROSECUTOR NOTIFIED THE KAHNS THAT HE INTENDED TO INTRODUCE
INTO EVIDENCE AT TRIAL THE CONVERSATIONS INTERCEPTED UNDER THE COURT
ORDER.  THE KAHNS IN TURN FILED MOTIONS TO SUPPRESS THE CONVERSATIONS. 
THESE MOTIONS WERE HEARD BY JUDGE THOMAS R. MC MILLEN IN THE NORTHERN
DISTRICT OF ILLINOIS, WHO, IN AN UNREPORTED OPINION, GRANTED THE MOTION
TO SUPPRESS.  HE VIEWED ANY CONVERSATIONS BETWEEN IRVING AND MINNIE
KAHN AS WITHIN THE "MARITAL PRIVILEGE," AND HENCE INADMISSIBLE AT
TRIAL.  /5/  IN ADDITION, ALL OTHER CONVERSATIONS IN WHICH MINNIE KAHN
WAS A PARTICIPANT WERE SUPPRESSED AS BEING OUTSIDE THE SCOPE OF JUDGE
CAMPBELL'S ORDER, ON THE GROUND THAT MINNIE KAHN WAS NOT A PERSON "AS
YET UNKNOWN" TO THE FEDERAL AUTHORITIES AT THE TIME OF THE ORIGINAL
APPLICATION. 

THE GOVERNMENT FILED AN INTERLOCUTORY APPEAL FROM THE SUPPRESSION
ORDER.  /6/  A DIVIDED PANEL OF THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT AFFIRMED THAT PART OF THE DISTRICT COURT'S ORDER
SUPPRESSING ALL CONVERSATIONS OF MINNIE KAHN, BUT REVERSED THAT PART OF
THE ORDER BASED ON THE MARITAL PRIVILEGE.  471 F.2D 191.  THE COURT
HELD THAT UNDER THE WIRETAP ORDER ALL INTERCEPTED CONVERSATIONS HAD TO
MEET TWO REQUIREMENTS BEFORE THEY COULD BE ADMITTED INTO EVIDENCE: 

"(1) THAT IRVING KAHN BE A PARTY TO THE CONVERSATIONS, AND (2) THAT
HIS CONVERSATIONS INTERCEPTED BE WITH 'OTHERS AS YET UNKNOWN.'"  ID.,
AT 195.  THE COURT THEN CONSTRUED THE STATUTORY REQUIREMENTS OF 18
U.S.C. 2518(1)(B)(IV) AND 2518(4)(A) THAT THE PERSON WHOSE
COMMUNICATIONS ARE TO BE INTERCEPTED IS TO BE IDENTIFIED IF KNOWN, AS
EXCLUDING FROM THE TERM "OTHERS AS YET UNKNOWN" ANY "PERSONS WHOM
CAREFUL INVESTIGATION BY THE GOVERNMENT WOULD DISCLOSE WERE PROBABLY
USING THE KAHN TELEPHONES IN CONVERSATIONS FOR ILLEGAL ACTIVITIES." 
ID., AT 196.  SINCE THE GOVERNMENT IN THIS CASE HAD NOT SHOWN THAT
FURTHER INVESTIGATION OF IRVING KAHN'S ACTIVITIES WOULD NOT HAVE
IMPLICATED MINNIE IN THE GAMBLING BUSINESS, THE COURT OF APPEALS FELT
THAT MRS. KAHN WAS NOT A "PERSON AS YET UNKNOWN" WITHIN THE PURVIEW OF
JUDGE CAMPBELL'S ORDER. 

WE GRANTED THE GOVERNMENT'S PETITION FOR CERTIORARI, 411 U.S. 980,
IN ORDER TO RESOLVE A SEEMINGLY IMPORTANT ISSUE INVOLVING THE
CONSTRUCTION OF THIS RELATIVELY NEW FEDERAL STATUTE.  /7/ 

AT THE OUTSET, IT IS WORTH NOTING WHAT ISSUES ARE NOT INVOLVED IN
THIS CASE.  FIRST, WE ARE NOT PRESENTED WITH AN ATTACK UPON THE
CONSTITUTIONALITY OF ANY PART OF TITLE III OF THE OMNIBUS CRIME CONTROL
AND SAFE STREETS ACT OF 1968.  SECONDLY, REVIEW OF THIS INTERLOCUTORY
ORDER DOES NOT INVOLVE ANY QUESTIONS AS TO THE PROPRIETY OF THE JUSTICE
DEPARTMENT'S INTERNAL PROCEDURES IN AUTHORIZING THE APPLICATION FOR THE
WIRETAP.  /8/  FINALLY, NO ARGUMENT IS PRESENTED THAT THE FEDERAL
AGENTS FAILED TO CONDUCT THE WIRETAP HERE IN SUCH A MANNER AS TO
MINIMIZE THE INTERCEPTION OF INNOCENT CONVERSATIONS.  /9/  THE QUESTION
PRESENTED IS SIMPLY WHETHER THE CONVERSATIONS THAT THE GOVERNMENT
WISHES TO INTRODUCE INTO EVIDENCE AT THE RESPONDENTS'  TRIAL ARE MADE
INADMISSIBLE BY THE "OTHERS AS YET UNKNOWN" LANGUAGE OF JUDGE
CAMPBELL'S ORDER OR BY THE CORRESPONDING STATUTORY REQUIREMENTS OF
TITLE III. 

IN DECIDING THAT MINNIE KAHN WAS NOT A PERSON "AS YET UNKNOWN"
WITHIN THE MEANING OF THE WIRETAP ORDER, THE COURT OF APPEALS RELIED
HEAVILY ON AN EXPRESSED OBJECTIVE OF CONGRESS IN THE ENACTMENT OF TITLE
III:  THE PROTECTION OF THE PERSONAL PRIVACY OF THOSE ENGAGING IN WIRE
COMMUNICATIONS.  /10/  IN LIGHT OF THIS CLEAR CONGRESSIONAL CONCERN,
THE COURT OF APPEALS REASONED, THE GOVERNMENT COULD NOT LIGHTLY CLAIM
THAT A PERSON WHOSE CONVERSATIONS WERE INTERCEPTED WAS "UNKNOWN" WITHIN
THE MEANING OF TITLE III.  THUS, IT WAS NOT ENOUGH THAT MRS. KAHN WAS
NOT KNOWN TO BE TAKING PART IN ANY ILLEGAL GAMBLING BUSINESS AT THE
TIME THAT THE GOVERNMENT APPLIED FOR THE WIRETAP ORDER; IN ADDITION,
THE COURT HELD THAT THE GOVERNMENT WAS REQUIRED TO SHOW THAT SUCH
COMPLICITY WOULD NOT HAVE BEEN DISCOVERED HAD A THOROUGH INVESTIGATION
OF MRS. KAHN BEEN CONDUCTED BEFORE THE WIRETAP APPLICATION. 

IN OUR VIEW, NEITHER THE LEGISLATIVE HISTORY NOR THE SPECIFIC
LANGUAGE OF TITLE III COMPELS THIS CONCLUSION.  TO BE SURE, CONGRESS
WAS CONCERNED WITH PROTECTING INDIVIDUAL PRIVACY WHEN IT ENACTED THIS
STATUTE.  BUT IT IS ALSO CLEAR THAT CONGRESS INTENDED TO AUTHORIZE
ELECTRONIC SURVEILLANCE AS A WEAPON AGAINST THE OPERATIONS OF ORGANIZED
CRIME.  /11/  THERE IS, OF COURSE, SOME TENISON BETWEEN THESE TWO
STATED CONGRESSIONAL OBJECTIVES, AND THE QUESTION OF HOW CONGRESS
STRUCK THE BALANCE IN ANY PARTICULAR INSTANCE CANNOT BE RESOLVED SIMPLY
THROUGH GENERAL REFERENCE TO THE STATUTE'S EXPRESSED CONCERN FOR THE
PROTECTION OF INDIVIDUAL PRIVACY.  RATHER, THE STARTING POINT, AS IN
ALL STATUTORY CONSTRUCTION, IS THE PRECISE WORDING CHOSEN BY CONGRESS
IN ENACTING TITLE III. 

REQUIREMENTS FOR THE INFORMATION TO BE INCLUDED IN AN APPLICATION FOR
AN ORDER AUTHORIZING THE INTERCEPTION OF WIRE COMMUNICATIONS.  THE SOLE
PROVISION PERTAINING TO THE IDENTIFICATION OF PERSONS WHOSE
COMMUNICATIONS ARE TO BE INTERCEPTED IS CONTAINED IN 2518(1)(B)(IV),
WHICH REQUIRES THAT THE APPLICATION STATE "THE IDENTITY OF THE PERSON,
IF KNOWN, COMMITTING THE OFFENSE AND WHOSE COMMUNICATIONS ARE TO BE
INTERCEPTED."  (EMPHASIS SUPPLIED.)  THIS STATUTORY LANGUAGE WOULD
PLAINLY SEEM TO REQUIRE THE NAMING OF A SPECIFIC PERSON IN THE WIRETAP
APPLICATION ONLY WHEN LAW ENFORCEMENT OFFICIALS BELIEVE THAT SUCH AN
INDIVIDUAL IS ACTUALLY COMMITTING ONE OF THE OFFENSES SPECIFIED IN 18
U.S.C. 2516.  SINCE IT IS UNDISPUTED HERE THAT MINNIE KAHN WAS NOT
KNOWN TO THE GOVERNMENT TO BE ENGAGING IN GAMBLING ACTIVITIES AT THE
TIME THE INTERCEPTION ORDER WAS SOUGHT, THE FAILURE TO INCLUDE HER NAME
IN THE APPLICATION WOULD THUS SEEM TO COMPORT WITH THE LITERAL LANGUAGE
OF 2518(1)(B)(IV). 

MOREOVER, THERE IS NO REASON TO CONCLUDE THAT THE OMISSION OF MINNIE
KAHN'S NAME FROM THE ACTUAL WIRETAP ORDER WAS IN CONFLICT WITH ANY OF
THE PROVISIONS OF TITLE III.  SECTION 2518(4)(A) REQUIRES THAT THE
ORDER SPECIFY "THE IDENTITY OF THE PERSON, IF KNOWN, WHOSE
COMMUNICATIONS ARE TO BE INTERCEPTED."  SINCE THE JUDGE WHO PREPARES
THE ORDER CAN ONLY BE EXPECTED TO LEARN OF THE TARGET INDIVIDUAL'S
IDENTITY THROUGH REFERENCE TO THE ORIGINAL APPLICATION, IT CAN HARDLY
BE INFERRED THAT THIS STATUTORY LANGUAGE IMPOSES ANY BROADER
REQUIREMENT THAN THE IDENTIFICATION PROVISIONS OF 2518(1)(B)(IV). 

IN EFFECT, THE COURT OF APPEALS READ THESE PROVISIONS OF 2518 AS IF
THEY REQUIRED THAT THE APPLICATION AND ORDER IDENTIFY "ALL PERSONS,
KNOWN OR DISCOVERABLE, WHO ARE COMMITTING THE OFFENSE AND WHOSE
COMMUNICATIONS ARE TO BE INTERCEPTED."  BUT THAT IS SIMPLY NOT WHAT THE
STATUTE SAYS:  IDENTIFICATION IS REQUIRED ONLY OF THOSE "KNOWN" TO BE
"COMMITTING THE OFFENSE."  HAD CONGRESS WISHED TO ENGRAFT A SEPARATE
REQUIREMENT OF "DISCOVERABILITY" ONTO THE PROVISIONS OF TITLE III, IT
SURELY WOULD HAVE DONE SO IN LANGUAGE PLAINER THAN THAT NOW EMBODIED IN
2518. 

MOREOVER, THE COURT OF APPEALS' INTERPRETATION OF 2518 WOULD HAVE A
BROAD IMPACT.  A REQUIREMENT THAT THE GOVERNMENT FULLY INVESTIGATE THE
POSSIBILITY THAT ANY LIKELY USER OF A TELEPHONE WAS ENGAGING IN
CRIMINAL ACTIVITIES BEFORE APPLYING FOR AN INTERCEPTION ORDER WOULD
GREATLY SUBVERT THE EFFECTIVENESS OF THE LAW ENFORCEMENT MECHANISM THAT
CONGRESS CONSTRUCTED.  IN THE CASE AT HAND, THE COURT OF APPEALS'
HOLDING WOULD REQUIRE THE COMPLETE INVESTIGATION, NOT ONLY OF MINNIE
KAHN, BUT ALSO OF THE TWO TEEN-AGED KAHN CHILDREN AND OTHER FREQUENTERS
OF THE KAHN RESIDENCE BEFORE A WIRETAP ORDER COULD BE APPLIED FOR.  IF
THE TELEPHONE WERE IN A STORE OR AN OFFICE, THE GOVERNMENT MIGHT WELL
BE REQUIRED TO INVESTIGATE EVERYONE WHO HAD ACCESS TO IT--IN SOME
CASES, LITERALLY HUNDREDS OF PEOPLE--EVEN THOUGH THERE WAS NO REASON TO
SUSPECT THAT ANY OF THEM WERE VIOLATING ANY CRIMINAL LAW.  IT IS THUS
OPEN TO CONSIDERABLE DOUBT THAT SUCH A REQUIREMENT WOULD ULTIMATELY
SERVE THE INTERESTS OF INDIVIDUAL PRIVACY.  IN ANY EVENT, THE STATUTE
AS ACTUALLY DRAFTED CONTAINS NO INTIMATION OF SUCH TOTAL INVESTIGATIVE
DEMANDS.  /12/ 

IN ARRIVING AT ITS READING OF 2518, THE COURT OF APPEALS SEEMED TO
BELIEVE THAT TAKING THE STATUTE AT FACE VALUE WOULD RESULT IN A WIRETAP
ORDER AMOUNTING TO A "VIRTUAL GENERAL WARRANT," SINCE THE LAW
ENFORCEMENT AUTHORITIES WOULD BE AUTHORIZED TO INTERCEPT COMMUNICATIONS
OF ANYONE WHO TALKED ON THE NAMED TELEPHONE LINE.  471 F.2D, AT 197. 
BUT NEITHER THE STATUTE NOR THE WIRETAP ORDER IN THIS CASE WOULD ALLOW
THE FEDERAL AGENTS SUCH TOTAL UNFETTERED DISCRETION.  BY ITS OWN TERMS,
THE WIRETAP ORDER IN THIS CASE CONFERRED AUTHORITY TO INTERCEPT ONLY
COMMUNICATIONS "CONCERNING THE ABOVE-DESCRIBED (GAMBLING) OFFENSES." 
/13/  MOREOVER, IN ACCORD WITH THE STATUTE THE ORDER REQUIRED THE
AGENTS TO EXECUTE THE WARRANT IN SUCH A MANNER AS TO MINIMIZE THE
INTERCEPTION OF ANY INNOCENT CONVERSATIONS.  /14/  AND THE ORDER
LIMITED THE LENGTH OF ANY POSSIBLE INTERCEPTION TO 15 DAYS, WHILE
REQUIRING STATUS REPORTS AS TO THE PROGRESS OF THE WIRETAP TO BE
SUBMITTED TO THE DISTRICT JUDGE EVERY FIVE DAYS, SO THAT ANY POSSIBLE
ABUSES MIGHT BE QUICKLY DISCOVERED AND HALTED.  THUS, THE FAILURE OF
THE ORDER TO SPECIFY THAT MRS. KAHN'S CONVERSATIONS MIGHT BE THE
SUBJECT OF INTERCEPTION HARDLY LEFT THE EXECUTING AGENTS FREE TO SEIZE
AT WILL EVERY COMMUNICATION THAT CAME OVER THE WIRE--AND THERE IS NO
INDICATION THAT SUCH ABUSES TOOK PLACE IN THIS CASE.  /15/ 

WE CONCLUDE, THEREFORE, THAT TITLE III REQUIRES THE NAMING OF A
PERSON IN THE APPLICATION OR INTERCEPTION ORDER ONLY WHEN THE LAW
ENFORCEMENT AUTHORITIES HAVE PROBABLE CAUSE TO BELIEVE THAT THAT
INDIVIDUAL IS "COMMITTING THE OFFENSE" FOR WHICH THE WIRETAP IS
SOUGHT.  SINCE IT IS UNDISPUTED THAT THE GOVERNMENT HAD NO REASON TO
SUSPECT MINNIE KAHN OF COMPLICITY IN THE GAMBLING BUSINESS BEFORE THE
WIRE INTERCEPTIONS HERE BEGAN, IT FOLLOWS THAT UNDER THE STATUTE SHE
WAS AMONG THE CLASS OF PERSONS "AS YET UNKNOWN"  COVERED BY JUDGE
CAMPBELL'S ORDER.     THE REMAINING QUESTION IS WHETHER, UNDER THE
ACTUAL LANGUAGE OF JUDGE CAMPBELL'S ORDER, ONLY THOSE INTERCEPTED
CONVERSATIONS TO WHICH IRVING KAHN HIMSELF WAS A PARTY ARE ADMISSIBLE
IN EVIDENCE AT THE KAHNS' TRIAL, AS THE COURT OF APPEALS CONCLUDED. 
THE EFFECT OF SUCH AN INTERPRETATION OF THE WIRETAP ORDER IN THIS CASE
WOULD BE TO EXCLUDE FROM EVIDENCE THE INTERCEPTED CONVERSATIONS BETWEEN
MINNIE KAHN AND THE "KNOWN GAMBLING FIGURE" CONCERNING BETTING
INFORMATION.  AGAIN, WE ARE UNABLE TO READ EITHER THE DISTRICT COURT
ORDER OR THE UNDERLYING PROVISIONS OF TITLE III AS REQUIRING SUCH A
RESULT.     THE ORDER SIGNED BY JUDGE CAMPBELL IN THIS CASE AUTHORIZED
THE GOVERNMENT TO "INTERCEPT WIRE COMMUNICATIONS OF IRVING KAHN AND
OTHERS AS YET UNKNOWN . . . TO AND FROM TWO TELEPHONES, SUBSCRIBED TO
BY IRVING KAHN."  THE ORDER DOES NOT REFER TO CONVERSATIONS BETWEEN
IRVING KAHN AND OTHERS; RATHER, IT DESCRIBES "COMMUNICATIONS OF IRVING
KAHN AND OTHERS AS YET UNKNOWN" TO AND FROM THE TARGET TELEPHONES.  TO
READ THIS LANGUAGE AS REQUIRING THAT IRVING KAHN BE A PARTY TO EVERY
INTERCEPTED CONVERSATION WOULD NOT ONLY INVOLVE A SUBSTANTIAL FEAT OF
VERBAL GYMNASTICS, BUT WOULD ALSO RENDER THE PHRASE "AND OTHERS AS YET
UNKNOWN" QUITE REDUNDANT, SINCE KAHN PERFORCE COULD NOT COMMUNICATE
EXCEPT WITH OTHERS. 

MOREOVER, THE INTERPRETATION OF THE WIRETAP AUTHORIZATION ADOPTED BY
THE COURT OF APPEALS IS AT ODDS WITH ONE OF THE STATED PURPOSES OF
JUDGE CAMPBELL'S ORDER.  THE DISTRICT JUDGE SPECIFICALLY FOUND THAT THE
WIRETAP WAS NEEDED TO "REVEAL THE IDENTITIES OF (IRVING KAHN'S)
CONFEDERATES, THEIR PLACES OF OPERATION, AND THE NATURE OF THE
CONSPIRACY INVOLVED."  IT IS EVIDENT THAT SUCH INFORMATION MIGHT BE
REVEALED IN CONVERSATIONS TO WHICH IRVING KAHN WAS NOT A PARTY.  FOR
EXAMPLE, A CONFEDERATE MIGHT CALL IN KAHN'S ABSENCE, AND LEAVE EITHER A
NAME, A RETURN TELEPHONE NUMBER, OR AN INCRIMINATING MESSAGE.  OR, ONE
OF KAHN'S ASSOCIATES MIGHT HIMSELF COME TO THE FAMILY HOME AND EMPLOY
THE TARGET TELEPHONES TO CONDUCT THE GAMBLING BUSINESS.  /16/  IT WOULD
BE DIFFICULT UNDER ANY CIRCUMSTANCES TO BELIEVE THAT A DISTRICT JUDGE
MEANT SUCH INTERCEPTED CONVERSATIONS TO BE INADMISSIBLE AT ANY FUTURE
TRIAL; GIVEN THE SPECIFIC LANGUAGE EMPLOYED BY JUDGE CAMPBELL IN THE
WIRETAP ORDER TODAY BEFORE US, SUCH A CONCLUSION IS SIMPLY UNTENABLE. 

NOTHING IN TITLE III REQUIRES THAT, DESPITE THE ORDER'S LANGUAGE, IT
MUST BE READ TO EXCLUDE MINNIE KAHN'S COMMUNICATIONS.  AS ALREADY
NOTED, 18 U.S.C. 2518(1)(B)(IV) AND 2518(4)(A) REQUIRE IDENTIFICATION
OF THE PERSON COMMITTING THE OFFENSE ONLY "IF KNOWN."  THE CLEAR
IMPLICATION OF THIS LANGUAGE IS THAT WHEN THERE IS PROBABLE CAUSE TO
BELIEVE THAT A PARTICULAR TELEPHONE IS BEING USED TO COMMIT AN OFFENSE
BUT NO PARTICULAR PERSON IS IDENTIFIABLE, A WIRE INTERCEPTION ORDER
MAY, NEVERTHELESS, PROPERLY ISSUE UNDER THE STATUTE.  /17/  IT
NECESSARILY FOLLOWS THAT CONGRESS COULD NOT HAVE INTENDED THAT THE
AUTHORITY TO INTERCEPT MUST BE LIMITED TO THOSE CONVERSATIONS BETWEEN A
PARTY NAMED IN THE ORDER AND OTHERS, SINCE AT LEAST IN SOME CASES, THE
ORDER MIGHT NOT NAME ANY SPECIFIC PARTY AT ALL.  /18/ 

FOR THESE REASONS, WE HOLD THAT THE COURT OF APPEALS WAS IN ERROR
WHEN IT INTERPRETED THE PHRASE "OTHERS AS YET UNKNOWN" SO AS TO EXCLUDE
CONVERSATIONS INVOLVING MINNIE KAHN FROM THE PURVIEW OF THE WIRETAP
ORDER.  WE FURTHER HOLD THAT NEITHER THE LANGUAGE OF JUDGE CAMPBELL'S
ORDER NOT THAT OF TITLE III REQUIRES THE SUPPRESSION OF LEGALLY
INTERCEPTED CONVERSATIONS TO WHICH IRVING KAHN WAS NOT HIMSELF A
PARTY. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND
THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE AFFIANT, A SPECIAL AGENT OF THE FEDERAL BUREAU OF
INVESTIGATION, PROVIDED DETAILED INFORMATION ABOUT KAHN'S ALLEGED
GAMBLING ACTIVITIES.  THIS INFORMATION WAS DERIVED FROM THE PERSONAL
OBSERVATIONS OF THREE UNNAMED SOURCES, WHOSE PART RELIABILITY IN
GAMBLING INVESTIGATIONS WAS DESCRIBED BY THE AFFIANT.  IN ADDITION, THE
INFORMATION WAS CORROBORATED BY TELEPHONE COMPANY RECORDS SHOWING CALLS
ON KAHN'S TELEPHONES TO AND FROM A KNOWN GAMBLING FIGURE IN ANOTHER
STATE. 

THE GOVERNMENT'S APPLICATION AND THE ACCOMPANYING AFFIDAVIT ALSO
CLAIMED THAT ONE JAKE JACOBS WAS USING A TELEPHONE AT HIS PRIVATE
RESIDENCE TO CONDUCT AN ILLEGAL GAMBLING BUSINESS.  THE SUBSEQUENT
ORDER OF THE DISTRICT COURT AUTHORIZING WIRE INTERCEPTIONS ALSO COVERED
JACOBS' PHONE.  ANY COMMUNICATIONS INTERCEPTED OVER THE JACOBS
TELEPHONE, HOWEVER, PLAY NO ROLE IN THE ISSUES NOW BEFORE US. 

/2/ TITLE 18 U.S.C. 2518 PROVIDES, IN PERTINENT PART: 

     "(1) EACH APPLICATION FOR AN ORDER AUTHORIZING OR APPROVING
THE

  INTERCEPTION OF A WIRE OR ORAL COMMUNICATION SHALL BE MADE IN

  WRITING UPON OATH OR AFFIRMATION TO A JUDGE OF COMPETENT

  JURISDICTION AND SHALL STATE THE APPLICANT'S AUTHORITY TO MAKE

  SUCH APPLICATION.  EACH APPLICATION SHALL INCLUDE THE FOLLOWING

  INFORMATION: 

     (B) A FULL AND COMPLETE STATEMENT OF THE FACTS AND

  CIRCUMSTANCES RELIED UPON BY THE APPLICANT, TO JUSTIFY HIS BELIEF

 THAT AN ORDER SHOULD BE ISSUED, INCLUDING (I) DETAILS AS TO THE

  PARTICLUAR OFFENSE THAT HAS BEEN, IS BEING, OR IS ABOUT TO BE

  COMMITTED, (II) A PARTICULAR DESCRIPTION OF THE NATURE AND

  LOCATION OF THE FACILITIES FROM WHICH OR THE PLACE WHERE THE

  COMMUNICATION IS TO BE INTERCEPTED, (III) A PARTICULAR

  DESCRIPTION OF THE TYPE OF COMMUNICATIONS SOUGHT TO BE

  INTERCEPTED, (IV) THE IDENTITY OF THE PERSON, IF KNOWN,

  COMMITTING THE OFFENCE AND WHOSE COMMUNICATIONS ARE TO BE

  INTERCEPTED;

        . .          .          . 

     "(3) UPON SUCH APPLICATION THE JUDGE MAY ENTER AN EX PARTE

  ORDER, AS REQUESTED OR AS MODIFIED, AUTHORIZING OR APPROVING

  INTERCEPTION OR WIRE OR ORAL COMMUNICATIONS WITHIN THE

  TERRITORIAL JURISDICTION OF THE COURT IN WHICH THE JUDGE IS

  SITTING, IF THE JUDGE DETERMINES ON THE BASIS OF THE FACTS

  SUBMITTED BY THE APPLICANT THAT-- 

     (A) THERE IS PROBABLE CAUSE FOR BELIEF THAT AN INDIVIDUAL IS

  COMMITTING, HAS COMMITTED, OR IS ABOUT TO COMMIT A PARTICULAR

  OFFENSE ENUMERATED IN SECTION 2516 OF THIS CHAPTER; 

     "(B) THERE IS PROBABLE CAUSE FOR BELIEF THAT PARTICULAR

  COMMUNICATIONS CONCERNING THAT OFFENSE WILL BE OBTAINED THROUGH

  SUCH INTERCEPTION; 

     "(C) NORMAL INVESTIGATIVE PROCEDURES HAVE BEEN TRIED AND HAVE

  FAILED OR REASONABLE APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED OR

  TO BE TOO DANGEROUS; 

"(D) THERE IS PROBABLE CAUSE FOR BELIEF THAT THE FACILITIES

  FROM WHICH, OR THE PLACE WHERE, THE WIRE OR ORAL COMMUNICATIONS

  ARE TO BE INTERCEPTED ARE BEING USED, OR ARE ABOUT TO BE USED, IN

  CONNECTION WITH THE COMMISSION OF SUCH OFFENSE, OR ARE LEASED TO,

  LISTED IN THE NAME OF, OR COMMONLY USED BY SUCH PERSON. 

     "(4) EACH ORDER AUTHORIZING OR APPROVING THE INTERCEPTION OF

  ANY WIRE OR ORAL COMMUNICATION SHALL SPECIFY-- 

     "(A) THE IDENTITY OF THE PERSON, IF KNOWN, WHOSE
COMMUNICATIONS ARE TO BE INTERCEPTED; 

     "(B) THE NATURE AND LOCATION OF THE COMMUNICATIONS FACILITIES

  AS TO WHICH, OR THE PLACE WHERE, AUTHORITY TO INTERCEPT IS

  GRANTED; 

     "(C) A PARTICULAR DESCRIPTION OF THE TYPE OF COMMUNICATION

  SOUGHT TO BE INTERCEPTED, AND A STATEMENT OF THE PARTICULAR

  OFFENSE TO WHICH IT RELATES; 

     "(D) THE IDENTITY OF THE AGENCY AUTHORIZED TO INTERCEPT THE

  COMMUNICATIONS, AND OF THE PERSON AUTHORIZING THE APPLICATION;

  AND 

     "(E) THE PERIOD OF TIME DURING WHICH SUCH INTERCEPTION IS

  AUTHORIZED, INCLUDING A STATEMENT AS TO WHETHER OR NOT THE

  INTERCEPTION SHALL AUTOMATICALLY TERMINATE WHEN THE DESCRIBED

  COMMUNICATION HAS BEEN FIRST OBTAINED." 

/3/ TITLE 18 U.S.C. 2518(6) PROVIDES, IN PERTINENT PART: 

     WHENEVER AN ORDER AUTHORIZING INTERCEPTION IS ENTERED PURSUANT

  TO THIS CHAPTER, THE ORDER MAY REQUIRE REPORTS TO BE MADE TO THE

JUDGE WHO ISSUED THE ORDER SHOWING WHAT PROGRESS HAS BEEN MADE

  TOWARD ACHIEVEMENT OF THE AUTHORIZED OBJECTIVE AND THE NEED FOR

  CONTINUED INTERCEPTION.  SUCH REPORTS SHALL BE MADE AT SUCH

  INTERVALS AS THE JUDGE MAY REQUIRE." 

/4/  THE TRAVEL ACT, 18 U.S.C. 1952, PROVIDES: 

     "(A) WHOEVER TRAVELS IN INTERSTATE OR FOREIGN COMMERCE OR USES

ANY FACILITY IN INTERSTATE OR FOREIGN COMMERCE, INCLUDING THE

  MAIL, WITH INTENT TO-- 

     "(1) DISTRIBUTE THE PROCEEDS OF ANY UNLAWFUL ACTIVITY; OR 

     "(2) COMMIT ANY CRIME OF VIOLENCE TO FURTHER ANY UNLAWFUL
ACTIVITY; OR 

"(3) OTHERWISE PROMOTE, MANAGE, ESTABLISH, CARRY ON, OR

FACILITATE THE PROMOTION, MANAGEMENT, ESTABLISHMENT, OR CARRYING

  ON, OF ANY UNLAWFUL ACTIVITY, "AND THEREAFTER PERFORMS OR

  ATTEMPTS TO PERFORM ANY OF THE ACTS SPECIFIED IN SUBPARAGRAPHS

  (1), (2), AND (3), SHALL BE FINED NOT MORE THAN $10,000 OR

  IMPRISONED FOR NOT MORE THAN FIVE YEARS, OR BOTH. 

     "(B) AS USED IN THIS SECTION 'UNLAWFUL ACTIVITY' MEANS (1) ANY

  BUSINESS ENTERPRISE INVOLVING GAMBLING, LIQUOR ON WHICH THE

  FEDERAL EXCISE TAX HAS NOT BEEN PAID, NARCOTICS, OR CONTROLLED

  SUBSTANCES (AS DEFINED IN SECTION 102(6) OF THE CONTROLLED

  SUBSTANCES ACT) OR PROSTITUTION OFFENSES IN VIOLATION OF THE LAWS

  OF THE STATE IN WHICH THEY ARE COMMITTED OR OF THE UNITED STATES,

  OR (2) EXTORTION, BRIBERY, OR ARSON IN VIOLATION OF THE LAWS OF

  THE STATE IN WHICH COMMITTED OR OF THE UNITED STATES. 

     "(C) INVESTIGATIONS OF VIOLATIONS UNDER THIS SECTION INVOLVING

  LIQUOR SHALL BE CONDUCTED UNDER THE SUPERVISION OF THE SECRETARY

  OF THE TREASURY." 

      THE INDICTMENT IN THIS CASE STATED THAT THE ALLEGED GAMBLING

  ACTIVITIES ATTRIBUTED TO THE KAHNS WERE IN VIOLATION OF ILL. REV.

  STAT., C. 38, 28- 1(A), (2), AND (10). 

/5/  TITLE 18 U.S.C. 2517(4) PROVIDES THAT: 

     NO OTHERWISE PRIVILEGED WIRE OR ORAL COMMUNICATION INTERCEPTED

 IN ACCORDANCE WITH, OR IN VIOLATION OF, THE PROVISIONS OF THIS

  CHAPTER SHALL LOSE ITS PRIVILEGED CHARACTER." 

/6/  TITLE 18 U.S.C. 2518(10)(B) GIVES THE UNITED STATES THE RIGHT
TO TAKE AN INTERLOCUTORY APPEAL FROM AN ORDER GRANTING A MOTION TO
SUPPRESS INTERCEPTED WIRE COMMUNICATIONS.  IN ADDITION, 18 U.S.C. 3731
GENERALLY PROVIDES FOR APPEALS BY THE GOVERNMENT FROM PRETRIAL ORDERS
SUPPRESSING EVIDENCE. 

/7/  THE KAHNS' CROSS-PETITION FOR CERTIORARI, RAISING THE MARITAL
PRIVILEGE ARGUMENT, WAS DENIED.  411 U.S. 986. 

/8/  SUCH ISSUES ARE CURRENTLY SUB JUDICE IN UNITED STATES V.
GIORDANO.  NO. 72 - 1057, AND UNITED STATES V. CHAVEZ, NO. 72 - 1319. 

/9/  IN RELEVANT PART, 18 U.S.C. 2518(5) REQUIRES THAT:

  EVERY ORDER AND EXTENSION THEREOF SHALL CONTAIN A PROVISION THAT
THE AUTHORIZATION TO

  INTERCEPT . . . SHALL BE CONDUCTED IN SUCH A WAY AS TO MINIMIZE
THE INTERCEPTION OF

  COMMUNICATIONS NOT OTHERWISE SUBJECT TO INTERCEPTION UNDER THIS
CHAPTER . . ." 

/10/  SEE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, PUB.
L. 90 - 351, TIT. III, 801(B) AND (D), 82 STAT. 211; S. REP. NO. 1097,
90TH CONG., 2D SESS., 66. 

/11/  SEE ID., 801(C), 82 STAT. 211; REP. NO. 1097, 90TH CONG. 2D
SESS., 66-76. 

/12/  IT IS TRUE, AS THE COURT OF APPEALS NOTED, THAT 18 U.S.C.
PARAS. 2518(1)(C) AND 2518(3)(C) REQUIRE THE APPLICATION TO
DEMONSTRATE, AND THE JUDGE AUTHORIZING ANY WIRE INTERCEPTION TO FIND,
THAT "NORMAL INVESTIGATIVE PROCEDURES" HAVE EITHER FAILED OR APPEAR
UNLIKELY TO SUCCEED.  THIS LANGUAGE, HOWEVER, IS SIMPLY DESIGNED TO
ASSURE THAT WIRETAPPING IS NOT RESORTED TO IN SITUATIONS WHERE
TRADITIONAL INVESTIGATIVE TECHNIQUES WOULD SUFFICE TO EXPOSE THE
CRIME.  SEE GENERALLY S. REP. NO. 1097, 90TH CONG., 2D SESS., 101. 
ONCE THE NECESSITY FOR THE INTERCEPTION HAS BEEN SHOWN, 2518(1)(C) AND
2518(3)(C) DO NOT IMPOSE AN ADDITIONAL REQUIREMENT THAT THE GOVERNMENT
INVESTIGATE ALL PERSONS WHO MAY BE USING THE SUBJECT TELEPHONE IN ORDER
TO DETERMINE THEIR POSSIBLE COMPLICITY. 

/13/ TITLE 18 U.S.C. 2518(4)(C) REQUIRES THAT AN ORDER AUTHORIZING
WIRE INTERCEPTIONS CONTAIN: CONTAIN: 

"A PARTICULAR DESCRIPTION OF THE TYPE OF COMMUNICATION SOUGHT TO BE
INTERCEPTED, AND A STATEMENT OF THE PARTICULAR OFFENSE TO WHICH IT
RELATES."  SEE ALSO 18 U.S.C. 2518(1)(B)(III), IMPOSING A SIMILAR
REQUIREMENT AS TO THE APPLICATION FOR A WIRETAP ORDER. 

BUT CF. 18 U.S.C. 2517(5), PROVIDING THAT UNDER CERTAIN
CIRCUMSTANCES INTERCEPTED CONVERSATIONS INVOLVING CRIMES OTHER THAN
THOSE IDENTIFIED IN THE ORDER MAY BE USED IN EVIDENCE. 

/14/  SEE N. 9, SUPRA. 

/15/  THE FALLACY IN THE COURT OF APPEALS'"GENERAL WARRANT"
APPROACH MAY BE ILLUSTRATED BY EXAMINATION OF AN ANALOGOUS CONVENTIONAL
SEARCH AND SEIZURE.  IF A WARRANT HAD BEEN ISSUED, UPON A SHOWING OF
PROBABLE CAUSE, TO SEARCH THE KAHN RESIDENCE FOR PHYSICAL RECORDS OF
GAMBLING OPERATIONS, THERE COULD BE NO QUESTION THAT A SUBSEQUENT
SEIZURE OF SUCH RECORDS BEARING MINNIE KAHN'S HANDWRITING WOULD BE
FULLY LAWFUL, DESPITE THE FACT THAT SHE HAD NOT BEEN IDENTIFIED IN THE
WARRANT OR INDEPENDENTLY INVESTIGATED.  IN FACT, AS LONG AS THE
PROPERTY TO BE SEIZED IS DESCRIBED WITH SUFFICIENT SPECIFICITY, EVEN A
WARRANT FAILING TO NAME THE OWNER OF THE PREMISES AT WHICH A SEARCH IS
DIRECTED, WHILE NOT THE BEST PRACTICE, HAS BEEN HELD TO PASS MUSTER
UNDER THE FOURTH AMENDMENT.  SEE HANGER V. UNITED STATES, 398 F.2D 91,
99 (CA8); MILLER V. SIGLER.  353 F.2D 424, 428 (CA8) (DICTUM); DIXON V.
UNITED STATES, 211 F.2D 547, 549 (CA5); CARNEY V. UNITED STATES, 79
F.2D 821, 822 (CA6); UNITED STATES V. FITZMAURICE, 45 F.2D 133, 135
(CA2) (L. HAND, J.); MASCOLO, SPECIFICITY REQUIREMENTS FOR WARRANTS
UNDER THE FOURTH AMENDMENT:  DEFINING THE ZONE OF PRIVACY, 73 DICK.  L.
REV. 1, 21.  SEE ALSO UNITED STATES V. FIORELLA, 468 F.2D 688, 691
(CA2) ("THE FOURTH AMENDMENT REQUIRES A WARRANT TO DESCRIBE ONLY 'THE
PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED,' NOT THE
PERSONS FROM WHOM THINGS WILL BE SEIZED"). 

/16/  BY REFERRING TO THE CONVERSATIONS OF KAHN AND OTHERS "TO AND
FROM"  THE TWO TELEPHONES, THE ORDER CLEARLY ENVISIONED THAT THE
"OTHERS"  MIGHT BE EITHER RECEIVING OR TRANSMITTING GAMBLING
INFORMATION FROM THE TWO KAHN TELEPHONES.  YET IT COULD HARDLY BE
EXPECTED IN THESE INSTANCES THAT IRVING KAHN WOULD ALWAYS BE THE PERSON
ON THE OTHER END OF THE LINE, ESPECIALLY SINCE EITHER BETTORS OR KAHN'S
CONFEDERATES IN THE GAMBLING BUSINESS MIGHT OFTEN HAVE OCCASION TO DIAL
THE TELEPHONE NUMBERS IN ISSUE. 

/17/  SUCH A SITUATION MIGHT OBTAIN IF A BETTOR REVEALED TO LAW
ENFORCEMENT AUTHORITIES THAT HE HAD REPEATEDLY CALLED A CERTAIN
TELEPHONE NUMBER IN ORDER TO PLACE WAGERS, BUT HAD NEVER BEEN TOLD THE
NAME OF THE PERSON AT THE OTHER END OF THE LINE. 

/18/  IN FACT, THE SENATE REJECTED AN AMENDMENT TO TITLE III THAT
WOULD HAVE PROVIDED THAT ONLY THE CONVERSATIONS OF THOSE SPECIFICALLY
NAMED IN THE WIRETAP ORDER COULD BE ADMITTED INTO EVIDENCE.  114 CONG.
REC. 14718 (1968) (AMENDMENT 735). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

AS A RESULT OF OUR DECISION IN BERGER V. NEW YORK, 388 U.S. 41, A
WIRETAP--LONG CONSIDERED TO BE A SPECIAL KIND OF A "SEARCH" AND
"SEIZURE"--WAS BROUGHT UNDER THE REACH OF THE FOURTH AMENDMENT.  /1/
THE DOMINANT FEATURE OF THAT AMENDMENT WAS THE COMMAND THAT "NO
WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE"--A REQUIREMENT WHICH
CONGRESS WROTE INTO 18 U.S.C. 2518.  /2/  BY 2518.(3), THE JUDGE
ISSUING THE WARRANT MUST BE SATISFIED BY THE FACTS SUBMITTED BY THE
POLICE THAT THERE IS "PROBABLE CAUSE" FOR BELIEF THAT "AN INDIVIDUAL"
IS COMMITTING THE DESCRIBED OFFENSE, 2518(3)(A); THAT THERE IS
"PROBABLE CAUSE" FOR BELIEF THAT PARTICULAR COMMUNICATIONS CONCERNING
THE OFFENSE WILL BE ATTAINED BY INTERCEPTION, PARA. 2518(3)(B); THAT
NORMAL INVESTIGATIVE PROCEDURES HAVE BEEN TRIED BUT HAVE FAILED OR
REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED OR TO BE TOO DANGEROUS,
PARA. 2518(3)(C), AND THAT THERE IS "PROBABLE CAUSE" FOR BELIEF THAT
NAMED FACILITIES ARE BEING USED OR ARE ABOUT TO BE USED IN THE
COMMISSION OF THE NAMED OFFENSE, 2518(3)(D).  THE ACT GOES ON TO STATE
THAT THE JUDGE MUST SPECIFY "THE IDENTITY OF THE PERSON, IF KNOWN,
WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED."  2518(4)(A). 

THE JUDGE IN THE PRESENT CASE DESCRIBED THE TELEPHONES TO BE TAPPED
AND FOUND PROBABLE CAUSE TO BELIEVE "IRVING KAHN AND OTHERS AS YET
UNKNOWN"  WERE CONNECTED WITH THE COMMISSION OF SPECIFIED INTERSTATE
CRIMES.  THE JUDICIAL ORDER AUTHORIZED SPECIAL FEDERAL AGENTS TO
"INTERCEPT WIRE COMMUNICATIONS OF IRVING KAHN AND OTHERS AS YET
UNKNOWN" CONCERNING THESE CRIMES. 

THE AGENTS INTERCEPTED INCRIMINATING CALLS MADE BY IRVING KAHN AND
ALSO INCRIMINATING CALLS MADE BY HIS WIFE, MINNIE KAHN.  THE DISTRICT
COURT ON MOTIONS TO SUPPRESS DISALLOWED USE OF THE CONVERSATIONS OF
MINNIE KAHN; AND THE COURT OF APPEALS AGREED, SAYING THAT THE PROBABLE
CAUSE ORDER MADE IT NECESSARY FOR THE GOVERNMENT TO MEET TWO
REQUIREMENTS:  (1) "THAT IRVING KAHN BE A PARTY TO THE CONVERSATIONS,
AND (2) THAT HIS CONVERSATIONS INTERCEPTED BE WITH 'OTHERS AS YET
UNKNOWN,'" 471 F.2D 191, 195.  THAT SEEMS TO BE A COMMONSENSE
INTERPRETATION, FOR IRVING KAHN WHEN USING A PHONE TALKS NOT TO HIMSELF
BUT WITH "OTHERS" WHO AT THE TIME WERE "UNKNOWN."  TO CONSTRUE THE
WARRANT AS ALLOWING A SEARCH OF THE CONVERSATIONS OF ANYONE PUTTING IN
CALLS ON THE KAHN TELEPHONE AMOUNTS, AS THE COURT OF APPEALS SAID, "TO
A VIRTUAL GENERAL WARRANT IN VIOLATION" OF MRS. KAHN'S RIGHTS, ID., AT
197. 

WHETHER THE SEARCH WOULD SATISFY THE FOURTH AMENDMENT IS NOT BEFORE
US, THE DECISION BELOW BEING BASED SOLELY ON THE ACT OF CONGRESS. 
SEIZURE OF THE WORDS OF MRS. KAHN IS NOT SPECIFIED IN THE WARRANT.  THE
NARROW SCOPE OF THE SEARCH THAT WAS AUTHORIZED WAS LIMITED TO MR. KAHN
AND THOSE WHOM HE CALLED OR WHO CALLED HIM. 

CONGRESS IN PASSING THE PRESENT ACT LEGISLATED, OF COURSE, IN LIGHT
OF THE GENERAL WARRANT.  THE GENERAL WARRANT HISTORICALLY INCLUDED A
LICENSE TO SEARCH FOR EVERYTHING IN A NAMED PLACE AS WELL AS A LICENSE
TO SEARCH ALL AND ANY PLACES IN THE DISCRETION OF THE OFFICERS. 
FRISBIE V. BUTLER, 1 KIRBY 213 (CONN.); /3/  QUINCY'S MASS. REP. 1761 -
1772, APP. I. 

IN LIGHT OF THE PREJUDICE AGAINST GENERAL WARRANTS WHICH I BELIEVE
CONGRESS SHARED, /4/  I WOULD NOT ALLOW MRS. KAHN'S CONVERSATIONS TO BE
IMPLIEDLY COVERED BY THE WARRANT, FOR TO DO SO ALLOWS A SEARCH OF THE
ENTIRE LIST OF OUTGOING AND INCOMING CALLS TO THE KAHN TELEPHONES, EVEN
THOUGH NO SHOWING OF PROBABLE CAUSE HAD BEEN MADE CONCERNING ANY MEMBER
OF THE HOUSEHOLD OTHER THAN MR. KAHN. 

I CANNOT BELIEVE THAT CONGRESS SANCTIONED THAT PRACTICE. 

IN THE FIRST PLACE, THOUGH THE AGENTS JUST HEARD MRS. KAHN USING THE
PHONE ON MARCH 21 AND THOUGH THEY CONTINUED THEIR SURVEILLANCE UNTIL
MARCH 25, THEY TOOK NO STEPS TO BROADEN THE WARRANT TO INCLUDE MRS.
KAHN.  /5/ 

THERE WAS TIME /6/  TO OBTAIN A WARRANT CONCERNING MRS. KAHN.  I
ASSUME THAT ONE COULD HAVE BEEN OBTAINED BETWEEN MARCH 21 AND MARCH
25.  THEN A JUDGE WOULD HAVE DECIDED THE PARTICULARITY OF THE SEARCH OF
THE KAHN HOUSEHOLD. 

UNDER TODAY'S DECISION A WIRETAP WARRANT APPARENTLY NEED SPECIFY BUT
ONE NAME AND A NATIONAL DRAGNET BECOMES OPERATIVE.  MEMBERS OF THE
FAMILY OF THE SUSPECT, VISITORS IN HIS HOME, DOCTORS, MINISTERS,
MERCHANTS, TEACHERS, ATTORNEYS, AND EVERYONE HAVING ANY POSSIBLE
CONNECTION WITH THE KAHN HOUSEHOLD ARE CAUGHT UP IN THIS WEB. 

I WOULD AFFIRM THE JUDGEMENT BELOW. 

/1/  AMENDMENT IV:  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR
PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON
PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED." 

/2/  TITLE 18 U.S.C. 2518 PROVIDES IN PERTINENT PART: 

     "(1) EACH APPLICATION FOR AN ORDER AUTHORIZING OR APPROVING
THE

  INTERCEPTION OF A WIRE OR ORAL COMMUNICATION SHALL BE MADE IN

  WRITING UPON OATH OR AFFIRMATION TO A JUDGE OF COMPETENT

  JURISDICTION AND SHALL STATE THE APPLICANT'S AUTHORITY TO MAKE

  SUCH APPLICATION.  EACH APPLICATION SHALL INCLUDE THE FOLLOWING

  INFORMATION: 

      "(B) A FULL AND COMPLETE STATEMENT OF THE FACTS AND

  CIRCUMSTANCES RELIED UPON BY THE APPLICANT, TO JUSTIFY HIS BELIEF

  THAT AN ORDER SHOULD BE ISSUED, INCLUDING . . . (IV) THE IDENTITY

  OF THE PERSON, IF KNOWN, COMMITTING THE OFFENSE AND WHOSE

  COMMUNICATIONS ARE TO BE INTERCEPTED;

        .          .          .          . 

     "(3) UPON SUCH APPLICATION THE JUDGE MAY ENTER AN EX PARTE

ORDER, AS REQUESTED OR AS MODIFIED, AUTHORIZING OR APPROVING

  INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS WITHIN THE

  TERRITORIAL JURISDICTION OF THE COURT IN WHICH THE JUDGE IS

  SITTING, IF THE JUDGE DETERMINES ON THE BASIS OF THE FACTS

  SUBMITTED BY THE APPLICANT THAT--

        .        .          .          . 

     "(C) NORMAL INVESTIGATIVE PROCEDURES HAVE BEEN TRIED AND HAVE

  FAILED OR REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED OR

  TO BE TOO DANGEROUS;

        .          .          .          . 

     "(4) EACH ORDER AUTHORIZING OR APPROVING THE INTERCEPTION OF

  ANY WIRE OR ORAL COMMUNICATION SHALL SPECIFY-- 

     "(A) THE IDENTITY OF THE PERSON, IF KNOWN, WHOSE
COMMUNICATIONS ARE TO BE INTERCEPTED." 

/3/  THE WARRANT IN THE FRISBIE CASE READ IN RELEVANT PART: 

"(YOU ARE COMMANDED FORTHWITH TO SEARCH ALL SUSPECTED PLACES AND
PERSONS THAT THE COMPLAINANT THINKS PROPER, TO FIND HIS LOST PORK, AND
TO CAUSE THE SAME, AND THE PERSON WITH WHOM IT SHALL BE FOUND, OR
SUSPECTED TO HAVE TAKEN THE SAME, AND HAVE HIM TO APPEAR BEFORE SOME
PROPER AUTHORITY, TO BE EXAMINED ACCORDING TO LAW."  1 KIRBY 213 -
214. 

THE COURT RULED: 

     "WITH REGARD TO THE WARRANT--ALTHOUGH IT IS THE DUTY OF A

  JUSTICE OF THE PEACE GRANTING A SEARCH WARRANT (IN DOING WHICH HE

  ACTS JUDICIALLY) TO LIMIT THE SEARCH TO SUCH PARTICULAR PLACE OR

PLACES, AS HE, FROM THE CIRCUMSTANCES, SHALL JUDGE THERE IS

  REASON TO SUSPECT; AND THE ARREST TO SUCH PERSON OR PERSONS AS

  THE GOODS SHALL BE FOUND WITH:  AND THE WARRANT IN THE PRESENT

  CASE, BEING GENERAL, TO SEARCH ALL PLACES, AND ARREST ALL

  PERSONS, THE COMPLAINANT SHOULD SUSPECT, IS CLEARLY ILLEGAL";

  ID., AT 215. 

/4/  THE EXPLICIT REQUIREMENTS OF THE WIRETAPPING PROVISIONS OF
TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, 18
U.S.C. 2510 ET SEQ., AND THEIR LEGISLATIVE HISTORY MANIFEST A
CONGRESSIONAL EFFORT TO PREVENT LAW ENFORCEMENT AGENTS FROM PROCEEDING
BY WAY OF GENERAL SEARCH WARRANTS.  SECTION 2518(4)(A), OF COURSE,
REQUIRES THAT A WIRETAP AUTHORIZATION ORDER IDENTIFY THE PERSON, IF
KNOWN, WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED.  SECTIONS 2518(4)(B)
AND (C) REQUIRE THAT THE ORDER ALSO SPECIFY THE NATURE AND LOCATION OF
THE COMMUNICATIONS FACILITIES AS TO WHICH, OR THE PLACE WHERE,
AUTHORITY TO INTERCEPT IS GRANTED, AND ALSO PARTICULARLY DESCRIBE THE
TYPE OF COMMUNICATION TO BE INTERCEPTED AND THE PARTICULAR OFFENSE TO
WHICH IT RELATES.  CONGRESS ALSO PROVIDED THAT NO ORDER "MAY AUTHORIZE
OR APPROVE THE INTERCEPTION OF ANY WIRE OR ORAL COMMUNICATION FOR ANY
PERIOD LONGER THAN IS NECESSARY TO ACHIEVE THE OBJECTIVE OF THE
AUTHORIZATION."  18 U.S.C. 2518(5).  AN AUTHORIZATION ORDER, MOREOVER,
MUST SPECIFY THAT THE ELECTRONIC SURVEILLANCE "SHALL BE CONDUCTED IN
SUCH A WAY AS TO MINIMIZE THE INTERCEPTION OF COMMUNICATIONS NOT
OTHERWISE SUBJECT TO INTERCEPTION UNDER THIS CHAPTER."  IBID. 

BEFORE A WIRETAP ORDER CAN ISSUE, TITLE III ALSO DEMANDS THAT LAW
ENFORCEMENT OFFICERS APPLYING FOR THE ORDER PROVIDE THE JUDGE WITH
INFORMATION DESCRIBING THE OFFENSE, THE FACILITY, THE TYPE OF
COMMUNICATION, AND THE IDENTITY OF THE PERSON, IF KNOWN, COMMITTING THE
OFFENSE AND WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED, 18 U.S.C.
2518(1)(B), BECAUSE IN THE VIEW OF CONGRESS "(EACH OF THESE
REQUIREMENTS REFLECTS THE CONSTITUTIONAL COMMAND OF
PARTICULARIZATION."  S. REP. NO. 1097, 90TH CONG., 2D SESS., 101. 
FURTHERMORE, 2518(3) REQUIRES THE JUDGE, BEFORE ISSUING A WIRETAP
ORDER, TO FIND THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT AN
INDIVIDUAL IS INVOLVED WITH A PARTICULAR OFFENSE, THAT PARTICULAR
COMMUNICATIONS CONCERNING THAT OFFENSE WILL BE INTERCEPTED, AND THAT
SPECIFIC FACILITIES ARE BEING USED OR ABOUT TO BE USED IN CONNECTION
WITH THE COMMISSION OF SUCH OFFENSE, OR ARE LEASED TO, LISTED TO, OR
COMMONLY USED BY THE INDIVIDUAL.  CONGRESS INSERTED THESE PROVISIONS
BECAUSE IT FELT THAT, WITH THEM, "THE ORDER WILL LINK UP SPECIFIC
PERSON, SPECIFIC OFFENSE, AND SPECIFIC PLACE.  TOGETHER THEY ARE
INTENDED TO MEET THE TEST OF THE CONSTITUTION THAT ELECTRONIC
SURVEILLANCE TECHNIQUES BE USED ONLY UNDER THE MOST PRECISE AND
DISCRIMINATE CIRCUMSTANCES, WHICH FULLY COMPLY WITH THE REQUIREMENT OF
PARTICULARITY."  ID., AT 102. 

SEE ALSO S. REP. NO. 1097, 90TH CONG., 2D SESS., 74 - 75; 114 CONG.
REC. 14712, 14750 (REMARKS OF SEN. MC CLELLAN); ID., AT 14728 (SEN.
TYDINGS); ID., AT 14715 (SEN. TOWER); ID., AT 14763 (SEN. PERCY); ID.,
AT 14748 (SEN. MUNDT). 

/5/  IF THE STATEMENT MADE BY MRS. KAHN ON THE TELEPHONE MARCH 21
WAS INCRIMINATING, THERE WOULD BE A QUESTION WHETHER IT COULD BE THE
BASIS FOR OBTAINING A BROADENING OF THE WARRANT TO INCLUDE HER WITHOUT
VIOLATING SILVERTHORNE LUMBER CO. V. UNTIED STATES, 251 U.S. 385.  IN
THAT CASE PAPERS HAD BEEN SEIZED BY OFFICERS IN VIOLATION OF THE
PARTIES' FOURTH AMENDMENT RIGHTS BUT USED BY THE OFFICIALS AS A BASIS
FOR DEMANDING IN PROPER FORM THAT THE OWNERS PRODUCE THE PAPERS.  MR.
JUSTICE HOLMES, SPEAKING FOR THE COURT, REJECTED THAT PROCEDURE,
SAYING: 

"THE ESSENCE OF A PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE
IN A CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE
USED BEFORE THE COURT BUT THAT IT SHALL NOT BE USED AT ALL.  OF COURSE,
THIS DOES NOT MEAN THAT THE FACTS THUS OBTAINED BECOME SACRED AND
INACCESSIBLE.  IF KNOWLEDGE OF THEM IS GAINED FROM AN INDEPENDENT
SOURCE THEY MAY BE PROVED LIKE ANY OTHERS, BUT THE KNOWLEDGE GAINED BY
THE GOVERNMENT'S OWN WRONG CANNOT BE USED BY IT IN THE WAY PROPOSED." 
ID. AT 392. 

/6/  CF. JOHNSON V. UNITED STATES, 333 U.S. 10; UNITED STATES V. DI
RE, 332 U.S. 581; TRUPIANO V. UNITED STATES, 334 U.S. 699. 

DEPUTY SOLICITOR GENERAL FREY ARGUED THE CAUSE FOR THE UNITED
STATES, WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT
ATTORNEY GENERAL PETERSEN, HARRIET S. SHAPIRO, AND JEROME M. FEIT. 

ANNA R. LAVIN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HER ON THE
BRIEF WAS EDWARD J. CALIHAN, JR.
..END :



UNITED STATES V. MATLOCK, 415 U.S. 164 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 72 - 1355.  ARGUED DECEMBER 10 - 11, 1973--DECIDED

           FEBRUARY 20, 1974; 476 F.2D 1083, REVERSED AND

           REMANDED. 


    RESPONDENT WAS ARRESTED IN THE FRONT YARD OF A HOUSE IN WHICH

  HE LIVED ALONG WITH A MRS. GRAFF (DAUGHTER OF THE LESSEES) AND

  OTHERS.  THE ARRESTING OFFICERS, WHO DID NOT ASK HIM WHICH ROOM

  HE OCCUPIED OR WHETHER HE WOULD CONSENT TO A SEARCH, WERE THEN

  ADMITTED TO THE HOUSE BY MRS. GRAFF AND, WITH HER CONSENT BUT

  WITHOUT A WARRANT, SEARCHED THE HOUSE, INCLUDING A BEDROOM, WHICH

  MRS. GRAFF TOLD THEM WAS JOINTLY OCCUPIED BY RESPONDENT AND

  HERSELF, AND IN A CLOSET OF WHICH THE OFFICERS FOUND AND SEIZED

MONEY.  RESPONDENT WAS INDICTED FOR BANK ROBBERY, AND MOVED TO

  SUPPRESS THE SEIZED MONEY AS EVIDENCE.  THE DISTRICT COURT HELD

  THAT WHERE CONSENT BY A THIRD PERSON IS RELIED UPON AS

  JUSTIFICATION FOR A SEARCH, THE GOVERNMENT MUST SHOW, INTER ALIA,

  NOT ONLY THAT IT REASONABLY APPEARED TO TO THE OFFICERS THAT THE

  PERSON HAD AUTHORITY TO CONSENT, BUT ALSO THAT THE PERSON HAD

  ACTUAL AUTHORITY TO PERMIT THE SEARCH, AND THAT THE GOVERNMENT

  HAD NOT SATISFACTORILY PROVED THAT MRS. GRAFF HAD SUCH

  AUTHORITY.  ALTHOUGH MRS. GRAFF'S STATEMENTS TO THE OFFICERS THAT

  SHE AND RESPONDENT OCCUPIED THE SAME BEDROOM WERE DEEMED

  ADMISSIBLE EXTRAJUDICIAL STATEMENTS TO PROVE THE TRUTH OF THE

FACTS THEREIN AVERRED, AND THE SAME WAS HELD TO BE TRUE OF

 STATEMENTS BY BOTH MRS. GRAFF AND RESPONDENT THAT THEY WERE

  MARRIED, WHICH WAS NOT THE CASE.  THE COURT OF APPEALS AFFIRMED. 

  HELD: 

     1.  WHEN THE PROSECUTION SEEKS TO JUSTIFY A WARRANTLESS SEARCH

  BY PROOF OF VOLUNTARY CONSENT IT IS NOT LIMITED TO PROOF THAT

  CONSENT WAS GIVEN BY THE DEFENDANT, BUT MAY SHOW THAT PERMISSION

  TO SEARCH WAS OBTAINED FROM A THIRD PARTY WHO POSSESSED COMMON

AUTHORITY OVER OR OTHER SUFFICIENT RELATIONSHIP TO THE PREMISES

  OR EFFECTS SOUGHT TO BE INSPECTED.  PP. 169- 172. 

    2.  IT WAS ERROR TO EXCLUDE FROM EVIDENCE AT THE SUPPRESSION

  HEARINGS MRS. GRAFF'S OUT-OF-COURT STATEMENTS RESPECTING THE

  JOINT OCCUPANCY OF THE BEDROOM, AS WELL AS THE EVIDENCE THAT BOTH

  RESPONDENT AND MRS. GRAFF HAD REPRESENTED THEMSELVES AS HUSBAND

  AND WIFE.  PP. 172 - 177. 

     (A) THERE IS NO AUTOMATIC RULE AGAINST RECEIVING HEARSAY

  EVIDENCE IN SUPPRESSION HEARINGS (WHERE THE TRIAL COURT ITSELF

  CAN ACCORD SUCH EVIDENCE SUCH WEIGHT AS IT DEEMS DESIRABLE), AND

  UNDER THE CIRCUMSTANCES HERE, WHERE THE DISTRICT COURT WAS

  SATISFIED THAT MRS. GRAFF'S OUT-OF-COURT STATEMENTS HAD IN FACT

  BEEN MADE AND NOTHING IN THE RECORD RAISED DOUBTS ABOUT THEIR

  TRUTHFULNESS, THERE WAS NO APPARENT REASON TO EXCLUDE THE

  DECLARATIONS IN THE COURSE OF RESOLVING THE ISSUES RAISED AT THE

  SUPPRESSION HEARINGS.  PP. 172 - 176. 

     (B) MRS. GRAFF'S STATEMENTS WERE AGAINST HER PENAL INTEREST,

  SINCE EXTRAMARITAL COHABITATION IS A STATE CRIME.  THUS THEY

  CARRIED THEIR OWN INDICIA OF RELIABILITY AND SHOULD HAVE BEEN

  ADMITTED AS EVIDENCE AT THE SUPPRESSION HEARINGS, EVEN IF THEY

WOULD NOT HAVE BEEN ADMISSIBLE AT RESPONDENT'S TRIAL.  PP. 176 -

  177. 

     3.  ALTHOUGH, GIVEN THE ADMISSIBILITY OF THE EXCLUDED

  STATEMENTS, THE GOVERNMENT APPARENTLY SUSTAINED ITS BURDEN OF

  PROOF AS TO MRS. GRAFF'S AUTHORITY TO CONSENT TO THE SEARCH, THE

  DISTRICT COURT SHOULD RECONSIDER THE SUFFICIENCY OF THE EVIDENCE

  IN LIGHT OF THIS COURT'S OPINION.  PP. 177 - 178. 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

  C.J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 

DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 178.  BRENNAN,

  J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED,

  POST, P. 188. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN SCHNECKLOTH V. BUSTAMONTE, 412 U.S. 218 (1973), THE COURT
REAFFIRMED THE PRINCIPLE THAT THE SEARCH OF PROPERTY, WITHOUT WARRANT
AND WITHOUT PROBABLE CAUSE, BUT WITH PROPER CONSENT VOLUNTARILY GIVEN,
IS VALID UNDER THE FOURTH AMENDMENT.  THE QUESTION NOW BEFORE US IS
WHETHER THE EVIDENCE PRESENTED BY THE UNITED STATES WITH RESPECT TO THE
VOLUNTARY CONSENT OF A THIRD PARTY TO SEARCH THE LIVING QUARTERS OF THE
RESPONDENT WAS LEGALLY SUFFICIENT TO RENDER THE SEIZED MATERIALS
ADMISSIBLE IN EVIDENCE AT THE RESPONDENT'S CRIMINAL TRIAL. 

        I 

RESPONDENT MATLOCK WAS INDICTED IN FEBRUARY 1971 FOR THE ROBBERY OF
A FEDERALLY INSURED BANK IN WISCONSIN, IN VIOLATION OF 18 U.S.C. 2113. 
A WEEK LATER, HE FILED A MOTION TO SUPRESS EVIDENCE SEIZED BY LAW
ENFORCEMENT OFFICERS FROM A HOME IN THE TOWN OF PARDEEVILLE, WISCONSIN,
IN WHICH HE HAD . BEEN LIVING.  SUPPRESSION HEARINGS FOLLOWED.  AS
FOUND BY THE DISTRICT COURT, THE FACTS WERE THAT RESPONDENT WAS
ARRESTED IN THE YARD IN FRONT OF THE PARDEEVILLE HOME ON NOVEMBER 12,
1970.  THE HOME WAS LEASED FROM THE OWNER BY MR. AND MRS. MARSHALL. 
LIVING IN THE HOME WERE MRS. MARSHALL, SEVERAL OF HER CHILDREN,
INCLUDING HER DAUGHTER MRS. GAYLE GRAFF, GAYLE'S THREE-YEAR-OLD SON,
AND RESPONDENT.  ALTHOUGH THE OFFICERS WERE AWARE AT THE TIME OF THE
ARREST THAT RESPONDENT LIVED IN THE HOUSE, THEY DID NOT ASK HIM WHICH
ROOM HE OCCUPIED OR WHETHER HE WOULD CONSENT TO A SEARCH.  THREE OF THE
ARRESTING OFFICERS WENT TO THE DOOR OF THE HOUSE AND WERE ADMITTED BY
MRS. GRAFF, WHO WAS DRESSED IN A ROBE AND WAS HOLDING HER SON IN HER
ARMS.  THE OFFICERS TOLD HER THEY WERE LOOKING FOR MONEY AND A GUN AND
ASKED IF THEY COULD SEARCH THE HOUSE.  ALTHOUGH DENIED BY MRS. GRAFF AT
THE SUPPRESSION HEARINGS, IT WAS FOUND THAT SHE CONSENTED VOLUNTARILY
TO THE SEARCH OF THE HOUSE, INCLUDING THE EAST BEDROOM ON THE SECOND
FLOOR WHICH SHE SAID WAS JOINTLY OCCUPIED BY MATLOCK AND HERSELF.  THE
EAST BEDROOM WAS SEARCHED AND THE EVIDENCE AT ISSUE HERE, $4,995 IN
CASH, WAS FOUND IN A DIAPER BAG IN THE ONLY CLOSET IN THE ROOM.  /1/
THE ISSUE CAME TO BE WHETHER MRS. GRAFF'S RELATIONSHIP TO THE EAST
BEDROOM WAS SUFFICIENT TO MAKE HER CONSENT TO THE SEARCH VALID AGAINST
RESPONDENT MATLOCK. 

THE DISTRICT COURT RULED THAT BEFORE THE SEIZED EVIDENCE COULD BE
ADMITTED AT TRIAL THE GOVERNMENT HAD TO PROVE FIRST, THAT IT REASONABLY
APPEARED TO THE SEARCHING OFFICERS "JUST PRIOR TO THE SEARCH, THAT
FACTS EXIST WHICH WILL RENDER THE CONSENTER'S CONSENT BINDING ON THE
PUTATIVE DEFENDANT," AND SECOND, THAT "JUST PRIOR TO THE SEARCH, FACTS
DO EXIST WHICH RENDER THE CONSENTER'S CONSENT BINDING ON THE PUTATIVE
DEFENDANT."  THERE WAS NO REQUIREMENT THAT EXPRESS PERMISSION FROM
RESPONDENT TO MRS. GRAFF TO ALLOW THE OFFICERS TO SEARCH BE SHOWN; IT
WAS SUFFICIENT TO SHOW HER AUTHORITY TO CONSENT IN HER OWN RIGHT, BY
REASON OF HER RELATIONSHIP TO THE PREMISES.  THE FIRST REQUIREMENT WAS
HELD SATISFIED BECAUSE OF RESPONDENT'S PRESENCE IN THE YARD OF THE
HOUSE AT THE TIME OF HIS ARREST, BECAUSE OF GAYLE GRAFF'S RESIDENCE IN
THE HOUSE FOR SOME TIME AND HER PRESENCE IN THE HOUSE JUST PRIOR TO THE
SEARCH, AND BECAUSE OF HER STATEMENT TO THE OFFICERS THAT SHE AND THE
RESPONDENT OCCUPIED THE EAST BEDROOM.  /2/ 

THE DISTRICT COURT CONCLUDED, HOWEVER, THAT THE GOVERNMENT HAD
FAILED TO SATISFY THE SECOND REQUIREMENT AND HAD NOT SATISFACTORILY
PROVED MRS. GRAFF'S ACTUAL AUTHORITY TO CONSENT TO THE SEARCH.  TO
ARRIVE AT THIS RESULT, THE DISTRICT COURT HELD THAT ALTHOUGH GAYLE
GRAFF'S STATEMENTS TO THE OFFICERS THAT SHE AND THE RESPONDENT OCCUPIED
THE EAST BEDROOM WERE ADMISSIBLE TO PROVE THE GOOD-FAITH BELIEF OF THE
OFFICERS, THEY WERE NEVERTHELESS EXTRAJUDICIAL STATEMENTS INADMISSIBLE
TO PROVE THE TRUTH OF THE FACTS THEREIN AVERRED.  THE SAME WAS TRUE OF
MRS. GRAFF'S ADDITIONAL STATEMENTS TO THE OFFICERS LATER ON NOVEMBER 12
THAT SHE AND THE RESPONDENT HAD BEEN SLEEPING TOGETHER IN THE EAST
BEDROOM REGULARLY, INCLUDING THE EARLY MORNING OF NOVEMBER 12, AND THAT
SHE AND RESPONDENT SHARED THE USE OF A DRESSER IN THE ROOM.  THERE WAS
ALSO TESTIMONY THAT BOTH GAYLE GRAFF AND RESPONDENT, AT VARIOUS TIMES
AND PLACES AND TO VARIOUS PERSONS, HAD MADE STATEMENTS THAT THEY WERE
WIFE AND HUSBAND.  THESE STATEMENTS WERE DEEMED INADMISSIBLE TO PROVE
THAT RESPONDENT AND GAYLE GRAFF . WERE MARRIED, WHICH THEY WERE NOT, OR
THAT THEY WERE SLEEPING TOGETHER AS A HUSBAND AND WIFE MIGHT BE
EXPECTED TO DO.  HAVING EXCLUDED THESE DECLARATIONS, THE DISTRICT COURT
THEN CONCLUDED THAT THE REMAINING EVIDENCE WAS INSUFFICIENT TO PROVE
"TO A REASONABLE CERTAINTY, BY THE GREATER WEIGHT OF THE CREDIBLE
EVIDENCE, THAT AT THE TIME OF THE SEARCH, AND FOR SOME PERIOD OF
REASONABLE LENGTH THERETOFORE, GAYLE GRAFF AND THE DEFENDANT WERE
LIVING TOGETHER IN THE EAST BEDROOM."  THE REMAINING EVIDENCE, BRIEFLY
STATED, WAS THAT MRS. GRAFF AND RESPONDENT HAD LIVED TOGETHER IN A ONE
BEDROOM APARTMENT IN FLORIDA FROM APRIL TO AUGUST 1970; THAT THEY LIVED
AT THE MARSHALL HOME IN PARDEEVILLE FROM AUGUST TO NOVEMBER 12, 1970;
THAT THEY WERE SEVERAL TIMES SEEN GOING UP OR DOWN STAIRS IN THE HOUSE
TOGETHER; AND THAT THE EAST BEDROOM, WHICH RESPONDENT WAS SHOWN TO HAVE
RENTED FROM MR. AND MRS. MARSHALL, CONTAINED EVIDENCE THAT IT WAS ALSO
LIVED IN BY A MAN AND A WOMAN.  /3/  THE DISTRICT COURT THOUGHT THESE
ITEMS OF EVIDENCE CREATED AN "INFERENCE" OR AT LEAST A "MILD INFERENCE"
THAT RESPONDENT AND GAYLE GRAFF AT TIMES SLEPT TOGETHER IN THE EAST
BEDROOM, BUT IT DEEMED THEM INSUFFICIENT TO SATISFY THE GOVERNMENT'S
BURDEN OF PROOF.  THE DISTRICT COURT ALSO REJECTED THE GOVERNMENT'S
CLAIM THAT IT WAS REQUIRED TO PROVE ONLY THAT AT THE TIME OF THE SEARCH
THE OFFICERS COULD REASONABLY HAVE CONCLUDED THAT GAYLE GRAFF'S
RELATIONSHIP TO THE EAST BEDROOM WAS SUFFICIENT TO MAKE HER CONSENT
BINDING ON RESPONDENT. 

THE COURT OF APPEALS AFFIRMED THE JUDGMENT OF THE DISTRICT COURT IN
ALL RESPECTS.  476 F.2D 1083.  WE GRANTED CERTIORARI, 412 U.S. 917, AND
NOW REVERSE THE COURT OF APPEALS. 

        II 

IT HAS BEEN ASSUMED BY THE PARTIES AND THE COURTS BELOW THAT THE
VOLUNTARY CONSENT OF ANY JOINT OCCUPANT OF A RESIDENCE TO SEARCH THE
PREMISES JOINTLY OCCUPIED IS VALID AGAINST THE CO-OCCUPANT, PERMITTING
EVIDENCE DISCOVERED IN THE SEARCH TO BE USED AGAINST HIM AT A CRIMINAL
TRIAL.  THIS BASIC PROPOSITION WAS ACCEPTED BY THE SEVENTH CIRCUIT IN
THIS CASE, 476 F.2D, AT 1086, AS IT HAD BEEN IN PRIOR CASES, /4/  AND
HAS GENERALLY BEEN APPLIED IN SIMILAR CIRCUMSTANCES BY OTHER COURTS OF
APPEALS, /5/  AND VARIOUS STATE COURTS.  /6/  THIS COURT LEFT OPEN, IN
AMOS V. UNITED STATES, 255 U.S. 313, 317 (1921), THE QUESTION WHETHER A
WIFE'S PERMISSION TO SEARCH THE RESIDENCE IN WHICH SHE LIVED WITH HER
HUSBAND COULD "WAIVE HIS CONSTITUTIONAL RIGHTS," BUT MORE RECENT
AUTHORITY HERE CLEARLY INDICATES THAT THE CONSENT OF ONE WHO POSSESSES
COMMON AUTHORITY OVER PREMISES OR EFFECTS IS VALID AS AGAINST THE
ABSENT, NONCONSENTING PERSON WITH WHOM THAT AUTHORITY IS SHARED.  IN
FRAZIER V. CUPP, 394 U.S. 731, 740 (1969), THE COURT "DISMISSED RATHER
QUICKLY"  THE CONTENTION THAT THE CONSENT OF THE PETITIONER'S COUSIN TO
THE SEARCH OF A DUFFEL BAG, WHICH WAS BEING USED JOINTLY BY BOTH MEN
AND HAD BEEN LEFT IN THE COUSIN'S HOME, WOULD NOT JUSTIFY THE SEIZURE
OF PETITIONER'S CLOTHING FOUND INSIDE; JOINT USE OF THE BAG RENDERED
THE COUSIN'S AUTHORITY TO CONSENT TO ITS SEARCH CLEAR.  INDEED, THE
COURT WAS UNWILLING TO ENGAGE IN THE "METAPHYSICAL SUBTLETIES" RAISED
BY FRAZIER'S CLAIM THAT HIS COUSIN ONLY HAD PERMISSION TO USE ONE
COMPARTMENT WITHIN THE BAG.  BY ALLOWING THE COUSIN THE USE OF THE BAG,
AND BY LEAVING IT IN HIS HOUSE, FRAZIER WAS HELD TO HAVE ASSUMED THE
RISK THAT HIS COUSIN WOULD ALLOW SOMEONE ELSE TO LOOK INSIDE.  IBID.
MORE GENERALLY, IN SCHNECKLOTH V. BUSTAMONTE, 412 U.S. AT 245 - 246, WE
NOTED THAT OUR PRIOR RECOGNITION OF THE CONSTITUTIONAL VALIDITY OF
"THIRD PARTY CONSENT" SEARCHES IN CASES LIKE FRAZIER AND COOLIDGE V.
NEW HAMPSHIRE, 403 U.S. 443, 487 - 490 (1971), SUPPORTED THE VIEW THAT
A CONSENT SEARCH IS FUNDAMENTALLY DIFFERENT IN NATURE FROM THE WAIVER
OF A TRIAL RIGHT.  THESE CASES AT LEAST MAKE CLEAR THAT WHEN THE
PROSECUTION SEEKS TO JUSTIFY A WARRANTLESS SEARCH BY PROOF OF VOLUNTARY
CONSENT, IT IS NOT LIMITED TO PROOF THAT CONSENT WAS GIVEN BY THE
DEFENDANT, BUT MAY SHOW THAT PERMISSION TO SEARCH WAS OBTAINED FROM A
THIRD PARTY WHO POSSESSED COMMON AUTHORITY OVER OR OTHER SUFFICIENT
RELATIONSHIP TO THE PREMISES OR EFFECTS SOUGHT TO BE INSPECTED.  /7/
THE ISSUE NOW BEFORE US IS WHETHER THE GOVERNMENT MADE THE REQUISITE
SHOWING IN THIS CASE. 

        III 

THE DISTRICT COURT EXCLUDED FROM EVIDENCE AT THE SUPPRESSION
HEARINGS, AS INADMISSIBLE HEARSAY, THE OUT-OF-COURT STATEMENTS OF MRS.
GRAFF WITH RESPECT TO HER AND RESPONDENT'S JOINT OCCUPANCY AND USE OF
THE EAST BEDROOM, AS WELL AS THE EVIDENCE THAT BOTH RESPONDENT AND MRS.
GRAFF AT VARIOUS TIMES AND TO VARIOUS PERSONS HAD REPRESENTED
THEMSELVES AS HUSBAND AND WIFE.  THE COURT OF APPEALS AFFIRMED THE
RULING.  BOTH COURTS WERE IN ERROR. 

AS AN INITIAL MATTER WE FAIL TO UNDERSTAND WHY, ON ANY APPROACH TO
THE CASE, THE OUT-OF-COURT REPRESENTATIONS OF RESPONDENT HIMSELF THAT
HE AND GAYLE GRAFF WERE HUSBAND AND WIFE WERE CONSIDERED TO BE
INADMISSIBLE AGAINST HIM.  WHETHER OR NOT MRS. GRAFF'S STATEMENTS WERE
HEARSAY, THE RESPONDENT'S OWN OUT-OF-COURT ADMISSIONS WOULD SURMOUNT
ALL OBJECTIONS BASED ON THE HEARSAY RULE BOTH AT THE SUPPRESION
HEARINGS AND AT THE TRIAL ITSELF, AND WOULD BE ADMISSIBLE FOR WHATEVER
INFERENCES THE TRIAL JUDGE COULD REASONABLY DRAW CONCERNING JOINT
OCCUPANCY OF THE EAST BEDROOM.  SEE 4 J. WIGMORE, EVIDENCE 1048 (J.
CHADBOURN REV. 1972); C. MCCORMICK, EVIDENCE 262(2D ED. 1972).  /8/ 

AS FOR MRS. GRAFF'S STATEMENTS TO THE SEARCHING OFFICERS, IT SHOULD
BE RECALLED THAT THE RULES OF EVIDENCE NORMALLY APPLICABLE IN CRIMINAL
TRIALS DO NOT OPERATE WITH FULL FORCE AT HEARINGS BEFORE THE JUDGE TO
DETERMINE THE ADMISSIBILITY OF EVIDENCE.  /9/  IN BRINEGAR V. UNTIED
STATES, 338 U.S. 160 (1949), IT WAS OBJECTED THAT HEARSAY HAD BEEN USED
AT THE HEARING ON A CHALLENGE TO THE ADMISSIBILITY OF EVIDENCE SEIZED
WHEN A CAR WAS SEARCHED AND THAT OTHER EVIDENCE USED AT THE HEARING WAS
HELD INADMISSIBLE AT THE TRIAL ITSELF.  THE COURT SUSTAINED THE TRIAL
COURT'S RULINGS.  IT DISTINGUISHED BETWEEN THE RULES APPLICABLE TO
PROCEEDINGS TO DETERMINE PROBABLE CAUSE FOR ARREST AND SEARCH AND THOSE
GOVERNING THE CRIMINAL TRIAL ITSELF--"THERE IS A LARGE DIFFERENCE
BETWEEN THE TWO THINGS TO BE PROVED, AS WELL AS BETWEEN THE TRIBUNALS
WHICH DETERMINE THEM, AND THEREFORE A LIKE DIFFERENCE IN THE QUANTA AND
MODES OF PROOF REQUIRED TO ESTABLISH THEM."  ID., AT 173.  THAT CERTAIN
EVIDENCE WAS ADMITTED IN PRELIMINARY PROCEEDINGS BUT EXCLUDED AT THE
TRIAL--AND THE COURT THOUGHT BOTH RULINGS PROPER--WAS THOUGHT MERELY TO
"ILLUSTRATE THE DIFFERENCE IN STANDARDS AND LATITUDE ALLOWED IN PASSING
UPON THE DISTINCT ISSUES OF PROBABLE CAUSE AND GUILT."  ID., AT 174. 

THAT THE SAME RULES OF EVIDENCE GOVERNING CRIMINAL JURY TRIALS ARE
NOT GENERALLY THOUGHT TO GOVERN HEARINGS BEFORE A JUDGE TO DETERMINE
EVIDENTIARY QUESTIONS WAS CONFIRMED ON NOVEMBER 20, 1972, WHEN THE
COURT TRANSMITTED TO CONGRESS THE PROPOSED FEDERAL RULES OF EVIDENCE. 
RULE 104(A) PROVIDES THAT PRELIMINARY QUESTIONS CONCERNING
ADMISSIBILITY ARE MATTERS FOR THE JUDGE AND THAT IN PERFORMING THIS
FUNCTION HE IS NOT BOUND BY THE RULES OF EVIDENCE EXCEPT THOSE WITH
RESPECT TO PRIVILEGES.  /10/  ESSENTIALLY THE SAME LANGUAGE ON THE
SCOPE OF THE PROPOSED RULES IS REPEATED IN RULE 1101(D)(1).  /11/  THE
RULES IN THIS RESPECT REFLECT THE GENERAL VIEWS OF VARIOUS AUTHORITIES
ON EVIDENCE.  5 J. WIGMORE, EVIDENCE 1385 (3D ED. 1940); C. MCCORMICK,
EVIDENCE 53, P. 122 N. 91 (2D ED. 1972).  SEE ALSO MAGUIRE & EPSTEIN,
RULES OF EVIDENCE IN PRELIMINARY CONTROVERSIES AS TO ADMISSIBILITY, 36
YALE L. J. 1101 (1927). 

SEARCH WARRANTS ARE REPEATEDLY ISSUED ON EX PARTE AFFIDAVITS
CONTAINING OUT-OF-COURT STATEMENTS OF IDENTIFIED AND UNIDENTIFIED
PERSONS.  UNITED STATES V. VENTRESCA, 380 U.S. 102, 108 (1965).  AN
ARREST AND SEARCH WITHOUT A WARRANT WERE INVOLVED IN MC CRAY V.
ILLINOIS, 386 U.S. 300 (1967).  AT THE INITIAL SUPPRESSION HEARING, THE
POLICE PROVED PROBABLE CAUSE FOR THE ARREST BY TESTIFYING TO THE OUT-OF
COURT STATEMENTS OF AN UNIDENTIFIED INFORMER.  THE GOVERNMENT WOULD
HAVE BEEN OBLIGATED TO PRODUCE THE INFORMER AND TO PUT HIM ON THE STAND
HAD IT WANTED TO USE HIS TESTIMONY AT DEFENDANT'S TRIAL, BUT WE
SUSTAINED THE USE OF HIS OUT-OF-COURT STATEMENTS AT THE SUPPRESSION
HEARING, AS WELL AS THE GOVERNMENT'S REFUSAL TO IDENTIFY HIM.  IN THE
COURSE OF THE OPINION, WE SPECIFICALLY REJECTED THE CLAIM THAT
DEFENDANT'S RIGHT TO CONFRONTATION UNDER THE SIXTH AMENDMENT AND DUE
PROCESS CLAUSE HAD IN ANY WAY BEEN VIOLATED.  WE ALSO MADE CLEAR THAT
THERE WAS NO CONTRARY RULE GOVERNING PROCEEDINGS IN THE FEDERAL
COURTS.     THERE IS, THEREFORE, MUCH TO BE SAID FOR THE PROPOSITION
THAT IN PROCEEDINGS WHERE THE JUDGE HIMSELF IS CONSIDERING THE
ADMISSIBILITY OF EVIDENCE, THE EXCLUSIONARY RULES, ASIDE FROM RULES OF
PRIVILEGE, SHOULD NOT BE APPLICABLE; AND THE JUDGE SHOULD RECEIVE THE
EVIDENCE AND GIVE IT SUCH WEIGHT AS HIS JUDGMENT AND EXPERIENCE
COUNSEL.  /12/  HOWEVER THAT MAY BE, CERTAINLY THERE SHOULD BE NO
AUTOMATIC RULE AGAINST THE RECEPTION OF HEARSAY EVIDENCE IN SUCH
PROCEEDINGS, AND IT SEEMS EQUALLY CLEAR TO US THAT THE TRIAL JUDGE
SHOULD NOT HAVE EXCLUDED MRS. GRAFF'S STATEMENTS IN THE CIRCUMSTANCES
PRESENT HERE. 

IN THE FIRST PLACE, THE COURT WAS QUITE SATISFIED THAT THE
STATEMENTS HAD IN FACT BEEN MADE.  SECOND, THERE IS NOTHING IN THE
RECORD TO RAISE SERIOUS DOUBTS ABOUT THE TRUTHFULNESS OF THE STATEMENTS
THEMSELVES.  MRS. GRAFF HARBORED NO HOSTILITY OR BIAS AGAINST
RESPONDENT THAT MIGHT CALL HER STATEMENTS INTO QUESTION.  INDEED, SHE
TESTIFIED ON HIS BEHALF AT THE SUPPRESSION HEARINGS.  MRS. GRAFF
RESPONDED TO INQUIRY AT THE TIME OF THE SEARCH THAT SHE AND RESPONDENT
OCCUPIED THE EAST BEDROOM TOGETHER.  A FEW MINUTES LATER, HAVING LED
THE OFFICERS TO THE BEDROOM, SHE STATED THAT SHE AND RESPONDENT SHARED
THE ONE DRESSER IN THE ROOM AND THAT THE WOMAN'S CLOTHING IN THE ROOM
WAS HERS.  LATER THE SAME DAY, SHE STATED TO THE OFFICERS THAT SHE AND
RESPONDENT HAD SLEPT TOGETHER REGULARLY IN THE ROOM, INCLUDING THE
EARLY MORNING OF THAT VERY DAY.  THESE STATEMENTS WERE CONSISTENT WITH
ONE ANOTHER.  THEY WERE ALSO CORROBORATED BY OTHER EVIDENCE RECEIVED AT
THE SUPPRESSION HEARINGS.  MRS. GRAFF AND RESPONDENT HAD LIVED TOGETHER
IN FLORIDA FOR SEVERAL MONTHS IMMEDIATELY PRIOR TO COMING TO WISCONSIN,
WHERE THEY LIVED IN THE HOUSE IN QUESTION AND WHERE THEY WERE SEEN
GOING UPSTAIRS TOGETHER IN THE EVENING; RESPONDENT WAS THE TENANT OF
THE EAST BEDROOM AND THAT ROOM BORE EVERY EVIDENCE THAT IT WAS ALSO
OCCUPIED BY A WOMAN; RESPONDENT INDICATED IN PRIOR STATEMENTS TO
VARIOUS PEOPLE THAT HE AND MRS. GRAFF WERE HUSBAND AND WIFE.  UNDER
THESE CIRCUMSTANCES THERE WAS NO APPARENT REASON FOR THE JUDGE TO
DISTRUST THE EVIDENCE AND TO EXCLUDE MRS. GRAFF'S DECLARATIONS FROM HIS
OWN CONSIDERATION FOR WHATEVER THEY MIGHT BE WORTH IN RESOLVING, ONE
WAY OR ANOTHER, THE ISSUES RAISED AT THE SUPPRESSION HEARINGS. 

IF THERE IS REMAINING DOUBT ABOUT THE MATTER, IT SHOULD BE DISPELLED
BY ANOTHER CONSIDERATION:  COHABITATION OUT OF WEDLOCK WOULD NOT SEEM
TO BE A RELATIONSHIP THAT ONE WOULD FALSELY CONFESS.  RESPONDENT AND
GAYLE GRAFF WERE NOT MARRIED, AND COHABITATION OUT OF WEDLOCK IS A
CRIME IN THE STATE OF WISCONSIN.  /13/  MRS. GRAFF'S STATEMENTS WERE
AGAINST HER PENAL INTEREST AND THEY CARRIED THEIR OWN INDICIA OF
RELIABILITY.  THIS WAS SUFFICIENT IN ITSELF, WE THINK, TO WARRANT
ADMITTING THEM TO EVIDENCE FOR CONSIDERATION BY THE TRIAL JUDGE.  THIS
IS THE CASE EVEN IF THEY WOULD BE INADMISSIBLE HEARSAY AT RESPONDENT'S
TRIAL EITHER BECAUSE STATEMENTS AGAINST PENAL INTEREST ARE TO BE
EXCLUDED UNDER DONNELLY V. UNITED STATES, 228 U.S. 243, 272 - 277
(1913), OR BECAUSE, IF RULE 804(B)(4) OF THE PROPOSED FEDERAL RULES OF
EVIDENCE BECOMES THE LAW, SUCH DECLARATIONS WOULD BE ADMISSIBLE ONLY IF
THE -DECLARANT IS UNAVAILABLE AT THE TIME OF THE TRIAL. 

FINALLY, WE NOTE THAT MRS. GRAFF WAS A WITNESS FOR THE RESPONDENT AT
THE SUPPRESSION HEARINGS.  AS SUCH, SHE WAS AVAILABLE FOR CROSS
EXAMINATION, AND THE RISK OF PREJUDICE, IF THERE WAS ANY, FROM THE USE
OF HEARSAY WAS REDUCED.  INDEED, SHE ENTIRELY DENIED THAT SHE EITHER
GAVE CONSENT OR MADE THE NOVEMBER 12 STATEMENTS TO THE OFFICERS THAT
THE DISTRICT COURT EXCLUDED FROM EVIDENCE.  WHEN ASKED WHETHER IN FACT
SHE AND RESPONDENT HAD LIVED TOGETHER, SHE CLAIMED HER PRIVILEGE
AGAINST SELF-INCRIMINATION AND DECLINED TO ANSWER. 

        IV 

IT APPEARS TO US, GIVEN THE ADMISSIBILITY OF MRS. GRAFF'S AND
RESPONDENT'S OUT-OF-COURT STATEMENTS, THAT THE GOVERNMENT SUSTAINED ITS
BURDEN OF PROVING BY THE PREPONDERANCE OF THE EVIDENCE THAT MRS.
GRAFF'S VOLUNTARY CONSENT TO SEARCH THE EAST BEDROOM WAS LEGALLY
SUFFICIENT TO WARRANT ADMITTING INTO EVIDENCE THE $4,995 FOUND IN THE
DIAPER BAG.  /14/  BUT WE PREFER THAT THE DISTRICT COURT FIRST
RECONSIDER THE SIFFICIENCY OF THE EVIDENCE IN THE LIGHT OF THIS
DECISION AND OPINION.  THE JUDGEMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CASE IS REMANDED TO THE COURT OF APPEALS WITH
DIRECTIONS TO REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

      SO ORDERED. 

/1/  THERE WERE OTHER SEIZURES IN THE HOUSE AND THE EAST BEDROOM ON
NOVEMBER 12, BUT NONE OF THEM IS AT ISSUE HERE. 

/2/  MRS. GRAFF WAS NOT ADVISED THAT SHE HAD A RIGHT TO REFUSE TO
CONSENT TO THE SEARCH.  THE DISTRICT COURT EXPRESSED NO VIEW AS TO
WHETHER THE ABSENCE OF SUCH ADVICE WOULD RENDER HER CONSENT INVALID,
SINCE IT FOUND THAT HER CONSENT, HOWEVER VOLUNTARY, WOULD NOT BIND THE
RESPONDENT WITH REGARD TO THE SEARCH OF HIS ROOM.  SCHNECKLOTH V.
BUSTAMONTE, 412 U.S. 218 (1973), HAS SINCE MADE CLEAR, OF COURSE, THAT
IT IS NOT ESSENTIAL FOR THE PROSECUTION TO SHOW THAT THE CONSENTER KNEW
OF THE RIGHT TO REFUSE CONSENT IN ORDER TO ESTABLISH THAT THE CONSENT
WAS VOLUNTARY. 

/3/  WHEN THE OFFICERS SEARCHED THE EAST BEDROOM, TWO PILLOWS WERE
ON THE DOUBLE BED, WHICH HAD BEEN SLEPT IN, MEN'S AND WOMEN'S CLOTHES
WERE IN THE CLOSET, AND MEN'S AND WOMEN'S CLOTHES WERE ALSO IN SEPARATE
DRAWERS OF THE DRESSER. 

/4/  E.G., UNITED STATES V. STONE, 471 F.2D 170, 173 (1972), CERT.
DENIED, 411 U.S. 931 (1973); UNITED STATES V. WIXOM, 441 F.2D 623, 624
625 (1971); UNITED STATES V. AIRDO, 380 F.2D 103, 106 - 107, CERT.
DENIED, 389 U.S. 913 (1967).  EACH OF THESE CASES CITED WITH APPROVAL
UNITED STATES V. STERAS, 210 F.2D 69, 74 (CA7), CERT. DENIED SUB NOM.
SKALLY V. UNITED STATES, 347 U.S. 935 (1954), WHICH EXPRESSED THE RULE
"THAT WHERE TWO PERSONS HAVE EQUAL RIGHTS TO THE USE OR OCCUPATION OF
PREMISES, EITHER MAY GIVE CONSENT TO A SEARCH, AND THE EVIDENCE THUS
DISCLOSED CAN BE USED AGAINST EITHER." 

/5/  E.G. UNITED STATES V. ELLIS, 461 F.2D 962, 967 - 968 (CA2),
CERT. DENIED, 409 U.S. 866 (1972); UNITED STATES V. CATALDO, 433 F.2D
38, 40 (CA2 1970), CERT. DENIED, 401 U.S. 977 (1971); UNITED STATES EX
REL. CABEY V. MAZURKIEWICZ, 431 F.2D 839, 842 - 843 (CA3 1970); UNITED
STATES V. THOMPSON, 421 F.2D 373, 375 - 376 (CA5), VACATED ON OTHER
GROUNDS, 400 U.S. 17 (1970); GURLESKI V. UNITED STATES, 405 F.2D 253,
260 - 262 (CA5 1968), CERT. DENIED, 395 U.S. 981 (1969); WRIGHT V.
UNITED STATES, 389 F.2D 996, 998 - 999 (CA8 1968); ROBERTS V. UNITED
STATES, 332 F.2D 892, 894 - 898 (CA8 1964), CERT. DENIED, 389 U.S. 980
(1965); UNITED STATES V. WILSON, 447 F.2D 1, 5-6 (CA9 1971); NELSON V.
CALIFORNIA, 346 F.2D 73, 77 (CA9), CERT. DENIED, 382 U.S. 964 (1965);
BURGE V. UNITED STATES, 342 F.2D 408, 413 (CA9), CERT. DENIED, 382 U.S.
829 (1965). 

/6/  E.G., PEOPLE V. HOWARD, 166 CAL. APP. 2D 638, 651, 334 P.2D
105, 114 (1958); PEOPLE V. GORG.  45 CAL. 2D 776, 783, 291 P.2D 469,
473 (1955); PEOPLE V. HASKELL, 41 (LL. 2D 25, 28 - 29, 241 N.E.2D 430,
432 (1968); PEOPLE V. WALKER, 34 ILL. 2D 23, 27 - 28, 213 N.E.2D 552,
555 (1966); COMMONWEALTH EX REL. CABEY V. RUNDLE, 432 PA. 466.  248
A.2D 197 (1968); STATE V. CAIRO, 74 R.I. 377, 385 - 386, 60 A.2D 841,
845 (1948); BURGE V. STATE, 443 S.W.2D 720, 722 - 723 (CT. CRIM. APP.
TEX.), CERT. DENIED, 396 U.S. 934 (1969). 

/7/  COMMON AUTHORITY IS, OF COURSE, NOT TO BE IMPLIED FROM THE MERE
PROPERTY INTEREST A THIRD PARTY HAS IN THE PROPERTY.  THE AUTHORITY
WHICH JUSTIFIES THE THIRD-PARTY CONSENT DOES NOT REST UPON THE LAW OF
PROPERTY, WITH ITS ATTENDANT HISTORICAL AND LEGAL REFINEMENTS, SEE
CHAPMAN V. UNITED STATES, 365 U.S. 610 (1961) (LANDLORD COULD NOT
VALIDLY CONSENT TO THE SEARCH OF A HOUSE HE HAD RENTED TO ANOTHER),
STONER V. CALIFORNIA, 376 U.S. 483 (1964) (NIGHT HOTEL CLERK COULD NOT
VALIDLY CONSENT TO SEARCH OF CUSTOMER'S ROOM) BUT RESTS RATHER ON
MUTUAL USE OF THE PROPERTY BY PERSONS GENERALLY HAVING JOINT ACCESS OR
CONTROL FOR MOST PURPOSES, SO THAT IT IS REASONABLE TO RECOGNIZE THAT
ANY OF THE CO-INHABITANTS HAS THE RIGHT TO PERMIT THE INSPECTION IN HIS
OWN RIGHT AND THAT THE OTHERS HAVE ASSUMED THE RISK THAT ONE OF THEIR
NUMBER MIGHT PERMIT THE COMMON AREA TO BE SEARCHED. 

/8/  RULE 801(D)(2)(A) OF THE PROPOSED FEDERAL RULES OF EVIDENCE,
APPROVED BY THE COURT ON NOVEMBER 20, 1972, AND TRANSMITTED TO
CONGRESS, EXPRESSLY PROVIDES THAT A PARTY'S OWN STATEMENTS OFFERED
AGAINST HIM AT TRIAL ARE NOT HERESAY. 

/9/  BRIDGES V. WIXON, 326 U.S. 135, 153 - 154 (1945), UPON WHICH
RESPONDENT AND THE COURT OF APPEALS RELIED, INVOLVED THE USE OF HEARSAY
AS SUBSTANTIVE EVIDENCE BEARING ON THE QUESTION OF BRIDGES' MEMBERSHIP
IN THE COMMUNIST PARTY, A CHARGE UPON WHICH A DEPORTATION ORDER HAD
BEEN BASED.  IN ADDITION TO THE FACT THAT THE USE OF UNSWORN, UNSIGNED
STATEMENTS VIOLATED THE RULES OF THE BOARD OF IMMIGRATION APPEALS, THE
EVIDENCE WAS ADMITTED TO PROVE CHARGES WHICH DIRECTLY JEOPARDIZED "THE
LIBERTY OF AN INDIVIDUAL,"  ID. AT 154, AND NOT FOR THE PURPOSE OF
DETERMINING A PRELIMINARY QUESTION OF ADMISSIBILITY, AS IN THIS CASE. 

/10/  RULE 104(A) PROVIDES: 

"RULE 104.  PRELIMINARY QUESTIONS 

     "(A) QUESTIONS OF ADMISSIBILITY GENERALLY.  PRELIMINARY

  QUESTIONS CONCERNING THE QUALIFICATION OF A PERSON TO BE A

  WITNESS, THE EXISTENCE OF A PRIVILEGE, OR THE ADMISSIBILITY OF

  EVIDENCE SHALL BE DETERMINED BY THE JUDGE, SUBJECT TO THE

  PROVISIONS OF SUBDIVISION (B).  IN MAKING HIS DETERMINATION HE IS

  NOT BOUND BY THE RULES OF EVIDENCE EXCEPT THOSE WITH RESPECT TO

  PRIVILEGES." 

/11/  RULE 1101(D)(1) PROVIDES: 

     "RULES INAPPLICABLE.  THE RULES (OTHER THAN THOSE WITH RESPECT

  TO PRIVILEGES) DO NOT APPLY IN THE FOLLOWING SITUATIONS: 

      "(1) PRELIMINARY QUESTIONS OF FACT.  THE DETERMINATION OF

  QUESTIONS OF FACT PRELIMINARY TO ADMISSIBILITY OF EVIDENCE WHEN

  THE ISSUE IS TO BE DETERMINED BY THE JUDGE UNDER RULE 104(A)." 

/12/  "SHOULD THE EXCLUSIONARY LAW OF EVIDENCE, 'THE CHILD OF THE
JURY SYSTEM' IN THAYER'S PHRASE, BE APPLIED TO THIS HEARING BEFORE THE
JUDGE?  SOUND SENSE BACKS THE VIEW THAT IT SHOULD NOT, AND THAT THE
JUDGE SHOULD BE EMPOWERED TO HEAR ANY RELEVANT EVIDENCE, SUCH AS
AFFIDAVITS OR OTHER RELIABLE HEARSAY."  C. MCCORMICK, EVIDENCE 53, P.
122 N. 91 (2D ED. 1972). 

/13/ WIS. STAT. 944.20 (1971) PROVIDES: 

"WHOEVER DOES ANY OF THE FOLLOWING MAY BE FINED NOT MORE THAN $500
OR IMPRISONED NOT MORE THAN ONE YEAR IN COUNTY JAIL OR BOTH:  . . . (3)
OPENLY COHABITS AND ASSOCIATES WITH A PERSON HE KNOWS IS NOT HIS SPOUSE
UNDER CIRCUMSTANCES THAT IMPLY SEXUAL INTERCOURSE." 

/14/  ACCORDINGLY, WE DO NOT REACH ANOTHER MAJOR CONTENTION OF THE
UNITED STATES IN BRINGING THIS CASE HERE:  THAT THE GOVERNMENT IN ANY
EVENT HAD ONLY TO SATISFY THE DISTRICT COURT THAT THE SEARCHING
OFFICERS REASONABLY BELIEVED THAT MRS. GRAFF HAD SUFFICIENT AUTHORITY
OVER THE PREMISES TO CONSENT TO THE SEARCH. 

THE GOVERNMENT ALSO CONTENDS THAT THE COURT OF APPEALS IMPOSED AN
UNDULY STRICT STANDARD OF PROOF ON THE GOVERNMENT BY RULING THAT ITS
CASE MUST BE PROVED "TO A REASONABLE CERTAINTY, BY THE GREAT WEIGHT OF
THE CREDIBLE EVIDENCE."  BUT THE DISTRICT COURT REQUIRED ONLY THAT THE
PROOF BE BY THE GREATER WEIGHT OF THE EVIDENCE AND THE COURT OF APPEALS
MERELY AFFIRMED THE DISTRICT COURT'S JUDGMENT.  THERE WAS AN
INADVERTENCE IN ARTICULATING THE APPLICABLE BURDEN OF PROOF, BUT IT
SEEMS TO HAVE BEEN OCCASIONED BY A SIMILAR INADVERTENCE BY THE
GOVERNMENT IN PRESENTING ITS CASE.  IN ANY EVENT, THE CONTROLLING
BURDEN OF PROOF AT SUPPRESSION HEARINGS SHOULD IMPOSE NO GREATER BURDEN
THAN PROOF BY A PREPONDERANCE OF THE EVIDENCE.  SEE LEGO V. TWOMEY, 404
U.S. 477, 488 - 489 (1972).  WE DO NOT UNDERSTAND THE GOVERNMENT TO
CONTEND THAT THE STANDARD EMPLOYED BY THE DISTRICT COURT WAS IN ERROR,
AND WE HAVE NO OCCASION TO CONSIDER WHETHER IT WAS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

RESPONDENT WILLIAM MATLOCK HAS BEEN INDICTED FOR ROBBING A FEDERALLY
INSURED BANK IN VIOLATION OF 18 U.S.C. 2113.  THE ISSUE IN THIS CASE
INVOLVES THE SUPRESSION OF MONEY FOUND IN A CLOSET IN MATLOCK'S BEDROOM
DURING A WARRANTLESS SEARCH OF THE HOME IN WHICH HE LIVED.  THE SEARCH
OF THE HOME, AND OF THE BEDROOM, WAS AUTHORIZED BY ONE GAYLE GRAFF, AND
THE COURT NOW REMANDS THIS CASE FOR THE DISTRICT COURT TO DETERMINE, IN
THE LIGHT OF EVIDENCE WHICH THAT COURT HAD PREVIOUSLY EXCLUDED, WHETHER
MRS. GRAFF WAS IN FACT A JOINT OCCUPANT OF THE BEDROOM WITH SUFFICIENT
AUTHORITY TO CONSENT TO THE SEARCH.  BECAUSE I BELIEVE THAT THE ABSENCE
OF A SEARCH WARRANT IN THIS CASE, WHERE THE AUTHORITIES HAD OPPORTUNITY
TO OBTAIN ONE, IS FATAL, I DISSENT FROM THAT DISPOSITION OF THIS CASE. 

THE HOME WHICH WAS SEARCHED WAS RENTED BY ONE WILLIAM MARSHALL, AND
WAS OCCUPIED BY MEMBERS OF HIS FAMILY, INCLUDING HIS WIFE AND HIS 21
YEAR-OLD DAUGHTER GAYLE GRAFF.  RESPONDENT MATLOCK PAID THE MARSHALLS
FOR THE USE OF A BEDROOM IN THE HOME, WHICH HE APPARENTLY OCCUPIED WITH
GAYLE GRAFF.  RESPONDENT WAS ARRESTED IN THE YARD OF THE HOME ON THE
MORNING OF NOVEMBER 12, 1970.  HE OFFERED NO RESISTANCE, AND WAS
RESTRAINED IN A SQUAD CAR A DISTANCE FROM THE HOME.  IMMEDIATELY
THEREAFTER, OFFICERS WALKED TO THE HOME, WHERE MRS. GRAFF WAS PRESENT. 
THE OFFICERS TOLD HER THEY WERE SEARCHING FOR GUNS AND MONEY, AND ASKED
HER WHETHER MATLOCK LIVED IN THE HOME.  AFTER BEING ASKED BY THE
OFFICERS WHETHER THEY COULD SEARCH THE HOUSE, AND WITHOUT BEING TOLD
THAT SHE COULD WITHHOLD HER CONSENT, MRS. GRAFF PERMITTED A POLICE
SEARCH. 

DURING THIS FIRST SEARCH, THREE OFFICERS ENTERED THE HOUSE.  ONE OF
THE OFFICERS TESTIFIED THAT THEY WALKED THROUGH THE KITCHEN, PANTRY
AREA, FRONT PORCH, AND LIVING ROOM.  THE OFFICERS ASKED WHICH BEDROOM
WAS MATLOCK'S.  AFTER MRS. GRAFF HAD INDICATED THE SECOND-FLOOR BEDROOM
WHICH SHE AND MATLOCK OCCUPIED AND PERMITTED ITS SEARCH, THE OFFICERS
FOUND A DIAPER BAG HALF FULL OF MONEY IN THE BEDROOM CLOSET.  THE
ADMISSIBILITY OF THIS EVIDENCE IS INVOLVED IN THE INSTANT CASE. 

THE OFFICERS LEFT THE HOME, BUT RETURNED A FEW MINUTES LATER FOR A
SECOND SEARCH.  THIS TIME, THEY FOUND CERTAIN OTHER INCRIMINATING ITEMS
IN THE PANTRY AREA.  A THIRD SEARCH WAS MADE IN THE AFTERNOON.  AGAIN,
THE OFFICERS DID NOT SECURE A WARRANT TO SEARCH THE HOME, BUT WAITED
FOR AN OFFICER TO BRING MRS. MARSHALL HOME, AT WHICH POINT THEY SECURED
HER CONSENT TO A SEARCH.  FOUR OFFICERS PARTICIPATED IN THIS SEARCH,
WHICH DISCOVERED FURTHER EVIDENCE DOWNSTAIRS AND IN A DRESSER IN
MATLOCK'S BEDROOM. 

AT NO TIME DID THE OFFICERS PARTICIPATING IN ANY OF THE THREE
SEARCHES, INCLUDING THE FIRST SEARCH INVOLVED IN THIS CASE, ATTEMPT TO
PROCURE A SEARCH WARRANT FROM A JUDICIAL OFFICER.  THE DISTRICT COURT,
IN A FINDING WHICH THE GOVERNMENT DOES NOT CHALLENGE, FOUND THAT THERE
WAS NO EXIGENT CIRCUMSTANCE OR EMERGENCY WHICH COULD PROVIDE AN EXCUSE
FOR THE GOVERNMENT OFFICERS'  FAILURE TO SECURE A WARRANT TO INVADE THE
SECURITY OF THE MARSHALL HOME: 

     "AT NO TIME ON NOVEMBER 12, 1970, WAS A SEARCH WARRANT
OBTAINED

  BY ANY LAW ENFORCEMENT OFFICERS FOR THE PURPOSE OF CONDUCTING A

SEARCH OF THE MARSHALL HOME.  THERE WAS ADEQUATE TIME TO OBTAIN

  ONE OR MORE WARRANTS.  THERE WAS NO EMERGENCY, NOR DANGER TO ANY

  POLICE OFFICER OR OTHER PERSONS WHICH REQUIRED THAT THE SEARCH

  PROCEED WITHOUT AWAITING THE TIME AT WHICH A SEARCH WARRANT COULD

  BE APPLIED FOR.  THE SEARCH OF THE HOUSE WAS NOT INCIDENTAL TO

  THE ARREST OF THE DEFENDANT." 

THIS, I BELIEVE, IS THE CRUCIAL FINDING IN THE CASE, RATHER THAN THE
ULTIMATE RESOLUTION OF THE QUESTION OF GAYLE GRAFF'S "AUTHORITY" TO
CONSENT TO THE SEARCH.  THIS SEARCH IS IMPERMISSIBLE BECAUSE OF THE
FAILURE OF THE OFFICERS TO SECURE A SEARCH WARRANT WHEN THEY HAD THE
OPPORTUNITY TO DO SO. 

THE FOURTH AMENDMENT PROVIDES THAT "(THE RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST
UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND NO
WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR
AFFIRMATION, AND PRRTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND
THE PERSONS OR THINGS TO BE SEIZED."  THE JUDICIAL SCRUTINY PROVIDED BY
THE SECOND CLAUSE OF THE AMENDMENT IS ESSENTIAL TO EFFECTUATING THE
AMENDMENT, AND IS A MEASURE WHEREBY A WARRANT COULD HAVE BEEN OBTAINED
BUT WAS NOT THAT THE ENSUING SEARCH IS "UNREASONABLE" UNDER THE
AMENDMENT.  /1/  THE INTERVENTION OF A JUDICIAL OFFICER GIVES THE
AMENDMENT VITALITY BY RESTRAINING UNNECESSARY AND UNJUSTIFIED SEARCHES
AND INVASIONS OF PRIVACY BEFORE THEY OCCUR.  AT THE SAME TIME, A
WRITTEN WARRANT HELPS ENSURE THAT A SEARCH WILL BE LIMITED IN SCOPE TO
THE AREAS AND OBJECTS NECESSARY TO THE SEARCH BECAUSE BOTH THE "PLACE
TO BE SEARCHED" AND THE "THINGS TO BE SEIZED" MUST BE DESCRIBED WITH
PARTICULARITY.  WE HAVE THEREFORE HELD THAT ONLY THE GRAVEST OF
CIRCUMSTANCES COULD EXCUSE THE FAILURE TO SECURE A PROPERLY ISSUED
SEARCH WARRANT. 

UP TO NOW, A POLICE OFFICER HAD A DUTY TO SECURE A WARRANT WHEN HE
HAD THE OPPORTUNITY TO DO SO, EVEN IF SUBSTANTIAL PROBABLE CAUSE
EXISTED TO JUSTIFY A SEARCH.  IN JOHNSON V. UNITED STATES, 333 U.S. 10,
DECIDED IN 1948, POLICE OFFICERS SMELLED THE UNMISTAKABLE ODOR OF OPIUM
OUTSIDE A HOTEL ROOM.  THEY KNOCKED ON THE DOOR, IDENTIFIED THEMSELVES,
AND TOLD THE OCCUPANT THAT THEY WANTED TO TALK TO HER.  THE OCCUPANT
STEPPED BACK ACQUIESCENTLY AND ADMITTED THE OFFICERS.  WE FOUND THAT
THE ENTRY WAS GRANTED IN SUBMISSION TO AUTHORITY, AND THAT THE ODORS
ALONE WOULD NOT JUSTIFY THE SEARCH WITHOUT A WARRANT, DESPITE THE FACT
THAT THEY WOULD HAVE PROVIDED PROBABLE CAUSE FOR A WARRANT.  SINCE, AS
IN THE INSTANT CASE, NO "EXCEPTIONAL CIRCUMSTANCES"  /2/  WERE CITED
WHICH MIGHT HAVE JUSTIFIED THE WARRANTLESS SEARCH, BUT ONLY "THE
INCONVENIENCE TO THE OFFICERS AND SOME SLIGHT DELAY NECESSARY TO
PREPARE PAPERS AND PRESENT THE EVIDENCE TO A MAGISTRATE," ID., AT 14,
15, WE FOUND THE WARRANTLESS SEARCH UNCONSTITUTIONAL.  MR. JUSTICE
JACKSON EXPLAINED FOR THE COURT THE NEED FOR JUDICIAL INTERVENTION AS A
RESTRAINT OF POLICE CONDUCT BEFORE A SEARCH WAS MADE; AND WHAT HE SAID
IS APPLICABLE TODAY: 

     "THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT GRASPED

  BY ZEALOUS OFFICERS, IS NOT THAT IT DENIED LAW ENFORCEMENT THE

  SUPPORT OF THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM

  EVIDENCE.  ITS PROTECTION CONSISTS IN REQUIRING THAT THOSE

  INFERENCES BE DRAWN BY A NEUTRAL AND DETACHED MAGISTRATE INSTEAD

  OF BEING JUDGED BY THE OFFICER ENGAGED IN THE OFTEN COMPETITIVE

  ENTERPRISE OF FERRETING OUT CRIME . . . CRIME, EVEN IN THE

  PRIVACY OF ONE'S OWN QUARTERS, IS, OF COURSE, OF GRAVE CONCERN TO

  SOCIETY, AND THE LAW ALLOWS SUCH CRIME TO BE REACHED ON PROPER

  SHOWING.  THE RIGHT OF OFFICERS TO THRUST THEMSELVES INTO A HOME

  IS ALSO A GRAVE CONCERN, NOT ONLY TO THE INDIVIDUAL BUT TO A

  SOCIETY WHICH CHOOSES TO DWELL IN REASONABLE SECURITY AND FREEDOM

  FROM SURVEILLANCE.  WHEN THE RIGHT OF PRIVACY MUST REASONABLE

  YIELD TO THE RIGHT OF SEARCH IS, AS A RULE, TO BE DECIDED BY A

  JUDICIAL OFFICER, NOT BY A POLICEMAN OR GOVERNMENT ENFORCEMENT

  AGENT."  ID., AT 13 - 14. 

IN TRUPIANO V. UNITED STATES, 334 U.S. 699, DECIDED IN 1948, THERE
WAS A SEARCH OF AN ILLEGAL DISTILLERY MADE WITHOUT A WARRANT, EVEN
THOUGH THE AGENTS WHO CONDUCTED THE SEARCH HAD AMPLE INFORMATION AND
TIME WITH WHICH TO SECURE A SEARCH WARRANT.  SINCE THERE WAS NO REASON
BUT THE CONVENIENCE OF THE POLICE WHICH COULD JUSTIFY THE WARRANTLESS
SEARCH, WE FOUND IT UNREASONABLE.  THE POLICE, WHEN NOT CONSTRAINED BY
THE LIMITATIONS OF A WARRANT, ARE FREE TO RUMMAGE ABOUT IN THE COURSE
OF THEIR SEARCH.  "(THEY DID PRECISELY WHAT THE FOURTH AMENDMENT WAS
DESIGNED TO OUTLAW . . . NOTHING CIRCUMSCRIBED THEIR ACTIVITIES ON THAT
RAID EXCEPT THEIR OWN GOOD SENSES, WHICH THE AUTHORS OF THE AMENDMENT
DEEMED INSUFFICIENT TO JUSTIFY A SEARCH OR SEIZURE EXCEPT IN
EXCEPTIONAL CIRCUMSTANCES NOT HERE PRESENT."  ID., AT 706 - 707. 
SPEAKING THROUGH MR. JUSTICE MURPHY WE EXPLAINED AGAIN THE REASONS FOR
OUR INSISTENCE ON ADHERENCE TO CONSTITUTIONAL PROCESSES: 

"THIS RULE RESTS UPON THE DESIRABILITY OF HAVING MAGISTRATES RATHER
THAN POLICE OFFICERS DETERMINE WHEN SEARCHES AND SEIZURES ARE
PERMISSIBLE AND WHAT LIMITATIONS SHOULD BE PLACED UPON SUCH ACTIVITIES
. . . IN THEIR UNDERSTANDABLE ZEAL TO FERRET OUT CRIME AND IN THE
EXCITEMENT OF THE CAPTURE OF A SUSPECTED PERSON, OFFICERS ARE LESS
LIKELY TO POSSESS THE DETACHMENT AND NEUTRALITY WITH WHICH THE
CONSTITUTIONAL RIGHTS OF THE SUSPECT MUST BE VIEWED.  TO PROVIDE THE
NECESSARY SECURITY AGAINST UNREASONABLE INTRUSIONS UPON THE PRIVATE
LIVES OF INDIVIDUALS, THE FRAMERS OF THE FOURTH AMENDMENT REQUIRED
ADHERENCE TO JUDICIAL PROCESSES WHEREVER POSSIBLE.  AND SUBSEQUENT
HISTORY HAS CONFIRMED THE WISDOM OF THAT REQUIREMENT."  ID., AT 705. 

LIKEWISE, IN MC DONALD V. UNITED STATES, 335 U.S. 451, ALSO DECIDED
IN 1948, OFFICERS WITH PROBABLE CAUSE TO ENGAGE IN A SEARCH FAILED TO
SECURE A WARRANT, AND WE FOUND THE SEARCH ILLEGAL.  OFFICERS HAD HEARD
AN ADDING MACHINE, FREQUENTLY USED IN NUMBERS OPERATIONS, WHEN OUTSIDE
A ROOMING HOUSE.  ENTERING THE HOUSE THROUGH A WINDOW, THEY LOOKED OVER
THE TRANSOM OF MC DONALD'S ROOM AND SAW GAMBLING PARAPHERNALIA.  THEY
SHOUTED TO MC DONALD TO OPEN HIS ROOM, AND HE DID SO.  AGAIN, THERE WAS
NO GRAVE EMERGENCY WHICH ALONE COULD JUSTIFY THE FAILURE TO SECURE A
WARRANT, ID., AT 455, AND AGAIN WE PATIENTLY REITERATED THE REASONS FOR
OUR INSISTENCE THAT THE POLICE SUBMIT PROPOSED SEARCHES TO PRIOR
JUDICIAL SCRUTINY WHENEVER FEASIBLE: 

     "WE ARE NOT DEALING WITH FORMALITIES.  THE PRESENCE OF A
SEARCH

  WARRANT SERVES A HIGH FUNCTION.  ABSENT SOME GRAVE EMERGENCY, THE

FOURTH AMENDMENT HAS INTERPOSED A MAGISTRATE BETWEEN THE CITIZEN

  AND THE POLICE.  THIS WAS DONE NOT TO SHIELD CRIMINALS NOR TO

  MAKE THE HOME A SAFE HAVEN FOR ILLEGAL ACTIVITIES.  IT WAS DONE

  SO THAT AN OBJECTIVE MIND MIGHT WEIGH THE NEED TO INVADE THAT

  PRIVACY IN ORDER TO ENFORCE THE LAW.  THE RIGHT OF PRIVACY WAS

  DEEMED TOO PRECIOUS TO ENTRUST TO THE DISCRETION OF THOSE WHOSE

  JOB IS THE DETECTION OF CRIME AND THE ARREST OF CRIMINALS.  POWER

  IS A HEADY THING; AND HISTORY SHOWS THAT THE POLICE ACTING ON

  THEIR OWN CANNOT BE TRUSTED.  AND SO THE CONSTITUTION REQUIRES A

  MAGISTRATE TO PASS ON THE DESIRES OF THE POLICE BEFORE THEY

  VIOLATE THE PRIVACY OF THE HOME."  ID., AT 455 - 456. 

JONES V. UNITED STATES, 357 U.S. 493, DECIDED IN 1958, PROVIDES YET
ANOTHER INSTANCE OF OUR RECOGNITION OF THE IMPORTANCE OF ADHERENCE TO
JUDICIAL PROCESSES.  FEDERAL ALCOHOL AGENTS HAD SECURED A WARRANT TO
SEARCH A HOME DURING THE DAYTIME, HAVING OBSERVED SUBSTANTIAL EVIDENCE
THAT ILLEGAL LIQUOR WAS BEING PRODUCED.  RATHER THAN EXECUTING THE
WARRANT, THEY WAITED UNTIL THE EVENING, WHEN THEY ENTERED AND SEARCHED
THE HOME.  WE HELD, SPECIFICALLY THROUGH MR. JUSTICE HARLAN, THAT
PROBABLE CAUSE TO BELIEVE THAT THE HOUSE CONTAINED CONTRABAND WAS NOT
SUFFICIENT TO LEGITIMIZE A WARRANTLESS SEARCH:  "WERE FEDERAL OFFICERS
FREE TO SEARCH WITHOUT A WARRANT MERELY UPON PROBABLE CAUSE TO BELIEVE
THAT CERTAIN ARTICLES WERE WITHIN A HOME, THE PROVISIONS OF THE FOURTH
AMENDMENT WOULD BECOME EMPTY PHRASES, AND THE PROTECTION IT AFFORDS
LARGELY NULLIFIED."  ID., AT 498.     AND, INDEED, THE PROVISIONS OF
THE FOURTH AMENDMENT CAREFULLY AND EXPLICITLY RESTRICTING THE
CIRCUMSTANCES IN WHICH WARRANTS CAN ISSUE AND THE BREADTH OF SEARCHES
HAVE BECOME "EMPTY PHRASES," WHEN THE COURT SANCTIONS THIS SEARCH
CONDUCTED WITHOUT ANY EFFORT BY THE POLICE TO SECURE A VALID SEARCH
WARRANT.  THIS WAS NOT A CASE WHERE A GRAVE EMERGENCY, SUCH AS THE
IMMINENT LOSS OF EVIDENCE OR DANGER TO HUMAN LIFE, MIGHT EXCUSE THE
FAILURE TO SECURE A WARRANT.  MRS. GRAFF'S PERMISSION TO THE POLICE TO
INVADE THE HOUSE, SIMULTANEOUSLY VIOLATING THE PRIVACY OF MATLOCK AND
THE MARSHALLS, PROVIDES A SORRY AND WHOLLY INADEQUATE SUBSTITUTE FOR
THE PROTECTIONS WHICH INHERE IN A JUDICIALLY GRANTED WARRANT.  IT IS
INCONCEIVABLE THAT A SEARCH CONDUCTED WITHOUT A WARRANT CAN GIVE MORE
AUTHORITY THAN A SEARCH CONDUCTED WITH A WARRANT.  SEE UNITED STATES V.
LEFKOWITZ, 285 U.S. 452, 464.  BUT HERE THE POLICE PROCURED WITHOUT A
WARRANT ALL THE AUTHORITY WHICH THEY HAD UNDER THE FEARED GENERAL
WARRANTS, HATRED OF WHICH LED TO THE PASSAGE OF THE FOURTH AMENDMENT. 
GOVERNMENT AGENTS ARE NOW FREE TO RUMMAGE ABOUT THE HOUSE,
UNCONSTRAINED BY ANYTHING EXCEPT THEIR OWN DESIRES.  /3/  EVEN AFTER
FINDING ITEMS WHICH THEY MAY HAVE EXPECTED TO FIND AND WHICH DOUBTLESS
WOULD HAVE BEEN SPECIFIED IN A VALID WARRANT, SEE COOLIDGE V. NEW
HAMPSHIRE, 403 U.S. 443, 471, THEY PROLONGED THEIR EXPLORATORY SEARCH
IN PURSUIT OF ADDITIONAL EVIDENCE.  THE JUDGMENT OF WHETHER THE
INTRUSION INTO THE MARSHALLS' AND MATLOCK'S PRIVACY WAS TO BE PERMITTED
WAS NOT MADE BY AN OBJECTIVE JUDICIAL OFFICER RESPECTFUL OF THE
EXACTING DEMANDS OF THE FOURTH AMENDMENT; NOR WERE THE POLICE LIMITED
BY THE NEED TO MAKE AN INITIAL SHOWING OF PROBABLE CAUSE TO INVADE THE
MARSHALL HOME.  SINCE THE FRAMERS OF THE AMENDMENT DID NOT ABOLISH THE
HATED GENERAL WARRANTS ONLY TO IMPOSE ANOTHER OPPRESSIVE REGIME ON THE
PEOPLE, I DISSENT. 

/1/  THE SECOND CLAUSE OF THE FOURTH AMENDMENT LAYS DOWN EXACTING
STANDARDS FOR THE ISSUANCE OF A VALID SEARCH WARRANT.  THE COURT,
HOWEVER, IN EFFECT READS THE PROVISION OF THE FIRST CLAUSE OF THE
AMENDMENT PROSCRIBING "UNREASONABLE" SEARCHES AND SEIZURES TO ALLOW IT
TO CREATE CLASSES OF JUDICIALLY SANCTIONED "REASONABLE" SEARCHES, EVEN
WHEN THEY DO NOT COMPORT WITH THE MINIMUM STANDARDS WHICH A WARRANTED
SEARCH MUST SATISFY.  BUT THE HISTORY OF THE AMENDMENT INDICATES THAT
THE FRAMERS ADDED THE FIRST CLAUSE TO GIVE ADDITIONAL PROTECTIONS TO
THE PEOPLE BEYOND THE PRESCRIPTIONS FOR A VALID WARRANT, AND NOT TO
GIVE THE JUDICIARY CARTE BLANCHE TO LATER DILUTE THE WARRANT
REQUIREMENT BY SANCTIONING CLASSES OF WARRANTLESS SEARCHES. 

THE FORM OF OPPRESSIVE SEARCH AND SEIZURE BEST KNOWN TO THE
COLONISTS WAS THE GENERAL WARRANT, OR GENERAL WRIT OF ASSISTANCE, WHICH
GAVE THE OFFICIALS OF THE CROWN LICENSE TO SEARCH ALL PLACES AND FOR
EVERYTHING IN A GIVEN PLACE, LIMITED ONLY BY THEIR OWN DISCRETION.  SEE
WARDEN V. HAYDEN, 387 U.S. 294, 313 - 317 (DOUGLAS, J., DISSENTING). 
IT WAS THIS ABUSE WHICH JAMES OTIS CONDEMNED IN BOSTON IN 1761, SEE 2
J. ADAMS, WORKS 523 - 525, AND WHICH PATRICK HENRY CONDEMNED AS
VIRGINIA DEBATED THE NEW CONSTITUTION IN 1788.  SEE 3 J. ELLIOT,
DEBATES 448.  BECAUSE THE CROWN HAD EMPLOYED THE GENERAL WARRANT,
RATHER THAN THE WARRANTLESS SEARCH, TO INVADE THE PRIVACY OF THE
COLONISTS WITHOUT PROBABLE CAUSE AND WITHOUT LIMITATION, IT IS NOT
SURPRISING THAT THE HATRED OF THE COLONISTS FOCUSED ON IT. 

BUT IN CONCENTRATING THEIR INVECTIVE ON THE GENERAL WARRANT, THE
COLONISTS AND THE FRAMERS DID NOT INTEND TO SUBJECT THEMSELVES TO
SEARCHES WITHOUT WARRANTS.  WE BEGIN WITH JAMES OTIS.  IN HIS 1761
SPEECH, OTIS NOT ONLY CONDEMNED THE GENERAL WARRANT, HE ALSO ENVISIONED
AN ACCEPTABLE ALTERNATIVE.  THIS WAS NOT THE SEARCH WITHOUT A WARRANT,
BUT RATHER SEARCHES UNDER WARRANTS CONFINED BY EXPLICIT RESTRICTIONS:
" I ADMIT THAT SPECIAL WRITS OF ASSISTANCE, TO SEARCH SPECIAL PLACES,
MAY BE GRANTED TO CERTAIN PERSONS ON OATH."  2 J. ADAMS, WORKS 524. 

IN 1778, DURING DEBATES ON THE CONSTITUTION PRIOR TO PASSAGE OF THE
BILL OF RIGHTS, VIRGINIA RECOMMENDED FOR CONGRESSIONAL CONSIDERATION A
SERIES OF AMENDMENTS TO THE CONSTITUTION, ONE OF WHICH GUARANTEED THE
SECURITY OF THE CITIZENRY AGAINST UNREASONABLE GOVERNMENT SEARCHES. 
THIS PROPOSED AMENDMENT QUITE CLEARLY PRESUPPOSED THAT AN
"UNREASONABLE" SEARCH COULD BE AVOIDED ONLY BY USE OF A WARRANT, AND
ONLY IF THAT WARRANT MET CERTAIN STANDARDS.  IT DID NOT CONCEIVE OF
WARRANTLESS SEARCHES: 

     "THAT EVERY FREEMAN HAS A RIGHT TO BE SECURE FROM ALL

  UNREASONABLE SEARCHES AND SEIZURES OF HIS PERSON, HIS PAPERS, AND

  PROPERTY; ALL WARRANTS, THEREFORE, TO SEARCH SUSPECTED PLACES, OR

  SEIZE ANY FREEMAN, HIS PAPERS, OR PROPERTY, WITHOUT INFORMATION

ON OATH (OR AFFIRMATION OF A PERSON RELIGIOUSLY SCRUPULOUS OF

  TAKING AN OATH) OF LEGAL AND SUFFICIENT CAUSE, ARE GRIEVOUS AND

  OPPRESSIVE; AND ALL GENERAL WARRANTS TO SEARCH SUSPECTED PLACES,

  OR TO APPREHEND ANY SUSPECTED PERSON, WITHOUT SPECIALLY NAMING OR

  DESCRIBING THE PLACE OR PERSON, ARE DANGEROUS, AND OUGHT NOT TO

  BE GRANTED."  3 J. ELLIOT, DEBATES 658.  ACCORDINGLY, WHEN THE

  FIRST CONGRESS CONVENED, JAMES MADISON OF VIRGINIA OFFICIALLY

  PROPOSED AMENDMENTS TO THE CONSTITUTION, INCLUDING ONE

  RESTRICTING SEARCHES AND SEIZURES.  LIKE THE ORIGINAL VIRGINIA

RECOMMENDATION, IT WAS NURTURED BY A FEAR OF THE GENERAL

WARRANTS, AND EMPHASIZED THE WARRANT REQUIREMENT: 

     "THE RIGHTS OF THE PEOPLE TO BE SECURED IN THEIR PERSONS,
THEIR

  HOUSES, THEIR PAPERS, AND THEIR OTHER PROPERTY, FROM ALL

  UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED BY

  WARRANTS ISSUED WITHOUT PROBABLE CAUSE, SUPPORTED BY OATH OR

  AFFIRMATION, OR NOT PARTICULARLY DESCRIBING THE PLACES TO BE

  SEARCHED, OR THE PERSONS OR THINGS TO BE SEIZED."  I ANNALS OF

  CONG. 434 - 435. 

AFTER BEING REFERRED TO THE COMMITTEE OF ELEVEN, THE AMENDMENT WAS
RETURNED TO THE FLOOR OF THE HOUSE, WHERE IT WAS APPROVED AFTER
AMENDMENT IN A FORM WHICH CLOSELY FOLLOWED MADISON'S ORIGINAL PROPOSAL,
AND WITH ITS THRUST STILL FOCUSING ON THE WARRANT REQUIREMENT: 

     "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES,

  PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEIZURES AND SEARCHES,

  SHALL NOT BE VIOLATED BY WARRANTS ISSUING WITHOUT PROBABLE CAUSE,

  SUPPORTED BY OATH OR AFFIRMATION, AND NOT PARTICULARLY DESCRIBING

  THE PLACE TO BE SEARCHED AND THE PERSONS OR THINGS TO BE

  SEIZED."  ID., AT 754. 

ONLY AT THIS POINT WAS THE PRESENT FORM OF THE AMENDMENT, WITH ITS
TWO DISTINCT CLAUSES, FIRST SUGGESTED.  MR. BENSON OF NEW YORK,
CHAIRMAN OF A COMMITTEE OF THREE TO ARRANGE THE AMENDMENTS, PROPOSED
THAT "BY WARRANTS ISSUING" BE CHANGED TO "AND NO WARRANT SHALL ISSUE." 
HIS PURPOSE WAS TO STRENGTHEN THE AMENDMENT, NOT TO LICENSE LATER
JUDICIAL EFFORTS TO UNDERCUT THE WARRANT REQUIREMENT:

     "MR. BENSON OBJECTED TO THE WORDS 'BY WARRANTS ISSUING.'  THIS

  DECLARATORY PROVISION WAS GOOD AS FAR AS IT WENT, BUT HE THOUGHT

  IT WAS NOT SUFFICIENT; HE THEREFORE PROPOSED TO ALTER IT SO AS TO

 READ 'AND NO WARRANT SHALL ISSUE."  IBID. 

BENSON'S AMENDMENT WAS DEFEATED AT THAT POINT, IBID., BUT WHEN THE
COMMITTEE OF THREE RETURNED THE AMENDMENT TO THE HOUSE, IT FOLLOWED THE
FORM SUGGESTED BY BENSON.  THE PROHIBITION AGAINST UNREASONABLE
SEARCHES WAS MADE EXPLICIT IN A SEPARATE CLAUSE, AND A SECOND CLAUSE
BEGAN WITH THE WORDS EARLIER PROPOSED BY BENSON.  THIS FORM WAS THEN
ACCEPTED, ID., AT 779, AND THE SENATE CONCURRED.  SENATE JOURNAL, AUG.
25, 1789.  SEE GENERALLY N. LASSON, THE HISTORY AND DEVELOPMENT OF THE
FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 97 - 103. 

THE HISTORY OF THE SEPARATE CLAUSE PROHIBITING UNREASONABLE SEARCHES
AND SEIZURES DEMONSTRATES THAT IT WAS CREATED IN AN EFFORT TO
STRENGTHEN THE PROHIBITION OF SEARCHES WITHOUT PROPER WARRANTS AND TO
BROADEN THE PROTECTIONS AGAINST UNNEEDED INVASIONS OF INDIVIDUAL
PRIVACY.  SEE ID., AT 103; WARDEN V. HAYDEN, 387 U.S. AT 317 - 318
(DOUGLAS, J., DISSENTING).  IT PERVERTS THE INTENT OF THE FRAMERS TO
READ IT AS PERMITTING THE CREATION OF JUDICIAL EXCEPTIONS TO THE
WARRANT REQUIREMENT IN ALL BUT THE MOST COMPELLING CIRCUMSTANCES.  SEE
J. LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME COURT, 42 - 44. 

/2/  BY WAY OF ILLUSTRATION, WE OBSERVED THAT:  "NO SUSPECT WAS
FLEEING OR LIKELY TO TAKE FLIGHT.  THE SEARCH WAS OF PERMANENT
PREMISES, NOT OF A MOVABLE VEHICLE.  NO EVIDENCE OR CONTRABAND WAS
THREATENED WITH REMOVAL OR DESTRUCTION, EXCEPT PERHAPS THE FUMES WHICH
WE SUPPOSE IN TIME WOULD DISAPPEAR."  333 U.S., AT 15. 

/3/  FOR AN EXAMPLE OF THE ABUSE TO WHICH A WARRANTLESS SEARCH IS
SUBJECT, SEE KREMEN V. UNITED STATES, 353 U.S. 346, WHERE THE POLICE
GUTTED A HOME DURING A WARRANTLESS SEARCH. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

I WOULD NOT LIMIT THE REMAND TO THE DETERMINATION WHETHER MRS. GRAFF
WAS IN FACE A JOINT OCCUPANT OF THE BEDROOM WITH SUFFICIENT AUTHORITY
TO CONSENT TO THE SEARCH.  IN MY VIEW THE DETERMINATION IS ALSO
REQUIRED THAT MRS. GRAFF CONSENTED KNOWING THAT SHE WAS NOT REQUIRED TO
CONSENT.  "IT WHOLLY ESCAPES ME HOW OUR CITIZENS CAN MEANINGFULLY BE
SAID TO HAVE WAIVED SOMETHING AS PRECIOUS AS A CONSTITUTIONAL GUARANTEE
WITHOUT EVER BEING AWARE OF ITS EXISTENCE."  SCHNECKLOTH V. BUSTAMONTE,
412 U.S. 218, 277 (1973) (BRENNAN, J., DISSENTING).  I WOULD HOLD THAT
AN INDIVIDUAL CANNOT EFFECTIVELY WAIVE THIS RIGHT IF HE IS TOTALLY
IGNORANT OF THE FACT THAT, IN THE ABSENCE OF HIS CONSENT, SUCH
INVASIONS OF PRIVACY WOULD BE CONSTITUTIONALLY PROHIBITED. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES.  ON THE BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY
GENERAL PETERSEN, HARRY R. SACHSE, ALLAN A. TUTTLE, AND PHILIP R.
MONAHAN. 

DONALD S. EISENBERG, BY APPOINTMENT OF THE COURT, 412 U.S. 948,
ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :








CURTIS V. LOETHER, 415 U.S. 189 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 72 - 1035.  ARGUED DECEMBER 4 - 5, 1973--DECIDED

           FEBRUARY 20, 1974; 467 F.2D 1110, AFFIRMED. 


    THE SEVENTH AMENDMENT OF THE CONSTITUTION ENTITLES EITHER PARTY

  TO DEMAND A JURY TRIAL IN AN ACTION FOR DAMAGES IN THE FEDERAL

  COURTS UNDER 812 OF THE CIVIL RIGHTS ACT OF 1968, WHICH

  AUTHORIZED PRIVATE PLAINTIFFS TO BRING CIVIL ACTIONS TO REDRESS

  VIOLATIONS OF THE ACT'S FAIR HOUSING PROVISIONS.  PP. 191 - 198. 

     MARSHALL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

3612, AUTHORIZES PRIVATE PLAINTIFFS TO BRING CIVIL ACTIONS TO REDRESS
VIOLATIONS OF TITLE VIII, THE FAIR HOUSING PROVISIONS OF THE ACT, AND
PROVIDES THAT "(THE COURT MAY GRANT AS RELIEF, AS IT DEEMS APPROPRIATE,
ANY PERMANENT OR TEMPORARY INJUNCTION, TEMPORARY RESTRAINING ORDER, OR
OTHER ORDER, AND MAY AWARD TO THE PLAINTIFF ACTUAL DAMAGES AND NOT MORE
THAN $1,000 PUNITIVE DAMAGES, TOGETHER WITH COURT COSTS AND REASONABLE
ATTORNEY FEES . . ."  THE QUESTION PRESENTED IN THIS CASE IS WHETHER
THE CIVIL RIGHTS ACT OR THE SEVENTH AMENDMENT REQUIRES A JURY TRIAL
UPON DEMAND BY ONE OF THE PARTIES IN AN ACTION FOR DAMAGES AND
INJUCNTIVE RELIEF UNDER THIS SECTION. 

PETITIONER, A NEGRO WOMAN, BROUGHT THIS ACTION UNDER 812, CLAIMING
THAT RESPONDENTS, WHO 

ARE WHITE, HAD REFUSED TO RENT AN APARTMENT TO HER BECAUSE OF HER
RACE, IN VIOLATION OF 804(A) OF THE ACT, 42 U.S.C. 3604(A).  IN HER
COMPLAINT SHE SOUGHT ONLY INJUNCTIVE RELIEF AND PUNITIVE DAMAGES; A
CLAIM FOR COMPENSATORY DAMAGES WAS LATER ADDED.  /1/  AFTER AN
EVIDENTIARY HEARING, THE DISTRICT COURT GRANTED PRELIMINARY INJUNCTIVE
RELIEF, ENJOINING THE RESPONDENTS FROM RENTING THE APARTMENT IN
QUESTION TO ANYONE ELSE PENDING THE TRIAL ON THE MERITS.  THIS
INJUNCTION WAS DISSOLVED SOME FIVE MONTHS LATER WITH THE PETITIONER'S
CONSENT, AFTER SHE HAD FINALLY OBTAINED OTHER HOUSING, AND THE CASE
WENT TO TRIAL ON THE ISSUES OF ACTUAL AND PUNITIVE DAMAGES. 

RESPONDENTS MADE A TIMELY DEMAND FOR JURY TRIAL IN THEIR ANSWER. 
THE DISTRICT COURT, HOWEVER, HELD THAT JURY TRIAL WAS NEITHER
AUTHORIZED BY TITLE VIII NOR REQUIRED BY THE SEVENTH AMENDMENT, AND
DENIED THE JURY REQUEST.  ROGERS V. LOETHER, 312 F.SUPP.  1008 (ED WIS.
1970).  AFTER TRIAL ON THE MERITS, THE DISTRICT JUDGE FOUND THAT
RESPONDENTS HAD IN FACT DISCRIMINATED AGAINST PETITIONER ON ACCOUNT OF
HER RACE.  ALTHOUGH HE FOUND NO ACTUAL DAMAGES, SEE N. 1, SUPRA, HE
AWARDED $250 IN PUNITIVE DAMAGES, DENYING PETITIONER'S REQUEST FOR
ATTORNEY'S FEES AND COURT COSTS. 

THE COURT OF APPEALS REVERSED ON THE JURY TRIAL ISSUE.  ROGERS V.
LOETHER, 467 F.2D 1110 (CA7 1972).  AFTER AN EXTENDED ANALYSIS, THE
COURT CONCLUDED ESSENTIALLY THAT THE SEVENTH AMENDMENT GAVE RESPONDENTS
THE RIGHT TO A JURY TRIAL IN THIS ACTION, AND THEREFORE INTERPRETED THE
STATUTE TO AUTHORIZE JURY TRIALS SO AS TO ELIMINATE ANY QUESTION OF ITS
CONSTITUTIONALITY.  IN VIEW OF THE IMPORTANCE OF THE JURY TRIAL ISSUE
IN THE ADMINISTRATION AND ENFORCEMENT OF TITLE VIII AND THE DIVERSITY
OF VIEWS IN THE LOWER COURTS ON THE QUESTION, /2/  WE GRANTED
CERTIORARI, 412 U.S. 937 (1973).  /3/  WE AFFIRM. 

THE LEGISLATIVE HISTORY ON THE JURY TRIAL QUESTION IS SPARSE, AND
WHAT LITTLE IS AVAILABLE IS AMBIGUOUS.  THERE SEEMS TO BE SOME
INDICATION THAT SUPPORTERS OF TITLE VIII WERE CONCERNED THAT THE
POSSIBILITY OF RACIAL PREJUDICE ON JURIES MIGHT REDUCE THE
EFFECTIVENESS OF CIVIL RIGHTS DAMAGE ACTIONS.  /4/  ON THE OTHER HAND,
ONE BIT OF TESTIMONY DURING COMMITTEE HEARINGS INDICATES AN AWARENESS
THAT JURY TRIALS WOULD HAVE TO BE AFFORDED IN DAMAGE ACTIONS UNDER
TITLE VIII.  /5/  BOTH PETITIONER AND RESPONDENTS HAVE PRESENTED
PLAUSIBLE ARGUMENTS FROM THE WORDING AND CONSTRUCTION OF PARA. 812.  WE
SEE NO POINT TO GIVING EXTENDED CONSIDERATION TO THESE ARGUMENTS,
HOWEVER, FOR WE THINK IT IS CLEAR THAT THE SEVENTH AMENDMENT ENTITLES
EITHER PARTY TO DEMAND A JURY TRIAL IN AN ACTION FOR DAMAGES IN THE
FEDERAL COURTS UNDER 812.  /6/ 

THE SEVENTH AMENDMENT PROVIDES THAT "(IN SUITS AT COMMON LAW, WHERE
THE VALUE IN CONTROVERSY SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF
TRIAL BY JURY SHALL BE PRESERVED."  ALTHOUGH THE THRUST OF THE
AMENDMENT WAS TO PRESERVE THE RIGHT TO JURY TRIAL AS IT EXISTED IN
1791, IT HAS LONG BEEN SETTLED THAT THE RIGHT EXTENDS BEYOND THE COMMON
LAW FORMS OF ACTION RECOGNIZED AT THAT TIME.  MR. JUSTICE STORY
ESTABLISHED THE BASIC PRINCIPLE IN 1830: 

"THE PHRASE 'COMMON LAW,' FOUND IN THIS CLAUSE, IS USED IN
CONTRADISTINCTION TO EQUITY, AND ADMIRALTY, AND MARITIME JURISPRUDENCE
. . . BY COMMON LAW, (THE FRAMERS OF THE AMENDMENT) MEANT . . . NOT
MERELY SUITS, WHICH THE COMMON LAW RECOGNIZED AMONG ITS OLD AND SETTLED
PROCEEDINGS, BUT SUITS IN WHICH LEGAL RIGHTS WERE TO BE ASCERTAINED AND
DETERMINED, IN CONTRADISTINCTION TO THOSE WHERE EQUITABLE RIGHTS ALONE
WERE RECOGNIZED, AND EQUITABLE REMEDIES WERE ADMINISTERED . . . IN A
JUST SENSE, THE AMENDMENT THEN MAY WELL BE CONSTRUED TO EMBRACE ALL
SUITS WHICH ARE NOT OF EQUITY AND ADMIRALTY JURISDICTION, WHATEVER
MIGHT BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL
RIGHTS."  PARSONS V. BEDFORD, 3 PET. 433, 446 - 447 (1830) (EMPHASIS IN
ORIGINAL). 

PETITIONER NEVERTHELESS ARGUES THAT THE AMENDMENT IS INAPPLICABLE TO
NEW CAUSES OF ACTION CREATED BY CONGRESSIONAL ENACTMENT.  AS THE COURT
OF APPEALS OBSERVED, HOWEVER, WE HAVE CONSIDERED THE APPLICABILITY OF
THE CONSTITUTIONAL RIGHT TO JURY TRIAL IN ACTIONS ENFORCING STATUTORY
RIGHTS "AS A MATTER TOO OBVIOUS TO BE DOUBTED."  467 F.2D AT 1114. 
ALTHOUGH THE COURT HAS APPARENTLY NEVER DISCUSSED THE ISSUE AT ANY
LENGTH, WE HAVE OFTEN FOUND THE SEVENTH AMENDMENT APPLICABLE TO CAUSES
OF ACTION BASED ON STATUTES.  SEE, E.G., DAIRY QUEEN, INC. V. WOOD, 369
U.S. 469, 477 (1962) (TRADEMARK LAWS); HEPNER V. UNITED STATES, 213
U.S. 103, 115 (1909) (IMMIGRATION LAWS); CF. FLEITMANN V. WELSBACH
STREET LIGHTING CO., 240 U.S. 27 (1916) (ANTITRUST LAWS), AND THE
DISCUSSION OF FLEITMANN IN SS V. ROSBERNHARD, 396 U.S. 531, 535 - 536
(1970).  /7/  WHATEVER DOUBT MAY HAVE EXISTED SHOULD NOW BE DISPELLED. 
THE SEVENTH AMENDMENT DOES APPLY TO ACTIONS ENFORCING STATUTORY RIGHTS,
AND REQUIRES A JURY TRIAL UPON DEMAND, IF THE STATUTE CREATES LEGAL
RIGHTS AND REMEDIES, ENFORCEABLE IN AN ACTION FOR DAMAGES IN THE
ORDINARY COURTS OF LAW. 

NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1 (1937), RELIED ON
BY PETITIONER, LENDS NO SUPPORT TO HER STATUTORY-RIGHTS ARGUMENT.  THE
COURT PRACTICE PROCEEDING, REJECTING A SEVENTH AMENDMENT CLAIM ON THE
GROUND THAT THE CASE INVOLVED A "STATUTORY PROCEEDING" AND "NOT A SUIT
AT COMMON LAW OR IN THE NATURE OF SUCH A SUIT."  ID., AT 48.  JONES &
LAUGHLIN MERELY STANDS FOR THE PROPOSITION THAT THE SEVENTH AMENDMENT
IS GENERALLY INAPPLICABLE IN ADMINISTRATIVE PROCEEDINGS WHERE JURY
TRIALS WOULD BE INCOMPATIBLE WITH THE WHOLE CONCEPT OF ADMINISTRATIVE
ADJUDICATION /8/  AND WOULD SUBSTANTIALLY INTERFERE WITH THE NLRB'S
ROLE IN THE STATUTORY SCHEME.  KATCHEN V. LANDY, 382 U.S. 323 (1966),
ALSO RELIED UPON BY PETITIONER, IS TO LIKE EFFECT.  THERE THE COURT
UPHELD, OVER A SEVENTH AMENDMENT CHALLENGE, THE BANKRUPTCY ACT'S GRANT
OF SUMMARY JURISDICTION TO THE BANKRUPTCY COURT OVER THE TRUSTEE'S
ACTION TO COMPEL A CLAIMANT TO SURRENDER A VOIDABLE PREFERENCE; THE
COURT RECOGNIZED THAT A BANKRUPTCY COURT HAS BEEN TRADITIONALLY VIEWED
AS A COURT OF EQUITY, AND THAT JURY TRIALS WOULD "DISMEMBER" THE
STATUTORY SCHEME OF THE BANKRUPTCY ACT.  ID., AT 339.  SEE ALSO GUTHRIE
NATIONAL BANK V. GUTHRIE, 173 U.S. 528 (1899).  THESE CASES UPHOLD
CONGRESSIONAL POWER TO ENTRUST ENFORCEMENT OF STATUTORY RIGHTS TO AN
ADMINISTRATIVE PROCESS OR SPECIALIZED COURT OF EQUITY FREE FROM THE
STRICTURES OF THE SEVENTH AMENDMENT.  BUT WHEN CONGRESS PROVIDES FOR
ENFORCEMENT OF STATUTORY RIGHTS IN AN ORDINARY CIVIL ACTION IN THE
DISTRICT COURTS WHERE THERE IS OBVIOUSLY NO FUNCTIONAL JUSTIFICATION
FOR DENYING THE JURY TRIAL RIGHT, A JURY TRIAL MUST BE AVAILABLE IF THE
ACTION INVOLVES RIGHTS AND REMEDIES OF THE SORT TYPICALLY ENFORCED IN
AN ACTION AT LAW.  /9/ 

WE THINK IT IS CLEAR THAT A DAMAGE ACTION UNDER 812 IS AN ACTION TO
ENFORCE "LEGAL RIGHTS" WITHIN THE MEANING OF OUR SEVENTH AMENDMENT
DECISIONS.  SEE, E.G., ROSS V. BERNHARD, SUPRA, AT 533, 542; DAIRY
QUEEN, INC. V. WOOD, SUPRA, AT 476 - 477.  A DAMAGE ACTION UNDER THE
STATUTE SOUNDS BASICALLY IN TORT--THE STATUTE MERELY DEFINES A NEW
LEGAL DUTY, AND AUTHORIZES THE COURTS TO COMPENSATE A PLAINTIFF FOR THE
INJURY CAUSED BY THE DEFENDANT'S WRONGFUL BREACH.  AS THE COURT OF
APPEALS NOTED, THIS CAUSE OF ACTION IS ANALOGOUS TO A NUMBER OF TORT
ACTIONS RECOGNIZED AT COMMON LAW.  /10/  MORE IMPORTANT, THE RELIEF
SOUGHT HERE--ACTUAL AND PUNITIVE DAMAGES--IS THE TRADITIONAL FORM OF
RELIEF OFFERED IN THE COURTS OF LAW.  /11/ 

WE NEED NOT, AND DO NOT, GO SO FAR AS TO SAY THAT ANY AWARD OF
MONETARY RELIEF MUST NECESSARILY BE "LEGAL" RELIEF.  SEE, E.G.,
MITCHELL V. DE MARIO JEWELRY, INC., 361 U.S. 288 (1960); PROTER V.
WARNER HOLDING CO., 328 U.S. 395 (1946).  /12/  A COMPARISON OF TITLE
VIII WITH TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, WHERE THE COURTS
OF APPEALS HAVE HELD THAT JURY TRIAL IS NOT REQUIRED IN AN ACTION FOR
REINSTATEMENT AND BACKPAY, /13/  IS INSTRUCTIVE, ALTHOUGH WE OF COURSE
EXPRESS NO VIEW ON THE JURY TRIAL ISSUE IN THAT CONTEXT.  IN TITLE VII
CASES THE COURTS OF APPEALS HAVE CHARACTERIZED BACKPAY AS AN INTEGRAL
PART OF AN EQUITABLE REMEDY, A FORM OF RESTITUTION.  BUT THE STATUTORY
LANGUAGE ON WHICH THIS CHARACTERIZATION IS BASED-- 

"(THE COURT MAY ENJOIN THE RESPONDENT FROM ENGAGING IN SUCH UNLAWFUL
EMPLOYMENT PRACTICE, AND ORDER SUCH AFFIRMATIVE ACTION AS MAY BE
APPROPRIATE, WHICH MAY INCLUDE, BUT IS NOT LIMITED TO, REINSTATEMENT OR
HIRING OF EMPLOYEES, WITH OR WITHOUT BACK PAY . . . , OR ANY OTHER
EQUITABLE RELIEF AS THE COURT DEEMS APPROPRIATE," 42 U.S.C. 2000E-5(G)
(1970 ED., SUPP. II)-- CONTRASTS SHARPLY WITH 812'S SIMPLE
AUTHORIZATION OF AN ACTION FOR ACTUAL AND PUNITIVE DAMAGES.  IN TITLE
VII CASES, ALSO, THE COURTS HAVE RELIED ON THE FACT THAT THE DECISION
WHETHER TO AWARD BACKPAY IS COMMITTED TO THE DISCRETION OF THE TRIAL
JUDGE.  THERE IS NO COMPARABLE DISCRETION HERE; IF A PLAINTIFF PROVES
UNLAWFUL DISCRIMINATION AND ACTUAL DAMAGES, HE IS ENTITLED TO JUDGMENT
FOR THAT AMOUNT.  NOR IS THERE ANY SENSE IN WHICH THE AWARD HERE CAN BE
VIEWED AS REQUIRING THE DEFENDANT TO DISGORGE FUNDS WRONGFULLY WITHHELD
FROM THE PLAINTIFF.  WHATEVER MAY BE THE MERIT OF THE "EQUITABLE"
CHARACTERIZATION IN TITLE VII CASES, THERE IS SURELY NO BASIS FOR
CHARACTERIZING THE AWARD OF COMPENSATORY AND PUNITIVE DAMAGES HERE AS
EQUITABLE RELIEF.  /14/ 

WE ARE NOT OBLIVIOUS TO THE FORCE OF PETITIONER'S POLICY ARGUMENTS. 
JURY TRIALS MAY DELAY TO SOME EXTENT THE DISPOSITION OF TITLE VIII
DAMAGE ACTIONS.  BUT TITLE VIII ACTIONS SEEKING ONLY EQUITABLE RELIEF
WILL BE UNAFFECTED, AND PRELIMINARY INJUNCTIVE RELIEF REMAINS AVAILABLE
WITHOUT A JURY TRIAL EVEN IN DAMAGE ACTIONS.  DIARY QUEEN, INC. V.
WOOD, 269 U.S. AT 479 N. 20.  MOREOVER, THE STATUTORY REQUIREMENT OF
EXPEDITION OF 812 ACTIONS, 42 U.S.C. 3614, APPLIES EQUALLY TO JURY AND
NON-JURY TRIALS.  WE RECOGNIZE, TOO, THE POSSIBILITY THAT JURY
PREJUDICE MAY DEPRIVE A VICTIM OF DISCRIMINATION OF THE VERDICT TO
WHICH HE OR SHE IS ENTITLED.  OF COURSE, THE TRIAL JUDGE'S POWER TO
DIRECT A VERDICT, TO GRANT JUDGMENT NOTWITHSTANDING THE VERDICT, OR TO
GRANT A NEW TRIAL PROVIDES SUBSTANTIAL PROTECTION AGAINST THIS RISK,
AND RESPONDENTS' SUGGESTION THAT JURY TRIALS WILL EXPOSE A BROADER
SEGMENT OF THE POPULACE TO THE EXAMPLE OF THE FEDERAL CIVIL RIGHTS LAWS
IN OPERATION HAS SOME FORCE.  MORE FUNDAMENTALLY, HOWEVER, THESE
CONSIDERATIONS ARE INSUFFICIENT TO OVERCOME THE CLEAR COMMAND OF THE
SEVENTH AMENDMENT.  /15/  THE DECISION OF THE COURT OF APPEALS MUST BE

           AFFIRNED. 

/1/  ALTHOUGH THE LOWER COURTS TREATED THE ACTION AS ONE FOR
COMPENSATORY AND PUNITIVE DAMAGES, PETITIONER HAS EMPHASIZED IN THIS
COURT THAT HER COMPLAINT SOUGHT ONLY PUNITIVE DAMAGES.  IT IS APPARENT,
HOWEVER, THAT PETITIONER LATER SOUGHT TO RECOVER ACTUAL DAMAGES AS
WELL.  THE DISTRICT COURT'S PRETRIAL ORDER INDICATES THE JUDGE'S
UNDERSTANDING, FOLLOWING A PRETRIAL CONFERENCE WITH COUNSEL, THAT THE
QUESTION OF ACTUAL DAMAGES WOULD BE ONE OF THE ISSUES TO BE TRIED. 
APP. 18A.  PETITIONER IN FACT ATTEMPTED TO PROVE ACTUAL DAMAGES, APP.
45A, BUT HER TESTIMONY WAS EXCLUDED FOR FAILURE TO COMPLY WITH A
PRETRIAL DISCOVERY ORDER.  THE DISTRICT JUDGE LATER DISMISSED THE CLAIM
OF ACTUAL DAMAGES FOR FAILURE OF PROOF.  IN THESE CIRCUMSTANCES, IT IS
IRRELEVANT THAT THE PLEADINGS WERE NEVER FORMALLY AMENDED.  FED. FULES
CIV. PROC. 15(B), 16. 

/2/ THE SEVENTH CIRCUIT HERE WAS THE FIRST COURT OF APPEALS TO
CONSIDER THE ISSUE, BUT THE REPORTED DECISIONS OF THE DISTRICT COURTS
ARE EVENLY DIVIDED ON THE QUESTION.  IN ADDITION TO THE DISTRICT COURT
IN THIS CASE, THE COURT IN CAULEY V. SMITH, 347 F.SUPP.  114 (ED VA.
1972), HELD THAT JURY TRIAL WAS NOT REQUIRED IN AN ACTION UNDER 812. 
KASTNER V. BRACKETT, 326 F.SUPP.  1151 (NEV. 1971), AND KELLY V.
ARMBRUST, 351 F.SUPP.  869 (N.D. 1972), HELD THAT JURY TRIAL WAS
REQUIRED. 

/3/  PETITIONER MARRIED WHILE THE CASE WAS PENDING BEFORE THE COURT,
AND HER MOTION TO CHANGE THE CAPTION OF THE CASE ACCORDINGLY WAS
GRANTED.  414 U.S. 1140 (1974). 

/4/  SEE, E.G., HEARINGS ON MISCELLANEOUS PROPOSALS REGARDING CIVIL
RIGHTS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 89TH CONG., 2D SESS., SER.  16, P. 1183 (1966).     /5/  SEE
HEARINGS ON S. 3296 BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF
THE SENATE COMMITTEE ON THE JUDICIARY, 89TH CONG., 2D SESS., PT. 2, P.
1178 (1966). 

/6/  WE RECOGNIZE, OF COURSE, THE "CARDINAL PRINCIPLE THAT THIS
COURT WILL FIRST ASCERTAIN WHETHER A CONSTRUCTION OF THE STATUTE IS
FAIRLY POSSIBLE BY WHICH THE (CONSTITUTIONAL) QUESTION MAY BE
AVOIDED."  UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363, 369
(1971), AND CASES THERE CITED.  IN THIS CASE, HOWEVER, THE NECESSITY
FOR JURY TRIAL IS SO CLEARLY SETTLED BY OUR PRIOR SEVENTH AMENDMENT
DECISIONS THAT IT WOULD BE FUTILE TO SPEND TIME ON THE STATUTORY ISSUE,
PARTICULARLY SINCE OUR RESULT IS NOT TO INVALIDATE THE CIVIL RIGHTS ACT
BUT ONLY TO DIRECT THAT A CERTAIN FORM OF PROCEDURE BE EMPLOYED IN
FEDERAL COURT ACTION UNDER 812. 

MOREOVER, THE SEVENTH AMENDMENT ISSUE IN THIS CASE IS IN A VERY REAL
SENSE THE NARROWER GROUND OF DECISION.  SECTION 812(A) EXPRESSLY
AUTHORIZES ACTIONS TO BE BROUGHT "IN APPROPRIATE STATE OR LOCAL COURTS
OF GENERAL JURISDICTION,"  AS WELL AS IN THE FEDERAL COURTS.  THE COURT
HAS NOT HELD THAT THE RIGHT TO JURY TRIAL IN CIVIL CASES IS AN ELEMENT
OF DUE PROCESS APPLICABLE TO STATE COURTS THROUGH THE FOURTEENTH
AMENDMENT.  SINCE WE REST OUR DECISION ON SEVENTH AMENDMENT RATHER THAN
STATUTORY GROUNDS, WE EXPRESS NO VIEW AS TO WHETHER JURY TRIALS MUST BE
AFFORDED IN 812 ACTIONS IN THE STATE COURTS. 

/7/  SEE ALSO PORTER V. WARNER HOLDING CO., 328 U.S. 395, 401-402
(1946) (EMERGENCY PRICE CONTROL ACT); TEXAS & PACIFIC R. CO. V. RIGSBY,
241 U.S. 33 (1916) (SAFETY APPLIANCE ACT).  THE COURTS OF APPEALS HAVE
SIMILARLY REJECTED THE NOTION THAT THE SEVENTH AMENDMENT HAS NO
APPLICATION TO CAUSES OF ACTION CREATED BY STATUTE.  SEE, E.G.,
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS V. BRASWELL, 388 F.2D 193,
197 (CA5), CERT. DENIED, 391 U.S. 935 (1968); SIMMONS V. AVISCO, LOCAL
713, TEXTILE WORKERS, 350 F.2D 1012, 1018 (CA4 1965); ARNSTEIN V.
PORTER, 154 F.2D 464, 468 (CA2 1946), AS WELL AS THE DECISION OF THE
SEVENTH CIRCUIT IN THIS CASE, 467 F.2D, AT 1113 - 1116.  SEE GENERALLY
DEVELOPMENTS IN THE LAW--EMPLOYMENT DISCRIMINATION AND TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, 84 HARV. L. REV. 1109.  1266 (1971). 

/8/  "(THE CONCEPT OF EXPERTISE ON WHICH THE ADMINISTRATIVE AGENCY
RESTS IS NOT CONSISTENT WITH THE USE BY IT OF A JURY AS FACT FINDER." 
L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 90 (1965). 

/9/  SEE ROGERS V. LOETHER, 467 F.2D 1110, 1115 - 1116 (CA7 1972);
DEVELOPMENTS IN THE LAW, SUPRA, N. 7, AT 1267 - 1268. 

/10/  FOR EXAMPLE, THE COURT OF APPEALS RECOGNIZED THAT TITLE VIII
COULD BE VIEWED AS AN EXTENSION OF THE COMMON-LAW DUTY OF INNKEEPERS
NOT TO REFUSE TEMPORARY LODGING TO A TRAVELER WITHOUT JUSTIFICATION, A
DUTY ENFORCEABLE IN A DAMAGE ACTION TRIABLE TO A JURY, TO THOSE WHO
RENT APARTMENTS ON A LONG-TERM BASIS.  SEE 467 F.2D, AT 1117.  AN
ACTION TO REDRESS RACIAL DISCRIMINATION MAY ALSO BE LIKENED TO AN
ACTION FOR DEFAMATION OR INTENTIONAL INFLICTION OF MENTAL DISTRESS. 
INDEED, THE CONTOURS OF THE LATTER TORT ARE STILL DEVELOPING, AND IT
HAS BEEN SUGGESTED THAT "UNDER THE LOGIC OF THE COMMON LAW DEVELOPMENT
OF A LAW OF INSULT AND INDIGNITY, RACIAL DISCRIMINATION MIGHT BE
TREATED AS A DIGNITARY TORT."  C. GREGORY & H. KALVEN, CASES AND
MATERIALS ON TORTS 961 (2D ED., 1969). 

/11/  THE PROCEDURAL HISTORY OF THIS CASE GENERATED SOME QUESTION IN
THE COURTS BELOW AS TO WHETHER THE ACTION SHOULD BE VIEWED AS ONE FOR
DAMAGES AND INJUNCTIVE RELIEF, OR AS ONE FOR DAMAGES ALONE, FOR
PURPOSES OF ANALYZING THE JURY TRIAL WAS PROPERLY TESTED BY THE RELIEF
SOUGHT IN THE COMPLAINT AND NOT BY THE CLAIMS REMAINING AT THE TIME OF
TRIAL.  467 F.2D, AT 1118 - 1119.  WE NEED EXPRESS NO VIEW ON THIS
QUESTION.  IF THE ACTION IS PROPERLY VIEWED AS ONE FOR DAMAGES ONLY,
OUR CONCLUSION THAT THIS IS A LEGAL CLAIM OBVIOUSLY REQUIRES A JURY
TRIAL ON DEMAND.  AND IF THIS LEGAL CLAIM IS JOINED WITH AN EQUITABLE
CLAIM, THE RIGHT TO JURY TRIAL ON THE LEGAL CLAIM, INCLUDING ALL ISSUES
COMMON TO BOTH CLAIMS, REMAINS INTACT.  THE RIGHT CANNOT BE ABRIDGED BY
CHARACTERIZING THE LEGAL CLAIM AS "INCIDENTAL" TO THE EQUITABLE RELIEF
SOUGHT.  BEACON THEATRES, INC. V. WESTOVER, 359 U.S. 500 (1959); DAIRY
QUEEN, INC. V. WOOD, 369 U.S. 469, 470 - 473 (1962). 

/12/  SEE ALSO SWOFFORD V. B&W, INC., 336 F.2D 406, 414 (CA5 1964). 

/13/  JOHNSON V. GEORGIA HIGHWAY EXPRESS, INC., 417 F.2D 1122, 1125
(CA5 1969); ROBINSON V. LORILLARD CORP., 444 F.2D 791, 802 (CA4), CERT.
DISMISSED UNDER RULE 60, 404 U.S. 1006 (1971); CF. MC FERREN V. COUNTY
BOARD OF EDUCATION, 455 F.2D 199, 202 - 204 (CA6 1972); HARKLESS V.
SWEENY INDEPENDENT SCHOOL DISTRICT, 427 F.2D 319, 324 (CA5 1970), CERT.
DENIED, 400 U.S. 991 (1971); SMITH V. HAMPTON TRAINING SCHOOL, 360 F.2D
577, 581 N. 8 (CA4 1966) (EN BANC); SEE GENERALLY DEVELOPMENTS IN THE
LAW, SUPRA, N. 7, AT 1265 - 1266. 

/14/  SEE COMMENT, THE SEVENTH AMENDMENT AND CIVIL RIGHTS STATUTES:
HISTORY ADRIFT IN A MAELSTROM, 68 NW. U.L. REV. 503, 524 - 527 (1973). 

/15/  ALTHOUGH PETITIONER HAS EMPHASIZED THAT THE POLICIES
UNDERLYING THE FAIR HOUSING ACT ARE DERIVED FROM THE THIRTEENTH AND
FOURTEENTH AMENDMENTS, SHE EXPRESSLY "DOES NOT MAINTAIN THAT THESE
CONSTITUTIONAL CONSIDERATIONS COULD PREVENT A JURY TRIAL IF A JURY WERE
OTHERWISE REQUIRED BY THE SEVENTH AMENDMENT."  BRIEF FOR PETITIONER 7. 
MOREOVER, ALTHOUGH THE LEGISLATIVE HISTORY OF TITLE VIII WITH RESPECT
TO JURY TRIALS IS AMBIGOUS, THERE IS SURELY NO INDICATION THAT CONGRESS
INTENDED TO OVERRIDE THE REQUIREMENTS OF THE SEVENTH AMENDMENT IF IT
MANDATES THAT JURY TRIALS BE PROVIDED IN 812 DAMAGE ACTIONS.  WE
THEREFORE HAVE NO OCCASION TO CONSIDER IN THIS CASE ANY QUESTION OF THE
SCOPE OF CONGRESSIONAL POWER TO ENFORCE 2 OF THE THIRTEENTH AMENDMENT
OR 5 OF THE FOURTEENTH AME DMENT. 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE MICHAEL DAVIDSON, SYLVIA DREW, ERIC SCHNAPPER, PATRICIA D.
MC MAHON, SEYMOUR PIKOFSKY, AND CHARLES L. BLACK, JR. 

ROBERT D. SCOTT ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS EDWARD A. DUDEK. 
..END :










MORTON V. RUIZ, 415 U.S. 199 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 72 - 1052.  ARGUED NOVEMBER 5 - 6, 1973--DECIDED

           FEBRUARY 20, 1974; 462 F.2D 818, AFFIRMED AND REMANDED. 


    RESPONDENT RUIZ AND HIS WIFE, PAPAGO INDIANS, LEFT THEIR

  RESERVATION IN ARIZONA IN 1940 TO LIVE IN AN INDIAN COMMUNITY A

  FEW MILES AWAY AND RUIZ FOUND EMPLOYMENT AT A NEARBY MINE. 

  DURING A PROLONGED STRIKE, RUIZ APPLIED FOR BUT WAS DENIED

  GENERAL ASSISTANCE BENEFITS UNDER THE SNYDER ACT BY THE BUREAU OF

  INDIAN AFFAIRS (BIA) BECAUSE OF A PROVISION IN THE BIA MANUAL

  LIMITING ELIGIBILITY TO INDIANS LIVING "ON RESERVATIONS"  (AND IN

  JURISDICTIONS UNDER THE BIA IN ALASKA AND OKLAHOMA).  AFTER

  UNSUCCESSFUL ADMINISTRATIVE APPEALS, RESPONDENTS INSTITUTED THIS

PURPORTED CLASS ACTION, CLAIMING, INTER ALIA, ENTITLEMENT TO SUCH

  GENERAL ASSISTANCE AS A MATTER OF STATUTORY INTERPRETATION.  THE

  DISTRICT COURT'S SUMMARY JUDGMENT FOR PETITIONER WAS REVERSED BY

  THE COURT OF APPEALS ON THE GROUND THAT THE MANUAL'S RESIDENCY

  LIMITATION WAS INCONSISTENT WITH THE BROAD LANGUAGE OF THE SNYDER

  ACT, THAT CONGRESS INTENDED GENERAL ASSISTANCE BENEFITS TO BE

  AVAILABLE TO ALL INDIANS, INCLUDING THOSE IN RESPONDENTS'

  POSITION, AND THAT CONGRESS' SUBSEQUENT ACTIONS IN APPROPRIATING

FUNDS FOR THE BIA GENERAL ASSISTANCE PROGRAM DID NOT SERVE TO

  RATIFY THE IMPOSED LIMITATION.  HELD: 

     1.  CONGRESS DID NOT INTEND TO EXCLUDE FROM THE BIA GENERAL

  ASSISTANCE PROGRAM THESE RESPONDENTS AND THEIR CLASS, WHO ARE

FULL-BLOODED, UNASSIMILATED INDIANS LIVING IN AN INDIAN COMMUNITY

  NEAR THEIR NATIVE RESERVATION, AND WHO MAINTAIN CLOSE ECONOMIC

  AND SOCIAL TIES WITH THAT RESERVATION.  PP. 212 - 230. 

     (A) THE LEGISLATIVE HISTORY OF THE SUBCOMMITTEE HEARINGS

  REGARDING APPROPRIATIONS UNDER THE SNYDER ACT SHOWING THAT THE

  BIA'S USUAL PRACTICE HAS BEEN TO REPRESENT TO CONGRESS THAT "ON

  OR NEAR" RESERVATIONS IS THE EQUIVALENT OF "ON" FOR PURPOSES OF

  WELFARE SERVICE ELIGIBILITY, AND THAT SUCCESSIVE BUDGET REQUESTS

  WERE FOR INDIANS LIVING "ON OR NEAR"  AND NOT JUST FOR THOSE

  LIVING DIRECTLY "ON," CLEARLY SHOWS THAT CONGRESS WAS LED TO

BELIEVE THAT THE PROGRAMS WERE BEING MADE AVAILABLE TO THOSE

  NONASSIMILATED INDIANS LIVING NEAR THE RESERVATION AS WELL AS TO

  THOSE LIVING "ON," AND A FAIR READING OF SUCH HISTORY CAN LEAD

  ONLY TO THE CONCLUSION THAT INDIANS SITUATED NEAR THE

  RESERVATION, SUCH AS RESPONDENTS, WERE COVERED BY THE

  AUTHORIZATION.  PP. 213 - 229. 

     (B) THE FACT THAT CONGRESS MADE APPROPRIATIONS DURING THE TIME

  THE "ON RESERVATIONS" LIMITATION APPEARED IN THE BIA MANUAL DOES

  NOT MEAN THAT CONGRESS IMPLICITLY RATIFIED THE BIA POLICY, WHERE

  SUCH LIMITATION HAD NOT BEEN PUBLISHED IN THE FEDERAL REGISTER OR

  IN THE CODE OF FEDERAL REGULATIONS, AND THERE IS NOTHING IN THE

  LEGISLATIVE HISTORY TO SHOW THAT THE LIMITATION WAS BROUGHT TO

  THE APPROPRIATION SUBCOMMITTEES' ATTENTION, LET ALONE TO THE

  ENTIRE CONGRESS.  BUT, EVEN ASSUMING THAT CONGRESS KNEW OF THE

  LIMITATION WHEN MAKING APPROPRIATIONS, THERE IS NO REASON TO

ASSUME THAT IT DID NOT EQUATE THE "ON RESERVATIONS" LANGUAGE WITH

  THE "ON OR NEAR"  CATEGORY THAT CONTINUOUSLY WAS DESCIRBED AS THE

  SERVICE AREA.  P. 230. 

     2.  ASSUMING, ARGUENDO, THAT THE SECRETARY RATIONALLY COULD

  LIMIT THE "ON OR NEAR" APPROPRIATION TO INCLUDE ONLY INDIANS WHO

  LIVED DIRECTLY "ON"  THE RESERVATION (PLUS THOSE IN ALASKA AND

  OKLAHOMA), THIS HAS NOT BEEN VALIDLY ACCOMPLISHED.  PP. 230 -

  238. 

     (A) BY NOT PUBLISHING ITS GENERAL ASSISTANCE ELIGIBILITY

  REQUIREMENT IN THE FEDERAL REGISTER OR IN THE CODE OF FEDERAL

  REGULATIONS, THE BIA HAS FAILED TO COMPLY WITH THE REQUIREMENTS

  OF THE ADMINISTRATIVE PROCEDURE ACT (APA) AS TO PUBLICATION OF

  SUBSTANTIVE POLICIES.  THE SECRETARY'S CONSCIOUS CHOICE NOT TO

TREAT THIS EXTREMELY SIGNIFICANT REQUIREMENT AS A

  LEGISLATIVE-TYPE RULE, RENDERS IT INEFFECTIVE SO FAR AS

  EXTINGUISHING THE RIGHTS OF THOSE OTHERWISE WITHIN THE CLASS OF

 BENEFICIARIES CONTEMPLATED BY CONGRESS.  PP. 232 - 236. 

     (B) MOREOVER, THE BIA HAS FAILED TO COMPLY WITH ITS OWN

  INTERNAL PROCEDURES, SINCE THE "ON RESERVATIONS" LIMITATION IS

  CLEARLY AN IMPORTANT SUBSTANTIVE POLICY WITHIN THE CLASS OF

  DIRECTIVES--THOSE THAT INFORM THE PUBLIC OF PRIVILEGES AND

  BENEFITS AVAILABLE" AND OF "ELIGIBILITY REQUIREMENTS"--THAT THE

  BIA MANUAL DECLARES ARE AMONG THOSE TO BE PUBLISHED.  P. 235. 

     (C) EVEN ASSUMING THE LACK OF BINDING EFFECT OF THE BIA
POLICY,

  IT IS TOO LATE TO ARGUE THAT THE WORDS "ON RESERVATIONS" IN THE

  BIA MANUAL MEAN SOMETHING DIFFERENT FROM "ON OR NEAR" AND

  THEREFORE ARE ENTITLED TO DEFERENCE AS AN ADMINISTRATIVE

  INTERPRETATION WHEN, IN FACT, THE TWO HAVE BEEN CONTINUOUSLY

EQUATED BY THE BIA TO CONGRESS.  PP. 236 - 237. 

     BLACKMUN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A NARROW BUT IMPORTANT ISSUE IN THE
ADMINISTRATION OF THE FEDERAL GENERAL ASSISTANCE PROGRAM FOR NEEDY
INDIANS:

  ARE GENERAL ASSISTANCE BENEFITS AVAILABLE ONLY TO THOSE INDIANS
LIVING ON RESERVATIONS IN THE

  UNITED STATES (OR IN AREAS REGULATED BY THE BUREAU OF INDIAN
AFFAIRS IN ALASKA AND OKLAHOMA),

  AND ARE THEY THUS UNAVAILABLE TO INDIANS (OUTSIDE ALASKA AND
OKLAHOMA) LIVING OFF, ALTHOUGH

NEAR, A RESERVATION? 

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
ANSWERED THIS QUESTION FAVORABLY TO PETITIONER, THE SECRETARY OF THE
INTERIOR, WHEN, WITHOUT OPINION AND ON CROSS-MOTIONS FOR SUMMARY
JUDGMENT, IT DISMISSED THE RESPONDENTS' COMPLAINT.  THE COURT OF
APPEALS, ONE JUDGE DISSENTING, REVERSED.  462 F.2D 818 (CA9 1972).  WE
GRANTED CERTIORARI BECAUSE OF THE SIGNIFICANCE OF THE ISSUE AND BECAUSE
OF THE VIGOROUS ASSERTION THAT THE JUDGMENT OF THE COURT OF APPEALS WAS
INCONSISTENT WITH LONG-ESTABLISHED POLICY OF THE SECRETARY AND OF THE
BUREAU.  411 U.S. 947 (1973). 

        I 

THE PERTINENT FACTS ARE AGREED UPON, ALTHOUGH, AS TO SOME, THE
PETITIONER SECRETARY DENIES KNOWLEDGE BUT DOES NOT DISPUTE THEM.  APP.
45 - 48.  THE RESPONDENTS, RAMON RUIZ AND HIS WIFE, ANITA, ARE PAPAGO
INDIANS AND UNITED STATES CITIZENS.  IN 1940 THEY LEFT THE PAPAGO
RESERVATION IN ARIZONA /1/  TO SEEK EMPLOYMENT 15 MILES AWAY AT THE
PHELPS-DODGE COPPER MINES AT AJO.  MR. RUIZ FOUND WORK THERE, AND THEY
SETTLED IN A COMMUNITY AT AJO CALLED THE "INDIAN VILLAGE" AND POPULATED
ALMOST ENTIRELY BY PAPAGOS.  /2/  PRACTICALLY ALL THE LAND AND MOST OF
THE HOMES IN THE VILLAGE ARE OWNED OR RENTED BY PHELPS-DODGE.  THE
RUIZES HAVE LIVED IN AJO CONTINUOUSLY SINCE 1940 AND HAVE BEEN IN THEIR
PRESENT RESIDENCE SINCE 1947.  A MINOR DAUGHTER LIVES WITH THEM.  THEY
SPEAK AND UNDERSTAND THE PAPAGO LANGUAGE BUT ONLY LIMITED ENGLISH. 
APART FROM MR. RUIZ' EMPLOYMENT WITH PHELPS-DODGE, THEY HAVE NOT BEEN
ASSIMILATED INTO THE DOMINANT CULTURE, AND THEY APPEAR TO HAVE
MAINTAINED A CLOSE TIE WITH THE NEARBY RESERVATION.  /3/ 

IN JULY 1967, 27 YEARS AFTER THE RUIZES MOVED TO AJO, THE MINE WHERE
HE WORKED WAS SHUT DOWN BY A STRIKE.  IT REMAINED CLOSED UNTIL THE
FOLLOWING MARCH.  WHILE THE STRIKE WAS IN PROGRESS, MR. RUIZ' SOLE
INCOME WAS $15 PER WEEK STRIKER'S BENEFIT PAID BY THE UNION.  /4/  HE
SOUGHT WELFARE ASSISTANCE FROM THE STATE OF ARIZONA BUT THIS WAS DENIED
BECAUSE OF THE STATE'S APPARENT POLICY THAT STRIKING WORKERS ARE NOT
ELIGIBLE FOR GENERAL ASSISTANCE OR EMERGENCY RELIEF.  /5/ 

ON DECEMBER 11, 1967, MR. RUIZ APPLIED FOR GENERAL ASSISTANCE
BENEFITS FROM THE BUREAU OF INDIAN AFFAIRS (BIA).  HE WAS IMMEDIATELY
NOTIFIED BY LETTER THAT HE WAS INELIGIBLE FOR GENERAL ASSISTANCE
BECAUSE OF THE PROVISION (IN EFFECT SINCE 1952) IN 66 INDIAN AFFAIRS
MANUAL 3.1.4 (1965) THAT ELIGIBILITY IS LIMITED TO INDIANS LIVING "ON
RESERVATIONS" AND IN JURISDICTIONS UNDER THE BIA IN ALASKA AND
OKLAHOMA.  /6/  AN APPEAL TO THE SUPERINTENDENT OF THE PAPAGO INDIAN
AGENCY WAS UNSUCCESSFUL.  A FURTHER APPEAL TO THE PHOENIX AREA DIRECTOR
OF THE BIA LED TO A HEARING, BUT THIS, TOO, PROVED UNSUCCESSFUL.  THE
SOLE GROUND FOR THE DENIAL OF GENERAL ASSISTANCE BENEFITS WAS THAT THE
RUIZES RESIDED OUTSIDE THE BOUNDARIES OF THE PAPAGO RESERVATION. 

THE RESPONDENTS THEN INSTITUTED THE PRESENT PURPORTED CLASS ACTION
AGAINST THE SECRETARY, CLAIMING, AS A MATTER OF STATUTORY
INTERPRETATION, ENTITLEMENT TO THE GENERAL ASSISTANCE FOR WHICH THEY
HAD APPLIED, AND ALSO CHALLENGING THE ELIGIBILITY PROVISION AS A
VIOLATION OF FIFTH AMENDMENT DUE PROCESS AND OF THE PRIVILEGES AND
IMMUNITIES CLAUSE OF ART. IV, 2, OF THE CONSTITUTION. 

THE COURT OF APPEALS' REVERSAL OF THE DISTRICT COURT'S SUMMARY
JUDGMENT FOR THE SECRETARY WAS ON THE GROUND THAT THE MANUAL'S
RESIDENCY LIMITATION WAS INCONSISTENT WITH THE BROAD LANGUAGE OF THE
SNYDER ACT, 25 U.S.C. 13, "THAT CONGRESS INTENDED GENERAL ASSISTANCE
BENEFITS TO BE AVAILABLE TO ALL INDIANS, INCLUDING THOSE IN THE
POSITION" OF THE RUIZES, 462 F.2D, AT 821, AND THAT SUBSEQUENT ACTIONS
OF CONGRESS IN APPROPRIATING FUNDS FOR THE BIA GENERAL ASSISTANCE
PROGRAM DID NOT SERVE TO RATIFY THE IMPOSED LIMITATION.  THE DISSENT
TOOK THE POSITION THAT THE SECRETARY'S POLICY WAS WITHIN THE BROAD
DISCRETIONARY AUTHORITY DELEGATED TO THE SECRETARY BY CONGRESS WITH
RESPECT TO THE ALLOCATION OF LIMITED FUNDS. 

        II 

THE SNYDER ACT, /7/  42 STAT. 208, 25 U.S.C. 13, APPROVED NOVEMBER
2, 1921, PROVIDES THE UNDERLYING CONGRESSIONAL AUTHORITY FOR MOST BIA
ACTIVITIES INCLUDING, IN PARTICULAR AND IMPORTANTLY, THE GENERAL
ASSISTANCE PROGRAM.  PRIOR TO THE ACT, THERE WAS NO SUCH GENERAL
AUTHORIZATION.  AS A RESULT, APPROPRIATION REQUESTS MADE BY THE HOUSE
COMMITTEE ON INDIAN AFFAIRS WERE FREQUENTLY STRICKEN ON THE HOUSE FLOOR
BY POINT-OF-ORDER OBJECTIONS.  SEE H.R. REP. NO. 275, 67TH CONG., 1ST
SESS. (1921); S. REP. NO. 294, 67TH CONG., 1ST SESS. (1921); 61 CONG.
REC. 4659 - 4672 (1921).  THE SNYDER ACT WAS DESIGNED TO REMEDY THIS
SITUATION.  IT IS COMPREHENSIVELY WORDED FOR THE APPARENT PURPSOE OF
AVOIDING THESE POINT-OF-ORDER MOTIONS TO STRIKE.  SINCE THE PASSAGE OF
THE ACT, THE BIA HAS PRESENTED ITS BUDGET REQUESTS WITHOUT FURTHER
INTERRUPTION OF THAT KIND AND CONGRESS HAS ENACTED APPROPRIATION BILLS
ANNUALLY IN RESPONSE TO THE REQUESTS. 

THE APPROPRIATION LEGISLATION AT ISSUE HERE, DEPARTMENT OF INTERIOR
AND RELATED AGENCIES APPROPRIATIONS ACT, 1968, PUB. L. 90 - 28, 81
STAT. 59, 60 (1967), RECITED:

      "BUREAU OF INDIAN AFFAIRS

        "EDUCATION AND WELFARE SERVICES 

"FOR EXPENSES NECESSARY TO PROVIDE EDUCATION AND WELFARE SERVICES
FOR INDIANS, EITHER DIRECTLY OR IN COOPERATION WITH STATES AND OTHER
ORGANIZATIONS, INCLUDING PAYMENT (IN ADVANCE OR FROM DATE OF
ADMISSION), OF CARE, TUITION, ASSISTANCE, AND OTHER EXPENSES OF INDIANS
IN BOARDING HOMES, INSTITUTIONS, OR SCHOOLS; GRANTS AND OTHER
ASSISTANCE TO NEEDY INDIANS; MAINTENANCE OF LAW AND ORDER, AND PAYMENT
OF REWARDS FOR INFORMATION OR EVIDENCE CONCERNING VIOLATIONS OF LAW ON
INDIAN RESERVATIONS OR LANDS; AND OPERATION OF INDIAN ARTS AND CRAFTS
SHOPS; $126,478,000."  THIS WORDING, EXCEPT FOR THE AMOUNT IS IDENTICAL
TO THAT EMPLOYED IN SIMILAR LEGISLATION FOR PRIOR FISCAL YEARS /8/
AND, INDEED, FOR SUBSEQUENT ONES.  /9/  IT IS TO BE NOTED THAT NEITHER
THE LANGUAGE OF THE SNYDER ACT NOR THAT OF THE APPROPRIATIONS ACT
IMPOSES ANY GEOGRAPHICAL LIMITATION ON THE AVAILABILITY OF GENERAL
ASSISTANCE BENEFITS AND DOES NOT PRESCRIBE ELIGIBILITY REQUIREMENTS OR
THE DETAILS OF ANY PROGRAM.  INSTEAD, THE SNYDER ACT STATES THAT THE
BIA (UNDER THE SUPERVISION OF THE SECRETARY) "SHALL DIRECT, SUPERVISE,
AND EXPEND . . . FOR THE BENEFIT, CARE, AND ASSISTANCE OF THE INDIANS
THROUGHOUT THE UNITED STATES" FOR THE STATED PURPOSES INCLUDING, AS THE
TWO PURPOSES FIRST DESCRIBED, "(GENERAL SUPPORT" AND "RELIEF OF
DISTRESS."  THIS IS BROADLY PHRASED MATERIAL AND OBVIOUSLY IS INTENDED
TO INCLUDE ALL BIA ACTIVITIES.  /10/ 

THE GENERAL ASSISTANCE PROGRAM IS DESIGNED BY THE BIA TO PROVIDE
DIRECT FINANCIAL AID TO NEEDY INDIANS WHERE OTHER CHANNELS OF RELIEF,
FEDERAL, STATE, AND TRIBAL, ARE NOT AVAILABLE.  BENEFITS GENERALLY ARE
PAID ON A SCALE EQUIVALENT TO THE STATE'S WELFARE PAYMENTS.  ANY
INDIAN, WHETHER LIVING ON A RESERVATION OR ELSEWHERE, MAY BE ELIGIBLE
FOR BENEFITS UNDER THE VARIOUS SOCIAL SECURITY PROGRAMS IN WHICH HIS
STATE PARTICIPATES AND NO LIMITATION MAY BE PLACED ON SOCIAL SECURITY
BENEFITS BECAUSE OF AN INDIAN CLAIMANT'S RESIDENCE ON A RESERVATION. 
/11/ 

IN THE FORMAL BUDGET REQUEST SUBMITTED TO CONGRESS BY THE BIA FOR
FISCAL 1968, THE PROGRAM WAS DESCRIBED AS FOLLOWS: 

     "GENERAL ASSISTANCE WILL BE PROVIDED TO NEEDY INDIANS ON

  RESERVATIONS WHO ARE NOT ELIGIBLE FOR PUBLIC ASSISTANCE UNDER THE

  SOCIAL SECURITY ACT . . . AND FOR WHOM SUCH ASSISTANCE IS NOT

AVAILABLE FROM ESTABLISHED WELFARE AGENCIES OR THROUGH TRIBAL

  RESOURCES."  HEARINGS ON DEPARTMENT OF THE INTERIOR AND RELATED

  AGENCIES APPROPRIATIONS FOR 1968 BEFORE A SUBCOMMITTEE OF THE

  HOUSE COMMITTEE ON APPROPRIATIONS, 90TH CONG., 1ST SESS., 777 -

  778 (1967), /12/  AND SENATE HEARINGS, FISCAL YEAR 1968, 90TH

  CONG., 1ST SESS., 695 (1967).  /12/

        III 

WE ARE CONFRONTED, THEREFORE, WITH THE ISSUES WHETHER THE
GEOGRAPHICAL LIMITATION PLACED ON GENERAL ASSISTANCE ELIGIBILITY BY THE
BIA IS CONSISTENT WITH CONGRESSIONAL INTENT AND THE MEANING OF THE
APPLICABLE STATUTES, OR, TO PHRASE IT SOMEWHAT DIFFERENTLY, WHETHER THE
CONGRESSIONAL APPROPRIATIONS ARE PROPERLY LIMITED BY THE BIA'S
RESTRICTIONS, AND, IF SO, WHETHER THE LIMITATION WITHSTANDS
CONSTITIONAL ANALYSIS. 

ON THE INITIAL QUESTION, THE SECRETARY ARGUES, FIRST, THAT THE
SNYDER ACT IS MERELY AN ENABLING ACT WITH NO DEFINITION OF THE SCOPE OF
THE GENERAL ASSISTANCE PROGRAM, THAT THE APPROPRIATION ACT DID NOT
PROVIDE FOR OFF-RESERVATION INDIAN WELFARE (OTHER THAN IN OKLAHOMA AND
ALASKA), AND THAT CONGRESS DID NOT INTEND TO EXPAND THE PROGRAM BEYOND
THAT PRESENTED TO IT BY THE BIA REQUEST.  SECONDLY, HE POINTS TO THE
"ON RESERVATIONS" LIMITATION IN THE MANUAL AND SUGGESTS THAT CONGRESS
WAS WELL ACQUAINTED WITH THAT LIMITATION, /13/  AND THAT, BY
LEGISLATING IN THE LIGHT OF THE MANUAL'S LIMITING PROVISION, ITS
APPROPRIATION AMOUNTED TO A RATIFICATION OF THE BIA'S DEFINITIVE
PRACTICE.  HE NOTES THAT, IN RECENT YEARS, CONGRESS HAS TWICE REJECTED
PROPOSALS THAT CLEARLY WOULD HAVE PROVIDED OFF-RESERVATION GENERAL
ASSISTANCE FOR INDIANS.  /14/  THUS, IT IS SAID, CONGRESS HAS
APPROPRIATED NO FUNDS FOR GENERAL ASSISTANCE FOR OFF-RESERVATION
INDIANS AND, AS A PRACTICAL MATTER, THE SECRETARY IS UNABLE TO PROVIDE
SUCH A PROGRAM. 

THE COURT OF APPEALS PLACED PRIMARY RELIANCE ON THE SNYDER ACT'S
PROVISION FOR ASSISTANCE TO "THE INDIANS THROUGHOUT" THE UNITED
STATES.  IN CONCLUDED THAT THE ACT ENVISIONED NO GEOGRAPHICAL
LIMITATIONS ON INDIAN PROGRAMS AND THAT, ABSENT A CLEAR CONGRESSIONAL
RATIFICATION OF SUCH A POLICY, THE SECRETARY WAS POWERLESS TO SHRINK
THE COVERAGE DOWN TO SOME LESSER GROUP OF INDIAN BENEFICIARIES. 

ALTHOUGH WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS AND ITS
REVERSAL OF THE JUDGMENT OF THE DISTRICT COURT, WE REACH ITS RESULT ON
A NARROWER GROUND.  WE NEED NOT APPROACH THE ISSUE IN TERMS OF WHETHER
CONGRESS INTENDED FOR ALL INDIANS, REGARDLESS OF RESIDENCE AND OF THE
DEGREE OF ASSIMILATION, TO BE COVERED BY THE GENERAL ASSISTANCE
PROGRAM.  WE NEED ONLY ASCERTAIN THE INTENT OF CONGRESS WITH RESPECT TO
THOSE INDIAN CLAIMANTS IN THE CASE BEFORE US.  THE QUESTION, SO
LIMITED, IS WHETHER CONGRESS INTENDED TO EXCLUDE FROM THE GENERAL
ASSISTANCE PROGRAM THESE RESPONDENTS AND THEIR CLASS, WHO ARE FULL
BLOODED, UNASSIMILATED INDIANS LIVING IN AN INDIAN COMMUNITY NEAR THEIR
NATIVE RESERVATION, AND WHO MAINTAIN CLOSE ECONOMIC AND SOCIAL TIES
WITH THAT RESERVATION.  EXCEPT FOR FORMAL RESIDENCE OUTSIDE THE
PHYSICAL BOUNDARIES OF THE PAPAGO RESERVATION, THE RESPONDENTS, AS HAS
BEEN CONCEDED, MEET ALL OTHER REQUIREMENTS FOR THE GENERAL ASSISTANCE
PROGRAM. 

        IV 

THERE IS, OF COURSE, SOME FORCE IN THE SECRETARY'S ARGUMENT AND IN
THE FACTS THAT THE BIA'S BUDGET REQUESTS CONSISTENTLY CONTAINED "ON
RESERVATIONS"  GENERAL ASSISTANCE LANGUAGE AND THAT THERE WAS TESTIMONY
BEFORE SUCCESSIVE APPROPRIATIONS SUBCOMMITTEES TO THE EFFECT THAT
ASSISTANCE OF THIS KIND WAS CUSTOMARILY SO RESTRICTED.  NONETHELESS,
OUR EXAMINATION OF THIS AND OTHER MATERIAL LEADS US TO A CONCLUSION
CONTRARY TO THAT URGED BY THE SECRETARY. 

A. IN ACTUAL PRACTICE, GENERAL ASSISTANCE CLEARLY HAS NOT BEEN
LIMITED TO RESERVATION INDIANS.  INDEED, THE MANUAL'S PROVISION, SEE N.
6, SUPRA, SO HEAVILY RELIED UPON BY THE SECRETARY, ITSELF PROVIDES THAT
GENERAL ASSISTANCE IS AVAILABLE TO NONRESERVATION INDIANS IN ALASKA AND
OKLAHOMA.  THE RATIONALE PROFFERED FOR THIS IS: 

   "THE SITUATION OF INDIANS IN ALASKA AND OKLAHOMA HAS

HISTORICALLY BEEN UNIQUE.  MUCH OF OKLAHOMA WAS ONCE SET ASIDE AS

  AN INDIAN TERRITORY, AND THOUGH MOST OF THE RESERVATIONS HAVE

  BEEN ABOLISHED, THERE REMAINS A LARGE AREA OF CONCENTRATED INDIAN

  POPULATION WITH TRIBAL ORGANIZATION, LIVING ON LAND HELD IN TRUST

  BY THE UNITED STATES . . . A SIMILAR SITUATION OF LARGE

  CONCENTRATIONS OF NATIVE AMERICANS, WITH FEW RESERVATIONS AND

  SUBSTANTIAL SEPARATE LEGISLATION PREVAILS IN ALASKA . . . THE

  RESPONSIBILITIES OF THE BUREAU OF INDIAN AFFAIRS IN THESE

  JURISDICTIONS ARE SUBSTANTIALLY SIMILAR TO THE BUREAU'S

  RESPONSIBILITIES ON THE RESERVATIONS."  BRIEF FOR PETITIONER 21. 

WHILE THIS EXCEPTION IS NOT NECESSARILY IRRATIONAL, IT DEFINITELY
DEMONSTRATES THAT THE LIMITATION IN THE BUDGET REQUESTS IS NOT RIGIDLY
FOLLOWED BY THE BIA, INASMUCH AS MOST OFF-RESERVATION INDIANS IN THE
TWO NAMED STATES ARE REGARDED AS ELIGIBLE FOR GENERAL ASSISTANCE
FUNDS.  IF, AS THE SECRETARY URGES, WE ARE TO ASSUME THAT CONGRESS HAS
BEEN AWARE OF OF THE MANUAL'S PROVISION, CONGRESS WAS JUST AS CLEARLY
ON NOTICE THAT THE WORDS "ON RESERVATIONS" DID NOT POSSESS THEIR
LITERAL MEANING IN THAT CONTEXT.  SURELY, SOME OF THE REASONS FOR THE
ALASKA-OKLAHOMA EXCEPTION ARE EQUALLY APPLICABLE TO INDIANS OF THE RUIZ
CLASS.     B. THERE WAS TESTIMONY IN SEVERAL OF THE HEARINGS THAT THE
BIA, IN FACT, WAS NOT LIMITING GENERAL ASSISTANCE TO THOSE WITHIN
RESERVATION BOUNDARIES AND, ON MORE THAN ONE OCCASION, CONGRESS WAS
NOTIFIED THAT EXCEPTIONS WERE BEING MADE WHERE THEY WERE DEEMED
APPROPRIATE.  NOTWITHSTANDING THE MANUAL OT LEAST THREE CATEGORIES OF
OFF-RESERVATION INDIANS OUTSIDE ALASKA AND OKLAHOMA HAVE BEEN TREATED
AS ELIGIBLE FOR GENERAL ASSISTANCE.  THE FIRST IS THE INDIAN WHO
RELOCATES IN THE CITY THROUGH THE BIA RELOCATION PROGRAM AND WHO THEN
IS ELIGIBLE FOR GENERAL ASSISTANCE FOR THE PERIOD OF TIME REQUIRED FOR
HIM, UNDER STATE LAW, TO ESTABLISH RESIDENCE IN THE NEW LOCATION.  /15/
THE SECOND EVIDENTLY IS THE INDIAN FROM THE TURTLE MOUNTAIN
RESERVATION IN NORTH DAKOTA WHO LIVES ON TRUST LAND NEAR BUT APART FROM
THAT RESERVATION.  /16/  THE THIRD APPEARS TO BE THE INDIAN RESIDING IN
RAPID CITY, SOUTH DAKOTA.  /17/ 

IN ADDITION, ALTHOUGH NOT CONTROLLING, IT IS NOT IRRELEVANT THAT THE
"ON RESERVATIONS" LIMITATION IN THE BUDGET REQUESTS HAS NEVER APPEARED
IN THE FINAL APPROPRIATION BILLS. 

C. EVEN MORE IMPORTANT IS THE FACT THAT, FOR MANY YEARS, TO AND
INCLUDING THE APPROPRIATION YEAR AT ISSUE, THE BIA ITSELF MADE
CONTINUAL REPRESENTATIONS TO THE APPROPRIATIONS SUBCOMMITTEES THAT
NONURBAN INDIANS LIVING "NEAR"  A RESERVATION WERE ELIGIBLE FOR BIA
SERVICES.  ALTHOUGH, TO BE SURE, SEVERAL PASSAGES IN THE LEGISLATIVE
HISTORY AND THE FORMAL BUDGET REQUESTS HAVE DEFINED ELIGIBILITY IN
TERMS OF INDIANS LIVING "ON RESERVATIONS," THE BIA, NOT INFREQUENTLY,
HAS INDICATED THAT LIVING "ON OR NEAR" A RESERVATION EQUATES WITH
LIVING "ON" IT. 

AN EARLY EXAMPLE OF THIS APPEARS AT THE FISCAL 1948 SENATE HEARING. 
THE FOLLOWING COLLOQUY BETWEEN SENATOR MCCARRAN AND ASSISTANT
COMMISSIONER ZIMMERMAN IS ONE OF THE STRONGER STATEMENTS MADE TO
CONGRESS CONCERNING THE BIA'S POLICY OF LIMITING GENERAL ASSISTANCE TO
RESERVATION INDIANS AND YET, WITHIN THIS VERY DIALOGUE, RELIED ON
EXPLICITLY BY THE SECRETARY, IS AN INDICATION THAT "ON RESERVATIONS" IS
NOT GIVEN A RIGID INTERPRETATION: 

     "SENATOR MCCARRAN.  I HAVE ONE QUESTION RIGHT THERE. 

     "DO THESE ITEMS ADDRESS THEMSELVES TO RESERVATION INDIANS OR

  NONRESERVATION INDIANS, OR BOTH? 

     "TAKE, FOR INSTANCE, THIS WELFARE ADMINISTRATION FUND,

  $87,786.  IS THAT GIVEN TO RESERVATION INDIANS, NONRESERVATION

  INDIANS ALIKE? 

     "MR. ZIMMERMAN.  NO, SIR; IT IS NOT. 

     "SENATOR MCCARRAN.  TO WHOM IS IT GIVEN? 

     "MR. ZIMMERMAN.  THIS MONEY GOES TO RESERVATION INDIANS. 

     "SENATOR MCCARRAN.  ENTIRELY? 

"MR. ZIMMERMAN.  YES. 

     "SENATOR MCCARRAN.  NOW, IN MY STATE, FOR INSTANCE, YOU HAVE
IN

  THE OUTSKIRTS OF RENO AND AGAIN ON THE OUTSKIRTS OF BATTLE

  MOUNTAIN SMALL INDIAN VILLAGES.  DO THEY GET ANYTHING IN THE WAY

  OF RELIEF? 

     "MR. ZIMMERMAN.  THOSE TOWN COLONIES ARE TREATED AS
RESERVATIONS. 

     "SENATOR MC CARRAN.  YOU REGARD THEM AS RESERVATIONS? 

     "MR. ZIMMERMAN.  YES; SOME OF THEM ARE. 

     "SENATOR MCCARRAN.  IS THE COLONY OUTSIDE OF THE CITY OF RENO
A RESERVATION? 

     "MR. ZIMMERMAN.  FOR CERTAIN PURPOSES THE COURTS HAVE HELD
THAT IT IS A RESERVATION. 

     "SENATOR MCCARRAN.  DO THEY OWN THE LAND? 

"MR. ZIMMERMAN.  YES; THE FEDERAL GOVERNMENT OWNS THE LAND. 

     "SENATOR MCCARRAN.  THE FEDERAL GOVERNMENT OWNS THE LAND? 

     "MR. ZIMMERMAN.  YES, SIR. 

     "SENATOR MCCARRAN.  THEY BUILD THEIR HOUSES ON IT OR THE
FEDERAL GOVERNMENT? 

     "MR. ZIMMERMAN.  THEY BUILD THEIR OWN HOUSES. 

     "SENATOR MCCARRAN.  BUT THOSE INDIANS DO RECEIVE THE
BENEFITS? 

     "MR. ZIMMERMAN.  THEY WOULD BE ELIGIBLE; YES, SIR."  SENATE

  HEARINGS, FISCAL YEAR 1948, 80TH CONG., 1ST SESS., 598 - 599

  (1947). 

THE INTERCHANGEABILITY OF "ON" AND "ON OR NEAR" APPEARS MORE
DIRECTLY IN LATER YEARS.  IN THE RELOCATION SERVICES SECTION OF THE
BIA'S BUDGET JUSTIFICATION FOR FISCAL 1959 IT IS STATED: 

"IT IS ESTIMATED THAT WITHIN THE CONTINENTAL UNITED STATES THERE ARE
APPROXIMATELY 400,000 MEMBERS OF INDIAN TRIBES AND BANDS.  OF THIS
NUMBER, APPROXIMATELY 300,000 LIVE ON OR ADJACENT TO RESERVATIONS FOR
WHICH THE BUREAU ASSUMES SOME RESPONSIBILITY.  ON MOST OF THE INDIAN
RESERVATIONS THERE IS A SURPLUS OF POPULATION IN PROPORTION TO
RESERVATION RESOURCES.  OPPORTUNITIES FOR SELF-SUPPORT ON OR NEAR THESE
RESERVATIONS ARE WHOLLY INADEQUATE AND THE INCREASING SURPLUS
POPULATION IS FACED WITH THE ALTERNATIVE OF MOVING AWAY FROM THE
RESERVATION OR REMAINING TO LIVE IN PRIVATION OR DEPENDENT, PARTIALLY
OR WHOLLY, UPON SOME FORM OF PUBLIC ASSISTANCE."  SENATE HEARINGS,
FISCAL YEAR 1959, 85TH CONG., 2D SESS., 288 (1958) (EMPHASIS
SUPPLIED).  /18/ 

THE RELOCATION PROGRAM IS COVERED BY THE WELFARE APPROPRIATION.  IT
IS DESIGNED TO PROVIDE SHORT-TERM ASSISTANCE TO THE NEEDY INDIAN WHO
LEAVES THE RESERVATION AREA AND THEREBY DISQUALIFIES HIMSELF FOR THE
GENERAL ASSISTANCE PROGRAM.  BY DESCRIBING THE INDIANS WHO "LIVE" ON OR
ADJACENT TO RESERVATIONS"  AS THOSE ENTITLED TO RELOCATION SERVICES
WHEN THEY DEPART, THE BIA IN EFFECT WAS TELLING CONGRESS THAT "MOVING
AWAY FROM THE RESERVATION" WAS A POSSIBILITY EVEN THOUGH THE INDIAN
LIVES ONLY "ADJACENT TO" THE RESERVATION, AND IT WOULD SEEM TO FOLLOW
THAT THE INDIAN LIVING "ADJACENT TO" THE RESERVATION WAS ALSO ELIGIBLE
FOR GENERAL ASSISTANCE. 

AT THE FISCAL 1962 HEARING, CONGRESSMAN FENTON INQUIRED OF ASSISTANT
COMMISSIONER GIFFORD AS TO THE INDIAN POPULATION IN THE UNITED STATES. 
SHE REPLIED: 

     "WE HAVE NO ALSOLUTE FIGURE.  OUR BEST ESTIMATE OF INDIANS ON

  THE RESERVATIONS RIGHT NOW IS ABOUT 375,000, I THINK.  THAT IS A

  FIGURE WE ARE USING.  OF COURSE, THERE ARE INDIANS OFF OF THE

 RESERVATIONS, AND WE DO NOT HAVE THIS COUNT TOO CLEARLY. 

  HOWEVER, FOR THOSE WE CONSIDER OUR DIRECT RESPONSIBILITY ON THE

  RESERVATIONS-- 

     "MR. FENTON.  TO WHOM WE CONTRIBUTE? 

     "MISS GIFFORD.  YES WE BELIEVE IT IS ABOUT 375,000."  HOUSE

  HEARINGS, FISCAL YEAR 1962, 87TH CONG., 1ST SESS., 205 - 206

  (1961). 

THE FOREGOING STATEMENT BY THE ASSISTANT COMMISSIONER, OF COURSE, IS
NOT IN ITSELF PARTICULARLY REVEALING ON THE ISSUE THAT CONFRONTS US.
AS CAN BE SEEN FROM SUBSEQUENT HEARINGS, HOWEVER, THE STATED FIGURE
INCLUDES INDIANS "ON OR NEAR THE RESERVATIONS" AND IS NOT RESTRICTED TO
INDIANS WHO LIVE "ON."  ALSO, THIS "ON OR NEAR" GROUP, IN CONTRAST TO
THOSE WHO LIVE "OFF" THE RESERVATION, ARE WITHIN THE GROUP FOR WHOM THE
BIA ASSUMED "DIRECT RESPONSIBILITY."  OBVIOUSLY, ONE CAN NEVER BE
CERTAIN WHETHER THIS EXPANDED READING OF "ON" IS THE RESULT OF THE
BIA'S DESIRE, WHEN SEEKING APPROPRIATIONS, TO REPRESENT ITS
JURISDICTION AND FUNCTION SOMEWHAT MORE BROADLY THAN IT ACTUALLY WAS,
OR WHETHER IT REFLECTS ACTUAL POLICY. 

THE "ON OR NEAR" REPRESENTATIONS CONTINUED TO BE MADE TO CONGRESS. 
AT THE FISCAL 1963 HOUSE HEARING, CONGRESSMEN QUESTIONED COMMISSIONER
NASH, ASSOCIATE COMMISSIONER OFFICER, AND ASSISTANT COMMISSIONER
GIFFORD AS TO THE INDIAN POPULATION SERVED BY THE BIA: 

     "MR. DENTON.  HOW MANY INDIANS ARE THERE AT THE PRESENT TIME? 

     "MISS GIFFORD.  YOU MEAN THE TOTAL POPULATION? 

     "MR. DENTON.  YES. 

    "MISS GIFFORD.  WE ESTIMATE THAT THE TOTAL POPULATION ON OR

  NEAR THE RESERVATIONS THAT WE SERVE IS 380,000. 

       .          .          .          . 

     "MR. DENTON.  I EXPECT THERE IS NO WAY YOU COULD TELL HOW MANY

INDIANS THERE ARE OFF THE RESERVATIONS. 

     "MR. NASH.  WELL, WE CAN TAKE THE TOTAL CENSUS FIGURE FOR THE

  INDIAN POPULATION AND SUBTRACT THOSE THAT ARE LISTED AS LIVING ON

 OR NEAR THE RESERVATIONS, AND THIS GIVES US A FIGURE OF 172,000

  OFF THE RESERVATIONS; 380,000 ON OR NEAR THE RESERVATIONS,

  INCLUDING ALASKA. 

        .          .       .          . 

     "MR. KIRWAN.  WHAT DID YOU SAY WAS ON THE RESERVATION? 

     "MR. NASH.  380,000. 

  .          .          .          . 

     "MR. OFFICER.  WE ARE CITING OUR FIGURE OF 380,000 TO INCLUDE

  THOSE INDIANS WHO LIVE IN THE RESERVATION VICINITY AND ARE

  ELIGIBLE TO RECEIVE OUR SERVICES AS WELL AS THE INDIANS AND OTHER

  ALASKA NATIVES.  THE TOTAL OF ALASKA NATIVES IS 43,000.  WHEN WE

  SUBTRACT THAT FROM 380,000, WE HAVE 337,000 INDIANS WHO LIVE ON

  OR NEAR RESERVATIONS OUTSIDE ALASKA.  NOW IF WE ARE GOING TO BE

  CONCERNED ONLY WITH THOSE WHO LIVE ON RESERVATIONS, THEN WE HAVE

  THAT FIGURE OF 285,000, WHICH WAS IN OUR PRESS RELEASE. 

     "MR. KIRWAN.  WE WANT TO CLEAR THAT UP.  THE PRESS RELEASE

  EMPHASIZES THE 285,000 ON THE RESERVATION.  NOW WE HAVE THE

  FIGURE ON THE RESERVATION AND THOSE WHO LIVE NEAR THE

  RESERVATION.  THAT IS THE POINT WE WANT TO CLEAR. 

     "MR. OFFICER.  THE 380,000 ARE THOSE WHO LIVE ON OR NEAR

  RESERVATIONS PLUS THE NATIVES OF ALASKA. 

     "MR. DENTON.  THAT DOES INCLUDE ESKIMOS? 

     "MR. OFFICER.  YES, SIR. 

"MR. DENTON.  WHAT DO YOU DO IN PLACES LIKE OKLAHOMA, WHERE THE

  INDIANS LIVE 'CHECKERBOARD'? 

     "MR. OFFICER.  IT IS FOR THAT REASON THAT WE CITE FIGURES OF

  INDIANS LIVING ON OR NEAR RESERVATIONS; BECAUSE WE HAVE A NUMBER

  OF SITUATIONS SIMILAR TO THOSE IN OKLAHOMA, WHERE YOU DON'T HAVE

  A WELL-DEFINED RESERVATION BOUNDARY."  HOUSE HEARINGS, FISCAL

  YEAR 1963, 87TH CONG., 2D SESS., 352 - 354 (1962) (EMPHASIS

  SUPPLIED).  /19/ 

IT IS INTERESTING TO NOTE THAT THE SUBCOMMITTEE WAS ADVISED THAT
ALASKA AND OKLAHOMA INDIANS ARE SUBSUMED IN THE "ON OR NEAR" CATEGORY
RATHER THAN PLACED IN THE PURE "ON" GROUP, AND, ADMITTEDLY, THEY ARE
ENTITLED TO GENERAL ASSISTANCE.  THE FIGURES STATES ALSO INDICATE THAT
THE NUMBER QUOTED THE PRECEDING YEAR BY MISS GIFFORD AS THE NUMBER "ON
THE RESERVATION"  ACTUALLY REFERRED TO THOSE "ON OR NEAR." 

A NEARLY IDENTICAL DIALOGUE OCCURRED IN 1964 AT THE SENATE
SUBCOMMITTEE: 

     "SENATOR BIBLE.  HOW MANY INDIANS DO YOU HAVE UNDER YOUR
JURISDICTION? 

     "MR. NASH.  380,000. 

     "SENATOR BIBLE.  HOW MANY NONRESERVATION INDIANS DO YOU HAVE? 

  ARE THOSE JUST RESERVATION INDIANS? 

     "MR. NASH.  THESE ARE ON OR NEAR.  THIS WOULD NOT INCLUDE, FOR

  EXAMPLE, INDIANS LIVING IN LOS ANGELES, SAN FRANCISCO, CHICAGO,

  DENVER, MINNEAPOLIS, UNLESS THEY WERE BROUGHT THERE AS PART OF

  OUR VOCATIONAL TRAINING OR RELOCATION PROGRAMS. 

     "SENATOR BIBLE.  WHAT IS THE TOTAL INDIAN POPULATION IN THE
UNITED STATES? 

     "MR. NASH.  THE 1960 CENSUS COUNTED 552,000 INDIANS, ESKIMOS,
AND ALEUTS. 

     "CHAIRMAN HAYDEN.  ARE THESE FULL-BLOODS OR HALFS? 

     "MR. NASH.  THE CENSUS DOES NOT MAKE AN INQUIRY AS TO FULL OR

  HALF.  THEY MERELY SAY, 'ARE YOU AN INDIAN?'  'ARE YOU KNOWN AS

  AN ESKIMO?' 

     "SENATOR BIBLE.  FOLLOWING THE CHARIMAN'S QUESTION, WHERE DOES

  YOUR JURISDICTION REST IN THAT REGARD?  DO YOU HAVE A MEASURING

  STICK? 

     "MR. NASH.  NO, SIR.  OUR BASIS FOR PROVIDING SERVICES TO AN

  INDIAN IS PRIMARILY ON REAL ESTATE.  THAT IS, WE SERVICE THOSE

  INDIVIDUALS WHO RESIDE ON TRUST OR RESTRICTED LAND, OR SO CLOSE

  TO IT THAT THE PROGRAM OF THE RESERVATION WOULD BE AFFECTED BY

  SERVICES NOT PERFORMED FOR THAT PERSON."  SENATE HEARINGS, FISCAL

  YEAR 1965, 88TH CONG., 2D SESS., 227 - 228 (1964) (EMPHASIS

  SUPPLIED).  /20/ 

THE NOW-FAMILIAR BIA REPRESENTATIONS APPEAR AGAIN AT THE HOUSE
HEARING FOR FISCAL 1967: 

     "MR. DENTON.  HOW MANY INDIANS ARE THERE ON THE RESERVATIONS

  AND HOW MANY ARE UNDER THE INDIAN BUREAU'S SUPERVISION? 

     "MR. NASH.  WE RECOGNIZE WHAT WE CALL THE FEDERAL INDIAN
SERVICE POPULATION AT 380,000. 

     "MR. DENTON.  ARE THEY ON RESERVATIONS? 

     "MR. NASH.  THIS IS ON AND NEAR.  THE FIGURE ON THE
RESERVATION

  IS SOMEWHAT SMALLER, BUT THIS IS THE FIGURE WHICH IS OF THOSE WHO

  ARE ON RESERVATIONS, ARE LIVING ON TRUST LANDS, HAVE TITLES WHICH

  ARE ALIENATED, RESTRICTED AGAINST ALIENS, OR ARE VILLAGE

  COMMUNITIES IN ALASKA, OKLAHOMA, OR ARE SO NEAR TO RESERVATIONS

  THAT THEY ARE DEPENDENT UPON THE FACILITIES PROVIDED BY THE

  BUREAU OF INDIAN AFFAIRS FOR THEIR MAJOR COMMUNITY SERVICES. 

        .          .          .          . 

     "MR. DENTON.  WHAT IS THE TOTAL INDIAN POPULATION? 

     "MR. NASH.  THE 1960 CENSUS COUNTED 552,000.  IT WOULD BE FROM

THERE UP, BECAUSE THERE ARE A GOOD MANY PEOPLE WHO-- 

"MR. DENTON.  AND 380,000 ARE ON THE RESERVATIONS, SO ABOUT

  170,000 ARE NOT UNDER THE GOVERNMENT'S CARE. 

     "MR. NASH.  THAT IS CORRECT."  HOUSE HEARINGS, FISCAL YEAR

1967, 89TH CONG., 2D SESS., 370 - 371 (1966) (EMPHASIS

SUPPLIED). 

AT THE HEARING FOR FISCAL 1968, THE APPROPRIATION YEAR DIRECTLY AT
ISSUE, COMMISSIONER BENNETT MADE LIKE REPRESENTATIONS TO THE SENATE
SUBCOMMITTEE.  THESE COULD HAVE LED CONGRESS TO BELIEVE THAT THERE ARE
ONLY TWO RELEVANT CLASSES OF INDIANS SO FAR AS NON-LAND-RELATED BIA
SERVICES ARE CONCERNED, THOSE LIVING "OFF" THE RESERVATION AND THOSE
LIVING "ON OR NEAR": 

     "SENATOR BIBLE.  . . . MR. COMMISSIONER, AND I AM SORRY
BECAUSE

  YOU MAY HAVE COVERED THIS IN EARLIER QUESTIONING, BUT WHAT IS THE

  TOTAL INDIAN POPULATION UNDER YOUR JURISDICTION AT THE PRESENT

  TIME? 

     "MR. BENNETT.  THE TOTAL INDIAN POPULATION UNDER OUR

  JURISDICTION AT THE PRESENT TIME IS 380,000.  THESE ARE ON OR

  NEAR RESERVATIONS AND COMPRISE OUR SERVICE POPULATION BASED ON

THE 1960 CENSUS. 

     "SENATOR BIBLE.  HOW MANY INDIANS DO WE HAVE IN THE UNITED

  STATES WHO ARE NOT UNDER YOUR JURISDICTION AND ARE NOT YOUR

  RESPONSIBILITY? 

"MR. BENNETT.  BASED ON THE 1960 CENSUS AGAIN THE FIGURE IS

  ABOUT 170,000.  THESE ARE PEOPLE WHO MOVED AWAY FROM THE

  RESIDENTIAL AREAS AND GENERALLY HAVE BECOME A PART OF OTHER

  COMMUNITIES."  SENATE HEARINGS, FISCAL YEAR 1968, 90TH CONG., 1ST

  SESS., 819 (1967) (EMPHASIS SUPPLIED).  /21/ 

ANOTHER RECURRING REPRESENTATION MADE BY THE BIA THROUGHOUT THE
ANNUAL HEARINGS IS THAT WHENEVER IT WAS ASKED ABOUT THOSE INDIANS WHO
WERE OUTSIDE THE AGENCY'S SERVICE AREA, THAT IS, "OFF" THE
RESERVATIONS, THE ANSWER WOULD REFER TO INDIANS WHO HAD LEFT THE
RESERVATIONS AND MOVED TO URBAN AREAS OR WHO HAD ATTEMPTED TO BE
ASSIMILATED BY THE GENERAL POPULATION.  CERTAINLY, NONE OF THE
REFERENCES TO THOSE OUTSIDE THE SERVICE AREA SEEM APPROPRIATELY APPLIED
TO INDIANS OF THE RUIZ CLASS. 

DURING THE FISCAL 1950 SENATE HEARING, WHEN THE QUESTION AROSE AS TO
THE STATUS OF INDIANS WHO HAD LEFT THE RESERVATION, ASSISTANT
COMMISSIONER ZIMMERMAN STATED: 

"FRANKLY, IT HAS NOT BEEN CONSIDERED THE OBLIGATION OF THE INDIAN
SERVICE IN THE YEARS PAST TO POLICE INDIANS AFTER THEY HAVE ESTABLISHED
THEMSELVES IN PHOENIX OR FLAGSTAFF OR GRAND FORKS, OR WHEREVER IT MAY
BE."  SENATE HEARINGS, FISCAL YEAR 1950, 81ST CONG., 1ST SESS., 483
(1949)  

AT THE FISCAL 1952 HEARING, THE FOLLOWING EXCHANGE BETWEEN SENATOR
YOUNG AND COMMISSIONER MYER GIVES SOME INDICATION OF WHAT CONGRESS HAD
IN MIND WITH RESPECT TO INDIAN BENEFICIARIES "LEAVING THE
RESERVATION": 

     "SENATOR YOUNG.  . . . IS IT TRUE THAT, IF AN INDIAN LEAVES

  NORTH DAKOTA TO GO OUT TO THE STATE OF WASHINGTON TO WORK, AND IF

  HE RUNS OUT OF WORK AND RUNS OUT OF MONEY OUT THERE, . . . HE IS

ELIGIBLE FOR RELIEF ONLY IF HE IS BACK ON THE RESERVATION? 

     "MR. MYER.  NO. IF HE HAS ESTABLISHED RESIDENCE, HE IS AS

  ELIGIBLE AS ANYONE.  I DO NOT KNOW WHAT THE SITUATION IS IN THE

  STATE OF WASHINGTON, BUT SOME STATES WOULD REQUIRE A 2-YEAR

  RESIDENCE; SOME DO NOT. 

     "SENATOR YOUNG.  WHY COULD NOT AN INDIAN GET RELIEF BACK THERE

AS WELL AS ON THE RESERVATION? 

     "MR. MYER.  THAT PRESENTS A PROBLEM THAT IS A MATTER OF VERY

  BASIC POLICY.  THAT IS A MATTER OF WHETHER OR NOT WE ARE GOING TO

  EXTEND OUR SERVICES TO INDIANS WHEREVER THEY ARE AND FOLLOW THEM

  AROUND THE UNITED STATES AS THEY LEAVE THE RESERVATION WITH THE

  TYPE OF SERVICE WE ARE PROVIDING ON THE RESERVATION."  SENATE

  HEARINGS, FISCAL YEAR 1952, 82D CONG., 1ST SESS., 372 (1951). 

THE FOLLOWING REPRESENTATION BY ACTING COMMISSIONER CROW TO THE
HOUSE SUBCOMMITTEE IN 1961 SEEMS TO INDICATE THAT GENERAL ASSISTANCE,
ALTHOUGH TIED TO RESIDENCE, IS CONCERNED WITH THOSE INDIANS WHO HAVE
NOT BEEN ASSIMILATED: 

     "THE BUREAU PROVIDES SERVICES AND ASSISTS THE STATES IN

  FURNISHING SERVICES TO INDIANS IN THE UNITED STATES, INCLUDING

  THE NATIVES OF ALASKA, IN THE FIELDS OF HUMAN AND NATURAL

  RESOURCES.  THIS INCLUDES AMONG OTHER THINGS PROGRAMS OF

  EDUCATION, WELFARE, LAW AND ORDER, AND THE PROTECTION,

  DEVELOPMENT, AND MANAGEMENT OF TRUST PROPERTY.  SERVICES ARE, IN

  GENERAL, LIMITED TO THOSE ARISING OUT OF OUR RELATIONSHIP

  REGARDING TRUST PROPERTY AND TO THOSE INDIAN PEOPLE WHO RESIDE ON

  TRUST OR RESTRICTED LAND.  FUNDS ARE NOT INCLUDED IN THESE

  ESTIMATES FOR FURNISHING SERVICES TO INDIAN PEOPLE WHO HAVE

  ESTABLISHED THEMSELVES IN THE GENERAL SOCIETY."  HOUSE HEARINGS,

  FISCAL YEAR 1962, 87TH CONG., 1ST SESS., 98 (1961). 

IN THE FISCAL 1964 HEARINGS, COMMISSIONER NASH MADE THE FOLLOWING
STATEMENTS INDICATING THAT "LEAVING THE RESERVATION" MEANT SOMETHING
FAR DIFFERENT FROM MOVING 15 MILES TO A NONURBAN INDIAN VILLAGE WHILE
STILL MAINTAINING CLOSE TIES WITH THE NATIVE RESERVATION: 

"THE 1960 CENSUS SHOWED 552,000 INDIANS, ESKIMOS AND ALL OTHERS, ALL
PEOPLE DEFINED AS 'INDIANS' BY THE CENSUS.  THIS WOULD INCLUDE THOSE
WHO HAVE LEFT RESERVATIONS, GONE TO LOS ANGELES, SAN FRANCISCO, DENVER,
CHICAGO, BECAUSE THEY SIMPLY ANSWERED TO THE CENSUS TAKER, 'YES, I AM
AN INDIAN,'  WHEN THEY ASKED.  WE DO NOT PRETEND TO FOLLOW THOSE PEOPLE
WITH SERVICES WHEREVER THEY GO. 

     ". . . WE HAVE A NEED FOR SERVICES FOR 380,000 PEOPLE.  THIS

  INCLUDES THOSE WHO ARE LIVING DIRECTLY ON THE RESERVATIONS, AND

  THOSE WHO ARE LIVING VERY CLOSE, SO THAT THE WAY IN WHICH THEY

  LIVE AFFECTS RESERVATIONS PROGRAMS."  HOUSE HEARINGS, FISCAL YEAR

  1964, 88TH CONG., 1ST SESS., 889 (1963) (EMPHASIS SUPPLIED). 

SEE ALSO SENATE HEARINGS, FISCAL YEAR 1967, 89TH CONG., 2D SESS., 295 -
300 (1966). 

IT APPARENTLY WAS NOT UNTIL 1971, FOUR YEARS AFTER THE APPROPRIATION
FOR FISCAL 1968, THAT ANYONE IN CONGRESS SERIOUSLY QUESTIONED THE BIA
AS TO ITS PRECISE POLICY CONCERNING THE "OFF-ON" DICHOTOMY.  THE
FOLLOWING DIALOGUE BETWEEN SENATOR BIBLE, LONG A MEMBER OF THE SENATE
SUBCOMMITTEE, WITH COMMISSIONER BRUCE IS INSTRUCTIVE: 

     "SENATOR BIBLE . . . WHAT RULE DO YOU USE TO DETERMINE WHO IS

  UNDER YOUR JURISDICTION?  WHO IS UNDER THE JURISDICTION OF THE

  BUREAU OF INDIAN AFFAIRS? 

     "MR. BRUCE.  AMERICAN INDIANS LIVING ON RESERVATIONS,

  ONE-FOURTH DEGREE BLOOD OR MORE LIVING IN THE UNITED STATES AND

  ALASKA. 

     "SENATOR BIBLE.  ONE-FOURTH DEGREE OR MORE IS ONE OF THE

  QUALIFICATIONS.  THEY MUST ALSO LIVE ON A RESERVATION? 

     "MR. BRUCE.  ON OR NEAR. 

     "SENATOR BIBLE.  WHAT DOES THE WORD 'NEAR' MEAN? 

     "MR. BRUCE.  IT IS VERY DIFFICULT TO DEFINE.  NEAR RESERVATION
WOULD BE A NEARBY COMMUNITY. 

"SENATOR BIBLE.  WELL, HALF A MILE, 1 MILE, 5 MILES, 100 YARDS:

   I AM JUST TRYING TO FIND OUT WHAT YOUR JURISDICTION IS.  YOU

  HAVE SOME RESPONSIBILITIES.  NOW WHAT ARE YOU RESPONSIBLE FOR? 

     "MR. BRUCE.  THEY VARY AND THAT IS WHY IT IS DIFFICULT TO
ANSWER SPECIFICALLY. 

     "SENATOR BIBLE.  WELL, GIVE ME THE VARIABLES THEN.  FROM 100
YARDS UP TO 10 MILES? 

     "IS THAT DEFINED IN A STATUTE ANYWHERE?  IF I WAS TO BECOME
THE

  COMMISSIONER OF INDIAN AFFAIRS, GOD FORBID, HOW WOULD I KNOW WHO

  I HAD JURISDICTION OVER?  THEY MUST MAKE SOME DETERMINATION. 

     "MR. BRUCE.  THERE IS A DEFINITION FOR OKLAHOMA, AND ALASKA. 

     "SENATOR BIBLE.  WHAT DO YOUR LAWYERS TELL YOU?  . . . CAN YOU

  GO INTO THE HEART OF MANHATTAN AND FIND SOME INDIAN WITH

ONE-FOURTH DEGREE OF INDIAN BLOOD?  DO YOU HAVE JURISDICTION OVER

  HIM IN THE HEART OF MANHATTAN? 

     "MR. BRUCE.  NO, SIR; NOT OVER MANHATTAN. 

     "SENATOR BIBLE.  WELL, IF NOT OVER MANHATTAN, HOW ABOUT NEW

  YORK STATE?  HOW ABOUT TROY OR SYRACUSE OR ROCHESTER? 

        .          .          .          . 

     "SENATOR BIBLE.  . . . I AM JUST TRYING TO GET THE RECORD

  STRAIGHT TO SEE WHAT YOUR RESPONSIBILITY IS FOR INDIANS BEYOND

  THE RESERVATION.  I THINK WE ARE CLEAR FOR THE INDIANS ON THE

  RESERVATION." 

AT THIS POINT A RECESS WAS TAKEN AND THE COMMISSIONER WAS INSTRUCTED TO
PRESENT THE COMMITTEE WITH A MORE PRECISE BREAKDOWN.  THE DIALOGUE
CONTINUED: 

     "SENATOR BIBLE.  DO YOU HAVE A BREAKDOWN FOR THE INDIANS ON
THE

  RESERVATIONS AND THE NUMBER BEYOND INDIAN RESERVATIONS?  CAN YOU

  GIVE ME FIGURES ON THAT? 

     "MR. BRUCE.  YES. 

     "SENATOR BIBLE.  ALL RIGHT.  WHAT ARE THEY? 

     "MR. BRUCE.  477,000 ON OR NEAR. 

     "SENATOR BIBLE.  477,000 ON OR NEAR, AND WE STILL DON'T KNOW
WHAT NEAR IS . . . 

     "NOW ON OR NEAR.  BEYOND THE 477,000 INDIANS ON RESERVATIONS
OR

NEAR A RESERVATION, YOU HAVE NO FURTHER JURISDICTION OVER

 INDIANS? 

     "MR. BRUCE.  THAT IS RIGHT. 

"SENATOR BIBLE.  THAT IS YOUR TOTAL RESPONSIBILITY? 

"MR. BRUCE.  THAT IS OUR TOTAL RESPONSIBILITY.  /22/ 

"SENATOR BIBLE.  OF THE MONEY THAT IS IN THIS BUDGET, THE $408

  MILLION, HOW MUCH OF THAT WILL BE EXPENDED WITHIN THE

  RESERVATIONS AND HOW MUCH BEYOND THE RESERVATIONS? 

  "MR. BRUCE.  OUR TOTAL BUDGET IS TO BE SPENT FOR THE BENEFIT OF
RESERVATION INDIANS. 

     "SENATOR BIBLE.  YOU ARE STILL TRIPPING ME UP ON THAT ON OR

  NEAR BUSINESS.  I WISH YOU WOULD DEFINE THAT." 

      (AT THIS POINT THERE WAS AN EXCHANGE AS TO WHETHER BIA
SERVICES

  EXTEND TO INDIANS LIVING IN CHICAGO AND OTHER URBAN AREAS.) 

     "SENATOR BIBLE.  . . . NOW HOW MANY URBAN INDIANS DO WE HAVE? 

     "MR. BRUCE.  WE ARE TALKING ABOUT MORE THAN 250,000. 

     "SENATOR BIBLE.  250,000? 

     "MR. BRUCE.  YES. 

     "SENATOR BIBLE.  THAT IS OVER AND ABOVE THE 477,458? 

     "MR. BRUCE.  THAT IS RIGHT. 

     "SENATOR BIBLE.  AND THESE ARE THE DIFFICULTIES THAT YOU HAVE

  ENCOUNTERED IN ALSO A RATHER LENGTHY RESUME OF SOME OF THE

  SERVICES THAT YOU PERFORM FOR THEM AS TO YOUR RESPONSIBILITY FOR

  THE 250,000. 

     "WHERE DO YOU FIND THESE 250,000 NONRESERVATION INDIANS? 

"MR. BRUCE.  LIVING IN URBAN CITIES--LOS ANGELES, SAN

  FRANCISCO, CHICAGO, ST. LOUIS, CLEVELAND, DENVER, MINNEAPOLIS." 

  SENATE HEARINGS, FISCAL YEAR 1972, 92D CONG., 1ST SESS., 751 -

  756 (1971).  /23/ 

ALTHOUGH MOST OF THESE PASSAGES REFER TO THE BIA'S OVERALL
JURISDICTION AND NOT TO THE SCOPE OF THE GENERAL ASSISTANCE PROGRAM,
THERE IS NOTHING TO INDICATE THAT GENERAL ASSISTANCE WOULD NOT BE MADE
AVAILABLE FOR ALL WITHIN THE SERVICE AREA.  UNLIKE PROGRAMS SUCH AS LAW
ENFORCEMENT AND LAND PROJECTS, GENERAL ASSISTANCE IS NOT TIED
INHERENTLY OR LOGICALLY TO THE PHYSICAL BOUNDARIES OF THE RESERVATION. 
AND PROGRAMS, SUCH AS RELOCATION, THAT EXPLICITLY EXTEND BEYOND THE
RESERVATION ARE NOT LIMITED TO "ON OR NEAR."  SO IT IS DIFFICULT TO
ASCERTAIN PRECISELY WHAT RELEVANCE THE "ON OR NEAR" CATEGORY WOULD HAVE
IF IT DID NOT RELATE TO PROGRAMS SUCH AS GENERAL ASSISTANCE.  NOWHERE
IN THE HEARINGS HAD THE BIA EVER INDICATED WHICH NON-LAND-ORIENTED
PROGRAMS ARE AVAILABLE TO THOSE "ON" AS OPPOSED TO THOSE "ON OR NEAR,"
AND THE ONLY CONCLUSION THAT IS TO BE DRAWN FROM THE REPRESENTATIONS TO
CONGRESS IS THAT THOSE INDIANS WHO FIT THE "ON OR NEAR" CATEGORY ARE
ELIGIBLE FOR ALL BIA SERVICES NOT DIRECTLY TIED TO THE PHYSICAL
BOUNDARIES. 

THUS, THE USUAL PRACTICE OF THE BIA HAS BEEN TO REPRESENT TO
CONGRESS THAT "ON OR NEAR" IS THE EQUIVALENT OF "ON" FOR PURPOSES OF
WELFARE SERVICE ELIGIBILITY, AND THAT THE SUCCESSIVE BUDGET REQUESTS
WERE FOR A UNIVERSE OF INDIANS LIVING "ON OR NEAR" AND NOT JUST FOR
THOSE LIVING DIRECTLY "ON."  IN ADDITION, THE BIA HAS CONTINUALLY
TREATED PERSONS "OFF" THE RESERVATIONS AS NOT "ON OR NEAR."  IN THE
LIGHT OF THIS RATHER CONSISTENT LEGISLATIVE HISTORY, IT IS
UNDERSTANDABLE THAT THE SECRETARY NOW ARGUES THAT GENERAL ASSISTANCE
HAS NOT BEEN AVAILABLE TO THOSE "OFF" THE RESERVATION.  WE DO NOT
ACCEPT THE ARGUMENT, HOWEVER, THAT THE HISTORY INDICATES THAT GENERAL
ASSISTANCE WAS THEREBY RESTRICTED TO THOSE WITHIN THE PHYSICAL
BOUNDARIES.  TO THE CONTRARY, THAT HISTORY CLEARLY SHOWS THAT CONGRESS
WAS LED TO BELIEVE THAT THE PROGRAMS WERE BEING MADE AVAILABLE TO THOSE
UNASSIMILATED NEEDY INDIANS LIVING NEAR THE RESERVATION AS WELL AS TO
THOSE LIVING "ON."  CERTAINLY, A FAIR READING OF THE CONGRESSIONAL
PROCEEDINGS UP TO AND INCLUDING THE FISCAL 1968 HEARING CAN LEAD ONLY
TO THE CONCLUSION THAT INDIANS SITUATED NEAR THE RESERVATION, SUCH AS
THE RUIZES, WERE COVERED BY THE AUTHORIZATION.  /24/ 

D. WHOLLY ASIDE FROM THIS APPROPRIATION SUBCOMMITTEE LEGISLATIVE
HISTORY, THE SECRETARY SUGGESTS THAT CONGRESS, EACH YEAR SINCE 1952,
APPROPRIATED ONLY IN ACCORD WITH THE "ON RESERVATIONS" LIMITATION
CONTAINED IN THE BIA MANUAL.  BY LEGISLATING ANNUALLY "IN THE LIGHT OF
(THIS) CLEAR PROVISION," THE SECRETARY ARGUES, CONGRESS IMPLICITLY
RATIFIED THE BIA POLICY.  THIS ARGUMENT, ALSO, IS NOT CONVINCING.  THE
LIMITATION HAS NOT BEEN PUBLISHED IN THE FEDERAL REGISTER OR IN THE
CODE OF FEDERAL REGULATIONS, AND THERE IS NOTHING IN THE LEGISLATIVE
HISTORY TO SHOW THAT THE MANUAL'S PROVISION WAS BROUGHT TO THE
SUBCOMMITTEES' ATTENTION, LET ALONE TO THE ENTIRE CONGRESS.  TO ASSUME
THAT CONGRESS WAS AWARE OF THIS PROVISION, CONTAINED ONLY IN AN
INTERNALLY CIRCULATED BIA DOCUMENT, WOULD BE MOST STRAINED.  BUT, EVEN
ASSUMING THAT CONGRESS WAS FULLY COGNIZANT OF THE MANUAL'S LIMITATION
WHEN THE 1958 APPROPRIATION WAS MADE, THE LANGUAGE OF GEOGRAPHIC
RESTRICTION IN THE MANUAL MUST BE CONSIDERED IN CONJUNCTION WITH THE
REPRESENTATIONS CONSISTENTLY MADE.  THERE IS NO REASON TO ASSUME THAT
CONGRESS DID NOT EQUATE THE "ON RESERVATIONS" LANGUAGE WITH THE "ON OR
NEAR" CATEGORY THAT CONTINUOUSLY WAS DESCRIBED AS THE SERVICE AREA.  IN
THE LIGHT OF THE MANUAL'S PARTICULAR INCLUSION OF OKLAHOMA AND ALASKA
OFF-RESERVATION INDIANS, IT WOULD SEEM THAT THIS INTERPRETATION OF THE
PROVISION WOULD HAVE BEEN THE LOGICAL ONE FOR ANYONE IN CONGRESS, WHO
IN FACT WAS AWARE OF IT, TO ACCEPT. 

        V 

A. HAVING FOUND THAT THE CONGRESSIONAL APPROPRIATION WAS INTENDED TO
COVER WELFARE SERVICES AT LEAST TO THOSE INDIANS RESIDING "ON OR NEAR"
THE RESERVATION, IT DOES NOT NECESSARILY FOLLOW THAT THE SECRETARY IS
WITHOUT POWER TO CREATE REASONABLE CLASSIFICATIONS AND ELIGIBILITY
REQUIREMENTS IN ORDER TO ALLOCATE THE LIMITED FUNDS AVAILABLE TO HIM
FOR THIS PURPOSE.  SEE DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970);
JEFFERSON V. HACKNEY, 406 U.S. 535 (1972).  THUS, IF THERE WERE ONLY
ENOUGH FUNDS APPROPRIATED TO PROVIDE MEANINGFULLY FOR 10,000 NEEDY
INDIAN BENEFICIARIES AND THE ENTIRE CLASS OF ELIGIBLE BENEFICIARIES
NUMBERED 20,000, IT WOULD BE INCUMBENT UPON THE BIA TO DEVELOP AN
ELIGIBILITY STANDARD TO DEAL WITH THIS PROBLEM, AND THE STANDARD, IF
RATIONAL AND PROPER, MIGHT LEAVE SOME OF THE CLASS OTHERWISE
ENCOMPASSED BY THE APPROPRIATION WITHOUT BENEFITS.  BUT IN SUCH A CASE
THE AGENCY MUST, AT A MINIMUM, LET THE STANDARD BE GENERALLY KNOWN SO
AS TO ASSURE THAT IT IS BEING APPLIED CONSISTENTLY AND SO AS TO AVOID
BOTH THE REALITY AND THE APPEARANCE OF ARBITRARY DENIAL OF BENEFITS TO
POTENTIAL BENEFICIARIES. 

ASSUMING, ARGUENDO, THAT THE SECRETARY RATIONALLY COULD LIMIT THE
"ON OR NEAR" APPROPRIATION TO INCLUDE ONLY THE SMALLER CLASS OF INDIANS
WHO LIVED DIRECTLY "ON" THE RESERVATION PLUS THOSE IN ALASKA AND
OKLAHOMA, THE QUESTION THAT REMAINS IS WHETHER THIS HAS BEEN VALIDLY
ACCOMPLISHED.  THE POWER OF AN ADMINISTRATIVE AGENCY TO ADMINISTER A
CONGRESSIONALLY CREATED AND FUNDED PROGRAM NECESSARILY REQUIRES THE
FORMULATION OF POLICY AND THE MAKING OF RULES TO FILL ANY GAP LEFT. 
IMPLICITLY OR EXPLICITLY, BY CONGRESS.  IN THE AREA OF INDIAN AFFAIRS,
THE EXECUTIVE HAS LONG BEEN EMPOWERED TO PROMULGATE RULES AND POLICIES,
/25/  AND THE POWER HAS BEEN GIVEN EXPLICITLY TO THE SECRETARY AND HIS
DELEGATES AT THE BIA.  /26/  THIS AGENCY POWER TO MAKE RULES THAT
AFFECT SUBSTANTIAL INDIVIDUAL RIGHTS AND OBLIGATIONS CARRIES WITH IT
THE RESPONSIBILITY NOT ONLY TO REMAIN CONSISTENT WITH THE GOVERNING
LEGISLATION, FMC V. SEATRAIN LINES, INC., 411 U.S. 726 (1973); DIXON V.
UNITED STATES, 381 U.S. 68, 74 (1965); BRANNAN V. STARK, 342 U.S. 451
(1952), BUT ALSO TO EMPLOY PROCEDURES THAT CONFORM TO THE LAW.  SEE
NLRB V. WYMAN-GORDON CO., 394 U.S. 759, 764 (1969) (PLURALITY
OPINION).  NO MATTER HOW RATIONAL OR CONSISTENT WITH CONGRESSIONAL
INTENT A PARTICULAR DECISION MIGHT BE, THE DETERMINATION OF ELIGIBILITY
CANNOT BE MADE ON AN AD HOC BASIS BY THE DISPENSER OF THE FUNDS. 

THE ADMINISTRATIVE PROCEDURE ACT WAS ADOPTED TO PROVIDE, INTER ALIA,
THAT ADMINISTRATIVE POLICIES AFFECTING INDIVIDUAL RIGHTS AND
OBLIGATIONS BE PROMULGATED PURSUANT TO CERTAIN STATED PROCEDURES SO AS
TO AVOID THE INHERENTLY ARBITRARY NATURE OF UNPUBLISHED AD HOC
DETERMINATIONS.  SEE GENERALLY S. REP. NO. 752, 79TH CONG., 1ST SESS.,
12 - 13 (1945); H.R. REP. NO. 1980, 79TH CONG., 2D SESS., 21 0 23
(1946).  THAT ACT STATES IN PERTINENT PART: 

"EACH AGENCY SHALL SEPARATELY STATE AND CURRENTLY PUBLISH IN

  THE FEDERAL REGISTER FOR THE GUIDANCE OF THE PUBLIC--

        .          .          .          . 

     (D) SUBSTANTIVE RULES OF GENERAL APPLICABILITY ADOPTED AS

  AUTHORIZED BY LAW, AND STATEMENTS OF GENERAL POLICY OR

  INTERPRETATIONS OF GENERAL APPLICABILITY FORMULATED AND ADOPTED

 BY THE AGENCY."  5 U.S.C. 552(A)(1). 

THE SANCTION ADDED IN 1967 BY PUB. L. 90 - 23, 81 STAT. 54, PROVIDES: 

"EXCEPT TO THE EXTENT THAT A PERSON HAS ACTUAL AND TIMELY NOTICE OF
THE TERMS THEREOF, A PERSON MAY NOT IN ANY MANNER BE REQUIRED TO RESORT
TO, OR BE ADVERSELY AFFECTED BY, A MATTER REQUIRED TO BE PUBLISHED IN
THE FEDERAL REGISTER AND NOT SO PUBLISHED."  IBID.  /27/ 

IN THE INSTANT CASE THE BIA ITSELF HAS RECOGNIZED THE NECESSITY OF
FORMALLY PUBLISHING ITS SUBSTANTIVE POLICIES AND HAS PLACED ITSELF
UNDER THE STRUCTURE OF THE APA PROCEDURES.  THE 1968 INTRODUCTION TO
THE MANUAL READS: 

     "CODE OF FEDERAL REGULATIONS:  DIRECTIVES WHICH RELATE TO THE

  PUBLIC INCLUDING INDIANS, ARE PUBLISHED IN THE FEDERAL REGISTER

  AND CODIFIED IN 25 CODE OF FEDERAL REGULATIONS.(25 CFR).  THESE

  DIRECTIVES INFORM THE PUBLIC OF PRIVILEGES AND BENEFITS

  AVAILABLE; ELIGIBILITY QUALIFICATIONS, REQUIREMENTS AND

  PROCEDURES; AND OF APPEAL RIGHTS AND PROCEDURES.  THEY ARE

  PUBLISHED IN ACCORDANCE WITH RULES AND REGULATIONS ISSUED BY THE

  DIRECTOR OF THE FEDERAL REGISTER AND THE ADMINISTRATIVE PROCEDURE

  ACT AS AMENDED.  . . . 

      "BUREAU OF INDIAN AFFAIRS MANUAL:  POLICIES, PROCEDURES, AND

  INSTRUCTIONS WHICH DO NOT RELATE TO THE PUBLIC BUT ARE REQUIRED

  TO GOVERN THE OPERATIONS OF THE BUREAU ARE PUBLISHED IN THE

  BUREAU OF INDIAN AFFAIRS MANUAL."  O BIAM 1.2. 

UNLIKE NUMEROUS OTHER PROGRAMS AUTHORIZED BY THE SNYDER ACT AND
FUNDED BY THE ANNUAL APPROPRIATIONS, THE BIA HAS CHOSEN NOT TO PUBLISH
ITS ELIGIBILITY REQUIREMENTS FOR GENERAL ASSISTANCE IN THE FEDERAL
REGISTER OR IN THE CFR.  THIS CONTINUES TO THE PRESENT TIME.  /28/  THE
ONLY OFFICIAL MANIFESTATION OF THIS ALLEGED POLICY OF RESTRICTING
GENERAL ASSISTANCE TO THOSE DIRECTLY ON THE RESERVATIONS IS THE
MATERIAL IN THE MANUAL WHICH IS, BY BIA'S OWN ADMISSION, SOLELY AN
INTERNAL-OPERATIONS BROCHURE INTENDED TO COVER POLICIES THAT "DO NOT
RELATE TO THE PUBLIC."  INDEED, AT ORAL ARGUMENT THE GOVERNMENT
CONCEDED THAT FOR THIS TO BE A "REAL LEGISLATIVE RULE," ITSELF ENDOWED
WITH THE FORCE OF LAW, IT SHOULD BE PUBLISHED IN THE FEDERAL REGISTER. 
TR. OF ORAL ARG. 20. 

WHERE THE RIGHTS OF INDIVIDUALS ARE AFFECTED, IT IS INCUMBENT UPON
AGENCIES TO FOLLOW THEIR OWN PROCEDURES.  THIS IS SO EVEN WHERE THE
INTERNAL PROCEDURES ARE POSSIBLY MORE RIGOROUS THAN OTHERWISE WOULD BE
REQUIRED.  SERVICE V. DULLES, 354 U.S. 363, 388 (1957); VITARELLI V.
SEATON, 359 U.S. 535, 539 - 540 (1959).  THE BIA, BY ITS MANUAL, HAS
DECLARED THAT ALL DIRECTIVES THAT "INFORM THE PUBLIC OF PRIVILEGES AND
BENEFITS AVAILABLE" AND OF "ELIGIBILITY REQUIREMENTS" ARE AMONG THOSE
TO BE PUBLISHED.  THE REQUIREMENT THAT, IN ORDER TO RECEIVE GENERAL
ASSISTANCE, AN INDIAN MUST RESIDE DIRECTLY "ON" A RESERVATION IS
CLEARLY AN IMPORTANT SUBSTANTIVE POLICY THAT FITS WITHIN THIS CLASS OF
DIRECTIVES.  BEFORE THE BIA MAY EXTINGUISH THE ENTITLEMENT OF THESE
OTHERWISE ELIGIBLE BENEFICIARIES, IT MUST COMPLY, AT A MINIMUM, WITH
ITS OWN INTERNAL PROCEDURES. 

THE SECRETARY HAS PRESENTED NO REASON WHY THE REQUIREMENTS OF THE
ADMINISTRATIVE PROCEDURE ACT COULD NOT OR SHOULD NOT HAVE BEEN MET. 
CF. SEC V. CHENERY CORP., 332 U.S. 194, 202 (1947).  THE BIA ITSELF HAS
NOT ATTEMPTED TO DEFEND ITS RULE AS A VALID EXERCISE OF ITS
"LEGISLATIVE POWER," BUT RATHER DEPENDS ON THE ARGUMENT THAT CONGRESS
ITSELF HAS NOT APPROPRIATED FUNDS FOR INDIANS NOT DIRECTLY ON THE
RESERVATIONS.  THE CONSCIOUS CHOICE OF THE SECRETARY NOT TO TREAT THIS
EXTREMELY SIGNIFICANT ELIGIBILITY REQUIREMENT AFFECTING RIGHTS OF NEEDY
INDIANS, AS A LEGISLATIVE-TYPE RULE, RENDERS IT INEFFECTIVE SO FAR AS
EXTINGUISHING RIGHTS OF THOSE OTHERWISE WITHIN THE CLASS OF
BENEFICIARIES CONTEMPLATED BY CONGRESS IS CONCERNED. 

THE OVERRIDING DUTY OF OUR FEDERAL GOVERNMENT TO DEAL FAIRLY WITH
INDIANS WHEREVER LOCATED HAS BEEN RECOGNIZED BY THIS COURT ON MANY
OCCASIONS.  SEE, E.G., SEMINOLE NATION V. UNITED STATES, 316 U.S. 286,
296 (1942); BOARD OF COUNTY COMM'RS V. SEBER, 318 U.S. 705 (1943). 
PARTICULARLY HERE, WHERE THE BIA HAS CONTINUALLY REPRESENTED TO
CONGRESS, WHEN SEEKING FUNDS, THAT INDIANS LIVING NEAR RESERVATIONS ARE
WITHIN THE SERVICE AREA.  IT IS ESSENTIAL THAT THE LEGITIMATE
EXPECTATION OF THESE NEEDY INDIANS NOT BE EXTINGUISHED BY WHAT AMOUNTS
TO AN UNPUBLISHED AD HOC DETERMINATION OF THE AGENCY THAT WAS NOT
PROMULGATED IN ACCORDANCE WITH ITS OWN PROCEDURES, TO SAY NOTHING OF
THOSE OF THE ADMINISTRATIVE PROCEDURE ACT.  THE DENIAL OF BENEFITS TO
THESE RESPONDENTS UNDER SUCH CIRCUMSTANCES IS INCONSISTENT WITH "THE
DISTINCTIVE OBLIGATION OF TRUST IMCUMBENT UPON THE GOVERNMENT IN ITS
DEALINGS WITH THESE DEPENDENT AND SOMETIMES EXPLOITED PEOPLE." 
SEMINOLE NATION V. UNITED STATES, 316 U.S., AT 296; SEE SQUIRE V.
CAPOEMAN, 351 U.S. 1 (1956).  BEFORE BENEFITS MAY BE DENIED TO THESE
OTHERWISE ENTITLED INDIANS, THE BIA MUST FIRST PROMULGATE ELIGIBILITY
REQUIREMENTS ACCORDING TO ESTABLISHED PROCEDURES. 

B. EVEN ASSUMING THE LACK OF BINDING EFFECT OF THE BIA POLICY, THE
SECRETARY ARGUES THAT THE RESIDENTIAL RESTRICTION IN THE MANUAL IS A
LONGSTANDING INTERPRETATION OF THE SNYDER ACT BY THE AGENCY BEST SUITED
TO DO THIS, AND THAT DEFERENCE IS DUE ITS INTERPRETATION.  SEE GRIGGS
V. DUKE POWER CO., 401 U.S. 424, 433 - 434 (1971).  THE THRUST OF THIS
ARGUMENT IS NOT THAT THE REGULATION ITSELF HAS CREATED THE "ON" AND
"NEAR"  DISTINCTION, BUT THAT CONGRESS HAS INTENDED TO PROVIDE GENERAL
ASSISTANCE ONLY TO THOSE DIRECTLY ON RESERVATIONS, AND THAT THE
MANUAL'S PROVISION IS SIMPLY AN INTERPRETATION OF CONGRESSIONAL
INTENT.  AS WE HAVE ALREADY NOTED, HOWEVER, THE BIA, THROUGH ITS OWN
PRACTICES AND REPRESENTATIONS, HAS LED CONGRESS TO BELIEVE THAT THESE
APPROPRIATIONS COVERED INDIANS "ON OR NEAR" THE RESERVATIONS, AND IT IS
TOO LATE NOW TO ARGUE THAT THE WORDS "ON RESERVATIONS" IN THE MANUAL
MEAN SOMETHING DIFFERENT FROM "ON OR NEAR" WHEN, IN FACT, THE TWO HAVE
BEEN CONTINUOUSLY EQUATED BY THE BIA TO CONGRESS. 

WE HAVE RECOGNIZED PREVIOUSLY THAT THE WEIGHT OF AN ADMINISTRATIVE
INTERPRETATION WILL DEPEND, AMONG OTHER THINGS, UPON "ITS CONSISTENCY
WITH EARLIER AND LATER PRONOUNCEMENTS" OF AN AGENCY.  SKIDMORE V. SWIFT
& CO., 323 U.S. 134, 140 (1944).  SEE GENERALLY 1 K. DAVIS,
ADMINISTRATIVE LAW TREATISE 5.03-5.06 (1958 ED. AND SUPP. 1970).  IN
THIS INSTANCE THE BIA'S SOMEWHAT INCONSISTENT POSTURE BELIES ITS
PRESENT ASSERTION.  IN ORDER FOR AN AGENCY INTERPRETATION TO BE GRANTED
DEFERENCE, IT MUST BE CONSISTENT WITH THE CONGRESSIONAL PURPOSE. 
ESPINOZA V. FARAH MFG. CO., 414 U.S. 86 (1973); RED LION BROADCASTING
CO. V. FCC, 395 U.S. 367, 381 (1969).  IT IS EVIDENT TO US THAT
CONGRESS DID NOT ITSELF INTEND TO LIMIT ITS AUTHORIZATION TO ONLY THOSE
INDIANS DIRECTLY ON, IN CONTRAST TO THOSE "NEAR," THE RESERVATION, AND
THAT, THEREFORE, THE BIA'S INTERPRETATION MUST FAIL. 

WE EMPHASIZE THAT OUR HOLDING DOES NOT, AS WAS SUGGESTED AT ORAL
ARGUMENT, TR. OF ORAL ARG. 3, 5, AND IN THE BRIEF FOR PETITIONER 2,
MAKE GENERAL ASSISTANCE AVAILABLE TO ALL INDIANS "THROUGHOUT THE
COUNTRY."  EVEN RESPONDENTS DO NOT CLAIM THIS MUCH.  BRIEF FOR
RESPONDENTS 23; TR. OF ORAL ARG. 28.  THE APPROPRIATION, AS WE SEE IT,
WAS FOR INDIANS "ON OR NEAR" THE RESERVATION.  THIS IS BROAD ENOUGH, WE
HOLD, TO INCLUDE THE RUIZES WHO LIVE WHERE THEY FOUND EMPLOYMENT IN AN
INDIAN COMMUNITY ONLY A FEW MILES FROM THEIR RESERVATION, WHO MAINTAIN
THEIR CLOSE ECONOMIC AND SOCIAL TIES WITH THAT RESERVATION, AND WHO ARE
UNASSIMILATED.  THE PARAMETER OF THEIR CLASS WILL BE DETERMINED, TO THE
EXTENT NECESSARY, BY THE DISTRICT COURT ON REMAND OF THE CASE.  WHETHER
OTHER PERSONS QUALIFY FOR GENERAL ASSISTANCE WILL BE LEFT TO CASES THAT
ARISE IN THE FUTURE. 

IN VIEW OF OUR DISPOSITION OF THE STATUTORY ISSUE, WE DO NOT REACH
THE RESPONDENTS' CONSTITUTIONAL ARGUMENTS.  WE INTIMATE NO VIEWS AS TO
THEM. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED AND THE CASE IN
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE PAPAGO INDIAN RESERVATION WAS ESTABLISHED BY EXECUTIVE
ORDERS NOS. 2300 AND 2524, S. DOC. NO. 53, 70TH CONG., 1ST SESS., 1008
AND 1005, PROMULGATED JANUARY 14, 1916, AND FEBRUARY 1, 1917,
RESPECTIVELY.  LATER ADJUSTMENTS THEREIN APPEAR TO HAVE BEEN EFFECTED
BY THE ACT OF JUNE 28, 1926, 44 STAT. 775; BY THE ACT OF FEB. 21, 1931,
46 STAT. 1202; BY THE ACT OF JULY 28, 1937, 50 STAT. 536, 25 U.S.C.
463A-463C; AND BY THE ACT OF JUNE 13, 1939, 53 STAT. 819.  SEE ALSO THE
ACT OF JUNE 18, 1934, 3, 48 STAT. SEE PAPAGO TRIBE V. UNITED STATES, 19
IND. CL. COMM'N 394, 433 - 434 (1968). 

/2/  AJO IS LOCATED WITHIN THE BORDERS OF THE PAPAGO ABORIGINAL
TRIBAL LAND.  THE INDIAN CLAIMS COMMISSION HAS FOUND THAT THIS LAND WAS
TAKEN FROM THE PAPAGOS BY THE UNITED STATES.  PAPAGO TRIBE V. UNITED
STATES, 19 INC. CL. COMM'N, AT 422 0 423, 426. 

/3/  THE FOLLOWING MATERIAL IN THE RECORD INDICATES THE CLOSE TIES
RETAINED BY THE AJO INDIANS WITH THE PAPAGO RESERVATION: 

     "(MANY OF THE PAPAGOS (IN THE INDIAN VILLAGE AT AJO) STILL

  MAINTAIN AND FREQUENTLY VISIT HOMES ON THE RESERVATION.  MANY

  STILL HAVE CATTLE THERE AND SOME EVEN FARM THERE.  DURING THE

  SUMMER MANY WIVES AND CHILDREN SPEND LONG PERIODS OF TIME LIVING

  ON THE RESERVATION.  MANY OF THE MINERS ATTEND RESERVATION DANCES

AND OTHER CEREMONIES, DRIVING TO THE RESERVATION AFTER WORK ENDS

  IN THE AFTERNOON AND RETURNING EARLY THE NEXT MORNING TO AJO. 

  SOME MINERS STILL VOTE IN THE DISTRICT ELECTIONS ON THE

  RESERVATION AND MANY SEEK MEDICAL CARE THERE.  THROUGH THE YEARS

  MANY OF THE MINERS WHO HAVE EITHER BEEN FIRED OR LAID OFF HAVE

  RETURNED TO THE RESERVATION.  THUS EVEN SOME OF THE MOST

  'ACCULTURATED' AJO INDIANS STILL MAINTAIN VERY CLOSE TIES TO THE

  RESERVATION.  . . . 

     "DURING THE PROLONGED STRIKE OF COPPER MINERS THESE TIES WERE

  FREQUENTLY STRENGTHENED AND EVEN EXTENDED.  DURING THIS TIME OF

  CRISIS, THE MEMBERS OF THE INDIAN COMMUNITY OFTEN USED THE

  RESERVATION AS A PLACE OF REFUGE AND OCCASIONALLY AS A SOURCE OF

  FOOD, MONEY, AND MEDICAL CARE."  AFFIDAVIT OF LARRY R. STUCKI,

  SUBMITTED IN SUPPORT OF THE RESPONDENTS'  MOTION FOR SUMMARY

  JUDGMENT.  APP. 84, 86 - 87. 

AS TO THE RUIZES IN PARTICULAR, IT IS SAID: 

     "(THE WHOLE FAMILY RETURNED TO SOUTH KOMELIK (ON THE

  RESERVATION) DURING THE WHOLE MONTH OF AUGUST, 1967, AND . . .

  THEY RETURNED TO SOUTH KOMELIK ONCE OR TWICE A MONTH DURING THE

  REMAINDER OF THE STRIKE, STAYING IN AJO ONLY BECAUSE ONE CHILD,

  MARY ANN, WAS STILL ATTENDING SCHOOL THERE. 

      "RAMON RUIZ . . . STILL MAINTAINED HIS HOME IN SOUTH KOMELIK

  AND . . . HE PLANNED TO RETURN THERE IN 4 YEARS WHEN HE RETIRES. 

  HE HAD NEVER THOUGHT OF AJO AS BEING HIS REAL HOME.  HIS POOR

  COMMAND OF THE ENGLISH LANGUAGE, IN SPITE OF HAVING LIVED IN AJO

  FOR 28 YEARS, TENDED TO CONFIRM THIS.  HIS SON DID MUCH OF THE

  TALKING AND INTERPRETED FOR HIS FATHER FREQUENTLY . . . (WHEN THE

  RUIZES') OTHER SON WAS KILLED IN MILITARY SERVICE IN VIET NAM,

FUNERAL SERVICES WERE HELD BY THE FAMILY IN THE CHURCH IN SELLS

  (ON THE RESERVATION). 

     ". . . THE SIREN SONG OF THE RESERVATION, IN MOST CASES,

  PREVENTS THE COMPLETE SEVERANCE OF THE UMBILICAL CORD TO THE

  HOMELAND OF THESE PEOPLE."  ID., AT 87. 

/4/  MR. RUIZ SO STATED AT THE HEARING REFERRED TO, INFRA, BEFORE
THE BIA AREA DIRECTOR.  APP. 11, 16.  MRS. RUIZ AT THE SAME HEARING
STATED THAT SHE WORKED ABOUT EIGHT HOURS A WEEK FOR $1 AN HOUR.  APP.
19. 

/5/  SEE ARIZ. REV. STAT. ANN. PARA. 46 - 233.A.4 (SUPP. 1971 -
1972) REFLECTING THE AMENDMENT BY LAWS 1962, C. 117, PARA. 23.  SEE
ALSO GRAHAM V. RICHARDSON, 403 U.S. 365 (1971). 

STRIKING WORKERS, HOWEVER, ARE ELIGIBLE FOR THE STATE'S SURPLUS
COMMODITIES DISTRIBUTION PROGRAM.  MR. RUIZ WAS CERTIFIED UNDER THIS
PROGRAM FOR TWO SUCCESSIVE 90 - DAY PERIODS.  APP. 49 - 50. 

/6/ THE MANUAL PROVIDES IN PERTINENT PART: 

"3.1 GENERAL ASSISTANCE. 

     ".1 PURPOSE.  THE PURPOSE OF THE GENERAL ASSISTANCE PROGRAM IS

  TO PROVIDE NECESSARY FINANCIAL ASSISTANCE TO NEEDY INDIAN

  FAMILIES AND PERSONS LIVING ON RESERVATIONS UNDER THE

  JURISDICTION OF THIS BUREAU AND IN JURISDICTIONS UNDER THE BUREAU

  OF INDIAN AFFAIRS IN ALASKA AND OKLAHOMA. 

        .          .          .          . 

     "A ELIGIBILITY CONDITIONS. 

     "A.  RESIDENCE.  ELIGIBILITY FOR GENERAL ASSISTANCE IS LIMITED

  TO INDIANS LIVING ON RESERVATIONS AND IN JURISDICTIONS UNDER THE

BUREAU OF INDIAN AFFAIRS IN ALASKA AND OKLAHOMA." 

/7/  THE SNYDER ACT READS IN FULL AS FOLLOWS: 

     "THE BUREAU OF INDIAN AFFAIRS, UNDER THE SUPERVISION OF THE

  SECRETARY OF THE INTERIOR, SHALL DIRECT, SUPERVISE, AND EXPEND

  SUCH MONEYS AS CONGRESS MAY FROM TIME TO TIME APPROPRIATE, FOR

  THE BENEFIT, CARE, AND ASSISTANCE OF THE INDIANS THROUGHOUT THE

  UNITED STATES FOR THE FOLLOWING PURPOSES: 

"GENERAL SUPPORT AND CIVILIZATION, INCLUDING EDUCATION. 

    "FOR RELIEF OF DISTRESS AND CONSERVATION OF HEALTH. 

"FOR INDUSTRIAL ASSISTANCE AND ADVANCEMENT AND GENERAL ADMINISTRATION
OF INDIAN PROPERTY. 

     "FOR EXTENSION, IMPROVEMENT, OPERATION, AND MAINTENANCE OF

  EXISTING INDIAN IRRIGATION SYSTEMS AND FOR DEVELOPMENT OF WATER

  SUPPLIES. 

     "FOR THE ENLARGEMENT, EXTENSION, IMPROVEMENT AND REPAIR OF THE

  BUILDINGS AND GROUNDS OF EXISTING PLANTS AND PROJECTS. 

     "FOR THE EMPLOYMENT OF INSPECTORS, SUPERVISORS,

  SUPERINTENDENTS, CLERKS, FIELD MATRONS, FARMERS, PHYSICIANS,

  INDIAN POLICE, INDIAN JUDGES, AND OTHER EMPLOYEES. 

     "FOR THE SUPPRESSION OF TRAFFIC IN INTOXICATING LIQUOR AND
DELETERIOUS DRUGS. 

     "FOR THE PURCHASE OF HORSE-DRAWN AND MOTOR-PROPELLED

  PASSENGER-CARRYING VEHICLES FOR OFFICIAL USE. 

     "AND FOR GENERAL AND INCIDENTAL EXPENSES IN CONNECTION WITH
THE

  ADMINISTRATION OF INDIAN AFFAIRS." 

/8/  SEE, FOR EXAMPLE, THE APPROPRIATIONS ACT FOR FISCAL 1967, PUB.
L. 89 - 435, 80 STAT. 170, 171 (1966); THE ACT FOR FISCAL 1966, PUB. L.
89 - 52, 79 STAT. 174, 175 (1965); AND THE ACT FOR FISCAL 1965, PUB. L.
88 - 356, 78 STAT. 273, 274 (1964). 

/9/  SEE THE APPROPRIATIONS ACT FOR FISCAL 1969, PUB. L. 90 - 425,
82 STAT. 425, 427 (1968); THE ACT FOR FISCAL 1970, PUB. L. 91 - 98, 83
STAT. 147, 148 (1969); THE ACT FOR FISCAL 1971, PUB. L. 91 - 361, 84
STAT. 669, 670 (1970); THE ACT FOR FISCAL 1972, PUB. L. 92 - 76, 85
STAT, 229, 230 (1971); THE ACT FOR FISCAL 1973, PUB. L. 92 - 369, 86
STAT. 508, 509 (1972); AND THE ACT FOR FISCAL 1974, PUB. L. 93 - 120,
87 STAT. 429, 430 - 431 (1973). 

/10/  A CRITIC OF THE ACT (WHO ALSO REPRESENTED THE RUIZES IN THE
ADMINISTRATIVE PROCEEDINGS) DESCRIBES IT AS FOLLOWS:  "THE SNYDER ACT
IS A FAMILIAR AND SOMEWHAT DISTRESSING OCCURRENCE IN THE HISTORY OF
INDIAN AFFAIRS.  AS IN OTHER INSTANCES, CONGRESS ENACTED A VERY GENERAL
MEASURE AND LEFT THE REST UP TO THE SECRETARY OF THE INTERIOR AND THE
BIA.  THE RESULT IS THAT THE STRUCTURE OF THE WELFARE SYSTEM IS THE
BIA'S OWN CREATION.  THE REGULATORY SCHEME IS CONTAINED IN THE
DEPARTMENTAL MANUAL WHICH REMAINS INACCESSIBLE EXCEPT TO A FEW SOCIAL
WORKERS AND PERSISTENT ATTORNEYS"  (FOOTNOTE OMITTED).  WOLF, NEEDED:
A SYSTEM OF INCOME MAINTENANCE FOR INDIANS, 10 ARIZ. L. REV. 597, 607 -
608 (1968). 

/11/  SEE, FOR EXAMPLE, 42 U.S.C. 1352(B)(2).  AN INDIAN THUS IS
ENTITLED TO SOCIAL SECURITY AND STATE WELFARE BENEFITS EQUALLY WITH
OTHER CITIZENS OF THE STATE.  STATE EX. REL. WILLIAMS V. KAMP, 106
MONT. 444, 449, 78 P.2D 585, 587 (1938); U.S. DEPT. OF THE INTERIOR,
FEDERAL INDIAN LAU 287, 516 (1958); WOLF, 10 ARIZ. L. REV., AT 599. 

/12/  HEARINGS ON THE DEPARTMENT OF THE INTERIOR AND/OR RELATED
AGENCIES APPROPRIATIONS BEFORE SUBCOMMITTEES OF THE SENATE OR HOUSE
COMMITTEE ON APPROPRIATIONS WILL BE HEREINAFTER MERELY IDENTIFIED AS TO
BRANCH OF CONGRESS, FISCAL YEAR, AND NUMBER AND SESSION OF CONGRESS. 

/12A/ THE HEARINGS FOR THE PRECEDING FOUR YEARS DISCLOSE IDENTICALLY
WORDED REQUESTS.  HOUSE HEARINGS, FISCAL YEAR 1967, 89TH CONG., 2D
SESS., 255 (1966), AND SENATE HEARINGS, FISCAL YEAR 1967, 89TH CONG.,
2D SESS., 267 (1966); HOUSE HEARINGS, FISCAL YEAR 1966, 89TH CONG., 1ST
SESS., 747 - 748 (1965), AND SENATE HEARINGS, FISCAL YEAR 1966, 89TH
CONG., 1ST SESS., 653 (1965); HOUSE HEARINGS, FISCAL YEAR 1965, 89TH
CONG., 2D SESS., 775 (1964); SENATE HEARINGS, FISCAL YEAR 1965, 88TH
CONG., 2D SESS., 148 (1964); HOUSE HEARINGS, FISCAL YEAR 1964, 88TH
CONG., 1ST SESS., 844 (1963), AND SENATE HEARINGS, FISCAL YEAR 1964,
88TH CONG., 1ST SESS., 70 (1963). 

/13/  THE BIA'S LIMITATION IN PRACTICE SURFACED AT MANY HEARINGS. 
SEE, FOR EXAMPLE, THE TESTIMONY OF ASSISTANT COMMISSIONER GIFFORD IN
1959: 

     "I BELIEVE THE QUESTION COMES UP CONCERNING INDIANS LIVING OFF

  THE RESERVATION AND WHO ARE IN NEED NOT FOR THESE CATEGORIES BUT

  FOR OTHER TYPES OF ASSISTANCE.  IN MANY CASES THE STATES AND

  COUNTIES SAY THAT THOSE INDIANS OUGHT TO BE THE RESPONSIBILITY OF

  THE BUREAU OF INDIAN AFFAIRS; THAT THEY DO NOT HAVE SUFFICIENT

FUNDS TO TAKE CARE OF THEM.  WE HAVE NEVER INCLUDED IN OUR

 REQUEST FOR WELFARE APPROPRIATIONS FUNDS TO TAKE CARE OF THE

  NEEDS OF THOSE INDIANS LIVING OFF THE RESERVATION."  HOUSE

  HEARINGS, FISCAL YEAR 1960, 86TH CONG., 1ST SESS., 801 (1959)

  (EMPHASIS SUPPLIED).  SEE ALSO SENATE HEARINGS, FISCAL YEAR 1959,

  85TH CONG., 2D SESS., 291 (1958); SENATE HEARINGS, FISCAL YEAR

  1952, 82D CONG., 1ST SESS., 372 (1951); SENATE HEARINGS, FISCAL

  YEAR 1950, 81ST CONG., 1ST SESS., 592 (1949); SENATE HEARINGS,

  FISCAL YEAR 1948, 80TH CONG., 1ST SESS., 598 - 599 (1947); SENATE

  HEARINGS, FISCAL YEAR 1942, 77TH CONG., 1ST SESS., 160 - 162, 465

  - 466 (1941). 

/14/  THE BILLS REFERRED TO WERE H.R. 9621, 87TH CONG., 2D SESS.
(1962), AND H.R. 6279, 88TH CONG., 1ST SESS. (1963).  EACH PROVIDED
THAT BENEFITS WOULD BE AVAILABLE TO ALL INDIANS IN CERTAIN NAMED
STATES, AND THAT THE GOVERNMENT WOULD REIMBURSE THE STATE FOR A
PERCENTAGE OF THE LATTER'S CONTRIBUTION UNDER THE SEVERAL CATEGORICAL
ASSISTANCE PROGRAMS.  THE FAILURE OF THESE BILLS CAN BE ASCRIBED JUST
AS EASILY, OF COURSE, TO THE RATHER ARBITRARY SELECTION OF STATES, TO
THE SPECIFIC PERCENTAGE DESIGNATED, OR TO A RELUCTANCE TO PROVIDE FOR
ALL INDIANS (RURAL OR URBAN, ASSIMILATED OR NONASSIMILATED), AS TO THE
INCREASE OVER THE LESSER GROUP THEN BEING SERVICED.  SEE UNITED STATES
V. WISE, 370 U.S. 405, 411 (1962); ORDER OF RAILWAY CONDUCTORS V. SWAN,
329 U.S. 520, 529 (1947). 

/15/ SEE, FOR EXAMPLE, SENATE HEARINGS, FISCAL YEAR 1967, 89TH
CONG., 2D SESS., 302 (1966) (STATEMENT OF COMMISSIONER NASH); SENATE
HEARINGS, FISCAL YEAR 1959, 85TH CONG., 2D SESS., 293 (1958) (STATEMENT
OF DEPUTY COMMISSIONER GREENWOOD). 

/16/  HOUSE HEARINGS, FISCAL YEAR 1961, 86TH CONG., 2D SESS., 508
510 (1960) (STATEMENT OF COMMISSIONER EMMONS); TR. OF ORAL ARG. 15. 

/17/  SENATE HEARINGS, FISCAL YEAR 1967, 89TH CONG., 2D SESS., 298 -

  301 (1966). 

/18/  IDENTICAL LANGUAGE, APART FROM THE POPULATION FIGURES,
APPEARED IN LATER BIA BUDGET REQUESTS.  SEE, FOR EXAMPLE, HOUSE
HEARINGS, FISCAL YEAR 1962, 87TH CONG., 1ST SESS., 116 (1961). 

/19/  THE NEXT YEAR THE COMMISSIONER MADE THE FOLLOWING STATEMENT AS
TO THE SCOPE OF THE BIA SERVICE AREA: 

"WE HAVE A NEED FOR SERVICES FOR 380,000 PEOPLE.  THIS INCLUDES
THOSE WHO ARE LIVING DIRECTLY ON THE RESERVATIONS, AND THOSE WHO ARE
LIVING VERY CLOSE, SO THAT THE WAY IN WHICH THEY LIVE AFFECTS
RESERVATIONS PROGRAMS.  THEY MOVE BACK AND FORTH, ET CETERA.  WE CALL
THIS OUR 'FEDERAL SERVICE TO INDIAN POPULATION' AND IT IS LARGER THIS
YEAR THAN LAST."  HOUSE HEARINGS, FISCAL YEAR 1964, 88TH CONG., 1ST
SESS., 889 (1963) (EMPHASIS SUPPLIED). 

/20/  IN THE FORMAL BUDGET PRESENTED FOR FISCAL 1966 THE
COMMISSIONER INTRODUCED HIS STATEMENT WITH THE FOLLOWING
REPRESENTATION: 

     "WE ARE A MODERN SERVICE BUREAU, SERVING ABOUT 380,000 INDIAN

  PERSONS AND ALASKA NATIVES WHO LIVE ON OR NEAR RESERVATIONS IN 25

  STATES.  THE SERVICE WE PERFORM ARE BASICALLY OF THREE TYPES." 

SENATE HEARINGS, FISCAL YEAR 1966, 89TH CONG., 1ST SESS., 637

  (1965) (EMPHASIS SUPPLIED). 

THE THIRD TYPE THERE DESCRIBED CONSISTED OF WELFARE PROGRAMS. 

/21/  THE FOLLOWING YEAR THE COMMISSIONER INTRODUCED HIS BUDGET
REQUEST WITH THIS STATEMENT: 

     "WE ARE A MODERN SERVICE BUREAU, SERVING AS MANY AS 400,000

  INDIANS AND ALASKAN NATIVES WHO LIVE ON OR NEAR

  RESERVATIONS--PEOPLE WHO FIND THEMSELVES ISOLATED FROM THE

  MAINSTREAM OF AMERICAN LIFE--EXISTING IN POVERTY.  IN KEEPING

  WITH THE GENERAL GOVERNMENTAL POLICY OF ATTACKING THE CAUSES OF

  POVERTY AND THE LACK OF SALABLE SKILLS, THE OBJECTIVE OF THE

  BUREAU OF INDIAN AFFAIRS IS TO COORDINATE FEDERAL PROGRAMS AND

  PROGRAMS OF STATE AND LOCAL AGENCIES WHICH WILL IMPROVE

  EDUCATIONAL, ECONOMIC, SOCIAL AND POLITICAL OPPORTUNITIES OF

  INDIANS."  HOUSE HEARINGS, FISCAL YEAR 1969, 90TH CONG., 2D

  SESS., 575 (1968); SENATE HEARINGS, FISCAL YEAR 1969, 90TH CONG.,

2D SESS., 368 (1968) (EMPHASIS SUPPLIED). 

/22/  THE FOLLOWING ADDITIONAL INFORMATION WAS SUPPLIED: 

"POPULATION DATA 

     "THE STATISTICAL FIGURE GIVEN FOR INDIANS LIVING ON AND

  ADJACENT TO RESERVATIONS IS BASED UPON RESIDENCE, AND INCLUDES

  THE FOLLOWING GROUPS.  THE FIGURES ARE FOR MARCH 1970: 

      "(A) 306,900 INDIANS RESIDENT WITHIN FEDERAL RESERVATION

  BOUNDARIES, EXCLUDING ALASKA AND OKLAHOMA, WHICH ARE DISCUSSED

  BELOW. 

     "(B) 32,600 INDIANS RESIDENT NEARBY, WHO MAY RECEIVE SERVICES

  BECAUSE OF THEIR PROXIMITY AND MOBILITY.  FOR EXAMPLE, INDIANS

  WORKING IN NEARBY TOWNS FREQUENTLY MAINTAIN CLOSE CONTACT WITH

  RESERVATION PEOPLE AND AFFAIRS; THEY MAY VISIT THE RESERVATION OR

RETURN TEMPORARILY OR PERMANTENTLY.  OTHER INDIANS LIVE ON PUBLIC

  DOMAIN ALLOTMENTS OUTSIDE THE RESERVATION BOUNDARIES.  THE

  DISTANCE OF SUCH PLACES IS NOT SPELLED OUT, BUT DEPENDS ON THE

  EXTENT OF CONTACT.  DISTANT MEMBERS OF THE TRIBE ARE NOT COUNTED,

  ALTHOUGH THEY MAY BE CARRIED ON THE TRIBAL ROLL OR THE TRIBAL

  CENSUS.  SEE ALSO COMMENTS BELOW ON THE NAVAJO AREA. 

     "(C) 81,200 INDIANS RESIDENT IN FORMER RESERVATION AREAS OF

  OKLAHOMA.  (THIS INCLUDES OSAGE, WHICH HAS SOME ATTRIBUTES OF A

  RESERVATION.) 

     "(D) 56,800 ALASKA NATIVES RESIDENT IN ALASKA.  THIS INCLUDES

  ALEUTS, AND ESKIMOS AS WELL AS INDIANS."  SENATE HEARINGS, FISCAL

  YEAR 1972, 92D CONG., 1ST SESS., 752 - 753 (1971). 

SEE N. 3, SUPRA. 

/23/  BEGINNING WITH THE FISCAL 1973 HEARINGS, THERE APPEARED A WIDE
OUTPOURING FOR BIA ASSISTANCE FOR URBAN INDIANS.  IN THE APPROPRIATIONS
COMMITTEE REPORT TO THE SENATE FOR FISCAL 1973, SUBMITTED BY SENATOR
BIBLE, THE FOLLOWING LANGUAGE APPEARS, INDICATING THE SENATE'S EARLIER
UNDERSTANDING THAT ALTHOUGH THE BIA PROGRAM DID NOT COVER URBAN
INDIANS, IT DID COVER THOSE "ON OR NEAR" THE RESERVATIONS: 

     "THE COMMITTEE DIRECTS THAT THE SECRETARY PREPARE A PLAN TO

  ASSURE BUREAU OF INDIAN AFFAIRS TYPE SERVICES TO ALL INDIANS IN

  THE UNITED STATES--RATHER THAN JUST TO THOSE LIVING 'ON OR NEAR

  RESERVATIONS.'"  S. REP. NO. 92 - 921, P. 6 (1972). 

/24/  THIS CONCEPTION AS TO THE BIA'S JURISDICTION SEEMS NOT TO HAVE
BEEN LIMITED TO CONGRESS.  CURIOUSLY ENOUGH, IN THE APPLICATION, FILED
WITH THIS COURT, FOR AN EXTENSION OF TIME WITHIN WHICH TO FILE THE
PETITION FOR CERTIORARI IN THIS CASE, THE SOLICITOR GENERAL DESCRIBED
THE LITIGATION: 

     "THE COURT OF APPEALS HAS HELD IN THIS CASE THAT INDIAN
WELFARE

  BENEFITS ADMINISTERED BY THE DEPARTMENT OF THE INTERIOR UNDER THE

  SNYDER ACT OF 1921, 25 U.S.C. 13, MUST BE PROVIDED NOT ONLY TO

  INDIANS LIVING ON OR NEAR RESERVATIONS, AS HAS BEEN THE PRACTICE

  OF THE DEPARTMENT OF THE INTERIOR FOR MANY YEARS, BUT MUST ALSO

BE MADE AVAILABLE TO INDIANS RESIDING ANYWHERE IN THE COUNTRY"

  (EMPHASIS SUPPLIED). 

/25/  "THE PRESIDENT MAY PRESCRIBE SUCH REGULATIONS AS HE MAY THINK
FIT FOR CARRYING INTO EFFECT THE VARIOUS PROVISIONS OF ANY ACT RELATING
TO INDIAN AFFAIRS, AND FOR THE SETTLEMENT OF THE ACCOUNTS OF INDIAN
AFFAIRS."  25 U.S.C. 9.  THIS PROVISION RELATES BACK TO THE ACT OF JUNE
30, 1834, 17, 4 STAT. 738. 

/26/  "THE COMMISSIONER OF INDIAN AFFAIRS SHALL, UNDER THE DIRECTION
OF THE SECRETARY OF THE INTERIOR, AND AGREEABLY TO SUCH REGULATIONS AS
THE PRESIDENT MAY PRESCRIBE, HAVE THE MANAGEMENT OF ALL INDIAN AFFAIRS
AND OF ALL MATTERS ARISING OUT OF INDIAN RELATIONS."  25 U.S.C. 2. 
THIS RELATED BACK TO THE ACT OF JULY 9, 1832, 1, 4 STAT. 564. 

THE SNYDER ACT PROVIDES: 

     "THE BUREAU OF INDIAN AFFAIRS, UNDER THE SUPERVISION OF THE

  SECRETARY OF THE INTERIOR, SHALL DIRECT, SUPERVISE, AND EXPEND

  SUCH MONEYS AS CONGRESS MAY FROM TIME TO TIME APPROPRIATE.  . .

  ."  25 U.S.C. 13. 

/27/  THE HOUSE REPORT ACCOMPANYING THIS PROVISION STATED: 

     "AN ADDED INCENTIVE FOR AGENCIES TO PUBLISH THE NECESSARY

  DETAILS ABOUT THEIR OFFICIAL ACTIVITIES IN THE FEDERAL REGISTER

  IS THE PROVISION THAT NO PERSON SHALL BE 'ADVERSELY AFFECTED' BY

  MATERIAL REQUIRED TO BE PUBLISHED--OR INCORPORATED BY

  REFERENCE--IN THE FEDERAL REGISTER BUT NOT SO PUBLISHED."  H.R.

  REP. NO. 1497, 89TH CONG., 2D SESS., 7 (1966).  SEE S. REP. NO.

  813, 89TH CONG., 1ST SESS., 6 (1965); S. REP. NO. 1219, 88TH

  CONG., 2D SESS., 12 (1964). 

/28/  TITLE 25 CFR (1973), ON THE SUBJECT OF "INDIANS," CONTAINS
REGULATIONS AND SETS FORTH ELIGIBILITY REQUIREMENTS FOR LAW-AND-ORDER
PROGRAMS (PT. 11); CARE OF INDIAN CHILDREN IN CONTRACT SCHOOLS (PT.
22); FEDERAL SCHOOLS FOR INDIANS (PT. 31); ADMINISTRATION OF
EDUCATIONAL LOANS, GRANTS AND OTHER ASSISTANCE FOR HIGHER EDUCATION
(PT. 32); ENROLLMENT OF INDIANS IN PUBLIC SCHOOLS (PT. 33);
ADMINISTRATION OF A PROGRAM OF VOCATIONAL TRAINING FOR ADULT INDIANS
(PT. 34); AND GENERAL CREDIT TO INDIANS (PT. 91).  THE ONLY REFERENCE
TO WELFARE ACTIVITIES IS SUBCHAPTER D, ENTITLED "SOCIAL WELFARE" AND
COMPRISING PTS.  21 AND 22.  PART 21 RELATES TO THE PROGRAM UNDER WHICH
THE COMMISSIONER "MAY NEGOTIATE WITH STATE, TERRITORY, COUNTY OR OTHER
FEDERAL WELFARE AGENCIES FOR SUCH AGENCIES TO PROVIDE WELFARE SERVICES
AS CONTEMPLATED" BY 25 U.S.C. 452.  THE REGULATIONS STATE THAT THE
PROGRAM APPLIES TO "INDIANS RESIDING WITHIN A PARTICULAR STATE WITHIN
THE EXTERIOR BOUNDARIES OF INDIAN RESERVATIONS UNDER THE JURISDICTION
OF THE BUREAU OF INDIAN AFFAIRS OR ON TRUST OR RESTRICTED LANDS UNDER
THE JURISDICTION OF THE BUREAU OF INDIAN AFFAIRS."  25 CFR 21.1
(1973).  BUT SEE 25 U.S.C. 309 AND 25 CFR 34.3, WHERE VOCATIONAL
TRAINING FOR ADULT INDIANS IS ALSO MADE AVAILABLE "TO ADDITIONAL
INDIANS WHO RESIDE NEAR RESERVATIONS IN THE DISCRETION OF THE SECRETARY
OF THE INTERIOR WHEN THE FAILURE TO PROVIDE THE SERVICES WOULD HAVE A
DIRECT EFFECT UPON BUREAU PROGRAMS WITHIN THE RESERVATION BOUNDARIES"
(EMPHASIS SUPPLIED).  SEE ALSO 25 CFR 31.1. 

THE PHRASE "WITHIN THE EXTERIOR BOUNDARIES OF INDIAN RESERVATIONS
UNDER THE JURISDICTION OF THE BUREAU OF INDIAN AFFAIRS," WHEN READ IN
CONJUNCTION WITH THE BIA'S DECLARED JURISDICTION BEFORE CONGRESS, WOULD
SEEM TO INCLUDE INDIANS LIVING "NEAR" THE RESERVATIONS.  IN ANY EVENT,
THE CITED REGULATIONS DO NOT DEAL WITH THE GENERAL ASSISTANCE PROGRAM. 
THERE IS NOTHING IN THE CODE INDICATING THAT A GENERAL ASSISTANCE
PROGRAM EXISTS, TO SAY NOTHING OF THE ABSENCE OF ELIGIBILITY CRITERIA. 

HARRY R. SACHSE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL JOHNSON,
EDMUND B. CLARK, AND CARL STRASS. 

WINTON D. WOODS, JR., ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS LINDSAY E. BREW. 
..END :










RENEGOTIATION BOARD V. BANNERCRAFT CLOTHING CO., 415 U.S. 1 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 72 - 822.  ARGUED OCTOBER 17, 1973--DECIDED FEBRUARY 19,

           1974; 151 U.S. APP. D.C. 174, 466 F.2D 345, REVERSED AND

           REMANDED. 


    RESPONDENTS, WHOSE PROFITS ON DEFENSE CONTRACTS ARE UNDERGOING

  RENEGOTIATION PURSUANT TO THE RENEGOTIATION ACT OF 1951, SUED IN

  THE DISTRICT COURT UNDER THE FREEDOM OF INFORMATION ACT (FOIA) TO

  ENJOIN PETITIONER FROM WITHHOLDING DOCUMENTS THAT RESPONDENTS HAD

  REQUESTED AND FROM CONDUCTING ANY FURTHER RENEGOTIATION

  PROCEEDINGS UNTIL THE DOCUMENTS WERE PRODUCED.  THE DISTRICT

  COURT IN EACH CASE GRANTED INJUNCTIVE RELIEF.  THE CASES WERE

  CONSOLIDATED ON APPEAL AND THE COURT OF APPEALS AFFIRMED, HOLDING

THAT THE DISTRICT COURT HAD JURISDICTION UNDER THE FOIA TO ENJOIN

  ADMINISTRATIVE PROCEEDINGS BEFORE PETITIONER BOARD AND TO ORDER

  PRODUCTION OF THE DOCUMENTS.  THOUGH NOTING THAT THE FOIA NOWHERE

  AUTHORIZES INJUNCTIONS OF AGENCY PROCEEDINGS, THE COURT CONCLUDED

  THAT CONGRESS INTENDED TO CONFER BROAD EQUITABLE JURISDICTION

  UPON THE DISTRICT COURTS AND THAT "TEMPORARY STAYS OF PENDING

  ADMINISTRATIVE PROCEDURES MAY BE NECESSARY ON OCCASION TO ENFORCE

(FOIA) POLICY."  THE COURT ALSO CONCLUDED THAT CONTRACTORS HAD TO

  EXHAUST THEIR ADMINISTRATIVE REMEDIES ONLY UNDER THE FOIA BUT NOT

  UNDER THE RENEGOTIATION ACT BEFORE THEY WERE ABLE TO REQUEST

  INJUNCTIVE RELIEF AGAINST RENEGOTIATION PROCEEDINGS AND THAT

  CONTRACTORS' REMEDIES BEFORE THE RENEGOTIATION BOARD AND DE NOVO

  PROCEEDINGS IN THE COURT OF CLAIMS AS PROVIDED UNDER THE

  RENEGOTIATION ACT WERE INADEQUATE TO PREVENT IRREPARABLE HARM. 

  PETITIONER CONTENDS THAT THE FOIA'S PROVISION IN 5 U.S.C.

  522(A)(3) FOR ENJOINING AN AGENCY FROM WITHHOLDING ITS RECORDS

  AND ORDERING THE PRODUCTION OF RECORDS IMPROPERLY WITHHELD FROM A

 COMPLAINANT IS THE SOLE METHOD OF JUDICIAL ENFORCEMENT.  HELD: 

     1.  THE FOIA DOES NOT LIMIT THE INHERENT POWERS OF AN EQUITY

  COURT TO GRANT RELIEF, AS IS MANIFEST FROM THE BROAD STATUTORY

  LANGUAGE THAT CONGRESS USED, WITH ITS EMPHASIS ON DISCLOSURE, ITS

  CAREFULLY DELINEATED EXEMPTIONS, AND THE FACT THAT 552(A) VESTS

  EQUITABLE JURISDICTION IN THE DISTRICT COURTS.  PP. 16 - 20. 

     2.  IN A RENEGOTIATION CASE A CONTRACTOR MUST PURSUE ITS

  ADMINISTRATIVE REMEDY UNDER THE RENEGOTIATION ACT AND CANNOT

  THROUGH RESORT TO PRELIMINARY LITIGATION OVER AN FOIA CLAIM

OBTAIN JUDICIAL INTERFERENCE WITH THE PROCEDURES SET FORTH IN THE

  RENEGOTIATION ACT.  AIRCRAFT & DIESEL EQUIPMENT CORP. V. HIRSCH,

  331 U.S. 752; LICHTER V. UNITED STATES, 334 U.S. 742; MACAULEY V.

  WATERMAN S. S. CORP., 327 U.S. 540.  PP. 20 - 25. 

     (A) IT WOULD CONTRAVENE THE ACT'S LEGISLATIVE PURPOSE IF

  JUDICIAL REVIEW BY WAY OF INJUNCTIVE RELIEF UNDER FOIA WERE

  ALLOWED TO INTERRUPT THE PROCESS OF BARGAINING THAT INHERES IN

  THE STATUTORY RENEGOTIATION SCHEME AND WOULD DELAY THE

  GOVERNMENT'S RECOVERY OF EXCESSIVE PROFITS.  PP. 20 - 23.  (B)

  THE CONTRACTOR THROUGH A DE NOVO PROCEEDINGS IN THE COURT OF

  CLAIMS, WHERE DISCOVERY PROCEDURES ARE AVAILABLE, IS NOT LIMITED

  IN EXERCISING ITS NORMAL LITIGATION RIGHTS.  PP. 23 - 24. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT IN WHICH BURGER, C.
J., AND BRENNAN, WHITE, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED
A DISSENTING OPINION, IN WHICH STEWART, MARSHALL, AND POWELL, JJ.,
JOINED, POST, P. 26. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THREE CASES, CONSOLIDATED FOR HEARING IN THE COURT BELOW, RAISE THE 

ISSUE OF THE EFFECT OF THE FREEDOM OF INFORMATION ACT (FOIA), 5
U.S.C. 552, UPON PROCEEDINGS PENDING UNDER THE RENEGOTIATION ACT OF
1951, C. 15, 65 STAT. 7, AS AMENDED, 50 U.S.C. APP. 1211 ET SEQ.  IN
PARTICULAR, THEY CONCERN THE JURISDICTION OF A FEDERAL DISTRICT COURT
TO ENJOIN THE RENEGOTIATION PROCESS UNTIL AN FOIA CLAIM IS RESOLVED. 

        I 

THE THREE RESPONDENTS, BANNERCRAFT CLOTHING COMPANY, INC., ASTRO
COMMUNICATION LABORATORY, A DIVISION OF AIKEN INDUSTRIES, INC., AND
DAVID B. LILLY CO., INC., SUCCESSOR TO DELAWARE FASTENER CORPORATION,
ALL POSSESSED NATIONAL DEFENSE CONTRACTS WITH A "DEPARTMENT" OF THE
UNITED STATES, AS DEFINED IN 103(A) OF THE RENEGOTIATION ACT, 50 U.S.C.
APP. 1213(A).  THESE AGREEMENTS, THEREFORE, UNDER 102 OF THAT ACT, 50
U.S.C. APP. 1212, WERE 

SUBJECT TO RENEGOTIATION. 

A. BANNERCRAFT.  IN 1966 AND 1967, THIS RESPONDENT MANUFACTURED
UNIFORMS AT A PLANT IN PHILADELPHIA.  ITS FISCAL YEAR WAS THE CALENDAR
YEAR.  BECAUSE MOST OF ITS PRODUCTION WAS SUBJECT TO RENEGOTIATION, THE
COMPANY, FOR EACH OF THE TWO YEARS, TIMELY FILED WITH THE RENEGOTIATION
BOARD THE FINANCIAL STATEMENT REQUIRED UNDER 105(E)(1) OF THE ACT, 50
U.S.C. APP. 1215(E)(1).  REPRESENTATIVES OF THE EASTERN REGIONAL
RENEGOTIATION 

BOARD THEN REVIEWED BANNERCRAFT'S OPERATIONS AND CONFERRED WITH ITS
PRESIDENT.  ON FEBRUARY 20, 1970, THE REGIONAL BOARD, BY LETTER,
ADVISED THE CONTRACTOR THAT IT WAS RECOMMENDING THAT BANNERCRAFT IN
1967 HAD REALIZED EXCESSIVE PROFITS IN THE AMOUNT OF $1,400,000,
SUBJECT TO THE USUAL ADJUSTMENT FOR STATE TAXES MEASURED BY INCOME AND
FOR ANY TAX CREDIT TO WHICH THE CONTRACTORS WAS ENTITLED UNDER 1481 OF
THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. 1481.  /1/ 

BANNERCRAFT PROMPTLY REQUESTED THAT IT BE FURNISHED, PURSUANT TO 32
CFR 1477.3 (1970), /2/  WITH A "WRITTEN SUMMARY OF THE FACTS AND
REASONS" UPON WHICH THE DETERMINATION WAS BASED.  IT ASSERTED, HOWEVER,
THAT "IT IS NOT POSSIBLE TO STATE (AS THE REGULATION'S PROVISO
REQUIRED) WHETHER ALL RELEVANT EVIDENCE HAS BEEN SUBMITTED SINCE WE
HAVE NEVER HAD IN WRITING THE BASIS UPON WHICH YOU MADE THIS
DETERMINATION."  THE REGIONAL BOARD REPLIED THAT BECAUSE "THE STATEMENT
REQUIRED BY THE REGULATION" WAS NOT SUBMITTED, "YOUR REQUEST FOR A
SUMMARY IS DEFECTIVE." 

BANNERCRAFT'S RESPONSE WAS THAT IT HAD "SUBMITTED ALL OF THE
EVIDENCE WHICH IT BELIEVES TO BE RELEVANT TO THE RENEGOTIATION
PROCEEDINGS," BUT 

THAT THIS WAS "WITHOUT PREJUDICE TO AN OPPORTUNITY TO OFFER EVIDENCE
ON THE ISSUES DISCLOSED BY THE (REGIONAL BOARD'S) SUMMARY OF FACTS AND
REASONS" AND THAT THE REQUIRED STATEMENT WAS "SOMEWHAT MEANINGLESS WHEN
WE DO NOT HAVE A WRITTEN STATEMENT OF THE ISSUE UPON WHICH YOU HAVE
MADE YOUR FINDING." 

ON MARCH 16, BANNERCRAFT, PURSUANT TO THE FOIA, MADE A WRITTEN
REQUEST OF THE RENEGOTIATION BOARD THAT SIX CATEGORIES OF DOCUMENTS BE
PRODUCED.  /3/  NO RESPONSE TO THIS REQUEST WAS FORTHCOMING. 

IN LATE APRIL, THE BOARD, BY LETTERS, NOTIFIED BANNERCRAFT OF ITS
DETERMINATIONS THAT THE CONTRACTOR HAD REALIZED EXCESSIVE PROFITS IN
THE AMOUNT OF $75,000 FOR 1966 (THE SAME FIGURE DETERMINED BY THE
REGIONAL BOARD) AND $1,450,000 FOR 1967 (AN INCREASE OF $50,000 OVER
THE REGIONAL BOARD'S DETERMINATION). 

BANNERCRAFT THEN WENT TO COURT.  ON MAY 1, IT FILED A COMPLAINT
AGAINST THE BOARD IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA, PRAYING THAT THE BOARD BE ENJOINED FROM WITHHOLDING THE
DOCUMENTS REQUESTED AND FROM CONDUCTING ANY FURTHER RENEGOTIATION
PROCEEDINGS WITH BANNERCRAFT FOR 1966 AND 1967 UNTIL THE DOCUMENTS WERE
PRODUCED.  THE BOARD OPPOSED THE APPLICATION FOR TEMPORARY RELIEF AND
MOVED TO DISMISS.  JUDGE SMITH ISSUED A TEMPORARY RESTRAINING ORDER
AND, THEREAFTER, A PRELIMINARY INJUNCTION, EACH WITHOUT OPINION, AND
STAYED FURTHER BOARD PROCEEDINGS. 

IN MAY, THE BOARD ISSUED A STATEMENT OF FACTS AND REASONS FOR
BANNERCRAFT'S YEARS 1966 AND 1967.  BANNERCRAFT THEN MADE A FURTHER
REQUEST FOR DOCUMENTS RELATED TO THE FACTUAL BASIS FOR THE BOARD'S
CONCLUSIONS REFLECTED IN THE STATEMENT.  IN JULY, THE BOARD RESPONDED. 
IT PRODUCED SOME DOCUMENTS AND, WITH RESPECT TO OTHERS, CLAIMED
EXEMPTION UNDER 5 U.S.C. 552(B) /4/  OR ASSERTED THAT THE INFORMATION
SOUGHT WAS NOT COVERED BY THE ACT.  /5/ 

ON AUGUST 4, THE BOARD MOVED TO DISSOLVE THE PRELIMINARY
INJUNCTION.  IT TOOK THE POSITION THAT ITS RESPONSE TO BANNERCRAFT'S
REQUESTS FULFILLED ITS OBLIGATIONS UNDER THE FOIA.  THE DISTRICT COURT
DENIED THE MOTION.  THE BOARD THEN APPEALED. 

B. ASTRO.  THIS RESPONDENT'S FACTUAL CASE IS ESSENTIALLY THE SAME AS
BANNERCRAFT'S.  THE YEAR AT ISSUE IS THE FISCAL YEAR ENDED SPETEMBER
30, 1967.  ASTRO, PURSUANT TO THE FOIA, REQUESTED PRODUCTION BY THE
BOARD OF FIVE CATEGORIES OF MATERIAL.  /6/  AT A CONFERENCE HELD ON MAY
12, 1970, ASTRO WAS ADVISED THAT THE BOARD HAD MADE A TENTATIVE
DETERMINATION OF EXCESSIVE PROFITS FOR THE YEAR IN THE AMOUNT OF
$225,000.  IN JULY, THE BOARD DENIED ASTRO'S FOIA REQUEST. 

ON AUGUST 12, ASTRO FILED ITS COMPLAINT AGAINST THE BOARD IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  IT PRAYED
FOR RELIEF SIMILAR TO THAT SOUGHT BY BANNERCRAFT.  JUDGE PRATT ENJOINED
THE BOARD FROM CONTINUING RENEGOTIATION PROCEEDINGS WITH ASTRO.  THE
COURT ALSO ORDERED THE BOARD TO ALLOW ASTRO, WITHIN 30 DAYS, TO INSPECT
AND OBTAIN COPIES OF ALL DOCUMENTS REQUESTED BY ASTRO THAT THE BOARD
HAD NO OBJECTION TO TURNING OVER, AND TO SUBMIT TO THE COURT, IN
CAMERA, ALL DOCUMENTS THE BOARD OBJECTED TO PRODUCING, WITH A STATEMENT
OF REASONS FOR EACH OBJECTION.  THE BOARD APPEALED. 

C. LILLY.  THIS RESPONDENT'S CASE IS SIMILAR TO THE OTHER TWO.  IN
JUNE 1970, LILLY AND ITS PREDECESSOR IN INTEREST, DELAWARE FASTENER
CORPORATION, WERE ADVISED BY THEIR RENEGOTIATOR THAT HE HAD MADE
DETERMINATIONS OF EXCESSIVE PROFITS FOR 1967 FOR LILLY IN THE AMOUNT OF
$200,000 AND FOR FASTENER IN THE AMOUNT OF $500,000.  /7/  ON JUNE 29,
THE TWO CORPORATIONS ASKED THE BOARD TO FURNISH CERTAIN CATEGORIES OF
INFORMATION.  /8/ 

NO RESPONSE WAS IMMEDIATELY FORTHCOMING FROM THE BOARD.  ON JULY 9,
LILLY FILED ITS COMPLAINT AGAINST THE BOARD IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, PRAYING FOR AN ORDER
COMPELLING THE BOARD TO PRODUCE THE DOCUMENTS DEMANDED AND RESTRAINING
THE BOARD FROM ACTING AND, IN PARTICULAR, FROM REQUIRING THE
CONTRACTORS TO ELECT A PROCEDURE UNTIL THE DOCUMENTS HAD BEEN PRODUCED
AND THE CONTRACTORS HAD BEEN GIVEN A REASONABLE TIME TO STUDY THEM. 
THEREAFTER, THE BOARD DENIED THE REQUEST FOR INFORMATION. 

ON JULY 31, JUDGE JONES ISSUED AN ORDER TEMPORARILY RESTRAINING THE
BOARD FROM CONTINUING RENEGOTIATION WITH LILLY AND DELAWARE. 
SUBSEQUENTLY, THE BOARD MOVED TO DISMISS THE COMPLAINT OR, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT.  ON SEPTEMBER 1, A PRELIMINARY
INJUNCTION WAS ISSUED.  THE BOARD APPEALED. 

THE THREE APPEALS WERE CONSOLIDATED AND HEARD TOGETHER IN THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  THE
COURT OF APPEALS, ONE JUDGE DISSENTING, AFFIRMED ALL THREE DECISIONS. 
151 U.S. APP. D.C. 174, 466 F.2D 345 (1972).  IT HELD THAT THE DISTRICT
COURT POSSESSED JURISDICTION UNDER THE FOIA TO ENJOIN ADMINISTRATIVE
PROCEEDINGS BEFORE THE BOARD AND TO ORDER THE PRODUCTION OF APPROPRIATE
DOCUMENTS.  IT CONCLUDED THAT, "ALTHOUGH IT IS UNDENIABLY TRUE THAT
CONGRESS WAS PRINCIPALLY INTERESTED IN OPENING ADMINISTRATIVE PROCESSES
TO THE SCRUTINY OF THE PRESS AND GENERAL PUBLIC" WHEN IT ENACTED THE
FOIA, "CONGRESS WAS ALSO TROUBLED BY THE BASIS OF SECRET LAWS OR
INCOMPLETE INFORMATION."  151 U.S. APP. D.C., AT 181, 466 F.2D, AT
352.  THE COURT THEN DESCRIBED THIS LATTER CONGRESSIONAL CONCERN AS A
"SUBSIDIARY STATUTORY PURPOSE," CITING EXCERPTS FROM S. REP. NO. 813,
89TH CONG., 1ST SESS., 7 (1965), AND FROM H.R. REP. NO. 1497, 89TH
CONG., 2D SESS., 8 (1966), AND ALSO CITING 5 U.S.C. 552(A)(2).  SEE
INFRA, AT 12 N. 9.  IT REASONED THAT, DESPITE "THE FACT THAT THE ACT
NOWHERE IN TERMS AUTHORIZES . . . INJUNCTIONS" OF AGENCY PROCEEDINGS,
IN ENACTING THE STATUTE CONGRESS INTENDED TO CONFER BROAD EQUITABLE
JURISDICTION UPON THE DISTRICT COURTS, AND THAT "TEMPORARY STAYS OF
PENDING ADMINISTRATIVE PROCEDURES MAY BE NECESSARY ON OCCASION TO
ENFORCE THE POLICY" OF THE FOIA.  151 U.S. APP. D.C., AT 181 - 183, 466
F.2D, AT 352 - 354. 

THE COURT THEN TURNED TO THE EXHAUSTION-OF-ADMINISTRATIVE-REMEDIES
QUESTION.  IT OBSERVED THAT THERE IS NO GENERAL RULE THAT IT IS ALWAYS
IMPROPER FOR A COURT TO INTERFERE WITH PENDING ADMINISTRATIVE
PROCEEDINGS, CITING MCKART V. UNITED STATES, 395 U.S. 185, 193 (1969). 
IT CONCLUDED THAT "WHEN THE PURPOSES OF THE DOCTRINE ARE INDIVIDUALLY
MEASURED AGAINST THE FACTS OF THESE CASES, IT IS PLAIN THAT NO
LEGITIMATE JUDICIAL POLICY WOULD BE SERVED BY DEPRIVING THESE APPELLEES
OF THE RELIEF THEY SEEK."  151 U.S. APP. D.C., AT 184, 466 F.2D, AT
355.  IN EFFECT, THE COURT REASONED THAT CONTRACTORS NEED EXHAUST ONLY
THEIR ADMINISTRATIVE REMEDIES UNDER THE 

FOIA, AND NOT THEIR ADMINISTRATIVE REMEDIES UNDER THE RENEGOTIATION
ACT, AS A CONDITION PRECEDENT TO REQUESTING INJUNCTIVE RELIEF AGAINST
RENEGOTIATION PROCEEDINGS.  THE COURT FOUND THE CONTRACTORS' REMEDIES
BEFORE THE BOARD AND DE NOVO PROCEEDINGS IN THE COURT OF CLAIMS
INADEQUATE TO PREVENT IRREPARABLE HARM. 

THE DISSENTING JUDGE BEGAN WITH THE ACCEPTED PROPOSITION THAT
FEDERAL COURTS HAVE ONLY LIMITED JURISDICTION AND THAT THE MAJORITY'S
OBSERVATION, TO THE EFFECT THAT THE "EXISTENCE OF PRESENT NEED FOR
JUDICIAL INTERVENTION DOES HAVE A BEARING ON BOTH JURISDICTION AND
EXHAUSTION," IS "AN ERROR BORDERING ON CONSTITUTIONAL DIMENSIONS," FOR
THE APPELLEES' NEED "IS WHOLLY IRRELEVANT TO DETERMINATION OF THE
JURISDICTION OF THE DISTRICT COURTS IN THESE CASES."  151 U.S. APP.
D.C., AT 191, 466 F.2D, AT 362. 

THE DISSENT THEN TURNED TO THE PRINCIPLE THAT WHERE A STATUTE
CREATES A RIGHT AND PROVIDES A SPECIAL REMEDY, THAT REMEDY IS
EXCLUSIVE.  THUS, IN THE FOIA, CONGRESS GAVE THE GENERAL PUBLIC AN
EXPRESS RIGHT OF ACCESS TO ALL FEDERAL GOVERNMENT INFORMATION NOT
WITHIN THE EXEMPTED CATEGORIES.  THIS RIGHT WAS ENFORCEABLE BY "THE
SPECIFIC, NARROW, REMEDIES OF AN INJUNCTION AGAINST WITHHOLDING AGENCY
RECORDS AND AN AFFIRMATIVE ORDER TO PRODUCE SUCH RECORDS IMPROPERLY
WITHHELD."  IBID.  THE DISSENT CONCLUDED THAT NO JURISDICTION TO GRANT
ANY OTHER REMEDY WAS CONFERRED BY CONGRESS AND THAT THE DISTRICT COURT,
THEREFORE, WAS WITHOUT JURISDICTION TO ENJOIN THE PROCEEDINGS BEFORE
THE RENEGOTIATION BOARD.  NOTHING IN THE CONGRESSIONAL REPORTS CITED BY
THE MAJORITY JUSTIFIED ITS CONTRARY CONCLUSION.  THE DISSENT FURTHER
CONCLUDED THAT THERE WAS NO SUGGESTION THAT CONGRESS HAD ANY CONCERN
WITH LITIGANTS BEFORE THE ADMINISTRATIVE AGENCIES, AND THAT WHAT THEY
WERE CONCERNED WITH WAS TO MAKE INFORMATION AVAILABLE "TO ANY MEMBER OF
THE PUBLIC WITHOUT REQUIRING ANY SHOWING OF NEED THEREFOR."  151 U.S.
APP. D.C., AT 192, 466 F.2D, AT 363. 

THE DISSENT ALSO WAS AT ODDS WITH THE MAJORITY'S DISPOSITION OF THE
EXHAUSTION ISSUE.  IT ASSERTED THAT THE MAJORITY SERIOUSLY MISCONSTRUED
THE INTENDED FUNCTIONING OF THE RENEGOTIATION BOARD'S PROCEDURES,
NAMELY, THAT CONTROLLED ACCESS TO INFORMATION CONCERNING THE
GOVERNMENT'S POSITION PLAYS A SIGNIFICANT ROLE IN THE ADMINISTRATIVE
PROCESS; THAT INTERRUPTION OF THE ADMINISTRATIVE PROCEEDINGS TOTALLY
DESTROYS THE BALANCE OF NEGOTIATING STRENGTH; AND THAT THE ATTEMPT TO
ENJOIN THE ONGOING NEGOTIATIONS WAS REALLY NOT A REQUEST FOR RELIEF
UNDER THE FOIA BUT WAS A CHALLENGE TO THE BOARD'S PROCEDURES
THEMSELVES.  151 U.S. APP. D.C., AT 194 - 195, 466 F.2D, AT 365 - 366. 

WE GRANTED CERTIORARI, 410 U.S. 907 (1973), BECAUSE OF THE
IMPORTANCE OF THE ISSUE OF THE IMPACT OF THE FOIA UPON LONG-ESTABLISHED
PROCEDURES OF THE RENEGOTIATION BOARD. 

        II 

BEFORE CONSIDERING THE ISSUE OF THE DISTRICT COURT'S JURISDICTION TO
ENJOIN A PROCEEDINGS PENDING IN THE RENEGOTIATION BOARD, IT IS HELPFUL
TO REVIEW THE PROVISIONS OF THE FOIA AND OF THE RENGOTIATION ACT OF
1951: 

A. THE FOIA.  THIS STATUTE, 5 U.S.C. 552, WAS ENACTED IN 1966, 80
STAT. 383, AS A REVISION OF 3 OF THE ADMINISTRATIVE PROCEDURE ACT, 5
U.S.C. 1002 (1964 ED.).  S. REP. NO. 813, 89TH CONG., 1ST SESS., 3 - 4
(1965); H.R. REP. NO. 1497, 89TH CONG., 2D SESSION., 1 - 6 (1966).  IT
WAS AMENDED BY PUB. L. 90 - 23, ADOPTED JUNE 5, 1967, 81 STAT. 54. 

PUBLIC"  CERTAIN INFORMATION OF ENUMERATED CATEGORIES.  THIS COVERS
VIRTUALLY ALL INFORMATION NOT SPECIFICALLY EXEMPTED BY 552(B).  SECTION
552(A)(2) /9/  PROVIDES THE SANCTION THAT A "FINAL ORDER, OPINION,
STATEMENT OF POLICY, INTERPRETATION, OR STAFF MANUAL OR INSTRUCTION"
MAY NOT BE RELIED UPON AS PRECEDENT BY THE AGENCY AGAINST A PARTY
UNLESS "IT HAS BEEN INDEXED AND EITHER MADE AVAILABLE OR PUBLISHED," OR
UNLESS A PARTY HAS "ACTUAL AND     TIMELY NOTICE OF THE TERMS
THEREOF."  SECTION 552(A)(3) SPECIFICALLY VESTS THE DISTRICT COURT WITH
JURISDICTION "TO ENJOIN THE AGENCY FROM WITHHOLDING AGENCY RECORDS AND
TO ORDER THE PRODUCTION OF ANY AGENCY REPORTS IMPROPERLY WITHHELD."  IT
PLACES THE BURDEN ON THE AGENCY TO SUSTAIN ITS ACTION; IT EMPOWERS THE
DISTRICT COURT TO PUNISH THE RESPONSIBLE EMPLOYEE FOR CONTEMPT IN THE
EVENT OF NONCOMPLIANCE; AND IT PROVIDES THAT THE FOIA SUIT GENERALLY IS
TO TAKE PRECEDENCE ON THE COURT'S DOCKET AND IS TO BE EXPEDITED ON THE
CALENDAR.  /10/ 

B. THE RENEGOTIATION ACT OF 1951.  /11/  THIS STATUTE, 50 U.S.C.
APP. 1211 - 1233, ENACTED SHORTLY AFTER THE CLOSE OF WORLD WAR II AND
AT THE HEIGHT OF THE KOREAN CONFLICT, RECITES THAT CONGRESS HAD MADE
AVAILABLE "EXTENSIVE FUNDS" FOR THE EXECUTION OF THE NATIONAL DEFENSE
PROGRAM AND THAT "SOUND EXECUTION" OF THE PROGRAM REQUIRES "THE
ELIMINATION OF EXCESSIVE PROFITS FROM CONTRACTS MADE WITH THE UNITED
STATES, AND FROM RELATED SUBCONTRACTS."  101, 50 U.S.C. APP. 1211.  THE
RENEGOTIATION BOARD IS ESTABLISHED AS AN INDEPENDENT AGENCY IN THE
EXECUTIVE BRANCH TO ACCOMPLISH THIS OBJECTIVE.  107, 50 U.S.C. APP.
1217(A).  THE BOARD'S FUNCTIONS ARE EXCLUDED FROM THE OPERATION OF THE
ADMINISTRATIVE PROCEDURE ACT (5 U.S.C. 551 ET SEQ., AND 701 ET SEQ.)
EXCEPT THE PUBLIC INFORMATION SECTION THEREOF (5 U.S.C. 552.  111, 50
U.S.C. APP. 1221. 

THE BOARD OPERATES PRIMARILY BY INFORMAL NEGOTIATION WITH THE
CONTRACTOR AND NOT BY FORMAL HEARING.  IT IS DIRECTED TO "ENDEAVOR TO
MAKE AN AGREEMENT WITH THE CONTRACTOR . . . WITH RESPECT TO THE
ELIMINATION OF EXCESSIVE PROFITS."  105(A), 50 U.S.C. APP. 1215(A). 
THE CONTRACTOR SUBJECT TO THE ACT MUST FILE, FOR ITS FISCAL YEAR, A
DETAILED FINANCIAL STATEMENT.  105(E)(1), 50 U.S.C. APP. 1215(E)(1). 
ON THE BASIS OF THIS STATEMENT AN INITIAL DETERMINATION OF EXCESSIVE
PROFITS IS MADE.  FROM THE DATE OF FILING OF THE STATEMENT, THE BOARD
HAS ONE YEAR TO COMMENCE PROCEEDINGS /12/  AND, WITH STATED EXCEPTIONS,
THE RENEGOTIATION IS TO BE COMPLETED WITHIN TWO YEARS FOLLOWING ITS
COMMENCEMENT OR "ALL LIABILITIES OF THE CONTRACTOR . . . FOR EXCESSIVE
PROFITS WITH RESPECT TO WHICH SUCH PROCEEDING WAS COMMENCED SHALL
THEREUPON BE DISCHARGED."  /13/  105(C), 50 U.S.C. APP. 1215(C). 

IF THE BOARD AND THE CONTRACTOR DO NOT AGREE, THE BOARD BY ORDER
DETERMINES THE EXCESSIVE PROFITS.  105(A), 50 U.S.C. APP. 1215(A).  AT
THE REQUEST OF THE CONTRACTOR, THE BOARD SHALL FURNISH IT "WITH A
STATEMENT OF SUCH DETERMINATION, OF THE FACTS USED AS A BASIS THEREFOR,
AND OF ITS REASONS FOR SUCH DETERMINATION."  IBID.  THE CONTRACTOR THEN
MAY INITIATE A DE NOVO PROCEEDING IN THE COURT OF CLAIMS, /14/  WHICH
HAS EXCLUSIVE JURISDICTION TO DETERMINE THE CONTRACTOR'S EXCESSIVE
PROFITS.  108, 50 U.S.C. APP. 1218 (1970 ED., SUPP. II).  THE ACTION
"SHALL NOT BE USED IN THE COURT OF CLAIMS AS PROOF OF THE FACTS OR
CONCLUSIONS STATED THEREIN," 105(A), 50 U.S.C. APP. 1215(A) (1970 ED.,
SUPP. II). 

THE RENEGOTIATION PROCESS ITSELF IS INITIATED BY NOTICE TO THE
CONTRACTOR AND BY ASSIGNMENT OF THE CONTRACTOR'S REPORT TO THE
APPROPRIATE REGIONAL BOARD.  32 CFR 1472.2 (1972).  /15/  PERSONNEL OF
THE REGIONAL BOARD THEN PREPARE A "REPORT OF RENGOTIATION" WHICH
INCLUDES A "RECOMMENDATION WITH RESPECT TO THE AMOUNT, IF ANY, OF
EXCESSIVE PROFITS FOR THE FISCAL YEAR UNDER REVIEW."  32 CFR
1472.3(D).  THIS IS ONLY THE FIRST OF SEVERAL STEPS WITHIN THE AGENCY
STRUCTURE.  THEREAFTER THE STATEMENT IS REVIEWED, 

SUCCESSIVELY, BY A PANEL OF THE REGIONAL BOARD, BY THE REGIONAL
BOARD ITSELF, AND FINALLY BY THE RENEGOTIATION BOARD.  AT EACH LEVEL
THERE IS CONSULTATION WITH THE CONTRACTOR, THE PREPARATION OF A REPORT
AND ANALYSIS, AND SUBMISSION TO THE NEXT HIGHER LEVEL OF A
RECOMMENDATION AS TO EXCESSIVE PROFITS.  32 CFR 1472.3(D) AND (F) -
(I), AND 1472.4(B) - (D).  AT EACH STAGE, THE CONTRACTOR IS ENTITLED TO
A STATEMENT OF THE BASIS FOR THE RECOMMENDATION.  EACH LEVEL IS FREE TO
MAKE NEW FINDINGS AND NO LEVEL IS BOUND BY THE DETERMINATION OF THE
LEVEL BELOW; THE RECOMMENDED SETTLEMENT MAY DECREASE OR INCREASE AT
EACH LEVEL.  IBID.

        III 

IT IS CLEAR, WE THINK, THAT THE RENEGOTIATION BOARD, AS AN ENTITY, IS
NOT EXEMPT FROM APPLICABLE PROVISIONS OF THE FOIA.  THE BOARD, OF
COURSE, IS AN "INDEPENDENT ESTABLISHMENT" IN THE EXECUTIVE BRANCH. 
107(A) OF THE RENEGOTIATION ACT, 50 U.S.C. APP. 1217(A).  BUT "AGENCY"
IS BROADLY DEFINED IN THE FOIA TO MEAN "EACH AUTHORITY OF THE
GOVERNMENT OF THE UNITED STATES,"  EXCEPT THE CONGRESS, THE COURTS,
TERRITORIAL GOVERNMENTS, THE GOVERNMENT OF THE DISTRICT OF COLUMBIA,
AND, WITH RESPECT TO 5 U.S.C. 552, CERTAIN OTHER SPECIFICALLY DESCRIBED
ENTITIES AND FUNCTIONS.  5 U.S.C. 551(1).  THE RENEGOTIATION BOARD IS
NOT AMONG THOSE EXCEPTED.  FURTHER, THE HOUSE COMMITTEE'S DISCUSSION OF
THE REQUIREMENT OF 552(A)(2), THAT AN AGENCY'S CONCURRING AND
DISSENTING OPINIONS, AS WELL AS FINAL OPINIONS, BE MADE AVAILABLE,
DISCLOSES THAT A REASON FOR THIS PROVISION WAS THAT "A RECENT SURVEY
INDICATED THAT FIVE AGENCIES--INCLUDING . . . THE RENEGOTIATION BOARD-
DO NOT MAKE PUBLIC THE MINORITY VIEWS OF THEIR MEMBERS."  H.R. REP. NO.
1497, SUPRA, AT 8.  THUS, DESPITE ITS UNIQUE OPERATIONAL METHODS, THE
BOARD FALLS WITHIN THE DEFINITION OF "AGENCY"  IN THE FOIA.  /16/ 

SO TO CONCLUDE, HOWEVER, DOES NOT PROVIDE AUTOMATICALLY THE ANSWER
TO THE QUESTION WHETHER THE FOIA AUTHORIZES A DISTRICT COURT TO ENJOIN
RENEGOTIATION BOARD PROCEEDINGS UNTIL THE COURT DETERMINES THAT THE
CONTRACTOR IS OR IS NOT ENTITLED TO INFORMATION IT CLAIMS UNDER THE
FOIA. 

AS TO THIS QUESTION, THE RESPONDENT CONTRACTORS ASSERT THAT,
ALTHOUGH THE FOIA DOES NOT GRANT THIS INJUNCTIVE POWER IN EXPRESS
TERMS, THE POWER IS TO BE IMPLIED FROM THE COURT'S INHERENT CAPACITY TO
PROVIDE APPROPRIATE EQUITABLE RELIEF.  THE BOARD, ON THE OTHER HAND,
EMPHASIZES THAT CONGRESS IN THE ACT EXPRESSLY AUTHORIZED THE COURT TO
COMPEL THE PRODUCTION OF AGENCY RECORDS IMPROPERLY WITHHELD, PLACED THE
BURDEN ON THE AGENCY TO SUSTAIN ITS ACTION, AND DIRECTED PRECEDENCE ON
THE DOCKET FOR SUITS UNDER THE ACT "OVER ALL OTHER CAUSES" AND
EXPEDITION OF THOSE SUITS "IN EVERY WAY."  5 U.S.C. 552(A)(3).  THE
BOARD THEN CONTENDS THAT THESE PROVISIONS CONSTITUTE THE EXCLUSIVE
METHOD FOR ENFORCING THE DISCLOSURE REQUIREMENTS OF THE ACT AND THAT
ANY IMPLICATION OF OTHER INJUNCTIVE POWER, AT THE BEHEST OF A LITIGANT
BEFORE THE AGENCY, WOULD BE INCONSISTENT WITH THE STATUTORY LANGUAGE. 

CLEARLY, AS THE COURT OF APPEALS HELD, 151 U.S. APP. D.C., AT 181,
466 F.2D, AT 352, THE CONGRESS "WAS PRINCIPALLY INTERESTED IN OPENING
ADMINISTRATIVE PROCESSES TO THE SCRUTINY OF THE PRESS AND GENERAL
PUBLIC WHEN IT PASSED THE INFORMATION ACT."  THE SECOND CIRCUIT HAS
DESCRIBED THE ACT'S "ULTIMATE PURPOSE" AS ONE "TO ENABLE THE PUBLIC TO
HAVE SUFFICIENT INFORMATION IN ORDER TO BE ABLE, THROUGH THE ELECTORAL
PROCESS, TO MAKE INTELLIGENT, INFORMED CHOICES WITH RESPECT TO THE
NATURE, SCOPE, AND 

PROCEDURE OF FEDERAL GOVERNMENTAL ACTIVITIES"  (FOOTNOTE OMITTED). 
FRANKEL V. SEC, 460 F.2D 813, 816, CERT. DENIED, 409 U.S. 889 (1972). 
THE SENATE REPORT, TOO, EXPRESSED CONCERN FOR "AN INFORMED
ELECTORATE."  S. REP. NO. 813, 89TH CONG., 1ST SESS., 3 (1965).  /17/ 

TO GRANT INJUNCTIVE RELIEF OF A DESCRIBED TYPE, NAMELY, "TO ENJOIN THE
AGENCY FROM WITHHOLDING AGENCY RECORDS AND TO ORDER THE PRODUCTION OF
ANY AGENCY RECORDS IMPROPERLY WITHHELD FROM THE COMPLAINANT."  IN
ADDITION, IT PROVIDES A SPECIFIC REMEDY FOR NONCOMPLIANCE. 

THIS PRIMARY PURPOSE OF THE FOIA, AND THIS EXPRESS GRANT OF
JURISDICTION TO ENJOIN IN A SPECIFIC WAY, COUPLED WITH A LIMITED
SANCTION, MIGHT SUGGEST THAT THE ACT'S PROVISION FOR COMPELLED
PRODUCTION WAS INTENDED TO BE THE EXCLUSIVE ENFORCEMENT METHOD.  IT HAS
BEEN HELD THAT "WHERE A STATUTE CREATES A RIGHT AND PROVIDES A SPECIAL
REMEDY, THAT REMEDY IS EXCLUSIVE."  UNITED STATES V. BABCOCK, 250 U.S.
328, 331 (1919).  AND "CONGRESS FOR REASONS OF ITS OWN DECIDED UPON THE
METHOD FOR THE PROTECTION OF THE 'RIGHT' WHICH IT CREATED.  IT SELECTED
THE PRECISE MACHINERY AND FASHIONED THE TOOL WHICH IT DEEMED SUITED TO
THAT END."  SWITCHMEN'S UNION V. NMB, 320 U.S. 297, 301 (1973).  SEE
NATIONAL RAILROAD PASSENGER CORP. V. NATIONAL ASSN. OF RAILROAD
PASSENGERS, 414 U.S. 453, 458 (1974).  ONE THEREFORE MAY ARGUE, AS THE
BOARD HAS ARGUED HERE, THAT THIS IS NOT A SITUATION WHERE "CONGRESS HAS
UTILIZED . . . THE BROAD EQUITABLE JURISDICTION THAT INHERES IN COURTS
AND WHERE THE PROPOSED EXERCISE OF THAT JURISDICTION IS CONSISTENT WITH
THE STATUTORY LANGUAGE AND POLICY, THE LEGISLATIVE BACKGROUND AND THE
PUBLIC INTEREST."  PORTER V. WARNER HOLDING CO., 328 U.S. 395, 403
(1946). 

THERE IS SIGNIFICANT AUTHORITY, HOWEVER, THAT POINTS TO THE OPPOSITE
CONCLUSION.  PORTER ITSELF, ALTHOUGH RECOGNIZING THE KIND OF SITUATION
TO WHICH BABCOCK IS APPLICABLE, 328 U.S., AT 403, UPHELD BROAD
EQUITABLE POWER IN THE DISTRICT COURT UNDER A STATUTE AUTHORIZING THE
COURT TO GRANT INJUNCTIVE AND RESTRAINING RELIEF "OR OTHER ORDER," AND
DID SO, NOT ONLY BECAUSE OF THE PRESENCE OF THE "OTHER ORDER" LANGUAGE,
BUT BECAUSE OF THE TRADITIONAL EQUITY POWERS OF A COURT."  ID., AT
400.  EMPHASIS ON BROAD EQUITY POWER, EVEN IN THE FACE OF A SILENT
STATUTE, ALSO APPEARS IN MITCHELL V. ROBERT DEMARIO JEWELRY, INC., 361
U.S. 288, 290 - 291 (1960); SCRIPPS-HOWARD RADIO, INC. V. FCC, 316 U.S.
4 (1942); ARROW TRANSPORATION CO. V. SOUTHERN R. CO., 372 U.S. 658, 671
N. 22 (1963); SEE L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION
659 (1965), AND IS SOMETIMES RELATED TO THE ALL WRITS ACT, 28 U.S.C.
1651(A).  FTC V. DEAN FOODS CO., 384 U.S. 597, 603 - 604 (1966). 

THE BROAD LANGUAGE OF THE FOIA, WITH ITS OBVIOUS EMPHASIS ON
DISCLOSURE AND WITH ITS EXEMPTIONS CAREFULLY DELINEATED AS EXCEPTIONS;
THE TRUISM THAT CONGRESS KNOWS HOW TO DEPRIVE A COURT OF BROAD
EQUITABLE POWER WHEN IT 

CHOOSES SO TO DO, SCRIPPS-HOWARD, SUPRA, 316 U.S., AT 17; AND THE
FACT THAT RESOLVED, AIRCRAFT, 331 U.S. AT 769 N. 30, CITING 89 CONG.
REC. 9930 (1943), /20/  AND AT 771; AND ON THE ACT'S PROVISIONS FOR
EXPEDITIOUS SETTLEMENT IN INFORMAL NEGOTIATION FREE "FROM THE TEDIOUS
BURDEN OF LITIGATION."  ID., AT 770. 

IN AIRCRAFT THE COURT REJECTED ARGUMENTS SUBSTANTIALLY THE SAME AS
THOSE ADVANCED BY THE RESPONDENTS HERE, 331 U.S., AT 758 N. 12
(INABILITY TO PARTICIPATE EFFECTIVELY BECAUSE OF LACK OF INFORMATION
UPON WHICH THE BOARD HAD RELIED, SEE NO. 95, O. T. 1946, TR. OF R.,
VOL. I, P. 141), AND REFUSED TO PERMIT RENEGOTIATION TO BE ENJOINED. 
"TO COUNTENANCE SHORT-CIRCUITING OF THE TAX COURT PROCEEDINGS HERE
WOULD BE, UNDER ALL THE CIRCUMSTANCES BUT MORE ESPECIALLY IN VIEW OF
CONGRESS' POLICY AND COMMAND WITH RESPECT TO THOSE PROCEEDINGS, A LONG
OVERREACHING OF EQUITY'S STRONG ARM."  331 U.S., AT 781. 

REFLECTION UPON THE NATURE OF THE RENEGOTIATION BOARD'S PROCESS
FORTIFIES THESE CONCLUSIONS.  THE CHARACTER AND THE ENTIRE ATMOSTPHERE
OF THE PROCESS IS NEGOTIATION--THAT IS, RENEGOTIATION--OF AN EXISTING
CONTRACT.  AND NEGOTIATION IS A BARGAINING PROCESS, WITH GIVE AND TAKE,
AND WITH STRESS UPON AND USE OF THE STRENGTHS OF ONE'S OWN POSITION AND
THE WEAKNESSES OF THE POSITION OF THE OTHER PARTY.  IT IS IN A PROCESS
SUCH AS THIS WHERE THE PHRASE "LEADING FROM STRENGTH" HAS BEEN SO
EFFECTIVELY TRANSFERRED IN PRACTICAL APPLICATION FROM THE CARD TABLE TO
THE WORLD OF COMMERCE.  IT IS PART OF THE WARP AND WOOF OF PRODUCTION. 
IT IS PURE BARGAINING--PERMITTED BY THE STATUTE WITH RESPECT TO
CONTRACTS ALREADY MADE--THE SAME KIND OF BARGAINING THAT PRODUCES THE
UNION-EMPLOYER AGREEMENT OR THE TRANSFER OF SUBSTANTIAL PROPERTY FROM
THE WILLING SELLER TO THE INTERESTED BUYER. 

WE SEE NOTHING IN THE ADOPTION OF THE FOIA IN 1966 THAT IMPINGES
UPON THE SETTLED LAW OF THE AIRCRAFT-LICHTER-MACAULEY CASES OR THAT
WARRANTS AN EXCEPTION TO THE PRINCIPLE THEY ESPOUSE.  NOTHING NEW BY
WAY OF DUE PROCESS EMERGED WITH THE FOIA.  NOTHING THEREIN INDICATES
THAT CONGRESS WISHED TO CHANGE THE RENEGOTIATION ACT'S PURPOSEFUL
DESIGN OF NEGOTIATION WITHOUT INTERRUPTION FOR JUDICIAL REVIEW.  FOIA'S
STRESS WAS ON DISCLOSURE, TO BE SURE, BUT IT WAS ON DISCLOSURE FOR THE
PUBLIC, EPA V. MINK, 410 U.S. 73, 80 (1973), AND NOT FOR THE
NEGOTIATING SELF-INTERESTED CONTRACTOR.  ID., AT 86; SEE K. DAVIS,
ADMINISTRATIVE LAW TREATISE 3A.4, P. 120, 3A.29, P. 171 (SUPP. 1970). 
AND WHEN CONGRESS IN 1971 REVIEWED THE RENEGOTIATION ACT AND
SUBSTITUTED THE COURT OF CLAIMS FOR THE TAX COURT, NO OTHER SIGNIFICANT
CHANGE IN THE EXISTING PROCESS WAS EFFECTED.  SEE S. REP. NO. 92 - 245
(1971), ACCOMPANYING H.R. 8311, WHICH BECAME THE AMENDING STATUTE, PUB.
L. 92 - 41, 85 STAT. 97. 

IT IS NO ANSWER TO SAY, AS BANNERCRAFT AND ASTRO URGE, THAT
AIRCRAFT, LICHTER, AND MACAULEY RELATE ONLY TO ISSUES ON THE MERITS
OVER WHICH CONGRESS HAD VESTED JURISDICTION IN THE FIRST INSTANCE IN
THE BOARD AND THEN IN THE TAX COURT.  WE READ THOSE DECISIONS
OTHERWISE. 

SEEKING INJUNCTIVE RELIEF DURING THE PENDENCY OF RENEGOTIATION
ENCOURAGES DELAY THROUGH RESORT TO PRELIMINARY LITIGATION OVER AN FOIA
CLAIM.  THE DELAY IS NOT IMAGINARY OR WITHOUT ULTIMATE CONSEQUENCE. 
THE PRESENT CASES PROVIDE AN EXAMPLE OF THIS, FOR EACH HAS BEEN PENDING
NOW FOR MORE THAN THREE YEARS.  THE GOVERNMENT IS FORECLOSED FROM
TAKING ACTION TO RECOVER EXCESSIVE PROFITS UNTIL THE BOARD'S FINAL
ORDER IS ENTERED; EVEN THEN, INTEREST DOES NOT BEGIN TO RUN UNTIL 30
DAYS AFTER THE ENTRY OF THAT ORDER.  50 U.S.C. APP. 1215(B)(1) AND
(2).  THE CONTRACTOR, BY DELAY, HAS LITTLE TO LOSE AND MUCH TO GAIN. 

THERE IS NO LIMITATION OR DENIAL OF THE CONTRACTOR'S NORMAL
LITIGATION RIGHTS WHEN THE RENEGOTIATION PROCESS IS AT END.  THE
CONTRACTOR MAY INSTITUTE ITS DE NOVO PROCEEDING IN THE COURT OF CLAIMS,
UNFETTERED BY ANY PREJUDICE FROM THE AGENCY PROCEEDING AND FREE FROM
ANY CLAIM THAT THE BOARD'S DETERMINATION IS SUPPORTED BY SUBSTANTIAL
EVIDENCE.  THERE THE USUAL RIGHTS OF DISCOVERY ARE AVAILABLE.  /21/
AND THERE THE PARTIES ARE NOT BOUND BY A PRIOR DETERMINATION MADE AT
ANY LEVEL OF THE RENEGOTIATION BOARD STRUCTURE.  50 U.S.C. APP. 1218. 
THAT PROCEEDING IS THE JUDICIAL REMEDY AT LAW PROVIDED BY THE
RENEGOTIATION ACT AND IS ADEQUATE PROTECTION AGAINST INJURY.  NOTE, 41
GEO. WASH. L. REV. 1072, 1084 (1973).  WE NOTE THAT A CONTRACTOR DOES
NOT BECOME OBLIGATED TO REMIT EXCESSIVE PROFITS UNTIL TERMINATION OF
THE COURT OF CLAIMS SUIT, IF IT ELECTS THAT COURSE.  THE INJURY
SUFFERED, ABSENT AN INJUNCTION, IS NO MORE THAN THE RISK OF BEING
UNSUCCESSFUL IN THE DE NOVO BARGAINING PROCESS AND THE INCURRENCE OF
THE EXPENSE INCIDENT TO RENEGOTIATION.  /22/  MERE LITIGATION EXPENSE,
EVEN SUBSTANTIAL AND UNRECOUPABLE COST, DOES NOT CONSTITUTE IRREPARABLE
INJURY.  MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, 51 - 52
(1938); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 429
(1965).  WITHOUT A CLEAR SHOWING OF IRREPARABLE INJURY, SEE VIRGINIA
PETROLEUM JOBBERS ASSN. V. FPC, 104 U.S. APP. D.C. 106, 111, 259 F.2D
921, 926 (1958), FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES SERVES AS A
BAR TO JUDICIAL INTERVENTION INTO THE AGENCY PROCESS.  MYERS, SUPRA;
SEARS, ROEBUCK & CO. V. NLRB, 153 U.S. APP. D.C. 380,382, 473 F.2D 91,
93 (1972). 

INTERFERENCE WITH THE AGENCY PROCEEDING OPENS THE WAY TO THE USE OF
THE FOIA AS A TOOL OF DISCOVERY, SEE SEARS, ROEBUCK & CO. V. NLRB, 433
F.2D 210, 211 (CA6 1970), OVER AND BEYOND THAT PROVIDED BY THE
REGULATIONS ISSUED BY THE RENEGOTIATION BOARD FOR ITS PROCEEDINGS.  SEE
32 CFR 1480.1 - 1480.12 (1972).  /23/  DISCOVERY FOR LITIGATION
PURPOSES IS NOT AN EXPRESSLY INDICATED PURPOSE OF THE ACT.  PROTECTION
FOR THE CONTRACTOR IN THE RENEGOTIATION PROCESS IS AFFORDED THROUGH THE
INJUNCTIVE POWER SPECIFICALLY BESTOWED BY 5 U.S.C. 552(A)(3). 

THE RENEGOTIATION ACT AND ITS PREDECESSORS OBVIOUSLY EMERGED FROM
CONGRESSIONAL AWARENESS THAT, WITH THE VASTNESS OF DEFENSE EXPENDITURE,
OVERCHARGING AND MISAPPROPRIATION OF PUBLIC FUNDS BY UNSCRUPULOUS
CONTRACTORS AND THOSE FORTUITOUSLY PLACED TO PERFORM NEEDED WORK WERE
ALMOST INEVITABLE.  THE TARGET OF THE LEGISLATION WAS EXCESSIVE PROFIT,
NOT THE FAIR AND REASONABLE ONE.  THE LATTER WAS ANTICIPATED AND
ACCEPTED.  THE LINE BETWEEN A REASONABLE PROFIT AND EXCESSIVE PROFIT IS
NOT ALWAYS EASILY ASCERTAINED OR BRIGHTLY LIT.  BUT THE ASCERTAINMENT
OF EXCESSIVE PROFITS WAS A DUTY VESTED BY THE CONGRESS IN THE
RENEGOTIATION BOARD IN THE FIRST INSTANCE.  THE BOARD THUS IS THE
FULCRUM OF A PROCESS THAT ENABLES THE GOVERNMENT INITIALLY TO CONSULT A
CONTRACTOR, TO MAKE A CONTRACT WITH IT, AND THEN TO HAVE THE CONTRACT
SUBJECT TO MODIFICATION FOR EXCESSIVE PROFITS, WHENEVER THEY
MATERIALIZE, WITHOUT VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  THE DISGORGING OF EXCESSIVE PROFITS IS NOT BY WAY OF A TAX,
BUT THE PROCESS IS NOT UNLIKE THE IMPOSITION OF A TAX EQUIVALENT TO THE
EXCESSIVE PROFITS.  CONGRESS' INITIAL PLACING OF THE CONTRACTOR
INITIATED FINAL PROCEEDING IN THE TAX COURT IS INDICATIVE OF THE
RELATIONSHIP. 

OF COURSE, THERE IS UNCERTAINTY IN THE RENEGOTIATION PROCESS.  AND,
OF COURSE, THAT UNCERTAINTY IS LESSENED OR ELIMINATED IF THE
CONTRACTOR, LIKE THE POKER PLAYER, IS ABLE TO ASCERTAIN ALL THE CARDS
IN THE BOARD'S HAND.  THERE IS RISK, ALSO, WHEN THE CONTRACTOR ACCEPTS
THE DETERMINATION OF EXCESSIVE PROFITS MADE AT ANY LEVEL OF THE
RENEGOTIATION PROCESS.  THESE RISKS, HOWEVER, ARE THE SAME RISKS THAT
ARE INHERENT IN THE NEGOTIATION AND VOLUNTARY SETTLEMENT OF ANY
DISPUTE.  THE ONE WHO PAYS POSSIBLY MIGHT PAY LESS IF HE RESORTS TO THE
FACTFINDER INSTEAD OF MAKING THE SETTLEMENT.  BUT HE MIGHT PAY MORE. 
THAT IS THE CALCULATED RISK HE TAKES.  IT IS THE CALCULATED RISK
PROVIDED FOR BY CONGRESS IN THE ADMINISTRATIVE PROCESS IT PRESCRIBED IN
THE RENEGOTIATION ACT.  IT IS NOT A RISK UNGENEROUSLY LAID UPON THE
CONTRACTOR, FOR IT IS COUNTERBALANCED BY THE PROFOUND INTEREST OF THE
PUBLIC IN THE RECAPTURE OF EXCESSIVE PROFITS THAT MAY FLOW TO THE
CONTRACTOR UNDER ITS GOVERNMENT CONTRACTS. 

WE STRESS, IN CONCLUSION, THAT THE MERITS ARE NOT BEFORE US.  THEY
ARE YET TO BE DECIDED BY THE DISTRICT COURT.  WHETHER ANY DEMAND MADE
BY THESE CONTRACTORS IS SO VAGUE AS NOT TO CONSTITUTE A "REQUEST FOR
IDENTIFIABLE RECORDS," 5 U.S.C. 552(A)(3), OR IS FOR MATERIAL EXEMPT
FROM DISCLOSURE UNDER 5 U.S.C. 552(B), ARE QUESTIONS THAT REMAIN OPEN
FOR DECISION ON REMAND. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

IT IS SO ORDERED. 

/1/  SHORTLY PRIOR THERETO, THE REGIONAL BOARD ADVISED THE
CONTRACTOR THAT IT HAD DETERMINED ITS EXCESSIVE PROFITS FOR 1966 TO BE
$75,000. 

/2/  "1477.3 FURNISHING OF OTHER STATEMENTS. 

"WHEN A REGIONAL BOARD HAS MADE . . . A FINAL RECOMMENDATION IN A
CLASS A CASE . . . AND THE CONTRACTOR IS UNABLE TO DECIDE WHETHER TO
ENTER INTO AN AGREEMENT FOR THE REFUND OF EXCESSIVE PROFITS SO
DETERMINED OR RECOMMENDED, THE REGIONAL BOARD . . . WILL FURNISH THE
CONTRACTOR A WRITTEN SUMMARY OF THE FACTS AND REASONS UPON WHICH SUCH
FINAL DETERMINATION OR RECOMMENDATION IS BASED IN ORDER TO ASSIST THE
CONTRACTOR IN DETERMINING WHETHER OR NOT IT WILL ENTER INTO AN
AGREEMENT:  PROVIDED, THAT THE CONTRACTOR REQUESTS SUCH A STATEMENT
WITHIN A REASONABLE TIME AFTER IT HAS BEEN ADVISED OF SUCH FINAL
DETERMINATION OR RECOMMENDATION, AND STATES THAT IT HAS SUBMITTED ALL
THE EVIDENCE WHICH IT BELIEVES TO BE RELEVANT TO THE RENEGOTIATION
PROCEEDINGS." 

/3/  THE REQUEST WAS BASED ON THE DECISION, ONLY SIX DAYS EARLIER,
IN GRUMMAN AIRCRAFT ENGINEERING CORP. V. RENEGOTIATION BOARD, 138 U.S.
APP. D.C. 147, 425 F.2D 578 (1970), THAT THE RENEGOTIATION BOARD WAS
SUBJECT TO THE FOIA AND THAT CERTAIN BOARD ORDERS AND OPINIONS WERE
ACCESSIBLE TO THE CONTRACTOR AFTER DELETIONS MADE IN THE LIGHT OF THE
ACT'S EXEMPTION PROVISIONS.  SEE THE SAME CASE ON REMAND, 325 F.SUPP. 
1146, AFF'D,--U.S. APP. D.C.--, 482 F.2D 710 (1973). 

THE DOCUMENTS BANNERCRAFT REQUESTED WERE:  (1) COMMUNICATIONS
BETWEEN THE BOARD AND OTHER GOVERNMENT AGENCIES WITH RESPECT TO
BANNERCRAFT'S RENEGOTIABLE CONTRACTS FOR 1966 AND 1967; (2)
INVESTIGATORY OR OTHER REPORTS PREPARED BY BOARD EMPLOYEES "CONTAINING
FACTS WHICH ARE RELEVANT TO THE BOARD'S DETERMINATION AS TO
BANNERCRAFT'S RENEGOTIABLE CONTRACTS" FOR THE TWO YEARS; (3) FINAL
OPINIONS, AND THE LIKE, AND SUMMARIES ON WHICH DETERMINATIONS WERE
BASED FOR THE YEARS 1962 THROUGH 1968 FOR 11 NAMED COMPANIES ENGAGED IN
SIMILAR MANUFACTURE; (4) FACTS UPON WHICH THE BOARD CONCLUDED THAT
BANNERCRAFT'S PRICING POLICY IN 1966 WAS UNREASONABLE; (5)
IDENTIFICATION OF THOSE MANUFACTURERS WITH WHICH BANNERCRAFT'S
PRODUCTION COST WAS COMPARED, AS STATED IN THE SUMMARY FOR 1966, WITH
CROSS-REFERENCE TO COMPARABLE DATA AS TO EACH OF THE 11 NAMED
MANUFACTURERS; AND (6) THE "PROCUREMENT INFORMATION," DESCRIBED IN THE
SUMMARY FOR 1966, THAT THE BOARD CONTENDED INDICATED THAT THERE WAS A
LACK OF EFFECTIVE PRICE COMPETITION. 

/4/  "552. 

        .          .       .          . 

"(B) THIS SECTION DOES NOT APPLY TO MATTERS THAT ARE--

        .          .          .          . 

"(3) SPECIFICALLY EXEMPTED FROM DISCLOSURE BY STATUTE; 

"(4) TRADE SECRETS AND COMMERCIAL OR FINANCIAL INFORMATION OBTAINED
FROM A PERSON AND PRIVILEGED OR CONFIDENTIAL; 

"(5) INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS OR LETTERS WHICH WOULD
NOT BE AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY IN LITIGATION
WITH THE AGENCY;

        .          .          .          . 

"(7) INVESTIGATORY FILES COMPILED FOR LAW ENFORCEMENT PURPOSES
EXCEPT TO THE EXTENT AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY .
. . " 

/5/  THE BOARD TOOK THE POSITION (A) THAT THE BOARD-AGENCY
COMMUNICATIONS, THE INVESTIGATORY AND OTHER REPORTS, AND THE
"PROCUREMENT INFORMATION"  (TO THE EXTENT IT CONSISTED OF WRITTEN
RECORDS), BEING THE FIRST, SECOND, AND SIXTH ITEMS SPECIFIED IN THE
REQUEST OF MARCH 16, WERE EXEMPT UNDER 5 U.S.C. 552(B)(3), (4), (5),
AND (7); (B) THAT THE FACTS RELIED UPON BY THE BOARD IN CONCLUDING THAT
BANNERCRAFT'S PRICING POLICY WAS UNREASONABLE, THAT IS, THE FOURTH ITEM
IN THE REQUEST OF MARCH 16, AND THE IDENTIFICATION OF MANUFACTURERS,
THE FIFTH ITEM, WERE NOT REQUESTS "FOR RECORDS"; AND (C) THAT COPIES OF
CLEARANCE NOTICES, ORDERS, AND RENEGOTIATION AGREEMENTS ISSUED WITH
RESPECT TO THE 11 COMPANIES NAMED IN THE THIRD ITEM OF THE MARCH 16
REQUEST, AND WITH RESPECT TO MANUFACTURERS WITH WHOM BANNERCRAFT'S
PRODUCTION COST WAS COMPARED, AS CALLED FOR BY THE FIFTH ITEM, ALL WITH
IDENTIFYING DETAILS DELETED, WERE SUPPLIED THEREWITH.  BEYOND THIS,
DOCUMENTS REQUESTED BY BANNERCRAFT WERE REFUSED. 

/6/  THESE WERE ALL DOCUMENTS THAT CONSTITUTED THE ASTRO
RENEGOTIATION REPORT FOR THE YEAR; ALL DOCUMENTS IN THE FILE THAT
ANALYZED "OR IN ANY WAY (BORE) UPON" ASTRO'S TREATMENT OF SELLING
EXPENSES; ALL FILE DOCUMENTS THAT HAD TO DO WITH "INFORMATION
RECEIVED," AS REFERRED TO IN A STATED COMMUNICATION FROM THE REGIONAL
BOARD TO ASTRO; ALL FILE DOCUMENTS THAT RELATED TO THE REASONS FOR THE
BOARD'S ORDER DENYING ASTRO'S REQUEST TO FILE AN UNTIMELY APPLICATION
FOR COMMERCIAL EXEMPTION; AND ALL RECORDS THAT HAD TO DO WITH ASTRO'S
RENEGOTIATION FOR THE YEAR "TO THE EXTENT THAT SUCH DOCUMENTS HAVE BEEN
GENERATED BY AND ARE IN THE CUSTODY OF EITHER" THE REGIONAL BOARD OR
THE BOARD ITSELF. 

/7/  DELAWARE FASTENER CORP. WAS MERGED INTO DAVID B. LILLY CO.,
INC., IN 1970 AFTER RENEGOTIATION PROCEEDINGS AS TO EACH CORPORATION
HAD BEGUN, BUT BEFORE LILLY'S SUIT WAS INSTITUTED. 

/8/  THE CORPORATIONS REQUESTED ALL COMMUNICATIONS BETWEEN THE BOARD
AND OTHER GOVERNMENTAL AGENCIES CONCERNING EITHER CORPORATION; ALL
ALL ANALYSES USED IN COMPARING EITHER OF THE CORPORATIONS "WITH OTHER
CONTRACTORS OR SUBCONTRACTORS AND REFLECTING THE FACTS RELATING TO SUCH
COMPARISONS"; ALL WRITTEN COMMUNICATIONS BETWEEN THE BOARD AND FIRMS
HOLDING RENEGOTIABLE CONTRACTS OR SUBCONTRACTS IN ANY WAY CONCERNING
EITHER OF THE CORPORATIONS AND THEIR PERFORMANCE; AND ALL INTRA-AGENCY
MEMORANDA AND WRITTEN COMMUNICATIONS CONSISTING OF RECOMMENDATIONS OR
ANALYSES PREPARED BY THE BOARD IN CONNECTION WITH THE RENEGOTIATION
PROCEEDINGS. 

/9/  "552.  PUBLIC INFORMATION; AGENCY RULES, OPINIONS, ORDERS,
RECORDS, AND PROCEEDINGS. 

"(A) EACH AGENCY SHALL MAKE AVAILABLE TO THE PUBLIC INFORMATION AS
FOLLOWS:

        .   .          .          . 

"(2) EACH AGENCY, IN ACCORDANCE WITH PUBLISHED RULES, SHALL MAKE
AVAILABLE FOR PUBLIC INSPECTION AND COPYING-- 

"(A) FINAL OPINIONS . . . 

"(B) . . . STATEMENTS OF POLICY AND INTERPRETATIONS . . . AND 

"(C) ADMINISTRATIVE STAFF MANUALS AND INSTRUCTIONS TO STAFF THAT
AFFECT A MEMBER OF THE PUBLIC; 

". . . A FINAL ORDER, OPINION, STATEMENT OF POLICY, INTERPRETATION,
OR STAFF MANUAL OR INSTRUCTION THAT AFFECTS A MEMBER OF THE PUBLIC MAY
BE RELIED ON, USED, OR CITED AS PRECEDENT BY AN AGENCY AGAINST A PARTY
OTHER THAN AN AGENCY ONLY IF-- 

"(I) IT HAS BEEN INDEXED AND EITHER MADE AVAILABLE OR PUBLISHED AS
PROVIDED BY THIS PARAGRAPH; OR

"(II) THE PARTY HAS ACTUAL AND TIMELY NOTICE OF THE TERMS THEREOF." 

/10/  IN PERTINENT PART, 552(A)(3) PROVIDES:  "ON COMPLAINT, THE
DISTRICT COURT . . . HAS JURISDICTION TO ENJOIN THE AGENCY FROM
WITHHOLDING AGENCY RECORDS AND TO ORDER THE PRODUCTION OF ANY AGENCY
RECORDS IMPROPERLY WITHHELD FROM THE COMPLAINANT.  IN SUCH A CASE THE
COURT SHALL DETERMINE THE MATTER DE NOVO AND THE BURDEN IS ON THE
AGENCY TO SUSTAIN ITS ACTION.  IN THE EVENT OF NONCOMPLIANCE WITH THE
ORDER OF THE COURT, THE DISTRICT COURT MAY PUNISH FOR CONTEMPT THE
RESPONSIBLE EMPLOYEE . . . EXCEPT AS TO CASES THE COURT CONSIDERS OF
GREATER IMPORTANCE, PROCEEDINGS BEFORE THE DISTRICT COURT, AS
AUTHORIZED BY THIS PARAGRAPH, TAKE PRECEDENCE ON THE DOCKET OVER ALL
OTHER CAUSES AND SHALL BE ASSIGNED FOR HEARING AND TRIAL AT THE
EARLIEST PRACTICABLE DATE AND EXPEDITED IN EVERY WAY." 

/11/  PREDECESSOR RENEGOTIATION STATUTES ARE CITED AND DESCRIBED IN
LICHTER V. UNITED STATES, 334 U.S. 742, 745 N. 1 (1948). 

/12/  SECTION 105(C), 50 U.S.C. APP. 1215(C), PROVIDES THAT, IN THE
ABSENCE OF FRAUD, MALFEASANCE, OR WILLFUL MISREPRESENTATION, ALL
LIABILITIES OF THE CONTRACTOR FOR EXCESSIVE PROFITS SHALL BE DISCHARGED
IF THE "PROCEEDING IS NOT COMMENCED PRIOR TO THE EXPIRATION OF ONE YEAR
FOLLOWING THE DATE UPON WHICH SUCH STATEMENT IS SO FILED." 

/13/  THE RESPONDENTS IN THE PRESENT LITIGATION HAVE AGREED TO
SUSPEND THEIR LIMITATION PERIODS PENDING RESOLUTION OF THE FOIA
CLAIMS.  SEE 151 U.S. APP. D.C. 174, 190 N. 12, 466 F.2D 345, 361 N. 12
(1972). 

/14/  UNTIL JULY 1971 THE PROCEEDING WAS TO BE INITIATED IN THE TAX
COURT.  65 STAT. 21. 

/15/  THE CFR CITATIONS THROUGHOUT THIS SECTION OF THIS OPINION ARE
TO THE 1972 VERSION OF RENEGOTIATION BOARD PROCEDURES IN EFFECT AT THE
TIME OF THE COURT OF APPEALS' DECISION.  THE REGULATIONS WERE AMENDED
SUBSTANTIALLY IN THE FALL OF 1972.  SEE 32 CFR PTS.  1400 - 1599
(1973). 

/16/  THE COURT OF APPEALS IN THE PRESENT LITIGATION AND OTHER
FEDERAL DECISIONS HAVE RECOGNIZED THE GENERAL APPLICABILITY OF THE FOIA
TO THE RENEGOTIATION BOARD.  SEE FISHER V. RENEGOTIATION BOARD, 153
U.S. APP. D.C. 398, 473 F.2D 109 (1972); LYKES BROS. S. S. CO. V.
UNITED STATES, 198 CT. CL. 312, 327, 459 F.2D 1393, 1401 (1972);
GRUMMAN AIRCRAFT ENGINEERING CORP. V. RENEGOTIATION BOARD, 138 U.S.
APP. D.C. 147, 425 F.2D 578 (1970). 

/17/  AMONG OTHER DECISIONS EMPHASIZING THIS GENERAL PUBLIC PURPOSE
OF THE ACT ARE ETHYL CORP. V. EPA, 478 F.2D 47, 48 (CA4 1973); STERLING
DRUG, INC. V. FTC, 146 U.S. APP. D.C. 237, 242, 450 F.2D 698, 703
(1971); SOUCIE V. DAVID, 145 U.S. APP. D.C. 144, 153, 448 F.2D 1067,
1067 (1971); LAMORTE V. MANSFIELD, 438 F.2D 448, 451 (CA2 1971);
BRISTOL-MYERS CO. V. FTC, 138 U.S. APP. D.C. 22, 25, 424 F.2D 935, 938,
CERT. DENIED, 400 U.S. 824 (1970).     /18/  S. 1666, 88TH CONG., 2D
SESS., WAS PASSED BY THE SENATE ON JULY 28, 1964, 110 CONG. REC. 17086
17089, AND RECONSIDERED AND PASSED AGAIN ON JULY 31, 1964, 110 CONG.
REC. 17666 - 17668.  THERE WAS INSUFFICIENT TIME, HOWEVER, FOR FULL
CONSIDERATION BY THE HOUSE.  S. 1160, 89TH CONG., 1ST SESS., THEN
BECAME THE FOIA AND "IS SUBSTANTIALLY S. 1666."  S. REP. NO. 813, 89TH
CONG., 1ST SESS., 4 (1965).  THERE WAS NO CHANGE IN THE REMEDY
PROVIDED. 

THE SENATE REPORT WHICH ACCOMPANIES S. 1666 EXPLAINS, "THE PROVISION
FOR ENJOINING AN AGENCY FROM FURTHER WITHHOLDING IS PLACED IN THE
STATUTE TO MAKE CLEAR THAT THE DISTRICT COURTS SHALL HAVE THIS POWER." 
S. REP. NO. 1219, 88TH CONG., 2D SESS., 7 (1964).  IN DISCUSSING THE
CONTEMPT PROVISION, THE REPORT STATES, "THIS IS ANOTHER ADDITION WHICH
HAS BEEN MADE TO AVOID ANY POSSIBLE MISUNDERSTANDING AS TO THE COURTS'
POWER.  IBID. 

/19/  SEE NOTE, 1973 U. ILL. L. F. 180, 191 (1973); NOTE, 51 TEX. L.
REV. 757, 765 (1973). 

/20/  "THE COMMITTEE HAS PROVIDED THAT ANY CONTRACTOR AGGRIEVED BY A
DETERMINATION OF EXCESSIVE PROFITS UNDER THE OLD LAW, WHETHER HE WAS
COOPERATIVE AND SIGNED A CLOSING AGREEMENT OR NOT, MAY HAVE A REVIEW OF
THAT DETERMINATION IN THE TAX COURT OF THE UNITED STATES AND IN THE
REVIEW HAVE ALL ISSUES, CONSTITUTIONAL AND OTHERWISE, DECIDED BY THE
COURT."  (REMARKS OF CONG. DISNEY.) 

/21/  THE COURT OF CLAIMS HAS BEEN DESCRIBED, "BY VIRTUE OF ITS ROLE
IN THE RENEGOTIATION PROCESS AND ITS GENERAL EXPERTISE IN THE FIELD OF
GOVERNMENT CONTRACTS," AS BEING "UNIQUELY QUALIFIED TO SUPERVISE
DISCOVERY AGAINST THE RENEGOTIATION BOARD."  NOTE, 41 GEO. WASH. L.
REV. 1072, 1084 (1973). 

/22/  IN THIS LITIGATION THERE IS NO ALLEGATION OR EVIDENCE THAT THE
BOARD WAS NEGOTIATING IN BAD FAITH OR ACTING ULTRA VIRES.  WE THEREFORE
ARE NOT NOW CONCERNED WITH THE SITUATION WHERE ALLEGATIONS OR EVIDENCE
OF THAT KIND ARE PRESENT. 

/23/  SINCE THE INSTITUTION OF THESE SUITS, THE BOARD HAS AMENDED
ITS REGULATIONS TO EXPAND THE DISCOVERY AVAILABLE TO CONTRACTORS.  SEE
32 CFR 1470.3, 1472.3 TO 1472.6, 1474.3 TO 1474.5 (1973). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART, MR. JUSTICE
MARSHALL, AND MR. JUSTICE POWELL CONCUR, DISSENTING. 

THE COURT REVERSES THE COURT OF APPEALS, SAYING THAT RESPONDENT
CONTRACTORS HAD NOT EXHAUSTED THEIR ADMINISTRATIVE REMEDIES.  AT ISSUE
IS WHETHER DATA IN POSSESSION OF THE RENEGOTIATION BOARD AND RELEVANT
TO THE CONTROVERSY BETWEEN RESPONDENTS AND THAT BOARD SHOULD BE
DISCLOSED TO RESPONDENTS.  THAT RAISES A QUESTION UNDER THE FREEDOM OF
INFORMATION ACT.  IT IS, I SUBMIT, CLEAR THAT RESPONDENTS HAD EXHAUSTED
EVERY KNOWN WAY TO OBTAIN THOSE DATA THROUGH ADMINISTRATIVE CHANNELS. 
NOTHING REMAINED TO BE DONE AT THAT LEVEL.  THE DISTRICT COURT IS THE
ENFORCEMENT ARM OF THE FOIA.  TODAY'S DECISION, HOWEVER, SAYS THAT
COURT CANNOT ACT.  HENCE RESPONDENTS ARE WITHOUT REMEDY.  THE END
RESULT IS TO MAKE THE FOIA A DEAD LETTER IN THIS AREA.  HENCE MY
DISSENT. 

THE NATURE OF THE SO-CALLED ADMINISTRATIVE LAW ASPECTS OF THE
PROBLEMS UNDER THE RENEGOTIATION ACT IS UNIQUE.  THE AIM, OF COURSE, IS
THE ELIMINATION OF EXCESSIVE PROFITS OF CONTRACTORS AND SUBCONTRACTORS
IN THE NATIONAL DEFENSE PROGRAM, 50 U.S.C. APP. 1211.  DETAILED
FINANCIAL INFORMATION MUST BE FILED WITH THE RENEGOTIATION BOARD, ID.,
1215(E)(1).  IF ON THE BASIS OF THOSE DATA THE BOARD DECIDES TO
PROCEED, IT REFERS THE CASE TO A REGIONAL RENEGOTIATION BOARD WHICH
DETERMINES TENTATIVELY THE AMOUNT OF EXCESSIVE PROFITS, 32 CFR
1472.3(E).  /1/  A CONFERENCE WITH THE CONTRACTOR IS THEN ARRANGED.  IT
MAY AGREE WITH THE REGIONAL BOARD'S DETERMINATION OR CONTEST IT.  IF
THE LATTER, A SECOND CONFERENCE IS HELD WITH A PANEL OF THE REGIONAL
BOARD WHICH HEARS THE ARGUMENTS OF THE CONTRACTOR AND SUBMITS ITS
RECOMMENDATIONS TO THE REGIONAL BOARD WHICH MAY BE FOR A GREATER OR
LESSER AMOUNT THAN THE ORIGINAL TENTATIVE DETERMINATION, 32 CFR
1472.3(F), (H), (I).  THEREUPON THE REGIONAL BOARD MAKES ITS
RECOMMENDATION, ID., 1472.3(I).  IF THE CONTRACTOR IS STILL
DISSATISFIED, IT CAN APPEAL TO THE RENEGOTIATION BOARD ITSELF.  IN THAT
EVENT THE CASE IS ASSIGNED TO A DIVISION OF THE BOARD WHICH IS NOT
BOUND BY OR LIMITED TO ANY FINDING OR DETERMINATION OF THE REGIONAL
BOARD, ID., 1472.4(B).  THE DIVISION STUDIES THE CASE DE NOVO AND MAKES
A RECOMMENDATION TO THE BOARD WHICH THEN MAKES A DETERMINATION GREATER
THAN, EQUAL TO, OR LESS THAN ANY OF THE PRIOR DETERMINATIONS, ID.,
1472.4(D).  EVEN THEN THE RENEGOTIATION PROCESS CONTINUES, THE BOARD
SEEKING TO OBTAIN THE CONTRACTOR'S VOLUNTARY AGREEMENT.  ONLY IF THAT
EFFORT FAILS IS A FINAL ORDER DETERMINING THE AMOUNT OF EXCESSIVE
PROFITS MADE, IBID. 

THAT IS THE END OF THE ADMINISTRATIVE ROAD; BUT THE CONTRACTOR STILL
HAS AN APPEAL TO THE COURT OF CLAIMS WHICH MAY REDETERMINE DE NOVO WHAT
THE EXCESSIVE PROFITS ARE, 50 U.S.C. APP. 1218 (1970 ED., SUPP. II);
AND FROM THE COURT OF CLAIMS CERTIORARI MAY BE SOUGHT HERE, ID., 1218A
(1970 ED., SUPP. II). 

THE HISTORY OF THE ACT MAKES PLAIN WHAT CAN BE INFERRED FROM THE
NATURE OF THE ADMINISTRATIVE PROCESS JUST DESCRIBED--THAT CONGRESS
CHOSE NEGOTIATION, NOT CONFRONTATION OR TRADITIONAL ADJUDICATION, AS
THE DESIRABLE ROUTE.  THE ACT REQUIRES THE BOARD TO "ENDEAVOR TO MAKE
AN AGREEMENT WITH THE CONTRACTOR OR SUBCONTRACTOR WITH RESPECT TO THE
ELIMINATION OF EXCESSIVE PROFITS," 50 U.S.C. APP. 1215(A).  THE
PRESSURE IS ON THE CONTRACTOR TO SETTLE, AS AT EACH SUCCESSIVE STEP IN
THE PROCEDURE ITS LIABILITY MAY BE INCREASED.  THE STANDARDS ARE RATHER
VAGUE AND IMPRECISE, 50 U.S.C. APP. 1213(E)(1) - (6), /2/  THE
REGULATIONS STATING THAT "REASONABLE PROFITS WILL BE DETERMINED IN
EVERY CASE BY OVER-ALL EVALUATION OF THE PARTICULAR FACTORS PRESENT AND
NOT BY THE APPLICATION OF ANY FIXED FORMULA WITH RESPECT TO RATE OF
PROFIT, OR OTHERWISE," 32 CFR 1460.8.  THE VAGUENESS OF THE STANDARDS
AND THE RISK OF AN INCREASE IN LIABILITY AT EVERY LEVEL OF THE
ADMINISTRATIVE PROCESS HAVE A POWERFUL COERCIVE INFLUENCE. 
APPROXIMATELY 88% OF THE BOARD'S CASES ARE ENDED BY VOLUNTARY
AGREEMENT, COERCIVE ORDERS BEING ENTERED IN ONLY 12% OF THE CASES.  SEE
FIFTEENTH ANNUAL REPORT, RENEGOTIATION BOARD 13 (1970). 

IN THE THREE CASES INVOLVED IN THIS LITIGATION THE DISTRICT COURT
ENTERED ITS STAY ORDER BEFORE THE CONTRACTORS HAD RUN THE GANTLET OF
THE ADMINISTRATIVE PROCESS IN THE LIMITED SENSE THAT EACH OF THEM HAD
ANOTHER OPPORTUNITY TO NEGOTIATE A LOWER SETTLEMENT WITH THE BOARD, NOT
COUNTING A DE NOVO HEARING BEFORE THE COURT OF CLAIMS. 

THE DOCUMENTS WHICH THE CONTRACTORS WANT ARE IN POSSESSION OF THE
BOARD.  THESE DOCUMENTS, IT IS SAID, WILL REVEAL THE STRENGTH OR
WEAKNESS OF THE BOARD'S CASE AGAINST THE CONTRACTORS AND THE FACTS OR
ASSUMPTIONS ON WHICH THE BOARD RELIES IN ASSESSING LIABILITY.  WITHOUT
THOSE DOCUMENTS, IT IS SAID, ANY MEANINGFUL NEGOTIATION, ENVISIONED BY
THE ACT, IS DIFFICULT OR IMPOSSIBLE.  FUTURE DE NOVO REVIEW IS NOT
MEANINGFUL, IT IS SAID, SINCE THE CONTRACTORS ARE COMPLETELY IN THE
DARK AS TO THE PRACTICAL CONSIDERATIONS WHICH COULD END THE DISPUTE, IF
THE DOCUMENTS WERE MADE AVAILABLE.  DISCLOSURE OF THE DOCUMENTS AIDS
NEGOTIATION, WHICH IS THE AIM OF THE ACT, AND DISCLOSURE IS NECESSARY
AND APPROPRIATE TO CARRY OUT THE PURPOSES OF THE ACT. 

THE COURT PROPERLY HOLDS THAT THE RENEGOTIATION BOARD IS AN "AGENCY"
WITHIN THE MEANING OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C.
552(A).  THE COURT ALSO PROPERLY HOLDS THAT 552(A)(3) OF THE ACT, WHICH
GRANTS THE DISTRICT COURT JURISDICTION "TO ENJOIN THE AGENCY FROM
WITHHOLDING AGENCY RECORDS AND TO ORDER THE PRODUCTION OF ANY AGENCY
RECORDS IMPROPERLY WITHHELD FROM THE COMPLAINANT," MAKES THAT COURT THE
ENFORCEMENT ARM OF THE FOIA.  BUT IT DENIES RELIEF HERE ON THE GROUND
THAT THESE CONTRACTORS ARE OBLIGED TO PURSUE THEIR "ADMINISTRATIVE
REMEDY" BEFORE GOING TO COURT FOR AN ENFORCEMENT ORDER. 

THE COURT RELIES ON AIRCRAFT & DIESEL EQUIPMENT CORP. V. HIRSCH, 331
U.S. 752, AND OTHER DECISIONS OF THAT VINTAGE WHICH ESTABLISHED A
JUDICIAL "HANDS OFF" POLICY IN RENEGOTIATION CASES UNTIL THE CASE HAD
REACHED THE TAX COURT (NOW THE COURT OF CLAIMS) STAGE.  BUT THOSE CASES
ANTEDATED THE FOIA.  THAT ACT, CONTRARY TO WHAT THE COURT SAYS, HAD AS
ONE OF ITS PURPOSES "DISCOVERY FOR LITIGATION PURPOSES."  CONGRESS WAS
CONCERNED NOT ONLY WITH THE PRESS AND THE GENERAL PUBLIC WHEN IT LIFTED
THE VEIL OF SECRECY SURROUNDING FEDERAL AGENCIES BUT ALSO WITH
LITIGANTS.  ACCORDING TO THE SENATE REPORT, THE NEW FOIA WAS DESIGNED
IN PART TO "PREVENT A CITIZEN FROM LOSING A CONTROVERSY WITH AN AGENCY
BECAUSE OF SOME OBSCURE AND HIDDEN ORDER OR OPINION WHICH THE AGENCY
KNOWS ABOUT BUT WHICH HAS BEEN UNAVAILABLE TO THE CITIZEN SIMPLY
BECAUSE HE HAD NO WAY IN WHICH TO DISCOVER IT,"  S. REP. NO. 813, 89TH
CONG., 1ST SESS., 7. 

THE FOIA DEALS WITH PROBLEMS OF DISCOVERY TO USE A LAWYER'S TERM,
AND IT DOES NOT LEAVE THE FORMULATION OF PRECISE RULES OF DISCOVERY
EXCLUSIVELY TO THE AGENCIES THEMSELVES BUT, AS NOTED, MAKES THE
DISTRICT COURT THE ENFORCEMENT ARM OF THE ACT. 

EXHAUSTION OF ADMINISTRATIVE REMEDIES HAS SKEINS OF VARIOUS COLORS,
MCKART V. UNITED STATES, 395 U.S. 185, 193 - 194.  ORDINARILY COURTS DO
NOT INTERFERE UNTIL THE AGENCY HAS COMPLETED ITS ACTION, ID., AT 194,
"OR ELSE HAS CLEARLY EXCEEDED ITS JURISDICTION," IBID.  THE PRESENT
CASE DOES NOT ENTAIL SUPPLANTING ADMINISTRATIVE EXPERTISE ON THE
MERITS.  THE ISSUES TENDERED CONCERN ONLY ADMINISTRATIVE PROCEDURE. 

THE COURT ERRS IN SAYING THAT THE CONTRACTORS DID NOT EXHAUST THEIR
ADMINISTRATIVE REMEDIES.  THEY STRENUOUSLY SOUGHT THE INFORMATION
MANDATED BY THE FOIA AND EXHAUSTED ALL ADMINISTRATIVE PROCEDURE FOR
OBTAINING IT.  THAT RIGHT TO FULL DISCLOSURE, IF NOT GRANTED NOW, IS
FOREVER LOST.  FOR AS THESE CONTRACTORS SEEK RELIEF AT A HIGHER TIER OF
THE ADMINISTRATIVE PROCESS, THE REVIEWING BODY WILL NOT CONSIDER
WHETHER THE CONTRACTORS COULD HAVE NEGOTIATED SETTLEMENTS OF A LESSER
AMOUNT IF THEY HAD HAD ACCESS TO THE DOCUMENTS WHOSE DISCOVERY IS
INVOLVED HERE.  AS JUDGE J. SKELLY WRIGHT SAID BELOW: 

"(IT SHOULD BE APPARENT HERE THAT IF THE CONTRACTORS ARE TO BE
GRANTED RELIEF AT ALL THEY MUST HAVE IT NOW BEFORE THE ADMINISTRATIVE
MOMENTUM CARRIES THEIR CASES BEYOND THE POINT WHERE THE HARM CAN BE
UNDONE.  IF WE TAKE CONGRESS' DECLARATION OF PURPOSE SERIOUSLY, THEN
THE PARTIES ARE SUPPOSED TO NEGOTIATE OVER EXCESS PROFITS AT THE LOWER
ADMINISTRATIVE LEVELS.  THE SEEMINGLY ENDLESS DE NOVO REVIEWS WERE
INTENDED TO MAKE THE NEGOTIATING PROCESS WORK, NOT TO PROVIDE A
SUBSTITUTE FOR NEGOTIATION.  IF THE NEGOTIATING PROCESS FAILS TO OCCUR,
THE OPPORTUNITY IS LOST FOREVER.  TO SAY THAT COMPULSORY AWARDS IMPOSED
BY THE BOARD OR THE COURT OF CLAIMS AT THE END OF THE PROCESS PROVIDE
AN ADEQUATE REMEDY IS TO IGNORE THE DIFFERENCE BETWEEN AN AGREEMENT
FREELY ARRIVED AT, AS PREFERRED BY CONGRESS, AND A JUDGMENT IMPOSED BY
A COURT OF LAW."  151 U.S. APP. D.C. 174, 186, 466 F.2D 345, 357. 

THE PROCEEDING IN THE COURT OF CLAIMS PROSCRIBES REVIEW OF THE
BOARD.  TITLE 50 U.S.C. APP. 1218 (1970 ED., SUPP. II) STATES: 

"A PROCEEDING BEFORE THE COURT OF CLAIMS TO FINALLY DETERMINE THE
AMOUNT, IF ANY, OF EXCESSIVE PROFITS SHALL NOT BE TREATED AS A
PROCEEDING TO REVIEW THE DETERMINATION OF THE BOARD, BUT SHALL BE
TREATED AS A PROCEEDING DE NOVO."  THERE IS NO POWER, AS I SEE IT, FOR
THE COURT OF CLAIMS TO REMAND THE CASE TO THE BOARD TO CURE ANY
IRREGULARITY IN ITS PROCEDURES.  IF THESE CONTRACTORS ARE TO HAVE THE
REMEDY OF FULL DISCLOSURE, IT IS NOW OR NEVER. 

A PROCEDURE THAT ACCELERATES SETTLEMENTS FURTHERS THE POLICY OF THE
RENEGOTIATION ACT.  THE BOARD JUDGES THE PROFITS OF THE CONTRACTORS
INVOLVED IN THE PRESENT CASE WITH THE PROFITS OF OTHER CONTRACTORS IN
DETERMINING WHETHER THEIR PROFITS ARE EXCESSIVE.  THE RELATIVE PRICES,
COSTS, AND PROFITS OF THOSE OTHER COMPANIES ARE GERMANE TO THE ULTIMATE
ISSUE TO BE RESOLVED.  ONE OF THESE CONTRACTORS HAS A LOW "FRONT
OFFICE" OVERHEAD, AS THE EXECUTIVE OFFICER IS THE PRESIDENT WHO HAS
ONLY A SECRETARY.  THE REST OF THE EMPLOYEES ARE ENGAGED IN
PRODUCTION.  THE CONTRACTOR WHO HAS A LOW "FRONT OFFICE" EXPENSE IS
PENALIZED FOR EFFICIENCY, IF ITS PROFITS ARE REDUCED TO THE SCALE
ALLOWED CONTRACTORS WHO HAVE A HIGH "FRONT OFFICE" EXPENSE.  THE BOARD
IN ITS REGULATIONS UNDER FOIA MAKES "AVAILABLE FOR PUBLIC INSPECTION
AND COPYING SUMMARIES OF FACTS AND REASONS ISSUED BY THE BOARD," 32 CFR
1480.5(A).  BUT AN AGENCY MAKING DECISIONS HAS NO RIGHT TO MAKE SECRET
THE BASIS OF THOSE DECISIONS, /3/  IF THE FOIA IS TO HAVE ANY REAL
MEANING IN THE ACTIVITIES OF THE RENEGOTIATION BOARD.  IF A CONTRACTOR
DOES NOT KNOW THE REASONS WHY THE BOARD OF ANY OF ITS AGENCIES CUTS THE
PROFITS OF A CONTRACTOR 95%, IT HAS NO MEANINGFUL CRITERIA TO DETERMINE
WHETHER IT SHOULD SETTLE WITH THE BOARD OR CONTINUE TO PURSUE ITS
REMEDIES UP THE ESCALATOR OF THE HIERARCHY.  IT IS AS IF A COURT COULD
RULE FOR THE PLAINTIFF OR FOR THE DEFENDANT WITHOUT EVER HAVING TO
DISCLOSE ITS REASONS. 

THE RESULT OF TODAY'S DECISION IS TO PUT THE CITIZEN IN A GAME OF
"BLIND MAN'S BLUFF" WITH THE RENEGOTIATION BOARD.  ENFORCEMENT OF THE
POLICY OF FULL DISCLOSURE UNDER THE FOIA IS NO INTRUSION IN THE
DETERMINATION OF THE MERITS OF THE CONTROVERSY BEFORE THE BOARD.  THE
EXPERTISE OF THE BOARD DOES NOT RELATE TO THE FOIA BUT ONLY TO THE
RENEGOTIATION ACT.  THE FOIA MERELY DESCRIBES SOME OF THE PROCEDURE TO
BE FOLLOWED BY THE BOARD.  AIRCRAFT CONCERNED THE INTRUSION OF THE
JUDICIARY INTO THE ADMINISTRATIVE PROCESS BY A SUIT TO DECLARE THE
WHOLE RENEGOTIATING PROCEDURE UNCONSTITUTIONAL PRIOR TO ANY
ADJUDICATION OF THE MERITS OF THE CONTRACTOR'S CLAIM.  GRANTING THE
RELIEF ASKED IN THAT CASE WOULD HAVE GUTTED THE STATUTES.  GRANTING THE
RELIEF HERE WOULD MERELY MAKE THE RULES OF DISCOVERY, ESTABLISHED BY
CONGRESS, APPLICABLE TO THE RENEGOTIATION BOARD.  DENIAL OF THE RELIEF
ESTABLISHES A REGIME OF SECRECY WHEN CONGRESS HAS DEMANDED DISCLOSURE
AND GIVES THE RENEGOTIATION BOARD A DEGREE OF ADMINISTRATIVE ABSOLUTION
/4/  AT WAR WITH THE PHILOSOPHY OF THE FOIA.     THE TREND AT THE
FEDERAL LEVEL HAS BEEN THE EVOLUTION OF ADMINISTRATIVE AGENCIES AS
PRINCIPALITIES OF POWER.  THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT.
237, WAS PASSED AS AN ANTIDOTE TO THAT DEVELOPMENT.  IT CONTAINED A
PROVISION IN 3, 5 U.S.C. 1002 (1964 ED.), FOR DISCLOSURE OF INFORMATION
BY THE AGENCIES.  BUT IT WAS SOON CRITICIZED BECAUSE IT WAS "FULL OF
LOOPHOLES WHICH ALLOW AGENCIES TO DENY LEGITIMATE INFORMATION TO THE
PUBLIC.  IT HAS BEEN SHOWN INNUMERABLE TIMES THAT INFORMATION IS OFTEN
WITHHELD ONLY TO COVER UP EMBARRASSING MISTAKES OR IRREGULARITIES AND
JUSTIFIED BY SUCH PHRASES . . . AS--'REQUIRING SECRECY IN THE PUBLIC
INTEREST,' 'REQUIRED FOR GOOD CAUSE TO BE HELD CONFIDENTIAL,' AND
'PROPERLY AND DIRECTLY CONCERN.'"  S. REP. NO. 1219, 88TH CONG., 2D
SESS., 8.  AS THE HOUSE REPORT STATED IN SUPPORT OF SUPPLANTING 3 OF
THE ADMINISTRATIVE PROCEDURE ACT WITH THE FOIA "GOVERNMENT AGENCIES
WHOSE MISTAKES CANNOT BEAR PUBLIC SCRUTINY HAVE FOUND 'GOOD CAUSE' FOR
SECRECY."  /5/  H.R. REP. NO. 1497, 89TH CONG., 2D SESS., 6.  AS
RESPECTS THE ROLE OF THE COURTS THE HOUSE REPORT STATED: 

     "THE PROCEEDINGS ARE TO BE DE NOVO SO THAT THE COURT CAN

  CONSIDER THE PROPRIETY OF THE WITHHOLDING INSTEAD OF BEING

  RESTRICTED TO JUDICIAL SANCTIONING OF AGENCY DISCRETION.  THE

  COURT WILL HAVE AUTHORITY WHENVER IT CONSIDERS SUCH ACTION

  EQUITABLE AND APPROPRIATE TO ENJOIN THE AGENCY FROM WITHHOLDING

  ITS RECORDS AND TO ORDER THE PRODUCTION OF AGENCY RECORDS

  IMPROPERLY WITHHELD.  THE BURDEN OF PROOF IS PLACED UPON THE

  AGENCY WHICH IS THE ONLY PARTY ABLE TO JUSTIFY THE WITHHOLDING. 

  A PRIVATE CITIZEN CANNOT BE ASKED TO PROVE THAT AN AGENCY HAS

  WITHHELD INFORMATION IMPROPERLY BECAUSE HE WILL NOT KNOW THE

  REASONS FOR THE AGENCY ACTION."  ID., AT 9. 

THE RELUCTANCE OF THE COURT TO REQUIRE THIS ADMINISTRATIVE AGENCY TO
LIVE UNDER THE LAW CALLS TO MIND THE ADMONITION OF MR. JUSTICE STONE
SPEAKING FOR THE COURT IN UNITED STATES V. MORGAN, 307 U.S. 183, 191: 

"COURT AND AGENCY ARE THE MEANS ADOPTED TO ATTAIN THE PRESCRIBED
END, AND SO FAR AS THEIR DUTIES ARE DEFINED BY THE WORDS OF THE
STATUTE, THOSE WORDS SHOULD BE CONSTRUED SO AS TO ATTAIN THAT END
THROUGH COORDINATED ACTION.  NEITHER BODY SHOULD REPEAT IN THIS DAY THE
MISTAKE MADE BY THE COURTS OF LAW WHEN EQUITY WAS STRUGGLING FOR
RECOGNITION AS AN AMELIORATING SYSTEM OF JUSTICE; NEITHER CAN RIGHTLY
BE REGARDED BY THE OTHER AS AN ALIEN INTRUDER, TO BE TOLERATED IF MUST
BE, BUT NEVER TO BE ENCOURAGED OR AIDED BY THE OTHER IN THE ATTAINMENT
OF THE COMMON AIM." 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  THE CFR CITATIONS THROUGHOUT THIS OPINION ARE TO THE
REGULATIONS WHICH WERE IN EFFECT IN 1970.  THE REGULATIONS WERE
SUBSTANTIALLY AMENDED IN THE FALL OF 1972. 

/2/  THE ACT PROVIDES:  "IN DETERMINING EXCESSIVE PROFITS FAVORABLE
RECOGNITION MUST BE GIVEN TO THE EFFICIENCY OF THE CONTRACTOR OR
SUBCONTRACTOR, WITH PARTICULAR REGARD TO ATTAINMENT OF QUANTITY AND
QUALITY PRODUCTION, REDUCTION OF COSTS, AND ECONOMY IN THE USE OF
MATERIALS, FACILITIES, AND MANPOWER; AND IN ADDITION, THERE SHALL BE
TAKEN INTO CONSIDERATION THE FOLLOWING FACTORS: 

"(1) REASONABLENESS OF COSTS AND PROFITS, WITH PARTICULAR REGARD TO
VOLUME OF PRODUCTION, NORMAL EARNINGS, AND COMPARISON OF WAR AND
PEACETIME PRODUCTS; 

"(2) THE NET WORTH, WITH PARTICULAR REGARD TO THE AMOUNT AND SOURCE
OF PUBLIC AND PRIVATE CAPITAL EMPLOYED; 

"(3) EXTENT OF RISK ASSUMED, INCLUDING THE RISK INCIDENT TO
REASONABLE PRICING POLICIES; 

"(4) NATURE AND EXTENT OF CONTRIBUTION TO THE DEFENSE EFFORT,
INCLUDING INVENTIVE AND DEVELOPMENTAL CONTRIBUTION AND COOPERATION WITH
THE GOVERNMENT AND OTHER CONTRACTORS IN SUPPLYING TECHNICAL
ASSISTANCE; 

"(5) CHARACTER OF BUSINESS, INCLUDING SOURCE AND NATURE OF
MATERIALS, COMPLEXITY OF MANUFACTURING TECHNIQUE, CHARACTER AND EXTENT
OF SUBCONTRACTING, AND RATE OF TURN-OVER; 

"(6) SUCH OTHER FACTORS THE CONSIDERATION OF WHICH THE PUBLIC
INTEREST AND FAIR AND EQUITABLE DEALING MAY REQUIRE, WHICH FACTORS
SHALL BE PUBLISHED IN THE REGULATIONS OF THE BOARD FROM TIME TO TIME AS
ADOPTED." 

/3/  THE BOARD IN ITS REGULATIONS ALSO PROVIDES:  "WHEN A REGIONAL
BOARD HAS MADE . . . A FINAL RECOMMENDATION IN A CLASS A CASE, . . .
AND THE CONTRACTOR IS UNABLE TO DECIDE WHETHER TO ENTER INTO AN
AGREEMENT FOR THE REFUND OF EXCESSIVE PROFITS SO DETERMINED OR
RECOMMENDED, THE REGIONAL BOARD OR THE BOARD, AS THE CASE MAY BE, WILL
FURNISH THE CONTRACTOR A WRITTEN SUMMARY OF THE FACTS AND REASONS UPON
WHICH SUCH FINAL DETERMINATION OR RECOMMENDATION IS BASED IN ORDER TO
ASSIST THE CONTRACTOR IN DETERMINING WHETHER OR NOT IT WILL ENTER INTO
AN AGREEMENT:  PROVIDED, THAT THE CONTRACTOR REQUESTS SUCH A STATEMENT
WITHIN A REASONABLE TIME AFTER IT HAS BEEN ADVISED OF SUCH FINAL
DETERMINATION OR RECOMMENDATION, AND STATES THAT IT HAS SUBMITTED ALL
THE EVIDENCE WHICH IT BELIEVES TO BE RELEVANT TO THE RENEGOTIATION
PROCEEDINGS."  32 CFR 1477.3. 

/4/  THE HYGIENIC EFFECT OF THE ADMINISTRATIVE PROCEDURE ACT IS
ABSENT HERE BECAUSE THE RENEGOTIATION BOARD IS EXCLUDED FROM THAT ACT
BY REASON OF 50 U.S.C. APP. 1221, THE ONLY EXCEPTION BEING FOUND IN 5
U.S.C. 552, AT ISSUE IN THIS CASE. 

/5/  FOR AN ACCOUNT OF THE OPERATION OF THE FOIA BETWEEN 1967 AND
1971 SEE ARCHIBALD, ACCESS TO GOVERNMENT INFORMATION--THE RIGHT BEFORE
FIRST AMENDEMENT, IN THE FIRST AMENDMENT AND THE NEWS MEDIA, FINAL
REPORT, ANNUAL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES, JUNE
8 - 9, 1973, P. 64. 

HARRIET S. SHAPIRO ARGUED THE CAUSE FOR PETITIONER.  WITH HER ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WOOD,
WALTER H. FLEISHER, AND WILLIAM D. APPLER. 

ROBERT L. ACKERLY ARGUED THE CAUSE FOR RESPONDENTS BANNERCRAFT
CLOTHING CO., INC., ET AL. WITH HIM ON THE BRIEF WERE JAMES J.
GALLAGHER, CHARLES A. O'CONNOR III, AND DAVID V. ANTHONY.  BURTON A.
SCHWALB ARGUED THE CAUSE FOR RESPONDENT DAVID B. LILLY CO., INC. WITH
HIM ON THE BRIEF WERE MICHAEL EVAN JAFFE AND MARIAN B. HORN. 
..END :







ALEXANDER V. GARDNER-DENVER CO., 415 U.S. 36 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 72 - 5847.  ARGUED NOVEMBER 5, 1973--DECIDED FEBRUARY

           19, 1974; 466 F.2D 1209, REVERSED. 


    FOLLOWING DISCHARGE BY HIS EMPLOYER, RESPONDENT COMPANY,

  PETITIONER, A BLACK, FILED A GRIEVANCE UNDER THE

COLLECTIVE-BARGAINING AGREEMENT BETWEEN RESPONDENT AND

PETITIONER'S UNION, WHICH CONTAINED A BROAD ARBITRATION CLAUSE,

  PETITIONER ULTIMATELY CLAIMING THAT HIS DISCHARGE RESULTED FROM

  RACIAL DISCRIMINATION.  UPON REJECTION BY THE COMPANY OF

  PETITIONER'S CLAIMS, AN ARBITRATION HEARING WAS HELD, PRIOR TO

  WHICH PETITIONER FILED WITH THE COLORADO CIVIL RIGHTS COMMISSION

  A RACIAL DISCRIMINATION COMPLAINT WHICH WAS REFERRED TO THE EQUAL

  EMPLOYMENT OPPORTUNITY COMMISSION (EEOC).  THE ARBITRATOR RULED

  THAT PETITIONER'S DISCHARGE WAS FOR CAUSE.  FOLLOWING THE EEOC'S

  SUBSEQUENT DETERMINATION THAT THERE WAS NOT REASONABLE GROUND TO

  BELIEVE THAT A VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF

  1964 HAD OCCURRED, PETITIONER BROUGHT THIS ACTION IN DISTRICT

  COURT, ALLEGING THAT HIS DISCHARGE RESULTED FROM A RACIALLY

  DISCRIMINATORY EMPLOYMENT PRACTICE IN VIOLATION OF THE ACT.  THE

  DISTRICT COURT GRANTED RESPONDENT'S MOTION FOR SUMMARY JUDGMENT,

  HOLDING THAT PETITIONER WAS BOUND BY THE PRIOR ARBITRAL DECISION

  AND HAD NO RIGHT TO SUE UNDER TITLE VII.  THE COURT OF APPEALS

  AFFIRMED.  HELD:  AN EMPLOYEE'S STATUTORY RIGHT TO TRIAL DE NOVO

  UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 IS NOT FORECLOSED

  BY PRIOR SUBMISSION OF HIS CLAIM TO FINAL ARBITRATION UNDER THE

  NONDISCRIMINATION CLAUSE OF A COLLECTIVE-BARGAINING AGREEMENT. 

  PP. 44 - 60. 

     (A) TITLE VII WAS DESIGNED TO SUPPLEMENT, RATHER THAN
SUPPLANT,

EXISTING LAWS AND INSTITUTIONS RELATING TO EMPLOYMENT

DISCRIMINATION, AS MAY BE INFERRED FROM THE LEGISLATIVE HISTORY

  OF TITLE VII, WHICH MANIFESTS A CONGRESSIONAL INTENT TO ALLOW AN

  INDIVIDUAL TO PURSUE RIGHTS UNDER TITLE VII AND OTHER APPLICABLE

  STATE AND FEDERAL STATUTES.  PP. 47 - 49. 

     (B) THE DOCTRINE OF ELECTION OF REMEDIES IS INAPPLICABLE IN
THE

  PRESENT CONTEXT, WHICH INVOLVES STATUTORY RIGHTS DISTINCTLY

  SEPARATE FROM THE EMPLOYEE'S CONTRACTUAL RIGHTS, REGARDLESS OF

  THE FACT THAT VIOLATION OF BOTH RIGHTS MAY HAVE RESULTED FROM THE

  SAME FACTUAL OCCURRENCE.  PP. 49 - 51. 

     (C) BY MERELY RESORTING TO THE ARBITRAL FORUM PETITIONER DID

  NOT WAIVE HIS CAUSE OF ACTION UNDER TITLE VII; THE RIGHTS

  CONFERRED THEREBY CANNOT BE PROSPECTIVELY WAIVED AND FORM NO PART

  OF THE COLLECTIVE-BARGAINING PROCESS.  PP. 51 - 52. 

     (D) THE ARBITRATOR'S AUTHORITY IS CONFINED TO RESOLUTION OF

  QUESTIONS OF CONTRACTUAL RIGHTS, REGARDLESS OF WHETHER THEY

  RESEMBLE OR DUPLICATE TITLE VII RIGHTS.  PP. 52 - 54. 

     (E) IN INSTITUTING A TITLE VII ACTION, THE EMPLOYEE IS NOT

  SEEKING REVIEW OF THE ARBITRATOR'S DECISION AND THUS GETTING (AS

  THE DISTRICT COURT PUT IT) "TWO STRINGS TO HIS BOW WHEN THE

  EMPLOYER HAS ONLY ONE," BUT IS ASSERTING A RIGHT INDEPENDENT OF

  THE ARBITRATION PROCESS THAT THE STATUTE GIVES TO EMPLOYEES, THE

  ONLY POSSIBLE VICTIMS OF DISCRIMINATORY EMPLOYMENT PRACTICES.  P.

  54. 

     (F) PERMITTING AN EMPLOYEE TO RESORT TO THE JUDICIAL FORUM

  AFTER ARBITRATION PROCEDURES HAVE BEEN FOLLOWED DOES NOT

  UNDERMINE THE EMPLOYER'S INCENTIVE TO ARBITRATE, AS MOST

  EMPLOYERS WILL REGARD THE BENEFITS FROM A NO-STRIKE PLEDGE IN THE

  ARBITRATION AGREEMENT AS OUTWEIGHING ANY COSTS RESULTING FROM

  GIVING EMPLOYEES AN ARBITRAL ANTIDISCRIMINATION REMEDY IN

  ADDITION TO THEIR TITLE VII JUDICIAL REMEDY.  PP. 54 - 55. 

     (G) A POLICY OF DEFERRAL BY FEDERAL COURTS TO ARBITRAL

  DECISIONS (AS OPPOSED TO ADOPTION OF A PRECLUSION RULE) WOULD NOT

  COMPORT WITH THE CONGRESSIONAL OBJECTIVE THAT FEDERAL COURTS

  SHOULD EXERCISE THE FINAL RESPONSIBILITY FOR ENFORCEMENT OF TITLE

  VII AND WOULD LEAD TO:  THE ARBITRATOR'S EMPHASIS ON THE LAW OF

  THE SHOP RATHER THAN THE LAW OF THE LAND; FACTFINDING AND OTHER

  PROCEDURES LESS COMPLETE THAN THOSE FOLLOWED IN A JUDICIAL FORUM;

  AND PERHAPS EMPLOYEES BYPASSING ARBITRATION IN FAVOR OF

  LITIGATION.  PP. 55 - 59. 

     (H) IN CONSIDERING AN EMPLOYEE'S CLAIM, THE FEDERAL COURT MAY

  ADMIT THE ARBITRAL DECISION AS EVIDENCE AND ACCORD IT SUCH WEIGHT

  AS MAY BE APPROPRIATE UNDER THE FACTS AND CIRCUMSTANCES OF EACH

  CASE.  PP. 59 - 60. 

     POWELL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE PROPER RELATIONSHIP BETWEEN FEDERAL COURTS AND
THE GRIEVANCE-ARBITRATION MACHINERY OF COLLECTIVE-BARGAINING AGREEMENTS
IN THE RESOLUTION AND ENFORCEMENT OF AN INDIVIDUAL'S RIGHTS TO EQUAL
EMPLOYMENT OPPOTUNITIES UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, 78 STAT. 253, 42 U.S.C. 2000E ET SEQ. SPECIFICALLY, WE MUST
DECIDE UNDER WHAT CIRCUMSTANCES, IF ANY, AN EMPLOYEE'S STATUTORY RIGHT
TO A TRIAL DE NOVO UNDER TITLE VII MAY BE FORECLOSED BY PRIOR
SUBMISSION OF HIS CLAIM TO FINAL ARBITRATION UNDER THE
NONDISCRIMINATION CLAUSE OF A COLLECTIVE-BARGAINING AGREEMENT. 

        I 

IN MAY 1966, PETITIONER HARRELL ALEXANDER, SR., A BLACK, WAS HIRED
BY RESPONDENT GARDNER-DENVER CO. (THE COMPANY) TO PERFORM MAINTENANCE
WORK AT THE COMPANY'S PLANT IN DENVER, COLORADO.  IN JUNE 1968,
PETITIONER WAS AWARDED A TRAINEE POSITION AS A DRILL OPERATOR.  HE
REMAINED AT THAT JOB UNTIL HIS DISCHARGE FROM EMPLOYMENT ON SEPTEMBER
29, 1969.  THE COMPANY INFORMED PETITIONER THAT HE WAS BEING DISCHARGED
FOR PRODUCING TOO MANY DEFECTIVE OR UNUSABLE PARTS THAT HAD TO BE
SCRAPPED. 

ON OCTOBER 1, 1969, PETITIONER FILED A GRIEVANCE UNDER THE
COLLECTIVE-BARGAINING AGREEMENT IN FORCE BETWEEN THE COMPANY AND
PETITIONER'S UNION, LOCAL NO. 3029 OF THE UNITED STEELWORKERS OF
AMERICA (THE UNION).  THE GRIEVANCE STATED:  "I FEEL I HAVE BEEN
UNJUSTLY DISCHARGED AND ASK THAT I BE REINSTATED WITH FULL SENIORITY
AND PAY."  NO EXPLICIT CLAIM OF RACIAL DISCRIMINATION WAS MADE. 

UNDER ART. 4 OF THE COLLECTIVE-BARGAINING AGREEMENT, THE COMPANY
RETAINED "THE RIGHT TO HIRE, SUSPEND OR DISCHARGE (EMPLOYEES) FOR
PROPER CAUSE."  /1/  ARTICLE 5, 2, PROVIDED, HOWEVER, THAT "THERE SHALL
BE NO DISCRIMINATION AGAINST ANY EMPLOYEE ON ACCOUNT OF RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, OR ANCESTRY, /2/  AND ART. 23, 6(A),
STATED THAT "(NO EMPLOYEE WILL BE DISCHARGED, SUSPENDED OR GIVEN A
WRITTEN WARNING NOTICE EXCEPT FOR JUST CAUSE."  THE AGREEMENT ALSO
CONTAINED A BROAD ARBITRATION CLAUSE COVERING "DIFFERENCES ARISING)
BETWEEN THE COMPANY AND THE UNION AS TO THE MEANING AND APPLICATION OF
THE PROVISIONS OF THIS AGREEMENT" AND "ANY TROUBLE ARISING) IN THE
PLANT."  /3/  DISPUTES WERE TO BE SUBMITTED TO A MULTISTEP GRIEVANCE
PROCEDURE, THE FIRST FOUR STEPS OF WHICH INVOLVED NEGOTIATIONS BETWEEN
THE COMPANY AND THE UNION.  IF THE DISPUTE REMAINED UNRESOLVED, IT WAS
TO BE REMITTED TO COMPULSORY ARBITRATION.  THE COMPANY AND THE UNION
WERE TO SELECT AND PAY THE ARBITRATOR, AND HIS DECISION WAS TO BE
"FINAL AND BINDING UPON THE COMPANY, THE UNION, AND ANY EMPLOYEE OR
EMPLOYEES INVOLVED."  THE AGREEMENT FURTHER PROVIDED THAT "(THE
ARBITRATOR SHALL NOT AMEND, TAKE AWAY, ADD TO, OR CHANGE ANY OF THE
PROVISIONS OF THIS AGREEMENT, AND THE ARBITRATOR'S DECISION MUST BE
BASED SOLELY UPON AN INTERPRETATION OF THE PROVISIONS OF THIS
AGREEMENT."  THE PARTIES ALSO AGREED THAT THERE "SHALL BE NO SUSPENSION
OF WORK" OVER DISPUTES COVERED BY THE GRIEVANCE-ARBITRATION CLAUSE. 

THE UNION PROCESSED PETITIONER'S GRIEVANCE THROUGH THE ABOVE
MACHINERY.  IN THE FINAL PRE-ARBITRATION STEP, PETITIONER RAISED,
APPARENTLY FOR THE FIRST TIME, THE CLAIM THAT HIS DISCHARGE RESULTED
FROM RACIAL DISCRIMINATION.  THE COMPANY REJECTED ALL OF PETITIONER'S
CLAIMS, AND THE GRIEVANCE PROCEEDED TO ARBITRATION.  PRIOR TO THE
ARBITRATION HEARING, HOWEVER, PETITIONER FILED A CHARGE OF RACIAL
DISCRIMINATION WITH THE COLORADO CIVIL RIGHTS COMMISSION, WHICH
REFERRED THE COMPLAINT TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
ON NOVEMBER 5, 1969. 

AT THE ARBITRATION HEARING ON NOVEMBER 20, 1969, PETITIONER
TESTIFIED THAT HIS DISCHARGE WAS THE RESULT OF RACIAL DISCRIMINATION
AND INFORMED THE ARBITRATOR THAT HE HAD FILED A CHARGE WITH THE
COLORADO COMMISSION BECAUSE HE "COULD NOT RELY ON THE UNION."  THE
UNION INTRODUCED A LETTER IN WHICH PETITIONER STATED THAT HE WAS
"KNOWLEDGEABLE THAT IN THE SAME PLANT OTHERS HAVE SCRAPPED AN EQUAL
AMOUNT AND SOMETIMES IN EXCESS, BUT BY ALL LOGICAL REASONING I . . .
HAVE BEEN THE TARGET OF PREFERENTIAL DISCRIMINATORY TREATMENT."  THE
UNION REPRESENTATIVE ALSO TESTIFIED THAT THE COMPANY'S USUAL PRACTICE
WAS TO TRANSFER UNSATISFACTORY TRAINEE DRILL OPERATORS BACK TO THEIR
FORMER POSITIONS. 

ON DECEMBER 30, 1969, THE ARBITRATOR RULED THAT PETITIONER HAD BEEN
"DISCHARGED FOR JUST CAUSE."  HE MADE NO REFERENCE TO PETITIONER'S
CLAIM OF RACIAL DISCRIMINATION.  THE ARBITRATOR STATED THAT THE UNION
HAD FAILED TO PRODUCE EVIDENCE OF A PRACTICE OF TRANSFERRING RATHER
THAN DISCHARGING TRAINEE DRILL OPERATORS WHO ACCUMULATED EXCESSIVE
SCRAP, BUT HE SUGGESTED THAT THE COMPANY AND THE UNION CONFER ON
WHETHER SUCH AN ARRANGEMENT WAS FEASIBLE IN THE PRESENT CASE. 

ON JULY 25, 1970, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
DETERMINED THAT THERE WAS NOT REASONABLE CAUSE TO BELIEVE THAT A
VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000E
ET SEQ., HAD OCCURRED.  THE COMMISSION LATER NOTIFIED PETITIONER OF HIS
RIGHT TO INSTITUTE A CIVIL ACTION IN FEDERAL COURT WITHIN 30 DAYS. 
PETITIONER THEN FILED THE PRESENT ACTION IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO, ALLEGING THAT HIS DISCHARGE
RESULTED FROM A RACIALLY DISCRIMINATORY EMPLOYMENT PRACTICE IN
VIOLATION OF 703(A)(1) OF THE ACT.  SEE 42 U.S.C. 2000E - 2(A)(1). 

THE DISTRICT COURT GRANTED RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
AND DISMISSED THE ACTION.  346 F.SUPP.  1012 (1971).  THE COURT FOUND
THAT THE CLAIM OF RACIAL DISCRIMINATION HAD BEEN SUBMITTED TO THE
ARBITRATOR AND RESOLVED ADVERSELY TO PETITIONER.  /4/  IT THEN HELD
THAT PETITIONER, HAVING VOLUNTARILY ELECTED TO PURSUE HIS GRIEVANCE TO
FINAL ARBITRATION UNDER THE NONDISCRIMINATION CLAUSE OF THE COLLECTIVE
BARGAINING AGREEMENT, WAS BOUND BY THE ARBITRAL DECISION AND THEREBY
PRECLUDED FROM SUING HIS EMPLOYER UNDER TITLE VII.  THE COURT OF
APPEALS FOR THE TENTH CIRCUIT AFFIRMED PER CURIAM ON THE BASIS OF THE
DISTRICT COURT'S OPINION.  466 F.2D 1209 (1972). 

WE GRANTED PETITIONER'S APPLICATION FOR CERTIORARI.  410 U.S. 925
(1973).  WE REVERSE. 

        II 

CONGRESS ENACTED TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42
U.S.C. 2000E ET SEQ., TO ASSURE EQUALITY OF EMPLOYMENT OPPORTUNITIES BY
ELIMINATING THOSE PRACTICES AND DEVICES THAT DISCRIMINATE ON THE BASIS
OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN.  MCDONNELL DOUGLAS
CORP. V. GREEN, 411 U.S. 792, 800 (1973); GRIGGS V. DUKE POWER CO., 401
U.S. 424, 429 - 430 (1971).  COOPERATION AND VOLUNTARY COMPLIANCE WERE
SELECTED AS THE PREFERRED MEANS FOR ACHIEVING THIS GOAL.  TO THIS END,
CONGRESS CREATED THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND
ESTABLISHED A PROCEDURE WHEREBY EXISTING STATE AND LOCAL EQUAL
EMPLOYMENT OPPORTUNITY AGENCIES, AS WELL AS THE COMMISSION, WOULD HAVE
AN OPPORTUNITY TO SETTLE DISPUTES THROUGH CONFERENCE, CONCILIATION, AND
PERSUASION BEFORE THE AGGRIEVED PARTY WAS PERMITTED TO FILE A LAWSUIT. 
IN THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972, PUB. L. 92 - 261, 86
STAT. 103, CONGRESS AMENDED TITLE VII TO PROVIDE THE COMMISSION WITH
FURTHER AUTHORITY TO INVESTIGATE INDIVIDUAL CHARGES OF DISCRIMINATION,
TO PROMOTE VOLUNTARY COMPLIANCE WITH THE REQUIREMENTS OF TITLE VII, AND
TO INSTITUTE CIVIL ACTIONS AGAINST EMPLOYERS OR UNIONS NAMED IN A
DISCRIMINATION CHARGE. 

EVEN IN ITS AMENDED FORM, HOWEVER, TITLE VII DOES NOT PROVIDE THE
COMMISSION WITH DIRECT POWERS OF ENFORCEMENT.  THE COMMISSION CANNOT
ADJUDICATE CLAIMS OR IMPOSE ADMINISTRATIVE SANCTIONS.  RATHER, FINAL
RESPONSIBILITY FOR ENFORCEMENT OF TITLE VII IS VESTED WITH FEDERAL
COURTS.  THE ACT AUTHORIZES COURTS TO ISSUE INJUNCTIVE RELIEF AND TO
ORDER SUCH AFFIRMATIVE ACTION AS MAY BE APPROPRIATE TO REMEDY THE
EFFECTS OF UNLAWFUL EMPLOYMENT PRACTICES.  42 U.S.C. 2000E - 5(F) AND
(G) (1970 ED., SUPP. II).  COURTS RETAIN THESE BROAD REMEDIAL POWERS
DESPITE A COMMISSION FINDING OF NO REASONABLE CAUSE TO BELIEVE THAT THE
ACT HAS BEEN VIOLATED.  MCDONNELL DOUGLAS CORP. V. GREEN, SUPRA, AT 798
- 799.  TAKEN TOGETHER, THESE PROVISIONS MAKE PLAIN THAT FEDERAL COURTS
HAVE BEEN ASSIGNED PLENARY POWERS TO SECURE COMPLIANCE WITH TITLE VII. 

IN ADDITION TO REPOSING ULTIMATE AUTHORITY IN FEDERAL COURTS,
CONGRESS GAVE PRIVATE INDIVIDUALS A SIGNIFICANT ROLE IN THE ENFORCEMENT
PROCESS OF TITLE VII.  INDIVIDUAL GRIEVANTS USUALLY INITIATE THE
COMMISSION'S INVESTIGATORY AND CONCILIATORY PROCEDURES.  AND ALTHOUGH
THE 1972 AMENDMENT TO TITLE VII EMPOWERS THE COMMISSION TO BRING ITS
OWN ACTIONS, THE PRIVATE RIGHT OF ACTION REMAINS AN ESSENTIAL MEANS OF
OBTAINING JUDICIAL ENFORCEMENT OF TITLE VII.  42 U.S.C. 2000E - 5(F)(L)
(1970 ED., SUPP. II).  IN SUCH CASES, THE PRIVATE LITIGANT NOT ONLY
REDRESSES HIS OWN INJURY BUT ALSO VINDICATES THE IMPORTANT
CONGRESSIONAL POLICY AGAINST DISCRIMINATORY EMPLOYMENT PRACTICES. 
HUTCHINGS V. UNITED STATES INDUSTRIES, 428 F.2D 303, 310 (CA5 1970);
BOWE V. COLGATE-PALMOLIVE CO., 416 F.2D 711, 715 (CA7 1969); JENKINS V.
UNITED GAS CORP., 400 F.2D 28, 33 (CA5 1968).  SEE ALSO NEWMAN V.
PIGGIE PARK ENTERPRISES, 390 U.S. 400, 402 (1968). 

PURSUANT TO THIS STATUTORY SCHEME, PETITIONER INITIATED THE PRESENT
ACTION FOR JUDICIAL CONSIDERATION OF HIS RIGHTS UNDER TITLE VII.  THE
DISTRICT COURT OF APPEALS HELD, HOWEVER, THAT PETITIONER WAS BOUND BY
THE PRIOR ARBITRAL DECISION AND HAD NO RIGHT TO SUE UNDER TITLE VII. 
/5/  BOTH COURTS EVIDENTLY THOUGHT THAT THIS RESULT WAS DICTATED BY
NOTIONS OF ELECTION OF REMEDIES AND WAIVER AND BY THE FEDERAL POLICY
FAVORING ARBITRATION OF LABOR DISPUTES, AS ENUNCIATED BY THIS COURT IN
TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448 (1957), AND THE
STEELWORKERS TRILOGY.  /6/  SEE ALSO BOYS MARKETS V. RETAIL CLERKS
UNION, 398 U.S. 235 (1970); GATEWAY COAL CO. V. UNITED MINE WORKERS OF
AMERICA, 414 U.S. 368 (1974).  WE DISAGREE. 

        III 

TITLE VII DOES NOT SPEAK EXPRESSLY TO THE RELATIONSHIP BETWEEN
FEDERAL COURTS AND THE GRIEVANCE-ARBITRATION MACHINERY OF COLLECTIVE
BARGAINING AGREEMENTS.  IT DOES, HOWEVER, VEST FEDERAL COURTS WITH
PLENARY POWERS TO ENFORCE THE STATUTORY REQUIREMENTS; AND IT SPECIFIES
WITH PRECISION THE JURISDICTIONAL PREREQUISITES THAT AN INDIVIDUAL MUST
SATISFY BEFORE HE IS ENTITLED TO INSTITUTE A LAWSUIT.  IN THE PRESENT
CASE, THESE PREREQUISITES WERE MET WHEN PETITIONER (1) FILED TIMELY A
CHARGE OF EMPLOYMENT DISCRIMINATION WITH THE COMMISSION, AND (2)
RECEIVED AND ACTED UPON THE COMMISSION'S STATUTORY NOTICE OF THE RIGHT
TO SUE.  42 U.S.C. 2000E - 5(B), (E), AND (F).  SEE MCDONNELL DOUGLAS
CORP. V. GREEN, SUPRA, AT 798.  THERE IS NO SUGGESTION IN THE STATUTORY
SCHEME THAT A PRIOR ARBITRAL DECISION EITHER FORECLOSES AN INDIVIDUAL'S
RIGHT TO SUE OR DIVESTS FEDERAL COURTS OF JURISDICTION. 

IN ADDITION, LEGISLATIVE ENACTMENTS IN THIS AREA HAVE LONG EVINCED A
GENERAL INTENT TO ACCORD PARALLEL OR OVERLAPPING REMEDIES AGAINST
DISCRIMINATION.  /7/  IN THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000A
ET SEQ., CONGRESS INDICATED THAT IT CONSIDERED THE POLICY AGAINST
DISCRIMINATION TO BE OF THE "HIGHEST PRIORITY."  NEWMAN V. PIGGIE PARK
ENTERPRISES, SUPRA, AT 402.  CONSISTENT WITH THIS VIEW, TITLE VII
PROVIDES FOR CONSIDERATION OF EMPLOYMENT-DISCRIMINATION CLAIMS IN
SEVERAL FORUMS.  SEE 42 U.S.C. 2000E - 5(B) (1970 ED., SUPP. II)
(EEOC); 42 U.S.C. 2000E - 5(C) (1970 ED., SUPP. II) (STATE AND LOCAL
AGENCIES); 42 U.S.C. 2000E - 5(F) (1970 ED., SUPP. II) (FEDERAL
COURTS).  AND IN GENERAL, SUBMISSION OF A CLAIM TO ONE FORUM DOES NOT
PRECLUDE A LATER SUBMISSION TO ANOTHER.  /8/  SEE 42 U.S.C. 2000E -
5(B) AND (F) (1970 ED., SUPP. II); MCDONNELL DOUGLAS CORP. V. GREEN,
SUPRA.  MOREOVER, THE LEGISLATIVE HISTORY OF TITLE VII MANIFESTS A
CONGRESSIONAL INTENT TO ALLOW AN INDIVIDUAL TO PURSUE INDEPENDENTLY HIS
RIGHTS UNDER BOTH TITLE VII AND OTHER APPLICABLE STATE AND FEDERAL
STATUTES.  /9/  THE CLEAR INFERENCE IS THAT TITLE VII WAS DESIGNED TO
SUPPLEMENT, RATHER THAN SUPPLANT, EXISTING LAWS AND INSTITUTIONS
RELATING TO EMPLOYMENT DISCRIMINATION.  IN SUM, TITLE VII'S PURPOSE AND
PROCEDURES STRONGLY SUGGEST THAT AN INDIVIDUAL DOES NOT FORFEIT HIS
PRIVATE CAUSE OF ACTION IF HE FIRST PURSUES HIS GRIEVANCE TO FINAL
ARBITRATION UNDER THE NONDISCRIMINATION CLAUSE OF A COLLECTIVE
BARGAINING AGREEMENT. 

IN REACHING THE OPPOSITE CONCLUSION, THE DISTRICT COURT RELIED IN
PART ON THE DOCTRINE OF ELECTION OF REMEDIES.  /10/  THAT DOCTRINE,
WHICH REFERS TO SITUATIONS WHERE AN INDIVIDUAL PURSUES REMEDIES THAT
ARE LEGALLY OR FACTUALLY INCONSISTENT, /11/  HAS NO APPLICATION IN THE
PRESENT CONTEXT.  IN SUBMITTING HIS GRIEVANCE TO ARBITRATION, AN
EMPLOYEE SEEKS TO VINDICATE HIS CONTRACTUAL RIGHT UNDER A COLLECTIVE
BARGAINING AGREEMENT.  BY CONTRAST, IN FILING A LAWSUIT UNDER TITLE
VII, AN EMPLOYEE ASSERTS INDEPENDENT STATUTORY RIGHTS ACCORDED BY
CONGRESS.  THE DISTINCTLY SEPARATE NATURE OF THESE CONTRACTUAL AND
STATUTORY RIGHTS IS NOT VITIATED MERELY BECAUSE BOTH WERE VIOLATED AS A
RESULT OF THE SAME FACTUAL OCCURRENCE.  AND CERTAINLY NO INCONSISTENCY
RESULTS FROM PERMITTING BOTH RIGHTS TO BE ENFORCED IN THEIR
RESPECTIVELY APPROPRIATE FORUMS.  THE RESULTING SCHEME IS SOMEWHAT
ANALOGOUS TO THE PROCEDURE UNDER THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, /12/  WHERE DISPUTED TRANSACTIONS MAY IMPLICATE BOTH
CONTRACTUAL AND STATUTORY RIGHTS.  WHERE THE STATUTORY RIGHT UNDERLYING
A PARTICULAR CLAIM MAY NOT BE ABRIDGED BY CONTRACTUAL AGREEMENT, THE
COURT HAS RECOGNIZED THAT CONSIDERATION OF THE CLAIM BY THE ARBITRATOR
AS A CONTRACTUAL DISPUTE UNDER THE COLLECTIVE-BARGAINING AGREEMENT DOES
NOT PRECLUDE SUBSEQUENT CONSIDERATION OF THE CLAIM BY THE NATIONAL
LABOR RELATIONS BOARD AS AN UNFAIR LABOR PRACTICE CHARGE OR AS A
PETITION FOR CLARIFICATION OF THE UNION'S REPRESENTATION CERTIFICATE
UNDER THE ACT.  CAREY V. WESTINGHOUSE CORP., 375 U.S. 261 (1964).  /13/
CF. SMITH V. EVENING NEWS ASSN., 371 U.S. 195 (1962).  THERE, AS HERE,
THE RELATIONSHIP BETWEEN THE FORUMS IS COMPLEMENTARY SINCE
CONSIDERATION OF THE CLAIM BY BOTH FORUMS MAY PROMOTE THE POLICIES
UNDERLYING EACH.  THUS, THE RATIONALE BEHIND THE ELECTION-OF-REMEDIES
DOCTRINE CANNOT SUPPORT THE DECISION BELOW.  /14/ 

WE ARE ALSO UNABLE TO ACCEPT THE PROPOSITION THAT PETITIONER WAIVED
HIS CAUSE OF ACTION UNDER TITLE VII.  TO BEGIN, WE THINK IT CLEAR THAT
THERE CAN BE NO PROSPECTIVE WAIVER OF AN EMPLOYEE'S RIGHTS UNDER TITLE
VII.  IT IS TRUE, OF COURSE, THAT A UNION MAY WAIVE CERTAIN STATUTORY
RIGHTS RELATED TO COLLECTIVE ACTIVITY, SUCH AS THE RIGHT TO STRIKE. 
MASTRO PLASTICS CORP. V. NLRB, 350 U.S. 270 (1956); BOYS MARKETS V.
RETAIL CLERKS UNION, 398 U.S. 235 (1970).  THESE RIGHTS ARE CONFERRED
ON EMPLOYEES COLLECTIVELY TO FOSTER THE PROCESSES OF BARGAINING AND
PROPERLY MAY BE EXERCISED OR RELINQUISHED BY THE UNION AS COLLECTIVE
BARGAINING AGENT TO OBTAIN ECONOMIC BENEFITS FOR UNIT MEMBERS.  TITLE
VII, ON THE OTHER HAD, STANDS ON PLAINLY DIFFERENT GROUND; IT CONCERNS
NOT MAJORITARIAN PROCESSES, BUT AN INDIVIDUAL'S RIGHT TO EQUAL
EMPLOYMENT OPPORTUNITIES.  TITLE VII'S STRICTURES ARE ABSOLUTE AND
REPRESENT A CONGRESSIONAL COMMAND THAT EACH EMPLOYEE BE FREE FROM
DISCRIMINATORY PRACTICES.  OF NECESSITY, THE RIGHTS CONFERRED CAN FORM
NO PART OF THE COLLECTIVE-BARGAINING PROCESS SINCE WAIVER OF THESE
RIGHTS WOULD DEFEAT THE PARAMOUNT CONGRESSIONAL PURPOSE BEHIND TITLE
VII.  IN THESE CIRCUMSTANCES, AN EMPLOYEE'S RIGHTS UNDER TITLE VII ARE
NOT SUSCEPTIBLE OF PROSPECTIVE WAIVER.  SEE WILKO V. SWAN, 346 U.S. 427
(1953). 

THE ACTUAL SUBMISSION OF PETITIONER'S GRIEVANCE TO ARBITRATION IN
THE PRESENT CASE DOES NOT ALTER THE SITUATION.  ALTHOUGH PRESUMABLY AN
EMPLOYEE MAY WAIVE HIS CAUSE OF ACTION UNDER TITLE VII AS PART OF A
VOLUNTARY SETTLEMENT, /15/  MERE RESORT TO THE ARBITRAL FORUM TO
ENFORCE CONTRACTUAL RIGHTS CONSTITUTES NO SUCH WAIVER.  SINCE AN
EMPLOYEE'S RIGHTS UNDER TITLE VII MAY NOT BE WAIVED PROSPECTIVELY,
EXISTING CONTRACTUAL RIGHTS AND REMEDIES AGAINST DISCRIMINATION MUST
RESULT FROM OTHER CONCESSIONS ALREADY MADE BY THE UNION AS PART OF THE
ECONOMIC BARGAIN STRUCK WITH THE EMPLOYER.  IT IS SETTLED LAW THAT NO
ADDITIONAL CONCESSION MAY BE EXACTED FROM ANY EMPLOYEE AS THE PRICE FOR
ENFORCING THOSE RIGHTS.  J. I. CASE CO. V. NLRB, 321 U.S. 332, 338 -
339 (1944). 

MOREOVER, A CONTRACTUAL RIGHT TO SUBMIT A CLAIM TO ARBITRATION IS
NOT DISPLACED SIMPLY BECAUSE CONGRESS ALSO HAS PROVIDED A STATUTORY
RIGHT AGAINST DISCRIMINATION.  BOTH RIGHTS HAVE LEGALLY INDEPENDENT
ORIGINS AND ARE EQUALLY AVAILABLE TO THE AGGRIEVED EMPLOYEE.  THIS
POINT BECOMES APPARENT THROUGH CONSIDERATION OF THE ROLE OF THE
ARBITRATOR IN THE SYSTEM OF INDUSTRIAL SELF-GOVERNMENT.  /16/  AS THE
PROCTOR OF THE BARGAIN, THE ARBITRATOR'S TASK IS TO EFFECTUATE THE
INTENT OF THE PARTIES.  HIS SOURCE OF AUTHORITY IS THE COLLECTIVE
BARGAINING AGREEMENT, AND HE MUST INTERPRET AND APPLY THAT AGREEMENT IN
ACCORDANCE WITH THE "INDUSTRIAL COMMON LAW OF THE SHOP" AND THE VARIOUS
NEEDS AND DESIRES OF THE PARTIES.  THE ARBITRATOR, HOWEVER, HAS NO
GENERAL AUTHORITY TO INVOKE PUBLIC LAWS THAT CONFLICT WITH THE BARGAIN
BETWEEN THE PARTIES: 

"(AN ARBITRATOR IS CONFINED TO INTERPRETATION AND APPLICATION OF THE
COLLECTIVE BARGAINING AGREEMENT; HE DOES NOT SIT TO DISPUTE HIS OWN
BRAND OF INDUSTRIAL JUSTICE.  HE MAY OF COURSE LOOK FOR GUIDANCE FROM
MANY SOURCES, YET HIS AWARD IS LEGITIMATE ONLY SO LONG AS IT DRAWS ITS
ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  WHEN THE
ARBITRATOR'S WORDS MANIFEST AN INFIDELITY TO THIS OBLIGATION, COURTS
HAVE NO CHOICE BUT TO REFUSE ENFORCEMENT OF THE AWARE."  UNITED
STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593,
597 (1960).  IF AN ARBITRAL DECISION IS BASED "SOLELY UPON THE
ARBITRATOR'S VIEW OF THE REQUIREMENTS OF ENACTED LEGISLATION," RATHER
THAN ON AN INTERPRETATION OF THE COLLECTIVE-BARGAINING AGREEMENT, THE
ARBITRATOR HAS "EXCEEDED THE SCOPE OF THE SUBMISSION," AND THE AWARD
WILL NOT BE ENFORCED.  IBID.  THUS THE ARBITRATOR HAS AUTHORITY TO
RESOLVE ONLY QUESTIONS OF CONTRACTUAL RIGHTS, AND THIS AUTHORITY
REMAINS REGARDLESS OF WHETHER CERTAIN CONTRACTUAL RIGHTS ARE SIMILAR
TO, OR DUPLICATIVE OF, THE SUBSTANTIVE RIGHTS SECURED BY TITLE VII. 

        IV 

THE DISTRICT COURT AND THE COURT OF APPEALS REASONED THAT TO PERMIT
AN EMPLOYEE TO HAVE HIS CLAIM CONSIDERED IN BOTH THE ARBITRAL AND
JUDICIAL FORUMS WOULD BE UNFAIR SINCE THIS WOULD MEAN THAT THE
EMPLOYER, BUT NOT THE EMPLOYEE, WAS BOUND BY THE ARBITRAL AWARD.  IN
THE DISTRICT COURT'S WORDS, IT COULD NOT "ACCEPT A PHILOSOPHY WHICH
GIVES THE EMPLOYEE TWO STRINGS TO HIS BOW WHEN THE EMPLOYER HAS ONLY
ONE."  346 F.SUPP., AT 1019.  THIS ARGUMENT MISTAKES THE EFFECT OF
TITLE VII.  UNDER THE STEELWORKERS TRILOGY, AN ARBITRAL DECISION IS
FINAL AND BINDING ON THE EMPLOYER AND EMPLOYEE, AND JUDICIAL REVIEW IS
LIMITED AS TO BOTH.  BUT IN INSTITUTING AN ACTION UNDER TITLE VII, THE
EMPLOYEE IS NOT SEEKING REVIEW OF THE ARBITRATOR'S DECISION.  RATHER,
HE IS ASSERTING A STATUTORY RIGHT INDEPENDENT OF THE ARBITRATION
PROCESS.  AN EMPLOYER DOES NOT HAVE "TWO STRINGS TO HIS BOW" WITH
RESPECT TO AN ARBITRAL DECISION FOR THE SIMPLE REASON THAT TITLE VII
DOES NOT PROVIDE EMPLOYERS WITH A CAUSE OF ACTION AGAINST EMPLOYEES. 
AN EMPLOYER CANNOT BE THE VICTIM OF DISCRIMINATORY EMPLOYMENT
PRACTICES.  OUBICHON V. NORTH AMERICAN ROCKWELL CORP., 482 F.2D 569,
573 (CA9 1973). 

THE DISTRICT COURT AND THE COURT OF APPEALS ALSO THOUGHT THAT TO
PERMIT A LATER RESORT TO THE JUDICIAL FORUM WOULD UNDERMINE
SUBSTANTIALLY THE EMPLOYER'S INCENTIVE TO ARBITRATE AND WOULD "SOUND
THE DEATH KNELL FOR ARBITRATION CLAUSES IN LABOR CONTRACTS."  346
F.SUPP., AT 1019.  AGAIN, WE DISAGREE.  THE PRIMARY INCENTIVE FOR AN
EMPLOYER TO ENTER INTO AN ARBITRATION AGREEMENT IS THE UNION'S
RECIPROCAL PROMISE NOT TO STRIKE.  AS THE COURT STATED IN BOYS MARKETS
V. RETAIL CLERKS UNION, 398 U.S., AT 248, "A NO-STRIKE OBLIGATION,
EXPRESS OR IMPLIED, IS THE QUID PRO QUO FOR AN UNDERTAKING BY THE
EMPLOYER TO SUBMIT GRIEVANCE DISPUTES TO THE PROCESS OF ARBITRATION." 
IT IS NOT UNREASONABLE TO ASSUME THAT MOST EMPLOYERS WILL REGARD THE
BENEFITS DERIVED FROM A NO-STRIKE PLEDGE AS OUTWEIGHING WHATEVER COSTS
MAY RESULT FROM ACCORDING EMPLOYEES AN ARBITRAL REMEDY AGAINST
DISCRIMINATION IN ADDITION TO THEIR JUDICIAL REMEDY UNDER TITLE VII. 
INDEED, THE SEVERE CONSEQUENCES OF A STRIKE MAY MAKE AN ARBITRATION
CLAUSE ALMOST ESSENTIAL FROM BOTH THE EMPLOYEES' AND THE EMPLOYER'S
PERSPECTIVE.  MOREOVER, THE GRIEVANCE-ARBITRATION MACHINERY OF THE
COLLECTIVE-BARGAINING AGREEMENT REMAINS A RELATIVELY INEXPENSIVE AND
EXPEDITIOUS MEANS FOR RESOLVING A WIDE RANGE OF DISPUTES, INCLUDING
CLAIMS OF DISCRIMINATORY EMPLOYMENT PRACTICES.  WHERE THE COLLECTIVE
BARGAINING AGREEMENT CONTAINS A NONDISCRIMINATION CLAUSE SIMILAR TO
TITLE VII, AND WHERE ARBITRAL PROCEDURES ARE FAIR AND REGULAR,
ARBITRATION MAY WELL PRODUCE A SETTLEMENT SATISFACTORY TO BOTH EMPLOYER
AND EMPLOYEE.  AN EMPLOYER THUS HAS AN INCENTIVE TO MAKE AVAILABLE THE
CONCILIATORY AND THERAPEUTIC PROCESSES OF ARBITRATION WHICH MAY SATISFY
AN EMPLOYEE'S PERCEIVED NEED TO RESORT TO THE JUDICIAL FORUM, THUS
SAVING THE EMPLOYER THE EXPENSE AND AGGRAVATION ASSOCIATED WITH A
LAWSUIT.  FOR SIMILAR REASONS, THE EMPLOYEE ALSO HAS A STRONG INCENTIVE
TO ARBITRATE GRIEVANCES, AND ARBITRATION MAY OFTEN ELIMINATE THOSE
MISUNDERSTANDINGS OR DISCRIMINATORY PRACTICES THAT MIGHT OTHERWISE
PRECIPITATE RESORT TO THE JUDICIAL FORUM. 

        V 

RESPONDENT CONTENDS THAT EVEN IF A PRECLUSION RULE IS NOT ADOPTED,
FEDERAL COURTS SHOULD DEFER TO ARBITRAL DECISIONS ON DISCRIMINATION
CLAIMS WHERE:  (I) THE CLAIM WAS BEFORE THE ARBITRATOR; (II) THE
COLLECTIVE-BARGAINING AGREEMENT PROHIBITED THE FORM OF DISCRIMINATION
CHARGED IN THE SUIT UNDER TITLE VII; AND (III) THE ARBITRATOR HAS
AUTHORITY TO RULE ON THE CLAIM AND TO FASHION A REMEDY.  /17/  UNDER
RESPONDENT'S PROPOSED RULE, A COURT WOULD GRANT SUMMARY JUDGMENT AND
DISMISS THE EMPLOYEE'S ACTION IF THE ABOVE CONDITIONS WERE MET.  THE
RULE'S OBVIOUS CONSEQUENCE IN THE PRESENT CASE WOULD BE TO DEPRIVE THE
PETITIONER OF HIS STATUTORY RIGHT TO ATTEMPT TO ESTABLISH HIS CLAIM IN
A FEDERAL COURT. 

AT THE OUTSET, IT IS APPARENT THAT A DEFERRAL RULE WOULD BE SUBJECT
TO MANY OF THE OBJECTIONS APPLICABLE TO A PRECLUSION RULE.  THE PURPOSE
AND PROCEDURES OF TITLE VII INDICATE THAT CONGRESS INTENDED FEDERAL
COURTS TO EXERCISE FINAL RESPONSIBILITY FOR ENFORCEMENT OF TITLE VII;
DEFERRAL TO ARBITRAL DECISIONS WOULD BE INCONSISTENT WITH THAT GOAL. 
FURTHERMORE, WE HAVE LONG RECOGNIZED THAT "THE CHOICE OF FORUMS
INEVITABLY AFFECTS THE SCOPE OF THE SUBSTANTIVE RIGHT TO BE
VINDICATED."  U.S. BULK CARRIERS V. ARGUELLES, 400 U.S. 351, 359 - 360
(1971) (HARLAN, J., CONCURRING).  RESPONDENT'S DEFERRAL RULE IS
NECESSARILY PREMISED ON THE ASSUMPTION THAT ARBITRAL PROCESSES ARE
COMMENSURATE WITH JUDICIAL PROCESSES AND THAT CONGRESS IMPLIEDLY
INTENDED FEDERAL COURTS TO DEFER TO ARBITRAL DECISIONS ON TITLE VII
ISSUES.  WE DEEM THIS SUPPOSITION UNLIKELY. 

ARBITRAL PROCEDURES, WHILE WELL SUITED TO THE RESOLUTION OF
CONTRACTUAL DISPUTES, MAKE ARBITRATION A COMPARATIVELY INAPPROPRIATE
FORUM FOR THE FINAL RESOLUTION OF RIGHTS CRATED BY TITLE VII.  THIS
CONCLUSION RESTS FIRST ON THE SPECIAL ROLE OF THE ARBITRATOR, WHOSE
TASK IS TO EFFECTUATE THE INTENT OF THE PARTIES RATHER THAN THE
REQUIREMENTS OF ENACTED LEGISLATION.  WHERE THE COLLECTIVE-BARGAINING
AGREEMENT CONFLICTS WITH TITLE VII, THE ARBITRATION MUST FOLLOW THE
AGREEMENT.  TO BE SURE, THE TENSION BETWEEN CONTRACTUAL AND STATUTORY
OBJECTIVES MAY BE MITIGATED WHERE A COLLECTIVE-BARGAINING AGREEMENT
CONTAINS PROVISIONS FACIALLY SIMILAR TO THOSE OF TITLE VII.  BUT OTHER
FACTS MAY STILL RENDER ARBITRAL PROCESSES COMPARATIVELY INFERIOR TO
JUDICIAL PROCESSES IN THE PROTECTION OF TITLE VII RIGHTS.  AMONG THESE
IS THE FACT THAT THE SPECIALIZED COMPETENCE OF ARBITRATORS PERTAINS
PRIMARILY TO THE LAW OF THE SHOP, NOT THE LAW OF THE LAND.  UNITED
STEELWORKERS OF AMERICA V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574,
581 - 583 (1960).  /18/  PARTIES USUALLY CHOOSE AN ARBITRATOR BECAUSE
THEY TRUST HIS KNOWLEDGE AND JUDGMENT CONCERNING THE DEMANDS AND NORMS
OF INDUSTRIAL RELATIONS.  ON THE OTHER HAND, THE RESOLUTION OF
STATUTORY OR CONSTITUTIONAL ISSUES IS A PRIMARY RESPONS AND JUDICIAL
CONSTRUCTION HAS PROVED ESPECIALLY NECESSARY WITH RESPECT TO TITLE VII,
WHOSE BROAD LANGUAGE FREQUENTLY CAN BE GIVEN MEANING ONLY BY REFERENCE
TO PUBLIC LAW CONCEPTS. 

MOREOVER, THE FACTFINDING PROCESS IN ARBITRATION USUALLY IS NOT
EQUIVALENT TO JUDICIAL FACTFINDING.  THE RECORD OF THE ARBITRATION
PROCEEDINGS IS NOT AS COMPLETE; THE USUAL RULES OF EVIDENCE DO NOT
APPLY; AND RIGHTS AND PROCEDURES COMMON TO CIVIL TRIALS, SUCH AS
DISCOVERY, COMPULSORY PROCESS, CROSS-EXAMINATION, AND TESTIMONY UNDER
OATH, ARE OFTEN SEVERLY LIMITED OR UNAVAILABLE.  SEE BERNHARDT V.
POLYGRAPHIC CO., 350 U.S. 198, 203 (1956); WILKO V. SWAN, 346 U.S., AT
435 - 437.  AND AS THIS COURT HAS RECOGNIZED, "(ARBITRATORS HAVE NO
OBLIGATION TO THE COURT TO GIVE THEIR REASONS FOR AN AWARD."  UNITED
STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP., 363 U.S., AT
598.  INDEED, IT IS THE INFORMALITY OF ARBITRAL PROCEDURE THAT ENABLES
IT TO FUNCTION AS AN EFFICIENT, INEXPENSIVE, AND EXPEDITIOUS MEANS FOR
DISPUTE RESOLUTION.  THIS SAME CHARACTERISTIC, HOWEVER, MAKES
ARBITRATION A LESS APPROPRIATE FORUM FOR FINAL RESOLUTION OF TITLE VII
ISSUES THAN THE FEDERAL COURTS.  /19/ 

IT IS EVIDENT THAT RESPONDENT'S PROPOSED RULE WOULD NOT ALLAY THESE
CONCERNS.  NOR ARE WE CONVINCED THAT THE SOLUTION LIES IN APPLYING A
MORE DEMANDING DEFERRAL STANDARD, SUCH AS THAT ADOPTED BY THE FIFTH
CIRCUIT IN RIOS V. REYNOLDS METALS CO., 467 F.2D 54 (1972).  /20/  AS
RESPONDENT POINTS OUT, A STANDARD THAT ADEQUATELY INSURED EFFECTUATION
OF TITLE VII RIGHTS IN THE ARBITRAL FORUM WOULD TEND TO MAKE
ARBITRATION A PROCEDURALLY COMPLEX, EXPENSIVE, AND TIME-CONSUMING
PROCESS.  AND JUDICIAL ENFORCEMENT OF SUCH A STANDARD WOULD ALMOST
REQUIRE COURTS TO MAKE DE NOVO DETERMINATIONS OF THE EMPLOYEES'
CLAIMS.  IT IS UNCERTAIN WHETHER ANY MINIMAL SAVINGS IN JUDICIAL TIME
AND EXPENSE WOULD JUSTIFY THE RISK TO VINDICATION OF TITLE VII RIGHTS. 

A DEFERRAL RULE ALSO MIGHT ADVERSELY AFFECT THE ARBITRATION SYSTEM
AS WELL AS THE ENFORCEMENT SCHEME OF TITLE VII.  FEARING THAT THE
ARBITRAL FORUM CANNOT ADEQUATELY PROTECT THEIR RIGHTS UNDER TITLE VII,
SOME EMPLOYEES MAY ELECT TO BYPASS ARBITRATION AND INSTITUTE A
LAWSUIT.  THE POSSIBILITY OF VOLUNTARY COMPLIANCE OR SETTLEMENT OF
TITLE VII CLAIMS WOULD THUS BE REDUCED, AND THE RESULT COULD WELL BE
MORE LITIGATION, NOT LESS. 

WE THINK, THEREFORE, THAT THE FEDERAL POLICY FAVORING ARBITRATION OF
LABOR DISPUTES AND THE FEDERAL POLICY AGAINST DISCRIMINATORY EMPLOYMENT
PRACTICES CAN BEST BE ACCOMMODATED BY PERMITTING AN EMPLOYEE TO PURSUE
FULLY BOTH HIS REMEDY UNDER THE GRIEVANCE-ARBITRATION CLAUSE OF A
COLLECTIVE-BARGAINING AGREEMENT AND HIS CAUSE OF ACTION UNDER TITLE
VII.  THE FEDERAL COURT SHOULD CONSIDER THE EMPLOYEE'S CLAIM DE NOVO. 
THE ARBITRAL DECISION MAY BE ADMITTED AS EVIDENCE AND ACCORDED SUCH
WEIGHT AS THE COURT DEEMS APPROPRIATE.  /21/     THE JUDGMENT OF THE
COURT OF APPEALS IS

              REVERSED. 

/1/  ARTICLE 4 OF THE AGREEMENT PROVIDED:

   "MANAGEMENT 

"THE UNION RECOGNIZES THAT ALL RIGHTS TO MANAGE THE PLANT, TO
DETERMINE THE PRODUCTS TO BE MANUFACTURED, THE METHODS OF MANUFACTURING
OR ASSEMBLING, THE SCHEDULING OF PRODUCTION, THE CONTROL OF RAW
MATERIALS, AND TO DIRECT THE WORKING FORCES, INCLUDING THE RIGHT TO
HIRE, SUSPEND OR DISCHARGE FOR PROPER CAUSE, AND THE RIGHT TO RELIEVE
EMPLOYEES FROM DUTY BECAUSE OF LACK OF WORK OR OTHER LEGITIMATE
REASONS, AND THE RIGHT TO MAINTAIN ORDER AND EFFICIENCY ARE VESTED
EXCLUSIVELY IN THE COMPANY. 

"IT IS UNDERSTOOD BY THE PARTIES THAT ALL RIGHTS RECOGNIZED IN THIS
ARTICLE ARE SUBJECT TO THE TERMS OF THIS AGREEMENT." 

/2/  ARTICLE 5 OF THE AGREEMENT PROVIDED:

        "MUTUAL RESPONSIBILITY 

"SECTION 1.  THE PARTIES AGREE THAT DURING THE TERM OF THIS
AGREEMENT THERE SHALL BE NO STRIKE, SLOW-DOWN OR OTHER INTERRUPTION OF
PRODUCTION, AND THAT FOR THE SAME PERIOD THERE SHALL BE NO LOCKOUT,
SUBJECT TO THE PROVISIONS OF ARTICLE 26, TERM OF AGREEMENT. 

"SECTION 2.  THE COMPANY AND THE UNION AGREE THAT THERE SHALL BE NO
DISCRIMINATION AGAINST ANY EMPLOYEE ON ACCOUNT OF RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, OR ANCESTRY.  THE COMPANY FURTHER
STATES AND THE UNION APPROVES THAT NO SUCH DISCRIMINATION SHALL BE
PRACTICED AGAINST ANY APPLICANT FOR EMPLOYMENT." 

/3/  ARTICLE 23, CONTAINING THE GRIEVANCE-ARBITRATION PROCEDURES OF
THE AGREEMENT, PROVIDED IN RELEVANT PART:

        .          .          .          . 

"SECTION 5.  SHOULD DIFFERENCES ARISE BETWEEN THE COMPANY AND THE
UNION AS TO THE MEANING AND APPLICATION OF THE PROVISIONS OF THIS
AGREEMENT, OR SHOULD ANY TROUBLE ARISE IN THE PLANT, THERE SHALL BE NO
SUSPENSION OF WORK, BUT AN EARNEST EFFORT SHALL BE MADE BY BOTH THE
COMPANY AND THE UNION TO SETTLE SUCH DIFFERENCES PROMPTLY.  GRIEVANCES
MUST BE PRESENTED WITHIN FIVE (5) WORKING DAYS AFTER THE DATE OF THE
OCCURRENCE GIVING RISE TO THE GRIEVANCE OR THEY SHALL BE CONSIDERED
WAIVED.  GRIEVANCES SHALL BE TAKEN UP IN THE FOLLOWING MANNER; EXCEPT
THAT ANY GRIEVANCE FILED BY THE LOCAL UNION SHALL BE SUBMITTED IN
WRITING AT STEP 3 OF THE GRIEVANCE PROCEDURE AS SET FORTH HEREIN: 

"STEP 1.  AN ATTEMPT SHALL FIRST BE MADE BY THE EMPLOYEE WITH OR
WITHOUT HIS ASSISTANT GRIEVANCE COMMITTEEMAN (AT THE EMPLOYEE'S
OPTION), AND THE EMPLOYEE'S FOREMAN TO SETTLE THE GRIEVANCE.  THE FORE
MAN SHALL SUBMIT HIS ANSWER WITHIN ONE (1) WORKING DAY AND IF THE
GRIEVANCE IS NOT SETTLED, IT SHALL BE REDUCED TO WRITING, SIGNED BY THE
EMPLOYEE AND HIS ASSISTANT GRIEVANCE COMMITTEEMAN, AND THE FOREMAN
SHALL SUBMIT HIS SIGNED ANSWER OF SUCH GRIEVANCE. 

"STEP 2.  IF THE GRIEVANCE IS NOT SETTLED IN STEP 1, IT SHALL BE
PRESENTED TO THE SUPERINTENDENT, OR HIS REPRESENTATIVE WITHIN TWO (2)
WORKING DAYS AFTER THE UNION HAS RECEIVED THE FOREMAN'S ANSWER IN STEP
1.  THE SUPERINTENDENT OR HIS REPRESENTATIVE SHALL SUBMIT HIS SIGNED
ANSWER TWO (2) WORKING DAYS AFTER RECEIVING THE GRIEVANCE. 

"STEP 3.  IF THE GRIEVANCE IS NOT SETTLED IN STEP 2, IT SHALL BE
PRESENTED TO THE MANAGER OF MANUFACTURING OR HIS REPRESENTATIVE WITHIN
FIVE (5) WORKING DAYS AFTER THE UNION HAS RECEIVED THE SUPERINTENDENT'S
ANSWER IN STEP 2.  THE MANAGER OF MANUFACTURING OR HIS REPRESENTATIVE
SHALL MEET WITH THE REPRESENTATIVES OF THE UNION TO ATTEMPT TO RESOLVE
THE GRIEVANCE WITHIN FIVE (5) WORKING DAYS FOLLOWING THE PRESENTATION
OF THE GRIEVANCE.  THE MANAGER OF MANUFACTURING OR HIS REPRESENTATIVE
SHALL SUBMIT HIS SIGNED ANSWER WITHIN THREE (3) WORKING DAYS AFTER THE
DATE OF SUCH MEETING. 

"STEP 4.  IF THE GRIEVANCE IS NOT SETTLED IN STEP 3, IT SHALL BE
REFERRED TO THE PERSONNEL MANAGER, AND/OR HIS REPRESENTATIVES, AND THE
INTERNATIONAL REPRESENTATIVE AND CHAIRMAN OF THE GRIEVANCE COMMITTEE
WITHIN FIVE (5) WORKING DAYS AFTER THE UNION HAS RECEIVED THE STEP 3
ANSWER.  WITHIN TEN (10) WORKING DAYS AFTER THE GRIEVANCE HAS BEEN
REFERRED TO STEP 4, THE ABOVE MENTIONED PARTIES SHALL MEET FOR THE
PURPOSE OF DISCUSSING SUCH GRIEVANCE.  WITHIN FIVE (5) WORKING DAYS
FOLLOWING THE MEETING, THE COMPANY REPRESENTATIVES SHALL SUBMIT THEIR
SIGNED ANSWER TO THE UNION.  THE UNION REPRESENTATIVES SHALL SIGNIFY
THEIR CONCURRENCE OR NON-CONCURRENCE AND AFFIX THEIR SIGNATURES TO THE
GRIEVANCE. 

"STEP 5.  GRIEVANCES WHICH HAVE NOT BEEN SETTLED UNDER THE FOREGOING
PROCEDURE MAY BE REFERRED TO ARBITRATION BY NOTICE IN WRITING WITHIN
TEN (10) CALENDAR DAYS AFTER THE DATE OF THE COMPANY'S FINAL ANSWER IN
STEP 4.  WITHIN FIVE (5) DAYS AFTER RECEIPT OF REFERRAL TO ARBITRATION
THE PARTIES SHALL SELECT AN IMPARTIAL ARBITRATOR. 

"SHOULD THE PARTIES BE UNABLE TO AGREE UPON AN ARBITRATOR, THE
SELECTION SHALL BE MADE BY THE SENIOR JUDGE OF THE U.S. CIRCUIT COURT
OF APPEALS FOR THE TENTH CIRCUIT.  THE DECISION OF THE ARBITRATOR SHALL
BE FINAL AND BINDING UPON THE COMPANY, THE UNION, AND ANY EMPLOYEE OR
EMPLOYEES INVOLVED.  THE EXPENSES AND FEE OF THE ARBITRATOR SHALL BE
DIVIDED EQUALLY BETWEEN THE COMPANY AND THE UNION.  THE ARBITRATOR
SHALL NOT AMEND, TAKE AWAY, ADD TO, OR CHANGE ANY OF THE PROVISIONS OF
THIS AGREEMENT, AND THE ARBITRATOR'S DECISION MUST BE BASED SOLELY UPON
AN INTERPRETATION OF THE PROVISIONS OF THIS AGREEMENT. 

"SECTION 6.  (A) NO EMPLOYEE WILL BE DISCHARGED, SUSPENDED OR GIVEN
A WRITTEN WARNING NOTICE EXCEPT FOR JUST CAUSE. 

        .          .          .         . 

"(G) SHOULD IT BE DETERMINED THAT THE EMPLOYEE HAS BEEN UNJUSTLY
SUSPENDED OR DISCHARGED THE COMPANY SHALL REINSTATE THE EMPLOYEE AND
PAY FULL COMPENSATION AT THE EMPLOYEE'S BASIC HOURLY RATE OR EARNED
RATE, WHICHEVER IS THE HIGHER, FOR THE TIME LOST." 

/4/  IN REACHING THIS CONCLUSION, THE DISTRICT COURT RELIED ON
PETITIONER'S DEPOSITION ACKNOWLEDGING THAT HE HAD RAISED THE RACIAL
DISCRIMINATION CLAIM DURING THE ARBITRATION HEARING.  346 F.SUPP. 
1012, 1014. 

/5/  THE DISTRICT COURT RECOGNIZED THAT A CONFLICT OF AUTHORITIES
EXISTED ON THE ISSUE BUT CHOSE TO RELY ON DEWEY V. REYNOLDS METALS CO.,
429 F.2D 324, 332 (CA6 1970), AFFIRMED BY AN EQUALLY DIVIDED COURT, 402
U.S. 689 (1971).  THERE, THE SIXTH CIRCUIT HELD THAT PRIOR SUBMISSION
OF AN EMPLOYEE'S CLAIM TO ARBITRATION UNDER A COLLECTIVE-BARGAINING
AGREEMENT PRECLUDED A LATER SUIT UNDER TITLE VII.  THE SIXTH CIRCUIT
APPEARS TO HAVE SINCE RETREATED IN PART FROM DEWEY BY SUGGESTING THAT
THERE IS NO PRECLUSION WHERE BOTH ARBITRATION AND "COURT OR AGENCY
PROCESSES" ARE PURSUED SIMULTANEOUSLY.  SEE SPANN V. KAYWOOD DIVISION,
JOANNA WESTERN MILLS CO., 446 F.2D 120, 122 (1971).  THE FIFTH,
SEVENTH, AND NINTH CIRCUITS HAVE SQUARELY REJECTED A PRECLUSION RULE. 
SEE HUTCHINGS V. UNITED STATES INDUSTRIES, 428 F.2D 303 (CA5 1970);
BOWE V. COLGATE-PALMOLIVE CO., 416 F.2D 711 (CA7 1969); OUBICHON V.
NORTH AMERICAN ROCKWELL CORP., 482 F.2D 569 (CA9 1973). 

/6/  UNITED STEELWORKERS OF AMERICA V. AMERICAN MFG. CO., 363 U.S.
564 (1960); UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF NAVIGATION
CO., 363 U.S. 574 (1960); UNITED STEELWORKERS OF AMERICA V. ENTERPRISE
WHEEL & CAR CORP., 363 U.S. 593 (1960).  IN TEXTILE WORKERS UNION V.
LINCOLN MILLS, 353 U.S. 448 (1957), THIS COURT HELD THAT A GRIEVANCE
ARBITRATION PROVISION OF A COLLECTIVE-BARGAINING AGREEMENT COULD BE
ENFORCED AGAINST UNIONS AND EMPLOYERS UNDER 301 OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, 61 STAT. 156, 29 U.S.C. 185.  THE COURT NOTED THAT
THE CONGRESSIONAL POLICY, AS EMBODIED IN 203(D) OF THE LMRA, 61 STAT.
154, 29 U.S.C. 173(D), WAS TO PROMOTE INDUSTRIAL PEACE AND THAT THE
GRIEVANCE-ARBITRATION PROVISION OF A COLLECTIVE AGREEMENT WAS A MAJOR
FACTOR IN ACHIEVING THIS GOAL.  353 U.S., AT 455.  IN THE STEELWORKERS
TRILOGY, THE COURT FURTHER ADVANCED THIS POLICY BY DECLARING THAT AN
ORDER TO ARBITRATE WILL NOT BE DENIED "UNLESS IT MAY BE SAID WITH
POSITIVE ASSURANCE THAT THE ARBITRATION CLAUSE IS NOT SUSCEPTIBLE OF AN
INTERPREATION THAT COVERS THE ASSERTED DISPUTE."  UNITED STEELWORKERS
OF AMERICA V. WARRIOR & GULF NAVIGATION CO., SUPRA, AT 582 - 583.  THE
COURT ALSO STATED THAT "SO FAR AS THE ARBITRATOR'S DECISION CONCERNS
CONSTRUCTION OF THE CONTRACT, THE COURTS HAVE NO BUSINESS OVERRULING
HIM BECAUSE THEIR INTERPRETATION OF THE CONTRACT IS DIFFERENT FROM
HIS."  UNITED STEELWORKERS OF AMERICA V. ENTERPRISE WHELL & CAR CORP.,
SUPRA, AT 599.  AND IN REPUBLIC STEEL CORP. V. MADDOX, 379 U.S. 650
(1965), THE COURT HELD THAT GRIEVANCE-ARBITRATION PROCEDURES OF A
COLLECTIVE-BARGAINING AGREEMENT MUST BE EXHAUSTED BEFORE AN EMPLOYEE
MAY FILE SUIT TO ENFORCE CONTRACTUAL RIGHTS. 

FOR THE REASONS STATED IN PARTS III, IV, AND V OF THIS OPINION, WE
HOLD THAT THE FEDERAL POLICY FAVORING ARBITRATION DOES NOT ESTABLISH
THAT AN ARBITRATOR'S RESOLUTION OF A CONTRACTUAL CLAIM IS DISPOSITIVE
OF A STATUTORY CLAIM UNDER TITLE VII. 

/7/  SEE, E.G., 42 U.S.C. 1981 (CIVIL RIGHTS ACT OF 1866); 42 U.S.C.
1983 (CIVIL RIGHTS ACT OF 1871). 

/8/  FOR EXAMPLE, COMMISSION ACTION IS NOT BARRED BY "FINDINGS AND
ORDERS"  OF STATE OR LOCAL AGENCIES.  SEE 42 U.S.C. 2000E - 5(B) (1970
ED., SUPP. II).  SIMILARLY, AN INDIVIDUAL'S CAUSE OF ACTION IS NOT
BARRED BY A COMMISSION FINDING OF NO REASONABLE CAUSE TO BELIEVE THAT
THE ACT HAS BEEN VIOLATED.  SEE 42 U.S.C. 2000E - 5(F) (1970 ED., SUPP.
II); MCDONNELL DOUGLAS CORP. V. GREEN, 411 U.S. 792 (1973). 

/9/  FOR EXAMPLE, SENATOR JOSEPH CLARK, ONE OF THE SPONSORS OF THE
BILL, INTRODUCED AN INTERPRETIVE MEMORANDUM WHICH STATED:  "NOTHING IN
TITLE VII OR ANYWHERE ELSE IN THIS BILL AFFECTS RIGHTS AND OBLIGATIONS
UNDER THE NLRA AND THE RAILWAY LABOR ACT . . . (TITLE VII IS NOT
INTENDED TO AND DOES NOT DENY TO ANY INDIVIDUAL, RIGHTS AND REMEDIES
WHICH HE MAY PURSUE UNDER OTHER FEDERAL AND STATE STATUTES.  IF A GIVEN
ACTION SHOULD VIOLATE BOTH TITLE VII AND THE NATIONAL LABOR RELATIONS
ACT, THE NATIONAL LABOR RELATIONS BOARD WOULD NOT BE DEPRIVED OF
JURISDICTION."  110 CONG. REC. 7207 (1964).  MOREOVER, THE SENATE
DEFEATED AN AMENDMENT WHICH WOULD HAVE MADE TITLE VII THE EXCLUSIVE
FEDERAL REMEDY FOR MUST UNLAWFUL EMPLOYMENT PRACTICES.  110 CONG. REC.
13650 - 13652 (1964).  AND A SIMILAR AMENDMENT WAS REJECTED IN
CONNECTION WITH THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972.  SEE H.R.
9247, 92D CONG., 1ST SESS. (1971).  SEE H.R. REP. NO. 92 - 238 (1971). 
SEE ALSO 2 U.S.C. CONG. & AD. NEWS, 92D CONG., 2D SESS., 2137, 2179,
2181 - 2182 (1972).  THE REPORT OF THE SENATE COMMITTEE RESPONSIBLE FOR
THE 1972 ACT EXPLAINED THAT NEITHER THE "PROVISIONS REGARDING THE
INDIVIDUAL'S RIGHT TO SUE UNDER TITLE VII, NOR ANY OF THE OTHER
PROVISIONS OF THIS BILL, ARE MEANT TO AFFECT EXISTING RIGHTS GRANTED
UNDER OTHER LAWS."  S. REP. NO. 92 - 415, P. 24 (1971).  FOR A DETAILED
DISCUSSION OF THE LEGISLATIVE HISTORY OF THE 1972 ACT, SEE SAPE & HART,
TITLE VII RECONSIDERED:  THE EQUAL OPPORTUNITY ACT OF 1972, 40 GEO.
WASH. L. REV. 824 (1972). 

/10/  THE DISTRICT COURT ADOPTED THE REASONING OF THE SIXTH CIRCUIT
IN DEWEY V. REYNOLDS METALS CO., 429 F.2D AT 332, AFFIRMED BY AN
EQUALLY DIVIDED COURT, 402 U.S. 689 (1971), WHICH WAS APPARENTLY BASED
IN PART ON THE DOCTRINE OF ELECTION OF REMEDIES.  SEE N. 5, SUPRA.  THE
SIXTH CIRCUIT, HOWEVER, LATER DESCRIBED DEWEY AS RESTING INSTEAD OF THE
DOCTRINE OF EQUITABLE ESTOPPEL AND ON "THEMES OF RES JUDICATA AND
COLLATERAL ESTOPPEL."  NEWMAN V. AVCO CORP., 451 F.2D 743, 747 N. 1
(1971).  WHATEVER DOCTRINAL LABEL IS USED, THE ESSENCE OF THESE
HOLDINGS REMAINS THE SAME.  THE POLICY REASONS FOR REJECTING THE
DOCTRINES OF ELECTION OF REMEDIES AND WAIVER IN THE CONTEXT OF TITLE
VII ARE EQUALLY APPLICABLE TO THE DOCTRINES OF RES JUDICATA AND
COLLATERAL ESTOPPEL. 

/11/  SEE GENERALLY 5A A. CORBIN, CONTRACTS 1214 - 1227 (1964 ED.
AND SUPP. 1971).  MOST COURTS HAVE RECOGNIZED THAT THE DOCTRINE OF
ELECTION OF REMEDIES DOES NOT APPLY TO SUITS UNDER TITLE VII.  SEE,
E.G., BOWE V. COLGATE-PALMOLIVE CO., 416 F.2D, AT 714 - 715; HUTCHINGS
V. UNITED STATES INDUSTRIES, 428 F.2D, AT 314; MACKLIN V. SPECTOR
FREIGHT SYSTEMS, 156 U.S. APP. D.C. 69, 80 - 81, 478 F.2D 979, 990 -
991 (1973); VOUTSIS V. UNION CARBIDE CORP., 452 F.2D 889, 893 - 894
(CA2 1971), CERT. DENIED, 406 U.S. 918 (1972); NEWMAN V. AVCO CORP.,
SUPRA, AT 746 N. 1; OUBICHON V. NORTH AMERICAN ROCKWELL CORP., 482 F.2D
AT 572 - 573. 

/12/  61 STAT. 136, 29 U.S.C. 151 ET SEQ. 

/13/  AS THE COURT NOTED IN CAREY:  BY ALLOWING THE DISPUTE TO GO TO
ARBITRATION . . . THOSE CONCILIATORY MEASURES WHICH CONGRESS DEEMED
VITAL TO 'INDUSTRIAL PEACE' . . . AND WHICH MAY BE DISPOSITIVE OF THE
ENTIRE DISPUTE, ARE ENCOURAGED.  THE SUPERIOR AUTHORITY OF THE BOARD
MAY BE INVOKED AT ANY TIME.  MEANWHILE THE THERAPY OF ARBITRATION IS
BROUGHT TO BEAR IN A COMPLICATED AND TROUBLED AREA."  375 U.S., AT
272.  SHOULD DISAGREEMENTS ARISE BETWEEN THE BOARD AND THE ARBITRATOR,
THE BOARD'S RULING WOULD, OF COURSE, TAKE PRECEDENCE AS TO THOSE ISSUES
WITHIN ITS JURISDICTION.  IBID. 

/14/  NOR CAN IT BE MAINTAINED THAT ELECTION OF REMEDIES IS REQUIRED
BY THE POSSIBILITY OF UNJUST ENRICHMENT THROUGH DUPLICATIVE
RECOVERIES.  WHERE, AS HERE, THE EMPLOYER HAS PREVAILED AT ARBITRATION,
THERE, OF COURSE, CAN BE NO DUPLICATIVE RECOVERY.  BUT EVEN IN CASES
WHERE THE EMPLOYEE HAS FIRST PREVAILED, JUDICIAL RELIEF CAN BE
STRUCTURED TO AVOID SUCH WINDFALL GAINS.  SEE, E.G., OUBICHON V. NORTH
AMERICAN ROCKWELL CORP., SUPRA; BOWE V. COLGATE-PALMOLIVE CO., SUPRA.
FURTHERMORE, IF THE RELIEF OBTAINED BY THE EMPLOYEE AT ARBITRATION WERE
FULLY EQUIVALENT TO THAT OBTAINABLE UNDER TITLE VII, THERE WOULD BE NO
FURTHER RELIEF FOR THE COURT TO GRANT AND HENCE NO NEED FOR THE
EMPLOYEE TO INSTITUTE SUIT.     /15/  IN THIS CASE PETITIONER AND
RESPONDENT DID NOT ENTER INTO A VOLUNTARY SETTLEMENT EXPRESSLY
CONDITIONED ON A WAIVER OF PETITIONER'S CAUSE OF ACTION UNDER TITLE
VII.  IN DETERMINING THE EFFECTIVENESS OF ANY SUCH WAIVER, A COURT
WOULD HAVE TO DETERMINE AT THE OUTSET THAT THE EMPLOYEE'S CONSENT TO
THE SETTLEMENT WAS VOLUNTARY AND KNOWING.  IN NO EVENT CAN THE
SUBMISSION TO ARBITRATION OF A CLAIM UNDER THE NONDISCRIMINATION CLAUSE
OF A COLLECTIVE-BARGAINING AGREEMENT CONSTITUTE A BINDING WAIVER WITH
RESPECT TO AN EMPLOYEE'S RIGHTS UNDER TITLE VII. 

/16/  SEE MELTZER, LABOR ARBITRATION AND OVERLAPPING AND CONFLICTING
REMEDIES FOR EMPLOYMENT DISCRIMINATION, 39 U. CHI.  L. REV. 30, 32 - 35
(1971); MELTZER, RUMINATIONS ABOUT IDEOLOGY, LAW, AND LABOR
ARBITRATION, 34 U. CHI.  L. REV. 545 (1967).  AS THE LATE DEAN SHULMAN
STATED:  "A PROPER CONCEPTION OF THE ARBITRATOR'S FUNCTION IS BASIC. 
HE IS NOT A PUBLIC TRIBUNAL IMPOSED UPON THE PARTIES BY SUPERIOR
AUTHORITY WHICH THE PARTIES ARE OBLIGED TO ACCEPT.  HE HAS NO GENERAL
CHARTER TO ADMINISTER JUSTICE FOR A COMMUNITY WHICH TRANSCENDS THE
PARTIES.  HE IS RATHER PART OF A SYSTEM OF SELF-GOVERNMENT CREATED BY
AND CONFINED TO THE PARTIES.  HE SERVES THEIR PLEASURE ONLY, TO
ADMINISTER THE RULE OF LAW ESTABLISHED BY THEIR COLLECTIVE AGREEMENT." 
SHULMAN, REASON, CONTRACT, AND LAW IN LABOR RELATIONS, 68 HARV. L. REV.
999, 1016 (1955). 

/17/  BRIEF FOR RESPONDENT 37.  RESPONDENT'S PROPOSED RULE IS
ANALOGOUS TO THE NLRB'S POLICY OF DEFERRING TO ARBITRAL DECISIONS ON
STATUTORY ISSUES IN CERTAIN CASES.  SEE SPIELBERG MFG. CO., 112
N.L.R.B. 1080, 1082 (1955). 

/18/  SEE ALSO GOULD, LABOR ARBITRATION OF GRIEVANCES INVOLVING
RACIAL DISCRIMINATION, 118 U. PA. L. REV. 40, 47 - 48 (1969); PLATT,
THE RELATIONSHIP BETWEEN ARBITRATION AND TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, 3 GA. L. REV. 398 (1969).  SIGNIFICANTLY, A SUBSTANTIAL
PROPORTION OF LABOR ARBITRATORS ARE NOT LAWYERS.  SEE NOTE, THE NLRB
AND DEFERENCE TO ARBITRATION, 77 YALE L.J. 1191, 1194 N. 28 (1968). 
THIS IS NOT TO SUGGEST, OF COURSE, THAT ARBITRATORS DO NOT POSSESS A
HIGH DEGREE OF COMPETENCE WITH RESPECT TO THE VITAL ROLE IN
IMPLEMENTING THE FEDERAL POLICY FAVORING ARBITRATION OF LABOR
DISPUTES. 

/19/  A FURTHER CONCERN IS THE UNION'S EXCLUSIVE CONTROL OVER THE
MANNER AND EXTENT TO WHICH AN INDIVIDUAL GRIEVANCE IS PRESENTED.  SEE
VACA V. SIPES, 386 U.S. 171 (1967); REPUBLIC STEEL CORP. V. MADDOX, 379
U.S. 650 (1965).  IN ARBITRATION, AS IN THE COLLECTIVE-BARGAINING
PROCESS, THE INTERESTS OF THE INDIVIDUAL EMPLOYEE MAY BE SUBORDINATED
TO THE COLLECTIVE INTERESTS OF ALL EMPLOYEES IN THE BARGAINING UNIT. 
SEE J. I. CASE CO. V. NLRB, 321 U.S. 332 (1944).  MOREOVER, HARMONY OF
INTEREST BETWEEN THE UNION AND THE INDIVIDUAL EMPLOYEE CANNOT ALWAYS BE
PRESUMED, ESPECIALLY WHERE A CLAIM OF RACIAL DISCRIMINATION IS MADE. 
SEE, E.G., STEELE V. LOUISVILLE & N. R. CO., 323 U.S. 192 (1944);
TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN, 323 U.S. 210 (1944). 
AND A BREACH OF THE UNION'S DUTY OF FAIR REPRESENTATION MAY PROVE
DIFFICULT TO ESTABLISH.  SEE VACA V. SIPES, SUPRA; HUMPHREY V. MOORE,
375 U.S. 335, 342, 348 - 351 (1964).  IN THIS RESPECT, IT IS NOTEWORTHY
THAT CONGRESS THOUGHT IT NECESSARY TO AFFORD THE PROTECTIONS OF TITLE
VII AGAINST UNIONS AS WELL AS EMPLOYERS.  SEE 42 U.S.C. 2000E - 2(C). 

/20/  IN RIOS, THE COURT SET FORTH THE FOLLOWING DEFERRAL STANDARD:
"FIRST, THERE MAY BE NO DEFERENCE TO THE DECISION OF THE ARBITRATOR
UNLESS THE CONTRACTUAL RIGHT COINCIDES WITH RIGHTS UNDER TITLE VII. 
SECOND, IT MUST BE PLAIN THAT THE ARBITRATOR'S DECISION IS IN NO WAY
VIOLATIVE OF THE PRIVATE RIGHTS GUARANTEED BY TITLE VII, NOR OF THE
PUBLIC POLICY WHICH INHERES IN TITLE VII.  IN ADDITION, BEFORE
DEFERRING, THE DISTRICT COURT MUST BE SATISFIED THAT (1) THE FACTUAL
ISSUES BEFORE IT ARE IDENTICAL TO THOSE DECIDED BY THE ARBITRATOR; (2)
THE ARBITRATOR HAD POWER UNDER THE COLLECTIVE AGREEMENT TO DECIDE THE
ULTIMATE ISSUE OF DISCRIMINATION; (3) THE EVIDENCE PRESENTED AT THE
ARBITRAL HEARING DEALT ADEQUATELY WITH ALL FACTUAL ISSUES; (4) THE
ARBITRATOR ACTUALLY DECIDED THE FACTUAL ISSUES PRESENTED TO THE COURT;
(5) THE ARBITRATION PROCEEDING WAS FAIR AND REGULAR AND FREE OF
PROCEDURAL INFIRMITIES.  THE BURDEN OF PROOF IN ESTABLISHING THESE
CONDITIONS OF LIMITATION WILL BE UPON THE RESPONDENT AS DISTINGUISHED
FROM THE CLAIMANT."  467 F.2D, AT 58.  FOR A DISCUSSION OF THE PROBLEMS
POSED BY APPLICATION OF THE RIOS STANDARD, SEE NOTE, JUDICIAL DEFERENCE
TO ARBITRATORS' DECISIONS IN TITLE VII CASES, 26 STAN.  L. REV. 421
(1974). 

/21/  WE ADOPT NO STANDARDS AS TO THE WEIGHT TO BE ACCORDED AN
ARBITRAL DECISION, SINCE THIS MUST BE DETERMINED IN THE COURT'S
DISCRETION WITH REGARD TO THE FACTS AND CIRCUMSTANCES OF EACH CASE. 
RELEVANT FACTORS INCLUDE THE EXISTENCE OF PROVISIONS IN THE COLLECTIVE
BARGAINING AGREEMENT THAT CONFORM SUBSTANTIALLY WITH TITLE VII, THE
DEGREE OF PROCEDURAL FAIRNESS IN THE ARBITRAL FORUM, ADEQUACY OF THE
RECORD WITH RESPECT TO THE ISSUE OF DISCRIMINATION, AND THE SPECIAL
COMPETENCE OF PARTICULAR ARBITRATORS.  WHERE AN ARBITRAL DETERMINATION
GIVES FULL CONSIDERATION TO AN EMPLOYEE'S TITLE VII RIGHTS, A COURT MAY
PROPERLY ACCORD IT GREAT WEIGHT.  THIS IS ESPECIALLY TRUE WHERE THE
ISSUE IS SOLELY ONE OF FACT, SPECIFICALLY ADDRESSED BY THE PARTIES AND
DECIDED BY THE ARBITRATOR ON THE BASIS OF AN ADEQUATE RECORD.  BUT
COURTS SHOULD EVER BE MINDFUL THAT CONGRESS, IN ENACTING TITLE VII,
THOUGHT IT NECESSARY TO PROVIDE A JUDICIAL FORUM FOR THE ULTIMATE
RESOLUTION OF DISCRIMINATORY EMPLOYMENT CLAIMS.  IT IS THE DUTY OF
COURTS TO ASSURE THE FULL AVAILABILITY OF THIS FORUM. 

PAUL J. SPIEGELMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS RUSSELL SPECTER. 

ROBERT G. GOOD ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL POTTINGER, KEITH A
JONES, DENIS F. GORDON, EILEEN M. STEIN, JOSEPH T. EDDINS, AND BEATRICE
ROSENBERG. 
..END :
























SAMPSON V. MURRAY, 415 U.S. 61 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 72 - 403.  ARGUED NOVEMBER 14, 1973--DECIDED FEBRUARY

         19, 1974; 149 U.S. APP. D.C. 256, 462 F.2D 871,

          REVERSED. 


    UPON BEING NOTIFIED THAT SHE WAS GOING TO BE DISCHARGED ON A

  SPECIFIC DATE FROM HER POSITION AS A PROBATIONARY GOVERNMENT

  EMPLOYEE, RESPONDENT FILED THIS ACTION CLAIMING THAT THE

  APPLICABLE CIVIL SERVICE REGULATIONS FOR DISCHARGE OF

  PROBATIONARY EMPLOYEES HAD NOT BEEN FOLLOWED, AND SEEKING A

  TEMPORARY INJUNCTION AGAINST HER DISMISSAL PENDING AN

  ADMINISTRATIVE APPEAL TO THE CIVIL SERVICE COMMISSION (CSC).  THE

  DISTRICT COURT GRANTED A TEMPORARY RESTRAINING ORDER, AND AFTER

  AN ADVERSARY HEARING AT WHICH THE GOVERNMENT DECLINED TO PRODUCE

  THE DISCHARGING OFFICIAL AS A WITNESS TO TESTIFY AS TO THE

  REASONS FOR THE DISMISSAL, ORDERED THE TEMPORARY INJUNCTIVE

  RELIEF CONTINUED.  THE COURT OF APPEALS AFFIRMED, REJECTING THE

  GOVERNMENT'S CONTENTION THAT THE DISTRICT COURT HAD NO AUTHORITY

  TO GRANT TEMPORARY INJUNCTIVE RELIEF IN THIS CLASS OF CASES, AND

  HOLDING THAT THE RELIEF GRANTED WAS WITHIN THE PERMISSIBLE BOUNDS

  OF THE DISTRICT COURT'S DISCRETION.  HELD:  WHILE THE DISTRICT

  COURT IS NOT TOTALLY WITHOUT AUTHORITY TO GRANT INTERIM

  INJUNCTIVE RELIEF TO A DISCHARGED GOVERNMENT EMPLOYEE,

  NEVERTHELESS UNDER THE STANDARDS THAT MUST GOVERN THE ISSUANCE OF

  SUCH RELIEF THE DISTRICT COURT'S ISSURANCE OF THE TEMPORARY

  INJUNCTIVE RELIEF HERE CANNOT BE SUSTAINED.  PP. 68 - 92. 

     (A) THE DISTRICT COURT'S AUTHORITY TO REVIEW AGENCY ACTION,

  SERVICE V. DULLES, 534 U.S. 363, DOES NOT COME INTO PLAY UNTIL IT

 MAY BE AUTHORITATIVELY SAID THAT THE ADMINISTRATIVE DECISION TO

  DISCHARGE AN EMPLOYEE DOES IN FACT FAIL TO CONFORM TO THE

  APPLICABLE REGULATIONS, AND UNTIL ADMINISTRATIVE ACTION HAS

  BECOME FINAL, NO COURT IS IN A POSITION TO SAY THAT SUCH ACTION

  DID OR DID NOT CONFORM TO THE REGULATIONS.  HERE THE DISTRICT

  COURT AUTHORIZED, ON AN INTERIM BASIS, RELIEF THAT THE CSC HAD

  NEITHER CONSIDERED NOR AUTHORIZED--THE MANDATORY REINSTATEMENT OF

  RESPONDENT IN HER GOVERNMENT POSITION.  SCRIPPS-HOWARD RADIO V.

  FCC, 316 U.S. 4; FTC V. DEAN FOODS CO., 384 U.S. 597,

  DISTINGUISHED.  PP. 71 - 78. 

     (B) CONSIDERING THE DISRUPTIVE EFFECT THAT THE GRAND OF

  TEMPORARY RELIEF HERE WAS LIKELY TO HAVE ON THE ADMINISTRATIVE

  PROCESS, AND IN VIEW OF THE HISTORICAL DENIAL OF ALL EQUITABLE

  RELIEF BY FEDERAL COURTS IN DISPUTES INVOLVING DISCHARGE OF

  GOVERNMENT EMPLOYEES; THE WELL-ESTABLISHED RULE THAT GOVERNMENT

  BE GRANTED THE WIDEST LATITUDE IN HANDLING ITS OWN INTERNAL

  AFFAIRS; AND THE TRADITIONAL UNWILLINGNESS OF EQUITY COURTS TO

  ENFORCE PERSONAL SERVICE CONTRACTS, THE COURT OF APPEALS ERRED IN

  ROUTINELY APPLYING THE TRADITIONAL STANDARDS GOVERNING MORE

  ORTHODOX "STAYS," AND RESPONDENT AT THE VERY LEAST MUST SHOW

  IRREPARABLE INJURY SUFFICIENT IN KIND AND DEGREE TO OVERRIDE THE

  FOREGOING FACTORS.  PP. 78 - 84. 

     (C) VIEWING THE ORDER AT ISSUE AS A PRELIMINARY INJUNCTION,
THE

  COURT OF APPEALS ERRED IN SUGGESTING THAT AT THIS STAGE OF THE

  PROCEEDING THE DISTRICT COURT NEED NOT HAVE CONCLUDED THAT THERE

  WAS ACTUALLY UNVERIFIED INJURY, AND IN INTIMATING THAT, AS

  ALLEGED IN RESPONDENT'S UNVERIFIED COMPLAINT, EITHER LOSS OF

  EARNINGS OR DAMAGE TO REPUTATION MIGHT AFFORD A BASIS FOR A

  FINDING OF IRREPARABLE INJURY.  PP. 84 - 92. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, POST, P. 92.  MARSHALL, J., FILED A
DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED, POST, P. 97. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENT IS A PROBATIONARY EMPLOYEE IN THE PUBLIC BUILDINGS
SERVICE OF THE GENERAL SERVICES ADMINISTRATION (GSA).  IN MAY 1971,
APPROXIMATELY FOUR MONTHS AFTER HER EMPLOYMENT WITH GSA BEGAN, SHE WAS
ADVISED IN WRITING BY THE ACTING COMMISSIONER OF THE PUBLIC BUILDINGS
SERVICE, W. H. SANDERS, THAT SHE WOULD BE DISCHARGED FROM HER POSITION
ON MAY 29, 1971.  SHE THEN FILED THIS ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, SEEKING TO TEMPORARILY
ENJOIN HER DISMISSAL PENDING HER PURSUIT OF AN ADMINISTRATIVE APPEAL TO
THE CIVIL SERVICE COMMISSION.  THE DISTRICT COURT GRANTED A TEMPORARY
RESTRAINING ORDER, AND AFTER AN ADVERSARY HEARING EXTENDED THE INTERIM
INJUNCTIVE RELIEF IN FAVOR OR RESPONDENT UNTIL THE ACTING COMMISSIONER
OF THE PUBLIC BUILDINGS SERVICE TESTIFIED ABOUT THE REASONS FOR
RESPONDENT'S DISMISSAL. 

A DIVIDED COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
AFFIRMED, /1/  REJECTING THE GOVERNMENT'S CONTENTION THAT THE DISTRICT
COURT HAD NO AUTHORITY WHATEVER TO GRANT TEMPORARY INJUNCTIVE RELIEF IN
THIS CLASS OF CASES, AND HOLDING THAT THE RELIEF GRANTED BY THE
DISTRICT COURT IN THIS PARTICULAR CASE WAS WITHIN THE PERMISSIBLE
BOUNDS OF ITS DISCRETION.  WE GRANTED CERTIORARI, SUB NOM.  KUNZIG V.
MURRAY, 410 U.S. 981 (1973).  WE AGREE WITH THE COURT OF APPEALS THAT
THE DISTRICT COURT IS NOT TOTALLY WITHOUT AUTHORITY TO GRANT INTERIM
INJUNCTIVE RELIEF TO A DISCHARGED GOVERNMENT EMPLOYEE, BUT CONCLUDE
THAT, JUDGED BY THE STANDARDS WHICH WE HOLD MUST GOVERN THE ISSUANCE OF
SUCH RELIEF, THE ISSUANCE OF THE TEMPORARY INJUNCTIVE RELIEF BY THE
DISTRICT COURT IN THIS CASE CANNOT BE SUSTAINED. 

        I 

RESPONDENT WAS HIRED AS A PROGRAM ANALYST BY THE PUBLIC BUILDINGS
SERVICE AFTER PREVIOUS EMPLOYMENT IN THE DEFENSE INTELLIGENCE AGENCY. 
UNDER THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, THIS CAREER
CONDITIONAL APPOINTMENT WAS SUBJECT TO ONE-YEAR PROBATIONARY PERIOD. 
/2/  APPLICABLE REGULATIONS PROVIDED THAT RESPONDENT, DURING THIS
INITIAL TERM OF PROBATION, COULD BE DISMISSED WITHOUT BEING AFFORDED
THE GREATER PROCEDURAL ADVANTAGES AVAILABLE TO PERMANENT EMPLOYEES IN
THE COMPETITIVE SERVICE.  /3/  THE UNDERLYING DISPUTE BETWEEN THE
PARTIES ARISES OVER WHETHER THE MORE LIMITED PROCEDURAL REQUIREMENTS
APPLICABLE TO PROBATIONARY EMPLOYEES WERE SATISFIED BY PETITIONERS IN
THIS CASE. 

THE PROCEDURAL PROTECTIONS WHICH THE REGULATIONS ACCORD TO MOST
DISMISSED PROBATIONARY EMPLOYEES ARE LIMITED.  COMMONLY A GOVERNMENT
AGENCY MAY DISMISS A PROBATIONARY EMPLOYEE FOUND UNQUALIFIED FOR
CONTINUED EMPLOYMENT SIMPLY "BY NOTIFYING HIM IN WRITING AS TO WHY HE
IS BEING SEPARATED AND THE EFFECTIVE DATE OF THE ACTION."  /4/  MORE
ELABORATE PROCEDURES ARE SPECIFIED WHEN THE GROUND FOR TERMINATING A
PROBATIONARY EMPLOYEE IS "FOR CONDITIONS ARISING BEFORE APPOINTMENT." 
/5/  IN SUCH CASES THE REGULATIONS REQUIRE THAT THE EMPLOYEE RECEIVE
"AN ADVANCE WRITTEN NOTICE STATING THE REASONS, SPECIFICALLY AND IN
DETAIL, FOR THE PROPOSED ACTION"; THAT THE EMPLOYEE BE GIVEN AN
OPPORTUNITY TO RESPOND IN WRITING AND TO FURNISH AFFIDAVITS IN SUPPORT
OF HIS RESPONSE; THAT THE AGENCY "CONSIDER" ANY ANSWER FILED BY THE
EMPLOYEE IN REACHING ITS DECISION; AND THAT THE EMPLOYEE BE NOTIFIED OF
THE AGENCY'S DECISION AT THE EARLIEST PRACTICABLE DATE.  /6/
RESPONDENT CONTENDS THAT HER TERMINATION WAS BASED IN PART ON HER
ACTIVITIES WHILE IN THE COURSE OF HER PREVIOUS EMPLOYMENT IN THE
DEFENSE INTELLIGENCE AGENCY, AND THAT THEREFORE SHE WAS ENTITLED TO AN
OPPORTUNITY TO FILE AN ANSWER UNDER THIS LATTER PROVISION. 

THE LETTER WHICH RESPONDENT RECEIVED FROM THE ACTING COMMISSIONER,
NOTIFYING HER OF THE DATE OF HER DISCHARGE, STATED THAT THE REASON FOR
HER DISCHARGE WAS HER "COMPLETE UNWILLINGNESS TO FOLLOW OFFICE
PROCEDURE AND TO ACCEPT DIRECTION FROM (HER) SUPERVISORS."  AFTER
RECEIPT OF THE LETTER, RESPONDENT'S COUNSEL MET WITH A GSA PERSONNEL
OFFICER TO DISCUSS HER SITUATION AND, IN THE COURSE OF THE MEETING, WAS
SHOWN A MEMORANDUM PREPARED BY AN OFFICER OF THE PUBLIC BUILDINGS
SERVICE UPON WHICH SANDERS APPARENTLY BASED HIS DECISION TO TERMINATION
RESPONDENT'S EMPLOYMENT.  THE MEMORANDUM CONTAINED BOTH A DISCUSSION OF
RESPONDENT'S CONDUCT IN HER JOB WITH THE PUBLIC BUILDINGS SERVICE AND A
DISCUSSION OF HER CONDUCT DURING HER PREVIOUS EMPLOYMENT AT THE DEFENSE
INTELLIGENCY AGENCY.  RELYING UPON THE INCLUSION OF THE INFORMATION
CONCERNING HER PREVIOUS EMPLOYMENT, RESPONDENT'S COUNSEL REQUESTED THAT
SHE BE GIVEN A DETAILED STATEMENT OF THE CHARGES AGAINST HER AND AN
OPPORTUNITY TO REPLY--THE PROCEDURES TO WHICH SHE WOULD BE ENTITLED
UNDER THE REGULATIONS IF IN FACT THE BASIS OF HER DISCHARGE HAD BEEN
CONDUCT DURING HER PREVIOUS EMPLOYMENT.  THIS REQUEST WAS DENIED. 

RESPONDENT THEN FILED AN ADMINISTRATIVE APPEAL WITH THE CIVIL
SERVICE COMMISSION PURSUANT TO THE PROVISIONS OF 5 CFR 315.806(C),
ALLEGING THAT HER TERMINATION WAS SUBJECT TO 315.805 AND WAS NOT
EFFECTED IN ACCORDANCE WITH THE PROCEDURAL REQUIREMENTS OF THAT
SHE FILED THIS ACTION.  HER COMPLAINT ALLEGED THAT THE AGENCY HAD
FAILED TO FOLLOW THE APPROPRIATE CIVIL SERVICE REGULATIONS, ALLEGED
THAT HER PROSPECTIVE DISCHARGE WOULD DEPRIVE HER OF INCOME AND CAUSE
HER TO SUFFER THE EMBARRASSMENT OF BEING WRONGFULLY DISCHARGED, AND
REQUESTED A TEMPORARY RESTRAINING ORDER AND INTERIM INJUNCTIVE RELIEF
AGAINST HER REMOVAL FROM EMPLOYMENT PENDING AGENCY DETERMINATION OF HER
APPEAL.  THE DISTRICT COURT GRANTED THE TEMPORARY RESTRAINING ORDER AT
THE TIME OF THE FILING OF RESPONDENT'S COMPLAINT, AND SET A HEARING ON
THE APPLICATION FOR A TEMPORARY INJUNCTION FOR THE FOLLOWING WEEK. 

AT THE HEARING ON THE TEMPORARY INJUNCTION, THE DISTRICT COURT
EXPRESSED ITS DESIRE TO HEAR THE TESTIMONY OF SANDERS IN PERSON, AND
REFUSED TO RESOLVE THE CONTROVERSY ON THE BASIS OF HIS AFFIDAVIT WHICH
THE GOVERNMENT OFFERED TO FURNISH.  WHEN THE GOVERNMENT DECLINED TO
PRODUCE SANDERS, THE COURT ORDERED THE TEMPORARY INJUNCTIVE RELIEF
CONTINUED, STATING THAT "PLAINTIFF MAY SUFFER IMMEDIATE AND IRREPARABLE
INJURY, LOSS AND DAMAGE BEFORE THE CIVIL SERVICE COMMISSION CAN
CONSIDER PLAINTIFF'S CLAIM."  /8/  THE GOVERNMENT, DESIRING TO TEST THE
AUTHORITY OF THE DISTRICT COURT TO ENTER SUCH AN ORDER, HAS NOT
PRODUCED SANDERS, AND THE INTERIM RELIEF AWARDED RESPONDENT CONTINUES
IN EFFECT AT THIS TIME. 

ON THE GOVERNMENT'S APPEAL TO THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT, THE ORDER OF THE DISTRICT COURT WAS AFFIRMED. 
ALTHOUGH RECOGNIZING THAT "CONGRESS PRESUMABLY COULD REMOVE THE
JURISDICTION OF THE DISTRICT COURTS TO GRANT SUCH EQUITABLE INTERIM
RELIEF, IN LIGHT OF THE REMEDIES AVAILABLE,"  /9/  THE COURT FOUND THAT
THE DISTRICT COURT HAD THE POWER TO GRANT RELIEF IN THE ABSENCE OF AN
EXPLICIT PROHIBITION FROM CONGRESS.  THE COURT OF APPEALS DECIDED THAT
THE DISTRICT COURT ACTED WITHIN THE BOUNDS OF PERMISSIBLE DISCRETION IN
REQUIRING SANDERS TO APPEAR AND TESTIFY, /10/  AND IN CONTINUING THE
TEMPORARY INJUNCTIVE RELIEF UNTIL HE WAS PRODUCED WAS A WITNESS BY THE
GOVERNMENT. 

        II 

WHILE IT WOULD DOUBTLESS BE INTELLECTUALLY NEATER TO COMPLETELY
SEPARATE THE QUESTION WHETHER A DISTRICT COURT HAS AUTHORITY TO ISSUE
ANY TEMPORARY INJUNCTIVE RELIEF AT THE BEHEST OF A DISCHARGED
GOVERNMENT EMPLOYEE FROM THE QUESTION WHETHER THE RELIEF GRANTED IN
THIS CASE WAS PROPER, WE DO NOT BELIEVE THE QUESTIONS MAY BE THUS
BIFURCATED INTO TWO WATERTIGHT COMPARTMENTS.  WE BELIEVE THE BASIS FOR
OUR DECISION CAN BEST BE ILLUMINATED BY TAKING UP THE VARIOUS ARGUMENTS
WHICH THE PARTIES URGE UPON US. 

PETITIONERS POINT OUT, AND THE COURT OF APPEALS BELOW APPARENTLY
RECOGNIZED, THAT CONGRESS HAS GIVEN THE DISTRICT COURTS NO EXPRESS
STATUTORY AUTHORIZATION TO ISSUE TEMPORARY "STAYS" IN CIVIL SERVICE
CASES.  ALTHOUGH CONGRESS HAS OFTEN SPECIFICALLY CONFERRED SUCH
AUTHORITY WHEN IT SO DESIRED--FOR EXAMPLE, IN THE ENABLING STATUTES
ESTABLISHING THE NLRB, /11/  THE FTC, /12/  THE FPC, /13/  AND THE SEC
/14/  --THE STATUTES GOVERNING THE CIVIL SERVICE COMMISSION ARE SILENT
ON THE QUESTION.  /15/  THE RULES AND REGULATIONS PROMULGATED PURSUANT
TO A BROAD GRANT OF STATUTORY AUTHORITY LIKEWISE MAKE NO PROVISION FOR
INTERLOCUTORY JUDICIAL INTERVENTION. 

THE COURT OF APPEALS NEVERTHELESS FOUND THAT THE DISTRICT COURTS HAD
TRADITIONAL POWER TO GRANT STAYS IN SUCH PERSONNEL CASES.  COMMENTING
UPON THE GOVERNMENT'S ARGUMENTS FOR REVERSAL BELOW, THE COURT STATED: 

"IT IS ASSERTED THAT THE CIVIL SERVICE COMMISSION HAS BEEN GIVEN
EXCLUSIVE REVIEW JURISDICTION.  BUT, AS NOTED INITIALLY, THERE IS NO
STATUTORY POWER IN THE CIVIL SERVICE COMMISSION TO GRANT A TEMPORARY
STAY OF DISCHARGE.  PRIOR TO THE CIVIL SERVICE ACT A UNITED STATES
DISTRICT COURT WOULD CERTAINLY HAVE HAD JURISDICTION AND POWER TO GRANT
SUCH TEMPORARY RELIEF.  THE STATUTE DID NOT EXPLICITLY TAKE IT AWAY,
NOR IMPLICITLY BY CONFERRING SUCH JURISDICTION AND POWER ON THE CSC; WE
HOLD THE DISTRICT COURT STILL HAS JURISDICTION AND MAY EXERCISE THE
POWER UNDER ESTABLISHED STANDARDS IN APPROPRIATE CIRCUMSTANCES."  /16/ 

IF THE ISSUE WERE TO TURN SOLELY ON THE EARLIER DECISIONS OF THIS
COURT EXAMINING THE AUTHORITY OF FEDERAL COURTS TO INTERVENE IN
DISPUTES ABOUT GOVERNMENTAL EMPLOYMENT, WE THINK THIS ASSUMPTION OF THE
COURT OF APPEALS IS WRONG.  IN KEIM V. UNITED STATES, 177 U.S. 290
(1900), THIS COURT HELD THAT THE COURT OF CLAIMS HAD NO AUTHORITY TO
AWARD DAMAGES TO AN EMPLOYEE WHO CLAIMED HE HAD BEEN WRONGFULLY
DISCHARGED BY HIS FEDERAL EMPLOYER.  /17/  IN WHITE V. BERRY, 171 U.S.
366 (1898), A GOVERNMENT EMPLOYEE HAD SOUGHT TO ENJOIN HIS EMPLOYER
FROM DISMISSING HIM FROM OFFICE, ALLEGING THAT THE REMOVAL WOULD
VIOLATE BOTH THE CIVIL SERVICE ACT AND THE APPLICABLE REGULATIONS. 
/18/  THE CIRCUIT COURT ASSUMED JURISDICTION AND ISSUED AN ORDER
PROHIBITING THE DEFENDANT FROM INTERFERING WITH THE PLAINTIFF'S
DISCHARGE OF HIS DUTY "'UNTIL HE SHALL BE REMOVED THEREFROM BY PROPER
PROCEEDINGS HAD UNDER THE CIVIL SERVICE ACT AND THE RULES AND
REGULATIONS MADE THEREUNDER OR BY JUDICIAL PROCEEDINGS AT LAW . . . '"
THIS COURT REVERSED.  DISCUSSING THE APPARENTLY WELL-ESTABLISHED
PRINCIPLE THAT "'A COURT OF EQUITY WILL NOT, BY INJUNCTION, RESTRAIN AN
EXECUTIVE OFFICER FROM MAKING A WRONGFUL REMOVAL OF A SUBORDINATE
APPOINTEE,"  /20/  THE COURT HELD THAT "THE CIRCUIT COURT, SITTING IN
EQUITY, WAS WITHOUT JURISDICTION TO GRANT THE RELIEF ASKED."  /21/ 

RESPONDENT'S CASE, THEN, MUST SUCCEED, IF AT ALL, DESPITE EARLIER
ESTABLISHED PRINCIPLES REGARDING EQUITABLE INTERVENTION IN DISPUTES
OVER TENURE OF GOVERNMENTAL EMPLOYEES, AND NOT BECAUSE OF THEM.  MUCH
WATER HAS FLOWED OVER THE DAM SINCE 1898, AND CASES SUCH AS SERVICE V.
DULLES, 354 U.S. 363 (1957), CITED BY THE DISTRICT COURT IN ITS
MEMORANDUM OPINION IN THIS CASE, ESTABLISH THAT FEDERAL COURTS DO HAVE
AUTHORITY TO REVIEW THE CLAIM OF A DISCHARGED GOVERNMENTAL EMPLOYEE
THAT THE AGENCY EFFECTUATING THE DISCHARGE HAS NOT FOLLOWED
ADMINISTRATIVE REGULATIONS.  /22/  IN THAT CASE, HOWEVER, JUDICIAL
PROCEEDINGS WERE NOT COMMENCED UNTIL THE ADMINISTRATIVE REMEDY HAD BEEN
UNSUCCESSFULLY PURSUED.  /23/  THE FACT THAT GOVERNMENT PERSONNEL
DECISIONS ARE NOW ULTIMATELY SUBJECT TO THE TYPE OF JUDICIAL REVIEW
SOUGHT IN SERVICE V. DULLES, SUPRA, DOES NOT, WITHOUT MORE, CREATE THE
AUTHORITY TO ISSUE INTERIM INJUNCTIVE RELIEF WHICH WAS HELD LACKING IN
CASES SUCH AS WHITE V. BERRY, SUPRA. 

THE COURT OF APPEALS FOUND SUPPORT FOR ITS AFFIRMANCE OF THE
DISTRICT COURT'S GRANT OF INJUNCTIVE RELIEF IN SCRIPPS-HOWARD RADIO V.
FCC, 316 U.S. 4 (1942).  IN SCRIPPS-HOWARD THE LICENSEE OF A CINCINNATI
RADIO STATION PETITIONED THE FCC TO VACATE AN ORDER PERMITTING A
COLUMBUS RADIO STATION TO CHANGE ITS FREQUENCY AND TO INCREASE ITS
BROADCASTING POWER.  THE LICENSEE ALSO REQUESTED A HEARING.  WHEN THE
COMMISSION DENIED THE PETITION, THE LICENSEE FILED A STATUTORY APPEAL
IN THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA AND, IN
CONJUNCTION WITH THE DOCKETING OF THE APPEAL, ASKED THE COURT TO STAY
THE FCC ORDER PENDING ITS DECISION.  THE COURT OF APPEALS, APPARENTLY
DEPARTING FROM A LONGSTANDING POLICY OF ISSUING SUCH STAYS, /24/
DECLINED TO DO SO IN THIS CASE AND ULTIMATELY CERTIFIED THE QUESTION OF
ITS POWER TO THIS COURT.  /25/ 

THIS COURT HELD THAT THE COURT OF APPEALS HAD POWER TO ISSUE THE
STAY, ANALOGIZING IT TO THE TRADITIONAL STAY GRANTED BY AN APPELLATE
COURT PENDING REVIEW OF AN INFERIOR COURT'S DECISION: 

"IT HAS ALWAYS BEEN HELD, THEREFORE, THAT AS PART OF ITS TRADITIONAL
EQUIPMENT FOR THE ADMINISTRATION OF JUSTICE, A FEDERAL COURT CAN STAY
THE ENFORCEMENT OF A JUDGMENT PENDING THE OUTCOME OF AN APPEAL."  /26/
BUT IN SCRIPPS-HOWARD THE LOSING PARTY BEFORE THE AGENCY SOUGHT AN
INTERIM STAY OF FINAL AGENCY ACTION PENDING STATUTORY JUDICIAL REVIEW. 
/27/  A LONG PROGRESSION OF CASES IN THIS COURT HAD ESTABLISHED THE
AUTHORITY OF A COURT, EMPOWERED BY STATUTE TO EXERCISE APPELLATE
JURISDICTION.  /28/  THE ALL WRITS ACT, FIRST ENACTED AS A PART OF THE
JUDICIARY ACT OF 1789, PROVIDED STATUTORY CONFIRMATION OF THIS
AUTHORITY.  /29/  THIS COURT IN SCRIPPS-HOWARD HELD THAT THE SAME
PRINCIPLES GOVERNED THE AUTHORITY OF COURTS CHARGED BY STATUTE WITH
JUDICIAL REVIEW OF AGENCY DECISIONS, AND THAT THE AUTHORITY TO GRANT A
STAY EXISTS IN SUCH A COURT EVEN THOUGH NOT EXPRESSLY CONFERRED BY THE
STATUTE WHICH CONFERS APPELLATE JURISDICTION.     SCRIPPS-HOWARD,
SUPRA, OF COURSE, IS NOT THE INSTANT CASE.  THE AUTHORITY OF THE
DISTRICT COURT TO REVIEW AGENCY ACTION UNDER SERVICE V. DULLES, SUPRA,
DOES NOT COME INTO PLAY UNTIL IT MAY BE AUTHORITATIVELY SAID THAT THE
ADMINISTRATIVE DECISION TO DISCHARGE AN EMPLOYEE DOES IN FACT FAIL TO
CONFORM TO APPLICABLE REGULATIONS.  /30/  UNTIL ADMINISTRATIVE ACTION
HAS BECOME FINAL, NO COURT IS IN A POSITION TO SAY THAT SUCH ACTION DID
OR DID NOT CONFORM TO APPLICABLE REGULATIONS.  HERE RESPONDENT HAD
OBTAINED NO ADMINISTRATIVE DETERMINATION OF HER APPEAL AT THE TIME SHE
BROUGHT THE ACTION IN THE DISTRICT COURT.  SHE WAS IN EFFECT ASKING
THAT COURT TO GRANT HER, ON AN INTERIM BASIS, RELIEF WHICH THE
ADMINISTRATIVE AGENCY CHARGED WITH REVIEW OF HER EMPLOYER'S ACTION
COULD GRANT HER ONLY AFTER IT HAD MADE A DETERMINATION ON THE MERITS. 

WHILE BOTH THE DISTRICT COURT AND THE COURT OF APPEALS CHARACTERIZED
THE DISTRICT COURT'S INTERVENTION AS A "STAY," THE MANDATORY RETENTION
OF RESPONDENT IN THE POSITION FROM WHICH WE WAS DISMISSED ACTUALLY
SERVED TO PROVIDE THE MOST EXTENSIVE RELIEF WHICH SHE MIGHT CONCEIVABLY
OBTAIN FROM THE AGENCY AFTER ITS REVIEW ON THE MERITS.  IT MAY WELL BE
THAT THE CIVIL SERVICE COMMISSION, SHOULD IT HAVE AGREED WITH
RESPONDENT'S VERSION OF THE BASIS FOR HER DISMISSAL, WOULD PROHIBIT THE
FINAL SEPARATION OF RESPONDENT UNLESS AND UNTIL PROPER PROCEDURES HAD
BEEN FOLLOWED.  BUT THIS IS NOT TO SAY THAT IT WOULD HOLD RESPONDENT TO
BE ENTITLED TO FULL REINSTATEMENT WITH THE ATTENDANT TENSION WITH HER
SUPERIORS THAT THE AGENCY INTENDED TO AVOID BY DISMISSING HER. 
CONGRESS HAS PROVIDED THAT A WRONGFULLY DISMISSED EMPLOYEE SHALL
RECEIVE FULL PAYMENT AND BENEFITS FOR ANY TIME DURING WHICH THE
EMPLOYEE WAS WRONGFULLY DISCHARGED FROM EMPLOYMENT.  /31/  THE CIVIL
SERVICE COMMISSION COULD CONCEIVABLY ACCOMMODATE THE CONFLICTING CLAIMS
IN THIS CASE BY DIRECTING RESPONDENT'S SUPERIORS TO PROVIDE HER WITH AN
OPPORTUNITY TO REPLY BY AFFIDAVIT, AND BY ORDERING THAT SHE RECEIVE
BACKPAY FOR ANY PERIOD OF HER DISMISSAL PRIOR TO THE COMPLETION OF THE
TYPE OF DISMISSAL PROCEDURE REQUIRED BY THE REGULATIONS. 

THE COURT IN SCRIPPS-HOWARD RECOGNIZED THAT CERTAIN FORMS OF
EQUITABLE RELIEF COULD NOT PROPERLY BE GRANTED BY FEDERAL COURTS.  THE
COURT SPECIFICALLY CONTRASTED THE STAY OF A LICENSE GRANT AND THE STAY
OF A LICENSE DENIAL, FINDING THAT THE LATTER WOULD HAVE NO EFFECT: 

"OF COURSE, NO COURT CAN GRANT AN APPLICANT AN AUTHORIZATION WHICH
THE COMMISSION HAS REFUSED.  NO ORDER THAT THE COURT OF APPEALS COULD
MAKE WOULD ENABLE AN APPLICANT TO GO ON THE AIR WHEN THE COMMISSION HAS
DENIED HIM A LICENSE TO DO SO.  A STAY OF AN ORDER DENYING AN
APPLICATION WOULD IN THE NATURE OF THINGS STAY NOTHING.  IT COULD NOT
OPERATE AS AN AFFIRMATIVE AUTHORIZATION OF THAT WHICH THE COMMISSION
HAS REFUSED TO AUTHORIZE."  /32/ SURELY THAT CONCLUSION WOULD NOT VARY
DEPENDING UPON WHETHER THE RADIO STATION HAD STARTED BROADCASTING ON
ITS OWN INITIATIVE AND SOUGHT TO STAY A COMMISSION ORDER DIRECTING IT
TO CEASE.  YET HERE THE DISTRICT COURT DID AUTHORIZE, ON AN INTERIM
BASIS, RELIEF WHICH THE CIVIL SERVICE COMMISSION HAD NEITHER CONSIDERED
NOR AUTHORIZED--THE MANDATORY REINSTATEMENT OF RESPONDENT IN HER
GOVERNMENT POSITION.  WE ARE SATISFIED THAT SCRIPPS-HOWARD, INVOLVING
AS IT DID THE TRADITIONAL AUTHORITY OF REVIEWING COURTS TO GRANT STAYS,
PROVIDES SCANT SUPPORT FOR THE INJUNCTION ISSUED HERE. 

THE COURT OF APPEALS ALSO RELIED UPON FTC V. DEAN FOODS CO., 384
U.S. 597 (1966), IN REACHING ITS DECISION.  THERE A CLOSELY DIVIDED
COURT HELD THAT A COURT OF APPEALS HAVING ULTIMATE JURISDICTION TO
REVIEW ORDERS OF THE FEDERAL TRADE COMMISSION, MIGHT UPON THE
COMMISSION'S APPLICATION, /33/  GRANT A TEMPORARY INJUNCTION TO
PRESERVE THE CONTROVERSY BEFORE THE AGENCY.  THE COMMISSION'S
APPLICATION ALLEGED, /34/  AND THE COURT ACCEPTED, /35/  THAT REFUSAL
TO GRANT THE INJUNCTION WOULD RESULT IN THE PRACTICAL DISAPPEARANCE OF
ONE OF THE ENTITIES WHOSE MERGER THE COMMISSION SOUGHT TO CHALLENGE. 
THE DISAPPEARANCE, IN TURN, WOULD MEAN THAT THE AGENCY, AND THE COURT
ENTRUSTED BY STATUTE WITH AUTHORITY TO REVIEW THE AGENCY'S DECISION,
WOULD BE INCAPABLE OF IMPLEMENTING THEIR STATUTORY DUTIES FASHIONING
EFFECTIVE RELIEF.  THUS INVOCATION OF THE ALL WRITS ACT, AS A
PRESERVATIVE OR JURISDICTION, WAS CONSIDERED APPROPRIATE. 

NEITHER THE REVIEWING JURISDICTION OF THE CIVIL SERVICE COMMISSION
NOR THAT OF THE DISTRICT COURT WOULD BE SIMILARLY FRUSTRATED BY A
DECISION OF THE DISTRICT COURT REMITTING RESPONDENT TO HER
ADMINISTRATIVE REMEDY.  CERTAINLY THE CIVIL SERVICE COMMISSION WILL BE
ABLE TO WEIGH RESPONDENT'S CONTENTIONS AND TO ORDER NECESSARY RELIEF
WITHOUT THE AID OF THE DISTRICT COURT INJUNCTION.  IN DIRECT CONTRAST
TO THE CLAIM OF THE FTC IN DEAN FOODS THAT ITS JURISDICTION WOULD BE
EFFECTIVELY DEFEATED BY DENIAL OF RELIEF, THE COMMISSION HERE HAS
ARGUED THAT JUDICIAL ACTION INTERFERES WITH THE NORMAL AGENCY PROCESS. 
/36/  AND WE SEE NOTHING IN THE RECORD TO SUGGEST THAT ANY JUDICIAL
REVIEW AVAILABLE UNDER THE DOCTRINE OF SERVICE V. DULLES WOULD BE
DEFEATED IN THE SAME MANNER AS REVIEW IN DEAN FOODS. 

WE ARE THEREFORE UNPERSUADED THAT THE TEMPORARY INJUNCTION GRANTED
BY THE DISTRICT COURT IN THIS CASE WAS JUSTIFIED EITHER BY OUR PRIOR
DECISIONS DEALING WITH THE AVAILABILITY OF INJUNCTIVE RELIEF TO
DISCHARGED FEDERAL EMPLOYEES, OR BY THOSE DEALING WITH THE AUTHORITY OR
REVIEWING COURTS TO GRANT TEMPORARY STAYS OR INJUNCTIONS PENDING FULL
APPELLATE REVIEW.  IF THE ORDER OF THE DISTRICT COURT IN THIS CASE IS
TO BE UPHELD, THE AUTHORITY MUST BE FOUND ELSEWHERE. 

        III 

THIS COURT OBSERVED IN SCRIPPS-HOWARD THAT "(THE SEARCH FOR
SIGNIFICANCE IN THE SILENCE OF CONGRESS IS TOO OFTEN THE PURSUIT OF A
MIRAGE,"  316 U.S., AT 11, AND THIS OBSERVATION CARRIES PARTICULAR
FORCE WHEN A STATUTORY SCHEME GRANTS BROAD REGULATORY LATITUDE TO AN
ADMINISTRATIVE AGENCY.  IN SCRIPPS-HOWARD A CAREFUL REVIEW OF THE
RELEVANT STATUTORY PROVISIONS AND LEGISLATIVE HISTORY PERSUADED THIS
COURT THAT CONGRESS HAD NOT INTENDED TO NULLIFY THE POWER OF AN
APPELLATE COURT, /37/  HAVING ASSUMED JURISDICTION AFTER AN AGENCY
DECISION, TO ISSUE STAYS IN AID OF ITS JURISDICTION.  THE COURT NOTED,
IN PARTICULAR, THAT STAYS WERE ALLOWED IN OTHER CASES PROCESSED THROUGH
THE FCC /38/ AND THAT THE COURT OF APPEALS HAD ROUTINELY ISSUED STAYS
IN SIMILAR CASES BEFORE UNDERTAKING AN UNEXPECTED SHIFT IN POLICY. 
/39/  BUT, AT THE OTHER END OF THE SPECTRUM, IN ARROW TRANSPORTATION
CO. V. SOUTHERN R. CO., 372 U.S. 658 (1963), THIS COURT HELD THAT A
SPECIFIC CONGRESSIONAL GRANT OF POWER TO THE ICC TO SUSPEND PROPOSED
RATE MODIFICATIONS PRECLUDED THE DISTRICT COURT FROM EXTENDING THE
SUSPENSION BY TEMPORARY INJUNCTION.  THIS WAS TRUE DESPITE ARGUMENTS
THAT DISTRICT COURTS TRADITIONALLY HAD SUCH POWER AND THAT CONGRESS DID
NOT EXPLICITLY REVOKE THE POWER BY STATUTE.  /40/  THE COURT THERE
SAID: 

"THE MORE PLAUSIBLE INFERENCE IS THAT CONGRESS MEANT TO FORECLOSE A
JUDICIAL POWER TO INTERFERE WITH THE TIMING OF RATE CHANGES WHICH WOULD
BE OUT OF HARMONY WITH THE UNIFORMITY OF RATE LEVELS FOSTERED BY THE
DOCTRINE OF PRIMARY JURISDICTION."  /41/ 

THE OVERALL SCHEME GOVERNING EMPLOYEES OF THE FEDERAL GOVERNMENT
FALLS NEATLY WITHIN NEITHER OF THESE PRECEDENTS.  UNLIKE SCRIPPS
HOWARD, TRADITIONAL STAY PRACTICE LENDS LITTLE SUPPORT TO THE SORT OF
RELIEF WHICH THE DISTRICT COURT GRANTED RESPONDENT HERE, AND THE
PRECEDENTS DEALING WITH THE AVAILABILITY OF EQUITABLE RELIEF TO
DISCHARGED GOVERNMENT EMPLOYEES ARE QUITE UNFAVORABLE TO RESPONDENT. 
UNLIKE ARROW TRANSPORTATION, SUPRA, THE ADMINISTRATIVE STRUCTURE IS FAR
MORE A CREATURE OF AGENCY REGULATIONS THAN OF STATUTE.  WE ARE THUS NOT
PREPARED TO CONCLUDE THAT CONGRESS IN THIS CLASS OF CASES HAS WHOLLY
DIVESTED THE DISTRICT COURTS OF THEIR CUSTOMARY AUTHORITY TO GRANT
TEMPORARY INJUNCTIVE RELIEF, AND TO THE EXTENT WE AGREE WITH THE COURT
OF APPEALS.  BUT MERELY BECAUSE THE FACTORS RELIED UPON BY THE
GOVERNMENT DO NOT ESTABLISH THAT THE DISTRICT COURTS ARE WHOLLY BEREFT
OF THE AUTHORITY CLAIMED FOR THEM HERE DOES NOT MEAN, AS THE COURT OF
APPEALS APPEARED TO BELIEVE, THAT TEMPORARY INJUNCTIVE RELIEF IN THIS
CLASS OF CASES IS TO BE DISPENSED WITHOUT REGARD TO THOSE FACTORS. 
WHILE CONSIDERATIONS SIMILAR TO THOSE FOUND SUFFICIENT IN ARROW
TRANSPORTATION TO TOTALLY DEPRIVE THE DISTRICT COURTS OF EQUITABLE
AUTHORITY DO NOT HAVE THAT FORCE HERE, THEY NONETHELESS ARE ENTITLED TO
GREAT WEIGHT IN THE EQUITABLE BALANCING PROCESS WHICH ATTENDS THE GRANT
OF INJUNCTIVE RELIEF. 

WE ARE DEALING IN THIS CASE NOT WITH A PERMANENT GOVERNMENT
EMPLOYEE, A CLASS FOR WHICH CONGRESS HAS SPECIFIED CERTAIN SUBSTANTIVE
AND PROCEDURAL PROTECTIONS, /42/  BUT WITH A PROBATIONARY EMPLOYEE, A
CLASS WHICH CONGRESS HAS SPECIFICALLY RECOGNIZED AS ENTITLED TO LESS
COMPREHENSIVE PROCEDURES.  SECTION 3321 OF TITLE 5 OF THE U.S.C.
DERIVED FROM THE ORIGINAL PENDLETON ACT, /43/  REQUIRES THAT CREATION
OF THIS CLASSIFICATION: 

     "THE PRESIDENT MAY PRESCRIBE RULES, WHICH SHALL PROVIDE, AS

NEARLY AS CONDITIONS OF GOOD ADMINISTRATION WARRANT, THAT THERE

  SHALL BE A PERIOD OF PROBATION BEFORE AN APPOINTMENT IN THE

  COMPETITIVE SERVICE BECOMES ABSOLUTE." 

IT IS ALSO CLEAR FROM OTHER PROVISIONS IN THE CIVIL SERVICE STATUTORY
FRAMEWORK THAT CONGRESS EXPECTED PROBATIONARY EMPLOYEES TO HAVE FEWER
PROCEDURAL RIGHTS THAN PERMANENT EMPLOYEES IN THE COMPETITIVE SERVICE. 
FOR EXAMPLE, PREFERENCE ELIGIBLES, /44/  COMMONLY VETERANS, ARE
ENTITLED TO HEARING PROCEDURES EXTENDED TO PERSONS IN THE COMPETITIVE
SERVICE ONLY AFTER THEY HAVE COMPLETED "A PROBATIONARY OR TRIAL
PERIOD."  /45/  PERSONS SUSPENDED FOR NATIONAL SECURITY REASONS ARE
GIVEN EXPANDED PROTECTION PROVIDED THEY HAVE COMPLETED A TRIAL OR
PROBATIONARY PERIOD.  /46/ 

THE CIVIL SERVICE REGULATIONS ARE CONSISTENT WITH THESE STATUTES. 
THESE REGULATIONS ARE PROMULGATED BY THE CIVIL SERVICE COMMISSION AS
AUTHORIZED BY CONGRESS IN 5 U.S.C. 1301, 1302.  /47/  PART 752, THE
SAFEGUARDS FOR EMPLOYEES BUT, AS DID THE STATUTES CITED ABOVE, EXEMPTS
"EMPLOYEES) CURRENTLY SERVING A PROBATIONARY OR TRIAL PERIOD."  /48/
SUCH EMPLOYEES ARE REMITTED TO THE PROCEDURES SPECIFIED IN SUBPART H OF
PART 315, /49/ THE PROCEDURES AT ISSUE HERE.  UNDER 752.202 OF THE
REGULATIONS PERMANENT COMPETITIVE SERVICE EMPLOYEES ARE TO BE RETAINED
IN AN ACTIVE-DUTY STATUS ONLY DURING THE REQUIRED 30 - DAY-NOTICE
PERIOD, AND THE COMMISSION IS GIVEN NO AUTHORITY TO ISSUE ADDITIONAL
STAYS.  /50/  IT CANNOT PREVENT THE DISMISSAL OF AN EMPLOYEE OR ORDER
HIS REINSTATEMENT PRIOR TO HEARING AND DETERMINING HIS APPEAL ON THE
MERITS.  REASONABLY, A PROBATIONARY EMPLOYEE COULD BE ENTITLED TO NO
MORE THAN RETENTION ON ACTIVE DUTY FOR THE PERIOD PRECEDING THE
EFFECTIVE DATE OF HIS DISCHARGE. 

CONGRESS HAS ALSO PROVIDED A BROAD REMEDY FOR CASES OF IMPROPER
SUSPENSION OR DISMISSAL.  THE BACK PAY ACT OF 1948 /51/  SUPPLEMENTED
THE BASIC LLOYD-LAFOLLETTE ACT OF 1912 AND PROVIDED THAT ANY PERSON IN
THE COMPETITIVE CIVIL SERVICE WHO WAS UNJUSTIFIABLY DISCHARGED AND
LATER RESTORED TO HIS POSITION WAS ENTITLED TO FULL BACKPAY FOR THE
TIME HE WAS OUT OF WORK.  THE BENEFITS OF THIS ACT WERE EXTENDED TO
ADDITIONAL EMPLOYEES, INCLUDING PROBATIONARY EMPLOYEES IN 1966.  /52/
RESPONDENT WAS ELIGIBLE FOR FULL COMPENSATION FOR ANY PERIOD OF
IMPROPER DISCHARGE UNDER THIS SECTION. 

AS WE HAVE NOTED, RESPONDENT'S ONLY SUBSTANTIVE CLAIM, EITHER BEFORE
THE DISTRICT COURT OR IN HER ADMINISTRATIVE APPEAL, WAS THAT
PETITIONERS HAD VIOLATED THE REGULATIONS PROMULGATED BY THE CIVIL
SERVICE COMMISSION.  THOSE SAME REGULATIONS PROVIDED FOR AN APPEAL TO
THE AGENCY WHICH PROMULGATED THE REGULATIONS AND FURTHER PROVIDED THAT
UNTIL THAT APPEAL HAD BEEN HEARD ON THE MERITS, THE EMPLOYER'S
DISCHARGE OF THE EMPLOYEE WAS TO REMAIN IN EFFECT.  RESPONDENT,
HOWEVER, SOUGHT JUDICIAL INTERVENTION BEFORE FULLY UTILIZING THE
ADMINISTRATIVE SCHEME. 

THE DISTRICT COURT, EXERCISING ITS EQUITABLE POWERS, IS BOUND TO
GIVE SERIOUS WEIGHT TO THE OBVIOUSLY DISRUPTIVE EFFECT WHICH THE GRANT
OF THE TEMPORARY RELIEF AWARDED HERE WAS LIKELY TO HAVE ON THE
ADMINISTRATIVE PROCESS.  WHEN WE COUPLE WITH THIS CONSIDERATION THE
HISTORICAL DENIAL OF ALL EQUITABLE RELIEF BY THE FEDERAL COURTS IN
CASES SUCH AS WHITE V. BERRY, 171 U.S. 366 (1898), THE WELL-ESTABLISHED
RULE THAT THE GOVERNMENT HAS TRADITIONALLY BEEN GRANTED THE WIDEST
LATITUTDE IN THE "DISPATCH OF ITS OWN INTERNAL AFFAIRS,"  FETERIA
WORKERS V. MCELROY, 367 U.S. 886, 896 (1961), AND THE TRADITIONAL
UNWILLINGNESS OF COURTS OF EQUITY TO ENFORCE CONTRACTS FOR PERSONAL
SERVICE EITHER AT THE BEHEST OF THE EMPLOYER OR OF THE EMPLOYEE, 5A A.
CORBIN, CONTRACTS 1204 (1964), WE THINK THAT THE COURT OF APPEALS WAS
QUITE WRONG IN ROUTINELY APPLYING TO THIS CASE THE TRADITIONAL
STANDARDS GOVERNING MORE ORTHODOX "STAYS."  SEE VIRGINIA PETROLEUM
JOBBERS ASSN. V. FPC, 104 U.S. APP. D.C. 106, 259 F.2D 921 (1958). 
/53/  ALTHOUGH WE DO NOT HOLD THAT CONGRESS HAS WHOLLY FORECLOSED THE
GRANTING OF PRELIMINARY INJUNCTIVE RELIEF IN SUCH CASES, WE DO BELIEVE
THAT RESPONDENT AT THE VERY LEAST MUST MAKE A SHOWING OF IRREPARABLE
INJURY SUFFICIENT IN KIND AND DEGREE TO OVERRIDE THESE FACTORS CUTTING
AGAINST THE GENERAL AVAILABILITY OF PRELIMINARY INJUNCTIONS IN
GOVERNMENT PERSONNEL CASES.  WE NOW TURN TO THE SHOWING MADE TO THE
DISTRICT COURT ON THAT ISSUE, AND TO THE COURT OF APPEALS' TREATMENT OF
IT.             IV 

THE COURT OF APPEALS SAID IN ITS OPINION: 

"WITHOUT PASSING ON THE MERITS OF MRS. MURRAY'S CONTENTION THAT SHE
WILL SUFFER IRREPARABLE HARM IF THE SOUGHT-FOR-RELIEF IS NOT GRANTED (A
TASK FOR THE DISTRICT COURT HERE), WE NOTE THAT THERE WAS A
DETERMINATION THAT SUCH A LOSS OF EMPLOYMENT COULD BE 'IRREPARABLE
HARM' IN REEBER V. ROSSELL (1950), A CASE QUITE SIMILAR TO THAT AT
BAR.  WE AGREE WITH THE REEBER COURT THAT SUCH A LOSS OF EMPLOYMENT CAN
AMOUNT TO IRREPARABLE HARM, AND THAT INJUNCTIVE RELIEF MAY BE A PROPER
REMEDY PENDING THE FINAL ADMINISTRATIVE DETERMINATION OF THE VALIDITY
OF THE DISCHARGE BY THE CIVIL SERVICE COMMISSION."  /54/ AT ANOTHER
POINT IN ITS OPINION, THE COURT OF APPEALS SAID: 

     "AS THE DISTRICT COURT HERE FELT THAT THE HEARING ON THE
MOTION

  FOR THE PRELIMINARY INJUNCTION COULD NOT BE COMPLETED UNTIL MR.

SANDERS WAS PRODUCED TO TESTIFY, IT WAS PROPER FOR HIM TO

 CONTINUE THE STAY, IN ORDER TO PRESERVE THE STATUS QUO PENDING

  THE COMPLETION OF THE HEARING."  /55/

THE COURT IN ITS SUPPLEMENTAL OPINION FILED AFTER THE GOVERNMENT'S
PETITION FOR REHEARING FURTHER EXPANDED ITS VIEW OF THIS ASPECT OF THE
CASE: 

"THE COURT'S OPINION DOES NOT HOLD, AND THE TRIAL JUDGE HAS NOT YET
HELD, THAT INTERIM RELIEF IS PROPER IN MRS. MURRAY'S CASE, BUT WE DO
HOLD THAT THE TRIAL JUDGE MAY CONSIDER GRANTING SUCH RELIEF, AS THIS IS
INHERENT IN HIS HISTORICAL EQUITABLE ROLE."  /56/ 

IN FORM THE ORDER ENTERED BY THE DISTRICT COURT NOW BEFORE US IS A
CONTINUATION OF THE TEMPORARY RESTRAINING ORDER ORIGINALLY ISSUED BY
THAT COURT.  /57/  IT IS CLEAR FROM THE COURT OF APPEALS' OPINION THAT
THAT COURT SO CONSTRUED IT.  BUT SINCE THE ORDER FINALLY SETTLED UPON
BY THE DISTRICT COURT WAS IN NO WAY LIMITED IN TIME, THE PROVISIONS OF
FED. RULE CIV. PROC. 65 COME INTO PLAY.  THAT RULE STATES, IN PART: 

"(B) A TEMPORARY RESTRAINING ORDER MAY BE GRANTED WITHOUT WRITTEN OR
ORAL NOTICE TO THE ADVERSE PARTY OR HIS ATTORNEY ONLY IF (1) IT CLEARLY
APPEARS FROM SPECIFIC FACTS SHOWN BY AFFIDAVIT OR BY THE VERIFIED
COMPLAINT THAT IMMEDIATE AND IRREPARABLE INJURY, LOSS, OR DAMAGE WILL
RESULT TO THE APPLICANT BEFORE THE ADVERSE PARTY OF HIS ATTORNEY CAN BE
HEARD IN OPPOSITION . . . EVERY TEMPORARY RESTRAINING ORDER GRANTED
WITHOUT NOTICE . . . SHALL DEFINE THE INJURY AND STATE WHY IT IS
IRREPARABLE AND WHY THE ORDER WAS GRANTED WITHOUT NOTICE; AND SHALL
EXPIRE BY ITS TERMS WITHIN SUCH TIME AFTER ENTRY, NOT TO EXCEED 10
DAYS, AS THE COURT FIXES, UNLESS WITHIN THE TIME SO FIXED THE ORDER,
FOR GOOD CAUSE SHOWN, IS EXTENDED FOR A LIKE PERIOD OR UNLESS THE PARTY
AGAINST WHOM THE ORDER IS DIRECTED CONSENTS THAT IT MAY BE EXTENDED FOR
A LONGER PERIOD." 

THE COURT OF APPEALS WHOSE JUDGMENT WE ARE REVIEWING HAS HELD THAT A
TEMPORARY RESTRAINING ORDER CONTINUED BEYOND THE TIME PERMISSIBLE UNDER
RULE 65 MUST BE TREATED AS A PRELIMINARY INJUNCTION, AND MUST CONFORM
TO THE STANDARDS APPLICABLE TO PRELIMINARY INJUNCTIONS.  NATIONAL
MEDIATION BOARD V. AIRLINE PILOTS ASSN., 116 U.S. APP. D.C. 300, 323
F.2D 305 (1963).  WE BELIEVE THAT THIS ANALYSIS IS CORRECT, AT LEAST IN
THE TYPE OF SITUATION PRESENTED HERE, AND COMPORTS WITH GENERAL
PRINCIPLES IMPOSING STRICT LIMITATIONS ON THE SCOPE OF TEMPORARY
RESTRAINING ORDERS.  /58/  A DISTRICT COURT, IF IT WERE ABLE TO SHIELD
ITS ORDERS FROM APPELLATE REVIEW MERELY BY DESIGNATING THEM AS
TEMPORARY RESTRAINING ORDERS, RATHER THAN AS PRELIMINARY INJUNCTIONS,
WOULD HAVE VIRTUALLY UNLIMITED AUTHORITY OVER THE PARTIES IN AN
INJUNCTIVE PROCEEDING.  IN THIS CASE, WHERE AN ADVERSARY HEARING HAS
BEEN HELD, AND THE COURT'S BASIS FOR ISSUING THE ORDER STRONGLY
CHALLENGED, CLASSIFICATION OF THE POTENTIALLY UNLIMITED ORDER AS A
TEMPORARY RESTRAINING ORDER SEEMS PARTICULARLY UNJUSTIFIED.  THEREFORE
WE VIEW THE ORDER AT ISSUE HERE AS A PRELIMINARY INJUNCTION. 

WE BELIEVE THAT THE COURT OF APPEALS WAS QUITE WRONG IN SUGGESTING
THAT AT THIS STAGE OF THE PROCEEDING THE DISTRICT COURT NEED NOT HAVE
CONCLUDED THAT THERE WAS ACTUALLY IRREPARABLE INJURY.  /59/ THIS COURT
HAS STATED THAT "(THE BASIS OF INJUNCTIVE RELIEF IN THE FEDERAL COURTS
HAS ALWAYS BEEN IRREPARABLE HARM AND INADEQUACY OF LEGAL REMEDIES,"
BEACON THEATRES, INC. V. WESTOVER, 359 U.S. 500, 506 - 507 (1959), AND
THE COURT OF APPEALS ITSELF IN VIRGINIA PETROLEUM JOBBERS ASSN. V. FPC,
104 U.S. APP. D.C. 106, 259 F.2D 921 (1958), HAS RECOGNIZED AS MUCH. 
YET THE RECORD BEFORE US INDICATES THAT NO WITNESSES WERE HEARD ON THE
ISSUE OF IRREPARABLE INJURY, THAT RESPONDENT'S COMPLAINT WAS NOT
VERIFIED, AND THAT THE AFFIDAVIT SHE SUBMITTED TO THE DISTRICT COURT
DID NOT TOUCH IN ANY WAY UPON CONSIDERATIONS RELEVANT TO IRREPARABLE
INJURY.  /60/  WE ARE THEREFORE SOMEWHAT PUZZLED ABOUT THE BASIS FOR
THE DISTRICT COURT'S CONCLUSION THAT RESPONDENT "MAY SUFFER IMMEDIATE
AND IRREPARABLE INJURY."  THE GOVERNMENT HAS NOT SPECIFICALLY URGED
THIS PROCEDURAL ISSUE HERE, HOWEVER, AND THE COURT OF APPEALS IN ITS
OPINION DISCUSSED THE ELEMENTS UPON WHICH IT HELD THAT THE DISTRICT
COURT MIGHT BASE A CONCLUSION OF IRREPARABLE INJURY.  RESPONDENT'S
UNVERIFIED COMPLAINT ALLEGED THAT SHE MIGHT BE DEPRIVED OF HER INCOME
FOR AN INDEFINITE PERIOD OF TIME, THAT SPURIOUS AND UNREBUTTED CHARGES
AGAINST HER MIGHT REMAIN ON THE RECORD, AND THAT SHE WOULD SUFFER THE
EMBARRASSMENT OF BEING WRONGFULLY DISCHARGED IN THE PRESENCE OF HER
COWORKERS.  /61/  THE COURT OF APPEALS INTIMATED THAT EITHER LOSS OF
EARNINGS OR DAMAGE TO REPUTATION MIGHT AFFORD A BASIS FOR A FINDING OF
IRREPARABLE INJURY AND PROVIDE A BASIS FOR TEMPORARY INJUNCTIVE
RELIEF.  /62/  WE DISAGREE.  /63/ 

EVEN UNDER THE TRADITIONAL STANDARDS OF VIRGINIA PETROLEUM JOBBERS,
SUPRA, IT SEEMS CLEAR THAT THE TEMPORARY LOSS OF INCOME, ULTIMATELY TO
BE RECOVERED, DOES NOT USUALLY CONSTITUTE IRREPARABLE INJURY.  /64/  IN
THAT CASE THE COURT STATED: 

"THE KEY WORD IN THIS CONSIDERATION IS IRREPARABLE.  MERE INJURIES,
HOWEVER SUBSTANTIAL, IN TERMS OF MONEY, TIME AND ENERGY NECESSARILY
EXPENDED IN THE ABSENCE OF A STAY, ARE NOT ENOUGH.  THE POSSIBILITY
THAT ADEQUATE COMPENSATORY OR OTHER CORRECTIVE RELIEF WILL BE AVAILABLE
AT A LATER DATE, IN THE ORDINARY COURSE OF LITIGATION, WEIGHS HEAVILY
AGAINST A CLAIM OF IRREPARABLE HARM."  /65/ THIS PREMISE IS FORTIFIED
BY THE BACK PAY ACT DISCUSSED ABOVE.  /66/  THIS ACT NOT ONLY AFFORDS
MONETARY RELIEF WHICH WILL PREVENT THE LOSS OF EARNINGS ON A PERIODIC
BASIS FROM BEING "IRREPARABLE INJURY" IN THIS TYPE OF CASE, BUT ITS
LEGISLATIVE HISTORY SUGGESTS THAT CONGRESS CONTEMPLATED THAT IT WOULD
BE THE USUAL, IF NOT THE EXCLUSIVE, REMEDY FOR WRONGFUL DISCHARGE.  THE
MANAGER OF THE BILL ON THE FLOOR OF THE SENATE, SENATOR LANGER,
COMMENTED ON THE BILL AT THE TIME OF ITS PASSAGE: 

"(IT) . . . PROVIDES THAT AN AGENCY OR DEPARTMENT OF THE GOVERNMENT
MAY REMOVE ANY EMPLOYEE AT ANY TIME, BUT THAT THE EMPLOYEE SHALL THEN
HAVE A RIGHT OF APPEAL.  WHEN HE IS REMOVED, HE IS OF COURSE OFF THE
PAY ROLL.  IF HE WINS THE APPEAL, IT IS PROVIDED THAT HE SHALL BE PAID
FOR THE TIME DURING WHICH HE WAS SUSPENDED."  /67/ 

RESPONDENT'S COMPLAINT ALSO ALLEGES, AS A BASIS FOR RELIEF, THE
HUMILIATION AND DAMAGE TO HER REPUTATION WHICH MAY ENSUE.  AS A MATTER
OF FIRST IMPRESSION IT WOULD SEEM THAT NO SIGNIFICANT LOSS OF
REPUTATION WOULD BE INFLICTED BY PROCEDURAL IRREGULARITIES IN
EFFECTUATING RESPONDENT'S DISCHARGE, AND THAT WHATEVER DAMAGE MIGHT
OCCUR WOULD BE FULLY CORRECTED BY AN ADMINISTRATIVE DETERMINATION
REQUIRING THE AGENCY TO CONFORM TO THE APPLICABLE REGULATIONS. 
RESPONDENT'S CLAIM HERE IS NOT THAT SHE COULD NOT AS A MATTER OF
STATUTORY OR ADMINISTRATIVE RIGHT BE DISCHARGED, BUT ONLY THAT SHE WAS
ENTITLED TO ADDITIONAL PROCEDURAL SAFEGUARDS IN EFFECTUATING THE
DISCHARGE. 

ASSUMING FOR THE PURPOSE OF DISCUSSION THAT RESPONDENT HAD MADE A
SATISFACTORY SHOWING OF LOSS OF INCOME AND HAD SUPPORTED THE CLAIM THAT
HER REPUTATION WOULD BE DAMAGED AS A RESULT OF THE CHALLENGED AGENCY
ACTION, WE THINK THE SHOWING FALLS FAR SHORT OF THE TYPE OF IRREPARABLE
INJURY WHICH IS A NECESSARY PREDICATE TO THE ISSUANCE OF A TEMPORARY
INJUNCTION IN THIS TYPE OF CASE.  /68/ WE THEREFORE REVERSE THE
DECISION OF THE COURT OF APPEALS WHICH APPROVED THE ACTION OF THE
DISTRICT COURT. 

IT IS SO ORDERED. 

/1/  MURRAY V. KUNZIG, 149 U.S. APP. D.C. 256, 462 F.2D 871 (1972). 
FOR A DISCUSSION OF THE COURT OF APPEALS' JURISDICTION, AND THE
JURISDICTION OF THIS COURT, SEE INFRA, AT 86 - 88. 

/2/  CFR 315.801. 

/3/  COMPARE 5 CFR 315.801 - 315.807 WITH 5 CFR 752.101 ET SEQ. 

/4/  5 CFR 315.804. 

/5/  5 CFR 315.805. 

/6/  SECTION 315.805 READS IN FULL:  "315.805 TERMINATION OF
PROBATIONERS FOR CONDITIONS ARISING BEFORE APPOINTMENT. 

"WHEN AN AGENCY PROPOSES TO TERMINATE AN EMPLOYEE SERVING A
PROBATIONARY OR TRIAL PERIOD FOR REASONS BASED IN WHOLE OR IN PART ON
CONDITIONS ARISING BEFORE HIS APPOINTMENT, THE EMPLOYEE IS ENTITLED TO
THE FOLLOWING: 

"(A) NOTICE OF PROPOSED ADVERSE ACTION.  THE EMPLOYEE IS ENTITLED TO
AN ADVANCE WRITTEN NOTICE STATING THE REASONS, SPECIFICALLY AND IN
DETAIL, FOR THE PROPOSED ACTION. 

"(B) EMPLOYEE'S ANSWER.  THE EMPLOYEE IS ENTITLED TO A REASONABLE
TIME FOR FILING A WRITTEN ANSWER TO THE NOTICE OF PROPOSED ADVERSE
ACTION AND FOR FURNISHING AFFIDAVITS IN SUPPORT OF HIS ANSWER.  IF THE
EMPLOYEE ANSWERS, THE AGENCY SHALL CONSIDER THE ANSWER IN REACHING ITS
DECISION. 

"(C) NOTICE OF ADVERSE DECISION.  THE EMPLOYEE IS ENTITLED TO BE
NOTIFIED OF THE AGENCY'S DECISION AT THE EARLIEST PRACTICABLE DATE. 
THE AGENCY SHALL DELIVER THE DECISION TO THE EMPLOYEE AT OR BEFORE THE
TIME THE ACTION WILL BE MADE EFFECTIVE.  THE NOTICE SHALL BE IN
WRITING, INFORM THE EMPLOYEE OF THE REASONS FOR THE ACTION, INFORM THE
EMPLOYEE OF HIS RIGHT OF APPEAL TO THE APPROPRIATE OFFICE OF THE
COMMISSION, AND INFORM HIM OF THE TIME LIMIT WITHIN WHICH THE APPEAL
MUST BE SUBMITTED AS PROVIDED IN 315.806(D)." 

/7/  SECTION 315.806(C) READS:  "A PROBATIONER WHOSE TERMINATION IS
SUBJECT TO 315.805 MAY APPEAL ON THE GROUND THAT HIS TERMINATION WAS
NOT EFFECTED IN ACCORDANCE WITH THE PROCEDURAL REQUIREMENTS OF THAT

/8/  THE ORDER OF THE DISTRICT COURT STATED IN FULL:  "IT APPEARING
TO THE COURT FROM THE AFFIDAVITS AND ACCOMPANYING EXHIBITS THAT A
TEMPORARY RESTRAINING ORDER, PENDING THE APPEARANCE BEFORE THIS COURT
OF MR. W. H. SANDERS, ACTING COMMISSIONER, PUBLIC BUILDINGS SERVICE,
SHOULD ISSUE BECAUSE, UNLESS DEFENDANTS ARE RESTRAINED FROM TERMINATING
PLAINTIFF'S EMPLOYMENT, PLAINTIFF MAY SUFFER IMMEDIATE AND IRREPARABLE
INJURY, LOSS AND DAMAGE BEFORE THE CIVIL SERVICE COMMISSION CAN
CONSIDER PLAINTIFF'S CLAIM, 

"NOW, THEREFORE, IT IS ORDERED, THAT THE TEMPORARY RESTRAINING ORDER
ISSUED BY THIS COURT AT TWELVE O'CLOCK P. M., MAY 28, 1971, IS
CONTINUED UNTIL THE APPEARANCE OF THE AFORESAID W. H. SANDERS. 

"IT IS FURTHER ORDERED THAT A COPY OF THIS ORDER BE SERVED BY THE
UNITED STATES MARSHAL ON DEFENDANTS FORTH WITH." 

/9/  149 U.S. APP. D.C., AT 262 N. 21, 462 F.2D, AT 877 N.21. 

/10/  ID., AT 263 - 264, 462 F.2D AT 878 - 879. 

/11/  29 U.S.C. 160(J), (L). 

/12/  15 U.S.C. 53(A). 

/13/  16 U.S.C. 825MA). 

/14/  15 U.S.C. 78UE); 15 U.S.C. 77TB). 

/15/  RESPONDENT DOES SUGGEST THAT 5 U.S.C. 705 MAY CONFER AUTHORITY
TO GRANT RELIEF IN THIS CASE.  THAT SECTION READS: 

"WHEN AN AGENCY FINDS THAT JUSTICE SO REQUIRES, IT MAY POSTPONE THE
EFFECTIVE DATE OF ACTION TAKEN BY IT, PENDING JUDICIAL REVIEW.  ON SUCH
CONDITIONS AS MAY BE REQUIRED AND TO THE EXTENT NECESSARY TO PREVENT
IRREPARABLE INJURY, THE REVIEWING COURT, INCLUDING THE COURT TO WHICH A
CASE MAY BE TAKEN ON APPEAL FROM OR ON APPLICATION FOR CERTIORARI OR
OTHER WRIT TO A REVIEWING COURT, MAY ISSUE ALL NECESSARY AND
APPROPRIATE PROCESS TO POSTPONE THE EFFECTIVE DATE OF AN AGENCY ACTION
OR TO PRESERVE STATUS OR RIGHTS PENDING CONCLUSION OF THE REVIEW
PROCEEDINGS."  THE RELEVANT LEGISLATIVE HISTORY OF THAT SECTION,
HOWEVER, INDICATES THAT IT WAS PRIMARILY INTENDED TO REFLECT EXISTING
LAW UNDER THE SCRIPPS-HOWARD DOCTRINE, DISCUSSED INFRA, AND NOT TO
FASHION NEW RULES OF INTERVENTION FOR DISTRICT COURTS.  SEE S. REP. NO.
752, 79TH CONG., 1ST SESS., 27, 44 (1945).  THUS RESPONDENT'S VARIOUS
CONTENTIONS MAY BE GROUPED UNDER HER PRIMARY THEORY DISCUSSED IN THE
TEXT. 

/16/  149 U.S. APP. D.C., AT 265, 462 F.2D AT 880 (FOOTNOTES

OMITTED). 

/17/  THE COURT THERE EXPRESSED THE TRADITIONAL JUDICIAL DEFERENCE
TO ADMINISTRATIVE PROCESSES IN THE FOLLOWING TERMS: 

"THE APPOINTMENT TO AN OFFICIAL POSITION IN THE GOVERNMENT, EVEN IF
IT BE SIMPLY A CLERICAL POSITION, IS NOT A MERE MINISTERIAL ACT, BUT
ONE INVOLVING THE EXERCISE OF JUDGMENT.  THE APPOINTING POWER MUST
DETERMINE THE FITNESS OF THE APPLICANT; WHETHER OR NOT HE IS THE PROPER
ONE TO DISCHARGE THE DUTIES OF THE POSITION.  THEREFORE IT IS ONE OF
THOSE ACTS OVER WHICH THE COURTS HAVE NO GENERAL SUPERVISING POWER.  R
"IN THE ABSENCE OF SPECIFIC PROVISION TO THE CONTRARY, THE POWER OF
REMOVAL FROM OFFICE IS INCIDENT TO THE POWER OF APPOINTMENT.  'IT
CANNOT FOR A MOMENT BE ADMITTED THAT IT WAS THE INTENTION OF THE
CONSTITUTION THAT THOSE OFFICES WHICH ARE DENOMINATED INFERIOR OFFICES
SHOULD BE HELD DURING LIFE.  AND IF REMOVABLE AT PLEASURE, BY WHOM IS
SUCH REMOVAL TO BE MADE?  IN THE ABSENCE OF ALL CONSTITUTIONAL
PROVISION OR STATUTORY REGULATION IT WOULD SEEM TO BE A SOUND AND
NECESSARY RULE TO CONSIDER THE POWER OF REMOVAL AS INCIDENT TO THE
POWER OF APPOINTMENT.'  IN RE HENNEN, 13 PET. 230, 259; PARSONS V.
UNITED STATES, 167 U.S.324.  UNLESS, THEREFORE, THERE BE SOME SPECIFIC
PROVISION TO THE CONTRARY, THE ACTION OF THE SECRETARY OF THE INTERIOR
IN REMOVING THE PETITIONER FROM OFFICE ON ACCOUNT OF INEFFICIENCY IS
BEYOND REVIEW IN THE COURTS EITHER BY MANDAMUS TO REINSTATE HIM OR BY
COMPELLING PAYMENT OF SALARY AS THOUGH HE HAD NOT BEEN REMOVED."  177
U.S., AT 293 - 294.     /18/  THE PLAINTIFF IN WHITE PROTESTED THAT HE
WAS BEING DISCHARGED BECAUSE OF HIS POLITICAL AFFILIATION, A BASIS FOR
DISCHARGE SPECIFICALLY PROHIBITED UNDER THE CIVIL SERVICE RULES.  171
U.S., AT 367 - 368.  SUCH A CONTENTION OBVIOUSLY WENT TO THE HEART OF
THE CIVIL SERVICE LEGISLATION, SINCE A PRIMARY PURPOSE OF THAT SYSTEM
WAS TO REMOVE LARGE SECTORS OF GOVERNMENT EMPLOYMENT FROM THE POLITICAL
"SPOILS SYSTEM" WHICH HAD PREVIOUSLY PLAYED A LARGE PART IN THE
SELECTION AND DISCHARGE OF GOVERNMENT EMPLOYEES.  SEE GENERALLY H.
KAPLAN, THE LAW OF CIVIL SERVICE 1 - 22 (1958). 

/19/  171 U.S., AT 374 - 375. 

/20/  THE COURT QUOTED FROM MORGAN V. NUNN, 84 F. 551, AND NOTED
THAT "(SIMILAR DECISIONS HAVE BEEN MADE IN OTHER CIRCUIT COURTS OF THE
UNITED STATES."  171 U.S., AT 377 - 378. 

/21/  ID., AT 378. 

/22/  IN SERVICE AN EMPLOYEE DISCHARGED UNDER THE PROVISIONS OF THE
MCCARRAN RIDER, 65 STAT. 581, CONTENDED THAT THE SECRETARY OF STATE HAD
NOT FOLLOWED DEPARTMENTAL REGULATIONS IN EFFECTING HIS DISMISSAL.  THIS
COURT AGREED WITH PLAINTIFF'S POSITION AND DECIDED THAT HIS "DISMISSAL
CANNOT STAND."  354 U.S., AT 388.  HOWEVER, THE EMPLOYEE IN THAT CASE
HAD MADE A FULL EFFORT TO SECURE ADMINISTRATIVE REVIEW OF HIS DISCHARGE
PRIOR TO FILING SUIT IN THE DISTRICT COURT.  THESE EFFORTS, AS THE
COURT NOTED, ID., AT 370, HAD "PROVED UNSUCCESSFUL."  IN THE PRESENT
CASE RESPONDENT HAS PETITIONED THE COURT BEFORE ASCERTAINING WHETHER
ADMINISTRATIVE RELIEF WILL BE GRANTED. 

/23/  SEE N. 22, SUPRA. 

/24/  THE COURT POINTED OUT THAT "EVEN THOUGH THE RADIO ACT OF 1927
CONTAINED NO PROVISIONS DEALING WITH THE AUTHORITY FOR THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA TO STAY ORDERS OF THE COMMISSION
ON APPEAL, THE COURT HAD BEEN ISSUING STAYS AS A MATTER OF COURSE
WHEREVER THEY WERE FOUND TO BE APPROPRIATE, WITHOUT OBJECTION BY THE
COMMISSION."  SCRIPPS-HOWARD RADIO V. FCC, 316 U.S. 4, 13 (1942). 

/25/  THE PRECISE QUESTION CERTIFIED WAS: 

"'WHERE, PURSUANT TO THE PROVISIONS OF SECTION 402(B) OF THE
COMMUNICATIONS ACT OF 1934, AN APPEAL HAS BEEN TAKEN, TO THE UNITED
STATES COURT OF APPEALS, FROM AN ORDER OF THE FEDERAL COMMUNICATIONS
COMMISSION, DOES THE COURT, IN ORDER TO PRESERVE THE STATUS QUO PENDING
APPEAL, HAVE POWER TO STAY THE EXECUTION OF THE COMMISSION'S ORDER FROM
WHICH THE APPEAL WAS TAKEN, PENDING THE DETERMINATION OF THE APPEAL?'" 
ID., AT 6. 

THE WORDING OF THE QUESTION CERTIFIED MAKES CLEAR THAT THE COURT WAS
FACED ONLY WITH THE SITUATION IN WHICH AN APPEAL HAS BEEN FILED SEEKING
REVIEW OF COMPLETED AGENCY ACTION. 

/26/  ID., AT 9 - 10.  IN THE COURT'S OPINION A FOOTNOTE, HEREIN
DESIGNATED WITH AN ASTERISK, REFERRED TO THE ALL WRITS ACT, 28 U.S.C.
1651(A), WHICH READS: 

"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 RELIANCE OF THE COURT ON THIS PROVISION WAS NOTED BY THE COURT
OF APPEALS IN ITS OPINION IN THIS CASE.  149 U.S. APP. D.C., AT 261 N.
17, 462 F.2D, AT 876 N. 17. 

/27/  SEE N. 25, SUPRA. 

/28/  FOR EXAMPLE, THE TWO CASES CITED BY THE COURT IN SCRIPPS
HOWARD INVOLVED SITUATION IN WHICH A COURT ACCEPTED APPEAL JURISDICTION
AND, IN CONNECTION WITH THAT ACCEPTANCE, ISSUED A STAY OF THE DECISION
BELOW.  SEE IN RE CLAASEN, 140 U.S. 200 (1891) (WRIT OF ERROR TO THIS
COURT); IN RE MCKENZIE, 180 U.S. 536 (1901) (APPEAL TAKEN TO THE
CIRCUIT COURT OF APPEALS).  THE ALL WRITS ACT, N. 26, SUPRA, PROVIDED
THE AUTHORITY IN EACH CASE. 

/29/  SEE N. 26, SUPRA. 

/30/  SEE N. 22, SUPRA, AS NOTED ABOVE, THE EMPLOYEE IN SERVICE
SOUGHT TO HAVE THE SECRETARY'S ACTION DECLARED INVALID WITHIN THE
ADMINISTRATIVE SYSTEM.  HE SOUGHT JUDICIAL RELIEF ONLY AFTER IT BECAME
EVIDENT THAT NO ADMINISTRATIVE RELIEF WOULD BE FORTHCOMING. 

/31/  THE BACK PAY ACT IS FOUND AT 5 U.S.C. 5596.  THE PERTINENT
PROVISIONS READ: 

"(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE
DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY
UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR
UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR
REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF
THE EMPLOYEE-- 

"(1) IS ENTITLED,ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT
EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS
APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT
PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS
EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD . . . " 

/32/  316 U.S., AT 14. 

/33/  A PRELIMINARY QUESTION OF IMPORTANCE IN DEAN FOODS WAS WHETHER
THE COMMISSION, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORIZATION,
COULD PETITION THE COURT OF APPEALS FOR PRELIMINARY RELIEF.  THIS COURT
SAID:  "(THE COMMISSION IS A GOVERNMENTAL AGENCY TO WHICH CONGRESS HAS
ENTRUSTED, INTER ALIA, THE ENFORCEMENT OF THE CLAYTON ACT, GRANTING IT
THE POWER TO ORDER DIVESTITURE IN APPROPRIATE CASES.  AT THE SAME TIME,
CONGRESS HAS GIVEN THE COURTS OF APPEALS JURISDICTION TO REVIEW FINAL
COMMISSION ACTION.  IT WOULD STULTIFY CONGRESSIONAL PURPOSE TO SAY THAT
THE COMMISSION DID NOT HAVE THE INCIDENTAL POWER TO ASK THE COURTS OF
APPEALS TO EXERCISE THEIR AUTHORITY DERIVED FROM THE ALL WRITS ACT." 
384 U.S., AT 606.  A CONTRARY DECISION, THE COURT FELT, WOULD HAVE MADE
IT VIRTUALLY IMPOSSIBLE FOR THE COMMISSION ITSELF TO UNDERTAKE REVIEW
OF THE PROPOSED MERGER.  THE CONGRESSIONAL GRANT OF AUTHORITY TO THE
FTC IN CLAYTON ACT CASES THUS COULD HAVE BEEN FRUSTRATED. 

/34/  ID., AT 599 - 600.  THE COMPLAINT CHARGED THAT ONE OF THE
PARTIES TO THE MERGER "'AS AN ENTITY WILL NO LONGER EXIST,'" ID., AT
599, AND THAT "CONSUMMATION OF THE AGREEMENT WOULD 'PREVENT THE
COMMISSION FROM DEVISING, OR RENDER IT EXTREMELY DIFFICULT FOR THE
COMMISSION TO DEVISE, ANY EFFECTIVE REMEDY AFTER ITS DECISION ON THE
MERITS.'"  ID., AT 600.  THE COMMISSION THEREFORE WAS AFFIRMATIVELY
ASSERTING THAT THE ADMINISTRATIVE REMEDY WHICH IT WAS AUTHORIZED TO
FASHION WAS INADEQUATE. 

/35/  ID., AT 601. 

/36/  IN DEAN FOODS THE COMMISSION CONFESSED ITS INABILITY TO
FASHION EFFECTIVE ADMINISTRATIVE RELIEF.  BUT PETITIONERS HERE ADMIT NO
SUCH THING.  RATHER THEY STRONGLY ASSERT THAT THE BACK PAY ACT, N. 31,
SUPRA, PROVIDES A COMPLETE REMEDY FOR ANY PROCEDURAL IRREGULARITIES
WHICH MAY HAVE OCCURRED IN THIS CASE. 

/37/  316 U.S., AT 11 - 13. 

/38/  THE COURT COMPARED THE PROVISIONS OF 402(A) AND 402(B) OF THE
COMMUNICATIONS ACT OF 1934, 48 STAT. 1064.  THE FORMER SECTION
SPECIFICALLY AUTHORIZED TEMPORARY STAYS, THROUGH APPLICATION OF THE
URGENT DEFICIENCIES ACT OF OC. 22, 1913, 38 STAT. 208, OF ORDERS OF THE
FEDERAL COMMUNICATIONS COMMISSION WHICH WERE UNDER REVIEW--WITH CERTAIN
EXCEPTIONS.  THOSE EXCEPTIONS, WHICH INCLUDED THE ORDER THERE AT ISSUE,
WERE TREATED UNDER 402(B) WHICH MADE NO SPECIFIC PROVISION FOR SUCH
STAYS.  THE COURT THUS WAS REQUIRED TO CONSIDER WHETHER CONGRESS
DELIBERATELY SOUGHT TO DEPRIVE COURTS OF A POWER IN THOSE CASES NOT
GOVERNED BY THE URGENT DEFICIENCIES ACT WHICH HAD BEEN EXPRESSLY
AUTHORIZED FOR THOSE CASES WHICH WERE GOVERNED BY THE ACT. 

/39/  SEE N. 34, SUPRA. 

/40/ ALTHOUGH ACKNOWLEDGING THAT THE LEGISLATIVE HISTORY DID NOT
CLEARLY ESTABLISH "A DESIGN TO EXTINGUISH WHATEVER JUDICIAL POWER MAY
HAVE EXISTED PRIOR TO 1910 TO SUSPEND PROPOSED RATES," THE COURT
CONCLUDED:  "(WE CANNOT SUPPOSE THAT CONGRESS, BY VESTING THE NEW
SUSPENSION POWER IN THE COMMISSION, INTENDED TO GIVE BACKHANDED
APPROVAL TO THE EXERCISE OF A JUDICIAL POWER WHICH HAD BROUGHT THE
WHOLE PROBLEM TO A HEAD."  372 U.S., AT 664. 

/41/  372 U.S., AT 668.  (EMPHASIS IN ORIGINAL.) 

/42/  SEE 5 U.S.C. 7501. 

/43/  22 STAT. 404. 

/44/  SEE 5 U.S.C. 2108(3). 

/45/  5 U.S.C. 7511 - 7512.  SECTION 7511 DEFINES A "PREFERENCE
ELIGIBLE EMPLOYEE" AS "A PERMANENT OR INDEFINITE PREFERENCE ELIGIBLE
WHO HAS COMPLETED A PROBATIONARY OR TRIAL PERIOD AS AN EMPLOYEE OF AN
EXECUTIVE AGENCY OR AS AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE
DISTRICT OF COLUMBIA . . . ," SUBJECT TO CERTAIN EXCEPTIONS.  SECTION
7512 PROVIDES THAT SUCH AN EMPLOYEE MUST RECEIVE WRITTEN NOTICE OF THE
REASONS FOR PROPOSED ADVERSE ACTION, A CHANCE TO REPLY IN WRITING AND
BY AFFIDAVIT, AND NOTICE OF AN ADVERSE DECISION.  A PROBATIONARY
EMPLOYEE, UNDER THE REGULATIONS, HAS MORE LIMITED RIGHTS.  SEE 5 CFR
315.801 ET SEQ. 

/46/  5 U.S.C. 7532(C)(2). 

/47/  TITLE 5 U.S.C. 3301 ET SEQ. GRANTS TO THE PRESIDENT AUTHORITY
TO PROMULGATE RULES AND REGULATIONS GOVERNING THE CIVIL SERVICE.  TITLE
5 U.S.C. 1301 PROVIDES THAT "(THE CIVIL SERVICE COMMISSION SHALL AID
THE PRESIDENT, AS HE MAY REQUEST, IN PREPARING THE RULES HE PRESCRIBES
UNDER THIS TITLE FOR THE ADMINISTRATION OF THE COMPETITIVE SERVICE." 
TITLE 5, 1302, EMPOWERS THE COMMISSION TO PRESCRIBE REGULATIONS,
"SUBJECT TO THE RULES PRESCRIBED BY THE PRESIDENT . . . " 

/48/  5 CFR 752.103(A)(5). 

/49/  5 CFR 315.801 ET SEQ. 

/50/  TITLE 5 CFR 752.202(D) READS IN PART:  "EXCEPT AS PROVIDED IN
PARAGRAPH (E) OF THIS SECTION, AN EMPLOYEE AGAINST WHOM ADVERSE ACTION
IS PROPOSED IS ENTITLED TO BE RETAINED IN AN ACTIVE DUTY STATUS DURING
THE NOTICE PERIOD."  SECTION 752.202(A)(1) PROVIDES THAT "AT LEAST 30
FULL DAYS'  ADVANCE WRITTEN NOTICE" IS REQUIRED. 

/51/  SEE N. 31, SUPRA. 

/52/  80 STAT. 94, 95. 

/53/  THESE CONSIDERATIONS WERE SET FORTH BY THE MAJORITY BELOW AS
FOLLOWS:  "(1) HAS THE PETITIONER MADE A STRONG SHOWING THAT HE IS
LIKELY TO PREVAIL ON THE MERITS OF HIS APPEAL?  (2) HAS THE PETITIONER
SHOWN THAT WITHOUT SUCH RELIEF HE WILL BE IRREPARABLY INJURED?  (3)
WOULD THE ISSUANCE OF A STAY SUBSTANTIALLY HARM OTHER PARTIES
INTERESTED IN THE PROCEEDINGS?  (4) WHERE LIES THE PUBLIC INTEREST?" 
149 U.S. APP. D.C., AT 263, 462 F.2D, AT 878. 

/54/  ID., AT 262, 462 F.2D, AT 877 (EMPHASIS IN ORIGINAL). 

/55/  ID., AT 265, 462 F.2D, AT 880. 

/56/  ID., AT 270, 462 F.2D, AT 885 (EMPHASIS IN ORIGINAL). 

/57/  SEE N. 8, SUPRA. 

/58/  THE COURT OF APPEALS FOR THE SECOND CIRCUIT, IN AN OPINION
CITED BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IN
NATIONAL MEDIATION BOARD V. AIRLINE PILOTS ASSN., 116 U.S. APP. D.C.
300, 323 F.2D 305 (1963), DESCRIBED THESE PRINCIPLES AS FOLLOWS:  IT IS
BECAUSE THE REMEDY IS SO DRASTIC AND MAY HAVE SUCH ADVERSE CONSEQUENCES
THAT THE AUTHORITY TO ISSUE TEMPORARY RESTRAINING ORDERS IS CAREFULLY
HEDGED IN RULE 65(B) BY PROTECTIVE PROVISIONS.  AND THE MOST IMPORTANT
OF THESE PROTECTIVE PROVISIONS IS THE LIMITATION ON THE TIME DURING
WHICH SUCH AN ORDER CAN CONTINUE TO BE EFFECTIVE. 

"IT IS FOR THE SAME REASON, THE POSSIBILITY OF DRASTIC CONSEQUENCES
WHICH CANNOT LATER BE CORRECTED, THAT AN EXCEPTION IS MADE TO THE FINAL
JUDGMENT RULE TO PERMIT REVIEW OF PRELIMINARY INJUNCTIONS.  28 U.S.C.
1292(A)(1).  TO DENY REVIEW OF AN ORDER THAT HAS ALL THE POTENTIAL
DANGER OF A PRELIMINARY INJUNCTION IN TERMS OF DURATION, BECAUSE IT IS
ISSUED WITHOUT A PRELIMINARY ADJUDICATION OF THE BASIC RIGHTS INVOLVED,
WOULD COMPLETELY DEFEAT THE PURPOSE OF THIS PROVISION. 

"WE HOLD, THEREFORE, THAT THE CONTINUATION OF THE TEMPORARY
RESTRAINING ORDER BEYOND THE PERIOD OF STATUTORY AUTHORIZATION, HAVING,
AS IT DOES, THE SAME PRACTICAL EFFECT AS THE ISSUANCE OF A PRELIMINARY
INJUNCTION, IS APPEALABLE WITHIN THE MEANING AND INTENT OF 28 U.S.C.
1292(A)(1)."  (CITATIONS OMITTED; EMPHASIS IN ORIGINAL.)  PAN AMERICAN
WORLD AIRWAYS V. FLIGHT ENGINEERS' ASSN., 306 F.2D 840, 843 (1962). 

OUR BROTHER MARSHALL, IN HIS DISSENTING OPINION, NEVERTHELESS
SUGGESTS THAT A DISTRICT COURT CAN TOTALLY OR PARTIALLY IMPEDE REVIEW
OF AN INDEFINITE INJUNCTIVE ORDER BY FAILING TO MAKE ANY FINDINGS OF
FACT OR CONCLUSIONS OF LAW.  IT WOULD SEEM TO BE A CONSEQUENCE OF THIS
REASONING THAT AN ORDER WHICH NEGLECTS TO COMPLY WITH ONE RULE MAY BE
SAVED FROM THE NORMAL APPELLATE REVIEW BY ITS FAILURE TO COMPLY WITH
STILL ANOTHER RULE.  WE DO NOT FIND THIS LOGIC CONVINCING.  ADMITTEDLY,
THE DISTRICT COURT DID NOT COMPLY WITH FED. RULE CIV. PROC. 52(A), BUT
WE DO NOT THINK THAT WE ARE THEREBY FORECLOSED FROM EXAMINING THE
RECORD TO DETERMINE IF SUFFICIENT ALLEGATIONS OR SUFFICIENT EVIDENCE
SUPPORTS THE ISSUANCE OF INJUNCTIVE RELIEF.  AS DISCUSSED BELOW,
NOTHING IN THE PLEADINGS OR AFFIDAVITS, OR IN THE TESTIMONY AT THE
HEARING BEFORE THE DISTRICT COURT, DEMONSTRATES THAT THIS IS AN
EXTRAORDINARY CASE SUPPORTING THE AWARD OF JUDICIAL RELIEF.  SEE N. 68,
INFRA. 

/59/  WE NOTE THAT RULE 65 REQUIRES A SHOWING OF IRREPARABLE INJURY
FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER AS WELL.  THEREFORE,
FOR THE PURPOSES OF THIS PART OF THE DISCUSSION, IT WOULD MAKE NO
DIFFERENCE THAT THE ORDER WAS STYLED A TEMPORARY RESTRAINING ORDER,
RATHER THAN A PRELIMINARY INJUNCTION. 

/60/  THE AFFIDAVIT IN ITS ENTIRETY STATES: 

"JEANNE M. MURRAY, BEING FIRST DULY SWORN, DEPOSES AS FOLLOWS: 

"1.  I AM PRESENTLY EMPLOYED BY THE PUBLIC BUILDINGS SERVICE OF THE
GENERAL SERVICES ADMINISTRATION (GSA) AS A PROGRAM ANALYST, GS - 13. 

"2.  ON MAY 20, 1971, AT APPROXIMATELY FIVE P. M., I WAS GIVEN A
LETTER SIGNED BY MR. W. H. SANDERS, ACTING COMMISSIONER OF THE PUBLIC
BUILDINGS SERVICE, INFORMING ME THAT MY EMPLOYMENT WAS TO BE TERMINATED
AS OF SATURDAY, MAY 29, 1971.     "3.  I HAVE NEVER BEEN TOLD THAT
GSA'S PERSONNEL FILES CONTAIN ADVERSE INFORMATION ABOUT MY SERVICE IN
THE DEFENSE INTELLIGENCE AGENCY (DIA), NOR HAVE I EVER SEEN A
MEMORANDUM DEALING WITH MY EMPLOYMENT THERE. 

"4.  I WORKED FOR SLIGHTLY OVER A YEAR AT THE DIA, AND I HAVE BEEN
INFORMED BY THE ACTING CHIEF OF STAFF OF THE DIA, REAR ADMIRAL D. E.
BERGIN, THAT MY PERSONNEL FILE AT DIA CONTAINS NOTHING DEROGATORY TO
ME.     "5.  IN RECENT WEEKS, I WAS INFORMED BY MR. WILLIAM MULRONEY, A
DIA EMPLOYEE, THAT SOMEONE FROM GSA HAD BEEN MAKING INQUIRIES OF DIA
PERSONNEL ABOUT MY TERM OF SERVICE THERE." 

/61/  COMPLAINT, PAR. 12. 

/62/  149 U.S. APP. D.C., AT 262 F.2D, AT 877. 

/63/  THE COURT OF APPEALS HELD THAT THE GOVERNMENT'S FAILURE TO
PRODUCE WITNESS SANDERS, AFTER THE DISTRICT COURT CHOSE TO HEAR HIM
ORALLY, RATHER THAN TO RELY ON HIS AFFIDAVIT, ALLOWED THE DISTRICT
COURT TO CONTINUE THE TEMPORARY RESTRAINING ORDER UNTIL SANDERS
APPEARED.  WE HAVE NO DOUBT THAT A DISTRICT COURT IN APPROPRIATE
CIRCUMSTANCES MAY BE JUSTIFIED IN RESOLVING AGAINST A PARTY REFUSING TO
PRODUCE A WITNESS UNDER HIS CONTROL THE RELEVANT ISSUES UPON WHICH THAT
WITNESS' TESTIMONY MIGHT HAVE TOUCHED.  BUT IT IS CLEAR FROM THE RECORD
THAT THE TESTIMONY OF THE WITNESS SANDERS WAS DESIRED TO TEST THE BASIS
UPON WHICH RESPONDENT WAS DISCHARGED, TESTIMONY WHICH, OF COURSE, WOULD
GO TO THE ISSUE OF RESPONDENT'S ULTIMATE CHANCES FOR SUCCESS ON THE
MERITS.  WHILE THE DISTRICT COURT MAY WELL HAVE BEEN ENTITLED TO
RESOLVE THAT ISSUE AGAINST THE GOVERNMENT AT THAT STAGE OF THE
PROCEEDING, THIS CONCLUSION IN NO WAY DISPENSES WITH THE NECESSITY FOR
A CONCLUSION THAT IRREPARABLE INJURY WILL OCCUR, SINCE THAT IS A
SEPARATE ISSUE THAT MUST BE PROVED TO THE SATISFACTION OF THE COURT BY
THE PERSON SEEKING EQUITABLE RELIEF. 

/64/  IT SHOULD BE NOTED THAT VIRGINIA PETROLEUM JOBBERS DEALT WITH
A FACT SITUATION QUITE DISSIMILAR TO THIS ONE.  THERE THE FEDERAL POWER
COMMISSION HAD DENIED PETITIONER LEAVE TO INTERVENE IN PROCEEDINGS
BEFORE THE COMMISSION.  IN CONJUNCTION WITH APPEAL OF THAT DECISION THE
PETITIONER HAD FILED A "MOTION FOR A STAY OF FURTHER PROCEEDINGS
PENDING COMPLETION OF (THE COURT'S) REVIEW OF THE COMMISSION'S ORDERS
DENYING INTERVENTION OR REHEARING."  104 U.S. APP. D.C., AT 109, 259
F.2D, AT 924.  SUCH A FACT SITUATION WAS FAR CLOSER TO THE TRADITIONAL
SITUATION IN WHICH EQUITY POWERS HAVE BEEN EMPLOYED TO GRANT A STAY
PENDING APPEAL THAN IS THE SITUATION INVOLVED IN THE INSTANT CASE. 

/65/  104 U.S. APP. D.C., AT 110, 259 F.2D, 15 925 (EMPHASIS IN

  ORIGINAL). 

/66/  N. 31, SUPRA. 

/67/  94 CONG. REC. 6681 (1948). 

/68/  WE RECOGNIZE THAT CASES MAY ARISE IN WHICH THE CIRCUMSTANCES
SURROUNDING AN EMPLOYEE'S DISCHARGE, TOGETHER WITH THE RESULTANT EFFECT
ON THE EMPLOYEE, MAY SO FAR DEPART FROM THE NORMAL SITUATION THAT
IRREPARABLE INJURY MIGHT BE FOUND.  SUCH EXTRAORDINARY CASES ARE HARD
TO DEFINE IN ADVANCE OF THEIR OCCURRENCE.  WE HAVE HELD THAT AN
INSUFFICIENCY OF SAVINGS OR DIFFICULTIES IN IMMEDIATELY OBTAINING OTHER
EMPLOYMENT--EXTERNAL FACTORS COMMON TO MOST DISCHARGED EMPLOYEES AND
NOT ATTRIBUTABLE TO ANY UNUSUAL ACTIONS RELATING TO THE DISCHARGE
ITSELF--WILL NOT SUPPORT A FINDING OF IRREPARABLE INJURY, HOWEVER
SEVERELY THEY MAY AFFECT A PARTICULAR INDIVIDUAL.  BUT WE DO NOT WISH
TO BE UNDERSTOOD AS FORECLOSING RELIEF IN THE GENUINELY EXTRAORDINARY
SITUATION.  USE OF THE COURT'S INJUNCTIVE POWER, HOWEVER, WHEN
DISCHARGE OF PROBATIONARY EMPLOYEES IS AN ISSUE, SHOULD BE RESERVED FOR
THAT SITUATION RATHER THAN EMPLOYED IN THE ROUTINE CASE.  SEE ALSO
WETTRE V. HAGUE, 74 F. SUPP. 396 (MASS. 1947); VACATED AND REMANDED ON
OTHER GROUNDS, 168 F.2D 825 (CA1 1948). 

MR. JUSTICE DOUGLAS, DISSENTING. 

I THINK WITH ALL RESPECT THAT WHILE THE NARROW ISOLATED ISSUE
INVOLVED IN THIS LITIGATION IS EXPOSED IN THE OPINION OF THE COURT THE
NATURE OF THE PROBLEM IS NOT. 

RESPONDENT, A PROBATIONARY EMPLOYEE, CLAIMS THAT HER DISCHARGE WAS
NOT BASED EXCLUSIVELY ON HER WORK AS A PROBATIONARY EMPLOYEE.  IF IT
WERE BASED ON HER WORK AS A PROBATIONARY EMPLOYEE, THE PROCEDURE IS
QUITE SUMMARY AND HER RIGHT OF APPEAL TO THE CIVIL SERVICE COMMISSION
IS LIMITED TO ONLY A FEW GROUNDS SUCH AS DISCRIMINATION BASED ON RACE,
COLOR, RELIGION, SEX, OR NATIONAL ORIGIN, 5 CRF 315.806.  BUT HER CLAIM
IS THAT HER DISCHARGE WAS BASED, AT LEAST IN PART, ON CONDUCT PRIOR TO
HER FEDERAL EMPLOYMENT.  IN CASE THAT PRIOR CONDUCT IS THE BASIS OF THE
DISCHARGE, THE EMPLOYEE IS ENTITLED TO ADVANCE NOTICE OF PROPOSED
TERMINATION, AN OPPORTUNITY TO RESPOND IN WRITING WITH SUPPORTING
AFFIDAVITS, AND NOTICE OF ANY ADVERSE DECISIONS ON OR PRIOR TO THE
EFFECTIVE DATE OF THE TERMINATION, 5 CFR 315.805. 

THE CONGRESS IN 1966 PROVIDED THAT ALL WRONGFULLY DISCHARGED FEDERAL
EMPLOYEES, INCLUDING PROBATIONARY EMPLOYEES ARE ENTITLED TO BACKPAY, 5
U.S.C. 5596, AND THE COURT CONCLUDES THAT THAT IS THE EMPLOYEE'S
EXCLUSIVE REMEDY. 

BUT WHERE AN AGENCY HAS TERMINATED EMPLOYMENT AND THE EMPLOYEE
APPEALS TO THE CIVIL SERVICE COMMISSION, THE COMMISSION HAS NO POWER TO
ISSUE A STAY OF THE AGENCY'S ACTION.  THIS IS, THEREFORE, NOT A CASE
WHERE THE EMPLOYEE HAS GONE TO THE COURTS FOR RELIEF WHICH THE
COMMISSION COULD HAVE GRANTED BUT REFUSED TO DO SO.  NOR IS RESPONDENT
CHALLENGING THE CIVIL SERVICE LAW; NOR IS SHE ASKING FOR A RULING ON
THE MERITS OF HER CLAIM; NOR DID THE DISTRICT COURT, WHOSE JUDGMENT WAS
AFFIRMED BY THE COURT OF APPEALS, ACT IN DEROGATION OF THE
ADMINISTRATIVE PROCESS.  RATHER, IT PROTECTED THAT PROCESS BY STAYING
THE DISCHARGE UNTIL THE COMMISSION HAD RULED ON THE APPEAL. 

THE POWER TO ISSUE A STAY IS INHERENT IN JUDICIAL POWER AND AS
INDICATED BY THE COURT RESTS ON THE EXERCISE OF AN INFORMED DISCRETION
ON A SHOWING OF IRREPARABLE INJURY TO THE APPLICANT OR TO THE PUBLIC
INTEREST, SCRIPPS-HOWARD RADIO V. FCC, 316 U.S. 4, 14.  THAT DOCTRINE
IS NOT LIMITED, AS THE DEPARTMENT OF JUSTICE SUGGESTS, TO ISSUANCE OF
STAYS BY A COURT ONLY AFTER AN APPEAL HAS BEEN TAKEN.  WE HELD IN FTC
V. DEAN FOODS CO., 384 U.S. 597, 603 - 604, THAT THE ALL WRITS ACT, 28
U.S.C. 1651, WHICH EMPOWERS FEDERAL COURTS TO "'ISSUE ALL WRITS
NECESSARY OR APPROPRIATE IN AID OF THEIR RESPECTIVE JURIDICTIONS AND
AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW,'"  EXTENDS TO "POTENTIAL
JURISDICTION OF THE APPELLATE COURT WHERE AN APPEAL IS NOT THEN PENDING
BUT MAY BE LATER PERFECTED."  THE DISTRICT COURT HAS AT LEAST A LIMITED
REVIEW OF THE COMMISSION, NORTON V. MACY, 135 U.S. APP. D.C. 214, 217,
417 F.2D 1164; DOZIER V. UNITED STATES, 473 F.2D 866.  HENCE THE ALL
WRITS ACT JUSTIFIED ITS POWER TO GRANT A STAY. 

WE HAVE, THEREFORE, A CASE WHERE A STAY SUPPLEMENTS AND DOES NOT
CURTAIL ADMINISTRATIVE POWER, THE COMMISSION HAVING NO AUTHORITY TO
GRANT THAT RELIEF.  THE DISTRICT COURT POWER PRESERVES THE STATUS QUO,
DOES NOT PASS ON THE MERITS OF THE CONTROVERSY, AND LIMITS ITS STAY TO
THE DATE WHEN THE MERITS OF THE DISCHARGE ARE ADJUDICATED BY THE
COMMISSION.  I AGREE WITH THE COURT THAT THAT ORDER WAS APPEALABLE. 

A POINT IS MADE THAT RESPONDENT HAS NOT SHOWN IRREPARABLE INJURY. 
THAT MISSTATES THE ISSUE.  THE DISTRICT COURT ISSUED A STAY PENDING A
HEARING ON WHETHER A TEMPORARY INJUNCTION SHOULD ISSUE.  THE HEARING,
IF HELD, WOULD ENCOMPASS TWO ISSUES:  (1) WHETHER THE GROUNDS FOR
RESPONDENT'S DISCHARGE ANTEDATED HER PRESENT EMPLOYMENT (SEE 149 U.S.
APP. D.C. 256, 269, 462 F.2D 871, 884) AND WERE NOT RESTRICTED TO HER
RECORD AS A PROBATIONARY EMPLOYEE; /1/  AND (2) WHETHER SHE WOULD
SUFFER IRREPARABLE INJURY.  AS STATED BY THE COURT OF APPEALS,
RESPONDENT "MAY SHOW . . . IRREPARABLE DAMAGE, IF THE HEARING BEFORE
JUDGE GASCH IS ALLOWED TO PROCEED TO A DECISION."  ID., AT 269, 462
F.2D, AT 884.  THE STAY WAS ISSUED BY THE DISTRICT COURT ONLY BECAUSE
THE FEDERAL AGENCY INVOLVED REFUSED TO PRODUCE AS A WITNESS THE OFFICER
WHO HAD DECIDED TO DISCHARGE RESPONDENT.  BOTH THE DISTRICT COURT AND
THE COURT OF APPEALS WERE ALERT TO THE NECESSITY TO SHOW IRREPARABLE
INJURY BEFORE AN INJUNCTION ISSUES. 

ON THAT ISSUE THERE IS MORE THAN MEETS THE EYE. 

EMPLOYABILITY IS THE GREATEST ASSET MOST PEOPLE HAVE.  ONCE THERE IS
A DISCHARGE FROM A PRESTIGIOUS FEDERAL AGENCY, DISMISSAL MAY BE A BADGE
THAT BARS THE EMPLOYEE FROM OTHER FEDERAL EMPLOYMENT.  THE SHADOW OF
THAT DISCHARGE IS CAST OVER THE AREA WHERE PRIVATE EMPLOYMENT MAY BE
AVAILABLE.  AND THE HARM IS NOT ELIMINATED BY THE POSSIBILITY OF
REINSTATEMENT, FOR IN MANY CASES THE ULTIMATE ABSOLUTION NEVER CATCHES
UP WITH THE STIGMA OF THE ACCUSATION.  THUS THE COURT IN SCHWARTZ V.
COVINGTON, 341 F.2D 537, 538, ISSUED A STAY UPON A FINDING OF
IRREPARABLE INJURY WHERE A SERVICEMAN WAS TO BE DISCHARGED FOR ALLEGED
HOMOSEXUAL ACTIVITY:  "(APPELLEE HAS SHOWN THAT HE WILL SUFFER
IRREPARABLE DAMAGE IF THE STAY IS NOT GRANTED.  IRRESPECTIVE OF THE
GOVERNMENT'S RECENT ASSURANCE THAT THE APPELLEE WOULD BE REINSTATED IF
HE PREVAILS UPON REVIEW OF HIS DISCHARGE, THE INJURY AND THE STIGMA
ATTACHED TO AN UNDESIRABLE DISCHARGE ARE CLEAR."  UNLIKE A LAYOFF OR
DISCHARGE DUE TO FORTUITOUS CIRCUMSTANCES SUCH AS THE SO-CALLED ENERGY
CRISIS, A DISCHARGE ON THE BASIS OF AN EMPLOYEE'S LIFETIME RECORD OR ON
THE BASIS OF CAPTIOUS OR DISCRIMINATORY ATTITUDES OF A SUPERIOR MAY BE
A CROSS TO CARRY THE REST OF AN EMPLOYEE'S LIFE.  AND WE CANNOT
DENIGRATE THE IMPORTANCE OF ONE'S SOCIAL STANDING OR THE STATUS OF
SOCIAL STIGMA AS LEGALLY RECOGNIZED HARM.  IN AH KOW V. NUAN, 5 SAWY. 
552, THE CIRCUIT COURT, SPEAKING THROUGH MR. JUSTICE FIELD, HELD THAT A
CHINESE PRISONER COULD RECOVER DAMAGES FROM THE SHERIFF WHO CUT OFF HIS
QUEUE, THE INJURY CAUSING GREAT MENTAL ANGUISH, DISGRACE IN THE EYES OF
FRIENDS AND RELATIVES, AND OSTRACISM FROM ASSOCIATION WITH MEMBERS OF
HIS OWN RACE. 

THERE IS NO FRONTIER WHERE THE EMPLOYEE MAY GO TO GET A NEW START. 
WE LIVE TODAY IN A SOCIETY THAT IS CLOSELY MONITORED.  ALL OF OUR
IMPORTANT ACTS, OUR SETBACKS, THE ACCUSATIONS MADE AGAINST US GO INTO
DATA BANKS, INSTANTLY RETRIEVED BY THE COMPUTER.  /2/  AN ARREST GOES
INTO THE DATA BANK EVEN THOUGH IT TURNS OUT TO BE UNCONSTITUTIONAL OR
BASED ON MISTAKEN IDENTITY.  THERE IS NO FEDERAL PROCEDURE FOR ERASING
ARRESTS.  WHILE THEY ARISE IN 50 STATES AS WELL AS IN THE FEDERAL AREA,
ONLY A FEW STATES HAVE PROCEDURES FOR ERASING THEM; AND THAT ENTAILS A
LONG AND LABORIOUS PROCEDURE.  /3/  MOREOVER, THIS GENERATION GREW UP
IN THE AGE WHERE MILLIONS OF PEOPLE WERE SCREENED FOR "LOYALTY" AND
"SECURITY"; AND MANY WERE DISCHARGED FROM THE FEDERAL SERVICE; MANY
RESIGNED RATHER THAN FACE THE ORDEAL OF THE "WITCH HUNT" THAT WAS LAID
UPON US.  DISCHARGE FROM THE FEDERAL SERVICE OR RESIGNATION UNDER FIRE
BECAME TELLTALE SIGNS OF UNDERSIRABILITY.  THEREFORE, THE CASE OF
IRREPARABLE INJURY FOR AN UNEXPLAINED DISCHARGE FROM FEDERAL EMPLOYMENT
MAY BE PLAIN ENOUGH ON A HEARING. 

THE DISTRICT COURT AND THE COURT OF APPEALS WERE WELL WITHIN THE
LIMITS OF THE LAW IN GRANTING A STAY SO THAT THE ISSUE OF IRREPARABLE
INJURY MIGHT BE DETERMINED.  IT HARDLY COMPORTS WITH ANY STANDARD FOR
THE EXPENDITURE OF JUDICIAL ENERGIES TO SPEND OUR TIME TRYING TO FIND
ERROR IN THE EXERCISE OF THE LOWER COURT'S DISCRETION TO PROTECT
FEDERAL EMPLOYEES BY GIVING THEM AT LEAST A CHANCE TO PROVE IRREPARABLE
INJURY. 

/1/  WHERE, AS HERE, CONDUCT PRIOR TO APPOINTMENT AS A PROBATIONARY
EMPLOYEE AS WELL AS CONDUCT DURING THE PERIOD OF EMPLOYMENT IS ALLEGED
TO BE THE BASIS OF THE DISCHARGE, THE REQUIREMENTS OF PROCEDURAL DUE
PROCESS ARE OBVIOUS.  WE SAID IN WIEMAN V. UPDEGRAFF, 344 U.S. 183,
192, "IT IS SUFFICIENT TO SAY THAT CONSTITUTIONAL PROTECTION DOES
EXTEND TO THE PUBLIC SERVANT WHOSE EXCLUSION PURUSANT TO A STATUTE IS
PATENTLY ARBITRARY OR DISCRIMINATORY."  AND SEE SCHWARTZ V. COVINGTON,
341 F.2D 537, 538. 

/2/  WITH DOSSIERS BEING COMPILED BY COMMERCIAL CREDIT BUREAUS,
STATE AND LOCAL LAW ENFORCEMENT AGENCIES, THE CIA, THE FBI, THE IRS,
THE ARMED SERVICES, AND THE CENSUS BUREAU, WE LIVE IN AN ORWELLIAN AGE
IN WHICH THE COMPUTER HAS BECOME "THE HEART OF A SURVEILLANCE SYSTEM
THAT WILL TURN SOCIETY INTO A TRANSPARENT WORLD."  MILLER, COMPUTERS,
DATA BANKS AND INDIVIDUAL PRIVACY:  AN OVERVIEW, 4 COL. HUMAN RIGHTS L.
REV. 1, 2 (1972).  ALTHOUGH THE SUBJECT OF CONGRESSIONAL CONCERN, THE
PROBLEM IS ONE WHICH HAS THUS FAR AVOIDED LEGISLATIVE CORRECTION.  SEE
FEDERAL DATA BANKS, COMPUTERS AND THE BILL OF RIGHTS, HEARINGS BEFORE
THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON
THE JUDICIARY, 92D CONG., 1ST SESS. (1971).  SEE ALSO A. MILLER, THE
ASSAULT ON PRIVACY (1971). 

/3/  ILLINOIS PROVIDES THAT PHOTOGRAPHS, FINGERPRINTS, ETC., BE
RETURNED TO UNCONVICTED ARRESTEES UPON ACQUITTAL OR RELEASE AND FURTHER
PROVIDES THAT THE ARRESTEE MAY PETITION A LOCAL COURT TO HAVE THE
RECORD EXPUNGED BY THE ARRESTING AUTHORITIES.  THERE IS, HOWEVER, NO
METHOD FOR RETRIEVING RECORDS WHICH HAVE BEEN DISTRIBUTED TO OTHER LAW
ENFORCEMENT AUTHORITIES OR TO PRIVATE INDIVIDUALS.  ILL. ANN. STAT., C.
38, 206 - 5 (1973).  CONNECTICUT HAS A STATUTE WITH SIMILAR
SHORTCOMINGS.  CONN. GEN. STAT. ANN. 54 - 90 (SUPP. 1971); SEE SATTER &
KALOM, FALSE ARREST:  COMPENSATION AND DETERRENCE, 43 CONN. B. J. 598,
612 - 613.  NEW YORK'S FORMER PENAL LAW PROVIDED THAT ALL FINGERPRINTS,
PHOTOGRAPHS, ETC., OF THOSE ACQUITTED OF CRIMINAL CHARGES HAD TO BE
RETURNED TO THE INDIVIDUAL IF NO OTHER CRIMINAL PROCEEDINGS WERE
PENDING AGAINST THE INDIVIDUAL AND HE HAD NO PRIOR CONVICTIONS.  N.Y.
PENAL LAW 516 (1909).     MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE
BRENNAN CONCURS,

  DISSENTING. 

IN MY VIEW NO APPEALABLE ORDER HAS BEEN ENTERED IN THIS CASE, AND
BOTH THE COURT OF APPEALS AND THIS COURT ACCORDINGLY LACK
JURISDICTION. 

THE ORDERS ISSUED BY THE DISTRICT COURT ARE BOTH TEMPORARY
RESTRAINING ORDERS.  THE FIRST, ISSUED ON MAY 28 AND CAPTIONED
"TEMPORARY RESTRAINING ORDER," ENJOINED MRS. MURRAY'S DISMISSAL UNTIL
THE DETERMINATION OF HER APPLICATION FOR AN INJUNCTION.  THE SECOND,
ISSUED ON JUNE 4 AND ALSO CAPTIONED "TEMPORARY RESTRAINING ORDER,"
PROVIDES "THAT THE TEMPORARY RESTRAINING ORDER ISSUED BY THIS COURT AT
TWELVE O'CLOCK P. M., MAY 28, 1971, IS CONTINUED UNTIL THE APPEARANCE
OF THE AFORESAID W. H. SANDER."  AT NO TIME DID THE DISTRICT COURT
INDICATE IT WAS ISSUING ANYTHING BUT A TEMPORARY RESTRAINING ORDER. 
DURING THE HEARING ON THE APPLICATION FOR A PRELIMINARY INJUNCTION,
AFTER THE COURT INDICATED IT WANTED TO HEAR FROM MR. SANDERS IN PERSON,
THE GOVERNMENT INFORMED THE COURT THAT MR. SANDERS WAS THEN OUT OF TOWN
ON VACATION.  THE COURT REPLIED:  "LET ME KNOW WHEN HE CAN BE
AVAILABLE."  COUNSEL FOR THE GOVERNMENT RESPONDED:  "VERY WELL."  AND
THE DISTRICT COURT THEN SAID:  "THE T. R. O. WILL BE CONTINUED UNTIL HE
SHOWS UP . . . TELL THE AGENCY I WILL CONTINUE THE TEMPORARY
RESTRAINING ORDER UNTIL THE WITNESS APPEARS."  TR. 10. 

IT IS WELL SETTLED THAT THE GRANT OR DENIAL OF A TEMPORARY
RESTRAINING ORDER IS NOT APPEALABLE, EXCEPT IN EXTRAORDINARY
CIRCUMSTANCES, NOT PRESENT HERE, WHERE THE DENIAL OF THE TEMPORARY
RESTRAINING ORDER ACTUALLY DECIDES THE MERITS OF THE CASE OR IS
EQUIVALENT TO A DISMISSAL OF THE SUIT.  SEE GENERALLY 11 C. WRIGHT & A.
MILLER, FEDERAL PRACTICE & PROCEDURE 2962, PP. 616 - 617 (1973), AND
CASES THERE CITED. 

THE COURT HOLDS, HOWEVER, THAT SINCE THE TEMPORARY RESTRAINING ORDER
WAS EXTENDED BY THE DISTRICT COURT BEYOND THE TIME LIMITATION IMPOSED
BY FED. RULE CIV. PROC. 65(B), IT BECAME AN APPEALABLE PRELIMINARY
INJUNCTION.  I CANNOT AGREE.  FED. RULE CIV. PROC. 52(A) EXPRESSLY
PROVIDES THAT "IN GRANTING OR REFUSING INTERLOCUTORY INJUNCTIONS THE
COURT SHALL . . . SET FORTH THE FINDINGS OF FACT AND CONCLUSIONS OF LAW
WHICH CONSTITUTE THE GROUNDS OF ITS ACTION."  THIS RULE APPLIES TO
PRELIMINARY INJUNCTIONS, AND AS NO FINDINGS OF FACT AND CONCLUSIONS OF
LAW HAVE YET BEEN FILED IN THIS CASE, NO VALID PRELIMINARY INJUNCTION
WAS EVER ISSUED.  SEE NATIONAL MEDIATION BOARD V. AIR LINE PILOTS
ASSN., 116 U.S. APP. D.C. 300, 323 F.2D 305 (1963); SIMS V. GREENE, 160
F.2D 512 (CA3 1947). 

NOR WOULD IT MAKE SENSE FOR THIS COURT TO REVIEW THE DISTRICT
COURT'S ORDER IN THIS CASE AS THE GRANT OF A PRELIMINARY INJUNCTION. 
WHERE THE DISTRICT COURT HAS NOT ENTERED FINDINGS OF FACE AND
CONCLUSIONS OF LAW UNDER RULE 52(A), MEANINGFUL REVIEW IS WELL-NIGH
IMPOSSIBLE.  "IT IS OF THE HIGHEST IMPORTANCE TO A PROPER REVIEW OF THE
ACTION OF A COURT IN GRANTING OR REFUSING A PRELIMINARY INJUNCTION THAT
THERE SHOULD BE FAIR COMPLIANCE WITH RULE 52(A) OF THE RULES OF CIVIL
PROCEDURE."  MAYO V. LAKELAND HIGHLANDS CANNING CO., 309 U.S. 310, 316
(1940). 

"IT IS SUGGESTED THAT IF AN INDEFINITELY EXTENDED TEMPORARY
RESTRAINING ORDER REMAINED UNAPPEALABLE, THE DISTRICT COURT WOULD HAVE
VIRTUALLY UNLIMITED AUTHORITY OVER THE PARTIES IN AN INJUNCTIVE
ACTION.  AT THE OUTSET, THIS CANNOT JUSTIFY THIS COURT'S REACHING THE
MERITS OF MRS. MURRAY'S CLAIM FOR A PRELIMINARY INJUNCTION.  EVEN IF
THE ORDER ENTERED BY THE DISTRICT COURT IS APPEALABLE, IT SHOULD BE
APPEALABLE ONLY FOR THE PURPOSES OF HOLDING IT INVALID FOR FAILURE TO
COMPLY WITH RULE 52(A).  THIS WAS THE PRECISE COURSE TAKEN BY THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IN NATIONAL MEDIATION
BOARD, SUPRA, ON WHICH THE MAJORITY RELIES.  SEE ALSO SIMS V. GREENE,
SUPRA. 

IN ADDITION, THE GOVERNMENT HAD OTHER COURSES IT COULD HAVE TAKEN IN
THIS CASE.  IN VIEW OF THE DISTRICT COURT'S ERROR IN GRANTING A
RESTRAINING ORDER OF UNLIMITED DURATION WITHOUT COMPLYING WITH THE
REQUIREMENTS FOR A PRELIMINARY INJUNCTION, THE GOVERNMENT COULD HAVE
MOVED THE DISTRICT COURT TO DISSOLVE ITS ORDER INDEFINITELY CONTINUING
THE TEMPORARY RESTRAINING ORDER.  RULE 65(B) EXPRESSLY PROVIDES FOR
SUCH A MOTION.  /1/  HAD T GOVERNMENT FOLLOWED THIS COURSE, THE
DISTRICT COURT COULD HAVE CORRECTED ITS ERROR AND GONE ON TO RESOLVE
THE ISSUES PRESENTED BY THE APPLICATION FOR A PRELIMINARY INJUNCTION. 
THE END RESULT WOULD HAVE BEEN THE GRANT OR DENIAL OF A PRELIMINARY
INJUNCTION, WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW, WHICH WE
COULD MEANINGFULLY REVIEW. 

HERE, INSTEAD, WE FIND THE SUPREME COURT DETERMINING THAT ALTHOUGH
THE DISTRICT COURT HAD JURISDICTION TO GRANT INJUNCTIVE RELIEF, THE
EQUITIES OF MRS. MURRAY'S CASE DID NOT SUPPORT A PRELIMINARY
INJUNCTION, WHEN NEITHER THE DISTRICT COURT NOR THE COURT OF APPEALS
HAS YET CONFRONTED THE LATTER ISSUE.  /2/  I DO NOT BELIEVE THIS MAKES
FOR SOUND LAW. 

SINCE THE MAJORITY PERSISTS IN CONSIDERING THE MERITS OF MRS.
MURRAY'S CLAIM FOR INJUNCTIVE RELIEF, SOME ADDITIONAL COMMENT IS IN
ORDER.  I AGREE WITH THE MAJORITY'S CONCLUSION THAT CONGRESS DID NOT
DIVEST FEDERAL COURTS OF THEIR LONG-EXERCISED AUTHORITY TO ISSUE
TEMPORARY INJUNCTIVE RELIEF PENDING THE EXHAUSTION OF BOTH
ADMINISTRATIVE AND JUDICIAL REVIEW OF AN EMPLOYEE'S CLAIM OF WRONGFUL
DISMISSAL.  I CANNOT ACCEPT, HOWEVER, THE WAY IN WHICH THE MAJORITY
OPINION THEN PROCEEDS TO TAKE AWAY WITH THE LEFT HAND WHAT IT HAS JUST
GIVEN WITH THE RIGHT, BY PRECLUDING INJUNCTIVE RELIEF IN ALL BUT SO
CALLED "EXTRAORDINARY CASES," WHATEVER THEY MAY BE. 

AT THE OUTSET, I SEE NO BASIS FOR APPLYING ANY DIFFERENT STANDARDS
FOR GRANTING EQUITABLE RELIEF IN THE CONTEXT OF A DISCHARGED
PROBATIONARY EMPLOYEE THAN THE LONG RECOGNIZED PRINCIPLES OF EQUITY
APPLIED IN ALL OTHER SITUATIONS.  SEE VIRGINIA PETROLEUM JOBBERS ASSN.
V. FPC, 104 U.S. APP. D.C. 106, 259 F.2D 921 (1958).  INDEED, IT
APPEARS THAT THE FACTORS WHICH THE MAJORITY COULD HAVE COURTS WEIGH
BEFORE GRANTING INJUNCTIVE RELIEF ARE ALL ENCOMPASSED WITHIN THE
TRADITIONAL FORMULATIONS.  THE ADEQUACY OF BACKPAY AS A REMEDY, FOR
EXAMPLE, IS RELEVANT IN DETERMINING WHETHER THE PARTY SEEKING RELIEF
HAS SHOWN THAT "WITHOUT SUCH RELIEF, IT WILL BE IRREPARABLY INJURED." 
ID., AT 110, 259 F.2D, AT 925.  LIKEWISE, THE POSSIBLE DISRUPTIVE
EFFECT WHICH TEMPORARY INJUNCTIVE RELIEF MIGHT HAVE ON THE OFFICE WHERE
RESPONDENT WAS EMPLOYED OR ON THE ADMINISTRATIVE REVIEW PROCESS ITSELF
RELATES TO WHETHER "THE ISSUANCE OF A STAY (WILL) SUBSTANTIALLY HARM
OTHER PARTIES INTERESTED IN THE PROCEEDINGS."  IBID. 

HOWEVER ONE ARTICULATES THE STANDARDS FOR GRANTING TEMPORARY
INJUNCTIVE RELIEF, I TAKE IT TO BE WELL SETTLED THAT A PREREQUISITE FOR
SUCH RELIEF IS A DEMONSTRATED LIKELIHOOD OF IRREPARABLE INJURY FOR
WHICH THERE IS NO ADEQUATE LEGAL REMEDY.  BUT I CANNOT ACCEPT THE
MAJORITY'S APPARENT HOLDING, BURIED DEEP IN A FOOTNOTE, THAT BECAUSE OF
THE BACK PAY ACT, A TEMPORARY LOSS IN INCOME CAN NEVER SUPPORT A
FINDING OF IRREPARABLE INJURY, NO MATTER HOW SEVERELY IT MAY AFFECT A
PARTICULAR INDIVIDUAL.  SEE ANTE, AT 92 N. 68.  MANY EMPLOYEES MAY LACK
SUBSTANTIAL SAVINGS, AND A LOSS OF INCOME FOR MORE THAN A FEW WEEKS'
TIME MIGHT SERIOUSLY IMPAIR THEIR ABILITY TO PROVIDE THEMSELVES WITH
THE ESSENTIALS OF LIFE--E.G., TO BUY FOOD, MEET MORTGAGE OR RENT
PAYMENTS, OR PROCURE MEDICAL SERVICES.  CF. GOLDBERG V. KELLY, 397 U.S.
254, 264 (1970).  GOVERNMENT EMPLOYEES MIGHT HAVE SKILLS NOT READILY
MARKETABLE OUTSIDE THE GOVERNMENT, MAKING IT DIFFICULT FOR THEM TO FIND
TEMPORARY EMPLOYMENT ELSEWHERE TO TIDE THEMSELVES OVER UNTIL THE
LAWFULNESS OF THEIR DISMISSAL IS FINALLY DETERMINED.  IN SOME
INSTANCES, THE LIKELIHOOD OF FINDING ALTERNATIVE EMPLOYMENT MAY BE
FURTHER REDUCED BY THE PRESENCE ON THE EMPLOYEE'S RECORDS OF THE VERY
DISMISSAL AT ISSUE.  MOREOVER, FEW EMPLOYERS WILL BE WILLING TO HIRE
AND TRAIN A NEW EMPLOYEE KNOWING HE WILL RETURN TO HIS FORMER
GOVERNMENT POSITION IF HIS APPEAL IS SUCCESSFUL.  FINALLY, THE LOSS OF
INCOME MAY BE "TEMPORARY" IN ONLY THE BROADEST SENSE OF THAT WORD.  NOT
INFREQUENTLY, DISMISSED FEDERAL EMPLOYEES MUST WAIT SEVERAL YEARS
BEFORE THE WRONGFUL NATURE OF THEIR DISMISSAL IS FINALLY SETTLED AND
THEIR RIGHT TO BACKPAY ESTABLISHED.  SEE, E.G., PAROCZAY V. UNITED
STATES, 177 CT. CL. 754, 369 F.2D 720 (1966); PATERSON V. UNITED
STATES, 162 CT. CL. 675, 319 F.2D 882 (1963). 

THE AVAILABILITY OF A BACKPAY AWARD SEVERAL YEARS AFTER A DISMISSAL
IS SCANT JUSTICE FOR A GOVERNMENT EMPLOYEE WHO MAY HAVE LONG SINCE BEEN
EVICTED FROM HIS HOME AND FOUND HIMSELF FORCED TO RESORT TO PUBLIC
ASSISTANCE IN ORDER TO SUPPORT HIS FAMILY.  AND IT IS LITTLE SOLACE TO
THOSE WHO ARE SO INJURED TO BE TOLD THAT THEIR PLIGHT IS "NORMAL" AND
"ROUTINE."  WHETHER COMMON OR NOT, SUCH CONSEQUENCES AMOUNT TO
IRREPARABLE INJURY WHICH A COURT OF EQUITY HAS POWER TO PREVENT. 

NOR CAN I AGREE WITH THE MAJORITY'S ANALYSIS OF MRS. MURRAY'S CLAIM
OF DAMAGED REPUTATION.  IT IS ARGUED THAT MRS. MURRAY CAN SUFFER NO
SIGNIFICANT LOSS OF REPUTATION BY PROCEDURAL IRREGULARITIES IN
EFFECTUATING HER DISCHARGE BECAUSE HER CLAIM IS NOT THAT SHE COULD NOT
AS A MATTER OF STATUTORY OR ADMINISTRATIVE RIGHT BE DISCHARGED, BUT
ONLY THAT SHE WAS ENTITLED TO ADDITIONAL PROCEDURAL SAFEGUARDS IN
EFFECTUATING THE DISCHARGE.  ANTE, AT 91.  IN MY VIEW, THIS ANALYSIS
NOT ONLY REFLECTS A TOTAL MISUNDERSTANDING OF THE GIST OF MRS. MURRAY'S
COMPLAINT, BUT ALSO FAILS TO COMPREHEND THE PURPOSES BEHIND THE CIVIL
SERVICE COMMISSION REGULATIONS AT ISSUE HERE. 

THE COMMISSION PROVIDES A SPECIAL PRETERMINATION PROCEDURE WHERE A
PROBATIONARY EMPLOYEE IS TO BE TERMINATED "FOR CONDITIONS ARISING
BEFORE APPOINTMENT," NOT AS AN EMPTY GESTURE, BUT RATHER BECAUSE THE
EMPLOYING AGENCY MIGHT BE MISTAKEN ABOUT THESE PREAPPOINTMENT
CONDITIONS, AND MIGHT DECIDE NOT TO DISMISS THE EMPLOYEE IF HE IS GIVEN
AN OPPORTUNITY TO PRESENT HIS SIDE OF THE STORY.  MRS. MURRAY DOES NOT
SEEK A HEARING AS AN END IN ITSELF, BUT RATHER TO CORRECT WHAT SHE
BELIEVES IS A MISTAKEN IMPRESSION THE AGENCY HAD ABOUT HER CONDUCT IN
HER PRIOR JOB, IN THE HOPE THAT WITH THE RECORD STRAIGHT, THE AGENCY
WOULD NOT DISCHARGE HER.  SHE SEEKS TO SAVE HER JOB AND TO AVOID THE
BLOT ON HER EMPLOYMENT RECORD THAT A DISMISSAL ENTAILS, AND IT IS IN
THIS SENSE THAT SHE CLAIMS HER DISMISSAL WOULD INJURE HER REPUTATION. 

WHETHER THE LIKELIHOOD OF IRREPARABLE INJURY TO MRS. MURRAY IF SHE
IS NOT ALLOWED TO RETAIN HER JOB PENDING HER ADMINISTRATIVE APPEAL,
WHEN BALANCED AGAINST THE GOVERNMENT'S INTERESTS IN HAVING HER OUT OF
THE OFFICE DURING THIS PERIOD, SUPPORTS EQUITABLE RELIEF IN THE PRESENT
CASE IS A QUESTION I WOULD LEAVE FOR THE DISTRICT COURT.  BECAUSE OF
MR. SANDERS'  ABSENCE, THE DISTRICT COURT CUT SHORT ITS HEARING ON THE
APPLICATION FOR A PRELIMINARY INJUNCTION BEFORE EITHER THE GOVERNMENT
OR MRS. MURRAY HAD AN OPPORTUNITY TO PRESENT WITNESSES OR OTHER
EVIDENCE.  MRS. MURRAY STILL HAS NOT HAD HER DAY IN COURT TO PRESENT
EVIDENCE SUPPORTING HER ALLEGATION OF IRREPARABLE INJURY, AND WHAT THAT
EVIDENCE WOULD BE WERE SHE GIVEN THAT OPPORTUNITY WE CAN ONLY
SPECULATE. 

/1/  "ON 2 DAYS' NOTICE TO THE PARTY WHO OBTAINED THE TEMPORARY
RESTRAINING ORDER WITHOUT NOTICE OR ON SUCH SHORTER NOTICE TO THAT
PARTY AS THE COURT MAY PRESCRIBE, THE ADVERSE PARTY MAY APPEAR AND MOVE
ITS DISSOLUTION OR MODIFICATION AND IN THAT EVENT THE COURT SHALL
PROCEED TO HEAR AND DETERMINE SUCH MOTION AS EXPEDITIOUSLY AS THE ENDS
OF JUSTICE REQUIRE."  FED. RULE CIV. PROC. 65(B). 

/2/ THE COURT OF APPEALS EXPRESSLY STATED THAT IT WAS NOT EVALUATING
MRS. MURRAY'S CLAIM OF IRREPARABLE INJURY BECAUSE "ANY SUCH FINDING . .
. IS FOR THE TRIAL JUDGE, WHO HAS NOT YET (AND MAY NEVER) DECIDE THIS
POINT IN FAVOR OF MRS. MURRAY."  149 U.S. APP. D.C. 256, 262 N. 21, 462
F.2D 871, 877 N. 21 (1972). 

KEITH A. JONES ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL WOOD,
ACTING ASSISTANT ATTORNEY GENERAL JAFFE, SAMUEL HUNTINGTON, AND WALTER
H. FLEISCHER. 

THOMAS J. MCGREW ARGUED THE CAUSE FOR RESPONDENT PRO HAC VICE.  WITH
HIM ON THE BRIEF WAS JAMES A. DOBKIN. 
..END :
















WINDWARD SHIPPING V. AMERICAN RADIO ASSN., 415 U.S. 104 


       CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS,

           FOURTEENTH SUPREME JUDICIAL DISTRICT

NO. 72 - 1061.  ARGUED DECEMBER 3 - 4, 1973--DECIDED

      FEBRUARY 19, 1974; 482 S. W. 2D 675, REVERSED. 


    PETITIONERS, FOREIGN-FLAG SHIPOWNERS AND AGENTS, SOUGHT

  INJUNCTIVE RELIEF IN THE TEXAS STATE COURTS TO BAR, AS TORTIOUS

  UNDER TEXAS LAW, THE PICKETING OF THEIR VESSELS BY RESPONDENT

  UNIONS, WHICH WERE PROTESTING AS SUBSTANDARD THE WAGES PAID TO

  THE FOREIGN CREWMEN, WHO MANNED THE VESSELS.  THE TRIAL COURT

  SUSTAINED RESPONDENTS' CONTENTION THAT STATE-COURT JURISDICTION

  WAS PRE-EMPTED BY THE LABOR MANAGEMENT RELATIONS ACT (LMRA), AND

  THE APPELLATE COURT AFFIRMED.  HELD:  RESPONDENTS'  ACTIVITIES,

  WHICH DID NOT INVOLVE WAGES PAID WITHIN THIS COUNTRY BUT WERE

 DESIGNED TO FORCE THE FOREIGN VESSELS TO RAISE THEIR OPERATING

  COSTS TO LEVELS COMPARABLE TO THOSE OF AMERICAN SHIPPERS, WOULD

  HAVE MATERIALLY AFFECTED THE FOREIGN SHIPS'"MARITIME OPERATIONS"

  AND PRECIPITATED RESPONSES BY THE FOREIGN SHIPOWNERS IN THE FIELD

  OF INTERNATIONAL RELATIONS TRANSCENDING THE DOMESTIC WAGE-COST

  DECISION THAT THE LMRA WAS DESIGNED TO REGULATE.  RESPONDENTS'

  PICKETING WAS CONSEQUENTLY NOT ACTIVITY "AFFECTING COMMERCE" AS

  DEFINED IN 2(6) AND (7) OF THE NATIONAL LABOR RELATIONS ACT, AS

  AMENDED BY THE LMRA, AND THE TEXAS COURTS ERRED IN HOLDING THAT

  THEY WERE PREVENTED BY THE LMRA FROM ENTERTAINING PETITIONERS'

  INJUNCTION SUIT.  BENZ V. COMPANIA NAVIERA HIDALGO, 353 U.S. 138,

  FOLLOWED; LONGSHOREMEN V. ARIADNE CO., 397 U.S. 195,

  DISTINGUISHED.  PP. 109 - 116. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND WHITE, STEWART, BLACKMUN, AND POWELL, JJ., JOINED.  BRENNAN,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ.,
JOINED, POST, P. 116. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE THE OWNERS AND MANAGING AGENTS OF TWO SHIPS WHICH
ARE REGISTERED UNDER THE LAWS OF LIBERIA AND FLY THE LIBERIAN FLAG. 
THEY SOUGHT INJUNCTIVE RELIEF IN THE STATE COURTS IN TEXAS TO BAR
PICKETING OF THEIR VESSELS BY RESPONDENT UNIONS.  THE TRIAL COURT
DENIED RELIEF, FINDING THAT THE DISPUTE WAS "ARGUABLY" WITHIN THE
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD AND THAT THE
JURISDICTION OF THE STATE COURTS WAS THERFORE PRE-EMPTED.  THE TEXAS
COURT OF CIVIL APPEALS AFFIRMED, /1/  AND WE GRANTED CERTIORARI, 412
U.S. 927 (1973), TO CONSIDER WHETHER THE ACTIVITIES HERE COMPLAINED OF
WERE ACTIVITIES "AFFECTING COMMERCE" WITHIN THE MEANING OF 2(6) AND (7)
OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 450, 29 U.S.C. 152(6) AND
(7).  /2/  WE HOLD THAT THEY WERE NOT, AND THEREFORE REVERSE THE
JUDGMENT OF THE COURT OF CIVIL APPEALS. 

        I 

THE VESSELS NORTHWIND AND THEOMANA ARE SHIPS OF LIBERIAN REGISTRY,
CARRYING CARGO BETWEEN FOREIGN PORTS AND THE UNITED STATES.  NORTHWIND
IS OWNED BY PETITIONER WESTWIND AFRICA LINE, LTD., A LIBERIAN
CORPORATION, WHILE THEOMANA IS OWNED BY PETITIONER SPS BULKCARRIERS
CORP., A LIBERIAN CORPORATION MANAGED BY PETITIONER WINDWARD SHIPPING
(LONDON) LTD., A BRITISH CORPORATION.  THE CREWS OF BOTH VESSELS ARE
COMPOSED ENTIRELY OF FOREIGN NATIONALS, REPRESENTED BY FOREIGN UNIONS
AND EMPLOYED UNDER FOREIGN ARTICLES OF AGREEMENT. 

RESPONDENTS ARE AMERICAN MARITIME UNIONS, APPARENTLY REPRESENTING A
SUBSTANTIAL MAJORITY OF AMERICAN MERCHANT SEAMEN.  /3/  ALARMED BY AN
ACCELERATING DECLINE IN THE NUMBER OF JOBS AVAILABLE TO THEIR MEMBERS,
THESE UNIONS AGREED TO UNDERTAKE COLLECTIVE ACTION AGAINST FOREIGN
VESSELS, WHICH THEY SAW AS THE MAJOR CAUSE OF THEIR BUSINESS
RECESSION.  SPECIFICALLY, THESE UNIONS AGREED TO PICKET FOREIGN SHIPS,
CALLING ATTENTION TO THE COMPETITIVE ADVANTAGE ENJOYED BY SUCH VESSELS
BECAUSE OF A DIFFERENCE BETWEEN FOREIGN AND DOMESTIC SEAMEN'S WAGES. 
ALL PARTIES CONCEDE THAT SUCH A DIFFERENCE DOES EXIST.  /4/ 

THE PICKETING HERE OCCURRED AT THE PORT OF HOUSTON, TEXAS, IN
OCTOBER 1971.  BOTH NORTHWIND AND THEOMANA WERE DOCKED WITHIN THE PORT,
AND RESPONDENTS ESTABLISHED PICKET LINES IN FRONT OF EACH VESSEL. 
THERE WERE FOUR PICKETS ASSIGNED TO EACH VESSEL, CARRYING SIGNS WHICH
READ: 

     "ATTENTION TO THE PUBLIC THE WAGES AND BENEFITS PAID SEAMEN

  ABOARD THE VESSEL THEOMANA (NORTHWIND) ARE SUBSTANDARD TO THOSE

  OF AMERICAN SEAMEN.  THIS RESULTS IN EXTREME DAMAGE TO OUR WAGE

STANDARDS AND LOSS OF OUR JOBS.  PLEASE DO NOT PATRONIZE THIS

  VESSEL.  HELP THE AMERICAN SEAMEN.  WE HAVE NO DISPUTE WITH ANY

  OTHER VESSEL ON THIS SITE." 

     (PRINTED NAMES OF THE SIX UNIONS.) 

THESE SIGNS WERE SUPPLEMENTED BY PAMPHLETS OF SIMILAR IMPORT.  /5/
THE PICKETS WERE INSTRUCTED NOT TO DISCUSS THE PICKETING WITH ANYONE,
AND THEY APPEAR TO HAVE FOLLOWED THEIR INSTRUCTIONS. 

THE PICKETING, ALTHOUGH NEITHER OBSTRUCTIVE NOR VIOLENT, WAS NOT
WITHOUT EFFECT.  LONGSHOREMEN AND OTHER PORT WORKERS REFUSED TO CROSS
THE PICKET LINES TO LOAD AND UNLOAD PETITIONERS' VESSELS.  PETITIONERS
FILED SEPARATE SUITS IN A TEXAS STATE COURT, ASKING THE COURT TO ENJOIN
THE PICKETING AS TORTIOUS UNDER TEXAS LAW.  THE PRIMARY BASIS FOR
PETITIONERS' CLAIM WAS THAT THE PICKETING SOUGHT TO INDUCE THE OWNERS
AND CREWS TO BREAK PRE-EXISTING CONTRACTS.  RESPONDENTS PRESENTED
SEVERAL DEFENSES, CONTENDING IN PARTICULAR THAT THE JURISDICTION OF THE
TEXAS COURT WAS PRE-EMPTED BY THE NATIONAL LABOR RELATIONS ACT.  /6/ 

THE TRIAL COURT SUSTAINED THIS CONTENTION, HOLDING THAT JURISDICTION
PROPERLY LAY WITH THE NLRB, AND THE TEXAS COURT OF CIVIL APPEALS
AFFIRMED.  THAT COURT FOUND THAT STATE JURISDICTION WAS PRE-EMPTED BY
THE ACT WHEN "THE ACTIVITIES COMPLAINED OF ARE ARGUABLY EITHER
PROTECTED BY SECTION 7 OR PROHIBITED BY SECTION 8 OF THE NLRA AS
AMENDED BY THE LMRA,"  /7/  SEE SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236 (1959), AND THAT THE CONDUCT HERE MET THAT TEST. 
THE COURT REJECTED PETITIONERS'  ARGUMENT THAT THE PICKETING INTERFERED
WITH THE "MARITIME OPERATIONS OF FOREIGN-FLAG SHIPS," SEE MCCULLOCH V.
SOCIEDAD NACIONAL, 372 U.S. 10 (1963), IN SUCH MANNER AS TO REMOVE IT
FROM THE BOARD'S JURISDICTION.  /8/  THE COURT CONCLUDED: 

"IF (THE PICKETING) BUT VOICES A COMPLAINT AS TO FOREIGN WAGES AND
URGES THE PUBLIC NOT TO PATRONIZE FOREIGN VESSELS IT DOES NOT ENGAGE IN
MATTERS OUTSIDE OF COMMERCE.  IT IS PEACEFUL PICKETING, PUBLICIZING A
LABOR DISPUTE, OF SUCH A CHARACTER THAT ITS VALIDITY IS SUGGESTED BY
THE COURT'S HOLDING IN THE MAINE COOKS CASE, SUPRA.  IT IS, AT LEAST
ARGUABLY, A PROTECTED ACTIVITY UNDER SECTION 7 OF THE LMRA.  AS SUCH,
IT IS AN ACTIVITY AS TO WHICH THE EXCLUSIVE JURISDICTION TO DETERMINE
ITS PROPRIETY HAS BEEN PREEMPTED TO THE NLRB."  /9/ 

PETITIONERS CONTEND THAT THE COURT OF APPEALS TOO NARROWLY CONSTRUED
THIS COURT'S DECISIONS DENYING THE NLRB JURISDICTION IN CASES INVOLVING
FOREIGN-FLAG SHIPS.  WE THEREFORE BEGIN BY EXAMINING THE PRINCIPLES
ESTABLISHED BY THOSE DECISIONS FOR DETERMINING THE JURISDICTION OF THE
NLRB. 

        II 

IN A SERIES OF CASES DECIDED OVER THE PAST 17 YEARS, /10/  THIS
COURT HAS DISCUSSED THE APPLICATION OF THE LABOR MANAGEMENT RELATIONS
ACT IN SITUATIONS WHICH MIGHT BE BROADLY DESCRIBED AS DISPUTES BETWEEN
UNIONS REPRESENTING WORKERS IN THIS COUNTRY AND OWNERS OF FOREIGN-FLAG
VESSELS OPERATING IN INTERNATIONAL MARITIME COMMERCE.  BENZ V. COMPANIA
NAVIERA HIDALGO, 353 U.S. 138 (1957), IS THE LEADING CASE ON THE
SUBJECT.  IN BENZ THE QUESTION WAS WHETHER THE LABOR MANAGEMENT
RELATIONS ACT, 1947, PRECLUDED A DIVERSITY SUIT FOR DAMAGES BROUGHT IN
THE UNITED STATES DISTRICT COURT BY FOREIGN SHIPOWNERS AGAINST
PICKETING AMERICAN UNIONS.  THE PICKETING HAD BEEN UNDERTAKEN IN
PORTLAND, OREGON, TO SUPPORT STRIKING FOREIGN CREWS EMPLOYED UNDER
FOREIGN ARTICLES AND HAD RESULTED IN THE REFUSAL OF WORKERS TO LOAD AND
REPAIR THE DOCKED FOREIGN SHIPS.  THE DISTRICT COURT HAD AWARDED
DAMAGES AND THE COURT OF APPEALS AFFIRMED. 

THIS COURT HELD THAT THE SHIPOWNERS' ACTION WAS NOT PRE-EMPTED BY
THE LABOR MANAGEMENT RELATIONS ACT.  STUDYING THE LEGISLATIVE HISTORY
OF THE ACT, THE COURT FOUND NO INDICATION THAT IT WAS INTENDED TO
GOVERN DISPUTES BETWEEN FOREIGN SHIPOWNERS AND FOREIGN CREWS.  ON THE
CONTRARY, THE COURT CONCLUDED THAT THE MOST REVEALING LEGISLATIVE
HISTORY STRONGLY SUGGESTED THE BILL WAS A "BILL OF RIGHTS . . . FOR
AMERICAN WORKINGMEN AND FOR THEIR EMPLOYERS."  353 U.S., AT 144. 
(EMPHASIS IN ORIGINAL.)  THE COURT STATED THAT THIS HISTORY
"INESCAPABLY DESCRIBES THE BOUNDARIES OF THE ACT AS INCLUDING ONLY THE
WORKINGMEN OF OUR OWN COUNTRY AND ITS POSSISSIONS."  IBID. 

RECOGNITION OF THE CLEAR CONGRESSIONAL PURPOSE TO APPLY THE LMRA
ONLY TO AMERICAN WORKERS AND EMPLOYERS WAS DOUBTLESS A SUFFICIENT
REASON TO PLACE THE PICKETING IN BENZ OUTSIDE THE ACT.  BUT THE COURT
IN THAT CASE MADE CLEAR ITS RELUCTANCE TO INTRUDE DOMESTIC LABOR LAW
WILLY-NILLY INTO THE COMPLEX OF CONSIDERATIONS AFFECTING FOREIGN TRADE,
ABSENT A CLEAR CONGRESSIONAL MANDATE TO DO SO: 

"FOR US TO RUN INTERFERENCE IN SUCH A DELICATE FIELD OF
INTERNATIONAL RELATIONS THERE MUST BE PRESENT THE AFFIRMATIVE INTENTION
OF THE CONGRESS CLEARLY EXPRESSED.  IT ALONG HAS THE FACILITIES
NECESSARY TO MAKE FAIRLY SUCH AN IMPORTANT POLICY DECISION WHERE THE
POSSIBILITIES OF INTERNATIONAL DISCORD ARE SO EVIDENT AND RETALIATIVE
ACTION SO CERTAIN."  ID., AT 147.  IN THE 17 YEARS SINCE BENZ WAS
DECIDED, CONGRESS HAS IN NO WAY INDICATED ANY SUCH "AFFIRMATIVE
INTENTION," AND THIS COURT HAS CONTINUED TO CONSTRUE THE LMRA IN
ACCORDANCE WITH THE DICTATES OF THAT CASE. 

THE REASONING OF BENZ WAS REAFFIRMED IN MCCULLOCH V. SOCIEDAD
NACIONAL, 372 U.S. 10 (1963), AND INCRES S. S. CO. V. MARITIME WORKERS,
372 U.S. 24 (1963), DECIDED TOGETHER SIX YEARS LATER.  IN MCCULLOCH, WE
HELD THAT THE NATIONAL LABOR RELATIONS BOARD HAD IMPROPERLY ASSUMED
JURISDICTION UNDER THE ACT TO ORDER AN ELECTION INVOLVING FOREIGN CREWS
OF FOREIGN-FLAG SHIPS.  REJECTING THE BOARD'S "BALANCING OF CONTACTS"
THEORY, THE COURT SAID: 

"(TO FOLLOW SUCH A SUGGESTED PROCEDURE TO THE ULTIMATE MIGHT REQUIRE
THAT THE BOARD INQUIRE INTO THE INTERNAL DISCIPLINE AND ORDER OF ALL
FOREIGN VESSELS CALLING AT AMERICAN PORTS."  372 U.S., AT 19.  /11/ IN
INCRES WE APPLIED THIS RATIONALE TO A SITUATION INVOLVING UNION
PICKETING OF A FOREIGN SHIP IN AN EFFORT TO ORGANIZE THE FOREIGN CREW. 
REVERSING THE HOLDING OF A NEW YORK STATE COURT THAT THE PICKETING WAS
ARGUABLY WITHIN THE JURISDICTION OF THE NLRB, THE COURT SAID: 

"THE BOARD'S JURISDICTION TO PREVENT UNFAIR LABOR PRACTICES, LIKE
ITS JURISDICTION TO DIRECT ELECTIONS, IS BASED UPON CIRCUMSTANCES
'AFFECTING COMMERCE,' AND WE HAVE CONCLUDED THAT MARITIME OPERATIONS OF
FOREIGN-FLAG SHIPS EMPLOYING ALIEN SEAMEN ARE NO IN 'COMMERCE' WITHIN
THE MEANING OF 2(6), 29 U.S.C. 152(6)."  372 U.S., AT 27. 

BUT BENZ AND ITS SUCCESSOR CASES HAVE NOT BEEN READ TO EXEMPT ALL
ORGANIZATIONAL ACTIVITIES FROM THE ACT'S PROTECTIONS MERELY BECAUSE
THOSE ACTIVITIES IN SOME WAY WERE DIRECTED AT AN EMPLOYER WHO WAS THE
OWNER OF A FOREIGN-FLAG VESSEL DOCKED IN AN AMERICAN PORT.  IN
LONGSHOREMEN V. ARIADNE CO., 397 U.S. 195 (1970), THE COURT HELD THAT
THE PICKETING OF FOREIGN SHIPS TO PROTEST SUBSTANDARD WAGES PAID BY
THEIR OWNERS TO NONUNION AMERICAN LONGSHOREMEN WAS "IN 'COMMERCE'
WITHIN THE MEANING OF 2(6), AND THUS MIGHT HAVE BEEN SUBJECT TO THE
REGULATORY POWER OF THE NATIONAL LABOR RELATIONS BOARD."  ID., AT 200. 
THE PICKETS IN ARIADNE, UNLIKE THE PICKETS IN BENZ OR INCRES, WERE
PRIMARILY ENGAGED IN A DISPUTE AS TO WHETHER AN EMPLOYER SHOULD HIRE
UNIONIZED OR NONUNIONIZED AMERICAN WORKERS TO PERFORM LONGSHOREMEN'S
WORK, /12/  AND THE SUBSTANDARD WAGES WHICH THEY WERE PROTESTING WERE
BEING PAID TO FELLOW AMERICAN WORKERS.  THE COURT SPECIFICALLY NOTED:
"(THIS DISPUTE CENTERED ON THE WAGES TO BE PAID AMERICAN RESIDENTS." 
ID., AT 199. 

THE TERM "IN COMMERCE," AS USED IN THE LMRA, IS OBVIOUSLY NOT SELF
DEFINING, AND CERTAINLY THE ACTIVITIES IN BENZ, MCCULLOCH, AND INCRES,
HELD NOT COVERED BY THE ACT, WERE LITERALLY JUST AS MUCH "IN COMMERCE"
AS WERE THE ACTIVITIES HELD COVERED IN ARIADNE.  THOSE CASES WHICH DENY
JURISDICTION TO THE NLRB RECOGNIZE THAT CONGRESS, WHEN IT USED THE
WORDS "IN COMMERCE" IN THE LMRA, SIMPLY DID NOT INTEND THAT ACT TO
ERASE LONGSTANDING PRINCIPLES OF COMITY AND ACCOMMODATION IN
INTERNATIONAL MARITIME TRADE.  IN LAURITZEN V. LARSEN, 345 U.S. 571,
577 (1953), THE COURT COMMENTED ON THE CONGRESSIONAL INTENT WITH
RESPECT TO THE JONES ACT OF 1920 IN THESE WORDS: 

     "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."  /13/

WE ARE EVEN MORE RELUCTANT TO ATTRIBUTE TO CONGRESS AN INTENTION TO
DISRUPT THIS COMPREHENSIVE BODY OF LAW BY CONSTRUCTION OF AN ACT
UNRELATED TO MARITIME COMMERCE AND DIRECTED SOLELY AT AMERICAN LABOR
RELATIONS. 

        III 

THE PICKETING ACTIVITIES IN THIS CASE DO NOT INVOLVE THE INESCAPABLE
INTRUSION INTO THE AFFAIRS OF FOREIGN SHIPS THAT WAS PRESENT IN BENZ
AND INCRES; RESPONDENTS SEEK NEITHER TO ORGANIZE THE FOREIGN CREWS FOR
PURPOSE OF REPRESENTATION NOR TO SUPPORT FOREIGN CREWS IN THEIR OWN
WAGE DISPUTE WITH A FOREIGN SHIPOWNER.  BUT THOSE CASES DO NOT PURPORT
TO FULLY DELINEATE THE THRESHOLD OF INTERFERENCE WITH THE MARITIME
OPERATIONS OF FOREIGN VESSELS WHICH MAKES THE LMRA INAPPLICABLE. 

THE PICKET SIGNS UTILIZED AT THE DOCKS WHERE THE NORTHWIND AND
THEOMANA WERE TIED UP PROTESTED THE WAGES PAID TO FOREIGN SEAMEN WHO
WERE EMPLOYED BY FOREIGN SHIPOWNERS UNDER CONTRACTS MADE OUTSIDE THE
UNITED STATES.  AT THE VERY LEAST, THE PICKETS MUST HAVE HOPED TO EXERT
SUFFICIENT PRESSURE SO THAT FOREIGN VESSELS WOULD BE FORCED TO RAISE
THEIR OPERATING COSTS TO LEVELS COMPARABLE TO THOSE OF AMERICAN
SHIPPERS, EITHER BECAUSE OF LOST CARGO RESULTING FROM THE
LONGSHOREMEN'S REFUSAL TO LOAD OR UNLOAD THE VESSELS, OR BECAUSE OF
WAGE INCREASES AWARDED AS A VIRTUAL SELF-IMPOSED TARIFF TO REGAIN ENTRY
TO AMERICAN PORTS.  SUCH A LARGE-SCALE INCREASE IN OPERATING COSTS
WOULD HAVE MORE THAN A NEGLIGIBLE IMPACT ON THE "MARITIME OPERATIONS"
OF THESE FOREIGN SHIPS, AND THE EFFECT WOULD BE BY NO MEANS LIMITED TO
COSTS INCURRED WHILE IN AMERICAN PORTS.  UNLIKE ARIADNE, THE PROTEST
HERE COULD NOT BE ACCOMMODATED BY A WAGE DECISION ON THE PART OF THE
SHIPOWNERS WHICH WOULD AFFECT ONLY WAGES PAID WITHIN THIS COUNTRY. 

IN THIS SITUATION, THE FOREIGN VESSELS' LOT IS NOT A HAPPY ONE.  A
DECISION BY THE FOREIGN OWNERS TO RAISE FOREIGN SEAMEN'S WAGES TO A
LEVEL MOLLIFYING THE AMERICAN PICKETS WOULD HAVE THE MOST SIGNIFICANT
AND FAR-REACHING EFFECT ON THE MARITIME OPERATIONS OF THESE SHIPS
THROUGHOUT THE WORLD.  A DECISION TO BOYCOTT AMERICAN PORTS IN ORDER TO
AVOID THE DIFFICULTIES INDUCED BY THE PICKETING WOULD BE DETRIMENTAL
NOT ONLY TO THE PRIVATE BALANCE SHEETS OF THE FOREIGN SHIPOWNERS BUT TO
THE CITIZENRY OF A COUNTRY AS DEPENDENT ON GOODS CARRIED IN FOREIGN
BOTTOMS AS IS OURS.  RETALIATORY ACTION AGAINST AMERICAN VESSELS IN
FOREIGN PORTS MIGHT LIKEWISE BE CONSIDERED, BUT THE EMPLOYMENT OF SUCH
TACTICS WOULD PROBABLY EXACERBATE AND BROADEN THE PRESENT DISPUTE. 
VIRTUALLY NONE OF THE PREDICTABLE RESPONSES OF A FOREIGN SHIPOWNER TO
PICKETING OF THIS TYPE, THEREFORE, WOULD BE LIMITED TO THE SORT OF WAGE
COST DECISION BENEFITING AMERICAN WORKINGMEN WHICH THE LMRA WAS
DESIGNED TO REGULATE.  THIS CASE, THEREFORE, FALLS UNDER BENZ RATHER
THAN UNDER ARIADNE.  /14/ 

SINCE WE HOLD THAT RESPONDENT'S PICKETING WAS NOT "IN COMMERCE" AS
DEFINED BY THE ACT, WE DO NOT REACH THE QUESTION OF WHETHER THE
ACTIVITY WAS OTHERWISE OF SUCH A NATURE THAT STATE COURTS WOULD BE
PRECLUDED BY THE LMRA FROM ENTERTAINING AN ACTION TO ENJOIN IT.  OUR
CONCLUSION THAT THE ACTIVITIES HERE INVOLVED WERE NOT "IN COMMERCE"
WITHIN THE MEANING OF 2(6) AND (7) OF THE NLRA, AS AMENDED BY THE LMRA,
RESOLVES A QUESTION WHICH, OF COURSE, IS ONE FOR THE COURTS IN THE
FIRST INSTANCE.  ARIADNE, 397 U.S., AT 200.  THE COURT OF CIVIL APPEALS
WAS THEREFORE WRONG IN HOLDING THAT THE COURTS OF THE STATE OF TEXAS
WERE PREVENTED BY THE LABOR MANAGEMENT RELATIONS ACT FROM ENTERTAINING
PETITIONERS' SUIT FOR AN INJUNCTION. 

REVERSED. 

/1/  482 S.W. 2D 675 (1972). 

/2/  THE DEFINITIONS IN 2(6) AND (7), 29 U.S.C. 152(6) AND (7), AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, ARE AS FOLLOWS: 

"(6) THE TERM 'COMMERCE' MEANS TRADE, TRAFFIC, COMMERCE,
TRANSPORTATION, OR COMMUNICATION AMONG THE SEVERAL STATES, OR BETWEEN
THE DISTRICT OF COLUMBIA OR ANY TERRITORY OF THE UNITED STATES AND ANY
STATE OR OTHER TERRITORY, OR BETWEEN ANY FOREIGN COUNTRY AND ANY STATE,
TERRITORY, OR THE DISTRICT OF COLUMBIA, OR WITHIN THE DISTRICT OF
COLUMBIA OR ANY TERRITORY, OR BETWEEN POINTS IN THE SAME STATE BUT
THROUGH ANY OTHER STATE OR ANY TERRITORY OR THE DISTRICT OF COLUMBIA OR
ANY FOREIGN COUNTRY. 

"(7) THE TERM 'AFFECTING COMMERCE' MEANS IN COMMERCE, OR BURDENING OR
OBSTRUCTING COMMERCE OF THE FREE FLOW OF COMMERCE, OR HAVING LED OR
TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE OR
THE FREE FLOW OF COMMERS." 

/3/  RESPONDENTS DESCRIBE THEMSELVES IN THEIR BRIEF AS "SIX LABOR
ORGANIZATIONS WHO COLLECTIVELY REPRESENT THE OVERWHELMING MAJORITY AND
PRACTICALLY ALMOST ALL AMERICAN MERCHANT SEAMEN."  (BRIEF FOR
RESPONDENTS 2.) 

/4/  THE PETITIONERS STATE:  "WE DO NOT CONTEST THE FACT THAT THE
WAGES OF FOREIGN CREWS ON FOREIGN SHIPS ARE SUBSTANTIALLY LOWER THAN
THOSE PAID TO AMERICAN SEAMEN ON AMERICAN SHIPS."  BRIEF FOR
PETITIONERS 19.  THE BRIEF NOTES SOME ESTIMATES THAT THE AMERICAN WAGE
COSTS ARE BETWEEN 2 1/2 AND 4 TIMES HIGHER THAN THE FOREIGN WAGE
COSTS.  ID., AT 19 N. 

/5/  THESE LEAFLETS STATED: 

"TO THE PUBLIC--AMERICAN SEAMEN HAVE LOST APPROXIMATELY 50% OF THEIR
JOBS IN THE PAST FEW YEARS TO FOREIGN FLAG SHIPS EMPLOYING SEAMEN AT A
FRACTION OF THE WAGES OF AMERICAN SEAMEN. 

"AMERICAN DOLLARS FLOWING TO THESE FOREIGN SHIP OWNERS OPERATING
SHIPS AT WAGES AND BENEFITS SUBSTANDARD TO AMERICAN SEAMEN, ARE HURTING
OUR BALANCE OF PAYMENTS IN ADDITION TO HURTING OUR ECONOMY BY THE LOSS
OF JOBS. 

"A STRONG AMERICAN MERCHANT MARINE IS ESSENTIAL TO OUR NATIONAL
DEFENSE.  THE FEWER AMERICAN FLAG SHIPS THERE ARE, THE WEAKER OUR
POSITION WILL BE IN A PERIOD OF NATIONAL EMERGENCY. 

"PLEASE PATRONIZE AMERICAN FLAG VESSELS, SAVE OUR JOBS, HELP OUR
ECONOMY AND SUPPORT OUR NATIONAL DEFENSE BY HELPING TO CREATE A STRONG
AMERICAN MERCHANT MARINE. 

"OUR DISPUTE IS LIMITED TO THE VESSEL PICKETED AT THIS SITE, THE S.
S.--" (APP. 21). 

/6/  THE COURTS BELOW CONSIDERED ONLY THIS GROUND ADVANCED BY
RESPONDENTS, FINDING IT DISPOSITIVE.  WE EXPRESS NO OPINION ON THE
MERITS OF RESPONDENTS'  OTHER CONTENTIONS. 

/7/  482 S. W. 2D, AT 678. 

/8/  ID., AT 680 - 682. 

/9/  ID., AT 682. 

/10/  BENZ V. COMPANIA NAVIERA HIDALGO, 353 U.S. 138 (1957);
MCCULLOCH V. SOCIEDAD NACIONAL, 372 U.S. 10 (1963); INCRES S. S. CO. V.
MARITIME WORKERS, 372 U.S. 24 (1963); LONGSHOREMEN V. ARIADNE CO., 397
U.S. 195 (1970). 

/11/  THE COURT IN MCCULLOCH ALSO NOTED THAT THE BOARD'S ACTIONS HAD
"AROUSED VIGOROUS PROTESTS FROM FOREIGN GOVERNMENTS AND CREATED
INTERNATIONAL PROBLEMS FOR OUR GOVERNMENT."  372 U.S., AT 17. 

/12/  THE EVIDENCE IN ARIADNE SHOWED THAT THE WORK AT ISSUE WAS
PERFORMED PARTLY BY MEMBERS OF THE FOREIGN SHIPS' CREWS AND PARTLY BY
OUTSIDE LABOR.  397 U.S., AT 196.  THOSE WORKERS INCLUDED IN THE
CLASSIFICATION "OUTSIDE LABOR"  WERE NONUNION MEMBERS.  THIS COURT
NOTED THAT "(THE PARTICIPATION OF SOME CREW MEMBERS IN THE LONGSHORE
WORK DOES NOT OBSCURE THE FACT THAT THIS DISPUTE CENTERED ON THE WAGES
TO BE PAID AMERICAN RESIDENTS, WHO WERE EMPLOYED BY EACH FOREIGN SHIP
NOT TO SERVE AS MEMBERS OF ITS CREW BUT RATHER TO DO CASUAL LONGSHORE
WORK."  ID., AT 199. 

/13/  THE BASIC QUESTION AT ISSUE IN LAURITZEN WAS WHETHER AMERICAN
OR DANISH LAW APPLIED TO A MARITIME TORT WHICH OCCURRED IN HAVANA
HARBOR.  ALTHOUGH ANALYSIS OF THE JONES ACT THERE OBVIOUSLY INVOLVED
DIFFERENT CONSIDERATIONS FROM ANALYSIS OF THE LABOR MANAGEMENT
RELATIONS ACT HERE, IT IS INTERESTING TO NOTE THAT SOME ARGUMENTS AT
LEAST ARE COMMON TO BOTH CASES.  IN LAURITZEN THIS COURT REJECTED A
"CANDID AND BRASH APPEAL" MADE BY THE SEAMEN AND VARIOUS AMICI THAT THE
COURT SHOULD "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."  345 U.S., AT 593.  WE OBSERVED AT
THAT TIME THAT SUCH ARGUMENTS WERE OBVIOUSLY BETTER DIRECTED TO
CONGRESS. 

/14/  WE DO NOT FIND THE RATIONALE OF MARINE COOKS & STEWARDS V.
PANAMA S. S. CO., 362 U.S. 365 (1960), TO BE APPLICABLE HERE.  ALTHOUGH
THAT CASE INVOLVED A LABOR SITUATION STRIKINGLY SIMILAR TO THE
SITUATION INVOLVED IN THIS CASE, THE CONTROLLING QUESTION IN MARINE
COOKS WAS THE JURISDICTION OF A FEDERAL DISTRICT COURT TO ENJOIN
PICKETING OF A FOREIGN-FLAG SHIP UNDER THE NORRIS-LAGUARDIA ACT, 29
U.S.C. 101 ET SEQ. THE COURT HELD THAT IN SUCH CIRCUMSTANCES THE
DISTRICT COURTS HAD NO JURISDICTION.  HOWEVER, AS WE LATER NOTED IN
MCCULLOCH, 372 U.S., AT 18, MARINE COOKS "CANNOT BE REGARDED AS
LIMITING THE EARLIER BENZ HOLDING . . . SINCE NO QUESTION AS TO
'WHETHER THE PICKETING . . . WAS TORTIOUS UNDER STATE OR FEDERAL LAW'
WAS EITHER PRESENTED OR DECIDED."  OBVIOUSLY THE QUESTION WHETHER
CONGRESS INTENDED THE FEDERAL COURTS TO STAY OUT OF LABOR INJUNCTION
BUSINESS INVOLVES SIGNIFICANTLY DIFFERENT CONSIDERATIONS FROM THE
QUESTION WHETHER CONGRESS INTENDED THE LABOR MANAGEMENT RELATIONS ACT
TO APPLY TO THE TYPE OF PICKETING OF FOREIGN SHIPS INVOLVED HERE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

TODAY'S REVERSAL OF THE TEXAS COURT OF CIVIL APPEALS DOES NOT, OF
COURSE, END THIS CASE.  THERE REMAIN FOR DISPOSITION ON REMAND TWO OF
THE RESPONDENTS'  DEFENSES NOT REACHED BY THE TEXAS COURTS, NAMELY (1)
THAT TEXAS LAW DOES NOT PROSCRIBE RESPONDENTS' PICKETING, AND (2) THAT,
IN ANY EVENT, THE FIRST AND FOURTEENTH AMENDMENTS PROTECT RESPONDENTS'
CONDUCT.  /1/ 

BUT THE FACT THAT TODAY'S DECISION DOES NOT FINALLY DECIDE THE
LEGALITY OF RESPONDENTS' PICKETING SHOULD NOT OBSCURE THE SIGNIFICANCE
OF THE COURT'S HOLDING.  NINETY-FIVE PERCENT OF OUR EXPORT TRADE HAS
ALREADY FLED AMERICAN-FLAG VESSELS FOR CHEAPER, FOREIGN-REGISTERED
SHIPPING.  /2/  IN HOLDING THAT RESPONDENTS' PICKETING AGAINST FOREIGN
FLAG VESSELS DOES NOT GIVE RISE TO A DISPUTE "AFFECTING COMMERCE"
WITHIN THE NATIONAL LABOR RELATIONS BOARD'S JURISDICTION, THE COURT
EFFECTIVELY DEPRIVES AMERICAN SEAMEN, AMONG ALL AMERICAN EMPLOYEES IN
COMMERCE, OF ANY FEDERALLY PROTECTED WEAPON WITH WHICH TO TRY TO SAVE
THEIR JOBS.  /3/  ADDITIONALLY, THE COURT CREATES NEW DIFFICULTIES FOR
THE BOARD IN ITS ADMINISTRATION OF THE ACT BY MAKING THE BOARD'S
STATUTORY JURISDICTION TURN ON THE IDENTITY OF THE COMPETITOR THAT
MIGHT BE AFFECTED BY THE PICKETING--A DISTRINCTION RELEVANT IN THE
DETERMINATION WHETHER PICKETING IS PROTECTED OR PROHIBITED ACTIVITY
UNDER THE ACT, BUT A DISTINCTION REJECTED IN OTHER CONTEXTS IN THE
DETERMINATION OF BOARD JURISDICTION.  /4/ 

THERE IS, OF COURSE, NO DOUBT THAT CONGRESS POSSESSES THE POWER TO
SUBJECT FOREIGN SHIPPING IN AMERICAN TERRITORIAL WATERS TO THE FEDERAL
LABOR LAWS.  /5/  AND THE COURT CONCEDES THAT THE PICKETING ACTIVITIES
INVOLVED HERE FALL LITERALLY WITHIN THE TERM "COMMERCE" AS USED IN THE
LABOR MANAGEMENT RELATIONS ACT.  ANTE, AT 112. 

AFTER ACKNOWLEDGING THE PAUCITY OF SUPPORT FOR AN EXCLUSION IN THE
TERM "COMMERCE," THE COURT, HOWEVER, CONCLUDES THAT PRIOR CASES
CONSTRUING THE "AFFECTING COMMERCE" LIMITATION IN 2(6), 2(7), AND 10
(29 U.S.C. 152(6), 152(7), AND 160) SUPPORT THE HOLDING THAT
RESPONDENTS' PICKETING AGAINST FOREIGN-FLAG VESSELS IS CONDUCT NO
COGNIZABLE BY THE BOARD.  WITH RESPECT, I THINK THAT THE COURT MISREADS
THOSES CASES, AND ALSO FAILS TO TAKE ACCOUNT OF OTHER RELEVANT
CONGRESSIONAL AND JUDICIAL GUIDANCE THAT LEADS TO A CONTRARY
CONCLUSION. 

AS THE COURT CONCEDES, NONE OF THE CASES RELIED UPON REACHED THE
QUESTION BEFORE US, THAT IS, WHETHER AMERICAN SEAMEN MAY EMPLOY
ECONOMIC WEAPONS TO TRY TO SAVE THEIR JOBS IN IMPROVING THE COMPETITIVE
POSITIONS OF THEIR DOMESTIC EMPLOYERS VIS-A-VIS FOREIGN SHIPPING.  YET
THE COURT RELIES UPON THOSE DECISIONS AS SUPPORTING THE PROPOSITION
THAT WE MUST CONCLUDE THAT CONGRESS "SIMPLY DID NOT INTEND THAT ACT
(LMRA) TO ERASE LONGSTANDING PRINCIPLES OF COMITY AND ACCOMMODATION IN
INTERNATIONAL MARITIME TRADE," ANTE, AT 112 - 113, BECAUSE THE ECONOMIC
IMPACT UPON FOREIGN SHIPPING FROM RESPONDENTS' PICKETING MIGHT SEVERELY
DISRUPT THE MARITIME OPERATIONS OF FOREIGN VESSELS.  NOT A WORD OR
SENTENCE IN ANY OPINION IN THOSE CASES SUPPORTS THAT READING.  RATHER,
THOSE DECISIONS RESTED SQUARELY UPON THE REASONING THAT, IN
CIRCUMSTANCES WHERE THE BOARD COGNIZANCE OF A DISPUTE WILL NECESSARILY
INVOLVE BOARD INQUIRY INTO THE LABOR RELATIONS BETWEEN FOREIGN CREWS
AND FOREIGN VESSELS, CONGRESS COULD NOT BE UNDERSTOOD TO HAVE GRANTED
THE BOARD JURISDICTION OF THE DISPUTE. 

IN BENZ V. COMPANIA NAVIERA HIDALGO, 353 U.S. 138 (1957), THE
SEMINAL CASE IN THIS AREA, AN AMERICAN UNION ATTEMPTED TO ORGANIZE THE
FOREIGN CREW OF A VESSEL OPERATING UNDER A FOREIGN FLAG.  THE COURT,
HOLDING THAT CONGRESS DID NOT FASHION THE LMRA "TO RESOLVE LABOR
DISPUTES BETWEEN NATIONALS OF OTHER COUNTRIES OPERATING SHIPS UNDER
FOREIGN LAWS," ID., AT 143, SAID: 

     "IT SHOULD BE NOTED AT THE OUTSET THAT THE DISPUTE FROM WHICH

  THESE ACTIONS SPRANG AROSE ON A FOREIGN VESSEL.  IT WAS BETWEEN A

  FOREIGN EMPLOYER AND A FOREIGN CREW OPERATING UNDER AN AGREEMENT

  MADE ABROAD UNDER THE LAWS OF ANOTHER NATION.  THE ONLY AMERICAN

CONNECTION WAS THAT THE CONTROVERSY ERUPTED WHILE THE SHIP WAS

  TRANSIENTLY IN A UNITED STATES PORT AND AMERICAN LABOR UNIONS

  PARTICIPATED IN ITS PICKETING."  ID., AT 142. 

SIMILARLY, SUBSEQUENT DECISIONS ALSO TURNED JURISDICTION ON THE
DETERMINATION WHETHER BOARD COGNIZANCE WOULD REQUIRE THE BOARD TO
INQUIRE INTO THE INTERNAL RELATIONS BETWEEN THE FOREIGN SHIP'S CREW AND
ITS FOREIGN OWNER.  IN MCCULLOCH V. SOCIEDAD NACIONAL, 372 U.S. 10
(1963), WE HELD THAT THE BOARD DID NOT HAVE JURISDICTION TO ORDER AN
ELECTION ON A FOREIGN-FLAG VESSEL, FOR 

"TO FOLLOW SUCH A SUGGESTED PROCEDURE TO THE ULTIMATE MIGHT REQUIRE
THAT THE BOARD INQUIRE INTO THE INTERNAL DISCIPLINE AND ORDER OF ALL
FOREIGN VESSELS CALLING AT AMERICAN PORTS."  ID., AT 19. 

IN INCRES S. S. CO. V. MARITIME WORKERS, 372 U.S. 24 (1963), THE
ISSUE WAS WHETHER THE BOARD HAD POWER TO ADJUDICATE THE LEGALITY OF THE
EFFORTS OF A UNION TO ORGANIZE THE MEMBERS OF A FOREIGN CREW.  AGAIN,
THE COURT HELD THAT THE BOARD WAS WITHOUT JURISDICTION UNDER THE ACT,
SINCE ADJUDICATION OF THAT QUESTION WOULD REQUIRE THAT THE BOARD
EXAMINE INTO THE RELATIONS BETWEEN THAT CREW AND ITS FOREIGN-FLAG
EMPLOYER.  ID., AT 27 - 28. 

THE QUESTION WHETHER A LABOR DISPUTE WOULD NECESSITATE BOARD INQUIRY
INTO THE RELATIONS BETWEEN FOREIGN VESSELS AND CREWS WAS YET AGAIN
CENTRAL IN LONGSHOREMEN V. ARIADNE CO., 397 U.S. 195 (1970), THE MOST
RECENT OF THE CASES, WHERE WE SUSTAINED BOARD JURISDICTION OF A DISPUTE
INVOLVING PICKETING OF A FOREIGN-FLAG SHIP IN PROTEST AGAINST WAGES
BEING PAID TO AMERICAN LONGSHOREMEN UNLOADING THE FOREIGN VESSEL IN AN
AMERICAN PORT.  WE HELD THAT THE PROHIBITED INQUIRY WOULD NOT RESULT IN
THAT CASE, EXPLAINING: 

     "WE HOLD THAT (THE LONGSHOREMEN'S) ACTIVITIES WERE NOT

  ('MARITIME OPERATIONS OF FOREIGN-FLAG SHIPS').  THE AMERICAN

  LONGSHOREMEN'S SHORT-TERM, IRREGULAR AND CASUAL CONNECTION WITH

  THE RESPECTIVE VESSELS PLAINLY BELIED ANY INVOLVEMENT OF THEIR

  PART WITH THE SHIPS'  'INTERNAL DISCIPLINE AND ORDER.' 

  APPLICATION OF UNITED STATES LAW TO RESOLVE A DISPUTE OVER THE

  WAGES PAID THE MEN FOR THEIR LONGSHORE WORK, ACCORDINGLY, WOULD

  HAVE THREATENED NO INTERFERENCE IN THE INTERNAL AFFAIRS OF

  FOREIGN-FLAG SHIPS LIKELY TO LEAD TO CONFLICT WITH FOREIGN OR

  INTERNATIONAL LAW.  WE THEREFORE FIND THAT THESE LONGSHORE

  OPERATIONS WERE IN 'COMMERCE' WITHIN THE MEANING OF 2(6), AND

  THUS MIGHT HAVE BEEN SUBJECT TO THE REGULATORY POWER OF THE

  NATIONAL LABOR RELATIONS BOARD."  ID., AT 200. 

THUS, THE ONLY APPROPRIATE ISSUE IN THE INSTANT CASE IS WHETHER NLRB
COGNIZANCE OF RESPONDENTS' PICKETING WOULD REQUIRE THAT THE BOARD
INQUIRE INTO THE "INTERNAL DISCIPLINE AND ORDER" OF FOREIGN VESSELS,
AND THUS THREATEN "INTERFERENCE IN THE INTERNAL AFFAIRS OF FOREIGN-FLAG
SHIPS LIKELY TO LEAD TO CONFLICT WITH FOREIGN OR INTERNATIONAL LAW." 
TESTED BY THAT PRINCIPLE, I CONCLUDE, CONTRARY TO THE COURT, THAT THIS
CASE FALLS UNDER ARIADNE RATHER THAN UNDER BENZ.     ARIADNE IS THE
CONTROLLING PRECEDENT EVEN IF THE COURT IS CORRECT THAT THIS DISPUTE
"COULD NOT BE ACCOMMODATED BY A WAGE DECISION ON THE PART OF THE
SHIPOWNERS WHICH WOULD AFFECT ONLY WAGES PAID WITHIN THIS COUNTRY." 
ANTE, AT 114.  FOR RESPONDENTS' PICKETING IS NOT DIRECTED AT FORCING
THE SHIPOWNER TO MAKE THAT OR ANY OTHER ACCOMMODATION THAT COULD BE
CHARACTERIZED AS INTERFERENCE WITH RELATIONS BETWEEN CREW AND
SHIPOWNERS.  RESPONDENTS'  TARGET IS TO PERSUADE SHIPPERS NOT TO
PATRONIZE FOREIGN VESSELS, AND RESPONDENTS HAVE NO CONCERN WITH THE
FORM OF THE SHIPOWNER'S RESPONSE THAT MAKES THEIR EFFORTS SUCCEED. 
/6/ 

SIMILARLY, ARIADNE IS THE CONTROLLING PRECEDENT EVEN IF THE COURT IS
RIGHT THAT "(VIRTUALLY NONE OF THE PREDICTABLE RESPONSES OF A FOREIGN
SHIPOWNER TO PICKETING OF THIS TYPE . . . WOULD BE LIMITED TO THE SORT
OF WAGE-COST DECISION BENEFITING AMERICAN WORKINGMEN WHICH THE LMRA (AS
IT AMENDED THE NLRA) WAS DESIGNED TO REGULATE."  ANTE, AT 115.  THE
QUESTION WHETHER THIS CASE FALLS WITHIN THE BOARD'S JURISDICTION DOES
NOT TURN ON THE "PREDICTABLE RESPONSES" OF THE FOREIGN SHIPOWNER BUT,
UNDER OUR CASES FROM BENZ TO ARIADNE, SOLELY ON THE QUESTION WHETHER
COGNIZANCE OF RESPONDENTS' ACTIVITY WOULD INVOLVE THE BOARD IN AN
EXAMINATION INTO THE INTERNAL RELATIONS BETWEEN THE FOREIGN CREWS AND
SHIPOWNERS.  COGNIZANCE OF RESPONDENTS' CONDUCT IN THIS CASE WOULD NOT
APPEAR TO REQUIRE THAT INQUIRY.  IN ANY EVENT, AS THE TEXAS COURT OF
CIVIL APPEALS CORRECTLY OBSERVED, IT SUFFICES FOR BOARD JURISDICTION OF
THAT CONDUCT THAT IT IS ARGUABLE WHETHER THAT INQUIRY IS REQUIRED, FOR
IN SUCH CASE IT IS FOR THE BOARD TO DETERMINE IN THE FIRST INSTANCE
WHETHER THAT CONDUCT INVOLVES A LABOR DISPUTE WITHIN ITS COGNIZANCE. 
SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959). 

BUT MY DISAGREEMENT WITH THE COURT DOES NOT REST ALONE ON ITS
FAILURE ADEQUATELY TO RATIONALIZE AND DISTINGUISH THE CASE LAW.  AS THE
COURT STATES, THE NATION'S LABOR LAWS MUST BE READ IN LIGHT OF THE
LONGSTANDING INVOLVEMENT OF CONGRESS WITH MARITIME AFFAIRS.  IF THAT
INVOLVEMENT IS EXAMINED, HOWEVER, IT WILL DEMONSTRATE THAT, BEGINNING
WITH ITS FIRST SESSION, 1 STAT. 55, CONGRESS HAS BEEN DEEPLY ENGAGED IN
LEGISLATING TO PROTECT AMERICAN VESSELS FROM COMPETITION, USUALLY BY
ENACTING DISCRIMINATORY LAWS AGAINST FOREIGN-FLAG VESSELS.  MYRIAD
HEARINGS AND REPORTS REFLECT CONGRESSIONAL DETERMINATION THAT THE
AMERICAN MERCHANT MARINE, LARGELY BECAUSE OF PROTECTIONS AFFORDED
AMERICAN SEAMEN'S WAGES AND WORKING CONDITIONS IN COLLECTIVE BARGAINING
FOSTERED BY THE NATIONAL LABOR RELATIONS ACT, SHALL HAVE LEGISLATIVE
HELP TO SUPPORT ITS EFFORTS TO COMPETE ON EQUAL TERMS FOR A SHARE OF
OUR FOREIGN COMMERCE.  /7/ 

THIS CONGRESSIONAL SUPPORT WAS HIGHLIGHTED AS RECENTLY AS 1970, IN
AMENDMENTS TO THE MERCHANT MARINE ACT, 1936, 46 U.S.C. 1101 ET SEQ., TO
WHICH WE MAY LOOK WITH PROFIT.  THE DECLARATION OF POLICY OF THAT ACT,
AS AMENDED IN 1970, STATES AS ITS PURPOSE THAT "(IT IS NECESSARY FOR
THE NATIONAL DEFENSE AND DEVELOPMENT OF (THE UNITED STATES') FOREIGN
AND DOMESTIC COMMERCE THAT THE UNITED STATES SHALL HAVE A MERCHANT
MARINE (A) SUFFICIENT TO CARRY ITS DOMESTIC WATER-BORNE COMMERCE AND A
SUBSTANTIAL PORTION OF THE WATER-BORNE EXPORT AND IMPORT FOREIGN
COMMERCE OF THE UNITED STATES . . ."  THAT MERCHANT MARINE IS FURTHER
TO BE "OWNED AND OPERATED UNDER THE UNITED STATES FLAG BY CITIZENS OF
THE UNITED STATES, INSOFAR AS MAY BE PRACTICABLE," AND IS TO BE "MANNED
WITH A TRAINED AND EFFICIENT CITIZEN PERSONNEL."  46 U.S.C. 1101.  SEE
ALSO MERCHANT MARINE ACT, 1920, 46 U.S.C. 861.  THE 1936 ACT FURTHERS
THOSE AIMS BY PROVIDING SUBSIDIES FOR THE CONSTRUCTION AND OPERATION OF
AMERICAN-FLAG SHIPPING, 46 U.S.C. 1151, 1171, AND GOES FAR IN IMPOSING
DISCRIMINATIONS AGAINST FOREIGN-FLAG SHIPPING IN REGARD TO CERTAIN
TYPES OF FREIGHT.  46 U.S.C. 1241.  SEE ALSO 46 U.S.C. 251, 808
(RESTRICTING COASTWISE TRADE).  FAR FROM CONDUCT IN CONFLICT WITH
CONGRESS' LEGISLATIVE POLICIES IN THE MARITIME FIELD, RESPONDENTS'
PICKETING SEEKS PRECISELY THE SAME GOALS. 

YET THE COURT, ALTHOUGH NOT REMOTELY SUGGESTING THAT RESPONDENTS'
PICKETING CONSTITUTES AN ILLEGAL INTRUSTION BY PRIVATE CITIZENS INTO
FOREIGN AFFAIRS, REACHES A CONCLUSION THAT NECESSARILY IMPLIES THAT
CONGRESS WAS CONTENT TO LEAVE THE WHOLE PROBLEM TO RESOLUTION BY THE
STATES.  IT IS INCONCEIVABLE THAT CONGRESS MEANT TO LEAVE REGULATION OF
ACTIVITY IN THIS AREA OF PREDOMINANTLY NATIONAL CONCERN TO DISPARATE
STATE LAWS REFLECTING PAROCHIAL INTERESTS. 

I WOULD AFFIRM THE JUDGMENT OF THE TEXAS COURT OF CIVIL APPEALS. 

/1/  SEE NLRB V. FRUIT & VEGETABLE PACKERS, 377 U.S. 58 (1964); ID.,
AT 76 (BLACK, J., CONCURRING); THORNHILL V. ALABAMA, 310 U.S. 88
(1940). 

/2/  SEE S. REP. NO. 91 - 1080, P. 16 (1970).  SEE ALSO ID., AT 17
(CHART 7:  PROJECTED DECLINE IN SEAFARING JOB OPPORTUNITIES IN FOREIGN
TRADE FLEET FROM 1969 TO 1980). 

/3/  THOSE MEAGER MATERIALS TO BE FOUND IN THE CONGRESSIONAL DEBATES
CONCERNING THE LABOR MANAGEMENT RELATIONS ACT CONTRADICT THE NOTION
THAT CONGRESS MEANT TO DISTINGUISH AMONG AMERICAN WORKINGMEN FOR
PURPOSES OF DEFINING THE BOARD'S JURISDICTION OVER LABOR DISPUTES
AFFECTING COMMERCE.  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS., 4
(1947), DISCUSSED IN BENZ V. COMPANIA NAVIERA HIDALGO, 353 U.S. 138,
142 - 144 (1957).  SEE ALSO LONGSHOREMEN V. ARIADNE CO., 397 U.S. 195,
198 - 199 (1970). 

/4/  THUS, THE COURT REFUSED TO MAKE THAT DISTINCTION EVEN WHERE THE
LANGUAGE OF THE ACT MIGHT HAVE BEEN READ AS INDICATING THAT CONGRESS
MEANT TO DRAW IT.  IN TEAMSTERS V. NEW YORK, N. H. & H. R. CO., 350
U.S. 155 (1956), A UNION ENGAGED IN THE OVER-THE-ROAD TRUCKING OF
FREIGHT PICKETED A RAILROAD LOADING YARD TO PROTEST THE "PIGGY-BACKING"
OF TRUCK TRAILERS ON RAILROAD CARS THAT WAS CURTAILING THEIR
OPPORTUNITIES FOR EMPLOYMENT.  THE RAILROAD, SUBJECT TO THE RAILWAY
LABOR ACT, 45 U.S.C. 151, WAS A "PERSON"  EXEMPTED FROM THE NLRA'S
DEFINITION OF "EMPLOYER."  29 U.S.C. 152(2). 

NONETHELESS, THE COURT RELIED UPON THE FINDING OF THE LOWER COURT
THAT THE "UNION WAS IN NO WAY CONCERNED WITH (THE RAILROAD'S) LABOR
POLICY,"  AND HELD THAT THE DISPUTE WAS SUBJECT TO THE JURSIDICTION OF
THE NATIONAL LABOR RELATIONS BOARD.  THE COURT SAID: "THIS
INTERPRETATION PERMITS THE HARMONIOUS EFFECTUATION OF THREE DISTINCT
CONGRESSIONAL OBJECTIVES:  (1) TO PROVIDE ORDERLY AND PEACEFUL
PROCEDURES FOR PROTECTING THE RIGHTS OF EMPLOYERS, EMPLOYEES AND THE
PUBLIC IN LABOR DISPUTES SO AS TO PROMOTE THE FULL, FREE FLOW OF
COMMERCE, AS EXPRESSED IN 1(B) OF THE LABOR MANAGEMENT RELATIONS ACT;
(2) TO MAINTAIN THE TRADITIONAL SEPARATE TREATMENT OF EMPLOYER-EMPLOYEE
RELATIONSHIPS OF RAILROADS SUBJECT TO THE RAILWAY LABOR ACT; AND (3) TO
MINIMIZE 'DIVERSITIES AND CONFLICTS LIKELY TO RESULT FROM A VARIETY OF
LOCAL PROCEDURES AND ATTITUDES TOWARD LABOR CONTROVERSIES.'  GARNER V.
TEAMSTERS UNION, 346 U.S. 485, 490."  350 U.S., AT 160 - 161. 

IN CONTRAST, THERE IS NO WORDING IN THE STATUTE, OR ANY LEGISLATIVE
HISTORY, SUPPORTING A READING THAT CONGRESS MEANT TO DRAW THAT LINE AS
TO SEAMEN. 

/5/  SEE BENZ V. COMPANIA NAVIERA HIDALGO, SUPRA, AT 142: 

"IT IS BEYOND QUESTION THAT A SHIP VOLUNTARILY ENTERING THE
TERRITORIAL LIMITS OF ANOTHER COUNTRY SUBJECTS ITSELF TO THE LAWS AND
JURISDICTION OF THAT COUNTRY.  WILDENHUS'S CASE, 120 U.S. 1 (1887) . .
.  IT FOLLOWS THAT IF CONGRESS HAD SO CHOSEN, IT COULD HAVE MADE THE
ACT APPLICABLE TO WAGE DISPUTES ARISING ON FOREIGN VESSELS BETWEEN
NATIONALS OR OTHER COUNTRIES WHEN THE VESSEL COMES WITHIN OUR
TERRITORIAL WATERS." 

/6/  THE PICKET SIGNS WERE NOT DIRECTED TO IMPROVEMENT OF THE
FOREIGN CREW'S WAGES AND WORKING CONDITIONS.  THE PROTEST WAS CAREFULLY
PHRASED TO APPEAL TO SHIPPERS NOT TO PATRONIZE THE FOREIGN SHIPS
BECAUSE PAYMENT OF WAGES "SUBSTANDARD TO THOSE OF AMERICAN SEAMEN . . .
RESULTS IN EXTREME DAMAGE TO OUR WAGE STANDARDS AND LOSS OF OUR JOBS." 
THUS, COGNIZANCE OF THE DISPUTE TO DETERMINE THE LEGALITY OF THE
PICKETING AS AN UNFAIR LABOR PRACTICE NEED NOT INVOLVE THE BOARD IN AN
INQUIRY WHETHER THE PICKETING CALLED FOR AN EMPLOYER RESPONSE IN THE
FORM OF AN INCREASE IN THE CREW'S WAGES.  THIS WOULD NOT OF COURSE MEAN
THAT RESPONDENTS WOULD PREVAIL ON THE MERITS.  THERE MAY WELL BE A
QUESTION, FOR EXAMPLE, WHETHER THE PICKETING FALLS WITHIN THE BAN OF
8(B)(7) AS PROHIBITED RECOGNITIONAL PICKETING.  SEE ROSEN, AREA
STANDARDS PICKETING, 23 LAB.  L. J. 67 (1972); NOTE, PICKETING FOR AREA
STANDARDS:  AN EXCEPTION TO SECTION 8(B)(7), 1968 DUKE L. J. 767. 

/7/  SEE.  E.G., H.R. REP. NO. 91 - 1073 (1970); S. REP. NO. 91 -
1080 (1970); HEARINGS ON H.R. 12324 AND H.R. 12569 BEFORE THE
SUBCOMMITTEE ON MERCHANT MARINE OF THE HOUSE COMMITTEE ON MERCHANT
MARINE & FISHERIES, 92D CONG., 2D SESS. (1972) (CARGO FOR AMERICAN
SHIPS); HEARING ON H.R. 15424, H.R. 15425, AND H.R. 15640 BEFORE THE
SUBCOMMITTEE ON MERCHANT MARINE OF THE HOUSE COMMITTEE ON MERCHANT
MARINE & FISHERIES, 91ST CONG., 2D SESS. (1970) (PRESIDENT'S MARITIME
PROGRAM, PT. 2); HEARINGS ON S. 3287 BEFORE THE MERCHANT MARINE
SUBCOMMITTEE OF THE SENATE COMMITTEE ON COMMERCE, 91ST CONG., 2D SESS.
(1970) (THE MARITIME PROGRAM); HEARINGS ON H.R. 1897, H.R. 2004, AND
H.R. 2331 BEFORE THE HOUSE COMMITTEE ON MERCHANT MARINE & FISHERIES,
88TH CONG., 1ST SESS. (1963) (MARITIME LABOR LEGISLATION). 

ROBERT S. OGDEN, JR., ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WERE JAMES V. HAYES AND JOSEPH E. FORTENBERRY. 

HOWARD SCHULMAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS W. ARTHUR COMBS. 
..END :






PHILLIPS PETROLEUM V. TEXACO, 415 U.S. 125 


       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT

       NO. 73 - 347.  DECIDED FEBRUARY 19, 1974; CERTIORARI

           GRANTED; 481 F.2D 70, REVERSED. 


    RESPONDENT, RELYING FOR FEDERAL JURISDICTION ON 28 U.S.C. PARA.

  1331(A), BROUGHT THIS ACTION IN DISTRICT COURT FOR THE REASONABLE

  VALUE OF HELIUM BEYOND WHAT PETITIONER HAD ALREADY PAID

  RESPONDENT FOR NATURAL GAS UNDER THE SALES CONTRACT.  THE

  DISTRICT COURT GRANTED PETITIONER'S MOTION TO DISMISS FOR LACK OF

  FEDERAL JURISDICTION.  THE COURT OF APPEALS REVERSED ON THE BASIS

  OF ITS DECISION IN NORTHERN NATURAL GAS CO. V. GROUNDS, 441 F.2D

  704, A FEDERAL INTERPLEADER ACTION, IN WHICH THE COURT FOUND THAT

  THE STATUTORY PROVISIONS IN THE HELIUM ACT AMENDMENTS OF 1960 AND

  THE NATURAL GAS ACT DO NOT APPLY TO A SALE OF COMMINGLED HELIUM

  AS A COMPONENT OF THE NATURAL GAS STREAM AND THAT NATURAL GAS

  RATES AUTHORIZED BY THE FEDERAL POWER COMMISSION WOULD THUS NOT

  BAR THE SELLER FROM RECOVERING THE REASONABLE VALUE OF THE HELIUM

  CONSTITUENT.  HELD:  RESPONDENT'S SUIT IS IN EFFECT AN ACTION IN

  QUANTUM MERUIT, WHOSE SOURCE IS STATE AND NOT FEDERAL LAW.  UNDER

THE GROUNDS DECISION, SUPRA, THOSE FEDERAL STATUTORY PROVISIONS

  DO NOT CREATE A FEDERAL RIGHT OF RECOVERY BUT ONLY PRECLUDE

  INTERPOSITION OF A PLEA OF PAYMENT TO DEFEAT A QUASI-CONTRACTUAL

  SUIT FOR THE HELIUM CONSTITUENT, WHICH IS INSUFFICIENT TO SUPPORT

  FEDERAL JURISDICTION UNDER 28 U.S.C. PARA. 1331(A).  GULLY V.

  FIRST NATIONAL BANK, 299 U.S. 109, 113. 

PER CURIAM. 

THE RESPONDENT, TEXACO, BROUGHT THIS ACTION AGAINST THE PETITIONER,
PHILLIPS PETROLEUM CO., IN THE NORTHERN DISTRICT OF OKLAHOMA.  THE
COMPLAINT ASSERTED THAT TEXACO HAD NOT BEEN COMPENSATED FOR THE HELIUM
CONSTITUENT OF NATURAL GAS SOLD BY TEXACO TO PHILLIPS.  TEXACO CLAIMED
IT WAS ENTITLED TO THE REASONABLE VALUE OF THIS HELIUM IN ADDITION TO
THE SUMS ALREADY PAID BY PHILLIPS FOR THE NATURAL GAS UNDER THE
CONTRACT OF SALE.  IT IS CONCEDED THAT THERE IS NO DIVERSITY OF
CITIZENSHIP BETWEEN THE PARTIES.  ACCORDINGLY, TEXACO RELIED, AS THE
BASIS FOR FEDERAL JURISDICTION, ON 28 U.S.C. PARA. 1331(A), ASSERTING
THAT ITS CLAIM "(AROSE) UNDER THE CONSTITUTION, LAWS, OR TREATIES OF
THE UNITED STATES."  PHILLIPS MOVED TO DISMISS FOR WANT OF FEDERAL
JURISDICTION OF THE SUBJECT MATTER.  THE DISTRICT COURT GRANTED THIS
MOTION, AND TEXACO APPEALED TO THE COURT OF APPEALS FOR THE TENTH
CIRCUIT, WHICH BY A DIVIDED VOTE REVERSED THE DISTRICT COURT'S
DETERMINATION THAT FEDERAL JURISDICTION WAS LACKING.  PHILLIPS SEEKS
CERTIORARI TO REVIEW THE TENTH CIRCUIT'S DECISION AND CONTENDS THAT
PAST DECISIONS OF THIS COURT MAKE CLEAR THAT TEXACO'S CLAIM CANNOT BE
SAID TO "ARISE) UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE UNITED
STATES." 

THE SUBSTANTIVE CLAIM IN THIS CASE IS AN OUTGROWTH OF AN EARLIER
DECISION OF THE TENTH CIRCUIT, NORTHERN NATURAL GAS CO. V. GROUNDS, 441
F.2D 704 (1971).  THAT WAS A FEDERAL INTERPLEADER ACTION, IN WHICH THE
COURT OF APPEALS HELD THAT LESSEE-PRODUCERS OF NATURAL GAS COULD
RECOVER THE REASONABLE VALUE OF HELIUM CONTAINED IN THE GAS THAT THEY
PRODUCED AND SOLD TO PIPELINE COMPANIES, WHICH LATER EXTRACTED AND
MARKETED THE HELIEM.  THE ESSENCE OF THE GROUNDS DECISION WAS ITS
REJECTION OF THE BUYER'S CONTENTION THAT THE CONTRACT PRICE PAID FOR
THE NATURAL GAS WAS COMPENSATION FOR "THE GAS STREAM IN ITS ENTIRETY
AND, ABSENT AN EXPRESS RESERVATION, (THAT) THE BUYER GETS THE WHOLE
STREAM FOR SUCH PURPOSES AS IT MAY DETERMINE."  /1/  ID., AT 720.  THE
COURT OF APPEALS REASONED THAT, AS A RESULT OF THE HELIUM ACT
AMENDMENTS OF 1960, 74 STAT. 922, WHICH ADDED PARA. 11 (50 U.S.C. PARA.
167I) TO THE HELIUM CONSERVATION ACT, 43 STAT. 1110, "THE NATURAL GAS
ACT, THE THE FPC FIXED SERVICE RATES DO NOT APPLY" TO "(A) SALE OF THE
COMMINGLED HELIUM AS A COMPONENT OF THE (NATURAL) GAS STREAM."  441
F.2D, AT 721.  ACCORDINGLY, THE COURT OF APPEALS CONCLUDED THAT "THE
RECONCILIATION OF THE NATURAL GAS ACT AND OF THE 1960 AMENDMENTS TO THE
HELIUM ACT . . . REQUIRES THE CONCLUSION THAT THE FPC SERVICE RATES DO
NOT APPLY TO DENY RECOVERY FOR THE CONTAINED HELIUM" IN THE NATURAL GAS
STREAM SOLD BY THE LESSEE-PRODUCERS.  THE COURT WENT ON TO HOLD THAT
THE LESSEE-PRODUCERS COULD THEREFORE RECOVER "THE REASONABLE VALUE OF
THE HELIUM CONTENT OF THE PROCESSED GAS."  ID., AT 723.  (EMPHASIS
ADDED.) 

BECAUSE OF THE PRESENCE OF FEDERAL INTERPLEADER JURISDICTION, THE
COURT IN GROUNDS DID NOT CONSIDER WHETHER THERE EXISTED AN INDEPENDENT
BASIS FOR THE EXERCISE OF FEDERAL JURISDICTION.  TEXACO CONTENDS THAT
THE COURT OF APPEALS IN GROUNDS READ THE NATURAL GAS ACT AND PARA. 11
OF THE HELIUM CONSERVATION ACT TOGETHER TO IMPLY A FEDERAL CAUSE OF
ACTION FOR THE RECOVERY OF THE REASONABLE VALUE OF THE HELIUM
CONSTITUENT IN NATURAL GAS.  ON THE OTHER HAND, PHILLIPS' POSITION IS
THAT GROUNDS HELD ONLY THAT THE EFFECT OF THESE FEDERAL STATUTORY
PROVISIONS IS TO PRECLUDE THE DEFENSE OF PAYMENT TO A QUASI-CONTRACTUAL
ACTION BROUGHT FOR THE RECOVERY OF THE REASONABLE VALUE OF THE HELIUM. 
HENCE, PHILLIPS ARGUES THAT THE FEDERAL QUESTIONS RAISED IN THE
COMPLAINT ARE NOT PART OF TEXACO'S CLAIM BUT ARE MERELY ASSERTED IN
ANTICIPATION OF A PROBABLE DEFENSE BY PHILLIPS. 

THIS COURT HAS REPEATEDLY HELD THAT, IN ORDER FOR A CLAIM TO ARISE
"UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES," "A
RIGHT OR IMMUNITY CREATED BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES MUST BE AN ELEMENT, AND AN ESSENTIAL ONE, OF THE PLAINTIFF'S
CAUSE OF ACTION."  GULLY V. FIRST NATIONAL BANK, 299 U.S. 109, 112
(1936).  THE FEDERAL QUESTIONS "MUST BE DISCLOSED UPON THE FACE OF THE
COMPLAINT, UNAIDED BY THE ANSWER."  MOREOVER, "THE COMPLAINT ITSELF
WILL NOT AVAIL AS A BASIS OF JURISDICTION IN SO FAR AS IT GOES BEYOND A
STATEMENT OF THE PLAINTIFF'S CAUSE OF ACTION AND ANTICIPATES OR REPLIES
TO A PROBABLE DEFENSE."  GULLY, SUPRA, AT 113.  SEE ALSO METCALF V.
WATERTOWN, 128 U.S. 586 (1888); TENNESSEE V. UNION & PLANTERS' BANK,
152 U.S. 454 (1894); LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY, 211 U.S.
149 (1908); TAYLOR V. ANDERSON 234 U.S. 74 (1914); SKELLY OIL CO. V.
PHILLIPS PETROLEUM CO., 339 U.S. 667 (1950). 

THE GROUNDS CASE CANNOT PROPERLY BE READ AS CREATING A FEDERAL CAUSE
OF ACTION, DERIVING FROM THE NATURAL GAS ACT AND PARA. 11 OF THE HELIUM
CONSERVATION ACT, FOR THE RECOVERY OF THE REASONABLE VALUE OF HELIUM
CONTAINED IN NATURAL GAS SOLD AT RATES SANCTIONED BY THE FEDERAL POWER
COMMISSION.  INDEED, IN COMMENTING ON ITS EARLIER GROUNDS DECISION, THE
COURT OF APPEALS IN THE PRESENT CASE CONCLUDED THAT "SATISFACTORY
UTILITY REGULATION DOES NOT PERMIT A UTILITY RATE TO BE USED TO OBTAIN
A COMMODITY WHICH IS NOT WITHIN THE CONTEMPLATION OF THAT RATE."  481
F.2D 70, 73.  IN OTHER WORDS, THE GROUNDS CASE SIMPLY HELD THAT PAYMENT
FOR NATURAL GAS AT RATES ESTABLISHED OR PERMITTED BY THE COMMISSION
UNDER THE AUTHORITY OF THE NATURAL GAS ACT WILL NOT BE REGARDED AS
PAYMENT FOR THE HELIUM CONSTITUENT AND CANNOT BE ASSERTED AS A DEFENSE
TO A SUIT FOR THE RECOVERY OF THE VALUE OF THAT HELIUM.  IN SHORT, THE
FEDERAL STATUTORY PROVISIONS DO NOT UNDER GROUNDS CREATE A FEDERAL
RIGHT OF RECOVERY, BUT ONLY PRECLUDE THE INTERPOSITION OF A PLEA OF
PAYMENT TO DEFEAT A QUASI-CONTRACTUAL SUIT FOR THE VALUE OF THE
HELIUM.  /2/ 

TEXACO'S SUIT FOR THE REASONABLE VALUE OF THE HELIUM IS, IN EFFECT,
AN ACTION IN QUANTUM MERUIT, WHOSE SOURCE IS STATE LAW AND NOT FEDERAL
LAW.  CF. ONEIDA INDIAN NATION V. COUNTY OF ONEIDA, 414 U.S. 661
(1974).  TO THE EXTENT THAT THE NATURAL GAS ACT AND THE 1960 HELIUM ACT
AMENDMENTS MAY BEAR ON THIS ACTION FOR THE RECOVERY OF THE REASONABLE
VALUE OF CONSTITUENT HELIUM IN NATURAL GAS, IT IS CLEAR THAT THEIR
EFFECT IS NO MORE THAN TO OVERCOME A POTENTIAL DEFENSE TO THE ACTION. 
UNDER THE SETTLED PRECEDENT OF OUR PAST DECISIONS NOTED ABOVE.  IT THUS
CANNOT BE SAID THAT THIS SUIT "ARISES UNDER THE CONSTITUTION, LAWS, OR
TREATIES OF THE UNITED STATES."  ACCORDINGLY, THERE IS NO FEDERAL
JURISDICTION UNDER 28 U.S.C. PARA. 1331(A). 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, AND THE JUDGMENT
OF THE COURT OF APPEALS IS REVERSED. 

/1/  THE PRICE PAID HERE WAS IN ACCORDANCE WITH RATES SANCTIONED BY
THE FEDERAL POWER COMMISSION, WHICH HAS AUTHORITY TO ESTABLISH SUCH
RATES UNDER THE NATURAL GAS ACT OF 1938, 52 STAT. 821, 15 U.S.C. PARAS.
717 - 717W. 

/2/  TEXACO HAS NOT POINTED TO ANY LANGUAGE EITHER IN THE NATURAL
GAS ACT AND THE 1960 HELIUM ACT AMENDMENTS OR IN THE LEGISLATIVE
HISTORY OF THESE ENACTMENTS THAT COULD BE READ TO CREATE A FEDERAL
CAUSE OF ACTION FOR THE RECOVERY OF THE REASONABLE VALUE OF THE HELIUM
UNDER THE CIRCUMSTANCES OF THIS CASE. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN DISSENT FROM THE SUMMARY
DISPOSITION OF THIS CASE WITHOUT FULL BRIEFING AND ORAL ARGUMENT.  THEY
WOULD GRANT THE PETITION AND SET THE CASE FOR ORAL ARGUMENT. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




LAU V. NICHOLS, 414 U.S. 563 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 72 - 6520.  ARGUED DECEMBER 10, 1973--DECIDED JANUARY

           21, 1974; 483 F.2D 791, REVERSED AND REMANDED. 


    THE FAILURE OF THE SAN FRANCISCO SCHOOL SYSTEM TO PROVIDE

  ENGLISH LANGUAGE INSTRUCTION TO APPROXIMATELY 1,800 STUDENTS OF

  CHINESE ANCESTRY WHO DO NOT SPEAK ENGLISH, OR TO PROVIDE THEM

  WITH OTHER ADEQUATE INSTRUCTIONAL PROCEDURES, DENIES THEM A

  MEANINGFUL OPPORTUNITY TO PARTICIPATE IN THE PUBLIC EDUCATIONAL

  PROGRAM AND THUS VIOLATES 601 OF THE CIVIL RIGHTS ACT OF 1964,

  WHICH BANS DISCRIMINATION BASED "ON THE GROUND OF RACE, COLOR, OR

  NATIONAL ORIGIN," IN "ANY PROGRAM OR ACTIVITY RECEIVING FEDERAL

  FINANCIAL ASSISTANCE," AND THE IMPLEMENTING REGULATIONS OF THE

  DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.  PP. 565 - 569. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
MARSHALL, POWELL, AND REHNQUIST, JJ., JOINED.  STEWART, J., FILED AN
OPINION CONCURRING IN THE RESULT, IN WHICH BURGER, C. J., AND BLACKMUN,
J., JOINED, POST, P. 569.  WHITE, J., CONCURRED IN THE RESULT. 
BLACKMUN, J., FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH
BURGER, C. J., JOINED, POST, P. 571. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SAN FRANCISCO, CALIFORNIA, SCHOOL SYSTEM WAS INTEGRATED IN 1971
AS A RESULT OF A FEDERAL COURT DECREE, 339 F.SUPP.  1315.  SEE LEE V.
JOHNSON, 404 U.S. 1215.  THE DISTRICT COURT FOUND THAT THERE ARE 2,856
STUDENTS OF CHINESE ANCESTRY IN THE SCHOOL SYSTEM WHO DO NOT SPEAK
ENGLISH.  OF THOSE WHO HAVE THAT LANGUAGE DEFICIENCY, ABOUT 1,000 ARE
GIVEN SUPPLEMENTAL COURSES IN THE ENGLISH LANGUAGE.  /1/  ABOUT 1,800
HOWEVER, DO NOT RECEIVE THAT INSTRUCTION. 

THIS CLASS SUIT BROUGHT BY NON-ENGLISH-SPEAKING CHINESE STUDENTS
AGAINST OFFICIALS RESPONSIBLE FOR THE OPERATION OF THE SAN FRANCISCO
UNIFIED SCHOOL DISTRICT SEEKS RELIEF AGAINST THE UNEQUAL EDUCATIONAL
OPPORTUNITIES, WHICH ARE ALLEGED TO VIOLATE, INTER ALIA, THE FOURTEENTH
AMENDMENT.  NO SPECIFIC REMEDY IS URGED UPON US.  TEACHING ENGLISH TO
THE STUDENTS OF CHINESE ANCESTRY WHO DO NOT SPEAK THE LANGUAGE IS ONE
CHOICE.  GIVING INSTRUCTIONS TO THIS GROUP IN CHINESE IS ANOTHER. 
THERE MAY BE OTHERS.  PETITIONERS ASK ONLY THAT THE BOARD OF EDUCATION
BE DIRECTED TO APPLY ITS EXPERTISE TO THE PROBLEM AND RECTIFY THE
SITUATION. 

THE DISTRICT COURT DENIED RELIEF.  THE COURT OF APPEALS AFFIRMED,
HOLDING THAT THERE WAS NO VIOLATION OF THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT OR OF 601 OF THE CIVIL RIGHTS ACT OF 1964, 78
STAT. 252, 42 U.S.C. 2000D, WHICH EXCLUDES FROM PARTICIPATION IN
FEDERAL FINANCIAL ASSISTANCE, RECIPIENTS OF AID WHICH DISCRIMINATE
AGAINST RACIAL GROUPS, 483 F.2D 791.  ONE JUDGE DISSENTED.  A HEARING
EN BANC WAS DENIED, TWO JUDGES DISSENTING.  ID., AT 805. 

WE GRANTED THE PETITION FOR CERTIORARI BECAUSE OF THE BRINGS TO THE
STARTING LINE OF HIS EDUCATIONAL CAREER DIFFERENT ADVANTAGES AND
DISADVANTAGES CAUSED IN PART BY SOCIAL, ECONOMIC AND CULTURAL
BACKGROUND, CREATED AND CONTINUED COMPLETELY APART FROM ANY
CONTRIBUTION BY THE SCHOOL SYSTEM," 483 F.2D, AT 797.  YET IN OUR VIEW
THE CASE MAY NOT BE SO EASILY DECIDED.  THIS IS A PUBLIC SCHOOL SYSTEM
OF CALIFORNIA AND 71 OF THE CALIFORNIA EDUCATION CODE STATES THAT
"ENGLISH SHALL BE THE BASIC LANGUAGE OF INSTRUCTION IN ALL SCHOOLS." 
THAT SECTION PERMITS A SCHOOL DISTRICT TO DETERMINE "WHEN AND UNDER
WHAT CIRCUMSTANCES INSTRUCTION MAY BE GIVEN BILINGUALLY."  THAT SECTION
ALSO STATES AS "THE POLICY OF THE STATE" TO INSURE "THE MASTERY OF
ENGLISH BY ALL PUPILS IN THE SCHOOLS."  AND BILINGUAL INSTRUCTION IS
AUTHORIZED "TO THE EXTENT THAT IT DOES NOT INTERFERE WITH THE
SYSTEMATIC, SEQUENTIAL, AND REGUALR INSTRUCTION OF ALL PUPILS IN THE
ENGLISH LANGUAGE." 

MOREOVER, 8573 OF THE EDUCATION CODE PROVIDES THAT NO PUPIL SHALL
RECEIVE A DIPLOMA OF GRADUATION FROM GRADE 12 WHO HAS NOT MET THE
STANDARDS OF PROFICIENCY IN "ENGLISH," AS WELL AS OTHER PRESCRIBED
SUBJECTS.  MOREOVER, BY 12101 OF THE EDUCATION CODE CHILDREN BETWEEN
THE AGES OF SIX AND 16 YEARS ARE (WITH EXCEPTIONS NOT METERIAL HERE)
"SUBJECT TO COMPULSORY FULL-TIME EDUCATION."  (SUPP. 1973.) 

UNDER THESE STATE-IMPOSED STANDARDS THERE IS NO EQUALITY OF
TREATMENT MERELY BY PROVIDING STUDENTS WITH THE SAME FACILITIES,
TEXTBOOKS, TEACHERS, AND CURRICULUM; FOR STUDENTS WHO DO NOT UNDERSTAND
ENGLISH ARE EFFECTIVELY FORECLOSED FROM ANY MEANINGFUL EDUCATION. 

BASIC ENGLISH SKILLS ARE AT THE VERY CORE OF WHAT THESE PUBLIC
SCHOOLS TEACH.  IMPOSITION OF A REQUIREMENT THAT, BEFORE A CHILD CAN
EFFECTIVELY PARTICIPATE IN THE EDUCATIONAL PROGRAM, HE MUST ALREADY
HAVE ACQUIRED THOSE BASIC SKILLS IS TO MAKE A MOCKERY OF PUBLIC
EDUCATION.  WE KNOW THAT THOSE WHO DO NOT UNDERSTAND ENGLISH ARE
CERTAIN TO FIND THEIR CLASSROOM EXPERIENCES WHOLLY INCOMPREHENSIBLE AND
IN NO WAY MEANINGFUL. 

WE DO NOT REACH THE EQUAL PROTECTION CLAUSE ARGUMENT WHICH HAS BEEN
ADVANCED BUT RELY SOLELY ON 601 OF THE CIVIL RIGHTS ACT OF 1964, 42
U.S.C. 2000D TO REVERSE THE COURT OF APPEALS. 

THAT SECTION BANS DISCRIMINATION BASED "ON THE GROUND OF RACE,
COLOR, OR NATIONAL ORIGIN," IN "ANY PROGRAM OR ACTIVITY RECEIVING
FEDERAL FINANCIAL ASSISTANCE."  THE SCHOOL DISTRICT INVOLVED IN THIS
LITIGATION RECEIVES LARGE AMOUNTS OF FEDERAL FINANCIAL ASSISTANCE.  THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), WHICH HAS AUTHORITY
TO PROMULGATE REGUALTIONS PROHIBITING DISCRIMINATION IN FEDERALLY
ASSISTED SCHOOL SYSTEMS, 42 U.S.C. 2000D -1, IN 1968 ISSUED ONE
GUIDELINE THAT "(SCHOOL SYSTEMS ARE RESPONSIBLE FOR ASSURING THAT
STUDENTS OF A PARTICULAR RACE, COLOR, OR NATIONAL ORIGIN ARE NOT DENIED
THE OPPORTUNITY TO OBTAIN THE EDUCATION GENERALLY OBTAINED BY OTHER
STUDENTS IN THE SYSTEM."  33 FED. REG. 4956.  IN 1970 HEW MADE THE
GUIDELINES MORE SPECIFIC, REQUIRING SCHOOL DISTRICTS THAT WERE
FEDERALLY FUNDED "TO RECTIFY THE LANGUAGE DEFICIENCY IN ORDER TO OPEN "
THE INSTRUCTION TO STUDENTS WHO HAD "LINGUISTIC DEFICIENCIES," 35 FED.
REG. 11595. 

BY 602 OF THE ACT HEW IS AUTHORIZED TO ISSUE RULES, REGUALTIONS, AND
ORDERS /2/  TO MAKE SURE THAT RECIPIENTS OF FEDERAL AID UNDER ITS
JURISDICTION CONDUCT ANY FEDERALLY FINANCED PROJECTS CONSISTENTLY WITH
601.  HEW'S REGULATIONS, 45 CFR 80.3(B)(1), SPECIFY THAT THE RECIPIENTS
MAY NOT: 

     "(II) PROVIDE ANY SERVICE, FINANCIAL AID, OR OTHER BENEFIT TO

  AN INDIVIDUAL WHICH IS DIFFERENT, OR IS PROVIDED IN A DIFFERENT

  MANNER, FROM THAT PROVIDED TO OTHERS UNDER THE PROGRAM; 

"(IV) RESTRICT AN INDIVIDUAL IN ANY WAY IN THE ENJOYMENT OF ANY
ADVANTAGE OR PRIVILEGE ENJOYED BY OTHERS RECEIVING ANY SERVICE,
FINANCIAL AID, OR OTHER BENEFIT UNDER THE PROGRAM." 

DISCRIMINATION AMONG STUDENTS ON ACCOUNT ON RACE ON NATIONAL ORIGIN
THAT IS PROHIBITED INCLUDES "DISCRIMINATION . . .IN THE AVAILABILITY OR
USE OF ANY ACADEMIC . . . OR OTHER FACILITIES OF THE GRANTEE OR OTHER
RECIPIENT."  ID., 80.5(B). 

DISCRIMINATION IS BARRED WHICH HAS THAT EFFECT EVEN THOUGH NO
PURPOSEFUL DESIGN IS PRESENT:  A RECIPIENT "MAY NOT ... UTILIZE
CRITERIA OR METHODS OF ADMINISTRATION WHICH HAVE THE EFFECT OF
SUBJECTING INDIVIDUALS TO DISCRIMINATION" OR HAVE "THE EFFECT OF
DEFEATING OR SUBSTANTIALLY IMPAIRING ACCOMPLISHMENT OF THE OBJECTIVES
OF THE PROGRAM AS RESPECT INDIVIDUALS OF A PARTICULAR RACE, COLOR OR
NATIONAL ORIGIN."  ID., 80.3(B)(2). 

IT SEEMS OBVIOUS THAT THE CHINESE-SPEAKING MINORITY RECEIVES FEWER
BENEFITS THAN THE ENGLISH-SPEAKING MAJORITY FROM RESPONDENTS' SCHOOL
SYSTEM WHICH DENIES THEM A MEANINGFUL OPPORTUNITY TO PARTICIPATE IN THE
EDUCATIONAL PROGRAM--ALL EARMARKS OF THE DISCRIMINATION BANNED BY THE
REGULATIONS.  /3/  IN 1970 HEW ISSUED CLARIFYING GUIDELINES, 35 FED.
REG. 11595, WHICH INCLUDE THE FOLLOWING: 

"WHERE INABILITY TO SPEAK AND UNDERSTAND THE ENGLISH LANGUAGE
EXCLUDES NATIONAL ORIGIN-MINORITY GROUP CHILDREN FROM EFFECTIVE
PARTICIPATION IN THE EDUCATIONAL PROGRAM OFFERED BY A SCHOOL DISTRICT,
THE DISTRICT MUST TAKE AFFIRMATIVE STEPS TO RECTIFY THE LANGUAGE
DEFICIENCY IN ORDER TO OPEN ITS INSTRUCIONAL PROGRAM TO THESE
STUDENTS." 

"ANY ABILITY GROUPING OR TRACKING SYSTEM EMPLOYED BY THE SCHOOL
SYSTEM TO DEAL WITH THE SPECIAL LANGUAGE SKILL NEEDS OF NATIONAL ORIGIN
MINORITY GROUP CHILDREN MUST BE DESIGNED TO MEET SUCH LANGUAGE SKILL
NEEDS AS SOON AS POSSIBLE AND MUST NOT OPERATE AS AN EDUCATIONAL
DEADEND OR PERMANENT TRACK." 

RESPONDENT SCHOOL DISTRICT CONTRACTUALLY AGREED TO "COMPLY WITH
TITLE VI OF THE CIVIL RIGHTS ACT OF 1964.  . .AND ALL REQUIREMENTS
IMPOSED BY OR PURSUANT TO THE REGULATION" OF HEW (45 CFR PT. 80) WHICH
ARE "ISSUED PURSUANT TO THAT TITLE ..."  AND ALSO IMMEDIATELY TO "TAKE
ANY MEASURES NECESSARY TO EFFECTUATE THIS AGREEMENT."  THE FEDERAL
GOVERNMENT HAS POWER TO FIX THE TERMS ON WHICH ITS MONEY ALLOTMENTS TO
THE STATES SHALL BE DISBURSED.  OKLAHOMA V. CSC, 330 U.S. 127, 142 -
143.  WHATEVER MAY BE THE LIMITS OF THAT POWER, STEWARD MACHINE CO. V.
DAVIS, 301 U.S. 548, 590 ET SEQ., THEY HAVE NOT BEEN REACHED HERE. 
SENATOR HUMPHREY, DURING THE FLOOR DEBATES ON THE CIVIL RIGHTS ACT OF
1964, SAID:  /4/ 

"SIMPLE JUSTICE REQUIRES THAT PUBLIC FUNDS, TO WHICH ALL TAXPAYERS
OF ALL RACES CONTRIBUTE, NOT BE SPENT IN ANY FASHION WHICH ENCOURAGES,
ENTRENCHES, SUBSIDIZES, OR RESULTS IN RACIAL DISCRIMINATION." 

WE ACCORDINGLY REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND THE CASE FOR THE FASHIONING OF APPROPRIATE RELIEF. 

              REVERSED AND REMANDED. 

/1/  A REPORT ADOPTED BY THE HUMAN RIGHTS COMMISSION OF SAN
FRANCISCO AND SUBMITTED TO THE COURT BY RESPONDENTS AFTER ORAL ARGUMENT
SHOWS THAT, AS OF APRIL 1973, THERE WERE 3,457 CHINESE STUDENTS IN THE
SCHOOL SYSTEM WHO SPOKE LITTLE OR NO ENGLISH.  THE DOCUMENT FURTHER
SHOWED 2,136 STUDENTS ENROLLED IN CHINESE SPECIAL INSTRUCTION CLASSES,
BUT AT LEAST 429 OF THE ENROLLEES WERE NOT CHINESE BUT WERE INCLUDED
FOR ETHNIC BALANCE.  THUS, AS OF APRIL 1973, NO MORE THAN 1,707 OF THE
3,457 CHINESE STUDENTS NEEDING SPECIAL ENGLISH INSTRUCTION WERE
RECEIVING IT. 

/2/  SECTION 602 PROVIDES: 

"EACH FEDERAL DEPARTMENT AND AGENCY WHICH IS EMPOWERED TO EXTEND
FEDERAL FINANCIAL ASSISTANCE TO ANY PROGRAM OR ACTIVITY, BY WAY OF
GRANT, LOAN, OR CONTRACT OTHER THAN A CONTRACT OF INSURANCE OR
GUARANTY, IS AUTHORIZED AND DIRECTED TO EFFECTUATE THE PROVISIONS OF
ISSUING RULES, REGULATIONS, OR ORDERS OF GENERAL APPLICABILITY WHICH
SHALL BE CONSISTENT WITH ACHIEVEMENT OF THE OBJECTIVES OF THE STATUTE
AUTHORIZING THE FINANCIAL ASSISTANCE IN CONNECTION WITH WHICH THE
ACTION IS TAKEN...."  42 U.S.C. 2000D - 1. 

/3/  AND SEE REPORT OF THE HUMAN RIGHTS COMMISSION OF SAN FRANCISCO,
BILINGUAL EDUCATION IN THE SAN FRANCISCO PUBLIC SCHOOLS, AUG. 9, 1973. 

/4/  110 CONG. REC. 6543 (SEN. HEMPHREY, QUOTING FROM PRESIDENT
KENNEDY'S MESSAGE TO CONGRESS, JUNE 19, 1963). 

JR. JUSTICE WHITE CONCURS IN THE RESULT. 

MR. JUSTICE STEWART, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, CONCURRING IN THE RESULT. 

IT IS UNCONTESTED THAT MORE THAN 2,800 SCHOOL CHILDREN OF CHINESE
ANCESTRY ATTEND SCHOOL IN THE SAN FRANCISCO UNIFIED SCHOOL DISTRICT
SYSTEM EVEN THOUGH THEY DO NOT SPEAK, UNDERSTAND, READ, OR WRITE THE
ENGLISH LANGUAGE, AND THAT AS TO SOME 1,800 OF THESE PUPILS THE
RESPONDENT SCHOOL AUTHORITIES HAVE TAKEN NO SIGNIFICANT STEPS TO DEAL
WITH THIS LANGUAGE DEFICIENCY, THE PETITIONERS DO NOT CONTEND, HOWEVER,
THAT THE RESPONDENTS HAVE AFFIRMATIVELY OR INTENTIONALLY CONTRIBUTED TO
THIS INADEQUACY, BUT ONLY THAT THEY FAILED TO ACT IN THE FACE OF
CHANGING SOCIAL AND LINGUISTIC PATTERNS.  BECAUSE OF THIS LAISSEZFAIRE
ATTITUDE ON THE PART OF THE SCHOOL ADMINISTRATORS, IT IS NOT ENTIRELY
CLEAR THAT 601 OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000D,
STANDING ALONE, WOULD RENDER ILLEGAL THE EXPENDITURE OF FEDERAL FUNDS
ON THESE SCHOOLS.  FOR THAT SECTION PROVIDES THAT "(NO PERSON IN THE
UNITED STATES SHALL, ON THE GROUND OF RACE, COLOR, OR NATIONAL ORIGIN,
BE EXCLUDED FROM PARTICIPATION IN, BE DENIED THE BENEFITS OF, OR BE
SUBJECTED TO DISCRIMINATION UNDER ANY PROGRAM OR ACTIVITY RECEIVING
FEDERAL FINANCIAL ASSISTANCE." 

ON THE OTHER HAND, THE INTERPRETIVE GUIDELINES PUBLISHED BY THE
OFFICE FOR CIVIL RIGHTS OF THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE IN 1970, 35 FED. REG. 11595, CLEARLY INDICATE THAT AFFIRMATIVE
EFFORTS TO GIVE SPECIAL TRAINING FOR NON-ENGLISH-SPEAKING PUPILS ARE
REQUIRED BY TIT. VI AS A CONDITION TO RECEIPT OF FEDERAL AID TO PUBLIC
SCHOOLS: 

     "WHERE INABILITY TO SPEAK AND UNDERSTAND THE ENGLISH LANGUAGE

  EXCLUDES NATIONAL ORIGIN-MINORITY GROUP CHILDREN FROM EFFECTIVE

  PARTICIPATION IN THE EDUCATIONAL PROGRAM OFFERED BY A SCHOOL

  DISTRICT, THE DISTRICT MUST TAKE AFFIRMATIVE STEPS TO RECTIFY THE

  LANGUAGE DEFICIENCY IN ORDER TO OPEN ITS INSTRUCTIONAL PROGRAM TO

  THESE STUDENTS."  /1/ 

THE CRITICAL QUESTION IS, THEREFORE, WHETHER THE REGULATIONS AND
GUIDELINES PROMULGATED BY HEW GO BEYOND THE AUTHORITY OF 601.  /2/
LAST TERM, IN MOURNING V. FAMILY PUBLICATIONS SERVICE, INC., 411 U.S.
356, 369, WE HELD THAT THE VALIDITY OF A REGULATION PROMULGATED UNDER A
GENERAL AUTHORIZATION PROVISION SUCH AS 602 OF TIT. VI /3/  "WILL BE
SUSTAINED SO LONG AS IT IS 'REASONABLY RELATED TO THE PURPOSE OF THE
ENABLING LEGISLATION.'  THORPE V. HOUSING AUTHORITY OF THE CITY OF
DURHAM, 390 U.S. 268, 280 - 281 (1969)."  I THINK THE GUIDELINES HERE
FAIRLY MEET THAT TEST.  MOREOVER, IN ASSESSING THE PURPOSES OF REMEDIAL
LEGISLATION WE HAVE FOUND THAT DEPARTMENTAL REGULATIONS AND "CONSISTENT
ADMINISTRATIVE CONSTRUCTION" ARE "ENTITLED TO GREAT WEIGHT." 
TRAFFICANTE V. METROPOLITAN LIFE INSURANCE CO., 409 U.S. 205, 210;
GRIGGS V. DUKE POWER CO., 401 U.S. 424, 433 - 434; UDALL V. TALLMAN,
380 U.S. 1.  THE DEPARTMENT HAS REASONABLY AND CONSISTENTLY INTERPRETED
601 TO REQUIRE AFFIRMATIVE REMEDIAL EFFORTS TO GIVE SPECIAL ATTENTION
TO LINGUISTICALLY DEPRIVED CHILDREN. 

FOR THESE REASONS I CONCUR IN THE RESULT REACHED BY THE COURT. 

/1/  THESE GUIDELINES WERE ISSUED IN FURTHER CLARIFICATION OF THE
DEPARTMENT'S POSITION AS STATED IN ITS REGULATIONS ISSUED TO IMPLEMENT
TIT. VI, 45 CFR PT. 80.  THE REGULATIONS PROVIDE IN PART THAT NO
RECIPIENT OF FEDERAL FINANCIAL ASSISTANCE ADMINISTERED BY HEW MAY 

"PROVIDE ANY SERVICE, FINANCIAL AID, OR OTHER BENEFIT TO AN
INDIVIDUAL WHICH IS DIFFERENT, OR IS PROVIDED IN A DIFFERENT MANNER,
FROM THAT PROVIDED TO OTHERS UNDER THE PROGRAM; (OR)     "RESTRICT AN
INDIVIDUAL IN ANY WAY IN THE ENJOYMENT OF ANY ADVANTAGE OR PRIVILEGE
ENJOYED BY OTHERS RECEIVING ANY SERVICE, FINANCIAL AID, OR OTHER
BENEFIT UNDER THE PROGRAM." 

45 CFR 80.3 (B)(1)(II), (IV). 

/2/  THE RESPONDENTS DO NOT CONTEST THE STANDING OF THE PETITIONERS
TO SUE AS BENEFICIARIES OF THE FEDERAL FUNDING CONTRACT BETWEEN THE
DEPARTMENT OF HEALTH, EDUCATION, AND WEFARE AND THE SAN FRANCISCO
UNIFIED SCHOOL DISTRICT. 

/3/  SECTION 602, 42 U.S.C. 2000D - 1, PROVIDES IN PERTINENT PART: 
"EACH FEDERAL DEPARTMENT AND AGENCY WHICH IS EMPOWERED TO EXTEND
FEDERAL FINANCIAL ASSISTANCE TO ANY PROGRAM OR ACTIVITY, BY WAY OF
GRANT, LOAN, OR CONTRACT OTHER THAN A CONTRACT OF INSURANCE OR
GUARANTY, IS AUTHORIZED AND DIRIECTED TO EFFECTUATE THE PROVISIONS OF
ISSUING RULES, REGULATIONS, OR ORDERS OF GENERAL APPLICABILITY WHICH
SHALL BE CONSISTENT WITH ACHIEVEMENT OF THE OBJECTIVES OF THE STATUTE
AUTHORIZING THE FINANCIAL ASSISTANCE IN CONNECTION WITH WHICH THE
ACTION IS TAKEN...." 

THE UNITED STATES AS AMICUS CURIAE ASSERTS IN ITS BRIEF, AND THE
RESPONDENTS APPEAR TO CONCEDE, THAT THE GUIDELINES WERE ISSUED PURSUANT
TO 602. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING
IN THE RESULT. 

I JOIN MR. JUSTICE STEWART'S OPINION AND THUS I, TOO, CONCUR IN THE
RESULT.  AGAINST THE POSSIBILITY THAT THE COURT'S JUDGMENT MAY BE
INTERPRETED TOO BROADLY, I STRESS THE FACT THAT THE CHILDREN WITH WHOM
WE ARE CONCERNED HERE NUMBER ABOUT 1,800.  THIS IS A VERY SUBSTANTIAL
GROUP THAT IS BEING DEPRIVED OF ANY MEANINGFUL SCHOOLING BECAUSE THEY
CANNOT UNDERSTAND THE LANGUAGE OF THE CLASSROOM.  WE MAY ONLY GUESS AS
TO WHY THEY HAVE HAD NO EXPOSURE TO ENGLISH IN THEIR PRESCHOOL YEARS. 
EARLIER GENERATIONS OF AMERICAN ETHNIC GROUPS HAVE OVERCOME THE
LANGUAGE BARRIER BY EARNEST PARENTAL ENDEAVOR OR BY THE HARD FACT OF
BEING PUSHED OUT OF THE FAMILY OR COMMUNITY NEST AND INTO THE REALITIES
OF BROADER EXPERIENCE. 

I MERELY WISH TO MAKE PLAIN THAT WHEN, IN ANOTHER CASE, WE ARE
CONCERNED WITH A VERY FEW YOUNGSTERS, OR WITH JUST A SINGLE CHILD WHO
SPEAKS ONLY GERMAN OR POLISH OR SPANISH OR ANY LANGUAGE OTHER THAN
ENGLISH, I WOULD NOT REGARD TODAY'S DECISION, OR THE SEPARATE
CONCURRENCE, AS CONCLUSIVE UPON THE ISSUE WHETHER THE STATUTE AND THE
GUIDELINE REQUIRE THE FUNDED SCHOOL DISTRICT TO PROVIDE SPECIAL
INSTRUCTION.  FOR ME, NUMBERS ARE AT THE HEART OF THIS CASE AND MY
CONCURRENCE IS TO BE UNDERSTOOD ACCORDINGLY. 

EDWARD H. STEINMAN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEF WERE KENNETH HECHT AND DAVID C. MOON. 

THOMAS M. O'CONNOR ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WERE GEORGE E. KRUEGER AND BURK E. DELVENTHAL. 

ASSISTANT ATTORNEY GENERAL POTTINGER ARGUED THE CAUSE FOR THE UNITED
STATES AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL BORK, DEPUTY SOLICITOR GENERAL WALLACE, MARK L.
EVANS, AND BRIAN K. LANDSBERG.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY STEPHEN J.
POLLAK, RALPH J. MOORE, JR., DAVID RUBIN, AND PETER T. GALIANO FOR THE
NATIONAL EDUCATION ASSN. ET AL.; BY W. REECE BADER AND JAMES R. MADISON
FOR THE SAN FRANCISCO LAWYERS' COMMITTEE FOR URBAN AFFAIRS; BY J.
HAROLD FLANNERY FOR THE CENTER FOR LAW AND EDUCATION, HARVARD
UNIVERSITY; BY HERBERT TEITELBAUM FOR THE PUERTO RICIAN LEGAL DEFENSE
AND EDUCATION FUND, INC.; BY MARIO G. OBLEDO, SANFORD J. ROSEN, MICHAEL
MENDELSON, AND ALAN EXELROD FOR THE MEXICAN AMERICAN LEGAL DEFENSE AND
EDUCATIONAL FUND ET AL.; BY SAMUEL RABINOVE, JOSEPH B. ROBISON, ARNOLD
FORSTER, AND ELLIOT C. RATHENBERG FOR THE AMERICAN JEWISH COMMITTEE ET
AL.; BY F. RAYMOND MARKS FOR THE CHILDHOOD AND GOVERNMENT PROJECT; BY
MARTIN GLICK FOR EFRAIN TOSTADO ET AL.; AND BY THE CHINESE CONSOLIDATED
ASSN. ET AL.
..END :

















SEA-LAND SERVICES, INC. V. GAUDET, 414 U.S. 573 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 72 - 1019.  ARGUED NOVEMBER 7, 1973--DECIDED JANUARY
21,

1974; 463 F.2D 1331, AFFIRMED. 


    RESPONDENT'S HUSBAND, A LONGSHOREMAN, WAS SEVERELY INJURED

  ABOARD PETITIONER'S VESSEL IN LOUISIANA NAVIGABLE WATERS. 

  SHORTLY AFTER TERMINATION OF AN ACTION BASED ON UNSEAWORTHINESS,

  IN WHICH HE RECOVERED DAMAGES FOR PAST AND FUTURE WAGES, PAIN AND

  SUFFERING, AND MEDICAL AND INCIDENTAL EXPENSES, THE HUSBAND DIED

  AND RESPONDENT BROUGHT THIS MARITIME WRONGFUL-DEATH ACTION FOR

  DAMAGES SUFFERED BY HER.  THE DISTRICT COURT DISMISSED

  RESPONDENT'S SUIT ON GROUNDS OF RES JUDICATA AND FAILURE TO STATE

  A CLAIM.  THE COURT OF APPEALS REVERSED, ON THE BASIS OF MORAGNE

  V. STATES MARINE LINES, 398 U.S. 375.  HELD:  RESPONDENT'S

  MARITIME WRONGFUL-DEATH ACTION IS NOT BARRED BY DECEDENT'S

  RECOVERY IN HIS LIFETIME FOR DAMAGES FOR HIS PERSONAL INJURIES. 

  PP. 575 - 595. 

     (A) MORAGNE V. STATES MARINE LINES, SUPRA, CREATED A TRUE

  WRONGFUL-DEATH REMEDY THAT IS FOUNDED UPON THE DEATH ITSELF AND

  IS INDEPENDENT OF ANY ACTION THE DECEDENT MAY HAVE HAD FOR HIS

OWN PERSONAL INJURIES, AND BECAUSE RESPONDENT'S SUIT THUS

INVOLVES A DIFFERENT CAUSE OF ACTION FROM DECEDENT'S, IT IS NOT

  PRECLUDED BY RES JUDICATA.  PP. 575 - 583. 

(B) THE MARITIME WRONGFUL-DEATH REMEDY PERMITS A DECEDENT'S

  DEPENDENTS TO RECOVER DAMAGES FOR LOSS OF SUPPORT, SERVICES, AND

  SOCIETY, AS WELL AS DAMAGES FOR FUNERAL EXPENSES.  PP. 583 -

  591. 

     (C) AL BUT THE FIRST OF THE FOREGOING ELEMENTS OF DAMAGES
COULD

  NOT ACCURE UNTIL THE DECEDENT'S DEATH AND THEREFORE COULD NOT

  SUBJECT PETITIONER TO DOUBLE LIABILITY.  THOUGH THERE IS AN

  APPARENT OVERLAP BETWEEN A DECEDENT'S RECOVERY FOR LOSS OF FUTURE

WAGES AND THE DEPENDENTS' SUBSEQUENT CLAIM FOR SUPPORT, THE

 DOCTRINE OF COLLATERAL ESTOPPEL WOULD BAR DEPENDENTS FROM

  RECOVERING FOR LOSS OF SUPPORT TO THE EXTENT THAT THE DECEDENT

  HAD RECOVERED FOR FUTURE WAGES.  PP. 591 - 595. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  POWELL, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C. J., AND STEWART AND REGNQUIST,
JJ., JOINED, POST, P. 595. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

MORAGNE V. STATES MARINE LINES, 398 U.S. 375 (1970), OVERRULING THE
HARRISBURG, 119 U.S. 199 (1886), HELD THAT AN ACTION FOR WRONGFUL DEATH
BASED ON UNSEAWORTHINESS IS MAINTAINABLE UNDER FEDERAL MARITIME LAW,
BUT LEFT THE SHAPING OF THE NEW NONSTATUTORY ACTION TO FUTURE CASES. 
THE QUESTION IN THIS CASE IS WHETHER THE WIDOW OF A LONGSHOREMAN MAY
MAINTAIN SUCH AN ACTION FOR THE WRONGFUL DEATH OF HER HUSBAND--ALLEGED
TO HAVE RESULTED FROM INJURIES SUFFERED BY HIM WHILE ABOARD A VESSEL IN
NAVIGABLE WATERS--AFTER THE DECEDENT RECOVERED DAMAGES IN HIS LIFETIME
FOR HIS INJURIES. 

RESPONDENT'S HUSBAND SUFFERED SEVERE INJURIES WHILE WORKING AS A
LONGSHOREMAN ABOARD PETITIONER'S VESSEL, THE S. S. CLAIBORNE, IN
LOUISIANA NAVIGABLE WATERS.  HE RECOVERED $140,000 FOR HIS PERMANENT
DISABILITY, PHYSICAL AGONY, AND LOSS OF EARNINGS IN AN ACTION BASED ON
UNSEAWORTHINESS, /1/  BUT DIED SHORTLY AFTER THE ACTION WAS
TERMINATED.  RESPONDENT BROUGHT THIS WRONGFUL-DEATH ACTION IN THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA FOR DAMAGES
SUFFERED BY HER.  BASED ON HER HUSBAND'S RECOVERY, THE DISTRICT COURT
DISMISSED THE WIDOW'S SUIT ON GROUNDS OF RES JUDICATA AND FAILURE TO
STATE A CLAIM.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED,
HOLDING THAT MORAGNE GAVE "MRS.  GAUDET ... A COMPENSABLE CAUSE OF
ACTION FOR MR. GAUDET'S DEATH WHOLLY APART FROM AND NOT EXTINGUISHED BY
THE LATTER'S RECIVERY FOR HIS PERSONAL INJURIES...."  463 F.2D 1331, 13
2 (1972).  WE GRANTED CERTIORARI, 411 U.S. 963 (1973), AND NOW AFFIRM. 

        I THE HARSHNESS OF THE HARRISBURG RULE THAT IN THE ABSENCE
OF A STATUTE, THERE IS NO MARITIME ACTION FOR WRONGFUL DEATH, WAS ONLY
PARTIALLY RELIEVED BY ENACTMENT OF FEDERAL AND STATE WRONGFUL-DEATH
STATUTES.  /2/  THE DEATH ON THE HIGH SEAS ACT, 41 STAT. 537, 46 U.S.C.
761 - 768, CREATED A WRONGFUL-DEATH ACTION FOR DEATH OUTSIDE THE THREE
MILE LIMIT.  /3/  THE JONES ACT, 41 STAT. 1007, 46 U.S.C. 688,
INCORPORATING THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, 45
U.S.C. 51 - 60, ESTABLISHED SUCH AN ACTION BASED ON NEGLIGENCE FOR THE
WRONGFUL DEATH OF A SEAMAN REGARDLESS OF THE SITUS OF THE WRONG; BUT
OTHERWISE, WRONGFUL-DEATH ACTIONS FOR DEATHS OCCURRING ON NAVIGABLE
WATERS WITHIN THE THREE-MILE TERRITORIAL WATERS OF A STATE DEPENDED
UPON WHETHER THE STATE HAD ENACTED A WRONGFUL-DEATH STATUTE AND, IF SO,
WHETHER THE STATUTE PERMITTED RECOVERY.  /4/ 

MORAGNE REFLECTED DISSATISFACTION WITH THIS STATE OF THE LAW THAT
ILLOGICALLY AND UNJUSTIFIABLY DEPRIVED THE DEPENDENTS OF MANY MARITIME
DEATH VICTIMS OF AN ADEQUATE REMEDY FOR THEIR LOSSES.  THREE CLEARLY
UNJUST CONSEQUENCES WERE OF PARTICULAR CONCERN: 

     "THE FIRST OF THESE IS SIMPLY THE DISCREPANCY PRODUCED
WHENEVER

  THE RULE OF THE HARRISBURG HOLDS SWAY:  WITHIN TERRITORIAL

  WATERS, IDENTICAL CONDUCT VIOLATING FEDERAL LAW (HERE THE

  FURNISHING OF AN UNSEAWORTHY VESSEL) PRODUCES LIABILITY IF THE

  VICTIM IS MERELY INJURED, BUT FREQUENTLY NOT IF HE IS KILLED.... 

     "THE SECOND INCONGRUITY IS THAT IDENTICAL BREACHES OF THE
DUTY

  TO PROVIDE A SEAWORTHY SHIP, RESULTING IN DEATH, PRODUCE

  LIABILITY OUTSIDE THE THREE-MILE LIMIT--SINCE A CLAIM UNDER THE

  DEATH ON THE HIGH SEAS ACT MAY BE FOUNDED ON UNSEAWORTHINESS, SEE

  KERMAN V. AMERICAN DREDGING CO., 355 U.S. 426, 430 N. 4

  (1958)--BUT NOT WITHIN THE TERRITORIAL WATERS OF A STATE WHOSE

  LOCAL STATUTE EXCLUDES UNSEAWORTHINESS CLAIMS.... 

     "THE THIRD, AND ASSERTEDLY THE 'STRANGEST' ANOMALY IS THAT A

  TRUE SEAMAN--THAT IS, A MEMBER OF A SHIP'S COMPANY, COVERED BY

  THE JONES ACT--IS PROVIDED NO REMEDY FOR DEATH CAUSED BY

  UNSEAWORTHINESS WITHIN TERRITORIAL WATERS, WHILE A LONGSHOREMEN,

TO WHOM THE DUTY OF SEAWORTHINESS WAS EXTENDED ONLY BECAUSE HE

  PERFORMS WORK TRADITIONALLY DONE BY SEAMEN, DOES HAVE SUCH A

  REMEDY WHEN ALLOWED BY A STATE STATUTE (FOOTNOTE OMITTED .)"  398

  U.S., AT 395 - 396. 

IN OVERRULING THE HARRISBURG, MORAGNE ENDED THESE ANOMALIES BY THE
CREATION OF A UNIFORM FEDERAL CAUSE OF ACTION FOR MARITIME DEATH,
DESIGNED TO EXTEND TO THE DEPENDENTS OF MARITIME WRONGFUL-DEATH VICTIMS
ADMINRALTY'S "SPECIAL SOLICITUDE FOR THE WELFARE OF THOSE MEN WHO
UNDERTAKE) TO VENTURE UPON HAZARDOUS AND UNPREDICTABLE SEA VOYAGES." 
MORAGNE, SUPRA, AT 387.  OUR APPROACH TO THE SOLUTION OF THE ISSUE
BEFORE US MUST NECESSARILY BE CONSISTENT WITH THE EXTENSION OF THIS
"SPECIAL SOLICITUDE" TO BE DEPENDENTS OF THE SEAFARING DECEDENT. 

PETITIONER, SEA-LAND SERVICES, INC. (SEA-LAND), WOULD ATTACH NO
SIGNIFICANCE TO THIS EXTENSION IN SHAPING THE MARITIME WRONGFUL-DEATH
REMEDY.  IT ARGUES THAT THE WRONGFUL-DEATH REMEDY SHOULD RECOGNIZE NO
LOSS INDEPENDENT OF THE DECEDENT'S CLAIM FOR HIS PERSONAL INJURIES, AND
THEREFORE THAT RESPONDENT HAD A WRONGFUL-DEATH REMEDY ONLY "IN THE
EVENT GAUDET FAILED TO PROSECUTE (HIS OWN CLAIM) DURING HIS LIFETIME." 
BRIEF FOR PETITIONER 6.  BUT MORAGNE HAD ALREADY IMPLICITLY REJECTED
THAT ARGUMENT; FOR WE THERE RECOGNIZED THAT A SINGLE TORTIOUS ACT MIGHT
RESULT IN TWO DISTINCT, THOUGH RELATED HARMS, GIVING RISE TO TWO
SEPARATE CAUSES OF ACTION:  "IN THE CASE OF MERE INJURY, THE PERSON
PHYSICALLY HARMED IS MADE WHOLE FOR HIS HARM WHILE IN THE CASE OF
DEATH, THOSE CLOSEST TO HIM--USUALLY SPOUSE AND CHILDREN--SEEK TO
RECOVER FOR THEIR TOTAL LOSS OF ONE ON WHOM THEY DEPENDED."  398 U.S.,
AT 382.  THUS, MORAGNE CREATED A TRUE WRONGFUL-DEATH REMEDY--FOUNDED
UPON THE DEATH ITSELF AND INDEPENDENT OF ANY ACTION OF THE DECEDENT MAY
HAVE HAD FOR HIS OWN PERSONAL INJURIES.  /5/  BECAUSE THE RESPONDENT'S
SUIT INVOLVES A DIFFERENT CAUSE OF ACTION, IT IS NOT PRECLUDED BY RES
JUDICATA.  FOR RES JUDICATA OPERATES ONLY TO BAR 

"REPETITIOUS SUITS INVOLVING THE SAME CAUSE OF ACTION.  (THE

  BAR) RESTS UPON CONSIDERATIONS OF ECONOMY OF JUDICIAL TIME AND

  PUBLIC POLICY FAVORING THE ESTABLISHMENT OF CERTAINTY IN LEGAL

  RELATIONS.  THE RULE PROVIDES THAT WHEN A COURT OF COMPETENT

  JURISDICTION HAS ENTERED A FINAL JUDGMENT ON THE MERITS OF A

  CAUSE OF ACTION, THE PARTIES TO THE SUIT AND THEIR PRIVIES ARE

  THEREAFTER BOUND 'NOT ONLY AS TO EVERY MATTER WHICH WAS OFFERED

  AND RECEIVED TO SUSTAIN OR DEFEAT THE CLAIM OR DEMAND, BUT AS TO

  ANY OTHER ADMISSIBLE MATTER WHICH MIGHT HAVE BEEN OFFERED FOR

  THAT PURPOSE.'  CROMWELL V. COUNTY OF SAC, 94 U.S. 351, 352.  THE

  JUDGMENT PUTS AN END TO THE CAUSE OF ACTION, WHICH CANNOT AGAIN

  BE BROUGHT INTO LITIGATION BETWEEN THE PARTIES UPON ANY GROUND

  WHATEVER, ABSENT FRAUD OR SOME OTHER FACTOR INVALIDATING THE

  JUDGMENT.  SEE VON MOSCHZISKER, 'RES JUDICATA,'  38 YALE L. J.

  299; RESTATEMENT OF THE LAW OF JUDGMENTS, 47, 48."  COMMISSIONER

  V. SUNNEN, 333 U.S. 591, 597 (1948). 

TO BE SURE, A MAJORITY OF COURTS INTERPRETING STATE AND FEDERAL
WRONGFUL-DEATH STATUTES HAVE HELD THAT AN ACTION FOR WRONGFUL DEATH IS
BARRED BY THE DECEDENT'S RECOVERY FOR INJURIES DURING HIS LIFETIME. 
BUT THE BAR DOES NOT APPEAR TO REST IN THOSE CASES SO MUCH UPON
PRINCIPLES OF RES JUDICATA OR PUBLIC POLICY AS UPON STATUTORY
LIMITATIONS ON THE WRONGFUL-DEATH ACTION.  AS ONE AUTHORITY HAS NOTED,
"(THE FACT THAT ALL CIVIL REMEDIES FOR WRONGFUL DEATH DERIVE FROM
STATUTE HAS IMPORTANT CONSEQUENCES.  SINCE THE RIGHT WAS UNKNOWN TO
COMMON LAW.  THE LEGISLATURES WHICH CREATED THE RIGHT WERE FREE TO
IMPOSE RESTRICTIONS UPON IT."  2 F. HARPER & F. JAMES, THE LAW OF TORTS
24.1, P. 1285 (1956).  THUS, ENGLANDS LORD CAMPBELL'S ACT, /6/  THE
FIRST WRONGFUL-DEATH STATUTE, PERMITS RECOVERY "WHENSOEVER THE DEATH OF
A PERSON SHALL BE CAUSED BY (THE) WRONGFUL ACT ... (OF ANOTHER) AND THE
ACT ... IS SUCH AS WOULD (IF DEATH HAD NOT ENSUED) HAVE ENTITLED THE
PARTY INJURED TO MAINTAIN AN ACTION AND RECOVER DAMAGES IN RESPECT
THEREOF...."  EARLY ENGLISH CASES INTERPRETING THE ACT HELD THAT THIS
LANGUAGE CONDITIONED WRONGFUL-DEATH RECOVERY UPON THE EXISTENCE OF AN
ACTIONABLE CAUSE OF THE DECEDENT AT HIS DEATH; /7/  IF THE DECEASED HAD
REDUCED HIS CLAIM TO JUDGMENT, SETTLED WITH OR RELEASED HIS TORTFEASOR,
AND THEREFORE UP TO THE TIME HE DIED COULD NOT HAVE MAINTAINED A
FURTHER ACTION FOR HIS INJURIES, HIS DEPENDENTS COULD HAVE NO CAUSE OF
ACTION FOR HIS WRONGFUL DEATH.  SINCE LORD CAMPBELL'S ACT BECAME THE
PROTOTYPE OF AMERICAN WRONGFUL-DEATH STATUTES, MOST STATE STATUTES
CONTAINED NEARLY IDENTICAL LANGUAGE AND HAVE BEEN SIMILARLY INTERPRETED
BY STATE COURTS.  /8/  THOUGH THE FEDERAL WRONGFUL-DEATH STATUTES DO
NOT CONTAIN THE SAME CONTROVERSIAL LANGUAGE, THE FELA, AT LEAST, HAS
BEEN HELD TO BE "ESSENTIALLY IDENTICAL WITH" LORD CAMPBELL'S ACT,
MICHIGAN C. R. CO. V. VREELAND, 227 U.S. 59, 69 (1913), AND THEREFORE
SIMILAR RESTRICTIONS HAVE BEEN PLACED ON FELA WRONGFUL-DEATH RECOVERY. 
MELLON V. GOODYEAR, 277 U.S. 335, 345 (1928).  /9/ 

MORAGNE, ON THE OTHER HAND, REQUIRES THAT THE SHAPE OF THE NEW
MARITIME WRONGFUL-DEATH REMEDY (NOT A STATUTORY CREATION BUT JUDGE
MADE, SEE THE TUNGUS V. SKOVGAARD, 358 U.S. 588, 611 (1959) (OPINION OF
BRENNAN, J,)) BE GUIDED BY THE PRINCIPLE OF MARITIME LAW THAT
"CERTAINLY IT BETTER BECOMES THE HUMANE AND LIBERAL CHARACTER OF
PROCEEDINGS IN ADMIRALTY TO GIVE THAN TO WITHHOLD THE REMEDY, WHEN NOT
REQUIRED TO WITHHOLD IT BY ESTABLISHED AND INFLEXIBLE RULES," THE SEA
GULL, 21 F. CAS. 909 (NO. 12,578) (C. C. MD. 1865), QUOTED IN MORAGNE,
398 U.S., AT 387.  SINCE THE POLICY UNDERLYING THE REMEDY IS TO INSURE
COMPENSATION OF THE DEPENDENTS FOR THEIR LOSSES RESULTING FROM THE
DECEDENT'S DEATH, THE REMEDY SHOULD NOT BE PRECLUDED MERELY BECAUSE THE
DECEDENT, DURING HIS LIFETIME, IS ABLE TO OBTAIN A JUDGMENT FOR HIS OWN
PERSONAL INJURIES.  NO STATUTORY LANGUAGE OR "ESTABLISHED AND
INFLEXIBLE RULES" OF MARITIME LAW REQUIRE A CONTRARY CONCLUSION.  /10/

        II 

SEA-LAND ARGUES THAT, IF DEPENDENTS ARE NOT PREVENTED FROM BRINGING
A SEPARATE CAUSE OF ACTION FOR WRONGFUL DEATH IN CASES WHERE THE
DECEDENT HAS ALREADY RECEIVED A JUDGMENT FOR HIS PERSONAL INJURIES,
THEN NECESSARILY IT WILL BE SUBJECT TO DOUBLE LIABILITY.  IN ORDER TO
EVALUATE THIS ARGUMENT IT IS NECESSARY FIRST TO IDENTIFY THE PARTICULAR
HARMS SUFFERED BY THE DEPENDENTS FOR WHICH THE MARITIME WRONGFUL-DEATH
REMEDY PERMITS RECOVERY OF DAMAGES.  IN IDENTIFYING THESE COMPENSABLE
HARMS, WE ARE NOT WITHOUT USEFUL GUIDES; FOR IN MORAGNE WE RECOGNIZED
THAT WITH RESPENT TO "PARTICULAR QUESTIONS OF THE MEASURE OF DAMAGES,
THE COURTS WILL NOT BE WITHOUT PERSUASIVE ANALOGY FOR GUIDANCE.  BOTH
THE DEATH ON THE HIGH SEAS ACT AND THE NUMEROUS STATE WRONGFUL-DEATH
ACTS HAVE BEEN IMPLEMENTED WITH SUCCESS FOR DECADES.  THE EXPERIENCE
THUS BUILT UP COUNSELS THAT A SUIT FOR WRONGFUL DEATH RAISES NO
PROBLEMS UNLIKE THOSE THAT HAVE LONG BEEN GRIST FOR THE JUDICIAL
MILL."  398 U.S., AT 408.  OUR REVIEW OF THOSE AUTHORITIES, AND THE
POLICIES OF MARITIME LAW, PERSUADE US THAT, UNDER THE MARITIME WRONGFUL
DEATH REMEDY, THE DECEDENT'S DEPENDENTS MAY RECOVER DAMAGES FOR THEIR
LOSS OF SUPPORT, SERVICES, AND SOCIETY, AS WELL AS FUNERAL EXPENSES. 

RECOVERY FOR LOSS OF SUPPORT HAS BEEN UNIVERSALLY RECOGNIZED, /11/
AND INCLUDES ALL THE FINANCIAL CONTRIBUTIONS THAT THE DECEDENT WOULD
HAVE MADE TO HIS DEPENDENTS HAD HE LIVED.  SIMILARLY, THE OVERWHELMING
MAJORITY OF STATE WRONGFUL-DEATH ACTS /12/  AND COURTS INTERPRETING THE
DEATH ON THE HIGH SEAS ACT /13/  HAVE PERMITTED RECOVERY FOR THE
MONETARY VALUE OF SERVICES THE DECEDENT PROVIDED AND WOULD HAVE
CONTINUED TO PROVIDE BUT FOR HIS WRONGFUL DEATH.  /14/  SUCH SERVICES
INCLUDE, FOR EXAMPLE, THE NURTURE, TRAINING, EDUCATION, AND GUIDANCE
THAT A CHILD WOULD HAVE RECEIVED HAD NOT THE PARENT BEEN WRONGFULLY
KILLED.  /15/  SERVICES THE DECEDENT PERFORMED AT HOME OR FOR HIS
SPOUSE ARE ALSO COMPENSABLE.  /16/ 

COMPENSATION FOR LOSS OF SOCIETY, HOWEVER, PRESENTS A CLOSER
QUESTION.  THE TERM "SOCIETY" EMBRACES A BROAD RANGE OF MUTUAL BENEFITS
EACH FAMILY MEMBER RECEIVES FROM THE OTHERS' CONTINUED EXISTENCE,
INCLUDING LOVE, AFFECTION, CARE, ATTENTION, COMPANIONSHIP, COMFORT, AND
PROTECTION.  /17/  UNQUESTIONABLY, THE DEPRIVATION OF THESE BENEFITS BY
WRONGFUL DEATH IS A GRAVE LOSS TO THE DECEDENT'S DEPENDENTS.  DESPITE
THIS FACT, A NUMBER OF EARLY WRONGFUL-DEATH STATUTES WERE INTERPRETED
BY COURTS TO PRECLUDE RECOVERY FOR THESE LOSSES ON THE GROUND THAT THE
STATUTES WERE INTENDED TO RPOVIDE COMPENSATION ONLY FOR "PECUNIARY
LOSS," AND THAT THE LOSS OF SOCIETY IS NOT SUCH AN ECONOMIC LOSS.  /18/
OTHER WRONGFUL-DEATH STATUTES CONTAIN EXPRESS LANGUAGE LIMITING
RECOVERY TO PECUNIARY LOSSES; /19/  FOR EXAMPLE, THE DEATH ON THE HIGH
SEAS ACT LIMITS RECOVERY TO "A FAIR AND JUST COMPENSATION FOR THE
PECUNIARY LOSS SUSTAINED BY THE PERSONS FOR WHOSE BENEFIT THE SUIT IS
BROUGHT ...," 46 U.S.C. 762 (EMPHASIS ADDED), AND CONSEQUENTLY HAS BEEN
CONSTRUED TO EXCLUDE RECOVERY FOR THE LOSS OF SOCIETY.  /20/ 

A CLEAR MAJORITY OF STATES, ON THE OTHER HAND, HAVE REJECTED SUCH A
NARROW VIEW OF DAMAGES, AND, EITHER BY EXPRESS STATUTORY PROVISION OR
BY JUDICIAL CONSTRUCTION, PERMIT RECOVERY FOR LOSS OF SOCIETY.  /21/
THIS EXPANSION OF DAMAGES RECOVERABLE UNDER WRONGFUL-DEATH STATUTES TO
INCLUDE LOSS OF SOCIETY HAD LED ONE COMMENTATOR TO OBSERVE THAT
"(WHETHER SUCH DAMAGES ARE CLASSIFIED AS 'PECUNIARY,' OR RECOGNIZED AND
ALLOWED AS NONPECUNIARY, THE RECENT TREND IS UNMISTAKABLY IN FAVOR OF
PERMITTING SUCH RECOVERY."  SPEISER 218.  THUS, OUR DECISION TO PERMIT
RECO ERY FOR LOSS OF SOCIETY ALIGNS THE MARITIME WRONGFUL-DEATH REMEDY
WITH A MAJORITY OF STATE WRONGFUL-DEATH STATUTES.  /22/  BUT IN ANY
EVENT, OUR DECISION IS COMPELLED IF WE ARE TO SHAPE THE REMEDY TO
COMPORT WITH THE HUMANITARIAN POLICY OF THE MARITIME LAW TO SHOW
"SPECIAL SOLICITUDE" FOR THOSE WHO ARE INJURED WITHIN ITS
JURISDICTION.  /23/     OBJECTION TO PERMITTING RECOVERY FOR LOSS OF
SOCIETY OFTEN CENTERS UPON THE FEAR THAT SUCH DAMAGES ARE SOMEWHAT
SPECULATIVE AND THAT FACTFINDERS WILL RETURN EXCESSIVE VERDICTS.  /24/
WE WERE NOT UNAWARE OF THIS OBJECTION IN MORAGNE, WHERE WE SAID, 

     "(OTHER COURTS HAVE RECOGNIZED THAT CALCULATION OF THE LOSS

  SUSTAINED BY DEPENDENTS OR BY THE ESTATE OF THE DECASED, WHICH IS

  REQUIRED UNDER MOST PRESENT WRONGFUL-DEATH STATUTES ... DOES NOT

  PRESENT DIFFICULTIES MORE INSURMOUNTABLE THAN ASSESSMENT OF

  DAMAGES FOR MANY NONFATAL PERSONAL INJURIES."  398 U.S., AT 385. 

FOR EXAMPLE, JURIES ARE OFTEN CALLED UPON TO MEASURE DAMAGES FOR
PAIN AND SUFFERING, MENTAL ANGUISH IN DISFIGUREMENT CASES, OR
ITENTIONAL INFLICTION OF EMOTIONAL HARM.  IN FACT, SINCE THE 17TH
CENTURY, JURIES HAVE ASSESSED DAMAGES FOR LOSS OF CONSORTIUM--WHICH
ENCOMPASSES LOSS OF SOCIETY--IN CIVIL ACTIONS BROUGHT BY HUSBANDS WHOSE
WIVES HAVE BEEN NEGLIGENTLY INJURED.  /25/  MORE RECENTLY, JURIES HAVE
BEEN ASKED TO MEASURE LOSS OF CONSORTIUM SUFFERED BY WIVES WHOSE
HUSBANDS HAVE BEEN REGLIGENTLY HARMED.  /26/  RELYING ON THIS HISTORY,
THE FLORIDA SUPREME COURT RECOGNIZED AS EARLY AS 1899 THAT THE DAMAGES
FOR LOSS OF SOCIETY RECOVERED BY A WIFE FOR THE WRONGFUL DEATH OF THER
HUSBAND WERE "NO MORE FANCIFUL OR SPECULATIVE THAN THE FRUGALITY,
INDUSTRY, USEFULNESS, ATTENTION AND TENDER SOLICITUDE OF A WIFE (ALL OF
WHICH A HUSBAND MIGHT RECOVER AT COMMON LAW IN AN ACTION FOR
CONSORTIUM), AND THE ONE CAN BE COMPENSATED (AS EASILY) BY THAT SIMPLE
STANDARD OF PECUNIARY LOSS ... AS THE OTHER."  FLORIDA C. & P. R. CO.
V. FOXWORTH, 41 FLA, 1, 73, 25 SO. 338, 348. 

WE ARE CONFIDENT THAT THE MEASURE OF DAMAGES FOR LOSS OF SOCIETY IN
A MARITIME WRONGFUL-DEATH ACTION CAN "BE LEFT TO TURN MAINLY UPON THE
GOOD SENSE AND DELIBERATE JUDGMENT OF THE TRIBUNAL ASSIGNED BY LAW TO
ASCERTAIN WHAT IS A JUST COMPENSATION FOR THE INJURIES INFLICTED."  THE
CITY OF PANAMA, 101 U.S. 453, 464 (1880).  AS IN ALL DAMAGES AWARDS FOR
TORTIOUS INJURY, "(INSISTENCE ON MATHEMATICAL PRECISION WOULD BE
ILLUSORY AND THE JUDGE OR JUROR MUST BE ALLOWED A FAIR LATITUDE TO MAKE
REASONABLE APPROXIMATIONS GUIDED BY JUDGMENT AND PRACTICAL EXPERIENCE,"
WHITAKER V. BLIDBERG ROTHCHILD CO., 296 F.2D 554, 555 (CA4 1961). 
MOREOVER, APPELLATE TRIBUNALS HAVE AMPLY DEMONSTRATED THEIR ABILITY TO
CONTROL EXCESSIVE AWARDS, SEE, E.G., MOORE-MCCORMACK LINES, INC. V.
RICHARDSON, 295 F.2D 583 (CA2 1961); DUGAS V. NATIONAL AIRCRAFT CORP.,
438 F.2D 1386 (CA3 1971). 

FINALLY, IN ADDITION TO RECOVERY FOR LOSS OF SUPPORT, SERVICES, AND
SOCIETY, DAMAGES FOR FUNERAL EXPENSES MAY BE AWARDED UNDER THE MARITIME
WRONGFUL-DEATH REMEDY IN CIRCUMSTANCES WHERE THE DECEDENT'S DEPENDENTS
HAVE EITHER PAID FOR THE FUNERAL OR ARE LIABLE FOR ITS PAYMENT.  A
MAJORITY OF STATES PROVIDED FOR SUCH RECOVERY UNDER THEIR WRONGFUL
DEATH STATUTES.  /27/  FURTHERMORE, ALTHOUGH THERE IS A CONFLICT OVER
WHETHER FUNERAL EXPENSES ARE COMPENSABLE UNDER THE DEATH ON THE HIGH
SEAS ACT, COMPARE THE CULBERSON, 61 F.2D 194 (CA3 1932), WITH MOORE V.
THE O S FRAM, 226 F.SUPP.  816 (SD TEX. 1963), AFF'D, SUB NOM. WILHELM
SEAFOODS, INC. V. MOORE, 328 F.2D 868 (CA5 1964), IT IS CLEAR THAT
FUNERAL EXPENSES WERE PREMITTED UNDER THE GENERAL MARITIME LAW PRIOR TO
THE HARRISBURG, SEE, E.G., HOLLYDAY V. THE DAVID REEVES, 12 F. CAS. 386
(NO. 6,625) (MD. 1879).  WE THEREFORE FIND NO PERSUASIVE REASON FOR NOT
FOLLOWING THE EARLIER ADMIRALTY RULE AND THUS HOLD THAT FUNERAL
EXPENSES ARE COMPENSABLE.  /28/ 

TURNING NOW TO SEA-LAND'S DOUBLE-LIABILITY ARGUMENT, WE NOTE THAT,
IN CONTRAST TO THE ELEMENTS OF DAMAGES WHICH WE TODAY HOLD MAY BE
RECOVERED IN A MARITIME WRONGFUL-DEATH ACTION, THE DECEDENT RECOVERED
DAMAGES ONLY FOR HIS LOSS OF PAST AND FUTURE WAGES, PAIN AND SUFFERING,
AND MEDICAL AND INCIDENTAL EXPENSES.  OBVIOUSLY.  THE DECEDENT'S
RECOVERY DID NOT INCLUDE DAMAGES FOR THE DEPENDENTS' LOSS OF SERVICES,
SOCIETY, AND FUNERAL EXPENSES.  INDEED, THESE LOSSES--UNIQUE TO THE
DECEDENT'S DEPENDENTS--COULD NOT ACCURE UNTIL THE DECEDENT'S DEATH. 
THUS, RECOVERY OF DAMAGES FOR THESE LOSSES IN THE MARITIME WRONGFUL
DEATH ACTION WILL NOT SUBJECT SEA-LAND TO DOUBLE LIABILITY OR PROVIDE
THE DEPENDENTS WITH A WINDFALL. 

THERE IS, HOWEVER, AN APPARENT OVERLAP BETWEEN THE DECEDENT'S
RECOVERY FOR LOSS OF FUTURE WAGES AND THE DEPENDENTS' SUBSEQUENT CLAIM
FOR SUPPORT.  /29/  IN MOST INSTANCES, THE DEPENDENTS' SUPPORT WILL
DERIVE, AT LEAST IN PART, FROM THE DECEDENT'S WAGES.  BUT, WHEN A
TORTFEASOR HAS ALREADY FULLY COMPENSATED THE DECEDENT, DURING HIS
LIFETIME, FOR HIS LOSS OF FUTURE WAGES, THE TORTFEASOR SHOULD NOT BE
REQUIRED TO MAKE FURTHER COMPENSATION IN A SUBSEQUENT WRONGFUL-DEATH
SUIT FOR ANY PORTION OF PREVIOUSLY PAID WAGES.  ANY POTENTIAL FOR SUCH
DOUBLE LIABILITY CAN BE ELIMINATED BY THE APPLICATION OF FAMILIAR
PRINCIPLES OF COLLATERAL ESTOPPEL TO PRECLUDE A DECEDENT'S DEPENDENTS
FROM ATTEMPTING TO RELITIGATE THE ISSUE OF THE SUPPORT DUE FROM
DECEDENT'S FUTURE WAGES.  /30/ 

COLLATERAL ESTOPPEL APPLIES 

     "WHERE THE SECOND ACTION BETWEEN THE SAME PARTIES IS UPON A

  DIFFENENT CAUSE OR DEMAND....  IN THIS SITUATION, THE JUDGMENT IN

  THE PRIOR ACTION OPERATES AS AN ESTOPPEL, NOT AS TO MATTERS WHICH

  MIGHT HAVE BEEN LITIGATED AND DETERMINED, BUT 'ONLY AS TO THOSE

  MATTERS IN ISSUE OR POINTS CONTROVERTED, UPON THE DETERMINATION

  OF WHICH THE FINDING OR VERDICT WAS RENDERED.'  CROMWELL V.

  COUNTY OF SAC, SUPRA, 353.  AND SEE RUSSELL V. PLACE, 94 U.S.

  606; SOUTHERN PACIFIC R. CO. V. UNITED STATES, 168 U.S. 1, 48;

 MERCOID CORP. V. MID-CONTINENT CO., 320 U.S. 661, 671.  SINCE THE

  CAUSE OF ACTION INVOLVED IN THE SECOND PROCEEDING IS NOT

  SWALLOWED BY THE JUDGMENT IN THE PRIOR SUIT, THE PARTIES ARE FREE

  TO LITIGATE POINTS WHICH WERE NOT AT ISSUE IN THE FIRST

  PROCEEDING, EVEN THOUGH SUCH POINTS MIGHT HAVE BEEN TENDERED AND

  DECIDED AT THAT TIME.  BUT MATTERS WHICH WERE ACTUALLY LITIGATED

  AND DETERMINED IN THE FIRST PROCEEDING CANNOT LATER BE

  RELITIGATED."  COMMISSIONER V. SUNNEN, 333 U.S. 591, 597 - 598. 

AND WHILE THE GENERAL RULE IS THAT NONPARTIES TO THE FIRST ACTION
ARE NOT BOUND BY A JUDGMENT OR RESULTING DETERMINATION OF ISSUES, SEE
BLONDER-TONGUE V. UNIVERSITY FOUNDATION, 402 U.S. 313, 320 - 327
(1971), SEVERAL EXCEPTIONS EXIST.  THE PERTINENT EXCEPTION HERE IS THAT
NONPARTIES MAY BE COLLATERALLY ESTOPPED FROM RELITIGATING ISSUES
NECESSARILY DECIDED IN A SUIT BROUGHT BY A PARTY WHO ACTS AS A
FIDUCIARY REPRESENTATIVE FOR THE BENEFICIAL INTEREST OF THE
NONPARTIES.  /31/  IN SUCH CASES, "THE BENEFICIARIES ARE BOUND BY THE
JUDGMENT WITH RESPECT TO THE INTEREST WHICH WAS THE SUBJECT OF THE
FIDUCIARY RELATIONSHIP; THEY ARE.  . .BOUND BY THE RULES OF COLLATERAL
ESTOPPEL IN SUITS UPON DIFFERENT CAUSES OF ACTION," F. JAMES, CIVIL
PROCEDURE 11.28, P. 592 (1965). 

UNDER THE PREVAILING AMERICAN RULE, A TORT VICTIM SUING FOR DAMAGES
FOR PERMANENT INJURIES IS PERMITTED TO BASE HIS RECOVERY "ON HIS
PROSPECTIVE EARNINGS FOR THE BALANCE OF HIS LIFE EXPECTANCY AT THE TIME
OF HIS INJURY UNDIMINISHED BY ANY SHORTENING OF THAT EXPECTANCY AS A
RESULT OF THE INJURY,"  2 F. HARPER & F. JAMES, THE LAW OF TORTS 24.6,
PP. 1293 - 1294 (1956) (EMPHASIS IN ORIGINAL).  /32/  THUS, WHEN A
DECEDENT BRINGS HIS OWN PERSONAL-INJURY ACTION DURING HIS LIFETIME AND
RECOVERS DAMAGES FOR HIS LOST WAGES HE ACTS IN A FIDUCIARY CAPACITY TO
THE EXTENT THAT HE REPRESENTS HIS DEPENDENTS' INTEREST IN THAT PORTION
OF HIS PROSPECTIVE EARNINGS WHICH, BUT FOR HIS WRONGFUL DEATH, THEY HAD
A REASONABLE EXPECTATION OF HIS PROVIDING FOR THEIR SUPPORT.  SINCE THE
DECEDENT'S RECOVERY OF ANY FUTURE WAGES WILL NORMALLY BE DEPENDENT UPON
HIS FULLY LITIGATING THAT ISSUE, WE NEED NOT FEAR THAT APPLYING
PRINCIPLES OF COLLATERAL ESTOPPEL TO PRECLUDE THE DECEDENT'S
DEPENDENTS' CLAIM FOR A PORTION OF THOSE FUTURE WAGES WILL DEPRIVE THE
DEPENDENTS OF THEIR DAY IN COURT. 

THE JUDGMENT OF THE COURT OF APPEALS IS

 AFFIRMED. 

/1/  THE JURY REDUCED A VERDICT OF $175,000 BY 20% BECAUSE OF
DECEDENT'S CONTRIBUTORY NEGLIGENCE. 

/2/  WRONGFUL-DEATH STATUTES ARE TO BE DISTINGUISHED FROM SURVIVAL
STATUTES.  THE LATTER HAVE BEEN SEPARATELY ENACTED TO ABROGATE THE
COMMON-LAW RULE THAT AN ACTION FOR TORT ABATED AT THE DEATH OF EITHER
THE INJURED PERSON OR THE TORTFEASOR.  SURVIVAL STATUTES PERMIT THE
DECEASED'S ESTATE TO PROSECUITE ANY CLAIMS FOR PERSONAL INJURY THE
DECEASED WOULD HAVE HAD, BUT FOR HIS DEATH.  THEY DO NOT PERMIT
RECOVERY FOR HARMS SUFFERED BY THE DECEASED'S FAMILY AS A RESULT OF HIS
DEATH.  SEE MICHIGAN C. R. CO. V. VREELAND, 227 U.S. 59 (1913);
SCHUMACHER, RIGHTS OF ACTION UNDER DEATH AND SURVIVAL STATUTES, 23
MICH. L. REV. 114 (1924) (HEREAFTER SCHUMACHER); WINFIELD, DEATH AS
AFFECTING LIABILITY IN TORT, 29 COL. L. REV. 239 (1929); LIVINGSTON,
SURVIVAL OF TROT ACTIONS, A PROPOSAL FOR CALIFORNIA LEGISLATION, 37
CALIF. L. REV. 63 (1949); NEW YORK LAW REVISION COMMISSION REPORT 157
ET SEQ.  SE(1935).  THE UNDERLYING REASONS FOR SURVIVAL STATUTES HAVE
BEEN SUMMARIZED BY PROFESSOR HARPER: 

"AT EARLY COMMON LAW, THE PERSONAL REPRESENTATIVE COULD NOT BE SUED
FOR A TORT COMMITTED BY THE DECEDENT DURING HIS LIFETIME.  FROM EARLY
NOTIONS OF THE UNTRANSMITTABILITY OF BLAME--AND THE QUASI-CRIMINAL
NATURE OF EARLY TORT LAW MUST NOT BE FORGOTTEN--TO THE CRYSTALLIZATION
OF THE MAXIM ACTIO PERSONALIS MORITUR CUM PERSONA, THE COMMON LAW WAS
DEVELOPED WITHOUT EXCEPTION, AND THE RULE WAS UNIFORM THAT TORT ACTIONS
DIED WITH THE PARTIES, EITHER WRONGDOER OR INJURED PARTY.  THERE WAS,
THEN, NO SURVIVAL OF A RIGHT OF ACTION EITHER IN FAVOR OF OR AGAINST AN
EXECUTOR OR ADMINISTRATOR UNTIL STATUTES MODIFIED SOMEWHAT THE RULE OF
DEPENDABILITY UPON THE LIVES OF THE ORIGINAL PARTIES TO THE WRONG."  F.
HARPER, LAW OF TORTS 673 - 674 (1933), QUOTED IN 2 F. HARPER & F.
JAMES, LAW OF TORTS 24.1 N. 2 (1956) (HEREAFTER HARPER & JAMES). 
SURVIVAL STATUTES, IN ONE FORM OR ANOTHER, HAVE BEEN ENACTED IN OVER
ONE-HALF THE STATES AND SUPPLEMENT THE STATE WRONGFUL-DEATH STATUTES,
SEE W. PROSSER, THE LAW OF TORTS 126, P. 900 (4TH ED. 1971) (HEREAFTER
PROSSER), THOUGH IN A SMALL NUMBER OF STATES THE SURVIVAL STATUTE
PROVIDES THE ONLY DEATH REMEDY AVAILABLE, SEE 2 HARPER & JAMES 24.2, P.
1288.  THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. 59, AND THE
JONES ACT, 46 U.S.C. 688, BUT NOT THE DEATH ON THE HIGH SEAS ACT, 46
U.S.C. 761, CONTAIN SURVIVAL PROVISIONS. 

/3/  KERNAN V. AMERICAN DREDGING CO., 355 U.S. 426, 430 N. 4
(1958). 

/4/  THE TUNGUS V. SKOVGAARD, 358 U.S. 588 (1959). 

/5/  MOST WRONGFUL-DEATH STATUTES HAVE ALSO BEEN CONSTRUED TO CREATE
AN INDEPENDENT CAUSE OF ACTION IN FAVOR OF THE DECEDENT'S DEPENDENTS,
SEE F. TIFFANY, DEATH BY WRONGFUL ACT 23 (2D ED. 1913) (HEREAFTER
TIFFANY); 2 HARPER & JAMES 24.2; SCHUMACHER 121.  THUS, FOR EXAMPLE,
COLERIDGE, J., SAID OF ENGLAND'S LORD CAMPBELL'S ACT, "(IT WILL BE
EVIDENT THAT THIS ACT DOES NOT TRANSFER THIS RIGHT OF ACTION TO (THE
DECEDENT'S) REPRESENTATIVE, BUT GIVES TO THE REPRESENTATIVE A TOTALLY
NEW RIGHT OF ACTION, ON DIFFERENT PRINCIPLES," BLAKE V. MIDLAND R. CO.,
18 Q. B. (AD. & E., N. S.)  *93.  *118 ENG. REP. 35, 41 (1852).  SEE
ALSO SEWARD V. THE VERA CRUZ, 10 APP. CAS. 59, 70 (LORD BLACKBURN). 
INTERPRETING THE WRONGFUL-DEATH PROVISIONS OF THE FEDERAL EMPLOYERS'
LIABILITY ACT, 45 U.S.C. 51 - 60, THIS COURT DESCRIBED THE ACTION AS
"INDEPENDENT OF ANY CAUSE OF ACTION WHICH THE DECEDENT HAD, AND
INCLUDES NO DAMAGES WHICH HE MIGHT HAVE RECOVERED FOR HIS INJURY IF HE
HAD SURVIVED.  IT IS ONE BEYOND THAT WHICH THE DECEDENT HAD,--ONE
PROCEEDING UPON ALTOGETHER DIFFERENT PRINCIPLES.  IT IS A LIABILITY FOR
THE LOSS AND DAMAGE SUSTAINED BY RELATIVES DEPENDENT UPON THE
DECEDENT," MICHIGAN C. R. CO. V. VREELAND, 227 U.S., AT 68. 

/6/ LORD CAMPBELL'S ACT, 9 & 10 VICT., C. 93, AN ACT FOR
COMPENSATING THE FAMILIES OF PERSONS KILLED BY ACCIDENTS (AUG. 26,
1846): 

"WHEREAS NO ACTION AT LAW IS NOW MAINTAINABLE AGAINST A PERSON WHO
BY HIS WRONGFUL ACT, NEGLECT, OR DEFAULT MAY HAVE CAUSED THE DEATH OF
ANOTHER PERSON...:  BE IT THEREFORE ENACTED ... THAT WHENSOEVER THE
DEATH OF A PERSON SHALL BE CAUSED BY WRONGFUL ACT, NEGLECT, OR DEFAULT,
AND THE ACT, NEGLECT, OR DEFAULT IS SUCH AS WOULD (IF DEATH HAD NOT
ENSURED) HAVE ENTITLED THE PARTY INJURED TO MAINTAIN AN ACTION AND
RECOVER DAMAGES IN RESPECT THEREOF, THEN AND IN EVERY SUCH CASE THE
PERSON WHO WOULD HAVE BEEN LIABLE IF DEATH HAD NOT ENSUED SHALL BE
LIABLE TO AN ACTION FOR DAMAGES, NOTWITHSTANDING THE DEATH OF THE
PERSON INJURED, AND ALTHOUGH THE DEATH SHALL HAVE BEEN CAUSED UNDER
SUCH CIRCUMSTANCES AS AMOUNT IN LAW TO FELONY. 

"II.  AND BE IT ENACTED, THAT EVERY SUCH ACTION SHALL BE FOR THE
BENEFIT OF THE WIFE, HUSBAND, PARENT, AND CHILD OF THE PERSON WHOSE
DEATH SHALL HAVE BEEN SO CAUSED, AND SHALL BE BROUGHT BY AND IN THE
NAME OF THE EXECUTOR OR ADMINISTRATOR OF THE PERSON DECEASED; AND IN
EVERY SUCH ACTION THE JURY MAY GIVE SUCH DAMAGES AS THEY MAY THINK
PROPORTIONED TO THE INJURY RESULTING FROM SUCH DEATH TO THE PARTIES
RESPECTIVELY FOR WHOM AND FOR WHOSE BENEFIT THE ACTION SHALL BE
BROUGHT....     "III.  PROVIDED ALWAYS, AND BE IT ENACTED, THAT NOT
MORE THAN ONE ACTION SHALL LIE FOR AND IN RESPECT OF THE SAME SUBJECT
MATTER OF COMPLAINT...." 

/7/  SEE, E.G., READ V. GREAT EASTERN R. CO., L. R. 3 Q. B. 555,
558, IN WHICH THE COURT HELD 

"(THE QUESTION TURNS UPON THE CONSTRUCTION OF S. 1 OF 9 & 10 VICT. 
(LORD CAMPBELL'S ACT), C. 93.  BEFORE THAT STATUTE THE PERSON WHO
RECEIVED A PERSONAL INJURY, AND SURVIVED ITS CONSEQUENCES, COULD BRING
AN ACTION, AND RECOVER DAMAGES FOR THE INJURY; BUT IF HE DIED FROM ITS
EFFECTS, THEN NO ACTION COULD BE BROUGHT.  TO MEET THIS STATE OF THE
LAW THE 9 & 10 VICT.  C. 93, WAS PASSED, AND 'WHENEVER THE DEATH OF A
PERSON IS CAUSED BY A WRONGFUL ACT, AND THE ACT IS SUCH AS WOULD, IF
DEATH HAD NOT ENSUED, HAVE ENTITLED THE PARTY INJURED TO MAINTAIN AN
ACTION, AND RECOVER DAMAGES IN RESPECT THEREOF, THEN ... THE PERSON WHO
WOULD HAVE BEEN LIABLE IF DEATH HAD NOT ENSUED SHALL BE LIABLE FOR AN
ACTION FOR DAMAGES NOTWITHSTANDING THE DEATH OF THE PARTY INJURED.' 
HERE, TAKING THE PLEA TO BE TRUE, THE PARTY INJURED COULD NOT 'MAINTAIN
AN ACTION IN RESPECT THEREOF,' BECAUSE HE HAD ALREADY RECEIVED
SATISFACTION." 

/8/  SEE, E.G., LEGG.  V. BRITTON, 64 VT. 652, 24 A. 1016 (1892);
MELITCH V. UNITED R. & E. CO., 121 MD. 457, 88 A. 229 (1913).  THIS
INTERPRETATION HAS BEEN BY NO MEANS UNIVERSAL.  A NUMBER OF COURTS
INTERPRETING LORD CAMPBELL'S ACT-TYPE STATE WRONGFUL-DEATH STATUTES
HAVE HELD THAT A WRONGFUL-DEATH ACTION WOULD BE PROSECUTIED EVEN THOUGH
BEFORE HIS DEATH THE DECEDENT COULD NOT HAVE BROUGHT A CAUSE OF ACTION
FOR HIS PERSONAL INJURIES BECAUSE HE HAD ALREADY RECOVERED A JUDGMENT,
SETTLED, OR RELEASED HIS CLAIMS.  A CLASSIC STATEMENT OF THIS VIEW IS
THAT OF THE SOUTH DAKOTA SUPREME COURT IN ROWE V. RICHARDS, 35 S.D.
201, 215 - 216, 151 N.W. 1001, 1006 (1915): 

"WE MUST CONFESS OUR INABILITY TO GRASP THE LOGIC OF ANY COURSE OF
SO-CALLED REASONING THROUGH WHICH THE CONCLUSION IS DRAWN THAT THE
HUSBAND SIMPLY BECAUSE HE MAY LIVE TO SUFFER FROM A PHYSICAL INJURY AND
THUS BECOME VESTED WITH A CAUSE OF ACTION FOR THE VIOLATION OF HIS OWN
PERSONAL RIGHT, HAS AN IMPLIED POWER TO RELEASE A CAUSE OF ACTION--ONE
WHICH HAS NOT THEN ACCRUED; ONE WHICH MAY NEVER ACCRUE; AND ONE WHICH
FROM ITS VERY NATURE CANNOT ACCURE UNTIL HIS DEATH; AND ONE WHICH, IF
IT EVER DOES ACCURE, WILL ACCRUE IN FAVOR OF HIS WIFE AND HE BASED
SOLELY UPON A VIOLATION OF A RIGHT VESTED SOLELY IN THE WIFE." 

THE CONTRARY INTERPRETATION OF THE PERTINENT STATUTORY LANGUAGE HAS
ALSO BEEN THE SUBJECT OF SCHOLARLY CRITICISM.  PROFESSOR PROSSER
ARGUES:  "IT IS NOT AT ALL CLEAR, HOWEVER, THAT SUCH PROVISIONS OF THE
DEATH ACTS EVER WERE INTENDED TO PREVENT RECOVERY WHERE THE DECEASED
ONCE HAD A CAUSE OF ACTION, BUT IT HAS TERMINATED BEFORE HIS DEATH. 
THE MORE REASONABLE INTERPRETATION WOULD SEEM TO BE THAT THEY ARE
DIRECTED AT THE NECESSITY OF SOME ORIGINAL TORT ON THE PART OF THE
DEFENDANT, UNDER CIRCUMSTANCES GIVING RISE TO LIABILITY IN THE FIRST
INSTANCE, RATHER THAN TO SUBSEQUENT CHANGES IN THE SITUATION AFFECTING
ONLY THE INTEREST OF THE DECEDENT."  PROSSER 127, P. 911.  SEE ALSO
SCHUMACHER 120 - 121; FLEMING, THE LOST YEARS:  A PROBLEM IN THE
COMPUTATION AND DISTRIBUTION OF DAMAGES, 50 CALIF. L. REV. 598, 608 -
610 (1962); ANNO., 70 AM. ST. REP. 666, 684 (1898).  IN STATES WHERE
THE LIMITING LANGUAGE OF LORD CAMPBELL'S ACT IS ABSENT FROM THE
WRONGFUL-DEATH STATUTE, THE COURTS HAVE PERMITTED WRONGFUL-DEATH
ACTIONS ALTHOUGH THE DECEDENT HAD ALREADY RECOVERED FOR HIS OWN
INJURIES, SEE, E.G., BLACKWELL V. AMERICAN FILM CO., 189 CAL. 689, 693
694, 209 P. 999, 1001 (1922). 

/9/  BEYOND THE COMMON ELEMENTS THAT THE FELA MAY SHARE WITH LORD
CAMPBELL'S ACT, EXPRESS STATUTORY TERMS PECULIAR TO THE FELA LEND
ADDITIONAL SUPPORT FOR THE RESULT REACHED IN MELLON V. GOODYEAR.  THE
ACT PROVIDES: 

"EVERY COMMON CARRIER BY RAILROAD WHILE ENGAGING IN COMMERCE ...
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 SUCH CARRIER,
OR BY REASON OF ANY DEFECT OR INSUFFICIENCY, DUE TO ITS
NEGLIGENCE...."  45 U.S.C. 51. 

THE SIGNIFICANT LANGUAGE, OF COURSE, IS THE USE OF THE DISJUNCTIVE
"OR."  THIS LANGUAGE WAS UNDERSTOOD BY THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT IN SEABOARD AIR LINE R. CO. V. OLIVER, 261 F.1, 2 (1919):
"THE TWO DISTINCT RIGHTS OF ACTION ARE GIVEN IN THE ALTERNATIVE OR
DISJUNCTIVELY.  THE LANGUAGE USED INDICATES THE ABSENCE OF AN INTENTION
TO ALLOW RECOVERIES FOR THE SAME WRONG BY BOTH THE INJURED EMPLOYEE
AND, IN CASE OF HIS DEATH, BY HIS PERSONAL REPRESENTATIVE; ONLY ONE
RECOVERY BEING ALLOWED WHEN THE INJURED EMPLOYEE DIES WITHOUT HAVING
ENFORCED THE RIGHT OF ACTION GIVEN TO HIM.  IT SEEMS TO BE A FAIR
INFERENCE FROM THAT LANGUAGE THAT THE RIGHT OF ACTION GIVEN TO THE
INJURED EMPLOYEE PERSONAL REPRESENTATIVE WAS INTENDED TO BE
UNENFORCEABLE AFTER THE ENFORCEMENT AND SATISFACTION OF THE ONE GIVEN
TO THE EMPLOYEE HIMSELF." 

/10/  SIGNIFICANTLY, THE DEATH ON THE HIGH SEAS ACT, 46 U.S.C. 761,
THE ONLY FEDERAL STATUTE "THAT DEALS SPECIFICALLY AND EXCLUSIVELY WITH
ACTIONS FOR WRONGFUL DEATH.  . .FOR BREACHES OF THE DUTIES IMPOSED BY
GENERAL MARITIME LAW," MORAGNE V. STATES MARINE LINES, 398 U.S. 395,
407 (1970), HAS NOT BEEN INTERPRETED, AS THE FELA HAS BEEN, TO BAR
WRONGFUL-DEATH RECOVERY IN CASES WHERE THE DECEDENT HAS ALREADY
RECOVERED DURING HIS LIFETIME FOR HIS PERSONAL INJURIES. 

/11/  SEE, E.G., MICHIGAN C. R. CO. V. VREELAND, 227 U.S., AT 70;
THE S. S. BLACK GULL, 90 F.2D 619 (CA2 1937) (INTERPRETING THE DEATH ON
THE HIGH SEAS ACT); DUGAS V. NATIONAL AIRCRAFT CORP., 438 F.2D 1386
(CA3 1971) (INTERPRETING THE DEATH ON THE HIGH SEAS ACT); TIFFANY 153,
160; S. SPEISER, RECOVERY FOR WRONGFUL DEATH 3.4 (1966) (HEREAFTER
SPEISER); PROSSER 127, P. 906.  DAMAGES FOR LOSS OF SUPPORT HAVE ALSO
BEEN AWARDED CONSISTENTLY IN POST-MORAGNE MARITIME WRONGFUL-DEATH
ACTIONS.  SEE, E.G., DENNIS V. CENTRAL GULF S. S. CORP., 323 F.SUPP. 
943 (ED LA. 1971), AFF'D, 453 F.2D 137 (CA5 1972); PETITION OF UNITED
STATES STEEL CORP., 436 F.2D 1256 (CA6 1970); IN RE CAMBRIA S. S. CO.,
353 F.SUPP.  691 (ND OHIO 1973); MASCUILLI V. UNITED STATES, 343
F.SUPP.  439 (ED PA. 1972); IN RE SINCERE NAVIGATION CORP. 329 F.SUPP. 
652 (ED LA. 1971); PETITION OF CANAL BARGE CO., 323 F.SUPP.  805 (ND
MISS.  1971). 

/12/  TIFFANY 158 - 164; SPEISER 3.36, 3.40. 

/13/  MOORE-MCCORMACK LINES, INC. V. RICHARDSON, 295 F.2D 583 (CA2
1961); DUGAS V. NATIONAL AIRCRAFT CORP., SUPRA; CARLI V. NEW LONDON
FLYING SERVICE, INC., 1965 AMC 1644 (DC CONN. 1962). 

/14/  SUCH DAMAGES HAVE ALSO BEEN RECOVERED IN POST-MORAGNE MARITIME
WRONGFUL-DEATH ACTIONS.  SEE, E.G., DENNIS V. CENTRAL GULD S. S. CORP.,
SUPRA; PETITION OF UNITED STATES STEEL CORP., SUPRA; IN RE CAMBRIA S.
S. CO., SUPRA; MASCUILLI V. UNITED STATES, SUPRA; IN RE SINCERE
NAVIGATION CORP., SUPRA; PETITION OF CANAL BARGE CO., SUPRA. 

/15/  SEE, E.G., MICHIGAN C. R. CO. V. VREELAND, SUPRA, AT 71; MOORE
MCCORMACK LINES, INC. V. RICHARDSON, SUPRA; GAYDOS V. DOMABYL, 301 PA.
523, 152 A. 549 (1930). 

/16/  SEE, E.G., MICHIGAN C. R. CO. V. VREELAND, SUPRA, AT 71, 74;
CARLI V. NEW LONDON FLYING SERVICE, INC., SUPRA; ALDEN V. NORWOOD
ARENA, INC., 332 MASS. 267, 124 N.E. 2D 505 (1955); KROEGER V.
SAFRANEK, 165 NEB. 636, 87 N.W. 2D 221 (1957). 

/17/  LOSS OF SOCIETY MUST NOT BE CONFUSED WITH MENTAL ANGUISH OR
GRIEF, WHICH ARE NOT COMPENSABLE UNDER THE MARITIME WRONGFUL-DEATH
REMEDY.  THE FORMER ENTAILS THE LOSS OF POSITIVE BENEFITS, WHILE THE
LATTER REPRESENTS AN EMOTIONAL RESPONSE TO THE WRONGFUL DEATH.  THE
DIFFERENCE BETWEEN THE TWO IS WELL EXPRESSED AS FOLLOWS: 

"WHEN WE SPEAK OF RECOVERY FOR THE BENEFICIARIES' MENTAL ANGUISH, WE
ARE PRIMARILY CONCERNED, NOT WITH THE BENEFITS THEY HAVE LOST, BUT WITH
THE ISSUE OF COMPENSATING THEM FOR THEIR HARROWING EXPERIENCE RESULTING
FROM THE DEATH OF A LOVED ONE.  THIS REQUIRES A SOMEWHAT NEGATIVE
APPROACH.  THE FUNDAMENTAL QUESTION IN THIS AREA OF DAMAGES IS WHAT
DELETERIOUS EFFECT HAS THE DEATH, AS SUCH, HAD UPON THE CLAIMANTS?  IN
OTHER AREAS OF DAMAGE, WE FOCUS ON MORE POSITIVE ASPECTS OF THE INJURY
SUCH AS WHAT WOULD THE DECEDENT, HAD HE LIVED, HAVE CONTRIBUTED IN
TERMS OF SUPPORT, ASSISTANCE, TRAINING, COMFORT, CONSORTIUM, ETC.... 

"THE GREAT MAJORITY OF JURISDICTIONS, INCLUDING SEVERAL WHICH DO
ALLOW DAMAGES FOR OTHER TYPES OF NONPECUNIARY LOSS, HOLD THAT THE
GRIEF, BEREAVEMENT, ANXIETY, DISTRESS, OR MENTAL PAIN AND SUFFERING OF
THE BENEFICIARIES MAY NOT BE REGARED AS ELEMENTS OF DAMAGE IN A
WRONGFUL DEATH ACTION."  SPEISER 3.4, P. 223 (FOOTNOTES OMITTED). 

/18/  LORD CAMPBELL'S ACT, WHICH, BY ITS TERMS, ALLOWS THE JURY TO
AWARD "SUCH DAMAGES AS THEY MAY THINK PROPORTIONAL TO THE INJURY," WAS
INTERPRETED TO PERMIT RECOVERY ONLY FOR "PECUNIARY LOSSES."  BLAKE V.
MIDLAND R. CO., 18 Q. B. (AD. & E., N. S.)  *93, 118 ENG. REP. 35
(1852).  MOST AMERICAN COURTS, INTERPRETING SIMILAR WRONGFUL-DEATH
STATUTES, FOLLOWED SUIT, SEE, E.G., MICHIGAN C. R. CO. V. VREELAND,
SUPRA, AT 70.  SEE ALSO SPEISER 3.1. 

/19/  A LIST OF THE STATES THAT HAVE SUCH STATUTES AND REPRINTS OF
THE INDIVIDUAL STATUTES MAY BE FOUND IN SPEISER 3.1, P. 58 N. 5, AND
APPENDIX. 

/20/  SEE, E.G., MIDDLETON V. LUCKENBACH S. S. CO., INC., 70 F.2D
326 (CA2 1934); FIRST NAT. BANK IN GREENWICH V. NATIONAL AIRLINES,
INC., 288 F.2D 621 (CA2 1961). 

/21/  THE VARIOUS STATE AND FEDERAL WRONGFUL-DEATH STATUTES HAVE
BEEN CLOSELY CANVASSED AND CATALOGUED IN SPEISER (SUPP. 1972) AND
COMMENT, WRONGFUL DEATH DAMAGES IN NORTH CAROLINA, 44 N. C. L. REV. 402
(1966).  THOSE SOURCE INDICATE THAT 27 OF THE 44 STATE AND TERRITORIAL
WRONGFUL-DEATH STATUTES WHICH MEASURE DAMAGES BY THE LOSS SUSTAINED BY
THE BENEFICIARIES, PERMIT RECOVERY FOR LOSS OF SOCIETY.  ALASKA,
ARKANSAS, FLORIDA, HAWAII, KANSAS, MISSISSIPPI, NEVADA, WEST VIRGINIA,
WISCONSIN, AND WYOMING HAVE STATUTES EXPRESSLY PROVIDING FOR SUCH
DAMAGES.  ARIZONA, IDAHO, LOUISIANA, NEW MEXICO, PUERTO RICO, SOUTH
CAROLINA, UTAH, VIRGINIA, AND WASHINGTON HAVE EQUIVOCAL STATUTORY
LANGUAGE THAT HAS BEEN JUDICIALLY INTERPRETED TO INCLUDE RECOVERY FOR
LOSS OF SOCIETY.  FINALLY, THE WRONGFUL-DEATH STATUTES OF CALIFORNIA,
DELAWARE, MICHIGAN, MINNESOTA, MONTANA, PENNSYLVANIA, TEXAS, AND THE
VIRGIN ISLANDS, WHICH EITHER EXPRESSLY OR BY JUDICIAL CONSTRUCTION
LIMIT RECOVERY TO PECUNIARY LOSSES, HAVE BEEN JUDICIALLY INTERPRETED,
NEVERTHELESS, TO PERMIT RECOVERY FOR THE PECUNIARY VALUE OF THE
DECEDENT'S SOCIETY. 

/22/  WE RECOGNIZE, OF COURSE, THAT OUR DECISION PERMITS RECOVERY OF
DAMAGES NOT GENERALLY AVAILABLE UNDER THE DEATH ON THE HIGH SEAS ACT. 
TRADITIONALLY, HOWEVER, "CONGRESS HAS LARGELY LEFT TO THIS COURT THE
RESPONSIBILITY FOR FASHIONING THE CONTROLLING RULES OF ADMIRALTY LAW,"
FITZGERALD V. UNITED STATES LINES CO., 374 U.S. 16, 20 (1963).  THE
SCOPE AND CONTENT OF THE GENERAL MARITIME REMEDY FOR WRONGFUL DEATH
ESTABLISHED IN MORAGNE IS NO EXCEPTION.  AFTER COMBING THE LEGISLATIVE
HISTORY OF THE DEATH ON THE HIGH SEAS ACT, WE CONCLUDED IN MORAGNE THAT
CONGRESS EXPRESSED "NO INTENTION ... OF FORECLOSING ANY NONSTATUTORY
FEDERAL REMEDIES THAT MIGHT BE FOUND APPROPRIATE TO EFFECTUATE THE
POLICIES OF GENERAL MARITIME LAW ."  398 U.S., AT 400.  NOTHING IN THE
LEGISLATIVE HISTORY OF THE ACT SUGGESTS THAT CONGRESS INTENTED THE
ACT'S STATUTORY MEASURE OF DAMAGES TO PRE-EMPT ANY ADDITIONAL ELEMENTS
OF DAMAGE FOR A MARITIME WRONGFUL-DEATH REMEDY WHICH THIS COURT MIGHT
DEEM "APPROPRIATE TO EFFECTUATE THE POLICIES OF GENERAL MARITIME LAW." 
TO THE CONTRARY, CONGRESS' INSISTENCE THAT THE ACT NOT EXTEND TO
TERRITORIAL WATERS, SEE S. REP. NO. 216, 66TH CONG., 1ST SESS., 3
(1919); H. R. REP. NO. 674, 66TH CONG., 2D SESS., 3 (1920); 59 CONG.
REC. 4482 - 4486 (1920), INDICATES THAT CONGRESS WAS NOT CONCERNED THAT
THERE BE A UNIFORM MEASURE OF DAMAGES FOR WRONGFUL DEATHS OCCURING
WITHIN ADMIRALITY'S JURISIDICTION, FOR IN MANY INSTANCES STATE WRONGFUL
DEATH STATUTES EXTENDING TO TERRITORIAL WATERS PROVIDED A MORE LIBERAL
MEASURE OF DAMAGES THAN THE DEATH ON THE HIGH SEAS ACT.  SEE GREENE V.
VANTAGE S. S. CORP., 466 F.2D 159 (CA4 1972). 

/23/  INSOFAR AS SIMPSON V. KNUTSEN, 444 F.2D 523 (CA9 1971), AND
PETITION OF UNITED STATES STEEL CORP., 436 F.2D 1256 (CA6 1970), ARE
INCONSISTENT WITH OUR HOLDING, WE DISAGREE. 

/24/  OF COURSE, THE MARITIME WRONGFUL-DEATH REMEDY IS AN ADMIRALTY
ACTION ORDINARILY TRIED TO THE COURT AND NOT A JURY.  THERE ARE
INSTANCES, HOWEVER, WHERE THE ADMIRALTY ACTION MAY BE JOINED WITH A
CIVIL CLAIM, FOR EXAMPLE, A CLAIM BASED UPON THE JONES ACT, SEE
MORAGNE, 398 U.S., AT 396 N. 12; PEACH V. FIDALGO ISLAND PACKING CO.,
419 F.2D 371 (CA9 1969), OR A STATE SURIVIVAL STATUTE, SEE DUGAS V.
NATIONAL AIRCRAFT CORP., 438 F.2D 1386 (CA3 1971), PETITION OF GULF OIL
CORP., 172 F.SUPP.  911 (SDNY 1959), CF, KERNAN V. AMERICAN DREDGING
CO., 355 U.S. 426, 430 N. 4 (1958), AND A JURY TRIAL MAY BE REQUESTED. 

/25/  SEE, E.G., YOUNG V. PRIDD, 3 CRO.  CAR.  89, 79 ENG. REP. 679
(EX. CH. 1627); HYDE V. SCYSSOR, 2 CRO.  JAC.  538, 79 ENG. REP. 462
(K. B. 1619); MOWRY V. CHANEY, 43 IOWA 609 (1876); GUEVIN V. MANCHESTER
ST. R., 78 N. H. 289, 99 A. 298 (1916); HOLBROOK, THE CHANGE IN THE
MEANING OF CONSORTIUM, 22 MICH. L. REV. 1 (1923); LIPPMAN, THE
BREAKDOWN OF CONSORTIUM, 30 COL. L. REV. 651 (1930); NOTE, JUDICIAL
TREATMENT OF NEGLIGENT INVASION OF CONSORTIUM, 61 COL. L. REV. 1341
(1961).  DAMAGES FOR LOSS OF CONSORTIUM HAVE BEEN AWARDED BY COURTS OF
ADMIRALTY AS WELL.  SEE N.Y. & LONG BRANCH STEAMBOAT CO. V. JOHNSON,
195 F. 740 (CA3 1912); 1 E. BENEDICT, ADMIRALTY 366 (6TH ED. 1940)
("WHEN A PERSONAL INJURY TO A WIFE IS MARITIME BY LOCALITY, HER HUSBAND
MAY RECOVER HIS DAMAGES FOR LOSS OF HER SERVICES, LOSS OF CONSORTIUM,
ETC., IN ADMIRALTY").  BUT SEE IGNERI V. CIE.  DE TRANSPORTS
OCEANIQUES, 323 F.2D 257 (CA2 1963).     /26/  SEE, E.G., HITAFFER V.
ARGONNE CO., 87 U.S. APP. D.C. 57, 183 F.2D 811 (1950); PROSSER 125, P.
895; NOTE, JUDICIAL TREATMENT OF NEGLIGENT INVASION OF CONSORTIUM, 61
COL. L. REV. 1341 (1961).     /27/  SEE SPEISER 3.49; COMMENT, WRONGFUL
DEATH DAMAGES IN NORTH CAROLINA, 44 N.C. L. REV. 402, 419 - 420
(1966). 

/28/  FUNERAL EXPENSES HAVE BEEN AWARDED IN POST-MARAGNE WRONGFUL
DEATH ACTIONS.  SEE, E.G., GREENE V. VANTAGE S. S. CORP., 466 F.2D 159
(CA4 1972); DENNIS V. CENTRAL GULF S. S. CORP., 323 F.SUPP.  943 (ED
LA. 1971), AFF'D, 453 F.2D 137 (CA5 1972); MASCUILLI V. UNITED STATES,
343 F.SUPP.  439 (ED PA. 1972); IN RE SINCERE NAVIGATION CORP., 329
F.SUPP.  652 (ED LA. 1971). 

/29/  THE COURT OF APPEALS BELOW RECOGNIZED THE POTENTIAL PROBLEM OF
DOUBLE RECOVERY AND COMMITTED "TO THE DISCRETION OF THE TRIAL COURT THE
TASK OF MAKING AN APPROPRIATE DEDUCTION FROM OR ACCOMMODATION OF ANY
JUDGMENT TO WHICH MRS. GAUDET MIGHT OTHERWISE BE ENTITLED, TO INSURE
THAT NO DOUBLE RECOVERY RESULTS.  CF. BILLIOT V. SEWART, 382 F.2D 662
(5TH CIR. 1967); PROSSER, (LAW OF TORTS,) AT 934 - 935," 463 F.2D, AT
1333 N. 1.  IN OUR VIEW, APPLICATION OF COLLATERAL ESTOPPEL PRINCIPLES
MAKES RESORT TO THEORIES OF SETOFF OR RECOUPMENT GENERALLY
UNNECESSARY. 

/30/  IF THE DEPENDENTS' TOTAL SUPPORT RECEIVED FROM THE DECEDENT
EXCEEDS THE FUTURE WAGES PAID TO THE DECEDENT BY THE TORT-FEASOR, THE
DEPENDENTS WILL HAVE AN ACTIONABLE CAUSE FOR SUPPORT AGAINST THE
TORTFEASOR FOR THE DIFFERENCE.  IN THAT CIRCUMSTANCE, IF A SPECIAL
VERDICT WAS NOT RENDERED IN THE DECEDENT'S ACTION SPECIFYING THE AMOUNT
OF DAMAGES AWARDED FOR FUTURE WAGES, IT MAY BECOME NECESSARY IN THE
DEPENDENTS' ACTION TO DETERMINE WHAT PORTION OF THE DECEDENT'S LUMP-SUM
RECOVERY FOR HIS INJURIES WAS ATTRIBUTABLE TO FUTURE WAGES.  THIS IN NO
WAY CONFLICTS WITH OUR HOLDING THAT THE DEPENDENTS WILL BE ESTOPPED
FROM RELITIGATING THR AMOUNT OF FUTURE WAGES; IT IS MERELY AN
ACKNOWLEDGMENT THAT THE AMOUNT OF THE WAGE RECOVERY IN THE FIRST ACTION
MAY HAVE TO BE CLARIFIED IN THE SECOND. 

/31/  SEE VESTAL, PRECLUSION/RES JUDICATA VARIABLES:  PARTIES, 50
IOWA L. REV. 27, 63 - 64 (1964); NOTE, DEVELOPMENTS IN THE LAW--RES
JUDICATA, 65 HARV. L. REV. 818, 855 - 856 (1952); RESTATEMENT OF
JUDGMENTS 92 (1942) DEALS EXPRESSLY WITH WRONGFUL-DEATH ACTIONS AND
PROVIDES THAT, EVEN IN CASES WHERE THE WRONGFUL-DEATH ACTION IS NOT
PREMISED UPON THE DECEDENT'S HAVING AN EXTANT CAUSE OF ACTION FOR
PERSONAL INJURIES AT THE TIME OF HIS DEATH, "THE RULES OF RES JUDICATA
APPLY IN ACTIONS BROUGHT AFTER HIS DEATH AS TO ISSUES LITIGATED IN AN
ACTION BROUGHT BY HIM AND TERMINATING IN A JUDGMENT BEFORE HIS DEATH,"
ID., COMMENT ON SUBSECTION (1). 

/32/  THIS RULE APPEARS TO HAVE BEEN REJECTED IN ENGLAND IN FAVOR OF
COMPENSATING A PERSONAL-INJURY VICTIM ON THE BASIS OF HIS LIFE
EXPENTANCY AFTER THE ACCIDENT.  SEE OLIVER V. ASHMAN, (1961) 3 W. L. R.
669 (C.A.); FLEMING, THE LOST YEARS:  A PROBLEM IN THE COMPUTATION AND
DISTRICUTION OF DAMAGES, 50 CALIF. L. REV. 598, 600 (1962).  UNDER THE
ENGLISH RULE, THE ACCIDENT VICTIM IS NOT PERMITTED TO RECOVER LOST
WAGES FOR THE DIFFERENCE IN YEARS BETWEEN HIS PRE-ACCIDENT AND POST
ACCIDENT LIFE EXPECTANCY. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
STEWART, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

THE COURT TODAY REWRITES SEVERAL AREAS OF THE ADMIRALTY LAW OF
WRONGFUL DEATH.  IN HOLDING THAT A WRONGFUL-DEATH ACTION MAY BE BROUGHT
ALTHOUGH THE DECEDENT HAS PREVIOUSLY RECOVERED IN HIS OWN SUIT BASED ON
THE SAME WRONGFUL ACT, THE COURT DISREGARDS IN MAJOR BODY OF MARITIME
AND STATE LAW.  THE MAJORITY OPINION ALSO OPENS UP AN AREA OF
SENTIMENTAL DAMAGES THAT HAS NOT BEEN ALLOWED UNDER TRADITIONAL
ADMIRALTY DOCTRINE.  IT HOPES TO PREVENT DOUBLE RECOVERY THROUGH A
NOVEL APPLICATION OF COLLATERAL ESTOPPEL PRINCIPLES, WHICH RESTS IN
TURN ON THE UNPRECEDENTED CONCEPT THAT A SERIOUSLY INJURED PERSON ACTS
AS A FIDUCIARY FOR AN UNDEFINED CLASS OF POTENTIAL BENEFICIARIES WITH
REGARD TO HIS OWN RECOVERY IN HIS OWN PERSONAL-INJURY ACTION.  GIVEN
THE SWEEP OF THE MAJORITY'S APPROACH, THE UPSHOT IN MANY AREAS WILL BE
A NEARLY TOTAL NULLIFICATION OF THE CONGRESSIONAL ENACTMENTS PREVIOUSLY
GOVERNING MARITIME WRONGFUL DEATH.  EXCEPT FOR A TECHNICAL JOINDER OF
COUNTS TO OBTAIN A JURY TRIAL AND THUS TO MAXIMIZE THE BENEFITS
PROMISED BY THE COURT'S OPINION, NO ONE ENTITLED TO RELY ON THE
ADMIRALTY DOCTRINE OF UNSEAWORTHINESS WILL, AFTER TODAY, SEEK RELIEF
UNDER THE FEDERAL MARITIME WRONGFUL-DEATH STATUTES.  SEVERAL
LIMITATIONS BUILT INTO THISE CONGRESSIONAL ENACTMENTS HAVE BEEN SWEPT
ASIDE BY THE MAJORITY'S DECISION. 

IN REACHING THESE RESULTS, THE MAJORITY PURPORTS TO APPLY MORAGNE V.
STATES MARINE LINES, 398 U.S. 375 (1970).  IT IS TRUE THAT MORAGNE
OVERRULED THE HARRISBURG, 119 U.S. 199 (1886), AND HELD THAT AN ACTION
FOR DEATH CAUSED BY A VIOLATION OF MARITIME DUTIES WOULD LIE UNDER THE
GENERAL LAW OF ADMIRALTY.  BUT MORAGNE DOES NOT SUPPORT THE COURT'S FOR
REACHING HOLDINGS IN THIS CASE.  INDEED, MORAGNE, WHICH WAS ESSENTIALLY
A RESPONSE TO A GAP IN MARITIME REMEDIES FOR DEATHS OCCURRING IN STATE
TERRITORIAL WATERS, EXPLICITLY COUNSELS AGAINST THE SORT OF TABULA RASA
RESTRUCTURING OF THE LAW OF ADMIRALTY UNDERTAKEN BY THE MAJORITY. 
WRITING FOR THE COURT, MR. JUSTICE HARLAN STRESSED THE NEED TO "ASSURE
UNIFORM VINDICATION OF FEDERAL POLICIES...."  398 U.S., AT 401.  HE
ESCHEWED "THE FASHIONING OF A WHOLE NEW BODY OF FEDERAL LAW...," ID.,
AT 405, BELIEVING THAT THE LOWER COURTS WOULD HAVE SLIGHT DIFFICULTY
"IN APPLYING ACCEPTED MARITIME LAW TO ACTIONS FOR WRONGFUL DEATH." 
ID., AT 406.  HE STATED THAT THOSE COURTS WOULD FIND "PERSUASIVE
ANALOGY FOR GUIDANCE" IN THE ACCUMULATED EXPERIENCES UNDER THE STATE
WRONGFUL-DEATH STATUTES AND THE DEATH ON THE HIGH SEAS ACT, 46 U.S.C.
761 ET SEQ., 398 U.S., AT 408.  HE EMPHASIZED THE CONSISTENCY OF THE
COURT'S HOLDING WITH THE CONGRESSIONAL PURPOSES BEHIND THE JONES ACT,
46 U.S.C. 688.  398 U.S., AT 400 - 402. 

THE COURT HAS NOW REJECTED THESE GUIDELINES SO RECENTLY LAID DOWN IN
MORAGNE.  DISREGARDING THE SOURCE OF LAW ENDORSED BY MORAGNE, AS WELL
AS THE CONCERN FOR UNIFORMITY EXPRESSED IN THAT OPINION, THE COURT HAS
FASHIONED A NEW SUBSTANTIVE RIGHT OF RECOVERY IN CONFLICT WITH
"ACCEPTED MARITIME LAW"  AND A NEW BODY OF LAW WITH REGARD TO THE
ELEMENTS OF DAMAGES RECOVERABLE IN ADMIRALTY WRONGFUL-DEATH ACTIONS. 
IN MY VIEW, THESE UNPRECEDENTED EXTENSIONS OF ADMIRALTY LAW EXHIBIT
LITTLE DEFERENCE FOR STARE DECISIS OR, INDEED, FOR ENUNCIATED
CONGRESSIONAL POLICY.  I ALSO BELIEVE THESE NEW DOCTRINES ARE UNSOUND
AS A MATTER OF PRINCIPLE, WILL CREATE DIFFICULTY AND CONFUSION IN THE
LITIGATION OF ADMIRALTY CASES, AND ARE VERY LIKELY TO RESULT IN
DUPLICATIVE RECOVERIES. 

        I 

LONG ACCEPTED LAW UNDER THE JONES ACT, /1/  ONE OF THE TWO FEDERAL
MARITIME WRONGFUL-DEATH STATUTES, /2/  DOES NOT COUNTENANCE THE RESULT
REACHED BY THE MAJORITY TODAY.  THE JONES ACT "CREATED A FEDERAL RIGHT
OF ACTION FOR THE WRONGFUL DEATH OF A SEAMAN BASED ON THE STATUTORY
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT (FELA)."  KERNAN V.
AMERICAN DREDGING CO., 355 U.S. 426, 429 (1958).  SINCE THE FELA, 45
U.S.C. 51 - 60, IS THE "REGIME WHICH THE JONES ACT MADE APPLICABLE TO
SEAMEN...,"  /3/  THE "ENTIRE JUDICIALLY DEVELOPED DOCTRINE OF
LIABILITY" UNDER THE FELA GOVERNS A JONES ACT CASE.  KERNAN, SUPRA, AT
439.  AN UNINTERRUPTED LINE OF FELA AND JONES ACT CASES GOING BACK A
HALF CENTURY HOLDS THAT IF THE DECEDENT REDUCES HIS CLAIM TO SETTLEMENT
OR JUDGMENT PROIR TO HIS DEATH, OR OTHERWISE ENTINGUISHES HIS RIGHT TO
PURSUE THE CLAIM, NO SUBSEQUENT WRONGFUL-DEATH ACTION MAY BE BROUGHT. 
SEE, E.G., MELLON V. GOODYEAR, 277 U.S. 335 (1928); FLYNN V. NEW YORK
N. H. & H. R. CO., 283 U.S. 53 (1931); WALROD V. SOUTHERN PACIFIC CO.,
447 F.2D 930 (CA9 1971); SEABOARD AIR LINE R. CO. V. OLIVER, 261 F. 1
(CA5 1919); GILMORE V. SOUTHERN R. CO., 229 F.SUPP.  198 (ED LA. 1964);
PURVIS V. LUCKENBACH S. S. CO., 93 F.SUPP.  271 (SDNY 1949). 

MELLON AND ITS PROGENY HOLD UNEQUIVOCALLY THAT A JUDGMENT,
SETTLEMENT, OR SEMILARLY CONCLUSIVE EVENT WITH REGARD TO THE DECEDENT'S
OWN RIGHT TO SEEK RECOVERY FOR HIS PERSONAL INJURIES "(PRECLUDES) ANY
REMEDY BY THE PERSONAL REPRESENTATIVE BASED UPON THE SAME WRONGFUL
ACT."  MELLON, SUPRA, AT 344.  THE COURT IN MELLON QUOTED WITH APPROVAL
THE FOLLOWING LANGUAGE FROM A STATE COURT OPINION: 

     "'"WHETHER THE RIGHT OF ACTION IS A TRANSMITTED RIGHT OR AN

  ORIGINAL RIGHT, WHEHTER IT BE CREATED BY A SURVIVAL STATUTE OR BY

  A STATUTE CREATING AN INDEPENDENT RIGHT, THE GENERAL CONSENSUS OF

OPINION SEEMS TO BE THAT THE GIST AND FOUNDATION OF THE RIGHT IN

  ALL CASES IS THE WRONGFUL ACT, AND THAT FOR SUCH WRONGFUL ACT BUT

  ONE RECOVERY SHOULD BE HAD, AND THAT IF THE DECEASED HAD RECEIVED

  SATISFACTION IN HIS LIFETIME, EITHER BY SETTLEMENT AND ADJUSTMENT

  OR BY ADJUDICATION IN THE COURT, NO FURTHER RIGHT OF ACTION

  EXISTED."'"  ID., AT 345.  (CITATION OMITTED.) 

THE MELLON RULE DOES NOT REST ON A DISAGREEMENT IN PRINCIPLE WITH
THE MAJORITY'S VIEW, ANTE, AT 577 - 578, THAT A SINGLE WRONG IS CAPABLE
OF PRODUCING SEPARATE AND DISTINCT INJURIES, THOSE TO THE DECEDENT AND
THOSE TO HIS BENEFICIARIES.  INDEED, THE COURT IN MELLON EXPLICITLY
RECOGNIZED THAT DISTINCTION.  IT NOTED THAT ALTHOUGH ORIGINATING IN THE
SAME WRONGFUL ACT, THERE ARE TWO SEPARATE AND DISTINCT CLAIMS, ONE
ASSERTABLE BY THE INJURED PERSON AND THE OTHER UPON HIS DEATH BY HIS
PERSONAL REPRESENTATIVE OF DEPENDENTS.  277 U.S., AT 340, 342. 
NEVERTHELESS, MELLON AND UNIFORMLY CONSISTENT JONES ACT AND FELA CASES
THAT HAVE FOLLOWED IT HOLD THAT WHEN THE DECEDENT EXTINGUISHES HIS OWN
CLAIM HE SIMULTANEOUSLY FORECLISES ANY WRONGFUL-DEATH ACTION.  AS MR.
JUSTICE HOLMES PUT IT FOR A UNANIMOUS COURT IN FLYNN, SUPRA, THE
WRONGFUL-DEATH ACTION IS "DERIVATIVE AND DEPENDENT UPON THE CONTINUANCE
OF A RIGHT IN THE INJURED EMPLOYEE AT THE TIME OF HIS DEATH."  283
U.S., AT 56 (CITATION OMITTED).  THUS, THE COURT'S OPINION IN THIS CASE
CREATES A SQUARE CONFLICT WITH ONE OF THE MAJOR BODIES OF MARITIME LAW
THAT MORAGNE VIEWED AS A SOURCE OF GUIDANCE. 

THE COURT IMPLICATION THAT THE DEATH ON THE HIGH SEAS ACT /4/
SUPPORTS ITS DEPARTURE FROM MELLON, ANTE, AT 583 N. 10, IS AT BEST
CONJECTURAL.  IN FACT, NO CASES ADDRESSING THE SITUATION PRESENTED HERE
APPEAR TO HAVE ARISEN UNDER THAT ACT.  CONCEIVABLY SUCH A CASE COULD
ARISE, BECAUSE THE HIGH SEAS ACT BY ITS TERMS COVERS DEATHS CAUSED BY
INJURIES INFLICTED AT SEA, NOT SIMPLY DEATHS OCCURRING ON THE HIGH
SEAS.  CF. LACEY V. L. W. WIGGINS AIRWAYS, INC., 95 F.SUPP.  916 (MASS.
1951).  /5/  THUS, IT WOULD BE POSSIBLE IN THEORY FOR A PERSON INJURED
AT SEA TO RECOVER FOR HIS PERSONAL INJURIES AND, FOLLOWING HIS DEATH,
FOR HIS SURVIVORS TO ATTEMPT TO BRING SUIT UNDER THE HIGH SEAS ACT. 
BUT CERTAINLY THE ACT WOULD NOT BE READ AS ALLOWING THE SUBSEQUENT
ACTION.  SUCH A RESULT WOULD CONFLICT WITH THE MELLON LINE OF CASES
UNDER THE JONES ACT AND THE FELA, PRODUCING PRECISELY THE LACK OF
UNIFORMITY NORMALLY SOUGHT TO BE AVOIDED IN ADMIRALTY.  MOREOVER, THE
HIGH SEAS ACT CONTAINS A SUBSTITUTION PROVISION, 46 U.S.C. 765, THAT BY
IMPLICATION FORBIDS A WRONGFUL-DEATH ACTION FOLLOWING A DECEDENT'S
JUDGMENT.  SECTION 765 PROVIDES THAT IF A PERSON WHO SUFFERS INJURIES
WITHIN THE SCOPE OF THE ACT DIES DURING THE PENDENCY OF HIS OWN
PERSONAL INJURY ACTION, THAT ACTION MAY BE TRANSFORMED BY A PERSONAL
REPRESENTATIVE INTO A WRONGFUL-DEATH ACTION COUNTENENCED BY THE ACT. 
/6/  SURELY THIS SUBSTITUTION PROVISION EVIDENCES A CONGRESSIONAL
RECOGNITION THAT ONLY ONE ACTION OR THE OTHER SHOULD BE ALLOWED TO
PROCEED TO JUDGMENT. 

THE COURT'S REFERENCE IN MORAGNE TO THE "STRONG CONCERN FOR
UNIFORMITY"  IN ADMIRALY LAW, 398 U.S., AT 401, OFTEN REPEATED AND
OFTEN RELATED TO CONGRESSIONAL POLICIES UNDERLYING THE JONES ACT AND
THE DEATH ON THE HIGH SEAS ACT, ID., AT 396 N. 12, 401 - 402, WAS NOT
AN EXPRESSION OF CONCERN SOLELY FOR INTELLECTUAL CONSISTENCY.  "SUCH
UNIFORMITY NOT ONLY WILL FURTHER THE CONCERNS OF BOTH OF THE ... ACTS
BUT ALSO WILL GIVE EFFECT TO THE CONSTITUTIONALLY BASED PRINCIPLE THAT
FEDERAL A MIRALTY LAW SHOULD BE 'A SYSTEM OF LAW COEXTENSIVE WITH, AND
OPERATING UNIFORMLY IN, THE WHOLE COUNTRY.'  THE LOTTAWANNA, 21 WALL. 
558, 575 (1875)."  ID., AT 401 - 402.  BUT THE LACK OF UNIFORMITY
PRODUCED BY THE MAJORITY'S HOLDING SHOULD BE EVIDENT.  FOR EXAMPLE,
EHETHER A SEAMAN'S INJURIES OCCUR ON LAND OR AT SEA WILL BE
DETERMINATIVE UNDER THE MAJORITY'S APPROACH.  IF ON LAND, THE SEAMAN
WILL HAVE THE JONES ACT AS HIS ADMIRALTY-RELATED REMEDY.  /7/  UNDER
THAT ACT AND THE MELLON LINE OF CASES HIS OWN PERSONAL-INJURY ACTION
WILL FORECLOSE A SUBSEQUENT WRONGFUL-DEATH ACTION--A MISFORTUNE THAT
WOULD NOT HAVE BEFALLEN HIM AND HIS SURVIVORS IF ONLY HE HAD BEEN LUCKY
ENOUGH TO HAVE BEEN INJURED AT SEA.  THIS ANOMALY IS NOT SOMETHING, I
SUSPECT, THE COURT WILL LONG ABIDE.  SINCE "(IT HAS BEEN CONSISTENTLY
TRUE IN THIS BRANCH OF THE LAW THAT WHATEVER A SEAMAN CAN GET UNDER ONE
THEORY HE CAN SOONER OR LATER GET UNDER ALL THE OTHERS...," /8/  THE
COURT'S HOLDING UNDOUBTEDLY PORTENDS AN EXPRESS OVERRULING OF MELLON
AND ITS SUCCESSORS, CASES THAT THE COURT BYPASSES TODAY.     ASIDE FROM
THE DISUNITY IN THE LAW OF ADMIRALTY INHERENT IN ITS OPINION, I FAIL TO
SEE HOW THE COURT CAN SQUARE ITS SWEEPING APPROACH WITH MORAGNE'S
RELIANCE ON AND ADMONITION TO DRAW BY ANALOGY FROM THE FEDERAL
STATUTES.  E.G., 398 U.S., AT 400 - 402, 408.  MORAGNE ENVISIONED A
PROCESS OF ACCOMMODATION WITH THOSE STATUTES, NOT THEIR ABRUPT AND NEAR
TOTAL FORCED OBSOLESCENCE.  IN THIS REGARD, IT MIGHT BE NOTED THAT THE
COURT HAS STILL NOT RESOLVED MANY OF THE PRACTICAL QUESTIONS LEFT OPEN
IN MORAGNE, SUCH AS HOW TO DEFINE THE CLASS OF BENEFICIARIES OR AN
APPROPRIATE LIMITATION PERIOD.  PRESUMABLY, IN RESOLVING SUCH QUESTIONS
THE LOWER COURTS ARE TO CONTINUE TO RELY ON THE ADMIRALTY WRONGFUL
DEATH STATUTES.  NOW THEY ARE PLACED IN THE INTERESTING POSITION OF
ANALOGIZING TO STATUTES UNDER WHICH THE VERY CLAIM BEFORE THEM WOULD BE
BLOCKED. 

        II 

THE COURT IN MORAGNE ALSO COUNSELED THE LOWER COURTS TO DRAW BY
ANALOGY FROM THE CASE LAW UNDER THE STATE WRONGFUL-DEATH STATUTES.  398
U.S., AT 408.  UNDER THE GREAT MAJORITY OF THOSE STATUTES, WHETHER OF
SURVIVAL OR TRUE DEATH ACT CHARACTER, MRS. GAUDET'S CAUSE OF ACTION
WOULD HAVE BEEN FORECLOSED BY HER HUSBAND'S RECOVERY.  /9/  THE
RESTATEMENT OF TORTS IS ALSO IN DIRECT CONFLICT WITH THE POSITION TAKEN
BY THE COURT: 

     "ALTHOUGH THE DEATH STATUTES CREATE A NEW CAUSE OF ACTION,
BOTH

  THEY AND THE SURVIVAL STATUTES ARE DEPENDENT UPON THE RIGHTS OF

THE DECEASED.  HENCE WHERE NO ACTION COULD HAVE BEEN BROUGHT BY

  THE DECEASED HAD HE NOT BEEN KILLED, NO RIGHT OF ACTION EXISTS. 

  LIKEWISE A RELEASE BY THE DECEASED OR A JUDGMENT EITHER IN HIS

  FAVOR OR, IF WON ON THE MERITS, IN FAVOR OF THE DEFENDENT, BARS

  AN ANCTION AFTER HIS DEATH...."  /10/ 

BECAUSE OF THE LIKELIHOOD OF DOUBLE RECOVERY AND THE THREAT TO
REPOSE INHERENT IN THE MAJORITY'S HOLDING, SEVERAL LEADING COMMENTATORS
ALSO FAVOR THE MAJORITY RULE UNDER THE STATE WRONGFUL-DEATH STATUTES. 
/11/  THIS IS PARTICULARLY TRUE WHERE, AS HERE, THE DECESED IN HIS OWN
ACTION HAS RECOVERED HIS LOSS OF EARNINGS OVER HIS PRE-ACCIDENT LIFE
EXPECTANCY.  /12/  EVEN THOSE OPPOSED TO THE MAJORITY POSITION UNDER
STATE LAW RECOGNIZE THE "FORCE" OF THAT VIEW IN SUCH A CASE.  /13/

  III 

THE COURT DEVOTES A MAJOR PORTION OF ITS OPINION TO THE ELEMENTS OF
DAMAGES RECOVERABLE UNDER MORAGNE.  ANTE, AT 584 - 591.  IN PARTICULAR,
THE COURT EMBRACES THE COURT OF APPEALS' SUGGESTION, 463 F.2D 1331,
1333 (CA5 1972), THAT MRS. GAUDET IS ENTITLED TO SEEK DAMAGES FOR LOSS
OF "SOCIETY,"  INCLUDING LOVE, AFFECTION, CARE, ATTENTION,
COMPANIONSHIP, COMFORT, AND PROTECTION.  ANTE, AT 585 - 590.  ALTHOUGH
I WOULD NOT OTHERWISE ADDRESS THE QUESTION OF DAMAGES BECAUSE I BELIEVE
THAT NO CAUSE OF ACTION EXISTS HERE, I THINK IT IMPORTANT TO NOTE THAT
THE COURT'S HOLDING THAT LOSS OF SOCIETY MAY BE RECOVERED IS A CLEAR
EXAMPLE OF THE MAJORITY'S REPUDIATION OF THE CONGRESSIONAL PURPOSES
EXPRESSED IN THE TWO FEDERAL MARITIME WRONGFUL-DEATH STATUTES.  /14/
THE TRADITIONAL ADMIRALTY VIEW IS THAT SUCH NONPECUNIARY DAMAGES ARE
NOT RECOVERABLE UNDER THE DEATH ON THE HIGH SEAS ACT AND THE JONES
ACT. 

THE DEATH ON THE HIGH SEAS ACT BY ITS TERMS RESTRICTS RECOVERY TO
PECUNIARY LOSSES, /15/  A RESTRICTION THE LOWER FEDERAL COURTS HAVE
CONSISTENTLY READ AS EXCLUDING LOSS OF CONSORTIUM AND SIMILAR
NONPECUNIARY INJURIES TO PERSONAL RELATIONSHIP, AFFECTIONS, AND
SENTIMENTS.  /16/  BECAUSE OF ITS RELATIONSHIP TO THE FELA AND ITS
OVERLAPPING COVERAGE WITH THE DEATH ON THE HIGH SEAS ACT, THE JONES ACT
ALSO HAS BEEN READ AS FORBIDDING RECOVERY OF THE SENTIMENTAL LOSSES
APPROVED BY THE COURT TODAY.  /17/  MOREOVER, THESE WELL-ESTABLISHED
DAMAGES PRINCIPLES UNDER THE TWO FEDERAL MARITIME WRONGFUL-DEATH
STATUTES, COUPLED WITH A CONCERN FOR UNIFORMITY IN ADMIRALTY LAW, HAVE
LED MOST LOWER COURTS THAT HAVE TAKEN PART IN THE CONTINUING
DEVELOPMENT OF THE MORAGNE CAUSE OF ACTION TO CONCLUDE THAT THE
AFFECTION-RELATED DAMAGES ENDORSED BY THE COURT ARE NOT RECOVERABLE
UNDER MORAGNE.  /18/  THESE COURTS HAVE HEEDED MORAGNE'S ADMONITION NOT
TO FASHION A WHOLE NEW BODY OF LAW, YET THEIR HOLDINGS ARE DISAPPROVED
BY THE MAJORITY.  ANTE, AT 588 N. 23. 

        IV 

THE REASONS UNDERLYING THE EXTENSIVE STATE AND ADMIRALTY PRECEDENT
CONTRARY TO THE COURT'S HOLDING THAT THIS ACTION MAY BE BROUGHT ARE NOT
DIFFICULT TO DISCERN.  THE MAJORITY'S STATEMENT THAT THIS PRECEDENT
RESTS NOT SO MUCH ON POLICY AS ON "STATUTORY LIMITATIONS ON THE
WRONGFUL-DEATH ACTION...," ANTE, AT 579, IS ERRONEOUS.  /19/  THE LARGE
NUMBER OF COURTS THAT HAVE REFUSED TO ADOPT THE MAJORITY'S VIEW HAVE
DONE SO FOR VERY GOOD, PRACTICAL REASONS.  THE COURT HAS ADOPTED A RULE
THAT WILL BE DIFFICULT TO ADMINISTER, THAT PRESENTS A SERIOUS RISK OF
UNFAIRNESS FOR THOSE IN PETITIONER'S POSITION, AND THAT FAILS TO FOSTER
THE LAW'S NORMAL REGARD FOR FINALITY. 

THE MAJORITY'S POSITION REQUIRES IT TO ESTABLISH PROCEDURES TO
PREVENT A DOUBLE RECOVERY OF THE ELEMENTS OF DAMAGES AWARDED GAUDET IN
HIS OWN LAWSUIT.  THIS IS NO EASY TASK, AS "(IT SHOULD BE OBVIOUS THAT
AS YET NO SATISFACTORY SYSTEMATIC SOLUTION TO THE WHOLE (DOUBLE
RECOVERY) PROBLEM HAS BEEN FOUND."  /20/  THE COURT ADOPTS A COLLATERAL
ESTOPPEL THEORY, AND APPARENTLY WOULD IMPLEMENT THIS BY TREATING THE
INJURED SEAMAN AS A "FIDUCIARY"  FOR HIS DEPENDENTS.  ANTE, AT 593 -
594.  APART FROM THE UTTER NOVELTY OF THIS EXTENSION OF THE LAW OF
TRUSTS AND FIDUCIARY DUTIES, THE MAJORITY'S ESTOPPEL THEORY IS HARDLY A
"SATISFACTORY SOLUTION" TO THE PROBLEM OF UNFAIR RECOVERIES.  /21/
APPARENTLY THE COURT INTENDS TO LIMIT THE ELEMENTS OF PROOF OF DAMAGES
THAT MAY BE INTRODUCED AT THE SECOND TRIAL.  BUT THIS WILL IN NO WAY
GUARANTEE THAT THE SECOND TRIER OF FACT WILL SUCCEED IN
COMPARTMENTALIZING THE ALLOWABLE FROM THE UNALLOWABLE ELEMENTS OF
DAMAGES IN THE SECOND TRIAL.  THE HIGHLY CONCEPTUALIZED NATURE OF THE
PARSING OF CATEGORIES OF DAMAGES UNDERTAKEN BY THE COURT SUGGESTS HOW
UNLIKELY IT IS THAT THE MAJORITY'S THEORETICAL DISTINCTIONS WILL BE
MEANINGFUL IN PRACTICE.  AND CONTROL BY WAY OF APPELLATE REVIEW OF THE
INJUSTICES THAT ARE BOUND TO OCCUR WILL BE, PRACTICALLY SPEAKING, AN
IMPOSSIBLE TASK. 

MR. GAUDET'S JUDGMENT WAS GIVEN BY A JURY.  IT WOULD BE UNREALISTIC
TO ASSUME THAT THAT VERDICT WAS RESTRICTED TO AN OBJECTIVE MEANSUREMENT
OF GAUDET'S LOST EARNINGS PLUS THE "VALUE" OF HIS PAIN AND SUFFERING. 
IN ALL LIKELIHOOD, GAUDET'S AWARD REFLECTED AN ELEMENT OF THE JURY'S
CONCERN FOR A PERMANENTLY DISABLED WORKING MAN.  AS ANYONE WHO HAS
TRIED JURY CASES KNOWS, JURY SYMPATHY COMMONLY OVERCOMES A THEORETICAL
INABILITY TO RECOVER FOR SUCH INTANGIBLES AS LOSS OF SOCIETY.  IF MRS.
GAUDET IS THEN ALLOWED TO RECOVER IN HER SUBSEQUENT LAWSUIT THE FULL
VALUE, WHATEVER THAT IS, OF HER LOSS OF LOVE, ATTENTION, CARE,
AFFECTION, COMPANIONSHIP, COMFORT, AND PROTECTION, SHE WILL BE GIVEN A
SECOND OPPORTUNITY TO INJURIES THAT CANNOT BE MEASURED OBJECTIVELY. 
THE GAUDET FAMILY MAY WELL THEN RECEIVE SUBSTANTIALLY MORE THAN JUST
COMPENSATION FOR ITS INJURIES. 

ONE EXPRESSION OF JURY SYMPATHY IS COMMONPLACE, DESPITE ITS CONFLICT
WITH THE DAMAGES PRINCIPLES THAT IN THEORY CONTROL.  BUT CERTAINLY TWO
OPPORTUNITIES FOR JURY SENTIMENT CROSS THE LINE BETWEEN BENIGNITY AND
BONANZA AND SHOULD NOT BE SANCTIONED.  AND, IT IS IN THOSE CASES WHERE
THE DECEDENT'S SUIT AND THE SUBSEQUENT MORAGNE WRONGFUL-DEATH ACTION
ARE BOTH TRIED TO JURIES THAT THE MAJORITY'S PROCEDURES FOR PREVENTING
WINDFALL ARE MOST LIKELY TO BREAK DOWN.  SINCE IT IS AN ADMIRALTY
ACTION, A MORAGNE CLAIM BY ITSELF WILL NOT ENTITLE THE WRONGFUL-DEATH
CLAIMANT TO A JURY.  BUT THERE WILL BE CASES IN WHICH THE CLAIMANT WILL
BE ABLE TO JOIN A STATE LAW ACTION TO A MORAGNE CLAIM AND OBTAIN A JURY
FOR BOTH, EITHER IN STATE OR FEDERAL COURT.  SEE, ANTE, AT 589 N. 24. 
WHEN THAT HAPPENS, THOSE IN PETITIONER'S POSITION WILL BE SUBJECTED
TWICE TO THE VAGARIES OF A JURY, THE SECOND TIME ON SUCH WIDE-OPEN
DAMAGES CONCEPTS AS THOSE EMBRACED BY THE MAJORITY. 

THE COURT'S APPROVAL OF A SECOND RECOVERY BASED ON THE SAME WRONG
FOR WHICH DECEDENT ALREADY HAD RECOVERED, COMPOUNDED BY ITS REJECTION
OF TRADITIONAL ADMIRALTY "PECUNIARY LOSS" DAMAGE STANDARDS, SEEMS
PARTICULARLY INAPPROPRIATE GIVEN THE NATURE OF THE CLAIM RELIED ON BY
BOTH GAUDETS.  THE MARITIME CONCEPT OF UNSEAWORTHINESS IS NOT BASED ON
FAULT.  THE DOCTRINE HAS EVOLVED INTO A JUDICALLY CREATED FORM OF
STRICT LIABILITY.  /22/  WHEN THE LAW IMPOSES ABSOLUTE LIABILITY, IT
OFTEN RESTRICTS RECOVERY TO DAMAGES FOR THOSE INJURIES THAT ARE CLEARLY
ASCERTAINABLE AND SUSCEPTIBLE OF MONETARY COMPENSATION.  E.G., IGNERI
V. CIE.  DE TRANSPORTS OCEANIQUES, 323 F.2D 257, 268 (CA2 1963), CERT.
DENIED, 376 U.S. 949 (1964).  THIS REFLECTS THE IMPOSSIBILITY OF
DETERRENCE AND THE INAPPROPRIATENESS OF PUNISHMENT IN MANY CASES WHERE
LIABILITY IS ABSOLUTE.  THE COURT HAS BROKEN WITH THAT WISE RULE OF
SOCIAL POLICY IN THIS CASE. 

THE COURT ALSO HAS IGNORED THE LAW'S NORMAL REGARD FOR AN END TO
DUPLICATIVE LITIGATION ARISING FROM THE SAME TRANSACTION.  AFTER HER
HUSBAND'S JUDGMENT WAS AFFIRMED ON APPEAL, /23/  MRS. GAUDET COMMENCED
THIS ACTION BY, IN ESSENCE, CHANGING A FEW LINES IN HER HUSBAND'S
COMPLAINT AND FILING IT AGAIN IN THE SAME UNITED STATES DISTRICT COURT
AS A MORAGNE WRONGFUL-DEATH ACTION.  THAT COURT'S DISMISSAL OF MRS.
GAUDET'S COMPLAINT ON RES JUDICATA GROUNDS /24/  IS HARDLY SURPRISING,
GIVEN THE STRIKING SIMILARITIES BETWEEN THE TWO GAUDET COMPLAINTS. 
BOTH COMPLAINTS WERE BASED ON THE MARITIME DOCTRINE OF UNSEAWORTHINESS,
A CONDITION THAT MRS. GAUDET ALLEGED WAS ESTABLISHED AS A MATTER OF RES
JUDICATA BY MR. GAUDET'S SUCCESSFUL LAWSUIT.  APP. 2, 5 - 6.  THE SAME
FACTS AND INJURIES WERE ALLEGED.  ID., AT 1 - 2, 4 - 5.  BOTH SOUGHT
RECOVERY, IN THE AMOUNT OF $250,000.  ID., AT 2, 6.  WHEREAS MR. GAUDET
HAD SOUGHT RECOVERY FOR LOST EARNINGS, ID., AT 2, MRS. GAUDET SOUGHT
COMPENSATION FOR HER "SEVERE FINANCIAL LOSS."  ID., AT 5.  THUS, ON THE
FACE OF THE COMPLAINTS, MRS. GAUDET APPARENTLY SOUGHT RECOVERY SOLELY
FOR ELEMENTS OF DAMAGES THAT HAD BEEN ENCOMPASSED BY HER HUSBAND'S
JUDGMENT.  /25/ 

THERE SHOULD BE STRONG REASONS OF POLICY TO JUSTIFY SUCH REPTITIVE
SUITS AND TO IMPOSE ON PETITIONER THE ATTENDANT DOUBLING OF LITIGATION
EXPENSES.  THE REASONS ADVANCED BY THE MAJORITY OPINION DO NOT, IN MY
VIEW, APPROACH THAT LEVEL OF PERSUASION.  PETITIONER HAS ALREADY FULLY
LITIGATED, AND PAID, A LARGE JUDGMENT COMPENSATING GAUDET'S ESTATE FOR
THE INJURIES GAUDET INCURRED ON BROAD ITS VESSEL.  ORDINARILY,
PETITIONER WOULD HAVE BEEN ABLE TO CONSIDER THE CASE CLOSED AND TO
ORDER ITS AFFAIRS ON THE BASIS OF A VERDICT AFFIRMED ON APPEAL. 
TODAY'S RESULT DEPRIVES PETITIONER OF THAT RELIANCE INTEREST,
SUBJECTING IT TO ANOTHER ROUND OF LITIGATION WITH WIDE-OPEN DAMAGES
POSSIBILITIES.  THE ADMIRALTY PRECEDENTS, THE PREVAILING WEIGHT OF
STATE LAW, AND ELEMENTARY FAIRNESS CALL FOR RELIEVING PETITIONER OF
THAT UNJUSTIFIABLE BURDEN. 

AS NOTED AT THE OUTSET OF THIS DISSENT, THE COURT HAS WRITTEN NEW
ADMIRALTY LAW AS TO THE RIGHT OF SURVIVORS TO RECOVER FOR WRONGFUL
DEATH AND HAS EXPANDED SIGNIFICANTLY THE ELEMENTS OF DAMAGES
RECOVERABLE.  IN REACHING THESE RESULTS, THE MAJORITY OPINION HAS
DISCREDITED, IF NOT IN SUBSTANCE OVERRULED, THE UNANIMOUS DECISIONS OF
THE COURT IN THE MELLON AND FLYNN CASES.  IN MORAGNE, A DECISION ON
WHICH I BELIEVE THE MAJORITY PLACES A MISTAKEN RELIANCE, THE COURT
EMPHASIZED ITS RELUCTANCE TO DISREGARD OR OVERRULE ESTABLISHED
PRECEDENT: 

  "VERY WEIGHTY CONSIDERATIONS UNDERLIE THE PRINCIPLE THAT COURTS

  SHOULD NOT LIGHTLY OVERRULE PAST DECISIONS.  AMOUNG THESE ARE THE

  DESIRABILITY THAT THE LAW FURNISH A CLEAR GUIDE FOR THE CONDUCT

  OF INDIVIDUALS, TO ENABLE THEM TO PLAN THEIR AFFAIRS WITH

  ASSURANCE AGAINST UNTOWARD SURPRISE; THE IMPORTANCE OF FURTHERING

  FAIR AND EXPEDITIOUS ADJUDICATION BY ELIMINATING THE NEED TO

  RELITIGATE EVERY RELEVANT PROPOSITION IN EVERY CASE; AND THE

  NECESSITY OF MAINTAINING PUBLIC FAITH IN THE JUDICIARY AS A

  SOURCE OF IMPERSONAL AND REASONED JUDGMENTS.  THE REASONS FOR

REJECTING ANY ESTABLISHED RULE MUST ALWAYS BE WEIGHED AGAINST

  THESE FACTORS."  398 U.S., AT 403. 

MR. JUSTICE HARLAN, FOR THE COURT, THEN WENT ON TO STATE WITH CARE
THE REASONS FOR REJECTING THE HARRISBURG RULE, DESCRIBED AS AN
"UNJUSTIFIABLE ANOMALY."  ID., AT 404.  THE SUBSTANTIVE RULE REJECTED
TODAY IS NO COMPARABLE ANOMALY.  IT HAS BEEN THE GENERALLY APPLIED
DOCTRINC SINCE WRONGFUL-DEATH ACTIONS WERE INTRODUCED IN THIS COUNTRY. 
IT HAS BEEN THE RULE OF THE RELEVANT FEDERAL STATUTES SINCE THEIR
INCEPTION, AND CONGRESS HAS NOT MODIFIED THE RULE DURING THAT ENTIRE
PERIOD.  IT WAS THE RULE ANNOUNCED IN MELLON AND FLYNN, SUPRA, CASES
THE COURT CHOOSES NOT TO FOLLOW TODAY.  AND, UNLIKE THE OPINION IN
MORAGNE, THE MAJORITY HAS NOT PROVIDED, IN MY VIEW, SOUND REASONS OF
PRECEDENT OR POLICY FOR OVERTURNING THE RULE. 

/1/  46 U.S.C. 688.  THE JONES ACT PROVIDES: 

"ANY SEAMAN WHO SHALL SUFFER PERSONAL INJURY IN THE COURSE OF HIS
EMPLOYMENT MAY, AT HIS ELECTION, MAINTAIN AN ACTION FOR DAMAGES AT LAW,
WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL STATUTES OF THE
UNITED STATES MODIFYING OR EXTENDING THE COMMON-LAW RIGHT OR REMEDY IN
CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES SHALL APPLY; AND IN CASE
OF THE DEATH OF ANY SEAMAN AS A RESULT OF ANY SUCH PERSONAL INJURY THE
PERSONAL REPRESENTATIVE OF SUCH SEAMAN MAY MAINTAIN AN ACTION FOR
DAMAGES AT LAW WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL
STATUTES OF THE UNITED STATES CONFERRING OR REGULATING THE RIGHT OF
ACTION FOR DEATH IN THE CASE OF RAILWAY EMPLOYEES SHALL BE APPLICABLE. 
JURISDICTION IN SUCH ACTIONS SHALL BE UNDER THE COURT OF THE DISTRICT
IN WHICH THE DEFENDENT EMPLOYER RESIDES OR IN WHICH HIS PRINCIPAL
OFFICE IS LOCATED."     SINCE THE ACT EMPLOYS THE TERMS "IN THE COURSE
OF HIS EMPLOYMENT...," THE CAUSE OF ACTION IT PROVIDES "FOLLOWS FROM
THE SEAMAN'S EMPLOYMENT STATUS AND IS NOT LIMITED TO INJURY OR DEATH
OCCURRING ON THE HIGH SEAS."  MORAGNE V. STATES MARINE LINES, 398 U.S.
375, 394 (1970).  PROOF OF NEGLIGENCE IS A PREDICATE TO RECOVERY. 
IBID. 

/2/  THE SECOND SUCH STATUTE, THE DEATH ON THE HIGH SEAS ACT, IS
DISCUSSED BELOW.  SEE TEXT, INFRA, AT 599 - 601 AND NN. 4 - 6. 

/3/  IGNERI V. CIE.  DE TRANSPORTS OCEANIQUES, 323 F.2D 257, 266
(CA2 1963), CERT. DENIED, 376 U.S. 949 (1964). 

/4/  46 U.S.C. 761 ET SEQ. THE OPENING SECTION OF THE DEATH ON THE
HIGH SEAS ACT, 46 U.S.C. 761, PROVIDES: 

"WHENEVER THE DEATH OF A PERSON SHALL BE CAUSED BY WRONGFUL ACT,
NEGLECT, OR DEFAULT OCCURRING ON THE HIGH SEAS BEYOND A MARINE LEAGUE
FROM THE SHORE OF ANY STATE, OR THE DISTRICT OF COLUMBIA, OR THE
TERRITORIES OR DEPENDENCIES OF THE UNITED STATES, THE PERSONAL
REPRESENTATIVE OF THE DECEDENT ANY MAINTAIN A SUIT FOR DAMAGES IN THE
DISTRICT COURTS OF THE UNITED STATES, IN ADMIRALTY, FOR THE EXCLUSIVE
BENEFIT OF THE DECEDENT'S WIFE, HUSBAND, PARENT, CHILD, OR DEPENDENT
RELATIVE AGAINST THE VESSEL, PERSON, OR CORPORATION WHICH WOULD HAVE
BEEN LIABLE IF DEATH HAD NOT ENSUED." 

/5/  BUT SEE PICKLES V. F. LEYLAND & CO., 10 F.2D 371 (MASS. 1925). 
PICKLES HOLDS THAT IF THE DEATH OCCURS ON LAND, THE HIGH SEAS ACT IS
NOT APPLICABLE, EVEN THOUGH THE INJURIES ULTIMATELY PRODUCING DEATH
WERE INFLICTED AT SEA.  ID., AT 372.  IF THIS WERE THE CORRECT VIEW, IT
WOULD BE EASY TO SEE WHY CASES LIKE THE INSTANT ONE HAD NOT PREVIOUSLY
ARISEN UNDER THE HIGH SEAS ACT.  THE ACT WOULD SIMPLY NOT ALLOW ACTIONS
LIKE THE PRESENT ONE.  HOWEVER, THE ACT SAYS "DEATH.  . .CAUSED BY
WRONGFUL ACT, NEGLECT, OR DEFAULT OCCURRING ON THE HIGH SEAS...," NOT
"DEATH OCCURRING ON THE HIGH SEAS."  SEE N. 4, SUPRA.  PICKLES,
THEREFORE, IS PROBABLY AN ERRONEOUS READING OF THE ACT. 

/6/  SECTION 765 READS: 

"IF A PERSON DIE AS THE RESULT OF SUCH WRONGFUL ACT, NEGLECT, OR
DEFAULT AS IS MENTIONED IN SECTION 761 OF THIS TITLE (SEE N. 4, SUPRA)
DURING THE PENDENCY IN A COURT OF ADMIRALTY OF THE UNITED STATES OF A
SUIT TO RECOVER DAMAGES FOR PERSONAL INJURIES IN RESPECT OF SUCH ACT,
NEGLECT, OR DEFAULT, THE PERSONAL REPRESENTATIVE OF THE DECEDENT MAY BE
SUBSTITUTED AS A PARTY AND THE SUIT MAY PROCEED AS A SUIT UNDER THIS
CHAPTER FOR THE RECOVERY OF (PECUNIARY LOSSES)." 

/7/  SEE N. 1, SUPRA. 

/8/  G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY 308 (1957). 

/9/  E.G., ROBERTS V. UNION CARBIDE CORP., 415 F.2D 474 (CA3 1969)
(NEW JERSEY LAW); SCHLAVICK V. MANHATTAN BREWING CO., 103 F.SUPP.  744
(ND ILL. 1952) (INDIANA LAW).  THE CASES ARE REVIEWED IN W. PROSSER,
THE LAW OF TORTS 911 - 912 (4TH ED. 1971) (HEREAFTER PROSSER); 2F. 
HARPER & F. JAMES, THE LAW OF TORTS 24.6 (1956 AND USPP.  1968);
FLEMING, THE LOST YEARS:  A PROBLEM IN THE COMPUTATION AND DISTRIBUTION
OF DAMAGES, 50 CALIF. L. REV. 598, 599, 608 - 609 (1962) (HEREAFTER
FLEMING).  THE LATTER COMMENTATOR NOTES THAT "(AT LEAST TWENTY-THREE
JURISDICTIONS.  . .HAVE SO HELD IN THE CLEAREST TERMS AND SOME HALF A
DOZEN MORE HAVE SO INDICATED IN DICTA."  ID., AT 608 - 609, N. 38. 
NINE OR 10 CONTRARY JURISDICTIONS CONSTITUTE A "SUBSTANTIAL MINORITY
VIEW" ACCORDING TO PROSSER 912 AND NN. 35 - 39.  HOWEVER, PROSSER NOTES
THAT THIS VIEW IS "LARGELY CONFINED TO JURISDICTIONS WHICH DO NOT ALLOW
THE DECEDENT TO RECOVER FOR HIS OWN CURTAILED LIFE...."  ID., AT 912. 
AS THE COURT POINTS OUT, ANTE, AT 594, THE MORANGE CAUSE OF ACTION IS
NOT SUBJECT TO THAT LIMITATION. 

/10/  RESTATEMENT OF TORTS, EXPLANATORY NOTES 925, COMMENT A, P. 639
(1939).  THIS POSITION IS REPEATED ALMOST VERBATIM IN THE MOST RECENT
WORKING DRAFT OF THE SECOND RESTATEMENT.  SEE RESTATEMENT (SECOND) OF
TORTS, EXPLANATORY NOTES 925, COMMENT A, P. 196 (TENT.  DRAFT NO. 19,
MAR. 30, 1973).  SEE ALSO, RESTATEMENT OF TORTS, EXPLANATORY NOTES 926,
COMMENT A, P. 646: 

"(IN THOSE STATES WITH STATUTES COMBINING THE FUNCTIONS OF A DEATH
STATUTE AND A SURVIVAL STATUTE) THE REPRESENTATIVES OF THE DECEASED CAN
RECOVER IN A SINGLE ACTION BOTH FOR THE DAMAGES PRECEDING DEATH AND FOR
THOSE CAUSED BY THE DEATH.  EVEN IN SUCH STATES, HOWEVER, A JUDGMENT
OBTAINED BY THE DECEASED OR A RELEASE OF THE CAUSE OF ACTION BY HIM
TERMINATES THE RIGHT OF ACTION." 

"(A) RELEASE OF HIS CLAIM BY THE INJURED PERSON BARS AN ACTION AFTER
HIS DEATH FOR CAUSING THE DEATH, AS ALSO DOES A JUDGMENT EITHER FOR, OR
IF ON THE MERITS, AGAINST HIM GIVEN IN AN ACTION BROUGHT BY HIM FOR THE
TORT." 

/11/  E.G., 2 HARPER & JAMES, SUPRA, AT 1293 - 1294: 

"IF. . .DECEASED RECOVERS BEFORE HIS DEATH, HIS RECOVERY FOR
PERMANENT INJURIES WILL BE BASED, UNDER THE PREVAILING AMERICAN RULE,
ON HIS PROSPECTIVE EARNINGS FOR THE BALANCE OF HIS LIFE EXPECTANCY AT
THE TIME OF HIS INJURY UNDIMINISHED BY ANY SHORTENING OF THAT
EXPECTANCY AS A RESULT OF THE INJURY.  PRESUMABLY ANY SETTLEMENT WOULD
REFLECT THE LEGAL LIABILITY UNDER THIS RULE.  THE DANGER OF DOUBLE
RECOVERY BECOMES CLEAR WHEN IT IS RECALLED THAT ANY BENEFITS OF WHICH
THE SURVIVORS WERE DEPRIVED, BY THE DEATH, WOULD HAVE COME OUT OF THESE
VERY PROSPECTIVE EARNINGS IF DECEASED HAD LIVED.  AT LEAST IN THE CASE
OF SERIOUS AND APPARENTLY PERMANENT INJURIES, THEREFORE, THERE IS REAL
DANGER OF DOUBLE RECOVERY IF A WRONGFUL DEATH ACTION IS ALLOWED TO
RECOVER FOR THE PROSPECTIVE EARNINGS LOST THROUGH HIS DIMINISHED LIFE
EXPENTANCY."  (CITATIONS OMITTED.)  THE LATTER APPEARS TO HAVE BEEN THE
MEASURE OF MR. GAUDET'S RECOVERY IN HIS PERSONAL INJURY ACTION.  463
F.2D 1331, 1333 N. 1; TR. OF ORAL ARG. 20 - 21. 

/12/  E.G., DUFFEY, THE MALDISTRIBUTION OF DAMAGES IN WRONGFUL
DEATH, 19 OHIO ST. L. J. 264, 273 (1958):  IN SUCH CASES, "(THE
RECOVERY IN THE WRONGFUL DEATH ACTION BASED ON THE DECEDENT'S FUTURE
EARNING CAPACITY IS. . . SIMPLY A PORTION OR SEGMENT OF THE LARGER
RECOVERY OBTAINED BY THE INJURED PERSON HIMSELF IN THE PERSONAL INJURY
ACTION."  SEE N. 11, SUPRA. 

/13/  FLEMING 610.  "(THE FEAR OF DUPLICATION OF DAMAGES) HAS
FORCE.  . . WHENEVER ALLOWANCE WAS MADE FOR PROSPECTIVE LOSS OF
EARNINGS (IN THE DECEDENT'S OWN LAWSUIT), SINCE THIS WOULD HAVE DRAWN
ON, OR DEPLETED, THE FUND CONTINGENTLY AVAILABLE TO SATISFY THE
DEPENDENTS FOR LOSS OF THEIR EXPECTANCY OF SUPPORT."  THIS COMMENTATOR
ALSO STATES THAT THE MINORITY OF STATE COURTS THAT DO NOT VIEW DECEDENT
RECOVERY AS A BAR TO A SUBSEQUENT WRONGFUL-DEATH ACTION AND THAT ARE
"CONTENT WITH THE BLAND ASSERTION THAT NO DUPLICATION OF DAMAGES CAN
ARISE BECAUSE THE RELEASE OR RECOVERY BY THE DECEDENT COULD NOT HAVE
COVERED THE PERIOD BEYOND HIS DEATH ..."  ARE RELYING ON A
"PROTESTATION OF FAITH RATHER THAN A CONCLUSION DRAWN FROM PROVEN
FACTS...."  ID., AT 615 

/14/  I DO NOT ADDRESS THE CORRECTNESS OF THE COURT'S HOLDING THAT
MORAGNE ALLOWS THE RECOVERY OF LOSS OF SERVICES, SEE, E.G., MICHIGAN C.
R. CO. V. VREELAND, 227 U.S. 59, 71, 73 (1913), OR FUNERAL EXPENSES. 
COMPARE CITIES SERVICE OIL CO. V. LAUNEY, 403 F.2D 537, 540 (CA5 1968),
WITH GREENE V. VANTAGE S. S. CORP., 466 F.2D 159, 167 (CA4 1972). 

/15/  46 U.S.C. 762.  SECTION 762 PROVIDES: 

"THE RECOVERY IN SUCH SUIT SHALL BE A FAIR AND JUST COMPENSATION FOR
THE PECUNIARY LOSS SUSTAINED BY THE PERSONS FOR WHOSE BENEFIT THE SUIT
IS BROUGHT AND SHALL BE APPORTIONED AMONG THEM BY THE COURT IN
PROPORTION TO THE LOSS THEY MAY SEVERALLY HAVE SUFFERED BY REASON OF
THE DEATH OF THE PERSON BY WHOSE REPRESENTATIVE THE SUIT IS BROUGHT." 

/16/  E.G., IGNERI V. VIE.  DE TRANSPORTS OCEANIQUES, 323 F.2D, AT
266 N. 21, CERT. DENIED, 376 U.S. 949 (1964); MIDDLETON V. LUCKENBACH
S. S. CO., 70 F.2D 326, 330 (CA2), CERT. DENIED, 293 U.S. 577 (1934). 
SEE DUGAS V. NATIONAL AIRCRAFT CORP., 438 F.2D 1386, 1392 (CA3 1971)
("THE AMOUNT OF RECOVERY UNDER THE DEATH ON THE HIGH SEAS ACT IS
DETERMINED BY THE ACTUAL PECUNIARY LOSS SUSTAINED BY THE BENEFICIARY
DUE TO THE WRONGFUL DEATH"). 

/17/  E.G., IGNERI V. CIE.  DE TRANSPORTS OCEANIQUES, SUPRA, AT 266
("(IT IS ESTABLISHED.  . .THAT THE DAMAGES RECOVERABLE BY A SEAMAN'S
WIDOW SUING FOR WRONGFUL DEATH UNDER THE JONES ACT DO NOT INCLUDE
RECOVERY FOR LOSS OF CONSORTIUM").  CF. CITIES SERVICE OIL CO. V.
LAUNEY, SUPRA, AT 540.  SEE GULF, C. & S. F. R. CO. V. MCGINNIS, 228
U.S. 173, 157 (1913); MICHIGAN C. R. CO. V. VREELAND, SUPRA, AT 68, 70
71; G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY 306 (1957): 

"RECOVERY UNDER THE HIGH SEAS ACT LIKE THAT UNDER FELA 51 (AND THUS
THE JONES ACT) IS BASED ON PECUNIARY LOSS TO THE BENEFICIARIES AS A
RESULT OF THE WORNGFUL DEATH.  THE DAMAGE CALCULATION THEREFORE
INVOLVES AN ESTIMATE OF WHAT THE DECEDENT'S LIFE EXPECTANCY WOULD HAVE
BEEN, HIS PROBABLE EARNINGS DURING THAT PERIOD AND THE AMOUNTS HE WOULD
HAVE CONTRIBUTED TO BENEFICIARIES." 

/18/  E.G., SIMPSON V. KNUTSEN, 444 F.2D 523 (CA9 1971); PETITION OF
UNITED STATES STEEL CORP., 436 F.2D 1256, 1279 (CA6 1970), CERT.
DENIED, 402 U.S. 987 (1971); IN RE CAMBRIA S. S. CO., 353 F.SUPP.  691,
697 - 698 (ND OHIO 1973); GREEN V. ROSS, 338 F.SUPP.  365, 367 (SD FLA.
1972); PETITION OF CANAL BARGE CO., 323 F.SUPP.  805, 820 - 821 (ND
MISS.  1971).  THE STATE COURTS OF LOUISIANA, THE STATE WHERE MR.
GAUDET'S INJURIES OCCURRED, HAVE REACHED THE SAME RESULT.  STRICKLAND
V. NUTT, 264 SO. 2D 317, 322 (LA. APP.), AFF'D SUB NOM. DEROUEN V.
NUTT, 262 LA. 1123, 266 SO. 2D 432 (1972).  ("THE MORAGNE CASE, WITH
THE DESIRE FOR UNIFORMITY IN MARITIME DEATH ACTIONS ANNOUNCED THEREIN,
PRECLUDES LOSS OF LOVE AND AFFECTION AS AN ELMENT OF DAMAGE HERE.") 

ONLY ONE FIFTH CIRCUIT CASE, OTHER THAN THE INSTANT CASE, AND TWO
CASES FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
LOUISIANA HAVE CONCLUDED THAT MORAGNE SIGNALED A BREAK WITH SETTLED
ADMIRALTY WRONGFUL-DEATH DAMAGES RULES.  DENNIS V. CENTRAL GULD S. S.
CORP., 453 F.2D 137, CERT. DENIED, 409 U.S. 948 (1972); IN RE FARRELL
LINES, INC., 339 F.SUPP.  91 (1971).  IN THE LATTER CASE, THE COURT
CANDIDLY ADMITTED THAT ITS DECISION: 

"MAY CONFLICT WITH MORAGNE'S GOAL OF UNIFORMITY OF RECOVERY FOR ALL
WHO PERISH ON NAVIGABLE WATERS."  ID., AT 657. 

/19/  THE MAJORITY'S OPINION, APPARENTLY IN AN EFFORT TO AVOID THE
FORCE OF PRECEDENT CONTRARY TO ITS VIEW, CONTRASTS DISPARAGINGLY THESE
STATUTES WITH THE MORE "HUMANE" JUDGE-MADE RULE OF MORAGNE.  ANTE, AT
581 - 583.  BUT THE MAJORITY IGNORES THE EXTENT TO WHICH THE COURT IN
MORAGNE EXPRESSLY IDENTIFIED ITS HOLDING WITH THE POLICY AND PRINCIPLES
OF THE VERY STATUTES NOW CRITICIZED:

"THE POLICY THUS ESTABLISHED (BY THE STATE AND FEDERAL WRONGFUL
DEATH STATUTES) HAS BECOME ITSELF A PART OF OUR LAW, TO BE GIVEN ITS
APPROPRIATE WEIGHT NOT ONLY IN MATTERS OF STATUTORY CONSTRUCTION BUT
ALSO IN THOSE OF DECISIONAL LAW."  398 U.S., AT 390 - 391.  AND,
AGAIN: 

"BOTH THE DEATH ON THE HIGH SEAS ACT AND THE NUMEROUS STATE WRONGFUL
DEATH ACTS HAVE BEEN IMPLEMENTED WITH SUCCESS FOR DECADES.  THE
EXPERIENCE THUS BUILT UP COUNSELS THAT A SUIT FOR WRONGFUL DEATH RAISES
NO PROBLEMS UNLIKE THOSE THAT HAVE LONG BEEN GRIST FOR THE JUDICIAL
MILL."  ID., AT 408. 

CONTRARY TO THE COURT'S INTIMATIONS, THERE IS NO BASIS FOR
SUGGESTING A TENSION BETWEEN THESE STATUTES AND MORAGNE.  INDEED, IT IS
CLEAR FROM THE MORAGNE OPINION THAT THE COURT RELIED UPON THE STATUTES
IN ITS ANALYSIS, SOUGHT ONLY TO FILL A NARROW GAP IN THE LAW FELT BY
THEM, AND CONSIDERED THAT THE STATUTES AFFORDED "PERSUASIVE ANALOGY FOR
GUIDANCE" IN DEVELOPING THE MORAGNE CAUSE OF ACTION.  IBID. 

/20/  PROSSER 912 (FOOTNOTE OMITTED). 

/21/  THE THEORY PROBABLY CREATES MORE PROBLEMS THAN IT RESOLVES. 
WHAT ARE THE BOUNDARIES OF THE CLASS OF POTENTIAL BENEFICIARIES WHO ARE
ESTOPPED TO RELITIGATE LOSS OF SUPPORT?  IF A SERIOUSLY INJURED PERSON
IS THE FIDUCIARY FOR AN UNDEFINED CLASS OF POTENTIAL BENEFICIARIES, MAY
HE BE ENJOINED FROM WASTING HIS ASSETS OR DISINHERTING MEMBERS OF HIS
FAMILY?  THERE WILL ALSO BE SOME NICE QUESTIONS UNDER THE MAJORITY'S
APPROACH ABOUT WHETHER A PARTICULAR ITEM OF PROOF AT THE SECOND TRIAL
IS TO BE INTRODUCED WITH REGARD TO THE FORBIDDEN ISSUE OF SUPPORT OR
THE PERMISSIBLE ISSUE OF, SAY, SERVICES. 

/22/  MORAGNE V. STATES MARINE LINES, 398 U.S., AT 399.  CF.,
COMMENT, MARITIME WRONGFUL DEATH AFTER MORAGNE:  THE SEAMAN'S LEGAL
LIFEBOAT, 59 GEO. L. J. 1411 N. 4 (1971). 

/23/  STEIN V. SEA-LAND SERVICES, INC., 440 F.2D 1181 (CA5 1971). 
IT MIGHT BE NOTED THAT BECAUSE GAUDET'S DEATH INTERVENED BETWEEN THE
JURY VERDICT AND THE APPEAL, HIS RECOVERY WENT DIRECTLY TO HIS ESTATE,
NOT TO HIM PERSONALLY. 

/24/ PETITION FOR CERTIORARI 17. 

/25/  ALTHOUGH THE MAJORITY FAILS TO ADDRESS THE POINT, PRESUMABLY
ITS RESULT MEANS THAT MRS. GAUDET MUST AT LEAST AMEND HER COMPLAINT
UPON REMAND TO THE DISTRICT COURT. 

STUART A. MCCLENDON ARGUED THE CAUSE FOR PETITIONER.  ON THE BRIEF
WAS RICHARD L. GREENLAND. 

GEORGE W. REESE ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS GEORGE M. LEPPERT. 
..END :





CHRISTIAN V. NEW YORK DEPARTMENT OF LABOR, 414 U.S. 614 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK

        NO. 72 - 5704.  ARGUED NOVEMBER 13, 1973--DECIDED JANUARY

      21, 1974; 347 F.SUPP.  1158, VACATED AND REMANDED. 


    APPELLANTS, FORMER FEDERAL PROBATIONARY EMPLOYEES WHO WERE

  DENIED BENEFITS UNDER THE UNEMPLOYMENT COMPENSATION FOR FEDERAL

  EMPLOYEES PROGRAM, BROUGHT THIS ACTION IN DISTRICT COURT SEEKING

  DECLARATORY AND INJUNCTIVE RELIEF AGAINST PROVISIONS OF THE

  PROGRAM AND ITS IMPLEMENTING REGULATIONS THAT THEY CONTENDED

  OPERATED TO DENY THEM A HEARING ON THE FACTUAL BASIS FOR THEIR

  REMOVAL FROM FEDERAL SERVICE, FOR THE PURPOSE OF DETERMINING

  THEIR ELIGIBILITY UNDER STATE LAW FOR UNEMPLOYMENT COMPENSATION. 

  THEY CLAIMED THAT THE ACT REQUIRES SUCH A HEARING AND,

  ALTERNATIVELY, THAT THE DENIAL OF A HEARING DEPRIVED THEM OF DUE

  PROCESS AND EQUAL PROTECTION.  A THREE-JUDGE DISTRICT COURT HELD

  THAT THE STATUTES DOES NOT REQUIRE A HEARING TO CONTEST THE

  EMPLOYING AGENCY'S FINDINGS; DISMISSED THE CONSTITUTIONAL CLAIMS

  AGAINST THE FEDERAL DEFENDANTS FOR LACK OF SUBJECT-MATTER

  JURISDICTION; AND HELD THAT THE STATE AGENCY'S DENIAL OF A

  HEARING DID NOT VIOLATE THE DUE PROCESS OR EQUAL PROTECTION

  CLAUSES.  HELD:  ANY DECISION UPON APPELLANTS'  STATUTORY OR

  CONSTITUTIONAL CLAIMS WOULD BE PREMATURE IN VIEW OF THE FACT THAT

  THE RECORD DOES NOT DISCLOSE THAT THE STATE AGENCY, IN NOTIFYING

  APPELLANTS OF THE ADVERSE DETERMINATIONS, INFORMED THEM, AS IT

 WAS REQUIRED TO DO BY THE APPLICABLE REGULATION, OF THEIR "RIGHT

  TO ADDITIONAL INFORMATION OR RECONSIDERATION AND CORRECTION" OF

  THE FINDINGS BY THE EMPLOYING AGENCIES; OR THAT APPELLANTS

  INVOKED THE AVAILABLE PROCEDURE ENTITLING THEM TO REQUEST THEIR

  AGENCIES "TO RECONSIDER AND CORRECT" THOSE FINDINGS.  THE

  DISTRICT COURT'S DISMISSAL OF THE SUIT AS TO BOTH FEDERAL AND

  STATE DEFENDANTS IS THEREFORE VACATED WITH DIRECTIONS THAT THE

  COURT DETERMINE WHETHER APPELLANTS SHOULD BE PERMITTED TO INVOKE

  THE APPLICABLE ADMINISTRATIVE PROCEDURES.  PP. 618 - 624. 

BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, DISCHARGED FEDERAL PROBATIONARY EMPLOYEES, WERE DENIED
UNEMPLOYMENT COMPENSATION BY THE NEW YORK STATE DEPARTMENT OF LABOR, AN
"AGENT OF THE UNITED STATES" UNDER AGREEMENT WITH THE SECRETARY OF
LABOR FOR THE ADMINISTRATION OF THE UNEMPLOYMENT COMPENSATION FOR
FEDERAL EMPLOYEES (UCFE) PROGRAM, 5 U.S.C. 8501 ET SEQ. APPELLANTS
BROUGHT THIS CLASS SUIT AGAINST THAT STATE AGENCY IN THE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, JOINING AS DEFENDANTS THE UNITED
STATES DEPARTMENT OF LABOR, WHICH IS CHARGED WITH OVERALL
RESPONSIBILITY FOR THE PROGRAM, AND THE UNITED STATES POST OFFICE
DEPARTMENT AND DEPARTMENT OF THE TREASURY, WHICH ARE APPELLANTS' FORMER
EMPLOYING AGENCIES. 

APPELLANTS ALLEGED THAT THE STATE AGENCY HAD BASED ITS ADVERSE
DETERMINATIONS ON FINDINGS OF FACT MADE EX PARTE BY THE FEDERAL
EMPLOYING AGENCIES, AND THAT THE STATE AGENCY HAD REFUSED TO AFFORD
EITHER APPELLANT A HEARING AT WHICH HE COULD ATTEMPT TO CONTEST THOSE
FEDERAL FINDINGS.  THE RESULT, APPELLANTS CLAIMED, WAS A DEPRIVATION OF
ANY OPPORTUNITY TO BE HEARD, IN VIOLATION OF THE UCFE STATUTES AND OF
THE FIFTH AND FOURTEENTH AMENDMENTS.  THEY SOUGHT CERTIFICATION AS
REPRESENTATIVES OF THE CLASS OF PERSONS SIMILARLY SITUATED, THE
CONVENING OF A THREE-JUDGE COURT, AND DECLARATORY, INJUNCTIVE, AND
MANDAMUS RELIEF. 

THE DISTRICT COURT VIEWED THE SUIT AS A CONSTITUTIONAL ATTACK ON 5
U.S.C. 8506(A), /1/  WHICH, INTER ALIA, MAKES THE FINDINGS OF THE
FEDERAL EMPLOYING AGENCY "FINAL AND CONCLUSIVE" ON THE STATE AGENCY,
AND ON THE REGULATIONS OF THE SECRETARY OF LABOR PROMULGATED, PURSUANT
TO 5 U.S.C. 8508, TO ENFORCE THE PROGRAM.  /2/  A THREE-JUDGE COURT WAS
CONVENED.  THAT COURT, IN AN OPINION REPORTED AT 347 F.SUPP.  1158
(1972), FIRST EXAMINED THE STATUTORY CLAIM AND HELD THAT 8506(A) DOES
NOT REQUIRE THAT APPELLANTS RECEIVE EITHER A STATE OR A FEDERAL HEARING
TO CONTEST THE EMPLOYING AGENCY'S FINDINGS.  NEXT, THE COURT NOTED THAT
JURISDICTION OVER THE CLAIMS AGAINST THE FEDERAL DEFENDANTS HAD BEEN
ALLEGED ONLY UNDER 28 U.S.C. 1361, PROVIDING FOR MANDAMUS ACTIONS. 
HOLDING THAT 1361 WILL NOT SUPPORT A CONSTITUTIONAL CHALLENGE TO A
STATUTE, THE COURT DISMISSED THE CONSTITUTIONAL CLAIMS AGAINST THE
FEDERAL DEFENDANTS FOR LACK OF SUBJECT-MATTER JURISDICTION.  /3/
FINALLY, TURNING TO THE CONSTITUTIONAL CLAIMS AGAINST THE STATE
DEFENDANTS, THE COURT, APPARENTLY ASSUMING FOR PURPOSES OF ARGUMENT
THAT THE FEDERAL DEFENDANTS WERE NOT CONSTITUTIONALLY REQUIRED TO
AFFORD APPELLANTS A HEARING, TREATED THE CLAIMS AS ASSERTING THAT
DENIAL OF A STATE HEARING WAS, IN EFFECT, A DENIAL OF ANY HEARING ON
THE FEDERAL FINDINGS.  THE COURT HELD THAT THE DENIAL OF A HEARING BY
THE STATE AGENCY DID NOT VIOLATE EITHER THE DUE PROCESS OR THE EQUAL
PROTECTION CLAUSE. 

WE NOTED PROBABLE JURISDICTION OF APPELLANTS' APPEAL, 411 U.S. 930
(1973).  WE ARE OF THE VIEW THAT DECISION UPON APPELLANTS' STATUTORY
AND CONSTITUTIONAL CLAIMS WOULD BE PREMATURE.  WE CANNOT DISCOVER IN
THE RECORD THAT THE STATE AGENCY, IN NOTIFYING APPELLANTS OF THE
ADVERSE DETERMINATIONS, INFORMED THEM, AS REQUIRED BY 20 CFR 609.20, OF
THEIR "RIGHT TO ADDITIONAL INFORMATION OR RECONSIDERATION AND
CORRECTION" OF THE FINDINGS BY THE EMPLOYING AGENCIES.  NOR CAN WE
DISCOVER FROM THE RECORD WHETHER OR NOT APPELLANTS INVOKED 20 CFR
309.23, ENTITLING THEM TO REQUEST THEIR EMPLOYING AGENCIES "TO
RECONSIDER AND CORRECT" THOSE FINDINGS. 

THE FINDINGS OF APPELLANT CHRISTIAN'S FEDERAL EMPLOYER, THE UNITED
STATES POST OFFICE DEPARTMENT, WERE THAT CHRISTIAN WAS DISCHARGED
BECAUSE OF EXCESSIVE ABSENCES.  THE "FINDINGS" OF APPELLANT GREEN'S
EMPLOYER, THE DEPARTMENT OF THE TREASURY, WERE THAT GREEN WAS
DISCHARGED FOR CONSUMING AN ALCOHOLIC BEVERAGE WITHIN 24 HOURS OF GOING
ON DUTY AS A SKY MARSHAL.  IT IS CLEAR THAT NEITHER WAS AFFORDED A
PRIOR HEARING BY HIS AGENCY OR ANY OPPORTUNITY TO CHALLENGE THE
JUSTIFICATIONS FOR HIS DISCHARGE.  /4/  EACH THEN APPLIED FOR
UNEMPLOYMENT COMPENSATION THROUGH THE NEW YORK STATE DEPARTMENT OF
LABOR.  AS REQUIRED BY 8506, NEW YORK REQUESTED AND OBTAINED FROM EACH
AGENCY ITS "FINDINGS" DESCRIBING THE NATURE OF THE EMPLOYMENT,
INCLUDING THE REASONS FOR THE DISCHARGE.  ON THE BASIS OF THOSE
FINDINGS, THE STATE OFFICIALS MADE AN INITIAL DETERMINATION THAT
NEITHER APPELLANT QUALIFIED FOR COMPENSATION UNDER THE APPLICABLE STATE
STANDARDS.  /5/ 

WE FIND NOTHING WHATEVER IN THE RECORD TO SHOW COMPLIANCE BY THE
STATE AGENCY WITH 20 CFR 609.20.  ALL THAT APPEARS IS THAT THE NEW YORK
OFFICIALS SENT EACH APPELLANT A LETTER THAT INCLUDED (A) A RECITATION
THAT NO EMPLOYMENT BENEFITS COULD BE PAID, (B) THE STATE RULE THAT
REQUIRED THAT CONCLUSION, (C) A SHORT SUMMARY OF THE FINDINGS OF THE
FEDERAL AGENCY, AND (D) A STATEMENT THAT THE INDIVIDUAL COULD REQUEST A
HEARING BEFORE AN IMPARTIAL STATE REFEREE.  INDEED, THE LETTER APPEARS
TO BE A FORM LETTER APPROPRIATE IN CASES OF PRIVATE AND STATE EMPLOYEE
APPLICANTS, BUT NOT TAILORED FOR THE SITUATION OF THE FEDERAL EMPLOYEE
APPLICANT GIVEN RIGHTS OF RECONSIDERATION AND CORRECTION BY THE
SECRETARY'S REGULATIONS. 

APPELLANT CHRISTIAN REQUESTED AND OBTAINED A HEARING BEFORE A STATE
REFEREE.  THE REFEREE PERMITTED HER TO INTRODUCE EVIDENCE TO REBUT THE
FEDERAL FINDINGS, CREDITED THAT EVIDENCE, AND RECOMMENDED THAT SHE BE
PROVIDED UNEMPLOYMENT COMPENSATION.  THE STATE APPEALS BOARD, HOWEVER,
REVERSED ON THE GROUND THAT 8506 PROHIBITED RE-EXAMINATION OF THE FACTS
FOUND BY THE FEDERAL AGENCY.  APPELLANT GREEN HAD NOT OBTAINED A
HEARING AT THE TIME THIS SUIT WAS FILED, AND THE RECORD DOES NOT
DISCLOSE WHETHER HE REQUESTED ONE.  /6/ 

THE UCFE PROGRAM DOES NOT, AS THE STATE APPEALS BOARD RECOGNIZED,
CONTEMPLATE A HEARING BEFORE THE STATE AGENCY FOR CORRECTION OF FACTUAL
FINDINGS OF THE FEDERAL EMPLOYER.  BUT, WHILE PROHIBITING STATE RE
EXAMINATION OF THE FACTS, 8506(A) ALSO REQUIRES AN OPPORTUNITY FOR
FEDERAL RE-EXAMINATION: 

     "THE REGULATIONS (PROMULGATED BY THE SECRETARY OF LABOR) SHALL

  INCLUDE PROVISION FOR CORRECTION BY THE EMPLOYING AGENCY OF

  ERRORS AND OMISSIONS.  FINDINGS MADE IN ACCORDANCE WITH THE

  REGULATIONS ARE FINAL AND CONCLUSIVE FOR THE PURPOSE OF (STATE

  ADJUDICATION)." 

THE REGULATIONS PROMULGATED BY THE SECRETARY OF LABOR PLAINLY ATTACH
GREAT SIGNIFICANCE TO THE RIGHT OF THE DISCHARGED EMPLOYEE TO HAVE THE
EMPLOYING AGENCY RECONSIDER ITS STATED REASONS FOR HIS DISCHARGE.  THE
CRUCIAL REQUIREMENT THAT TRIGGERS THIS RECONSIDERATION IS THE
OBLIGATION IMPOSED UPON THE STATE AGENCY TO NOTIFY THE APPLICANT OF THE
CONTENT OF THE FEDERAL FINDINGS, WHICH NOTICE "SHALL (ALSO) INFORM THE
FEDERAL CIVILIAN EMPLOYEE OF HIS RIGHT TO ADDITIONAL INFORMATION OR
RECONSIDERATION AND CORRECTION OF SUCH FINDINGS."  20 CFR 609.20. 
THEREUPON, THE EMPLOYEE MAY OBTAIN ADDITIONAL INFORMATION FROM THE
EMPLOYING AGENCY CONCERNING THE BASIS OF ITS FINDINGS, 20 CFR 609.22. 
WHETHER OR NOT HE AVAILS HIMSELF OF THAT OPPORTUNITY, HE MAY FILE A
REQUEST FOR RECONSIDERATION AND CORRECTION, "TOGETHER WITH SUCH
INFORMATION AS SUPPORTS HIS REQUEST, THROUGH THE STATE AGENCY BEFORE
WHICH THE CLAIM IS PENDING...."  20 CFR 609.23.  UPON RECEIPT OF SUCH A
REQUEST, THE FEDERAL AGENCY MUST CONSIDER ANY INFORMATION SUBMITTED BY
THE EMPLOYEE, PROMPTLY CORRECT ANY ERRORS OR OMISSIONS, AND EITHER
AFFIRM, MODIFY, OR REVERSE ITS ORIGINAL FINDINGS IN WRITING.  20 CFR
609.9.  FINALLY, THE STATE IS REQUIRED TO STAY ITS ADJUDICATORY PROCESS
PENDING FEDERAL RECONSIDERATION, ALTHOUGH IT IS CONCLUSIVELY BOUND BY
ANY FACTUAL FINDINGS OF THE FEDERAL AGENCY, 20 CFR 609.23(A),
609.18(C), WHEN IT APPLIES ITS OWN LAW TO REDETERMINE ELIGIBILITY.  20
CFR 609.24(C), (D). 

APPELLANTS' CONTENTION THAT 8506(A) WORKS A DENIAL OF DUE PROCESS
AND EQUAL PROTECTION BY DEPRIVING THEM OF A HEARING BEFORE THE STATE
AGENCY IS THUS MISDIRECTED.  CONGRESS HAS PRECLUDED A HEARING ON THE
FEDERAL FINDINGS IN ANY STATE FORUM, BUT IT HAS REQUIRED THE SECRETARY
OF LABOR TO PROVIDE A "HEARING" OF SOME DIMENSIONS IN CONJUNCTION WITH
THE MANDATED PROCEDURES FOR RECONSIDERATION.  WHETHER A MORE
COMPREHENSIVE HEARING THAN 609.22 - 609.24 OF THE REGULATIONS NOW
PROVIDE IS REQUIRED EITHER BY THE LANGUAGE OF 8506(A) OR BY THE
CONSTITUTION--AND WE INTIMATE NO VIEWS ON THOSE QUESTIONS--THE
REGUALTIONS OF THE DEPARTMENT OF LABOR, AS IMPLEMENTED BY THE FEDERAL
AGENCIES SUBJECT TO THOSE REGULATIONS, SHOULD BE THE FOCAL POINT OF THE
INQUIRY.  /7/ 

THE ABSENCE OF ANY INDICATION IN THE RECORD THAT THIS FEDERAL
ADMINISTRATIVE PROCEDURE WAS FOLLOWED IS, IN OUR VIEW, A BAR TO OUR
CONSIDERATION OF APPELLANTS'  ATTACK UPON THE VALIDITY OF THE
REGULATIONS.  IT IS TRUE THAT THE FACT THAT THE EMPLOYING AGENCY'S
DECISION IS NOT STATUTORILY SUBJECT TO JUDICIAL REVIEW DOES NOT
PRECLUDE REVIEW OF THE AGENCY'S PROCEDURE USED TO REACH THAT
DETERMINATION.  SEE COLE V. YOUNG, 351 U.S. 536 (1956); L. JAFFE,
JUDICIAL CONTROL AF ADMINISTRATIVE ACTION 371 - 372 (1965).  BUT THERE
ARE SOUND PRACTICAL REASONS FOR DECLINING SUCH REVIEW WHERE THE AGENCY
HAS NOT HAD THE OPPORTUNITY TO APPLY ITS CHALLENGED PROCEDURE TO A
DETERMINATION THAT IS CLEARLY WITHIN ITS SUBJECT-MATTER JURISDICTION. 

THE MOST OBVIOUS REASONS RELATE TO ECONOMY.  A FAVORABLE AGENCY
DECISION ON THE MERITS OF THE CLAIM MAY MOOT THE OBJECTIONS TO THE
PROCEDURE EMPLOYED.  AND "IT IS GENERALLY MORE EFFICIENT FOR THE
ADMINISTRATIVE PROCESS TO GO FORWARD WITHOUT INTERRUPTION THAN IT IS TO
PERMIT THE PARTIES TO SEEK AID FROM THE COURTS AT VARIOUS INTERMEDIATE
STAGES," MCKART V. UNITED STATES, 395 U.S. 185, 194 (1969). 

BUT THERE ARE ALSO PERSUASIVE REASONS MORE DIRECTLY RELATED TO THE
PRESENTATION OF THE PROCEDURAL CLAIM, AS WE HAVE NOTED IN CASES
INVOLVING THE ANALOGOUS REQUIREMENT THAT ADMINISTRATIVE REMEDIES BE
EXHAUSTED PRIOR TO APPLICATION FOR JUDICIAL REVIEW OF THE MERITS.  SEE
MCGEE V. UNITED STATES, 402 U.S. 479 (1971); ROSADO V. WYMAN, 397 U.S.
397, 406 - 407 (1970).  APPELLANTS' CRITICISM, ON THIS APPEAL, OF THE
FEDERAL ADMINISTRATIVE REMEDY AS AN "ES PARTE" DETERMINATION AMPLY
DEMONSTRATES THE POINT.  THE REGULATIONS CLEARLY REQUIRE THAT THE
AGENCY RECEIVE AND CONSIDER ANY ADDITIONAL INFORMATION THE EMPLOYEE
SUBMITS.  THUS, THE QUESTION IS NOT WHETHER THERE IS TO BE SOME FORM OF
ADVERSARY PROCEEDING, BUT WHETHER THAT PROCEEDING MUST BE AS ELABORATE
AS APPELLANTS CONTEND.  /8/  THAT DETERMINATION WOULD BE HAZARDOUS ON
THE SCANT RECORD BEFORE US.  THE REGULATIONS APPEAR CAPABLE OF
ACCOMMODATING VARIOUS KINDS OF ISSUES, AND THEIR REQUUREMENTS SHOULD BE
CONSTRUED WITH AN EYE TO THE NATURE OF THE AGENCIES INVOLVED AND THE
EMPLOYMENT RELATIONSHIP.  WE CANNOT KNOW AT THIS STAGE WHAT PARTICULAR
PROCEDURES WILL BE APPLIED, WHETHER CREDIBILITY DETERMINATIONS WILL
ARISE, HOW THEY WILL BE TREATED IF THEY DO, OR EVEN WHAT OFFICAL WITHIN
A FEDERAL EMPLOYING AGENCY WILL BE RESPONSIBLE FOR THE
RECONSIDERATION.  REMOVAL OF THESE UNCERTAINTIES FROM THE CASE MAY
SIGNIFICANTLY ADVANCE JUDICIAL RESOLUTION OF APPELLANTS' CLAIMS, WHILE
OCCASIONING NO GREAT COST TO THEM.  /9/ 

BUT WE CANNOT DETERMINE ON THIS RECORD WHETHER THE DISTRICT COURT
WOULD HAVE DISMISSED THIS SUIT FOR FAILURE TO INVOKE THE FEDERAL
ADMINISTRATIVE PROCEDURES.  THE ADVERSE NOTIFIACTION PROVIDED BY NEW
YORK CLEARLY FAILS TO SATISFY THE NOTICE REQUIREMENT OF 20 CFR 609.20
OF THE SECRETARY'S REGULATIONS.  WITHOUT THAT CRUCIAL INFORMATION
CONCERNING THEIR RIGHTS, APPELLANTS COULD HARDLY BE FOUND TO HAVE
WAIVED THEM BY PROCEEDING IN THE STATE FORUM.  /10/  YET THE RECORD IS
SILENT CONCERNING WHETHER SUCH INFORMATION WAS PROVIDED, EITHER WITH
THE STATE NOTICE OR OTHERWISE.  UNDER THE CIRCUMSTANCES, WE VACATE THE
DISTRICT COURT'S DISMISSAL OF THE SUIT AS TO BOTH FEDERAL AND STATE
DEFENDANTS AND REMAND TO THE DISTRICT COURT WITH DIRECTIONS TO
DETERMINE WHETHER APPELLANTS SHOULD BE PERMITTED TO INVOKE THE FEDERAL
PROCEDURES.  IN SUCH CASE, THE SUIT SHOULD BE RETAINED ON THE DOCKET
FOR FINAL DECISION FOLLOWING THE FEDERAL REDETERMINATION PROCEEDINGS. 

              SO ORDERED. 

/1/  THAT SUBSECTION PROVIDES: 

"(A) EACH AGENCY OF THE UNITED STATES AND EACH WHOLLY OR PARTIALLY
OWNED INSTRUMENTALITY OF THE UNITED STATES SHALL MAKE AVAILABLE TO
STATE AGENCIES WHICH HAVE AGREEMENTS UNDER THIS SUBCHAPTER, OR TO THE
SECRETARY OF LABOR, AS THE CASE MAY BE, SUCH INFORMATION CONCERNING THE
FEDERAL SERVICE AND FEDERAL WAGES OF A FEDERAL EMPLOYEE AS THE
SECRETARY CONSIDERS PRACTICABLE AND NECESSARY FOR THE DETERMINATION OF
THE ENTITLEMENT OF THE FEDERAL EMPLOYEE TO COMPENSATION UNDER THIS
SUBCHAPTER.  THE INFORMATION SHALL INCLUDE THE FINDINGS OF THE
EMPLOYING AGENCY CONCERNING-- 

"(1) WHETHER OR NOT THE FEDERAL EMPLOYEE HAS PERFORMED FEDERAL
SERVICE; 

"(2) THE PERIODS OF FEDERAL SERVICE; 

"(3) THE AMOUNT OF FEDERAL WAGES; AND 

"(4) THE REASONS FOR TERMINATION OF FEDERAL SERVICE. 

"THE EMPLOYING AGENCY SHALL MAKE THE FINDINGS IN THE FORM AND MANNER
PRESCRIBED BY REGULATIONS OF THE SECRETARY.  THE REGULATIONS SHALL
INCLUDE PROVISION FOR CORRECTION BY THE EMPLOYING AGENCY OF ERRORS AND
OMISSIONS.  FINDINGS MADE IN ACCORDANCE WITH THE REGULATIONS ARE FINAL
AND CONCLUSIVE FOR THE PURPOSE OF SECTIONS 8502(D) AND 8503(C) OF THIS
TITLE.  THIS SUBSECTION DOES NOT APPLY WITH RESPECT TO FEDERAL SERVICE
AND FEDERAL WAGES COVERED BY SUBCHAPTER II OF THIS CHAPTER."     /2/
THE PERTINENT SECTIONS OF 20 CFR APPEAR IN THE APPENDIX ATTACHED TO
THIS OPINION. 

/3/  THE DISTRICT COURT STATED NO REASONS TO SUPPORT THIS HOLDING. 
APPELLANTS ATTACK IT, ARGUING THAT MANDAMUS JURISDICTION LIES WHERE THE
ACT OF A FEDERAL OFFICIAL, ALTHOUGH AUTHORIZED BY STATUTE, IS ALLEGED
TO VIOLATE THE CONSTITUTION, CITING GARFIELD V. UNITED STATES EX REL.
GOLDSBY, 211 U.S. 249 (1908).  ALTERNATIVELY, THEY CONTEND THAT
JURISDICTION OVER THE FEDERAL DEFENDANTS LIES UNDER 28 U.S.C. 1343(3)
SO LONG AS THERE HAS BEEN JOINT PARTICIPATION BY STATE AND FEDERAL
OFFICERS UNDER COLOR OF STATE LAW, SEE ADICKES V. S. H. KRESS & CO. 398
U.S. 144 (1970).  AT ORAL ARGUMENT THE ASSISTANT TO THE SOLICITOR
GENERAL STATED:  "(WE DO NOT CONTEST JURISDICTION UNDER (THE) MANDAMUS
STATUTE."  TR. OF ORAL ARG. 26.  SEE ALSO BRIEF FOR FEDERAL APPELLEE 6
N. 2. 

WE HAVE NO OCCASION TO ADDRESS APPELLANTS' CONTENTIONS THAT THE
DISTRICT COURT HAS JURISDICTION TO HEAR THE CONSTITUTIONAL CLAIMS
AGAINST THE FEDERAL DEFENDANTS.  THERE IS JURISDICTION OF THE FEDERAL
DEFENDANTS IN ANY EVENT FOR PURPOSES OF CONSIDERATION OF THE
APPELLANTS' STATUTORY CLAIM THAT THE SECRETARY HAS DISOBEYED A
NONDISCRETIONARY COMMAND IN 8506 THAT HE PROVIDE FOR A FULL HEARING. 
SEE INFRA, AT 621 - 622.  OUR REMAND DIRECTS THAT THE DISTRICT COURT
RECONSIDER THAT CLAIM AS RELATED TO THE AVAILABILITY UNDER THE
SECRETARY'S REGULATIONS OF A RIGHT OF RECONSIDERATION AND CORRECTION OF
THE FINDINGS OF THE EMPLOYING AGENCIES. 

/4/  APPELLANT GREEN UNSUCCESSFULLY SOUGHT REIVEW OF THE FACTUAL
BASIS FOR HIS DISCHARGE BY THE CIVIL SERVICE COMMISSION UNDER 5 CFR
315.806.  BUT, AS PROVIDED BY THAT REGULATION, A PROBATIONARY FEDERAL
EMPLOYEE HAS NO RIGHT TO APPEAL A DISCHARGE, AND IS ONLY ENTITLED TO A
HEARING ON THE BASIS OF CLAIMS THAT THE DISCHARGE RESULTED FROM
DISCRIMINATION BASED ON RACE, COLOR, RELIGION, SEX, POLITICAL
PERSUASION, MARITAL STATUS, OR PHYSICAL HANDICAP, OR THAT THE PROCEDURE
USED VIOLATED 5 CFR 315.805. 

/5/  SECTION 8502, 5 U.S.C., PROVIDES IN PART: 

"(B) THE AGREEMENT SHALL PROVIDE THAT COMPENSATION WILL BE PAID BY
THE STATE TO A FEDERAL EMPLOYEE IN THE SAME AMOUNT, ON THE SAME TERMS,
AND SUBJECT TO THE SAME CONDITIONS AS THE COMPENSATION WHICH WOULD BE
PAYABLE TO HIM UNDER THE UNEMPLOYMENT COMPENSATION LAW OF THE STATE IF
HIS FEDERAL SERVICE AND FEDERAL WAGES ASSIGNED UNDER SECTION 8504 OF
THIS TITLE TO THE STATE HAD BEEN INCLUDED AS EMPLOYMENT AND WAGES UNDER
THAT STATE LAW. 

        .          .          .          . 

"(D) A DETERMINATION BY A STATE AGENCY WITH RESPECT TO ENTITLEMENT
TO COMPENSATION UNDER AN AGREEMENT IS SUBJECT TO REVIEW IN THE SAME
MANNER AND TO THE SAME EXTENT AS DETERMINATION UNDER THE STATE
UNEMPLOYMENT COMPENSATION LAW, AND ONLY IN THAT MANNER AND TO THAT
EXTENT." 

SEE 20 CFR 609.14; N.Y. LABOR LAW 500 ET SEQ. (1965).  BOTH
APPELLANTS WERE DENIED COMPENSATION ON THE BASIS OF 593, WHICH INCLUDES
AS GROUNDS FOR DENIAL "VOLUNTARY SEPARATION WITHOUT GOOD CAUSE" AND
"MISCONDUCT IN CONNECTION WITH HIS EMPLOYMENT." 

/6/  BOTH APPELLANTS WERE ENTITLED TO A HEARING, N.Y. LABOR LAW 620,
REVIEW BY THE APPEALS BOARD, ID., 621, AND STATE JUDICIAL REVIEW ON
QUESTIONS OF LAW, ID., 624. 

/7/  WE NOTE THAT AN EMPLOYEE WHO RESIGNS MUST, PURSUANT TO 20 CFR
609.18, BE "AFFORDED AN OPPORTUNITY FOR A FAIR HEARING ON ANY ISSUE
INVOLVED IN THE ALLEGED REASONS FOR RESIGNATION," IF THE FEDERAL
FINDINGS ARE TO BE FINAL AND CONCLUSIVE.  THE SOLICITOR GENERAL ARGUES
THAT THERE ARE SOUND REASONS FOR LIMITING SUCH OPPORTUNITIES TO
RESIGNEES SINCE THE AGENCY "WILL HAVE NO INFORMATION CONCERNING (THEIR)
REASONS."  BRIEF FOR FEDERAL APPELLEES 28.  AT THIS STAGE OF THE
LITIGATION, HOWEVER, WE HAVE NO WAY OF KNOWING WHAT PROTECTIONS THIS
PROCEDURE INCLUDES, HOW IT DIFFERS FROM THE PROCEDURES AVAILABLE TO
DISCHARGED EMPLOYEES, OR WHAT KINDS OF "RESIGNATIONS" IT WILL COVER. 

/8/  "(CONSIDERATION OF WHAT PROCEDURES DUE PROCESS MAY REQUIRE
UNDER ANY GIVEN SET OF CIRCUMSTANCES MUST BEGIN WITH A DETERMINATION OF
THE PRECISE NATURE OF THE GOVERNMENT FUNCTION INVOLVED AS WELL AS OF
THE PRIVATE INTEREST THAT HAS BEEN AFFECTED BY GOVERNMENTAL ACTION." 
CAFETERIA & RESTAURANT WORKERS V. MCELROY, 367 U.S. 886, 895 (1961). 

SEE MORRISSEY V. BREWER, 408 U.S. 471 (1972); BELL V. BURSON, 402
U.S. 535 (1971). 

/9/  CF. MCKART V. UNITED STATES, 395 U.S. 185, 196 - 197 (1969). 

/10/  AT ORAL ARGUMENT THE ASSISTANT TO THE SOLICITOR GENERAL
SUGGESTED THAT APPELLANTS MIGHT NOW BE BARRED FROM OBTAINING
RECONSIDERATION AND CORRECTION OF THE FINDINGS BY THE PASSAGE OF TIME. 
WE FIND NO SUCH LIMITATION IN THE REGULATIONS.  INDEED, THE ONLY TIME
LIMITATION IMPOSED WITH REGARD TO CORRECTIONS IS TO BE FOUND IN 20 CFR
609.7, WHICH REQUIRES THE FEDERAL EMPLOYING AGENCY TO "PROMPTLY CORRECT
ITS ERROR" IF IT ASCERTAINS WITHIN ONE YEAR OF ITS INITIAL SUBMISSION
OF FINDINGS TO THE STATE THAT "ANY OF ITS FEDERAL FINDINGS WERE
ERRONEOUS."  THAT THIS IS AN INDEPENDENT OBLIGATION, IMPOSED ON THE
AGENCY WITHOUT REGARD TO THE RECEIPT OF A REQUEST FOR RECONSIDERATION
BY THE EMPLOYEE, IS CLEAR BOTH FROM THE LANGUAGE OF THE REGULATION AND
FROM THE FACT THAT ALL OTHER TIME LIMITS IMPOSED BY THE REGULATIONS ARE
DESIGNED TO PROTECT THE EMPLOYEE FROM DELAY BY THE AGENCY.  SEE, E.G.,
20 CFR 609.6, 609.19(B).  COMPARE ID., 609.24(A), WITH ID., 609.24(D). 
MOREOVER, A CONSTRUCTION OF THE REGULATION AS BARRING RECONSIDERATION
AND CORRECTION DESPITE THE STATE'S FAILURE TO RPOVIDE THE NOTICE
REQUIRED BY THE REGUALTIONS MIGHT RAISE INDEPENDENT CONSTITUTIONAL
PROBLEMS. 

        APPENDIX TO OPINION OF THE COURT

        CODE OF FEDERAL REGUALTIONS

        TITLE 20:  EMPLOYEES' BENEFITS

        PART 609--UNEMPLOYMENT COMPENSATION FOR FEDERAL CIVILIAN

           EMPLOYEES 

609.1 DEFINITIONS. 

(B) "FEDERAL AGENCY" MEANS ANY DEPARTMENT, AGENCY, OR GOVERNMENTAL
BODY OF THE UNITED STATES, INCLUDING ANY INSTRUMENTALITY WHOLLY OR
PARTIALLY OWNED BY THE UNITED STATES, EMPLOYING INDIVIDUALS IN FEDERAL
CIVILIAN SERVICE. 

        .          .          .          . 

(F) "FEDERAL FINDINGS" MEANS THE FACTS FOUND BY A FEDERAL AGENCY AS
TO (1) WHETHER AN INDIVIDUAL HAS PERFORMED FEDERAL CIVILIAN SERVICE FOR
SUCH AGENCY DURING THE BASE PERIOD SPECIFIED ON A FORM ES - 931; (2)
THE PERIOD OR PERIODS OF SUCH FEDERAL CIVILIAN SERVICE; (3) THE
INDIVIDUAL'S FEDERAL CIVILIAN WAGES FOR THE BASE PERIOD SPECIFIED ON
SUCH FORM; AND (4) THE REASONS FOR TERMINATION OF HIS FEDERAL CIVILIAN
SERVICE. 

        .          .       .          . 

609.6 FEDERAL FINDINGS ON FORM ES - 931. 

(A) WITHIN 4 WORK DAYS AFTER RECEIPT FROM A STATE AGENCY OR THE
SECRETARY OF A FORM ES - 931 A FEDERAL AGENCY SHALL MAKE ITS FEDERAL
FINDINGS, COMPLETE ALL COPIES OF THE FORM, AND TRANSMIT ITS FEDERAL
FINDINGS TO THE STATE AGENCY OR THE SECRETARY, AS APPROPRIATE, ON SUCH
FORM OR AS A PART THEREOF.  IF DOCUMENTS NECESSARY FOR COMPLETION OF A
FORM ES - 931 HAVE BEEN ASSIGNED TO AN AGENCY RECORDS CENTER OR THE
FEDERAL RECORDS CENTER IN ST. LOUIS THE FEDERAL AGENCY SHALL OBTAIN THE
NECESSARY INFORMATION FROM THE RECORDS CENTER.  ANY RECORDS CENTER
SHALL GIVE PRIORITY TO SUCH REQUEST. 

(B) IF A COMPLETED FORM ES - 931 CANNOT BE RETURNED WITHIN 4 WORKS
DAYS OF RECEIPT THE FEDERAL AGENCY IMMEDIATELY SHALL INFORM THE STATE
AGENCY OR THE SECRETARY, AS APPROPRIATE, AND SHALL INCLUDE AN ESTIMATED
DATE BY WHICH THE COMPLETED FORM WILL BE RETURNED. 

(C) EACH FEDERAL AGENCY SHALL MAINTAIN A CONTROL OF THE FORMS ES -
931 RECEIVED BY IT THAT WILL ENABLE IT TO ASCERTAIN AT ANY TIME THE
NUMBER OF SUCH FORMS THAT HAVE NOT BEEN RETURNED TO THE REQUESTING
STATE AGENCY OR THE SECRETARY AND THE DATE OF THE FEDERAL AGENCY'S
RECEIPT OF SUCH UNRETURNED FORMS. 

609.7 CORRECTED FEDERAL FINDINGS. 

IF A FEDERAL AGENCY ASCERTAINS AT ANY TIME WITHIN 1 YEAR AFTER IT
HAS RETURNED A COMPLETED FORM ES - 981 TO A STATE AGENCY OR THE
SECRETARY THAT ANY OF ITS FEDERAL FINDINGS WERE ERRONEOUS IT SHALL
PROMPTLY CORRECT ITS ERROR AND FORWARD CORRECTED FEDERAL FINDINGS TO
THE STATE AGENCY OR THE SECRETARY, AS APPROPRIATE. 

609.8 ANSWERING REQURESTS FOR ADDITIONAL INFORMATION. 

ON RECEIPT OF A REQUEST FOR ADDITIONAL INFORMATION UNDER 609.22 A
FEDERAL AGENCY EXCEPT WHERE IT WOULD BE INCONSISTENT WITH GENERAL
POLICIES FOLLOWED IN THE CASE OF SEPARATIONS FOR SECURITY REASONS SHALL
FURNISH IN WRITING TO THE REQUESTING AUTHORITY SUCH ADDITIONAL
INFORMATION AS (1) WILL ENABLE A FEDERAL CIVILIAN EMPLOYEE TO
UNDERSTAND THE BASIS FOR FEDERAL FINDINGS OR (2) WILL ENABLE THE
REQUESTING AUTHORITY TO CORRECTLY APPLY A STATE UNEMPLOYMENT
COMPENSATION LAW. 

609.9 ANSWERING REQUESTS FOR CORRECTION OF FEDERAL FINDINGS. 

ON RECEIPT OF A REQUEST FOR RECONSIDERATION AND CORRECTION OF
FEDERAL FINDINGS UNDER 609.23 A FEDERAL AGENCY SHALL CONSIDER THE
INFORMATION SUPPLIED IN CONNECTION WITH SUCH REQUEST AND SHALL REVIEW
ITS FEDERAL FINDINGS.  THE FEDERAL AGENCY PROMPTLY SHALL CORRECT ANY
ERRORS OR OMISSIONS IN ITS FEDERAL FINDINGS AND SHALL AFFIRM MODIFY, OR
REVERSE ANY OR ALL OF ITS FEDERAL FINDINGS IN WRITING.  THE FEDERAL
AGENCY THEN SHALL FORWARD ITS RECONSIDERED FEDERAL FINDINGS TO THE
REQUESTING AUTHORITY. 

.          .          .          . 

609.18 FINALITY OF FEDERAL FINDINGS. 

(A) FEDERAL FINDINGS UNDER 609.6 OR 609.7 SHALL BE FINAL AND
CONCLUSIVE EXCEPT THAT FEDERAL FINDINGS WHICH CONTRADICT THE REASONS
GIVEN BY A FEDERAL CIVILIAN EMPLOYEE FOR HIS RESIGNATION OR WHICH
RELATE TO THE VALIDITY OF SUCH REASONS SHALL NOT BE FINAL AND
CONCLUSIVE UNLESS SUCH EMPLOYEE HAS BEEN AFFORDED AN OPPORTUNITY FOR A
FAIR HEARING ON ANY ISSUE INVOLVED IN THE ALLEGED REASONS FOR
RESIGNATION.  SUCH OPPORTUNITY FOR HEARING MAY BE AFFORDED BY THE
FEDERAL AGENCY OR THE U.S. CIVIL SERVICE COMMISSION AT ANY APPROPRIATE
STAGE WITH RESPECT TO ANY PERSONNEL ACTION, OR UPON REQUEST FOR
RECONSIDERATION UNDER 609.23. 

(B) ADDITIONAL INFORMATION SUBMITTED BY A FEDERAL AGENCY UNDER 609.8
SHALL BE CONSIDERED PART OF THE ORIGINAL FEDERAL FINDINGS WHICH, AS SO
SUPPLEMENTED, SHALL BE FINAL AND CONCLUSIVE, AS PROVIDED IN PARAGRAPH
(A) OF THIS SECTION. 

(C) FEDERAL FINDINGS WHICH AFTER RECONSIDERATION UNDER 609.9 HAVE BEEN
AFFIRMED, MODIFIED, OR REVERSED BY THE FEDERAL AGENCY SHALL BE FINAL
AND CONCLUSIVE, AS PROVIDED IN PARAGRAPH (A) OF THIS SECTION. 

609.19 DETERMINATION OF ENTITLEMENT. 

(A) ENTITLEMENT.  THE STATE AGENCY OF A STATE WHOSE UNEMPLOYMENT
PROMPTLY SHALL DETERMINE SUCH EMPLOYEE'S ENTITLEMENT TO COMPENSATION
AND PAY SUCH COMPENSATION IN THE SAME AMOUNTS, ON THE SAME TERMS, AND
SUBJECT TO THE SAME CONDITIONS AS WOULD APPLY TO SUCH EMPLOYEE IF HIS
FEDERAL CIVILIAN SERVICE AND WAGES HAD BEEN INCLUDED AS EMPLOYMENT AND
WAGES UNDER THE STATE UNEMPLOYMENT COMPENSATION LAW EXCEPT THAT 609.31
SHALL APPLY TO THE VIRGIN ISLANDS AGENCY IN LIEU OF THIS PARAGRAPH. 

(B) DETERMINATION IN ABSENCE OF FORM ES - 931.  (1) IF A FORM ES -
931 HAS NOT BEEN RECEIVED FROM A FEDERAL AGENCY BY THE 12TH DAY AFTER
SUCH FORM WAS FORWARDED TO SUCH AGENCY, A STATE AGENCY SHALL DETERMINE
ENTITLEMENT TO COMPENSATION ON THE BASIS OF A FEDERAL CIVILIAN
EMPLOYEE'S STATEMENT UNDER OATH IF IN ADDITION TO FURNISHING SUCH
STATEMENT SUCH EMPLOYEE SUBMITS FOR EXAMINATION ANY DOCUMENT ISSUED BY
A FEDERAL AGENCY (AS FOR EXAMPLE STANDARD FORM 50 OR W - 2) SHOWING
THAT HE PERFORMED SERVICE FOR SUCH AGENCY. 

(2) IF A FORM ES - 931 RECEIVED FROM A FEDERAL AGENCY AFTER SUCH
DETERMINATION CONTAINS FEDERAL FINDINGS WHICH WOULD RESULT IN A CHANGE
IN THE FEDERAL CIVILIAN EMPLOYEE'S ENTITLEMENT TO COMPENSATION THE
STATE AGENCY PROMPTLY SHALL MAKE A REDETERMINATION AND GIVE SUCH
EMPLOYEE NOTICE THEREOF.  ALL PAYMENTS OF COMPENSATION MADE AFTER SUCH
REDETERMINATION SHALL BE IN ACCORDANCE THEREWITH AND ALL PAYMENTS OF
COMPENSATION MADE PRIOR TO SUCH DETERMINATION SHALL BE ADJUSTED IN
ACCORDANCE THEREWITH.  IF THE FEDERAL CIVILIAN EMPLOYEE HAS RECEIVED
COMPENSATION NOT IN ACCORDANCE WITH THE REDETERMINATION 609.21 SHALL
APPLY. 

609.20 NOTICE OF DETERMINATION. 

A NOTICE OF DETERMINATION OR REDETERMINATION SHALL BE GIVEN TO A
FEDERAL CIVILIAN EMPLOYEE WITH RESPECT TO ANY DETERMINATION OR
REDETERMINATION UNDER 609.19 OR 609.31.  SUCH NOTICE SHALL BE GIVEN IN
THE SAME MANNER AS NOTICE OF DETERMINATION OR REDETERMINATION IS GIVEN
TO CLAIMANTS UNDER THE STATE UNEMPLOYMENT COMPENSATION LAW.  THE NOTICE
SHALL INCLUDE THE FEDERAL FINDINGS AND SHALL INFORM THE FEDERAL
CIVILIAN EMPLOYEE OF HIS RIGHT TO ADDITIONAL INFORMATION OR
RECONSIDERATION AND CORRECTION OF SUCH FINDINGS.  THE STATE AGENCY
SHALL SET FORTH THE FEDERAL FINDINGS IN SUFFICIENT DETAIL TO ENABLE THE
FEDERAL CIVILIAN EMPLOYEE TO DETERMINE WHETHER HE WISHES TO REQUEST
RECONSIDERATION OR CORRECTION OF ANY SUCH FINDINGS. 

        .          .          .          . 

609.22 REOCEDURE FOR OBTAINING ADDITIONAL INFORMATION. 

(A) REQUEST BY FEDERAL CIVILIAN EMPLOYEE.  IF A FEDERAL CIVILIAN
EMPLOYEE NEEDS ADDITIONAL INFORMATION IN ORDER TO UNDERSTAND THE BASIS
FOR A FEDERAL FINDING IN CONNECTION WITH A CLAIM FOR COMPENSATION UNDER
THE UCFE PROGRAM HE MAY FILE A REQUEST THROUGH THE STATE AGENCY, OR THE
SECRETARY IF THE STATE AGENCY DOES NOT DETERMINE CLAIMS UNDER THE UCFE
PROGRAM, FOR MORE SPECIFIC INFORMATION FROM THE FEDERAL AGENCY WHICH
MADE SUCH FEDERAL FINDING.  SUCH REQUEST SHALL BE MAILED BY THE STATE
AGENCY OR THE SECRETARY TO THE APPROPRIATE FEDERAL AGENCY.  IF NOTICE
OF A DETERMINATION OF ENTITLEMENT HAS BEEN GIVEN TO THE FEDERAL
CIVILIAN EMPLOYEE BEFORE A REQUEST FOR ADDITIONAL INFORMATION IS FILED,
SUCH EMPLOYEE MUST FILE CONCURRENTLY WITH SUCH REQUEST A TIMELY APPEAL
OR REQUEST FOR REDETERMINATION UNDER THE STATE UNEMPLOYMENT
COMPENSATION LAW.  NO HEARING ON SUCH APPEAL SHALL BE SCHEDULED BEFORE
THE STATE AGENCY RECEIVES FROM THE FEDERAL AGENCY THE ADDITIONAL
INFORMATION REQUESTED.     (B) REQUEST BY STATE AGENCY.  IF AT ANY
STAGE OF DETERMINING A FEDERAL CIVILIAN EMPLOYEE'S ENTITLEMENT TO
COMPENSATION A STATE AGENCY, STATE ADMINISTRATIVE APPEAL AUTHORITY
(INCLUDING THE REFEREE IN THE VIRGIN ISLANDS), OR THE SECRETARY
DETERMINES THAT FEDERAL FINDINGS DO NOT CONTAIN SUFFICIENT INFORMATION
TO ENABLE CORRECT APPLICATION OF THE STATE UNEMPLOYMENT COMPENSATION
LAW A REQUEST MAY BE MADE FOR ADDITIONAL FACTS FROM THE APPROPRIATE
FEDERAL AGENCY.     609.23 PROCEDURE FOR OBTAINING CORRECTION OF
FEDERAL FINDINGS. 

(A) REQUEST BY FEDERAL CIVILIAN EMPLOYEE.  A FEDERAL CIVILIAN
EMPLOYEE WHO WISHES A FEDERAL AGENCY TO RECONSIDER AND CORRECT FEDERAL
FINDINGS IN CONNECTION WITH A CLAIM FOR COMPENSATION UNDER THE UCFE
PROGRAM MAY FILE A REQUEST FOR SUCH RECONSIDERATION AND CORRECTION,
TOGETHER WITH SUCH INFORMATION AS SUPPORTS HIS REQUEST, THROUGH THE
STATE AGENCY BEFORE WHICH THE CLAIM IS PENDING OR THROUGH THE SECRETARY
IF THE STATE AGENCY DOES NOT DETERMINE CLAIMS UNDER THE UCFE PROGRAM. 
SUCH REQUEST SHALL BE MAILED BY THE STATE AGENCY OR THE SECRETARY TO
THE APPROPRIATE FEDERAL AGENCY.  IF NOTICE OF A DETERMINATION OF
ENTITLEMENT HAS BEEN GIVEN TO THE FEDERAL CIVILIAN EMPLOYEE BEFORE A
REQUEST FOR RECONSIDERATION AND CORRECTION OF FEDERAL FINDINGS IS
FILED, SUCH EMPLOYEE MUST FILE CONCURRENTLY WITH SUCH REQUEST A TIMELY
APPEAL UNDER THE STATE UNEMPLOYMENT COMPENSATION LAW.  NO HEARING ON
SUCH APPEAL SHALL BE SCHEDULED BEFORE THE STATE AGENCY RECEIVES FROM
THE FEDERAL AGENCY ITS RECONSIDERED FEDERAL FINDINGS. 

(B) REQUEST BY STATE AGENCY.  A STATE AGENCY, STATE ADMINISTRATIVE
APPEAL AUTHORITY (INCLUDING THE REFEREE IN THE VIRGIN ISLANDS), OR THE
SECRETARY MAY REQUEST A FEDERAL AGENCY TO RECONSIDER AND CORRECT ITS
FEDERAL FINDINGS AT ANY STAGE IN DETERMINING A FEDERAL CIVILIAN
EMPLOYEE'S ENTITLEMENT TO COMPENSATION. 

609.24 PROCEDURE AFTER CORRECTION OF FEDERAL FINDINGS. 

(A) A STATE AGENCY SHALL FORWARD TO THE AFFECTED FEDERAL CIVILIAN
EMPLOYEE A COPY OF RECONSIDERED FEDERAL FINDINGS OR ADDITIONAL
INFORMATION FURNISHED BY A FEDERAL AGENCY. 

(B) IF ADDITIONAL INFORMATION OR RECONSIDERED FEDERAL FINDINGS
PROVIDE A BASIS UNDER THE STATE UNEMPLOYMENT COMPENSATION LAW FOR THE
STATE AGENCY TO REDETERMINE SUCH EMPLOYEE'S ENTITLEMENT TO COMPENSATION
THE STATE AGENCY PROMPTLY SHALL MAKE A REDETERMINATION AND GIVE NOTICE
THEREOF TO THE AFFECTED FEDERAL CIVILIAN EMPLOYEE. 

(C) IF A STATE AGENCY AFTER REVIEWING ADDITIONAL INFORMATION OR
RECONSIDERED FEDERAL FINDINGS SUBMITTED BY A FEDERAL AGENCY DOES NOT
CONSIDER THAT THERE IS A BASIS FOR MAKING A REDETERMINATION THE STATE
AGENCY PROMPTLY SHALL SET A DATE FOR HEARING THE FEDERAL CIVILIAN
EMPLOYEE'S APPEAL. 

(D) IF FEDERAL FINDINGS ARE CORRECTED UNDER 609.7 A STATE AGENCY
SHALL NOTIFY THE AFFECTED FEDERAL CIVILIAN EMPLOYEE OF SUCH
CORRECTION.  IF THE STATE UNEMPLOYMENT COMPENSATION LAW PERMITS AND THE
CORRECTED FEDERAL FINDINGS AFFORD A BASIS FOR SUCH ACTION THE STATE
AGENCY SHALL REDETERMINE SUCH EMPLOYEE'S ENTITLEMENT TO COMPENSATION
AND GIVE NOTICE OF REDETERMINATION TO SUCH EMPLOYEE. 

609.25 APPEAL BY FEDERAL CIVILIAN EMPLOYEE. 

(A) A DETERMINATION OR REDETERMINATION BY A STATE AGENCY AS TO A
FEDERAL CIVILIAN EMPLOYEE'S ENTITLEMENT TO COMPENSATION IS SUBJECT TO
REVIEW, EXCEPT FOR FEDERAL FINDINGS WHICH ARE FINAL AND CONCLUSIVE
UNDER 609.18, IN THE SAME MANNER AND TO THE SAME EXTENT AS OTHER
DETERMINATIONS OF ENTITLEMENT UNDER THE STATE UNEMPLOYMENT COMPENSATION
LAW. 

.          .          .          . 

E. RICHARD LARSON ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE DENNIS R. YEAGER AND ROBERT P. ROBERTS. 

MARK L. EVANS ARGUED THE CAUSE FOR APPELLEES.  ON THE BRIEF FOR THE
FEDERAL APPELLEES WERE SOLICITOR GENERAL BORK, ACTING ASSISTANT
ATTORNEY GENERAL JAFFE, KEITH A. JONES, AND KATHRYN H. BALDWIN.  LOUIS
J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUAL A. HIRSHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND BRENDA SOLOFF, ASSISTANT ATTORNEY
GENERAL, FILED A BRIEF FOR APPELLEES NEW YORK STATE DEPARTMENT OF LABOR
ET AL.  /1/ 

/1/  MOZART G. RATNER, GEORGE B. DRIESEN, LEO M. PELLERZI, AND
GEORGE KAUFMANN FILED A BRIEF FOR THE NATIONAL ASSOCIATION OF LETTER
CARRIERS AFL-CIO ET AL. AS AMICI CURIAE URGING REVERSAL. 
..END :







CLEVELAND BOARD OF EDUCATION V. LAFLEUR, 414 U.S. 632 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 72 - 777.  ARGUED OCTOBER 15, 1973--DECIDED JANUARY 21,

           1974; /1/ NO. 72 - 777, 465 F.2D 1184, AFFIRMED; NO. 72

     - 1129, 474 F.2D 395, REVERSED AND REMANDED. 

/1/ TOGETHER WITH NO. 72-1129, COHEN V. CHESTERFIELD COUNTY SCHOOL
BOARD ET AL., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT. 


    PREGNANT PUBLIC SCHOOL TEACHERS BROUGHT THESE ACTIONS UNDER 42

  U.S.C. 1983 CHALLENGING THE CONSTITUTIONALITY OF MANDATORY

  MATERNITY LEAVE RULES OF THE CLEVELAND, OHIO (NO. 72 - 777), AND

  CHESTERFIELD COUNTY, VIRGINIA (NO. 72 - 1129), SCHOOL BOARDS. 

  THE CLEVELAND RULE REQUIRES THE TEACHER TO LEAVE WORK AT LEAST

  FOUR MONTHS, AND TO GIVE NOTICE AT LEAST SIX MONTHS, BEFORE THE

  ANTICIPATED CHILDBIRTH.  RE-EMPLOYMENT IS GUARANTEED NO LATER

  THAN THE FIRST DAY OF THE SCHOOL YEAR AFTER THE DATE SHE IS

  DECLARED RE-ELIGIBLE.  BOTH SCHEMES REQUIRE A PHYSICIAN'S

  CERTIFICATE OF PHYSICAL FITNESS PRIOR TO THE TEACHER'S RETURN. 

  EACH COURT OF APPEALS REVERSED THE COURT BELOW, ONE HOLDING THE

  CHESTERFIELD COUNTY MATERNITY LEAVE RULE CONSTITUTIONAL, THE

  OTHER HOLDING THE CLEVELAND RULE UNCONSTITUTIONAL.  HELD: 

     1.  THE MANDATORY TERMINATION PROVISIONS OF BOTH MATERNITY

  RULES VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH

  AMENDMENT.  PP. 639 - 648. 

(A) THE ARBITRARY CUTOFF DATES (WHICH OBVIOUSLY COME AT

DIFFERENT TIMES OF THE SCHOOL YEAR FOR DIFFERENT TEACHERS) HAVE

  NO VALID RELATIONSHIP TO THE STATE'S INTEREST IN PRESERVING

  CONTINUITY OF INSTRUCTION, AS LONG AS THE TEACHER IS REQUIRED TO

  GIVE SUBSTANTIAL ADVANCE NOTICE THAT SHE IS PREGNANT.  PP. 639 -

  643. 

     (B) THE CHALLENGED PROVISIONS ARE VIOLATIVE OF DUE PROCESS

  SINCE THEY CREATE A CONCLUSIVE PRESUMPTION THAT EVERY TEACHER WHO

  IS FOUR OR FIVE MONTHS PREGNANT IS PHYSICALLY INCAPABLE OF

CONTINUING HER DUTIES, WHEREAS ANY SUCH TEACHER'S ABILITY TO

  CONTINUE PAST A FIXED PREGNANCY PERIOD IS AN INDIVIDUAL MATTER;

  AND THE SCHOOL BOARDS' ADMINISTRATIVE CONVENIENCE ALONE CANNOT

  SUFFICE TO VALADATE THE ARBITRARY RULES.  PP. 643 - 648. 

     2.  THE CLEVELAND THREE-MONTH RETURN PROVISION ALSO VIOLATES

  DUE PROCESS, BEING BOTH ARBITRARY AND IRRATIONAL.  IT CREATES AN

  IRRBUTTABLE PRESUMPTION THAT THE MOTHER (WHOSE GOOD HEALTH MUST

  BE MEDICALLY CERTIFIED) IS NOT FIT TO RESUME WORK, AND IT IS NOT

  GERMANE TO MAINTAINING CONTINUITY OF INSTRUCTION, AS THE PRECISE

 POINT A CHILD WILL REACH THE RELEVANT AGE WILL OCCUR AT A

  DIFFERENT TIME THROUGHOUT THE SCHOOL YEAR FOR EACH TEACHER.  PP.

  648 - 650. 

     3.  THE CHESTERFIELD COUNTY RETURN RULE, WHICH IS FREE OF ANY

  UNNECESSARY PRESUMPTION, COMPORTS WITH DUE PROCESS REQUIREMENTS. 

  PP. 650. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLES, J., CONCURRED IN
THE RESULT.  POWELL, J., FILED AN OPINION CONCURRING IN THE RESULT,
POST, P. 651.  REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH
BURGER, C. J., JOINED, POST, P. 657. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS IN NO. 72 - 777 AND THE PETITIONER IN NO. 72 - 1129
ARE FEMALE PUBLIC SCHOOL TEACHERS.  DURING THE 1970 - 1971 SCHOOL YEAR,
EACH INFORMED HER LOCAL SCHOOL BOARD THAT SHE WAS PREGNANT; EACH WAS
COMPELLED BY A MANDATORY MATERNITY LEAVE RULE TO QUIT HER JOB WITHOUT
PAY SEVERAL MONTHS BEFORE THE EXPECTED BIRTH OF HER CHILD.  THESE CASES
CALL UPON US TO DECIDE THE CONSTITUTIONALITY OF THE SCHOOL BOARDS'
RULES. 

        I 

JO CAROL LAFLEUR AND ANN ELIZABETH NELSON, THE RESPONDENTS IN NO. 72
- 777, ARE JUNIOR HIGH SCHOOL TEACHERS EMPLOYED BY THE BOARD OF
EDUCATION OF CLEVELAND, OHIO.  PRUSUANT TO A RULE FIRST ADOPTED IN
1952, THE SCHOOL BOARD REQUIRES EVERY PREGNANT SCHOOL TEACHER TO TAKE
MATERNITY LEAVE WITHOUT PAY, BEGINNING FIVE MONTHS BEFORE THE EXPECTED
BIRTH OF HER CHILD.  APPLICATION FOR SUCH LEAVE MUST BE MADE NO LATER
THAN TWO WEEKS PRIOR TO THE DATE OF DEPARTURE.  A TEACHER ON MATERNITY
LEAVE IS NOT ALLOWED TO RETURN TO WORK UNTIL THE BEGINNING OF THE NEXT
REGULAR SCHOOL SEMESTER WHICH FOLLOWS THE DATE WHEN HER CHILD ATTAINS
THE AGE OF THREE MONTHS.  A DOCTOR'S CERTIFICATE ATTESTING TO THE
HEALTH OF THE TEACHER IS A PREREQUISITE TO RETURN; AN ADDITIONAL
PHYSICAL EXAMINATION MAY BE REQUIRED.  THE TEACHER ON MATERNITY LEAVE
IS NOT PROMISED RE-EMPLOYMENT AFTER THE BIRTH OF THE CHILD; SHE IS
MERELY GIVEN PRIORITY IN REASSIGNMENT TO A POSITION FOR WHICH SHE IS
QUALIFIED.  FAILURE TO COMPLY WITH THE MANDATROY MATERNITY LEAVE
PROVISIONS IS GROUND FOR DISMISSAL.  /1/ 

NEITHER MRS. LAFLEUR NOR MRS. NELSON WISHED TO TAKE AN UNPAID
MATERNITY LEAVE; EACH WANTED TO CONTINUE TEACHING UNTIL THE END OF THE
SCHOOL YEAR.  /2/  BECAUSE OF THE MANDATORY MATERNITY LEAVE RULE,
HOWEVER, EACH WAS REQUIRED TO LEAVE HER JOB IN MARCH 1971.  /3/  THE
TWO WOMEN THEN FILED SEPARATE SUITS IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO UNDER 42 U.S.C. 1983, CHALLENGING THE
CONSTITUTIONALITY OF THE MATERNITY LEAVE RULE.  THE DISTRICT COURT
TRIED THE CASES TOGETHER, AND REJECTED THE PLAINTIFFS' ARGUMENTS.  326
F.SUPP.  1208.  A DIVIDED PANEL OF THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT REVERSED, FINDING THE CLEVELAND RULE IN VIOLATION
OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  /4/  465
F.2D 1184. 

THE PETITIONER IN NO. 72 - 1129, SUSAN COHEN, WAS EMPLOYED BY THE
SCHOOL BOARD OF CHESTERFIELD COUNTY, VIRGINIA.  THAT SCHOOL BOARD'S
MATERNITY LEAVE REGULATION REQUIRES THAT A PREGNANT TEACHER LEAVE WORK
AT LEAST FOUR MONTHS PRIOR TO THE EXPECTED BIRTH OF HER CHILD.  NOTICE
IN WRITING MUST BE GIVEN TO THE SCHOOL BOARD AT LEAST SIX MONTHS PRIOR
TO THE EXPECTED BIRTH DATE.  A TEACHER ON MATERNITY LEAVE IS DECLARED
RE-ELIGIBLE FOR EMPLOYMENT WHEN SHE SUBMITS WRITTEN NOTICE FROM A
PHYSICIAN THAT SHE IS PHYSICALLY FIT FOR RE-EMPLOYMENT, AND WHEN SHE
CAN GIVE ASSURANCE THAT CARE OF THE CHILD WILL CAUSE ONLY MINIMAL
INTERFERENCE WITH HER JOB RESPONSIBILITIES.  THE TEACHER IS GUARANTEED
RE-EMPLOYMENT NO LATER THAN THE FIRST DAY OF THE SCHOOL YEAR FOLLOWING
THE DATE UPON WHICH SHE IS DECLARED RE-ELIGIBLE.  /5/ 

MRS. COHEN INFORMED THE CHESTERFIELD COUNTY SCHOOL BOARD IN NOVEMBER
1970, THAT SHE WAS PREGNANT AND EXPECTED THE BIRTH OF HER CHILD ABOUT
APRIL 28, 1971.  /6/ SHE INITIALLY REQUESTED THAT SHE BE PERMITTED TO
CONTINUE TEACHING UNTIL APRIL 1, 1971.  /7/  THE SCHOOL BOARD REJECTED
THE REQUEST, AS IT DID MRS. COHEN'S SUBSEQUENT SUGGESTION THAT SHE BE
ALLOWED TO TEACH UNTIL JANUARY 21, 1971, THE END OF THE FIRST SCHOOL
SEMESTER.  INSTEAD, SHE WAS REQUIRED TO LEAVE HER TEACHING JOB ON
DECEMBER 18, 1970.  SHE SUBSEQUENTLY FILED THIS SUIT UNDER 42 U.S.C.
1983 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA.  THE DISTRICT COURT HELD THAT THE SCHOOL BOARD REGULATION
VIOLATES THE EQUAL PROTECTION CLAUSE, AND GRANTED APPROPRIATE RELIEF. 
326 F.SUPP.  1159.  A DIVIDED PANEL OF THE FOURTH CIRCUIT AFFIRMED,
BUT, IN REHEARING EN BANC, THE COURT OF APPEALS UPHELD THE
CONSTITUTIONALITY OF THE CHALLENGED REGULATION IN A 4 - 3 DECISION. 
474 F.2D 395. 

WE GRANTED CERTIORARI IN BOTH CASES, 411 U.S. 947, IN ORDER TO
RESOLVE THE CONFLICT BETWEEN THE COURTS OF APPEALS REGARDING THE
CONSTITUTIONALITY OF SUCH MANDATORY MATERNITY LEAVE RULES FOR PUBLIC
SCHOOL TEACHERS.  /8/

        II 

THIS COURT HAS LONG RECOGNIZED THAT FREEDOM OF PERSONAL CHOICE IN
MATTERS OF MARRIAGE AND FAMILY LIFE IS ONE OF THE LIBERTIES PROTECTED
BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  ROE V. WADE,
410 U.S. 113; LOVING V. VIRGINIA, 388 U.S. 1, 12; GRISWOLD V.
CONNECTICUT, 381 U.S. 479; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510;
MEYER V. NEBRASKA, 262 U.S. 390.  SEE ALSO PRINCE V. MASSACHUSETTS, 321
U.S. 158; SKINNER V. OKLAHOMA, 316 U.S. 535.  AS WE NOTED IN EISENSTADT
V. BAIRD, 405 U.S. 438, 453, THERE IS A RIGHT "TO BE FREE FROM
UNWARRANTED GOVERNMENTAL INTRUSION INTO MATTERS SO FUNDAMENTALLY
AFFECTING A PERSON AS THE DECISION WHETHER TO BEAR OR BEGET A CHILD." 

BY ACTING TO PENALIZE THE PREGNANT TEACHER FOR DECIDING TO BEAR A
CHILD, OVERLY RESTRICTIVE MATERNITY LEAVE REGUALTIONS CAN CONSTITUTE A
HEAVY BURDEN ON THE EXERCISE OF THESE PROTECTED FREEDOMS.  BECAUSE
PUBLIC SCHOOL MATERNITY LEAVE RULES DIRECTLY AFFECT "ONE OF THE BASIC
CIVIL RIGHTS OF MAN," SKINNER V. OKLAHOMA, SUPRA, AT 541, THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES THAT SUCH RULES
MUST NOT NEEDLESSLY, ARBITRARILY, OR CAPRICIOUSLY IMPINGE UPON THIS
VITAL AREA OF A TEACHER'S CONSTITUTIONAL LIBERTY.  THE QUESTION BEFORE
US IN THESE CASES IS WHETHER THE INTERESTS ADVANCED IN SUPPORT OF THE
RULES OF THE CLEVELAND AND CHESTERFIELD COUNTY SCHOOL BOARDS CAN
JUSTIFY THE PARTICULAR PROCEDURES THEY HAVE ADOPTED. 

THE SCHOOL BOARDS IN THESE CASES HAVE OFFERED TWO ESSENTIALLY
OVERLAPPING EXPLANATIONS FOR THEIR MANDATORY MATERNITY LEAVE RULES. 
FIRST, THEY CONTEND THAT THE FIRM CUTOFF DATES ARE NECESSARY TO
MAINTAIN CONTINUITY OF CLASSROOM INSTRUCTION, SINCE ADVANCE KNOWLEDGE
OF WHEN A PREGNANT TEACHER MUST LEAVE FACILITATES THE FINDING AND
HIRING OF A QUALIFED SUBSTITUTE.  SECONDLY, THE SCHOOL BOARDS SEEK TO
JUSTIFY THEIR MATERNITY RULES BY ARGUING THAT AT LEAST SOME TEACHERS
BECOME PHYSICALLY INCAPABLE OF ADEQUATELY PERFORMING CERTAIN OF THEIR
DUTIES DURING THE LATTER PART OF PREGNANCY.  BY KEEPING THE PREGNANT
TEACHER OUT OF THE CLASSROOM DURING THESE FINAL MONTHS, THE MATERNITY
LEAVE RULES ARE SAID TO PROTECT THE HEALTH OF THE TEACHER AND HER
UNBORN CHILD, WHILE AT THE SAME TIME ASSURING THAT STUDENTS HAVE A
PHYSICALLY CAPABLE INSTRUCTOR IN THE CLASSROOM AT ALL TIMES.  /9/ 

IT CANNOT BE DENIED THAT CONTINUITY OF INSTRUCTION IS A SIGNIFICANT
AND LEGITIMATE EDUCATIONAL GOAL.  REGULATIONS REQUIRING PREGNANT
TEACHERS TO PROVIDE EARLY NOTICE OF THEIR CONDITION TO SCHOOL
AUTHORITIES UNDOUBTEDLY FACILITATE ADMINISTRATIVE PLANNING TOWARD THE
IMPORTANT OBJECTIVE OF CONTINUITY.  BUT, AS THE COURT OF APPEALS FOR
THE SECOND CURCUIT NOTED IN GREEN V. WATERFORD BOARD OF EDUCATION, 473
F.2D 629, 635: 

     "WHERE A PREGNANT TEACHER PROVIDES THE BOARD WITH A DATE

  CERTAIN FOR COMMENCEMENT OF LEAVE ... THAT VALUE (CONTINUITY) IS

  PRESERVED; AN ARBITRARY LEAVE DATE SET AT THE END OF THE FIFTH

  MONTH IS NO MORE CALCULATED TO FACILITATE A PLANNED AND ORDERLY

  TRANSITION BETWEEN THE TEACHER AND A SUBSTUTITE THAN IS A DATE

  FIXED CLOSER TO CONFINEMENT.  INDEED, THE LATTER ... WOULD AFFORD

  THE BOARD MORE, NOT LESS, TIME TO PROCURE A SATISFACTORY

  LONG-TERM SUBSTITUTE."  (FOOTNOTE OMITTED.) 

THUS, WHILE THE ADVANCE-NOTICE PROVISIONS IN THE CLEVELAND AND
CHESTERFIELD COUNTY RULES ARE WHOLLY RATIONAL AND MAY WELL BE NECESSARY
TO SERVE THE OBJECTIVE OF CONTINUITY OF INSTRUCTION, THE ABSOLUTE
REQUIREMENTS OF TERMINATION AT THE END OF THE FOURTH OR FIFTH MONTH OF
PREGNANCY ARE NOT.  WERE CONTINUITY THE ONLY GOAL, CUTOFF DATES MUCH
LATER DURING PREGNANCY WOULD SERVE AS WELL AS OR BETTER THAN THE
CHALLENGED RULES, PROVIDING THAT AMPLE ADVANCE NOTICE REQUIREMENTS WERE
RETAINED.  INDEED, CONTINUITY WOULD SEEM JUST AS WELL ATTAINED IF THE
TEACHER HERSELF WERE ALLOWED TO CHOOSE THE DATE UPON WHICH TO COMMENCE
HER LEAVE, AT LEAST SO LONG AS THE DECISION WERE REQUIRED TO BE MADE
AND NOTICE GIVEN OF IT WELL IN ADVANCE OF THE DATE SELECTED.  /10/ 

IN FACT, SINCE THE FIFTH OR SIXTH MONTH OF PREGNANCY WILL OBVIOUSLY
BEGIN AT DIFFERENT TIMES IN THE SCHOOL YEAR FOR DIFFERENT TEACHERS, THE
PRESENT CLEVELAND AND CHESTERFIELD COUNTY RULES MAY SERVE TO HINDER
ATTAINMENT OF THE VERY CONTINUITY OBJECTIVES THAT THEY ARE PURPORTEDLY
DESIGNED TO PROMOTE.  FOR EXAMPLE, THE BEGINNING OF THE FIFTH MONTH OF
PREGNANCY FOR BOTH MRS. LAFLEUR AND MRS. NELSON OCCURRED DURING MARCH
OF 1971.  BOTH WERE THUS REQUIRED TO LEAVE WORK WITH ONLY A FEW MONTHS
LEFT IN THE SCHOOL YEAR, EVEN THOUGH BOTH WERE FULLY WILLING TO SERVE
THROUGH THE END OF THE TERM.  /11/  SIMILARLY, IF CONTINUITY WERE THE
ONLY GOAL, IT SEEMS IRONIC THAT THE CHESTERFIELD COUNTY RULE FORCED
MRS. COHEN TO LEAVE WORK IN MID-DECEMBER 1970 RATHER THAN AT THE END OF
THE SEMESTER IN JANURAY, AS SHE REQUESTED. 

WE THUS CONCLUDE THAT THE ARBITRARY CUTOFF DATES EMBODIED IN THE
MANDATORY LEAVE RULES BEFORE US HAVE NO RATIONAL RELATIONSHIP TO THE
VALID STATE INTEREST OF PRESERVING CONINTUITY OF INSTRUCTION.  AS LONG
AS THE TEACHERS ARE REQUIRED TO GIVE SUBSTANTIAL ADVANCE NOTICE OF
THEIR CONDITION, THE CHOICE OF FIRM DATES LATER IN PREGNANCY WOULD
SERVE THE BOARDS'  OBJECTIVES JUST AS WELL, WHILE IMPOSING A FAR LESSER
BURDEN ON THE WOMEN'S EXERCISE OF CONSTITUTIONALLY PROTECTED FREEDOM. 

THE QUESTION REMAINS AS TO WHETHER THE CUTOFF DATES AT THE BEGINNING
OF THE FIFTH AND SIXTH MONTHS CAN BE JUSTIFIED ON THE OTHER GROUND
ADVANCED BY THE SCHOOL BOARDS--THE NECESSITY OF KEEPING PHYSICALLY
UNFIT TEACHERS OUT OF THE CLASSROOM.  THERE CAN BE NO DOUBT THAT SUCH
AN OBJECTIVE IS PERFECTLY LEGITIMATE, BOTH ON EDUCATIONAL AND SAFETY
GROUNDS.  AND, DESPITE THE PLETHORA OF CONFLICTING MEDICAL TESTIMONY IN
THESE CASES, WE CAN ASSUME, ARGUENDO, THAT AT LEAST SOME TEACHERS
BECOME PHYSICALLY DISABLED FROM EFFECTIVELY PERFORMING THEIR DUTIES
DURING THE LATTER STAGES OF PREGNANCY. 

THE MANDATORY TERMINATION PROVISIONS OF THE CLEVELAND AND
CHESTERFIELD COUNTY RULES SURELY OPERATE TO INSULATE THE CLASSROOM FROM
THE PRESENCE OF POTENTIALLY INCAPACITATED PREGNANT TEACERS.  BUT THE
QUESTION IS WHETHER THE RULES SWEEP TOO BROADLY.  SEE SHELTON V.
TUCKER, 364 U.S. 479.  THAT QUESTION MUST BE ANSWERED IN THE
AFFIRMATIVE, FOR THE PROVISIONS AMOUNT TO A CONCLUSIVE PRESUMPTION THAT
EVERY PREGNANT TEACHER WHO REACHES THE FIFTH OR SIXTH MONTH OF
PREGNANCY IS PHYSICALLY INCAPABLE OF CONTINUING.  THERE IS NO
INDIVIDUALIZED DETERMINATION BY THE TEACHER'S DOCTOR--OR THE SCHOOL
BOARDS--AS TO ANY PARTICULAR TEACHER'S ABILITY TO CONTINUE AT HER JOB. 
THE RULES CONTAIN AN IRREBUTTABLE PRESUMPTION OF PHYSICAL INCOMPETENCY,
AND THAT PRESUMPTION APPLIES EVEN WHEN THE MEDICAL EVIDENCE AS TO AN
INDIVIDUAL WOMAN'S PHYSICAL STATUS MIGHT BE WHOLLY TO THE CONTRARY. 

AS THE COURT NOTED LAST TERM IN VLANDIS V. KLINE, 412 U.S. 441, 446,
"PERMANENT IRREBUTTABLE PRESUMPTIONS HAVE LONG BEEN DISFAVORED UNDER
THE DUE PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS."  IN
VLANDIS, THE COURT DECLARED UNCONSTITUTIONAL, UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT, A CONNECTICUT STATUTE MANDATING AN
IRREBUTTABLE PRESEUMPTION OF NONRESIDENCY FOR THE PURPOSES OF
QUALIFYING FOR REDUCED TUITION RATES AT A STATE UNIVERSITY.  WE SAID IN
THAT CASE, ID., AT 452: 

     "(IT IS FORBIDDEN BY THE DUE PROCESS CLAUSE TO DENY AN

  INDIVIDUAL THE RESIDENT RATES ON THE BASIS OF A PERMANENT AND

IRREBUTTABLE PRESUMPTION OF NONRESIDENCE, WHEN THAT PRESUMPTION

  IS NOT NECESSARILY OR UNIVERSALLY TRUE IN FACT, AND WHEN THE

  STATE HAS REASONABLE ALTERNATIVE MEANS OF MAKING THE CRUCIAL

  DETERMINATION." 

SIMILARLY, IN STANLEY V. ILLINOIS, 405 U.S. 645, THE COURT HELD THAT
AN ILLINOIS STATUTE CONTAINING AN IRREBUTTABLE PRESUMPTION THAT
UNMARRIED FATHERS ARE INCOMPETENT TO RAISE THEIR CHILDREN VIOLATED THE
DUE PROCESS CLAUSE.  BECAUSE OF THE STATUTORY PRESUMPTION, THE STATE
TOOK CUSTODY OF ALL ILLEGITIMATE CHILDREN UPON THE DEATH OF THE MOTHER,
WITHOUT ALLOWING THE FATHER TO ATTEMPT TO PROVE HIS PARENTAL FITNESS. 
AS THE COURT PUT THE MATTER: 

     "IT MAY BE, AS THE STATE INSISTS, THAT MOST UNMARRIED FATHERS

ARE UNSUITABLE AND NEGLECTFUL PARENTS.  IT MAY ALSO BE THAT

 STANLEY IS SUCH A PARENT AND THAT HIS CHILDREN SHOULD BE PLACED

  IN OTHER HANDS.  BUT ALL UNMARRIED FATHERS ARE NOT IN THIS

  CATEGORY; SOME ARE WHOLLY SUITED TO HAVE CUSTODY OF THEIR

  CHILDREN."  ID., AT 654 (FOOTNOTES OMITTED). 

HENCE, WE HELD THAT THE STATE COULD NOT CONCLUSIVELY PRESUME THAT
ANY PARTICULAR UNMARRIED FATHER WAS UNFIT TO RAISE HIS CHILD; THE DUE
PROCESS CLAUSE REQUIRED A MORE INDIVIDUALIZED DETERMINATION.  SEE ALSO
UNITED STATES DEPT. OF AGRICULTURE V. MURRY, 413 U.S. 508; ID., AT 514
517 (CONCURRING OPINION); BELL V. BURSON, 402 U.S. 535; CARRINGTON V.
RASH, 380 U.S. 89.     THESE PRINCIPLES CONTROL OUR DECISION IN THE
CASES BEFORE US.  WHILE THE MEDICAL EXPERTS IN THESE CASES DIFFERED ON
MANY POINTS, THEY UNANIMOUSLY AGREED ON ONE--THE ABILITY OF ANY
PARTICULAR PREGNANT WOMAN TO CONTINUE AT WORK PAST ANY FIXED TIME IN
HER PREGNANCY IS VERY MUCH AN INDIVIDUAL MATTER.  /12/  EVEN ASSUMING,
ARGUENDO, THAT THERE ARE SOME WOMEN WHO WOULD BE PHYSICALLY UNABLE TO
WORK PAST THE PARTICULAR CUTOFF DATES EMBODIED IN THE CHALLENGED RULES,
IT IS EVEDENT THAT THERE ARE LARGE NUMBERS OF TEACHERS WHO ARE FULLY
CAPABLE OF CONTINUING WORK FOR LONGER THAN THE CLEVELEND AND
CHESTERFIELD COUNTY REGULATIONS WILL ALLOW.  THUS, THE CONCLUSIVE
PRESUMPTION EMBODIED IN THESE RULES, LIKE THAT IN VLANDIS, IS NEITHER
"NECESSARILY (NOR) UNIVERSALLY TRUE," AND IS VIOLATIVE OF THE DUE
PROCESS CLAUSE. 

THE SCHOOL BOARDS HAVE ARGUED THAT THE MANDATORY TERMINATION DATES
SERVE THE INTEREST OF ADMINISTRATIVE CONVENIENCE, SINCE THERE ARE MANY
INSTANCES OF TEACHER PREGNANCY, AND THE RULES OBVIATE THE NECESSITY FOR
CASE-BY-CASE DETERMINATIONS.  CERTAINLY, THE BOARDS HAVE AN INTEREST IN
DEVISING PROMPT AND EFFICIENT PROCEDURES TO ACHIEVE THEIR LEGITIMATE
OBJECTIVES IN THIS AREA.  BUT, AS THE COURT STATED IN STANLEY V.
ILLINOIS, SUPRA, AT 656: 

     "(THE CONSTITUTION RECOGNIZES HIGHER VALUES THAN SPEED AND

  EFFICIENCY.  INDEED, ONE MIGHT FAIRLY SAY OF THE BILL OF RIGHTS

  IN GENERAL, AND THE DUE PROCESS CLAUSE IN PARTICULAR, THAT THEY

  WERE DESIGNED TO PROTECT THE FRAGILE VALUES OF A VULNERABLE

  CITIZENRY FROM THE OVERBEARING CONCERN FOR EFFICIENCY AND

  EFFICACY THAT MAY CHARACTERIZE PRAISEWORTHY GOVERNMENT OFFICIALS

  NO LESS, AND PERHAPS MORE, THAN MEDIOCRE ONES."  (FOOTNOTE

  OMITTED.) 

WHILE IT MIGHT BE EASIER FOR THE SCHOOL BOARDS TO CONCLUSIVELY
PRESUME THAT ALL PREGNANT WOMEN ARE UNFIT TO TEACH PAST THE FOURTH OR
FIFTH MONTH OR EVEN THE FIRST MONTH, OF PREGNANCY, ADMINISTRATIVE
CONVENIENCE ALONE IS INSUFFICIENT TO MAKE VALID WHAT OTHERWISE IS A
VIOLATION OF DUE PROCESS OF LAW.  /13/  THE FOURTEENTH AMENDMENT
REQUIRES THE SCHOOL BOARDS TO EMPLOY ALTERNATIVE ADMINISTRATIVE MEANS,
WHICH DO NOT SO BROADLY INFRINGE UPON BASIC CONSTITUTIONAL LIBERTY, IN
SUPPORT OF THEIR LEGITIMATE GOALS.  /14/ 

WE CONCLUDE, THEREFORE, THAT NEITHER THE NECESSITY FOR CONTINUITY OF
INSTRUCTION NOR THE STATE INTEREST IN KEEPING PHYSICALLY UNFIT TEACHERS
OUT OF THE CLASSROOM CAN JUSTIFY THE SWEEPING MANDATORY LEAVE
REGULATIONS THAT THE CLEVELAND AND CHESTERFIELD COUNTY SCHOOL BOARDS
HAVE ADOPTED.  WHILE THE REGULATIONS NO DOUBT REPRESENT A GOOD-FAITH
ATTEMPT TO ACHIEVE A LAUDABLE GOAL, THEY CANNOT PASS MUSTER UNDER THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, BECAUSE THEY EMPLOY
IRREBUTTABLE PRESUMPTIONS THAT UNDULY PENALIZE A FEMALE TEACHER FOR
DECIDING TO BEAR A CHILD. 

        III 

IN ADDITION TO THE MANDATORY TERMINATION PROVISIONS, BOTH THE
CLEVELAND AND CHESTERFIELD COUNTY RULES CONTAIN LIMITATIONS UPON A
TEACHER'S ELIGIBILITY TO RETURN TO WORK AFTER GIVING BIRTH.  AGAIN, THE
SCHOOL BOARDS OFFER TWO JUSTIFICATIONS FOR THE RETURN RULES--CONTINUITY
OF INSTRUCTION AND THE DESIRE TO BE CERTAIN THAT THE TEACHER IS
PHYSICALLY COMPETENT WHEN SHE RETURNS TO WORK.  AS IS THE CASE WITH THE
LEAVE PROVISIONS, THE QUESTION IS NOT WHETHER THE SCHOOL BOARD'S GOALS
ARE LEGITIMATE, BUT RATHER THE PARTICULAR MEANS CHOSEN TO ACHIEVE THOSE
OBJECTIVES UNDULY INFRINGE UPON THE TEACHER'S CONSTITUTIONAL LIBERTY. 

UNDER THE CLEVELAND RULE, THE TEACHER IS NOT ELIGIBLE TO RETURN TO
WORK UNTIL THE BEGINNING OF THE NEXT REGULAR SCHOOL SEMESTER FOLLOWING
THE TIME WHEN HER CHILD ATTAINS THE AGE OF THREE MONTHS.  A DOCTOR'S
CERTIFICATE ATTESTING TO THE TEACHER'S HEALTH IS REQUIRED BEFORE
RETURN; AN ADDITIONAL PHYSICAL EXAMINATION MAY BE REQUIRED AT THE
OPTION OF THE SCHOOL BOARD. 

THE RESPONDENTS IN NO. 72 - 777 DO NOT SERIOUSLY CHALLENGE EITHER
THE MEDICAL REQUIREMENTS OF THE CLEVELAND RULE OR THE POLICY OF
LIMITING ELIGIBILITY TO RETURN TO THE NEXT SEMESTER FOLLOWING BIRTH. 
THE PROVISIONS CONCERNING A MEDICAL CERTIFICATE OR SUPPLEMENTAL
PHYSICAL EXAMINATION ARE NARROWLY DRAWN METHODS OF PROTECTING THE
SCHOOL BOARD'S INTEREST IN TEACHER FITNESS; THESE REQUIREMENTS ALLOW AN
INDIVIDUALIZED DECISION AS TO THE TEACHER'S CONDITION, AND THUS AVOID
THE PITFALLS OF THE PRESUMPTIONS INHERENT IN THE LEAVE RULES. 
SIMILARLY, THE PROVISION LIMITING ELIGIBILITY TO RETURN TO THE SEMESTER
FOLLOWING DELIVERY IS A PRECISELY DRAWN MEANS OF SERVING THE SCHOOL
BOARD'S INTEREST IN AVOIDING UNNECESSARY CHANGES IN CLASSROOM PERSONNEL
DURING ANY ONE SCHOOL TERM. 

THE CLEVELAND RULE, HOWEVER, DOES NOT SIMPLY CONTAIN THESE
REASONABLE MEDICAL AND NEXT-SEMESTER ELIGIBILITY PROVISIONS.  IN
ADDITION, THE SCHOOL BOARD REQUIRES THE MOTHER TO WAIT UNTIL HER CHILD
REACHES THE AGE OF THREE MONTHS BEFORE THE RETURN RULES BEGIN TO
OPERATE.  THE SCHOOL BOARD HAS OFFERED NO REASONABLE JUSTIFICATION FOR
THIS SUPPLEMENTAL LIMITATION, AND WE CAN PERCEIVE NONE.  TO THE EXTENT
THAT THE THREE-MONTH PROVISION REFLECTS THE SCHOOL BOARD'S THINKING
THAT NO MOTHER IS FIT TO RETURN UNTIL THAT POINT IN TIME, IT SUFFERS
FROM THE SAME CONSTITUTIONAL DEFICIENCIES THAT PLAGUE THE IRREBUTTABLE
PRESUMPTION IN THE TERMINATION RULES.  /15/  THE PRESUMPTION, MOREOVER,
IS PATENTLY UNNECESSARY, SINCE THE REQUIREMENT OF A PHYSICIAN'S
CERTIFICATE OR A MEDICAL EXAMINATION FULLY PRETECTS THE SCHOOL'S
INTERESTS IN THIS REGARD.  AND FINALLY, THE THREE-MONTH PROVISION
SIMPLY HAS NOTHING TO DO WITH CONTINUITY OF INSTRUCTION, SINCE THE
PRECISE POINT AT WHICH THE CHILD WILL REACH THE RELEVANT AGE WILL
OBVIOUSLY OCCUR AT A DIFFERENT POINT THROUGHOUT THE SCHOOL YEAR FOR
EACH TEACHER. 

THUS, WE CONCLUDE THAT THE CLEVELAND RETURN RULE, INSOFAR AS IT
EMBODIES THE THREE-MONTH AGE PROVISION, IS WHOLLY ARBITRARY AND
IRRATIONAL, AND HENCE VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE AGE LIMITATION SERVES NO LEGITIMATE STATE INTEREST, AND
UNNECESSARILY PENALIZES THE FEMALE TEACHER FOR ASSERTING HER RIGHT TO
BEAR CHILDREN. 

WE PRECEIVE NO SUCH CONSTITUTIONAL INFIRMITIES IN THE CHESTERFIELD
COUNTY RULE.  IN THAT SCHOOL SYSTEM, THE TEACHER BECOMES ELIGIBLE FOR
RE-EMPLOYMENT UPON SUBMISSION OF A MEDICAL CERTIFICATE FROM HER
PHYSICIAN; RETURN TO WORK IS GUARANTEED NO LATER THAN THE BEGINNING OF
THE NEXT SCHOOL YEAR FOLLOWING THE ELIGIBILITY DETERMINATION.  /16/
THE MEDICAL CERTIFICATE IS BOTH A REASONABLE AND NARROW METHOD OF
PROTECTING THE SCHOOL BOARD'S INTEREST IN TEACHER FITNESS, WHILE THE
POSSIBLE DEFERRING OF RETURN UNTIL THE NEXT SCHOOL YEAR SERVES THE GOAL
OF PRESERVING CONTINUITY OF INSTRUCTION.  IN SHORT, THE CHESTERFIELD
COUNTY RULE MANAGES TO SERVE THE LEGITIMATE STATE INTERESTS HERE
WITHOUT EMPLOYING UNNECESSARY PRESUMPTIONS THAT BROADLY BURDEN THE
EXERCISE OF PROTECTED CONSTITUTIONAL LIBERTY. 

        IV 

FOR THE REASONS STATED, WE HOLD THAT THE MANDATORY TERMINATION
PROVISIONS OF THE CLEVELAND AND CHESTERFIELD COUNTY MATERNITY
REGULATIONS VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
BECAUSE OF THEIR USE OF UNWARRANTED CONCLUSIVE PRESUMPTIONS THAT
SERIOUSLY BURDEN THE EXERCISE OF PROTECTED CONSTITUTIONAL LIBERTY.  FOR
SIMILAR REASONS, WE HOLD THE THREE-MONTH PROVISION OF THE CLEVELAND
RETURN RULE UNCONSTITUTIONAL. 

ACCORDINGLY, THE JUDGMENT IN NO. 72 - 777 IS AFFIRMED; THE JUDGMENT
IN NO. 72 - 1129 IS REVERSED, AND THE CASE IS REMANDED TO THE COURT OF
APPEALS FOR THE FOURTH CIRCUIT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE CLEVELAND RULE PROVIDES: 

"ANY MARRIED TEACHER WHO BECOMES PREGNANT AND WHO DESIRES TO RETURN
TO THE EMPLOY OF THE BOARD AT A FUTURE DATE MAY BE GRANTED A MATERNITY
LEAVE OF ABSENCE WITHOUT PAY. 

"APPLICATION A MATERNITY LEAVE OF ABSENCE SHALL BE EFFECTIVE NOT
LESS THAN FIVE (5) MONTHS BEFORE THE EXPECTED DATE OF THE NORMAL BIRTH
OF THE CHILD.  APPLICATION FOR SUCH LEAVE SHALL BE FORWARDED TO THE
SUPERINTENDENT AT LEAST TWO (2) WEEKS BEFORE THE EFFECTIVE DATE OF THE
LEAVE OF ABSENCE.  A LEAVE OF ABSENCE WITHOUT PAY SHALL BE GRANTED BY
THE SUPERINTENDENT FOR A PERIOD NOT TO EXCEED TWO (2) YEARS. 

"REASSIGNMENT A TEACHER MAY RETURN TO SERVICE FROM MATERNITY LEAVES
NOT EARLIER THAN THE BEGINNING OF THE REGULAR SCHOOL SEMESTER WHICH
FOLLOWS THE CHILD'S AGE OF THREE (3) MONTHS.  IN UNUSUAL CIRCUMSTANCES,
EXCEPTIONS TO THIS REQUIREMENT MAY BE MADE BY THE SUPERINTENDENT WITH
THE APPROVAL OF THE BOARD.  WRITTEN REQUEST FOR RETURN TO SERVICE FROM
MATERNITY LEAVE MUST REACH THE SUPERINTENDENT AT LEAST SIX (6) WEEKS
PRIOR TO THE BEGINNING OF THE SEMESTER WHEN THE TEACHER EXPECTS TO
RESUME TEACHING AND SHALL BE ACCOMPANIED BY A DOCTOR'S CERTIFICATE
STATING THE HEALTH AND PHYSICAL CONDITION OF THE TEACHER.  THE
SUPERINTENDENT MAY REQUIRE AN ADDITIONAL PHYSICAL EXAMINATION. 

"WHEN A TEACHER QUALIFIES TO RETURN FROM MATERNITY LEAVE, SHE SHALL
HAVE PRIORITY IN REASSIGNMENT TO A VACANCY FOR WHICH SHE IS QUALIFIED
UNDER HER CERTIFICATE, BUT SHE SHALL NOT HAVE PRIOR CLAIM TO THE EXACT
POSITION SHE HELD BEFORE THE LEAVE OF ABSENCE BECAME EFFECTIVE. 

"A TEACHER'S FAILURE TO FOLLOW THE ABOVE RULES FOR MATERNITY LEAVE
OF ABSENCE SHALL BE CONSTRUED AS TERMINATION OF CONTRACT OR AS GROUNDS
FOR DISMISSAL." 

/2/  MRS. LAFLEUR'S CHILD WAS BORN ON JULY 28, 1971; MRS. NELSON'S
CHILD WAS BORN DURING AUGUST OF THAT YEAR. 

/3/  EFFECTIVE FEBRUARY 1, 1971, THE CLEVELAND REGULATION WAS
AMENDED TO PROVIDE THAT ONLY TEACHERS WITH ONE YEAR OF CONTINUOUS
SERVICE QUALIFIED FOR MATERNITY LEAVE; TEACHERS WITH LESS THAN ONE YEAR
WERE REQUIRED TO RESIGN AT THE BEGINNING OF THE FIFTH MONTH OF
PREGNANCY.  SINCE MRS. NELSON HAD LESS THAN A YEAR OF SERVICE AT THE
TIME SHE NOTIFIED HER PRINCIPAL THAT SHE WAS PREGNANT, THE SCHOOL BOARD
ORIGINALLY REQUIRED HER TO RESIGN HER TEACHING POSITION.  THE SCHOOL
BOARD HAS SINCE CONCEDED THAT THE FEBRUARY 1 AMENDMENT DID NOT APPLY TO
MRS. NELSON, SINCE IT WAS ENACTED AFTER HER CONTRACT OF EMPLOYMENT WAS
EXECUTED.  PURSUANT TO THAT CONCESSION, THE BOARD HAS PLACED MRS.
NELSON, LIKE MRES.  LAFLEUR, ON MANDATORY LEAVE. 

/4/  CHIEF JUDGE PHILLIPS FILED A SEPARATE OPINION, DISSENTING IN
PART AND CONCURRING IN PART.  HE FELT THAT THE PORTION OF THE
CHALLEGNED REGULATION REQUIRING MATERMITY LEAVE AT THE BEGINNING OF THE
MAJORITY, HOWEVER, THAT THE THREE-MONTH POST-DELIVERY AWAITING PERIOD
BEFORE BECOMING ELIGIBLE TO RETURN TO TEACHING WAS UNCONSTITUTIONAL. 

/5/  THE CHESTERFIELD COUNTY RULE PROVIDES: 

"MATERNITY PROVISIONS 

"A.  NOTICE IN WRITING MUST BE GIVEN TO THE SCHOOL BOARD AT LEAST
SIX (6) MONTHS PRIOR TO THE DATE OF EXPECTED BIRTH. 

"B.  TERMINATION OF EMPLOYMENT OF AN EXPECTANT MOTHER SHALL BECOME
EFFECTIVE AT LEAST FOUR (4) MONTHS PRIOR TO THE EXPECTED BIRTH OF THE
CHILD.  TERMINATION OF EMPLOYMENT MAY BE EXTENDED IF THE SUPERINTENDENT
RECEIVES WRITTEN RECOMMENDATIONS FROM THE EXPECTANT MOTHER'S PHYSICIAN
AND HER PRINCIPAL, AND IF THE SUPERINTENDENT FEELS THAT AN EXTENSION
WILL BE IN THE BEST INTEREST OF THE PUPILS AND SCHOOL INVOLVED. 

"C.  MATERNITY LEAVE 

"(1) MATERNITY LEAVE MUST BE REQUESTED IN WRITING AT THE TIME
TERMINATION OF EMPLOYMENT. 

"(2) MATERMITY LEAVE WILL BE GRANTED ONLY TO THOSE PERSONS WHO HAVE
A RECORD OF SATISFACTORY PERFORMANCE. 

"(3) AN INDIVIDUAL WILL BE DECLARED ELIGIBLE FOR RE-EMPLOYMENT WHEN
SHE SUBMITS WRITTEN NOTICE FROM HER PHYSICIAN THAT SHE IS PHYSICALLY
FIT FOR FULL-TIME EMPLOYMENT AND WHEN SHE CAN GIVE FULL ASSURANCE THAT
CARE OF THE CHILD WILL CAUSE MINIMAL INTERFERENCE WITH JOB
RESPONSIBILITIES. 

"(4) RE-EMPLOYMENT WILL BE GUARANTEED NO LATER THAN THE FIRST DAY OF
THE SCHOOL YEAR FOLLOWING THE DATE THAT THE INDIVIDUAL WAS DECLARED
ELIGIBLE FOR RE-EMPLOYMENT. 

"(5) ALL PERSONNEL BENEFITS ACCRUED, INCLUDING SENIORITY, WILL BE
RETAINED DURING MATERNITY LEAVE UNLESS THE PERSON CONCERNED SHALL HAVE
ACCEPTED OTHER EMPLOYMENT. 

"(6) THE SCHOOL SYSTEM WILL HAVE DISCHARGED ITS RESPONSIBILITY UNDER
THIS POLICY AFTER OFFERING RE-EMPLOYMENT FOR THE FIRST VACANCY THAT
OCCURS AFTER THE INDIVIDUAL HAS BEEN DECLARED ELIGIBLE FOR RE
EMPLOYMENT." 

/6/  MRS. COHEN'S CHILD WAS IN FACT BORN ON MAY 2. 

/7/  UNLIKE THE CLEVELAND RULE, N. 1, SUPRA, THE CHESTERFIELD COUNTY
REGULATION ALLOWS THE SUPERINTENDENT OF SCHOOLS TO EXTEND A TEACHER'S
EMPLOYMENT BEYOND THE NORMAL CUTOFF DATE, IF HE DETERMINES THAT SUCH
ACTION IS IN THE BEST INTERESTS OF THE STUDENTS AND SCHOOL INVOLVED. 
SEE N. 5, SUPRA. 

/8/  APART FROM THE CASES HERE UNDER REVIEW, THERE ARE AT LEAST
THREE OTHER REPORTED FEDERAL APPELLATE OPINIONS DEALING WITH THE
CONSTITUTIONALITY OF MANDATORY MATERNITY LEAVE REGULATIONS.  COMPARE
GREEN V. WATERFORD BOARD OF EDUCATION, 473 F.2D 629 (CA2), AND BUCKLEY
V. COYLE PUBLIC SCHOOL SYSTEM, 476 F.2D 92 (CA10) (BOTH INVALIDATING
MANDATORY LEAVE RULES FOR PREGNANT PUBLIC SCHOOL TEACHERS) WITH
SCHATTMAN V. TEXAS EMPLOYMENT COMM'N, 459 F.2D 32 (CA5) (UPHOLDING A
LEAVE POLICY OF A STATE AGENCY). 

FOR OPINIONS OF THE DISTRICT COURTS DEALING WITH MANDATORY MATERNITY
LEAVES, SEE, E.G., HEATH V. WESTERVILLE BOARD OF EDUCATION, 345
F.SUPP.  501 (SD OHIO); POCKLINGTON V. DUVAL COUNTY SCHOOL BOARD, 345
F.SUPP.  163 (MD FLA.); BRAVO V. BOARD OF EDUCATION OF THE CITY OF
CHICAGO, 345 F.SUPP.  155 (ND ILL.); WILLIAMS V. SAN FRANCISCO UNIFIED
SCHOOL DISTRICT, 340 F.SUPP.  438 (ND CAL.); SEAMAN V. SPRING LAKE PARK
INDEPENDENT SCHOOL DISTRICT, 363 F.SUPP.  944 (MINN.); MONELL V.
DEPARTMENT OF SOCIAL SERVICES, 357 F.SUPP.  1051 (SDNY). 

CF. STRUCK V. SECRETARY OF DEFENSE, 460 F.2D 1372 (CA9), CERT.
GRANTED, 409 U.S. 947, VACATED AND REMANDED TO CONSIDER THE ISSUE OF
MOOTNESS, 409 U.S. 1071; GUIERREZ V. LAIRD, 346 F.SUPP.  289 (DC);
ROBINSON V. RAND, 340 F.SUPP.  37 (COLO.) (ALL DEALING WITH AIR FORCE
REGULATIONS REQUIRING SEPARATION OF PREGNANT PERSONNEL).     THE
PRACTICAL IMPACT OF OUR DECISION IN THE PRESENT CASES MAY HAVE BEEN
SOMEWHAT LESSENED BY SEVERAL RECENT DEVELOPMENTS.  AT THE TIME THAT THE
TEACHERS IN THESE CASES WERE PLACED ON MATERNITY LEAVE, TITLE VII OF
THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 253, 43 U.S.C. 2000E ET SEQ.,
DID NOT APPLY TO STATE AGENCIES AND EDUCATIONAL INSTITUTIONS.  42
U.S.C. 2000E (B) AND 2000E - 1.  ON MARCH 24, 1972, HOWEVER, THE EQUAL
EMPLOYMENT OPPORTUNITY ACT OF 1972 AMENDED TITLE VII TO WITHDRAW THOSE
EXEMPTIONS.  PUB. L. 92 - 261, 86 STAT. 103.  SHORTLY THEREAFTER, THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PROMULGATED GUIDELIN PROVIDING
THAT A MANDATORY LEAVE OR TERMINATION POLICY FOR PREGNANT WOMEN
PRESUMPTIVELY VIOLATES TITLE VII.  29 CFR 1604.10, 37 FED. REG. 6837. 
WHILE THE STATUTORY AMENDMENTS AND THE ADMINISTRATIVE REGULATIONS ARE,
OF COURSE, INAPPLICABLE TO THE CASES NOW BEFORE US, THEY WILL AFFECT
LIKE SUITS IN THE FUTURE. 

IN ADDITION, A NUMBER OF OTHER FEDERAL AGENCIES HAVE PROMULGATED
REGULATIONS SIMILAR TO THOSE OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, FORBIDDING DISCRIMINATION AGAINST PREGNANT WORKERS WITH
REGARD TO SICK LEAVE POLICIES.  SEE, E.G., 5 CFR 630.401(B) (CIVIL
SERVICE COMMISSION); 41 CFR 60 - 20.3 (G) (OFFICE OF FEDERAL CONTRACT
COMPLIANCE).  SEE GENERALLY KOONTZ, CHILDBIRTH AND CHILD REARING LEAVE:
JOB-RELATED BENEFITS, 17 N.Y.L.F. 480, 487 - 490; COMMENT, LOVE'S
LABORS LOST:  NEW CONCEPTIONS OF MATERNITY LEAVES, 7 HARV. CIV. RIGHTS
CIV.  LIB.  L. REV. 260, 280 - 281.  WE, OF COURSE, EXPRESS NO OPINION
AS TO THE VALIDITY OF ANY OF THESE REGULATIONS. 

/9/  THE RECORDS IN THESE CASES SUGGEST THAT THE MATERNITY LEAVE
REGULATIONS MAY HAVE ORIGINALLY BEEN INSPIRED BY OTHER, LESS WEIGHTY,
CONSIDERATIONS.  FOR EXAMPLE, DR. MARK C. SCHINNERER, WHO SERVED AS
SUPERINTENDENT OF SCHOOLS IN CLEVELAND AT THE TIME THE LEAVE RULE WAS
ADOPTED, TESTIFIED IN THE DISTRICT COURT THAT THE RULE HAD BEEN ADOPTED
IN PART TO SAVE PREGNANT TEACHERS FROM EMBARRASSMENT AT THE HANDS OF
GIGGLING SCHOOLCHILDREN; THE CUTOFF DATE AT THE END OF THE FOURTH MONTH
WAS CHOSEN BECAUSE THIS WAS WHEN THE TEACHER "BEGAN TO SHOW." 
SIMILARLY, AT LEAST SEVERAL MEMBERS OF THE CHESTERFIELD COUNTY SCHOOL
BOARD THOUGHT A MANDATORY LEAVE RULE WAS JUSTIFIED IN ORDER TO INSULATE
SCHOOLCHILDREN FROM THE SIGHT OF CONSPICUOUSLY PREGNANT WOMEN.  ONE
MEMBER OF THE SCHOOL BOARD THOUGHT THAT IT WAS "NOT GOOD FOR THE SCHOOL
SYSTEM" FOR STUDENTS TO VIEW PREGNANT TEACHERS, "BECAUSE SOME OF THE
KIDS SAY, MY TEACHER SWALLOWED A WATER MELON, THINGS LIKE THAT." 

THE SCHOOL BOARDS HAVE NOT CONTENDED IN THIS COURT THAT THESE
CONSIDERATIONS CAN SERVE AS A LEGITIMATE BASIS FOR A RULE REQUIRING
PREGNANT WOMEN TO LEAVE WORK; WE THUS NOTE THE COMMENTS ONLY TO
ILLUSTRATE THE POSSIBLE ROLE OF OUTMODED TABOOS IN THE ADOPTION OF THE
RULES.  CF. GREEN V. WATERFORD BOARD OF EDUCATION, 473 F.2D, AT 635
("WHATEVER MAY HAVE BEEN THE REACTION IN QUEEN VICTORIA'S TIME,
PREGNANCY IS NO LONGER A DIRTY WORD"). 

/10/  IT IS, OF COURSE, POSSIBLE THAT EITHER PREMATURE CHILDBIRTH OR
COMPLICATIONS IN THE LATER STAGES OF PREGNANCY MIGHT UPSET EVEN THE
MOST CAREFUL PLANS OF THE TEACHER, THE SUBSTITUTE, AND THE SCHOOL
BOARD.  BUT THERE IS NOTING IN THESE RECORDS TO INDICATE THAT SUCH
EMERGENCIES COULD NOT BE HANDLED, AS ARE ALL OTHERS, THROUGH THE NORMAL
USE OF THE EMERGENCY SUBSTITUTE TEACHER PROCESS.  SEE GREEN, SUPRA, AT
635 - 636. 

/11/  INDEED, IT IS SOMEWHAT DIFFICULT TO VIEW THE CLEVELAND
MANDATORY LEAVE RULE AS SERIOUSLY FURTHERING THE GOAL OF CONTINUITY,
SINCE THE RULES REQUIRE ONLY TWO WEEKS' ADVANCE NOTICE BEFORE THE LEAVE
IS TO COMMENCE. 

/12/  THERE WERE THREE MEDICAL WITNESSES IN THE CLEVELAND CASE:  DR.
SARAH MARCUS AND DR. VENERS RUTENBEIGS (MRS. NELSON'S OBSTETRICIAN),
WHO TESTIFIED ON BEHALF OF THE RESPONDENTS, AND DR, WILLIAM C. WEIR,
THE PETITIONERS' EXPERT.  WHILE DR. WEIR GENERALLY DISAGREED WITH HIS
COLLEAGUES ON THE POTENTIAL EFFECTS OF PREGNANCY ON A TEACHER'S JOB
PERFORMANCE, HE NOTED THAT EACH PREGNANCY WAS AN INDIVIDUAL MATTER, AND
SHOULD BE PRESCRIBED FOR AS SUCH.  SIMILARLY, THE TWO MEDICAL EXPERTS
IN THE CHESTERFIELD COUNTY CASE, DR. LEO J. DUNN AND DR. DAVID C.
FORREST, TESTIFIED THAT EACH PARTICULAR PREGNANCY MUST BE MANAGED AS AN
INDIVIDUAL MATTER.  CF. R. BENSON, HANDBOOK OF OBSTETRICS & GYNECOLOGY
109 (4TH ED. 1971); CURRAN, EQUAL PROTECTION OF THE LAW:  PREGNANT
SCHOOL TEACHERS, 285 NEW ENGLAND J. MEDICINE 336; COMMENT, MANDATORY
MATERNITY LEAVE OF ABSENCE POLICIES--AN EQUAL PROTECTION ANALYSIS, 45
TEMP.  L. Q. 240, 245. 

/13/  THIS IS NOT TO SAY THAT THE ONLY MEANS FOR PROVIDING
APPROPRIATE PROTECTION FOR THE RIGHTS OF PREGNANT TEACHERS IS AN
INDIVIDUALIZED DETERMINATION IN EACH CASE AND IN EVERY CIRCUMSTANCE. 
WE ARE NOT DEALING IN THESE CASES WITH MATERNITY LEAVE REGULATIONS
REQUIRING A TERMINATION OF EMPLOYMENT AT SOME FIRM DATE DURING THE LAST
FEW WEEKS OF PREGNANCY.  WE THEREFORE HAVE NO OCCASION TO DECIDE
WHETHER SUCH REGULATIONS MIGHT BE JUSTIFIED BY CONSIDERATIONS NOT
PRESENTED IN THESE RECORDS--FOR EXAMPLE, WIDESPREAD MEDICAL CONSENSUS
ABOUT THE "DISABLING" EFFECT OF PREGNANCY ON A TEACHER'S JOB
PERFORMANCE DURING THESE LATTER DAYS, OR EVIDENCE SHOWING THAT SUCH
FIRM CUTOFFS WERE THE ONLY REASONABLE METHOD OF AVOIDING THE
POSSIBILITY OF LABOR BEGINNING WHILE SOME TEACHER WAS IN THE CLASSROOM,
OR PROOF THAT ADEQUATE SUBSTITUTES COULD NOT BE PROCURED WITHOUT AT
LEAST SOME MINIMAL LEAD TIME AND CERTAINTY AS TO THE DATES UPON WHICH
THEIR EMPLOYMENT WAS TO BEGIN. 

/14/  THE SCHOOL BOARDS HAVE AVAILABLE TO THEM REASONABLE
ALTERNATIVE METHODS OF KEEPING PHYSICALLY UNFIT TEACHERS OUT OF THE
CLASSROOM.  FOR EXAMPLE, THEY COULD REQUIRE THE PREGNANT TEACHER TO
SUBMIT TO MEDICAL EXAMINATION BY A SCHOOL BOARD PHYSICIAN, OR SIMPLY
REQUIRE EACH TEACHER TO SUBMIT A CURRENT CERTIFICATION FROM HER
OBSTETRICIAN AS TO HER ABILITY TO CONTINUE WORK.  INDEED, WHEN
EVALUATING THE PHYSICAL ABILITY OF A TEACHER TO RETURN TO WORK, EACH
SCHOOL BOARD IN THIS CASE RELIES UPON PRECISELY SUCH PROCEDURES.  SEE
NN. 1 AND 5, SUPRA; SEE ALSO TEXT, INFRA, AT 648 - 650. 

/15/  IT IS CLEAR THAT THE FACTUAL HYPOTHESIS OF SUCH A PRESUMPTION-
THAT NO MOTHER IS PHYSICALLY FIT TO RETURN TO WORK UNTIL HER CHILD
REACHES THE AGE OF THREE MONTHS--IS NEITHER NECESSARILY NOR UNIVERSALLY
TRUE.  SEE R. BENSON, SUPRA, N. 12, AT 209 (PATIENT MAY RETURN TO "FULL
ACTIVITY OR EMPLOYMENT" IF COURSE OF PROGRESS UP TO FOURTH OR FIFTH
WEEK IS NORMAL).  CF. COMMENT, LOVE'S LABORS LOST:  NEW CONCEPTIONS OF
MATERNITY LEAVES, 7 HARV. CIV. RIGHTS-CIV.  LIB.  L. REV., AT 262 N.
11, 287 N. 145. 

OF COURSE, IT MAY BE THAT THE CLEVELAND RULE IS BASED UPON ANOTHER
THEORY--THAT NEW MOTHERS ARE TOO BUSY WITH THEIR CHILDREN WITHIN THE
FIRST THREE MONTHS TO ALLOW A RETURN TO WORK.  VIEWED IN THAT LIGHT,
THE RULE REMAINS A CONCLUSIVE PRESUMPTION, WHOSE UNDERLYING FACTUAL
ASSUMPTIONS CAN HARDLY BE SAID TO BE UNIVERSALLY VALID. 

/16/  THE VIRGINIA RULE ALSO REQUIRES THAT THE TEACHER GIVE
ASSURANCE THAT CARE OF THE CHILD WILL NOT UNDULY INTERFERE WITH HER JOB
DUTIES.  WHILE SUCH A REQUIREMENT HAS WITHIN IT THE POTENTIAL FOR
ABUSE, THERE IS NO EVIDENCE ON THIS RECORD THAT THE ASSURANCE REQUIRED
HERE IS ANYTHING MORE THAN THAT ROUTINELY SOUGHT BY EMPLOYERS FROM
PROSPECTIVE EMPLOYEES--THAT THE WORKER IS WILLING TO DEVOTE FULL
ATTENTION TO JOB DUTIES.  NOR IS THERE ANY EVIDENCE IN THIS RECORD THAT
THE SCHOOL AUTHORITIES DO NOT ROUTINELY ACCEPT THE WOMAN'S ASSURANCE OF
HER ABILITY TO RETURN. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE POWELL, CONCURRING IN THE RESULT. 

I CONCUR IN THE COURT'S RESULT, BUT I AM UNABLE TO JOIN ITS
OPINION.  IN MY VIEW THESE CASES SHOULD NOT BE DECIDED ON THE GROUND
THAT THE MANDATORY MATERNITY LEAVE REGULATIONS IMPAIR ANY RIGHT TO BEAR
CHILDREN OR CREATE AN "IRREBUTTABLE PRESUMPTION."  IT SEEMS TO ME THAT
EQUAL PROTECTION ANALYSIS IS THE APPROPRIATE FRAME OF REFERENCE. 

THESE REGULATIONS UNDOUBTEDLY ADD TO THE BURDENS OF CHILDBEARING. 
BUT CERTAINLY NOT EVERY GOVERNMENT POLICY THAT BURDENS CHILDBEARING
VIOLATES THE CONSTITUTION.  LIMITATIONS ON THE WELFARE BENEFITS A
FAMILY MAY RECEIVE THAT DO NOT TAKE INTO ACCOUNT THE SIZE OF THE FAMILY
ILLUSTRATE THIS POINT.  SEE DANDRIDGE V. WILLIAMS, 397 U.S. 471
(1970).  UNDOUBTEDLY CONGRESS COULD, AS ANOTHER EXAMPLE,
CONSTITUTIONALLY SEEK TO DISCOURAGE EXCESSIVE POPULATION GROWTH BY
LIMITING TAX DEDUCTIONS FOR DEPENDENTS.  THAT WOULD REPRESENT AN
INTENTIONAL GOVERNMENTAL EFFORT TO "PENALIZE"  CHILDBEARING.  SEE ANTE,
AT 640.  THE REGULATIONS HERE DO NOT HAVE THAT PURPOSE.  THEIR
DETERRENT IMPACT IS WHOLLY INCIDENTAL.  IF SOME INTENTIONAL EFFORTS TO
PENALIZE CHILDBEARING ARE CONSTITUTIONAL, AND IF DANDRIDGE, SUPRA,
MEANS WHAT I THINK IT DOES, THEN CERTAINLY THESE REGULATIONS ARE NOT
INVALID AS AN INFRINGEMENT OF ANY RIGHT TO PROCREATE. 

I AM ALSO TROUBLED BY THE COURT'S RETURN TO THE "IRREBUTTABLE
PRESUMPTION"  LINE OF ANALYSIS OF STANLEY V. ILLINOIS, 405 U.S. 645
(1972) (POWELL, J., NOT PARTICIPATING), AND VLANDIS V. KLINE, 412 U.S.
441 (1973).  ALTHOUGH I JOINED THE OPINION OF THE COURT IN VLANDIS ANC
CONTINUE FULLY TO SUPPORT THE RESULT REACHED THERE, THE PRESENT CASES
HAVE CAUSED ME TO RE-EXAMINE THE "IRREBUTTABLE PRESUMPTION" RATIONALE. 
THIS HAS LED ME TO THE CONCLUSION THAT THE COURT SHOULD APPROACH THAT
DOCTRINE WITH EXTREME CARE.  THERE IS MUCH TO WHAT MR. JUSTICE
REHNQUIST SAYS IN HIS DISSENTING OPINION, POST, AT 660, ABOUT THE
IMPLICATIONS OF THE DOCTRINE FOR THE TRADITIONAL LEGISLATIVE POWER TO
OPERATE BY CLASSIFICATION.  AS A MATTER OF LOGIC, IT IS DIFFICULT TO
SEE THE TERMINUS OF THE ROAD UPON WHICH THE COURT HAS EMBARKED UNDER
THE BANNER OF "IRREBUTTABLE PRESUMPTIONS."  IF THE COURT NEVERTHELESS
USES "IRREBUTTABLE PRESUMPTION" REASONING SELECTIVELY, THE CONCEPT AT
ROOT OFTEN WILL BE SOMETHING ELSE MASQUERADING AS A DUE PROCESS
DOCTRINE.  THAT SOMETHING ELSE, OF COURSE, IS THE EQUAL PROTECTION
CLAUSE. 

THESE CASES PRESENT PRECISELY THE KIND OF PROBLEM SUSCEPTIBLE TO
TREATMENT BY CLASSIFICATION.  MOST SCHOOL TEACHERS ARE WOMEN, A CERTAIN
PERCENTAGE OF THEM ARE PREGNANT AT ANY GIVEN TIME, AND PREGNANCY IS A
NORMAL BIOLOGICAL FUNCTION POSSESSING, IN THE GREAT MAJORITY OF CASES,
A FAIRLY WELL DEFINED TERM.  THE CONSTITUTIONAL DIFFICULTY IS NOT THAT
THE BOARDS ATTEMPTED TO DEAL WITH THIS PROBLEM BY CLASSIFICATION. 
RATHER, IT IS THAT THE BOARDS CHOSE IRRATIONAL CLASSIFICATIONS. 

A RANGE OF POSSIBLE SCHOOL BOARD GOALS EMERGE FROM THE CASES. 
SEVERAL MAY BE PUT TO ONE SIDE.  THE RECORDS BEFORE US ABOUND WITH
PROOF THAT A PRINCIPAL PURPPSE BEHIND THE ADOPTION OF THE REGULATIONS
WAS TO KEEP VISIBLY PREGNANT TEACHERS OUT OF THE SIGHT OF SCHOOL
CHILDREN.  /1/  THE BOARDS DO NOT ADVANCE THIS TODAY AS A LEGITIMATE
OBJECTIVE, YET ITS INITIAL PRIMACY CASTS A SHADOW OVER THESE CASES. 
MOREOVER, MOST OF THE AFTER-THE-FACT RATIONALIZATIONS PROPOSED BY THESE
BOARDS ARE UNSUPPORTED IN THE RECORDS.  THE BOARDS EMPHASIZE TEACHER
ABSENTEEISM, CLASSROOM DISCIPLINE, THE SAFETY OF SCHOOLCHILDREN, AND
THE SAFETY OF THE EXPECTANT MOTHER AND HER UNBORN CHILD.  NO DOUBT
THESE ARE LEGITIMATE CONCERNS.  BUT THE BOARDS HAVE FAILED TO
DEMONSTRATE THAT THESE INTERESTS ARE IN FACT THREATENED BY THE
CONTINUED EMPLOYMENT OF PREGNANT TEACHERS. 

TO BE SURE, THE BOARDS HAVE A LEGITIMATE AND IMPORTANT INTEREST IN
FOSTERING CONTINUITY OF TEACHING.  AND, EVEN A NORMAL PREGNANCY MAY AT
SOME POINT JEOPARDIZE THAT INTEREST.  BUT THE CLASSIFICATIONS CHOSEN BY
THESE BOARDS, SO FAR AS WE HAVE BEEN SHOWN, ARE EITHER
COUNTERPRODUCTIVE OR IRRATIONALLY OVERINCLUSIVE EVEN WITH REGARD TO
THIS SIGNIFICANT, NONILLUSORY GOAL.  ACCORDINGLY, IN MY OPINION THESE
REGULATIONS ARE INVALID UNDER REATIONAL-BASIS STANDARDS OF EQUAL
PROTECTION REVIEW.  /2/ 

IN SPEAKING OF CONTINUITY OF TEACHING, THE BOARDS ARE REFERRING IN
PART TO THEIR VALID INTEREST IN REDUCING THE NUMBER OF TIMES A NEW
TEACHER IS ASSIGNED TO A GIVEN CLASS.  IT IS PARTICULARLY APPROPRIATE
TO AVOID TEACHER TURNOVER IN THE MIDDLE OF A SEMESTER, SINCE CONTINUITY
IN TEACHING APPROACH, AS WELL AS TEACHER-PUPIL RELATIONSHIPS, IS
OTHERWISE IMPAIRED.  THAT ASPECT OF THE CLEVELAND REGULATION LIMITING A
TEACHER'S ELIGIBILITY TO RETURN TO THE CLASSROOM TO THE SEMESTER
FOLLOWING DELIVERY, WHICH THE COURT APPROVES, ANTE, AT 649, RATIONALLY
SERVES THIS LEGITIMATE STATE INTEREST.  BUT THE FOUR- AND FIVE-MONTH
PREBIRTH LEAVE PERIODS OF THE TWO REGULATIONS AND THE THREE-MONTH POST
BIRTH PROVISION OF THE CLEVELAND REGULATION DO NOT.  AS THE COURT
POINTS ANTE, AT 642 - 643, SUCH CUTOFF POINTS ARE MORE LIKELY TO
PREVENT CONTINUITY OF TEACHING THAN TO PRESERVE IT.  BECAUSE THE CUTOFF
DATES OCCUR THROUGHOUT THE SCHOOL YEAR, THEY INEVITABLY RESULT IN THE
REMOVAL OF MANY CAPABLE TEACHERS FROM THE CLASSROOM IN THE MIDDLE OR
NEAR THE END OF A SEMESTER, THUS PROVOKING THE DISRUPTION THE BOARDS
HOPE TO AVOID. 

THE BOARDS' REFERENCE TO CONTINUITY OF TEACHING ALSO ENCOMPASSES
THEIR NEED TO ASSURE CONSTANT CLASSROOM COVERAGE BY TEACHERS WHO ARE UP
TO THE TASK.  THIS INTEREST IS OBVIOUSLY LEGITIMATE.  NO ONE DISPUTES
THAT A SCHOOL BOARD MUST CONCERN ITSELF WITH THE PHYSICAL AND EMOTIONAL
CAPABILITIES OF ITS TEACHERS.  BUT THE OBJECTIONABLE PORTIONS OF THESE
REGULATIONS APPEAR TO BE BOTTOMED ON FACTUALLY UNSUPPORTED ASSUMPTIONS
ABOUT THE ABILITY OF PREGNANT TEACHERS TO PERFORM THEIR JOBS.  THE
OVERWHELMING WEIGHT OF THE MEDICAL TESTIMONY ADDUCED IN THESE CASES IS
THAT MOST TEACHERS UNDERGOING NORMAL PREGNANCIES ARE QUITE CAPABLE OF
CARRYING OUT THEIR RESPONSIBILITIES UNTIL SOME ILL-DEFINED POINT S
AHORT PERIOD PRIOR TO TERM.  CERTAINLY THE BOARDS HAVE MADE LITTLE
EFFORT TO CONTRADICT THIS CONCLUSION.  THUS, IT APPEARS THAT BY FORCING
ALL PREGNANT TEACHERS UNDERGOING A NORMAL PREGNANCY FROM THE CLASSROOM
SO FAR IN ADVANCE OF TERM, THE REGULATIONS COMPEL LARGE NUMBERS OF ABLE
BODIED TEACHERS TO QUIT WORK.  /3/  ONCE MORE, SUCH POLICIES INHIBIT,
RATHER THAN FURTHER, THE GOAL OF CONTINUITY OF TEACHING.  FOR NO
APPARENT REASON, THEY REVOME TEACHERS FROM THEIR STUDENTS AND REQUIRE
THE USE OF SUBSTITUTES.     THE BOARDS' RELIANCE ON THE GOAL OF
CONTINUITY OF TEACHING ALSO TAKES INTO ACCOUNT THEIR OBVIOUS PLANNING
NEEDS.  BOARDS MUST KNOW WHEN PREGNANT TEACHERS WILL TEMPORARILY CEASE
THEIR TEACHING RESPONSIBILITIES, SO THAT SUBSTITUTES MAY BE SCHEDULED
TO FILL THE VACANCIES.  AND, PLANNING REQUIRES BOTH NOTICE OF PREGNANCY
AND A FIXED TERMINATION DATE.  IT APPEARS, HOWEVER, THAT ANY
TERMINATION DATE SERVES THE PURPOSE.  /4/  THE CHOICE OF A CUTOFF DATE
THAT PRODUCES SEVERAL MONTHS OF FORCED UNEMPLOYMENT IS THUS WHOLLY
UNNECESSARY TO THE PLANNING OF THE BOARDS.  CERTAINLY NOTHING IN THE
RECORDS OF THESE CASES IS TO THE CONTRARY. 

FOR THE ABOVE REASONS, I BELIEVE THE LINKAGE BETWEEN THE BOARDS'
LEGITITMATE ENDS AND THEIR CHOSEN MEANS IS TOO ATTENUATED TO SUPPORT
THOSE PORTIONS OF THE REGULATIONS OVERTURNED BY THE COURT.  THUS, I
CONCUR IN THE COURT'S RESULT.  BUT I THINK IT IMPORTANT TO EMPHASIZE
THE DEGREE OF LATITUDE THE COURT, AS I READ IT, HAS LEFT THE BOARDS FOR
DEALING WITH THE REAL AND RECURRENT PROBLEMS PRESENTED BY TEACHER
PREGNANCIES.  BOARDS MAY DEMAND IN EVERY CASE "SUBSTANTIAL ADVANCE
NOTICE OF (PREGNANCY)...."  ANTE, AT 643.  SUBJECT TO CERTAIN
RESTRICTIONS, THEY MAY REQUIRE ALL PREGNANT TEACHERS TO CEASE TEACHING
"AT SOME FIRM DATE DURING THE LAST FEW WEEKS OF PREGNANCY...."  ID., AT
647 N. 13.  /5/  THE COURT FURTHER HOLDS THAT BOARDS MAY IN ALL CASES
RESTRICT RE-ENTRY INTO TEACHING TO THE OUTSET OF THE SCHOOL TERM
FOLLOWING DELIVERY.  ID., AT 649. 

IN MY OPINION, SUCH CLASS-WIDE RULES FOR PREGNANT TEACHERS ARE
CONSTITUTIONAL UNDER TRADITIONAL EQUAL PROTECTION STANDARDS.  /6/
SCHOOL BOARDS, CONFRONTED WITH SENSITIVE AND WIDELY VARIABLE PROBLEMS
OF PUBLIC EDUCATION, MUST BE ACCORDED LATITUDE IN THE OPERATION OF
SCHOOL SYSTEMS AND IN THE ADOPTION OF RULES AND REGULATIONS OF GENERAL
APPLICATION.  E.G., SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V.
RODRIGUEZ, 411 U.S. 1, 42 - 43 (1973).  A LARGE MEASURE OF DISCRETION
IS ESSENTIAL TO THE EFFECTIVE DISCHARGE OF THE DUTIES VESTED IN THESE
LOCAL, OFTEN ELECTIVE, GOVERNMENTAL UNITS.  MY CONCERN WITH THE COURT'S
OPINION IS THAT, IF CARRIED TO LOGICAL EXTREMES, THE EMPHASIS ON
INDIVIDUALIZED TREATMENT IS AT WAR WITH THIS NEED FOR DISCRETION. 
INDEED, STRINGENT INSISTENCE ON INDIVIDUALIZED TREATMENT MAY BE QUITE
IMPRACTICAL IN A LARGE SCHOOL DISTRICT WITH THOUSANDS OF TEACHERS. 

BUT DESPITE MY RESERVATIONS AS TO THE RATIONALE OF THE MAJORITY, I
NEVERTHELESS CONCLUDE THAT IN THESE CASES THE GAP BETWEEN THE
LEGITIMATE INTERESTS OF THE BOARDS AND THE PARTICULAR MEANS CHOSEN TO
ATTAIN THEM IS TOO WIDE.  A RESTRUCTURING GENERALLY ALONG THE LINES
INDICATED IN THE COURT'S OPINION SEEMS UNAVOIDABLE.  ACCORDINGLY, I
CONCUR IN ITS RESULT. 

/1/  SEE, E.G., ANTE, AT 641 N. 9. 

/2/  I DO NOT REACH THE QUESTION WHETHER SEX-BASED CLASSIFICATIONS
INVOKE STRICT JUDICIAL SCRUTINY, E.G., FRONTIERO V. RICHARDSON, 411
U.S. 677 (1973), OR WHETHER THESE REGULATIONS INVOLVE SEX
CLASSIFICATIONS AT ALL.  WHETHER THE CHALLENGED ASPECTS OF THE
REGULATIONS CONSTITUTE SEX CLASSIFICATIONS OR DISABILITY
CLASSIFICATIONS, THEY MUST AT LEAST RATIONALLY SERVE SOME LEGITIMATE
ARTICULATED OR OBVIOUS STATE INTEREST.  WHILE THERE ARE INDEED SOME
LEGITIMATE STATE INTERESTS AT STAKE HERE, IT HAS NOT BEEN SHOWN THAT
THEY ARE RATIONALLY FURTHERED BY THE CHALLENGED PORTIONS OF THESE
REGULATIONS. 

/3/  TEACHERS WHO UNDERGO ABNORMAL PREGNANCIES MAY WELL BE DISABLED,
EITHER TEMPORARILY OR FOR A SUBSTANTIAL PERIOD.  BUT AS I READ THE
COURT, BOARDS MAY DEAL WITH ABNORMAL PREGNANCIES LIKE ANY OTHER
DISABILITY.  ANTE, AT 642 N. 10. 

/4/  ONE MAY QUESTION, HOWEVER, WHETHER PLANNING NEEDS ARE WELL
SERVED BY THE MERE TWO-WEEK GAP BETWEEN NOTICE AND DEPARTURE SET FORTH
IN THE CLEVELAND REGULATION.  THE BRIEF NOTICE THE CLEVELAND BOARD HAS
ALLOWED ITSELF CASTS SOME DOUBT ON THE BOARD'S RELIANCE ON PLANNING
NEEDS. 

/5/  THE COURT'S LANGUAGE DOES NOT SPECIFY A PARTICULAR PREBIRTH
CUTOFF POINT, AND WE NEED NOT DECIDE THAT ISSUE, AS THESE BOARDS HAVE
ATTEMPTED TO SUPPORT ONLY FOUR- AND FIVE-MONTH DATES.  IN LIGHT OF THE
COURT'S LANGUAGE, HOWEVER, I WOULD THINK THAT A FOUR-WEEK PREBIRTH
PERIOD WOULD BE ACCEPTABLE.  I DO NOT AGREE WITH THE COURT'S VIEW OF
THE STRINGENT STANDARDS A BOARD MUST MEET TO JUSTIFY A REASONABLE
PREBIRTH CUTOFF DATE.  SEE ANTE, AT 647 N. 13.  NOTHING IN THE
CONSTITUTION MANDATES THE HEAVY BURDEN OF JUSTIFICATION THE COURT HAS
IMPOSED ON THE BOARDS IN THIS REGARD.  IF SCHOOL BOARDS MUST BASE THEIR
POLICIES ON A "WIDESPREAD MEDICAL CONSENSUS...,"  THE "ONLY REASONABLE
METHOD...," FOR ACCOMPLISHING A GOAL, OR A DEMONSTRATION THAT NEEDED
SERVICES WILL OTHERWISE BE IMPOSSIBLE TO OBTAIN, IBID., THEY MAY BE
SERIOUSLY HANDICAPPED IN THE PERFORMANCE OF THEIR DUTIES. 

/6/  AS THE COURT NOTES, THESE CASES AROSE PRIOR TO THE RECENT
AMENDMENT EXTENDING TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42
U.S.C. 2000E ET SEQ., TO STATE AGENCIES AND EDUCATIONAL INSTITUTIONS. 
PUB. L. 92 - 261, 86 STAT. 103.  SEE ANTE, AT 639 N. 8.  LIKE THE
COURT, I DO NOT ADDRESS THE IMPACT OF TITLE VII ON MANDATORY MATERNITY
LEAVE REGULATIONS. 

MR. JUSTICE REHNQUIST, WHITH WHOM THE CHIEF JUSTICE JOINS,
DISSENTING. 

THE COURT RESTS ITS INVALIDATION OF THE SCHOOL REGULATIONS INVOLVED
IN THESE CASES ON THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
RATHER THAN ON ANY CLAIM OF SEXUAL DISCRININATION UNDER THE EQUAL
PROTECTION CLAUSE OF THAT AMENDMENT.  MY BROTHER STEWART THEREBY
ENLISTS THE COURT IN ANOTHER QUIXOTIC ENGAGEMENT IN HIS APPARENTLY
UNENDING WAR ON IRREBUTTABLE PRESUMPTIONS.  IN THESE CASES WE ARE TOLD
THAT ALTHOUGH A REGULATION "REQUIRING A TERMINATION OF EMPLOYMENT AT
SOME FIRM DATE DURING THE LAST FEW WEEKS OF PREGNANCY" (N. 13, OPINION
OF THE COURT), MIGHT PASS MUSTER, THE REGULATIONS HERE CHALLENGED
REQUIRING TERMINATION AT THE END OF THE FOURTH OR FIFTH MONTH OF
PREGNANCY VIOLATE DUE PROCESS OF LAW. 

AS THE CHIEF JUSTICE POINTED OUT IN HIS DISSENT LAST YEAR IN VLANDIS
V. KLINE, 412 U.S. 441, "LITERALLY THOUSANDS OF STATE STATUTES CREATE
CLASSIFICATIONS PERMANENT IN DURATION, WHICH ARE LESS THAN PERFECT, AS
ALL LEGISLATIVE CLASSIFICATIONS ARE, AND MIGHT BE IMPROVED ON BY
INDIVIDUALIZED DETERMINATIONS...."  ID., AT 462.  HUNDREDS OF YEARS AGO
IN ENGLAND, BEFORE PARLIAMENT CAME TO BE THOUGHT OF AS A BODY HAVING
GENERAL LAWMAKING POWER, CONTROVERSIES WERE DETERMINED ON AN
INDIVIDUALIZED BASIS WITHOUT BENEFIT OF ANY GENERAL LAW.  MOST STUDENTS
OF GOVERNMENT CONSIDER THE SHIFT FROM THIS SORT OF DETERMINATION, MADE
ON AN AD HOC BASIS BY THE KING'S REPRESENTATIVE, TO A RELATIVELY
UNIFORM BODY OF RULES ENACTED BY A BODY EXERCISING LEGISLATIVE
AUTHORITY, TO HAVE BEEN A SIGNIFICANT STEP FORWARD IN THE ACHIEVEMENT
OF A CIVILIZED POLITICAL SOCIETY.  IT SEEMS TO ME A LITTLE LATE IN THE
DAY FOR THIS COURT TO WEIGH IN AGAINST SUCH AN ESTABLISHED CONSENSUS. 

COUNTLESS STATE AND FEDERAL STATUTES DRAW LINES SUCH AS THOSE DRAWN
BY THE REGULATIONS HERE WHICH, UNDER THE COURTS' ANALYSIS, MIGHT WELL
PROVE TO BE ARBITRARY IN INDIVIDUAL CASES.  THE DISTRICT OF COLUMBIA
CODE, FOR EXAMPLE, DRAWS LINES WITH RESPECT TO AGE FOR SEVERAL
PURPOSES.  THE CODE REQUIRES THAT A PERSON TO BE ELIGIBLE TO VOTE BE 18
YEARS OF AGE, /1/  THAT A MALE BE 18 AND A FEMALE BE 16 BEFORE A VALID
MARRIAGE MAY BE CONTRACTED, /2/  THAT ALCOHOLIC BEVERAGES NOT BE SOLD
TO A PERSON UNDER AGE 21 YEARS, /3/  OR BEER OR LIGHT WINES TO ANY
PERSON UNDER THE AGE OF 18 YEARS.  /4/  A RESIDENT OF THE DISTRICT OF
COLUMBIA MUST BE 16 YEARS OF AGE TO OBTAIN A PERMIT TO OPERATE A MOTOR
VEHICLE, /5/  AND THE DISTRICT OF COLUMBIA DELEGATE TO THE UNITED
STATES CONGRESS MUST BE 25 YEARS OLD.  /6/  NOTHING IN THE COURT'S
OPINION CLEARLY DEMONSTRATES WHY ITS LOGIC WOULD NOT EQUALLY WELL
SUSTAIN A CHALLENGE TO THESE LAWS FROM A 17 -YEAR-OLD WHO INSISTS THAT
HE IS JUST AS WELL INFORMED FOR VOTING PURPOSES AS AN 18 - YEAR OLD,
FROM A 20 - YEAR OLD WHO INSISTS THAT HE IS JUST AS ABLE TO CARRY HIS
LIQUOR AS A 21 - YEAR OLD, OR FROM THE NUMEROUS OTHER PERSONS WHO FALL
ON THE OUTSIDE OF LINES DRAWN BY THESE AND SIMILAR STATUTES. 

MORE CLOSELY IN POINT IS THE JEOPARDY IN WHICH THE COURT'S OPINION
PLACES LONGSTANDING STATUTES PROVIDING FOR MANDATORY RETIREMENT OF
GOVERNMENT EMPLOYEES.  5 U.S.C. 8335 PROVIDES WITH RESPECT TO CIVIL
SERVICE EMPLOYEES: 

   "(A) EXCEPT AS OTHERWISE PROVIDED BY THIS SECTION, AN EMPLOYEE

  WHO BECOMES 70 YEARS OF AGE AND COMPLETES 15 YEARS OF SERVICE

  SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE...." 

IT WAS POINTED OUT BY MY BROTHER STEWART ONLY LAST YEAR IN HIS
CONCURRING OPINION IN ROE V. WADE, 410 U.S. 113, 168, THAT "THE
'LIBERTY'  PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT COVERS MORE THAN THOSE FREEDOMS EXPLICITLY NAMED IN THE BILL
OF RIGHTS....  CF....  TRUAX V. RAICH, 239 U.S. 33, 41."  IN TRUAX V.
RAICH, THE COURT SAID: 

  "IT REQUIRES NO ARGUMENT TO SHOW THAT THE RIGHT TO WORK FOR A

  LIVING IN THE COMMON OCCUPATIONS OF THE COMMUNITY IS OF THE VERY

  ESSENCE OF THE PERSONAL FREEDOM AND OPPORTUNITY THAT IT WAS THE

  PURPOSE OF THE AMENDMENT TO SECURE."  239 U.S. 33, 41 (1915). 

SINCE THIS RITHT TO PURSUE AN OCCUPATION IS PRESUMABLY ON THE SAME
LOFTY FOOTING AS THE RIGHT OF CHOICE IN MATTERS OF FAMILY LIFE, THE
COURT WILL HAVE TO STRAIN VALIANTLY IN ORDER TO AVOID HAVING TODAY'S
OPINION LEAD TO THE INVALIDATION OF MANDATORY RETIREMENT STATUTES FOR
GOVERNMENTAL EMPLOYEES.  IN THAT EVENT FEDERAL, STATE, AND LOCAL
GOVERNMENTAL BODIES WILL BE REMITTED TO THE TASK, TANKLESS BOTH FOR
THEM AND FOR THE EMPLOYEES INVOLVED, OF INDIVIDUAL DETERMINATIONS OF
PHYSICAL IMPAIRMENT AND SENILITY. 

IT HAS BEEN SAID BEFORE, WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483
(1955), BUT IT BEARS REPEATING HERE:  ALL LEGISLATION INVOLVES THE
DRAWING OF LINES, AND THE DRAWING OF LINES NECESSARILY RESULTS IN
PARTICULAR INDIVIDUALS WHO ARE DISADCANTAGED BY THE LINE DRAWN BEING
VIRTUALLY INDISTINGUISHABLE FOR MANY PURPOSES FROM THOSE INDIVIDUALS
WHO BENEFIT FROM THE LEGISLATIVE CLASSIFICATION.  THE COURT'S
DISENCHANTMENT WITH "IRREBUTTABLE PRESUMPTIONS," AND ITS PREFERENCE FOR
"INDIVIDUALIZED DETERMINATION," IS IN THE LAST ANALYSIS NOTHING LESS
THAN AN ATTACK UPON THE VERY NOTION OF LAWMAKING ITSELF. 

THE LINES DRAWN BY THE SCHOOL BOARDS IN THE CITY OF CLEVELAND AND
CHESTERFIELD COUNTY IN THESE CASES REQUIRE PREGNANT TEACHERS TO TAKE
FORCED LEAVE AT A STAGE OF THEIR PREGNANCY WHEN MEDICAL EVIDENCE SEEMS
TO SUGGEST THAT A MAJORITY OF THEM MIGHT WELL BE ABLE TO CONTINUE
TEACHING WITHOUT ANY SIGNIFICANT POSSIBILITY OF PHYSICAL IMPAIRMENT. 
BUT, SO FAR AS I AM AWARE, THE MEDICAL EVIDENCE ALSO SUGGESTS THAT IN
SOME CASES THERE MAY BE PHYSICAL IMPAIRMENT AT THE STAGE OF PREGNANCY
FASTENED ON BY THE REGULATIONS IN QUESTION, AND THAT THE PROBABILITY OF
PHYSICAL IMPAIRMENT INCRESES AS THE PREGNANCY ADVANCES.  IF LEGISLATIVE
BODIES ARE TO BE PERMITTED TO DRAW A GENERAL LINE ANYWHERE SHORT OF THE
DELIVERY ROOM, I CAN FIND NO JUDICIAL STANDARD OF MEASUREMENT WHICH
SAYS THE ONES DRAWN HERE WERE INVALID.  I THEREFORE DISSENT. 

/1/  D.C. CODE ANN. 1 - 1102 (1973). 

/2/  ID., 30 - 103. 

/3/  ID., 25 - 121. 

/4/  IBID. 

/5/  ED., 40 - 301. 

/6/  ID., 1 - 291(B)(2). 

CHARLES F. CLARKE ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONERS
IN NO. 72 - 777.  PHILIP J. HIRSCHKOP ARGUED THE CAUSE FOR PETITIONER
IN NO. 72 - 1129.  WITH HIM ON THE BRIEF WAS JOHN B. MANN. 

JANE M. PICKER ARGUED THE CAUSE FOR RESPONDENTS IN NO. 72 - 777. 
WITH HER ON THE BRIEF WERE RITA PAGE REUSS AND SIDNEY PICKER, JR.
SAMUEL W. HIXON III ARGUED THE CAUSE FOR RESPONDENTS IN NO. 72 - 1129. 
WITH HIM ON THE BRIEF WAS FREDERICK T. GRAY.  /1/ 

/1/  ANDREW J. RUZICHO FILED A BRIEF FOR THE INTERNATIONAL
ASSOCIATION OF OFFICIAL HUMAN RIGHTS AGENCIES AS AMICUS CURIAE URGING
AFFIRMANCE IN NO. 72-777.  PHILIP J. TIERNEY FILED A BRIEF FOR THE
MARYLAND COMMISSION ON HUMAN RELATIONS AS AMICUS CURIAE URGING REVERSAL
IN NO. 72-1129.  BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN NO. 72
1129 WERE FILED BY ANDREW P. MILLER, ATTORNEY GENERAL, AND WALTER H.
RYLAND, ASSISTANT ATTORNEY GENERAL, FOR THE COMMONWEALTH OF VIRGINIA,
AND BY GORDON DEAN BOOTH, JR., RICHARD S. MAURER, AND SIDNEY F. DAVIS
FOR DELTA AIR LINES, INC. BRIEFS OF AMICI CURIAE URGING REVERSAL IN NO.
72-1129 AND AFFIRMANCE IN NO. 72-777 WERE FILED BY SOLICITOR GENERAL
BORK, ASSISTANT ATTORNEY GENERAL POTTINGER, LOUIS F. CLAIBORNE, JOSEPH
T. EDDINS, AND BEATRICE ROSENBERG FOR THE UNITED STATES; BY DAVID RUBIN
AND JERRY D. ANKER FOR THE NATIONAL EDUCATION ASSN. ET AL.; BY WINN
NEWMAN AND RUTH WEYAND FOR THE INTERNATIONAL UNION OF ELECTRICAL, RADIO
AND MACHINE WORKERS, AFL-CIO; BY THEODORE R. MANN, JOSEPH B. ROBINSON,
SYLVIA ROBERTS, RUTH BADER GINSBURG, MELVIN L. WULF, AND JOHN
LIGTENBERG FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL.; AND BY PAUL
O.H. PIGMAN FOR MARGARET M. BROUSSARD.  EVELLE J. YOUNGER, ATTORNEY
GENERAL, ELIZABETH PALMER, ASSISTANT ATTORNEY GENERAL, AND JOANNE
CONDAS, DEPUTY ATTORNEY GENERAL, FILED A BRIEF FOR THE CALIFORNIA
DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT AS AMICUS CURIAE. 
..END :















ONEIDA INDIAN NATION V. COUNTY OF ONEIDA, 414 U.S. 661 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 72 - 851.  ARGUED NOVEMBER 6 - 7, 1973--DECIDED JANUARY

21, 1974; 464 F.2D 916, REVERSED AND REMANDED. 


    PETITIONERS BROUGHT THIS ACTION FOR THE FAIR RENTAL VALUE FOR A

  SPECIFIED PERIOD OF CERTAIN LAND IN NEW YORK THAT THE ONEIDAS HAD

  CEDED TO THE STATE IN 1795, ALLEGING, INTER ALIA, THAT THE

  ONEIDAS HAD OWNED AND OCCUPIED THE LAND FROM TIME IMMEMORIAL TO

  THE TIME OF THE AMERICAN REVOLUTION; THAT IN THE 1780'S AND

  1790'S VARIOUS TREATIES WITH THE UNITED STATES HAD CONFIRMED

  THEIR RIGHT TO POSESSION OF THE LAND UNTIL PURCHASED BY THE

  UNITED STATES; THAT IN 1790 THE TREATIES HAD BEEN IMPLEMENTED BY

  THE NONINTERCOURSE ACT FORBIDDING THE CONVEYANCE OF INDIAN LANDS

  WITHOUT THE UNITED STATES' CONSENT; AND THAT THE 1795 CESSION WAS

  WITHOUT SUCH CONSENT AND HENCE INEFFECTIVE TO TERMINATE THE

  ONEIDAS' RIGHT TO POSESSION UNDER THE TREATIES AND APPLICABLE

  FEDERAL STATUTES.  THE DISTRICT COURT, RULING THAT THE ACTION

  AROSE UNDER STATE LAW, DISMISSED THE COMPLAINT FOR FAILURE TO

  RAISE A QUESTION ARISING UNDER THE LAWS OF THE UNITED STATES

  WITHIN THE MEANING OF EITHER 28 U.S.C. 1331 OR 28 U.S.C. 1362. 

  THE COURT OF APPEALS, RELYING ON THE "WELL-PLEADED COMPLAINT

  RULE" OF TAYLOR V. ANDERSON, 234 U.S. 74, AFFIRMED AND HELD THAT

ALTHOUGH THE DECISION WOULD ULTIMATELY DEPEND ON WHETHER THE 1795

  CESSION COMPLIED WITH THE NONINTERCOURSE ACT, AND WHAT THE

  CONSEQUENCES WOULD BE IF IT DID NOT, THIS ALONE DID NOT ESTABLISH

  "ARISING UNDER" JURISDICTION BECAUSE THE FEDERAL ISSUE WAS NOT

  ONE OF THE NECESSARY ELEMENTS OF THE COMPLAINT, WHICH ESSENTIALLY

  SOUGHT RELIEF BASED ON THE RIGHT TO POSSESSION OF REAL PROPERTY. 

  HELD:  THE COMPLAINT STATES A CONTROVERSY ARISING UNDER THE

  CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES SUFFICIENT

TO INVOKE THE JURISDICTION OF THE DISTRICT COURT UNDER 28 U.S.C.

  1331 AND 1362.  PP. 666 - 682. 

     (A) PETITIONERS ASSERTED A CURRENT RIGHT TO POSSESSION

  CONFERRED BY FEDERAL LAW, WHOLLY INDEPENDENT OF STATE LAW, THE

  THRESHOLD ALLEGATION REQUIRED OF SUCH A WELL-PLEADED

  COMPLAINT--THE RIGHT TO POSSESSION--BEING PLAINLY ENOUGH ALLEGED

TO BE BASED ON FEDERAL LAW SO THAT THE FEDERAL LAW ISSUE DID NOT

  ARISE SOLELY IN ANTICIPATION OF A DEFENSE.  PP. 666, 677. 

     (B) PETITIONERS' CLAIM OF A FEDERAL RIGHT TO POSSESSION

  GOVERNED WHOLLY BY FEDERAL LAW IS NOT SO INSUBSTANTIAL OR DEVOID

  OF MERIT AS TO PRECLUDE A FEDERAL CONTROVERSY WITHIN THE DISTRICT

  COURT'S JURISDIATION, REGARDLESS OF HOW THE FEDERAL ISSUE IS

  ULTIMATELY RESOLVED.  PP. 666 - 676. 

     (C) INDIAN TITLE IS A MATTER OF FEDERAL LAW AND CAN BE

  EXTINGUISHED ONLY WITH FEDERAL CONSENT.  PP. 670 - 674. 

     (D) THIS IS NOT A CASE WHERE THE UNDERLYING RIGHT OR
OBLIGATION

  ARISES ONLY UNDER STATE LAW AND FEDERAL LAW IS MERELY ALLEGED AS

  A BARRIER TO TO ITS EFFECTUATION.  GULLY V. FIRST NATIONAL BANK,

  299 U.S. 109, DISTINGUISHED.  PP. 675 - 676. 

     (E) IN SUSTAINING THE DISTRICT COURT'S JURISDICTION, THE

  WELL-PLEADED COMPLAINT RULE OF TAYLOR V. ANDERSON, SUPRA, IS NOT

  DISTURBED, SINCE HERE THE RIGHT TO POSSESSION ITSELF IS CLAIMED

TO ARISE UNDER FEDERAL LAW IN THE FIRST INSTANCE, AND ALLEGEDLY

  ABORIGINAL TITLE OF AN INDIAN TRIBE GUARANTEED BY TREATY AND

  PROTECTED BY STATUTE HAS NEVER BEEN EXTINGUISHED.  PP. 676. 

     (F) THE COMPLAINT SATISFIES THE REQUIREMENT THAT IT REVEAL A

  DISPUTE OR CONTROVERSY RESPECTING THE VALIDITY, CONSTRUCTION, OR

  EFFECT OF A FEDERAL LAW, UPON THE DETERMINATION OF WHICH THE

  RESULT DEPENDS.  PP. 677 - 678. 

     (G) THE CONCLUSION THAT THIS CASE ARISES UNDER THE LAWS OF THE

  UNITED STATES COMPORTS WITH THE LANGUAGE AND LEGISLATIVE HISTORY

  OF 25 U.S.C. 233 GRANTING TO NEW YORK CIVIL JURISDICTION OVER

  DISPUTES BETWEEN INDIANS OR BETWEEN INDIANS AND OTHERS.  PP. 678

  - 682. 

WHITE, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  REHNIQUIST,
J., FILED A CONCURRING OPINION, IN WHICH POWELL, J., JOINED, POST, P.
682. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

BOTH 1331 AND 1362 OF TITLE 28 OF THE U.S.C. CONFER JURISDICTION ON
THE DISTRICT COURTS TO HEAR CASES "ARISING) UNDER THE CONSTITUTION,
LAWS, OR TREATIES OF THE UNITED STATES."  /1/  SECTION 1331 REQUIRES
THAT THE AMOUNT IN CONTROVERSY EXCEED $10,000.  UNDER 1362, INDIAN
TRIBES MAY BRING SUCH SUITS WITHOUT REGARD TO THE AMOUNT IN
CONTROVERSY.  THE QUESTION NOW BEFORE US IS WHETHER THE DISTRICT COURT
HAD JURISDICTION OVER THIS CASE UNDER EITHER OF THESE SECTIONS. 

        I 

THE COMPLAINT WAS FILED IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF NEW YORK BY THE ONEIDA INDIAN NATION OF NEW YORK
STATE AND THE ONEIDA INDIAN NATION OF WISCONSIN AGAINST THE COUNTIES OF
ONEIDA AND MADISON IN THE STATE OF NEW YORK.  /2/  THE COMPLAINT
ALLEGED THAT FROM TIME IMMEMORIAL DOWN TO THE TIME OF THE AMERICAN
REVOLUTION THE ONEIDAS HAD OWNED AND OCCUPIED SOME SIX MILLION ACRES OF
LAND IN THE STATE OF NEW YORK.  THE COMPLAINT ALSO ALLEGED THAT IN THE
1780'S AND 1790'S VARIOUS TREATIES HAD BEEN ENTERED INTO BETWEEN THE
ONEIDAS AND THE UNITED STATES CONFIRMING THE INDIANS' RIGHT TO
POSSESSION OF THEIR LANDS UNTIL PURCHASED BY THE UNITED STATES /3/  AND
THAT IN 1790 THE TREATIES HAD BEEN IMPLEMENTED BY FEDERAL STATUTE, THE
NONINTERCOURSE ACT, 1 STAT. 137, FORBIDDING THE CONVEYANCE OF INDIAN
LANDS WITHOUT THE CONSENT OF THE UNITED STATES.  IT WAS THEN ALLEGED
THAT IN 1788 THE ONEIDAS HAD CEDED FIVE MILLION ACRES TO THE STATE OF
NEW YORK, 300,000 ACRES BEING WITHHELD AS A RESERVATION, AND THAT IN
1795 A PORTION OF THESE RESERVED LANDS WAS ALSO CEDED TO THE STATE. 
ASSERTEDLY, THE 1795 CESSION WAS WITHOUT THE CONSENT OF THE UNITED
STATES AND HENCE INEFFECTIVE TO TERMINATE THE INDIANS' RIGHT TO
POSSESSION UNDER THE FEDERAL TREATIES AND THE APPLICABLE FEDERAL
STATUTES.  ALSO ALLEGING THAT THE 1795 CESSION WAS FOR AN
UNCONSCIONABLE AND INADEQUATE PRICE AND THAT PORTIONS OF THE PREMISES
WERE NOW IN POSSESSION OF AND BEING USED BY THE DEFENDANT COUNTIES, THE
COMPLAINT PRAYED FOR DAMAGES REPRESENTING THE FAIR RENTAL VALUE OF THE
LAND FOR THE PERIOD JANUARY 1, 1968, THROUGH DECEMBER 31, 1969. 

THE DISTRICT COURT RULED THAT THE CAUSE OF ACTION, REGARDLESS OF THE
LABEL GIVEN IT, WAS CREATED UNDER STATE LAW AND REQUIRED ONLY
ALLEGATIONS OF THE PLAINTIFFS' POSSESSORY RIGHTS AND THE DEFENDANTS'
INTERFERENCE THEREWITH.  THE POSSIBLE NECESSITY OF INTERPRETING A
FEDERAL STATUTE OR TREATIES TO RESOLVE A POTENTIAL DEFENSE WAS DEEMED
INSUFFICIENT TO SUSTAIN FEDERAL QUESTION JURISDICTION.  THE COMPLAINT
WAS ACCORDINGLY DISMISSED FOR WANT OF SUBJECT MATTER JURISDICTION FOR
FAILURE OF THE COMPLAINT TO RAISE A QUESTION ARISING UNDER THE LAWS OF
THE UNITED STATES WITHIN THE MEANING OF EITHER 1331 OR 1362. 

THE COURT OF APPEALS AFFIRMED, WITHONE JUDGE DISSENTING, RULING THAT
THE JURISDICTIONAL CLAIM "SHATTERS ON THE ROCK OF THE 'WELL-PLEADED
COMPLAINT' RULE FOR DETERMINING FEDERAL QUESTION JURISDICTION."  464
F.2D 916, 918 (CA2 1972).  ALTHOUGH "(DECISION WOULD ULTIMATELY TURN ON
WHETHER THE DEED OF 1795 COMPLIED WITH WHAT IS NOW 25 U.S.C. 177 AND
WHAT THE CONSEQUENCES WOULD BE IF IT DID NOT," ID., AT 919, THIS ALONE
DID NOT ESTABLISH "ARISING UNDER" JURISDICTION BECAUSE THE FEDERAL
ISSUE WAS NOT ONE OF THE NECESSARY ELEMENTS OF THE COMPLAINT, WHICH WAS
READ AS ESSENTIALLY SEEKING RELIEF BASED ON THE RIGHT TO POSSESSION OF
REAL PROPERTY.  THE COURT OF APPEALS THOUGHT TAYLOR V. ANDERSON, 234
U.S. 74 (1914), DIRECTLY IN POINT.  THERE, A COMPLAINT IN EJECTMENT DID
NOT STATE A CLAIM ARISING UNDER THE LAWS OF THE UNITED STATES EVEN
THOUGH IT ALLEGED THAT THE DEFENDANTS WERE CLAIMING UNDER A DEED THAT
WAS VOID UNDER ACTS OF CONGRESS RESTRAINING THE ALLIENATION OF LANDS
ALLOTTED TO CHOCTAW AND CHICKASAW INDIANS.  THE COURT APPLIED THE
PRINCIPLE THAT WHETHER A CASE ARISES UNDER FEDERAL LAW FOR PURPOSES OF
THE JURISDICTIONAL STATUTE "MUST BE DETERMINED FROM WHAT NECESSARILY
APPEARS IN THE PLAINTIFF'S STATEMENT OF HIS OWN CLAIM IN THE BILL OR
DECLARATION, UNAIDED BY ANYTHING ALLEGED IN ANTICIPATION OF AVOIDANCE
OF DEFENSES WHICH IT IS THOUGHT THE DEFENDNAT MAY INTERPOSE."  ID., AT
75 - 76.  BECAUSE THE ONLY ESSENTIAL ALLEGATIONS WERE PLAINTIFFS'
RIGHTS TO POSSESSION, DEFENDANTS' WRONGFUL HOLDING AND THE DAMAGE
CLAIM, THE COMPLAINT DID NOT PROPERLY ASSERT A FEDERAL ISSUE, HOWEVER
LIKELY IT MIGHT BE THAT IT WOULD BE RELEVANT TO OR DETERMINATIVE OF A
DEFENSE.  IN THE PRESENT CASE, NOTING THAT THE DISTRICT JUDGE WAS
CORRECT IN HOLDING THAT UNDER NEW YORK LAW THESE ALLEGATIONS WOULD
SUFFICE TO STATE A CAUSE OF ACTION IN EJECTMENT, THE COURT OF APPEALS
CONSIDERED TAYLOR TO BE DISPOSITIVE. 

BOTH THE DISTRICT COURT AND THE COURT OF APPEALS WERE IN ERROR, AND
WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

        II 

ACCEPTING THE PREMISE OF THE COURT OF APPEALS THAT THE CASE WAS
ESSENTIALLY A POSSESSORY ACTION, WE ARE OF THE VIEW THAT THE COMPLAINT
ASSERTED A CURRENT RIGHT TO POSSESSION CONFERRED BY FEDERAL LAW, WHOLLY
INDEPENDENT OF STATE LAW.  THE THRESHOLD ALLEGATION REQUIRED OF SUCH A
WELL-PLEADED COMPLAINT--THE RIGHT TO POSSESSION--WAS PLAINLY ENOUGH
ALLEGED TO BE BASED ON FEDERAL LAW.  THE FEDERAL LAW ISSUE, THEREFORE,
DID NOT ARISE SOLELY IN ANTICIPATION OF A DEFENSE.  MOREOVER, WE THINK
THAT THE BASIS FOR PETITIONERS'  ASSERTION THAT THEY HAD A FEDERAL
RIGHT TO POSSESSION GOVERNED WHOLLY BY FEDERAL LAW CANNOT BE SAID TO BE
SO INSUBSTANTIAL, IMPLAUSIBLE, FORECLOSED BY PRIOR DECISIONS OF THIS
COURT, OR OTHERWISE COMPLETELY DEVOID OF MERIT AS NOT TO INVOLVE A
FEDERAL CONTROVERSY WITHIN THE JURISDICTION OF THE DISTRICT COURT,
WHATEVER MAY BE THE ULTIMATE RESOLUTION OF THE FEDERAL ISSUES ON THE
MERITS.  SEE, E.G., THE FAIR V. KOHLER DIE & SPECIALTY CO., 228 U.S.
22, 25 (1913); MONTANA CATHOLIC MISSIONS V. MISSOULA COUNTY, 200 U.S.
118, 130 (1906); LEVERING & GARRIGUES CO. V. MORRIN, 289 U.S. 103, 105
106 (1933); MONTANA-DAKOTA UTILITIES CO. V. NORTHWESTERN PUBLIC
SERVICE CO., 341 U.S. 246, 249 (1951).  GIVEN THE NATURE AND SOURCE OF
THE POSSESSORY RIGHTS OF INDIAN TRIBES TO THEIR ABORIGINAL LANDS,
PARTICULARLY WHEN CONFIRMED BY TREATY, IT IS PLAIN THAT THE COMPLAINT
ASSERTED A CONTROVERSY ARISING UNDER THE CONSTITUTION, LAWS, OR
TREATIES OF THE UNITED STATES WITHIN THE MEANING OF BOTH 1331 AND
1362. 

IT VERY EARLY BECAME ACCEPTED DOCTRINE IN THIS COURT THAT ALTHOUGH
FEE TITLE TO THE LANDS OCCUPIED BY INDIANS WHEN THE COLONISTS ARRIVED
BECAME VESTED IN THE SEVEREIGN--FIRST THE DISCOVERING EUROPEAN NATION
AND LATER THE ORIGINAL STATES AND THE UNITED STATES--A RIGHT OF
OCCUPANCY IN THE INDIAN TRIBES WAS NEVERTHELESS RECOGNIZED.  THAT
RIGHT, SOMETIMES CALLED INDIAN TITLE AND GOOD AGAINST ALL BUT THE
SOVEREIGN, COULD BE TERMINATED ONLY BY SOVEREIGN ACT.  ONCE THE UNITED
STATES WAS ORGANIZED AND THE CONSTITUTION ADOPTED, THESE TRIBAL RIGHTS
TO INDIAN LANDS BECAME THE EXCLUSIVE PROVINCE OF THE FEDERAL LAW. 
INDIAN TITLE, RECOGNIZED TO BE ONLY A RIGHT OF OCCUPANCY, WAS
EXTINGUISHABLE ONLY BY THE UNITED STATES.  THE FEDERAL GOVERNMENT TOOK
EARLY STEPS TO DEAL WITH THE INDIANS THROUGH TREATY, THE PRINCIPAL
PURPOSE OFTEN BEING TO RECOGNIZE AND GUARANTEE THE RIGHTS OF INDIANS TO
SPECIFIED AREAS OF LAND.  THIS THE UNITED STATES DID WITH RESPECT TO
THE VARIOUS NEW YORK INDIAN TRIBES, INCLUDING THE ONEIDAS.  THE UNITED
STATES ALSO ASSERTED THE PRIMACY OF FEDERAL LAW IN THE FIRST
NONINTERCOURSE ACT PASSED IN 1790, 1 STAT. 137, 138, WHICH PROVIDED
THAT "NO SALE OF LANDS MADE BY ANY INDIANS.  . .WITHIN THE UNITED
STATES, SHALL BE VALID TO ANY PERSO . . .OR TO ANY STAT . . .UNLESS THE
SAME SHALL BE MADE AND DULY EXECUTED AT SOME PUBLIC TREATY, HELD UNDER
THE AUTHORITY OF THE UNITED STATES."  /4/  THIS HAS REMAINED THE POLICY
OF THE UNITED STATES TO THIS DAY.  SEE 25 U.S.C. 177. 

IN UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339, 345
(1941), A UNANIMOUS COURT SUCCINCTLY SUMMARIZED THE ESSENCE OF PAST
CASES IN RELEVANT RESPECTS: 

     "'UNQUESTIONABLY IT HAS BEEN THE POLICY OF THE FEDERAL

  GOVERNMENT FROM THE BEGINNING TO RESPECT THE INDIAN RIGHT OF

  OCCUPANCY, WHICH COULD ONLY BE INTERFERED WITH OR DETERMINED BY

  THE UNITED STATES.'  CRAMER V. UNITED STATES, 261 U.S. 219, 227. 

  THIS POLICY WAS FIRST RECOGNIZED IN JOHNSON V. M'INTOSH, 8

  WHEAT.  543, AND HAS BEEN REPEATEDLY REAFFIRMED.  WORCESTER V.

  GEORGIA, 6 PET. 515; MITCHEL V. UNITED STATES, 9 PET. 711;

  CHOUTEAU V. MOLONY, 16 HOW.  203; HOLDEN V. JOY, 17 WALL.  211;

  BUTTZ V. NORTHERN PACIFIC RAILROAD (, 119 U.S. 55); UNITED STATES

  V. SHOSHONE TRIBE, 304 U.S. 111.  AS STATED IN MITCHEL V. UNITED

  STATES, SUPRA, P. 746, INDIAN 'RIGHT OF OCCUPANCY IS CONSIDERED

  AS SACRED AS THE FEE SIMPLE OF THE WHITES.'" 

THE SANTA FE CASE ALSO REAFFIRMED PRIOR DECISIONS TO THE EFFECT THAT
A TRIBAL RIGHT OF OCCUPANCY, TO BE PROTECTED, NEED NOT BE "BASED UPON A
TREATY, STATUTE, OR OTHER FORMAL GOVERNMENT ACTION."  ID., AT 347. 
TRIBAL RIGHTS WERE NEVERTHELESS ENTITLED TO THE PROTECTION OF FEDERAL
LAW, AND WITH RESPECT TO INDIAN TITLE BASED ON ABORIGINAL POSSESSION,
THE "POWER OF CONGRESS ... IS SUPREME."  IBID. 

AS INDICATED IN SANTA FE, THE FUNDAMENTAL PROPOSITIONS WHICH IT
RESTATED WERE FIRMLY ROOTED IN EARLIER CASES.  IN JOHNSON V. M'INTOSH,
8 WHEAT.  543 (1823), THE COURT REFUSED TO RECOGNIZE LAND TITLES
ORIGINATING IN GRANTS BY INDIANS TO PRIVATE PARTIES IN 1773 AND 1775;
THOSE GRANTS WERE CONTRARY TO THE ACCEPTED PRINCIPLE THAT INDIAN TITLE
COULD BE EXTINGUISHED ONLY BY OR WITH THE CONSENT OF THE GENERAL
GOVERNMENT.  THE LAND IN QUESTION, WHEN CEDED TO THE UNITED STATES BY
THE STATE OF VIRGINIA, WAS "OCCUPIED BY NUMEROUS AND WARLIKE TRIBES OF
INDIANS; BUT THE EXCLUSIVE RIGHT OF THE UNITED STATES TO EXTINGUISH
THEIR TITLE, AND TO GRANT THE SOIL, HAS NEVER, WE BELIEVE, BEEN
DOUBTED."  ID., AT 586.  SEE ALSO ID., AT 591 - 597, 603.  THE
POSSESSORY AND TREATY RIGHTS OF INDIAN TRIBES TO THEIR LANDS HAVE BEEN
THE RECURRING THEME OF MANY OTHER CASES.  /5/ 

THE REDIMENTARY PROPOSITIONS THAT INDIAN TITLE IS A MATTER OF
FEDERAL LAW AND CAN BE EXTINGUISHED ONLY WITH FEDERAL CONSENT APPLY IN
ALL OF THE STATES, INCLUDING THE ORIGINAL 13.  IT IS TRUE THAT THE
UNITED STATES NEVER HELD FEE TITLE TO THE INDIAN LANDS IN THE ORIGINAL
STATES AS IT DID TO ALMOST ALL THE REST OF THE CONTINENTAL UNITED
STATES AND THAT FEE TITLE TO INDIAN LANDS IN THESE STATES, OR THE PRE
EMPTIVE RIGHT TO PURCHASE FROM THE INDIANS, WAS IN THE STATE, FLETCHER
V. PECK, 6 CRANCH 87 (1810).  /6/  BUT THIS REALITY DID NOT ALTER THE
DOCTRINE THAT FEDERAL LAW, TREATIES, AND STATUTES PROTECTED INDIAN
OCCUPANCY AND THAT ITS TERMINATION WAS EXCLUSIVELY THE PROVINCE OF
FEDERAL LAW. 

FOR EXAMPLE, IN WORCESTER V. GEORGIA, 6 PET. 515 (1832), THE STATE
OF GEORGIA SOUGHT TO PROSECUTE A WHITE MAN FOR RESIDING IN INDIAN
COUNTRY CONTRARY TO THE LAWS OF THE STATE.  THIS COURT HELD THE
PROSECUTION A NULLITY, THE CHIEF JUSTICE REFERRING TO THE TREATIES WITH
THE CHEROKEES AND TO THE 

     "UNIVERSAL CONVICTION THAT THE INDIAN NATIONS POSSESSED FULL

  RIGHT TO TO THE LANDS THEY OCCUPIED, UNTIL THAT RIGHT SHOULD BE

  EXTINGUISHED BY THE UNITED STATES, WITH THEIR CONSENT:  THAT

  THEIR TERRITORY WAS SEPARATED FROM THAT OF ANY STATE WITHIN WHOSE

  CHARATERED LIMITS THEY MIGHT RESIDE, BY A BOUNDARY LINE,

  ESTABLISHED BY TREATIES:  THAT, WITHIN THEIR BOUNDARY, THEY

POSSESSED RIGHTS WITH WHICH NO STATE COULD INTERFERE:  AND THAT

  THE WHOLE POWER OF REGULATING THE INTERCOURSE WITH THEM, WAS

  VESTED IN THE UNITED STATES."  ID., AT 560. 

THE CHEROKEE NATION WAS SAID TO BE OCCUPYING ITS OWN TERRITORY "IN
WHICH THE LAWS OF GEORGIA CAN HAVE NO FORCE...."  THE GEORGIA LAW WAS
DECLARED UNCONSTITUTIONAL BECAUSE IT INTERFERED WITH THE RELATIONS
"BETWEEN THE UNITED STATES AND THE CHEROKEE NATION, THE REGULATION OF
WHICH, ACCORDING TO THE SETTLED PRINCIPLES OF OUR CONSTITUTION, ARE
COMMITTED EXCLUSIVELY TO THE GOVERNMENT OF THE UNION."  ID., AT 561. 

THERE ARE CASES OF SIMILAR IMPORT WITH RESPECT TO THE NEW YORK
INDIANS.  THESE CASES LEND SUBSTANCE TO PETITIONERS' ASSERTION THAT THE
POSSESSORY RIGHT CLAIMED IS A FEDERAL RIGHT TO THE LANDS AT ISSUE IN
THIS CASE.  FELLOWS V. BLACKSMITH, 19 HOW.  366, 372 (1857), WHICH
CONCERNED THE SENECA INDIANS, HELD THAT THE "FORCIBLE REMOVAL (OF
INDIANS) MUST BE MADE, IF MADE AT ALL, UNDER THE DIRECTION OF THE
UNITED STATES (AND) THAT THIS INTERPRETATION IS IN ACCORDANCE WITH THE
USAGES AND PRACTICE OF THE GOVERNMENT IN PROVIDING FOR THE REMOVAL OF
INDIAN TRIBES FROM THEIR ANCIENT POSSESSIONS."  IN THE NEW YORK
INDIANS, 5 WALL.  761 (1867), THE STATE SOUGHT TO TAX THE RESERVATION
LANDS OF THE SENECAS.  THE COURT HELD THE TAX VOID.  THE COURT REFERRED
TO THE INDIAN RIGHT OF OCCUPANCY AS CREATING "AN INDEFEASIBLE TITLE TO
THE RESERVATIONS THAT MAY EXTEND FROM GENERATION TO GENERATION, AND
WILL CEASE ONLY BY THE DISSOLUTION OF THE TRIBE, OR THEIR CONSENT TO
SELL TO THE PARTY POSSESSED OF THE RIGHT OF PRE-EMPTION," ID., AT 771,
AND NOTED THAT NEW YORK "POSSESSED NO POWER TO DEAL WITH INDIAN RIGHTS
OR TITLE," ID., AT 769.  OF MAJOR IMPORTANCE, HOWEVER, WAS THE TREATY
OF 1794 IN WHICH THE UNITED STATES ACKNOWLEDGED CERTAIN TERRITORY TO BE
THE PROPERTY OF THE SENECA NATION AND PROMISED THAT "IT SHALL REMAIN
THEIRS UNTIL THEY CHOOSE TO SELL THE SAME TO THE PEOPLE OF THE UNITED
STATES...."  ID., AT 766 - 767.  THE RIGHTS OF THE INDIANS TO OCCUPY
THOSE LANDS "DO NOT DEPEND ON ... ANY ... STATUTES OF THE STATE, BUT
UPON TREATIES, WHICH ARE THE SUPREME LAW OF THE LAND; IT IS TO THESE
RIGHTS, AND THE EXTENT OF THEM."  ID., AT 768.  /7/  THE STATE'S
ATTEMPT TO TAX RESERVATION LANDS WAS INVLAIDATED AS AN INTERFERENCE
WITH INDIAN POSSESSORY RIGHTS GUARANTEED BY THE FEDERAL GOVERNMENT. 
MUCH LATER, IN UNITED STATES V. FORNESS, 125 F.2D 928 (CA2), CERT.
DENIED, SUB NOM. CITY OF SALAMANCA V. UNITED STATES, 316 U.S. 694
(1942), /8/  THE GOVERNMENT SUED TO SET ASIDE CERTAIN LEASES GRANTED BY
THE SENECA TRIBE ON CERTAIN RESERVATION LANDS.  IT WAS ARGUED IN
OPPOSITION THAT THE SUIT WAS MERELY AN ACTION FOR EJECTMENT WHICH UNDER
STATE LAW COULD BE DEFEATED BY A TENDER; BUT THE COURT OF APPEALS FOR
THE SECOND CIRCUIT HELD THAT THE INDIAN RIGHTS WERE FEDERAL AND THAT
"STATE LAW CANNOT BE INVOKED TO LIMIT THE RIGHTS IN LANDS GRANTED BY
THE UNITED STATES TO THE INDIANS, BECAUSE, AS THE COURT BELOW
RECOGNIZED, STATE LAW DOES NOT APPLY TO THE INDIANS EXCEPT SO FAR AS
THE UNITED STATES HAS GIVEN ITS CONSENT."  ID., AT 932.  THERE BEING NO
FEDERAL STATUTE MAKING THE STATUTORY OR DECISIONAL LAW OF THE STATE OF
NEW YORK APPLICABLE TO THE RESERVATIONS, THE CONTROLLING LAW REMAINED
FEDERAL LAW; AND, ABSENT FEDERAL STATUTORY GUIDANCE, THE GOVERNING RULE
OF DECISION WOULD BE FASHIONED BY THE FEDERAL COURT IN THE MODE OF THE
COMMON LAW.  /9/

        III 

ENOUGH HAS BEEN SAID, WE THINK, TO INDICATE THAT THE COMPLAINT IN
THIS CASE ASSERTS A PRESENT RIGHT TO POSSESSION UNDER FEDERAL LAW.  THE
CLAIM MAY FAIL AT A LATER STAGE FOR A VARIETY OF REASONS; BUT FOR
JURISDICTIONAL PURPOSES, THIS IS NOT A CASE WHERE THE UNDERLYING RIGHT
OR OBLIGATION ARISES ONLY UNDER STATE LAW AND FEDERAL LAW IS MERELY
ALLEGED AS A BARRIER TO ITS EFFECTUATION, AS WAS THE CASE IN GULLY V.
FIRST NATIONAL BANK, 299 U.S. 109 (1936).  THERE, THE SUIT WAS ON A
CONTRACT HAVING ITS GENESIS IN STATE LAW, AND THE TAX THAT THE
DEFENDANT HAD PROMISED TO PAY WAS IMPOSED BY A STATE STATUTE.  THE
POSSIBILITY THAT A FEDERAL STATUTE MIGHT BAR ITS COLLECTION WAS
INSUFFICIENT TO MAKE THE CASE ONE ARISING UNDER THE LAWS OF THE UNITED
STATES. 

NOR IN SUSTAINING THE JURISDICTION OF THE DISTRICT COURT DO WE
DISTURB THE WELL-PLEADED COMPLAINT RULE OF TAYLOR V. ANDERSON, SUPRA,
AND LIKE CASES.  /10/  HERE, THE RIGHT TO POSSESSION ITSELF IS CLAIMED
TO ARISE UNDER FEDERAL LAW IN THE FIRST INSTANCE.  ALLEGEDLY,
ABORIGINAL TITLE OF AN INDIAN TRIBE GUARANTEED BY TREATY AND PROTECTED
BY STATUTE HAS NEVER BEEN EXTINGUISHED.  IN TAYLOR, THE PLAINTIFFS WERE
INDIVIDUAL INDIANS, NOT AN INDIAN TRIBE; AND THE SUIT CONCERNED LANDS
ALLOCATED TO INDIVIDUAL INDIANS, NOT TRIBAL RIGHTS TO LANDS.  SEE 32
STAT. 641.  INDIVIDUAL PATENTS HAD BEEN ISSUED WITH ONLY THE RIGHT TO
ALIENATION BEING RESTRICTED FOR A PERIOD OF TIME.  CF. MINNESOTA V.
UNITED STATES, 305 U.S. 382, 386 N. 1 (1939); MCKAY V. KALYTON, 204
U.S. 458 (1907).  INSOFAR AS THE UNDERLYING RIGHT TO POSSESSION IS
CONCERNED, TAYLOR IS MORE LIKE THOSE CASES INDICATING THAT "A
CONTROVERSY IN RESPECT OF LANDS HAS NEVER BEEN REGARDED AS PRESENTING A
FEDERAL QUESTION MERELY BECAUSE ONE OF THE PARTIES TO IT HAS DERIVED
HIS TITLE UNDER AN ACT OF CONGRESS."  SHULTHIS V. MCDOUGAL, 225 U.S.
561, 570 (1912).  /11/  ONCE PATENT ISSUES, THE INCIDENTS OF OWNERSHIP
ARE, FOR THE MOST PART, MATTERS OF LOCAL PROPERTY LAW TO BE VINDICATED
IN LOCAL COURTS, AND IN SUCH SITUATIONS IT IS NORMALLY INSUFFICIENT FOR
"ARISING UNDER" JURISDICATION MERELY TO ALLEGE THAT OWNERSHIP OR
POSSESSION IS CLAIMED UNDER A UNITED STATES PATENT.  JOY V. CITY OF ST.
LOUIS, 201 U.S. 332, 342 - 343 (1906).  AS THE COURT STATED IN PACKER
V. BIRD, 137 U.S. 661, 669 (1891): 

     "THE COURTS OF THE UNITED STATES WILL CONSTRUE THE GRANTS OF

THE GENERAL GOVERNMENT WITHOUT REFERENCE TO THE RULES OF

CONSTRUCTION ADOPTED BY THE STATES FOR THEIR GRANTS; BUT WHATEVER

  INCIDENTS OR RIGHTS ATTACH TO THE OWNERSHIP OF PROPERTY CONVEYED

  BY THE GOVERNMENT WILL BE DETERMINED BY THE STATES, SUBJECT TO

  THE CONDITION THAT THEIR RULES DO NOT IMPAIR THE EFFICACY OF THE

  GRANTS OR THE USE AND ENJOYMENT OF THE PROPERTY BY THE GRANTEE." 

IN THE PRESENT CASE, HOWEVER, THE ASSERTION OF A FEDERAL CONTROVERSY
DOES NOT REST SOLELY ON THE CLAIM OF A RIGHT TO POSSESSION DERIVED FROM
A FEDERAL GRANT OF TITLE WHOSE SCOPE WILL BE GOVERNED BY STATE LAW. 
RATHER, IT RESTS ON THE NOT INSUBSTANTIAL CLAIM THAT FEDERAL LAW NOW
PROTECTS, AND HAS CONTINUOUSLY PROTECTED FROM THE TIME OF THE FORMATION
OF THE UNITED STATES, POSSESSORY RIGHT TO TRIBAL LANDS, WHOLLY APART
FROM THE APPLICATION OF STATE LAW PRINCIPLES WHICH NORMALLY AND
SEPARATELY PROTECT A VALID RIGHT OF POSSESSION. 

FOR THE SAME REASONS, WE THINK THE COMPLAINT BEFORE US SATISFIES THE
ADDITIONAL REQUIREMENT FORMULATED IN SOME CASES THAT THE COMPLAINT
REVEAL A "DISPUTE OR CONTROVERSY RESPECTING THE VALIDITY, CONSTRUCTION
OR EFFECT OF SUCH A LAW, UPON THE DETERMINATION OF WHICH THE RESULT
DEPENDS."  SHULTHIS V. MCDOUGLA, SUPRA, AT 569; GOLD-WASHING & WATER
CO. V. KEYES, 96 U.S. 199, 203 (1878).  /12/  HERE, THE ONEIDAS ASSERT
A PRESENT RIGHT TO POSSESSION BASED IN PART ON THEIR ABORIGINAL RIGHT
OF OCCUPANCY WHICH WAS NOT TERMINABLE EXCEPT BY ACT OF THE UNITED
STATES.  THEIR CLAIM IS ALSO ASSERTED TO ARISE FROM TREATIES
GUARANTEEING THEIR POSSESSORY RIGHT UNTIL TERMINATED BY THE UNITED
STATES, AND "IT IS TO THESE TREATIES (THAT) WE MUST LOOK TO ASCERTAIN
THE NATURE OF THESE (INDIAN) RIGHTS, AND THE EXTENT OF THEM"  THE NEW
YORK INDIANS, 5 WALL., AT 768.  FINALLY, THE COMPLAINT ASSERTS A CLAIM
UNDER THE NONINTERCOURSE ACTS WHICH PUT IN STATUTORY FORM WHAT WAS OR
CAME TO BE THE ACCEPTED RULE--THAT THE EXTINGUISHMENT OF INDIAN TITLE
REQUIRED THE CONSENT OF THE UNITED STATES.  TO US, IT IS SUFFICIENTLY
CLEAR THAT THE CONTROVERSY STATED IN THE COMPLAINT ARISES UNDER THE
FEDERAL LAW WITHIN THE MEANING OF THE JURISDICTIONAL STATUTES AND OUR
DECIDED CASES. 

        IV 

THIS IS NOT TO IGNORE THE OBVIOUS FACT THAT NEW YORK HAD LEGITIMATE
AND FAR-REACHING CONNECTIONS WITH ITS INDIAN TRIBES ANTEDATING THE
CONSTITUTION AND THAT THE STATE HAS CONTINUED TO PLAY A SUBSTANTIAL
ROLE WITH RESPECT TO THE INDIANS IN THAT STATE.  /13/  THERE HAS BEEN
RECURRING TENSION BETWEEN FEDERAL AND STATE LAW; STATE AUTHORITIES HAVE
NOT EASILY ACCEPTED THE NOTION THAT FEDERAL LAW AND FEDERAL COURTS MUST
BE DEEMED THE CONTROLLING CONSIDERATIONS IN DEALING WITH THE INDIANS. 
FELLOWS V. BLACKSMITH, THE NEW YORK INDIANS, UNITED STATES V. FORNESS,
AND THE TUSCARORA LITIGATION ARE SUFFICIENT EVIDENCE THAT THE REACH AND
EXCLUSIVITY OF FEDERAL LAW WITH RESPECT TO RESERVATION LANDS AND
RESERVATION INDIANS DID NOT GO UNCHALLENGED; AND IT MAY BE THAT THEY
ARE TO SOME EXTENT CHALLENGED HERE.  BUT THIS ONLY UNDERLINES THE LEGAL
REALITY THAT THE CONTROVERSY ALLEGED IN THE COMPLAINT MAY WELL DEPEND
ON WHAT THE REACH AND IMPACT OF THE FEDERAL LAW WILL PROVE TO BE IN
THIS CASE. 

WE ARE ALSO AWARE THAT NEW YORK AND FEDERAL AUTHORITIES EVENTUALLY
REACHED PARTIAL AGREEMENT IN 1948 WHEN CRIMINAL JURISDICTION OVER NEW
YORK INDIAN RESERVATIONS WAS CEDED TO THE STATE.  62 STAT. 1224, 25
U.S.C. 232.  IN ADDITION, IN 1950 CIVIL DISPUTES BETWEEN INDIANS OR
BETWEEN INDIANS AND OTHERS WERE PLACED WITHIN THE JURISDICTION OF THE
STATE COURTS "TO THE SAME EXTENT AS THE COURTS OF THE STATE SHALL HAVE
JURISDICTION IN OTHER CIVIL ACTIONS AND PROCEEDINGS, AS NOW OR
HEREAFTER DEFINED BY THE LAWS OF SUCH STATE."  64 STAT. 845, 25 U.S.C.
233.  /14/  THE LATTER STATUTE, HOWEVER, PROVIDED FOR THE PRESERVATION
OF TRIBAL LAWS AND CUSTOMS AND SAVED INDIAN RESERVATION LANDS FROM
TAXATION AND, WITH CERTAIN EXCEPTIONS, FROM EXECUTION TO SATISFY STATE
COURT JUDGMENTS.  FURTHERMORE, IT PROVIDED THAT NOTHING IN THE STATUTE
"SHALL BE CONSTRUED AS AUTHORIZING THE ALIENATION FROM ANY INDIAN
NATION, TRIBE, OR BAND OF INDIANS OF ANY LANDS WITHIN ANY INDIAN
RESERVATION IN THE STATE OF NEW YORK" OR AS "CONFERRING JURISDICTION ON
THE COURTS OF THE STATE OF NEW YORK OR MAKING APPLICABLE THE LAWS OF
THE STATE OF NEW YORK IN CIVIL ACTIONS INVOLVING INDIAN LANDS OR CLAIMS
WITH RESPECT THERETO WHICH RELATE TO TRANSACTIONS OR EVENTS TRANSPIRING
PRIOR TO SEPTEMBER 13, 1952."  THE SENATE REPORT ON THE BILL DISCLAIMED
ANY INTENTION OF "IMPAIRING ANY OF THEIR PROPERTY OR RIGHTS UNDER
EXISTING TREATIES WITH THE UNITED STATES."  S. REP. NO. 1836, 81ST
CONG., 2D SESS., 2(1950).  UNDER THE PENULTIMATE PROVISO THE MATTER OF
ALIENATING TRIBAL RESERVATION LANDS WOULD APPEAR TO HAVE BEEN LEFT
PRECISELY WHERE IT WAS PRIOR TO THE ACT.  /15/  MOREOVER, THE FINAL
PRIVISO OF THE STATUTE NEGATIVING THE APPLICATION OF STATE LAW WITH
RESPECT TO TRANSACTIONS PRIOR TO THE ADOPTION OF THE ACT WAS ADDED BY
AMENDMENT ON THE FLOOR OF THE SENATE, AND ITS PURPOSE WAS EXPLAINED BY
THE GENTLEMAN WHO OFFERED IT TO BE AS FOLLOWS: 

     "MR. CHAIRMAN, I DO NOT THINK THERE WILL BE ANY OBJECTION FROM

  ANY SOURCE WITH REGARD TO THIS PARTICULAR AMENDMENT.  THIS JUST

  ASSURES THE INDIANS OF AN ABSOLUTELY FAIR AND IMPARTIAL

  DETERMINATION OF ANY CLAIMS THEY MIGHT HAVE HAD GROWING OUT OF

ANY RELATIONSHIP THEY HAVE HAD WITH THE GREAT STATE OF NEW YORK

  IN REGARD TO THEIR LANDS. 

     "I THINK THERE WILL BE NO OBJECTION TO THAT; THEY CERTAINLY

  OUGHT TO HAVE THOSE CLAIMS PROPERLY ADJUDICATED.... 

     "IN ADDITION THERETO, OF COURSE, THEY MAY GO INTO THE FEDERAL

  COURTS AND ADJUDICATE ANY DIFFERENCES THEY HAVE HAD BETWEEN

  THEMSELVES AND THE GREAT STATE OF NEW YORK RELATIVE TO THEIR

 LANDS, OR CLAIMS IN REGARD THERETO, AND I AM SURE THAT THE STATE

  OF NEW YORK SHOULD HAVE AND NO DOUBT WILL HAVE, NO OBJECTION TO

  SUCH PROVISION."  96 CONG. REC. 12460 (1950) (REMARKS OF

  CONGRESSMAN MORRIS). 

OUR CONCLUSION THAT THIS CASE ARISES UNDER THE LAWS OF THE UNITED
STATES IS, THEREFORE, WHOLLY CONSISTENT WITH AND IN FURTHERANCE OF THE
INTENT OF CONGRESS AS EXPRESSED BY ITS GRANT OF CIVIL JURISDICTION OF
THE STATE OF NEW YORK WITH THE INDICATED EXCEPTIONS.  /16/ 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SECTION 1331(A) PROVIDES: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL CIVIL
ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF
$10,000, EXCLUSIVE OF INTEREST AND COSTS, AND ARISES UNDER THE
CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES." 

UNDER 1362: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL CIVIL
ACTIONS, BROUGHT BY ANY INDIAN TRIBE OR BAND WITH A GOVERNING BODY DULY
RECOGNIZED BY THE SECRETARY OF THE INTERIOR, WHEREIN THE MATTER IN
CONTROVERSY ARISES UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE
UNITED STATES." 

/2/  INITIALLY, ONLY DIVERSITY JURISDICTION UNDER 28 U.S.C. 1332 WAS
ALLEGED IN THE COMPLAINT.  THE NECESSARY JURISDICTIONAL AMOUNT WAS
AVERRED.  FEDERAL QUESTION JURISDICTION WAS ASSERTED BY AN AMENDMENT TO
THE COMPLAINT.  JURISDICTION UNDER 1332 WAS REJECTED BY THE DISTRICT
COURT AND THE COURT OF APPEALS AND IS NOT AT ISSUE HERE. 

/3/  THREE TREATIES WITH THE SIX INDIAN NATIONS OF THE IROQUOIS
CONFEDERACY IN NEW YORK WERE ALLEGED:  THE TREATY OF FORT STANWIX OF
1784, WHICH PROVIDES IN PART THAT "(THE ONEIDA AND TUSCARORA NATIONS
SHALL BE SECURED IN THE POSSESSION OF THE LANDS ON WHICH THEY ARE
SETTLED"; THE TREATY OF FORT HARMAR OF 1789 WHERE THE ONEIDA AND THE
TUSCARORA NATIONS WERE "AGAIN SECURED AND CONFIRMED IN THE POSSESSION
OF THEIR RESPECTIVE LANDS"; AND THE TREATY OF CANANDAIGUA OF 1794, ART.
II OF WHICH PROVIDES:  "THE UNITED STATES ACKNOWLEDGE THE LANDS
RESERVED TO THE ONEIDA, ONONDAGA AND CAYUGA NATIONS, IN THEIR
RESPECTIVE TREATIES WITH THE STATE OF NEW YORK, AND CALLED THEIR
RESERVATIONS, TO BE THEIR PROPERTY; AND THE UNITED STATES WILL NEVER
CLAIM THE SAME, NOR DISTURB THEM.  . .IN THE FREE USE AND ENJOYMENT
THEREOF:  BUT THE SAID RESERVATIONS SHALL REMAIN THEIRS, UNTIL THEY
CHOOSE THE SELL THE SAME TO THE PEOPLE OF THE UNITED STATES, WHO HAVE
THE RIGHT TO PURCHASE."  THE TREATIES REFERRED TO ARE FOUND AT 7 STAT.
15, 7 STAT. 33, AND 7 STAT. 44, RESPECTIVELY. 

/4/  SECTION 4 OF THE ACT PROVIDED THAT "NO SALE OF LANDS MADE BY
ANY INDIANS, OR ANY NATION OR TRIBE OF INDIANS WITHIN THE UNITED
STATES, SHALL BE VALID TO ANY PERSON OR PERSONS, OR TO ANY STATE,
WHETHER HAVING THE RIGHT OF PRE-EMPTION TO SUCH LANDS OR NOT, UNLESS
THE SAME SHALL BE MADE AND DULY EXECUTED AT SOME PUBLIC TREATY, HELD
UNDER THE AUTHORITY OF THE UNITED STATES."  THE SECOND NONINTERCOURSE
ACT PASSED IN 1793 MADE IT A MISDEMEANOR TO NEGOTIATE FOR INDIAN LANDS
WITHOUT FEDERAL AUTHORITY, BUT IT WAS MADE LAWFUL FOR STATE AGENTS WHO
WERE PRESENT AT ANY TREATY HELD WITH THE INDIANS UNDER THE AUTHORITY OF
THE UNITED STATES, IN THE PRESENCE AND WITH THE APPROBATION OF THE
UNITED STATES COMMISSIONER, "TO PROPOSE TO, AND ADJUST WITH THE
INDIANS, THE COMPENSATION TO BE MADE FOR THEIR CLAIMS TO LANDS WITHIN
SUCH STATE, WHICH SHALL BE EXTINGUISHED BY THE TREATY."  U STAT. 329,
330 - 331 8.  THIS STATUTORY POLICY, WITHOUT MAJOR CHANGE, WAS CARRIED
FORWARD IN 12 OF THE 1796 ACT, 1 STAT. 469, 472; 12 OF THE 1799 ACT, 1
STAT. 743, 746; 12 OF THE 1802 ACT, 2 STAT. 139, 143; 12 OF THE ACT OF
1834, 4 STAT. 729, 730 - 731; AND IN REV. STAT. 2116, NOW 25 U.S.C.
177. 

/5/  REPRESENTATIVE OF ALMOST COUNTLESS CASES ARE CHEROKEE NATION V.
GEORGIA, 5 PET. 1 (1831); UNITED STATES V. ROGERS, 4 HOW.  567 (1846);
THE KANSAS INDIANS, 5 WALL.  737 (1866); THE NEW YORK INDIANS, 5 WALL. 
761 (1867); HOLDEN V. JOY, 17 WALL.  211 (1872); BEECHER V. WETHERBY,
95 U.S. 517 (1877); UNITED STATES V. KAGAMA, 118 U.S. 375 (1886);
SPALDING V. CHANDLER, 160 U.S. 394 (1896); UNITED STATES V. SANDOVAL,
231 U.S. 28 (1913); NADEAU V. UNION PACIFIC R. CO., 253 U.S. 442
(1920); MINNESOTA V. UNITED STATES, 305 U.S. 382 (1939); UNITED STATES
V. TALLAMOOKS, 329 .S.  U.40 (1946); TEE-HIT-TOM INDIANS V. UNITED
STATES, 348 U.S. 272 (1955).     U.S. DEPT. OF INTERIOR, FEDERAL INDIAN
LAW 32 - 43, 583 - 645, 675 - 687 (1958) (HEREINAFTER FEDERAL INDIAN
LAW), SETS OUT SOME OF THE FUNDAMENTALS OF THE LAW DEALING WITH INDIAN
POSSESSORY RIGHTS TO REAL PROPERTY STEMMING FROM ABORIGINAL TITLE,
TREATY, AND STATUTE.     /6/  SEE ALSO CHEROKEE NATION V. GEORGIA,
SUPRA, AT 38; CLARK V. SMITH, 13 PET. 195 (1839); LATTIMER V. POTEET,
14 PET. 4 (1840); SENECA NATION V. CHRISTY, 162 U.S. 283 (1896). 
"OUTSIDE OF THE TERRITORY OF THE ORIGINAL COLONIES, THE ULTIMATE FEE IS
LOCATED IN THE UNITED STATES AND MAY BE GRANTED TO INDIVIDUALS SUBJECT
TO THE INDIAN RIGHT OF OCCUPANCY."  FEDERAL INDIAN LAW 599; MISSOURI V.
IOWA, 7 HOW.  660 (1849). 

/7/  IN AN EARLIER CASE, NEW YORK EX REL. CUTLER V. DIBBLE, 21 HOW. 
366 (1859), THE COURT HAD UPHELD NEW YORK STATUTES WHICH PROTECTED THE
INDIANS FROM INTRUSION BY OTHERS ON THEIR TRIBAL LANDS, AND HAD
ASSERTED THAT "(NOTWITHSTANDING THE PECULIAR RELATION WHICH THESE
INDIAN NATIONS HOLD TO THE GOVERNMENT OF THE UNITED STATES, THE STATE
OF NEW YORK HAD THE POWER OF A SOVEREIGN OVER THEIR PERSONS AND
PROPERTY, SO FAR AS IT WAS NECESSARY TO PRESERVE THE PEACE OF THE
COMMONWEALTH, AND PROTECT THESE FEEBLE AND HELPLESS BANDS FROM
IMPOSITION AND INTRUSION."  ID., AT 370.  IT IS APPARENT THAT BY THE
LATER DECISION IN THE NEW YORK INDIANS, SUPRA, THE COURT DID NOT
CONSIDER THE POTENTIAL IMPLICATIONS OF THE DICTUM EXPRESSED IN DIBBLE
APPLICABLE IN SITUATIONS WHERE THE STATE'S POWER WAS EXERCISED OTHER
THAN FOR THE PROTECTION OF THE INDIANS ON THEIR TRIBAL LANDS.  IN ANY
EVENT, WHATEVER DIBBLE MAY HAVE HELD WITH RESPECT TO STATE POWER TO
PROTECT INDIAN POSSESSION, IT DOES NOT QUESTION THE INDIANS' RIGHT TO
POSSESSION UNDER FEDERAL LAW. 

/8/  THE QUESTION OF THE APPLICATION OF FEDERAL LAW TO INDIAN TRIBAL
PROPERTY IN NEW YORK WAS LITIGATED IN THE STATE COURTS IN THE
INTERVENING YEARS AS WELL.  IN 1870, AN UNREPORTED DECISION OF THE NEW
YORK SUPREME COURT HELD THAT TRIBAL LEASES OF SENECA RESERVATION LANDS,
RATIFIED BY THE NEW YORK LEGISLATURE, WERE INVALID IN THE ABSENCE OF
APPROVAL FROM THE UNITED STATES.  SEE UNITED STATES V. FORNESS, SUPRA,
AT 930 - 931; H. R. REP. MISC. DOC. NO. 75, 43D CONG., 2D SESS. (1875);
BRIEF FOR THE WARDEN AND THE STATE OF NEW YORK 26 - 27, NEW YORK EX
REL. RAY V. MARTIN, NO. 158, O. T. 1945, 326 U.S. 496 (1946).  IN THE
MID-1890'S IN BUFFALO,& P. R. CO. V. LAVERY, 75 HUN.  396, 27 N.Y.S.
443 (5TH DEPT., PP. DIV.  AP1894), AFFIRMED ON OPINION BELOW, 149 N.Y.
576, 43 N.E. 986 (1896), A PRIVATE NON-INDIAN LESSEE OF INDIAN LAND
UNDER A LEASE FIRST GRANTED BY THE SENECAS IN 1866, WHICH WAS
CONCEDEDLY NOT LEGALLY EFFECTIVE UNTIL AN 1875 ACT OF CONGRESS
VALIDATED SUCH LEASES, WAS NONETHELESS HELD TO HAVE PRIORITY OVER A
RAILROAD CLAIMING UNDER AN 1872 LEASE FROM THE SENECAS AND A STATE
STATUTE PURPORTEDLY VALIDATING THE LEASE AS ONE TO A RAILROAD WHICH HAD
BEEN RATIFIED BY A STATE COURT, BECAUSE THE STATE STATUTE WHICH WOULD
HAVE GIVEN THE RAILROAD A SUPERIOR RIGHT TO POSSESSION WAS INCAPABLE OF
CONFIRMING POSSESSORY RIGHTS TO INDIAN TRIBAL LANDS WITHOUT FEDERAL
AUTHORITY.  THE NEW YORK COURTS HELD THAT IT WAS "NOT WITHIN THE
LEGISLATIVE POWER OF THE STATE TO ENABLE THE INDIAN NATION TO MAKE, OR
OTHERS TO TAKE FROM THE INDIANS, GRANTS OR LEASES OF LANDS WITHIN THEIR
RESERVATIONS.  IN THAT MATTER THE FEDERAL GOVERNMENT, HAVING THE POWER
UNDER THE CONSTITUTION TO DO SO, HAS ASSUMED TO CONTROL IT BY . .  CT
OF CONGRESS (REFERRING TO THE INDIAN NONINTERCOURSE ACT)....  AS
RESPECTS THEIR LANDS, SUBJECT ONLY TO THE PRE-EMPTIVE TITLE, THE
INDIANS ARE TREATED AS THE WARDS OF THE UNITED STATES, AND IT IS ONLY
PURSUANT TO THE FEDERAL AUTHORITY THAT THEIR LANDS CAN BE GRANTED OR
DEMISED BY OR ACQUIRED BY CONVEYANCE OR LEASED FROM THEM."  75 HEN., AT
399 - 400, 27 N.Y.S., AT 445. 

STILL LATER, IN PEOPLE EX REL. CUSICK V. DALY, 212 N.Y. 183, 105
N.E. 1048 (1914), THE NEW YORK COURT OF APPEALS HELD THAT WITHOUT THE
CONSENT OF CONGRESS NEW YORK COULD NOT PROSECUTE INDIAN CRIMES ON
RESERVATIONS.  RELYING ON THE CLASSIC FEDERAL CASES, THE COURT HELD
THAT FEDERAL POWER WAS PRE-EMINENT AND THAT THE FEDERAL GOVERNMENT HAD
MADE TREATIES WITH THE INDIANS WHICH CONFIRMED THEIR TERRITORIAL
POSSESSION, ALTHOUGH THE FEDERAL GOVERNMENT NEVER OWNED THE FEE OF THE
LAND WITHIN THE STATTE'S CONFINES.  ID., AT 182, 105 N.E., AT 1050. 
WITHIN THE RESERVATION FEDERAL POWER, WHEN EXERCISED, FORECLOSED THE
EXERCISE OF POWER BY THE STATE.  "IT IS SAID THAT THERE IS A DIFFERENCE
BETWEEN THE INDIANS WHOSE RESERVATIONS ARE THE DIRECT GIFT OF THE
FEDERAL GOVERNMENT AND THOSE WHOSE RESERVATIONS HAVE BEEN DERIVED FROM
THE STATE OR FROM OTHER SOURCES.  WE FIND NO SUCH DISTINCTION IN THE
STATUTE, AND WE CAN THINK OF NONE THAT LOGICALLY DIFFERENTIATES ONE
FROM THE OTHER.  EVEN IF WE ASSUME THAT, IN THE ABSENCE OF FEDERAL
LEGISLATION, THE STATE HAS THE MOST AMPLE POWER TO LEGISLATE FOR THE
INDIANS WITHIN ITS BORDERS, THERE SEEMS TO BE NO ESCAPE FROM THE
CONCLUSION THAT WHEN CONGRESS DOES ACT THE POWER OF THE STATE MUST
YIELD TO THE PARAMOUNT AUTHORITY OF THE FEDERAL GOVERNMENT."  ID., AT
196 - 197, 105 N.E., AT 1052. 

/9/  STILL LATER, FEDERAL AUTHORITY OVER INDIAN LANDS WAS AGAIN
CHALLENGED.  IN TUSCARORA NATION OF INDIANS V. POWER AUTHORITY, 257
F.2D 885 (1958), THE COURT OF APPEALS FOR THE SECOND CIRCUIT REJECTED
NEW YORK'S CLAIM THAT THE NONINTERCOURSE ACT DID NOT APPLY TO THE STATE
OF NEW YORK AND THAT, AS ONE OF THE ORIGINAL 13 STATES, IT NEVER
SURRENDERED TO THE UNITED STATES ITS POWER TO CONDEMN INDIAN LANDS. 
THE COURT OF APPEALS ALSO HELD THAT THE ACT OF SEPT. 13, 1950, 64 STAT.
845, 25 U.S.C. 233, WHEREBY THE UNITED STATES CEDED CIVIL JURISDICTION
OVER INDIAN RESERVATIONS TO THE STATE OF NEW YORK, EXPRESSLY AND
EFFECTIVELY EXCEPTED FROM ITS COVERAGE THE ALIENATION OF RESERVATION
LANDS, A MATTER OVER WHICH THE UNITED STATES HAD REAFFIRMED ITS
PARAMOUNT AUTHORITY.  NONETHELESS, THE COURT OF APPEALS HELD THAT THE
NIAGARA RIVER POWER PROJECT ACT, 71 STAT. 401 (1957), 16 U.S.C. 836,
836A, BY WHICH CONGRESS DIRECTED THE FEDERAL POWER COMMISSION TO ISSUE
A LICENSE TO THE NEW YORK POWER AUTHORITY FOR THE CONSTRUCTION AND
OPERATION OF A PROPER PROJECT TO UTILIZE WATER MADE AVAILABLE TO THE
UNITED STATES BY A 1950 TREATY WITH CANADA, CONSTITUTED FEDERAL
AUTHORIZATION FOR THE POWER AUTHORITY TO EXERCISE THE RIGHT OF EMINENT
DOMAIN, BUT ONLY IN ACCORDANCE WITH 21 OF THE FEDERAL POWER ACT, 41
STAT. 1074, 16 U.S.C 814, WHICH PERMITS THE ACQUISITION OF SITES FOR
THE PURPOSE OF DEVELOPING WATERWAYS BY THE EXERCISE OF THE RIGHT OF
EMINENT DOMAIN IN THE FEDERAL DISTRICT COURT IN WHICH THE LAND IS
LOCATED OR IN THE STATE COURTS.  BECAUSE THE POWER AUTHORITY HAD
PROCEEDED TO APPROPRIATE A PORTION OF THE TUSCARORAS' RESERVATION LANDS
BY FILING A MAP AND OTHER DOCUMENTS PURSUANT TO PROCEDURES ESTABLISHED
BY THE STATE'S HIGHWAY LAW AND PUBLIC AUTHORITIES LAW, THOSE
PROCEEDINGS WERE VACATED AND ANNULLED.  SUBSEQUENTLY, THE POWER
AUTHORITY ABANDONED EFFORTS TO OBTAIN POSSESSION OF THE LAND BY
APPROPRATION PURSUANT TO THOSE STATUTES AND INSTEAD PROCEEDED BY
CONDEMNATION PROCEEDINGS IN THE DISTRICT COURT FOR THE WESTERN DISTRICT
OF NEW YORK.  THE TUSCARORAS PETITIOND FOR REVIEW OF THE COURT OF
APPEALS DECISION, BUT THE COURT DENIED CERTIORARI.  358 U.S. 841
(1958).  THE SUPERINTENDENT OF PUBLIC WORKS OF THE STATE OF NEW YORK
SIMULTANEOUSLY APPEALED FROM IT UNDER 28 U.S.C. 1254(2), AND THE COURT,
ON THE TUSCARORAS' SUBSEQUENT SUGGESTION OF MOOTNESS, WHICH THE POWER
AUTHORITY SUPPORTED AND THE SUPERINTENDENT CONTINUED TO OPPOSE, AND
WHICH WAS BASED ON THE POWER AUTHORITY'S ABANDONMENT OF ITS
APPROPRIATION PROCEEDINGS IN FAVOR OF THE CONDEMNATION SUIT, VACATED
THE COURT OF APPEALS'  JUDGMENT AND REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO DISMISS THE COMPLAINT AS MOOT.  362 U.S. 608 (1960).  SEE
RECORDS AND BRIEFS IN NO. 384, O. T. 1958; RECORDS AND BRIEFS IN NO. 4,
O. T. 1959. 

/10/  SEE, E.G., GOLD-WASHING & WATER CO. V. KEYES, 96 U.S. 199
(1878); FLORIDA C. & P. R. CO. V. BELL, 176 U.S. 321 (1900); FILHIOL V.
MAURICE, 185 U.S. 108 (1902); FILHIOL V. TORNEY, 194 U.S. 356 (1904);
JOY V. CITY OF ST. LOUIS, 201 U.S. 332 (1906); WHITE V. SPARKILL REALTY
CORP., 280 U.S. 500 (1930). 

/11/  FLORIDA C. & P. R. CO. V. BELL, SUPRA, AT 328 - 329; JOY V.
CITY OF ST. LOUIS, SUPRA, AT 341 - 342. 

/12/  TENNESSEE V. UNION & PLANTERS' BANK, 152 U.S. 454, 460 (1894);
JOY V. CITY OF ST. LOUIS, SUPRA, AT 340. 

/13/  FOR BRIEF ACCOUNTS OF THE NEW YORK EXPERIENCE WITH ITS
INDIANS, SEE FEDERAL INDIAN LAW 965 - 979; GUNTHER, GOVERNMENTAL POWER
AND NEW YORK INDIAN LANDS--A REASSESSMENT OF A PERSISTENT PROBLEM OF
FEDERAL-STATE RELATIONS, 8 BUFFALO L. REV. 1 (1958); BRIEF FOR THE
WARDEN AND THE STATE OF NEW YORK, NEW YORK EX REL. RAY V. MARTIN, NO.
158, O. T. 1945, 326 U.S. 496 (1946). 

/14/  SECTION 233 PROVIDES: 

"JURISDICTION OF NEW YORK STATE COURTS IN CIVIL ACTIONS. 

"THE COURTS OF THE STATE OF NEW YORK UNDER THE LAWS OF SUCH STATE
SAHLL HAVE JURISDICTION IN CIVIL ACTIONS AND PROCEEDINGS BETWEEN
INDIANS OR BETWEEN ONE OR MORE INDIANS AND ANY OTHER PERSON OR PERSONS
TO THE SAME EXTENT AS THE COURTS OF THE STATE SHALL HAVE JURISDICTION
IN OTHER CIVIL ACTIONS AND PROCEEDINGS, AS NOW OR HEREAFTER DEFINED BY
THE LAWS OF SUCH STATE:  PROVIDED, THAT THE GOVERNING BODY OF ANY
RECOGNIZED TRIBE OF INDIANS IN THE STATE OF NEW YORK SHALL HAVE THE
RIGHT TO DECLARE, BY APPROPRIATE ENACTMENT PRIOR TO SEPTEMBER 13, 1952,
THOSE TRIBAL LAWS AND CUSTOMS WHICH THEY DESIRE TO PRESERVE, WHICH, ON
CERTIFICATION TO THE SECRETARY OF THE INTERIOR BY THE GOVERNING BODY OF
SUCH TRIBE SHALL BE PUBLISHED IN THE FEDERAL REGISTER AND THEREAFTER
SHALL GOVERN IN ALL CIVIL CASES INVOLVING RESERVATION INDIANS WHEN THE
SUBJECT MATTER OF SUCH TRIBAL LAWS AND CUSTOMS IN INVOLVED OR AT ISSUE,
BUT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO PREVENT SUCH COURTS
FROM RECOGNIZING AND GIVING EFFECT TO ANY TRIBAL LAW OR CUSTOM WHICH
MAY BE PROVEN TO THE SATISFACTION OF SUCH COURTS:  PROVIDED FURTHER,
THAT NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE ANY SUCH
TRIBE OR THE MEMBERS THEREOF TO OBTAIN FISH AND GAME LICENSES FROM THE
STATE OF NEW YORK FOR THE EXERCISE OF ANY HUNTING AND FISHING RIGHTS
PROVIDED FOR SUCH INDIANS UNDER ANY AGREEMENT, TREATY, OR CUSTOM:
PROVIDED FURTHER, THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS
SUBJECTING THE LANDS WITHIN ANY INDIAN RESERVATION IN THE STATE OF NEW
YORK TO TAXATION FOR STATE OR LOCAL PURPOSES, NOR AS SUBJECTING ANY
SUCH LANDS, OR ANY FEDERAL OR STATE ANNUITY IN FAVOR OF INDIANS OR
INDIAN TRIBES, TO EXECUTION ON ANY JUDGMENT RENDERED IN THE STATE
COURTS, EXCEPT IN THE ENFORCEMENT OF A JUDGMENT IN A SUIT BY ONE TRIBAL
MEMBER AGAINST ANOTHER IN THE MATTER OF THE USE OR POSSESSION OF LAND:
AND PROVIDED FURTHER, THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED
AS AUTHORIZING THE ALIENATION FROM ANY INDIAN NATION, TRIBE, OR BAND OF
INDIANS OF ANY LANDS WITHIN ANY INDIAN RESERVATION IN THE STATE OF NEW
YORK:  PROVIDED FURTHER, THAT NOTHING HEREIN CONTAINED SHALL BE
CONSTRUED AS CONFERRING JURISDICTION ON THE COURTS OF THE STATE OF NEW
YORK OR MAKING APPLICABLE THE LAWS OF THE STATE OF NEW YORK IN CIVIL
ACTIONS INVOLVING INDIAN LANDS OR CLAIMS WITH RESPECT THERETO WHICH
RELATE TO TRANSACTIONS OR EVENTS TRANSPIRING PRIOR TO SEPTEMBER 13,
1952." 

/15/  "THE TEXT AND HISTORY OF THE NEW LEGISLATION ARE REPLETE WITH
INDICATIONS THAT CONGRESSIONAL CONSENT IS NECESSARY TO VALIDATE THE
EXERCISE OF STATE POWER OFER TRIBAL INDIANS AND, MOST SIGNIFICANTLY,
THAT NEW YORK CANNOT UNILATERALLY DEPRIVE INDIANS OF THEIR TRIBAL LANDS
OR AUTHORIZE SUCH DEPRIVATIONS.  THE CIVIL JURISDICTION LAW, TO MAKE
ASSURANCE DOUBLY SURE, CONTAINS A PROVISO THAT EXPLICITLY EXEMPTS
RESERVATIONS FROM STATE AND LOCAL TAXATION AND THAT NEGATIVES ANY
AUTHORIZATION OF 'THE ALIENATION FROM ANY INDIAN NATION, TRIBE, OR BAND
OF INDIANS OF ANY LAND WITHIN ANY INDIAN RESERVATION IN THE STATE OF
NEW YORK.'  THE SENATE COMMITTEE'S REPORT ON THAT LAW EMPHASIZES THAT
'STATE LAW DOES NOT APPLY TO INDIANS EXCEPT SO FAR AS THE UNITED STATES
HAS GIVEN ITS CONSENT'  AND POINTS OUT THAT THE LAW PROVIDES THAT 'NO
LANDS WITHIN ANY RESERVATION BE ALIENATED.'  DURING THE CONGRESSIONAL
HEARINGS, MOST INDIAN LEADERS CONTINUED TO OPPOSE THE BILLS, PARTLY
BECAUSE OF FEAR OF STATE ATTEMPTS TO DEPRIVE THEM OF THEIR
RESERVATIONS, DESPITE THE NEW YORK JOINT COMMITTEE'S REPEATED
ASSURANCES.  ACCORDINGLY, NEW YORK'S REPRESENTATIVES ONCE MORE
DISAVOWED ANY INTENTION TO BREAK UP THE RESERVATIONS AND, MORE CLEARLY
THAN SOME STATE OFFICIALS IN THE HISTORY OF THE CONTROVERSY, DISCLAIMED
ANY STATE POWER TO DO SO.  MOREOVER, BOTH FEDERAL AND STATE OFFICIALS
AGREED THAT THE BILLS WOULD RETAIN ULTIMATE FEDERAL POWER OVER THE
INDIANS AND THAT FEDERAL GUARDIANSHIP, PARTICULARLY WITH RESPECT TO
PROPERTY RIGHTS, WOULD CONTINUE."  GUNTHER, SUPRA, N. 13, 8 BUFFALO L.
REV., AT 16.  (FOOTNOTES OMITTED.) 

/16/  BECAUSE OF OUR DETERMINATION THAT THE COMPLAINT STATES A
CONTROVERSY ARISING UNDER THE LAWS OF THE UNITED STATES SUFFICIENT TO
INVOKE THE JURISDICTION OF THE DISTRICT COURT UNDER 1331 AND 1362, IN
ACCORDANCE WITH PRIOR DECISIONS OF THIS COURT, WE HAVE NO OCCASION TO
ADDRESS AND DO NOT REACH THE CONTENTION PRESSED BY PETITIONERS THAT THE
CONGRESS, IN ENACTING 1362 IN 1966, 80 STAT. 880, INTENDED TO EXPAND
THE SCOPE OF "ARISING UNDER"  JURISDICTION IN THE DISTRICT COURTS,
BEYOND WHAT JUDICIAL INTERPRETATIONS OF THAT LANGUAGE HAVE ALLOWED
UNDER 1331, FOR THAT CATEGORY OF SUITS BROUGHT BY INDIAN TRIBES, IN
ADDITION TO ELIMINATING THE AMOUNT IN CONTROVERSY REQUIREMENT WHEN
INDIAN TRIBES SUE.     MR. JUSTICE REHNQUIST, WITH WHOM MR. JUSTICE
POWELL JOINS, CONCURRING. 

THE MAJORITY OPINION PRESUASIVELY DEMONSTRATES THAT THE PLAINTIFFS'
RIGHTS TO POSSESSION IN THIS CASE WAS AND IS ROOTED FIRMLY IN FEDERAL
LAW.  THUS, I AGREE THAT THIS IS NOT A CASE WHICH DEPENDS FOR ITS
FEDERAL CHARACTER SOLELY ON POSSIBLE FEDERAL DEFENSES OR ON EXPECTED
RESPONSES TO POSSIBLE DEFENSES.  I ALSO AGREE THAT THE MAJORITY
DECISION IS CONSISTENT WITH OUR DECISION IN GULLY V. FIRST NATIONAL
BANK, 299 U.S. 109 (1936).  HOWEVER, I THINK IT WORTHWHILE TO ADD A
BRIEF CONCURRENCE TO EMPHASIZE THAT THE MAJORITY OPINION DOES NOT
DISTURB THE LONG LINE OF THIS COURT'S CASES NARROWLY APPLYING THE
PRINCIPLES OF 28 U.S.C. 1331 AND THE WELL-PLEADED COMPLAINT RULE TO
POSSESSORY LAND ACTIONS BROUGHT IN FEDERAL COURT. 

AS THE MAJORITY SEEMS WILLING TO ACCEPT, THE COMPLAINT IN THIS
ACTION IS BASICALLY ONE IN EJECTMENT.  PLAINTIFFS ARE OUT OF
POSSESSION; THE DEFENDANTS ARE IN POSSESION, ALLEGEDLY WRONGFULLY; AND
THE PLAINTIFFS CLAIM DAMAGES BECAUSE OF THE ALLEGEDLY WRONGFUL
POSSESSION.  THESE ALLEGATIONS APPEAR TO MEET THE PLEADING REQUIREMENTS
FOR AN EJECTMENT ACTION AS STATED IN TAYLOR V. ANDERSON, 234 U.S. 74
(1914).  THUS THE COMPLAINT MUST BE JUDGED ACCORDING TO THE RULES
APPLICABLE TO SUCH CASES. 

THE FEDERAL COURTS HAVE TRADITIONALLY BEEN INHOSPITABLE FORUMS FOR
PLAINTIFFS ASSERTING FEDERAL-QUESTION JURISDICTION OF POSSESSORY LAND
CLAIMS.  THE NARROW VIEW OF THE SCOPE OF FEDERAL-QUESTION JURISDICTION
TAKEN BY THE FEDERAL COURTS IN SUCH CASES PROBABLY REFLECTS A
RECOGNITION THAT FEDERAL ISSUES WERE SELDOM APT TO BE DISPOSITIVE OF
THE LAWSUIT.  COMMONLY, THE GRANT OF A LAND PATENT TO A PRIVATE PARTY
CARRIES WITH IT NO GUARANTEE OF CONTINUING FEDERAL INTEREST AND
CERTAINLY CARRIES WITH IT NO INDEFINITELY REDEEMABLE PASSPORT INTO
FEDERAL COURT.  ON THE CONTRARY, AS THE MAJORITY POINTS OUT, THE LAND
THUS CONVEYED WAS GENERALLY SUBJECT TO STATE LAW THEREAFTER. 

THUS, THIS COURT'S DECISIONS HAVE ESTABLISHED A STRICT RULE THAT
MERE ALLEGATION OF A FEDERAL SOURCE OF TITLE DOES NOT CONVERT AN
ORDINARY EJECTMENT ACTION INTO A FEDERAL CASE.  AS THE COURT NOTED IN
SHOSHONE MINING CO. V. RUTTER, 177 U.S. 505, 507 (1900), "A SUIT TO
ENFORCE A RIGHT WHICH TAKES ITS ORIGIN IN THE LAWS OF THE UNITED STATES
IS NOT NECESSARILY ONE ARISING UNDER THE CONSTITUTION OF LAWS OF THE
UNITED STATES, WITHIN THE MEANING OF THE JURISDICTION CLAUSES, FOR IF
IT DID EVERY ACTION TO ESTABLISH TITLE TO REAL ESTATE (AT LEAST IN THE
NEWER STATES) WOULD BE SUCH A ONE, AS ALL TITLES IN THOSE STATES COME
FROM THE UNITED STATES OR BY VIRTUE OF ITS LAWS."  THIS RULE WAS EVEN
APPLIED TO CASES IN WHICH LAND GRANTS TO INDIANS, SUBJECT TO LIMITED
RESTRICTIONS ON ALIENATION, WERE INVOLVED.  SEE TAYLOR, SUPRA. 

THE MAJORITY TODAY FINDS THIS STRICT RULE INAPPLICABLE TO THIS CASE,
AND FOR GOOD REASON.  IN CONTRAST TO THE TYPICAL INSTANCE IN WHICH THE
FEDERAL GOVERNMENT CONVEYS LAND TO A PRIVATE ENTITY, THE GOVERNMENT, BY
TRANSFERRING LAND RIGHTS TO INDIAN TRIBES, HAS NOT PLACED THE LAND
BEYOND FEDERAL SUPERVISION.  RATHER THE FEDERAL GOVERNMENT HAS SHOWN A
CONTINUING SOLICITUDE FOR THE RIGHTS OF THE INDIANS IN THEIR LAND.  THE
NONINTERCOURSE ACT OF 1790 MANIFESTS THIS CONCERN IN STATUTORY FORM. 
THUS, THE INDIANS' RIGHT TO POSSESSION IN THIS CASE IS BASED NOT SOLELY
ON THE ORIGINAL GRANT OF RIGHTS IN THE LAND BUT ALSO UPON THE FEDERAL
GOVERNMENT'S SUBSEQUENT GUARANTEE.  THEIR CLAIM IS CLEARLY
DISTINGUISHABLE FROM THE CLAIMS OF LAND GRANTEES FOR WHOM THE FEDERAL
GOVERNMENT HAS TAKEN NO SUCH RESPONSIBILITY. 

THIS OPINION FOR THE COURT TODAY SHOULD GIVE NO COMFORT TO PERSONS
WITH GARDEN-VARIETY EJECTMENT CLAIMS WHO, FOR ONE REASON OR ANOTHER,
ARE COVETOUSLY EYEING THE DOOR TO THE FEDERAL COURTHOUSE.  THE GENERAL
STANDARDS FOR DETERMINING FEDERAL JURISDICTION, AND IN PARTICULAR THE
STANDARDS FOR EVALUATING COMPLIANCE WITH THE WELL-PLEADED COMPLAINT
RULE, WILL RETAIN THEIR TRADITIONAL VIGOR TOMORROW AS TODAY. 

GEORGE C. SHATTUCK ARGUED THE CAUSE AND FILED A BRIEF FOR

PETITIONERS. 

WILLIAM L. BURKE ARGUED THE CAUSE FOR RESPONDENTS AND FILED A BRIEF
FOR RESPONDENT COUNTY OF MADISON.  RAYMOND M. DURR FILED A BRIEF FOR
RESPONDENT COUNTY OF ONEIDA. 

JERMIAH JOCHNOWITZ, ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE FOR
THE STATE OF NEW YORK AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON
THE BRIEF WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, AND RUTH KESSLER
TOCH, SOLICITOR GENERAL.  /1/ 

/1/  ARTHUR LAZARUS, JR., FILED A BRIEF FOR THE ASSOCIATION ON
AMERICAN INDIAN AFFAIRS, INC., ET AL. AS AMICI CURIAE URGING REVERSAL. 

..END :















SNIDER V. ALL STATE ADMINISTRATORS, 414 U.S. 685 


       ON MOTION TO DISPENSE WITH PRINTING THE PETITION FOR WRIT OF

           CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

NO. 73 - 731.  DECIDED JANUARY 21, 1974; MOTION DENIED; SEE

          481 F.2D 387. 


    MOTION TO DISPENSE WITH PRINTING PETITION FOR CERTIORARI AS

  REQUIRED BY THIS COURT'S RULE 39, WHICH MOTION IS SUPPORTED BY

  ONLY GENERALIZED ALLEGATIONS OF INABILITY TO AFFORD PAYMENT OF

  COSTS OF PRINTING (AS THAT TERM IS DEFINED IN THE RULE) BUT THAT

  DOES NOT COMPLY WITH RULE 53 GOVERNING IN FORMA PAUPERIS

  PROCEEDINGS, IS DISFAVORED, THE COURT NOT BEING DISPOSED TO WAIVE

  THE FUNCTIONAL STANDARDS ESTABLISHED BY RULE 39. 

PER CURIAM. 

PETITIONER SNIDER HAS FILED A MOTION TO DISPENSE WITH THE PRINTING
OF THE PETITION FOR CERTIORARI AS REQUIRED BY OUR RULE 39.  HE HAS
FILED NO MOTION AND AFFIDAVIT IN CONFORMITY WITH OUR RULE 53, DEALING
WITH PROCEEDINGS IN FORMA PAUPERIS.  WHILE WE UNDOUBTEDLY HAVE
AUTHORITY TO WAIVE THE APPLICATION OF PARTICULAR RULES IN APPROPRIATE
CIRCUMSTANCES, WE HAVE DURING THIS TERM DENIED A CONSIDERABLE NUMBER OF
SIMILAR MOTIONS.  /1/  TYPICALLY IN EACH OF THESE CASES THE MOVING
PETITIONER MADE GENERALIZED ALLEGATIONS OF INABILITY TO AFFORD PAYMENT
OF PRINTING COSTS, BUT MADE NO SHOWING SUFFICIENT TO COMPLY WITH RULE
53 GOVERNING PROCEEDINGS IN FORMA PAUPERIS.  MOTIONS SUCH AS THESE ARE
DISFAVORED, AND PETITIONER'S MOTION IS DENIED. 

RULE 39, ENTITLED "FORM OF APPENDICES, PETITIONS, BRIEFS, ETC.,"
CONTAINS THE FOLLOWING DEFINITION: 

     "PRINTING, AS THE TERM IS USED IN THESE RULES, SHALL INCLUDE

  ANY PROCESS CAPABLE OF PRODUCING A CLEAR BLACK IMAGE ON WHITE

PAPER BUT SHALL NOT INCLUDE ORDINARY CARBON COPIES.  IF PAPERS

  ARE FILED IN A FORM WHICH IS NOT CLEARLY LEGIBLE, THE CLERK WILL

  REQUIRE THAT NEW COPIES BE SUBSTITUTED, BUT THE FILING SHALL NOT

  THEREBY BE DEEMED UNTIMELY." 

WE THINK IT IS CLEAR FROM THIS DEFINITION, AND FROM THE OTHER PARTS
OF RULE 39, THAT DOCUMENTS GOVERNED BY RULE 39 NEED NOT HAVE BEEN
IMPRINTED ON A PRESS IN ORDER TO COMPLY WITH ITS TERMS.  THEY ARE
REQUIRED TO BE THE PRODUCT OF A PROCESS "CAPABLE OF PRODUCING A CLEAR
BLACK IMAGE ON WHITE PAPER," AND TO CONFORM TO THE PAPER-SIZE, BINDING,
AND TYPE-SIZE REQUIREMENTS ALSO SET FORTH IN THE RULE.  THE RULE IS
THUS FUNCTIONAL IN NATURE, AND IS DESIGNED TO ASSURE THE COURT THAT
APPENDICES, PETITIONS, BRIEFS, AND THE LIKE WHICH ARE SUBJECT TO ITS
PROVISIONS WILL BE OF UNIFORM SIZE AND GOOD LEGIBILITY.  WE ARE NOT
DISPOSED TO WAIVE THESE STANDARDS. 

IN FUTURE CASES, THE CLERK WILL BE INSTRUCTED NOT TO ACCEPT FOR
RECORD A PETITION FOR CERTIORARI OR OTHER DOCUMENT WHICH IS SUBJECT TO
RULE 39 AND FAILS TO CONFORM TO THE REQUIREMENTS OF THAT RULE, AND TO
SUBMIT ONLY THE MOTION TO DISPENSE WITH PRINTING TO THE COURT FOR
DECISION.  IN THE EVENT SUCH MOTION IS DENIED, THE PETITION OR OTHER
DOCUMENT WILL BE RETURNED TO THE PARTY SEEKING TO FILE IT AT THE TIME
THE ORDER OF DENIAL IS ENTERED. 

PETITIONER'S MOTION TO DISPENSE WITH PRINTING THE PETITION FOR
CERTIORARI IN THIS CASE IS DENIED.  BECAUSE OUR VIEW AS TO THE PROBABLE
FATE OF MOTIONS SUCH AS HIS MAY NOT HERETOFORE HAVE BEEN APPARENT TO
THE BAR, HE IS GRANTED 21 DAYS FROM THE ENTRY OF THIS ORDER IN WHICH TO
FILE A PETITION WHICH CONFORMS TO RULE 39. 

/1/  SEE, E.G., WALLACE V. SMITH, NO. 73 - 40, MOTION DENIED OCTOBER
15, 1973, POST, P. 907; BROCCOLINO V. MARYLAND COMM'N ON JUDICIAL
DISABILITIES, NO. 73 - 431, MOTION DENIED NOVEMBER 19, 1973, POST, P.
1038; CHIPPAS V. UNITED STATES, NO. 73 - 761, MOTION DENIED DECEMBER
17, 1973, POST, P. 1109.  SEE ALSO MORTON V. MANCARI, NO. 73 - 362,
MOTION TO DISPENSE WITH PRINTING THE MOTION TO DISMISS OR AFFIRM DENIED
JANUARY 14, 1974, POST, P. 1142. 
..END :







O'BRIEN V. SKINNER, 414 U.S. 524 


       APPEAL FROM THE COURT OF APPEALS OF NEW YORK

    NO. 72 - 1058.  ARGUED NOVEMBER 6, 1973--DECIDED JANUARY 16,

           1974; 31 N.Y. 2D 317, 291 N.E. 2D 134, REVERSED AND

           REMANDED. 


    APPELLANTS, WHO ARE INCARCERATED IN JAIL AS CONVICTED

  MISDEMEANANTS OR PRETRIAL DETAINEES UNABLE TO MAKE BAIL BUT WHO

  ARE UNDER NO VOTING DISABILITY UNDER STATE LAW, AND WHO REQUESTED

  BUT WERE DENIED THE RIGHT TO REGISTER AND VOTE UNDER MOBILE

  REGISTRATION, ABSENTEE VOTING, OR OTHER PROCEDURES, BROUGHT THIS

  ACTION CHALLENGING THE CONSTITUTIONALITY OF THE NEW YORK ELECTION

  LAWS.  THE CONTESTED STATUTES ALLOW QUALIFIED PERSONS TO REGISTER

  AND VOTE BY ABSENTEE MEASURES IF PRECLUDED FROM PERSONALLY DOING

 SO BECAUSE OF ILLNESS, PHYSICAL DISABILITY, THEIR DUTIES,

  OCCUPATION, OF BUSINESS, AND PERMIT ABSENTEE VOTING (BUT NOT

  REGISTRATION) IF THE VOTERS ARE VACATIONING AWAY FROM THEIR

  RESIDENCE ON ELECTION DAY OR ARE CONFINED IN A VETERANS'

  HOSPITAL.  THE STATE TRIAL AND INTERMEDIATE APPELLATE COURTS

  INITIALLY VIEWED APPELLANTS' CONFINEMENT AS PHYSICAL DISABILITY

  AND HELD THAT THEY WERE ENTITLED TO VOTE BY ABSENTEE BALLOT.  THE

  NEW YORK COURT OF APPEALS REVERSED THAT DETERMINATION, CONCLUDING

  THAT THE DISABILITY IMPOSED BY INCARCERATION DID NOT COME WITHIN

  THE TERMS OF THE STATUTE.  HELD:  THE CHALLENGED PROVISIONS AS

THUS CONSTRUED, WHICH RAISE NO QUESTION OF DISENFRANCHISEMENT OF

  PERSONS CONVICTED OF CRIMINAL CONDUCT AND PERMIT INCARCERATED

  PERSONS TO REGISTER AND VOTE BY ABSENTEE MEANS IF CONFINED IN A

  COUNTY WHERE THEY ARE NOT RESIDENTS, VIOLATE THE EQUAL PROTECTION

  CLAUSE OF THE FOURTEENTH AMENDMENT, AS THEY ARBITRARILY

  DISCRIMINATE BETWEEN CATEGORIES OF QUALIFIED VOTERS.  PP. 528 -

  531. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, STEWART, WHITE, MARSHALL, AND POWELL, JJ., JOINED.  MARSHALL,
J., FILED A CONCURRING OPINION, IN WHICH DOUGLAS AND BRENNAN, JJ.,
JOINED, POST, P. 531.  BLACKMUN, J., FILED A DISSENTING OPINION, IN
WHICH REHNQUIST, J., JOINED, POST, P. 535. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE JUDGMENT OF THE COURT OF APPEALS OF NEW
YORK TAKEN BY 72 PERSONS WHO WERE AT THE TIME OF THE TRIAL OF THE
ORIGINAL ACTION, DETAINED IN CONFINEMENT.  SOME ARE SIMPLY DETAINED
AWAITING TRIAL, OTHERS ARE CONFINED PURSUANT TO MISDEMEANOR
CONVICTIONS; NONE IS SUBJECT TO ANY VOTING DISABILITY UNDER THE LAWS OF
NEW YORK. 

THE COURT OF APPEALS OF NEW YORK, /1/  BY DIVIDED VOTE, HELD THAT
FAILURE OF THE STATE TO PROVIDE APPELLANTS WITH ANY MEANS OF
REGISTERING AND VOTING WAS NOT A VIOLATION OF THE NEW YORK STATUTES AND
NOT A DENIAL OF ANY FEDERAL OR STATE CONSTITUTIONAL RIGHT. 

BEFORE THE NOVEMBER 1972 GENERAL ELECTIONS IN NEW YORK, THE
APPELLANTS APPLIED TO THE AUTHORITIES OF MONROE COUNTY, INCLUDING THE
BOARD OF ELECTIONS, TO ESTABLISH A MOBILE VOTERS REGISTRATION UNIT IN
THE COUNTY JAIL IN COMPLIANCE WITH A MOBILE REGISTRATION PROCEDURE
WHICH HAS BEEN EMPLOYED IN SOME COUNTY JAILS IN NEW YORK STATE.  THIS
REQUEST WAS DENIED AND APPELLANTS THEN REQUESTED THAT THEY BE EITHER
TRANSPORTED TO POLLING PLACES UNDER APPROPRIATE RESTRICTIONS OR, IN THE
ALTERNATIVE, THAT THEY BE PERMITTED TO REGISTER AND VOTE UNDER NEW
YORK'S ABSENTEE VOTING PROVISIONS WHICH, ESSENTIALLY, PROVIDE THAT
QUALIFIED VOTERS ARE ALLOWED TO REGISTER AND VOTE BY ABSENTEE MEASURES
IF THEY ARE UNABLE TO APPEAR PERSONALLY BECAUSE OF ILLNESS OR PHYSICIAL
DISABILITY, OR BECAUSE OF THEIR "DUTIES, OCCUPATION OR BUSINESS."  THE
STATUTES ALSO ALLOW ABSENTEE VOTING, BUT NOT REGISTRATION, IF THE VOTER
IS AWAY FROM HIS RESIDENCE ON ELECTION DAY BECAUSE HE IS CONFINED IN A
VETERANS' HOSPITAL OR IS AWAY ON VACATION.  /2/  THE ELECTION
AUTHORITIES DENIED THE REQUEST, TAKING THE POSITION THAT THEY WERE
UNDER NO OBLIGATION TO PERMIT THE APPELLANTS TO REGISTER OR TO VOTE IN
PERSON AND THAT INMATES DID NOT QUALIFY FOR ABSENTEE VOTING UNDER THE
PROVISIONS OF THE NEW YORK STATUTES. 

THE SUPREME COURT FOR MONROE COUNTY IN NEW YORK CONSIDERED THE
CLAIMS PRESENTED BY THE APPELLANTS AND TREATED THEM AS A PROCEEDING TIN
THE NATURE OF MANDAMUS.  THE CONCLUSION REACHED BY THAT COURT WAS THAT
THE LEGISLATURE OF NEW YORK HAD PROVIDED FOR ABSENTEE REGISTRATION AND
VOTING BY ANY VOTER UNABLE TO APPEAR PERSONALLY BECAUSE OF CONFINEMENT
IN AN INSTITUTION (OTHER THAN A MENTAL INSTITUTION).  THE COURT
CONCLUDED THAT THE ELECTION LAWS SHOULD BE CONSTRUED TO APPLY TO AN
INMATE CONFINED IN JAIL AND NOT OTHERWISE DISENFRANCHISED SINCE THIS
CONSTITUTED A "PHYSICAL DISABILITY" IN THE SENSE THAT HE WAS PHYSICALLY
DISABLED FROM LEAVING HIS CONFINEMENT TO GO TO THE POLLS TO VOTE, AND
THAT THE STATUTE THEREFORE ENTITLED SUCH PERSONS TO VOTE BY ABSENTEE
BALLOT.  HOWEVER, THE COURT NOTED THAT THERE WAS NO SHOWING THAT ANY OF
THE PERSONS CLAIMING THESE RIGHTS HAD TIMELY FILED ALL THE NECESSARY
FORMS BUT THAT THIS COULD YET BE ACCOMPLISHED IN TIME FOR VOTING BY
ABSENTEE BALLOT IN NOVEMBER 1972.  THE APPELLATE DIVISION OF THE FOURTH
JUDICIAL DEPARTMENT OF THE SUPREME COURT OF NEW YORK ON REVIEW GAVE A
SIMILAR CONSTRUCTION TO THE ELECTION LAWS, STATING: 

     "WE BELIEVE THAT PETITIONERS, BEING SO CONFINED, ARE
PHYSICALLY

  DISABLED FROM VOTING AND SHOULD BE PERMITTED TO DO SO BY CASTING

ABSENTEE BALLOTS."  40 APP. DIV. 2D 942, 337 N.Y.S. 2D 700

  (1972). 

ON APPEAL TO THE NEW YORK COURT OF APPEALS, HOWEVER, THESE HOLDINGS
WERE REVERSED, THAT COURT STATING: 

   "THE RIGHT TO VOTE DOES NOT PROTECT OR INSURE AGAINST THOSE

  CIRCUMSTANCES WHICH RENDER VOTING IMPRACTICABLE.  THE FACT OF

  INCARCERATION IMPOSES MANY OTHER DISABILITIES, SOME PRIVATE,

  OTHERS PUBLIC, OF WHICH VOTING IS ONLY ONE.  UNDER THE

  CIRCUMSTANCES, AND IN VIEW OF THE LEGISLATURE'S FAILURE TO EXTEND

  THESE ABSENTEE PROVISIONS TO OTHERS SIMILARLY DISADVANTAGED, IT

  HARDLY SEEMS PLAUSIBLE THAT PETITIONERS' RIGHT TO VOTE HAS BEEN

  ARBITRARILY DENIED THEM.  IT IS ENOUGH THAT THESE HANDICAPS,

  THEN, ARE FUNCTIONS OF ATTENDANT IMPRACTICALITIES OR

  CONTINGENCIES, NOT LEGAL DESIGN."  31 N.Y. 2D 317, 320 - 321, 291

  N.E. 2D 134, 136 - 137. 

JUDGE FULD DISSENTED, BEING OF THE VIEW THAT 117 - A AND 153 - A OF
THE ELECTION LAW OF NEW YORK SHOULD BE READ IN THE MANNER ANNOUNCED BY
THE APPELLATE DIVISION.  JUDGE BURKE, JOINING JUDGE FULD, AGREED,
STATING ADDITIONALLY THAT ANY CONSTRUCTION OF THE ELECTION LAW
PRECLUDING APPELLANTS FROM EXERCISION THEIR RIGHT TO REGISTER AND VOTE
VIOLATED THE EQUAL PROTECTION GUARANTEES OF THE FOURTEENTH AMENDMENT. 

IT IS IMPORTANT TO NOTE AT THE OUTSET THAT THE NEW YORK ELECTION
LAWS HERE IN QUESTION DO NOT RAISE ANY QUESTION OF DISENFRANCHISEMENT
OF A PERSON BECAUSE OF CONVICTION FOR CRIMINAL CONDUCT.  AS WE NOTED
EARLIER, THESE APPELLANTS ARE NOT DISABLED FROM VOTING EXCEPT BY REASON
OF NOT BEING ABLE PHYSICALLY--IN THE VERY LITERAL SENSE--TO GO TO THE
POLLS ON ELECTION DAY OR TO MAKE THE APPROPRIATE REGISTRATION IN
ADVANCE BY MAIL.  THE NEW YORK STATUTES ARE SILENT CONCERNING
REGISTRATION OR VOTING FACILITIES IN JAILS AND PENAL INSTITUTIONS,
EXCEPT AS THEY PROVIDE FOR ABSENTEE BALLOTING.  IF A NEW YORK RESIDENT
ELIGIBLE TO VOTE IS CONFINED IN A COUNTY FAIL IN A COUNTY IN WHICH HE
DOES NOT RESIDE, PARADOXICALLY, HE MAY SECURE AN ABSENTEE BALLOT AND
VOTE AND HE MAY ALSO REGISTER BY MAIL, PRESUMABLY BECAUSE HE IS
"UNAVOIDABLY ABSENT FROM THE COUNTY OF HIS RESIDENCE."  N.Y. ELECTION
LAW 117(1)(B) (1964).  /3/ 

THUS, UNDER THE NEW YORK STATUTES, TWO CITIZENS AWAITING TRIAL--OR
EVEN AWAITING A DECISION WHETHER THEY ARE TO BE CHARGED--SITTING SIDE
BY SIDE IN THE SAME CELL, MAY RECEIVE DIFFERENT TREATMENT AS TO VOTING
RIGHTS.  AS WE HAVE NOTED, IF THE CITIZEN IS CONFINED IN THE COUNTY OF
HIS LEGAL RESIDENCE HE CANNOT VOTE BY ABSENTEE BALLOT AS CAN HIS
CELLMATE WHOSE RESIDENCE IS IN THE ADJOINING COUNTY.  ALTHOUGH NEITHER
IS UNDER ANY LEGAL BAR TO VOTING, ONE OF THEM CAN VOTE BY ABSENTEE
BALLOT AND THE OTHER CANNOT. 

THIS COURT HAD OCCASION TO EXAMINE CLAIMS SIMILAR TO THOSE PRESENTED
HERE IN MCDONALD V. BOARD OF ELECTION COMM'RS, 394 U.S. 802 (1969). 
THERE A STATE STATUTE PROVIDED FOR ABSENTEE VOTING BY PERSONS
"MEDICALLY INCAPACITATED"  AND FOR PRETRIAL DETAINEES WHO WERE
INCARCERATED OUTSIDE THEIR COUNTY OF RESIDENCE.  UNLIKE THE PRESENT
CASE, HOWEVER, IN MCDONALD "THERE (WAS) NOTHING IN THE RECORD TO SHOW
THAT APPELLANTS (WERE) IN FACT ABSOLUTELY PROHIBITED FROM VOTING BY THE
STATE...," ID., AT 808 N. 7, SINCE THERE WAS THE POSSIBILITY THAT THE
STATE MIGHT FURNISH SOME OTHER ALTERNATIVE MEANS OF VOTING, ID., AT
808.  ESSENTIALLY THE COURT'S DISPOSITION OF THE CLAIMS IN MCDONALD
RESTED ON FAILURE OF PROOF. 

MORE RECENTLY IN GOOSBY V. OSSER, 409 U.S. 512 (1973), THE COURT
AGAIN CONSIDERED THE PROBLEM OF INMATE VOTING AND CONCLUDED THAT,
UNLIKE THE VOTING RESTRICTIONS IN THE MCDONALD CASE, THE STATUTE THERE
IN QUESTION WAS AN ABSOLUTE BAR TO VOTING BECAUSE OF A SPECIFIC
PROVISION THAT "PERSONS CONFINED IN A PENAL INSTITUTION" WERE NOT
PERMITTED TO VOTE BY ABSENTEE BALLOT.  IT IS CLEAR, THEREFORE, THAT THE
APPELLANTS HERE, LIKE THE PETITIONERS IN GOOSBY, BRING THEMSELVES
WITHIN THE PRECISE FACT STRUCTURE THAT THE MCDONALD HOLDING
FORESHADOWED. 

NEW YORK'S ELECTION STATUTES, AS CONSTRUED BY ITS HIGHEST COURT,
DISCTIMINATE BETWEEN CATEGORIES OF QUALIFIED VOTERS IN A WAY THAT, AS
APPLIED TO PRETRIAL DETAINEES AND MISDEMEANANTS, IS WHOLLY ARBITRARY. 
AS WE HAVE NOTED, NEW YORK EXTENDS ABSENTEE REGISTRATION PRIVILEGES TO
ELIGIBLE CITIZENS WHO ARE UNABLE TO APPEAR PERSONALLY BECAUSE OF
"ILLNESS OR PHYSICAL DISABILITY," AND TO CITIZENS REQUIRED TO BE
OUTSIDE THEIR COUNTIES OF RESIDENCE ON NORMAL REGISTRATION DAYS BECAUSE
OF THEIR "DUTIES, OCCUPATION OR BUSINESS."  IN ADDITION, NEW YORK
EXTENDS ABSENTEE VOTING PRIVILEGES TO THOSE VOTERS UNABLE TO GET TO THE
POLLS BECAUSE OF ILLNESS OR PHYSICAL DISABILITY, TO THOSE WHO ARE
INMATES OF VETERANS' BUREAU HOSPITALS, AND TO THOSE WHO ARE ABSENT FROM
THEIR HOME COUNTY ON ELECTION DAY EITHER BECAUSE OF "DUTIES, OCCUPATION
OR BUSINESS" OR VACATION.  INDEED, THOSE HELD IN JAIL AWAITING TRIAL IN
A COUNTY OTHER THAN THEIR RESIDENCE ARE ALSO PERMITTED TO REGISTER BY
MAIL AND VOTE BY ABSENTEE BALLOT.  YET, PERSONS CONFINED FOR THE SAME
REASON IN THE COUNTY OF THEIR RESIDENCE ARE COMPLETELY DENIED THE
BALLOT.  THE NEW YORK STATUTES, AS CONSTRUED, OPERATE AS A RESTRICTION
WHICH IS "SO SEVERE AS ITSELF TO CONSTITUTE AN UNCONSTITUTIONALLY
ONEROUS BURDEN ON THE ... EXERCISE OF THE FRANCHISE."  ROSARIO V.
ROCKEFELLER, 410 U.S. 752, 760 (1973).  APPELLANTS AND OTHERS SIMILARLY
SITUATED ARE, AS WE HAVE NOTED, UNDER NO LEGAL DISABILITY IMPEDING
THEIR LEGAL RIGHT TO REGISTER OR TO VOTE; THEY ARE SIMPLY NOT ALLOWED
TO USE THE ABSENTEE BALLOT AND ARE DENIED ANY ATERNATIVE MEANS OF
CASTING THEIR VOTE ALTHOUGH THEY ARE LEGALLY QUALIFIED TO VOTE. 

THE CONSTRUCTION GIVEN THE NEW YORK STATUTES BY ITS TRIAL COURT AND
THE APPELLATE DIVISION MAY WELL HAVE BEEN A REASONABLE INTERPRETATION
OF NEW YORK LAW, BUT THE HIGHEST COURT OF THE STATE HAS CONCLUDED
OTHERWISE AND IT IS NOT OUR FUNCTION TO CONSTRUE A STATE STATUTE
CONTRARY TO THE CONSTRUCTION GIVEN IT BY THE HIGHEST COURT OF A STATE. 
WE HAVE NO CHOICE, THEREFORE, BUT TO HOLD THAT, AS CONSTRUED, THE NEW
YORK STATUES DENY APPELLANTS THE EQUAL PROTECTION OF THE LAWS
GUANANTEED BY THE FOURTEENTH AMENDMENT. 

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 

/1/  31 N.Y. 2D 317, 291 N.E. 2D 134 (1972). 

/2/ AT THE TIME THIS PERMIT WAS SOUGHT; N.Y. ELECTION LAW 135 - A
(SUPP. 1971 - 1972) PROVIDED, IN PERTINENT PART: 

"1.  A VOTER RESIDING IN AN ELECTION DISTRICT IN WHICH THE
REGISTRATION IS REQUIRED TO BE PERSONAL OR IN AN ELECTION DISTRICT IN
AN COUNTY OR CITY IN WHICH PERMANENT PERSONAL REGISTRATION IS IN
EFFECT, AND WHO IS UNABLE TO APPEAR PERSONALLY FOR REGISTRATION BECAUSE
HE IS CONFINED AT HOME OR IN A HOSPITAL OR INSTITUTION, OTHER THAN A
MENTAL INSTITUTION BECAUSE OF ILLNESS OR PHYSICAL DISABILITY OR BECAUSE
HIS DUTIES, OCCUPATION OR BUSINESS REQUIRE HIM TO BE OUTSIDE THE COUNTY
OF RESIDENCE, OR IF A RESIDENT OF THE CITY OF NEW YORK, OUTSIDE SAID
CITY, ON SUCH DAYS, MAY BE REGISTERED IN THE MANNER PROVIDED BY THIS
REGISTRATION IS NOT REQUIRED MAY FILE AN APPLICATION FOR ABSENTEE
REGISTRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION AND ALSO
MAY BE REGISTERED IN THE MANNER OTHERWISE PROVIDED BY LAW." 

EFFECTIVE JANUARY 1, 1973, 153 - A WAS REPEALED, AND REPLACED BY
N.Y. ELECTION LAW 153 (SUPP. 1972 - 1973), WHICH CONTAINS SUBSTANTIALLY
IDENTICAL PROVISIONS. 

N.Y. ELECTION LAW 117 - A (1964) PROVIDES, IN PERTINENT PART: 

"1.  A QUALIFIED VOTER, WHO, ON THE OCCURENCE OF ANY GENERAL
ELECTION, MAY BE UNABLE TO APPEAR PERSONALLY AT THE POLLING PLACE OF
THE ELECTION DISTRICT IN WHICH HE IS A QUALIFIED VOTER BECAUSE OF
ILLNESS OR PHYSICAL DISABILITY, MAY ALSO VOTE AS AN ABSENTEE VOTER
UNDER THIS CHAPTER...." 

N.Y. ELECTION LAW 117 (1964) PROVIDES, IN PERTINENT PART: 

"1.  A QUALIFIED VOTER, WHO, ON THE OCCURRENCE OF ANY GENERAL
ELECTION, MAY BE-- 

"A.  UNAVOIDABLY ABSENT FROM HIS RESIDENCE BECAUSE HE IS AN INMATE
OF A VETERANS' BUREAU HOSPITAL, OR 

"B.  UNAVOIDABLY ABSENT FROM THE COUNTY OF HIS RESIDENCE, OR, IF A
RESIDENT OF THE CITY OF NEW YORK FROM SAID CITY, BECAUSE HIS DUTIES,
OCCUPATION OR BUSINESS REQUIRE HIM TO BE ELSEWHERE ON THE DAY OF
ELECTION, OR 

"C.  ABSENT FROM THE COUNTY OF HIS RESIDENCE, OR, IF A RESIDENT OF
THE CITY OF NEW YORK FROM SAID CITY, BECAUSE HE IS ON VACATION
ELSEWHERE ON THE DAY OF ELECTION, 

"MAY VOTE AS AN ABSENTEE VOTER UNDER THIS CHAPTER." 

/3/  AT ORAL ARGUMENT, COUNSEL FOR THE APPELLEES CONCEDED THAT
MONROE COUNTY ELECTION OFFICIALS HAVE INTERPRETED THE PORTIONS OF NEW
YORK ELECTION LAWS 117 AND 153 - A THAT EXTEND ABSENTEE VOTING AND
REGISTRATION PRIVILEGES TO THOSE WHOSE "DUTIES, OCCUPATION OR BUSINESS"
REQUIRE ABSENCE FROM THEIR HOME COUNTIES AS INCLUDING CONVICTED
MISDEMEANANTS AND PRETRIAL DETAINEES INCARCERATED OUTSIDE MONROE
COUNTY. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, MY ANALYSIS OF THE ISSUES
PRESENTED HERE REQUIRES FURTHER ELABORATION. 

I FULLY AGREE WITH THE COURT'S HOLDING THAT THE COURT OF APPEALS'
RELIANCE ON OUR DECISION IN MCDONALD V. BOARD OF ELECTION COMM'RS, 394
U.S. 802 (1969), WAS MISPLACED.  ALTHOUGH WE REJECTED IN MCDONALD A
CLAIM SIMILAR TO THAT PRESENTED BY APPELLANTS HERE, THE CRUX OF OUR
DECISION WAS OUR CONCLUSION THAT THE RATIONAL BASIS TEST WAS THE PROPER
STANDARD TO APPLY IN EVALUATING THE PRISONERS' EQUAL PROTECTION
CLAIMS.  WE RELIED HEAVILY IN MCDONALD ON THE FACT THAT THERE WAS NO
EVIDENCE THAT THE STATE MADE IT IMPOSSIBLE FOR THE APPELLANTS TO
EXERCISE THEIR RIGHT TO VOTE.  AS THE COURT NOTED, 

     "(THE RECORD IS BARREN OF ANY INDICATION THAT THE STATE MIGHT

 NOT, FOR INSTANCE, POSSIBLY FURNISH THE JAILS WITH SPECIAL

  POLLING BOOTHS OR FACILITIES ON ELECTION DAY, OR PROVIDE GUARDED

  TRANSPORTATION TO THE POLLS THEMSELVES FOR CERTAIN INMATES, OR

  ENTERTAIN MOTIONS FOR TEMPORARY REDUCTIONS IN BAIL TO ALLOW SOME

  INMATES TO GET TO THE POLLS ON THEIR OWN."  ID., AT 808 N. 6. 

THE COURT THEREFORE CHARACTERIZED THE APPELLANTS' CLAIM BY SAYING
"(IT IS THUS NOT THE RIGHT TO VOTE THAT IS AT STAKE HERE BUT A CLAIMED
RIGHT TO RECEIVE ABSENTEE BALLOTS."  ID., AT 807.  BECAUSE OF THE
RELATIVELY TRIVIAL INCONVENIENCE ENCOUNTERED BY A VOTER UNABLE TO VOTE
BY ABSENTEE BALLOT WHEN OTHER MEANS OF EXERCISING THE RIGHT TO VOTE ARE
AVAILABLE, THE COURT PROPERLY REJECTED APPELLANTS' CONTENTION THAT
STRICT SCRUTINY OF THE STATUTORY CLASSIFICATIONS WAS REQUIRED.     IN
THIS CASE, HOWEVER, THE NEW YORK COURT OF APPEALS HAS MADE CLEAR THAT
THE FUNDAMENTAL PREMISES ON WHICH MCDONALD WAS BASED ARE ABSENT.  SEE
GOOSBY V. OSSER, 409 U.S. 512, 518 - 522 (1973).  THE NEW YORK COURT
"REJECTED) OUT OF HAND" ANY ALTERNATIVE WHICH WOULD PERMIT APPELLANTS
TO VOTE WITHOUT USING ABSENTEE BALLOTS.  /1/  IN THIS POSTURE, IT CAN
NO LONGER BE CONTENDED THAT THIS CASE INVOLVES "MERELY A CLAIMED RIGHT
TO ABSENTEE BALLOTS"  AND "NOT THE RIGHT TO VOTE," OR THAT THE
CHALLENGED STATUTES "HAVE NO DIRECT IMPACT ON (APPELLANTS') RIGHT TO
VOTE," AS THE COURT OF APPEALS, RELYING ON MCDONALD, ARGUED, 31 N.Y 2D
317, 320 291 N.E. 2D 134, 136; SUCH STATEMENTS, IN THE CONTEXT OF THIS
CASE, FLY IN THE FACE OF REALITY.  NOR CAN IT BE CONTENDED THAT DENIAL
OF ABSENTEE BALLOTS TO APPELLANTS DOES NOT DEPRIVE THEM OF THEIR RIGHT
TO VOTE ANY MORE THAN IT DEPRIVES OTHERS WHO MAY "SIMILARLY" FIND IT
"IMPRACTICABLE" TO GET TO THE POLLS ON ELECTION DAY, SEE ID., AT 320
321, 291 N.E. 2D, AT 136-137; HERE, IT IS THE STATE WHICH IS BOTH
PHYSICALLY PREVENTING APPELLANTS FROM GOING TO THE POLLS AND DENYING
THEM ALTERNATIVE MEANS OF CASTING THEIR BALLOTS.  DENIAL OF ABSENTEE
REGISTRATION AND ABSENTEE BALLOTS IS EFFECTIVELY AN ABSOLUTE DENIAL OF
THE FRANCHISE TO THESE APPELLANTS. 

IT IS WELL SETTLED THAT "IF A CHALLENGED STATUTE GRANTS THE RIGHT TO
VOTE TO SOME CITIZENS AND DENIES THE FRANCHISE TO OTHERS, 'THE COURT
MUST DETERMINE WHETHER THE EXCLUSIONS ARE NECESSARY TO PROMOTE A
COMPELLING STATE INTEREST.'"  DUNN V. BLUMSTEIN, 405 U.S. 330, 337
(1972), QUOTING KRAMER V. UNION FREE SCHOOL DISTRICT, 395 U.S. 621, 627
(1969); SEE ALSO CIPRIANO V. CITY OF HOUMA, 395 U.S. 701, 704 (1969);
CITY OF PHOENIX V. KOLODZIEJSKI, 399 U.S. 204, 205, 209 (1973).  IT IS
THIS STANDARD OF REVIEW WHICH MUST BE EMPLOYED HERE. 

NEW YORK LAW PROVIDES FOR ABSENTEE REGISTRATION AND VOTING BY
NUMEROUS CATEGORIES OF VOTERS WHO MAY BE UNABLE TO APPEAR IN PERSON AT
THE POLLS.  NEW YORK PERMITS ABSENTEE REGISTRATION AND VOTING BY INTER
ALIA, THOSE WHO ARE UNABLE TO APPEAR PERSONALLY BECAUSE OF ILLNESS OR
PHYSICAL DISABILITY, OR THOSE WHOSE DUTIES, OCCUPATION, OR BUSINESS
TAKES THEM OUT OF THEIR COUNTY OF RESIDENCE.  ABSENTEE BALLOTS ARE EVEN
AVAILABLE TO THOSE WHO ARE ON VACATION OUTSIDE THE COUNTY ON ELECTION
DAY.  SIGNIFICANTLY, IT IS ALSO CONCEDED THAT PRETRIAL DETAINEES AND
CONVICTED MISDEMEANANTS RESIDING IN MONROE COUNTY BUT CONFINED OUTSIDE
THE COUNTY MAY REGISTER AND VOTE BY MAIL.  /2/ 

IN LIGHT OF THESE EXTENSIVE PROVISIONS FOR PARTICIPATION IN THE
ELECTORAL PROCESS THROUGH THE MAIL BY OTHERS, NEW YORK'S EXCLUSION OF
PRETRIAL DETAINEES AND CONVICTED MISDEMEANANTS CONFINED IN THE COUNTY
OF THEIR RESIDENCE CANNOT WITHSTAND ANALYSIS.  THE ONLY BASIS EVEN
SUGGESTED FOR THIS DISCRIMINATION IS THE POSSIBILITY RECOGNIZED BY THE
COURT IN MCDONALD "THAT WITHOUT THE PROTECTION OF THE VOTING BOOTH,
LOCAL OFFICIALS MIGHT BE TOO TEMPTED TO TRY TO INFLUENCE THE LOCAL VOTE
OF IN-COUNTY INMATES."  394 U.S., AT 810.  THOUGH PROTECTION OF THE
INTEGRITY OF THE BALLOT BOX IS SURELY A LEGITIMATE STATE CONCERN, I
FRANKLY FIND SOMETHING A BIT DISTURBING ABOUT THIS APPROACH TO THE
PROBLEM.  IT IS HARD TO CONCEIVE HOW THE STATE CAN POSSIBLY JUSTIFY
DENYING ANY PERSON HIS RIGHT TO VOTE ON THE GROUND THAT HIS VOTE MIGHT
AFFORD A STATE OFFICIAL THE OPPORTUNITY TO ABUSE HIS POSITION OF
AUTHORITY.  IF NEW YORK TRULY HAS SO LITTLE CONFINDENCE IN THE
INTEGRITY OF ITS STATE OFFICERS, THE TIME HAS COME FOR THE STATE TO
ADOPT STRINGENT MEASURES TO PREVENT OFFICIAL MISCONDUCT, NOT TO FURTHER
PENALIZE ITS CITIZENS BY DEPRIVING THEM OF THEIR RIGHT TO VOTE.  THERE
ARE SURELY LESS BURDENSOME MEANS TO PROTECT INMATE VOTERS AGAINST
ATTEMPTS TO INFLUENCE THEIR VOTES--THE ALTERANTIVES SUGGESTED BY THE
COURT IN MCDONALD, FOR EXAMPLE. 

I THUS HAVE LITTLE DIFFICULTY IN CONCLUDING THAT THE ASSERTED STATE
INTEREST IS INSUFFICIENT TO JUSTIFY THE STATUTES' DISCRIMINATION
AGAINST PRETRIAL DETAINEES AND CONVICTED MISDEMEANANTS UNDER THE
COMPELLING STATE-INTEREST TEST.  I THINK IT IS CLEAR THAT THE STATE'S
DENIAL OF ALL OPPORTUNITY FOR APPELLANTS TO REGISTER AND VOTE DEPRIVES
THEM OF THE RIGHT TO VOTE ON AN EQUAL BASIS WITH OTHER CITIZENS
GUARANTEED UNDER THE EQUAL PROTECTION CLAUSE. 

/1/  THE COURT OF APPEALS STATED: 

"WE REJECT OUT OF HAND ANY SCHEME WHICH WOULD COMMIT RESPONDENTS TO
A POLICY OF TRANSPORTING SUCH DETAINEES TO PUBLIC POLLING PLACES; WOULD
ASSIGN THEM THE RESPONSIBILITY OF PROVIDING SPECIAL VOTING FACILITIES
UNDER SUCH CONDITIONS ... OR, WOULD THREATEN LIKE HAZARDS EMBRACED BY
SUCH SCHEMA."  31 N.Y. 2D 317, 319, 291 N.E. 2D 134, 135 (1972). 

PRESUMABLY THIS INCLUDES A FLAT REJECTION OF THE POSSIBILITY OF
TEMPORARY REDUCTIONS IN BAIL TO ALLOW DETAINEES TO VOTE SUGGESTED BY
THE COURT IN MCDONALD. 

/2/  AS THE COURT EMPHASIZES, NEW YORK LAW DOES NOT DISENFRANCHISE
EITHER CONVICTED MISDEMEANANTS OR PERSONS BEING HELD FOR TRIAL ON
CRIMINAL CHARGES.  INDEED, IT APPEARS THAT THE NEW YORK CONSTITUTION
DOES NOT PERMIT SUCH DISENFRANCHISEMENT.  ARTICLE II, 1, OF THE
CONSTITUTION PROVIDES THAT "(EVERY CITIZEN SHALL BE ENTITLED TO VOTE"
AND ART. II, 3, EXCLUDES ONLY THOSE "CONVICTED OF BRIBERY OR OF ANY
INFAMOUS CRIME."  WE THEREFORE NEED NOT CONFRONT IN THIS CASE THE VERY
SUBSTANTIAL CONSTITUTIONAL PROBLEMS PRESENTED IF A STATE DID SEEK TO
EXCLUDE THESE CLASSES FROM THE FRANCHISE. 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

ONCE AGAIN, WE ARE CONFRONTED WITH A CLAIM, FASHIONABLE OF LATE,
THAT A STATE STATUTE WHICH, BECAUSE OF ITS POSITIVE PROVISIONS, ROSARIO
V. ROCKEFELLER, 410 U.S. 752 (1973); KUSPER V. PONTIKES, ANTE, P. 51;
SEE GOOSBY V. OSSER, 409 U.S. 512 (1973), OR BECAUSE OF ITS FAILURE TO
PROVIDE PARTICULAR PERSONS PARTICULAR RELIEF, AS HERE, IS AN
UNCONSTITUTIONAL DEPRIVATION OF THE RIGHT TO VOTE.  AND ONCE AGAIN THE
COURT STRIKES DOWN THE STATE STATUTES. 

BECAUSE I THINK THE COURT IS UNNECESSARILY AND UNWISELY ELEVATING
AND PROJECTING CONSTITUTIONAL PRONOUNCEMENT INTO AN AREA--AND INTO
DISTANT AND OBSCURE CORNERS OF THAT AREA--THAT, FOR ME, SHOULD BE A
DOMAIN RESERVED FOR THE STATE'S OWN HOUSEKEEPING, I DISSENT. 

I JOIN, AND WITH SOME EMPHASIS, THE COURT'S OBSERVATIONS AND THOSE
OF MR. JUSTICE MARSHALL IN HIS CONCURRING OPINION, TO THE EFFECT THAT
THE MUCH-AMENDED NEW YORK STATUTES HERE UNDER CHALLENGE CUT UNEVENLY. 
SURELY, NO ONE WOULD CLAIM THAT THEY ARE NOW A MODEL OF THE DRAFTSMAN'S
ART. THE ABSENTEE-VOTING PRIVILEGE APPEARS TO BE AVAILABLE FOR THE
VOTER WHO IS AN INMATE OF A VETERANS' BUREAU HOSPITAL, N.Y. ELECTION
LAW 117 (1964), BUT NOT, SEEMINGLY, DUE TO THE STATUTE'S SILENCE
(UNLESS HE CAN OTHERWISE QUALIFY "BECAUSE OF ILLNESS OR PHYSICAL
DISABILITY," ID., 117 - A), FOR THE VOTER WHO IS JUST AS NONAMBULATORY,
AND JUST AS CONFINED, IN SOME MUNICIPAL OR DENOMINATIONAL INSTITUTION. 
IT IS AVAILABLE, UNDER 117, FOR THE VOTER, "UNAVOIDABLY ABSENT" ON
BUSINESS, AND EVEN FOR THE VOTER "ABSENT" ON VACATION, BUT NOT,
SEEMINGLY, FOR THE VOTER WHO IS ABSENT ATTENDING A WEDDING OR VISITING
A SERIOUSLY ILL RELATIVE IN THE NEXT STATE.  AND IT IS CONCEDEDLY
AVAILABLE FOR THE OCCUPANT OF THE COUNTY JAIL WHO RESIDES IN ANOTHER
NEW YORK COUNTY BUT NOT FOR THE OCCUPANT WHO RESIDES IN THE LOCAL
COUNTY. 

THESE ARE IRRITATING AND LESS-THAN-THOUGHTFUL SUB SILENTIO
DISTINCTIONS, AND THE TEMPTATION TO ELIMINATE THEM BY STRIKING DOWN THE
STATUTES IS STRONG AND APPEALING.  I AM NOT CONVINCED, HOWEVER, THAT WE
SHOULD BE SO READY TO INTERFERE.  NEW YORK'S PRESENT STATUTORY
STRUCTURE HAS DEVELOPED BY SUCCESSIVE REMEDIAL AMENDMENTS, EACH
DESIGNED TO CORRECT A THEN-APPARENT GAP.  THE STATE, AFTER ALL, AS A
MATTER OF CONSTITUTIONAL REQUIREMENT, NEED NOT HAVE PROVIDED FOR ANY
ABSENTEE REGISTRATION OR ABSENTEE VOTING.  AND 

     "A LEGISLATURE TRADITIONALLY HAS BEEN ALLOWED TO TAKE REFORM

'ONE STEP AT A TIME, ADDRESSING ITSELF TO THE PHASE OF THE

  PROBLEM WHICH SEEMS MOST ACUTE TO THE LEGISLATIVE MIND,'

  WILLIAMSON V. LEE OPTICAL OF OKLAHOMA, INC., 348 U.S. 483, 489

  (1955); AND A LEGISLATURE NEED NOT RUN THE RISK OF LOSING AN

  ENTIRE REMEDIAL SCHEME SIMPLY BECAUSE IT FAILED, THROUGH

  INADVERTENCE OR OTHERWISE, TO COVER EVERY EVIL THAT MIGHT

  CONCEIVABLY HAVE BEEN ATTACKED...."  MCDONALD V. BOARD OF

  ELECTION COMM'RS, 394 U.S. 802, 809 (1969). 

SEE ALSO JEFFERSON V. HACKNEY, 406 U.S. 535, 546 (1972). 

FURTHERMORE, THIS FALLOUT FROM THE NEW YORK STATUTES IS MINOR AND
COLLATERAL AND NOT OF GREAT, LET ALONE CONSTITUTIONAL, IMPORT.  THERE
IS BOUND TO BE A DIVIDING LINE SOMEWHERE, INTENDED OR UNINTENDED (AS I
SUSPECT THIS WAS).  IF THAT DIVIDING LINE OPERATES TO DEPRIVE A PERSON
OF WHAT HE FEELS IS HIS RIGHT TO VOTE, HIS REACTION WILL BE CRITICAL. 
WHETHER HE HAS A CONSTITUTIONAL CLAIM, HOWEVER, IS SOMETHING ELSE
AGAIN.  LINE DRAWING IS NECESSARY, AS THE COURT CONCEDED IN DUNN V.
BLUMSTEIN, 405 U.S. 330, 348 (1972), AND BY THE VERY PROCESS OF LINE
DRAWING, SOMEONE WILL BE LEFT OUT OR TREATED DIFFERENTLY. 

I FEEL, THEREFORE, THAT ANY UNEQUAL EFFECT OF THE NEW YORK STATUTES
IS LARGELY INCIDENTAL AND WHOLLY A FUNCTION OF THE STATE'S FAILURE TO
EXTEND ITS REMEDIAL PROVISIONS A LITTLE FURTHER.  THESE APPELLANTS ARE
AFFECTED, TO BE SURE, BUT THEY ARE AFFECTED BECAUSE IT WAS THEIR
MISFORTUNE TO BE DETAINEES OR CONVICTED MISDEMEANANTS SERVING THEIR
SENTENCES IN THE COUNTY FAIL ON THE CRITICAL DAY.  THE MISDEMEANANTS
WERE IN JAIL THROUGH THEIR DOING, JUST AS THE PETITIONERS IN ROSARIO V.
ROCKFELLER, SUPRA, FOUND THEMSELVES UNABLE TO VOTE BECAUSE OF THEIR
FAILURE TO MEET AN ENROLLMENT DEADLINE.  TH PLIGHT OF DETAINEES ELICITS
CONCERN OF COURSE, FOR A DETAINEE MAY NOT BE GUILTY OF THE OFFENSE WITH
WHICH HE IS CHARGED.  YET THE STATUTES' EFFECT UPON HIM, ALTHOUGH
UNFORTUNATE, PRODUCES A SITUATION NO MORE CRITICAL THAN THE SITUATION
OF THE VOTER, JUST AS UNFORTUNATE, WHO ON ELECTION DAY IS AWAY
ATTENDING THE FUNERAL OF A LOVED ONE IN A DISTANT STATE.  THESE ARE
INEQUALITIES, BUT THEY ARE THE INCIDENTAL INEQUALITIES OF LIFE, AND I
DO NOT REGARD THEM AS UNCONSTITUTIONAL. 

I WOULD REFRAIN FROM CONTINUED TAMPERING AND INTERFERENCE WITH THE
DETAILS OF STATE ELECTION LAWS.  IF DETAILS ARE DESERVING OF CURE, THE
STATE'S LEGISLATURE, NOT THIS COURT, OUGHT TO BE THE CURATIVE AGENT. 

WILLIAM D. EGGERS ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WERE DAVID N. KUNKEL, RUTH B. ROSENBERG, BURT NEUBORNE, AND
MELVIN L. WULF. 

MICHAEL K. CONSEDINE ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLEES.  /1/ 

/1/  LOUIS J. LEFKOWITZ, PRO SE, ATTORNEY GENERAL OF NEW YORK, RUTH
KESSLER TOCH, SOLICITOR GENERAL, AND WILLIAM J. KOGAN, ASSISTANT
ATTORNEY GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL OF NEW YORK AS
AMICUS CURIAE URGING AFFIRMANCE. 
..END :
























AMERICAN PIPE & CONSTRUCTION CO. V. UTAH, 414 U.S. 538 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 72 - 1195.  ARGUED NOVEMBER 12, 1973--DECIDED JANUARY

           16, 1974; 473 F.2D 580, AFFIRMED. 


    ELEVEN DAYS SHORT OF A YEAR AFTER A FINAL CONSENT JUDGMENT HAD

  BEEN ENTERED AGAINST PETITIONERS IN CIVIL ACTIONS BY THE

  GOVERNMENT TO RESTRAIN FEDERAL ANTITRUST VIOLATIONS (WHICH

  ACTIONS HAD BEEN FILED ALMOST FOUR YEARS BEFORE ENTRY OF THAT

  JUDGMENT), THE STATE OF UTAH COMMENCED A SHERMAN ACT

  TREBLE-DAMAGES CLASS ACTION AGAINST PETITIONERS, IN WHICH THE

  STATE PURPORTED TO REPRESENT VARIOUS STATE AND LOCAL AGENCIES AND

  CERTAIN OTHER WESTERN STATES.  THE ACTION WAS FOUND TO BE TIMELY

  UNDER THE FEDERAL FOUR-YEAR STATUTE OF LIMITATIONS GOVERNING

  ANTITRUST SUITS (4B OF THE CLAYTON ACT) BECAUSE OF 5(B) OF THAT

  ACT PROVIDING THAT WHENEVER THE UNITED STATES INSTITUTES ANY

PROCEEDING TO RESTRAIN ANTITRUST VIOLATIONS, THE RUNNING OF THE

  STATUTE OF LIMITATIONS IN RESPECT OF EVERY PRIVATE RIGHT OF

  ACTION ARISING UNDER SUCH LAWS AND BASED ON ANY MATTER COMPLAINED

  OF IN SUCH PROCEEDING SHALL BE SUSPENDED DURING THE PENDENCY

  THEREOF AND FOR ONE YEAR THEREAFTER.  THE DISTRICT COURT

  THEREAFTER GRANTED PETITIONERS' MOTION FOR AN ORDER PURSUANT TO

  FED. RULE CIV. PROC. 23(C)(1) THAT THE SUIT COULD NOT BE

  MAINTAINED AS A CLASS ACTION, THE COURT FINDING THAT, ALTHOUGH

  THE PREREQUISITES TO A CLASS ACTION CONTAINED IN RULE 23(A)(2)

  THROUGH (4) HAD BEEN MET, THE REQUIREMENT OF RULE 23(A)(1) THAT

  "THE CLASS (BE) SO NUMEROUS THAT JOINDER OF ALL MEMBERS IS

IMPRACTICABLE" WAS NOT SATISFIED.  EIGHT DAYS AFTER ENTRY OF THIS

  ORDER, RESPONDENT TOWNS, MUNICIPALITIES, AND WATER DISTRICTS, ALL

  OF WHICH HAD BEEN CLAIMED AS MEMBERS OF THE ORIGINAL CLASS, MOVED

  TO

INTERVENE AS PLAINTIFFS IN UTAH'S ACTION, EITHER AS OF RIGHT UNDER FED.
RULE CIV. PROC. 24(A)(2) OR BY PERMISSION UNDER RULE 24(B)(2), BUT THE
DISTRICT COURT DENIED THIS MOTION, CONCLUDING THAT THE LIMITATION
PERIOD HAD RUN AS TO ALL THOSE RESPONDENTS AND HAD NOT BEEN TOLLED BY
INSTITUTION OF THE CLASS ACTION.  THE COURT OF APPEALS REVERSED AS TO
DENIAL OF PERMISSION TO INTERVENE UNDER RULE 24(B)(2), FINDING THAT AS
TO THE MEMBERS OF THE CLASS UTAH PURPORTED TO REPRESENT, SUIT WAS
ACTUALLY COMMENCED BY UTAH'S FILING OF THE CLASS ACTION.  HELD: 

     1.  THE COMMENCEMENT OF A CLASS ACTION SUSPENDS THE APPLICABLE

  STATUTE OF LIMITATIONS AS TO ALL ASSERTED MEMBERS OF THE CLASS

  WHO WOULD HAVE BEEN PARTIES HAD THE REQUIREMENT OF RULE 23(A)(1)

  BEEN MET, AND HERE WHERE RESPONDENTS, WHO WERE PURPORTED MEMBERS

  OF THE CLASS, MADE TIMELY MOTIONS TO INTERVENE AFTER THE DISTRICT

  COURT HAD FOUND THE SUIT INAPPROPRIATE FOR CLASS ACTION STATUS,

  THE INSTITUTION OF THE ORIGINAL CLASS SUIT TOLLED THE LIMITATIONS

  STATUTE FOR RESPONDENTS.  PP. 552 - 556. 

     2.  A JUDICIAL TOLLING OF THE STATUTE OF LIMITATIONS DOES NOT

  ABRIDGE OR MODIFY A SUBSTANTIVE RIGHT AFFORDED BY THE ANTITRUST

  ACTS; THE MERE FACT THAT A FEDERAL STATUTE PROVIDING FOR

  SUBSTANTIVE LIABILITY ALSO SETS A TIME LIMITATION UPON THE

  INSTITUTION OF SUIT DOES NOT RESTRICT THE POWER OF THE FEDERAL

  COURTS TO HOLD THAT THE STATUTE OF LIMITATIONS IS TOLLED UNDER

  CERTAIN CIRCUMSTANCES NOT INCONSISTENT WITH THE LEGISLATIVE

  PURPOSE.  PP. 556 - 559. 

     3.  THE DISTRICT COURT'S DETERMINATION IN DENYING PERMISSION
TO

  INTERVENE THAT RESPONDENTS WERE ABSOLUTELY BARRED BY THE STATUTE

  OF LIMITATIONS, WAS NOT AN UNREVIEWABLE EXERCISE OF DISCRETION

  BUT RATHER A CONCLUSION OF LAW WHICH THE COURT OF APPEALS

  CORRECTLY FOUND TO BE ERRONEOUS.  PP. 559 - 560. 

     4.  THE COMMENCEMENT OF THE CLASS ACTION SUSPENDED THE RUNNING

  OF THE LIMITATIONS PERIOD ONLY DURING THE PENDENCY OF THE MOTION

TO STRIP THE SUIT OF ITS CLASS ACTION CHARACTER.  SINCE THE CLASS

  ACTION WAS FILED WITH 11 DAYS YET TO RUN IN THE PERIOD AS TOLLED

  BY 5(B), THE INTERVENORS HAD 11 DAYS AFTER ENTRY OF THE ORDER

  DENYING THEM PARTICIPATION IN THE CLASS SUIT IN WHICH TO MOVE TO

  FILE THEIR INTERVENTION MOTION.  THEIR FILING ONLY 8 DAYS AFTER

  THE ENTRY OF SUCH ORDER WAS THUS TIMELY.  PP. 560 - 561. 

STEWART, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  BLACKMUN,
J., FILED A CONCURRING OPINION, POST, P. 561. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES AN ASPECT OF THE RELATIONSHIP BETWEEN A STATUTE OF
LIMITATIONS AND THE PROVISIONS OF FED. RULE CIV. PROC. 23 REGULATING
CLASS ACTIONS IN THE FEDERAL COURTS.  WHILE THE QUESTION PRESENTED IS A
LIMITED ONE, THE DETAILS OF THE COMPLEX PROCEEDINGS, ORIGINATING ALMOST
A DECADE AGO, MUST BE BRIEFLY RECOUNTED. 

ON MARCH 10, 1964, A FEDERAL GRAND JURY RETURNED INDICTMENTS
CHARGING A NUMBER OF INDIVIDUALS AND COMPANIES, INCLUDING THE
PETITIONERS HERE, WITH CRIMINAL VIOLATIONS OF 1 OF THE SHERMAN ACT, 26
STAT. 209, AS AMENDED, 15 U.S.C. 1.  THE INDICTMENTS ALLEGED THAT THE
DEFENDANTS COMBINED AND CONSPIRED TOGETHER IN RESTRAINT OF TRADE IN
STEEL AND CONCRETE PIPE BY SUBMITTING COLLUSIVE AND RIGGED BIDS FOR THE
SALE OF SUCH PIPE AND BY DIVIDING AND ALLOCATING BUSINESS AMONG
THEMSELVES.  SHORTLY THEREAFTER, ON JUNE 19, 1964, PLEAS OF NOLO
CONTENDERE WERE ACCEPTED AND JUDGMENTS OF GUILT WERE ENTERED.  FOUR
DAYS LATER, ON JUNE 23, 1964, THE UNITED STATES FILED CIVIL COMPLAINTS
IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA AGAINST THE SAME COMPANIES, WHICH COMPLAINTS, AS
SUBSEQUENTLY AMENDED, SOUGHT TO RESTRAIN FURTHER VIOLATIONS OF THE
SHERMAN ACT AND VIOLATIONS OF THE CLAYTON AND FALSE CLAIMS ACTS.  THESE
CIVIL ACTIONS WERE THE SUBJECT OF EXTENDED NEGOTIATIONS BETWEEN THE
GOVERNMENT AND THE DEFENDANTS WHICH CULMINATED IN A "FINAL JUDGMENT,"
ENTERED ON MAY 24, 1968, IN WHICH THE COMPANIES CONSENTED TO A DECREE
ENJOINING THEM FROM ENGAGING IN CERTAIN SPECIFIED FUTURE VIOLATIONS OF
THE ANTITRUST LAWS.  /1/ 

ELEVEN DAYS SHORT OF A YEAR LATER, ON MAY 13, 1969, THE STATE OF
UTAH COMMENCED A CIVIL ACTION FOR TREBLE DAMAGES AGAINST THE
PETITIONERS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH, CLAIMING THAT THE PETITIONERS HAD CONSPIRED TO RIG PRICES IN THE
SALE OF CONCRETE AND STEEL PIPE IN VIOLATION OF 1 OF THE SHERMAN ACT. 
THE SUIT PURPORTED TO BE BROUGHT AS A CLASS ACTION IN WHICH THE STATE
REPRESENTED "PUBLIC BODIES AND AGENCIES OF THE STATE AND LOCAL
GOVERNMENT IN THE STATE OF UTAH WHO ARE END USERS OF PIPE ACQUIRED FROM
THE DEFENDANTS" AND ALSO THOSE STATES IN THE "WESTERN AREA" WHICH HAD
NOT PREVIOUSLY FILED SIMILAR ACTIONS.  THIS ACTION WAS FOUND TO BE
TIMELY UNDER THE FEDERAL STATUTE OF LIMITATIONS GOVERNING ANTITRUST
SUITS /2/ BECAUSE OF THE PROVISION OF 5(B) OF THE CLAYTON ACT, 38 STAT.
731, AS AMENDED, 15 U.S.C. 16(B), WHICH STATES THAT 

     "(WHENEVER ANY CIVIL OR CRIMINAL PROCEEDING IS INSTITUTED BY

 THE UNITED STATES TO PREVENT, RESTRAIN, OR PUNISH VIOLATIONS OF

  ANY OF THE ANTITRUST LAWS,... THE RUNNING OF THE STATUTE OF

  LIMITATIONS IN RESPECT OF EVERY PRIVATE RIGHT OF ACTION ARISING

  UNDER SAID LAWS AND BASED IN WHOLE OR IN PART ON ANY MATTER

  COMPLAINED OF IN SAID PROCEEDING SHALL BE SUSPENDED DURING THE

  PENDENCY THEREOF AND FOR ONE YEAR THEREAFTER...."  /3/ 

SINCE THE GOVERNMENT'S CIVIL ACTIONS AGAINST THE PETITIONERS HAD
ENDED IN A CONSENT JUDGMENT ENTERED ON MAY 24, 1968, UTAH'S SUIT,
COMMENCED ON MAY 13, 1969, WAS TIMELY UNDER 5(B), WITH 11 DAYS TO
SPARE.  /4/ 

ON A MOTION MADE BY THE MAJORITY OF THE PETITIONERS, THE SUIT WAS
SUBSEQUENTLY TRANSFERRED BY THE JUDICIAL PANEL ON MULTIDISTRICT
LITIGATION FROM UTAH TO THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA FOR TRIAL BY JUDGE MARTIN PENCE, CHIEF
JUDGE OF THE DISTRICT OF HAWAII, SITTING IN THE CALIFORNIA DISTRICT BY
ASSIGNMENT.  THE TRANSFER AND ASSIGNMENT WERE FOUND APPROPRIATE BECAUSE
OF THE PRIOR CONCENTRATION OF MORE THAN 100 ACTIONS ARISING OUT OF THE
SAME FACTUAL SITUATION IN THE CENTRAL DISTRICT OF CALIFORNIA BEFORE
JUDGE PENCE.  IN RE CONCRETE PIPE, 303 F.SUPP.  507, 508-509 (JPML
1969). 

IN NOVEMBER 1969 THE PETITIONERS MOVED FOR AN ORDER PURSUANT TO FED.
RULE CIV. PROC. 23(C)(1) THAT THE SUIT COULD NOT BE MAINTAINED AS A
CLASS ACTION.  /5/  THIS MOTION WAS SUBSEQUENTLY GRANTED.  IN HIS
MEMORANDUM OPINION IN SUPPORT OF THE ORDER GRANTING THE MOTION JUDGE
PENCE FOUND THAT THOSE "PREREQUISITES TO A CLASS ACTION" CONTAINED IN
RULE 23(A)(2) THROUGH (4) APPEARED TO HAVE BEEN MET, OR AT LEAST THAT
MINOR DEFICIENCIES IN MEETING THOSE STANDARDS FOR DETERMINING THE
SUITABILITY OF PROCEEDING AS A CLASS WOULD "NOT BE FATAL TO THE
PLAINTIFF'S CLASS ACTION."  49 F. R. D. 17, 20.  /6/  BUT THE
REQUIREMENT OF RULE 23(A)(1) THAT "THE CLASS (BE) SO NUMEROUS THAT
JOINDER OF ALL MEMBERS IS IMPRACTICABLE"  WAS FOUND BY JUDGE PENCE NOT
TO BE SATISIFIED:  WHILE THE COMPLAINT HAD ALLEGED THAT THE MEMBERS OF
THE CLASS TOTALED MORE THAN 800, JUDGE PENCE, RELYING ON HIS EXTENSIVE
EXPERIENCE IN DEALING WITH LITIGATION INVOLVING THE SAME DEFENDANTS AND
SIMILAR CAUSES OF ACTION, CONCLUDED THAT THE NUMBER OF ENTITIES WHICH
ULTIMATELY COULD DEMONSTRATE INJURY FROM THE TRADE PRACTICES OF THE
PETITIONERS WAS FAR LOWER, AND, FURTHER, THAT "(FROM PRIOR ACTUAL
EXPERIENCE IN LIKE CASES INVOLVING THE SAME ALLEGED CONSPIRACY, THIS
COURT COULD NOT FIND THAT NUMBER SO NUMEROUS THAT JOINDER OF ALL
MEMBERS WAS IMPRACTICABLE...."  49 F. R. D., AT 21. 

ON DECEMBER 12, 1969, EIGHT DAYS AFTER ENTRY OF THE ORDER DENYING
CLASS ACTION STATUS, /7/  THE RESPONDENTS, CONSISTING OF MORE THAN 60
TOWNS, MUNICIPALITIES, AND WATER DISTRICTS IN THE STATE OF UTAH, ALL OF
WHOM HAD BEEN CLAIMED AS MEMBERS OF THE ORIGINAL CLASS, FILED MOTIONS
TO INTERVENE AS PLAINTIFFS IN UTAH'S ACTION EITHER AS OF RIGHT, UNDER
RULE 24(A)(2) /8/  OR, IN THE ALTERNATIVE, BY PERMISSION UNDER RULE
24(B)(2), /9/  AND FOR OTHER RELIEF NOT PERTINENT HERE.  ON MARCH 30,
1970, THE DISTRICT COURT DENIED THE RESPONDENTS' MOTION IN ALL
RESPECTS, CONCLUDING THAT THE LIMITATIONS PERIOD IMPOSED BY 4B OF THE
CLAYTON ACT, AS TOLLED BY 5(B), HAD RUN AS TO ALL THESE RESPONDENTS AND
HAD NOT BEEN TOLLED BY THE INSTITUTION OF THE CLASS ACTION IN THEIR
BEHALF.  50 F. R. D. 99. 

ON APPEAL, THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED AS TO
THE DENIAL OF LEAVE TO INTERVENE AS OF RIGHT UNDER RULE 24(A)(2), BUT,
WITH ONE JUDGE DISSENTING, REVERSED AS TO DENIAL OF PERMISSION TO
INTERVENE UNDER RULE 24(B)(2).  /10/  473 F.2D 580.  FINDING THAT "AS
TO MEMBERS OF THE CLASS UTAH PURPORTED TO REPRESENT, AND WHOSE CLAIMS
IT TENDERED TO THE COURT, SUIT WAS ACTUALLY COMMENCED BY UTAH'S
FILING," THE APPELLATE COURT CONCLUDED THAT "(IF THE ORDER (DENYING
CLASS ACTION STATUS), THROUGH LEGAL FICTION, IS TO PROJECT ITSELF
BACKWARD IN TIME IT MUST FICTIONALLY CARRY BACKWARD WITH IT THE CLASS
MEMBERS TO WHOM IT WAS DIRECTED, AND THE RIGHTS THEY PRESENTLY
POSSESSED.  IT CANNOT LEAVE THEM TEMPORALLY STRANDED IN THE PRESENT." 
473 F.2D, AT 584.  WE GRANTED CERTIORARI TO CONSIDER A SEEMINGLY
IMPORTANT QUESTION AFFECTING THE ADMINISTRATION OF JUSTICE IN THE
FEDERAL COURTS.  411 U.S. 963. 

        I 

UNDER RULE 23 AS IT STOOD PRIOR TO ITS EXTENSIVE AMENDMENT IN 1966,
383 U.S. 1047 - 1050, A SO-CALLED "SPURIOUS" CLASS ACTION COULD BE
MAINTAINED WHEN "THE CHARACTER OF THE RIGHT SOUGHT TO BE ENFORCED FOR
OR AGAINST THE CLASS IS ... SEVERAL, AND THERE IS A COMMON QUESTION OF
LAW OR FACT AFFECTING THE SEVERAL RIGHTS AND A COMMON RELIEF IS
SOUGHT."  /11/  THE RULE, HOWEVER, CONTAINED NO MECHANISM FOR
DETERMINING AT ANY POINT IN ADVANCE OF FINAL JUDGMENT WHICH OF THOSE
POTENTIAL MEMBERS OF THE CLASS CLAIMED IN THE COMPLAINT WERE ACTUAL
MEMBERS AND WOULD BE BOUND BY THE JUDGMENT.  RATHER, "(WHEN A SUIT WAS
BROUGHT BY OR AGAINST SUCH A CLASS, IT WAS MERELY AN INVITATION TO
JOINDER--AN INVITATION TO BECOME A FELLOW TRAVELER IN THE LITIGATION,
WHICH MIGHT OR MIGHT NOT BE ACCEPTED."  3B J. MOORE, FEDERAL PRACTICE
PARA. 23.10 (1), P. 23-2603 (2 ED.).  CF. SNYDER V. HARRIS, 394 U.S.
332, 335; ZAHN V. INTERNATIONAL PAPER CO., ANTE, AT 296 AND N. 6.  A
RECURRENT SOURCE OF ABUSE UNDER THE FORMER RULE LAY IN THE POTENTIAL
THAT MEMBERS OF THE CLAIMED CLASS COULD IN SOME SITUATIONS AWAIT
DEVELOPMENTS IN THE TRIAL OR EVEN FINAL JUDGMENT ON THE MERITS IN ORDER
TO DETERMINE WHETHER PARTICIPATION WOULD BE FAVORABLE TO THEIR
INTRESTS.  IF THE EVIDENCE AT THE TRIAL MADE THEIR PROSPECTIVE POSITION
AS ACTUAL CLASS MEMBERS APPEAR WEAK, OR IF A JUDGMENT PRECLUDED THE
POSSIBILITY OF A FAVORABLE DETERMINATION, SUCH PUTATIVE MEMBERS OF THE
CLASS WHO CHOSE NOT TO INTERVENE OR JOIN AS PARTIES WOULD NOT BE BOUND
BY THE JUDGMENT.  THIS SITUATION--THE POTENTIAL FOR SO-CALLED "ONEWAY
INTERVENTION"--AROUSED CONSIDERABLE CRITICISM UPON THE GROUND THAT IT
WAS UNFAIR TO ALLOW MEMBERS OF A CLASS TO BENEFIT FROM A FAVORABLE
JUDGMENT WITHOUT SUBJECTING THEMSELVES TO THE BINDING EFFECT OF AN
UNFAVORABLE ONE.  /12/  THE 1966 AMENDMENTS WERE DESIGNED, IN PART,
SPECIFICALLY TO MEND THIS PERCIEVED DEFECT IN THE FORMER RULE AND TO
ASSURE THAT MEMBERS OF THE CLASS WOULD BE IDENTIFIED BEFORE TRIAL ON
THE MERITS AND WOULD BE BOUND BY ALL SUBSEQUENT ORDERS AND JUDGMENTS. 
/13/ 

UNDER THE PRESENT RULE, A DETERMINATION WHETHER AN ACTION SHALL BE
MAINTAINED AS A CLASS ACTION IS MADE BY THE COURT "(AS SOON AS
PRACTICABLE AFTER THE COMMENCEMENT OF AN ACTION BROUGHT AS A CLASS
ACTION...."  RULE 23(C)(1).  /14/  ONCE IT IS DETERMINED THAT THE
ACTION MAY BE MAINTAINED AS A CLASS ACTION UNDER SUBDIVISION (B)(3),
/15/  THE COURT IS MANDATED TO DIRECT TO MEMBERS OF THE CLASS "THE BEST
NOTICE PRACTICABLE UNDER THE CIRCUMSTANCES" ADVISING THEM THAT THEY MAY
BE EXCLUDED FROM THE CLASS IF THEY SO REQUEST, THAT THEY WILL BE BOUND
BY THE JUDGMENT, WHETHER FAVORABLE OR NOT IF THEY DO NOT REQUEST
EXCLUSION, AND THAT A MEMBER WHO DOES NOT REQUEST EXCLUSION MAY ENTER
AN APPEARANCE IN THE CASE.  RULE 23(C)(2).  /16/  FINALLY, THE PRESENT
RULE PROVIDES THAT IN RULE 23(B)(3) ACTIONS THE JUDGMENT SHALL INCLUDE
ALL THOSE FOUND TO BE MEMBERS OF THE CLASS WHO HAVE RECEIVED NOTICE AND
WHO HAVE NOT REQUESTED EXCLUSION.  RULE 23(C)(3).  /17/  THUS,
POTENTIAL CLASS MEMBERS RETAIN THE OPTION TO PARTICIPATE IN OR WITHDRAW
FROM THE CLASS ACTION ONLY UNTIL A POINT IN THE LITIGATION "AS SOON AS
PRACTICABLE AFTER THE COMMENCEMENT" OF THE ACTION WHEN THE SUIT IS
ALLOWED TO CONTINUE AS A CLASS ACTION AND THEY ARE SENT NOTICE OF THEIR
INCLUSION WITHIN THE CONFINES OF THE CLASS.  THEREAFTER THEY ARE EITHER
NONPARTIES TO THE SUIT AND INELIGIBLE TO PARTICIPATE IN A RECOVERY OR
TO BE BOUND BY A JUDGMENT, OR ELSE THEY ARE FULL MEMBERS WHO MUST ABIDE
BY THE FINAL JUDGMENT, WHETHER FAVORABLE OR ADVERSE. 

UNDER FORMER RULE 23, THERE EXISTED SOME DIFFERENCE OF OPINION
AMOUNG THE FEDERAL COURTS OF APPEALS AND DISTRICT COURTS AS TO WHETHER
PARTIES SHOULD BE ALLOWED TO JOIN OR INTERVENE AS MEMBERS OF A
"SPURIOUS" CLASS AFTER THE TERMINATION OF A LIMITATION PERIOD, WHEN THE
INITIAL CLASS ACTION COMPLAINT HAD BEEN FILED BEFORE THE APPLICABLE
STATUTE OF LIMITATIONS PERIOD HAD RUN.  A MAJORITY OF THE COURTS RULING
ON THE QUESTION, EMPHASIZING THE REPRESENTATIVE NATURE OF A CLASS SUIT,
CONCLUDED THAT SUCH INTERVENTION WAS PROPER.  /18/  OTHER COURTS
CONCLUDED THAT SINCE A "SPURIOUS" CLASS ACTION WAS ESSENTIALLY A DEVICE
TO PERMIT INDIVIDUAL JOINDER OR INTERVENTION, EACH INDIVIDUAL SO
PARTICIPATING WOULD HAVE TO SATISFY THE TIMELINESS REQUIREMENT.  /19/
THIS CONFLICT IN THE IMPLEMENTATION OF THE FORMER RULE WAS NEVER
RESOLVED BY THIS COURT. 

UNDER PRESENT RULE 23, HOWEVER, THE DIFFICULTIES AND POTENTIAL FOR
UNFAIRNESS WHICH, IN PART, CONVINCED SOME COURTS TO REQUIRE
INDIVIDUALIZED SATISFACTION OF THE STATUTE OF LIMITATIONS BY EACH
MEMBER OF THE CLASS, HAVE BEEN ELIMINATED, AND THERE REMAIN NO
CONCEPTUAL OR PRACTICAL OBSTACLES IN THE PATH OF HOLDING THAT THE
FILING OF A TIMELY CLASS ACTION COMPLAINT COMMENCES THE ACTION FOR ALL
MEMBERS OF THE CLASS AS SUBSEQUENTLY DETERMINED.  /20/ WHATEVER THE
MERIT IN THE CONCLUSION THAT ONE SEEKING TO JOIN A CLASS AFTER THE
RUNNING OF THE STATUTORY PERIOD ASSERTS A "SEPARATE CAUSE OF ACTION"
WHICH MUST INDIVIDUALLY MEET THE TIMELINESS REQUIREMENTS, ATHAS V. DAY,
161 F.SUPP.  916, 919 (COLO. 1958), SUCH A CONCEPT IS SIMPLY
INCONSISTENT WITH RULE 23 AS PRESENTLY DRAFTED.  A FEDERAL CLASS ACTION
IS NO LONGER "AN INVITATION TO JOINDER" BUT A TRULY REPRESENTATIVE SUIT
DESIGNED TO AVOID, RATHER THAN ENCOURAGE, UNNECESSARY FILING OF
REPETITIOUS PAPERS AND MOTIONS.  UNDER THE CIRCUMSTANCES OF THIS CASE,
WHERE THE DISTRICT COURT FOUND THAT THE NAMED PLAINTIFFS ASSERTED
CLAIMS THAT WERE "TYPICAL OF THE CLAIMS OR DEFENSES OF THE CLASS" AND
WOULD "FAIRLY AND ADEQUATELY PROTECT THE INTERESTS OF THE CLASS," RULE
23(A)(3), (4), THE CLAIMED MEMBERS OF THE CLASS STOOD AS PARTIES TO THE
SUIT UNTIL AND UNLESS THEY RECEIVED NOTICE THEREOF AND THOSE NOT TO
CONTINUE.  THUS, THE COMMENCEMENT OF THE ACTION SATISFIED THE PURPOSE
OF THE LIMITATION PROVISION AS TO ALL THOSE WHO MIGHT SUBSEQUENTLY
PARTICIPATE IN THE SUIT AS WELL AS FOR THE NAMED PLAINTIFFS.  TO HOLD
TO THE CONTRARY WOULD FRUSTRATE THE PRINCIPAL FUNCTION OF A CLASS SUIT,
BECAUSE THEN THE SOLE MEANS BY WHICH MEMBERS OF THE CLASS COULD ASSURE
THEIR PARTICIPATION IN THE JUDGMENT IF NOTICE OF THE CLASS SUIT DID NOT
REACH THEM UNTIL AFTER THE RUNNING OF THE LIMITATION PERIOD WOULD BE TO
FILE EARLIER INDIVIDUAL MOTIONS TO JOIN OR INTERVENE AS PARTIES-
PRECISELY THE MULTIPLICITY OF ACTIVITY WHICH RULE 23 WAS DESIGNED TO
AVOID IN THOSE CASES WHERE A CLASS ACTION IS FOUND "SUPERIOR TO OTHER
AVAILABLE METHODS FOR THE FAIR AND EFFICIENT ADJUDICATION OF THE
CONTROVERSY."  RULE 23(B)(3).    WE THINK NO DIFFERENT A STANDARD
SHOULD APPLY TO THOSE MEMBERS OF THE CLASS WHO DID NOT RELY UPON THE
COMMENCEMENT OF THE CLASS ACTION (OR WHO WERE EVEN UNAWARE THAT SUCH A
SUIT EXISTED) AND THUS CANNOT CLAIM THAT THEY REFRAINED FROM BRINGING
TIMELY MOTIONS FOR INDIVIDUAL INTERVENTION OR JOINDER BECAUSE OF A
BELIEF THAT THEIR INTERESTS WOULD BE REPRESENTED IN THE CLASS SUIT. 
/21/  RULE 23 IS NOT DESIGNED TO AFFORD CLASS ACTION REPRESENTATION
ONLY TO THOSE WHO ARE ACTIVE PARTICIPANTS IN OR EVEN AWARE OF THE
PROCEEDINGS IN THE SUIT PRIOR TO THE ORDER THAT THE SUIT SHALL OR SHALL
NOT PROCEED AS A CLASS ACTION.  DURING THE PENDENCY OF THE DISTRICT
COURT'S DETERMINATION IN THIS REGARD, WHICH IS TO BE MADE "AS SOON AS
PRACTICABLE AFTER THE COMMENCEMENT OF AN ACTION," POTENTIAL CLASS
MEMBERS ARE MERE PASSIVE BENEFICIARIES OF THE ACTION BROUGHT IN THEIR
BEHALF.  NOT UNTIL THE EXISTENCE AND LIMITS OF THE CLASS HAVE BEEN
ESTABLISHED AND NOTICE OF MEMBERSHIP HAS BEEN SENT DOES A CLASS MEMBER
HAVE ANY DUTY TO TAKE NOTE OF THE SUIT OR TO EXERCISE ANY
RESPONSIBILITY WITH RESPECT TO IT IN ORDER TO PROFIT FROM THE EVENTUAL
OUTCOME OF THE CASE.  IT FOLLOWS THAT EVEN AS TO ASSERTED CLASS MEMBERS
WHO WERE UNAWARE OF THE PROCEEDINGS BROUGHT IN THEIR INTEREST OR WHO
DEMONSTRABLY DID NOT RELY ON THE INSTITUTION OF THOSE PROCEEDINGS, THE
LATER RUNNING OF THE APPLICABLE STATUTE OF LIMITATIONS DOES NOT BAR
PARTICIPATION IN THE CLASS ACTION AND IN ITS ULTIMATE JUDGMENT. 

        II 

IN THE PRESENT CASE THE DISTRICT COURT ORDERED THAT THE SUIT COULD
NOT CONTINUE AS A CLASS ACTION, AND THE PARTICIPATION DENIED TO THE
RESPONDENTS BECAUSE OF THE RUNNING OF THE LIMITATION PERIOD WAS NOT
MEMBERSHIP IN THE CLASS, BUT RATHER THE PRIVILEGE OF INTERVENING IN AN
INDIVIDUAL SUIT PURSUANT TO RULE 24(B)(2).  /22/  WE HOLD THAT IN THIS
POSTURE, AT LEAST WHERE CLASS ACTION STATUS HAS BEEN DENIED SOLELY
BECAUSE OF FAILURE TO DEMONSTRATE THAT "THE CLASS IS SO NUMEROUS THAT
JOINDER OF ALL MEMBERS IS IMPRACTICABLE," THE COMMENCEMENT OF THE
ORIGINAL CLASS SUIT TOLLS THE RUNNING OF THE STATUTE FOR ALL PURPORTED
MEMBERS OF THE CLASS WHO MAKE TIMELY MOTIONS TO INTERVENE AFTER THE
COURT HAS FOUND THE SUIT INAPPROPRIATE FOR CLASS ACTION STATUE.  AS THE
COURT OF APPEALS WAS CAREFUL TO NOTE IN THE PRESENT CASE, "MAINTENANCE
OF THE CLASS ACTION WAS DENIED NOT FOR FAILURE OF THE COMPLAINT TO
STATE A CLAIM ON BEHALF OF THE MEMBERS OF THE CLASS (THE COURT
RECOGNIZED THE PROBABILITY OF COMMON ISSUES OF LAW AND FACT RESPECTING
THE UNDERLYING CONSPIRACY) NOT FOR LACK OF STANDING OF THE
REPRESENTATIVE, OR FOR REASONS OF BAD FAITH OR FRIVOLITY."  473 F.2D,
AT 584.  (FOOTNOTE OMITTED.) 

A CONTRARY RULE ALLOWING PARTICIPATION ONLY BY THOSE POTENTIAL
MEMBERS OF THE CLASS WHO HAD EARLIER FILED MOTIONS TO INTERVENE IN THE
SUIT WOULD DEPRIVE RULE 23 CLASS ACTIONS OF THE EFFICIENCY AND ECONOMY
OF LITIGATION WHICH IS A PRINCIPAL PURPOSE OF THE PROCEDURE.  POTENTIAL
CLASS MEMBERS WOULD BE INDUCED TO FILE PROTECTIVE MOTIONS TO INTERVENE
OR TO JOIN IN THE EVENT THAT A CLASS WAS LATER FOUND UNSUITABLE.  IN
CASES SUCH AS THIS ONE, WHERE THE DETERMINATION TO DISALLOW THE CLASS
ACTION WAS MADE UPON CONSIDERATIONS THAT MAY VARY WITH SUCH SUBTLE
FACTORS AS EXPERIENCE WITH PRIOR SIMILAR LITIGATION OR THE CURRENT
STATUS OF A COURT'S DOCKET, /23/  A RULE REQUIRING SUCCESSFUL
ANTICIPATION OF THE DETERMINATION OF THE VIABILITY OF THE CLASS WOULD
BREED NEEDLESS DUPLICATION OF MOTIONS.  WE ARE CONVINCED THAT THE RULE
MOST CONSISTENT WITH FEDERAL CLASS ACTION PROCEDURE MUST BE THAT THE
COMMENCEMENT OF A CLASS ACTION SUSPENDS THE APPLICABLE STATUTE OF
LIMITATIONS AS TO ALL ASSERTED MEMBERS OF THE CLASS WHO WOULD HAVE BEEN
PARTIES HAD THE SUIT BEEN PERMITTED TO CONTINUE AS A CLASS ACTION. 
/24/ 

THIS RULE IS IN NO WAY INCONSISTENT WITH THE FUNCTIONAL OPERATION OF
A STATUTE OF LIMITATIONS.  AS THE COURT STATED IN ORDER OF RAILROAD
TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, 321 U.S. 342, STATUTORY
LIMITATION PERIODS ARE "DESIGNED TO PORMOTE JUSTICE BY PREVENTING
SURPRISES THROUGH THE REVIVAL OF CLAIMS THAT HAVE BEEN ALLOWED TO
SLUMBER UNTIL EVIDENCE HAS BEEN LOST, MEMORIES HAVE FADED, AND
WITNESSES HAVE DISAPPEARED.  THE THEORY IS THAT EVEN IF ONE HAS A JUST
CLAIM IT IS UNJUST NOT TO PUT THE ADVERSARY ON NOTICE TO DEFEND WITHIN
THE PERIOD OF LIMITATION AND THAT THE RIGHT TO BE FREE OF STALE CLAIMS
IN TIME COMES TO PREVAIL OVER THE RIGHT TO PROSECUTE THEM."  ID., AT
348 - 349.  THE POLICIES OF ENSURING ESSENTIAL FAIRNESS TO DEFENDANTS
AND OF BARRING A PLAINTIFF WHO "HAS SLEPT ON HIS RIGHTS,"  BURNETT V.
NEW YORK CENTRAL R. CO., 380 U.S. 424, 428, ARE SATISFIED WHEN, AS
HERE, A NAMED PLAINTIFF WHO IS FOUND TO BE REPRESENTATIVE OF A CLASS
COMMENCES A SUIT AND THEREBY NOTIFIES THE DEFENDANTS NOT ONLY OF THE
SUBSTANTIVE CLAIMS BEING BROUGHT AGAINST THEM, BUT ALSO OF THE NUMBER
AND GENERIC IDENTITIES OF THE POTENTIAL PLAINTIFFS WHO MAY PARTICIPATE
IN THE JUDGMENT.  WITHIN THE PERIOD ESSENTIAL INFORMATION NECESSARY TO
DETERMINE BOTH THE SUBJECT MATTER AND SIZE OF THE PROSPECTIVE
LITIGATION, WHETHER THE ACTUAL TRIAL IS CONDUCTED IN THE FORM OF A
CLASS ACTION, AS A JOINT SUIT, OR AS A PRINCIPAL SUIT WITH ADDITIONAL
INTERVENORS.  /25/ 

SINCE THE IMPOSITION OF A TIME BAR WOULD NOT IN THIS CIRCUMSTANCE
PROMOTE THE PURPOSES OF THE STATUTE OF LIMITATIONS, THE TOLLING RULE WE
ESTABLISH HERE IS CONSISTENT BOTH WITH THE PROCEDURES OF RULE 23 AND
WITH THE PROPER FUNCTION OF THE LIMITATIONS STATUTE.  WHILE CRITICISMS
OF RULE 23 AND ITS IMPACT ON THE FEDERAL COURTS HAVE BEEN BOTH NUMEROUS
AND TRENCHANT, SEE, E.G., AMERICAN COLLEGE OF TRIAL LAWYERS, REPORT AND
RECOMMENDATIONS OF THE SPECIAL COMMITTEE ON RULE 23 OF THE FEDERAL
RULES OF CIVIL PROCEDURE (1972); H. FRIENDLY, FEDERAL JURISDICTION:  A
GENERAL VIEW 118 - 120 (1973); HANDLER, THE SHIFT FROM SUBSTANTIVE TO
PROCEDURAL INNOVATIONS IN ANTITRUST SUITS--THE TWENTY-THIRD ANNUAL
ANTITRUST REVIEW, 71 COL. L. REV. 1, 5 - 12 (1971); HANDLER, TWENTY
FOURTH ANNUAL ANTITRUST REVIEW, 72 COL. L. REV. 1, 34 - 42 (1972), THIS
INTERPRETATION OF THE RULE IS NONETHELESS NECESSARY TO INSURE
EFFECTUATION OF THE PURPOSES OF LITIGATIVE EFFICIENCY AND ECONOMY THAT
THE RULE IN ITS PRESENT FORM WAS DESIGNED TO SERVE. 

        III 

THE PETITIONERS CONTEND, HOWEVER, THAT IRRESPECTIVE OF THE POLICIES
INHERENT IN RULE 23 AND IN STATUTES OF LIMITATIONS, THE FEDERAL COURTS
ARE POWERLESS TO EXTEND THE LIMITATION PERIOD BEYOND THE PERIOD SET BY
CONGRESS BECAUSE THAT PERIOD IS A "SUBSTANTIVE" ELEMENT OF THE RIGHT
CONFERRED ON ANTITRUST PLAINTIFFS AND CANNOT BE EXTENDED OR RESTRICTED
BY JUDICIAL DECISION OR BY COURT RULE.  /26/  UNLIKE THE SITUATION
WHERE CONGRESS HAS BEEN SILENT AS TO THE PERIOD WITHIN WHICH FEDERAL
RIGHTS MUST BE ASSERTED, /27/  IN THE ANTITRUST FILED CONGRESS HAS
SPECIFIED A PRECISE LIMITATION PERIOD, AND FURTHER HAS PROVIDED FOR A
TOLLING PERIOD IN THE EVENT THAT GOVERNMENT LITIGATION IS INSTITUTED. 
THE INCLUSION OF THE LIMITATION AND THE TOLLING PERIOD, THE PETITIONERS
ASSERT, MAKES THE "SUBSTANTIVE"  STATUTE IMMUNE FROM EXTENSION BY
"PROCEDURAL" RULES.  THEY RELY IN LARGE PART ON THE COURT'S DECISION IN
THE HARRISBURG, 119 U.S. 199, IN WHICH IT WAS STATED, WITH RESPECT TO
STATE WRONGFUL-DEATH STATUTES, 

    "THE STATUTES CREATE A NEW LEGAL LIABILITY, WITH THE RIGHT TO A

  SUIT FOR ITS ENFORCEMENT, PROVIDED THE SUIT IS BROUGHT WITHIN

  TWELVE 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.  IT IS A CONDITION

  ATTACHED TO THE RIGHT TO SUE AT ALL."  ID., AT 214. 

IN THE HARRISBURG, HOWEVER, THE COURT DEALT WITH A SITUATION WHERE A
PLAINTIFF WHO WAS INVOKING THE MARITIME JURISDICTION OF A FEDERAL COURT
SOUGHT RELIEF UNDER A STATE STATUTE PROVIDING FOR SUBSTANTIVE
LIABILITY.  /28/  THE COURT HELD THAT WHEN A LITIGANT IN A FEDERAL
COURT ASSERTED A CAUSE OF ACTION BASED UPON A STATE STATUTE HE WAS
BOUND BY THE LIMITATION PERIOD CONTAINED WITHIN THAT STATUTE RATHER
THAN BY A FEDERAL TIME LIMIT.  CF. GUARANTY TRUST CO. V. YORK, 326 U.S.
99.  BUT THE COURT IN THE HARRISBURG DID NOT PURPORT TO DEFINE OR
RESTRICT FEDERAL JUDICIAL POWER TO DELINEATE CIRCUMSTANCES WHERE THE
APPLICABLE STATUTE OF LIMITATIONS WOULD BE TOLLED.  AS WE SAID IN
BURNETT, SUPRA, "WHILE THE EMBODIMENT OF A LIMITATION PROVISION IN THE
STATUTE CREATING THE RIGHT WHICH IT MODIFIES MIGHT CONCEIVABLY INDICATE
A LEGISLATIVE INTENT THAT THE RIGHT AND LIMITATION BE APPLIED TOGETHER
WHEN THE RIGHT IS SUED UPON IN A FOREIGN FORUM, THE FACT THAT THE RIGHT
AND LIMITATION ARE WRITTEN INTO THE SAME STATUTE DOES NOT INDICATE A
LEGISLATIVE INTENT AS TO WHETHER OR WHEN THE STATUTE OF LIMITATIONS
SHOULD BE TOLLED."  380 U.S., AT 427 N. 2.  THE PROPER TEST IS NOT
WHETHER A TIME LIMITATION IS "SUBSTANTIVE" OR "PROCEDURAL," BUT WHETHER
TOLLING THE LIMITATION IN A GIVEN CONTEXT IS CONSONANT WITH THE
LEGISLATIVE SCHEME.  /29/ 

IN RECOGNIZING JUDICIAL POWER TO TOLL STATUTES OF LIMITATION IN
FEDERAL COURTS WE ARE NOT BREAKING NEW GROUND.  IN BURNETT V. NEW YORK
CENTRAL R. CO., 380 U.S. 424, A RAILROAD EMPLOYEE CLAIMING RIGHTS UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. 51 ET SEQ., INITIALLY
BROUGHT SUIT IN A STATE COURT WITHIN THE THREE-YEAR TIME LIMITATION
SPECIFICALLY IMPOSED BY 6 OF THE ACT, 45 U.S.C. 56.  THE STATE
PROCEEDING WAS SUBSEQUENTLY DISMISSED BECAUSE OF IMPROPER VENUE. 
IMMEDIATELY AFTER THE DISMISSAL, BUT ALSO AFTER THE RUNNING OF THE
LIMITATION PERIOD, THE EMPLOYEE ATTEMPTED TO BRING SUIT IN FEDERAL
COURT.  REVERSING DETERMINATIONS OF THE DISTRICT COURT AND THE COURT OF
APPEALS THAT THE FEDERAL SUIT WAS TIME BARRED, THE COURT HELD THAT THE
COMMENCEMENT OF THE STATE SUIT FULFILLED THE POLICIES OF REPOSE AND
CERTAINTY INHERENT IN THE LIMITATION PROVISIONS AND TOLLED THE RUNNING
OF THE PERIOD.  SEE ALSO HERB V. PITCAIRN, 325 U.S. 77. 

SIMILARLY, IN CASES WHERE THE PLAINTIFF HAS REFRAINED FROM
COMMENCING SUIT DURING THE PERIOD OF LIMITATION BECAUSE OF INDUCEMENT
BY THE DEFENDANT, GLUS V. BROOKLYN EASTERN TERMINAL, 359 U.S. 231, OR
BECAUSE OF FRAUDULENT CONCEALMENT, HOLMBERG V. ARMBRECHT, 327 U.S. 392,
THIS COURT HAS NOT HESITATED TO FIND THE STATUTORY PERIOD TOLLED OR
SUSPENDED BY THE CONDUCT OF THE DEFENDANT.  IN GLUS, SUPRA, THE COURT
SPECIFICALLY REJECTED A CONTENTION BY THE DEFENDANT THAT WHEN "THE TIME
LIMITATION IS AN INTEGRAL PART OF A NEW CAUSE OF ACTION ... THAT CAUSE
IS IRRETRIEVABLY LOST AT THE END OF THE STATUTORY PERIOD."  359 U.S.,
AT 232.  TO THE CONTRARY, THE COURT FOUND THAT THE STRICT COMMAND OF
THE LIMITATION PERIOD PROVIDED IN THE FEDERAL STATUTE WAS TO BE
SUSPENDED BY CONSIDERATIONS "(DEEPLY ROOTED IN OUR JURISPRUDENCE." 
IBID. 

THESE CASES FULLY SUPPORT THE CONCLUSION THAT THE MERE FACT THAT A
FEDERAL STATUTE PROVIDING FOR SUBSTANTIVE LIABILITY ALSO SETS A TIME
LIMITATION UPON THE INSTITUTION OF SUIT DOES NOT RESTRICT THE POWER OF
THE FEDERAL COURTS TO HOLD THAT THE STATUTE OF LIMITATIONS IS TOLLED
UNDER CERTAIN CIRCUMSTANCES NOT INCONSISTENT WITH THE LEGISLATIVE
PURPOSE. 

        IV 

FINALLY, THE PETITIONERS URGE THAT THE COURT OF APPEALS' REVERSAL OF
THE DISTRICT COURT FOR FAILURE TO PERMIT INTERVENTION UNDER RULE
24(B)(2) WAS NONETHELESS IMPROPER BECAUSE THE DISTRICT COURT IN DENYING
SUCH PERMISSION WAS DOING NO MORE THAN EXERCISING A LEGAL DISCRETION
WHICH THE COURT OF APPEALS DID NOT FIND TO BE ABUSED.  /30/  THEY POINT
OUT THAT RULE 24(B) EXPLICITLY REFERS TO A DISTRICT JUDGE'S PERMISSION
TO INTERVENE AS AN EXERCISE OF DISCRETION, /31/  AND THAT THIS COURT
HAS HELD THAT "(THE EXERCISE OF DISCRETION IN A MATTER OF THIS SORT IS
NOT REVIEWABLE BY AN APPELLATE COURT UNLESS CLEAR ABUSE IS SHOWN...." 
ALLEN CALCULATORS, INC. V. NATIONAL CASH REGISTER CO., 322 U.S. 137,
142; SEE ALSO BROTHERHOOD OF RAILROAD TRAINMEN V. BALTIMORE & O. R.
CO., 331 U.S. 519, 524. 

IN DENYING PERMISSION TO INTERVENE IN THIS CASE, HOWEVER, JUDGE
PENCE DID NOT PURPORT TO WEIGH THE COMPETING CONSIDERATIONS IN FAVOR OF
AN AGAINST INTERVENTION, BUT SIMPLY FOUND THAT THE PROSPECTIVE
INTERVENORS WERE ABSOLUTELY BARRED BY THE STATUTE OF LIMITATIONS.  THIS
DETERMINATION WAS NOT AN EXERCISE OF DISCRETION, BUT RATHER A
CONCLUSION OF LAW WHICH THE COURT OF APPEALS CORRECTLY FOUND TO BE
ERRONEOUS.  THE JUDGMENT OF THE COURT OF APPEALS REVERSING THE DISTRICT
COURT'S ORDER DIRECTED THAT THE CASE BE REMANDED "FOR FURTHER
PROCEEDINGS UPON THE MOTIONS (TO INTERVENE)."  473 F.2D, AT 584. 
RATHER THAN REVIEWING AN EXERCISE OF DISCRETION, THE COURT OF APPEALS
MERELY DIRECTED THAT DISCRETION BE EXERCISED.  /32/

        V 

IT REMAINS TO DETERMINE THE PRECISE EFFECT THE COMMENCEMENT OF THE
CLASS ACTION HAD ON THE RELEVANT LIMITATION PERIOD.  SECTION 5(B) OF
THE CLAYTON ACT PROVIDES THAT THE RUNNING OF THE STATUTES OF
LIMITATIONS BE "SUSPENDED" BY THE INSTITUTION OF A GOVERNMENT ANTITRUST
SUIT BASED ON THE SAME SUBJECT MATTER.  THE SAME CONCEPT LEADS TO THE
CONCLUSION THAT THE COMMENCEMENT OF THE CLASS ACTION IN THIS CASE
SUSPENDED THE RUNNING OF THE LIMITATION PERIOD ONLY DURING THE PENDENCY
OF THE MOTION TO STRIP THE SUIT OF ITS CLASS ACTION CHARACTER.  THE
CLASS SUIT BROUGHT BY UTAH WAS FILED WITH 11 DAYS YET TO RUN IN THE
PERIOD AS TOLLED BY 5(B), AND THE INTERVENORS THUS HAD 11 DAYS AFTER
THE ENTRY OF THE ORDER DENYING THEM PARTICIPATION IN THE SUIT AS CLASS
MEMBERS IN WHICH TO MOVE FOR PERMISSION TO INTERVENE.  SINCE THEIR
MOTIONS WERE FILED ONLY EIGHT DAYS AFTER THE ENTRY OF JUDGE PENCE'S
ORDER, IT FOLLOWS THAT THE MOTIONS WERE TIMELY.     THE JUDGMENT OF THE
COURT OF APPEALS FOR THE NINTH CIRCUIT IS THEREFORE

              AFFIRMED. 

/1/  CONSENT DECREES BINDING EACH OF THE PETITIONERS OTHER THAN
AMERICAN PIPE & CONSTRUCTION CO. WERE ENTERED ON DECEMBER 8, 1967;
HOWEVER, IN AN EARLIER ACTION THE DISTRICT COURT DETERMINED THAT THE
"FINAL JUDGMENT"  ENTERED ON MAY 24, 1968, WAS FINAL AS TO ALL
PETITIONERS.  MARICOPA COUNTRY V. AMERICAN PIPE & CONSTRUCTION CO., 303
F.SUPP.  77, 87 (1969). 

/2/  SECTION 4B OF THE CLAYTON ACT, 15 U.S.C. 15B, PROVIDES IN
PERTINENT PART AS FOLLOWS: 

"ANY ACTION TO ENFORCE ANY CAUSE OF ACTION (UNDER THE ANTITRUST LAWS)
SHALL BE FOREVER BARRED UNLESS COMMENCED WITHIN FOUR YEARS AFTER THE
CAUSE OF ACTION ACCRUED." 

/3/  THE SECTION CONTAINS THE ADDITIONAL PROVISO THAT 

"WHENEVER THE RUNNING OF THE STATUTE OF LIMITATIONS ... IS SUSPENDED
HEREUNDER, ANY ACTION TO ENFORCE SUCH CAUSE OF ACTION SHALL BE FOREVER
BARRED UNLESS COMMENCED EITHER WITHIN THE PERIOD OF SUSPNESION OR
WITHIN FOUR YEARS AFTER THE CAUSE OF ACTION ACCRUED." 

/4/  THE PETITIONERS HAD EARLIER ARGUED THAT SINCE THERE WAS A FOUR
DAY HIATUS BETWEEN THE ENTRY OF JUDGMENT ON THE PLEAS OF NOLO
CONTENDERE IN THE CRIMINAL ACTIONS AND THE COMMENCEMENT OF THE
GOVERNMENT CIVIL SUIT, THE TOLLING PERIOD PROVIDED BY 5(B) SHOULD HAVE
BEGUN TO RUN FROM THE TERMINATION OF THE CRIMINAL PROCEEDINGS.  THIS
CONTENTION WAS REJECTED IN MARICOPA COUNTY V. AMERICAN PIPE &
CONSTRUCTION CO., SUPRA, AT 83 - 86, AND HAS NOT BEEN PRESSED HERE. 

/5/  SUBDIVISION (C)(1) OF RULE 23 PROVIDES: 

"AS SOON AS PRACTICABLE AFTER THE COMMENCEMENT OF AN ACTION BROUGHT
AS A CLASS ACTION, THE COURT SHALL DETERMINE BY ORDER WHETHER IT IS TO
BE SO MAINTAINED.  AN ORDER UNDER THIS SUBDIVISION MAY BE CONDITIONAL,
AND MAY BE ALTERED OR AMENDED BEFORE THE DECISION ON THE MERTIS." 

/6/  THE "PREREQUISITES TO A CLASS ACTION" LISTED IN SUBDIVISION (A)
OF RULE 23 ARE AS FOLLOWS: 

"ONE OR MORE MEMBERS OF A CLASS MAY SUE OR BE SUED AS REPRESENTATIVE
PARTIES ON BEHALF OF ALL ONLY IF (1) THE CLASS IS SO NUMEROUS THAT
JOINDER OF ALL MEMBERS IS IMPRACTICABLE, (2) THERE ARE QUESTIONS OF LAW
OR FACT COMMON TO THE CLASS, (3) THE CLAIMS OR DEFENSES OF THE
REPRESENTATIVE PARTIES ARE TYPICAL OF THE CLAIMS OR DEFENSES OF THE
CLASS, AND (4) THE REPRESENTATIVE PARTIES WILL FAIRLY AND ADEQUATELY
PROTECT THE INTERESTS OF THE CLASS." 

/7/  WHILE THE MEMORANDUM IN SUPPORT OF THE ORDER DENYING CLASS
ACTION STATUS WAS DATED DECEMBER 17, 1969, THE ORDER ITSELF WAS FILED
ON DECEMBER 4, 1969. 

/8/  INTERVENTION OF RIGHT.  UPON TIMELY APPLICATION ANYONE SHALL BE
PERMITTED TO INTERVENE IN AN ACTION:  (1) WHEN A STATUTE OF THE UNITED
STATES CONFERS AN UNCONDITIONAL RIGHT TO INTERVENE; OR (2) WHEN THE
APPLICANT CLAIMS AN INTEREST RELATING TO THE PROPERTY OR TRANSACTION
WHICH IS THE SUBJECT OF THE ACTION AND HE IS SO SITUATED THAT THE
DISPOSITION OF THE ACTION MAY AS A PRACTICAL MATTER IMPAIR OR IMPEDE
HIS ABILITY TO PROTECT THAT INTEREST, UNLESS THE APPLICANT'S INTEREST
IS ADEQUATELY REPRESENTED BY EXISTING PARTIES." 

/9/  "PERMISSIVE INTERVENTION.  UPON TIMELY APPLICATION ANYONE MAY
BE PERMITTED TO INTERVENE IN AN ACTION"  (1) WHEN A STATUTE OF THE
UNITED STATES CONFERS A CONDITIONAL RIGHT TO INTERVENE; OR (2) WHEN AN
APPLICANT'S CLAIM OR DEFENSE AND THE MAIN ACTION HAVE A QUESTION OF LAW
OR FACT IN COMMON.  WHEN A PARTY TO AN ACTION RELIES FOR GROUND OF
CLAIM OR DEFENSE UPON ANY STATUTE OR EXECUTIVE ORDER ADMINISTERED BY A
FEDERAL OR STATE GOVERNMENTAL OFFICER OR AGENCY OR UPON ANY REGULATION,
ORDER, REQUIREMENT, OR AGREEMENT ISSUED OR MADE PURSUANT TO THE STATUTE
OR EXECUTIVE ORDER, THE OFFICER OR AGENCY UPON TIMELY APPLICATION MAY
BE PERMITTED TO INTERVENE IN THE ACTION.  IN EXERCISING ITS DISCRETION
THE COURT SHALL CONSIDER WHETHER THE INTERVENTION WILL UNDULY DELAY OR
PREJUDICE THE ADJUDICATION OF THE RIGHTS OF THE ORIGINAL PARTIES." 

/10/  AS ORIGINALLY FILED, THE RESPONDENTS' MOTIONS TO INTERVENE
INCLUDED ALLEGATIONS BASED ON EVENTS OCCURRING DURING THE FOUR YEARS
PRIOR TO DECEMBER 12, 1969, THE DATE OF THE FILING OF THE MOTIONS.  THE
DENIAL OF LEAVE TO INTERVENE DID NOT APPLY TO THESE ALLEGATIONS, WHICH
WERE STILL TIMELY AS TO THE RESPONDENTS EVEN UNDER THE DISTRICT COURT'S
ORDER, AND THE ORDER WAS THUS NOT APPEALABLE AS A FINAL ORDER UNDER 28
U.S.C. 1291.  FURTHERMORE, IN THE SAME ORDER THE COURT DECLINED TO
CERTIFY THE QUESTION OF THE TOLLING EFFECT OF THE CLASS ACTION AS AN
APPEALABLE ORDER UNDER 28 U.S.C. 1292(B).  50 F. R. D. 99, 109 - 110. 
THE RESPONDENTS SUBSEQUENTLY AMENDED THEIR COMPLAINT TO CONFINE ITS
ALLEGATIONS TO EVENTS MORE THAN FOUR YEARS PRIOR TO THE FILING OF THEIR
MOTIONS, THEREBY MAKING THE COURT'S ORDER FINAL AS TO THEM AND
PERMITTING IMMEDIATE APPEAL UNDER 28 U.S.C. 1291. 

/11/  ORIGNIAL RULE 23 PROVIDED AS FOLLOWS: 

"(A) REPRESENTATION.  IF PERSONS CONSTITUTING A CLASS ARE SO
NUMEROUS AS TO MAKE IT IMPRACTICABLE TO BRING THEM ALL BEFORE THE
COURT, SUCH OF THEM, ONE OR MORE, AS WILL FAIRLY INSURE THE ADEQUATE
REPRESENTATION OF ALL MAY, ON BEHALF OF ALL, SUE OR BE SUED, WHEN THE
CHARACTER OF THE RIGHT SOUGHT TO BE ENFORCED FOR OR AGAINST THE CLASS
IS 

"(1) JOINT, OR COMMON, OR SECONDARY IN THE SENSE THAT THE OWNER OF A
PRIMARY RIGHT REFUSES TO ENFORCE THAT RIGHT AND A MEMBER OF THE CLASS
THEREBY BECOMES ENTITLED TO ENFORCE IT; 

"(2) SEVERAL, AND THE OBJECT OF THE ACTION IS THE ADJUDICATION OF
CLAIMS WHICH DO OR MAY AFFECT SPECIFIC PROPERTY INVOLVED IN THE ACTION;
OR 

"(3) SEVERAL, AND THERE IS A COMMON QUESTION OF LAW OR FACT
AFFECTING THE SEVERAL RIGHTS AND A COMMON RELIEF IS SOUGHT. 

"(B) SECONDARY ACTION BY SHAREHOLDERS.  IN AN ACTION BROUGHT TO
ENFORCE A SECONDARY RIGHT ON THE PART OF ONE OR MORE SHAREHOLDERS IN AN
ASSOCIATION, INCORPORATED OR UNINCORPORATED, BECAUSE THE ASSOCIATION
REFUSES TO ENFORCE RIGHTS WHICH MAY PROPERLY BE ASSERTED BY IT, THE
COMPLAINT SHALL BE VERIFIED BY OATH AND SHALL AVER (1) THAT THE
PLAINTIFF WAS A SHAREHOLDER AT THE TIME OF THE TRANSACTION OF WHICH HE
COMPLAINS OR THAT HIS SHARE THEREAFTER DEVOLVED ON HIM BY OPERATION OF
LAW AND (2) THAT THE ACTION IS NOT A COLLUSIVE ONE TO CONFER ON A COURT
OF THE UNITED STATES JURISDICTION OF ANY ACTION OF WHICH IT WOULD NOT
OTHERWISE HAVE JURISDICTION.  THE COMPLAINT SHALL ALSO SET FORTH WITH
PARTICULARITY THE EFFORTS OF THE PLAINTIFF TO SECURE FROM THE MANAGING
DIRECTORS OR TRUSTEES AND, IF NECESSARY, FROM THE SHAREHOLDERS SUCH
ACTION AS HE DESIRES, ANS THE REASONS FOR HIS FAILURE TO OBTAIN SUCH
ACTION OR THE REASONS FOR NOT MAKING SUCH EFFORT. 

"(C) DISMISSAL OR COMPROMISE.  A CLASS ACTION SHALL NOT BE DISMISSED
OR COMPROMISED WITHOUT THE APPROVAL OF THE COURT.  IF THE RIGHT SOUGHT
TO BE ENFORCED IS ONE DEFINED IN PARAGRAPH (1) OF SUBDIVISION (A) OF
THIS RULE NOTICE OF THE PROPOSED DISMISSAL OR COMPROMISE SHALL BE GIVEN
TO ALL MEMBERS OF THE CLASS IN SUCH MANNER AS THE COURT DIRECTS.  IF
THE RIGHT IS ONE DEFINED IN PARAGRAPHS (2) OR (3) OF SUBDIVISION (A)
NOTICE SHALL BE GIVEN ONLY IF THE COURT REQUIRES IT." 

/12/  SEE, E.G. KALVEN & ROSENFIELD, THE CONTEMPORARY FUNCTION OF
THE CLASS SUIT, 8 U. CHI.  L. REV. 684 (1941); DEVELOPMENTS IN THE LAW-
MULTIPARTY LITIGATION IN THE FEDERAL COURTS, 71,HARV.  L. REV. 874, 935
(1958); 2 W. BARRON & A. HOLTZOFF, FEDERAL PRACTICE & PROCEDURE 568 (C.
WRIGHT ED. 1961). 

/13/  SEE ADVISORY COMMITTEE'S NOTE TO PROPOSED RULE 23 OF RULES OF
CIVIL PROCEDURE, 28 U.S.C. APP., PP. 7765, 7768. 

/14/  SEE N. 5, SUPRA. 

/15/  SUBSECTION (B)(3) OF RULE 23, ALLOWING MAINTENANCE OF A CLASS
ACTION IN SITUATIONS GENERALLY ANALOGOUS TO THOSE COVERED BY THE
"SPURIOUS"  CLASS SUIT UNDER FORMER RULE 23, PROVIDES THAT AN ACTION
MAY BE MAINTAINED AS A CLASS ACTION "IF THE PREREQUISITES OF
SUBDIVISION (A) ARE SATISFIED,"  AND IN ADDITION: 

"THE COURT FINDS THAT THE QUESTIONS OF LAW OR FACT COMMON TO THE
MEMBERS OF THE CLASS PREDOMINATE OVER ANY QUESTIONS AFFECTING ONLY
INDIVIDUAL MEMBERS, AND THAT A CLASS ACTION IS SUPERIOR TO OTHER
AVAILABLE METHODS FOR THE FAIR AND EFFICIENT ADJUDICATION OF THE
CONTROVERSY.  THE MATTERS PERTINENT TO THE FINDINGS INCLUDE:  (A) THE
INTEREST OF MEMBERS OF THE CLASS IN INDIVIDUAL CONTROLLING THE
PROSECUTION OR DEFENSE OF SEPARATE ACTIONS; (B) THE EXTENT AND NATURE
OF ANY LITIGATION CONCERNING THE CONTROVERSY ALREADY COMMENCED BY OR
AGAINST MEMBERS OF THE CLASS; (C) THE DESIRABILITY OR UNDESIRABILITY OF
CONCENTRATING THE LITIGATION OF THE CLAIMS IN THE PARTICUALR FORUM; (D)
THE DIFFICULTIES LIKELY TO BE ENCOUNTERED IN THE MANAGEMENT OF A CLASS
ACTION." 

/16/  "IN ANY CLASS ACTION MAINTAINED UNDER SUBDIVISION (B)(3), THE
COURT SHALL DIRECT TO THE MEMBERS OF THE CLASS THE BEST NOTICE
PRACTICABLE UNDER THE CIRCUMSTANCES, INCLUDING INDIVIDUAL NOTICE TO ALL
MEMBERS WHO CAN BE IDENTIFIED THROUGH REASONABLE EFFORT.  THE NOTICE
SHALL ADVISE EACH MEMBER THAT (A) THE COURT WILL EXCLUDE HIM FROM THE
CLASS IF HE SO REQUESTS BY A SPECIFIED DATE; (B) THE JUDGMENT, WHETHER
FAVORABLE OR NOT, WILL INCLUDE ALL MEMBERS WHO DO NOT REQUEST
EXCLUSION; AND (C) ANY MEMBER WHO DOES NOT REQUEST EXCLUSION MAY, IF HE
DESIRES, ENTER AN APPEARANCE THROUGH HIS COUNSEL." 

/17/  "THE JUDGMENT IN AN ACTION MAINTAINED AS A CLASS ACTION UNDER
SUBDIVISION (B)(1) OR (B)(2), WHETHER OR NOT FAVORABLE TO THE CLASS,
SHALL INCLUDE AND DESCRIBE THOSE WHOM THE COURT FINDS TO BE MEMBERS OF
THE CLASS.  THE JUDGMENT IN AN ACTION MAINTAINED AS A CLASS ACTION
UNDER SUBDIVISION (C)(2) WAS DIRECTED, AND WHO HAVE NOT REQUESTED
EXCLUSION, AND WHOM THE COURT FINDS TO BE MEMBERS OF THE CLASS.  THE
JUDGMENT IN AN ACTION MAINTAINED AS A CLASS ACTION UNDER SUBDIVISION
(B)(3), WHETHER OR NOT FAVORABLE TO THE CLASS, SHALL INCLUDE AND
SPECIFY OR DESCRIBE THOSE TO WHOM THE NOTICE PROVIDED IN SUBDIVISION
(C)(2) WAS DIRECTED, AND WHO HAVE NOT REQUESTED EXCLUSION, AND WHOM THE
COURT FINDS TO BE MEMBERS OF THE CLASS." 

/18/  YORK V. GUARANTY TRUST CO., 143 F.2D 503 (CA2 1944), REV'D ON
OTHER GROUNDS, 326 U.S. 99; ESCOTT V. BARCHRIS CONSTRUCTION CORP., 340
F.2D 731 (CA2 1965); DEPINTO V. PROVIDENT SECURITY LIFE INSURANCE CO.,
323 F.2D 826 (CA9 1963); UNION CARBIDE & CARBON CORP. V. NISLEY, 300
F.2D 561 (CA10 1961). 

/19/  PENNSYLVANIA CO. FOR INSURANCES V. DECKERT, 123 F.2D 979 (CA3
1941); ATHAA V. DAY, 161 F.SUPP.  916 (COLO. 1958).  THE CASES ARISING
UNDER FORMER RULE 23 ARE DISCUSSED AND ANALYZED IN SIMEONE, PROCEDURAL
PROBLEMS OF CLASS SUITS, 60 MICH. L. REV. 905 (1962); NOTE, CLASS
ACTIONS UNDER NEW RULE 23 AND FEDERAL STATUTES OF LIMITATION:  A STUDY
OF CONFLICTING RATIONALE, 13 VILL.  L. REV. 370 (1968). 

/20/  THE COURTS THAT HAVE DEALT WITH THIS PROBLEM UNDER PRESENT
RULE 23 HAVE REACHED THIS CONCLUSION.  ESPLIN V. HIRSCHI, 402 F.2D 94
(CA10 1968); PHILADELPHIA ELEC.  CO. V. ANACONDA AM. BASS CO., 43 F. R.
D. 452 (ED PA. 1968). 

/21/  IN YORK V. GUARANTY TRUST CO., SUPRA, THE COURT OF APPEALS FOR
THE SECOND CIRCUIT PERMITTED JOINDER IN A "SPURIOUS" CLASS SUIT FOR ON
THE REASONING THAT TO RULE OTHERWISE WOULD CREATE A "TRAP FOR THE
UNWARY:  WHO MIGHT REFRAIN FROM INSTITUTING SUIT ON THE SUPPOSITION
THAT THEIR INTERESTS WERE REPRESENTED IN THE CLASS SUIT.  143 F.2D, AT
529.  AS A MEMBER OF THAT COURT SUBSEQUENTLY OBSERVED, THE CONTRARY
RULE COULD BE A "TRAP" ONLY FOR THOSE WHO WERE AWARE OF AND RELIED UPON
THE COMMENCEMENT OF THE CLASS SUIT.  ESCOTT V. BARCHRIS CONSTRICTION
CORP., 340 F.2D, AT 735 (FRIENDLY, J., CONCURRING).  SEE ALSO COMMENT,
SPURIOUS CLASS ACTIONS BASED UPON SECURITIES FRAUDS UNDER THE REVISED
FEDERAL RULES OF CIVIL PROCEDURE, 35 FORDHAM L. REV. 295, 308 - 309
(1966).  IN THE PRESENT LITIGATION, THE DISTRICT COURT FOUND THAT ONLY
SEVEN OF THE MORE THAN 60 INTERVENORS WERE AWARE OF AND RELIED ON THE
ATTEMPTED CLASS SUIT.  50 F. R. D., AT 101 AND N. 1. 

/22/  THE PETITION FOR CERTIORARI DID NOT, OF COURSE, PRESENT THE
QUESTION OF WHETHER INTERVENTION AS OF RIGHT UNDER RULE 24(A)(2) WAS
PROPERLY DENIED BY THE DISTRICT COURT, AND WE DO NOT REACH THAT
QUESTION.  OUR CONCLUSION AS TO THE EFFECT OF THE COMMENCEMENT OF A
CLASS SUIT ON TOLLING THE STATUTE OF LIMITATIONS AS TO THOSE WHO
SUBSEQUENTLY MOVE TO INTERVENE BY PERMISSION UNDER RULE 24(B)(2) WOULD
APPLY A FORTIORI TO INTERVENORS AS OF RIGHT UNDER TULE 24(A)(2). 

/23/  AS INDICATED, SUPRA, AT 543, JUDGE PENCE BASED HIS CONCLUSION
THAT THE NUMBER OF POTENTIAL MEMBERS WAS NOT SO LARGE AS TO MAKE
JOINDER IMPRACTICABLE ON INFERENCES FROM HIS PRIOR EXPERIENCE WITH
SIMILAR ANTITRUST LITIGATION AGAINST THE SAME DEFENDANTS.  NOT ONLY
WOULD A DISTRICT COURT'S ESTIMATE OF THE EXPECTED ATTRITION AMOUNG THE
CLASS OF PLAINTIFFS BE DIFFICULT FOR ANY INDIVIDUAL PLAINTIFF TO
PREDICT, BUT OTHER FEDERAL COURTS HAVE INDICATED THAT SUBSEQUENT
ATTRITION WILL NOT BE CONSIDERED AS A FACTOR AFFECTING NUMEROSITY UNDER
RULE 23(A)(1) WHEN CONSIDERED AT THE OUTSET OF THE CASE.  SEE, E.G.,
IOWA V. UNION ASPHALT & ROADOILS, INC., 281 F.SUPP.  391, 401 (SD IOWA
1968); 3B J. MOORE, FEDERAL PRACTICE PARA. 23.05, P. 23-279 (2D ED.). 
INDEED, ONE COMMENTATOR HAS OBSERVED THAT "(THE FEDERAL DECISIONS UNDER
ORIGINAL RULE 23(A) REFLECT ... CONTRARIETY OF OPINION AS TO THE
MEANING OF 'NUMEROUS.'"  ID., AT 23 - 272. 

/24/  THE ADVISORY COMMITTEE'S NOTE ON PROPOSED RULE 23 OBSERVES ON
THE ISSUE RESOLVED HERE ONLY THAT THE QUESTION "WHETHER THE INTERVENORS
IN THE NONCLASS ACTION SHALL BE PERMITTED TO CLAIM ... THE BENEFIT OF
THE DATE OF THE COMMENCEMENT OF THE ACTION FOR PURPOSES OF THE STATUTE
OF LIMITATIONS (IS) TO BE DECIDED BY REFERENCE TO THE LAWS GOVERNING
... LIMITATIONS AS THEY APPLY IN PARTICULAR CONTEXTS."  28 U.S.C. APP.,
P. 7767.     /25/  AS JUDGE FRIENDLY HAS NOTED, IN CERTAIN SITUATIONS
THE INTERVENORS MAY RAISE ISSUES NOT PRESENTED IN THE CLASS ACTION
COMPLAINT AND TO THAT EXTENT THE DEFENDANTS WILL NOT HAVE RECEIVED
NOTICE OF THE NATURE OF THE CLAIMS AGAINST THEM.  ESCOTT V. BARCHRIS
CONSTRUCTION CORP., 340 F.2D, AT 735 (CONCURRING OPINION).  THIS
PROBLEM, HOWEVER, WILL BE MINIMIZED WHEN, AS HERE, THE DISTRICT COURT
HAS ALREADY FOUND THAT THE NAMED PLAINTIFFS'  CLAIMS TYPIFY THOSE OF
THE CLASS.  FURTHERMORE, UNDER RULE 23(D)(3) "THE COURT MAY MAKE
APPROPRIATE ORDERS ... IMPOSING CONDITIONS ON ... INTERVENORS." 

/26/  THE ENABLING ACT EMPOWERING THE SUPREME COURT TO PROMULGATE
RULES OF PROCEDURE COMMANDS THAT "(SUCH RULES SHALL NOT ABRIDGE,
ENLARGE OR MODIFY ANY SUBSTANTIVE RIGHT...."  28 U.S.C. 2072. 

/27/  IN SUCH SITUATIONS THE FEDERAL COURTS HAVE GENERALLY LOOKED TO
LOCAL LAW AS THE SOURCE OF A FEDERAL LIMITATION PERIOD.  "APART FROM
PENAL ENACTMENTS, CONGRESS HAS USUALLY LEFT THE LIMITATION OF TIME FOR
COMMENCING ACTIONS UNDER NATIONAL LEGISLATION TO JUDICIAL
IMPLICATIONS.  AS TO ACTIONS AT LAW, THE SILENCE OF CONGRESS HAS BEEN
INTERPRETED TO MEAN THAT IT IS FEDERAL POLICY TO ADOPT THE LOCAL LAW OF
LIMITATION.  (CITATIONS OMITTED.)  THE IMPLIED ABSORPTION OF STATE
STATUTES OF LIMITATION WITHIN THE INTERSTICES OF THE FEDERAL ENACTMENTS
IS A PHASE OF FASHIONING REMEDIAL DETAILS WHERE CONGRESS HAS NOT SPOKEN
BUT LEFT MATTERS FOR JUDICIAL DETERMINATION WITHIN THE GENERAL
FRAMEWORK OF FAMILIAR LEGAL PRINCIPLES."  HOLMBERG V. ARMBRECHT, 327
U.S. 392, 395.  SEE AUTO WORKERS V. HOOSIER CORP., 383 U.S. 696.  BUT
SEE MCALLISTER V. MAGNOLIA PETROLEUM CO., 357 U.S. 221. 

/28/  THE PLAINTIFF IN THE HARRISBURG INITIALLY CLAIMED THAT FEDERAL
MARITIME LAW AFFORDED HIM A SUBSTANTIVE CAUSE OF ACTION FOR WRONGFUL
DEATH.  THE COURT HELD IN THAT CASE THAT THE FEDERAL MARITIME LAW DID
NOT EXTEND TO SUCH SUITS.  THIS HOLDING WAS OVERRULED IN MORAGNE V.
STATES MARINE LINES, INC., 398 U.S. 375. 

/29/  OUR CONCLUSION THAT A JUDICIAL TOLLING OF THE STATUTE OF
LIMITATIONS DOES NOT ABRIDGE OR MODIFY A SUBSTANTIVE RIGHT AFFORDED BY
THE ANTITRUST ACTS IS CONSISTENT WITH WHAT SCANT LEGISLATIVE HISTORY
THERE IS ON THE LIMITATION AND TOLLING PROVISIONS.  SECTIONS 4B AND
5(B) OF THE CLAYTON ACT WERE ADDED TO THE ANTITRUST LAWS IN 1955, LONG
AFTER THE ORIGINAL SUBSTANTIVE LIABILITIES WERE ESTABLISHED.  DURING
DEBATE A MEMBER OF THE HOUSE JUDICIARY COMMITTEE REPORTING THE BILL WAS
ASKED, "(AM I CORRECT IN ASSUMING THAT THIS LIMITATION PROVIDED BY THIS
AMENDMENT IS STRICTLY A PROCEDURAL LIMITATION AND HAS NOTHING TO DO
WITH SUBSTANCE?"  TO WHICH HE REPLIED:  "IT WAS THE SPECIFIC PURPOSE OF
THE COMMITTEE IN REPORTING THIS BILL TO IN NO WAY AFFECT THE
SUBSTANTIVE RIGHTS OF INDIVIDUAL LITIGANTS.  IT IS SIMPLY A PROCEDURAL
CHANGE AND SUGGESTED WITH THE THOUGHT OF SETTING UP A UNIFORM STATUTE
OF LIMITATIONS.  THAT IS THE SOLE PURPOSE."  101 CONG. REC. 5131 (1955)
(REMARKS OF REPS.  MURRAY AND QUIGLEY). 

/30/ THE DISSENTING JUDGE IN THE COURT OF APPEALS BASED HIS
CONCLUSION ON THIS GROUND.  473 F.2D, AT 584. 

/31/  RULE 24(B) CONCLUDES, "IN EXERCISING ITS DISCRETION (AS TO
WHETHER TO PERMIT INTERVENTION) THE COURT SHALL CONSIDER WHETHER THE
INTERVENTION WILL UNDULY DELAY OR PREJUDICE THE ADJUDICATION OF THE
RIGHTS OF THE ORIGINAL PARTIES." 

/32/  FURTHERMORE, THERE IS PERSUASIVE INTRINSIC EVIDENCE THAT JUDGE
PENCE RULED AGAINST THE RESPONDENTS ONLY ON THE ISSUE OF THE
APPLICABILITY OF THE STATUTE OF LIMITATIONS.  FIRST, HIS ORIGINAL
CONCLUSION THAT JOINDER WAS A MORE PRACTICABLE REMEDY, 49 F. R. D., AT
20, WOULD BE INCONGRUOUS IF IMMEDIATELY THEREAFTER HE ASSERTED THAT
INTERVENTION WAS, IN FACT, IMPRACTICABLE.  SECOND, AS NOTED PREVIOUSLY,
N. 10, SUPRA, THE DISTRICT COURT DID NOT DENY LEAVE TO INTERVENE AS TO
THOSE WHO CONFINED THE ALLEGATIONS OF THEIR COMPLAINTS TO EVENTS
OCCURRING LESS THAN FOUR YEARS PRIOR TO THE MOTIONS TO INTERVENE. 

MR. JUSTICE BLACKMUN, CONCURRING. 

I JOIN THE COURT'S OPINION AND CONCUR IN ITS JUDGMENT.  OUR
DECISION, HOWEVER, MUST NOT BE REGARDED AS ENCOURAGEMENT TO LAWYERS IN
A CASE OF THIS KIND TO FRAME THEIR PLEADINGS AS A CLASS ACTION,
INTENTIONALLY, TO ATTRACT AND SAVE MEMBERS OF THE PURPORTED CLASS WHO
HAVE SLEPT ON THEIR RIGHTS.  NOR DOES IT NECESSARILY GUARANTEE
INTERVENTION FOR ALL MEMBERS OF THE PURPORTED CLASS. 

AS THE COURT HAS INDICATED, THE PURPOSE OF STATUTES OF LIMITATIONS
IS TO PREVENT SURPRISES "THROUGH THE REVIVAL OF CLAIMS THAT HAVE BEEN
ALLOWED TO SLUMBER UNTIL EVIDENCE HAS BEEN LOST, MEMORIES HAVE FADED,
AND WITNESSES HAVE DISAPPEARED."  ORDER OF RAILROAD TELEGRAPHERS V.
RAILWAY EXPRESS AGENCY, 321 U.S. 342, 348 - 349 (1944).  UNDER OUR
DECISION TODAY, INTERVENORS AS OF RIGHT WILL BE PERMITTED TO PRESS
THEIR CLAIMS SUBJECT ONLY TO THE REQUIREMENT THAT THEY HAVE AN INTEREST
RELATING TO THE PROPERTY OR TRANSACTION AND BE IMPAIRED OR IMPEDED IN
THEIR ABILITY TO PROTECT THAT INTEREST.  FED. RULE CIV. PROC. 24(A). 
SUCH CLAIMS, THEREFORE, INVARIABLY WILL CONCERN THE SAME EVIDENCE,
MEMORIES, AND WITNESSES AS THE SUBJECT MATTER OF THE ORIGINAL CLASS
SUIT, AND THE DEFENDANT WILL NOT BE PREJUDICED BY LATER INTERVENTION,
SHOULD CLASS RELIEF BE DENIED.  PERMISSIVE INTERVENORS MAY BE BARRED,
HOWEVER, IF THE DISTRICT JUDGE, IN HIS DISCRETION, CONCLUDES THAT THE
INTERVENTION WILL "UNDULY DELAY OR OR PREJUDICE THE ADJUDICATION OF THE
RIGHTS OF THE ORIGINAL PARTIES."  FED. RULE CIV. PROC. 24(B).  THE
PROPER EXERCISE OF THIS DISCRETION WILL PREVENT THE TYPE OF ABUSE
MENTIONED ABOVE AND MIGHT PRESERVE A DEFENDANT WHOLE AGAINST PREJUDICE
ARISING FROM CLAIMS FOR WHICH HE HAS RECEIVED NO PRIOR NOTICE. 

THE PROVISION IN FED. RULE CIV. PROC. 23(C)(1), THAT AN ORDER
ALLOWING THE MAINTENANCE OF A SUIT AS A CLASS ACTION "MAY BE
CONDITIONAL, AND MAY BE ALTERED OR AMENDED BEFORE THE DECISION ON THE
MERITS," COULD BE VIEWED TO GENERATE UNCERTAINTY UNDER THE COURT'S
DECISION, FOR THE CLASS ASPECT MIGHT BE DISBANDED AFTER THE LITIGATION
HAS LONG BEEN UNDERWAY.  RULE 23(C)(1), OF COURSE, PROVIDES THAT THE
COURT SHALL DECIDE WHETHER A CLASS ACTION MAY BE MAINTAINED "(AS SOON
AS PRACTICABLE AFTER THE COMMENCEMENT OF AN ACTION."  THIS DECISION,
THEREFORE, WILL NORMALLY BE MADE EXPEDITIOUSLY.  AND ANY LATER
ALTERATION WITH RESPECT TO INTERVENTION IS SUBJECT TO THE DISCRETIONARY
ELEMENTS OF RULE 24(B), MENTIONED ABOVE, AND TO RULE 23(D)(3)'S
PROVISION THAT "THE COURT MAY MAKE APPROPRIATE ORDERS ... IMPOSING
CONDITIONS ... ON INTERVENORS." 

JESSE R. O'MALLEY ARGUED THE CAUSE FOR PETITIONERS. 

WITH HIM ON THE BRIEFS WERE GORDON JOHNSON, OLIVER F. GREEN, JR.,
JAMES O. SULLIVAN, WAYNE M. PITLUCK, JOHN J HANSON, ROBERT E. COOPER,
HALDOR T. BENSON, AND READ CARLOCK. 

GERALD R. MILLER, SPECIAL ASSISTANT ATTORNEY GENERAL OF UTAH, ARGUED
THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WERE VERNON B.
ROMNEY, ATTORNEY GENERAL, AND J. RAND HIRSHCI AND KENT SHEARER, SPECIAL
ASSISTANT ATTORNEYS GENERAL. 
..END :


















O'SHEA V. LITTLETON, 414 U.S. 488 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 72 - 953.  ARGUED OCTOBER 17, 1973--DECIDED JANUARY 15,

1974; 468 F.2D 389, REVERSED. 


    RESPONDENTS, 17 BLACK AND TWO WHITE RESIDENTS OF CAIRO,

  ILLINOIS, BROUGHT A CIVIL RIGHTS CLASS ACTION AGAINST

  PETITIONERS, A MAGISTRATE AND A CIRCUIT COURT JUDGE, WHO

  ALLEGEDLY ENGAGED UNDER COLOR OF STATE LAW, IN A CONTINUING

  PATTERN AND PRACTICE OF CONDUCT CONSISTING OF ILLEGAL

  BOND-SETTING, SENTENCING, AND JURY-FEE PRACTICES IN CRIMINAL

  CASES, WHICH ASSERTEDLY DEPRIVED RESPONDENTS AND MEMBERS OF THEIR

  CLASS OF THEIR RIGHTS UNDER THE CONSTITUTION AND 42 U.S.C. 1981 -

  1983, 1985.  THE DISTRICT COURT DISMISSED THE ACTION FOR WANT OF

  JURISDICTION TO ISSUE THE INJUNCTIVE RELIEF SOUGHT AND ON THE

  GROUND OF JUDICIAL IMMUNITY.  THE COURT OF APPEALS REVERSED,

  HOLDING THAT ISSUANCE OF INJUNCTIONS AGAINST JUDICIAL OFFICERS

  WAS NOT FORBIDDEN IF THEIR CONDUCT WAS INTENTIONALLY RACIALLY

  DISCRIMINATORY AGAINST A COGNIZABLE CLASS OF PERSONS.  ABSENT

  SUFFICIENT REMEDY AT LAW, IT WAS HELD THAT IF RESPONDENTS PROVED

  THEIR ALLEGATIONS, THE DISTRICT COURT SHOULD FASHION APPROPRIATE

  RELIEF TO ENJOIN PETITIONERS FROM DEPRIVING OTHERS OF THEIR

  CONSTITUTIONAL RIGHTS WHILE CARRYING OUT THEIR JUDICIAL DUTIES IN

  THE FUTURE.  HELD: 

     1.  THE COMPLAINT FAILS TO SATISFY THE THRESHOLD REQUIREMENT
OF

  ART. III OF THE CONSTITUTION THAT THOSE WHO SEEK TO INVOKE THE

  POWER OF FEDERAL COURTS MUST ALLEGE AN ACTUAL CASE OR

  CONTROVERSY, WHERE NONE OF THE NAMED PLAINTIFFS IS IDENTIFIED AS

  HIMSELF HAVING SUFFERED ANY INJURY IS IN ONLY THE MOST GENERAL

  TERMS, AND THERE ARE NO ALLEGATIONS THAT ANY RELEVANT STATE

  CRIMINAL STATUTE IS UNCONSTITUTIONAL ON ITS FACE OR AS APPLIED OR

  THAT PLAINTIFFS HAVE BEEN OR WILL BE IMPROPERLY CHARGED WITH

  VIOLATING CRIMINAL LAW.  PP. 493 - 499. 

     (A) IF NONE OF THE NAMED PLAINTIFFS PURPORTING TO REPRESENT A

  CLASS MEETS THE CASE-OR-CONTROVERSY REQUIREMENT, NONE MAY SEEK

  RELIEF ON BEHALF OF HIMSELF OR ANY OTHER MEMBER OF THE CLASS. 

PP. 494 - 495. 

     (B) THAT REQUIREMENT IS NOT SATISIFED BY GENERAL ASSERTIONS OR

  INFERENCES THAT IN THE COURSE OF THEIR ACTIVITIES RESPONDENTS

  WILL BE PROSECUTED FOR VIOLATING VALID CRIMINAL LAW.  P. 497 

     (C) WHERE IT CAN ONLY BE SPECULATED WHETHER RESPONDENTS WILL
BE

  ARRESTED FOR VIOLATING AN ORDINANCE OR STATE STATUTE,

  PARTICULARLY IN THE ABSENCE OF ALLEGATIONS THAT UNCONSTITUTIONAL

CRIMINAL STATUTES ARE BEING EMPLOYED TO DETER CONSTITUTIONALLY

  PROTECTED CONDUCT, AND RESPONDENTS HAVE NOT POINTED TO ANY

  IMMINENT PROSECUTIONS CONTEMPLATED AGAINST THEM SO THAT THEY DO

  NOT CLAIM ANY CONSTITUTIONAL RIGHT TO ENGAGE IN CONDUCT

  PROSCRIBED BY THEREFORE PRESUMABLY PERMISSIBLE STATE LAWS, OR

  THAT IT IS OTHERWISE THEIR INTENTION TO SO CONDUCT THEMSELVES,

  THE THREAT OF INJURY FROM THE ALLEGED COURSE OF CONDUCT THEY

  ATTACK IS TOO REMOTE TO SATISFY THE CASE-OR-CONTROVERSY

  REQUIREMENT AND PERMIT ADJUDICATION BY A FEDERAL COURT.  PP. 497

  - 498. 

2.  EVEN IF THE COMPLAINT WERE CONSIDERED TO PRESENT AN

EXISTING CASE OR CONTROVERSY, NO ADEQUATE BASIS FOR EQUITABLE

  RELIEF HAS BEEN STATED.  PP. 499 - 504. 

     (A) THE INJUNCTIVE RELIEF SOUGHT BY RESPONDENTS WOULD

  CONSTITUTE A MAJOR CONTINUING INTRUSION OF THE EQUITABLE POWER OF

  THE FEDERAL COURTS INTO THE DAILY CONDUCT OF STATE CRIMINAL

  PROCEEDINGS, AND WOULD SHARPLY CONFLICT WITH RECOGNIZED

  PRINCIPLES OF EQUITABLE RESTRAINT, YOUNGER V. HARRIS, 401 U.S.

  37.  PP. 499 - 502. 

     (B) RESPONDENTS ALSO FAILED TO ESTABLISH THE BASIC REQUISITES

  OF THE ISSUANCE OF EQUITABLE RELIEF--THE LIKELIHOOD OF

  SUBSTANTIAL AND IMMEDIATE IRREPARABLE INJURY, AND THE INADEQUACY

  OF REMEDIES AT LAW--IN VIEW OF THE CONJECTURAL NATURE OF THE

THREATENED INJURY TO WHICH RESPONDENTS ARE ALLEGEDLY SUBJECTED,

  AND WHERE THERE ARE AVAILABLE OTHER PROCEDURES, BOTH STATE AND

  FEDERAL, WHICH COULD PROVIDE RELIEF.  PP. 502 - 504. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, POWELL, AND REHNQUIST, JJ., JOINED.  BALCKMUN, J.,
FILED AN OPINION CONCURRING IN THE JUDGMENT AND IN PART I OF THE
COURT'S OPINION, POST, P. 504.  DOUGLAS, J., FILED A DISSENTING
OPINION, IN WHICH BRENNAN AND MARSHALL, JJ., JOINED, POST, P. 505. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS ARE 19 NAMED INDIVIDUALS WHO COMMENCED THIS CIVIL
RIGHTS ACTION, INDIVIDUALLY AND ON BEHALF OF A CLASS OF CITIZENS OF THE
CITY OF CAIRO, ILLINOIS, AGAINST THE STATE'S ATTORNEY FOR ALEXANDER
COUNTY, ILLINOIS, HIS INVESTIGATOR, THE POLICE COMMISSIONER OF CAIRO,
AND THE PETITIONERS HERE, MICHAEL O'SHEA AND DOROTHY SPOMER, MAGISTRATE
AND ASSOCIATE JUDGE OF THE ALEXANDER COUNTY CIRCUIT COURT,
RESPECTIVELY, ALLEGING THAT THEY HAVE INTENTIONALLY ENGAGED IN, AND ARE
CONTINUING TO ENGAGE IN, VARIOUS PATTERNS AND PRACTICES OF CONDUCT IN
THE ADMINISTRATION OF THE CRIMINAL JUSTICE SYSTEM IN ALEXANDER COUNTY
THAT DEPRIVE RESPONDENTS OF RIGHTS SECURED BY THE FIRST, SIXTH, EIGHTH,
THIRTEENTH, AND FOURTEENTH AMENDMENTS, AND BY 42 U.S.C. 1981, 1982,
1983, AND 1985.  THE COMPLAINT, AS AMENDED, ALLEGES THAT SINCE THE
EARLY 1960'S, BLACK CITIZENS OF CAIRO, TOGETHER WITH A SMALL NUMBER OF
WHITE PERSONS ON THEIR BEHALF, HAVE BEEN ACTIVELY, PEACEABLY AND
LAWFULLY SEEKING EQUALITY OF OPPORTUNITY AND TREATMENT IN EMPLOYMENT,
HOUSING, EDUCATION, PARTICIPATION IN GOVERNMENTAL DECISIONMAKING AND IN
ORDINARY DAY-TO-DAY REALTIONS WITH WHITE CITIZENS AND OFFICIALS OF
CAIRO, AND HAVE, AS AN IMPORTANT PART OF THEIR PROTEST, PARTICIPATED
IN, AND ENCOURAGED OTHERS TO PARTICIPATE IN, AN ECONOMIC BOYCOTT OF
CITY MERCHANTS WHO RESPONDENTS CONSIDER HAVE ENGAGED IN RACIAL
DISCRIMINATION.  ALLEGEDLY, THERE HAD RESULTED A GREAT DEAL OF TENSION
AND ANTAGONISM AMONG THE WHITE CITIZENS AND OFFICIALS OF CAIRO. 

THE INDIVIDUAL RESPONDENTS ARE 17 BLACK AND TWO WHITE RESIDENTS OF
CAIRO.  THE CLASS, OR CLASSES, WHICH THEY PURPORT TO REPRESENT ARE
ALLEGED TO INCLUDE "ALL THOSE WHO, ON ACCOUNT OF THEIR RACE OR CREED
AND BECAUSE OF THEIR EXERCISE OF FIRST AMENDMENT RIGHTS, HAVE (BEEN) IN
THE PAST AND CONTINUE TO BE SUBJECTED TO THE UNCONSTITUTIONAL AND
SELECTIVELY DISCRIMINATORY ENFORCEMENT AND ADMINISTRATION OF CRIMINAL
JUSTICE IN ALEXANDER COUNTY," AS WELL AS FINANCIALLY POOR PERSONS "WHO,
ON ACCOUNT OF THEIR POVERTY, ARE UNABLE TO AFFORD BAIL, OR ARE UNABLE
TO AFFORD COUNSEL AND JURY TRIALS IN CITY ORDINANCE VIOLATION CASES." 
THE COMPLAINT CHARGES THE STATE'S ATTORNEY, HIS INVESTIGATOR, AND THE
POLICE COMMISSIONER WITH A PATTERN AND PRACTICE OF INTENTIONAL RACIAL
DISCRIMINATION IN THE PERFORMANCE OF THEIR DUTIES, BY WHICH THE STATE
CRIMINAL LAWS AND PROCEDURES ARE DELIBERATELY APPLIED MORE HARSHLY TO
BLACK RESIDENTS OF CAIRO AND INADEQUATELY APPLIED TO WHITE PERSONS WHO
VICTIMIZE BLACKS, TO DETER RESPONDENTS FROM ENGAGING IN THEIR LAWFUL
ATTEMPT OT ACHIEVE EQUALITY.  SPECIFIC SUPPORTING EXAMPLES OF SUCH
CONDUCT INVOLVING SOME OF THE INDIVIDUAL RESPONDENTS ARE DETAILED IN
THE COMPLAINT AS TO THE STATE'S ATTORNEY AND HIS INVESTIGATOR. 

WITH RESPECT TO THE PETITIONERS, THE COUNTY MAGISTRATE AND JUDGE, A
CONTINUING PATTERN AND PRACTICE OF CONDUCT, UNDER COLOR OF LAW, IS
ALLEGED TO HAVE DENIED AND TO CONTINUE TO DENY THE CONSTITUTIONAL
RIGHTS OF RESPONDENTS AND MEMBERS OF THEIR CLASS IN THREE RESPECTS:
(1) PETITIONERS SET BOND IN CRINIMAL CASES ACCORDING TO AN UNOFFICIAL
BOND SCHEDULE WITHOUT REGARD TO THE FACTS OF A CASE OR CIRCUMSTANCES OF
AN INDIVIDUAL DEFENDANT IN VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS; (2) "ON INFORMATION AND BELIEF" THEY SET SENTENCES HIGHER
AND IMPOSE HARSHER CONDITIONS FOR RESPONDENTS AND MEMBERS OF THEIR
CLASS THAN FOR WHITE PERSONS, AND (3) THEY REQUIRE RESPONDENTS AND
MEMBERS OF THEIR CLASS WHEN CHARGED WITH VIOLATIONS OF CITY ORDINANCES
WHICH CARRY FINES AND POSSIBLE JAIL PENALTIES IF THE FINE CANNOT BE
PAID, TO PAY FOR A TRIAL BY JURY IN VIOLATION OF CITY ORDINANCES WHICH
CARRY FINES AND POSSIBLE JAIL PENALTIES IF THE FINE CANNOT BE PAID, TO
PAY FOR A TRIAL BY JURY IN VIOLATION OF THE SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENTS.  EACH OF THESE CONTINUING PRACTICES IS ALLEGED
TO HAVE BEEN CARRIED OUT INTENTIONALLY TO DEPRIVE RESPONDENTS AND THEIR
CLASS OF THE PROTECTIONS OF THE COUNTY CRIMINAL JUSTICE SYSTEM AND TO
DETER THEM FROM ENGAGING IN THEIR BOYCOTT AND SIMILAR ACTIVITIES.  THE
COMPLAINT FURTHER ALLEGES THAT THERE IS NO ADEQUATE REMEDY AT LAW AND
REQUESTS THAT THE PRACTICES BE ENJOINED.  NO DAMAGE WERE SOUGHT AGAINST
THE PETITIONERS IN THIS CASE, NOR WERE ANY SPECIFIC INSTANCES INVOLVING
THE INDIVIDUAL NAMED RESPONDENTS SET FORTH IN THE CLAIM AGAINST THESE
JUDICIAL OFFICERS. 

THE DISTRICT COURT DISMISSED THE CASE FOR WANT OF JURISDICTION TO
ISSUE THE INJUNCTIVE RELIEF PRAYED FOR AND ON THE GROUND THAT
PETITIONERS WERE IMMUNE FROM SUIT WITH RESPECT TO ACTS DONE IN THE
COURSE OF THEIR JUDICIAL DUTIES.  THE COURT OF APPEALS REVERSED,
HOLDING THAT PIERSON V. RAY, 386 U.S. 547, 554 (1967), ON WHICH THE
DISTRICT COURT RELIED, DID NOT FORBID THE ISSUANCE OF INJUNCTIONS
AGAINST JUDICIAL OFFICERS IF IT IS ALLEGED AND PROVED THAT THEY HAVE
KNOWINGLY ENGAGED IN CONDUCT INTENDED TO DISCRIMINATE AGAINST A
COGNIZABLE CLASS OF PERSONS ON THE BASIS OF RACE.  ABSENT SUFFICIENT
REMEDY AT LAW, THE COURT OF APPEALS RULED THAT IN THE EVENT RESPONDENTS
PROVED THEIR ALLEGATIONS, THE DISTRICT COURT SHOULD PROCEED TO FASHION
APPROPRIATE INJUNCTIVE RELIEF TO PREVENT PETITIONERS FROM DEPRIVING
OTHERS OF THEIR CONSTITUTIONAL RIGHTS IN THE COURSE OF CARRYING OUT
THEIR JUDICIAL DUTIES IN THE FUTURE.  /1/  WE GRANTED CERTIORARI.  411
U.S. 915 (1973). 

        I 

WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS.  THE COMPLAINT
FAILED TO SATISFY THE THRESHOLD REQUIREMENT IMPOSED BY ART. III OF THE
CONSTITUTION THAT THOSE WHO SEEK TO INVOKE THE POWER OF FEDERAL COURTS
MUST ALLEGE AN ACTUAL CASE OR CONTROVERSY.  FLAST V. COHEN, 392 U.S.
83, 94 - 101 (1968); JENKINS V. MCKEITHEN, 395 U.S. 411, 421 - 425
(1969) (OPINION OF MARSHALL, J.).  PLAINTIFFS IN THE FEDERAL COURTS
"MUST ALLEGE SOME THREATENED OR ACTUAL INJURY RESULTING FROM THE
PUTATIVELY ILLEGAL ACTION BEFORE A FEDERAL COURT MAY ASSUME
JURISDICTION."  LINDA R. S. V. RICHARD D., 410 U.S. 614, 617 (1973). 
/2/  THERE MUST BE A "PERSONAL STAKE IN THE OUTCOME" SUCH AS TO "ASSURE
THAT CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF ISSUES
UPON WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULT
CONSTITUTIONAL QUESTIONS."  BAKER V. CARR, 360 U.S. 186, 204 (1962). 
NOR IS THE PRINCIPLE DIFFERENT WHERE STATUTORY ISSUES ARE RAISED.  CF.
UNITED STATES V. SCRAP, 412 U.S. 669, 687 (1973).  ABSTRACT INJURY IS
NOT ENOUGH.  IT MUST BE ALLEGED THAT THE PLAINTIFF "HAS SUSTAINED OR IS
IMMEDIATELY IN DANGER OF SUSTAINING SOME DIRECT INJURY" AS THE RESULT
OF THE CHALLENGED STATUTE OR OFFICIAL CONDUCT.  MASSACHUSETTS V.
MELLON, 262 U.S. 447, 488 (1923).  THE INJURY OR THREAT OF INJURY MUST
BE BOTH "REAL AND IMMEDIATE," NOT "CONJECTURAL"  OR "HYPOTHETICAL." 
GOLDEN V. ZWICKLER, 394 U.S. 103, 109 - 110 (1969); MARYLAND CASUALTY
CO. V. PACIFIC COAL & OIL CO., 312 U.S. 270, 273 (1941); UNITED PUBLIC
WORKERS V. MITCHELL, 330 U.S. 75, 89 - 91 (1947).  MOREOVER, IF NONE OF
THE NAMED PLAINTIFFS PURPORTING TO REPRESENT A CLASS ESTABLISHES THE
REQUISITE OF A CASE OR CONTROVERSY WITH THE DEFENDANTS, NONE MAY SEEK
RELIEF ON BEHALF OF HIMSELF OR ANY OTHER MEMBER OF THE CLASS.  /3/
BAILEY V. PATTERSON, 369 U.S. 31, 32 - 33 (1962); INDIANA EMPLOYMENT
DIVISION V. BURNEY, 409 U.S. 540 (1973).  SEE 3B J. MOORE, FEDERAL
PRACTIVE, 23.10 - 1, N. 8 (2D ED. 1971). 

IN THE COMPLAINT THAT BEGAN THIS ACTION, THE SOLE ALLEGATIONS OF
INJURY ARE THAT PETITIONERS "HAVE ENGAGED IN AND CONTINUE TO ENGAGE IN,
A PATTERN AND PRACTICE OF CONDUCT ... ALL OF WHICH HAS DEPRIVED AND
CONTINUES TO DEPRIVE PLAINTIFFS AND MEMBERS OF THIER CLASS OF THEIR"
CONSTITUTIONAL RIGHTS AND, AGAIN, THAT PETITIONERS "HAVE DENIED AND
CONTINUE TO DENY TO PLAINTIFFS AND MEMBERS OF THEIR CLASS THEIR
CONSTITUTIONAL RIGHTS" BY ILLEGAL BOND-SETTING, SENTENCING, AND JURY
FEE PRACTICES.  NONE OF THE NAMED PLAINTIFFS IS IDENTIFIED AS HIMSELF
HAVING SUFFERED ANY INJURY IN THE MANNER SPECIFIED.  IN SHARP CONTRAST
TO THE CLAIM FOR RELIEF AGAINST THE STATE'S ATTORNEY WHERE SPECIFIC
INSTANCES OF MISCONDUCT WITH RESPECT TO PARTICULAR INDIVIDUALS ARE
ALLEGED, THE CLAIM AGAINST PETITIONERS ALLEGES INJURY IN ONLY THE MOST
GENERAL TERMS.  AT ORAL ARGUMENT, RESPONDENTS'  COUNSEL STATED THAT
SOME OF THE NAMED PLAINTIFFS-RESPONDENTS, WHO COULD BE IDENTIFIED BY
NAME IF NECESSARY, HAD ACTUALLY BEEN DEFENDANTS IN PROCEEDINGS BEFORE
PETITIONERS AND HAD SUFFERED FROM THE ALLEGED UNCONSTITUTIONAL
PRACTICES.  /4/  PAST EXPOSURE TO ILLEGAL CONDUCT DOES NOT IN ITSELF
SHOW A PRESENT CASE OR CONTROVERSY REGARDING INJUNCTIVE RELIEF,
HOWEVER, IF UNACCOMPANIED BY ANY CONTINUING, PRESENT ADVERSE EFFECTS. 
NEITHER THE COMPLAINT NOR RESPONDENTS' COUNSEL SUGGESTED THAT ANY OF
THE NAMED PLAINTIFFS AT THE TIME THE COMPLAINT WAS FILED WERE
THEMSELVES SERVING AN ALLEGEDLY ILLEGAL SENTENCE OR WERE ON TRIAL OR
AWAITING TRIAL BEFORE PETITIONERS.  INDEED, IF ANY OF THE RESPONDENTS
WERE THEN SERVING AN ASSERTEDLY UNLAWFUL SENTENCE, THE COMPLAINT WOULD
INAPPROPRIATELY BE SEEKING RELIEF FROM OR MODIFICATION OF CURRENT,
EXISTING CUSTODY.  SEE PREISER V. RODRIQUEZ, 411 U.S. 475 (1973). 
FURTHERMORE, IF ANY WERE THEN ON TRIAL OR AWAITING TRIAL IN STATE
PROCEEDINGS, THE COMPLAINT WOULD BE SEEKING INJUNCTIVE RELIEF THAT A
FEDERAL COURT SHOULD NOT PROVIDE.  YOUNGER V. HARRIS, 401 U.S. 37
(1971); SEE ALSO PART II, INFRA.  WE THUS DO NOT STRAIN TO READ
INAPPROPRIATE MEANING INTO THE CONCLUSORY ALLEGATIONS OF THIS
COMPLAINT. 

OF COURSE, PAST WRONGS ARE EVIDENCE BEARING ON WHETHER THERE IS A
REAL AND IMMEDIATE THREAT OF REPEATED INJURY.  BUT HERE THE PROSPECT OF
FUTURE INJURY RESTS ON THE LIKELIHOOD THAT RESPONDENTS WILL AGAIN BE
ARRESTED FOR AND CHARGED WITH VIOLATIONS OF THE CRIMINAL LAW AND WILL
AGAIN BE SUBJECTED TO BOND PROCEEDINGS, TRIAL, OR SENTENCING BEFORE
PETITIONERS.  IMPORTANT TO THIS ASSESSMENT IS THE ABSENCE OF
ALLEGATIONS THAT ANY RELEVANT CRIMINAL STATUTE OF THE STATE OF ILLINOIS
IS UNCONSTITUTIONAL ON ITS FACE OR AS APPLIED OR THAT RESPONDENTS HAVE
BEEN OR WILL BE IMPROPERLY CHARGED WITH VIOLATING CRIMINAL LAW.  IF THE
STATUTES THAT MIGHT POSSIBLY BE ENFORCED AGAINST RESPONDENTS ARE VALID
LAWS, AND IF CHARGES UNDER THESE STATUTES ARE NOT IMPROVIDENTLY MADE OR
PRESSED, THE QUESTION BECOMES WHETHER ANY PERCEIVED THREAT TO
RESPONDENTS IS SUFFICIENTLY REAL AND IMMEDIATE TO SHOW AN EXISTING
CONTROVERSY SIMPLY BECAUSE THEY ANTICIPATE VIOLATING LAWFUL CRIMINAL
STATUTES AND BEING THIED FOR THEIR OFFENSES, IN WHICH EVENT THEY MAY
APPEAR BEFORE PETITIONERS AND, IF THEY DO, WILL BE AFFECTED BY THE
ALLEGEDLY ILLEGAL CONDUCT CHARGED.  APPARENTLY, THE PROPOSITION IS THAT
IF RESPONDENTS PROCEED TO VIOLATE AN UNCHALLENGED LAW AND IF THEY ARE
CHARGED, HELD TO ANSWER, AND TRIED IN ANY PROCEEDINGS BEFORE
PETITIONERS.  THEY WILL BE SUBJECTED TO THE DISCRIMINATORY PRACTICES
THAT PETITIONERS ARE ALLEGED TO HAVE FOLLOWED.  BUT IT SEEMS TO US THAT
ATTEMPTING TO ANTICIPATE WHETHER AND WHEN THESE RESPONDENTS WILL BE
CHARGED WITH CRIME AND WILL BE MADE TO APPEAR BEFORE EITHER PETITIONER
TAKES US INTO THE AREA OF SPECULATION AND CONJECTURE.  SEE YOUNGER V.
HARRIS, SUPRA, AT 41 - 42.  THE NATURE OF RESPONDENTS'  ACTIVITIES IS
NOT DESCRIBED IN DETAIL AND NO SPECIFIC THREATS ARE ALLEGED TO HAVE
BEEN MADE AGAINST THEM.  ACCEPTING THAT THEY ARE DEEPLY INVOLVED IN A
PROGRAM TO ELIMINATE RACIAL DISCRIMINATION IN CAIRO AND THAT TENSIONS
ARE HIGH, WE ARE NONETHELESS UNABLE TO CONCLUDE THAT THE CASE-OR
CONTROVERSY REQUIREMENT IS SATISIFED BY GENERAL ASSERTIONS OR
INFERENCES THAT IN THE COURSE OF THEIR ACTIVITIES RESPONDENTS WILL BE
PROSECUTED FOR VIOLATING VALID CRIMINAL LAWS.  WE ASSUME THAT
RESPONDENTS WILL CONDUCT THEIR ACTIVITIES WITHIN THE LAW AND SO AVOID
PROSECTUION AND CONVICTION AS WELL AS EXPOSURE TO THE CHALLENGED COURSE
OF CONDUCT SAID TO BE FOLLOWED BY PETITIONERS. 

AS IN GOLDEN V. ZWICKLER, 394 U.S. 103 (1969), WE DOUBT THAT THERE
IS "'SUFFICIENT IMMEDICY AND REALITY'" TO RESPONDENTS' ALLEGATIONS OF
FUTURE INJURY TO WARRANT INVOCATION OF THE JURISDICTION OF THE DISTRICT
COURT.  THERE, "IT WAS WHOLLY CONJECTURAL THAT ANOTHER OCCASION MIGHT
ARISE WHEN ZWICKLER MIGHT BE PROSECUTED FOR DISTRIBUTING THE HANDBILLS
REFERRED TO IN THE COMPLAINT,"  ID., AT 109.  HERE WE CAN ONLY
SPECULATE WHETHER RESPONDENTS WILL BE ARRESTED, EITHER AGAIN OR FOR THE
FIRST TIME, FOR VIOLATING A MUNICIPAL ORDINANCE OR A STATE STATUTE,
PARTICULARLY IN THE ABSENCE OF ANY ALLEGATIONS THAT UNCONSTITUTIONAL
CRIMINAL STATUTES ARE BEING EMPLOYED TO DETER CONSTITUTIONALLY
PROTECTED CONDUCT.  CF. PEREZ V. LEDESMA, 401 U.S. 82, 101 - 102 (1971)
(OPINION OF BRENNAN, J.).  EVEN THOUGH ZWICKLER ATTACKED A SPECIFIC
STATUTE UNDER WHICH HE HAD PREVIOUSLY BEEN PROSECUTED, THE THREAT OF A
NEW PROSECUTION WAS NOT SUFFICIENTLY IMMINENT TO SATISFY THE
JURISDICTIONAL REQUIREMENTS OF THE FEDERAL COURTS.  SIMILARLY,
RESPONDENTS HERE HAVE NOT POINTED TO ANY IMMINENT PROSECUTIONS
CONTEMPLATED AGAINST ANY OF THEIR NUMBER AND THEY NATURALLY DO NOT
SUGGEST THAT ANY ONE OF THEM EXPECTS TO VIOLATE VALID CRIMINAL LAWS. 
YET THEIR VULNERABILITY TO THE ALLEGED THREATENED INJURY FROM WHICH
RELIEF IS SOUGHT IS NECESSARILY CONTINGENT UPON THE BRINGING OF
PROSECUTIONS AGAINST ONE OR MORE OF THEM.  UNDER THESE CIRCUMSTANCES,
WHERE RESPONDENTS DO NOT CLAIM ANY CONSTITUTIONAL RIGHT TO ENGAGE IN
CONDUCT PROSCRIBED BY THEREFORE PRESUMABLY PERMISSIBLE STATE LAWS, OR
INDICATE THAT IT IS OTHERWISE THEIR INTENTION TO SO CONDUCT THEMSELVES,
THE THREAT OF INJURY FROM THE ALLEGED COURSE OF CONDUCT THEY ATTACK IS
SIMPLY TOO REMOTE TO SATISFY THE CASE-OR-CONTROVERSY REQUIREMENT AND
PERMIT ADJUDICATION BY A FEDERAL COURT.     IN BOYLE V. LANDRY, 401
U.S. 77, 81 (1971), THE COURT ORDERED A COMPLAINT DISMISSED FOR
INSUFFICIENCY OF ITS ALLEGATIONS WHERE THERE WAS NO BASIS FOR INFERRING
"THAT ANY ONE OR MORE OF THE CITIZENS WHO BROUGHT THIS SUIT IS IN ANY
JEOPARDY OF SUFFERING IRREPARABLE INJURY IF THE STATE IS LEFT FREE TO
PROSECUTE UNDER THE INTIMIDATION STATUTE IN THE NORMAL MANNER."  THE
COURT EXPRESSED THE VIEW THAT "THE NORMAL COURSE OF STATE CRIMINAL
PORSECUTIONS CANNOT BE DISRUPTED OR BLOCKED ON THE BASIS OF CHARGES
WHICH IN THE LAST ANALYSIS AMOUNT TO NOTHING MORE THAN SPECULATION
ABOUT THE FUTURE."  IBID.  A SIMILAR ELEMENT OF UNCERTAINTY ABOUT
WHETHER THE ALLEGED INJURY WILL BE LIKELY TO OCCUR IS PRESENT IN THIS
CASE, AND A SIMILAR RELUCTANCE TO INTERFERE WITH THE NORMAL OPERATION
OF STATE ADMINISTRATION OF ITS CRIMINAL LAWS IN THE MANNER SOUGHT BY
RESPONDENTS STRENGTHENS THE CONCLUSION THAT THE ALLEGATIONS IN THIS
CONPLAINT ARE TOO INSUBSTANTIAL TO WARRANT FEDERAL ADJUDICATION OF THE
MERITS OF RESPONDENTS' CLAIM. 

        II 

THE FOREGOING CONSIDERATIONS OBVIOUSLY SHADE INTO THOSE DETERMINING
WHETHER THE COMPLAINT STATES A SOUND BASIS FOR EQUITABLE RELIEF; AND
EVEN IF WE WERE INCLINED TO CONSIDER THE COMPLAINT AS PRESENTING AN
EXISTING CASE OR CONTROVERSY, WE WOULD FIRMLY DISAGREE WITH THE COURT
OF APPEALS THAT AN ADEQUATE BASIS FOR EQUITABLE RELIEF AGAINST
PETITIONERS HAD BEEN STATED.  THE COURT HAS RECENTLY REAFFIRMED THE
"BASIC DOCTRINE OF EQUITY JURISPRUDENCE THAT COURTS OF EQUITY SHOULD
NOT ACT, AND PARTICULARLY SHOULD NOT ACT TO RESTRAIN A CRIMINAL
PROSECUTION, WHEN THE MOVING PARTY HAS AN ADEQUATE REMEDY AT LAW AND
WILL NOT SUFFER IRREPARABLE INJURY IF DENIED EQUITABLE RELIEF." 
YOUNGER V. HARRIS, 401 U.S. 37, 43 - 44 (1971).  ADDITIONALLY,
RECOGNITION OF THE NEED FOR A PROPER BALANCE IN THE CONCURRENT
OPERATION OF FEDERAL AND STATE COURTS COUNSELS RESTRAINT AGAINST THE
ISSUANCE OF INJUNCTIONS AGAINST STATE OFFICERS ENGAGED IN THE
ADMINISTRATION OF THE STATE'S CRIMINAL LAWS IN THE ABSENCE OF A SHOWING
OF IRREPARABLE INJURY WHICH IS "'BOTH GREAT AND IMMEDIATE.'"  ID., AT
46.  SEE, E.G., FENNER V. BOYKIN, 271 U.S. 240 (1926); DOUGLAS V. CITY
OF JEANNETTE, 319 U.S. 157 (1943).  IN HOLDING THAT 42 U.S.C. 1983 IS
AN ACT OF CONGRESS THAT FALLS WITHIN THE "EXPRESSLY AUTHORIZED"
EXCEPTION TO THE ABSOLUTE BAR AGAINST FEDERAL INJUNCTIONS DIRECTED AT
STATE COURT PROCEEDINGS PROVIDED BY 28 U.S.C. 2283, THE COURT EXPRESSLY
OBSERVED THAT IT DID NOT INTEND TO "QUESTION OR QUALIFY IN ANY WAY THE
PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM THAT MUST RESTRAIN A
FEDERAL COURT WHEN ASKED TO ENJOIN A STATE COURT PROCEEDING."  MITCHUM
V. FOSTER, 407 U.S. 225, 243 (1972).  THOSE PRINCIPLES PRECLUDE
EQUITABLE INTERVENTION IN THE CIRCUMSTANCES PRESENT HERE. 

RESPONDENTS DO NOT SEEK TO STRIKE DOWN A SINGLE STATE STATUTE,
EITHER ON ITS FACE OR AS APPLIED; NOR DO THEY SEEK TO ENJOIN ANY
CRIMINAL PROSECUTIONS THAT MIGHT BE BROUGHT UNDER A CHALLENGED CRIMINAL
LAW.  IN FACT, RESPONDENTS APPARENTLY CONTEMPLATE THAT PROSECUTIONS
WILL BE BROUGHT UNDER SEEMINGLY VALID STATE LAWS, WHAT THEY SEEK IS AN
INJUNCTION AIMED AT CONTROLLING OR PREVENTING THE OCCURRENCE OF
SPECIFIC EVENTS THAT MIGHT TAKE PLACE IN THE COURSE OF FUTURE STATE
CRIMINAL TRIALS.  THE ORDER THE COURT OF APPEALS THOUGHT SHOULD BE
AVAILABLE IF RESPONDENTS PROVED THEIR ALLEGATIONS WOULD BE OPERATIVE
ONLY WHERE PERMISSIBLE STATE PROSECUTIONS ARE PENDING AGAINST ONE OR
MORE OF THE BENEFICIARIES OF THE INJUNCTION.  APPARENTLY THE ORDER
WOULD CONTEMPLATE INTERRUPTION OF STATE PROCEEDINGS TO ADJUDICATE
ASSERTIONS OF NONCOMPLIANCE BY PETITIONERS.  THIS SEEMS TO US NOTHING
LESS THAN AN ONGOING FEDERAL AUDIT OF STATE CRIMINAL PROCEEDINGS WHICH
WOULD INDIRECTLY ACCOMPLISH THE KIND OF INTERFERENCE THAT YOUNGER V.
HARRIS, SUPRA, AND RELATED CASES SOUGHT TO PREVENT. 

A FEDERAL COURT SHOULD NOT INTERVENE TO ESTABLISH THE BASIS FOR
FUTURE INTERVENTION THAT WOULD BE SO INTRUSIVE AND UNWORKABLE.  IN
CONCLUDING THAT INJUNCTIVE RELIEF WOULD BE AVAILABLE IN THIS CASE
BECAUSE IT WOULD NOT INTERFERE WITH PROSECUTIONS TO BE COMMENCED UNDER
CHALLENGED STATUTES, THE COURT OF APPEALS MISCONCEIVED THE UNDERLYING
BASIS FOR WITHHOLDING FEDERAL EQUITABLE RELIEF WHEN THE NORMAL COURSE
OF CRIMINAL PROCEEDINGS IN THE STATE COURTS WOULD OTHERWISE BE
DISRUPTED.  THE OBJECTION IS TO UNWARRANTED ANTICIPATORY INTERFERENCE
IN THE STATE CRIMINAL PROCESS BY MEANS OF CONTINUOUS OF PIECEMEAL
INTERRUPTIONS OF THE STATE PROCEEDINGS BY LITIGATION IN THE FEDERAL
COURTS; THE OBJECT IS TO SUSTAIN "(THE SPECIAL DELICACY OF THE
ADJUSTMENT TO BE PRESERVED BETWEEN FEDERAL EQUITABLE POWER AND STATE
ADMINISTRATION OF ITS OWN LAW."  STEFANELLI V. MINARD, 342 U.S 117, 120
(1951).  /5/  SEE ALSO CLEARY V. BOLGER, 371 U.S. 392 (1963); WILSON V.
SCHNETTLER, 365 U.S. 381 (1961); PUGACH V. DOLLINGER, 365 U.S. 458
(1961); CF. REA V. UNITED STATES, 350 U.S. 214 (1956).  AN INJUNCTION
OF THE TYPE CONTEMPLATED BY RESPONDENTS AND THE COURT OF APPEALS WOULD
DISRUPT THE NORMAL COURSE OF PROCEEDINGS IN THE STATE COURTS VIA RESORT
TO THE FEDERAL SUIT FOR DETERMINATION OF THE CLAIM AB INITIO, JUST AS
WOULD THE REQUEST FOR INJUNCTIVE RELIEF FROM AN ONGOING STATE
PROSECUTION AGAINST THE FEDERAL PLAINTIFF WHICH WAS FOUND TO BE
UNWARRANTED IN YOUNGER.  MOREOVER, IT WOULD REQUIRE FOR ITS ENFORCEMENT
THE CONTINUOUS SUPERVISION BY THE FEDERAL COURT OVER THE CONDUCT OF THE
PETITIONERS IN THE COURSE OF FUTURE CRIMINAL TRIAL PROCEEDINGS
INVOLVING ANY OF THE MEMBERS OF THE RESPONDENTS' BROADLY DEFINED
CLASS.  /6/  THE COURT OF APPEALS DISCLAIMED ANY INTENTION OF REQUIRING
THE DISTRICT COURT TO SIT IN CONSTANT DAY-TO-DAY SUPERVISION OF THESE
JUDICIAL OFFICERS, BUT THE "PERIODIC REPORTING" SYSTEM IT THOUGHT MIGHT
BE WARRANTED /7/  WOULD CONSTITUTE A FORM OF MONITORING OF THE
OPERATION OF STATE COURT FUNCTIONS THAT IS ANTIPATHETIC TO ESTABLISHED
PRINCIPLES OF COMITY.  CF. GREENWOOD V. PEACOCK, 384 U.S. 808 (1966). 
MOREOVER, BECAUSE AN INJUNCTION AGAINST ACTS WHICH MIGHT OCCUR IN THE
COURSE OF FUTURE CRIMINAL PROCEEDINGS WOULD NECESSARILY IMPOSE
CONTINUING OBLIGATIONS OF COMPLIANCE, THE QUESTION ARISES OF HOW
COMPLIANCE MIGHT BE ENFORCED IF THE BENEFICIARIES OF THE INJUNCTION
WERE TO CHARGE THAT IT HAD BEEN DISOBEYED.  PRESUMABLY, ANY MEMBER OF
RESPONDENTS' CLASS WHO APPEARED AS AN ACCUSED BEFORE PETITIONERS COULD
ALLEGE AND HAVE ADJUDICATED A CLAIM THAT PETITIONERS WERE IN CONTEMPT
OF THE FEDERAL COURT'S INJUNCTION ORDER, WITH REVIEW OF ADVERSE
DECISIONS IN THE COURT OF APPEALS AND, PERHAPS, IN THIS COURT.  APART
FROM THE INHERENT DIFFICULTIES IN DEFING THE PROPER STANDARDS AGAINST
WHICH SUCH CLAIMS MIGHT BE MEASURED, AND THE SIGNIFICANT PROBLEMS OF
PROVING NONCOMPLIANCE IN INDIVIDUAL CASES, SUCH A MAJOR CONTINUING
INTRUSION OF THE EQUITABLE POWER OF THE FEDERAL COURTS INTO THE DAILY
CONDUCT OF STATE CRIMINAL PROCEEDINGS IS IN SHARP CONFLICT WITH THE
PRINCIPLES OF EQUITABLE RESTRAINT WHICH THIS COURT HAS RECOGNIZED IN
THE DECISIONS PREVIOUSLY NOTED. 

RESPONDENTS HAVE FAILED, MOREOVER, TO ESTABLISH THE BASIC REQUISITES
OF THE ISSUANCE OF EQUITABLE RELIEF IN THESE CIRCUMSTANCES--THE
LIKELIHOOD OF SUBSTANTIAL AND IMMEDIATE IRREPARABLE INJURY, AND THE
INADEQUACY OF REMEDIES AT LAW.  WE HAVE ALREADY CANVASSED THE
NECESSARILY CONJECTURAL NATURE OF THE THREATENED INJURY TO WHICH
RESPONDENTS ARE ALLEGEDLY SUBJECTED.  AND IF ANY OF THE RESPONDENTS ARE
EVER PROSECUTED AND FACE TRIAL, OR IF THEY ARE ELLEGALLY SENTENCED,
THERE ARE AVAILABLE STATE AND FEDERAL PROCEDURES WHICH COULD PROVIDE
RELIEF FROM THE WRONGFUL CONDUCT ALLEGED.  OPEN TO A VICTIM OF THE
DISCRIMINATORY PRACTICES ASSERTED UNDER STATE LAW ARE THE RIGHT TO A
SUBSTITUTION OF JUDGE OR A CHANGE OF VENUE, ILL. REV. STAT., C. 38, 114
- 5, 114 - 6 (1971), REVIEW ON DIRECT APPEAL OR ON POSTCONVICTION
COLLATERAL REVIEW, AND THE OPPORTUNITY TO DEMONSTRATE THAT THE CONDUCT
OF THESE JUDICIAL OFFICERS IS SO PREJUDICIAL TO THE ADMINISTRATION OF
JUSTICE . THAT AVAILABLE DISCIPLINARY PROCEEDINGS, INCLUDING THE
POSSIBILITY OF SUSPENSION OR REMOVAL, ARE WARRANTED.  ILL. CONST., ART.
VI, 15(E).  IN APPROPRIATE CIRCUMSTANCES, MOREOVER, FEDERAL HABEAS
RELIEF WOULD UNDOUBTEDLY BE AVAILABLE. 

NOR IS IT TRUE THAT UNLESS THE INJUNCTION SOUGHT IS AVAILABLE
FEDERAL LAW WILL EXERCISE NO DETERRENT EFFECT IN THESE CIRCUMSTANCES. 
JUDGES WHO WOULD WILLFULLY DISCRIMINATE ON THE GROUND OF RACE OR
OTHERWISE WOULD WILLFULLY DEPRIVE THE CITIZEN OF HIS CONSTITUTIONAL
RIGHTS, AS THIS COMPLAINT ALLEGES, MUST TAKE ACCOUNT OF 18 U.S.C. 242. 
SEE GREENWOOD V. PEACOCK, SUPRA, AT 830; UNITED STATES V. PRICE, 383
U.S. 787, 793 - 794 (1966); UNITED STATES V. GUEST, 383 U.S. 745, 753 -
754 (1966); SCREWS V. UNITED STATES, 325 U.S. 91, 101 - 106 (1945);
UNITED STATES V. CLASSIC, 313 U.S. 299 (1941).  CF, MONROE V. PAPE, 365
U.S. 167, 187 (1961).  THAT SECTION PROVIDES: 

     "WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,

  REGULATION, OR CUSTOM, WILLFULLY SUBJECTS ANY INHABITANT OF ANY

  STATE ... TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR

  IMMUNITIES SECURED OR PROTECTED BY THE CONSTITUTION OR LAWS OF

  THE UNITED STATES, OR TO DIFFERENT PUNISHMENTS, PAINS, OR

  PENALTIES, ON ACCOUNT OF SUCH INHABITANT BEING AN ALIEN, OR BY

 REASON OF HIS COLOR, OR RACE, THAN ARE PRESCRIBED FOR THE

  PUNISHMENT OF CITIZENS, SHALL BE FINED ... OR IMPRISONED...." 

WHATEVER MAY BE THE CASE WITH RESPECT TO CIVIL LIABILITY GENERALLY,
SEE PIERSON V. RAY, 386 U.S. 547 (1967), OR CIVIL LIABILITY FOR WILLFUL
CORRUPTION, SEE ALZUA V. JOHNSON, 231 U.S. 106, 110 - 111 (1913);
BRADLEY V. FISHER, 13 WALL.  335, 347, 350, 354 (1872), WE HAVE NEVER
HELD THAT THE PERFORMANCE OF THE DUTIES OF JUDICIAL, LEGISLATIVE, OR
EXECUTIVE OFFICERS, REQUIRES OR CONTEMPLATES THE IMMUNIZATION OF
OTHERWISE CRIMINAL DEPRIVATIONS OF CONSTITUTIONAL RIGHTS.  CF. EX PARTE
VIRGINIA, 100 U.S. 339 (1880).  ON THE CONTRARY, THE JUDICIALLY
FASHIONED DOCTRINE OF OFFICIAL IMMUNITY DOES NOT REACH "SO FAR AS TO
IMMUNIZE CRIMINAL CONDUCT PROSCRIBED BY AN ACT OF CONGRESS...."  GRAVEL
V. UNITED STATES, 408 U.S. 606, 627 (1972). 

CONSIDERING THE AVAILABILITY OF OTHER AVENUES OF RELIEF OPEN TO
RESPONDENTS FOR THE SERIOUS CONDUCT THEY ASSERT, AND THE ABRASIVE AND
UNMANAGEABLE INTERCESSION WHICH THE INJUNCTIVE RELIEF THEY SEEK WOULD
REPRESENT, WE CONCLUDE THAT, APART FROM THE ABSENCE OF AN EXISTING CASE
OR CONTROVERSY PRESENTED BY RESPONDENTS FOR ADJUDICATION, THE COURT OF
APPEALS ERRED IN DECIDING THAT THE DISTRICT COURT SHOULD ENTERTAIN
RESPONDENTS' CLAIM. 

REVERSED. 

/1/  WHILE THE COURT OF APPEALS DID NOT ATTEMPT TO SPECIFY EXACTLY
WHAT TYPE OF INJUNCTIVE RELIEF MIGHT BE JUSTIFIED, IT AT LEAST
SUGGESTED THAT IT MIGHT INCLUDE A REQUIREMENT OF "PERIODIC REPORTS OF
VARIOUS TYPES OF AGGREGATE DATA ON ACTIONS ON BAIL AND SENTENCING." 
468 F.2D, AT 415.  THE DISSENTING JUDGE URGED THAT A FEDERAL DISTRICT
COURT HAS NO POWER TO SUPERVISE AND REGULATE BY MANDATORY INJUNCTION
THE DISCRETION WHICH STATE COURT JUDGES MAY EXERCISE WITHIN THE LIMITS
OF THE POWERS VESTED IN THEM BY LAW, AND THAT ANY RELIEF CONTEMPLATED
BY THE MAJORITY HOLDING WHICH MIGHT BE APPLICABLE TO THE PATTERN AND
PRACTIVE ALLEGED, IF PROVEN, WOULD SUBJECT THE PETITIONERS TO THE
CONTINUING SUPERVISION OF THE DISTRICT COURT, THE NECESSITY OF
DEFENDING THEIR MOTIVATIONS IN EACH INSTANCE WHEN THE FIXING OF BAIL OR
SENTENCE WAS CHALLENGED BY A NEGRO DEFENDANT AS INCONSISTENT WITH THE
EQUITABLE RELIEF GRANTED, AND THE POSSIBILITY OF A CONTEMPT CITATION
FOR FAILURE TO COMPLY WITH THE RELIEF AWARDED.  ID., AT 415 - 417. 

/2/  WE HAVE PREVIOUSLY NOTED THAT "CONGRESS MAY ENACT STATUTES
CREATING LEGAL RIGHTS, THE INVASION OF WHICH CREATES STANDING, EVEN
THOUGH NO INJURY WOULD EXIST WITHOUT THE STATUTE.  SEE, E.G.,
TRAFFICANTE V. METROPOLITAN LIFE INS. CO., 409 U.S. 205, 212 (1972)
(WHITE, J., CONCURRING); HARDIN V. KENTUCKY UTILITIES CO., 390 U.S. 1,
6 (1968)."  LINDA R. S. V. RICHARD D., 410 U.S. 614, 617 N. 3 (1973). 
BUT SUCH STATUTES DO NOT PURPORT TO BESTOW THE RIGHT TO SUE IN THE
ABSENCE OF ANY INDICATION THAT INVASION OF THE STATUTORY RIGHT HAS
OCCURRED OR IS LIKELY TO OCCUR.  TITLE 42 U.S.C. 1983, IN PARTICULAR,
PROVIDES FOR LIABILITY TO THE "PARTY INJURED" IN AN ACTION AT LAW, SUIT
IN EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS.  PERFORCE, THE
CONSTITUTIONAL REQUIREMENT OF AN ACTUAL CASE OR CONTROVERSY REMAINS. 
RESPONDENTS STILL MUST SHOW ACTUAL OR THREATENED INJURY OF SOME KIND TO
ESTABLISH STANDING IN THE CONSTITUTIONAL SENSE. 

/3/  THERE WAS NO CLASS DETERMINATION IN THIS CASE AS THE COMPLAINT
WAS DISMISSED ON GROUNDS WHICH DID NOT REQUIRE THAT DETERMINATION TO BE
MADE.  PETITIONERS ASSERT THAT THE LACK OF STANDING OF THE NAMED
RESPONDENTS TO RAISE THE CLASS CLAIM IS BUTTRESSED BY THE INCONGRUOUS
NATURE OF THE CLASS RESPONDENTS SEEK TO REPRESENT.  THE CLASS IS
VARIOUSLY AND INCOMPATIBLY DEFINED IN THE COMPLAINT AS THOSE RESIDENTS
OF CAIRO, BOTH NEGRO AND WHITE, WHO HAVE BOYCOTTED CERTAIN BUSINESSES
IN THAT CITY AND ENGAGED IN SIMILAR ACTIVITIES FOR THE PURPOSE OF
COMBATTING RACIAL DISCRIMINATION, AS A CLASS OF ALL NEGRO CITIZENS
SUFFERING RACI L DISCRIMINATION IN THE APPLICATION OF THE CRIMINAL
JUSTICE SYSTEM IN ALEXANDER COUNTY (THOUGH TWO WHITE PERSONS ARE NAMED
RESPONDENTS), AND AS ALL POOR PERSONS UNABLE TO AFFORD BAIL, COUNSEL,
OR JURY TRIALS IN CITY ORDINANCE CASES.  THE ABSENCE OF SPECIFIC CLAIMS
OF INJURY AS A RESULT OF ANY OF THE WRONGFUL PRACTICES CHARGED, IN
LIGHT OF THE AMBIGUOUS AND CONTRADICTORY CLASS DEFINITION PROFFERED,
BOLSTERS OUR CONCLUSION THAT THESE RESPONDENTS CANNOT INVOKE FEDERAL
JURISDICTION TO HEAR THE CLAIMS THEY PRESENT IN SUPPORT OF THEIR
REQUEST FOR INJUNCTIVE RELIEF.     /4/  TR. OF ORAL ARG. 21, 23, 26. 

/5/  IT WAS NOTED IN STEFANELLI THAT IN SUITS BROUGHT UNDER 42
U.S.C. 1983 "WE HAVE WITHHELD RELIEF IN EQUITY EVEN WHEN RECOGNIZING
THAT COMPARABLE FACTS WOULD CREATE A CAUSE OF ACTION FOR DAMAGES. 
COMPARE GILES V. HARRIS, 189 U.S. 475, WITH LANE V. WILSON, 307 U.S.
268."  342 U.S., AT 122. 

/6/  SEE N. 3, SUPRA. 

/7/  SEE N. 1, SUPRA. 

MR. JUSTICE BLACKMUN, CONCURRING IN PART. 

I JOIN THE JUDGMENT OF THE COURT AND PART I OF THE COURT'S OPINION
WHICH HOLDS THAT THE COMPLAINT "FAILED TO SATISFY THE THRESHOLD
REQUIREMENT IMPOSED BY ART. III OF THE CONSTITITION THAT THOSE WHO SEEK
TO INVOKE THE POWER OF FEDERAL COURTS MUST ALLEGE AN ACTUAL CASE OR
CONTROVERSY."  ANTE, AT 493. 

WHEN WE ARRIVE AT THAT CONCLUSION, IT FOLLOWS, IT SEEMS TO ME, THAT
WE ARE PRECLUDED FROM CONSIDERING ANY OTHER ISSUE PRESENTED FOR
REVIEW.  THUS, THE COURT'S ADDITIONAL DISCUSSION OF THE QUESTION
WHETHER A CASE FOR EQUITABLE RELIEF WAS STATED AMOUNTS TO AN ADVISORY
OPINION THAT WE ARE POWERLESS TO RENDER.  HAYBURN'S CASE, 2 DALL.  409
(1792); UNITED STATES V. EVANS, 213 U.S. 297, 301 (1909); MUSKRAT V.
UNITED STATES, 219 U.S. 346, 360 - 361 (1911); STEARNS V. WOOD, 236
U.S. 75 (1915); COFFMAN V. BREEZE CORPS., 323 U.S. 316 (1945); UNITED
PUBLIC WORKERS V. MITCHELL, 330 U.S. 75 (1947); PASCHALL V. CHRISTIE
STEWART, INC., ANTE, AT 101 - 102. 

MR. JUSTICE FRANKFURTER STATED THE APPLICABLE PRINCIPLE IN SPEAKING
FOR THE COURT IN INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION V.
BOYD, 347 U.S. 222, 223 (1954): 

     "ON THIS APPEAL, APPELLEE CONTENDS THAT THE DISTRICT COURT

  SHOULD NOT HAVE REACHED THE STATUTORY AND CONSTITUTIONAL

  QUESTIONS--THAT IT SHOULD HAVE DISMISSED THE SUIT FOR WANT OF A

  'CASE OR CONTROVERSY,' FOR LACK OF STANDING ON THE UNION'S PART

  TO BRING THIS ACTION....  SINCE THE FIRST OBJECTION IS

  CONCLUSIVE, THERE IS AN END OF THE MATTER." 

I WOULD ADHERE TO THAT PRINCIPLE.  EITHER THERE IS NO CASE OR
CONTROVERSY AND THAT IS THE END OF THE MATTER, OR THERE IS A CASE OR
CONTROVERSY AND THE COURT MAY GO ON TO A DECISION ON THE MERITS.  IN MY
VIEW, THE COURT MAY NOT HAVE IT BOTH WAYS. 

MR. JUSTICE DOUGLAS, WITH WHOM JR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

THE RESPONDENTS IN THIS CASE ARE BLACK AND INDIGENT CITIZENS OF
CAIRO, ILLINOIS.  SUING IN FEDERAL COURT, THEY ALLEGED THAT SINCE THE
EARLY 1960'S BLACK CITIZENS OF CAIRO HAVE BEEN ACTIVELY SEEKING EQUAL
OPPORTUNITY AND TREATMENT IN EMPLOYMENT, HOUSING, EDUCATION, AND
ORDINARY DAY-TO-DAY RELATIONS WITH THE WHITE CITIZENS AND OFFICIALS OF
CAIRO.  IN THIS QUEST, BLACKS HAVE ENGAGED IN A BOYCOTT OF LOCAL
MERCHANTS DEEMED TO HAVE ENGAGED IN RACIAL DISCRIMINATION. 

ALLEGING THAT THIS QUEST FOR EQUALITY HAS GENERATED SUBSTANTIAL
ANTAGONISM FROM WHITE GOVERNMENTAL OFFICIALS, RESPONDENTS BROUGHT A
CLASS ACTION UNDER 42 U.S.C. 1981, 1982, 1983, AND 1985, SEEKING TO
REPRESENT CITIZENS OF CAIRO WHO HAVE BEEN SUBJECTED IN THE PAST, AND
CONTINUE TO BE SUBJECTED, TO THE ALLEGEDLY DISCRIMINATORY AND
UNCONSTITUTIONAL ADMINISTRATION OF CRIMINAL JUSTICE IN ALEXANDER
COUNTY, ILLINOIS, WHICH INCLUDES CAIRO.  AMONG THEIR OTHER CLAIMS,
RESPONDENTS ALLEGED THAT PETITIONERS MICHAEL O'SHEA AND DOROTHY SPOMER,
BOTH NOW JUDGES IN ALEXANDER COUNTY, /1/  ENGAGE IN ACTS WHICH DEPRIVE
THEM AND MEMBERS OF THEIR CLASS OF THEIR CONSTITUTIONAL RIGHTS.  THESE
JUDGES ALLEGEDLY SET BOND IN CRIMINAL CASES WITHOUT REGARD TO THE FACTS
OF INDIVIDUAL CASES AND AS PUNISHMENT, AND NOT MERELY TO ASSURE THE
APPEARANCE OF DEFENDANTS AT TRIAL; IMPOSE HIGHER SENTENCES AND HARSHER
CONDITIONS OF SENTENCING ON BLACKS THAN ON WHITE CITIZENS; AND REQUIRE
RESPONDENTS AND MEMBERS OF THEIR CLASS, WHEN CHARGED WITH VIOLATIONS OF
CITY ORDINANCES WHICH CARRY FINES AND POSSIBLE JAIL PENALTIES, TO PAY
FOR A TRIAL BY JURY IF THE FINE CANNOT BE PAID. 

        I 

AN INJUNCTION WAS SOUGHT AGAINST THIS CONDUCT.  THE DISTRICT COURT
REFERRED OBLIQUELY TO WANT OF JURISDICTION, BUT, FOCUSING ON THE FACT
THAT THE COMPLAINT SOUGHT REVIEW OF MATTERS OF JUDICIAL DISCRETION,
CONCLUDED THAT THE ACTION SHOULD BE DISMISSED BECAUSE JUDGES AND
MAGISTRATES ARE IMMUNE FROM LIABILITY FOR ACTS DONE IN PERFORMANCE OF
THEIR DUTIES.  IN REVERSING AND REMANDING THE CASE TO THE DISTRICT
COURT, THE COURT OF APPEALS HELD THAT THE ACTION WAS NOT BARRED BY THE
DOCTRINE OF JUDICIAL IMMUNITY.  THE COURT OF APPEALS ALSO HELD THAT THE
COMPLAINT CONTAINED SUFFICIENTLY SPECIFIC FACTUAL AVERMENTS TO SATISFY
FED. RULE CIV. PROC. 8(A).  468 F.2D 389. 

THIS COURT NOW DECIDES FOR THE FIRST TIME IN THE COURSE OF THIS
LITIGATION THAT THE COMPLAINT IS DEFICIENT BECAUSE IT DOES NOT STATE A
"CASE OR CONTROVERSY"  WITHIN THE MEANING OF ART. III. 

THE FACT THAT NO PARTY HAS RAISED THAT ISSUE IN THIS CLOSELY
CONTESTED CASE IS NO BARRIER, OF COURSE, TO OUR CONSIDERATION OF IT.
BUT THE REASONING AND RESULT REACHED BY THE COURT ARE TO SAY THE LEAST
A TOUR DE FORCE AND QUITE INCONSISTENT WITH THE ALLEGATIONS IN THE
COMPLAINT, WHICH ARE WITHIN CONSTITUTIONAL REQUIREMENTS. 

WE KNOW FROM THE RECORD AND ORAL ARGUMENT THAT CAIRO, ILLINIOS, IS
BOILING WITH RACIAL CONFLICTS.  THIS CLASS ACTION BROUGHT UNDER 42
U.S.C. 1981, 1982, 1983, AND 1985 IS TO REMEDY VAST INVASIONS OF CIVIL
RIGHTS.  THE COURT, HOWEVER, SAYS THAT IT IS NOT A "CASE OR
CONTROVERSY" BECAUSE NONE OF THE NAMED PLAINTIFFS HAS ALLEGED
INFRINGEMENT OF HIS RIGHTS AND THE FACT THAT OTHER MEMBERS OF THE CLASS
MAY HAVE BEEN INJURED IS NOT ENOUGH.  AS TO THE LATTER, BAILEY V.
PATTERSON, 369 U.S. 31, 32 - 33, IS CITED IN SUPPORT.  BUT IN BAILEY
THE NAMED PERSONS WERE GIVEN STANDING TO SUE, THE STATEMENT THAT "(THEY
CANNOT REPRESENT A CLASS OF WHOM THEY ARE NOT A PART," ID., AT 32 - 33,
BEING DICTUM AND ITS ONLY AUTHORITY BEING MCCABE V. ATCHISON, T. & S.
F. R. CO., 235 U.S. 151, 162 - 163, WHICH WAS NOT A CLASS ACTION.  NOR
WAS THE QUESTION ON WHICH THE CASE IS MADE TO TURN RESOLVED IN INDIANA
EMPLOYMENT DIVISION V. BURNEY, 409 U.S. 540.  FOR WE ONLY HELD THAT
WHERE THE MANED PLAINTIFF HAD RECEIVED RELIEF AND NOTHING APPEARED AS
TO THE RELIEF, IF ANY, GRANTED TO MEMBERS OF THE CLASS, THE POSSIBLE
QUESTION OF MOOTNESS SHOULD BE RESOLVED BY THE DISTRICT COURT.  EVEN
SO, THERE WERE DISSENTS.  THE UPSHOT IS THAT ONE CRUCIAL ISSUE ON WHICH
THE COURT MAKES THIS CASE TURN HAS NOT BEEN DECIDED BY THE COURT AND
WAS NEVER ARGUED HERE.  AT THE VERY LEAST WE SHOULD HAVE A FULL-DRESS
REARGUMENT ON THAT POINT. 

BUT I DO NOT PRESS THE POINT, FOR THE AMENDED COMPLAINT IS
SUFFICIENTLY SPECIFIC TO WARRANT A TRIAL. 

AS RESPECTS O'SHEA, THE MAGISTRATE, AND SPOMER, THE CIRCUIT JUDGE,
THE CHARGES CONCERNING NAMED PLAINTIFFS ARE AS FOLLOWS" 

(1) THAT EXCESSIVE BONDS HAVE BEEN REQUIRED IN VIOLATION OF THE
EIGHTH AND FOURTEENTH AMENDMENTS BECAUSE PETITIONERS FOLLOW AN
UNOFFICIAL BOND SCHEDULE WITHOUT REGARD TO THE FACTS OF INDIVIDUAL
CASES; 

(2) ON INFORMATION AND BELIEF, THAT PETITIONERS SET HIGHER SENTENCES
AND IMPOSE HARSHER CONDITIONS FOR RESPONDENTS AND MEMBERS OF THEIR
CLASS THAN FOR WHITE PERSONS; 

(3) THAT, WHERE THE NAMED PLAINTIFFS HAVE BEEN FINED AND AT TIMES
SENTENCED TO JAIL AND CANNOT PAY THE FINES, THESE JUDGES HAVE REQUIRED
THEM TO PAY FOR A TRIAL BY JURY. 

MOREOVER, THE AMENDED COMPLAINT ALLEGES THAT O'SHEA AND SPOMER
"CONTINUE TO ENGAGE IN A PATTERN AND PRACTICE" WHICH "HAS DEPRIVED AND
CONTINUES TO DEPRIVE" THE NAMED PLAINTIFFS AND MEMBERS OF THEIR CLASS
OF THEIR CONSTITUTIONAL RIGHTS.  MOREOVER, IT IS ALLEGED THAT SINCE
EARLY IN THE 1960,S THE BLACKS OF CAIRO AND SOME WHITES HAVE BEEN
ACTIVELY AND PEACEABLY SEEKING TO END DISCRIMINATION IN CAIRO AND THAT
THOSE ACTIVITIES HAVE GENERATED AND CONTINUE TO GENERATE TENSION AND
ANTAGONISM IN CAIRO. 

IT IS ALSO ALLEGED THAT THE POLICE COMMISSIONER IN CAIRO "HAS DENIED
AND CONTINUES TO DENY TO PLAINTIFFS AND MEMBERS OF THEIR CLASS THEIR
CONSTITUTIONAL RIGHTS IN THE FOLLOWING WAYS: 

     "(A) DEFENDANT HAS MADE OR CAUSED TO BE MADE OR COOPERATED IN

  THE MAKING OF ARRESTS AND THE FILING OF CHARGES AGAINST

  PLAINTIFFS AND MEMBERS OF THEIR CLASS WHERE SUCH CHARGES ARE NOT

  WARRANTED AND ARE MERELY FOR THE PURPOSE OF HARASSMENT AND TO

DISCOURAGE AND PREVENT PLAINTIFFS AND THEIR CLASS FROM EXERCISING

  THEIR CONSTITUTIONAL RIGHTS. 

     "(B) DEFENDANT HAS MADE OR CAUSED TO BE MADE OR COOPERATED IN

  THE MAKING OF ARRESTS AND THE FILING OF CHARGES AGAINST

  PLAINTIFFS AND MEMBERS OF THEIR CLASS WHERE THERE MAY BE SOME

  COLORABLE BASIS TO THE ARREST CHARGE, BUT THE CRIME DEFINED IN

  THE CHARGE IS MUCH HARSHER THAN IS WARRANTED BY THE FACTS AND IS

  FAR MORE SEVERE THAN LIKE CHARGES WOULD BE AGAINST A WHITE

  PERSON. 

THESE ALLEGATIONS SUPPORT THE LIKELIHOOD THAT THE NAMED PLAINTIFFS
AS WELL AS MEMBERS OF THEIR CLASS WILL BE ARRESTED IN THE FUTURE AND
THEREFORE WILL BE BROUGHT BEFORE O'SHEA AND SPOMER AND BE SUBJECTED TO
THE ALLEGED DISCRIMINATORY PRACTICES IN THE ADMINISTRATION OF JUSTICE. 

THESE ALLEGATIONS OF PAST AND CONTINUING WRONGDOINGS CLEARLY STATE A
CASE OR CONTROVERSY IN THE ART. III SENSE.  THEY ARE AS SPECIFIC AS
THOSE ALLEGED IN JENKINS V. MCKEITHEN, 395 U.S. 411, AND IN DOE V.
BOLTON, 410 U.S. 179, WHERE WE HELD THAT CASES OR CONTROVERSIES WERE
PRESENTED. 

SPECIFICITY OF PROOF MAY NOT BE FORTHCOMING; BUT SPECIFICITY OF
CHARGES IS CLEAR. 

WHAT HAS BEEN ALLEGED HERE IS NOT ONLY WRONGS DONE TO NAMED
PLAINTIFFS, BUT A RECURRING PATTERN OF WRONGS WHICH ESTABLISHES, IF
PROVED, THAT THE LEGAL REGRIME UNDER CONTROL OF THE WHITES IN CAIRO,
ILLINOIS, IS USED OVER AND OVER AGAIN TO KEEP THE BLACKS FROM
EXERCISING FIRST AMENDMENT RIGHTS, TO DISCRIMINATE AGAINST THEM, TO
KEEP FROM THE BLACKS THE PROTECTION OF THE LAW IN THEIR LAWFUL
ACTIVITIES, TO WEIGHT THE SCALES OF JUSTICE REPEATEDLY ON THE SIDE OF
WHITE PREJUDICES AND AGAINST BLACK PROTESTS, FEARS, AND SUFFERING. 
THIS IS A MORE PERVASIVE SCHEME FOR SUPPRESSION OF BLACKS AND THEIR
CIVIL RIGHTS THAN I HAVE EVER SEEN.  IT MAY NOT SURVIVE A TRIAL.  BUT
IF THIS CASE DOES NOT PRESENT A "CASE OR CONTROVERSY" INVOLVING THE
NAMED PLAINTIFFS, THEN THAT CONCEPT HAS BEEN SO WATERED DOWN AS TO BE
NO LONGER RECOGNIZABLE.  THIS WILL PLEASE THE WHITE SUPERSTRUCTURE, BUT
IT DOES VIOLENCE TO THE COMCEPTION OF EVENHANDED JUSTICE ENVISIONED BY
THE CONSTITUTION. 

SUITS UNDER 42 U.S.C. 1983 ARE EXCEPTIONS TO THE ABSOLUTE BAR
AGAINST FEDERAL INJUNCTIONS DIRECTED AT STATE COURT PROCEEDINGS
PROVIDED IN 28 U.S.C. 2283.  /2/  SEE MITCHUM V. FOSTER, 407 U.S. 225. 
IT WILL BE MUCH MORE APPROPRIATE TO PASS ON THE NATURE OF ANY EQUITABLE
RELIEF TO BE GRANTED AFTER THE CASE HAS BEEN TRIED.  IT MAY BE THAT
WHEN THE CASE IS ENDED, NO INJUNCTION AGAINST ANY STATE PROCEEDING WILL
BE ASKED FOR OR WILL SEEM APPROPRIATE.  OR THE INJUNCTIVE RELIEF IN
FINAL ANALYSIS MAY COME DOWN TO VERY NARROW AND DISCRETE ORDERS
PROHIBITING PRECISE PRACTICES.  THE COURT LABELS THIS AN "ONGOING
FEDERAL AUDIT OF STATE CRIMINAL PROCEEDINGS."  THAT OF COURSE IS A
REGIME THAT WE DO NOT FOSTER.  BUT THE FEDERAL CONSTITUTION IS SUPREME
AND IF THE POWER OF THE WHITE POWER-STRUCTURE IN CAIRO, ILLINOIS, IS SO
GREAT AS TO DISREGARD IT, EXTRAORDINARY RELIEF IS DEMANDED.  I WOULD
CROSS THE BRIDGE OF REMEDIES ONLY WHEN THE PRECISE CONTOURS OF THE
PROBLEM HAVE BEEN ESTABLISHED AFTER A TRIAL. 

TO REPEAT, IN THE INSTANT CASE, THERE ARE ALLEGATIONS THAT STATE
LOWER-COURT JUDGES ARE WILLFULLY DISCRIMINATING IN THEIR SENTENCING
DETERMINATIONS ARE IMPOSING EXCESSIVE BAIL.  THE EFFECTS OF SUCH
RESULTS MAY WELL PERSIST QUITE ASIDE FROM THE DISPOSITION OF THE
UNDERLYING SUBSTANTIVE CHARGES AT TRIAL OR ON APPEAL, AND MAY WELL BE
FUNCTIONALLY UNREVIEWABLE.  THE COURT OF APPEALS OBSERVED THAT THE
INDIVIDUAL DEFENDANT IN A CRIMINAL CASE WILL FIND IT DIFFICULT, IF NOT
IMPOSSIBLE, TO OBTAIN REVIEW OF A SENTENCE WITHIN STATUTORY LIMITS
UNLESS IT IS MANIFESTLY HARSH OR UNJUSTIFIED, CITING THE ILLINOIS RULE
THAT "IMPOSITION OF SENTENCE IS A MATTER OF JUDICIAL DISCRETION, AND IN
THE ABSENCE OF A MANIFEST ABUSE OF THAT DISCRETION IT WILL NOT BE
ALTERED BY A REVIEWING COURT."  PEOPLE V. BONNER, 37 ILL. 2D 553, 563,
229 N.E. 2D 527, 533 (1967), CERT. DENIED, 392 U.S. 910 (1968). 

FURTHERMORE, THE RESPONDENTS DO NOT PRIMARILY ALLEGE INDIVIDUAL
INSTANCES OF EXCESSIVELY HARSH TREATMENT, ON AN ABSOLUTE SCALE, OF
BLACK AND INDIGENT DEFENDANTS, BUT RATHER A PATTERN OF DISCRIMINATORY
TREATMENT, ESPECIA-LY IN FAVOR OF PROSPEROUS WHITE DEFENDANTS.  SUCH
ALLEGATIONS WOULD AMOUNT TO DENIALS OF EQUAL PROTECTION EVEN IF BLACKS
AND POOR WHITES WERE NOT SUBJECT TO SENTENCES WHICH WERE SO EXCESSIVE
THAT THEY CONSTITUTED MANIFEST ABUSES OF DISCRETION, AS LONG AS WEALTHY
WHITES WERE AT THE SAME TIME RECEIVING RELATIVELY LENIENT SENTENCES
FROM THE SAME JUDGES.  A SINGLE INSTTANCE OF SENTENCING BY ITSELF MIGHT
NOT STRIDE THE CONSCIENCE OF A REVIEWING COURT, BUT WHEN COUPLED WITH A
PATTERN OF DISCRIMINATORY TREATMENT COULD WELL JUSTIFY THE EQUITABLE
INTERVENTION OF A FEDERAL COURT.  A CLASS SUIT WHERE EVIDENCE COULD BE
DEVELOPED SHOWING A PATTERN OF DISCRIMINATORY BAIL AND SENTENCING
DECISIONS BY THE PETITIONERS WOULD BE THE ONE APPROPRIATE VEHICLE IN
WHICH THESE CLAIMS COULD BE DEVELOPED. 

WHETHER RESPONDENTS COULD COME FORWARD WITH SUCH EVIDENCE, AND
WHETHER THE FEDERAL DISTRICT COURT IN THE EXERCISE OF ITS EQUITABLE
DISCRETION COULD FRAME SUITABLE RELIEF ARE, OF COURSE, QUESTIONS WHICH
CAN BE ANSWERED ONLY AFTER A TRIAL ON THE MERITS.  THE RESOLUTION OF
THOSE ISSUES WOULD THEN BE PROPERLY REVIEWABLE.  BUT THE PRINCIPLES OF
ABSTENTION AND COMITY SHOULD NOT BAR THIS SUIT AB INITIO. 
II 

BECAUSE I BELIEVE THAT THE COMPLAINT IS SUFFICIENT TO STATE AN
ACTUAL "CASE OR CONTROVERSY," I REACH THE FURTHER QUESTION, ON THE
MERITS, WHETHER EQUITABLE RELIEF MAY BE WARRANTED IN THE CIRCUMSTANCES
OF THIS CASE.  I AGREE, NONETHELESS, WITH MY BROTHER BLACKMUN THAT THE
COURT'S DISCUSSION IN PART II OF ITS OPINION, WHETHER A CASE FOR
EQUITABLE RELIEF WAS STATED, IS AN ADVISORY OPINION SINCE THE COURT HAS
DETERMINED THAT THERE IS NO "CASE OR CONTROVERSY" IN THE ARTICLE III
SENSE. 

        APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING 

THERE ARE SEVEN STATUTES IN ADDITION TO 42 U.S.C. 1983 WHICH THE
COURT HAS RECOGNIZED CONSTITUTE "EXPRESS EXCEPTIONS" TO THE POLICY OF
NONINTERVENTION IN STATE PROCEEDINGS ENUNCIATED BY THE ANTI-INJUNCTION
STATUTE:  (1) THE BANKRUPTCY ACT, 11 U.S.C. 1 ET SEQ., SPECIFICALLY
RECOGNIZED BY CONGRESS AS AN EXCEPTION TO 28 U.S.C. 2283.  SEE MITCHUM
V. FOSTER, 407 U.S. 225, 233.  (2) THE INTERPLEADER ACT OF 1936, 28
U.S.C. 2361, ALLOWING FEDERAL COURTS TO RESTRAIN PROSECUTION OF STATE
COURT SUITS INVOLVING PROPERTY INVOLVED IN FEDERAL INTERPLEADER
ACTIONS.  SEE TREINIES V. SUNSHINE MINING CO., 30I U.S. 66, 74.  (3)
THE 1851 ACT LIMITING THE LIABILITY OF SHIPOWNERS BY PROVIDING FOR THE
CESSATION OF PROCEEDINGS AGAINST THEM WHEN THEY HAVE MADE A DEPOSIT
EQUAL TO THE VALUE OF THEIR SHIPS WITH A FEDERAL COURT, 46 U.S.C. 185. 
SEE PROVIDENCE & N.Y.S.S. CO. V. HILL MFG. CO., 109 U.S. 578, 599 -
600.  (4) THE FRAZIER-LEMKE FARM MORTGAGE ACT, 11 U.S. 203(5)(2).  SEE
KALB V. FEVERSTEIN, 308 U.S. 433.  (5) THE FEDERAL HABEAS CORPUS ACT,
28 U.S.C. 2251, PERMITTING A STAY OF STATE COURT PROCEEDINGS WHEN A
FEDERAL HABEAS ACTION IS PENDING.  SEE EX PARTE ROYALL, 117 U.S. 241,
248 - 249.  (6) SECTION 205(A) OF THE EMERGENCY PRICE CONTROL ACT OF
1942, 56 STAT. 33.  SEE PORTER V. DICKEN, 328 U.S. 252, 255.  (7)
LEGISLATION PROVIDING FOR THE REMOVAL OF LITIGATION TO FEDERAL COURTS
AND THE SIMULTANEOUS CESSATION OF STATE COURT PROCEEDINGS, 28 U.S.C.
1446(E).  SEE FRENCH V. HAY, 22 WALL.  250. 

THIS COURT HAS ALSO RECOGNIZED THE POWER OF A FEDERAL COURT TO STAY
PROCEEDINGS IN A STATE COURT TO PREVENT RELITIGATION OF AN ISSUE
ALREADY DECIDED IN A FEDERAL PROCEEDING.  SEE SUPREME TRIBE OF BEN-HUR
V. CAUBLE, 255 U.S. 356; JULIAN V. CENTRAL TRUST CO., 193 U.S. 93,
112.  IT HAS RECOGNIZED THE POWER OF A FEDERAL COURT TO ENJOIN STATE
COURT PROCEEDINGS TO PROTECT THE JURISDICTION WHICH A FEDERAL COURT HAS
ALREADY ACQUIRED OVER A RES.  SEE KLINE V. BURKE CONSTRUCTION CO., 260
U.S. 226; TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118, 135 - 136. 
AND WE HAVE FOUND IT PROPER FOR A FEDERAL COURT TO DIRECTLY ENJOIN
STATE PROCEEDINGS WHEN THE INJUNCTION WAS SOUGHT BY EITHER THE UNITED
STATES, LEITER MINERALS, INC. V. UNITED STATES, 352 U.S. 220, OR BY A
FEDERAL AGENCY ASSERTING SUPERIOR FEDERAL INTERESTS, SEE NLRB V. NASH
FINCH CO., 404 U.S. 138. 

/1/  O'SHEA, MAGISTRATE OF ALEXANDER COUNTY CIRCUIT COURT WHEN THIS
SUIT WAS INSTITUTED, BECAME AN ASSOCIATE JUDGE IN THE COUNTY ON JULY 1,
1971. 

/2/  TITLE 28 U.S.C. 2283 PROVIDES THAT: 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

ROBERT J. O'ROURKE, DEPUTY ASSISTANT ATTORNEY GENERAL OF ILLINOIS,
ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE BRIEFS WERE WILLIAM
J. SCOTT, ATTORNEY GENERAL, FRED F. HERZOG, FIRST ASSISTANT ATTORNEY
GENERAL, JOHN W. FREELS, SPECIAL ASSISTANT ATTORNEY GENERAL, AND
JERRALD B. ABRAMS, ASSISTANT ATTORNEY GENERAL. 

ALAN M. WISEMAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE JAMES B. O'SHAUGHNESSY AND MICHAEL P. SENG.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF ASSISTANT
ATTORNEY GENERAL, DORIS H. MAIER AND EDWARD P. O'BRIEN, ASSISTANT
ATTORNEYS GENERAL, AND ROBERT R. GRANUCCI, DEPUTY ATTORNEY GENERAL, FOR
THE STATE OF CALIFORNIA; AND BY JACK E. HORSLEY AND RICHARD F. RECORD,
JR., FOR THE ILLINOIS STATE BAR ASSN.
..END :



SPOMER V. LITTLETON, 414 U.S. 514 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 72 - 955.  ARGUED OCTOBER 17, 1973--DECIDED JANUARY 15,

1974; 468 F.2D 389, VACATED AND REMANDED. 


    RESPONDENTS, 17 BLACK AND TWO WHITE RESIDENTS OF CAIRO,

  ILLINOIS, BROUGHT A CIVIL RIGHTS ACTION AGAINST THE THEN STATE'S

  ATTORNEY OF ALEXANDER COUNTY, ILLINOIS, INDIVIDUALLY AND IN HIS

  OFFICIAL CAPACITY, CHARGING HIM WITH CERTAIN PURPOSEFUL RACIAL

  DISCRIMINATION PRACTICES, UNDER COLOR OF STATE LAW IN VIOLATION

  OF THE CONSTITUTION AND 42 U.S.C. 1981 - 1983, 1985.  1985.  THE

  DISTRICT COURT DISMISSED THE COMPLAINT FOR WANT OF JURISDICTION

  TO GRANT INJUNCTIVE RELIEF.  THE COURT OF APPEALS REVERSED,

  HOLDING THAT A PROSECUTOR'S QUASI-JUDICIAL IMMUNITY FROM

INJUNCTIVE PROSCRIPTION WAS NOT ABSOLUTE, AND THAT SINCE

RESPONDENTS'  REMEDIES AT LAW WERE INADEQUATE, AND INJUNCTIVE

  REMEDY MIGHT BE AVAILABLE IF RESPONDENTS COULD PROVE THEIR

  CLAIMS.  SUBSEQUENT TO THE COURT OF APPEALS'  DECISION,

  PETITIONER WAS ELECTED AS SUCCESSOR STATE'S ATTORNEY, AND IN THE

  PETITION FOR CERTIORARI FILED WITH THIS COURT WAS SUBSTITUTED AS

  A PARTY.  HELD:  WHERE, ON THE RECORD, RESPONDENTS HAVE NEVER

  CHARGED PETITIONER WITH ANYTHING AND DO NOT PRESENTLY SEEK TO

  ENJOIN HIM FROM DOING ANYTHING, SO THAT THERE MAY NO LONGER BE A

  CONTROVERSY BETWEEN RESPONDENTS AND ANY ALEXANDER COUNTY STATE'S

  ATTORNEY CONCERNING INJUNCTIVE RELIEF TO BE APPLIED IN FUTURO,

THE CASE IS VACATED AND REMANDED TO THE COURT OF APPEALS FOR A

  DETERMINATION, IN THE FIRST INSTANCE, OF WHETHER THE FORMER

  DISPUTE IS NOW MOOT AND WHETHER RESPONDENTS WILL WANT TO, AND

  SHOULD BE PERMITTED TO, AMEND THEIR COMPLAINT TO INCLUDE CLAIMS

  FOR RELIEF AGAINST PETITIONER.  PP. 520 - 523. 

WHITE, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO O'SHEA V. LITTLETON, ANTE, P. 488,
INVOLVING CLAIMS WHICH THE RESPONDENTS, 17 BLACK AND TWO WHITE
RESIDENTS OF CAIRO, ILLINOIS, INDIVIDUALLY AND AS REPRESENTATIVES OF
THE CLASS THEY PURPORT TO REPRESENT, SET FORTH IN THAT PORTION OF THEIR
AMENDED CIVIL RIGHTS COMPLAINT WHICH ALLEGED WRONGFUL CONDUCT ON THE
PART OF PEYTON BERBLING, INDIVIDUALLY AND IN HIS CAPACITY AS STATE'S
ATTORNEY FOR ALEXANDER COUNTY, ILLINOIS, THE COUNTY IN WHICH THE CITY
OF CAIRO IS LOCATED.  AS DISCUSSED IN O'SHEA, THE COMPLAINT ALLEGED A
BROAD RANGE OF RACIALLY DISCRIMINATORY PATTERNS AND PRACTICES IN THE
ADMINISTRATION OF THE CRIMINAL JUSTICE SYSTEM IN ALEXANDER COUNTY BY
THE POLICE COMMISSIONER OF CAIRO, MAGISTRATE MICHAEL O'SHEA AND
ASSOCIATE JUDGE DOROTHY SPOMER OF THE ALEXANDER COUNTY CIRCUIT COURT,
STATE'S ATTORNEY BERBLING, AND EARL SHEPHERD, AN INVESTIGATOR FOR
BERBLING.  ALLEGEDLY, A DECADE OF ACTIVE, BUT LAWFUL, EFFORTS TO
ACHIEVE RACIAL EQUALITY FOR THE BLACK RESIDENTS OF CAIRO HAD RESULTED
IN CONTINUING INTENTIONAL CONDUCT ON THE PART OF THOSE NAMED AS
DEFENDANTS IN THE COMPLAINT TO DEPRIVE THE PLAINTIFF-RESPONDENTS OF THE
EVENHANDED PROTECTION OF THE CRIMINAL LAWS, IN VIOLATION OF VARIOUS
AMENDMENTS TO THE CONSTITUTION AND 42 U.S.C. 1981, 1982, 1983, AND
1985. 

IN PARTICULAR, THE COMPLAINT CHARGED STATE'S ATTORNEY BERBLING WITH
PURPOSEFUL RACIAL DISCRIMINATION, UNDER COLOR OF STATE LAW, BY
NEGLECTING TO PROVIDE FOR RESPONDENTS' SAFETY THOUGH KNOWING OF THE
POSSIBILITY OF RACIAL DISORDERS, BY REFUSING TO PROSECUTE PERSONS WHO
THREATEN RESPONDENTS'  SAFETY AND PROPERTY, AND BY REFUSING TO PERMIT
RESPONDENTS TO GIVE EVIDENCE AGAINST WHITE PERSONS WHO THREATEN THEM. 
IT WAS ALLEGED, WITH PARTICULAR INCIDENTS RECOUNTED AS TO SOME CHARGES,
THAT "BERBLING HAS DENIED AND CONTINUES TO DENY" THE CONSTITUTIONAL
RIGHTS OF RESPONDENTS AND MEMBERS OF THEIR CLASS BY FOLLOWING THE
PRACTICES OF (A) REFUSING TO INITIATE CRIMINAL PROCEEDINGS AND TO HEAR
CRIMINAL CHARGES AGAINST WHITE PERSONS UPON COMPLAINT BY MEMBERS OF
RESPONDENTS' CLASS, /1/ (B) SUBMITTING MISDEMEANOR COMPLAINTS WHICH
HAVE BEEN FILED BY BLACK PERSONS AGAINST WHITES TO A GRAND JURY, RATHER
THAN PROCEEDING BY INFORMATION OR COMPLAINT, AND THEN EITHER
INTERROGATING WITNESSES AND COMPLAINANTS BEFORE THE GRAND JURY WITH
PURPOSEFUL INTENT TO RACIALLY DESCRIMINATE, /2/  OR FAILING TO
INTERROGATE THEM AT ALL, /3/  (C) INADEQUATELY PROSECUTING THE FEW
CRIMINAL PROCEEDINGS INSTITUTED AGAINST WHITES AT RESPONDENTS'  BEHEST
IN ORDER TO LOSE THE CASES OR SETTLE THEM ON TERMS MORE FAVORABLE THAN
THOSE BROUGHT AGAINST BLACKS, (D) RECOMMENDING SUBSTANTIALLY GREATER
BONDS AND SENTENCES IN CASES INVOLVING RESPONDENTS AND MEMBERS OF THEIR
CLASS THAN FOR CASES INVOLVING WHITES, (E) CHARGING RESPONDENTS AND
MEMBERS OF THEIR CLASS WITH SIGNIFICANTLY MORE SERIOUS CHARGES FOR
CONDUCT WHICH WOULD RESULT IN NO CHARGE OR A MINOR CHARGE AGAINST A
WHITE PERSON, AND (F) DEPRIVING RESPONDENTS OF THEIR RIGHT TO GIVE
EVIDENCE CONCERNING THE SECURITY OF MEMBERS OF THEIR CLASS.  /4/  EACH
OF THESE PRACTICES WAS ALLEGED TO BE WILLFUL, MALICIOUS, AND CARRIED
OUT WITH INTENT TO DEPRIVE RESPONDENTS AND MEMBERS OF THEIR CLASS OF
THE BENEFITS OF THE COUNTY CRIMINAL JUSTICE SYSTEM AND TO DETER THEM
FROM PEACEFULLY BOYCOTTING OR OTHERWISE ENGAGING IN PROTECTED FIRST
AMENDMENT ACTIVITY.  SINCE THERE WAS ASSERTED TO BE NO ADEQUATE REMEDY
AT LAW, RESPONDENTS REQUESTED THAT BERBLING BE ENJOINED FROM CONTINUING
THESE PRACTICES, THAT HE BE REQUIRED TO "SUBMIT A MONTHLY REPORT TO
(THE DISTRICT COURT) CONCERNING THE NATURE, STATUS AND DISPOSITION OF
ANY COMPLAINT BROUGHT TO HIM BY PLAINTIFFS OR MEMBERS OF THEIR CLASS,
OR BY WHITE PERSONS AGAINST PLAINTIFFS OR MEMBERS OF THEIR CLASS," AND
THAT THE DISTRICT COURT MAINTAIN CONTINUING JURISDICTION IN THIS
ACTION.  /5/ 

THE DISTRICT COURT DISMISSED THAT PORTION OF THE COMPLAINT
REQUESTING INJUNCTIVE RELIEF AGAINST BERBLING, AS WELL AS AGAINST
INVESTIGATOR SHEPHERD, MAGISTRATE O'SHEA, AND JUDGE DOROTHY SPOMER, FOR
WANT OF JURISDICTION TO GRANT ANY SUCH REMEDY, WHICH WAS PERCEIVED AS
DIRECTED AGAINST DISCRETIONARY ACTS ON THE PART OF THESE ELECTED STATE
OFFICIALS.  THE COURT OF APPEALS REVERSED, HOLDING THAT WHATEVER QUASI
JUDICIAL IMMUNITY FROM INJUNCTIVE PROSCRIPTION IT HAD PREVIOUSLY
RECOGNIZED WAS APPROPRIATE FOR A PROSECUTOR, WAS NOT ABSOLUTE, AND
SINCE RESPONDENTS' ALTERNATIVE REMEDIES AT LAW WERE THOUGHT TO BE
INADEQUATE, AN INJUNCTIVE REMEDY MIGHT BE AVAILABLE IF RESPONDENTS
COULD PROVE THEIR CLAIMS OF RACIAL DISCRIMINATION AT TRIAL.  /6/ 

THE COURT OF APPEALS RENDERED ITS DECISION ON OCTOBER 6, 1972.  AT
THE SUBSEQUENT ELECTION IN NOVEMBER OF THAT YEAR, PETITIONER W. C.
SPOMER /7/  WAS CHOSEN BY THE VOTERS TO SUCCEED BERBLING AS STATE'S
ATTORNEY FOR ALEXANDER COUNTY, AND SPOMER TOOK OFFICE ON DECEMBER 4. 
IN THE PETITION FOR CERTIORARI FILED WITH THIS COURT ON JANUARY 3,
1973, SEEKING REVIEW OF THE COURT OF APPEALS' APPROVAL OF THE
POSSIBILITY OF SOME FORM OF INJUNCTIVE RELIEF ADDRESSED TO THE STATE'S
ATTORNEY IN THE COURSE OF HIS PROSECUTORIAL ROLE, PETITIONER SPOMER
RELIED UPON SUPREME COURT RULE 48(3), WHICH PROVIDES THAT "(WHEN A
PUBLIC OFFICER IS A PARTY TO A PROCEEDING HERE IN HIS OFFICIAL CAPACITY
AND DURING ITS PENDENCY DIES, RESIGNS, OR OTHERWISE CEASES TO HOLD
OFFICE, THE ACTION DOES NOT ABATE AND HIS SUCCESSOR IS AUTOMATICALLY
SUBSTITUTED AS A PARTY."  RESPONDENTS DID NOT OPPOSE THE SUBSTITUTION,
/8/  AND WE GRANTED CERTIORARI AND SET THE CASE FOR ARGUMENT TOGETHER
WITH O'SHEA V. LITTLETON, ANTE, P. 488.  411 U.S. 915 (1973). 

IT HAS BECOME APPARENT, HOWEVER, THAT THERE IS NOTHING IN THE RECORD
UPON WHICH WE MAY FIRMLY BASE A CONCLUSION THAT A CONCRETE CONTROVERSY
BETWEEN W. C. SPOMER AND THE RESPONDENTS IS PRESENTED TO THIS COURT FOR
RESOLUTION.  NO ALLEGEATIONS IN THE COMPLAINT CITED ANY CONDUCT OF W.
C. SPOMER AS THE BASIS FOR EQUITABLE OR ANY OTHER RELIEF.  INDEED,
SPOMER IS NOT NAMED AS A DEFENDANT IN THE COMPLAINT AT ALL, AND, OF
COURSE, HE NEVER APPEARED BEFORE EITHER THE DISTRICT COURT OR THE COURT
OF APPEALS.  THE INJUNCTIVE RELIEF REQUESTED AGAINST FORMER STATE'S
ATTORNEY BERBLING, MOREOVER, IS BASED UPON AN ALLEGED PRACTICE OF
WILLFUL AND MALICIOUS RACIAL DISCRIMINATION EVIDENCED BY ENUMERATED
INSTANCES IN WHICH BERBLING FAVORED WHITE PERSONS AND DISFAVORED
NEGROES.  THE WRONGFUL CONDUCT CHARGED IN THE COMPLAINT IS PERSONAL TO
BERBLING, DESPITE THE FACT THAT HE WAS ALSO SUED IN HIS THEN CAPACITY
AS STATE'S ATTORNEY.  /9/  NO CHARGE IS MADE IN THE COMPLAINT THAT THE
POLICY OF THE OFFICE OF STATE'S ATTORNEY IS TO FOLLOW THE INTENTIONAL
PRACTICES ALLEGED, APART FROM THE ALLEGATION THAT BERBLING, AS THE
INCUMBENT AT THE TIME, WAS THEN CONTINUING THE PRACTICES HE HAD
PREVIOUSLY FOLLOWED.  CF. ALLEN V. REGENTS OF THE UNIVERSITY SYSTEM OF
GEORGIA, 304 U.S. 439, 444 - 445 (1938).  NOR HAVE RESPONDENTS EVER
ATTEMPTED TO SUBSTITUTE SPOMER FOR BERBLING AFTER THE COURT OF APPEALS
DECISION, SO FAR AS THE RECORD SHOW, OR MADE ANY RECORD ALLEGATIONS
THAT SPOMER INTENDS TO CONTINUE THE ASSERTED PRACTICES OF BERBLING OF
WHICH THEY COMPLAIN.  THE PLAIN FACT IS THAT ON THE RECORD BEFORE US,
RESPONDENTS HAVE NEVER CHARGED SPOMER WITH ANYTHING AND DO NOT
PRESENTLY SEEK TO ENJOIN HIM FROM DOING ANYTHING.  /10/  UNDER THESE
CIRCUMSTANCES, RECOGNIZING THAT THERE MAY NO LONGER BE A CONTROVERSY
BETWEEN RESPONDENTS AND ANY ALEXANDER COUNTY STATE'S ATTORNEY
CONCERNING INJUNCTIVE RELIEF TO BE APPLIED IN FUTUREO, SEE TWO GUYS V.
MCGINLEY, 366 U.S. 582, 588 (1961), WE REMAND TO THE COURT OF APPEALS
FOR A DETERMINATION, IN THE FIRST INSTANCE, OF WHETHER THE FORMER
DISPUTE REGARDING THE AVAILABILITY OF INJUNCTIVE RELIEF AGAINST THE
STATE'S ATTORNEY IS NOW MOOT AND WHETHER RESPONDENTS WILL WANT TO, AND
SHOULD BE PERMITTED TO, AMEND THEIR COMPLAINT TO INCLUDE CLAIMS FOR
RELIEF AGAINST THE PETITIONER.  CF. LAND V. DOLLAR, 330 U.S. 731, 739
(1947). 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND REMANDED FOR
FURTHER CONSIDERATION AND PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SPECIFIC EXAMPLES OF BERBLING'S PRACTICE WERE ALLEGED AS

  FOLLOWS: 

"(1) ON MARCH 28, 1969, DEFENDANT REFUSED TO PERMIT JAMES WILSON TO
FILE CRIMINAL CHARGES AGAINST CHARLIE SULLIVAN, A WHITE MAN, WHO
POINTED A GUN AT HIM AS HE (WILSON) ATTEMPTED TO MOVE INTO THE HOUSE
NEXT DOOR TO CHARLIE SULLIVAN ON 22ND STREET, IN CAIRO, ILLINOIS. 
SULLIVAN THREATENED WILSON WITH THE GUN AND TOLD HIM TO MOVE THE TRUCK
CONTAINING HOUSEHOLD FURNISHINGS AND LEAVE THE AREA, THEREBY ATTEMPTING
TO PREVENT JAMES WILSON FROM HOLDING PROPERTY. 

"(2) ON OR ABOUT MARCH 29, 1969, DEFENDANT REFUSED TO PERMIT JAMES
WILSON TO FILE CRIMINAL CHARGES AGAINST CHARLIE SULLIVAN WHO FIRED
SHOTS FROM A GUN AROUND JAMES WILSON'S HOME TO INTIMIDATE HIS FAMILY IN
ORDER TO PREVENT JAMES WILSON FROM HOLDING PROPERTY. 

"(3) IN JANUARY, 1970, DEFENDANT REFUSED TO PERMIT ROBERT MARTIN TO
FILE CHARGES AGAINST CHARLIE SULLIVAN, WHO TRIED TO RUN HIM DOWN IN A
TRUCK WHILE PEACEFULLY MARCHING IN EXERCISE OF HIS FIRST AMENDMENT
RIGHTS. 

"(4) IN JUNE, 1970, DEFENDANT REFUSED TO PERMIT EZELL LITTLETON TO
FILE CHARGES AGAINST A WHITE MAN WHO WITHOUT CAUSE OR JUSTIFICATION
ASSUALTED AND BATTERED HIM. 

"(5) IN JUNE, 1970, DEFENDANT REFUSED TO PERMIT REV. MANKER HARRIS
TO FILE CHARGES AGAINST TWO WHITE POLICEMEN OF THE CITY OF CAIRO FOR
ATTEMPTED MURDER AND/OR MALICIOUS PROSECUTION. 

"(6) ON AUGUST 10, 1970, DEFENDANT BERBLING, THROUGH A SUBORDINATE,
DEFENDANT EARL SHEPHERD, REFUSED TO PERMIT PLAINTIFF HAZEL JAMES TO
FILE CRIMINAL CHARGES AGAINST RAYMOND HURST, A WHITE MAN, WHO HAD
KICKED PLAINTIFF JAMES IN THE STOMACH WHILE SHE WAS PEACEFULLY
DEMONSTRATING AGAINST THE RACIALLY DISCRIMINATORY PRACTICES OF
MERCHANTS AND OF PUBLIC OFFICIALS OF THE CITY OF CAIRO. 

"(7) IN MAY, 1969, PLAINTIFF EWING AND EIGHT OTHERS COULD HAVE
(BROUGHT) AND DESIRED TO BRING CRIMINAL CHARGES AGAINST A WHITE MAN WHO
THREATENED THEM WITH A SHOTGUN, BUT DID NOT BECAUSE THEY KNEW OF
DEFENDANT'S PRACTICE OF REFUSING TO TAKE COMPLAINTS AND WERE
DISCOURAGED FROM MAKING USELESS GESTURES." 

/2/  CITED IN SUPPORT OF THIS ALLEGATION WAS AN INCIDENT WHEN
"MORRIS GARRETT (A 13 YEAR OLD BOY), ON AUGUST 8, 1970, DURING A
DEMONSTRATION AGAINST THE RACIALLY DISCRIMINATORY PRACTICES OF
MERCHANTS AND PUBLIC OFFICIALS OF THE CITY OF CAIRO, WAS STRUCK BY ONE
TOM MADRA.  A COMPLAINT WAS FILED WHICH WAS PRESENTED TO THE GRAND
JURY.  MORRIS GARRETT APPEARED BEFORE THE GRAND JURY.  DEFENDANT
BERBLING, RATHER THAN QUESTION HIM REGARDING THE INCIDENT, ASKED HIM
SUCH QUESTIONS AS 'DID YOU GET PAID FOR PICKETING?'  A NO-TRUE BILL WAS
RETURNED BY THE GRAND JURY." 

/3/  TWO EPISODES OF THIS TYPE WERE DESCRIBED: 

"(1) ON AUGUST 13, 1973, CHERYL GARRETT AND YVONDA TAYLOR, AGES 18
AND 16 RESPECTIVELY, WERE SHOT AT BY ONE JACK GUETTERMAN, JR. GARRETT
AND EZELL LITTLETON, FOLLOWING A TELEPHONE CALL FROM THE YOUNG GIRLS,
WENT TO THE SCENE OF THE SHOOTING.  SHORTLY THEREAFTER POLICE OFFICERS
ARRIVED.  WHILE REV. WALTER GARRETT WAS DISCUSSING THE SITUATION WITH
ONE POLICE OFFICER, ONE JACK GUETTERMAN, SR. STRUCK REV. GARRETT IN THE
FACE, CAUSING HIM TO FALL TO THE GROUND.  A COMPLAINT WAS FILED BY REV.
WALTER GARRETT RESPECTING THIS INCIDENT.  DEFENDANT BERBLING PRESENTED
THE COMPLAINT TO THE GRAND JURY, BUT REV. GARRETT WAS NOT INTERROGATED
AT ALL RESPECTING THE INCIDENT.  EZELL LITTLETON, WHO WITNESSED THE
ASSAULT, WAS NOT CALLED TO TESTIFY. 

"(2) ON OR ABOUT AUGUST 8, 1970, CURTIS JOHNSON WAS STRUCK BY ONE AL
MOSS WHILE DEMONSTRATING AGAINST THE RACIALLY DISCRIMINATORY PRACTICES
OF MERCHANTS AND PUBLIC OFFICIALS OF THE CITY OF CAIRO.  A COMPLAINT
WAS FILED, WHICH WAS PRESENTED TO THE GRAND JURY.  CURTIS JOHNSON,
HOWEVER, WAS NOT INTERROGATED BY DEFENDANT BERBLING RESPECTING THE
INCIDENT." 

/4/  THUS, RESPONDENTS ALLEGED THAT BERBLING SOUGHT THE "DROPPING OF
A CRIMINAL CHARGE ARISING OUT OF A COMPLAINT FILED BY FRANK HOLLIS, A
BLACK PERSON, AGAINST TOM MADRA, A WHITE PERSON, IN RETURN FOR WHICH
(BERBLING) WOULD DROP PENDING CRIMINAL CHARGES AGAINST SEVERAL OF THE
(RESPONDENTS)." 

/5/  DAMAGES WERE ALSO SOUGHT AGAINST BERBLING FOR THESE PRACTICES
AND FOR AN ALLEGED CONSPIRACY WITH HIS INVESTIGATOR, SHEPHERD, TO
REFUSE TO PROSECUTE THOSE WHO THREATENED RESPONDENTS' SAFETY AND TO
PREVENT THEM FROM GIVING EVIDENCE AGAINST WHITES CONCERNING ACTS
THREATENING THEIR PERSONAL SAFETY.  AS TO THE LATTER, THE SIXTH EXAMPLE
IN N. 1, SUPRA, WAS REITERATED.  THE COURT OF APPEALS HELD THAT
"INSOFAR AS DEFENDANT BERBLING WAS ACTING WITHIN HIS PROSECUTORIAL
FUNCTION HE HAS A QUASI-JUDICIAL IMMUNITY FROM SUIT FOR DAMAGES UNDER
THE CIVIL RIGHTS ACTS," 468 F.2D 389, 410, AND REMANDED TO ALLOW
RESPONDENTS TO AMEND THE COMPLAINT AND TO HAVE THE DISTRICT COURT
DETERMINE IN THE FIRST INSTANCE WHETHER SOME OF THE ACTS THEN ALLEGED
WOULD BE SUFFICIENTLY REMOVED FROM QUASI-JUDICIAL ACTIVITY "TO WARRANT
REMOVING THE CLOAK OF IMMUNITY FROM THEM."  ID., AT 410 - 411. 
BERBLING'S PETITION FOR CERTIORARI QUESTIONING THIS ASPECT OF THE COURT
OF APPEALS' RULING WAS NOT TIMELY FILED IN THIS COURT AND HAS BEEN
DENIED.  NO. 72 - 1107, POST, P. 1143.  NO QUESTION CONCERNING DAMAGE
RELIEF IS INVOLVED IN THE CASE PRESENTLY BEFORE US.     /6/  THE SCOPE
OF ANY INJUNCTION WHICH MIGHT BE FOUND WARRANTED WAS NOT FINALLY
ESTABLISHED OR RESTRICTED.  IT WAS SUGGESTED THAT AN INITIAL DECREE
MIGHT REQUIRE "ONLY PERIDIC REPORTS OF VARIOUS TYPES OF AGGREGATE DATA
ON ACTIONS ON BAIL AND SENTENCING AND DISPOSITIONS OF COMPLAINTS," AND
CONFIDENCE WAS EXPRESSED THAT THE DISTRICT COURT WOULD BE ABLE TO
ESTABLISH FURTHER GUIDES AS REQUIRED AND, IF NECESSARY, TO CONSIDER
INDIVIDUAL DECISIONS.  468 F.2D, AT 415. 

/7/  STATE'S ATTORNEY W. C. SPOMER SHOULD NOT BE CONFUSED WITH JUDGE
DOROTHY SPOMER, A PETITIONER IN O'SHEA V. LITTLETON, ANTE, P. 488. 

/8/  IN THEIR BRIEF IN OPPOSITION TO THE PETITION, P. 6, RESPONDENTS
STATED THAT THEY "SEEK ONLY EQUITABLE RELIEF AGAINST PETITIONER W. C.
SPOMER.  BECAUSE THE AMENDED COMPLAINT ASKS RELIEF AGAINST BERBLING IN
HIS INDIVIDUAL AS WELL AS HIS OFFICIAL CAPACITY, HE REMAINS A PARTY IN
INTEREST IN THIS ACTION."  OF COURSE, SPOMER, NOT BERBLING, FILED FOR
REVIEW OF THE COURT OF APPEALS' DECISION RESPECTING INJUNCTIVE RELIEF,
AND BERBLING IS NOT BEFORE THE COURT IN THIS CASE.  NOR DID RESPONDENTS
EVER SEEK RELIEF OF ANY KIND AGAINST SPOMER BY THEIR COMPLAINT. 

/9/  SUPREME COURT RULE 48(3), GOVERNING AUTOMATIC SUBSTITUTION OF
SUCCESSOR PUBLIC OFFICERS WHEN THE PREDECESSOR WAS A PARTY "IN HIS
OFFICAL CAPACITY," IS BASED UPON FED. RULE CIV. PROC. 25(D), AS AMENDED
IN 1961.  PRIOR TO THE 1961 AMENDMENT, SUBSTITUTION WAS NOT AUTOMATIC. 
THE HISTORY AND APPLICATION OF FORMER AND PRESENT RULE 25(D) ARE
SKETCHED IN 3B J. MOORE, FEDERAL PRACTICE PARA. 25.09(1) - (3) (2D ED
1969).  OF PARTICULAR RELEVANCE IS THE ADVISORY COMMITTEE NOTE ON THE
1961 "AUTOMATIC SUBSTITUTION" AMENDMENT TO RULE 25(D), WHICH SUGGESTS
THAT "(IN GENERAL IT WILL APPLY WHENEVER EFFECTIVE RELIEF WOULD CALL
FOR CORRECTIVE BEHAVIOR BY THE ONE THEN HAVING OFFICAL STATUS AND
POWER, RATHER THAN ONE WHO HAS LOST THAT STATUS AND POWER THOUGH
CEASING TO HOLD OFFICE."  SEE ID., PARA. 25.09(3), AT 25-403, 25-404. 
THE QUESTION OF WHETHER CORRECTIVE BEHAVIOR IS THOUGHT TO BE NECESSARY
IS, OF COURSE, DEPENDENT ON WHETHER THE DISPUTE WITH THE PREDECESSOR
CONTINUES WITH THE SUCCESSOR. 

/10/  DISPITE THE STATEMENT RESPONDENTS MADE IN THEIR BRIEF IN
OPPOSITION TO THE PETITION FOR CERTIORARI, N. S, SUPRA, THE RECORD DOES
NOT CONTAIN ANY INDICATION THAT RESPONDENTS HAVE EVER SOUGHT INJUNCTIVE
RELIEF AGAINST SPOMER IN ANY PROCEEDINGS IN THE DISTRICT COURT OR THE
COURT OF APPEALS.  NOR WOULD THEY HAVE HAD REASON TO DO SO IN THE
ABSENCE OF KNOWLEDGE THAT HE WOULD SUCCEED BERBLING.  WHILE SPOMER DID
SUBSTITUTE HIMSELF IN PLACE OF HIS PREDECESSOR, AND HIS COUNSEL MADE
THE SOMEWHAT EXTRAORDINARY STATEMENT AT ORAL ARGUMENT THAT "THERE IS
NOTHING IN THIS RECORD, NOR WILL THERE BE ON THE PART OF MY CLIENT, TO
INDICATE THAT HE WOULD CHANGE THE POLICIES WHICH ARE ALLEGED TO HAVE
BEEN EXERCISED BY HIS PREDECESSOR," TR. OF ORAL ARG. 7, TO DETERMINE
WHETHER RESPONDENTS HAVE A LIVE CONTROVERSY WITH SPOMER, WE MUST LOOK
TO THE CHARGES THEY PRESS.  INDEED, COUNSEL FOR RESPONDENTS OBSERVED AT
ORAL ARGUMENT OF THIS CASE THAT "IN ORDER FOR US TO PROCEED AGAINST MR.
SPOMER, IT WOULD BE NECESSARY FOR US TO INVESTIGATE THE FACTS TO SEE
THAT THE CONCESSION APPARENTLY MADE BY THE STATE'S ATTORNEY IT TRUE AND
AMEND OUR COMPLAINT."  ID., AT 19.  THIS MERELY SERVES TO UNDERSCORE
OUR CONCERN THAT WE ARE BEING ASKED TO RENDER AN OPINION ON THE MERITS
OF WHAT IS NOW AND MAY CONTINUE TO BE A HYPOTHETICAL OR ABSTRACT
DISPUTE.  SEE AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240 - 241
(1937); UNITED STATES V. FRUEHAUF, 365 U.S. 146, 157 (1961); NORTH
CAROLINA V. RICE, 404 U.S. 244, 245 - 246 (1971). 

JAMES B. ZAGEL ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS PATRICK F. HEALY. 

ALAN M. WISEMAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE JAMES B. O'SHAUGHNESSY AND MICHAEL P. SENG.* 

*BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF ASSISTANT
ATTORNEY GENERAL, DORIS H. MAIER AND EDWARD P. O'BRIEN, ASSISTANT
ATTORNEYS GENERAL, AND ROBERT R. GRANUCCI, DEPUTY ATTORNEY GENERAL, FOR
THE STATE OF CALIFORNIA; AND BY JOSEPH P. BUSCH FOR THE DISTRICT
ATTORNEY OF LOS ANGELES COUNTY. 
..END :



















SCHMIDT V. LESSARD, 414 U.S. 473 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF WISCONSIN

        NO. 73 - 568.  DECIDED JANUARY 14, 1974; 349 F.SUPP.  1078,

        VACATED AND REMANDED. 


    THE THREE-JUDGE DISTRICT COURT'S ORDER, IN A CLASS ACTION

  CHALLENGING THE CONSTITUTIONALITY OF THE WISCONSIN STATUTORY

  SCHEME FOR INVOLUNTARY COMMITMENT OF MENTAL PATIENTS, THAT

  "JUDGMENT BE AND HEREBY IS ENTERED IN ACCORDANCE WITH THE OPINION

  HERETOFORE ENTERED," WHICH OPINION STATED THAT APPELLEES WERE

  ENTITLED TO INJUNCTIVE RELIEF AGAINST FURTHER INFORCEMENT OF "THE

  PRESENT WISCONSIN SCHEME," IS SUFFICIENT AS AN ORDER "GRANTING"

  AN INJUNCTION TO INVOKE THIS COURT'S APPELLATE JURISDICTION UNDER

28 U.S.C. 1253.  GUNN V. UNIVERSITY COMMITTEE, 399 U.S. 383,

  DISTINGUISHED.  FOR PURPOSES OF PLENARY JUDICIAL REVIEW, HOWEVER,

  THE COURT'S ORDER DOES NOT SATISFY THE REQUIREMENTS OF FED. RULE

  CIV. PROC. 65(D) THAT AN ORDER GRANTING AN INJUNCTION "BE

  SPECIFIC IN TERMS"  AND "DESCRIBE IN REASONABLE DETAIL ... THE

  ACT OR ACTS SOUGHT TO BE RESTRAINED...." 

PER CURIAM. 

IN OCTOBER AND NOVEMBER 1971, APPELLEE ALBERTA LESSARD WAS SUBJECTED
TO A PERIOD OF INVOLUNTARY COMMITMENT UNDER THE WISCONSIN STATE MENTAL
HEALTH ACT, WIS. STAT. 51.001 ET SEQ. WHILE IN CONFINEMENT, SHE FILED
THIS SUIT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF WISCONSIN, ON BEHALF OF HERSELF AND ALL OTHER PERSONS 18 YEARS OF
AGE OR OLDER WHO WERE BEING HELD INVOLUNTARILY PURSUANT TO THE
WISCONSIN INVOLUNTARY-COMMITMENT LAWS, ALLEGING THAT THE STATUTORY
SCHEME WAS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  JURISDICTION WAS PREDICATED ON 28 U.S.C. 1343(3) AND 42
U.S.C. 1983.  SINCE BOTH DECLARATORY AND INJUNCTIVE RELIEF WERE SOUGHT,
A DISTRICT COURT OF THREE JUDGES WAS CONVENED, PURSUANT TO 28 U.S.C.
2281. 

AFTER HEARING ARGUMENT AND RECEIVING BRIEFS, THE DISTRICT COURT
FILED A COMPREHENSIVE OPINION, DECLARING THE WISCONSIN STATUTORY SCHEME
UNCONSTITUTIONAL.  349 F.SUPP.  1078.  THE OPINION CONCLUDED BY STATING
THAT 

"ALBERTA LESSARD AND THE OTHER MEMBERS OF HER CLASS ARE

ENTITLED TO DECLARATORY AND INJUNCTIVE RELIEF AGAINST FURTHER

  ENFORCEMENT OF THE PRESENT WISCONSIN SCHEME AGAINST THEM....

  (MISS LESSARD) IS ALSO ENTITLED TO AN INJUNCTION AGAINST ANY

  FURTHER EXTENSIONS OF THE INVALID ORDER WHICH CONTINUES TO MAKE

  HER SUBJECT TO THE JURISDICTION OF THE HOSPITAL AUTHORITIES." 

  ID., AT 1103. 

OVER NINE MONTHS LATER, THE DISTRICT COURT ENTERED A JUDGMENT, WHICH
SIMPLY STATED THAT 

     "IT IS ORDERED AND ADJUDGED THAT JUDGMENT BE AND HEREBY IS

  ENTERED IN ACCORDANCE WITH THE OPINION HERETOFORE ENTERED...." 

THE DEFENDANTS NOW SEEK TO INVOKE THE APPELLATE JURISDICTION OF THIS
COURT, PURSUANT TO 28 U.S.C. 1253.  THAT STATUTE PROVIDES THAT 

     "EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO

  THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE

AND HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY

  CIVIL ACTION, SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS

  TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

IN RESPONSE, THE APPELLEE HAS FILED A MOTION TO DISMISS THE APPEAL
FOR WANT OF JURISDICTION.  RELYING UPON THIS COURT'S DECISION IN GUNN
V. UNIVERSITY COMMITTEE TO END THE WAR, 399 U.S. 383, THEY CLAIM THAT
THE DISTRICT COURT'S JUDGMENT DID NOT CONSTITUTE "AN ORDER GRANTING OR
DENYING"  AN INJUNCTION. 

IN GUNN, A STATUTORY THREE-JUDGE COURT HAD FOUND A TEXAS BREACH OF
THE PEACE STATUTE UNCONSTITUTIONAL.  THERE, AS HERE, THE OPINION OF THE
DISTRICT COURT CONCLUDED BY STATING THAT THE PLAINTIFFS "ARE ENTITLED
TO ... INJUNCTIVE RELIEF."  UNIVERSITY COMMITTEE TO END THE WAR V.
GUNN, 289 F.SUPP.  469, 475 (WD TEX.).  THE DISTRICT COURT IN GUNN,
HOWEVER, ENTERED NO FURTHER ORDER OR JUDGMENT OF ANY KIND; THE
CONCLUDING PARAGRAPH OF THE OPINION WAS THE ONLY MENTION OF INJUNCTIVE
RELIEF.  THUS, WE CONCLUDED THAT WE LACKED JURISDICTION TO HEAR THE
APPEAL UNDER 28 U.S.C. 1253, BECAUSE OF THE TOTAL ABSENCE OF ANY ORDER
"GRANTING OR DENYING" AN INJUNCTION. 

ALTHOUGH THE LANGUAGE OF THE DISTRICT COURT OPINION HERE PARALLELS
THAT IN GUNN, THERE IS THUS AN IMPORTANT DISTINCTION BETWEEN THE TWO
CASES.  WHILE THE RECORD IN GUNN WAS DEVOID OF ANY ORDER GRANTING
INJUNCTIVE RELIEF, THERE WAS IN THE PRESENT CASE A JUDGMENT ENTERED "IN
ACCORDANCE WITH THE OPINION."  SINCE THE OPINION OF THE DISTRICT COURT
BY ITS OWN TERMS AUTHORIZES THE GRANTING OF INJUNCTIVE RELIEF TO THE
APPELLEE, WE BELIEVE THAT THE JUDGMENT HERE IS SUFFICIENT TO INVOKE OUR
JURISDICTION UNDER 28 U.S.C. 1253. 

YET, ALTHOUGH SUFFICIENT TO INVOKE OUR APPELLATE JURISDICTION, THE
DISTRICT COURT'S ORDER PROVIDES A WHOLLY INADEQUATE FOUNDATION UPON
WHICH TO PREMISE PLENARY JUDICIAL REVIEW.  RULE 65(D) OF THE FEDERAL
RULES OF CIVIL PROCEDURE PROVIDES, IN RELEVANT PART: 

     "EVERY ORDER GRANTING AN INJUNCTION AND EVERY RESTRAINING
ORDER

  SHALL SET FORTH THE REASONS FOR ITS ISSUANCE; SHALL BE SPECIFIC

  IN TERMS; SHALL DESCRIBE IN REASONABLE DETAIL, AND NOT BY

  REFERENCE TO THE COMPLAINT OR OTHER DOCUMENT, THE ACT OR ACTS

  SOUGHT TO BE RESTRAINED...." 

THE ORDER HERE FALLS FAR SHORT OF SATISFYING THE SECOND AND THIRD
CLAUSES OF RULE 65(D).  NEITHER THE BRIEF JUDGMENT ORDER NOR THE
ACCOMPANYING OPINION IS "SPECIFIC"  IN OUTLINING THE "TERMS" OF THE
INJUNCTIVE RELIEF GRANTED; NOR CAN IT BE SAID THAT THE ORDER DESCRIBES
"IN REASONABLE DETAIL ... THE ACT OR ACTS SOUGHT TO BE RESTRAINED." 
RATHER, THE DEFENDANTS ARE SIMPLY TOLD NOT TO ENFORCE "THE PRESENT
WISCONSIN SCHEME" AGAINST THOSE IN THE APPELLEES'  CLASS. 

AS WE HAVE EMPHASIZED IN THE PAST, THE SPECIFICITY PROVISIONS OF
RULE 65(D) ARE NO MERE TECHNICAL REQUIREMENTS.  THE RULE WAS DESIGNED
TO PREVENT UNCERTAINTY AND CONFUSION ON THE PART OF THOSE FACED WITH
INJUNCTIVE ORDERS, AND TO AVOID THE POSSIBLE FOUNDING OF A CONTEMPT
CITATION ON A DECREE TOO VAGUE TO BE UNDERSTOOD.  INTERNATIONAL
LONGSHOREMEN'S ASSN. V. PHILADELPHIA MARINE TRADE ASSN., 389 U.S. 64,
74 - 76; GUNN, SUPRA, AT 388 - 389.  SEE GENERALLY 7 J. MOORE, FEDERAL
PRACTICE 65.11; 11 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND
PROCEDURE 2955.  /1/  SINCE AN INJUNCTIVE ORDER PROHIBITS CONDUCT UNDER
THREAT OF JUDICIAL PUNISHMENT, BASIC FAIRNESS REQUIRES THAT THOSE
ENJOINED RECEIVE EXPLICIT NOTICE OF PRECISELY WHAT CONDUCT IS
OUTLAWED.  /2/ 

THE REQUIREMENT OF SPECIFICITY IN INJUNCTION ORDERS PERFORMS A
SECOND IMPORTANT FUNCTION.  UNLESS THE TRIAL COURT CAREFULLY FRAMES ITS
ORDERS OF INJUNCTIVE RELIEF, IT IS IMPOSSIBLE FOR AN APPELLATE TRIBUNAL
TO KNOW PRECISELY WHAT IT IS REVIEWING.  GUNN, SUPRA, AT 388.  WE CAN
HARDLY BEGIN TO ASSESS THE CORRECTNESS OF THE JUDGMENT ENTERED BY THE
DISTRICT COURT HERE WITHOUT KNOWING ITS PRECISE BOUNDS.  IN THE ABSENCE
OF SPECIFIC INJUNCTIVE RELIEF, INFORMED AND INTELLIGENT APPELLATE
REVIEW IS GREATLY COMPLICATED, IF NOT MADE IMPOSSIBLE. 

HENCE, ALTHOUGH THE ORDER BELOW IS SUFFICIENT TO INVOKE OUR
APPELLATE JURISDICTION, IT PLAINLY DOES NOT SATISFY THE IMPORTANT
REQUIREMENTS OF RULE 65(D).  ACCORDINGLY, WE VACATE THE JUDGMENT OF THE
DISTRICT COURT AND REMAND THE CASE TO THAT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              VACATED AND REMANDED. 

/1/  THE RECORD IN THIS CASE SUGGESTS THAT A GOOD DEAL OF CONFUSION
HAS BEEN ENGENDERED BY THE ABSENCE OF A SPECIFIC INJUNCTIVE ORDER. 
ABOUT SIX MONTHS AFTER THE OPINION IN THIS ACTION WAS ENTERED, THE
APPELLEE SUBMITTED A MEMORANDUM TO THE DISTRICT COURT, ALLEGING
NUMEROUS INSTANCES OF "NONCOMPLIANCE" WITH THE DECISION AND REQUESTING
AFFIRMATIVE JUDICIAL RELIEF.  NO ACTION WAS TAKEN ON THIS REQUEST, AND,
ON JULY 18, 1973, BOTH THE APPELLEES AND THE APPELLANTS JOINED IN A
"MOTION TO RECONVENE FOR CLARIFICATION OF OPINION."  THAT MOTION
OUTLINED THE UNCERTAINTY THAT HAD FOLLOWED THE DISTRICT COURT'S
ORIGINAL OPINION, AND ASKED THE COURT TO "CLARIFY" ITS PRECISE
HOLDINGS.  THE DISTRICT COURT HAS TAKEN NO ACTION ON THIS JOINT MOTION,
PERHAPS BECAUSE OF THE SUBSEQUENT FILING OF A NOTICE OF APPEAL. 

/2/  "THE JUDICIAL CONTEMPT POWER IS A POTENT WEAPON.  WHEN IT IS
FOUNDED UPON A DECREE TOO VAGUE TO BE UNDERSTOOD, IT CAN BE A DEADLY
ONE.  CONGRESS RESPONDED TO THAT DANGER BY REQUIRING THAT A FEDERAL
COURT FRAME ITS ORDERS SO THAT THOSE WHO MUST OBEY THEM WILL KNOW WHAT
THE COURT INTENDS TO REQUIRE AND WHAT IT MEANS TO FORBID." 
INTERNATIONAL LONGSHOREMEN'S ASSN. V. PHILADELPHIA MARINE TRADE ASSN.,
389 U.S. 64, 76. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :










VACHON V. NEW HAMPSHIRE, 414 U.S. 478 


       APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE NO. 73 -

           573.  DECIDED JANUARY 14, 1974; 113 N.H. 239, 306 A.2D

           781, REVERSED AND REMANDED. 


    ON THE BASIS OF EVIDENCE THAT A 14-YEAR-OLD GIRL BOUGHT A

  BUTTON INSCRIBED "COPULATION NOT MASTURBATION" AT A STORE

  OPERATED BY HIM, APPELLANT WAS CONVICTED OF "WILFULLY"

  CONTRIBUTING TO THE DELINQUENCY OF A MINOR IN VIOLATION OF A NEW

  HAMPSHIRE STATUTE.  THE NEW HAMPSHIRE SUPREME COURT AFFIRMED. 

  HELD:  AN INDEPENDENT EXAMINATION OF THE TRIAL RECORD PURSUANT TO

  SUPREME COURT RULE 40(1)(D)(2) DISCLOSES THAT EVIDENCE IS

  COMPLETELY LACKING THAT APPELLANT PERSONALLY SOLD THE GIRL THE

  BUTTON OR THAT HE WAS AWARE OF THE SALE OR PRESENT IN THE STORE

  AT THE TIME, A FATAL VOID IN THE STATE'S CASE THAT WAS NOT FILLED

BY APPELLANT'S CONCESSION AT TRIAL THAT HE "CONTROLLED THE

  PREMISES" AT THE TIME.  A CONVICTION BASED ON A RECORD COMPLETELY

  LACKING ANY RELEVANT EVIDENCE AS TO A CRUCIAL ELEMENT OF THE

  OFFENSE CHARGED VIOLATES DUE PROCESS. 

PER CURIAM. 

A 14 - YEAR-OLD GIRL BOUGHT A BUTTON INSCRIBED "COPULATION NOT
MASTURBATION"  AT THE HEAD SHOP IN MANCHESTER, NEW HAMPSHIRE.  IN
CONSEQUENCE, APPELLANT, OPERATOR OF THE SHOP, WAS SENTENCED TO 30 DAYS
IN JAIL AND FINED $100 AFTER CONVICTION UPON A CHARGE OF "WILFULLY"
CONTRIBUTING TO THE DELINQUENCY OF A MINOR IN VIOLATION OF NEW
HAMPSHIRE'S REV. STAT. ANN. 169:32 (SUPP. 1972).  /1/  IN AFFIRMING THE
CONVICTION, THE NEW HAMPSHIRE SUPREME COURT HELD THAT THE "WILFULLY"
COMPONENT OF THE OFFENSE REQUIRED THAT THE STATE PROVE THAT THE ACCUSED
ACTED "'VOLUNTARILY AND INTENTIONALLY AND NOT BECAUSE OF MISTAKE OR
ACCIDENT OR OTHER INNOCENT REASON.'"  113 N.H. 239, 242, 306 A. 2D 781,
784 (1973).  THUS, THE STATE WAS REQUIRED TO PRODUCE EVIDENCE THAT
APPELLANT, KNOWING THE GIRL TO BE A MINOR, /2/ PERSONALLY SOLD HER THE
BUTTON, OR PERSONALLY CAUSED ANOTHER TO SELL IT TO HER.  APPELLANT
UNSUCCESSFULLY SOUGHT DISMISSAL OF THE CHARGE AT THE CLOSE OF THE
STATE'S CASE ON THE GROUND THAT THE STATE HAD PRODUCED NO EVIDENCE TO
MEET THIS REQUIREMENT, AND UNSUCCESSFULLY URGED THE SAME GROUND AS A
REASON FOR REVERSAL IN THE STATE SUPREME COURT.  WE HAVE REVIEWED THE
TRANSCRIPT OF THE TRIAL ON THIS ISSUE, PURSUANT TO RULE 40(1)(D)(2) OF
THE RULES OF THIS COURT.  /3/

OUR INDEPENDENT EXAMINATION OF THE TRIAL RECORD DISCLOSES THAT
EVIDENCE IS COMPLETELY LACKING THAT APPELLANT PERSONALLY SOLD THE GIRL
THE BUTTON OR EVEN THAT HE WAS AWARE OF THE SALE OR PRESENT IN THE
STORE AT THE TIME.  THE GIRL WAS THE STATE'S ONLY WITNESS TO THE SALE. 
SHE TESTIFIED THAT SHE AND A GIRL FRIEND ENTERED THE STORE AND LOOKED
AROUND UNTIL THEY SAW "A VELVET DISPLAY CARD ON A COUNTER" FROM WHICH
THEY "PICKED OUT (THE) PIN."  SHE WENT TO SOME PERSON IN THE STORE WITH
THE BUTTON "CUPPED IN (HER) HAND"  AND PAID THAT PERSON 25 CENTS FOR
THE BUTTON.  SHE DID NOT SAY THAT APPELLANT WAS THAT PERSON, OR EVEN
THAT SHE SAW HIM IN THE STORE.  RATHER, SHE TESTIFIED THAT SHE COULD
NOT IDENTIFY WHO THE PERSON WAS.  WE THEREFORE AGREE WITH JUSTICE
GRIMES, DISSENTING, THAT "THERE IS NO EVIDENCE WHATEVER THAT THE
DEFENDANT SOLD THE BUTTON, THAT HE KNEW IT HAD BEEN SOLD TO A MINOR,
THAT HE AUTHORIZED SUCH SALES TO MINORS OR THAT HE WAS EVEN IN THE
STORE AT THE TIME OF THE SALE."  113 N.H., AT 244, 306 A. 2D, AT 785. 
THIS FATAL VOID IN THE STATE'S CASE WAS NOT FILLED BY APPELLANT'S
CONCESSION AT TRIAL THAT HE "CONTROLLED THE PREMISES ON JULY 26."  THAT
CONCESSION WAS EVIDENCE AT MOST THAT HE OPERATED THE SHOP; IT WAS IN NO
WAY PROBATIVE OF THE CRUCIAL ELEMENT OF THE CRIME THAT HE PERSONALLY
SOLD THE MINOR THE BUTTON OR PERSONALLY CAUSED IT TO BE SOLD TO HER. 

IN THESE CIRCUMSTANCES, THE CONVICTION MUST BE REVERSED.  "IT IS
BEYOND QUESTION, OF COURSE, THAT A CONVICTION BASED ON A RECORD LACKING
ANY RELEVANT EVIDENCE AS TO A CRUCIAL ELEMENT OF THE OFFENSE CHARGED
... VIOLATES) DUE PROCESS."  HARRIS V. UNITED STATES, 404 U.S. 1232,
1233 (1971).  (DOUGLAS, J., IN CHAMBERS); THOMPSON V. LOUISVILLE, 362
U.S. 199 (1960); JOHNSON V. FLORIDA, 391 U.S. 596 (1968); SEE ALSO
ADDERLEY V. FLORIDA, 385 U.S. 39, 44 (1966). 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE NEW
HAMPSHIRE SUPREME COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE STATUTE PROVIDES IN PERTINENT PART: 

"(ANYONE ... WHO ... HAS KNOWINGLY OR WILFULLY DONE ANY ACT TO ...
CONTRIBUTE TO THE DELINQUENCY OF (A) CHILD, MAY BE PUNISHED BY A FINE
OF NOT MORE THAN FIVE HUNDRED DOLLARS OR BY IMPRISONMENT FOR NOT MORE
THAN ONE YEAR OR BOTH." 

/2/  THE COMPLAINT CHARGED THAT APPELLANT "DID WILFULLY CONTRIBUTE
TO THE DELINQUENCY OF A MINOR BY SELLING OR CAUSING TO BE SOLD A BUTTON
WITH OBSCENE MATERIAL WITH SLOGAN ON SAME, TO WIT, 'COPULATION NOT
MASTURBATION' TO ... A MINOR CHILD OF THE AGE OF 14 YEARS, KNOWING THE
SAID CHILD WAS A MINOR...." 

/3/  THE RULE PROVIDES, IN PERTINENT PART, THAT: "QUESTIONS NOT
PRESENTED ACCORDING TO (THE REQUIREMENTS OF THIS RULE) WILL BE
DISREGARDED, SAVE AS THE COURT, AT ITS OPTION, MAY NOTICE A PLAIN ERROR
NOT PRESENTED."  THIS DISCRETION HAS BEEN LONG ACKNOWLEDGED, SEE
COLUMBIA HEIGHTS REALTY CO. V. RUDOLPH, 217 U.S. 547 (1910), RECENTLY
AFFIRMED IN BLONDER-TONGUE LABORATORIES, INC. V. UNIVERSITY OF ILLINOIS
FOUNDATION, 402 U.S. 313, 320 N. 6 (1971), AND EXTENDS TO REVIEW OF THE
TRIAL COURT RECORD, SEE SIBBACH V. WILSON & CO., 312 U.S. 1 (1941). 
SEE ALSO TERMINIELLO V. CHICAGO, 337 U.S. 1 (1949). 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

APPELLANT DENIS M. VACHON OPERATES THE HEAD SHOP IN MANCHESTER, NEW
HAMPSHIRE, WHERE HE SELLS VARIOUS BEADS, DRESSES, POSTERS, AND THE
LIKE.  IN JULY 1969 A 14 - YEAR-OLD GIRL, ACCOMPANIED BY HER GIRL
FRIEND, WENT TO THE SHOP SEEKING TO PURCHASE A BUTTON OR PIN LIKE THE
ONE PURCHASED BY HER FRIEND THE PREVIOUS WEEK.  SHE FOUND THE BUTTON,
INSCRIBED "COPULATION NOT MASTURBATION," AND PURCHASED IT FROM A SALES
PERSON IN THE STORE.  IT WAS CONCEDED IN THE NEW HAMPSHIRE COURTS THAT
APPELLANT WAS IN CONTROL OF THE PREMISES WHERE THE SALE WAS MADE.  AT A
JURY-WAIVED TRIAL, APPELLANT WAS CONVICTED OF CONTRIBUTING TO THE
DELIQUENCY OF A MINOR, A STATUTORY OFFENSE PROSCRIBED IN THESE WORDS: 

     "(ANYONE ... WHO SHALL KNOWINGLY OR WILLFULLY ENCOURAGE, AID,

  CAUSE, OR ABET, OR CONNIVE AT, OR HAS KNOWINGLY OR WILFULLY DONE

  ANY ACT TO PRODUCE, PROMOTE, OR CONTRIBUTE TO THE DELIQUENCY OF

  (A) CHILD, MAY BE PUNISHED...."  N.H. REV. STAT. ANN. 169:32

  (SUPP. 1972). 

THE SUPREME COURT OF NEW HAMPSHIRE AFFIRMED APPELLANT'S CONVICTION. 
113 N.H. 239, 306 A. 2D 781 (1973). 

THE COURT DECIDES THAT APPELLANT'S CONVICTION UNDER THIS STATUTE
VIOLATES RIGHTS SECURED TO HIM BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, CONCLUDING ON THE BASIS OF ITS "INDEPENDENT
EXAMINATION OF THE TRIAL RECORD"  THAT "EVIDENCE IS COMPLETELY LACKING
THAT APPELLANT PERSONALLY SOLD THE GIRL THE BUTTON OR EVEN THAT HE WAS
AWARE OF THE SALE OR PRESENT IN THE STORE AT THE TIME". 

        I 

IN ONE SENSE THERE CAN BE NO DOUBT THAT THE COURT'S CONCLUSION IS
BASED UPON AN "INDEPENDENT EXAMINATION OF THE TRIAL RECORD," SINCE THE
CLAIM SUSTAINED HERE WAS NEITHER MADE IN CONSTITUTIONAL FORM TO THE
SUPREME COURT OF NEW HAMPSHIRE, NOR EVEN PRESENTED BY APPELLANT IN HIS
JURISDICTIONAL STATEMENT IN THIS COURT.  /1/ 

A LITIGANT SEEKING TO PRESERVE A CONSTITUTIONAL CLAIM FOR REVIEW IN
THIS COURT MUST NOT ONLY MAKE CLEAR TO THE LOWER COURTS THE NATURE OF
HIS CLAIM, BUT HE MUST ALSO MAKE IT CLEAR THAT THE CLAIM IS
CONSTITUTIONALLY GROUNDED.  BAILEY V. ANDERSON, 326 U.S. 203 (1945). 
THE CLOSEST THAT APPELLANT CAME IN HIS BRIEF ON APPEAL TO THE SUPREME
COURT OF NEW HAMPSHIRE TO DISCUSSING THE ISSUE ON WHICH THIS COURT'S
OPINION TURNS IS IN THE SIXTH SECTION (AT 17 - 18), WHICH IS HEADED:
"THE STATE'S FAILURE TO INTRODUCE ANY EVIDENCE OF SCIENTER SHOULD HAVE
RESULTED IN DISMISSAL OF THE CHARGE FOLLOWING THE PRESENTATION OF THE
STATE'S CASE."  APPELLANT IN THAT SECTION MAKES THE CUSTOMARY APPELLATE
ARGUMENTS OF INSUFFICIENCY OF THE EVIDENCE AND DOES NOT SO MUCH AS
MENTION EITHER THE UNITED STATES CONSTITUTION OR A SINGLE CASE DECIDED
BY THIS COURT.  THE SUPREME COURT OF NEW HAMPSHIRE TREATED THESE
ARGUMENTS AS RAISING A CLASSIC STATE LAW CLAIM OF INSUFFICIENT EVIDENCE
OF SCIENTER; NOTHING IN THAT COURT'S OPINION REMOTELY SUGGESTS THAT IT
WAS TREATING THE CLAIM AS HAVING A BASIS OTHER THAN IN STATE LAW. 

THE COURT PURPORTS TO DECIDE THE SCIENTER QUESTION ON THE BASIS OF
RULE 40(1)(D)(2) OF THE RULES OF THIS COURT, WHICH PROVIDES: 

     "1.  BRIEFS OF AN APPELLANT OR PETITIONER ON THE MERITS SHALL

  BE PRINTED AS PRESCRIBED IN RULE 39, AND SHALL CONTAIN IN THE

  ORDER HERE INDICATED--

        .          .          .          . 

     "(D)(2) THE PHRASING OF THE QUESTIONS PRESENTED NEED NOT BE

IDENTICAL WITH THAT SET FORTH IN THE JURISDICTIONAL STATEMENT OR

  THE PETITION FOR CERTIORARI, BUT THE BRIEF MAY NOT RAISE

  ADDITIONAL QUESTIONS OR CHANGE THE SUBSTANCE OF THE QUESTIONS

  ALREADY PRESENTED IN THOSE DOCUMENTS.  QUESTIONS NOT PRESENTED

  ACCORDING TO THIS PARAGRAPH WILL BE DISREGARDED, SAVE AS THE

  COURT, AT ITS OPTION, MAY NOTICE A PLAIN ERROR NOT PRESENTED." 

THE VERY LANGUAGE OF THIS RULE MAKES IT CLEAR THAT IT APPLIES TO
THIS COURT'S REVIEW OF CASES IN WHICH IT HAS PREVIOUSLY EITHER NOTED
PROBABLE JURISDICTION OR GRANTED CERTIORARI.  THE CASES CITED BY THE
COURT IN SUPPORT OF WHAT IT DOES HERE ARE THEREFORE NECESSARILY CASES
IN WHICH REVIEW HAD BEEN GRANTED AND WHICH HAD BEEN ORALLY ARGUED; IN
ADDITION, EACH OF THOSE CASES AROSE IN THE FEDERAL COURTS.  SEE
COLUMBIA HIGHTS REALTY CO. V. RUDOLPH, 217 U.S. 547 (1910); SIBBACH V.
WILSON & CO., 312 U.S. 1 (1941); BLONDER-TONGUE LABORATORIES, INC. V.
UNIVERSITY OF ILLINOIS FOUNDATION, 402 U.S. 313 (1971). 

WHATEVER THE IMPORT OF RULE 40(1)(D)(2) IN CASES ARISING IN THE
FEDERAL COURTS, IT SURELY DOES NOT GIVE THIS COURT THE POWER TO SIMPLY
IGNORE THE LIMITATIONS PLACED BY 28 U.S.C. 1257 ON OUR JURISDICTION TO
REVIEW FINAL JUDGMENTS OF THE HIGHEST COURT OF A STATE.  THAT
JURISDICTION PERMITS REVIEW IN THIS COURT BY APPEAL WHERE A STATE
STATUTE HAS BEEN UPHELD AGAINST A FEDERAL CONSTITUTIONAL CHALLENGE, OR
BY WRIT OF CERTIORARI WHERE A FEDERAL CONSTITUTIONAL CHALLENGE IS
"SPECIFICALLY SET UP OR CLAIMED" IN STATE COURT.  OUR PRIOR CASES
ESTABLISH THAT WE WILL "NOT DECIDE FEDERAL CONSTITUTIONAL ISSUES RAISED
HERE FOR THE FIRST TIME ON REVIEW OF STATE COURT DECISIONS."  CARDINALE
V. LOUISIANA, 394 U.S. 437, 438 (1969).  SEE CROWELL V. RANDELL, 10
PET. 368 (1836).  SINCE THE SUPREME COURT OF NEW HAMPSHIRE WAS NOT
PRESENTED WITH A FEDERAL CONSTITUTIONAL CHALLENGE TO THE SUFFICIENCY OF
THE EVIDENCE, RESOLUTION OF THIS QUESTION BY THE COURT IS INCONSISTENT
WITH THE CONGRESSIONAL LIMITATION ON OUR JURISDICTION TO REVIEW THE
FINAL JUDGMENT OF THE HIGHEST COURT OF A STATE. 

        II 

EVEN IF APPELLANT'S SUFFICIENCY-OF-THE-EVIDENCE CONTENTION IN THE
SUPREME COURT OF NEW HAMPSHIRE COULD BE SAID TO HAVE BEEN PRESENTED AS
A FEDERAL CONSITITUTIONAL CLAIM BASED ON THOMPSON V. LOUISVILLE, 362
U.S. 199 (1960), I WOULD NONETHELESS BE UNABLE TO JOIN IN THE COURT'S
DISPOSITION OF IT.  IN THOMPSON, THE ONLY STATE COURT PROCEEDINGS
REACHING THE MERITS OF THE CASE WERE IN THE LOUISVILLE POLICE COURT
FROM WHICH THERE WAS NO RIGHT OF APPEAL TO ANY HIGHER STATE COURT, AND
THERE WAS THEREFORE NO STATE COURT OPINION WRITTEN WHICH CONSTRUED THE
STATUTE UNDER WHICH THOMPSON WAS CONVICTED.  THIS COURT THEREFORE HAD
NO CHOICE BUT TO ENGAGE IN ITS OWN CONSTRUCTION OF THE STATUTE AND UPON
DOING SO IT CONCLUDED THAT THE RECORD WAS "ENTIRELY LACKING IN EVIDENCE
TO SUPPORT ANY OF THE CHARGES."  ID., AT 204.  THOMPSON WAS OBVIOUSLY
AN EXTRAORDINARY CASE, AND UP UNTIL NOW HAS BEEN SAVED FOR
EXTRAORDINARY SITUATIONS; IT HAS NOT HERETOFORE BEEN BROADENED SO AS TO
MAKE LACK OF EVIDENTIARY SUPPORT FOR ONLY ONE OF SEVERAL ELEMENTS OF AN
OFFENSE A CONSTITUTIONAL INFIRMITY IN A STATE CONVICTION. 

HERE, HOWEVER, THE SUPREME COURT OF NEW HAMPSHIRE CONSTRUED THE
STATE STATUTE DEFINING CONTRIBUTING TO THE DELIQUENCY OF A MINOR, AND
HELD THAT THE EVIDENCE ADDUCED AT THE TRIAL WAS SUFFICIENT TO SUPPORT A
FINDING ON EACH ELEMENT OF THAT OFFENSE.  WHILE THE SUPREME COURT OF
NEW HAMPSHIRE DID SAY, AS THE COURT INDICATES, THAT THE STATE WAS
REQUIRED TO PROVE THAT THE ACCUSED ACTED "'VOLUNTARILY AND
INTENTIONALLY AND NOT BECAUSE OF MISTAKE OR ACCIDENT OR OTHER INNOCENT
REASON,'" 113 N.H., AT 242, 306 A. 2D, AT 784, IT SAID THIS IN A
CONTEXT OF SEVERAL PARAGRAPHS OF TREATMENT OF THE ELEMENTS OF THE
OFFENSE.  JUST AS THOSE READING AND RELYING UPON OUR OPINIONS WOULD BE
ILL-ADVISED TO SEIZE ONE PHRASE OUT OF CONTEXT, I THINK WE ARE ILL
ADVISED TO SO TREAT THE OPINION OF THE SUPREME COURT OF NEW HAMPSHIRE. 
THAT COURT HAD SEVERAL OBSERVATIONS TO MAKE ABOUT THE STATUTORY OFFENSE
WHICH BEAR ON THE ISSUE OF "WILFULNESS" UPON WHICH THIS COURT FOCUSES: 

     "IT IS UNCONTESTED THAT THE DEFENDANT WAS IN CONTROL OF THE

  PREMISES WHERE THE SALE WAS MADE.  THERE WAS EVIDENCE THAT A GIRL

  FRIEND OF THIS MINOR HAD PREVIOUSLY PURCHASED THERE A PIN 'LIKE

  THAT.'  THESE PINS WERE DISPLAYED ON A CARD ON A COUNTER.  THE

  TRIAL COURT SAW THE MINOR AND HAD AN OPPORTUNITY TO CONCLUDE

WHETHER HER MINORITY SHOULD HAVE BEEN APPARENT TO WHOEVER SOLD

  THE PIN.  THE COURT COULD FIND THAT THE DEFENDANT WAS AWARE OF

  THE CHARACTER OF THE PINS WHICH WERE BEING OFFERED FOR SALE AND

  SOLD IN HIS ESTABLISHMENT. 

      "DEFENDANT IS CHARGED WITH WILFULLY CONTRIBUTING TO THE

  DELIQUENCY OF A MINOR BY SELLING OR CAUSING TO BE SOLD TO HER THE

  BUTTON IN QUESTION.  TO ACT WILFULLY IS 'TO ACT VOLUNTARILY AND

  INTENTIONALLY AND NOT BECAUSE OF MISTAKE OR ACCIDENT OR OTHER

  INNOCENT REASON.'  (CITATIONS OMITTED.)  THE TRIAL COURT COULD

  PROPERLY FIND AND RULE THAT THE SALE OF THIS BUTTON TO THE MINOR

  WAS INTENTIONAL.  THE TRIAL COURT COULD FURTHER CONCLUDE THAT THE

  SELLER OF THIS TYPE OF BUTTON SHOULD HAVE REALIZED THAT IT WOULD

  TEND TO BE HARMFUL TO THE MORALS OF THE PURCHASER OR OTHERS. 

  R.S.A. 169:32 (SUPP. 1972).  THIS WOULD WARRANT A FINDING AND

  RULING THAT THE DEFENDANT WILFULLY CONTRIBUTED TO THE DELINQUENCY

  OF THIS MINOR AS CHARGED IN THE COMPLAINT.  (CITATIONS

  OMITTED.)"  ID., AT 242, 306 A. 2D, AT 784. 

THE COURT SIMPLY CASTS ASIDE THIS AUTHORITATIVE CONSTRUCTION OF NEW
HAMPSHIRE LAW, SEIZES ONE PHRASE OUT OF CONTEXT, AND CONCLUDES THAT
THERE WAS NO EVIDENCE TO ESTABLISH THAT THE APPELLANT "(KNEW) THE GIRL
TO BE A MINOR, PERSONALLY SOLD HER THE BUTTON, OR PERSONALLY CAUSED
ANOTHER TO SELL IT TO HER."  THE WORD "PERSONNALLY" IS THE CONTRIBUTION
OF THIS COURT TO THE NEW HAMPSHIRE STATUTE; IT IS NOT CONTAINED IN THE
STATUTE, AND IS NOT ONCE USED BY THE SUPREME COURT OF NEW HAMPSHIRE IN
ITS OPINION DEALING WITH THE FACTS OF THIS VERY CASE.  INDEED, THE
ENTIRE THRUST OF THE OPINION OF THE SUPREME COURT OF NEW HAMPSHIRE IS
THAT APPELLANT NEED NOT PERSONALLY HAVE SOLD THE BUTTON TO THE MONOR
NOR PERSONALLY HAVE AUTHORIZED ITS SALE TO A MINOR IN ORDER TO BE
GUILTY OF THE STATUTORY OFFENSE.  THE ONLY FAIR READING OF THE ABOVE
QUOTED LANGUAGE FROM THE SUPREME COURT OF NEW HAMPSHIRE IS THAT THE
WORD "WILFULLY"  IN THE STATUTE DOES NOT MEAN "PERSONALLY," AND THE
FACTS THAT THE APPELLANT CONTROLLED AND OPERATED THE SHOP, THAT THE
SAME TYPE OF PIN HAD BEEN PREVIOUSLY PURCHASED AT THE SHOP, AND THAT
THE PINS WERE PROMINENTLY OFFERED FOR SALE WERE SUFFICIENT EVIDENCE ON
THE ISSUE OF WILFULLNESS. 

THIS MAY SEEM TO US A SOMEWHAT BROAD CONSTRUCTION OF THE LANGUAGE
"WILFULLY" OR "KNOWINGLY," THOUGH OUR OWN CASES MAKE IT CLEAR THAT WE
ARE DEALING WITH WORDS WHICH MAY BE GIVEN A VARIETY OF MEANINGS BY
THEIR CONTEXT: 

     "THE DIFFERENCE BETWEEN WILLFUL FAILURE TO PAY A TAX WHEN DUE,

 WHICH IS MADE A MISDEMEANOR, AND WILLFUL ATTEMPT TO DEFEAT AND

  EVADE ONE, WHICH IS MADE A FELONY, IS NOT EASY TO DETECT OR

  DEFINE.  BOTH MUST BE WILLFUL, AND WILLFUL, AS WE HAVE SAID, IS A

  WORD OF MANY MEANINGS, ITS CONSTRUCTION OFTEN BEING INFLUENCED BY

  ITS CONTEXT.  UNITED STATES V. MURDOCK, 290 U.S. 389.  IT MAY

  WELL MEAN SOMETHING MORE AS APPLIED TO NONPAYMENT OF A TAX THAN

  WHEN APPLIED TO FAILURE TO MAKE A RETURN.  MERE VOLUNTARY AND

  PURPOSEFUL, AS DISTINGUISHED FROM ACCIDENTAL, OMISSION TO MAKE A

TIMELY RETURN MIGHT MEET THE TEST OF WILLFULNESS."  SPIES V.

  UNITED STATES, 317 U.S. 492, 497 - 498 (1943). 

BUT SINCE OUR AUTHORITY TO REVIEW STATE COURT CONVICTIONS IS LIMITED
TO THE VINDICATION OF CLAIMS OF FEDERAL RIGHTS, WE MUST TAKE THE
MEANING OF THE STATUTE, AND OF THE WORDS "WILFULLY" AND "KNOWINGLY"
WHICH IT USES, AS GIVEN TO US BY THE SUPREME COURT OF NEW HAMPSHIRE.  I
WOULD HAVE THOUGHT SUCH A PROPOSITION WELL SETTLED BY OUR PRIOR
DECISIONS: 

     "WE OF COURSE ARE BOUND BY A STATE'S INTERPRETATION OF ITS OWN

  STATUTE AND WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE

  STATE'S WHEN IT BECOMES NECESSARY TO ANALYZE THE EVIDENCE FOR THE

  PURPOSE OF DETERMINING WHETHER THAT EVIDENCE SUPPORTS THE

FINDINGS OF A STATE COURT."  GARNER V. LOUISIANA, 368 U.S. 157,

  166 (1961). 

WE DO HAVE CONSTITUTIONAL AUTHORITY IN APPROPRIATE CASES TO HOLD
THAT THE STATE'S CONSTRUCTION OF ITS STATUTE IS SUCH THAT THE STATUTORY
LANGUAGE DID NOT GIVE A CRIMINAL DEFENDANT FAIR WARNING OF THE CONDUCT
WHICH IS CONSTRUED TO BE EMBRACED WITHIN IT.  COLE V. ARKANSAS, 333
U.S. 196 (1948); BOUIE V. CITY OF COLUMBIA, 378 U.S. 347 (1964).  BUT
THIS IS A FAR CRY FROM OUR OWN REWRITING OF A STATE STATUTE IN ORDER TO
MAKE IT REQUIRE A HIGHLY SPECIFIC INTENT, AND THEN TURNING AROUND AND
SAYING THAT THERE WAS NO EVIDENCE BEFORE THE STATE COURTS TO PROVE THE
KIND OF INTENT WHICH WE HAVE SAID THE STATUTE REQUIRES.  I WOULD AT
LEAST NOTE PROBABLE JURISDICTION OVER THE APPEAL AND SET THE CASE FOR
ORAL ARGUMENT.  SINCE THE COURT INSTEAD CHOOSES, WITHOUT EVER HAVING
HEARD ARGUMENT, TO REWRITE THE NEW HAMPSHIRE STATUTE AND SUBSTITUTE ITS
INTERPRETATION FOR THAT OF THE SUPREME COURT OF NEW HAMPSHIRE, I
DISSENT. 

/1/  APPELLANT MAKES TWO CONTENTIONS IN HIS JURISDICTIONAL

STATEMENT: 

FIRST, THAT THE NEW HAMPSHIRE STATUTES DEFINING CONTRIBUTING TO THE
DELINQUENCY OF A MINOR AND SALE AND DELIVERY OF OBSCENE MATERIAL (N.H.
REV. STAT. ANN. 571 - A:1, 571 - A:2 (SUPP. 1972)) HAVE BEEN APPLIED TO
THE SALE OF THE BUTTON BY APPELLANT IN A WAY THAT INFRINGES UPON HIS
FIRST AND FOURTEENTH AMENDMENT RIGHTS; AND, SECOND, THAT THE NEW
HAMPSHIRE STATUTE DEFINING CONTRIBUTING TO THE DELINQUENCY OF A MINOR
IS UNCONSTITUTIONALLY VAGUE.  THERE IS SIMPLY NOTHING ELSE PRESENTED BY
THE JURISDICTIONAL STATEMENT. 
..END :





MARSHALL V. UNITED STATES, 414 U.S. 417 


       CERTIROARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 72 - 5881.  ARGUED OCTOBER 16 - 17, 1973--DECIDED

           JANUARY 9, 1974; 470 F.2D 34, AFFIRMED. 


    PETITIONER, WHO HAD THREE PRIOR FELONY CONVICTIONS, MOVED FOR

  COMMITMENT AS A NARCOTIC ADDICT PURSUANT TO TITLE II OF THE

  NARCOTIC ADDICT REHABILITATION ACT OF 1966 (NARA), FOLLOWING A

  FOURTH FELONY CONVICTION.  THE DISTRICT COURT HELD THAT THE

  NARA'S TWO-PRIOR-FELONY EXCLUSION PRECLUDED THE REQUESTED

  COMMITMENT, REJECTING PETITIONER'S POST-SENTENCE MOTION TO VACATE

  HIS SENTENCE ON THE GROUND THAT THE TWO-PRIOR-FELONY EXCLUSION

  VIOLATED EQUAL PROTECTION AS EMBODIED IN THE FIFTH AMENDMENT. 

  THE COURT OF APPEALS AFFIRMED.  HELD:  TITLE II OF NARA DOES NOT

DENY DUE PROCESS OR EQUAL PROTECTION BY EXCLUDING FROM

REHIBILITATIVE COMMITMENT, IN LIEU OF PENAL INCARCERATION,

 ADDICTS WITH TWO OR MORE PRIOR FELONY CONVICTIONS, SINCE CONGRESS

  COULD RATIONALLY ASSUME THAT AN ADDICT WITH A MULTIPLE-FELONY

  RECORD IS LIKELY TO BENEFIT LESS FROM REHABILITATIVE TREATMENT,

  PRESENT A POSSIBLE IMPEDIMENT TO THE SUCCESSFUL TREATMENT OF

  OTHERS, AND BE A GREATER THREAT TO SOCIETY UPON RELEASE, BECAUSE

  OF THAT RECORD.  PP. 422 - 430. 

     (A) IN ADOPTING THE TWO-FELONY EXCLUSION CONGRESS SOUGHT TO

  EXCLUDE FROM NARA TREATMENT (1) THOSE LESS LIKELY TO BE

  REHABILITATED THEREBY AND (2) THOSE WITH A "HISTORY OF SERIOUS

  CRIMES."  PP. 423 - 425. 

   (B) CONGRESS COULD REASONABLY ASSUME THAT BECAUSE OF THE NATURE

  OF ADDICTION TREATMENT THE MULTIPLE-FELONY OFFENDER WOULD LESS

  LIKELY BENEFIT FROM AND MIGHT INTERFERE WITH A REHABILITATION

  PROGRAM.  PP. 425, 428. 

     (C) CONGRESS SHOULD HAVE A WIDE LATITUDE IN FORMULATING AN

EXPERIMENTAL PROGRAM LIKE NARA, INVOLVING AS IT DOES MEDICAL AND

  SCIENTIFIC UNCERTAINTIES.  PP. 427 - 428. 

(D) IN EXCLUDING MULTIPLE OFFENDERS CONGRESS COULD SAFEGUARD

  THAT EXPERIMENTAL PROGRAM FROM POSSIBLE IMPROPER EXPLOITATION AND

  ALSO AVOID A POSSIBLE UNACCEPTABLE RISK TO SOCIETY REPRESENTED BY

  A REDUCED LEVEL OF DETERRENCE.  PP. 429 - 430. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  MARSHALL, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN, JJ., JOINED,
POST, P. 430. 

MR. JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO CONSIDER PETITIONER'S CLAIM THAT THE
PROVISIONS OF TITLE II OF THE NARCOTIC ADDICT REHABILITATION ACT OF
1966, 18 U.S.C. 4251 - 4255, DENY DUE PROCESS AND EQUAL PROTECTION BY
EXCLUDING FROM DISCRETIONARY REHABILITATIVE COMMITMENT, IN LIEU OF
PENAL INCARCERATION, ADDICTS WITH TWO OR MORE PRIOR FELONY
CONVICTIONS.  THE CIRCUITS ARE IN APPARENT CONFLICT ON THIS QUESTION. 
SEE THE OPINION OF THE COURT OF APPEALS IN THIS CASE, SUB NOM. MARSHALL
V. PARKER, 470 F.2D 34, AND WATSON V. UNITED STATES, 141 U.S. APP. D.
C. 335, 439 F.2D 442 (1970); UNITED STATES V. HAMILTON, 149 U.S. APP.
D. C. 295, 462 F.2D 1190 (1972); UNITED STATES V. BISHOP, 469 F.2D 1337
(CA1 1972); AND MACIAS V. UNITED STATES, 464 F.2D 1292 (CA5 1972),
CERT. PENDING, NO. 72 - 5539. 

        (1) 

PETITIONER, ROBERT EDWARD MARSHALL, PLEADED GUILTY TO AN INDICTMENT
CHARGING HIM WITH ENTERING A BANK WITH INTENT TO COMMIT A FELONY, IN
VIOLATION OF 18 U.S.C. 2113(A).  AT SENTENCING, PETITIONER REQUESTED
THAT HE BE CONSIDERED FOR TREATMENT AS A NARCOTIC ADDICT PURSUANT TO
TITLE II OF THE NARCOTIC ADDICT REHABILITATION ACT OF 1966 (NARA).  THE
SENTENCING JUDGE, AFTER NOTING PETITIONER'S THREE PRIOR FELONY
CONVICTIONS FOR BURGLARY, FORGERY, AND POSSESSION OF A FIREARM,
CONCLUDED THAT THE EXCLUSION OF PERSONS WITH TWO PRIOR CONVICTIONS FROM
THE DISCRETIONARY PROVISIONS OF THE ACT AS SET FORTH IN 18 U.S.C.
4251(F)(4) /1/  DID NOT PERMIT COMMITMENT UNDER NARA.  PETITIONER WAS
SENTENCED TO 10 YEARS' IMPRISONMENT PURSUANT TO 18 U.S.C. 4208(A)(2),
BUT THE DISTRICT JUDGE RECOMMENDED THAT PETITIONER RECEIVE TREATMENT
FOR NARCOTICS ADDICTION WHILE INCARCERATED.  /2/ 

TEN MONTHS AFTER BEING SENTENCED, PETITIONER MOVED TO VACATE HIS
SENTENCE UNDER 28 U.S.C. 2255 ON THE GROUND THAT THE TWO-PRIOR-FELONY
EXCLUSION OF NARA UNDER 4251(F)(4) VIOLATES EQUAL PROTECTION AS
EMBODIED IN THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

THE DISTRICT JUDGE TOOK NOTE OF WATSON V. UNITED STATES, SUPRA, BUT
DECLINED TO FOLLOW THAT HOLDING.  THE DISTRICT JUDGE ALSO NOTED THAT
THERE WAS NO SHOWING, AS IN WATSON, SUPRA, THAT PETITIONER'S PRIOR
CONVICTIONS AND HIS DRUG ADDICTION WERE RELATED /3/  AND SINCE HIS
PRIOR CONVICTIONS DID NOT RELATE TO TRAFFIC IN NARCOTICS, THE
PROVISIONS OF 18 U.S.C. 4251(F)(2) DID NOT APPLY.  THE DISTRICT JUDGE
DETERMINED THAT, GIVEN THE PURPOSES OF THE STATUTE, CONGRESS HAD NOT
ACTED ARBITRARILY IN PROVIDING DIFFERENT DISPOSITION STANDARDS FOR
CONVICTED PERSONS WITH RECORDS OF PRIOR FELONY CONVICTIONS FROM THOSE
WITHOUT SUCH CONVICTIONS, THESE CLASSIFICATIONS BEING RELATED TO
ELIGIBILITY FOR REHABILITATIVE COMMITMENT UNDER NARA. 

THE COURT OF APPEALS VIEWED PETITIONER'S 2255 PETITION AS A MOTION
UNDER RULE 35 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE FOR CORRECTION
OF AN ILLEGAL SENTENCE, AND HELD THE STATUTORY CLASSIFICATION
CONSTITUTIONALLY PERMISSIBLE, NOTING ITS DISAGREEMENT WITH THE
DECISIONS IN WATSON, SUPRA, AND UNITED STATES V. HAMILTON, SUPRA.
VIEWING THE ACT IN ITS ENTIRETY, /4/  THE COURT OF APPEALS CONCLUDED
THAT CONGRESS EXPRESSLY LIMITED THE REACH OF THE ACT TO ADDICTS MOST
LIKELY TO BE REHABILITATED THROUGH TREATMENT AND PROVIDED AN EXCLUSION
AS TO CONVICTED PERSONS HAVING TWO OR MORE PRIOR CONVICTIONS. 

CONCLUDING THERE IS NO "FUNDAMENTAL RIGHT" TO REHABILITATION FROM
NARCOTICS ADDICTION AT PUBLIC EXPENSE AFTER CONVICTION OF A CRIME, AND
THERE BEING NO "SUSPECT" CLASSIFICATION UNDER THE STATUTORY SCHEME, THE
COURT OF APPEALS CONSIDERED THE CORRECT STANDARD TO BE WHETHER THE
STATUTORY CLASSIFICATION BORE "SOME RELEVANCE TO THE PURPOSE FOR WHICH
THE CLASSIFICATION IS MADE."  BAXSTROM V. HEROLD, 383 U.S. 107, 111
(1966); DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970).  THE COURT REASONED
THAT CONGRESS ADOPTED THE CHALLENGED STANDARDS IN AN EFFORT TO RESTRICT
ELIGIBILITY TO THOSE MOST LIKELY TO RESPOND TO TREATMENT AND HELD THAT
CONGRESS COULD NOT BE SAID TO HAVE ACTED IRRATIONALLY IN SO DOING.  THE
DISTRICT COURT'S DENIAL OF PETITIONER'S MOTION TO VACATE HIS SENTENCE
WAS AFFIRMED, 470 F.2D 34 (CA9 1972).  WE GRANTED CERTIORARI, 410 U.S.
954 (1973).  WE AGREE WITH THE DISTRICT COURT'S AND THE COURT OF
APPEALS' READING OF THE STATUTE AND AFFIRM. 

        (2) 

PETITIONER CONCEDES THAT THE COMCEPT OF EQUAL PROTECTION AS EMBODIED
IN THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, SEE BOLLING V.
SHARPE, 347 U.S. 497 (1954), DOES NOT REQUIRE THAT ALL PERSONS BE DEALT
WITH IDENTICALLY, BUT RATHER THAT THERE BE SOME "RATIONAL BASIS" FOR
THE STATUTORY DISTINCTIONS MADE, MCGINNIS V. ROYSTER, 410 U.S. 263, 270
(1973), OR THAT THEY "HAVE SOME RELEVANCE TO THE PURPOSE FOR WHICH THE
CLASSIFICATION IS MADE."  BAXSTROM V. HEROLD, SUPRA, AT 111; RINALDI V.
YEAGER, 384 U.S. 305, 309 (1966).  SEE ALSO JAMES V. STRANGE, 407 U.S.
128 (1972); HUMPHREY V. CADY, 405 U.S. 504 (1972).  HE ARGUES THAT NO
SUCH NEXUS EXISTS UNDER THE CLASSIFICATION PROVIDED BY THE CHALLENGED
STATUTE. 

THE BROAD PURPOSE OF CONGRESS IN ENACTING NARA, AS SET FORTH IN THE
ACT ITSELF, WAS: 

     "(THAT CERTAIN PERSONS CHARGED WITH OR CONVICTED OF VIOLATING

  FEDERAL CRIMINAL LAWS, WHO ARE DETERMINED TO BE ADDICTED TO

  NARCOTIC DRUGS, AND LIKELY TO BE REHABILITATED THROUGH TREATMENT,

  SHOULD, IN LIEU OF PROSECUTION OR SENTENCING, BE CIVILLY

  COMMITTED FOR CONFINEMENT AND TREATMENT DESIGNED TO EFFECT THEIR

  RESTORATION TO HEALTH, AND RETURN TO SOCIETY AS USEFUL MEMBERS." 

42 U.S.C. 3401. 

SEE ALSO H. R. REP. NO. 1486, 89TH CONG., 2D SESS., 7 (1966), ("TO
PROVIDE FOR THE TREATMENT AND REHABILITATION OF NARCOTIC ADDICTS WHEN
THEY ARE CHARGED WITH OR CONVICTED OF OFFENSES AGAINST THE UNITED
STATES"); S. REP. NO. 1667, 89TH CONG., 2D SESS., 12 (1966).  CONGRESS
RECOGNIZED THAT SOME RELATIONSHIP BETWEEN DRUG ADDICTION AND CRIME
PROBABLY EXISTED, AND CONCLUDED THAT PROSECUTION AND IMPRISONMENT OF
ALL ADDICTS, WITHOUT MORE, WOULD NOT CURE ADDICTION OR RETARD THE
RISING ADDICTION RATE, AND THAT A REHABILITATIVE RATHER THAN A PURELY
PENAL APPROACH TO THE PROBLEM WAS CALLED FOR.  ID., AT 13, 17. 

IT WAS NOT THE PURPOSE OF CONGRESS, HOWEVER, TO MAKE EVERY ADDICT
ELIGIBLE FOR CIVIL COMMITMENT SIMPLY BY REASON OF ADDICTION.  THE
CONGRESSIONAL INTENT IN ADOPTING THE STATUTORY EXCLUSION BASED ON PRIOR
CONVICTIONS WHICH IS CHALLENGED HERE IN SOMEWHAT LESS EXPLICITLY
DEFINED,  /5/  BUT THE OBJECTIVES EMERGE CLEARLY WHEN THE ACT IS READ
AS A WHOLE.  HAVING RECOGNIZED SOME NEXUS BETWEEN DRUG ADDICTION AND
CRIME, CONGRESS SPECIFICALLY SOUGHT TO INSURE THAT ANY PROGRAM AIMED AT
PROVIDING FOR THE TREATMENT OF DRUG ADDICTION WOULD NOT HINDER
TRADITIONAL EFFORTS TO DEAL EFFECTIVELY WITH THE STRICTLY CRIMINAL
ASPECTS OF THE PROBLEM.  /6/  THE MOST EXPLICIT STATEMENT OF
CONGRESSIONAL INTENT IS FOUND IN THE HOUSE REPORT: 

     "THE PRACTICAL EFFECT OF THE IMPLEMENTATION OF THE LAW
PROVIDED

  FOR IN THE BILL, IS THAT STRICT PUNISHMEHT CAN BE METED OUT WHERE

REQUIRED TO THE HARDENED CRIMINAL, WHILE JUSTICE CAN BE TAMPERED

  WITH JUDGMENT AND FAIRNESS IN THOSE CASES WHERE IT IS TO THE BEST

  INTEREST OF SOCIETY AND THE INDIVIDUAL THAT SUCH A COURSE BE

  FOLLOWED." 

        .          .          .          . 

     "THE DEFINITION OF 'ELIGIBLE INDIVIDUAL' AS SET FORTH IN THE

  BILL INSURES THAT THE PERSONS CONSIDERED AS CANDIDATES FOR CIVIL

  COMMITMENT WILL NOT INCLUDE CRIMINALS CHARGED WITH VIOLENT CRIMES

  OR BE THOSE WHOSE RECORDS DISCLOSE A HISTORY OF SERIOUS CRIMES." 

  /7/  H. R. REP. NO. 1486, AT 9 - 10.  (EMPHASIS SUPPLIED.) 

SIMILARLY, THE SENATE REPORT NOTES THAT: 

     "THE BILL CONTAINS SUFFICIENT SAFEGUARDS TO ASSURE ADEQUATE

  PROTECTION OF THE GENERAL PUBLIC AGAINST THE ADDICT WHO IS OR MAY

  BE A HARDENED CRIMINAL, WHILE PROVIDING THE FLEXIBILITY NECESSARY

  TO ENABLE FEDERAL AUTHORITIES TO MEDICALLY TREAT THE ADDICT WHO

  IS CAPABLE OF BEING CURED AND REHABILITATED...."  S. REP. NO.

  1667, AT 13.  /8/ 

IT IS QUITE CLEAR THAT IN ADOPTING THE TWO-PRIOR-FELONY EXCLUSION,
CONGRESS SOUGHT FIRST, TO EXCLUDE FROM NARA TREATMENT THOSE LESS LIKELY
TO BE REHABILITATED BY SUCH TREATMENT, AND SECOND, TO EXCLUDE THOSE
WHOSE RECORDS DISCLOSED A "HISTORY OF SERIOUS CRIMES."  THE QUESTION WE
ARE CALLED UPON TO DECIDE IS WHETHER CONGRESS COULD RATIONALLY HAVE
ASSUMED THAT A PERSON WHO HAS COMMITTED TWO OR MORE PRIOR FELONIES AND
IS AN ADDICT AT THE TIME SENTENCE IS TO BE IMPOSED IS LIKELY TO BE LESS
SUSCEPTIBLE OF REHABILITATION BY REASON OF HIS PART RECORD, THUS POSING
A GREATER THREAT TO SOCIETY UPON RELEASE. 

CONGRESS' CONCERN WITH SUSCEPTIBILITY AND SUITABILITY OF MULTIPLE
OFFENDERS TO REHABILITATIVE TREATMENT CAN REASONABLY BE SAID TO DERIVE
FROM ITS BELIEF THAT BECAUSE OF THE NATURE OF ADDICTION TREATMENT, ONE
WHO HAD EVIDENCED GREATER DIFFICULTY IN CONFORMING HIS BEHAVIOR TO
SOCIETAL RULES AND LAWS WOULD HIMSELF BE LESS LIKELY TO BENEFIT FROM
TREATMENT.  ADDITIONALLY, SUCH A PERSON MIGHT ALSO POSE IMPEDIMENTS TO
THE SUCCESSFUL TREATMENT OF OTHERS IN THE PROGRAM.  AS TESTIMONY BEFORE
BOTH HOUSE AND SENATE COMMITTEES REVEALED, THE TREATMENT PROCESS FOR
NARCOTICS ADDICTION IS AN ARDUOUS AND A DELICATE UNDERTAKING,
PARTICULARLY IN THE AFTERCARE STAGE WHEN THE SUBJECT IS RELEASED INTO
AN UNSTRUCTURED ENVIRONMENT WHICH REQUIRES FROM THE ADDICT STRICT
OBEDIENCE TO THE LIMITATIONS OF THE PRESCRIBED REGIME AND FULL
COOPERATION IN THE REHABILITATIVE EFFORTS.  /9/ 

ADDITIONALLY, THERE IS NO GENERALLY ACCEPTED MEDICAL VIEW AS TO THE
EFFICACY OF PRESENTLY KNOWN THERAPEUTIC METHODS OF TREATING ADDICTS AND
THE PROSPECT FOR THE SUCCESSFUL REHABILITATION OF NARCOTICS ADDICTS
THUS REMAINS SHROUDED IN UNCERTAINTY.  INDEED, EVEN THE PREMISE THAT
DRUG ADDICTION IS ONE OF THE SIGNIFICANT ROOT CAUSES OF CRIME IS NOT
WITHOUT CHALLENGE.  SEE GENERALLY D. MUSTO, THE AMERICAN DISEASE:
ORIGINS OF NARCOTIC CONTROL (1973).  SEE ALSO AMERICAN BAR ASSOCIATION
AND AMERICAN MEDICAL ASSOCIATION, JOINT COMMITTEE ON NARCOTIC DRUGS,
DRUG ADDICTION:  CRIME OR DISEASE?  (1961).  AS TESTIMONY BEFORE THE
CONGRESS REVEALED, NO EVIDENCE TO DATE HAS DEMONSTRATED MORE THAN A
SPECULATIVE CHANCE FOR THE SUCCESSFUL REHABILITATION OF NARCOTICS
ADDICTS.  H. R. REP. NO. 1486 AT 51.  S. REP. NO. 1667, AT 14.  THE
NARA PROGRAM WAS THEREFORE FUNDAMENTALLY EXPERIMENTAL IN NATURE.  SEE
112 CONG. REC. 11896 - 11901 (1966).  THE SUGGESTION THAT THERE IS
"OBSCURITY" IN THE HOLDING OF THIS COURT IN POWELL V. TEXAS, 392 U.S.
514 (1968), FAILS TO TAKE INTO ACCOUNT THAT WHEN COURTS DEAL WITH
PROBLEMS IN THE ADMINISTRATION OF CRIMINAL LAW SUCH AS THOSE RELATED TO
DRUG ADDICTION, ALCHOLISM, MENTAL DISEASE, AND THE LIKE, THEY ARE
NECESSARILY CONFINED TO THE EXISTING LIMITS OF HUMAN KNOWLEDGE IN THOSE
AREAS.  AS MR. JUSTICE MARSHALL NOTED IN POWELL: 

 "(THE INESCAPABLE FACT IS THAT THERE IS NO AGREEMENT AMONG

  MEMBERS OF THE MEDICAL PROFESSION ABOUT WHAT IT MEANS TO SAY THAT

  'ALCHOLISM' IS A 'DISEASE.'  ONE OF THE PRINCIPAL WORKS IN THIS

  FIELD STATES THAT ... 'ALCHOLISM HAS TOO MANY DEFINITIONS AND

  DISEASE HAS PRACTICALLY NONE.'"  ID., AT 522. 

THE HOLDING IN POWELL WAS A CANDID ACKNOWLEDGMENT THAT THE MEDICAL
UNCERTAINTIES AFFORD LITTLE BASIS FOR JUDICIAL RESPONSES IN ABSOLUTE
TERMS. 

WHEN CONGRESS UNDERTAKES TO ACT IN AREAS FRAUGHT WITH MEDICAL AND
SCIENTIFIC UNCERTAINTIES, LEGISLATIVE OPTIONS MUST BE ESPECIALLY BROAD
AND COURTS SHOULD BE CAUTIOUS NOT TO REWRITE LEGISLATION, EVEN
ASSUMING, ARGUENDO, THAT JUDGES WITH MORE DIRECT EXPOSURE TO THE
PROBLEM MIGHT MAKE WISER CHOICES.  ACCORDINGLY, IT WOULD HAVE BEEN A
PERMISSIBLE CHOICE FOR CONGRESS TO PERMIT DISCRETIONARY INCLUSION IN
NARA PROGRAMS OF THOSE WHOSE PRIOR OFFENSES WERE DETERMINED TO BE
ADDICTION RELATED OR MOTIVATED.  SUCH A DISCRETION MIGHT APPROPRIATELY
HAVE BEEN VESTED IN THE TRIAL JUDGE MUCH IN THE MANNER IN WHICH HE IS
NOW REQUIRED TO EXERCISE HIS DISCRETION UNDER 4252 IN DETERMINING
WHETHER THE DEFENDANT IS AN ADDICT WHO IS LIKELY TO BE REHABILITATED
THROUGHT TREATMENT.  /10/  THAT CONGRESS HAS NOT YET CHOSEN TO SO
PROVIDE, HOWEVER, DOES NOT RENDER CONSTITUTIONALLY IMPERMISSIBLE ITS
DECISION TO LIMIT TREATMENT TO THOSE WITH LESS THAN TWO PRIOR FELONY
CONVICTIONS.  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483 (1955);
DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970); MCGOWAN V. MARYLAND, 366
U.S. 420 (1961); JEFFERSON V. HACKNEY, 406 U.S. 535 (1972). 

IT SHOULD BE RECOGNIZED THAT THE CLASSIFICATION SELECTED BY CONGRESS
IS NOT ONE WHICH IS DIRECTED "AGAINST" ANY INDIVIDUAL OR CATEGORY OF
PERSONS, BUT RATHER IT REPRESENTS A POLICY CHOICE IN AN EXPERIMENTAL
PROGRAM MADE BY THAT BRANCH OF GOVERNMENT VESTED WITH THE POWER TO MAKE
SUCH CHOICES.  THE COURT HAS FREQUENTLY NOTED THAT LEGISLATIVE
CLASSIFICATIONS NEED NOT BE PERFECT OR IDEAL.  THE LINE DRAWN BY
CONGRESS AT TWO FELONIES, FOR EXAMPLE, MIGHT, WITH AS MUCH SOUNDNESS,
HAVE BEEN DRAWN INSTEAD AT ONE, BUT THIS WAS FOR LEGISLATIVE, NOT
JUDICIAL CHOICE.  MCGINNIS V. ROYSTER, 410 U.S. 263 (1973); POWELL V.
TEXAS, SUPRA, AT 539 - 540 (BLACK, J., CONCURRING).  AGAINST THIS
BACKGROUND, IT CANNOT BE SAID THAT IT WAS UNREASONABLE OR IRRATIONAL
FOR CONGRESS TO ACT ON THE PREDICATE REFLECTED IN THE LEGISLATIVE
HISTORY AND EXPLICITLY STATED IN THE EXCLUSION PROVISION OF 4251(F)(4),
THAT A PERSON WITH TWO OR MORE PRIOR FELONIES WOULD BE LESS LIKELY TO
ADJUST AND ADHERE TO THE DISCIPLINES AND RIGORS OF THE TREATMENT
PROGRAM /11/  AND HENCE IS A LESS PROMISING PROSPECT FOR TREATMENT THAN
THOSE WITH LESSER CRIMINAL RECORDS.     IN ADDITION, CONGRESS MIGHT
RATIONALLY HAVE SOUGHT TO EXCLUDE FROM NARA TREATMENT CENTERS THOSE IT
THOUGHT MIGHT BE POTENTIALLY DISRUPTIVE ELEMENTS WITHIN THE SENSITIVE
ENVIRONMENT OF A DRUG TREATMENT PROGRAM.  /12/  NOR CAN CONGRESS BE
SAID TO HAVE ACTED WITHOUT REASON IN DETERMINING THAT AN ADDICT WITH
MULTIPLE CONVICTIONS WAS MORE "HARDENED" AND THUS A GREATER POTENTIAL
DANGER TO SOCIETY ON EARLY RELEASE THAN THE ADDICT WHO HAD COMMITTED
ONE PRIOR FELONY OR NONE. 

UNDER NARA, CONGRESS PROVIDED FOR COMPARATIVELY LENIENT SENTENCING
POSSIBILITIES, /13/ BUT IN EXCLUDING ADDICTS WITH TWO PRIOR FELONIES,
IT SOUGHT TO ASSURE THAT IN AN ESSENTIALLY EXPERIMENTAL PROGRAM TO
WHICH LIMITED RESOURCES WERE ALLOCATED THESE FEATURES WOULD NOT BE
EXPLOITED BY PERSONS WHO WERE VIEWED BY CONGRESS AS PRIMARILY
ANTISOCIAL AND ONLY SECONDARILY ADDICTS.  /14/  IN ADDITION, SINCE THE
FACT OF TWO PRIOR FELONY CONVICTIONS MAY BE SAID TO EVIDENCE A LESSER
SUSCEPTIBILITY OF DETERRENCE, THE REDUCED LEVEL OF DETERRENCE IMPLICIT
IN THE BENIGN POLICY OF TITLE II COULD REASONABLY BE THOUGHT BY
CONGRESS TO CREATE AN UNACCEPTABLE RISK TO SOCIETY AND THUS REQUIRE THE
EXCLUSION OF SUCH PERSONS FROM NARA DISPOSITION. 

WE THEREFORE HOLD THAT TITLE II NO NARA, 18 U.S.C. 4251 - 4255, DOES
NOR CONSTITUTE A DENIAL OF DUE PROCESS OR EQUAL PROTECTION BY EXCLUDING
FROM REHABILITATIVE COMMITMENT, IN LIEU OF PENAL INCARCERATION, ADDICTS
WITH TWO OR MORE PRIOR FELONY CONVICTIONS. 

              AFFIRMED. 

/1/  TITLE 18 U.S.C. 4253(A) PROVIDES IN RELEVANT PART THAT: 

"FOLLOWING THE EXAMINATION PROVIDED FOR IN SECTION 4252, IF THE
COURT DETERMINES THAT AN ELIGIBLE OFFENDER IS AN ADDICT AND IS LIKELY
TO BE REHABILITATED THROUGH TREATMENT, IT SHALL COMMIT HIM TO THE
CUSTODY OF THE ATTORNEY GENERAL FOR TREATMENT UNDER THIS CHAPTER..." 

TITLE 18 U.S.C. 4251(F) PROVIDES THAT: 

"(F) 'ELIGIBLE OFFENDER' MEANS ANY INDIVIDUAL WHO IS CONVICTED OF AN
OFFENSE AGAINST THE UNITED STATES, BUT DOES NOT INCLUDE-- 

"(1) AN OFFENDER WHO IS CONVICTED OF A CRIME OF VIOLENCE. 

"(2) AN OFFENDER WHO IS CONVICTED OF UNLAWFULLY IMPORTING OR SELLING
OR CONSPIRING TO IMPORT OR SELL A NARCOTIC DRUG, UNLESS THE COURT
DETERMINES THAT SUCH SALE WAS FOR THE PRIMARY PURPOSE OF ENABLING THE
OFFENDER TO OBTAIN A NARCOTIC DRUG WHICH HE REQUIRES FOR HIS PERSONAL
USE BECAUSE OF HIS ADDICTION TO SUCH DRUG. 

"(3) AN OFFENDER AGAINST WHOM THERE IS PENDING A PRIOR CHARGE OF A
FELONY WHICH HAS NOT BEEN FINALLY DETERMINED OR WHO IS ON PROBATION OR
WHOSE SENTENCE FOLLOWING CONVICTION ON SUCH A CHARGE, INCLUDING ANY
TIME ON PAROLE OR MANDATORY RELEASE, HAS NOT BEEN FULLY SERVED:
PROVIDED, THAT AN OFFENDER ON PROBATION, PAROLE, OR MANDATORY RELEASE
SHALL BE INCLUDED IF THE AUTHORITY AUTHORIZED TO REQUIRE HIS RETURN TO
CUSTODY CONSENTS TO HIS COMMITMENT. 

"(4) AN OFFENDER WHO HAS BEEN CONVICTED OF A FELONY ON TWO OR MORE
PRIOR OCCASIONS. 

"(5) AN OFFENDER WHO HAS BEEN COMMITTED UNDER TITLE I OF THE
NARCOTIC ADDICT REHABILITATION ACT OF 1966, UNDER THIS CHAPTER, UNDER
THE DISTRICT OF COLUMBIA CODE, OR UNDER ANY STATE PROCEEDING BECAUSE OF
NARCOTIC ADDICTION ON THREE OR MORE OCCASIONS." 

TITLE 18 U.S.C. 4251(D) DEFINES "FELONY" FOR PURPOSES OF THE ACT TO
INCLUDE "ANY OFFENSE IN VIOLATION OF A LAW OF THE UNITED STATES
CLASSIFIED AS A FELONY UNDER SECTION 1 OF TITLE 18 OF THE U.S.C.  AND
FURTHER INCLUDES ANY OFFENSE IN VIOLATION OF A LAW OF ANY STATE, ANY
POSSESSION OR TERRITORY OF THE UNITED STATES, THE DISTRICT OF COLUMBIA,
THE CANAL ZONE, OR THE COMMONWEALTH OF PUERTO RICO, WHICH AT THE TIME
OF THE OFFENSE WAS CLASSIFIED AS A FELONY BY THE LAW OF THE PLACE WHERE
THAT OFFENSE WAS COMMITTED." 

/2/  PRISONERS NOT ELIGIBLE FOR TREATMENT UNDER NARA MAY RECEIVE THE
BENEFIT OF PROGRAMS COMPARABLE TO THOSE PROVIDED UNDER NARA, AVAILABLE
TO NARCOTICS ADDICTS UNDER ADMINISTRATIVE PROCESSES OF THE FEDERAL
BUREAU OF PRISONS.  SEE GENERALLY DRUG ABUSE PROGRAMS MANUAL, BUREAU OF
PRISONS POLICY STATEMENT NO. 8500.1 (APR. 20, 1973). 

/3/  BECAUSE THE TWO-PRIOR-FELONY CONVICTIONS IN WATSON WERE FOR
VIOLATIONS OF NARCOTICS LAWS, THERE WAS SOME CONJECTURE THAT THE
RATIONALE OF THAT CASE WAS LIMITED TO ITS FACTS.  IN UNITED STATES V.
HAMILTON, 149 U.S. APP. D. C. 295, 462 F.2D 1190 (1972), THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, THE SAME COURT WHICH
DECIDED WATSON, DISPELLED ALL DOUBT BY HOLDING THE TWO-PRIOR-FELONY
EXCLUSION TO BE UNCONSTITUTIONAL WHERE THE DEFENDANT HAS BEEN CONVICTED
OF ONE PRIOR NARCOTICS LAW FELONY AND FOUR PRIOR NON-NARCOTICS FELONY
OFFENSES.  SUBSEQUENTLY, IN UNITED STATES V. BISHOP, 469 F.2D 1337
(1972), THE COURT OF APPEALS FOR THE FIRST CIRCUIT ALSO HELD THE
EXCLUSION OF 4251(F)(4) TO BE UNCONSTITUTIONAL WHERE THE PRIOR FELONIES
WERE NON-NARCOTICS VIOLATIONS. 

/4/  IN 1966, CONGRESS ENACTED THE NARCOTIC ADDICT REHABILITATION
ACT, PUB. L. 89 - 793, 80 STAT. 1438.  TITLE I OF THE ACT, 28 U.S.C.
2901 - 2906, PROVIDES FOR CIVIL REHABILITATIVE COMMITMENT PRIOR TO
TRIAL OF PERSONS CHARGED WITH FEDERAL CRIMES, AND DISMISSAL OF THE
CHARGES UPON SUCCESSFUL COMPLETION OF THE TREATMENT.  TITLE II, 18
U.S.C. 4251 - 4255, PRIVIDES FOR SIMILAR COMMITMENT IN LIEU OF
IMPRISONMENT FOR THOSE CONVICTED OF A FEDERAL CRIME.  TITLE III, 42
U.S.C. 3411 - 3426, PROVIDES FOR CIVIL COMMITMENT OF PERSONS NOT
INVOLVED IN THE CRIMINAL PROCESS.  IN EACH CASE, THE COURT MUST, AFTER
ORDERING COMMITMENT FOR EXAMINATION, DETERMINE WHETHER THE INDIVIDUAL
IS AN ADDICT, AS DEFINED BY THE STATUTE, 28 U.S.C. 2901(A), 18 U.S.C.
4251(A), 42 U.S.C. 3411(A), AND WHETHER HE "IS LIKELY TO BE
REHABILITATED THROUGH TREATMENT," 28 U.S.C. 2902(B), 18 U.S.C. 4253(A),
42 U.S.C. 3415. 

/5/  THE ACT WAS BASED ON THE HOUSE-PASSED ADMINISTRATION BILL, H.
R. 9167.  THE TWO-FELONY EXCLUSION IS DERIVED FROM THAT BILL, WHICH
CONTAINED ALL FIVE OF THE FINAL EXCLUSIONS IN SOME FORM.  ALL OF THE
OTHER HOUSE BILLS CONSIDERED BY THE HOUSE COMMITTEE, BUT ONE, ALSO HAD
A TWO-FELONY EXCLUSION.  SEE CIVIL COMMITMENT AND TREATMENT OF NARCOTIC
ADDICTS, HEARINGS ON H. R. 9051, 9159, 9167 AND RELATED BILLS BEFORE
SUBCOMMITTEE NO. 2 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 89TH CONG.,
1ST AND 2D SESS., SER.  10, PP. 1 - 14, 17, 20 - 53 (1965 AND 1966). 
THE SENATE BILL, S. 2191, DID NOT, HOWEVER, CONTAIN THE TWO-FELONY
EXCLUSION, SEE S. REP. NO. 1667, 89TH CONG., 2D SESS., 7 - 8 (1966). 
IN CONFERENCE, WHERE TITLES I AND II OF THE HOUSE BILL WERE ADOPTED,
THE TWO-FELONY EXCLUSION WAS INCORPORATED INTO THE FINAL BILL.  SEE H.
R. CONF. REP. NO. 2316, 89TH CONG., 2D SESS., 2 - 3, 6 (1966); 112
CONG. REC. 27616 (1966). 

/6/  "AFTER CAREFULLY CONSIDERING THE PROPOSED LEGISLATION, AS
AMENDED, THE COMMITTEE FINDS THAT IT OFFERS A FLEXIBLE AND LOGICAL
MEANS TO PROVIDE FOR THE TREATMENT OF DRUG ADDICTS WHO ARE LIKELY
CANDIDATES FOR REHABILITATION WITHOUT ESSENTIALLY CHANGING THE
AUTHORITY OF LAW ENFORECMENT OFFICIALS AND THE COURTS TO ENFORCE FULL
CRIMINAL ACTIONS IN APPROPRIATE CASES."  S. REP. NO. 1667, P. 37. 
(EMPHASIS SUPPLIED.) 

/7/  THOUGH ACTUALLY DISCUSSING THE DEFINITION OF "ELIGIBLE
INDIVIDUALS"  CONTAINED IN TITLE I, CONCERNING CIVIL COMMITMENT PRIOR
TO TRIAL, THE IDENTICAL DEFINITIONS ARE CONTAINED IN TITLE II, AND THE
HOUSE REPORT INDICATES THAT THERE IS NO DIFFERENCE BETWEEN THE
RATIONALE OR THE LANGUAGE OF THE VARIOUS PROVISIONS.  SEE H. R. REP.
NO. 1486, 89TH CONG., 2D SESS., 12, 20 (1966). 

/8/  PRIOR TO INCLUSION OF THE TWO-PRIOR-FELONY EXCLUSION, THE
SENATE REPORT DESCRIBED THE PURPOSES OF THE RESTRICTIONS ON ELIGIBILITY
BY STATING: 

"THE NET EFFECT IS TO CONFINE ELIGIBILITY FOR THE BENEFITS OF THE
LEGISLATION TO ADDICTS ACCUSED OF NONVIOLENT CRIMES WHO SHOW GOOD
PROSPECTS FOR REHABILITATION, WHILE RETAINING STRICT CRIMINAL
PUNISHMENT FOR DANGEROUS OR HARDENED OFFENDERS, NARCOTICTS PUSHERS, AND
PERSONS WITH A HISTORY OF FAILURE TO RESPOND TO TREATMENT."  S. REP.
NO. 1667, P. 17. 

THE BILL WHICH EMERGED FROM CONFERENCE INCLUDED THE TWO-PRIOR-FELONY
EXCLUSION, AND THE REPORT ON THT BILL MERELY NOTED THAT "THE CONFEREES
FOR THE SENATE FELT IT REASONABLE TO EXCLUDE HARDENED OFFENDERS WITH
SERIOUS CRIMINAL RECORDS AND PERSONS WHO HAVE DEMONSTRATED THEIR
UNSUITABILITY FOR CIVIL TREATMENT."  112 CONG. REC. 27616 (1966). 

/9/  THE SENATE REPORT STATES: 

"THE PROCESS IS EXTREMELY COMPLEX AND DIFFICULT, INVOLVING SUSTAINED
THERAPY, PRINCIPALLY PSYCHIATRIC, AND PERHAPS A RETURN TO THE COMMUNITY
IN STAGES, UTILIZING SHORT VISITS, A HALFWAY HOUSE, A WORK CAMP OR SOME
SIMILAR FACILITY....  IN ADDITION, SOME SANCTION SHOULD BE AVAILABLE TO
ENFORCE THE COOPERATION OF THE ADDICT IN THE POST-HOSPITALIZATION
PERIOD.  S. REP. NO. 1667, P. 15. 

/10/  SOME CRITICISM HAS BEEN DIRECTED AT THE CAUTIOUS USE OF THE
NARA PROGRAM.  SEE REPORT BY THE COMPTROLLER GENERAL OF THE UNITED
STATES TO THE CONGRESS, LIMITED USE OF FEDERAL PROGRAMS TO COMMIT
NARCOTIC ADDICTS FOR TREATMENT AND REHABILITATION (1971). 

/11/  SIMILARLY RATIONAL WAS THE RELATED CONGRESSIONAL CHOICE TO
GIVE PRIORITY OF TREATMENT TO CONVICTED ADDICTS AT AN EARLY STAGE IN
THEIR LIVES.  ALTHOUGH NOT INVARIABLY SO, THOSE WITH NO FELONY RECORD
MAY WELL BE YOUNGER, AS A GROUP, THAN THOSE WITH MULTIPLE CONVICTIONS,
AND THIS NOTWITHSTANDING THAT THE MEDIAN AGE OF SERIOUS OFFENDERS HAS
SHOWN A STEADY DOWNWARD TREND. 

/12/  VIRTUALLY ALL DRUG TREATMENT PROGRAMS INCLUDE GROUP THERAPY
AND INVOLVE EXTENSIVE PERSONAL INTERACTION BETWEEN THOSE IN THE
TREATMENT PROGRAM.  IN ADDITION, THERE ARE STRICT INSTITUTIONAL RULES
REGARDING VIRTUALLY EVERY ASPECT OF THE ADDICT'S DAILY EXISTENCE WHICH
HE IS EXPECTED TO FOLLOW, AND THE EXISTENCE OF SUCH AUTHORITY IS
CONSIDERED VITAL TO SUCCESSFUL TREATMENT, BOTH IN THE PROGRAM ITSELF,
AND PARTICULARLY DURING THE AFTERCARE PERIOD.  SEE COLE, REPORT ON THE
TREATMENT OF DRUG ADDICTION, TASK FORCE REPORT:  NARCOTICS AND DRUG
ABUSE, THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION
OF JUSTICE 135 - 147 (1967); PETERSEN, YARVIS & FARKAS, THE FEDERAL
BUREAU OF PRISONS TREATMENT PROGRAM FOR NARCOTICS ADDICTS (1969);
FEDERAL DRUG ABUSE PROGRAMS, A REPORT PREPARED BY THE TASK FORCE ON
FEDERAL HERION ADDICTION PROGRAMS AND SUBMITTED TO THE CRIMINAL LAW
278, 393 - 416 (1972), VAILLANT & RASOR, THE ROLE OF COMPULSORY
SUPERVISION IN THE TREATMENT OF ADDICTION, 30 FED. PROB.  53 - 59 (JUNE
1966). 

/13/ UNDER 18 U.S.C. 4253, AN INDIVIDUAL WHO IS DETERMINED TO BE
ELIGIBLE FOR NARA TREATMENT IS TO BE COMMITTED TO THE COSTODY OF THE
ATTORNEY GENERAL FOR TREATMENT FOR "AN INDETERMINATE PERIOD OF TIME NOT
TO EXCEED TEN YEARS, BUT IN NO EVENT SHALL IT EXCEED THE MAXIMUM
SENTENCE THAT COULD OTHERWISE HAVE BEEN IMPOSED."  18 U.S.C. 4254 THEN
ALLOWS FOR CONDITIONAL RELEASE OF AN OFFENDER, UPON THE REQUISITE
DETERMINATION, ANY TIME AFTER THE OFFENDER HAS RECEIVED SIX MONTHS'
TREATMENT.  THEREAFTER, HE IS LEGALLY ON PAROLE UNDER THE JURISDICTION
OF THE BOARD OF PAROLE, 18 U.S.C. 4255. 

/14/  SEE 112 CONG. REC. 11813 (1966). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BREANNAN CONCUR, DISSENTING. 

TITLE II OF THE NARCOTIC ADDICT REHABILITATION ACT OF 1966
AUTHORIZES TREATMENT IN LIEU OF PRISON SENTENCE FOR THOSE ADDICTS
CONVICTED OF AN OFFENSE AGAINST THE UNITED STATES WHO THE SENTENCING
COURT HAS DETERMINED ARE "LIKELY TO BE REHABILITATED THROUGH
TREATMENT."  18 U.S.C. 4253(A).  PETITIONER WAS DENIED TREATMENT FOR
HIS DISEASE OF NARCOTICS ADDICTION, EVEN THOUGH NO DETERMINATION WAS
EVER MADE THAT HE IS NOT LIKELY TO BE REHABILITATED THROUGH TREATMENT,
BECAUSE THE ACT EXCLUDES FROM CONSIDERATION FOR THE NARA PROGRAM ANY
PERSON WITH TWO OR MORE PRIOR FELONY CONVICTIONS.  18 U.S.C.
4251(F)(4).  TWO COURTS OF APPEALS HAVE CONCLUDED THAT THE TWO-FELONY
EXCLUSION, THOUGH INTENDED BY CONGRESS TO SERVE ADMITTEDLY LEGITIMATE
ENDS, IS NOT A SUFFICIENTLY RATIONAL MEANS TOWARD THOSE ENDS TO
WITHSTAND SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE.  /1/  THE COURT
TODAY, WHILE ALLUDING TO SOME OF THE STATUTES SERIOUS FLAWS,
NEVERTHELESS FINDS IT CONSTITUTIONAL.  I MUST RESPECTFULLY DISSENT. 

IN THE PRESENT CASE THE COURT OF APPEALS ANALYZED THE
CONSTITUTIONALITY OF THE TWO-FELONY EXCLUSION BY FOCUSING ON WHAT IT
PERCEIVED TO BE THIS COURT'S TWO-TIERED APPROACH TO EQUAL PROTECTION
ISSUES.  SEE 470 F.2D 34, 38 (1972).  UNDER THIS VIEW, CLASSIFICATIONS
INVOLVING A "FUNDAMENTAL INTEREST"  OR "SUSPECT CLASSIFICATION" ARE
SUBJECT TO SO-CALLED "STRICT SCRUTINY,"  WHILE ALL OTHER STATUTES ARE
TESTED BY A STANDARD OF MINIMAL RATIONALITY.  WHILE THE COURT TODAY
NEITHER EXPRESSLY ENDORSES NOR REJECTS THIS APPROACH, ITS ANALYSIS IS
SO DEFERENTIAL AS TO CONFIRM AS EARLIER OBSERVATION THAT, EXCEPT IN
CASES WHERE THE COURT CHOOSES TO INVOKE STRICT SCRUTINY, THE EQUAL
PROTECTION CLAUSE HAS BEEN ALL BUT EMASCULATED.  SEE SAN ANTONIO SCHOOL
DIST. V. RODRIQUEZ, 411 U.S. 1, 98 (MARSHALL, J., DISSENTING).  /2/ 

AT THE OUTSET, THEN, I MUST ONCE AGAIN TAKE ISSUE WITH THE COURT'S
APPARENTLY RIGID APPROACH TO EQUAL PROTECTION ISSUES.  SEE, E.G.,
DANDRIDGE V. WILLIAMS, 397 U.S. 471, 519 - 530 (1970) (MARSHALL J.,
DISSENTING); RICHARDSON V. BELCHER, 404 U.S. 78, 90 - 91 (1971)
(MARSHALL, J., DISSENTING); SAN ANTONIO SCHOOL DIST. V. RODRIQUEZ,
SUPRA, AT 98 - 110 (MARSHALL, J., DISSENTING).  TRUE, AS THE COURT OF
APPEALS FOUND, THIS CASE DOES NOT FIT INTO ANY NEAT "FUNDAMENTAL
INTEREST" OR "SUSPECT CLASSIFICATION"  MOLD.  NOTWITHSTANDING, I FIND
IT HARD TO UNDERSTAND WHY A STATUTE WHICH SENDS A MAN TO PRISON AND
DEPRIVES HIM OF THE OPPORTUNITY EVEN TO BE CONSIDERED FOR TREATMENT FOR
HIS DISEASE OF NARCOTICS ADDICTION, /3/  WHILE PROVIDING TREATMENT AND
SUSPENSION OF PRISON SENTENCE TO OTHERS SIMILARLY SITUATED, SHOULD BE
TESTED UNDER THE SAME MINIMAL STANDARDS OF RATIONALITY THAT WE APPLY TO
STATUTES REGULATING WHO CAN SELL EYEGLASSES OR WHO CAN OWN PARMACIES. 
SEE WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483 (1955); NORTH DAKOTA
STATE BD. OF PHARMACY V. SNYDER'S DRUG STORES, INC., ANTE, P. 156. 
THIS CASE DOES NOT INVOLVE DISCRIMINATION AGAINST BUSINESS INTERESTS
MORE THAN POWERFUL ENOUGH TO PROTECT THEMSELVES IN THE LEGISLATIVE
HALLS, BUT THE VERY LIFE AND HEALTH OF A MAN CAUGHT UP IN THE SPIRALING
WEB OF ADDICTION AND CRIME. 

I PRESS MY DISAGREEMENT NO FURTHER HERE, FOR A CAREFUL ANALYSIS OF
THE TWO-FELONY EXCLUSION AND THE ENDS CONGRESS SOUGHT TO ACHIEVE SHOWS
THAT THE EXCLUSION IS A TOTALLY IRRATIONAL MEANS TOWARD THOSE ENDS.  IF
DEFERENTIAL SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE IS TO MEAN MORE
THAN TOTAL DEFERENCE AND NO SCRUTINY, SURELY IT MUST REACH THE
STATUTORY EXCLUSION INVOLVED IN THIS CASE. 

ONE OF CONGRESS' PRIMARY PURPOSES IN ENACTING THE TWO-FELONY
EXCLUSION WAS TO LIMIT TREATMENT TO THOSE CONVICTED PERSONS CONSIDERED
MOST DESERVING OF THE SPECIAL BENEFITS PROVIDED BY THE NEW LAW.  AS THE
GOVERNMENT ARGUES IN ITS BRIEF, CONGRESS WANTED TO GRANT THE BENEFITS
OF TREATMENT TO THOSE WHO "WERE PRIMARILY ADDICTS,AND ONLY SECONDARILY
CRIMINALS."  BRIEF FOR UNITED STATES 6.  TO STATE THE GOAL MORE
PRECISELY, CONGRESS INTENDED TO GIVE TREATMENT TO THOSE ADDICTS WHOSE
CRIMINAL ACTIVITY WAS ONLY A SYMPTON OR PRODUCT OF THEIR ADDICTION. 
THE HOUSE REPORT RECOGNIZED THAT "NARCOTIC ADDICTS IN THEIR DESPERATION
TO OBTAIN DRUGS OFTEN TURN TO CRIME IN ORDER TO OBTAIN MONEY TO FEED
THEIR ADDICTION."  H. R. REP. NO. 1486, 89TH CONG., 2D SESS., 8
(1966).  ON THE OTHER HAND, CONGRESS KNEW THERE WERE OTHERS WHO WERE
FIRST OF ALL CRIMINALS, AND ONLY SECONDARILY ADDICTS--THAT IS, PERSONS
WHOSE CRIMINAL ACTIVITY WAS INDEPENDENT OF THEIR NARCOTICS ADDICTION. 
IT WAS THOUGHT IMPORTANT TO PRESERVE STRICT CRIMINAL PENALTIES FOR SUCH
HARDENED CRIMINALS, RATHER THAN PERMIT THEM TO USE THE FACT OF THEIR
ADDICTION TO ESCAPE PUNISHMENT FOR A CRIME.  SEE 112 CONG. REC. 11813
(1966). 

THE PLAIN FACT OF THE MATTER, HOWEVER, IS THAT THE TWO-FELONY
EXCLUSION DOES NOT FURTHER THIS LEGISLATIVE END, AS THE FOLLOWING
EXAMPLES DEMONSTRATE.  DEFENDANT A, WITH A PRIOR FELONY CONVICTION FOR
ASSULT WITH INTENT TO COMMIT MURDER, IS CONVICTED OF STEALING FUNDS
FROM A NATIONAL BANK.  NEITHER CRIME WAS IN ANY WAY RELATED TO
NARCOTICS ADDICTION.  IN FACT, A WAS NOT EVEN AN ADDICT AT THE TIME HE
COMMITTED THE CRIMES, BUT HAS BECOME AN ADDICT DURING THE PENDENCY OF
HIS BANK THEFT TRIAL.  DEFENDANT B, WHO HAS TWO PRIOR FELONY
CONVICTIONS FOR NARCOTICS OFFENSES, IS CONVICTED OF POSSESSION OF
HEROIN FOR HIS OWN USE.  GIVEN THE ABOVE-STATED LEGISLATIVE PURPOSE,
ONE WOULD THINK THAT DEFENDANT B, ALL OF WHOSE CRIMINAL ACTIVITY WAS
RELATED TO HIS NARCOTICS ADDICTION, WOULD BE ELIGIBLE FOR NARA
TREATMENT, WHILE DEFENDANT A, NONE OF WHOSE CRIMINAL ACTIVITY WAS SO
RELATED, WOULD NOT BE ELIGIBLE.  BUT JUST THE OPPOSITE IS TRUE, BECAUSE
OF THE TWO-FELONY EXCLUSION.  /4/ 

THE PROBLEM WITH THE STATUTE IS NOT, AS THE MAJORITY WOULD HAVE IT,
THAT CONGRESS CHOSE TWO FELONIES AS THE CUTOFF POINT RATHER THAN ONE OR
THREE.  RATHER, THE STATUTE FAILS TO ACHIEVE THE LEGISLATIVE END OF
DISCRIMINATING BETWEEN PEOPLE WHO ARE MAINLY ADDICTS AND THOSE WHO ARE
MAINLY CRIMINALS BECAUSE A NUMERICAL TEST WAS USED TO ACHIEVE A
QUALITATIVE RESULT FOR WHICH IT WAS TOTALLY UNSUITED. 

A SECOND BASIC PURPOSE SOUGHT TO BE ACHIEVED THROUGH THE TWO-FELONY
EXCLUSION WAS TO RESTRICT NARA TREATMENT TO THOSE PERSONS DEEMED LIKELY
TO BE REHABILITATED.  BUT THE TWO- FELONY RULE, AGAIN, IS NOT A
RATIONAL MEANS TOWARD THAT END.  TO BEGIN WITH, IT MUST BE REMEMBERED
THAT THE STATUTE ITSELF LIMITS PARTICIPATION IN THE PROGRAM TO THOSE
PERSONS WHO, AFTER AN EXAMINATION IN THE CUSTODY OF THE ATTORNEY
GENERAL, ARE DETERMINED TO BE ADDICTS "LIKELY TO BE REHABILITATED
THROUGH TREATMENT."  THE TWO-FELONY EXCLUSION, TO THE EXTENT IT IS
JUSTIFIED BY REFERENCE TO THIS POLICY, AMOUNTS TO A CONCLUSIVE AND
IRREBUTTABLE PRESUMPTION THAT A PERSON WITH TWO OR MORE FELONY
CONVICTIONS IS NOT LIKELY TO BE REHABILITATED THROUGH TREATMENT.  WE
HAVE ONLY RECENTLY REITERATED THAT "PERMANENT IRREBUTTABLE PRESUMPTIONS
HAVE LONG BEEN DISFAVORED, "  SEE VLANDIS V. KLINE, 412 U.S. 441, 446
(1973).  THIS IS PARTICULARLY TRUE WHERE AN INTEREST AS IMPORTANT AS
PERSONAL LIBERTY IS AT STAKE.  AND AS ONE WOULD EXPECT OF MEDICAL
PROBLEMS IN GENERAL, WHETHER A PARTICULAR INDIVIDUAL'S DISEASE OF
NARCOTICS ADDICTION IS AMENABLE TO TREATMENT IS THE VERY KIND OF
QUESTION WHICH REQUIRES AN INDIVIDUALIZED DETERMINATION.  /5/ 

THE TWO-FELONY PRESUMPTION OF NONAMENABILITY TO REHABILITATION IS
ALSO PLAINLY CONTRARY TO FACT.  THE ADMINISTRATOR OF THE CALIFORNIA
YOUTH AND ADULT CORRECTIONS AGENCY POINTED OUT THAT THE TWO-OR-MORE
FELONY PROVISIONS "WOULD RESULT IN A GREAT MANY PERSONS BEING EXCLUDED
WHO MIGHT PROVE TO BE THE BEST SUBJECTS FOR THE PROGRAM."  /6/  AS HE
INDICATED, IT WAS THE EXPERIENCE OF THE CALIFORNIA PROGRAM, /7/  UPON
WHICH THE FEDERAL PROGRAM WAS MODELED IN LARGE PART, THAT "PERSONS WHO
HAVE HAD AS MANY AS FOUR OR FIVE PERVIOUS CONVICTIONS AND HAVE GROWN
OLDER IN YEARS RESPOND TO THE PROGRAM BETTER THAN SOME OF THE YOUNGER
PERSONS EARLIER IN THEIR CAREERS."  /8/  NOR WAS ANY CONTRARY EVIDENCE
PRESENTED TO CONGRESS. 

ANOTHER PURPOSE OF THE TWO-FELONY EXCLUSION WAS TO WEED OUT THOSE
VIOLENT, ANTISOCIAL INDIVIDUALS WHOSE PARTICIPATION IN THE PROGRAM
WOULD INTERFERE WITH THE REHABILITATION OF OTHERS.  BUT AGAIN, CONGRESS
HAS DRAWN A NUMERICAL TEST TO ACHIEVE A QUALITATIVE RESULT FOR WHICH IT
IS MANIFESTLY UNSUITED.  AN ADDICT WITH A PRIOR CONVICTION FOR
ATTEMPTED MURDER CAN PARTICIPATE IN THE NARA PROGRAM, WHILE ONE WHOSE
PRIOR RECORD INCLUDES TWO CONVICTIONS FOR POSSESSION OF NARCOTIC DRUGS
CANNOT.  /9/ 

IT MAKES NO SENSE TO DEEM AN ADDICT A "HARDENED CRIMINAL" UNWORTHY
OR UNSUITED FOR TREATMENT SIMPLY BECAUSE HE HAS ENGAGED IN CRIMINAL
ACTIVITY WHICH MAY HAVE BEEN THE SYMPTOM OR PRODUCT OF HIS ADDICTION. 
CONGRESS ENACTED NARA BECAUSE IT KNEW THAT ALMOST ALL ADDICTS ARE
HARDENED CRIMINALS IN THIS SENSE.  NOT ONLY ARE THEY DRIVEN TO ROB AND
STEAL IN ORDER TO OBTAIN MONEY TO SUSTAIN THEIR HABITS, BUT THEIR
HABITS THEMSELVES INVOLVE THE COMMISSION OF FELONIES EVERY DAY OF THEIR
LIVES.  AS THE HOUSE REPORT STATED, THE PURPOSE OF THE BILL WAS "TO
TREAT THE UNFORTUNATE ADDICT WHO IS CAPABLE OF REHABILITATION TO RENDER
ASSISTANCE IN A MANNER WHICH WILL ENABLE HIM TO EXTRICATE HIMSELF FROM
AN OTHERWISE HOPELESS AND REPETITIOUS PATTERN OF ADDICTION AND CRIME." 
/10/ TO DENY TREATMENT TO THOSE ADDICTS WHO HAVE BEEN CONVICTED OF A
CERTAIN NUMBER OF FELONIES, WITHOUT REGARD TO THE RELATIONSHIP BETWEEN
THEIR ADDICTION AND THE PRIOR OFFENSES, IS, IN THE APT WORDS OF
CONGRESSMAN RYAN, LIKE "BUILDING A SANATORIUM TO TREAT TUBERCULOSIS,
AND THEN REFUSING ADMITTANCE TO PATIENTS WITH A CONTAGIOUS DISEASE." 
112 CONG. REC. 11812 (1966).  /11/ 

IT IS ARGUED THAT THE NARA PROGRAM IS ESSENTIALLY EXPERIMENTAL IN
NATURE, AND THAT COURTS SHOULD THEREFORE BE PARTICULARLY RELUCTANT TO
INTERFERE WITH LEGISLATIVE DECISIONS.  BUT THIS OBSERVATION MUST BE
TEMPERED BY A REALIZATION THAT WE ARE EXPERIMENTING HERE WITH PEOPLE'S
LIVES AND HEALTH.  AND IT CAN HARDLY BE SAID THAT A PROGRAM NOW IN ITS
SEVENTH YEAR OF OPERATION IS STILL BASICALLY EXPERIMENTAL.  ONLY LAST
YEAR, CONGRESS BROADENED THE NARA PROGRAM TO INCLUDE METHODONE
MAINTENANCE AS PART OF THE AVAILABLE REHABILITATIVE TREATMENT,
RECOGNIZING THE MANY CASES OF ADDICTION WHICH, THOUGH NOT TOTALLY
CURABLE, CAN BE MAINTAINED IN A MANNER WHICH FOSTERS THE INDIVIDUAL'S
SOCIAL REHABILITATION AND PERMITS HIM TO BECOME A PRODUCTIVE MEMBER OF
SOCIETY.  SEE PUB. L. NO. 92 - 420, 86 STAT. 677; S. REP. NO. 92 - 1071
(1972).  WITH THE PROGRAM WIDENED IN THIS FASHION, IT SEEMS EVEN MORE
IRRATIONAL TO EXCLUDE THOSE WHO MIGHT WELL BENEFIT FROM THE EXPANDED
PROGRAM THROUGH THE OPERATION OF BROAD AND ARBITRARY EXCLUSIONS THAT DO
NOT REASONABLY FURTHER ANY LEGITIMATE CONGRESSIONAL PURPOSES. 

FINALLY, WE MUST BE MINDFUL THAT THE GROWING CONCERN WITH TREATMENT
OF NARCOTICS ADDICTS HAS NOT ARISEN IN A LEGAL VACUUM, BUT HAS
PARALLELED A GROWING AWARENESS OF THE EIGHTH AMENDMENT QUESTIONS RAISED
WHEN CRIMINAL PUNISHMENT IS IMPOSED FOR ACTIVITIES WHICH ARE THE
SYMPTOM OR DIRECT PRODUCT OF THE DISEASE OF NARCOTICS ADDICTION.  /12/
THE COURT TODAY, BY DICTA IMPLYING THAT CONGRESS MAY, CONSISTENT WITH
THE EQUAL PROTECTION CLAUSE, DENY NARA BENEFITS TO PERSONS CONVICTED OF
NARCOTICS-RELATED OFFENSES BECAUSE OF TWO PRIOR CONVICTIONS FOR
NARCOTICS-RELATED OFFENSES, /13/  ONLY EXACERBATES THESE EIGHTH
AMENDMENT PROBLEMS. 

MR. JUSTICE JACKSON, HIMSELF A STRONG OPPONENT OF SUBSTANTIVE DUE
PROCESS, ONCE ARGUED THAT THE VITALITY OF THE EQUAL PROTECTION CLAUSE
AS A GROUND FOR CONSTITUTIONAL ADJUDICATION IS THAT IT DOES NOT DISABLE
ANY GOVERNMENTAL BODY FROM DEALING WITH THE SUBJECT AT HAND.  RATHER,
IT MERELY SENDS THE LEGISLATURE BACK TO THE DRAWING BOARD TO DRAFT A
STATUTE WHICH MORE PRECISELY AND MORE EVENHANDEDLY SOLVES THE PROBLEM. 
SEE RAILWAY EXPRESS V. NEW YORK, 336 U.S. 106, 112 (1949) (CONCURRING
OPINION).  I WOULD NOT DENY CONGRESS THE RIGHT TO LIMIT THE NARA
PROGRAM TO PERSONS WHOSE CRIMINAL ACTIVITY WAS A PRODUCT OF THEIR
ADDICTION, TO THOSE WHO WERE LIKELY TO BE REHABILITATED, OR TO THOSE
WHOSE PRESENCE IN A TREATMENT CENTER WOULD NOT INTERFERE WITH THE
REHABILITATION OF OTHERS.  BUT I WOULD HAVE CONGRESS MAKE A SECOND
ATTEMPT AT DRAFTING A STATUTE WHICH ACTUALLY FURTHERS THESE ENDS. 

/1/  SEE WATSON V. UNITED STATES, 141 U.S. APP. D. C. 335, 439 F.2D
442 (1970); UNITED STATES V. HAMILTON, 149 U.S. APP. D. C. 295, 462
F.2D 1190 (1972); UNITED STATES V. BISHOP, 469 F.2D 1337 (CA1 1972). 
IN ADDITION TO THE STATUTE'S FLAWS NOTED IN THIS OPINION, THESE
DECISIONS ALSO POINT OUT OTHER ANOMALIES IMPLICIT IN THE TWO-FELONY
EXCLUSION.  UNDER THE ACT, AN ADDICT WHO HAS ENGAGED IN TRAFFICKING TO
SUPPORT HIS OWN HABIT WOULD BE ELIGIBLE FOR NONCRIMINAL DISPOSITION
UNDER TIT. II, WHEREAS A NONTRAFFICKING ADDICT FOUND, FOR THE THIRD
TIME, IN POSSESSION OF NARCOTICS FOR HIS OWN USE WOULD NOT.  THIS
RESULT, "IS CURIOUSLY AT ODDS WITH THE CONGRESSIONAL PREOCCUPATION,
UNDERLYING THE NAROCTIC ADDICT REHABILITATION ACT, WITH THE DISTINCTION
BETWEEN TRAFFICKERS AND NON-TRAFFICKERS, AND THE REITERATED PURPOSE
THAT 'STRICT PUNISHMENT ... BE METED OUT WHERE REQUIRED TO THE HARDENED
CRIMINAL, WHILE JUSTICE ... BE TEMPERED WITH JUDGMENT AND FAIRNESS IN
THOSE CASES WHERE IT IS TO THE BEST INTEREST OF SOCIETY AND THE
INDIVIDUAL THAT SUCH A COURSE BE FOLLOWED.'"  WATSON V. UNITED STATES,
SUPRA, AT 349, 439 F.2D, AT 456.  OTHER ANOMALIES STEM FROM THE
DEFINITION OF "FELONY"  IN 18 U.S.C. 4251(D).  "(TWO PERSONS WHO BOTH
HAD TWICE PREVIOUSLY COMMITTED THE IDENTICAL CRIME OF POSSESSION OF
MARIJUANA MIGHT BE TREATED DIFFERENTLY UNDER (THE TWO-FELONY EXCLUSION)
SIMPLY BECAUSE ONE COMMITTED HIS CRIME IN FLORIDA WHERE POSSESSION OVER
FIVE GRAMS IS A FELONY AND THE OTHER COMMITTED HIS IN NEW YORK WHERE IT
IS ONLY A MISDEMEANOR ... OR BECAUSE ONE COMMITTED BOTH OF HIS CRIMES
BEFORE MAY 1, 1971, AND THE OTHER COMMITTED THEM AFTER THAT DATE, WHEN
THE FEDERAL OFFENSE OF MARIJUANA POSSESSION WAS REDUCED TO A
MISDEMEANOR FOR FIRST OFFENDERS...."  UNITED STATES V. BISHOP, SUPRA,
AT 1345. 

/2/  CF. GUNTHER, THE SUPREME COURT 1971 TERM, FOREWORD:  IN SEARCH
OF EVOLVING DOCTRINE ON A CHANGING COURT:  A MOTEL FOR A NEWER EQUAL
PROTECTION, 86 HARV. L. REV. 1, 8 (1972). 

/3/  DRUG ADDICTION IS SPECIFICALLY REFERRED TO AS A "DISEASE" IN
THE SENATE REPORT RECOMMENDING ENACTMENT OF PUB. L. NO. 92 - 420, 86
STAT. 677, WHICH EXPANDED THE NARA PROGRAM TO INCLUDE METHODONE
MAINTENANCE.  SEE S. REP. NO. 92 - 1071, P. 3 (1972).  THE MOST WIDELY
ACCEPTED AND AUTHORITATIVE DEFINITION OF HEROIN ADDICTION IS ONE
PROMULGATED BY THE WORLD HEALTH ORGANIZATION, WHICH LISTS ITS
CHARACTERISTICS AS: 

"(1) AN OVERPOWERING DESIRE OR NEED TO CONTINUE TAKING THE DRUG AND
TO OBTAIN IT BY ANY MEANS; THE NEED CAN BE SATISFIED BY THE DRUG TAKEN
INITIALLY OR BY ANOTHER WITH MORPHINE-LIKE PROPERTIES; 

"(2) A TENDENCY TO INCREASE THE DOSE OWING TO THE DEVELOPMENT OF

  TOLERANCE; 

"(3) A PSYCHIC DEPENDENCE ON THE EFFECTS OF THE DRUG RELATED TO A
SUBJECTIVE AND INDIVIDUAL APPRECIATION OF THOSE EFFECTS; AND 

"(4) A PHYSICAL DEPENDENCE ON THE EFFECTS OF THE DRUG REQUIRING ITS
PRESENCE FOR MAINTENANCE OF HOMEOSTASIS AND RESULTING IN A DEFINITE,
CHARACTERISTIC, AND SELF-LIMITED ABSTINENCE SYNDROME WHEN THE DRUG IS
WITHDRAWN."  UNITED STATE V. MOORE, 158 U.S. APP. D.C. 375, 465 - 466,
486 F.2D 1139, 1229 - 1230 (1973) (WRIGHT, J., DISSENTING), QUOTING
WORLD HEALTH ORGANIZATION EXPERT COMMITTEE ON ADDICTION-PRODUCING
DRUGS, THIRTEENTH REPORT, WORLD HEALTH ORGANIZATION TECHNICAL REPORT
SERIES NO. 273, P. 13 (1964).  CONGRESS HAS SIMILARY DEFINED AN
"ADDICT" TO INCLUDE ONE "WHO IS SO FAR ADDICTED TO THE USE OF NARCOTIC
DRUGS AS TO HAVE LOST THE POWER OF SELF-CONTROL WITH REFERENCE TO HIS
ADDICTION."  21 U.S.C. 802(1). 

/4/  DEFENDANT A WOULD NOT BE EXCLUDED FROM THE PROGRAM UNDER THE
STATUTORY EXCLUSION OF "AN OFFENDER WHO IS CONVICTED OF A CRIME OF
VIOLENCE," 18 U.S.C. 4251(F)(1), SINCE THAT EXCLUSION APPLIES ONLY TO A
PERSON CONVICTED OF A CRIME OF VIOLENCE IN THE SAME PROCEEDING IN WHICH
TIT. II IS CONSIDERED AS AN ALTERNATIVE TO PRISON SENTENCE.  THUS, IF
ONE HAS JUST BEEN CONVICTED OF A "CRIME OF VIOLENCE" AS DEFINED IN
4251(B), ONE IS DISQUALIFIED FROM THE PROGRAM UNDER 4251(F)(1), WHILE
IF ONE HAD PREVIOUSLY BEEN SO CONVICTED BUT IS NOW CONVICTED OF A
NONVIOLENT CRIME, ONE WOULD BE ELIGIBLE.  SEE UNITED STATES V. BISHOP,
469 F.2D, AT 1344.     /5/  CONGRESSMAN CELLER REMARKED:  "EACH
INDIVIDUAL CASE MUST BE SCRUTINIZED TO DETERMINE WHETHER CIVIL
COMMITMENT WILL BE EFFICACIOUS.  I SUBMIT THAT IT SHOULD NOT BE THE
CONGRESS WHO, AT LONG DISTANCE, MAKES SUCH DETERMINATIONS.  IN THE
ABSENCE OF THE FACTS OF INDIVIDUAL CASES, THESE DECISIONS CAN ONLY BE
ARBITRARY."  SEE CIVIL COMMITMENT AND TREATMENT OF NARCOTIC ADDICTS,
HEARINGS ON H. R. 9051, 9159, 9167, AND RELATED BILLS BEFORE
SUBCOMMITTEE NO. 2 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 89TH CONG.,
1ST AND 2D SESS., SER.  10, P. 55 (1965 AND 1966). 

/6/  THE NARCOTIC ADDICT REHABILITATION ACT OF 1966, HEARINGS BEFORE
A SPECIAL SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY, 89TH
CONG., 2D SESS., 91 (1966). 

/7/  SEE CAL. WELF.  & INST.  CODE 3050 - 3054, 3104 - 3107, AND
3109 (1972).  THE CALIFORNIA STATUTE HAS NO EXCLUSION SIMILAR TO THE
TWO-FELONY EXCLUSION.  IT IS ALSO INTERESTING TO NOTE THAT WHILE THE
CALIFORNIA ACT, LIKE THE FEDERAL ACT, EXCLUDES PERSONS CONVICTED OF
CERTAIN CRIMES OF VIOLENCE, SEE ID., 3052, THE STATUTE ALSO PROVIDES
THAT EVEN IN THE CASE OF AN OFFENDER CONVICTED OF A CRIME OF VIOLENCE,
"THE JUDGE MAY REQUEST THE DISTRICT ATTORNEY TO INVESTIGATE THE FACTS
RELEVANT TO THE ADVISABILITY OF COMMITMENT PURSUANT TO THIS SECTION. 
IN UNUSUAL CASES, WHEREIN THE INTEREST OF JUSTICE WOULD BEST BE SERVED,
THE JUDGE MAY, WITH THE CONCURRENCE OF THE DISTRICT ATTORNEY AND
DEFENDANT, ORDER COMMITMENT NOTWIHTSTANDING" THE CRIME-OF-VIOLENCE
EXCLUSION.  ID., 3051. 

/8/  HEARINGS, SUPRA, N. 5, AT 153. 

/9/  THE STATUTE'S DISREGARD OF ALL TIME LIMITS IS FURTHER EVIDENCE
OF ITS ARBITRARY NATURE.  "ALL PRIOR FELONIES ARE COUNTED--WHETHER A
JOY-RIDE BY A PEER-IMITATING TEENAGER OR A RAPE COMMITTED BY A 35 -
YEAR OLD SEX DEVIATE DURING THE PENDENCY OF THE PROCEEDINGS IN WHICH
SENTENCE IS ABOUT TO BE IMPOSED.  ANY INTERVENING PERIOD BETWEEN
FELONIES OF GOOD BEHAVIOR OR ATTEMPTS AT REHABILITATION ARE IGNORED; A
PERSON IS THOUGHT TO HARDEN AS A CRIMINAL MERELY BECAUSE HE ACCUMULATES
A FIXED NUMBER OF JUDGMENTS, REGARDLESS OF CHANGES IN HIS PERSONALITY
OR PERSONAL CIRCUMSTANCES OVER TIME."  UNITED STATES V. BISHOP, SUPRA,
AT 1345. 

/10/  H. R. REP. NO. 1486, 89TH CONG., 2D SESS., 5 (1966). 

/11/  THE MAJORITY'S CONTENTION, SEE ANTE, AT 420 N. 2, THAT
PRISONERS NOT ELIGIBLE FOR THE NARA PROGRAM ARE NOT ACTUALLY DENIED
TREATMENT BECAUSE THEY MAY RECEIVE THE BENEFITS OF SIMILAR PROGRAMS
WITHIN THE FEDERAL BUREAU OF PRISONS IS SIMPLY CONTRARY TO FACT.  AS
THE GOVERNMENT ITSELF INDICATES IN ITS BRIEF, TREATMENT BEGINS
IMMEDIATELY UPON COMMITMENT UNDER NARA, AND THE OFFENDER IS ELIGIBLE
FOR CONDITIONAL RELEASE ON PAROLE AFTER SIX MONTHS OF TREATMENT.  BRIEF
FOR UNITED STATES 2 N. 1.  ADDICTS NOT COMMITTED UNDER NARA, HOWEVER,
ARE NOT PLACED IN ANY REHABILITATION PROGRAM UNTIL ABOUT ONE YEAR
BEFORE THEIR ANTICIPATED RELEASE.  IBID.  THUS, AN ADDICT LIKE
PETITIONER, WHO RECEIVED A 10-YEAR SENTENCE, WILL HAVE TO GO MANY YEARS
WITHOUT TREATMENT FOR HIS DISEASE BECAUSE OF HIS EXCLUSION FROM THE
NARA PROGRAM. 

MORE IMPORTANTLY, WE ARE TOLD THAT THE BUREAU OF PRISONS DOES NOT
HAVE SUFFICIENT FACILITIES FOR TREATMENT OF THE APPROXIMATELY 5,000
FEDERAL PRISONERS ESTIMATED TO SUFFER FROM SOME DEGREE OF DRUG
DEPENDENCY.  IN THE GOVERNMENT'S OWN WORDS:  "THUS, ALTHOUGH COMMITMENT
UNDER NARA ASSURES TREATMENT, A JUDICIAL RECOMMENDATION FOR SIMILAR
TREATMENT AT THE TIME AN ORDINARY CRIMINAL SENTENCE IS IMPOSED DOES
NOT."  ID., AT 3 N. 1.  INDEED, THERE IS NO INDICATION IN THE RECORD IN
THIS CASE THAT PETITIONER HAS YET RECEIVED ANY TREATMENT FOR HIS
ADDICTION, NOTWITHSTANDING THE SENTENCING COURT'S RECOMMENDATION OF
TREATMENT. 

/12/  IN WATSON V. UNITED STATES, 141 U.S. APP. D. C. 335, 439 F.2D
442 (1970), IT WAS ARGUED THAT CRIMINAL PUNISHMENT OF AN ADDICT FOR
POSSESION OF NARCOTICS SOLELY FOR HIS OWN USE WAS IMPERMISSIBLE UNDER
THE EIGHTH AMENDMENT, BUT THE QUESTION WAS LEFT UNDECIDED BECAUSE NOT
CLEARLY RAISED BEFORE THE TRIAL COURT.  SEE ID., AT 346, 439 F.2D, AT
453.  PLENARY CONSIDERATION OF THE EIGHTH AMENDMENT PROBLEMS OF
CONVICTING ADDICTS FOR ADDICTION-RELATED OFFENSES CAME IN UNITED STATES
V. MOORE, 158 U.S. APP. D.C. 375, 486 F.2D 1139 (EN BANC), CERT.
DENIED, POST, P. 980.  ALTHOUGH THE DEFENSE OF ADDICTION WAS REJECTED
BY A 5 - 4 DECISION, IT NOW APPEARS THAT FOR TWO MEMBERS OF THE
MAJORITY, THE REJECTION OF THE EIGHTH AMENDMENT DEFENSE "RESTED ON THE
AVAILABILITY TO THE DEFENDANT-ADDICT OF TREATMENT THROUGH NARA."  SEE
UNITED STATES V. HARRISON, 158 U.S. APP. D. C. 229, 231, 485 F.2D 1108,
1010 (1973). 

THIS COURT HAS PREVIOUSLY DEALT WITH RELATED ISSUES IN ROBINSON V.
CALIFORNIA, 370 U.S. 660 (1962), AND POWELL V. TEXAS, 392 U.S. 514
(1968). 

/13/  AS THE MAJORITY OPINION INDICATES, PETITIONER HAD THREE PRIOR
FELONY CONVICTIONS FOR BURGLARY, FORGERY, AND POSSESION OF A FIREARM,
RESPECTIVELY, AND THERE WAS NO ATTEMPT TO SHOW THAT HIS PRIOR
CONVICTIONS RELATED TO TRAFFIC IN NARCOTICS.  IN ADDITION, THERE DOES
NOT APPEAR TO HAVE BEEN ANY SHOWING THAT PETITIONER'S PRESENT
CONVICTION FOR ENTERING A BANK WITH INTENT TO COMMIT A FELONY WAS
NARCOTIC RELATED.  ACCORDINGLY, THE MAJORITY'S REMARKS WITH RESPECT TO
CONGRESS' POWER TO EXCLUDE FROM THE NARA PROGRAM PERSONS WHOSE PRIOR
AND PRESENT OFFENSES ARE ADDICTION RELATED OR MOTIVATED PURPORT TO
RESOLVE QUESTIONS NOT BEFORE US IN THIS CASE.  SE ANTE, AT 427 - 428. 

JAMES F. HEWITT, BY APPOINTMENT OF THE COURT, 411 U.S. 914, ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

JEWEL S. LAFONTANT ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ASSISTANT ATTORNEY GENERAL PETERSEN,
DEPUTY SOLICITOR GENERAL LACOVARA, HARRIET S. SHAPIRO, JEROME M. FEIT,
AND MARSHALL TAMOR GOLDING. 
..END :










COMMUNIST PARTY OF INDIANA V. WHITCOMB, 414 U.S. 441 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF INDIANA

        NO. 72 - 1040.  ARGUED OCTOBER 16, 1973--DECIDED JANUARY 9,

       1974; REVERSED. 


    THE APPLICATION OF APPELLANTS (THE COMMUNIST PARTY OF INDIANA,

  CERTAIN OF ITS OFFICERS AND POTENTIAL VOTERS, AND ITS CANDIDATES

  FOR PRESIDENT AND VICE PRESIDENT) FOR A PLACE ON THE INDIANA

  BALLOT FOR THE 1972 GENERAL ELECTION WAS REJECTED FOR FAILURE TO

  SUBMIT A STATUTORY LOYALTY OATHE STATING THAT THE PARTY "DOES NOT

  ADVOCATE THE OVERTHROW OF LOCAL, STATE OR NATIONAL GOVERNMENT BY

  FORCE OR VIOLENCE."  APPELLANTS, CONTENDING THAT THE STATUTE WAS

 UNCONSTITUTIONAL, THEREUPON FILED THIS ACTION IN THE DISTRICT

  COURT FOR INJUNCTIVE AND DECLARATORY RELIEF.  ON SEPTEMBER 28,

  1972, A THREE-JUDGE COURT DECLARED THE STATUTE CONSTITUTIONAL AND

  ORDERED THE ELECTION BOARD TO PLACE THE PARTY ON THE BALLOT, BUT

  ONLY IF THE REQUIRED OATH WAS SUBMITTED.  AFTER A QUALIFIED OATH

  SUBMITTED BY THE PARTY WAS REJECTED, APPELLANTS ON OCTOBER 3

  SOUGHT A DISTRICT COURT ORDER DIRECTING THE BOARD TO ACCEPT SUCH

  OATH, AND ON THE SAME DAY THE BOARD REQUESTED RECONSIDERATION OF

  THE SEPTEMBER 28 ORDER.  THE NEXT DAY THE DISTRICT COURT DENIED

  BOTH MOTIONS.  ON OCTOBER 10 APPELLANTS FILED A NOTICE OF APPEAL

  TO THIS COURT, WHICH IT LATER SOUGHT TO WITHDRAW SO THAT THE

  DISTRICT COURT MIGHT ACT ON APPELLANTS'  MOTION OF THE SAME DAY

  THAT THE SEPTEMBER 28 ORDER BE AMENDED IN CERTAIN RESPECTS.  ON

  OCTOBER 31, THE DISTRICT COURT ALLOWED WITHDRAWAL OF THE APPEAL

  NOTICE BUT DENIED THE MOTION TO AMEND. APPELLANTS REFILED THEIR

  NOTICE OF APPEAL TO THIS COURT ON NOVEMBER 29, WHICH APPELLEES

CONTEND IS UNTIMELY.  HELD: 

     1.  APPELLANTS' NOTICE OF APPEAL WAS WITHIN THE 60-DAY APPEAL

  PERIOD PRESCRIBED BY 28 U.S.C. 2101(B), SINCE APPELLEES' OCTOBER

  3 MOTION FOR RECONSIDERATION SUSPENDED THE FINALITY OF THE

  SEPTEMBER 28 JUDGMENT UNTIL THE DISTRICT COURT'S DENIAL OF SUCH

  MOTION ON OCTOBER 4 RESTORED IT, SO THAT THE TIME FOR APPEAL THUS

  BEGAN TO RUN FROM OCTOBER 4.  PP. 445 - 446. 

     2.  THE LOYALTY OATH REQUIREMENT OF THE INDIANA STATUTE

  VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS.  PP. 446 - 450. 

     (A) THE PRINCIPLE THAT THE CONSTITUTIONAL GUARANTEES OF FREE

  SPEECH AND FREE PRESS DO NOT PERMIT A STATE TO FORBID OR

  PROSCRIBE ADVOCACY OF THE USE OF FORCE OR OF LAW VIOLATION EXCEPT

  WHERE SUCH ADVOCACY IS DIRECTED TO INCITING OR PRODUCING IMMINENT

  LAWLESS ACTION AND IS LIKELY TO PRODUCE SUCH ACTION, APPLIES TO

  STATE REGULATION BURDENING ACCESS TO THE BALLOT, RIGHTS OF

  ASSOCIATION IN THE POLITICAL PARTY OF ONE'S CHOICE, CASTING AN

  EFFECTIVE BALLOT, AND IN RUNNING FOR OFFICE, WHICH ARE INTERESTS

  AS SUBSTANTIAL AS THOSE IN OTHER AREAS THAT THIS COURT HAS

  PROTECTED AGAINST STATUTORY SCHEMES CONTRARY TO THE FIRST AND

  FOURTEENTH AMENDMENTS.  PP. 448 - 449. 

 (B) FOR PURPOSES OF DETERMINING WHETHER TO GRANT A PLACE ON THE

  BALLOT, A GROUP ADVOCATING VIOLENT OVERTHROW AS ABSTRACT DOCTRINE

  NEED NOT BE REGARDED AS NECESSARILY ADVOCATING UNLAWFUL ACTION. 

  PP. 449 - 450. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, AND MARSHALL, JJ., JOINED.  POWELL, J., FILED AN
OPINION CONCURRING IN THE RESULT, IN WHICH BURGER, C. J., AND BLACKMUN
AND REHNQUIST, JJ., JOINED, POST, P. 451. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A LOYALTY OATH CASE.  THE QUESTION FOR DECISION IS WHETHER
THE FIRST AND FOURTEENTH AMENDMENTS ARE VIOLATED BY INDIANA'S
REQUIREMENT, IND. ANN. STAT. 29 - 3812 (1969), THAT "(NO EXISTING OR
NEWLY-ORGANIZED POLITICAL PARTY OR ORGANIZATION SHALL BE PERMITTED ON
OR TO HAVE THE NAMES OF ITS CANIDATES PRINTED ON THE BALLOT USED AT ANY
ELECTION UNTIL IT HAS FILED AN AFFIDAVIT, BY ITS OFFICERS, UNDER OATH,
THAT IT DOES NOT ADVOCATE THE OVER-THROW OF LOCAL, STATE OR NATIONAL
GOVERNMENT BY FORCE OR VIOLENCE...."  /1/ 

APPELLANTS ARE THE COMMUNIST PARTY OF INDIANA, A NEW POLITICAL PARTY
IN INDIANA, CERTAIN OF ITS OFFICERS AND POTENTIAL VOTERS, AND ITS
CANDIDATES FOR PRESIDENT AND VICE PRESIDENT IN THE 1972 ELECTION. 
APPELLEES ARE THE INDIANA STATE ELECTION BOARD AND ITS MEMBERS.  WHEN
APPELLANTS APPLIED TO THE ELECTION BOARD IN AUGUST 1972 FOR A PLACE ON
INDIANA'S NATIONAL BALLOT FOR THE 1972 GENERAL ELECTION WITHOUT
SUBMITTING THE REQUIRED OATH, THE BOARD, ON THE ADVICE OF THE ATTORNEY
GENERAL OF INDIANA, REJECTED THE APPLICATION.  APPELLANTS THEREUPON
FILED THIS ACTION IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
INDIANA SEEKING A DECLARATION OF THE UNCONSTITUTIONALITY OF 29 - 3812,
AND AN INJUNCTION REQUIRING THAT THE ELECTION BOARD PLACE THE PARTY ON
THE BALLOT.  A THREE-JUDGE COURT WAS CONVENED AND THAT COURT, ON
SEPTEMBER 28, 1972, IN AN UNREPORTED OPINION, DECLARED THE PROVISION OF
29 - 3812 THAT IS CHALLENGED ON THIS APPEAL CONSTITUTIONAL AND ISSUED
AN ORDER REQUIRING THE ELECTION BOARD TO PLACE THE COMMUNIST PARTY AND
ITS NOMINEES ON THE NATIONAL BALLOT ONLY "(IN THE EVENT THAT THE
COMMUNIST PARTY OF INDIANA SHALL SUBMIT AN AFFIDAVIT IN KEEPING WITH
THIS MEMORANDUM AND ORDER..."  /2/  THE COMMUNIST PARTY SUBMITTED AN
AFFIDAVIT THAT, IN ADDITION TO THE STATUTORY LANGUAGE, ADDED THE
FOLLOWING: 

     "THE TERM ADVOCATE AS USED HEREIN HAS THE MEANING GIVEN IT BY

  THE SUPREME COURT OF THE UNITED STATES IN YATES V. UNITED STATES,

  354 U.S. 298 AT 320, 'THE ADVOCACY AND TEACHING OF CONCRETE

  ACTION FOR THE FORCIBLE OVERTHROW OF THE GOVERNMENT, AND NOT OF

  PRINCIPLES DIVORCED FROM ACTION.'" 

THE ELECTION BOARD REJECTED THE AFFIDAVIT AND APPELLANTS, ON OCTOBER
3, RETURNED TO THE DISTRICT COURT, SEEKING AN ORDER DIRECTING THE BOARD
TO ACCEPT IT.  ON THE SAME DAY, THE ELECTION BOARD FILED A MOTION
REQUESTING RECONSIDERATION OF THE ORDER OF SEPTEMBER 28.  /3/  THE
DISTRICT COURT, ON OCTOBER 4, DENIED BOTH MOTIONS BY ORDER ENTERED THAT
DAY.  APPELLANTS ON OCTOBER 10 FILED A NOTICE OF APPEAL TO THIS COURT
TO ENABLE THEM TO SEEK EMERGENCY RELIEF.  THAT EFFORT WAS ABANDONED,
AND APPELLANTS THEN SOUGHT LEAVE OF THE DISTRICT COURT TO WITHDRAW THE
NOTICE OF APPEAL IN ORDER THAT THE DISTRICT COURT MIGHT ACT ON A MOTION
OF APPELLANTS, ALSO FILED OCTOBER 10, THAT THE DISTRICT COURT AMEND ITS
SEPTEMBER 28 ORDER TO INCLUDE A DETERMINATION THAT 29 - 3812 WAS
CONSTITUTIONAL "ONLY INSOFAR AS IT PROSCRIBES ADVOCACY DIRECTED AT
PROMOTING UNLAWFUL ACTION, AS DISTINGUISHED FROM ADVOCACY OF ABSTRACT
DOCTRINE."  ON OCTOBER 31, THE DISTRICT COURT ENTERED AN ORDER GRANTING
LEAVE TO WITHDRAW THE NOTICE OF APPEAL OF OCTOBER 10 BUT DENYING THE
MOTION TO AMEND THE SEPTEMBER 28 MEMORANDUM. 

APPELLANTS REFILED THEIR NOTICE OF APPEAL ON NOVEMBER 29.  APPELLEES
MOVED TO DISMISS THE APPEAL AS JURISDICTIONALLY UNTIMELY, ARGUING THAT
THE 60 - DAY PERIOD FOR APPEAL, 28 U.S.C. 2101(B), EXPIRED ON NOVEMBER
27.  WE POSTPONED CONSIDERATION OF THE QUESTION OF OUR JURISDICTION TO
THE MERITS.  410 U.S. 981 (1973).  WE HOLD THAT THE APPEAL WAS TIMELY. 
APPELLEES'  MOTION FOR RECONSIDERATION OF OCTOBER 3 SUSPENDED THE
FINALITY OF THE JUDGMENT OF SEPTEMBER 28 UNTIL THE DISTRICT COURT'S
DENIAL OF THE MOTION ON OCTOBER 4 RESTORED IT.  TIME FOR APPEAL THUS
BEGAN TO RUN FROM OCTOBER 4 AND THE NOTICE OF APPEAL FILED NOVEMBER 29
WAS TIMELY.  /4/  AS TO THE MERITS, WE HOLD THAT THE LOYALTY OATH
REQUIREMENT OF 29 - 3812 VIOLATES THE FIRST AND FOURTEENTH AMENDMENT,
/5/  AND THEREFORE REVERSE THE JUDGMENT OF THE DISTRICT COURT.  /6/ 

LOYALTY OATH CASES ARE NOT STRANGERS TO THIS COURT, SEE NOTE,
LOYALTY OATHS, 77 YALE L. J. 739 (1968), BUT THE CONSTITUTIONAL
QUESTIONS PRESENTED IN EARLIER CASES ARISING FROM THEIR USE TO LIMIT
ACCESS TO THE BALLOT HAVE NOT HAD PLENARY CONSIDERATION.  /7/  THE
DISTRICT COURT DECIDED THIS CASE UNDER THE PRESSURE OF A BALLOT
PRINTING DEADLINE, AND ITS MEMORANDUM OPINION STATES NO REASONS AND
CITES NO AUTHORITIES TO SUPPORT THE COURT'S HOLDING THAT "THAT PORTION
OF THE STATUTE PROVIDING 'THAT IT DOES NOT ADVOCATE THE OVERTHROW OF
LOCAL, STATE OR NATIONAL GOVERNMENT BY FORCE OR VIOLENCE,' IS
CONSTITUTIONAL AND HENCE ENFORCEABLE BY INDIANA." 

APPELLEES DO NOT DENY THAT 29 - 3812 EXACTS A BROAD OATH EMBRACING
ADVOCACY OF ABSTRACT DOCTRINE AS WELL AS ADVOCACY OF ACTION.  YET THIS
COURT HAS HELD IN MANY CONTEXTS THAT THE FIRST AND FOURTEENTH
AMENDMENTS RENDER INVALID STATUTES REGULATING ADVOCACY THAT ARE NOT
LIMITED TO ADVOCACY OF ACTION.  AND, AS WE HAVE SO OFTEN EMPHASIZED,
"(PRECISION OF REGULATION MUST BE THE TOUCHSTONE IN AN AREA SO CLOSELY
TOUCHING OUR MOST PRECIOUS FREEDOMS."  NAACP V. BUTTON, 371 U.S. 415,
438 (1963). 

WE MOST RECENTLY SUMMARIZED THE CONSTITUTIONAL PRINCIPLES THAT HAVE
EVOLVED IN THIS AREA IN BRANDENBURG V. OHIO, 385 U.S. 444 (1969).  WE
EXPRESSLY OVERRULED THE EARLIER HOLDING OF WHITNEY V. CALIFORNIA, 274
U.S. 357 (1927), THAT "WITHOUT MORE, 'ADVOCATING' VIOLENT MEANS TO
EFFECT POLITICAL AND ECONOMIC CHANGE INVOLVES SUCH DANGER TO THE
SECURITY OF THE STATE THAT THE STATE MAY OUTLAW IT."  395 U.S., AT
447.  FOR, WE SAID: 

     "(LATER DECISIONS HAVE FASHIONED THE PRINCIPLE THAT THE

  CONSTITUTIONAL GUARANTEES OF FREE SPEECH AND FREE PRESS DO NOT

  PERMIT A STATE TO FORBID OR PROSCRIBE ADVOCACY OF THE USE OF

  FORCE OR OF LAW VIOLATION EXCEPT WHERE SUCH ADVOCACY IS DIRECTED

  TO INCITING OR PRODUCING IMMINENT LAWLESS ACTION AND IS LIKELY TO

  INCITE OR PRODUCE SUCH ACTION.  AS WE SAID IN NOTO V. UNITED

  STATES, 367 U.S. 290, 297 - 298 (1961), 'THE MERE ABSTRACT

  TEACHING ... OF THE MORAL PROPRIETY OR EVEN MORAL NECESSITY FOR A

RESORT TO FORCE AND VIOLENCE, IS NOT THE SAME AS PREPARING A

  GROUP FOR VIOLENT ACTION AND STEELING IT TO SUCH ACTION.'  A

  STATUTE WHICH FAILS TO DRAW THIS DISTINCTION IMPERMISSIBLY

  INTRUDES UPON THE FREEDOMS GUARANTEED BY THE FIRST AND FOURTEENTH

  AMENDMENTS.  IT SWEEPS WITHIN ITS CONDEMNATION SPEECH WHICH OUR

  CONSTITUTION HAS IMMUNIZED FROM GOVERNMENTAL CONTROL.  CF. YATES

  V. UNITED STATES, 354 U.S. 298 (1957)...."  ID., AT 447 - 448. 

THIS PRINCIPLE THAT "THE CONSITUTIONAL GUARANTEES OF FREE SPEECH AND
FREE PRESS DO NOT PERMIT A STATE TO FORBID OR PROSCRIBE ADVOCACY OF THE
USE OF FORCE OR OF LAW VIOLATION EXCEPT WHERE SUCH ADVOCACY IS DIRECTED
TO INCITING OR PRODUCING IMMINENT LAWLESS ACTION AND IS LIKELY TO
INCITE OR PRODUCE SUCH ACTION: HAS BEEN APPLIED NOT ONLY TO STATUTES
THAT DIRECTLY FORBID OR PROSCRIBE ADVOCACY, SEE SCALES V. UNITED
STATES, 367 U.S. 203 (1961); NOTO V. UNITED STATES, 367 U.S. 290
(1961); YATES V. UNITED STATES, 354 U.S. 298 (1957); BUT ALSO TO
REGULATORY SCHEMES THAT DETERMINE ELIGIBILITY FOR PUBLIC EMPLOYMENT,
KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589 (1967); ELFBRANDT V.
RUSSELL, 384 U.S. 11 (1966); CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368
U.S. 278 (1961); SEE ALSO UNITED STATES V. ROBEL, 389 U.S. 258 (1967);
TAX EXEMPTIONS, SPEISER V. RANDALL, 357 U.S. 513 (1968); AND MORAL
FITNESS JUSTIFYING DISBARMENT, SCHWARE V. BOARD OF BAR EXAMINERS, 353
U.S. 232 (1957). 

APPELLEES ARGUE THAT THE PRINCIPLE SHOULD NEVERTHELESS NOT OBTAIN IN
CASES OF STATE REGULATION OF ACCESS TO THE BALLOT.  WE PERCEIVE NO
REASON TO MAKE AN EXCEPTION, AND APPELLEES SUGGEST NONE.  INDEED, ALL
OF THE REASONS FOR APPLICATION OF THE PRINCIPLE IN THE OTHER CONTEXTS
ARE EQUALLY APPLICABLE HERE.  "TO BE SURE, ADMINISTRATION OF THE
ELECTORAL PROCESS IS A MATTER THAT THE CONSTITUTION LARGELY ENTRUSTS TO
THE STATES.  BUT, IN EXERCISING THEIR POWERS OF SUPERVISION OVER
ELECTIONS AND IN SETTING QUALIFICATIONS FOR VOTERS, THE STATES MAY NOT
INFRINGE UPON BASIC CONSTITUTIONAL PROTECTIONS."  KUSPER V. PONTIKES,
ANTE, AT 57 (FOOTNOTE OMITTED).  AT STAKE ARE APPELLANTS' FIRST AND
FOURTEENTH AMENDMENT RIGHTS TO ASSOCIATE WITH OTHERS FOR THE COMMON
ADVANCEMENT OF POLITICAL BELIEFS AND IDEAS.  "THE RIGHT TO ASSOCIATE
WITH THE POLITICAL PARTY OF ONE'S CHOICE IS AN INTEGRAL PART OF THIS
BASIC CONSTITUTIONAL FREEDOM."  IBID.; WILLIAMS V. RHODES, 393 U.S. 23,
30 (1968).  AT STAKE AS WELL ARE APPELLANTS' INTERESTS AS PARTY MEMBERS
IN CASTING AN EFFECTIVE BALLOT.  SEE BULLOCK V. CARTER, 405 U.S. 134,
142 - 144 (1972). 

THUS, BURDENING ACCESS TO THE BALLOT, RIGHTS OF ASSOCIATION IN THE
POLITICAL PARTY OF ONE'S CHOICE, INTERESTS IN CASTING AN EFFECTIVE VOTE
AND IN RUNNING FOR OFFICE, NOT BECAUSE THE PARTY URGES OTHERS "TO DO
SOMETHING, NOW OR IN THE FUTURE ... (BUT) ... MERELY TO BELIEVE IN
SOMETHING," YATES V. UNITED STATES, SUPRA, AT 325, IS TO INFRINGE
INTERESTS CERTAINLY AS SUBSTANTIAL AS THOSE IN PUBLIC EMPLOYMENT, TAX
EXEMPTION, OR THE PRACTICE OF LAW.  FOR "THE RIGHT TO EXERCISE THE
FRANCHISE IN A FREE AND UNIMPAIRED MANNER IS PRESERVATIVE OF OTHER
BASIC CIVIL AND POLITICAL RIGHTS...."  REYNOLDS V. SIMS, 377 U.S. 533,
562 (1964).  "OTHER RIGHTS, EVEN THE MOST BASIC ARE ILLUSORY IF THE
RIGHT TO VOTE IS UNDERMINED."  WESBERRY V. SANDERS, 376 U.S. 1, 17
(1964). 

APPELLEES ARGUE:  "IT IS FRAUDULENT FOR A GROUP SEEKING BY VIOLENT
REVOLUTION TO OVERTHROW OUR DEMOCRATIC FORM OF GOVERNMENT TO DISGUISE
ITSELF AS A POLITICAL PARTY AND USE THE VERY FORMS OF THE DEMOCRACY IT
SEEKS TO SUBVERT IN ORDER TO GAIN SUPPORT AND CARRY ON ITS NEFARIOUS
ENDS."  BRIEF FOR APPELLEES 7.  AGAIN, THEY ARGUE "THAT THE AFFIDAVIT
REQUIRED UNDER THE STATUTE REFERS TO THE OFFICIAL ACTIONS OF THE PARTY
ITSELF, THUS REDUCING TO A MINIMUM ANY POSSIBILITY OF 'INNOCENT
INVOLVEMENT'  IN ACTIVITIES WHICH MIGHT BE CONSIDERED ADVOCACY."  ID.,
AT 10.  AS WE UNDERSTAND APPELLEES, THIS IS AN ARGUMENT THAT, AT LEAST
FOR PURPOSES OF DETERMINING WHETHER TO GRANT A PLACE ON THE BALLOT, ANY
GROUP THAT ADVOCATES VIOLENT OVERTHROW AS ABSTRACT DOCTRINE MUST BE
REGARDED AS NECESSARILY ADVOCATING UNLAWFUL ACTION.  WE REJECT THAT
PROPOSITION.  ITS ACCEPTANCE WOULD ONLY RETURN THE LAW TO THE
"THOROUGHLY DISCREDITED" REGIME OF WHITNEY V. CALIFORNIA, 274 U.S. 357
(1927), UNANIMOUSLY OVERRULED BY THE COURT IN BRANDENBURG V. OHIO, 395
U.S., AT 447, 449.  /8/

              REVERSED. 

/1/  SECTION 29 - 3812 READS IN PERTINENT PART AS FOLLOWS: 

"NO POLITICAL PARTY OR ORGANIZATION SHALL BE RECOGNIZED AND GIVEN A
PLACE ON OR HAVE THE NAMES OF ITS CANDIDATES PRINTED ON THE BALLOT USED
AT ANY ELECTION WHICH ADVOCATES THE OVERTHROW, BY FORCE OR VIOLENCE, OF
THE LOCAL, STATE OR NATIONAL GOVERNMENT, OR WHICH ADVOCATES, OR CARRIES
ON, A PROGRAM OF SEDITION OR OF TREASON, AND WHICH IS AFFILIATED OR
COOPERATES WITH OR HAS ANY RELATION WITH ANY FOREIGN GOVERNMENT, OR ANY
POLITICAL PARTY OR ORGANIZATION WHICH IS IN EXSITENCE AT THE TIME OF
THE PASSAGE OF THIS ACT ... OR WHICH SHALL HAVE HAD A TICKET ON THE
BALLOT ONE OR MORE TIMES PRIOR TO ANY ELECTION, AND WHICH DOES NOT
ADVOCATE ANY OF THE DOCTRINES THE ADVOCACY OF WHICH IS PROHIBITED BY
THIS ACT, SHALL INSERT A PLANK IN ITS PLATFORM THAT IT DOES NOT
ADVOCATE ANY OF THE DOCTRINES PROHIBITED BY THIS ACT.  NO EXISTING OR
NEWLY-ORGANIZED POLITICAL PARTY OR ORGANIZATION SHALL BE PERMITTED ON
OR TO HAVE THE NAMES OF ITS CANDIDATES PRINTED ON THE BALLOT USED AT
ANY ELECTION UNTIL IT HAS FILED AN AFFIDAVIT, BY ITS OFFICERS, UNDER
OATH, THAT IT DOES NOT ADVOCATE THE OVERTHROW OF LOCAL, STATE OR
NATIONAL GOVERNMENT BY FORCE OR VIOLENCE, AND THAT IT IS NOT AFFILATED
WITH AND DOES NOT COOPERATE WITH NOR HAS ANY RELATION WITH ANY FOREIGN
GOVERNMENT, OR ANY POLITICAL PARTY, ORGANIZATION OR GROUP OF
INDIVIDUALS OF ANY FOREIGN GOVERNMENT.  THE AFFIDAVIT HEREIN PROVIDED
FOR SHALL BE FILED WITH THE STATE ELECTION BOARD OR THE COUNTY ELECTION
BOARD HAVING CHARGE OF THE PRINTING OF THE BALLOT ON WHICH SUCH TICKET
IS TO APPEAR." 

/2/  THE DISTRICT COURT'S DECISION OF SEPTEMBER 28 ALSO DECIDED
ATTACKS UPON THE LOYALTY OATH PROVISION OF 29 - 3812 MADE IN ACTIONS
BROUGHT BY TWO OTHER NEW POLITICAL PARTIES, THE AMERICAN INDEPENDENT
PARTY AND THE INDIANA PEACE AND FREEDOM PARTY.  ALL THREE ACTIONS
CHALLENGED, IN ADDITION TO THE "ADVOCACY" PROVISION, THE PROVISION OF
29 - 3812 REQUIRING A PARTY ALSO TO FILE AN AFFIDAVIT THAT "IT IS NOT
AFFILIATED WITH AND DOES NOT COOPERATE WITH NOR HAS ANY RELATION WITH
ANY FOREIGN GOVERNMENT, OR ANY POLITICAL PARTY, ORGANIZATION OR GROUP
OF INDIVIDUALS OF ANY FOREIGN GOVERNMENT."  THE SEPTEMBER 28 MEMORANDUM
OF THE THREE-JUDGE COURT DECLARED THIS PROVISION OF 29 - 3812
UNCONSTITUTIONAL.  THE AMERICAN INDEPENDENT PARTY AND THE INDIANA PEACE
AND FREEDOM PARTY THEN FILED AFFIDAVITS ACCEPTED BY THE ELECTION BOARD
AND WERE PLACED ON THE NATIONAL BALLOT FOR THE 1972 ELECTIONS.  ON
NOVEMBER 11, THE ELECTION BOARD APPEALED THAT PORTION OF THE ORDER TO
THIS COURT.  WE SUMMARILY AFFIRMED.  WHITCOMB V. COMMUNIST PARTY, 410
U.S. 976 (1973).     /3/  SECTION 29 - 3801, IND. STAT. ANN. (1969),
PROVIDES FOR BALLOT LISTING OF ANY PARTY THAT FILES PETITIONS
CONTAINING SIGNATURES OF ONE-HALF OF ONE PERCENT "OF THE TOTAL VOTE OF
ALL PARTIES CAST IN THE STATE FOR SECRETARY OF STATE AT THE LAST
PRECEDING GENERAL ELECTION."  THE SUFFICIENCY OF THE COMMUNIST PARTY
PETITIONS IN THIS RESPECT WAS CHALLENGED BY APPELLEES IN THE DISTRICT
COURT BUT WAS NOT DISCUSSED IN THE COURT'S SEPTEMBER 28 MEMORANDUM
ALTHOUGH THE ISSUANCE OF THE INJUNCTION PRESUPPOSED A DECISION ADVERSE
TO APPELLEES.  THE MOTION FOR RECONSIDERATION REQUESTED THE COURT TO
RECONSIDER THAT RESULT. 

/4/  APPELLEES ALSO ARGUE THAT THE NOTICE OF APPEAL OF NOVEMBER 29
WAS INEFFECTIVE BECAUSE THE EARLIER NOTICE OF OCTOBER 10 DIVESTED THE
DISTRICT COURT OF JURISDICTION AND THAT THAT JURISDICTION COULD NOT
HAVE BEEN REVESTED BY THE GRANTING OF LEAVE TO WITHDRAW THE OCTOBER 10
NOTICE.  BUT SINCE THE OCTOBER 10 NOTICE WAS CLEARLY TIMELY, THAT
ARGUMENT IS REDUCED TO AN ATTACK ON THE UNTIMELINESS UNDER SUPREME
COURT RULE 13(1) OF THE FILING OF THE JURISDICTIONAL STATEMENT ON
JANUARY 26,1973.  TIMELY DOCKETING OF THE JURISDICTIONAL STATEMENT IS
NOT, HOWEVER, JURISDICTIONAL REQUISITE.  JOHNSON V. FLORIDA, 391 U.S.
596, 598 (1968). 

APPELLEES' BRIEF ALSO INVOKES 3 OF THE COMMUNIST CONTROL ACT OF 1954,
68 STAT. 776, 50 U.S.C. 842, PROVIDING THAT "THE COMMUNIST PARTY OF THE
UNITED STATES ... (IS) NOT ENTITLED TO ANY OF THE RIGHTS, PRIVILEGES,
AND IMMUNITIES ATTENDANT UPON LEGAL BODIES CREATED UNDER THE
JURISDICTION OF THE LAWS OF THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF...."  WE HAVE DIFFICULTY UNDERSTANDING APPELLEES'
ARGUMENT THAT THIS STATUTE IS APPLICABLE TO THE COMMUNIST PARTY OF
INDIANA OR IN ANY WAY RELEVANT TO THE ISSUES IN THIS CASE.  THE STATUTE
WAS NOT RELIED UPON BY EITHER THE ELECTION BOARD, OR THE DISTRICT COURT
WHEN IT DENIED DECLARATORY RELIEF.  IN ANY EVENT, INSOFAR AS THE
ARGUMENT IS THAT THIS STATUTE BARS THE COMMUNIST PARTY OF INDIANA FROM
MAINTAINING THIS ACTION, IT IS REJECTED.  SEE COMMUNIST PARTY, U.S.A.
V. CATHERWOOD, 367 U.S. 389 (1961). 

/5/  APPELLANTS ALSO CONTEND THAT THE REQUIREMENT IS
CONSTITUTIONALLY PRECLUDED AS AN OATH DIFFERENT FROM THAT PRESCRIBED
FOR A PRESIDENT BY ART. II, 1, AND FOR ANY OTHER STATE OR FEDERAL
OFFICER BY ART. VI, CL. 3.  SEE COLE V. RICHARDSON, 405 U.S. 676
(1972).  IN VIEW OF OUR RESULT WE NEED NOT ADDRESS THOSE CONTENTIONS. 

/6/  THE ONLY QUESTION PRESENTED IN THE JURISDICTIONAL STATEMENT IS
WHETHER 29 - 3812 IS FACIALLY VALID.  THUS, WE DO NOT REACH THE
QUESTION WHETHER THE ELECTION BOARD'S APPARENT FAILURE TO REQUIRE THE
REPUBLICAN AND DEMOCRATIC PARTIES, THE TWO MAJOR PARTIES IN INDIANA, TO
COMPLY WITH THE STATUTE RISES TO THE LEVEL OF A DENIAL OF EQUAL
PROTECTION OF THE LAW AS APPLIED, OR WAS WITHIN THE BOARD'S
"PROSECUTORIAL DESCRETION."  WE NOTE, HOWEVER, THAT THE ONLY RELEVANT
TESTIMONY IN THE DISTRICT COURT, GIVEN BY THE BOARD'S CLERK IS ENTIRELY
SILENT AS TO THE REASONS BEHIND THE OMISSION. 

/7/  E.G., LISKER V. KELLEY, 401 U.S. 928 (1971), SUMMARILY AFF'G
315 F.SUPP.  777 (1970); GERENDE V. BOARD OF SUPERVISORS, 341 U.S. 56
(1951), PRESENTING A CONSTITUTIONAL CHALLENGE TO A MARYLAND STATUTE
IMPOSING A LOYALITY REQUIREMENT ON CANDIDATES FOR MUNICIPAL OFFICE
RESTED ON "THE NARROWING CONSTRUCTION TENDERED BY THE ATTORNEY GENERAL
(OF MARYLAND) DURING ORAL ARGUMENT SO AS TO AVOID THE CONSITUTIONAL
ISSUE THAT WAS ARGUED."  WHITEHILL V. ELKINS, 389 U.S. 54, 58 (1967). 
AND SOCIALIST LABOR PARTY V. GILLIGAN, 406 U.S. 583 (1972), WAS
DISMISSED AS INSUFFICIENTLY CONCRETE AND MATURE TO PERMIT ADJUDICATION,
ON THE AUTHORITY OF RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549
(1947). 

/8/  CF. NOTO V. UNITED STATES, 367 U.S. 290, 298 (1961), A
PRESECUTION UNDER THE SMITH ACT, 18 U.S.C. 2385, WHERE WE HELD THAT THE
CONSTITUTIONAL LIMITATIONS REQUIRE THAT CRIMINAL ADVOCACY BY THE
COMMUNIST PARTY BE PROVED BY "SOME SUBSTANTIAL DIRECT OR CIRCUMSTANTIAL
EVIDENCE OF A CALL TO VIOLENCE NOW OR IN THE FUTURE WHICH IS BOTH
SUFFICIENTLY STRONG AND SUFFICIENTLY PERVASIVE TO LEND COLOR TO THE
OTHERWISE AMBIGUOUS THEORETICAL MATERIAL REGARDING COMMUNIST PARTY
TEACHING, AND TO JUSTIFY THE INFERENCE THAT SUCH A CALL TO VIOLENCE MAY
FAIRLY BE IMPUTED TO THE PARTY AS A WHOLE, AND NOT MERELY TO SOME
NARROW SEGMENT OF IT."  SEE ALSO SCALES V. UNITED STATES, 367 U.S. 203
(1961); YATES V. UNITED STATES, 354 U.S. 298 (1957). 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE REHNQUIST JOIN, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT.  IN MY VIEW IT WAS QUITE UNNECESSARY TO
REACH THE ISSUE ADDRESSED BY THE COURT. 

IT WAS ESTABLISHED AT TRIAL THAT APPELLEES HAD CERTIFIED THE
DEMOCRATIC AND REPUBLICAN PARTIES DESPITE THE FAILURE OF PARTY
OFFICIALS TO SUBMIT THE PRESCRIBED AFFIDAVITS UNDER IND. ANN. STAT. 29
3812 (1969).  /1/  IN WILLIAMS V. RHODES, 393 U.S. 23, 31 (1968), THIS
COURT HELD THAT A DISCRIMINATORY PREFERENCE FOR ESTABLISHED PARTIES
UNDER A STATE'S ELECTORAL SYSTEM CAN BE JUSTIFIED ONLY BY A "COMPELLING
STATE INTEREST."  IN THE PRESENT CASE, NO COLORABLE JUSTIFICATION HAS
BEEN OFFERED FOR PLACING ON APPELLANTS BURDENS NOT IMPOSED ON THE TWO
ESTABLISHED PARTIES.  /2/  IT FOLLOWS THAT THE APPELLEES'
DISCRIMINATORY APPLICATION OF THE INDIANA STATUTE DENIED APPELLANTS
EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT.  /3/ 

/1/  THE COMPLAINT IN THIS CASE EXPRESSLY ALLEGED THAT 29 - 3812
SUBJECTED APPELLANTS TO BURDENS NOT IMPOSED ON THE REPUBLICAN AND
DEMOCRATIC PARTIES, AND PROOF AT TRIAL WAS DIRECTED TO THAT ISSUE.  THE
COURT NOW MAINTAINS THAT THIS ISSUE CANNOT BE CONSIDERED BECAUSE IT WAS
NOT EXPRESSLY RAISED IN THE JURISDICTIONAL STATEMENT.  ANTE, AT 446 -
447, N. 6.  SUPREME COURT RULE 15(1)(C) PROVIDES, HOWEVER, THAT THE
JURISDICTIONAL STATEMENT "WILL BE DEEMED TO INCLUDE EVERY SUBSIDIARY
QUESTION FAIRLY COMPRISED THEREIN" AND THAT "QUESTIONS SET FORTH IN THE
JURISDICTIONAL STATEMENT OR FAIRLY COMPRISED THEREIN WILL BE CONSIDERED
BY THE COURT."  THE ISSUE OF DISCRIMINATORY APPLICATION OF THE STATUTE
CERTAINLY FALLS WITHIN THE GRAVAMEN OF APPELLANTS' JURISDICTIONAL
STATEMENT AND SHOULD THEREFORE BE CONSIDERED.  SEE, E.G., UNITED STATES
V. ARNOLD, SCHWINN & CO., 388 U.S. 365, 371 - 372 N. 4 (1967). 
MOREOVER, THE APPROPRIATE EXERCISE OF JUDICIAL POWER REQUIRES THAT
IMPORTANT CONSTITUTIONAL ISSUES NOT BE DECIDED UNNECESSARILY WHERE
NARROWER GROUNDS EXIST FOR ACCORDING RELIEF.  THIS CONSIDERATION
APPLIES EVEN THOUGH SUCH GROUNDS ARE NOT RAISED IN THE JURISDICTIONAL
SUBMISSIONS.  BOYNTON V. VIRGINIA, 364 U.S. 454, 457 (1960).  CF. BARR
V. MATTEO, 355 U.S. 171, 172, (1957). 

/2/  THE COURT'S INTIMATION THAT A PRIMA FACIE CASE OF
CONSTITUTIONAL DEPRIVATION WAS NOT ESTABLISHED BECAUSE BOARD OFFICIALS
WERE "SILENT AS TO THE REASONS BEHIND THE OMISSION" OF THE ESTABLISHED
PARTIES FROM THE AFFIDAVIT REQUIREMENT (ANTE, AT 447 N. 6) MISSES THE
POINT.  NOTHING MORE NEED BE SHOWN THAN THAT THE STATUTE WAS IN FACT
DISCRIMINATORILY APPLIED.  IT IS THE BOARD OFFICIALS, NOT THE
APPELLANTS, WHO MUST THEN COME FORTH WITH REASONS JUSTIFYING THE
DISCRIMINATORY APPLICATION OF THE STATUTE. 

/3/  IN VIEW OF THIS PATENTLY UNCONSTITUTIONAL APPLICATION OF THE
STATUTE, THERE IS NO OCCASION TO REACH THE BROADER ISSUE ADDRESSED BY
THE COURT TODAY.  ALTHOUGH I EXPRESS NO CONCLUSION ON THAT ISSUE, IT
SHOULD BE NOTED THAT THIS IS THE FIRST CASE TOUCHING UPON THE TYPE OF
OATH WHICH MAY BE REQUIRED OF A CANDIDATE FOR THE OFFICE OF PRESIDENT
OF THE UNITED STATES.  THE INDIANA OATH, OF COURSE, IS REQUIRED OF THE
PARTY RATHER THAN ITS PRESIDENTIAL CANDIDATE.  BUT IT COULD BE ARGUED
THAT YATES V. UNITED STATES, 354 U.S. 298 (1957), AND ITS PROGENY ARE
NOT CONTROLLING HERE.  UNDER ART. VI, CL. 3, ALL STATE AND FEDERAL
OFFICERS ARE BOUND BY OATH "TO SUPPORT THIS CONSTITUTION," AND UNDER
ART. II, 1, CL. 8, THE PRESIDENT MUST SWEAR THAT HE WILL "FAITHFULLY
EXECUTE THE OFFICE ... AND WILL TO THE BEST OF (HIS) ABILITY, PRESERVE,
PROTECT AND DEFEND THE CONSTITUTION OF THE UNITED STATES."  ART. II, 3,
ALSO IMPOSES ON THE PRESIDENT THE AFFIRMATIVE DUTY TO "TAKE CARE THAT
THE LAWS BE FAITHFULLY EXECUTED."  NEITHER THE EFFECT OF THESE EXPLICIT
CONSTITUTIONAL OBLIGATIONS NOR THE RESPONSIBILITY OF A CHIEF EXECUTIVE
OFFICIAL OF GOVERNMENT TO ENFORCE THE RULE OF LAW WAS A RELEVANT ISSUE
IN ANY OF THE YATES LINE OF CASES.  CF. COLE V. RICHARDSON, 405 U.S.
676 (1972). 

SANFORD JAY ROSEN ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WAS MELVIN L. WULF. 

THEODORE L. SENDAK, ATTORNEY GENERAL OF INDIANA, ARGUED THE CAUSE
FOR APPELLEES.  WITH HIM ON THE BRIEF WERE DARREL K. DIAMOND, ASSISTANT
ATTORNEY GENERAL, AND A. FRANK GLEAVES III, DEPUTY ATTORNEY GENERAL. 
..END :

















PASSENGER CORP. V. PASSENGERS ASSN., 414 U.S. 453 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 72 - 1289.  ARGUED NOVEMBER 12, 1973--DECIDED JANUARY 9,

           1974; 154 U.S. APP. D. C. 214, 475 F.2D 325, REVERSED

           AND REMANDED. 


    RESPONDENT BROUGHT THIS ACTION TO ENJOIN DISCONTINUANCE OF

  CERTAIN PASSENGER TRAINS ON THE GROUND THAT SUCH DISCONTINUANCE

  WAS PROHIBITED BY THE RAIL PASSENGER SERVICE ACT OF 1970 (AMTRAK

  ACT).  THE DISTRICT COURT DISMISSED THE ACTION ON THE GROUND THAT

  RESPONDENT LACKED STANDING UNDER 307(A) OF THE AMTRAK ACT, WHICH

  CONFERS JURISDICTION ON FEDERAL DISTRICT COURTS TO GRANT

  EQUITABLE RELIEF ON PETITION OF THE ATTORNEY GENERAL OR, IN A

  CASE INVOLVING A LABOR AGREEMENT, ON PETITION OF ANY AFFECTED

  EMPLOYEE, INCLUDING AUTHORIZED EMPLOYEE REPRESENTATIVES, IF

AMTRAK OR ANY RAILROAD ACTS INCONSISTENTLY WITH THE ACT OR FAILS

  TO DISCHARGE ITS RESPONSIBILITIES THEREUNDER.  THE COURT OF

  APPEALS REVERSED, HOLDING THAT RESPONDENT DID HAVE STANDING AND

  THAT 307(A) DOES NOT OTHERWISE BAR SUCH A SUIT BY AN ALLEGEDLY

  AGGRIEVED PRIVATE PARTY.  HELD: SECTION 307(A), IN LIGHT OF ITS

  EXPRESS LANGUAGE, AND THE LEGISLATIVE HISTORY OF THAT PROVISION

  AND OF THE ACT AS A WHOLE, PROVIDES THE EXCLUSIVE REMEDIES FOR

  BREACHES OF ANY DUTIES OR OBLIGATIONS IMPOSED BY THE ACT, AND NO

ADDITIONAL PRIVATE CAUSE OF ACTION TO ENFORCE COMPLIANCE WITH THE

  ACT CAN PROPERLY BE INFERRED.  PP. 445 - 465. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND WHITE, MARSHALL, BLACKMUN, AND REHNQUIST, JJ., JOINED. 
BRENNAN, J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 465. 
DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 466.  POWELL, J.,
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, THE NATIONAL ASSOCIATION OF RAILROAD PASSENGERS
(NARP), BROUGHT THIS ACTION IN THE DISTRICT COURT TO ENJOIN THE
ANNOUNCED DISCONTINUANCE OF CERTAIN PASSENGER TRAINS THAT HAD
PREVIOUSLY BEEN OPERATED BY THE CENTRAL OF GEORGIA RAILWAY CO.
(CENTRAL).  NAMED AS DEFENDANTS WERE CENTRAL, ITS PARENT, SOUTHERN
RAILWAY CO. (SOUTHERN), AND THE NATIONAL RAILROAD PASSENGER CORP.
(AMTRAK), ALL OF WHICH ARE THE PETITIONERS IN THIS COURT.  THE QUESTION
BEFORE US IS WHETHER THIS ACTION IS MAINTAINABLE UNDER APPLICABLE
FEDERAL LAW. 

AFTER THE ENACTMENT OF THE RAIL PASSENGER SERVICE ACT OF 1970
(AMTRAK ACT), 84 STAT. 1327, 45 U.S.C. 501 ET SEQ., CENTRAL CONTRACTED
WITH AMTRAK FOR THE LATTER TO ASSUME CENTRAL'S INTERCITY RAIL PASSENGER
SERVICE RESPONSIBILITIES.  /1/  SOUTHERN HAS NOT ENTERED INTO ANY
CONTRACT WITH AMTRAK.  THE TRAIN DISCONTINUANCES THAT PRECIPITATED THIS
ACTION WERE ANNOUNCED BY AMTRAK PURSUANT TO 404(B)(2) OF THE AMTRAK
ACT, 45 U.S.C. 564(B)(2).  /2/  THE GRAVAMEN OF THE RESPONDENT'S
COMPLAINT WAS THAT THESE DISCONTINUANCES ARE NOT AUTHORIZED BY, AND IN
FACT ARE PROHIBITED BY, THE AMTRAK ACT.  /3/  THE DISTRICT COURT
CONCLUDED THAT THE RESPONDENT LACKS STANDING UNDER 307 OF THE AMTRAK
ACT, 45 U.S.C. 547, AND ACCORDINGLY DISMISSED THE ACTION.  THE COURT OF
APPEALS REVERSED AND HELD THAT THE RESPONDENT HAS STANDING AND THAT 307
DOES NOT OTHERWISE BAR SUCH A SUIT BY A PRIVATE PARTY WHO IS ALLEGEDLY
AGGRIEVED.  /4/  WE GRANTED CERTIORARI TO DECIDE WHETHER SUCH A PRIVATE
CAUSE OF ACTION CAN BE MAINTAINED IN LIGHT OF 307(A) OF THE AMTRAK
ACT.  411 U.S. 981 (1973). 

IN THIS COURT AND IN THE COURT OF APPEALS, THE PARTIES HAVE
APPROACHED THE QUESTION FROM SEVERAL PERSPECTIVES.  THS ISSUE HAS BEEN
VARIOUSLY STATED TO BE WHETHER THE AMTRAK ACT CAN BE READ TO CREATE A
PRIVATE RIGHT OF ACTION TO ENFORCE COMPLIANCE WITH ITS PROVISIONS;
WHETHER A FEDERAL DISTRICT COURT HAS JURISDICTION UNDER THE TERMS OF
THE ACT TO ENTERTAIN SUCH A SUIT; AND WHETHER THE RESPONDENT HAS
STANDING TO BRING SUCH A SUIT.  BECAUSE THE REFERENCE IN EACH INSTANCE
IS TO 307(A) OF THE ACT AND THE LEGISLATIVE HISTORY BEHIND THAT
PROVISION, THESE QUESTIONS OVERLAP IN THE CONTEXT OF THIS CASE EVEN
MORE THAN THEY ORDINARILY WOULD.  BUT, HOWEVER PHRASED, THE THRESHOLD
QUESTION CLEARLY IS WHETHER THE AMTRAK ACT OR ANY OTHER PROVISION OF
LAW CREATES A CAUSE OF ACTION WHEREBY A PRIVATE PARTY SUCH AS THE
RESPONDENT CAN ENFORCE DUTIES AND OBLIGATIONS IMPOSED BY THE ACT; FOR
IT IS ONLY IF SUCH A RIGHT OF ACTION EXISTS THAT WE NEED CONSIDER
WHETHER THE RESPONDENT HAD STANDING TO BRING THE ACTION AND WHETHER THE
DISTRICT COURT HAD JURISDICTION TO ENTERTAIN IT. 

THE RESPONDENT HAS POINTED TO NO PROVISION OF LAW OUTSIDE THE AMTRAK
ACT ITSELF THAT CAN BE READ TO CREATE OR IMPLY THE CAUSE OF ACTION THAT
IT SEEKS TO BRING AGAINST THE PETITIONERS.  IT FOLLOWS THAT SUPPORT FOR
THE BRINGING OF THIS ACTION MUST BE FOUND, IF AT ALL, WITHIN THE FOUR
CORNERS OF THAT ACT.  THE ONLY SECTION OF THE ACT THAT AUTHORIZES ANY
SUITS TO ENFORCE DUTIES AND OBLIGATIONS IS 307(A), WHICH PROVIDES: 

     "IF THE CORPORATION OR ANY RAILROAD ENGAGES IN OR ADHERES TO

  ANY ACTION, PRACTICE, OR POLICY INCONSISTENT WITH THE POLICIES

  AND PURPOSES OF THIS CHAPTER, OBSTRUCTS OR INTERFERES WITH ANY

  ACTIVITIES AUTHORIZED BY THIS CHAPTER, REFUSES, FAILS, OR

  NEGLECTS TO DISCHARGE ITS DUTIES AND RESPONSIBILITIES UNDER THIS

  CHAPTER, OR THREATENS ANY SUCH VIOLATION, OBSTRUCTION,

  INTERFERENCE, REFUSAL, FAILURE, OR NEGLECT, THE DISTRICT COURT OF

THE UNITED STATES FOR ANY DISTRICT IN WHICH THE CORPORATION OR

  OTHER PERSON RESIDES OR MAY BE FOUND SHALL HAVE JURISDICTION,

  EXCEPT AS OTHERWISE PROHIBITED BY LAW, UPON PETITION OF THE

  ATTORNEY GENERAL OF THE UNITED STATES OR, IN A CASE INVOLVING A

  LABOR AGREEMENT, UPON PETITION OF ANY EMPLOYEE AFFECTED THEREBY,

  INCLUDING DULY AUTHORIZED EMPLOYEE REPRESENTATIVES, TO GRANT SUCH

  EQUITABLE RELIEF AS MAY BE NECESSARY OR APPROPRIATE TO PREVENT OR

  TERMINATE ANY VIOLATION, CONDUCT, OR THREAT."  45 U.S.C. 547(A). 

IN TERMS, 307(A) PURPORTS ONLY TO CONFER JURISDICTION, NOT TO CREATE A
CAUSE OF ACTION.  THE LEGISLATIVE HISTORY, HOWEVER, MAKES CLEAR THAT
THE CONGRESSIONAL PURPOSE WAS TO AUTHORIZE CERTAIN TYPES OF SUITS FOR
THE ENFORCEMENT OF THE ACT'S PROVISIONS.  THE HOUSE REPORT EXPLAINED
THE SECTION AS FOLLOWS: 

     "SECTION 307 AUTHORIZES THE ATTORNEY GENERAL OF THE UNITED

STATES TO SUE THE CORPORATION OR ANY RAILROAD TO PREVENT ACTS OF

  OMISSION OR COMMISSION IN VIOLATION OF THIS LEGISLATION.  IN THE

  CASE OF LABOR AGREEMENTS, INDIVIDUAL EMPLOYEES OR DULY AUTHORIZED

  EMPLOYEE REPRESENTATIVES MAY SUE FOR EQUITABLE RELIEF."  H. R.

  REP. NO. 91 - 1580, P. 9 (1970). 

IN LIGHT OF THE LANGUAGE AND LEGISLATIVE HISTORY OF 307(A), WE READ
IT AS CREATING A PUBLIC CAUSE OF ACTION, MAINTAINABLE BY THE ATTORNEY
GENERAL, TO ENFORCE THE DUITES AND RESPONSIBILITIES IMPOSED BY THE
ACT.  THE ONLY PRIVATE CAUSE OF ACTION CREATED BY THAT PROVISION,
HOWEVER, IS EXPLICITLY LIMITED TO "A CASE INVOLVING A LABOR
AGREEMENT."  THUS, NO AUTHORITY FOR THE ACTION THE RESPONDENT HAS
BROUGHT CAN BE FOUND IN THE LANGUAGE OF 307(A).  THE ARGUMENT IS MADE,
HOWEVER, THAT 307(A) SERVES ONLY TO AUTHORIZE CERTAIN SUITS AGAINST
AMTRAK AND THAT IT SHOULD NOT BE READ TO PRECLUDE OTHER PRIVATE CAUSES
OF ACTION FOR THE ENFORCEMENT OF OBLIGATIONS IMPOSED BY THE ACT.  THE
RESPONDENT CLAIMS THAT RAILROAD PASSENGERS ARE THE INTENDED
BENEFICIARIES OF THE ACT AND THAT THE COURTS SHOULD THEREFORE IMPLY A
PRIVATE CAUSE OF ACTION WHEREBY THEY CAN ENFORCE COMPLIANCE WITH THE
ACT'S PROVISIONS.  SEE J. I. CASE CO. V. BORAK, 377 U.S. 426, 431 - 432
(1964).  IT GOES WITHOUT SAYING, HOWEVER, THAT THE INFERENCE OF SUCH A
PRIVATE CAUSE OF ACTION NOT OTHERWISE AUTHORIZED BY THE STATUTE MUST BE
CONSISTENT WITH THE EVIDENT LEGISLATIVE INTENT AND, OF COURSE, WITH THE
EFFECTUATION OF THE PURPOSES INTENDED TO BE SERVED BY THE ACT. 

A FREQUENTLY STATED PRINCIPLE OF STATUTORY CONSTRUCTION IS THAT WHEN
LEGISLATION EXPRESSLY PROVIDES A PARTICULAR REMEDY OR REMEDIES, COURTS
SHOULD NOT EXPAND THE COVERAGE OF THE STATUTE TO SUBSUME OTHER
REMEDIES.  "WHEN A STATUTE LIMITS A THING TO BE DONE IN A PARTICULAR
MODE, IT INCLUDES THE NEGATIVE OF ANY OTHER MODE."  BOTANY MILLS V.
UNITED STATES, 278 U.S. 282, 289 (1929).  THIS PRINCIPLE OF STATUTORY
CONSTRUCTION REFLECTS AN ANCIENT MAXIM--EXPRESSIO UNIUS EST EXCLUSIO
ALTERIUS.  SINCE THE ACT CREATES A PUBLIC CAUSE OF ACTION FOR THE
ENFORCEMENT OF ITS PROVISIONS AND A PRIVATE CAUSE OF ACTION ONLY UNDER
VERY LIMITED CIRCUMSTANCES, THIS MAXIM WOULD CLEARLY COMPEL THE
CONCLUSION THAT THE REMEDIES CREATED IN 307(A) ARE THE EXCLUSIVE MEANS
TO ENFORCE THE DUTIES AND OBLIGATIONS IMPOSED BY THE ACT.  BUT EVEN THE
MOST BASIC GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION MUST YIELD TO
CLEAR CONTRARY EVIDENCE OF LEGISLATIVE INTENT.  NEUBERGER V.
COMMISSIONER, 311 U.S. 83, 88 (1940).  ACCORDINGLY, WE TURN TO THE
LEGISLATIVE HISTORY OF 307(A). 

THE ORIGINAL DRAFT OF 307(A) DIFFERED FROM ITS PRESENT FORM IN
SEVERAL RESPECTS.  IT CONFERRED UPON FEDERAL DISTRICT COURTS
JURISDICTION TO ENTERTAIN SUITS AGAINST AMTRAK (BUT NOT INDIVIDUAL
RAILROADS) "UPON PETITION OF THE ATTORNEY GENERAL OF THE UNITED STATES
OR, IN A CASE INVOLVING A LOBOR AGREEMENT, UPON PETITION OF ANY
INDIVIDUAL AFFECTED THEREBY...."  /5/  AT THE HEARINGS OF THE HOUSE
COMMITTEE, REPRESENTATIVES OF ORGANIZED LABOR TOOK ISSUE WITH CERTAIN
ASPECTS OF THE DRAFT PROVISION AND PROPOSED SEVERAL CHANGES.  ONE OF
THESE PROPOSALS WOULD HAVE AUTHORIZED SUITS AGAINST THE RAILROADS AS
WELL AS AMTRAK.  ANOTHER WOULD HAVE AUTHORIZED PRIVATE SUITS BY "ANY
PERSON ADVERSELY AFFECTED OR AGGRIEVED THEREBY, INCLUDING THE
REPRESENTATIVES OF THE EMPLOYEES OF ANY RAILROAD OR OF THE
CORPORATION."  IN SUPPORT OF THE LATTER PROPOSAL, ONE LABOR SPOKESMAN
TESTIFIED: 

     "THE ... AMENDMENT WE PROPOSE WOULD MODIFY THE LANGUAGE OF

  SECTION 307(A) ... SO AS TO PRIVIDE THAT ANY AGGRIEVED PARTY,

  INCLUDING EMPLOYEE REPRESENTATIVES, COULD INSTITUTE LEGAL

  PROCEEDINGS FOR VIOLATIONS OF THE LAW. 

        .          .          .      . 

     "AS THE BILL NOW READS, ONLY THE ATTORNEY GENERAL, EXCEPT IN

  CASES INVOLVING A LABOR AGREEMENT, COULD BRING SUCH ACTIONS." 

  SUPPLEMENTAL HEARINGS ON H. R. 17849 AND S. 3706 BEFORE THE

  SUBCOMMITTEE ON TRANSPORTATION AND AERONAUTICS OF THE HOUSE

  COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 91ST CONG., 2D

  SESS., SER.  91 - 62, P. 134 (1970) (EMPHASIS ADDED). 

THE SECRETARY OF TRANSPORTATION, WHO WAS TO BE THE PRIMARY
ADMINISTRATIVE OFFICER RESPONSIBLE FOR THE IMPLEMENTATION OF THE ACT,
SENT A LETTER TO THE SUBCOMMITTEE CHAIRMAN COMMENTING ON THESE PROPOSED
CHANGES.  HIS LETTER STATED THAT HE DID NOT OBJECT TO ALLOWING SUITS
AGAINST RAILROADS AS WELL AS AMTRAK.  /6/  AS TO THE PROPOSAL TO AMEND
THE BILL TO PERMIT SUITS BY ANY "AGGRIEVED PERSON," HOWEVER, HE
STATED: 

     "SANCTIONS ARE NORMALLY IMPOSED BY THE GOVERNMENT. 

  CONSEQUENTLY, I WOULD BE OPPOSED TO PERMITTING 'ANY PERSON' TO

  SEEK ENFORCEMENT OF SECTION 307.  I WOULD HAVE NO OBJECTION,

  HOWEVER, IF THE SECTION WERE REVISED TO PERMIT EMPLOYEE

  REPRESENTATIVES, AS WELL AS EMPLOYEES ADVERSELY AFFECTED, TO SEEK

  EQUITABLE RELIEF."  HEARINGS, SUPRA, AT 85. 

THEREAFTER, THE COMMITTEE REDRAFTED 307(A) IN CONFORMITY WITH THE
SECRETARY'S RECOMMENDATIONS.  THE COMMITTEE'S REDRAFT AND THE BILL AS
FINALLY ENACTED AUTHORIZED SUITS AGAINST RAILROADS AS WELL AS AMTRAK,
AND PERMITTED SUITS INVOLVING LABOR AGREEMENTS BY "DULY AUTHORIZED
EMPLOYEE REPRENTATIVES"  AS WELL AS BY AFFECTED EMPLOYEES, BUT DID NOT
AUTHORIZE SUITS BY "ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED." 

BOTH THE SECRETARY OF TRANSPORTATION AND THE REPRESENTATIVES OF
ORGANIZED LABOR THUS INTERPRETED 307(A) IN ITS PRESENT FORM AS
PRECLUDING PRIVATE ACTIONS OTHER THAN THOSE SPECIFICALLY AUTHORIZED
THEREIN.  ALTHOUGH THE TRANSCRIPT OF THE HOUSE COMMITTEE HEARINGS DOES
NOT INDICATE THAT ANY COMMITTEE MEMBER VOICED EXPLICIT AFFIRMATIVE
AGREEMENT WITH THIS INTERPRETATION, IT IS SURELY MOST UNLIKELY THAT THE
MEMBERS OF THE COMMITTEE WOULD HAVE STOOD MUTE IF THEY HAD DISAGREED
WITH IT.  ESPECIALLY IN LIGHT OF THE SECRETARY'S SUBSTANTIAL ROLE IN
THE EVENTUAL IMPLEMENTATION OF THE ACT, /7/  WE CANNOT CONCLUDE THAT
HIS INTERPRETATION OF ITS DRAFT PROVISIONS WAS NOT ACCORDED SIGNIFICANT
WEIGHT BY THE COMMITTEE. 

THE MEMBERS OF THE COMMITTEE HAD BEFORE THEM A SPECIFIC PROPOSAL
THAT WOULD HAVE ALTERED THE INTERPRETATION THAT WAS BEING PLACED ON
307(A), AND WOULD HAVE EXPLICITLY PERMITTED SUIT TO ENFORCE THE ACT'S
PROVISIONS BY "ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED."  THE
COMMITTEE'S DELIBERATE FAILURE TO ADOPT THAT PROPOSAL, AFTER LEARNING
OF THE SECRETARY'S VIEWS, CANNOT BUT GIVE WEIGHT TO THE CONCLUSION THAT
THE COMMITTEE AGREED WITH THE SECRETARY'S INTERPRETATION OF THE MEANING
AND EFFECT OF THE EXISTING LANGUAGE, AS WELL AS WITH HIS OPPOSITION TO
THE PROPOSED CHANGE.  THESE FACTORS ARE SUBSTANTIAL INDICIA THAT THE
LEGISLATORS UNDERSTOOD THAT 307(A) AS WRITTEN WOULD PRECLUDE PRIVATE
CAUSES OF ACTION TO ENFORCE COMPLIANCE WITH THE ACT, OTHER THAN IN THE
LIMITED AREA OF CASES "INVOLVING A LABOR AGREEMENT."  WE HAVE FOUND NO
CONTRARY INDICATION IN ANY OF THE HEARINGS OR COMMITTEE REPORTS.  THUS,
THE EXPLICIT LEGISLATIVE HISTORY OF 307(A), SUCH AS IT IS, SERVES TO
SUPPORT THE SAME INTERPRETATION OF ITS LANGUAGE THAT WOULD BE ACCORDED
BY SETTLED RULES OF STATUTORY CONSTRUCTION. 

THIS CONSTRUCTION OF 307(A) IS ALSO COMPLETELY CONSISTENT WITH THE
ACT AS A WHOLE AND WITH ITS MORE GENERALIZED LEGISLATIVE HISTORY.  IN
OUTLINING THE PURPOSE OF THE AMTRAK ACT, THE HOUSE REPORT, REFERRING TO
A COMMENT BY THE SECRETARY OF TRANSPORTATION, NOTED THAT (IN ORDER TO
ACHIEVE ECONOMIC VIABILITY IN A BASIC RAIL PASSENGER SYSTEM, ... THERE
WILL HAVE TO BE A 'PARING OF UNECONOMIC ROUTES.'"  H. R. REP. NO. 91 -
1580, P. 3 (1970).  THUS, CONGRESS CONCLUDED THAT "A RATIONAL REDUCTION
OF PRESENT SERVICE WILL BE REQUIRED IN ORDER TO SAVE ANY PASSENGER
SERVICE."  IBID.  (EMPHASIS IN ORIGINAL).  IN 404 OF THE ACT, CONGRESS
PROVIDED AN EFFICIENT MEANS WHEREBY AMTRAK COULD ELIMINATE UNECONOMIC
ROUTES (OTHER THAN A "BASIC SYSTEM" DESIGNATED AND FROM TIME TO TIME
AUGMENTED BY THE SECRETARY OF TRANSPORTATION) WITHOUT THE NECESSITY OF
SUBMITTING TO THE TIME-CONSUMING PROCEEDINGS OF STATE REGULATORY BODIES
OR THE INTERSTATE COMMERCE COMMISSION THAT HAD BEEN REQUIRED BEFORE THE
ACT'S PASSAGE.  /8/  IF, HOWEVER, 307(A) WERE TO BE INTERPRETED AS
PERMITTING PRIVATE LAWSUITS TO PREVENT THE DISCONTINUANCE OF PASSENGER
TRAINS, THEN THE ONLY EFFECT OF THE ACT IN THIS REGARD WOULD HAVE BEEN
TO SUBSTITUTE THE FEDERAL DISTRICT COURTS FOR THE STATE OR FEDERAL
ADMINISTRATIVE BODIES FORMERLY REQUIRED TO PASS UPON PROPOSED
DISCONTINUANCES.  /9/ 

IF THE RESPONDENT'S VIEW OF THE ACT WERE TO PREVAIL, A PRIVATE
PLAINTIFF COULD SECURE INJUNCTIVE PROCESS TO PREVENT THE DISCONTINUANCE
OF AN "UNECONOMIC" PASSENGER TRAIN PENDENTE LITE, WHICH WOULD FORCE
AMTRAK TO CONTINUE THE TRAIN'S OPERATION AND INCUR THE RESULTING
DEFICITS AND DISLOCATIONS WITHIN ITS ENTIRE SYSTEM WHILE THE COURT
CONSIDERED THE PROPRIETY OF THE PROPOSED DISCONTINUANCE.  /10/  SINCE
SUITS COULD BE BROUGHT IN ANY DISTRICT THROUGH WHICH AMTRAK TRAINS PASS
AND SINCE THERE WOULD BE A MYRIAD OF POSSIBLE PLAINTIFFS, THE POTENTIAL
WOULD EXIST FOR A BARRAGE OF LAWSUITS THAT, EITHER INDIVIDUALLY OR
COLLECTIVELY, COULD FRUSTRATE OR SEVERELY DELAY ANY PROPOSED PASSENGER
TRAIN DISCONTINUANCE.  EVEN IF ONE COURT EVENTUALLY UPHELD THE
DISCONTINUANCE, ITS JUDGMENT WOULD NOT CONTROL A SUIT BROUGHT IN
ANOTHER DISTRICT AND WOULD NOT, IN ANY EVENT, OBVIATE THE LOSS IN THE
INTERIM OF SUBSTANTIAL SUMS AND THE DIVERSION OF ROLLING STOCK FROM
MORE HEAVILY TRAVELED ROUTES.  THIS WOULD COMPLETELY UNDERCUT THE
EFFICIENT APPARATUS THAT CONGRESS SOUGHT TO PROVIDE FOR AMTRAK TO USE
IN THE "PARING OF UNECONOMIC ROUTES."  IT WOULD ALSO PRODUCE THE
ANOMALOUS RESULT OF A DISCONTINUANCE PROCEDURE UNDER THE ACT
CONSIDERABLY LESS EFFICIENT THAN THAT WHICH EXISTED BEFORE, SINCE THERE
WOULD NO LONGER BE A SINGLE FORUM THAT COULD FINALLY DETERMINE THE
PERMISSIBILITY OF A PROPOSED DISCONTINUANCE.  IN THE PLACE OF THE STATE
OR FEDERAL REGULATORY BODIES, THE CONGRESS WOULD HAVE SUBSTITUTED ANY
AND ALL FEDERAL DISTRICT COURTS THROUGH WHOSE JURISDICTIONS AN AMTRAK
TRAIN MIGHT RUN. 

CONGRESS CLEARLY DID NOT INTEND TO REPLACE THE DELAYS OFTEN INHERENT
IN THE ADMINISTRATIVE PROCEEDINGS CONTEMPLATED BY 13A OF THE INTERSTATE
COMMERCE ACT WITH THE PROBABLY EVEN GREATER DELAYS INHERENT IN MULTIPLE
FEDERAL COURT PROCEEDINGS.  /11/  INSTEAD, IT CLOTHED THE ATTORNEY
GENERAL WITH THE EXCLUSIVE (EXCEPT IN CASES INVOLVING LABOR AGREEMENTS)
AUTHORITY TO POLICE THE AMTRAK SYSTEM AND TO ENFORCE THE VARIOUS DUTIES
AND OBLIGATIONS IMPOSED BY THE ACT.  IN LIGHT OF THE SUBSTANTIAL
SCRUTINY TO WHICH AMTRAK OPERATIONS ARE SUBJECT BY BOTH CONGRESS AND
THE EXECUTIVE, CONGRESS COULD QUITE REATIONALLY SUPPOSE THAT THIS
REMEDY WILL EFFECTIVELY PREVENT AND CORRECT ANY AMTRAK BREACHES OF
OBLIGATIONS UNDER THE ACT.  /12/ 

FOR THESE REASONS WE HOLD THAT 307(A) PROVIDES EXCLUSIVE REMEDIES
FOR BREACHES OF ANY DUTIES OR OBLIGATIONS IMPOSED BY THE AMTRAK ACT,
AND THAT NO ADDITIONAL PRIVATE CAUSE OF ACTION TO ENFORCE COMPLIANCE
WITH THE ACT'S PROVISIONS CAN PROPERLY BE INFERRED.  /13/  ACCORDINGLY,
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  SECTION 401 OF THE ACT, 45 U.S.C. 561, AUTHORIZES AMTRAK TO
CONTRACT WITH ANY RAILROAD TO UNDERTAKE ITS ENTIRE RESPONSIBILITY FOR
INTERCITY RAIL PASSENGER SERVICE.  UPON ENTERING SUCH A CONTRACT, A
RAILROAD CAN DISCONTINUE ANY INTERCITY PASSENGER TRAIN BY MERELY FILING
A 30-DAY NOTICE OF INTENT WITH THE INTERSTATE COMMERCE COMMISSION, IN
ACCORDANCE WITH THE NOTICE REQUIREMENTS OF 13A OF THE INTERSTATE
COMMERCE ACT, 49 U.S.C. 13A. 

/2/ EXCEPT IN CERTAIN LIMITED SITUATIONS NOT HERE PERTINENT, 45
U.S.C. 564(B)(2) AUTHORIZES AMTRAK TO DISCONTINUE ANY PASSENGER
SERVICE, OTHER THAN THAT CONTAINED IN A "BASIC SYSTEM" DESIGNATED BY
THE SECRETARY OF TRANSPORTATION, UPON ITS OWN INITIATIVE. 

/3/  THE RESPONDENT'S POSITION ON THE MERITS IS BASED ON THE FACT
THAT THE CENTRAL OF GEORGIA RAILWAY CO., WHICH ENTERED A CONTRACT WITH
AMTRAK, IS A SUBSIDIARY OF SOUTHERN RAILWAY CO., WHICH DID NOT ENTER A
CONTRACT WITH AMTRAK.  THE RESPONDENT CONTENDS THAT THE CONTRACT
BETWEEN AMTRAK AND CENTRAL DOES NOT COMPLY WITH 401(A)(1) OF THE AMTRAK
ACT BECAUSE SOUTHERN, THE PARENT COMPANY, HAS NOT CONTRACTED WITH
AMTRAK.  SINCE 401(A)(1) AUTHORIZES ONLY A CONTRACT FOR AMTRAK TO
UNDERTAKE A RAILROAD'S ENTIRE RESPONSIBILITY FOR INTERCITY RAIL
PASSENGER SERVICE, THE RESPONDENT CONTENDS THAT SOUTHERN CANNOT RELIEVE
ITSELF ON ONLY PART OF THIS RESPONSIBILITY BY ALLOWING A SUBSIDIARY TO
CONTRACT WITH AMTRAK WHILE DECLINING ITSELF TO DO SO.  ACCORDINGLY, THE
RESPONDENT ARGUES THAT SOUTHERN AND CENTRAL, HAVING ENTERED NO
STATUTORILY AUTHORIZED CONTRACT WITH AMTRAK, ARE PROHIBITED BY 404(A),
45 U.S.C. 564(A), FROM DISCONTINUING ANY PASSENGER TRAIN BEFORE JANUARY
1, 1975. 

/4/  THE DECISION OF THE DISTRICT COURT IS UNREPORTED.  THE OPINION
OF THE COURT OF APPEALS APPEARS AT 154 U.S. APP. D. C. 214, 475 F.2D
325 (1973). 

/5/  SUPPLEMENTAL HEARINGS ON H. R. 17849 AND S. 3706 BEFORE THE
SUBCOMMITTEE ON TRANSPORTATION AND AERONAUTICS OF THE HOUSE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE, 91ST CONG., 2D SESS., SER.  91 -
62, P. 44 (1970). 

/6/  ALTHOUGH THE SECRETARY DID NOT OPPOSE THIS AMENDMENT, HE
EXPRESSED THE OPINION THAT IT MIGHT BE UNNECESSARY TO MAKE SANCTIONS
APPLICABLE TO ANY RAILROAD IN LIGHT OF OTHER, EXISTING STATUTES AND IN
LIGHT OF AMTRAK'S AMENABILITY TO SUIT UNDER 307(A) AS IT WAS THEN
WRITTEN. 

/7/  SEE, E.G., 45 U.S.C. 521, 522, 548(C), 563(A), 602, 621, AND
645 (1970 ED. AND SUPP. II). 

/8/  SEE N. 2, SUPRA. 

/9/  BEFORE 1958, RAILROADS DESIRING TO DISCONTINUE UNECONOMIC
PASSENGER ROUTES WERE REQUIRED TO SECURE THE PERMISSION OF STATE
REGULATORY COMMISSIONS.  IN 1958, IN AN EFFORT TO REDUCE LOSSES ON
PASSENGER TRAIN OPERATIONS, CONGRESS ENACTED 13A OF THE INTERSTATE
COMMERCE ACT, 49 U.S.C. 13A, WHICH GAVE THE RAILROADS THE OPTION OF
BYPASSING STATE AGENCIES AND PETITIONING THE INTERSTATE COMMERCE
COMMISSION FOR PERMISSION TO DISCONTINUE PASSENGER TRAINS.  UNDER 13A,
AFTER THE RAILROAD HAS FILED A NOTICE OF DISCONTINUANCE WITH THE
COMMISSION, AN AGGRIEVED PERSON MAY FILE A COMPLAINT.  EITHER UPON SUCH
COMPLAINT OR ON ITS OWN INITIATIVE, THE COMMISSION MAY INSTITUTE AN
INVESTIGATION OF THE PROPOSED DISCONTINUANCE.  IF THE COMMISSION DOES
BEGIN AN INVESTIGATION, IT MAY DELAY THE DISCONTINUANCE FOR AS LONG AS
FOUR MONTHS.  IF IT FINDS THAT THE DISCONTINUANCE IS CONTRARY TO THE
PUBLIC INTEREST, THE COMMISSION MAY REQUIRE THE CONTINUANCE OF THE
ROUTE FOR A PERIOD OF ONE YEAR.  ORDERS APPROVING OR DISAPPROVING
PROPOSED DISCONTINUANCES ARE SUBJECT TO JUDICIAL REVIEW.  SEE, E.G.,
SOUTHERN R. CO. V. NORTH CAROLINA, 376 U.S. 93 (1964).  IF, ON THE
OTHER HAND, THE COMMISSION DECIDES THAT THE DISCONTINUANCE IS CLEARLY
PERMISSIBLE UNDER 13A OF THE ACT, AND DECIDES NOT TO CONDUCT AN
INVESTIGATION OR DECIDES TO TERMINATE AN INVESTIGATION ALREADY BEGUN,
AN AGGRIEVED PERSON HAS NO RECOURSE TO THE COURTS TO REVIEW THE
COMMISSION'S DECISION.  NEW JERSEY V. UNITED STATES, 168 F.SUPP.  324
(NJ 1958), AFF'D, 359 U.S. 27 (1959); CITY OF CHICAGO V. UNITED STATES,
396 U.S. 162 (1969). 

THUS, IF THE COMMISSION TAKES NO ACTION ON A COMPLAINT BY A
PASSENGER, UNDER 13A THERE IS NO RECOURSE TO THE COURTS.  ONLY IF THE
COMMISSION CONDUCTS AN INVESTIGATION AND ISSUES AN ORDER, A PROCEDURE
THAT CONGRESS EXPLICITLY ELIMINATED FOR ROUTES SUBJECT TO THE AMTRAK
ACT BUT OUTSIDE THE BASIC SYSTEM, IS JUDICIAL REVIEW AVAILABLE.  IT
THUS APPEARS THAT THE AMTRAK ACT HAS IN EFFECT SUBSTITUTED, IN MATTERS
COVERED BY THE STATUTE, THE SCRUTINY OF THE ATTORNEY GENERAL FOR THAT
OF THE COMMISSION UNDER 13A.  JUST AS AN AGGRIEVED PASSENGER HAS NO
ACCESS TO THE COURTS WHEN THE COMMISSION, UNDER 13A, TAKES NO ACTION ON
A COMPLAINT, SO LIKEWISE UNDER THE AMTRAK ACT AN AGGRIEVED PASSENGER
HAS NO ACCESS TO THE COURTS WHEN THE ATTORNEY GENERAL HAS REFUSED TO
OBJECT TO A PROPOSED PASSENGER TRAIN DISCONTINUANCE BY BRINGING AN
ACTION UNDER 307(A) TO ENJOIN IT.  THERE IS NO REASON APPARENT FROM THE
AMTRAK ACT, ITS LEGISLATIVE HISTORY, OR ITS UNDERLYING PURPOSES TO
THINK THAT CONGRESS INTENDED TO CREATE A PRIVATE REMEDY SUBSTANTIALLY
EQUIVALENT TO ONE THAT HAD BEEN ELIMINATED UNDER PRE-EXISTING FEDERAL
LAW. 

/10/  THAT THIS IS A VERY REAL POSSIBILITY IS DEMONSTRATED BY
AMTRAK'S EXPERIENCE IN WOOD V. NATIONAL RAILROAD PASSENGER CORP., 341
F.SUPP.  908 (CONN. 1972), WHERE THE COURT GRANTED AND THEN EXTENDED A
TEMPORARY RESTRAINING ORDER WHILE IT CONSIDERED THE MERITS OF A
CHALLENGE TO A PROPOSED DISCONTINUANCE.  THE RESTRAINING ORDER WAS
DISSOLVED WHEN AMTRAK PREVAILED ON THE MERITS. 

/11/  THE AMTRAK ACT WAS IN SIGNIFICANT PART A RESPONSE TO
CONGRESSIONAL DISSATISFACTION WITH THE ADMINISTRATIVE DELAYS INHERENT
IN PASSENGER ROUTE DISCONTINUANCES UNDER EXISTING LEGISLATION.  AS THE
SENATE REPORT OBSERVED, "TRAINS WHICH CLEARLY SERVED NO USEFUL PURPOSE
WERE EITHER REQUIRED TO BE KEPT IN OPERATION OR WERE ALLOWED TO BE
DISCONTINUED ONLY AFTER PROTRACTED ADMINISTRATIVE AND JUDICIAL
PROCEEDINGS."  S. REP. NO. 91 - 765, P. 2 (1970).  IT IS EVIDENT THAT
CONGRESS INTENDED TO ELIMINATE THE POSSIBILITY OF SUCH "PROTRACTED
PROCEEDINGS" FROM THE PROCEDURES IT CREATED IN 404 OF THE ACT FOR
EFFICIENT DISCONTINUANCE OF UNECONOMIC ROUTES. 

/12/  SEE 45 U.S.C. 644, AUTHORIZING THE COMPTROLLER GENERAL TO
AUDIT AMTRAK'S BOOKS AND RECORDS, AND 548, REQUIRING PERIODIC REPORTS
TO CONGRESS AND TO THE PRESIDENT CONCERNING AMTRAK'S OPERATIONS. 

/13/  SINCE WE HOLD THAT NO RIGHT OF ACTION EXISTS, QUESTIONS OF
STANDING AND JURISDICTION BECOME IMMATERIAL.  IN FINDING THAT THE
RESPONDENT HAD STANDING, THE COURT OF APPEALS RELIED PRIMARILY UPON
DATA PROCCESSING SERVICE V. CAMP, 397 U.S. 150 (1970).  IN FINDING
JURISDICTION, THE COURT RELIED UPON 28 U.S.C. 1337. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, CONCURRING IN THE RESULT. 

ALTHOUGH I AM IN AGREEMENT THAT THE LEGISLATIVE HISTORY OF THE
AMTRAK ACT PROVIDES A CLEAR AND CONVINCING EXPRESSION OF CONGRESS'
INTENT TO PRECLUDE ANY EXCEPT THE ATTORNEY GENERAL AND IN CERTAIN
SITUATIONS AN EMPLOYEE OR HIS DULY AUTHORIZED REPRESENTATIVE FROM
MAINTAINING AN ACTION UNDER THE ACT AGAINST PETITIONERS, I WOULD LEAVE
OPEN THE QUESTION WHETHER A PRIVATE SUIT FOR MANDAMUS UNDER 28 U.S.C.
1361 MIGHT BE MAINTAINED AGAINST THE ATTORNEY GENERAL IF HIS REFUSAL TO
ACT UNDER 307--EVEN THOUGH WITHIN THE LETTER OF HIS AUTHORITY--WENT
"BEYOND ANY RATIONAL EXERCISE OF DISCRETION."  UNITED STATES EX REL.
SCHONBRUN V. COMMANDING OFFICER, ARMED FORCES, 403 F.2D 371, 374 (CA2
1968); SEE BYSE & FIOCCA, SECTION 1361 OF THE MANDAMUS AND VENUE ACT OF
1962 AND "NONSTATUTORY" JUDICIAL REVIEW OF FEDERAL ADMINISTRATIVE
ACTION, 81 HARV. L. REV. 308, 333 - 335 (1967). 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE RAIL PASSENGER SERVICE ACT OF 1970, 45 U.S.C. 501 ET SEQ.,
AUTHORIZED THE CREATION OF AMTRAK TO PROVIDE INTERCITY RAIL PASSAGE. 
WITH "THE EXPECTATION THAT THE RENDERING OF SUCH (RAIL) SERVICE ALONG
CERTAIN CORRIDORS (COULD) BE MADE A PROFITABLE COMMERCIAL UNDERTAKING,"
THE ACT ESTABLISHED AMTRAK AS A PRIVATE-FOR-PROFIT CORPORATION.  45
U.S.C. 541; H. R. REP. NO. 91 - 1580, P. 1 (1970).  AMTRAK HAS UNTIL
JANUARY 1, 1975, TO TENDER A CONTRACT TO A RAILROAD TO RELEASE THE
LATTER OF ITS ENTIRE RESPONSIBILITY FOR THE PROVISION OF INTERCITY RAIL
PASSENGER SERVICE.  45 U.S.C. 564(A).  UNLESS A RAILROAD HAS A CONTRACT
WITH AMTRAK TO RENDER THE SERVICE, IT MAY NOT DISCONTINUE INTERCITY
PASSENGER SERVICE PRIOR TO JANUARY 1, 1975, "THE PROVISIONS OF ANY
OTHER ACT, THE LAWS OR CONSTITUTION OF ANY STATE, OR THE DECISION OR
ORDER OF, OR THE PENDENCY OF ANY PROCEEDING BEFORE, A FEDERAL OR STATE
COURT, AGENCY, OR AUTHORITY TO THE CONTRARY NOTWITHSTANDING."  IBID.
THOSE INTERCITY SERVICES ARE NOT YET A PART OF "THE BASIC SYSTEM" PUT
TOGETHER BY AMTRAK, S SYSTEM WHICH BY 202 OF THE ACT IS UNIQUE IN THE
SENSE THAT IT "SHALL NOT BE REVIEWABLE IN ANY COURT."  /1/  45 U.S.C.
522. 

OUR PROBLEM CONCERNS NOT "THE BASIC SYSTEM" CREATED BY AMTRAK, BUT
WHAT WERE CALLED ON ORAL ARGUMENT THE "EXCESS" LINES THAT, ABSENT A
CONTRACT WITH AMTRAK, ARE UNDER A CONGRESSIONAL MANDATE NOT TO
DISCONTINUE "ANY INTERCITY PASSENGER TRAIN WHATSOEVER PRIOR TO JANUARY
1, 1975."  45 U.S.C. 564(A). 

THE COURT PHRASES THE QUESTION IN TERMS OF WHETHER A "RIGHT OF
ACTION"  EXISTS, SAYING THAT NO QUESTION OF "STANDING" OR
"JURISDICTION" IS PRESENTED.  WHATEVER THE MERITS OF THE DISTINCTION
BETWEEN THESE THREE CONCEPTS MAY BE IN SOME SITUATIONS, THE DIFFERENCE
HERE IS ONLY A MATTER OF SEMANTICS.  THE DISTRICT COURT DISMISSED THE
CAUSE FOR LACK OF STANDING."  THE COURT OF APPEALS REVERSED, RULING
THAT THERE WAS "STANDING."  THE PARTIES ARGUE THE CASE ON THE BASIS OF
"STANDING."  EVEN THE SOLICITOR GENERAL WHO APPEARED AS AMICUS CURIAE
IN SUPPORT OF GRANTING THE PETITION FOR CERTIORARI CONCEIVES OF THE
ISSUE IN TERMS OF "STANDING."  BY THE COURT'S OWN ADMISSION THIS IS NOT
A CASE WHERE ALL JUDICIAL REVIEW IS FORECLOSED.  FOR 307(A), 45 U.S.C.
547(A), DOES CREATE A CAUSE OF ACTION.  MAY THAT CAUSE OF ACTION BE
ENFORCED BY PASSENGERS OR ONLY BY THE ATTORNEY GENERAL OR BY INDIVIDUAL
EMPLOYEES OR RAILROAD UNIONS?  STANDING OF PASSENGERS TO SUE OR THE
EXISTENCE OF A CAUSE OF ACTION IN PASSENGERS IS IDENTICAL IN THAT
POSTURE OF THE CASE. 

WHATEVER THE SEMANTICS, THE QUESTION IS WHETHER RESPONDENT, NATIONAL
ASSOCIATION OF RAILROAD PASSENGERS, A NATIONAL ORGANIZATION OF RAILROAD
PATRONS, MAY BRING THIS ACTION TO ENJOIN THE DISCONTINUANCE BY CENTRAL
OF GEORGIA RAILWAY CO.  /2/  OF PASSENGER TRAINS BETWEEN SAVANNAH AND
ATLANTA, GEORGIA, AND BETWEEN ALBANY, GEORGIA, AND BIRMINGHAM,
ALABAMA. 

UNITED STATES AND EMPLOYEES UNDER LABOR AGREEMENTS THE POWER TO OBTAIN
FROM A DISTRICT COURT EQUITABLE RELIEF AGAINST EITHER AMTRAK OR ANY
RAILROAD ACTING IN VIOLATION OF THE ACT.  /3/  PETITIONERS ARGUE THAT
307(A) RESTRICTS SUITS TO THE ATTORNEY GENERAL AND TO EMPLOYEES.  THAT
SEEMS A STRAINED CONSTRUCTION.  THE MOST I THINK THAT CAN BE DRAWN FROM
THE WORDS OF 307(A) AND THE LEGISLATIVE HISTORY IS THAT CONGRESS WANTED
TO MAKE SURE THAT SOME FEDERAL AGENCY HAD SOME OVERSIGHT OVER THE
PUBLIC ACTIVITY OF THIS PRIVATE-FOR-PROFIT CORPORATION.  HENCE THE
GRANT OF STANDING, OR CAUSE OF ACTION, TO THE ATTORNEY GENERAL. 
MOREOVER, IT TOOK OUT OF THE PENUMBRA OF AGGRIEVED PERSONS, EMPLOYEES
HAVING RIGHTS UNDER COLLECTIVE AGREEMENTS.  CONGRESS LEFT UNTOUCHED 28
U.S.C. 1337 WHICH PROVIDES THAT "(THE DISTRICT COURTS SHALL HAVE
ORIGINAL JURISDICTION OF ANY CIVIL ACTION OR PROCEEDING ARISING UNDER
ANY ACT OF CONGRESS REGULATING COMMERCE...."     AGGRIEVED PASSENGERS
ARE THE MOST OBVIOUS COMPLAINANTS WHEN IT COMES TO SAVING PASSENGER
TRAINS FROM EXTINCTION.  CERTAINLY PASSENGERS OF DISCONTINUED TRAINS
SUFFER INJURY IN FACT AND ARE WITHIN THE ZONE OF INTERESTS PROTECTED BY
THE AMTRAK ACT AND THUS SATISFY TWO OF THE THREE REQUIREMENTS OF DATA
PROCESSING SERVICE V. CAMP, 397 U.S. 150.  AS TO THE THIRD--THAT
JUDICIAL REVIEW HAS NOT BEEN PRECLUDED--IT SEEMS AS PLAIN TO ME AS IT
DID TO THE COURT OF APPEALS.  WHERE AS HERE THERE IS NO EXPRESS DENIAL
OF JUDICIAL REVIEW, THE TEST IS WHETHER "NONREVIEWABILITY CAN FAIRLY BE
INFERRED."  BARLOW V. COLLINS, 397 U.S. 159, 166.  AND, SINCE JUDICIAL
REVIEW "IS THE RULE, AND NONREVIEWABILITY AN EXCEPTION WHICH MUST BE
DEMONSTRATED," PRECLUSION OF JUDICIAL REVIEW "IS NOT LIGHTLY TO BE
INFERRED."  IBID.  "(ONLY UPON A SHOWING OF 'CLEAR AND CONVINCING
EVIDENCE' OF A CONTRARY LEGISLATIVE INTENT SHOULD THE COURTS RESTRICT
ACCESS TO JUDICIAL REVIEW."  ABBOTT LABORATORIES V. GARDNER, 387 U.S.
136, 141. 

THE GRANT OF JURISDICTION TO THE ATTORNEY GENERAL TO SCREEN STATE
VOTING RIGHT PROCEDURES THAT MIGHT HAVE A DISCRIMINATORY EFFECT DID
NOT, WE HELD IN ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544,
DEPRIVE INDIVIDUAL CITIZENS OF STANDING TO SUE. 

    "THE ACHIEVEMENT OF THE ACT'S LAUDABLE GOAL COULD BE SEVERELY

  HAMPERED, HOWEVER, IF EACH CITIZEN WERE REQUIRED TO DEPEND SOLELY

  ON LITIGATION INSTITUTED AT THE DESCRETION OF THE ATTORNEY

  GENERAL.  FOR EXAMPLE, THE PROVISIONS OF THE ACT EXTEND TO STATES

  AND THE SUBDIVISIONS THEREOF.  THE ATTORNEY GENERAL HAS A LIMITED

  STAFF AND OFTEN MIGHT BE UNABLE TO UNCOVER QUICKLY NEW

  REGULATIONS AND ENACTMENTS PASSED AT THE VARYING LEVELS OF STATE

  GOVERNMENT.  IT IS CONSISTENT WITH THE BROAD PURPOSE OF THE ACT

  TO ALLOW THE INDIVIDUAL CITIZEN STANDING TO INSURE THAT HIS CITY

  OR COUNTY GOVERNMENT COMPLIES WITH THE 5 APPROVAL REQUIREMENTS." 

  ID., AT 556 - 557 (FOOTNOTES OMITTED). 

THE ATTORNEY GENERAL IS A BUSY PERSON; AND IT IS NOT CREDIBLE TO
BELIEVE THAT A GRANT OF POWER TO HIM TO SUE PRECLUDES THE STANDING OF
PASSENGERS WHO ARE THE PRIME CASUALTIES WHEN PASSENGER SERVICE IS
DISCONTINUED. 

EACH CASE INVOLVING THE AVAILABILITY OF JUDICIAL REVIEW STANDS ON
ITS OWN FEET.  IN SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320
U.S. 297, WE DENIED JUDICIAL REIVEW SINCE THE COLLECTIVE-BARGAINING
RIGHT WAS BEING PROTECTED BY A NEUTRAL AGENCY, THE NATIONAL MEDIATION
BOARD.  THERE IS NO SUCH BODY STANDING BETWEEN THE PASSENGERS AND
AMTRAK.  AMTRAK IS A PRIVATE-FOR-PROFIT CORPORATION WHICH IS ONLY
CONSTRUING ITS OWN ENABLING ACT.  IF PASSENGERS ARE DENIED STANDING TO
SUE, AMTRAK IS LARGELY ON ITS OWN.  ESPECIALLY IS THIS SO IN LIGHT OF
THE ATTORNEY GENERAL'S OWN VIEW THAT THE GRANT OF POWER IN 307(A) IS
LIMITED AND DOES NOT AUTHORIZE HIM TO SEEK CORRECTION OF ALL VIOLATIONS
OF THE ACT.  /4/  SO FAR AS I CAN ASCERTAIN THE ATTORNEY GENERAL HAS
NOT INTRUDED IN ANY CASE.  /5/  TO LEAVE THE COMPLETE OVERSIGHT TO
EMPLOYEES IS TO MAKE NONREVIEWABLE MOST OF AMTRAK'S DECISIONS. 
CONGRESS SPECIFICALLY DID THAT WHEN IT CAME TO "THE BASIC GROUP" OF
CARRIERS.  BUT ITS MANDATE NOT TO DISCONTINUE PASSENGER SERVICE UNTIL
JANURAY 1, 1975, EXCEPT ON A CONTRACT WITH AMTRAK IS CLEAR.  IF IN THAT
INTERIM THERE CAN BE NO POLICING OF THE ACT, WE HAVE GIVEN A
CORPORATION WHICH IS PRIVATE AND OPERATING FOR A PROFIT, AN
ADMINISTRATIVE ABSOLUTION WE SELDOM HAVE BEEN WILLING TO CONCLUDE THAT
CONGRESS HAS BESTOWED EVEN ON FEDERAL AGENCIES.  I CANNOT BELIEVE THE
CONGRESS HAD ANY SUCH PURPOSE. 

WE DEAL HERE WITH A FEDERAL CAUSE OF ACTION AND IT IS THE JUDICIAL
TRADITION "FOR FEDERAL COURTS TO FASHION FEDERAL LAW WHERE FEDERAL
RIGHTS ARE CONCERNED."  TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448,
457.  THE FACT THAT A PRIVATE SUIT TO ENFORCE A FEDERAL LAW IS NOT
SPECIFICALLY SANCTIONED BY CONGRESS SELDOM MEANS THAT STANDING TO SUE
IS FORECLOSED.  THE PURPOSE OF THE AMTRAK ACT WAS TO PRESERVE AND
IMPROVE TRAIN SERVICE.  THE OBJECT WAS NOT TO PROTECT TRAINS PER SE NOR
TO CREATE AN IN REM ACTION.  THE PURPOSE, WHICH THE COURT IN ITS
DEDICATION TO LEGALISMS OVERLOOKS, WAS TO PROTECT THE PEOPLE WHO RIDE
THE TRAINS.  THE CASE IS VERY MUCH ON ALL FOURS WITH J. I. CASE CO. V.
BORAK, 377 U.S. 426, WHERE CONGRESS MADE IT UNLAWFUL TO SOLICIT PROXIES
IN VIOLATION OF RULES PRESCRIBED BY THE SECURITIES AND EXCHANGE
COMMISSION.  NO STANDING, NO CAUSE OF ACTION WAS EXPRESSLY GIVEN
STOCKHOLDERS WHO MIGHT SUFFER FROM CORPORATE ACTION PURSUANT TO A
DECEPTIVE PROXY SOLICITATION.  YET WE HELD THAT THE COMMISSION WAS NOT
GRANTED AN EXCLUSIVE ROLE TO PLAY IN POLICING THE AREA: 

     "PRIVATE ENFORCEMENT OF THE PROXY RULES PROVIDES A NECESSARY

SUPPLEMENT TO COMMISSION ACTION.  AS IN ANTITRUST TREBLE DAMAGE

  LITIGATION, THE POSSIBILITY OF CIVIL DAMAGES OR INJUNCTIVE RELIEF

  SERVES AS A MOST EFFECTIVE WEAPON IN THE ENFORCEMENT OF THE PROXY

  REQUIREMENTS.  THE COMMISSION ADVISES THAT IT EXAMINES OVER 2,000

  PROXY STATEMENTS ANNUALLY AND EACH OF THEM MUST NECESSARILY BE

  EXPEDITED.  TIME DOES NOT PERMIT AN INDEPENDENT EXAMINATION OF

  THE FACTS SET OUT IN THE PROXY MATERIAL AND THIS RESULTS IN THE

  COMMISSION'S ACCEPTANCE OF THE REPRESENTATIONS CONTAINED THEREIN

  AT THEIR FACE VALUE, UNLESS CONTRARY TO OTHER MATERIAL ON FILE

  WITH IT."  ID., AT 432. 

THE COURT IS IN THE MOOD TO CLOSE ALL POSSIBLE DOORS TO JUDICIAL
REVIEW SO AS TO LET THE EXISTING BUREAUCRACIES ROLL ON TO THEIR GOAL OF
ADMINISTRATIVE ABSOLUTISM.  WHEN THE VICTIMS OF ADMINISTRATIVE VENALITY
OR ADMINISTRATIVE CAPRICE ARE NOT ALLOWED EVEN TO BE HEARD, THE ABUSES
OF THE MONSTERS WE HAVE CREATED WILL BECOME INTOLERABLE.  THE
SEPARATION OF POWERS WAS DESIGNED TO PROVIDE NOT FOR JUDICIAL
SUPREMACY, BUT FOR CHECKS AND BALANCES.  WHEN WE TURN BACK THIS
RESPONDENT, WE TURN BACK PASSENGERS WHO ARE THE VICTIMS OF THE PRESENT
TRANSPORTATION DEBACLE.  THOSE WHO COMPLAIN ARE NOT ADVENTURERS WHO
SEEK PERSONAL AGGRANDIZEMENT AS DO JACKALS WHO HISTORICALLY HAVE
FATTENED ON SOME ECONOMIC DEBACLES.  THE PASSENGERS ARE THE VICTIMS OF
THE TRANSPORTATION CRISIS OUT OF WHICH AMTRAK SEEKS TO MAKE A FORTUNE. 
THESE PASSENGERS SHOULD BE HEARD.  THEY SATISFY THE STRINGENT TEST WE
LAID DOWN IN BAKER V. CARR, 369 U.S. 186; THEY HAVE "SUCH A PERSONAL
STAKE IN THE OUTCOME OF THE CONTROVERSY AS TO ASSURE THAT CONCRETE
ADVERSENESS WHICH SHARPENS THE PRESENTATION OF ISSUES...."  ID., AT
204. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS WHETHER THE
RATIONALIZATION BE BASED ON STANDING, CAUSE OF ACTION, OR
JURISDICTION. 

/1/  AMTRAK MAY ELIMINATE SERVICE WHICH IS PART OF THE "BASIS
SYSTEM"  ONLY BY FILING NOTICE WITH THE ICC IN ACCORDANCE WITH THE PRE
ACT DISCONTINUANCE PROCEDURES CONTAINED IN 49 U.S.C. 13A.  45 U.S.C.
564(B)(3).  RAIL SERVICE WHICH IS UNDERTAKEN BY AMTRAK ON ITS OWN
INITIATIVE BUT WHICH IS NOT PART OF THE BASIC SYSTEM MAY BE
DISCONTINUED AT ANY TIME.  45 U.S.C. 564(B)(2).  EXCESS LINES, HOWEVER,
EVEN THOUGH UNDERTAKEN BY AMTRAK ON ITS OWN INITIATIVE BECOME PART OF
THE BASIC SYSTEM AND THUS SUBJECT TO THE ICC DISCONTINUANCE PROCEDURES
IF OPERATED BY AMTRAK FOR A CONTINUOUS PERIOD OF TWO YEARS.  45 U.S.C.
563(A). 

/2/  CENTRAL IS A SUBSIDIARY OF SOUTHERN RAILWAY CO. WHILE CENTRAL
HAS ENTERED INTO A CONTRACT WITH AMTRAK TO RELIEVE IT OF RESPONISBILITY
FOR ALL INTERCITY PASSENGER SERVICE, SOUTHERN HAS NOT.  WHETHER THAT
FAILURE OF SOUTHERN BARS THE DISCONTINUANCE OF THIS PASSENGER-TRAIN
SERVICE GOES TO THE MERITS OF THE COMPLAINT, WAS NOT PASSED UPON BELOW,
AND HAS NO RELEVANCE TO THE QUESTION OF STANDING TO SUE, THE ONLY ISSUE
BEFORE US. 

/3/  45 U.S.C. 547(A) PROVIDES:  "IF THE CORPORATION OR ANY RAILROAD
ENGAGES IN OR ADHERES TO ANY ACTION, PRACTICE, OR POLICY INCONSISTENT
WITH THE POLICIES AND PURPOSES OF THIS CHAPTER, OBSTRUCTS OR INTERFERES
WITH ANY ACTIVITIES AUTHORIZED BY THIS CHAPTER, REFUSES, FAILS, OR
NEGLECTS TO DISCHARGE ITS DUTIES AND RESPONSIBILITIES UNDER THIS
CHAPTER, OR THREATENS ANY SUCH VIOLATION, OBSTRUCTION, INTERFERENCE,
REFUSAL, FAILURE, OR NEGLECT, THE DISTRICT COURT OF THE UNITED STATES
FOR ANY DISTRICT IN WHICH THE CORPORATION OR OTHER PERSON RESIDES OR
MAY BE FOUND SHALL HAVE JURISDICTION, EXCEPT AS OTHERWISE PROHIBITED BY
LAW, UPON PETITION OF THE ATTORNEY GENERAL OF THE UNITED STATES OR, IN
A CASE INVOLVING A LABOR AGREEMENT, UPON PETITION OF ANY EMPLOYEE
AFFECTED THEREBY, INCLUDING DULY AUTHORIZED EMPLOYEE REPRESENTATIVES,
TO GRANT SUCH EQUITABLE RELIEF AS MAY BE NECESSARY OR APPROPRIATE TO
PREVENT OR TERMINATE ANY VIOLATION, CONDUCT, OR THREAT." 

/4/  IN REFUSING TO BECOME INVOLVED IN THE CASE CONSOLIDATED WITH
THIS ONE IN THE COURT OF APPEALS, THE ATTORNEY GENERAL'S OFFICE
EXPRESSED THE VIEW THAT "THE STATUTORY MANDATE OF SECTION 307(A) (45
U.S.C. 547(A)) DOES NOT GIVE THE ATTORNEY GENERAL THE AUTHORITY TO SUE
FOR A CONSTRUCTION OF THE ACT OR TO ENJOIN A PURELY TECHNICAL
VIOLATION."  LETTER FROM ASSISTANT ATTORNEY GENERAL L. PATRICK GRAY III
TO CONGRESSMAN JOHN SLACK, NOV. 19, 1971, IN BRIEF FOR RESPONDENT 29,
30. 

/5/  AS THE COURT OF APPEALS NOTED, THE PETITIONERS "HAVE BEEN
UNABLE TO REFER US TO A SINGLE INSTANCE IN WHICH THE ATTORNEY GENERAL
HAS EITHER INSTIGATED OR PARTICIPATED IN LITIGATION UNDER THE AMTRAK
ACT, EXCEPT FOR A FEW CASES BROUGHT BY OTHER PARTIES IN WHICH HE
INTERVENED SOLELY TO SUPPORT THE DEFENSE THAT PARTIES OTHER THAN LABOR
AND THE ATTORNEY GENERAL DID NOT HAVE STANDING TO SUE."  POTOMAC
PASSENGERS ASSN. V. CHEASAPEAKE & OHIO R. CO., 154 U.S. APP. D. C. 214,
227, 475 F.2D 325, 338 (1973).  ON ORAL ARGUMENT RESPONDENT INFORMED US
OF TWO INSTANCES IN WHICH IT OBTAINED INJUNCTIVE RELIEF AGAINST RAIL
SERVICE DISCONTINUANCE AFTER THE ATTORNEY GENERAL DECLINED TO ACT. 

E. BARRETT PRETTYMAN, JR., ARGUED THE CAUSE FOR PETITIONERS.  ON THE
BRIEF WERE WILLIAM O. BITTMAN, CURTIS E. VON KANN, AND CHARLES A.
HORSKY. 

GORDON P. MACDOUGALL ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT /1/ 

/1/  PAUL RODGERS AND SUMNER J. KATZ FILED A BRIEF FOR THE NATIONAL
ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :






















UNITED STATES V. CALANDRA, 414 U.S. 338 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 72 - 734.  ARGUED OCTOBER 11, 1973--DECIDED JANUARY 8,

           1974; 465 F.2D 1218, REVERSED. 


    WHEN RESPONDENT'S PLACE OF BUSINESS WAS BEING SEARCHED BY

  FEDERAL AGENTS UNDER A WARRANT ISSUED IN CONNECTION WITH A

  GAMBLING INVESTIGATION AND SPECIFYING THAT THE OBJECT OF THE

  SEARCH WAS TO DISCOVER AND SEIZE BOOKMAKING RECORDS AND WAGERING

  PARAPHERNALIA, ONE AGENT, KNOWING OF A PENDING FEDERAL

  INVESTIGATION OF LOANSHARKING ACTIVITIES, DISCOVERED AND SEIZED A

  SUSPECTED LOANSHARKING RECORD.  SUBSEQUENTLY, A GRAND JURY

  INVESTIGATION LOANSHARKING ACTIVITIES SUBPOENAED RESPONDENT TO

  QUERY HIM ON THE SEIZED EVIDENCE, BUT HE REFUSED TO TESTIFY ON

  FIFTH AMENDMENT GROUNDS.  AFTER THE GOVERNMENT THEN REQUESTED

  TRANSACTIONAL IMMUNITY FOR RESPONDENT, THE DISTRICT COURT GRANTED

  RESPONDENT'S SUPPRESSION MOTION ON THE GROUNDS THAT THE
AFFIDAVIT

  SUPPORTING THE WARRANT WAS INSUFFICIENT AND THAT THE SEARCH

  EXCEEDED THE SCOPE OF THE WARRANT, AND FURTHER ORDERED THAT

  RESPONDENT NEED NOT ANSWER ANY OF THE GRAND JURY'S QUESTIONS

  BASED ON THE SUPPRESSED EVIDENCE.  THE COURT OF APPEALS

  AFFIRMED.  HELD:  A WITNESS SUMMONED TO APPEAR AND TESTIFY BEFORE

  A GRAND JURY MAY NOT REFUSE TO ANSWER QUESTIONS ON THE GROUND

  THAT THEY ARE BASED ON EVIDENCE OBTAINED FROM AN UNLAWFUL SEARCH

  AND SEIZURE.  PP. 342 - 355. 

     (A) THE EXCLUSIONARY RULE, UNDER WHICH EVIDENCE OBTAINED IN

  VIOLATION OF THE FOURTH AMENDMENT OR THE FRUITS OF SUCH EVIDENCE

  CANNOT BE USED IN CRIMINAL PROCEEDING AGAINST THE VICTIM OF THE

  ILLEGAL SEARCH AND SEIZURE, IS A JUDICIALLY CREATED REMEDY

  DESIGNED TO SAFEGUARD FOURTH AMENDMENT RIGHTS GENERALLY THROUGH

ITS DETERRENT EFFECT ON FUTURE UNLAWFUL POLICE CONDUCT, RATHER

  THAN A PERSONAL CONSTITUTIONAL RIGHT OF THE PARTY AGGRIEVED.  PP.

  347 - 348. 

     (B) DESPITE ITS BROAD DETERRENT PURPOSE, THE RULE DOES NOT

  PROSCRIBE THE USE OF ILLEGALLY SEIZED EVIDENCE IN ALL PROCEEDINGS

  OR AGAINST ALL PERSONS, AND ITS APPLICATION HAS BEEN RESTRICTED

  TO THOSE AREAS WHERE ITS REMEDIAL OBJECTIVES ARE THOUGHT MOST

 EFFICACIOUSLY SERVED.  P. 348. 

     (C) ALLOWING A GRAND JURY WITNESS TO INVOKE THE EXCLUSIONARY

  RULE WOULD UNDULY INTERFERE WITH THE EFFECTIVE AND EXPEDITIOUS

  DISCHARGE OF THE GRAND JURY'S DUTIES, AND EXTENDING THE RULE TO

GRAND JURY PROCEEDINGS WOULD ACHIEVE ONLY A SPECULATIVE AND

  MINIMAL ADVANCE IN DETERRING POLICE MISCONDUCT AT THE EXPENSE OF

  SUBSTANTIALLY IMPEDING THE GRAND JURY'S ROLE.  PP. 349 - 352. 

     (D) GRAND JURY QUESTIONS BASED ON EVIDENCE OBTAINED FROM AN

  UNLAWFUL SEARCH AND SEIZURE INVOLVE NO INDEPENDENT GOVERNMENTAL

  INVASION OF PRIVACY, BUT RATHER THE USUAL ABRIDGMENT THEREOF

  COMMON TO ALL GRAND JURY QUESTIONING.  SUCH QUESTIONS ARE ONLY A

  DERIVATIVE USE OF THE PRODUCT OF A PAST UNLAWFUL SEARCH AND

  SEIZURE AND WORK NO NEW FOURTH AMENDMENT WRONG.  PP. 353 - 355. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  BRENNAN,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ.,
JOINED, POST, P. 356. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER A WITNESS SUMMONED TO APPEAR
AND TESTIFY BEFORE A GRAND JURY MAY REFUSE TO ANSWER QUESTIONS ON THE
GROUND THAT THEY ARE BASED ON EVIDENCE OBTAINED FROM AN UNLAWFUL SEARCH
AND SEIZURE.  THE ISSUE IS OF CONSIDERABLE IMPORTANCE TO THE
ADMINISTRATION OF CRIMINAL JUSTICE. 

    I 

ON DECEMBER 11, 1970, FEDERAL AGENTS OBTAINED A WARRANT AUTHORIZING
A SEARCH OF RESPONDENT JOHN CALANDRA'S PLACE OF BUSINESS, THE ROYAL
MACHINE & TOOL CO. IN CLEVELAND, OHIO.  THE WARRANT WAS ISSUED IN
CONNECTION WITH AN EXTENSIVE INVESTIGATION OF SUSPECTED ILLEGAL
GAMBLING OPERATIONS.  IT SPECIFIED THAT THE OBJECT OF THE SEARCH WAS
THE DISCOVERY AND SEIZURE OF BOOKMAKING RECORDS AND WAGERING
PARAPHERNALIA.  A MASTER AFFIDAVIT SUBMITTED IN SUPPORT OF THE
APPLICATION FOR THE WARRANT CONTAINED INFORMATION DERIVED FROM
STATEMENTS BY CONFIDENTIAL INFORMANTS TO THE FEDERAL BUREAU OF
INVESTIGATION (FBI), FROM PHYSICAL SURVEILLANCE CONDUCTED BY FBI
AGENTS, AND FROM COURT-AUTHORIZED ELECTRONIC SURVEILLANCE.  /1/ 

THE ROYAL MACHINE & TOOL CO. OCCUPIES A TWO-STORY BUILDING.  THE
FIRST FLOOR CONSISTS OF ABOUT 13,000 SQUARE FEET, AND HOUSES INDUSTRIAL
MACHINERY AND INVENTORY.  THE SECOND FLOOR CONTAINS A GENERAL OFFICE
AREA OF ABOUT 1,500 SQUARE FEET AND A SMALL OFFICE OCCUPIED BY
CALANDRA, PRESIDENT OF THE COMPANY, AND HIS SECRETARY.  ON DECEMBER 15,
1970, FEDERAL AGENTS EXECUTED THE WARRANT DIRECTED AT CALANDRA'S PLACE
OF BUSINESS AND CONDUCTED A THOROUGH, FOUR-HOUR SEARCH OF THE
PREMISES.  THE RECORD REVEALS THAT THE AGENTS SPENT MORE THAN THREE
HOURS SEARCHING CALANDRA'S OFFICE AND FILES. 

ALTHOUGH THE AGENTS FOUND NO GAMBLING PARAPHERNALIA, ONE DISCOVERED,
AMONG CERTAIN PROMISSORY NOTES, A CARD INDICATING THAT DR. WALTER
LOVELAND HAD BEEN MAKING PERIODIC PAYMENTS TO CALANDRA.  THE AGENT
STATED IN AN AFFIDAVIT THAT HE WAS AWARE THAT THE UNITED STATES
ATTORNEY'S OFFICE FOR THE NORTHERN DISTRICT OF OHIO WAS INVESTIGATING
POSSIBLE VIOLATIONS OF 18 U.S.C. 892, 893, AND 894, DEALING WITH
EXTORTIONATE CREDIT TRANSACTIONS, AND THAT DR. LOVELAND HAD BEEN THE
VICTIM OF A "LOANSHARKING" ENTERPRISE THEN UNDER INVESTIGATION.  THE
AGENT CONCLUDED THAT THE CARD BEARING DR. LOVELAND'S NAME WAS A
LOANSHARKING RECORD AND THEREFORE HAD IT SEIZED ALONG WITH VARIOUS
OTHER ITEMS, INCLUDING BOOKS AND RECORDS OF THE COMPANY, STOCK
CERTIFICATES, AND ADDRESS BOOKS. 

ON MARCH 1, 1971, A SPECIAL GRAND JURY WAS CONVENED IN THE NORTHERN
DISTRICT OF OHIO TO INVESTIGATE POSSIBLE LOANSHARKING ACTIVITIES IN
VIOLATION OF FEDERAL LAWS.  THE GRAND JURY SUBPOENAED CALANDRA IN ORDER
TO ASK HIM QUESTIONS BASED ON THE EVIDENCE SEIZED DURING THE SEARCH OF
HIS PLACE OF BUSINESS ON DECEMBER 15, 1970.  CALANDRA APPEARED BEFORE
THE GRAND JURY ON AUGUST 17, 1971, BUT REFUSED TO TESTIFY, INVOKING HIS
FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.  THE GOVERNMENT
THEN REQUESTED THE DISTRICT COURT TO GRANT CALANDRA TRANSACTIONAL
IMMUNITY PURSUANT TO 18 U.S.C. 2514.  CALANDRA REQUESTED AND RECEIVED A
POSTPONEMENT OF THE HEARING ON THE GOVERNMENTS APPLICATION FOR THE
IMMUNITY ORDER SO THAT HE COULD PREPARE A MOTION TO SUPPRESS THE
EVIDENCE SEIZED IN THE SEARCH. 

CALANDRA LATER MOVED PURSUANT TO FED. RULE CRIM. PROC. 41(E) FOR
SUPPRESSION AND RETURN OF THE SEIZED EVIDENCE ON THE GROUNDS THAT THE
AFFIDAVIT SUPPORTING THE WARRANT WAS INSUFFICIENT AND THAT THE SEARCH
EXCEEDED THE SCOPE OF THE WARRANT.  ON AUGUST 27, THE DISTRICT COURT
HELD A HEARING AT WHICH CALANDRA STIPULATED THAT HE WOULD REFUSE TO
ANSWER QUESTIONS BASED ON THE SEIZED MATERIALS.  ON OCTOBER 1, THE
DISTRICT COURT ENTERED ITS JUDGMENT ORDERING THE EVIDENCE SUPPRESSED
AND RETURNED TO CALANDRA AND FURTHER ORDERING THAT CALANDRA NEED NOT
ANSWER ANY OF THE GRAND JURY'S QUESTIONS BASED ON THE SUPPRESSED
EVIDENCE.  332 F.SUPP.  737 (1971).  THE COURT HELD THAT "DUE
PROCESS...ALLOWS A WITNESS TO LITIGATE THE QUESTION OF WHETHER THE
EVIDENCE WHICH CONSTITUTES THE BASIS FOR THE QUESTIONS ASKED OF HIM
BEFORE THE GRAND JURY HAS BEEN OBTAINED IN A WAY WHICH VIOLATES THE
CONSTITUTIONAL PROTECTION AGAINST UNLAWFUL SEARCH AND SEIZURE."  ID.,
AT 742.  THE COURT FOUND THAT THE SEARCH WARRANT HAD BEEN ISSUED
WITHOUT PROBABLE CAUSE AND THAT THE SEARCH HAD EXCEEDED THE SCOPE OF
THE WARRANT. 

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED, HOLDING THAT
THE DISTRICT COURT HAD PROPERLY ENTERTAINED THE SUPPRESSION MOTION AND
THAT THE EXCLUSIONARY RULE MAY BE INVOKED BY A WITNESS BEFORE THE GRAND
JURY TO BAR QUESTIONING BASED ON EVIDENCE OBTAINED IN AN UNLAWFUL
SEARCH AND SEIZURE.  /2/  465 F.2D 1218 (1972).  THE OFFER TO GRANT
CALANDRA IMMUNITY WAS DEEMED IRRELEVANT.  ID., AT 1221. 

WE GRANTED THE GOVERNMENT'S PETITION FOR CERTIORARI, 410 U.S. 925
(1973).  WE NOW REVERSE. 

        II 

THE INSTITUTION OF THE GRAND JURY IS DEEPLY ROOTED IN ANGLO-AMERICAN
HISTORY.  /3/  IN ENGLAND, THE GRAND JURY SERVED FOR CENTURIES BOTH AS
A BODY OF ACCUSERS SWORN TO DISCOVER AND PRESENT FOR TRIAL PERSONS
SUSPECTED OF CRIMINAL WRONGDOING AND AS A PROTECTOR OF CITZENS AGAINST
ARBITRARY AND OPPRESSIVE GOVERNMENTAL ACTION.  IN THIS COUNTRY THE
FOUNDERS THOUGHT THE GRAND JURY SO ESSENTIAL TO BASIC LIBERTIES THAT
THEY PROVIDED IN THE FIFTH AMENDMENT THAT FEDERAL PROSECUTION FOR
SERIOUS CRIMES CAN ONLY BE INSTITUTED BY "A PRESENTMENT OR INDICTMENT
OF A GRAND JURY."  CF. COSTELLO V. UNITED STATES, 350 U.S. 359, 261 -
362 (1956).  THE GRAND JURY'S HISTORIC FUNCTIONS SURVIVE TO THIS DAY. 
ITS RESPONSIBILITIES CONTINUE TO INCLUDE BOTH THE DETERMINATION WHETHER
THERE IS PROBABLE CAUSE TO BELIEVE A CRIME HAS BEEN COMMITTED AND THE
PROTECTION OF CITIZENS AGAINST UNFOUNDED CRIMINAL PROSECUTIONS. 
BRANZBURG V. HAYES, 408 U.S. 665, 686 - 687 (1972). 

TRADITIONALLY THE GRAND JURY HAS BEEN ACCORDED WIDE LATITUDE TO
INQUIRE INTO VIOLATIONS OF CRIMINAL LAW.  NO JUDGE PRESIDES TO MONITOR
ITS PROCEEDINGS.  IT DELIBERATES IN SECRET AND MAY DETERMINE ALONE THE
COURSE OF ITS INQUIRY.  THE GRAND JURY MAY COMPEL THE PRODUCTION OF
EVIDENCE OR THE TESTIMONY OF WITNESSES AS IT CONSIDERS APPROPRIATE, AND
ITS OPERATION GENERALLY IS UNRESTRAINED BY THE TECHNICAL PROCEDURAL AND
EVIDENTIARY RULES GOVERNING THE CONDUCT OF CRIMINAL TRIALS.  "IT IS A
GRAND INQUEST, A BODY WITH POWERS OF INVESTIGATION AND INQUISITION, THE
SCOPE OF WHOSE INQUIRIES IS NOT TO BE LIMITED NARROWLY BY QUESTIONS OF
PROPRIETY OR FORECASTS OF THE PROBABLE RESULT OF THE INVESTIGATION, OR
BY DOUBTS WHETHER ANY PARTICULAR INDIVIDUAL WILL BE FOUND PROPERLY
SUBJECT TO AN ACCUSATION OF CRIME."  BLAIR V. UNITED STATES, 250 U.S.
273, 282 (1919). 

THE SCOPE OF THE GRAND JURY'S POWERS REFLECTS ITS SPECIAL ROLE IN
INSURING FAIR AND EFFECTIVE LAW ENFORCEMENT.  A GRAND JURY PORCEEDING
IS NOT AN ADVERSARY HEARING IN WHICH THE GUILT OR INNOCENCE OF THE
ACCUSED IS ADJUDICATED.  RATHER, IT IS AN EX PARTE INVESTIGATION TO
DETERMINE WHETHER A CRIME HAS BEEN COMMITTED AND WHETHER CRIMINAL
PROCEEDINGS SHOULD BE INSTITUTED AGAINST ANY PERSON.  THE GRAND JURY'S
INVESTIGATIVE POWER MUST BE BROAD IF ITS PUBLIC RESPONSIBILITY IS
ADEQUATELY TO BE DISCHARGED.  BRANZBURG V. HAYES, SUPRA, AT 700;
COSTELLO V. UNITED STATES, SUPRA, AT 364. 

IN BRANZBURG, THE COURT HAD OCCASION TO REAFFIRM THE IMPORTANCE OF
THE GRAND JURY'S ROLE: 

     "(THE INVESTIGATION OF CRIME BY THE GRAND JURY IMPLEMENTS A

  FUNDAMENTAL GOVERNMENTAL ROLE OF SECURING THE SAFETY OF THE

  PERSON AND PROPERTY OF THE CITIZEN ...."  408 U.S., AT 700. 

     "THE ROLE OF THE GRAND JURY AS AN IMPORTANT INSTRUMENT OF

  EFFECTIVE LAW ENFORCEMENT NECESSARILY INCLUDES AN INVESTIGATORY

  FUNCTION WITH RESPECT TO DETERMINING WHETHER A CRIME HAS BEEN

  COMMITTED AND WHO COMMITTED IT....  'WHEN THE GRAND JURY IS

  PERFORMING ITS INVESTIGATORY FUNCTION INTO A GENERAL PROBLEM AREA

... SOCIETY'S INTEREST IS BEST SERVED BY A THOROUGH AND EXTENSIVE

  INVESTIGATION.'  WOOD V. GEORGIA, 370 U.S. 375, 392 (1962).  A

  GRAND JURY INVESTIGATION 'IS NOT FULLY CARRIED OUT UNTIL EVERY

  AVAILABLE CLUE HAS BEEN RUN DOWN AND ALL WITNESSES EXAMINED IN

  EVERY PROPER WAY TO FIND IF A CRIME HAS BEEN COMMITTED.'  UNITED

  STATES V. STONE, 429 F.2D 138, 140 (CA2 1970).  SUCH AN

  INVESTIGATION MAY BE TRIGGERED BY TIPS, RUMERS, EVIDENCE

  PROFFERED BY THE PROSECUTOR, OR THE PERSONAL KNOWLEDGE OF THE

  GRAND JURORS.  COSTELLO V. UNITED STATES, 350 U.S., AT 362.  IT

  IS ONLY AFTER THE GRAND JURY HAS EXAMINED THE EVIDENCE THAT A

DETERMINATION OF WHETHER THE PROCEEDING WILL RESULT IN AN

INDICTMENT CAN BE MADE ...."  ID., AT 701 - 702. 

THE GRAND JURY'S SOURCES OF INFORMATION ARE WIDELY DRAWN, AND THE
VALIDITY OF AN INDICTMENT IS NOT AFFECTED BY THE CHARACTER OF THE
EVIDENCE CONSIDERED.  THUS, AN INDICTMENT VALID ON ITS FACE IS NOT
SUBJECT TO CHALLENGE ON THE GROUND THAT THE GRAND JURY ACTED ON THE
BASIS OF INADEQUATE OR INCOMPETENT EVIDENCE, COSTELLO V. UNITED STATES,
SUPRA; HOLT V. UNITED STATES, 218 U.S. 245 (1910); OR EVEN ON THE BASIS
OF INFORMATION OBTAINED IN VIOLATION OF A DEFENDANT'S FIFTH AMENDMENT
PRIVILEGE AGAINST SELF-INCRIMINATION, LAWN V. UNITED STATES, 355 U.S.
339 (1958). 

THE POWER OF A FEDERAL COURT TO COMPEL PERSONS TO APPEAR AND TESTIFY
BEFORE A GRAND JURY IS ALSO FIRMLY ESTABLISHED.  KASTIGAR V. UNITED
STATES, 406 U.S. 441 (1972).  THE DUTY TO TESTIFY HAS LONG BEEN
RECOGNIZED AS A BASIC OBLIGATION THAT EVERY CITIZEN OWES HIS
GOVERNMENT.  BLACKMER V. UNITED STATES, 284 U.S. 421, 438 (1932);
UNITED STATES V. BRYAN, 339 U.S. 323, 331 (1950).  IN BRANZBURG V.
HAYES SUPRA, AT 682 AND 688, THE COURT NOTED THAT "(CITIZENS GENERALLY
ARE NOT CONSTITUTIONALLY IMMUNE FROM GRAND JURY SUBPOENAS ..."  AND
THAT "THE LONGSTANDING PRINCIPLE THAT 'THE PUBLIC ... HAS A RIGHT TO
EVERY MAN'S EVIDENCE' ... IS PARTICULARLY APPLICABLE TO GRAND JURY
PROCEEDINGS."  THE DUTY TO TESTIFY MAY ON OCCASION BE BURDENSOME AND
EVEN EMBARRASSING.  IT MAY CAUSE INJURY TO A WITNESS' SOCIAL AND
ECONOMIC STATUS.  YET THE DUTY TO TESTIFY HAS BEEN REGARDED AS "SO
NECESSARY TO THE ADMINISTRATION OF JUSTICE" THAT THE WITNESS' PERSONAL
INTEREST IN PRIVACY MUST YIELD TO THE PUBLIC'S OVERRIDING INTEREST IN
FULL DISCLOSURE.  BLAIR V. UNITED STATES, 250 U.S., AT 281. 
FURTHERMORE, A WITNESS MAY NOT INTERFERE WITH THE COURSE OF THE GRAND
JURY'S INQUIRY.  HE "IS NOT ENTITLED TO URGE OBJECTIONS OF INCOMPETENCY
OR IRRELEVANCY, SUCH AS A PARTY MIGHT RAISE, FOR THIS IS NO CONCERN OF
HIS."  ID., AT 282.  NOR IS HE ENTITLED "TO CHALLENGE THE AUTHORITY OF
THE COURT OR OF THE GRAND JURY" OR "TO SET LIMITS TO THE INVESTIGATION
THAT THE GRAND JURY MAY CONDUCT."  IBID. 

OF COURSE, THE GRAND JURY'S SUBPOENA POWER IS NOT UNLIMITED.  /4/
IT MAY CONSIDER INCOMPETENT EVIDENCE, BUT IT MAY NOT ITSELF VIOLATE A
VALID PRIVILEGE, WHETHER ESTABLISHED BY THE CONSTITUTION, STATUTES, OR
THE COMMON LAW.  BRANZBURG V. HAYES, SUPRA; UNITED STATES V. BRYAN,
SUPRA; BLACKMER V. UNITED STATES SUPRA; 8 J. WIGMORE, EVIDENCE 2290 -
2391 (MCNAUGHTON REV. ED. 1961).  ALTHOUGH, FOR EXAMPLE, AN INDICTMENT
BASED ON EVIDENCE OBTAINED IN VIOLATION OF THE DEFENDANT'S FIFTH
AMENDMENT PRIVILEGE IS NEVERTHELESS VALID, LAWN V. UNITED STATES,
SUPRA, THE GRAND JURY MAY NOT FORCE A WITNESS TO ANSWER QUESTIONS IN
VIOLATION OF THAT CONSTITUTIONAL GUARANTEE.  RATHER, THE GRAND JURY MAY
OVERRIDE A FIFTH AMENDMENT CLAIM ONLY IF THE WITNESS IS GRANTED
IMMUNITY CO-EXTENSIVE WITH THE PRIVILEGE AGAINST SELF-INCRIMINATION. 
KASTIGAR V. UNITED STATES, SUPRA.  SIMILARLY, A GRAND JURY MAY NOT
COMPEL A PERSON TO PRODUCE BOOKS AND PAPERS THAT WOULD INCRIMINATE
HIM.  BOYD V. UNITED STATES, 116 U.S. 616, 633 - 635 (1886).  CF. COUCH
V. UNITED STATES, 409 U.S. 322 (1973).  THE GRAND JURY IS ALSO WITHOUT
POWER TO INVADE A LEGITIMATE PRIVACY INTEREST PROTECTED BY THE FOURTH
AMENDMENT.  A GRAND JURY'S SUBPOENA DUCES TECUM WILL BE DISALLOWED IF
IT IS "FAR TOO SWEEPING IN ITS TERMS TO BE REGARDED AS REASONABLE"
UNDER THE FOURTH AMENDMENT.  HALE V. HENKEL, 201 U.S. 43, 76 (1906). 
JUDICIAL SUPERVISION IS PROPERLY EXERCISED IN SUCH CASES TO PREVENT THE
WRONG BEFORE IT OCCURS. 

        III 

IN THE INSTANT CASE, THE COURT OF APPEALS HELD THAT THE EXCLUSIONARY
RULE OF THE FOURTH AMENDMENT LIMITS THE GRAND JURY'S POWER TO COMPEL A
WITNESS TO ANSWER QUESTIONS BASED ON EVIDENCE OBTAINED FROM A PRIOR
UNLAWFUL SEARCH AND SEIZURE.  THE EXCLUSIONARY RULE WAS ADOPTED TO
EFFECTUATE THE FOURTH AMENDMENT RIGHT OF ALL CITIZENS "TO BE SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE
SEARCHES AND SEIZURES ...."  UNDER THIS RULE, EVIDENCE OBTAINED IN
VIOLATION OF THE FOURTH AMENDMENT CANNOT BE USED IN A CRIMINAL
PROCEEDING AGAINST THE VICTIM OF THE ILLEGAL SEARCH AND SEIZURE.  WEEKS
V. UNITED STATES, 232 U.S. 383 (1914); MAPP V. OHIO, 367 U.S. 643
(1961).  THIS PROHIBITION APPLIES AS WELL TO THE FRUITS OF THE
ILLEGALLY SEIZED EVIDENCE.  WONG SUN V. UNITED STATES, 371 U.S. 471
(1963); SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385 (1920). 
THE PURPOSE OF THE EXCLUSIONARY RULE IS NOT TO REDRESS THE INJURY TO
THE PRIVACY OF THE SEARCH VICTIM: 

     "(THE RUPTURED PRIVACY OF THE VICTIMS' HOMES AND EFFECTS
CANNOT

  BE RESTORED.  REPARATION COMES TOO LATE."  LINKLETTER V. WALKER,

  381 U.S. 618, 627 (1965). 

INSTEAD, THE RULE'S PRIME PURPOSE IS TO DETER FUTURE UNLAWFUL POLICE
CONDUCT AND THEREBY EFFECTUATE THE GUARANTEE OF THE FOURTH AMENDMENT
AGAINST UNREASONABLE SEARCH AND SEIZURES: 

     "THE RULE IS CALCULATED TO PREVENT, NOT TO REPAIR.  ITS
PURPOSE

  IS TO DETER--TO COMPEL RESPECT FOR THE CONSTITUTIONAL GUARANTY IN

  THE ONLY EFFECTIVELY AVAILABLE WAY--BY REMOVING THE INCENTIVE TO

  DISREGARD IT."  ELKINS V. UNITED STATES, 364 U.S. 206, 217

  (1960). 

ACCORD, MAPP V. OHIO, SUPRA, AT 656; TEHAN V. SHOTT, 382 U.S. 406,
416 (1966); TERRY V. OHIO, 392 U.S. 1, 29 (1968).  IN SUM, THE RULE IS
A JUDICALLY CREATED REMEDY DESIGNED TO SAFEGUARD FOURTH AMENDMENT
RIGHTS GENERALLY THROUGH ITS DETERRENT EFFECT, RATHER THAN A PERSONAL
CONSTITUTIONAL RIGHT OF THE PARTY AGGRIEVED.  /5/ 

DESPITE ITS BROAD DETERRENT PURPOSE, THE EXCLUSIONARY RULE HAS NEVER
BEEN INTERPRETED TO PROSCRIBE THE USE OF ILLEGALLY SEIZED EVIDENCE IN
ALL PROCEEDINGS OR AGAINST ALL PERSONS.  AS WITH ANY REMEDIAL DEVICE,
THE APPLICATION OF THE RULE HAS BEEN RESTRICTED TO THOSE AREAS WHERE
ITS REMEDIAL OBJECTIVES ARE THOUGHT MOST EFFICACIOUSLY SERVED.  THE
BALANCING PROCESS IMPLICIT IN THIS APPROACH IS EXPRESSED IN THE
CONTOURS OF THE STANDING REQUIREMENT.  THUS, STANDING TO INVOKE THE
EXCLUSIONARY RULE HAS BEEN CONFINED TO SITUATIONS WHERE THE GOVERNMENT
SEEKS TO USE SUCH EVIDENCE TO INCRIMINATE THE VICTIM OF THE UNLAWFUL
SEARCH.  BROWN V. UNITED STATES, 411 U.S. 223 (1973); ALDERMAN V.
UNITED STATES, 394 U.S. 165 (1969); WONG SUN V. UNITED STATES, SUPRA;
JONES V. UNITED STATES, 362 U.S. 257 (1960).  THIS STANDING RULE IS
PREMISED ON A RECOGNITION THAT THE NEED FOR DETERRENCE AND HENCE THE
RATIONALE FOR EXCLUDING THE EVIDENCE ARE STRONGEST WHERE THE
GOVERNMENT'S UNLAWFUL CONDUCT WOULD RESULT IN IMPOSITION OF A CRIMINAL
SANCTION ON THE VICTIM OF THE SEARCH.  /6/

        IV 

IN DECIDING WHETHER TO EXTEND THE EXCLUSIONARY RULE TO GRAND JURY
PROCEEDINGS, WE MUST WEIGH THE POTENTIAL INJURY TO THE HISTORIC ROLE
AND FUNCTIONS OF THE GRAND JURY AGAINST THE POTENTIAL BENEFITS OF THE
RULE AS APPLIED IN THIS CONTEXT.  IT IS EVIDENT THAT THIS EXTENTION OF
THE EXCLUSIONARY RULE WOULD SERIOUSLY IMPEDE THE GRAND JURY.  BECAUSE
THE GRAND JURY DOES NOT FINALLY ADJUDICATE GUILT OR INNOCENCE, IT HAS
TRADITIONALLY BEEN ALLOWED TO PURSUE ITS INVESTIGATIVE AND ACCUSATORIAL
FUNCTIONS UNIMPEDED BY THE EVIDENTIARY AND PROCEDURAL RESTRICTIONS
APPLICABLE TO A CRIMINAL TRIAL.  PERMITTING WITNESSES TO INVOKE THE
EXCLUSIONARY RULE BEFORE A GRAND JURY WOULD PRECIPITATE ADJUDICATION OF
ISSUES HITHERTO RESERVED FOR THE TRIAL ON THE MERITS AND WOULD DELAY
AND DISRUPT GRAND JURY PORCEEDINGS.  SUPPRESSION HEARINGS WOULD HALT
THE ORDERLY PROGRESS OF AN INVESTIGATION AND MIGHT NECESSITATE EXTENDED
LITIGATION OF ISSUES ONLY TANGENTIALLY RELATED TO THE GRAND JURY'S
PRIMARY OBJECTIVE.  /7/  THE PROBABLE RESULT WOULD BE "PROTRACTED
INTERRUPTION OF GRAND JURY PROCEEDINGS," GELBARD V. UNITED STATES, 408
U.S. 41, 70 (1972) (WHITE, J., CONCURRING), EFFECTIVELY TRANSFORMING
THEM INTO PRELIMINARY TRAILS ON THE MERITS.  IN SOME CASES THE DELAY
MIGHT BE FATAL TO THE ENFORCEMENT OF THE CRIMINAL LAW.  JUST LAST TERM
WE REAFFIRMED OUR DISINCLINATION TO ALLOW LITIGIOUS INTERFERENCE WITH
GRAND JURY PROCEEDINGS: 

     "ANY HOLDING THAT WOULD SADDLE A GRAND JURY WITH MINITRIALS
AND

  PRELIMINARY SHOWINGS WOULD ASSUREDLY IMPEDE ITS INVESTIGATION AND

  FRUSTRATE THE PUBLIC'S INTEREST IN THE FAIR AND EXPEDITIOUS

  ADMINISTRATION OF THE CRIMINAL LAWS."  UNITED STATES V. DIONISIO,

  410 U.S. 1, 17 (1973). 

CF. UNITED STATES V. RYAN, 402 U.S. 530 (1971); COBBLEDICK V. UNITED
STATES, 309 U.S. 323 (1940).  IN SUM, WE BELIEVE THAT ALLOWING A GRAND
JURY WITNESS TO INVOKE THE EXCLUSIONARY RULE WOULD UNDULY INTERFERE
WITH THE EFFECTIVE AND EXPEDITIOUS DISCHARGE OF THE GRAND JURY'S
DUTIES. 

AGAINST THIS POTENTIAL DAMAGE TO THE ROLE AND FUNCTIONS OF THE GRAND
JURY, WE MUST WEIGH THE BENEFITS TO BE DERIVED FROM THIS PROPOSED
EXTENSION OF THE EXCLUSIONARY RULE.  SUPPRESSION OF THE USE OF
ILLEGALLY SEIZED EVIDENCE AGAINST THE SEARCH VICTIM IN A CRIMINAL TRIAL
IS THOUGHT TO BE AN IMPORTANT METHOD OF EFFECTUATING THE FOURTH
AMENDMENT.  BUT IT DOES NOT FOLLOW THAT THE FOURTH AMENDMENT REQUIRES
ADOPTION OF EVERY PROPOSAL THAT MIGHT DETER POLICE MISCONDUCT.  IN
ALDERMAN V. UNITED STATES, 394 U.S., AT 174 - 175, FOR EXAMPLE, THIS
COURT DECLINED TO EXTEND THE EXCLUSIONARY RULE TO ONE WHO WAS NOT THE
VICTIM OF THE UNLAWFUL SEARCH: 

     "THE DETERRENT VALUES OF PREVENTING THE INCRIMINATION OF THOSE

  WHOSE RIGHTS THE POLICE HAVE VIOLATED HAVE BEEN CONSIDERED

  SUFFICIENT TO JUSTIFY THE SUPPRESSION OF PROBATIVE EVIDENCE EVEN

  THOUGH THE CASE AGAINST THE DEFENDANT IS WEAKENED OR DESTROYED. 

  WE ADHERE TO THAT JUDGMENT.  BUT WE ARE NOT CONVINCED THAT THE

  ADDITIONAL BENEFITS OF EXTENDING THE EXCLUSIONARY RULE TO OTHER

  DEFENDANTS WOULD JUSTIFY FURTHER ENCROACHMENT UPON THE PUBLIC

INTEREST IN PROSECUTING THOSE ACCUSED OF CRIME AND HAVING THEM

  ACQUITTED OR CONVICTED ON THE BASIS OF ALL THE EVIDENCE WHICH

  EXPOSES THE TRUTH." 

WE THINK THIS OBSERVATION EQUALLY APPLICABLE IN THE PRESENT
CONTEXT. 

ANY INCREMENTAL DETERRENT EFFECT WHICH MIGHT BE ACHIEVED BY
EXTENDING THE RULE TO GRAND JURY PORCEEDINGS IS UNCERTAIN AT BEST. 
WHATEVER DETERRENCE OF POLICE MISCONDUCT MAY RESULT FROM THE EXCLUSION
OF ILLEGALLY SEIZED EVIDENCE FROM CRIMINAL TRIALS, IT IS UNREALISTIC TO
ASSUME THAT APPLICATION OF THE RULE TO GRAND JURY PROCEEDINGS WOULD
SIGNIFICANTLY FURTHER THAT GOAL.  SUCH AN EXTENSION WOULD DETER ONLY
POLICE INVESTIGATION CONSCIOUSLY DIRECTED TOWARD THE DISCOVERY OF
EVIDENCE SOLELY FOR USE IN A GRAND JURY INVESTIGATION.  THE INCENTIVE
TO DISREGARD THE REQUIREMENT OF THE FOURTH AMENDMENT SOLELY TO OBTAIN
AN INDICTMENT FROM A GRAND JURY IS SUBSTANTIALLY NEGATED BY THE
INADMISSIBILITY OF THE ILLEGALLY SEIZED EVIDENCE IN A SUBSEQUENT
CRIMINAL PRSECUTION OF THE SEARCH VICTIM.  FOR THE MOST PART, A
PROSECUTOR WOULD BE UNLIKELY TO REQUEST AN INDICTMENT WHERE A
CONVICTION COULD NOT BE OBTAINED.  WE THEREFORE DECLINE TO EMBRACE A
VIEW THAT WOULD ACHIEVE A SPECULATIVE AND UNDOUBTEDLY MINIMAL ADVANCE
IN THE DETERRENCE OF POLICE MISCONDUCT AT THE EXPENSE OF SUBSTANTIALLY
IMPEDING THE ROLE OF THE GRAND JURY.  /8/

        V 

RESPONDENT ALSO ARGUES THAT EACH AND EVERY QUESTION BASED ON
EVIDENCE OBTAINED FROM AN ILLEGAL SEARCH AND SEIZURE CONSTITUTES A
FRESH AND INDEPENDENT VIOLATION OF THE WITNESS' CONSTITUTIONAL RIGHTS. 
/9/  ORDINARILY, OF COURSE, A WITNESS HAS NO RIGHT OF PRIVACY BEFORE
THE GRAND JURY.  ABSENT SOME RECOGNIZED PRIVILEGE OF CONFIDENTIALITY,
EVERY MAN OWES HIS TESTIMONY.  HE MAY INVOKE HIS FIFTH AMENDMENT
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION, BUT HE MAY NOT DECLINE
TO ANSWER ON THE GROUNDS THAT HIS RESPONSES MIGHT PROVE EMBARRASSING OR
RESULT IN AN UNWELCOME DISCLOSURE OF HIS PERSONAL AFFAIRS.  BLAIR V.
UNITED STATES, 250 U.S. 273 (1919).  RESPONDENT'S CLAIM MUST BE,
THEREFORE, NOT MERELY THAT THE GRAND JURY'S QUESTIONS INVADE HIS
PRIVACY BUT THAT, BECAUSE THOSE QUESTIONS ARE BASED ON ILLEGALLY
OBTAINED EVIDENCE, THEY SOMEHOW CONSTITUTE DISTINCT VIOLATIONS OF HIS
FOURTH AMENDMENT RIGHTS.  WE DISAGREE. 

THE PURPOSE OF THE FOURTH AMENDMENT IS TO PREVENT UNREASONABLE
GOVERNMENTAL INTRUSIONS INTO THE PRIVACY OF ONE'S PERSON, HOUSE,
PAPERS, OR EFFECTS.  THE WRONG CONDEMNED IS THE UNJUSTIFIED
GOVERNMENTAL INVASION OF THESE AREAS OF AN INDIVIDUAL'S LIFE.  THAT
WRONG, COMMITTED IN THIS CASE, IS FULLY ACCOMPLISHED BY THE ORIGINAL
SEARCH WITHOUT PROBABLE CAUSE.  GRAND JURY QUESTIONS BASED ON EVIDENCE
OBTAINED THEREBY INVOLVE NO INDEPENDENT GOVERNMENTAL INVASION OF ONE'S
PERSON, HOUSE, PAPERS, OR EFFECTS, BUT RATHER THE USUAL ABRIDGMENT OF
PERSONAL PRIVACY COMMON TO ALL GRAND JURY QUESTIONING.  QUESTIONS BASED
ON ILLEGALLY OBTAINED EVIDENCE ARE ONLY A DERIVATIVE USE OF THE PRODUCT
OF A PAST UNLAWFUL SEARCH AND SEIZURE.  THEY WORK NO NEW FOURTH
AMENDMENT WRONG.  WHETHER SUCH DERIVATIVE USE OF ILLEGALLY OBTAINED
EVIDENCE BY A GRAND JURY SHOULD BE PROSCRIBED PRESENTS A QUESTION, NOT
OF RIGHTS, BUT OF REMEDIES. 

IN THE USUAL CONTEXT OF A CRIMINAL TRIAL, THE DEFENDANT IS ENTITLED
TO THE SUPPRESSION OF, NOT ONLY THE EVIDENCE OBTAINED THROUGH AN
UNLAWFUL SEARCH AND SEIZURE, BUT ALSO ANY DERIVATIVE USE OF THAT
EVIDENCE.  THE PROHIBITION OF THE EXCLUSIONARY RULE MUST REACH SUCH
DERIVATIVE USE IF IT IS TO FULFILL ITS FUNCTION OF DETERRING POLICE
MISCONDUCT.  IN THE CONTEXT OF A GRAND JURY PROCEEDING, WE BELIEVE THAT
THE DAMAGE TO THAT INSTITUTION FROM THE UNPRECEDENTED EXTENSION OF THE
EXCLUSIONARY RULE URGED BY RESPONDENT OUTWEIGHS THE BENEFIT OF ANY
POSSIBLE INCREMENTAL DETERRENT EFFECT.  OUR CONCLUSION NECESSARILY
CONTROLS BOTH THE EVIDENCE SEIZED DURING THE COURSE OF AN UNLAWFUL
SEARCH AND SEIZURE AND ANY QUESTION OR EVIDENCE DERIVED THEREFROM (THE
FRUITS OF THE UNLAWFUL SEARCH).  /10/  THE SAME CONSIDERATIONS OF LOGIC
AND POLICY APPLY TO BOTH THE FRUITS OF AN UNLAWFUL SEARCH AND SEIZURE
AND DERIVATIVE USE OF THAT EVIDENCE, AND WE DO NOT DISTINGUISH BETWEEN
THEM.  /11/ 

THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  ON THE BASIS OF THE SAME AFFIDAVIT, FEDERAL AGENTS ALSO
OBTAINED WARRANTS AUTHORIZING SEARCHES OF CALANDRA'S RESIDENCE AND
AUTOMOBILE.  THE PRESENT CASE INVOLVES ONLY THE SEARCH OF THE ROYAL
MACHINE & TOOL CO. 

/2/  THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S FINDING THAT
THE SEARCH OF CALANDRA'S BUSINESS AND SEIZURE OF HIS PROPERTY WERE
UNLAWFUL.  465 F.2D 1218, 1226 N. 5.  ALTHOUGH THE GOVERNMENT DOES NOT
AGREE WITH THE COURT'S FINDING, IT HAS NOT SOUGHT REIVEW OF THIS
ISSUE.  IN ADDITION, THE GOVERNMENT HAS NOT CHALLENGED THE DISTRICT
COURT'S ORDER DIRECTING RETURN OF THE ILLEGALLY SEIZED PROPERTY TO
CALANDRA. 

/3/  FOR A DISCUSSION OF THE HISTORY AND ROLE OF THE GRAND JURY, SEE
COSTELLO V. UNITED STATES, 350 U.S. 359, 361 - 362 (1956); BLAIR V.
UNITED STATES, 250 U.S. 273, 379 - 283 (1919); HALE V. HENKEL, 201 U.S.
43, 59 (1906); 4 W. BLACKSTONE, COMMENTARIES 301 ET SEQ.; G. EDWARDS,
THE GRAND JURY 1 - 44 (1906); 1 F. POLLOCK & F. MAITLAND, HISTORY OF
ENGLISH LAW 151 (2D ED. 1909); 1 W. HOLDSWORTH, HISTORY OF ENGLISH LAW
321 - 323 (7TH REV. ED. 1956). 

/4/  THE GRAND JURY IS SUBJECT TO THE COURT'S SUPERVISION IN SEVERAL
RESPECTS.  SEE BROWN V. UNITED STATES, 359 U.S. 41, 49 (1959); FED.
RULES CRIM. PROC. 6 AND 17; 1 L. ORFIELD, CRIMINAL PROCEDURE UNDER THE
FEDERAL RULES 6:108, PP. 475 - 477 (1966).  IN PARTICULAR, THE GRAND
JURY MUST RELY ON THE COURT TO COMPEL PRODUCTION OF BOOKS, PAPERS,
DOCUMENTS, AND THE TESTIMONY OF WITNESSES, AND THE COURT MAY QUASH OR
MODIFY A SUBPOENA ON MOTION IF COMPLIANCE WOULD BE "UNREASONABLE OR
OPPRESSIVE."  FED. RULE CRIM. PROC. 17(C). 

/5/  THERE IS SOME DISAGREEMENT AS TO THE PRACTICAL EFFICACY OF THE
EXCLUSIONARY RULE, AND AS THE COURT NOTED IN ELKINS V. UNITED STATES,
364 U.S. 206, 218 (1960), RELEVANT "(EMPIRICAL STATISTICS ARE NOT
AVAILABLE."  CF. OAKS, STUDYING THE EXCLUSIONARY RULE IN SEARCH AND
SEIZURE, 37 U. CHI.  L. REV. 665 (1970).  WE HAVE NO OCCASION IN THE
PRESENT CASE TO CONSIDER THE EXTENT OF THE RULE'S EFFICACY IN CRIMINAL
TRIALS. 

/6/  IN HOLDING THAT THE RESPONDENT HAD STANDING TO INVOKE THE
EXCLUSIONARY RULE IN A GRAND JURY PORCEEDING, THE COURT OF APPEALS
RELIED ON FED. RULE CRIM. PROC. 41(E).  465 F.2D, AT 1222 - 1224.  RULE
41(E) PROVIDES, IN RELEVANT PART, THAT "(A) PERSON AGGRIEVED BY AN
UNLAWFUL SEARCH AND SEIZURE MAY MOVE THE DISTRICT COURT ... FOR THE
RETURN OF THE PROPERTY AND TO SUPPRESS FOR THE USE AS EVIDENCE ANYTHING
SO OBTAINED ...."  IT FURTHER STATES THAT "(THE MOTION SHALL BE MADE
BEFORE TRIAL OR HEARING ...."  WE HAVE RECOGNIZED THAT RULE 41(E) IS
"NO BROADER THAN THE CONSTITUTIONAL RULE."  ALDERMAN V. UNITED STATES,
394 U.S. 165, 170 N. 6 (1969); JONES V. UNITED STATES, 362 U.S. 257
(1960).  RULE 41(E), THEREFORE, DOES NOT CONSTITUTE A STATUTORY
EXPANSION OF THE EXCLUSIONARY RULE. 

THE COURT OF APPEALS ALSO FOUND THAT THE GOVERNMENT'S OFFER OF
IMMUNITY UNDER 18 U.S.C. 2514 WAS IRRELEVANT TO RESPONDENT'S STANDING
TO INVOKE THE EXCLUSIONARY RULE.  465 F.2D, AT 1221.  WE AGREE WITH
THAT DETERMINATION FOR THE REASONS STATED IN PARTS III, IV, AND V OF
THIS OPINION. 

/7/  THE FORCE OF THIS ARGUMENT IS WELL ILLUSTRATED BY THE FACTS OF
THE PRESENT CASE.  AS OF THE DATE OF THIS DECISION, ALMOST TWO AND ONE
HALF YEARS HAVE ELAPSED SINCE RESPONDENT WAS SUMMONED TO APPEAR AND
TESTIFY BEFORE THE GRAND JURY.  IF RESPONDENT'S TESTIMONY WAS VITAL TO
THE GRAND JURY'S INVESTIGATION IN AUGUST 1971 OF EXTORTIONATE CREDIT
TRANSACTIONS, IT IS POSSIBLE THAT THIS PARTICULAR INVESTIGATION HAS
BEEN COMPLETELY FRUSTRATED. 

/8/  RESPONDENT RELIES PRIMARILY ON SILVERTHORNE LUMBER CO. V.
UNITED STATES, 251 U.S. 385 (1920), WHICH THE DISSENT CONTENDS "PLAINLY
CONTROLS THIS CASE."  POST, AT 362.  IN THAT CASE, FEDERAL OFFICERS
UNLAWFULLY SEIZED CERTAIN DOCUMENTS BELONGING TO THE SILVERTHORNES AND
THEIR LUMBER COMPANY AND PRESENTED THEM TO A GRAND JURY THAT HAD
ALREADY INDICTED THE SILVERTHORNES AND THE COMPANY.  A DISTRICT COURT
ORDERED THE RETURN OF THE DOCUMENTS BUT IMPOUNDED PHOTOGRAPHS AND
COPIES OF THE ORIGINALS.  LATER, THE PROSECUTOR CAUSED THE GRAND JURY
TO ISSUE SUBPOENAS DUCES TECUM TO THE SILVERTHORNES AND THE COMPANY TO
PRODUCE THE ORIGINALS, AND THEIR RUFUSAL TO COMPLY LED TO A COMTEMPT
CITATION.  IN REVERSING THE JUDGMENT, THE COURT HELD THAT THE SUBPOENAS
WERE INVALID BECAUSE THEY WERE BASED ON KNOWLEDGE OBTAINED FROM THE
ILLEGALLY SEIZED EVIDENCE, CITING WEEKS V. UNITED STATES, 232 U.S. 383
(1914).  MR. JUSTICE HOLMES, WRITING FOR THE COURT, STATED THAT THE
"ESSENCE OF A PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE IN A
CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE USED
BEFORE THE COURT BUT THAT IT SHALL NOT BE USED AT ALL."  251 U.S., AT
392. 

SILVERTHORNE IS DISTINGUISHABLE FROM THE PRESENT CASE IN SEVERAL
SIGNIFICANT RESPECTS.  THERE, PLAINTIFFS IN ERROR HAD PREVIOUSLY BEEN
INDICTED BY THE GRAND JURY AND THUS COULD INVOKE THE EXCLUSIONARY RULE
ON THE BASIS OF THEIR STATUS AS CRIMINAL DEFENDANTS.  MOREOVER, THE
GOVERNMENT'S INTEREST IN RECAPTURING THE ORIGINAL DOCUMENTS WAS FOUNDED
ON A BELIEF THAT THEY MIGHT BE USEFUL IN THE CRIMINAL PROSECUTION
ALREADY AUTHORIZED BY THE GRAND JURY.  IT DID NOT APPEAR THAT THE GRAND
JURY NEEDED THE DOCUMENTS TO PERFORM ITS INVESTIGATIVE OR ACCUSATORIAL
FUNCTIONS.  THUS, THE PRIMARY CONSEQUENCE OF THE COURT'S DECISION WAS
TO EXCLUDE THE EVIDENCE FROM THE SUBSEQUENT CRIMINAL TRIAL.  FINALLY,
PRIOR TO THE ISSUANCE OF THE GRAND JURY SUBPOENAS, THERE HAD BEEN A
JUDICIAL DETERMINATION THAT THE SEARCH AND SEIZURE WERE ILLEGAL.  THE
CLAIM OF PLAINTIFFS IN ERROR WAS NOT RAISED FOR THE FIRST TIME IN A PRE
INDICTMENT MOTION TO SUPPRESS REQUIRING INTERRUPTION OF GRAND JURY
PROCEEDINGS. 

BY CONTRAST, IN THE INSTANT CASE RESPONDENT HAD NOT BEEN INDICTED BY
THE GRAND JURY AND WAS NOT A CRIMINAL DEFENDANT.  UNDER TRADITIONAL
PRINCIPLES, HE HAD NO STANDING TO INVOKE THE EXCLUSIONARY RULE.  THE
EFFECT OF THE DISTRICT COURT'S ORDER WAS TO DEPRIVE THE GRAND JURY OF
TESTIMONY IT NEEDED TO CONDUCT ITS INVESTIGATION.  FURTHERMORE,
RESPONDENT'S MOTION TO SUPPRESS HAD NOT BEEN PREVIOUSLY MADE AND
REQUIRED INTERRUPTION OF THE GRAND JURY PROCEEDINGS.  IN THESE
CIRCUMSTANCES, SILVERTHORNE IS CERTAINLY NOT CONTROLLING.  TO THE
EXTENT THAT THE COURT'S BROAD DICTUM MIGHT BE CONSTRUED TO SUGGEST A
DIFFERENT RESULT IN THE PRESENT CASE, WE NOTE THAT IT HAS BEEN
SUBSTANTIALLY UNDERMINED BY LATER CASES.  SEE PARTS III AND IV OF THIS
OPINION. 

/9/  AT ORAL ARGUMENT, COUNSEL FOR RESPONDENT STATED THE CONTENTION
AS FOLLOWS: 

"I SUBMIT TO THE COURT THAT EACH QUESTION ASKED OF THE RESPONDENT
BEFORE THE GRAND JURY, WHICH QUESTION WAS ONLY ASKED BECAUSE OF A PAST
VIOLATION OF THE FOURTH AMENDMENT, (AMOUNTS TO) A NEW, IMMEDIATE
VIOLATION OF THE FOURTH AMENDMENT .... (A) QUESTION DERIVED FROM A PAST
VIOLATION, A QUESTION INTO THE PRIVACY OF THE WITNESS AMOUNTS TO
ANOTHER INTRUSION IN VIOLATION OF THE FOURTH AMENDMENT."  TR. OF ORAL
ARG. 17. 

"(REFUSING TO ANSWER A QUESTION IN WHICH THE QUESTION CONCEIVABLY IS
DERIVED FROM A PAST VIOLATION OF THE FOURTH AMENDMENT, GIVES RISE TO AN
ADDITIONAL OR NEW FOURTH AMENDMENT RIGHT TO RESIST ANSWERING THAT
QUESTION BECAUSE OF THE QUESTION ITSELF BECOMES AN ADDITIONAL
INTRUSION...."  TR. OF ORAL ARG. 19 - 20. 

/10/  IT SHOULD BE NOTED THAT, EVEN ABSENT THE EXCLUSIONARY RULE, A
GRAND JURY WITNESS MAY HAVE OTHER REMEDIES TO REDRESS THE INJURY TO HIS
PRIVACY AND TO PREVENT A FURTHER INVASION IN THE FUTURE.  HE MAY BE
ENTITLED TO MAINTAIN A CAUSE OF ACTION FOR DAMAGES AGAINST THE OFFICERS
WHO CONDUCTED THE UNLAWFUL SEARCH.  BIVENS V. SIX UNKNOWN FED.
NARCOTICS AGENTS, 403 U.S. 388 (1971).  HE MAY ALSO SEEK RETURN OF THE
ILLEGALLY SEIZED PROPERTY, AND EXCLUSION OF THE PROPERTY AND ITS FRUITS
FROM BEING USED AS EVIDENCE AGAINST HIM IN A CRIMINAL TRIAL.  GO-BART
IMPORTING CO. V. UNITED STATES, 282 U.S. 344 (1931).  IN THESE
CIRCUMSTANCES, WE CANNOT SAY THAT SUCH A WITNESS IS NECESSARILY LEFT
REMEDILESS IN THE FACE OF AN UNLAWFUL SEARCH AND SEIZURE. 

/11/  THE DISSENT'S RELIANCE ON GELBARD V. UNITED STATES, 408 U.S.
41 (1972), IS MISPLACED.  THERE, THE COURT CONSTRUED 18 U.S.C. 2515,
THE EVIDENTIARY PROHIBITION OF TIT. III OF THE OMNIBUS CRIME CONTROL
AND SAFE STREETS ACT OF 1968, 82 STAT, 211, AS AMENDED, 18 U.S.C. 2510
2520.  IT HELD THAT 2515 COULD BE INVOKED BY A GRAND JURY WITNESS AS A
DEFENSE TO A CONTEMPT CHARGE BROUGHT FOR REFUSAL TO ANSWER QUESTIONS
BASED ON INFORMATION OBTAINED FROM THE WITNESS' COMMUNICATIONS ALLEGED
TO HAVE BEEN UNLAWFULLY INTERCEPTED THROUGH WIRETAPPING AND ELECTRONIC
SURVEILLANCE.  THE COURT'S HOLDING RESTED EXCLUSIVELY ON AN
INTERPRETATION OF TIT. III, WHICH REPRESENTED A CONGRESSIONAL EFFORT TO
AFFORD SPECIAL SAFEGUARDS AGAINST THE UNIQUE PROBLEMS POSED BY MISUSE
OF WIRETAPPING AND ELECTRONIC SURVEILLANCE.  THERE WAS NO INDICATION,
IN EITHER GELBARD OR THE LEGISLATIVE HISTORY, THAT TIT. III WAS
REGARDED AS A RESTATEMENT OF EXISTING LAW WITH RESPECT TO GRAND JURY
PROCEEDINGS.  AS MR. JUSTICE WHITE NOTED IN HIS CONCURRING OPINION IN
GELBARD, TIT. III "UNQUESTIONABLY WORKS A CHANGE IN THE LAW WITH
RESPECT TO THE RIGHTS OF GRAND JURY WITNESSES ...."  408 U.S., AT 70. 

THE DISSENT ALSO VOICES CONCERN THAT TODAY'S DECISION WILL BETRAY
"'THE IMPREATIVE OF JUDICIAL INTEGRITY,'" SANCTION "ILLEGAL GOVERNMENT
CONDUCT," AND EVEN "IMPERIL THE VERY FOUNDATION OF OUR PEOPLE'S TRUST
IN THEIR GOVERNMENT."  POST, AT 360.  THEIR IS NO BASIS FOR THIS
ALARM.  "ILLEGAL CONDUCT" IS HARDLY SANCTIONED, NOR ARE THE FOUNDATIONS
OF THE REPUBLIC IMPERILED, BY DECLINING TO MAKE AN UNPRECEDENTED
EXTENSION OF THE EXCLUSIONARY RULE TO GRAND JURY PROCEEDINGS WHERE THE
RULE'S OBJECTIVES WOULD NOT BE EFFECTIVELY SERVED AND WHERE OTHER
IMPORTANT AND HISTORIC VALUES WOULD BE UNDULY PREJUDICED.  CF. ALDERMAN
V. UNITED STATES, 394 U.S. 165 (1969); LINKLETTER V. WALKER, 381 U.S.
618 (1965); AND CASES CITED SUPRA, AT 347 - 348. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE COURT HOLDS THAT THE EXCLUSIONARY RULE IN SEARCH-AND-SEIZURE
CASES DOES NOT APPLY TO GRAND JURY PROCEEDINGS BECAUSE THE PRINCIPAL
OBJECTIVE OF THE RULE IS "TO DETER FUTURE UNLAWFUL POLICE CONDUCT,"
ANTE, AT 347, AND "IT IS UNREALISTIC TO ASSUME THAT APPLICATION OF THE
RULE TO GRAND JURY PROCEEDINGS WOULD SIGNIFICANTLY FURTHER THAT GOAL." 
ANTE, AT 351.  THIS DOWNGRADING OF THE EXCLUSIONARY RULE TO A
DETERMINATION WHETHER ITS APPLICATION IN A PARTICULAR TYPE OF
PROCEEDING FURTHERS DETERRENCE OF FUTURE POLICE MISCONDUCT REFLECTS A
STARTLING MISCONCEPTION, UNLESS IT IS A PURPOSEFUL REJECTION, OF THE
HISTORICAL OBJECTIVE AND PURPOSE OF THE RULE. 

THE COMMANDS OF THE FOURTH AMENDMENT ARE, OF COURSE, DIRECTED SOLELY
TO PUBLIC OFFICIALS.  NECESSARILY, THEREFORE, ONLY OFFICIAL VIOLATIONS
OF THOSE COMMANDS COULD HAVE CREATED THE EVIL THAT THREATENED TO MAKE
THE AMENDMENT A DEAD LETTER.  BUT CURTAILMENT OF THE EVIL, IF A
CONSIDERATION AT ALL, WAS AT BEST ONLY A HOPED-FOR EFFECT OF THE
EXCLUSIONARY RULE, NOT ITS ULTIMATE OBJECTIVE.  INDEED, THERE IS NO
EVIDENCE THAT THE POSSIBLE DETERRENT EFFECT OF THE RULE WAS GIVEN ANY
ATTENTION BY THE JUDGES CHIEFLY RESPONSIBLE FOR ITS FORMULATION.  THEIR
CONCERN AS GUARDIANS OF THE BILL OF RIGHTS WAS TO FASHION AN
ENFORCEMENT TOOL TO GIVE CONTENT AND MEANING TO THE FOURTH AMENDMENT'S
GUARANTEES.  THEY THUS BORE OUT JAMES MADISON'S PREDICTION IN HIS
ADDRESS TO THE FIRST CONGRESS ON JUNE 8, 1789: 

     "IF THEY (THE RIGHTS) ARE INCORPORATED INTO THE CONSTITUTION,

  INDEPENDENT TRIBUNALS OF JUSTICE WILL CONSIDER THEMSELVES IN A

  PECULIAR MANNER THE GUARDIANS OF THOSE RIGHTS; THEY WILL BE AN

  IMPENETRABLE BULWARK AGAINST EVERY ASSUMPTION OF POWER IN THE

  LEGISLATIVE OR EXECUTIVE; THEY WILL BE NATURALLY LED TO RESIST

  EVERY ENCROACHMENT UPON RIGHTS EXPRESSLY STIPULATED FOR IN THE

CONSTITUTION BY THE DECLARATION OF RIGHTS."  1 ANNALS OF CONG.

  439 (1789). 

SINCE, HOWEVER, THOSE JUDGES WERE WITHOUT POWER TO DIRECT OR CONTROL
THE CONDUCT OF LAW ENFORCEMENT OFFICERS, THE ENFORCEMENT TOOL HAD
NECESSARILY TO BE ONE CAPABLE OF ADMINISTRATION BY JUDGES.  THE
EXCLUSIONARY RULE, IF NOT PERFECT, ACCOMPLISHED THE TWIN GOALS OF
ENABLING THE JUDICIARY TO AVOID THE TAINT OF PARTNERSHIP IN OFFICIAL
LAWLESSNESS AND OF ASSURING THE PEOPLE--ALL POTENTIAL VICTIMS OF
UNLAWFUL GOVERNMENT CONDUCT--THAT THE GOVERNMENT WOULD NOT PROFIT FROM
ITS LAWLESS BEHAVIOR, THUS MINIMIZING THE RISK OF SERIOUSLY UNDERMINING
POPULAR TRUST IN GOVERNMENT. 

THAT THESE CONSIDERATIONS, NOT THE RULE'S POSSIBLE DETERRENT EFFECT,
WERE UPPERMOST IN THE MINDS OF THE FRAMERS OF THE RULE CLEARLY EMERGES
FROM THE DECISION WHICH FASHIONED IT: 

     "THE EFFECT OF THE FOURTH AMENDMENT IS TO PUT THE COURTS OF
THE

  UNITED STATES AND FEDERAL OFFICIALS, IN THE EXERCISE OF THEIR

  POWER AND AUTHORITY, UNDER LIMITATIONS AND RESTRAINTS AS TO THE

  EXERCISE OF SUCH POWER AND AUTHORITY, AND TO FOREVER SECURE THE

PEOPLE, THEIR PERSONS, HOUSES, PAPERS AND EFFECTS AGAINST ALL

  UNREASONABLE SEARCHES AND SEIZURES UNDER THE GUISE OF LAW....

  THE TENDENCY OF THOSE WHO EXECUTE THE CRIMINAL LAWS OF THE

  COUNTRY TO OBTAIN CONVICTION BY MEANS OF UNLAWFUL SEIZURES ...

  SHOULD FIND NO SANCTION IN THE JUDGMENTS OF THE COURTS WHICH ARE

  CHARGED AT ALL TIMES WITH THE SUPPORT OF THE CONSTITUTION AND TO

  WHICH POEPLE OF ALL CONDITIONS HAVE A RIGHT TO APPEAL FOR THE

  MAINTENANCE OF SUCH FUNDAMENTAL RIGHTS....

        .          .   .          .          . 

     "THIS PROTECTION IS EQUALLY EXTENDED TO THE ACTION OF THE

  GOVERNMENT AND OFFICERS OF THE LAW ACTING UNDER IT....  TO

  SANCTION SUCH PROCEEDINGS WOULD BE TO AFFIRM BY JUDICIAL DECISION

  A MANIFEST NEGLECT IF NOT AN OPEN DEFIANCE OF THE PROHIBITIONS OF

  THE CONSTITUTION, INTENDED FOR THE PROTECTION OF THE PEOPLE

AGAINST SUCH UNAUTHORIZED ACTION."  WEEKS V. UNITED STATES, 232

  U.S. 383, 391 - 392, 394 (1914) (EMPHASIS ADDED). 

MR. JUSTICE BRANDEIS AND MR. JUSTICE HOLMES ADDED THEIR ENORMOUS
INFLUENCE TO THESE PRECEPTS IN THEIR NOTABLE DISSENTS IN OLMSTEAD V.
UNITED STATES, 277 U.S. 438 (1928).  MR. JUSTICE BRANDEIS SAID: 

     "IN A GOVERNMENT OF LAWS, EXISTENCE OF THE GOVERNMENT WILL BE

  IMPERILLED IF IT FAILS TO OBSERVE THE LAW SCRUPULOUSLY.  OUR

  GOVERNMENT IS THE POTENT, THE OMNIPRESENT TEACHER.  FOR GOOD OR

  FOR ILL, IT TEACHES THE WHOLE PEOPLE BY ITS EXAMPLE.  CRIME IS

  CONTAGIOUS.  IF THE GOVERNMENT BECOMES A LAWBREAKER, IT BREEDS

  CONTEMPT FOR LAW; IT INVITES EVERY MAN TO BECOME A LAW UNTO

  HIMSELF; IT INVITES ANARCHY."  ID., AT 485. 

AND MR. JUSTICE HOLMES SAID: 

     "(WE MUST CONSIDER THE TWO OBJECTS OF DESIRE, BOTH OF WHICH WE

  CANNOT HAVE, AND MAKE UP OUR MINDS WHICH TO CHOOSE.  IT IS

  DESIRABLE THAT CRIMINALS SHOULD BE DETECTED, AND TO THAT END THAT

  ALL AVAILABLE EVIDENCE SHOULD BE USED.  IT ALSO IS DESIRABLE THAT

  THE GOVERNMENT SHOULD NOT ITSELF FOSTER AND PAY FOR OTHER CRIMES,

WHEN THEY ARE THE MEANS BY WHICH THE EVIDENCE IS TO BE

  OBTAINED....  WE HAVE TO CHOOSE, AND FOR MY PART I THINK IT A

  LESS EVIL THAT SOME CRIMINALS SHOULD ESCAPE THAN THAT THE

  GOVERNMENT SHOULD PLAY AN IGNOBLE PART. 

      "...IF THE EXISTING CODE DOES NOT PERMIT DISTRICT ATTORNEYS
TO

  HAVE A HAND IN SUCH DIRTY BUSINESS IT DOES NOT PERMIT THE JUDGE

  TO ALLOW SUCH INIQUITIES TO SUCCEED."  ID., AT 470. 

THE SAME PRINCIPLES WERE REITERATED LESS THAN SIX YEARS AGO.  IN
TERRY V. OHIO, 392 U.S. 1, 12 - 13 (1968), MR. CHIEF JUSTICE WARREN
SAID FOR THE COURT: 

     "THE RULE ALSO SERVES ANOTHER VITAL FUNCTION--'THE IMPERATIVE

  OF JUDICIAL INTEGRITY.'  ELKINS V. UNITED STATES, 364 U.S. 206,

  222 (1960).  COURTS WHICH SIT UNDER OUR CONSTITUTION CANNOT AND

  WILL NOT BE MADE PARTY TO LAWLESS INVASIONS OF THE CONSTITUTIONAL

  RIGHTS OF CITIZENS BY PERMITTING UNHINDERED GOVERNMENTAL USE OF

  THE FRUITS OF SUCH INVASIONS." 

IT IS TRUE THAT DETERRENCE WAS A PROMINENT CONSIDERATION IN THE
DETERMINATION WHETHER MAPP V. OHIO, 367 U.S. 643 (1961), WHICH APPLIED
THE EXCLUSIONARY RULE TO THE STATES, SHOULD BE GIVEN RETROSPECTIVE
EFFECT.  LINKLETTER V. WALKER, 381 U.S. 618 (1965).  BUT THAT LENDS NO
SUPPORT TO TODAY'S HOLDING THAT THE APPLICATION OF THE EXCLUSIONARY
RULE DEPENDS SOLELY UPON WHETHER ITS INVOCATION IN A PARTICULAR TYPE OF
PROCEEDING WILL SIGNIFICANTLY FURTHER THE GOAL OF DETERRENCE.  THE
EMPHASIS UPON DETERRENCE IN LINKLETTER MUST BE UNDERSTOOD IN THE LIGHT
OF THE CRUCIAL FACT THAT THE STATES HAD JUSTIFIABLY RELIED FROM 1949 TO
1961 UPON WOLF V. COLORADO, 338 U.S. 25 (1949), AND CONSEQUENTLY, THAT
APPLICATION OF MAPP WOULD HAVE REQUIRED THE WHOLESALE RELEASE OF
INNUMERABLE CONVICTED PRISONERS, FEW OF WHOM COULD HAVE BEEN
SUCCESSFULLY RETRIED.  IN THAT CIRCUMSTANCE, LINKLETTER HELD NOT ONLY
THAT RETROSPECTIVE APPLICATION OF MAPP WOULD NOT FURTHER THE GOAL OF
DETERRENCE BUT ALSO THAT IT WOULD NOT FURTHER "THE ADMINISTRATION OF
JUSTICE AND THE INTEGRITY OF THE JUDICIAL PROCESS."  384 U.S., AT 637. 
CF. KAUFMAN V. UNITED STATES, 394 U.S. 217, 229 (1969). 

THUS, THE COURT SERIOUSLY ERRS IN DESCRIBING THE EXCLUSIONARY RULE
AS MERELY "A JUDICIALLY CREATED REMEDY DESIGNED TO SAFEGUARD FOURTH
AMENDMENT RIGHTS GENERALLY THROUGH ITS DETERRENT EFFECT ...."  ANTE, AT
348.  RATHER, THE EXCLUSIONARY RULE IS "PART AND PARCEL OF THE FOURTH
AMENDMENT'S LIMITATION UPON (GOVERNMENTAL) ENCROACHMENT OF INDIVIDUAL
PRIVACY," MAPP V. OHIO, SURPA, AT 651, AND "AN ESSENTIAL PART OF BOTH
THE FOURTH AND FOURTEENTH AMENDMENTS," ID., AT 657, THAT "GIVES TO THE
INDIVIDUAL NO MORE THAN THAT WHICH THE CONSTITUTION GUARANTEES HIM, TO
THE POLICE OFFICER NO LESS THAN THAT TO WHICH HONEST LAW ENFORCEMENT IS
ENTITLED, AND, TO THE COURTS, THAT JUDICIAL INTEGRITY SO NECESSARY IN
THE TRUE ADMINISTRATION OF JUSTICE."  ID., AT 660. 

THIS MAPP SUMMATION CRYSTALLIZES THE SERIES OF DECISIONS THAT
DEVELOPED THE RULE AND WITH WHICH TODAY'S HOLDING IS PLAINLY AT WAR. 
FOR THE FIRST TIME, THE COURT TODAY DISCOUNTS TO THE POINT OF
EXTINCTION THE VITAL FUNCTION OF THE RULE TO INSURE THAT THE JUDICIARY
AVOID EVEN THE SLIGHTEST APPEARANCE OF SANCTIONING ILLEGAL GOVERNMENT
CONDUCT.  THIS REJECTION OF "THE IMPERATIVE OF JUDICIAL INTEGRITY,"
ELKINS V. UNITED STATES, 364 U.S. 206, 222 (1960), OPENLY INVITES "(THE
CONVICTION THAT ALL GOVERNMENT IS STAFFED BY ... HYPOCRITES, (A
CONVICTION) EASY TO INSTILL AND DIFFICULT TO ERASE."  PAULSEN, THE
EXCLUSIONARY RULE AND MISCONDUCT BY THE POLICE, 52 J. CRIM. L. C. & P.
S. 255, 258 (1961).  WHEN JUDGES APPEAR TO BECOME "ACCOMPLICES IN THE
WILLFUL DISOBEDIENCE OF A CONSTITUTION THEY ARE SWORN TO UPHOLD,"
ELKINS V. UNITED STATES, SUPRA, AT 223, WE IMPERIL THE VERY FOUNDATION
OF OUR PEOPLE'S TRUST IN THEIR GOVERNMENT ON WHICH OUR DEMOCRACY
RESTS.  SEE ON LEE V. UNITED STATES, 343 U.S. 747, 758 - 759 (1952)
(FRANKFURTER, J., DISSENTING).  THE EXCLUSIONARY RULE IS NEEDED TO MAKE
THE FOURTH AMENDMENT SOMETHING REAL; A GUARANTEE THAT DOES NOT CARRY
WITH IT THE EXCLUSION OF EVIDENCE OBTAINED BY ITS VIOLATION IS A
CHIMERA.  MOREOVER, 

     "(INSISTENCE ON OBSERVANCE BY LAW OFFICERS OF TRADITIONAL FAIR

  PROCEDURAL REQUIREMENTS IS, FROM THE LONG POINT OF VIEW, BEST

  CALCULATED TO CONTRIBUTE TO THAT END.  HOWEVER MUCH IN A

  PARTICULAR CASE INSISTENCE UPON SUCH RULES MAY APPEAR AS A

  TECHNICALITY THAT INURES TO THE BENEFIT OF A GUILTY PERSON, THE

  HISTORY OF THE CRIMINAL LAW PROVES THAT TOLERANCE OF SHORTCUT

  METHODS IN LAW ENFORCEMENT IMPAIRS ITS ENDURING EFFECTIVENESS." 

  MILLER V. UNITED STATES, 357 U.S. 301, 313 (1958). 

THE JUDGES WHO DEVELOPED THE EXCLUSIONARY RULE WERE WELL AWARE THAT
IT EMBODIED A JUDGMENT THAT IT IS BETTER FOR SOME GUILTY PERSONS TO GO
FREE THAN FOR THE POLICE TO BEHAVE IN FORBIDDEN FASHION.  A SIMILAR
JUDGMENT LED THE COURT TO DECIDE IN SILVERTHORNE LUMBER CO. V. UNITED
STATES, 251 U.S. 385 (1920), THAT A GRAND JURY MUST BE DENIED ACCESS TO
PLAINLY RELEVANT BUT ILLEGALLY SEIZED PAPERS.  IN THAT CASE, AFTER
FEDERAL AGENTS UNLAWFULLY SEIZED PAPERS BELONGING TO THE SILVERTHORNES
AND THEIR CORPORATION, AND PRESENTED THE DOCUMENTS TO A GRAND JURY
WHICH HAD PREVIOUSLY INDICTED THE SILVERTHORNES, A DISTRICT COURT
ORDERED THE DOCUMENTS RETURNED AND COPIES THAT HAD BEEN PREPARED IN THE
INTERIM IMPOUNDED.  AFTER RETURNING THE ORIGINIALS, THE GRAND JURY
ATTEMPTED TO RECOUP THEM BY ISSUANCE OF A SUBPOENA DUCES TECUM. 
COMPLIANCE WITH THE SUBPOENA WAS REFUSED, AND CONTEMPT CONVICTIONS
FOLLOWED.  IN REVERSING THE JUDGMENT OF CONVICTIONS, THE COURT,
SPEAKING THROUGH MR. JUSTICE HOLMES, HELD THAT THE GOVERNMENT WAS
BARRED FROM UTILIZING ANY FRUITS OF ITS FORBIDDEN ACT, STATING THAT
"(THE ESSENCE OF A PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE IN
A CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE USED
BEFORE THE COURT BUT THAT IT SHALL NOT BE USED AT ALL."  ID., AT 392. 

SILVERTHORNE PLAINLY CONTROLS THIS CASE.  RESPONDENT, LIKE
PLAINTIFFS IN ERROR IN SILVERTHORNE, /1/  SEEKS TO AVOID FURNISHING THE
GRAND JURY WITH EVIDENCE THAT HE WOULD NOT HAVE BEEN CALLED UPON TO
SUPPLY BUT FOR THE UNLAWFUL SEARCH AND SEIZURE.  THE COURT WOULD
DISTINGUISH SILVERTHORNE ON THE GROUND THAT THERE THE PLAINTIFFS-IN
ERROR HAD BEEN INDICTED AND COULD INVOKE THE EXCLUSIONARY RULE "ON THE
BASIS OF THEIR STATUS AS CRIMINAL DEFENDANTS," SINCE THE GOVERNMENT'S
EFFORT TO OBTAIN THE DOCUMENTS WAS "FOUNDED ON A BELIEF THAT THEY MIGHT
BE USEFUL IN THE CRIMINAL PROSECUTION ALREADY AUTHORIZED BY THE GRAND
JURY."  ANTE, AT 352 N. 8.  THE EFFORT WAS CLEARLY NOT FOUNDED ON ANY
SUCH BELIEF.  OVERLOOKED IS THE FACT THAT THE GRAND JURY'S INTEREST IN
AGAIN OBTAINING THE DOCUMENTS IN SILVERTHORNE MAY WELL HAVE BEEN TO
SECURE INFORMATION LEADING TO FURTHER CRIMINAL CHARGES, ESPECIALLY
SINCE INDICTMENTS OF THREE OTHER INDIVIDUALS, AS WELL AS ADDITIONAL
INDICTMENTS OF THE SILVERTHORNES, HAD BEEN THE CONSEQUENCE OF INITIAL
SUBMISSION OF THE DOCUMENTS TO THE GRAND JURY.  SEE BRIEF ON BEHALF OF
PLAINTIFFS IN ERROR IN NO. 358, O. T. 1919, PP. 4, 18 - 19.  /2/  ONLY
IF SILVERTHORNE IS OVERRULED CAN ITS PRECEDENTIAL FORCE TO COMPEL
AFFIRMANCE HERE BE DENIED. 

CONGRESSIONAL CONCERN WITH THE SILVERTHORNE HOLDING WAS CLEARLY
EVIDENCED IN ENACTMENT OF 18 U.S.C. 2515, PROVIDING THAT "(WHENEVER ANY
WIRE OR ORAL COMMUNICATION HAS BEEN INTERCEPTED, NO PART OF THE
CONTENTS OF SUCH COMMUNICATION AND NO EVIDENCE DERIVED THEREFROM MAY BE
RECEIVED IN EVIDENCE IN ANY ... PROCEEDING IN OR BEFORE ANY ... GRAND
JURY ... IF THE DISCLOSURE OF THAT INFORMATION WOULD BE IN VIOLATION OF
THIS CHAPTER."  (EMPHASIS ADDED.)  IN GELBARD V. UNITED STATES, 408
U.S. 41 (1972), WE SET ASIDE THE ADJUDICATION IN CRIMINAL CONTEMPT OF A
GRAND JURY WITNESS WHO REFUSED TO COMPLY WITH A COURT ORDER TO TESTIFY
ON THE GROUND THAT INTERROGATION WAS TO BE BASED UPON INFORMATION
OBTAINED FROM THE WITNESS' COMMUNICATIONS ALLEGEDLY INTERCEPTED BY
FEDERAL AGENTS BY MEANS OF ILLEGAL WIRETAPPING AND ELECTRONIC
SURVEILLANCE.  OUR REASONS TRACK THE GROUNDS ADVANCED IN SILVERTHORNE. 

     "THE PURPOSES OF 2515 AND TITLE III AS A WHOLE WOULD BE

  SUBVERTED WERE THE PLAIN COMMAND OF 2515 IGNORED WHEN THE VICTIM

  OF AN ILLEGAL INTERCEPTION IS CALLED AS A WITNESS BEFORE A GRAND

  JURY AND ASKED QUESTIONS BASED UPON THAT INTERCEPTION.  MOREOVER,

  2515 SERVES NOT ONLY TO PROTECT THE PRIVACY OF COMMUNICATIONS,

  BUT ALSO TO ENSURE THAT THE COURTS DO NOT BECOME PARTNERS TO

  ILLEGAL CONDUCT:  THE EVIDENTIARY PROHIBITION WAS ENACTED ALSO

  'TO PROTECT THE INTEGRITY OF COURT AND ADMINISTRATIVE

  PORCEEDINGS.'  CONSEQUENTLY, TO ORDER A GRAND JURY WITNESS, ON

PAIN OF IMPRISONMENT, TO DISCLOSE EVIDENCE THAT 2515 BARS IN

  UNEQUIVOCAL TERMS IS BOTH TO THWART THE CONGRESSIONAL OBJECTIVE

  OF PROTECTING INDIVIDUAL PRIVACY BY EXCLUDING SUCH EVIDENCE AND

  TO ENTANGLE THE COURTS IN THE ILLEGAL ACTS OF GOVERNMENT

  AGENTS."  408 U.S., AT 51 (FOOTNOTES OMITTED). 

SIMILARLY TO ALLOW CALANDRA TO BE SUBJECTED TO QUESTIONS DERIVED
FROM THE ILLEGAL SEARCH OF HIS OFFICE AND SEIZURE OF HIS FILES IS "TO
THWART THE (FOURTH AND FOURTEENTH AMENDMENTS' PROTECTION) OF ...
INDIVIDUAL PRIVACY ... AND TO ENTANGLE THE COURTS IN THE ILLEGAL ACTS
OF GOVERNMENT AGENTS."  IBID.  "AND FOR A COURT, ON PETITION OF THE
EXECUTIVE DEPARTMENT, TO SENTENCE A WITNESS, WHO IS (HIMSELF) THE
VICTIM OF THE ILLEGAL (SEARCH AND SEIZURE), TO JAIL FOR REFUSAL TO
PARTICIPATE IN THE EXPLOITATION OF THAT (CONDUCT IN VIOLATION OF THE
EXPLICIT COMMAND OF THE FOURTH AMENDMENT) IS TO STAND OUR WHOLE SYSTEM
OF CRIMINAL JUSTICE ON ITS HEAD."  IN RE EVANS, 146 U.S. APP. D. C.
310, 323, 452 F.2D 1239, 1252 (1971) (WRIGHT, J., CONCURRING). 

IT IS NO ANSWER, TO SUGGEST AS THE COURT DOES, THAT THE GRAND JURY
WITNESSES'  FOURTH AMENDMENT RIGHTS WILL BE SUFFICIENTLY PROTECTED "BY
THE INADMISSIBILITY OF THE ILLEGALLY SEIZED EVIDENCE IN A SUBSEQUENT
CRIMINAL PROSECUTION OF THE SEARCH VICTIM."  ANTE, AT 351.  THIS, OF
COURSE, IS NO ALTERNATIVE FOR CALANDRA, SINCE HE WAS GRANTED
TRANSACTIONAL IMMUNITY AND CANNOT BE CRIMINALLY PROSECUTED.  BUT THE
FUNDAMENTAL FLAW OF THE ALTERNATIVE IS THAT TO COMPEL CALANDRA TO
TESTIFY IN THE FIRST PLACE UNDER PENALTY OF CONTEMPT NECESSARILY
"THWARTS" HIS FOURTH AMENDMENT PROTECTION AND "ENTANGLES) THE COURTS IN
ILLEGAL ACTS OF GOVERNMENT AGENTS"--CONSEQUENCES THAT SILVERTHORNE
CONDEMNED AS INTOLERABLE. 

TO BE SURE, THE EXCLUSIONARY RULE DOES NOT "PROVIDE THAT ILLEGALLY
SEIZED EVIDENCE IS INADMISSIBLE AGAINST ANYONE FOR ANY PURPOSE." 
ALDERMAN V. UNITED STATES, 394 U.S. 165, 175 (1969).  BUT CLEARLY THERE
IS A CRUCIAL DISTINCTION BETWEEN WITHHOLDING ITS COVER FROM INDIVIDUALS
WHOSE FOURTH AMENDMENT RIGHTS HAVE NOT BEEN VIOLATED--AS HAS BEEN DONE
IN THE "STANDING"  CASES, ALDERMAN V. UNITED STATES, SUPRA, JONES V.
UNITED STATES, 362 U. S. 257 (1960)--AND WITHDRAWING ITS COVER FROM
PERSONS WHOSE FOURTH AMENDMENT RIGHTS HAVE IN FACT BEEN ABRIDGED. 

RESPONDENT DOES NOT SEEK VICARIOUSLY TO ASSERT ANOTHER'S FOURTH
AMENDMENT RIGHTS.  HE HIMSELF HAS BEEN THE VICTIM OF AN ILLEGAL SEARCH
AND DESIRES "TO MEND NO ONE'S PRIVACY (BUT HIS) OWN."  GELBARD V.
UNITED STATES, SUPRA, AT 63 (DOUGLAS, J., CONCURRING).  RESPONDENT IS
TOLD THAT HE MUST LOOK TO DAMAGES TO REDRESS THE CONCEDEDLY
UNCONSTITUTIONAL INVASION OF HIS PRIVACY.  IN OTHER WORDS, OFFICIALDOM
MAY PROFIT FROM ITS LAWLESSNESS IF IT IS WILLING TO PAY A PRICE. 

IN MAPP, THE COURT THOUGHT IT HAD "CLOSED) THE ONLY COURTROOM DOOR
REMAINING OPEN TO EVIDENCE SECURED BY OFFICIAL LAWLESSNESS" IN
VIOLATION OF FOURTH AMENDMENT RIGHTS.  367 U.S., AT 654 - 655.  THE
DOOR IS AGAIN AJAR.  AS A CONSEQUENCE, I AM LEFT WITH THE UNEASY
FEELING THAT TODAY'S DECISION MAY SIGNAL THAT A MAJORITY OF MY
COLLEAGUES HAVE POSITIONED THEMSELVES TO REOPEN THE DOOR STILL FURTHER
AND ABANDON ALTOGETHER THE EXCLUSIONARY RULE IN SEARCH-AND-SEIZURE
CASES; FOR SURELY THEY CANNOT BELIEVE THAT APPLICATION OF THE
EXCLUSIONARY RULE AT TRIAL FURTHERS THE GOAL OF DETERRENCE, BUT THAT
ITS APPLICATION IN GRAND JURY PROCEEDINGS WILL NOT "SIGNIFICANTLY" DO
SO.  UNLESS WE ARE TO SHUT OUR EYES TO THE EVIDENCE THAT CROSSES OUR
DESKS EVERY DAY, WE MUST CONCEDE THAT OFFICAL LAWLESSNESS HAS NOT
ABATED AND THAT NO EMPIRICAL DATA DISTINGUISHES TRIALS FROM GRAND JURY
PROCEEDINGS.  I THUS FEAR THAT WHEN NEXT WE CONFRONT A CASE OF A
CONVICTION RESTED ON ILLEGALLY SEIZED EVIDENCE, TODAY'S DECISION WILL
BE INVOKED TO SUSTAIN THE CONCLUSION IN THAT CASE ALSO THAT "IT IS
UNREALISTIC TO ASSUME" THAT APPLICATION OF THE RULE AT TRIAL WOULD
"SIGNIFICANTLY FURTHER" THE GOAL OF DETERRENCE--THOUGH, IF THE POLICE
ARE PRESENTLY UNDETERRED, IT IS DIFFICULT TO SEE HOW REMOVAL OF THE
SANCTION OF EXCLUSION WILL INDUCE MORE LAWFUL OFFICIAL CONDUCT. 

THE EXCLUSIONARY RULE GAVE LIFE TO MADISON'S PREDICTION THAT
"INDEPENDENT TRIBUNALS OF JUSTICE ... WILL BE NATURALLY LED TO RESIST
EVERY ENCROACHMENT UPON RIGHTS EXPRESSLY STIPULATED FOR IN THE
CONSTITUTION BY THE DECLARATION OF RIGHTS."  I ANNALS OF CONG. 439
(1789).  WE BETRAY THE TRUST UPON WHICH THAT PREDICTION RESTED BY
TODAY'S LONG STEP TOWARD ABANDONMENT OF THE EXCLUSIONARY RULE.  THE
OBSERVATIONS OF A RECENT COMMENTATOR HIGHLIGHT THE GRIEVOUS ERROR OF
THE MAJORITY'S RETREAT: 

     "IF CONSTITUTIONAL RIGHTS ARE TO BE ANYTHING MORE THAN PIOUS

  PRONOUNCEMENTS, THEN SOME MEASURABLE CONSEQUENCE MUST BE ATTACHED

  TO THEIR VIOLATION.  IT WOULD BE INTOLERABLE IF THE GUARANTEE

  AGAINST UNREASONABLE SEARCH AND SEIZURE COULD BE VIOLATED WITHOUT

  PRACTICAL CONSEQUENCE.  IT IS LIKEWISE IMPERATIVE TO HAVE A

  PRACTICAL PROCEDURE BY WHICH COURTS CAN REVIEW ALLEGED VIOLATIONS

  OF CONSTITUTIONAL RIGHTS AND ARTICULATE THE MEANING OF THOSE

  RIGHTS.  THE ADVANTAGE OF THE EXCLUSIONARY RULE--ENTIRELY APART

  FROM ANY DIRECT DETERRENT EFFECT--IS THAT IT PROVIDES AN OCCASION

  FOR JUDICIAL REIVEW, AND IT GIVES CREDIBILITY TO THE

  CONSTITUTIONAL GUARANTEES.  BY DEMONSTRATING THAT SOCIETY WILL

ATTACH SERIOUS CONSEQUENCES TO THE VIOLATION OF CONSTITUTIONAL

  RIGHTS, THE EXCLUSIONARY RULE INVOKES AND MAGNIFIES THE MORAL AND

  EDUCATIVE FORCE OF THE LAW.  OVER THE LONG TERM THIS MAY

  INTEGRATE SOME FOURTH AMENDMENT IDEALS INTO THE VALUE SYSTEM OR

  NORMS OF BEHAVIOR OF LAW ENFORCEMENT AGENCIES."  OAKS, STUDYING

  THE EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37 U. CHI.  L. REV.

  665, 756 (1970). 

SEE ALSO DELLINGER, OF RIGHTS AND REMEDIES:  THE CONSTITUTION AS A
SWORD, 85 HARV. L. REV. 1532, 1562 - 1563 (1972).     I DISSENT AND
WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  NEITHER THE SILVERTHORNE LUMBER CO., BECAUSE IT WAS A
CORPORATION, SEE HALE V. HENKEL, 201 U.S. 43 (1906), NOR RESPONDENT,
BECAUSE HE WAS GRANTED TRANSACTIONAL IMMUNITY, COULD INVOKE THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  THE SITUATIONS ARE THEREFORE
COMPLETELY COMPARABLE. 

/2/  THE COURT ALSO ARGUES THAT "(THE (SILVERTHORNE'S CLAIM) WAS NOT
RAISED FOR THE FIRST TIME IN A PRE-INDICTMENT MOTION TO SUPPRESS
REQUIRING INTERRUPTION OF GRAND JURY PROCEEDINGS," ANTE, AT 352 N. 8,
AND THEREFORE PRESUMABLY ITS ASSERTION OCCASIONED NO DELAY.  HOWEVER,
THE DISTRICT COURT IN SILVERTHORNE HAD GRANTED AN EARLIER APPLICATION
FOR RETURN OF THE SEIZED DOCUMENTS FROM THE GRAND JURY AFTER
DETERMINING THAT THEY HAD BEEN OBTAINED IN VIOLATION OF THE FOURTH
AMENDMENT.  THIS COURT MADE NO INTIMATION THAT THE DISTRICT COURT ACTED
IMPROPERLY IN CONSIDERING THE INITIAL APPLICATION. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEFS WERE SOLICITOR GENERAL BORK, FORMER SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL PETERSEN, DEPUTY SOLICITOR GENERAL
LACOVARA, KEITH A. JONES, JEROME M. FEIT, AND SHIRLEY BACCUSLOBEL. 

ROBERT J. ROTATORI ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE GERALD S. GOLD AND NIKI Z. SCHWARTZ.  /1/ 

/1/  MELVIN L. WULF AND PAUL HALVONIK FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :
















GATEWAY COAL CO. V. UNITED MINE WORKERS, 414 U.S. 368 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 72 - 782.  ARGUED OCTOBER 15, 1973--DECIDED JANUARY 8,

           1974; 466 F.2D 1157, REVERSED. 


    CERTAIN FOREMEN AT PETITIONER COMPANY'S COAL MINE WERE

  SUSPENDED FOR FALSIFYING RECORDS TO SHOW NO REDUCTION IN AIRFLOW

  AT THE MINE WHEN IN FACT THE AIRFLOW HAD BEEN SUBSTANTIALLY

  REDUCED BECAUSE OF THE COLLAPSE OF A VENTILATION STRUCTURE.  WHEN

  THE COMPANY REINSTATED THE FOREMEN WHILE CRIMINAL CHARGES WERE

  PENDING AGAINST THEM, THE MINERS, WHO ARE REPRESENTED BY

  RESPONDENT UNION, STRUCK TO PROTEST THE ALLEGED SAFETY HAZARD

  CREATED BY RETENTION OF THE FOREMEN.  THE UNION REFUSED THE

  COMPANY'S OFFER TO ARBITRATE.  THE COMPANY THEN BROUGHT THIS

  ACTION UNDER 301 OF THE LABOR MANAGEMENT RALATIONS ACT,

  CONTENDING THAT THE BROAD ARBITRATION CLAUSE OF THE

  COLLECTIVE-BARGAINING AGREEMENT GOVERNED THE DISPUTE.  THE

  DISTRICT COURT ISSUED A PRELIMINARY INJUNCTION REQUIRING THE

  UNION TO END THE STRIKE AND SUBMIT TO ARBITRATION, AND ORDERED

SUSPENSION OF THE TWO FOREMEN PENDING THE ARBITRAL DECISION.  THE

  COURT APPEALS REVERSED AND VACATED THE INJUNCTION, HOLDING THAT

  THERE WAS A PUBLIC POLICY DISFAVORING COMPULSORY ARBITRATION OF

  SAFETY DISPUTES AND THAT, ABSENT AN EXPRESS PROVISION OF THE

  COLLECTIVE-BARGAINING AGREEMENT, THE UNION HAD NO CONTRACTUAL

  DUTY TO SUBMIT THE CONTROVERSY TO ARBITRATION AND HENCE NO

  IMPLIED OBLIGATION NOT TO STRIKE.  HELD: 

     1.  THE ARBITRATION CLAUSE OF THE COLLECTIVE-BARGAINING

  AGREEMENT COVERING, INTER ALIA, "ANY LOCAL TROUBLE OF ANY KIND

  ARISING) AT THE MINE," IS SUFFICIENTLY BROAD TO ENCOMPASS THE

  INSTANT DISPUTE, THE FOREMEN'S CONTINUED PRESENCE IN THE MINE

  BEING PLAINLY A LOCAL ISSUE.  PP. 374 - 380. 

     (A) ON ITS FACE SUCH CONTRACTUAL LANGUAGE ADMITS OF ONLY ONE

  INTERPRETATION:  THAT THE AGREEMENT REQUIRED THE UNION TO SUBMIT

  THIS DISPUTE TO ARBITRATION FOR RESOLUTION BY AN IMPARTIAL

  UMPIRE.  P. 376. 

     (B) THE "PRESUMPTION OF ARBITRABILITY" (AN ORDER TO ARBITRATE

  THE PARTICULAR GRIEVANCE SHOULD NOT BE DENIED UNLESS IT MAY BE

  SAID WITH POSITIVE ASSURANCE THAT THE ARBITRATION CLAUSE IS NOT

  SUSCEPTIBLE OF AN INTERPRETATION THAT COVERS THE ASSERTED

  DISPUTE, AND DOUBTS SHOULD BE RESOLVED IN FAVOR OF COVERAGE),

  STEELWORKERS V. AMERICAN MFG. CO., 363 U.S. 564; STEELWORKERS V.

WARRIOR & GULF NAVIGATION CO., 363 U.S. 574; STEELWORKERS V.

  INTERPRISE WHEEL & CAR CORP., 363 U.S. 593, APPLIES TO SAFETY

  DISPUTES.  PP. 377 - 380. 

     2.  THE DUTY TO ARBITRATE IMPOSED BY THE COLLECTIVE-BARGAINING

  AGREEMENT GAVE RISE TO AN IMPLIED NO-STRIKE OBLIGATION SUPPORTING

ISSUANCE OF AN INJUNCTION AGAINST A WORK STOPPAGE SINCE, IN THE

  ABSENCE OF AN EXPLICIT EXPRESSION NEGATING ANY IMPLIED NO-STRIKE

  OBLIGATION, THE AGREEMENT TO ARBITRATE AND THE DUTY NOT TO STRIKE

  SHOULD BE CONSTRUED AS HAVING COTERMINOUS APPLICATION.  PP. 380 -

  384. 

     3.  ON THE FACTS, 502 OF THE LABOR MANAGEMENT RELATIONS ACT

  PROVIDING THAT THE QUITTING OF LABOR BY EMPLOYEES IN GOOD FAITH

 BECAUSE OF ABNORMALLY DANGEROUS CONDITIONS FOR WORK SHALL NOT BE

  DEEMED A STRIKE, DID NOT DEPRIVE THE DISTRICT COURT OF AUTHORITY

  TO ENFORCE THE NO-STRIKE OBLIGATION, THE SUSPENSION OF THE

  FOREMEN PENDING A FINAL ARBITRAL DECISION HAVING ELIMINATED ANY

  SAFETY ISSUE.  PP. 385 - 387. 

     4.  THE CIRCUMSTANCES OF THIS CASE SATISFY THE TRADITIONAL

  EQUITABLE CONSIDERATIONS CONTROLLING THE AVAILABILITY OF

  INJUNCTIVE RELIEF, BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398

  U.S. 235, THE DISTRICT COURT FINDING THAT THE UNION'S CONTINUED

  BREACH OF ITS NO-STRIKE OBLIGATION WOULD IRREPARABLY HARM THE

  PETITIONER, AND ELIMINATING ANY SAFETY ISSUE BY SUSPENDING THE

  FOREMEN PENDING A FINAL ARBITRAL DECISION.  P. 387. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, AND REHNQUIST,
JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 388. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES A LABOR DISPUTE OVER SAFETY CONDITIONS BETWEEN
GATEWAY COAL CO. AND UNITED MINE WORKERS OF AMERICA.  THE QUESTIONS
PRESENTED ARE OF CONSIDERABLE IMPORTANCE TO THE DEVELOPMENT OF FEDERAL
POLICY REGARDING ARBITRATION OF SAFETY DISPUTES AND ENFORCEMENT OF A
CONTRACTUAL DUTY NOT TO STRIKE. 

  I 

GATEWAY COAL CO., (THE COMPANY) OWNS AND OPERATES A LARGE
UNDERGROUND COAL MINE KNOWN AS THE GATEWAY MINE, IN GREENE COUNTY,
PENNSYLVANIA.  SOME 550 PRODUCTION AND MAINTENANCE WORKERS, EMPLOYED BY
THE COMPANY, ARE REPRESENTED FOR PURPOSES OF COLLECTIVE BARGAINING BY
UNITED MINE WORKERS OF AMERICA (THE UNION), INCLUDING ITS
ADMINISTRATIVE DIVISION, DISTRICT NO. 4, AND LOCAL NO. 6330. 

ON THE MORNING OF APRIL 15, 1971, SHORTLY BEFORE THE DAYLIGHT SHIFT
AT THE MINE REPORTED FOR WORK, A SHUTTLE CAR OPERATOR ON THE DEPARTING
MIDNIGHT SHIFT NOTICED AN UNUSUALLY LOW AIRFLOW IN HIS SECTION OF THE
MINE.  HIS FOREMAN MADE AN ANEMOMETER CHECK AND DISCOVERED AN AIRFLOW
OF ONLY 11,000 CUBIC FEET PER MINUTE, LESS THAN HALF THE NORMAL RATE OF
28,000 CUBIC FEET PER MINUTE.  /1/  THE COMPANY EVACUATED THE MEN FROM
THE MINE AND ORDERED THE DAY-SHIFT EMPLOYEES TO STAND BY ON THE
SURFACE.  AN ENSUING INVESTIGATION REVEALED THAT THE COLLAPSE OF A
VENTILATION STRUCTURE HAD PARTIALLY BLOCKED AN INTAKE AIRWAY. 
IMMEDIATE REPAIRS RESTORED NORMAL AIRFLOW, AND UNDERGROUND MINING
OPERATIONS RESUMED.  IN THE MEANTIME, HOWEVER, SOME 100 OF THE 226 DAY
SHIFT EMPLOYEES HAD DISREGARDED THE COMPANY'S INSTRUCTIONS TO STAND BY
AND HAD GONE HOME. 

THE FOLLOWING MORNING THE UNION REQUESTED REPORTING PAY FOR THOSE
EMPLOYEES WHO DID NOT STAND BY AS ORDERED ON APRIL 15, BUT THE COMPANY
REFUSED.  THE UNION REJECTED THE COMPANY'S OFFER TO ARBITRATE THIS
DISPUTE, AND THE MINERS ON ALL THREE SHIFTS WALKED OFF THE JOB. 

ON APRIL 17, PURSUANT TO A UNION REQUEST, STATE AND FEDERAL
INSPECTORS VISITED THE MINE TO DETERMINE THE ADEQUACY OF THE REPAIRS. 
THE INVESTIGATION REVEALED THAT, ALTHOUGH COLLAPSE OF THE VENTILATION
STRUCTURE APPARENTLY OCCURRED BETWEEN 4 AND 4:30 ON THE MORNING OF
APRIL 15, RECORDS OF THE ANEMOMETER CHECKS PURPORTEDLY MADE BY THREE
FOREMEN SOMETIME BETWEEN 5 A.M. AND 8 A.M. DISCLOSED NO REDUCTION IN
AIRFLOW.  /2/  THE STATE INSPECTOR IMPOUNDED THE BOOK OF ENTRIES AND
NOTIFIED THE COMPANY THAT HE WOULD PRESS CRIMINAL CHARGES AGAINST THE
THREE FOREMEN FOR FALSIFICATION OF THE RECORDS.  THE COMPANY
IMMEDIATELY SUSPENDED TWO OF THE MEN BUT DECIDED AGAINST SUSPENSION OF
THE THIRD BECAUSE HE HAD REPORTED THE TROUBLE. 

ON SUNDAY, APRIL 18, ABOUT 200 COMPANY MINERS ATTENDED A SPECIAL
UNION MEETING AND VOTED NOT TO WORK UNLESS THE COMPANY SUSPENDED ALL
THREE FOREMEN.  THE COMPANY ACQUIESCED IN THIS DEMAND, AND THE
FOLLOWING MONDAY THE MINERS RETURNED TO WORK.  CRIMINAL PROSECUTIONS
WERE INSTITUTED AGAINST THE THREE FOREMEN, AND THE PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL RESOURCES UNDERTOOK CONSIDERATION OF
POSSIBLE DECERTIFICATION PROCEEDINGS AGAINST THEM. 

ON MAY 29, WHILE THE CRIMINAL CHARGES WERE STILL PENDING, THE
COMPANY RECEIVED WORD FROM THE DEPARTMENT THAT IT WAS AT LIBERTY TO
RETURN THE THREE FOREMEN TO WORK IF IT SO DESIRED.  /3/  ONE OF THE
THREE HAD RETIRED DURING HIS SUSPENSION, BUT THE COMPANY REINSTATED THE
OTHER TWO AND SCHEDULED THEM TO RESUME WORK ON THE MIDNIGHT SHIFT ON
JUNE 1.  ON THAT DATE, MINERS ON ALL THREE SHIFTS STRUCK TO PROTEST THE
ALLEGED SAFETY HAZARD CREATED BY THE PRESENCE OF THE TWO FOREMEN IN THE
MINES.  ON JUNE 8, THE COMPANY FORMALLY OFFERED TO ARBITRATE THIS
DISPUTE, BUT THE UNION REFUSED.  SUBSEQUENTLY, THE TWO FOREMEN PLEADED
NOLO CONTENDERE TO THE CRIMINAL CHARGES FOR FALSIFICATION OF THE
RECORDS AND PAID FINES OF $200 EACH. 

FACED WITH A CONTINUING STRIKE AND A REFUSAL TO ARBITRATE, THE
COMPANY INVOKED THE JURISDICTION OF THE DISTRICT COURT UNDER 301 OF THE
LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 156, 29 U.S.C. 185.  IT
ARGUED THAT THE BROAD ARBITRATION CLAUSE OF THE COLLECTIVE-BARGAINING
AGREEMENT GOVERNED THIS DISPUTE AND REQUESTED AN INJUNCTION AGAINST
CONTINUANCE OF THE STRIKE.  IN A TEMPORARY RESTRAINING ORDER LATER
CONVERTED INTO A PRELIMINARY INJUNCTION, THE DISTRICT COURT REQUIRED
THE UNION TO END THE STRIKE AND TO SUBMIT THE DISPUTE TO AN IMPARTIAL
UMPIRE WITHOUT DELAY.  /4/  THE ORDER FURTHER PROVIDED FOR SUSPENSION
OF THE TWO FOREMEN PENDING THE UMPIRE'S DECISION AND PROSPECTIVELY
REQUIRED BOTH PARTIES TO ABIDE BY HIS RESOLUTION OF THE CONTROVERSY. 

ON APPEAL, THE THIRD CIRCUIT COURT OF APPEALS, WITH ONE JUDGE
DISSENTING, REVERSED THE JUDGMENT OF THE DISTRICT COURT AND VACATED THE
PRELIMINARY INJUNCTION.  /5/  466 F.2D 1157 (1972).  THE COURT
INTIMATED THAT A SPECIAL PROVISION OF THE COLLECTIVE-BARGAINING
AGREEMENT INVOLVED HERE MIGHT BE CONSTRUED TO REMOVE SAFETY DISPUTES
FROM THE COVERAGE OF THE GENERAL ARBITRATION CLAUSE AND REASONED THAT,
IN ANY EVENT, THE UNUAL FEDERAL POLICY FAVORING ARBITRATION OF LABOR
RELATIONS DISPUTES DID NOT APPLY TO QUESTIONS CONCERNING SAFETY.  ID.,
AT 1159 - 1160.  RELYING IN PART ON 502 OF THE LABOR MANAGEMENT
RELATIONS ACT, 29 U.S.C. 143, THE COURT FOUND THAT THERE WAS A PUBLIC
POLICY DISFAVORING COMPULSORY ARBITRATION OF SAFETY DISPUTES.  SINCE IT
WAS "NEITHER PARTICULARLY STATED NOR UNAMBIGUOUSLY AGREED IN THE LABOR
CONTRACT THAT THE PARTIES SHALL SUBMIT MINE SAFETY DISPUTES TO BINDING
ARBITRATION," THE COURT OF APPEALS CONCLUDED THAT THE UNION HAD NO
CONTRACTUAL DUTY TO SUBMIT THIS CONTROVERSY TO ARBITRATION AND HENCE NO
IMPLIED OBLIGATION NOT TO STRIKE.  466 F.2D, AT 1159.  PERCEIVING NO
WRONG TO ENJOIN, THE COURT FOUND IT UNNECESSARY TO CONSIDER WHETHER
INJUNCTIVE RELIEF IN THIS CASE WAS APPROPRIATE UNDER THE TRADITIONAL
CONSIDERATIONS OF EQUITY SET FORTH BY THIS COURT IN BOYS MARKETS, INC.
V. RETAIL CLERKS UNION, 398 U.S. 235 (1970).  WE GRANTED CERTIORARI,
410 U.S. 953 (1973). 

THIS CASE PRESENTS THREE QUESTIONS.  FIRST, DID THE COLLECTIVE
BARGAINING AGREEMENT THEN IN FORCE BETWEEN THESE PARTIES IMPOSE ON THEM
A COMPULSORY DUTY TO SUBMIT SAFETY DISPUTES TO ARBITRATION BY AN
IMPARTIAL UMPIRE?  SECOND, IF SO, DID THAT DUTY TO ARBITRATE GIVE RISE
TO AN IMPLIED NO-STRIKE OBLIGATION SUPPORTING ISSUANCE OF A BOYS
MARKETS INJUNCTION?  THIRD, DID THE CIRCUMSTANCES OF THIS CASE SATISFY
THE TRADITIONAL EQUITABLE CONSIDERATIONS CONTROLLING THE AVAILABILITY
OF INJUNCTIVE RELIEF?  WE ANSWER ALL THREE QUESTIONS IN THE AFFIRMATIVE
AND ACCORDINGLY REVERSE THE JUDGMENT BELOW. 

        II 

NO OBLIGATION TO ARBITRATE A LABOR DISPUTE ARISES SOLELY BY
OPERATION OF LAW.  THE LAW COMPELS A PARTY TO SUBMIT HIS GRIEVANCE TO
ARBITRATION ONLY IF HE HAS CONTRACTED TO DO SO.  AT ALL TIMES MATERIAL
TO THIS CASE, THE PARTIES WERE BOUND BY THE NATIONAL BITUMINOUS COAL
WAGE AGREEMENT OF 1968 (THE AGREEMENT).  THE SECTION OF THE AGREEMENT
ENTITLED "SETTLEMENT OF LOCAL AND DISTRICT DISPUTES"  /6/  PROVIDES FOR
RESOLUTION OF GRIEVANCES BY DIRECT NEGOTIATION BETWEEN THE PARTIES AND
ULTIMATELY, SHOULD SUCH NEGOTIATIONS FAIL, FOR ARBITRATION BY AN
IMPARTIAL UMPIRE "MUTUALLY AGREED UPON BY THE OPERATOR OR OPERATORS
AFFECTED AND ... THE UNITED MINE WORKERS OF AMERICA."  THE SECTION
FURTHER STATES THAT THE "DECISION OF THE UMPIRE SHALL BE FINAL."  THIS
ARBITRATION CLAUSE GOVERNS DISPUTES "AS TO THE MEANING AND APPLICATION
OF THE PROVISIONS OF THIS AGREEMENT," DISPUTES "ABOUT MATTERS NOT
SPECIFICALLY MENTIONED IN THIS AGREEMENT," AND "ANY LOCAL TROUBLE OF
ANY KIND ARISING) AT THE MINE."  PARAGRAPH 3 OF THE "MISCELLANEOUS"
AFFIRM ... THAT ALL DISPUTES AND CLAIMS WHICH ARE NOT SETTLED BY
AGREEMENT SHALL BE SETTLED BY THE MACHINERY PROVIDED IN THE 'SETTLEMENT
OF LOCAL AND DISTRICT DISPUTES'  SECTION ...."  IT EXCEPTS FROM THE
ARBITRATION OBLIGATION ONLY THOSE DISPUTES "NATIONAL IN CHARACTER." 

THIS ARBITRATION PROVISION APPEARS SUFFICIENTLY BROAD TO ENCOMPASS
THE INSTANT DISPUTE.  THE CONTRACTUAL OBLIGATION REACHES "ANY LOCAL
TROUBLE OF ANY KIND ARISING) AT THE MINE," AND THE CONTINUED PRESENCE
IN GATEWAY MINE OF TWO PARTICULAR FOREMEN IS PLAINLY A LOCAL ISSUE.  ON
ITS FACE, THIS CONTRACTUAL LANGUAGE ADMITS OF ONLY ONE INTERPRETATION:
THAT THE AGREEMENT REQUIRED THE UNION TO SUBMIT THIS DISPUTE TO
ARBITRATION FOR RESOLUTION BY AN IMPARTIAL UMPIRE. 

THE COURT OF APPEALS AVOIDED THIS CONCLUSION BY REFERENCE TO AN
ASSUMED PUBLIC POLICY DISFAVORING ARBITRATION OF SAFETY DISPUTES.  THE
MAJORITY OF THAT COURT RECOGNIZED THAT THE USUAL FEDERAL POLICY
ENCOURAGES ARBITRATION OF LABOR DISPUTES BUT REASONED THAT THIS
PRESUMPTION OF ARBITRABILITY APPLIES ONLY TO DISAGREEMENTS OVER "WAGES,
HOURS, SENIORITY, VACATIONS AND OTHER ECONOMIC MATTERS."  466 F.2D, AT
1159.  THE COURT THOUGHT THAT SAFETY DISPUTES SHOULD BE TREATED AS SUI
GENERIS, AND CONCLUDED THAT IT SHOULD "REJECT ANY AVOIDABLE
CONSTRUCTION OF A LABOR CONTRACT AS REQUIRING FINAL DISPOSITION OF
SAFETY DISPUTES BY ARBITRATION."  /8/  ID., AT 1160.  WE DISAGREE. 

THE FEDERAL POLICY FAVORING ARBITRATION OF LABOR DISPUTES IS FIRMLY
GROUNDED IN CONGRESSIONAL COMMAND.  SECTION 203(D) OF THE LABOR
MANAGEMENT RELATIONS ACT, 29 U.S.C. 173(D), STATES IN PART: 

     "FINAL ADJUSTMENT BY A METHOD AGREED UPON BY THE PARTIES IS

  DECLARED TO BE THE DESIRABLE METHOD FOR SETTLEMENT OF GRIEVANCE

  DISPUTES ARISING OVER THE APPLICATION OR INTERPRETATION OF AN

  EXISTING COLLECTIVE-BARGAINING AGREEMENT." 

IN THE STEELWORKERS TRILOGY, /9/  THIS COURT ENUNCIATED THE NOW WELL
KNOWN PRESUMPTION OF ARBITRABILITY FOR LABOR DISPUTES: 

     "AN ORDER TO ARBITRATE THE PARTICULAR GRIEVANCE SHOULD NOT BE

  DENIED UNLESS IT MAY BE SAID WITH POSITIVE ASSURANCE THAT THE

  ARBITRATION CLAUSE IS NOT SUSCEPTIBLE OF AN INTERPRETATION THAT

  COVERS THE ASSERTED DISPUTE.  DOUBTS SHOULD BE RESOLVED IN FAVOR

  OF COVERAGE."  UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF

  NAVIGATION CO., 363 U.S. 574, 582 - 583 (1960). 

THE COURT ALSO ELABORATED THE BASIS FOR THIS POLICY.  IT NOTED THAT
COMMERCIAL ARBITRATION AND LABOR ARBITRATION HAVE DIFFERENT
OBJECTIVES.  IN THE FORMER CASE, ARBITRATION TAKES THE PLACE OF
LITIGATION, WHILE IN THE LATTER "ARBITRATION IS THE SUBSTITUTE FOR
INDUSTRIAL STRIFE."  ID., AT 578.  A COLLECTIVE-BARGAINING AGREEMENT
CANNOT DEFINE EVERY MINUTE ASPECT OF THE COMPLEX AND CONTINUING
RELATIONSHIP BETWEEN THE PARTIES.  ARBITRATION PROVIDES A METHOD FOR
RESOLVING THE UNFORESEEN DISAGREEMENTS THAT INEVITABLY ARISE.  AND IN
RESOLVING SUCH DISPUTES, THE LABOR ARBITRATOR NECESSARILY AND
APPROPRIATELY HAS RESORT TO CONSIDERATIONS FOREIGN TO THE COURTS: 

     "THE LABOR ARBITRATOR'S SOURCE OF LAW IS NOT CONFINED TO THE

EXPRESS PROVISIONS OF THE CONTRACT, AS THE INDUSTRIAL COMMON

  LAW--THE PRACTICES OF THE INDUSTRY AND THE SHOP--IS EQUALLY A

  PART OF THE COLLECTIVE BARGAINING AGREEMENT ALTHOUGH NOT

  EXPRESSED IN IT.  THE LABOR ARBITRATOR IS USUALLY CHOSEN BECAUSE

  OF THE PARTIES' CONFIDENCE IN HIS KNOWLEDGE OF THE COMMON LAW OF

  THE SHOP AND THEIR TRUST IN HIS PERSONAL JUDGMENT TO BRING TO

  BEAR CONSIDERATIONS WHICH ARE NOT EXPRESSED IN THE CONTRACT AS

  CRITERIA FOR JUDGMENT.  THE PARTIES EXPECT THAT HIS JUDGMENT OF A

  PARTICULAR GRIEVANCE WILL REFLECT NOT ONLY WHAT THE CONTRACT SAYS

BUT, INSOFAR AS THE COLLECTIVE BARGAINING AGREEMENT PERMITS, SUCH

  FACTORS AS THE EFFECT UPON PRODUCTIVITY OF A PARTICULAR RESULT,

  ITS CONSEQUENCE TO THE MORALE OF THE SHOP, HIS JUDGMENT WHETHER

  TENSIONS WILL BE HEIGHTENED OR DIMINISHED.  FOR THE PARTIES'

  OBJECTIVE IN USING THE ARBITRATION PROCESS IS PRIMARILY TO

  FURTHER THEIR COMMON GOAL OF UNINTERRUPTED PRODUCTION UNDER THE

  AGREEMENT, TO MAKE THE AGREEMENT SERVE THEIR SPECIALIZED NEEDS." 

  ID., AT 581 - 582. 

WE THINK THESE REMARKS ARE AS APPLICABLE TO LABOR DISPUTES TOUCHING
THE SAFETY OF THE EMPLOYEES AS TO OTHER VARIETIES OF DISAGREEMENT. 
CERTAINLY INDUSTRIAL STRIFE MAY AS EASILY RESULT FROM UNRESOLVED
CONTROVERSIES ON SAFETY MATTERS AS FROM THOSE ON OTHER SUBJECTS, WITH
THE SAME UNHAPPY CONSEQUENCES OF LOST PAY, CURTAILED PRODUCTION, AND
ECONOMIC INSTABILITY.  MOREOVER, THE SPECIAL EXPERTISE OF THE LABOR
ARBITRATOR, WITH HIS KNOWLEDGE OF THE COMMON LAW OF THE SHOP, IS AS
IMPORTANT TO THE ONE CASE AS TO THE OTHER, AND THE NEED TO CONSIDER
SUCH FACTORS AS PRODUCTIVITY AND WORKER MORALE IS AS READILY APPARENT. 

THE COURT OF APPEALS MAJORITY FEARED THAT AN ARBITRATOR MIGHT BE TOO
GRUDGING IN HIS APPRECIATION OF THE WORKERS' INTEREST IN THEIR OWN
SAFETY.  WE SEE LITTLE JUSTIFICATION FOR THE COURT'S ASSUMPTION,
ESPECIALLY SINCE THE PARTIES ARE ALWAYS FREE TO CHOOSE AN ARBITRATOR
WHOSE KNOWLEDGE AND JUDGMENT THEY TRUST.  WE ALSO DISAGREE WITH THE
IMPLICIT ASSUMPTION THAT THE ALTERNATIVE TO ARBITRATION HOLDS GREATER
PROMISE FOR THE PROTECTION OF EMPLOYEES.  RELEGATING SAFETY DISPUTES TO
THE ARENA OF ECONOMIC COMBAT OFFERS NO GREATER ASSURANCE THAT THE
ULTIMATE RESOLUTION WILL ENSURE EMPLOYEE SAFETY.  INDEED, THE SAFETY OF
THE WORKSHOP WOULD THEN DEPEND ON THE RELATIVE ECONOMIC STRENGTH OF THE
PARTIES RATHER THAN ON AN INFORMED AND IMPARTIAL ASSESSMENT OF THE
FACTS.     WE THEREFORE CONCLUDE THAT THE "PRESUMPTION OF
ARBITRABILITY"  ANNOUNCED IN THE STEELWORKERS TRILOGY APPLIES TO SAFETY
DISPUTES, AND THAT THE DISPUTE IN THE INSTANT CASE IS COVERED BY THE
ARBITRATION CLAUSE IN THE PARTIES'  COLLECTIVE-BARGAINING AGREEMENT. 
/10/

        III 

THE SECOND QUESTION IS WHETHER THE DISTRICT COURT HAD AUTHORITY TO
ENJOIN THE WORK STOPPAGE.  THE ANSWER DEPENDS ON WHETHER THE UNION WAS
UNDER A CONTRACTUAL DUTY NOT TO STRIKE.  IN BOYS MARKETS, INC. V.
RETAIL CLERKS UNION, 398 U.S. 235 (1970), THE COURT CONSIDERED THE
PROPER ACCOMMODATION BETWEEN THE LITERAL TERMS OF 4 OF THE NORRIS
LAGUARDIA ACT /11/  AND THE SUBSEQUENTLY ENACTED PROVISIONS OF 301(A)
OF THE LABOR MANAGEMENT RELATIONS ACT.  /12/  THE COURT NOTED THE SHIFT
IN CONGRESSIONAL EMPHASIS "FROM PROTECTION OF THE NASCENT LABOR
MOVEMENT TO THE ENCOURAGEMENT OF COLLECTIVE BARGAINING AND TO
ADMINISTRATIVE TECHNIQUES FOR THE PEACEFUL RESOLUTION OF INDUSTRIAL
DISPUTES."  398 U.S., AT 251.  IT CONCLUDED THAT 301 (A) EMPOWERS A
FEDERAL COURT TO ENJOIN VIOLATIONS OF A CONTRACTUAL DUTY NOT TO
STRIKE. 

ALTHOUGH THE COLLECTIVE-BARGAINING AGREEMENT IN BOYS MARKETS
CONTAINED AN EXPRESS NO-STRIKE CLAUSE, /13/  INJUNCTIVE RELIEF ALSO MAY
BE GRANTED ON THE BASIS OF AN IMPLIED UNDERTAKING NOT TO STRIKE.  IN
TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S. 95 (1962), THE COURT HELD
THAT A CONTRACTUAL COMMITMENT TO SUBMIT DISAGREEMENTS TO FINAL AND
BINDING ARBITRAION GIVES RISE TO AN IMPLIED OBLIGATION NOT TO STRIKE
OVER SUCH DISPUTES.  /14/  INDEED, THE STRONG FEDERAL POLICY FAVORING
ARBITRATION OF LABOR DISPUTES WAS THE LINCHPIN OF THIS COURT'S
REASONING IN BOYS MARKETS.  DENIAL OF ALL EQUITABLE RELIEF FOR BREACHES
OF NO-STRIKE OBLIGATIONS WOULD HAVE CARRIED "DEVASTATING IMPLICATIONS
FOR THE ENFORCEABILITY OF ARBITRATION AGREEMENTS."  398 U.S., AT 247. 
AS MR. JUSTICE BRENNAN STATED FOR THE COURT IN THAT CASE: 

     "(A) NO-STRIKE OBLIGATION, EXPRESS OR IMPLIED, IS THE QUID PRO

  QUO FOR AN UNDERTAKING BY THE EMPLOYER TO SUBMIT GRIEVANCE

  DISPUTES TO THE PROCESS OF ARBITRATION....  ANY INCENTIVE FOR

  EMPLOYERS TO ENTER INTO SUCH AN ARRANGEMENT IS NECESSARILY

  DISSIPATED IF THE PRINCIPAL AND MOST EXPEDITIOUS METHOD BY WHICH

  THE NO-STRIKE OBLIGATION CAN BE ENFORCED IS ELIMINATED."  ID., AT

  248.  (CITATION OMITTED.) 

THUS, AN ARBITRATION AGREEMENT IS USUALLY LINKED WITH A CONCURRENT
NO-STRIKE OBLIGATION, BUT THE TWO ISSUES REMAIN ANALYTICALLY DISTINCT. 
ULTIMATELY, EACH DEPENDS ON THE INTENT OF THE CONTRACTING PARTIES.  IT
WOULD BE UNUSUAL, BUT CERTAINLY PERMISSIBLE, FOR THE PARTIES TO AGREE
TO A BROAD MANDATORY ARBITRATION PROVISION YET EXPRESSLY NEGATE ANY
IMPLIED NO-STRIKE OBLIGATION.  SUCH A CONTRACT WOULD REINSTATE THE
SITUATION COMMONLY EXISTING BEFORE OUR DECISION IN BOYS MARKETS. 
ABSENT AN EXPLICIT EXPRESSION OF SUCH AN INTENTION, HOWEVER, THE
AGREEMENT TO ARBITRATE AND THE DUTY NOT TO STRIKE SHOULD BE CONSTRUED
AS HAVING COTERMINOUS APPLICATION. 

IN THE PRESENT CASE, THE COURT OF APPEALS IDENTIFIED TWO PROVISIONS
WHICH IT THOUGHT EXCEPTED SAFETY DISPUTES FROM THE GENERAL NO-STRIKE
OBLIGATION.  THE FIRST IS (E) OF THE COLLECTIVE-BARGAINING AGREEMENT,
WHICH PROVIDES FOR A UNION MINE SAFETY COMMITTEE AT EACH MINE.  AS THIS
THE RELEVANT PROVISIONS IN FULL: 

     "THE MINE SAFETY COMMITTEE MAY INSPECT ANY MINE DEVELOPMENT OR

  EQUIPMENT USED IN PRODUCING COAL.  IF THE COMMITTEE BELIEVES

  CONDITIONS FOUND ENDANGER THE LIVES AND BODIES OF THE MINE

  WORKERS, IT SHALL REPORT ITS FINDINGS AND RECOMMENDATIONS TO THE

  MANAGEMENT.  IN THOSE SPECIAL INSTANCES WHERE THE COMMITTEE

  BELIEVES AN IMMEDIATE DANGER EXISTS AND THE COMMITTEE RECOMMENDS

  THAT THE MANAGEMENT REMOVE ALL MINE WORKERS FROM THE UNSAFE AREA,

  THE OPERATOR IS REQUIRED TO FOLLOW THE RECOMMENDATION OF THE

  COMMITTEE." 

     "IF THE SAFETY COMMITTEE IN CLOSING DOWN AN UNSAFE AREA ACTS

  ARBITRARILY AND CAPRICIOUSLY, MEMBERS OF SUCH COMMITTEE MAY BE

  REMOVED FROM THE COMMITTEE.  GRIEVANCES THAT MAY ARISE AS A

  RESULT OF A REQUEST FOR REMOVAL OF A MEMBER OF THE SAFETY

  COMMITTEE UNDER THIS SECTION SHALL BE HANDLED IN ACCORDANCE WITH

THE PROVISIONS PROVIDING FOR SETTLEMENT OF DISPUTES."  APP. 12A. 

THE UNION CONTENDS THAT THIS PROVISION RESERVES TO THE WORKERS THE
RIGHT TO STRIKE OVER SAFETY DISPUTES AND ALSO THAT THE COMMITTEE'S
DETERMINATION OF "IMMEDIATE DANGER" MAY BE WHOLLY SUBJECTIVE AND
WITHOUT FOUNDATION IN FACT.  IN SHORT, THE SAFETY COMMITTEE MAY OBJECT
TO ANY ASPECT OF MINE OPERATION AS AN "IMMEDIATE DANGER" AND CALL THE
WORKERS OFF THE JOB TO FORCE WHATEVER CHANGES IT PROPOSES.  THE UNION
FURTHER ARGUES THAT SINCE THE EXERCISE OF THIS OPTION CANNOT CONSTITUTE
A BREACH OF THE COLLECTIVE-BARGAINING AGREEMENT, THE DISTRICT COURT HAD
NO WRONG TO ENJOIN. 

WE NEED NOT DECIDE WHETHER (E) IS SUBJECT TO SUCH AN EXPANSIVE
READING, FOR, AS THE DISTRICT COURT FOUND, THAT SECTION WAS NEVER
INVOKED IN THIS CONTROVERSY.  THE SAFETY COMMITTEE DID INSPECT THE MINE
TO DETERMINE THE CAUSE OF THE VENTILATION FAILURE, BUT THERE WAS NO
SHOWING THAT IT EVER REPORTED FINDINGS OR MADE RECOMMENDATIONS TO THE
COMPANY MANAGEMENT.  NOR WAS THERE ANY SHOWING THAT THE COMMITTEE FOUND
CONDITIONS DANGEROUS TO THE "LIVES AND BODIES OF THE MINE WORKERS" OR
WHICH, IF ANY, OF ITS MEMBERS FORMED THE REQUISITE BELIEF IN THE
EXISTENCE OF "AN IMMEDIATE DANGER." 

THE COURT OF APPEALS MAJORITY APPARENTLY BELIEVED THAT THE VOTE BY
THE LOCAL MEMBERSHIP, THE BODY SUPERIOR TO THE UNION SAFETY COMMITTEE,
CONSTITUTED SUBSTANTIAL COMPLIANCE WITH THE PURPOSE AND INTENT OF (E)
AND OBVIATED ANY NEED FOR COMPLIANCE WITH THE FORMAL PROCEDURE.  AS A
MATTER OF SIMPLE CONTRACTUAL INTERPRETATION, WE THINK THAT PROPOSITION
DOUBTFUL.  UNDER THE UNION'S CONSTRUCTION OF (E), THE COMMITTEE'S GOOD
FAITH BELIEF IN THE EXISTENCE OF AN IMMEDIATE DANGER, NO MATTER HOW
UNFOUNDED THAT VIEW, IS CONCLUSIVE.  THE MANAGEMENT'S ONLY RECOURSE
AGAINST ARBITRARY AND CAPRICIOUS DECISIONS BY THE COMMITTEE IS TO SEEK
REMOVAL OF THE OFFENDING MEMBERS.  CIRCUMVENTION OF THE PROCEDURES OF
(E), INCLUDING A FORMAL VOTE BY THE COMMITTEE MEMBERS, THUS REMOVES THE
ONLY DETERRENT TO UNREASONABLE ACTION BY THE COMMITTEE.  GIVEN THIS
CIRCUMSTANCE, ONE WOULD NOT LIGHTLY ASSUME THAT FAILURE TO FOLLOW THE
SPECIFIC PROCEDURES OUTLINED IN (E) IS SOMEHOW DE MINIMIS.  IN ANY
EVENT, WHETHER THE UNION PROPERLY INVOKED THIS PROVISION IS A
SUBSTANTIAL QUESTION OF CONTRACTUAL INTERPRETATION, AND THE COLLECTIVE
BARGAINING AGREEMENT EXPLICITLY COMMITS TO RESOLUTION BY AN IMPARTIAL
UMPIRE ALL DISAGREEMENTS "AS TO THE MEANING AND APPLICATION OF THE
PROVISIONS OF THIS AGREEMENT."  /15/ 

THE COURT OF APPEALS MAJORITY ALSO BASED ITS DENIAL OF INJUNCTIVE
RELIEF ON 502 OF THE LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C. 143,
WHICH PROVIDES IN PART: 

     "(NOR SHALL THE QUITTING OF LABOR BY AN EMPLOYEE OR EMPLOYEES

  IN GOOD FAITH BECAUSE OF ABNORMALLY DANGEROUS CONDITIONS FOR WORK

  AT THE PLACE OF EMPLOYMENT OF SUCH EMPLOYEE OR EMPLOYEES BE

DEEMED A STRIKE UNDER THIS CHAPTER." 

THIS SECTION PROVIDES A LIMITED EXCEPTION TO AN EXPRESS OR IMPLIED
NO-STRIKE OBLIGATION.  THE COURT OF APPEALS HELD THAT "A REFUSAL TO
WORK BECAUSE OF GOOD FAITH APPREHENSION OF PHYSICAL DANGER IS PROTECTED
ACTIVITY AND NOT ENJOINABLE, EVEN WHERE THE EMPLOYEES HAVE SUBSCRIBED
TO A COMPREHENSIVE NO-STRIKE CLAUSE IN THEIR LABOR CONTRACT."  466
F.2D, AT 1160.  WE AGREE WITH THE MAIN THRUST OF THIS STATEMENT--THAT A
WORK STOPPAGE CALLED SOLELY TO PROTECT EMPLOYEES FROM IMMEDIATE DANGER
IS AUTHORIZED BY 502 AND CANNOT BE THE BASIS FOR EITHER A DAMAGES AWARD
OR A BOYS MARKETS INJUNCTION. 

THE COURT OF APPEALS MAJORITY ERRED, HOWEVER, IN CONCLUDING THAT AN
HONEST BELIEF, NO MATTER HOW UNJUSTIFIED, IN THE EXISTENCE OF
"ABNORMALLY DANGEROUS CONDITIONS FOR WORK" NECESSARILY INVOKES THE
PROTECTION OF 502.  IF THE COURTS REQUIRE NO OBJECTIVE EVIDENCE THAT
SUCH CONDITIONS ACTUALLY OBTAIN, THEY FACE A WHOLLY SPECULATIVE INQUIRY
INTO THE MOTIVES OF THE WORKERS.  AS JUDGE ROSENN POINTED OUT IN HIS
DISSENT FROM THE JUDGMENT BELOW, THE DIFFICULTY OCCASIONED BY THIS VIEW
IS ESPECIALLY APPARENT WHERE, AS HERE, THE CLAIM CONCERNS NOT SOME
IDENTIFIABLE, PRESENTLY EXISTING THREAT TO THE EMPLOYEES' SAFETY, BUT
RATHER A GENERALIZED DOUBT IN THE COMPETENCE AND INTEGRITY OF COMPANY
SUPERVISORS.  /16/  ANY EMPLOYEE WHO BELIEVES A SUPERVISOR OR FELLOW
WORKER INCOMPETENT AND WHO HONESTLY FEARS THAT AT SOME FUTURE TIME HE
MAY COMMIT SOME UNSPECIFIED MISTAKE CREATING A SAFETY HAZARD COULD
DEMAND HIS COLLEAGUE'S DISCHARGE AND WORK OFF THE JOB DESPITE THE
CONTRACTUAL AGREEMENT NOT TO DO SO.  ABSENT THE MOST EXPLICIT STATUTORY
COMMAND, WE ARE UNWILLING TO CONCLUDE THAT CONGRESS INTENDED THE PUBLIC
POLICY FAVORING ARBITRATION AND PEACEFUL RESOLUTION OF LABOR DISPUTES
TO BE CIRCUMVENTED BY SO SLENDER A THREAD AS SUBJECTIVE JUDGMENT,
HOWEVER HONEST IT MAY BE.  WE AGREE WITH JUDGE ROSENN THAT A UNION
SEEKING TO JUSTIFY A CONTRACTUALLY PROHIBITED WORK STOPPAGE UNDER 502
MUST PRESENT "ASCERTAINABLE, OBJECTIVE EVIDENCE SUPPORTING ITS
CONCLUSION THAT AN ABNORMALLY DANGEROUS CONDITION FOR WORK EXISTS." 
466 F.2D, AT 1162.  WE FIND THIS READING OF THE STATUTE CONSISTENT BOTH
WITH COMMON SENSE AND WITH ITS PREVIOUS APPLICATION.  SEE, E.G.,
PHILADELPHIA MARINE TRADE ASSN. V. NLRB, 330 F.2D 492 (CA3), CERT.
DENIED SUB NOM. INTERNATIONAL LONGSHOREMEN'S ASSN. V. NLRB, 379 U.S.
833 AND 841 (1964); NLRB V. FRUIN-COLNON CONSTRUCTION CO., 330 F.2D 885
(CA8 1964); NLRB V. KNIGHT MORLEY CORP., 251 F.2D 753 (CA6 1957), CERT.
DENIED, 357 U.S. 927 (1958); REDWING CARRIERS, INC., 130 N.L.R.B. 1208
(1961), ENF'D AS MODIFIED, SUB NOM. TEAMSTERS LOCAL 79 V. NLRB, 117
U.S. APP. D.C. 84, 325 F.2D 1011 (1963), CERT. DENIED, 377 U.S. 905
(1964). 

        IV 

ON THE FACTS OF THIS CASE, WE THINK IT CLEAR THAT 502 DID NOT
DEPRIVE THE DISTRICT COURT OF AUTHORITY TO ENFORCE THE CONTRACTUAL NO
STRIKE OBLIGATION.  THE UNION INFERRED FROM THE FOREMEN'S FAILURE TO
RECORD THE REDUCED AIRFLOW ON THE MORNING OF APRIL 15 THAT THEIR RETURN
TO THE JOB CREATED AN ABNORMALLY DANGEROUS WORKING CONDITION.  ONE MAY
DOUBT WHETHER THIS ASSERTION ALONE COULD SUFFICE TO INVOKE THE SPECIAL
PROTECTION OF 502.  IN ANY EVENT, THE DISTRICT COURT RESOLVED THE ISSUE
BY EXPRESSLY CONDITIONING INJUNCTIVE RELIEF ON THE SUSPENSION OF THE
TWO FOREMEN PENDING DECISION BY THE IMPARTIAL UMPIRE. 

FOR SIMILAR REASONS, IT IS ALSO EVIDENT THAT INJUNCTIVE RELIEF WAS
APPROPRIATE IN THE PRESENT CASE UNDER THE EQUITABLE PRINCIPLES SET
FORTH IN BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398 U.S., AT 254. 
THE DISTRICT COURT FOUND THAT THE UNION'S CONTINUED BREACH OF ITS NO
STRIKE OBLIGATION WOULD CAUSE IRREPARABLE HARM TO THE PETITIONER.  IT
ELIMINATED ANY SAFETY ISSUE BY SUSPENDING THE TWO FOREMEN PENDING A
FINAL ARBITRAL DECISION.  IN THESE CIRCUMSTANCES, WE CANNOT SAY THAT
THE DISTRICT COURT ABUSED ITS DISCRETION. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  WHILE THIS REDUCED AIRFLOW UNDOUBTEDLY INCREASED THE
ACCUMULATION OF COAL DUST AND FLAMMABLE GAS IN THE MINE, IT STILL
EXCEEDED THE STATE VENTILATION REQUIREMENT OF 6,000 CUBIC FEET PER
MINUTE, PA. BITUMINOUS COAL MINE ACT, PUB. L. 659 (1961), PA. STAT.
ANN., TIT. 52, 701 - 242 (B) (1966), AND THE FEDERAL REQUIREMENT OF
9,000 CUBIC FEET PER MINUTE, FEDERAL COAL MINE HEALTH AND SAFETY ACT OF
1969, 303(B), 83 STAT. 767, 30 U.S.C. 863(B). 

/2/  SECTION 303(D)(1) OF THE FEDERAL COAL MINE HEALTH AND SAFETY
ACT OF 1969, 30 U.S.C. 863(D)(1), REQUIRES SUCH INSPECTIONS WITHIN
THREE HOURS IMMEDIATELY PRIOR TO THE BEGINNING OF ANY SHIFT. 

/3/  AFTER ITS INVESTIGATION, THE DEPARTMENT CONCLUDED THAT: 

"IN VIEW OF THE SATISFACTORY RECORD AND GOOD PERFORMANCE OF THESE
FOREMAN (SIC) IN THE PAST AND THE PENDING LEGAL ACTION, WE FEEL THAT NO
FURTHER ACTION SHOULD BE TAKEN IN THIS MATTER.  THE COAL COMPANY IS AT
LIBERTY TO RETURN THE THREE (3) ASSISTANT FOREMEN (SIC) TO WORK IF IT
SO DESIRES."  APP. 16A - 17A. 

/4/  THE DISTRICT COURT FOUND THAT THE PRESENT WORK STOPPAGE WAS
OCCASIONED BY A SAFETY DISPUTE OVER THE REINSTATEMENT OF THE SUSPENDED
FOREMEN RATHER THAN BY AN ECONOMIC DISPUTE OVER REPORTING PAY FOR APRIL
15. 

/5/  WHILE THE APPEAL WAS PENDING AND PRIOR TO THE COURT OF APPEALS'
DECISION, THE IMPARTIAL UMPIRE RENDERED HIS DECISION IN FAVOR OF THE
COMPANY AND DETERMINED, INTER ALIA, THAT THE TWO FOREMEN SHOULD BE
PERMITTED TO RETURN TO WORK.  466 F.2D 1157, 1159. 

/6/  THIS SECTION PROVIDES, IN RELEVANT PART: 

"SHOULD DIFFERENCES ARISE BETWEEN THE MINE WORKERS AND THE OPERATORS
AS TO THE MEANING AND APPLICATION OF THE PROVISIONS OF THIS AGREEMENT,
OR SHOULD DIFFERENCES ARISE ABOUT MATTERS NOT SPECIFICALLY MENTIONED IN
THIS AGREEMENT, OR SHOULD ANY LOCAL TROUBLE OF ANY KIND ARISE AT THE
MINE, AN EARNEST EFFORT SHALL BE MADE TO SETTLE SUCH DIFFERENCES
IMMEDIATELY:  (THE PARTIES WILL NOT BE REPRESENTED BY LEGAL COUNSEL AT
ANY OF THE STEPS BELOW.) 

"1.  BETWEEN THE AGRIEVED PARTY AND THE MINE MANAGEMENT." 

"2.  THROUGH THE MANAGEMENT OF THE MINE AND THE MINE COMMITTEE." 

"3.  THROUGH DISTRICT REPRESENTATIVES OF THE UNITED MINE WORKERS OF
AMERICA AND A COMMISSIONER REPRESENTATIVE (WHERE EMPLOYED) OF THE COAL
COMPANY." 

"4.  BY A BOARD CONSISTING OF FOUR MEMBERS, TWO OF WHOM SHALL BE
DESIGNATED BY THE MINE WORKERS AND TWO BY THE OPERATORS.  NEITHER THE
MINE WORKERS'  REPRESENTATIVES ON THE BOARD NOR THE OPERATORS'
REPRESENTATIVES ON THE BOARD SHALL BE THE SAME PERSONS WHO PARTICIPATED
IN STEPS (1), (2), OR (3) OF THIS PROCEDURE."     "5.  SHOULD THE BOARD
FAIL TO AGREE THE MATTER SHALL, WITHIN TWENTY (20) DAYS AFTER DECISION
BY THE BOARD, BE REFERRED TO AN UMPIRE TO BE MUTUALLY AGREED UPON BY
THE OPERATOR OR OPERATORS AFFECTED AND BY THE DULY DESIGNATED
REPRESENTATIVES OF THE UNITED MINE WORKERS OF AMERICA, AND THE UMPIRE
SO AGREED UPON SHALL EXPEDITIOUSLY AND WITHOUT DELAY DECIDE SAID CASE. 
THE DECISION OF THE UMPIRE SHALL BE FINAL.  EXPENSES AND SALARY
INCIDENT TO THE SERVICES OF AN UMPIRE SHALL BE PAID EQUALLY BY THE
OPERATOR OR OPERATORS AFFECTED AND BY THE MINE WORKERS." 

"A DECISION REACHED AT ANY STAGE OF THE PROCEEDINGS ABOVE OUTLINED
SHALL BE BINDING ON BOTH PARTIES HERETO AND SHALL NOT BE SUBJECT TO
REOPENING BY ANY OTHER PARTY OR BRANCH OF EITHER ASSOCIATION EXCEPT BY
MUTUAL AGREEMENT."  APP. 13A - 14A. 

/7/  PARAGRAPH 3 PROVIDES: 

"THE UNITED MINE WORKERS OF AMERICA AND THE OPERATORS AGREE AND
AFFIRM THAT THEY WILL MAINTAIN THE INTEGRITY OF THIS CONTRACT AND THAT
ALL DISPUTES AND CLAIMS WHICH ARE NOT SETTLED BY AGREEMENT SHALL BE
SETTLED BY THE MACHINERY PROVIDED IN THE 'SETTLEMENT OF LOCAL AND
DISTRICT DISPUTES' SECTION OF THIS AGREEMENT UNLESS NATIONAL IN
CHARACTER IN WHICH EVENT THE PARTIES SHALL SETTLE SUCH DISPUTES BY FREE
COLLECTIVE BARGAINING AS HERETOFORE PRACTICED IN THE INDUSTRY, IT BEING
THE PURPOSE OF THIS PROVISION TO PROVIDE FOR THE SETTLEMENT OF ALL SUCH
DISPUTES AND CLAIMS THROUGH THE MACHINERY IN THIS CONTRACT PROVIDED AND
BY COLLECTIVE BARGAINING WITHOUT RECOURSE TO THE COURTS."  APP. 15A. 

/8/  IN FINDING A PUBLIC POLICY DISFAVORING ARBITRATION OF SAFETY
DISPUTES, THE COURT REASONED AS FOLLOWS: 

"CONSIDERATIONS OF ECONOMIC PEACE THAT FAVOR ARBITRATION OF ORDINARY
DISPUTES HAVE LITTLE WEIGHT HERE.  MEN ARE NOT WONT TO SUBMIT MATTERS
OF LIFE OR DEATH TO ARBITRATION AND NO ENLIGHTENED SOCIETY ENCOURAGES,
MUCH LESS REQUIRES, THEM TO DO SO.  IF EMPLOYEES BELIEVE THAT
CORRECTIBLE CIRCUMSTANCES ARE UNNECESSARILY ADDING TO THE NORMAL
DANGERS OF THEIR HAZARDOUS EMPLOYMENT, THERE IS NO SOUND REASON FOR
REQUIRING THEM TO SUBORDINATE THEIR JUDGMENT TO THAT OF AN ARBITRATOR,
HOWEVER IMPARTIAL HE MAY BE.  THE ARBITRATOR IS NOT STAKING HIS LIFE ON
HIS IMPARTIAL DECISION.  IT SHOULD NOT BE THE POLICY OF THE LAW TO
FORCE THE EMPLOYEES TO STAKE THEIRS ON HIS JUDGMENT."  466 F.2D, AT
1160. 

WE FIND THIS ANALYSIS UNPERSUASIVE FOR THE REASONS STATED IN THIS

THE COURT OF APPEALS ALSO RELIED ON 502 OF THE LABOR MANAGEMENT
RELATIONS ACT, 29 U.S.C. 143.  SECTION 502 PROVIDES THAT "THE QUITTING
OF LABOR BY AN EMPLOYEE OR EMPLOYEES IN GOOD FAITH BECAUSE OF
ABNORMALLY DANGEROUS CONDITIONS FOR WORK" SHALL NOT "BE DEEMED A STRIKE
UNDER THIS CHAPTER."  ON ITS FACE, THIS SECTION APPEARS TO BEAR MORE
DIRECTLY ON THE SCOPE OF THE NO-STRIKE OBLIGATION THAN ON THE
ARBITRABILITY OF SAFETY DISPUTES.  INDEED, THERE IS NOTHING IN THE
LEGISLATIVE HISTORY TO SUGGEST THAT 502 WAS INTENDED AS A LIMIT ON
ARBITRATION.  SEE 1 LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, PP. 29, 156, 290, 436, 573, 895 (G.P.O. 1948). 
FOR THIS REASON, WE RESERVE OUR DISCUSSION OF 502 UNTIL PART III OF
THIS OPINION.  TO THE EXTENT THAT 502 MIGHT BE RELEVANT TO THE ISSUE OF
ARBITRABILITY, WE FIND THAT THE CONSIDERATIONS FAVORING ARBITRABILITY
OUTWEIGH THE AMBIGUOUS IMPORT OF THAT SECTION IN THE PRESENT CONTEXT. 

/9/  UNITED STEELWORKERS OF AMERICA V. AMERICAN MFG. CO., 363 U.S.
564 (1960); UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF NAVIGATION
CO., 363 U.S. 574 (1960); UNITED STEELWORKERS OF AMERICA V. ENTERPRISE
WHEEL & CAR CORP., 363 U.S. 593 (1960). 

/10/  THE COURT OF APPEALS ALSO FOUND SUPPORT FOR ITS REFUSAL TO
ORDER ARBITRATION IN (E) OF THE COLLECTIVE-BARGAINING AGREEMENT. 
INSPECT MINE FACILITIES AND EQUIPMENT AND TO REPORT ITS FINDINGS TO THE
MANAGEMENT.  IF THE COMMITTEE FINDS AN "IMMEDIATE DANGER," IT MAY MAKE
A BINDING RECOMMENDATION TO REMOVE ALL WORKERS FROM THE UNSAFE AREA. 

ALTHOUGH THE COURT OF APPEALS DID NOT STATE THAT (E) WAS AN EXPRESS
EXCEPTION TO THE ARBITRATION CLAUSE, IT EVIDENTLY BELIEVED THAT THE
AGAINST ARBITRABILITY.  HOWEVER, AS THE COURT STATED IN UNITED
STEELWORKERS OF AMERICA V. WARRIOR & GULF NAVIGATION CO., SUPRA,
"(DOUBTS SHOULD BE RESOLVED IN FAVOR OF COVERAGE."  363 U.S., AT 583. 
THUS, "(IN THE ABSENCE OF ANY EXPRESS PROVISION EXCLUDING A PARTICULAR
GRIEVANCE FROM ARBITRATION, WE THINK ONLY THE MOST FORCEFUL EVIDENCE OF
A PURPOSE TO EXCLUDE THE CLAIM FROM ARBITRATION CAN PREVAIL,
PARTICULARLY WHERE, AS HERE, THE EXCLUSION CLAUSE IS VAGUE AND THE
ARBITRATION CLAUSE QUITE BROAD."  ID., AT 584 - 585.  SINCE (E) CLEARLY
DOES NOT CONSTITUTE AN EXPRESS EXCEPTION TO THE ARBITRATION CLAUSE, IT
FOLLOWS THAT THE SAFETY DISPUTE IN THE INSTANT CASE MUST BE DEEMED TO
FALL WITHIN THE BROAD ARBITRATION CLAUSE. 

THE DISSENT MAINTAINS THAT THE FEDERAL COAL MINE HEALTH AND SAFETY
ACT OF 1969, 83 STAT. 742, 30 U.S.C. 801 ET SEQ., PRE-EMPTS THE FIELD
AND "DISPLACES) ALL AGREEMENTS TO ARBITRATE SAFETY CONDITIONS."  POST,
AT 394.  RESPONDENTS HAVE NOT MADE THIS CONTENTION, AND A FAIR READING
OF THE ACT DISCLOSES NO CONGRESSIONAL INTENTION, EITHER EXPRESS OR
IMPLIED, TO ACCOMPLISH SUCH A DRASTIC RESULT. 

/11/  "NO COURT OF THE UNITED STATES SHALL HAVE JURISDICTION TO
ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT INJUNCTION IN ANY
CASE INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE TO PROHIBIT ANY
PERSON OR PERSONS PARTICPATING OR INTERESTED IN SUCH DISPUTE (AS THESE
TERMS ARE HEREIN DEFINED) FROM DOING, WHETHER SINGLY OR IN CONCERT, ANY
OF THE FOLLOWING ACTS: 

"(A) CEASING OR REFUSING TO PERFORM ANY WORK OR TO REMAIN IN ANY
RELATION OF EMPLOYMENT...."  47 STAT. 70, 29 U.S.C. 104. 

/12/  "SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THIS CHAPTER, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES."  29 U.S.C. 185(A). 

/13/  398 U.S., AT 239 N. 3. 

/14/  LUCAS FLOUR INVOLVED A DAMAGES ACTION FOR BREACH OF THE
IMPLIED NO-STRIKE OBLIGATION, WHILE THE PRESENT CASE INVOLVES
INJUNCTIVE RELIEF.  THE POLICY REASONS FAVORING THE AVAILABILITY OF
INJUNCTIVE RELIEF, HOWEVER, ARE EQUALLY COMPELLING.  AS THE COURT
STATED IN BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398 U.S. 235, 248
(1970): 

"(AN AWARD OF DAMAGES AFTER A DISPUTE HAS BEEN SETTLED IS NO
SUBSITUTE FOR AN IMMEDIATE HALT TO AN ILLEGAL STRIKE.  FURTHERMORE, AN
ACTION FOR DAMAGES PROSECUTED DURING OR AFTER A LABOR DISPUTE WOULD
ONLY TEND TO AGGRAVATE INDUSTRIAL STRIFE AND DELAY AN EARLY RESOLUTION
OF THE DIFFICULTIES BETWEEN EMPLOYER AND UNION." 

/15/  RESPONDENTS ALSO ARGUE THAT PARAGRAPH 1 OF THE "MISCELLANEOUS"
DUTY.  PARAGRAPH 1 PROVIDES: 

1.  ANY AND ALL PROVISIONS IN EITHER THE APPALACHIAN JOINT WAGE
AGREEMENT OF JUNE 19, 1941, OR THE NATIONAL BITUMINOUS COAL WAGE
AGREEMENT OF APRIL 11, 1945, CONTAINING ANY 'NO STRIKE' OR 'PENALTY'
CLAUSE OR CLAUSES OR ANY CLAUSE DENOMINATED 'ILLEGAL SUSPENSION OF
WORK' ARE HEREBY RESCINDED, CANCELLED, ABROGATED AND MADE NULL AND
VOID."  APP. 14A. 

THIS PARAGRAPH EFFECTIVELY RESCINDS CERTAIN NO-STRIKE CLAUSES IN TWO
PRIOR AGREEMENTS.  IT DOES NOT, HOWEVER, PURPORT TO NEGATE ANY NO
STRIKE DUTY CREATED BY THE PRESENT AGREEMENT.  AS WE HAVE NOTED, THE
AGREEMENT MAKES ARBITRATION THE EXCLUSIVE AND COMPULSORY MEANS FOR
FINALLY RESOLVING DISPUTES.  UNDER TEAMSTERS LOCAL V. LUCAS FLOUR CO.,
369 U.S. 95 (1962), THIS ARBITRATION PROVISION GIVES RISE TO AN IMPLIED
NO-STRIKE DUTY.  WE DO NOT THINK THAT PARAGRAPH 1 CAN BE FAIRLY
CONSTRUED AS AN EXCEPTION TO THAT NO-STRIKE DUTY.  CF. LEWIS V.
BENEDICT COAL CORP., 259 F.2D 346 (CA6 1958) (STEWART, J.)  AFFIRMED BY
AN EQUALLY DIVIDED COURT, SUB NOM. MINE WORKERS V. BENEDICT COAL CORP.,
361 U.S. 459 (1960). 

/16/  JUDGE ROSENN CONTENDED WITH JUSTIFICATION THAT A WHOLLY
SUBJECTIVE TEST WOULD OPEN "NEW AND HAZARDOUS AVENUES IN LABOR
RELATIONS FOR UNREST AND STRIKES."  HE STATED: 

"THIS TEST WILL REQUIRE A COURT TO ACCEPT THE NAKED ASSERTION OF AN
EMPLOYEE THAT THE PRESENCE OF ONE OF HIS FELLOW EMPLOYEES IN A PLANT
CONSTITUTES A SAFETY HAZARD.  IF EMPLOYEES MAY LABEL ANOTHER EMPLOYEE A
WORKING RISK AND THEREUPON ENGAGE IN A WORK STOPPAGE WHICH, BECAUSE OF
ITS CHARACTERIZATION AS A SAFETY STRIKE, IS UNREVIEWABLE BY ARBITRATION
OR COURT, NO EMPLOYER CAN EXPECT STABILITY IN LABOR RELATIONS. 
MOREOVER, EACH EMPLOYEE IS THE POSSIBLE VICTIM OF THE ATTITUDES,
FANCIES AND WHIMS OF HIS FELLOW EMPLOYEES.  UNIONS, THEMSELVES, WILL BE
AT THE MERCY OF 'WILDCATTERS.'"  466 F.2D, AT 1162. 

MR. JUSTICE DOUGLAS, DISSENTING. 

        I 

THE DISPUTE IN THIS LABOR CASE DOES NOT INVOLVE HOURLY WAGES,
PENSION BENEFITS, OR THE LIKE.  IT INVOLVES THE LIFE AND DEATH OF THE
WORKERS IN THE MOST DANGEROUS OCCUPATION IN AMERICA.  /1/  THE HISTORY
OF THE COAL MINER IS A HISTORY OF FATAL CATASTROPHES, WHICH HAVE
PROMPTED SPECIAL PROTECTIVE LEGISLATION.  /2/  NOR WAS THE MINE
INVOLVED HERE AN EXCEPTION.  IT IS CLASSIFIED BY THE UNITED STATES
BUREAU OF MINES AS "ESPECIALLY HAZARDOUS," TRIGGERING SPECIAL
INSPECTION PROCEDURES TO INSURE THE SAFETY OF THE MEN WHO WORK IT.
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, 103(I), 83 STAT. 750,
30 U.S.C. 813(I).  CONGRESS HAS RECEIVED TESTIMONY ABOUT SAFETY
PROBLEMS AT THIS MINE IN WHICH THE WORKERS, A YEAR BEFORE THIS DISPUTE,
COMPLAINED OF THE SUPERVISORS' NEGLIGENCE IN SAFETY MATTERS,
PARTICULARLY THEIR PRACTICE OF "NOT TESTING FOR GAS."  /3/  AT THOSE
HEARINGS SENATOR HARRISON WILLIAMS, THE PRINCIPAL AUTHOR OF THE 1969
MINE SAFETY ACT, COMMENTED THAT THE ENFORCEMENT PERFORMANCE OF THE
UNITED STATES BUREAU OF MINES WAS "OUTRAGEOUS ... JUST PLAIN
UNBELIEVABLE."  /4/ 

IT WAS IN THE CONTEXT OF THIS HISTORY THAT THE WORKERS DISCOVERED
THAT THREE OF THEIR FOREMEN HAD NEGLIGENTLY FAILED TO CHECK AND RECORD
THE AIRFLOW IN THE MINE BEFORE THE DAYLIGHT SHIFT BEGAN, AS WAS THEIR
DUTY.  INSTEAD THEY MADE FALSE ENTRIES IN THEIR LOG BOOKS.  AS A
RESULT, THEY HAD NOT DISCOVERED THAT THE AIRFLOW IN THE MINE WAS 11,000
CUBIC FEET PER MINUTE RATHER THAN THE NORMAL 28,000.  REDUCED AIRFLOW
CAN RESULT IN A BUILDUP OF METHANE GAS, CREATING CONDITIONS FOR
ACCIDENTAL EXPLOSIONS RESULTING FROM THE OPERATION OF NORMAL MINING
EQUIPMENT.  THE WORKERS WALKED OFF THE JOB AND REFUSED TO RETURN UNLESS
THE FOREMEN WERE REMOVED.  THE MAJORITY PASSES OFF THE WORKERS' CONCERN
HERE AS ONLY "A GENERALIZED DOUBT IN THE COMPETENCE AND INTEGRITY OF
COMPANY SUPERVISORS" AS IF THERE WERE ONLY UNFOUNDED FEARS ABOUT A FEW
MEN IN AN OPERATION WITH AN EXEMPLARY SAFETY RECORD.  YET THE FOREMAN
IN QUESTION PLEADED NOLO CONTENDERE TO STATE CHARGES OF FALSIFYING THE
RECORDS INVOLVED IN THIS INCIDENT, AND THEIR ADMITTED MISFEASANCE IS
PRECISELY THE KIND OF RECKLESS DISREGARD FOR THE MINERS' SAFETY WHICH
PERMEATES THE HISTORY OF THIS INDUSTRY. 

IN RESPONSE TO THIS HISTORY, THE UNION OBTAINED, IN THE COLLECTIVE
BARGAINING AGREEMENT IN FORCE DURING THIS INCIDENT, A PROVISION FOR A
UNION "MINE SAFETY COMMITTEE" WITH THE AUTHORITY TO PRESENT THE MINE
OPERATOR WITH A BINDING "RECOMMENDATION" THAT ALL WORKERS BE REMOVED
FROM AN UNSAFE MINE AREA.  THE AGREEMENT PROVIDES NO RECOURSE FOR THE
OPERATOR IN DISAGREEMENT WITH THE COMMITTEE'S DETERMINATIONS, ALTHOUGH
HE MAY SUBSEQUENTLY SEEK REMOVAL FROM THE COMMITTEE OF MEMBERS HE
BELIEVES TO HAVE ACTED ARBITRARILY.  YET IT IS CLEAR FROM THIS
PROVISION THAT THE UNION RESERVED TO ITSELF THE AUTHOIRTY TO DETERMINE
THAT A MINE BE CLOSED BECAUSE OF SAFETY HAZARDS.  ALTHOUGH THERE IS AN
EXPLICIT PROVISION THAT A DISPUTE OVER WHETHER A COMMITTEE MEMBER
SHOULD BE REMOVED IS ARBITRABLE, THERE IS NO SUCH PROVISION FOR
ARBITRATION IF THE MINE OPERATOR DISAGREES WITH THE COMMITTEE'S
RECOMMENDATION.  THE INESCAPABLE INFERENCE, ABSENT ANY CONTRARY
PRESUMPTION, IS THAT THIS QUESTION IS NOT SUBJECT TO ARBITRATION.  /5/
AND IN WHAT CLEARLY APPEARS TO BE A BUTTRESS TO THE UNION'S AUTHORITY
IN THIS MATTER, ALL NO-STRIKE PROVISIONS FROM PRIOR CONTRACTS WERE
EXPLICITLY EXCLUDED FROM THE AGREEMENT IN QUESTION HERE, WHICH CONTAINS
NO SUCH COMMITMENT ON THE PART OF THE UNION. 

THIS IS THE CONTRACTUAL CONTEXT IN WHICH THE EMPLOYER BROUGHT THIS
ACTION, UNDER 301 OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT.
156, 29 U.S.C. 185, TO COMPEL ARBITRATION OF THE SAFETY DISPUTE AND
ENJOIN THE WORK STOPPAGE.  IT IS, OF COURSE, CLEARLY ESTABLISHED THAT
BECAUSE OF CONGRESSIONAL POLICY FAVORING ARBITRATION OF LABOR DISPUTES,
A GENERAL ARBITRATION PROVISION, AS FOUND IN THE AGREEMENT HERE IN
QUESTION, IS BROADLY CONSTRUED.  STEELWORKERS TRILOGY (UNITED
STEELWORKERS OF AMERICA V. AMERICAN MFG. CO., 363 U.S. 564; UNITED
STEELWORKERS OF AMERICA V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574;
UNITED STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP., 363
U.S. 593).  THIS POLICY IS GROUNDED, AS THE MAJORITY POINTS OUT, IN THE
EXPRESSION OF POLICY BY THE LABOR MANAGEMENT RELATIONS ACT.  AND ONCE A
DISPUTE IS DETERMINED TO BE ARBITRABLE, THERE IS AN IMPLIED AGREEMENT
BY THE UNION NOT TO STRIKE, TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369
U.S. 95, WHICH IS ENFORCEABLE BY A FEDERAL COURT INJUNCTION UNDER THE
PRINCIPLES ENUNCIATED IN BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398
U.S. 235, BECAUSE OF THE CLOSE RELATIONSHIP BETWEEN THE DUTY TO
ARBITRATE AND THE DUTY NOT TO STRIKE.  LUCAS FLOUR, SUPRA, AT 104 -
106; BOYS MARKETS, SURPA, AT 247 - 249.     YET THIS WHOLE SCHEME,
GROUNDED AS IT IS ON CONGRESSIONAL EXPRESSION OF POLICY, MUST ALLOW FOR
ANY CONGRESSIONALLY INDICATED EXCEPTIONS TO THAT POLICY.  IN A 301 SUIT
THE FEDERAL COURTS ARE TO APPLY FEDERAL LAW "WHICH THE COURTS MUST
FASHION FROM THE POLICY OF OUR NATIONAL LABOR LAWS."  TEXTILE WORKERS
V. LINCOLN MILLS, 353 U.S. 448, 456.  ALTHOUGH THE "PRESUMPTION OF
ARBITRABILITY" MIGHT BE SUFFICIENT IN THE ORDINARY CASE TO OVERCOME THE
CONTRARY IMPLICATIONS IN THE COLLECTIVE-BARGAINING ARGEEMENT INVOLVED
HERE, I FIND THAT PRESUMPTION SERIOUSLY WEAKENED IN THE AREA OF SAFETY
DISPUTES BY 502 OF THE LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C. 143,
WHICH EXPRESSLY SHIELDS WALK-OFFS BY WORKERS CONCERNED FOR THEIR
SAFETY:  THAT SECTION READS IN PART:  "(NOR SHALL THE QUITTING OF LABOR
BY AN EMPLOYEE OR EMPLOYEES IN GOOD FAITH BECAUSE OF ABNORMALLY
DANGEROUS CONDITIONS FOR WORK AT THE PLACE OF EMPLOYMENT OF SUCH
EMPLOYEE OR EMPLOYEES BE DEEMED A STRIKE UNDER THIS CHAPTER."  ALTHOUGH
THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THIS SECTION TO SHED
LIGHT ON ITS PURPOSE, THE WORDS OF THE SECTION ARE THEMSELVES FAIRLY
CLEAR.  THEY RECOGNIZE IN THE LAW WHAT IS IN ANY CASE AN UNAVOIDABLE
PRINCIPLE OF HUMAN BEHAVIOR:  SELF PRESERVATION.  AS JUDGE HASTIE SAID
FOR THE MAJORITY IN THE COURT OF APPEALS:  "MEN ARE NOT WONT TO SUBMIT
MATTERS OF LIFE OR DEATH TO ARBITRATION...."  466 F.2D 1157, 1160. 

THIS IS AN AREA INVOLVING "THE PENUMBRA OF EXPRESS STATUTORY
MANDATES"  TO BE SOLVED "BY LOOKING AT THE POLICY OF THE LEGISLATION
AND FASHIONING A REMEDY THAT WILL EFFECTUATE THAT POLICY."  LINCOLN
MILLS, SUPRA, AT 457.  ALTHOUGH THERE IS A GENERAL POLICY FAVORING
ARBITRATION, I DO NOT FIND THAT CONGRESS INTENDED TO EXTEND THAT POLICY
HERE.  APPLICATION OF THE "PRESUMPTION OF ARBITRABILITY" IS NOT
INEVITABLE IN EVERY LABOR DISPUTE.  BUT MINERS' DETERMINATION TO ACT TO
PROTECT THEIR OWN SAFETY IS AS INEVITABLE IN LABOR DISPUTES AS
ELSEWHERE.  ABSENT ANY PRESUMPTION, I CANNOT FIND THAT THE DISPUTE HERE
WAS ARBITRABLE OR THAT THE UNION WAS UNDER ANY DUTY NOT TO STRIKE.  IT
FOLLOWS THEN, AS THE COURT OF APPEALS FOUND, THAT THERE WAS NO WRONG TO
REMEDY. 

        II 

CONGRESS IN 1969 SET UP PERVASIVE ADMINISTRATIVE CONTROLS OVER
WORKING AND ENVIRONMENTAL CONDITIONS WITH THE COAL MINES, /6/  83 STAT.
742.  THE NEED FOR A MORE EFFECTIVE REGULATORY SCHEME WAS DESCRIBED IN
HOUSE REPORT NO. 91 - 563.  THE 1969 ACT STATES IN ITS FINDINGS AND
PURPOSE THAT "THE FIRST PRIORITY AND CONCERN OF ALL IN THE COAL MINING
INDUSTRY MUST BE THE HEALTH AND SAFETY OF ITS MOST PRECIOUS RESOURCE-
THE MINER."  2(A), 30 U.S.C. 801(A).  EASE OF INVESTIGATING MINES WAS
INSURED.  THE ACT PROVIDES THAT WHEN A REPRESENTATIVE OF THE MINERS
BELIEVES THAT A VIOLATION OF A MANDATORY STANDARD EXISTS AND AN
IMMINENT DANGER EXISTS, THE RIGHT OF IMMEDIATE INSPECTION IS GIVEN THE
FEDERAL GOVERNMENT.  103(G), 30 U.S.C. 813(G).  THE SECRETARY OF THE
INTERIOR MAY MAKE A SPOT INVESTIGATION OF A MINE FOR FIVE WORKING DAYS
WHEN HE BELIEVES HAZARDOUS CONDITIONS EXIST.  103(I), 30 U.S.C.
813(I).  ONCE A HAZARDOUS CONDITION IS FOUND THE SECRETARY CAN ORDER
THAT ALL MINERS BE EVACUATED FROM THE AREA AND PROHIBITED FROM ENTERING
IT.  104(A), 30 U.S.C. 814(A).  THE SECRETARY CAN ABATE MINING IN
INCIPIENT OR POTENTIAL MINING AREAS, 105, 30 U.S.C. 815; AND HIS ORDERS
ARE WITHIN LIMITS SUBJECT TO JUDICIAL REVIEW BY THE MINERS AS WELL AS
BY THE OPERATORS.  106, 30 U.S.C. 816. 

DETAILED VENTILATING REQUIREMENTS ARE PLACED IN THE ACT, 303, 30
U.S.C. 863; AND EXAMINATIONS OF EACH MINE MUST BE MADE WITHIN "THREE
HOURS IMMEDIATELY PRECEDING THE BEGINNING OF ANY SHIFT."  303(D)(1), 30
U.S.C. 863(D)(1).  EXAMINATIONS FOR HAZARDOUS CONDITIONS MUST BE MADE
AT LEAST ONCE A WEEK, 303(F), 30 U.S.C. 863(F); AND WEEKLY
INVESTIGATIONS OF VENTILATING CONDITIONS MUST BE MADE AND VARIOUS
MONITORS WHICH DETECT DANGEROUS GASES MUST BE INSTALLED, 303(1), 30
U.S.C. 863(L).  THE REGULATORY SCHEME COVERS THE SUBJECT MATTER IN
MINUTE DETAIL. 

PENALTIES RUN AGAINST OPERATORS OF MINES AND ALSO AGAINST MINERS WHO
VIOLATE IN SPECIFIED WAYS "MANDATORY SAFETY STANDARDS."  COMPENSATION
OF MINERS LAID OFF BY CLOSED MINES IS PROVIDED, 110(A), 30 U.S.C.
820(A); AND MINERS ARE PROTECTED AGAINST DISCHARGE OR OTHER
DISCRIMINATION BY PROTESTS THEY HAVE MADE AGAINST THE OPERATIONS BY
TESTIMONY THEY HAVE GIVEN.  110(B), 30 U.S.C. 820(B). 

TITLE IV OF THE ACT TREATS DISABILITY PAYMENTS AND PAYMENTS FOR THE
DEATH OF MINERS.  IT BOLSTERS STATE WORKMEN'S COMPENSATION LAWS AND
MAKES THE OWNERS LIABLE, THROUGH SELF INSURANCE OR THROUGH LIABILITY
INSURANCE, WHERE AN ADEQUATE STATE LAW DOES NOT EXIST, 423, 30 U.S.C.
933.  STATE LAWS INCONSISTENT WITH THE FEDERAL ACT ARE SUSPENDED; BUT
STATE LAWS WHICH PROVIDE MORE STRINGENT STANDARDS OR CONTROLS SURVIVE,
506, 30 U.S.C. 955. 

A CLOSE READING OF THIS ACT CONVINCES ME THAT IT MUST DISPLACE ALL
AGREEMENTS TO ARBITRATE SAFETY CONDITIONS.  IT IS IN THAT RESPECT A
MORE EXTREME CASE THAN U.S. BULK CARRIERS V. ARGUELLES, 400 U.S. 351,
WHERE WE HELD THAT A FEDERAL STATUTE GIVING SEAMEN A SPECIFIC JUDICIAL
REMEDY WAS NOT DISPLACED BY ARBITRATION.  WHEN IT COMES TO HEALTH,
SAFETY OF LIFE, OR DETERMINATION OF EVIRONMENTAL CONDITIONS WITHIN THE
MINES, CONGRESS HAS PRE-EMPTED THE FIELD.  AN ARBITER IS NO PART OF THE
PARAPHERNALIA DESCRIBED IN THE ACT.  AN ARBITER SEEKS A COMPROMISE, AN
ADJUSTMENT, AN ACCOMMODATION.  THERE IS NO MANDATE IN ARBITRATION TO
APPLY A SPECIFIC LAW.  THOSE NAMED IN THE PRESENT ACT WHO CONSTRUE,
APPLY, AND FORMULATE THE LAW ARE THE SECRETARY AND THE COURTS. 

MOREOVER, ARBITRATION AWARDS MIGHT COMPROMISE ADMINISTRATION OF THE
1969 ACT.  RULINGS OF ARBITERS MIGHT NOT JIBE WITH RULINGS OF THE
SECRETARY.  RULINGS OF THE ARBITERS MIGHT EVEN COLOR CLAIMS FOR
COMPENSATION OR DAMAGES BY NEGATIVING THE VERY BASIS OF LIABILITY
EITHER IN WORKMEN'S COMPENSATION ACTS OR IN STATE LAWSUITS FOR
DAMAGES. 

HENCE, THOUGH I DISAGREE WITH THE WAY IN WHICH THE COURT READS THIS
PARTICULAR ARBITRATION CLAUSE, I CONCLUDE THAT EVEN THOUGH THE
COLLECTIVE-BARGAINING AGREEMENT IS READ TO AUTHORIZE ARBITRATION, THE
1969 ACT PRECLUDES IT.  THE 1969 ACT SPECIFIES THE ARMS OF THE LAW
WHICH HANDLE THESE MATTERS OF SAFETY OF MINES.  CONGRESS HAS GIVEN
ARBITERS NO SHARE OF THE POWER. 

/1/  BUREAU OF LABOR STATISTICS, INJURY RATES BY INDUSTRY, 1970, PP.
3, 6 (REPORT NO. 406, 1972). 

/2/  S. REP. NO. 91 - 411, PP. 3 - 6; H. R. REP. NO. 91 - 563, PP. 1
- 3. 

/3/  HEARINGS ON HEALTH AND SAFETY IN THE COAL MINES BEFORE THE
SUBCOMMITTEE ON LABOR OF THE SENATE COMMITTEE ON LABOR AND PUBLIC
WELFARE, 91ST CONG., 2D SESS., 27, 351 (1970). 

/4/  ID., AT 191. 

/5/  THIS INFERENCE IS STRENGTHENED BY THE AGREEMENT'S PROVISIONS
FOR ARBITRATION IF THE OPERATOR OBJECTED TO RECOMMENDATIONS BY FEDERAL
COAL MINE INSPECTORS.  (B)(2) OF THE AGREEMENT.  THERE WOULD OBVIOUSLY
BE NO NEED FOR THIS SPECIAL ARBITRATION PROVISION IF THE PARTIES FELT
THAT SAFETY QUESTIONS COULD BE HANDLED THROUGH THE REGULAR ARBITRATION
MACHINERY. 

INDEED THE PROVISION IN QUESTION HERE HAS A LONG HISTORY SUPPORTING
THIS CONSTRUCTION.  THE 1946 AGREEMENT, KNOWN AS THE KRUG-LEWIS
AGREEMENT, AND ARISING FROM PRESIDENT TRUMAN'S SEIZURE OF THE MINES IN
1946, UNITED STATES V. UNITED MINE WORKERS OF AMERICA, 330 U.S. 258,
EXPRESSLY PERMITTED UNION SAFETY COMMITTEES TO INITIATE SAFETY
STOPPAGES, ALTHOUGH THE FEDERAL COAL MINES ADMINISTRATOR (CAPT. N. H.
COLLISSON), WAS GIVEN AUTHORITY TO HALT SUCH A STOPPAGE.  AT HEARINGS
FOLLOWING THE CENTRALIA MINE DISASTER, RESULTING IN THE DEATH OF 111
MINERS, SECRETARY OF THE INTERIOR KRUG TESTIFIED THAT THE MEANING OF
THE PROVISION "WAS TO GIVE THE MINE SAFETY COMMITTEE COMPLETE AUTHORITY
TO GET THE MEN OUT OF THE MINE, IF THEY FELT THE MINE WAS UNSAFE...." 
HEARINGS PURSUANT TO S. RES. 98 BEFORE A SPECIAL SUBCOMMITTEE OF THE
SENATE COMMITTEE ON PUBLIC LANDS, 80TH CONG., 1ST SESS., 312.  THE
PREDECESSOR TO THE CURRENT PROVISION APPEARED IN THE NATIONAL
BITUMINOUS COAL WAGE AGREEMENT OF 1947, WHICH DELETED COLLISSON'S
AUTHORITY TO OVERRIDE THE MINERS. 

/6/  THE HAZARDS OF VARIOUS WORKING CONDITIONS TO THE HEALTH OF
WORKERS HAVE BEEN OF GREAT CONCERN TO CONGRESS, ITS LATEST ACT BEING
THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, 84 STAT. 1590, WHICH IN
TERMS DOES NOT EXCLUDE EMPLOYEES WHO ARE IN THE COAL-MINING BUSINESS. 
THE ACT LOOKS TOWARD INCREASING THE QUALITY OF THE ENVIRONMENT IN WHICH
EMPLOYEES WORK AND OF IMPROVING THE WORKMEN'S COMPENSATION SYSTEM UNDER
WHICH THEY ARE PROTECTED.  SEE BRODEUR, CASUALTIES OF THE WORKPLACE,
NEW YORKER, NOV. 19, 1973, P. 87, FOR AN ACCOUNT OF THE INDUSTRIAL
MEDICAL COMPLEX THAT WORKS TO KEEP PLANTS PROFITABLE TO THE OWNERS AND
DANGEROUS TO THE WORKERS. 

LEONARD L. SCHEINHOLTZ ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE HENRY J. WALLACE, JR., AND DANIEL R. MINNICK. 

JOSEPH A. YABLONSKI ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WERE CLARICE R. FELDMAN AND DANIEL B. EDELMAN.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MILTON A.
SMITH AND LAWRENCE M. COHEN FOR THE CHAMBER OF COMMERCE OF THE UNITED
STATES; BY GUY FARMER FOR THE BITUMINOUS COAL OPERATORS' ASSN., INC.;
AND BY RICHARD D. GODOWN AND MYRON G. HILL, JR., FOR THE NATIONAL
ASSOCIATION OF MANUFACTURERS. 

J. ALBERT WOLL, LAURENCE GOLD, THOMAS E. HARRIS, STEPHEN I.
SCHLOSSBERG, AND GEORGE KAUFMANN FILED A BRIEF FOR THE AMERICAN
FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS ET AL. AS
AMICI CURIAE URGING AFFIRMANCE. 
..END :


















UNITED STATES V. MAZE, 414 U.S. 395 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 72 - 1168.  ARGUED NOVEMBER 13 - 14, 1973--DECIDED

           JANUARY 8, 1974; 468 F.2D 529, AFFIRMED. 


    RESPONDENT WAS CONVICTED OF VIOLATING THE FEDERAL MAIL FRAUD

  STATUTE, 18 U.S.C. 1341, BY DEVISING A SCHEME TO DEFRAUD THROUGH

  UNLAWFULLY OBTAINING POSSESSION FROM ONE MEREDITH OF A CREDIT

  CARD ISSUED BY A LOUISVILLE BANK, WHICH RESPONDENT USED TO OBTAIN

  GOODS AND SERVICES FROM MOTEL OPERATORS IN VARIOUS STATES KNOWING

  THAT THE OPERATORS TO WHOM HE PRESENTED THE CARD FOR PAYMENT

  WOULD MAIL THE SALES SLIPS TO THE LOUISVILLE BANK, WHICH WOULD IN

TURN MAIL THEM TO MEREDITH.  SECTION 1341 MAKES IT A CRIME, INTER

  ALIA, FOR A PERSON WHO HAS DEVISED A SCHEME TO DEFRAUD OR FOR

  OBTAINING MONEY OR PROPERTY BY MEANS OF FALSE PRETENSES FOR THE

  PURPOSE OF EXECUTING THE SCHEME KNOWINGLY TO CAUSE TO BE

  DELIVERED BY MAIL ACCORDING TO THE DIRECTION THEREON ANY THING

  DELIVERED BY THE POSTAL SERVICE.  THE COURT OF APPEALS REVERSED

  THE JUDGMENT OF CONVICTION ON THE GROUND THAT 1341 WAS

  INAPPLICABLE TO RESPONDENT'S CONDUCT.  HELD:  THE MAILINGS WERE

  NOT SUFFICIENTLY CLOSELY RELATED TO RESPONDENT'S SCHEME TO BRING

  HIS CONDUCT WITHIN THE STATUTE.  THOUGH MAILINGS WERE TO BE

  DIRECTED TO ADJUSTING THE ACCOUNTS BETWEEN RESPONDENT'S VICTIMS

  (THE MOTELS, THE LOUISVILLE BANK, AND MEREDITH), THEY WERE NOT

  FOR THE PURPOSE OF EXECUTING THE SCHEME EMBRACED BY THE STATUTE

  SINCE THAT SCHEME HAD ALREADY REACHED FRUITION WHEN RESPONDENT

  CHECKED OUT OF THE MOTEL AND DID NOT DEPEND ON WHICH OF HIS

  VICTIMS ULTIMATELY BORE THE LOSS.  PEREIRA V. UNITED STATES, 347

  U.S. 1; UNITED STATES V. SAMPSON, 371 U.S. 75, DISTINGUISHED. 

  PP. 398 - 405. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, MARSHALL, AND POWELL, JJ., JOINED.  BURGER, C. J., FILED A
DISSENTING OPINION, IN WHICH WHITE, J., JOINED, POST, P. 405.  WHITE,
J., FILED A DISSENTING OPINION, IN WHICH BURGER, C. J., AND BRENNAN AND
BLACKMUN, JJ., JOINED, POST, P. 408. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

IN FEBRUARY 1971 RESPONDENT THOMAS E. MAZE MOVED TO LOUISVILLE,
KENTUCKY, AND THERE SHARED AN APARTMENT WITH CHARLES L. MEREDITH.  IN
THE SPRING OF THAT YEAR RESPONDENT'S FANCY LIGHTLY TURNED TO THOUGHTS
OF THE SUNNY SOUTHLAND, AND HE THEREUPON TOOK MEREDITH'S BANKAMERICARD
AND HIS 1968 AUTOMOBILE AND HEADED FOR SOUTHERN CALIFORNIA.  BY
PRESENTING THE BANKAMERICARD AND SIGNING MEREDITH'S NAME, RESPONDENT
OBTAINED FOOD AND LODGING AT MOTELS LOCATED IN CALIFORNIA, FLORIDA, AND
LOUISIANA.  EACH OF THESE ESTABLISHMENTS TRANSMITTED TO THE CITIZENS
FIDELITY BANK & TRUST CO. IN LOUISVILLE, WHICH HAD ISSUED THE
BANKAMERICARD TO MEREDITH, THE INVOICES REPRESENTING GOODS AND SERVICES
FURNISHED TO RESPONDENT.  MEREDITH, MEANWHILE, ON THE DAY AFTER
RESPONDENT'S DEPARTURE FROM LOUISVILLE, NOTIFIED THE LOUISVILLE BANK
THAT HIS CREDIT CARD HAD BEEN STOLEN. 

UPON RESPONDENT'S RETURN TO LOUISVILLE HE WAS INDICTED ON FOUR
COUNTS OF VIOLATION OF THE FEDERAL MAIL FRAUD STATUTE, 18 U.S.C. 1341,
AND ONE COUNT OF VIOLATION OF THE DYER ACT, 18 U.S.C. 2312.  THE MAIL
FRAUD COUNTS OF THE INDICTMENT CHARGED THAT RESPONDENT HAD DEVISED A
SCHEME TO DEFRAUD THE LOUISVILLE BANK, CHARLES L. MEREDITH, AND SEVERAL
MERCHANTS IN DIFFERENT STATES BY UNLAWFULLY OBTAINING POSSESSION OF THE
BANKAMERICARD ISSUED BY THE LOUISVILLE BANK TO MEREDITH, AND USING THE
CARD TO OBTAIN GOODS AND SERVICES.  THE INDICTMENT CHARGED THAT
RESPONDENT HAD OBTAINED GOODS AND SERVICES AT FOUR SPECIFIED MOTELS BY
PRESENTING MEREDITH'S BANKAMERICARD FOR PAYMENT AND REPRESENTING
HIMSELF TO BE MEREDITH, AND THAT RESPONDENT KNEW THAT EACH MERCHANT
WOULD CAUSE THE SALES SLIPS OF THE PURCHASES TO BE DELIVERED BY MAIL TO
THE LOUISVILLE BANK WHICH WOULD IN TURN MAIL THEM TO MEREDITH FOR
PAYMENT.  THE INDICTMENT ALSO CHARGED THAT THE DELAY IN THIS MAILING
WOULD ENABLE THE RESPONDENT TO CONTINUE PURCHASING GOODS AND SERVICES
FOR AN APPRECIABLE PERIOD OF TIME. 

RESPONDENT WAS TRIED BY A JURY IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY.  AT TRIAL, RESPRESENTATIVES OF
THE FOUR MOTELS IDENTIFIED THE SALES INVOICES FROM THE TRANSACTIONS ON
MEREDITH'S BANKAMERICARD WHICH WERE FORWARDED TO THE LOUISVILLE BANK BY
THEIR MOTELS.  AN OFFICIAL OF THE LOUISVILLE BANK TESTIFIED THAT ALL OF
THE SALES INVOICES FOR THOSE TRANSACTIONS WERE RECEIVED BY THE BANK IN
DUE COURSE THROUGH THE MAIL, AND THAT THIS WAS THE CUSTOMARY METHOD BY
WHICH INVOICES REPRESENTING BANKAMERICARD PURCHASES WERE TRANSMITTED TO
THE LOUISVILLE BANK.  THE JURY FOUND RESPONDENT GUILTY AS CHARGED ON
ALL COUNTS, AND HE APPEALED THE JUDGMENT OF CONVICTION TO THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT.  THAT COURT REVERSED THE JUDGMENT AS TO
THE MAIL FRAUD STATUTE, BUT AFFIRMED IT AS TO THE DYER ACT.  468 F.2D
529 (1972).  /1/  BECAUSE OF AN APPARENT CONFLICT AMONG THE COURTS OF
APPEALS AS TO THE CIRCUMSTANCES UNDER WHICH THE FRAUDULENT USE OF A
CREDIT CARD MAY VIOLATE THE MAIL FRAUD STATUTE, /2/  WE GRANTED THE
GOVERNEMNT'S PETITION FOR CERTORARI.  411 U.S. 963 (1973).  FOR THE
REASONS STATED BELOW, WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

THE APPLICABLE PARTS OF THE MAIL FRAUD STATUTE PROVIDE AS FOLLOWS:
/3/ 

"WHOEVER, HAVING DEVISED OR INTENDING TO DEVISE ANY SCHEME OR

  ARTIFICE TO DEFRAUD, OR FOR OBTAINING MONEY OR PROPERTY BY MEANS

  OF FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS, OR PROMISES

  ... FOR THE PURPOSE OF EXECUTING SUCH SCHEME OR ARTIFICE OR

  ATTEMPTING SO TO DO ... KNOWINGLY CAUSES TO BE DELIVERED BY MAIL

  ACCORDING TO THE DIRECTION THEREON, OR AT THE PLACE AT WHICH IT

  IS DIRECTED TO BE DELIVERED BY THE PERSON TO WHOM IT IS

  ADDRESSED, ANY (MATTER OR THING WHATEVER TO BE SENT OR DELIVERED

  BY THE POSTAL SERVICE) SHALL BE FINED NOT MORE THAN $1,000 OR

  IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH."  18 U.S.C. 1341. 

IN PEREIRA V. UNITED STATES, 347 U.S. 1, 8 - 9 (1954), THE COURT HELD
THAT ONE "CAUSES" THE MAILS TO BE USED WHERE HE "DOES AN ACT WITH
KNOWLEDGE THAT THE USE OF THE MAILS WILL FOLLOW IN THE ORDINARY COURSE
OF BUSINESS, OR WHERE SUCH USE CAN REASONABLY BE FORESEEN, EVEN THOUGH
NOT ACTUALLY INTENDED...."  WE ASSUME, AS DID THE COURT OF APPEALS,
THAT THE EVIDENCE WOULD SUPPORT A FINDING BY THE JURY THAT MAZE
"CAUSED" THE MAILINGS OF THE INVOICES HE SIGNED FROM THE OUT-OF-STATE
MOTELS TO THE LOUISVILLE BANK.  BUT THE MORE DIFFICULT QUESTION IS
WHETHER THESE MAILINGS WERE SUFFICIENTLY CLOSELY RELATED TO
RESPONDENT'S SCHEME TO BRING HIS CONDUCT WITHIN THE STATUTE.  /4/ 

UNDER THE STATUTE, THE MAILING MUST BE "FOR THE PURPOSE OF EXECUTING
THE SCHEME, AS THE STATUTE REQUIRES," KANN V. UNITED STATES, 323 U.S.
88, 94 (1944), BUT "(IT IS NOT NECESSARY THAT THE SCHEME CONTEMPLATE
THE USE OF THE MAILS AS AN ESSENTIAL ELEMENT," PEREIRA V. UNITED
STATES, SUPRA, AT 8.  THE GOVERNEMTN RELIES ON PEREIRA, SUPRA, AND
UNITED STATES V. SAMPSON, 371 U.S. 75 (1962), TO SUPPORT ITS POSITION,
WHILE RESPONDENT RELIES ON KANN V. UNITED STATES, SUPRA, AND PARR V.
UNITED STATES, 363 U.S. 370 (1960). 

IN KANN, SUPRA, CORPORATE OFFICERS AND DIRECTORS WERE ACCUSED OF
HAVING SET UP A DUMMY CORPORATION THROUGH WHICH TO DIVERT PROFITS OF
THEIR OWN CORPORATION TO THEIR OWN USE.  AS A PART OF THE SCHEME, THE
DEFENDANTS WERE ACCUSED OF HAVING FRAUDULENTLY OBTAINED CHECKS PAYABLE
TO THEM WHICH WERE CASHED OR DEPOSITED AT A BANK AND THEN MAILED FOR
COLLECTION TO THE DRAWEE BANK.  THIS COURT HELD THAT THE FRAUD WAS
COMPLETED AT THE POINT AT WHICH DEFENDANTS CASHED THE CHECKS: 

     "THE SCHEME IN EACH CASE HAD REACHED FRUITION.  THE PERSONS

  INTENDED TO RECEIVE THE MONEY HAD RECEIVED IT IRREVOCABLY.  IT

  WAS IMMATERIAL TO THEM, OR TO ANY CONSUMMATION OF THE SCHEME, HOW

 THE BANK WHICH PAID OR CREDITED THE CHECK WOULD COLLECT FROM THE

  DRAWEE BANK.  IT CANNOT BE SAID THAT THE MAILINGS IN QUESTION

  WERE FOR THE PURPOSE OF EXECUTING THE SCHEME, AS THE STATUTE

  REQUIRES."  323 U.S., AT 94. 

IN PARR, SUPRA, THE DEFENDANTS WERE CHARGED, INTER ALIA, WITH HAVING
OBTAINED GASOLINE AND OTHER PRODUCTS AND SERVICES FOR THEIR OWN
PURPOSES BY THE UNAUTHORIZED USE OF A GASOLINE CREDIT CARD ISSUED TO
THE SCHOOL DISTRICT WHICH EMPLOYED THEM.  THE OIL COMPANY WHICH
FURNISHED PRODUCTS AND SERVICES TO THE DEFENDANTS WOULD MAIL INVOICES
TO THE SCHOOL DISTRICT FOR PAYMENT, AND THE SCHOOL DISTRICT'S PAYMENT
WAS MADE BY CHECK SENT IN THE MAIL.  RELYING ON KANN, THE COURT AGAIN
FOUND THAT THERE WAS NOT A SUFFICIENT CONNECTION BETWEEN THE MAILING
AND THE EXECUTION OF THE DEFENDANTS'  SCHEME, BECAUSE IT WAS IMMATERIAL
TO THE DEFENDANTS HOW THE OIL COMPANY WENT ABOUT COLLECTING ITS
PAYMENT. 

THE DEFENDANT IN PEREIRA, SUPRA, WAS CHARGED WITH HAVING DEFRAUDED A
WEALTHY WIDOW OF HER PROPERTY AFTER MARRYING HER.  THE COURT DESCRIBES
THE CONDUCT OF DEFENDANT IN THESE WORDS: 

"PEREIRA ASKED HIS THEN WIFE IF SHE WOULD JOIN HIM IN THE HOTEL

  VENTURE AND ADVANCE $35,000 TOWARD THE PURCHASE PRICE OF

  $78,000.  SHE AGREED.  IT WAS THEN AGREED, BETWEEN HER AND

  PEREIRA, THAT SHE WOULD SELL SOME SECURITIES THAT SHE POSSESSED

  IN LOS ANGELES, AND BANK THE MONEY IN A BANK OF HIS CHOOSING IN

  EL PASO.  ON JUNE 15, SHE RECEIVED THE CHECK FOR $35,000 ON THE

  CITIZENS NATIONAL BANK OF LOS ANGELES FROM HER BROKERS IN LOS

  ANGELES, AND GAVE IT TO PEREIRA, WHO ENDORSED IT FOR COLLECTION

  TO THE STATE NATIONAL BANK OF EL PASO.  THE CHECK CLEARED, AND ON

  JUNE 18, A CASHIER'S CHECK FOR $35,000 WAS DRAWN IN FAVOR OF

PEREIRA."  347 U.S., AT 5. 

THUS THE MAILINGS IN PEREIRA PLAYED A SIGNIFICANT PART IN ENABLING
THE DEFENDANT IN THAT CASE TO ACQUIRE DOMINION OVER THE $35,000, WITH
WHICH HE ULTIMATELY ABSCONDED.  /5/  UNLIKE THE MAILINGS IN PEREIRA,
THE MAILINGS HERE WERE DIRECTED TO THE END OF ADJUSTING ACCOUNTS
BETWEEN THE MOTEL PROPRIETOR, THE LOUISVILLE BANK, AND MEREDITH, ALL OF
WHOM HAD TO A GREATER OR LESSER DEGREE BEEN THE VICTIMS OF RESPONDENT'S
SCHEME.  RESPONDENT'S SCHEME REACHED FRUITION WHEN HE CHECKED OUT OF
THE MOTEL, AND THERE IS NO INDICATION THAT THE SUCCESS OF HIS SCHEME
DEPENDED IN ANY WAY ON WHICH OF HIS VICTIMS ULTIMATELY BORE THE LOSS. 
/6/  INDEED, FROM HIS POINT OF VIEW, HE PROBABLY WOULD HAVE PREFERRED
TO HAVE THE INVOICES MISPLACED BY THE VARIOUS MOTEL PERSONNEL AND NEVER
MAILED AT ALL. 

THE GOVERNMENT, HOWEVER, RELYING ON UNITED STATES V. SAMPSON, SUPRA,
ARGUES THAT ESSENTIAL TO THE SUCCESS OF ANY FRAUDULENT CREDIT-CARD
SCHEME IS THE "DELAY" CAUSED BY USE OF THE MAILS "WHICH AIDS THE
PERPETRATOR ... IN THE CONTINUATION OF A FRAUDULENT CREDIT CARD SCHEME
AND THE POSTPONEMENT OF ITS DETECTION."  IN SAMPSON, VARIOUS EMPLOYEES
OF A NATIONWIDE CORPORATION WERE CHARGED WITH A SCHEME TO DEFRAUD
BUSINESSMEN BY OBTAINING ADVANCE FEES ON THE PROMISE THAT THE
DEFENDANTS WOULD EITHER HELP THE BUSINESSMEN TO OBTAIN LOANS OR TO SELL
THIER BUSINESSES.  EVEN AFTER THE CHECKS REPRESENTING THE FEES HAD BEEN
DEPOSITED TO THE ACCOUNTS OF THE DEFENDANTS, HOWEVER, THE PLAN CALLED
FOR THE MAILING OF THE ACCEPTED APPLICATION TOGETHER WITH A FORM LETTER
ASSURING THE VICTIMS THAT THE SERVICES FOR WHICH THEY HAD CONTRACTED
WOULD BE PERFORMED.  THE COURT FOUND THAT KANN AND PARR DID NOT
PRECLUDE THE APPLICATION OF THE MAIL FRAUD STATUTE TO "A DELIBERATE,
PLANNED USE OF THE MAILS AFTER THE VICTIMS' MONEY HAD BEEN OBTAINED." 
371 U.S., AT 80. 

WE DO NOT BELIEVE THAT SAMPSON SUSTAINS THE GOVERNMENT'S POSITION. 
THE SUBSEQUENT MAILINGS THERE WERE DESIGNED TO LULL THE VICTIMS INTO A
FALSE SENSE OF SECURITY, POSTPONE THEIR ULTIMATE COMPLAINT TO THE
AUTHORITIES, AND THEREFORE MAKE THE APPREHENSION OF THE DEFENDANTS LESS
LIKELY THAN IF NO MAILINGS HAD TAKEN PLACE.  BUT THE SUCESSFUL
COMPLETION OF THE MAILINGS FROM THE MOTEL OWNERS HERE TO THE LOUISVILLE
BANK INCREASED THE PROBABILITY THAT RESPONDENT WOULD BE DETECTED AND
APPREHENDED.  THERE WAS UNDOUBTEDLY DELAY IN TRANSMITTING INVOICES TO
THE LOUISVILLE BANK, AS THERE IS IN THE PHYSICAL TRANSMISSION OF ANY
BUSINESS CORRESPONDENCE BETWEEN CITIES SEPARATED BY LARGE DISTANCES. 
MAIL SERVICE AS A MEANS OF TRANSMITTING SUCH CORRESPONDENCE FROM ONE
CITY TO ANTOHER IS DESIGNED TO OVERCOME THE EFFECT OF THE DISTANCE
WHICH SEPARATES THE PLACES.  BUT IT IS THE DISTANCE, AND NOT THE MAIL
SERVICE, /7/  WHICH CAUSES THE TIME LAG IN THE PHYSICAL TRANSMISSION OF
SUCH CORRESPONDENCE.  /8/ 

CONGRESS HAS ONLY RECENTLY PASSED AN AMENDMENT TO THE TRUTH IN
LENDING ACT /9/  WHICH MAKES CRIMINAL THE USE OF A FRAUDULENTLY
OBTAINED CREDIT CARD IN A "TRANSACTION AFFECTING INTERSTATE OR FOREIGN
COMMERCE."  84 STAT. 1127, 15 U.S.C. 1644.  CONGRESS COULD HAVE DRAFTED
THE MAIL FRAUD STATUTE SO AS TO REQUIRE ONLY THAT THE MAILS BE IN FACT
USED AS A RESULT OF THE FRAUDULENT SCHEME.  /10/  BUT IT DID NOT DO
THIS; INSTEAD, IT REQUIRED THAT THE USE OF THE MAILS BE "FOR THE
PURPOSE OF EXECUTING SUCH SCHEME OR ARTIFICE...."  SINCE THE MAILINGS
IN THIS CASE WERE NOT FOR THAT PURPOSE, THE JUDGMENT OF THE COURT OF
APPEALS IS

              AFFIRMED. 

/1/  THE COURT OF APPEALS DETERMINED THAT EVEN THOUGH IT AFFIRMED
RESPONDENT'S DYER ACT CONVICTION, FOR WHICH HE HAD RECEIVED A
CONCURRENT FIVE-YEAR SENTENCE, IT SHOULD ALSO CONSIDER THE MAIL FRAUD
CONVICTIONS AS WELL.  THERE IS NO JURISDICTIONAL BARRIER TO SUCH A
DECISION, BENTON V. MARYLAND, 395 U.S. 784 (1969), AND THE COURT
DECIDED THAT "NO CONSIDERATIONS OF JUDICIAL ECONOMY OR EFFICIENCY HAVE
BEEN URGED TO US THAT WOULD OUTWEIGH THE INTEREST OF APPELLANT IN THE
OPPORTUNITY TO CLEAR HIS RECORD OF A CONVICTION OF A FEDERAL FELONY." 
468 F.2D 536 N. 6.  WE AGREE THAT RESOLUTION OF THE MAIL FRAUD
QUESTIONS PRESENTED BY THIS CASE IS APPROPRIATE. 

/2/  THE DECISION OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT IN
UNITED STATES V. LYNN, 461 F.2D 759 (1972), APPEARS CONSISTENT WITH THE
DECISION OF THE SIXTH CIRCUIT IN THE INSTANT CASE.  FIVE OTHER COURTS
OF APPEALS APPARENTLY TAKE A CONTRARY VIEW.  E.G., UNITED STATES V.
KELLERMAN, 431 F.2D 319 (CA2), CERT. DENIED, 400 U.S. 957 (1970);
UNITED STATES V. CHASON, 451 F.2D 301 (CA2 1971), CERT. DENIED, 405
U.S. 1016 (1972); UNITED STATES V. MADISON, 458 F.2D 974 (CA2), CERT.
DENIED, 409 U.S. 859 (1972); UNITED STATES V. CIOTTI, 469 F.2D 1204
(CA3 1972), CERT. PENDING, NO. 72 - 6155; ADAMS V. UNITED STATES, 312
F.2D 137 (CA5 1963); KLOIAN V. UNITED STATES, 349 F.2D 291 (CA5 1965),
CERT. DENIED, 384 U.S. 913 (1966); UNITED STATES V. REYNOLDS, 421 F.2D
178 (CA5 1970); UNITED STATES V. THOMAS, 429 F.2D 407 (CA5 1970);
UNITED STATES V. KELLY, 467 F.2D 262 (CA7 1972), CERT. DENIED, 411 U.S.
933 (1973); UNITED STATES V. KELEM, 416 F.2D 346 (CA9 1969), CERT.
DENIED, 397 U.S. 952 (1970). 

/3/  THE FULL TEXT OF THE SECTION READS AS FOLLOWS: 

"WHOEVER, HAVING DEVISED OR INTENDING TO DEVISE ANY SCHEME OR
ARTIFICE TO DEFRAUD, OR FOR OBTAINING MONEY OR PROPERTY BY MEANS OF
FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS, OR PROMISES, OR TO
SELL, DISPOSE OF, LOAN, EXCHANGE, ALTER, GIVE AWAY, DISTRIBUTE, SUPPLY,
OR FURNISH OR PROCURE FOR UNLAWFUL USE ANY COUNTERFEIT OR SPURIOUS
COIN, OBLIGATION, SECURITY, OR OTHER ARTICLE, OR ANYTHING REPRESENTED
TO BE OR INTIMATED OR HELD OUT TO BE SUCH COUNTERFEIT OR SPURIOUS
ARTICLE, FOR THE PURPOSE OF EXECUTING SUCH SCHEME OR ARTIFICE OR
ATTEMPTING SO TO DO, PLACES IN ANY POST OFFICE OR AUTHORIZED DEPOSITORY
FOR MAIL MATTER, ANY MATTER OR THING WHATEVER TO BE SENT OR DELIVERED
BY THE POSTAL SERVICE, OR TAKES OR RECEIVES THEREFROM, ANY SUCH MATTER
OR THING, OR KNOWINGLY CAUSES TO BE DELIVERED BY MAIL ACCORDING TO THE
DIRECTION THEREON, OR AT THE PLACE AT WHICH IT IS DIRECTED TO BE
DELIVERED BY THE PERSON TO WHOM IT IS ADDRESSED, ANY SUCH MATTER OR
THING, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN
FIVE YEARS, OR BOTH."  18 U.S.C. 1341.     /4/  THE GOVERNMENT
INDICATES THAT IN 1969 IT WAS ESTIMATED THAT MORE THAN 300 MILLION
CONSUMER CREDIT CARDS WERE IN CIRCULATION, WITH ANNUAL CHARGES BETWEEN
$40 BILLION AND $60 BILLION.  IT WAS ALSO ESTIMATED THAT, IN 1969, 1.5
MILLION CARDS WERE LOST OR STOLEN, AND THAT LOSSES DUE TO FRAUD HAD
RISEN FROM $20 MILLION IN 1966 TO $100 MILLION IN 1969.  BRIEF FOR
UNITED STATES 14 N. 2, CITING 115 CONG. REC. 28987 (1969).  THE MAIL
FRAUD STATUTE, FIRST ENACTED IN 1872, C. 335, 301, 17 STAT. 323, WHILE
OBVIOUSLY NOT DIRECTED AT CREDIT CARD FRAUDS AS SUCH, IS SUFFICIENTLY
GENERAL IN ITS LANGUAGE TO INCLUDE THEM IF THE REQUIREMENTS OF THE
STATUTE ARE OTHERWISE MET. 

/5/  WHILE IT IS CLEARLY IMPLIED IN THIS COURT'S OPINION IN PEREIRA
THAT THE EL PASO BANK DID NOT IMMEDIATELY CREDIT THE ACCOUNT OF THE
DEFENDANT, BUT INSTEAD AWAITED ADVICE FROM THE LOS ANGELES BANK TO
WHICH IT HAD MAILED THE CHECK, THE OPINION OF THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT IN PEREIRA MAKES THAT FACT ABUNDANTLY CLEAR: 

"THE RETURN OF (THE) CHECK FROM TEXAS TO CALIFORNIA CONSTITUTES THE
MAILING REFERRED TO IN THE FIRST COUNT.... IN MAILING THE CHECK BACK TO
THE BANK IN CALIFORNIA ON WHICH IT WAS DRAWN, THE EL PASO, TEXAS, BANK
SENT 'INSTRUCTIONS TO WIRE FATE,' MEANING TO WIRE WHETHER THE ITEM WAS
PAID OR NOT.  UPON RECEIVING A TELEGRAM STATING THAT THE CHECK HAD BEEN
PAID, THE BANK IN EL PASO GAVE PEREIRA ITS CASHIER'S CHECK FOR
$35,286.01, WHICH PEREIRA PROMPTLY CASHED ON JUNE 19, 1951."  PEREIRA
V. UNITED STATES, 202 F.2D 830, 836 (1953). 

/6/  MR. JUSTICE WHITE'S DISSENTING OPINION INDICATES THAT
RESPONDENT ENGAGED IN A "TWO WEEK, $2,000 TRANSCONTINENTAL SPENDING
SPREE."  WHILE WE ARE NOT SURE OF THE LEGAL SIGNIFICANCE OF THE AMOUNTS
FRAUDULENTLY CHARGED ON THE CREDIT CARD BY THE RESPONDENT, WE NOTE THAT
THE FOUR COUNTS OF MAIL FRAUD CHARGED IN THE INDICTMENT WERE BASED ON
CHARGES ON MEREDITH'S CREDIT CARD TOTALING $301.85.  BRIEF FOR
RESPONDENT 4 N. 2; BRIEF FOR UNITED STATES 4 - 5. 

/7/  SINCE WE ARE ADMONISHED THAT WE MAY NOT AS JUDGES IGNORE WHAT
WE KNOW AS MEN, WE DO NOT WISH TO BE UNDERSTOOD AS SUGGESTING THAT
DELAYS IN MAIL SERVICE ARE SOLELY ATTRIBUTABLE TO THE DISTANCE
INVOLVED.  IF THE POSTAL SERVICE APPEARS ON OCCASION TO BE SOMETHING
LESS THAN A 20TH CENTURY VERSION OF THE WING-FOOTED MERCURY, THE FACT
REMAINS THAT THE INVOICES WERE MAILED TO AND WERE ULTIMATELY RECEIVED
BY THE LOUISVILLE BANK. 

/8/  DISTANCE IS NOT THE ONLY CAUSE OF DELAY.  THE COURT OF APPEALS
NOTED THAT BANKAMERICARD HAD A BILLING SYSTEM IN WHICH BILLING WAS
ACCOMPLISHED BY COLLECTING RECEIPTS OVER A ONE-MONTH PERIOD AND THEN
BILLING THE CARD HOLDER.  468 F.2D, AT 535.  IT MIGHT REASONABLY BE
ARGUED THAT RESPONDENT HIMSELF USED FACILITIES OF INTERSTATE TRAVEL FOR
THE PURPOSE OF EXECUTING HIS SCHEME, SINCE THE LARGE DISTANCES
SEPARATING THE DEFRAUDED MOTELS FROM ONE ANOTHER AND FROM THE
LOUISVILLE BANK PROBABLY DID MAKE IT MORE DIFFICULT TO APPREHEND HIM
THAN IF HE HAD SIMPLY DEFRAUDED LOCAL ENTERPRISES IN LOUISVILLE.  BUT
THE STATUTE IS CAST, NOT IN TERMS OF USE OF THE FACILITIES OF
INTERSTATE TRAVEL, BUT IN TERMS OF USE OF THE MAILS. 

/9/  VOLUME 84 STAT. 1127, 15 U.S.C. 1644 PROVIDES: 

"WHOEVER, IN A TRANSACTION AFFECTING INTERSTATE OR FOREIGN COMMERCE,
USES ANY COUNTERFEIT, FICTITIOUS, ALTERED, FORGED, LOST, STOLEN, OR
FRAUDULENTLY OBTAINED CREDIT CARD TO OBTAIN GOODS OR SERVICES, OR BOTH,
HAVING A RETAIL VALUE AGGREGATING $5,000 OR MORE, SHALL BE FINED NOT
MORE THAN $10,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH." 

THE COURT OF APPEALS FELT THAT THE ENACTMENT BY CONGRESS OF THE
ABOVE AMENDMENT TO THE TRUTH IN LENDING ACT MANIFESTED A LEGISLATIVE
JUDGMENT THAT CREDIT CARD FRAUD SCHEMES WERE TO BE EXCLUDED FROM THE
APPLICATION OF THE MAIL FRAUD STATUTE "UNLESS THE OFFENDER MAKES A
PURPOSEFUL USE OF THE MAILS TO ACCOMPLISH HIS SCHEME."  468 F.2D, AT
536. 

RESPONDENT CONTENDS THAT THE PASSAGE OF THE AMENDMENT INDICATES THAT
CONGRESS BELIEVED IN 1970 THAT CREDIT CARD FRAUD WAS NOT A FEDERAL
CRIME UNDER 18 U.S.C. 1341 OR OTHERWISE.  RESPONDENT ALSO NOTES THAT
THE LEGISLATIVE HISTORY OF THE PASSAGE OF THE AMENDMENT INDICATES THAT
THE ORIGINAL BILL, AS ENACTED BY THE SENATE, CONTAINED NO
JURISDICTIONAL AMOUNT LIMITATION.  THE SENATE-HOUSE CONFEREES, AT THE
REQUEST OF THE DEPARTMENT OF JUSTICE, LATER ADDED THE LIMITATION OF
FEDERAL JURISDICTION UNDER THE SECTION TO PURCHASES EXCEEDING $5,000. 
BRIEF FOR RESPONDENT 16 - 21. 

THE GOVERNMENT CONTENDS THAT THE COURT OF APPEALS ERRED IN ATTACHING
SIGNIFICANCE TO THE 1970 AMENDMENT, URGING THAT THERE IS NO INDICATION
THAT CONGRESS INTENDED ITS PROVISIONS TO BE THE SOLE VEHICLE FOR THE
FEDERAL PROSECUTION OF CREDIT CARD FRAUDS.  BRIEF FOR UNITED STATES 33
37, CITING UNITED STATES V. BEACON BRASS CO., 344 U.S. 43, 45 (1952). 

WE DEEM IT UNNECESSARY TO DETERMINE THE SIGNIFICANCE OF THE PASSAGE
OF THE AMENDMENT, SINCE WE CONCLUDE WITHOUT RESORT TO THAT FACT THAT
THE MAIL FRAUD STATUTE DOES NOT COVER THE RESPONDENT'S CONDUCT IN THIS
CASE. 

/10/  WE ARE ADMONISHED BY THE CHIEF JUSTICE IN DISSENT THAT THE
"MAIL FRAUD STATUTE MUST REMAIN STRONG TO BE ABLE TO COPE WITH THE NEW
VARIETIES OF FRAUD" WHICH THREATEN "THE FINANCIAL SECURITY OF OUR
CITIZENRY" AND WHICH "THE FEDERAL GOVERNMENT MUST BE EVER ALERT TO
COMBAT."  WE BELIEVE THAT UNDER OUR DECISION THE MAIL FRAUD STATUTE
REMAINS A STRONG AND USEFUL WEAPON TO COMBAT THOSE EVILS WHICH ARE
WITHIN THE BROAD REACH OF ITS LANGUAGE.  IF THE FEDERAL GOVERNMENT IS
TO ENGAGE IN COMBAT AGAINST FRAUDULENT SCHEMES NOT COVERED BY THE
STATUTE, IT MUST DO SO AT THE INITIATIVE OF CONGRESS AND NOT OF THIS
COURT. 

MR. JUSTICE BURGER, WITH WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

I JOIN IN THE DISSENT OF MR. JUSTICE WHITE WHICH FOLLOWS BUT ADD A
FEW OBSERVATIONS ON AN ASPECT OF THE COURT'S HOLDING WHICH SEEMS OF
SOME IMPORTANCE.  SECTION 1341 OF TITLE 18, U.S.C., HAS TRADITIONALLY
BEEN USED AGAINST FRAUDULENT ACTIVITY AS A FIRST LINE OF DEFENSE.  WHEN
A "NEW"  FRAUD DEVELOPS--AS CONSTANTLY HAPPENS--THE MAIL FRAUD STATUTE
BECOMES A STOPGAP DEVICE TO DEAL ON A TEMPORARY BASIS WITH THE NEW
PHENOMENON, UNTIL PARTICULARIZED LEGISLATION CAN BE DEVELOPED AND
PASSED TO DEAL DIRECTLY WITH THE EVIL.  "PRIOR TO THE PASSAGE OF THE
1933 (SECURITIES) ACT, MOST CRIMINAL PROSECUTIONS FOR FRAUDULENT
SECURITIES TRANSACTIONS WERE BROUGHT UNDER THE FEDERAL MAIL FRAUD
STATUTE."  MATHEWS, CRIMINAL PROSECUTIONS UNDER THE FEDERAL SECURITIES
LAWS AND RELATED STATUTES:  THE NATURE AND DEVELOPMENT OF SEC CRIMINAL
CASES, 39 GEO. WASH. L. REV. 901, 911 (1971).  LOAN SHARKS WERE BROUGHT
TO JUSTICE BY MEANS OF 18 U.S.C. 1341, LYNCH, PROSECUTING LOAN SHARKS
UNDER THE MAIL FRAUD STATUTE, 14 FORD.  L. REV. 150 (1945), BEFORE
CONGRESS, IN 1968, RECOGNIZED THE INTERSTATE CHARACTER OF LOANSHARKING
AND THE NEED TO PROVIDE FEDERAL PROTECTION AGAINST THIS ORGANIZED CRIME
ACTIVITY, AND ENACTED 18 U.S.C. 891 ET SEQ., OUTLAWING EXTORTIONATE
EXTENSIONS OF CREDIT.  ALTHOUGH INADEQUATE TO PROTECT THE BUYING AND
INVESTING PUBLIC FULLY, THE MAIL FRAUD STATUTE STOOD IN THE BREACH
AGAINST FRAUDS CONNECTED WITH THE BURGEONING SALE OF UNDEVELOPED REAL
ESTATE, UNTIL CONGRESS COULD EXAMINE THE PROBLEMS OF THE LAND SALES
INDUSTRY AND PASS INTO LAW THE INTERSTATE LAND SALES FULL DISCLOSURE
ACT, 82 STAT. 590, 15 U.S.C. 1701 ET SEQ. COFFEY & WELCH, FEDERAL
REGUALTION OF LAND SALES:  FULL DISCLOSURE COMES DOWN TO EARTH, 21 CASE
W. RES. L. REV. 5 (1969).  SIMILARLY, THE MAIL FRAUD STATUTE WAS USED
TO STOP CREDIT CARD FRAUD, BEFORE CONGRESS MOVED TO PROVIDE PARTICULAR
PROTECTION BY PASSING 15 U.S.C. 1644. 

THE MAIL FRAUD STATUTE CONTINUES TO REMAIN AN IMPORTANT TOOL IN
PROSECUTING FRAUDS IN THOSE AREAS WHERE LEGISLATION HAS BEEN PASSED
MORE DIRECTLY ADDRESSING THE FRAUDULENT CONDUCT.  MAIL FRAUD COUNTS
FILL PAGES OF SECURITIES FRAUD INDICTMENTS EVEN TODAY.  MATHEWS, 39
GEO. WASH. L. REV., AT 911.  DESPITE THE PERVASIVE GOVERNMENT
REGULATION OF THE DRUG INDUSTRY, POSTAL FRAUD STATUTES STILL PLAY AN
IMPORTANT ROLE IN CONTROLLING THE SOLICITATION OF MAIL-ORDER PURCHASES
BY DRUG DISTRIBUTORS BASED UPON FRAUDULENT MISREPRESENTATIONS.  HART,
THE POSTAL FRAUD STATUTES:  THEIR USE AND ABUSE, 11 FOOD DRUG COSM.  L.
J. 245, 247, 261 (1956).  MAZE'S INTERSTATE ESCAPADE--OF WHICH THERE
ARE NUMBERLESS COUNTERPARTS--DEMONSTRATES THAT THE FEDERAL MAIL FRAUD
STATUTE SHOULD HAVE A PLACE IN DEALING WITH FRAUDULENT CREDIT CARD USE
EVEN WITH 15 U.S.C. 1644 ON THE BOOKS. 

THE CRIMINAL MAIL FRAUD STATUTE MUST REMAIN STRONG TO BE ABLE TO
COPE WITH THE NEW VARIETIES OF FRAUD THAT THE EVER-INVENTIVE AMERICAN
"CON ARTIST" IS SURE TO DEVELOP.  ABUSES IN FRANCHISING AND THE GROWING
SCANDALS FROM PYRAMID SALES SCHEMES ARE BUT SOME OF THE THREATS TO THE
FINANCIAL SECURITY OF OUR CITIZENRY THAT THE FEDERAL GOVERNMENT MUST BE
EVER ALERT TO COMBAT.  COMMENT, MULTI-LEVEL OR PYRAMID SALES SYSTEMS:
FRAUD OR FREE ENTERPRISE, 18 S. D. L. REV. 358 (1973). 

THE DECISION OF THE COURT IN THIS CASE SHOULD BE VIEWED AS LIMITED
TO THE NARROW FACTS OF MAZE'S CRIMINAL ADVENTURES ON WHICH THE COURT
PLACES SO HEAVY A RELIANCE, AND TO THE COURT'S SEEMING DESIRE NOT TO
FLOOD THE FEDERAL COURTS WITH A MULTITUDE OF PROSECUTIONS FOR
RELATIVELY MINOR ACTS OF CREDIT CARD MISREPRESENTATION CONSIDERED AS
MORE APPROPRIATELY THE BUSINESS OF THE STATES.  THE COURT OF APPEALS,
WHOSE JUDGMENT IS TODAY AFFIRMED, WAS CAREFUL TO STATE THAT "(WE DO NOT
HOLD THAT THE FRAUDULENT USE OF A CREDIT CARD CAN NEVER CONSTITUTE A
VIOLATION OF THE MAIL FRAUD STATUTE."  468 F.2D 529, 536 (1972).  THE
COURT'S DECISION, THEN, CORRECT OR ERRONEOUS, DOES NOT MEAN THAT THE
UNITED STATES OUGHT, IN ANY WAY, TO SLACKEN ITS PROSECUTORIAL EFFORTS
UNDER 18 U.S.C. 1341 AGAINST THOSE WHO WOULD USE THE MAILS IN SCHEMES
TO DEFRAUD THE GUILELESS MEMBERS OF THE PUBLIC WITH WORTHLESS
SECURITIES, PATENT MEDICINES, DEEDS TO ARID AND INACCESSIBLE TRACTS OF
LAND, OR OTHER EMPTY PROMISES OF INSTANT WEALTH AND HAPPINESS.  I AGREE
WITH MR. JUSTICE WHITE THAT THE JUDGMENT OF THE COURT OF APPEALS WAS
ERROR AND SHOULD BE REVERSED. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BRENNAN,
AND MR. JUSTICE BLACKMUN CONCUR, DISSENTING. 

UNTIL TODAY THE ACTS CHARGED IN THE INDICTMENT IN THIS CASE-
KNOWINGLY CAUSING FOUR SEPARATE SALES INVOICES TO BE MAILED BY
MERCHANTS TO THE BANK THAT HAD ISSUED THE STOLEN BANKAMERICARD IN
FURTHERANCE OF A SCHEME TO DEFRAUD THE BANK BY USING THE CREDIT CARD
WITHOUT AUTHORIZATION AND BY FALSELY SECURING CREDIT--WOULD HAVE BEEN A
CRIMINAL OFFENSE PUNISHABLE AS MAIL FRAUD UNDER 18 U.S.C. 1341.  /1/
BUT NO MORE.  BY MISREADING THIS COURT'S PRIOR DECISIONS AND GIVING AN
UNAMBIGUOUS FEDERAL CRIMINAL STATUTE AN UNREALISTIC READING, THE
MAJORITY PLACES BEYOND THE REACH OF THE STATUTE A FRAUDULENT SCHEME
THAT BY LAW IS NOT CONSUMMATED UNTIL AFTER THE MAILS HAVE BEEN USED,
THAT UTILIZES THE MAILS AS A CENTRAL, NECESSARY INSTRUMENTALITY IN ITS
PERPETRATION, AND THAT DEMANDS FEDERAL INVESTIGATORY AND PROSECUTORIAL
RESOURCES IF IT IS TO BE EFFECTIVELY CHECKED.  BECAUSE I CANNOT
SUBSCRIBE TO THE MAJORITY'S REASONING OR THE RESULT IT REACHES, I
DISSENT. 

AS "PART OF HIS SCHEME AND ARTIFICE TO DEFRAUD," RESPONDENT WAS
CHARGED WITH "OBTAINING) PROPERTY AND SERVICES ON CREDIT THROUGH THE
USE OF"  AN UNLAWFULLY POSSESSED BANKAMERICARD AND "BY MEANS OF FALSE
AND FRAUDULENT PRETENSES, REPRESENTATIONS AND PROMISES...."  APP. 5,
6.  THE PROPERTY AND SERVICES WERE OBTAINED FROM CITIZENS FIDELITY BANK
AND TRUST COMPANY OF LOUISVILLE, KENTUCKY, A BANKAMERICARD LICENSEE,
CHARLES MEREDITH, THE AUTHORIZED CARD HOLDER AND USER, AND VARIOUS
PERSONS AND BUSINESS CONCERNS "WHICH HAD PREVIOUSLY ENTERED INTO
AGREEMENTS WITH BANKAMERICARD TO FURNISH PROPERTY AND SERVICES ON
CREDIT TO THE HOLDERS OF BANKAMERICARDS...."  ID., AT 6.  THE
INDICTMENT ALSO CHARGED THAT THE MAILS PLAYED AN INDISPENSABLE ROLE IN
RESPONDENT'S FRAUDULENT ACTIVITIES: 

   "IT WAS A FURTHER PART OF HIS SCHEME AND ARTIFICE TO DEFRAUD

  THAT THE DEFENDANT WOULD AND DID OBTAIN PROPERTY AND SERVICES ON

  CREDIT THROUGH THE USE OF (THE) BANKAMERICARD ... BY CHARGING

  PURCHASES ON CREDIT, WELL KNOWING AT THE TIME THAT THE BANK

  COPIES OF THE SALES INVOICES RECORDING THESE PURCHASES WOULD BE,

  AND WERE, DELIVERED BY MAIL TO CITIZENS FIDELITY BANK AND TRUST

  COMPANY, LOUISVILLE, KENTUCKY, ACCORDING TO THE DIRECTIONS

  THEREON FOR POSTING TO THE BANKAMERICARD ACCOUNT OF CHARLES L.

  MEREDITH, THAT COPIES OF THESE SALES INVOICES, TOGETHER WITH A

BILL FOR THE ACCUMULATED CHARGES, WOULD SUBSEQUENTLY BE MAILED IN

  THE NORMAL COURSE OF BUSINESS TO CHARLES L. MEREDITH; AND THAT

  THE DELAY INHERENT IN THIS POSTING AND MAILING WOULD ENABLE THE

  DEFENDANT TO CONTINUE TO MAKE PURCHASES WITH (THE) BANKAMERICARD

  ... BEFORE HIS SCHEME AND ARTIFICE TO DEFRAUD COULD BE

  DETECTED."  ID., AT 6 - 7. 

        I 

EXECUTING"  A FRAUDULENT SCHEME.  THE TRIAL COURT HAD INSTRUCTED THE
JURY THAT IT COULD CONVICT ON THE FOUR MAIL FRAUD COUNTS ONLY IF IT
FOUND, INTER ALIA, THAT "THE MAILS WERE IN FACT USED TO CARRY OUT THE
SCHEME AND THAT THE USE OF THE MAILS WAS REASONABLY FORESEEABLE.  THE
MAIL MATTER NEED NOT DISCLOSE ON ITS FACE A FRAUDULENT REPRESENTATION
OR PURPOSE, BUT NEED ONLY BE INTENDED TO ASSIST IN CARRYING OUT THE
SCHEME TO DEFRAUD."  APP. 37 (EMPHASIS ADDED).  VIEWING EACH FRAUDULENT
TRANSACTION AS CONSUMMATED AT THE TIME RESPONDENT RECEIVED GOODS IN
EXCHANGE FOR SIGNING THE BANKAMERICARD SALES DRAFTS, THE COURT OF
APPEALS HELD THAT RESPONDENT DID NOT CAUSE THE SUBSEQUENT MAILINGS "FOR
THE PURPOSE OF EXECUTING HIS FRAUDULENT SCHEME."  468 F.2D 529, 535
(EMPHASIS IN ORIGINAL).  THE COURT BELOW ACKNOWLEDGED THAT "THE FRAUD
WAS DIRECTED AGAINST THE CARD ISSUER AND THE CARD HOLDER," BUT IT
NEVERTHELESS CONCLUDED THAT THE RELEVANT PERSPECTIVE WAS RESPONDENT'S.
"AS FAR AS (RESPONDENT) WAS CONCERNED, HIS TRANSACTION WAS COMPLETE
WHEN HE CHECKED OUT OF EACH MOTEL; THE SUBSEQUENT BILLING WAS MERELY
'INCIDENTAL AND COLLATERAL TO THE SCHEME AND NOT A PART OF IT.'"  ID.,
AT 534, QUOTING KANN V. UNITED STATES, 323 U.S. 88, 95 (1944). 

THE MAJORITY HAS UNCRITICALLY EMBRACED THIS UNNECESSARILY
RESTRICTIVE APPROACH TO CONSTRUING THE STATUTE.  LIKE THE COURT OF
APPEALS, IT HAS SELECTIVELY SEIZED UPON LANGUAGE IN OUR PRIOR DECISIONS
IN PURSUIT OF ITS NOTION THAT THE FRAUDULENT SCHEME ENDED WHEN
RESPONDENT DUPED THE MOTELS INTO GIVING HIM GOODS AND SERVICES ON
CREDIT.  WE ARE TOLD, FOR EXAMPLE, AS IN KANN, SUPRA, WHERE THE MAILS
WERE USED TO DELIVER CHECKS DRAWN FROM A DUMMY CORPORATION AS PART OF A
SCHEME BY CORPORATE OFFICERS TO DEFRAUD THEIR OWN CORPORATION, THAT THE
SCHEME HERE "HAD REACHED FRUITION," THAT THE PERSON "INTENDED TO
RECEIVE THE (GOODS AND SERVICES) HAD RECEIVED IT IRREVOCABLY," THAT IT
WAS "IMMATERIAL ... TO ANY CONSUMMATION OF THE SCHEME" HOW THE SALES
INVOICES WERE FORWARDED BY THE MOTELS TO THE ISSUING BANK FOR PAYMENT
AND BILLING TO THE CARD HOLDER, AND THAT THE SO-CALLED BILLING PROCESS
WAS, AS PREVIOUSLY NOTED, "INCIDENTAL AND COLLATERAL TO THE SCHEME AND
NOT A PART OF IT."  323 U.S., AT 94, 95.  "THEREFORE, ONLY IF THE
MAILINGS WERE 'A PART OF THE EXECUTION OF THE FRAUD,' OR, AS WE SAID IN
PEREIRA V. UNITED STATES, 347 U.S. 1, 8, WERE 'INCIDENT TO AN ESSENTIAL
PART OF THE SCHEME,' DO THEY FALL WITHIN THE BAN OF THE FEDERAL MAIL
FRAUD STATUTE."  PARR V. UNITED STATES, 363 U.S. 370, 390 (1960). 

WHAT THE MAJORITY OVERLOOKS IS THE SALIENT FACT THAT THE FRAUD IN
THIS CASE--AND MOST OTHERS INVOLVING UNAUTHORIZED USE OF CREDIT CARDS-
WAS PRACTICED ON THE CARD ISSUER AND NOT ON THE INDIVIDUAL MERCHANTS
WHO FURNISHED LODGINGS AND MEALS TO RESPONDENT.  AS THE COURT OF
APPEALS ITSELF RECOGNIZED, "(THE MERCHANTS WHO HONORED THE
BANKAMERICARD WERE LIKELY INSULATED FROM LOSS UNDER THEIR AGREEMENTS
WITH BANKAMERICARD.  SEE BRANDEL & LEONARD, BANK CHARGE CARDS:  NEW
CASH OR NEW CREDIT, 69 MICH. L. REV. 1033, 1040 (1971)."  468 F.2D, 534
N. 3.  /2/  HERE, THEN, THE FRAUD WAS ULTIMATELY PERPETRATED UPON THE
CREDIT CARD ISSUER AND NOT THE MERCHANT.  /3/  THE MAILS THUS BECAME
"PART OF THE EXECUTION OF THE FRAUD...."  KANN V. UNITED STATES, SUPRA,
AT 95.  INDEED, THEY WERE "AN ESSENTIAL ELEMENT" AND NOT MERELY
"INCIDENT TO AN ESSENTIAL PART OF THE SCHEME...."  PEREIRA V. UNITED
STATES, 347 U.S. 1, 8 (1954). 

NOR HAD RESPONDENT'S PLAN REACHED FRUITION.  FOR HIS PART, HE MAY
VERY WELL NOT HAVE SCHEMED BEYOND OBTAINING THE GOODS AND SERVICES
UNDER FALSE PRETENSES WITH A STOLEN CREDIT CARD.  BUT FROM A LEGAL
STANDPOINT OF CRIMINAL FRAUD, THIS WAS ONLY THE FIRST AND CERTAINLY 

     "NOT THE LAST STEP IN THE FRAUDULENT SCHEME.  IT WAS A

  CONTINUING VENTURE....  THE USE OF THE MAILS WAS CRUCIAL TO THE

  TOTAL SUCCESS OF THE FRAUDULENT PROJECT.  WE ARE NOT JUSTIFIED IN

  CHOPPING UP ... THE SCHEME INTO SEGMENTS AND ISOLATING ONE PART

  FROM THE OTHERS.  THAT WOULD BE WARRANTED IF THE SCHEME WERE TO

  DEFRAUD (ONLY THE MERCHANTS).  BUT IT IS PLAIN THAT THESE PLANS

  HAD A WIDER REACH AND THAT BUT FOR THE USE OF THE MAILS THEY

  WOULD NOT HAVE BEEN FINALLY CONSUMMATED."  KANN V. UNITED STATES,

 SUPRA, AT 96 (DOUGLAS, J., DISSENTING). 

SINCE IT WAS THE CARD-ISSUING BANK THAT WAS ACTUALLY DEFRAUDED, THE
MAILS WERE EMPLOYED "FOR THE PURPOSE OF EXECUTING (THE) SCHEME...." 

       II 

THE MAILS FURTHER CONTRIBUTED TO THE REALIZATION OF RESPONDENT'S
FRAUDULENT SCHEME BY CREATING THE DELAY IN DETECTING THE FRAUD THAT
NECESSARILY RESULTS FROM THE TIME-CONSUMING PROCESSING OF CREDIT CARD
INVOICES BY MAIL.  SEE UNITED STATES V. CHASON, 451 F.2D 301, 303 - 304
(CA2), CERT. DENIED, 405 U.S. 1016 (1971).  DURING HIS TWO-WEEK, $2,000
TRANSCONTINENTAL SPENDING SPREE, RESPONDENT TOOK FULL ADVANTAGE OF THIS
INEVITABLE DELAY TO CONTINUE HIS UNLAWFUL ACTIVITIES.  IF THE MOTEL
OWNERS HAD EMPLOYED AN INSTANTANEOUS IDENTIFICATION OR VIRIFICATION
SYSTEM, RESPONDENT'S FRAUDULENT SCHEME WOULD MOST LIKELY HAVE BEEN
NIPPED IN THE BUD.  BUT THE SIMPLE TRUTH OF THE MATTER IS THAT THEY DID
NOT.  AS A DIRECT CONSEQUENCE OF THE PREVAILING BUSINESS PRACTICE OF
MAILING INVOICES TO THE ISSUER FOR SEBSEQUENT BILLING TO THE CARD
HOLDER AND THE SYSTEM'S ATTENDANT TIME DELAYS, RESPONDENT WAS ABLE TO
BUY VALUABLE TIME TO POSTPONE DETECTION AND THEREBY EXECUTE HIS
SCHEME. 

THE MAJORITY MYSTERIOUSLY IGNORES PRIOR DECISIONS THAT 18 U.S.C.
1341 REACHES "CASES WHERE THE USE OF THE MAILS IS A MEANS OF
CONCEALMENT SO THAT FURTHER FRAUDS WHICH ARE PART OF THE SCHEME MAY BE
PERPETRATED."  KANN V. UNITED STATES, SUPRA, AT 94 - 95.  SEE UNITED
STATES V. HENDRICKSON, 394 F.2D 807 (CA6 1968), CERT. DENIED, 393 U.S.
1031 (1969); UNITED STATES V. RIEDEL, 126 F.2D 81, 83 (CA7 1942);
UNITED STATES V. LOWE, 115 F.2D 596, 599 (CA7), CERT. DENIED, 311 U.S.
717 (1940).  MOREOVER, IT FAILS TO TAKE APPROPRIATE ACCOUNT OF OUR MOST
RECENT DECISION CONSTRUING 1341.  IN UNITED STATES V. SAMPSON, 371 U.S.
75 (1962), AN INDICTMENT FOR MAIL FRAUD HAD BEEN DISMISSED BY THE
DISTRICT COURT ON THE GROUND THAT THE MAILINGS AFTER THE MONEY HAD
ALREADY BEEN OBTAINED FROM THE VICTIMS WERE NOT "FOR THE PURPOSE OF
EXECUTING" THE SCHEME TO DEFRAUD.  WE REVERSED. 

     "WE ARE UNABLE TO FIND ANYTHING IN EITHER THE KANN OR THE PARR

  CASE WHICH SUGGESTS THAT THE COURT WAS LAYING DOWN AN AUTOMATIC

  RULE THAT A DELIBERATE, PLANNED USE OF THE MAILS AFTER THE

VICTIMS' MONEY HAD BEEN OBTAINED CAN NEVER BE 'FOR THE PURPOSE OF

  EXECUTING' THE DEFENDANTS' SCHEME.  RATHER THE COURT FOUND ONLY

  THAT UNDER THE FACTS IN THOSE CASES THE SCHEMES HAD BEEN FULLY

  EXECUTED BEFORE THE MAILS WERE USED.  AND COURT OF APPEALS

  DECISIONS RENDERED BOTH BEFORE AND AFTER KANN HAVE FOLLOWED THE

  VIEW THAT SUBSEQUENT MAILINGS CAN IN SOME CIRCUMSTANCES PROVIDE

  THE BASIS FOR AN INDICTMENT UNDER THE MAIL FRAUD STATUTES."  ID.,

  AT 80 (FOOTNOTE OMITTED). 

AS PREVIOUSLY INDICATED, THE INDICTMENT HERE CHARGED THAT RESPONDENT
KNEW THAT THE DELAY INHERENT IN THE POSTING AND MAILING OF THE CREDIT
CARD INVOICES WOULD ENABLE HIM TO CONTINUE MAKING PURCHASES WITH THE
PURLOINED CARD BEFORE HIS CRIMINAL CONDUCT COULD BE DETECTED. 
RESPONDENT ENGAGED IN A CRIMINAL ENTERPRISE THAT IS BY ITS VERY NATURE
SHORT-LIVED.  EVERY TIME DELAY IN THE CARD HOLDER'S RECEIPT OF THE
FORGED CREDIT CARD SLIPS ALLOWS THE SCHEME TO CONTINUE THAT MUCH
LONGER.  FOR MY PART, THE INDICTMENT CHARGED A CRIME UNDER 18 U.S.C.
1341, AND THE GOVERNEMNT ESTABLISHED RESPONDENT'S GUILT BEYOND A
REASONABLE DOUBT. 

        III 

THE MAJORITY'S DECISION HAS RAMIFICATIONS FAR BEYOND THE MERE
REVERSAL OF A LONE CRIMINAL CONVICTION.  IN THIS ERA OF THE "CASHLESS"
SOCIETY, AMERICANS ARE INCREASINGLY RESORTING TO THE USE OF CREDIT
CARDS IN THEIR DAY-TO-DAY CONSUMER PURCHASES.  TODAY WELL OVER 300
MILLION CREDIT CARDS ARE IN CIRCULATION, AND ANNUAL CHARGES EXCEED $60
BILLION.  IN 1969 ALONE, 1.5 MILLION CREDIT CARDS WERE LOST OR STOLEN,
RESULTING IN FRAUD LOSSES EXCEEDING $100 MILLION.  115 CONG. REC. 38987
(1969).  CURRENT ESTIMATES OF ANNUAL CREDIT CARD FRAUD LOSSES ARE PUT
AS HIGH AS $200 MILLION.  CLEVELAND, BANK CREDIT CARDS:  ISSUERS,
MERCHANTS, AND USERS, 90 BANKING L. J. 719, 729 (1973).  UNDER THE
RESULT REACHED BY THE MAJORITY, ONLY THOSE CREDIT CARD FRAUDS EXCEEDING
$5,000 COVERED BY 15 U.S.C. 1644 WILL BE SUBJECT TO FEDERAL CRIMINAL
JURISDICTION. 

YET THIS BURGEONING CRIMINAL ACTIVITY, AS EVIDENCED BY THE VERY
FACTS OF THIS CASE, DOES NOT RECOGNIZE ARTIFICIAL STATE BOUNDARIES.  IN
THE FUTURE, NATIONWIDE CREDIT CARD FRAUD SCHEMES WILL HAVE TO BE
PROSECUTED IN EACH INDIVIDUAL STATE IN WHICH A FRAUDULENT TRANSACTION
TRANSPIRED.  HERE, FOR EXAMPLE, RESPONDENT MUST NOW BE CHARGED AND
TRIED IN CALIFORNIA, LOUISIANA, AND FLORIDA.  THIS RESULT, NEVER
INTENDED BY CONGRESS, MAY PRECIPITATE A WIDESPREAD INABILITY TO
APPREHEND AND/OR PROSECUTE THOSE WHO WOULD HIJACK THE CREDIT CARD
SYSTEM. 

I DISSENT. 

/1/  SEE, E.G., UNITED STATES V. KELLY, 467 F.2D 262 (CA7 1972),
CERT. DENIED, 411 U.S. 933 (1973); UNITED STATES V. MADISON, 458 F.2D
974 (CA2), CERT. DENIED, 409 U.S. 859 (1972); UNITED STATES V. CHASON,
451 F.2D 301 (CA2 1971), CERT. DENIED, 405 U.S. 1016 (1972); UNITED
STATES V. KELLERMAN, 431 F.2D 319 (CA2), CERT. DENIED, 400 U.S. 957
(1970); UNITED STATES V. THOMAS, 429 F.2D 407 (CA5 1970); UNITED STATES
V. KELEM, 416 F.2D 346 (CA9 1969), CERT. DENIED, 397 U.S. 952 (1970);
ADAMS V. UNITED STATES, 312 F.2D 137 (CA5 1963). 

THE MAJORITY RECOGNIZES THAT PRIOR TO THIS DECISION AT LEAST FIVE
COURTS OF APPEALS HAD TAKEN A VIEW CONTRARY TO THAT REACHED BY THE
COURT BELOW.  ANTE, AT 398 N. 2.  THE COURT OF APPEALS IN THIS CASE
RELIED UPON UNITED STATES V. LYNN, 461 F.2D 759 (CA10 1972), BUT THE
INDICTMENT IN THAT CASE DID NOT ALLEGE THAT THE PLAN DEFRAUDED THE
AUTHORIZED CARD HOLDER OR THE CREDIT CARD ISSUER. 

/2/  ALMOST ALL OF THE BANK CREDIT CARD SYSTEMS PRESENTLY IN
OPERATION IN THIS COUNTRY RELY UPON A THREE-WAY TRANSACTION BETWEEN THE
CARD ISSUER, THE CARDHOLDER, AND A SUBSCRIBING RETAILER.  THIS
TRIPARTITE CREDIT CARD ARRANGEMENT BASICALLY ENTAILS THREE SEPARATE
CONTRACTUAL AGREEMENTS:  (1) BETWEEN THE BANK ISSUING THE CREDIT CARD
AND THE INDIVIDUAL CARDHOLDER; (2) BETWEEN ONE OF THE BANKS IN THE
SYSTEM AND A LOCAL MERCHANT; AND (3) BETWEEN THE MERCHANT AND THE
CARDHOLDER.  SEE GENERALLY COMMENT, THE TRIPARTITE CREDIT CARD
TRANSACTION:  A LEGAL INFANT, 48 CALIF. L. REV. 459 (1960). 

"THE MOST IMPORTANT OF THE MANY PARTIES TO SUCH A SYSTEM IS THE BANK
WHICH ISSUES THE CHARGE CARDS TO THE PUBLIC.  THE ISSUER-BANK
ESTABLISHES AN ACCOUNT ON BEHALF OF THE PERSON TO WHOM THE CARD IS
ISSUED, AND THE TWO ENTER INTO AN AGREEMENT WHICH GOVERNS THEIR
RELATIONSHIP.  THIS AGREEMENT ESTABLISHES A LINE OF CREDIT UNDER WHICH
THE CARDHOLDER MAY INCUR OBLIGATIONS TO THE ISSUER BY A CASH ADVANCE OR
THROUGH A PURCHASE OF GOODS OR SERVICES FROM ONE OF THE MERCHANT
MEMBERS." 

"THESE MERCHANTS ALSO HAVE AN AGREEMENT WITH THE BANKS REQUIRING
THEM TO HONOR ALL CHARGE CARDS ISSUED BY A MEMBER-BANK, AND ENABLING
THEM TO DEPOSIT SLIPS EVIDENCING SALES TO CARDHOLDERS IN AN ORDINARY
CHECKING ACCOUNT AT THE BANK WITH WHICH HE HAS REACHED AN AGREEMENT IN
RETURN FOR A DISCOUNTED CREDIT TO THAT ACCOUNT.  THESE SLIPS ARE THEN
CLEARED AND FORWARDED THROUGH AN INTERCHANGE SYSTEM TO THE MEMBER-BANK
WHICH ORIGINALLY ISSUED THE CARD AND FROM WHICH THE CARDHOLDER WILL BE
BILLED PERIODICALLY.  THE CARDHOLDER MUST THEN DECIDE WHETHER TO MAKE
PAYMENT IN FULL WITHIN A SPECIFIED PERIOD, FREE OF FINANCE CHARGES, OR
TO DEFER PAYMENT AND ULTIMATELY BE CHARGED AN EXTRA PERCENTAGE OF THE
AMOUNT BILLED."  COMMENT, BANK CREDIT CARDS--CONTEMPORARY PROBLEMS, 41
FORDHAM L. REV. 373, 374 (1972) (FOOTNOTE OMITTED). 

BECAUSE THE LEGAL RELATIONSHIP BETWEEN THE PARTIES IS DICTATED BY
THE TERMS OF THEIR RESPECTIVE AGREEMENTS, THE CONTRACT GOVERNS THE
DISTRIBUTION OF RISK FOR CREDIT CARD FRAUDS BETWEEN THE MERCHANT AND
THE ISSUER.  UNDER MOST SYSTEMS, WITH CERTAIN EXCEPTIONS FOR NEGLIGENCE
ON THE PART OF THE MERCHANT IF HE HONORS AN EXPIRED CARD OR ONE
APPEARING ON THE CURRENT "STOP LIST" OR IF HE MAKES A SALE FOR AN
AMOUNT IN EXCESS OF THE CARDHOLDER'S CREDIT LINE, THE ISSUER ASSUMES
ALL RISKS FOR FRAUDS.  MURRAY, A LEGAL-EMPIRICAL STUDY OF THE
UNAUTHORIZED USE OF CREDIT CARDS, 21 U. MIAMI L. REV. 811, 813 (1967);
NOTE, CREDIT CARDS:  DISTRIBUTING FRAUD LOSS, 77 YALE L. J. 1418, 1420
(1968); COMMENT, THE TRIPARTITE CREDIT CARD TRANSACTION, 48 CALIF. L.
REV., AT 464 - 465. 

"'AS FAR AS THE MERCHANT IS CONCERNED, HE IS IN THE SAME FINANCIAL
AND LEGAL POSITION AS IF HE WERE RECEIVING CERTIFIED CHECKS ON A BANK
THAT DOES NOT CLEAR AT PAR, WITH NO RISK THAT THE CHECK WILL BE
RETURNED OR PAYMENT STOPPED, OR AS IF HE WERE RECEIVING CASH AT A SMALL
DISCOUNT FOR THE BANK'S SERVICES.  THIS FIRM BANK COMMITMENT IS WHAT
MAKES THE MERCHANT WILLING TO ACCEPT A BANK CARD AS FREELY AS CASH AND
WHAT MAKES THE BANK CARD AS GOOD AS CASH TO ITS HOLDER (AND WITHOUT THE
RISKS OF CARRYING CASH). 

"'UNDER THESE ARRANGEMENTS, THE CARD-ISSUING BANK TAKES ALL THE
CREDIT RISK, WHICH IS APPROPRIATE TO THE BANKING FUNCTION IT PERFORMS,
THE CARDHOLDER SELECTS THE MERCHANT WITH WHOM HE WILL DEAL, AND THE
BANK AND THE CARDHOLDER-PURCHASER EXPECT THE MERCHANT TO ASSUME THE
MERCHANDISE RISK.  IT IS THIS DIVISION AND ALLOCATION OF RISKS BETWEEN
MERCHANT AND BANK WHICH PERMITS THE BANK CARD TO BE USED AS THOUGH IT
WERE CASH WITH HUNDREDS OF THOUSANDS OF PARTICIPATING MERCHANTS
THROUGHOUT THE COUNTRY AND ABROAD.'"  CLEVELAND, BANK CREDIT CARDS:
ISSUERS, MERCHANTS, AND USERS, 90 BANKING L. J. 719, 723 - 724 (1973),
QUOTING STATEMENT OF THE AMERICAN BANKERS ASSOCIATION, THE CONSUMERS
BANKERS ASSOCIATION, INTER-BANK CARD ASSOCIATION, AND NATIONAL
BANKAMERICARD, INC. TO THE FEDERAL TRADE COMMISSION IN THE MATTER OF
REVISED PROPOSED TRADE REGULATION RULE ON PRESERVATION OF CONSUMERS'
CLAIMS AND DEFENSES, 4 - 5 (MAR. 5, 1973). 

/3/  SECTION 133(A) OF THE TRUTH IN LENDING ACT LIMITED THE
CARDHOLDER'S LIABILITY FOR THE UNAUTHORIZED USE OF HIS CREDIT CARD TO
$50.  84 STAT. 1126, 15 U.S.C. 1643(A).     JEWEL S. LAFONTANT ARGUED
THE CAUSE FOR THE UNITED STATES.  ON THE BRIEF WERE SOLICITOR GENERAL
BORK, ASSISTANT ATTORNEY GENERAL PETERSEN, AND JEROME M. FEIT. 

WILLIAM T. WARNER, BY APPOINTMENT OF THE COURT, POST, P. 997, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :















N.L.R.B. V. SAVAIR MANUFACTURING CO., 414 U.S. 270 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 72 - 1231.  ARGUED NOVEMBER 12, 1973--DECIDED DECEMBER

           17, 1973; 470 F.2D 305, AFFIRMED. 


    A LABOR UNION'S OFFER TO WAIVE INITIATION FEES FOR ALL

  EMPLOYEES WHO SIGN UNION AUTHORIZATION CARDS BEFORE A

  CERTIFICATION ELECTION UNDER THE NATIONAL LABOR RELATIONS ACT

  INTERFERES WITH THE EMPLOYEES' RIGHT TO REFRAIN FROM UNION

  ACTIVITIES GUARANTEED BY 7 OF THE ACT; DOES NOT COMPORT WITH THE

  PRINCIPLE OF "FAIR AND FREE CHOICE OF BARGAINING REPRESENTATIVES

  BY EMPLOYEES" THAT IS INHERENT IN 9(C)(1)(A), NLRB V. TOWER CO.,

  329 U.S. 324; AND IS GROUND FOR DENYING ENFORCEMENT OF AN ORDER

  AGAINST THE EMPLOYER TO BARGAIN WITH THE UNION AFTER IT WINS THE

  ELECTION.  PP. 275 - 281. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, MARSHALL, POWELL, AND REHNQUIST, JJ., JOINED.  WHITE,
J., FILED A DISSENTION OPINION, IN WHICH BRENNAN AND BLACKMUN, JJ.,
JOINED, POST, P. 281. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD, ACTING PURSUANT TO 9(C) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED, 61 STAT. 144, /1/  29 U.S.C.
159(C), CONDUCTED AN ELECTION BY SECRET BALLOT AMONG THE PRODUCTION AND
MAINTENANCE EMPLOYEES OF RESPONDENT AT THE REQUEST OF THE MECHANICS
EDUCATIONAL SOCIETY OF AMERICA (HEREAFTER UNION).  UNDER THE ACT /2/
THE UNION, IF IT WINS THE ELECTION, BECOMES THE "EXCLUSIVE
REPRESENTATIVE OF ALL THE EMPLOYEES" IN THAT PARTICULAR UNIT FOR
PURPOSES OF COLLECTIVE BARGAINING.  THE UNION WON THE ELECTION BY A
VOTE OF 22 - 20. 

RESPONDENT FILED OBJECTIONS TO THE ELECTION, BUT AFTER AN
EVIDENTIARY HEARING, A HEARING OFFICER FOUND AGAINST RESPONDENT AND THE
BOARD CERTIFIED THE UNION AS THE REPRESENTATIVE OF THE EMPLOYEES IN
THAT UNIT.  RESPONDENT, HOWEVER, REFUSED TO BARGAIN.  THE UNION
THEREUPON FILED AN UNFAIR LABOR PRACTICE CHARGE WITH THE GENERAL
COUNSEL, WHO ISSUED A COMPLAINT ALLEGING THAT RESPONDENT HAD VIOLATED
8(A)(1) AND (5) OF THE ACT.  /3/  THE BOARD SUSTAINED THE ALLEGATIONS
AND ORDERED RESPONDENT TO BARGAIN WITH THE UNION.  194 N.L.R.B. 298. 
THE COURT OF APPEALS DENIED ENFORCEMENT OF THE ORDER.  470 F.2D 305. 
WE GRANTED THE PETITION FOR CERTIORARI, THERE APPARENTLY BEING A
CONFLICT BETWEEN THIS DECISION IN THE SIXTH CIRCUIT WITH A DECISION IN
THE EIGHTH CIRCUIT, NLRB V. DIT-MCO, INC., 428 F.2D 775, AND ALSO WITH
ONE IN THE NINTH CIRCUIT, NLRB V. G.K. TURNER ASSOCIATES, 457 F.2D
484.  WE AFFIRM. 

IT APPEARED THAT PRIOR TO THE ELECTION, "RECOGNITION SLIPS" WERE
CIRCULATED AMONG EMPLOYEES.  AN EMPLOYEE WHO SIGNED THE SLIP BEFORE THE
ELECTION  /4/  BECAME A MEMBER OF THE UNION AND WOULD NOT HAVE TO PAY
WHAT AT TIMES WAS CALLED AN "INITIATION FEE" AND AT TIMES A "FINE".  IF
THE UNION WAS VOTED IN, THOSE WHO HAD NOT SIGNED A RECOGNITION SLIP
WOULD HAVE TO PAY. 

THE ACTUAL SOLICITATION OF SIGNATURES ON THE "RECOGNITION SLIPS" WAS
NOT DONE BY UNION OFFICIALS.  UNION OFFICIALS, HOWEVER, EXPLAINED TO
EMPLOYEES AT MEETINGS THAT THOSE WHO SIGNED THE SLIPS WOULD NOT BE
REQUIRED TO PAY AN INITIATION FEE, WHILE THOSE WHO DID NOT WOULD HAVE
TO PAY.  THOSE OFFICIALS ALSO PICKED OUT SOME FIVE EMPLOYEES TO DO THE
SOLICITING AND AUTHORIZED THEM TO EXPLAIN THE UNION'S INITIATION-FEE
POLICY.  THOSE SOLICITED WERE TOLD THAT THERE WOULD BE NO INITIATION
FEE CHARGED THOSE WHO SIGNED THE SLIP BEFORE THE ELECTION.  UNDER THE
BYLAWS OF THE UNION, AN INITIATION FEE APPARENTLY WAS NOT TO BE HIGHER
THAN $10; BUT THE EMPLOYEES WHO TESTIFIED AT THE HEARING (1) DID NOT
KNOW HOW LARGE THE FEE WOULD BE AND (2) SAID THAT THEIR UNDERSTANDING
WAS THAT THE FEE WAS A "FINE" OR "ASSESSMENT". 

ONE EMPLOYEE, DONALD BRIDGEMAN, TESTIFIED THAT HE SIGNED THE SLIP TO
AVOID PAYING THE "FINE" IF THE UNION WON.  HE GOT THE MESSAGE DIRECTLY
FROM AN EMPLOYEE PICKED BY THE UNION TO SOLICIT SIGNATURES ON THE
"SLIPS."  SO DID THOMAS RICE, ANOTHER EMPLOYEE. 

THE BOARD ORIGINALLY TOOK THE POSITION THAT PREELECTION SOLICITATION
OF MEMBERSHIPS BY A UNION WITH A PROMISE TO WAIVE THE INITIATION FEE OF
THE UNION WAS NOT CONSISTENT WITH A FAIR AND FREE CHOICE OF BARGAINING
REPRESENTATIVES.  LOBUE BROS., 109 N.L.R.B. 1182.  LATER IN DIT--MCO,
INC., 163 N.L.R.B. 1019, THE BOARD EXPLAINED ITS CHANGED POSITION AS
FOLLOWS: 

    "WE SHALL ASSUME, ARGUENDO, THAT EMPLOYEES WHO SIGN CARDS WHEN

  OFFERED A WAIVER OF INITIATION FEES DO SO SOLELY BECAUSE NO COST

  IS THUS INVOLVED; THAT THEY IN FACT DO NOT AT THAT POINT REALLY

  WANT THE UNION TO BE THEIR BARGAINING REPRESENTATIVE.  THE ERROR

  OF THE LOBUE PREMISE CAN BE READILY SEEN UPON A REVIEW OF THE

  CONSEQUENCES OF SUCH EMPLOYEES CASTING VOTES FOR OR AGAINST UNION

  REPRESENTATION.  INITIALLY, IT IS OBVIOUS THAT EMPLOYEES WHO HAVE

RECEIVED OR BEEN PROMISED FREE MEMBERSHIPS WILL NOT BE REQUIRED

  TO PAY AN INITIATION FEE, WHATEVER THE OUTCOME OF THE VOTE.  IF

  THE UNION WINS THE ELECTION, THERE IS BY POSTULATE NO OBLIGATION;

  AND IF THE UNION LOSES, THERE IS STILL NO OBLIGATION, BECAUSE

  COMPULSION TO PAY AN INITIATION FEE ARISES UNDER THE ACT ONLY

  WHEN A UNION BECOMES THE EMPLOYEES'  REPRESENTATIVE AND

  NEGOTIATES A VALID UNION-SECURITY AGREEMENT.  THUS, WHATEVER

  KINDLY FEELING TOWARD THE UNION MAY BE GENERATED BY THE

  COST-REDUCTION OFFER, WHEN CONSIDERATION IS GIVEN ONLY TO THE

  QUESTION OF INITIATION FEES, IT IS COMPLETELY ILLOGICAL TO

  CHARACTERIZE AS IMPROPER INDUCEMENT OR COERCION TO VOTE 'YES' A

WAIVER OF SOMETHING THAT CAN BE AVOIDED SIMPLY BY VOTING 'NO.' 

     "THE ILLOGIC OF LOBUE DOES NOT BECOME ANY MORE LOGICAL WHEN

  OTHER CONSEQUENCES OF A VOTE FOR REPRESENTATION ARE CONSIDERED. 

  THUS, EMPLOYEES KNOW THAT IF A MAJORITY VOTE FOR THE UNION, IT

  WILL BE THEIR EXCLUSIVE REPRESENTATIVE, AND, PROVIDED A VALID

  UNION-SECURITY PROVISION IS NEGOTIATED, THEY WILL BE OBLIGED TO

  PAY DUES AS A CONDITION OF EMPLOYMENT.  THUS, VIEWED SOLELY AS A

  FINANCIAL MATTER, A 'NO' VOTE WILL HELP TO AVOID ANY SUBSEQUENT

  OBLIGATIONS, A 'YES' MAY WELL HELP TO INCUR SUCH OBLIGATIONS.  IN

  THESE CIRCUMSTANCES, AN EMPLOYEE WHO DID NOT WANT THE UNION TO

  REPRESENT HIM WOULD HARDLY BE LIKELY TO VOTE FOR THE UNION JUST

  BECAUSE THERE WOULD BE NO INITIAL COST INVOLVED IN OBTAINING

  MEMBERSHIP.  SINCE AN ELECTION RESULTING IN THE UNION'S DEFEAT

  WOULD ENTAIL NOT ONLY NO INITIAL COST, BUT ALSO INSURE THAT NO

  DUES WOULD HAVE TO BE PAID AS A CONDITION OF EMPLOYMENT, THE

  FINANCIAL INDUCEMENT, IF A FACTOR AT ALL, WOULD BE IN THE

  DIRECTION OF A VOTE AGAINST THE UNION, RATHER THAN FOR IT."  ID.,

  AT 1021 - 1022. 

WE ARE ASKED TO RESPECT THE EXPERTISE OF THE BOARD ON THIS ISSUE,
GIVING IT LEEWAY TO ALTER OR MODIFY ITS POLICY IN LIGHT OF ITS ONGOING
EXPERIENCE WITH THE PROBLEM.  THE DIFFICULTY IS NOT IN THAT PRINCIPLE
BUT WITH THE STANDARDS TO GOVERN THE CONDUCT OF ELECTIONS UNDER
9(C)(1)(A).  WE SAID IN NLRB V. TOWER CO., 329 U.S. 324, 330, THAT THE
DUTY OF THE BOARD WAS TO ESTABLISH "THE PROCEDURE AND SAFEGUARDS
NECESSARY TO INSURE THE FAIR AND FREE CHOICE OF BARGAINING
REPRESENTATIVES BY EMPLOYEES." 

IT IS OF COURSE TRUE AS WE SAID IN NLRB V. WYMAN-GORDON CO., 394
U.S. 759, 767, THAT "CONGRESS GRANTED THE BOARD A WIDE DISCRETION TO
ENSURE THE FAIR AND FREE CHOICE OF BARGAINING REPRESENTATIVES."  SEE
ALSO NLRB V. WATERMAN, S. S. CO., 309 U.S. 206, 226.  BUT IN THIS CASE
TWO OPPOSED GROUPS ARE IN CONTENTION:  ONE COMPOSED OF THOSE WHO WANT A
UNION AND THE OTHER, OF THOSE WHO PREFER NOT TO HAVE ONE.  THE BOARD IN
ITS DIT--MCO OPINION SAYS "IT IS COMPLETELY ILLOGICAL TO CHARACTERIZE
AS IMPROPER INDUCEMENT OR COERCION" A WAIVER OF INITIATION FEES FOR
THOSE WHO VOTE "YES"  WHEN THE WHOLE PROBLEM CAN BE AVOIDED BY VOTING
"NO."  163 N.L.R.B., AT 1021 - 1022.  BUT THE BOARD'S ANALYSIS IGNORES
THE REALITIES OF THE SITUATION. 

WHATEVER HIS TRUE INTENTIONS, AN EMPLOYEE WHO SIGNS A RECOGNITION
SLIP PRIOR TO AN ELECTION IS INDICATING TO OTHER WORKERS THAT HE
SUPPORTS THE UNION.  HIS OUTWARD MANIFESTATION OF SUPPORT MUST OFTEN
SERVE AS A USEFUL CAMPAIGN TOOL IN THE UNION'S HANDS TO CONVINCE OTHER
EMPLOYEES TO VOTE FOR THE UNION, IF ONLY BECAUSE MANY EMPLOYEES RESPECT
THEIR COWORKER'S VIEWS ON THE UNIONIZATION ISSUE.  BY PERMITTING THE
UNION TO OFFER TO WAIVE AN INITIATION FEE FOR THOSE EMPLOYEES SIGNING A
RECOGNITION SLIP PRIOR TO THE ELECTION, THE BOARD ALLOWS THE UNION TO
BUY ENDORSEMENTS AND PAINT A FALSE PORTRAIT OF EMPLOYEE SUPPORT DURING
ITS ELECTION CAMPAIGN. 

THAT INFLUENCE MAY WELL HAVE BEEN FELT HERE FOR, AS NOTED, /5/
THERE WERE 28 WHO SIGNED UP WITH THE UNION BEFORE THE ELECTION PETITION
WAS FILED WITH THE BOARD AND EITHER SEVEN OR EIGHT MORE WHO SIGNED UP
BEFORE THE ELECTION.  WE DO NOT BELIEVE THAT THE STATUTORY POLICY OF
FAIR ELECTIONS PRESCRIBED IN THE TOWER CASE PERMITS ENDORSEMENTS,
WHETHER FOR OR AGAINST THE UNION, TO BE BOUGHT AND SOLD IN THIS
FASHION. 

IN ADDITION, WHILE IT IS CORRECT THAT THE EMPLOYEE WHO SIGNS A
RECOGNITION SLIP IS NOT LEGALLY BOUND TO VOTE FOR THE UNION AND HAS NOT
PROMISED TO DO SO IN ANY FORMAL SENSE, CERTAINLY THERE MAY BE SOME
EMPLOYEES WHO WOULD FEEL OBLIGED TO CARRY THROUGH ON THEIR STATED
INTENTION TO SUPPORT THE UNION.  AND ON THE FACTS OF THIS CASE, THE
CHANGE OF JUST ONE VOTE WOULD HAVE RESULTED IN A 21 - 21 ELECTION
RATHER THAN A 22 - 20 ELECTION. 

ANY PROCEDURE REQUIRING A "FAIR" ELECTION MUST HONOR THE RIGHT OF
THOSE WHO OPPOSE A UNION AS WELL AS THOSE WHO FAVOR IT.  THE ACT IS
WHOLLY NEUTRAL WHEN IT COMES TO THAT BASIC CHOICE.  BY 7 OF THE ACT
EMPLOYEES HAVE THE RIGHT NOT ONLY TO "FORM, JOIN, OR ASSIST" UNIONS BUT
ALSO THE RIGHT "TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES."  29
U.S.C. 157.  AN EMPLOYER WHO PROMISES TO INCREASE THE FRINGE BENEFITS
BY $10 FOR EACH EMPLOYEE WHO VOTES AGAINST THE UNION, IF THE UNION
LOSES THE ELECTION, WOULD CROSS THE FORBIDDEN LINE UNDER OUR
DECISIONS.  SEE NLRB V. EXCHANGE PARTS CO., 375 U.S. 405.  THE RIGHT OF
EMPLOYEES TO "FORM, JOIN, OR ASSIST' LABOR UNIONS GUARANTEED BY 7 HAS
AN EXPRESS SANCTION IN 8(A)(1) WHICH MAKES IT AN UNFAIR LABOR PRACTICE
FOR AN EMPLOYER "TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES" IN
THE EXERCISE OF THOSE RIGHTS.  29 U.S.C. 157, 158(A)(1).  SUCH
INTERFERENCE IS AN UNFAIR LABOR PRACTICE AS WE HELD IN NLRB V. EXCHANGE
PARTS CO., SUPRA.  BUT, AS ALREADY NOTED, 7 GUARANTEES THE RIGHT OF
EMPLOYEES "TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES." 

CONGRESS HAS ALSO LISTED IN 8(B) OF THE ACT "UNFAIR" LABOR PRACTICES
OF UNIONS.  29 U.S.C. 158(B).  THERE IS NO EXPLICIT PROVISION WHICH
MAKES "INTERFERENCE" BY A UNION WITH THE RIGHT OF AN EMPLOYEE TO
"REFRAIN"  FROM UNION ACTIVITIES AN UNFAIR LABOR PRACTICE. 


    "THE EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION, OR THE

  DISSEMINATION THEREOF, WHETHER IN WRITTEN, PRINTED, GRAPHIC, OR

  VISUAL FORM, SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR

  LABOR PRACTICE UNDER ANY OF THE PROVISIONS OF THIS SUBCHAPTER, IF

  SUCH EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR

  PROMISE OF BENEFIT."  29 U.S.C. 158(C) (EMPHASIS ADDED). 

WHETHER IT WOULD BE AN "UNFAIR" LABOR PRACTICE FOR A UNION TO
PROMISE A SPECIAL BENEFIT TO THOSE WHO SIGN UP FOR A UNION SEEMS NOT TO
HAVE BEEN SQUARELY RESOLVED.  /6/  THE RIGHT OF A FREE CHOICE IS,
HOWEVER, INHERENT IN THE PRINCIPLES REFLECTED IN 9(C)(1)(A). 

WHEN THE DISSENT SAYS THAT "(THE SPECIAL INDUCEMENT IS TO SIGN THE
CARD, NOT TO VOTE FOR THE UNION" AND THAT TREATING THE TWO CHOICES AS
ONE IS UNTENABLE, IT OVERLOOKS CASES LIKE NLRB V. GISSEL PACKING CO.,
395 U.S. 575.  THERE WE HELD THAT THE GATHERING OF AUTHORIZATION CARDS
FROM A MAJORITY OF THE EMPLOYEES IN THE BARGAINING UNIT MAY ENTITLE THE
UNION TO REPRESENT THE EMPLOYEES FOR COLLECTIVE-BARGAINING PURPOSES,
EVEN THOUGH THERE HAS BEEN AND WILL BE NO ELECTION, ID., AT 582 - 583,
AND THAT REJECTION OF THAT AUTHORIZATION BY THE EMPLOYER IS AN UNFAIR
LABOR PRACTICE.  WHERE THE SOLICITATION OF CARDS IS REPRESENTED AS
BEING SOLELY FOR THE PURPOSE OF OBTAINING AN ELECTION, A CONTRARY
RESULT IS INDICATED.  ID., AT 584, 606.  THUS THE SOLICITATION OF
AUTHORIZATION CARDS MAY SERVE ONE OF TWO ENDS.  OF COURSE, WHEN AN
ELECTION IS CONTEMPLATED, AN EMPLOYEE DOES NOT BECOME A MEMBER OF THE
UNION MERELY BY SIGNING A CARD.  BUT PRIOR TO THE ELECTION IF THE UNION
RECEIVES OVERWHELMING SUPPORT, THE PRO-UNION GROUP MAY DECIDE TO TREAT
THE UNION AUTHORIZATION CARDS AS AUTHORIZING IT TO CONDUCT COLLECTIVE
BARGAINING WITHOUT AN ELECTION.  THE LATENT POTENTIAL OF THAT
ALTERNATIVE USE OF AUTHORIZATION CARDS CAUTIONS US TO TREAT THE
SOLICITATION OF AUTHORIZATION CARDS IN EXCHANGE FOR CONSIDERATION OF
FRINGE BENEFITS GRANTED BY THE UNION AS A SEPARATE STEP PROTECTED BY
THE SAME KIND OF MORAL STANDARD THAT GOVERNS ELECTIONS THEMSELVES. 

THE BOARD IN ITS SUPERVISION OF UNION ELECTIONS MAY NOT SANCTION
PROCEDURES THAT CAST THEIR WEIGHT FOR THE CHOICE OF A UNION AND AGAINST
A NONUNION SHOP OR FOR A NONUNION SHOP AND AGAINST A UNION. 

IN THE EXCHANGE PARTS CASE WE SAID, THAT ALTHOUGH THE BENEFITS
GRANTED BY THE EMPLOYER WERE PERMANENT AND UNCONDITIONAL, EMPLOYEES
WERE "NOT LIKELY TO MISS THE INFERENCE THAT THE SOURCE OF BENEFITS NOW
CONFERRED IS ALSO THE SOURCE FROM WHICH FUTURE BENEFITS MUST FLOW AND
WHICH MAY DRY UP IF IT IS NOT OBLIGED."  375 U.S., AT 409.  IF WE
RESPECT, AS WE MUST, THE STATUTORY RIGHT OF EMPLOYEES TO RESIST EFFORTS
TO UNIONIZE A PLANT, WE CANNOT ASSUME THAT UNIONS EXERCISING POWERS ARE
WHOLLY BENIGN TOWARDS THEIR ANTAGONISTS WHETHER THEY BE NONUNION
PROTAGONISTS OR THE EMPLOYER.  THE FAILURE TO SIGN A RECOGNITION SLIP
MAY WELL SEEM OMINOUS TO NONUNIONISTS WHO FEAR THAT IF THEY DO NOT SIGN
THEY WILL FACE A WRATHFUL UNION REGIME, SHOULD THE UNION WIN.  THAT
INFLUENCE MAY WELL HAVE HAD A DECISIVE IMPACT IN THIS CASE WHERE A
CHANGE OF ONE VOTE WOULD HAVE CHANGED THE RESULT. 

     AFFIRMED.     /1/  SECTION 9(C)(1)(A) PROVIDES IN PART: 

     "(C)(1) WHENEVER A PETITION SHALL HAVE BEEN FILED, IN

  ACCORDANCE WITH SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE

  BOARD-- 

     (A) BY AN EMPLOYEE OR GROUP OF EMPLOYEES OR ANY INDIVIDUAL OR

  LABOR ORGANIZATION ACTING IN THEIR BEHALF ALLEGING THAT A

  SUBSTANTIAL NUMBER OF EMPLOYEES (I) WISH TO BE REPRESENTED FOR

  COLLECTIVE BARGAINING AND THAT THEIR EMPLOYER DECLINES TO

  RECOGNIZE THEIR REPRESENTATIVE AS THE REPRESENTATIVE DEFINED IN

  (9(A)) . . .

.          .          .          . 

"THE BOARD SHALL INVESTIGATE SUCH PETITION AND IF IT HAS REASONABLE
CAUSE TO BELIEVE THAT A QUESTION OF REPRESENTATION AFFECTING COMMERCE
EXISTS SHALL PROVIDE FOR AN APPROPRIATE HEARING UPON DUE NOTICE . . .IF
THE BOARD FINDS UPON THE RECORD OF SUCH HEARING THAT SUCH A QUESTION OF
REPRESENTATION EXISTS, IT SHALL DIRECT AN ELECTION BY SECRET BALLOT AND
SHALL CERTIFY THE RESULTS THEREOF."  29 U.S.C. 159(C). 

/2/  SECTION 9(A) PROVIDES: 

     "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 . . ."  29

  U.S.C. 159(A). 

/3/  SECTIONS 8(A)(1) AND (5) PROVIDE: 

     "(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 (7);

        .          .          .          . 

     "(5) TO REFUSE TO BARGAIN COLLECTIVELY WITH THE
REPRESENTATIVES

  OF HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION (9(A))." 

  29 U.S.C. 158(A) (1) AND (5). 

/4/  THE QUESTION FOR REVIEW PRESENTED BY THE BOARD IS WHETHER THE
"BOARD PROPERLY CONCLUDED THAT A UNION'S OFFER TO WAIVE INITIATION FEES
FOR ALL EMPLOYEES WHO SIGN UNION AUTHORIZATION CARDS BEFORE A BOARD
REPRESENTATION ELECTION, IF THE UNION WINS THE ELECTION, DOES NOT TEND
TO INTERFERE WITH EMPLOYEE FREE CHOICE IN THE ELECTION."  (EMPHASIS
ADDED.)  THERE WAS TESTIMONY BY ALFRED SMITH, NATIONAL SECRETARY
TREASURER OF THE UNION, THAT HE TOLD THE EMPLOYEES AT A MEETING THAT
THE WAIVER OF INITIATION FEES WAS OPEN TO ALL WHO SIGNED THE
AUTHORIZATION CARDS BEFORE THE COLLECTIVE-BARGAINING CONTRACT WAS
SIGNED. 

THE HEARING OFFICER, HOWEVER, FOUND THAT: 

     "BRIDGEMAN FURTHER TESTIFIED THAT SUBSEQUENT TO THAT MEETING,

  AND PRIOR TO THE ELECTION, BENNIE MCKNIGHT TOLD EMPLOYEES THAT IF

  THEY SIGNED THE UNION MEMBERSHIP AND AUTHORIZATION CARD BEFORE

  THE ELECTION, THERE WOULD BE NO UNION 'INITIATION FEE' IF THE

  UNION WERE SUCCESSFUL AT THE ELECTION."  (EMPHASIS ADDED.) 

WHILE BRIDGEMAN'S TESTIMONY ABOUT MCKNIGHT'S REPRESENTATIONS AFTER
THE MEETING MIGHT HAVE BEEN ONLY IMPLICIT, THE HEARING OFFICER ALSO
REFERRED TO BRIDGEMAN'S TESTIMONY THAT SMITH HIMSELF HAD STATED AT THE
MEETING THAT WAIVER OF THE INITIATION FEE WOULD BE LIMITED TO THOSE
SIGNING UP BEFORE THE ELECTION.  THE HEARING OFFICER CLEARLY PROCEEDED
ON THE PREMISE THAT THE WAIVER WAS OPEN ONLY TO THOSE WHO SIGNED UP
BEFORE THE ELECTION: 

"THE EMPLOYER FURTHER ARGUES THAT IT IS AN ECONOMIC INDUCEMENT
CONTINGENT UPON HOW EMPLOYEES VOTE IN THE ELECTION AND ON THE RESULTS
OF THE ELECTION, AND AS SUCH, CONSTITUTES AN OBJECTIONABLE INDUCEMENT. 
THIS ARGUMENT, HOWEVER, HAS BEEN REJECTED BY THE BOARD.  IN THE DIT
MCO, INC., 163 N.L.R.B. NO. 147 CASE (P. 1019), THE BOARD HELD THAT A
PROVISIONAL WAIVER OF INITIATION FEES PRIOR TO ELECTION IS NOT IMPROPER
REGARDLESS OF WHETHER IT IS CONTINGENT UPON THE RESULTS OF THE
ELECTION.  THE BOARD POINTED OUT THAT IT WOULD BE UNREASONABLE TO
CONCLUDE THAT A STATEMENT BY THE UNION DURING AN ELECTION TO THE EFFECT
THAT AN ASSESSMENT OF MONEY OR AN OBLIGATION TO PAY MONEY WHICH COULD
BE AVOIDED BY THE EXECUTION OF A UNION MEMBERSHIP CARD PRIOR TO THE
ELECTION, WOULD INFLUENCE A VOTE IN FAVOR OF THE UNION WHEN THE
SIMPLEST WAY TO AVOID THE INCURRENCE OF ANY FINANCIAL OBLIGATION WOULD
BE TO VOTE 'NO.'  THUS, IT WOULD APPEAR THAT ANY THREAT TO IMPOSE A
'FINE,'  'ASSESSMENT' OR 'INITIATION FEE,' OR 'PAYMENT TO JOIN THE
UNION,'  ALTHOUGH IT MAY INDUCE AN EMPLOYEE TO EXECUTE A UNION
AUTHORIZATION MEMBERSHIP CARD, WOULD MORE PROBABLY INDUCE HIM TO VOTE
'NO' AT THE ELECTION."  (EMPHASIS ADDED.) 

THE COURT OF APPEALS READ THE HEARING OFFICER'S REPORT TO STATE THAT
THE WAIVER WAS LIMITED TO THOSE SIGNING UP BEFORE THE ELECTION, AS DO
WE.  SUCH A READING IS AMPLY SUPPORTED BY THE EVIDENCE IN THE RECORD
BEYOND THE TESTIMONY TO WHICH WE HAVE ALREADY ALLUDED.  THE RECORD
DEMONSTRATES THE PRESSURE WHICH EMPLOYEES FELT TO SIGN UP WITH THE
UNION QUICKLY, BEFORE THE ELECTION AND PERHAPS EVEN BEFORE THE
REPRESENTATION PETITION ITSELF WAS FILED, A PRESSURE UTTERLY
INCONSISTENT WITH A BELIEF THAT A WAIVER WOULD BE AVAILABLE TO THEM UP
TO THE TIME A COLLECTIVE-BARGAINING AGREEMENT WAS SIGNED AFTER THE
ELECTION.  IT IS ALSO SUPPORTED BY THE FACT THAT 28 INDIVIDUALS SIGNED
UP WITH THE UNION BEFORE THE ELECTION PETITION WAS FILED WITH THE BOARD
ON AUGUST 12, 1970, AND APPARENTLY AN ADDITIONAL SEVEN OR EIGHT SIGNED
UP BEFORE THE SEPTEMBER 22, 1970, ELECTION.  BUT THERE IS NO INDICATION
OF ANY INDIVIDUALS SIGNING UP WITH THE UNION AFTER THE ELECTION, WHICH
WOULD BE THE OBVIOUSLY RATIONAL DECISION ONCE THE UNION HAD WON THE
ELECTION. 

THE BOARD ARGUES THAT UNIONS HAVE A VALID INTEREST IN WAIVING THE
INITIATION FEE WHEN THE UNION HAS NOT YET BEEN CHOSEN AS A BARGAINING
REPRESENTATIVE, BECAUSE "'(EMPLOYEES OTHERWISE SYMPATHETIC TO THE UNION
MIGHT WELL HAVE BEEN RELUCTANT TO PAY OUT MONEY BEFORE THE UNION HAD
DONE ANYTHING FOR THEM.  WAIVER OF THE (INITIATION FEES) WOULD REMOVE
THIS ARTIFICIAL OBSTACLE TO THEIR ENDORSEMENT OF THE UNION.'"  SEE
AMALGAMATED CLOTHING WORKERS V. NLRB, 345 F.2D 264, 268.  WHILE THIS
UNION INTEREST IS LEGITIMATE, THE BOARD'S ARGUMENT IGNORES THE FACT
THAT THIS INTEREST CAN BE PRESERVED AS WELL BY WAIVER OF INITIATION
FEES AVAILABLE NOT ONLY TO THOSE WHO HAVE SIGNED UP WITH THE UNION
BEFORE AN ELECTION BUT ALSO TO THOSE WHO JOIN AFTER THE ELECTION.  THE
LIMITATION IMPOSED BY THE UNION IN THIS CASE--TO THOSE JOINING BEFORE
THE ELECTION--IS NECESSARY ONLY BECAUSE IT SERVES THE ADDITIONAL
PURPOSE OF AFFECTING THE UNION ORGANIZATIONAL CAMPAIGN AND THE
ELECTION. 

/5/  SEE N.4, SUPRA. 

/6/  THE LOWER COURTS HAVE RECOGNIZED THAT PROMISING BENEFITS OR
CONFERRING BENEFITS BEFORE REPRESENTATION ELECTIONS MAY UNDULY
INFLUENCE THE REPRESENTATIONAL CHOICES OF EMPLOYEES WHERE THE OFFER IS
NOT ACROSS THE BOARD TO ALL EMPLOYEES BUT, AS HERE, ONLY TO THOSE WHO
SIGN UP PRIOR TO THE ELECTION.  SEE, E.G., NLRB V. GORBEA, PEREZ &
MORELL, 328 F.2D 679, 681 - 682 AND NN. 6 - 7 (CA1 1964) (PROMISE TO
WAIVE INITIATION FEE FOR THOSE JOINING UNION PRIOR TO ELECTION, BUT NOT
AFTER, MAY SUBSTANTIALLY INFLUENCE ELECTION); AMALGAMATED CLOTHING
WORKERS V. NLRB, 345 F.2D 264, 268 - 269 (CA2 1965) (FRIENDLY, J.,
CONCURRING) (IMPROPER TO WAIVE FEES FOR THOSE JOINING UNION IMMEDIATELY
WHILE INDICATING THAT THIS IS FORECLOSED TO THOSE JOINING LATER).  SEE
ALSO COLLINS & AIKMAN CORP. V. NLRB, 383 F.2D 722, 728 - 729 (CA4 1967)
(PAYING EMPLOYEE $7 TO BE OBSERVER AT ELECTION IS AN "UNREASONABLE OR
EXCESSIVE ECONOMIC INDUCEMENT" POTENTIALLY INFLUENCING OTHER EMPLOYEES
AND IS GROUND TO SET ASIDE ELECTION); NLRB V. COMMERCIAL LETTER, INC.,
445 F.2D 109 (CA8 1972) (DISPROPORTIONATE PAYMENTS TO EMPLOYEES
ATTENDING UNION "HEARINGS"  PRIOR TO REPRESENTATION ELECTION). 

THE NLRB HAS ITSELF RECOGNIZED IN OTHER CONTEXTS THAT PROMISING OR
CONFERRING BENEFITS MAY UNDULY INFLUENCE REPRESENTATION ELECTIONS.  SEE
E.G., WAGNER ELECTRIC CORP., 167 N.L.R.B. 532, 533 (GRANT OF LIFE
INSURANCE POLICY TO THOSE WHO SIGNED WITH UNION BEFORE REPRESENTATION
ELECTION "SUBJECTS THE DONEES TO A CONSTRAINT TO VOTE FOR THE DONOR
UNION"); GENERAL CABLE CORP., 170 N.L.R.B. 1682 ($5 GIFT TO EMPLOYEES
BY UNION BEFORE ELECTION, EVEN WHEN NOT CONDITIONED ON OUTCOME OF
ELECTION, WAS INDUCEMENT TO CAST BALLOTS FAVORABLE TO UNION); TELETYPE
CORP., 122 N.L.R.B. 1594 (PAYMENT OF MONEY BY RIVAL UNIONS TO THOSE
ATTENDING PRE-ELECTION MEETINGS). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

THE REPORT OF THE HEARING OFFICER, FILED IN RESPONSE TO THE
COMPANY'S OBJECTIONS TO THE ELECTION, REVEALS THAT PRIOR TO THE FILING
OF THE REPRESENTATION PETITION, A UNION ORGANIZER HAD TOLD EMPLOYEES
THAT, IF THE UNION WON THE ELECTION, THEY WOULD BE SUBJECT TO AN
INITIATION FEE OR "FINE"  IF THEY DID NOT SIGN AN AUTHORIZATION CARD. 
THE UNION WAS THEN ENGAGED IN SECURING THE NECESSARY 30% SHOWING OF
UNION SUPPORT WHICH WOULD ENTITLE IT TO HOLD AN ELECTION UNDER THE
LABOR BOARD'S RULES.  29 CFR 101.17, 101.18 (1973).  THE OFFICER
CONCLUDED THAT THERE WAS "INSUFFICIENT EVIDENCE . . . THAT A THREAT OF
A 'FINE' OCCURRED EITHER BEFORE OR AFTER THE FILING DATE OF THE
PETITION."  IN ANY EVENT, HE ALSO CONCLUDED THAT CONDUCT OCCURRING
BEFORE THE FILING OF AN ELECTION PETITION WAS NOT GROUND FOR SETTING
ASIDE THE ELECTION SINCE "(WHETHER OR NOT A SUFFICIENT VALID SHOWING OF
INTEREST WAS OBTAINED, CONSTITUTES A MATTER FOR ADMINISTRATIVE
DETERMINATION."  CF. GOODYEAR TIRE & RUBBER CO., 138 N.L.R.B. 453
(1962).  /1/ 

AFTER THE REPRESENTATION PETITION WAS FILED AND THE ELECTION
CAMPAIGN PROPER COMMENCED, THE UNION'S SECRETARY-TREASURER, ALFRED
SMITH, ADDRESSED A GROUP OF ABOUT 20 EMPLOYEES AT AN ORGANIZATION
MEETING.  IN RESPONSE TO A QUESTION ABOUT THE INITIATION FEE, SMITH
INDICATED THAT THERE WAS "A SMALL FEE" WHICH WOULD BE WAIVED FOR ALL
EMPLOYEES WHO SIGNED CARDS PRIOR TO THE ELECTION.  /2/  THE FEE WAS, IN
FACT, $10.  QUALIFICATION FOR FEE WAIVER WAS OBTAINED BY SIGNING
MEMBERSHIP CARDS, BUT THE TESTIMONY INDICATED THAT NO ONE INCURRED ANY
OBLIGATION TO THE UNION UNTIL AND UNLESS THE UNION BECAME THE
BARGAINING AGENT AND A COLLECTIVE CONTRACT WAS SIGNED.  THE HEARING
OFFICER FOUND "NO EVIDENCE, NOR ANY CONTENTION, THAT THE UNION
MISREPRESENTED TO EMPLOYEES THAT THEY WOULD HAVE TO BECOME MEMBERS
IMMEDIATELY UPON THE CERTIFICATION OF THE UNION AS BARGAINING AGENT." 

ON THIS RECORD, THE BOARD, OBVIOUSLY RELYING ON ITS DECISION IN DIT
MCO, INC., 163 N.L.R.B. 1019 (1967), ENFORCED, 428 F.2D 775 (CA8 1970),
WHICH OVERRULED ITS PRIOR DECISION IN LOBUE BROS., 109 N.L.R.B. 1182
(1954), ORDERED THE EMPLOYER TO BARGAIN WITH THE UNION.  194 N.L.R.B.
298 (1971).  THE SIXTH CIRCUIT DENIED ENFORCEMENT OF THE ORDER, 470
F.2D 305 (1972), AND THE MAJORITY NOW AFFIRMS THAT JUDGMENT. 

BECAUSE IN MY VIEW THE LABOR BOARD HAS "A WIDE DEGREE OF DISCRETION
IN ESTABLISHING THE PROCEDURE AND SAFEGUARDS NECESSARY TO INSURE THE
FAIR AND FREE CHOICE OF BARGAINING REPRESENTATIVES BY EMPLOYEES," NLRB
V. TOWER CO., 329 U.S. 324, 330 (1946), AND BECAUSE I AM UNPERSUADED
THAT THE WAIVER OF INITIATION FEES IN THIS CASE IS SO CLEARLY COERCIVE
WITHIN 7 OF THE NATIONAL LABOR RELATIONS ACT THAT THE BOARD HAS ABUSED
ITS DISCRETION IN FINDING OTHERWISE.  I RESPECTFULLY DISSENT. 

        I 

IT IS WELL ESTABLISHED THAT AN "UNCONDITIONAL" OFFER TO WAIVE
INITIATION FEES, WHERE THE WAIVER OFFER IS LEFT OPEN FOR SOME PERIOD OF
TIME AFTER THE ELECTION, IS NOT COERCIVE AND DOES NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE.  THE SIXTH CIRCUIT ITSELF HAS SO HELD, NLRB V.
GAFNER AUTOMOTIVE & MACHINE, INC., 400 F.2D 10 (1968), AND OTHER COURTS
OF APPEALS HAVE REACHED THE SAME RESULT.  AMALGAMATED CLOTHING WORKERS
V. NLRB, 345 F.2D 264 (CA2 1965); NLRB V. CREST LEATHER MFG. CORP., 414
F.2D 421 (CA5 1969).  THE EXISTENCE OF THE INITIATION FEE IS CREATED BY
THE UNION AND REPRESENTS A SELF-IMPOSED BARRIER TO ENTRY.  /3/  THERE
IS NO EVIDENCE THAT THE FEE WAS NORMALLY IMPOSED FOR THE SOLE PURPOSE
OF REMOVING IT DURING A LABOR CAMPAIGN.  A DIFFERENT CASE MIGHT BE PUT
IF THE UNION PURPORTED TO REMOVE A NONEXISTENT FEE OR ARTIFICIALLY
INFLATED THE FEE SO AS TO MISREPRESENT THE BENEFIT TENDERED BY ITS
REMOVAL.  SEE NLRB V. GORBEA, PEREZ & MORELL, 328 F.2D 679 (CA1 1964). 
SIMILARLY, IT IS ESTABLISHED THAT THE UNION CAN PROMISE EMPLOYEES TO
OBTAIN WAGE INCREASES OR OTHER BENEFITS IF IT IS ELECTED AS A
BARGAINING REPRESENTATIVE.  WILSON ATHLETIC GOODS MFG. CO. V. NLRB, 164
F.2D 637 (CA7 1947). 

IT MUST BE OBVIOUS THAT THESE WAIVERS OF FEES ARE A FORM OF ECONOMIC
INDUCEMENT, AS THE OPINION FOR THE COURT EMPLOYS THAT TERM. 
UNDOUBTEDLY AN OFFER TO REDUCE THE COST OF JOINING THE UNION MAKES THE
UNION A MORE ATTRACTIVE POSSIBILITY AND MAY INFLUENCE AN EMPLOYEE TO
VOTE FOR THE UNION, THOUGH ONE WOULD ASSUME, IN VIEW OF THE OTHER COSTS
AND BENEFITS AT STAKE, THAT THIS CONSIDERATION WILL BE MARGINAL. 
SIMILARLY, IF THE UNION REPRESENTS TO THE EMPLOYEES THAT IT WILL
ATTEMPT TO SECURE HIGHER WAGES, AN EMPLOYEE'S CALCULATIONS OF COSTS AND
BENEFITS WILL BE ALTERED, BUT IN THAT INSTANCE THE UNION IS MERELY
STATING THE OBVIOUS; INDEED, THE PROMISE OF HIGHER WAGES IS THE PRIMARY
RATIONALE OF THE EXISTENCE OF THE UNION.  IN ANY EVENT, THESE FORMS OF
INDUCEMENT ARE VALID.     IN THE INSTANT CASE, AN OFFER WHICH BY ITS
TERMS EXPIRES WITH THE CONCLUSION OF THE ELECTION IS ALSO A FORM OF
ECONOMIC INDUCEMENT.  BUT INSOFAR AS THE OFFER MIGHT AFFECT THE
CALCULATION OF COSTS AND BENEFITS OF JOINING THE UNION, ITS EFFECT IS
THE SAME AS AN OFFER WHICH DOES NOT EXPIRE UNTIL SOME TIME AFTER THE
ELECTION.  THE INABILITY TO DISTINGUISH BETWEEN THESE TWO SITUATIONS,
AT LEAST WHERE SMALL FEES ARE INVOLVED AND WHERE THE SOLE SOURCE OF
CONCERN IS PURE FINANCIAL INDUCEMENT, LED THE BOARD TO CONCLUDE IN DIT
MCO THAT "AN EMPLOYEE WHO DID NOT WANT THE UNION TO REPRESENT HIM WOULD
HARDLY BE LIKELY TO VOTE FOR THE UNION JUST BECAUSE THERE WOULD BE NO
INITIAL COST INVOLVED IN OBTAINING MEMBERSHIP."  163 N.L.R.B., AT
1022.     THE MAJORITY PLACES HEAVY RELIANCE ON THE SUPPOSED ANALOGY
BETWEEN THE WAIVER OF FEES IN THIS CASE AND AN ACTUAL INCREASE IN
BENEFITS MADE BY AN EMPLOYER DURING THE COURSE OF AN ELECTION
CAMPAIGN.  NLRB V. EXCHANGE PARTS CO., 375 U.S. 405 (1964).  THERE THE
EMPLOYER INCREASED VACATION-PAY BENEFITS DURING THE COURSE OF THE
CAMPAIGN.  THE COURT AGREED WITH THE BOARD THAT THIS WAS COERCIVE
ACTIVITY ON THE PART OF THE EMPLOYER, AND ACCORDINGLY REVERSED THE
COURT OF APPEALS, AND ORDERED ENFORCEMENT OF THE BOARD,S ORDER.  IT WAS
STATED THAT "(THE DANGER INHERENT IN WELL-TIMED INCREASES IN BENEFITS
IS THE SUGGESTION OF A FIST INSIDE THE VELVET GLOVE."  ID., AT 409.  A
NUMBER OF IMPORTANT DIFFERENCES EXIST BETWEEN THAT CASE AND THE INSTANT
ONE.  FIRST, THE EMPLOYER ACTUALLY GAVE HIS EMPLOYEES SUBSTANTIAL
INCREASED BENEFITS, WHEREAS HERE THE BENEFIT IS ONLY CONTINGENT AND
SMALL; THE UNION GLOVE IS NOT VERY VELVET.  SECONDLY, IN THE UNION
CONTEXT, THE FIST IS MISSING.  WHEN THE EMPLOYER INCREASED BENEFITS,
THE THREAT WAS MADE "THAT THE SOURCE OF BENEFITS NOW CONFERRED IS ALSO
THE SOURCE FROM WHICH FUTURE BENEFITS MUST FLOW AND WHICH MAY DRY UP IF
IT IS NOT OBLIGED."  IBID.  THE UNION, ON THE OTHER HAND, SINCE IT WAS
NOT THE REPRESENTATIVE OF THE EMPLOYEES, AND WOULD NOT BE IF IT WERE
UNSUCCESSFUL IN THE ELECTION, COULD NOT MAKE THE SAME THREAT BY
OFFERING A BENEFIT WHICH IT WOULD TAKE AWAY IF IT LOST THE ELECTION.  A
UNION CAN ONLY MAKE ITS OWN VICTORY MORE DESIRABLE IN THE MINDS OF THE
EMPLOYEES.  /4/

    II 

IF PURE ECONOMIC INDUCEMENT IN THE FORM OF LOWERING ANTICIPATED
COSTS OF JOINING THE UNION IS NOT TO BE CONSIDERED COERCIVE, ONE MUST
FOCUS ON THE SPECIAL DANGERS, IF ANY, PRESENTED BY THE CONDITIONAL
OFFER, AN ANALYSIS NOT UNDERTAKEN BY THE MAJORITY.  IT HAS BEEN
PROPOSED THAT THE CONDITIONAL OFFER IS SPECIALLY TO BE PROSCRIBED
BECAUSE OF THE INTERJECTION OF A NEW CONSIDERATION INTO THE VOTING
CHOICE OF AN EMPLOYEE:  HOW PROBABLE IT IS THAT THE UNION WILL WIN OR
LOSE THE ELECTION.  NLRB V. GAFNER AUTOMOTIVE & MACHINE, INC., 400
F.2D, AT 13 (PHILLIPS, J., CONCURRING); AMALGAMATED CLOTHING WORKERS V.
NLRB, 345 F.2D, AT 268 (FRIENDLY, J., CONCURRING).  THE ARGUMENT MIGHT
BE THAT AN EMPLOYEE WHO ESTIMATES THAT THE COSTS OF JOINING THE UNION
EXCEED THE BENEFITS, EVEN TAKING INTO ACCOUNT THE REDUCED INITIATION
FEES AVAILABLE BY SIGNING A CARD, WILL STILL SIGN THE CARD, AS A HEDGE,
BECAUSE OF HIS PREDICTION THAT THE UNION WILL WIN THE ELECTION.  /5/  A
STATEMENT OF THE THEORY CARRIES WITH IT ITS OWN DISPROOF.  THE SPECIAL
INDUCEMENT IS TO SIGN THE CARD, NOT TO VOTE FOR THE UNION.  THE
MAJORITY DECISION COLLAPSES THESE TWO CHOICES INTO ONE, AND IS THUS
UNTENABLE.  THE MAJORITY ASSUMES, CONTRARY TO FACT, THAT THE EMPLOYEE
HAS JOINED THE UNION BY SIGNING THE AUTHORIZATION CARD.  THIS IS ONLY
TRUE, HOWEVER, IF THE UNION WINS THE ELECTION AND SIGNS A COLLECTIVE
CONTRACT, AND THE EMPLOYEE CAN STILL SEEK TO PREVENT THAT OUTCOME BY
CASTING HIS VOTE AGAINST THE UNION IN A SECRET BALLOT.  THE TESTIMONY
WAS CLEAR THAT IF THE UNION LOSES THE ELECTION, THE EMPLOYEE WHO SIGNS
THE CARD INCURS NO OBLIGATION TO THE UNION.  THE EXPRESSED PREFERENCE
IN THE NATIONAL LABOR RELATIONS ACT FOR SECRET BALLOT ELECTIONS ASSUMES
THAT VOTERS MAY ACT DIFFERENTLY IN PRIVATE THAN IN PUBLIC, AND
ORDINARILY GUARANTEES TO EMPLOYEES THE ABILITY TO MAKE A SECRET
CHOICE.  IT IS, THEREFORE, IMPORTANT TO HIGHLIGHT THE FACT THAT THE
BOARD IN DIT-MCO ASSUMED, ARGUENDO, "THAT EMPLOYEES WHO SIGN CARDS WHEN
OFFERED A WAIVER OF INITIATION FEES DO SO SOLELY BECAUSE NO COST IS
THUS INVOLVED; THAT THEY IN FACT DO NOT AT THAT POINT REALLY WANT THE
UNION TO BE THEIR BARGAINING REPRESENTATIVE."  163 N.L.R.B., AT 1021. 

THERE IS NO NEED TO CONSIDER HERE, AS DOES THE MAJORITY, WHETHER THE
UNION COULD ACHIEVE RECOGNITION ON THE BASIS OF AUTHORIZATION CARDS
SECURED, IN PART, BY AN OFFER OF FEE WAIVER.  OF COURSE, A CARD
MAJORITY CANNOT SERVE AS A BASIS FOR A 8(A)(5) BARGAINING ORDER UNDER
NLRB V. GISSEL PACKING CO., 395 U.S. 575, 614 - 616 (1969), UNLESS THE
EMPLOYER HAS COMMITTED SERIOUS UNFAIR LABOR PRACTICES.  IT MAY BE THAT
EVEN GIVEN A SERIOUS UNFAIR LABOR PRACTICE ON THE PART OF THE EMPLOYER,
THESE CARDS COULD NOT SERVE AS A BASIS FOR RECOGNITION.  IN THIS CASE,
HOWEVER, THE BOARD'S BARGAINING ORDER WAS BASED ON THE VOTE OF A SECRET
BALLOT ELECTION, AND THE COURT MUST SUPPLY THE CONNECTIVE BETWEEN THE
DECISION TO SIGN A CARD AND THE DECISION TO VOTE FOR THE UNION.  /6/
THIS CONNECTIVE CAN ONLY BE SUPPLIED BY SOME RATHER SPECULATIVE COUNTER
RATIONAL PSYCHOLOGICAL ASSUMPTIONS, I.E., THAT A PERSON WHO SIGNS THE
CARD WILL VOTE FOR THE UNION.  /7/  THE BOARD ASSUMES THAT SUCH IS NOT
THE CASE, AND I AM NOT PREPARED TO UPSET THE BOARD'S JUDGMENT ON THIS
MATTER.  /8/  THE MAJORITY OPINION STRESSES THE FACT THAT THE MARGIN OF
UNION VICTORY WAS ONLY TWO VOTES, AND THUS SUGGESTS THAT THE
"PSYCHOLOGICAL CONNECTIVE" MAY EXPLAIN THE OUTCOME INDICATING THAT IT
"MAY WELL HAVE HAD A DECISIVE IMPACT" (EMPHASIS ADDED).  BUT THERE IS
NO EVIDENCE TO THIS EFFECT, AND DEFINITIONS OF UNFAIR PRACTICES WHICH
BECOME A FUNCTION OF THE OUTCOME OF AN ELECTION ARE SUBJECT TO SEVERE
PROBLEMS OF ADMINISTRATION.  THE BOARD, IN MY JUDGMENT, IS ENTITLED TO
REGULATE ELECTIONS ON STANDARD THEORIES OF COERCION. 

        III 

SINCE THE CASE FOR COERCION ARISING OUT OF THE CONDITIONAL OFFER IS
SPECULATIVE, AND SINCE THE ALTERATION OF THE CALCULUS OF COSTS AND
BENEFITS IS MARGINAL WHERE A SMALL FEE IS INVOLVED, THE ISSUE HERE
RESOLVES INTO THE PROPER ALLOCATION OF INSTITUTIONAL RESPONSIBILITY
BETWEEN AN ADMINISTRATIVE AGENCY AND A REVIEWING COURT.  THE BOARD,
UPON REFLECTION AND STUDY, HAS CONCLUDED THAT THE CONDITIONAL OFFER IS
NOT COERCIVE WITHIN THE MEANING OF 7.  THIS REPRESENTED A BASIC CHANGE
IN POLICY BUT "ONE OF THE SIGNAL ATTRIBUTES OF THE ADMINISTRATIVE
PROCESS IS FLEXIBILITY IN RECONSIDERING AND REFORMING OF POLICY."  CITY
OF CHICAGO V. FPC, 128 U.S. APP. D.C. 107, 115, 385 F.2D 629, 637
(1967).  SUCH REVISIONS ARE ESPECIALLY LIKELY IN THE REGULATION OF
LABOR ELECTIONS, DUE TO THE SUBSTANTIAL PROBLEMS IN DECIDING WHAT IS
LIKELY TO INTERFERE WITH EMPLOYEE FREE CHOICE.  SEE BOK, THE REGULATION
OF CAMPAIGN TACTICS IN REPRESENTATION ELECTIONS UNDER THE NATIONAL
LABOR RELATIONS ACT, 78 HARV. L. REV. 38, 44 - 45 (1964). 

WHILE THE INVOCATION OF AGENCY EXPERTISE IS NOT TALISMANIC, SEE
RADIO CORP. V. UNITED STATES, 341 U.S. 412, 421 (1951) (FRANKFURTER,
J., DUBITANTE), AND WHILE THE DECISION OF THE BOARD MUST BE SUPPORTED
BY SUBSTANTIAL EVIDENCE, UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474
(1951), ONE CANNOT ASK THE AGENCY TO DO THE IMPOSSIBLE.  WHEN CHOOSING
BETWEEN ALTERNATIVE CONTENTIONS OF COERCION, THE AGENCY MUST MAKE
JUDGMENTS BASED ON AVAILABLE KNOWLEDGE.  THIS IS A DIFFICULT TASK AND
ACCOUNTS IN PART FOR THE DECISION OF CONGRESS TO ENTRUST THE BOARD
"WITH A WIDE DEGREE OF DISCRETION IN ESTABLISHING THE PROCEDURE AND
SAFEGUARDS NECESSARY TO INSURE THE FAIR AND FREE CHOICE OF BARGAINING
REPRESENTATIVES BY EMPLOYEES."  NLRB V. TOWER CO., 329 U.S. AT 330. 
RECOGNITION OF THIS DISCRETION HAS BEEN A RECURRENT THEME IN THIS
COURT'S REVIEW OF BOARD DECISIONS.  NLRB V. WATERMAN S. S. CO., 309
U.S. 206, 226 (1940); NLRB V. WYMAN-GORDON CO., 394 U.S. 759, 767
(1969).  IN OTHER CONTEXTS, THE BOARD HAS HAD TO PERFORM THE "FAR MORE
DELICATE TASK . . . OF WEIGHING THE INTERESTS OF EMPLOYEES IN CONCERTED
ACTIVITY AGAINST THE INTEREST OF THE EMPLOYER IN OPERATING HIS BUSINESS
IN A PARTICULAR MANNER.  . . ."  NLRB V. ERIE RESISTOR CORP., 373 U.S.
221, 229 (1963); AMERICAN SHIP BLDG. CO. V. NLRB, 380 U.S. 300, 312
(1965).  THERE IS CERTAINLY A CONFLICTING INTEREST BETWEEN THE UNION'S
RIGHT TO MAKE ITSELF ATTRACTIVE TO EMPLOYEES WITHOUT MISREPRESENTATION
AND THE EMPLOYEE'S UNFETTERED CHOICE TO VOTE FOR OR AGAINST THE UNION. 
I THINK IT IS RATIONAL FOR THE BOARD TO CONCLUDE ON THE BASIS OF THE
FACTS PRESENTED THAT THE DECISION OF THE UNION TO WAIVE SMALL FEES WAS
NOT COERCIVE WITHIN THE MEANING OF 7.  I, THEREFORE, RESPECTFULLY
DISSENT. 

/1/  THE OPINION FOR THE COURT PLACES NO SPECIAL EMPHASIS ON THE
FACT THAT THE WAIVER OF INITIATION FEES MAY HAVE BEEN REFERRED TO AS A
"FINE."  SINCE THE HEARING OFFICER EXPRESSLY FOUND THAT NO SUCH
REPRESENTATION WAS MADE, THE MATTER DESERVES NO FURTHER ATTENTION. 

/2/  MR. BRIDGEMAN, AN EMPLOYEE WHO ATTENDED THE MEETING, TESTIFIED
THAT HIS BROTHER ASKED SMITH IF THERE WAS A FEE FOR JOINING THE UNION. 
MR. SMITH'S ANSWER WAS "(THERE WOULD BE A SMALL FEE."  APP. 28. 

/3/  THE ROLE OF THE INITIATION FEE HAS BEEN DESCRIBED BY ONE WRITER
AS FOLLOWS:  "INITIATION FEES SERVE SEVERAL SORTS OF UNION PURPOSES. 
FIRST, OF COURSE, THEY ARE A SOURCE OF REVENUE, WHICH IS OCCASIONALLY
EXPENDABLE HOWEVER DURING AN ORGANIZATION DRIVE WHEN THE UNION IS
ANXIOUS TO INDUCE WORKERS TO JOIN THE UNION.  SECOND, THE INITIATION
FEE REPRESENTS FOR THE OLDER MEMBERS A KIND OF EQUITY PAYMENT BY THE
NEW MEMBER TO COMPENSATE, AT LEAST PARTIALLY, FOR THE EFFORTS THAT
OTHERS HAVE PUT INTO BUILDING THE UNION.  . . ."  J. BARBASH, THE
PRACTICE OF UNIONISM 79 (1956). 

/4/  THE COURT CANNOT IGNORE THE FACT, AS WELL, THAT 1 OF THE
NATIONAL LABOR RELATIONS ACT DECLARED THE CONGRESSIONAL POLICY OF
"ENCOURAGING THE PRACTICE AND PROCEDURE OF COLLECTIVE BARGAINING."  29
U.S.C. 151.  THE EXISTENCE OF UNIONS IS AN INESCAPABLE COROLLARY OF
THIS PREFERENCE.  TO THE EXTENT THAT THIS COURT PROHIBITS THE UNION
FROM PROMISING A FAIRER DEAL FOR UNIONIZED EMPLOYEES BY DESCRIBING THE
BENEFITS TO BE OBTAINED BY UNIONIZATION, THIS POLICY IS SERIOUSLY
ERODED.  THIS COURT HAS OFTEN UNDERSCORED THIS PREFERENCE IN THE ACT. 
SEE, E.G., PHELPS DODGE CORP. V. NLRB, 313 U.S. 177, 182 (1941); NLRB
V. ALLIS-CHALMERS MFG. CO., 388 U.S. 175, 180 (1967).  THIS PREFERENCE
IS ONLY ONE OF OPPORTUNITY AND THE FREE CHOICE OF THE EMPLOYEE MUST BE
PROTECTED, BUT RESTRICTIONS ON THE COMMUNICATIONS OF THE UNION AS TO
POTENTIAL BENEFITS MAY UNDULY PREVENT THE INTELLIGENT EXERCISE OF SUCH
CHOICE.  THE EMPLOYER MAY GARNER LOYALTY THROUGH HIS ACTIONS AND RECORD
OF PAST PERFORMANCE FOR HIS OWN EMPLOYEES; THE UNION CAN ONLY SELL
EMPLOYEES THE FUTURE. 

/5/  THIS POSSIBILITY OF HEDGING IS TO SOME EXTENT BORNE OUT BY THE
RECORD.  ALTHOUGH THE COURT CANNOT KNOW WHAT THE CORRELATION WAS
BETWEEN SIGNED CARDS AND VOTES FOR THE UNION, WE DO KNOW THAT NOT
EVERYONE WHO SIGNED CARDS VOTED FOR THE UNION.  TWENTY-EIGHT PERSONS
PLUS SIGNED CARDS (APP. 75) AND ONLY 22 VOTED FOR THE UNION.  MOREOVER,
THERE IS TESTIMONY THAT SOME EMPLOYEES DISCUSSED THE HEDGE.  "OF COURSE
SOME OF US FELLOWS DID SAY TO OTHER FELLOWS THAT WERE REALLY AGAINST IT
(THE UNION) AND HAVE ALWAYS BEEN AGAINST IT YOU BETTER SIGN YOUR TICKET
AND TURN IT IN BECAUSE IF YOU DIDN'T IF IT DOES GET VOTED IN, IF THE
MAJORITY OF THE MEN VOTE THE UNION IN, AT LEAST YOU HAVE TO PAY YOUR
DUES WHICH IS VERY NATURAL BUT YOU WOULDN'T HAVE TO PAY NO INITIATION
FEE."  APP. 28 - 29.  (EMPHASIS ADDED.) 

/6/  AS TO THE POSSIBLE EFFECT OF THE FEE WAIVER OFFER ON SECURING
THE 30% SHOWING NECESSARY FOR HOLDING AN ELECTION, WHETHER OR NOT THERE
IS A VALID SHOWING IS A MATTER FOR ADMINISTRATIVE DETERMINATION NOT
SUBJECT TO LITIGATION BY THE PARTIES.  GOODYEAR TIRE & RUBBER CO., 138
N.L.R.B. 453 (1962).  COURTS OF APPEALS HAVE UNIFORMLY SO HELD.  SEE
NLRB V. J.I. CASE CO., 201 F.2D 597 (CA9 1953); NLRB V. WHITE CONST. &
ENG. CO., 204 F.2D 950, 953 (CA5 1953); KEARNEY & TRECKER CORP. V.
NLRB, 209 F.2D 782, 787 - 788 (CA7 1953); NLRB V. NATIONAL TRUCK RENTAL
CO., 99 U.S. APP. D.C. 259, 261 - 262, 239 F.2D 422, 424 - 425 (1956)
(BURGER, J.), CERT. DENIED, 352 U.S. 1016 (1957); NLRB V. LOUISVILLE
CHAIR CO., 385 F.2D 922, 926 - 927 (CA6 1967); INTERTYPE CO. V. NLRB,
401 F.2D 41, 43 (CA4 1968), CERT. DENIED, 393 U.S. 1049 (1969). 

/7/  IT IS CERTAINLY ARGUABLE THAT SUCH A CONNECTION CAN BE MADE
WHEN THE UNION PAYS A PERSON CASH TO VOTE FOR OR ASSIST THE UNION.  THE
BENEFIT OF THE UNION HAS BEEN TENDERED AND THE EMPLOYEE MAY WELL FEEL
HE HAS INCURRED A MORAL OBLIGATION TO VOTE FOR THE UNION.  SEE, E.G.,
WAGNER ELECTRIC CORP., 167 N.L.R.B. 532, 533 (1967) (GRANT OF LIFE
INSURANCE POLICY TO THOSE WHO SIGNED WITH UNION BEFORE REPRESENTATION
ELECTION "SUBJECTS THE DONEES TO A CONSTRAINT TO VOTE FOR THE DONOR
UNION").  SEE ALSO COLLINS & AIKMAN CORP. V. NLRB, 383 F.2D 722 (CA4
1967) (PAYMENT OF $7 TO EMPLOYEE TO BE OBSERVER AT ELECTION); NLRB V.
COMMERCIAL LETTER, INC., 455 F.2D 109 (CA8 1972) (EXCESSIVE PAYMENTS TO
UNION MEMBERS TO ATTEND MEETINGS).  IN WAGNER, SUPRA, THE BOARD
DISTINGUISHED THE INITIATION FEE DECISION IN DIT-MCO, INC., 163
N.L.R.B. 1019 (1967), ON THE GROUND THAT THERE WAS NO IMMEDIATE
IMPROVEMENT IN AN EMPLOYEE'S ECONOMIC SITUATION WHEN FEES ARE WAIVED. 

/8/  THE MAJORITY IN ITS CONCLUSION SEEMS TO ARTICULATE STILL
ANOTHER THEORY OF COERCION:  "THE FAILURE TO SIGN A RECOGNITION SLIP
MAY WELL SEEM OMINOUS TO NONUNIONISTS WHO FEAR THAT IF THEY DO NOT SIGN
THEY WILL FACE A WRATHFUL UNION REGIME, SHOULD THE UNION WIN."  THIS
THEORY, OF COURSE, ASSUMES A CARD SIGNER WILL VOTE FOR THE UNION. 
MOREOVER, THIS PROBLEM IS FUNDAMENTAL IN LABOR ELECTIONS, AT THE
OUTSET, WHEN CARDS ARE COLLECTED FOR THE PURPOSE OF HOLDING AN ELECTION
PURSUANT TO THE NECESSARY SHOWING OF SUPPORT, AND, AT THE CONCLUSION,
IF THE UNION WINS, WHEN THOSE WHO OPPOSE THE UNION MUST STILL DECIDE TO
JOIN THE UNION OR FACE THE UNION'S WRATH.  ONE COULD EASILY ARGUE THAT
AT LEAST AN EQUAL DETERRENT TO SIGNING THE CARD IS THE WRATHFUL
EMPLOYER IF THE UNION LOSES THE ELECTION.  NORTON J. COME ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
BORK, SAMUEL HUNTINGTON, PETER G. NASH, JOHN S. IRVING, PATRICK HARDIN,
AND LINDA SHER.     ROBERT J. SOLNER ARGUED THE CAUSE AND FILED A BRIEF
FOR RESPONDENT. 
..END :














ZAHN V. INTERNATIONAL PAPER CO., 414 U.S. 291 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 72 - 888.  ARGUED OCTOBER 16, 1973--DECIDED DECEMBER
17,

1973; 469 F.2D 1033, AFFIRMED. 


    MULTIPLE PLAINTIFFS WITH SEPARATE AND DISTINCT CLAIMS MUST EACH

  SATISFY THE JURISDICTIONAL AMOUNT FOR SUITS IN FEDERAL COURTS,

  AND IN THIS DIVERSITY CLASS ACTION UNDER FED. RULE CIV. PROC.

  23(B)(3) BY OWNERS OF LAKESHORE PROPERTY CHARGING RESPONDENT WITH

  POLLUTING THE LAKE, WHERE ONLY THE NAMED PLAINTIFFS BUT NOT THE

  UNNAMED PLAINTIFFS COULD SHOW DAMAGES IN THE JURISDICTIONAL

  AMOUNT, A CLASS ACTION IS NOT MAINTAINABLE.  EACH PLAINTIFF IN A

  RULE 23(B)(3) CLASS ACTION MUST SATISFY THE JURISDICTIONAL AMOUNT

  AND ANY PLAINTIFF WHO DOES NOT MUST BE DISMISSED FROM THE

  CASE.  SNYDER V. HARRIS, 394 U.S. 332, FOLLOWED.  PP. 292 - 302. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL,
JJ., JOINED, POST, P. 302. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, ASSERTING THAT THEY WERE OWNERS OF PROPERTY FRONTING ON
LAKE CHAMPLAIN IN ORWELL, VERMONT, BROUGHT THIS ACTION IN THE DISTRICT
COURT ON BEHALF OF A CLASS CONSISTING OF THEMSELVES AND 200 LAKEFRONT
PROPERTY OWNERS AND LESSEES.  THEY SOUGHT DAMAGES FROM INTERNATIONAL
PAPER CO., A NEW YORK CORPORATION, FOR ALLEGEDLY HAVING PERMITTED
DISCHARGES FROM ITS PULP AND PAPER-MAKING PLANT, LOCATED IN NEW YORK,
TO FLOW INTO TICONDEROGA CREEK AND TO BE CARRIED BY THAT STREAM INTO
LAKE CHAMPLAIN, THEREBY POLLUTING THE WATERS OF THE LAKE AND DAMAGING
THE VALUE AND UTILITY OF THE SURROUNDING PROPERTIES.  THE SUIT WAS
BROUGHT AS A DIVERSITY ACTION, JURISDICTION ASSERTEDLY RESTING ON 28
U.S.C 1332(A)(1).  THE CLAIM OF EACH OF THE NAMED PLAINTIFFS WAS FOUND
TO SATISFY THE $10,000 JURISDICTIONAL AMOUNT, BUT THE DISTRICT COURT
WAS CONVINCED "TO A LEGAL CERTAINTY" THAT NOT EVERY INDIVIDUAL OWNER IN
THE CLASS HAD SUFFERED POLLUTION DAMAGES IN EXCESS OF $10,000.  READING
SNYDER V. HARRIS, 394 U.S. 332 (1969), AS PRECLUDING MAINTENANCE OF THE
ACTION BY ANY MEMBER OF THE CLASS WHOSE SEPARATE AND DISTINCT CLAIM DID
NOT INDIVIDUALLY SATISFY THE JURISDICTIONAL AMOUNT AND CONCLUDING THAT
IT WOULD NOT BE FEASIBLE TO DEFINE A CLASS OF PROPERTY OWNERS EACH OF
WHOM HAD MORE THAN A $10,000 CLAIM, THE DISTRICT COURT THEN REFUSED TO
PERMIT THE SUIT TO PROCEED AS A CLASS ACTION.  53 F.R.D. 430 (VT.
1971).  A DIVIDED COURT OF APPEALS AFFIRMED, 469 F.2D 1033 (CA2 1972),
PRINCIPALLY ON THE AUTHORITY OF SNYDER V. HARRIS, SUPRA.  WE GRANTED
THE PETITION FOR WRIT OF CERTIORARI, 410 U.S. 925 (1973). 

THE COURT OF APPEALS CORRECTLY HELD THAT THIS CASE IS GOVERNED BY
THE RATIONALE OF THIS COURT'S PRIOR CASES CONSTRUING THE STATUTES
DEFINING THE JURISDICTION OF THE DISTRICT COURT.  WE THEREFORE AFFIRM
ITS JUDGMENT. 

FROM THE OUTSET CONGRESS HAS PROVIDED THAT SUITS BETWEEN CITIZENS OF
DIFFERENT STATES ARE MAINTAINABLE IN THE DISTRICT COURTS ONLY IF THE
"MATTER IN CONTROVERSY" EXCEEDS THE STATUTORY MINIMUM, NOW SET AT
$10,000.  28 U.S.C. 1332(A).  /1/  THE SAME JURISDICTIONAL-AMOUNT
REQUIREMENT HAS APPLIED WHEN THE GENERAL FEDERAL-QUESTION JURISDICTION
OF THE DISTRICT COURTS, 28 U.S.C. 1331(A), IS SOUGHT TO BE INVOKED. 
/2/  A CLASSIC STATEMENT OF THE DICHOTOMY THAT DEVELOPED IN CONSTRUING
AND APPLYING THESE SECTIONS IS FOUND IN TROY BANK V. G.A. WHITEHEAD &
CO., 222 U.S. 39, 40 - 41 (1911): 

     "WHEN TWO OR MORE PLAINTIFFS, HAVING SEPARATE AND DISTINCT

  DEMANDS, UNITE FOR CONVENIENCE AND ECONOMY IN A SINGLE SUIT, IT

  IS ESSENTIAL THAT THE DEMAND OF EACH BE OF THE REQUISITE

  JURISDICTIONAL AMOUNT; BUT WHEN SEVERAL PLAINTIFFS UNITE TO

  ENFORCE A SINGLE TITLE OR RIGHT, IN WHICH THEY HAVE A COMMON AND

  UNDIVIDED INTEREST, IT IS ENOUGH IF THEIR INTERESTS COLLECTIVELY

  EQUAL THE JURISDICTIONAL AMOUNT." 

THIS DISTINCTION AND RULE THAT MULTIPLE PLAINTIFFS WITH SEPARATE AND
DISTINCT CLAIMS MUST EACH SATISFY THE JURISDICTIONAL-AMOUNT
REQUIREMENTS FOR SUIT IN THE FEDERAL COURTS WERE FIRMLY ROOTED IN PRIOR
CASES DATING FROM 1832, /3/  AND HAVE CONTINUED TO BE THE ACCEPTED
CONSTRUCTION OF THE CONTROLLING STATUTES, NOW 1331 AND 1332.  /4/  THE
RULE HAS BEEN APPLIED TO FORBID AGGREGATION OF CLAIMS WHERE NONE OF THE
CLAIMANTS SATISFIED THE JURISDICTIONAL AMOUNT, AS WAS THE CASE IN SCOTT
V. FRAZIER, 253 U.S. 243, 244 (1920), FOR EXAMPLE, WHERE THE COURT
STATED THE RULE TO BE THAT "THE AMOUNT IN CONTROVERSY MUST EQUAL THE
JURISDICTIONAL SUM AS TO EACH COMPLAINANT."  ID., AT 244.  IT ALSO
REQUIRES DISMISSAL OF THOSE LITIGANTS WHOSE CLAIMS DO NOT SATISFY THE
JURISDICTIONAL AMOUNT, EVEN THOUGH OTHER LITIGANTS ASSERT CLAIMS
SUFFICIENT TO INVOKE THE JURISDICTION OF THE FEDERAL COURT.  CLARK V.
PAUL GRAY, INC., 306 U.S. 583 (1939); STEWART V. DUNHAM, 115 U.S. 61,
64 - 65 (1885); BERNARDS TOWNSHIP V. STEBBINS, 109 .S.  U.341, 355
(1883). 

IN CLARK V. PAUL GRAY, INC., DECIDED AFTER THE EFFECTIVE DATE OF THE
FEDERAL RULES OF CIVIL PROCEDURE IN 1938, THE COURT APPLIED THE
FAMILIAR RULE THAT "WHEN SEVERAL PLAINTIFFS ASSERT SEPARATE AND
DISTINCT DEMANDS IN A SINGLE SUIT, THE AMOUNT INVOLVED IN EACH SEPARATE
CONTROVERSY MUST BE OF THE REQUISITE AMOUNT . . . , AND . . . THOSE
AMOUNTS CANNOT BE ADDED TOGETHER TO SATISFY JURISDICTIONAL
REQUIREMENTS."  306 U.S., AT 589.  UPON ASCERTAINING ON ITS OWN MOTION
THAT ONLY ONE OF THE PLAINTIFFS IN THE DISTRICT COURT HAD PRESENTED A
CLAIM SATISFYING THE JURISDICTIONAL AMOUNT, THE COURT REACHED THE
MERITS OF THAT CLAIM BUT DIRECTED THE DISTRICT COURT TO DISMISS THE
CLAIMS OF ALL OTHER PLAINTIFFS FOR WANT OF JURISDICTION. 

THE SAME RULES WERE APPLIED TO CLASS ACTIONS CONTEMPLATED BY FED.
RULE CIV. PROC. 23.  THE SPURIOUS CLASS ACTION AUTHORIZED BY RULE
23(A)(3), AS IT STOOD PRIOR TO AMENDMENT IN 1966, /5/  WAS VIEWED BY
JUDGE FRANK, WRITING FOR HIMSELF AND JUDGES LEARNED AND AUGUSTUS HAND,
AS "IN EFFECT, BUT A CONGERIES OF SEPARATE SUITS SO THAT EACH CLAIMANT
MUST, AS TO HIS OWN CLAIM, MEET THE JURISDICTIONAL REQUIREMENTS." 
STEELE V. GUARANTY TRUST CO. OF N.Y., 164 F.2D 387, 388 (CA2 1947). 
/6/  THE DIRECT PRECEDENT FOR STEELE WAS A 1941 DECISION IN THE SAME
CIRCUIT EXPRESSED IN AN OPINION WRITTEN BY JUDGE CHARLES CLARK, WHO, AS
A MEMBER OF AND REPORTER FOR THE ADVISORY COMMITTEE, WAS A PRINCIPAL
ARCHITECT OF THE FEDERAL RULES OF CIVIL PROCEDURE.  THAT CASE, HACKNER
V. GUARANTY TRUST CO. OF N.Y., 117 F.2D 95 (CA2 1941), INVOLVED A CLASS
ACTION BROUGHT ON BEHALF OF PLAINTIFFS WITH SEPARATE AND DISTINCT
CLAIMS.  JUDGE CLARK INVOKED A LONG LINE OF AUTHORITY IN THIS COURT,
AND IN OTHER COURTS, TO HOLD THAT AMONG PARTIES RELATED ONLY BY A
COMMON QUESTION OF LAW AND FACT, "AGGREGATION IS IMPROPER" AND THAT
JURISDICTION CANNOT BE SUPPLIED FOR THOSE WITHOUT CLAIMS IN THE
REQUISITE AMOUNT "BY ADDING A PLAINTIFF WHO CAN SHOW JURISDICTION." 
ID., AT 98.  (CITATIONS OMITTED.)  THIS WAS THE ACCEPTED VIEW IN THE
FEDERAL COURTS WITH RESPECT TO CLASS ACTIONS.  /7/  IN CONSEQUENCE,
DISTRICT COURTS WERE TO ENTERTAIN THE CLAIMS OF ONLY THOSE CLASS ACTION
PLAINTIFFS WHOSE INDIVIDUAL CASES SATISFIED THE JURISDICTIONAL AMOUNT
REQUIREMENT. 

THE MEANING OF THE "MATTER IN CONTROVERSY" LANGUAGE OF 1332 AS IT
APPLIED TO CLASS ACTIONS UNDER RULE 23 REACHED THIS COURT IN SNYDER V.
HARRIS, SUPRA, THE OCCASION BEING A DIVISION OF OPINION IN THE COURTS
OF APPEALS AS TO WHETHER THE 1966 AMENDMENTS TO RULE 23 HAD CHANGED THE
JURISDICTIONAL-AMOUNT REQUIREMENT OF 1332 AS APPLIED TO CLASS ACTIONS
INVOLVING SEPARATE AND DISTINCT CLAIMS.  /8/  NONE OF THE NAMED
PLAINTIFFS AND NONE OF THE UNNAMED MEMBERS OF THE CLASS BEFORE THE
COURT ALLEGED CLAIMS IN EXCESS OF THE REQUISITE AMOUNT.  IT WAS
NEVERTHELESS URGED THAT IN CLASS ACTION SITUATIONS, PARTICULARLY IN
LIGHT OF THE 1966 AMENDMENTS TO THE RULE, AGGREGATION OF SEPARATE AND
DISTINCT CLAIMS SHOULD BE PERMITTED.  THE COURT WAS OF A CONTRARY VIEW,
HOLDING THAT CLASS ACTIONS INVOLVING PLAINTIFFS WITH SEPARATE AND
DISTINCT CLAIMS WERE SUBJECT TO THE USUAL RULE THAT A FEDERAL DISTRICT
COURT CAN ASSUME JURISDICTION OVER ONLY THOSE PLAINTIFFS PRESENTING
CLAIMS EXCEEDING THE $10,000 MINIMUM SPECIFIED IN 1332.  AGGREGATION OF
CLAIMS WAS IMPERMISSIBLE, AND THE FEDERAL COURT WAS WITHOUT
JURISDICTION WHERE NONE OF THE PLAINTIFFS PRESENTED A CLAIM OF THE
REQUISITE SIZE.  THE COURT UNMISTAKABLY REJECTED THE NOTION THAT THE
1966 AMENDMENTS TO RULE 23 WERE INTENDED TO EFFECT, OR EFFECTED, ANY
CHANGE IN THE MEANING AND APPLICATION OF THE JURISDICTIONAL-AMOUNT
REQUIREMENT INSOFAR AS CLASS ACTIONS ARE CONSTRUED. 

     "THE DOCTRINE THAT SEPARATE AND DISTINCT CLAIMS COULD NOT BE

  AGGREGATED WAS NEVER, AND IS NOT NOW, BASED UPON THE CATEGORIES

  OF OLD RULE 23 OR OF ANY RULE OF PROCEDURE.  THAT DOCTRINE IS

  BASED RATHER UPON THIS COURT'S INTERPRETATION OF THE STATUTORY

PHRASE 'MATTER IN CONTROVERSY.'  THE INTERPRETATION OF THIS

 PHRASE AS PRECLUDING AGGREGATION SUBSTANTIALLY PREDATES THE 1938

  FEDERAL RULES OF CIVIL PROCEDURE.  . . . NOTHING IN THE AMENDED

  RULE 23 CHANGES THIS DOCTRINE . . . THE FACT THAT JUDGMENTS UNDER

  CLASS ACTIONS FORMERLY CLASSIFIED AS SPURIOUS MAY NOW HAVE THE

  SAME EFFECT AS CLAIMS BROUGHT UNDER THE JOINDER PROVISIONS IS

  CERTAINLY NO REASON TO TREAT THEM DIFFERENTLY FROM JOINED ACTIONS

  FOR PURPOSES OF AGGREGATION."  394 U.S., AT 336 - 337. 

THE COURT ALSO REFUSED TO RECONSIDER ITS PRIOR CONSTRUCTIONS OF THE
"MATTER IN CONTROVERSY" PHRASE, CONCLUDING THAT IT SHOULD NOT DO SO
WHERE CONGRESS, WITH COMPLETE UNDERSTANDING OF HOW THE COURTS HAD
CONSTRUED THE STATUTE, HAD NOT CHANGED THE GOVERNING LANGUAGE AND DOWN
THROUGH THE YEARS HAD CONTINUED TO SPECIFY AND HAD PROGRESSIVELY
INCREASED THE JURISDICTIONAL AMOUNT NECESSARY FOR INSTITUTING SUIT IN
THE FEDERAL COURTS. 

NONE OF THE PLAINTIFFS IN SNYDER V. HARRIS ALLEGED A CLAIM EXCEEDING
$10,000, BUT THERE IS NO DOUBT THAT THE RATIONALE OF THAT CASE CONTROLS
THIS ONE.  AS PREVIOUSLY INDICATED, SNYDER INVOKED THE WELL-ESTABLISHED
RULE THAT EACH OF SEVERAL PLAINTIFFS ASSERTING SEPARATE AND DISTINCT
CLAIMS MUST SATISFY THE JURISTICTIONAL -AMOUNT REQUIREMENT IF HIS CLAIM
WAS TO SURVIVE A MOTION TO DISMISS.  THIS RULE PLAINLY MANDATES NOT
ONLY THAT THERE MAY BE NO AGGREGATION AND THAT THE ENTIRE CASE MUST BE
DISMISSED WHERE NONE OF THE PLAINTIFFS CLAIMS MORE THAN $10,000 BUT
ALSO REQUIRES THAT ANY PLAINTIFF WITHOUT THE JURISDICTIONAL AMOUNT MUST
BE DISMISSED FROM THE CASE, EVEN THOUGH OTHERS ALLEGE JURISDICTIONALLY
SUFFICIENT CLAIMS. 

THIS FOLLOWS INESCAPABLY FROM THE COURT'S HEAVY RELIANCE ON CLARK V.
PAUL GRAY, INC., SUPRA, WHERE ONLY ONE OF SEVERAL PLAINTIFFS HAD A
SUFFICIENTLY LARGE CLAIM AND ALL OTHER PLAINTIFFS WERE DISMISSED FROM
THE SUIT.  /9/  MOREOVER, THE COURT CITED WITH APPROVAL THE DECISION IN
ALVAREZ V. PAN AMERICAN LIFE INSURANCE CO., 375 F.2D 992 (CA5), CERT.
DENIED, 389 U.S. 827 (1967), WHICH WAS DECIDED AFTER THE 1966
AMENDMENTS TO RULE 23 AND WHICH INVOLVED A CLASS.  ACTION WITH ONLY ONE
MEMBER OF THE CLASS HAVING A CLAIM SUFFICIENT TO SATISFY 1332.  ONLY
THAT CLAIM WAS HELD WITHIN THE JURISDICTION OF THE DISTRICT COURT. 

WE CONCLUDE, AS WE MUST, THAT THE COURT OF APPEALS IN THE CASE
BEFORE US ACCURATELY READ AND APPLIED SNYDER V. HARRIS:  /10/  EACH
PLAINTIFF IN A RULE 23(B)(3) CLASS ACTION MUST SATISFY THE
JURISDICTIONAL AMOUNT, AND ANY PLAINTIFF WHO DOES NOT MUST BE DISMISSED
FROM THE CASE--"ONE PLAINTIFF MAY NOT RIDE IN ON ANOTHER'S COATTAILS." 
469 F.2D, AT 1035. 

NEITHER ARE WE INCLINED TO OVERRULE SNYDER V. HARRIS NOR TO CHANGE
THE COURT'S LONGSTANDING CONSTRUCTION OF THE "MATTER IN CONTROVERSY"
REQUIREMENT OF 1332.  THE COURT DECLINED A LIKE INVITATION IN SNYDER V.
HARRIS AFTER SURVEYING ALL RELEVANT CONSIDERATIONS AND CONCLUDING THAT
TO DO SO WOULD UNDERMINE THE PURPOSE AND INTENT OF CONGRESS IN
PROVIDING THAT PLAINTIFFS IN DIVERSITY C ES MUST PRESENT CLAIMS IN
EXCESS OF THE SPECIFIED JURISDICTIONAL AMOUNT.  AT THIS TIME, WE HAVE
NO GOOD REASON TO DISAGREE WITH SNYDER V. HARRIS OR WITH THE HISTORIC
CONSTRUCTION OF THE JURISDICTIONAL STATUTES, LEFT UNDISTURBED BY
CONGRESS OVER THESE MANY YEARS. 

IT ALSO SEEMS TO US THAT THE APPLICATION OF THE JURISDICTIONAL
AMOUNT REQUIREMENT TO CLASS ACTIONS WAS SO PLAINLY ETCHED IN THE
FEDERAL COURTS PRIOR TO 1966 THAT HAD THERE BEEN ANY THOUGHT OF
DEPARTING FROM THESE DECISIONS AND, IN SO DOING, OF CALLING INTO
QUESTION THE ACCEPTED APPROACH TO CASES INVOLVING ORDINARY JOINDER OF
PLAINTIFFS WITH SEPARATE AND DISTINCT CLAIMS, SOME EXPRESS STATEMENT OF
THAT INTENTION WOULD SURELY HAVE APPEARED, EITHER IN THE AMENDMENTS
THEMSELVES OR IN THE OFFICIAL COMMENTARIES.  BUT WE FIND NOT A TRACE TO
THIS EFFECT.  AS THE COURT THOUGHT IN SNYDER V. HARRIS, THE MATTER MUST
REST THERE, ABSENT FURTHER CONGRESSIONAL ACTION.  /11/

AFFIRMED. 

/1/  THE SECTION PROVIDES IN PERTINENT PART THAT: 

     "(A) THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF

  ALL CIVIL ACTIONS WHERE THE MATTER IN CONTROVERSY EXCEEDS THE SUM

  OR VALUE OF $10,000, EXCLUSIVE OF INTEREST AND COSTS, AND IS

  BETWEEN-- 

     "(1) CITIZENS OF DIFFERENT STATES . . . ." 

AMOUNT IN DIVERSITY SUITS AT $500.  1 STAT. 78.  IN 1801, CONGRESS
LOWERED THE REQUIREMENT TO $400 IN THE MIDNIGHT JUDGES ACT, 2 STAT. 89,
92, BUT IT WAS QUICKLY RESTORED TO $500 THE FOLLOWING YEAR.  2 STAT.
132.  THE JURISDICTIONAL-AMOUNT REQUIREMENT REMAINED FIXED AT THIS
LEVEL UNTIL THE ACT OF MAR. 3, 1887, 24 AT. 552, WHEN IT WAS RAISED TO
$2,000.  THE FIGURE WAS SUBSEQUENTLY INCREASED BY $1,000 BY THE ACT OF
MAR. 3, 1911, 24, 36 STAT. 1091.  SEE S. REP. NO. 388, 61ST CONG., 2D
SESS., PT. 2, PP. 30 - 32 (1910); H.R. REP. NO. 818, 61ST CONG., 2D
SESS. (1910); CONFERENCE REPORT, S. DOC. NO. 848, 61ST CONG., 3D SESS.
(1911); 45 CONG. REC. 3596 - 3599 (1910); 46 CONG. REC. 4002, 4003,
4004 (1911). 

THE CURRENT $10,000 JURISDICTIONAL AMOUNT, CODIFIED IN 28 U.S.C.
1332(A), WAS ENACTED BY THE ACT OF JULY 25, 1958, 72 STAT. 415.  THE
LEGISLATIVE HISTORY DISCLOSES THAT THE CHANGE WAS MADE "ON THE PREMISE
THAT THE AMOUNT SHOULD BE FIXED AT A SUM OF MONEY THAT WILL MAKE
JURISDICTION AVAILABLE IN ALL SUBSTANTIAL CONTROVERSIES WHERE OTHER
ELEMENTS OF FEDERAL JURISDICTION ARE PRESENT.  THE JURISDICTIONAL
AMOUNT SHOULD NOT BE SO HIGH AS TO CONVERT THE FEDERAL COURTS INTO
COURTS OF BIG BUSINESS NOR SO LOW AS TO FRITTER AWAY THEIR TIME IN THE
TRIAL OF PETTY CONTROVERSIES."  S. REP. NO. 1830, 85TH CONG., 2D SESS.,
3 - 4 (1958); SEE ALSO ID., AT 21; H.R. REP. NO. 1706, 85TH CONG., 2D
SESS., 3 (1958).     /2/  SECTION 1331(A) PROVIDES: 

     "(A) THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF

  ALL CIVIL ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE

  SUM OR VALUE OF $10,000, EXCLUSIVE OF INTEREST AND COSTS, AND

ARISES UNDER THE CONSTITUTION, LAWS OR

TREATIES OF THE UNITED STATES." 

/3/  THE FOLLOWING ARE REPRESENTATIVE OF INNUMERABLE CASES
CONFIRMING THIS PRINCIPLE; WOODSIDE V. BECKHAM, 216 U.S. 117 (1910);
WAITE V. SANTA CRUZ, 184 U.S. 302, 328 - 329 (1902); WHELESS V. ST.
LOUIS, 180 U.S. 379, 382 (1901); BERNARDS TOWNSHIP V. STEBBINS, 109
U.S. 341, 355 (1883).  CF. CLAY V. FIELD, 138 U.S. 464 (1891); RUSSELL
V. STANSELL, 105 U.S. 303 (1882); SEAVER V. BIGELOWS, 5 WALL.  208
(1867); STRATTON V. JARVIS, 8 PET. 4 (1834); V. OLIVER ALEXANDER, 6
PET. 143 (1832)/ 

SNYDER V. HARRIS, 394 U.S. 332 (1969), NOTED THAT THE JUDICIAL
INTERPRETATION OF "MATTER IN CONTROVERSY" TO BAR AGGREGATION OF
SEPARATE AND DISTINCT CLAIMS DATED BACK TO AT LEAST OLIVER V.
ALEXANDER, WHICH IS REPRESENTATIVE OF THE UNBROKEN LINE OF DECISIONS OF
THIS COURT INTERPRETING OUR APPELLATE JURISDICTION WHEN THAT
JURISDICTION WAS CONFINED TO REVIEW OF LOWER COURT DECISIONS IN WHICH
THE "MATTER IN DISPUTE" EXCEEDED A DESIGNATED MONETARY AMOUNT. 
CONSISTENTLY, PLAINTIFFS WITH SEPARATE AND DISTINCT CLAIMS COULD NOT
AGGREGATE THEIR RESPECTIVE "MATTERS IN DISPUTE" TO BRING AN APPEAL TO
THIS COURT.  SEE, E.G., STEWART V. DUNHAM, 115 U.S. 61, 64 - 65 (1885)
(AND CASES CITED THEREIN).  THE ORIGINAL ALEXANDER CONSTRUCTION OF OUR
APPELLATE JURISDICTION WAS APPLIED TO THE JURISDICTIONAL-AMOUNT
REQUIREMENT FOR FEDERAL TRIAL COURTS IN WALTER V. NORTHEASTERN R. CO.,
147 U.S. 370, 373 (1893): 

     "IF THE PLAINTIFF ENTITLED TO JOIN (ALL HIS ACTIONS) IN A

  SINGLE SUIT IN A FEDERAL COURT, AND SUSTAIN THE JURISDICTION BY

  REASON OF THE FACT THAT THE TOTAL AMOUNT INVOLVED EXCEEDS

  $2,000?  WE THINK NOT.  IT IS WELL SETTLED IN THIS COURT THAT

  WHEN TWO OR MORE PLAINTIFFS, HAVING SEVERAL INTERESTS, UNITE FOR

  THE CONVENIENCE OF LITIGATION IN A SINGLE SUIT, IT CAN ONLY BE

SUSTAINED IN THE COURT OF ORIGINAL JURISDICTION, OR ON APPEAL IN

  THIS COURT, AS TO THOSE WHOSE CLAIMS EXCEED THE JURISDICTIONAL

  AMOUNT; AND THAT WHEN TWO OR MORE DEFENDANTS ARE SUED BY THE SAME

  PLAINTIFF IN ONE SUIT THE TEST OF JURISDICTION IS THE JOINT OR

  SEVERAL CHARACTER OF THE LIABILITY TO THE PLAINTIFF." 

/4/  ROGERS V. HENNEPIN COUNTY, 329 U.S. 621 (1916); TITLE GUARANTY
CO. V. ALLEN, 240 U.S. 136.  (1916); PINEL V. PINEL, 240 U.S. 594, 596
(1916); SCOTT V. FRAZIER, 253 U.S. 243, 244 (1920); CLARK V. PAUL GRAY,
INC., 306 U.S. 583 (1939). 

/5/  RULE 23(A)(3) PROVIDED: 

     "IF PERSONS CONSTITUTING A CLASS ARE SO NUMEROUS AS TO MAKE IT

  IMPRACTICABLE TO BRING THEM ALL BEFORE THE COURT, SUCH OF THEM,

  ONE OR MORE, AS WILL FAIRLY INSURE THE ADEQUATE REPRESENTATION OF

  ALL MAY, ON BEHALF OF ALL, SUE OR BE SUED, WHEN THE CHARACTER OF

  THE RIGHT SOUGHT TO BE ENFORCED FOR OR AGAINST THE CLASS IS

        .          .  .          . 

     "(3) SEVERAL, AND THERE IS A COMMON QUESTION OF LAW OR FACT

  AFFECTING THE SEVERAL RIGHTS AND A COMMON RELIEF IS SOUGHT." 

/6/  "THE SPURIOUS CLASS SUIT WAS A PERMISSIVE JOINDER DEVICE.  . .
. 

"THERE WAS NO JURAL RELATIONSHIP BETWEEN THE MEMBERS OF THE CLASS;
UNLIKE, FOR EXAMPLE, THE MEMBERS OF AN UNINCORPORATED ASSOCIATION, THEY
HAD TAKEN NO STEPS TO CREATE A LEGAL RELATIONSHIP AMONG THEMSELVES. 
THEY WERE NOT FELLOW TRAVELERS BY AGREEMENT.  THE RIGHT OR LIABILITY OF
EACH WAS DISTINCT.  THE CLASS WAS FORMED SOLELY BY THE PRESENCE OF A
COMMON QUESTION OF LAW OR FACT.  WHEN A SUIT WAS BROUGHT BY OR AGAINST
SUCH A CLASS, IT WAS MERELY AN INVITATION TO JOINDER--AN INVITATION TO
BECOME A FELLOW TRAVELER IN THE LITIGATION, WHICH MIGHT OR MIGHT NOT BE
ACCEPTED.  IT WAS AN INVITATION AND NOT A COMMAND PERFORMANCE."  3B J.
MOORE, FEDERAL PRACTICE PARA. 23.10(1), PP. 2601 - 2603 (2D ED. 1969). 

PROFESSOR MOORE THUS RECOGNIZED THAT THE JURISDICTIONAL-AMOUNT
REQUIREMENTS GOVERNING THE JOINDER OF SEPARATE AND DISTINCT CLAIMS
APPLIED TO SPURIOUS CLASS SUITS: 

"THESE PRINCIPLES APPLIED WITH EQUAL FORCE IN THE CLASS ACTION,
SINCE THE CLASS ACTIONS AS CONSTITUTED UNDER ORIGINAL RULE 23 WERE BUT
PROCEDURAL DEVICES TO PERMIT SOME TO PROSECUTE OR DEFEND AN ACTION
WITHOUT THE NECESSITY OF ALL APPEARING AS PLAINTIFFS OR DEFENDANTS." 
ID., PARA. 23.13, P. 2957. 

/7/  ALFONSO V. HILLSBOROUGH COUNTY AVIATION AUTHORITY, 308 F.2D 724
(CA5 1962); TROUP V. MCCART, 238 F.2D 289 (CA5 1956); HUGHES V.
ENCYCLOPAEDIA BRITANNICA, 199 F.2D 295 (CA7 1952); AMES V. MENGEL CO.,
190 F.2D 344 (CA2 1951); MILLER V. NATIONAL CITY BANK OF NEW YORK, 166
F.2D 723 (CA2 1948); MATLAW CORP. V. WAR DAMAGE CORP., 164 F.2D 281
(CA7 1947); STURGEON V. GREAT LAKES STEEL CORP. 143 F.2D 819 (CA6
1944); BLACK & YATES, INC. V. MAHOGANY ASSN., 129 F.2D 227 (CA3 1942);
WOERTER V. ORR, 127 F.2D 969 (CA10 1942); CENTRAL MEXICO LIGHT & POWER
CO. V. MUNCH, 116 F.2D 85 (CA2 1940); INDEPENDENCE SHARES CORP. V.
DECKERT, 108 F.2D 51, 53 (CA3 1939);, REV'D ON OTHER GROUNDS, 311 U.S.
282 (1940); AMES V. CHESTNUT KNOLLS, INC., 159 F.SUPP.  791 (DEL.
1958); AIR LINE DISPATCHERS ASSN. V. CALIFORNIA EASTERN AIRWAYS, 127
F.SUPP.  521 (ND CAL. 1954); GOLDBERT V. WHITTIER CORP., 111 F.SUPP. 
382 (ED MICH. 1953); SCHUMAN V. LITTLE BAY CONSTR.  CORP., 110 F.SUPP. 
903 (SDNY 1953); GIESECKE V. DENVER TRAMWAY CORP., 81 F.SUPP.  957
(DEL. 1949); KOSTER V. TURCHI, 79 F.SUPP.  268 (ED PA.)  AFF'D, 173
F.2D 605 (CA3 1948); SHIPLEY V. PITTSBURGH & L.E.R. CO., 70 F.SUPP. 
870, 873, 874 - 875 (WD PA. 1947); LONG V. DRAVO CORP. 6 F.R.D. 226 (WD
PA. 1946); SCARBOROUGH V. MOUNTAIN STATES TEL. & TEL. CO., 45 F.SUPP. 
176 (WD TEX. 1942); STEVENSON V. CITY OF BLUEFIELD, 39 SUPP.  F.S462
(SD W.VA. 1941). 

/8/  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD THAT THERE HAD
BEEN NO CHANGE IN THE RULE.  ALVAREZ V. PAN AMERICAN LIFE INSURANCE
CO., 375 F.2D 992, CERT. DENIED, 389 U.S. 827 (1967).  THE SAME RESULT
WAS REACHED IN THE EIGHTH CIRCUIT IN SNYDER V. HARRIS, 390 F.2D 204,
205 (1968), BUT A CONTRARY RULING DEVELOPED IN THE TENTH CIRCUIT, GAS
SERVICE CO. V. COBURN, 389 F.2D 831, 833 - 834 (1968).  WE GRANTED THE
PETITIONS FOR CERTIORARI IN THE LATTER TWO CASES AND DECIDED THEM
TOGETHER.  SNYDER V. HARRIS, 394 U.S. 332 (1969). 

IN SNYDER, THE NAMED PLAINTIFF WAS A SHAREHOLDER OF AN INSURANCE
COMPANY WHO BROUGHT A DIVERSITY SUIT AGAINST THE COMPANY'S BOARD OF
DIRECTORS ON BEHALF OF HERSELF AND APPROXIMATELY 4,000 OTHER
SHAREHOLDERS.  ALTHOUGH MRS. SNYDER'S CLAIM TOTALED ONLY $8,740 IN
DAMAGES, SHE DEFENDED THE MOTION TO DISMISS FOR LACK OF JURISDICTION ON
THE GROUND THAT IF ALL 4,000 POTENTIAL CLAIMS WERE AGGREGATED, THE
AMOUNT IN CONTROVERSY WOULD WELL EXCEED $10,000.  THE DISTRICT COURT
HELD THAT THE CLAIMS COULD NOT BE AGGREGATED, AND THE COURT OF APPEALS
AFFIRMED.  IN THE CONSOLIDATED CASE, GAS SERVICE CO. V. COBURN, A
CUSTOMER OF PETITIONER PUBLIC UTILITY BROUGHT A DIVERSITY SUIT ON
BEHALF OF HIMSELF AND 18,000 OTHER SIMILARLY SITUATED CONSUMERS,
ALLEGING THE ILLEGAL COLLECTION OF A CITY FRANCHISE TAX.  THE SINGLE
NAMED PLAINTIFF'S DAMAGES AMOUNTED TO ONLY $7.81, BUT THE DISTRICT
COURT ALLOWED ALL THE CLAIMS TO BE AGGREGATED TO SATISFY THE
JURISDICTIONAL-AMOUNT REQUIREMENT.  THE COURT OF APPEALS AFFIRMED. 

/9/  THE DISSENT RECOGNIZED THAT CLARK REQUIRES THE DISMISSAL OF ANY
NAMED PLAINTIFF IN AN ACTION WHOSE CASE DOES NOT SATISFY THE
JURISDICTIONAL AMOUNT.  BUT, APPARENTLY UNNAMED MEMBERS OF THE CLASS
WOULD ENJOY ADVANTAGES NOT SHARED BY THE NAMED PLAINTIFFS SINCE THEIR
SEPARATE AND DISTINCT CASES WOULD BE EXEMPTED FROM THE JURISDICTIONAL
AMOUNT REQUIREMENT.  WHY THIS SHOULD BE THE CASE AND HOW THIS SQUARES
WITH CLARK OR WITH SNYDER V. HARRIS ARE LEFT UNEXPLAINED.  WE SIMPLY
APPLY THE RULE GOVERNING NAMED PLAINTIFFS JOINING IN AN ACTION TO THE
UNNAMED MEMBERS OF A CLASS, AS SNYDER V. HARRIS SURELY CONTEMPLATED. 

/10/  THE INEVITABILITY OF THIS CONCLUSION WAS SUGGESTED BY THE
DISSENT IN SNYDER V. HARRIS, 394 U.S., AT 343 (FORTAS, J.,
DISSENTING).  THE SAME RESULT WAS REACHED IN CITY OF INGLEWOOD V. CITY
OF LOS ANGELES, 451 F.2D 948, 952 - 954 (1971), BY THE COURT OF APPEALS
FOR THE NINTH CIRCUIT. 

/11/  BECAUSE A CLASS ACTION INVOKING GENERAL FEDERAL-QUESTION
JURISDICTION UNDER 28 U.S.C. 1331 WOULD BE SUBJECT TO THE SAME
JURISDICTIONAL-AMOUNT RULES WITH RESPECT TO PLAINTIFFS HAVING SEPARATE
AND DISTINCT CLAIMS, THE RESULT HERE WOULD BE THE SAME EVEN IF A CAUSE
OF ACTION UNDER FEDERAL LAW COULD BE STATED, SEE ILLINOIS V. CITY OF
MILWAUKEE, 406 U.S. 91, 98 - 101 (1972), OR IF SUBSTANTIVE FEDERAL LAW
WERE HELD TO CONTROL THIS CASE.  OF COURSE, CONGRESS HAS EXEMPTED MAJOR
AREAS OF FEDERAL-QUESTION JURISDICTION FROM ANY JURISDICTIONAL-AMOUNT
REQUIREMENTS, SEE 28 U.S.C. 1333 - 1334, 1336 - 1340, 1343 - 1345, 1347
- 1358, 1361 - 1362, THE EXEMPTION BEING SO WIDELY APPLICABLE, IN FACT,
THAT THE COURT IN SNYDER V. HARRIS, 394 U.S., AT 341, DISCOUNTED THE
IMPACT OF ITS HOLDING IN FEDERAL CASES. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE COURT HOLDS THAT, IN A DIVERSITY SUIT, A CLASS ACTION UNDER RULE
23(B)(3) OF THE FEDERAL RULES OF CIVIL PROCEDURE IS MAINTAINABLE ONLY
WHEN EVERY MEMBER OF THE CLASS, WHETHER AN APPEARING PARTY OR NOT,
MEETS THE $10,000 JURISDICTIONAL-AMOUNT REQUIREMENT OF 28 U.S.C.
1332(A).  IT FINDS THIS RULING COMPELLED BY THE "RATIONALE OF THIS
COURT'S PRIOR CASES CONSTRUING THE STATUTES DEFINING THE JURISDICTION
OF THE DISTRICT COURT."  I DISAGREE AND RESPECTFULLY DISSENT. 

THE JURISDICTIONAL-AMOUNT PROVISION OF 1332(A) TERSELY STATES THAT
"THE MATTER IN CONTROVERSY (MUST EXCEED) THE SUM OR VALUE OF $10,000. 
. . ."  THOSE WORDS, SUBSTANTIALLY UNCHANGED SINCE THE PASSAGE OF THE
JUDICIARY ACT OF 1789, /1/  APPLY TO "CIVIL ACTIONS," AND SAY NOTHING
ABOUT THE REQUIREMENTS APPLICABLE TO INDIVIDUAL CLAIMANTS AND
INDIVIDUAL CLAIMS.  ALTHOUGH CONGRESS HAS SEVERAL TIMES ALTERED THE
AMOUNT REQUIRED, /2/  GENERALLY UPWARD, 

/3/ IT HAS LEFT THE TASK OF DEFINING THOSE REQUIREMENTS TO THE
JUDICIARY.  /4/  THE RESULT HAS BEEN A RELATIVELY COMPLEX AND SENSITIVE
SET OF RULES DESIGNED TO IMPLEMENT CONGRESS' BROAD DIRECTIVE IN A WAY
THAT IS RESPONSIVE TO THE DEMANDS OF FAIRNESS AND EFFICIENCY IN
ADJUDICATION. 

ONE "BRIGHT LINE" HAS EMERGED TO CONTROL ALL 1332 ACTIONS:  THERE
MUST BE AT LEAST ONE PLAINTIFF, OR JOINT INTEREST, SEEKING MORE THAN
THE STATUTORY AMOUNT.  SNYDER V. HARRIS, 394 U.S. 332 (1969); TROY BANK
V. G.A. WHITEHEAD & CO., 222 U.S. 39 (1911).  THE "LONGSTANDING" AND
"WELL ESTABLISHED"  RULE ON AGGREGATION OF CLAIMS THAT THE COURT
INVOKES WAS DEVELOPED TO DETERMINE WHETHER A GROUP OF CLAIMS WAS
SUFFICIENTLY INTERRELATED TO CONSTITUTE SUCH A "JOINT"  CLAIM OR
"COMMON AND UNDIVIDED INTEREST."  /5/ 

ONCE JURISDICTION HAS ATTACHED TO THE "ACTION," HOWEVER, THE
"AGGREGATION"  RULE HAS BEEN BUTONE OF SEVERAL WAYS TO ESTABLISH
JURISDICTION OVER ADDITIONAL CLAIMS AND PARTIES.  IN THIS CASE, THE
CLAIMS OF THE NAMED PLAINTIFFS PROVIDED THE DISTRICT COURT WITH
JURISDICTION OVER THE DIVERSITY ACTION.  AND PETITIONERS MAKE NO
ARGUMENT INCONSISTENT WITH THE COURT'S HOLDING THAT THE THEORY OF
"JOINT" CLAIMS OR INTERESTS WILL NOT SUPPORT JURISDICTION OVER THE
NONAPPEARING MEMBERS OF THEIR CLASS.  THEIR CONTENTION IS RATHER THAT A
SECOND THEORY, ANCILLARY JURISDICTION, SUPPORTS A DETERMINATION THAT
THOSE CLAIMS MAY BE ENTERTAINED. 

ANCILLARY JURISDICTION TO ADJUDICATE CLAIMS THAT CANNOT BE FITTED
WITHIN THE AGGREGATION RULES HAS LONG BEEN RECOGNIZED BY THIS COURT,
SEE FREEMAN V. HOWE, 24 HOW.  450 (1861); PHELPS V. OAKS, 117 U.S. 236
(1886); WICHITA R. & LIGHT CO. V. PUBLIC UTILITIES COMM'N, 260 U.S. 48
(1922).  BUT, AS ONE COMMENTATOR HAS POINTED OUT, THE RULES DEVELOPED
TO CONTROL THE EXERCISE OF THAT JURISDICTION CANNOT BE EXPLAINED BY
"ANY SINGLE RATIONALIZING PRINCIPLE."  C. WRIGHT, FEDERAL COURTS 9, P.
21 (2D ED. 1970).  THEY ARE INSTEAD ACCOMMODATIONS THAT TAKE INTO
ACCOUNT THE IMPACT OF THE ADJUDICATION ON PARTIES AND THIRD PERSONS,
THE SUSCEPTIBILITY OF THE DISPUTE OR DISPUTES IN THE CASE TO RESOLUTION
IN A SINGLE ADJUDICATION, AND THE STRUCTURE OF THE LITIGATION AS
GOVERNED BY THE FEDERAL RULES OF CIVIL PROCEDURE.  /6/ 

AFTER CONSIDERATION OF THESE FACTORS, THE COURT HAS SUSTAINED THE
EXERCISE OF ANCILLARY JURISDICTION OVER COMPULSORY COUNTERCLAIMS UNDER
RULE 13(A), HORTON V. LIBERTY MUTUAL INSURANCE CO., 367 U.S. 348,
(1961), AFF'G 275 F.2D 148 (CA5 1960); MOORE V. NEW YORK COTTON
EXCHANGE, 270 U.S. 593 (1926).  IT HAS ALSO DONE SO WHERE A PARTY'S
INTERVENTION WAS HELD TO BE A MATTER OF RIGHT, AS IS NOW PROVIDED BY
RULE 24(A), PHELPS V. OAKS, SUPRA; SEE 2 W. BARRON & A. HOLTZOFF,
FEDERAL PRACTICE & PROCEDURE 593 (C. WRIGHT ED. 1961).  FOLLOWING THIS
LEAD, THE COURTS OF APPEALS HAVE SUSTAINED ANCILLARY JURISDICTION OVER
CROSS-CLAIMS PERMITTED BY RULE 13(G), R.M. SMYTHE & CO. V. CHASE
NATIONAL BANK, 291 F.2D 721 (CA2 1961); CHILDRESS V. COOK, 245 F.2D 798
(CA5 1957); OVER IMPLEADED DEFENDANTS UNDER RULE 14, PENNSYLVANIA R.
CO. V. ERIE AVENUE WAREHOUSE CO., 302 F.2D 843 (CA3 1962); AND OVER
DEFENDANTS INTERPLEADED UNDER RULE 22, WALMAC CO. V. ISAACS, 220 F.2D
108 (CA1 1955).  SEE DEVELOPMENTS IN THE LAW--MULTI-PARTY LITIGATION IN
THE FEDERAL COURTS, 71 HARV. L. REV. 874 PASSIM (1958).     /7/ 

CLASS ACTIONS UNDER RULE 23(B)(3) ARE EQUALLY APPROPRIATE FOR SUCH
TREATMENT.  THERE ARE AMPLE ASSURANCES, IN THE PROVISIONS OF THE RULE
THAT "THE QUESTIONS OF LAW OR FACT COMMON TO THE MEMBERS OF THE CLASS
(MUST) PREDOMINATE OVER ANY QUESTIONS AFFECTING ONLY INDIVIDUAL
MEMBERS,"  /8/  TO GUARANTEE THAT ANCILLARY JURISDICTION WILL NOT
BECOME A FACADE HIDING ATTEMPTS TO SECURE FEDERAL ADJUDICATION OF
NONDIVERSE PARTIES' DISPUTES OVER UNRELATED CLAIMS.  AND THE PRACTICAL
REASONS FOR PERMITTING ADJUDICATION OF THE CLAIMS OF THE ENTIRE CLASS
ARE CERTAINLY AS STRONG AS THOSE SUPPORTING ANCILLARY JURISDICTION OVER
COMPULSORY COUNTERCLAIMS AND PARTIES THAT ARE ENTITLED TO INTERVENE AS
OF RIGHT.  CLASS ACTIONS WERE BORN OF NECESSITY.  /9/  THE ALTERNATIVES
WERE JOINDER OF THE ENTIRE CLASS, OR REDUNDANT LITIGATION OF THE COMMON
ISSUES.  THE COST TO THE LITIGANTS AND THE DRAIN ON THE RESOURCES OF
THE JUDICIARY RESULTING FROM EITHER ALTERNATIVE WOULD HAVE BEEN
INTOLERABLE.  AND THIS CASE PRESENTS PRECISELY THOSE DIFFICULTIES:
APPROXIMATELY 240 CLAIMANTS ARE INVOLVED, AND THE ISSUES WILL DOUBTLESS
CALL FOR EXTENSIVE USE OF EXPERT TESTIMONY ON DIFFICULT SCIENTIFIC
ISSUES. 

IT IS, OF COURSE, TRUE THAT AN EXERCISE OF ANCILLARY JURISDICTION IN
SUCH CASES WOULD RESULT IN SOME INCREASE IN THE FEDERAL COURTS'
WORKLOAD, FOR UNLESS THE CLASS ACTION IS PERMITTED MANY OF THE
CLAIMANTS WILL BE UNABLE TO OBTAIN ANY FEDERAL DETERMINATION OF THEIR
RIGHTS.  BUT THAT OBJECTION IS APPLICABLE TO EVERY OTHER EXERCISE OF
ANCILLARY JURISDICTION.  IT SHOULD BE A SUFFICIENT ANSWER THAT DENIAL
OF ANCILLARY JURISDICTION WILL IMPOSE A MUCH LARGER BURDEN ON THE STATE
AND FEDERAL JUDICIARY AS A WHOLE, AND WILL SUBSTANTIALLY IMPAIR THE
ABILITY OF THE PROSPECTIVE CLASS MEMBERS TO ASSERT THEIR CLAIMS. 

IF THE STATE PROVIDES A CLASS ACTION DEVICE COMPARABLE TO RULE
23(B)(3), SOME OF THIS INEFFICIENCY AND UNFAIRNESS MAY BE AVOIDED, BUT
CERTAINLY NOT ALL.  THE NAMED PLAINTIFFS, AND ANY OTHER MEMBERS OF
THEIR CLASS WHO CAN MEET THE JURISDICTIONAL-AMOUNT REQUIREMENT, MAY
CHOOSE TO LITIGATE THOSE CLAIMS IN THE DISTRICT COURTS, AS THESE
PLAINTIFFS HAVE SHOWN TO BE THEIR PREFERENCE.  MOREOVER, THEY WILL
PROBABLY NOW BE REQUIRED SEPARATELY TO LITIGATE THE COMMON ISSUES IN
THEIR CASES, /10/  THUS POSSIBLY ENLARGING THE FEDERAL JUDICIARY'S
BURDEN, AND IRONICALLY REVERSING THE COURT'S APPARENT PURPOSE. 

MOREOVER, IF THE STATE DOES NOT PROVIDE A RULE 23(B)(3) DEVICE,
LITIGATION OF THE CLAIMS OF CLASS MEMBERS WHO EITHER LACK THE
JURISDICTIONAL AMOUNT OR SIMPLY PREFER TO LITIGATE THEIR CLAIMS IN THE
STATE COURTS--AS THEY WOULD BE FREE TO DO UNDER ANY CONSTRUCTION OF THE
JURISDICTIONAL REQUIREMENT--WILL PRODUCE A MULTITUDE OF SUITS.  AND THE
CHIEF INFLUENCE MITIGATING THAT FLOOD--THE FACT THAT MANY OF THESE
LANDOWNERS' CLAIMS ARE LIKELY TO BE WORTHLESS BECAUSE THE COST OF
ASSERTING THEM ON A CASE-BY-CASE BASIS WILL EXCEED THEIR POTENTIAL
VALUE--WILL DO NO JUDICIAL SYSTEM CREDIT. 

NOT ONLY DOES THE PRACTICAL DESIRABILITY OF SUSTAINING ANCILLARY
JURISDICTION BRING RULE 23(B)(3) CLASS ACTIONS WITHIN THE LOGIC OF OUR
DECISIONS, BUT THE COURT HAS LONG SINCE RECOGNIZED THAT FACT, AND HAS
SUSTAINED ANCILLARY JURISDICTION OVER THE NONAPPEARING MEMBERS IN A
CLASS ACTION WHO DO NOT MEET THE REQUIREMENTS OF TRADITIONAL RULE OF
COMPLETE DIVERSITY LAID DOWN IN STRAWBRIDGE V. CURTISS, 3 CRANCH 267
(1806).  IN SUPREME TRIBE OF BEN HUR V. CAUBLE, 255 U.S. 356 (1921),
THE COURT NOT ONLY HELD THAT ONLY THE ORIGINAL NAMED PLAINTIFFS AND
DEFENDANTS HAD TO SATISFY THE DIVERSITY REQUIREMENTS, BUT IT ALSO
STATED THAT INTERVENTION BY NONDIVERSE MEMBERS OF THE CLASS WOULD NOT
DESTROY THE DISTRICT COURT'S JURISDICTION.  ID., AT 366.  PARTICULARLY
IN VIEW OF THE CONSTITUTIONAL BACKGROUND ON WHICH THE STATUTORY
DIVERSITY REQUIREMENTS ARE WRITTEN, SEE ZAHN V. INTERNATIONAL PAPER
CO., 469 F.2D 1033, 1038 (CA2 1972) (TIMBERS, J., DISSENTING), IT IS
DIFFICULT TO UNDERSTAND WHY THE PRACTICAL APPROACH THE COURT TOOK IN
SUPREME TRIBE OF BEN-HUR MUST BE ABANDONED WHERE THE PURELY STATUTORY
"MATTER IN CONTROVERSY" REQUIREMENT IS CONCERNED. 

CERTIANLY THIS RESULT IS NOT COMPELLED BY SNYDER V. HARRIS, 394 U.S.
332 (1969), FOR THAT DECISION TURNED SOLELY ON WHETHER FEDERAL
DIVERSITY JURISDICTION COULD BE ESTABLISHED OVER THE "ACTION."  NOR CAN
I ACCEPT THE COURT'S CONTENTION THAT SNYDER'S CITATION TO CLARK V. PAUL
GRAY, INC., 306 U.S. 583 (1939), CONTROLS HERE.  THAT CASE DEALT ONLY
WITH THE JURISDICTIONAL-AMOUNT REQUIREMENTS FOR THE ORIGINAL NAMED
PLAINTIFFS WHO LITIGATED THE CASE.  HERE PETITIONERS CLEARLY MEET THAT
REQUIREMENT.  SNYDER'S CHARACTERIZATION OF CLARK AS A CLASS ACTION DID
NOT TURN THAT CASE INTO A PRECEDENT FOR APPLYING THE JURISDICTIONAL
AMOUNT REQUIREMENTS TO NONAPPEARING CLASS MEMBERS WHO, SO FAR AS THE
COURT INDICATED IN CLARK, WERE NOT EVEN INVOLVED IN THAT CASE. 

IT WOULD BE FAR MORE CONSISTENT WITH CLARK FOR THE COURT TO RULE, AS
IT DID IN SUPREME TRIBE OF BEN-HUR, THAT ONLY THE ORIGINAL NAMED
PLAINTIFFS MUST MEET THE JURISDICTIONAL REQUIREMENTS, AND THAT
NONAPPEARING CLASS MEMBERS AND INTERVENORS NEED NOT.  SUCH A RULING,
WHILE GOING A STEP FARTHER THAN PETITIONERS SEEK, WOULD BE REASONABLE
AND PRAGMATICALLY JUSTIFIED.  THERE IS A SUBSTANTIAL DIFFERENCE BETWEEN
THE IMPACT ON A CASE OF AN APPEARING PARTY AND A NONAPPEARING CLASS
MEMBER, AND INTERVENTION POSES NO THREAT SINCE THE DISTRICT COURTS ARE
GIVEN DISCRETION BY RULE 23(D)(3) TO PERMIT INTERVENTION SUBJECT TO
APPROPRIATE CONDITIONS.  SEE 3B J.MOORE, FEDERAL PRACTICE PARA.
23.73(3), P. 1441 (2D ED. 1969).  THE QUESTION IN THIS CASE IS NOT
WHETHER THE CLASS ACTION MUST BE PERMITTED, BUT WHETHER THE DISTRICT
COURT HAS THE POWER TO DETERMINE WHETHER TO PERMIT IT, TAKING INTO
ACCOUNT THE ELABORATE GUIDANCE AND DISCRETION PROVIDED BY RULE 23. 

THE COURT ALSO APPEARS TO RELY ON SNYDER'S REJECTION OF "THE NOTION
THAT THE 1966 AMENDMENTS TO RULE 23 WERE INTENDED TO EFFECT, OR
EFFECTED, ANY CHANGE IN THE MEANING AND APPLICATION OF THE
JURISDICTIONAL AMOUNT REQUIREMENT INSOFAR AS CLASS ACTIONS ARE
CONSTRUED."  ANTE, AT 299.  SNYDER BASED THIS REJECTION ON RULE 82'S
ADMONITION THAT THE FEDERAL RULES OF CIVIL PROCEDURE ARE NOT TO BE
"CONSTRUED TO EXTEND OR LIMIT THE JURISDICTION OF THE UNITED STATES
DISTRICT COURTS . . . ."  RELIANCE ON RULE 82 WAS PROPER THERE BECAUSE
THE PETITIONER CONTENDED THAT THE RESTRUCTURING OF RULE 23 TO ABOLISH
"SPURIOUS" CLASS ACTIONS IN FAVOR OF A "FUNCTIONAL" APPROACH, THAT TOOK
INTO ACCOUNT THE NATURE OF THE LITIGATION AND ITS EFFECTS, UNDERCUT
THIS COURT'S LONG LINE OF DECISIONS ESTABLISHING THE MINIMUM
REQUIREMENTS FOR DIVERSITY JURISDICTION OVER A "CIVIL ACTION." 

BUT THIS CASE PRESENTS NO SUGGESTION THAT THE 1966 AMENDMENTS
OVERRIDE THE COURT'S DECISIONS CONSTRUING 1332.  THERE ARE NO EARLIER
DECISIONS CONSTRUING THE JURISDICTIONAL-AMOUNT REQUIREMENTS FOR THE
NONAPPEARING MEMBERS OF A "SPURIOUS" CLASS, PROBABLY BECAUSE THE OLD
RULE DID NOT BIND MEMBERS OF THE CLASS UNLESS THEY AFFIRMATIVELY
REQUESTED INCLUSION.  /11/  NOR DID THE 1966 AMENDMENTS BRING RULE
23(B)(3) CLASS ACTIONS WITHIN ANY OTHER HOLDINGS.  IF ANYTHING, THEY
MERELY MADE THE DETERMINATION WHETHER THE CLASS SHOULD BE PERMITTED TO
TURN MORE DIRECTLY ON THE KINDS OF CONCERNS THAT HAVE MOTIVATED THE
EXERCISE OF ANCILLARY JURISDICTION.  /12/ 

THE QUESTION IN THIS CASE OUGHT, INSTEAD, TO BE WHETHER CHANGES IN
THE CIVIL RULES MAY AFFECT, AND BE AFFECTED BY, THE DETERMINATION
WHETHER TO EXERCISE EXISTING JURISDICTION.  OF COURSE, THEY MUST.  AS
THE REPORTER TO THE ADVISORY COMMITTEE ON CIVIL RULES THAT PREPARED THE
1966 AMENDMENTS HAS OBSERVED, "(FROM THE START THE CIVIL RULES,
ELABORATING AND COMPLICATING ACTIONS THROUGH JOINDER OF CLAIMS AND
PARTIES, HAVE PROFOUNDLY INFLUENCED JURISDICTIONAL RESULT."  /13/  THE
COURT'S PRIOR DECISIONS UPHOLDING NOVEL EXERCISES OF ANCILLARY
JURISDICTION HAVE MADE LIBERAL USE OF THE OPPORTUNITIES PRESENTED BY
THE CIVIL RULES AND AMENDMENTS OF THEM, AND RULE 82 HAS STOOD AS NO BAR
TO THAT ACTION. 

INDEED, THE EFFECTS OF TODAY'S DECISION WILL ALSO BE INFLUENCED BY
THE FORM OF RULE 23.  THE DISTRICT COURT, AFTER RULING THAT ANCILLARY
JURISDICTION COULD NOT BE EXERCISED, WAS CONFRONTED WITH A DILEMMA THAT
DID NOT EXIST PRIOR TO THE 1966 AMENDMENTS:  IDENTIFICATION OF THE
MEMBERS OF THE CLASS THAT WOULD BE BOUND BY THE DECISION SO THAT THEY
COULD BE PROVIDED THE REQUIRED NOTICE.  /14/  AFTER DETERMINING THAT IT
WAS NOT POSSIBLE TO DETERMINE WHICH OF THE 240 PROPOSED MEMBERS MET THE
$10,000 REQUIREMENT, THE COURT DENIED CLASS ACTION STATUS TO ALL.  BUT
FEW, IF ANY, RULE 23(B)(3) CLASSES WILL LEND THEMSELVES TO A
DETERMINATION, ON THE BASIS OF THE PLEADINGS, THAT EACH PROPOSED MEMBER
MEETS THAT REQUIREMENT.  INTERVENTION, AT LEAST FOR THE PURPOSE OF
ESTABLISHING JURISDICTION, MAY BE NECESSARY, AND THAT IS MORE THAN EVEN
THE OLD RULE CONTEMPLATED WHEN IT SPECIFIED THAT CLASS MEMBERS HAD TO
REQUEST INCLUSION IN ORDER TO BE BOUND. 

THUS, ON THE BASIS OF THE COURT'S IMPLICIT HOLDING THAT ANCILLARY
JURISDICTION WOULD NOT SUPPORT RECOGNITION OF A RULE 23(B)(3) CLASS,
THE 1966 AMENDMENTS WILL STILL INFLUENCE THE NUMBER OF CASES IN WHICH
FEDERAL JURISDICTION WILL BE EXERCISED.  THEY WILL, AS IN THIS CASE,
SIMPLY CURTAIL THE EXERCISE OF JURISDICTION RATHER THAN EXPAND IT.  IN
VIEW OF THE COURT'S PREVIOUS CONCERN WITH PRACTICAL REALITIES IN BOTH
ITS CASES INVOLVING CLASS ACTIONS AND ITS CASES INVOLVING THE EXERCISE
OF ANCILLARY JURISDICTION, I THINK THAT THIS LIMITATION IS BOTH
UNWARRANTED AND UNWISE. 

/1/  SECTION 11, 1 STAT. 78.  THE FIRST JUDICIARY ACT USED THE TERM
"MATTER IN DISPUTE," IBID., AND THAT PHRASE WAS RETAINED UNTIL 1911,
WHEN THE JURISDICTIONAL AMOUNT WAS INCREASED FROM $2,000 TO $3,000, ACT
OF MAR. 3, 1911, 24, 36 STAT. 1091, AND THE WORDS "MATTER IN
CONTROVERSY" WERE SUBSTITUTED. 

/2/  THE AMENDMENTS ARE CATALOGUED IN N. 1 OF THE COURT'S OPINION. 

/3/  ADJUSTMENTS FOR CHANGES IN THE PURCHASING POWER OF THE DOLLAR
GENERALLY HAVE BEEN GIVEN AS THE EXPLANATION FOR THIS PHENOMENON.  SEE,
E.G., S. REP. NO. 1830, 85TH CONG., 2D SESS., 4 (1958): 

"THE PRESENT REQUIREMENT OF $3,000 HAS BEEN ON THE STATUTE BOOKS
SINCE 1911 AND OBVIOUSLY THE VALUE OF THE DOLLAR IN TERMS OF ITS
PURCHASING POWER HAS UNDERGONE MARKED DEPRECIATION SINCE THAT DATE. 
THE CONSUMERS PRICE INDEX FOR MODERATE INCOME FAMILIES IN LARGE CITIES
INDICATES A RISE OF ABOUT 152 PERCENT SINCE 1913, SHORTLY AFTER THE
PRESENT $3,000 MINIMUM WAS ESTABLISHED.  . . . ACCORDINGLY THE
COMMITTEE BELIEVES THAT THE STANDARD FOR FIXING JURISDICTIONAL AMOUNTS
SHOULD BE INCREASED TO $10,000."  SEE H.R. REP. NO. 1706, 85TH CONG.,
2D SESS., 3 (1958) (CONTAINING IDENTICAL LANGUAGE).  THE ONLY DECREASE,
IN 1801, IS DISCUSSED IN N.1 OF THE COURT'S OPINION. 

/4/  THE ONLY RECENT SUGGESTION OF CONGRESSIONAL PURPOSE IS AN OFT
REPEATED STATEMENT IN THE LEGISLATIVE HISTORY OF THE 1958 AMENDMENTS: 

     "THE RECOMMENDATIONS OF THE JUDICIAL CONFERENCE (OF THE UNITED

STATES) REGARDING THE AMOUNT IN CONTROVERSY, WHICH THIS COMMITTEE

  APPROVES, IS BASED ON THE PREMISE THAT THE AMOUNT SHOULD BE FIXED

  AT A SUM OF MONEY THAT WILL MAKE JURISDICTION AVAILABLE IN ALL

  SUBSTANTIAL CONTROVERSIES WHERE OTHER ELEMENTS OF FEDERAL

  JURISDICTION ARE PRESENT.  THE JURISDICTIONAL AMOUNT SHOULD NOT

  BE SO HIGH AS TO CONVERT THE FEDERAL COURTS INTO COURTS OF BIG

  BUSINESS NOR SO LOW AS TO FRITTER AWAY THEIR TIME IN THE TRIAL OF

  PETTY CONTROVERSIES."  (EMPHASIS ADDED.) 

S. REP. NO. 1830, SUPRA, AT 3 - 4; H.R. REP. NO. 1706, SUPRA, AT 3
(CONTAINING IDENTICAL LANGUAGE). 

/5/  SEE TROY BANK V. G.A. WHITEHEAD & CO., 222 U.S. 39 (1911), AND
CASES CITED IN N.2 OF THE COURT'S OPINION.  THE COURT ALSO OBSERVES,
QUITE CORRECTLY, THAT THE SAME RULE ON AGGREGATION HAS BEEN APPLIED TO
THE FEDERAL-QUESTION JURISDICTION, 28 U.S.C. 1331.  BUT THE ASSERTION,
IN THE COURT'S FINAL FOOTNOTE, THAT THE SAME JURISDICTIONAL RULES IT
ANNOUNCES FOR 1332 WILL APPLY TO 1331, IS EVEN MORE QUESTIONABLE THAN
ITS APPLICATION OF THOSE RULES IN THIS CASE.  THE CONTINUED NEED FOR
EXERCISE OF DIVERSITY JURISDICTION, AT LEAST WHERE A SHOWING OF
PREJUDICE IS NOT MADE, HAS BEEN CHALLENGED BY RESPECTED AUTHORITIES. 
SEE WECHSLER, FEDERAL JURISDICTION AND THE REVISION OF THE JUDICIAL
CODE, 13 LAW & CONTEMP.  PROB.  216, 234 - 240 (1948); CURRIE, THE
FEDERAL COURTS AND THE AMERICAN LAW INSTITUTE (PTS.  I & II), 36 U.
CHI.  L. REV. 1, 268 (1968, 1969).  CF. S.REP.  NO. 1830, SUPRA, N.3. 
BUT A SHARPLY DIFFERENT VIEW HAS BEEN TAKEN OF THE FEDERAL-QUESTION
JURISDICTION, AND THE COURT HAS REFLECTED THAT VIEW IN ITS DECISIONS
UPHOLDING THE EXERCISE OF JURISDICTION OVER PENDENT CLAIMS UNDER STATE
LAW.  SEE MINE WORKERS V. GIBBS, 383 U.S. 715 (1966).  SIMILARLY
SIGNIFICANT DISINCENTIVES TO ASSERTION OF FEDERAL RIGHTS IN FEDERAL
FORUMS ARE LIKELY IF CLAIMANTS ARE BARRED FROM COMBINING TO REDUCE THE
TIME AND COST OF LITIGATION. 

/6/  SEE FRASER, ANCILLARY JURISDICTION AND THE JOINDER OF CLAIMS IN
THE FEDERAL COURTS, 33 F.R.D. 27 (1963); H. HART & H. WECHSLER, THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 1075 - 1081 (2D ED. 1973). 
PROFESSOR KAPLAN, THE REPORTER FOR THE 1966 AMENDMENTS, HAS ARTICULATED
HIS EXPECTATION THAT RULE 23 WOULD BE SIMILARLY ACCOMMODATED:     "NEW
RULE 23 ALTERS THE PATTERN OF CLASS ACTIONS; SUBDIVISION (B)(3), IN
PARTICULAR, IS A NEW CATEGORY DELIBERATELY CREATED.  LIKE OTHER
INNOVATIONS FROM TIME TO TIME INTRODUCED INTO THE CIVIL RULES, THOSE AS
TO CLASS ACTIONS CHANGE THE TOTAL SITUATION ON WHICH THE STATUTES AND
THEORIES REGARDING SUBJECT MATTER JURISDICTION ARE BROUGHT TO BEAR." 
KAPLAN, CONTINUING WORK OF THE CIVIL COMMITTEE:  1966 AMENDMENTS OF THE
FEDERAL RULES OF CIVIL PROCEDURE (I), 81 HARV. L. REV. 356, 399 - 400
(1967). 

/7/  SEE ALSO 7 C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE
1756, PP. 564 - 565 (1972), APPROVING AS SOUND AND "A NATURAL COROLLARY
TO OTHER APPLICATIONS OF THE ANCILLARY JURISDICTION CONCEPT," A HOLDING
THAT ONLY ONE REPRESENTATIVE PARTY NEED MEET THE JURISDICTIONAL-AMOUNT
REQUIREMENT TO SUPPORT A CLASS ACTION IN LESCH V. CHICAGO & EASTERN
ILLINOIS R. CO., 279 F.SUPP.  908 (ND ILL. 1968). 

/8/  RULE 23(B)(3).  THE PROVISION FURTHER STATES: 

"THE MATTERS PERTINENT TO THE FINDINGS INCLUDE:  (A) THE INTEREST OF
MEMBERS OF THE CLASS IN INDIVIDUALLY CONTROLLING THE PROSECUTION OR
DEFENSE OF SEPARATE ACTIONS; (B) THE EXTENT AND NATURE OF ANY
LITIGATION CONCERNING THE CONTROVERSY ALREADY COMMENCED BY OR AGAINST
MEMBERS OF THE CLASS; (C) THE DESIRABILITY OR UNDESIRABILITY OF
CONCENTRATING THE LITIGATION OF THE CLAIMS IN THE PARTICULAR FORUM; (D)
THE DIFFICULTIES LIKELY TO BE ENCOUNTERED IN THE MANAGEMENT OF A CLASS
ACTION." 

/9/  SEE 3B J. MOORE, FEDERAL PRACTICE PARAS. 23.02(1), 23.05 PASSIM
(2D ED. 1969). 

/10/  THIS IS THE PROBABLE CONSEQUENCE OF THE DISTRICT COURT'S
DETERMINATION, AFTER HOLDING THAT EACH CLASS MEMBER HAD TO MEET THE
JURISDICTIONAL-AMOUNT REQUIREMENT, THAT IT COULD FIND "NO APPROPRIATE
CLASS OVER WHICH (IT HAD) JURISDICTION."  53 F.R.D. 430, 433 (VT.
1971); SEE INFRA, AT 311 - 312. 

/11/  SEE DEVELOPMENTS IN THE LAW--MULTIPARTY LITIGATION IN THE
FEDERAL COURTS, 71 HARV. L. REV. 874, 941 - 942 AND CASES CITED N.493
(1958). 

/12/  SEE RULES 23(A)(1), (2), (3) AND (B)(3)(A), (B), (C).  CF. H.
HART & H. WECHSLER, SUPRA, N.6 AT 1078.  ("UNDER THE REVISED RULE,
WHICH CONTEMPLATES THAT IN A CLASS ACTION ALL MEMBERS OF THE CLASS NOT
PROPERLY EXCLUDED WILL BE BOUND BY THE JUDGMENT, THE 'SPURIOUS' CLASS
ACTION NO LONGER EXISTS, AND ANCILLARY JURISDICTION MAY SUPPORT
INTERVENTION BY CLASS MEMBERS IN ALL CASES.") 

/13/  KAPLAN, SUPRA, N.6 AT 400. 

/14/  RULES 23(C)(2), AND (3). 

PETER F. LANGROCK ARGUED THE CAUSE AND FILED A BRIEF FOR 

PETITIONERS. 

TAGGART WHIPPLE ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE RICHARD E. NOLAN, WILLIAM H. LEVIT, JR., NICHOLAS R.
WEISKOPF, AND GEORGE W. RAY, JR.  /1/ 

/1/  NORMAN REDLICH AND STANLEY BUCHSBAUM FILED A BRIEF FOR THE CITY
OF NEW YORK AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :










BONELLI CATTLE CO. V. ARIZONA, 414 U.S. 313 


       CERTIORARI TO THE SUPREME COURT OF ARIZONA

  NO. 72 - 397.  ARGUED OCTOBER 15, 1973--DECIDED DECEMBER 17,

           1973;

        107 ARIZ. 465, 489 P.2D 699, AND 108 ARIZ. 258, 495 P.2D

           1312, REVERSED AND REMANDED. 


    CERTAIN LAND ABUTTING THE EAST BANK OF THE COLORADO RIVER WAS

  CONVEYED IN 1910 BY FEDERAL PATENT TO A RAILROAD COMPANY.  UPON

  ADMISSION TO THE UNION IN 1912 ARIZONA SUCCEEDED THE FEDERAL

  GOVERNMENT TO TITLE TO THE BED OF THE COLORADO RIVER.  THE

  RIVER'S GRADUAL EASTWARD MOVEMENT SUBMERGED THE SUBJECT LAND BY

  EROSION SO THAT TITLE WAS MECHANICALLY TRANSFERRED TO THE STATE

  AS PART OF THE RIVERBED.  IN 1955 PETITIONER CATTLE COMPANY

  ACQUIRED TITLE TO THE ORIGINAL RAILROAD GRANT, MOST OF WHICH BY

  THAT TIME WAS COVERED BY WATER.  IN 1959 THE SUBJECT LAND WAS

ABANDONED BY THE COLORADO AS A RESULT OF A FEDERAL RECHANNELING

  PROJECT.  PETITIONER CATTLE COMPANY FILED THIS ACTION TO QUIET

  TITLE AND PREVAILED IN THE LOWER COURTS, BUT THE ARIZONA SUPREME

  COURT REVERSED, HOLDING THAT UNDER THE EQUAL-FOOTING DOCTRINE AND

  THE SUBMERGED LANDS ACT, ARIZONA HELD TITLE TO THE BEDS OF ALL

  NAVIGABLE WATERS WITHIN ITS BORDERS AND THUS TO THE SUBJECT LAND

  AS A RESULT OF THE RIVER'S GRADUAL EASTWARD MOVEMENT.  HELD: 

     1.  OWNERSHIP OF THE SUBJECT LAND IS GOVERNED BY FEDERAL LAW. 

  THE ISSUE HERE IS NOT WHAT RIGHTS THE STATE HAS ACCORDED PRIVATE

  OWNERS IN LANDS THAT THE STATE HOLDS AS SOVEREIGN BUT HOW FAR THE

  STATE'S SOVEREIGN RIGHT EXTENDS UNDER THE EQUAL-FOOTING DOCTRINE

  AND THE FEDERAL SUBMERGED LANDS ACT, I.E., WHETHER THE STATE

  RETAINS TITLE TO LANDS FORMERLY BENEATH THE COLORADO OR WHETHER

  TITLE THERETO IS DEFEASIBLE BY WITHDRAWAL OF THOSE WATERS.  PP.

  317 - 321. 

     2.  THE EQUAL-FOOTING DOCTRINE DOES NOT SUPPORT THE STATE'S

  CLAIM, SINCE WHEN THE WATER RECEDED FROM THE DISPUTED LAND, THERE

  WAS NO LONGER A PUBLIC PURPOSE TO BE SERVED BY THE STATE, AS

  SOVEREIGN, HOLDING TITLE THERETO.  PP. 321 - 324. 

     3.  NOR DOES THE SUBMERGED LANDS ACT, WHICH DID NOT ABROGATE

  THE FEDERAL LAW OF ACCRETION, SUPPORT THE STATE'S CLAIM, SINCE

  THAT ACT DOES NOT EXTEND TO THE STATES ANY INTEREST IN THE BEDS

  OF NAVIGABLE RIVERS BEYOND THOSE AFFORDED BY THE EQUAL-FOOTING

  DOCTRINE.  PP. 324 - 325. 

     4.  TITLE TO THE SUBJECT LAND, UNDER THE APPLICABLE FEDERAL

  COMMON LAW, IS VESTED IN PETITIONER AS RIPARIAN LANDOWNER AND NOT

  IN THE STATE AS OWNER OF THE RIVERBED.  PP. 325 - 332. 

     (A) ANALYSIS OF THE INTERESTS OF THE STATE AND PETITIONER, IN

  LIGHT OF THE RATIONALES FOR THE FEDERAL COMMON-LAW DOCTRINES OF

  ACCRETION AND AVULSION, COMPELS THE CONCLUSION THAT, AS BETWEEN

  THE STATE, AS OWNER OF THE RIVERBED, AND PETITIONER, AS RIPARIAN

  OWNER, THE SURFACING OF THE SUBJECT LAND SHOULD BE TREATED AS AN

  ACCRETION; HENCE TITLE TO THE DISPUTED LAND SHOULD BE VESTED IN

  PETITIONER.  PP. 325 - 330. 

     (B) THE DOCTRINE OF AVULSION (WHEREBY AN AVULSIVE CHANGE
CAUSED

  BY A STREAM SUDDENLY AND PERCEPTIVELY ABANDONING ITS OLD CHANNEL

  DOES NOT AFFECT TITLE AND THE BOUNDARY ESTABLISHED BY THE FORMER

  RIVER STREAM REMAINS AT THAT LINE, EVEN IF THE RESULT IS TO CUT

  OFF A LANDOWNER'S RIPARIAN RIGHTS) DOES NOT APPLY HERE BECAUSE OF

  THE LIMITED INTERESTS OF THE STATE IN THE SUBJECT PROPERTY.  PP.

  328 - 329. 

MARSHALL, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, BRENNAN, WHITE, BLACKMUN, AND POWELL, JJ., JOINED. 
STEWART, J., FILED A DISSENTING OPINION, POST, P. 332.  REHNQUIST, J.,
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

OPINION OF THE COURT BY MR. JUSTICE MARSHALL, ANNOUNCED BY MR.
JUSTICE BRENNAN. 

THE QUESTION FOR DECISION IS WHETHER TITLE TO LAND ABANDONED BY THE
STREAM OF THE COLORADO RIVER AS A RESULT OF A FEDERAL RECHANNELING
PROJECT VESTS IN THE STATE OF ARIZONA, AS OWNER OF THE BEDS UNDER
NAVIGABLE STREAMS WITHIN ITS BORDERS, OR IN PETITIONER CATTLE COMPANY,
AS THE OWNER OF LAND RIPARIAN TO THE RIVER AT THE TIME OF THE
RECHANNELING. 

THE CIRCUMSTANCES THAT GIVE RISE TO THIS CASE ARE AS FOLLOWS.  IN
1910, THE SUBJECT LAND WAS CONVEYED BY FEDERAL PATENT, AS PART OF A
LARGER PARCEL, TO THE SANTA FE PACIFIC RAILROAD CO. A SURVEY CONDUCTED
IN 1905 AND 1906, AND APPROVED BY THE SURVEYOR GENERAL OF THE UNITED
STATES IN 1906, INDICATES THAT AS OF THE DATE OF THE PATENT, THE SANTA
FE PARCEL ABUTTED THE EAST BANK OF THE COLORADO RIVER.  /1/  UPON
ADMISSION TO THE UNION IN 1912, ARIZONA SUCCEEDED THE FEDERAL
GOVERNMENT TO TITLE TO THE BED OF THE COLORADO RIVER.  THE EXACT
LOCATION OF THE RIVER IN 1912 IN RELATION TO THE SUBJECT PROPERTY IS
UNCLEAR FROM THE RECORD, BUT IT IS GENERALLY AGREED THAT BETWEEN 1903
AND 1959 (WHEN IT WAS RECHANNELED) THE RIVER MOVED GRADUALLY EASTWARD,
ERODING ITS EAST BANK AND DEPOSITING ALLUVION ON ITS WEST BANK,
RESULTING IN THE SUBMERGENCE BY EROSION OF THE SUBJECT LAND.  AS THE
RIVER CREPT EASTWARD, THE BOUNDARY BETWEEN UPLAND OWNERS AND THE STATE
OWNED RIVERBED MOVED MECHANICALLY WITH IT, TRANSFERRING TITLE TO THE
LANDS WHICH BECAME PART OF THE RIVERBED TO THE STATE.  THE OPERATION OF
THE HOOVER DAM, BEGUN IN 1938, REDUCED THE FLOW OF WATER IN THE
COLORADO RIVER AND SUBSTANTIALLY DECREASED ITS ANNUAL FLOOD STAGE HIGH
WATER MARK.  NONETHELESS, BY 1955, WHEN THE BONELLI CATTLE CO. ACQUIRED
TITLE TO THE SUBJECT PORTION OF THE ORIGINAL SANTA FE GRANT, ALL BUT 60
ACRES IN THE SOUTHEAST CORNER OF ITS PARCEL WAS COVERED BY WATER.  IN
1959, A FEDERAL BUREAU OF RECLAMATION PROJECT DEEPENED AND RECHANNELED
THE COLORADO RIVER IN THE AREA OF THE SUBJECT LAND, THEREBY CONFINING
THE STREAM OF THE RIVER TO A SUBSTANTIALLY REDUCED PORTION OF THE
BONELLI PROPERTY.  /2/ 

IN 1962, THE BONELLI CATTLE CO. FILED THE INSTANT ACTION TO QUIET
TITLE TO THE LAND FROM WHICH THE RIVER HAD WITHDRAWN AS A RESULT OF THE
FEDERAL RECHANNELING PROJECT.  THE STATE TRIAL COURT GRANTED JUDGMENT
FOR BONELLI AND AGAINST THE STATE OF ARIZONA.  THE ARIZONA COURT OF
APPEALS, THE STATE'S INTERMEDIATE APPELLATE COURT, AFFIRMED, UPHOLDING
BONELLI'S CONTENTION THAT IF THE CHANGES IN THE RIVER WERE ACCRETIVE,
THE SURFACED LAND BELONGED TO BONELLI, AS A RIPARIAN OWNER, AND IF THE
CHANGE WERE AVULSIVE, THE LAND NONETHELESS BELONGED TO BONELLI UNDER
THE DOCTRINE OF RE-EMERGENCE.  /3/ 

THE ARIZONA SUPREME COURT REVERSED, /4/  HOLDING THAT UNDER THE
EQUAL-FOOTING DOCTRINE AND THE SUBMERGED LANDS ACT, ARIZONA HOLDS TITLE
TO THE BEDS OF ALL NAVIGABLE WATERS WITHIN ITS BORDERS AND THUS TO THE
SUBJECT LAND AS A RESULT OF THE GRADUAL EASTWARD MOVEMENT OF THE
RIVER.  THE ARIZONA SUPREME COURT FOUND THAT, BECAUSE THE FEDERAL
RECHANNELIZATION PROJECT WAS AN "ENGINEERING RELOCATION OF THE WATERS
OF THE RIVER BY ARTIFICIAL MEANS," IT WAS, UNDER STATE LAW, AN AVULSIVE
CHANGE, WHICH DID NOT DIVEST THE STATE OF ITS TITLE TO THE EXPOSED LAND
WHICH HAD FORMERLY BEEN PART OF THE RIVERBED.  THE COURT DENIED A
REHEARING AND, IN A SUPPLEMENTAL OPINION, CLARIFIED THE EXTENT OF THE
DRY LAND OWNED BY THE STATE.  /5/  IT HELD THAT THE HIGH-WATER MARK OF
THE RIVER, TO WHICH THE STATE'S OWNERSHIP EXTENDS, WAS FIXED BY THE
NATURAL STATE OF THE RIVER AS IT EXISTED IN 1938, BEFORE THE OPERATION
OF HOOVER DAM.  /6/  WE GRANTED CERTIORARI, 410 U.S. 908 (1973).  WE
HOLD THAT THE OWNERSHIP OF THE SUBJECT LAND IS GOVERNED BY FEDERAL LAW,
AND THAT THE LAND SURFACED BY THE NARROWING OF THE RIVER CHANNEL
BELONGS, NOT TO THE STATE AS OWNER OF THE RIVERBED, BUT TO BONELLI AS
RIPARIAN OWNER.  WE NEED NOT, THEREFORE, REACH THE QUESTION OF WHETHER
THE ARIZONA SUPREME COURT PROPERLY DETERMINED THE AVERAGE HIGH-WATER
MARK OF THE RIVER. 

        I 

THE FIRST ISSUE WE MUST DECIDE IS WHETHER STATE OR FEDERAL LAW
GOVERNS THIS CONTROVERSY.  THE STATE OF ARIZONA CLAIMS TITLE TO THE
SUBJECT LAND BY VIRTUE OF THE EQUAL-FOOTING DOCTRINE /7/  AND THE
SUBMERGED LANDS ACT, /8/  THE BASIC PRINCIPLES OF WHICH ARE AS
FOLLOWS.  WHEN THE ORIGINAL COLONIES RATIFIED THE CONSTITUTION, THEY
SUCCEEDED TO THE CROWN'S TITLE AND INTEREST IN THE BEDS OF NAVIGABLE
WATERS WITHIN THEIR RESPECTIVE BORDERS.  AS NEW STATES WERE FORGED OUT
OF THE FEDERAL TERRITORIES AFTER THE FORMATION OF THE UNION, THEY WERE
"ADMITTED (WITH) THE SAME RIGHTS, SOVEREIGNTY AND JURISDICTION . . . AS
THE ORIGINAL STATES POSSESS WITHIN THEIR RESPECTIVE BORDERS."  MUMFORD
V. WARDWELL, 6 WALL.  423, 436 (1867).  ACCORDINGLY, TITLE TO LANDS
BENEATH NAVIGABLE WATERS PASSED FROM THE FEDERAL GOVERNMENT TO THE NEW
STATES, UPON THEIR ADMISSION TO THE UNION, UNDER THE EQUAL-FOOTING
DOCTRINE.  SEE, E.G., POLLARD'S LESSEE V. HAGAN, 3 HOW.  212 (1845);
SHIVELY V. BOWLBY, 152 U.S. 1 (1894); WEBER V. BOARD OF HARBOR COMM'RS,
18 WALL.  57, 65 - 66 (1873). 

IN ORDER FOR THE STATES TO GUARANTEE FULL PUBLIC ENJOYMENT OF THEIR
NAVIGABLE WATERCOURSES, /9/  IT HAS BEEN HELD THAT THEIR TITLE TO THE
BED OF A NAVIGABLE RIVER MECHANICALLY FOLLOWS THE RIVER'S GRADUAL
CHANGES IN COURSE.  SEE OKLAHOMA V. TEXAS, 268 U.S. 252 (1925).  THUS,
WHERE PORTIONS OF A RIPARIAN OWNER'S LAND ARE ENCROACHED UPON BY A
NAVIGABLE STREAM, UNDER FEDERAL LAW, THE STATE SUCCEEDS TO TITLE IN THE
BED OF THE RIVER TO ITS NEW HIGH-WATER MARK. 

THE SUBMERGED LANDS ACT OF 1953 DID NOT DISTURB THESE DOCTRINES OR
THEIR INHERENT LIMITATIONS.  THE ACT MERELY CONFIRMED THE STATES'  PRE
EXISTING RIGHTS IN THE BEDS OF THE NAVIGABLE WATERWAYS WITHIN THEIR
BOUNDARIES BY, IN EFFECT, QUITCLAIMING ALL FEDERAL CLAIMS THERETO. 
AND, CONSONANT WITH THE ABOVE-DESCRIBED COMMON-LAW DOCTRINE CONCERNING
TITLE TO THE BED OF A RIVER THAT HAS SHIFTED COURSE, THE SUBMERGED
LANDS ACT QUITCLAIMS ALL FEDERAL RIGHTS TO TITLE TO LANDS BENEATH THE
NAVIGABLE STREAMS, AS "HEREAFTER MODIFIED BY ACCRETION, EROSION, AND
RELICTION."  43 U.S.C. 1301(A)(1). 

THE STATE OF ARIZONA ASSERTS TITLE TO THE SUBJECT LAND ON THE BASIS
OF THE FOLLOWING APPLICATION OF THESE PRINCIPLES.  WHEN ARIZONA
ACHIEVED STATEHOOD IN 1912, IT ASSUMED TITLE TO THE LAND BENEATH THE
STREAM OF THE COLORADO RIVER, BY VIRTUE OF THE EQUAL-FOOTING DOCTRINE. 
/10/  IT SUBSEQUENTLY ACQUIRED TITLE TO THE SUBJECT LAND WHEN IT WAS
SUBMERGED BY THE RIVER'S EASTWARD MOVEMENT.  THE STATE ASSERTS THAT
ONCE HAVING ACQUIRED TITLE, IT WAS NOT DIVESTED OF ITS PROPRIETARY
INTEREST IN THE LAND BY THE SUBSEQUENT WITHDRAWAL OF THE WATER DUE TO
THE RECHANNELING OF THE RIVER. 

HAVING CONCLUDED THAT TITLE TO THE SUBJECT LAND WAS THUS VESTED IN
THE STATE AS A MATTER OF SETTLED FEDERAL LAW, THE STATE COURTS
DETERMINED THAT LOCAL LAW CONTROLLED WHETHER PETITIONER, AS A RIPARIAN
OWNER, HAD ANY INTEREST IN THE LAND THEREAFTER.  AS THE COURT SAID IN
ARKANSAS V. TENNESSEE, 246 U.S. 158, 176 (1918), "(IT IS FOR THE STATES
TO ESTABLISH FOR THEMSELVES SUCH RULES OF PROPERTY AS THEY DEEM
EXPEDIENT WITH RESPECT TO THE NAVIGABLE WATERS WITHIN THEIR BORDERS AND
THE RIPARIAN LANDS ADJACENT TO THEM.  . . ." 

WE CONTINUE TO ADHERE TO THE PRINCIPLE THAT IT IS LEFT TO THE STATES
TO DETERMINE THE RIGHTS OF RIPARIAN OWNERS IN THE BEDS OF NAVIGABLE
STREAMS WHICH, UNDER FEDERAL LAW, BELONG TO THE STATE.  BUT THIS
DOCTRINE DOES NOT REQUIRE THAT STATE LAW GOVERN THE INSTANT
CONTROVERSY.  THE ISSUE BEFORE US IS NOT WHAT RIGHTS THE STATE HAS
ACCORDED PRIVATE OWNERS IN LANDS WHICH THE STATE HOLDS AS SOVEREIGN;
BUT, RATHER, HOW FAR THE STATE'S SOVEREIGN RIGHT EXTENDS UNDER THE
EQUAL-FOOTING DOCTRINE AND THE SUBMERGED LANDS ACT--WHETHER THE STATE
RETAINS TITLE TO THE LANDS FORMERLY BENEATH THE STREAM OF THE COLORADO
RIVER OR WHETHER THAT TITLE IS DEFEASIBLE BY THE WITHDRAWAL OF THOSE
WATERS.  AS THIS COURT OBSERVED IN BORAX, LTD. V. LOS ANGELES, 296 U.S.
10, 22 (1935): "THE QUESTION AS TO THE EXTENT OF THIS FEDERAL GRANT,
THAT IS, AS TO THE LIMIT OF THE LAND CONVEYED, . . .IS NECESSARILY A
FEDERAL QUESTION.  . . . (IT INVOLVES THE ASCERTAINMENT OF THE
ESSENTIAL BASIS OF A RIGHT ASSERTED UNDER FEDERAL LAW." 

ARKANSAS V. TENNESSEE, SUPRA, AND THE CASES CITED THEREIN ARE NOT TO
THE CONTRARY.  IN ARKANSAS V. TENNESSEE, FOR EXAMPLE, WE HELD THAT
FEDERAL LAW GOVERNED THE QUESTION OF HOW FAR INTO THE RIVER CHANNEL A
STATE HELD TITLE.  ONLY THEN DID THIS COURT TURN TO STATE LAW TO
DETERMINE WHETHER RIPARIAN OWNERS HAD BEEN ACCORDED ANY RIGHTS IN THAT
LAND.  BUT EVEN THE STATE'S DISPOSITION OF ITS SUBMERGED LAND VIS-A-VIS
PRIVATE OWNERS WAS TO BE "IN EACH CASE LIMITED BY THE INTERSTATE
BOUNDARY," A MATTER DETERMINED BY FEDERAL LAW.  246 U.S., AT 176. 
SIMILARLY, IN SHIVELY V. BOWLBY, 152 U.S. 1 (1894), THE COURT HELD THAT
UNDER SETTLED FEDERAL LAW, THE TIDELANDS THERE AT ISSUE BELONGED TO THE
STATE IN ITS SOVEREIGN CAPACITY; HENCE WHETHER THE STATE HAD ACCORDED
RIPARIAN OWNERS ANY INTERESTS IN THE TIDELANDS PROPERLY REMAINED A
MATTER OF LOCAL LAW; "IF (THE STATES) CHOOSE TO RESIGN TO THE RIPARIAN
PROPRIETOR RIGHTS WHICH PROPERLY BELONG TO THEM IN THEIR SOVEREIGN
CAPACITY, IT IS NOT FOR OTHERS TO RAISE OBJECTIONS."  ID., AT 43.  IN
BARNEY V. KEOKUK, 94 U.S. 324, 338 (1877), THE COURT LEFT IT TO THE
STATES TO DECIDE WHETHER TO ACCORD TITLE TO THE LAND BENEATH NON-TIDAL
NAVIGABLE WATERS TO RIPARIAN OWNERS AFTER RECOGNIZING THAT UNDER
FEDERAL LAW SUCH LANDS BELONG TO THE STATES.  SEE ALSO SCOTT V. LATTIG,
227 U.S. 229, 242 (1913). 

THE PRESENT CASE, HOWEVER, DOES NOT INVOLVE A QUESTION OF THE
DISPOSITION OF LANDS, THE TITLE TO WHICH IS VESTED IN THE STATE AS A
MATTER OF SETTLED FEDERAL LAW.  THE VERY QUESTION TO BE DECIDED IS THE
NATURE AND EXTENT OF THE TITLE TO THE BED OF A NAVIGABLE STREAM HELD BY
THE STATE UNDER THE EQUAL-FOOTING DOCTRINE AND THE SUBMERGED LANDS
ACT.  IN THIS CASE, THE QUESTION OF TITLE AS BETWEEN THE STATE AND A
PRIVATE LANDOWNER NECESSARILY DEPENDS ON A CONSTRUCTION OF A "RIGHT
ASSERTED UNDER FEDERAL LAW."  /11/

        II 

WE CANNOT ACCEPT THE STATE'S ARGUMENT THAT THE EQUAL-FOOTING
DOCTRINE SUPPORTS ITS CLAIM TO THE DISPUTED LAND.  HISTORICALLY, TITLE
TO THE BEDS BENEATH NAVIGABLE WATERS IS HELD BY THE SOVEREIGN, BARNEY
V. KEOKUK, SUPRA, AT 338, AS A PUBLIC TRUST FOR THE PROTECTION OF
NAVIGATION AND RELATED PURPOSES. 

"(TITLE TO THE . . . LANDS UNDER WATER . . . ENURES TO THE STATE
WITHIN WHICH THEY ARE SITUATED . . . . SUCH TITLE . . . (IS) HELD IN
TRUST FOR THE PUBLIC PURPOSES OF NAVIGATION AND FISHERY."  HARDIN V.
JORDAN, 140 U.S. 371, 381 (1891).  SEE UNITED STATES V. KANSAS CITY
LIFE INS. CO., 339 U.S. 799, 808 (1950).  AS THIS COURT OBSERVED IN AN
EARLIER FEDERAL WATER LAW CASE: 

"SUCH WATERS . . . ARE INCAPABLE OF ORDINARY AND PRIVATE OCCUPATION,
CULTIVATION AND IMPROVEMENT; AND THEIR NATURAL AND PRIMARY USES ARE
PUBLIC IN THEIR NATURE, FOR HIGHWAYS OF NAVIGATION AND COMMERCE,
DOMESTIC AND FOREIGN, AND FOR THE PURPOSE OF FISHING . . . ."  SHIVELY
V. BOWLBY, SUPRA, AT 11. 

THE STATE'S TITLE IS TO THE "(RIVERBED AS A BED,"  /12/  AND THE
STATE OF ARIZONA WILL CONTINUE TO HOLD TITLE TO THE BED BENEATH THE
COLORADO RIVER TO ITS PRESENT HIGH-WATER MARK.  BUT THE EXPOSED LAND
INVOLVED HERE IS NO LONGER, AS DESCRIBED IN SHIVELY "INCAPABLE OF
ORDINARY AND PRIVATE OCCUPATION . . . (WHOSE) PRIMARY USES ARE PUBLIC
IN THEIR NATURE, FOR HIGHWAYS OF NAVIGATION . . . ."  /13/  THE EQUAL
FOOTING DOCTRINE WAS NEVER INTENDED TO PROVIDE A STATE WITH A WINDFALL
OF THOUSANDS OF ACRES OF DRY LAND EXPOSED WHEN THE MAIN THREAD OF A
NAVIGABLE STREAM IS CHANGED.  /14/  IT WOULD BE AT ODDS WITH THE
FUNDAMENTAL PURPOSE OF THE ORIGINAL GRANT TO THE STATES TO AFFORD A
STATE TITLE TO LAND FROM WHICH A NAVIGABLE STREAM HAD RECEDED UNLESS
THE LAND WAS EXPOSED AS PART OF A NAVIGATIONAL OR RELATED PUBLIC
PROJECT OF WHICH IT WAS A NECESSARY AND INTEGRAL PART OR UNLESS, OF
COURSE, THE ARTIFICIAL ACCRETION WAS SOMEHOW CAUSED BY THE UPLAND OWNER
HIMSELF.  THERE HAS BEEN NO SHOWING THAT THE RECHANNELIZATION PROJECT
WAS UNDERTAKEN TO GIVE THE STATE TITLE TO THE SUBJECT LANDS FOR THE
PROTECTION OF NAVIGATION OR RELATED PUBLIC GOALS.  /15/  INDEED, THE
STATE OF ARIZONA DID NOT PARTICIPATE IN THE RECHANNELIZATION OF THE
COLORADO RIVER, ALTHOUGH IT HAD IMPLICITLY ASSENTED TO THE PROJECT. 
/16/ 

THE ADVANCE OF THE COLORADO'S WATERS DIVESTED THE TITLE OF THE
UPLAND OWNERS IN FAVOR OF THE STATE IN ORDER TO GUARANTEE FULL PUBLIC
ENJOYMENT OF THE WATERCOURSE.  BUT, WHEN THE WATER RECEDED FROM THE
LAND, THERE WAS NO LONGER A PUBLIC BENEFIT TO BE PROTECTED;
CONSEQUENTLY, THE STATE, AS SOVEREIGN, HAS NO NEED FOR TITLE.  THAT THE
CAUSE OF THE RECESSION WAS ARTIFICIAL, OR THAT THE RATE WAS
PERCEPTIBLE, SHOULD BE OF NO EFFECT. 

NOR DOES THE SUBMERGED LANDS ACT PROVIDE A BASIS FOR THE STATE'S
CLAIM TO THE SUBJECT LANDS.  THE ARIZONA SUPREME COURT INCORRECTLY
CONSTRUED THIS ACT AS A GRANT BY CONGRESS TO THE STATES OF LANDS
"FORMERLY . . . BENEATH NAVIGABLE WATERS."  /17/  THE ACT DID NOT
ABROGATE THE FEDERAL LAW OF ACCRETION, BUT DEFINED LANDS BENEATH
NAVIGABLE WATERS AS BEING THOSE COVERED BY STREAMS AS "HEREAFTER
MODIFIED BY ACCRETION, EROSION, AND RELICTION."  /18/  CONTRARY TO THE
IMPLICATION RAISED BY THE ARIZONA SUPREME COURT, THE ACT CREATES NO NEW
RIGHTS FOR THE STATES IN THE BEDS OF THEIR INLAND WATERWAYS.  THE ACT
IS NOT A GRANT OF TITLE TO LAND BUT ONLY A QUITCLAIM OF FEDERAL
PROPRIETARY RIGHTS IN THE BEDS OF NAVIGABLE WATERWAYS.  /19/  THE ACT
SPECIFICALLY EXCEPTS FROM ITS SCOPE LANDS LAWFULLY CONVEYED OR PATENTED
BY THE UNITED STATES.  /20/  SINCE THE ACT DOES NOT EXTEND TO THE
STATES ANY INTEREST BEYOND THOSE AFFORDED BY THE EQUAL-FOOTING
DOCTRINE, THE STATE CAN NO MORE BASE ITS CLAIM TO LANDS UNNECESSARY TO
A NAVIGATIONAL PURPOSE ON THE SUBMERGED LANDS ACT THAN ON THAT
DOCTRINE. 

        III 

THE QUESTION REMAINS AS TO WHO OWNS THE SUBJECT LAND UNDER THE
APPLICABLE FEDERAL COMMON LAW.  IT IS, OF COURSE, CLEAR THAT THE STATE
OF ARIZONA DID HOLD TITLE TO THE SUBJECT PROPERTY BEFORE THE WATERS OF
THE RIVER RECEDED.  BOTH THE STATE AND THE SOLICITOR GENERAL OF THE
UNITED STATES AS AMICUS CURIAE, URGE THAT THE FEDERAL COMMON-LAW
DOCTRINE OF AVULSION IS APPLICABLE AND THUS THAT THE STATE REMAINS
HOLDER OF TITLE IN THE FORMER RIVERBED.  BONELLI, THE ONLY PRIVATE
CLAIMANT, ARGUES THAT THE NARROWING OF THE RIVER COURSE SHOULD PROPERLY
BE CHARACTERIZED AS AN ARTIFICIAL ACCRETION, HENCE THAT THE DISPUTED
LAND, WHICH HAD ORIGINALLY BEEN LOST FROM THE BONELLI PARCEL TO THE
RIVER BY EROSION, SHOULD ONCE AGAIN BELONG TO IT AS THE RIPARIAN
OWNER. 

FEDERAL LAW RECOGNIZES THE DOCTRINE OF ACCRETION WHEREBY THE
"GRANTEE OF LAND BOUNDED BY A BODY OF NAVIGABLE WATER ACQUIRES A RIGHT
TO ANY . . . GRADUAL ACCRETION FORMED ALONG THE SHORE."  HUGHES V.
WASHINGTON, 389 U.S. 290, 293 (1967); ACCORD, JONES V. JOHNSTON, 18
HOW.  150, 156 (1856).  WHEN THERE IS A GRADUAL AND IMPERCEPTIBLE
ACCUMULATION OF LAND ON A NAVIGABLE RIVERBANK, BY WAY OF ALLUVION OR
RELICTION, THE RIPARIAN OWNER IS THE BENEFICIARY OF TITLE TO THE
SURFACED LAND: 

     "IT IS THE ESTABLISHED RULE THAT A RIPARIAN PROPRIETOR OF LAND

  BOUNDED BY A STREAM, THE BANKS OF WHICH ARE CHANGED BY THE

  GRADUAL AND IMPERCEPTIBLE PROCESS OF ACCRETION OR EROSION,

  CONTINUES TO HOLD TO THE STREAM AS HIS BOUNDARY; IF HIS LAND IS

  INCREASED HE IS NOT ACCOUNTABLE FOR THE GAIN, AND IF IT IS

DIMINISHED HE HAS NO RECOURSE FOR THE LOSS."  PHILADELPHIA CO. V.

  STIMSON, 223 U.S. 605, 624 (1912). 

THERE ARE A NUMBER OF INTERRELATED REASONS FOR THE APPLICATION OF
THE DOCTRINE OF ACCRETION.  FIRST, WHERE LANDS ARE BOUNDED BY WATER, IT
MAY WELL BE REGARDED AS THE EXPECTANCY OF THE RIPARIAN OWNERS THAT THEY
SHOULD CONTINUE TO BE SO BOUNDED.  /21/  SECOND, THE QUALITY OF BEING
RIPARIAN, ESPECIALLY TO NAVIGABLE WATER, MAY BE THE LAND'S "MOST
VALUABLE FEATURE" AND IS PART AND PARCEL OF THE OWNERSHIP OF THE LAND
ITSELF.  HUGHES V. WASHINGTON, SUPRA, AT 293; YATES V. MILWAUKEE, 10
WALL.  497, 504 (1871).  RIPARIANNESS ALSO ENCOMPASSES THE VESTED RIGHT
TO FUTURE ALLUVION, WHICH IS AN "ESSENTIAL ATTRIBUTE OF THE ORIGINAL
PROPERTY."  COUNTY OF ST. CLAIR V. LOVINGSTON, 23 WALL.  46, 68
(1874).  BY REQUIRING THAT THE UPLAND OWNER SUFFER THE BURDEN OF
EROSION AND BY GIVING HIM THE BENEFIT OF ACCRETIONS, RIPARIANNESS IS
MAINTAINED.  FINALLY, THERE IS A COMPENSATION THEORY AT WORK.  RIPARIAN
LAND IS AT THE MERCY OF THE WANDERINGS OF THE RIVER.  SINCE A RIPARIAN
OWNER IS SUBJECT TO LOSING LAND BY EROSION BEYOND HIS CONTROL, HE
SHOULD BENEFIT FROM ANY ADDITION TO HIS LANDS BY THE ACCRETIONS THERETO
WHICH ARE EQUALLY BEYOND HIS CONTROL.  IBID.  THE EFFECT OF THE
DOCTRINE OF ACCRETION IS TO GIVE THE RIPARIAN OWNER A "'"FEE,
DETERMINABLE UPON THE OCCUPANCY OF HIS SOIL BY THE RIVER," AND (TO
AFFORD) THE STATE (A TITLE) TO THE RIVER BED (WHICH IS) LIKEWISE A . .
. "QUALIFIED" FEE, "DETERMINABLE IN FAVOR OF THE RIPARIANS UPON THE
ABANDONMENT OF THE BED BY THE RIVER."'"  /22/ 

THE DOCTRINE OF ACCRETION APPLIES TO CHANGES IN THE RIVER COURSE DUE
TO ARTIFICIAL AS WELL AS NATURAL CAUSES.  COUNTY OF ST. CLAIR V.
LOVINGSTON, SUPRA, AT 64 - 69; UNITED STATES V. CLARIDGE, 416 F.2D 933
(CA9 1969), CERT. DENIED, 397 U.S. 961 (1970) (CHANGES IN THE COLORADO
RIVER'S COURSE, CAUSED BY THE CONSTRUCTION OF HOOVER DAM, ARE
ACCRETIVE).  WHERE ACCRETIONS TO RIPARIAN LAND ARE CAUSED BY CONDITIONS
CREATED BY STRANGERS TO THE LAND, THE UPLAND OWNER REMAINS THE
BENEFICIARY THEREOF.  /23/ 

BUT THE FEDERAL LAW IS OTHERWISE WHERE "A STREAM SUDDENLY AND
PERCEPTIBLY ABANDONS ITS OLD CHANNEL."  PHILADELPHIA CO. V. STIMSON,
223 U.S., AT 624 - 625.  SUCH AN AVULSIVE CHANGE DOES NOT AFFECT TITLE
AND THE BOUNDARY ESTABLISHED BY THE FORMER RIVER STREAM REMAINS AT THAT
LINE, EVEN IF THE RESULT IS TO CUT OFF A LANDOWNER'S RIPARIAN RIGHTS. 
ST. LOUIS V. RUTZ, 138 U.S. 226, 245 (1891).  THE RATIONALE FOR THE
DOCTRINE OF AVULSION IS A NEED TO MITIGATE THE HARDSHIP THAT A SHIFT IN
TITLE CAUSED BY A SUDDEN MOVEMENT OF THE RIVER WOULD CAUSE THE ABUTTING
LANDOWNERS WERE THE ACCRETION PRINCIPLE TO BE APPLIED.  AS THIS COURT,
QUOTING FROM 8 OP. ATTY. GEN. 175, OBSERVED IN NEBRASKA V. IOWA, 143
U.S. 359, 362 (1892)" 

"'(WHEN IN) DESERTING ITS ORIGINAL BED, THE RIVER FORCES FOR ITSELF
A NEW CHANNEL IN ANOTHER DIRECTION, THEN THE NATION, THROUGH WHOSE
TERRITORY THE RIVER THUS BREAKS ITS WAY, SUFFERS INJURY BY THE LOSS OF
TERRITORY GREATER THAN THE BENEFIT OF RETAINING THE NATURAL RIVER
BOUNDARY, AND THAT BOUNDARY REMAINS IN THE MIDDLE OF THE DESERTED RIVER
BED." 

THE ARIZONA SUPREME COURT HELD THAT BECAUSE THE RECHANNELING OF THE
COLORADO RIVER WAS AN "ENGINEERING RELOCATION OF THE WATERS OF THE
RIVER BY ARTIFICIAL MEANS," IT WAS, UNDER STATE LAW, AN AVULSION AND
DID NOT DIVEST THE STATE OF TITLE TO THE LAND FROM WHICH THE RIVER HAD
WITHDRAWN.  BUT FEDERAL LAW MUST BE APPLIED WITH A VIEW TOWARD THE
LIMITED NATURE OF THE SOVEREIGN'S RIGHTS IN THE RIVERBED, AND AN
ANALYSIS OF THE INTERESTS OF THE STATE AND BONELLI, IN LIGHT OF THE
RATIONALES FOR THE FEDERAL COMMON-LAW DOCTRINES OF ACCRETION AND
AVULSION, COMPELS THE CONCLUSION THAT, AS BETWEEN THE STATE, AS OWNER
OF THE RIVERBED, AND BONELLI, AS A RIPARIAN OWNER, THE SURFACING OF THE
SUBJECT LAND SHOULD BE TREATED AS ACCRETION; HENCE TITLE TO THE
DISPUTED LAND SHOULD BE VESTED IN BONELLI. 

THE RATIONALE FOR THE APPLICATION OF THE DOCTRINE OF AVULSION IS NOT
APPLICABLE TO THIS DISPUTE BECAUSE OF THE LIMITED INTERESTS OF THE
STATE IN THE SUBJECT PROPERTY.  THE FEDERAL GOVERNMENT, WHICH HOLDS A
PARAMOUNT NAVIGABLE SERVITUDE IN THE RIVER, /24/  DETERMINED THAT IT
WAS TOO WIDE AND SHALLOW TO PERMIT NAVIGATION IN THE AREA OF THE
SUBJECT LAND, AND THAT THE RIVER THEREFORE NEEDED TO BE DEEPENED AND
RECHANNELED.  THE RESULTING CHANGES IN THE RIVER'S THREAD ACTUALLY
ENHANCED THE STATE'S INTEREST IN THE NAVIGABILITY OF THE RIVER.  THE
STATE'S ACQUISITION OF THE EXPOSED LAND HERE COULD ONLY BE A WINDFALL,
SINCE UNNECESSARY TO THE STATE'S PURPOSE IN HOLDING TITLE TO THE BEDS
OF THE NAVIGABLE STREAMS WITHIN ITS BORDERS.  /25/  ACCORDINGLY, THE
NARROWING OF THE RIVER AND VESTING OF TITLE TO THE SURFACED LAND IN
RIPARIAN OWNERS DOES NOT DETRACT FROM THE STATE'S LEGITIMATE INTEREST
IN TITLE TO THE RIVERBED, /26/  SO AS TO REQUIRE MITIGATION OF THE
ACCRETION PRINCIPLE BY APPLICATION OF THE DOCTRINE OF AVULSION. 

THE POLICIES BEHIND THE DOCTRINE OF ACCRETION ARE, HOWEVER, FULLY
APPLICABLE.  THAT DOCTRINE GUARANTEES THE RIPARIAN CHARACTER OF LAND BY
AUTOMATICALLY GRANTING TO A RIPARIAN OWNER TITLE TO LANDS WHICH FORM
BETWEEN HIS HOLDINGS AND THE RIVER AND THUS THREATEN TO DESTROY THAT
VALUABLE FEATURE OF HIS PROPERTY.  THE RIPARIAN OWNER IS AT THE MERCY,
NOT ONLY OF THE NATURAL FORCES WHICH CREATE SUCH INTERVENING LANDS, BUT
ALSO, BECAUSE OF THE NAVIGATIONAL SERVITUDE, OF GOVERNMENTAL FORCES
WHICH MAY SIMILARLY AFFECT THE RIPARIAN QUALITY OF HIS ESTATE. 
ACCORDINGLY, WHERE LAND CAST UP IN THE FEDERAL GOVERNMENT'S EXERCISE OF
THE SERVITUDE IS NOT RELATED TO FURTHERING THE NAVIGATIONAL OR RELATED
PUBLIC INTERESTS, THE ACCRETION DOCTRINE SHOULD PROVIDE A DISPOSITION
OF THE LAND AS BETWEEN THE RIPARIAN OWNER AND THE STATE.  SEE
MICHAELSON V. SILVER BEACH ASSN., 342 MASS. 251, 173 N.E.2D 273
(1961). 

SIMILARLY, RIPARIAN LANDS MAY SUFFER NONCOMPENSABLE LOSSES OR BE
DEPRIVED OF THEIR RIPARIAN CHARACTER ALTOGETHER BY THE STATE OR FEDERAL
GOVERNMENT IN THE EXERCISE OF THE NAVIGATIONAL SERVITUDE.  IN
COMPENSATION FOR SUCH LOSSES, LAND SURFACED IN THE COURSE OF SUCH
GOVERNMENTAL ACTIVITY SHOULD INURE TO THE RIPARIAN OWNER WHERE NOT
NECESSARY TO THE NAVIGATIONAL PROJECT OR ITS PURPOSE.  IN THE CASE
BEFORE US, ALL OF THE SUBJECT LAND, WHICH COMPOSED A SUBSTANTIAL
PORTION OF BONELLI'S PARCEL, WAS LOST TO THE STATE BY EROSION TO SERVE
THE PUBLIC INTEREST IN THE NAVIGABILITY OF THE RIVER.  NOW THAT THE
LAND HAS RESURFACED IN THE PROCESS OF RECHANNELIZATION, IT SHOULD
RETURN TO THE ESTATE OF THE RIPARIAN OWNER.  /27/ 

"NO OTHER RULE CAN BE APPLIED ON JUST PRINCIPLES.  EVERY PROPRIETOR
WHOSE LAND IS THUS BOUNDED (BY A NAVIGABLE STREAM), IS SUBJECT TO LOSS,
BY THE SAME MEANS WHICH MAY ADD TO HIS TERRITORY:  AND AS HE IS WITHOUT
REMEDY FOR HIS LOSS, IN THIS WAY, HE CANNOT BE HELD ACCOUNTABLE FOR HIS
GAIN."  NEW ORLEANS V. UNITED STATES, 10 PET. 662, 717 (1836). 

FINALLY, RECOGNITION OF THE STATE'S CLAIM TO THE SUBJECT LAND WOULD
RAISE A SERIOUS CONSTITUTIONAL ISSUE AS TO WHETHER THE STATE'S
ASSERTION OF TITLE IS A TAKING WITHOUT COMPENSATION, A QUESTION WHICH
WE FIND UNNECESSARY TO DECIDE ON OUR VIEW OF THE CASE.  AS MR. JUSTICE
STEWART WARNED IN HUGHES V. WASHINGTON, 389 U.S., AT 298 (CONCURRING
OPINION): 

"ALTHOUGH THE STATE IN THIS CASE MADE NO ATTEMPT TO TAKE THE
ACCRETED LANDS BY EMINENT DOMAIN, IT ACHIEVED THE SAME RESULT BY
EFFECTING A RETROACTIVE TRANSFORMATION OF PRIVATE INTO PUBLIC PROPERTY-
WITHOUT PAYING FOR THE PRIVILEGE OF DOING SO. . . . (THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT FORBIDS SUCH CONFISCATION BY A
STATE, NO LESS THROUGH ITS COURTS THAN THROUGH ITS LEGISLATURE, AND NO
LESS WHEN A TAKING IS UNINTENDED THAN WHEN IT IS DELIBERATE.  . . ." 

IN THE EXERCISE OF ITS NAVIGATIONAL SERVITUDE, THE STATE OR FEDERAL
GOVERNMENT MAY DECREASE THE VALUE OF RIPARIAN PROPERTY WITHOUT
COMPENSATION BECAUSE THE PROPERTY IS HELD SUBJECT TO THE EXERCISE OF
THAT SERVITUDE.  THE GOVERNMENT MAY, WITHOUT PAYING COMPENSATION,
DEPRIVE A RIPARIAN OWNER OF HIS COMMON-LAW RIGHT TO USE FLOWING WATER,
ST. ANTHONYS FALLS WATER POWER CO. V. ST. PAUL WATER COMM'RS, 168 U.S.
349 (1897), OR TO BUILD A WHARF OVER THE WATER, SHIVELY V. BOWLBY, 152
U.S. 1 (1894).  WE HAVE HELD THAT THE STATE MAY DEPRIVE THE OWNER OF
THE RIPARIAN CHARACTER OF HIS PROPERTY IN THE EXERCISE OF ITS
NAVIGATIONAL SERVITUDE.  UNITED STATES V. RANDS, 389 U.S. 121 (1967). 
BUT THERE IS NO CLAIM HERE BY THE STATE THAT DEPRIVING BONELLI OF THE
SUBJECT LAND IS NECESSARY TO ANY NAVIGATIONAL OR RELATED PURPOSE.  CF.
UNITED STATES V. RIVER ROUGE CO., 269 U.S. 411, 419 (1926); COLBERG,
INC. V. STATE, 67 CAL.2D 408, 432 P.2D 3 (1967), CERT. DENIED, 390 U.S.
949 (1968).  MOREOVER, WHAT IS INVOLVED IN THIS CASE IS NOT JUST THE
DIMINUTION OR ELIMINATION OF RIPARIAN RIGHTS, BUT THE STATE'S ATTEMPT
TO COMPLETELY DIVEST ALL OF BONELLI'S TITLE AND INTEREST IN THE SUBJECT
LAND.  SEE YATES V. MILWAUKEE, 10 WALL., AT 504. 

        IV 

WE HOLD THAT TITLE TO THE SUBJECT LAND, WHICH WAS EXPOSED BY THE
FEDERAL RECHANNELIZATION OF THE COLORADO RIVER, IS VESTED IN PETITIONER
BONELLI CATTLE CO. THE JUDGMENT OF THE SUPREME COURT OF ARIZONA IS
REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  THE FEDERAL PATENT TO THE SANTA FE PACIFIC RAILROAD CONVEYED A
PARCEL OF LAND IN TOWNSHIP 19 NORTH OF RANGE 22 WEST, DESCRIBED AS
FOLLOWS: 

"THE LOTS ONE, TWO, THREE, FOUR, FIVE AND SIX, THE SOUTH HALF OF THE
NORTHEAST QUARTER, THE SOUTH HALF OF THE NORTHWEST QUARTER, THE
NORTHEAST QUARTER OF THE SOUTHWEST QUARTER, AND THE SOUTHEAST QUARTER
OF SECTION THREE, CONTAINING FIVE HUNDRED EIGHTY-NINE AND FORTY
HUNDREDTHS ACRES." 

THE MAP OF THE AREA, APPROVED BY THE SURVEYOR GENERAL, INDICATES
THAT, AS OF 1906, LOTS 5 AND 6 OF THE SANTA FE PARCEL ABUTTED THE
COLORADO RIVER.  PETITIONER BONELLI CATTLE CO. WAS DEEDED A PARCEL OF
LAND CONSTITUTING ROUGHLY THE EASTERN HALF OF THE ORIGINAL SANTA FE
GRANT.  THE BONELLI DEED DESCRIBED THE SUBJECT PROPERTY AS THE "EAST)
1/2 (OF) SECTION 3, EXCEPTING LOT 2 THEREOF." 

/2/  THE RECHANNELIZATION ALSO SURFACED A SMALL USABLE POCKET OF
LAND ON THE WEST BANK OF THE COLORADO RIVER WHICH WAS PART OF THE
BONELLI PARCEL.  THIS LAND IS NOT IN ARIZONA BY VIRTUE OF THE BOUNDARY
COMPACT BETWEEN ARIZONA AND NEVADA, APPROVED BY CONGRESS, PUB. L. 87 -
50, 75 STAT. 93, AND HENCE IS NOT INVOLVED IN THE PRESENT CONTROVERSY. 

/3/  11 ARIZ. APP. 412, 464 P.2D 999 (1970). 

/4/  107 ARIZ. 465, 489 P.2D 699 (1971). 

/5/  108 ARIZ. 258, 495 P.2D 1312 (1972). 

/6/  BEFORE THE OPERATION OF HOOVER DAM, THE RIVER'S ANNUAL SPRING
FLOODS COVERED SUBSTANTIALLY MORE OF THE ADJACENT LAND THAN AT ANY TIME
THEREAFTER.  IT IS TO THE HIGH-WATER MARK OF THE RIVER AT THIS ANNUAL
FLOOD STAGE THAT THE STATE OF ARIZONA CLAIMS TITLE. 

/7/  SEE JOINT RES. NO. 8, TO ADMIT THE TERRITORIES OF NEW MEXICO
AND ARIZONA AS STATES INTO THE UNION ON AN EQUAL FOOTING WITH THE
ORIGINAL STATES, 37 STAT. 39. 

/8/  67 STAT. 29, 43 U.S.C. 1301 ET SEQ. 

/9/ SEE DISCUSSION, INFRA, AT 321 - 324. 

/10/  THE COLORADO RIVER HAS BEEN DETERMINED TO BE A NAVIGABLE
WATERWAY, ARIZONA V. CALIFORNIA, 283 U.S. 423 (1931), AND, ONCE FOUND
TO BE NAVIGABLE, IT REMAINS SO.  UNITED STATES V. APPALACHIAN ELECTRIC
POWER CO., 311 U.S. 377, 408 (1940).     /11/  PETITIONER BONELLI AND
THE SOLICITOR GENERAL OF THE UNITED STATES, AS AMICUS CURIAE, ASSERT
THAT THIS CASE SHOULD BE GOVERNED BY FEDERAL LAW FOR A DIFFERENT
REASON.  IN HUGHES V. WASHINGTON, 389 U.S. 290 (1967), THIS COURT HELD
THAT WHERE AN UPLAND PROPERTY OWNER TRACED ITS TITLE TO A PRE-STATEHOOD
FEDERAL PATENT, THE OWNER'S RIGHT TO ACCRETIONS IS A QUESTION OF
FEDERAL LAW.  ID., AT 292.  WE ARE HERE AGAIN CONCERNED WITH THE RIGHT
TO ACCRETIONS CONVEYED BY A PRE-STATEHOOD FEDERAL PATENT, BUT IT IS
UNCLEAR WHETHER, AT THE TIME OF SANTA FE PACIFIC'S PATENT, THE PORTION
OF THE LAND WHICH ULTIMATELY BECAME BONELLI'S PARCEL, WAS ACTUALLY
RIPARIAN.  BONELLI ARGUES THAT ITS REMOTE GRANTOR, THE SANTA FE PACIFIC
RAILROAD, WAS GIVEN A PATENT BY THE UNITED STATES WHICH AFFORDED IT THE
RIGHT TO RIPARIAN ACCRETIONS AS GOVERNED BY FEDERAL LAW, AND THAT IT
WAS EXPECTED THAT THE RIVER MIGHT WANDER WITHIN THE PARCEL OF LAND
MAKING PARTS THEREOF RIPARIAN WHICH WERE NOT SO AT THE TIME OF THE
PATENT.  PETITIONER ARGUES THAT ITS PREDECESSOR WAS THEREFORE ENTITLED
TO PASS ONTO HIS SUCCESSORS ALL THE RIGHTS HE HAD IN THE PROPERTY-
INCLUDING HIS RIPARIAN RIGHTS.  WE NEED NOT, HOWEVER, DECIDE WHETHER
HUGHES COMPELS THE APPLICATION OF FEDERAL LAW TO THE CONTROVERSY BEFORE
US, BECAUSE THE STATE'S CLAIM IN THIS CASE IS PREMISED ON A
CONSTRUCTION OF THE FEDERAL EQUAL-FOOTING DOCTRINE AND THE
CONGRESSIONALLY ENACTED SUBMERGED LANDS ACT. 

/12/  STATE V. GILL, 259 ALA. 177, 183, 66 SO.2D 141, 145 (1953). 
FOR A PERCEPTIVE DISCUSSION OF THE HISTORICAL ANTECEDENTS FOR THE
SOVEREIGN'S RIGHTS IN THE BEDS OF NAVIGABLE WATERWAYS AND OF THE
STATE'S MODERN INTERESTS IN THOSE LANDS, SEE LUNDQUIST, ARTIFICIAL
ADDITIONS TO RIPARIAN LAND:  EXTENDING THE DOCTRINE OF ACCRETION, 14
ARIZ. L. REV. 315 (1972). 

/13/  152 U.S., AT 11. 

/14/  THE SUPREME COURT OF ARIZONA RELIED ON THIS COURT'S DECISIONS
IN GOODTITLE V. KIBBE, 9 HOW.  471 (1850), AND POLLARD'S LESSEE V.
HAGAN, 3 HOW.  212 (1845), FOR THE PROPOSITION THAT A FEDERAL
RECHANNELING PROJECT COULD NOT DIMINISH THE EXTENT OF THE STATE'S
LANDHOLDINGS.  THOSE DECISIONS INVOLVED POST-STATEHOOD FEDERAL PATENTS
OF LAND COVERED BY NAVIGABLE WATERS AT THE TIME OF STATEHOOD.  THIS
COURT HELD ONLY THAT SINCE TITLE TO LANDS BENEATH NAVIGABLE WATERS WAS
VESTED IN ALABAMA AT STATEHOOD, THE FEDERAL GOVERNMENT DID NOT
THEREAFTER OWN THE SUBJECT LANDS, HENCE ITS ATTEMPTED CONVEYANCE WAS
VOID.  THE COURT DID NOT INTIMATE THAT THE OPERATION OF FEDERAL LAW
COULD NOT DIMINISH THE STATE'S TITLE TO LANDS FORMERLY BENEATH
NAVIGABLE WATERS. 

/15/  FOR A DISCUSSION OF THE NAVIGATIONAL-PURPOSE LIMITATION ON THE
STATE'S INTEREST IN THE LANDS BENEATH ITS WATERWAYS, SEE UNITED STATES
V. RIVER ROUGE CO., 269 U.S. 411, 419 (1926); COLBERG, INC. V. STATE,
67 CAL.2D 408, 416, 432 P.2D 3, 8 - 9 (1967), CERT. DENIED, 390 U.S.
949 (1968); MICHAELSON V. SILVER BEACH ASSN., 342 MASS. 251, 173 N.E.2D
273 (1961).  THE EXTENT OF THE STATE'S INTERESTS SHOULD NOT BE NARROWLY
CONSTRUED BECAUSE IT IS DENOMINATED A NAVIGATIONAL PURPOSE.  SEE ZABEL
V. TABB, 430 F.2D 199 (CA5 1970), CERT. DENIED, 401 U.S. 910 (1971)
(RECOGNIZING CONSERVATION AS A PROPER INTEREST).  SINCE THE STATE
ASSERTS NO PUBLIC NEED FOR OWNERSHIP OF THE SUBJECT LAND WE DO NOT
ATTEMPT TO DEFINE THE EXACT PARAMETERS OF THE PERMISSIBLE PUBLIC
PURPOSES. 

/16/  IN CONTRAST, THIS COURT'S DECISION IN MARINE R. & COAL CO. V.
UNITED STATES, 257 U.S. 47 (1921), INVOLVED A DETERMINATION OF FEDERAL
RIGHTS IN LAND CREATED WHEN THE FEDERAL GOVERNMENT ITSELF FILLED IN
TIDELANDS BELONGING TO IT UNDER A SERIES OF INTERSTATE COMPACTS. 

/17/  108 ARIZ. 258, 259, 495 P.2D 1312, 1313 (1972) (EMPHASIS

ADDED). 

/18/  43 U.S.C. 1301 (A)(1). 

/19/  THE LEGISLATIVE HISTORY OF THE ACT INDICATES THAT IT WAS
INTENDED TO BE MERELY CONFIRMATORY OF THE STATE'S EXISTING RIGHTS IN
THE BEDS OF THEIR NAVIGABLE WATERWAYS.  S. REP. NO. 133, 83D CONG., 1ST
SESS., PT. 1, PP. 6 - 8 (1953), PEOPLE V. HECKER, 179 CAL. APP.2D 823,
4 CAL. RPTR.  334 (1960).  SEE GENERALLY 1953 U.S.C. CONG. & AD. NEWS
1395 - 1640.  CONGRESS WAS CONCERNED ABOUT THIS COURT'S DECISION IN
UNITED STATES V. CALIFORNIA, 332 U.S. 19 (1947), WHICH HELD THAT THE
FEDERAL GOVERNMENT HAD A "PARAMOUNT INTEREST" IN THE MARGINAL SEA-LANDS
"OUTSIDE OF INLAND WATERS, BUT WITHIN TERRITORIAL LIMITS"--AND THAT THE
STATES HAD NO TITLE IN THOSE LANDS.  SEE H.R. REP. NO. 1778, 80TH
CONG., 2D SESS., 5 (1948).  THAT CONCERN IS IRRELEVANT TO THE CASE
BEFORE US, WHICH INVOLVES AN INLAND WATERWAY. 

/20/  43 U.S.C. 1301(F). 

/21/  E.G., NEBRASKA V. IOWA, 143 U.S. 359, 365 - 366 (1892); HARDIN
V. JORDAN, 140 U.S. 371 (1891); ANDERSON-TULLY CO. V. TINGLE, 166 F.2D
224, 227 - 228 (CA5), CERT. DENIED, 335 U.S. 816 (1948). 

/22/  107 ARIZ., AT 472, 489 P.2D, AT 706 (LOCKWOOD, J.,
DISSENTING), QUOTING, STATE V. R.E. JANES GRAVEL CO., 175 S.W.2D 739,
741 (TEX. CIV. APP. 1943), REV'D ON OTHER GROUNDS SUB NOM.  MAUFRAIS V.
STATE, 142 TEX. 559, 180 S.W.2D 144 (1944). 

/23/  SEE SOURCES COLLECTED AT BURNS V. FORBES, 412 F.2D 995, 997
N.2 (CA3 1969); CF. BEAVER V. UNITED STATES, 350 F.2D 4, 11 (CA9 1965),
CERT. DENIED, 383 U.S. 937 (1966); ESSO STANDARD OIL CO. V. JONES, 233
LA. 915, 98 SO.2D 236, AFF'D ON REHEARING, 233 LA. 940, 98 SO.2D 244
(1957). 

/24/  SEE, E.G., PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 633 -
635 (1912). 

/25/  SEE DISCUSSION, SUPRA, AT 321 - 324. 

/26/  THE STATE MAY WELL HAVE AN INTEREST IN THE RIVER AS AN
INTERSTATE BOUNDARY JUSTIFYING APPLICATION OF AVULSION PRINCIPLES TO
DETERMINING THE LOCATION OF THAT BOUNDARY; "(THE EMERGENCE OF . . .
LAND . . . OUGHT NOT IN REASON TO HAVE ANY CONTROLLING EFFECT UPON THE
LOCATION OF THE BOUNDARY LINE . . . ."  ARKANSAS V. TENNESSEE, 246 U.S.
158, 175 (1918).  BUT, SINCE THE LAND CLAIMED BY THE STATE AND
PETITIONER IS ALREADY LIMITED BY THE INTERSTATE BOUNDARY, HOWEVER
DETERMINED, THERE IS NO SUCH INTEREST TO COMPEL APPLICATION OF AVULSION
PRINCIPLES TO THE DISPOSITION OF TITLE TO THE SUBJECT PROPERTY. 

/27/  UNDER THE DOCTRINE OF RE-EMERGENCE, WHEN IDENTIFIABLE RIPARIAN
LAND, ONCE LOST BY EROSION, SUBSEQUENTLY RE-EMERGES AS A RESULT OF
PERCEPTIBLE CHANGE IN THE RIVER COURSE, TITLE TO THE SURFACED LAND
REVESTS IN ITS FORMER OWNER.  SEE ARKANSAS V. TENNESSEE, 246 U.S., AT
174 - 175; BEAVER V. UNITED STATES, 350 F.2D, AT 11.  THE RE-EMERGENCE
DOCTRINE HAS BEEN ACCEPTED BY A NUMBER OF STATES, HERRON V. CHOCTAW &
CHICKASAW NATIONS, 228 F.2D 830 (CA10 1956) (APPLYING OKLAHOMA LAW);
STATE V. GILL, 259 ALA. 177, 66 SO.2D 141 (1953); ESSO STANDARD OIL CO.
V. JONES, 233 LA. 915, 98 SO.2D 236, AFF'D ON REHEARING, 233 LA. 940,
98 SO.2D 244 (1957); MULRY V. NORTON, 100 N.Y. 424, 3 N.E. 581 (1885). 
BECAUSE OF THE LIMITED INTEREST OF THE STATE IN THE FORMER RIVERBED, WE
HAVE HELD THE DOCTRINE OF AVULSION INAPPLICABLE TO THIS SUIT BETWEEN
THE STATE AND A PRIVATE RIPARIAN OWNER, WHO IS SEEKING TITLE TO
SURFACED LAND IDENTIFIABLE AS PART OF HIS ORIGINAL PARCEL.  IN THAT
SENSE, WE HAVE EMBRACED THE RE-EMERGENCE CONCEPT. 

BUT WE NEED NOT HERE DETERMINE WHETHER, IN A SUIT BETWEEN PRIVATE
LANDOWNERS (OR IN WHICH THE STATE CLAIMS TITLE IN SOME CAPACITY OTHER
THAN AS OWNER OF THE RIVERBED), THE DIFFERING INTERESTS OF THE PARTIES
MIGHT REQUIRE A HOLDING THAT THE RECHANNELIZATION SHOULD BE TREATED AS
AN AVULSION.  NOR NEED WE DETERMINE WHETHER, IN A SUIT BETWEEN A
RIPARIAN OWNER AND A FORMER OWNER OF SURFACED LAND, THE FORMER SHOULD
TAKE THE PROPERTY AS AN ACCRETION OR THE LATTER AS A RE-EMERGENCE.  IT
IS ONLY THE STATE'S CLAIM TO TITLE UNDER THE EQUAL-FOOTING DOCTRINE
WHICH REQUIRED THE INVOCATION OF FEDERAL LAW TO RESOLVE THE INSTANT
DISPUTE. 

MR. JUSTICE REHNQUIST TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART, DISSENTING. 

THE COURT IN THIS CASE HOLDS THAT FEDERAL COMMON LAW GOVERNS THE
RESOLUTION OF CONFLICTING CLAIMS TO THE EXPOSED BED OF A NAVIGABLE
RIVER BETWEEN ARIZONA AS THE OWNER OF THE RIVERBED AND A RIPARIAN
LANDOWNER.  /1/  I THINK THIS RULING EMASCULATES THE EQUAL-FOOTING
DOCTRINE, UNDER WHICH THIS COURT HAS LONG HELD "THAT THE NEW STATES
SINCE ADMITTED HAVE THE SAME RIGHTS, SOVEREIGNTY AND JURISDICTION . . .
AS THE ORIGINAL STATES POSSESS WITHIN THEIR RESPECTIVE BORDERS." 
MUMFORD V. WARDWELL, 6 WALL.  423, 436 (1867). 

AFTER THE REVOLUTION, THE 13 ORIGINAL STATES SUCCEEDED BOTH TO THE
CROWN'S TITLE TO THE BEDS UNDERLYING NAVIGABLE RIVERS AND TO ITS
SOVEREIGNTY OVER THAT PROPERTY.  ID., AT 436.  "(THE SHORES OF
NAVIGABLE WATERS AND THE SOILS UNDER THE SAME IN THE ORIGINAL STATES
WERE NOT GRANTED BY THE CONSTITUTION TO THE UNITED STATES, BUT WERE
RESERVED TO THE SEVERAL STATES."  IBID.  IF THE EQUAL-FOOTING DOCTRINE
MEANS WHAT IT SAYS, THEN THE STATES THAT WERE LATER ADMITTED TO THE
UNION MUST HOLD THE SAME TITLE AND MUST EXERCISE THE SAME SOVEREIGNTY. 
WEBER V. BOARD OF HARBOR COMM'RS, 18 WALL.  57, 65 - 66 (1873); SHIVELY
V. BOWLBY, 152 U.S. 1, 16 (1894); POLLARD'S LESSEE V. HAGAN, 3 HOW. 
212, 223 (1845).  JUST AS WITH OTHER REAL PROPERTY WITHIN A STATE'S
BOUNDARIES, AN ELEMENT OF SOVEREIGNTY OVER THE PROPERTY CONSTITUTING
THE RIVERBED IS THE POWER OF THE STATE'S COURTS TO DETERMINE AND APPLY
STATE PROPERTY RULES IN THE RESOLUTION OF CONFLICTING CLAIMS TO THAT
PROPERTY.  TODAY, HOWEVER, THE COURT HOLDS THAT FEDERAL COMMON LAW
SUPERSEDES THE COMMON-LAW PROPERTY RULES APPLIED BY ARIZONA PURSUANT TO
ITS SOVEREIGN AUTHORITY OVER THE PROPERTY IN QUESTION. 

THIS COURT HAS REPEATEDLY RECOGNIZED A STATE'S POWER, AS A FUNCTION
OF ITS SOVEREIGNTY OVER THE LANDS WITHIN ITS BORDERS, TO APPLY STATE
COMMON-LAW PROPERTY RULES SUCH AS THOSE APPLIED BY THE SUPREME COURT OF
ARIZONA IN THIS CASE: 

     "THE) RIGHT OF THE STATES TO REGULATE AND CONTROL THE SHORES
OF

  TIDE WATERS, AND THE LAND UNDER THEM, IS THE SAME AS THAT WHICH

  IS EXERCISED BY THE CROWN IN ENGLAND.  IN THIS COUNTRY THE SAME

  RULE HAS BEEN EXTENDED TO OUR GREAT NAVIGABLE LAKES . . .; AND

ALSO . . . TO NAVIGABLE RIVERS . . .; BUT IT DEPENDS ON THE LAW

  OF EACH STATE TO WHAT WATERS AND TO WHAT EXTENT THIS PREROGATIVE

  OF THE STATE OVER THE LANDS UNDER WATER SHALL BE EXERCISED." 

  HARDIN V. JORDAN, 140 U.S. 371, 382 (1891). 

WITH RESPECT TO AN AVULSION EXPOSING LARGE PORTIONS OF RIVERBED AND
LEADING TO CONFLICTING CLAIMS TO THE OWNERSHIP OF THE EXPOSED LAND,
VIRTUALLY THE TWIN OF THIS CASE, THE COURT HAS SAID: 

     "HOW THE LAND THAT EMERGES . . . SHALL BE DISPOSED OF AS

  BETWEEN PUBLIC AND PRIVATE OWNERSHIP IS A MATTER TO BE DETERMINED

  ACCORDING TO THE LAW OF EACH STATE, UNDER THE FAMILIAR DOCTRINE

  THAT IT IS FOR THE STATES TO ESTABLISH FOR THEMSELVES SUCH RULES

  OF PROPERTY AS THEY DEEM EXPEDIENT WITH RESPECT TO THE NAVIGABLE

  WATERS WITHIN THEIR BORDERS AND THE RIPARIAN LANDS ADJACENT TO

THEM.  . . . THUS, (THE STATE) MAY LIMIT RIPARIAN OWNERSHIP BY THE

  ORDINARY HIGH-WATER MARK . . . (OR) MAY, IN THE CASE OF AN

  AVULSION FOLLOWED BY A DRYING UP OF THE OLD CHANNEL OF THE RIVER,

  RECOGNIZE THE RIGHT OF FORMER RIPARIAN OWNERS TO BE RESTORED TO

  THAT WHICH THEY HAVE LOST THROUGH GRADUAL EROSIONS IN TIMES

  PRECEDING THE AVULSION . . . ."  ARKANSAS V. TENNESSEE, 246 U.S.

  158, 175 - 176 (1918). 

ALONG THE SAME VEIN, THE COURT HAS SAID: 

     "IT IS GENERALLY CONCEDED THAT THE RIPARIAN TITLE ATTACHES TO

SUBSEQUENT ACCRETIONS TO THE LAND EFFECTED BY THE GRADUAL AND

  IMPERCEPTIBLE OPERATION OF NATURAL CAUSES.  BUT WHETHER IT

  ATTACHES TO LAND RECLAIMED BY ARTIFICIAL MEANS FROM THE BED OF

  THE RIVER, OR TO SUDDEN ACCRETIONS PRODUCED BY UNUSUAL FLOODS, IS

  A QUESTION WHICH EACH STATE DECIDES FOR ITSELF.  . . . THE

  CONFUSION OF NAVIGABLE WITH TIDE WATER, FOUND IN THE MONUMENTS OF

  THE COMMON LAW, LONG PREVAILED IN THIS COUNTRY . . . . (IT LAID

  THE FOUNDATION IN MANY STATES OF DOCTRINES WITH REGARD TO THE

  OWNERSHIP OF THE SOIL IN NAVIGABLE WATERS ABOVE TIDE-WATER AT

  VARIANCE WITH SOUND PRINCIPLES OF PUBLIC POLICY.  WHETHER, AS

 RULES OF PROPERTY, IT WOULD NOW BE SAFE TO CHANGE THESE DOCTRINES

  WHERE THEY HAVE BEEN APPLIED . . . IS FOR THE SEVERAL STATES

  THEMSELVES TO DETERMINE . . . . (THE DECISION) PROPERLY BELONGS

  TO THE STATES BY THEIR INHERENT SOVEREIGNTY . . . ."  BARNEY V.

  KEOKUK, 94 U.S. 324, 337 - 338 (1877). 

TO PUT THE MATTER BLUNTLY, THE COURT'S APPLICATION OF THE EQUAL
FOOTING DOCTRINE IN THIS CASE SEEMS TO ME WHOLLY WRONG.  WHILE
CONCEDING THAT THE LATER-ADMITTED STATES HAVE "'THE SAME RIGHTS,
SOVEREIGNTY AND JURISDICTION . . . AS THE ORIGINAL STATES POSSESS
WITHIN THEIR RESPECTIVE BORDERS,'" ANTE, AT 318, THE COURT HOLDS THAT
"THE NATURE AND EXTENT OF THE TITLE TO THE BED OF A NAVIGABLE STREAM
HELD BY THE STATE UNDER THE EQUAL-FOOTING DOCTRINE" INVOLVES A "'RIGHT
ASSERTED UNDER FEDERAL LAW'"  THAT MUST BE DETERMINED UNDER THE RULES
OF FEDERAL COMMON LAW.  THE EFFECT OF THE COURT'S ANALYSIS IS
COMPLETELY TO UNDERCUT THE EQUAL-FOOTING DOCTRINE.  AS NOTED ABOVE, THE
ORIGINAL STATES DERIVED THEIR SOVEREIGN RIGHTS AND POWERS DIRECTLY FROM
THE CROWN AFTER THE REVOLUTION AND RETAINED WHATEVER POWERS THEY DID
NOT LATER SURRENDER OR LIMIT IN THE FEDERAL CONSTITUTION.  EVEN UNDER
THE COURT'S "TITLE" ANALYSIS, THEREFORE, FEDERAL COMMON LAW WOULD NOT
GOVERN THE CONFLICTING CLAIMS INVOLVED HERE IF THE RIVER WERE LOCATED
IN MASSACHUSETTS OR VIRGINIA, RATHER THAN IN ARIZONA. 

THE UPSHOT OF THE COURT'S DECISION IS THAT THE 13 ORIGINAL STATES
ARE FREE TO DEVELOP AND APPLY THEIR OWN RULES OF PROPERTY LAW FOR THE
RESOLUTION OF CONFLICTING CLAIMS TO AN EXPOSED BED OF A RIVER, WHILE
THOSE STATES ADMITTED AFTER THE CONSTITUTION'S RATIFICATION MUST UNDER
TODAY'S DECISION KNUCKLE UNDER TO THIS COURT'S SUPERVISORY VIEW OF
"FEDERAL COMMON LAW."  A LATER-ADMITTED STATE LIKE ARIZONA IS THUS NOT
AT ALL ON AN EQUAL-FOOTING WITH THE ORIGINAL STATES IN THE EXERCISE OF
SOVEREIGNTY OVER REAL PROPERTY WITHIN ITS BOUNDARIES.  AND THE VEHICLE
USED BY THE COURT TO ARRIVE AT THIS UNJUST RESULT IS, INCREDIBLY, THE
VERY DOCTRINE THAT WAS INTENDED TO INSURE TO THE NEW STATES EQUAL
FOOTING WITH THE ORIGINAL STATES.  THUS, THE COURT'S STRANGE
APPLICATION OF THE EQUAL-FOOTING DOCTRINE BRINGS THAT CONSTITUTIONAL
PRINCIPLE INTO FUNDAMENTAL CONFLICT WITH THE PURPOSE IT WAS INTENDED TO
SERVE.     IF THE EQUAL-FOOTING DOCTRINE MEANS ANYTHING, IT MEANS THAT
ARIZONA CANNOT BE TREATED AS A SECOND-CLASS STATE.  IT MEANS THAT, UPON
ADMISSION TO THE UNION, IT RECEIVED TITLE TO, AND SOVEREIGNTY OVER, THE
BEDS OF NAVIGABLE RIVERS WITHIN ITS BOUNDARIES, TO THE SAME EXTENT AS
THE ORIGINAL STATES AFTER THE REVOLUTION.  AS A FUNCTION OF THAT
SOVEREIGNTY, ARIZONA COURTS HAVE THE POWER TO DEVELOP AND APPLY STATE
COMMON LAW IN DETERMINING LEGAL QUESTIONS THAT ARISE WITH RESPECT TO
THIS PROPERTY, INCLUDING CONFLICTING CLAIMS TO THE BED THAT IS LATER
EXPOSED BY THE VAGARIES OF THE RIVER.  AND THE POWER OF THE ARIZONA
COURTS TO DECIDE THIS CONTROVERSY UNDER STATE LAW SURELY INCLUDES THE
POWER TO DECIDE IT IN A WAY THAT WE HERE MIGHT THINK IS WHOLLY WRONG. 
/2/ 

/1/  THE COURT EMPHASIZES THE FACT THAT IT IS THE STATE THAT HOLDS
THE TITLE TO THE RIVERBED PROPERTY.  THE NATURE OF THE TITLE HELD BY
THE STATE, HOWEVER, IS SUCH THAT IT COULD BE CONVEYED TO A PRIVATE
OWNER.  ("(THE SETTLED LAW OF THIS COUNTRY (IS) THAT THE OWNERSHIP OF
AND DOMINION AND SOVEREIGNTY OVER LANDS COVERED BY TIDE WATERS, OR
NAVIGABLE (RIVERS), WITHIN THE LIMITS OF THE SEVERAL STATES, BELONG TO
THE RESPECTIVE STATES WITHIN WHICH THEY ARE FOUND, WITH THE CONSEQUENT
RIGHT TO USE OR DISPOSE OF ANY PORTION THEREOF . . . ."  SHIVELY V.
BOWLBY, 152 U.S. 1, 47 (1894); ILLINOIS CENTRAL R. CO. V. ILLINOIS, 146
U.S. 387, 435 (1892); UNITED STATES V. HOLT BANK, 270 U.S. 49, 54 - 55
(1926).)  SINCE THE STATE COULD HARDLY CONVEY MORE TITLE THAN IT HELD,
IT WOULD APPEAR FROM THE COURT'S OPINION THAT FEDERAL LAW WOULD ALSO
GOVERN THE RESOLUTION OF CONFLICTING CLAIMS TO THE EXPOSED RIVERBED AS
BETWEEN A PRIVATE OWNER OF THE BED AND A PRIVATE RIPARIAN OWNER. 

/2/  THE COURT IMPLIES, BUT DOES NOT HOLD, THAT THE DECISION OF THE
ARIZONA SUPREME COURT MIGHT CONSTITUTE A TAKING OF THE PETITIONER
CATTLE COMPANY'S PROPERTY WITHOUT COMPENSATION, IN VIOLATION OF DUE
PROCESS OF LAW.  MY CONVICTION THAT THIS INFIRMITY WAS PRESENT IN THE
DECISION OF THE WASHINGTON SUPREME COURT WAS THE REASON FOR MY SPECIAL
CONCURRENCE IN HUGHES V. WASHINGTON, 389 U.S. 290, 294 - 298 (1967). 
HUGHES WAS A CASE IN WHICH A STATE COURT EFFECTED A RETROACTIVE CHANGE
IN STATE PROPERTY LAW THAT RESULTED IN AN UNCONSTITUTIONAL TAKING OF
PROPERTY WITHOUT COMPENSATION.  THAT, HOWEVER, IS NOT THE SITUATION
HERE.  THE ARIZONA SUPREME COURT SIMPLY APPLIED ITS ESTABLISHED
PROPERTY RULES WITH REGARD TO THE EFFECTS OF AVULSION, ACCRETION,
EROSION, AND RELICTION IN RESOLVING CONFLICTING CLAIMS TO THE EXPOSED
RIVERBED.  IT DECLINED THE PETITIONERS' INVITATION TO ADOPT THE
"ENLIGHTENED" RE-EMERGENCE DOCTRINE AS PART OF THE LAW OF ARIZONA. 
THIS CASE, THEREFORE, DOES NOT INVOLVE A RETROACTIVE ALTERATION OF
STATE LAW SUCH AS WOULD CONSTITUTE AN UNCONSTITUTIONAL TAKING OF
PRIVATE PROPERTY. 

ELMER C. COKER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WAS LEONARD C. LANGFORD. 

DALE R. SHUMWAY ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS GARY K. NELSON, ATTORNEY GENERAL OF ARIZONA.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY
SOLICITOR GENERAL BORK FOR THE UNITED STATES, AND BY EVELLE J. YOUNGER,
ATTORNEY GENERAL, JAY L. SHAVELSON, ASSISTANT ATTORNEY GENERAL, AND
WARREN J. ABBOTT AND JEROLD A. KRIEGER, DEPUTY ATTORNEYS GENERAL, FOR
THE STATE OF CALIFORNIA. 

BRIEFS OF AMICI CURIAE WERE FILED BY PHILIP E. VON AMMON FOR THE
SANTA FE PACIFIC RAILROAD CO., AND BY DAVID H. GETCHES FOR THE COCOPAH
TRIBE OF INDIANS. 
..END :








UNITED STATES V. ROBINSON, 414 U.S. 218 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 72 - 936.  ARGUED OCTOBER 9, 1973--DECIDED DECEMBER 11,

           1973; 153 U.S. APP. D.C. 114, 471 F.2D 1082, REVERSED. 


    HAVING, AS A RESULT OF A PREVIOUS CHECK OF RESPONDENT'S

  OPERATOR'S PERMIT, PROBABLE CAUSE TO ARREST RESPONDENT FOR

  DRIVING WHILE HIS LICENSE WAS REVOKED, A POLICE OFFICER MADE A

  FULL-CUSTODY ARREST OF RESPONDENT FOR SUCH OFFENSE.  IN

  ACCORDANCE WITH PRESCRIBED PROCEDURES, THE OFFICER MADE A SEARCH

  OF RESPONDENT'S PERSON, IN THE COURSE OF WHICH HE FOUND IN A COAT

  POCKET A CIGARETTE PACKAGE CONTAINING HEROIN.  THE HEROIN WAS

  ADMITTED INTO EVIDENCE AT THE DISTRICT COURT TRIAL, WHICH

  RESULTED IN RESPONDENT'S CONVICTION FOR A DRUG OFFENSE.  THE

  COURT OF APPEALS REVERSED ON THE GROUND THAT THE HEROIN HAD BEEN

  OBTAINED AS A RESULT OF A SEARCH IN VIOLATION OF THE FOURTH

AMENDMENT.  HELD:  IN THE CASE OF A LAWFUL CUSTODIAL ARREST A

  FULL SEARCH OF THE PERSON IS NOT ONLY AN EXCEPTION TO THE WARRANT

  REQUIREMENT OF THE FOURTH AMENDMENT, BUT IS ALSO A "REASONABLE"

  SEARCH UNDER THAT AMENDMENT.  PP. 224 - 237. 

     (A) A SEARCH INCIDENT TO A VALID ARREST IS NOT LIMITED TO A

  FRISK OF THE SUSPECT'S OUTER CLOTHING AND REMOVAL OF SUCH WEAPONS

  AS THE ARRESTING OFFICER MAY, AS A RESULT OF SUCH FRISK,

  REASONABLY BELIEVE AND ASCERTAIN THAT THE SUSPECT HAS IN HIS

  POSSESSION, AND THE ABSENCE OF PROBABLE FRUITS OR FURTHER

  EVIDENCE OF THE PARTICULAR CRIME FOR WHICH THE ARREST IS MADE

  DOES NOT NARROW THE STANDARDS APPLICABLE TO SUCH A SEARCH.  TERRY

  V. OHIO, 392 U.S. 1, DISTINGUISHED.  PP. 227 - 229; 234 - 235. 

 (B) A CUSTODIAL ARREST OF A SUSPECT BASED ON PROBABLE CAUSE IS

  A REASONABLE INTRUSION UNDER THE FOURTH AMENDMENT AND A SEARCH

  INCIDENT TO THE ARREST REQUIRES NO ADDITIONAL JUSTIFICATION, SUCH

  AS THE PROBABILITY IN A PARTICULAR ARREST SITUATION THAT WEAPONS

  OR EVIDENCE WOULD IN FACT BE FOUND UPON THE SUSPECT'S PERSON; AND

  WHETHER OR NOT THERE WAS PRESENT ONE OF THE REASONS SUPPORTING

  THE AUTHORITY FOR A SEARCH OF THE PERSON INCIDENT TO A LAWFUL

  ARREST NEED NOT BE LITIGATED IN EACH CASE.  P. 235. 

     (C) SINCE THE CUSTODIAL ARREST HERE GAVE RISE TO THE AUTHORITY

 TO SEARCH.  IT IS IMMATERIAL THAT THE ARRESTING OFFICER DID NOT

  FEAR THE RESPONDENT OR SUSPECT THAT HE WAS ARMED.  PP. 236 -

  237. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT IN WHICH BURGER,
C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  POWELL,
J., FILED A CONCURRING OPINION,POST, P. 237.  MARSHALL, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN, JJ., JOINED, POST, P.
238. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENT ROBINSON WAS CONVICTED IN UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA OF THE POSSESSION AND FACILITATION OF
CONCEALMENT OF HEROIN IN VIOLATION OF 26 U.S.C. 4704(A) (1964 ED.), AND
21 U.S.C. 174 (1964 ED.).  HE WAS SENTENCED TO CONCURRENT TERMS OF
IMPRISONMENT FOR THESE OFFENSES.  ON HIS APPEAL TO THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT, THAT COURT FIRST REMANDED THE
CASE TO THE DISTRICT COURT FOR AN EVIDENTIARY HEARING CONCERNING THE
SCOPE OF THE SEARCH OF RESPONDENT'S PERSON WHICH HAD OCCURRED AT THE
TIME OF HIS ARREST.  145 U.S. APP. D.C. 46, 447 F.2D 1215 (1971).  THE
DISTRICT COURT MADE FINDINGS OF FACT AND CONCLUSIONS OF LAW ADVERSE TO
RESPONDENT, AND HE AGAIN APPEALED.  THIS TIME THE COURT OF APPEALS EN
BANC REVERSED THE JUDGMENT OF CONVICTION, HOLDING THAT THE HEROIN
INTRODUCED IN EVIDENCE AGAINST RESPONDENT HAD BEEN OBTAINED AS A RESULT
OF A SEARCH WHICH VIOLATED THE FOURTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.  153 U.S. APP. D.C. 114, 471 F.2D 1082 (1972).  WE
GRANTED CERTIORARI, 410 U.S. 982 (1973), AND SET THE CASE FOR ARGUMENT
TOGETHER WITH GUSTAFSON V. FLORIDA, NO. 71 - 1669, POST, P. 260, ALSO
DECIDED TODAY. 

ON APRIL 23, 1968, AT APPROXIMATELY 11 P.M., OFFICER RICHARD JENKS, A
15 - YEAR VETERAN OF THE DISTRICT OF COLUMBIA METROPOLITAN POLICE
DEPARTMENT, OBSERVED THE RESPONDENT DRIVING A 1965 CADILLAC NEAR THE
INTERSECTION OF 8TH AND C STREETS, N.E., IN THE DISTRICT OF COLUMBIA. 
JENKS, AS A RESULT OF PREVIOUS INVESTIGATION FOLLOWING A CHECK OF
RESPONDENT'S OPERATOR'S PERMIT FOUR DAYS EARLIER, DETERMINED THERE WAS
REASON TO BELIEVE THAT RESPONDENT WAS OPERATING A MOTOR VEHICLE AFTER
THE REVOCATION OF HIS OPERATOR'S PERMIT.  THIS IS AN OFFENSE DEFINED BY
STATUTE IN THE DISTRICT OF COLUMBIA WHICH CARRIES A MANDATORY MINIMUM
JAIL TERM, A MANDATORY MINIMUM FINE, OR BOTH.  D.C. CODE ANN. 40-
302(D) (1967). 

JENKS SIGNALED RESPONDENT TO STOP THE AUTOMOBILE, WHICH RESPONDENT
DID, AND ALL THREE OF THE OCCUPANTS EMERGED FROM THE CAR.  AT THAT
POINT JENKS INFORMED RESPONDENT THAT HE WAS UNDER ARREST FOR "OPERATING
AFTER REVOCATION AND OBTAINING PERMIT BY MISREPRESENTATION."  IT WAS
ASSUMED BY THE COURT OF APPEALS, AND IS CONCEDED BY THE RESPONDENT
HERE, THAT JENKS HAD PROBABLE CAUSE TO ARREST RESPONDENT, AND THAT HE
EFFECTED A FULL-CUSTODY ARREST.  /1/ 

IN ACCORDANCE WITH PROCEDURES PRESCRIBED IN POLICE DEPARTMENT
INSTRUCTIONS, /2/  JENKS THEN BEGAN TO SEARCH RESPONDENT.  HE EXPLAINED
AT A SUBSEQUENT HEARING THAT HE WAS "FACE-TO-FACE" WITH THE RESPONDENT,
AND "PLACED (HIS) HANDS ON (THE RESPONDENT), MY RIGHT-HAND TO HIS LEFT
BREAST LIKE THIS (DEMONSTRATING) AND PROCEEDED TO PAT HIM DOWN THUS
(WITH THE RIGHT HAND)."  DURING THIS PATDOWN, JENKS FELT AN OBJECT IN
THE LEFT BREAST POCKET OF THE HEAVY COAT RESPONDENT WAS WEARING, BUT
TESTIFIED THAT HE "COULDN'T TELL WHAT IT WAS" AND ALSO THAT HE
"COULDN'T ACTUALLY TELL THE SIZE OF IT."  JENKS THEN REACHED INTO THE
POCKET AND PULLED OUT THE OBJECT, WHICH TURNED OUT TO BE A "CRUMPLED UP
CIGARETTE PACKAGE."  JENKS TESTIFIED THAT AT THIS POINT HE STILL DID
NOT KNOW WHAT WAS IN THE PACKAGE: 

"AS I FELT THE PACKAGE I COULD FEEL OBJECTS IN THE PACKAGE BUT I
COULDN'T TELL WHAT THEY WERE . . . .I KNEW THEY WEREN'T CIGARETTES." 

THE OFFICER THEN OPENED THE CIGARETTE PACK AND FOUND 14 GELATIN
CAPSULES OF WHITE POWDER WHICH HE THOUGHT TO BE, AND WHICH LATER
ANALYSIS PROVED TO BE, HEROIN.  JENKS THEN CONTINUED HIS SEARCH OF
RESPONDENT TO COMPLETION, FEELING AROUND HIS WAIST AND TROUSER LEGS,
AND EXAMINING THE REMAINING POCKETS.  THE HEROIN SEIZED FROM THE
RESPONDENT WAS ADMITTED INTO EVIDENCE AT THE TRIAL WHICH RESULTED IN
HIS CONVICTION IN THE DISTRICT COURT. 

THE OPINION FOR THE PLURALITY JUDGES OF THE COURT OF APPEALS,
WRITTEN BY JUDGE WRIGHT, THE CONCURRING OPINION OF CHIEF JUDGE BAZELON,
AND THE DISSENTING OPINION OF JUDGE WILKEY, CONCURRED IN BY THREE
JUDGES, GAVE CAREFUL AND COMPREHENSIVE TREATMENT TO THE AUTHORITY OF A
POLICE OFFICER TO SEARCH THE PERSON OF ONE WHO HAS BEEN VALIDLY
ARRESTED AND TAKEN INTO CUSTODY.  WE CONCLUDE THAT THE SEARCH CONDUCTED
BY JENKS IN THIS CASE DID NOT OFFEND THE LIMITS IMPOSED BY THE FOURTH
AMENDMENT, AND WE THEREFORE REVERSE THE JUDGMENT OF THE COURT OF
APPEALS. 

        I 

IT IS WELL SETTLED THAT A SEARCH INCIDENT TO A LAWFUL ARREST IS A
TRADITIONAL EXCEPTION TO THE WARRANT REQUIREMENT OF THE FOURTH
AMENDMENT.  THIS GENERAL EXCEPTION HAS HISTORICALLY BEEN FORMULATED
INTO TWO DISTINCT PROPOSITIONS.  THE FIRST IS THAT A SEARCH MAY BE MADE
OF THE PERSON OF THE ARRESTEE BY VIRTUE OF THE LAWFUL ARREST.  THE
SECOND IS THAT A SEARCH MAY BE MADE OF THE AREA WITHIN THE CONTROL OF
THE ARRESTEE. 

EXAMINATION OF THIS COURT'S DECISIONS SHOWS THAT THESE TWO
PROPOSITIONS HAVE BEEN TREATED QUITE DIFFERENTLY.  THE VALIDITY OF THE
SEARCH OF A PERSON INCIDENT TO A LAWFUL ARREST HAS BEEN REGARDED AS
SETTLED FROM ITS FIRST ENUNCIATION, AND HAS REMAINED VIRTUALLY
UNCHALLENGED UNTIL THE PRESENT CASE.  THE VALIDITY OF THE SECOND
PROPOSITION, WHILE LIKEWISE CONCEDED IN PRINCIPLE, HAS BEEN SUBJECT TO
DIFFERING INTERPRETATIONS AS TO THE EXTENT OF THE AREA WHICH MAY BE
SEARCHED. 

BECAUSE THE RULE REQUIRING EXCLUSION OF EVIDENCE OBTAINED IN
VIOLATION OF THE FOURTH AMENDMENT WAS FIRST ENUNCIATED IN WEEKS V.
UNITED STATES, 232 U.S. 383 (1914), IT IS UNDERSTANDABLE THAT VIRTUALLY
ALL OF THIS COURT'S SEARCH-AND-SEIZURE LAW HAS BEEN DEVELOPED SINCE
THAT TIME.  IN WEEKS, THE COURT MADE CLEAR ITS RECOGNITION OF THE
VALIDITY OF A SEARCH INCIDENT TO A LAWFUL ARREST: 

   "WHAT THEN IS THE PRESENT CASE?  BEFORE ANSWERING THAT INQUIRY

  SPECIFICALLY, IT MAY BE WELL BY A PROCESS OF EXCLUSION TO STATE

  WHAT IT IS NOT.  IT IS NOT AN ASSERTION OF THE RIGHT ON THE PART

  OF THE GOVERNMENT, ALWAYS RECOGNIZED UNDER ENGLISH AND AMERICAN

  LAW, TO SEARCH THE PERSON OF THE ACCUSED WHEN LEGALLY ARRESTED TO

  DISCOVER AND SEIZE THE FRUITS OR EVIDENCES OF CRIME.  THIS RIGHT

  HAS BEEN UNIFORMLY MAINTAINED IN MANY CASES.  1 BISHOP ON

  CRIMINAL PROCEDURE, 211; WHARTON, CRIM. PLEAD.  AND PRACTICE, 8TH

  ED., 60; DILLON V. O'BRIEN AND DAVIS, 16 COX C.C. 245."  232

  U.S., AT 392. 

AGNELLO V. UNITED STATES, 269 U.S. 20 (1925), DECIDED 11 YEARS AFTER
WEEKS, REPEATS THE CATEGORICAL RECOGNITION OF THE VALIDITY OF A SEARCH
INCIDENT TO LAWFUL ARREST: 

     THE RIGHT WITHOUT A SEARCH WARRANT CONTEMPORANEOUSLY TO SEARCH

  PERSONS LAWFULLY ARRESTED WHILE COMMITTING CRIME AND TO SEARCH

  THE PLACE WHERE THE ARREST IS MADE IN ORDER TO FIND AND SEIZE

  THINGS CONNECTED WITH THE CRIME AS ITS FRUITS OR AS THE MEANS BY

  WHICH IT WAS COMMITTED AS WELL AS WEAPONS AND OTHER THINGS TO

  EFFECT AN ESCAPE FROM CUSTODY, IS NOT TO BE DOUBTED."  ID., AT

  30. 

THROUGHOUT THE SERIES OF CASES IN WHICH THE COURT HAS ADDRESSED THE
SECOND PROPOSITION RELATING TO A SEARCH INCIDENT TO A LAWFUL ARREST-
THE PERMISSIBLE AREA BEYOND THE PERSON OF THE ARRESTEE WHICH SUCH A
SEARCH MAY COVER--NO DOUBT HAS BEEN EXPRESSED AS TO THE UNQUALIFIED
AUTHORITY OF THE ARRESTING AUTHORITY TO SEARCH THE PERSON OF THE
ARRESTEE.  E.G., CARROLL V. UNITED STATES, 267 U.S. 132 (1925); MARRON
V. UNITED STATES, 275 U.S. 192 (1927); GO-BART CO. V. UNITED STATES,
282 U.S. 344 (1931); UNITED STATES V. LEFKOWITZ, 285 U.S. 452 (1932);
HARRIS V. UNITED STATES, 331 U.S. 145 (1947); TRUPIANO V. UNITED
STATES, 334 U.S. 699 (1948); UNITED STATES V. RABINOWITZ, 339 U.S. 56
(1950); PRESTON V. UNITED STATES, 376 U.S. 364 (1964); CHIMEL V.
CALIFORNIA, 395 U.S. 752 (1969).  IN CHIMEL, WHERE THE COURT OVERRULED
RABINOWITZ AND HARRIS AS TO THE AREA OF PERMISSIBLE SEARCH INCIDENT TO
A LAWFUL ARREST, FULL RECOGNITION WAS AGAIN GIVEN TO THE AUTHORITY TO
SEARCH THE PERSON OF THE ARRESTEE: 

"WHEN AN ARREST IS MADE, IT IS REASONABLE FOR THE ARRESTING OFFICER
TO SEARCH THE PERSON ARRESTED IN ORDER TO REMOVE ANY WEAPONS THAT THE
LATTER MIGHT SEEK TO USE IN ORDER TO RESIST ARREST OR EFFECT HIS
ESCAPE.  OTHERWISE, THE OFFICER'S SAFETY MIGHT WELL BE ENDANGERED, AND
THE ARREST ITSELF FRUSTRATED.  IN ADDITION, IT IS ENTIRELY REASONABLE
FOR THE ARRESTING OFFICER TO SEARCH FOR AND SEIZE ANY EVIDENCE ON THE
ARRESTEE'S PERSON IN ORDER TO PREVENT ITS CONCEALMENT OR DESTRUCTION." 
396 U.S., AT 762 - 763. 

THREE YEARS AFTER THE DECISION IN CHIMEL, SUPRA, WE UPHELD THE
VALIDITY OF A SEARCH IN WHICH HEROIN HAD BEEN TAKEN FROM THE PERSON OF
THE DEFENDANT AFTER HIS ARREST ON A WEAPONS CHARGE, IN ADAMS V.
WILLIAMS, 407 U.S. 143 (1972), SAYING: 

"UNDER THE CIRCUMSTANCES SURROUNDING WILLIAMS' POSSESSION OF THE GUN
SEIZED BY SGT. CONNOLLY, THE ARREST ON THE WEAPONS CHARGE WAS SUPPORTED
BY PROBABLE CAUSE, AND THE SEARCH OF HIS PERSON AND OF THE CAR INCIDENT
TO THAT ARREST WAS LAWFUL."  ID., AT 149.  LAST TERM IN CUPP V. MURPHY,
412 U.S. 291, 295 (1973), WE AGAIN REAFFIRMED THE TRADITIONAL STATEMENT
OF THE AUTHORITY TO SEARCH INCIDENT TO A VALID ARREST. 

THUS THE BROADLY STATED RULE, AND THE REASONS FOR IT, HAVE BEEN
REPEATEDLY AFFIRMED IN THE DECISIONS OF THIS COURT SINCE WEEKS V.
UNITED STATES, SUPRA, NEARLY 60 YEARS AGO.  SINCE THE STATEMENTS IN THE
CASES SPEAK NOT SIMPLY IN TERMS OF AN EXCEPTION TO THE WARRANT
REQUIREMENT, BUT IN TERMS OF AN AFFIRMATIVE AUTHORITY TO SEARCH, THEY
CLEARLY IMPLY THAT SUCH SEARCHES ALSO MEET THE FOURTH AMENDMENT'S
REQUIREMENT OF REASONABLENESS. 

        II 

IN ITS DECISION OF THIS CASE, THE COURT OF APPEALS DECIDED THAT EVEN
AFTER A POLICE OFFICER LAWFULLY PLACES A SUSPECT UNDER ARREST FOR THE
PURPOSE OF TAKING HIM INTO CUSTODY, HE MAY NOT ORDINARILY PROCEED TO
FULLY SEARCH THE PRISONER.  HE MUST INSTEAD CONDUCT A LIMITED FRISK OF
THE OUTER CLOTHING AND REMOVE SUCH WEAPONS THAT HE MAY, AS A RESULT OF
THAT LIMITED FRISK, REASONABLY BELIEVE AND ASCERTAIN THAT THE SUSPECT
HAS IN HIS POSSESSION.  WHILE RECOGNIZING THAT TERRY V. OHIO, 392 U.S.
1 (1968), DEALT WITH A PERMISSIBLE "FRISK" INCIDENT TO AN INVESTIGATIVE
STOP BASED ON LESS THAN PROBABLE CAUSE TO ARREST, THE COURT OF APPEALS
FELT THAT THE PRINCIPLES OF THAT CASE SHOULD BE CARRIED OVER TO THIS
PROBABLE-CAUSE ARREST FOR DRIVING WHILE ONE'S LICENSE IS REVOKED. 
SINCE THERE WOULD BE NO FURTHER EVIDENCE OF SUCH A CRIME TO BE OBTAINED
IN A SEARCH OF THE ARRESTEE, THE COURT HELD THAT ONLY A SEARCH FOR
WEAPONS COULD BE JUSTIFIED. 

TERRY V. OHIO, SUPRA, DID NOT INVOLVE AN ARREST FOR PROBABLE CAUSE,
AND IT MADE QUITE CLEAR THAT THE "PROTECTIVE FRISK" FOR WEAPONS WHICH
IT APPROVED MIGHT BE CONDUCTED WITHOUT PROBABLE CAUSE.  392 U.S., AT 21
- 22, 24 - 25.  THIS COURT'S OPINION EXPLICITLY RECOGNIZED THAT THERE
IS A "DISTINCTION IN PURPOSE, CHARACTER, AND EXTENT BETWEEN A SEARCH
INCIDENT TO AN ARREST AND A LIMITED SEARCH FOR WEAPONS." 

"THE FORMER, ALTHOUGH JUSTIFIED IN PART BY THE ACKNOWLEDGED
NECESSITY TO PROTECT THE ARRESTING OFFICER FROM ASSAULT WITH A
CONCEALED WEAPON, PRESTON V. UNITED STATES, 376 U.S. 364, 367 (1964),
IS ALSO JUSTIFIED ON OTHER GROUNDS, IBID., AND CAN THEREFORE INVOLVE A
RELATIVELY EXTENSIVE EXPLORATION OF THE PERSON.  A SEARCH FOR WEAPONS
IN THE ABSENCE OF PROBABLE CAUSE TO ARREST, HOWEVER, MUST, LIKE ANY
OTHER SEARCH, BE STRICTLY CIRCUMSCRIBED BY THE EXIGENCIES WHICH JUSTIFY
ITS INITIATION.  WARDEN V. HAYDEN, 387 U.S. 294, 310 (1967) (MR.
JUSTICE FORTAS, CONCURRING).  THUS IT MUST BE LIMITED TO THAT WHICH IS
NECESSARY FOR THE DISCOVERY OF WEAPONS WHICH MIGHT BE USED TO HARM THE
OFFICER OR OTHERS NEARBY, AND MAY REALISTICALLY BE CHARACTERIZED AS
SOMETHING LESS THAN A "FULL"  SEARCH, EVEN THOUGH IT REMAINS A SERIOUS
INTRUSION. 

     ". . . AN ARREST IS A WHOLLY DIFFERENT KIND OF INTRUSION UPON

  INDIVIDUAL FREEDOM FROM A LIMITED SEARCH FOR WEAPONS, AND THE

  INTERESTS EACH IS DESIGNED TO SERVE ARE LIKEWISE QUITE

  DIFFERENT.  AN ARREST IS THE INITIAL STAGE OF A CRIMINAL

  PROSECUTION.  IT IS INTENDED TO VINDICATE SOCIETY'S INTEREST IN

  HAVING ITS LAWS OBEYED, AND IT IS INEVITABLY ACCOMPANIED BY

FUTURE INTERFERENCE WITH THE INDIVIDUAL'S FREEDOM OF MOVEMENT,

  WHETHER OR NOT TRIAL OR CONVICTION ULTIMATELY FOLLOWS.  THE

  PROTECTIVE SEARCH FOR WEAPONS, ON THE OTHER HAND, CONSTITUTES A

  BRIEF, THOUGH FAR FROM INCONSIDERABLE, INTRUSION UPON THE

  SANCTITY OF THE PERSON."  392 U.S., AT 25 - 26 (FOOTNOTE

  OMITTED). 

TERRY, THEREFORE, AFFORDS NO BASIS TO CARRY OVER TO A PROBABLE-CAUSE
ARREST THE LIMITATIONS THIS COURT PLACED ON A STOP-AND-FRISK SEARCH
PERMISSIBLE WITHOUT PROBABLE CAUSE. 

THE COURT OF APPEALS ALSO RELIED ON LANGUAGE IN PETERS V. NEW YORK,
392 U.S. 40, 66 (1968), A COMPANION CASE TO TERRY.  THERE THE COURT
HELD THAT THE POLICE OFFICER HAD AUTHORITY TO SEARCH PETERS BECAUSE HE
HAD PROBABLE CAUSE TO ARREST HIM, AND WENT ON TO SAY: 

"(THE INCIDENT SEARCH WAS OBVIOUSLY JUSTIFIED 'BY THE NEED TO SEIZE
WEAPONS AND OTHER THINGS WHICH MIGHT BE USED TO ASSAULT AN OFFICER OR
EFFECT AN ESCAPE, AS WELL AS BY THE NEED TO PREVENT THE DESTRUCTION OF
EVIDENCE OF THE CRIME.'  PRESTON V. UNITED STATES, 376 U.S. 364, 367
(1964).  MOREOVER, IT WAS REASONABLY LIMITED IN SCOPE BY THESE
PURPOSES.  OFFICER LASKY DID NOT ENGAGE IN AN UNRESTRAINED AND THOROUGH
GOING EXAMINATION OF PETERS AND HIS PERSONAL EFFECTS."  392 U.S., AT
67.     IT IS, OF COURSE, POSSIBLE TO READ THE SECOND SENTENCE FROM
THIS QUOTATION AS IMPOSING A NOVEL LIMITATION ON THE ESTABLISHED
DOCTRINE SET FORTH IN THE FIRST SENTENCE.  IT IS ALSO POSSIBLE TO READ
IT AS DID MR. JUSTICE HARLAN IN HIS OPINION CONCURRING IN THE RESULT: 

     "THE SECOND POSSIBLE SOURCE OF CONFUSION IS THE COURT'S

  STATEMENT THAT 'OFFICER LASKY DID NOT ENGAGE IN AN UNRESTRAINED

  AND THOROUGH-GOING EXAMINATION OF PETERS AND HIS PERSONAL

  EFFECTS.'  (392 U.S.), AT 67.  SINCE THE COURT FOUND PROBABLE

  CAUSE TO ARREST PETERS, AND SINCE AN OFFICER ARRESTING ON

  PROBABLE CAUSE IS ENTITLED TO MAKE A VERY FULL INCIDENT SEARCH, I

  ASSUME THAT THIS IS MERELY A FACTUAL OBSERVATION.  AS A FACTUAL

MATTER, I AGREE WITH IT."  392 U.S., AT 77 (FOOTNOTE OMITTED). 

WE DO NOT BELIEVE THAT THE COURT IN PETERS INTENDED IN ONE
UNEXPLAINED AND UNELABORATED SENTENCE TO IMPOSE A NOVEL AND FAR
REACHING LIMITATION ON THE AUTHORITY TO SEARCH THE PERSON OF AN
ARRESTEE INCIDENT TO HIS LAWFUL ARREST.  WHILE THE LANGUAGE FROM PETERS
WAS QUOTED WITH APPROVAL IN CHIMEL V. CALIFORNIA, 395 U.S., AT 764, IT
IS PRECEDED BY A FULL EXPOSITION OF THE TRADITIONAL AND UNQUALIFIED
AUTHORITY OF THE ARRESTING OFFICER TO SEARCH THE ARRESTEE'S PERSON. 
ID., AT 763.  WE DO NOT BELIEVE THAT EITHER TERRY OR PETERS, WHEN
CONSIDERED IN THE LIGHT OF THE PREVIOUSLY DISCUSSED STATEMENTS OF THIS
COURT, JUSTIFIED THE SORT OF LIMITATION UPON THAT AUTHORITY WHICH THE
COURT OF APPEALS FASHIONED IN THIS CASE. 

        III 

VIRTUALLY ALL OF THE STATEMENTS OF THIS COURT AFFIRMING THE
EXISTENCE OF AN UNQUALIFIED AUTHORITY TO SEARCH INCIDENT TO A LAWFUL
ARREST ARE DICTA.  WE WOULD NOT, THEREFORE, BE FORECLOSED BY PRINCIPLES
OF STARE DECISIS FROM FURTHER EXAMINATION INTO HISTORY AND PRACTICE IN
ORDER TO SEE WHETHER THE SORT OF QUALIFICATIONS IMPOSED BY THE COURT OF
APPEALS IN THIS CASE WERE IN FACT INTENDED BY THE FRAMERS OF THE FOURTH
AMENDMENT OR RECOGNIZED IN CASES DECIDED PRIOR TO WEEKS.  UNFORTUNATELY
SUCH AUTHORITIES AS EXIST ARE SPARSE.  SUCH COMMON-LAW TREATISES AS
BLACKSTONE'S COMMENTARIES AND HOLMES' COMMON LAW ARE SIMPLY SILENT ON
THE SUBJECT.  POLLOCK AND MAITLAND, IN THEIR HISTORY OF ENGLISH LAW,
DESCRIBE THE LAW OF ARREST AS "ROUGH AND RUDE" BEFORE THE TIME OF
EDWARD I, BUT DO NOT ADDRESS THE AUTHORITY TO SEARCH INCIDENT TO
ARREST.  2 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 582 (2D
ED. 1909). 

THE ISSUE WAS APPARENTLY LITIGATED IN THE ENGLISH COURTS IN DILLON
V. O'BRIEN, 16 COX C.C. 245 (EXCH.  IRELAND, 1887), CITED IN WEEKS V.
UNITED STATES, SUPRA, THERE BARON PALLES SAID: 

"BUT THE INTEREST OF THE STATE IN THE PERSON CHARGED BEING BROUGHT
TO TRIAL IN DUE COURSE NECESSARILY EXTENDS, AS WELL TO THE PRESERVATION
OF MATERIAL EVIDENCE OF HIS GUILT OR INNOCENCE, AS TO HIS CUSTODY FOR
THE PURPOSE OF TRIAL.  HIS CUSTODY IS OF NO VALUE IF THE LAW IS
POWERLESS TO PREVENT THE ABSTRACTION OR DESTRUCTION OF THIS EVIDENCE,
WITHOUT WHICH A TRIAL WOULD BE NO MORE THAN AN EMPTY FORM.  BUT IF
THERE BE A RIGHT TO PRODUCTION OR PRESERVATION OF THIS EVIDENCE, I
CANNOT SEE HOW IT CAN BE ENFORCED OTHERWISE THAN BY CAPTURE."  16 COX
C.C., AT 250. 

SPALDING V. PRESTON, 21 VT. 9 (1848), REPRESENTS AN EARLY HOLDING IN
THIS COUNTRY THAT EVIDENCE MAY BE SEIZED FROM ONE WHO IS LAWFULLY
ARRESTED.  IN CLOSSON V. MORRISON, 47 N.H. 482 (1867), THE COURT MADE
THE FOLLOWING STATEMENT: 

"(WE THINK THAT AN OFFICER WOULD ALSO BE JUSTIFIED IN TAKING FROM A
PERSON WHOM HE HAD ARRESTED FOR CRIME, ANY DEADLY WEAPON HE MIGHT FIND
UPON HIM, SUCH AS A REVOLVER, A DIRK, A KNIFE, A SWORD CANE, A SLUNG
SHOT, OR A CLUB, THOUGH IT HAD NOT BEEN USED OR INTENDED TO BE USED IN
THE COMMISSION OF THE OFFENCE FOR WHICH THE PRISONER HAD BEEN ARRESTED,
AND EVEN THOUGH NO THREATS OF VIOLENCE TOWARDS THE OFFICER HAD BEEN
MADE.  A DUE REGARD FOR HIS OWN SAFETY ON THE PART OF THE OFFICER, AND
ALSO FOR THE PUBLIC SAFETY, WOULD JUSTIFY A SUFFICIENT SEARCH TO
ASCERTAIN IF SUCH WEAPONS WERE CARRIED ABOUT THE PERSON OF THE
PRISONER, OR WERE IN HIS POSSESSION, AND IF FOUND, TO SEIZE AND HOLD
THEM UNTIL THE PRISONER SHOULD BE DISCHARGED, OR UNTIL THEY COULD BE
OTHERWISE PROPERLY DISPOSED OF.  SPALDING V. PRESTON, 21 VT. 9, 16. 

     "SO WE THINK IT MIGHT BE WITH MONEY OR OTHER ARTICLES OF
VALUE,

  FOUND UPON THE PRISONER, BY MEANS OF WHICH, IF LEFT IN HIS

  POSSESSION, HE MIGHT PROCURE HIS ESCAPE, OR OBTAIN TOOLS, OR

  IMPLEMENTS, OR WEAPONS WITH WHICH TO EFFECT HIS ESCAPE.  WE THINK

  THE OFFICER ARRESTING A MAN FOR CRIME, NOT ONLY MAY, BUT

  FREQUENTLY SHOULD, MAKE SUCH SEARCHES AND SEIZURES; THAT IN MANY

  CASES THEY MIGHT BE REASONABLE AND PROPER, AND COURTS WOULD HOLD

HIM HARMLESS FOR SO DOING, WHEN HE ACTS IN GOOD FAITH, AND FROM A

  REGARD TO HIS OWN OR THE PUBLIC SAFETY, OR THE SECURITY OF HIS

  PRISONER."  47 N.H., AT 484 - 485. 

SIMILARLY IN HOLKER V. HENNESSEY, 141 MO. 527, 42 S.W. 1090 (1897),
THE SUPREME COURT OF MISSOURI SAID: 

     "GENERALLY SPEAKING, IN THE ABSENCE OF A STATUTE, AN OFFICER

  HAS NO RIGHT TO TAKE ANY PROPERTY FROM THE PERSON OF THE PRISONER

  EXCEPT SUCH AS MAY AFFORD EVIDENCE OF THE CRIME CHARGED, OR MEANS

  OF IDENTIFYING THE CRIMINAL, OR MAY BE HELPFUL IN MAKING AN

  ESCAPE."  ID., AT 539, 42 S.W., AT 1093. 

THEN ASSOCIATE JUDGE CARDOZO OF THE NEW YORK COURT OF APPEALS
SUMMARIZED HIS UNDERSTANDING OF THE HISTORICAL BASIS FOR THE AUTHORITY
TO SEARCH INCIDENT TO ARREST IN THESE WORDS: 

"THE BASIC PRINCIPLE IS THIS:  SEARCH OF THE PERSON IS UNLAWFUL WHEN
THE SEIZURE OF THE BODY IS A TRESPASS, AND THE PURPOSE OF THE SEARCH IS
TO DISCOVER GROUNDS AS YET UNKNOWN FOR ARREST OR ACCUSATION (CITATION
OMITTED).  SEARCH OF THE PERSON BECOMES LAWFUL WHEN GROUNDS FOR ARREST
AND ACCUSATION HAVE BEEN DISCOVERED, AND THE LAW IS IN THE ACT OF
SUBJECTING THE BODY OF THE ACCUSED TO ITS PHYSICAL DOMINION. 

     "THE DISTINCTION MAY SEEM SUBTLE, BUT IN TRUTH IT IS FOUNDED
IN

  SHREWD APPRECIATION OF THE NECESSITIES OF GOVERNMENT.  WE ARE NOT

  TO STRAIN AN IMMUNITY TO THE POINT AT WHICH HUMAN NATURE REBELS

  AGAINST HONORING IT IN CONDUCT.  THE PEACE OFFICER EMPOWERED TO

ARREST MUST BE EMPOWERED TO DISARM.  IF HE MAY DISARM, HE MAY

  SEARCH, LEST A WEAPON BE CONCEALED.  THE SEARCH BEING LAWFUL, HE

  RETAINS WHAT HE FINDS IF CONNECTED WITH THE CRIME."  PEOPLE V.

  CHIAGLES, 237 N.Y. 193, 197, 142 N.E. 583, 584 (1923). 

WHILE THESE EARLIER AUTHORITIES ARE SKETCHY, THEY TEND TO SUPPORT
THE BROAD STATEMENT OF THE AUTHORITY TO SEARCH INCIDENT TO ARREST FOUND
IN THE SUCCESSIVE DECISIONS OF THIS COURT, RATHER THAN THE RESTRICTIVE
ONE WHICH WAS APPLIED BY THE COURT OF APPEALS IN THIS CASE.  THE
SCARCITY OF CASE LAW BEFORE WEEKS IS DOUBTLESS DUE IN PART TO THE FACT
THAT THE EXCLUSIONARY RULE THERE ENUNCIATED HAD BEEN FIRST ADOPTED ONLY
11 YEARS EARLIER IN IOWA; BUT IT WOULD SEEM TO BE ALSO DUE IN PART TO
THE FACT THAT THE ISSUE WAS REGARDED AS WELL SETTLED.  /3/ 

THE COURT OF APPEALS IN EFFECT DETERMINED THAT THE ONLY REASON
SUPPORTING THE AUTHORITY FOR A FULL SEARCH INCIDENT TO LAWFUL ARREST
WAS THE POSSIBILITY OF DISCOVERY OF EVIDENCE OR FRUITS.  /4/
CONCLUDING THAT THERE COULD BE NO EVIDENCE OR FRUITS IN THE CASE OF AN
OFFENSE SUCH AS THAT WITH WHICH RESPONDENT WAS CHARGED, IT HELD THAT
ANY PROTECTIVE SEARCH WOULD HAVE TO BE LIMITED BY THE CONDITIONS LAID
DOWN IN TERRY FOR A SEARCH UPON LESS THAN PROBABLE CAUSE TO ARREST. 
QUITE APART FROM THE FACT THAT TERRY CLEARLY RECOGNIZED THE DISTINCTION
BETWEEN THE TWO TYPES OF SEARCHES, AND THAT A DIFFERENT RULE GOVERNED
ONE THAN GOVERNED THE OTHER, WE FIND ADDITIONAL REASON TO DISAGREE WITH
THE COURT OF APPEALS. 

THE JUSTIFICATION OR REASON FOR THE AUTHORITY TO SEARCH INCIDENT TO
A LAWFUL ARREST RESTS QUITE AS MUCH ON THE NEED TO DISARM THE SUSPECT
IN ORDER TO TAKE HIM INTO CUSTODY AS IT DOES ON THE NEED TO PRESERVE
EVIDENCE ON HIS PERSON FOR LATER USE AT TRIAL.  AGNELLO V. UNITED
STATES, 269 U.S. 20 (1925); ABEL V. UNITED STATES, 362 U.S. 217
(1960).  THE STANDARDS TRADITIONALLY GOVERNING A SEARCH INCIDENT TO
LAWFUL ARREST ARE NOT, THEREFORE, COMMUTED TO THE STRICTER TERRY
STANDARDS BY THE ABSENCE OF PROBABLE FRUITS OR FURTHER EVIDENCE OF THE
PARTICULAR CRIME FOR WHICH THE ARREST IS MADE. 

NOR ARE WE INCLINED, ON THE BASIS OF WHAT SEEMS TO US TO BE A RATHER
SPECULATIVE JUDGMENT, TO QUALIFY THE BREADTH OF THE GENERAL AUTHORITY
TO SEARCH INCIDENT TO A LAWFUL CUSTODIAL ARREST ON AN ASSUMPTION THAT
PERSONS ARRESTED FOR THE OFFENSE OF DRIVING WHILE THEIR LICENSES HAVE
BEEN REVOKED ARE LESS LIKELY TO POSSESS DANGEROUS WEAPONS THAN ARE
THOSE ARRESTED FOR OTHER CRIMES.  /5/  IT IS SCARCELY OPEN TO DOUBT
THAT THE DANGER TO AN OFFICER IS FAR GREATER IN THE CASE OF THE
EXTENDED EXPOSURE WHICH FOLLOWS THE TAKING OF A SUSPECT INTO CUSTODY
AND TRANSPORTING HIM TO THE POLICE STATION THAN IN THE CASE OF THE
RELATIVELY FLEETING CONTACT RESULTING FROM THE TYPICAL TERRY-TYPE
STOP.  THIS IS AN ADEQUATE BASIS FOR TREATING ALL CUSTODIAL ARRESTS
ALIKE FOR PURPOSES OF SEARCH JUSTIFICATION. 

BUT QUITE APART FROM THESE DISTINCTIONS, OUR MORE FUNDAMENTAL
DISAGREEMENT WITH THE COURT OF APPEALS ARISES FROM ITS SUGGESTION THAT
THERE MUST BE LITIGATED IN EACH CASE THE ISSUE OF WHETHER OR NOT THERE
WAS PRESENT ONE OF THE REASONS SUPPORTING THE AUTHORITY FOR A SEARCH OF
THE PERSON INCIDENT TO A LAWFUL ARREST.  WE DO NOT THINK THE LONG LINE
OF AUTHORITIES OF THIS COURT DATING BACK TO WEEKS, OR WHAT WE CAN GLEAN
FROM THE HISTORY OF PRACTICE IN THIS COUNTRY AND IN ENGLAND, REQUIRES
SUCH A CASE-BY-CASE ADJUDICATION.  A POLICE OFFICER'S DETERMINATION AS
TO HOW AND WHERE TO SEARCH THE PERSON OF A SUSPECT WHOM HE HAS ARRESTED
IS NECESSARILY A QUICK AD HOC JUDGMENT WHICH THE FOURTH AMENDMENT DOES
NOT REQUIRE TO BE BROKEN DOWN IN EACH INSTANCE INTO AN ANALYSIS OF EACH
STEP IN THE SEARCH.  THE AUTHORITY TO SEARCH THE PERSON INCIDENT TO A
LAWFUL CUSTODIAL ARREST, WHILE BASED UPON THE NEED TO DISARM AND TO
DISCOVER EVIDENCE, DOES NOT DEPEND ON WHAT A COURT MAY LATER DECIDE WAS
THE PROBABILITY IN A PARTICULAR ARREST SITUATION THAT WEAPONS OR
EVIDENCE WOULD IN FACT BE FOUND UPON THE PERSON OF THE SUSPECT.  A
CUSTODIAL ARREST OF A SUSPECT BASED ON PROBABLE CAUSE IS A REASONABLE
INTRUSION UNDER THE FOURTH AMENDMENT; THAT INTRUSION BEING LAWFUL, A
SEARCH INCIDENT TO THE ARREST REQUIRES NO ADDITIONAL JUSTIFICATION.  IT
IS THE FACT OF THE LAWFUL ARREST WHICH ESTABLISHES THE AUTHORITY TO
SEARCH, AND WE HOLD THAT IN THE CASE OF A LAWFUL CUSTODIAL ARREST A
FULL SEARCH OF THE PERSON IS NOT ONLY AN EXCEPTION TO THE WARRANT
REQUIREMENT OF THE FOURTH AMENDMENT, BUT IS ALSO A "REASONABLE" SEARCH
UNDER THAT AMENDMENT. 

        IV 

THE SEARCH OF RESPONDENT'S PERSON CONDUCTED BY OFFICER JENKS IN THIS
CASE AND THE SEIZURE FROM HIM OF THE HEROIN, WERE PERMISSIBLE UNDER
ESTABLISHED FOURTH AMENDMENT LAW.  WHILE THOROUGH, THE SEARCH PARTOOK
OF NONE OF THE EXTREME OR PATENTLY ABUSIVE CHARACTERISTICS WHICH WERE
HELD TO VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT IN
ROCHIN V. CALIFORNIA, 342 U.S. 165 (1952).  SINCE IT IS THE FACT OF
CUSTODIAL ARREST WHICH GIVES RISE TO THE AUTHORITY TO SEARCH, /6/  IT
IS OF NO MOMENT THAT JENKS DID NOT INDICATE ANY SUBJECTIVE FEAR OF THE
RESPONDENT OR THAT HE DID NOT HIMSELF SUSPECT THAT RESPONDENT WAS
ARMED.  /7/  HAVING IN THE COURSE OF A LAWFUL SEARCH COME UPON THE
CRUMPLED PACKAGE OF CIGARETTES, HE WAS ENTITLED TO INSPECT IT; AND WHEN
HIS INSPECTION REVEALED THE HEROIN CAPSULES, HE WAS ENTITLED TO SEIZE
THEM AS "FRUITS, INSTRUMENTALITIES, OR CONTRABAND" PROBATIVE OF
CRIMINAL CONDUCT.  HARRIS V. UNITED STATES, 331 U.S., AT 154 - 155;
WARDEN V. HAYDEN, 387 U.S. 294, 299, 307 (1967); ADAMS V. WILLIAMS, 407
U.S., AT 149.  THE JUDGMENT OF THE COURT OF APPEALS HOLDING OTHERWISE
IS REVERSED. 

/1/  THE COURT OF APPEALS NOTED THAT THERE WAS A DIFFERENCE IN THE
PRESENTATION OF THE FACTS IN THE VARIOUS PROCEEDINGS THAT WERE
CONDUCTED IN THE DISTRICT COURT.  COUNSEL FOR RESPONDENT ON APPEAL
STRESSED THAT RESPONDENT HAD A RECORD OF TWO PRIOR NARCOTICS
CONVICTIONS, AND SUGGESTED THAT OFFICER JENKS MAY HAVE BEEN AWARE OF
THAT RECORD THROUGH HIS INVESTIGATION OF CRIMINAL RECORDS, WHILE JENKS
WAS CHECKING OUT THE DISCREPANCIES IN THE BIRTHDATES ON THE OPERATOR'S
PERMIT AND ON THE SELECTIVE SERVICE CARD THAT HAD BEEN GIVEN TO HIM FOR
EXAMINATION WHEN HE HAD CONFRONTED THE RESPONDENT ON THE PREVIOUS
OCCASION.  RESPONDENT ARGUED BELOW THAT JENKS MAY HAVE USED THE
SUBSEQUENT TRAFFIC VIOLATION ARREST AS A MERE PRETEXT FOR A NARCOTICS
SEARCH WHICH WOULD NOT HAVE BEEN ALLOWED BY A NEUTRAL MAGISTRATE HAD
JENKS SOUGHT A WARRANT.  THE COURT OF APPEALS FOUND THAT JENKS HAD
DENIED HE HAD ANY SUCH MOTIVE, AND FOR THE PURPOSES OF ITS OPINION
ACCEPTED THE GOVERNMENT'S VERSION OF THAT FACTUAL QUESTION, SINCE EVEN
ACCEPTING THAT VERSION IT STILL FOUND THE SEARCH INVOLVED TO BE
UNCONSTITUTIONAL.  153 U.S. APP. D.C. 114, 120 N. 3, 471 F.2D 1082,
1088 N. 3.  WE THINK IT IS SUFFICIENT FOR PURPOSES OF OUR DECISION THAT
RESPONDENT WAS LAWFULLY ARRESTED FOR AN OFFENSE, AND THAT JENKS'
PLACING HIM IN CUSTODY FOLLOWING THAT ARREST WAS NOT A DEPARTURE FROM
ESTABLISHED POLICE DEPARTMENT PRACTICE.  SEE N. 2, INFRA.  WE LEAVE FOR
ANOTHER DAY QUESTIONS WHICH WOULD ARISE ON FACTS DIFFERENT FROM THESE. 
/2/  THE GOVERNMENT INTRODUCED TESTIMONY AT THE EVIDENTIARY HEARING
UPON THE ORIGINAL REMAND BY THE COURT OF APPEALS AS TO CERTAIN STANDARD
OPERATING PROCEDURES OF THE METROPOLITAN POLICE DEPARTMENT.  SERGEANT
DENNIS C. DONALDSON, A METROPOLITAN POLICE DEPARTMENT TRAINING DIVISION
INSTRUCTOR, TESTIFIED THAT WHEN A POLICE OFFICER MAKES "A FULL CUSTODY
ARREST,"  WHICH HE DEFINED AS ONE WHERE AN OFFICER "WOULD ARREST A
SUBJECT AND SUBSEQUENTLY TRANSPORT HIM TO A POLICE FACILITY FOR
BOOKING," THE OFFICER IS TRAINED TO MAKE A FULL "FIELD TYPE SEARCH": 

"Q.  WOULD YOU DESCRIBE THE PHYSICAL ACTS THE OFFICER IS

INSTRUCTED TO PERFORM WITH RESPECT TO THIS FIELD SEARCH IN A FULL

  CUSTODY ARREST SITUATION? 

     "A.  (SGT. DONALDSON).  BASICALLY, IT IS A THOROUGH SEARCH OF

  THE INDIVIDUAL.  WE WOULD EXPECT IN A FIELD SEARCH THAT THE

  OFFICER COMPLETELY SEARCH THE INDIVIDUAL AND INSPECT AREAS SUCH

AS BEHIND THE COLLAR, UNDERNEATH THE COLLAR, THE WAISTBAND OF THE

  TROUSERS, THE CUFFS, THE SOCKS AND SHOES.  THOSE ARE THE AREAS WE

  WOULD ASK A COMPLETE THOROUGH SEARCH OF. 

     "Q.  WHAT ARE THE INSTRUCTIONS IN A FIELD TYPE SEARCH
SITUATION

  WHEN AN OFFICER FEELS SOMETHING ON THE OUTSIDE OF THE GARMENT? 

     "A.  IF IT IS A FULL CUSTODY ARREST AND HE IS CONDUCTING A

  FIELD SEARCH, WE EXPECT HIM TO REMOVE ANYTHING AND EXAMINE IT TO

  DETERMINE EXACTLY WHAT IT IS. 

     "THE COURT:  THAT IS A FULL CUSTODY ARREST.  WHAT IS THE LAST
PART OF IT? 

     "THE WITNESS:  IN CONDUCTING A FIELD SEARCH, WHICH IS DONE ANY

  TIME THERE IS A FULL CUSTODY ARREST, WE EXPECT THE OFFICER TO

  EXAMINE ANYTHING HE MIGHT FIND ON THE SUBJECT. 

     "THE COURT:  WOULD HE DO THE SAME THING IN A PAT-DOWN SEARCH? 

     "THE WITNESS:  IF HE COULD DETERMINE IN HIS PAT-DOWN OR FRISK

 BY SQUEEZING THAT IT WAS NOT, IN FACT, A WEAPON THAT COULD BE

  USED AGAINST HIM, THEN WE DON'T INSTRUCT HIM TO GO FURTHER. 

     "THE COURT:  BUT IN A FIELD SEARCH, EVEN THOUGH HE MAY FEEL

  SOMETHING THAT HE BELIEVES IS NOT A WEAPON, IS HE INSTRUCTED TO

  TAKE IT OUT? 

     "THE WITNESS:  YES, SIR." 

SERGEANT DONALDSON TESTIFIED THAT OFFICERS ARE INSTRUCTED TO EXAMINE
THE "CONTENTS OF ALL OF THE POCKETS" OF THE ARRESTEE IN THE COURSE OF
THE FIELD SEARCH.  IT WAS STATED THAT THESE STANDARD OPERATING
PROCEDURES WERE INITIATED BY THE POLICE DEPARTMENT "(PRIMARILY, FOR
(THE OFFICER'S) OWN SAFETY AND, SECONDLY, FOR THE SAFETY OF THE
INDIVIDUAL HE HAS PLACED UNDER ARREST AND, THIRDLY, TO SEARCH FOR
EVIDENCE OF THE CRIME."  WHILE THE OFFICER IS INSTRUCTED TO MAKE A FULL
FIELD SEARCH OF THE PERSON OF THE INDIVIDUAL HE ARRESTS, HE IS
INSTRUCTED, AND POLICE DEPARTMENT REGULATIONS PROVIDE, THAT IN THE CASE
OF A FULL-CUSTODY ARREST FOR DRIVING AFTER REVOCATION, "AREAS BEYOND
(THE ARRESTEE'S) IMMEDIATE CONTROL SHOULD NOT BE SEARCHED BECAUSE THERE
IS NO PROBABLE CAUSE TO BELIEVE THAT THE VEHICLE CONTAINS FRUITS,
INSTRUMENTALITIES, CONTRABAND OR EVIDENCE OF THE OFFENSE OF DRIVING
AFTER REVOCATION."  THOSE REGULATIONS ALSO PROVIDE THAT IN THE CASE OF
SOME TRAFFIC OFFENSES, INCLUDING THE CRIME OF OPERATING A MOTOR VEHICLE
AFTER REVOCATION OF AN OPERATOR'S PERMIT, THE OFFICER SHALL MAKE A
SUMMARY ARREST OF THE VIOLATOR AND TAKE THE VIOLATOR, IN CUSTODY, TO
THE STATION HOUSE FOR BOOKING.  D.C. METROPOLITAN POLICE DEPARTMENT
GENERAL ORDER NO. 3, SERIES 1959 (APR. 24, 1959). 

SUCH OPERATING PROCEDURES ARE NOT, OF COURSE, DETERMINATIVE OF THE
CONSTITUTIONAL ISSUES PRESENTED BY THIS CASE. 

/3/  SEE T. TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 44
45 (1969). 

TAYLOR SUGGESTS THAT THERE "IS LITTLE REASON TO DOUBT THAT SEARCH OF
AN ARRESTEE'S PERSON AND PREMISES IS AS OLD AS THE INSTITUTION OF
ARREST ITSELF."  ID., AT 28.  "NEITHER IN THE REPORTED CASES NOR THE
LEGAL LITERATURE IS THERE ANY INDICATION THAT SEARCH OF THE PERSON OF
AN ARRESTEE, OR THE PREMISES IN WHICH HE WAS TAKEN, WAS EVER CHALLENGED
IN ENGLAND UNTIL THE END OF THE NINETEENTH CENTURY . . . (AND) THE
ENGLISH COURTS GAVE THE POINT SHORT SHRIFT."  ID., AT 29. 

/4/  WHERE THE ARREST IS MADE FOR A CRIME FOR WHICH IT IS REASONABLE
TO BELIEVE THAT EVIDENCE EXISTS, THE COURT OF APPEALS RECOGNIZES THAT
"WARRANTLESS INTRUSION INTO THE POCKETS OF THE ARRESTEE TO DISCOVER
SUCH EVIDENCE IS REASONABLE UNDER THE 'SEARCH INCIDENT' EXCEPTION." 
153 U.S. APP. D.C., AT 127, 471 F.2D, AT 1095.  THE COURT THEN STATES
THAT THE OFFICER MAY USE THIS "REASONABLE (EVIDENTIARY) INTRUSION" TO
SIMULTANEOUSLY LOOK FOR WEAPONS.  IBID. 

/5/  SUCH AN ASSUMPTION APPEARS AT LEAST QUESTIONABLE IN LIGHT OF
THE AVAILABLE STATISTICAL DATA CONCERNING ASSAULTS ON POLICE OFFICERS
WHO ARE IN THE COURSE OF MAKING ARRESTS.  THE DANGER TO THE POLICE
OFFICER FLOWS FROM THE FACT OF THE ARREST, AND ITS ATTENDANT PROXIMITY,
STRESS AND UNCERTAINTY, AND NOT FROM THE GROUNDS FOR ARREST.  ONE STUDY
CONCLUDES THAT APPROXIMATELY 30% OF THE SHOOTINGS OF POLICE OFFICERS
OCCUR WHEN AN OFFICER STOPS A PERSON IN AN AUTOMOBILE.  BRISTOW, POLICE
OFFICER SHOOTINGS--A TACTICAL EVALUATION, 54 J. CRIM. L.C. & P.S. 93
(1963), CITED IN ADAMS V. WILLIAMS, 407 U.S. 143, 148 (1972).  THE
GOVERNMENT IN ITS BRIEF NOTES THAT THE UNIFORM CRIME REPORTS, PREPARED
BY THE FEDERAL BUREAU OF INVESTIGATION, INDICATE THAT A SIGNIFICANT
PERCENTAGE OF MURDERS OF POLICE OFFICERS OCCURS WHEN THE OFFICERS ARE
MAKING TRAFFIC STOPS.  BRIEF FOR THE UNITED STATES 23.  THOSE REPORTS
INDICATE THAT DURING JANUARY--MARCH 1973, 35 POLICE OFFICERS WERE
MURDERED; 11 OF THOSE OFFICERS WERE KILLED WHILE ENGAGED IN TRAFFIC
STOPS.  IBID. 

/6/  THE OPINION OF THE COURT OF APPEALS ALSO DISCUSSED ITS
UNDERSTANDING OF THE LAW WHERE THE POLICE OFFICER MAKES WHAT THE COURT
CHARACTERIZED AS "A ROUTINE TRAFFIC STOP," I.E., WHERE THE OFFICER
WOULD SIMPLY ISSUE A NOTICE OF VIOLATION AND ALLOW THE OFFENDER TO
PROCEED.  SINCE IN THIS CASE THE OFFICER DID MAKE A FULL-CUSTODY ARREST
OF THE VIOLATOR, WE DO NOT REACH THE QUESTION DISCUSSED BY THE COURT OF
APPEALS. 

/7/  THE UNITED STATES CONCEDES THAT "IN SEARCHING RESPONDENT,
(OFFICER JENKS) WAS NOT MOTIVATED BY A FEELING OF IMMINENT DANGER AND
WAS NOT SPECIFICALLY LOOKING FOR WEAPONS."  BRIEF FOR THE UNITED STATES
34.  OFFICER JENKS TESTIFIED, "I JUST SEARCHED HIM (ROBINSON).  I
DIDN'T THINK ABOUT WHAT I WAS LOOKING FOR.  I JUST SEARCHED HIM." 
OFFICER JENKS ALSO TESTIFIED THAT UPON REMOVING THE CIGARETTE PACKAGE
FROM THE RESPONDENT'S CUSTODY, HE WAS STILL UNSURE WHAT WAS IN THE
PACKAGE, BUT THAT HE KNEW IT WAS NOT CIGARETTES. 

MR. JUSTICE POWELL, CONCURRING.  /0/ 

ALTHOUGH I JOIN THE OPINIONS OF THE COURT, I WRITE BRIEFLY TO
EMPHASIZE WHAT SEEMS TO ME TO BE THE ESSENTIAL PREMISE OF OUR
DECISIONS. 

THE FOURTH AMENDMENT SAFEGUARDS THE RIGHT OF "THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST
UNREASONABLE SEARCHES AND SEIZURES . . . ."  THESE ARE AREAS OF AN
INDIVIDUAL'S LIFE ABOUT WHICH HE ENTERTAINS LEGITIMATE EXPECTATIONS OF
PRIVACY.  I BELIEVE THAT AN INDIVIDUAL LAWFULLY SUBJECTED TO A
CUSTODIAL ARREST RETAINS NO SIGNIFICANT FOURTH AMENDMENT INTEREST IN
THE PRIVACY OF HIS PERSON.  UNDER THIS VIEW THE CUSTODIAL ARREST IS THE
SIGNIFICANT INTRUSION OF STATE POWER INTO THE PRIVACY OF ONE'S PERSON. 
IF THE ARREST IS LAWFUL, THE PRIVACY INTEREST GUARDED BY THE FOURTH
AMENDMENT IS SUBORDINATED TO A LEGITIMATE AND OVERRIDING GOVERNMENTAL
CONCERN.  NO REASON THEN EXISTS TO FRUSTRATE LAW ENFORCEMENT BY
REQUIRING SOME INDEPENDENT JUSTIFICATION FOR A SEARCH INCIDENT TO A
LAWFUL CUSTODIAL ARREST.  THIS SEEMS TO ME THE REASON THAT A VALID
ARREST JUSTIFIES A FULL SEARCH OF THE PERSON, EVEN IF THAT SEARCH IS
NOT NARROWLY LIMITED BY THE TWIN RATIONALES OF SEIZING EVIDENCE AND
DISARMING THE ARRESTEE.  /1/  THE SEARCH INCIDENT TO ARREST IS
REASONABLE UNDER THE FOURTH AMENDMENT BECAUSE THE PRIVACY INTEREST
PROTECTED BY THAT CONSTITUTIONAL GUARANTEE IS LEGITIMATELY ABATED BY
THE FACT OF ARREST.  /2/ 

/0/  THIS OPINION ALSO APPLIES TO NO. 71 - 1669, GUSTAFSON V.
FLORIDA, POST, P. 260. 

/1/  THE COURT OF APPEALS FOR THE NINTH CIRCUIT APTLY STATED THIS
RATIONALE IN CHARLES V. UNITED STATES, 278 F.2D 386, 388 - 389 (1960):

POWER OVER THE BODY OF THE ACCUSED IS THE ESSENCE OF HIS ARREST; THE
TWO CANNOT BE

  SEPARATED.  TO SAY THAT THE POLICE MAY CURTAIL THE LIBERTY OF THE
ACCUSED BUT REFRAIN FROM

IMPINGING UPON THE SANCTITY OF HIS POCKETS EXCEPT FOR ENUMERATED
REASONS IS TO IGNORE THE

  CUSTODIAL DUTIES WHICH DEVOLVE UPON ARRESTING AUTHORITIES. 
CUSTODY MUST OF NECESSITY BE

  ASSERTED INITIALLY OVER WHATEVER THE ARRESTED PARTY HAS IN HIS
POSSESSION AT THE TIME OF

  APPREHENSION.  ONCE THE BODY OF THE ACCUSED IS VALIDLY SUBJECTED
TO THE PHYSICAL DOMINION OF

  THE LAW, INSPECTIONS OF HIS PERSON, REGARDLESS OF PURPOSE, CANNOT
BE DEEMED UNLAWFUL, UNLESS

  THEY VIOLATE THE DICTATES OF REASON EITHER BECAUSE OF THEIR
NUMBER OR THEIR MANNER OF

  PERPETRATION."  (CITATION OMITTED.) 

/2/  IN GUSTAFSON, POST, P. 260, THE PETITIONER CONCEDED THE
VALIDITY OF THE CUSTODIAL ARREST, ALTHOUGH THAT CONCLUSION WAS NOT AS
SELF-EVIDENT AS IN ROBINSON.  GUSTAFSON WOULD HAVE PRESENTED A
DIFFERENT QUESTION IF THE PETITIONER COULD HAVE PROVED THAT HE WAS
TAKEN INTO CUSTODY ONLY TO AFFORD A PRETEXT FOR A SEARCH ACTUALLY
UNDERTAKEN FOR COLLATERAL OBJECTIVES.  BUT NO SUCH QUESTION IS BEFORE
US. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

CERTAIN FUNDAMENTAL PRINCIPLES HAVE CHARACTERIZED THIS COURT'S
FOURTH AMENDMENT JURISPRUDENCE OVER THE YEARS.  PERHAPS THE MOST BASIC
OF THESE WAS EXPRESSED BY MR. JUSTICE BUTLER, SPEAKING FOR A UNANIMOUS
COURT IN GO-BART CO. V. UNITED STATES, 282 U.S. 344 (1931):  "THERE IS
NO FORMULA FOR THE DETERMINATION OF REASONABLENESS.  EACH CASE IS TO BE
DECIDED ON ITS OWN FACTS AND CIRCUMSTANCES."  ID., AT 357.  AS WE
RECENTLY HELD:  "THE CONSTITUTIONAL VALIDITY OF A WARRANTLESS SEARCH IS
PREEMINENTLY THE SORT OF QUESTION WHICH CAN ONLY BE DECIDED IN THE
CONCRETE FACTUAL CONTEXT OF THE INDIVIDUAL CASE."  SIBRON V. NEW YORK,
392 U.S. 40, 59 (1968).  AND THE INTENSIVE, AT TIMES PAINSTAKING, CASE
BY-CASE ANALYSIS CHARACTERISTIC OF OUR FOURTH AMENDMENT DECISIONS
BESPEAKS OUR "JEALOUS REGARD FOR MAINTAINING THE INTEGRITY OF
INDIVIDUAL RIGHTS."  MAPP V. OHIO, 367 U.S. 643, 647 (1961).  SEE ALSO
WEEKS V. UNITED STATES, 232 U.S. 383, 393 (1914). 

IN THE PRESENT CASE, HOWEVER, THE MAJORITY TURNS ITS BACK ON THESE
PRINCIPLES, HOLDING THAT "THE FACT OF THE LAWFUL ARREST" ALWAYS
ESTABLISHES THE AUTHORITY TO CONDUCT A FULL SEARCH OF THE ARRESTEE'S
PERSON, REGARDLESS OF WHETHER IN A PARTICULAR CASE "THERE WAS PRESENT
ONE OF THE REASONS SUPPORTING THE AUTHORITY FOR A SEARCH OF THE PERSON
INCIDENT TO A LAWFUL ARREST."  ANTE, AT 235.  THE MAJORITY'S APPROACH
REPRESENTS A CLEAR AND MARKED DEPARTURE FROM OUR LONG TRADITION OF CASE
BY-CASE ADJUDICATION OF THE REASONABLENESS OF SEARCHES AND SEIZURES
UNDER THE FOURTH AMENDMENT.  I CONTINUE TO BELIEVE THAT "(THE SCHEME OF
THE FOURTH AMENDMENT BECOMES MEANINGFUL ONLY WHEN IT IS ASSURED THAT AT
SOME POINT THE CONDUCT OF THOSE CHARGED WITH ENFORCING THE LAWS CAN BE
SUBJECTED TO THE MORE DETACHED, NEUTRAL SCRUTINY OF A JUDGE WHO MUST
EVALUATE THE REASONABLENESS OF A PARTICULAR SEARCH OR SEIZURE IN LIGHT
OF THE PARTICULAR CIRCUMSTANCES."  TERRY V. OHIO, 392 U.S. 1, 21
(1968).  BECAUSE I FIND THE MAJORITY'S REASONING TO BE AT ODDS WITH
THESE FUNDAMENTAL PRINCIPLES, I MUST RESPECTFULLY DISSENT. 

        I 

ON APRIL 19, 1968, OFFICER RICHARD JENKS STOPPED A 1965 CADILLAC
DRIVEN BY RESPONDENT AT THE INTERSECTION OF 9TH AND U STREETS, N.W., IN
THE DISTRICT OF COLUMBIA, FOR WHAT WAS CALLED A "ROUTINE SPOT CHECK." 
AT THAT TIME, OFFICER JENKS EXAMINED RESPONDENT'S TEMPORARY OPERATOR'S
PERMIT, AUTOMOBILE REGISTRATION CARD, AND SELECTIVE SERVICE
CLASSIFICATION CARD.  ALTHOUGH HE PERMITTED RESPONDENT TO GO ON HIS
WAY, OFFICER JENKS PURSUED A DISCREPANCY HE HAD NOTED BETWEEN THE
"1938" DATE OF BIRTH GIVEN ON THE OPERATOR'S PERMIT AND THE "1927"
DATE OF BIRTH GIVEN ON THE SELECTIVE SERVICE CARD.  A CHECK OF POLICE
TRAFFIC RECORDS SHOWED THAT AN OPERATOR'S PERMIT ISSUED TO ONE WILLIE
ROBINSON, JR., BORN IN 1927, HAD BEEN REVOKED, AND THAT A TEMPORARY
OPERATOR'S PERMIT HAD SUBSEQUENTLY BEEN ISSUED TO ONE WILLIE ROBINSON,
BORN IN 1938.  THE PICTURES ON THE REVOKED PERMIT AND ON THE
APPLICATION FOR THE TEMPORARY PERMIT WERE OF THE SAME MAN--THE PERSON
STOPPED BY JENKS FOR THE ROUTINE CHECK ON APRIL 19.  HAVING
INVESTIGATED THE MATTER HIMSELF IN THIS FASHION, IT IS CLEAR THAT
OFFICER JENKS HAD PROBABLE CAUSE TO BELIEVE THAT RESPONDENT HAD
VIOLATED A PROVISION OF THE DISTRICT OF COLUMBIA MOTOR VEHICLE CODE
MAKING IT UNLAWFUL FOR ANY PERSON TO OPERATE A MOTOR VEHICLE IN THE
DISTRICT DURING THE PERIOD FOR WHICH HIS OPERATOR'S PERMIT IS REVOKED. 
D.C. CODE ANN. 40 - 302(D) (1967). 

FOUR DAYS LATER, ON APRIL 23, 1968, WHILE ON DUTY IN THEIR PATROL
CAR, OFFICER JENKS AND HIS PARTNER SAW RESPONDENT DRIVING THE SAME
VEHICLE.  THEY PULLED UP BEHIND RESPONDENT'S CAR AND SIGNALED IT TO
STOP.  FROM ALL INDICATIONS IN THE RECORD, RESPONDENT IMMEDIATELY
COMPLIED AND BROUGHT HIS CAR TO A STOP ALONGSIDE THE CURB, THE OFFICERS
PARKING THEIR PATROL CAR IMMEDIATELY BEHIND HIS. 

RESPONDENT GOT OUT OF HIS CAR AND WALKED BACK TOWARD THE PATROL
CAR.  BOTH OFFICER JENKS AND HIS PARTNER GOT OUT OF THE PATROL CAR AND
STARTED TOWARD RESPONDENT'S CAR.  OFFICER JENKS ASKED RESPONDENT FOR
HIS PERMIT AND REGISTRATION CARD AND, WHEN SHOWN THE SAME PERMIT
RESPONDENT HAD GIVEN HIM FOUR DAYS EARLIER, INFORMED RESPONDENT THAT HE
WAS UNDER ARREST FOR OPERATING A MOTOR VEHICLE AFTER REVOCATION OF HIS
OPERATOR'S PERMIT.     JENKS THEN BEGAN TO SEARCH RESPONDENT.  HIS
NORMAL PROCEDURE IN CONDUCTING A SEARCH OF AN ARRESTEE WOULD BE TO
"HAVE HIM SPREAD-EAGLE OVER A WALL OR SOMETHING OF THAT NATURE."  BUT
IN JENKS' OWN WORDS, "I THINK ALMOST EVERY SEARCH IS DIFFERENT.  IT
DEPENDS ON THE MAN'S SIZE AND THE NATURE OF THE CRIME."  SINCE HE HAD A
SUBSTANTIAL HEIGHT AND WEIGHT ADVANTAGE OVER RESPONDENT, AND BECAUSE
THE ARREST WAS ONLY FOR A TRAFFIC OFFENSE, JENKS CHOSE INSTEAD TO
CONDUCT THE SEARCH FACE TO FACE, IN CONTRAST TO HIS NORMAL PRACTICE. 

THE FIRST STEP IN THE SEARCH WAS FOR JENKS TO PLACE BOTH HIS HANDS
ON RESPONDENT'S CHEST AND BEGIN TO PAT HIM DOWN.  DURING THIS PATDOWN,
JENKS FELT SOMETHING IN THE LEFT BREAST POCKET OF RESPONDENT'S HEAVY
OVERCOAT.  JENKS LATER TESTIFIED THAT HE COULD NOT IMMEDIATELY TELL
WHAT WAS IN THE POCKET.  THE RECORD DOES INDICATE, HOWEVER, THAT THE
OBJECT DID NOT FEEL LIKE A GUN AND THAT JENKS HAD NO PARTICULAR
INDICATION IT WAS A WEAPON OF ANY KIND.  /1/  NONETHELESS, HE REACHED
INTO THE POCKET AND TOOK THE OBJECT OUT.  IT TURNED OUT TO BE A
CRUMPLED-UP CIGARETTE PACKAGE. 

WITH THE PACKAGE NOW IN HIS HANDS, JENKS COULD FEEL OBJECTS INSIDE
BUT COULD NOT TELL WHAT THEY WERE.  IT DOES NOT APPEAR THAT JENKS HAD
ANY REASON TO BELIEVE, OR DID IN FACT BELIEVE, THAT THE OBJECTS WERE
WEAPONS OF ANY SORT.  HE NEVERTHELESS OPENED UP THE PACKAGE AND LOOKED
INSIDE, THEREBY FINDING THE GELATIN CAPSULES OF HEROIN WHICH WERE
INTRODUCED AGAINST RESPONDENT AT HIS TRIAL FOR THE POSSESSION AND
FACILITATION OF CONCEALMENT OF HEROIN. 

        II 

MR. JUSTICE JACKSON, WRITING FOR THE COURT IN JOHNSON V. UNITED
STATES, 333 U.S. 10, 13 - 14 (1948), EXPLAINED THAT: 

     "THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT GRASPED

  BY ZEALOUS OFFICERS, IS NOT THAT IT DENIES LAW ENFORCEMENT THE

  SUPPORT OF THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM

  EVIDENCE.  ITS PROTECTION CONSISTS IN REQUIRING THAT THOSE

  INFERENCES BE DRAWN BY A NEUTRAL AND DETACHED MAGISTRATE INSTEAD

  OF BEING JUDGED BY THE OFFICER ENGAGED IN THE OFTEN COMPETITIVE

  ENTERPRISE OF FERRETING OUT CRIME . . . . WHEN THE RIGHT OF

  PRIVACY MUST REASONABLY YIELD TO THE RIGHT OF SEARCH IS, AS A

  RULE, TO BE DECIDED BY A JUDICIAL OFFICER, NOT BY A POLICEMAN OR

  GOVERNMENT ENFORCEMENT AGENT." 

SEE ALSO COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 449 (1971).  THE
MAJORITY'S FEAR OF OVERRULING THE "QUICK AD HOC JUDGMENT" OF THE POLICE
OFFICER IS THUS INCONSISTENT WITH THE VERY FUNCTION OF THE AMENDMENT-
TO ENSURE THAT THE QUICK AD HOC JUDGMENTS OF POLICE OFFICERS ARE
SUBJECT TO REVIEW AND CONTROL BY THE JUDICIARY. 

IN THE VAST MAJORITY OF CASES, THE DETERMINATION OF WHEN THE RIGHT
OF PRIVACY MUST REASONABLY YIELD TO THE RIGHT OF SEARCH IS REQUIRED TO
BE MADE BY A NEUTRAL JUDICIAL OFFICER BEFORE THE SEARCH IS CONDUCTED. 
SEE KATZ V. UNITED STATES, 389 U.S. 347, 356 - 357 (1967); AGNELLO V.
UNITED STATES, 269 U.S. 20, 33 (1925).  THE CONSTITUTION REQUIRES "THAT
THE DELIBERATE, IMPARTIAL JUDGMENT OF A JUDICIAL OFFICER . . . BE
INTERPOSED BETWEEN THE CITIZEN AND THE POLICE . . . ."  WONG SUN V.
UNITED STATES, 371 U.S. 471, 481 - 482 (1963). 

THE REQUIREMENT THAT THE POLICE SEEK PRIOR APPROVAL OF A SEARCH FROM
A JUDICIAL OFFICER IS, NO DOUBT, SUBJECT TO "A FEW SPECIFICALLY
ESTABLISHED AND WELL-DELINEATED EXCEPTIONS," KATZ V. UNITED STATES,
SUPRA, AT 357; INCLUDING SEARCHES OF A MOVING VEHICLE, CARROLL V.
UNITED STATES, 267 U.S. 132 (1925); SEARCHES IN CERTAIN EXIGENT
CIRCUMSTANCES, WARDEN V. HAYDEN, 387 U.S. 294, 298 - 299 (1967);
MCDONALD V. UNITED STATES, 335 U.S. 451, 454 - 455 (1948); AND SEARCHES
INCIDENT TO A LAWFUL ARREST, AGNELLO V. UNITED STATES, SUPRA; CHIMEL V.
CALIFORNIA, 395 U.S. 752 (1969).  BUT BECAUSE AN EXCEPTION IS INVOKED
TO JUSTIFY A SEARCH WITHOUT A WARRANT DOES NOT PRECLUDE FURTHER
JUDICIAL INQUIRY INTO THE REASONABLENESS OF THAT SEARCH.  IT IS THE
ROLE OF THE JUDICIARY, NOT OF POLICE OFFICERS, TO DELIMIT THE SCOPE OF
EXCEPTIONS TO THE WARRANT REQUIREMENT.  "(THE GENERAL REQUIREMENT THAT
A SEARCH WARRANT BE OBTAINED IS NOT LIGHTLY TO BE DISPENSED WITH, AND
'THE BURDEN IS ON THOSE SEEKING (AN) EXEMPTION (FROM THE REQUIREMENT)
TO SHOW THE NEED FOR IT . . . .'"  ID., AT 762, QUOTING UNITED STATES
V. JEFFERS, 342 U.S. 48, 51 (1951).  EXCEPTIONS TO THE WARRANT
REQUIREMENT ARE NOT TALISMANS PRECLUDING FURTHER JUDICIAL INQUIRY
WHENEVER THEY ARE INVOKED, SEE COOLIDGE V. NEW HAMPSHIRE, SUPRA, AT
461, BUT RATHER ARE "JEALOUSLY AND CAREFULLY DRAWN."  JONES V. UNITED
STATES, 357 U.S. 493, 499 (1958). 

CARRYING OUT OUR MANDATE OF DELINEATING THE PROPER SCOPE OF THE
SEARCH-INCIDENT-TO-ARREST EXCEPTION REQUIRES CONSIDERATION OF THE
PURPOSES OF THAT EXCEPTION AS THEY APPLY TO THE PARTICULAR SEARCH THAT
OCCURRED IN THIS CASE.  SEE CHIMEL V. CALIFORNIA, SUPRA, AT 762 - 763;
PRESTON V. UNITED STATES, 376 U.S. 364, 367 (1964).  YET THE MAJORITY,
RATHER THAN FOCUSING ON THE FACTS OF THIS CASE, PLACES GREAT EMPHASIS
ON THE POLICE DEPARTMENT ORDER WHICH INSTRUCTED OFFICER JENKS TO
CONDUCT A FULL SEARCH AND TO EXAMINE CAREFULLY EVERYTHING HE FOUND
WHENEVER MAKING AN IN-CUSTODY ARREST.  SEE ANTE, AT 221 AND N. 2.  BUT
THIS MODE OF ANALYSIS WAS EXPLICITLY REJECTED IN SIBRON V. NEW YORK,
392 U.S. 40 (1968).  THERE BOTH THE DEFENDANT AND THE STATE URGED THAT
THE PRINCIPAL ISSUE BEFORE US WAS THE CONSTITUTIONALITY OF A STATE
STATUTE WHICH AUTHORIZED THE SEARCH THERE IN QUESTION.  WE DECLINED,
HOWEVER, TO ENGAGE IN WHAT WE VIEWED "AS THE ABSTRACT AND UNPRODUCTIVE
EXERCISE" OF LAYING THE WORDS OF THE STATUTE NEXT TO THE FOURTH
AMENDMENT "IN AN EFFORT TO DETERMINE WHETHER THE TWO ARE IN SOME SENSE
COMPATIBLE."  ID., AT 59.  "OUR CONSTITUTIONAL INQUIRY," WE CONCLUDED,
"WOULD NOT BE FURTHERED HERE BY AN ATTEMPT TO PRONOUNCE JUDGMENT ON THE
WORDS OF THE STATUTE.  WE MUST CONFINE OUR REVIEW INSTEAD TO THE
REASONABLENESS OF THE SEARCHES AND SEIZURES WHICH UNDERLIE THESE TWO
CONVICTIONS."  ID., AT 62. 

THE MAJORITY ALSO SUGGESTS THAT THE COURT OF APPEALS REACHED A NOVEL
AND UNPRECEDENTED RESULT BY IMPOSING QUALIFICATIONS ON THE HISTORICALLY
RECOGNIZED AUTHORITY TO CONDUCT A FULL SEARCH INCIDENT TO A LAWFUL
ARREST.  NOTHING COULD BE FURTHER FROM THE TRUTH, AS THE COURT OF
APPEALS ITSELF WAS SO CAREFUL TO POINT OUT. 

ONE NEED NOT GO BACK TO BLACKSTONE'S COMMENTARIES, HOLMES' COMMON LAW,
OR POLLOCK & MAITLAND IN SEARCH OF PRECEDENT FOR THE APPROACH ADOPTED
BY THE COURT OF APPEALS.  INDEED, GIVEN THE FACT THAT MASS PRODUCTION
OF THE AUTOMOBILE DID NOT BEGIN UNTIL THE EARLY DECADES OF THE PRESENT
CENTURY, I FIND IT SOMEWHAT PUZZLING THAT THE MAJORITY EVEN LOOKS TO
THESE SOURCES FOR GUIDANCE ON THE ONLY QUESTION PRESENTED IN THIS CASE:
THE PERMISSIBLE SCOPE OF A SEARCH OF THE PERSON INCIDENT TO A LAWFUL
ARREST FOR VIOLATION OF A MOTOR VEHICLE REGULATION.  THE FACT IS THAT
THIS QUESTION HAS BEEN CONSIDERED BY SEVERAL STATE AND FEDERAL COURTS,
THE VAST MAJORITY OF WHICH HAVE HELD THAT, ABSENT SPECIAL
CIRCUMSTANCES, A POLICE OFFICER HAS NO RIGHT TO CONDUCT A FULL SEARCH
OF THE PERSON INCIDENT TO A LAWFUL ARREST FOR VIOLATION OF A MOTOR
VEHICLE REGULATION. 

IN BARNES V. STATE, 25 WIS. 2D 116, 130 N.W.2D 264 (1964), FOR
EXAMPLE, POLICE OFFICERS STOPPED A CAR FOR A BRAKE LIGHT VIOLATION. 
RATHER THAN SIMPLY ISSUE A CITATION, THE OFFICERS PLACED THE DRIVER
UNDER ARREST.  A FULL SEARCH OF THE DRIVER'S PERSON WAS THEN CONDUCTED,
INCLUDING SHINING A FLASHLIGHT INTO HIS OVERCOAT POCKET, DISCLOSING A
SMALL QUANTITY OF MARIHUANA AND A PACKAGE OF CIGARETTE PAPERS.  THE
SUPREME COURT OF WISCONSIN HELD THE SEARCH OF THE DRIVER'S POCKET
UNREASONABLE.  WHILE EXPRESSLY HOLDING THAT WHERE A TRAFFIC OFFENDER IS
ACTUALLY ARRESTED, AS DISTINGUISHED FROM BEING GIVEN A SUMMONS, IT IS
REASONABLE FOR THE ARRESTING OFFICER TO SEARCH HIS PERSON FOR WEAPONS,
NEVERTHELESS THE COURT HELD IT UNREASONABLE TO LOOK INSIDE THE DRIVER'S
OVERCOAT POCKET WITH A FLASHLIGHT.  "WE CANNOT CONCEIVE," THE COURT
SAID, "THAT THIS ASPECT OF THE SEARCH WAS A LEGITIMATE SEARCH FOR
WEAPONS . . . . WE REJECT THE STATE'S CONTENTION THAT ANY SEARCH OF THE
PERSON OF ONE LAWFULLY ARRESTED IS A VALID SEARCH."  ID., AT 126, 130
N.W.2D, AT 269. 

IN STATE V. CURTIS, 290 MINN. 429, 190 N.W.2D 631 (1971), POLICE
OFFICERS STOPPED A CAR WHICH HAD DEFECTIVE TAILLIGHTS AND WHICH HAD
MADE AN ILLEGAL RIGHT TURN.  THE OFFICERS DECIDED TO TAKE THE DRIVER
DOWN TO THE STATION HOUSE AND SEARCHED HIM FOR WEAPONS BEFORE PUTTING
HIM IN THE SQUAD CAR.  ONE OF THE OFFICERS FELT THE OUTSIDE OF THE
DRIVER'S POCKETS.  AS IN ROBINSON'S CASE, THE OFFICER "DETECTED SOME
OBJECT BUT COULDN'T TELL WHAT IT WAS.  IT DID NOT FEEL LIKE A GUN OR
KNIFE."  ID., AT 430, 190 N.W.2D, AT 632.  "NEITHER OFFICER EXPRESSED
ANY CONCERN FOR HIS PERSONAL SAFETY.  THERE WAS NO TESTIMONY THAT THEY
SUSPECTED DEFENDANT OF ANY OTHER CRIMINAL ACTIVITY OR WERE AWARE OF ANY
DANGEROUS PROPENSITIES ON HIS PART."  ID., AT 431, 190 N.W.2D, AT 633. 
NEVERTHELESS THE OFFICER REACHED INTO THE POCKET, RESULTING IN THE
DISCOVERY OF A PACKAGE OF MARIHUANA.  THE MINNESOTA SUPREME COURT HELD
THE SEARCH UNLAWFUL.  WHILE RECOGNIZING THE "CONCERN FOR THE INJURIES
AND LOSS OF LIFE EXPERIENCED BY POLICE OFFICERS IN FACE-TO-FACE
CONFRONTATIONS WITH TRAFFIC OFFENDERS," THE COURT HELD THAT "THE
VALIDITY OF A SEARCH FOR WEAPONS FOLLOWING A TRAFFIC ARREST DEPENDS ON
WHETHER THE OFFICER HAD REASONABLE GROUNDS TO BELIEVE A SEARCH WAS
NECESSARY FOR HIS OWN SAFETY OR TO PREVENT AN ESCAPE."  ID., AT 436 -
437, 190 N.W.2D, AT 636, CITING SHELTON V. STATE, 3 MD. APP. 394, 399,
239 A.2D 610, 613 (1968). 

OF LIKE IMPORT IS THE DECISION OF THE OREGON SUPREME COURT IN STATE
V. O'NEAL, 250 ORE.  163, 444 P.2D 951 (1968) (EN BANC).  HERE
DEFENDANT'S AUTOMOBILE WAS STOPPED BECAUSE IT HAD NO REAR LICENSE
PLATE.  WHEN ASKED TO PRODUCE AN OPERATOR'S LICENSE, THE DEFENDANT
PRODUCED A TEMPORARY OPERATOR'S LICENSE ISSUED TO ANOTHER PERSON WHICH
HAD EXPIRED SEVERAL YEARS EARLIER.  THE OFFICERS THEN ARRESTED
DEFENDANT AND PLACED HIM IN THE BACK SEAT OF THE POLICE CAR.  "ONE OF
THE OFFICERS GOT IN THE POLICE CAR AND ASKED THE DEFENDANT TO REMOVE
HIS MONEY FROM HIS WALLET AND GIVE HIS WALLET TO THE OFFICER.  THE
DEFENDANT DID SO AND THE OFFICER TOOK PAPERS FROM THE WALLET AND
EXAMINED THEM.  WHEN THE OFFICER UNFOLDED ONE PIECE OF PAPER A HALF
SMOKED MARIJUANA CIGARETTE FELL OUT."  ID., AT 164 - 165, 444 P.2D, AT
952.  THE COURT HELD THE SEARCH UNLAWFUL.  AGAIN, WHILE RECOGNIZING THE
OFFICER'S RIGHT TO CONDUCT A SEARCH INCIDENT TO ARREST IN ORDER TO
PROTECT THE OFFICER AND DEPRIVE THE PRISONER OF POTENTIAL MEANS OF
ESCAPE, THE COURT HELD: 

     "THE SEARCH OF THE WALLET OBVIOUSLY HAD NOTHING TO DO WITH THE

  OFFICERS'  SAFETY.  THE DEFENDANT TESTIFIED THAT THE OFFICERS

  'PATTED HIM DOWN' BEFORE PLACING HIM IN THE POLICE CAR.  THE

  OFFICERS DID NOT REMEMBER WHETHER THEY HAD OR HAD NOT.  IN ANY

  EVENT, IT IS DIFFICULT TO SEE HOW DEFENDANT'S WALLET COULD HAVE

  REASONABLY BEEN BELIEVED TO HAVE CONTAINED A WEAPON."  ID., AT

166, 444 P.2D, AT 953. 

SEE ALSO PEOPLE V. MARSH, 20 N.Y.2D 98, 228 N.E.2D 783 (1967); PEOPLE
V. SUPERIOR COURT OF LOS ANGELES COUNTY, 7 CAL.3D 186, 496 P.2D 1205
(1972); STATE V. QUINTANA, 92 ARIZ. 267, 376 P.2D 130 (1962) (EN BANC);
PEOPLE V. ZEIGLER, 358 MICH. 355, 100 N.W.2D 456 (1960).  THE TENTH
CIRCUIT HAS LIKEWISE STATED THAT IT IS "IN COMPLETE AGREEMENT WITH THE
PREVAILING FEDERAL AND STATE AUTHORITY WHICH CONDEMNS THE SEARCH OF
PERSONS AND AUTOMOBILES FOLLOWING ROUTINE TRAFFIC VIOLATIONS."  UNITED
STATES V. HUMPHREY, 409 F.2D 1055, 1058 (CA10 1969).  SEE ALSO AMADOR
GONZALEZ V. UNITED STATES, 391 F.2D 308, 315 (CA5 1968) (WISDOM, J.). 

ACCORDINGLY, I THINK IT DISINGENUOUS FOR THE COURT TO NOW PRONOUNCE
THAT WHAT PRECEDENTS EXIST ON THE QUESTION "TEND TO SUPPORT THE BROAD
STATEMENT OF THE AUTHORITY TO SEARCH INCIDENT TO ARREST FOUND IN THE
SUCCESSIVE DECISIONS OF THIS COURT, RATHER THAN THE RESTRICTIVE ONE
WHICH WAS APPLIED BY THE COURT OF APPEALS IN THIS CASE."  /2/  ANTE, AT
232 - 233.  IT IS DISQUIETING, TO SAY THE LEAST, TO SEE THE COURT AT
ONCE ADMIT THAT "(VIRTUALLY ALL OF THE STATEMENTS OF THIS COURT
AFFIRMING THE EXISTENCE OF AN UNQUALIFIED AUTHORITY TO SEARCH INCIDENT
TO A LAWFUL ARREST ARE DICTA" AND CONCEDE THAT WE ARE PRESENTED WITH AN
OPEN QUESTION ON WHICH "FURTHER EXAMINATION INTO HISTORY AND PRACTICE"
WOULD BE HELPFUL, YET THEN CONDUCT AN EXAMINATION INTO PRIOR PRACTICE
WHICH IS NOT ONLY WHOLLY SUPERFICIAL, BUT TOTALLY INACCURATE AND
MISLEADING. 

THE MAJORITY'S ATTEMPT TO AVOID CASE-BY-CASE ADJUDICATION OF FOURTH
AMENDMENT ISSUES IS NOT ONLY MISGUIDED AS A MATTER OF PRINCIPLE, BUT IS
ALSO DOOMED TO FAIL AS A MATTER OF PRACTICAL APPLICATION.  AS THE
MAJORITY ITSELF IS WELL AWARE, SEE ANTE, AT 221 N.1, THE POWERS GRANTED
THE POLICE IN THIS CASE ARE STRONG ONES, SUBJECT TO POTENTIAL ABUSE. 
ALTHOUGH, IN THIS PARTICULAR CASE, OFFICER JENKS WAS REQUIRED BY POLICE
DEPARTMENT REGULATIONS TO MAKE AN IN-CUSTODY ARREST RATHER THAN TO
ISSUE A CITATION, IN MOST JURISDICTIONS AND FOR MOST TRAFFIC OFFENSES
THE DETERMINATION OF WHETHER TO ISSUE A CITATION OR EFFECT A FULL
ARREST IS DISCRETIONARY WITH THE OFFICER.  THERE IS ALWAYS THE
POSSIBILITY THAT A POLICE OFFICER, LACKING PROBABLE CAUSE TO OBTAIN A
SEARCH WARRANT, WILL USE A TRAFFIC ARREST AS A PRETEXT TO CONDUCT A
SEARCH.  SEE, E.G., AMADOR-GONZALEZ V. UNITED STATES, SUPRA.  I SUGGEST
THIS POSSIBILITY NOT TO IMPUGN THE INTEGRITY OF OUR POLICE, BUT MERELY
TO POINT OUT THAT CASE-BY-CASE ADJUDICATION WILL ALWAYS BE NECESSARY TO
DETERMINE WHETHER A FULL ARREST WAS EFFECTED FOR PURELY LEGITIMATE
REASONS OR, RATHER, AS A PRETEXT FOR SEARCHING THE ARRESTEE.  "AN
ARREST MAY NOT BE USED AS A PRETEXT TO SEARCH FOR EVIDENCE."  UNITED
STATES V. LEFKOWITZ, 285 U.S. 452, 467 (1932).  SEE ALSO JONES V.
UNITED STATES, 357 U.S., AT 500; ABEL V. UNITED STATES, 362 U.S. 217,
226 AND 230 (1960); UNITED STATES V. RABINOWITZ, 339 U.S. 56, 82 (1950)
(FRANKFURTER, J., DISSENTING).  CF. CHIMEL V. CALIFORNIA, 395 U.S., AT
767 - 768.              III 

THE MAJORITY STATES THAT "(A) POLICE OFFICER'S DETERMINATION AS TO
HOW AND WHERE TO SEARCH THE PERSON OF A SUSPECT WHOM HE HAS ARRESTED IS
NECESSARILY A QUICK AD HOC JUDGMENT WHICH THE FOURTH AMENDMENT DOES NOT
REQUIRE TO BE BROKEN DOWN IN EACH INSTANCE INTO AN ANALYSIS OF EACH
STEP IN THE SEARCH."  /3/  ANTE, AT 235.  NO PRECEDENT IS CITED FOR
THIS BROAD ASSERTION--NOT SURPRISINGLY, SINCE THERE IS NONE.  INDEED,
WE ONLY RECENTLY REJECTED SUCH "A RIGID ALL-OR-NOTHING MODEL OF
JUSTIFICATION AND REGULATION UNDER THE AMENDMENT, (FOR) IT OBSCURES THE
UTILITY OF LIMITATIONS UPON THE SCOPE, AS WELL AS THE INITIATION, OF
POLICE ACTION AS A MEANS OF CONSTITUTIONAL REGULATION.  THIS COURT HAS
HELD IN THE PAST THAT A SEARCH WHICH IS REASONABLE AT ITS INCEPTION MAY
VIOLATE THE FOURTH AMENDMENT BY VIRTUE OF ITS INTOLERABLE INTENSITY AND
SCOPE."  TERRY V. OHIO, 392 U.S., AT 17 - 18.  AS WE THERE CONCLUDED,
"IN DETERMINING WHETHER THE SEIZURE AND SEARCH WERE 'UNREASONABLE' OUR
INQUIRY IS A DUAL ONE--WHETHER THE OFFICER'S ACTION WAS JUSTIFIED AT
ITS INCEPTION, AND WHETHER IT WAS REASONABLY RELATED IN SCOPE TO THE
CIRCUMSTANCES WHICH JUSTIFIED THE INTERFERENCE IN THE FIRST PLACE ." 
ID., AT 19-20. 

AS I VIEW THE MATTER, THE SEARCH IN THIS CASE DIVIDES INTO THREE
DISTINCT PHASES:  THE PATDOWN OF RESPONDENT'S COAT POCKET; THE REMOVAL
OF THE UNKNOWN OBJECT FROM THE POCKET; AND THE OPENING OF THE CRUMPLED
UP CIGARETTE PACKAGE. 

        A 

NO QUESTION IS RAISED HERE CONCERNING THE LAWFULNESS OF THE PATDOWN
OF RESPONDENT'S COAT POCKET.  THE COURT OF APPEALS UNANIMOUSLY AFFIRMED
THE RIGHT OF A POLICE OFFICER TO CONDUCT A LIMITED FRISK FOR WEAPONS
WHEN MAKING AN IN-CUSTODY ARREST, REGARDLESS OF THE NATURE OF THE CRIME
FOR WHICH THE ARREST WAS MADE.  AS IT SAID: 

"(IT WOULD SEEM CLEARLY UNREASONABLE TO EXPECT A POLICE OFFICER TO
PLACE A SUSPECT IN HIS SQUAD CAR FOR TRANSPORTATION TO THE STATIONHOUSE
WITHOUT FIRST TAKING REASONABLE MEASURES TO INSURE THAT THE SUSPECT IS
UNARMED.  WE THEREFORE CONCLUDE THAT WHENEVER A POLICE OFFICER, ACTING
WITHIN THE BOUNDS OF HIS AUTHORITY, MAKES AN IN-CUSTODY ARREST, HE MAY
ALSO CONDUCT A LIMITED FRISK OF THE SUSPECT'S OUTER CLOTHING IN ORDER
TO REMOVE ANY WEAPONS THE SUSPECT MAY HAVE IN HIS POSSESSION."  153
U.S. APP. D.C. 114, 130, 471 F.2D 1082, 1098 (1972) (FOOTNOTE OMITTED,
EMPHASIS IN ORIGINAL). 

        B 

WITH RESPECT TO THE REMOVAL OF THE UNKNOWN OBJECT FROM THE COAT
POCKET, THE FIRST ISSUE PRESENTED IS WHETHER THAT ASPECT OF THE SEARCH
CAN BE SUSTAINED AS PART OF THE LIMITED FRISK FOR WEAPONS.  THE WEAPONS
SEARCH APPROVED BY THE COURT OF APPEALS WAS MODELED UPON THE NARROWLY
DRAWN PROTECTIVE SEARCH FOR WEAPONS AUTHORIZED IN TERRY, WHICH CONSISTS
"OF A LIMITED PATTING OF THE OUTER CLOTHING OF THE SUSPECT FOR
CONCEALED OBJECTS WHICH MIGHT BE USED AS INSTRUMENTS OF ASSAULT."  SEE
SIBRON V. NEW YORK, 392 U.S., AT 65.  SEE ALSO TERRY, SUPRA, AT 30. 

IT APPEARS TO HAVE BEEN CONCEDED BY THE GOVERNMENT BELOW THAT THE
REMOVAL OF THE OBJECT FROM RESPONDENT'S COAT POCKET EXCEEDED THE SCOPE
OF A TERRY FRISK FOR WEAPONS, SINCE UNDER TERRY, AN OFFICER MAY NOT
REMOVE AN OBJECT FROM THE SUSPECT'S POCKETS UNLESS HE HAS REASON TO
BELIEVE IT TO BE A DANGEROUS WEAPON.  153 U.S. APP. D.C., AT 121 AND
N.9, 471 F.2D, AT 1089 AND N.9, CITING ALI MODEL CODE OF PRE
ARRAIGNMENT PROCEDURE 110.2(4) (PROPOSED OFFICIAL DRAFT NO. 1, 1972). 
CF. SIBRON V. NEW YORK, SUPRA, AT 65.  /4/ 

IN THE PRESENT CASE, HOWEVER, OFFICER JENKS HAD NO REASON TO BELIEVE
AND DID NOT IN FACT BELIEVE THAT THE OBJECT IN RESPONDENT'S COAT POCKET
WAS A WEAPON.  HE ADMITTED LATER THAT THE OBJECT DID NOT FEEL LIKE A
GUN.  SEE N.1, SUPRA.  IN FACT, HE DID NOT REALLY HAVE ANY THOUGHTS ONE
WAY OR ANOTHER ABOUT WHAT WAS IN THE POCKET.  AS JENKS HIMSELF
TESTIFIED, "I JUST SEARCHED HIM.  I DIDN'T THINK ABOUT WHAT I WAS
LOOKING FOR.  I JUST SEARCHED HIM."  SINCE THE REMOVAL OF THE OBJECT
FROM THE POCKET CANNOT BE JUSTIFIED AS PART OF A LIMITED TERRY WEAPONS
FRISK, THE QUESTION ARISES WHETHER IT IS REASONABLE FOR A POLICE
OFFICER, WHEN EFFECTING AN IN-CUSTODY ARREST OF A TRAFFIC OFFENDER, TO
MAKE A FULLER SEARCH OF THE PERSON THAN IS PERMITTED PURSUANT TO
TERRY. 

THE UNDERLYING RATIONALE OF A SEARCH INCIDENT TO ARREST OF A TRAFFIC
OFFENDER INITIALLY SUGGESTS AS REASONABLE A SEARCH WHOSE SCOPE IS
SIMILAR TO THE PROTECTIVE WEAPONS FRISK PERMITTED IN TERRY.  A SEARCH
INCIDENT TO ARREST, AS THE MAJORITY INDICATES, HAS TWO BASIC FUNCTIONS:
THE REMOVAL OF WEAPONS THE ARRESTEE MIGHT USE TO RESIST ARREST OR
EFFECT AN ESCAPE, AND THE SEIZURE OF EVIDENCE OR FRUITS OF THE CRIME
FOR WHICH THE ARREST IS MADE, SO AS TO PREVENT THEIR CONCEALMENT OR
DESTRUCTION.  SEE ANTE, AT 234; CHIMEL V. CALIFORNIA, 395 U.S., AT
763. 

THE GOVERNMENT DOES NOT NOW CONTEND THAT THE SEARCH OF RESPONDENT'S
POCKET CAN BE JUSTIFIED BY ANY NEED TO FIND AND SEIZE EVIDENCE IN ORDER
TO PREVENT ITS CONCEALMENT OR DESTRUCTION, FOR, AS THE COURT OF APPEALS
FOUND, THERE IS NO EVIDENCE OR FRUITS OF THE OFFENSE WITH WHICH
RESPONDENT WAS CHARGED.  THE ONLY RATIONALE FOR A SEARCH IN THIS CASE,
THEN, IS THE REMOVAL OF WEAPONS WHICH THE ARRESTEE MIGHT USE TO HARM
THE OFFICER AND ATTEMPT AN ESCAPE.  THIS RATIONALE, OF COURSE, IS
IDENTICAL TO THE RATIONALE OF THE SEARCH PERMITTED IN TERRY.  AS WE
SAID THERE, "THE SOLE JUSTIFICATION OF THE SEARCH IN THE PRESENT
SITUATION IS THE PROTECTION OF THE POLICE OFFICER AND OTHERS NEARBY,
AND IT MUST THEREFORE BE CONFINED IN SCOPE TO AN INTRUSION REASONABLY
DESIGNED TO DISCOVER GUNS, KNIVES, CLUBS, OR OTHER HIDDEN INSTRUMENTS
FOR THE ASSAULT OF THE POLICE OFFICER."  TERRY V. OHIO, SUPRA, AT 29. 
SINCE THE UNDERLYING RATIONALE OF A TERRY SEARCH AND THE SEARCH OF A
TRAFFIC VIOLATOR ARE IDENTICAL, THE COURT OF APPEALS HELD THAT THE
SCOPE OF THE SEARCHES MUST BE THE SAME.  AND IN VIEW OF ITS CONCLUSION
THAT THE REMOVAL OF THE OBJECT FROM RESPONDENT'S COAT POCKET EXCEEDED
THE SCOPE OF A LAWFUL TERRY FRISK, A CONCLUSION NOT DISPUTED BY THE
GOVERNMENT OR CHALLENGED BY THE MAJORITY HERE, THE PLURALITY OF THE
COURT OF APPEALS HELD THAT THE REMOVAL OF THE PACKAGE EXCEEDED THE
SCOPE OF A LAWFUL SEARCH INCIDENT TO ARREST OF A TRAFFIC VIOLATOR. 

THE PROBLEM WITH THIS APPROACH, HOWEVER, IS THAT IT IGNORES SEVERAL
SIGNIFICANT DIFFERENCES BETWEEN THE CONTEXT IN WHICH A SEARCH INCIDENT
TO ARREST FOR A TRAFFIC VIOLATION IS MADE, AND THE SITUATION PRESENTED
IN TERRY.  SOME OF THESE DIFFERENCES WOULD APPEAR TO SUGGEST PERMITTING
A MORE THOROUGH SEARCH IN THIS CASE THAN WAS PERMITTED IN TERRY; OTHER
DIFFERENCES SUGGEST A NARROWER, MORE LIMITED RIGHT TO SEARCH THAN WAS
THERE RECOGNIZED. 

THE MOST OBVIOUS DIFFERENCE BETWEEN THE TWO CONTEXTS RELATES TO
WHETHER THE OFFICER HAS CAUSE TO BELIEVE THAT THE INDIVIDUAL HE IS
DEALING WITH POSSESSES WEAPONS WHICH MIGHT BE USED AGAINST HIM.  TERRY
DID NOT PERMIT AN OFFICER TO CONDUCT A WEAPONS FRISK OF ANYONE HE
LAWFULLY STOPPED ON THE STREET, BUT RATHER, ONLY WHERE "HE HAS REASON
TO BELIEVE THAT HE IS DEALING WITH AN ARMED AND DANGEROUS INDIVIDUAL .
. . ."  392 U.S., AT 27.  WHILE THE POLICEMAN WHO ARRESTS A SUSPECTED
RAPIST OR ROBBER MAY WELL HAVE REASON TO BELIEVE HE IS DEALING WITH AN
ARMED AND DANGEROUS PERSON, CERTAINLY THIS DOES NOT HOLD TRUE WITH
EQUAL FORCE WITH RESPECT TO A PERSON ARRESTED FOR A MOTOR VEHICLE
VIOLATION OF THE SORT INVOLVED IN THIS CASE. 

NOR WAS THERE ANY PARTICULAR REASON IN THIS CASE TO BELIEVE THAT
RESPONDENT WAS DANGEROUS.  HE HAD NOT ATTEMPTED TO EVADE ARREST, BUT
HAD QUICKLY COMPLIED WITH THE POLICE BOTH IN BRINGING HIS CAR TO A STOP
AFTER BEING SIGNALED TO DO SO AND IN PRODUCING THE DOCUMENTS OFFICER
JENKS REQUESTED.  IN FACT, JENKS ADMITTED THAT HE SEARCHED RESPONDENT
FACE TO FACE RATHER THAN IN SPREAD-EAGLE FASHION BECAUSE HE HAD NO
REASON TO BELIEVE RESPONDENT WOULD BE VIOLENT. 

WHILE THIS DIFFERENCE BETWEEN THE SITUATION PRESENTED IN TERRY AND
THE CONTEXT PRESENTED IN THIS CASE WOULD TEND TO SUGGEST A LESSER
AUTHORITY TO SEARCH HERE THAN WAS PERMITTED IN TERRY, OTHER
DISTINCTIONS BETWEEN THE TWO CASES SUGGEST JUST THE OPPOSITE.  AS THE
COURT OF APPEALS NOTED, A CRUCIAL FEATURE DISTINGUISHING THE IN-CUSTODY
ARREST FROM THE TERRY CONTEXT "'IS NOT THE GREATER LIKELIHOOD THAT A
PERSON TAKEN INTO CUSTODY IS ARMED, BUT RATHER THE INCREASED LIKELIHOOD
OF DANGER TO THE OFFICER IF IN FACT THE PERSON IS ARMED'"  153 U.S.
APP. D.C., AT 130, 471 F.2D, AT 1098, QUOTING PEOPLE V. SUPERIOR COURT
OF LOS ANGELES COUNTY, 7 CAL. 3D, AT 214, 496 P.2D, AT 1225 (WRIGHT, C.
J., CONCURRING) (EMPHASIS IN ORIGINAL).  A TERRY STOP INVOLVES A
MOMENTARY ENCOUNTER BETWEEN OFFICER AND SUSPECT, WHILE AN IN-CUSTODY
ARREST PLACES THE TWO IN CLOSE PROXIMITY FOR A MUCH LONGER PERIOD OF
TIME.  IF THE INDIVIDUAL HAPPENS TO HAVE A WEAPON ON HIS PERSON, HE
WILL CERTAINLY HAVE MUCH MORE OPPORTUNITY TO USE IT AGAINST THE OFFICER
IN THE IN-CUSTODY SITUATION.  THE PROLONGED PROXIMITY ALSO MAKES IT
MORE LIKELY THAT THE INDIVIDUAL WILL BE ABLE TO EXTRICATE ANY SMALL
HIDDEN WEAPON WHICH MIGHT GO UNDETECTED IN A WEAPONS FRISK, SUCH AS A
SAFETY PIN OR RAZOR BLADE.  IN ADDITION, A SUSPECT TAKEN INTO CUSTODY
MAY FEEL MORE THREATENED BY THE SERIOUS RESTRAINT ON HIS LIBERTY THAN A
PERSON WHO IS SIMPLY STOPPED BY AN OFFICER FOR QUESTIONING, AND MAY
THEREFORE BE MORE LIKELY TO RESORT TO FORCE. 

THUS, IN SOME SENSES THERE IS LESS NEED FOR A WEAPONS SEARCH IN THE
IN-CUSTODY TRAFFIC ARREST SITUATION THAN IN A TERRY CONTEXT; WHILE IN
OTHER WAYS, THERE IS A GREATER NEED.  BALANCING THESE COMPETING
CONSIDERATIONS IN ORDER TO DETERMINE WHAT IS A REASONABLE WARRANTLESS
SEARCH IN THE TRAFFIC ARREST CONTEXT IS A DIFFICULT PROCESS, ONE FOR
WHICH THERE MAY BE NO EASY ANALYTICAL GUIDEPOSTS.  WE ARE DEALING WITH
FACTORS NOT EASILY QUANTIFIED AND, THEREFORE, NOT EASILY WEIGHED ONE
AGAINST THE OTHER.  AND THE COMPETING INTERESTS WE ARE PROTECTING--THE
INDIVIDUAL'S INTEREST IN REMAINING FREE FROM UNNECESSARILY INTRUSIVE
INVASIONS OF PRIVACY AND SOCIETY'S INTEREST THAT POLICE OFFICERS NOT
TAKE UNNECESSARY RISKS IN THE PERFORMANCE OF THEIR DUTIES--ARE EACH
DESERVING OF OUR MOST SERIOUS ATTENTION AND DO NOT THEMSELVES TIP THE
BALANCE IN ANY PARTICULAR DIRECTION. 

AS WILL BE EXPLAINED MORE FULLY BELOW, I DO NOT THINK IT NECESSARY
TO SOLVE THIS BALANCING EQUATION IN THIS PARTICULAR CASE.  IT IS
IMPORTANT TO NOTE, HOWEVER, IN VIEW OF THE REASONING ADOPTED BY THE
MAJORITY, THAT AVAILABLE EMPIRICAL EVIDENCE SUPPORTS THE RESULT REACHED
BY THE PLURALITY OF THE COURT OF APPEALS, RATHER THAN THE RESULT
REACHED BY THE COURT TODAY. 

THE MAJORITY RELIES ON STATISTICS INDICATING THAT A SIGNIFICANT
PERCENTAGE OF MURDERS OF POLICE OFFICERS OCCURS WHEN THE OFFICERS ARE
MAKING TRAFFIC STOPS.  BUT THESE STATISTICS ONLY CONFIRM WHAT WE
RECOGNIZED IN TERRY--THAT "AMERICAN CRIMINALS HAVE A LONG TRADITION OF
ARMED VIOLENCE, AND EVERY YEAR IN THIS COUNTRY MANY LAW ENFORCEMENT
OFFICERS ARE KILLED IN THE LINE OF DUTY, AND THOUSANDS MORE ARE
WOUNDED."  TERRY V. OHIO, SUPRA, AT 23.  AS THE VERY NEXT SENTENCE IN
TERRY RECOGNIZED, HOWEVER, "VIRTUALLY ALL OF THESE DEATHS AND A
SUBSTANTIAL PORTION OF THE INJURIES ARE INFLICTED WITH GUNS AND KNIVES,
THE VERY TYPE OF WEAPONS WHICH WILL NOT GO UNDETECTED IN A PROPERLY
CONDUCTED WEAPONS FRISK.  /5/  IT REQUIRES MORE THAN CITATION TO THESE
STATISTICS, THEN, TO SUPPORT THE PROPOSITION THAT IT IS REASONABLE FOR
POLICE OFFICERS TO CONDUCT MORE THAN A TERRY-TYPE FRISK FOR WEAPONS
WHEN SEEKING TO DISARM A TRAFFIC OFFENDER WHO IS TAKEN INTO CUSTODY. 

        C 

THE MAJORITY OPINION FAILS TO RECOGNIZE THAT THE SEARCH CONDUCTED BY
OFFICER JENKS DID NOT MERELY INVOLVE A SEARCH OF RESPONDENT'S PERSON. 
IT ALSO INCLUDED A SEPARATE SEARCH OF EFFECTS FOUND ON HIS PERSON.  AND
EVEN WERE WE TO ASSUME, ARGUENDO, THAT IT WAS REASONABLE FOR JENKS TO
REMOVE THE OBJECT HE FELT IN RESPONDENT'S POCKET, CLEARLY THERE WAS NO
JUSTIFICATION CONSISTENT WITH THE FOURTH AMENDMENT WHICH WOULD
AUTHORIZE HIS OPENING THE PACKAGE AND LOOKING INSIDE. 

TO BEGIN WITH, AFTER JENKS HAD THE CIGARETTE PACKAGE IN HIS HANDS,
THERE IS NO INDICATION THAT HE HAD REASON TO BELIEVE OR DID IN FACT
BELIEVE THAT THE PACKAGE CONTAINED A WEAPON.  MORE IMPORTANTLY, EVEN IF
THE CRUMPLED-UP CIGARETTE PACKAGE HAD IN FACT CONTAINED SOME SORT OF
SMALL WEAPON, IT WOULD HAVE BEEN IMPOSSIBLE FOR RESPONDENT TO HAVE USED
IT ONCE THE PACKAGE WAS IN THE OFFICER'S HANDS.  OPENING THE PACKAGE,
THEREFORE, DID NOT FURTHER THE PROTECTIVE PURPOSE OF THE SEARCH.  EVEN
THE DISSENTING OPINION IN THE COURT OF APPEALS CONCEDED THAT "SINCE THE
PACKAGE WAS NOW IN THE OFFICER'S POSSESSION, ANY RISK OF THE PRISONER'S
USE OF A WEAPON IN THIS PACKAGE HAD BEEN ELIMINATED."  /6/  153 U.S.
APP. D.C., AT 150, 471 F.2D, AT 1118 (WILKEY, J., DISSENTING). 

IT IS SUGGESTED, HOWEVER, THAT SINCE THE CUSTODIAL ARREST ITSELF
REPRESENTS A SIGNIFICANT INTRUSION INTO THE PRIVACY OF THE PERSON, ANY
ADDITIONAL INTRUSION BY WAY OF OPENING OR EXAMINING EFFECTS FOUND ON
THE PERSON IS NOT WORTHY OF CONSTITUTIONAL PROTECTION.  BUT SUCH AN
APPROACH WAS EXPRESSLY REJECTED BY THE COURT IN CHIMEL.  THERE IT WAS
SUGGESTED THAT SINCE THE POLICE HAD LAWFULLY ENTERED PETITIONER'S HOUSE
TO EFFECT AN ARREST, THE ADDITIONAL INVASION OF PRIVACY STEMMING FROM
AN ACCOMPANYING SEARCH OF THE ENTIRE HOUSE WAS INCONSEQUENTIAL.  THE
COURT ANSWERED:  "(WE CAN SEE NO REASON WHY, SIMPLY BECAUSE SOME
INTERFERENCE WITH AN INDIVIDUAL'S PRIVACY AND FREEDOM OF MOVEMENT HAS
LAWFULLY TAKEN PLACE, FURTHER INTRUSIONS SHOULD AUTOMATICALLY BE
ALLOWED DESPITE THE ABSENCE OF A WARRANT THAT THE FOURTH AMENDMENT
WOULD OTHERWISE REQUIRE."  395 U.S., AT 766 - 767, N.12.     THE FOURTH
AMENDMENT PRESERVES THE RIGHT OF "THE PEOPLE TO BE SECURE IN THEIR
PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES . . . ."  CHIMEL ESTABLISHED THE PRINCIPLE THAT THE LAWFUL
RIGHT OF THE POLICE TO INTERFERE WITH THE SECURITY OF THE PERSON DID
NOT, STANDING ALONE, AUTOMATICALLY CONFER THE RIGHT TO INTERFERE WITH
THE SECURITY AND PRIVACY OF HIS HOUSE.  HENCE, THE MERE FACT OF AN
ARREST SHOULD BE NO JUSTIFICATION, IN AND OF ITSELF, FOR INVADING THE
PRIVACY OF THE INDIVIDUAL'S PERSONAL EFFECTS. 

THE GOVERNMENT ARGUES THAT IT IS DIFFICULT TO SEE WHAT
CONSTITUTIONALLY PROTECTED "EXPECTATION OF PRIVACY" A PRISONER HAS IN
THE INTERIOR OF A CIGARETTE PACK.  ONE WONDERS IF THE RESULT IN THIS
CASE WOULD HAVE BEEN THE SAME WERE RESPONDENT A BUSINESSMAN WHO WAS
LAWFULLY TAKEN INTO CUSTODY FOR DRIVING WITHOUT A LICENSE AND WHOSE
WALLET WAS TAKEN FROM HIM BY THE POLICE.  WOULD IT BE REASONABLE FOR
THE POLICE OFFICER, BECAUSE OF THE POSSIBILITY THAT A RAZOR BLADE WAS
HIDDEN SOMEWHERE IN THE WALLET, TO OPEN IT, REMOVE ALL THE CONTENTS,
AND EXAMINE EACH ITEM CAREFULLY?  OR SUPPOSE A LAWYER LAWFULLY ARRESTED
FOR A TRAFFIC OFFENSE IS FOUND TO HAVE A SEALED ENVELOPE ON HIS
PERSON.  WOULD IT BE PERMISSIBLE FOR THE ARRESTING OFFICER TO TEAR OPEN
THE ENVELOPE IN ORDER TO MAKE SURE THAT IT DID NOT CONTAIN A
CLANDESTINE WEAPON--PERHAPS A PIN OR A RAZOR BLADE?  CF. HARRIS V.
UNITED STATES, 331 U.S. 145 (1947); CHIMEL V. CALIFORNIA, SUPRA, AT
758.  WOULD IT NOT BE MORE CONSONANT WITH THE PURPOSE OF THE FOURTH
AMENDMENT AND THE LEGITIMATE NEEDS OF THE POLICE TO REQUIRE THE
OFFICER, IF HE HAS ANY QUESTION WHATSOEVER ABOUT WHAT THE WALLET OR
LETTER CONTAINS, TO HOLD ON TO IT UNTIL THE ARRESTEE IS BROUGHT TO THE
PRECINCT STATION?  /7/ 

I, FOR ONE, CANNOT CHARACTERIZE ANY OF THESE INTRUSIONS INTO THE
PRIVACY OF AN INDIVIDUAL'S PAPERS AND EFFECTS AS BEING NEGLIGIBLE
INCIDENTS TO THE MORE SERIOUS INTRUSION INTO THE INDIVIDUAL'S PRIVACY
STEMMING FROM THE ARREST ITSELF.  NOR CAN ANY PRINCIPLED DISTINCTION BE
DRAWN BETWEEN THE HYPOTHETICAL SEARCHES I HAVE POSED AND THE SEARCH OF
THE CIGARETTE PACKAGE IN THIS CASE.  THE ONLY REASONED DISTINCTION IS
BETWEEN WARRANTLESS SEARCHES WHICH SERVE LEGITIMATE PROTECTIVE AND
EVIDENTIARY FUNCTIONS AND THOSE THAT DO NOT.  SEE CHIMEL, SUPRA, AT
766. 

THE SEARCH CONDUCTED BY OFFICER JENKS IN THIS CASE WENT FAR BEYOND
WHAT WAS REASONABLY NECESSARY TO PROTECT HIM FROM HARM OR TO ENSURE
THAT RESPONDENT WOULD NOT EFFECT AN ESCAPE FROM CUSTODY.  IN MY VIEW,
IT THEREFORE FELL OUTSIDE THE SCOPE OF A PROPERLY DRAWN "SEARCH
INCIDENT TO ARREST" EXCEPTION TO THE FOURTH AMENDMENT'S WARRANT
REQUIREMENT.  I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS
HOLDING THAT THE FRUITS OF THE SEARCH SHOULD HAVE BEEN SUPPRESSED AT
RESPONDENT'S TRIAL. 

/1/  AT THE SUPPRESSION HEARING, OFFICER JENKS WAS SHOWN A SMALL
DERRINGER AND WAS ASKED, AFTER THE GUN WAS PLACED IN A COAT POCKET,
"WHETHER OR NOT IT FEELS LIKE THE LUMP YOU FELT IN MR. ROBINSON'S
POCKET THE NIGHT YOU ARRESTED HIM?"  JENKS ANSWERED THAT THE OBJECT
"DOES NOT FEEL THE SAME" BUT RATHER FELT "HARDER," "LARGER," AND "(MUCH
MORE SUSPICIOUS." 

/2/  EVEN THE COURT'S ATTEMPT TO DIP INTO THE ENGLISH COMMON LAW IS
SELECTIVE.  THE POWER TO CONDUCT A SEARCH INCIDENT TO ARREST WAS
LITIGATED IN LEIGH V. COLE, 6 COX C.C. 329 (OXFORD CIRCUIT 1853), A
CIVIL CASE IN WHICH THE PLAINTIFF, A LAWYER, WAS STOPPED WHILE ON THE
ROAD AND ARRESTED BY DEFENDANT SUPERINTENDENT OF POLICE.  AFTER THE
PLAINTIFF WAS TAKEN TO THE STATION HOUSE, A POLICE CONSTABLE SEARCHED
HIM, AT THE DEFENDANT'S DIRECTION, AND A TOBACCO BOX AND A PIECE OF
PAPER WERE TAKEN FROM HIM.  IN INSTRUCTING THE JURY, THE LEARNED JUDGE
STATED:  "WITH RESPECT TO SEARCHING A PRISONER, THERE IS NO DOUBT THAT
A MAN WHEN IN CUSTODY MAY SO CONDUCT HIMSELF, BY REASON OF VIOLENCE OF
LANGUAGE OR CONDUCT, THAT A POLICE OFFICER MAY REASONABLY THINK IT
PRUDENT AND RIGHT TO SEARCH HIM, IN ORDER TO ASCERTAIN WHETHER HE HAS
ANY WEAPON WITH WHICH HE MIGHT DO MISCHIEF TO THE PERSON OR COMMIT A
BREACH OF THE PEACE; BUT AT THE SAME TIME IT IS QUITE WRONG TO SUPPOSE
THAT A GENERAL RULE CAN BE APPLIED TO SUCH A CASE.  EVEN WHEN A MAN IS
CONFINED FOR BEING DRUNK AND DISORDERLY, IT IS NOT CORRECT TO SAY THAT
HE MUST SUBMIT TO THE DEGRADATION OF BEING SEARCHED, AS THE SEARCHING
OF SUCH A PERSON MUST DEPEND UPON ALL THE CIRCUMSTANCES OF THE CASE." 
ID., AT 332. 

/3/  THE MAJORITY'S REFERENCE TO THE QUICK AD HOC JUDGMENT OF THE
POLICE OFFICER MAY BE READ AS AN EXPRESSION OF DOUBT WHETHER THIS KIND
OF ON-THE-STREET POLICE ACTIVITY CAN EFFECTIVELY BE CONTROLLED BY COURT
IMPOSED STANDARDS.  THIS PROBLEM WAS DISCUSSED IN TERRY V. OHIO, 392
U.S. 1 (1968), WHERE WE RECOGNIZED "THE LIMITATIONS OF THE JUDICIAL
FUNCTION IN CONTROLLING THE MYRIAD DAILY SITUATIONS IN WHICH POLICEMEN
AND CITIZENS CONFRONT EACH OTHER ON THE STREET."  ID., AT 12.  BUT AS
WE CONCLUDED THERE, EVEN THOUGH "(NO JUDICIAL OPINION CAN COMPREHEND
THE PROTEAN VARIETY OF THE STREET ENCOUNTER, . . . COURTS STILL RETAIN
THEIR TRADITIONAL RESPONSIBILITY TO GUARD AGAINST POLICE CONDUCT . . .
WHICH TRENCHES UPON PERSONAL SECURITY WITHOUT THE OBJECTIVE EVIDENTIARY
JUSTIFICATION WHICH THE CONSTITUTION REQUIRES.  WHEN SUCH CONDUCT IS
IDENTIFIED, IT MUST BE CONDEMNED BY THE JUDICIARY AND ITS FRUITS MUST
BE EXCLUDED FROM EVIDENCE IN CRIMINAL TRIALS."  ID. AT 15. 

/4/  THIS WAS ALSO THE POSITION OF THE POLICE DEPARTMENT ITSELF. 
SERGEANT DONALDSON, A POLICE DEPARTMENT TRAINING DIVISION INSTRUCTOR,
TESTIFIED: 

"IF (THE OFFICER) COULD DETERMINE IN HIS PAT-DOWN OR FRISK BY
SQUEEZING THAT IT WAS NOT, IN FACT, A WEAPON THAT COULD BE USED AGAINST
HIM, THEN WE DON'T INSTRUCT HIM TO GO FURTHER." 

/5/  THE UNIFORM CRIME REPORTS PREPARED BY THE FEDERAL BUREAU OF
INVESTIGATION WHICH ARE RELIED ON BY THE MAJORITY, SEE ANTE, AT 234
N.5, INDICATE THAT 112 POLICE OFFICERS WERE KILLED NATIONWIDE IN 1972. 
OF THESE, 108 WERE KILLED BY FIREARMS.  TWO OF THE REMAINING FOUR WERE
KILLED WITH KNIVES, AND THE LAST TWO CASES INVOLVED A BOMB AND AN
AUTOMOBILE. 

/6/  THE DISSENT ARGUED, HOWEVER, THAT "FURTHER INSPECTION OF THE
PACKAGE WAS STILL JUSTIFIABLE AS A PROTECTIVE MEASURE.  IF THE PACKAGE
HAD CONTAINED A RAZOR BLADE, OR LIVE BULLETS, THE OFFICER WOULD HAVE
BEEN ALERTED TO SEARCH ROBINSON MUCH MORE THOROUGHLY SINCE THE
POSSIBILITY OF THERE BEING OTHER WEAPONS CONCEALED ON HIS PERSON WOULD
INCREASE."  153 U.S. APP. D.C., AT 150, 471 F.2D, AT 1118 (EMPHASIS IN
ORIGINAL).  BUT AS CHIEF JUDGE BAZELON INDICATED IN HIS OPINION BELOW,
THIS KIND OF REASONING WOULD RENDER MEANINGLESS SCOPE LIMITATIONS ON
SEARCHES.  WERE ONE TO ACCEPT THIS LOGIC, FOR EXAMPLE, IT WOULD HAVE
BEEN REASONABLE FOR THE POLICE TO SEARCH THE ENTIRE HOUSE IN CHIMEL,
SUPRA, FOR IF A WEAPON HAD BEEN FOUND SOMEWHERE IN THE HOUSE, THE
ARRESTING OFFICER WOULD HAVE BEEN ALERTED TO SEARCH CHIMEL HIMSELF MORE
THOROUGHLY, AS THE POSSIBILITY OF THERE BEING OTHER WEAPONS CONCEALED
ON HIS PERSON WOULD ARGUABLY HAVE INCREASED. 

/7/  NOR WOULD IT NECESSARILY HAVE BEEN REASONABLE FOR THE POLICE TO
HAVE OPENED THE CIGARETTE PACKAGE AT THE POLICE STATION.  THE
GOVERNMENT ARGUED BELOW, AS AN ALTERNATIVE THEORY TO JUSTIFY THE SEARCH
IN THIS CASE, THAT WHEN A SUSPECT IS BOOKED AND IS ABOUT TO BE PLACED
IN STATION HOUSE DETENTION, IT IS REASONABLE TO SEARCH HIS PERSON TO
PREVENT THE INTRODUCTION OF WEAPONS OR CONTRABAND INTO THE JAIL
FACILITY AND TO INVENTORY THE PERSONAL EFFECTS FOUND ON THE SUSPECT. 
SINCE RESPONDENT'S CIGARETTE PACKAGE WOULD HAVE BEEN REMOVED AND OPENED
AT THE STATION HOUSE ANYWAY, THE ARGUMENT GOES, THE SEARCH MIGHT JUST
AS WELL TAKE PLACE IN THE FIELD AT THE TIME OF THE ARREST.  THIS
ARGUMENT FAILS FOR TWO REASONS.  FIRST, AS THE COURT OF APPEALS HAD
INDICATED IN ITS OPINION IN UNITED STATES V. MILLS, 153 U.S. APP. D.C.
156, 472 F.2D 1231 (1972) (EN BANC), THE JUSTIFICATION FOR STATIONHOUSE
SEARCHES IS NOT THE BOOKING PROCESS ITSELF, BUT RATHER THE FACT THAT
THE SUSPECT WILL BE PLACED IN JAIL.  IN THE DISTRICT OF COLUMBIA, PETTY
OFFENSES OF THE SORT INVOLVED IN THE PRESENT CASE ARE BAILABLE, AND, AS
THE GOVERNMENT STIPULATED IN MILLS, THE NORMAL PROCEDURE IS FOR
OFFENDERS TO BE ADVISED OF THE OPPORTUNITY TO POST COLLATERAL AT THE
STATION HOUSE AND TO AVOID AN INVENTORY SEARCH UNLESS THEY ARE UNABLE
OR REFUSE TO DO SO.  ID., AT 160 - 161, 472 F.2D, AT 1235 - 1236.  ONE
CANNOT JUSTIFY A FULL SEARCH IN THE FIELD ON A SUBSEQUENT EVENT THAT
QUITE POSSIBLY MAY NEVER TAKE PLACE. 

SECOND, EVEN HAD IT BECOME NECESSARY TO PLACE RESPONDENT IN
CONFINEMENT, IT IS STILL DOUBTFUL WHETHER ONE COULD JUSTIFY OPENING UP
THE CIGARETTE PACKAGE AND EXAMINING ITS CONTENTS.  THE PURPOSES OF
PREVENTING THE INTRODUCTION OF WEAPONS OR CONTRABAND INTO THE JAIL
FACILITY ARE FULLY SERVED SIMPLY BY REMOVING THE PACKAGE FROM THE
PRISONER.  IT IS ARGUED THAT THE POLICE MUST INVENTORY EFFECTS FOUND ON
THE PRISONER IN ORDER TO AVOID A LATER CLAIM BY THE PRISONER THAT JAIL
PERSONNEL STOLE HIS PROPERTY.  BUT AS THE COURT OF APPEALS NOTED IN
MILLS, THE POLICE CAN PROTECT THEMSELVES AGAINST SUCH CLAIMS BY MEANS
INVOLVING A LESS EXTREME INTRUSION ON PRIVACY THAN WOULD BE ENTAILED IN
OPENING UP AND EXAMINING THE CONTENTS OF ALL EFFECTS FOUND ON THE
PERSON.  AS AN EXAMPLE, THE COURT OF APPEALS SUGGESTED THAT THE
PRISONER BE GIVEN "AN OPPORTUNITY, LIKE THAT ACCORDED SOMEONE GIVEN A
BATHHOUSE LOCKER FOR TEMPORARY USE, TO 'CHECK' HIS BELONGINGS IN A
SEALED ENVELOPE, PERHAPS UPON EXECUTING A WAIVER RELEASING THE OFFICER
OF ANY RESPONSIBILITY."  ID., AT 164N.  11, 472 F.2D, AT 1239 N.11. 

THE GOVERNMENT ALSO SUGGESTED IN ORAL ARGUMENT BEFORE THIS COURT
THAT IT WOULD BE ADMINISTRATIVELY INCONVENIENT TO REQUIRE A POLICE
OFFICER, AFTER REMOVING AN OBJECT FROM AN ARRESTEE, TO HOLD ON TO THE
OBJECT RATHER THAN TO LOOK INSIDE AND DETERMINE WHAT IT CONTAINED. 
MERE ADMINISTRATIVE INCONVENIENCE, HOWEVER, CANNOT JUSTIFY INVASION OF
FOURTH AMENDMENT RIGHTS.  SEE CHIMEL V. CALIFORNIA, 395 U.S. 752, 768
(1969).  ONE CAN NO DOUBT IMAGINE CASES WHERE THE INCONVENIENCE MIGHT
BE SO SUBSTANTIAL AS TO INTERFERE WITH THE TASK OF TRANSPORTING THE
SUSPECT INTO CUSTODY.  WHILE THESE SITUATIONS MIGHT NECESSITATE A
DIFFERENT RULE, CERTAINLY IN THIS CASE THERE WOULD HAVE BEEN NO
INCONVENIENCE WHATSOEVER.  OFFICER JENKS COULD EASILY HAVE PLACED THE
CIGARETTE PACKAGE IN HIS OWN POCKET OR HANDED IT TO HIS PARTNER TO HOLD
ONTO UNTIL THEY REACHED THE PRECINCT STATION. 

ALLAN A. TUTTLE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
PETERSEN, DEPUTY SOLICITOR GENERAL LACOVARA, AND JEROME M. FEIT. 

JOSEPH V. GARTLAN, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM
ON THE BRIEF WAS DOROTHY SELLERS.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF ASSISTANT
ATTORNEY GENERAL, WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL, AND
ROBERT R. GRANUCCI AND SANFORD SVETCOV, DEPUTY ATTORNEYS GENERAL, FOR
THE STATE OF CALIFORNIA; BY WILLIAM J. SCOTT, ATTORNEY GENERAL, AND
JAMES B. ZAGEL AND JAYNE A. CARR, ASSISTANT ATTORNEYS GENERAL, FOR THE
STATE OF ILLINOIS; AND BY FRED E. INBAU, ALAN S. GANZ, FRANK
CARRINGTON, GLEN R. MURPHY, WAYNE W. SCHMIDT, GEOFFREY M. ALPRIN, AND
SCOTT R. SCHOENFELD FOR AMERICANS FOR EFFECTIVE LAW ENFORCEMENT, INC.,
ET AL. 

MELVIN L. WULF AND JOEL M. GORA FILED A BRIEF FOR THE AMERICAN CIVIL
LIBERTIES UNION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :
















GUSTAFSON V. FLORIDA, 414 U.S. 260 


       CERTIORARI TO THE SUPREME COURT OF FLORIDA

  NO. 71 - 1669.  ARGUED OCTOBER 9, 1973--DECIDED DECEMBER 11,

           1973; 258 SO.2D 1, AFFIRMED. 


    DURING THE COURSE OF A PATDOWN SEARCH OF THE PERSON OF

  PETITIONER, WHO HAD BEEN ARRESTED FOR NOT HAVING HIS DRIVER'S

  LICENSE IN HIS POSSESSION, THE ARRESTING OFFICER SEIZED MARIHUANA

  CIGARETTES, FOR THE UNLAWFUL POSSESSION OF WHICH PETITIONER WAS

  SUBSEQUENTLY TRIED AND CONVICTED.  THE STATE SUPREME COURT UPHELD

  THE CONVICTION, CONCLUDING THAT THE SEARCH LEADING TO THE

  DISCOVERY OF THE MARIHUANA, WHICH WAS USED AS EVIDENCE IN

  PETITIONER'S TRIAL, WAS NOT UNREASONABLE. 

     HELD:  THE FULL SEARCH OF THE PERSON OF THE SUSPECT MADE

  INCIDENT TO A LAWFUL CUSTODIAL ARREST DID NOT VIOLATE THE FOURTH

  AND FOURTEENTH AMENDMENTS, UNITED STATES V. ROBINSON, ANTE, P.

  218, AND IT IS OF NO CONSTITUTIONAL SIGNIFICANCE THAT, CONTRARY

  TO THE SITUATION IN ROBINSON, POLICE REGULATIONS DID NOT REQUIRE

  THAT PETITIONER BE TAKEN INTO CUSTORY OR ESTABLISH THE CONDITIONS

  UNDER WHICH A FULL-SCALE BODY SEARCH SHOULD BE CONDUCTED, NOR, AS

  IN ROBINSON, IS IT RELEVANT THAT THE ARRESTING OFFICER HAD NO

  SUBJECTIVE FEAR OF PETITIONER OR SUSPICION THAT HE WAS ARMED,

  SINCE IT IS THE FACT OF CUSTODIAL ARREST THAT GIVES RISE TO THE

  AUTHORITY TO SEARCH.  PP. 263 - 266. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  STEWART,
J., POST, P. 266, AND POWELL, J., ANTE, P. 237, FILED CONCURRING
OPINIONS.  MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS
AND BRENNAN, JJ., JOINED, POST, P. 267. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

PETITIONER JAMES GUSTAFSON WAS CONVICTED IN A FLORIDA TRIAL COURT
FOR UNLAWFUL POSSESSION OF MARIHUANA.  AT HIS TRIAL THE STATE
INTRODUCED INTO EVIDENCE MARIHUANA WHICH HAD BEEN SEIZED FROM HIM
DURING A SEARCH INCIDENT TO HIS ARREST ON A CHARGE OF DRIVING WITHOUT
POSSESSION OF AN OPERATOR'S LICENSE.  THE DISTRICT COURT OF APPEAL OF
FLORIDA, FOURTH DISTRICT, REVERSED PETITIONER'S CONVICTION, HOLDING
THAT THE SEARCH WHICH HAD LED TO THE DISCOVERY OF THE MARIHUANA WAS
UNREASONABLE UNDER THE FOURTH AND FOURTEENTH AMENDMENTS.  243 SO.2D 615
(CT. APP. FLA. 1971).  THE SUPREME COURT OF FLORIDA IN TURN REVERSED
THAT DECISION, 258 SO.2D 1 (FLA. 1972), AND PETITIONER SOUGHT
CERTIORARI IN THIS COURT.  WE GRANTED CERTIORARI, 410 U.S. 982 (1973),
AND SET THE CASE FOR ARGUMENT WITH NO. 72 - 936, UNITED STATES V.
ROBINSON, ALSO DECIDED TODAY, ANTE, P. 218.  FOR THE REASONS SET FORTH
BELOW, WE AFFIRM THE JUDGMENT OF THE SUPREME COURT OF FLORIDA. 

AT APPROXIMATELY 2 A.M., ON JANUARY 12, 1969, LIEUTENANT PAUL R.
SMITH, A UNIFORMED MUNICIPAL POLICE OFFICER OF EAU GALLIE, FLORIDA, WAS
ON A ROUTINE PATROL IN AN UNMARKED SQUAD CAR WHEN HE OBSERVED A 1953
WHITE CADILLAC, BEARING NEW YORK LICENSE PLATES, DRIVING SOUTH THROUGH
THE TOWN.  SMITH OBSERVED THE AUTOMOBILE WEAVE ACROSS THE CENTER LINE
AND BACK TO THE RIGHT SIDE OF THE ROAD "THREE OR FOUR" TIMES.  SMITH
TESTIFIED THAT HE OBSERVED THE TWO OCCUPANTS OF THE CADILLAC LOOK BACK;
AFTER THEY APPARENTLY SAW THE SQUAD CAR, THE CAR DROVE ACROSS THE
HIGHWAY AND BEHIND A GROCERY STORE, AND THEN HEADED SOUTH ON ANOTHER
CITY STREET. 

AT THAT POINT SMITH TURNED ON HIS FLASHING LIGHT AND ORDERED THE
CADILLAC OVER TO THE SIDE OF THE ROAD.  AFTER STOPPING THE VEHICLE,
SMITH ASKED PETITIONER, THE DRIVER, TO PRODUCE HIS OPERATOR'S LICENSE. 
PETITIONER INFORMED SMITH THAT HE WAS A STUDENT AND THAT HE HAD LEFT
HIS OPERATOR'S LICENSE IN HIS DORMITORY ROOM IN THE NEIGHBORING CITY OF
MELBOURNE, FLORIDA.  PETITIONER WAS THEN PLACED UNDER ARREST FOR
FAILURE TO HAVE HIS VEHICLE OPERATOR'S LICENSE IN HIS POSSESSION.  IT
WAS CONCEDED BY THE PARTIES BELOW AND IN THIS COURT THAT THE OFFICER
HAD PROBABLE CAUSE TO ARREST UPON LEARNING THAT PETITIONER DID NOT HAVE
HIS LICENSE IN HIS POSSESSION, AND THAT HE TOOK PETITIONER INTO CUSTODY
IN ORDER TO TRANSPORT HIM TO THE STATIONHOUSE FOR FURTHER INQUIRY. 
/1/ 

SMITH THEN PROCEEDED TO SEARCH THE PETITIONER'S PERSON.  SMITH
TESTIFIED THAT HE PATTED DOWN THE CLOTHING OF THE PETITIONER, "OUTSIDE
AND INSIDE, I CHECKED THE BELT, THE SHIRT POCKETS AND ALL AROUND THE
BELT, COMPLETELY AROUND INSIDE."  UPON COMPLETING HIS PATDOWN, HE
TESTIFIED, HE PLACED HIS HAND INTO THE LEFT FRONT COAT POCKET OF THE
COAT PETITIONER WAS WEARING.  FROM THAT POCKET HE EXTRACTED A "LONG
CHAIN" AND A BENSON AND HEDGES CIGARETTE BOX.  SMITH TESTIFIED THAT HE
THEN "OPENED (THE CIGARETTE BOX) AND IT APPEARED THERE WERE MARIHUANA
CIGARETTES IN THE BOX.  /2/  I HAD BEEN SHOWN THIS IN TRAINING AT THE
POLICE DEPARTMENT AND THESE APPEARED TO BE MARIHUANA TO ME." 

        I 

PETITIONER URGES THAT THERE COULD BE NO EVIDENTIARY PURPOSE FOR THE
SEARCH CONDUCTED BY SMITH, AND THEREFORE THE AUTHORITY TO SEARCH FOR
WEAPONS INCIDENT TO A LAWFUL ARREST IS CONTROLLED BY THE STANDARDS LAID
DOWN IN TERRY V. OHIO, 392 U.S. 1 (1968).  PETITIONER CONTENDS THAT
THIS CASE IS DIFFERENT FROM UNITED STATES V. ROBINSON, ANTE, P. 218, IN
THAT PETITIONER HAD EXPERIENCED NO PREVIOUS ENCOUNTERS WITH THE OFFICER
IN THIS CASE, AND THE OFFENSE FOR WHICH HE WAS ARRESTED WAS "BENIGN OR
TRIVIAL IN NATURE," CARRYING WITH IT NO MANDATORY MINIMUM SENTENCE AS
DID THE OFFENSE FOR WHICH ROBINSON WAS ARRESTED.  PETITIONER POINTS OUT
THAT HERE, UNLIKE ROBINSON, THERE WERE NO POLICE REGULATIONS WHICH
REQUIRED THE OFFICER TO TAKE PETITIONER INTO CUSTODY, NOR WERE THERE
POLICE DEPARTMENT POLICIES REQUIRING FULL-SCALE BODY SEARCHES UPON
ARREST IN THE FIELD.  PETITIONER ALSO POINTS TO THE FACT THAT HERE, AS
IN ROBINSON, THE OFFICER EXPRESSED NO FEAR FOR HIS OWN WELL-BEING OR
FOR THAT OF OTHERS IN DEALING WITH THE PETITIONER. 

WE HAVE HELD TODAY IN UNITED STATES V. ROBINSON THAT "(IT IS THE FACT
OF THE LAWFUL ARREST WHICH ESTABLISHES THE AUTHORITY TO SEARCH, AND . .
. IN THE CASE OF A LAWFUL CUSTODIAL ARREST A FULL SEARCH OF THE PERSON
IS NOT ONLY AN EXCEPTION TO THE WARRANT REQUIREMENT OF THE FOURTH
AMENDMENT, BUT IS ALSO A 'REASONABLE' SEARCH UNDER THAT AMENDMENT." 
ANTE, AT 235.  OUR DECISION IN ROBINSON INDICATES THAT THE LIMITATIONS
PLACED BY TERRY V. OHIO, SUPRA, ON PROTECTIVE SEARCHES CONDUCTED IN AN
INVESTIGATORY STOP SITUATION BASED ON LESS THAN PROBABLE CAUSE ARE NOT
TO BE CARRIED OVER TO SEARCHES MADE INCIDENT TO LAWFUL CUSTODIAL
ARRESTS.  WE STATED IN ROBINSON: 

     "THE JUSTIFICATION OR REASON FOR THE AUTHORITY TO SEARCH

  INCIDENT TO A LAWFUL ARREST RESTS QUITE AS MUCH ON THE NEED TO

  DISARM THE SUSPECT IN ORDER TO TAKE HIM INTO CUSTODY AS IT DOES

  ON THE NEED TO PRESERVE EVIDENCE ON HIS PERSON FOR LATER USE AT

TRIAL.  AGNELLO V. UNITED STATES, 269 U.S. 20 (1925); ABEL V.

  UNITED STATES, 362 U.S. 217 (1960).  THE STANDARDS TRADITIONALLY

  GOVERNING A SEARCH INCIDENT TO LAWFUL ARREST ARE NOT, THEREFORE,

  COMMUTED TO THE STRICTER TERRY STANDARDS BY THE ABSENCE OF

  PROBABLE FRUITS OR FURTHER EVIDENCE OF THE PARTICULAR CRIME FOR

  WHICH THE ARREST IS MADE."  ANTE, AT 234. 

NEITHER CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969), NOR PETERS V. NEW
YORK, 392 U.S. 40 (1968), RELIED UPON BY PETITIONER, PURPORTED TO LIMIT
THE TRADITIONAL AUTHORITY OF THE ARRESTING OFFICER TO CONDUCT A FULL
SEARCH OF THE PERSON OF AN ARRESTEE INCIDENT TO A LAWFUL CUSTODIAL
ARREST.  UNITED STATES V. ROBINSON, ANTE, AT 225 - 226, 228 - 229. 
INDEED, AS OUR DECISION IN ROBINSON INDICATES, NOT ONLY HAS THIS BEEN
ESTABLISHED FOURTH AMENDMENT LAW SINCE THE DECISION IN WEEKS V. UNITED
STATES, 232 U.S. 383 (1914), BUT IT WAS ALSO THE RULE BOTH AT COMMON
LAW AND IN THE EARLY DEVELOPMENT OF AMERICAN LAW.  UNITED STATES V.
ROBINSON, ANTE, AT 230 - 233. 

THOUGH THE OFFICER HERE WAS NOT REQUIRED TO TAKE THE PETITIONER INTO
CUSTODY BY POLICE REGULATIONS AS HE WAS IN ROBINSON, AND THERE DID NOT
EXIST A DEPARTMENTAL POLICY ESTABLISHING THE CONDITIONS UNDER WHICH A
FULL-SCALE BODY SEARCH SHOULD BE CONDUCTED, WE DO NOT FIND THESE
DIFFERENCES DETERMINATIVE OF THE CONSTITUTIONAL ISSUE.  ID., AT 223
N.2.  /3/  IT IS SUFFICIENT THAT THE OFFICER HAD PROBABLE CAUSE TO
ARREST THE PETITIONER AND THAT HE LAWFULLY EFFECTUATED THE ARREST AND
PLACED THE PETITIONER IN CUSTODY.  IN ADDITION, AS OUR DECISION IN
ROBINSON MAKES CLEAR, THE ARGUABLE ABSENCE OF "EVIDENTIARY" PURPOSE FOR
A SEARCH INCIDENT TO A LAWFUL ARREST IS NOT CONTROLLING.  ID., AT 233. 
/4/  "THE AUTHORITY TO SEARCH THE PERSON INCIDENT TO A CUSTODIAL
ARREST, WHILE BASED UPON THE NEED TO DISARM AND TO DISCOVER EVIDENCE,
DOES NOT DEPEND ON WHAT A COURT MAY LATER DECIDE WAS THE PROBABILITY IN
A PARTICULAR ARREST SITUATION THAT WEAPONS OR EVIDENCE WOULD IN FACT BE
FOUND UPON THE PERSON OF THE SUSPECT."  ID., AT 235. 

        II 

WE HOLD, THEREFORE, THAT UPON ARRESTING PETITIONER FOR THE OFFENSE
OF DRIVING HIS AUTOMOBILE WITHOUT POSSESSION OF A VALID OPERATOR'S
LICENSE, AND TAKING HIM INTO CUSTODY, SMITH WAS ENTITLED TO MAKE A FULL
SEARCH OF PETITIONER'S PERSON INCIDENT TO THAT LAWFUL ARREST.  SINCE IT
IS THE FACT OF CUSTODIAL ARREST WHICH GIVES RISE TO THE AUTHORITY TO
SEARCH, IT IS OF NO MOMENT THAT SMITH DID NOT INDICATE ANY SUBJECTIVE
FEAR OF THE PETITIONER OR THAT HE DID NOT HIMSELF SUSPECT THAT THE
PETITIONER WAS ARMED.  HAVING IN THE COURSE OF HIS LAWFUL SEARCH COME
UPON THE BOX OF CIGARETTES, SMITH WAS ENTITLED TO INSPECT IT; AND WHEN
HIS INSPECTION REVEALED THE HOMEMADE CIGARETTES WHICH HE BELIEVED TO
CONTAIN AN UNLAWFUL SUBSTANCE, HE WAS ENTITLED TO SEIZE THEM AS
"FRUITS, INSTRUMENTALITIES OR CONTRABAND" PROBATIVE OF CRIMINAL
CONDUCT.  HARRIS V. UNITED STATES, 331 U.S. 145, 154 - 155 (1947);
WARDEN V. HAYDEN, 387 U.S. 294, 299, 307 (1967); ADAMS V. WILLIAMS, 407
U.S. 143, 149 (1972); UNITED STATES V. ROBINSON, ANTE, AT 236.  THE
JUDGMENT OF THE SUPREME COURT OF FLORIDA IS THEREFORE

              AFFIRMED. 

/1/  BRIEF FOR PETITIONER 9. 

/2/  UPON PLACING PETITIONER UNDER ARREST FOR DRIVING WITHOUT
POSSESSION OF AN OPERATOR'S LICENSE AND AFTER REMOVING THE CHAIN AND
THE CIGARETTE BOX FROM PETITIONER'S CLOTHING, SMITH TOLD THE ASSISTING
OFFICER ON THE SCENE TO CHECK THE OTHER PASSENGER OF THE CADILLAC TO
SEE IF HE HAD AN OPERATOR'S PERMIT SO THAT HE COULD DRIVE THE CAR TO
THE STATION.  SMITH THEN PUT PETITIONER IN THE BACK SEAT OF THE SQUAD
CAR.  SMITH THEN OPENED THE CIGARETTE BOX AND OBSERVED THE ROLLED
CIGARETTES HE BELIEVED TO BE MARIHUANA.  HE THEN TOLD THE OTHER OFFICER
TO PLACE THE OTHER PASSENGER IN THE SQUAD CAR SO THAT HE COULD ALSO BE
TRANSPORTED TO THE STATION, FOR THE PURPOSE OF INVESTIGATION.  THE
PASSENGER WAS FRISKED BY THE OTHER OFFICER AND PLACED IN THE SQUAD CAR;
NO CHARGES WERE PLACED AGAINST THE PASSENGER.  IN ADDITION TO THE
MARIHUANA CONVICTION WHICH WE HERE REVIEW, PETITIONER WAS CHARGED WITH
DRIVING WITHOUT POSSESSION OF AN OPERATOR'S LICENSE; THAT CHARGE WAS
DROPPED WHEN PETITIONER PRODUCED A VALID OPERATOR'S LICENSE AT A LATER
DATE. 

/3/  SMITH TESTIFIED THAT HE WROTE ABOUT EIGHT TO 10 TRAFFIC
CITATIONS PER WEEK, AND THAT ABOUT THREE OR FOUR OUT OF EVERY 10
PERSONS HE ARRESTED FOR THE OFFENSE OF DRIVING WITHOUT A LICENSE WERE
TAKEN INTO CUSTODY TO THE POLICE STATION.  SMITH INDICATED THAT AN
OFFENDER IS MORE LIKELY TO BE TAKEN INTO CUSTODY IF HE DOES NOT RESIDE
IN THE CITY OF EAU GALLIE.  FINALLY, SMITH TESTIFIED THAT AFTER MAKING
A CUSTODIAL ARREST, HE ALWAYS SEARCHES THE ARRESTEE BEFORE PLACING HIM
INTO THE PATROL CAR. 

/4/  THE STATE OF FLORIDA ARGUES IN THIS COURT THAT THERE WAS AN
EVIDENTIARY PURPOSE FOR THE SEARCH OF PETITIONER.  IT IS CONTENDED THAT
SMITH'S OBSERVATION OF THE ERRATIC MOTIONS OF THE CAR THAT PETITIONER
WAS DRIVING CREATED A REASONABLE SUSPICION THAT THE PETITIONER MAY HAVE
BEEN UNDER THE INFLUENCE OF SOME INTOXICANT.  UPON CONFRONTING
PETITIONER AFTER STOPPING THE CAR, SMITH INDICATED THAT HE NOTICED THAT
THE PETITIONER'S EYES WERE "BLEARY."  THE STATE ARGUES THAT THE OFFICER
HAD PROBABLE CAUSE TO ARREST THE PETITIONER FOR DRIVING WHILE
INTOXICATED, AND THAT SMITH THOUGHT GUSTAFSON WAS INTOXICATED WHEN HE
CONFRONTED HIM.  SINCE SMITH DID NOT DETECT AN ODOR OF ALCOHOL DURING
THAT CONFRONTATION, THE STATE ARGUES IT WAS REASONABLE FOR THE OFFICER
TO SEARCH THE PETITIONER'S PERSON FOR DRUGS THAT MAY HAVE BEEN THE
CAUSE OF THE SUSPECTED INTOXICATION.  FLORIDA MAKES IT A CRIMINAL
OFFENSE TO DRIVE WHILE INTOXICATED NOT ONLY BY ALCOHOL, BUT ALSO BY
UNLAWFUL DRUGS.  FLA. STAT. ANN. 317.201 (1968). 

(FOR CONCURRING OPINION OF MR. JUSTICE POWELL, SEE ANTE, P. 237.) 

MR. JUSTICE STEWART, CONCURRING. 

IT SEEMS TO ME THAT A PERSUASIVE CLAIM MIGHT HAVE BEEN MADE IN THIS
CASE THAT THE CUSTODIAL ARREST OF THE PETITIONER FOR A MINOR TRAFFIC
OFFENSE VIOLATED HIS RIGHTS UNDER THE FOURTH AND FOURTEENTH
AMENDMENTS.  BUT NO SUCH CLAIM HAS BEEN MADE.  INSTEAD, THE PETITIONER
HAS FULLY CONCEDED THE CONSTITUTIONAL VALIDITY OF HIS CUSTODIAL
ARREST.  THAT BEING SO, IT FOLLOWS THAT THE INCIDENTAL SEARCH OF HIS
PERSON WAS ALSO CONSTITUTIONALLY VALID.  TO HOLD OTHERWISE WOULD, AS
THE COURT MAKES CLEAR IN THIS CASE AND IN UNITED STATES V. ROBINSON,
ANTE, P. 218, MARK AN ABRUPT DEPARTURE FROM SETTLED CONSTITUTIONAL
PRECEDENT. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

I RESPECTFULLY DISSENT FOR THE REASONS STATED IN MY OPINION IN
UNITED STATES V. ROBINSON, ANTE, P. 238.  THE FACTS SHOW THAT AFTER
ARRESTING PETITIONER GUSTAFSON FOR DRIVING WITHOUT POSSESSION OF AN
OPERATOR'S LICENSE, OFFICER SMITH CONDUCTED A SEARCH OF PETITIONER'S
PERSON IN WHICH HE REMOVED A BENSON AND HEDGES CIGARETTE BOX.  THE
OFFICER PUT PETITIONER IN THE BACK SEAT OF THE SQUAD CAR AND THEN
OPENED THE CIGARETTE BOX, DISCLOSING MARIHUANA CIGARETTES.  AS MY
BROTHER STEWART INDICATES, ANTE, AT 266 AND THIS PAGE, NO CHALLENGE WAS
MADE EITHER HERE OR BELOW WITH RESPECT TO THE LAWFULNESS OF OFFICER
SMITH'S DECISION TO EFFECT A FULL CUSTODIAL ARREST FOR THIS MINOR
TRAFFIC OFFENSE.  WHETHER OR NOT IT WAS LAWFUL FOR THE OFFICER TO HAVE
SEARCHED PETITIONER'S PERSON AND REMOVED THE CIGARETTE PACKAGE BEFORE
PLACING PETITIONER IN THE SQUAD CAR, SEE UNITED STATES V. ROBINSON,
ANTE, AT 250 - 255 (MARSHALL, J., DISSENTING), THERE WAS NO
JUSTIFICATION FOR HIS OPENING THE PACKAGE AND LOOKING INSIDE. 

THERE WAS NO REASON TO BELIEVE, AND OFFICER SMITH DID NOT IN FACT
BELIEVE, THAT PETITIONER WAS A DANGEROUS PERSON OR THAT THE PACKAGE
CONTAINED A WEAPON.  THE PACKAGE'S WEIGHT ALONE NO DOUBT WOULD HAVE
INDICATED THAT IT DID NOT CONTAIN A GUN OR KNIFE.  IN ANY EVENT, EVEN
WERE IT POSSIBLE THAT THE PACKAGE CONTAINED SOME SORT OF WEAPON--SAY A
RAZOR BLADE--THERE WAS NO CHANCE THE PETITIONER COULD USE IT ONCE IT
WAS IN THE OFFICER'S HANDS.  THE OPENING OF THE PACKAGE HAD NO
CONNECTION WHATSOEVER WITH THE PROTECTIVE PURPOSE OF THE SEARCH. 
THE STATE ARGUES, AND THE FLORIDA SUPREME COURT FOUND, SEE 258 SO.2D 1,
2 (1972), THAT OFFICER SMITH HAD A REASONABLE SUSPICION PETITIONER WAS
INTOXICATED, JUSTIFYING SEARCHING FOR INTOXICATING DRUGS SUCH AS
MARIHUANA.  LEAVING ASIDE THE QUESTION WHETHER THE OFFICER COULD SEARCH
FOR INTOXICANTS, ABSENT PROBABLE CAUSE THAT PETITIONER HAD COMMITTED AN
OFFENSE INVOLVING INTOXICATION, I DO NOT FIND SUFFICIENT EVIDENCE IN
THIS RECORD TO SUPPORT THE CONCLUSION THAT OFFICER SMITH EVEN HAD A
REASONABLE SUSPICION PETITIONER WAS INTOXICATED.  TO BEGIN WITH,
OFFICER SMITH NEITHER ARRESTED PETITIONER FOR DRIVING WHILE INTOXICATED
NOR DID HE GIVE PETITIONER A SOBRIETY TEST.  SEE FLA. STAT. ANN 322.261
AND 322.262 (1968).  SMITH TESTIFIED THAT PETITIONER DID NOT HAVE ANY
TROUBLE GETTING OUT OF HIS CAR, DID NOT HAVE DIFFICULTY STANDING UP,
AND DID NOT SLUR HIS SPEECH WHEN ANSWERING THE OFFICER'S QUESTIONS. 
NOR DID THE FACT THAT PETITIONER'S CAR WEAVED ACROSS A LANE JUSTIFY
SUCH A SUSPICION.  AS OFFICER SMITH TESTIFIED, HE DID NOT ARREST
PETITIONER ON A CARELESS-DRIVING-BY-WEAVING CHARGE BECAUSE THERE WAS
SIMPLY NOT ENOUGH EVIDENCE.  IF THERE WAS NOT ENOUGH EVIDENCE TO
JUSTIFY A CHARGE FOR THE WEAVING ITSELF, I FIND IT HARD TO UNDERSTAND
HOW THERE COULD BE ENOUGH EVIDENCE TO SUSPECT THAT PETITIONER WAS
INTOXICATED.  OFFICER SMITH TESTIFIED THAT PETITIONER'S EYES LOOKED
BLEARY, BUT THAT WAS HARDLY SURPRISING, SINCE THE ARREST TOOK PLACE AT
2 A.M. 

THE ONLY NEED FOR A SEARCH IN THIS CASE WAS TO DISARM PETITIONER TO
PROTECT OFFICER SMITH FROM HARM WHILE THE TWO WERE TOGETHER IN THE
PATROL CAR.  THE SEARCH CONDUCTED BY OFFICER SMITH WENT FAR BEYOND WHAT
WAS REASONABLY NECESSARY TO ACHIEVE THAT END.  IT THEREFORE FELL
OUTSIDE THE SCOPE OF A PROPERLY DRAWN "SEARCH INCIDENT TO ARREST"
EXCEPTION TO THE FOURTH AMENDMENT'S WARRANT REQUIREMENT.  I WOULD
REVERSE THE JUDGMENT OF THE FLORIDA SUPREME COURT HOLDING THAT THE
FRUITS OF THE SEARCH COULD BE ADMITTED AT PETITIONER'S TRIAL. 

JAMES M. RUSS ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS MICHAEL F. CYCMANICK. 

BARRY SCOTT RICHARD, DEPUTY ATTORNEY GENERAL OF FLORIDA, ARGUED THE
CAUSE FOR RESPONDENT.  ON THE BRIEF WERE ROBERT L. SHEVIN, ATTORNEY
GENERAL, AND NELSON E. BAILEY AND C. MARIE BERNARD, ASSISTANT ATTORNEYS
GENERAL.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY EVELLE
J. YOUNGER, ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF ASSISTANT
ATTORNEY GENERAL, WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL, AND
ROBERT R. GRANUCCI AND SANFORD SVETCOV, DEPUTY ATTORNEYS GENERAL, FOR
THE STATE OF CALIFORNIA, AND BY WILLIAM J. SCOTT, ATTORNEY GENERAL, AND
JAMES B. ZAGEL AND JAYNE A. CARR, ASSISTANT ATTORNEYS GENERAL, FOR THE
STATE OF ILLINOIS. 
..END :



NORTH DAKOTA PHARMACY BD. V. SNYDER'S STORES, 414 U.S. 156 


       CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA

       NO. 72 - 1176.  ARGUED NOVEMBER 6, 1973--DECIDED DECEMBER 5,

           1973; 202 N.W.2D 140, REVERSED AND REMANDED. 


    THE NORTH DAKOTA SUPREME COURT, RELYING ON LIGGETT CO. V.

  BALDRIDGE, 278 U.S. 105, HELD UNCONSTITUTIONAL A STATE STATUTE,

  UNDER WHICH RESPONDENT HAD BEEN DENIED A PHARMACY OPERATING

  PERMIT, REQUIRING THAT AN APPLICANT FOR SUCH A PERMIT BE "A

  REGISTERED PHARMACIST IN GOOD STANDING"  OR "A CORPORATION OR

  ASSOCIATION, THE MAJORITY STOCK IN WHICH IS OWNED BY REGISTERED

  PHARMACISTS IN GOOD STANDING, ACTIVELY AND REGULARLY EMPLOYED IN

  AND RESPONSIBLE FOR THE MANAGEMENT, SUPERVISION, AND OPERATION OF

  SUCH PHARMACY."  THE COURT REMANDED THE CASE SO THAT PETITIONER

  BOARD COULD CONDUCT AN ADMINISTRATIVE HEARING "SANS THE

  CONSTITUTIONAL ISSUE," ON RESPONDENT'S ALLEGED FAILURE TO MEET

  CERTAIN STRUCTURAL AND SAFETY STANDARDS ON WHICH PETITIONER HAD

  ALSO RESTED ITS PERMIT DENIAL.  HELD: 

   1.  THIS COURT DOES NOT LACK JURISDICTION TO REVIEW THE STATE

  SUPREME COURT'S JUDGMENT, WHICH IS "FINAL" WITHIN THE MEANING OF

  28 U.S.C. 1257, FOR IT IS NOT APPARENT HOW PETITIONER BOARD WOULD

  BE ABLE TO PRESERVE THE CONSTITUTIONAL ISSUE NOW READY FOR

  ADJUDICATION WITHOUT DEFYING THE STATE SUPREME COURT.  PP. 159 -

  164. 

     2. THE NORTH DAKOTA STATUTORY REQUIREMENT FOR PERMITTING THE

OPERATION OF A PHARMACY DO NOT VIOLATE THE DUE PROCESS CLAUSE OF

  THE FOURTEENTH AMENDMENT.  IN ENACTING THE CHALLENGED LEGISLATION

  THE STATE WAS WELL WITHIN ITS AUTHORITY "TO LEGISLATE AGAINST

  WHAT (IT) FOUND TO BE INJURIOUS PRACTICES IN (ITS) INTERNAL

  COMMERCIAL AND BUSINESS AFFAIRS,"  LINCOLN UNION V. NORTHWESTERN

  CO., 335 U.S. 525, 536, AND THIS COURT WILL NOT SUBSTITUTE ITS

  OWN JUDGMENT FOR WHAT THE STATE FEELS IS REASONABLY NECESSARY TO

  PROTECT THE INTERESTS OF THE PUBLIC.  LIGGETT CO. V. BALDRIDGE,

SUPRA, OVERRULED.  PP. 164 - 167. 

     DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

NORTH DAKOTA PASSED A STATUTE /1/  THAT REQUIRES THAT THE APPLICANT
FOR A PERMIT TO OPERATE A PHARMACY BE "A REGISTERED PHARMACIST IN GOOD
STANDING"  OR "A CORPORATION OR ASSOCIATION, THE MAJORITY STOCK IN
WHICH IS OWNED BY REGISTERED PHARMACISTS IN GOOD STANDING, ACTIVELY AND
REGULARLY EMPLOYED IN AND RESPONSIBLE FOR THE MANAGEMENT, SUPERVISION,
AND OPERATION OF SUCH PHARMACY." 

PETITIONER BOARD DENIED A PERMIT TO SNYDER'S DRUG STORES, INC.,
BECAUSE IT DID NOT COMPLY WITH THE STOCKOWNERSHIP REQUIREMENTS OF THE
STATUTE, IT APPEARING THAT ALL THE COMMON STOCK OF SNYDER'S WAS OWNED
BY RED OWL STORES AND IT NOT BEING SHOWN IF ANY RED OWL SHAREHOLDERS
WERE PHARMACISTS REGISTERED AND IN GOOD STANDING IN NORTH DAKOTA.  ON
APPEAL TO THE STATE DISTRICT COURT, SUMMARY JUDGMENT WAS GRANTED
SNYDER'S.  ON APPEAL TO THE SUPREME COURT OF NORTH DAKOTA, THAT COURT
HELD /2/  THAT THE NORTH DAKOTA STATUTE WAS UNCONSTITUTIONAL BY REASON
OF OUR DECISION IN 1928 IN LIGGETT CO. V. BALDRIDGE, 278 U.S. 105. 
THAT CASE INVOLVED A PENNSYLVANIA STATUTE THAT REQUIRED THAT 100% OF
THE STOCK OF THE CORPORATION BE OWNED BY PHARMACISTS.  THE NORTH DAKOTA
STATUTE, HOWEVER, REQUIRES ONLY THAT A MAJORITY OF THE STOCK BE OWNED
BY PHARMACISTS.  BUT THE NORTH DAKOTA SUPREME COURT HELD THAT THE
DIFFERENCE DID NOT TAKE THIS CASE OUT FROM UNDER THE LIGGETT CASE
BECAUSE UNDER BOTH STATUTES CONTROL OF THE CORPORATION HAVING A
PHARMACIST'S LICENSE HAD TO BE IN THE HANDS OF PHARMACISTS RESPONSIBLE
FOR THE MANAGEMENT AND OPERATION OF THE PHARMACY.  THAT COURT THEREFORE
REMANDED THE CASE, SO THAT THE BOARD COULD CONDUCT "AN ADMINISTRATIVE
HEARING ON THE APPLICATION, SANS THE CONSTITUTIONAL ISSUE, PURSUANT TO
OUR ADMINISTRATIVE AGENCIES PRACTICE ACT," 202 N.W. 2D 140, 145
(ITALICS ADDED). 

THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE GRANTED, 411
U.S. 947. 

        I 

WE ARE MET AT THE OUTSET WITH A SUGGESTION THAT THE JUDGMENT OF THE
SUPREME COURT OF NORTH DAKOTA IS NOT "FINAL" WITHIN THE MEANING OF 28
U.S.C. 1257 WHICH RESTRICTS OUR JURISDICTION TO REVIEW STATE COURT
DECISIONS.  /3/ 

THE FINALITY REQUIREMENT OF 28 U.S.C. 1257, WHICH LIMITS OUR REVIEW
OF STATE COURT JUDGMENTS, SERVES SEVERAL ENDS; (1) IT AVOIDS PIECEMEAL
REVIEW BY FEDERAL COURTS OF STATE COURT DECISIONS; (2) IT AVOIDS GIVING
ADVISORY OPINIONS IN CASES WHERE THERE MAY BE NO REAL "CASE" OR
CONTROVERSY" IN THE SENSE OF ART. III; (3) IT LIMITS FEDERAL REVIEW OF
STATE COURT DETERMINATIONS OF FEDERAL CONSTITUTIONAL ISSUES TO LEAVE AT
A MINIMUM FEDERAL INTRUSION IN STATE AFFAIRS. 

MR. JUSTICE FRANKFURTER, WRITING FOR THE COURT IN RADIO STATION WOW
V. JOHNSON, 326 U.S. 120, 124, SUMMARIZED THE REQUIREMENT BY CONGRESS
THAT IN APPEALS FROM FEDERAL DISTRICT COURTS AS WELL AS IN REVIEW OF
STATE COURT DECISIONS IN JUDGMENTS BE "FINAL":  "THIS REQUIREMENT HAS
THE SUPPORT OF CONSIDERATIONS GENERALLY APPLICABLE TO GOOD JUDICIAL
ADMINISTRATION.  IT AVOIDS THE MISCHIEF OF ECONOMIC WASTE AND OF
DELAYED JUSTICE.  ONLY IN VERY FEW SITUATIONS, WHERE INTERMEDIATE
RULINGS MAY CARRY SERIOUS PUBLIC CONSEQUENCES, HAS THERE BEEN A
DEPARTURE FROM THIS REQUIREMENT OF FINALITY FOR FEDERAL APPELLATE
JURISDICTION.  THIS PREREQUISITE TO REVIEW DERIVES ADDED FORCE WHEN THE
JURISDICTION OF THIS COURT IS INVOKED TO UPSET THE DECISION OF A STATE
COURT.  HERE WE ARE IN THE REALM OF POTENTIAL CONFLICT BETWEEN THE
COURTS OF TWO DIFFERENT GOVERNMENTS.  AND SO, EVER SINCE 1789, CONGRESS
HAS GRANTED THIS COURT THE POWER TO INTERVENE IN STATE LITIGATION ONLY
AFTER 'THE HIGHEST COURT OF A STATE IN WHICH A DECISION IN THE SUIT
COULD BE HAD' HAS RENDERED A 'FINAL JUDGMENT OR DECREE.'  237 OF THE
JUDICIAL CODE, 28 U.S.C. 344(A).  THIS REQUIREMENT IS NOT ONE OF THOSE
TECHNICALITIES TO BE EASILY SCORNED.  IT IS AN IMPORTANT FACTOR IN THE
SMOOTH WORKING OF OUR FEDERAL SYSTEM." 

BUT, AS HE POINTED OUT, THIS CONCEPT OF "FINALITY" HAS A "PENUMBRAL
AREA."  IBID.  SPEAKING FOR THE COURT IN THAT CASE, HE HELD THAT
NEBRASKA'S RULING ON THE LEGALITY OF A RADIO LICENSE ISSUED BY THE
FEDERAL COMMISSION COULD BE REVIEWED EVEN THOUGH THE STATE COURT HAD
NOT YET DETERMINED THE FINAL ACCOUNTING.  HE STATED:  "OF COURSE, WHERE
THE REMAINING LITIGATION MAY RAISE OTHER FEDERAL QUESTIONS THAT MAY
LATER COME HERE . . . TO ALLOW REVIEW OF AN INTERMEDIATE ADJUDICATION
WOULD OFFEND THE DECISIVE OBJECTION TO FRAGMENTARY REVIEWS."  ID., AT
127. 

MILLS V. ALABAMA, 384 U.S. 214, INVOLVED THE CONSTITUTIONALITY OF A
STATE STATUTE MAKING IT A CRIME FOR AN EDITOR ON ELECTION DAY TO URGE
PEOPLE TO VOTE A CERTAIN WAY ON THE ISSUES BEING SUBMITTED.  THE STATE
COURT HELD THE ACT DID NOT VIOLATE THE FEDERAL CONSTITUTION AND
REMANDED THE CASE FOR TRIAL.  IT WAS ARGUED THAT THE JUDGMENT WAS NOT
"FINAL" FOR PURPOSES OF 28 U.S.C. 1257.  WE NOTED THAT THE POINT HAD "A
SURFACE PLAUSIBILITY, SINCE IT IS TRUE THE JUDGMENT OF THE STATE
SUPREME COURT DID NOT LITERALLY END THE CASE."  ID., AT 217.  WE HELD
IT "FINAL" HOWEVER BECAUSE IF THE ACT WERE CONSTITUTIONAL THE EDITOR
WOULD IN REALITY HAVE NO DEFENSE.  SINCE CONVICTION SEEMED LIKELY, WE
CONCLUDED THAT TO DENY REVIEW AT THAT STAGE WOULD "RESULT IN A
COMPLETELY UNNECESSARY WASTE OF TIME AND ENERGY IN JUDICIAL SYSTEMS
ALREADY TROUBLED BY DELAYS DUE TO CONGESTED DOCKETS."  ID., AT 217 -
218. 

IN HUDSON DISTRIBUTORS, INC. V. ELI LILLY & CO., 377 U.S. 386, THE
QUESTION ON THE MERITS WAS WHETHER THE REQUIREMENT OF A STATE ACT
SETTING MINIMUM RETAIL PRICES WAS CONSONANT WITH FEDERAL LAW.  THE
STATE COURT HELD THE STATE ACT CONSTITUTIONAL UNDER BOTH THE STATE AND
THE FEDERAL CONSTITUTIONS AND REMANDED THE CASE FOR FURTHER
PROCEEDINGS.  IN RELIANCE ON CURRY AND ON LANGDEAU /4/  WE HELD THAT
THE FACT THAT THERE WERE TO BE FURTHER PROCEEDINGS IN THE STATE COURT
DID NOT RENDER THE STATE JUDGMENT "NONFINAL OR UNAPPEALABLE WITHIN THE
MEANING OF 28 U.S.C. 1257."  ID., AT 389 N. 4. 

THE EXCEPTIONS NOTED /5/  HAVE A LONG LINEAGE DATING BACK TO MR.
CHIEF JUSTICE TANEY'S OPINION IN FORGAY V. CONRAD, 6 HOW.  201, WHERE
THE COURT HELD "FINAL" AN INTERLOCUTORY DECREE REQUIRING A LITIGANT "TO
DELIVER UP PROPERTY WHICH HE CLAIMS," EVEN THOUGH A FINAL ACCOUNTING
HAS YET TO BE MADE.  ID., AT 205.  UNLESS THAT INTERLOCUTORY ORDER WAS
DEEMED "FINAL,"  MR. CHIEF JUSTICE TANEY POINTED OUT, THE "RIGHT OF
APPEAL IS OF VERY LITTLE VALUE TO HIM AND HE MAY BE RUINED BEFORE HE IS
PERMITTED TO AVAIL HIMSELF OF THE RIGHT."  IBID. 

IT IS EQUALLY IMPORTANT THAT WE TREAT THE JUDGMENT IN THE INSTANT
CASE AS "FINAL," FOR WE HAVE DISCOVERED NO WAY WHICH THE LICENSING
AUTHORITY IN NORTH DAKOTA HAS OF PRESERVING THE CONSTITUTIONAL QUESTION
NOW RIPE FOR DECISION. 

THE BOARD HERE DENIED RESPONDENT'S APPLICATION WITHOUT AN
EVIDENTIARY HEARING SINCE THE APPLICATION SHOWED THAT UNDER THE NORTH
DAKOTA ACT RESPONDENT COULD IN NO WAY QUALIFY FOR A LICENSE.  THE STATE
SUPREME COURT HELD THAT ACT UNCONSTITUTIONAL AND THAT THUS AN APPLICANT
FAILING TO MEET THE REQUIREMENTS OF THE STATE STATUTE IS NEVERTHELESS
ENTITLED TO CONSIDERATION FOR A LICENSE.  AS PREVIOUSLY NOTED, THE
STATE SUPREME COURT, INDEED, DIRECTED THE BOARD ON REMAND TO RECONSIDER
THE APPLICATION "SANS"  THE CONSTITUTIONAL QUESTION. 

THERE WERE STATE LAW QUESTIONS TO BE CONSIDERED ON THE REMAND, FOR
THE STATE BOARD HAD ALSO RESTED ITS DENIAL OF A PERMIT ON THE FAILURE
OF SNYDER'S TO MEET CERTAIN STRUCTURAL AND SAFETY STANDARDS.  THE
SUPREME COURT REMANDED FOR AN ADMINISTRATIVE HEARING ON THOSE OTHER
ISSUES. 

IF WE DENY REVIEW AT THIS POINT, RESPONDENT HAS NO CONSTITUTIONAL
BARRIER TO THE GRANT OF A LICENSE. 

THE STATE LICENSING AUTHORITY MIGHT, OF COURSE, AFTER AN
ADMINISTRATIVE HEARING REINSTATE ITS EARLIER FINDINGS THAT THE
RESPONDENT DOES NOT MEET THE NECESSARY STRUCTURAL AND SAFETY
STANDARDS.  IF RESPONDENT IS DENIED A LICENSE FOR THAT REASON, THE
DENIAL WILL OBVIOUSLY BE ON A STATE GROUND.  IF RESPONDENT IS GRANTED A
LICENSE, THE BATTLE OVER THE CONSTITUTIONALITY OF THE NEW ACT WILL BE
LOST AS FAR AS THIS CASE IS CONCERNED. 

THERE IS NO SUGGESTION THAT "THE REMAINING LITIGATION MAY RAISE
OTHER FEDERAL QUESTIONS," RADIO STATION WOW V. JOHNSON, 326 U.S., AT
127, "SUCH AS IS TRUE OF EMINENT DOMAIN CASES."  IBID.  FOR IN THOSE
CASES THE FEDERAL CONSTITUTIONAL QUESTION EMBRACES NOT ONLY A TAKING,
BUT A TAKING ON PAYMENT OF JUST COMPENSATION.  A STATE JUDGMENT IS NOT
FINAL UNLESS IT COVERS BOTH ASPECTS OF THAT INTEGRAL PROBLEM.  SEE
GRAYS HARBOR CO. V. COATS-FORDNEY CO., 243 U.S. 251, 256. 

IT WOULD APPEAR THAT, AS A MATTER OF NORTH DAKOTA PROCEDURES, THE
ONLY WAY IN WHICH THE BOARD COULD PRESERVE THE CONSTITUTIONAL ISSUE
WOULD BE TO DEFY ITS OWN STATE SUPREME COURT AND DENY THE APPLICATION
ON THE GROUND OF FAILURE TO MEET THE OWNERSHIP REQUIREMENT.  THE STATE
ADMINISTRATIVE AGENCIES PRACTICE ACT PROVIDES THAT:  "ANY PARTY TO ANY
PROCEEDING HEARD BY AN ADMINISTRATIVE AGENCY" MAY APPEAL FROM THE
DECISION OF THE AGENCY.  N. D. CENT. CODE 28 - 32 - 15.  THE STATUTE
APPEARS TO TREAT THE AGENCY AS A TRIBUNAL AND NOT A "PARTY" ABLE TO
APPEAL ITS OWN ORDER. 

IF THE BOARD THUS GRANTS THE LICENSE IN ACCORDANCE WITH THE STATE
SUPREME COURT DECISION AND THEN SEEKS TO APPEAL ITS OWN GRANT ON THE
BASIS OF THE VALIDITY OF THE STATE OWNERSHIP REQUIREMENT, THE APPEAL
MAY WELL BE DISMISSED AND THE DISMISSAL WOULD REST ON THE INDEPENDENT
STATE GROUND THAT STATE PROCEDURAL LAW DOES NOT PROVIDE THE AGENCY THE
RIGHT TO APPEAL. 

        II 

LIGGETT, DECIDED IN 1928, BELONGS TO THAT VINTAGE OF DECISIONS WHICH
EXALTED SUBSTANTIVE DUE PROCESS BY STRIKING DOWN STATE LEGISLATION
WHICH A MAJORITY OF THE COURT DEEMED UNWISE.  LIGGETT HAS TO DATE NOT
BEEN EXPRESSLY OVERRULED.  WE COMMENTED ON IT DISPARAGINGLY, HOWEVER,
IN DANIEL V. FAMILY SECURITY LIFE INS. CO., 336 U.S. 220, WHICH
CONCERNED THE CONSTITUTIONALITY OF A STATE STATUTE PROVIDING THAT LIFE
INSURANCE COMPANIES AND THEIR AGENTS MAY NOT OPERATE AN UNDERTAKING
BUSINESS AND UNDERTAKERS MAY NOT SERVE AS AGENTS FOR LIFE INSURANCE
COMPANIES.  WE NOTED THAT LIGGETT HELD THAT IT WAS "CLEAR" THAT "MERE
STOCK OWNERSHIP IN A CORPORATION, OWNING AND OPERATING A DRUG STORE,
CAN HAVE NO REAL OR SUBSTANTIAL RELATION TO THE PUBLIC HEALTH; AND THAT
THE ACT IN QUESTION CREATES AN UNREASONABLE AND UNNECESSARY RESTRICTION
UPON PRIVATE BUSINESS," 278 U.S., AT 113.  IN DANIEL, HOWEVER, WE
STATED THAT "A PRONOUNCED SHIFT OF EMPHASIS SINCE THE LIGGETT CASE,"
336 U.S., AT 225, HAD DEPRIVED THE WORDS "UNREASONABLE" AND "ARBITRARY"
OF THE MEANING WHICH LIGGETT ASCRIBED TO THEM.  WE HAD INDEED HELD IN
LINCOLN UNION V. NORTHWESTERN CO., 335 U.S. 525, THAT A STATE HAD
POWER, SO FAR AS THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WAS
CONCERNED, TO LEGISLATE THAT NO PERSON SHOULD BE DENIED THE OPPORTUNITY
TO OBTAIN OR RETAIN EMPLOYMENT BECAUSE HE WAS OR WAS NOT A MEMBER OF A
LABOR UNION.  AFTER REVIEWING NEBBIA V. NEW YORK, 291 U.S. 502, ADAIR
V. UNITED STATES, 208 U.S. 161, AND COPPAGE V. KANSAS, 236 U.S. 1, WE
SAID: 

     "THIS COURT BEGINNING AT LEAST AS EARLY AS 1934, WHEN THE

NEBBIA CASE WAS DECIDED, HAS STEADILY REJECTED THE DUE PROCESS

  PHILOSOPHY ENUNCIATED IN THE ADAIR-COPPAGE LINE OF CASES.  IN

  DOING SO IT HAS CONSCIOUSLY RETURNED CLOSER AND CLOSER TO THE

  EARLIER CONSTITUTIONAL PRINCIPLE THAT STATES HAVE POWER TO

  LEGISLATE AGAINST WHAT ARE FOUND TO BE INJURIOUS PRACTICES IN

  THEIR INTERNAL COMMERCIAL AND BUSINESS AFFAIRS, SO LONG AS THEIR

  LAWS DO NOT RUN AFOUL OF SOME SPECIFIC FEDERAL CONSTITUTIONAL

  PROHIBITION, OR OF SOME VALID FEDERAL LAW . . . UNDER THIS

  CONSTITUTIONAL DOCTRINE THE DUE PROCESS CLAUSE IS NO LONGER TO BE

  SO BROADLY CONSTRUED THAT THE CONGRESS AND STATE LEGISLATURES ARE

 PUT IN A STRAIT JACKET WHEN THEY ATTEMPT TO SUPPRESS BUSINESS AND

  INDUSTRIAL CONDITIONS WHICH THEY REGARD AS OFFENSIVE TO THE

  PUBLIC WELFARE."  335 U.S., AT 536 - 537. 

WE REACHED THE SAME RESULT IN FERGUSON V. SKRUPA, 372 U.S. 726,
WHERE WE SUSTAINED THE CONSTITUTIONALITY OF A STATE LAW PROHIBITING
PERSONS OTHER THAN LAWYERS FROM ENGAGING IN THE BUSINESS OF DEBT
ADJUSTING AND DEBT POOLING.  WE SAID: 

"WE CONCLUDE THAT THE KANSAS LEGISLATURE WAS FREE TO DECIDE FOR
ITSELF THAT LEGISLATION WAS NEEDED TO DEAL WITH THE BUSINESS OF DEBT
ADJUSTING.  UNQUESTIONABLY, THERE ARE ARGUMENTS SHOWING THAT THE
BUSINESS OF DEBT ADJUSTING HAS SOCIAL UTILITY, BUT SUCH ARGUMENTS ARE
PROPERLY ADDRESSED TO THE LEGISLATURE, NOT TO US.  WE REFUSE TO SIT AS
A 'SUPERLEGISLATURE TO WEIGH THE WISDOM OF LEGISLATION,' AND WE
EMPHATICALLY REFUSE TO GO BACK TO THE TIME WHEN COURTS USED THE DUE
PROCESS CLAUSE 'TO STRIKE DOWN STATE LAWS, REGULATORY OF BUSINESS AND
INDUSTRIAL CONDITIONS, BECAUSE THEY MAY BE UNWISE, IMPROVIDENT, OR OUT
OF HARMONY WITH A PARTICULAR SCHOOL OF THOUGHT.'  NOR ARE WE ABLE OR
WILLING TO DRAW LINES BY CALLING A LAW 'PROHIBITORY' OR 'REGULATORY.' 
WHETHER THE LEGISLATURE TAKES FOR ITS TEXTBOOK ADAM SMITH, HERBERT
SPENCER, LORD KEYNES, OR SOME OTHER IS NO CONCERN OF OURS.  THE KANSAS
DEBT ADJUSTING STATUTE MAY BE WISE OR UNWISE.  BUT RELIEF, IF ANY BE
NEEDED, LIES NOT WITH US BUT WITH THE BODY CONSTITUTED TO PASS LAWS FOR
THE STATE OF KANSAS."  ID., AT 731 - 732 (FOOTNOTES OMITTED).     THE
MAJORITY OF THE COURT IN LIGGETT FOR WHICH MR. JUSTICE SUTHERLAND SPOKE
HELD THAT BUSINESS OR PROPERTY RIGHTS COULD BE REGULATED UNDER THE
FOURTEENTH AMENDMENT ONLY IF THE "LEGISLATION BEARS A REAL AND
SUBSTANTIAL RELATION TO THE PUBLIC HEALTH, SAFETY, MORALS, OR SOME
OTHER PHASE OF THE GENERAL WELFARE," 278 U.S., AT 111 - 112.  THE
MAJORITY HELD THE ACT GOVERNING PHARMACIES "CREATES AN UNREASONABLE AND
UNNECESSARY RESTRICTION UPON PRIVATE BUSINESS."  ID., AT 113.  THE
OPPOSED VIEW STATED BY MR. JUSTICE HOLMES, AND CONCURRED IN BY MR.
JUSTICE BRANDEIS, WAS: 

     A STANDING CRITICISM OF THE USE OF CORPORATIONS IN BUSINESS IS

  THAT IT CAUSES SUCH BUSINESS TO BE OWNED BY PEOPLE WHO DO NOT

  KNOW ANYTHING ABOUT IT.  ARGUMENT HAS NOT BEEN SUPPOSED TO BE

  NECESSARY IN ORDER TO SHOW THAT THE DIVORCE BETWEEN THE POWER OF

  CONTROL AND KNOWLEDGE IS AN EVIL.  THE SELLING OF DRUGS AND

  POISONS CALLS FOR KNOWLEDGE IN A HIGH DEGREE, AND PENNSYLVANIA

  AFTER ENACTING A SERIES OF OTHER SAFEGUARDS HAS PROVIDED THAT IN

THAT MATTER THE DIVORCE SHALL NOT BE ALLOWED.  OF COURSE,

NOTWITHSTANDING THE REQUIREMENT THAT IN CORPORATIONS HEREAFTER

  FORMED ALL THE STOCKHOLDERS SHALL BE LICENSED PHARMACISTS, IT

  STILL WOULD BE POSSIBLE FOR A STOCKHOLDER TO CONTENT HIMSELF WITH

  DRAWING DIVIDENDS AND TO TAKE NO HAND IN THE COMPANY'S AFFAIRS. 

  BUT OBVIOUSLY HE WOULD BE MORE LIKELY TO OBSERVE THE BUSINESS

  WITH AN INTELLIGENT EYE THAN A CASUAL INVESTOR WHO LOOKED ONLY TO

  THE STANDING OF THE STOCK IN THE MARKET.  THE CONSTITUTION DOES

  NOT MAKE IT A CONDITION OF PREVENTIVE LEGISLATION THAT IT SHOULD

 WORK A PERFECT CURE.  IT IS ENOUGH IF THE QUESTIONED ACT HAS A

  MANIFEST TENDENCY TO CURE OR AT LEAST TO MAKE THE EVIL LESS." 

  ID., AT 114 - 115. 

THOSE TWO OPPOSED VIEWS OF PUBLIC POLICY ARE CONSIDERATIONS FOR THE
LEGISLATIVE CHOICE.  THE LIGGETT CASE WAS A CREATION AT WAR WITH THE
EARLIER CONSTITUTIONAL VIEW OF LEGISLATIVE POWER, MUNN V. ILLINOIS, 94
U.S. 113, 132, 134, AND OPPOSED TO OUR MORE RECENT DECISIONS.  OLSEN V.
NEBRASKA, 313 U.S. 236, 241; WILLIAMSON V. LEE OPTICAL CO., 348 U.S.
483, 487 - 488; DAY-BRITE LIGHTING, INC. V. MISSOURI, 342 U.S. 421, AS
WELL AS THE DANIEL, LINCOLN UNION, AND FERGUSON CASES ALREADY
DISCUSSED.  THE LIGGETT CASE, BEING A DERELICT IN THE STREAM OF THE
LAW, IS HEREBY OVERRULED.  WE REVERSE AND REMAND THE JUDGMENT BELOW AND
FREE THE COURTS AND AGENCIES OF NORTH DAKOTA FROM WHAT THE STATE
SUPREME COURT DEEMED TO BE THE MANDATE OF LIGGETT. 

              SO ORDERED. 

/1/  N. D. CENT. CODE 43 - 15 - 35 (5) (SUPP. 1973) PROVIDES:
"REQUIREMENTS FOR PERMIT TO OPERATE PHARMACY.--THE BOARD SHALL ISSUE A
PERMIT TO OPERATE A PHARMACY, OR A RENEWAL PERMIT, UPON SATISFACTORY
PROOF THAT:

        .          .          .        . 

"5.  THE APPLICANT FOR SUCH PERMIT IS QUALIFIED TO CONDUCT THE
PHARMACY, AND IS A REGISTERED PHARMACIST IN GOOD STANDING OR IS A
PARTNERSHIP, EACH ACTIVE MEMBER OF WHICH IS A REGISTERED PHARMACIST IN
GOOD STANDING, OR A CORPORATION OR ASSOCIATION, THE MAJORITY STOCK IN
WHICH IS OWNED BY REGISTERED PHARMACISTS IN GOOD STANDING, ACTIVELY AND
REGULARLY EMPLOYED IN AND RESPONSIBLE FOR THE MANAGEMENT, SUPERVISION,
AND OPERATION OF SUCH PHARMACY . . .

        .          .          .       . 

"THE PROVISION OF SUBSECTION 5 OF THIS SECTION SHALL NOT APPLY TO
THE HOLDER OF A PERMIT ON JULY 1, 1963, IF OTHERWISE QUALIFIED TO
CONDUCT THE PHARMACY, PROVIDED THAT ANY SUCH PERMIT HOLDER WHO SHALL
DISCONTINUE OPERATIONS UNDER SUCH PERMIT OR FAIL TO RENEW SUCH PERMIT
UPON EXPIRATION SHALL NOT THEREAFTER BE EXEMPT FROM THE PROVISIONS OF
SUCH SUBSECTION AS TO SUCH DISCONTINUED OR LAPSED PERMIT.  THE
PROVISIONS OF SUBSECTION 5 OF THIS SECTION SHALL NOT APPLY TO HOSPITAL
PHARMACIES FURNISHING SERVICE ONLY TO PATIENTS IN SUCH HOSPITAL." 

/2/  202 N.W. 2D 140. 

/3/  "FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT OF A
STATE IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE SUPREME
COURT . . . "  28 U.S.C. 1257. 

/4/  WE HELD IN LOCAL NO. 438 V. CURRY, 371 U.S. 542, THAT A STATE
COURT JUDGMENT WHICH AUTHORIZED A TEMPORARY INJUNCTION AGAINST
PICKETING BECAUSE IN THE COURT'S VIEW THE NATIONAL LABOR RELATIONS
BOARD DID NOT HAVE EXCLUSIVE JURISDICTION WAS "FINAL" FOR PURPOSES OF
28 U.S.C. 1257.  WE DID NOT WAIT UNTIL THE LITIGATION HAD BEEN RESOLVED
IN THE STATE COURT, AS THE STATE COURT HAD FINALLY DETERMINED ITS
JURISDICTION AND ERRONEOUSLY SO.  ID., 15 548. 

IN MERCANTILE NATIONAL BANK V. LANGDEAU, 371 U.S. 555, A RECEIVER
FOR A TEXAS INSURANCE COMPANY SUED TWO NATIONAL BANKS AND THE ONLY
QUESTION TENDERED ON APPEAL FROM THE STATE COURT CONCERNED THE QUESTION
OF VENUE, VIZ., IN WHAT STATE COURT A NATIONAL BANK COULD BE SUED.  IT
IS ARGUED THAT THE STATE COURT JUDGMENT WAS NOT "FINAL" FOR PURPOSES OF
28 U.S.C. 1257.  WE REJECTED THAT VIEW, HOLDING THE JUDGMENT "FINAL,"
SAYING:  "(WE BELIEVE THAT IT SERVES THE POLICY UNDERLYING THE
REQUIREMENT OF FINALITY IN 28 U.S.C. 1257 TO DETERMINE NOW IN WHICH
STATE COURT APPELLANTS MAY BE TRIED RATHER THAN TO SUBJECT THEM, AND
APPELLEE, TO LONG AND COMPLEX LITIGATION WHICH MAY ALL BE FOR NAUGHT IF
CONSIDERATION OF THE PRELIMINARY QUESTION OF VENUE IS POSTPONED UNTIL
THE CONCLUSION OF THE PROCEEDINGS."  ID., AT 558. 

/5/  IN CALIFORNIA V. STEWART, 384 U.S. 436, 498 - 499, IN A CAPITAL
CASE THE STATE SUPREME COURT SET ASIDE THE VERDICT ON A FEDERAL
CONSTITUTIONAL GROUND AND DIRECTED THAT THE DEFENDANT (RESPONDENT) BE
RETRIED.  HE MOVED THAT WE DISMISS THE STATE'S PETITION, WHICH WE HAD
GRANTED, FOR LACK OF A "FINAL" JUDGMENT.  WE NOTED, HOWEVER, THAT IF ON
A RETRIAL HE WERE ACQUITTED, THERE WAS NO APPEAL AVAILABLE TO THE
STATE.  WE THEREFORE HELD THAT THE JUDGMENT UNDER REVIEW WAS "FINAL"
FOR OUR PURPOSES.  ID., AT 498 N. 71. 

IN BRADY V. MARYLAND, 373 U.S. 83, THE STATE COURT HAD GIVEN A
DEFENDANT POST-CONVICTION RELIEF AND REMANDED THE CASE FOR RETRIAL ON
THE QUESTION OF PUNISHMENT.  WE TOOK THE CASE TO DETERMINE WHETHER THE
SUPPRESSION OF EVIDENCE BY THE PROSECUTION ENTITLED THE DEFENDANT TO A
RETRIAL ON THE ISSUE OF GUILT AS WELL AS PUNISHMENT.  WE HELD THAT THE
ISSUE OF GUILT WAS QUITE INDEPENDENT OF THE ISSUE OF PUNISHMENT AND
THAT IT WAS TIME TO DECIDE THE DUE PROCESS AND/OR EQUAL PROTECTION
QUESTIONS PRESENTED BY THE STATE DECISION. 

A. WILLIAM LUCAS ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

MART R. VOGEL ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
/1/ 

/1/  ARTHUR B. HANSON, RALPH N. ALBRIGHT, JR., AND SIDNEY WALLER
FILED A BRIEF FOR THE AMERICAN PHARMACEUTICAL ASSN. ET AL. AS AMICI
CURIAE URGING REVERSAL. 

THOMAS D. QUINN, JR., AND HAROLD ROSENWALD FILED A BRIEF FOR THE
NATIONAL ASSOCIATION OF CHAIN DRUG STORES, INC., AS AMICUS CURIAE
URGING AFFIRMANCE. 
..END :












GOLDEN STATE BOTTLING CO. V. N.L.R.B., 414 U.S. 168 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 72 - 702.  ARGUED OCTOBER 11, 1973--DECIDED DECEMBER 5,

           1973; 467 F.2D 164, AFFIRMED. 


    PETITIONER ALL AMERICAN BEVERAGES, INC. (ALL AMERICAN),

  PURCHASED THE SOFT DRINK BOTTLING AND DISTRIBUTION BUSINESS OF

  PETITIONER GOLDEN STATE BOTTLING CO. (GOLDEN STATE) AFTER THE

  NATIONAL LABOR RELATIONS BOARD (NLRB) HAD ORDERED GOLDEN STATE,

  "ITS OFFICERS, AGENTS, SUCCESSORS, AND ASSIGNS" TO REINSTATE WITH

  BACK PAY A DRIVER-SALESMAN WHOSE DISCHARGE BY GOLDEN STATE WAS

  FOUND TO HAVE BEEN AN UNFAIR LABOR PRACTICE.  IN A SUBSEQUENT

  BACK-PAY SPECIFICATION PROCEEDING TO WHICH BOTH FIRMS WERE

  PARTIES UPON FINDING THAT ALL AMERICAN AFTER THE ACQUISITION

  CONTINUED THE BUSINESS WITHOUT INTERRUPTION OR SUBSTANTIAL CHANGE

  IN OPERATIONS, EMPLOYEE COMPLEMENT, OR SUPERVISORY PERSONNEL, AND

  THAT HENCE ALL AMERICAN, HAVING ACQUIRED THE BUSINESS WITH

  KNOWLEDGE OF THE OUTSTANDING NLRB ORDER, WAS A "SUCCESSOR" FOR

  PURPOSES OF THE NATIONAL LABOR RELATIONS ACT (NLRA) LIABLE FOR

  THE REINSTATEMENT OF THE DRIVER-SALESMAN WITH BACK PAY, THE NLRB

  ORDERED ALL AMERICAN TO REINSTATE HIM AND BOTH FIRMS JOINTLY OR

  SEVERALLY TO PAY HIM A SPECIFIED SUM OF BACK PAY.  THE COURT OF

  APPEALS ENFORCED THE ORDER.  HELD: 

     1.  THE COURT OF APPEALS DID NOT ERR IN DETERMINING THAT, ON

  THE RECORD AS A WHOLE, SUBSTANTIAL EVIDENCE SUPPORTED THE NLRB'S

  FINDING THAT ALL AMERICAN PURCHASED THE BUSINESS WITH KNOWLEDGE

OF THE UNFAIR LABOR PRACTICE LITIGATION, SINCE IT CANNOT BE SAID

  ON THE BASIS OF THE RECORD THAT THE COURT OF APPEALS

  "MISAPPREHENDED OR GROSSLY MISAPPLIED"  THE STANDARD OF REVIEW. 

  UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474.  PP.172 - 174. 

     2.  THE ISSUANCE OF A REINSTATEMENT AND BACK-PAY ORDER AGAINST

  A BONA FIDE SUCCESSOR THAT DID NOT ITSELF COMMIT THE UNFAIR LABOR

  PRACTICE DOES NOT EXCEED THE NLRB'S REMEDIAL POWERS UNDER 10 (C)

  OF THE NLRA, SINCE SUCH POWERS INCLUDE BROAD DISCRETION TO

  FASHION AND ISSUE SUCH AN ORDER IN ORDER TO ACHIEVE THE ENDS AND

EFFECTUATE THE POLICIES OF THE ACT.  PP.175 - 177. 

3.  FED. RULE CIV. PROC. 65(D), WHICH PROVIDES THAT INJUNCTIONS

  AND RESTRAINING ORDERS SHALL BE BINDING ONLY UPON THE PARTIES TO

  THE ACTION, THEIR OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND

  ATTORNEYS, AND UPON THOSE PERSONS IN ACTIVE CONCERT OR

  PARTICIPATION WITH THEM WHO RECEIVE ACTUAL NOTICE OF THE ORDER,

  DOES NOT BAR JUDICIAL ENFORCEMENT OF THE NLRB ORDER RUNNING TO

  ALL AMERICAN, SINCE A BONA FIDE SUCCESSOR, ACQUIRING, WITH

  KNOWLEDGE THAT THE WRONG REMAINS UNREMEDIED, THE EMPLOYING

  ENTERPRISE WHICH WAS THE LOCUS OF THE UNFAIR LABOR PRACTICE, MAY

  BE CONSIDERED IN PRIVITY WITH ITS PREDECESSOR FOR PURPOSES OF

  RULE 65(D).  PP.177 - 181. 

     4.  THE NLRB PROPERLY EXERCISED ITS DISCRETION IN ISSUING THE

  ORDER AGAINST ALL AMERICAN BY STRIKING AN EQUITABLE BALANCE AMONG

  THE CONFLICTING LEGITIMATE INTERESTS OF THE BONA FIDE SUCCESSOR,

  THE PUBLIC, AND THE AFFECTED EMPLOYEE FOR PURPOSES OF

  EFFECTUATING THE NATIONAL LABOR POLICIES OF AVOIDING LABOR

  STRIFE, PREVENTING A DETERRENT EFFECT ON THE EXERCISE OF RIGHTS

GUARANTEED EMPLOYEES BY 7 OF THE NLRA, AND PROTECTING THE

  VICTIMIZED EMPLOYEE, SUCH POLICIES BEING ACHIEVED AT A RELATIVELY

  MINIMAL COST TO THE BONA FIDE SUCCESSOR.  PP.181 - 185. 

     5.  THE NLRB DID NOT ERR IN ORDERING BOTH FIRMS JOINTLY OR

  SEVERALLY TO PAY THE DRIVER-SALESMAN A SPECIFIED SUM OF BACK PAY,

  SINCE AN OFFENDING PREDECESSOR-EMPLOYER SHOULD AT LEAST BE

  REQUIRED TO MAKE WHOLE THE DISCHARGEE FOR ANY LOSS OF PAY

  SUFFERED BY REASON OF THE DISCHARGE UNTIL SUCH TIME AS HE SECURES

  SUBSTANTIALLY EQUIVALENT EMPLOYMENT, SINCE JOINT AND SEVERAL

  LIABILITY WILL MORE FULLY INSURE THAT THE EMPLOYEE IS FULLY

  RECOMPENSED BY PROTECTING HIM AGAINST, E.G., THE SUCCESSOR'S

  INSOLVENCY, AND SINCE THE POSSIBILITY THAT THE SUCCESSOR WILL

 UNJUSTIFIABLY DELAY REINSTATEMENT TO THE PREDECESSOR'S PREJUDICE

  CAN BE MET BY A PROTECTIVE PROVISION IN THE CONTRACT OF SALE. 

  PP.186 - 187. 

     6.  THE FACT THAT THE DRIVER-SALESMAN, BUT FOR HIS DISCHARGE
AS

  AN ORDINARY EMPLOYEE WOULD, UNDER GOLDEN STATE'S POLICY, HAVE

  BECOME A DISTRIBUTOR ABOUT A YEAR LATER AND AS AN INDEPENDENT

CONTRACTOR WOULD HAVE BEEN EXCLUDED FROM NLRA COVERAGE, DID NOT

  PRECLUDE THE NLRB FROM INCLUDING IN THE GROSS BACK PAY

  COMPUTATION THE DISCHARGEE'S PUTATIVE EARNINGS AS A DISTRIBUTOR,

  SINCE A REINSTATEMENT AND BACK-PAY ORDER IS AIMED AT RESTORING

  THE STATUS QUO THAT WOULD HAVE OBTAINED BUT FOR THE EMPLOYER'S

  UNFAIR LABOR PRACTICE.  PP.187 - 189. 

BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION FOR DECISION IN THIS CASE IS WHETHER THE BONA
FIDE PURCHASER OF A BUSINESS, WHO ACQUIRES AND CONTINUES THE BUSINESS
WITH KNOWLEDGE THAT HIS PREDECESSOR HAS COMMITTED AN UNFAIR LABOR
PRACTICE IN THE DISCHARGE OF AN EMPLOYEE, MAY BE ORDERED BY THE
NATIONAL LABOR RELATIONS BOARD TO REINSTATE THE EMPLOYEE WITH BACK
PAY. 

PETITIONERS ARE GOLDEN STATE BOTTLING CO., INC. (GOLDEN STATE), AND
ALL AMERICAN BEVERAGES, INC. (ALL AMERICAN).  ALL AMERICAN BOUGHT
GOLDEN STATE'S SOFT DRINK BOTTLING AND DISTRIBUTION BUSINESS AFTER THE
NATIONAL LABOR RELATIONS BOARD HAD ORDERED GOLDEN STATE, "ITS OFFICERS,
AGENTS, SUCCESSORS, AND ASSIGNS" TO REINSTATE WITH BACK PAY A DRIVER
SALESMAN, KENNETH L BAKER, WHOSE DISCHARGE BY GOLDEN STATE WAS FOUND BY
THE BOARD TO HAVE BEEN AN UNFAIR LABOR PRACTICE.  /1/  IN A SUBSEQUENT
BACK-PAY SPECIFICATION PROCEEDING TO WHICH BOTH GOLDEN STATE AND ALL
AMERICAN WERE PARTIES, SEE 29 CFR 102.52 - 102.59, THE BOARD FOUND THAT
ALL AMERICAN CONTINUED AFTER THE ACQUISITION TO CARRY ON THE BUSINESS
WITHOUT INTERRUPTION OR SUBSTANTIAL CHANGES IN METHOD OF OPERATION,
EMPLOYEE COMPLEMENT, OR SUPERVISORY PERSONNEL.  IN THAT CIRCUMSTANCE,
ALTHOUGH ALL AMERICAN WAS A BONA FIDE PURCHASER OF THE BUSINESS,
UNCONNECTED WITH GOLDEN STATE, THE BOARD FOUND THAT ALL AMERICAN,
HAVING ACQUIRED THE BUSINESS WITH KNOWLEDGE OF THE OUTSTANDING BOARD
ORDER, WAS A "SUCCESSOR" FOR PURPOSES OF THE NATIONAL LABOR RELATIONS
ACT AND LIABLE FOR THE REINSTATEMENT OF BAKER WITH BACK PAY UNDER THE
PRINCIPLES ANNOUNCED IN PERMA VINYL CORP., 164 N.L.R.B. 968 (1967),
ENFORCED SUB NOM. UNITED STATES PIPE & FOUNDRY CO. V. NLRB, 398 F.2D
544 (CA5 1968).  /2/  THE BOARD THEREFORE ORDERED THAT ALL AMERICAN
REINSTATE BAKER AND THAT GOLDEN STATE AND ALL AMERICAN JOINTLY OR
SEVERALLY PAY BAKER A SPECIFIED SUM OF NET BACK PAY.  187 N.L.R.B. 1017
(1971).  THE COURT OF APPEALS FOR THE NINTH CIRCUIT, ONE JUDGE
DISSENTING, ENFORCED THE ORDER, 467 F.2D 164 (1972).  WE GRANTED
CERTIORARI, 410 U.S. 953 (1973).  WE AFFIRM. 

        I 

THERE IS A THRESHOLD QUESTION OF WHETHER THE COURT OF APPEALS ERRED
IN DETERMINING THAT THE EVIDENCE "OFFERED SUBSTANTIAL SUPPORT FOR THE
BOARD'S FINDING THAT ALL AMERICAN PURCHASED (THE BOTTLING BUSINESS)
WITH KNOWLEDGE OF THE UNFAIR LABOR PRACTICE LITIGATION."  467 F.2D, AT
165.  WE ADDRESS THAT QUESTION MINDFUL OF THE CONGRESSIONALLY IMPOSED
LIMITATION ON THIS COURT'S REVIEW OF THE COURT OF APPEALS'
DETERMINATION: 

"WHETHER ON THE RECORD AS A WHOLE THERE IS SUBSTANTIAL EVIDENCE TO
SUPPORT AGENCY FINDINGS IS A QUESTION WHICH CONGRESS HAS PLACED IN THE
KEEPING OF THE COURT OF APPEALS.  THIS COURT WILL INTERVENE ONLY IN
WHAT OUGHT TO BE THE RARE INSTANCE WHEN THE STANDARD APPEARS TO HAVE
BEEN MISAPPREHENDED OR GROSSLY MISAPPLIED."  UNIVERSAL CAMERA CORP. V.
NLRB, 340 U.S. 474, 491 (1951).  (EMPHASIS ADDED.) 

THUS LIMITED, WE CANNOT FIND FAULT WITH THE COURT OF APPEALS'
CONCLUSION THAT, ON THE RECORD AS A WHOLE SUBSTANTIAL EVIDENCE
SUPPORTED THE BOARD'S FINDING THAT ALL AMERICAN PURCHASED THE BUSINESS
WITH KNOWLEDGE OF THE UNFAIR LABOR PRACTICE LITIGATION.  EUGENE
SCHILLING, GOLDEN STATE'S SECRETARY AND MANAGER OF THE BOTTLING
BUSINESS, WHO HAD DISCHARGED BAKER AND THEN CLOSELY FOLLOWED THE
PROGRESS OF THE LITIGATION, CONTINUED WITH THE ENTERPRISE UNDER ALL
AMERICAN'S OWNERSHIP WITH THE TITLE OF GENERAL MANAGER AND
"PRESIDENT."  INDEED, ALL AMERICAN'S PURCHASE OF THE BUSINESS WAS
CONDITIONED ON SCHILLING'S STAYING ON IN A MANAGERIAL CAPACITY; THE
SALES CONTRACT EXPRESSLY STIPULATED THAT SCHILLING "SHALL HAVE AGREED
TO BE EMPLOYED BY (ALL AMERICAN) FOR A PERIOD OF ONE YEAR AFTER THE
CLOSING DATE AS GENERAL MANAGER . . . " SCHILLING PARTICIPATED ON AT
LEAST ONE OCCASION WITH GOLDEN STATE'S PRESIDENT, EDWIN J CROFOOT, IN
THE SALE NEGOTIATIONS.  EVEN IF STRICT AGENCY PRINCIPLES WOULD NOT
IMPUTE SCHILLING'S KNOWLEDGE TO ALL AMERICAN UNTIL SCHILLING ACTUALLY
ENTERED ITS EMPLOY, SEE RESTATEMENT (SECOND) OF AGENCY 9 (3) (1958);
THOMAS ENGINE CORP., 179 N.L.R.B. 1029, 1042 (1970), ENFORCED SUB NOM.
UAW V. NLRB, 442 F.2D 1180 (CA9 1971), THE COURT OF APPEALS CANNOT BE
SAID TO HAVE "MISAPPREHENDED OR GROSSLY MISAPPLIED" THE GOVERNING
STANDARD IN APPRAISING THIS EVIDENCE AS SUFFICIENTLY SUBSTANTIAL TO
SUPPORT AN INFERENCE THAT SCHILLING INFORMED HIS PROSPECTIVE EMPLOYER
OF THE LITIGATION BEFORE COMPLETION OF THE SALE.  IT IS TRUE THAT BOTH
SCHILLING AND CROFOOT TESTIFIED AT THE HEARING IN THE SPECIFICATION
PROCEEDING THAT THEY HAD NOT INFORMED ALL AMERICAN OF THE LITIGATION
BEFORE THE SALE WAS COMPLETED.  BUT THE TRIAL EXAMINER REFUSED TO
CREDIT THEIR TESTIMONY IN LIGHT OF DOCUMENTARY EVIDENCE FROM WHICH HE
INFERRED THAT THE GOLDEN STATE OFFICIALS HAD ATTEMPTED TO CONCEAL THE
SALE FROM THE BOARD, 187 N.L.R.B., AT 1021.  THE EXAMINER ALSO REFUSED
TO CREDIT CROFOOT'S TESTIMONY THAT, WHILE ALL AMERICAN EXPRESSLY ASKED
HIM WHETHER ANY LITIGATION WAS PENDING, HE DID NOT MENTION THE UNFAIR
LABOR PRACTICE CASE BECAUSE HE HAD FORGOTTEN IT, ALTHOUGH ADMITTING
THAT HE HAD AUTHORIZED PAYMENT OF SUBSTANTIAL FEES IN CONNECTION WITH
IT.  IBID.  FINALLY, THE EXAMINER INFERRED FROM THE UNEXPLAINED FAILURE
OF ALL AMERICAN TO PRODUCE ITS NEGOTIATORS AS WITNESSES THAT THEIR
TESTIMONY WOULD NOT HAVE SUPPORTED ALL AMERICAN'S DISCLAIMER OF
KNOWLEDGE.  /3/ 

ON THIS STATE OF THE RECORD, THERE IS NO JUSTIFICATION FOR THIS
COURT'S INTERVENTION, SINCE UNIVERSAL CAMERA PRECLUDES US FROM
SUBSTITUTING OUR JUDGMENT FOR THAT OF THE COURT OF APPEALS.  "THIS IS
NOT THE PLACE . . . TO REVERSE A COURT OF APPEALS BECAUSE WERE WE IN
ITS PLACE WE WOULD FIND THE RECORD TILTING ONE WAY RATHER THAN THE
OTHER . . . " NLRB V. PITTSBURGH S.S. CO., 340 U.S. 498, 503 (1951);
SEE CENTRAL HARDWARE CO. V. NLRB, 407 U.S. 539, 548 (1972). 

        II 

THE BOARD HAS PURSUED AN UNEVEN COURSE IN ITS TREATMENT OF A BONA
FIDE SUCCESSOR'S LIABILITY TO REMEDY THE UNFAIR LABOR PRACTICES OF ITS
PREDECESSOR.  IN 1944 THE BOARD DETERMINED THAT LIABILITY WOULD NOT BE
IMPOSED ON A BONA FIDE SUCCESSOR, SOUTH CAROLINA GRANITE CO., 58
N.L.R.B. 1448, ENFORCED SUB NOM. NLRB V. BLAIR QUARRIES, INC., 152 F.2D
25 (CA4 1945).  IN 1947 THE BOARD ABANDONED THAT VIEW AND DETERMINED
THAT JOINT AND SEVERAL REMEDIAL RESPONSIBILITY WOULD BE IMPOSED UPON A
BONA FIDE SUCCESSOR WHO HAD KNOWLEDGE OF THE SELLER'S UNFAIR LABOR
PRACTICE AT THE TIME OF THE PURCHASE, ALEXANDER MILBURN CO., 78
N.L.R.B. 747.  WHEN, HOWEVER, TWO COURTS OF APPEALS REFUSED TO ENFORCE
REMEDIAL ORDERS AGAINST BONA FIDE SUCCESSORS, NLRB V. BIRDSALL
STOCKDALE MOTOR CO., 208 F.2D 234 (CA10 1953), AND NLRB V. LUNDER SHOE
CORP., 211 F.2D 284 (CA1 1954), THE BOARD, IN 1954, RE-EXAMINED AND
OVERRULED ALEXANDER MILBURN CO., DECLARING, IN SYMNS GROCER CO., 109
N.L.R.B. 346, THAT "(NO PROVISION OF THE (NATIONAL LABOR RELATIONS) ACT
AUTHORIZES THE BOARD TO IMPOSE THE RESPONSIBILITY FOR REMEDYING UNFAIR
LABOR PRACTICES ON PERSONS WHO DID NOT ENGAGE THEREIN."  ID., AT 348. 
FINALLY, IN 1967, IN YET ANOTHER TURNABOUT, THE BOARD OVERRULED SYMNS
GROCER CO. IN PERMA VINYL, SUPRA, AND ANNOUNCED THAT, IN CIRCUMSTANCES
THERE DEFINED, SEE N. 2, SUPRA, REMEDIAL ORDERS WOULD BE IMPOSED UPON
BONA FIDE SUCCESSORS FOR THE UNFAIR LABOR PRACTICES OF THEIR
PREDECESSORS. 

WE MUST CONSIDER AT THE OUTSET WHETHER THE ISSUANCE OF A
REINSTATEMENT AND BACK-PAY ORDER AGAINST A BONA FIDE SUCCESSOR EXCEEDS
THE BOARD'S REMEDIAL POWERS UNDER 10(C) OF THE ACT, 29 U.S.C. 160 (C). 

"IF UPON THE PREPONDERANCE OF THE TESTIMONY TAKEN THE BOARD SHALL BE
OF THE OPINION THAT ANY PERSON NAMED IN THE COMPLAINT HAS ENGAGED IN .
. . ANY SUCH UNFAIR LABOR PRACTICE, THEN THE BOARD . . . SHALL ISSUE
AND CAUSE TO BE SERVED ON SUCH PERSON AN ORDER REQUIRING SUCH PERSON TO
CEASE AND DESIST FROM SUCH UNFAIR LABOR PRACTICE, AND TO TAKE SUCH
AFFIRMATIVE ACTION INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT
BACK PAY, AS WILL EFFECTUATE THE POLICIES OF THIS ACT . . . "
(EMPHASIS ADDED.)  THE BOARD'S RESTRICTIVE VIEW IN SYMNS GROCER CO. OF
ITS REMEDIAL POWERS DERIVED FROM A LIMITATION PERCEIVED TO INHERE IN
THE WORDS "ANY PERSON NAMED IN THE COMPLAINT HAS ENGAGED IN . . . ANY
SUCH UNFAIR LABOR PRACTICE" (EMPHASIS ADDED).  THESE WORDS WERE
REGARDED AS PRECLUDING AUTHORITY TO ISSUE REMEDIAL ORDERS AGAINST
PERSONS, LIKE BONA FIDE SUCCESSORS, WHO HAD NOT PERPETRATED THE UNFAIR
LABOR PRACTICE.  IN PERMA VINYL, HOWEVER, THE BOARD FOUND A BROADER
AUTHORITY IN THE WORDS OF THE SECTION AUTHORIZING THE BOARD "TO TAKE
SUCH AFFIRMATIVE ACTION . . . AS WILL EFFECTUATE THE POLICIES OF THIS
ACT."  THESE WORDS WERE CONSTRUED AS GRANTING "BROAD ADMINISTRATIVE
POWER . . . TO FRAME SUCH REMEDIAL ORDERS . . . NOT, OF COURSE,
RESTRICTED TO REQUIRING REMEDIAL ACTION BY THE OFFENDING EMPLOYER
ALONE," 164 N.L.R.B., AT 969, AS WERE NECESSARY TO FURTHER THE PUBLIC
INTEREST SUBSERVED BY THE ACT.  SEE NLRB V. COLTEN, 105 F.2D 179 (CA6
1939). 

WE AGREE THAT THE BOARD'S REMEDIAL POWERS UNDER 10 (C) INCLUDE BROAD
DISCRETION TO FASHION AND ISSUE THE ORDER BEFORE US AS RELIEF ADEQUATE
TO ACHIEVE THE ENDS, AND EFFECTUATE THE POLICIES, OF THE ACT.  EARLY
ON, THIS COURT RECOGNIZED THAT 10(C) DOES NOT LIMIT THE BOARD'S
REMEDIAL POWERS TO THE ACTUAL PERPETRATOR OF AN UNFAIR LABOR PRACTICE
AND THEREBY PREVENT THE BOARD FROM ISSUING ORDERS BINDING A SUCCESSOR
WHO DID NOT HIMSELF COMMIT THE UNLAWFUL ACT.  WE HAVE SAID THAT A BOARD
ORDER THAT, AS IN THIS CASE, RUNS TO THE "OFFICERS, AGENTS, SUCCESSORS,
AND ASSIGNS" OF AN OFFENDING EMPLOYER, MAY BE APPLIED NOT ONLY TO A NEW
EMPLOYER WHO IS "MERELY A DISGUISED CONTINUANCE OF THE OLD EMPLOYER,"
SOUTHPORT PETROLEUM CO. V. NLRB, 315 U.S. 100, 106 (1942), BUT ALSO
"'IN APPROPRIATE CIRCUMSTANCES . . . (TO) THOSE TO WHOM THE BUSINESS
MAY HAVE BEEN TRANSFERRED, WHETHER AS A MEANS OF EVADING THE JUDGMENT
OR FOR OTHER REASONS.'"  REGAL KNITWEAR CO. V. NLRB, 324 U.S. 9, 14
(1945) (EMPHASIS ADDED); SEE ALSO NLRB V. OZARK HARDWOOD CO., 282 F.2D
1, 5 (CA8 1960).  IF THE WORDS "PERSON NAMED IN THE COMPLAINT HAS
ENGAGED IN . . . ANY . . . UNFAIR LABOR PRACTICE"  IN 10 (C) DO NOT
RESTRICT BOARD AUTHORITY TO PREVENT ORDERS RUNNING TO THE OFFENDING
EMPLOYER'S SUCCESSORS AND ASSIGNS WHO HAVE ACQUIRED THE BUSINESS AS A
MEANS OF EVADING THE BOARD ORDER, WE DO NOT SEE HOW THOSE WORDS MAY BE
READ TO BAR THE BOARD FROM ISSUING REINSTATEMENT AND BACK-PAY ORDERS
AGAINST BONA FIDE SUCCESSORS WHEN THE BOARD HAS PROPERLY FOUND SUCH
ORDERS TO BE NECESSARY TO PROTECT THE PUBLIC INTEREST IN EFFECTUATING
THE POLICIES OF THE ACT.  THE BOARD'S ORDERS RUN TO THE EVADER AND THE
BONA FIDE PURCHASER, NOT BECAUSE THE ACT OF EVASION OR THE BONA FIDE
PURCHASE IS AN UNFAIR LABOR PRACTICE, BUT BECAUSE THE BOARD IS
OBLIGATED TO EFFECTUATE THE POLICIES OF THE ACT.  CONSTRUING 10 (C)
THUS TO GRANT THE BOARD REMEDIAL POWER TO ISSUE SUCH ORDERS RESULTS IN
A READING OF THE SECTION, AS IT SHOULD BE READ, IN THE LIGHT OF "'THE
PROVISIONS OF THE WHOLE LAW, AND . . . ITS OBJECT AND POLICY.'"  MASTRO
PLASTICS CORP. V. NLRB, 350 U.S. 270, 285 (1956); SEE NLRB V. LION OIL
CO., 352 U.S. 282, 288 (1957). 

IT IS ALSO ARGUED, HOWEVER, THAT FED. RULE CIV. PROC. 65 (D), IN ANY
EVENT, IS A BAR TO JUDICIAL ENFORCEMENT OF A BOARD ORDER REQUIRING THAT
A BONA FIDE SUCCESSOR REINSTATE WITH BACK PAY AN EMPLOYEE ILLEGALLY
DISCHARGED BY ITS PREDECESSOR.  WE DISAGREE.  /4/  RULE 65(D) PROVIDES
THAT INJUNCTIONS AND RESTRAINING ORDERS SHALL BE "BINDING ONLY UPON THE
PARTIES TO THE ACTION, THEIR OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND
ATTORNEYS, AND UPON THOSE PERSONS IN ACTIVE CONCERT OR PARTICIPATION
WITH THEM WHO RECEIVE ACTUAL NOTICE OF THE ORDER BY PERSONAL SERVICE OR
OTHERWISE."  SEE GENERALLY O. FISS, INJUNCTIONS 691 - 700 (1972).  WE
REJECT PETITIONERS'  CONTENTION THAT REGAL KNITWEAR CO. V. NLRB, SUPRA,
AT 14, SUPPORTS THE ARGUMENT THAT THIS RULE IS A BAR TO JUDICIAL
AUTHORITY TO ENFORCE BOARD ORDERS AGAINST BONA FIDE SUCCESSORS.  IN
REGAL KNITWEAR, THE COURT REFUSED THE OFFENDING EMPLOYER'S APPLICATION
TO STRIKE THE PHRASE "SUCCESSORS AND ASSIGNS" FROM THE BOARD'S ORDER,
CITING WALLING V. JAMES V. REUTER, INC., 321 U.S. 671 (1944), WHICH
INVOLVED AN INJUNCTION AGAINST VIOLATION OF THE FAIR LABOR STANDARDS
ACT.  REGAL KNITWEAR TREATED A BOARD CEASE-AND-DESIST ORDER AS
"SOMEWHAT ANALOGOUS" TO SUCH AN INJUNCTION, AND STATED: 

     "'NOT ONLY IS SUCH AN INJUNCTION ENFORCIBLE BY CONTEMPT

  PROCEEDINGS AGAINST THE CORPORATION, ITS AGENTS AND OFFICERS AND

  THOSE INDIVIDUALS ASSOCIATED WITH IT IN THE CONDUCT OF ITS

  BUSINESS, BUT IT MAY ALSO, IN APPROPRIATE CIRCUMSTANCES, BE

  ENFORCED AGAINST THOSE TO WHOM THE BUSINESS MAY HAVE BEEN

  TRANSFERRED, WHETHER AS A MEANS OF EVADING THE JUDGMENT OR FOR

  OTHER REASONS.'  . . . 

      "WE DO NOT UNDERTAKE TO DECIDE WHETHER OR UNDER WHAT

  CIRCUMSTANCES ANY KIND OF SUCCESSOR OR ASSIGN WILL BE LIABLE FOR

  VIOLATION OF A LABOR BOARD ORDER . . . (WHETHER ONE BRINGS

  HIMSELF IN CONTEMPT AS A 'SUCCESSOR OR ASSIGN' DEPENDS ON AN

  APPRAISAL OF HIS RELATIONS AND BEHAVIOR AND NOT UPON MERE

  CONSTRUCTION OF TERMS OF THE ORDER."  324 U.S. AT 14 - 15. 

PLAINLY THEN, REGAL KNITWEAR RECOGNIZES THAT RULE 65(D) IS NOT A BAR
TO ENFORCEMENT OF ALL BOARD ORDERS RUNNING TO SUCCESSORS OR ASSIGNS NOT
THEMSELVES OFFENDING EMPLOYERS.  THE COURT SIMPLY LEFT OPEN THE
QUESTION OF WHETHER THE RULE PRECLUDES THE ENFORCEMENT OF REMEDIAL
ORDERS RUNNING TO A SUCCESSOR WHO IS A BONA FIDE PURCHASER.  WE ANSWER
THAT QUESTION TODAY BY HOLDING THAT THE RULE IS NOT A BAR TO JUDICIAL
ENFORCEMENT OF THE BOARD ORDER ENTERED AGAINST THE BONA FIDE SUCCESSOR
IN THIS CASE. 

RULE 65(D) "IS DERIVED FROM THE COMMON-LAW DOCTRINE THAT A DECREE OF
INJUNCTION NOT ONLY BINDS THE PARTIES DEFENDANT BUT ALSO THOSE
IDENTIFIED WITH THEM IN INTEREST, IN 'PRIVITY' WITH THEM, REPRESENTED
BY THEM OR SUBJECT TO THEIR CONTROL."  REGAL KNITWEAR, 324 U.S., AT
14.  PERSONS ACQUIRING AN INTEREST IN PROPERTY THAT IS A SUBJECT OF
LITIGATION ARE BOUND BY, OR ENTITLED TO THE BENEFIT OF, A SUBSEQUENT
JUDGMENT, DESPITE A LACK OF KNOWLEDGE.  RESTATEMENT OF JUDGMENTS 89,
AND COMMENT C (1942); SEE 1 J. STORY, EQUITY JURISPRUDENCE 536 (14TH
ED. 1918).  THIS PRINCIPLE HAS NOT BEEN LIMITED TO IN REM OR QUASI IN
REM PROCEEDINGS.  RESTATEMENT OF JUDGMENTS, SUPRA. 89, COMMENT D.; SEE
ICC V. WESTERN N.Y. & P.R. CO., 82 F.192, 194 (WD PA.1897).  WE APPLY
THAT PRINCIPLE HERE IN ORDER TO EFFECTUATE THE PUBLIC POLICIES OF THE
ACT.  "COURTS OF EQUITY MAY, AND FREQUENTLY DO, GO MUCH FARTHER BOTH TO
GIVE AND WITHHOLD RELIEF IN FURTHERANCE OF THE PUBLIC INTEREST THAN
THEY ARE ACCUSTOMED TO GO WHEN ONLY PRIVATE INTERESTS ARE INVOLVED." 
VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 552 (1937); SEE
WALLING V. JAMES V. REUTER, INC., 321 U.S., AT 674 - 675.  WE HOLD THAT
A BONA FIDE PURCHASER, ACQUIRING, WITH KNOWLEDGE THAT THE WRONG REMAINS
UNREMEDIED, THE EMPLOYING ENTERPRISE WHICH WAS THE LOCUS OF THE UNFAIR
LABOR PRACTICE, MAY BE CONSIDERED IN PRIVITY WITH ITS PREDECESSOR FOR
PURPOSES OF RULE 65 (D).  CF. UNITED STATES V. HALL, 472 F.2D 261, 266
267 (CA5 1972); RIVERA V. LAWTON, 35 F.2D 823 (CA1 1929); UNITED
STATES V. DEAN RUBBER MFG. CO., 71 F.SUPP.  96 (WD MO. 1946); UNITED
GILPIN CORP. V. WILMORE, 100 COLO. 453, 68 P.2D 34 (1937); 7 J. MOORE,
FEDERAL PRACTICE 65.13, P.109 AND N.1 (2D ED. 1973). 

OUR HOLDING IN NO WAY CONTRAVENES THE POLICY UNDERLYING RULE 65 (D),
OF NOT HAVING "ORDERS) OR INJUNCTIONS) SO BROAD AS TO MAKE PUNISHABLE
THE CONDUCT OF PERSONS WHO ACT INDEPENDENTLY AND WHOSE RIGHTS HAVE NOT
BEEN ADJUDGED ACCORDING TO LAW."  REGAL KNITWEAR, 324 U.S., AT 13; SEE
ALEMITE MFG. CORP. V. STAFF, 42 F.2D 832 (CA2 1930).  THE TIE BETWEEN
THE OFFENDING EMPLOYER AND THE BONA FIDE PURCHASER OF THE BUSINESS,
SUPPLIED BY A BOARD FINDING OF A CONTINUING BUSINESS ENTERPRISE,
ESTABLISHES THE REQUISITE RELATIONSHIP OF DEPENDENCE.  MOREOVER,
PROCEDURES WERE ANNOUNCED IN PERMA VINYL WHICH PROVIDE THE NECESSARY
PROCEDURAL SAFEGUARDS.  THERE WILL BE NO ADJUDICATION OF LIABILITY
AGAINST A BONA FIDE SUCCESSOR "WITHOUT AFFORDING (IT) A FULL
OPPORTUNITY AT A HEARING, AFTER ADEQUATE NOTICE, TO PRESENT EVIDENCE ON
THE QUESTION OF WHETHER IT IS A SUCCESSOR WHICH IS RESPONSIBLE FOR
REMEDYING A PREDECESSOR'S UNFAIR LABOR PRACTICES.  THE SUCCESSOR (WILL)
ALSO BE ENTITLED, OF COURSE, TO BE HEARD AGAINST THE ENFORCEMENT OF ANY
ORDER ISSUED AGAINST IT."  164 N.L.R.B., AT 969. 

IN THIS CASE, ALL AMERICAN HAS NO COMPLAINT THAT IT WAS DENIED DUE
NOTICE AND A FAIR HEARING.  IT WAS MADE A PARTY TO THE SUPPLEMENTAL
BACK-PAY SPECIFICATION PROCEEDING, GIVEN NOTICE OF THE HEARING, AND
AFFORDED FULL OPPORTUNITY, WITH THE ASSISTANCE OF COUNSEL, TO CONTEST
THE QUESTION OF ITS SUCCESSORSHIP FOR PURPOSES OF THE ACT AND ITS
KNOWLEDGE OF THE PENDENCY OF THE UNFAIR LABOR PRACTICE LITIGATION AT
THE TIME OF PURCHASE. 

WE NOW TURN TO THE QUESTION WHETHER THE BOARD PROPERLY EXERCISED ITS
DISCRETION IN ISSUING THE ORDER AGAINST ALL AMERICAN.  THE BOARD'S
DECISIONAL PROCESS IN THE PERMA VINYL LINE OF CASES HAS INVOLVED
STRIKING A BALANCE BETWEEN THE CONFLICTING LEGITIMATE INTERESTS OF THE
BONA FIDE SUCCESSOR, THE PUBLIC, AND THE AFFECTED EMPLOYEE.  WHAT WE
SAID OF THE BOARD'S DECISIONAL PROCESS IN ANOTHER CONTEXT IS PERTINENT
HERE: 

"THE ULTIMATE PROBLEM IS THE BALANCING OF THE CONFLICTING LEGITIMATE
INTERESTS.  THE FUNCTION OF STRIKING THAT BALANCE TO EFFECTUATE
NATIONAL LABOR POLICY IS OFTEN A DIFFICULT AND DELICATE RESPONSIBILITY,
WHICH THE CONGRESS COMMITTED PRIMARILY TO THE NATIONAL LABOR RELATIONS
BOARD, SUBJECT TO LIMITED JUDICIAL REVIEW."  NLRB V. TEAMSTERS LOCAL
449, 353 U.S. 87, 96 (1957). 

THE BOARD'S PERMA VINYL PRINCIPLES INTRODUCED INTO THE BALANCING
PROCESS AN EMPHASIS UPON PROTECTION FOR THE VICTIMIZED EMPLOYEE: 

"ESPECIALLY IN NEED OF HELP, IT SEEMS TO US, ARE THE EMPLOYEE
VICTIMS OF UNFAIR LABOR PRACTICES WHO, BECAUSE OF THEIR UNLAWFUL
DISCHARGE, ARE NOW WITHOUT MEANINGFUL REMEDY WHEN TITLE TO THE
EMPLOYING BUSINESS OPERATION CHANGES HANDS."  164 N.L.R.B., AT 969. 

THE BOARD FOUND SUPPORT FOR THIS POLICY, AND WE THINK PROPERLY, IN
THE COURT'S OBSERVATION IN JOHN WILEY & SONS, INC. V. LIVINGSTON, 376
U.S. 543, 549 (1964): 

     "EMPLOYEES . . . ORDINARILY DO NOT TAKE PART IN NEGOTIATIONS

  LEADING TO A CHANGE IN CORPORATE OWNERSHIP.  THE NEGOTIATIONS

  WILL ORDINARILY NOT CONCERN THE WELL-BEING OF THE EMPLOYEES WHOSE

  ADVANTAGE OR DISADVANTAGE, POTENTIALLY GREAT, WILL INEVITABLY BE

  INCIDENTAL TO THE MAIN CONSIDERATIONS.  THE OBJECTIVES OF

  NATIONAL LABOR POLICY REFLECTED IN ESTABLISHED PRINCIPLES OF

  FEDERAL LAW, REQUIRE THAT THE RIGHTFUL PREROGATIVE OF OWNERS

  INDEPENDENTLY TO REARRANGE THEIR BUSINESSES AND EVEN ELIMINATE

  THEMSELVES AS EMPLOYERS BE BALANCED BY SOME PROTECTION TO THE

  EMPLOYEES FROM A SUDDEN CHANGE IN THE EMPLOYMENT RELATIONSHIP." 

IN WILEY A LABOR UNION SUED UNDER 301 OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, 61 STAT. 156, 29 U.S.C. 185, TO COMPEL A CORPORATE
EMPLOYER TO ARBITRATE UNDER A COLLECTIVE-BARGAINING AGREEMENT.  THE
AGREEMENT ORIGINALLY HAD BEEN ENTERED INTO WITH ANOTHER CORPORATION
WHICH HAD SUBSEQUENTLY MERGED WITH WILEY FOR GENUINE BUSINESS REASONS. 
WE HELD THAT THE DISAPPEARANCE OF THE CONTRACTING CORPORATION BY MERGER
DID NOT NECESSARILY TERMINATE THE RIGHTS OF EMPLOYEES GUARANTEED BY THE
AGREEMENT AND THAT THE SUCCESSOR EMPLOYER COULD BE COMPELLED TO
ARBITRATE, SO LONG AS THERE WAS A "SUBSTANTIAL CONTINUITY OF IDENTITY
IN THE BUSINESS ENTERPRISE," EVIDENCED THERE BY THE WHOLESALE TRANSFER
OF THE PREDECESSOR'S EMPLOYEES TO THE SUCCESSOR.  376 U.S., AT 551. 
/5/ 

LATER, IN NLRB V. BURNS INTERNATIONAL SECURITY SERVICES, INC., 406
U.S. 272 (1972), THE COURT EXTENDED THE WILEY PRINCIPLE TO A CASE WHERE
THE ORIGINAL EMPLOYER, A PLANT PROTECTION COMPANY, WAS DISPLACED BY A
DIFFERENT COMPANY.  THE NEW COMPANY HIRED A MAJORITY OF THE EMPLOYEES
OF THE OLD COMPANY.  THE COURT HELD THAT THE NEW COMPANY HAD BEEN
PROPERLY ORDERED TO BARGAIN WITH THE BARGAINING REPRESENTATIVE WHICH
HAD BEEN CERTIFIED TO THE OLD COMPANY, SINCE THE BARGAINING UNIT
REMAINED ESSENTIALLY UNCHANGED.  IT WAS ALSO HELD, HOWEVER, THAT THE
NEW EMPLOYER WAS NOT BOUND BY THE COLLECTIVE-BARGAINING AGREEMENT
AGREED TO BY THE UNION AND THE PREDECESSOR EMPLOYER, INASMUCH AS 8 (D)
OF THE ACT, AS WELL AS THE LEGISLATIVE HISTORY OF THE LABOR LAWS,
REFLECTED A POLICY AGAINST COMPELLING A PARTY TO AGREE TO SUBSTANTIVE
CONTRACTUAL OBLIGATIONS.  406 U.S., AT 281 - 284, 291.  SIMILARLY, THE
COURT REFUSED TO BIND THE UNION, SINCE IT MIGHT HAVE MADE BARGAINING
CONCESSIONS WITH THE PREVIOUS EMPLOYER WHICH IT WOULD NOT NECESSARILY
AGREE TO IN NEGOTIATIONS WITH THE SUCCESSOR.  ID., AT 288. 

WE IN NO WAY QUALIFY THE BURNS HOLDINGS IN CONCLUDING THAT THE
BOARD'S ORDER AGAINST ALL AMERICAN STRIKES AN EQUITABLE BALANCE.  /6/
WHEN A NEW EMPLOYER, SUCH AS ALL AMERICAN, HAS ACQUIRED SUBSTANTIAL
ASSETS OF ITS PREDECESSOR AND CONTINUED, WITHOUT INTERRUPTION OR
SUBSTANTIAL CHANGE, THE PREDECESSOR'S BUSINESS OPERATIONS, THOSE
EMPLOYEES WHO HAVE BEEN RETAINED WILL UNDERSTANDABLY VIEW THEIR JOB
SITUATIONS AS ESSENTIALLY UNALTERED.  UNDER THESE CIRCUMSTANCES, THE
EMPLOYEES MAY WELL PERCEIVE THE SUCESSOR'S FAILURE TO REMEDY THE
PREDECESSOR EMPLOYER'S UNFAIR LABOR PRACTICES ARISING OUT OF AN
UNLAWFUL DISCHARGE AS A CONTINUATION OF THE PREDECESSOR'S LABOR
POLICIES.  TO THE EXTENT THAT THE EMPLOYEES' LEGITIMATE EXPECTATION IS
THAT THE UNFAIR LABOR PRACTICES WILL BE REMEDIED, A SUCCESSOR'S FAILURE
TO DO SO MAY RESULT IN LABOR UNREST AS THE EMPLOYEES ENGAGE IN
COLLECTIVE ACTIVITY TO FORCE REMEDIAL ACTION.  SIMILARLY, IF THE
EMPLOYEES IDENTIFY THE NEW EMPLOYER'S LABOR POLICIES WITH THOSE OF THE
PREDECESSOR BUT DO NOT TAKE COLLECTIVE ACTION, THE SUCCESSOR MAY
BENEFIT FROM THE UNFAIR LABOR PRACTICES DUE TO A CONTINUING DETERRENT
EFFECT ON UNION ACTIVITIES.  MOREOVER, THE BOARD'S EXPERIENCE MAY
REASONABLY LEAD IT TO BELIEVE THAT EMPLOYERS INTENT ON SUPPRESSING
UNION ACTIVITY MAY SELECT FOR DISCHARGE THOSE EMPLOYEES MOST ACTIVELY
ENGAGED IN UNION AFFAIRS, SO THAT A FAILURE TO REINSTATE MAY RESULT IN
A LEADERSHIP VACUUM IN THE BARGAINING UNIT.  CF. PHELPS DODGE CORP. V.
NLRB, 313 U.S. 177, 193 (1941).  FURTHER, UNLIKE BURNS, WHERE AN
IMPORTANT LABOR POLICY OPPOSED SADDLING THE SUCCESSOR EMPLOYER WITH THE
OBLIGATIONS OF THE COLLECTIVE-BARGAINING AGREEMENT, THERE IS NO
UNDERLYING CONGRESSIONAL POLICY HERE MILITATING AGAINST THE IMPOSITION
OF LIABILITY. 

AVOIDANCE OF LABOR STRIFE, PREVENTION OF A DETERRENT EFFECT ON THE
EXERCISE OF RIGHTS GUARANTEED EMPLOYEES BY 7 OF THE ACT, 29 U.S.C. 157,
AND PROTECTION FOR THE VICTIMIZED EMPLOYEE--ALL IMPORTANT POLICIES
SUBSERVED BY THE NATIONAL LABOR RELATIONS ACT, SEE 29 U.S.C. 141--ARE
ACHIEVED AT A RELATIVELY MINIMAL COST TO THE BONA FIDE SUCCESSOR. 
SINCE THE SUCCESSOR MUST HAVE NOTICE BEFORE LIABILITY CAN BE IMPOSED,
"HIS POTENTIAL LIABILITY FOR REMEDYING THE UNFAIR LABOR PRACTICES IS A
MATTER WHICH CAN BE REFLECTED IN THE PRICE HE PAYS FOR THE BUSINESS, OR
HE MAY SECURE AN INDEMNITY CLAUSE IN THE SALES CONTRACT WHICH WILL
INDEMNIFY HIM FOR LIABILITY ARISING FROM THE SELLER'S UNFAIR LABOR
PRACTICES."  PERMA VINYL CORP., 164 N.L.R.B., AT 969.  IF THE
REINSTATED EMPLOYEE DOES NOT EFFECTIVELY PERFORM, HE MAY, OF COURSE, BE
DISCHARGED FOR CAUSE.  SEE 29 U.S.C. 160 (C).  /7/

        III 

GOLDEN STATE ATTACKED IN THE COURT OF APPEALS THE PROVISION OF THE
BOARD'S ORDER DIRECTING THAT IT AND ALL AMERICAN JOINTLY OR SEVERALLY
PAY BAKER A SPECIFIED SUM OF NET BACK PAY.  GOLDEN STATE CONTENDS THAT,
AT MOST, IT "SHOULD BE ORDERED TO PAY TO BAKER BACK PAY HE WOULD HAVE
EARNED AS A DRIVER-SALESMAN IN GOLDEN STATE'S EMPLOY FROM THE DATE OF
THIS WRONGFUL TERMINATION UNTIL THE DATE OF SALE OF THE BOTTLING
COMPANY BY GOLDEN STATE, JANUARY 31, 1968."  BRIEF FOR PETITIONERS 60. 
/8/  THE COURT OF APPEALS DECLINED TO CONSIDER THIS ARGUMENT BECAUSE
GOLDEN STATE HAD AGREED ORALLY AND IN THE CONTRACT OF SALE TO INDEMNIFY
ALL AMERICAN FOR ANY BACK PAY PAID BAKER BY ALL AMERICAN AND THEREFORE
WAS "LIABLE FOR SUCH WAGES BY VIRTUE OF ITS AGREEMENT, WHETHER OR NOT
IT WOULD ALSO BE LIABLE ABSENT THAT AGREEMENT."  467 F.2D, AT 166.  BUT
GOLDEN STATE'S CONTRACTUAL OBLIGATION MAY BE SUBJECT TO CONTRACTUAL
DEFENSES AND FOR THAT REASON MAY NOT IN FACT BE THE EQUIVALENT OF THE
LIABILITY IMPOSED UPON GOLDEN STATE BY THE ORDER.  WE SHALL THEREFORE
DECIDE GOLDEN STATE'S CHALLENGE TO THE VALIDITY OF THE IMPOSITION OF
JOINT AND SEVERAL LIABILITY UPON GOLDEN STATE.  WE FIND NO MERIT IN THE
CHALLENGE. 

THE BOARD JUSTIFIED SUCH PROVISIONS IN PERMA VINYL IN THESE WORDS:
"WITH RESPECT TO THE OFFENDING EMPLOYER HIMSELF, IT MUST BE OBVIOUS
THAT IT CANNOT BE IN THE PUBLIC INTEREST TO PERMIT THE VIOLATOR OF THE
ACT TO SHED ALL RESPONSIBILITY FOR REMEDYING HIS OWN UNFAIR LABOR
PRACTICES BY SIMPLY DISPOSING OF THE BUSINESS.  IF HE HAS UNLAWFULLY
DISCHARGED EMPLOYEES BEFORE TRANSFERRING OWNERSHIP TO ANOTHER, HE
SHOULD AT LEAST BE REQUIRED TO MAKE WHOLE THE DISCHARGEES FOR ANY LOSS
OF PAY SUFFERED BY REASON OF THE DISCHARGES UNTIL SUCH TIME AS THEY
SECURE SUBSTANTIALLY EQUIVALENT EMPLOYMENT WITH ANOTHER EMPLOYER."  164
N.L.R.B., AT 970.  IN ADDITION, JOINT AND SEVERAL LIABILITY WILL MORE
FULLY INSURE THAT THE EMPLOYEE IS FULLY RECOMPENSED BY PROTECTING HIM,
E.G., AGAINST THE INSOLVENCY OF THE SUCCESSOR.  THE POSSIBILITY THAT
THE SUCCESSOR WILL UNJUSTIFIABLY DELAY REINSTATEMENT TO THE
PREDECESSOR'S PREJUDICE CAN BE MET BY A PROTECTIVE PROVISION IN THE
CONTRACT OF SALE.  WE CANNOT SAY THAT THE BOARD HAS ERRED IN THUS
"STRIKING (THE) BALANCE TO EFFECTUATE NATIONAL LABOR POLICY . . . "
NLRB V. TEAMSTERS LOCAL 449, 353 U.S., AT 96.  /9/

  IV     WHEN BAKER WAS DISCHARGED ON AUGUST 16, 1963, HE WAS
GOLDEN STATE'S LEADING DRIVER-SALESMAN.  ON OCTOBER 1, 1964, GOLDEN
STATE BEGAN CONVERTING ITS TOP DRIVER-SALESMEN TO DISTRIBUTORS, OR
INDEPENDENT CONTRACTORS, WHO REALIZED NET PROFITS, AFTER THE DEDUCTION
OF THEIR OPERATING EXPENSES, FROM THE PURCHASE OF PRODUCTS FROM GOLDEN
STATE AND THE RESALE TO CUSTOMERS.  THE BOARD FOUND THAT BAKER WOULD
HAVE BECOME A DISTRIBUTOR ON OCTOBER 1, 1964, BUT FOR HIS DISCHARGE ON
AUGUST 16, 1963.  THE BOARD THEREFORE COMPUTED BAKER'S GROSS BACK PAY
SUBSEQUENT TO OCTOBER 1, 1964, ON THE BASIS OF WHAT HE WOULD HAVE
EARNED AS A DISTRIBUTOR AFTER THAT DATE. 

PETITIONERS ARGUE THAT THE CHANGE ON OCTOBER 1, 1964, FROM DRIVER
SALESMAN TO DISTRIBUTOR ENDED THEIR LIABILITY TO BAKER ON THAT DATE
BECAUSE DISTRIBUTORS ARE "INDEPENDENT CONTRACTORS" EXCLUDED FROM
COVERAGE OF THE ACT BY 29 U.S.C.152(3).  THE COURT OF APPEALS REJECTED
THAT CONTENTION, STATING: 

"HOWEVER, IT IS UNDISPUTED THAT WHEN BAKER WAS DISCRIMINATORILY
DISCHARGED HE WAS AN ORDINARY EMPLOYEE.  THE ACT'S REMEDIES ARE NOT
THWARTED BY THE FACT THAT AN EMPLOYEE WHO IS WITHIN THE ACT'S
PROTECTIONS WHEN THE DISCRIMINATION OCCURS WOULD HAVE BEEN PROMOTED OR
TRANSFERRED TO A POSITION NOT COVERED BY THE ACT IF HE HAD NOT BEEN
DISCRIMINATED AGAINST.  NLRB V. BELL AIRCRAFT CORP., 206 F.2D 235, 236
237 (2D CIR. 1953)."  467 F.2D, AT 166.  WE AGREE WITH THE COURT OF
APPEALS AND ADD ONLY THE OBSERVATION THAT ITS CONCLUSION IS BUTTRESSED
BY THE CONSIDERATION THAT AN ORDER REQUIRING REINSTATEMENT AND BACK PAY
IS AIMED AT "RESTORING THE ECONOMIC STATUS QUO THAT WOULD HAVE OBTAINED
BUT FOR THE COMPANY'S WRONGFUL REFUSAL TO REINSTATE . . . "  NLRB V.
J.H. RUTTER-REX MFG. CO., INC., 396 U.S. 258, 263 (1969)./10/  THE
BOARD TREATS NET PROFITS OF THE EMPLOYEE WHO GOES INTO BUSINESS ON HIS
OWN AS INTERIM EARNINGS FOR THE PURPOSE OF COMPUTING NET BACK PAY. 
MASTRO PLASTICS CORP., 136 N.L.R.B. 1342, 1350 (1962), ENFORCED IN
PART, NLRB V. MASTRO PLASTICS CORP., 354 F.2D 170 (CA2 1965).  IN THE
EFFORT TO RESTORE THE ECONOMIC STATUS QUO THAT WOULD HAVE OBTAINED BUT
FOR BAKER'S WRONGFUL DISCHARGE, IT WAS ALSO PROPER TO COMPUTE WHAT HE
WOULD HAVE EARNED AFTER OCTOBER 1, 1964, ON THE BASIS OF HIS NET
PROFITS AS A DISTRIBUTOR.  CF. NLRB V. RICE LAKE CREAMERY CO., 124 U.S.
APP. D.C. 355, 358, 365 F.2D 888, 891 (1966); NLRB V. MOONEY AIRCRAFT,
INC., 375 F.2D 402 (CA5 1967). 

AFFIRMED. 

/1/  ON JUNE 10, 1964, THE BOARD FOUND THAT GOLDEN STATE VIOLATED
8(A)(3) AND (1) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 452, AS
AMENDED, 29 U.S.C. 158 (A) (3) AND (1), BY DISCHARGING BAKER, ON AUGUST
16, 1963, BECAUSE OF UNION ACTIVITIES, AND ORDERED BAKER'S
REINSTATEMENT WITH BACK PAY.  147 N.L.R.B. 410.  ON DECEMBER 2, 1965,
THE COURT OF APPEALS FOR THE NINTH CIRCUIT ENFORCED THE BOARD'S ORDER
WITH RESPECT TO BAKER.  353 F.2D 667.  DUE TO A DELAY IN THE COURT OF
APPEALS'  DISPOSITION OF THE BOARD'S PETITION FOR REHEARING ON A
PORTION OF THE COURT'S DECISION UNRELATED TO BAKER, A FINAL DECREE WAS
NOT ENTERED UNTIL NOVEMBER 27, 1968, SEE 401 F.2D 454. 

/2/ PERMA VINYL STATES THE PRINCIPLES AND THEIR RATIONALE AS
FOLLOWS:  "TO FURTHER THE PUBLIC INTEREST INVOLVED IN EFFECTUATING THE
POLICIES OF THE ACT AND ACHIEVE THE 'OBJECTIVES OF NATIONAL LABOR
POLICY, REFLECTED IN ESTABLISHED PRINCIPLES OF FEDERAL LAW,' WE ARE
PERSUADED THAT ONE WHO ACQUIRES AND OPERATES A BUSINESS OF AN EMPLOYER
FOUND GUILTY OF UNFAIR LABOR PRACTICES IN BASICALLY UNCHANGED FORM
UNDER CIRCUMSTANCES WHICH CHARGE HIM WITH NOTICE OF UNFAIR LABOR
PRACTICE CHARGES AGAINST HIS PREDECESSOR SHOULD BE HELD RESPONSIBLE FOR
REMEDYING HIS PREDECESSOR'S UNLAWFUL CONDUCT. 

"IN IMPOSING THIS RESPONSIBILITY UPON A BONA FIDE PURCHASER, WE ARE
NOT UNMINDFUL OF THE FACT THAT HE WAS NOT A PARTY TO THE UNFAIR LABOR
PRACTICES AND CONTINUES TO OPERATE THE BUSINESS WITHOUT ANY CONNECTION
WITH HIS PREDECESSOR.  HOWEVER, IN BALANCING THE EQUITIES INVOLVED
THERE ARE OTHER SIGNIFICANT FACTORS WHICH MUST BE TAKEN INTO ACCOUNT. 
THUS, 'IT IS THE EMPLOYING INDUSTRY THAT IS SOUGHT TO BE REGULATED AND
BROUGHT WITHIN THE CORRECTIVE AND REMEDIAL PROVISIONS OF THE ACT IN THE
INTEREST OF INDUSTRIAL PEACE.'  WHEN A NEW EMPLOYER IS SUBSTITUTED IN
THE EMPLOYING INDUSTRY THERE HAS BEEN NO REAL CHANGE IN THE EMPLOYING
INDUSTRY INSOFAR AS THE VICTIMS OF PAST UNFAIR LABOR PRACTICES ARE
CONCERNED OR THE NEED FOR REMEDYING THOSE UNFAIR LABOR PRACTICES. 
APPROPRIATE STEPS MUST STILL BE TAKEN IF THE EFFECTS OF THE UNFAIR
LABOR PRACTICES ARE TO BE ERASED AND ALL EMPLOYEES REASSURED OF THEIR
STATUTORY RIGHTS.  AND IT IS THE SUCCESSOR WHO HAS TAKEN OVER CONTROL
OF THE BUSINESS WHO IS GENERALLY IN THE BEST POSITION TO REMEDY SUCH
UNFAIR LABOR PRACTICES MOST EFFECTIVELY.  THE IMPOSITION OF THIS
RESPONSIBILITY UPON EVEN THE BONA FIDE PURCHASER DOES NOT WORK AN
UNFAIR HARDSHIP UPON HIM.  WHEN HE SUBSTITUTED HIMSELF IN PLACE OF THE
PERPETRATOR OF THE UNFAIR LABOR PRACTICES, HE BECAME THE BENEFICIARY OF
THE UNREMEDIED UNFAIR LABOR PRACTICES.  ALSO, HIS POTENTIAL LIABILITY
FOR REMEDYING THE UNFAIR LABOR PRACTICES IS A MATTER WHICH CAN BE
REFLECTED IN THE PRICE HE PAYS FOR THE BUSINESS, OR HE MAY SECURE AN
INDEMNITY CLAUSE IN THE SALES CONTRACT WHICH WILL INDEMNIFY HIM FOR
LIABILITY ARISING FROM THE SELLER'S UNFAIR LABOR PRACTICES."  164
N.L.R.B. 968, 969 (FOOTNOTES OMITTED). 

/3/  SEE, E.G., INTERSTATE CIRCUIT, INC. V. UNITED STATES, 306 U.S.
208, 226 (1939); NLRB V. DORN'S TRANSP.  CO., INC., 405 F.2D 706, 713
(CA2 1969). 

/4/  A SHORT ANSWER TO PETITIONERS' ARGUMENT MIGHT APPEAR TO BE
THAT, BECAUSE THE BOARD'S SUPPLEMENTAL ORDER TO ALL AMERICAN REQUIRED
ONLY REINSTATEMENT AND BACK PAY, AND NOT THAT ALL AMERICAN CEASE AND
DESIST FROM FUTURE UNLAWFUL ACTIVITY, NO INJUNCTIVE RELIEF WAS ORDERED,
AND THEREFORE RULE 65(D) NEED NOT BE CONSIDERED.  BUT WE HAVE
PREVIOUSLY FOUND RULE 65 (D) APPLICABLE TO MANDATORY INJUNCTIONS AND
HAVE NOTED THAT THE COURTS OF APPEALS HAVE APPLIED IT "NOT ONLY TO
PROHIBITORY INJUNCTIONS BUT TO ENFORCEMENT ORDERS AND AFFIRMATIVE
DECREES AS WELL."  LOCAL 1291, ILA V. PHILADELPHIA MARINE TRADE ASSN.,
389 U.S. 64, 75 AND N.14 (1967); SEE GENERALLY DEVELOPMENTS IN THE LAW-
INJUNCTIONS, 78 HARV. L. REV. 994, 1061 - 1063 (1965). 

IN NOT REQUIRING THE BONA FIDE PURCHASER TO CEASE AND DESIST, THE
BOARD FOLLOWED PRIOR PRACTICE.  SEE THOMAS ENGINE CORP., 179 N.L.R.B.
1029 AND N.4 (1970), ENFORCED SUB NOM. UAW V. NLRB, 442 F.2D 1180 (CA9
1971).  THIS APPROACH SEEMS CONSISTENT WITH THE FACT THAT THE
SUCCESSOR'S OBLIGATIONS DO NOT ARISE OUT OF ITS OWN UNFAIR LABOR
PRACTICES.  THE BOARD'S PRACTICE AFTER ITS EARLIER DECISION IN
ALEXANDER MILBURN CO., 78 N.L.R.B. 747 (1947), HAD BEEN TO ORDER THE
BONA FIDE PURCHASER TO CEASE AND DESIST.  THIS MAY ACCOUNT FOR
DECISIONS OF THE COURTS OF APPEALS, E.G., NLRB V. BIRDSALL-STOCKDALE
MOTOR CO., 208 F.2D 234, 236 (CA10 1953), OPPOSING THE BOARD'S POSITION
IN ALEXANDER MILBURN, WHICH EVENTUALLY LED TO THE BOARD'S OVERRULING OF
THAT DECISION IN SYMNS GROCER CO., 109 N.L.R.B. 346 (1954).  SEE
DUROSS, PROTECTING EMPLOYEE REMEDIAL RIGHTS UNDER THE PERMA VINYL
DOCTRINE, 39 GEO. WASH. L. REV. 1063, 1089 (1971). 

/5/  WE RECOGNIZE THAT, UNLIKE THE SITUATION IN WILEY WHERE STATE
LAW PROVIDED SOME SUPPORT FOR HOLDING THE SUCCESSOR BY CONSOLIDATION
LIABLE, SEE 376 U.S., AT 547 - 548, THE GENERAL RULE OF CORPORATE
LIABILITY IS THAT, WHEN A CORPORATION SELLS ALL OF ITS ASSETS TO
ANOTHER, THE LATTER IS NOT RESPONSIBLE FOR THE SELLER'S DEBTS OR
LIABILITIES, EXCEPT WHERE (1) THE PURCHASER EXPRESSLY OR IMPLIEDLY
AGREES TO ASSUME THE OBLIGATIONS; (2) THE PURCHASER IS MERELY A
CONTINUATION OF THE SELLING CORPORATION; OR (3) THE TRANSACTION IS
ENTERED INTO TO ESCAPE LIABILITY.  SEE 15 W. FLETCHER, CYCLOPEDIA
CORPORATIONS 7122 - 7123 (1961 REV. ED.); KLOBERDANZ V. JOY MFG. CO.,
288 F.SUPP.  817 (COLO. 1968).  THE PERIMETERS OF THE LABOR-LAW
DOCTRINE OF SUCCESSORSHIP, HOWEVER, HAVE NOT BEEN SO NARROWLY
CONFINED.  SEE 15 W. FLETCHER, SUPRA, 7122, P.196 (SUPP. 1972);
SLICKER, A RECONSIDERATION OF THE DOCTRINE OF EMPLOYER SUCCESSORSHIP--A
STEP TOWARD A RATIONAL APPROACH, 57 MINN. L. REV. 1051, 1062 - 1063
(1973).  SUCCESSORSHIP HAS BEEN FOUND "WHERE THE NEW EMPLOYER PURCHASES
A PART OR ALL OF THE ASSETS OF THE PREDECESSOR EMPLOYER, NLRB V.
INTERSTATE 65 CORP., 453 F.2D 269 (CA6 1971); (AND) WHERE THE ENTIRE
BUSINESS IS PURCHASED BY THE NEW EMPLOYER, NLRB V. MCFARLAND, 306 F.2D
219 (CA10 1962) . . . " NLRB V. BURNS INTERNATIONAL SECURITY SERVICES,
INC., 406 U.S. 272, 306 (1972) (OPINION OF REHNQUIST, J.); SEE ID., AT
291 (OPINION OF THE COURT).  THE REFUSAL TO ADOPT A MODE OF ANALYSIS
REQUIRING THE BOARD TO DISTINGUISH AMONG MERGERS, CONSOLIDATIONS, AND
PURCHASES OF ASSETS IS ATTRIBUTABLE TO THE FACT THAT, SO LONG AS THERE
IS A CONTINUITY IN THE "EMPLOYING INDUSTRY," THE PUBLIC POLICIES
UNDERLYING THE DOCTRINE WILL BE SERVED BY ITS BROAD APPLICATION.  CF.
NLRB V. COLTEN, 105 F.2D 179, 183 (CA6 1939). 

/6/  A PURCHASING COMPANY CANNOT BE OBLIGATED TO CARRY OUT UNDER
10(C) EVERY OUTSTANDING AND UNSATISFIED ORDER OF THE BOARD.  FOR
EXAMPLE, BECAUSE THE PURCHASER IS NOT OBLIGATED BY THE ACT TO HIRE ANY
OF THE PREDECESSOR'S EMPLOYEES, SEE NLRB V. BURNS INTERNATIONAL
SECURITY SERVICES, INC., SUPRA, AT 280 N.5, THE PURCHASER, IF IT DOES
NOT HIRE ANY OR A MAJORITY OF THOSE EMPLOYEES, WILL NOT BE BOUND BY AN
OUTSTANDING ORDER TO BARGAIN ISSUED BY THE BOARD AGAINST THE
PREDECESSOR NOR BY ANY ORDER TIED TO THE CONTINUANCE OF THE BARGAINING
AGENT IN THE UNIT INVOLVED.  ID., AT 280 - 281. 

/7/  THE ONLY COURT OF APPEALS PANEL WHICH HAS CONSIDERED THE PERMA
VINYL DECISION, OTHER THAN THE FIFTH CIRCUIT IN ENFORCING THE BOARD'S
ORDER IN THAT CASE, UNITED STATES PIPE & FOUNDRY CO. V. NLRB, 398 F.2D
544, AND THE NINTH CIRCUIT IN THE DECISION UNDER REVIEW, 467 F.2D 164,
HAS EXPRESSED ITS APPROVAL.  UAW V. NLRB, 442 F.2D, AT 1183 (TUTTLE,
J.).  COMMENTATORS HAVE GENERALLY CONCURRED.  SEE DUROSS, SUPRA, N.4;
GOLDBERG, THE LABOR LAW OBLIGATIONS OF A SUCCESSOR EMPLOYER, 63 NW.U.L.
REV. 735 (1969); COMMENT, SUCCESSOR EMPLOYER'S OBLIGATION TO REMEDY
UNFAIR LABOR PRACTICES, 68 COL. L. REV. 1602 (1968); COMMENT, 42
N.Y.U.L. REV. 1202 (1967); COMMENT, 47 N.C.L. REV. 459 (1969); COMMENT,
41 TEMP.  L.Q. 156 (1967); COMMENT, 13 VILL.  L. REV. 232 (1967). 

/8/  ALTHOUGH THE ORIGINAL ORDER OF THE BOARD REQUIRED GOLDEN STATE
TO REINSTATE BAKER, 147 N.L.R.B., AT 412, THE BOARD CONCEDES THAT THE
SALE TO ALL AMERICAN TERMINATED GOLDEN STATE'S REINSTATEMENT
OBLIGATION.  SEE NLRB V. NEW MADRID MFG. CO., 215 F.2D 908 (CA8 1954). 

/9/  GOLDEN STATE'S RELIANCE ON TEXTILE WORKERS V. DARLINGTON MFG.
CO., 380 U.S. 263 (1965), IS MISPLACED.  IN DARLINGTON, IT WAS HELD
THAT AN EMPLOYER'S LIQUIDATION OF ITS ENTIRE BUSINESS, EVEN IF
MOTIVATED BY ANTIUNION ANIMUS, WOULD NOT BE AN UNFAIR LABOR PRACTICE. 
ID., AT 273 - 274.  BUT GOLDEN STATE COMMITTED AN UNFAIR LABOR PRACTICE
OVER FOUR YEARS PRIOR TO THE SALE OF THE BOTTLING BUSINESS TO ALL
AMERICAN, AND IN THAT CIRCUMSTANCE, THE SALE COULD NOT TERMINATE ITS
CONTINUING LIABILITY FOR BACK PAY. 

/10/  IT IS APPARENT THAT HAD GOLDEN STATE ALREADY REINSTATED BAKER
WITH BACK PAY BEFORE THE SALE OF ITS BUSINESS, AND THEREBY FULLY
COMPLIED WITH THE BOARD'S ORDER, ALL AMERICAN WOULD HAVE HAD NO MORE
OBLIGATION TO EMPLOY HIM IN THE CONTINUING BUSINESS THAN IT HAD TO
EMPLOY ANY OF GOLDEN STATE'S OTHER EMPLOYEES.  SEE N.6, SUPRA. 

MORTON B. JACKSON ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WAS GILFORD G. ROWLAND. 

NORTON J. COME ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK, ALLAN A. TUTTLE, PETER G. NASH, JOHN
S. IRVING, PATRICK HARDIN, AND WILLIAM H. DUROSS III. 
..END :




















FALK V. BRENNAN, 414 U.S. 190 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 72 - 844.  ARGUED OCTOBER 11, 1973--DECIDED DECEMBER 5,

1973; VACATED AND REMANDED. 


    RESPONDENT BROUGHT THIS ACTION TO ENJOIN PETITIONERS (HEREAFTER

  D & F), A FULLY INTEGRATED PARTNERSHIP MANAGING APARTMENT

  COMPLEXES FOR A FIXED PERCENTAGE OF THE GROSS RENTALS COLLECTED

  FROM EACH PROJECT FROM MINIMUM WAGE AND OTHER VIOLATIONS OF THE

  FAIR LABOR STANDARDS ACT.  THE DISTRICT COURT DISMISSED THE

  COMPLAINT, ADOPTING D & F'S CONTENTIONS THAT IT DOES NOT HAVE A

  $500,000 "ANNUAL GROSS VOLUME OF SALES MADE OR BUSINESS DONE"

  AND THUS DOES NOT COME WITHIN THE TERM "ENTERPRISE ENGAGED IN

  COMMERCE" AS DEFINED IN 3(S) OF THE ACT, AND THAT IT IS NOT AN

 EMPLOYER, WITHIN THE MEANING OF 3(D), OF THE MAINTENANCE

  PERSONNEL WHO ARE PAID FROM THE RENTALS RECEIVED AT THE APARTMENT

  COMPLEXES WHERE THEY WORK.  THE COURT OF APPEALS REVERSED,

  HOLDING THAT D & F MET THE STATUTORY DEFINITION OF "EMPLOYER" AND

  THAT IN DETERMINING WHETHER THE ENTERPRISE SATISFIES THE

  DOLLAR-VOLUME LIMITATION, IT IS THE GROSS RENTALS (WHICH EXCEED

  $500,000 ANNUALLY) THAT D & F COLLECTS AT ALL THE APARTMENT

  COMPLEXES THAT MUST BE CONSIDERED RATHER THAN THE GROSS

  COMMISSIONS THAT D & F RECEIVES FROM THE APARTMENT OWNERS. 

  HELD: 

     1.  D & F, WHOSE MANAGERIAL RESPONSIBILITIES AT EACH OF THE

BUILDINGS GIVE IT SUBSTANDIAL CONTROL OF THE TERMS AND CONDITIONS

  OF THE WORK OF EMPLOYEES AT THOSE BUILDINGS, IS AN "EMPLOYER"

  UNDER THE EXPANSIVE DEFINITION OF THE TERM IN 3(D) OF THE ACT P.

  195. 

     2.  D & F SELLS ONLY ITS PROFESSIONAL MANAGEMENT SERVICES, AND

  THE GROSS RENTALS IT COLLECTS AS PART OF THOSE SERVICES DO NOT

  REPRESENT SALES ATTRIBUTABLE TO ITS ENTERPRISE.  D & F'S

  COMMISSIONS ARE THEREFORE THE RELEVANT MEASURE OF ITS GROSS SALES

  MADE OR BUSINESS DONE FOR PURPOSES OF THE DOLLAR-VOLUME

  LIMITATION IN 3(S)(1).  THUS, THOUGH D & F IS AN "ENTERPRISE"

  UNDER 3(R), BRENNAN V. ARNHEIM & NEELY, INC., 410 U.S. 512, THE

  ACT DOES NOT APPLY TO D & F AS ITS COMMISSIONS ARE BELOW THE

  3(S)(1) LIMITATION.  PP. 195 - 201. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BLACKMUN, POWELL AND REHNQUIST, JJ., JOINED.  BRENNAN, J.,
FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, IN WHICH
DOUGLAS, WHITE, AND MARSHALL, JJ., JOINED, POST, P. 202. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE SECRETARY OF LABOR INITIATED THIS ACTION AGAINST THE PETITIONERS,
PARTNERS IN A REAL ESTATE MANAGEMENT COMPANY, FOR AN INJUNCTION AGAINST
FUTURE VIOLATIONS OF VARIOUS PROVISIONS OF THE FAIR LABOR STANDARDS ACT
OF 1938, 52 STAT. 1060, AS AMENDED, 29 U.S.C. 201 ET SEQ., AND FOR BACK
WAGES ALLEGEDLY DUE TO EMPLOYEES AFFECTED BY PAST VIOLATIONS OF THE
ACT.  /1/  THE PETITIONERS'  DEFENSE WAS THAT THEY ARE NOT "EMPLOYERS"
/2/  OF THE EMPLOYEES INVOLVED, AND THAT THEIR BUSINESS IS NOT A SINGLE
"ENTERPRISE" THAT IS SUBJECT TO THE ACT'S REQUIREMENTS.  THIS LATTER
CONTENTION BROUGHT TOGETHER TWO SEPARATE ARGUMENTS.  FIRST, THE
PETITIONERS CONTENDED THAT THEIR COMBINED ACTIVITIES DO NOT CONSTITUTE
AN "ENTERPRISE," AS THAT TERM IS DEFINED IN 3(R), 29 U.S.C. 203(R). 
SECOND, THE PETITIONERS ARGUED, EVEN IF THEIR BUSINESS ACTIVITIES DO
AMOUNT TO AN "ENTERPRISE," THEY ARE NOT AN "(ENTERPRISE ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE," AS THAT TERM IS
DEFINED IN 3(S), 29 U.S.C. 203(S), BECAUSE THEY DO NOT HAVE AN "ANNUAL
GROSS VOLUME OF SALES MADE OR BUSINESS DONE" OF $500,000.  /3/ 

UNDER THE PARTNERSHIP NAME OF DRUCKER & FALK (D & F), THE
PETITIONERS RENDER MANAGEMENT SERVICES FOR THE OWNERS OF A NUMBER OF
APARTMENT COMPLEXES IN THE STATE OF VIRGINIA.  UNDER ITS CONTRACTS WITH
THE APARTMENT OWNERS, D & F AGREES TO PERFORM, ON BEHALF OF EACH OWNER
AND UNDER HIS NOMINAL SUPERVISION, VIRTUALLY ALL MANAGEMENT FUNCTIONS
THAT ARE ORDINARILY REQUIRED FOR THE PROPER FUNCTIONING OF AN APARTMENT
COMPLEX.  /4/  THESE CONTRACTS ARE FOR A STATED TERM OF NOT LESS THAN
ONE YEAR.  EACH PARTY CAN TERMINATE THE ARRANGEMENT BY GIVING THE OTHER
PARTY 30 DAYS' NOTICE OF HIS INTENT TO DO SO.  NEITHER D & F NOR ANY OF
ITS PARTNERS HOLD ANY PROPERTY INTEREST IN THE BUILDINGS THAT D & F
MANAGES.  D & F RECEIVES AS COMPENSATION A FIXED PERCENTAGE OF THE
GROSS RENTALS COLLECTED FROM EACH PROJECT.  /5/ 

THE RENTALS COLLECTED BY D & F ARE DEPOSITED IN LOCAL BANK
ACCOUNTS.  /6/  FROM THESE ACCOUNTS IT PAYS ALL EXPENSES INCURRED IN
OPERATING AND MAINTAINING THE BUILDINGS.  AFTER DEDUCTING ITS
COMPENSATION, AS WELL AS ANY OTHER APPLICABLE EXPENSES, D & F TRANSMITS
PAYMENTS TO THE VARIOUS OWNERS ON A PERIODIC BASIS.  IF DISBURSEMENTS
FOR ANY APARTMENT COMPLEX EXCEED ITS GROSS RENTAL RECEIPTS, THE OWNER
IS REQUIRED UNDER THE CONTRACT TO REIMBURSE D & F. 

THE SUBJECT OF THE SECRETARY'S COMPLAINT WAS THE WAGES AND HOURS OF
THE MAINTENANCE PERSONNEL WHO WORK AT EACH OF THE APARTMENT COMPLEXES,
THE CONTENTION BEING THAT D & F IS IN VIOLATION OF THE MINIMUM WAGE,
OVERTIME, AND RECORDKEEPING PROVISIONS OF THE ACT WITH RESPECT TO THESE
MAINTENANCE WORKERS.  THESE EMPLOYEES WORK UNDER THE SUPERVISION OF D &
F AND ARE PAID FROM THE RENTALS RECEIVED AT THE APARTMENT COMPLEXES
WHERE THEY ARE EMPLOYED.  THEY ARE CONSIDERED IN THE CONTRACTS BETWEEN
THE OWNERS AND D & F AS "EMPLOYEES OF THE PROJECT OWNERS." 

IN THE DISTRICT COURT, D & F CONTENDED THAT ITS MANAGEMENT
ACTIVITIES AT THE SEVERAL APARTMENT COMPLEXES DO NOT CONSTITUTE A
SINGLE "ENTERPRISE," AS THAT TERM IS DEFINED IN 3(R) OF THE ACT, 29
U.S.C. 203(R); THAT, EVEN IF ITS BUSINESS IS A SINGLE "ENTERPRISE," IT
DOES NOT HAVE THE $500,000 "ANNUAL GROSS VOLUME OF SALES MADE OR
BUSINESS DONE" REQUIRED BY 3(S)(1), 29 U.S.C. 203(S) (1), FOR COVERAGE
BY THE ACT; AND THAT IT IS NOT AN "EMPLOYER" OF THESE MAINTENANCE
WORKERS, AS THAT TERM IS DEFINED IN 3(D), 29 U.S.C. 203(D).  THE
DISTRICT COURT AGREED WITH ALL THREE OF THESE CONTENTIONS AND DISMISSED
THE COMPLAINT.  THE COURT OF APPEALS REVERSED.  IT HELD THAT THE
MANAGEMENT ACTIVITIES PERFORMED BY D & F CONSTITUTE A SINGLE
"ENTERPRISE" FOR COVERAGE PURPOSES AND THAT D & F MEETS THE STATUTORY
DEFINITION OF "EMPLOYER"  WITH RESPECT TO THE MAINTENANCE WORKERS.  THE
APPELLATE COURT ALSO CONCLUDED THAT, IN DETERMINING WHETHER THE
ENTERPRISE SATISFIES THE DOLLAR-VOLUME LIMITATION, IT IS THE GROSS
RENTALS THAT D & F COLLECTS AT ALL THE APARTMENT COMPLEXES THAT MUST BE
CONSIDERED, RATHER THAN, AS THE DISTRICT COURT HAD HELD, THE GROSS
COMMISSIONS THAT D & F RECEIVES FROM THE APARTMENT OWNERS.  SINCE THERE
IS NO QUESTION THAT THESE GROSS RENTALS EXCEED $500,000 ANNUALLY, THE
COURT HELD THAT D & F IS SUBJECT TO THE ACT AND IN VIOLATION THEREOF
WITH RESPECT TO THE MAINTENANCE WORKERS. 

WE GRANTED CERTIORARI TO REVIEW THIS JUDGMENT OF THE COURT OF
APPEALS.  /7/  TWO DAYS LATER, WE HELD, IN BRENNAN V. ARNHEIM & NEELY,
INC., 410 U.S. 512 (1973), THAT A FULLY INTEGRATED REAL ESTATE
MANAGEMENT COMPANY THAT DIRECTS MANAGEMENT OPERATIONS AT SEVERAL
SEPARATELY OWNED BUILDINGS WAS A SINGLE "ENTERPRISE" FOR PURPOSES OF
THE ACT, THUS CONFIRMING THE HOLDING OF THE COURT OF APPEALS ON THAT
ISSUE IN THE PRESENT CASE.  BUT OUR DECISION IN ARNHEIM & NEELY DID NOT
REACH THE OTHER TWO STATUTORY QUESTIONS RAISED BY D & F. WE ACCORDINGLY
LIMITED THE GRANT OF CERTIORARI TO QUESTIONS 2 AND 3 PRESENTED BY THE
PETITION: 

     "(2) UNDER THE FAIR LABOR STANDARDS ACT TO BE COVERED AN

ENTERPRISE MUST HAVE AN 'ANNUAL GROSS VOLUME OF SALES MADE OR

  BUSINESS DONE' OF $500,000.  IS THIS FIGURE TO BE MEASURED BY THE

  GROSS RENTALS COLLECTED BY THE AGENT OR BY THAT AGENT'S GROSS

  COMMISSIONS? 

     "(3) ARE MAINTENANCE WORKERS EMPLOYED AT THE BUILDINGS MANAGED

  BY PETITIONERS EMPLOYEES OF THE APARTMENT OWNER OR OF THE

  PETITIONERS?"  410 U.S. 954. 

        I 

AS TO QUESTION 3, THE "EMPLOYEES" ISSUE, IT IS CLEAR THAT THE
MAINTENANCE WORKERS ARE EMPLOYEES OF THE BUILDING OWNERS.  BUT WE THINK
THAT THE COURT OF APPEALS WAS UNQUESTIONABLY CORRECT IN HOLDING THAT D
& F IS ALSO AN "EMPLOYER"  OF THE MAINTENANCE WORKERS UNDER 3(D) OF THE
ACT, WHICH DEFINES "EMPLOYER"  AS "ANY PERSON ACTING DIRECTLY OR
INDIRECTLY IN THE INTEREST OF AN EMPLOYER IN RELATION TO AN EMPLOYEE." 
29 U.S.C. 203(D).  SECTION 3(E) DEFINES "EMPLOYEE" TO INCLUDE "ANY
INDIVIDUAL EMPLOYED BY AN EMPLOYER."  29 U.S.C. 203 (E).  IN VIEW OF
THE EXPANSIVENESS OF THE ACT'S DEFINITION OF "EMPLOYER" AND THE EXTENT
OF D & F'S MANAGERIAL RESPONSIBILITIES AT EACH OF THE BUILDINGS, WHICH
GAVE IT SUBSTANTIAL CONTROL OF THE TERMS AND CONDITIONS OF THE WORK OF
THESE EMPLOYEES, WE HOLD THAT D & F IS, UNDER THE STATUTORY DEFINITION,
AN "EMPLOYER" OF THE MAINTENANCE WORKERS.  WE TURN, THEREFORE, TO THE
OTHER QUESTION EMBRACED IN THE GRANT OF CERTIORARI. 

  II 

IN BRENNAN V. ARNHEIM & NEELY INC., SUPRA, WE HELD THAT THE
INTEGRATED OPERATIONS OF A REAL ESTATE MANAGEMENT COMPANY SATISFIED THE
DEFINITION OF "ENTERPRISE" UNDER 3(R) OF THE ACT.  THIS HOLDING WAS
BASED UPON THE CONCLUSION THAT THE MANAGEMENT ACTIVITIES MET THE THREE
STATUTORY TESTS OF AN "ENTERPRISE":  RELATED ACTIVITIES, UNIFIED
OPERATION OR COMMON CONTROL, AND COMMON BUSINESS PURPOSE.  IT IS
IMPORTANT TO UNDERSTAND, HOWEVER, THAT THE "ENTERPRISE" THE COURT FOUND
IN ARNHEIM & NEELY CONSISTED OF THE SALE OF MANAGEMENT SERVICES BY THE
RESPONDENT.  THE COURT DID NOT HOLD THAT THE SEPARATE PROPERTY
INTERESTS OF EACH APARTMENT OWNER WERE TO BE CONSIDERED PART OF THE
MANAGEMENT ENTERPRISE OF ARNHEIM & NEELY.  INDEED, 3(R) AND THE
LEGISLATIVE HISTORY OF THE 1961 "ENTERPRISE AMENDMENTS" TO THE ACT
STRONGLY SUGGEST THAT THE USE OF COMMON AGENTS BY INDEPENDENT ENTITIES
IS NOT SUFFICIENT TO CONVERT TO A SINGLE "ENTERPRISE" WHAT OTHERWISE
ARE INDEPENDENT BUSINESSES.  /8/  THUS, D & F'S ENTERPRISE IN THE
PRESENT CASE, AS IN ARNHEIM & NEELY, CONSISTS OF AND IS LIMITED TO ITS
COMBINED MANAGEMENT ACTIVITIES AT THE VARIOUS APARTMENT COMPLEXES. 

THE ACT IMPOSES ITS REQUIREMENTS, NOT ON EVERY "ENTERPRISE," BUT
ONLY ON AN "ENTERPRISE ENGAGED IN COMMERCE OR IN THE PRODUCTION OF
GOODS FOR COMMERCE."  /9/  ONE OF THE STATUTORY ELEMENTS OF THE LATTER
TERM IS THE DOLLAR-VOLUME LIMITATION, WHICH IN THIS CASE IS $500,000
ANNUALLY.  /10/  THE BONE OF CONTENTION BETWEEN THE SECRETARY AND D & F
IS WHETHER THIS DOLLAR-VOLUME LIMITATION IS TO BE MEASURED BY THE
ANNUAL GROSS RENTALS COLLECTED BY D & F AS AGENT OF THE APARTMENT
OWNERS AS COMPENSATION FOR ITS MANAGEMENT SERVICES.  SECTION 3(S)(1),
WHICH PRESCRIBES THE DOLLAR-VOLUME LIMITATION, SPEAKS OF AN "ENTERPRISE
WHOSE ANNUAL GROSS VOLUME OF SALES MADE OR BUSINESS DONE IS NOT LESS
THAN $500,000."  29 U.S.C. 203(S)(1).  (EMPHASIS ADDED.)  THIS
STATUTORY LANGUAGE REQUIRES THAT, AFTER DETERMINING WHAT THE RELEVANT
ENTERPRISE IS, WE TURN OUR ATTENTION TO WHAT THAT ENTERPRISE SELLS OR
TO WHAT BUSINESS IT DOES. 

ANY DOUBT ABOUT WHETHER THE RENTAL OF SPACE IS A "SALE" FOR PURPOSES
OF THE ACT WAS REMOVED WHEN CONGRESS AMENDED 3(S) IN 1966 TO PROVIDE
THAT THE DOLLAR-VOLUME LIMITATION WOULD HENCEFORTH BE MEASURED BY
"ANNUAL GROSS VOLUME OF SALES MADE OR BUSINESS DONE," 80 STAT. 831
(EMPHASIS ADDED).  THE SENATE REPORT ON THE 1966 AMENDMENTS MAKES CLEAR
THAT THE ADDED LANGUAGE WAS INTENDED TO DISPEL ANY UNCERTAINTY THAT
REVENUE DERIVED FROM SERVICES, RENTALS, OR LOANS, EVEN THOUGH PERHAPS
NOT LITERALLY "SALES," WAS NEVERTHELESS TO BE CONSIDERED IN MEASURING
THE DOLLAR-VOLUME LIMITATION OF 3(S).  THE REPORT INDICATES THAT THE
AMENDMENT WAS INTENDED TO SIGNIFY LEGISLATIVE APPROVAL OF THE RESULT IN
WIRTZ V. SAVANNAH BANK & TRUST CO., 362 F.2D 857, WHICH SO INTERPRETED
3(S) AS IT READ BEFORE THE ADDITION OF THE "BUSINESS DONE" LANGUAGE. 
AS THE SENATE REPORT EXPLAINED: 

 THE ANNUAL GROSS VOLUME OF SALES MADE OR BUSINESS DONE BY AN

  ENTERPRISE WITHIN THE MEANING OF SECTION 3(S), WILL THUS CONTINUE

  TO INCLUDE BOTH THE GROSS DOLLAR VOLUME OF THE SALES . . . WHICH

  IT MAKES, AS MEASURED BY THE PRICE PAID BY THE PURCHASER FOR THE

  PROPERTY OR SERVICES SOLD TO HIM . . . , AND THE GROSS DOLLAR

  VOLUME OF ANY OTHER BUSINESS ACTIVITY IN WHICH THE ENTERPRISE

  ENGAGES WHICH CAN BE SIMILARLY MEASURED ON A DOLLAR BASIS.  THIS

  WOULD INCLUDE, FOR EXAMPLE, SUCH ACTIVITY BY AN ENTERPRISE AS

MAKING LOANS OR RENTING OR LEASING PROPERTY OF ANY KIND."  S.

  REP. NO. 1487, 89TH CONG., 2D SESS., 7 - 8. 

BUT A DETERMINATION THAT RENTALS ARE "SALES MADE OR BUSINESS DONE"
WITHIN THE MEANING OF THE ACT DOES NOT BEGIN TO DISPOSE OF THE ISSUE
BEFORE US.  THE QUESTION REMAINS, UNDER 3(S)(1), WHAT ENTERPRISE MADE
THE SALES OR DID THE BUSINESS. 

THE SECRETARY CONTENDS THAT THE "SALES MADE OR BUSINESS DONE" BY D &
F INCLUDES THE GROSS RENTAL INCOME OF APARTMENTS IN THE BUILDINGS THAT
IT MANAGES.  HE ARGUES THAT THE FACT THAT D & F DOES NOT OWN THE
BUILDINGS SHOULD NOT PRECLUDE ATTRIBUTION OF THE RENTALS TO IT.  D & F
ARGUES THAT IT SELLS ONLY MANAGERIAL SERVICES AND THUS THAT THE RENTALS
IT COLLECTS ON BEHALF OF THE OWNERS ARE NOT "SALES MADE OR BUSINESS
DONE" BY ITS ENTERPRISE.  IT CONTENDS, THEREFORE, THAT ITS GROSS SALES
SHOULD BE MEASURED, NOT BY THE RENTALS IT COLLECTS FROM THE TENANTS,
BUT RATHER BY THE MANAGEMENT FEES THAT THE OWNERS PAY IT AS
COMPENSATION FOR ITS SERVICES--I.E., ITS GROSS COMMISSIONS. 

THE LINE BETWEEN A SELLER OF A PRODUCT AND A SELLER OF A SERVICE IS
NOT ALWAYS READILY DISCERNIBLE, ESPECIALLY WHEN ONE OF THE SERVICES
RELATES TO THE SALE OF A PRODUCT OR, WHAT AMOUNTS TO THE SAME THING FOR
PURPOSES OF THE ACT, THE RENTAL OF SPACE.  AS AN ABSTRACT PROPOSITION,
THE SECRETARY IS UNDOUBTEDLY CORRECT IN HIS POSITION THAT OWNERSHIP IS
NOT NECESSARILY DETERMINATIVE IN ATTRIBUTING "SALES MADE OR BUSINESS
DONE" FOR PURPOSES OF THE STATUTE.  FOR EXAMPLE, A CONSIGNMENT SELLER'S
GROSS SALES MIGHT PROPERLY BE MEASURED BY HIS GROSS RECEIPTS FROM SALES
OF THE PRODUCT, EVEN THOUGH HE DID NOT ACTUALLY HOLD TITLE TO THE
PRODUCT THAT HE SOLD.  REALISTICALLY, SUCH A SELLER IS IN THE BUSINESS
OF SELLING THE PRODUCT THAT IS CONSIGNED TO HIM, AND HE IS FUNCTIONALLY
IN A POSITION NO DIFFERENT FROM THAT OF A SELLER WHO HAS PURCHASED THE
PRODUCT BEFORE RESALE.  THE ONLY PRACTICAL DIFFERENCE MAY BE THAT THE
"COST OF GOODS SOLD" ELEMENT OF THE PROFIT EQUATION IS EXPENDED BEFORE
RESALE IN THE ONE CASE AND AFTER RESALE IN THE OTHER. 

IN THE PRESENT CASE, HOWEVER, WE ARE CONVINCED THAT THE ENTERPRISE
OF D & F IS LIMITED TO THE SALE OF ITS PROFESSIONAL MANAGEMENT
SERVICES, AND, ACCORDINGLY, THAT THE COMMISSIONS IT RECEIVES ARE THE
RELEVANT MEASURE OF ITS GROSS SALES MADE OR BUSINESS DONE FOR PURPOSES
OF THE DOLLAR-VOLUME LIMITATION IN 3(S) (1).  D & F COLLECTS A NUMBER
OF RENTALS ON BEHALF OF THE PROPERTY OWNERS.  IN NEARLY EVERY CASE,
THESE RENTALS ARE PAID PURSUANT TO LEASE AGREEMENTS OF SIGNIFICANT
DURATION.  SOME MAY PREDATE D & F'S MANAGEMENT OF THE PREMISES, AND D &
F MAY THUS HAVE HAD ABSOLUTELY NOTHING TO DO WITH THE "SALES"
UNDERLYING THE PERIODIC RENTALS IT COLLECTS FOR THE OWNER.  /11/  WHEN
A LEASE DOES EXPIRE AND IS NOT RENEWED BY THE TENANT, D & F UNDERTAKES
TO FIND A NEW TENANT FOR THE OWNER AND SERVES AS AGENT FOR THE OWNER IN
THE NEGOTIATION AND EXECUTION OF A NEW LEASE.  WITH RESPECT TO SUCH A
LEASE, A COLORABLE ARGUMENT CAN BE MADE FOR ATTRIBUTION OF THE RENTALS
TO D & F, SINCE ITS NEGOTIATION OF A NEW LEASE INCREASES, OR AT LEAST
MAINTAINS, THE VOLUME OF RENTS COLLECTED AND THUS ALSO ITS PERCENTAGE
COMPENSATION.  BUT SUCH AN ARGUMENT DOES NOT WITHSTAND ANY BUT THE MOST
SUPERFICIAL ANALYSIS.     IN THE TYPICAL COMMODITY SALE THE SELLER'S
REMUNERATION IS A FUNCTION OF THE GROSS MARGIN BETWEEN THE COST OF THE
PRODUCT TO HIM AND THE RESALE PRICE.  AT FIRST BLUSH, THE DETERMINATION
OF D & F'S COMPENSATION AS A PERCENTAGE OF THE GROSS RENTALS SEEMS
SOMEWHAT AKIN TO THE MARGIN OF THE TYPICAL SELLER.  UPON REFLECTION,
HOWEVER, A CRITICAL DIFFERENCE APPEARS:  WHEN A LEASE IS NEGOTIATED BY
D & F, ITS REMUNERATION IS CALCULATED, NOT FROM THE PROCEEDS DERIVED
FROM THAT LEASE, BUT ONLY FROM THE RENTALS COLLECTED DURING ITS
MANAGERIAL TENURE, DURING WHICH PERIOD IT RENDERS SIGNIFICANT AND
SUBSTANTIAL MANAGEMENT SERVICES BEYOND ITS EARLIER SERVICE IN
NEGOTIATING THE LEASE.  IT IS CLEAR, THEREFORE, THAT THE BUSINESS OF
THE D & F ENTERPRISE IS NOT THE SALE OF A PRODUCT (THE RENTAL OF
REALTY) BUT A SALE OF PROFESSIONAL MANAGEMENT SERVICES.  THIS
CONCLUSION FOLLOWS LOGICALLY FROM OUR HOLDING IN ARNHEIM & NEELY THAT
THE RELEVANT ENTERPRISE FOR PURPOSES OF DECIDING WHETHER A REAL ESTATE
MANAGEMENT COMPANY IS COVERED BY THE ACT, CONSISTS OF ITS "AGGREGATE
MANAGEMENT ACTIVITIES" AT THE VARIOUS BUILDINGS THAT IT SUPERVISES. 
410 U.S., AT 519.  IN THIS REGARD, THE COMMISSIONS RECEIVED BY D & F
DIFFER EVEN FROM THE COMPENSATION RECEIVED BY THE TYPICAL BROKER OF
REALTY OR STOCK, WHOSE PRIMARY UNDERTAKING IS TO NEGOTIATE A SALE OF
THE PRINCIPAL'S PROPERTY AND WHOSE COMPENSATION IS CALCULATED ON THE
PROCEEDS OF THAT SALE. 

ON THESE FACTS, WE THINK THE CONCLUSION IS INESCAPABLE THAT D & F
VENDS ONLY ITS PROFESSIONAL MANAGEMENT SERVICES, AND THAT THE GROSS
RENTALS IT COLLECTS AS PART OF THESE SERVICES DO NOT REPRESENT SALES
ATTRIBUTABLE TO ITS ENTERPRISE.  IT FOLLOWS THAT THE CORRECT MEASURE OF
THE "GROSS VOLUME OF SALES MADE OR BUSINESS DONE" BY D & F IS THE GROSS
COMMISSIONS IT RECEIVES FROM THE APARTMENT OWNERS AS COMPENSATION FOR
THE MANAGEMENT SERVICES IT RENDERS.  /12/  SINCE THESE COMMISSIONS DID
NOT REACH $500,000 ANNUALLY DURING THE PERIOD INVOLVED IN THIS
LITIGATION, IT FOLLOWS THAT D & F WAS NOT AN "(ENTERPRISE ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE," WITHIN THE
MEANING OF THE ACT. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.  /13/

              IT IS SO ORDERED. 

/1/  THE COMPLAINT ALLEGED VIOLATIONS OF THE MINIMUM WAGE (29 U.S.C
206(B), OVERTIME (29 U.S.C. 207(A)(2), AND RECORDKEEPING (29 U.S.C
211(C) PROVISIONS OF THE ACT. 

/2/  SECTION 3(D), 29 U.S.C. 203(D), STATES THAT AN "'EMPLOYER'
INCLUDES ANY PERSON ACTING DIRECTLY OR INDIRECTLY IN THE INTEREST OF AN
EMPLOYER IN RELATION TO AN EMPLOYEE." 

/3/  THE DOLLAR-VOLUME LIMITATION WAS $500,000 AT ALL TIMES RELEVANT
TO THIS ACTION.  29 U.S.C 203(S)(1).  ON FEBRUARY 1, 1969, THE DOLLAR
VOLUME LIMITATION WAS REDUCED TO $250,000. 

/4/  D & F PERFORMS ALL THE FUNCTIONS REQUIRED FOR LEASING,
MAINTAINING AND OPERATING THE APARTMENT BUILDINGS.  THESE INCLUDE
ADVERTISING THE AVAILABILITY OF APARTMENTS FOR RENT; SIGNING, RENEWING,
AND CANCELING LEASES; COLLECTING RENTS; INSTITUTING, PROSECUTING, AND
SETTLING ALL LEGAL PROCEEDINGS FOR EVICTION, POSSESSION OF THE
PREMISES, AND UNPAID RENT; MAKING NECESSARY REPAIRS AND ALTERATIONS;
NEGOTIATING CONTRACTS FOR ESSENTIAL UTILITIES AND OTHER SERVICES;
PURCHASING SUPPLIES; PAYING BILLS; PREPARING OPERATING BUDGETS FOR THE
PROPERTY OWNERS' REVIEW AND APPROVAL; SUBMITTING PERIODIC REPORTS TO
THE OWNERS; AND HIRING AND SUPERVISING ALL EMPLOYEES REQUIRED FOR THE
OPERATION AND MAINTENANCE OF THE BUILDINGS AND GROUNDS. 

/5/  THE COMMISSION THAT D & F RECEIVES VARIES BETWEEN 4% AND 6%,
DEPENDING ON THE PARTICULAR ARRANGEMENTS WITH THE BUILDING OWNER. 

/6/  THE RENTS FOR ALL THE BUILDINGS MANAGED BY D & F TOTALED OVER
$7,700,000 IN 1966 AND OVER $8,600,000 IN 1968. 

/7/  BOTH THE DISTRICT COURT AND THE COURT OF APPEALS HAD THIS CASE
BEFORE THEM TWICE.  INITIALLY, THE DISTRICT COURT DISMISSED THE
COMPLAINT.  THE COURT OF APPEALS REVERSED AND REMANDED FOR FURTHER
PROCEEDINGS.  SHULTZ V. FALK, 439 F.2D 340.  THE PETITIONERS SOUGHT
CERTIORARI, AND WE DENIED THE WRIT.  FALK V. HODGSON, 404 U.S. 827
(1971).  ON REMAND TO THE DISTRICT COURT, THE PETITIONERS RESISTED THE
IMPOSITION OF JUDGMENT AND PARTICULARLY THE AWARDING OF PREJUDGMENT
INTEREST.  THE DISTRICT COURT RENDERED JUDGMENT AGAINST THE PETITIONERS
AND AWARDED PREJUDGMENT INTEREST.  THE COURT OF APPEALS AFFIRMED, AND
THE PETITIONERS AGAIN SOUGHT CERTIORARI. 

/8/  SECTION 3(R), 29 U.S.C 203(R) PROVIDES, IN PERTINENT PART: 

"(A) RETAIL OR SERVICE ESTABLISHMENT WHICH IS UNDER INDEPENDENT
OWNERSHIP SHALL NOT BE DEEMED TO BE SO OPERATED OR CONTROLLED AS TO BE
OTHER THAN A SEPARATE AND DISTINCT ENTERPRISE BY REASON OF ANY
ARRANGEMENT, WHICH INCLUDES, BUT IS NOT NECESSARILY LIMITED TO AN
AGREEMENT, (1) THAT IT WILL SELL, OR SELL ONLY, CERTAIN GOODS SPECIFIED
BY A PARTICULAR MANUFACTURER, DISTRIBUTOR, OR ADVERTISER, OR (2) THAT
IT WILL JOIN WITH OTHER SUCH ESTABLISHMENTS IN THE SAME INDUSTRY FOR
THE PURPOSE OF COLLECTIVE PURCHASING, OR (3) THAT IT WILL HAVE THE
EXCLUSIVE RIGHT TO SELL THE GOODS OR USE THE BRAND NAME OF A
MANUFACTURER, DISTRIBUTOR, OR ADVERTISER WITHIN A SPECIFIED AREA, OR BY
REASON OF THE FACT IT OCCUPIES PREMISES LEASED TO IT BY A PERSON WHO
ALSO LEASES PREMISES TO OTHER RETAIL OR SERVICE ESTABLISHMENTS."  THE
SENATE REPORT ON THE 1961 AMENDMENTS TO THE ACT INCLUDED THE FOLLOWING
STATEMENTS REGARDING THIS PORTION OF 3(R): 

"(THE MERE FACT THAT A GROUP OF INDEPENDENTLY OWNED AND OPERATED
STORES JOIN TOGETHER TO COMBINE THEIR PURCHASING ACTIVITIES OR TO RUN
COMBINED ADVERTISING WILL NOT FOR THESE REASONS MEAN THAT THEIR
ACTIVITIES ARE PERFORMED THROUGH UNIFIED OPERATION OR COMMON CONTROL
AND THEY WILL NOT FOR THESE REASONS BE CONSIDERED A PART OF THE SAME
'ENTERPRISE.'"  S. REP. NO. 145, 87TH CONG., 1ST SESS., 42. 

/9/  SEE, E.G., 6(B) (29 U.S.C. 206(B)), 7(A) (29 U.S.C. 207(A)),
AND 11(C) (29 U.S.C 211(C)). 

/10/  THE PETITIONERS' GROSS COMMISSIONS AMOUNTED TO SLIGHTLY MORE
THAN $434,000 AND SOMEWHAT LESS THAN $463,000 IN 1967 AND 1968,
RESPECTIVELY, THE YEARS INVOLVED IN THIS LITIGATION. 

/11/  THE RECORD DOES NOT SHOW WHAT PROPORTION OF THE RENTALS IS
ATTRIBUTABLE TO LEASES PREDATING D & F'S MANAGERIAL TENURE AT EACH
BUILDING.  WHEN THE UNDERLYING LEASE DOES PREDATE D & F'S CONTRACT WITH
THE OWNER, HOWEVER, THE TOTAL ABSENCE OF ANY PARTICIPATION BY D & F IN
THE LEASE TRANSACTION, OF WHICH THE PERIODIC RENTALS ARE MERELY THE
PROCEEDS, BELIES ANY ATTEMPT TO ATTRIBUTE THESE RENTALS TO D & F AS AN
INDEX OF ITS GROSS "SALES MADE OR BUSINESS DONE." 

/12/  PART II OF THE DISSENT SUGGESTS THAT THE "ANNUAL GROSS VOLUME
OF SALES MADE OR BUSINESS DONE" OF D & F'S ENTERPRISE "MUST INCLUDE
AMOUNTS PAID BY THE BUILDING OWNER TO COVER OPERATION AND MAINTENANCE
COSTS, PLUS THE AMOUNT PAID AS COMMISSIONS."  POST, AT 211.  THE
DISSENT'S RATIONALE IS THAT D & F WAS IN EFFECT PAYING THE OPERATION
AND MAINTENANCE COSTS ITSELF AND THEN BEING REIMBURSED BY THE APARTMENT
OWNERS.  SUCH AN ARGUMENT WAS NOT MADE BY THE SECRETARY.  EVEN IF SUCH
A PAYMENT AND REIMBURSEMENT ARRANGEMENT WOULD CAUSE THE OPERATION AND
MAINTENANCE COSTS TO BE INCLUDED IN MEASURING "ANNUAL GROSS VOLUME OF
SALES MADE OR BUSINESS DONE" (WHICH WE DO NOT DECIDE), IT IS CLEAR THAT
SUCH AN ARRANGEMENT DID NOT EXIST BETWEEN D & F AND THE BUILDING
OWNERS.  THE RENTALS WERE COLLECTED BY D & F AS THE AGENT FOR THE
OWNERS AND WERE PLACED IN BANK ACCOUNTS ON THEIR BEHALF.  D & F PAID
THE OPERATION AND MAINTENANCE COSTS OF THE BUILDINGS FROM THE OWNERS'
FUNDS PURSUANT TO ITS AGREEMENT WITH, AND ON THE AUTHORITY OF, THE
OWNERS. 

/13/  A FOOTNOTE IN THE SECRETARY'S BRIEF STATES THAT, IN ADDITION
TO ITS MANAGEMENT SERVICES, D & F ALSO SELLS INSURANCE AND REAL
ESTATE.  THESE OPERATIONS MIGHT BRING D & F'S "ANNUAL GROSS VOLUME OF
SALES MADE OR BUSINESS DONE" TO MORE THAN $500,000 FOR THE YEARS IN
QUESTION IF THE INSURANCE, REAL ESTATE SALES, AND REAL ESTATE
MANAGEMENT OPERATIONS OF D & F'S BUSINESS ARE "RELATED ACTIVITIES" FOR
ENTERPRISE COVERAGE PURPOSES UNDER 3(R) OF THE ACT.  WE LEAVE FOR THE
DISTRICT COURT THE CONSIDERATION OF THE SECRETARY'S CONTENTION. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
WHITE, AND MR. JUSTICE MARSHALL JOIN, CONCURRING IN PART AND DISSENTING
IN PART. 

I CONCUR IN THE COURT'S HOLDING THAT PETITIONERS ARE "EMPLOYERS" OF
THE MAINTENANCE WORKERS WHO SERVICE THE APARTMENT BUILDINGS MANAGED BY
D & F. 

I DISSENT, HOWEVER, FROM THE HOLDING THAT, FOR THE PURPOSES OF
3(S)(1), "THE ENTERPRISE OF D & F IS LIMITED TO THE SALE OF ITS
PROFESSIONAL MANAGEMENT SERVICES," AND THAT THOSE SERVICES MUST BE
MEASURED BY D & F'S COMMISSIONS.  THE RECORD IN THIS CASE LEAVES NO
DOUBT WHATEVER THAT D & F'S ENTERPRISE ACTIVITIES RESULTED IN BOTH THE
SALE OF PROFESSIONAL MANAGEMENT SERVICES AND RENTAL SPACE.  WHILE THE
COURT ACKNOWLEDGES THAT SALES OF RENTAL SPACE ARE "SALES MADE OR
BUSINESS DONE" WITHIN THE MEANING OF 3(S)(1), ANTE, AT 197, IT
NEVERTHELESS DECIDES THAT RENTAL SALES SHOULD NOT BE ATTRIBUTED TO D &
F BECAUSE:  "WHEN A LEASE IS NEGOTIATED BY D & F, ITS REMUNERATION IS
CALCULATED NOT FROM THE PROCEEDS DERIVED FROM THAT LEASE, BUT ONLY FROM
THE RENTALS COLLECTED DURING ITS MANAGERIAL TENURE, DURING WHICH PERIOD
IT RENDERS SIGNIFICANT AND SUBSTANTIAL MANAGEMENT SERVICES BEYOND ITS
EARLIER SERVICE IN NEGOTIATING THE LEASE."  ANTE, AT 200. 

TO BE SURE, D & F'S REMUNERATION FOR RENTING AN APARTMENT MAY NOT BE
SUBJECT TO PRECISE CALCULATION AT THE TIME OF THE SALE:  COMPENSATION
FOR THE SALE IS DERIVED FROM D & F'S PERCENTAGE OF MONTHLY RENT
RECEIPTS, WHICH INCLUDES D & F'S COMPENSATION FOR BUILDING OPERATION
AND MAINTENANCE; AND CONCEIVABLY THE BUILDING OWNER MIGHT TERMINATE D &
F'S MANAGEMENT CONTRACT BEFORE THE TENANT MAKES ALL THE MONTHLY
PAYMENTS REQUIRED UNDER THE LEASE, THUS REDUCING D & F'S COMPENSATION
FOR THE SALE OF THE RENTAL SPACE.  IT IS ALSO TRUE THAT AFTER SELLING
THE RENTAL SPACE, D & F PERFORMS OTHER SIGNIFICANT AND SUBSTANTIAL
MANAGEMENT SERVICES.  BUT THESE RATHER UNSURPRISING OBSERVATIONS HARDLY
SUPPLY A BASIS FOR THE COURT'S CONCLUSION THAT:  "IT IS CLEAR,
THEREFORE, THAT THE BUSINESS OF THE D & F ENTERPRISE IS NOT THE SALE OF
A PRODUCT (THE RENTAL OF REALTY) BUT A SALE OF PROFESSIONAL MANAGEMENT
SERVICES," AND THAT SUCH SERVICES MUST BE MEASURED BY COMMISSIONS. 
NEITHER THE FACTS IN THIS CASE, NOR THE PLAIN WORDS OF 3(S)(1), AND THE
UNCOMMONLY UNAMBIGUOUS LEGISLATIVE HISTORY OF THAT SECTION SUPPORT THE
COURT'S CONCLUSION THAT CONGRESS MEANT TO MEASURE ONE PARTICULAR
ENTERPRISE ACTIVITY TO THE EXCLUSION OF OTHERS. 

        I 

"WHOSE ANNUAL GROSS VOLUME OF SALES MADE OR BUSINESS DONE IS NOT LESS
THAN $500,000 . . . ."  /1/  29 U.S.C. 203(S)(1).  THE TERM "SALES"
EMPLOYED IN 3(S)(1) IS DEFINED WITH SPECIFICITY IN 3(K) OF THE ACT, 29
U.S.C. 203(K), TO MEAN "ANY SALE, EXCHANGE, CONTRACT TO SELL,
CONSIGNMENT FOR SALE, SHIPMENT FOR SALE, OR OTHER DISPOSITION"
(EMPHASIS ADDED).  THOSE ARE SIMPLE AND ENTIRELY UNAMBIGUOUS WORDS THAT
DO NOT EVEN REMOTELY IMPLY THAT ONLY SOME "SALES MADE OR BUSINESS DONE"
SHOULD BE MEASURED.  CLEARLY, 3(S)(1), IN TERMS, EMBRACES THE GROSS
VOLUME OF APARTMENT LEASES SOLD BY D & F, AS WELL AS THE PROFESSIONAL
MANAGEMENT SERVICES SOLD BY D & F TO BUILDING OWNERS.  /2/ 

IN ADDITION, EVEN WERE THE WORDING OF 3(S)(1) LESS CLEAR, "(THIS IS
NOT A CASE WHERE PERFORCE WE MUST ATTEMPT TO RESOLVE A CONTROVERSY AS
TO THE TRUE MEANING OF EQUIVOCAL STATUTORY LANGUAGE UNAIDED BY ANY
RELIABLE EXTRINSIC GUIDE TO LEGISLATIVE INTENTION," MITCHELL V.
KENTUCKY FINANCE CO., 359 U.S. 290, 293 (1959).  SENATE AND HOUSE
REPORTS CONCERNING THE 1961 AND 1966 "ENTERPRISE AMENDMENTS" TO THE ACT
SHOW EXPLICITLY THAT CONGRESS INTENDED ENTERPRISE ACTIVITIES TO BE
MEASURED BY ALL "SALES MADE OR BUSINESS DONE."  /3/ 

PRIOR TO 1961, THE PROTECTIONS OF THE ACT WERE EXTENDED ONLY TO
EMPLOYEES WHO WERE THEMSELVES "ENGAGED IN COMMERCE OR IN THE PRODUCTION
OF GOODS FOR COMMERCE," 6(A), 7(A), 29 U.S.C. 206(A), 207(A).  WITH THE
ENTERPRISE AMENDMENTS OF 1961, CONGRESS SUBSTANTIALLY BROADENED THE
COVERAGE OF THE ACT TO INCLUDE ALL EMPLOYEES "EMPLOYED IN AN ENTERPRISE
ENGAGED IN COMMERCE," 75 STAT. 67, 69.  BUT NOT EVERY ENTERPRISE
MEETING THE STATUTORY DEFINITION IN 3(R) OF THE ACT WAS BROUGHT WITHIN
THE ACT'S COVERAGE.  SECTION 3(S)(1) PRESCRIBED A DOLLAR-VOLUME TEST
THAT LIMITED THE ACT'S COVERAGE TO THOSE ENTERPRISES THAT HAD AN
"ANNUAL GROSS VOLUME OF SALES OF . . . NOT LESS THAN $1,000,000," ID.,
AT 66.  THE SENATE AND HOUSE REPORTS SHOW THAT THE DOLLAR-VOLUME TEST
WAS ADOPTED TO ESTABLISH AN ECONOMIC STANDARD THAT PREDICATES COVERAGE
OF THE ACT UPON THE SIZE OF THE ENTERPRISE AND ITS IMPACT UPON
COMMERCE.  SEE H. R. REP. NO. 75, 87TH CONG., 1ST SESS., 3, 7, 13
(1961); S. REP. NO. 145, 87TH CONG., 1ST SESS., 6 - 7, 31 (1961); SEE
ALSO THE STAFF REPORT OF LABOR SUBCOMMITTEE OFFERED ON THE FLOOR BY
SENATOR MCNAMARA, 107 CONG. REC. 5840 - 5842 (1961). 

TO INSURE THAT THE TERM "SALES" WOULD NOT BE GIVEN A NARROW OR
TECHNICAL INTERPRETATION THAT MIGHT EXCLUDE SOME ENTERPRISES THAT HAVE
THE REQUISITE DOLLAR VOLUME OF BUSINESS, BUT THAT DO NOT MAKE TYPICAL
COMMODITY SALES, /4/  CONGRESS AMENDED THE ENTERPRISE PROVISIONS OF THE
ACT IN 1966, 80 STAT. 831, BY SUBSTITUTING THE WORDING "ANNUAL GROSS
VOLUME OF SALES MADE OR BUSINESS DONE" (EMPHASIS ADDED), FOR "ANNUAL
GROSS VOLUME OF SALES,"  THE TERM EMPLOYED IN THE 1961 AMENDMENTS.  THE
SENATE REPORT FULLY EXPLAINS CONGRESS' REASONS FOR CHANGING THE
TERMINOLOGY: 

"THIS TEST . . . IS INTENDED TO MEASURE THE SIZE OF AN ENTERPRISE
FOR PURPOSES OF ENTERPRISE COVERAGE IN TERMS OF THE ANNUAL GROSS VOLUME
IN DOLLARS (EXCLUSIVE OF SPECIFIED TAXES) OF THE BUSINESS TRANSACTIONS
WHICH RESULT FROM ACTIVITIES OF THE ENTERPRISE, REGARDLESS OF WHETHER
SUCH TRANSACTIONS ARE 'SALES' IN A TECHNICAL SENSE. 

     ". . . THE ADDITION OF THE TERM 'BUSINESS DONE' TO THE

  STATUTORY LANGUAGE SHOULD MAKE THIS INTENT ABUNDANTLY PLAIN FOR

  THE FUTURE AND REMOVE ANY POSSIBLE REASON FOR MISAPPREHENSION. 

  THE ANNUAL GROSS VOLUME OF SALES MADE OR BUSINESS DONE BY AN

  ENTERPRISE, WITHIN THE MEANING OF SECTION 3(S), WILL THUS

  CONTINUE (UNDER THE 1966 AMENDMENTS) TO INCLUDE BOTH THE GROSS

  DOLLAR VOLUME OF THE SALES (AS DEFINED IN SEC. 3(K)) WHICH IT

  MAKES, AS MEASURED BY THE PRICE PAID BY THE PURCHASER FOR THE

  PROPERTY OR SERVICES SOLD TO HIM (EXCLUSIVE OF ANY EXCISE TAXES

  AT THE RETAIL LEVEL WHICH ARE SEPARATELY STATED), AND THE GROSS

 DOLLAR VOLUME OF ANY OTHER BUSINESS ACTIVITY IN WHICH THE

  ENTERPRISE ENGAGES WHICH CAN BE SIMILARLY MEASURED ON A DOLLAR

  BASIS.  THIS WOULD INCLUDE, FOR EXAMPLE, SUCH ACTIVITY BY AN

  ENTERPRISE AS MAKING LOANS OR RENTING OR LEASING PROPERTY OF ANY

  KIND.  S. REP. NO. 1487, 89TH CONG., 2D SESS., 7 - 8 (1966). 

  (EMPHASIS ADDED.) 

CONGRESSIONAL INTENT, WITH RESPECT TO THE DOLLAR-VOLUME TEST IN
3(S)(1), COULD NOT BE MORE CLEAR:  "THE BUSINESS TRANSACTIONS WHICH
RESULT FROM ACTIVITIES OF THE ENTERPRISE" ARE TO BE MEASURED.  NO
TRANSACTIONS ARE EXCEPTED FROM MEASUREMENT.  NOTHING IN THE LEGISLATIVE
HISTORY SUGGESTS THAT WHEN REMUNERATION FOR ESSENTIALLY DIFFERENT
TRANSACTIONS IS IN SOME WAY COMMINGLED, OR WHEN AN ENTERPRISE ENGAGES
IN CLOSELY RELATED ACTIVITIES, ONLY THOSE TRANSACTIONS CONSTITUTING THE
ESSENCE OF ENTERPRISE SHOULD BE MEASURED.  FOR THE PURPOSES OF 3(S)(1),
THE ONLY RELEVANT INQUIRY IS WHAT ACTIVITIES THE ENTERPRISE ENGAGES IN,
AND WHAT SALES OR BUSINESS TRANSACTIONS RESULT FROM THOSE ACTIVITIES. 
MEASUREMENT OF THE DOLLAR VOLUME OF THOSE TRANSACTIONS INDICATES THE
SIZE OF THE ENTERPRISE AND ITS IMPACT UPON COMMERCE. 

TURNING TO THE FACTS IN THIS CASE, IT IS CLEAR FROM THE STIPULATED
RECORD IN THE DISTRICT COURT THAT D & F ENGAGES IN ESSENTIALLY TWO
DISTINCT, THOUGH RELATED, ACTIVITIES.  FIRST, D & F RENTS APARTMENTS TO
THE PUBLIC.  IN THIS CONNECTION, D & F EMPLOYS A STAFF OF SALES
PERSONNEL WHO ADVERTISE AVAILABLE APARTMENTS, INTERVIEW PROSPECTIVE
TENANTS, AND NEGOTIATE AND RENEW LEASES ON BEHALF OF THE APARTMENT
BUILDING OWNER.  SECOND, D & F OPERATES AND MAINTAINS APARTMENT
BUILDINGS.  BY CONTRACT WITH THE BUILDING OWNER, D & F AGREES TO
COLLECT RENT; INITIATE, PROSECUTE, AND SETTLE ALL LEGAL PROCEEDINGS FOR
EVICTION, POSSESSION OF THE PREMISES, AND UNPAID RENT; MAKE REPAIRS AND
ALTERATIONS; NEGOTIATE CONTRACTS FOR UTILITIES AND OTHER NECESSARY
SERVICES; PURCHASE SUPPLIES; PAY ALL BILLS, INCLUDING MORTGAGE
PAYMENTS; PREPARE AN OPERATING BUDGET FOR THE BUILDING OWNER'S REVIEW
AND APPROVAL; SUBMIT PERIODIC REPORTS TO THE OWNER; AND HIRE,
DISCHARGE, AND SUPERVISE ALL LABOR AND EMPLOYEES REQUIRED FOR THE
OPERATION AND MAINTENANCE OF THE PREMISES.  THUS, D & F PERFORMS BOTH
BROKERAGE AND MANAGEMENT ACTIVITIES.  INDEED, THE FIRST ARTICLE OF
EVERY CONTRACT ENTERED INTO BY D & F AND A BUILDING OWNER STATES,
"OWNERS HEREBY EMPLOY AND APPOINT (D & F) AS THE SOLE AND EXCLUSIVE
RENTING AND MANAGEMENT AGENT . . ."  (EMPHASIS ADDED). 

THE BUSINESS TRANSACTIONS RESULTING FROM THESE ACTIVITIES ARE QUITE
DISTINCT AND SUBJECT TO SEPARATE MEASUREMENT.  D & F'S BROKERAGE
ACTIVITIES RESULT IN THE SALE OF RENTAL SPACE TO THE PUBLIC.  D & F'S
MANAGEMENT ACTIVITIES RESULT IN A BUSINESS TRANSACTION BETWEEN D & F
AND THE BUILDING OWNER, I.E., D & F'S SALE OF PROFESSIONAL MANAGEMENT
SERVICES. 

THE COURT, HOWEVER, FOCUSES UPON D & F'S MANAGEMENT ACTIVITIES AND
MEASURES ONLY THE RESULTING TRANSACTION BETWEEN D & F AND THE BUILDING
OWNERS.  TO BE SURE, THESE TRANSACTIONS HAVE AN IMPACT UPON COMMERCE
AND MUST THEREFORE BE MEASURED UNDER THE DOLLAR-VOLUME TEST.  AS A
RESULT OF THESE TRANSACTIONS, D & F HIRES AND SUPERVISES MORE THAN 100
PERSONNEL WHO PERFORM ALL THE FUNCTIONS NECESSARY FOR THE EFFICIENT
OPERATION AND MAINTENANCE OF APARTMENT BUILDINGS, AND THUS ENGAGES IN
ACTIVITIES WHICH CLEARLY INDUCE A FLOW OF MEN, MONEY, AND MATERIALS
ACROSS STATE LINES.  BUT, AS SIGNIFICANT AS THIS IMPACT UPON COMMERCE
MAY BE, IT PALES BY COMPARISON TO THE IMPACT CAUSED BY D & F'S
BROKERAGE ACTIVITIES.  D & F EMPLOYS A SPECIAL STAFF OF PERSONNEL TO
SELL APARTMENTS, WHOSE DUTIES INCLUDE DEVELOPING MARKETING STRATEGIES,
PLACING ADVERTISEMENTS IN VARIOUS MEDIA, INTERVIEWING PROSPECTIVE
TENANTS, AND NEGOTIATING LEASES.  THESE ACTIVITIES GENERATE A FLOW OF
MILLIONS OF DOLLARS PER YEAR IN GROSS RENT RECEIPTS, WITH CONSEQUENT
IMPACTS UPON COMMERCE TOO NUMEROUS AND OBVIOUS TO TRACE HERE.  THE
SIGNIFICANT IMPACT OF D & F'S BROKERAGE ACTIVITIES UPON COMMERCE IS NOT
DIMINISHED BY THE FACT THAT THE APARTMENT BUILDINGS ARE OWNED BY
OTHERS.  IT IS D & F'S BROKERAGE ACTIVITIES--NOT THE BUILDING OWNERS'-
THAT RESULT IN THE SALE OF RENTAL SPACE.  IN THIS RESPECT, D & F, AS A
BROKER SELLING RENTAL SPACE OWNED BY OTHERS, IS INDISTINGUISHABLE FROM
THE SALESMAN OF CONSIGNMENT GOODS, WHOSE "SALES MADE OR BUSINESS DONE,"
THE COURT CONCEDES, ANTE, AT 199, MUST BE MEASURED BY THE GROSS
RECEIPTS FROM SALES OF THE PRODUCT. 

IGNORING D & F'S BROKERAGE ACTIVITIES AND THEIR RESULTING
TRANSACTIONS, THEREFORE, NOT ONLY CONTRADICTS CONGRESS' CLEARLY
EXPRESSED INTENTION THAT TRANSACTIONS RESULTING FROM ANY ACTIVITY OF
THE ENTERPRISE BE MEASURED, BUT ALSO UNDERMINES THE EFFECTIVENESS OF
THE DOLLAR-VOLUME TEST AS A MEASURE OF AN ENTERPRISE'S SIZE AND IMPACT
UPON COMMERCE.  /5/  "WHERE BOTH THE WORDS OF A STATUTE AND ITS
LEGISLATIVE HISTORY CLEARLY INDICATE THE PURPOSE OF CONGRESS, IT SHOULD
BE RESPECTED," SCHWEGMANN BROS. V. CALVERT DISTILLERS CORP., 341 U.S.
384, 402 (1951) (FRANKFURTER, J., DISSENTING). 

II 

EVEN PROCEEDING ON THE COURT'S ERRONEOUS BASIC PREMISE, HOWEVER, D &
F'S SALE OF PROFESSIONAL MANAGEMENT SERVICES EXCEED $500,000 WHEN
COMPUTED, AS CONGRESS REQUIRED, UNDER THE SPECIFIC REGULATIONS
PROMULGATED BY THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR TO
EFFECTUATE 3(S)(1).  /6/  AS A GUIDE TO MAKING COMPUTATIONS UNDER
3(S)(1), CONGRESS INSTRUCTED THAT: 

"THE METHOD OF CALCULATING THE REQUISITE DOLLAR VOLUME OF SALES OR
BUSINESS (FOR ENTERPRISE COVERAGE PURPOSES) WILL BE THE SAME AS IS NOW
FOLLOWED UNDER THE LAW WITH RESPECT TO CALCULATING THE ANNUAL DOLLAR
VOLUME OF SALES IN RETAIL AND SERVICE ESTABLISHMENTS, AND IN LAUNDRIES
UNDER THE EXEMPTIONS PROVIDED IN SECTION 13(A)(2), (3), (4), AND (13)
OF THE ACT.  THE PROCEDURE FOR MAKING THE CALCULATION IS SET FORTH IN
THE DEPARTMENT'S INTERPRETATIVE BULLETIN (PERTAINING TO RETAILERS OF
GOODS AND SERVICES).  AS IT IS THERE STATED, THE 'ANNUAL DOLLAR VOLUME
OF SALES'  CONSISTS OF THE GROSS RECEIPTS FROM ALL TYPES OF SALES
DURING A 12 - MONTH PERIOD."  S. REP. NO. 145, 87TH CONG., 1ST SESS.,
38 (1961).  (EMPHASIS ADDED.)  THIS "GROSS RECEIPTS" METHOD OF
COMPUTATION IS PRESENTLY EMBODIED IN REGULATIONS WHICH STATE:  "THE
ANNUAL GROSS DOLLAR VOLUME OF SALES MADE OR BUSINESS DONE OF AN
ENTERPRISE OR ESTABLISHMENT CONSISTS OF THE GROSS RECEIPTS FROM ALL OF
ITS SALES OR ITS VOLUME OF BUSINESS DONE DURING A 12-MONTH PERIOD,"  29
CFR 779.265.  (EMPHASIS ADDED.)  SEE ALSO 29 CFR 779.259, 779.266 -
779.269. 

GROSS RECEIPTS FROM "SALES" OF PROFESSIONAL SERVICES ARE NOT
NECESSARILY LIMITED TO COMMISSIONS.  TRUE, IF THE "SALE" IS ONLY OF THE
PERSONAL LABOR OF THE SELLER, COMMISSIONS MAY WELL BE THE SOLE MEASURE
OF "SALES MADE OR BUSINESS DONE" BECAUSE COMMISSIONS ARE THE SELLER'S
ONLY GROSS RECEIPTS.  AND WHERE, IN ADDITION TO HIS OWN LABOR, THE
SELLER OF PROFESSIONAL SERVICES PROVIDES, FOR A COMMISSION, PERSONNEL
AND MATERIALS AS AN INTEGRAL PART OF THE PROFESSIONAL SERVICES
RENDERED, THE COMMISSION STILL CONSTITUTES THE GROSS RECEIPTS FOR THE
SALE OF SERVICES.  IF, ON THE OTHER HAND, THE PURCHASER OF THE
PROFESSIONAL SERVICES REIMBURSES THE SELLER FOR THE COSTS OF MEN AND
MATERIAL AND ALSO PAYS A COMMISSION, PLAINLY "GROSS RECEIPTS" UNDER THE
STATUTE AND REGULATION ARE THE REIMBURSEMENT PLUS THE COMMISSION. 

D & F WAS COMPENSATED FOR ITS PROFESSIONAL MANAGEMENT SERVICES ON A
COST-PLUS-COMMISSION BASIS.  IT EMPLOYED MAINTENANCE WORKERS AND
PURCHASED MATERIALS NECESSARY FOR THE OPERATION AND MAINTENANCE OF THE
APARTMENT BUILDINGS.  BY CONTRACT, THE BUILDING OWNER AGREED TO
REIMBURSE D & F FOR THESE OPERATION AND MAINTENANCE COSTS, /7/  AND, IN
ADDITION, TO PAY D & F A COMMISSION.  /8/  THUS, D & F'S GROSS RECEIPTS
MUST INCLUDE AMOUNTS PAID BY THE BUILDING OWNER TO COVER OPERATION AND
MAINTENANCE COSTS, PLUS THE AMOUNT PAID AS COMMISSIONS. 

/1/  SECTION 3(R) OF THE ACT, 29 U.S.C. 203(R), DEFINES "ENTERPRISE

  TO MEAN:  "THE RELATED ACTIVITIES PERFORMED (EITHER THROUGH
UNIFIED OPERATION OR COMMON

  CONTROL) BY ANY PERSON OR PERSONS FOR A COMMON BUSINESS PURPOSE,
AND INCLUDES ALL SUCH

  ACTIVITIES WHETHER PERFORMED IN ONE OR MORE ESTABLISHMENTS OR BY
ONE OR MORE CORPORATE OR

  OTHER ORGANIZATIONAL UNITS INCLUDING DEPARTMENTS OF AN
ESTABLISHMENT OPERATED THROUGH LEASING

  ARRANGEMENTS, BUT SHALL NOT INCLUDE THE RELATED ACTIVITIES
PERFORMED FOR SUCH ENTERPRISE BY AN

  INDEPENDENT CONTRACTOR . . ." 

THE DOLLAR-VOLUME TEST OF 3(S)(1) OF THE ACT, 29 U.S.C. 203(S)(1),
LIMITS COVERAGE DURING THE PERIOD FEBRUARY 1, 1967, THROUGH JANUARY 31,
1969, TO THOSE ENTERPRISES "WHOSE ANNUAL GROSS VOLUME OF SALES MADE OR
BUSINESS DONE IS NOT LESS THAN $500,000 (EXCLUSIVE OF EXCISE TAXES AT
THE RETAIL LEVEL WHICH ARE SEPARATELY STATED) . . . ."  ON FEBRUARY 1,
1969, THE DOLLAR-VOLUME TEST WAS REDUCED TO $250,000.  IT IS NOT
DISPUTED THAT EACH YEAR SINCE FEBRUARY 1, 1969, PETITIONERS HAVE MET
THE DOLLAR-VOLUME REQUIREMENT OF THE ACT. 

/2/  IN ADDITION TO THE COURT OF APPEALS BELOW, THE COURTS OF
APPEALS FOR THE FIFTH AND TENTH CIRCUITS HAVE HELD THAT THE LEASING OF
RENTAL PROPERTY CONSTITUTES A "SALE" WITHIN THE MEANING OF THE
ENTERPRISE PROVISIONS OF THE ACT.  SEE WIRTZ V. SAVANNAH BANK & TRUST
CO., 362 F.2D 857 (CA5 1966); WIRTZ V. FIRST NATIONAL BANK & TRUST CO.,
365 F.2D 641 (CA10 1966). 

/3/  A CONTINUANCE OF THE JUDICIAL PRACTICE OF LIBERAL
INTERPRETATION OF THE ACT WAS CLEARLY CONTEMPLATED BY CONGRESS: 

     "IN KEEPING WITH THE BROAD STATUTORY DEFINITIONS OF THE

  COVERAGE PHRASES USED, THE COURTS HAVE REPEATEDLY EXPRESSED AND

  ADHERED TO THE PRINCIPLE THAT THE COVERAGE PHRASES SHOULD RECEIVE

  A LIBERAL INTERPRETATION, CONSONANT WITH THE DEFINITIONS, WITH

  THE PURPOSE OF THE ACT, AND WITH ITS CHARACTER AS REMEDIAL AND

  HUMANITARIAN LEGISLATION."  H. R. REP. NO. 1366, 89TH CONG., 2D

  SESS., 10 (ACCOMPANYING THE 1966 AMENDMENTS TO THE ACT). 

/4/  QUESTIONS CONCERNING THE SCOPE OF THE TERM "SALES" IN THE
DOLLAR-VOLUME PROVISION OF THE 1961 ENTERPRISE AMENDMENTS HAD ARISEN IN
SUITS BROUGHT BY THE SECRETARY OF LABOR TO ENFORCE THE ACT.  FOR
EXAMPLE, IN WIRTZ V. SAVANNAH BANK & TRUST CO., THE DEFENDANT BANK
CONTENDED "THAT THE TERM 'SALES' MUST BE GIVEN A 'LITERAL
INTERPRETATION' AND . . . WOULD NOT INCLUDE RENTAL RECEIPTS, INTEREST
ON LOANS AND SECURITIES OR INCOME FROM SERVICES."  362 F.2D, AT 862 -
863 (FOOTNOTE OMITTED). 

/5/  AN ENTERPRISE'S DOLLAR VOLUME OF "SALES MADE OR BUSINESS DONE"
IS MEASURED BY ITS "GROSS RECEIPTS," SEE PART II, INFRA.  THE RECORD
INDICATES THAT D & F COLLECTED GROSS RENT RECEIPTS OF $7,752,600.86 IN
1967 AND $8,607,086.04 IN 1968.  THAT PORTION OF THE GROSS RENT
RECEIPTS ATTRIBUTABLE TO D & F'S SALES OF RENTAL SPACE CONSTITUTES THE
PROPER DOLLAR-VOLUME MEASURE OF D & F'S BROKERAGE ACTIVITIES.  AS
DISCUSSED IN PART II, INFRA, D & F'S "GROSS RECEIPTS" FOR ITS
MANAGEMENT ACTIVITIES MUST BE MEASURED BY THE COMMISSIONS D & F
RECEIVES FOR SUCH SERVICES PLUS ANY REIMBURSEMENTS D & F RECEIVES FOR
THE COST OF MEN AND MATERIALS.  SINCE D & F IS PAID A SINGLE COMMISSION
FOR BOTH ITS BROKERAGE AND MANAGEMENT ACTIVITIES, THAT PORTION
REPRESENTING COMPENSATION FOR ITS SALE OF RENTAL SPACE MUST BE
SUBTRACTED FROM THE TOTAL COMMISSION IN ORDER ACCURATELY TO MEASURE
THAT PORTION OF THE COMMISSION ATTRIBUTABLE TO ITS PROFESSIONAL
MANAGEMENT SERVICES. 

/6/  SECTION 602 OF PUB. L. 89 - 601, 80 STAT. 844, PROVIDES THAT THE
SECRETARY OF LABOR IS "AUTHORIZED TO PROMULGATE NECESSARY RULES,
REGULATIONS, OR ORDERS WITH REGARD TO THE (1966 ENTERPRISE) AMENDMENTS
MADE BY THIS ACT." 

/7/  THE APARTMENT BUILDING OWNERS NEVER ACTUALLY SENT FUNDS TO D &
F TO COVER ITS COSTS AND COMMISSIONS.  RATHER, THESE SUMS WERE DEDUCTED
BY D & F FROM THE TOTAL RECEIPTS IT COLLECTED FROM THE TENANTS OF EACH
APARTMENT BUILDING. 

/8/  D & F'S COMMISSIONS ARE EITHER 4% OR 6% OF GROSS RENT RECEIPTS,
DEPENDING UPON THE EXTENT OF THE SERVICES IT AGREES TO RENDER. 

HERBERT V. KELLY ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE FRANKLIN O. BLECHMAN AND E. D. DAVID. 

ANDREW L. FREY ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL BORK AND SYLVIA S. ELLISON.  /1/     /1/
HOWARD LICHTENSTEIN AND MARVIN DICKER FILED A BRIEF FOR THE REALTY
ADVISORY BOARD ON LABOR RELATIONS, INC., AS AMICUS CURIAE URGING
REVERSAL. 
..END :





FOLEY V. BLAIR & CO., 414 U.S. 212 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 72 - 1154.  ARGUED NOVEMBER 12, 1973--DECIDED DECEMBER
5,

1973; 471 F.2D 178, VACATED AND REMANDED. 


    RESPONDENT SECURITIES BROKER WAS ADJUDGED AN INVOLUNTARY

  BANKRUPT FOR HAVING COMMITTED THE FIFTH ACT OF BANKRUPTCY UNDER

  3A(5) OF THE BANKRUPTCY ACT.  THIS ADJUDICATION WAS REVERSED BY

  THE COURT OF APPEALS, BUT SUBSEQUENTLY THE BANKRUPTCY COURT, ON A

  PETITION BY THE BROKER WHICH HAD BEEN FILED SHORTLY AFTER THE

  ADJUDICATION, CONFIRMED THE BROKER'S PROPOSED ARRANGEMENT WITH

  CREDITORS UNDER CHAPTER XI OF THE ACT.  HELD:  WHERE THE ISSUE OF

  WHETHER THE CONFIRMATION OF THE CHAPTER XI ARRANGEMENT RENDERS

THE CASE MOOT BECAUSE THE PETITIONERS NO LONGER HAVE A MONETARY

  STAKE IN RESOLVING WHETHER THE FIFTH ACT OF BANKRUPTCY HAD BEEN

  COMMITTED, WAS BRIEFED AND ARGUED BEFORE THIS COURT, BUT BECAUSE

  OF THE SEQUENCE OF EVENTS WAS NECESSARILY NOT TREATED IN THE

  COURT OF APPEALS' OPINION, THE COURT OF APPEALS SHOULD HAVE THE

  OPPORTUNITY TO CONSIDER SUCH ISSUE IN THE FIRST INSTANCE, AND IN

  DOING SO, IT SHOULD CONSIDER THE EFFECT OF 64A(1) OF THE ACT

  PROVIDING THAT "ONE REASONABLE ATTORNEY'S FEE" FOR SERVICES

  RENDERED TO PETITIONING CREDITORS IN INVOLUNTARY BANKRUPTCY CASES

  SHALL BE TREATED AS A PRIORITY DEBT. 

PER CURIAM. 

BLAIR & CO., INC., WAS A MEMBER OF THE NEW YORK STOCK EXCHANGE,
ENGAGED IN THE GENERAL BROKERAGE AND COMMISSION BUSINESS.  IN THE EARLY
SUMMER OF 1970, AS THE RESULT OF OPERATING LOSSES AND A SHRINKAGE OF
CAPITAL, BLAIR BEGAN A PROGRAM OF SELF-LIQUIDATION, WHICH INVOLVED THE
TRANSFER OF CUSTOMER ACCOUNTS TO OTHER BROKER-DEALERS AND THE DELIVERY
OF SECURITIES TO CUSTOMERS SO REQUESTING.  BLAIR APPARENTLY BELIEVED
THAT ITS RESOURCES WERE SUFFICIENT TO ALLOW IT TO DISCHARGE ITS
OBLIGATIONS TO ALL CUSTOMERS AND GENERAL CREDITORS THROUGH THIS
PROGRAM.  IN SEPTEMBER 1970, HOWEVER, BLAIR CONCLUDED THAT SUCCESSFUL
IMPLEMENTATION OF THIS PROGRAM MIGHT REQUIRE THE ASSISTANCE OF A
SPECIAL TRUST FUND WHICH THE NEW YORK STOCK EXCHANGE HAD ESTABLISHED IN
1964 TO AVOID BANKRUPTCY OF MEMBER FIRMS.  /1/ 

CONSEQUENTLY, ON SEPTEMBER 21, 1970, BLAIR ENTERED INTO AN AGREEMENT
WITH THE NEW YORK STOCK EXCHANGE, WHEREBY THE TRUSTEES OF THE SPECIAL
FUND WOULD MAKE LOANS AND GUARANTEES TO PROTECT BLAIR'S CUSTOMERS
AGAINST LOSS.  THE AGREEMENT PROVIDED THAT THE FIRST SUCH LOAN,
GUARANTEE, OR ADVANCE BY THE FUND WOULD GIVE THE NEW YORK STOCK
EXCHANGE THE POWER TO APPOINT A LIQUIDATOR OF ITS OWN CHOOSING TO
MANAGE BLAIR'S AFFAIRS.  THE POWERS OF THE LIQUIDATOR WERE SET FORTH IN
THE AGREEMENT.  /2/ 

ON SEPTEMBER 25, 1970, THE TRUSTEES MADE AN INITIAL ADVANCE OF
$1,000, WHICH TRIGGERED THE APPOINTMENT OF RESPONDENT PATRICK E.
SCORESE AS LIQUIDATOR.  ANY PLANS FOR FURTHER ADVANCES OR LOANS WERE
TERMINATED FOUR DAYS LATER, HOWEVER, WHEN THE PETITIONERS, HOLDERS OF
SUBORDINATED DEBENTURES OF BLAIR, FILED AN INVOLUNTARY PETITION IN
BANKRUPTCY AGAINST BLAIR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK.  INTER ALIA, THE PETITION ALLEGED THAT
THE APPOINTMENT OF THE LIQUIDATOR CONSTITUTED AN ACT OF BANKRUPTCY
UNDER 3A(5) OF THE BANKRUPTCY ACT, 11 U.S.C. 21(A)(5).  THAT SECTION
MAKES IT AN ACT OF BANKRUPTCY IF ANY PERSON 

"(5) WHILE INSOLVENT OR UNABLE TO PAY HIS DEBTS AS THEY MATURE,
PROCURED, PERMITTED, OR SUFFERED VOLUNTARILY OR INVOLUNTARILY THE
APPOINTMENT OF A RECEIVER OR TRUSTEE TO TAKE CHARGE OF HIS PROPERTY." 

CONCLUDING THAT BLAIR'S CONSENT TO THE APPOINTMENT OF THE LIQUIDATOR
IN FACT CONSTITUTED THIS FIFTH ACT OF BANKRUPTCY, THE REFEREE
ADJUDICATED BLAIR AN INVOLUNTARY BANKRUPT.  THE DISTRICT COURT DENIED A
PETITION TO REVIEW HIS ORDER.  ON APPEAL, HOWEVER, A DIVIDED PANEL OF
THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED, REASONING THAT
THE LIQUIDATOR WAS NOT A "RECEIVER OR TRUSTEE" WITHIN THE STATUTORY
DEFINITION.  471 F.2D 178.  WE GRANTED THE WRIT OF CERTIORARI, 411 U.S.
930, IN ORDER TO RESOLVE THIS ISSUE OF SEEMING IMPORTANCE IN THE
ADMINISTRATION OF THE BANKRUPTCY ACT, AND ORAL ARGUMENT WAS HEARD ON
NOVEMBER 12, 1973. 

THE RESPONDENTS HAVE SUGGESTED, HOWEVER, THAT WE SHOULD NOT DECIDE
THE MERITS OF THE CONTROVERSY, BECAUSE THE PRESENT CIRCUMSTANCES OF
BLAIR & CO. RENDER THE CASE MOOT.  THE SUGGESTION IS PREMISED ON A
SERIES OF EVENTS FOLLOWING THE FILING OF THE ORIGINAL INVOLUNTARY
PETITION.  ON APRIL 15, 1971, TWO DAYS AFTER THE REFEREE HAD GRANTED
THE PETITIONERS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WHETHER
BLAIR HAD COMMITTED THE FIFTH ACT OF BANKRUPTCY, BLAIR FILED A PETITION
FOR RELIEF UNDER CHAPTER XI OF THE BANKRUPTCY ACT, PURSUANT TO 321 OF
THE ACT.  11 U.S.C 721.  /3/  ON MAY 18, 1971, THE REFEREE ENTERED AN
ORDER PURSUANT TO 325 OF THE ACT, 11 U.S.C 725, STAYING ORDINARY
BANKRUPTCY PROCEEDINGS UNDER CHAPTERS I - VII PENDING THE DETERMINATION
OF THE CHAPTER XI PETITION. 

ON MAY 26, 1971, BLAIR FILED WITH THE DISTRICT COURT ITS PROPOSED
ARRANGEMENT WITH ITS CREDITORS UNDER CHAPTER XI.  ON SEPTEMBER 27,
1971, THE BANKRUPTCY COURT FOUND THAT THE PROPOSED ARRANGEMENT HAD BEEN
ACCEPTED IN WRITING BY THE REQUISITE MAJORITY IN NUMBER AND AMOUNT OF
BLAIR'S CREDITORS, IN ACCORDANCE WITH 336(4) AND 362 OF THE ACT, 11
U.S.C 736(4), 762.  /4/  SHORTLY THEREAFTER ON OCTOBER 4, 1971, THE
PETITIONERS MOVED IN THE DISTRICT COURT TO DISMISS THE CHAPTER XI
PROCEEDINGS.  THIS MOTION WAS NOT ACTED UPON UNTIL FEBRUARY 16, 1973,
AFTER THE COURT OF APPEALS HAD REVERSED THE ADJUDICATION OF BLAIR AS AN
INVOLUNTARY BANKRUPT; ON THAT DATE, THE MOTION WAS DENIED.  ON JUNE 12,
1973, THE DISTRICT COURT DENIED A PETITION FOR REVIEW OF THAT ORDER. 
ON OCTOBER 2, 1973, WHILE THE PRESENT CASE WAS AWAITING ARGUMENT IN
THIS COURT, THE BANKRUPTCY COURT ENTERED AN ORDER CONFIRMING THE
ARRANGEMENT PROPOSED BY BLAIR UNDER CHAPER XI.  APPARENTLY, NO APPEAL
WAS TAKEN FROM THE ORDER OF CONFIRMATION. 

IN LIGHT OF THE CONFIRMATION OF THE CHAPTER XI ARRANGEMENT, THE
RESPONDENTS SUGGEST THAT THIS CASE NO LONGER PRESENTS A LIVE
CONTROVERSY.  THEY RELY UPON 371 OF THE ACT, 11 U.S.C. 771, WHICH
PROVIDES THAT CONFIRMATION OF AN ARRANGEMENT "SHALL DISCHARGE A DEBTOR
FROM ALL HIS UNSECURED DEBTS AND LIABILITIES PROVIDED FOR BY THE
ARRANGEMENT," AND ARGUE THAT THE PETITIONERS THUS NO LONGER HAVE ANY
MONETARY STAKE IN RESOLUTION OF THE CONTROVERSY OVER WHETHER THE FIFTH
ACT OF BANKRUPTCY WAS COMMITTED.  SEE GENERALLY 9 W. COLLIER,
BANKRUPTCY PARAS. 9.32, 9.33, (14TH ED. 1972).  THE RESPONDENTS ALSO
ARGUE THAT THE ORIGINAL ADJUDICATION OF BANKRUPTCY IS IRRELEVANT TO THE
PRESENT SITUATION, SINCE 322 OF THE ACT, 11 U.S.C 722, DOES NOT MAKE
THE PENDENCY OF BANKRUPTCY PROCEEDINGS A PREREQUISITE TO THE FILING OF
A PETITION FOR RELIEF UNDER CHAPTER XI. 

WHILE THE ISSUE OF MOOTNESS WAS BRIEFED AND ARGUED BEFORE THIS
COURT, IT WAS NOT TREATED IN THE OPINION OF THE COURT OF APPEALS, NO
DOUBT BECAUSE THE FINAL CONFIRMATION ORDER WAS NOT ENTERED BY THE
DISTRICT COURT UNTIL WELL AFTER THE APPELLATE COURT HAD ISSUED ITS
JUDGMENT.  UNDER THESE CIRCUMSTANCES, WE THINK IT APPROPRIATE THAT THE
COURT OF APPEALS HAVE THE OPPORTUNITY TO CONSIDER THE MOOTNESS ISSUE IN
THE FIRST INSTANCE.  IN REVIEWING THE QUESTION OF MOOTNESS, THE COURT
OF APPEALS SHOULD CONSIDER THE EFFECT OF 64A(1) OF THE ACT, 11 U.S.C.
104(A)(1).  INTER ALIA, THAT SECTION PROVIDES THAT "ONE REASONABLE
ATTORNEY'S FEE" FOR THE SERVICES RENDERED TO PETITIONING CREDITORS IN
INVOLUNTARY CASES SHALL BE TREATED AS A PRIORITY DEBT IN BANKRUPTCY
PROCEEDINGS, PAYABLE OUT OF THE ESTATE IN ADVANCE OF DISTRIBUTION OF
ANY DIVIDENDS TO CREDITORS.  SECTION 64 IS MADE APPLICABLE TO 321
CHAPTER XI PROCEEDINGS BY 302 OF THE ACT, 11 U.S.C. 702, AND THUS MIGHT
ALLOW THE TREATMENT OF AT LEAST SOME OF THE PETITIONERS' COUNSEL FEES
AS A PRIORITY EXPENSE.  SEE 8 W. COLLIER, BANKRUPTCY PARA. 5.33(3.1)
AND N.25 (14TH ED. 1972); SEE ALSO READING CO. V. BROWN, 391 U.S. 471,
475.  /5/ 

FOR THE REASONS STATED ABOVE, WE VACATE THE JUDGMENT OF THE COURT OF
APPEALS, AND REMAND THE CASE TO THAT COURT TO CONSIDER WHETHER IT HAS
NOW BECOME MOOT. 

              IT IS SO ORDERED. 

/1/  THE SPECIAL TRUST FUND IS AUTHORIZED BY THE CONSTITUTION OF THE
NEW YORK STOCK EXCHANGE, ART. XIX, 1. 

/2/  PARAGRAPH VIII OF THE AGREEMENT PROVIDED: 

     IMMEDIATELY FOLLOWING HIS APPOINTMENT BY THE EXCHANGE, THE

  LIQUIDATOR SHALL TAKE CONTROL OF THE BUSINESS AND PROPERTY OF THE

  CORPORATION FOR THE PURPOSE OF LIQUIDATING THE BUSINESS OF THE

  CORPORATION AND SHALL PROCEED AS FOLLOWS IN CONNECTION WITH THE

LIQUIDATION: 

     "I.) HE SHALL PROMPTLY TAKE SUCH STEPS AS HE MAY DEEM

  PRACTICABLE TO REDUCE THE CORPORATION'S OPERATING EXPENSES AND TO

  DISPOSE OF THE CORPORATION'S SALABLE ASSETS; 

     "II.) HE SHALL HAVE POWER TO RETAIN INDEPENDENT PUBLIC

  ACCOUNTANTS, CONSULTANTS, COUNSEL AND OTHER AGENTS AND ASSISTANTS

  AND SHALL HAVE POWER TO AUGMENT AND REDUCE OR ELIMINATE THE STAFF

  OF THE CORPORATION; 

     "III.) HE SHALL, AS SOON AS PRACTICABLE, ASSERT AND COLLECT OR

  SETTLE ALL CLAIMS AND RIGHTS OF THE CORPORATION; 

     "IV.) HE SHALL PAY ANY CLAIM AGAINST THE CORPORATION
CONSIDERED

  BY HIM TO BE A VALID CLAIM OF ANY CUSTOMER OF THE CORPORATION; 

     "V.) HE SHALL TAKE SUCH OTHER STEPS AS HE DEEMS NECESSARY OR

  APPROPRIATE TO LIQUIDATE THE BUSINESS OF THE CORPORATION.  IT IS

  AGREED THAT CONSISTENT WITH THE DUTY OF THE LIQUIDATOR TO EFFECT

  A FAIR AND ORDERLY LIQUIDATION OF THE BUSINESS OF THE CORPORATION

  TO ENABLE PROMPT SETTLEMENT WITH ITS CUSTOMERS, THE LIQUIDATOR

  SHALL ACT IN ACCORDANCE WITH WHAT HE DEEMS TO BE GOOD BUSINESS

  PRACTICE." 

ON THE SAME DATE THAT THIS AGREEMENT WAS SIGNED, BLAIR EXECUTED A
SECOND INSTRUMENT THAT MORE SPECIFICALLY DELINEATED THE POWERS OF THE
LIQUIDATOR, WHO WAS DESCRIBED AS "THE TRUE AND LAWFUL ATTORNEY AND
AGENT OF AND FOR THE CORPORATION (BLAIR)." 

/3/  THE ACTUAL ORDER ADJUDGING BLAIR A BANKRUPT WAS NOT ISSUED
UNTIL APRIL 27, 1971. 

/4/  THE SEPTEMBER 27 FINDING WAS AN ORAL ONE, MADE IN OPEN COURT. 
WRITTEN FINDINGS TO THE SAME EFFECT WERE FILED ON DECEMBER 27, 1971. 

/5/  WHILE THE EFFECT OF 64A(1) UPON THE ISSUE OF MOOTNESS WAS
DISCUSSED AT ORAL ARGUMENT, IT WAS NOT THE SUBJECT OF BRIEFING BY
EITHER OF THE PARTIES. 

LEO H. RAINES ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONERS. 

HARVEY R. MILLER ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE CHARLES SELIGSON, MICHAEL L. COOK, AND DONALD J. ZOELLER. 
..END :












MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. V. WARE, 414 U.S. 117 


       CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST

           APPELLATE DISTRICT

        NO. 72 - 312.  ARGUED OCTOBER 9 - 10, 1973--DECIDED
DECEMBER

4, 1973; 24 CAL. APP. 3D 35, 100 CAL. RPTR.  791,

   AFFIRMED. 


    WHEN RESPONDENT VOLUNTARILY TERMINATED HIS EMPLOYMENT AS AN

  ACCOUNT EXECUTIVE IN PETITIONER SECURITIES BROKER'S SAN FRANCISCO

  OFFICE FOR A SIMILAR POSITION WITH A COMPETITOR, PETITIONER

  DETERMINED, PURSUANT TO A FORFEITURE CLAUSE OF ITS EMPLOYEES'

  PROFIT-SHARING PLAN, THAT RESPONDENT, BY ENTERING COMPETITIVE

  EMPLOYMENT, HAD FORFEITED ALL RIGHTS TO THE PLAN'S BENEFITS. 

  RESPONDENT SOUGHT A DECLARATORY JUDGMENT IN A CALIFORNIA STATE

  COURT THAT THE FORFEITURE CLAUSE WAS UNLAWFUL UNDER 16600 OF THE

  CALIFORNIA BUSINESS AND PROFESSIONS CODE, WHICH INVALIDATES EVERY

  CONTRACT RESTRAINING A PERSON FROM ENGAGING IN A LAWFUL

  BUSINESS.  PETITIONER ANSWERED, INTER ALIA, THAT A CONDITION OF

  RESPONDENT'S EMPLOYMENT WITH PETITIONER WAS APPROVAL BY THE NEW

  YORK STOCK EXCHANGE; THAT RESPONDENT, AT THE TIME OF HIS

  EMPLOYMENT, APPLIED ON AN EXCHANGE FORM FOR SUCH APPROVAL, AS

  REQUIRED BY EXCHANGE RULE 345(A)(1), PLEDGING TO ABIDE BY

  EXCHANGE RULES; AND AS REQUIRED BY RULE 347(B) AGREED TO SUBMIT

  TO ARBITRATION ANY CONTROVERSY ARISING OUT OF TERMINATION OF HIS

  EMPLOYMENT.  ON PETITIONER'S APPEAL FROM THE DENIAL OF ITS

  PETITION FOR AN ORDER DIRECTING ARBITRATION, THE CALIFORNIA COURT

OF APPEAL HELD THAT THE FORFEITURE CLAUSE OF THE PROFIT-SHARING

  PLAN WAS INVALID AS IN RESTRAINT OF TRADE UNDER CALIFORNIA LAW

  WHEN APPLIED TO CALIFORNIA RESIDENTS, AND PETITIONER'S

  CONTRIBUTIONS UNDER THE PLAN WERE WAGES UNDER PROVISIONS OF THE

  CALIFORNIA LABOR CODE GIVING WAGE EARNERS A RIGHT OF ACTION FOR

  WAGES DUE AND UNPAID DESPITE ANY PRIVATE AGREEMENT TO ARBITRATE. 

  HELD:  EXCHANGE RULES 345(A)(1) AND 347(B), PROMULGATED AS

  SELF-REGULATORY MEASURES PURSUANT TO 6 OF THE SECURITIES EXCHANGE

  ACT OF 1934(THE ACT), AND RESPONDENT'S PLEDGE TO ABIDE BY THOSE

  RULES, DO NOT PRE-EMPT THE AVENUES OF WAGE RELIEF OTHERWISE

AVAILABLE TO RESPONDENTS UNDER CALIFORNIA LAW.  PP. 125 - 140. 

     (A) RULE 347(B) DOES NOT FALL UNDER THE EXCHANGES MANDATE TO

  PROTECT THE INVESTING PUBLIC AND TO INSURE JUST AND EQUITABLE

  TRADE PRACTICES SET FORTH IN 6(D) AND 19(B) OF THE ACT, SO AS TO

  REQUIRE PRE-EMPTION OF CONTRARY STATE LAW BY SUCH RULE, THERE

  BEING NOTHING IN THE ACT OR ANY SEC RULE OR REGULATION SPECIFYING

  ARBITRATION AS A FAVORED MEANS OF RESOLVING EMPLOYER-EMPLOYEE

  DISPUTES, AND IT BEING CLEAR THAT RULE 347(B) WOULD NOT BE

  SUBJECT TO THE SEC'S MODIFICATION OR REVIEW UNDER 19(B).  PP. 134

  - 136 

     (B) RULE 347(B) CANNOT BE CATEGORIZED AS PART OF A NEED FOR

  UNIFORM NATIONAL REGULATION, THERE BEING NO REVELATION IN THE ACT

  OR IN ANY SEC REGULATION THAT NATIONWIDE UNIFORMITY OF AN

  EXCHANGE'S HOUSEKEEPING AFFAIRS IS NECESSARY, AND IT IS NOT BEING

  SHOWN THAT NATIONAL UNIFORMITY IN THE AREA OF WAGE CLAIMS IS

  VITAL TO FEDERAL SECURITIES POLICY.  PP. 136 - 137. 

     (C) THE "APPLICABLE STATE LAWS" REFERRED TO IN 6(C) OF THE
ACT,

  WHICH SUBJECTS EXCHANGE RULES TO A REQUIREMENT OF CONSISTENCY

  WITH THE ACT, "AND THE APPLICABLE LAWS OF THE STATE IN WHICH IT

  IS LOCATED," ARE NOT IN THIS INSTANCE, MERELY BECAUSE THE NEW

  YORK STOCK EXCHANGE IS IN NEW YORK CITY, THE LAWS OF NEW YORK SO

  AS TO REQUIRE THE CALIFORNIA COURT TO APPLY NEW YORK LAW

  COMPELLING ARBITRATION OF THIS DISPUTE AND VALIDATING THE

  FORFEITURE CLAUSE OF THE PROFIT-SHARING PLAN, SINCE 6(C) HAS NO

  INDEPENDENT EXISTENCE CREATING SOME SORT OF SPURIOUS UNIFORMITY

  OF APPLICATION FOR ALL STATES, BUT MERELY REQUIRES THAT ANY

  EXCHANGE RULE ADOPTED OUTSIDE THE ACT'S CONTEXT COMPORT WITH THE

  LAWS OF THE STATE IN WHICH THE EXCHANGE IS LOCATED.  PP. 137 -

 139 

     (D)  WHERE CALIFORNIA HAS MANIFESTED A STRONG STATUTORY POLICY

  OF PROTECTING ITS WAGE EARNERS FROM WHAT IT REGARDS AS

  UNDESIRABLE ECONOMIC PRESSURES AFFECTING THE EMPLOYMENT

  RELATIONSHIP, THAT POLICY SHOULD PREVAIL ABSENT ANY INTERFERENCE

  WITH THE FEDERAL REGULATORY SCHEME; IN THIS CASE THERE IS NOT

  ONLY NO SUCH INTERFERENCE, BUT THE ACT'S STRUCTURE MANIFESTS A

  CONGRESSIONAL INTENT THAT STATE POLICIES IN THIS AREA SHOULD

  OPERATE VIGOROUSLY.  PP. 139 - 140. 

     (E) EVEN THOUGH PETITIONER'S PROFIT-SHARING PLAN IS OPEN TO
ALL

  ELIGIBLE EMPLOYEES, IN THE UNITED STATES, AND RESPONDENT'S

  EMPLOYMENT AND PETITIONER'S BUSINESS ARE INTERSTATE, THE

  APPLICATION OF THE CALIFORNIA LAW WOULD NOT UNDULY BURDEN

  INTERSTATE COMMERCE.  P. 140. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT IN WHICH ALL
MEMBERS JOINED, EXCEPT STEWART, J., WHO TOOK NO PART IN THE DECISION OF
THE CASE. 

MR JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER CERTAIN RULES OF THE NEW YORK
STOCK EXCHANGE, PROMULGATED AS SELF-REGULATING MEASURES PURSUANT TO 6
OF THE SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 885, 15 U.S.C. 78F,
AND A BROKERS' EMPLOYEES' PLEDGE TO ABIDE BY THOSE RULES, PRE-EMPT
AVENUES OF WAGE RELIEF OTHERWISE AVAILABLE TO THE EMPLOYEE UNDER STATE
LAW.  THE CALIFORNIA COURT OF APPEAL ANSWERED THIS IN THE NEGATIVE.  24
CAL. APP. 3D 35, 100 CAL. RPTR.  791 (1972).  BECAUSE OF THE
SIGNIFICANCE OF THE QUESTION IN THE AREA OF FEDERAL-STATE RELATIONS, WE
GRANTED CERTIORARI.  410 U.S. 908 (1973). 

        I 

RESPONDENT, DAVID WARE, IN JULY 1958 ENTERED THE EMPLOY OF
PETITIONER MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., A NEW YORK
CORPORATION, AS A REGISTERED REPRESENTATIVE OR "ACCOUNT EXECUTIVE" IN
THE PETITIONER'S SAN FRANCISCO OFFICE.  WARE WORKED THERE CONTINUOUSLY
UNTIL MARCH 1969 WHEN HE VOLUNTARILY TERMINATED THAT RELATIONSHIP AND
ACCEPTED A SIMILAR POSITION IN SAN FRANCISCO WITH ONE OF MERRILL
LYNCH'S COMPETITORS. 

MERRILL LYNCH IS A BROKER-DEALER IN SECURITIES AND IS A MEMBER
CORPORATION OF THE NEW YORK STOCK EXCHANGE.  SINCE PRIOR TO 1958, THE
FIRM HAS HAD A NONCONTRIBUTORY PROFIT-SHARING PLAN FOR ITS EMPLOYEES IN
THE UNITED STATES.  UNDER THE PLAN AN EMPLOYEE MAY HAVE ALLOCATED TO
HIS ACCOUNT BOTH VESTED AND UNVESTED UNITS, AS THEREIN DESCRIBED. 
ARTICLE 11 OF THE PLAN RELATES TO "FORFEITURE OF BENEFITS" UPON THE
HAPPENING OF SPECIFIED EVENTS.  ONE SUCH EVENT IS COMPETITIVE
ACTIVITY: 

     "11.1 A PARTICIPANT WHO, IN THE DETERMINATION OF THE
COMMITTEE,

  VOLUNTARILY TERMINATES HIS EMPLOYMENT WITH THE CORPORATION OR

  PROVOKES HIS TERMINATION AND ENGAGES IN AN OCCUPATION WHICH IS,

  IN THE DETERMINATION OF THE COMMITTEE, COMPETITIVE WITH THE

  CORPORATION, OR ANY AFFILIATE OR SUBSIDIARY THEREOF, SHALL

  FORFEIT ALL RIGHT TO ANY BENEFITS OTHERWISE DUE OR TO BECOME DUE

  FROM THE TRUST FUND WITH RESPECT TO UNITS CREDITED FOR FISCAL

  YEARS SUBSEQUENT TO THE FISCAL YEAR ENDED DECEMBER 30, 1960." 

THE COMMITTEE REFERRED TO IS PROVIDED FOR BY THE PLAN'S ART. 1.  IT
HAS NOT LESS THAN FIVE NOR MORE THAN NINE PERSONS (NOT NECESSARILY
EMPLOYEES) APPOINTED BY MERRILL LYNCH AND SERVING "AT THE PLEASURE OF
THE CORPORATION."  ARTICLE 1.2 STATES THAT THE COMMITTEE "SHALL
ADMINISTER THE PLAN" AND "SHALL DETERMINE ANY QUESTIONS ARISING IN THE
ADMINISTRATION, INTERPRETATION AND APPLICATION OF THE PLAN, WHICH
DETERMINATION SHALL BE CONCLUSIVE AND BINDING ON ALL PERSONS." 

AT THE TIME WARE TERMINATED HIS EMPLOYMENT WITH MERRILL LYNCH IN
MARCH 1969, BOTH VESTED AND UNVESTED UNITS WERE ALLOCATED TO HIS
ACCOUNT.  UPON HIS DEPARTURE, THE COMMITTEE, PURSUANT TO ART. 11.1,
DETERMINED THAT WARE, BY ENTERING COMPETITIVE EMPLOYMENT, HAD FORFEITED
ALL RIGHTS TO BENEFITS DUE OR TO BECOME DUE HIM UNDER THE PLAN. 

IN JANUARY 1970 WARE FILED THIS CLASS ACTION IN CALIFORNIA STATE
COURT AGAINST MERRILL LYNCH AND THE MEMBERS OF THE COMMITTEE.  THE
CLASS PURPORTED TO CONSIST OF WARE AND ALL OTHER SIMILARLY SITUATED
FORMER MERRILL LYNCH EMPLOYEES IN CALIFORNIA.  DECLARATORY RELIEF WAS
SOUGHT TO THE EFFECT THAT ART. 11.1 WAS "UNLAWFUL AND VOID UNDER
APPLICABLE CALIFORNIA LAW," AND THAT THE DEFENDANTS WERE OBLIGATED TO
PAY ALL VESTED UNITS CREDITED FROM DECEMBER 30, 1960, TO THE DATE OF
TERMINATION OF EMPLOYMENT. 

ALTHOUGH THE STATUTE WAS NOT CITED IN THE COMPLAINT, THE PARTIES
APPEAR TO AGREE THAT THE SUIT RESTED PRINCIPALLY ON 16600 OF THE
CALIFORNIA BUSINESS AND PROFESSIONS CODE.  THIS READS: 

     "EXCEPT AS PROVIDED IN THIS CHAPTER, EVERY CONTRACT BY WHICH

  ANYONE IS RESTRAINED FROM ENGAGING IN A LAWFUL PROFESSION, TRADE,

  OR BUSINESS OF ANY KIND IS TO THAT EXTENT VOID." 

IN ITS ANSWER, MERRILL LYNCH ALLEGED THAT THE PROVISIONS OF ART.
11.1 WERE A RESONABLE RESTRAINT ON COMPETITION UNDER THE LAWS OF NEW
YORK OR OF THE UNITED STATES; THAT, PURSUANT TO ART. 22.1 /1/  OF THE
PLAN, IT WAS TO BE CONSTRUED ACCORDING TO THE LAWS OF NEW YORK; THAT
UNDER NEW YORK LAW ART. 11.1 IS LAWFULL, VALID, AND ENFORCEABLE; THAT A
CONDITION OF WARE'S EMPLOYMENT WITH MERRILL LYNCH WAS APPROVAL BY THE
NEW YORK STOCK EXCHANGE; THAT WARE, AT THE TIME OF HIS EMPLOYMENT IN
1958, EXECUTED A WRITTEN APPLICATION, ON AN EXCHANGE FORM, FOR APPROVAL
OF HIS EMPLOYMENT AS A REGISTERED REPRESENTATIVE, AS REQUIRED BY THE
EXCHANGE'S RULE 345(A)(1); /2/  THAT BY PARA. 30(J) OF THAT FORM WARE
AGREED THAT ANY CONTROVERSY WITH A MEMBER ARISING OUT OF THE
TERMINATION OF HIS EMPOLYMENT WOULD BE SETTLED BY ARBITRATION AT THE
INSTANCE OF ANY PARTY; /3/  THAT THE EXCHANGE APPROVED THE APPLICATION;
THAT WARE'S SOLE REMEDY WAS ARBITRATION; AND THAT A DECLARATION THAT
ART. 11.1 WAS INVALID UNDER THE LAWS OF CALIFORNIA WOULD CAUSE MERRILL
LYNCH TO DISCRIMINATE IN THE ADMINISTRATION OF THE PLAN AND WOULD
DEPRIVE IT OF DUE PROCESS OF LAW. 

MERRILL LYNCH, INVOKING 1281.2 OF THE CALIFORNIA CODE OF CIVIL
PROCEEDURE, /4/  PETITIONED THE STATE COURT FOR AN ORDER DIRECTING
ARBITRATION PURSUANT TO THE ABOVE-QUOTED PARA. 30(J) AND WARE'S
PLEDGES, CONTAINED IN HIS APPLICATION FOR APPROVAL OF EMPLOYMENT, THAT
HE WOULD "ABIDE BY THE CONSTITUTION AND RULES OF THE BOARD OF GOVERNORS
OF THE NEW YORK STOCK EXCHANGE" AND THAT HE SUBMITTED HIMSELF "TO THE
JURISDICTION OF SUCH EXCHANGE." 

WARE OPPOSED ARBITRATION ON THE GROUNDS THAT NO CONTRACT TO
ARBITRATE EXISTED BETWEEN HIM AND MERRILL LYNCH; THAT IF AN AGREEMENT
TO THIS EXISTED, IT WAS A CONTRACT OF ADHESION; AND THAT, SINCE 16600
MADE THE FORFEITURE PROVISION ILLEGAL UNDER CALIFORNIA LAW, IT WAS NOT
ARBITRABLE. 

THE STATE TRIAL COURT, BY MINUTE ORDER, DENIED THE PETITION TO
COMPEL ARBITRATION. 

MERRILL LYNCH THEN APPEALED.  THE CALIFORNIA COURT OF APPEAL HELD
THAT A WRITTEN AGREEMENT TO ARBITRATE DID EXIST; THAT THE EXCHANGE FORM
WAS "A CONTRACTUAL AGREEMENT"; AND THAT THE "APPROVAL AND REGISTRATION
BY MERRILL LYNCH MADE THE APPLICATION A CONTRACT BETWEEN THE PARTIES." 
24 CAL. APP. ED, AT 40 - 41, 100 CAL. RPTR., AT 795 - 796.  THE COURT
WENT ON TO HOLD, HOWEVER, THAT THE FORFEITURE CLAUSE WAS INVALID AND
UNENFORCEABLE UNDER CALIFORNIA LAW, WHEN APPLIED TO CALIFORNIA
RESIDENTS, AS BEING IN RESTRAINT OF TRADE.  24 CAL. APP. 3D, AT 42 -
43, 100 CAL. RPTR., AT 796 - 797.  CITED AS SUPPORTING AUTHORITIES WERE
FRAME V. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., 20 CAL. APP. 3D
668, 97 CAL. RPTR.  811 (1971), WHERE THE SAME FORFEITURE CLAUSE WAS
HELD INEFFECTIVE UNDER CALIFORNIA LAW, BUT WHICH THE COURT ALSO HELD
THAT AN ENFORCEABLE AGREEMENT TO ARBITRATE EXISTED, /5/  AND MUGGILL V.
REUBEN H. DONNELLEY CORP., 62 CAL. 2D 239, 398 P. 2D 147 (1965). 

FINALLY, THE COURT OF APPEAL, WHILE TAKING NOTE OF CALIFORNIA'S
"STRONG, PUBLIC POLICY" FAVORING ARBITRATION, HELD THAT MERRILL LYNCH'S
CONTRIBUTIONS UNDER PROFIT-SHARING PLAN WERE WAGES, WITHIN THE MEANING
OF 200 /6/  AND 229 /7/  OF THE CALIFORNIA LABOR CODE, AND THAT 229
GAVE WARE "THE RIGHT TO BRING HIS CLAIM IN COURT IN SPITE OF ANY
AGREEMENT TO ARBITRATE."  24 CAL. APP. ED, AT 43 - 44, 100 CAL. RPTR.,
AT 797 - 798.  MERRILL LYNCH'S PETITION FOR HEARING BY THE SUPREME
COURT OF CALIFORNIA WAS DENIED WITHOUT OPINION.  SEE 24 CAL. APP. 3D,
AT 45. 

        II 

THE BROAD ISSUE THUS PRESENTED TO US IS THE EXTENT TO WHICH
AUTHORITY DELEGATED UNDER A FEDERAL REGULATORY STATUTE PRE-EMPTS STATE
LAW.  SPECIFICALLY, WE ARE CONCERNED WITH THE QUESTIONS (A) WHETHER, IN
THE CONTEXT OF THE PRESENT CASE, 229 OF THE CALIFORNIA LABOR CODE,
WHICH WOULD PRECLUDE COMPULSORY ARBITRATION OF WAGE DISPUTES, IS
INEFFECTIVE UNDER THE SUPREMACY CLAUSE; (B) WHETHER 16600 OF THE
CALIFORNIA BUSINESS AND PROFESSIONS CODE UNDULY INTERFERES WITH FEDERAL
REGULATION OF THE SECURITIES INDUSTRY; AND (C) WHETHER THE CALIFORNIA
LEGISLATION UNCONSTITUTIONALLY BURDENS INTERSTATE COMMERCE. 

IN ORDER TO RESOLVE THESE QUESTIONS, WE THINK IT NECESSARY TO REVIEW
THE PRINCIPLES OF STOCK EXCHANGE PRE-EMPTION DELINEATED IN THIS COURT'S
DECISION A DECADE AGO IN SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S.
341 (1963), AND TO EXAMINE THE GENESES OF THE FEDERAL ACT AND OF THE
STATUTE. 

A. IN SILVER THE COURT CONSIDERED WHETHER, AND TO WHAT EXTENT, THE
FEDERAL ANTITRUST LAWS APPLY TO SECURITIES EXCHANGES REGULATED BY THE
1934 ACT.  IT HELD THAT THE MERE PASSAGE OF THE ACT DID NOT EFFECT, PRO
TANTO, A REPEAL OF THE FEDERAL ANTITRUST LAWS, BUT THAT PARTICULAR
INSTANCES OF EXCHANGE REGULATION THAT FALL WITHIN THE SCOPE AND
PURPOSES OF THE ACT MAY BE JUSTIFIED AND WILL BE UPHELD AGAINST
ANTITRUST CHALLENGE.  ID., AT 357 - 361.  WITH RESPECT TO THE SPECIFIC
QUESTION THERE PRESENTED, IT WAS CLEAR THAT THE NEW YORK STOCK EXCHANGE
HAD EXERCISED ITS "TREMENDOUS ECONOMIC POWER,"  ID., AT 361, AGAINST
TWO NONMEMBERS BY DISCONTINUING THEIR DIRECT-WIRE TELEPHONE CONNECTIONS
WITH MEMBERS OF THE EXCHANGE WITHOUT NOTICE, HEARING, OR STATEMENT OF
REASONS.  IT WAS THE COURT'S VIEW, UNDER THE CIRCUMSTANCES, THAT
PROCEDURAL GUARANTEES WERE NECESSARY IN ORDER TO PROTECT AGAINST THE
POSSIBILITY OF PROSCRIBED ANTITRUST PRACTICES AND TO PROVIDE THE
"EXTREMELY BENEFICIAL EFFECT IN KEEPING EXCHANGE ACTION FROM STRAYING
INTO AREAS WHOLLY FOREIGN TO THE PURPOSES OF THE SECURITIES EXCHANGE
ACT."  ID., AT 362.  SEE ALSO, RICCI V. CHICAGO MERCANTILE EXCHANGE,
409 U.S. 289, 300 - 301 (1973). 

IN CONTRAST WITH SILVER, WE ARE NOT CONFRONTED HERE WITH CONFLICTING
FEDERAL REGULATORY SCHEMES.  THE PRESENT CONTROVERSEY CONCERNS THE
INTERRELATIONSHIP BETWEEN STATUES ADOPTED, RESPECTIVELY, BY THE FEDERAL
GOVERNMENT AND A STATE.  THE ANALYTICAL FRAMEWORK OF SILVER IS
INSTRUCTIVE, NONETHELESS.  THERE THE COURT REVIEWED CAREFULLY THE
SECURITIES EXCHANGE REGULATORY SCHEME THAT CONGRESS HAD ADOPTED IN
ORDER TO IDENTIFY THE CHARACTER AND PURPOSES OF THE ACT AND THE EXTENT
TO WHICH INSTANCES OF EXCHANGE SELF-REGULATION WERE NECESSARY TO THE
FURTHERANCE OF CONGRESSIONAL AIMS AND OBJECTIVES.  373 U.S., AT 349 -
361.  IT WAS MINDFUL, ALSO OF THE PURPOSES BEHIND THE CONFLICTING
STATUES WHICH, IN THAT CASE, WERE THE ANTITRUST LAWS. 

SO HERE, WE MAY NOT OVERLOOK THE BODY OF LAW RELATING TO THE
SENSITIVE INTERRELATIONSHIP BETWEEN STATUES ADOPTED BY THE SEPARATE,
YET COORDINATE, FEDERAL AND STATE SOVEREIGNTIES.  OUR ANALYSIS IS ALSO
TO BE TEMPERED BY THE CONVICTION THAT THE PROPER APPROACH IS TO
RECONCILE "THE OPERATION OF BOTH STATUTORY SCHEMES WITH ONE ANOTHER
RATHER THAN HOLDING ONE COMPLETELY OUSTED."  ID., AT 357.  /8/  THE
PRINCIPLE THAT EMERGED FROM SILVER, AND THE PREMISE UPON WHICH THE
COURT BASED ITS JUDGMENT, WAS THAT CONFLICTING LAW, ABSENT REPEALING OR
EXCLUSIVITY PROVISIONS, SHOULD BE PRE-EMPTED BY EXCHANGE SELF
REGULATION "ONLY TO THE EXTENT NECESSARY TO PROTECT THE ACHIEVEMENT OF
THE AIMS OF THE SECURITIES EXCHANGE ACT".  ID., AT 361. 

B. THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, 15 U.S.C. 78A TO
78HH - 1, "REGULATES SECURITIES MARKETS AND THE BUSINESS OF SECURITIES
BROKERS AND DEALERS."  REPORT OF SPECIAL STUDY OF SECURITIES MARKETS OF
THE SECURITIES AND EXCHANGE COMMISSION, H. R. DOC. NO. 95, PT. 1, 88TH
CONG., 1ST SESS., 3 (1963).  TWO TYPES OF REGULATION ARE REFLECTED IN
THE ACT.  SOME PROVISIONS IMPOSE DIRECT REQUIREMENTS AND PROHIBITIONS. 
AMONG THESE ARE MANDATORY EXCHANGE REGISTRATION, RESTRICTIONS ON BROKER
AND DEALER BORROWING, AND THE PROHIBITION OF MANIPULATIVE OR DECEPTIVE
PRACTICES.  OTHER PROVISIONS ARE FLEXIBLE AND RELY ON THE TECHNIQUE OF
SELF-REGULATION TO ACHIEVE THEIR OBJECTIVES.  IBID.  SUPERVISED SELF
REGULATION, ALTHOUGH CONSONANT WITH THE TRADITIONAL PRIVATE GOVERNANCE
OF EXCHANGES, ALLOWS THE GOVERNMENT TO MONOTOR BUSINESS IN THE PUBLIC
INTEREST.  /9/  MR. JUSTICE DOUGLAS, WHEN HE WAS CHAIRMAN OF THE
SECURITIES AND EXCHANGE COMMISSION, OBSERVED THAT THIS PERMITS THE
EXCHANGES TO "TAKE THE LEADERSHIP WITH GOVERNMENT PLAYING A RESIDUAL
ROLE.  GOVERNMENT WOULD KEEP THE SHOTGUN, SO TO SPEAK, BEHIND THE DOOR,
LOADED, WELL OILED, CLEANED, READY FOR USE BUT WITH THE HOPE IT WOULD
NEVER HAVE TO BE USED."  W. DOUGLAS, DEMOCRACY AND FINANCE 82 (J. ALLEN
ED. 1940). 

THE ACT PROVIDED FOR STOCK EXCHANGES TO BE REGISTERED BY THE
COMMISSION.  6, 15 U.S.C. 78F.  IT OUTLAWS SECURITIES TRANSACTIONS
CONDUCTED ON UNREGISTERED EXCHANGES.  5, 15 U.S.C. 78E.  IT CONDITIONS
REGISTRATION ON A SHOWING THAT THE EXCHANGE HAS RULES THAT ARE "JUST
AND ADEQUATE TO INSURE FAIR DEALING AND TO PROTECT INVESTORS."  6(D),
15 U.S.C. 78FD).  AN EXCHANGE SEEKING REGISTRATION MUST ALSO MEET OTHER
REQUIREMENTS.  IT MUST AGREE "TO ENFORCE SO FAR AS IS WITHIN ITS POWERS
COMPLIANCE BY ITS MEMBERS" WITH THE ACT AND THE COMMISSION'S RULES AND
REGULATIONS THEREUNDER.  6(A)(1), 15 U.S.C. 78FA)(1).  IT MUST INCLUDE
IN ITS RULES A PROVISION FOR THE DISCIPLINING OF A MEMBER "FOR CONDUCT
OR PROCEEDING INCONSISTENT WITH JUST AND EQUITABLE PRINCIPLES OF
TRADE."  6(B), 15 U.S.C. 78F (B).  AND IT MUST SUPPLY TO THE COMMISSION
COPIES OF ITS CONSTITUTION, ARTICLES OF INCORPORATION, AND BYLAWS, AND
SUCH DATA OR OTHER INFORMATION AS THE COMMISSION MAY REQUIRE "AS BEING
NECESSARY OR APPROPRIATE FOR THE PROTECTION OF INVESTORS OR TO INSURE
FAIR DEALINGS IN SECURITIES TRADED IN UPON SUCH EXCHANGE OR TO INSURE
FAIR ADMINISTRATION OF SUCH CHANGE."  19(B), 15 U.S.C. 78SB).  /10/
THIS AUTHORITY, HOWEVER, RELATES TO 12 DESIGNATED SUBJECT AREAS AND
"SIMILAR MATTERS."  IBID. AS A CONSEQUENCE, SOME EXCHANGE RULES ARE NOT
SUBJECT TO DIRECT COMMISSION SCRUTINY, IN RE RULES OF THE NEW YORK
STOCK EXCHANGE, 10 S.E.C. 270, 294 (1941), AND, INSTEAD, IF THEY DO NOT
OPERATE CONTRARY TO THE INTERESTS OF INSURING FAIR DEALINGS AND
PROTECTING INVESTORS, WOULD KINDLE NO FEDERAL CURIOSITY AND WOULD SERVE
NO IDENTIFIABLE PUBLIC PURPOSE.  IT IS TO BE NOTED, MOREOVER, THAT THE
COMMISSION HAS EXERCISED ITS DIRECT SUPERVISORY POWER SPARINGLY. 
SECURITIES INDUSTRY STUDY, REPORT OF THE SUBCOMMITTEE ON SECURITIES,
COMMITTEE ON BANKING, HOUSING AND URBAN AFFAIRS, S. DOC. NO. 93 - 13,
P. 180 (1973).     APART FROM REGISTRATION AND DIRECT COMMISSION
SUPERVISION, THE ONLY OTHER QUALIFICATION ON EXCHANGE AUTONOMY IS THE
STATUTORY REQUIREMENT THAT ANY RULES PROMULGATED AND ENFORCED BY AN
EXCHANGE NOT BE "INCONSISTENT WITH THIS (ACT) AND THE RULES AND
REGULATIONS THEREUNDER AND THE APPLICABLE LAWS OF THE STATE IN WHICH IT
IS LOCATED."  6(C), 15 U.S.C. 78FC). 

FROM THIS REVIEW OF RELEVANT PORTIONS OF THE ACT, IT IS APPARENT
THAT CONGRESS ACCORDED MAXIMUM SCOPE TO SELF-REGULATION, AND REPOSED
POWERS IN THE COMMISSION "TO BE EXERCISED AS NEEDED BUT IN SUCH MANNER
AS TO ALLOW MAXIMUM INITIATIVE AND RESPONSIBILITY TO THE SELF
REGULATORS."  REPORT OF THE SPECIAL STUDY, SUPRA, PT. 4, P. 726.  IN
THE WORDS OF THE SENATE REPORT ISSUED AT THE TIME OF ENACTMENT, 

"THUS THE INITIATIVE AND RESPONSIBILITY FOR PROMULGATING REGULATIONS
PERTAINING TO THE ADMINISTRATION OF THEIR ORDINARY AFFAIRS REMAIN WITH
THE EXCHANGES THEMSELVES.  IT IS ONLY WHERE THEY FAIL ADEQUATELY TO
PROVIDE PROTECTION TO INVESTORS THAT THE COMMISSION IS AUTHORIZED TO
STEP IN AND COMPEL THEM TO DO SO."  S. REP. NO. 792, 73D CONG., 2D
SESS., 13 (1934). 

IT IS THUS CLEAR THAT THE CONGRESSIONAL AIM IN SUPERVISED SELF
REGULATION IS TO INSURE FAIR DEALING AND TO PROTECT INVESTORS FROM
HARMFUL OR UNFAIR TRADING PRACTICES.  TO THE EXTENT THAT ANY EXCHANGE
RULE OR PRACTICE CONTRAVENES THIS POLICY, OR ANY AUTHORIZED RULE OR
REGULATION UNDER THE ACT, THE RULE MAY BE SUBJECT TO APPROPRIATE
FEDERAL REGULATORY SUPERVISION OR ACTION.  CORRESPONDINGLY, ANY RULE OR
PRACTICE NOT GERMANE TO FAIR DEALING OR INVESTOR PROTECTION WOULD NOT
APPEAR TO FALL UNDER THE SHADOW OF THE FEDERAL UMBRELLA; IT IS,
INSTEAD, SUBJECT TO APPLICABLE STATE LAW. 

C. ON THE OTHER SIDE ARE CALIFORNIA STATUES.  BY THE ADDITION OF 229
TO ITS LABOR CODE IN 1959 CALIFORNIA CODIFIED FOR THE WAGE EARNER, WITH
THE SOLITARY COLLECTIVE-BARGAINING-AGREEMENT EXCEPTION, A RIGHT OF
ACTION TO RECOVER DUE AND UNPAID WAGES FROM HIS EMPLOYER, REGARDLESS OF
THE EXISTENCE OF ANY PRIVATE AGREEMENT TO ARBITRATE.  SELECTED 1959
CODE LEGISLATION, 34 CAL. ST. B.J. 581, 706 - 707.  THIS WAS DUE,
APPARENTLY, TO THE LEGISLATURE'S DESIRE TO PROTECT THE WORKER FROM THE
EXPLOITATIVE EMPLOYER WHO WOULD DEMAND THAT A PROSPECTIVE EMPLOYEE SIGN
AWAY IN ADVANCE HIS RIGHT TO RESORT TO THE JUDICIAL SYSTEM FOR REDRESS
OF AN EMPLOYMENT GRIEVANCE.  THE STATUTE'S LEGISLATIVE HISTORY IS
SPARSE, BUT THE EXCEPTION CARVED OUT FOR COLLECTIVE-BARGAINING DISPUTES
PROVIDES THE OBVIOUS CONCLUSION THAT IT WAS THE INDIVIDUAL, NONUNION,
AND OTHERWISE UNPROTECTED WAGE EARNER WHO WAS THE INTENDED BENEFICIARY
OF THE STATE'S GRACE IN PROVIDING THIS REMEDY.  THIS CONCLUSION IS
FORTIFIED BY THE ACT THAT 200(A) OF THE CODE DEFINES "WAGES" BROADLY TO
INCLUDE "ALL AMOUNTS FOR LABOR PERFORMED BY EMPLOYEES OF EVERY
DESCRIPTION, WHETHER THE AMOUNT IS FIXED OR ASCERTAINED BY THE STANDARD
OF TIME, TASK, PIECE, COMMISSION BASIS, OR OTHER METHOD OF
CALCULATION."  AND THE CALIFORNIA COURT ITSELF HAS NOTED "THE
ESTABLISHED POLICY . . . OF PROTECTING AND FAVORING" THE RIGHT,
"'FAVORED' IN THE LAW," OF THE WAGE EARNER "TO ALL WAGES LAWFULLY
ACCRUED TO HIM."  CITY OF UKIAH V. FONES, 64 CAL. 2D 104, 108, 410 P.
WD 369, 371 (1966).  IT MAY BE, TOO, THAT THE LEGISLATURE FELT THAT
ARBITRATION WAS A LESS THAN ADEQUATE PROTECTION AGAINST AWARDING THE
WAGE EARNER SOMETHING SHORT OF WHAT WAS DUE COMPENSATION.  IN ANY
EVENT, THERE IS THE HARDER SUBSTANCE OF CALIFORNIA CASE LAW.  IN LOCAL
659 V. COLOR CORP. OF AMERICA.  47 CAL. 2D 189, 302 P.2D 94 (1956),
DECIDED PRIOR TO THE ADDITION OF 229 TO THE LABOR CODE, THE COURT HELD
THAT THE THEN 1280 OF THE STATE'S CODE OF CIVIL PROCEDURE, PROVIDING
FOR THE ENFORCEMENT OF AN ARBITRATION CLAUSE IN A CONTRACT AND
CHARACTERIZING IT AS "IRREVOCABLE,"  WAS SUBJECT TO WAIVER OR MUTUAL
RESCISSION.  THE STATUTE PROVIDED THAT ARBITRATION WAS REQUIRED "SAVE
UPON SUCH GROUNDS AS EXIST AT LAW OR IN EQUITY FOR THE REVOCATION OF
ANY CONTRACT."  /11/  CALIFORNIA, THUS, DOES NOT EXCLUDE A REMEDY
AVAILABLE AT LAW OR IN EQUITY FOR THE REVOCATION OF ANY CONTRACT THAT
HAPPENS TO CONTAIN AN ARBITRATION CLAUSE. 

THIS CONCLUSION AS TO THE BROAD AND LIBERAL INTENDMENT OF 229 IS
REINFORCED BY THE COURT OF APPEALS'S OBSERVATION IN THE PRESENT CASE,
24 CAL. APP. 3D, AT 44 - 45, 100 CAL. RPTR., AT 798, THAT THE STATE'S
ARBITRATION ACT, REVISED IN 1961, EMBRACED NO ATTEMPT TO CHANGE THE
RIGHT OF ACTION FIRST ACCORDED THE WAGE EARNER ONLY TWO YEARS EARLIER
IN 1959.  THE RECORD IS CLEAR, MOREOVER, THAT LEGISLATIVE ATTENTION WAS
DRAWN IN 1961 TO 229.  THE CALIFORNIA SENATE WAS ASKED TO RECONSIDER
ITS UNANIMOUS VOTE IN FAVOR OF THE ARBITRATION ACT ON THE GROUND THAT
THERE WAS LEGISLATIVE UNCERTAINTY AS TO ITS EFFECT UPON 229.  2 JOURNAL
OF THE SENATE 2215 - 2218 (MAY 4, 1961).  THE MOTION TO RECONSIDER WAS
LATER WAIVED, AND THE BILL WAS TRANSMITTED TO THE ASSEMBLY.  ID., AT
2287 (MAY 1, 1961).  THUS, THE SENATE HAD IN MIND THE RIGHTS ACCORDED
WAGE EARNERS BY 229, AND THOSE RIGHTS WERE PLACED IN FOCUS WITH THE
"HISTORICAL FRIENDLINESS OF CALIFORNIA TO THE INSTITUTION OF
ARBITRATION."  FELDMAN, ARBITRATION MODERNIZED--THE NEW CALIFORNIA
ARBITRATION ACT, 34 SO. CALIF. L. REV. 413, 414 (1961).  SECTION 229
THUS SURVIVED SUBSEQUENT LEGISLATIVE SCRUTINY AND HAS NOW MANIFESTED
ITSELF AS AN IMPORTANT STATE POLICY THROUGH INTREPRETATION BY THE
CALIFORNIA COURTS. 

ONE MIGHT ALSO CONSIDER, AS THE RESPONDENT SUGGESTS HERE, THE
CALIFORNIA ANTITRUST POLICIES EMBODIED IN 16600 OF THE BUSINESS AND
PROFESSIONS CODE, QUOTED, SUPRA, AT 121.  THIS STATUTE HAS BEEN IN
EFFECT FOR MANY YEARS AND IS WELL ENTRENCHED IN CASE LAW AND IN
COMMENTARY.  /12/  WE NEED NOT PURSUE IN DEPT THE POLICY CONSIDERATIONS
SUPPORTING THIS STATUTE BECAUSE, IN OUR JUDGMENT, 16600, STANDING ALONE
AND APART FROM 229, UNDER EXISTING CASE LAW, WOULD NOT PROVIDE THE
NECESSARY SUPPORT TO UPHOLD A CHALLENGE TO ARBITRATION.  OUR
INCLINATION IN THIS RESPECT IS BUTTRESSED BY THE DIFFERENT RESULTS
REACHED BY THE CALIFORNIA COURT OF APPEAL IN THIS CASE AND IN FRAME,
SUPRA, RESPECTIVELY.  IN FRAME, THE COURT DECIDED THAT THE "STRONG
(CALIFORNIA) PUBLIC POLICY" AGAINST RESTRAINING ONE FROM ENGAGING IN A
LAWFUL BUSINESS FORECLOSED THE APPLICATION OF THE MORE PERMISSIVE NEW
YORK LAW TO THE FORFEITURE PROVISION OF THE PROFIT-SHARING PLAN. 
ALTHOUGH CALIFORNIA PUBLIC POLICY THUS SERVED TO NULLIFY THE CONTRACT'S
FORFEITURE PROVISION, ARBITRATION, NONETHELESS, WAS NOT PRECLUDED.  BY
WAY OF CONTRAST, THE PRESENT CASE PROVOKED A CLAIM UNDER 229, IN
ADDITION TO WARE'S RELIANCE ON 16600, IN THE FACE OF MERRILL LYNCH'S
MOTION TO COMPEL ARBITRATION.  THE CALIFORNIA COURT DECLARED AGAIN THAT
THE FORFEITURE CLAUSE WAS INVALID BUT, IN ADDITION, HELD THAT THE
ARBITRATION CLAUSE WAS UNENFORCEABLE, RELYING ON 16600 AND 229,
RESPECTIVELY.  WITH THIS ANALYSIS OF THE STATE STATUTES MADE BY THE
CALIFORNIA COURT, WE REST ON THAT COURT'S INTERPRETATION OF STATE LAW
AND DO NOT, AND IN FACT CANNOT, DISTURB ITS DETERMINATION THAT UNDER
THOSE STATURES ABITRATION WILL LIE IN THE ONE INSTANCE BUT NOT IN THE
OTHER. 

WITH THIS BACKGROUND, WE TURN TO SPECIFIC ARGUMENTS ADVANCED BY THE
PETITIONER HERE. 

        III 

A. MERRILL LYNCH SUGGESTS THAT RULE 347(B) OF THE NEW YORK STOCK
EXCHANGE, SET FORTH IN N. 3, SUPRA, FALLS UNDER THE EXCHANGE'S MANDATE
TO PROTECT THE INVESTING PUBLIC AND TO INSURE JUST AND EQUITABLE TRADE
PRACTICES.  /13/  ITS CONTENTION IS THAT CONFIDENCE IN THE INDUSTRY AND
IN THE INTEGRITY AND ABILITY OF ITS MEMBERS HAS BEEN JEOPARDIZED BY
FAILURES OF MAJOR BROKERAGE HOUSES WITH CONSEQUENT SUBSTANTIAL LOSSES
TO THE PUBLIC.  INVESTOR CONFIDENCE WOULD BE FURTHER UNDERMINED, IT IS
SAID, BY PROTRACTED LITIGATION BETWEEN MEMBER FIRMS AND THEIR EMPLOYEES
OVER DISPUTES THAT ARISE OUT OF EMPLOYMENT RELATIONSHIPS; PUBLIC AIRING
OF EVERY CLAIM OF THIS KIND WILL ERODE CONFIDENCE IN THE MARKET; AND
ARBITRATION, ON THE OTHER HAND, WILL INTERNALIZE THESE DISPUTES AND
PROVIDE AN EXPEDITIOUS AND ECONOMICAL METHOD OF RESOLUTION BY
ARBITRATORS FAMILIAR WITH INDUSTRY CUSTOMS AND PRACTICES. 

AS IS SEEN BY OUR DISCUSSION ABOVE, 6(D) AND 19(B) OF THE ACT, 15
U.S.C. 78FD) AND 78SB), ESTABLISH THE MEASURE OF CONGRESSIONALLY
DELEGATED AUTHORITY FOR SELF-REGULATION IN THE NATIONAL INTEREST. 
INSURE FAIR DEALING AND TO PROTECT INVESTORS."  SECTION 19(B) GIVES THE
COMMISSION LIMITED POWER OVER CERTAIN TYPES OF EXCHANGE RULES "FOR THE
PROTECTION OF INVESTORS OR TO INSURE FAIR DEALING IN SECURITIES" OR TO
"INSURE FAIR ADMINISTRATION" OF THE EXCHANGES.  /14/  MEASURED BY THESE
STANDARDS, WE CONCLUDE THAT THE POLICY ARGUMENTS ADVANCED BY MERRILL
LYNCH DO NOT REQUIRE PRE-EMPTION OF CONTRARY STATE LAW BY RULE 347(B). 

TO BEGIN WITH THE OBVIOUS, THERE IS NOTHING IN THE ACT AND THERE IS
NO COMMISSION RULE OR REGULATION THAT SPECIFIES ARBITRATION AS THE
FAVORED MEANS OF RESOLVING EMPLOYER-EMPLOYEE DISPUTES.  /15/  IT IS
ALSO CLEAR THAT RULE 347(B) WOULD NOT BE SUBJECT TO THE COMMISSION'S
MODIFICATION OR REVIEW UNDER 19(B).  THE UNITED STATES, AS AMICUS,
CONCEDES AS MUCH, AND WE CONCLUDE, AS THE GOVERNMENT SUGGESTS, THAT THE
RELATIONSHIP BETWEEN COMPULSORY EMPLOYER-EMPLOYEE ARBITRATION AND FAIR
DEALING AND INVESTOR PROTECTION IS "EXTREMELY ATTENUATED AND
PERIPHERAL, IF IT EXISTS AT ALL."  BRIEF FOR THE UNITED STATES 9. 
MERRILL LYNCH HAS NOT ALLEGED THAT ARBITRATION WILL EFFECT FAIR
DEALINGS OR RESULT IN INVESTOR PROTECTION.  IT SUGGESTS ONLY THAT
INVESTOR CONFIDENCE NOT BE TAKEN FURTHER BY PUBLIC AIRING OF EMPLOYER
EMPLOYEE DISPUTES.  THERE IS NO EXPLANATION OF WHY A JUDICIAL
PROCEEDING, EVEN THOUGH PUBLIC, WOULD UNDERMINE INVESTOR CONFIDENCE. 
IT IS DIFFICULT TO UNDERSTAND WHY MUFFLING A GRIEVANCE IN THE CLOAKROOM
OF ARBITRATION WOULD PREVENT LESSENING OF CONFIDENCE IN THE MARKET.  TO
THE CONTRARY, FOR THE GENERALLY SOPHISTICATED INVESTING PUBLIC, MARKET
CONFIDENCE MAY TEND TO BE RESTORED IN THE LIGHT OF IMPARTIAL PUBLIC
COURT ADJUDICATION.  FURTHERMORE, IT SHOULD BE APPARENT THAT, SO FAR AS
INVESTOR CONFIDENCE IS CONCERNED, COMPULSORY ARBITRATION OF AN INVESTOR
OF AN EMPLOYEE-EMPLOYER GRIEVANCE IS NO SUBSTITUTE FOR DIRECT EFFECTIVE
DISCIPLINARY ACTION AGAINST ANY ABUSIVE EXCHANGE PRACTICES.  OTHER
RULES OF THE EXCHANGE SERVE THIS VERY FUNCTION.  RULE 345(B), FOR
EXAMPLE, PERMITS THE EXCHANGE TO DISAPPROVE, AND THEREBY TO FORESTALL,
THE EMPLOYMENT OF ANY PERSON, AND RULE 345(D) SPELLS OUT PUNITIVE
MEASURES FOR "CONDUCT INCONSISTENT WITH JUST AND EQUITABLE PRINCIPLES
OF TRADE" OR "ACTS DETRIMENTAL TO THE INTEREST OR WELFARE OF THE
EXCHANGE" OR "CONDUCT CONTRARY TO AN ESTABLISHED PRACTICE AND THE
EXCHANGE."  THESE MEASURES, DESIGNED TO INSURE FAIR DEALING AND TO
PROTECT INVESTORS, ARE THE KIND DIRECTLY RELATED TO THE ACT'S PURPOSES
AND ORDINARILY WOULD NOT BE EXPECTED TO YIELD TO PROVISIONS OF STATE
LAW. 

B. RULE 347(B) CANNOT BE CATEGORIZED, AS THE PETITIONER SUGGESTS, AS
PART OF A NEED FOR UNIFORM NATIONAL REGULATION.  THERE IS NO REVELATION
IN THE ACT OR IN ANY COMMISSION RULE OR REGULATION THAT NATIONWIDE
UNIFORMITY OF AN EXCHANGE'S HOUSEKEEPING AFFAIRS IS NECESSARY OR
DESIRABLE.  AND MERRILL LYNCH HAS NOT DEMONSTRATED THAT NATIONAL
UNIFORMITY IN THE AREA OF WAGE CLAIMS IS VITAL, IN SOME WAY, TO FEDERAL
SECURITIES POLICY.  CONVENIENCE IN EXCHANGE MANAGEMENT MAY BE
DESIRABLE, BUT IT DOES NOT SUPPORT A PLEA FOR UNIFORM APPLICATION WHEN
THE RULE TO BE APPLIED IS NOT NECESSARY FOR THE ACHIEVEMENT OF THE
NATIONAL POLICY OBJECTIVES REFLECTED IN THE ACT.  INDEED, CONGRESS, IN
THE SECURITIES FIELD, HAS NOT ADOPTED A REGULATION SYSTEM WHOLLY APART
FROM AND EXCLUSIVE OF STATE REGULATION.  CF. RICE V. SANTA FE ELEVATOR
CORP., 331 U.S. 218, 234 - 236 (1947); CAMPBELL V. HUSSEY, 368 U.S.
297, 302 (1961).  INSTEAD, CONGRESS INTENDED TO SUBJECT THE EXCHANGES
TO STATE REGULATION THAT IS NOT INCONSISTENT WITH THE FEDERAL ACT. 
REQUIREMENT OF CONSISTENCY WITH THE ACT "AND THE APPLICABLE LAWS OF THE
STATE IN WHICH (THE EXCHANGE) IS LOCATED."  "WHERE THE GOVERNMENT HAS
PROVIDED FOR COLLABORATION THE COURTS SHOULD NOT FIND CONFLICT."  UNION
BROKERAGE CO. V. JENSEN, 322 U.S. 202, 209 (1944).  AND WE OBSERVED IN
SILVER THAT THE SCHEME OF SELF-REGULATION PROVIDES IN SOME CASES FOR NO
AGENCY CHECK ON EXCHANGE BEHAVIOR AND, THEREFORE, "(SOME FORM OF REVIEW
OF EXCHANGE SELF-POLICING, WHETHER BY ADMINISTRATIVE AGENCY OR BY THE
COURTS, IS . . . NOT AT ALL INCOMPATIBLE WITH THE FULFILLMENT OF THE
AIMS OF THE SECURITIES EXCHANGE ACT."  373 U.S., AT 359. 

C. IT IS ALSO ARGUED THAT THE APPLICABLE STATE LAWS REFERRED TO IN
6(C) ARE THE LAWS OF THE STATE IN WHICH THE EXCHANGE ITSELF IS
LOCATED.  THUS, BECAUSE THE NEW YORK STOCK EXCHANGE IS IN THE CITY OF
NEW YORK, IT IS SAID THAT "THE APPLICABLE LAWS" ARE THOSE OF NEW YORK
AND THAT THE CALIFORNIA COURT WAS IN ERROR IN NOT APPLYING NEW YORK LAW
THAT WOULD HAVE COMPELLED ARBITRATION OF THIS DISPUTE AND WOULD HAVE
VALIDATED THE FORFEITURE PROVISION OF THE PROFIT-SHARING PLAN.     WE
ARE NOT PERSUADED THAT THIS IS WHAT CONGRESS INTENDED.  SECTION 6(C)
HAS NO INDEPENDENT EXISTENCE CREATING SOME SORT OF SPURIOS UNIFORMITY
OF APPLICATION FOR ALL STATES.  IT HAS MEANING ONLY IN THE CONTEXT OF
THE ASSERTION OF A FEDERAL INTEREST, AND IT HINGES ON OUR DETERMINATION
THAT THE PARTICULAR RULE BE INTEGRALLY RELATED TO OR SUBSTANTIALLY
EFFECT THE AIMS AND PURPOSES OF THE ACT.  IT MERELY REQUIRES THAT ANY
EXCHANGE RULE ADOPTED OUTSIDE THE CONTEXT OF THE ACT BE CONSISTENT WITH
THE LAWS OF THE STATE IN WHICH THE EXCHANGE IS LOCATED.  /16/ 

IF THE RULE IS SOUGHT TO BE ENFORCED IN ANOTHER STATE, NORMAL
CONFLICT OF LAWS PRINCIPLES COME INTO PLAY, AND THE RULE'S EFFECT
DEPENDS ON THE RESOLUTION OF THAT CONFLICT.  WERE THIS NOT SO, THERE
WOULD BE NO PURPOSE BEHIND THE CHOICE-OF-LAW CLAUSE IN THE PROFIT
SHARING PLAN ITSELF.  MORE IMPORTANTLY, THE UNIFORM APPLICATION MERRILL
LYNCH'S INTERPRETATION OF THE ACT WOULD PURPORTEDLY FOSTER IS SEEN TO
BE EPHEMERAL WHEN ONE CONSIDERS THAT BROKER-DEALERS LIKE PETITIONER ARE
ALSO MEMBERS OF EXCHANGES LOCATED OUTSIDE NEW YORK, AND ARE THEREFORE
SUBJECT, UNDER THE "STATE OF LOCATION" THEORY, TO OTHER STATES' LAWS. 
IN EFFECT, WE ARE ASKED TO SACRIFICE THE INDIVIDUAL'S EXPECTATION OF
UNIFORM TREATMENT IN THE STATE OF HIS RESIDENCE FOR UNIFORMITY OF
APPLICATION OF THE EFFECT OF AN EXCHANGE'S RULES.  WE DECLINE TO DO SO
BECAUSE WE BELIEVE THAT CONGRESS INTENDED THAT THOSE ELEMENTS OF THE
OLD REGIME OF COMPLETE SELF-REGULATION, THAT IS, THOSE ELEMENTS NOT
RELATED TO THE FEDERAL OBJECTIVES, BE SUBJECT TO STATE LAW AND TO
ESTABLISHED CONFLICTS PRINCIPLES WHEN THEIR APPLICATION OUT OF STATE
COMES INTO CONTROVERSY.  AFTER ALL, A STOCK EXCHANGE IS ORGANIZED AS AN
ASSOCIATION IN ACCORDANCE WITH THE LAWS OF THE STATE OF ITS LOCATION. 
ANY ASSERTION OF EXTRATERRITORIAL JURISDICTION CONTENDS, OF COURSE,
WITH THE PUBLIC POLICY OF THE STATE IN WHICH THIS JURISDICTION IS
SOUGHT.  TO ASCRIBE MORE TO 6(C) WOULD BE CONTRARY TO THE CONGRESSIONAL
SCHEME AND TO WHAT MIGHT BE REGARDED AS COMMON SENSE. 

D. MR. JUSTICE BRENNAN HAS STATED: 

     "THE PRINCIPLE TO BE DERIVED FROM OUR DECISION IS THAT FEDERAL

  REGULATION OF A FIELD OF COMMERCE SHOULD NOT BE DEEMED PREEMPTIVE

  OF STATE REGULATORY POWER IN THE ABSENCE OF PERSUASIVE

  REASONS--EITHER THAT THE NATURE OF THE REGULATED SUBJECT MATTER

  PERMITS NO OTHER CONCLUSION, OR THAT THE CONGRESS HAS

  UNMISTAKABLY SO ORDAINED."  FLORIDA LIME & AVOCADO GROWERS, INC.

V. PAUL, 373 U.S. 132, 142 (1963). 

IN OTHER CONTEXTS, PRE-EMPTION HAS BEEN MEASURED BY WHETHER THE
STATE STATUTE FRUSTRATES ANY PART OF THE PURPOSE OF THE FEDERAL
LEGISLATION.  COLORADO ANTI-DISCRIMINATION COMM'N V. CONTINENTAL AIR
LINES, INC., 372 U.S. 714, 724 (1963); PEREZ V. CAMPBELL, 402 U.S. 637
(1971); RICE V. BOARD OF TRADE, 331 U.S. 247, 253 - 255 (1947).  AND
ONLY LAST TERM MR. JUSTICE DOUGLAS, IN SPEAKING FOR THE COURT, OBSERVED
THAT WHILE PRIOR CASES ON PRE-EMPTION "ARE NOT PRECISE GUIDELINES,"
BECAUSE "EACH CASE TURNS ON THE PECULIARITIES AND SPECIAL FEATURES OF
THE FEDERAL REGULATORY SCHEME IN QUESTION,"  IT IS WHERE THERE IS IN
EXISTENCE A PERVASIVE AND COMPREHENSIVE SCHEME OF FEDERAL REGULATION
THAT PRE-EMPTION FOLLOWS IN ORDER TO FULFILL THE FEDERAL STATUTORY
PURPOSES.  CITY OF BURBANK V. LOCKHEED AIR TERMINAL, INC., 411 U.S.
624, 638 - 639 (1973). 

IN THE AREA OF REGULATION THAT WE ARE CONSIDERING HERE, CALIFORNIA
HAS MANIFESTED A STRONG POLICY OF PROTECTING ITS WAGE EARNERS FROM WHAT
IT REGARDS AS UNDESIRABLE ECONOMIC PRESSURES AFFECTING THE EMPLOYMENT
RELATIONSHIP.  THIS POLICY PREVAILS IN THE ABSENCE OF INTERFERENCE WITH
THE FEDERAL REGULATORY SCHEME.  WE FIND NO SUCH INTERFERENCE AND WE
ALSO FIND IN THE STRUCTURE OF THE ACT AN INTENT ON THE PART OF CONGRESS
THAT STATE POLICIES IN THIS AREA SHOULD OPERATE VIGOROUSLY. 

E. IT IS SUGGESTED, FINALLY, THAT THE PETITIONER'S PROFIT-SHARING
PLAN OPERATED ON A NATIONAL LEVEL; THAT IT IS OPEN TO ALL ELIGIBLE
MERRILL LYNCH EMPLOYEES IN THE UNITED STATES; THAT THE EMPLOYMENT OF
RESPONDENT AND THE CLASS HE REPRESENTS IS INTERSTATE IN NATURE, AS IS
MERRILL LYNCH'S BUSINESS; AND THAT APPLICATION OF CALIFORNIA STATUTES
WOULD UNDULY BURDEN INTERSTATE COMMERCE. 

WHAT HAS BEEN SAID ABOVE PROVIDES THE ANSWER TO THIS ARGUMENT.  IT IS
IN LINE WITH THE PRINCIPLE, LONG ESTABLISHED, THAT THE NATIONAL
GOVERNMENT'S POWER, UNDER THE COMMERCE CLAUSE, TO REGULATE COMMERCE
DOES NOT EXCLUDE ALL STATE POWER OF REGULATION.  SOUTHERN PACIFIC CO.
V. ARIZONA, 325 U.S. 761, 766 - 767 (1945); BROTHERHOOD OF LOCOMOTIVE
FIREMEN & ENGINEMEN V. CHICAGO, R. I. & P. R. CO., 393 U.S. 129 (1968);
HURON PORTLAND CEMENT CO. V. DETROIT, 362 U.S. 440 (1960). 

THE JUDGMENT OF THE COURT OF APPEAL IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  "22.1 THE VALIDITY OF THE PLAN OR OF ANY OF THE PROVISIONS
THEREOF SHALL BE DETERMINED UNDER AND SHALL BE CONSTRUED ACCORDING TO
THE LAWS OF THE STATE OF NEW YORK." 

/2/  "RULE 345.  (A) NO MEMBER OR MEMBER ORGANIZATION SHALL 

"(1) PERMIT ANY PERSON TO PERFORM REGULARLY THE DUTIES CUSTOMARILY
PERFORMED BY A REGISTERED REPRESENTATIVE, UNLESS SUCH PERSON SHALL HAVE
BEEN REGISTERED WITH AND IS ACCEPTABLE TO THE EXCHANGE . . . ." 

/3/  PARAGRAPH 30(J) OF THE EXCHANGE FORM READS: 

"(J) I AGREE THAT ANY CONTROVERSY BETWEEN ME AND ANY . . . MEMBER
ORGANIZATION ARISING OUT OF MY EMPLOYMENT OR THE TERMINATION OF MY
EMPLOYMENT BY AND WITH SUCH . . . MEMBER ORGANIZATION SHALL BE SETTLED
BY ARBITRATION AT THE INSTANCE OF ANY SUCH PARTY IN ACCORDANCE WITH THE
CONSTITUTION AND RULES OF THE BOARD OF GOVERNORS OF THE NEW YORK STOCK
EXCHANGE." 

PARAGRAPH 30(D) OF THE SAME FORM READS IN PART: 

"(D) I HAVE READ THE CONSTITUTION AND RULES OF THE BOARD OF
GOVERNORS OF THE NEW YORK STOCK EXCHANGE AND, IF APPROVED, I HEREBY
PLEDGE MYSELF TO ABIDE BY THE CONSTITUTION AND RULES OF THE BOARD OF
GOVERNORS OF THE NEW YORK STOCK EXCHANGE AS THE SAME HAVE BEEN OR SHALL
BE FROM TIME TO TIME AMENDED, AND BY ALL RULES AND REGULATIONS ADOPTED
PURSUANT TO THE CONSTITUTION, AND BY ALL PRACTICES OF THE EXCHANGE. 

RULE 347(B) OF THE NEW YORK STOCK EXCHANGE, ADOPTED IN APRIL 1958,
PRIOR TO WARE'S EMPLOYMENT, PROVIDES: 

(B) ANY CONTROVERSY BETWEEN A REGISTERED REPRESENTATIVE AND ANY . .
. MEMBER ORGANIZATION ARISING OUT OF THE EMPLOYMENT OR TERMINATION OF
EMPLOYMENT OF SUCH REGISTERED REPRESENTATIVE BY AND WITH SUCH . . .
MEMBER ORGANIZATION SHALL BE SETTLED BY ARBITRATION, AT THE INSTANCE OF
ANY SUCH PARTY, IN ACCORDANCE WITH THE ARBITRATION PROCEDURE PRESCRIBED
ELSEWHERE IN THESE RULES."  IT IS THUS APPARENT THAT PARA 30(J) OF THE
FORM FOLLOWS THE LANGUAGE OF THE EXCHANGE'S RULE 347(B). 

/4/  "1281.2 ORDER TO ARBITRATE CONTROVERSY; PETITION; DETERMINATION
OF COURT "ON PETITION OF A PARTY TO AN ARBITRATION AGREEMENT ALLEGING
THE EXISTENCE OF A WRITTEN AGREEMENT TO ARBITRATE A CONTROVERSY AND
THAT A PARTY THERETO REFUSES TO ARBITRATE SUCH CONTROVERSY, THE COURT
SHALL ORDER THE PETITIONER AND THE RESPONDENT TO ARBITRATE THE
CONTROVERSY IF IT DETERMINES THAT AN AGREEMENT TO ARBITRATE THE
CONTROVERSY EXISTS, UNLESS IT DETERMINES THAT: 

"(A) THE RIGHT TO COMPEL ARBITRATION HAS BEEN WAIVED BY THE
PETITIONER; OR 

"(B) GROUNDS EXIST FOR THE REVOCATION OF THE AGREEMENT.  . . ." 

/5/  IN FRAME, DECIDED ONLY FIVE MONTHS EARLIER, THE SAME CALIFORNIA
COURT OF APPEAL REVERSED A TRAIL COURT'S ORDER DENYING ARBITRATION AND
THUS SEEMINGLY ARRIVED AT AN ULTIMATE RESULT OPPOSITE TO THAT REACHED
IN THE PRESENT CASE.  THE COURT HELD, 20 CAL. APP. 3D 668, 671 - 673,
97 CAL. RPTR.  811, 813 - 815, THAT FRAME (LIKE WARE) HAD MADE AN
AGREEMENT TO ARBITRATE; THAT THERE WAS NO BASIS FOR USING THE DOCTRINE
OF ADHESION TO AVOID ARBITRATION; THAT THE FORFEITURE PROVISION OF ART.
11.1 WAS INEFFECTIVE UNDER 16600; THAT THE AGREEMENT'S PROVISION THAT
NEW YORK LAW WAS TO APPLY "MUST NOT BE ALLOWED TO DEFEAT" THE POLICY OF
16600; THAT, HOWEVER, THE ENTIRE CONTRACT WAS NOT NECESSARILY UNLAWFUL;
AND THAT A "LATENT QUESTION EXISTS AS TO WHETHER THE AGREEMENTS OF THE
PARTIES MAY BE CONSTRUED AS APPLYING ONLY TO SUCH PERMISSIBLE SUBJECTS
OF RESTRAINT AS BREACHES OF CONFIDENCE AND MISAPPROPRIATION OF TRADE
SECRETS.  OTHER QUESTIONS MAY BE RAISED AS TO THE TIME AND
CIRCUMSTANCES OF RESPONDENT'S EMPLOYMENT AND THE AMOUNT OF ANY BENEFITS
EARNED AND REMAINING UNPAID.  ALL OF THESE MATTERS, WHETHER THEY
INVOLVE QUESTIONS OF LAW OR QUESTIONS OF FACT ARE IN THE FIRST INSTANCE
PROPERLY SUBJECT TO ARBITRATION."  20 CAL. APP. 3D, AT 673, 97 CAL.
RPTR., AT 815.  BUT NO MENTION WAS MADE IN FRAME OF 200 AND 229 OF THE
STATE'S LABOR CODE, SEE NN. 6 - 7, INFRA, AND, AS THE COURT LATER SAID
IN THIS CASE, 24 CAL. APP. 3D 35, 43, 100 CAL. RPTR.  791, 797, "THE
FRAME COURT DID NOT CONSIDER THE EFFECT OF SECTION 229 OF THE LABOR
CODE ON THE ARBITRATION AGREEMENT."  APPARENTLY, NEITHER SIDE IN FRAME
SOUGHT REVIEW BY THE CALIFORNIA SUPREME COURT. 

/6/  "200.  DEFINITIONS 

"AS USED IN THIS; (A) 'WAGES' INCLUDES ALL AMOUNTS FOR LABOR
PERFORMED BY EMPLOYEES OF EVERY DESCRIPTION, WHETHER THE AMOUNT IS
FIXED OR ASCERTAINED BY THE STANDARD OF TIME, TASK, PIECE, COMMISSION
BASIS, OR OTHER METHOD OF CALCULATION." 

/7/  "229.  ACTIONS TO ENFORCE PAYMENT OF WAGES; EFFECT ARBITRATION
AGREEMENTS 

"ACTIONS TO ENFORCE THE PROVISIONS OF THIS ARTICLE FOR THE
COLLECTION OF DUE AND UNPAID WAGES CLAIMED BY AN INDIVIDUAL MAY BE
MAINTAINED WITHOUT REGARD TO THE EXISTENCE OF ANY PRIVATE AGREEMENT TO
ARBITRATE.  THIS SECTION SHALL NOT APPLY TO CLAIMS INVOLVING ANY
DISPUTE CONCERNING THE INTERPRETATION OR APPLICATION OF ANY COLLECTIVE
BARGAINING AGREEMENT CONTAINING SUCH AN ARBITRATION AGREEMENT." 

1939, P. 4532. 

/8/  THIS APPROACH IS SUPPORTED BY DECISIONS EXTENDING BACK TO THE
TURN OF THE CENTURY.  FLORIDA LIME & AVOCADO GROWERS, INC. V. PAUL, 373
U.S. 132, 142 (1963); HURON PORTLAND CEMENT CO. V. CITY OF DETRIOT 362
U.S. 440 (1960); INTERNATIONAL ASSN. OF MACHINIST V. GONZALES, 356 U.S.
617 (1958); UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202 (1944); SAVAGE
V. JONES, 225 U.S. 501 (1912). 

/9/  THE FIRST ATTEMPT AT EXCHANGE REGULATION AROSE AFTER THE PANIC
OF 1907 WHEN, IN RESPONSE TO PUBLIC CONCERN OVER SPECULATION, PRESIDENT
THEODORE ROOSEVELT URGED CONGRESS TO TAKE ACTION.  42 CONG. REC. 1347,
1349 (1908).  NOTHING OF SIGNIFICANCE HAPPENED, HOWEVER, UNTIL AFTER
THE 1929 STOCK MARKET CRASH.  IT BECAME APPARENT THAT "TRANSACTIONS IN
SECURITIES AS COMMONLY CONDUCTED UPON SECURITIES EXCHANGES AND OVER-THE
COUNTER MARKETS ARE AFFECTED WITH A NATIONAL PUBLIC INTEREST WHICH
MAKES IT NECESSARY TO PROVIDE FOR REGULATION AND CONTROL OF SUCH
TRANSACTIONS AND OF PRACTICES AND MATTERS RELATED THERETO."  SECURITIES
EXCHANGE ACT OF 1934, 2, 15 U.S.C. 78B.  SELF-REGULATION WAS ADOPTED AS
A MEANS OF POLICING THE EXCHANGES.  THE TRADITION, AS HAS BEEN NOTED,
HAD BEEN ONE OF SELF-GOVERNANCE; THE FINANCIAL COMMUNITY WAS STRONGLY
OPPOSED TO GOVERNMENTAL CONTROL OF DAILY EXCHANGE BUSINESS; AND THE
TASK WAS DEEMED TO BE OF SUCH MAGNITUDE THAT GOVERNMENT SIMPLY COULD
NOT REGULATE EFFECTIVELY EVERY ASPECT OF THE INDUSTRY.  COMMENT, 48
MINN. L. REV. 597 - 598 (1964); 2 L. LOSS, SECURITIES REGULATION 1175 -
1176 (1961), AND 5 ID., AT 3138 - 3139 (1969). 

/10/  THE COMMISSION ALSO HAS BROAD RULEMAKING POWER UNDER THE ACT. 
SEE, FOR EXAMPLE, 8, 9, AND 11, 15 U.S.C. 78H 78I, AND 78K.  NO
QUESTION IS PRESENTED IN THIS CASE AS TO THE AUTHORITY OF THE
COMMISSION TO PROMULGATE RULES AFFECTING THE OPERATION OF STOCK
EXCHANGES. 

/11/  SECTION 1280 WAS REPEALED AND REPLACED IN 1961 TO MAKE THE
SAVINGS CLAUSE IN 1281 NOW READ, "SAVE UPON SUCH GROUNDS AS EXIST FOR
THE REVOCATION OF ANY CONTRACT."  CAL. STATS. 1961, C. 461, PP. 1540 -
1541.  1 AND 2. 

/12/  SEE CITATIONS FOLLOWING 16600 IN WEST'S ANN. CALIF. BUS.  &
PROF. CODE 41 ET SEQ. 

/13/  THE PHRASE "JUST AND EQUITABLE TRADE PRACTICES" WOULD BE
INAPPROPRIATELY USED TO JUSTIFY RULE 347(B).  THIS IS BECAUSE THE
STANDARD REFERS TO RULES ADOPTED PURSUANT TO 6(B) OF THE ACT, 15 U.S.C.
78FB), PROVIDING FOR THE EXPULSION, SUSPENSION, OR DISCIPLINING OF A
MEMBER "FOR CONDUCT OR PROCEEDING INCONSISTENT WITH JUST AND EQUITABLE
PRINCIPLES OF TRADE."  ARBITRATION IS NOT THE TYPE OF DISCIPLINARY RULE
THAT 6(B) CONTEMPLATES. 

/14/  AS NOTED ABOVE, SUPRA, AT 129, THE COMMISSION'S REVIEW POWER
OVER EXCHANGE RULES IS CIRCUMSCRIBED BY CERTAIN SUBJECT MATTER
LIMITATIONS EXPLICITLY ENUMERATED IN 19(B).  NONE OF THE SUBJECT MATTER
CATEGORIES SUGGESTS THAT THE COMMISSION HAS REVIEW AUTHORITY WITH
RESPECT TO A RULE REQUIRING ARBITRATION OF EMPLOYER-EMPLOYEE DISPUTES. 

/15/  THIS COURT AND OTHER FEDERAL COURTS, OF COURSE, HAVE ENDORSED
THE SUITABILITY OF ARBITRATION TO RESOLVE FEDERALLY CREATED RIGHTS. 
WILKO V. SWAN, 346 U.S. 427, 431 (1953); COENEN V. R. W. PRESSPRICH &
CO., 453 F.2D 1209 (CA2), CERT. DENIED, 406 U.S. 949 (1972).  SEE OTHER
CASES CITED BY MR JUSTICE WHITE IN HIS DISSENTING OPINION IN U.S. BULK
CARRIERS, INC. V. ARGUELLES, 400 U.S. 351, 374 - 375 (1971).  THESE
CASES, HOWEVER, CONCERN SITUATIONS WHERE A FEDERAL ACT ITSELF HAS
PROVIDED FOR ARBITRATION.  YET IN WILKO V. SWAN AN INVESTOR CUSTOMER'S
AGREEMENT TO ARBITRATE WAS HELD VOID UNDER 14 OF THE SECURITIES ACT OF
1933, 15 U.S.C. 77N, NOTWITHSTANDING THE PROVISIONS OF 3 OF THE
ARBITRATION ACT, 9 U.S.C. 3.  SEE PRIMA PAINT CORP. V. FLOOD & CONKLIN
MFG. CO., 388 U.S. 395 (1967). 

/16/  THE ACT CONTAINS OTHER PROVISIONS INDICATING THE INTENT OF
CONGRESS THAT STATE LAW CONTINUES TO APPLY WHERE THE ACT ITSELF DOES
NOT.  THUS, 28(A), 15 U.S.C. 78BBA), STATES THAT THE RIGHTS AND
REMEDIES PROVIDED BY THE ACT "SHALL BE IN ADDITION TO ANY AND ALL OTHER
RIGHTS AND REMEDIES THAT MAY EXIST AT LAW OR IN EQUITY."  IT FURTHER
PROVIDES THAT NOTHING IN THE ACT "SHALL BE CONSTRUED TO MODIFY EXISTING
LAW . . . WITH REGARD TO THE BINDING EFFECT . . . OF (EXCHANGE) ACTION
TAKEN . . . TO SETTLE DISPUTES BETWEEN ITS MEMBERS . . . ON ANY PERSON
WHO HAS AGREED TO BE BOUND THEREBY."     MR. JUSTICE STEWART TOOK NO
PART IN THE DECISION OF THIS CASE. 

WILLIAM H. ORRICK, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM
ON THE BRIEFS WAS W. REECE BADER. 

JOSEPH C. BARTON ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS THOMAS E. FEENEY.  /1/ 

/1/  SOLICITOR GENERAL BORK, GERALD P. NORTON, DAVID FERBER, AND
RICHARD E. NATHAN FILED A BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
URGING AFFIRMANCE. 
..END :















CUPP V. NAUGHTEN, 414 U.S. 141 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 72 - 1148.  ARGUED OCTOBER 16, 1973--DECIDED DECEMBER
4,

1973; 476 F.2D 845, REVERSED. 


    AT RESPONDENT'S OREGON CRIMINAL TRIAL, THE TRIAL JUDGE CHARGED,

  IN ACCORDANCE WITH A STATE STATUTORY PROVISION:  "EVERY WITNESS

  IS PRESUMED TO SPEAK THE TRUTH.  THIS PRESUMPTION MAY BE OVERCOME

  BY THE MANNER IN WHICH THE WITNESS TESTIFIES, BY THE NATURE OF

  HIS OR HER TESTIMONY, BY EVIDENCE AFFECTING HIS OR HER CHARACTER,

  INTEREST, OR MOTIVES, BY CONTRADICTORY EVIDENCE OR BY A

  PRESUMPTION."  RESPONDENT WAS CONVICTED AND, FOLLOWING EXHAUSTION

  OF HIS STATE REMEDIES, BROUGHT THIS FEDERAL HABEAS CORPUS

ACTION.  THE COURT OF APPEALS REVERSING THE DISTRICT COURT,

  CONCLUDED THAT THE "PRESUMPTION OF TRUTHFULNESS" INSTRUCTION

  PLACED THE BURDEN OF PROVING INNOCENCE UPON THE DEFENDANT AND

  THUS DID NOT COMPORT WITH DUE PROCESS.  HELD: THE INSTRUCTION

  CANNOT BE CONSIDERED IN ISOLATION AND WHEN VIEWED, AS IT MUST BE,

  IN THE CONTEXT OF THE OVERALL CHARGE, IN WHICH THE TRIAL COURT

  TWICE GAVE EXPLICIT INSTRUCTIONS AFFIRMING THE PRESUMPTION OF

  INNOCENCE AND DECLARING THE STATE'S OBLIGATION TO PROVE GUILT

  BEYOND A REASONABLE DOUBT, DID NOT SO INFECT THE ENTIRE TRIAL

  THAT THE RESULTING CONVICTION VIOLATED THE REQUIREMENTS OF THE

DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THE CHALLENGED

  INSTRUCTION HAVING NEITHER SHIFTED THE BURDEN OF PROOF TO THE

  DEFENDANT NOR NEGATED THE PRESUMPTION OF INNOCENCE ACCORDED UNDER

  STATE LAW.  IN RE WINSHIP, 397 U.S. 358, DISTINGUISHED.  PP. 144

  - 150. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  BRENNAN,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ.,
JOINED, POST, P. 150. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENT NAUGHTEN WAS TRIED IN AN OREGON STATE COURT FOR THE CRIME
OF ARMED ROBBERY.  THE STATE'S PRINCIPAL EVIDENCE CONSISTED OF
TESTIMONY BY THE OWNER OF THE GROCERY STORE THAT RESPONDENT HAD ROBBED
THE STORE AT GUNPOINT AND OF CORROBORATIVE TESTIMONY BY ANOTHER
EYEWITNESS.  IN ADDITION, TWO POLICE OFFICERS TESTIFIED THAT RESPONDENT
HAD BEEN FOUND NEAR THE SCENE OF THE ROBBERY AND THAT THE STOLEN MONEY
WAS LOCATED NEAR HIS CAR IN A NEIGHBORING PARKING LOT.  A FEW ITEMS OF
CLOTHING, IDENTIFIED AS BELONGING TO RESPONDENT, AND THE STOLEN MONEY
WERE ALSO INTRODUCED.  RESPONDENT NEITHER TOOK THE STAND HIMSELF NOR
CALLED ANY WITNESSES TO TESTIFY IN HIS BEHALF. 

THE TRIAL JUDGE CHARGED THE JURY THAT RESPONDENT WAS PRESUMED
INNOCENT "UNTIL GUILT IS PROVED BEYOND A REASONABLE DOUBT," AND THEN
CONTINUED: 

    "EVERY WITNESS IS PRESUMED TO SPEAK THE TRUTH.  THIS

  PRESUMPTION MAY BE OVERCOME BY THE MANNER IN WHICH THE WITNESS

  TESTIFIES, BY THE NATURE OF HIS OR HER TESTIMONY, BY EVIDENCE

  AFFECTING HIS OR HER CHARACTER, INTEREST, OR MOTIVES, BY

  CONTRADICTORY EVIDENCE, OR BY A PRESUMPTION."  APP. 16. 

THE TRIAL JUDGE ALSO INSTRUCTED THE JURY AS TO THE STATE'S BURDEN OF
PROOF, DEFINING IN DETAIL THE CONCEPT OF REASONABLE DOUBT; LATER, AT
THE RESPONDENT'S REQUEST, HE GAVE AN ADDITIONAL INSTRUCTION ON THE
PRESUMPTION OF INNOCENCE.  /1/  THE JURY RETURNED A VERDICT OF GUILTY,
AND RESPONDENT WAS SENTENCED TO A TERM IN THE STATE PENITENTIARY. 

THE OREGON COURT OF APPEALS AFFIRMED RESPONDENT'S CONVICTION,
FINDING THAT INCLUSION OF THE "PRESUMPTION OF TRUTHFULNESS" INSTRUCTION
IN THE JUDGE'S CHARGE TO THE JURY WAS NOT ERROR.  THE SUPREME COURT OF
OREGON DENIED A PETITION FOR REVIEW.  HIS STATE REMEDIES THUS
EXHAUSTED, RESPONDENT SOUGHT FEDERAL HABEAS CORPUS RELIEF IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, ASSERTING THAT THE
PRESUMPTION-OF-TRUTHFULNESS CHARGE SHIFTED THE STATE'S BURDEN TO PROVE
GUILT BEYOND A REASONABLE DOUBT AND FORCED RESPONDENT INSTEAD TO PROVE
HIS INNOCENCE.  THE DISTRICT COURT NOTED THAT SIMILAR INSTRUCTIONS HAD
MET WITH DISFAVOR IN THE FEDERAL COURTS OF APPEALS, BUT OBSERVED THAT
"(THOSE) CASES (DID) NOT INVOLVE APPEALS FROM STATE COURT
CONVICTIONS."  RECOGNIZING THAT THE INSTRUCTION WAS "PROPER UNDER
OREGON LAW," THE DISTRICT COURT STATED: 

"IN ANY EVENT, THE GIVING OF THE INSTRUCTION DID NOT DEPRIVE
PETITIONER OF A FEDERALLY PROTECTED CONSTITUTIONAL RIGHT."  /2/ 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED.  /3/  THAT
COURT, NOTING THAT THE INSTRUCTION IN QUESTION "HAS BEEN ALMOST
UNIVERSALLY CONDEMNED"  /4/  AND THAT NAUGHTEN HAD NOT TESTIFIED OR
CALLED WITNESSES IN HIS OWN BEHALF, WENT ON TO SAY: 

"THUS, THE CLEAR EFFECT OF THE CHALLENGED INSTRUCTION WAS TO PLACE
THE BURDEN ON NAUGHTEN TO PROVE HIS INNOCENCE.  THIS IS SO REPUGNANT TO
THE AMERICAN CONCEPT THAT IT IS OFFENSIVE TO ANY FAIR NOTION OF DUE
PROCESS OF LAW."  476 F.2D 845, 847. 

WE GRANTED CERTIORARI TO CONSIDER WHETHER THE GIVING OF THIS
INSTRUCTION IN A STATE CRIMINAL TRIAL SO OFFENDED ESTABLISHED NOTIONS
OF DUE PROCESS AS TO DEPRIVE THE RESPONDENT OF A CONSTITUTIONALLY FAIR
TRIAL. 

ALTHOUGH THE PRESUMPTION-OF-TRUTHFULNESS INSTRUCTION APPARENTLY
BECAME INCREASINGLY USED IN FEDERAL CRIMINAL PROSECUTIONS FOLLOWING THE
PUBLICATION OF JUDGE MATHES' JURY INSTRUCTIONS AND FORMS FOR FEDERAL
CRIMINAL CASES, 27 F.R.D. 39, 67 (1961), /5/  THE INSTRUCTION APPEARS
TO HAVE HAD QUITE AN INDEPENDENT ORIGIN IN OREGON PRACTICE.  THE
INSTRUCTION GIVEN IN NAUGHTEN'S TRIAL WAS DIRECTLY BASED ON 44.370 OF
THE OREGON REVISED STATUTES, A PROVISION FIRST PASSED IN 1862.  ONLY
FOUR YEARS AGO, THE OREGON SUPREME COURT UPHELD THE VALIDITY OF THE
INSTRUCTION AGAINST CONSTITUTIONAL ATTACK.  STATE V. KESSLER, 254 ORE. 
124, 458 P.2D 432 (1969).  AT THAT TIME THE COURT NOTED THE EXTENSIVE
CRITICISM OF SIMILAR INSTRUCTIONS IN THE FEDERAL COURTS OF APPEALS AND
THE POSSIBLE EFFECT OF SUCH INSTRUCTIONS ON THE PRESUMPTION OF
INNOCENCE.  NONETHELESS, THOUGH THE COURT STATED THAT "IT MIGHT BE
PREFERABLE NOT TO INSTRUCT THE JURY IN CRIMINAL CASES WHERE DEFENDANT
DOES NOT TAKE THE STAND THAT A WITNESS IS PRESUMED TO SPEAK THE TRUTH,"
IT CONCLUDED THAT THERE WAS NO ERROR IN GIVING THE INSTRUCTION "IF
ACCOMPANIED BY AN EXPLANATION OF HOW THE PRESUMPTION CAN BE OVERCOME." 
ID., AT 128, 458 P.2D, AT 435.  THE OREGON COURT OF APPEALS FOLLOWING
THAT HOLDING IN AFFIRMING RESPONDENT'S CONVICTION IN THIS CASE. 

THE CRITICISM OF THE INSTRUCTION BY THE FEDERAL COURTS HAS BEEN
BASED ON THE IDEA THAT THE INSTRUCTION MAY "DILUTE," "CONFLICT WITH,"
"SEEM TO COLLIDE WITH," OR "IMPINGE UPON" A CRIMINAL DEFENDANT'S
PRESUMPTION OF INNOCENCE; /6/  "CLASH WITH" OR "SHIFT" THE
PROSECUTION'S BURDEN OF PROOF; /7/  OR "INTERFERE" WITH OR "INVADE" THE
PROVINCE OF THE JURY TO DETERMINE CREDIBILITY.  /8/  IN FACT, IN SOME
CASES, THE COURTS OF APPEALS HAVE DETERMINED THAT A PRESUMPTION-OF
TRUTHFULNESS INSTRUCTION IS SO UNDESIRABLE THAT THE DEFENDANT MAY BE
ENTITLED TO A NEW TRIAL ON THAT GROUND ALONE.  /9/  A READING OF THESE
CASES, HOWEVER, INDICATES THAT THE COURTS OF APPEALS WERE PRIMARILY
CONCERNED WITH DIRECTING INFERIOR COURTS WITHIN THE SAME JURISDICTION
TO REFRAIN FROM GIVING THE INSTRUCTION BECAUSE IT WAS THOUGHT
CONFUSING, OF LITTLE POSITIVE VALUE TO THE JURY, OR SIMPLY
UNDESIRABLE.  THE APPELLATE COURTS WERE, IN EFFECT, EXERCISING THE SO
CALLED SUPERVISORY POWER OF AN APPELLATE COURT TO REVIEW PROCEEDINGS OF
TRIAL COURTS AND TO REVERSE JUDGMENTS OF SUCH COURTS WHICH THE
APPELLATE COURT CONCLUDES WERE WRONG. 

WITHIN SUCH A UNITARY JURISDICTIONAL FRAMEWORK THE APPELLATE COURT
WILL, OF COURSE, REQUIRE THE TRIAL COURT TO CONFORM TO CONSTITUTIONAL
MANDATES, BUT IT MAY LIKEWISE REQUIRE IT TO FOLLOW PROCEDURES DEEMED
DESIRABLE FROM THE VIEWPOINT OF SOUND JUDICIAL PRACTICE ALTHOUGH IN
NOWISE COMMANDED BY STATUTE OR BY THE CONSTITUTION.  THUS EVEN
SUBSTANTIAL UNANIMITY AMONG FEDERAL COURTS OF APPEALS THAT THE
INSTRUCTION IN QUESTION OUGHT NOT TO BE GIVEN IN UNITED STATES DISTRICT
COURTS WITHIN THEIR RESPECTIVE JURISDICTIONS IS NOT, WITHOUT MORE,
AUTHORITY FOR DECLARING THAT THE GIVING OF THE INSTRUCTION MAKES A
RESULTING CONVICTION INVALID UNDER THE FOURTEENTH AMENDMENT.  BEFORE A
FEDERAL COURT MAY OVERTURN A CONVICTION RESULTING FROM A STATE TRIAL IN
WHICH THIS INSTRUCTION WAS USED, IT MUST BE ESTABLISHED NOT MERELY THAT
THE INSTRUCTION IS UNDESIRABLE, ERRONEOUS, OR EVEN "UNIVERSALLY
CONDEMNED," BUT THAT IT VIOLATED SOME RIGHT WHICH WAS GUARANTEED TO THE
DEFENDANT BY THE FOURTEENTH AMENDMENT. 

IN DETERMINING THE EFFECT OF THIS INSTRUCTION ON THE VALIDITY OF
RESPONDENT'S CONVICTION, WE ACCEPT AT THE OUTSET THE WELL-ESTABLISHED
PROPOSITION THAT A SINGLE INSTRUCTION TO A JURY MAY NOT BE JUDGED IN
ARTIFICIAL ISOLATION, BUT MUST BE VIEWED IN THE CONTEXT OF THE OVERALL
CHARGE.  BOYD V. UNITED STATES, 271 U.S. 104, 107 (1926).  WHILE THIS
DOES NOT MEAN THAT AN INSTRUCTION BY ITSELF MAY NEVER RISE TO THE LEVEL
OF CONSTITUTIONAL ERROR, SEE COOL V. UNITED STATES, 409 U.S. 100
(1972), IT DOES RECOGNIZE THAT A JUDGMENT OF CONVICTION IS COMMONLY THE
CULMINATION OF A TRIAL WHICH INCLUDES TESTIMONY OF WITNESSES, ARGUMENT
OF COUNSEL, RECEIPT OF EXHIBITS IN EVIDENCE, AND INSTRUCTION OF THE
JURY BY THE JUDGE.  THUS NOT ONLY IS THE CHALLENGED INSTRUCTION BUT ONE
OF MANY SUCH INSTRUCTIONS, BUT THE PROCESS OF INSTRUCTION ITSELF IS BUT
ONE OF SEVERAL COMPONENTS OF THE TRIAL WHICH MAY RESULT IN THE JUDGMENT
OF CONVICTION. 

THE COURT OF APPEALS IN THIS CASE STATED THAT THE EFFECT OF THE
INSTRUCTION WAS TO PLACE THE BURDEN ON RESPONDENT TO PROVE HIS
INNOCENCE.  BUT THE TRIAL COURT GAVE, NOT ONCE BUT TWICE, EXPLICIT
INSTRUCTIONS AFFIRMING THE PRESUMPTION OF INNOCENCE AND DECLARING THE
OBLIGATION OF THE STATE TO PROVE GUILT BEYOND A REASONABLE DOUBT.  THE
COURT OF APPEALS, RECOGNIZING THAT THESE OTHER INSTRUCTIONS HAD BEEN
GIVEN, NEVERTHELESS DECLARED THAT "THERE WAS NO INSTRUCTION SO
SPECIFICALLY DIRECTED TO THAT UNDER ATTACK AS CAN BE SAID TO HAVE
EFFECTED A CURE."  476 F.2D, AT 847.  BUT WE BELIEVE THIS ANALYSIS PUTS
THE CART BEFORE THE HORSE; THE QUESTION IS NOT WHETHER THE TRIAL COURT
FAILED TO ISOLATE AND CURE A PARTICULAR AILING INSTRUCTION, BUT RATHER
WHETHER THE AILING INSTRUCTION BY ITSELF SO INFECTED THE ENTIRE TRIAL
THAT THE RESULTING CONVICTION VIOLATES DUE PROCESS. 

THIS COURT HAS RECENTLY HELD THAT THE DUE PROCESS CLAUSE REQUIRES
THE STATE IN CRIMINAL PROSECUTIONS TO PROVE GUILT BEYOND A REASONABLE
DOUBT.  IN RE WINSHIP, 397 U.S. 358 (1970).  IN THAT CASE THE JUDGE,
PRESIDING OVER THE TRIAL OF A JUVENILE CHARGED WITH STEALING $112 FROM
A WOMAN'S POCKETBOOK, SPECIFICALLY FOUND THAT THE EVIDENCE WAS
SUFFICIENT TO CONVICT UNDER A "PREPONDERANCE OF THE EVIDENCE" STANDARD
BUT INSUFFICIENT TO CONVICT UNDER A "BEYOND A REASONABLE DOUBT"
STANDARD.  ID., AT 360 AND N. 2.  SINCE THE JUDGE FOUND THAT A NEW YORK
STATUTE COMPELLED EVALUATION UNDER THE MORE LENIENT STANDARD, THE
DEFENDANT WAS FOUND GUILTY.  THIS COURT REVERSED, STATING THAT "(THE
REASONABLE-DOUBT STANDARD PLAYS A VITAL ROLE IN THE AMERICAN SCHEME OF
CRIMINAL PROCEDURE," ID., AT 363, AND HOLDING EXPLICITLY "THAT THE DUE
PROCESS CLAUSE PROTECTS THE ACCUSED AGAINST CONVICTION EXCEPT UPON
PROOF BEYOND A REASONABLE DOUBT OF EVERY FACT NECESSARY TO CONSTITUTE
THE CRIME WITH WHICH HE IS CHARGED."  ID., AT 364. 

WE IMPLY NO RETREAT FROM THE DOCTRINE OF WINSHIP WHEN WE OBSERVE
THAT IT WAS A DIFFERENT CASE FROM THAT BEFORE US NOW.  THERE THE TRIAL
JUDGE MADE AN EXPRESS FINDING THAT THE STATE WAS NOT REQUIRED TO PROVE
GUILT BEYOND A REASONABLE DOUBT; IN THIS CASE THE STATE'S BURDEN OF
PROOF WAS EMPHASIZED AND RE-EMPHASIZED IN THE COURSE OF THE COMPLETE
JURY INSTRUCTIONS.  RESPONDENT NEVERTHELESS CONTENDS THAT, DESPITE THE
BURDEN OF PROOF AND REASONABLE-DOUBT INSTRUCTIONS GIVEN BY THE TRIAL
COURT, THE CHARGE AS TO PRESUMPTION OF TRUTHFULNESS IMPLIEDLY PLACED
THE BURDEN OF PROOF ON HIM.  WE DO NOT AGREE. 

CERTAINLY THE INSTRUCTION BY ITS LANGUAGE NEITHER SHIFTS THE BURDEN
OF PROOF NOR NEGATES THE PRESUMPTION OF INNOCENCE ACCORDED UNDER OREGON
LAW.  IT WOULD BE POSSIBLE PERHAPS AS A MATTER OF ABSTRACT LOGIC TO
CONTEND THAT ANY INSTRUCTION SUGGESTING THAT THE JURY SHOULD BELIEVE
THE TESTIMONY OF A WITNESS MIGHT IN SOME TANGENTIAL RESPECT "IMPINGE"
UPON THE RIGHT OF THE DEFENDANT TO HAVE HIS GUILT PROVED BEYOND A
REASONABLE DOUBT.  BUT INSTRUCTIONS BEARING ON THE BURDEN OF PROOF,
JUST AS THOSE BEARING ON THE WEIGHT TO BE ACCORDED DIFFERENT TYPES OF
TESTIMONY AND OTHER FAMILIAR SUBJECTS OF JURY INSTRUCTIONS, ARE IN ONE
WAY OR ANOTHER DESIGNED TO GET THE JURY OFF DEAD CENTER AND TO GIVE IT
SOME GUIDANCE BY WHICH TO EVALUATE THE FREQUENTLY CONFUSING AND
CONFLICTING TESTIMONY WHICH IT HAS HEARD.  THE WELL-RECOGNIZED AND LONG
ESTABLISHED FUNCTION OF THE TRIAL JUDGE TO ASSIST THE JURY BY SUCH
INSTRUCTIONS IS NOT EMASCULATED BY SUCH ABSTRACT AND CONJECTURAL
EMANATIONS FROM WINSHIP. 

IT MUST BE REMEMBERED THAT "REVIEW BY THIS COURT OF STATE ACTION
EXPRESSING ITS NOTION OF WHAT WILL BEST FURTHER ITS OWN SECURITY IN THE
ADMINISTRATION OF CRIMINAL JUSTICE DEMANDS APPROPRIATE RESPECT FOR THE
DELIBERATIVE JUDGMENT OF A STATE IN SO BASIC AN EXERCISE OF ITS
JURISDICTION."  MCNABB V. UNITED STATES, 318 U.S. 332, 340 (1943).  IN
THIS CASE, WHILE THE JURY WAS INFORMED ABOUT THE PRESUMPTION OF
TRUTHFULNESS, IT WAS ALSO SPECIFICALLY INSTRUCTED TO CONSIDER THE
MANNER OF THE WITNESS, THE NATURE OF THE TESTIMONY, AND ANY OTHER
MATTER RELATING TO THE WITNESS' POSSIBLE MOTIVATION TO SPEAK FALSELY. 
IT THUS REMAINED FREE TO EXERCISE ITS COLLECTIVE JUDGMENT TO REJECT
WHAT IT DID NOT FIND TRUSTWORTHY OR PLAUSIBLE.  FURTHERMORE, BY
ACKNOWLEDGING THAT A WITNESS COULD BE DISCREDITED BY HIS OWN MANNER OR
WORDS, THE INSTRUCTION FREED RESPONDENT FROM ANY UNDUE PRESSURE TO TAKE
THE WITNESS STAND HIMSELF OR TO CALL WITNESSES UNDER THE BELIEF THAT
ONLY POSITIVE TESTIMONY COULD ENGENDER DISBELIEF OF THE STATE'S
WITNESSES. 

THE JURY HERE WAS CHARGED FULLY AND EXPLICITLY ABOUT THE PRESUMPTION
OF INNOCENCE AND THE STATE'S DUTY TO PROVE GUILT BEYOND A REASONABLE
DOUBT.  WHATEVER TANGENTIAL UNDERCUTTING OF THESE CLEARLY STATED
PROPOSITIONS MAY, AS A THEORETICAL MATTER, HAVE RESULTED FROM THE
GIVING OF THE INSTRUCTION ON THE PRESUMPTION OF TRUTHFULNESS IS NOT OF
CONSTITUTIONAL DIMENSION.  THE GIVING OF THAT INSTRUCTION, WHETHER
JUDGED IN TERMS OF THE REASONABLE-DOUBT REQUIREMENT IN RE WINSHIP,
SUPRA, OR OF OFFENSE AGAINST "SOME PRINCIPLE OF JUSTICE SO ROOTED IN
THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS
FUNDAMENTAL," SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105 (1934), DID NOT
RENDER THE CONVICTION CONSTITUTIONALLY INVALID. 

              REVERSED. 

/1/  THE JUDGE ALSO INSTRUCTED THE JURY THAT RESPONDENT DID NOT HAVE
TO TESTIFY AND THAT THE JURY WAS TO DRAW NO INFERENCE OF GUILT FROM HIS
FAILURE TO DO SO. 

/2/  ALTERNATIVELY, THE DISTRICT COURT HELD THAT ASSUMING THERE HAD
BEEN ERROR OF CONSTITUTIONAL PROPORTIONS IN THE CHARGE, THE ERROR WAS
HARMLESS IN VIEW OF THE OVERWHELMING EVIDENCE OF GUILT.  HARRINGTON V.
CALIFORNIA, 395 U.S. 250 (1969).  THE COURT OF APPEALS, WITHOUT
DETAILING ITS REASONING, DISAGREED, STATING THAT THE STATE HAD NOT MET
ITS BURDEN OF SHOWING THAT THE ERROR WAS HARMLESS.  IN VIEW OF OUR
DISPOSITION OF THIS CASE, WE DO NOT REACH THAT ISSUE.     /3/  476 F.2D
845, 846 (1972).  THE COURT THEN DENIED A PETITION FOR REHEARING BY AN
EQUALLY DIVIDED VOTE. 

/4/  THE COURT CITED NINE CASES FROM VARIOUS FEDERAL COURTS OF
APPEALS, ALL OF WHICH HAD EXPRESSED DISAPPROVAL OF THE PRESUMPTION-OF
TRUTHFULNESS INSTRUCTION.  SEE UNITED STATES V. BIRMINGHAM, 447 F.2D
1313 (CA10 1971); UNITED STATES V. STROBLE, 431 F.2D 1273 (CA6 1970);
MCMILLEN V. UNITED STATES, 386 F.2D 29 (CA1 1967), CERT. DENIED; 390
U.S. 1031; UNITED STATES V. DICHIARINTE, 385 F.2D 333 (CA7 1967);
UNITED STATES V. JOHNSON, 371 F.2D 800 (CA3 1967); UNITED STATES V.
PERSICO, 349 F.2D 6 (CA2 1965).  SEE ALSO UNITED STATES V. SAFLEY, 408
F.2D 603 (CA4 1969); HARRISON V. UNITED STATES, 387 F.2D 614 (CA5
1968); STONE V. UNITED STATES, 126 U.S. APP. D.C. 369, 379 F.2D 146
(1967) (BURGER, J.).  NONE OF THESE CASES, HOWEVER, DEALT WITH REVIEW
OF A STATE COURT PROCEEDING. 

/5/  JUDGE MATHES' ORIGINAL INSTRUCTION WAS MODIFIED IN W. MATHES &
E. DEVITT, FEDERAL JURY PRACTICE AND INSTRUCTIONS 9.01 (1965), AND IS
NOT INCLUDED IN E. DEVITT & C. BLACKMAR, FEDERAL JURY PRACTICE AND
INSTRUCTIONS (2D ED. 1970).  SEE ID., VOL. 1, 12.01, AND ACCOMPANYING
NOTE. 

/6/  SEE, E.G., UNITED STATES V. JOHNSON, SUPRA, AT 804; UNITED
STATES V. STROBLE, SUPRA, AT 1278; UNITED STATES V. DICHIARINTE, SUPRA,
AT 339; STONE V. UNITED STATES, SUPRA, AT 370, 379 F.2D, AT 147. 

/7/  SEE, E.G., UNITED STATES V. MEISCH, 370 F.2D 768, 774 (CA3
1966); UNITED STATES V. BIRMINGHAM, 447 F.2D AT 1315. 

/8/  SEE, E.G., UNITED STATES V. STROBLE, SUPRA; UNITED STATES V.
BIRMINGHAM, SUPRA. 

/9/  SEE, E.G., UNITED STATES V. BIRMINGHAM, SUPRA.  HOWEVER THE
INSTRUCTION GIVEN IN BIRMINGHAM WAS SOMEWHAT DIFFERENT FROM THE
INSTRUCTION GIVEN HERE.  THE JURY THERE WAS TOLD THAT THE PRESUMPTION
OF TRUTHFULNESS CONTROLLED "(UNLESS AND UNTIL OUTWEIGHED BY EVIDENCE TO
THE CONTRARY."  ID., AT 1315.  APPARENTLY NO ADDITIONAL INSTRUCTION WAS
GIVEN REGARDING CONSIDERATION OF THE MANNER OR NATURE OF THE WITNESSES'
TESTIMONY OF OR THE WITNESSES' POSSIBLE MOTIVATIONS TO SPEAK FALSELY. 
SEE ALSO JOHNSON, SUPRA. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

RESPONDENT WAS FOUND GUILTY OF ARMED ROBBERY AND ASSAULT, AFTER THE
JURY HAD BEEN CHARGED, IN PERTINENT PART, AS FOLLOWS: 

     "THE LAW PROVIDES FOR CERTAIN DISPUTABLE PRESUMPTIONS WHICH
ARE

  TO BE CONSIDERED AS EVIDENCE. 

    "A PRESUMPTION IS A DEDUCTION WHICH THE LAW EXPRESSLY DIRECTS

  TO BE MADE FROM PARTICULAR FACTS AND IS TO BE CONSIDERED BY YOU

  ALONG WITH THE OTHER EVIDENCE.  HOWEVER, SINCE THESE PRESUMPTIONS

  ARE DISPUTABLE PRESUMPTIONS ONLY, THEY MAY BE OUT-WEIGHED OR

  EQUALED BY OTHER EVIDENCE.  UNLESS OUT-WEIGHED OR EQUALED,

  HOWEVER, THEY ARE TO BE ACCEPTED BY YOU AS TRUE. 

     "THE LAW PRESUMES THAT THE DEFENDANT IS INNOCENT, AND THIS

  PRESUMPTION FOLLOWS THE DEFENDANT UNTIL GUILT IS PROVED BEYOND A

  REASONABLE DOUBT. 

     "EVERY WITNESS IS PRESUMED TO SPEAK THE TRUTH.  THIS

  PRESUMPTION MAY BE OVERCOME BY THE MANNER IN WHICH THE WITNESS

  TESTIFIES, BY THE NATURE OF HIS OR HER TESTIMONY, BY EVIDENCE

  AFFECTING HIS OR HER CHARACTER, INTEREST, OR MOTIVES, BY

  CONTRADICTORY EVIDENCE, OR BY A PRESUMPTION. 

     "BURDEN OF PROOF.  THE BURDEN IS UPON THE STATE TO PROVE THE

  GUILT OF THE DEFENDANT BEYOND A REASONABLE DOUBT."  (EMPHASIS

  ADDED.) 

A TIMELY OBJECTION WAS TAKEN TO THE PART INSTRUCTING UPON THE
PRESUMPTION OF TRUTHFULNESS.  IN MY VIEW THE CHARGE PERMITTED THE JURY
TO CONVICT EVEN THOUGH THE EVIDENCE MAY HAVE FAILED TO ESTABLISH
RESPONDENT'S GUILT BEYOND A REASONABLE DOUBT, AND THEREFORE DENIED
RESPONDENT DUE PROCESS OF LAW. 

THE CHARGE DIRECTED THE JURY TO FIND THAT THE STATE'S WITNESSES HAD
SPOKEN THE TRUTH, UNLESS THE PRESUMPTION OF TRUTHFULNESS WERE
"OVERCOME" BY DEMEANOR, IMPEACHMENT, OR CONTRADICTORY EVIDENCE.  THIS
INSTRUCTION FOLLOWED AN EARLIER INSTRUCTION THAT A PRESUMPTION COULD BE
REBUTTED BY OTHER EVIDENCE WHICH "OUT-WEIGHED OR EQUALED" THE
PRESUMPTION, BUT THAT OTHERWISE "THE LAW EXPRESSLY DIRECTED)" THAT A
FINDING BE MADE IN ACCORDANCE WITH THE PRESUMPTION.  CONSIDERED
TOGETHER, THESE INSTRUCTIONS CLEARLY REQUIRED THE JURY TO BELIEVE A
WITNESS' TESTIMONY UNTIL HIS OR HER UNTRUTHFULNESS HAD BEEN
DEMONSTRATED BY EVIDENCE MAKING IT APPEAR AS LIKELY AS NOT THAT THE
TESTIMONY WAS FALSE.  /1/  SINCE THE STATE'S CASE RESTED ALMOST
ENTIRELY UPON THE TESTIMONY OF TWO EYEWITNESSES AND TWO POLICE
OFFICERS, SEE ANTE, AT 142, AND SINCE RESPONDENT NEITHER CALLED
WITNESSES NOR TOOK THE STAND HIMSELF, THE PRACTICAL EFFECT OF THE
COURT'S INSTRUCTIONS WAS TO CONVERT THE STATE'S BURDEN OF PROVING GUILT
BEYOND A REASONABLE DOUBT TO PROVING GUILT BY A PREPONDERANCE OF THE
EVIDENCE.  /2/ 

THE REDUCTION OF THE PROSECUTION'S BURDEN OF PERSUASION TO A
PREPONDERANCE CLEARLY CONFLICTS WITH THE DUE PROCESS CLAUSE GUARANTEE
THAT AN ACCUSED SHALL NOT BE CONVICTED "EXCEPT UPON PROOF BEYOND A
REASONABLE DOUBT OF EVERY FACT NECESSARY TO CONSTITUTE THE CRIME WITH
WHICH HE IS CHARGED."  IN RE WINSHIP, 397 U.S. 358, 364 (1970).  IN
COOL V. UNITED STATES, 409 U.S. 100 (1972), WE HELD THAT AN
"UNACCEPTABLE RISK" EXISTED THAT THE JURY MIGHT HAVE UNDERSTOOD AN
INSTRUCTION--THAT CERTAIN DEFENSE TESTIMONY COULD PROPERLY BE
CONSIDERED IF FOUND TO BE TRUE BEYOND A REASONABLE DOUBT--AS REQUIRING
THAT THE DEFENSE TESTIMONY BE CONSIDERED ONLY IF BELIEVED BEYOND A
REASONABLE DOUBT.  ID., AT 102 N. 3.  OVER A DISSENT WHICH ASSERTED
THAT THE COURT WAS PARSING INSTRUCTIONS AND ENGAGING IN SEMANTICAL
DISTINCTIONS WITHOUT CONSIDERING THE COURT'S CHARGE TO THE JURY AS A
WHOLE, ID., AT 107 - 108, THE INSTRUCTION WAS FOUND "FUNDAMENTALLY
INCONSISTENT" WITH OUR WINSHIP DECISION, SINCE A POSSIBILITY EXISTED
THAT EXCULPATORY TESTIMONY--THAT WOULD HAVE CREATED A REASONABLE DOUBT
IN THE MINDS OF THE JURORS--HAD BEEN REJECTED BECAUSE NOT BELIEVABLE
BEYOND A REASONABLE DOUBT.  ID., AT 104.  THUS, THE EVIL IN COOL WAS
THE UNACCEPTABLE RISK THAT JURORS WOULD UNDERSTAND THE INSTRUCTION TO
REQUIRE THAT DEFENSE TESTIMONY BE REJECTED OUT OF HAND WHICH, IF
CONSIDERED, MIGHT HAVE GIVEN RISE TO A REASONABLE DOUBT ABOUT THE
DEFENDANT'S GUILT.  RESPONDENT SUFFERED NO LESS A CONSTITUTIONAL
DEPRIVATION WHEN, IN UNEQUIVOCAL TERMS, THE JURY WAS INSTRUCTED TO
ACCEPT THE STATEMENTS OF PROSECUTION WITNESSES AS TRUE EVEN THOUGH THE
JURORS MIGHT HAVE ENTERTAINED SUBSTANTIAL AND REASONABLE DOUBTS ABOUT
THE VERACITY OF THE TESTIMONY--BUT NOT SUFFICIENT TO CONCLUDE THAT IT
WAS AS LIKELY AS NOT THAT THE TESTIMONY WAS FALSE. 

MOREOVER, THE PRESUMPTION-OF-TRUTHFULNESS INSTRUCTION ITSELF IS
CONSTITUTIONALLY DEFECTIVE.  IN TURNER V. UNITED STATES, 393 U.S. 398
(1970), WE APPROVED AN INFERENCE OF "KNOWLEDGE" FROM THE FACT OF
POSSESSING SMUGGLED HEROIN, BECAUSE "'(COMMON SENSE" . . . TELLS US
THAT THOSE WHO TRAFFIC IN HEROIN WILL INEVITABLY BECOME AWARE THAT THE
PRODUCT THEY DEAL IN IS SMUGGLED,"  ID., AT 417; AT THE SAME TIME, WE
REJECTED THE PRESUMPTION THAT POSSESSION OF UNSTAMPED COCAINE WAS PRIMA
FACIE EVIDENCE THAT THE DRUG WAS NOT PURCHASED IN OR FROM THE ORIGINAL
STAMPED CONTAINER, BECAUSE A "REASONABLE POSSIBILITY"  EXISTED THAT THE
DEFENDANT "STOLE THE COCAINE HIMSELF OR OBTAINED IT FROM A STAMPED
PACKAGE IN POSSESSION OF THE ACTUAL THIEF."  ID., AT 423 - 424
(EMPHASIS ADDED).  IN THE INSTANT CASE, COMMON SENSE DOES NOT DICTATE
THAT A PROSECUTION WITNESS WHO HAS SWORN OR AFFIRMED TO TELL THE TRUTH
WILL INEVITABLY DO SO, AND THERE IS SURELY A REASONABLE POSSIBILITY
THAT HE WILL FAIL TO DO SO.  /3/  SINCE HERE NO DEFENSE WITNESSES WERE
CALLED, THE PRACTICAL EFFECT OF THE PRESUMPTION OF TRUTHFULNESS WAS TO
PERMIT THE JURY TO FIND EACH AND EVERY ELEMENT OF THE CRIMES CHARGED
WITHOUT REQUIRING THAT THE ELEMENTS BE PROVED BEYOND A REASONABLE
DOUBT.  THE PRESUMPTION ITSELF THUS VIOLATES THE MANDATE OF WINSHIP
THAT "EVERY FACT NECESSARY TO CONSTITUTE THE CRIME" BE PROVED BEYOND A
REASONABLE DOUBT.  SEE BARNES V. UNITED STATES, 412 U.S. 837, 854
(1973) (BRENNAN, J., DISSENTING). 

VIEWED IN THE CONTEXT OF THE OVERALL CHARGE TO THE JURY, THE
INSTRUCTIONS WERE NO LESS OBJECTIONABLE.  TO BE SURE--AS HAD BEEN THE
CASE IN COOL--THE JURORS WERE INSTRUCTED THAT GUILT MUST BE PROVED
BEYOND A REASONABLE DOUBT.  HOWEVER, THEY WERE ALSO DIRECTED IN EFFECT
TO IGNORE CERTAIN DOUBTS THEY MIGHT HAVE ENTERTAINED CONCERNING THE
CREDIBILITY OF THE PROSECUTION'S WITNESSES.  HAD THE INSTRUCTIONS
CONCERNING THE REASONABLE-DOUBT STANDARD NECESSARILY CONTRADICTED THE
INSTRUCTIONS DEALING WITH THE BURDEN OF PROOF NEEDED TO OVERCOME THE
TRUTHFULNESS PRESUMPTION, THE CONSTITUTIONAL OBJECTION MIGHT HAVE BEEN
DISSIPATED.  BUT THERE IS, IN MY VIEW, AN "UNACCEPTABLE RISK"  THAT THE
JURY UNDERSTOOD THE INSTRUCTIONS UNAMBIGUOUSLY TO REQUIRE THAT THEY PUT
TO ONE SIDE CERTAIN DOUBTS ABOUT THE CREDIBILITY OF THE TESTIMONY THEY
HAD HEARD AND ONLY THEN DETERMINE WHETHER THE EVIDENCE SUPPORTED A
FINDING OF GUILT BEYOND A REASONABLE DOUBT.  /4/  I THEREFORE CONCLUDE
THAT THE INSTRUCTIONS ARE CONSTITUTIONALLY INFIRM. 

IN THIS CIRCUMSTANCE, THE CONSTITUTIONAL ERROR INHERING IN THE
INSTRUCTION CANNOT PROPERLY BE VIEWED AS HARMLESS BEYOND A REASONABLE
DOUBT.  SEE CHAPMAN V. CALIFORNIA, 386 U.S. 18, 24 (1967).  THE
REASONABLE-DOUBT STANDARD REDUCES THE RISK THAT AN ERROR IN FACTFINDING
COULD DEPRIVE AN INNOCENT MAN OF HIS GOOD NAME AND FREEDOM.  SEE IN RE
WINSHIP, SUPRA, AT 363 - 364.  IT ALSO IMPRESSES THE JURORS WITH THEIR
SOLEMN RESPONSIBILITY TO AVOID BEING MISLED BY SUSPICION, CONJECTURE,
OR MERE APPEARANCE, AND TO ARRIVE AT A STATE OF CERTAINTY CONCERNING
THE PROPER RESOLUTION OF THE RELEVANT FACTUAL ISSUES.  HERE, THE TRUTH
FINDING FUNCTION OF THE JURY WAS INVADED AND THE STATE'S BURDEN OF
PROVING GUILT BEYOND A REASONABLE DOUBT WAS DIMINISHED.  WHEN THE
REASONABLE-DOUBT STANDARD HAS BEEN THUS COMPROMISED, IT CANNOT BE SAID
BEYOND DOUBT THAT THE ERROR "MADE NO CONTRIBUTION TO A CRIMINAL
CONVICTION."  HARRINGTON V. CALIFORNIA, 395 U.S. 250, 255 (1969)
(DISSENTING OPINION).  RATHER, SUCH AN ERROR SO CONFLICTS WITH AN
ACCUSED'S RIGHT TO A FAIR TRIAL THAT THE "INFRACTION CAN NEVER BE
TREATED AS HARMLESS ERROR."  CHAPMAN V. CALIFORNIA, SUPRA, AT 23. 

/1/  DUE TO THE STRUCTURING OF THE INSTRUCTIONS IT IS CONCEIVABLE
THAT THE JURORS WOULD HAVE UNDERSTOOD THAT, SINCE THE PRESUMPTION OF
INNOCENCE COULD BE OVERCOME ONLY BY PROOF OF GUILT BEYOND A REASONABLE
DOUBT, THE PRESUMPTION OF TRUTHFULNESS COULD LIKEWISE BE OVERCOME ONLY
BY EVIDENCE OF UNTRUTHFULNESS BEYOND A REASONABLE DOUBT.  IF THE
INSTRUCTIONS WERE IN FACT UNDERSTOOD IN THIS MANNER, THE ENSUING
ARGUMENTS CONCERNING THE UNCONSTITUTIONALITY OF THE INSTRUCTIONS WOULD
FOLLOW A FORTIORI. 

/2/  THE COURTS OF APPEALS IN EVERY CIRCUIT HAVE DISAPPROVED OF
PRESUMPTION-OF-TRUTHFULNESS INSTRUCTIONS AND HAVE OFTEN EXPRESSED THEIR
OBJECTIONS IN TERMS OF CONSTITUTIONAL VALUES.  SEE MCMILLEN V. UNITED
STATES, 386 F.2D 29 (CA1 1967); UNITED STATES V. BILOTTI, 380 F.2D 649
(CA2 1967); UNITED STATES V. EVANS, 398 F.2D 159 (CA3 1968); UNITED
STATES V. SAFLEY, 408 F.2D 603 (CA4 1969); UNITED STATES V. REID, 469
F.2D 1904 (CA5 1972); UNITED STATES V. STROBLE, 431 F.2D 1273 (CA6
1970); UNITED STATES V. DICHIARINTE, 385 F.2D 333 (CA7 1967); UNITED
STATES V. GRAY, 464 F.2D 632 (CA8 1972); THE INSTANT CASE, NAUGHTEN V.
CUPP, 476 F.2D 845 (CA9 1972); UNITED STATES V. BIRMINGHAM, 447 F.2D
1313 (CA10 1971); STONE V. UNITED STATES, 126 U.S. APP. D.C. 369, 379
F.2D 146 (1967).  BUT THE COURTS HAVE BEEN PARTICULARLY CONCERNED ABOUT
THE IMPACT THAT SUCH INSTRUCTIONS MIGHT HAVE WHEN THE DEFENDANT HAS NOT
OFFERED TESTIMONY.  SEE UNITED STATES V. SAFLEY, SUPRA, AT 605; UNITED
STATES V. BOONE, 401 F.2D 659, 661 (CA3 1968); UNITED STATES V. EVANS,
SUPRA, AT 162; UNITED STATES V. DICHIARINTE, SUPRA, AT 339; STONE V.
UNITED STATES, SUPRA, AT 370, 379 F.2D, AT 147; UNITED STATES V.
JOHNSON, 371 F.2D 800, 805 (CA3 1967); UNITED STATES V. MEISCH, 370
F.2D 768, 774 (CA3 1966).  HOWEVER, EVEN IN A SITUATION WHERE THE
DEFENDANT HAS INTRODUCED REBUTTAL TESTIMONY, THE IMPACT OF THE
PRESUMPTION ON THE PARTIES WILL BE IMPONDERABLE AND NOT NECESSARILY
EQUAL.  SEE MCMILLEN V. UNITED STATES, SUPRA, AT 33. 

/3/  THE ORIGINS OF THE PRESUMPTION THAT WITNESSES WILL TESTIFY
TRUTHFULLY APPEAR TO EXTEND BACK AT LEAST INTO THE 19TH CENTURY, SEE
ANTE, AT 144 - 145, WHEN IT WAS A WIDELY HELD BELIEF THAT A WILLFUL
VIOLATION OF THE OATH WOULD EXPOSE THE WITNESS "AT ONCE TO TEMPORAL AND
TO ETERNAL PUNISHMENT."  T. STARKIE, LAW OF EVIDENCE 29 (10TH AM. ED.
1876).  IN ADDITION, AT THAT TIME MANY OF THE COMMON-LAW RULES OF
INCOMPETENCY WERE APPLIED TO DISQUALIFY INDIVIDUALS FROM TESTIFYING FOR
REASONS WHICH TODAY WOULD MERELY BE GROUNDS FOR IMPEACHMENT.  SEE
GENERALLY 9 W.HOLDSWORTH, HISTORY OF ENGLISH LAW 177 - 197 (1926); C.
MCCORMICK, EVIDENCE, C.7 (2D ED. 1972).  SINCE THAT TIME, THE RATIONALE
UNDERLYING THE PRESUMPTION HAS BEEN SUBSTANTIALLY UNDERCUT. 

/4/  THE MAJORITY'S RELIANCE ON BOYD V. UNITED STATES, 271 U.S. 104
(1926), ANTE, AT 146 - 147, IS MISPLACED.  THERE IT WAS FOUND THAT AN
"AMBIGUOUS" STATEMENT IN THE CHARGE IN A CRIMINAL CASE WAS LIKELY
UNDERSTOOD IN ITS HARMLESS SENSE BECAUSE OF ADDITIONAL CURATIVE
INSTRUCTIONS.  ID., AT 107.  THE DISPUTED INSTRUCTION, EVEN IF
ERRONEOUS, CONCERNED A QUESTION OF LAW UNDER THE HARRISON ANTI-NARCOTIC
ACT NOT OF CONSTITUTIONAL DIMENSION, AND THE COURT RELIED ON THE FACT
THAT A PROPER OBJECTION HAD NOT BEEN TAKEN TO THE CHARGE.  SEE ID., AT
107 - 108.     JOHN W. OSBURN, SOLICITOR GENERAL OF OREGON, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE LEE JOHNSON, ATTORNEY
GENERAL, AND THOMAS H. DENNEY AND JOHN H. CLOUGH, ASSISTANT ATTORNEYS
GENERAL. 

ROSS R. RUNKEL, BY APPOINTMENT OF THE COURT, 412 U.S. 904, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :








CHICAGO MERCANTILE EXCHANGE V. DEAKTOR ET AL. 414 U.S. 113 


       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SEVENTH CIRCUIT

        NO. 73 - 241.  DECIDED DECEMBER 3, 1973; CERTIORARI
GRANTED;

           479 F.2D 529, REVERSED AND REMANDED. 


    TWO SUITS WERE BROUGHT CHARGING PETITIONER, THE CHICAGO

  MERCANTILE EXCHANGE, WITH INTER ALIA, VIOLATING THE COMMODITY

  EXCHANGE ACT (CEA) AND FAILURE TO ENFORCE ITS OWN RULES.  THE

  DISTRICT COURT REFUSED PETITIONER'S APPLICATIONS FOR STAYS OF THE

  SUITS TO PERMIT THE COMMODITIES EXCHANGE COMMISSION TO DETERMINE

  INITIALLY WHETHER THE CHALLANGED ACTIONS COMPORTED WITH THE CEA

  AND PETITIONER'S RULES.  THE COURT OF APPEALS AFFIRMED.  HELD:

  THE COMMISSION, WHOSE ADMINISTRATIVE FUNCTIONS APPEAR TO

  ENCOMPASS ADJUDICATION OF THE FIRST INSTANCE.  RICCI V. CHICAGO

MERCANTILE EXCHANGE, 409 U.S. 289. 

PER CURIAM. 

THE PETITIONER, CHICAGO MERCANTILE EXCHANGE, WAS SUED IN TWO
SEPARATE ACTIONS IN THE DISTRICT COURT.  IN ONE, THE PHILLIPS SUIT, IT
WAS ALLEGED THAT THE EXCHANGE HAD FORCED SALES OF FUTURES CONTRACTS IN
MARCH 1970 FRESH EGGS AT ARTIFICIALLY DEPRESSED MARKET PRICES AND HAD
THEREBY MONOPOLIZED AND RESTRAINED COMMERCE IN VIOLATION OF 1 AND 2 OF
THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. 1, 2, AND HAD
VIOLATED 9(B) OF THE COMMODITY EXCHANGE ACT (CEA), AS AMENDED, 82 STAT.
33, 7 U.S.C. 13(B), BY MANIPULATING PRICES OF A COMMODITY FOR FUTURE
DELIVERY ON A CONTRACT MARKET.  THE EXCHANGE WAS ALSO ACCUSED OF
VIOLATING 5A OF THE CEA, 7 U.S.C 7A(8), FOR FAILURE TO ENFORCE ONE OF
ITS OWN RULES.  IN THE SECOND SUIT, THE DEAKTOR CASE, THE EXCHANGE WAS
CHARGED WITH VIOLATING THE CEA AND ITS OWN RULES AS A DESIGNATED
CONTRACT MARKET BECAUSE IT HAD FAILED TO EXERCISE DUE CARE TO HALT THE
MANIPULATIVE CONDUCT OF CERTAIN OF ITS MEMBERS WHO ALLEGEDLY HAD
CORNERED THE JULY 1970 MARKET IN FROZEN PORK BELLIES FUTURES
CONTRACTS. 

THE EXCHANGE DEFENDED BOTH ACTIONS ON THE GROUND THAT IT WAS
FAITHFULLY DISCHARGING ITS STATUTORY DUTY OF SELF-REGULATION.  IT
ASSERTED THAT ITS CHALLENGED ACTS IN THE PHILLIPS CASE WERE MEASURES
TAKEN TO PREVENT SPECULATION IN FUTURES CONTRACTS AND AS SUCH WERE NOT
IN VIOLATION OF THE CEA.  RATHER, THEY WERE AUTHORIZED AND REQUIRED BY
THE STATURE AND HENCE CANNOT BE CONSIDERED WITHIN THE REACH OF THE
ANTITRUST LAWS.  LIKEWISE, IN THE DEAKTOR SUIT, THE EXCHANGE CLAIMED
THAT IT HAD TAKEN ALL PROPER AND REASONABLE STEPS TO PERFORM ITS
STATUTORY RESPONSIBILITY TO PREVENT MANIPULATION. 

THE EXCHANGE FURTHER URGED THAT BECAUSE THE COMMODITY EXCHANGE
COMMISSION HAD JURISDICTION TO DETERMINE WHETHER THE EXCHANGE WAS
VIOLATING THE CEA OR ITS OWN RULES AND TO IMPOSE SANCTIONS FOR ANY SUCH
OFFENSE, BOTH SUITS SHOULD BE STAYED TO PERMIT THE COMMISSION EXCHANGE
UNDER SCRUTINY WERE IN DISCHARGE OF ITS PROPER DUTIES UNDER THE CEA AND
ITS REGULATIONS.  THE DISTRICT COURT REFUSED THE STAY, AND THE COURT OF
APPEALS AFFIRMED.  DEAKTOR V. L. D. SCHRIEBER & CO., 479 F.2D 529 (CA7
1973).  BOTH COURTS WERE IN ERROR. 

RICCI V. CHICAGO MERCANTILE EXCHANGE, 409 U.S. 289 (1973), HELD THAT
AN ANTITRUST ACTION AGAINST THE EXCHANGE SHOULD HAVE BEEN STAYED TO
AFFORD THE COMMODITY EXCHANGE COMMISSION AN OPPORTUNITY TO DETERMINE IF
THE CHALLENGED CONDUCT OF THE EXCHANGE WAS IN COMPLIANCE WITH THE
STATUTE AND WITH EXCHANGE RULES.  BECAUSE ADMINISTRATIVE ADJUDICATION
OF ALLEGED VIOLATIONS OF THE CEA AND THE RULES LAY AT THE HEART OF THE
TASK ASSIGNED THE COMMISSION BY CONGRESS, WE RECOGNIZED THAT THE COURT,
ALTHOUGH RETAINING FINAL AUTHORITY TO INTERPRET THE CEA AND ITS
RELATIONSHIP TO THE ANTITRUST LAWS, SHOULD AVAIL ITSELF OF THE
ABILITIES OF THE COMMISSION TO UNRAVEL THE INTRICATE AND TECHNICAL
FACTS OF THE COMMODITY INDUSTRY AND TO ARRIVE AT SOME JUDGMENT AS TO
WHETHER THE EXCHANGE HAD CONDUCTED ITSELF IN COMPLIANCE WITH THE LAW. 
AN ADJUDICATION BY THE COMMISSION THAT THE ACTIONS OF THE EXCHANGE WERE
AUTHORIZED OR REQUIRED BY THE CEA WOULD NOT NECESSARILY DISPOSE OF THE
QUESTION OF IMMUNITY FROM ANTITRUST LIABILITY.  WE NEVERTHELESS THOUGHT
THE CONSIDERED VIEW OF THE COMMISSION WOULD BE SUFFICIENT AID TO THE
COURT THAT THE ACTION SHOULD NOT GO FORWARD WITHOUT MAKING REASONABLE
EFFORTS TO INVOKE THE JURISDICTION OF THE COMMISSION.  ID., AT 305 -
306.  AS WE DID IN RICCI, 

"WE SIMPLY RECOGNIZE THAT CONGRESS HAS ESTABLISHED A SPECIALIZED
AGENCY THAT WOULD DETERMINE EITHER THAT A . . . RULE OF THE EXCHANGE
HAS BEEN VIOLATED OR THAT IT HAS BEEN FOLLOWED.  EITHER JUDGMENT WOULD
REQUIRE DETERMINATION OF FACTS AND THE INTERPRETATION AND APPLICATION
OF THE ACT AND EXCHANGE RULES.  AND EITHER DETERMINATION WILL BE OF
GREAT HELP TO THE ANTITRUST COURT IN ARRIVING AT THE ESSENTIAL
ACCOMMODATION BETWEEN THE ANTITRUST AND THE REGULATORY REGIME . . . ." 
ID., AT 307. 

IN OUR JUDGMENT, THE COURT OF APPEALS, AS IN RICCI, SHOULD HAVE
REQUESTED THE DISTRICT COURT TO STAY THE PROCEEDINGS IN THE PHILLIPS
CASE TO AFFORD AN OPPORTUNITY TO INVOKE THE JURISDICTION OF THE
COMMISSION.  FOR VERY SIMILAR REASONS, THE DEAKTOR PLAINTIFFS, WHO ALSO
ALLEGED VIOLATIONS OF THE CEA AND THE RULES OF THE EXCHANGE, SHOULD BE
ROUTED IN THE FIRST INSTANCE TO THE AGENCY WHOSE ADMINISTRATIVE
FUNCTIONS APPEAR TO ENCOMPASS ADJUDICATION OF THE KIND OF SUBSTANTIVE
CLAIMS MADE AGAINST THE EXCHANGE IN THIS CASE. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED, AND THE CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

    SO ORDERED. 

MR JUSTICE STEWART DISSENTS.  HE WOULD AFFIRM THE JUDGMENT
SUBSTANTIALLY UPON THE REASONING OF JUDGE CASTLE'S CONCURRING OPINION
IN THE COURT OF APPEALS.  479 F.2D 529, 535. 
..END :






















DEPARTMENT OF GAME OF WASHINGTON V. PUYALLUP TRIBE ET AL. 414 U.S.
44 


       CERTIORARI TO THE SUPREME COURT OF WASHINGTON

     NO. 72 - 481.  ARGUED OCTOBER 10, 1973--DECIDED NOVEMBER 19,

           1973; /1/  80 WASH.2D 561, 497 P.2D 171, REVERSED AND

           REMANDED. 

/1/  TOGETHER WITH NO. 72-746, PUYALLUP TRIBE V. DEPARTMENT OF GAME
OF WASHINGTON, ALSO ON CERTIORARI TO THE SAME COURT. 


    COMMERCIAL NET FISHING BY PUYALLUP INDIANS, FOR WHICH THE

  INDIANS HAVE TREATY PROTECTION, PUYALLUP TRIBE V. DEPT. OF GAME,

  391 U.S. 392, FORECLOSES THE BAR AGAINST NET FISHING OF STEELHEAD

  TROUT IMPOSED BY WASHINGTON STATE GAME DEPARTMENT'S REGULATION,

  WHICH DISCRIMINATES AGAINST THE PUYALLUPS, AND AS LONG AS

  STEELHEAD FISHING IS PERMITTED, THE REGULATION MUST ACHIEVE AN

  ACCOMMODATION BETWEEN THE PUYALLUPS' NET-FISHING RIGHTS AND THE

  RIGHTS OF SPORTS FISHERMEN.  PP. 45 - 49. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  WHITE,
J., FILED A CONCURRING OPINION, IN WHICH BURGER, C.J., AND STEWART, J.,
JOINED, POST, P. 49. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1963 THE DEPARTMENT OF GAME AND THE DEPARTMENT OF FISHERIES OF THE
STATE OF WASHINGTON BROUGHT THIS ACTION AGAINST THE PUYALLUP TRIBE AND
SOME OF ITS MEMBERS, CLAIMING THEY WERE SUBJECT TO THE STATE'S LAWS
THAT PROHIBITED NET FISHING AT THEIR USUAL AND ACCUSTOMED PLACES AND
SEEKING TO ENJOIN THEM FROM VIOLATING THE STATE'S FISHING REGULATIONS. 
THE SUPREME COURT OF THE STATE HELD THAT THE TRIBE HAD PROTECTED
FISHING RIGHTS UNDER THE TREATY OF MEDICINE CREEK AND THAT A MEMBER WHO
WAS FISHING AT A USUAL AND ACCUSTOMED FISHING PLACE OF THE TRIBE MAY
NOT BE RESTRAINED OR ENJOINED FROM DOING SO UNLESS HE IS VIOLATING A
STATE STATUTE OR REGULATION "WHICH HAS BEEN ESTABLISHED TO BE
REASONABLE AND NECESSARY FOR THE CONSERVATION OF THE FISHERY."  70
WASH.2D 245, 262, 422 P.2D 754, 764. 

ON REVIEW OF THAT DECISION WE HELD THAT, AS PROVIDED IN THE TREATY
OF MEDICINE CREEK, THE "'RIGHT OF TAKING FISH, AT ALL USUAL AND
ACCUSTOMED GROUNDS AND STATIONS (WHICH) IS . . . SECURED TO SAID
INDIANS, IN COMMON WITH ALL CITIZENS OF THE TERRITORY'" EXTENDS TO OFF
RESERVATION FISHING BUT THAT "THE MANNER OF FISHING, THE SIZE OF THE
TAKE, THE RESTRICTION OF COMMERCIAL FISHING, AND THE LIKE MAY BE
REGULATED BY THE STATE IN THE INTEREST OF CONSERVATION, PROVIDED THE
REGULATION MEETS APPROPRIATE STANDARDS AND DOES NOT DISCRIMINATE
AGAINST THE INDIANS."  391 U.S. 392, 395, 398.  WE FOUND THE STATE
COURT DECISION HAD NOT CLEARLY RESOLVED THE QUESTION WHETHER BARRING
THE "USE OF SET NETS IN FRESH WATER STREAMS OR AT THEIR MOUTHS" BY ALL,
INCLUDING INDIANS, AND ALLOWING FISHING ONLY BY HOOK AND LINE IN THESE
AREAS WAS A REASONABLE AND NECESSARY CONSERVATION MEASURE.  THE CASE
WAS REMANDED FOR DETERMINATION OF THAT QUESTION AND ALSO "THE ISSUE OF
EQUAL PROTECTION IMPLICIT IN THE PHRASE 'IN COMMON WITH'" AS USED IN
THE TREATY.  ID., AT 400, 403. 

IN WASHINGTON THE DEPARTMENT OF FISHERIES DEALS WITH SALMON FISHING,
WHILE STEELHEAD TROUT ARE UNDER THE JURISDICTION OF THE DEPARTMENT OF
GAME.  ON OUR REMAND THE DEPARTMENT OF FISHERIES CHANGED ITS REGULATION
TO ALLOW INDIAN NET FISHING FOR SALMON IN THE PUYALLUP RIVER (BUT NOT
IN THE BAY OR IN THE SPAWNING AREAS OF THE RIVER).  THE DEPARTMENT OF
GAME, HOWEVER, CONTINUED ITS TOTAL PROHIBITION OF NET FISHING FOR
STEELHEAD TROUT.  THE SUPREME COURT OF WASHINGTON UPHELD THE
REGULATIONS IMPOSED BY THE DEPARTMENT OF FISHERIES WHICH, AS NOTED,
WERE APPLICABLE TO SALMON; AND NO PARTY HAS BROUGHT THAT RULING BACK
HERE FOR REVIEW.  THE SOLE QUESTION TENDERED IN THE PRESENT CASES
CONCERNS THE REGULATIONS OF THE DEPARTMENT OF GAME CONCERNING STEELHEAD
TROUT.  WE GRANTED THE PETITIONS FOR CERTIORARI.  410 U.S. 981. 

THE SUPREME COURT OF WASHINGTON, WHILE UPHOLDING THE REGULATIONS OF
THE DEPARTMENT OF GAME PROHIBITING FISHING BY NET FOR STEELHEAD IN
1970, 80 WASH.2D 561, 497 P.2D 171, HELD (1) THAT NEW FISHING
REGULATIONS FOR THE TRIBE MUST BE MADE EACH YEAR, SUPPORTED BY "FACTS
AND DATA THAT SHOW THE REGULATION IS NECESSARY FOR THE CONSERVATION" OF
THE STEELHEAD, ID., AT 576, 497 P.2D, AT 180; (2) THAT THE PROHIBITION
OF NET FISHING FOR STEELHEAD WAS PROPER BECAUSE "THE CATCH OF THE
STEELHEAD SPORTS FISHERY ALONE IN THE PUYALLUP RIVER LEAVES NO MORE
THAN A SUFFICIENT NUMBER OF STEELHEAD FOR ESCAPEMENT NECESSARY FOR THE
CONSERVATION OF THE STEELHEAD FISHERY IN THAT RIVER."  ID., AT 573, 497
P.2D, AT 178 - 179. 

THE BAN ON ALL NET FISHING IN THE PUYALLUP RIVER FOR STEELHEAD /1/
GRANTS IN EFFECT THE ENTIRE RUN TO THE SPORTS FISHERMEN.  WHETHER THAT
AMOUNTS TO DISCRIMINATION UNDER THE TREATY IS THE CENTRAL QUESTION IN
THESE CASES. 

WE KNOW FROM THE RECORD AND ORAL ARGUMENT THAT THE PRESENT RUN OF
STEELHEAD TROUT IS MADE POSSIBLE BY THE PLANTING OF YOUNG STEELHEAD
TROUT CALLED SMOLT AND THAT THE PLANTING PROGRAM IS FINANCED IN LARGE
PART BY THE LICENSE FEES PAID BY THE SPORTS FISHERMEN.  THE WASHINGTON
SUPREME COURT SAID: 

     "MR. CLIFFORD J. MILLENBACH), CHIEF OF THE FISHERIES
MANAGEMENT

  DIVISION OF THE DEPARTMENT OF GAME, TESTIFIED THAT THE RUN OF

  STEELHEAD IN THE PUYALLUP RIVER DRAINAGE IS BETWEEN 16,000 AND

  18,000 FISH ANNUALLY; THAT APPROXIMATELY 5,000 TO 6,000 ARE

  NATIVE RUN WHICH IS THE MAXIMUM THE PUYALLUP SYSTEM WILL PRODUCE

  EVEN IF UNDISTURBED; THAT APPROXIMATELY 10,000 ARE PRODUCED BY

  THE ANNUAL HATCHERY PLANT OF 100,000 SMOLT; THAT SMOLT, SMALL

STEELHEAD FROM 6 TO 9 INCHES IN LENGTH, ARE RELEASED IN APRIL,

  AND MAKE THEIR WAY TO THE SEA ABOUT THE FIRST OF AUGUST; THAT

  DURING THIS TIME ALL FISHING IS CLOSED TO PERMIT THEIR

  ESCAPEMENT; THAT THE ENTIRE COST OF THE HATCHERY SMOLT PLANT,

  EXCLUSIVE OF SOME FEDERAL FUNDS, IS FINANCED FROM LICENSE FEES

  PAID BY SPORTS FISHERMEN.  THE RECORD FURTHER SHOWS THAT 61 PER

  CENT OF THE ENTIRE SPORTS CATCH ON THE RIVER IS FROM

  HATCHERY-PLANTED STEELHEAD; THAT THE CATCH OF STEELHEAD BY THE

  SPORTS FISHERY, AS DETERMINED FROM 'CARD COUNT' RECEIVED FROM THE

  LICENSED SPORTS FISHERMEN, IS AROUND 12,000 TO 14,000 ANNUALLY;

  /2/  THAT THE ESCAPEMENT REQUIRED FOR ADEQUATE HATCHERY NEEDS AND

SPAWNING IS 25 PER CENT TO 50 PER CENT OF THE RUN; THAT THE

  STEELHEAD FISHERY CANNOT THEREFORE WITHSTAND A COMMERCIAL FISHERY

  ON THE PUYALLUP RIVER."  ID., AT 572, 497 P.2D, AT 178. 

AT ORAL ARGUMENT COUNSEL FOR THE DEPARTMENT OF GAME REPRESENTED THE
CATCH OF STEELHEAD THAT WERE DEVELOPED FROM THE HATCHERY PROGRAM WAS IN
ONE YEAR 60% OF THE TOTAL RUN AND IN ANOTHER 80%.  AND HE STATED THAT
APPROXIMATELY 80% OF THE COST OF THAT PROGRAM WAS FINANCED BY THE
LICENSE FEES OF SPORTS FISHERMEN.  WHETHER THAT ISSUE WILL EMERGE IN
THIS ONGOING LITIGATION AS A BASIS FOR ALLOCATING THE CATCH BETWEEN THE
TWO GROUPS, WE DO NOT KNOW.  WE MENTION IT ONLY TO RESERVE DECISION ON
IT. 

AT ISSUE PRESENTLY IS THE PROBLEM OF ACCOMMODATING NET FISHING BY
THE PUYALLUPS WITH CONSERVATION NEEDS OF THE RIVER.  OUR PRIOR DECISION
RECOGNIZED THAT NET FISHING BY THESE INDIANS FOR COMMERCIAL PURPOSES
WAS COVERED BY THE TREATY.  391 U.S., AT 398 - 399.  WE SAID THAT "THE
MANNER OF FISHING, THE SIZE OF THE TAKE, THE RESTRICTION OF COMMERCIAL
FISHING, AND THE LIKE MAY BE REGULATED BY THE STATE IN THE INTEREST OF
CONSERVATION, PROVIDED THE REGULATION.  . . DOES NOT DISCRIMINATE
AGAINST THE INDIANS."  ID., AT 398.  THERE IS DISCRIMINATION HERE
BECAUSE ALL INDIAN NET FISHING IS BARRED AND ONLY HOOK-AND-LINE FISHING
ENTIRELY PRE-EMPTED BY NON-INDIANS, IS ALLOWED. 

ONLY AN EXPERT COULD FAIRLY ESTIMATE WHAT DEGREE OF NET FISHING PLUS
FISHING BY HOOK AND LINE WOULD ALLOW THE ESCAPEMENT OF FISH NECESSARY
FOR PERPETUATION OF THE SPECIES.  IF HOOK-AND-LINE FISHERMEN NOW CATCH
ALL THE STEELHEAD WHICH CAN BE CAUGHT WITHIN THE LIMITS NEEDED FOR
ESCAPEMENT, THEN THAT NUMBER MUST IN SOME MANNER BE FAIRLY APPORTIONED
BETWEEN INDIAN NET FISHING AND NON-INDIAN SPORTS FISHING SO FAR AS THAT
PARTICULAR SPECIES IS CONCERNED.  WHAT FORMULA SHOULD BE EMPLOYED IS
NOT FOR US TO PROPOSE.  THERE ARE MANY VARIABLES--THE NUMBER OF NETS,
THE NUMBER OF STEELHEAD THAT CAN BE CAUGHT WITH NETS, THE PLACES WHERE
NETS CAN BE LOCATED, THE LENGTH OF THE NET SEASON, THE FREQUENCY DURING
THE SEASON WHEN NETS MAY BE USED.  ON THE OTHER SIDE ARE THE NUMBER OF
HOOK-AND-LINE LICENSES THAT ARE ISSUABLE, THE LIMITS OF THE CATCH OF
EACH SPORTS FISHERMAN, THE DURATION OF THE SEASON FOR SPORTS FISHING,
AND THE LIKE. 

THE AIM IS TO ACCOMMODATE THE RIGHTS OF INDIANS UNDER THE TREATY AND
THE RIGHTS OF OTHER PEOPLE. 

WE DO NOT IMPLY THAT THESE FISHING RIGHTS PERSIST DOWN TO THE VERY
LAST STEELHEAD IN THE RIVER.  RIGHTS CAN BE CONTROLLED BY THE NEED TO
CONSERVE A SPECIES; AND THE TIME MAY COME WHEN THE LIFE OF A STEELHEAD
IS SO PRECARIOUS IN A PARTICULAR STREAM THAT ALL FISHING SHOULD BE
BANNED UNTIL THE SPECIES REGAINS ASSURANCE OF SURVIVAL.  THE POLICE
POWER OF THE STATE IS ADEQUATE TO PREVENT THE STEELHEAD FROM FOLLOWING
THE FATE OF THE PASSENGER PIGEON; AND THE TREATY DOES NOT GIVE THE
INDIANS A FEDERAL RIGHT TO PURSUE THE LAST LIVING STEELHEAD UNTIL IT
ENTERS THEIR NETS. 

WE REVERSE THE JUDGMENT BELOW INSOFAR AS IT TREATS THE STEELHEAD
PROBLEM AND REMAND THE CASES FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

SO ORDERED. 

/1/  "ANNUAL CATCH LIMIT--STEELHEAD ONLY:  THIRTY STEELHEAD OVER 20
INCHES IN LENGTH . . . . "  1970 GAME FISH SEASONS AND CATCH LIMITS 3
(DEPT. OF GAME).  (CITED AT 80 WASH.2D 561, 572, 497 P.2D 171, 178.) 

/2/  THE WASHINGTON SUPREME COURT NOTED "THAT SUBSTANTIALLY ALL THE
STEELHEAD FISHERY OCCURS AFTER THEIR ENTRANCE INTO THE RESPECTIVE
RIVERS TO WHICH THEY RETURN."  80 WASH.2D, AT 575, 497 P.2D, AT 180. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
STEWART JOIN, CONCURRING. 

I AGREE THAT, CONSISTENTLY WITH THE TREATY, COMMERCIAL FISHING BY
INDIANS CANNOT BE TOTALLY FORBIDDEN IN ORDER TO PERMIT SPORTS FISHING
IN THE USUAL VOLUME.  ON THE OTHER HAND, THE TREATY DOES NOT OBLIGATE
THE STATE OF WASHINGTON TO SUBSIDIZE THE INDIAN FISHERY WITH PLANTED
FISH PAID FOR BY SPORTS FISHERMEN.  THE OPINION BELOW, AS I UNDERSTAND
IT, INDICATES THAT THE RIVER, LEFT TO ITS OWN DEVICES, WOULD HAVE AN
ANNUAL RUN OF 5,000 OR 6,000 STEELHEAD.  IT IS ONLY TO THIS RUN THAT
INDIAN TREATY RIGHTS EXTEND.  MOREOVER, IF THERE WERE NO SPORTS FISHING
AND NO STATE-PLANTED STEELHEAD, AND IF THE STATE, AS THE COURT SAID IT
COULD WHEN THIS CASE WAS HERE BEFORE, MAY RESTRICT COMMERCIAL FISHING
IN THE INTEREST OF CONSERVATION, THE INDIAN FISHERY CANNOT TAKE SO MANY
FISH THAT THE NATURAL RUN WOULD SUFFER PROGRESSIVE DEPLETION.  BECAUSE
THE COURT'S OPINION APPEARS TO LEAVE ROOM FOR THIS APPROACH AND FOR
SUBSTANTIAL, BUT FAIR, LIMITS ON THE INDIAN COMMERCIAL FISHERY, I AM
CONTENT TO CONCUR. 

JOSEPH L. CONIFF, JR., ASSISTANT ATTORNEY GENERAL OF WASHINGTON,
ARGUED THE CAUSE FOR PETITIONER IN NO. 72 - 481 AND FOR RESPONDENT IN
NO. 72 - 746.  WITH HIM ON THE BRIEF WAS SLADE GORTON, ATTORNEY
GENERAL. 

HARRY R. SACHSE ARGUED THE CAUSE FOR RESPONDENTS IN NO. 72 - 481 AND
FOR PETITIONER IN NO. 72 - 746.  WITH HIM ON THE BRIEF WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL JOHNSON, DEPUTY SOLICITOR
GENERAL WALLACE, EDMUND B. CLARK, AND GLEN R. GOODSELL.  CHARLES A.
HOBBS FILED A BRIEF FOR THE NATIONAL CONGRESS OF AMERICAN INDIANS,
INC., ET AL. AS AMICI CURIAE URGING REVERSAL IN NO. 72 - 746.  BRIEFS
OF AMICI CURIAE IN BOTH CASES WERE FILED BY JAMES B. HOVIS FOR THE
CONFEDERATED BANDS AND TRIBES OF THE YAKIMA INDIAN NATION, AND BY DAVID
H. GETCHES FOR RAMONA C. BENNETT ET AL.
..END :









KUSPER ET AL. V. PONTIKES 414 U.S. 51 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS 

NO. 71 - 1631.  ARGUED OCTOBER 9, 1973--DECIDED NOVEMBER 19, 1973;
345 F.SUPP.  1104, AFFIRMED. 


    APPELLEE, A QUALIFIED CHICAGO VOTER WHO VOTED IN A FEBRUARY

  1971 REPUBLICAN PRIMARY INVOLVING NOMINATIONS FOR MUNICIPAL

  OFFICERS, CHALLENGES THE CONSTITUTIONALITY OF ^ 7 - 43(D) OF THE

  ILLINOIS ELECTION CODE, UNDER WHICH SHE WAS BARRED FROM VOTING IN

  A MARCH 1972 DEMOCRATIC PRIMARY.  SECTION 7 - 43(D) PROHIBITS A

  PERSON FROM VOTING IN THE PRIMARY ELECTION OF A POLITICAL PARTY

  IF HE HAS VOTED IN THE PRIMARY OF ANY OTHER PARTY WITHIN THE

  PRECEDING 23 MONTHS, AN EXCEPTION BEING MADE IF THE PRIMARY IS OF

 A "POLITICAL PARTY WITHIN A CITY . . . ONLY."  APPELLANTS

  CONTENDED, INTER ALIA, THAT THE THREE-JUDGE DISTRICT COURT, WHICH

  HELD THE STATUTE INVALID, SHOULD HAVE ABSTAINED BECAUSE THE STATE

  COURTS MIGHT HAVE FOUND THE STATUTORY EXCEPTION APPLICABLE TO THE

  1971 PRIMARY.  HELD: 

  1.  THE DISTRICT COURT DID NOT ERR IN DECLINING TO ABSTAIN FROM

  MAKING A CONSTITUTIONAL RULING IN VIEW OF AN ILLINOIS SUPREME

  COURT ADJUDICATION CONFINING THE STATUTORY EXCEPTION TO POLITICAL

  PARTIES ENTITLED TO NOMINATE ONLY FOR CITY OFFICES AND MAKING IT

  INAPPLICABLE TO THE DEMOCRATIC AND REPUBLICAN PARTIES.  APPELLEE

  IS THUS NOT RELIEVED OF THE BAR OF THE 23-MONTH RULE.  PP. 53 -

  56. 

    2.  SECTION 7 - 43(D) UNCONSTITUTIONALLY INFRINGES UPON THE

  RIGHT OF FREE POLITICAL ASSOCIATION PROTECTED BY THE FIRST AND

  FOURTEENTH AMENDMENTS BY "LOCKING" THE VOTER IN HIS PRE-EXISTING

  PARTY AFFILIATION FOR A SUBSTANTIAL PERIOD OF TIME FOLLOWING HIS

  PARTICIPATION IN ANY PRIMARY ELECTION, AND THE STATE'S LEGITIMATE

  INTEREST IN PREVENTING PARTY "RAIDING" CANNOT JUSTIFY THE

  SUBSTANTIAL RESTRAINT OF THE 23-MONTH RULE.  ROSARIO V.

  ROCKEFELLER, 410 U.S. 752, DISTINGUISHED.  PP. 56 - 61. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, WHITE, MARSHALL, AND POWELL, JJ., JOINED.  BURGER, C.J.,
CONCURRED IN THE RESULT.  BLACKMUN, J., FILED A DISSENTING OPINION,
POST, P. 61.  REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH
BLACKMUN, J., JOINED, POST, P. 65. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

UNDER 7 - 43(D) OF THE ILLINOIS ELECTION CODE, A PERSON IS PROHIBITED
FROM VOTING IN THE PRIMARY ELECTION OF A POLITICAL PARTY IF HE HAS
VOTED IN THE PRIMARY OF ANY OTHER PARTY WITH THE PRECEDING 23 MONTHS. 
/1/  APPELLEE, HARRIET G. PONTIKES, IS A QUALIFIED CHICAGO VOTER WHO
VOTED IN A REPUBLICAN PRIMARY IN FEBRUARY 1971; /2/  SHE WANTED TO VOTE
IN A MARCH 1972 DEMOCRATIC PRIMARY, BUT WAS BARRED FROM DOING SO BY
THIS 23-MONTH RULE.  /3/  SHE FILED A COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, ALLEGING THAT 7 - 43(D) UNCONSTITUTIONALLY
ABRIDGED HER FREEDOM TO ASSOCIATE WITH THE POLITICAL PARTY OF HER
CHOICE BY DEPRIVING HER OF THE OPPORTUNITY TO VOTE IN THE DEMOCRACTIC
PRIMARY.  A STATUTORY THREE-JUDGE COURT WAS CONVENED, /4/  AND HELD,
ONE JUDGE DISSENTING, THAT THE 23-MONTH RULE IS UNCONSTITUTIONAL.  345
F.SUPP.  1104.  /5/  WE NOTED PROBABLE JURISDICTION OF THIS APPEAL FROM
THAT JUDGMENT.  411 U.S. 915.  /6/

       I 

AT THE OUTSET, WE ARE MET BY THE APPELLANTS' /7/ ARGUMENT THAT THE
DISTRICT COURT SHOULD HAVE ABSTAINED FROM ADJUDICATING THE
CONSTITUTIONALITY OF THE 23-MONTH RULE.  THEY BASE THIS ARGUMENT UPON
THAT PORTION OF 7 - 43(D) WHICH PROVIDES THAT: 

"(PARTICIPATION BY A PRIMARY ELECTOR IN A PRIMARY OF A POLITICAL
PARTY WHICH, UNDER THE PROVISIONS OF SECTION 7 - 2 OF THIS ARTICLE, IS
A POLITICAL PARTY WITHIN A CITY, VILLAGE OR INCORPORATED TOWN OR TOWN
ONLY AND ENTITLED HEREUNDER TO MAKE NOMINATIONS OF CANDIDATES FOR CITY,
VILLAGE OR INCORPORATED TOWN OR TOWN OFFICES ONLY, AND FOR NO OTHER
OFFICE OR OFFICES, SHALL NOT DISQUALIFY SUCH PRIMARY ELECTOR FROM
PARTICIPATING IN OTHER PRIMARIES OF HIS PARTY . . . . "  ILL. REV.
STAT., C. 46, 7 - 43(D).  THE APPELLANTS NOTE THAT THE FEBRUARY 1971
REPUBLICAN PRIMARY ELECTION IN WHICH MRS. PONTIKES VOTED INVOLVED ONLY
NOMINATIONS FOR THE OFFICES OF MAYOR, CITY CLERK, AND CITY TREASURER OF
THE CITY OF CHICAGO.  THEY CLAIM THAT THE STATE COURTS MIGHT INTERPRET
THIS 1971 PRIMARY TO HAVE BEEN ONE OF A "POLITICAL PARTY WITHIN A CITY
. . . ONLY,"  AND THUS OUTSIDE THE PURVIEW OF THE 23-MONTH RULE. 

AS WE STATED IN LAKE CARRIERS' ASSN. V. MAC MULLAN, 406 U.S. 498,
509: 

"ABSTENTION IS A 'JUDGE-MADE DOCTRINE . . . , FIRST FASHIONED IN
1941 IN RAILROAD COMMISSION V. PULLMAN CO., 312 U.S. 496, (THAT)
SANCTIONS . . . ESCAPE (FROM IMMEDIATE DECISION) ONLY IN NARROWLY
LIMITED "SPECIAL CIRCUMSTANCES," PROPPER V. CLARK, 337 U.S. 472, 492,'
ZWICKLER V. KOOTA, 389 U.S. 241, 248 (1967), JUSTIFYING 'THE DELAY AND
EXPENSE TO WHICH APPLICATION OF THE ABSTENTION DOCTRINE INEVITABLY
GIVES RISE.'  ENGLAND V. MEDICAL EXAMINERS, 375 U.S. 411, 418 (1964)." 
/8/ 

THE PARADIGM OF THE "SPECIAL CIRCUMSTANCES" THAT MAKE ABSTENTION
APPROPRIATE IS A CASE WHERE THE CHALLENGED STATE STATUTE IS SUSCEPTIBLE
OF A CONSTRUCTION BY THE STATE JUDICIARY THAT WOULD AVOID OR MODIFY THE
NECESSITY OF REACHING A FEDERAL CONSTITUTIONAL QUESTION.  ZWICKLER V.
KOOTA, 389 U.S. 241, 249; HARRISON V. NAACP, 360 U.S. 167, 176 - 177. 
ABSTENTION IN SUCH CIRCUMSTANCES NOT ONLY SERVES TO MINIMIZE FEDERAL
STATE FRICTION, BUT ALSO AVOIDS PREMATURE AND PERHAPS UNNECESSARY
CONSTITUTIONAL ADJUDICATION.  HARMAN V. FORSSENIUS, 380 U.S. 528, 534. 
BUT THE DOCTRINE OF ABSTENTION "CONTEMPLATES THAT DEFERENCE TO STATE
COURT ADJUDICATION ONLY BE MADE WHERE THE ISSUE OF STATE LAW IS
UNCERTAIN."  IBID.  WHERE, ON THE OTHER HAND, IT CANNOT BE FAIRLY
CONCLUDED THAT THE UNDERLYING STATE STATUTE IS SUSCEPTIBLE OF AN
INTERPRETATION THAT MIGHT AVOID THE NECESSITY FOR CONSTITUTIONAL
ADJUDICATION, ABSTENTION WOULD AMOUNT TO SHIRKING THE SOLEMN
RESPONSIBILITY OF THE FEDERAL COURTS TO "GUARD, ENFORCE, AND PROTECT
EVERY RIGHT GRANTED OR SECURED BY THE CONSTITUTION OF THE UNITED
STATES," ROBB V. CONNOLLY, 111 U.S. 624, 637. 

WE THINK THAT THE ILLINOIS STATUTE INVOLVED IN THIS CASE IS NOT
FAIRLY SUSCEPTIBLE OF A READING THAT WOULD AVOID THE NECESSITY OF
CONSTITUTIONAL ADJUDICATION.  THE APPELLANTS' ARGUMENT--THAT THE
FEBRUARY 1971 CHICAGO REPUBLICAN PRIMARY MIGHT BE CONSIDERED THAT OF A
"POLITICAL PARTY WITHIN A CITY . . . ONLY"--IS FORECLOSED BY THE
DECISION OF THE ILLINOIS SUPREME COURT IN FAHERTY V. BOARD OF ELECTION
COMM'RS, 5 ILL.2D 519, 126 N.E.2D 235.  THAT DECISION MADE IT CLEAR
THAT THE KIND OF "LOCAL" PRIMARIES THAT ARE OUTSIDE THE SCOPE OF 7 -
43(D) ARE SIMPLY THOSE OF "'PURELY CITY . . . POLITICAL PARTIES)'"-
THOSE PARTIES ENTITLED, UNDER 7 - 2 OF THE ILLINOIS ELECTION CODE, TO
MAKE NOMINATIONS FOR CITY OFFICES ONLY.  ID., AT 524, 126 N.E.2D, AT
238.  /9/ 

SINCE BOTH THE DEMOCRATIC AND REPUBLICAN PARTIES ARE, OF COURSE,
ENTITLED IN ILLINOIS TO MAKE NOMINATIONS NOT ONLY FOR CITY OFFICES, BUT
FOR CONGRESSIONAL, STATE AND COUNTY OFFICES AS WELL, THE FAHERTY COURT
HELD THAT THEY WERE NOT WITHIN THE STATUTORY DEFINITION OF "CITY"
PARTIES.  IT FOLLOWS THEN, THAT DESPITE THE FACT THAT THE FEBRUARY 1971
REPUBLICAN PRIMARY IN WHICH THE APPELLEE VOTED INVOLVED ONLY
NOMINATIONS FOR OFFICES WITHIN THE CITY OF CHICAGO, MRS. PONTIKES WAS
STILL CLEARLY BARRED BY THE 23-MONTH RULE FROM VOTING IN THE MARCH 1972
DEMOCRATIC PRIMARY.  /10/  THE DISTRICT COURT WAS THUS WHOLLY JUSTIFIED
IN DECLINING TO ABSTAIN FROM DECIDING THE CONSTITUTIONAL VALIDITY OF
THE 23-MONTH RULE, AND IT IS TO THAT ISSUE THAT WE NOW TURN. 

        II 

THERE CAN NO LONGER BE ANY DOUBT THAT FREEDOM TO ASSOCIATE WITH
OTHERS FOR THE COMMON ADVANCEMENT OF POLITICAL BELIEFS AND IDEAS IS A
FORM OF "ORDERLY GROUP ACTIVITY" PROTECTED BY THE FIRST AND FOURTEENTH
AMENDMENTS.  NAACP V. BUTTON, 371 U.S. 415, 430; BATES V. LITTLE ROCK,
361 U.S. 516, 522 - 523; NAACP V. ALABAMA, 357 U.S. 449, 460 - 461. 
THE RIGHT TO ASSOCIATE WITH THE POLITICAL PARTY OF ONE'S CHOICE IS AN
INTEGRAL PART OF THIS BASIC CONSTITUTIONAL FREEDOM.  WILLIAMS V.
RHODES, 393 U.S. 23, 30.  CF. UNITED STATES V. ROBEL, 389 U.S. 258. 

TO BE SURE, ADMINISTRATION OF THE ELECTORAL PROCESS IS A MATTER THAT
THE CONSTITUTION LARGELY ENTRUSTS TO THE STATES.  /11/  BUT, IN
EXERCISING THEIR POWERS OF SUPERVISION OVER ELECTIONS AND IN SETTING
QUALIFICATIONS FOR VOTERS, THE STATES MAY NOT INFRINGE UPON BASIC
CONSTITUTIONAL PROTECTIONS.  SEE, E.G., DUNN V. BLUMSTEIN, 405 U.S.
330; KRAMER V. UNION SCHOOL DISTRICT, 395 U.S. 621; CARRINGTON V. RASH,
380 U.S. 89.  AS THE COURT MADE CLEAR IN WILLIAMS V. RHODES, SUPRA,
UNDULY RESTRICTIVE STATE ELECTION LAWS MAY SO IMPINGE UPON FREEDOM OF
ASSOCIATION AS TO RUN AFOUL OF THE FIRST AND FOURTEENTH AMENDMENTS. 
393 U.S., AT 30.  AND SEE ID., AT 35 - 41 (DOUGLAS, J., CONCURRING);
ID., AT 41 - 48 (HARLAN, J., CONCURRING). 

THERE CAN BE LITTLE DOUBT THAT 7 - 43(D) SUBSTANTIALLY RESTRICTS AN
ILLINOIS VOTER'S FREEDOM TO CHANGE HIS POLITICAL PARTY AFFILIATION. 
ONE WHO WISHES TO CHANGE HIS PARTY REGISTRATION MUST WAIT ALMOST TWO
YEARS BEFORE HIS CHOICE WILL BE GIVEN EFFECT.  MOREOVER, HE IS FORCED
TO FORGO PARTICIPATION IN ANY PRIMARY ELECTIONS OCCURRING WITHIN THE
STATUTORY 23-MONTH HIATUS.  THE EFFECT OF THE ILLINOIS STATUTE IS THUS
TO "LOCK" THE VOTER INTO HIS PRE-EXISTING PARTY AFFILIATION FOR A
SUBSTANTIAL PERIOD OF TIME FOLLOWING PARTICIPATION IN ANY PRIMARY
ELECTION, AND EACH SUCCEEDING PRIMARY VOTE EXTENDS THIS PERIOD OF
CONFINEMENT. 

THE 23-MONTH RULE DOES NOT, OF COURSE, DEPRIVE THOSE IN THE
APPELLEE'S POSITION OF ALL OPPORTUNITIES TO ASSOCIATE WITH THE
POLITICAL PARTY OF THEIR CHOICE.  BUT NEITHER DID THE STATE ATTEMPTS TO
COMPEL DISCLOSURE OF NAACP MEMBERSHIP LISTS IN BATES V. LITTLE ROCK AND
NAACP V. ALABAMA WORK A TOTAL RESTRICTION UPON THE FREEDOM OF THE
ORGANIZATION'S MEMBERS TO ASSOCIATE WITH EACH OTHER.  RATHER, THE COURT
FOUND IN THOSE CASES THAT THE STATUTES UNDER ATTACK CONSTITUTED A
"SUBSTANTIAL RESTRAINT"  /12/  AND A "SIGNIFICANT INTERFERENCE"  /13/
WITH THE EXERCISE OF THE CONSTITUTIONALLY PROTECTED RIGHT OF FREEDOM
ASSOCIATION. 

THE SAME IS TRUE OF 7 - 43(D).  WHILE THE ILLINOIS STATUTE DID NOT
ABSOLUTELY PRECLUDE MRS. PONTIKES FROM ASSOCIATING WITH THE DEMOCRATIC
PARTY, IT DID ABSOLUTELY PRECLUDE HER FROM VOTING IN THAT PARTY'S 1972
PRIMARY ELECTION.  UNDER OUR POLITICAL SYSTEM, A BASIC FUNCTION OF A
POLITICAL PARTY IS TO SELECT THE CANDIDATES FOR PUBLIC OFFICE TO BE
OFFERED TO THE VOTERS AT GENERAL ELECTIONS.  A PRIME OBJECTIVE OF MOST
VOTERS IN ASSOCIATING THEMSELVES WITH A PARTICULAR PARTY MUST SURELY BE
TO GAIN A VOICE IN THAT SELECTION PROCESS.  BY PREVENTING THE APPELLEE
FROM PARTICIPATING AT ALL IN DEMOCRATIC PRIMARY ELECTIONS DURING THE
STATUTORY PERIOD, THE ILLINOIS STATUTE DEPRIVED HER OF ANY VOICE IN
CHOOSING THE PARTY'S CANDIDATES, AND THUS SUBSTANTIALLY ABRIDGED HER
ABILITY TO ASSOCIATE EFFECTIVELY WITH THE PARTY OF HER CHOICE. 

        III 

AS OUR PAST DECISIONS HAVE MADE CLEAR, A SIGNIFICANT ENCROACHMENT
UPON ASSOCIATIONAL FREEDOM CANNOT BE JUSTIFIED UPON A MERE SHOWING OF A
LEGITIMATE STATE INTEREST.  BATES V. LITTLE ROCK, SUPRA, AT 524; NAACP
V. ALABAMA, SUPRA, AT 463.  FOR EVEN WHEN PURSUING A LEGITIMATE
INTEREST, A STATE MAY NOT CHOOSE MEANS THAT UNNECESSARILY RESTRICT
CONSTITUTIONALLY PROTECTED LIBERTY.  DUNN V. BLUMSTEIN, 405 U.S., AT
343.  "PRECISION OF REGULATION MUST BE THE TOUCHSTONE IN AN AREA SO
CLOSELY TOUCHING OUR MOST PREVIOUS FREEDOMS."  NAACP V. BUTTON, 371
U.S., AT 438.  IF THE STATE HAS OPEN TO IT A LESS DRASTIC WAY OF
SATISFYING ITS LEGITIMATE INTERESTS, IT MAY NOT CHOOSE A LEGISLATIVE
SCHEME THAT BROADLY STIFLES THE EXERCISE OF FUNDAMENTAL PERSONAL
LIBERTIES.  SHELTON V. TUCKER, 364 U.S. 479, 488. 

THE APPELLANTS HERE URGE THAT THE 23-MONTH RULE SERVES THE PURPOSE
OF PREVENTING "RAIDING"--THE PRACTICE WHEREBY VOTERS IN SYMPATHY WITH
ONE PARTY VOTE IN ANOTHER'S PRIMARY IN ORDER TO DISTORT THAT PRIMARY'S
RESULTS.  IT IS SAID THAT OUR DECISION IN ROSARIO V. ROCKEFELLER, 410
U.S. 752, RECOGNIZED THE STATE INTEREST IN INHIBITING "RAIDING," AND
UPHELD THE CONSTITUTIONAL VALIDITY OF LEGISLATION RESTRICTING A VOTER'S
FREEDOM TO CHANGE PARTIES, ENACTED AS A MEANS OF SERVING THAT
INTEREST. 

IT IS TRUE, OF COURSE, THAT THE COURT FOUND NO CONSTITUTIONAL
INFIRMITY IN THE NEW YORK DELAYED-ENROLLMENT STATUTE /14/  UNDER REVIEW
IN ROSARIO.  THAT LAW REQUIRED A VOTER TO ENROLL IN THE PARTY OF HIS
CHOICE AT LEAST 30 DAYS BEFORE A GENERAL ELECTION IN ORDER TO BE
ELIGIBLE TO VOTE IN THE NEXT PARTY PRIMARY, AND THUS PREVENTED A CHANGE
IN PARTY AFFILIATION DURING THE APPROXIMATELY 11 MONTHS BETWEEN THE
DEADLINE AND THE PRIMARY ELECTION.  /15/  IT IS ALSO TRUE THAT THE
COURT RECOGNIZED IN ROSARIO THAT A STATE MAY HAVE A LEGITIMATE INTEREST
IN SEEKING TO CURTAIL "RAIDING," SINCE THAT PRACTICE MAY AFFECT THE
INTEGRITY OF THE ELECTORAL PROCESS.  ID., AT 761.  BUT IT DOES NOT
FOLLOW FROM ROSARIO THAT THE ILLINOIS STATUTORY PROCEDURES ALSO PASS
MUSTER UNDER THE FOURTEENTH AMENDMENT, FOR THE ILLINOIS ELECTION CODE
DIFFERS FROM THE NEW YORK DELAYED-ENROLLMENT LAW IN A NUMBER OF
IMPORTANT RESPECTS. 

THE NEW YORK STATUTE AT ISSUE IN ROSARIO DID NOT PREVENT VOTERS FROM
PARTICIPATING IN THE PARTY PRIMARY OF THEIR CHOICE; IT MERELY IMPOSED A
TIME LIMIT ON ENROLLMENT.  UNDER THE NEW YORK LAW, A PERSON WHO WANTED
TO VOTE IN A DIFFERENT PARTY PRIMARY EVERY YEAR WAS NOT PRECLUDED FROM
DOING SO; HE HAD ONLY TO MEET THE REQUIREMENT OF DECLARING HIS PARTY
ALLEGIANCE 30 DAYS BEFORE THE PRECEDING GENERAL ELECTION.  THE NEW YORK
LAW DID NOT HAVE THE CONSEQUENCE OF "LOCKING" A VOTER INTO AN UNWANTED
PARTY AFFILIATION FROM ONE ELECTION TO THE NEXT; ANY SUCH CONFINEMENT
WAS MERELY THE RESULT OF THE ELECTOR'S VOLUNTARY FAILURE TO TAKE TIMELY
MEASURES TO ENROLL.  ID., AT 757-759.  THE COURT THEREFORE CONCLUDED
THAT THE NEW YORK DELAYED-ENROLLMENT LAW DID NOT PREVENT VOTERS "FROM
ASSOCIATING WITH THE POLITICAL PARTY OF THEIR CHOICE."  ID., AT 762. 
AND SEE ID., AT 758 AND N. 8. 

THE BASIC DIFFERENCE IN THE ILLINOIS LAW IS OBVIOUS.  SINCE THE
APPELLEE HERE VOTED IN THE 1971 REPUBLICAN PRIMARY, THE STATE LAW
ABSOLUTELY PRECLUDED HER FROM PARTICIPATING IN THE 1972 DEMOCRATIC
PRIMARY.  UNLIKE THE PETITIONERS IN ROSARIO, WHOSE DISENFRANCHISEMENT
WAS CAUSED BY THEIR OWN FAILURE TO TAKE TIMELY MEASURES TO ENROLL,
THERE WAS NO ACTION THAT MRS. PONTIKES COULD HAVE TAKEN TO MAKE HERSELF
ELIGIBLE TO VOTE IN THE 1972 DEMOCRATIC PRIMARY.  /16/  THE ILLINOIS
LAW, UNLIKE THAT OF NEW YORK, THUS "LOCKS" VOTERS INTO A PRE-EXISTING
PARTY AFFILIATION FROM ONE PRIMARY TO THE NEXT, AND THE ONLY WAY TO
BREAK THE "LOCK" IS TO FORGO VOTING IN ANY PRIMARY FOR A PERIOD OF
ALMOST TWO YEARS. 

IN OTHER WORDS, WHILE THE COURT HELD IN ROSARIO THAT THE NEW YORK
DELAYED-ENROLLMENT SCHEME DID NOT PREVENT VOTERS FROM EXERCISING THEIR
CONSTITUTIONAL FREEDOM TO ASSOCIATE WITH THE POLITICAL PARTY OF THEIR
CHOICE, THE ILLINOIS 23-MONTH RULE CLEARLY DOES JUST THAT.  IT FOLLOWS
THAT THE LEGITIMATE INTEREST OF ILLINOIS IN PREVENTING "RAIDING" CANNOT
JUSTIFY THE DEVICE IT HAS CHOSEN TO EFFECT ITS GOAL.  FOR THAT DEVICE
CONSPICUOUSLY INFRINGES UPON BASIC CONSTITUTIONAL LIBERTY.  FAR FROM
SUPPORTING THE VALIDITY OF THE ILLINOIS LEGISLATION, THE COURT'S
DECISION IN ROSARIO SUGGESTS THAT THE ASSERTED STATE INTEREST CAN BE
ATTAINED BY "LESS DRASTIC MEANS," WHICH DO NOT UNNECESSARILY BURDEN THE
EXERCISE OF CONSTITUTIONALLY PROTECTED ACTIVITY.     WE CONCLUDE,
THEREFORE, THAT 7 - 43(D) OF THE ILLINOIS ELECTION CODE
UNCONSTITUTIONALLY INFRINGES UPON THE RIGHT OF FREE POLITICAL
ASSOCIATION PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS.  THE
JUDGMENT OF THE DISTRICT COURT IS ACCORDINGLY

           AFFIRMED. 

/1/  ILL. REV. STAT., C. 46, 7 - 43 PROVIDES, IN PERTINENT PART: 
"NO PERSON SHALL BE ENTITLED TO VOTE AT A PRIMARY:

        *          *          *       * 

"(D) IF HE HAS VOTED AT A PRIMARY HELD UNDER THIS ARTICLE 7 OF
ANOTHER POLITICAL PARTY WITHIN A PERIOD OF 23 CALENDAR MONTHS NEXT
PRECEDING THE CALENDAR MONTH IN WHICH SUCH PRIMARY IS HELD:  PROVIDED,
PARTICIPATION BY A PRIMARY ELECTOR IN A PRIMARY OF A POLITICAL PARTY
WHICH, UNDER THE PROVISIONS OF SECTION 7 - 2 OF THIS ARTICLE, IS A
POLITICAL PARTY WITHIN A CITY, VILLAGE OR INCORPORATED TOWN OR TOWN
ONLY AND ENTITLED HEREUNDER TO MAKE NOMINATIONS OF CANDIDATES FOR CITY,
VILLAGE OR INCORPORATED TOWN OR TOWN OFFICES ONLY, AND FOR NO OTHER
OFFICE OR OFFICES, SHALL NOT DISQUALIFY SUCH PRIMARY ELECTOR FROM
PARTICIPATING IN OTHER PRIMARIES OF HIS PARTY:  AND, PROVIDED, THAT NO
QUALIFIED VOTER SHALL BE PRECLUDED FROM PARTICIPATING IN THE PRIMARY OF
ANY PURELY CITY, VILLAGE OR INCORPORATED TOWN OR TOWN POLITICAL PARTY
UNDER THE PROVISIONS OF SECTION 7 - 2 OF THIS ARTICLE BY REASON OF SUCH
VOTER HAVING VOTED AT THE PRIMARY OF ANOTHER POLITICAL PARTY WITHIN A
PERIOD OF 23 CALENDAR MONTHS NEXT PRECEDING THE CALENDAR MONTH IN WHICH
HE SEEKS TO PARTICIPATE IS HELD." 

/2/  THE REPUBLICAN PRIMARY IN WHICH THE APPELLEE VOTED INVOLVED
NOMINATIONS FOR THE OFFICES OF MAYOR, CITY CLERK, AND CITY TREASURER OF
CHICAGO. 

/3/  THE MARCH 1972 DEMOCRATIC PRIMARY INVOLVED, INTER ALIA,
NOMINATIONS FOR GOVERNOR, UNITED STATES SENATOR, UNITED STATES
REPRESENTATIVE, STATE LEGISLATORS, COUNTY OFFICERS, AND DELEGATES TO
THE NATIONAL CONVENTION OF THE DEMOCRATIC PARTY. 

/4/  28 U.S.C. 2281, 2284. 

/5/  THE DISTRICT COURT UPHELD THE CONSTITUTIONAL VALIDITY OF ILL.
REV. STAT., C. 46, 7 - 43(A) AND 7 - 44, WHICH REQUIRE A DECLARATION OF
PARTY AFFILIATION AS A PREREQUISITE TO VOTING IN A PRIMARY ELECTION. 
THIS HOLDING, WHICH WAS UNANIMOUS, HAS NOT BEEN APPEALED. 

/6/  THIS CASE WAS CONSOLIDATED IN THE DISTRICT COURT WITH A SIMILAR
ACTION BROUGHT BY TWO OTHER VOTERS AGAINST THE COUNTY CLERK OF LAKE
COUNTY, ILLINOIS.  THE DEFENDANT IN THAT CASE HAS NOT APPEALED FROM THE
DISTRICT COURT'S JUDGMENT. 

/7/  THE APPELLANTS IN THIS CASE ARE MEMBERS OF THE CHICAGO BOARD OF
ELECTION COMMISSIONERS, WHO ARE RESPONSIBLE FOR ADMINISTERING THE
PROVISIONS OF THE ILLINOIS ELECTION CODE WITHIN THE CITY.  SEE ILL.
REV. STAT., C. 46, 6 - 21 ET SEQ. 

/8/  BRACKETED MATERIAL IN ORIGINAL. 

/9/  ILL. REV. STAT., C. 46, 7 - 2 DEFINES THE TERM "POLITICAL
PARTY" UNDER ILLINOIS LAW, AND STATES THE OFFICES FOR WHICH VARIOUS
TYPES OF POLITICAL PARTIES ARE ENTITLED TO MAKE NOMINATIONS.  UNDER 7 -
2, A PARTY THAT GARNERS MORE THAN 5% OF THE ENTIRE VOTE CAST AT A
STATEWIDE GENERAL ELECTION IS DEFINED AS A "POLITICAL PARTY WITHIN THE
STATE,"  AND IS ENTITLED TO MAKE NOMINATIONS FOR ALL STATE AND COUNTY
OFFICES IN THE NEXT SUCCEEDING PRIMARY.  SIMILARLY, A PARTY THAT POLLS
MORE THAN 5% OF THE ENTIRE VOTE CAST AT A MUNICIPAL GENERAL ELECTION IS
DEFINED AS A "POLITICAL PARTY WITHIN . . . (A) CITY," AND IS ENTITLED
TO MAKE NOMINATIONS FOR CITY ELECTIVE POSITIONS AT THE NEXT SUCCEEDING
PRIMARY. 

UNDER 7 - 43(D), A "POLITICAL PARTY WITHIN A CITY . . . ONLY"  IS ONE
THAT HAS QUALIFIED UNDER 7-2 TO MAKE ONLY CITY NOMINATIONS; IN OTHER
WORDS, A PARTY THAT HAS POLLED MORE THAN 5% OF THE VOTE AT THE
PRECEDING MUNICIPAL GENERAL ELECTION, BUT LESS THAN 5% OF THE VOTE AT
THE PRECEDING STATEWIDE GENERAL ELECTION.  OBVIOUSLY, THE REPUBLICAN
PARTY, IN WHOSE 1971 CHICAGO PRIMARY THE APPELLEE VOTED, DOES NOT FIT
WITHIN THIS DESCRIPTION. 

/10/  IT IS TRUE, AS THE APPELLANTS ARGUE, THAT THE PLAINTIFF IN
FAHERTY V. BOARD OF ELECTION COMM'RS, 5 ILL.2D 519, 126 N.E.2D 235,
WISHES TO VOTE IN A CHICAGO DEMOCRATIC PRIMARY AFTER HAVING VOTED,
WITHIN THE PAST YEAR, IN A STATEWIDE REPUBLICAN PRIMARY; THUS, THE
FACTUAL SETTING IN FAHERTY WAS PRECISELY THE CONVERSE OF THAT HERE. 
THIS, HOWEVER, IS A DISTINCTION WITHOUT A DIFFERENCE.  THE HOLDING OF
FAHERTY WAS THAT REPUBLICAN AND DEMOCRATIC PRIMARIES, EVEN THOSE
INVOLVING ONLY CITYWIDE OFFICES, WERE NOT PRIMARIES OF POLITICAL
PARTIES "WITHIN A CITY . . . ONLY."  SEE N. 9, SUPRA. THUS, THESE
PRIMARIES ARE FULLY WITHIN THE PURVIEW OF THE 7 - 43(D) 23-MONTH RULE. 

/11/  SEE ART. I, 2; ART. II, 1.  WITH RESPECT TO ELECTIONS TO
FEDERAL OFFICE, HOWEVER, THE COURT HAS HELD THAT CONGRESS HAS POWER TO
ESTABLISH VOTER QUALIFICATIONS.  OREGON V. MITCHEL, 400 U.S. 112. 

/12/  NAACP V. ALABAMA, 357 U.S. 449, 462. 

/13/  BATES V. LITTLE ROCK, 361 U.S. 516, 523. 

/14/  N.Y. ELECTION LAW 186. 

/15/  NEW YORK PRESIDENTIAL PRIMARIES ARE HELD IN JUNE; THUS, IN
PRESIDENTIAL ELECTION YEARS, THE CUTOFF DATE PRESCRIBED BY 186 OCCURS
ABOUT EIGHT MONTHS BEFORE THE PRIMARY.  ROSARIO V. ROCKEFELLER, 410
U.S. 752, 760. 

/16/  SHE COULD, OF COURSE, HAVE MADE HERSELF ELIGIBLE TO VOTE IN
THE 1972 DEMOCRATIC PRIMARY BY FORGOING PARTICIPATION IN THE 1971
REPUBLICAN PRIMARY.  BUT SUCH A COURSE WOULD HAVE PREVENTED HER FROM
ASSOCIATING WITH THE PARTY OF HER CHOICE IN 1971, AND THUS IN NO WAY
WOULD HAVE OBVIATED THE CONSTITUTIONAL DEFICIENCIES INHERENT IN THE
ILLINOIS LAW. 

THE CHIEF JUSTICE CONCURS IN THE RESULT. 

MR. JUSTICE BLACKMUN, DISSENTING. 

THE DEPRIVATION MRS. PONTIKES CLAIMS TO HAVE SUFFERED, AND WHICH THE
COURT TODAY ENSHROUDS WITH THE MANTLE OF UNCONSTITUTIONALITY, IS THAT
SHE HAS BEEN RESTRAINED BY THE ILLINOIS STATUTE FROM VOTING IN ONE
PRIMARY ELECTION OF ONE PARTY IN THE RELATIVELY MINOR CONTEXT OF A
PERSONAL DESIRE TO UNDO AN ESTABLISHED PARTY AFFILIATION.  APART FROM
THIS MEAGER RESTRAINT, APPELLEE PONTIKES IS FULLY FREE TO ASSOCIATE
WITH THE PARTY OF HER VARYING CHOICE.  SHE IS, AND HAS BEEN, COMPLETELY
FREE TO VOTE AS SHE CHOOSES IN ANY GENERAL ELECTION.  AND SHE WAS FREE
TO VOTE IN THE PRIMARY OF THE PARTY WITH WHICH SHE HAD AFFILIATED AND
VOTED IN THE PRECEDING PRIMARY. 

IT IS IMPORTANT, I THINK--AND DESERVING OF REPEATED EMPHASIS--TO
NOTE THAT THIS VERY LIMITED STATUTORY RESTRICTION ON THE APPELLEE'S
EXERCISE OF HER FRANCHISE IS TRIGGERED SOLELY BY HER PERSONAL AND
VOLUNTARY DECISION.  THIS BEING SO, THE COURT'S CONCLUSION SEEMS TO ME
TO DILUTE AN IMPORTANT FIRST AMENDMENT CONCEPT THE VITALITY OF WHICH,
IN THE LONG RUN, NECESSARILY WILL SUFFER FROM STRAINED AND ARTIFICIAL
APPLICATIONS OF THIS KIND.  THE MERE FACT THAT A STATE STATUTE LIGHTLY
BRUSHES UPON THE RIGHT TO VOTE AND THE RIGHT OF ASSOCIATION, IMPORTANT
AS THESE ARE, SHOULD NOT AUTOMATICALLY RESULT IN INVALIDATION.  PRIOR
CASE LAW DOES NOT REQUIRE A CONCLUSION OF INVALIDITY WHERE, AS HERE,
THE INTRUSION IS SO MINOR.  SEE MC DONALD V. BOARD OF ELECTION COMM'RS,
394 U.S. 802 (1969); ROSARIO V. ROCKEFELLER, 410 U.S. 752 (1973). 

IN NEARLY ALL THE VOTING CASES RELIED UPON BY THE COURT AND BY THE
APPELLEE, THE COURT WAS FACED WITH SITUATIONS WHERE THE
DISQUALIFICATION AMOUNTED TO A DIRECT DISENFRANCHISEMENT OR A VOTE
DILUTION SUFFERED BY A DISCRETE CLASS WHOSE IMPEDIMENT, AS SO IMPOSED,
WAS THE RESULT OF AN INVOLUNTARY CONDITION NOT DIRECTLY TIED TO THE
FRANCHISE.  SEE, FOR EXAMPLE, HARPER V. VIRGINIA BOARD OF ELECTIONS,
383 U.S. 663 (1966) (POLL TAX AND WEALTH); REYNOLDS V. SIMS, 377 U.S.
533 (1964) (LOCATION); CIPRIANO V. CITY OF HOUMA, 395 U.S. 701 (1969)
(PROPERTY OWNERSHIP); CARRINGTON V. RASH, 380 U.S. 89 (1965) (MILITARY
STATUS).  CF. DUNN V. BLUMSTEIN, 405 U.S. 330 (1972) (RESIDENCE).  IN
EACH OF THESE CASES THERE WAS A DIRECT IMPAIRMENT OF THE ABILITY OF THE
AFFECTED CLASS, WITHOUT VOLUNTARY ACTION, TO PARTICIPATE IN THE
ELECTORAL PROCESS.  THE LEVEL OF INTRUSION WAS MARKEDLY SIGNIFICANT. 

WHAT IS BEFORE US HERE IS A FAIRLY COMPLEX STATUTORY STRUCTURE
DESIGNED BY ILLINOIS TO PROTECT THE INTEGRITY OF THE BALLOT BOX AND THE
PARTY SYSTEM.  THE INTEREST ASSERTED BY THE STATE IS CLEARLY A
LEGITIMATE ONE.  ROSARIO V. ROCKEFELLER, SUPRA, 410 U.S., AT 761; DUNN
V.BLUMSTEIN, 405 U.S., AT 345; BULLOCK V. CARTER, 405 U.S. 134, 145
(1972).  AND, IT SEEMS TO ME, MEANS OF THE KIND ILLINOIS HAS EMPLOYED
ARE REASONABLY RELATED TO THE FULFILLMENT OF THAT INTEREST.  THE EXTENT
TO WHICH ORGANIZED PARTY RAIDING CAN DISRUPT, WITH UNFORTUNATE RESULTS,
THE ORDERLY PROCESS OF PARTY PRIMARY BALLOTING IS, PERHAPS, OPEN TO
REASONABLE DIFFERENCES OF OPINION.  INDEED, IN THIS CASE THE PARTIES
HAVE JOINED ISSUE AS TO THE PRECISE DEGREE OF IMPACT THIS PRACTICE HAS
HAD IN RECENT ILLINOIS ELECTIONS.  REGARDLESS OF WHICH FACTUAL VERSION
IS TO BE CREDITED, THE LEGITIMACY OF THE INTEREST IS UNQUESTIONED. 
WITH RESPECT TO A STATE LIKE ILLINOIS, WHERE PARTY REGIMENTATION ON AN
EXTENSIVE SCALE IS LEGENDARY, THE COURT, IN MY VIEW, SHOULD MOVE
CAUTIOUSLY WHEN IT IS TEMPTED TO PASS JUDGMENT IN TERMS OF ASSUMING
THAT THERE IS A BETTER OR A LESS DRASTIC MEANS BY WHICH THE STATE IS
ABLE TO ACHIEVE ITS ADMITTEDLY LAUDABLE AND LAWFUL PURPOSE. 

BY RESORTING TO A STANDARD OF RIGID AND STRICT REVIEW, AND BY
INDULGING IN WHAT I FEAR IS A DEPARTURE FROM THE APPROPRIATELY
DIFERENTIAL APPROACH IN ROSARIO, THE COURT PLACES ITSELF IN THE
POSITION OF FAILING TO GIVE THE STATES THE ELBOW ROOM THEY DESERVE AND
MUST POSSESS IF THEY ARE TO FORMULATE SOLUTIONS FOR THE MANY AND
PARTICULAR PROBLEMS CONFRONTING THEM THAT ARE ASSOCIATED WITH THE
PRESERVATION OF THE INTEGRITY OF THE FRANCHISE.  CF. PHOENIX V.
KOLODZIEJSKI, 399 U.S. 204 (1970); BURNS V. FORTSON, 410 U.S. 686, 687
(1973) (CONCURRING OPINION).  SURELY, AT SOME POINT, THE IMPORTANT
INTEREST OF THE STATE IN PROTECTING ITS ENTIRE ELECTORAL SYSTEM
OUTWEIGHS A MINOR AND INCIDENTAL BURDEN THAT HAPPENS TO FALL ON A FEW
UNIQUELY SITUATED CITIZENS. 

THE ILLINOIS LEGISLATURE HAS DETERMINED THAT A RULE PRECLUDING
VOTING IN THE PRIMARIES OF DIFFERENT PARTIES IN SUCCESSIVE ANNUAL
ELECTIONS IS A DESIRABLE AND NECESSARY MEANS BY WHICH TO PRESERVE AN
OTHERWISE VULNERABLE STRUCTURE.  IN ROSARIO, SUPRA, 410 U.S., AT 762,
WE APPLIED A "PARTICULARIZED LEGITIMATE PURPOSE" STANDARD TO A
SIMILARLY DIRECTED SCHEME AND UPHELD THE NEW YORK STATUTE.  AS MR.
JUSTICE REHNQUIST POINTS OUT IN HIS DISSENT, POST, AT 68, THE DEGREE OF
DISENFRANCHISEMENT RESULTING FROM THE NEW YORK PROVISION IS POTENTIALLY
AS GREAT AS, IF NOT GREATER THAN, THE ILLINOIS PROVISION CHALLENGED
HERE.  THAT CASE AND THIS ONE, TAKEN TOGETHER, THEREFORE, EFFECT
INCONGRUOUS RESULTS.  NOT ONLY IS THE ACTUAL DISENFRANCHISEMENT IN THIS
CASE NO GREATER THAN THAT IN ROSARIO, BUT THE ILLINOIS PROVISION HAS A
MORE RATIONAL RELATION TO ITS PURPOSE THAN DOES THE NEW YORK
PROVISION.  THE NEW YORK STATUTE SPECIFIED AN ARBITRARY TIME PERIOD
PRIOR TO WHICH IT IS ASSUMED THAT ORGANIZED PARTY SWITCHING FOR RAIDING
PURPOSES WILL NOT OCCUR.  IN CONTRAST, ILLINOIS CHOSE NOT TO EMPLOY A
FLAT TIME LIMIT THAT IS BY NATURE SPECULATIVE AND ARBITRARY; INSTEAD,
IT TIED ITS DISQUALIFICATION DIRECTLY TO A SIGNIFICANT EVENT, NAMELY, A
VOTE IN ANOTHER PARTY'S LAST PRIMARY.  SEEMINGLY, THE 23-MONTH PERIOD
WAS CHOSEN SO THAT THE LIMITATION WOULD NOT EXTEND BACK BEYOND THE MOST
RECENT PRIMARY.  WHEN PRIMARIES ARE HELD ANNUALLY, THE 23-MONTH PERIOD
AMOUNTS TO NO MORE THAN A ONE-YEAR LIMITATION, AND IN THIS RESPECT THE
STATUTE IS DRAWN AS NARROWLY AS CAN BE EXPECTED FOR A SYSTEM THAT IS
TIED TO A PRIOR PRIMARY VOTE RATHER THAN A DESIGNATED TIME PERIOD.  BY
TYING THE CUTOFF TO A PRIMARY, THE ILLINOIS SCHEME SEEMS DIRECTLY
DESIGNED TO SUCCEED IN PREVENTING ORGANIZED CROSSOVERS, FOR IT IS
HIGHLY UNLIKELY THAT ANY SIGNIFICANT NUMBER OF PARTY REGULARS WOULD
EVER BE INSTRUCTED NOT TO VOTE AT ALL IN ONE PRIMARY IN ORDER TO
SUBVERT THE NEXT ONE THAT WILL NOT BE HELD FOR ANOTHER YEAR. 

MR. JUSTICE REHNQUIST ALSO OBSERVES THAT THE ILLINOIS SYSTEM DOES
NOT HAVE THE SIDE EFFECT OF CREATING A PER SE EXCLUSION FOR A FEW
VOTERS.  IT IS THIS FACTOR, APPARENTLY, THAT HAS CAUSED THE COURT TO
SEEK TO DISTINGUISH ROSARIO.  IN NEW YORK THE DISQUALIFICATION
OCCASIONED BY THE TIME LIMIT WILL HAVE ITS IMPACT, MORE OFTEN THAN NOT,
UPON THOSE WHO HAVE NOT BEEN DILIGENT.  THIS, INDEED, WAS THE VERY
SITUATION IN ROSARIO.  THE ILLINOIS PROVISION, ON THE OTHER HAND,
AFFECTS ONLY PARTY SWITCHERS.  AND THEY CLEARLY ARE THE GROUP MOST
AMENABLE TO ORGANIZED RAIDING.  I DO NOT AGREE THAT ANY MARGINAL
DIFFERENCE THAT MAY EXIST BETWEEN THE NEW YORK RULE AND THE ILLINOIS
RULE MUST HAVE THE EFFECT OF TRANSFORMING A "LEGITIMATE TIME
LIMITATION," ROSARIO, SUPRA, 410 U.S., AT 762, INTO AN UNCONSTITUTIONAL
DENIAL OF FREEDOM OF ASSOCIATION.  THIS INCONGRUITY UNDERSCORES WHAT I
BELIEVE TO BE THE POTENTIAL MISCHIEF THAT RESULTS FROM AN EASY AND ALL
TOO-READY RESORT TO A STRICT-SCRUTINY STANDARD IN ELECTION CASES OF
THIS KIND.  TO BE SURE, THE LINE BETWEEN CONSTITUTIONALITY AND
UNCONSTITUTIONALITY MUST BE DRAWN SOMEWHERE.  BUT I WOULD NOT DRAW IT
SHORT OF WHAT ILLINOIS HAS DONE HERE. 

MR. JUSTICE REHNQUIST, WITH WHOM MR. JUSTICE BLACKMUN JOINS,
DISSENTING. 

THE COURT DECIDES THAT THE ILLINOIS RULE DISQUALIFYING A PERSON FROM
VOTING IN THE PRIMARY OF ONE POLITICAL PARTY IF HE HAS VOTED IN THE
PRIMARY OF ANOTHER POLITICAL PARTY DURING THE PRECEDING 23 MONTHS
IMPOSES AN IMPERMISSIBLE BURDEN ON ILLINOIS VOTERS'  EXERCISE OF THEIR
RIGHT OF FREE POLITICAL ASSOCIATION.  IN SO DOING IT DISTINGUISHES
ROSARIO V. ROCKEFELLER, 410 U.S. 752 (1973), DECIDED LAST TERM.  I FIND
ROSARIO MORE DIFFICULT TO DISTINGUISH THAN DOES THE COURT.     SECTION
7 - 43 OF THE ILLINOIS ELECTION CODE PROVIDES THAT EVERY PERSON
ELIGIBLE TO REGISTER TO VOTE IS ENTITLED TO VOTE AT PRIMARY ELECTIONS;
IT GOES ON TO SET OUT A NUMBER OF EXCEPTIONS TO THAT GENERAL
ENTITLEMENT, INCLUDING BOTH PERSONS DISQUALIFIED UNDER THE 23-MONTH
RULE CHALLENGED IN THIS CASE AND PERSONS DISQUALIFIED BECAUSE THEY
REFUSE TO DECLARE A PARTY AFFILIATION.  /1/  SECTION 7 - 44 REQUIRES A
PRIMARY VOTER TO DECLARE HIS PARTY AFFILIATION TO THE PRIMARY JUDGES AT
THE POLLING PLACE; IT FURTHER PROVIDES THAT, IF CHALLENGED, THE VOTER
MUST ESTABLISH HIS RIGHT TO VOTE.  /2/  SECTION 7 - 45 REQUIRES A
CHALLENGED VOTER TO SUPPLY AN AFFIDAVIT, IN A STATUTORILY PRESCRIBED
FORM, TO ESTABLISH THAT HE IS ENTITLED TO VOTE UNDER 7 - 43.  THE
AFFIDAVIT STATES, INTER ALIA, THAT THE AFFIANT HAS NOT VOTED IN THE
PRIMARY OF ANY OTHER POLITICAL PARTY WITHIN THE FORBIDDEN 23-MONTH
PERIOD. 

THE ILLINOIS SYSTEM OF PRIMARY ELECTIONS, UNLIKE THE NEW YORK SYSTEM
BEFORE THE COURT IN ROSARIO, DOES NOT REQUIRE A VOTER TO HAVE ENROLLED
AS A MEMBER OF A PARTY MONTHS IN ADVANCE IN ORDER TO BE ELIGIBLE TO
VOTE IN THAT PARTY'S PRIMARY.  ILLINOIS PROVIDES INSTEAD FOR A
DECLARATION OF PARTY AFFILIATION AT THE PRIMARY POLLING PLACE.  AND
ILLINOIS, NOT SURPRISINGLY IN VIEW OF ITS DIFFERENT PRIMARY SYSTEM, HAS
CHOSEN ANOTHER WAY TO PROTECT ITS INTEREST IN PREVENTING "RAIDING" THAN
HAS NEW YORK.  IT IS TRUE, AS THE COURT MAKES CLEAR, THAT THE ILLINOIS
RULE REQUIRES A VOTER AFFILIATED WITH ONE PARTY TO SIT OUT PRIMARIES
DURING A PERIOD OF 23 MONTHS IN ORDER TO EFFECTUATE A SWITCH IN
AFFILIATION TO ANOTHER PARTY AND QUALIFY TO VOTE IN ITS PRIMARIES.  IN
THIS RESPECT ILLINOIS' RULE IMPOSES A GREATER BURDEN ON ITS VOTERS'
ASSOCIATIONAL FREEDOM THAN DOES NEW YORK'S, SINCE IN NEW YORK A
SUFFICIENTLY PRESCIENT AND DILIGENT VOTER CAN VOTE IN A DIFFERENT
PARTY'S PRIMARY EVERY YEAR.  OF COURSE, IT CANNOT BE SAID WHETHER THE
ILLINOIS APPELLEE HERE UNDERWENT HER CHANGE IN PARTY LOYALTY IN TIME,
AND WOULD HAVE TAKEN THE NECESSARY STEPS TO ENROLL, HAD ILLINOIS HAD
NEW YORK'S RULE. 

ON THE OTHER HAND, ILLINOIS' RULE IMPOSES A LESSER BURDEN ON ITS
PREVIOUSLY UNAFFILIATED VOTERS THAN DOES NEW YORK'S.  INDEED, IT
IMPOSES A LESSER BURDEN ON ANY VOTER WHO HAS, FOR WHATEVER REASON,
FAILED TO VOTE IN THE PRIMARY OF ANOTHER PARTY WITHIN THE PAST 23
MONTHS.  SUCH VOTERS ARE NOT REQUIRED TO FORESEE THEIR INTEREST IN THE
PRIMARY BY EIGHT OR MORE MONTHS, AS ARE NEW YORK VOTERS UNDER THE RULE
UPHELD IN ROSARIO.  AS A PRACTICAL MATTER, A VOTER IS NOT REQUIRED TO
SWEAR THAT HE HAS NOT PARTICIPATED IN THE PRIMARY OF ANOTHER PARTY AS A
CONDITION OF HIS RIGHT TO VOTE UNLESS HE IS CHALLENGED.  IN THESE
RESPECTS THE ILLINOIS RULE IS MORE CLOSELY TAILORED TO THE STATE'S
INTEREST IN PREVENTING "RAIDING" THAN IS THE NEW YORK RULE.  VOTERS WHO
HAVE RECENTLY DEMONSTRATED LOYALTY TO ANOTHER PARTY BY VOTING IN ITS
PRIMARY, ARE MORE LIKELY THAN THOSE WHO HAVE NOT TO ENGAGE IN
"RAIDING."  MOREOVER, CHALLENGES FOR VIOLATIONS OF THE 23-MONTH RULE
ARE NOT LIKELY TO BE MADE WHERE NO SERIOUS DANGER OF "RAIDING" IS
PERCEIVED. 

BOTH THE ILLINOIS RULE STRUCK DOWN TODAY AND THE NEW YORK RULE
UPHELD IN ROSARIO RESTRICT VOTERS' FREEDOM TO ASSOCIATE WITH THE
POLITICAL PARTY OF THEIR CHOICE.  IN BOTH INSTANCES THE STATE HAS
SOUGHT TO JUSTIFY THE RESTRICTIONS AS PROMOTING THE STATE'S LEGITIMATE
INTEREST IN PREVENTING "RAIDING."  WHILE NEITHER RULE IS PERFECTLY
FASHIONED TO ACCOMPLISH THAT AND NO OTHER RESULT, I CANNOT CONCLUDE
THAT THE ILLINOIS RULE IMPOSES A SIGNIFICANTLY GREATER BURDEN ON THE
EXERCISE OF ASSOCIATIONAL FREEDOM THAN DOES THE NEW YORK RULE WE UPHELD
LAST TERM IN ROSARIO. 

/1/  ILL. REV. STAT., C. 46, 7 - 43, PROVIDES: 

"EVERY PERSON HAVING RESIDED IN THIS STATE 6 MONTHS AND IN THE
PRECINCT 30 DAYS NEXT PRECEDING ANY PRIMARY THEREIN WHO SHALL BE A
CITIZEN OF THE UNITED STATES ABOVE THE AGE OF 21 YEARS, SHALL BE
ENTITLED TO VOTE AT SUCH PRIMARY. 

"THE FOLLOWING REGULATIONS SHALL BE APPLICABLE TO PRIMARIES: 

"NO PERSON SHALL BE ENTITLED TO VOTE AT A PRIMARY: 

"(A) UNLESS HE DECLARES HIS PARTY AFFILIATIONS AS REQUIRED BY THIS
ARTICLE; 

"(B) WHO SHALL HAVE SIGNED THE PETITION FOR NOMINATION OF A
CANDIDATE OF ANY PARTY WITH WHICH HE DOES NOT AFFILIATE, WHEN SUCH
CANDIDATE IS TO BE VOTED FOR AT THE PRIMARY; 

"(C) WHO SHALL HAVE SIGNED THE NOMINATING PAPERS OF AN INDEPENDENT
CANDIDATE FOR ANY OFFICE FOR WHICH OFFICE CANDIDATES FOR NOMINATION ARE
TO BE VOTED FOR AT SUCH PRIMARY; OR 

"(D) IF HE HAS VOTED AT A PRIMARY HELD UNDER THIS ARTICLE 7 OF
ANOTHER POLITICAL PARTY WITHIN A PERIOD OF 23 CALENDAR MONTHS NEXT
PRECEDING THE CALENDAR MONTH IN WHICH SUCH PRIMARY IS HELD:  PROVIDED,
PARTICIPATION BY A PRIMARY ELECTOR IN A PRIMARY OF A POLITICAL PARTY
WHICH, UNDER THE PROVISIONS OF SECTION 7 - 2 OF THIS ARTICLE, IS A
POLITICAL PARTY WITHIN A CITY, VILLAGE OR INCORPORATED TOWN OR TOWN
ONLY AND ENTITLED HEREUNDER TO MAKE NOMINATIONS OF CANDIDATES FOR CITY,
VILLAGE OR INCORPORATED TOWN OR TOWN OFFICES ONLY, AND FOR NO OTHER
OFFICE OR OFFICES, SHALL NOT DISQUALIFY SUCH PRIMARY ELECTOR FROM
PARTICIPATING IN OTHER PRIMARIES OF HIS PARTY:  AND, PROVIDED, THAT NO
QUALIFIED VOTER SHALL BE PRECLUDED FROM PARTICIPATING IN THE PRIMARY OF
ANY PURELY CITY, VILLAGE OR INCORPORATED TOWN OR TOWN POLITICAL PARTY
UNDER THE PROVISIONS OF SECTION 7 - 2 OF THIS ARTICLE BY REASON OF SUCH
VOTER HAVING VOTED AT THE PRIMARY OF ANOTHER POLITICAL PARTY WITHIN A
PERIOD OF 23 CALENDAR MONTHS NEXT PRECEDING THE CALENDAR MONTH (IN
WHICH SUCH PRIMARY) IN WHICH HE SEEKS TO PARTICIPATE IS HELD. 

"(E) IN CITIES, VILLAGES AND INCORPORATED TOWNS HAVING A BOARD OF
ELECTION COMMISSIONERS ONLY VOTERS REGISTERED AS PROVIDED BY ARTICLE 6
OF THIS ACT SHALL BE ENTITLED TO VOTE AT SUCH PRIMARY. 

"(F) NO PERSON SHALL BE ENTITLED TO VOTE AT A PRIMARY UNLESS HE IS
REGISTERED UNDER THE PROVISIONS OF ARTICLE 4, 5 OR 6 OF THIS ACT, WHEN
HIS REGISTRATION IS REQUIRED BY ANY OF SAID ARTICLES TO ENTITLE HIM TO
VOTE AT THE ELECTION WITH REFERENCE TO WHICH THE PRIMARY IS HELD." 

/2/  ILL. REV. STAT., C. 46, 7 - 44 PROVIDES:  "ANY PERSON DESIRING
TO VOTE AT A PRIMARY SHALL STATE HIS NAME, RESIDENCE AND PARTY
AFFILIATION TO THE PRIMARY JUDGES, ONE OF WHOM SHALL THEREUPON ANNOUNCE
THE SAME IN A DISTINCT TONE OF VOICE, SUFFICIENTLY LOUD TO BE HEARD BY
ALL PERSONS IN THE POLLING PLACE.  WHEN ARTICLE 4, 5 OR 6 IS APPLICABLE
THE CERTIFICATE OF REGISTERED VOTER THEREIN PRESCRIBED SHALL BE MADE
AND SIGNED AND THE OFFICIAL POLL RECORD SHALL BE MADE.  IF THE PERSON
DESIRING TO VOTE IS NOT CHALLENGED, ONE OF THE PRIMARY JUDGES SHALL
GIVE TO HIM ONE, AND ONLY ONE, PRIMARY BALLOT OF THE POLITICAL PARTY
WITH WHICH HE DECLARES HIMSELF AFFILIATED, ON THE BACK OF WHICH SUCH
PRIMARY JUDGE SHALL ENDORSE HIS INITIALS IN SUCH MANNER THAT THEY MAY
BE SEEN WHEN THE PRIMARY BALLOT IS PROPERLY FOLDED.  IF THE PERSON
DESIRING TO VOTE IS CHALLENGED HE SHALL NOT RECEIVE A PRIMARY BALLOT
FROM THE PRIMARY JUDGES UNTIL HE SHALL HAVE ESTABLISHED HIS RIGHT TO
VOTE AS HEREINAFTER PROVIDED.  NO PERSON WHO REFUSES TO STATE HIS PARTY
AFFILIATION SHALL BE ALLOWED TO VOTE AT A PRIMARY." 

ALDUS S. MITCHELL ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE WILLIAM R. MING, JR., AND SOPHIA H. HALL. 

RAY JEFFREY COHEN ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 
..END :
















LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, ET AL. V. TURLEY ET AL. 414
U.S. 70 



       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

           DISTRICT OF NEW YORK 

NO. 72 - 331.  ARGUED OCTOBER 10, 1973--DECIDED NOVEMBER 19, 1973;
342 F.SUPP.  544, AFFIRMED. 


    NEW YORK STATUTES REQUIRE PUBLIC CONTRACTS TO PROVIDE THAT IF A

  CONTRACTOR REFUSES TO WAIVE IMMUNITY OR TO TESTIFY CONCERNING HIS

  STATE CONTRACTS, HIS EXISTING CONTRACTS MAY BE CANCELED AND HE

  SHALL BE DISQUALIFIED FROM FURTHER TRANSACTIONS WITH THE STATE

  FOR FIVE YEARS, AND FURTHER REQUIRE DISQUALIFICATION FROM

  CONTRACTING WITH PUBLIC AUTHORITIES UPON A PERSON'S FAILURE TO

  WAIVE IMMUNITY OR ANSWER QUESTIONS RESPECTING HIS STATE

  TRANSACTIONS.  APPELLEES, NEW YORK-LICENSED ARCHITECTS, WHEN

  SUMMONED TO TESTIFY BEFORE A GRAND JURY INVESTIGATING VARIOUS

  CRIMINAL CHARGES, REFUSED TO SIGN WAIVERS OF IMMUNITY, WHEREUPON

  VARIOUS CONTRACTING AUTHORITIES WERE NOTIFIED OF APPELLEES'

  CONDUCT AND HAD THEIR ATTENTION CALLED TO THE APPLICABLE

  DISQUALIFICATION STATUTES.  APPELLEES THEREAFTER BROUGHT THIS

  ACTION CHALLENGING THE STATUTES AS VIOLATIVE OF THEIR

  CONSTITUTIONAL PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION.  A

  THREE-JUDGE DISTRICT COURT DECLARED THE STATUTES UNCONSTITUTIONAL

  UNDER THE FOURTEENTH AND FIFTH AMENDMENTS.  HELD: 

     1.  THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
IS

  NOT INAPPLICABLE SIMPLY BECAUSE THE ISSUE ARISES IN THE CONTEXT

  OF OFFICIAL INQUIRIES INTO THE JOB PERFORMANCE OF A PUBLIC

  CONTRACTOR.  THE ORDINARY RULE IS THAT THE PRIVILEGE IS AVAILABLE

TO WITNESSES CALLED BEFORE A GRAND JURY AS THESE APPELLEES WERE,

  AND THE STATE'S LEGITIMATE INTEREST IN MAINTAINING THE INTEGRITY

  OF ITS CIVIL SERVICE AND OF ITS TRANSACTIONS WITH INDEPENDENT

  CONTRACTORS, LIKE OTHER STATE CONCERNS, CANNOT OVERRIDE THE

  REQUIREMENTS OF THE FIFTH AMENDMENT.  PP. 77 - 79. 

     2.  THE STATE COULD NOT COMPEL TESTIMONY THAT HAD NOT BEEN

  IMMUNIZED AND THE WAIVER SOUGHT BY THE STATE, UNDER THREAT OF

  LOSS OF CONTRACTS, WOULD HAVE BEEN NO LESS COMPELLED THAN A

  DIRECT REQUEST FOR THE TESTIMONY WITHOUT RESORT TO THE WAIVER

  DEVICE, GARRITY V. NEW JERSEY, 385 U.S. 493; GARDNER V.

  BRODERICK, 392 U.S. 273; SANITATION MEN V. SANITATION COMM'R, 392

  U.S. 280, AND THERE IS NO CONSTITUTIONAL DISTINCTION IN TERMS OF

COMPULSION BETWEEN THE THREAT OF JOB LOSS IN THOSE CASES AND THE

  THREAT OF CONTRACT LOSS TO A CONTRACTOR.  PP. 79 - 84. 

     3.  UNDER A PROPER ACCOMMODATION BETWEEN THE INTEREST OF THE

  STATE AND THE FIFTH AMENDMENT, THE STATE CAN REQUIRE EMPLOYEES OR

  CONTRACTORS TO RESPOND TO INQUIRIES, BUT ONLY IF IT OFFERS THEM

  IMMUNITY SUFFICIENT TO SUPPLANT THEIR FIFTH AMENDMENT PRIVILEGE. 

  KASTIGAR V. UNITED STATES, 406 U.S. 441.  PP. 84 - 85. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED, AND IN
WHICH BRENNAN, J., JOINED BY A SEPARATE QUALIFYING OPINION, IN WHICH
DOUGLAS AND MARSHALL, JJ., JOINED, POST, P. 85. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

NEW YORK GENERAL MUNICIPAL LAW 103-A AND 103-B AND NEW YORK PUBLIC
AUTHORITIES LAW 2601 AND 2602 REQUIRE PUBLIC CONTRACTS TO PROVIDE THAT
IF A CONTRACTOR REFUSES TO WAIVE IMMUNITY OR TO ANSWER QUESTIONS WHEN
CALLED TO TESTIFY CONCERNING HIS CONTRACTS WITH THE STATE OR ANY OF ITS
SUBDIVISIONS, HIS EXISTING CONTRACTS MAY BE CANCELED AND HE SHALL BE
DISQUALIFIED FROM FURTHER TRANSACTIONS WITH THE STATE FOR FIVE YEARS. 
/1/  IN ADDITION TO SPECIFYING THESE CONTRACT TERMS, THE STATUTES
REQUIRE DISQUALIFICATION FROM CONTRACTING WITH PUBLIC AUTHORITIES UPON
FAILURE OF ANY PERSON TO WAIVE IMMUNITY OR TO ANSWER QUESTIONS WITH
RESPECT TO HIS TRANSACTIONS WITH THE STATE OR ITS SUBDIVISIONS.  THE
ISSUE IN THIS CASE IS WHETHER THESE SECTIONS ARE CONSISTENT WITH THE
FOURTEENTH AMENDMENT INSOFAR AS IT MAKES APPLICABLE TO THE STATES THE
FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION. 

        I 

APPELLEES ARE TWO ARCHITECTS LICENSED BY THE STATE OF NEW YORK. 
THEY WERE SUMMONED TO TESTIFY BEFORE A GRAND JURY INVESTIGATING VARIOUS
CHARGES OF CONSPIRACY, BRIBERY, AND LARCENY.  THEY WERE ASKED, BUT
REFUSED, TO SIGN WAIVERS OF IMMUNITY, THE EFFECT OF WHICH WOULD HAVE
BEEN TO WAIVE THEIR RIGHT NOT TO BE COMPELLED IN A CRIMINAL CASE TO BE
A WITNESS AGAINST THEMSELVES.  THEY WERE THEN EXCUSED AND THE DISTRICT
ATTORNEY, AS DIRECTED BY LAW, NOTIFIED VARIOUS CONTRACTING AUTHORITIES
OF APPELLEES'  CONDUCT AND CALLED ATTENTION TO THE APPLICABLE
DISQUALIFICATION STATUTES.  APPELLEES THEREUPON BROUGHT THIS ACTION
ALLEGING THAT THEIR EXISTING CONTRACTS AND FURTHER CONTRACTING
PRIVILEGES WERE THREATENED AND ASSERTED THAT THE PERTINENT STATUTORY
PROVISIONS WERE VIOLATIVE OF THE CONSTITUTIONAL PRIVILEGE AGAINST
COMPELLED SELF-INCRIMINATION.  A THREE-JUDGE DISTRICT COURT WAS
CONVENED AND DECLARED THE FOUR STATUTORY PROVISIONS AT ISSUE
UNCONSTITUTIONAL UNDER THE FOURTEENTH AND FIFTH AMENDMENTS, 342
F.SUPP.  544 (WDNY 1972).  WE NOTED PROBABLE JURISDICTION, 410 U.S. 924
(1973).  THE STATE APPEALED PURSUANT TO 28 U.S.C. 1253.  WE AFFIRM THE
JUDGMENT OF THE DISTRICT COURT. 

        II 

THE FIFTH AMENDMENT PROVIDES THAT NO PERSON "SHALL BE COMPELLED IN
ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  THE AMENDMENT NOT
ONLY PROTECTS THE INDIVIDUAL AGAINST BEING INVOLUNTARILY CALLED AS A
WITNESS AGAINST HIMSELF IN A CRIMINAL PROSECUTION BUT ALSO PRIVILEGES
HIM NOT TO ANSWER OFFICIAL QUESTIONS PUT TO HIM IN ANY OTHER
PROCEEDING, CIVIL OR CRIMINAL, FORMAL OR INFORMAL, WHERE THE ANSWERS
MIGHT INCRIMINATE HIM IN FUTURE CRIMINAL PROCEEDINGS.  MCCARTHY V.
ARNDSTEIN, 266 U.S. 34, 40 (1924), SQUARELY HELD THAT 

"(THE PRIVILEGE IS NOT ORDINARILY DEPENDENT UPON THE NATURE OF THE
PROCEEDING IN WHICH THE TESTIMONY IS SOUGHT OR IS TO BE USED.  IT
APPLIES ALIKE TO CIVIL AND CRIMINAL PROCEEDINGS, WHEREVER THE ANSWER
MIGHT TEND TO SUBJECT TO CRIMINAL RESPONDIBILITY HIM WHO GIVES IT.  THE
PRIVILEGE PROTECTS A MERE WITNESS AS FULLY AS IT DOES ONE WHO IS ALSO A
PARTY DEFENDANT."  IN THIS RESPECT, MCCARTHY V. ARNDSTEIN REFLECTED THE
SETTLED VIEW IN THIS COURT.  THE OBJECT OF THE AMENDMENT "WAS TO INSURE
THAT A PERSON SHOULD NOT BE COMPELLED, WHEN ACTING AS A WITNESS IN ANY
INVESTIGATION, TO GIVE TESTIMONY WHICH MIGHT TEND TO SHOW THAT HE
HIMSELF HAD COMMITTED A CRIME."  COUNSELMAN V. HITCHCOCK, 142 U.S. 547,
562 (1892).  SEE ALSO BRAM V. UNITED STATES, 168 U.S. 532, 542 - 543
(1897); BROWN V. WALKER, 161 U.S. 591 (1896); BOYD V. UNITED STATES,
116 U.S. 616, 634, 637 - 638 (1886); UNITED STATES V. SALINE BANK, 1
PET. 100 (1828).  THIS IS THE RULE THAT IS NOW APPLICABLE TO THE
STATES.  MALLOY V. HOGAN, 378 U.S. 1 (1964).  "IT MUST BE CONSIDERED
IRRELEVANT THAT THE PETITIONER WAS A WITNESS IN A STATUTORY INQUIRY AND
NOT A DEFENDANT IN A CRIMINAL PROSECUTION, FOR IT HAS LONG BEEN SETTLED
THAT THE PRIVILEGE PROTECTS WITNESSES IN SIMILAR FEDERAL INQUIRIES." 
ID., AT 11.  IN ANY OF THESE CONTEXTS, THEREFORE, A WITNESS PROTECTED
BY THE PRIVILEGE MAY RIGHTFULLY REFUSE TO ANSWER UNLESS AND UNTIL HE IS
PROTECTED AT LEAST AGAINST THE USE OF HIS COMPELLED ANSWERS AND
EVIDENCE DERIVED THEREFROM IN ANY SUBSEQUENT CRIMINAL CASE IN WHICH HE
IS A DEFENDANT.  KASTIGAR V. UNITED STATES, 406 U.S. 441 (1972). 
ABSENT SUCH PROTECTION, IF HE IS NEVERTHELESS COMPELLED TO ANSWER, HIS
ANSWERS ARE INADMISSIBLE AGAINST HIM IN A LATER CRIMINAL PROSECUTION. 
BRAM V. UNITED STATES, SUPRA; BOYD V. UNITED STATES, SUPRA. 

AGAINST THIS BACKGROUND, THERE IS NO ROOM FOR URGING THAT THE FIFTH
AMENDMENT PRIVILEGE IS INAPPLICABLE SIMPLY BECAUSE THE ISSUE ARISES, AS
IT DOES HERE, IN THE CONTEXT OF OFFICIAL INQUIRIES INTO THE JOB
PERFORMANCE OF A PUBLIC CONTRACTOR.  SURELY, THE ORDINARY RULE IS THAT
THE PRIVILEGE IS AVAILABLE TO WITNESSES CALLED BEFORE GRAND JURIES AS
THESE APPELLEE ARCHITECTS WERE.  HALE V. HENKEL, 201 U.S. 43, 66
(1906). 

IT IS TRUE THAT THE STATE HAS A STRONG, LEGITIMATE INTEREST IN
MAINTAINING THE INTEGRITY OF ITS CIVIL SERVICE AND OF ITS TRANSACTIONS
WITH INDEPENDENT CONTRACTORS FURNISHING A WIDE RANGE OF GOODS AND
SERVICES; AND NEW YORK WOULD HAVE IT THAT THIS INTEREST IS SUFFICIENTLY
STRONG TO OVERRIDE THE PRIVILEGE.  THE SUGGESTION IS THAT THE STATE
SHOULD BE ABLE TO INTERROGATE EMPLOYEES AND CONTRACTORS ABOUT THEIR JOB
PERFORMANCE WITHOUT REGARD TO THE FIFTH AMENDMENT, TO DISCHARGE THOSE
WHO REFUSE TO ANSWER OR TO WAIVE THE PRIVILEGE BY WAIVING THE IMMUNITY
THEY WOULD OTHERWISE BE ENTITLED AND TO USE ANY INCRIMINATING ANSWERS
OBTAINED IN SUBSEQUENT CRIMINAL PROSECUTIONS.  BUT CLAIMS OF OVERRIDING
INTERESTS ARE NOT UNUSUAL IN FIFTH AMENDMENT LITIGATION AND THEY HAVE
NOT FARED WELL. 

IN MCCARTHY V. ARNDSTEIN, SUPRA, THE UNITED STATES INSISTED THAT
BECAUSE OF THE STRONG PUBLIC INTEREST IN MARSHALLING AND DISTRIBUTING
ASSETS OF BANKRUPTS, THE FIFTH AMENDMENT SHOULD NOT PROTECT A BANKRUPT
DURING THE OFFICIAL EXAMINATIONS MANDATED BY THE BANKRUPTCY ACT.  THAT
POSITION DID NOT PREVAIL.  THE BANKRUPT'S TESTIMONY COULD BE HAD, BUT
ONLY IF HE WERE AFFORDED SUFFICIENT IMMUNITY TO SUPPLANT THE
PRIVILEGE.  AND LONG BEFORE MCCARTHY V. ARNDSTEIN, THE COURT RECOGNIZED
THAT WITHOUT THE COMPELLED TESTIMONY OF KNOWLEDGEABLE AND PERHAPS
IMPLICATED WITNESSES, THE ENFORCEMENT OF THE TRANSPORTATION LAWS "WOULD
BECOME IMPOSSIBLE," BUT NEVERTHELESS PROCEEDED ON A BASIS THAT
WITNESSES MUST BE GRANTED ADEQUATE IMMUNITY IF THEIR EVIDENCE WAS TO BE
COMPELLED.  BROWN V. WALKER, 161 U.S., AT 610.  SIMILARLY, THE
ENFORCEMENT OF THE ANTITRUST LAWS AGAINST PRIVATE CORPORATIONS WAS AT
STAKE IN HALE V. HENKEL, SUPRA, BUT IMMUNITY WAS ESSENTIAL TO COMMAND
THE TESTIMONY OF INDIVIDUAL WITNESSES.  ALSO, IT WOULD BE DIFFICULT TO
OVERESTIMATE THE IMPORTANCE OF THE INTEREST OF THE STATES IN THE
ENFORCEMENT OF THEIR ORDINARY CRIMINAL LAWS; BUT THE PRICE FOR
INCRIMINATING ANSWERS FROM THIRD-PARTY WITNESSES IS SUFFICIENT IMMUNITY
TO SATISFY THE IMPERATIVES OF THE FIFTH AMENDMENT PRIVILEGE AGAINST
COMPELLED SELF-INCRIMINATION.  FINALLY, IN ALMOST THE VERY CONTEXT HERE
INVOLVED, THIS COURT HAS ONLY RECENTLY HELD THAT EMPLOYEES OF THE STATE
DO NOT FORFEIT THEIR CONSTITUTIONAL PRIVILEGE AND THAT THEY MAY BE
COMPELLED TO RESPOND TO QUESTIONS ABOUT THE PERFORMANCE OF THEIR DUTIES
BUT ONLY IF THEIR ANSWERS CANNOT BE USED AGAINST THEM IN SUBSEQUENT
CRIMINAL PROSECUTIONS.  GARRITY V. NEW JERSEY, 385 U.S. 493 (1967);
GARDNER V. BRODERICK, 392 U.S. 273 (1968); SANITATION MEN V. SANITATION
COMM'R, 392 U.S. 280 (1968). 

        III 

IN GARRITY V. NEW JERSEY, CERTAIN POLICE OFFICERS WERE SUMMONED TO
AN INQUIRY BEING CONDUCTED BY THE ATTORNEY GENERAL CONCERNING THE
FIXING OF TRAFFIC TICKETS.  THEY WERE ASKED QUESTIONS FOLLOWING
WARNINGS THAT IF THEY DID NOT ANSWER THEY WOULD BE REMOVED FROM OFFICE
AND THAT ANYTHING THEY SAID MIGHT BE USED AGAINST THEM IN ANY CRIMINAL
PROCEEDING.  NO IMMUNITY OF ANY KIND WAS OFFERED OR AVAILABLE UNDER
STATE LAW.  THE QUESTIONS WERE ANSWERED AND THE ANSWERS LATER USED OVER
THEIR OBJECTIONS, IN THE PROSECUTIONS FOR CONSPIRACY.  THE COURT HELD
THAT "THE PROTECTION OF THE INDIVIDUAL UNDER THE FOURTEENTH AMENDMENT
AGAINST COERCED STATEMENTS PROHIBITS USE IN SUBSEQUENT CRIMINAL
PROCEEDINGS OF STATEMENTS OBTAINED UNDER THREAT OF REMOVAL FROM OFFICE,
AND THAT IT EXTENDS TO ALL, WHETHER THEY ARE POLICEMEN OR OTHER MEMBERS
OF OUR BODY POLITIC."  385 U.S., AT 500.  THE COURT ALSO HELD THAT IN
THE CONTEXT OF THREATS OF REMOVAL FROM OFFICE THE ACT OF RESPONDING TO
INTERROGATION WAS NOT VOLUNTARY AND WAS NOT AN EFFECTIVE WAIVER OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION, THE COURT CONCEDING, HOWEVER,
THAT THERE MIGHT BE OTHER SITUATIONS "WHERE ONE WHO IS ANXIOUS TO MAKE
A CLEAN BREAST OF THE WHOLE AFFAIR VOLUNTEERS THE INFORMATION."  ID.,
AT 499. 

THE ISSUE IN GARDNER V. BRODERICK, SUPRA, WAS WHETHER THE STATE
MIGHT DISCHARGE A POLICE OFFICER WHO, AFTER HE WAS SUMMONED BEFORE A
GRAND JURY TO TESTIFY ABOUT THE PERFORMANCE OF HIS OFFICIAL DUTIES AND
WAS ADVISED OF HIS RIGHT AGAINST COMPULSORY SELF-INCRIMINATION, THEN
REFUSED TO WAIVE THAT RIGHT AS REQUESTED BY THE STATE.  CONCEDING THAT
APPELLANT COULD BE DISCHARGED FOR REFUSING TO ANSWER QUESTIONS ABOUT
THE PERFORMANCE OF HIS OFFICIAL DUTIES, IF NOT REQUIRED TO WAIVE
IMMUNITY, THE COURT HELD THAT THE OFFICER COULD NOT BE TERMINATED, AS
HE WAS, FOR REFUSING TO WAIVE HIS CONSTITUTIONAL PRIVILEGE.  ALTHOUGH
UNDER GARRITY ANY WAIVER EXECUTED MAY HAVE BEEN INVALID AND ANY ANSWERS
ELICITED INADMISSIBLE IN EVIDENCE, THE STATE DID NOT PURPORT TO
RECOGNIZE AS MUCH AND INSTEAD ATTEMPTED TO COERCE A WAIVER ON THE
PENALTY OF LOSS OF EMPLOYMENT.  THE "TESTIMONY WAS DEMANDED BEFORE THE
GRAND JURY IN PART SO THAT IT MIGHT BE USED TO PROSECUTE HIM, AND NOT
SOLELY FOR THE PURPOSE OF SECURING AN ACCOUNTING OF HIS PERFORMANCE OF
HIS PUBLIC TRUST."  392 U.S., AT 279.  HENCE, THE STATE'S STATUTORY
PROVISION REQUIRING HIS DISMISSAL FOR HIS REFUSAL TO WAIVE IMMUNITY
COULD NOT STAND. 

THE COMPANION CASE, SANITATION MEN V. SANITATION COMM'R, SUPRA, WAS
TO THE SAME EFFECT.  HERE AGAIN, PUBLIC EMPLOYEES WERE OFFICIALLY
INTERROGATED AND ADVISED THAT REFUSAL TO ANSWER AND SIGN WAIVERS OF
IMMUNITY WOULD LEAD TO DISMISSAL.  HERE AGAIN, THE COURT HELD THAT THE
STATE PRESENTED THE EMPLOYEES WITH "A CHOICE BETWEEN SURRENDERING THEIR
CONSTITUTIONAL RIGHTS OR THEIR JOBS," 392 U.S., AT 284, ALTHOUGH
CLEARLY THEY WOULD "SUBJECT THEMSELVES TO DISMISSAL IF THEY REFUSE TO
ACCOUNT FOR THEIR PERFORMANCE OF THEIR PUBLIC TRUST, AFTER PROPER
PROCEEDINGS, WHICH DO NOT INVOLVE AN ATTEMPT TO COERCE THEM TO
RELINQUISH THEIR CONSTITUTIONAL RIGHTS."  ID., AT 285. 

THESE CASES, AND THEIR PREDECESSORS, ULTIMATELY REST ON A
RECONCILIATION OF THE WELL-RECOGNIZED POLICIES BEHIND THE PRIVILEGE OF
SELF-INCRIMINATION, MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 55
(1964), AND THE NEED OF THE STATE, AS WELL AS THE FEDERAL GOVERNMENT,
TO OBTAIN INFORMATION "TO ASSURE THE EFFECTIVE FUNCTIONING OF
GOVERNMENT," ID., AT 93 (WHITE,J., CONCURRING).  IMMUNITY IS REQUIRED
IF THERE IS TO BE "RATIONAL ACCOMMODATION BETWEEN THE IMPERATIVES OF
THE PRIVILEGE AND THE LEGITIMATE DEMANDS OF GOVERNMENT TO COMPEL
CITIZENS TO TESTIFY."  KASTIGAR V. UNITED STATES, 406 U.S., AT 446.  IT
IS IN THIS SENSE THAT IMMUNITY STATUTES HAVE "BECOME PART OF OUR
CONSTITUTIONAL FABRIC."  ULLMANN V. UNITED STATES, 350 U.S. 422, 438
(1956).  /2/ 

WE AGREE WITH THE DISTRICT COURT THAT GARRITY, GARDNER, AND
SANITATION MEN CONTROL THE ISSUE NOW BEFORE US.  THE STATE SOUGHT TO
INTERROGATE APPELLEES ABOUT THEIR TRANSACTIONS WITH THE STATE AND TO
REQUIRE THEM TO FURNISH POSSIBLY INCRIMINATING TESTIMONY BY DEMANDING
THAT THEY WAIVE THEIR IMMUNITY AND BY DISQUALIFYING THEM AS PUBLIC
CONTRACTORS WHEN THEY REFUSED.  IT SEEMS TO US THAT THE STATE INTENDED
TO ACCOMPLISH WHAT GARRITY SPECIFICALLY PROHIBITED--TO COMPEL TESTIMONY
THAT HAD NOT BEEN IMMUNIZED.  THE WAIVER SOUGHT BY THE STATE, UNDER
THREAT OF LOSS OF CONTRACTS, WOULD HAVE BEEN NO LESS COMPELLED THAN A
DIRECT REQUEST FOR THE TESTIMONY WITHOUT RESORT TO THE WAIVER DEVICE. 
A WAIVER SECURED UNDER THREAT OF SUBSTANTIAL ECONOMIC SANCTION CANNOT
BE TERMED VOLUNTARY.  AS ALREADY NOTED, GARRITY SPECIFICALLY REJECTED
THE CLAIM OF AN EFFECTIVE WAIVER WHEN THE POLICEMEN IN THAT CASE, IN
THE FACE OF POSSIBLE DISCHARGE, PROCEEDED TO ANSWER THE QUESTIONS PUT
TO THEM.  385 U.S., AT 498.  THE SAME HOLDING IS IMPLICIT IN BOTH
GARDNER AND SANITATION MEN. 

THE STATE NEVERTHELESS ASSERTS THAT WHATEVER MAY BE TRUE OF STATE
EMPLOYEES, A DIFFERENT RULE IS APPLICABLE TO PUBLIC CONTRACTORS SUCH AS
ARCHITECTS.  BECAUSE INDEPENDENT CONTRACTORS MAY NOT DEPEND ENTIRELY ON
TRANSACTIONS WITH THE STATE FOR THEIR LIVELIHOOD, IT IS SUGGESTED THAT
DISQUALIFICATION FROM CONTRACTING WITH OFFICIAL AGENCIES FOR A PERIOD
OF FIVE YEARS IS NEITHER COMPULSION WITHIN THE MEANING OF THE FIFTH
AMENDMENT NOR A FORBIDDEN PENALTY FOR REFUSING TO ANSWER QUESTIONS PUT
TO THEM ABOUT THEIR JOB PERFORMANCE.  BUT WE AGREE WITH THE DISTRICT
COURT THAT "THE PLAINTIFFS' DISQUALIFICATION FROM PUBLIC CONTRACTING
FOR FIVE YEARS AS A PENALTY FOR ASSERTING A CONSTITUTIONAL PRIVILEGE IS
VIOLATIVE OF THEIR FIFTH AMENDMENT RIGHTS."  342 F.SUPP., AT 549.  WE
FAIL TO SEE A DIFFERENCE OF CONSTITUTIONAL MAGNITUDE BETWEEN THE THREAT
OF JOB LOSS TO AN EMPLOYEE OF THE STATE, AND A THREAT OF LOSS OF
CONTRACTS TO A CONTRACTOR.  /3/     IF THE ARGUMENT IS THAT THE COST TO
A CONTRACTOR IS SMALL IN COMPARISON TO THE COST TO AN EMPLOYEE OF
LOSING HIS JOB, THE PREMISE MUST BE THAT IT IS HARDER FOR A STATE
EMPLOYEE TO FIND EMPLOYMENT IN THE PRIVATE SECTOR, THAN IT IS FOR AN
ARCHITECT.  AN ARCHITECT LIVES OFF HIS CONTRACTING FEES AS SURELY AS A
STATE EMPLOYEE LIVES OFF HIS SALARY, AND FEES AND SALARIES MAY BE
EQUALLY HARD TO COME BY IN THE PRIVATE SECTOR AFTER SANCTIONS HAVE BEEN
TAKEN BY THE STATE.  IN SOME SENSE THE PLIGHT OF THE ARCHITECT MAY BE
WORSE, FOR UNDER THE NEW YORK STATUTES IT MAY BE THAT ANY FIRM THAT
EMPLOYS HIM THEREAFTER WILL ALSO BE SUBJECT TO CONTRACT CANCELLATION
AND DISQUALIFICATION.  /4/  A SIGNIFICANT INFRINGEMENT OF
CONSTITUTIONAL RIGHTS CANNOT BE JUSTIFIED BY THE SPECULATIVE ABILITY OF
THOSE AFFECTED TO COVER THE DAMAGE. 

        IV 

WE SHOULD MAKE CLEAR, HOWEVER, THAT WE HAVE SAID BEFORE.  ALTHOUGH
DUE REGARD FOR THE FIFTH AMENDMENT FORBIDS THE STATE TO COMPEL
INCRIMINATING ANSWERS FROM ITS EMPLOYEES AND CONTRACTORS THAT MAY BE
USED AGAINST THEM IN CRIMINAL PROCEEDINGS, THE CONSTITUTION PERMITS
THAT VERY TESTIMONY TO BE COMPELLED IF NEITHER IT NOR ITS FRUITS ARE
AVAILABLE FOR SUCH USE.  KASTIGAR V. UNITED STATES, SUPRA.
FURTHERMORE, THE ACCOMMODATION BETWEEN THE INTEREST OF THE STATE AND
THE FIFTH AMENDMENT REQUIRES THAT THE STATE HAVE MEANS AT ITS DISPOSAL
TO SECURE TESTIMONY IF IMMUNITY IS SUPPLIED AND TESTIMONY IS STILL
REFUSED.  THIS IS RECOGNIZED BY THE POWER OF THE COURTS TO COMPEL
TESTIMONY, AFTER A GRANT OF IMMUNITY, BY USE OF CIVIL CONTEMPT AND
COERCED IMPRISONMENT.  SHILLITANI V. UNITED STATES, 384 U.S. 364
(1966).  ALSO, GIVEN ADEQUATE IMMUNITY, THE STATE MAY PLAINLY INSIST
THAT EMPLOYEES EITHER ANSWER QUESTIONS UNDER OATH ABOUT THE PERFORMANCE
OF THEIR JOB OR SUFFER THE LOSS OF EMPLOYMENT.  BY LIKE TOKEN, THE
STATE MAY INSIST THAT THE ARCHITECTS INVOLVED IN THIS CASE EITHER
RESPOND TO RELEVANT INQUIRIES ABOUT THE PERFORMANCE OF THEIR CONTRACTS
OR SUFFER CANCELLATION OF CURRENT RELATIONSHIPS AND DISQUALIFICATION
FROM CONTRACTING WITH PUBLIC AGENCIES FOR AN APPROPRIATE TIME IN THE
FUTURE.  BUT THE STATE MAY NOT INSIST THAT APPELLEES WAIVE THEIR FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AND CONSENT TO THE USE
OF THE FRUITS OF THE INTERROGATION IN ANY LATER PROCEEDINGS BROUGHT
AGAINST THEM.  RATHER, THE STATE MUST RECOGNIZE WHAT OUR CASES HOLD:
THAT ANSWERS ELICITED UPON THE THREAT OF THE LOSS OF EMPLOYMENT ARE
COMPELLED AND INADMISSIBLE IN EVIDENCE.  HENCE, IF ANSWERS ARE TO BE
REQUIRED IN SUCH CIRCUMSTANCES STATES MUST OFFER TO THE WITNESS
WHATEVER IMMUNITY IS REQUIRED TO SUPPLANT THE PRIVILEGE AND MAY NOT
INSIST THAT THE EMPLOYEE OR CONTRACTOR WAIVE SUCH IMMUNITY. 

              AFFIRMED. 

/1/  N.Y. GEN. MUNIC.  LAW 103-A AND 103-B (SUPP. 1973 - 1974)
PROVIDE: 

CORPORATIONS AND FIRE DISTRICTS:

"A CLAUSE SHALL BE INSERTED IN ALL SPECIFICATIONS OR CONTRACTS MADE
OR AWARDED BY A MUNICIPAL CORPORATION OR ANY PUBLIC DEPARTMENT, AGENCY
OR OFFICIAL THEREOF ON OR AFTER THE FIRST DAY OF JULY, NINETEEN HUNDRED
FIFTY-NINE OR BY A FIRE DISTRICT OR ANY AGENCY OR OFFICIAL THEREOF ON
OR AFTER THE FIRST DAY OF SEPTEMBER, NINETEEN HUNDRED SIXTY, FOR WORK
OR SERVICES PERFORMED OR TO BE PERFORMED, OR GOODS SOLD OR TO BE SOLD,
TO PROVIDE THAT UPON THE REFUSAL OF A PERSON, WHEN CALLED BEFORE A
GRAND JURY, HEAD OF A STATE DEPARTMENT, TEMPORARY STATE COMMISSION OR
OTHER STATE AGENCY, . . . HEAD OF A CITY DEPARTMENT, OR OTHER CITY
AGENCY, WHICH IS EMPOWERED TO COMPEL THE ATTENDANCE OF WITNESSES AND
EXAMINE THEM UNDER OATH, TO TESTIFY IN AN INVESTIGATION CONCERNING ANY
TRANSACTION OR CONTRACT HAD WITH THE STATE, ANY POLITICAL SUBDIVISION
THEREOF, A PUBLIC AUTHORITY OR WITH ANY PUBLIC DEPARTMENT, AGENCY OR
OFFICIAL OF THE STATE OR OF ANY POLITICAL SUBDIVISION THEREOF OR OF A
PUBLIC AUTHORITY, TO SIGN A WAIVER OF IMMUNITY AGAINST SUBSEQUENT
CRIMINAL PROSECUTION OR TO ANSWER ANY RELEVANT QUESTION CONCERNING SUCH
TRANSACTION OR CONTRACT, 

"(A) SUCH PERSON, AND ANY FIRM, PARTNERSHIP OR CORPORATION OF WHICH
HE IS A MEMBER, PARTNER, DIRECTOR OR OFFICER SHALL BE DISQUALIFIED FROM
THEREAFTER SELLING TO OR SUBMITTING BIDS TO OR RECEIVING AWARDS FROM OR
ENTERING INTO ANY CONTRACTS WITH ANY MUNICIPAL CORPORATION, OR FIRE
DISTRICT, OR ANY PUBLIC DEPARTMENT, AGENCY OR OFFICIAL THEREOF, FOR
GOODS, WORK OR SERVICES, FOR A PERIOD OF FIVE YEARS AFTER SUCH REFUSAL,
AND TO PROVIDE ALSO THAT 

"(B) ANY AND ALL CONTRACTS MADE WITH ANY MUNICIPAL CORPORATION OR
ANY PUBLIC DEPARTMENT, AGENCY OR OFFICIAL THEREOF ON OR AFTER THE FIRST
DAY OF JULY, NINETEEN HUNDRED FIFTY-NINE OR WITH ANY FIRE DISTRICT OR
ANY AGENCY OR OFFICIAL THEREOF ON OR AFTER THE FIRST DAY OF SEPTEMBER,
NINETEEN HUNDRED SIXTY, BY SUCH PERSON, AND BY ANY FIRM, PARTNERSHIP,
OR CORPORATION OF WHICH HE IS A MEMBER, PARTNER, DIRECTOR OR OFFICER
MAY BE CANCELLED OR TERMINATED BY THE MUNICIPAL CORPORATION OR FIRE
DISTRICT WITHOUT INCURRING ANY PENALTY OR DAMAGES ON ACCOUNT OF SUCH
CANCELLATION OR TERMINATION, BUT ANY MONIES OWING BY THE MUNICIPAL
CORPORATION OR FIRE DISTRICT FOR GOODS DELIVERED OR WORK DONE PRIOR TO
THE CANCELLATION OR TERMINATION SHALL BE PAID. 

"THE PROVISIONS OF THIS SECTION AS IN FORCE AND EFFECT PRIOR TO THE
FIRST DAY OF SEPTEMBER, NINETEEN HUNDRED SIXTY, SHALL APPLY TO
SPECIFICATIONS OR CONTRACTS MADE OR AWARDED BY A MUNICIPAL CORPORATION
ON OR AFTER THE FIRST DAY OF JULY, NINETEEN HUNDRED FIFTY-NINE, BUT
PRIOR TO THE FIRST DAY OF SEPTEMBER, NINETEEN HUNDRED SIXTY." 

CORPORATIONS AND FIRE DISTRICTS: 

"ANY PERSON, WHO, WHEN CALLED BEFORE A GRANT JURY, HEAD OF A STATE
DEPARTMENT, TEMPORARY STATE COMMISSION OR OTHER STATE AGENCY, . . .
HEAD OF A CITY DEPARTMENT OR OTHER CITY AGENCY, WHICH IS EMPOWERED TO
COMPEL THE ATTENDANCE OF WITNESSES AND EXAMINE THEM UNDER OATH, TO
TESTIFY IN AN INVESTIGATION CONCERNING ANY TRANSACTION OR CONTRACT HAD
WITH THE STATE, ANY POLITICAL SUBDIVISION THEREOF, A PUBLIC AUTHORITY,
OR WITH A PUBLIC DEPARTMENT, AGENCY OR OFFICIAL OF THE STATE OR OF ANY
POLITICAL SUBDIVISION THEREOF OR OF A PUBLIC AUTHORITY, REFUSES TO SIGN
A WAIVER OF IMMUNITY AGAINST SUBSEQUENT CRIMINAL PROSECUTION OR TO
ANSWER ANY RELEVANT QUESTION CONCERNING SUCH TRANSACTION OR CONTRACT,
AND ANY FIRM, PARTNERSHIP OR CORPORATION OF WHICH HE IS A MEMBER,
PARTNER, DIRECTOR OR OFFICER SHALL BE DISQUALIFIED FROM THEREAFTER
SELLING TO OR SUBMITTING BIDS TO OR RECEIVING AWARDS FROM OR ENTERING
INTO ANY CONTRACTS WITH ANY MUNICIPAL CORPORATION OR FIRE DISTRICT, OR
WITH ANY PUBLIC DEPARTMENT, AGENCY OR OFFICIAL THEREOF, FOR GOODS, WORK
OR SERVICES, FOR A PERIOD OF FIVE YEARS AFTER SUCH REFUSAL OR UNTIL A
DISQUALIFICATION SHALL BE REMOVED PURSUANT TO THE PROVISIONS OF SECTION
ONE HUNDRED THREE-C OF THIS ARTICLE. 

"IT SHALL BE THE DUTY OF THE OFFICER CONDUCTING THE INVESTIGATION
BEFORE THE GRAND JURY, THE HEAD OF A STATE DEPARTMENT, THE CHAIRMAN OF
THE TEMPORARY STATE COMMISSION OR OTHER STATE AGENCY, . . . THE HEAD OF
A CITY DEPARTMENT OR OTHER CITY AGENCY BEFORE WHICH THE REFUSAL OCCURS
TO SEND NOTICE OF SUCH REFUSAL, TOGETHER WITH THE NAMES OF ANY FIRM,
PARTNERSHIP, OR CORPORATION OF WHICH THE PERSON SO REFUSING IS KNOWN TO
BE A MEMBER, PARTNER, OFFICER OR DIRECTOR, TO THE COMMISSIONER OF
TRANSPORTATION OF THE STATE OF NEW YORK AND THE APPROPRIATE
DEPARTMENTS, AGENCIES AND OFFICIALS OF THE STATE, POLITICAL
SUBDIVISIONS THEREOF OR PUBLIC AUTHORITIES WITH WHOM THE PERSON SO
REFUSING AND ANY FIRM, PARTNERSHIP OR CORPORATION OF WHICH HE IS A
MEMBER, PARTNER, DIRECTOR OR OFFICER, IS KNOWN TO HAVE A CONTRACT. 
HOWEVER, WHEN SUCH REFUSAL OCCURS BEFORE A BODY OTHER THAN A GRAND
JURY, NOTICE OF REFUSAL SHALL NOT BE SENT FOR A PERIOD OF TEN DAYS
AFTER SUCH REFUSAL OCCURS.  PRIOR TO THE EXPIRATION OF THIS TEN DAY
PERIOD, ANY PERSON, FIRM, PARTNERSHIP OR CORPORATION WHICH HAS BECOME
LIABLE TO THE CANCELLATION OR TERMINATION OF A CONTRACT OR
DISQUALIFICATION TO CONTRACT ON ACCOUNT OF SUCH REFUSAL MAY COMMENCE A
SPECIAL PROCEEDING AT A SPECIAL TERM OF THE SUPREME COURT, HELD WITHIN
THE JUDICIAL DISTRICT IN WHICH THE REFUSAL OCCURRED, FOR AN ORDER
DETERMINING WHETHER THE QUESTIONS IN RESPONSE TO WHICH THE REFUSAL
OCCURRED WERE RELEVANT AND MATERIAL TO THE INQUIRY.  UPON THE
COMMENCEMENT OF SUCH PROCEEDING, THE SENDING OF SUCH NOTICE OF REFUSAL
TO ANSWER SHALL BE SUBJECT TO ORDER OF THE COURT IN WHICH THE
PROCEEDING WAS BROUGHT IN A MANNER AND ON SUCH TERMS AS THE COURT MAY
DEEM JUST.  IF A PROCEEDING IS NOT BROUGHT WITHIN TEN DAYS, NOTICE OF
REFUSAL SHALL THEREUPON BE SENT AS PROVIDED HEREIN." 

N.Y. PUB. AUTH.  LAW 2601 AND 2602 (SUPP. 1973 - 1974) PROVIDE: 

AUTHORITY: 

"A CLAUSE SHALL BE INSERTED IN ALL SPECIFICATIONS OR CONTRACTS
HEREAFTER MADE OR AWARDED BY ANY PUBLIC AUTHORITY OR BY ANY OFFICIAL OF
ANY PUBLIC AUTHORITY CREATED BY THE STATE OR ANY POLITICAL SUBDIVISION,
FOR WORK OR SERVICES PERFORMED OR TO BE PERFORMED OR GOODS SOLD OR TO
BE SOLD, TO PROVIDE THAT UPON THE REFUSAL BY A PERSON, WHEN CALLED
BEFORE A GRAND JURY, HEAD OF A STATE DEPARTMENT, TEMPORARY STATE
COMMISSION OR OTHER STATE AGENCY, . . . HEAD OF A CITY DEPARTMENT, OR
OTHER CITY AGENCY, WHICH IS EMPOWERED TO COMPEL THE ATTENDANCE OF
WITNESSES AND EXAMINE THEM UNDER OATH, TO TESTIFY IN AN INVESTIGATION
CONCERNING ANY TRANSACTION OR CONTRACT HAD WITH THE STATE, ANY
POLITICAL SUBDIVISION THEREOF, A PUBLIC AUTHORITY OR WITH ANY PUBLIC
DEPARTMENT, AGENCY OR OFFICIAL OF THE STATE OR OF ANY POLITICAL
SUBDIVISION THEREOF OR OF A PUBLIC AUTHORITY, TO SIGN A WAIVER OF
IMMUNITY AGAINST SUBSEQUENT CRIMINAL PROSECUTION OR TO ANSWER ANY
RELEVANT QUESTION CONCERNING SUCH TRANSACTION OR CONTRACT, 

"(A) SUCH PERSON, AND ANY FIRM, PARTNERSHIP OR CORPORATION OF WHICH
HE IS A MEMBER, PARTNER, DIRECTOR OR OFFICER SHALL BE DISQUALIFIED FROM
THEREAFTER SELLING TO OR SUBMITTING BIDS TO OR RECEIVING AWARDS FROM OR
ENTERING INTO ANY CONTRACTS WITH ANY PUBLIC AUTHORITY OR OFFICIAL
THEREOF, FOR GOODS, WORK OR SERVICES, FOR A PERIOD OF FIVE YEARS AFTER
SUCH REFUSAL, AND TO PROVIDE ALSO THAT

"(B) ANY AND ALL CONTRACTS MADE WITH ANY PUBLIC AUTHORITY OR
OFFICIAL THEREOF, SINCE THE EFFECTIVE DATE OF THIS LAW, BY SUCH PERSON
AND BY ANY FIRM, PARTNERSHIP OR CORPORATION OF WHICH HE IS A MEMBER,
PARTNER, DIRECTOR OF OFFICER MAY BE CANCELLED OR TERMINATED BY THE
PUBLIC AUTHORITY WITHOUT INCURRING ANY PENALTY OR DAMAGES ON ACCOUNT OF
SUCH CANCELLATION OR TERMINATION, BUT ANY MONIES OWING BY THE PUBLIC
AUTHORITY FOR GOODS DELIVERED OR WORK DONE PRIOR TO THE CANCELLATION OR
TERMINATION SHALL BE PAID." 


"ANY PERSON, WHO, WHEN CALLED BEFORE A GRAND JURY, HEAD OF A STATE
DEPARTMENT, TEMPORARY STATE COMMISSION OR OTHER STATE AGENCY, . . .
HEAD OF A CITY DEPARTMENT, OR OTHER CITY AGENCY, WHICH IS EMPOWERED TO
COMPEL THE ATTENDANCE OF WITNESSES AND EXAMINE THEM UNDER OATH, TO
TESTIFY IN AN INVESTIGATION CONCERNING ANY TRANSACTION OR CONTRACT HAD
WITH THE STATE, ANY POLITICAL SUBDIVISION THEREOF, A PUBLIC AUTHORITY
OR WITH A PUBLIC DEPARTMENT, AGENCY OR OFFICIAL OF THE STATE OR OF ANY
POLITICAL SUBDIVISION THEREOF OR OF A PUBLIC AUTHORITY, REFUSES TO SIGN
A WAIVER OF IMMUNITY AGAINST SUBSEQUENT CRIMINAL PROSECUTION OR TO
ANSWER ANY RELEVANT QUESTIONS CONCERNING SUCH TRANSACTION OR CONTRACT,
AND ANY FIRM, PARTNERSHIP OR CORPORATION, OF WHICH HE IS A MEMBER,
PARTNER, DIRECTOR, OR OFFICER SHALL BE DISQUALIFIED FROM THEREAFTER
SELLING TO OR SUBMITTING BIDS TO OR RECEIVING AWARDS FROM OR ENTERING
INTO ANY CONTRACTS WITH ANY PUBLIC AUTHORITY OR ANY OFFICIAL OF ANY
PUBLIC AUTHORITY CREATED BY THE STATE OR ANY POLITICAL SUBDIVISION, FOR
GOODS, WORK OR SERVICES, FOR A PERIOD OF FIVE YEARS AFTER SUCH REFUSAL
OR UNTIL A DISQUALIFICATION SHALL BE REMOVED PURSUANT TO THE PROVISIONS
OF SECTION TWENTY-SIX HUNDRED THREE OF THIS TITLE. 

"IT SHALL BE THE DUTY OF THE OFFICER CONDUCTING THE INVESTIGATION
BEFORE THE GRAND JURY, THE HEAD OF A STATE DEPARTMENT, THE CHAIRMAN OF
THE TEMPORARY STATE COMMISSION OR OTHER STATE AGENCY, . . . THE HEAD OF
A CITY DEPARTMENT OR OTHER CITY AGENCY BEFORE WHICH THE REFUSAL OCCURS
TO SEND NOTICE OF SUCH REFUSAL, TOGETHER WITH THE NAMES OF ANY FIRM,
PARTNERSHIP OR CORPORATION OF WHICH THE PERSON SO REFUSING IS KNOWN TO
BE A MEMBER, PARTNER, OFFICER OR DIRECTOR, TO THE COMMISSIONER OF
TRANSPORTATION OF THE STATE OF NEW YORK, OR THE COMMISSIONER OF GENERAL
SERVICES AS THE CASE MAY BE, AND THE APPROPRIATE DEPARTMENTS, AGENCIES
AND OFFICIALS OF THE STATE, POLITICAL SUBDIVISIONS THEREOF OR PUBLIC
AUTHORITIES WITH WHOM THE PERSONS SO REFUSING AND ANY FIRM, PARTNERSHIP
OR CORPORATION OF WHICH HE IS A MEMBER, PARTNER, DIRECTOR OR OFFICER,
IS KNOWN TO HAVE A CONTRACT.  HOWEVER, WHEN SUCH REFUSAL OCCURS BEFORE
A BODY OTHER THAN A GRAND JURY, NOTICE OF REFUSAL SHALL NOT BE SENT FOR
A PERIOD OF TEN DAYS AFTER SUCH REFUSAL OCCURS.  PRIOR TO THE
EXPIRATION OF THIS TEN DAY PERIOD, ANY PERSON, FIRM, PARTNERSHIP OR
CORPORATION WHICH HAS BECOME LIABLE TO THE CANCELLATION OR TERMINATION
OF A CONTRACT OR DISQUALIFICATION TO CONTRACT ON ACCOUNT OF SUCH
REFUSAL MAY COMMENCE A SPECIAL PROCEEDING AT A SPECIAL TERM OF THE
SUPREME COURT, HELD WITHIN THE JUDICIAL DISTRICT IN WHICH THE REFUSAL
OCCURRED, FOR AN ORDER DETERMINING WHETHER THE QUESTIONS IN RESPONSE TO
WHICH THE REFUSAL OCCURRED WERE RELEVANT AND MATERIAL TO THE INQUIRY. 
UPON THE COMMENCEMENT OF SUCH PROCEEDING, THE SENDING OF SUCH NOTICE OF
REFUSAL TO ANSWER SHALL BE SUBJECT TO ORDER OF THE COURT IN WHICH THE
PROCEEDING WAS BROUGHT IN A MANNER AND ON SUCH TERMS AS THE COURT MAY
DEEM JUST.  IF A PROCEEDING IS NOT BROUGHT WITHIN TEN DAYS, NOTICE OF
REFUSAL SHALL THEREUPON BE SENT AS PROVIDED HEREIN."     /2/  IN ORLOFF
V. WILLOUGHBY, 345 U.S. 83 (1953), A DOCTOR INDUCTED INTO THE ARMY WAS
DENIED A COMMISSION AS AN OFFICER AFTER REFUSING TO DIVULGE WHETHER HE
WAS A COMMUNIST, AS REQUIRED BY A LOYALTY CERTIFICATE PRESCRIBED FOR
COMMISSIONED OFFICERS.  INSTEAD HE ASSERTED HIS "FEDERAL CONSTITUTIONAL
PRIVILEGE" WHEN CALLED UPON TO ANSWER THE QUESTION.  IN HOLDING THAT
THE GOVERNMENT WAS JUSTIFIED IN REFUSING THE COMMISSION BECAUSE OF
FAILURE TO ANSWER, THE COURT HAD NO OCCASION TO CONSIDER WHETHER ORLOFF
WOULD HAVE BEEN EXPOSED TO CRIMINAL PROSECUTION IF HE HAD STATED THAT
HE WAS A MEMBER OF THE COMMUNIST PARTY.  THE CASE DIFFERS SIGNIFICANTLY
FROM THE ONE BEFORE US SINCE THE STATE HERE ASKS THE ARCHITECTS TO
AFFIRMATIVELY EXPOSE THEMSELVES TO CRIMINAL PROSECUTION BY WAIVING
THEIR PRIVILEGE AGAINST SELF-INCRIMINATION, OR FROM GARRITY WHERE THE
THREAT OF CRIMINAL PROSECUTION WAS APPARENT BOTH FROM THE NATURE OF THE
PROCEEDING, AND THE ABSENCE OF APPLICABLE STATE IMMUNITY STATUTES. 

KIMM V. ROSENBERG, 363 U.S. 405 (1960), IS ALSO INAPPOSITE.  THE
COURT THERE HELD THAT AN ALIEN WHOSE DEPORTATION HAD BEEN ORDERED WAS
INELIGIBLE FOR A DISCRETIONARY ORDER PERMITTING HIS VOLUNTARY
DEPARTURE, BECAUSE HE HAD FAILED TO ESTABLISH THAT HE WAS NOT
AFFILIATED WITH THE COMMUNIST PARTY.  PETITIONER'S IMMINENT DEPARTURE
FROM THE COUNTRY, WHETHER IT WAS VOLUNTARY OR COMPELLED, OBVIOUSLY MADE
THE THREAT OF CRIMINAL PROSECUTION ON THE BASIS OF HIS ANSWER REMOTE. 

/3/  AS GARRITY SUCCINCTLY PUT IT:  "THE OPTION TO LOSE THEIR MEANS
OF LIVELIHOOD OR TO PAY THE PENALTY OF SELF-INCRIMINATION IS THE
ANTITHESIS OF FREE CHOICE TO SPEAK OUT OR TO REMAIN SILENT."  385 U.S.
493, 497 (1967). 

/4/  THE CONTRACT DISQUALIFICATIONS APPLY NOT ONLY TO THE PERSON WHO
REFUSES TO WAIVE IMMUNITY BUT ALSO TO "ANY FIRM, PARTNERSHIP OR
CORPORATION OF WHICH HE IS A MEMBER, PARTNER, DIRECTOR OR OFFICER . . .
. " 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN. 

I JOIN THE COURT'S OPINION IN ALL RESPECTS BUT ONE.  IT IS MY VIEW
THAT IMMUNITY WHICH PERMITS TESTIMONY TO BE COMPELLED "IF NEITHER IT
NOR ITS FRUITS ARE AVAILABLE FOR . . . USE" IN CRIMINAL PROCEEDINGS
DOES NOT SATISFY THE PRIVILEGE AGAINST SELF-INCRIMINATION.  "I BELIEVE
THAT THE FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION
REQUIRES THAT ANY JURISDICTION THAT COMPELS A MAN TO INCRIMINATE
HIMSELF GRANT HIM ABSOLUTE IMMUNITY UNDER ITS LAWS FROM PROSECUTION FOR
ANY TRANSACTION REVEALED IN THAT TESTIMONY."  PICCIRILLO V. NEW YORK,
400 U.S. 548, 562 (1971) (BRENNAN, J., DISSENTING). 

BRENDA SOLOFF, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR APPELLANTS.  WITH HER ON THE BRIEF FOR APPELLANTS LEFKOWITZ
ET AL. WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, PRO SE, AND SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL.  A SEPARATE BRIEF WAS
FILED FOR APPELLANT TUTUSKA. 

RICHARD O. ROBINSON ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLEES. 
..END :




















ESPINOZA ET VIR V. FARAH MANUFACTURING CO., INC. 414 U.S. 86 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT 

NO. 72 - 671.  ARGUED OCTOBER 10 - 11, 1973--DECIDED NOVEMBER 19,
1973; 462 F.2D 1331, AFFIRMED. 


    PETITIONERS, MR. AND MRS. ESPINOZA, BROUGHT SUIT AFTER

  EXHAUSTING THEIR ADMINISTRATIVE REMEDIES WITH THE EQUAL

  EMPLOYMENT OPPORTUNITY COMMISSION (EEOC), ALLEGING THAT

  RESPONDENT'S REFUSAL TO HIRE MRS. ESPINOZA IN ITS SAN ANTONIO

  DIVISION BECAUSE OF HER MEXICAN CITIZENSHIP VIOLATED ^ 703 OF

  TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, WHICH MAKES IT AN

  UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER TO FAIL OR REFUSE TO

  HIRE ANY INDIVIDUAL BECAUSE OF HIS RACE, COLOR, RELIGION, SEX, OR

  NATIONAL ORIGIN.  THE DISTRICT COURT GRANTED PETITIONERS'  MOTION

  FOR SUMMARY JUDGMENT, RELYING PRIMARILY ON AN EEOC GUIDELINE

  PROVIDING THAT A LAWFUL ALIEN RESIDENT MAY NOT BE DISCRIMINATED

  AGAINST ON THE BASIS OF CITIZENSHIP.  THE COURT OF APPEALS

  REVERSED.  HELD:  AN EMPLOYER'S REFUSAL TO HIRE A PERSON BECAUSE

  HE IS NOT A UNITED STATES CITIZEN DOES NOT CONSTITUTE EMPLOYMENT

  DISCRIMINATION ON THE BASIS OF "NATIONAL ORIGIN" IN VIOLATING OF

  ^ 703.  PP. 88 - 96. 

 (A) IN LIGHT OF THE STATUTE'S LEGISLATIVE HISTORY AND THE

  LONGSTANDING PRACTICE OF REQUIRING FEDERAL EMPLOYEES TO BE UNITED

  STATES CITIZENS, IT IS CLEAR THAT CONGRESS DID NOT INTEND THE

  TERM "NATIONAL ORIGIN" TO EMBRACE CITIZENSHIP REQUIREMENTS.  PP.

  88 - 91. 

     (B) THE EEOC'S GUIDELINE, THOUGH PERHAPS SIGNIFICANT IN A WIDE

  RANGE OF OTHER SITUATIONS, DOES NOT APPLY HERE OR SUPPORT THE

PREMISE THAT DISCRIMINATION ON THE BASIS OF CITIZENSHIP IS

 TANTAMOUNT TO DISCRIMINATION ON THE BASIS OF NATIONAL ORIGIN,

  SINCE THERE IS NO SHOWING THAT RESPONDENT (96% OF WHOSE SAN

  ANTONIO DIVISION EMPLOYEES ARE MEXICAN-AMERICANS) DISCRIMINATED

  AGAINST PERSONS OF MEXICAN ORIGIN.  PP. 92 - 95. 

     (C) THOUGH THE ACT PROTECTS ALIENS AGAINST ILLEGAL

  DISCRIMINATION BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL

  ORIGIN, IT DOES NOT PROSCRIBE DISCRIMINATION ON THE BASIS OF

  ALIENAGE.  P. 95. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BRENNAN, STEWART, WHITE, BLACKMUN, POWELL AND REHNQUIST,
JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 96. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES INTERPRETATION OF THE PHRASE "NATIONAL ORIGIN"
IN TIT. VII OF THE CIVIL RIGHTS ACT OF 1964.  PETITIONER CECILIA
ESPINOZA IS A LAWFULLY ADMITTED RESIDENT ALIEN WHO WAS BORN IN AND
REMAINS A CITIZEN OF MEXICO.  SHE RESIDES IN SAN ANTONIO, TEXAS, WITH
HER HUSBAND, RUDOLFO ESPINOZA, A UNITED STATES CITIZEN.  IN JULY 1969,
MRS. ESPINOZA SOUGHT EMPLOYMENT AS A SEAMSTRESS AT THE SAN ANTONIO
DIVISION OF RESPONDENT FARAH MANUFACTURING CO. HER EMPLOYMENT
APPLICATION WAS REJECTED ON THE BASIS OF A LONGSTANDING COMPANY POLICY
AGAINST THE EMPLOYMENT OF ALIENS.  AFTER EXHAUSTING THEIR
ADMINISTRATIVE REMEDIES WITH THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, /1/  PETITIONERS COMMENCED THIS SUIT IN THE DISTRICT COURT
ALLEGING THAT RESPONDENT HAD DISCRIMINATED AGAINST MRS. ESPINOZA
BECAUSE OF HER "NATIONAL ORIGIN" IN VIOLATION OF 703 OF TIT. VII, 78
STAT. 255, 42 U.S.C. 2000E - 2(A)(1).  THE DISTRICT COURT GRANTED
PETITIONERS' MOTION FOR SUMMARY JUDGMENT, HOLDING THAT A REFUSAL TO
HIRE BECAUSE OF LACK OF CITIZENSHIP CONSTITUTES DISCRIMINATION ON THE
BASIS OF "NATIONAL ORIGIN."  343 F.SUPP.  1205.  THE COURT OF APPEALS
REVERSED, CONCLUDING THAT THE STATUTORY PHRASE "NATIONAL ORIGIN" DID
NOT EMBRACE CITIZENSHIP.  462 F.2D 1331.  WE GRANTED THE WRIT TO
RESOLVE THIS QUESTION OF STATUTORY CONSTRUCTION, 411 U.S. 946, AND NOW
AFFIRM. 

EMPLOYER . . . TO FAIL OR REFUSE TO HIRE . . . ANY INDIVIDUAL . . .
BECAUSE OF SUCH INDIVIDUAL'S RACE, COLOR, RELIGION, SEX, OR NATIONAL
ORIGIN."  CERTAINLY THE PLAIN LANGUAGE OF THE STATUTE SUPPORTS THE
RESULT REACHED BY THE COURT OF APPEALS.  THE TERM "NATIONAL ORIGIN" ON
ITS FACE REFERS TO THE COUNTRY WHERE A PERSON WAS BORN, OR, MORE
BROADLY, THE COUNTRY FROM WHICH HIS OR HER ANCESTORS CAME.  /2/ 

THE STATUTE'S LEGISLATIVE HISTORY, THOUGH QUITE MEAGER IN THIS
RESPECT, FULLY SUPPORTS THIS CONSTRUCTION.  THE ONLY DIRECT DEFINITION
GIVEN THE PHRASE "NATIONAL ORIGIN" IS THE FOLLOWING REMARK MADE ON THE
FLOOR OF THE HOUSE OF REPRESENTATIVES BY CONGRESSMAN ROOSEVELT,
CHAIRMAN OF THE HOUSE SUBCOMMITTEE WHICH REPORTED THE BILL:  "IT MEANS
THE COUNTRY FROM WHICH YOU OR YOUR FOREBEARS CAME.  . . . YOU MAY COME
FROM POLAND, CZECHOSLOVAKIA, ENGLAND, FRANCE, OR ANY OTHER COUNTRY." 
110 CONG. REC. 2549 (1964).  WE ALSO NOTE THAT AN EARLIER VERSION OF
703 HAD REFERRED TO DISCRIMINATION BECAUSE OF "RACE, COLOR, RELIGION,
NATIONAL ORIGIN, OR ANCESTRY."  H.R. 7152, 88TH CONG., 1ST SESS., 804,
OCT. 2, 1963 (COMM. PRINT) (EMPHASIS ADDED).  THE DELETION OF THE WORD
"ANCESTRY" FROM THE FINAL VERSION WAS NOT INTENDED AS A MATERIAL
CHANGE, SEE H.R. REP. NO. 914, 88TH CONG., 1ST SESS., 87 (1963),
SUGGESTING THAT THE TERMS "NATIONAL ORIGIN" AND "ANCESTRY" WERE
CONSIDERED SYNONYMOUS. 

THERE ARE OTHER COMPELLING REASONS TO BELIEVE THAT CONGRESS DID NOT
INTEND THE TERM "NATIONAL ORIGIN" TO EMBRACE CITIZENSHIP REQUIREMENTS. 
SINCE 1914, THE FEDERAL GOVERNMENT ITSELF, THROUGH CIVIL SERVICE
COMMISSION REGULATIONS, HAS ENGAGED IN WHAT AMOUNTS TO DISCRIMINATION
AGAINST ALIENS BY DENYING THEM THE RIGHT TO ENTER COMPETITIVE
EXAMINATION FOR FEDERAL EMPLOYMENT.  EXEC. ORDER NO. 1997, H.R. DOC.
NO. 1258, 63D CONG., 3D SESS., 118 (1914); SEE 5 U.S.C. 3301; 5 CFR
338.101 (1972).  BUT IT HAS NEVER BEEN SUGGESTED THAT THE CITIZENSHIP
REQUIREMENT FOR FEDERAL EMPLOYMENT CONSTITUTES DISCRIMINATION BECAUSE
OF NATIONAL ORIGIN, EVEN THOUGH SINCE 1943, VARIOUS EXECUTIVE ORDERS
HAVE EXPRESSLY PROHIBITED DISCRIMINATION ON THE BASIS OF NATIONAL
ORIGIN IN FEDERAL GOVERNMENT EMPLOYMENT.  SEE, E.G., EXEC. ORDER NO.
9346, 8 FED. REG. 7183 (1943); EXEC. ORDER NO. 11478, 34 FED. REG.
12985 (1969). 

MOREOVER, 701(B) OF TIT. VII, IN LANGUAGE CLOSELY PARALLELING 703,
MAKES IT "THE POLICY OF THE UNITED STATES TO INSURE EQUAL EMPLOYMENT
OPPORTUNITIES FOR FEDERAL EMPLOYEES WITHOUT DISCRIMINATION BECAUSE OF .
. . NATIONAL ORIGIN . . . . "  CIVIL RIGHTS ACT OF 1964, PUB. L. 88 -
352, 701(B), 78 STAT. 254, RE-ENACTED, PUB. L. 89 - 554, 80 STAT. 523,
5 U.S.C. 7151.  THE LEGISLATIVE HISTORY OF THAT SECTION REVEALS NO
MENTION OF ANY INTENT ON CONGRESS' PART TO REVERSE THE LONGSTANDING
PRACTICE OF REQUIRING FEDERAL EMPLOYEES TO BE UNITED STATES CITIZENS. 
TO THE CONTRARY, THERE IS EVERY INDICATION THAT NO SUCH REVERSAL WAS
INTENDED.  CONGRESS ITSELF HAS ON SEVERAL OCCASIONS SINCE 1964 ENACTED
STATUTES BARRING ALIENS FROM FEDERAL EMPLOYMENT.  THE TREASURY, POSTAL
SERVICE, AND GENERAL APPROPRIATION ACT OF 1973, FOR EXAMPLE, PROVIDES
THAT "NO PART OF ANY APPROPRIATION CONTAINED IN THIS OR ANY OTHER ACT
SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE
GOVERNMENT OF THE UNITED STATES . . . UNLESS SUCH PERSON (1) IS A
CITIZEN OF THE UNITED STATES."  /3/  PUB. L. 92 - 351, 602, 86 STAT.
487.  SEE ALSO PUB. L. 91 - 144, 502, 83 STAT. 336;; PUB. L. 91 - 439,
502, 84 STAT. 902. 

TO INTERPRET THE TERM "NATIONAL ORIGIN" TO EMBRACE CITIZENSHIP
REQUIREMENTS WOULD REQUIRE US TO CONCLUDE THAT CONGRESS ITSELF HAS
REPEATEDLY FLOUTED ITS OWN DECLARATION OF POLICY.  THIS COURT CANNOT
LIGHTLY FIND SUCH A BREACH OF FAITH.  SEE BATE REFRIGERATING CO. V.
SULZBERGER, 157 U.S. 1, 38 (1895).  SO FAR AS FEDERAL EMPLOYMENT IS
CONCERNED, WE THINK IT PLAIN THAT CONGRESS HAS ASSUMED THAT THE BAN ON
NATIONAL-ORIGIN DISCRIMINATION IN 701 (B) DID NOT AFFECT THE HISTORICAL
PRACTICE OF REQUIRING CITIZENSHIP AS A CONDITION OF EMPLOYMENT.  SEE
FIRST NATIONAL BANK V. MISSOURI, 263 U.S. 640, 658 (1924).  AND THERE
IS NO REASON TO BELIEVE CONGRESS INTENDED THE TERM "NATIONAL ORIGIN" IN
703 TO HAVE ANY BROADER SCOPE.  CF. KING V. SMITH, 392 U.S. 309, 330 -
331 (1968). 

PETITIONERS HAVE SUGGESTED THAT THE STATUTES AND REGULATIONS
DISCRIMINATING AGAINST NONCITIZENS IN FEDERAL EMPLOYMENT ARE
UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 
WE NEED NOT ADDRESS THAT QUESTION HERE, /4/  FOR THE ISSUE PRESENTED IN
THIS CASE IS NOT WHETHER CONGRESS HAS THE POWER TO DISCRIMINATE AGAINST
ALIENS IN FEDERAL EMPLOYMENT, BUT RATHER, WHETHER CONGRESS INTENDED TO
PROHIBIT SUCH DISCRIMINATION IN PRIVATE EMPLOYMENT.  SUFFICE IT TO SAY
THAT WE CANNOT CONCLUDE CONGRESS WOULD AT ONCE CONTINUE THE PRACTICE OF
REQUIRING CITIZENSHIP AS A CONDITION OF FEDERAL EMPLOYMENT AND, AT THE
SAME TIME, PREVENT PRIVATE EMPLOYERS FROM DOING LIKEWISE.  INTERPRETING
703 AS PETITIONERS SUGGEST WOULD ACHIEVE THE RATHER BIZARRE RESULT OF
PREVENTING FARAH FROM INSISTING ON UNITED STATES CITIZENSHIP AS A
CONDITION OF EMPLOYMENT WHILE THE VERY AGENCY CHARGED WITH ENFORCEMENT
OF TIT. VII WOULD ITSELF BE REQUIRED BY CONGRESS TO PLACE SUCH A
CONDITION ON ITS OWN PERSONNEL. 

THE DISTRICT COURT DREW PRIMARY SUPPORT FOR ITS HOLDING FROM AN
INTERPRETATIVE GUIDELINE ISSUED BY THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION WHICH PROVIDES: 

     "BECAUSE DISCRIMINATION ON THE BASIS OF CITIZENSHIP HAS THE

  EFFECT OF DISCRIMINATING ON THE BASIS OF NATIONAL ORIGIN, A

  LAWFULLY IMMIGRATED ALIEN WHO IS DOMICILED OR RESIDING IN THIS

  COUNTRY MAY NOT BE DISCRIMINATED AGAINST ON THE BASIS OF HIS

  CITIZENSHIP . . . ."  29 CFR 1606.1(D) (1972). 

LIKE THE COURT OF APPEALS, WE HAVE NO OCCASION HERE TO QUESTION THE
GENERAL VALIDITY OF THIS GUIDELINE INSOFAR AS IT CAN BE READ AS AN
EXPRESSION OF THE COMMISSION'S BELIEF THAT THERE MAY BE MANY SITUATIONS
WHERE DISCRIMINATION ON THE BASIS OF CITIZENSHIP WOULD HAVE THE EFFECT
OF DISCRIMINATING ON THE BASIS OF NATIONAL ORIGIN.  IN SOME INSTANCES,
FOR EXAMPLE, A CITIZENSHIP REQUIREMENT MIGHT BE BUT ONE PART OF A WIDER
SCHEME OF UNLAWFUL NATIONAL-ORIGIN DISCRIMINATION.  IN OTHER CASES, AN
EMPLOYER MIGHT USE A CITIZENSHIP TEST AS A PRETEXT TO DISGUISE WHAT IS
IN FACT NATIONAL-ORIGIN DISCRIMINATION.  CERTAINLY TIT. VII PROHIBITS
DISCRIMINATION ON THE BASIS OF CITIZENSHIP WHENEVER IT HAS THE PURPOSE
OR EFFECT OF DISCRIMINATING ON THE BASIS OF NATIONAL ORIGIN.  "THE ACT
PROSCRIBES NOT ONLY OVERT DISCRIMINATION BUT ALSO PRACTICES THAT ARE
FAIR IN FORM, BUT DISCRIMINATORY IN OPERATION."  GRIGGS V. DUKE POWER
CO., 401 U.S. 424, 431 (1971). 

IT IS EQUALLY CLEAR, HOWEVER, THAT THESE PRINCIPLES LEND NO SUPPORT
TO PETITIONERS IN THIS CASE.  THERE IS NO INDICATION IN THE RECORD THAT
FARAH'S POLICY AGAINST EMPLOYMENT OF ALIENS HAD THE PURPOSE OR EFFECT
OF DISCRIMINATING AGAINST PERSONS OF MEXICAN NATIONAL ORIGIN.  /5/  IT
IS CONCEDED THAT FARAH ACCEPTS EMPLOYEES OF MEXICAN ORIGIN, PROVIDED
THE INDIVIDUAL CONCERNED HAS BECOME AN AMERICAN CITIZEN.  INDEED, THE
DISTRICT COURT FOUND THAT PERSONS OF MEXICAN ANCESTRY MAKE UP MORE THAN
96% OF THE EMPLOYEES AT THE COMPANY'S SAN ANTONIO DIVISION, AND 97% OF
THOSE DOING THE WORK FOR WHICH MRS. ESPINOZA APPLIED.  WHILE STATISTICS
SUCH AS THESE DO NOT AUTOMATICALLY SHIELD AN EMPLOYER FROM A CHARGE OF
UNLAWFUL DISCRIMINATION, THE PLAIN FACT OF THE MATTER IS THAT FARAH
DOES NOT DISCRIMINATE AGAINST PERSONS OF MEXICAN NATIONAL ORIGIN WITH
RESPECT TO EMPLOYMENT IN THE JOB MRS.  ESPINOZA SOUGHT.  SHE WAS DENIED
EMPLOYMENT, NOT BECAUSE OF THE COUNTRY OF HER ORIGIN, BUT BECAUSE SHE
HAD NOT YET ACHIEVED UNITED STATES CITIZENSHIP.  IN FACT, THE RECORD
SHOWS THAT THE WORKER HIRED IN PLACE OF MRS. ESPINOZA WAS A CITIZEN
WITH A SPANISH SURNAME. 

THE COMMISSION'S GUIDELINE MAY HAVE SIGNIFICANCE FOR A WIFE RANGE OF
SITUATIONS, BUT NOT FOR A CASE SUCH AS THIS WHERE ITS VERY PREMISE-
THAT DISCRIMINATION ON THE BASIS OF CITIZENSHIP HAS THE EFFECT OF
DISCRIMINATION ON THE BASIS OF NATIONAL ORIGIN--IS NOT BORNE OUT.  /6/
IT IS ALSO SIGNIFICANT TO NOTE THAT THE COMMISSION ITSELF ONCE HELD A
DIFFERENT VIEW AS TO THE MEANING OF THE PHRASE "NATIONAL ORIGIN."  WHEN
FIRST CONFRONTED WITH THE QUESTION, THE COMMISSION, THROUGH ITS GENERAL
COUNSEL, SAID:  "'NATIONAL ORIGIN' REFERS TO THE COUNTRY FROM WHICH THE
INDIVIDUAL OR HER FOREBEARS CAME . . . , NOT TO WHETHER OR NOT HE IS A
UNITED STATES CITIZEN . . . ."  EEOC GENERAL COUNSEL'S OPINION LETTER,
1 CCH EMPLOYMENT PRACTICE GUIDE PARA. 1220.20 (1967).  /7/  THE
COMMISSION'S MORE RECENT INTERPRETATION OF THE STATUTE IN THE GUIDELINE
RELIED ON BY THE DISTRICT COURT IS NO DOUBT ENTITLED TO GREAT
DEFERENCE, GRIGGS V. DUKE POWER CO., SUPRA, AT 434; PHILLIPS V. MARTIN
MARIETTA CORP., 400 U.S. 542, 545 (1971) (MARSHALL, J., CONCURRING),
BUT THAT DEFERENCE MUST HAVE LIMITS WHERE, AS HERE, APPLICATION OF THE
GUIDELINE WOULD BE INCONSISTENT WITH AN OBVIOUS CONGRESSIONAL INTENT
NOT TO REACH THE EMPLOYMENT PRACTICE IN QUESTION.  COURTS NEED NOT
DEFER TO AN ADMINISTRATIVE CONSTRUCTION OF A STATUTE WHERE THERE ARE
"COMPELLING INDICATIONS THAT IT IS WRONG."  RED LION BROADCASTING CO.
V. FCC, 395 U.S. 367, 381 (1969); SEE ALSO ZUBER V. ALLEN, 396 U.S.
168, 193 (1969); VOLKSWAGENWERK AKTIENGESELLSCHAFT V. FMC, 390 U.S.
261, 272 (1968). 

FINALLY, PETITIONERS SEEK TO DRAW SUPPORT FROM THE FACT THAT TIT.
VII PROTECTS ALL INDIVIDUALS FROM UNLAWFUL DISCRIMINATION, WHETHER OR
NOT THEY ARE CITIZENS OF THE UNITED STATES.  WE AGREE THAT ALIENS ARE
PROTECTED FROM DISCRIMINATION UNDER THE ACT.  THAT RESULT MAY BE
DERIVED NOT ONLY FROM THE USE OF THE TERM "ANY INDIVIDUAL" IN 703, BUT
ALSO AS A NEGATIVE INFERENCE FROM THE EXEMPTION IN 702, WHICH PROVIDES
THAT TIT. VII "SHALL NOT APPLY TO AN EMPLOYER WITH RESPECT TO THE
EMPLOYMENT OF ALIENS OUTSIDE ANY STATE . . . . "  42 U.S.C. 2000E - 1. 
TITLE VII WAS CLEARLY INTENDED TO APPLY WITH RESPECT TO THE EMPLOYMENT
OF ALIENS INSIDE ANY STATE.  /8/ 

THE QUESTION POSED IN THE PRESENT CASE, HOWEVER, IS NOT WHETHER
ALIENS ARE PROTECTED FROM ILLEGAL DISCRIMINATION UNDER THE ACT, BUT
WHAT KINDS OF DISCRIMINATION THE ACT MAKES ILLEGAL.  CERTAINLY IT WOULD
BE UNLAWFUL FOR AN EMPLOYER TO DISCRIMINATE AGAINST ALIENS BECAUSE OF
RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN--FOR EXAMPLE, BY HIRING
ALIENS OF ANGLO-SAXON BACKGROUND BUT REFUSING TO HIRE THOSE OF MEXICAN
OR SPANISH ANCESTRY.  ALIENS ARE PROTECTED FROM ILLEGAL DISCRIMINATION
UNDER THE ACT, BUT NOTHING IN THE ACT MAKES IT ILLEGAL TO DISCRIMINATE
ON THE BASIS OF CITIZENSHIP OR ALIENAGE. 

WE AGREE WITH THE COURT OF APPEALS THAT NEITHER THE LANGUAGE OF THE
ACT, NOR ITS HISTORY, NOR THE SPECIFIC FACTS OF THIS CASE INDICATE THAT
RESPONDENT HAS ENGAGED IN UNLAWFUL DISCRIMINATION BECAUSE OF NATIONAL
ORIGIN.  /9/

AFFIRMED. 

/1/  SECTION 706(C), 42 U.S.C. 2000E - 5(E(. 

/2/  SEE, E.G., MINNESOTA STATE ACT AGAINST DISCRIMINATION, MINN.
STAT. 363.01, SUBD. 6 (1971).  DEFINING "NATIONAL ORIGIN"  AS "THE
PLACE OF BIRTH OF AN INDIVIDUAL OR OF ANY OF HIS LINEAL ANCESTORS." 

SEVERAL STATES HAVE STATUTES MAKING IT ILLEGAL TO DISCRIMINATE ON
THE BASIS OF NATIONAL ORIGIN, AND MANY OF THESE STATUTES HAVE
APPARENTLY BEEN INTERPRETED BY THE APPROPRIATE STATE ENFORCEMENT AGENCY
AS NOT BARRING CITIZENSHIP REQUIREMENTS.  FOR EXAMPLE, THE NEW YORK
HUMAN RIGHTS LAW PROVIDES THAT IT IS AN UNLAWFUL DISCRIMINATORY
PRACTICE TO REFUSE TO HIRE ANY INDIVIDUAL BECAUSE OF HIS OR HER ORIGIN
AND ADDITIONALLY PROVIDES THAT IT SHALL BE UNLAWFUL FOR AN EMPLOYER TO
MAKE ANY PRE-EMPLOYMENT INQUIRY "WHICH EXPRESSES DIRECTLY OR
INDIRECTLY, ANY LIMITATION, SPECIFICATION OR DISCRIMINATION AS TO . . .
NATIONAL ORIGIN . . . . "  N.Y. EXEC. LAW 296 (1972).  THE NEW YORK
STATE COMMISSION AGAINST DISCRIMINATION HAS RULED THAT AN EMPLOYER MAY
LAWFULLY ASK A JOB APPLICANT WHETHER HE OR SHE IS A CITIZEN OF THE
UNITED STATES.  SEE 3 CCH EMPLOYMENT PRAC.  GUIDE PARA. 26,051, P.
8899.     WHILE THESE INTERPRETATIONS OF STATE STATUTES DO NOT CONTROL
OUR CONSTRUCTION OF FEDERAL LAW, WE THINK THEM INDICATIVE OF A GENERAL
UNDERSTANDING THAT THE TERM "NATIONAL ORIGIN" DOES NOT EMBRACE A
REQUIREMENT OF UNITED STATES CITIZENSHIP.     /3/  PETITIONERS ARGUE
THAT IT IS UNREASONABLE TO ATTRIBUTE ANY GREAT SIGNIFICANCE TO THESE
PROVISIONS IN DETERMINING CONGRESSIONAL INTENT BECAUSE THE BARRIER TO
EMPLOYMENT OF NONCITIZENS HAS BEEN TUCKED AWAY IN APPROPRIATIONS BILLS
RATHER THAN EXPRESSED IN A MORE AFFIRMATIVE FASHION.  WE DISAGREE. 
INDEED, THE FACT THAT CONGRESS HAS OCCASIONALLY ENACTED EXCEPTIONS TO
THE GENERAL BARRIER INDICATES TO US THAT CONGRESS WAS WELL AWARE OF
WHAT IT WAS DOING.  SEE, E.G., PUB. L. 92 - 204, 703, 85 STAT. 726
(DEPT. OF DEFENSE); PUB. L. 91 - 382, 84 STAT. 823 (LIBRARY OF
CONGRESS). 

/4/  WE LEFT THIS QUESTION UNDECIDED IN SUGARMAN V. DOUGALL, 413
U.S. 634, 646 N. 12 (1973).  SEE JALIL V. HAMPTON, 148 U.S. APP. D.C.
415, 460 F.2D 923, CERT. DENIED, 409 U.S. 887 (1972); MOW SUN WONG V.
HAMPTON, 333 F. SUPP. 527 (ND CAL. 1971). 

/5/  THERE IS NO SUGGESTION, FOR EXAMPLE, THAT THE COMPANY REFUSED
TO HIRE ALIENS OF MEXICAN OR SPANISH-SPEAKING BACKGROUND WHILE HIRING
THOSE OF OTHER NATIONAL ORIGINS.  RESPONDENT'S PRESIDENT INFORMED THE
EEOC'S REGIONAL DIRECTOR INVESTIGATING THE CHARGE THAT ONCE IN ITS
HISTORY THE COMPANY HAD MADE A SINGLE EXCEPTION TO ITS POLICY AGAINST
HIRING ALIENS, BUT THE NATIONALITY OF THE INDIVIDUAL CONCERNED IS NOT
REVEALED IN THE RECORD.  WHILE THE COMPANY ASKS JOB APPLICANTS WHETHER
THEY ARE UNITED STATES CITIZENS, IT MAKES NO INQUIRY AS TO THEIR
NATIONAL ORIGIN. 

/6/  IT IS SUGGESTED THAT A REFUSAL TO HIRE AN ALIEN ALWAYS
DISADVANTAGES THAT PERSON BECAUSE OF THE COUNTRY OF HIS BIRTH.  A
PERSON BORN IN THE UNITED STATES, THE ARGUMENT GOES, AUTOMATICALLY
OBTAINS CITIZENSHIP AT BIRTH, WHILE THOSE BORN ELSEWHERE CAN ACQUIRE
CITIZENSHIP ONLY THROUGH A LONG AND SOMETIMES DIFFICULT PROCESS.  SEE 8
U.S.C. 1423(1), 1423(2), 1427(A), AND 1430.  THE ANSWER TO THIS
ARGUMENT IS THAT IT IS NOT THE EMPLOYER WHO PLACES THE BURDENS OF
NATURALIZATION ON THOSE BORN OUTSIDE THE COUNTRY, BUT CONGRESS ITSELF,
THROUGH LAWS ENACTED PURSUANT TO ITS CONSTITUTIONAL POWER "(TO
ESTABLISH AN UNIFORM RULE OF NATURALIZATION."  U.S. CONST., ART. 1, 8,
CL. 4. 

PETITIONERS' RELIANCE ON PHILLIPS V. MARTIN MARIETTA CORP., 400 U.S.
542 (1971), IS MISPLACED FOR SIMILAR REASONS.  IN PHILLIPS WE HELD IT
UNLAWFUL UNDER 703 TO HAVE "ONE HIRING POLICY FOR WOMEN AND ANOTHER FOR
MEN . . . ."  ID., AT 544.  FARAH, HOWEVER, DOES NOT HAVE A DIFFERENT
POLICY FOR THE FOREIGN BORN THAN FOR THOSE BORN IN THE UNITED STATES. 
IT REQUIRES OF ALL THAT THEY BE CITIZENS OF THE UNITED STATES. 

/7/  THE OPINION LETTER WAS ADDRESSED TO THE QUESTION WHETHER IT WAS
LAWFUL TO DISCRIMINATE AGAINST NONRESIDENT ALIENS IN FAVOR OF CITIZENS
AND RESIDENT ALIENS, AND EXPRESSLY RESERVED ANY DECISION "REGARDING
DISCRIMINATION IN FAVOR OF UNITED STATES CITIZENS AND AGAINST RESIDENT
ALIENS."  NEVERTHELESS, THE DEFINITION OF "NATIONAL ORIGIN" SET FORTH
IN THE LETTER IS INCONSISTENT WITH THAT SUGGESTED BY PETITIONERS HERE. 

/8/  "TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 PROTECTS ALL
INDIVIDUALS, BOTH CITIZENS AND NONCITIZENS, DOMICILED OR RESIDING IN
THE UNITED STATES, AGAINST DISCRIMINATION ON THE BASIS OF RACE, COLOR,
RELIGION, SEX, OR NATIONAL ORIGIN."  29 CFR 1606.1 (C) (1972). 

/9/  PETITIONERS ARGUE THAT RESPONDENT'S POLICY OF DISCRIMINATING
AGAINST ALIENS IS PROHIBITED BY 42 U.S.C. 1981, WHICH PROVIDES:  "ALL
PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES SHALL HAVE THE
SAME RIGHT IN EVERY STATE AND TERRITORY TO MAKE AND ENFORCE CONTRACTS,
TO SUE, BE PARTIES, GIVE EVIDENCE, AND TO THE FULL AND EQUAL BENEFIT OF
ALL LAWS AND PROCEEDINGS FOR THE SECURITY OF PERSONS AND PROPERTY AS IS
ENJOYED BY WHITE CITIZENS . . ."  THIS ISSUE WAS NEITHER RAISED BEFORE
THE COURTS BELOW NOR PRESENTED IN THE PETITION FOR A WRIT OF
CERTIORARI.  ACCORDINGLY, WE EXPRESS NO VIEWS THEREON. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IT IS ODD THAT THE COURT WHICH HOLDS THAT A STATE MAY NOT BAR AN
ALIEN FROM THE PRACTICE OF LAW /1/  OR DENY EMPLOYMENT TO ALIENS /2/
CAN READ A FEDERAL STATUTE THAT PROHIBITS DISCRIMINATION IN EMPLOYMENT
ON ACCOUNT OF "NATIONAL ORIGIN" SO AS TO PERMIT DISCRIMINATION AGAINST
ALIENS. 

ALIENAGE RESULTS FROM ONE CONDITION ONLY:  BEING BORN OUTSIDE THE
UNITED STATES.  THOSE BORN WITHIN THE COUNTRY ARE CITIZENS FROM BIRTH. 
IT COULD NOT BE MORE CLEAR THAT FARAH'S POLICY OF EXCLUDING ALIENS IS
DE FACTO A POLICY OF PREFERRING THOSE WHO WERE BORN IN THIS COUNTRY. 
THEREFORE THE CONSTRUCTION PLACED UPON THE "NATIONAL ORIGIN" PROVISION
IS INCONSISTENT WITH THE CONSTRUCTION THIS COURT HAS PLACED UPON THE
SAME ACT'S PROTECTIONS FOR PERSONS DENIED EMPLOYMENT ON ACCOUNT OF RACE
OR SEX. 

IN CONNECTION WITH RACIAL DISCRIMINATION WE HAVE SAID THAT THE ACT
PROHIBITS "PRACTICES, PROCEDURES, OR TESTS NEUTRAL ON THEIR FACE, AND
EVEN NEUTRAL IN TERMS OF INTENT," IF THEY CREATE "ARTIFICIAL,
ARBITRARY, AND UNNECESSARY BARRIERS TO EMPLOYMENT WHEN THE BARRIERS
OPERATE INVIDIOUSLY TO DISCRIMINATE ON THE BASIS OF RACIAL OR OTHER
IMPERMISSIBLE CLASSIFICATION."  GRIGGS V. DUKE POWER CO., 401 U.S. 424,
430 - 431 (1971) (EMPHASIS ADDED).  THERE WE FOUND THAT THE EMPLOYER
COULD NOT USE TEST OR DIPLOMA REQUIREMENTS WHICH ON THEIR FACE WERE
RACIALLY NEUTRAL, WHEN IN FACT THOSE REQUIREMENTS HAD A DE FACTO
DISCRIMINATORY RESULT AND THE EMPLOYER WAS UNABLE TO JUSTIFY THEM AS
RELATED TO JOB PERFORMANCE.  THE TESTS INVOLVED IN GRIGGS DID NOT
ELIMINATE ALL BLACKS SEEKING EMPLOYMENT, JUST AS THE CITIZENSHIP
REQUIREMENT HERE DOES NOT ELIMINATE ALL APPLICANTS OF FOREIGN ORIGIN. 
RESPONDENT HERE EXPLICITLY CONCEDED THAT THE CITIZENSHIP REQUIREMENT IS
IMPOSED WITHOUT REGARD TO THE ALIEN'S QUALIFICATIONS FOR THE JOB. 

THESE PETITIONERS AGAINST WHOM DISCRIMINATION IS CHARGED ARE
CHICANOS.  BUT WHETHER BROWN, YELLOW, BLACK, OR WHITE, THE THRUST OF
THE ACT IS CLEAR:  ALIENAGE IS NO BARRIER TO EMPLOYMENT HERE.  GRIGGS,
AS I UNDERSTOOD IT UNTIL TODAY, EXTENDS ITS PROTECTIVE PRINCIPLES TO
ALL, NOT TO BLACKS ALONE.  OUR CASES ON SEX DISCRIMINATION UNDER THE
ACT YIELD THE SAME RESULT AS GRIGGS.  SEE PHILLIPS V. MARTIN MARIETTA
CORP., 400 U.S. 542 (1971). 

THE CONSTRUCTION PLACED UPON THE STATUTE IN THE MAJORITY OPINION IS
AN EXTRAORDINARY DEPARTURE FROM PRIOR CASES, AND IT IS OPPOSED BY THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE AGENCY PROVIDED BY LAW
WITH THE RESPONSIBILITY OF ENFORCING THE ACT'S PROTECTIONS.  THE
COMMISSION TAKES THE ONLY PERMISSIBLE POSITION, THAT DISCRIMINATION ON
THE BASIS OF ALIENAGE ALWAYS HAS THE EFFECT OF DISCRIMINATION ON THE
BASIS OF NATIONAL ORIGIN.  REFUSING TO HIRE AN INDIVIDUAL BECAUSE HE IS
AN ALIEN "IS DISCRIMINATION BASED ON BIRTH OUTSIDE THE UNITED STATES
AND IS THUS DISCRIMINATION BASED ON NATIONAL ORIGIN IN VIOLATION OF
TITLE VII."  BRIEF FOR COMMISSION AS AMICUS CURIAE 5.  THE COMMISSION'S
INTERPRETATION OF THE STATUTE IS ENTITLED TO GREAT WEIGHT. 

THERE IS NO LEGISLATIVE HISTORY TO CAST DOUBT ON THIS CONSTRUCTION. 
/3/  INDEED, ANY OTHER CONSTRUCTION FLIES IN THE FACE OF THE UNDERLYING
CONGRESSIONAL POLICY OF REMOVING "ARTIFICIAL, ARBITRARY, AND
UNNECESSARY BARRIERS TO EMPLOYMENT."  MC DONNELL DOUGLAS CORP. V.
GREEN, 411 U.S. 792, 806 (1973). 

MRS. ESPINOZA IS A PERMANENT RESIDENT ALIEN, MARRIED TO AN AMERICAN
CITIZEN, AND HER CHILDREN WILL BE NATIVE-BORN AMERICAN CITIZENS.  BUT
THAT FIRST GENERATION HAS THE GREATEST ADJUSTMENTS TO MAKE TO THEIR NEW
COUNTRY.  THEIR UNFAMILIARITY WITH AMERICA MAKES THEM THE MOST
VULNERABLE TO EXPLOITATION AND DISCRIMINATORY TREATMENT.  THEY, OF
COURSE, HAVE THE SAME OBLIGATION AS AMERICAN CITIZENS TO PAY TAXES, AND
THEY ARE SUBJECT TO THE DRAFT ON THE SAME BASIS.  BUT THEY HAVE NEVER
RECEIVED EQUAL TREATMENT IN THE JOB MARKET.  WRITING OF THE IMMIGRANTS
OF THE LATE 1800'S, OSCAR HANDLIN HAS SAID: 

"FOR WANT OF ALTERNATIVE, THE IMMIGRANTS TOOK THE LOWEST PLACES IN
THE RANKS OF INDUSTRY.  THEY SUFFERED IN CONSEQUENCE FROM THE POOR PAY
AND MISERABLE WORKING CONDITIONS CHARACTERISTIC OF THE SWEATSHOPS AND
THE HOMEWORK IN THE GARMENT TRADES AND IN CIGAR MAKING.  BUT THEY WERE
UNDOUBTEDLY BETTER OFF THAN THE IRISH AND GERMANS OF THE 1840'S FOR
WHOM THERE HAD BEEN NO PLACE AT ALL."  THE NEWCOMERS 24 (1959). 

THE MAJORITY DECIDES TODAY THAT IN PASSING SWEEPING LEGISLATION
GUARANTEEING EQUAL JOB OPPORTUNITIES, THE CONGRESS INTENDED TO HELP
ONLY THE IMMIGRANT'S CHILDREN, EXCLUDING THOSE "FOR WHOM THERE (IS) NO
PLACE AT ALL."  I CANNOT IMPUTE THAT NIGGARDLY INTENT TO CONGRESS. 

/1/  IN RE GRIFFITHS, 413 U.S. 717 (1973). 

/2/  SUGARMAN V. DOUGALL, 413 U.S. 634 (1973). 

/3/  THE ONLY LEGISLATIVE HISTORY THE MAJORITY POINTS TO IS
CONGRESSMAN ROOSEVELT'S DEFINITION OF "NATIONAL ORIGIN."  "IT MEANS THE
COUNTRY FROM WHICH YOU OR YOUR FOREBEARS CAME.  . . . YOU MAY COME FROM
POLAND, CZECHOSLOVAKIA, ENGLAND, FRANCE, OR ANY OTHER COUNTRY."  ANTE,
AT 89.  BUT THAT ONLY MAKES CLEAR WHAT PETITIONERS HERE ARGUE--THAT
MRS. ESPINOZA CANNOT BE DISCRIMINATED AGAINST BECAUSE SHE COMES FROM A
FOREIGN COUNTRY.  THE MAJORITY'S MENTION OF THE DELETION OF THE WORD
"ANCESTRY," IBID., IS CERTAINLY IRRELEVANT.  OBVIOUSLY "NATIONAL
ORIGIN" COMPREHENDS "ANCESTRY,"  BUT AS CONGRESSMAN ROOSEVELT POINTED
OUT IT MEANS MORE--NOT ONLY WHERE ONE'S FOREBEARS WERE BORN, BUT WHERE
ONE HIMSELF WAS BORN. 

GEORGE COOPER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WAS RUBEN MONTEMAYOR. 

KENNETH R. CARR ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE JACK T. CHAPMAN AND WILLIAM DUNCAN.  BRIEFS OF AMICI CURIAE
URGING REVERSAL WERE FILED BY JOSEPH T. EDDINS, JR., AND BEATRICE
ROSENBERG FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; BY MARIO G.
OBLEDO AND SANFORD JAY ROSEN FOR THE MEXICAN AMERICAN LEGAL DEFENSE AND
EDUCATIONAL FUND; AND BY KENNETH HECHT FOR THE EMPLOYMENT LAW CENTER. 
..END :








PASCHALL ET AL. V. CHRISTIE-STEWART, INC., ET AL. 414 U.S. 100 


       APPEAL FROM THE SUPREME COURT OF OKLAHOMA 

NO. 72 - 922.  ARGUED OCTOBER 16, 1973--DECIDED NOVEMBER 19, 1973;
502 P.2D 1265, VACATED AND REMANDED. 


    WHERE IT APPEARS THAT THE RUNNING OF THE LIMITATIONS PERIOD

  MIGHT HAVE BEEN THE TRIAL COURT'S INDEPENDENT GROUND FOR DENYING

  APPELLANTS'  MINERAL RIGHTS CLAIM, SO THAT ANY DECISION OF THIS

  COURT ON WHETHER THE TAX-SALE NOTICE PROVISIONS OF STATE LAW MET

  FEDERAL DUE PROCESS REQUIREMENTS WOULD BE ADVISORY AND BEYOND THE

  COURT'S JURISDICTION, THE COURT BELOW SHOULD CONSIDER WHETHER

  APPELLANTS PRESERVED THE RIGHT TO CHALLENGE THE TRIAL COURT'S

  DETERMINATION THAT THE STATUTE OF LIMITATIONS BARS THEIR CLAIM,

  AND WHETHER UNDER STATE LAW IT DOES SO IRRESPECTIVE OF THE

  CONSTITUTIONAL ADEQUACY OF THE TAX-SALE NOTICE PROVISIONS. 

PER CURIAM. 

IN THIS CASE WE NOTED PROBABLE JURISDICTION, 411 U.S. 915 (1973), IN
ORDER TO CONSIDER WHETHER THE PUBLISHED NOTICE PROVISIONS OF THE THEN
APPLICABLE OKLAHOMA TAX-SALE STATUES, OKLA. STAT., TIT. 68, 382 AND
432B (1951), COMPORTED WITH DUE PROCESS OF LAW GUARANTEED BY THE
FOURTEENTH AMENDMENT.  /1/  SEE MULLANE V. CENTRAL HANOVER BANK & TRUST
CO., 339 U.S. 306 (1950).  THIS WAS THE ONLY ISSUE ADDRESSED BY THE
APPELLATE COURTS OF OKLAHOMA /2/  AND BY THE PARTIES IN THE
JURISDICTIONAL STATEMENT AND THE PAPERS RESPONSIVE THERETO FILED WITH
THIS COURT. 

AFTER ORAL ARGUMENT AND UPON OUR REVIEW OF THE RECORD, IT NOW
APPEARS THAT THERE MIGHT HAVE BEEN AN INDEPENDENT AND, POSSIBLY, AN
UNCHALLENGED GROUND FOR THE JUDGMENT OF THE STATE TRIAL COURT, VIZ.,
THE RUNNING OF THE OKLAHOMA PERIOD OF LIMITATION FOR ADVERSE CLAIMS. 
/3/  IF THAT SHOULD PROVE TO BE THE CASE, ANY DECISION BY THIS COURT
WOULD BE ADVISORY AND BEYOND OUR JURISDICTION.  MURDOCK V. CITY OF
MEMPHIS, 20 WALL.  590, 636 (1875). 

THE JUDGMENT OF THE SUPREME COURT OF OKLAHOMA IS THEREFORE VACATED
AND THE CASE IS REMANDED TO THAT COURT TO CONSIDER WHETHER THE
APPELLANTS PRESERVED THE RIGHT TO CHALLENGE THE TRIAL COURT'S
DETERMINATION THAT THE STATE'S STATUTE OF LIMITATIONS IS A BAR TO THEIR
MINERAL RIGHTS CLAIM, AND, IF SO, WHETHER, UNDER STATE LAW, THE STATUTE
OF LIMITATIONS INDEPENDENTLY BARS APPELLANTS'  CLAIM, IRRESPECTIVE OF
THE CONSTITUTIONAL ADEQUACY OF THE TAX-SALE NOTICE PROVISIONS OF 382
AND 432B.  /4/  CF. WALKER V. HOFFMAN, 405 P.2D 57 (OKLA. 1965). 

       IT IS SO ORDERED. 

/1/  THE AD VALOREM TAXES IN QUESTION WERE FOR THE YEAR 1952.  THE
ORIGINAL TAX SALE TOOK PLACE IN NOVEMBER 1953 AND THE RESALE IN MAY
1956.  OKLA. STAT., TIT. 68 383 AND 432 (1951).  THE STATUTES CITED (
382, 383, 432, AND 432B) WERE REPEALED BY OKLA. SESS. LAWS 1965, C.
501, 3, AND REPLACED BY CORRESPONDING PROVISIONS OF THE STATE'S PRESENT
AD VALOREM TAX CODE, NAMELY, OKLA. STAT. ANN., TIT. 68, 24312, 14313,
24329, AND 24331 (1966). 

/2/  SEE 502 P.2D 1265 (OKLA. 1972).  THE EARLIER OPINION OF THE
OKLAHOMA COURT OF APPEALS, DIVISION 2, IS NOT REPORTED; IT IS
REPRODUCED IN THE JURISDICTIONAL STATEMENT, APP. A, P. VII. 

/3/  THE TRIAL COURT'S JUDGMENT READ IN PART AS FOLLOWS: 

"(2) THE COURT FURTHER FINDS, ORDERS, ADJUDGES AND DECREES THAT FROM
THE DATE OF THE RECORDING OF SAID RESALE TAX DEED, ON JUNE 6, 1956 . .
. SAID GRANTEES THEREIN, THE CROSS-PETITIONERS, R. W. GARRETT AND R. H.
VAUGHN, HAVE BEEN IN THE OPEN, CONTINUOUS, VISIBLE, NOTORIOUS,
EXCLUSIVE AND HOSTILE POSSESSION OF SAID LANDS AND PREMISES, RECEIVING
ALL OF THE RENTS, PROFITS AND INCOME THEREFROM, AND THAT SAID
CONTESTING SUBSTITUTED PARTY DEFENDANTS, ARE FURTHER FOREVER BARRED AND
PRECLUDED BY THE STATUTE OF LIMITATIONS, FROM SEEKING TO ASSERT THE
INVALIDITY OF SAID RESALE TAX DEED, AS PROVIDED BY 12 O.S. 1961, SEC.
93(3) AND (6)."  JURISDICTIONAL STATEMENT, APP. B, P. XVII. 

OKLA. STAT. ANN., TIT. 12, 93 (SUPP. 1973 - 1974), READS: 

93.  LIMITATION OF REAL ACTIONS.--"ACTIONS FOR THE RECOVERY OF REAL
PROPERTY, OR FOR THE DETERMINATION OF ANY ADVERSE RIGHT OR INTEREST
THEREIN, CAN ONLY BE BROUGHT WITHIN THE PERIODS HEREINAFTER PRESCRIBED,
AFTER THE CAUSE OF ACTION SHALL HAVE ACCRUED, AND AT NO OTHER TIME
THEREAFTER:

        *          *          *          * 

"(3) AN ACTION FOR THE RECOVERY OF REAL PROPERTY SOLD FOR TAXES,
WITHIN FIVE (5) YEARS AFTER THE DATE OF THE RECORDING OF THE TAX DEED .
. . PROVIDED, NOTHING HEREIN SHALL BE CONSTRUED AS REVIVING ANY CAUSE
OF ACTION FOR RECOVERY OF REAL PROPERTY HERETOFORE BARRED NOR AS
DIVESTING ANY INTEREST ACQUIRED BY ADVERSE POSSESSION PRIOR TO THE
EFFECTIVE DATE HEREOF. 

        * *          *          * 

"(6) NUMBERED PARAGRAPHS 1, 2, AND 3 SHALL BE FULLY OPERATIVE
REGARDLESS OF WHETHER THE DEED OR JUDGMENT OR THE PRECEDENT ACTION OR
PROCEEDING UPON WHICH SUCH DEED OR JUDGMENT IS BASED IS VOID OR
VOIDABLE IN WHOLE OR IN PART, FOR ANY REASON, JURISDICTIONAL OR
OTHERWISE; PROVIDED THAT THIS PARAGRAPH SHALL NOT BE APPLIED SO AS TO
BAR CAUSES OF ACTION WHICH HAVE HERETOFORE ACCRUED, UNTIL THE
EXPIRATION OF ONE (1) YEAR FROM AND AFTER ITS EFFECTIVE DATE." 

/4/  WHETHER THE ALLEGED LACK OF CONSTITUTIONALLY VALID NOTICE WOULD
PRECLUDE THE RUNNING OF THE STATUTE OF LIMITATIONS FOR AN ADVERSE LAND
CLAIM IS A QUESTION THAT HAS NOT BEEN PRESENTED TO THIS COURT OR TO THE
OKLAHOMA COURTS BELOW.  CF. SHROEDER V. CITY OF NEW YORK, 371 U.S. 208,
213 - 214 (1962).  WE INTIMATE NO VIEW ON THIS ISSUE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART CONCURS,
DISSENTING. 

APPELLANTS CLAIM TITLE TO THE MINERAL INTERESTS HERE IN CONTROVERSY
THROUGH DEEDS RECORDING THE SEVERED INTERESTS ON THE BOOKS OF THE
SEMINOLE COUNTY CLERK IN 1926 AND 1930.  IN 1952 THE OWNER OF THE
SEPARATE SURFACE INTEREST FAILED TO PAY AD VALOREM TAXES AND THE COUNTY
SATISFIED ITS TAX CLAIM BY SELLING THE ENTIRE FEE TO THE APPELLEES
AFTER "NOTICE" THROUGH NEWSPAPER PUBLICATION.  THE TAX SALE STATUTES
DID NOT REQUIRE THAT NOTICE BE GIVEN TO THE MINERAL OWNERS BY WAY OF
PERSONAL SERVICE, MAILING, OR POSTING, AND NO SUCH NOTICE WAS
ATTEMPTED.  IN AN ACTION TO QUIET TITLE APPELLANTS CONTENDED THAT, AS
RECORD OWNERS OF THE MINERAL RIGHTS, THEY WERE NEVER GIVEN
CONSTITUTIONALLY SUFFICIENT NOTICE OF THE TAX DELINQUENCY PROCEEDINGS
AND AS TO THEM THE PROCEEDINGS WERE INVALID.  SEE MULLANE V. CENTRAL
HANOVER BANK & TRUST CO., 339 U.S. 306 (1950). 

THE TRIAL COURT, FINDING THE TAX SALE PROCEEDINGS VALID AND FINDING
APPELLANTS' ATTACK ON THE TAX SALE DEED BARRED BY THE STATUTE OF
LIMITATIONS, QUIETED TITLE IN APPELLEES.  THE OKLAHOMA COURT OF APPEALS
REVERSED THAT JUDGMENT BUT WAS ITSELF REVERSED BY THE OKLAHOMA SUPREME
COURT, EACH COURT ADDRESSING ITSELF EXPRESSLY ONLY TO THE
CONSTITUTIONAL CLAIM.  THE COURT TODAY REMANDS THE CASE TO DETERMINE
WHETHER APPELLANTS ADEQUATELY PRESERVED THE RIGHT TO CHALLENGE THE
ADVERSE TRIAL COURT RULING ON THE STATUTE OF LIMITATIONS ISSUE AND
WHETHER THIS MAY SERVE AS AN INDEPENDENT BAR TO THE ASSERTION OF THEIR
CLAIM. 

IT SHOULD FIRST BE NOTED THAT PROPER PRESERVATION OF THIS ISSUE IN
THE STATE COURTS IS A HURDLE FACING NOT THE APPELLANTS BUT THE
APPELLEES.  THE OKLAHOMA COURT OF APPEALS QUIETED TITLE IN APPELLANTS
AND THUS MUST NECESSARILY HAVE FOUND, NOT ONLY THAT THE TAX SALE WAS
CONSTITUTIONALLY INFIRM, BUT ALSO THAT THE APPELLANTS'  CLAIM WAS NOT
TIME BARRED.  THE OKLAHOMA SUPREME COURT REVERSED THAT JUDGMENT AND
AFFIRMED THE JUDGMENT OF THE TRIAL COURT AFTER FINDING THAT "(THE
QUESTION FOR DECISION IS WHETHER THE OKLAHOMA STATUTORY PROCEDURE . . .
COMPLIES WITH . . . DUE PROCESS OF LAW."  502 P.2D 1265, 1266 (1972)
(EMPHASIS ADDED).  WHETHER APPELLEES ADEQUATELY RAISED THE STATUTE OF
LIMITATIONS GROUND IN OBJECTING TO THE COURT OF APPEALS JUDGMENT, WE DO
NOT KNOW.  WHAT WE DO KNOW IS THAT THE OKLAHOMA SUPREME COURT QUIETED
TITLE IN APPELLEES BY REJECTING APPELLANTS' CONSTITUTIONAL CLAIM. 
EITHER BECAUSE THE ISSUE WAS NOT PROPERLY BEFORE THE COURT OR BECAUSE
DECISION ON IT WAS NOT NECESSARY, THE STATUTE OF LIMITATIONS ISSUE WAS
NOT REACHED. 

WHAT FACES THIS COURT IS THUS A DECISION QUIETING TITLE IN APPELLEES
BY REJECTING APPELLANTS' FEDERAL CONSTITUTIONAL CLAIM.  AS THE MAJORITY
NOTES, THIS WAS THE ONLY ISSUE ADDRESSED BY THE PARTIES IN THE
JURISDICTIONAL STATEMENT AND THE RESPONSIVE PAPERS FILED WITH THIS
COURT.  WHEN A CONSTITUTIONAL ADJUDICATION IS NOT THE ONLY BASIS ON
WHICH A STATE COURT JUDGMENT RESTS, A REVIEW OF THAT ADJUDICATION BY
THIS COURT WOULD BE ADVISORY SINCE THE JUDGMENT WOULD REST ON ITS
INDEPENDENT GROUNDS REGARDLESS OF THE OUTCOME OF OUR REVIEW.  BUT THE
ONLY ISSUE BEFORE US IN THIS CASE IS A CONSTITUTIONAL ONE SINCE THE
ONLY BASIS FOR THE REVERSAL BELOW IS THE REJECTION OF APPELLANTS'
CONSTITUTIONAL CLAIM.  WHEN A DECISION RESTS ONLY ON A CONSTITUTIONAL
DETERMINATION, A REVIEW OF THAT DETERMINATION IS DISPOSITIVE OF THE
CORRECTNESS OF THE DECISION AND IS THUS NOT ADVISORY.  I WOULD
THEREFORE FACE THE CONSTITUTIONAL CLAIM AT THIS POINT. 

WILLIAM J. LEGG ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANTS. 

JOE S. ROLSTON III ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLEES. 
..END :



HESS V. INDIANA 414 U.S. 105 


       APPEAL FROM THE SUPREME COURT OF INDIANA 

NO. 73 - 5290.  DECIDED NOVEMBER 19, 1973; IND.  , 297 N.E.2D 413,
REVERSED. 


    APPELLANT, WHO WAS ARRESTED DURING AN ANTIWAR DEMONSTRATION ON

  A COLLEGE CAMPUS FOR LOUDLY STATING, "WE'LL TAKE THE FUCKING

  STREET LATER (OR AGAIN)," WAS SUBSEQUENTLY CONVICTED FOR

  VIOLATING THE INDIANA DISORDERLY CONDUCT STATUTE.  THE STATE

  SUPREME COURT AFFIRMED, RELYING PRIMARILY ON THE TRIAL COURT'S

  FINDING THAT THE STATEMENT "WAS INTENDED TO INCITE FURTHER

  LAWLESS ACTION ON THE PART OF THE CROWD IN THE VICINITY OF

  APPELLANT AND WAS LIKELY TO PRODUCE SUCH ACTION."  HELD:

  APPELLANT'S LANGUAGE DID NOT FALL WITHIN ANY OF THE "NARROWLY

  LIMITED CLASSES OF SPEECH"  THAT THE STATES MAY PUNISH WITHOUT

  VIOLATING THE FIRST AND FOURTEENTH AMENDMENTS, AND SINCE THE

  EVIDENCE SHOWED THAT THE WORDS HE USED WERE NOT DIRECTED TO ANY

  PERSON OR GROUP AND THERE WAS NO EVIDENCE THAT THEY WERE INTENDED

  AND LIKELY TO PRODUCE IMMINENT DISORDER, APPLICATION OF THE

  STATUTE TO APPELLANT VIOLATED HIS RIGHTS OF FREE SPEECH. 

  BRANDENBURG V. OHIO, 395 U.S. 444.  SEE ALSO TERMINIELLO V.

  CHICAGO, 337 U.S. 1, 4. 

PER CURIAM. 

GREGORY HESS APPEALS FROM HIS CONVICTION IN THE INDIANA COURTS FOR
VIOLATING THE STATE'S DISORDERLY CONDUCT STATUTE.  /1/  APPELLANT
CONTENDS THAT HIS CONVICTION SHOULD BE REVERSED BECAUSE THE STATUTE IS
UNCONSTITUTIONALLY VAGUE, CONNALLY V. GENERAL CONSTRUCTION CO., 269
U.S. 385 (1926), BECAUSE THE STATUTE IS OVERBROAD IN THAT IT FORBIDS
ACTIVITY THAT IS PROTECTED UNDER THE FIRST AND FOURTEENTH AMENDMENTS,
GOODING V. WILSON, 405 U.S. 518 (1972), AND BECAUSE THE STATUTE, AS
APPLIED HERE, ABRIDGED HIS CONSTITUTIONALLY PROTECTED FREEDOM OF
SPEECH, TERMINIELLO V. CHICAGO, 337 U.S. 1 (1949).  THESE CONTENTIONS
WERE REJECTED IN THE CITY COURT, WHERE HESS WAS CONVICTED, AND IN THE
SUPRERIOR COURT, WHICH REVIEWED HIS CONVICTION.  /2/  THE SUPREME COURT
OF INDIANA, WITH ONE DISSENT, CONSIDERED AND REJECTED EACH OF HESS'
CONSTITUTIONAL CONTENTIONS, AND ACCORDINGLY AFFIRMED HIS CONVICTION. 

THE EVENTS LEADING TO HESS' CONVICTION BEGAN WITH AN ANTIWAR
DEMONSTRATION ON THE CAMPUS OF INDIANA UNIVERSITY.  IN THE COURSE OF
THE DEMONSTRATION, APPROXIMATELY 100 TO 150 OF THE DEMONSTRATORS MOVED
ONTO A PUBLIC STREET AND BLOCKED THE PASSAGE OF VEHICLES.  WHEN THE
DEMONSTRATORS DID NOT RESPOND TO VERBAL DIRECTIONS FROM THE SHERIFF TO
CLEAR THE STREET, THE SHERIFF AND HIS DEPUTIES BEGAN WALKING UP THE
STREET, AND THE DEMONSTRATORS IN THEIR PATH MOVED TO THE CURBS ON
EITHER SIDE, JOINING A LARGE NUMBER OF SPECTATORS WHO HAD GATHERED. 
HESS WAS STANDING OFF THE STREET AS THE SHERIFF PASSED HIM.  THE
SHERIFF HEARD HESS UTTER THE WORD "FUCK" IN WHAT HE LATER DESCRIBED AS
A LOUD VOICE AND IMMEDIATELY ARRESTED HIM ON THE DISORDERLY CONDUCT
CHARGE.  IT WAS LATER STIPULATED THAT WHAT APPELLANT HAD SAID WAS
"WE'LL TAKE THE FUCKING STREET LATER," OR "WE'LL TAKE THE FUCKING
STREET AGAIN."  TWO WITNESSES WHO WERE IN THE IMMEDIATE VICINITY
TESTIFIED, APPARENTLY WITHOUT CONTRADICTION, THAT THEY HEARD HESS'
WORDS AND WITNESSED HIS ARREST.  THEY INDICATED THAT HESS DID NOT
APPEAR TO BE EXHORTING THE CROWD TO GO BACK INTO THE STREET, THAT HE
WAS FACING THE CROWD AND NOT THE STREET WHEN HE UTTERED THE STATEMENT,
THAT HIS STATEMENT DID NOT APPEAR TO BE ADDRESSED TO ANY PARTICULAR
PERSON OR GROUP, AND THAT HIS TONE, ALTHOUGH LOUD, WAS NO LOUDER THAN
THAT OF THE OTHER PEOPLE IN THE AREA. 

INDIANA'S DISORDERLY CONDUCT STATUTE WAS APPLIED IN THIS CASE TO
PUNISH ONLY SPOKEN WORDS.  IT HARDLY NEEDS REPEATING THAT "(THE
CONSTITUTIONAL GUARANTEES OF FREEDOM OF SPEECH FORBID THE STATES TO
PUNISH THE USE OF WORDS OR LANGUAGE NOT WITHIN 'NARROWLY LIMITED
CLASSES OF SPEECH.'"  GOODING V. WILSON, SUPRA, AT 521 - 522.  THE
WORDS HERE DID NOT FALL WITHIN ANY OF THESE "LIMITED CLASSES."  IN THE
FIRST PLACE, IT IS CLEAR THAT THE INDIANA COURT SPECIFICALLY ABJURED
ANY SUGGESTION THAT HESS' WORDS COULD BE PUNISHED AS OBSCENE UNDER ROTH
V. UNITED STATES, 354 U.S. 476 (1957), AND ITS PROGENY.  INDEED, AFTER
COHEN V. CALIFORNIA, 403 U.S. 15 (1971), SUCH A CONTENTION WITH REGARD
TO THE LANGUAGE AT ISSUE WOULD NOT BE TENABLE.  BY THE SAME TOKEN, ANY
SUGGESTION THAT HESS' SPEECH AMOUNTED TO "FIGHTING WORDS," CHAPLINSKY
V. NEW HAMPSHIRE, 315 U.S. 568 (1942), COULD NOT WITHSTAND SCRUTINY. 
EVEN IF UNDER OTHER CIRCUMSTANCES THIS LANGUAGE COULD BE REGARDED AS A
PERSONAL INSULT, THE EVIDENCE IS UNDISPUTED THAT HESS' STATEMENT WAS
NOT DIRECTED TO ANY PERSON OR GROUP IN PARTICULAR.  ALTHOUGH THE
SHERIFF TESTIFIED THAT HE WAS OFFENDED BY THE LANGUAGE, HE ALSO STATED
THAT HE DID NOT INTERPRET THE EXPRESSION AS BEING DIRECTED PERSONALLY
AT HIM, AND THE EVIDENCE IS CLEAR THAT APPELLANT HAD HIS BACK TO THE
SHERIFF AT THE TIME.  THUS, UNDER OUR DECISIONS, THE STATE COULD NOT
PUNISH THIS SPEECH AS "FIGHTING WORDS."  CANTWELL V. CONNECTICUT, 310
U.S. 296, 309 (1940); COHEN V. CALIFORNIA, SUPRA, AT 20. 

IN ADDITION, THERE WAS NO EVIDENCE TO INDICATE THAT HESS' SPEECH
AMOUNTED TO A PUBLIC NUISANCE IN THAT PRIVACY INTERESTS WERE BEING
INVADED.  "THE ABILITY OF GOVERNMENT, CONSONANT WITH THE CONSTITUTION,
TO SHUT OFF DISCOURSE SOLELY TO PROTECT OTHERS FROM HEARING IT IS . . .
DEPENDENT UPON A SHOWING THAT SUBSTANTIAL PRIVACY INTERESTS ARE BEING
INVADED IN AN ESSENTIALLY INTOLERABLE MANNER."  COHEN V. CALIFORNIA,
SUPRA, AT 21.  THE PROSECUTION MADE NO SUCH SHOWING IN THIS CASE. 

THE INDIANA SUPREME COURT PLACED PRIMARY RELIANCE ON THE TRIAL
COURT'S FINDING THAT HESS' STATEMENT "WAS INTENDED TO INCITE FURTHER
LAWLESS ACTION ON THE PART OF THE CROWD IN THE VICINITY OF APPELLANT
AND WAS LIKELY TO PRODUCE SUCH ACTION."  IND.  , , 297 N.E.2D, 413, 415
(1973).  AT BEST, HOWEVER, THE STATEMENT COULD BE TAKEN AS COUNSEL FOR
PRESENT MODERATION; AT WORST, IT AMOUNTED TO NOTHING MORE THAN ADVOCACY
OF ILLEGAL ACTION AT SOME INDEFINITE FUTURE TIME.  THIS IS NOT
SUFFICIENT TO PERMIT THE STATE TO PUNISH HESS'  SPEECH.  UNDER OUR
DECISIONS, "THE CONSTITUTIONAL GUARANTEES OF FREE SPEECH AND FREE PRESS
DO NOT PERMIT A STATE TO FORBID OR PROSCRIBE ADVOCACY OF THE USE OF
FORCE OR OF LAW VIOLATION EXCEPT WHERE SUCH ADVOCACY IS DIRECTED TO
INCITING OR PRODUCING IMMINENT LAWLESS ACTION AND IS LIKELY TO INCITE
OR PRODUCE SUCH ACTION."  BRANDENBURG V. OHIO, 395 U.S. 444, 447
(1969).  (EMPHASIS ADDED.)  SEE ALSO TERMINIELLO V. CHICAGO, 337 U.S.,
AT 4.  SINCE THE UNCONTROVERTED EVIDENCE SHOWED THAT HESS' STATEMENT
WAS NOT DIRECTED TO ANY PERSON OR GROUP OF PERSONS, IT CANNOT BE SAID
THAT HE WAS ADVOCATING, IN THE NORMAL SENSE, ANY ACTION.  AND SINCE
THERE WAS NO EVIDENCE, OR RATIONAL INFERENCE FROM THE IMPORT OF THE
LANGUAGE, THAT HIS WORDS WERE INTENDED TO PRODUCE, AND LIKELY TO
PRODUCE, IMMINENT DISORDER, THOSE WORDS COULD NOT BE PUNISHED BY THE
STATE ON THE GROUND THAT THEY HAD "A 'TENDENCY TO LEAD TO VIOLENCE.'" 
AT , 297 N.E.2D, AT 415. 

ACCORDINGLY, THE MOTION TO PROCEED IN FORMA PAUPERIS IS GRANTED AND
THE JUDGMENT OF THE SUPREME COURT OF INDIANA IS REVERSED. 

/1/  "WHOEVER SHALL ACT IN A LOUD, BOISTEROUS OR DISORDERLY MANNER
SO AS TO DISTURB THE PEACE AND QUIET OF ANY NEIGHBORHOOD OR FAMILY, BY
LOUD OR UNUSUAL NOISE, OR BY TUMULTUOUS OR OFFENSIVE BEHAVIOR,
THREATENING, TRADUCING, QUARRELING, CHALLENGING TO FIGHT OR FIGHTING,
SHALL BE DEEMED GUILTY OF DISORDERLY CONDUCT, AND UPON CONVICTION,
SHALL BE FINED IN ANY SUM NOT EXCEEDING FIVE HUNDRED DOLLARS ($500) TO
WHICH MAY BE ADDED IMPRISONMENT FOR NOT TO EXCEED ONE HUNDRED EIGHTY
(180) DAYS."  IND. CODE 35 - 27 - 2 - 1 (1971), IND. ANN. STAT. 10 -
1510 (SUPP. 1972). 

/2/  THE STATE CONTENDS THAT HESS FAILED TO PRESERVE HIS
CONSTITUTIONAL CONTENTIONS IN THE STATE COURTS.  BUT THE RECORD
DEMONSTRATES THAT HESS MOVED TO QUASH THE AFFIDAVIT FOR DISORDERLY
CONDUCT IN THE CITY COURT ON THE CONSTITUTIONAL GROUNDS THAT HE IS
ASSERTING IN THIS COURT.  THE STATE POINTS OUT THAT, ON APPEAL TO THE
SUPERIOR COURT, APPELLANT RECEIVED A TRIAL DE NOVO AND DID NOT AGAIN
MOVE TO QUASH THE AFFIDAVIT IN THAT COURT.  BUT THE REFUSAL OF THE CITY
COURT TO QUASH THE AFFIDAVIT WAS ASSERTED AS ERROR BY HESS ON HIS
APPEAL TO THE SUPERIOR COURT, AND HIS MEMORANDUM IN SUPPORT OF HIS
APPEAL PRESSED THE CONSTITUTIONAL CONTENTIONS.  SINCE THE SUPREME COURT
OF INDIANA CONSIDERED AND RESOLVED EACH OF HESS'  CONSTITUTIONAL
CONTENTIONS, IT IS APPARENT THAT IT REGARDED HESS'  ACTIONS IN THE
STATE COURTS AS SUFFICIENT UNDER STATE LAW TO PRESERVE HIS
CONSTITUTIONAL ARGUMENTS ON APPEAL. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

THE COURT'S PER CURIAM OPINION RENDERED TODAY APTLY DEMONSTRATES THE
DIFFICULTIES INHERENT IN SUBSTITUTING A DIFFERENT COMPLEX OF FACTUAL
INFERENCES FOR THE INFERENCES REACHED BY THE COURTS BELOW.  SINCE IT IS
NOT CLEAR TO ME THAT THE COURT HAS A SUFFICIENT BASIS FOR ITS ACTION, I
DISSENT. 

IT SHOULD BE NOTED AT THE OUTSET THAT THE CASE WAS TRIED DE NOVO IN
THE SUPERIOR COURT OF INDIANA UPON A STIPULATED SET OF FACTS, AND,
THEREFORE, THE RECORD IS PERHAPS UNUSUALLY COLORLESS AND DEVOID OF
LIFE.  NEVERTHELESS, CERTAIN FACTS ARE CLEARLY ESTABLISHED.  APPELLANT
WAS ARRESTED DURING THE COURSE OF AN ANTIWAR DEMONSTRATION CONDUCTED AT
INDIANA UNIVERSITY IN MAY 1970.  THE DEMONSTRATION WAS OF SUFFICIENT
SIZE AND VIGOR TO REQUIRE THE SUMMONING OF POLICE, AND BOTH THE
SHERIFF'S DEPARTMENT AND THE BLOOMINGTON POLICE DEPARTMENT WERE ASKED
TO HELP UNIVERSITY OFFICIALS AND POLICE REMOVE DEMONSTRATORS BLOCKING
DOORWAYS TO A CAMPUS BUILDING.  AT THE TIME THE SHERIFF ARRIVED,
"APPROXIMATELY 200 - 300 PERSONS"  WERE ASSEMBLED AT THAT PARTICULAR
BUILDING. 

THE DOORWAYS EVENTUALLY WERE CLEARED OF DEMONSTRATORS, BUT, IN THE
PROCESS, TWO STUDENTS WERE PLACED UNDER ARREST.  THIS ACTION DID NOT GO
UNNOTICED BY THE DEMONSTRATORS.  AS THE STIPULATION NOTES, "(IN
APPARENT RESPONSE TO THESE ARRESTS, ABOUT 100 - 150 OF THE PERSONS WHO
HAD GATHERED AS SPECTATORS WENT INTO INDIANA AVENUE IN FRONT OF BRYAN
HALL AND IN FRONT OF THE PATROL CAR IN WHICH THE TWO ARRESTEES HAD BEEN
PLACED."  THUS, BY CONTRAST TO THE MAJORITY'S SOMEWHAT ANTISEPTIC
DESCRIPTION OF THIS MASSING AS BEING "(IN THE COURSE OF THE
DEMONSTRATION," THE DEMONSTRATORS' PRESENCE IN THE STREET WAS NOT PART
OF THE NORMAL "COURSE OF THE DEMONSTRATION" BUT COULD REASONABLY BE
CONSTRUED AS AN ATTEMPT TO INTIMIDATE AND IMPEDE THE ARRESTING
OFFICERS.  FURTHERMORE, AS THE STIPULATION ALSO NOTES, THE
DEMONSTRATORS "DID NOT RESPOND TO VERBAL DIRECTIONS" FROM THE SHERIFF
TO CLEAR THE STREET.  THUS, THE SHERIFF AND HIS DEPUTIES FOUND IT
NECESSARY TO DISPERSE DEMONSTRATORS BY WALKING UP THE STREET DIRECTLY
INTO THEIR PATH.  ONLY AT THAT POINT DID THE DEMONSTRATORS MOVE TO THE
CURBS. 

THE STIPULATION CONTAINS ONLY ONE OTHER DECLARATION OF FACT: THAT
SHERIFF THRASHER ARRESTED THE APPELLANT, GREGORY HESS, FOR DISORDERLY
CONDUCT.  THE REMAINDER OT THE STIPULATION MERELY SUMMARIZES TESTIMONY,
PARTICULARLY THE TESTIMONY OF SHERIFF THRASHER, TWO FEMALE WITNESSES
(BOTH STUDENTS AT INDIANA UNIVERSITY) WHO WERE APPARENTLY PART OF THE
CROWD, AND DR. OWEN THOMAS, A PROFESSOR OF ENGLISH AT THE UNIVERSITY. 
THE ONLY "ESTABLISHED" FACTS WHICH EMERGE FROM THESE SUMMARIES ARE THAT
"HESS WAS STANDING OFF THE STREET ON THE EASTERN CURB OF INDIANA
AVENUE" AND THAT HE SAID, IN THE WORDS OF THE TRIAL COURT, "WE'LL TAKE
THE FUCKING STREET LATER (OR AGAIN)."  THE TWO FEMALE WITNESSES
TESTIFIED, AS THE MAJORITY CORRECTLY OBSERVES, THAT THEY WERE NOT
OFFENDED BY HESS' STATEMENT, THAT IT WAS SAID NO LOUDER THAN STATEMENTS
BY OTHER DEMONSTRATORS, "THAT HESS DID NOT APPEAR TO BE EXHORTING THE
CROWD TO GO BACK INTO THE STREET," THAT HE WAS FACING THE CROWD, AND
"THAT HIS STATEMENT DID NOT APPEAR TO BE ADDRESSED TO ANY PARTICULAR
PERSON OR GROUP."  (EMPHASIS ADDED.) 

THE MAJORITY MAKES MUCH OF THIS "UNCONTROVERTED EVIDENCE,"  BUT I AM
UNABLE TO FIND ANYWHERE IN THE OPINION AN EXPLANATION OF WHY IT MUST BE
BELIEVED.  SURELY THE SENTENCE "WE'LL TAKE THE FUCKING STREET LATER (OR
AGAIN)" IS SUSCEPTIBLE OF CHARACTERIZATION AS AN EXHORTATION,
PARTICULARLY WHEN UTTERED IN A LOUD VOICE WHILE FACING A CROWD.  THE
OPINIONS OF TWO DEFENSE WITNESSES CANNOT BE CONSIDERED PROOF TO THE
CONTRARY, SINCE THE TRIAL COURT WAS PERFECTLY FREE TO REJECT THIS
TESTIMONY IF IT SO DESIRED.  PERHAPS, AS THESE WITNESSES AND THE
MAJORITY OPINION SEEM TO SUGGEST, APPELLANT WAS SIMPLY EXPRESSING HIS
VIEWS TO THE WORLD AT LARGE, BUT THAT IS SURELY NOT THE ONLY RATIONAL
EXPLANATION. 

THE MAJORITY ALSO PLACES GREAT EMPHASIS ON APPELLANT'S USE OF THE
WORD "LATER," EVEN SUGGESTING AT ONE POINT THAT THE STATEMENT "COULD BE
TAKEN AS COUNSEL FOR PRESENT MODERATION."  THE OPINION CONTINUES:  "(AT
WORST, IT AMOUNTED TO NOTHING MORE THAN ADVOCACY OF ILLEGAL ACTION AT
SOME INDEFINITE FUTURE TIME."  FROM THAT OBSERVATION, THE MAJORITY
SOMEHOW CONCLUDES THAT THE ADVOCACY WAS NOT DIRECTED TOWARDS INCITING
IMMINENT ACTION.  BUT WHATEVER OTHER THEORETICAL INTERPRETATIONS MAY BE
PLACED UPON THE REMARK, THERE ARE SURELY POSSIBLE CONSTRUCTIONS OF THE
STATEMENT WHICH WOULD ENCOMPASS MORE OR LESS IMMEDIATE AND CONTINUING
ACTION AGAINST THE HARASSED POLICE.  THEY SHOULD NOT BE REJECTED OUT OF
HAND BECAUSE OF AN UNEXPLAINED PREFERENCE FOR OTHER ACCEPTABLE
ALTERNATIVES. 

THE SIMPLE EXPLANATION FOR THE RESULT IN THIS CASE IS THAT THE
MAJORITY HAS INTERPRETED THE EVIDENCE DIFFERENTLY FROM THE COURTS
BELOW.  IN DOING SO, HOWEVER, I BELIEVE THE COURT HAS EXCEEDED THE
PROPER SCOPE OF OUR REVIEW.  RATHER THAN CONSIDERING THE "EVIDENCE"  IN
THE LIGHT MOST FAVORABLE TO THE APPELLEE AND RESOLVING CREDIBILITY
QUESTIONS AGAINST THE APPELLANT, AS MANY OF OUR CASES HAVE REQUIRED,
/1/  THE COURT HAS INSTEAD FASHIONED ITS OWN VERSION OF EVENTS FROM A
PAPER RECORD, SOME "UNCONTROVERTED EVIDENCE,"  AND A LARGE MEASURE OF
CONJECTURE.  SINCE THIS IS NOT THE TRADITIONAL FUNCTION OF ANY
APPELLATE COURT, AND IS SURELY NOT A WISE OR PROPER USE OF THE
AUTHORITY OF THIS COURT, I DISSENT. 

/1/  SEE, E.G., GLASSER V. UNITED STATES, 315 U.S. 60, 80 (1942). 
..END :















MUSSER V. UNITED STATES 414 U.S. 31 


       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT 

NO. 72 - 1733.  DECIDED NOVEMBER 12, 1973.  TOGETHER WITH NO. 72 -
6748, WALDRON V. UNITED STATES, ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT--CERTIORARI
GRANTED; NO. 72 - 1733, 478 F.2D 1068; AND NO. 72 - 6748, 474 F.2D 90,
AFFIRMED. 


PER CURIAM. 

THE PETITIONERS IN THESE CASES WERE EACH CONVICTED FOR REFUSING TO
SUBMIT TO INDUCTION INTO THE ARMED FORCES, 50 U.S.C. APP. 462(A), , AND
EACH SEEKS REVIEW OF THE JUDGMENT AFFIRMING HIS CONVICTION UPON THE
SOLE GROUND THAT THE ORDER TO REPORT FOR INDUCTION WAS INVALID FOR
FAILURE OF THE LOCAL BOARD TO REOPEN HIS CLASSIFICATION PURSUANT TO A
REQUEST FOR A CONSCIENTIOUS OBJECTOR CLASSIFICATION, SEE MULLOY V.
UNITED STATES, 398 U.S. 410, 418 (1970). 

IN NO. 72 - 1733, THE PETITIONER MUSSER RECEIVED AN ORDER TO REPORT
FOR INDUCTION ISSUED BY HIS LOCAL BOARD ON SEPTEMBER 15, 1970.  ON
SEPTEMBER 21, 1970, HE REQUESTED AND RECEIVED SELECTIVE SERVICE SYSTEM
FORM 150, A SPECIAL FORM FOR THOSE SEEKING CONSCIENTIOUS OBJECTOR
CLASSIFICATION.  MUSSER FILLED OUT THE FORM, INDICATING IN RESPONSE TO
THE QUESTIONS POSED THAT HE WAS CONSCIENTIOUSLY OPPOSED TO
PARTICIPATION IN WAR IN ANY FORM BY REASON OF HIS RELIGIOUS TRAINING
AND BELIEF, AND CLAIMING EXEMPTION FROM COMBATANT AND NONCOMBATANT
TRAINING AND SERVICE PURSUANT TO 50 U.S.C. APP. 456(J).  .  ON ON
SEPTEMBER 29, 1970, THE LOCAL BOARD REVIEWED MUSSER'S APPLICATION.  THE
MINUTES OF THAT MEETING INDICATE THAT IN THE OPINION OF THE MEMBERS OF
THE BOARD, HIS CLAIM "LACKED) SINCERITY" AND THAT HE "MUST REPORT FOR
INDUCTION."  ON THE SAME DAY HE WAS SENT A FORM LETTER STATING THAT HIS
APPLICATION HAD BEEN RECEIVED AND REVIEWED, THAT HE WAS "HEREBY ADVISED
(THAT THE BOARD) DID NOT SPECIFICALLY FIND THERE HAS BEEN A CHANGE IN
STATUS RESULTING FROM CIRCUMSTANCES OVER WHICH YOU HAD NO CONTROL," AND
THAT PURSUANT TO SELECTIVE SERVICE REGULATION 1625.2, 32 CFR 1625.2,
/1/  HIS CLASSIFICATION WOULD THEREFORE NOT BE REOPENED.  /2/  MUSSER
WAS SUBSEQUENTLY ADVISED BY THE BOARD OF HIS CONTINUING DUTY TO REPORT
AND WAS IN FACT ORDERED TO REPORT FOR INDUCTION ON JANUARY 19, 1971. 
ON THAT DATE HE APPEARED AT THE INDUCTION CENTER BUT REFUSED TO SUBMIT
TO INDUCTION.  FOR THIS REFUSAL HE WAS CONVICTED IN A JURY-WAIVED TRIAL
AND SENTENCED TO TWO YEARS' IMPRISONMENT.  THE COURT OF APPEALS
AFFIRMED, 478 F.2D 1068 (CA9 1973.) 

IN NO. 72 - 6748, THE PETITIONER WALDRON WAS, ON DECEMBER 30, 1968,
MAILED AN ORDER TO REPORT FOR INDUCTION ON FEBRUARY 5, 1969.  SHORTLY
THEREAFTER, HE REQUESTED, RECEIVED, AND COMPLETED AN SSS FORM 150,
INDICATING HIS OPPOSITION TO WAR IN ANY FORM AND REQUESTING A
CONSCIENTIOUS OBJECTOR CLASSIFICATION.  ON JANUARY 24, 1969, THE BOARD
NOTIFIED HIM THAT IT HAD REVIEWED HIS APPLICATION BUT "FOUND NO GROUNDS
FOR REOPENING YOUR CLASSIFICATION."  SUBSEQUENTLY, ON JANUARY 28, 1969,
THE STATE DIRECTOR OF SELECTIVE SERVICE REVIEWED WALDRON'S FILE AND
RECOMMENDED TO THE LOCAL BOARD THAT HIS INDUCTION BE POSTPONED PURSUANT
TO REGULATION 1632.2, 32 CFR 1632.2, AND THAT HE BE GIVEN A "COURTESY
INTERVIEW" PURSUANT TO THEN-CURRENT LOCAL BOARD MEMORANDUM 41.  WALDRON
WAS THEREUPON SENT A LETTER INDICATING THAT HIS INDUCTION WAS BEING
POSTPONED UNTIL FEBRUARY 19, 1969, AND THAT HE WOULD BE GRANTED AN
INTERVIEW ON FEBRUARY 5, 1969.  ON FEBRUARY 6, FOLLOWING THE INTERVIEW,
HE WAS NOTIFIED THAT THE BOARD FOUND "NO GROUNDS FOR REOPENING YOUR
CLASSIFICATION AFTER YOUR) BEING INTERVIEWED" AND THAT HE HAD TO REPORT
FOR INDUCTION ON FEBRUARY 19.  HE ARRANGED FURTHER TO POSTPONE THE DATE
OF HIS INDUCTION UNTIL MARCH 27, 1969, IN ORDER TO BE ABLE TO REPORT
FOR INDUCTION IN ANOTHER CITY WHERE HE WAS THEN LIVING, AND ON THAT
DATE HE REFUSED TO SUBMIT TO INDUCTION.  HE WAS THEREAFTER TRIED AND
CONVICTED OF REFUSING TO SUBMIT TO A VALID ORDER TO REPORT FOR
INDUCTION, AND THE COURT OF APPEALS AFFIRMED, 474 F.2D 90 (CA7 1973). 

IN EHLERT V. UNITED STATES, 402 U.S. 99 (1971), THIS COURT REVIEWED
A CLAIM THAT A LOCAL SELECTIVE SERVICE BOARD, OPERATING UNDER LAWS AND
REGULATIONS SUBSTANTIALLY THE SAME AS THOSE INVOLVED HERE, MUST REOPEN
A REGISTRANT'S CLASSIFICATION FOLLOWING A CLAIM FOR CONSCIENTIOUS
OBJECTOR STATUS MADE AFTER ISSUANCE OF AN ORDER TO REPORT FOR INDUCTION
ANDBASED ON AN ASSERTION THAT THE REGISTRANT'S CONSCIENTIOUS OBJECTION
TO WAR IN ANY FORM HAD "CRYSTALLIZED" AFTER THE ISSUANCE OF THE ORDER
TO REPORT.  THE COURT REASONED THAT" (A) REGULATION EXPLICITLY
PROVIDING THAT NO CONSCIENTIOUS OBJECTOR CLAIM COULD BE CONSIDERED BY A
LOCAL BOARD UNLESS FILED BEFORE THE MAILING OF AN INDUCTION NOTICE
WOULD...BE PERFECTLY VALID" AS A REASONABLE TIMELINESS RULE TO INSURE
THAT ALL POSSIBLE CLAIMS BE PRESENTED TO AND REVIEWED BY THE LOCAL
BOARD PRIOR TO ITS DETERMINATION THAT A GIVEN REGISTRANT IS SUBJECT TO
INDUCTION.  ID., AT 101-102.  THE COURT ALSO CONCLUDED, HOWEVER, THAT
"THOSE WHOSE VIEWS ARE LATE IN CRYSTALLIZING" CANNOT "BE DEPRIVED OF A
FULL AND FAIR OPPORTUNITY TO PRESENT THE MERITS OF THEIR CONSCIENTIOUS
OBJECTOR CLAIMS FOR CONSIDERATION UNDER THE SAME SUBSTANTIVE CRITERIA"
THAT GOVERN CLAIMS BASED ON VIEWS CRYSTALLIZING PRIOR TO ISSUANCE OF
INDUCTION NOTICES.  ID., AT 103.  SUCH A FULL AND FAIR OPPORTUNITY, THE
COURT FOUND, EXISTED IN IN- SERVICE ARMED SERVICES PROCEDURES FOR
HEARING AND EVALUATING CONSCIENTIOUS OBJECTOR CLAIMS.  UNDER SUCH A
SYSTEM, THE "INTOLERABLE" SITUATION OF A "NO MAN'S LAND" IN WHICH POST
NOTICE CLAIMS FOR CO CLASSIFICATION WERE NOT HEARD BY THE LOCAL BOARDS
BECAUSE OF THEIR TIMELINESS RULES, AND WERE NOT HEARD BY THE ARMY AFTER
INDUCTION BECAUSE OF A FINDING THAT AN INDUCTEE HAD WAIVED HIS RIGHT TO
CLAIM SUCH CLASSIFICATION, WAS AVOIDED:  CLAIMS CRYSTALLIZING PRIOR TO
ISSUANCE OF AN ORDER TO REPORT MUST BE DIRECTED TO AND ARE TO BE
REVIEWED BY LOCAL BOARDS, WHILE CLAIMS CRYSTALLIZING THEREAFTER ARE TO
BE REVIEWED ONLY BY THE ARMED FORCES AFTER INDUCTION.  ID., AT 104 N.
7. 

SELECTIVE SERVICE REGULATIONS, HOWEVER, DID NOT UNAMBIGUOUSLY CREATE
SUCH A SYSTEM, BUT LEFT OPEN THE POSSIBILITY THAT A CLASSIFICATION BE
REOPENED AFTER ISSUANCE OF A NOTICE TO REPORT IF THE LOCAL BOARD
"SPECIFICALLY FINDS THERE HAS BEEN A CHANGE IN THE REGISTRANT'S STATUS
RESULTING FROM CIRCUMSTANCES OVER WHICH THE REGISTRANT HAD NO
CONTROL."  32 CFR 1625.2.  PRIOR TO EHLERT, THE COURTS OF APPEALS HAD
DIVIDED ON THE QUESTION OF WHETHER LATE CRYSTALLIZATION OF
CONSCIENTIOUS OBJECTOR VIEWS QUALIFIED AS SUCH A CHANGE.  402 U.S., AT
101 N.3.  IN EHLERT, WE AVOIDED THE "THEOLOGICAL" ARGUMENT OF WHETHER,
AS A MATTER OF LAW, A CLAIM OF LATE-CRYSTALLIZING CONSCIENTIOUS
OBJECTION WAS A CHANGE OVER WHICH "THE REGISTRANT HAS NO CONTROL." 
RATHER, WE HELD THAT IN VIEW OF CONSISTENT ADMINISTRATIVE
INTERPRETATION BY THE GOVERNMENT THAT CHANGES ENVISAGED BY REGULATION
1625.2 WERE LIMITED TO "OBJECTIVELY IDENTIFIABLE" AND "EXTRANEOUS"
CIRCUMSTANCES, /3/  SUCH AN INTERPRETATION OF THE REGULATION WOULD BE
ADOPTED.  ID., AT 105. 

FINALLY, WE CONSIDERED IN EHLERT WHETHER "THE CONDITIONS FOR THE
VALIDITY OF SUCH A RULE . . . ARE MET IN PRACTICE."  AFTER REVIEWING
ARMY REGULATIONS, DEPARTMENT OF DEFENSE DIRECTIVES, AND A LETTER FROM
THE GENERAL COUNSEL OF THE DEPARTMENT OF THE ARMY, WE DETERMINED THAT
AN INDUCTEE CLAIMING LATE-CRYSTALLIZING CONSCIENTIOUS OBJECTOR STATUS
WOULD RECEIVE A FULL AND FAIR OPPORTUNITY TO HAVE HIS CLAIM HEARD BY
ARMED FORCES PERSONNEL.  ID., AT 106 - 107. 

THE PETITIONERS IN THESE CASES MAKE OVERLAPPING ARGUMENTS IN
ATTEMPTING TO AVOID THE EHLERT PRECEDENT.  FIRST, RELYING ON DECISIONS
AND OPINIONS OF THE FIRST AND THIRD CIRCUITS, /4/ THEY CONTEND THAT THE
REFUSALS OF THE LOCAL BOARDS TO REOPEN THEIR CLASSIFICATIONS COULD BE
READ AS A "DENIAL" OF THOSE CLAIMS AND THUS A BAR TO IN-SERVICE
REVIEW.  IN PARTICULAR, THEY POINT TO PARA. 3.B(2) OF ARM REGULATION
635 - 20, NOT CITED OR DISCUSSED IN THE EHLERT OPINION, WHICH STATES
THAT IN-SERVICE CLAIMS FOR CONSCIENTIOUS OBJECTOR TREATMENT WILL NOT BE
FAVORABLY CONSIDERED WHEN "(BASED SOLELY ON CONSCIENTIOUS OBJECTION
CLAIMED AND DENIED BY THE SELECTIVE SERVICE SYSTEM PRIOR TO
INDUCTION."  (EMPHASIS ADDED.)  IN THE LANGUAGE OF THE FIRST CIRCUIT,
"IF THE ARMY COULD HAVE READ THE DRAFT BOARD'S REASONLESS REFUSAL TO
REOPEN AS A 'DENIAL' THEN (A REGISTRANT) MIGHT WELL HAVE BEEN PLACED IN
A MUTUAL BUCKPASSING SITUATION WHERE NEITHER THE DRAFT BOARD NOR THE
ARMY WOULD CONSIDER HIS CLAIM ON THE MERITS."  UNITED STATES V. ALIOTO,
469 F.2D 722, 727 (1972).  EHLERT, THE PETITIONERS CLAIM, DID NOT DEAL
WITH THIS PROBLEM BECAUSE THE BOARD IN THAT CASE HAD EXPLICITLY STATED
THAT IT WAS NOT DENYING EHLERT'S CLAIM ON THE MERITS, BUT WAS REFUSING
TO REACH THOSE MERITS SINCE NO SHOWING HAD BEEN MADE OF A "'CHANGE IN
THE REGISTRANT'S STATUS RESULTING FROM CIRCUMSTANCES OVER WHICH THE
REGISTRANT HAD NO CONTROL.'"  402 U.S., AT 100.  THUS, THEY ARGUE, THE
AMBIGUITY OF THE BOARD'S REFUSAL TO REOPEN, TAKEN TOGETHER WITH CURRENT
ARMY REGULATIONS, RAISES THE SPECTER OF THE KIND OF NO MAN'S LAND
SPECIFICALLY FOUND INTOLERABLE IN EHLERT. 

THE PETITIONERS MISCONSTRUE THE REASONING AND EFFECT OF OUR HOLDING
IN EHLERT.  IN ADOPTING THE GOVERNMENT'S INTERPRETATION OF REGULATION
1625.2 THAT A LATE CRYSTALLIZATION WAS NOT A CIRCUMSTANCE OVER WHICH A
REGISTRANT "HAD NO CONTROL," THE COURT DID NOT HOLD MERELY THAT A LOCAL
BOARD WOULD BE PERMITTED TO REFUSE REOPENING OF A CLASSIFICATION IN
SUCH A SITUATION, /5/  BUT THAT IT WAS WITHOUT POWER TO REOPEN UNDER
SUCH CIRCUMSTANCES.  THE MANDATORY LANGUAGE OF REGULATION 1625.2, THAT
CLASSIFICATION "SHALL NOT BE REOPENED" UNLESS THE PROVISO IS MET,
REQUIRES NO LESS.  IF A LOCAL BOARD IS NOT EMPOWERED TO REOPEN THE
CLASSIFICATION, IT FOLLOWS THAT IT IS SIMILARLY WITHOUT POWER TO MAKE
ANY RULING ON THE MERITS OF A CLAIM CAN BE MADE ONLY BY A REOPENING,
WITH CONCOMITANT RIGHTS IN THE REGISTRANT TO A PERSONAL APPEARANCE AND
AN ADMINISTRATIVE APPEAL OF AN ADVERSE DECISION, SEE N. 2, SUPRA.  FROM
THIS IT FOLLOWS THAT IN NO EVENT CAN A MERE REFUSAL TO REOPEN SIGNIFY
MORE THAN A RECOGNITION OF LACK OF POWER TO DO SO; IT CANNOT AND DOES
NOT BEAR ANY SIGNIFICANCE AS TO THE MERITS OF A REGISTRANT'S CLAIM. 

THE PETITIONERS FURTHER ARGUE THAT WHILE EACH BOARD'S ACTION IN
THESE CASES TOOK THE FORM OF A REFUSAL TO REOPEN, THE DECISION NOT TO
DO SO WAS IN FACT BASED ON THE BOARD'S CONSIDERATION OF THE MERITS, AND
COULD BE VIEWED AS SUCH BY THE ARMED FORCES.  /6/  THE SIMPLE ANSWER TO
THIS CONTENTION IS THAT NO MATTER WHAT THE BOARDS'  APPARENT
MOTIVATIONS IN REFUSING TO REOPEN THE PETITIONERS'  CLASSIFICATIONS MAY
HAVE BEEN, THE BOARDS WERE SIMPLY WITHOUT POWER TO REOPEN, AND AN
EXPRESSED OR UNEXPRESSED INDICATION OF THE BOARDS' VIEWS OF THE CLAIMS
CANNOT BE DEEMED A DENIAL OF THOSE CLAIMS ON THE MERITS. 

AS IN EHLERT, WE TURN FINALLY TO A CONSIDERATION OF WHETHER "THE
CONDITIONS FOR THE VALIDITY OF SUCH A RULE . . . ARE MET IN PRACTICE." 
ARMY REGULATION 635 - 20, PARA. 3.B(2), SUPRA, BARS IN-SERVICE REVIEW
OF A REQUEST FOR CONSCIENTIOUS OBJECTOR STATUS IF SUCH A REQUEST HAS
BEEN "CLAIMED AND DENIED BY THE SELECTIVE SERVICE SYSTEM PRIOR TO
INDUCTION."  WHILE THE CRITICAL WORD "DENIED" MIGHT ARGUABLY BE APPLIED
TO A BOARD'S REFUSAL TO REOPEN A CLASSIFICATION, IT CANNOT BE SO
APPLIED TO A REFUSAL TO REOPEN A CLASSIFICATION BASED ON A CLAIM OF
CONSCIENTIOUS OBJECTION CRYSTALLIZING AFTER ISSUANCE OF A NOTICE TO
REPORT, NOW THAT EHLERT HAS MADE CLEAR THAT SUCH A REFUSAL CAN ONLY BE
BASED ON THE BOARD'S LACK OF POWER TO REOPEN IN SUCH A POSTURE.  WE
NOTE THAT IN A LETTER WRITTEN BY THE GENERAL COUNSEL FOR THE DEPARTMENT
OF THE ARMY WITH RESPECT TO THE THEN-PENDING CASE OF UNITED STATES V.
SHOMOCK AND PRINTED IN THE OPINION OF THAT CASE, 462 F.2D 338, 345 N.
17 (CA3 1972), THE GENERAL COUNSEL INDICATED THAT WHEN A REFUSAL TO
REOPEN IS NOT BASED ON A DECISION ON THE MERITS, A REGISTRANT MAY RAISE
SUCH A CLAIM IN THE ARMY AND WILL BE GIVEN A FULL AND FAIR HEARING. 
/7/  IN THE EVENT THAT A LOCAL BOARD IN ONE WAY OR ANOTHER MANIFESTS
ITS VIEWS AS TO THE SINCERITY OF A LATE-CRYSTALLIZING REGISTRANT'S
CLAIMS, AS IN THE CASE OF THE PETITIONER MUSSER, OR EXPRESSES ANY OTHER
CONCLUSION CONCERNING THE MERITS OF HIS CLAIMS, SUCH EXPRESSIONS MUST
BE GIVEN NO EFFECT BY THE ARMED FORCES IN REVIEWING AN IN-SERVICE
CONSCIENTIOUS OBJECTOR REQUEST. 

IT FOLLOWS THAT THE COURTS OF APPEALS IN THESE CASES CORRECTLY RULED
THAT THE PETITIONERS' ORDERS TO REPORT FOR INDUCTION WERE VALID.  THE
MOTION OF THE PETITIONER WALDRON FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND THE PETITIONS FOR CERTIORARI ARE GRANTED, AND THE JUDGMENTS ARE

              AFFIRMED. 

/1/  AT THE TIME THE ADMINISTRATIVE DECISIONS INVOLVED IN THESE
CASES WERE MADE, REGULATION 1625.2 READ IN PERTINENT PART AS FOLLOWS: 

"THE LOCAL BOARD MAY REOPEN AND CONSIDER ANEW THE CLASSIFICATION OF
A REGISTRANT . . . UPON THE WRITTEN REQUEST OF THE REGISTRANT . . . IF
SUCH REQUEST IS ACCOMPANIED BY WRITTEN INFORMATION PRESENTING FACTS NOT
CONSIDERED WHEN THE REGISTRANT WAS CLASSIFIED, WHICH, IF TRUE, WOULD
JUSTIFY A CHANGE IN THE REGISTRANT'S CLASSIFICATION; . . . PROVIDED . .
. THE CLASSIFICATION OF A REGISTRANT SHALL NOT BE REOPENED AFTER THE
LOCAL BOARD HAS MAILED TO SUCH REGISTRANT AN ORDER TO REPORT FOR
INDUCTION (SSS FORM NO. 252) OR AN ORDER TO REPORT FOR CIVILIAN WORK
AND STATEMENT OF EMPLOYER (SSS FORM NO. 153) UNLESS THE LOCAL BOARD
FIRST SPECIFICALLY FINDS THERE HAS BEEN A CHANGE IN THE REGISTRANT'S
STATUS RESULTING FROM CIRCUMSTANCES OVER WHICH THE REGISTRANT HAD NO
CONTROL."     /2/  AS USED IN THE SELECTIVE SERVICE REGULATIONS AND IN
THIS OPINION, THE TERM "REOPEN" SIGNIFIES A FRESH DETERMINATION BY THE
LOCAL BOARD OF THE CLASSIFICATION TO WHICH A REGISTRANT BELONGS.  SEE
REGULATION 1625.11, 32 CFR 1625.11.  WHEN A CASE IS REOPENED BY A LOCAL
BOARD, THE REGISTRANT IS AUTOMATICALLY ACCORDED THE RIGHT TO A PERSONAL
APPEARANCE BEFORE THE LOCAL BOARD AND AN ADMINISTRATIVE APPEAL OF ANY
ADVERSE DECISION BY THE BOARD, REGULATION 1625.13, 32 CFR 1625.13, EVEN
THOUGH A REGISTRANT IS "RECLASSIFIED" IN THE SAME CLASSIFICATION AS
THAT IN WHICH HE HAD FORMERLY BEEN PUT.  MULLOY V. UNITED STATES, 398
U.S. 410, 414 - 415 (1970). 

/3/  AS EXAMPLES OF THE SORT OF NONVOLITIONAL CHANGES THAT
REGULATION 1625.2 WAS INTENDED TO ALLOW, THE GOVERNMENT HAS
CONSISTENTLY CITED AND THE COURT IN EHLERT MENTIONED AN INJURY TO THE
REGISTRANT, OR DEATH IN HIS FAMILY MAKING HIM THE SOLE SURVIVING SON. 
EHLERT V. UNITED STATES, 402 U.S. 99, 104 (1971). 

/4/  UNITED STATES V. ALIOTO, 469 F.2D 722 (CA1 1972); UNITED STATES
V. ZISKOWSKI, 465 F.2D 480 (CA3 1972); UNITED STATES V. SHOMOCK, 462
F.2D 338 (CA3 1972).  SEE ALSO UNITED STATES V. COTTON, 346 F.SUPP. 
691 (SCNY 1972); UNITED STATES V. USDIN, 6 S.S.L.R. 3039 (EDNY 1972). 

/5/ ALTHOUGH THE LANGUAGE OF REGULATION 1625.2 IS PERMISSIVE IN
STATING THAT A LOCAL BOARD "MAY" REOPEN IF THE PREREQUISITES ARE MET,
IN MULLOY V. UNITED STATES, SUPRA, WE HELD THAT A BOARD MUST REOPEN A
CLASSIFICATION IF A PRIMA FACIE CASE FOR A NEW CLASSIFICATION HAS BEEN
MADE TO THE BOARD AND THE TIMELINESS REQUIREMENTS ARE MET.  398 U.S.,
AT 415 - 416. 

/6/  THE PETITIONERS IN BOTH OF THE PRESENT CASES, RELYING PRIMARILY
ON MILLER V. UNITED STATES, 388 F.2D 973 (CA9 1967), CONTEND THAT BY
CONSIDERING THE MERITS OF THE CLAIMS FOR CONSCIENTIOUS OBJECTOR STATUS
THE BOARDS EFFECTED A "DE FACTO REOPENING" WHICH WAS MERELY CLOTHED AS
A DENIAL OF REOPENING.  IN MILLER AND IN THE SUBSEQUENT CASE OF UNITED
STATES V. AUFDENSPRING, 439 F. 2D 388 (CA9 1971), THE STATE DIRECTOR,
ACTING UNDER SINCE-RESCINDED REGULATION 1625.3, INDEPENDENTLY ORDERED A
REOPENING OF THE REGISTRANTS' CASES, THUS CIRCUMVENTING THE TIMELINESS
PROVISO CONTAINED IN REGULATION 1625.2 WITH RESPECT TO REQUESTS FOR
REOPENING BY REGISTRANTS.  THE COURTS IN THOSE CASES HELD THAT THE
LOCAL BOARDS' REFUSALS TO REOPEN WERE PROCEDURALLY IMPERMISSIBLE, SINCE
IN EACH CASE THE REFUSAL WAS BASED ON A REVIEW OF THE SUBSTANCE OF THE
REGISTRANT'S CLAIM AND THUS WAS IN FACT A REFUSAL TO RECLASSIFY WITHOUT
THE PROCEDURAL ADVANTAGES TO THE REGISTRANT INHERENT IN A
RECLASSIFICATION, SEE N. 2, SUPRA. 

THOSE DECISIONS WERE CORRECTLY DISTINGUISHED BY THE COURTS OF
APPEALS IN THE PRESENT CASES.  PETITIONER MUSSER'S CLAIM FOR A
REOPENING AND RECLASSIFICATION WAS BASED SOLELY UPON HIS OWN REQUEST,
AND THUS THE TIMELINESS PROVISO OF REGULATION 1625.2 FULLY APPLIED.  IN
WALDRON'S CASE, THE STATE DIRECTOR RECOMMENDED POSTPONEMENT AND AN
INTERVIEW IN ACCORDANCE WITH LOCAL BOARD MEMORAMDUM 41.  BUT THE COURT
FOUND THAT THIS POSTPONEMENT WAS EFFECTED UNDER THE DIRECTOR'S
AUTHORITY GIVEN BY REGULATION 1632.2 TO POSTPONE ANY INDUCTION, RATHER
THAN IN THE EXERCISE OF HIS AUTHORITY UNDER REGULATION 1625.3 TO CAUSE
A REOPENING; FURTHER, THE COURT NOTED THAT THE DIRECTOR'S SUGGESTION OF
AN INTERVIEW COULD NOT IN ANY EVENT TRIGGER A REOPENING UNDER
REGULATION 1625.3 SINCE THE COMMUNICATION WAS NOT IN WRITING, AS THAT
REGULATION SPECIFICALLY REQUIRED. 

/7/  THE PERTINENT PART OF THE GENERAL COUNSEL'S LETTER IS AS
FOLLOWS: 

"IF THE APPELLANT HAD ENTERED THE ARMY IN MAY 1969 UNDER
CIRCUMSTANCES WHERE THE SELECTIVE SERVICE SYSTEM ACTUALLY CONSIDERED
AND DENIED HIS CONSCIENTIOUS OBJECTOR CLAIM ON THE MERITS, HE WOULD NOT
HAVE BEEN ENTITLED TO AN IN-SERVICE DETERMINATION ON THE MERITS OF HIS
CONSCIENTIOUS OBJECTOR CLAIM. 

"IF THE APPELLANT HAD ENTERED THE ARMY IN MAY 1969 UNDER
CIRCUMSTANCES WHERE HIS LOCAL DRAFT BOARD MERELY REFUSED TO REOPEN HIS
CLASSIFICATION BECAUSE HIS ASSERTED-VIEWS CRYSTALLIZED SUBSEQUENT TO
THE RECEIPT OF HIS INDUCTION NOTICE, IN THE VIEW OF THE DEPARTMENT OF
THE ARMY PERSONNEL RESPONSIBLE FOR ADMINISTERING THE CONSCIENTIOUS
OBJECTOR CLAIMS OF IN-SERVICE MEMBERS, HE WOULD HAVE BEEN ENTITLED
UNDER ARMY POLICY TO AN IN-SERVICE DETERMINATION ON THE MERITS OF HIS
CONSCIENTIOUS OBJECTOR CLAIM."  462 F.2D, AT 345.  (EMPHASIS ADDED.) 
ALTHOUGH THE LETTER INTERPRETED AND REPORTED POLICIES IN EFFECT AT THE
TIME OF SHOMOCK'S ORDERED INDUCTION, THERE APPEARS TO HAVE BEEN NO
SIGNIFICANT CHANGE OF POLICY AT THE TIME OF THE ORDERED INDUCTIONS IN
THESE CASES. 

MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL WOULD GRANT THESE
PETITIONS AND SET THESE CASES FOR ORAL ARGUMENT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IN EHLERT V. UNITED STATES, 402 U.S. 99 (1971), THE COURT DECIDED
THAT THE SELECTIVE SERVICE SYSTEM MAY PLACE SPECIAL HURDLES ON
CONSCIENTIOUS OBJECTOR CLAIMS FIRST RAISED AFTER A NOTICE OF INDUCTION
HAS BEEN ISSUED.  IN ALLOWING THE SELECTIVE SERVICE TO SET WHAT IT
TERMED REASONABLE "TIMELINESS" REGULATIONS, THE COURT ASSUMED THAT THE
CONSCIENTIOUS OBJECTOR CLAIMS NOT CONSIDERED BY THE LOCAL BOARD WOULD
RECEIVE FULL CONSIDERATION BY THE MILITARY AFTER INDUCTION.  ID., AT
107.  "(IF . . . A SITUATION SHOULD ARISE IN WHICH NEITHER THE LOCAL
BOARD NOR THE MILITARY HAD MADE AVAILABLE A FULL OPPORTUNITY TO PRESENT
A PRIMA FACIE CONSCIENTIOUS OBJECTION CLAIM FOR DETERMINATION UNDER
ESTABLISHED CRITERIA, . . . A WHOLLY DIFFERENT CASE WOULD BE
PRESENTED."  IBID.  I DISSENTED IN EHLERT, ARGUING THAT UNDER THE
REGULATIONS OF THE SELECTIVE SERVICE SYSTEM THE LOCAL BOARDS SHOULD
CONSIDER THE CLAIM AS ARISING FROM A CIRCUMSTANCE OVER WHICH THE
REGISTRANT HAS NO CONTROL, AND THAT CIVILIAN RATHER THAN MILITARY
ADJUDICATION OF THESE CLAIMS SHOULD BE PREFERRED.  ID., AT 108.  BUT
APART FROM MY OWN VIEWS ON THAT QUESTION, THE DECISIONS AFFIRMED IN
TODAY'S PER CURIAM ARE HIGHLY QUESTIONABLE, SINCE THEY APPEAR TO BE
THAT "WHOLLY DIFFERENT CASE." 

NEITHER PETITIONER IN THESE CASES RECEIVED A FULL ADMINISTRATIVE
REVIEW OF THE CONSCIENTIOUS OBJECTOR CLAIMS PRESENTED TO HIS LOCAL
BOARD.  BUT IN EACH CASE THE BOARD PURPORTED TO LOOK INTO THE CLAIM. 
IN MUSSER'S CASE THE BOARD MADE AN EXPLICIT FINDING THAT HIS BELIEFS
WERE NOT "SINCERE"--A FINDING WHICH ONE JUDGE BELOW FOUND TO BE WITHOUT
BASIS.  IN WALDRON'S CASE NO EXPLICIT FINDING ON THE MERITS WAS MADE,
YET THE BOARD POSTPONED HIS INDUCTION AND INTERVIEWED HIM AFTER THE
STATE DIRECTOR RECOMMENDED THIS COURSE FOLLOWING HIS REVIEW OF
WALDRON'S FILE.  WALDRON'S CLAIM WAS NOT SPECIFICALLY DENIED AS
UNTIMELY.  THUS IN EACH CASE IT WOULD APPEAR THAT EITHER EXPLICITLY OR
IMPLICITLY SOME EVALUATION OF THE MERITS OF THE CO CLAIM WAS MADE.  BUT
BECAUSE THE CLAIMS WERE CONSIDERED LATE, NEITHER PETITIONER WAS
AFFORDED THE NORMAL ADMINISTRATIVE APPEAL RIGHTS.  /1/  SUCH A RESULT
CAN BE JUSTIFIED UNDER EHLERT ONLY IF THESE CLAIMS ARE TO RECEIVE FULL
DE NOVO CONSIDERATION BY THE MILITARY.  IN CHALLENGING ASSURANCES THAT
THEIR CLAIMS WILL RECEIVE SUCH CONSIDERATION, THE PETITIONERS POINT TO
PARA. 3.B(2) OF ARMY REGULATION, 635 - 20, WHICH WAS NOT CONSIDERED IN
EHLERT.  IT PROVIDES THAT "(REQUESTS FOR DISCHARGE AFTER ENTERING
MILITARY SERVICE WILL NOT BE FAVORABLY CONSIDERED WHEN.  . . (2) (BASED
SOLELY ON CONSCIENTIOUS OBJECTION CLAIMED AND DENIED BY THE SELECTIVE
SERVICE SYSTEM PRIOR TO INDUCTION." 

THE ISSUE, THEN, IS WHETHER THE ACTIONS OF PETITIONERS' LOCAL BOARDS
MAY CONSTITUTE, IN THE ARMY'S VIEW, DENIAL OF THE CO CLAIM, THUS
BARRING ITS CONSIDERATION BY THE ARMY.  ON ITS FACE THE REGULATION
WOULD SURELY ALLOW THIS CONSTRUCTION.  SUCH A POSSIBILITY COULD PERHAPS
HAVE BEEN AVOIDED IF THE LOCAL BOARDS IN THESE CASES HAD EXPLICITLY
BASED THEIR ACTIONS ON THE CLAIMS BEING UNTIMELY, AS THE BOARD IN
EHLERT DID.  BUT THE BOARDS HERE DID NOT DO THIS, AND INDEED IN
MUSSER'S CASE PURPORTED RATHER CLEARLY TO REJECT THE CLAIM ON THE
MERITS.  THESE CASES ARE THUS DIFFERENT FROM THE PETITIONER'S IN
EHLERT.  WITH THE LOCAL BOARD'S ACTIONS HERE AT BEST AMBIGUOUS, WE
CANNOT KNOW WHAT THE ARMY WILL CONSIDER THE CLAIMS. 

THE MAJORITY EMPHASIZES THAT IN THE CIRCUMSTANCES OF THESE CASES THE
LOCAL BOARDS WERE WITHOUT AUTHORITY TO REOPEN THE CLASSIFICATIONS AND
CONSIDER THE CLAIMS ON THE MERITS.  THAT IS, OF COURSE, NOW THE LAW. 
BUT WHILE THIS RULE EFFECTIVELY FORECLOSES REGISTRANTS FROM THE
PROCEDURAL RIGHTS WITHIN THE SELECTIVE SERVICE SYSTEM THAT A REOPENING
WOULD AFFORD, IT CANNOT GUARANTEE THAT THE ARMY WILL AFFORD THE
REGISTRANT A FULL HEARING ON HIS CLAIMS.  THAT WILL DEPEND UPON THE
ARMY'S APPLICATION OF ITS OWN REGULATIONS TO THESE FACTS.  /2/ 

INDEED, EVEN IF WE ASSUME THAT THE ARMY WILL ON ITS FACE GRANT
PETITIONERS' CLAIMS DE NOVO CONSIDERATION, WE IN FACT HAVE NO WAY OF
DISCOVERING WHETHER SUB SILENTIO SOME WEIGHT WILL BE ACCORDED THE PRIOR
PROCEEDINGS OF THE DRAFT BOARDS.  YET THOSE PROCEEDINGS ARE DESERVING
OF NO WEIGHT WHATSOEVER SINCE PETITIONERS WERE FORECLOSED FROM THE
ADMINISTRATIVE APPEAL ORDINARILY ALLOWED. 

THE OPINIONS SUMMARILY AFFIRMED TODAY CONFLICT SQUARELY, AS THE
SOLICITOR GENERAL CONCEDES, WITH DECISIONS IN THE FIRST, SECOND, AND
THIRD CIRCUITS.  UNITED STATES V. ALIOTO, 469 F.2D 722 (CA1 1972);
UNITED STATES V. SHOMOCK, 462 F.2D 338 (CA3 1972); UNITED STATES V.
ZISKOWSKI, 465 F.2D 480 (CA3 1972); UNITED STATES V. JERROLD, 480 F.2D
1293 (CA1 1973); UNITED STATES V. FOLINO, NO. 72 - 1974, CA3 JUNE 19,
1973; UNITED STATES V. COTTON, 346 F.SUPP.  691 (SDNY 1972); UNITED
STATES V. USDIN, 6 S.S.L.R. 3039 (EDNY 1972).  AT A MINIMUM WE SHOULD
HAVE SET THESE CASES FOR ARGUMENT AND FULL BRIEFING. 

/1/  IF THE BOARD REOPENS THE FILE, THE REGISTRANT HAS THE RIGHT
AFTER AN ADVERSE DECISION TO A PERSONAL APPEARANCE BEFORE THE BOARD AND
APPEAL.  SINCE HERE THE FILES WERE NOT CONSIDERED REOPENED, THE
PETITIONERS HAD NO SUCH RIGHTS.  COMPARE 32 CFR 1625.4 WITH 32 CFR
1625.13. 

/2/  UNLIKE EHLERT, IN THESE CASES WE HAVE NO ASSURANCES FROM THE
ARMY THAT THE REGISTRANTS WILL RECEIVE A HEARING.  THE MAJORITY REFERS
TO A LETTER FROM THE ARMY'S GENERAL COUNSEL LODGED WITH THE COURT OF
APPEALS IN UNITED STATES V. SHOMOCK, 462 F.2D 338, 345 N. 17 (CA3
1972).  BUT THIS LETTER DOES NO MORE THAN DISTINGUISH BETWEEN CLAIMS
DENIED BY THE SELECTIVE SERVICE SYSTEM ON THE MERITS AND THOSE NOT
CONSIDERED BECAUSE THE BOARD DID NOT REOPEN THE CLASSIFICATION; ONLY
THE LATTER WILL RECEIVE A HEARING IN THE ARMY.  BUT THERE IS NO
ASSURANCE THAT IN THE CONFUSED CIRCUMSTANCES OF THESE CASES THE ARMY
WILL NOT CONSIDER THESE CLAIMS TO HAVE BEEN DENIED ON THE MERITS. 
..END :




















NORWELL V. CITY OF CINCINNATI 414 U.S. 14 


       ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           OHIO 

NO. 72 - 1366.  DECIDED NOVEMBER 5, 1973--CERTIORARI GRANTED;
REVERSED. 


PER CURIAM. 

PETITIONER EDWARD NORWELL, ON A PLEA OF NOT GUILTY, WAS CONVICTED OF
A VIOLATION OF CINCINNATI'S DISORDERLY CONDUCT ORDINANCE.  THE CHARGE
WAS THAT PETITIONER "DID UNLAWFULLY AND WILFULLY CONDUCT HIMSELF IN A
DISORDERLY MANNER, WITH INTENT TO ANNOY SOME PERSON."  THE JUDGMENT OF
CONVICTION WAS AFFIRMED BY THE OHIO COURT OF APPEALS.  FURTHER APPEAL
TO THE SUPREME COURT OF OHIO WAS DISMISSED BY THAT COURT SUA SPONTE
"FOR THE REASON THAT NO SUBSTANTIAL CONSTITUTIONAL QUESTION EXISTS
HEREIN." 

WE ARE PERSUADED THAT THE ORDINANCE, AS APPLIED TO THIS PETITIONER
ON THE FACTS OF HIS CASE, OPERATED TO PUNISH HIS CONSTITUINALLY
PROTECTED SPEECH.  WE THEREFORE GRANT CERTIORARI AND REVERSE. 

THE ORDINANCE, 901-D4 OF THE CITY'S MUNICIPAL CODE, READS: 

     "NO PERSON SHALL WILFULLY CONDUCT HIMSELF OR HERSELF IN A

  NOISY, BOISTEROUS, RUDE, INSULTING OR OTHER DISORDERLY MANNER,

  WITH THE INTENT TO ABUSE OR ANNOY ANY PERSON . . . " 

PETITIONER, 69 YEARS OF AGE AND AN IMMIGRANT 20 YEARS AGO, IS
EMPLOYED BY HIS SON WHO MANAGES AND IS PART OWNER OF A "PONY KEG,"  A
SMALL PACKAGE LIQUOR STORE.  THE PETITIONER WORKS AT THE PONY KEG EVERY
EVENING AND HELPS HIS SON "BECAUSE IT IS VERY DANGEROUS."  THERE HAVE
BEEN BREAK-INS AT THE STORE ON SEVERAL OCCASIONS AND A FORMER OWNER WAS
KILLED THERE. 

ON CHRISTMAS NIGHT, 1971, THE PONY KEG CLOSED ABOUT 10:30.  THE SON
DROVE HOME, BUT PETITIONER "WANTED TO TAKE A WALK AND GET HOME AT 11:00
TO HEAR THE NEWS."  DOWN THE STREET, HE WAS APPROACHED BY OFFICER
JOHNSON, WHO HAD BEEN NOTIFIED THAT A "SUSPICIOUS MAN" WAS IN THE
NEIGHBORHOOD OF THE PONY KEG.  OFFICER JOHNSON TESTIFIED THAT HE
APPROACHED PETITIONER AND ASKED HIM IF HE LIVED IN THE AREA. 
PETITIONER LOOKED AT HIM, "AND THEN HE TURNED AROUND AND WALKED AWAY." 
THE OFFICER TWICE ATTEMPTED TO STOP HIM, BUT EACH TIME PETITIONER THREW
OFF HIS ARM AND PROTESTED, "I DON'T TELL YOU PEOPLE ANYTHING."  HE DID
NOT RUN.  PETITIONER THEN WAS PLACED UNDER ARREST FOR DISORDERLY
CONDUCT.  OFFICER JOHNSON SAID HE HAD TO "PUSH THE MAN APPROXIMATELY
HALF A BLOCK TO GET HIM INTO THE POLICE CAR.  HE DIDN'T UNDERSTAND WHY
HE WAS BEING ARRESTED." 

PETITIONER TESTIFIED THAT HE "WAS FAR FROM THE PONY KEG" WHEN THE
OFFICER DROVE UP IN HIS CAR AND CALLED OUT SOMETHING WHICH PETITIONER
DID NOT UNDERSTAND. 

"HE TOLD ME SOMETHING, BUT I COULDN'T UNDERSTAND . . . . I SAID--I
ASKED HIM, 'WHAT DO YOU WANT FROM ME?'  HE SAID, 'WHY ARE YOU ON ON THE
STREET?'  I SAID, 'I AM WALKING ON THE STREET.'  AFTER THEN, HE SAID,
'WHERE ARE YOU GOING?'  I SAID, 'I GO HOME.'  AFTER THEN, HE DIDN'T ASK
ME ANYTHING.  HE WAS IN A CAR.  I CONTINUED TO WALK."  THE OFFICER
PURSUED PETITIONER AND GRABBED HIM.  PETITIONER TESTIFIED, "I DIDN'T
RESIST BECAUSE I WAS CONCERNED ABOUT MY HEALTH AND MY LIFE." 

THERE IS NO INDICATION IN THE RECORD THAT IT WAS THE PHYSICAL ACT OF
PUSHING OFF THE OFFICER'S ARM THAT PRECIPITATED THE ARREST OR SUPPORTED
THE CONVICTION.  HAD THIS BEEN SO, ONE COULD ARGUE, PERHAPS, THAT MR.
NORWELL MIGHT HAVE BEEN PROPERLY CHARGED FOR DISORDERLY CONDUCT OR
UNDER A STATUTE OR ORDINANCE THAT MADE IT ILLEGAL TO INTERFERE WITH A
POLICE OFFICER IN THE PERFORMANCE OF HIS DUTY.  THAT, HOWEVER, IS NOT
THIS CASE.  OFFICER JOHNSON TESTIFIED THAT HE "DIDN'T CHARGE THE MAN
WITH RESISTING BECAUSE I DIDN'T THINK IT WAS A WARRANTED CAUSE,"  BUT
THAT HE ARRESTED PETITIONER FOR "BEING LOUD AND BOISTEROUS,"  AND "(HE
WAS ANNOYING ME."  THE MUNICIPAL JUDGE FOUND THAT PETITIONER WAS
"HOSTILE" TO THE OFFICER.  "I'M SURE (THE OFFICER) HAD NO FEELING
AGAINST THIS MAN, BUT THIS MAN HAD A FEELING AGAINST HIM, AT THIS TIME,
AND WAS NOT AT A LIBERTY TO SAY."  THE COURT PROCEEDED TO FIND MR.
NORWELL "GUILTY OF DISORDERLY CONDUCT WITH THE INTENT TO ANNOY" AND
FINED HIM $10 AND COSTS "FOR BEING SO NOISY." 

UPON THIS RECORD, WE ARE CONVINCED THAT THE PETITIONER WAS ARRESTED
AND CONVICTED MERELY BECAUSE HE VERBALLY AND NEGATIVELY PROTESTED
OFFICER JOHNSON'S TREATMENT OF HIM.  SURELY, ONE IS NOT TO BE PUNISHED
FOR NONPROVOCATIVELY VOICING HIS OFJECTION TO WHAT HE OBVIOUSLY FELT
WAS A HIGHLY QUESTIONABLE DETENTION BY A POLICE OFFICER.  REGARDLESS OF
WHAT THE MOTIVATION MAY HAVE BEEN BEHIND THE EXPRESSION IN THIS CASE,
IT IS CLEAR THAT THERE WAS NO ABUSIVE LANGUAGE OR FIGHTING WORDS.  IF
THERE HAD BEEN, WE WOULD HAVE A DIFFERENT CASE.  SEE CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568 (1942). 

THE PETITION FOR CERTIORARI IS GRANTED.  THE JUDGMENT IS REVERSED. 
..END :



TAYLOR V. UNITED STATES 414 U.S. 17 


       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIRST CIRCUIT 

NO. 72 - 6915.  DECIDED NOVEMBER 5, 1973--CERTIORARI GRANTED; 478
F.2D 689, AFFIRMED. 


    PETITIONER EFFECTIVELY WAIVED HIS RIGHT TO BE PRESENT AT HIS

  CRIMINAL TRIAL BY VOLUNTARILY ABSENTING HIMSELF THEREFROM THROUGH

  FAILURE TO RETURN TO THE COURTROOM AFTER THE MORNING SESSION OF

  THE FIRST DAY OF TRIAL, AND THE COURT OF APPEALS PROPERLY APPLIED

  FED. RULE CRIM. PROC. 43 AND AFFIRMED THE CONVICTION, IT BEING

  UNNECESSARY TO SHOW THAT PETITIONER KNEW OR HAD BEEN EXPRESSLY

  WARNED BY THE TRIAL COURT NOT ONLY THAT HE HAD A RIGHT TO BE

  PRESENT BUT ALSO THAT THE TRIAL WOULD CONTINUE IN HIS ABSENCE AND

  THEREBY EFFECTIVELY FORECLOSE HIS RIGHT TO TESTIFY AND TO

  CONFRONT PERSONALLY THE WITNESSES AGAINST HIM.  DIAZ V. UNITED

  STATES, 223 U.S. 442 (1912). 

PER CURIAM. 

ON THE FIRST DAY OF HIS TRIAL ON FOUR COUNTS OF SELLING COCAINE IN
VIOLATION OF 26 U.S.C. 4705(A) (1964 ED.), PETITIONER FAILED TO RETURN
FOR THE AFTERNOON SESSION.  HE HAD BEEN PRESENT AT THE EXPIRATION OF
THE MORNING SESSION WHEN THE COURT ANNOUNCED THAT THE LUNCH RECESS
WOULD LAST UNTIL 2 P.M., AND HE HAD BEEN TOLD BY HIS ATTORNEY TO RETURN
TO THE COURTROOM AT THAT TIME.  THE JUDGE RECESSED THE TRIAL UNTIL THE
FOLLOWING MORNING, BUT PETITIONER STILL DID NOT APPEAL.  HIS WIFE
TESTIFIED THAT SHE HAD LEFT THE COURTROOM THE PREVIOUS DAY WITH
PETITIONER AFTER THE MORNING SESSION; THAT THEY HAD SEPARATED AFTER
SHARING A TAXICAB TO ROXBURY; THAT HE HAD NOT APPEARED ILL; AND,
FINALLY, THAT SHE HAD NOT HEARD FROM HIM SINCE.  THE TRIAL JUDGE THEN
DENIED A MOTION FOR MISTRIAL BY DEFENSE COUNSEL, WHO ASSERTED THAT THE
JURORS' MINDS WOULD BE TAINTED BY PETITIONER'S ABSENCE AND THAT
CONTINUATION OF THE TRIAL IN HIS ABSENCE DEPRIVE HIM OF HIS SIXTH
AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM.  RELYING UPON FED.
RULE CRIM. PROC. 43, /1/  WHICH EXPRESSLY PROVIDES THAT DEFENDANT'S
VOLUNTARY ABSENCE "SHALL NOT PREVENT CONTINUING THE TRIAL," THE COURT
FOUND THAT PETITIONER HAD ABSENTED HIMSELF VOLUNTARILY FROM THE
PROCEEDINGS. 

THROUGHOUT THE REMAINDER OF THE TRIAL, THE COURT ADMONISHED THE JURY
THAT NO INFERENCE OF GUILT COULD BE DRAWN FROM PETITIONER'S ABSENCE. 
PETITIONER WAS FOUND GUILTY ON ALL FOUR COUNTS.  FOLLOWING HIS
SUBSEQUENT ARREST, HE WAS SENTENCED TO THE STATUTORY FIVE-YEAR
MINIMUM.  THE COURT OF APPEALS AFFIRMED THE CONVICTION, 478 F. 2D 681
(CA1 1973), AND WE NOW GRANT THE MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND THE PETITION FOR CERTIORARI AND AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS. 

THERE IS NO CHALLENGE TO THE TRIAL COURT'S CONCLUSION THAT
PETITIONER'S ABSENCE FROM THE TRIAL WAS VOLUNTARY, /2/  AND NO CLAIM
THAT THE CONTINUATION OF THE TRIAL WAS NOT AUTHORIZED BY RULE 43.  NOR
ARE WE PERSUADED THAT RULE 43 IS UNCONSTITUTIONAL OR THAT PETITIONER
WAS DEPRIVED OF ANY CONSTITUTIONAL RIGHTS IN THE CIRCUMSTANCES BEFORE
US.  RULE 43 HAS REMAINED UNCHANGED SINCE THE ADOPTION OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE IN 1945; AND WITH RESPECT TO THE
CONSEQUENCES OF THE DEFENDANT'S VOLUNTARY ABSENCE FROM TRIAL, IT
REFLECTS THE LONGSTANDING RULE RECOGNIZED BY THIS COURT IN DIAZ V.
UNITED STATES, 223 U.S. 442, 455 (1912): 

"(WHERE THE OFFENSE IS NOT CAPITAL AND THE ACCUSED IS NOT IN
CUSTODY, THE PREVAILING RULE HAS BEEN, THAT IF, AFTER THE TRIAL HAS
BEGUN IN HIS PRESENCE, HE VOLUNTARILY ABSENTS HIMSELF, THIS DOES NOT
NULLIFY WHAT HAS BEEN DONE OR PREVENT THE COMPLETION OF THE TRIAL, BUT,
ON THE CONTRARY, OPERATES AS A WAIVER OF HIS RIGHT TO BE PRESENT AND
LEAVES THE COURT FREE TO PROCEED WITH THE TRIAL IN LIKE MANNER AND WITH
LIKE EFFECT AS IF HE WERE PRESENT."  (CITATIONS OMMITTED.)  UNDER THIS
RULE, THE DISTRICT COURT AND THE COURT OF APPEALS CORRECTLY REJECTED
PETITIONER'S CLAIMS. 

PETITIONER, HOWEVER, INSISTS THAT HIS MERE VOLUNTARY ABSENCE FROM
HIS TRIAL CANNOT BE CONSTRUED AS AN EFFECTIVE WAIVER, THAT IS, "AN
INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR
PRIVILEGE," JOHNSON V. ZERBST, 304 U.S. 458, 464 (1938), UNLESS IT IS
DEMONSTRATED THAT HE KNEW OR HAD BEEN EXPRESSLY WARNED BY THE TRIAL
COURT NOT ONLY THAT HE HAD A RIGHT TO BE PRESENT BUT ALSO THAT THE
TRIAL WOULD CONTINUE IN HIS ABSENCE AND THEREBY EFFECTIVELY FORECLOSE
HIS RIGHT TO TESTIFY AND TO CONFRONT PERSONALLY THE WITNESSES AGAINST
HIM.  /3/ 

LIKE THE COURT OF APPEALS, WE CANNOT ACCEPT THIS POSITION. 
PETITIONER HAD NO RIGHT TO INTERRUPT THE TRIAL BY HIS VOLUNTARY
ABSENCE, AS HE IMPLICITLY CONCEDES BY URGING ONLY THAT HE SHOULD HAVE
BEEN WARNED THAT NO SUCH RIGHT EXISTED AND THAT THE TRIAL WOULD PROCEED
IN HIS ABSENCE.  THE RIGHT AT ISSUE IS THE RIGHT TO BE PRESENT, AND THE
QUESTION.BECOMES WHETHER THAT RIGHT WAS EFFECTIVELY WAIVED BY HIS
VOLUNTARY ABSENCE.  CONSISTENT WITH RULE 43 AND DIAZ, WE CONCLUDE THAT
IT WAS. 

IT IS WHOLLY INCREDIBLE TO SUGGEST THAT PETITIONER, WHO WAS AT
LIBERTY ON BAIL, HAD ATTENDED THE OPENING SESSION OF HIS TRIAL, AND HAD
A DUTY TO BE PRESENT AT THE TRIAL, SEE STACK V. BOYLE, 342 U.S. 1, 4 -
5 (1951), ENTERTAINED ANY DOUBTS ABOUT HIS RIGHT TO BE PRESENT AT EVERY
STAGE OF HIS TRIAL.  IT SEEMS EQUALLY INCREDIBLE TO US, AS IT DID TO
THE COURT OF APPEALS, "THAT A DEFENDANT WHO FLEES FROM A COURTROOM IN
THE MIDST OF A TRIAL--WHERE JUDGE, JURY, WITNESSES AND LAWYERS ARE
PRESENT AND READY TO CONTINUE--WOULD NOT KNOW THAT AS A CONSEQUENCE THE
TRIAL COULD CONTINUE IN HIS ABSENCE."  478 F.2D 689, 691 (1973).  HERE
THE COURT OF APPEALS NOTED THAT WHEN PETITIONER WAS QUESTIONED AT
SENTENCING REGARDING HIS FLIGHT, HE NEVER CONTENDED THAT HE WAS UNAWARE
THAT A CONSEQUENCE OF HIS FLIGHT WOULD BE A CONTINUATION OF THE TRIAL
WITHOUT HIM.  MOREOVER, NO ISSUE OF THE VOLUNTARINESS OF HIS
DISAPPEARANCE WAS EVER RAISED.  AS WAS RECENTLY NOTED, "THERE CAN BE NO
DOUBT WHATEVER THAT THE GOVERNMENTAL PREROGATIVE TO PROCEED WITH A
TRIAL MAY NOT BE DEFEATED BY CONDUCT OF THE ACCUSED THAT PREVENTS THE
TRIAL FROM GOING FORWARD."  ILLINOIS V. ALLEN, 397 U.S. 337, 349 (1970)
(BRENNAN, J., CONCURRING).  UNDER THE CIRCUMSTANCES PRESENT HERE, THE
COURT OF APPEALS PROPERLY APPLIED RULE 43 AND AFFIRMED THE JUDGMENT OF
CONVICTION. 

              AFFIRMED. 

/1/  RULE 43 PROVIDES, IN PERTINENT PART: 

"THE DEFENDANT SHALL BE PRESENT AT THE ARRAIGNMENT, AT EVERY STAGE
OF THE TRIAL INCLUDING THE IMPANELING OF THE JURY AND THE RETURN OF THE
VERDICT, AND AT THE IMPOSITION OF SENTENCE, EXCEPT AS OTHERWISE
PROVIDED BY THESE RULES.  IN PROSECUTIONS FOR OFFENSES NOT PUNISHABLE
BY DEATH, THE DEFENDANT'S VOLUNTARY ABSENCE AFTER THE TRIAL HAS BEEN
COMMENCED IN HIS PRESENCE SHALL NOT PREVENT CONTINUING THE TRIAL TO AND
INCLUDING THE RETURN OF THE VERDICT." 

/2/  FOLLOWING AN INDEPENDENT REVIEW OF THE TRANSCRIPTS FROM THE
TRIAL AND SENTENCING HEARING, THE COURT OF APPEALS ALSO CONCLUDED THAT
PETITIONER KNEW THAT HE WAS ENTITLED TO BE PRESENT IN COURT DURING
EVERY STAGE OF HIS TRIAL AND THAT HIS ABSENCE WAS A PRODUCT OF HIS
VOLUNTARY CHOICE.  478 F.2D 689, 691 N. 4 (1973). 

/3/  THIS WAS SUBSTANTIALLY THE HOLDING OF UNITED STATES V. MC
PHERSON, 137 U.S. APP. D.C. 192, 195, 421 F.2D 1127, 1130 (1969), ON
WHICH PETITIONER RELIES.  BUT THE COURT OF APPEALS IN THE CASE NOW
BEFORE US DISAGREED WITH MC PHERSON, AND IN OUR VIEW, RIGHTLY SO.  MC
PHERSON ITSELF APPEARS TO HAVE STRAYED FROM RECENT PRECEDENT IN THE
DISTRICT OF COLUMBIA CIRCUIT, CURETON V. UNITED STATES, 130 U.S. APP.
D.C. 22, 396 F. 2D 671 (1968), AS WELL AS FROM OLDER AUTHORITY.  SEE
FALK V. UNITED STATES, 15 APP. D.C. 446, 454 - 461 (1899), IN CURETON,
SUPRA, JUDGE FAHY STATED THE CONTROLLING RULE:  "(IF A DEFENDANT AT
LIBERTY REMAINS AWAY DURING HIS TRIAL THE COURT MAY PROCEED PROVIDED IT
IS CLEARLY ESTABLISHED THAT HIS ABSENCE IS VOLUNTARY.  HE MUST BE AWARE
OF THE PROCESSES TAKING PLACE, OF HIS RIGHT AND OF HIS OBLIGATION TO BE
PRESENT, AND HE MUST HAVE NO SOUND REASON FOR REMAINING AWAY."  130
U.S. APP. D.C., AT 27, 396 F.2D, AT 676 (CITATION OMITTED). 
..END :





WAINWRIGHT, CORRECTIONS DIRECTOR, ET AL. V. STONE ET AL. 414 U.S. 21 




       APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH

           CIRCUIT 

NO. 73 - 122.  DECIDED NOVEMBER 5, 1973--478 F.2D 390, REVERSED. 


    FLORIDA STATUTORY PROVISIONS PROSCRIBING "THE ABOMINABLE AND

  DETESTABLE CRIME AGAINST NATURE, EITHER WITH MANKIND OR BEAST . .

  . ," IN LIGHT OF THE STATE SUPREME COURT'S LONGSTANDING

  CONSTRUCTION AS APPLYING TO COPULATION PER OS AND PER ANUM, HELD

  NOT UNCONSTITUTIONALLY VAGUE; AND THAT COURT'S LATER RULING AFTER

  APPELLEES' CONVICTIONS FOR THOSE OFFENSES HAD BECOME FINAL

  HOLDING THE STATUTE VOID FOR VAGUENESS AS APPLIED TO ORAL AND

  ANAL SEXUAL ACTIVITY DID NOT REQUIRE REVERSAL OF APPELLEES'

  CONVICTIONS SINCE THE SUBSEQUENT RULING WAS PROSPECTIVE ONLY AND

AT THE TIME APPELLEES COMMITTED THE ACTS THEY WERE ON CLEAR

  NOTICE THAT THEIR CONDUCT WAS CRIMINAL UNDER THE STATUTE AS THEN

  CONSTRUED. 

PER CURIAM. 

IN SEPARATE TRIALS, APPELLEES WERE CONVICTED OF VIOLATING FLA. STAT.
800.01 (1965), WHICH PROSCRIBES "THE ABOMINABLE AND DETESTABLE CRIME
AGAINST NATURE, EITHER WITH MANKIND OF WITH BEAST . . . ."  /1/  HAVING
EXHAUSTED STATE REMEDIES, /2/  APPELLEES SOUGHT FEDERAL HABEAS CORPUS,
ASSERTING, AMONG OTHER THINGS, THAT THE FLORIDA STATUTE WAS
IMPERMISSIBLY VAGUE.  THE WRIT WAS GRANTED TO BOTH APPELLEES.  THE
COURT OF APPEALS AFFIRMED ON THE SOLE GROUND THAT 800.01 WAS
UNCONSTITUTIONALLY VAGUE AND VOID ON ITS FACE FOR FAILURE TO GIVE
APPELLEES ADEQUATE NOTICE THAT THE CONDUCT FOR WHICH THEY WERE
CONVICTED WAS FORBIDDEN BY LAW.  478 F.2D 390 (1973). 

WE REVERSE.  WE PERCEIVE NO VIOLATION OF THE "UNDERLYING PRINCIPLE .
. . THAT NO MAN SHALL BE HELD CRIMINALLY RESPONSIBLE FOR CONDUCT WHICH
HE COULD NOT REASONABLY UNDERSTAND TO BE PROSCRIBED."  UNITED STATES V.
HARRISS, 347 U.S. 612, 617 (1954).  STONE WAS CONVICTED FOR COPULATION
PER OS AND PER ANUM, HUFFMAN FOR COPULATION PER ANUM.  THESE VERY ACTS
HAD LONG BEEN HELD TO CONSTITUTE "THE ABOMINABLE AND DETESTABLE CRIME
AGAINST NATURE" UNDER 800.01 AND PREDECESSOR STATUTES.  DELANEY V.
STATE, 190 SO.2D 578 (FLA. SUP. CT. 1966), APPEAL DISMISSED, 387 U.S.
426 (1967), DECLARED AS MUCH; AND THIS HAD BEEN THE CASE SINCE 1921
UNDER EPHRAIM V. STATE, 82 FLA. 93, 89 SO. 344 (1921).  DELANEY ALSO
HELD THAT THERE COULD BE NO COMPLAINT OF VAGUENESS OR LACK OF NOTICE
THAT THE DEFENDANT'S CONDUCT WAS CRIMINAL WHERE THE ACTS COMMITTED WERE
AMONG THOSE THAT PRIOR CASES HAD HELD COVERED BY THE STATUTE. 

DELANEY AND ITS SUPPORTING CASES REQUIRE REVERSAL OF THE COURT OF
APPEALS.  THE JUDGMENT OF FEDERAL COURTS AS TO THE VAGUENESS OR NOT OF
A STATE STATUTE MUST BE MADE IN THE LIGHT OF PRIOR STATE CONSTRUCTIONS
OF THE STATUTE.  FOR THE PURPOSE OF DETERMINING WHETHER A STATE STATUTE
IS TOO VAGUE AND INDEFINITE TO CONSTITUTE VALID LEGISLATION "WE MUST
TAKE THE STATUTE AS THOUGH IT READ PRECISELY AS THE HIGHEST COURT OF
THE STATE HAS INTERPRETED IT."  MINNESOTA EX REL. PEARSON V. PROBATE
COURT, 309 U.S. 270, 273 (1940).  WHEN A STATE STATUTE HAS BEEN
CONSTRUED TO FORBID IDENTIFIABLE CONDUCT SO THAT "INTERPRETATION BY
(THE STATE COURT) PUTS THESE WORDS IN THE STATUTE AS DEFINITELY AS IF
IT HAD BEEN SO AMENDED BY THE LEGISLATIVE," CLAIMS OF IMPERMISSIBLE
VAGUENESS MUST BE JUDGED IN THAT LIGHT.  WINTERS V. NEW YORK, 333 U.S.
507, 514 (1948).  THIS HAS BEEN THE NORMAL VIEW IN THIS COURT.  FOX V.
WASHINGTON, 236 U.S. 173, 277 (1915); BEAUHARNAIS V. ILLINOIS, 343 U.S.
250, 253 (1952); MISHKIN V. NEW YORK, 383 U.S. 502 506 (1966).  THE
COURT OF APPEALS, THEREFORE, WAS NOT FREE TO IGNORE DELANEY AND RELATED
CASES; AND AS CONSTRUED BY THOSE CASES, 800.01 AFFORDED APPELLEES AMPLE
NOTICE THAT THEIR CONDUCT WAS FORBIDDEN BY LAW. 

APPELLEES RELY ON FRANKLIN V. STATE, 257 SO.2D 21 (FLA. SUP. CT.
1971), TO AVOID THE EFFICACY OF PRIOR CONSTRUCTIONS OF 800.01.  IN THAT
CASE, DECIDED AFTER APPELLEES' CONVICTIONS HAD BECOME FINAL, THE
FLORIDA SUPREME COURT RECONSIDERED DELANEY AND HELD THAT IF 800.01 WAS
INTENDED TO REACH ORAL AND ANAL SEXUAL ACTIVITY, THAT INTENTION SHOULD
APPEAR ON THE FACE OF THE STATUTE; OTHERWISE IT WAS VOID FOR VAGUENESS
AND UNCERTAINTY IN ITS LANGUAGE.  BUT THIS HOLDING DID NOT REMOVE THE
FACT THAT WHEN APPELLEES COMMITTED THE ACTS WITH WHICH THEY WERE
CHARGED, THEY WERE ON CLEAR NOTICE THAT THEIR CONDUCT WAS CRIMINAL
UNDER THE STATUTE AS THEN CONSTRUED.  THUS, THE SUPREME COURT OF
FLORIDA EXPRESSLY RULED IN FRANKLIN THAT "THIS JUDGMENT HOLDING THE
FELONY STATUTE VOID IS NOT RETROACTIVE, BUT PROSPECTIVE ONLY," ID., AT
24; AND SUBSEQUENTLY THE FLORIDA COURTS DENIED APPELLEE STONE'S REQUEST
FOR RELIEF BASED ON THE FRANKLIN CASE.  STONE V. STATE, SUPRA, N. 2. 
THE STATE SUPREME COURT DID NOT OVERRULE DELANEY WITH RESPECT TO PRE
FRANKLIN CONVICTIONS.  NOR WAS IT CONSTITUTIONALLY COMPELLED TO DO SO
OR TO MAKE RETROACTIVE ITS NEW CONSTRUCTION OF THE FLORIDA STATUTE:  "A
STATE IN DEFINING THE LIMITS OF ADHERENCE TO PRECEDENT MAY MAKE A
CHOICE FOR ITSELF BETWEEN THE PRINCIPLE OF FORWARD OPERATION AND THAT
OF RELATION BACKWARD.  IT MAY SAY THAT DECISIONS OF ITS HIGHEST COURT,
THOUGH LATER OVERRULED, ARE LAW NONE THE LESS FOR INTERMEDIATE
TRANSACTIONS."  GREAT NORTHERN R. CO. V. SUNBURST OIL & REFINING CO.,
287 U.S. 358, 364 (1932).  CONTRARY TO THE JUDGMENT OF THE COURT OF
APPEALS, 800.01 WAS NOT VOID AT THE TIME APPELLEES PERFORMED THE ACTS
FOR WHICH THEY WERE CONVICTED.  THE MOTION OF APPELLEES TO PROCEED IN
FORMA PAUPERIS IS GRANTED THE THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED. 

              SO ORDERED. 

/1/  FLA. STAT. 800.01 (SUPP. 1973) PRESENTLY PROVIDES:  "WHOEVER
COMMITS THE ABOMINABLE AND DETESTABLE CRIME AGAINST NATURE, EITHER WITH
MANKIND OR WITH BEAST, SHALL BE GUILTY OF A FELONY OF THE SECOND
DEGREE, PUNISHABLE AS PROVIDED IN (OTHER STATUTORY SECTIONS)."  AT THE
TIME OF APPELLEES' CONVICTIONS THE MAXIMUM PENALTY WAS 20 YEARS'
IMPRISONMENT. 

/2/  STONE'S CONVICTION WAS AFFIRMED ON DIRECT APPEAL, STONE V.
STATE, 245 SO. 2D 91 (FLA. DIST. CT. APP. 1971), AND HIS MOTION FOR
POST-CONVICTION RELIEF WAS DENIED.  STONE V. STATE, 264 SO. 2D 81 (FLA.
DIST. CT. APP.), CERT. DENIED, 267 SO. 2D 329 (FLA. SUP. CT. 1972).  IT
APPEARS THAT APPELLEE HUFFMAN APPEALED FROM HIS CONVICTION, BUT DID NOT
SEEK COLLATERAL RELIEF.  THE DISTRICT COURT FOUND EXHAUSTION
UNNECESSARY SINCE HUFFMAN'S CLAIM HAD ALREADY BEEN DETERMINED ADVERSELY
BY THE RULING IN FRANKLIN V. STATE, 257 SO. 2D 21 (FLA. SUP. CT. 1971),
DISCUSSED IN TEXT INFRA. 
..END :












MOORE V. ARIZONA 414 U.S. 25 


       ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           ARIZONA 

NO. 73 - 5002.  DECIDED NOVEMBER 5, 1973--CERTIORARI GRANTED; 109
ARIZ. 111, 506 P.2D 242, VACATED AND REMANDED. 


PER CURIAM. 

ALMOST THREE YEARS AFTER HE WAS CHARGED AND 28 MONTHS AFTER HE FIRST
DEMANDED THAT ARIZONA EITHER EXTRADITE HIM FROM CALIFORNIA, WHERE HE
WAS SERVING A PRISON TERM, OR DROP A DETAINER AGAINST HIM, PETITIONER
WAS TRIED FOR MURDER IN ARIZONA.  PRIOR TO TRIAL, HE FILED A STATE
HABEAS CORPUS APPLICATION, ALLEGING A DEPRIVATION OF HIS SIXTH AND
FOURTEENTH AMENDMENT RIGHT TO A SPEEDY TRIAL.  IN AFFIRMING THE DENIAL
OF THE PETITION, THE ARIZONA SUPREME COURT RULED THAT UNDER THIS
COURT'S DECISIONS IN DICKEY V. FLORIDA, 398 U.S. 30 (1970), AND BARKER
V. WINGO, 407 U.S. 514 (1972), A SHOWING OF PREJUDICE TO THE DEFENSE AT
TRIAL WAS ESSENTIAL TO ESTABLISH A FEDERAL SPEEDY TRIAL CLAIM.  THE
STATE COURT FOUND NO SUCH PREJUDICE HERE BECAUSE PETITIONER WAS
AFFORDED A PRELIMINARY HEARING AND ALLOWED TO SUBPOENA WITNESSES.  /1/
109 ARIZ. 111, 506 P.2D 242 (1973). 

THE STATE COURT WAS IN FUNDAMENTAL ERROR IN ITS READING OF BARKER V.
WINGO AND IN THE STANDARD APPLIED IN JUDGING PETITIONER'S SPEEDY TRIAL
CLAIM.  BARKER V. WINGO EXPRESSLY REJECTED THE NOTION THAT AN
AFFIRMATIVE DEMONSTRATION OF PREJUDICE WAS NECESSARY TO PROVE A DENIAL
OF THE CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL: 

     "WE REGARD NONE OF THE FOUR FACTORS IDENTIFIED ABOVE (LENGTH
OF

  DELAY, REASON FOR DELAY, DEFENDANT'S ASSERTION OF HIS RIGHT, AND

  PREJUDICE TO THE DEFENDANT) AS EITHER A NECESSARY OR SUFFICIENT

  CONDITION TO THE FINDING OF A DEPRIVATION OF THE RIGHT OF SPEEDY

  TRIAL.  RATHER, THEY ARE RELATED FACTORS AND MUST BE CONSIDERED

  TOGETHER WITH SUCH OTHER CIRCUMSTANCES AS MAY BE RELEVANT.  IN

  SUM, THESE FACTORS HAVE NO TALISMANIC QUALITIES; COURTS MUST

  STILL ENGAGE IN A DIFFICULT AND SENSITIVE BALANCING PROCESS. 

  BUT, BECAUSE WE ARE DEALING WITH A FUNDAMENTAL RIGHT OF THE

  ACCUSED, THIS PROCESS MUST BE CARRIED OUT WITH FULL RECOGNITION

  THAT THE ACCUSED'S INTEREST IN A SPEEDY TRIAL IS SPECIFICALLY

  AFFIRMED IN THE CONSTITUTION."  407 U.S., AT 533 (FOOTNOTE

  OMITTED). 

IN ADDITION TO POSSIBLE PREJUDICE, ANY COURT MUST THUS CAREFULLY WEIGH
THE REASONS FOR THE DELAY IN BRINGING AN INCARCERATED DEFENDANT TO
TRIAL.  IN THE FACE OF PETITIONER'S REPEATED DEMANDS, DID THE STATE
DISCHARGE ITS "CONSTITUTIONAL DUTY TO MAKE A DILIGENT, GOOD-FAITH
EFFORT TO BRING HIM (TO TRIAL)"?  SMITH V. HOOEY, 393 U.S. 374, 383
(1969). 

MOREOVER, PREJUDICE TO A DEFENDANT CAUSED BY DELAY IN BRINGING HIM
TO TRIAL IS NOT CONFINED TO THE POSSIBLE PREJUDICE TO HIS DEFENSE IN
THOSE PROCEEDINGS.  /2/  INORDINATE DELAY, 

"WHOLLY ASIDE FROM POSSIBLE PREJUDICE TO A DEFENSE ON THE MERITS,
MAY 'SERIOUSLY INTERFERE WITH THE DEFENDANT'S LIBERTY, WHETHER HE IS
FREE ON BAIL OR NOT, AND . . . MAY DISRUPT HIS EMPLOYMENT, DRAIN HIS
FINANCIAL RESOURCES, CURTAIL HIS ASSOCIATIONS, SUBJECT HIM TO PUBLIC
OBLOQUY, AND CREATE ANXIETY IN HIM, HIS FAMILY AND HIS FRIENDS.' 
UNITED STATES V. MARION, 404 U.S. 307, 320 (1971).  THESE FACTORS ARE
MORE SERIOUS FOR SOME THAN FOR OTHERS, BUT THEY ARE INEVITABLY PRESENT
IN EVERY CASE TO SOME EXTENT, FOR EVERY DEFENDANT WILL EITHER BE
INCARCERATED PENDING TRIAL OR ON BAIL SUBJECT TO SUBSTANTIAL
RESTRICTIONS ON HIS LIBERTY."  BARKER V. WINGO, SUPRA, AT 537 (WHITE,
J., CONCURRING).  SEE ALSO ID., AT 532 - 533 (MAJORITY OPINION).  SOME
OF THESE FACTORS MAY CARRY QUITE DIFFERENT WEIGHT WHERE A DEFENDANT IS
INCARCERATED AFTER CONVICTION IN ANOTHER STATE, BUT NO COURT SHOULD
OVERLOOK THE POSSIBLE IMPACT PENDING CHARGES MIGHT HAVE ON HIS
PROSPECTS FOR PAROLE AND MEANINGFUL REHABILITATION.  STRUNK V. UNITED
STATES, 412 U.S. 434, 439 (1973). 

THE STATE OF ARIZONA ITSELF HAS CONCEDED THAT THIS IS A CLOSE CASE
UNDER BARKER V. WINGO AND THAT IT IS ARGUABLE WHETHER THE THREE-YEAR
DELAY WAS EXCUSABLE.  BECAUSE WE AGREE AND BECAUSE "THE RIGHT TO A
SPEEDY TRIAL IS AS FUNDAMENTAL AS ANY OF THE RIGHTS SECURED BY THE
SIXTH AMENDMENT," KLOPFER V. NORTH CAROLINA, 386 U.S. 213, 223 (1967),
WE GRANT THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE
PETITION, VACATE THE JUDGMENT, AND REMAND TO THE ARIZONA SUPREME COURT
TO REASSESS PETITIONER'S CASE UNDER THE STANDARDS MANDATED BY SMITH,
BARKER, AND DICKEY. 

              SO ORDERED. 

/1/  THE COURT DID NOT MENTION THE UNAVAILABILITY OF ONE OF THE TWO
KEY WITNESSES AS THE RESULT OF HER DEPORTATION 18 MONTHS AFTER THE
CHARGE HAD BEEN FILED AGAINST PETITIONER. 

/2/  THE EXAMPLES OF POSSIBLE TRIAL PREJUDICE RECITED IN BARKER BEAR
DIRECTLY ON THIS CASE:  "IF WITNESSES DIE OR DISAPPEAR DURING A DELAY,
THE PREJUDICE IS OBVIOUS.  THERE IS ALSO PREJUDICE IF DEFENSE WITNESSES
ARE UNABLE TO RECALL ACCURATELY EVENTS OF THE DISTANT PAST.  LOSS OF
MEMORY, HOWEVER, IS NOT ALWAYS REFLECTED IN THE RECORD BECAUSE WHAT HAS
BEEN FORGOTTEN CAN RARELY BE SHOWN."  BARKER V. WINGO, 407 U.S. 514,
532 (1972). 
..END :








BERRY V. CITY OF CINCINNATI 414 U.S. 29 


       ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           OHIO 

NO. 73 - 5245.  DECIDED NOVEMBER 5, 1973--CERTIORARI GRANTED; 34
OHIO ST.2D 106, 296 N.E.2D 532, REVERSED. 


    PERSONS CONVICTED PRIOR TO THE DECISION IN ARGUERSINGER V.

  HAMLIN, 407 U.S. 25 (1972), ARE ENTITLED TO THE CONSTITUTIONAL

  RULE ENUNCIATED IN THAT CASE THAT, ABSENT A KNOWING AND

  INTELLIGENT WAIVER, AN INDIGENT ACCUSED MAY NOT BE IMPRISONED FOR

  ANY OFFENSE, WHETHER CLASSIFIED AS PETTY, MISDEMEANOR, OR FELONY,

  IF HE WAS DENIED THE ASSISTANCE OF COUNSEL, IF THEY ALLEGE AND

  PROVE A BONA FIDE, EXISTING CASE OR CONTROVERSY SUFFICIENT TO

  INVOKE THE JURISDICTION OF A FEDERAL COURT. 

PER CURIAM. 

PETITIONER, WHO WAS SERVING A SENTENCE FOR A MISDEMEANOR OFFENSE
WHEN ARGERSINGER V. HAMLIN, 407 U.S. 25 (1972), WAS DECIDED, SOUGHT
RELIEF IN THE STATE COURTS CLAIMING THAT BECAUSE ARGUERSINGER SHOULD BE
ACCORDED RETROACTIVE EFFECT AND BECAUSE HIS TRIAL AND SENTENCING WERE
UNCOUNSELED, HIS CONVICTION SHOULD BE INVALIDATED.  THE SUPREME COURT
OF OHIO REFUSED TO APPLY ARGERSINGER TO CONVICTIONS OCCURRING PRIOR TO
THAT DECISION.  CITY OF CINCINNATI V. BERRY, 34 OHIO ST.2D 106, 296
N.E.2D 532 (1973).  PETITIONER WAS ENLARGED ON BAIL PENDING ACTION ON
HIS CLAIM AND FACES REINCARCERATION SHOULD THE JUDGMENT OF THE OHIO
COURTS REMAIN UNDISTURBED.  THE MOTION TO PROCEED IN FORMA PAUPERIS AND
THE PETITION FOR CERTIORARI ARE GRANTED, AND THE JUDGMENT OF THE OHIO
SUPREME COURT IS REVERSED.  THOSE CONVICTED PRIOR TO THE DECISION IN
ARGERSINGER ARE ENTITLED TO THE CONSTITUTIONAL RULE ENUNCIATED IN THAT
CASE, KITCHENS V. SMITH, 401 U.S. 847 (1971); WILLIAMS V. UNITED
STATES, 401 U.S. 646, 653 AND N. 6 (1971) (OPINION OF WHITE, J.);
BURGETT V. TEXAS, 389 U.S. 109, 114 (1967); CF. ADAMS V. ILLINOIS, 405
U.S. 278 (1972), IF THEY ALLEGE AND PROVE A BONA FIDE, EXISTING CASE OR
CONTROVERSY SUFFICIENT TO INVOKE THE JURISDICTION OF A FEDERAL COURT. 
SIBRON V. NEW YORK, 392 U.S. 40, 50 - 58 (1968); CARAFAS V. LA VALLEE,
391 U.S. 234, 237 - 238 (1968); GINSBERG V. NEW YORK, 390 U.S. 629, 633
- 634, N. 2 (1968). 

SO ORDERED. 
..END :






















UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE V. HIBI 414 U.S.
5 



       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT 

NO. 72 - 1652.  DECIDED OCTOBER 23, 1973--CERTIORARI GRANTED; 475
F.2D 7, REVERSED. 


    NEITHER THE FAILURE TO FULLY PUBLICIZE THE RIGHTS TO

  NATURALIZATION AFFORDED BY THE NATIONALITY ACT OF 1940 TO

  NONCITIZENS WHO SERVED IN THE UNITED STATES ARMED FORCES DURING

  WORLD WAR II NOR THE FAILURE TO HAVE AN AUTHORIZED NATURALIZATION

  REPRESENTATIVE STATIONED IN THE PHILIPPINE ISLANDS DURING THE

  TIME SUCH RIGHTS WERE AVAILABLE, ESTOPPED THE GOVERNMENT FROM

  RELYING ON THE FACT THAT THE DEADLINE FOR FILING NATURALIZATION

  APPLICATIONS SUCH AS RESPONDENT FILIPINO'S HAD EXPIRED MORE THAN

  20 YEARS EARLIER. 

PER CURIAM. 

RESPONDENT FILED HIS PETITION FOR NATURALIZATION IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ON
SEPTEMBER 13, 1967.  THE DISTRICT COURT GRANTED THE PETITION, REJECTING
THE NEGATIVE RECOMMENDATION OF THE NATURALIZATION EXAMINER APPOINTED BY
THE ATTORNEY GENERAL PURSUANT TO 335 OF THE IMMIGRATION AND NATIONALITY
ACT, 66 STAT. 255, 8 U.S.C. 1446.  THE COURT OF APPEALS AFFIRMED, 475
F.2D 7 (CA9 1973), HOLDING THAT EVEN THOUGH THE DEADLINE FIXED BY
CONGRESS FOR THE FILING OF APPLICATIONS SUCH AS RESPONDENT'S HAD
EXPIRED MORE THAN 20 YEARS EARLIER, PETITIONER WAS "ESTOPPED" FROM
RELYING ON THIS FACT. 

RESPONDENT WAS BORN IN MANILA IN 1917, AND IN FEBRUARY 1941 ENLISTED
IN THE PHILIPPINE SCOUTS, A UNIT THAT WAS PART OF THE UNITED STATES
ARMY.  HE WAS CAPTURED BY THE JAPANESE ARMED FORCES AND RELEASED AFTER
SIX MONTHS' INTERNMENT.  IN APRIL 1945 AFTER THE LIBERATION OF THE
PHILIPPINES BY ALLIED FORCES, HE REJOINED THE SCOUTS AND SERVED UNTIL
HIS DISCHARGE IN DECEMBER 1945. 

PROVIDED FOR THE NATURALIZATION OF NONCITIZENS WHO SERVED HONORABLY IN
THE ARMED FORCES OF THE UNITED STATES DURING WORLD WAR II.  /1/
CONTINENTAL LIMITS OF THE UNITED STATES FROM SOME OF THE USUAL
REQUIREMENTS FOR NATURALIZATION, INCLUDING THOSE OF A PERIOD OF
RESIDENCE IN THE UNITED STATES AND LITERACY IN ENGLISH.  AN AMENDMENT
TO THIS SECTION SPECIFIED THAT ALL PETITIONS FILED UNDER IT HAD TO BE
FILED NO LATER THAN DECEMBER 31, 1946.  SECTION 702 PROVIDED FOR THE
OVERSEAS NATURALIZATION OF PERSONS ELIGIBLE FOR NATURALIZATION UNDER
701 WHO WERE NOT WITHIN THE JURISDICTION OF ANY COURT AUTHORIZED TO
NATURALIZE ALIENS; NATURALIZATION UNDER 702 COULD TAKE PLACE ONLY
DURING ACTIVE SERVICE IN THE ARMED FORCES.  SECTION 705 AUTHORIZED THE
COMMISSIONER OF IMMIGRATION AND NATURALIZATION, WITH THE APPROVAL OF
THE ATTORNEY GENERAL, TO MAKE SUCH RULES AND REGULATIONS AS WERE
NECESSARY TO CARRY INTO EFFECT THE PROVISIONS OF THE ACT. 

RESPONDENT ENTERED THE UNITED STATES FOR THE FIRST AND ONLY TIME ON
APRIL 25, 2964, MORE THAN 17 YEARS AFTER THE EXPIRATION OF THE TIME
LIMIT ESTABLISHED BY CONGRESS FOR CLAIMING NATURALIZATION UNDER THE
"EXEMPTIONS OF THE ACT."  HE ENTERED ON A VISITOR-FOR-BUSINESS VISA,
WHICH EXPIRED ON JUNE 30, 1964.  HIS SUBSEQUENT PETITION FOR
NATURALIZATION WAS BASED ON THE ASSERTION THAT THE GOVERNMENT WAS
ESTOPPED FROM RELYING ON THE STATUTORY TIME LIMIT WHICH CONGRESS HAD
ATTACHED TO THE PROVISIONS UNDER WHICH HE CLAIMED.  THE ESTOPPEL WAS
SAID TO ARISE FROM PETITIONER'S FAILURE TO ADVISE HIM, DURING THE TIME
HE WAS ELIGIBLE, OF HIS RIGHT TO APPLY FOR NATURALIZATION, AND FROM
PETITIONER'S FAILURE TO PROVIDE A NATURALIZATION REPRESENTATIVE IN THE
PHILIPPINES DURING ALL OF THE TIME RESPONDENT AND THOSE IN HIS CLASS
WERE ELIGIBLE FOR NATURALIZATION.  THE DISTRICT COURT ADOPTED
RESPONDENT'S CONTENTION, AND ITS CONCLUSIONS WERE UPHELD BY THE COURT
OF APPEALS. 

IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT IN A POSITION
IDENTICAL TO THAT OF A PRIVATE LITIGANT WITH RESPECT TO ITS ENFORCEMENT
OF LAWS ENACTED BY CONGRESS. 

"AS A GENERAL RULE LACHES OR NEGLECT OF DUTY ON THE PART OF OFFICERS
OF THE GOVERNMENT IS NO DEFENSE TO A SUIT BY IT TO ENFORCE A PUBLIC
RIGHT OR PROTECT A PUBLIC INTEREST.  . . . A SUIT BY THE UNITED STATES
TO ENFORCE AND MAINTAIN ITS POLICY RESPECTING LANDS WHICH IT HOLDS IN
TRUST FOR ALL THE PEOPLE STANDS UPON A DIFFERENT PLANE IN THIS AND SOME
OTHER RESPECTS FROM THE ORDINARY PRIVATE SUIT TO REGAIN THE TITLE TO
REAL PROPERTY OR TO REMOVE A CLOUD FROM IT."  UTAH POWER & LIGHT CO. V.
UNITED STATES, 243 U.S. 389, 409.  HERE THE PETITIONER HAS BEEN CHARGED
BY CONGRESS WITH ADMINISTERING AN ACT WHICH BOTH MADE AVAILABLE
BENEFITS OF NATURALIZATION TO PERSONS IN RESPONDENT'S CLASS AND
ESTABLISHED A CUTOFF DATE FOR THE CLAIMING OF SUCH BENEFITS. 
PETITIONER, IN ENFORCING THE CUTOFF DATE ESTABLISHED BY CONGRESS, AS
WELL AS IN RECOGNIZING CLAIMS FOR THE BENEFITS CONFERRED BY THE ACT, IS
ENFORCING THE PUBLIC POLICY ESTABLISHED BY CONGRESS. 

WHILE THE ISSUE OF WHETHER "AFFIRMATIVE MISCONDUCT" ON THE PART OF
THE GOVERNMENT MIGHT ESTOP IT FROM DENYING CITIZENSHIP WAS LEFT OPEN IN
MONTANA V. KENNEDY, 366 U.S. 308, 314, 315, NO CONDUCT OF THE SORT
THERE ADVERTED TO WAS INVOLVED HERE.  WE DO NOT THINK THAT THE FAILURE
TO FULLY PUBLICIZE THE RIGHTS WHICH CONGRESS ACCORDED UNDER THE ACT OF
1940, OR THE FAILURE TO HAVE STATIONED IN THE PHILIPPINE ISLANDS DURING
ALL OF THE TIME THOSE RIGHTS WERE AVAILABLE AN AUTHORIZED
NATURALIZATION REPRESENTATIVE, CAN GIVE RISE TO AN ESTOPPEL AGAINST THE
GOVERNMENT. 

RESPONDENT'S EFFORT TO CLAIM NATURALIZATION UNDER A STATUTE WHICH BY
ITS TERMS HAD EXPIRED MORE THAN 20 YEARS BEFORE HE FILED HIS LAWSUIT
MUST THEREFORE FAIL.  THE PETITION FOR CERTIORARI IS GRANTED AND THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

THE COURT TODAY SUMMARILY REVERSES THE DECISION OF THE COURT OF
APPEALS, WHICH FOUND THAT THE GOVERNMENT WAS ESTOPPED FROM DENYING
CITIZENSHIP TO RESPONDENT UNDER THE NATIONALITY ACT OF 1940. 

/1/  THE COURT REASONS THAT ESTOPPEL IS NOT EVEN ARGUABLY APPLICABLE
BECAUSE THERE WAS NO "AFFIRMATIVE MISCONDUCT" ON THE PART OF THE UNITED
STATES; IT IMPLIES THAT THERE WERE MERELY FAILURES TO "FULLY PUBLICIZE"
THE RIGHTS GIVEN BY THE ACT AND "TO HAVE STATIONED IN THE PHILIPPINE
ISLANDS DURING ALL OF THE TIME THOSE RIGHTS WERE AVAILABLE AN
AUTHORIZED NATURALIZATION REPRESENTATIVE."  FAILURES OF THIS KIND
COULD, PERHAPS, BE EXCUSED IF CAUSED BY THE EXIGENCIES OF WAR AS LONG
AS GOOD-FAITH EFFORTS TO CARRY OUT THE PROVISIONS OF THE ACT HAD BEEN
MADE. 

BUT THE COURT IGNORES THE RECORD AND THE DECISIONS BELOW WHEN IT
SPEAKS ONLY OF THESE FAILURES.  IN 1942, CONGRESS AMENDED THE
NATIONALITY ACT OF 1940 TO EXTEND THE BENEFITS OF CITIZENSHIP TO
INDIVIDUALS WHO HAD FOUGHT IN THE ARMED FORCES OF THE UNITED STATES
DURING WORLD WAR II, AUTHORIZING THE APPOINTMENT OF NATURALIZATION
OFFICERS TO CONFER THESE BENEFITS ON NONCITIZENS OUTSIDE THE
JURISDICTION OF A NATURALIZATION COURT.  /2/  BETWEEN 1943 AND 1946,
THESE OFFICERS TRAVELED FROM POST TO POST, THROUGH ENGLAND, ICELAND,
NORTH AFRICA, AND THE ISLANDS OF THE PACIFIC, NATURALIZING THOUSANDS OF
FOREIGN NATIONALS PURSUANT TO THE MANDATE OF CONGRESS. 

THE STORY IN THE PHILIPPINES WAS DIFFERENT.  AFTER THE JAPANESE
OCCUPATION OF THE PHILIPPINES ENDED, AN AMERICAN VICE-CONSUL WAS
AUTHORIZED TO COMMENCE NATURALIZATION PROCEEDINGS IN 1945.  ALMOST
IMMEDIATELY THEREAFTER, THE PHILIPPINE GOVERNMENT EXPRESSED ITS CONCERN
ABOUT FILIPINO MEN LEAVING THE TERRITORY AFTER BEING GRANTED AMERICAN
CITIZENSHIP.  IN RESPONSE TO THESE CONCERNS, THE COMMISSIONER OF
IMMIGRATION, ON SEPTEMBER 13, 1945, WROTE A LETTER TO THE ATTORNEY
GENERAL RECOMMENDING THAT THE "SITUATION . . . BE HANDLED BY REVOKING
THE AUTHORITY PREVIOUSLY GRANTED (THE VICE- COUNSUL) AND BY OMITTING TO
DESIGNATE ANY REPRESENTATIVE AUTHORIZED TO CONFER CITIZENSHIP IN THE
PHILIPPINE ISLANDS.  . . ."  THE COMMISSIONER'S RECOMMENDATION WAS
APPROVED BY THE ATTORNEY GENERAL ON SEPTEMBER 26, 1945, AND THE
AUTHORITY OF THE VICE-CONSUL TO NATURALIZE ALIEN SERVICEMEN IMMEDIATELY
REVOKED. 

BECAUSE OF THIS ACTION, THERE WAS NO AUTHORIZED NATURALIZATION
REPRESENTATIVE IN THE PHILIPPINES.  THE DISTRICT COURT FOUND AS A FACT
THAT RESPONDENT, HAD HE KNOWN ABOUT HIS RIGHT TO BE NATURALIZED WHILE
HE WAS IN THE ARMED FORCES AND HAD MEANS BEEN AVAILABLE, WOULD HAVE
APPLIED FOR NATURALIZATION.  INSTEAD, WITH NO MEANS AVAILABLE,
RESPONDENT WAS DISCHARGED FROM THE ARMED FORCES IN DECEMBER 1945,
THEREBY LOSING HIS RIGHT TO CLAIM CITIZENSHIP UNDER 702 OF THE 1940
ACT.  /3/ 

THE COURT'S OPINION IGNORES THE DELIBERATE--AND SUCCESSFUL--EFFORT
ON THE PART OF AGENTS OF THE EXECUTIVE BRANCH TO FRUSTRATE THE
CONGRESSIONAL PURPOSE AND TO DENY SUBSTANTIVE RIGHTS TO FILIPINOS SUCH
AS RESPONDENT BY ADMINISTRATIVE FIAT, INDICATING INSTEAD THAT THERE WAS
NO AFFIRMATIVE MISCONDUCT INVOLVED IN THIS CASE. 

THE RECORD DOES NOT SUPPORT THAT CONCLUSION.  I WOULD GRANT
CERTIORARI AND PUT THE CASE DOWN FOR ORAL ARGUMENT. 

/1/  C. 876, 54 STAT. 1137. 

/2/  AS AMENDED, ACT OF MAR. 27, 1942, C. 199, 701 - 705, 56 STAT.
182, THE NATIONALITY ACT WAIVED CERTAIN NORMAL REQUIREMENTS FOR
NATURALIZATION, SUCH AS RESIDENCY IN THE UNITED STATES AND LITERACY IN
ENGLISH FOR NONCITIZENS WHO HAD SERVED IN THE UNITED STATES ARMED
FORCES.  ID., 701.  SECTION 702 OF THE AMENDED ACT PROVIDED THAT ALIENS
COULD CLAIM THESE BENEFITS EVEN WHEN, LIKE RESPONDENT, THEY WERE
OUTSIDE THE JURISDICTION OF A NATURALIZATION COURT, BUT ONLY SO LONG AS
THEY WERE IN ACTIVE SERVICE IN THE ARMED FORCES, THIS SECTION ALSO
EXPLICITLY AUTHORIZED THE DESIGNATION OF NATURALIZATION OFFICERS TO
EFFECTUATE ITS PURPOSES: 

"DURING THE PRESENT WAR, ANY PERSON ENTITLED TO NATURALIZATION UNDER
NAVAL FORCES OF THE UNITED STATES IS NOT WITHIN THE JURISDICTION OF ANY
COURT AUTHORIZED TO NATURALIZE ALIENS, MAY BE NATURALIZED IN ACCORDANCE
WITH ALL THE APPLICABLE PROVISIONS OF SECTION 701 WITHOUT APPEARING
BEFORE A NATURALIZATION COURT.  THE PETITION FOR NATURALIZATION OF ANY
PETITIONER UNDER THIS SECTION SHALL BE MADE AND SWORN TO BEFORE, AND
FILED WITH, A REPRESENTATIVE OF THE IMMIGRATION AND NATURALIZATION
SERVICE DESIGNATED BY THE COMMISSIONER OF A DEPUTY COMMISSIONER, WHICH
DESIGNATED REPRESENTATIVE IS HEREBY AUTHORIZED TO RECEIVE SUCH PETITION
IN BEHALF OF THE SERVICE, TO CONDUCT HEARINGS THEREON, TO TAKE
TESTIMONY CONCERNING ANY MATTER TOUCHING OR IN ANY WAY AFFECTING THE
ADMISSIBILITY OF ANY SUCH PETITIONER FOR NATURALIZATION, TO CALL
WITNESSES, TO ADMINISTER OATHS, INCLUDING THE OATH OF THE PETITIONER
AND HIS WITNESSES TO THE PETITION FOR NATURALIZATION AND THE OATH OF
RENUNCIATION AND ALLEGIANCE PRESCRIBED BY SECTION 335 OF THIS ACT, AND
TO GRANT NATURALIZATION, AND TO ISSUE CERTIFICATES OF CITIZENSHIP . . .
."  ID., 702. 

/3/  SEE N. 2, SUPRA, IT WAS NOT UNTIL AUGUST 1946, EIGHT MONTHS
AFTER RESPONDENT'S DISCHARGE, THAT A NATURALIZATION AGENT WAS
REAPPOINTED FOR THE PHILIPPINES AND A GOOD-FAITH EFFORT MADE TO
NATURALIZE FILIPINOS UNDER 702 OF THE ACT.  IN FOUR MONTHS, 4,000
FILIPINOS TOOK ADVANTAGE OF THE OPPORTUNITY. 
..END :












DENNETT V. HOGAN, WARDEN 414 U.S. 12 


       ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS

           CORPUS 

NO. 72 - 6449.  DECIDED OCTOBER 23, 1973-- CERTIORARI GRANTED;
VACATED AND REMANDED. 


    SINCE THE COURT OF APPEALS WAS APPARENTLY UNAWARE OF THE

  INDIGENT PETITIONER'S INITIAL REQUEST FOR APPOINTMENT OF COUNSEL

  TO REPRESENT HIM ON APPEAL FROM A CONVICTION, AND MISTAKENLY

  BELIEVED THAT HE HAD NEVER FILED A FINANCIAL AFFIDAVIT WITH THE

  TRIAL COURT, PETITIONER'S HABEAS CORPUS APPLICATION, BROUGHT TO

  THIS COURT AFTER THE COURT OF APPEALS HAD DISMISSED HIS APPEAL,

  IS TREATED AS A PETITION FOR CERTIORARI, WHICH IS GRANTED, AND

  THE CASE IS REMANDED TO THE COURT OF APPEALS TO DETERMINE WHETHER

THE APPEAL HAD BEEN IMPROVIDENTLY DISMISSED. 

PER CURIAM. 

THE PETITIONER IS A DISBARRED ATTORNEY CONVICTED OF SECURITY FRAUD. 
AT HIS TRIAL THE COURT APPOINTED ADVISORY COUNSEL FOR HIM, FINDING THAT
HE QUALIFIED AS AN INDIGENT.  HE WAS CONVICTED.  HE LATER FILED WITH A
JUDGE OF THE COURT OF APPEALS A PRO SE REQUEST FOR EXTENSION OF TIME IN
WHICH TO SUBMIT HIS BRIEF ON APPEAL.  THIS WAS GRANTED.  BUT AN
ACCOMPANYING INQUIRY CONCERNING APPOINTMENT OF COUNSEL TO HANDLE THE
APPEAL WAS IGNORED.  HIS RIGHT TO HAVE APPOINTED COUNSEL HERE IS
CLEAR.  18 U.S.C. 3006AC); /1/  CF. DOUGLAS V. CALIFORNIA, 372 U.S. 353
(1963).  SUBSEQUENTLY THE PETITIONER REQUESTED ANOTHER EXTENSION OF
TIME AND RENEWED HIS REQUEST FOR APPOINTED COUNSEL.  THE GOVERNMENT
OPPOSED BOTH MOTIONS; THEY WERE DENIED AND THE APPEAL WAS DISMISSED. 
THE PETITIONER, STILL ACTION PRO SE, THEN BROUGHT THIS APPLICATION FOR
HABEAS CORPUS TO THIS COURT. 

IN HIS RESPONSE TO THE APPLICATION THE SOLICITOR GENERAL INFORMED
THE COURT THAT IT APPEARED THAT THE JUDGE BELOW WAS UNAWARE OF THE
PETITIONER'S INITIAL REQUEST FOR COUNSEL, AND MISTAKENLY BELIEVED THAT
THE PETITIONER HAD NEVER FILED A FINANCIAL AFFIDAVIT WITH THE TRIAL
COURT.  THE SOLICITOR GENERAL THEREFORE SUGGESTED THAT THIS COURT
SHOULD TREAT THE APPLICATION AS A PETITION FOR CERTIORARI, AND GRANT
CERTIORARI AND REMAND THE CASE TO THE COURT OF APPEALS FOR
DETERMINATION OF WHETHER THE PETITIONER'S APPEAL HAD BEEN IMPROVIDENTLY
DISMISSED. 

ON EXAMINATION OF THE RECORD, WE FOLLOW THE SUGGESTION OF THE
SOLICITOR GENERAL, GRANT CERTIORARI, VACATE THE JUDGMENT OF THE COURT
OF APPEALS, AND REMAND THE CASE TO THAT COURT. 

SO ORDERED. 

/1/  SECTION 3006AC) READS IN PART AS FOLLOWS:  "A PERSON FOR WHOM
COUNSEL IS APPOINTED SHALL BE REPRESENTED AT EVERY STAGE OF THE
PROCEEDINGS FROM HIS INITIAL APPEARANCE BEFORE THE UNITED STATES
MAGISTRATE OR THE COURT THROUGH APPEAL." 

MR. JUSTICE REHNQUIST DISSENTS. 
..END :







SATIACUM V. WASHINGTON 414 U.S. 1 


       ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           WASHINGTON

        NO. 72 - 552.  DECIDED OCTOBER 15, 1973; CERTIORARI
GRANTED;

           80 WASH.2D 492, 495 P.2D 1035, VACATED AND REMANDED. 


    STATE COURTS SHOULD HAVE DETERMINED WHERE PETITIONER'S ALLEGED

  OFFENSES OCCURRED WITH RESPECT TO BOUNDARIES OF PRESENT OR FORMER

  INDIAN RESERVATION, SINCE IF THEY OCCURRED OUTSIDE THOSE

  BOUNDARIES THE STATE SUPREME COURT UNNECESSARILY REACHED A

  FEDERAL QUESTION IN DECIDING THAT THE RESERVATION AS SUCH HAD

  CEASED TO EXIST. 

PER CURIAM. 

IT APPEARING THAT PETITIONER MIGHT HAVE BEEN FISHING AT A LOCATION
OUTSIDE THE BOUNDARIES OF WHAT IS, OR WAS, THE PUYALLUP INDIAN
RESERVATION WHEN THE ACTS WITH WHICH HE IS CHARGED WERE COMMITTED, AND,
IF THIS WERE SO, THAT THE SUPREME COURT OF WASHINGTON THEN
UNNECESSARILY ADDRESSED, AND DETERMINED, THE FEDERAL QUESTION WHETHER
THE PUYALLUP RESERVATION "HAS CEASED TO EXIST," THE PETITION FOR A WRIT
OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE SUPREME COURT OF
WASHINGTON IS VACATED, AND THE CASE IS REMANDED TO THAT COURT FOR
RESOLUTION BY THE STATE COURTS OF THE FACTUAL ISSUE WHETHER THE ALLEGED
OFFENSES TOOK PLACE OUTSIDE THE BOUNDARIES OF WHAT IS, OR WAS, THE
RESERVATION. 
..END :














PLUMMER V. CITY OF COLUMBUS 414 U.S. 2 


       ON APPEAL FROM THE COURT OF APPEALS OF OHIO FOR FRANKLIN

           COUNTY 

NO. 72 - 6897.  DECIDED OCTOBER 15, 1973; REVERSED. 


    THE OHIO SUPREME COURT ERRED IN FINDING NO CONSTITUTIONAL

  INFIRMITY IN THE LOWER COURT'S HOLDING THAT A CITY ORDINANCE

  PUNISHING ABUSE OF ANOTHER BY USING MENACING, INSULTING,

  SLANDEROUS, OR PROFANE LANGUAGE MIGHT CONSTITUTIONALLY REACH

  APPELLANT'S USE OF "FIGHTING WORDS," WHERE THE ORDINANCE, AS

  CONSTRUED BY THE OHIO COURTS, IS FACIALLY UNCONSTITUTIONAL

  BECAUSE IT MAY BE APPLIED NOT ONLY TO PUNISH UNPROTECTED BUT ALSO

  PROTECTED SPEECH.  EVEN THOUGH A LAW MAY BE VALID AS APPLIED TO

  THE CONDUCT CHARGED AGAINST A PARTICULAR DEFENDANT, HE MAY RAISE

  ITS VAGUENESS OR UNCONSTITUTIONAL OVERBREADTH AS APPLIED TO

  OTHERS, AND, IF THE LAW IS FOUND DEFICIENT IN ONE OF THESE

RESPECTS, IT MAY NOT BE APPLIED TO HIM EITHER, ABSENT A

SATISFACTORY LIMITING CONSTRUCTION. 

PER CURIAM. 

THE COURT OF APPEALS OF FRANKLIN COUNTY, OHIO, IN AN UNREPORTED
OPINION, AFFIRMED APPELLANT'S CONVICTION OF VIOLATING COLUMBUS CITY
CODE 2327.03, WHICH PROVIDES:  "NO PERSON SHALL ABUSE ANOTHER BY USING
MENACING, INSULTING, SLANDEROUS, OR PROFANE LANGUAGE."  THE OHIO
SUPREME COURT, IN AN UNREPORTED ORDER, SUA SPONTE DISMISSED APPELLANT'S
APPEAL TO THAT COURT "FOR THE REASON THAT NO SUBSTANTIAL CONSTITUTIONAL
QUESTION EXISTS HEREIN."  WE GRANT LEAVE TO PROCEED IN FORMA PAUPERIS
AND REVERSE. 

ON DECEMBER 11, 1972, WE HELD THAT GOODING V. WILSON, 405 U.S. 518
(1972), REQUIRED THE REVERSAL OF A PREVIOUS ACTION OF THE OHIO SUPREME
COURT THAT DISMISSED AN APPEAL FROM A CONVICTION UNDER 2327.03.  CASON
V. CITY OF COLUMBUS, 409 U.S. 1053.  SECTION 2327.03 PUNISHES ONLY
SPOKEN WORDS AND, AS CONSTRUED BY THE OHIO COURTS, IS FACIALLY
UNCONSTITUTIONAL BECAUSE NOT LIMITED IN APPLICATION "TO PUNISH ONLY
UNPROTECTED SPEECH" BUT IS "SUSCEPTIBLE OF APPLICATION TO PROTECTED
EXPRESSION."  GOODING V. WILSON, SUPRA, AT 522.  IN THAT CIRCUMSTANCE,
THE OHIO SUPREME COURT ERRED WHEN IT FOUND NO CONSTITUTIONAL INFIRMITY
IN THE HOLDING OF THE COURT OF APPEALS OF FRANKLIN COUNTY THAT THE
ORDINANCE MIGHT CONSTITUTIONALLY REACH APPELLANT'S CONDUCT BECAUSE "THE
WORDS AS USED BY THE (APPELLANT) ARE IN THE NATURE OF 'FIGUTING WORDS'
AND THEREBY FALL WITHIN THAT LIMIT OF CONDUCT PROSCRIBED BY THE
ORDINANCE . . . ."  FOR "'(ALTHOUGH (THE ORDINANCE) MAY BE NEITHER
VAGUE, OVERBROAD, NOR OTHERWISE INVALID AS APPLIED TO THE CONDUCT
CHARGED AGAINST A PARTICULAR DEFENDANT, HE IS PERMITTED TO RAISE ITS
VAGUENESS OR UNCONSTITUTIONAL OVERBREADTH AS APPLIED TO OTHERS.  AND IF
THE LAW IS FOUND DEFICIENT IN ONE OF THESE RESPECTS, IT MAY NOT BE
APPLIED TO HIM EITHER, UNTIL AND UNLESS A SATISFACTORY LIMITING
CONSTRUCTION IS PLACED ON THE (ORDINANCE).  THE (ORDINANCE), IN EFFECT,
IS STRICKEN DOWN ON ITS FACE.  . . .'"  ID., AT 521. 

     REVERSED. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACKMUN DISSENT FOR THE REASONS
EXPRESSED IN MR. JUSTICE BLACKMUN'S DISSENTING OPINION IN GOODING V.
WILSON, 405 U.S. 518, 534 (1972), AND IN THE DISSENTING STATEMENT IN
CASON V. CITY OF COLUMBUS, 409 U.S. 1053 (1972). 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE REHNQUIST CONCURS,
DISSENTING. 

APPELLANT IS A COLUMBUS CAB DRIVER.  HE HAD A FEMALE FARE IN HIS CAB
WHO HAD REQUESTED TO BE TAKEN TO A CERTAIN ADDRESS.  WHEN HE PASSED
THIS ADDRESS, THE FARE COMPLAINED AND--ACCORDING TO THE STATEMENT OF
THE TRIAL COURT--THE CAB DRIVER'S RESPONSE WAS "A SERIES OF ABSOLUTELY
VULGAR, SUGGESTIVE AND ABHORRENT, SEXUALLY-ORIENTED STATEMENTS." 

I WOULD SUSTAIN APPELLANT'S CONVICTION FOR THE REASONS STATED IN MY
DISSENTING OPINION IN ROSENFELD V. NEW JERSEY, 408 U.S. 901, 906
(1972).  AS STATED THEREIN: 

"(A) VERBAL ASSAULT ON AN UNWILLING AUDIENCE (OR AN INDIVIDUAL) MAY
BE SO GROSSLY OFFENSIVE AND EMOTIONALLY DISTURBING AS TO BE THE PROPER
SUBJECT OF CRIMINAL PROSCRIPTION, WHETHER UNDER A STATUTE DENOMINATING
IT DISORDERLY CONDUCT, OR, MORE ACCURATELY, A PUBLIC NUISANCE., 

THE COLUMBUS CITY CODE WAS CERTAINLY SUFFICIENTLY EXPLICIT TO INFORM
APPELLANT THAT HIS VERBAL ASSAULT ON A FEMALE PASSENGER IN HIS CAB WAS
"MENACING AND INSULTING."  AS A WRONG OF THIS CHARACTER DOES NOT FALL
WITHIN THE PROTECTION OF THE FIRST AMENDMENT, THE OVERBREADTH DOCTRINE
IS NOT APPLICABLE.  SEE MODEL PENAL CODE, 250.2(1)(A) AND (B) (PROPOSED
OFFICIAL DRAFT 1962); SEE ALSO WILLIAMS V. DISTRICT OF COLUMBIA, 136
U.S. APP. D.C. 56, 64, 419 F.2D 638, 646 (1969). 
..END :

















NORWOOD V. HARRISON 413 U.S. 455 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF MISSISSIPPI 

     NO. 72 - 77.  ARGUED FEBRUARY 20 - 21, 1973--DECIDED JUNE 25,

  1973; 340 F.SUPP.  1003, VACATED AND REMANDED. 


    A THREE-JUDGE DISTRICT COURT SUSTAINED THE VALIDITY OF A

  MISSISSIPPI STATUTORY PROGRAM, BEGUN IN 1940, UNDER WHICH

  TEXTBOOKS ARE PURCHASED BY THE STATE AND LENT TO STUDENTS IN BOTH

  PUBLIC AND PRIVATE SCHOOLS, WITHOUT REFERENCE TO WHETHER ANY

  PARTICIPATING PRIVATE SCHOOL HAS RACIALLY DISCRIMINATORY

  POLICIES.  THE NUMBER OF PRIVATE SECULAR SCHOOLS IN MISSISSIPPI,

  WITH A VIRTUALLY ALL-WHITE STUDENT POPULATION, HAS GREATLY

  INCREASED IN RECENT YEARS.  HELD: 

     1.  PRIVATE SCHOOLS HAVE THE RIGHT TO EXIST AND TO OPERATE,

  PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, BUT THE STATE IS NOT

  REQUIRED BY THE EQUAL PROTECTION CLAUSE TO PROVIDE ASSISTANCE TO

  PRIVATE SCHOOLS EQUIVALENT TO THAT IT PROVIDES TO PUBLIC SCHOOLS

  WITHOUT REGARD TO WHETHER THE PRIVATE SCHOOLS DISCRIMINATE ON

  RACIAL GROUNDS.  PP. 461 - 463. 

     2.  FREE TEXTBOOKS, LIKE TUITION GRANTS DIRECTED TO STUDENTS
IN

  PRIVATE SCHOOLS, ARE A FORM OF TANGIBLE FINANCIAL ASSISTANCE

  BENEFITING THE SCHOOLS THEMSELVES, AND THE STATE'S CONSTITUTIONAL

  OBLIGATION REQUIRES IT TO AVOID NOT ONLY OPERATING THE OLD DUAL

  SYSTEM OF RACIALLY SEGREGATED SCHOOLS BUT ALSO PROVIDING TANGIBLE

  AID TO SCHOOLS THAT PRACTICE RACIAL OR OTHER INVIDIOUS

  DISCRIMINATION.  PP. 463 - 468. 

     3. ASSISTANCE CAREFULLY LIMITED SO AS TO AVOID THE

  PROHIBITIONS OF THE "EFFECT" AND "ENTANGLEMENT" TESTS MAY BE

  CONFINED TO THE SECULAR FUNCTIONS OF SECTARIAN SCHOOLS AND DOES

  NOT SUBSTANTIALLY PROMOTE THE RELIGIOUS MISSION OF THOSE SCHOOLS

  IN VIOLATION OF THE ESTABLISHMENT CLAUSE.  IN THIS CASE, HOWEVER,

  THE LEGITIMATE EDUCATIONAL FUNCTION OF PRIVATE DISCRIMINATORY

  SCHOOLS CANNOT BE ISOLATED FROM THEIR ALLEGED DISCRIMINATORY

  PRACTICES; DISCRIMINATORY TREATMENT EXERTS A PERVASIVE INFLUENCE

  ON THE ENTIRE EDUCATIONAL PROCESS.  BROWN V. BOARD OF EDUCATION,

  347 U.S. 483.  THE ESTABLISHMENT CLAUSE PERMITS A GREATER DEGREE

  OF STATE ASSISTANCE TO SECTARIAN SCHOOLS THAN MAY BE GIVEN TO

  PRIVATE SCHOOLS WHICH ENGAGE IN DISCRIMINATORY PRACTICES. 

  EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, AND BOARD OF EDUCATION

  V. ALLEN, 392 U.S. 236, DISTINGUISHED.  PP. 468 - 470. 

     4.  PROPER INJUNCTIVE RELIEF CAN BE GRANTED WITHOUT IMPLYING

  THAT ALL THE PRIVATE SCHOOLS ALLEGED TO BE RECEIVING TEXTBOOK AID

  HAVE RESTRICTIVE ADMISSION POLICIES. 

[[HC456'(ORIGINAL DOCUMENT PAGE 456)'

  THE DISTRICT COURT CAN DIRECT APPELLEES TO SUBMIT FOR APPROVAL A
CERTIFICATION PROCEDURE

  WHEREBY SCHOOLS MAY APPLY FOR TEXTBOOKS ON BEHALF OF PUPILS,
AFFIRMATIVELY DECLARING ADMISSION

  POLICIES AND PRACTICES, AND STATING THE NUMBER OF THEIR RACIALLY
AND RELIGIOUSLY IDENTIFIABLE

  MINORITY STUDENTS, AND OTHER RELEVANT DATA.  CERTIFICATION OF
ELIGIBILITY WILL BE SUBJECT TO

  JUDICIAL REVIEW.  PP. 470 - 471. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
WHITE, MARSHALL, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS
AND BRENNAN, JJ., CONCURRED IN THE RESULT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

A THREE-JUDGE DISTRICT COURT SUSTAINED THE VALIDITY OF A MISSISSIPPI
STATUTORY PROGRAM UNDER WHICH TEXTBOOKS ARE PURCHASED BY THE STATE AND
LENT TO STUDENTS IN BOTH PUBLIC AND PRIVATE SCHOOLS, WITHOUT REFERENCE
TO WHETHER ANY PARTICIPATING PRIVATE SCHOOL HAS RACIALLY DISCRIMINATORY
POLICIES.  340 F.SUPP.  1003 (ND MISS.  1972).  WE NOTED PROBABLE
JURISDICTION, 409 U.S. 839. 

        I 

APPELLANTS, WHO ARE PARENTS OF FOUR SCHOOL CHILDREN IN TUNICA
COUNTY, MISSISSIPPI, FILED A CLASS ACTION ON BEHALF OF STUDENTS
THROUGHOUT MISSISSIPPI TO ENJOIN IN PART THE ENFORCEMENT OF THE
MISSISSIPPI TEXTBOOK LENDING PROGRAM. 

[[HC457'(ORIGINAL DOCUMENT PAGE 457)'  THE COMPLAINT ALLEGED THAT
CERTAIN OF THE PRIVATE SCHOOLS EXCLUDED STUDENTS ON THE BASIS OF RACE
AND THAT, BY SUPPLYING TEXTBOOKS TO STUDENTS ATTENDING SUCH PRIVATE
SCHOOLS, APPELLEES, ACTING FOR THE STATE, HAVE PROVIDED DIRECT STATE
AID TO RACIALLY SEGREGATED EDUCATION.  IT WAS ALSO ALLEGED THAT THE
TEXTBOOK AID PROGRAM THEREBY IMPEDED THE PROCESS OF FULLY DESEGRAGATING
PUBLIC SCHOOLS, IN VIOLATION OF APPELLANTS' CONSTITUTIONAL RIGHTS. 

PRIVATE SCHOOLS IN MISSISSIPPI HAVE EXPERIENCED A MARKED GROWTH IN
RECENT YEARS.  AS RECENTLY AS THE 1963 - 1964 SCHOOL YEAR, THERE WERE
ONLY 17 PRIVATE SCHOOLS OTHER THAN CATHOLIC SCHOOLS; THE TOTAL
ENROLLMENT WAS 2,362 STUDENTS.  IN THESE NONPUBLIC SCHOOLS 916 STUDENTS
WERE NEGRO, AND 192 OF THESE WERE ENROLLED IN SPECIAL SCHOOLS FOR
RETARDED, ORPHANED, OR ABANDONED CHILDREN.  /1/  BY SEPTEMBER 1970, THE
NUMBER OF PRIVATE NON-CATHOLIC SCHOOLS HAD INCREASED TO 155 WITH A
STUDENT POPULATION ESTIMATED AT 42,000 VIRTUALLY ALL WHITE.  APPELLEES
DO NOT CHALLENGE THE STATEMENT, WHICH IS FULLY DOCUMENTED IN
APPELLANTS' BRIEF, THAT "THE CREATION AND ENLARGEMENT OF THESE
(PRIVATE) ACADEMIES OCCURRED SIMULTANEOUSLY WITH MAJOR EVENTS IN THE
DESEGRAGATION OF PUBLIC SCHOOLS . . ."  /2/ 

THIS CASE DOES NOT RAISE ANY QUESTION AS TO THE RIGHT OF CITIZENS TO
MAINTAIN PRIVATE SCHOOLS WITH ADMISSION LIMITED TO STUDENTS OF
PARTICULAR NATIONAL ORIGINS, RACE, OR RELIGION OR OF THE AUTHORITY OF A
STATE TO ALLOW SUCH SCHOOLS. 

[[HC458'(ORIGINAL DOCUMENT PAGE 458)'  SEE PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510 (1925).  THE NARROW ISSUE BEFORE US, RATHER, IS A
PARTICULAR FORM OF TANGIBLE ASSISTANCE THE STATE PROVIDES TO STUDENTS
IN PRIVATE SCHOOLS IN COMMON WITH ALL OTHER STUDENTS BY LENDING
TEXTBOOKS UNDER THE STATE'S 33-YEAR-OLD PROGRAM FOR PROVIDING FREE
TEXTBOOKS TO ALL THE CHILDREN OF THE STATE.  THE PROGRAM DATES BACK TO
A 1940 APPEAL FOR IMPROVED EDUCATIONAL FACILITIES BY THE GOVERNOR OF
MISSISSIPPI TO THE STATE LEGISLATURE.  THE LEGISLATURE THEN ESTABLISHED
A STATE TEXTBOOK PURCHASING BOARD AND AUTHORIZED IT TO SELECT,
PURCHASE, AND DISTRIBUTE FREE TEXTBOOKS FOR ALL SCHOOL CHILDREN THROUGH
THE FIRST EIGHT GRADES.  /3/  IN 1942, THE PROGRAM WAS EXTENDED TO
COVER ALL HIGH SCHOOL STUDENTS, AND, AS CODIFIED, THE STATUTORY
AUTHORIZATION REMAINS SUBSTANTIALLY UNCHANGED.  MISS.  CODE ANN. ^ 6634
ET SEQ. (1942). 

ADMINISTRATION OF THE TEXTBOOK PROGRAM IS VESTED IN THE MISSISSIPPI
TEXTBOOK PURCHASING BOARD, WHOSE MEMBERS INCLUDE THE GOVERNOR, THE
STATE SUPERINTENDENT OF EDUCATION, AND THREE EXPERIENCED EDUCATORS
APPOINTED BY THE GOVERNOR FOR FOUR-YEAR TERMS.  ^^ 6634, 6641.  THE
BOARD EMPLOYS A FULL-TIME ADMINISTRATOR AS ITS EXECUTIVE SECRETARY. 
TEXTBOOKS MAY BE PURCHASED ONLY "FOR USE IN THOSE COURSES SET UP IN THE
STATE COURSE OF STUDY ADOPTED BY THE STATE BOARD OF EDUCATION, OR
COURSES ESTABLISHED BY SPECIAL ACTS OF THE LEGISLATURE."  ID., AT SEC.
6646.  FOR EACH COURSE OF STUDY, THERE IS A "RATING COMMITTEE" COMPOSED
OF APPOINTED MEMBERS, ^ 6641 (1) (D), AND ONLY THOSE BOOKS APPROVED BY
THE RELEVANT RATING COMMITTEE MAY BE PURCHASED FROM PUBLISHERS AT A
PRICE WHICH CAN "NOT BE HIGHER THAN THE LOWEST PRICES AT WHICH THE SAME
BOOKS ARE BEING SOLD ANYWHERE IN THE UNITED STATES."  ^ 6646 (1). 

THE BOOKS ARE KEPT AT A CENTRAL BOOK REPOSITORY IN JACKSON. 

 HC459'(ORIGINAL DOCUMENT PAGE 459)'  ID., AT SEC. 6641 (1) (F). 
APPELLEES SEND TO EACH SCHOOL DISTRICT, AND, IN RECENT YEARS, TO EACH
PRIVATE SCHOOL  /4/  REQUISITION FORMS LISTING APPROVED TEXTBOOKS
AVAILABLE FROM THE STATE FOR FREE DISTRIBUTION TO STUDENTS.  THE LOCAL
SCHOOL DISTRICT OR THE PRIVATE SCHOOL SENDS A REQUISITION FORM TO THE
PURCHASING BOARD FOR APPROVAL BY THE EXECUTIVE SECRETARY, WHO IN TURN
FORWARDS THE APPROVED FORM TO THE JACKSON BOOK REPOSITORY WHERE THE
ORDER IS ROUTINELY FILLED AND THE REQUESTED BOOKS SHIPPED DIRECTLY TO
THE SCHOOL DISTRICT OR THE PRIVATE SCHOOL. 

THE DISTRICT COURT FOUND THAT "34,000 STUDENTS ARE PRESENTLY
RECEIVING STATE-OWNED TEXTBOOKS WHILE ATTENDING 107 ALL-WHITE,
NONSECTARIAN PRIVATE SCHOOLS WHICH HAVE BEEN FORMED THROUGHOUT THE
STATE SINCE THE INCEPTION OF PUBLIC SCHOOL DESEGREGATION." 

[[HC460'(ORIGINAL DOCUMENT PAGE 460)'  340 F.SUPP., AT 1011.  /5/
DURING THE 1970 - 1971 SCHOOL YEAR, THESE SCHOOLS HELD 173,424 BOOKS,
FOR WHICH MISSISSIPPI PAID $490,239.  THE ANNUAL EXPENDITURE FOR
REPLACEMENTS OR NEW TEXTS IS APPROXIMATELY $6 PER PUPIL, OR A TOTAL OF
APPROXIMATELY $207,000 FOR THE STUDENTS ENROLLED IN THE PARTICIPATING
PRIVATE SEGREGATED ACADEMIES, EXCLUSIVE OF MAILING COSTS WHICH ARE
BORNE BY THE STATE AS WELL. 

IN DISMISSING THE COMPLAINT THE DISTRICT COURT STRESSED, FIRST, THAT
THE STATUTORY SCHEME WAS NOT MOTIVATED BY A DESIRE TO FURTHER RACIAL
SEGREGATION IN THE PUBLIC SCHOOLS, HAVING BEEN ENACTED FIRST IN 1940,
LONG BEFORE THIS COURT'S DECISION IN BROWN V. BOARD OF EDUCATION, 347
U.S. 483 (1954), AND CONSEQUENTLY, LONG BEFORE THERE WAS ANY OCCASION
TO HAVE A POLICY OR REASON TO FOSTER THE DEVELOPMENT OF RACIALLY
SEGREGATED PRIVATE ACADEMIES.  SECOND, THE DISTRICT COURT TOOK NOTE
THAT PROVIDING TEXTBOOKS TO PRIVATE SECTARIAN SCHOOLS HAD BEEN APPROVED
BY THIS COURT IN BOARD OF EDUCATION V. ALLEN, 392 U.S. 236 (1968), AND
THAT "(THE ESSENTIAL INQUIRY, THEREFORE, IS WHEATHER WE SHOULD APPLY A
MORE STRINGENT STANDARD FOR DETERMINING WHAT CONSTITUTES STATE AID TO A
SCHOOL IN THE CONTEXT OF THE FOURTEENTH AMENDMENT'S BAN AGAINST DENIAL
OF THE EQUAL PROTECTION OF THE LAW THAN THE SUPREME COURT HAS APPLIED
IN FIRST AMENDMENT CASES."  340 F.SUPP., AT 1011.  THE DISTRICT COURT
HELD NO MORE STRINGENT STANDARD SHOULD APPLY ON THE FACTS OF THIS CASE,
SINCE, AS IN ALLEN, THE BOOKS WERE PROVIDED TO THE STUDENTS AND NOT TO
THE SCHOOLS.  FINALLY, THE DISTRICT COURT CONCLUDED THAT TEXTBOOK LOANS
DID NOT INTERFERE WITH OR IMPEDE THE STATE'S ACKNOWLEDGED DUTY TO
ESTABLISH A UNITARY SCHOOL SYSTEM UNDER THIS COURT'S HOLDING IN GREEN
V. COUNTY SCHOOL BOARD, 391 U.S. 430, 437 (1968), SINCE 

"(DEPRIVING ANY SEGMENT OF SCHOOL CHILDREN OF STATE-OWNED TEXTBOOKS
AT THIS POINT IN TIME IS NOT NECESSARY FOR THE ESTABLISHMENT OR
MAINTENANCE OF STATE-WIDE UNITARY SCHOOLS.  INDEED, THE PUBLIC SCHOOLS
WHICH PLAINTIFFS ACKNOWLEDGE WERE FULLY ESTABLISHED AS UNITARY SCHOOLS
THROUGHOUT THE STATE NO LATER THAN 1970 - 71, CONTINUE TO ATTRACT 90%
OF THE STATE'S EDUCABLE CHILDREN.  THERE IS NO SHOWING THAT ANY CHILD
ENROLLED IN PRIVATE SCHOOL, IF DEPRIVED OF FREE TEXTBOOKS, WOULD
WITHDRAW FROM PRIVATE SCHOOL AND SUBSEQUENTLY ENROLL IN THE PUBLIC
SCHOOLS."  340 F.SUPP., AT 1013. 

        II 

IN PIERCE V. SOCIETY OF SISTERM, 268 U.S. 510 (1925), THE COURT HELD
THAT A STATE'S ROLE IN THE EDUCATION OF ITS CITIZENS MUST YEILD TO THE
RIGHT OF PARENTS TO PROVIDE AN EQUIVALENT EDUCATION FOR THEIR CHILDREN
IN A PRIVATELY OPERATED SCHOOL OF THE PARENTS'  CHOICE.  IN THE 1971
TERM WE REAFFIRMED THE VITALITY OF PIERCE, WISCONSIN V. YODER, 406 U.S.
205, 213 (1972), AND THERE HAS BEEN NO SUGGESTION IN THE PRESENT CASE
THAT WE ALTER OUR VIEW OF PIERCE.  YET THE COURT'S HOLDING IN PIERCE IS
NOT WITHOUT LIMITS.  AS MR. JUSTICE WHITE OBSERVED IN HIS CONCURRING
OPINION IN YODER, PIERCE "HELD SIMPLY THAT WHILE A STATE MAP POSIT
(EDUCATIONAL) STANDARDS, IT MAY NOT PRE-EMPT THE EDUCATIONAL PROCESS BY
REQUIRING CHILDREN TO ATTEND PUBLIC SCHOOLS."  ID., AT 239. 

APPELLEES FAIL TO RECOGNIZE THE LIMITED SCOPE OF PIERCE WHEN THEY
URGE THAT THE RIGHT OF PARENTS TO SEND THEIR CHILDREN TO PRIVATE
SCHOOLS UNDER THAT HOLDING IS AT STAKE IN THIS CASE.  THE SUGGESTION IS
MADE THAT THE RIGHTS OF PARENTS UNDER PIERCE WOULD BE UNDERMINED WERE
THE LENDING OF FREE TEXTBOOKS DENIED TO THOSE WHO ATTEND PRIVATE
SCHOOLS -- IN OTHER WORDS, THAT SCHOOL CHILDREN WHO ATTEND PRIVATE
SCHOOLS MIGHT BE DEPRIVED OF THE EQUAL PROTECTION OF THE LAWS WERE THEY
INVIDIOUSLY CLASSFIED UNDER THE STATE TEXTBOOK LOAN PROGRAM SIMPLY
BECAUSE THEIR PARENTS HAD EXERCISED THE CONSTITUTIONALLY PROTECTED
CHOICE TO SEND THE CHILDREN TO PRIVATE SCHOOLS. 

[[HC462'(ORIGINAL DOCUMENT PAGE 462)' 

WE DO NOT SEE THE ISSUE IN APPELLEES' TERMS.  IN PIERCE THE COURT
AFFIRMED THE RIGHT OF PRIVATE SCHOOLS TO EXIST AND TO OPERATE; IT SAID
NOTHING OF ANY SUPPOSED RIGHT OF PRIVATE OR PAROCHIAL SCHOOLS TO SHARE
WITH PUBLIC SCHOOLS IN STATE LARGESSE, ON AN EQUAL BASIS OR OTHERWISE. 
IT HAS NEVER BEEN HELD THAT IF PRIVATE SCHOOLS ARE NOT GIVEN SOME SHARE
OF PUBLIC FUNDS ALLOCATED FOR EDUCATION THAT SUCH SCHOOLS ARE ISOLATED
INTO A CLASSIFICATION VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.  IT IS
ONE THING TO SAY THAT A STATE MAY NOT PROHIBIT THE MAINTENANCE OF
PRIVATE SCHOOLS AND QUITE ANOTHER TO SAY THAT SUCH SCHOOLS MUST, AS A
MATTER OF EQUAL PROTECTION, RECEIVE STATE AID. 

THE APPELLEES INTIMATE THAT THE STATE MUST PROVIDE ASSISTANCE TO
PRIVATE SCHOOLS EQUIVALENT TO THAT IT PROVIDES TO PUBLIC SCHOOLS
WITHOUT REGARD TO WHETHER THE PRIVATE SCHOOLS DISCRIMINATE ON RACIAL
GROUNDS.  CLEARLY, THE STATE NEED NOT.  EVEN AS TO CHURCH-SPONSORED
SCHOOLS WHOSE POLICIES ARE NONDISCRIMINATORY, ANY ABSOLUTE RIGHT TO
EQUAL AID WAS NEGATED, AT LEAST BY IMPLICATION, IN LEMON V. KURTZMAN,
403 U.S. 602 (1971).  THE RELIGION CLAUSES OF THE FIRST AMENDMENT
STRICTLY CONFINE STATE AID TO SECTARIAN EDUCATION.  EVEN ASSUMING,
THEREFORE, THAT THE EQUAL PROTECTION CLAUSE MIGHT REQUIRE STATE AID TO
BE GRANTED TO PRIVATE NONSECTARIAN SCHOOLS IN SOME CIRCUMSTANCES --
HEALTH CARE OR TEXTBOOKS, FOR EXAMPLE -- A STATE COULD RATIONALLY
CONCLUDE AS A MATTER OF LEGISLATIVE POLICY THAT CONSTITUTIONAL
NEUTRALITY AS TO SECTARIAN SCHOOLS MIGHT BEST BE ACHIEVED BY
WITHHOLDING ALL STATE ASSISTANCE.  SEE SAN ANTONIO INDEPENDENT SCHOOL
DISTRICT V. RODRIGUEZ, 411 U.S. 1 (1973).  IN THE SAME WAY, A STATE'S
SPECIAL INTEREST IN ELEVATING THE QUALITY OF EDUCATION IN BOTH PUBLIC
AND PRIVATE SCHOOLS DOES NOT MEAN THAT THE STATE MUST GRANT AID TO
PRIVATE SCHOOLS WITHOUT REGARD TO CONSTITUTIONALLY MANDATED STANDARDS
FORBIDDING STATE-SUPPORTED DISCRIMINATION. 

[[HC463'(ORIGINAL DOCUMENT PAGE 463)'  THAT THE CONSTITUTION MAY
COMPEL TOLERATION OF PRIVATE DISCRIMINATION IN SOME CIRCUMSTANCES DOES
NOT MEAN THAT IT REQUIRES STATE SUPPORT FOR SUCH DISCRIMINATION. 

        III 

THE DISTRICT COURT'S HOLDING THEREFORE RAISES THE QUESTION WHETHER
AND ON WHAT TERMS A STATE MAY -- AS A MATTER OF LEGISLATIVE POLICY --
PROVIDE TANGIBLE ASSISTANCE TO STUDENTS ATTENDING PRIVATE SCHOOLS. 
APPELLANTS ASSERT, NOT ONLY THAT THE PRIVATE SCHOOLS ARE IN FACT
RACIALLY DISCRIMINATORY, BUT ALSO THAT AID TO THEM IN ANY FORM IS IN
DEROGATION OF THE STATE'S OBLIGATION NOT TO SUPPORT DISCRIMINATION IN
EDUCATION. 

THIS COURT HAS CONSISTENTLY AFFIRMED DECISIONS ENJOINING STATE
TUITION GRANTS TO STUDENTS ATTENDING RACIALLY DISCRIMINATORY PRIVATE
SCHOOLS.  /6/  A TEXTBOOK LENDING PROGRAM IS NOT LEGALLY
DISTINGUISHABLE FROM THE FORMS OF STATE ASSISTANCE FORECLOSED BY THE
PRIOR CASES.  FREE TEXTBOOKS, LIKE TUITION GRANTS DIRECTED TO PRIVATE
SCHOOL STUDENTS, ARE A FORM OF FINANCIAL ASSISTANCE INURING TO THE
BENEFIT OF THE PRIVATE SCHOOLS THEMSELVES.  /7/ 

[[HC464'(ORIGINAL DOCUMENT PAGE 464)'  AN INESCAPABLE EDUCATIONAL
COST FOR STUDENTS IN BOTH PUBLIC AND PRIVATE SCHOOLS IS THE EXPENSE OF
PROVIDING ALL NECESSARY LEARNING MATERIALS.  WHEN, AS HERE, THAT
NECESSARY EXPENSE IS BORNE BY THE STATE, THE ECONOMIC CONSEQUENCE IS TO
GIVE AID TO THE ENTERPRISE; IF THE SCHOOL ENGAGES IN DISCRIMINATORY
PRACTICES THE STATE BY TANGIBLE AID IN THE FORM OF TEXTBOOKS THEREBY
GIVES SUPPORT TO SUCH DISCRIMINATION. 

[[HC465'(ORIGINAL DOCUMENT PAGE 465)'  RACIAL DISCRIMINATION IN
STATE-OPERATED SCHOOLS IS BARRED BY THE CONSTITUTION AND "(IT IS ALSO
AXIOMATIC THAT A STATE MAY NOT INDUCE, ENCOURAGE OR PROMOTE PRIVATE
PERSONS TO ACCOMPLISH WHAT IT IS CONSTITUTIONALLY FORBIDDED TO
ACCOMPLISH."  LEE V. MACON COUNTY BOARD OF EDUCATION, 267 F.SUPP.  458,
475 - 476 (MD ALA. 1967). 

WE DO NOT SUGGEST THAT A STATE VIOLATES ITS CONSTITUTIONAL DUTY
MERELY BECAUSE IT HAS PROVIDED ANY FORM OF STATE SERVICE THAT BENEFITS
PRIVATE SCHOOLS SAID TO BE RACIALLY DISCRIMINATORY.  TEXTBOOKS ARE A
BASIC EDUCATIONAL TOOL AND, LIKE TUITION GRANTS, THEY ARE PROVIDED ONLY
IN CONNECTION WITH SCHOOLS; THEY ARE TO BE DISTINGUISHED FROM
GENERALIZED SERVICES GOVERNMENT MIGHT PROVIDE TO SCHOOLS IN COMMON WITH
OTHERS.  MOREOVER, THE TEXTBOOKS PROVIDED TO PRIVATE SCHOOL STUDENTS BY
THE STATE IN THIS CASE ARE A FORM OF ASSISTANCE READILY AVAILABLE FROM
SOURCES ENTIRELY INDEPENDENT OF THE STATE -- UNLIKE, FOR EXAMPLE, "SUCH
NECESSITIES OF LIFE AS ELECTRICITY, WATER, AND POLICE AND FIRE
PROTECTION."  MOSSE LODGE NO. 107 V. IRVIS, 407 U.S. 163, 173 (1972). 
THE STATE HAS NEITHER AN ABSOLUTE NOR OPERATING MONOPOLY ON THE
PROCUREMENT OF SCHOOL TEXTBOOKS; ANYONE CAN PURCHASE THEM ON THE OPEN
MARKET.     THE DISTRICT COURT LAID GREAT STRESS ON THE ABSENCE OF
SHOWING BY APPELLANTS THAT "ANY CHILD ENROLLED IN PRIVATE SCHOOL, IF
DEPRIVED OF FREE TEXTBOOKS, WOULD WITHDRAW FROM PRIVATE SCHOOL AND
SUBSEQUENTLY ENROLL IN THE PUBLIC SCHOOLS."  340 F.SUPP., AT 1013.  WE
CAN ACCEPT THIS FACTUAL ASSERTION; WE CANNOT AND DO NOT KNOW, ON THIS
RECORD AT LEAST, WHETHER STATE TEXTBOOK ASSISTANCE IS THE DETERMINATIVE
FACTOR IN THE ENROLLMENT OF ANY STUDENTS IN ANY OF THE PRIVATE SCHOOLS
IN MISSISSIPPI.  WE DO NOT AGREE WITH THE DISTRICT COURT IN ITS
ANALYSIS OF THE LEGAL CONSEQUENCES OF THIS UNCERTAINTY, FOR THE
CONSTITUTION DOES NOT PERMIT THE STATE TO AID DISCRIMINATION EVEN WHEN
THERE IS NO PRECISE CAUSAL RELATIONSHIP BETWEEN STATE FINANCIAL AID TO
A PRIVATE SCHOOL AND THE CONTINUED WELL-BEING OF THAT SCHOOL. 

[[HC466'(ORIGINAL DOCUMENT PAGE 466)'  A STATE MAY NOT GRANT THE
TYPE OF TANGIBLE FINANCIAL AID HERE INVOLVED IF THAT AID HAS A
SIGNIFICANT TENDENCY TO FACILITATE, REINFORCE, AND SUPPORT PRIVATE
DISCRIMINATION.  "(DECISIONS ON THE CONSTITUTIONALITY OF STATE
INVOLVEMENT IN PRIVATE DISCRIMINATION DO NOT TURN ON WHETHER THE STATE
AID ADDS UP TO 51 PERCENT OR ADDS UP TO ONLY 49 PERCENT OF THE SUPPORT
OF THE SEGREGATED INSTITUTION."  POINDEXTER V. LOUISIANA FINANCIAL
ASSISTANCE COMM'N, 275 F.SUPP.  833, 854 (ED LA. 1967).  /8/ 

THE RECURRING THEME OF APPELLEES' ARGUMENT IS A SYMPATHETIC ONE --
THAT THE STATE'S TEXTBOOK LOAN PROGRAM IS EXTENDED TO STUDENTS WHO
ATTEND RACIALLY SEGREGATED PRIVATE SCHOOLS ONLY BECAUSE THE STATE
SINCERELY WISHES TO FOSTER QUALITY EDUCATION FOR ALL MISSISSIPPI
CHILDREN, AND, TO THAT END, HAS TAKEN STEPS TO INSURE THAT NO SUB-GROUP
OF SCHOOL CHILDREN WILL BE DEPRIVED OF AN IMPORTANT EDUCATIONAL TOOL
MERELY BECAUSE THEIR PARENTS HAVE CHOSEN TO ENROLL THEM IN SEGREGATED
PRIVATE SCHOOLS.  WE NEED NOT ASSUME THAT THE STATE'S TEXTBOOK AID TO
PRIVATE SCHOOLS HAS BEEN MOTIVATED BY OTHER THAN A SINCERE INTEREST IN
THE EDUCATIONAL WELFARE OF ALL MISSISSIPPI CHILDREN.  BUT GOOD
INTENTIONS AS TO ONE VALID OBJECTIVE DO NOT SERVE TO NEGATE THE STATE'S
INVOLVEMENT IN VIOLATION OF A CONSTITUTIONAL DUTY.  "THE EXISTENCE OF A
PERMISSIBLE PURPOSE CANNOT SUSTAIN AN ACTION THAT HAS AN IMPERMISSIBLE
EFFECT."  WRIGHT V. COUNSEL OF CITY OF EMPORIA, 407 U.S. 451, 462
(1972).  THE EQUAL PROTECTION CLAUSE WOULD BE A STERILE PROMISE IF
STATE INVOLVEMENT IN POSSIBLE PRIVATE ACTIVITY COULD BE SHIELDED
ALTOGETHER FROM CONSTITUTIONAL SCRUTINY SIMPLY BECAUSE ITS ULTIMATE END
WAS NOT DISCRIMINATION BUT SOME HIGHER GOAL. 

[[HC467'(ORIGINAL DOCUMENT PAGE 467)' 

THE DISTRICT COURT OFFERED AS FURTHER SUPPORT FOR ITS HOLDING THE
FINDING THAT MISSISSIPPI'S PUBLIC SCHOOLS "WERE FULLY ESTABLISHED AS
UNITARY SCHOOLS THROUGHOUT THE STATE NO LATER THAN 1970 - 71 (AND)
CONTINUE TO ATTRACT 90% OF THE STATE'S EDUCABLE CHILDREN."  340
F.SUPP., AT 1013.  WE NOTE, HOWEVER, THAT OVERALL STATEWIDE ATTENDANCE
FIGURES DO NOT FULLY AND ACCURATELY REFLECT THE IMPACT OF PRIVATE
SCHOOLS IN PARTICULAR SCHOOL DISTRICTS.  /9/  IN ANY EVENT, THE
CONSTITUTIONAL INFIRMITY OF THE MISSISSIPPI TEXTBOOK PROGRAM IS THAT IT
SIGNIFICANTLY AIDS THE ORGANIZATION AND CONTINUATION OF A SEPARATE
SYSTEM OF PRIVATE SCHOOLS WHICH, UNDER THE DISTRICT COURT HOLDING, MAY
DISCRIMINATE IF THEY SO DESIRE.  A STATE'S CONSTITUTIONAL OBLIGATION
REQUIRES IT TO STEER CLEAR, NOT ONLY OF OPERATING THE OLD DUAL SYSTEM
OF RACIALLY SEGREGATED SCHOOLS, BUT ALSO OF GIVING SIGNIFICANT AID TO
INSTITUTIONS THAT PRACTICE RACIAL OR OTHER INVIDIOUS DISCRIMINATION. 
THAT THE STATE'S PUBLIC SCHOOLS ARE NOW FULLY UNITARY, AS THE DISTRICT
COURT FOUND, IS IRRELEVANT. 

[[HC468'(ORIGINAL DOCUMENT PAGE 468)'

IV 

APPELLEES AND THE DISTRICT COURT ALSO PLACED GREAT RELIANCE ON OUR
DECISIONS IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1 (1947), AND
BOARD OF EDUCATION V. ALLEN, 392 U.S. 236 (1968).  IN EVERSON, WE HELD
THAT THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT DID NOT PROHIBIT
NEW JERSEY FROM "SPENDING TAX-RAISED FUNDS TO PAY THE BUS FARES OF
PAROCHIAL SCHOOL PUPILS AS A PART OF A GENERAL PROGRAM UNDER WHICH IT
PAYS THE FARES OF PUPILS ATTENDING PUBLIC AND OTHER SCHOOLS."  330
U.S., AT 17.  ALLEN, FOLLOWING EVERSON, SUSTAINED A NEW YORK LAW
REQUIRING SCHOOL TEXTBOOKS TO BE LENT FREE OF CHARGE TO ALL STUDENTS,
INCLUDING THOSE IN ATTENDANCE AT PAROCHIAL SCHOOLS, IN SPECIFIED
GRADES. 

NEITHER ALLEN NOR EVERSON IS DISPOSITIVE OF THE ISSUE BEFORE US IN
THIS CASE.  RELIGIOUS SCHOOLS "PURSUE TWO GOALS, RELIGIOUS INSTRUCTION
AND SECULAR EDUCATION."  BOARD OF EDUCATION V. ALLEN, SUPRA, AT 245. 
AND, WHERE CAREFULLY LIMITED SO AS TO AVOID THE PROHIBITIONS OF THE
"EFFECT" AND "ENTANGLEMENT" TESTS, STATES MAY ASSIST CHURCH-RELATED
SCHOOLS IN PERFORMING THEIR SECULAR FUNCTIONS, COMMITTEE FOR PUBLIC
EDUCATION V. NYQUIST, POST, AT 774, 775; LEVITT V. COMMITTEE FOR PUBLIC
EDUCATION, POST, AT 481, NOT ONLY BECAUSE THE STATES HAVE A SUBSTANTIAL
INTEREST IN THE QUALITY OF EDUCATION BEING PROVIDED BY PRIVATE SCHOOLS,
SEE COCHRAN V. LOUISIANA BOARD OF EDUCATION, 281 U.S. 370, 375 (1930),
BUT MORE IMPORTANTLY BECAUSE ASSISTANCE PROPERLY CONFINED TO THE
SECULAR FUNCTIONS OF SECTARIAN SCHOOLS DOES NOT SUBSTANTIALLY PROMOTE
THE READILY IDENTIFIABLE RELIGIOUS MISSION OF THOSE SCHOOLS AND IT DOES
NOT INTERFERE WITH THE FREE EXERCISE RIGHTS OF OTHERS. 

LIKE A SECTARIAN SCHOOL, A PRIVATE SCHOOL -- EVEN ONE THAT
DISCRIMINATES -- FULFILLS AN IMPORTANT EDUCATIONAL FUNCTION; HOWEVER,
THE DIFFERENCE IS THAT IN THE CONTEXT OF THIS CASE THE LEGITIMATE
EDUCATIONAL FUNCTION CANNOT BE ISOLATED FROM DISCRIMINATORY PRACTICES -
IF SUCH IN FACT EXIST.  UNDER BROWN V. BOARD OF EDUCATION, 347 U.S.
483 (1954), DISCRIMINATORY TREATMENT EXERTS A PERVASIVE INFLUENCE ON
THE ENTIRE EDUCATIONAL PROCESS.  THE PRIVATE SCHOOL THAT CLOSES ITS
DOORS TO DEFINED GROUPS OF STUDENTS ON THE BASIS OF CONSTITUTIONALLY
SUSPECT CRITERIA MANIFESTS, BY ITS OWN ACTIONS, THAT ITS EDUCATIONAL
PROCESSES ARE BASED ON PRIVATE BELIEF THAT SEGREGATION IS DESIRABLE IN
EDUCATION.  THERE IS NO REASON TO DISCRIMINATE AGAINST STUDENTS FOR
REASONS WHOLLY UNRELATED TO INDIVIDUAL MERIT UNLESS THE ARTIFICIAL
BARRIERS ARE CONSIDERED AN ESSENTIAL PART OF THE EDUCATIONAL MESSAGE TO
BE COMMUNICATED TO THE STUDENTS WHO ARE ADMITTED.  SUCH PRIVATE BIAS IS
NOT BARRED BY THE CONSTITUTION, NOR DOES IT INVOKE ANY SANCTION OF
LAWS, BUT NEITHER CAN IT CALL ON THE CONSTITUTION FOR MATERIAL AID FROM
THE STATE. 

OUR DECISIONS UNDER THE ESTABLISHMENT CLAUSE REFLECT THE "INTERNAL
TENSION IN THE FIRST AMENDMENT BETWEEN THE ESTABLISHMENT CLAUSE AND THE
FREE EXERCISE CLAUSE," TILTON V. RICHARDSON, 403 U.S. 672, 677 (1971). 
THIS DOES NOT MEAN, AS WE HAVE ALREADY SUGGESTED, THAT A STATE IS
CONSTITUTIONALLY OBLIGATED TO PROVIDE EVEN "NEUTRAL" SERVICES TO
EXERCISE IN OUR CONSTITUTIONAL SCHEME LEAVES ROOM FOR "PLAY IN THE
JOINTS" TO THE EXTENT OF CAUTIOUSLY DELINEATED SECULAR GOVERNMENTAL
ASSISTANCE TO RELIGIOUS SCHOOLS, DESPITE THE FACT THAT SUCH ASSISTANCE
TOUCHES ON THE CONFLICTING VALUES OF THE ESTABLISHMENT CLAUSE BY
INDIRECTLY BENEFITING THE RELIGIOUS SCHOOLS AND THEIR SPONSORS. 

IN CONTRAST, ALTHOUGH THE CONSTITUTION DOES NOT PROSCRIBE PRIVATE
BIAS, IT PLACES NO VALUE ON DISCRIMINATION AS IT DOES ON THE VALUES
INHERENT IN THE FREE EXERCISE CLAUSE. 

[[HC470'(ORIGINAL DOCUMENT PAGE 470)'  INVIDIOUS PRIVATE
DISCRIMINATION MAY BE CHARACTERIZED AS A FORM OF EXERCISING FREEDOM OF
ASSOCIATION PROTECTED BY THE FIRST AMENDMENT, BUT IT HAS NEVER BEEN
ACCORDED AFFIRMATIVE CONSTITUTIONAL PROTECTIONS.  AND EVEN SOME PRIVATE
DISCRIMINATION IS SUBJECT TO SPECIAL REMEDIAL LEGISLATION IN CERTAIN
CIRCUMSTANCES UNDER ^ 2 OF THE THIRTEENTH AMENDMENT; CONGRESS HAS MADE
SUCH DISCRIMINATION UNLAWFUL IN OTHER SIGNIFICANT CONTEXTS.  /10/
HOWEVER, NARROW MAY BE THE CHANNEL OF PERMISSIBLE STATE AID TO
DEGREE OF STATE ASSISTANCE THAN MAY BE GIVEN TO PRIVATE SCHOOLS WHICH
ENGAGE IN DISCRIMINATORY PRACTICES THAT WOULD BE UNLAWFUL IN A PUBLIC
SCHOOL SYSTEM. 

        V 

AT ORAL ARGUMENT, APPELLEES EXPRESSED CONCERN OVER THE PROCESS OF
DETERMINING THE SCOPE OF RELIEF TO BE GRANTED SHOULD APPELLANTS PREVAIL
ON THE MERITS.  THAT ASPECT OF THE CASE PRESENTS PROBLEMS BUT THE
PROCEDURAL DETAILS NEED NOT BE FULLY RESOLVED HERE.  THE DISTRICT COURT
ASSUMPTION THAT TEXTBOOK LOANS WERE PERMISSIBLE, EVEN TO RACIALLY
DISCRIMINATING PRIVATE SCHOOLS, OBVIATED ANY NECESSITY FOR THAT COURT
TO DETERMINE WHETHER SOME OF THE PRIVATE SCHOOLS COULD PROPERLY BE
CLASSIFIED AS "RACIALLY DISCRIMINATORY" AND HOW THAT DETERMINATION
MIGHT BEST BE MADE.  WE CONSTRUE THE COMPLAINT AS CONTEMPLATING AN
INDIVIDUAL DETERMINATION AS TO EACH PRIVATE SCHOOL IN MISSISSIPPI WHOSE
STUDENTS NOW RECEIVE TEXTBOOKS UNDER THE STATE'S TEXTBOOK LOAN PROGRAM;
RELIEF ON AN ASSUMPTION THAT ALL PRIVATE SCHOOLS WERE DISCRIMINATING,
THUS FORECLOSING INDIVIDUALIZED CONSIDERATION, WOULD NOT BE
APPROPRIATE. 

[[HC471'(ORIGINAL DOCUMENT PAGE 471)' 

THE PROPER INJUNCTIVE RELIEF CAN BE GRANTED WITHOUT IMPLYING A
FINDING THAT ALL THE PRIVATE SCHOOLS ALLEGED TO BE RECEIVING TEXTBOOK
AID ARE IN FACT PRACTICING RESTRICTIVE ADMISSION POLICIES.  PRIVATE
SCHOOLS ARE NOT FUNGIBLE AND THE FACT THAT SOME OR EVEN MOST MAY
PRACTICE DISCRIMINATION DOES NOT WARRANT BLANKET CONDEMNATION.  THE
DISTRICT COURT CAN APPROPRIATELY DIRECT THE APPELLEES TO SUBMIT FOR
APPROVAL A CERTIFICATION PROCEDURE UNDER WHICH ANY SCHOOL SEEKING
TEXTBOOKS FOR ITS PUPILS MAY APPLY FOR PARTICIPATION ON BEHALF OF
PUPILS.  THE CERTIFICATION BY THE SCHOOL TO THE MISSISSIPPI TEXTBOOK
PURCHASING BOARD SHOULD, AMONG OTHER FACTORS, AFFIRMATIVELY DECLARE ITS
ADMISSION POLICIES AND PRACTICES, STATE THE NUMBER OF ITS RACIALLY AND
RELIGIOUSLY IDENTIFIABLE MINORITY STUDENTS AND SUCH OTHER RELEVANT DATA
AS IS CONSISTENT WITH THIS OPINION.  THE STATE'S CERTIFICATION OF
ELIGIBILITY WOULD, OF COURSE, BE SUBJECT TO JUDICIAL REVIEW. 

THIS SCHOOL-BY-SCHOOL DETERMINATION MAY BE CUMBERSOME BUT NO MORE SO
THAN THE STATE'S PROCESS OF ASCERTAINING COMPLIANCE WITH EDUCATIONAL
STANDARDS.  NO PRESUMPTIONS FLOW FROM MERE ALLEGATIONS; NO ONE CAN BE
REQUIRED, CONSISTENT WITH DUE PROCESS, TO PROVE THE ABSENCE OF
VIOLATION OF LAW. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/  APP. 40 - 41. 

/2/  BRIEF FOR APPELLANTS 8 - 9. 

/3/  SEE NORWOOD V. HARRISON, 340 F.SUPP.  1003, 1007 (ND MISS. 
1972). 

/4/  THE REGULATION FOR DISTRIBUTION OF STATE-OWNED TEXTBOOKS FROM
1940 THROUGH 1970 PROVIDED AS FOLLOWS: 

"FOR THE DISTRIBUTION OF FREE TEXTBOOKS THE LOCAL CONTROL WILL BE
PLACED IN THE HANDS OF THE COUNTY SUPERINTENDENT OF EDUCATION.  ALL
REQUISITIONS FOR BOOKS SHALL BE MADE THROUGH HIM AND ALL SHIPMENTS OF
BOOKS SHALL BE INVOICED THROUGH HIM.  AT HIS DISCRETION HE MAY SET UP
CERTAIN REGULATIONS GOVERNING THE DISTRIBUTION OF BOOKS WITHIN THE
COUNTY, SUCH REGULATIONS NOT TO CONFLICT WITH THE REGULATIONS ADOPTED
BY THE STATE TEXTBOOK BOARD OR PROVISIONS OF THE FREE TEXTBOOK ACT." 

"THIS REGULATION WAS REVISED ON OCTOBER 14, 1970, TO READ AS
FOLLOWS: 

"PUBLIC SCHOOLS.  THE ADMINISTRATION OF THE TEXTBOOK PROGRAM IN THE
PUBLIC SCHOOLS SHALL BE THE RESPONSIBILITY OF THE ADMINISTRATIVE HEADS
OF THE COUNTY UNITS, CONSOLIDATED DISTRICTS, AND MUNICIPAL SEPARATE
DISTRICTS SET UP BY THE LEGISLATURE.  ALL TEXTBOOK TRANSACTIONS BETWEEN
THE PUBLIC SCHOOLS AND THE STATE SHALL BE CARRIED ON THROUGH THEM.  IT
SHALL BE THE DUTY OF THESE LOCAL CUSTODIANS TO RENDER ALL REPORTS
REQUIRED BY THE STATE; TO PLACE ORDERS FOR TEXTBOOKS FOR THE PUPILS IN
THEIR SCHOOLS; . . . 

"PRIVATE SCHOOLS.  PRIVATE AND PAROCHIAL SCHOOL PROGRAMS SHALL BE
THE RESPONSIBILITY OF THE STATE TEXTBOOK BOARD.  ALL TEXTBOOK
TRANSACTIONS WILL BE CARRIED OUT BETWEEN THE BOARD AND THE
ADMINISTRATIVE HEADS OF THESE SCHOOLS.  THEIR DUTIES SHALL BE THE SAME
AS OUTLINED ABOVE FOR PUBLIC SCHOOLS. 

/5/  THE VARIATION IN THE FIGURES AS TO SCHOOLS AND STUDENTS IS
ACCOUNTED FOR BY THE DISTRICT COURT'S OMISSION OF PARTICULAR KINDS OF
SCHOOLS IN MAKING THE FINDINGS.  THE EARLIER AND HIGHER FIGURES ARE
FOUND IN THE BRIEFS AND ARE NOT DISPUTED. 

/6/  BROWN V. SOUTH CAROLINA BOARD OF EDUCATION, 296 F.SUPP.  199
(SC), AFF'D PER CURIAM, 393 U.S. 222 (1968); POINDEXTER V. LOUISIANA
FINANCIAL ASSISTANCE COMM'N, 275 F.SUPP.  833 (ED LA. 1967), AFF'D. PER
CURIAM, 389 U.S. 571 (1968).  SEE WALLACE V. UNITED STATES, 389 U.S.
215 (1967), AFF'G LEE V. MACON COUNTY BOARD OF EDUCATION, 267 F.SUPP. 
458, 475 (MD ALA. 1967).  MISSISSIPPI'S TUITION GRANT PROGRAMS WERE
INVALIDATED IN COFFEY V. STATE EDUCATIONAL FINANCE COMM'N, 296 F.SUPP. 
1389 (SD MISS.  1969); COFFEY V. STATE EDUCATIONAL FINANCE COMM'N, SD
MISS., CA NO. 2906, DECIDED SEPT. 2, 1970 (UNREPORTED).  THE LATTER
CASE INVOLVED A STATUTE WHICH PROVIDED FOR TUITION LOANS RATHER THAN
TUITION GRANTS.  SEE GREEN V. CONNALLY, 330 F.SUPP.  1150 (DC), AFF'D
SUB NOM. COIT V. GREEN, 404 U.S. 997 (1971). 

/7/  APPELLEES MISPERCEIVE THE "CHILD BENEFIT" THEORY OF OUR CASES
DECIDED UNDER THE RELIGION CLAUSES OF THE FIRST AMENDMENT.  SEE, E. G.,
COCHRAN V. LOUISIANA BOARD OF EDUCATION, 281 U.S. 370 (1930), AND BOARD
OF EDUCATION V. ALLEN, 392 U.S. 236 (1968).  IN THOSE CASES THE COURT
OBSERVED THAT THE DIRECT FINANCIAL BENEFIT OF TEXTBOOK LOANS TO
STUDENTS IS "TO PARENTS AND CHILDREN, NOT TO SCHOOLS,"  ID., AT 244, IN
THE SENSE THAT PARENTS AND CHILDREN -- NOT SCHOOLS -- WOULD IN MOST
INSTANCES BE REQUIRED TO PROCURE THEIR TEXTBOOKS IF THE STATE DID NOT. 
BUT THE COURT HAS NEVER DENIED THAT "FREE BOOKS MAKE IT MORE LIKELY
THAT SOME CHILDREN CHOOSE TO ATTEND A SECTARIAN SCHOOL," IBID., JUST AS
IN OTHER CASES INVOLVING AID TO SECTARIAN SCHOOLS WE HAVE ACKNOWLEDGED
THAT THE VARIOUS FORMS OF STATE ASSISTANCE "SURELY AID THESE
(RELIGIOUS) INSTITUTIONS . . . IN THE SENSE THAT RELIGIOUS BODIES WOULD
OTHERWISE HAVE BEEN FORCED TO FIND OTHER SOURCES FROM WHICH TO FINANCE
THESE SERVICES."  TILTON V. RICHARDSON, 403 U.S. 672, 679 (1971). 
PLAINLY, RELIGION BENEFITS INDIRECTLY FROM GOVERNMENTAL AID TO PARENTS
AND CHILDREN; NEVERTHELESS, "(THAT RELIGION MAY INDIRECTLY BENEFIT FROM
GOVERNMENTAL AID . . . DOES NOT CONVERT THAT AID INTO AN IMPERMISSIBLE
ESTABLISHMENT OF RELIGION."  LEMON V. KURTZMAN, 403 U.S. 602, 664
(1971) (OPINION OF WHITE, J.). 

THE LEEWAY FOR INDIRECT AID TO SECTARIAN SCHOOLS HAS NO PLACE IN
DEFINING THE PERMISSIBLE SCOPE OF STATE AID TO PRIVATE RECIALLY
DISCRIMINATORY SCHOOLS.  "STATE SUPPORT OF SEGREGATED SCHOOLS THROUGH
ANY ARRANGEMENT, MANAGEMENT, FUNDS, OR PROPERTY CANNOT BE SQUARED WITH
THE (FOURTEENTH) AMENDMENT'S COMMAND THAT NO STATE SHALL DENY TO ANY
PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS." 
COOPER V. AARON, 358 U.S. 1, 19 (1958).  THUS MR. JUSTICE WHITE, THE
AUTHOR OF THE COURT'S OPINION IN ALLE, SUPRA, AND A DISSENTER IN LEMON
V. KURTZMAN, SUPRA, NOTED THERE THAT IN HIS VIEW, LEGISLATION PROVIDING
ASSISTANCE TO ANY SECTARIAN SCHOOL WHICH RESTRICTED ENTRY ON RACIAL OR
RELIGIOUS GROUNDS WOULD, TO THAT EXTENT, BE UNCONSTITUTIONAL.  LEMON,
SUPRA, AT 671 N. 2.  SEE PART IV, INFRA. 

/8/  ACCORD, GRIFFIN V. STATE BOARD OF EDUCATION, 296 F. SUPP. 1178,
1181 (ED VA. 1969); BROWN V. SOUTH CAROLINA BOARD OF EDUCATION, SUPRA.
CONTRA, GRIFFIN V. STATE BOARD OF EDUCATION, 239 F.SUPP.  560 (ED VA.
1965) (SUPERSEDED). 

/9/  IN TUNICA COUNTY, FOR EXAMPLE, WHERE APPELLANTS RESIDE, IN
RESPONSE TO GREEN V. CONNALLY, SUPRA, AND ALEXANDER V. HOLMES COUNTY
BOARD OF EDUCATION, 396 U.S. 19 (1969), ALL WHITE CHILDREN WERE
WITHDRAWN FROM PUBLIC SCHOOLS AND PLACED IN A PRIVATE ACADEMY HOUSED IN
LOCAL CHURCH FACILITIES AND STAFFED BY THE PRINCIPAL AND 17 HIGH SCHOOL
TEACHERS OF THE COUNTY SYSTEM, WHO RESIGNED IN MID-YEAR TO ACCEPT JOBS
AT THE NEW ACADEMY.  SEE UNITED STATES V. TUNICA COUNTY SCHOOL
DISTRICT, 323 F.SUPP.  1019 (ND MISS.  1970), AFF'D, 440 F.2D 377 (CA5
1971).  AS OF THE TIME OF THE FILING OF THIS LAWSUIT, THE SUCCESSOR
TUNICA INSTITUTE OF LEARNING ENROLLED 495 STUDENTS, ALL WHITE, AND
WOULD NOT ATTEST TO AN OPEN ENROLLMENT POLICY.  SIMILAR HISTORIES OF
HOLMES COUNTY, CANTON MUNICIPAL SEPARATE SCHOOL DISTRICT, JACKSON
MUNICIPAL SEPARATE SCHOOL DISTRICT, AMITE COUNTY, INDIANOLA MUNICIPAL
SEPARATE SCHOOL DISTRICT, AND GRENADA MUNICIPAL SEPARATE SCHOOL
DISTRICT ARE RECITED, WITHOUT CHALLENGE BY APPELLEES, IN BRIEF FOR
APPELLANTS 14 - 19. 

/10/  SEE, E. G., GRIFFIN V. BRECKENRIDGE, 403 U.S. 88 (1971); JONES
V. ALFRED H. MAYER CO., 392 U.S. 409 (1968); 42 U.S.C. ^ 2000A ET SEQ.
(BARRING DISCRIMINATION IN PUBLIC ACCOMMODATIONS); 42 U.S.C. ^ 2000E ET
SEQ. (BARRING DISCRIMINATION IN PRIVATE EMPLOYMENT); 42 U.S.C. ^ 3601
ET SEQ. (BARRING DISCRIMINATION IN PRIVATE HOUSING TRANSACTIONS). 

[[DOP 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN CONCUR IN THE RESULT. 

MELVYN R. LEVENTHAL ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEFS WERE JACK GREENBERG, JAMES M. NABRIT III, CHARLES STEPHEN
RALSTON, NORMAN J. CHACHKIN, AND ANTHONY G. AMSTERDAM. 

WILLIAM A. ALLAIN, FIRST ASSISTANT ATTORNEY GENERAL OF MISSISSIPPI,
ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE A. F.
SUMMER, ATTORNEY GENERAL, AND HEBER LADNER, JR., SPECIAL ASSISTANT
ATTORNEY GENERAL.  /1/ 

/1/  SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
POTTINGER, DEPUTY SOLICITOR GENERAL WALLACE, HARRIET S. SHAPIRO, BRIAN
K. LANDSBERG, AND THOMAS M. KEELING FILED A MEMORANDUM FOR THE UNITED
STATES AS AMICUS CURIAE URGING REVERSAL. 
..END :








LEVITT V. COMMITTEE FOR PUBLIC EDUCATION 413 U.S. 472 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK 

     NO. 72 - 269.  ARGUED MARCH 19, 1973--DECIDED JUNE 25, 1973

/1/  ; 342 F.SUPP.  439, AFFIRMED.  /1/  TOGETHER WITH NO. 72 -

  270, ANDERSON V. COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS

  LIBERTY ET AL., AND NO. 72 - 271, CATHEDRAL ACADEMY ET AL. V.

  COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY ET AL., ALSO

  ON APPEAL FROM THE SAME COURT. 


    THE NEW YORK LEGISLATURE APPROPRIATED $28,000,000 TO REIMBURSE

  NONPUBLIC SCHOOLS IN THE STATE "FOR EXPENSES OF SERVICES FOR

  EXAMINATION AND INSPECTION IN CONNECTION WITH ADMINISTRATION,

  GRADING AND THE COMPILING AND REPORTING OF THE RESULTS OF TESTS

  AND EXAMINATIONS, MAINTENANCE OF RECORDS OF PUPIL ENROLLMENT AND

  REPORTING THEREON, MAINTENANCE OF PUPIL HEALTH RECORDS, RECORDING

  OF PERSONNEL QUALIFICATIONS AND CHARACTERISTICS AND THE

  PREPARATION AND SUBMISSION TO THE STATE OF VARIOUS OTHER REPORTS

. . . ."  TESTS AND EXAMINATIONS, THE MOST EXPENSIVE OF THESE

  MANDATED SERVICES, ARE OF TWO KINDS: (A) STATE PREPARED TESTS,

  SUCH AS "REGENTS EXAMINATIONS" AND "PUPIL EVALUATION PROGRAM

  TESTS," AND (B) TRADITIONAL TEACHER-PREPARED TESTS, WHICH

  CONSTITUTE THE OVERWHELMING MAJORITY OF TESTS IN NONPUBLIC

  SCHOOLS.  QUALIFYING SCHOOLS RECEIVE ANNUALLY, PER PUPIL, $27

  (GRADES ONE THROUGH SIX) AND $45 (GRADES SEVEN THROUGH 12), AND

  ARE NOT REQUIRED TO ACCOUNT FOR THE MONEYS RECEIVED AND HOW THEY

  ARE SPENT.  WHILE THE ACT STATES THAT IT SHALL NOT BE CONSTRUED

  TO AUTHORIZE PAYMENTS FOR RELIGIOUS WORSHIP OR INSTRUCTION,

  CHURCH-SPONSORED SCHOOLS ARE ELIGIBLE TO RECEIVE PAYMENTS

  THEREUNDER.  THE THREE-JUDGE DISTRICT COURT FOUND THE ACT

  UNCONSTITUTIONAL UNDER THE ESTABLISHMENT CLAUSE AND PERMANENTLY

  ENJOINED ITS ENFORCEMENT.  THE COURT REJECTED APPELLANTS'

  ARGUMENT THAT PAYMENTS ARE MADE ONLY FOR "SECULAR, NEUTRAL, OR

  NON-IDEOLOGICAL" SERVICES.  THE COURT HELD THAT THE GREATEST

  PORTION OF THE FUNDS IS PAID FOR THE SERVICES OF TEACHERS IN

  TESTING STUDENTS AND THAT TESTING IS AN INTEGRAL PART OF THE

  TEACHING PROCESS.  THE COURT DISMISSED AS "FANCIFUL"  THE

  CONTENTION THAT A STATE MAY REIMBURSE CHURCH-RELATED SCHOOLS FOR

  COSTS INCURRED IN PERFORMING ANY SERVICE "MANDATED" BY STATE

  LAW.  HELD: 

    1.  THE STATUTE CONSTITUTES AN IMPERMISSIBLE AID TO RELIGION

  CONTRAVENING THE ESTABLISHMENT CLAUSE, SINCE NO ATTEMPT IS MADE

  AND NO MEANS ARE AVAILABLE TO ASSURE THAT INTERNALLY PREPARED

  TESTS, WHICH ARE "AN INTEGRAL PART OF THE TEACHING PROCESS," ARE

  FREE OF RELIGIOUS INSTRUCTION AND AVOID INCULCATING STUDENTS IN

  THE RELIGIOUS PRECEPTS OF THE SPONSORING CHURCH. 

[[HC473'(ORIGINAL DOCUMENT PAGE 473)'

  COMMITTEE FOR PUBLIC EDUCATION V. NYQUIST, POST, P. 756.  PP. 479
- 481. 

     2.  THE INQUIRY IS NOT WHETHER THE STATE SHOULD BE PERMITTED
TO

  PAY FOR ANY "MANDATED" ACTIVITY, BUT WHETHER THE CHALLENGED STATE

  AID HAS THE PRIMARY PURPOSE OR EFFECT OF ADVANCING RELIGION OR

  RELIGIOUS EDUCATION OR WHETHER IT LEADS TO EXCESSIVE ENTANGLEMENT

  BY THE STATE IN THE AFFIARS OF THE RELIGIOUS INSTITUTION.  PP.

  481 - 482. 

     3.  THE ACT PROVIDES ONLY FOR A SINGLE PER-PUPIL ALLOTMENT FOR

  A VARIETY OF SERVICES, SOME SECULAR AND SOME POTENTIALLY

  RELIGIOUS, AND THE COURTS CANNOT PROPERLY REDUCE THAT ALLOTMENT

  TO CORRESPOND TO THE ACTUAL COSTS OF PERFORMING REIMBURSABLE

  SECULAR SERVICES, AS THAT IS A LEGISLATIVE AND NOT A JUDICIAL

FUNCTION.  P. 482. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS, BRENNAN, AND
MARSHALL, JJ., FILED A SEPARATE STATEMENT, POST, P. 482.  WHITE, J.,
DISSENTED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

[[HC474'(ORIGINAL DOCUMENT PAGE 474)' 

WE ARE ASKED TO DECIDE WHETHER CHAPTER 138 OF NEW YORK STATE'S LAWS
OF 1970, UNDER WHICH THE STATE REIMBURSES PRIVATE SCHOOLS THROUGHOUT
THE STATE FOR CERTAIN COSTS OF TESTING AND RECORDKEEPING, VIOLATES THE
ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT.  A THREE-JUDGE DISTRICT
COURT, WITH ONE JUDGE DISSENTING, HELD THE ACT UNCONSTITUTIONAL.  342
F.SUPP.  439 (SDNY 1972).  WE NOTED PROBABLE JURISDICTION.  409 U.S.
977. 

        I 

IN APRIL 1970, THE NEW YORK LEGISLATURE APPROPRIATED $28,000,000 FOR
THE PURPOSE OF REIMBURSING NONPUBLIC SCHOOLS THROUGHOUT THE STATE 

"FOR EXPENSES OF SERVICES FOR EXAMINATION AND INSPECTION IN
CONNECTION WITH ADMINISTRATION, GRADING AND THE COMPILING AND REPORTING
OF THE RESULTS OF TESTS AND EXAMINATIONS, MAINTENANCE OF RECORDS OF
PUPIL ENROLLMENT AND REPORTING THEREON, MAINTENANCE OF PUPIL HEALTH
RECORDS, RECORDING OF PERSONNEL QUALIFICATIONS AND CHARACTERISTICS AND
THE PREPARATION AND SUBMISSION TO THE STATE OF VARIOUS OTHER REPORTS AS
PROVIDED FOR OR REQUIRED BY LAW OR REGULATION."  /1/  NEW YORK LAWS
1970, C. 138, ^ 2. 

AS INDICATED BY THE PORTION OF THE STATUTE QUOTED ABOVE, THE STATE HAS
IN ESSENCE SOUGHT TO REIMBURSE PRIVATE SCHOOLS FOR PERFORMING VARIOUS
"SERVICES" WHICH THE STATE "MANDATES."  OF THESE MANDATED SERVICES, BY
FAR THE MOST EXPENSIVE FOR NONPUBLIC SCHOOLS IS THE "ADMINISTRATION,
GRADING AND THE COMPILING AND REPORTING OF THE RESULTS OF TESTS AND
EXAMINATIONS." 

[[HC475'(ORIGINAL DOCUMENT PAGE 475)'  SUCH "TESTS AND EXAMINATIONS"
APPEAR TO BE OF TWO KINDS: (A) STATE PREPARED EXAMINATIONS, SUCH AS THE
"REGENTS EXAMINATIONS" AND THE "PUPIL EVALUATION PROGRAM TESTS,"  /2/
AND (B) TRADITIONAL TEACHER-PREPARED TESTS, WHICH ARE DRAFTED BY THE
NONPUBLIC SCHOOL TEACHERS FOR THE PURPOSE OF MEASURING THE PUPILS'
PROGRESS IN SUBJECTS REQUIRED TO BE TAUGHT UNDER STATE LAW.  /3/  THE
OVERWHELMING MAJORITY OF TESTING IN NONPUBLIC, AS WELL AS PUBLIC,
SCHOOLS IS OF THE LATTER VARIETY. 

[[HC476'(ORIGINAL DOCUMENT PAGE 476)' 

CHURCH SPONSORED AS WELL AS SECULAR NONPUBLIC SCHOOLS ARE ELIGIBLE
TO RECEIVE PAYMENTS UNDER THE ACT.  THE DISTRICT COURT MADE FINDINGS
THAT THE COMMISSIONER OF EDUCATION HAD "CONSTRUED AND APPLIED" THE ACT
"TO INCLUDE AS PERMISSIBLE BENEFICIARIES SCHOOLS WHICH (A) IMPOSE
RELIGIOUS RESTRICTIONS ON ADMISSIONS;(B) REQUIRE ATTENDANCE OF PUPILS
AT RELIGIOUS ACTIVITIES; (C) REQUIRE OBEDIENCE BY STUDENTS TO THE
DOCTRINES AND DOGMAS OF A PARTICULAR FAITH; (D) REQUIRE PUPILS TO
ATTEND INSTRUCTION IN THE THEOLOGY OR DOCTRINE OF A PARTICULAR FAITH;
(E) ARE AN INTEGRAL PART OF THE RELIGIOUS MISSION OF THE CHURCH
SPONSORING IT; (F) HAVE AS A SUBSTANTIAL PURPOSE THE INCULCATION OF
RELIGIOUS VALUES; (G) IMPOSE RELIGIOUS RESTRICTIONS ON FACULTY
APPOINTMENTS; AND (H) IMPOSE RELIGIOUS RESTRICTIONS ON WHAT OR HOW THE
FACULTY MAY TEACH."  342 F.SUPP., AT 440 - 441. 

A SCHOOL SEEKING AID UNDER THE ACT IS REQUIRED TO SUBMIT AN
APPLICATION TO THE COMMISSIONER OF EDUCATION, WHO MAY DIRECT THE
APPLICANT TO FILE "SUCH ADDITIONAL REPORTS" AS HE DEEMS NECESSARY TO
MAKE A DETERMINATION OF ELIGIBILITY.  NEW YORK LAWS 1970, C. 138, ^ 4. 
QUALIFYING SCHOOLS RECEIVE AN ANNUAL PAYMENT OF $27 FOR EACH PUPIL IN
AVERAGE DAILY ATTENDANCE IN GRADES ONE THROUGH SIX AND $45 FOR EACH
PUPIL IN AVERAGE DAILY ATTENDANCE IN GRADES SEVEN THROUGH 12.  /4/
PAYMENTS ARE MADE IN TWO INSTALLMENTS:  BETWEEN JANUARY 15 AND MARCH 15
OF THE SCHOOL YEAR, ONE-HALF OF THE "ESTIMATED TOTAL APPORTIONMENT" IS
PAID DIRECTLY TO THE SCHOOL; THE BALANCE IS PAID BETWEEN APRIL 15 AND
JUNE 15. 

[[HC477'(ORIGINAL DOCUMENT PAGE 477)'  THE COMMISSIONER IS EMPOWERED
TO MAKE "LATER PAYMENTS FOR THE PURPOSE OF ADJUSTING AND CORRECTING
APPORTIONMENTS."  ID., AT SEC. 5. 

BE CONSTRUED TO AUTHORIZE THE MAKING OF ANY PAYMENT UNDER THIS ACT FOR
RELIGIOUS WORSHIP OR INSTRUCTION."  HOWEVER, THE ACT CONTAINS NO
PROVISION AUTHORIZING STATE AUDITS OF SCHOOL FINANCIAL RECORDS TO
DETERMINE WHETHER A SCHOOL'S ACTUAL COSTS IN COMPLYING WITH THE
MANDATED SERVICES ARE LESS THAN THE ANNUAL LUMP SUM PAYMENT.  NOR DOES
THE ACT REQUIRE A SCHOOL TO RETURN TO THE STATE MONEYS RECEIVED IN
EXCESS OF ITS ACTUAL EXPENSES.  /5/  IN APPELLANT NYQUIST'S ANSWERS TO
APPELLEES' INTERROGATORIES, WHICH THE PARTIES STIPULATED COULD BE
"TAKEN AS ACCEPTED FACTS FOR THE PURPOSES OF THIS CASE," THE
COMMISSIONER STATED THAT "QUALIFYING SCHOOLS ARE NOT REQUIRED TO SUBMIT
REPORTS ACCOUNTING FOR THE MONEYS RECEIVED AND HOW THEY ARE EXPENDED." 

[[HC478'(ORIGINAL DOCUMENT PAGE 478)'

        II 

APPELLEES ARE NEW YORK TAXPAYERS AND AN UNINCORPORATED ASSOCIATION. 
THEY FILED THIS SUIT IN THE UNITED STATES DISTRICT COURT CLAIMING THAT
CHAPTER 138 ABRIDGES THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT. 
AN INJUNCTION WAS SOUGHT ENJOINING APPELLANTS LEVITT AND NYQUIST, THE
STATE COMPTROLLER AND COMMISSIONER OF EDUCATION, FROM ENFORCING THE
ACT.  STATE SENATOR EARL W. BRYDGES AND CERTAIN CATHOLIC AND JEWISH
PAROCHIAL SCHOOLS QUALIFIED TO RECEIVE AID UNDER THE ACT WERE PERMITTED
TO INTERVENE AS PARTIES DEFENDANT. 

A THREE-JUDGE DISTRICT COURT WAS CONVENED PURSUANT TO 28 U.S.C. ^^
2281, 2284.  AFTER A HEARING ON THE MERITS, A MAJORITY OF THE DISTRICT
COURT PERMANENTLY ENJOINED APPELLANTS FROM ENFORCEMENT OF THE ACT.  THE
DISTRICT COURT CONCLUDED THAT THIS CASE WAS CONTROLLED BY OUR DECISION
IN LEMON V. KURTZMAN, 403 U.S. 602 (1971), AND HELD THE ACT
UNCONSTITUTIONAL UNDER THE ESTABLISHMENT CLAUSE. 

IN REACHING ITS DECISION, THE DISTRICT COURT REJECTED APPELLANTS'
ARGUMENT THAT THE ACT IS CONSTITUTIONAL BECAUSE PAYMENTS ARE MADE ONLY
FOR SERVICES THAT ARE "SECULAR, NEUTRAL, OR NONIDEOLOGICAL" IN
CHARACTER.  ID., AT 616.  THE COURT STATED: 

"BY FAR THE GREATEST PORTION OF THE FUNDS APPROPRIATED UNDER CHAPTER
138 IS PAID FOR THE SERVICES OF TEACHERS IN TESTING STUDENTS, AND
TESTING IS AN INTEGRAL PART OF THE TEACHING PROCESS."  342 F.SUPP., AT
444. 

LIKEWISE, THE COURT DISMISSED AS "FANCIFUL" THE CONTENTION THAT A
STATE MAY REIMBURSE CHURCH-RELATED SCHOOLS FOR COSTS INCURRED IN
PERFORMING ANY SERVICE "MANDATED" BY STATE LAW. 

        III 

IN COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST,
POST, P. 756, THE COURT HAS TODAY STRUCK DOWN A PROVISION OF NEW YORK
LAW AUTHORIZING "DIRECT MONEY GRANTS FROM THE STATE TO 'QUALIFYING'
NONPUBLIC SCHOOLS TO BE USED FOR THE 'MAINTENANCE AND REPAIR OF . . .
SCHOOL FACILITIES AND EQUIPMENT TO ENSURE THE HEALTH, WELFARE AND
SAFETY OF ENROLLED PUPILS.'" 

[[HC479'(ORIGINAL DOCUMENT PAGE 479)'  ID., AT 762 (FOOTNOTE
OMITTED).  /6/  THE INFIRMITY OF THE STATUTE IN NYQUIST LAY IN ITS
UNDIFFERENTIATED TREATMENT OF THE MAINTENANCE AND REPAIR OF FACILITIES
DEVOTED TO RELIGIOUS AND SECULAR FUNCTIONS OF RECIPIENT, SECTARIAN
SCHOOLS.  SINCE "(NO ATTEMPT IS MADE TO RESTRICT PAYMENTS TO THOSE
EXPENDITURES RELATED TO THE UPKEEP OF FACILITIES USED EXCLUSIVELY FOR
SECULAR PURPOSES," THE COURT HELD THAT THE STATUTE HAS THE PRIMARY
EFFECT OF ADVANCING RELIGION AND IS THEREFORE, VIOLATIVE OF THE
ESTABLISHMENT CLAUSE.  ID., AT 774. 

THE STATUTE NOW BEFORE US, AS WRITTEN AND AS APPLIED BY THE
COMMISSIONER OF EDUCATION, CONTAINS SOME OF THE SAME CONSTITUTIONAL
FLAWS THAT LED THE COURT TO ITS DECISION IN NYQUIST.  /7/  AS NOTED
PREVIOUSLY, CHAPTER 138 PROVIDES FOR A DIRECT MONEY GRANT TO SECTARIAN
SCHOOLS FOR PERFORMANCE OF VARIOUS "SERVICES." 

[[HC480'(ORIGINAL DOCUMENT PAGE 480)'  AMONG THOSE SERVICES IS THE
MAINTENANCE OF A REGULAR PROGRAM OF TRADITIONAL INTERNAL TESTING
DESIGNED TO MEASURE PUPIL ACHIEVEMENT.  YET, DESPITE THE OBVIOUSLY
INTEGRAL ROLE OF SUCH TESTING IN THE TOTAL TEACHING PROCESS, NO ATTEMPT
IS MADE UNDER THE STATUTE, AND NO MEANS ARE AVAILABLE, TO ASSURE THAT
INTERNALLY PREPARED TESTS ARE FREE OF RELIGIOUS INSTRUCTION. 

WE CANNOT IGNORE THE SUBSTANTIAL RISK THAT THESE EXAMINATIONS
PREPARED BY TEACHERS UNDER THE AUTHORITY OF RELIGIOUS INSTITUTIONS,
WILL BE DRAFTED WITH AN EYE, UNCONSCIOUSLY OR OTHERWISE, TO INCULCATE
STUDENTS IN THE RELIGIOUS PRECEPTS OF THE SPONSORING CHURCH.  WE DO NOT
"ASSUME THAT TEACHERS IN PAROCHIAL SCHOOLS WILL BE GUILTY OF BAD FAITH
OR ANY CONSCIOUS DESIGN TO EVADE THE LIMITATIONS IMPOSED BY THE STATUTE
AND THE FIRST AMENDMENT."  LEMON V. KURTZMAN, 403 U.S., AT 618.  BUT
THE POTENTIAL FOR CONFLICT "INHERES IN THE SITUATION,"  AND BECAUSE OF
THAT THE STATE IS CONSTITUTIONALLY COMPELLED TO ASSURE THAT THE STATE
SUPPORTED ACTIVITY IS NOT BEING USED FOR RELIGIOUS INDOCTRINATION.  SEE
ID., AT 617, 619.  SINCE THE STATE HAS FAILED TO DO SO HERE, WE ARE
LEFT WITH NO CHOICE UNDER NYQUIST BUT TO HOLD THAT CHAPTER 138
CONSTITUTES AN IMPERMISSIBLE AID TO RELIGION; THIS IS SO BECAUSE THE
AID THAT WILL BE DEVOTED TO SECULAR FUNCTIONS IS NOT IDENTIFIABLE AND
SEPARABLE FROM AID TO SECTARIAN ACTIVITIES. 

IN THE DISTRICT COURT AND IN THIS COURT APPELLANTS INSISTED THAT
PAYMENTS UNDER CHAPTER 138 DO NOT AID THE RELIGIOUS MISSION OF CHURCH
RELATED SCHOOLS BUT MERELY PROVIDE PARTIAL REIMBURSEMENT FOR TOTALLY
NONSECTARIAN ACTIVITIES PERFORMED AT THE BEHEST OF THE STATE. 
APPELLANTS, IN OTHER WORDS, CONTEND THAT THIS CASE IS CONTROLLED BY OUR
DECISIONS IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1 (1947), AND
BOARD OF EDUCATION V. ALLEN, 392 U.S. 236 (1968). 

[[HC481'(ORIGINAL DOCUMENT PAGE 481)'  IN EVERSON WE HELD THAT NEW
JERSEY COULD REIMBURSE PARENTS OF PAROCHIAL SCHOOL CHILDREN FOR
EXPENSES INCURRED IN TRANSPORTING THE CHILDREN ON BUSES TO THEIR
SCHOOLS.  AND IN ALLEN WE UPHELD A NEW YORK STATUTE REQUIRING LOCAL
SCHOOL BOARDS TO LEND SECULAR TEXTBOOKS "TO ALL CHILDREN RESIDING IN
SUCH DISTRICT WHO ARE ENROLLED IN GRADES SEVEN TO TWELVE OF A PUBLIC OR
PRIVATE SCHOOL WHICH COMPLIES WITH THE COMPULSORY EDUCATION LAW."  ID.,
AT 239. 

IN THIS CASE, HOWEVER, WE ARE FACED WITH STATE-SUPPORTED ACTIVITIES
OF A SUBSTANTIALLY DIFFERENT CHARACTER FROM BUS RIDES OR STATE-PROVIDED
TEXTBOOKS.  ROUTINE TEACHER-PREPARED TESTS, AS NOTED BY THE DISTRICT
COURT, ARE "AN INTEGRAL PART OF THE TEACHING PROCESS."  342 F.SUPP., AT
444.  AND, "(IN TERMS OF POTENTIAL FOR INVOLVING SOME ASPECT OF FAITH
OR MORALS IN SECULAR SUBJECTS, A TEXTBOOK'S CONTENT IS ASCERTAINABLE,
BUT A TEACHER'S HANDLING OF A SUBJECT IS NOT."  LEMON V. KURTZMAN, 403
U.S., AT 617. 

TO THE EXTENT THAT APPELLANTS ARGUE THAT THE STATE SHOULD BE
PERMITTED TO PAY FOR ANY ACTIVITY "MANDATED" BY STATE LAW OR
REGULATION, WE MUST REJECT THE CONTENTION.  STATE OR LOCAL LAW MIGHT,
FOR EXAMPLE, "MANDATE" MINIMUM LIGHTING OR SANITARY FACILITIES FOR ALL
SCHOOL BUILDINGS, BUT SUCH COMMANDS WOULD NOT AUTHORIZE A STATE TO
PROVIDE SUPPORT FOR THOSE FACILITIES IN CHURCH-SPONSORED SCHOOLS.  THE
ESSENTIAL INQUIRY IN EACH CASE, AS EXPRESSED IN OUR PRIOR DECISIONS, IS
WHETHER THE CHALLENGED STATE AID HAS THE PRIMARY PURPOSE OR EFFECT OF
ADVANCING RELIGION OR RELIGIOUS EDUCATION OR WHETHER IT LEADS TO
EXCESSIVE ENTANGLEMENT BY THE STATE IN THE AFFIARS OF THE RELIGIOUS
INSTITUTION.  COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V.
NYQUIST, SUPRA, AT 772 - 773 (413 U.S. PT. 3); KURTZMAN, SUPRA, AT 612
613. 

[[HC482'(ORIGINAL DOCUMENT PAGE 482)'  THAT INQUIRY WOULD BE
IRREVERSIBLY FRUSTRATED IF THE ESTABLISHMENT CLAUSE WERE READ AS
PERMITTING A STATE TO PAY FOR WHATEVER IT REQUIRES A PRIVATE SCHOOL TO
DO. 

WE HOLD THAT THE LUMP-SUM PAYMENTS UNDER CHAPTER 138 VIOLATE THE
ESTABLISHMENT CLAUSE.  SINCE CHAPTER 138 PROVIDES ONLY FOR A SINGLE PER
PUPIL ALLOTMENT FOR A VARIETY OF SPECIFIED SERVICES, SOME SECULAR AND
SOME POTENTIALLY RELIGIOUS, NEITHER THIS COURT NOR THE DISTRICT COURT
CAN PROPERLY REDUCE THAT ALLOTMENT TO AN AMOUNT CORRESPONDING TO THE
ACTUAL COSTS INCURRED IN PERFORMING REIMBURSABLE SECULAR SERVICES. 
THAT IS A LEGISLATIVE, NOT A JUDICIAL FUNCTION. 

ACCORDINGLY, THE JUDGEMENT OF THE DISTRICT COURT IS AFFIRMED. 

/1/  N. Y. EDUC.  LAW ^ 305 CHARGES THE COMMISSIONER OF EDUCATION
WITH THE DUTY OF MAINTAINING GENERAL SUPERVISION OVER ALL SCHOOLS
THROUGHOUT THE STATE AND WITH MAKING SURE THAT EACH SCHOOL IS "EXAMINED
AND INSPECTED." 

/2/  THE REGENTS' EXAMINATIONS ARE DESCRIBED BY APPELLANTS LEVITT
AND NYQUIST AS "STATE-WIDE TESTS OF SUBJECT MATTER ACHIEVEMENT."  THE
PUPIL EVALUATION PROGRAM TESTS, THE SO-CALLED "PEP TESTS," ARE ALSO
ADMINISTERED THROUGHOUT THE STATE IN GRADES THREE, SIX, AND NINE. 

/3/  THE DISTRICT COURT INDICATED THAT THERE WAS SOME DOUBT AS TO
WHETHER TEACHER-PREPARED TESTS ARE WITHIN THE SCOPE OF THE ACT.  THE
UNCERTAINTY WAS DUE TO ONE OF APPELLANT NYQUIST'S ANSWERS TO APPELLEES'
INTERROGATORIES, WHICH STATED THAT "ONLY THE REGENTS SCHOLARSHIP AND
JANUARY AND JUNE REGENTS EXAMINATIONS MIGHT BE REGARDED AS SPECIFICALLY
MANDATED."  342 F.SUPP.  439, 441 (EMPHASIS IN ORIGINAL ITERROGATORY). 
THE DISTRICT COURT, HOWEVER, FOUND IT UNNECESSARY TO RESOLVE THIS
FACTUAL AMBIGUITY, STATING:  "WHILE OUR DECISION AS TO THE
CONSTITUTIONALITY OF THE STATUTE DOES NOT TURN ON THE FACTUAL QUESTION
SO PRESENTED, WE MENTION IT TO ILLUSTRATE THE LACK OF CERTAINTY AS TO
THE PURPOSES FOR WHICH THE MONEYS RECEIVED ARE ACTUALLY USED, OR,
INDEED, WHETHER THEY CAN BE REGARDED AS SPECIFICALLY 'MANDATED.'" 
IBID.     IN THIS COURT, APPELLANTS HAVE INSISTED THAT SINCE TEACHER
PREPARED EXAMINATIONS ARE REQUIRED BY STATE REGULATION THEY ARE
INCLUDED WITHIN THE SERVICES REIMBURSED UNDER THE ACT.  IN SUPPORT OF
THE FORMER PROPOSITION, THE APPELLANTS CITE ^ 176.1 (B) OF THE
REGULATIONS OF THE COMMISSIONER OF EDUCATION, WHICH PROVIDES THAT ALL
NONPUBLIC SCHOOLS 

"SHALL CONDUCT IN ALL GRADES IN WHICH INSTRUCTION IS OFFERED A
CONTINUING PROGRAM OF INDIVIDUAL PUPIL TESTING DESIGNED TO PROVIDE AN
ADEQUATE BASIS FOR EVALUATING PUPIL ACHIEVEMENT, AND IN ADDITION SHALL
ADMINISTER, RATE AND REPORT THE RESULTS OF ALL SPECIFIC TESTS OR
EXAMINATIONS WHICH MAY BE PRESCRIBED BY THE COMMISSIONER."  8 N. Y. C.
R. R. ^ 176.1 (B). 

APPELLEES DO NOT CONTEST THE VALIDITY OF APPELLANTS'  CONSTRUCTION
OF THE ACT, AND WE ACCEPT IT FOR THE PURPOSES OF THIS LITIGATION. 

/4/  EXACTLY HOW THE $27 AND $45 FIGURES WERE ARRIVED AT IS SOMEWHAT
UNCLEAR.  APPELLANT NYQUIST, IN HIS ANSWER TO APPELLEES'
INTERROGATORIES IN THE COURT BELOW, GAVE THE FOLLOWING EXPLANATION: 

"THAT PRIOR TO THE ENACTMENT OF CHAPTER 138 OF THE LAWS OF 1970, A
CONFERENCE WAS HELD IN WHICH REPRESENTATIVES OF THE OFFICE OF THE
COUNSEL TO THE GOVERNOR, OF THE DIVISION OF THE BUDGET IN THE EXECUTIVE
DEPARTMENT AND OF THE STATE EDUCATION DEPARTMENT PARTICIPATED; THAT AT
SAID CONFERENCE THE REPRESENTATIVES OF THE STATE EDUCATION DEPARTMENT
WERE ASKED WHETHER THE DOLLAR AMOUNT IN QUESTION WAS REASONABLE AND
THAT THE ANSWER WAS THAT TO THE BEST OF THEIR JUDGMENT THE AMOUNT WAS
REASONABLE; THAT NO RECORD OF THE SAID CONFERENCE WAS MADE." 

/5/  SUBSEQUENT TO THE ENACTMENT OF CHAPTER 138, THE STATE CONDUCTED
SEVERAL STUDIES TO DETERMINE WHETHER THE PER-PUPIL ALLOTMENT UNDER THE
STATUTE EXCEEDED THE ACTUAL COSTS TO SCHOOLS IN PERFORMING THE MANDATED
SERVICES.  THE DISTRICT COURT FOUND THE RESULTS "CLOUDY": 

"IF SUCH ITEMS AS 'TEACHER EXAMINATIONS' AND 'ENTRANCE EXAMINATIONS'
ARE INCLUDED IN THE LIST OF 'MANDATED SERVICES,' IT APPEARS THAT THE
SCHOOLS' EXPENSES ARE AT LEAST AS GREAT AS THE AMOUNTS THEY RECEIVE
FROM THE STATE.  BUT IF THOSE ITEMS ARE EXCLUDED, THE AMOUNTS RECEIVED
FROM THE STATE ARE SUBSTANTIALLY GREATER THAN THE SCHOOLS' EXPENSES." 
342 F.SUPP., AT 441. 

AS NOTED ABOVE, THE COURT DID NOT RESOLVE THE QUESTION WHETHER
PAYMENTS UNDER THE ACT WERE INTENDED TO COMPENSATE SCHOOLS FOR INTERNAL
TESTING.  SEE N. 3, SUPRA. 

/6/  THE COURT'S HOLDING AS TO GRANTS OF PUBLIC FUNDS FOR
"MAINTENANCE AND RAPIR OF . . . SCHOOL FACILITIES AND EQUIPMENT . . ." 
IS SUFFICIENT AUTHORITY TO SUPPORT AFFIRMANCE OF THE DISTRICT COURT
HOLDING IN THIS CASE.  THE AUTHOR OF THIS OPINION JOINED THAT PART OF
THE COURT'S HOLDING IN NYQUIST, SUPRA, WHILE DISSENTING FROM THE
HOLDING THAT TUITION GRANTS AND TAX CREDITS TO PARENTS ARE
UNCONSTITUTIONAL, AND IS, OF COURSE, BOUND BY ALL PARTS OF THE
JUDGMENT. 

/7/  WE DO NOT DOUBT THAT THE NEW YORK LEGISLATURE HAD A "SECULAR
LEGISLATIVE PURPOSE" IN ENACTING CHAPTER 138.  SEE EPPERSON V.
ARKANSAS, 393 U.S. 97 (1968).  THE FIRST SECTION OF THE ACT PROVIDES
THAT THE STATE HAS A "PRIMARY RESPONSIBILITY" TO ASSURE THAT ITS YOUTH
RECEIVE AN ADEQUATE EDUCATION; THAT THE STATE HAS THE "DUTY AND
AUTHORITY" TO EXAMINE AND INSPECT ALL SCHOOLS WITHIN ITS BORDERS TO
MAKE SURE THAT ADEQUATE EDUCATIONAL OPPORTUNITIES ARE BEING PROVIDED;
AND THAT THE STATE HAS A LEGITIMATE INTEREST IN ASSISTING THOSE SCHOOLS
INSOFAR AS THEY AID THE STATE IN FULFILLING ITS RESPONSIBILITY. 

[[DOP 

MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR. JUSTICE MARSHALL
ARE OF THE VIEW THAT AFFIRMANCE IS COMPELLED BY OUR DECISION TODAY IN
COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, POST, P.
756, AND SLOAN V. LEMON, POST, P. 825. 

[[DOP 

MR. JUSTICE WHITE DISSENTS. 

JEAN M. COON, ASSISTANT SOLICITOR GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR APPELLANTS IN NOS. 72 - 269 AND 72 - 270.  WITH HER ON THE
BRIEF FOR APPELLANTS IN NO. 72 - 269 WERE LOUIS J. LEFKOWITZ, ATTORNEY
GENERAL, AND RUTH KESSLER TOCH, SOLICITOR GENERAL.  JOHN F. HAGGERTY
AND LOUIS P. CONTIGUGLIA WERE ON THE BRIEFS FOR APPELLANT IN NO. 72 -
270.  PORTER R. CHANDLER ARGUED THE CAUSE FOR APPELLANTS IN NO. 72 -
271.  WITH HIM ON THE BRIEFS WAS RICHARD E. NOLAN.  NATHAN LEWIN AND
JULIUS BERMAN WERE ON THE BRIEF FOR APPELLANTS BAIS YAAKOV ACADEMY FOR
GIRLS ET AL. IN NO. 72 - 271. 

LEO PFEFFER AGRUED THE CAUSE AND FILED A BRIEF FOR APPELLEES. 

ETHAN A. HITCHCOCK FILED A BRIEF FOR NEW YORK STATE ASSOCIATION OF
INDEPENDENT SCHOOLS AS AMICUS CURIAE URGING REVERSAL. 
..END :







HELLER V. NEW YORK 413 U.S. 483 


       CERTIORARI TO THE COURT OF APPEALS OF NEW YORK 

    NO. 71 - 1043.  ARGUED NOVEMBER 14, 1972--DECIDED JUNE 25,

  1973; 29 N. Y. 2D 319, 277 N. E. 2D 651, VACATED AND REMANDED. 


    PETITIONER WAS MANAGER OF A MOVIE THEATER WHERE A SEXUALLY

  EXPLICIT FILM WAS EXHIBITED.  AFTER POLICE OFFICERS SAW PART OF

  THE FILM, AN ASSISTANT DISTRICT ATTORNEY REQUESTED A NEW YORK

  CRIMINAL COURT JUDGE TO VIEW IT.  UPON SEEING THE ENTIRE

  PERFORMANCE, THE JUDGE SIGNED WARRANTS FOR SEIZURE OF THE FILM

  AND FOR PETITIONER'S ARREST ON THE GROUND THAT THE FILM WAS

  OBSCENE.  EXHIBITION OF AN OBSCENE FILM VIOLATES NEW YORK PENAL

  LAW ^ 235.05.  NO PRETRIAL MOTION WAS MADE FOR RETURN OF THE

  SINGLE FILM COPY SEIZED OR FOR ITS SUPPRESSION AS EVIDENCE. 

  THERE WAS NO SHOWING BELOW THAT THE SEIZURE PREVENTED EXHIBITION

OF THE FILM BY USE OF ANOTHER COPY, AND THE RECORD DOES NOT

  INDICATE WHETHER ANOTHER COPY WAS AVAILABLE.  PETITIONER'S TRIAL

  WAS HELD 47 DAYS AFTER HIS ARREST AND THE FILM SEIZURE, AND HE

  WAS CONVICTED.  HE ARGUED THAT SEIZURE OF THE FILM WITHOUT A

  PRIOR ADVERSARY HEARING VIOLATED THE FOURTEENTH AMENDMENT.  HE

  ALSO CHALLENGED HIS CONVICTION ON SUBSTANTIVE GROUNDS, ARGUING

  THAT HE WAS CONVICTED UNDER STANDARDS OF OBSCENITY BOTH OVERBROAD

  AND UNCONSTITUTIONALLY VAGUE, AND THAT FILMS SHOWN ONLY TO

  CONSENTING ADULTS IN PRIVATE ARE CONSTITUTIONALLY PROTECTED.  THE

NEW YORK COURT OF APPEALS AFFIRMED HIS CONVICTION, HOLDING THAT

  AN ADVERSARY HEARING PRIOR TO SEIZURE OF THE FILM WAS NOT

  REQUIRED AND THAT AN EX PARTE WARRANT, ISSUED AFTER A JUDICIAL

  DETERMINATION OF OBSCENITY, WAS CONSTITUTIONALLY SUFFICIENT. 

  HELD: 

     1.  WHERE A FILM IS SEIZED FOR THE BONA FIDE PURPOSE OF

  PRESERVING IT AS EVIDENCE IN A CRIMINAL PROCEEDING, AND IT IS

  SEIZED PURSUANT TO A WARRANT ISSUED AFTER A DETERMINATION OF

  PROBABLE OBSCENITY BY A NEUTRAL MAGISTRATE, AND FOLLOWING THE

  SEIZURE A PROMPT JUDICIAL DETERMINATION OF THE OBSCENITY ISSUE IN

  AN ADVERSARY PROCEEDING IS AVAILABLE AT THE REQUEST OF ANY

  INTERESTED PARTY, THE SEIZURE IS CONSTITUTIONALLY PERMISSIBLE. 

  ON A SHOWING TO THE TRIAL COURT THAT OTHER COPIES OF THE FILM ARE

  NOT AVAILABLE FOR EXHIBITION, THE COURT SHOULD PERMIT THE SEIZED

  FILM TO BE COPIED SO THAT EXHIBITION CAN BE CONTINUED PENDING

  JUDICIAL RESOLUTION OF THE OBSCENITY ISSUE IN AN ADVERSARY

  PROCEEDING.  OTHERWISE, THE FILM MUST BE RETURNED. 

[[HC484'(ORIGINAL DOCUMENT PAGE 484)'

  WITH SUCH SAFEGUARDS, A PRE-SEIZURE ADVERSARY HEARING IS NOT
MANDATED BY THE FIRST

  AMENDMENT.  PP. 488 - 493. 

     2.  THE CASE IS REMANDED TO AFFORD THE STATE COURTS AN

  OPPORTUNITY TO RECONSIDER PETITIONER'S SUBSTANTIVE CHALLENGES IN

  LIGHT OF MILLER V. CALIFORNIA, ANTE, P. 15, AND PARIS ADULT

  THEATRE I V. SLATON, ANTE, P. 49, WHICH ESTABLISH GUIDELINES FOR

  THE LAWFUL STATE REGULATION OF OBSCENE MATERIAL.  P. 494. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 494.  BRENNAN, J., FILED A DISSENTING
OPINION, IN WHICH STEWART AND MARSHALL, JJ., JOINED, POST, P. 494. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT IN THIS CASE TO DETERMINE WHETHER A JUDICIAL
OFFICER AUTHORIZED TO ISSUE WARRANTS, WHO HAS VIEWED A FILM AND FINDS
IT TO BE OBSCENE, CAN ISSUE A CONSTITUTIONALLY VALID WARRANT FOR THE
FILM'S SEIZURE AS EVIDENCE IN A PROSECUTION AGAINST THE EXHIBITOR,
WITHOUT FIRST CONDUCTING AN ADVERSARY HEARING ON THE ISSUE OF PROBABLE
OBSCENITY. 

PETITIONER WAS MANAGER OF A COMMERCIAL MOVIE THEATER IN THE
GREENWICH VILLAGE AREA OF NEW YORK CITY. 

[[HC485'(ORIGINAL DOCUMENT PAGE 485)'  ON JULY 29, 1969, A FILM
CALLED "BLUE MOVIE" WAS EXHIBITED THERE.  THE FILM DEPICTS A NUDE
COUPLE ENGAGED IN ULTIMATE SEXUAL ACTS.  THREE POLICE OFFICERS SAW PART
OF THE FILM.  APPARENTLY ON THE BASIS OF THEIR OBSERVATIONS, AN
ASSISTANT DISTRICT ATTORNEY OF NEW YORK COUNTY REQUESTED A JUDGE OF THE
NEW YORK CRIMINAL COURT TO SEE A PERFORMANCE.  ON JULY 31, 1969, THE
JUDGE, ACCOMPANIED BY A POLICE INSPECTOR, PURCHASED A TICKET AND SAW
THE ENTIRE FILM.  THERE WERE ABOUT 100 OTHER PERSONS IN THE AUDIENCE. 
NEITHER THE JUDGE NOR THE POLICE INSPECTOR RECALLED ANY SIGNS
RESTRICTING ADMISSION TO ADULTS.  /1/ 

AT THE END OF THE FILM, THE JUDGE, WITHOUT ANY DISCUSSIONS WITH THE
POLICE INSPECTOR, SIGNED A SEARCH WARRANT FOR THE SEIZURE OF THE FILM
AND THREE "JOHN DOE" WARRANTS FOR THE ARREST OF THE THEATER MANAGER,
THE PROJECTIONIST, AND THE TICKET TAKER, RESPECTIVELY.  NO ONE AT THE
THEATER WAS NOTIFIED OR CONSULTED PRIOR TO THE ISSUANCE OF THE
WARRANTS.  THE JUDGE SIGNED THE WARRANTS BECAUSE "IT WAS, AND IS MY
OPINION THAT THAT FILM IS OBSCENE, AND WAS OBSCENE AS I SAW IT THEN
UNDER THE DEFINITION OF OBSCENE, THAT IS (IN) . . . SECTION 235.00 OF
THE PENAL LAW."  EXHIBITION OF AN OBSCENE FILM VIOLATES NEW YORK PENAL
LAW ^ 235.05.  /2/ 

THE WARRANTS WERE IMMEDIATELY EXECUTED BY POLICE OFFICERS. 

[[HC486'(ORIGINAL DOCUMENT PAGE 486)'  THREE REELS, COMPOSING A SINGLE
COPY OF THE FILM, WERE SEIZED.  PETITIONER, THE THEATER MANAGER WAS
ARRESTED, AS WERE THE PROJECTIONIST AND THE TICKET TAKER.  /3/  NO
PRETRIAL MOTION WAS MADE FOR THE RETURN OF THE FILM OR FOR ITS
SUPPRESSION AS EVIDENCE.  NOR DID PETITIONER MAKE A PRETRIAL CLAIM THAT
SEIZURE OF THE FILM PREVENTED ITS EXHIBITION BY USE OF ANOTHER COPY,
AND THE RECORD DOES NOT CONCLUSIVELY INDICATE WHETHER SUCH A COPY WAS
AVAILABLE.  ON SEPTEMBER 16, 1969, 47 DAYS AFTER HIS ARREST AND THE
SEIZURE OF THE MOVIE, PETITIONER CAME TO TRIAL, A JURY HAVING BEEN
WAIVED, BEFORE THREE JUDGES OF THE NEW YORK CITY CRIMINAL COURT. 

AT TRIAL, THE PROSECUTION'S CASE RESTED ALMOST SOLELY ON TESTIMONY
CONCERNING THE ARRESTS AND THE SEIZURE OF THE FILM, TOGETHER WITH THE
INTRODUCTION INTO EVIDENCE OF THE SEIZED FILM ITSELF. 

[[HC487'(ORIGINAL DOCUMENT PAGE 487)'  THE FILM WAS EXHIBITED TO THE
TRIAL JUDGES.  THE DEFENSE OFFERED THREE "EXPERT" WITNESSES: AN AUTHOR,
A PROFESSOR OF SOCIOLOGY, AND A NEWSPAPER WRITER.  THESE WITNESSES
TESTIFIED THAT THE FILM HAD SOCIAL, LITERARY AND ARTISTIC IMPORTANCE IN
ILLUSTRATING "A GROWING AND IMPORTANT POINT OF VIEW ABOUT SEXUAL
BEHAVIOR" AS WELL AS PROVIDING OBSERVATIONS "ABOUT THE POLITICAL AND
SOCIAL SITUATION IN THIS COUNTRY TODAY.  . . ."  PETITIONER TESTIFIED
THAT THE THEATER'S EMPLOYEES WERE INSTRUCTED NOT TO ADMIT PERSONS WHO
APPEARED TO BE UNDER 18 YEARS OF AGE, UNLESS THEY "HAD IDENTIFICATION"
THAT THEY WERE 18.  PETITIONER ALSO TESTIFIED THAT THERE WAS A SIGN AT
THE BOX OFFICE STATING THAT "NO ONE UNDER 17 (WOULD BE) ADMITTED." 
BOTH AT THE END OF THE PROSECUTION'S CASE AND HIS OWN CASE, PETITIONER
MOVED TO DISMISS THE INDICTMENT ON THE GROUND THAT THE SEIZURE OF THE
FILM, WITHOUT A PRIOR ADVERSARY HEARING, VIOLATED THE FOURTEENTH
AMENDMENT. 

AT THE CLOSE OF TRIAL ON SEPTEMBER 17, 1969, PETITIONER WAS FOUND
GUILTY BY ALL THREE JUDGES OF VIOLATING NEW YORK PENAL LAW ^ 235.05. 
ON APPEAL, BOTH THE SUPREME COURT OF THE STATE OF NEW YORK, APPELLATE
TERM, AND THE COURT OF APPEALS OF THE STATE OF NEW YORK VIEWED THE FILM
AND AFFIRMED PETITIONER'S CONVICTION.  THE COURT OF APPEALS, RELYING ON
THIS COURT'S OPINION IN LEE ART THEATRE V. VIRGINIA, 392 U.S. 636, 637
(1968), HELD THAT AN ADVERSARY HEARING WAS NOT REQUIRED PRIOR TO
SEIZURE OF THE FILM, AND THAT THE JUDICIAL DETERMINATION WHICH OCCURRED
PRIOR TO SEIZURE IN THIS CASE WAS CONSTITUTIONALLY SUFFICIENT.  IN SO
HOLDING, THE COURT OF APPEALS EXPLICITLY DISAPPROVED, AS GOING "BEYOND
ANY REQUIREMENT IMPOSED ON STATE COURTS BY THE SUPREME COURT," ASTRO
CIMEMA CORP. V. MACKELL, 422 F.2D 293 (CA2 1970), AND BETHVIEW
AMUSEMENT CORP. V. CAHN, 416 F.2D 410 (CA2 1969), CERT. DENIED, 397
U.S. 920 (1970), CASES REQUIRING AN ADVERSARY HEARING PRIOR TO ANY
SEIZURE OF MOVIE FILM. 

[[HC488'(ORIGINAL DOCUMENT PAGE 488)'  29 N. Y. 2D 319, 323, 277 N.
E. 2D 651, 653 (1971). 

WE AFFIRM THIS HOLDING OF THE COURT OF APPEALS OF THE STATE OF NEW
YORK.  THIS COURT HAS NEVER HELD, OR EVEN IMPLIED, THAT THERE IS AN
ABSOLUTE FIRST OR FOURTEENTH AMENDMENT RIGHT TO A PRIOR ADVERSARY
HEARING APPLICABLE TO ALL CASES WHERE ALLEGEDLY OBSCENE MATERIAL IS
SEIZED.  SEE TIMES FILM CORP. V. CHICAGO, 365 U.S. 43 (1961); KINGSLEY
BOOKS, INC. V. BROWN, 354 U.S. 436, 440 - 442 (1957).  IN PARTICULAR,
THERE IS NO SUCH ABSOLUTE RIGHT WHERE ALLEGEDLY OBSCENE MATERIAL IS
SEIZED, PURSUANT TO A WARRANT, TO PRESERVE THE MATERIAL AS EVIDENCE IN
A CRIMINAL PROSECUTION.  IN LEE ART THEATRE V. VIRGINIA, THE COURT WENT
SO FAR AS TO SUGGEST THAT IT WAS AN OPEN QUESTION WHETHER A JUDGE NEED
"HAVE VEIWED THE MOTION PICTURE BEFORE ISSUING THE WARRANT."  ID., AT
637.  /4/  HERE THE JUDGE VIEWED THE ENTIRE FILM, AND, INDEED,
WITNESSED THE ALLEGED CRIMINAL ACT.  IT IS NOT CONTESTED THAT THE JUDGE
WAS A "NEUTRAL, DETACHED MAGISTRATE," THAT HE HAD A FULL OPPORTUNITY
FOR INDEPENDENT JUDICIAL DETERMINATION OF PROBABLE CAUSE PRIOR TO
ISSUING THE WARRANT, AND THAT HE WAS ABLE TO "FOCUS SEARCHINGLY ON THE
QUESTION OF OBSCENITY." 

[[HC489'(ORIGINAL DOCUMENT PAGE 489)'  SEE MARCUS V. SEARCH WARRANT,
367 U.S. 717, 731 - 733 (1961).  CF. COOLIDGE V. NEW HAMPSHIRE, 403
U.S. 443, 449 - 453 (1971); GIORDENELLO V. UNITED STATES, 357 U.S. 480,
485 - 486 (1958); JOHNSON V. UNITED STATES, 333 U.S. 10, 14 - 15
(1948). 

IN UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363 (1971),
AND FREEDMAN V. MARYLAND, 380 U.S. 51 (1965), WE HELD THAT "'BECAUSE
ONLY A JUDICIAL DETERMINATION IN AN ADVERSARY PROCEEDING ENSURES THE
NECESSARY SENSITIVITY TO FREEDOM OF EXPRESSION, ONLY A PROCEDURE
REQUIRING A JUDICIAL DETERMINATION SUFFICES TO IMPOSE A VALID FINAL
RESTRAINT.'"  402 U.S., AT 367, QUOTING 380 U.S., AT 58 (EMPHASIS
ADDED).  THOSE CASES INVOLVED, RESPECTIVELY, SEIZURE OF IMPORTED
MATERIALS BY FEDERAL CUSTOMS AGENTS AND STATE ADMINISTRATIVE LICENSING
OF MOTION PICTURES, BOTH CIVIL PROCEDURES DIRECTED AT ABSOLUTE
SUPPRESSION OF THE MATERIALS THEMSELVES.  EVEN IN THOSE CASES, WE DID
NOT REQUIRE THAT THE ADVERSARY PROCEEDING MUST TAKE PLACE PRIOR TO
INITIAL SEIZURE.  RATHER, IT WAS HELD THAT A JUDICIAL DETERMINATION
MUST OCCUR "PROMPTLY SO THAT ADMINISTRATIVE DELAY DOES NOT IN ITSELF
BECOME A FORM OF CENSORSHIP."  /5/  UNITED STATES V. THIRY-SEVEN
PHOTOGRAPHS, SUPRA, AT 367; FREEDMAN V. MARYLAND, SUPRA, AT 57 - 59. 

[[HC490'(ORIGINAL DOCUMENT PAGE 490)'  SEE BLOUNT V. RIZZI, 400 U.S.
410, 419 - 421 (1971); TEITEL FILM CORP. V. CUSACK, 390 U.S. 139, 141 -
142 (1968); BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58, 70 - 71
(1963). 

IN THIS CASE, OF COURSE, THE FILM WAS NOT SUBJECTED TO ANY FORM OF
"FINAL RESTRAINT," IN THE SENSE OF BEING ENJOINED FROM EXHIBITION OR
THREATENED WITH DESTRUCTION.  A COPY OF THE FILM WAS TEMPORARILY
DETAINED IN ORDER TO PRESERVE IT AS EVIDENCE.  THERE HAS BEEN NO
SHOWING THAT THE SEIZURE OF A COPY OF THE FILM PRECLUDED ITS CONTINUED
EXHIBITION.  NOR, IN THIS CASE, DID TEMPORARY RESTRAINT IN ITSELF
"BECOME A FORM OF CENSORSHIP," EVEN MAKING THE DOUBTFUL ASSUMPTION THAT
NO OTHER COPIES OF THE FILM EXISTED.  CF. UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, SUPRA, AT 367; FREEDMAN V. MARYLAND, SUPRA, AT 57 - 59.  A
JUDICIAL DETERMINATION OF OBSCENITY, FOLLOWING A FULLY ADVERSARY TRIAL,
OCCURRED WITHIN 48 DAYS OF THE TEMPORARY SEIZURE.  PETITIONER MADE NO
PRETRIAL MOTIONS SEEKING RETURN OF THE FILM OR CHALLENGING ITS SEIZURE,
NOR DID HE REQUEST EXPEDITED JUDICIAL CONSIDERATION OF THE OBSCENITY
ISSUE, SO IT IS ENTIRELY POSSIBLE THAT A PROMPT JUDICIAL DETERMINATION
OF THE OBSCENITY ISSUE IN AN ADVERSARY PROCEEDING COULD HAVE BEEN
OBTAINED IF PETITIONER HAD DESIRED.  /6/  ALTHOUGH WE HAVE REFRAINED
FROM ESTABLISHING RIGID, SPECIFIC TIME DEADLINES IN PROCEEDINGS
INVOLVING SEIZURE OF ALLEGEDLY OBSCENE MATERIAL, WE HAVE DEFINITELY
EXCLUDED FROM ANY CONSIDERATION OF "PROMPTNESS" THOSE DELAYS CAUSED BY
THE CHOICE OF THE DEFENDANT.  SEE UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, SUPRA, AT 373 - 374.  IN THIS CASE, THE BARRIER TO A
PROMPT JUDICIAL DETERMINATION OF THE OBSCENITY ISSUE IN AN ADVERSARY
PROCEEDING WAS NOT THE STATE, BUT PETITIONER'S DECISION TO WAIVE
PRETRIAL MOTIONS AND RESERVE THE OBSCENITY ISSUE FOR TRIAL. 

[[HC491'(ORIGINAL DOCUMENT PAGE 491)'  CF. KINGSLEY BOOKS, INC. V.
BROWN, 354 U.S., AT 439. 

PETITIONER'S RELIANCE ON THE COURT'S DECISIONS, IN A QUANTITY OF
BOOKS V. KANSAS, 378 U.S. 205 (1964), AND MARCUS V. SEARCH WARRANT, 367
U.S. 717 (1961), IS MISPLACED.  THOSE CASES CONCERNED THE SEIZURE OF
LARGE QUANTITIES OF BOOKS FOR THE SOLE PURPOSE OF THEIR DESTRUCTION,
/7/  AND THIS COURT HELD THAT, IN THOSE CIRCUMSTANCES, A PRIOR JUDICIAL
DETERMINATION OF OBSCENITY IN AN ADVERSARY PROCEEDING WAS REQUIRED TO
AVOID "DANGER OF ABRIDGMENT OF THE RIGHT OF THE PUBLIC IN A FREE
SOCIETY TO UNOBSTRUCTED CIRCULATION OF NONOBSCENE BOOKS."  A QUANTITY
OF BOOKS V. KANSAS, SUPRA, AT 213.  WE DO NOT DISTURB THIS HOLDING. 
COURTS WILL SCRUTINIZE ANY LARGE-SCALE SEIZURE OF BOOKS, FILMS, OR
OTHER MATERIALS PRESUMPTIVELY PROTECTED UNDER THE FIRST AMENDMENT TO BE
CERTAIN THAT THE REQUIRMENTS OF A QUANTITY OF BOOKS AND MARCUS ARE
FULLY MET.  "'ANY SYSTEM OF PRIOR RESTRAINTS OF EXPRESSION COMES TO
THIS COURT BEARING A HEAVY PRESUMPTION AGAINST ITS CONSTITUTIONAL
VALIDITY.'"  NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713, 714
(1971) QUOTING BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S., AT 70;
ORGANIZATION FOR A BETTER AUSTIN V. KEEFE, 402 U.S. 415, 419 (1971);
CARROLL V. PRINCESS ANNE, 393 U.S. 175, 181 (1968). 

[[HC492'(ORIGINAL DOCUMENT PAGE 492)'  SEE NEAR V. MINNESOTA, 283
U.S. 697 (1931). 

BUT SEIZING FILMS TO DESTROY THEM OR TO BLOCK THEIR DISTRIBUTION OR
EXHIBITION IS A VERY DIFFERENT MATTER FROM SEIZING A SINGLE COPY OF A
FILM FOR THE BONA FIDE PRUPOSE OF PRESERVING IT AS EVIDENCE IN A
CRIMINAL PROCEEDING, PARTICULARLY WHERE, AS HERE, THERE IS NO SHOWING
OR PRETRIAL CLAIM THAT THE SEIZURE OF THE COPY PREVENTED CONTINUING
EXHIBITION OF THE FILM.  /8/  IF SUCH A SEIZURE IS PURSUANT TO A
WARRANT, ISSUED AFTER A DETERMINATION OF PROBABLE CAUSE BY A NEUTRAL
MAGISTRATE, AND FOLLOWING THE SEIZURE, A PROMPT /9/  JUDICIAL
DETERMINATION OF THE OBSCENITY ISSUE IN AN ADVERSARY PROCEEDING IS
AVAILABLE AT THE REQUEST OF ANY INTERESTED PARTY, THE SEIZURE IS
CONSTITUTIONALLY PERMISSIBLE.  IN ADDITION, ON A SHOWING TO THE TRIAL
COURT THAT OTHER COPIES OF THE FILM ARE NOT AVAILABLE TO EXHIBITOR, THE
COURT SHOULD PERMIT THE SEIZED FILM TO BE COPIED SO THAT SHOWING CAN BE
CONTINUED PENDING A JUDICIAL DETERMINATION OF THE OBSCENITY ISSUE IN AN
ADVERSARY PROCEEDING.  /10/ 

[[HC493'(ORIGINAL DOCUMENT PAGE 493)'  OTHERWISE, THE FILM MUST BE
RETURNED.  /11/ 

WITH SUCH SAFEGUARDS, WE DO NOT PERCEIVE THAT AN ADVERSARY HEARING
PRIOR TO A SEIZURE BY LAWFUL WARRANT WOULD MATERIALLY INCREASE FIRST
AMENDMENT PROTECTION.  CF. CARROLL V. PRINCESS ANNE, SUPRA, AT 183 -
184.  THE NECESSITY FOR A PRIOR JUDICIAL DETERMINATION OF PROBABLE
CAUSE WILL PROTECT AGAINST GROSS ABUSES, WHILE THE AVAILABILITY OF A
PROMPT JUDICIAL DETERMINATION IN AN ADVERSARY PROCEEDING FOLLOWING THE
SEIZURE ASSURES THAT DIFFICULT MARGINAL CASES WILL BE FULLY CONSIDERED
IN LIGHT OF FIRST AMENDMENT GUARANTEES, WITH ONLY A MINIMAL
INTERFERENCE WITH PUBLIC CIRCULATION PENDING LITIGATION.  THE PROCEDURE
USED BY NEW YORK IN THIS CASE PROVIDES SUCH FIRST AMENDMENT SAFEGUARDS,
WHILE ALSO SERVING THE PUBLIC INTERESTS IN FULL AND FAIR PROSECUTION
FOR OBSCENITY OFFENSES.  COUNSEL FOR NEW YORK HAS ARGUED THAT MOVIE
FILMS TEND TO "DISAPPEAR" IF ADVERSARY HEARINGS ARE AFFORDED PRIOR TO
SEIZURE.  WE TAKE JUDICIAL NOTICE THAT SUCH FILMS MAY BE COMPACT,
READILY TRANSPORTED FOR EXHIBITION IN OTHER JURISDICTIONS, EASILY
DESTRUCTIBLE, AND PARTICULARLY SUSCEPTIBLE TO ALTERATION BY CUTTING AND
SPLICING CRITICAL PARTS OF FILM. 

PETITIONER ALSO CHALLENGED HIS CONVICTION ON SUBSTANTIVE AS OPPOSED
TO PROCEDURAL, GROUND ARGUING THAT HE WAS CONVICTED UNDER STANDARDS OF
OBSCENITY BOTH OVERBROAD AND UNCONSTITUTIONALLY VAGUE. 

[[HC494'(ORIGINAL DOCUMENT PAGE 494)'  IN ADDITION, PETITIONER
ARGUES THAT FILMS SHOWN ONLY TO CONSENTING ADULTS IN PRIVATE HAVE A
PARTICULAR CLAIM TO CONSTITUTIONAL PROTECTION.  IN MILLER V.
CALIFORNIA, ANTE, P. 15, AND PARIS ADULT THEATRE I V. SLATON, ANTE, P.
49, DECIDED JUNE 21, 1973, WE DEALT WITH THESE SUBSTANTIVE ISSUES.  A
MAJORITY OF THIS COURT HAS NOW APPROVED GUIDELINES FOR THE LAWFUL STATE
REGULATION OF OBSCENE MATERIAL.  THE JUDGMENT OF THE COURT OF APPEALS
OF THE STATE OF NEW YORK IS THEREFORE VACATED AND THIS CASE REMANDED
FOR THE SOLE PURPOSE OF AFFORDING THE NEW YORK COURTS AN OPPORTUNITY TO
RECONSIDER THESE SUBSTANTIVE ISSUES IN LIGHT OF MILLER AND PARIS ADULT
THEATRE I. SEE UNITED STATES V. 12 200-FT REELS OF FILM, ANTE, P. 130
N. 7.                    VACATED AND REMANDED. 

/1/  THE PRESECUTION PRESENTED NO EVIDENCE THAT JUVENILES WERE
ACTUALLY PRESENT IN THE THEATER.     /2/  NEW YORK PENAL LAW ^ 235.05
READS IN RELEVANT PART: 

"A PERSON IS GUILTY OF OBSCENITY WHEN, KNOWING ITS CONTENT AND
CHARACTER, HE: 

"1.  PROMOTES, OR POSSESSES WITH INTENT TO PROMOTE, ANY OBSCENE
MATERIAL; OR 

"2.  PRODUCES, PRESENTS OR DIRECTS AN OBSCENE PERFORMANCE OR
PARTICIPATES IN A PORTION THEREOF WHICH IS OBSCENE OR WHICH CONTRIBUTES
TO ITS OBSCENITY. 

"OBSCENITY IS A CLASS A MISDEMEANOR." 

THE TERMS USED IN ^ 235.05 ARE DEFINED BY NEW YORK PENAL LAW ^
235.00, WHICH READS IN RELEVANT PART: 

"THE FOLLOWING DEFINITIONS ARE APPLICABLE TO SECTIONS 235.05, 235.10
AND 235.15: 

"1.  'OBSCENE.'  ANY MATERIAL OR PERFORMANCE IS 'OBSCENE' IF (A)
CONSIDERED AS A WHOLE, ITS PREDOMINANT APPEAL IS TO PRURIENT, SHAMEFUL
OR MORBID INTEREST IN NUDITY, SEX, EXCRETION, SADISM OR MASOCHISM, AND
(B) IT GOES SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN
DESCRIBING OR REPRESENTING SUCH MATTERS, AND (C) IT IS UTTERLY WITHOUT
REDEEMING SOCIAL VALUE.  PREDOMINANT APPEAL SHALL BE JUDGED WITH
REFERENCE TO ORDINARY ADULTS UNLESS IT APPEARS FROM THE CHARACTER OF
THE MATERIAL OR THE CIRCUMSTANCES OF ITS DISSEMINATION TO BE DESIGNED
FOR CHILDREN OR OTHER SPECIALLY SUSCEPTIBLE AUDIENCE. 

"2.  'MATERIAL' MEANS ANYTHING TANGIBLE WHICH IS CAPABLE OF BEING
USED OR ADAPTED TO AROUSE INTEREST, WHETHER THROUGH THE MEDIUM OF
READING, OBSERVATION, SOUND OR IN ANY OTHER MANNER. 

"3.  'PERFORMANCE' MEANS ANY PLAY, MOTION PICTURE, DANCE OR OTHER
EXHIBITION PERFORMED BEFORE AN AUDIENCE. 

"4.  'PROMOTE' MEANS TO MANUFACTURE, ISSUE, SELL, GIVE, PROVIDE,
LEND, MAIL, DELIVER, TRANSFER, TRANSMUTE, PUBLISH, DISTRIBUTE,
CIRCULATE, DISSEMINATE, PRESENT, EXHIBIT OR ADVERTISE, OR TO OFFER OR
AGREE TO DO THE SAME." 

/3/  THE CASES AGAINST THE TICKET TAKER AND PROJECTIONIST WERE
DISMISSED ON THE MOTION OF THE PROSECUTOR. 

/4/  "IT IS TRUE THAT A JUDGE MAY READ A COPY OF A BOOK IN COURTROOM
OR CHAMBERS BUT NOT AS EASILY ARRANGE TO SEE A MOTION PICTURE THERE. 
HOWEVER, WE NEED NOT DECIDE IN THIS CASE WHETHER THE JUSTICE OF THE
PEACE SHOULD HAVE VIEWED THE MOTION PICTURE BEFORE ISSUING THE
WARRANT.  THE PROCEDURE UNDER WHICH THE WARRANT ISSUED SOLELY UPON THE
CONCLUSORY ASSERTIONS OF THE POLICE OFFICER WITHOUT ANY INQUIRY BY THE
JUSTICE OF THE PEACE INTO THE FACTUAL BASIS FOR THE OFFICER'S
CONCLUSIONS WAS NOT A PROCEDURE 'DESIGNED TO FOCUS SEARCHINGLY ON THE
QUESTION OF OBSCENITY,' (MARCUS V. SEARCH WARRANT, 367 U.S. 717), AT
732, AND THEREFORE FELL SHORT OF CONSTITUTIONAL REQUIREMENTS DEMANDING
NECESSARY SENSITIVITY TO FREEDOM OF EXPRESSION.  SEE FREEDMAN V.
MARYLAND, 380 U.S. 51, 58 - 59."  LEE ART THEATRE V. VIRGINIA, 392 U.S.
636, 637 (1968). 

/5/  WE FURTHER HELD "(1) THERE MUST BE ASSURANCE, 'BY STATUTE OR
AUTHORITATIVE JUDICIAL CONSTRUCTION, THAT THE CENSOR WILL, WITHIN A
SPECIFIED BRIEF PERIOD, EITHER ISSUE A LICENSE OR GO TO COURT TO
RESTRAIN SHOWING THE FILM'; (2) '(ANY RESTRAINT IMPOSED IN ADVANCE OF A
FINAL JUDICIAL DETERMINATION ON THE MERITS MUST SIMILARLY BE LIMITED TO
PRESERVATION OF THE STATUS QUO FOR THE SHORTEST FIXED PERIOD COMPATIBLE
WITH SOUND JUDICIAL RESOLUTION'; AND (3) 'THE PROCEDURE MUST ALSO
ASSURE A PROMPT FINAL JUDICIAL DECISION' TO MINIMIZE THE IMPACT OF
POSSIBLY ERRONEOUS ADMINISTRATIVE ACTION.  (FREEDMAN V. MARYLAND, 380
U.S.), AT 58 - 59."  UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402
U.S. 363, 367 (1971). 

/6/  THE STATE OF NEW YORK HAS REPRESENTED THAT IT STANDS READY TO
GRANT "IMMEDIATE" ADVERSARY HEARINGS ON PRETRIAL MOTIONS CHALLENGING
SEIZURES OF MATERIAL ARGUABLY PROTECTED BY THE FIRST AMENDMENT.  NO
SUCH MOTION WAS MADE BY PETITIONER. 

/7/  IN PARTICULAR, MARCUS INVOLVED SEIZURE OF 11,000 COPIES OF 280
PUBLICATIONS BY POLICE OFFICERS ACTING PURSUANT TO A GENERAL WARRANT. 
367 U.S., AT 723.  UNLIKE THIS CASE, THERE WAS NO INDEPENDENT JUDICIAL
DETERMINATION OF OBSCENITY BY A NEUTRAL, DETACHED MAGISTRATE, NOR WERE
THE SEIZURES MADE TO PRESERVE EVIDENCE FOR A CRIMINAL PROSECUTION. 
ID., AT 732.  THE SOLE PURPOSE WAS TO SEIZE THE ARTICLES AS CONTRABAND
AND TO CAUSE THEM "TO BE PUBLICLY DESTROYED, BY BURNING OR OTHERWISE." 
ID., AT 721 N. 6.  IN A QUANTITY OF BOOKS V. KANSAS, 378 U.S. 205
(1964), 1,715 COPIES OF 31 PUBLICATIONS WERE SEIZED BY A COUNTY
SHERIFF, ALSO WITHOUT ANY PRIOR JUDICIAL DETERMINATION OF OBSCENITY
AND, AGAIN, FOR THE SOLE PURPOSE OF DESTROYING THE PUBLICATIONS AS
CONTRABAND.  ID., AT 206 - 209. 

/8/  IN MISHKIN V. NEW YORK, 383 U.S. 502 (1966), THIS COURT REFUSED
TO REVIEW THE LEGALITY OF A SEIZURE OF BOOKS CHALLENGED UNDER A
QUANTITY OF BOOKS, SUPRA, PRIMARILY BECAUSE THE RECORD DID NOT REVEAL
THE NUMBER OF BOOKS SEIZED AS EVIDENCE UNDER THE WARRANT OR "WHETHER
THE BOOKS SEIZED . . . WERE ON THE THRESHOLD OF DISSEMINATION."  383
U.S., AT 513.  IF A QUANTITY OF BOOKS APPLIED TO ALL SEIZURES OF
OBSCENE MATERIAL, THERE WOULD HAVE BEEN NO NEED FOR THE COURT TO
ABSTAIN FROM REVIEW IN MISHKIN, SINCE THE PARTIES HAD CONCEDED THAT
THERE WAS NO PRIOR ADVERSARY HEARING.  THIS IS NOT TO SAY THAT MULTIPLE
COPIES OF A SINGLE FILM MAY BE SEIZED AS PURELY CUMULATIVE EVIDENCE, OR
THAT A STATE MAY CIRCUMVENT MARCUS OR A QUANTITY OF BOOKS BY
INCORPORATING, AS AN ELEMENT OF A CRIMINAL OFFENSE, THE NUMBER OF
COPIES OF THE OBSCENE MATERIALS INVOLVED. 

/9/  BY "PROMPT," WE MEAN THE SHORTEST PERIOD "COMPATIBLE WITH SOUND
JUDICIAL RESOLUTION."  SEE UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS,
402 U.S., AT 367; BLOUNT V. RIZZI, 400 U.S. 410, 417 (1971); FREEDMAN
V. MARYLAND, 380 U.S., AT 58 - 59. 

/10/  AT ORAL ARGUMENT, COUNSEL FOR PETITIONER AGREED THAT A PROMPT
OPPORTUNITY TO OBTAIN A COPY FROM THE SEIZED FILM AT "AN INDEPENDENT
LAB UNDER CIRCUMSTANCES THAT WOULD ASSURE THAT THERE WAS NO TAMPERING
WITH THE FILM" WITH THE ORIGINAL RETURNED WITHIN "24 HOURS" WOULD
"SATISFY" HIS "FIRST AMENDMENT POSITION."  TR. OF ORAL ARG. 28. 
PETITIONER NEVER REQUESTED SUCH A COPY BELOW. 

/11/  FAILURE TO PERMIT COPYING OF SEIZED MATERIAL ADVERSELY AFFECTS
FIRST AMENDMENT INTERESTS; PROMPT COPYING OF SEIZED MATERIAL SHOULD BE
PERMITTED.  IF COPYING IS DENIED, RETURN OF THE SEIZED MATERIAL SHOULD
BE REQUIRED.  ON THE OTHER HAND, VIOLATIONS OF FOURTH AMENDMENT
STANDARDS WOULD REQUIRE THAT THE SEIZED MATERIAL BE EXCLUDED FROM
EVIDENCE.  SEE ROADEN V. KENTUCKY, POST, P. 496; LEE ART THEATRE V.
VIRGINIA, 392 U.S., AT 637.  CR. MAPP V. OHIO, 367 U.S. 643 (1961). 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING.  /1/ 

I WOULD REVERSE OUTRIGHT IN EACH OF THESE CASES AS, IN MY VIEW, THE
UNDERLYING OBSCENITY STATUTE VIOLATES THE FIRST AMENDMENT FOR THE
REASONS STATED IN MY DISSENTING OPINIONS IN MILLER V. CALIFORNIA, ANTE,
P. 37, AND UNITED STATES V. 12 200-FT. REELS OF FILM, ANTE, P. 130. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

WE GRANTED CERTIORARI TO CONSIDER THE HOLDING OF THE COURT OF
APPEALS OF NEW YORK THAT THE CONSTITUTION DOES NOT REQUIRE AN ADVERSARY
HEARING ON OBSCENITY PRIOR TO A JUDGE'S ISSUANCE OF WARRANTS FOR THE
SEIZURE OF A FILM AND FOR THE ARREST OF THE FILM'S EXHIBITOR. 

[[HC95'(ORIGINAL DOCUMENT PAGE 95)'  29 N.Y. 2D 319, 277 N.E. 2D 651
(1971).  THE STATUTE UNDER WHICH THE PROSECUTION WAS BROUGHT /2/  IS,
IN MY VIEW, UNCONSTITUTIONALLY OVERBROAD AND THEREFORE INVALID ON ITS
FACE.  SEE MY DISSENT IN PARTS ADULT THEATRE I V. SLATON, ANTE, P. 73. 
I WOULD THEREFORE REVERSE THE JUDGEMENT OF THE COURT OF APPEALS AND
REMAND THE CASE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH MY
DISSENTING OPINION IN SLATON.  IN THAT CIRCUMSTANCE, I HAVE NO OCCASION
TO CONSIDER WHETHER, ASSUMING THAT A PROSECUTION COULD PROPERLY BE
BROUGHT, THE SEIZURE OF THE FILM AT ISSUE HERE WAS CONSTITUTIONAL. 

[[DFN 

/1/  THIS OPINION APPLIED ALSO IN NO. 71 - 1134, ROADEN V. KENTUCKY,
POST, P. 496. 

/2/  N.Y. PENAL LAW ^ 235.05: 

"A PERSON IS GUILTY OF OBSCENITY WHEN, KNOWING ITS CONTENT AND
CHARACTER, HE: 

"1.  PROMOTES, OR POSSESSES WITH INTENT TO PROMOTE, ANY OBSCENE
MATERIAL; OR 

"2.  PRODUCES, PRESENTS OR DIRECTS AN OBSCENE PERFORMANCE OR
PARTICIPATES IN A PORTION THEREOF WHICH IS OBSCENE OR WHICH CONTRIBUTES
TO ITS OBSCENITY." 

IRVING ANOLIK ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

LEWIS R. FRIEDMAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE FRANK S. HOGAN AND MICHAEL R. JUVILER. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF ASSISTANT
ATTORNEY GENERAL, DORIS H. MAIER AND EDWARD P. O'BRIEN, ASSISTANT
ATTORNEYS GENERAL, AND ROBERT R. GRANUCCI AND CLIFFORD K. THOMPSON,
JR., DEPUTY ATTORNEYS GENERAL, FOR THE STATE OF CALIFORNIA; AND BY
CHARLES H. KEATING, JR., PRO SE, RICHARD M. BERTSCH, JAMES J. CLANCY,
AND ALBERT S. JOHNSTON III FOR CHARLES H. KEATING, JR.
..END :

















ROADEN V. KENTUCKY 413 U.S. 496 


       CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY 

    NO. 71 - 1134.  ARGUED NOVEMBER 14, 1972--DECIDED JUNE 25,

  1973; 473 S. W. 2D 814, REVERSED AND REMANDED. 


    A COUNTY SHERIFF VIEWED A SEXUALLY EXPLICIT FILM AT A LOCAL

  DRIVE-IN THEATER.  AT THE CONCLUSION OF THE SHOWING, HE ARRESTED

  PETITIONER, THE THEATER MANAGER, FOR EXHIBITING AN OBSCENE FILM

  IN VIOLATION OF KENTUCKY LAW, AND SEIZED, WITHOUT A WARRANT, ONE

  COPY OF THE FILM FOR USE AS EVIDENCE.  THERE WAS NO PRIOR

  JUDICIAL DETERMINATION OF OBSCENITY.  PETITIONER'S MOTION TO

  SUPPRESS THE FILM AS EVIDENCE ON THE GROUND OF ILLEGAL SEIZURE

  WAS DENIED, AND HE WAS CONVICTED.  THE KENTUCKY COURT OF APPEALS

  AFFIRMED, HOLDING THAT THE CONCEDEDLY OBSCENE FILM WAS PROPERLY

  SEIZED INCIDENT TO A LAWFUL ARREST.  HELD:  THE SEIZURE BY THE

  SHERIFF, WITHOUT THE AUTHORITY OF A CONSTITUTIONALLY SUFFICIENT

  WARRANT, WAS UNREASONABLE UNDER FOURTH AND FOURTEENTH AMENDMENT

  STANDARDS.  THE SEIZURE IS NOT UNREASONABLE SIMPLY BECAUSE IT

  WOULD HAVE BEEN EASY TO SECURE A WARRANT, BUT RATHER BECAUSE

  PRIOR RESTRAINT OF THE RIGHT OF EXPRESSION, WHETHER BY BOOKS OR

  FILM, CALLS FOR A HIGHER HURDLE OF REASONABLENESS.  LEE ART

  THEATRE V. VIRGINIA, 392 U.S. 636; MARCUS V. SEARCH WARRANT, 367

  U.S. 717.  THIS CASE DOES NOT PRESENT AN EXIGENT CIRCUMSTANCE IN

  WHICH POLICE ACTION MUST BE "NOW OR NEVER"  TO PRESERVE THE

  EVIDENCE OF THE CRIME, AND WHERE IT MAY BE REASONABLE TO PERMIT

  ACTION WITHOUT PRIOR JUDICIAL APPROVAL.  PP. 501 - 506. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BRENNAN, J., FILED AN
OPINION CONCURRING IN THE JUDGMENT IN WHICH STEWART AND MARSHALL, JJ.,
JOINED, POST, P. 507.  DOUGLAS, J., FILED A DISSENTING OPINION, ANTE,
P. 494. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

[[HC497'(ORIGINAL DOCUMENT PAGE 497)' 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER THE SEIZURE OF
ALLEGEDLY OBSCENE MATERIAL, CONTEMPORANEOUS WITH AND AS AN INCIDENT TO
AN ARREST FOR THE PUBLIC EXHIBITION OF SUCH MATERIAL IN A COMMERCIAL
THEATER MAY BE ACCOMPLISHED WITHOUT A WARRANT. 

ON SEPTEMBER 29, 1970, THE SHERIFF OF PULASKI COUNTY, KENTUCKY,
ACCOMPANIED BY THE DISTRICT PROSECUTOR, PURCHASED TICKETS TO A LOCAL
DRIVE-IN THEATER.  THERE THE SHERIFF OBSERVED, IN ITS ENTIRETY, A FILM
CALLED "CINDY AND DONNA" AND CONCLUDED THAT IT WAS OBSCENE AND THAT ITS
EXHIBITION WAS IN VIOLATION OF STATE STATUTE.  A SUBSTANTIAL PART OF
THE FILM WAS ALSO OBSERVED BY A DEPUTY SHERIFF FROM A VANTAGE POINT ON
THE ROAD OUTSIDE THE THEATER.  SINCE THE PETITIONER CONCEDED THE
OBSCENITY OF THE FILM AT TRIAL, THAT ISSUE IS NOT BEFORE US FOR
DECISION.  /1/ 

THE SHERIFF, AT THE CONCLUSION OF THE FILM, PROCEEDED TO THE
PROJECTION BOOTH, WHERE HE ARRESTED PETITIONER, THE MANAGER OF THE
THEATER, ON THE CHARGE OF EXHIBITING AN OBSCENE FILM TO THE PUBLIC
CONTRARY TO KY. REV. STAT. ^ 436.101 (1973).  /2/  CONCURRENT WITH THE
ARREST, THE SHERIFF SEIZED ONE COPY OF THE FILM FOR USE AS EVIDENCE. 

[[HC498'(ORIGINAL DOCUMENT PAGE 498)'  IT IS UNCONTESTED: (A) THAT
THE SHERIFF HAD NO WARRANT WHEN HE MADE THE ARREST AND SEIZURE, (B)
THAT THERE HAD BEEN NO PRIOR DETERMINATION BY A JUDICIAL OFFICER ON THE
QUESTION OF OBSCENITY, AND (C) THAT THE ARREST WAS BASED SOLELY ON THE
SHERIFF'S OBSERVING THE EXHIBITION OF THE FILM. 

[[HC499'(ORIGINAL DOCUMENT PAGE 499)' 

ON SEPTEMBER 30, 1970, THE DAY FOLLOWING THE ARREST OF PETITIONER
AND THE SEIZURE OF THE FILM, THE GRAND JURY OF PULASKI COUNTY HEARD
TESTIMONY CONCERNING THE SCENES AND CONTENT OF THE FILM AND RETURNED AN
INDICTMENT CHARGING PETITIONER WITH EXHIBITING AN OBSCENE FILM IN
VIOLATION OF KY. REV. STAT. ^ 436.101.  ON OCTOBER 3, 1970, PETITIONER
ENTERED A PLEA OF NOT GUILTY IN THE PULASKI CIRCUIT COURT, AND THE CASE
WAS SET FOR TRIAL.  ON OCTOBER 12, 1970, PETITIONER FILED A MOTION TO
SUPPRESS THE FILM AS EVIDENCE AND TO DISMISS THE INDICTMENT.  THE
MOTION WAS PREDICATED UPON THE GROUND THAT THE FILM WAS "IMPROPERLY,
UNLAWFULLY AND ILLEGALLY SEIZED, CONTRARY TO . . . THE LAWS OF THE
LAND."  FOUR DAYS LATER, ON OCTOBER 16, 1970, THE PULASKI CIRCUIT COURT
HEARD ARGUMENT AT AN ADVERSARY HEARING ON PETITIONER'S MOTION.  THE
MOTION WAS DENIED. 

PETITIONER'S TRIAL BEGAN ON OCTOBER 20, 1970.  THE ARRESTING SHERIFF
AND ONE OF HIS DEPUTIES WERE THE ONLY WITNESSES FOR THE PROSECUTION. 
THE SHERIFF TESTIFIED THAT THE FILM DISPLAYED NUDITY AND "INTIMATE LOVE
SCENES."  THE SHERIFF FURTHER TESTIFIED THAT, UPON VIEWING THE FILM, HE
DETERMINED THAT IT WAS OBSCENE AND THAT ITS EXHIBITION VIOLATED STATE
LAW. 

[[HC500'(ORIGINAL DOCUMENT PAGE 500)' HE THEREFORE ARRESTED
PETITIONER.  TOGETHER WITH THE TESTIMONY OF THE SHERIFF, THE FILM
ITSELF WAS INTRODUCED INTO EVIDENCE.  PETITIONER'S MOTION TO SUPPRESS
THE FILM WAS RENEWED, AND AGAIN OVERRULED.  THE SHERIFF'S DEPUTY TOOK
THE STAND AND TESTIFIED THAT HE HAD VIEWED THE FINAL 30 MINUTES OF THE
FILM FROM A VANTAGE POINT ON A PUBLIC ROAD OUTSIDE THE THEATER. 
FOLLOWING THIS TESTIMONY, THE JURY WAS PERMITTED TO SEE THE FILM. 

PETITIONER TESTIFIED IN HIS OWN BEHALF.  HE STATED THAT, TO HIS
KNOWLEDGE, NO JUVENILES HAD BEEN ADMITTED TO SEE THE FILM, AND THAT HE
HAD RECEIVED NO COMPLAINTS ABOUT THE FILM UNTIL IT WAS SEIZED BY THE
SHERIFF.  AT THE CLOSE OF HIS TESTIMONY, THE JURY FOUND PETITIONER
GUILTY AS CHARGED.  THE JURY RENDERED BOTH A GENERAL VERDICT OF GUILTY
AND A SPECIAL VERDICT THAT THE FILM WAS OBSCENE, AS PROVIDED BY KY.
REV. STAT. ^ 436.101 (8). 

ON APPEAL, THE COURT OF APPEALS OF KENTUCKY AFFIRMED PETITIONER'S
CONVICTION.  THE COURT OF APPEALS FIRST EMPHASIZED THAT "(IT WAS
CONCEDED BY (PETITIONER'S) COUNSEL IN CLOSING ARGUMENT TO THE JURY THAT
THE FILM IS OBSCENE.  NO ISSUE IS PRESENTED ON APPEAL AS TO THE
OBSCENITY OF THE MATERIAL."  473 S. W. 2D 814, 815 (1971).  THE COURT
OF APPEALS THEN HELD THAT THE FILM WAS PROPERLY SEIZED INCIDENT TO A
LAWFUL ARREST, DISTINGUISHING THE HOLDINGS OF THIS COURT IN A QUANTITY
OF BOOKS V. KANSAS, 378 U.S. 205 (1964), AND MARCUS V. SEARCH WARRANT,
367 U.S. 717 (1961), ON THE GROUND THAT THOSE DECISIONS RELATED TO
SEIZURE OF ALLEGEDLY OBSCENE MATERIALS "FOR DESTRUCTION OR SUPPRESSION,
NOT TO SEIZURES INCIDENT TO AN ARREST FOR POSSESSING, SELLING, OR
EXHIBITING A SPECIFIC ITEM."  473 S. W. 2D, AT 815.  IT ALSO
DISTINGUISHED LEE ART THEATRE V. VIRGINIA, 392 U.S. 636 (1968), ON THE
GROUNDS THAT THERE FILM "HAD BEEN SEIZED PURSUANT TO A (DEFECTIVE)
SEARCH WARRANT, NOT INCIDENT TO AN ARREST."  473 S. W. 2D, AT 816.  THE
COURT OF APPEALS RELIED ON A DECISION OF A FEDERAL THREE-JUDGE COURT IN
HOSEY V. CITY OF JACKSON, 309 F.SUPP.  527 (SD MISS.  1970), WHICH
CONCLUDED THAT: 

"(SEIZURE OF AN ALLEGEDLY OBSCENE FILM AS AN INCIDENT TO LAWFUL
ARRESTS FOR A CRIME COMMITTED IN THE PRESENCE OF THE ARRESTING
OFFICERS, I.E., THE PUBLIC SHOWING OF SUCH FILM, DOES NOT EXCEED
CONSTITUTIONAL BOUNDS IN THE ABSENCE OF A PRIOR JUDICIAL HEARING ON THE
QUESTION OF ITS OBSCENITY."  ID., AT 533. 

[[HC501'(ORIGINAL DOCUMENT PAGE 501)' 

THE COURT OF APPEALS SPECIFICALLY DECLINED TO FOLLOW A DECISION BY
ANOTHER FEDERAL THREE-JUDGE COURT IN LEDESMA V. PEREZ, 304 F.SUPP.  662
(ED LA. 1969), WHICH HELD UNCONSTITUTIONAL THE SEIZURE OF ALLEGEDLY
OBSCENE MATERIAL INCIDENT TO AN ARREST, BUT WITHOUT A WARRANT OR A
PRIOR ADVERSARY HEARING.  /3/

        I 

THE FOURTH AMENDMENT PROSCRIPTION AGAINST "UNREASONABLE . . .
SEIZURES," APPLICABLE TO THE STATES THROUGH THE FOURTEENTH AMDNEMENT,
MUST NOT BE READ IN A VACUUM.  A SEIZURE REASONABLE AS TO ONE TYPE OF
MATERIAL IN ONE SETTING MAY BE UNREASONABLE IN A DIFFERENT SETTING OR
WITH RESPECT TO ANOTHER KIND OF MATERIAL.  CF. COOLIDGE V. NEW
HAMPSHIRE, 403 U.S. 443, 471 - 472 (1971); ID., AT 509 - 510 (BLACK,
J., CONCURRING AND DISSENTING); ID., AT 512 - 513 (WHITE, J.,
CONCURRING AND DISSENTING).  THE QUESTION TO BE RESOLVED IS WHETHER THE
SEIZURE OF THE FILM WITHOUT A WARRANT WAS UNREASONABLE UNDER FOURTH
AMENDMENT STANDARDS AND, IF SO, WHETHER THE FILM WAS THEREFORE
INADMISSIBLE AT THE TRIAL. 

[[HC502'(ORIGINAL DOCUMENT PAGE 502)'  THE SEIZURE OF INSTRUMENTS OF
A CRIME, SUCH AS A PISTOL OR A KNIFE, OR "CONTRABAND OR STOLEN GOODS OR
OBJECTS DANGEROUS IN THEMSELVES,"  ID., AT 472, ARE TO BE DISTINGUISHED
FROM QUANTITIES OF BOOKS AND MOVIE FILMS WHEN A COURT APPRAISES THE
REASONABLENESS OF THE SEIZURE UNDER FOURTH OR FOURTEENTH AMENDMENT
STANDARDS. 

MARCUS V. SEARCH WARRANT, SUPRA, HELD THAT A WARRANT FOR THE SEIZURE
OF ALLEGEDLY OBSCENE BOOKS COULD NOT BE ISSUED ON THE CONCLUSORY
OPINION OF A POLICE OFFICER THAT THE BOOKS SOUGHT TO BE SEIZED WERE
OBSCENE.  SUCH A WARRANT LACKED THE SAFEGUARDS DEMANDED "TO ASSURE
NONOBSCENE MATERIAL THE CONSTITUTIONAL PROTECTION TO WHICH IT IS
ENTITLED.  . . . (THE WARRANTS ISSUED ON THE STRENGTH OF THE CONCLUSORY
ASSERTIONS OF A SINGLE POLICE OFFICER, WITHOUT ANY SCRUTINY BY THE
JUDGE OF ANY MATERIALS CONSIDERED BY THE COMPLAINANT TO BE OBSCENE." 
367 U.S., AT 731 - 732.  THERE HAD BEEN "NO STEP IN THE PROCEDURE
BEFORE SEIZURE DESIGNED TO FOCUS SEARCHINGLY ON THE QUESTION OF
OBSCENITY."  ID., AT 732. 

THE SENSE OF THIS HOLDING WAS REAFFIRMED IN A QUANTITY OF BOOKS V.
KANSAS, SUPRA, WHERE THE COURT FOUND UNCONSTITUTIONAL A "MASSIVE
SEIZURE" OF BOOKS FROM A COMMERCIAL BOOK STORE FOR THE PURPOSE OF
DESTROYING THE BOOKS AS CONTRABAND.  THE RESULT WAS PREMISED ON THE
LACK OF AN ADVERSARY HEARING PRIOR TO SEIZURE, AND THE COURT DID NOT
FIND IT NECESSARY TO REACH THE CLAIM THAT THE SEIZURE VIOLATED FOURTH
AMENDMENT STANDARDS.  378 U.S., AT 210 N. 2.  HOWEVER THE COURT
EMPHASIZED: 

     "IT IS NO ANSWER TO SAY THAT OBSCENE BOOKS ARE CONTRABNAD, AND

  THAT CONSEQUENTLY THE STANDARDS GOVERNING SEARCHES AND SEIZURES

  OF ALLEGEDLY OBSCENE BOOKS SHOULD NOT DIFFER FROM THOSE APPLIED

  WITH RESPECT TO NARCOTICS, GAMBLING PARAPHERNALIA AND OTHER

  CONTRABAND. 

[[HC503'(ORIGINAL DOCUMENT PAGE 503)'

  WE REJECTED THAT PROPOSITION IN MARCUS."  ID., AT 211 - 212. 

LEE ART THEATRE V. VIRGINIA, SUPRA, WAS TO THE SAME EFFECT WITH
REGARD TO SEIZURE OF A FILM FROM A COMMERCIAL THEATER REGULARLY OPEN TO
THE PUBLIC.  THERE A WARRANT FOR THE SEIZURE OF THE FILM WAS ISSUED ON
THE BASIS OF A POLICE OFFICER'S AFFIDAVIT GIVING THE TITLES OF THE FILM
AND ASSERTING IN CONCLUSORY FASHION THAT HE HAD PERSONALLY VIEWED THE
FILMS AND CONSIDERED THEM OBSCENE.  THE FILMS WERE SEIZED PURSUANT TO
THE WARRANT AND INTRODUCED INTO EVIDENCE IN A CRIMINAL CASE AGAINST THE
EXHIBITOR.  CONVICTION ENSUED.  ON REVIEW, THE COURT HELD THAT "(THE
ADMISSION OF THE FILMS IN EVIDENCE REQUIRES REVERSAL OF PETITIONER'S
CONVICTION" BECAUSE 

"(THE PROCEDURE UNDER WHICH THE WARRANT ISSUED SOLELY UPON THE
CONCLUSORY ASSERTIONS OF THE POLICE OFFICER WITHOUT ANY INQUIRY BY THE
JUSTICE OF THE PEACE INTO THE FACTUAL BASIS FOR THE OFFICER'S
CONCLUSIONS WAS NOT A PROCEDURE'DESIGNED FOCUS SEARCHINGLY ON THE
QUESTION OF OBSCENITY,'  ID., (MARCUS V. SEARCH WARRANT, SUPRA) AT 732,
AND THEREFORE FELL SHORT OF CONSTITUTIONAL REQUIREMENTS DEMANDING
NECESSARY SENSITIVITY TO FREEDOM OF EXPRESSION."  LEE ART THEATRE V.
VIRGINIA, 392 U.S., AT 637. 

NO MENTION WAS MADE IN THE BRIEF PER CURIAM LEE ART THEATRE OPINION
AS TO WHETHER OR NOT THE SEIZURE WAS INCIDENT TO AN ARREST.  THE COURT
RELIED ON MARCUS AND A QUANTITY OF BOOKS. 

THE COMMON THREAD OF MARCUS, A QUANTITY OF BOOKS AND LEE ART THEATRE
IS TO BE FOUND IN THE NATURE OF THE MATERIALS SEIZED AND THE SETTING IN
WHICH THEY WERE TAKEN.  SEE STANFORD V. TEXAS, 379 U.S. 476, 486
(1965).  /4/  IN EACH CASE THE MATERIAL SEIZED FELL ARGUABLY WITHIN
FIRST AMENDMENT PROTECTION, AND THE TAKING BROUGHT TO AN ABRUPT HALT AN
ORDERLY AND PRESUMPTIVELY LEGITIMATE DISTRIBUTION OR EXHIBITION. 

[[HC504'(ORIGINAL DOCUMENT PAGE 504)'  SEIZING A FILM THEN BEING
EXHIBITED TO THE GENERAL PUBLIC PRESENTS ESSENTIALLY THE SAME RESTRAINT
ON EXPRESSION AS THE SEIZURE OF ALL THE BOOKS IN A BOOKSTORE.  SUCH
PRECIPITATE ACTION BY A POLICE OFFICER, WITHOUT THE AUTHORITY OF A
CONSTITUTIONALY SUFFICIENT WARRANT, IS PLAINLY A FORM OF PRIOR
RESTRAINT AND IS, IN THOSE CIRCUMSTANCES, UNREASONABLE UNDER FOURTH
AMENDMENT STANDARDS.  THE SEIZURE IS UNREASONABLE, NOT SIMPLY BECAUSE
IT WOULD HAVE BEEN EASY TO SECURE A WARRANT, BUT RATHER BECAUSE PRIOR
RESTRAINT OF THE RIGHT OF EXPRESSION, WHETHER BY BOOKS OR FILMS, CALLS
FOR A HIGHER HURDLE IN THE EVALUATION OF REASONABLENESS.  THE SETTING
OF THE BOOKSTORE OR THE COMMERICAL THEATER, EACH PRESUMPTIVELY UNDER
THE PROTECTION OF THE FIRST AMENDMENT, INVOKES SUCH FOURTH AMENDMENT
WARRANT REQUIREMENTS BECAUSE WE EXAMINE WHAT IS "UNREASONABLE" IN THE
LIGHT OF VALUES OF FREEDOM OF EXPRESSION.  /5/  AS WE STATED IN
STANFORD V. TEXAS, SUPRA: 

     "IN SHORT . . . THE CONSTITUTIONAL REQUIREMENT THAT WARRANTS

  MUST PARTICULARLY DESCRIBE THE 'THINGS TO BE SEIZED' IS TO BE

  ACCORDED THE MOST SCRUPULOUS EXACTITUDE WHEN THE 'THINGS' ARE

  BOOKS, AND THE BASIS FOR THEIR SEIZURE IS THE IDEAS WHICH THEY

  CONTAIN.  SEE MARCUS V. SEARCH WARRANT, 367 U.S. 717; A QUANTITY

OF BOOKS V. KANSAS, 378 U.S. 205.  NO LESS A STANDARD COULD BE

  FAITHFUL TO FIRST AMENDMENT FREEDOMS.  THE CONSTITUTIONAL

  IMPOSSIBILITY OF LEAVING THE PROTECTION OF THOSE FREEDOMS TO THE

  WHIM OF THE OFFICERS CHARGED WITH EXECUTING THE WARRANT IS

  DRAMATICALLY UNDERSCORED BY WHAT THE OFFICERS SAW FIT TO SEIZE

  UNDER THE WARRANT IN THIS CASE." 

[[HC505'(ORIGINAL DOCUMENT PAGE 505)'

  379 U.S., AT 485 (FOOTNOTES OMITTED). 

MOREOVER, ORDINARY HUMAN EXPERIERENCE SHOULD TEACH THAT THE SEIZURE
OF A MOVIE FILM FROM A COMMERCIAL THEATER WITH REGULARLY SCHEDULED
PERFORMANCES, WHERE A FILM IS BEING PLAYED AND REPLAYED TO PAID
AUDIENCES, PRESENTS A VERY IDFFERENT SITUATION FROM THAT IN WHICH
CONTRABNAD IS CHANGING HANDS OR WHERE A ROBBERY OR ASSAULT IS BEING
PERPETRATED.  IN THE LATTER SETTINGS, THE PROBABLE CAUSE FOR AN ARREST
MIGHT JUSTIFY THE SEIZURE OF WEAPONS, OR OTHER EVIDENCE OR INSTRUMENTS
OF A CRIME, WITHOUT A WARRANT.  CF. CHIMEL V. CALIFORNIA, 395 U.S. 752,
764 (1969); ID., AT 773 - 774 (WHITE, J., DISSENTING); PRESTON V.
UNITED STATES, 376 U.S. 364, 367 (1964).  WHERE THERE ARE EXIGENT
CIRCUMSTANCES IN WHICH POLICE ACTION LITERALLY MUST BE "NOW OR NEVER"
TO PRESERVE THE EVIDENCE OF THE CRIME, IT IS REASONABLE TO PERMIT
ACTION WITHOUT PRIOR JUDICIAL EVALUATION.  /6/  SEE CHAMBERS V.
MARONEY, 399 U.S. 42, 47 - 51 (1970).  CF. CARROLL V. UNITED STATES,
267 U.S. 132 (1925).  THE FACTS SURROUNDING THE "MASSIVE SEIZURES" OF
BOOKS IN MARCUS AND A QUANTITY OF BOOKS, OR THE SEIZURE OF THE FILM IN
LEE ART THEATRE, PRESENTED NO SUCH "NOW OR NEVER"  CIRCUMSTANCES. 

[[HC506'(ORIGINAL DOCUMENT PAGE 506)'

        II 

THE FILM SEIZED IN THIS CASE WAS BEING EXHIBITED AT A COMMERCIAL
THEATER SHOWING REGULARLY SCHEDULED PERFORMANCES TO THE GENERAL
PUBLIC.  THE SEIZURE PROCEEDED SOLELY ON A POLICE OFFICER'S CONCLUSIONS
THAT THE FILM WAS OBSCENE; THERE WAS NO WARRANT.  NOTHING PRIOR TO
SEIZURE AFFORDED A MAGISTRATE AN OPPORTUNITY TO "FOCUS SEARCHINGLY ON
THE QUESTION OF OBSCENITY."  SEE HELLER V. NEW YORK, ANTE, AT 488 -
489; MARCUS V. SEARCH WARRANT, 367 U.S., AT 732.  IF, AS MARCUS AND LEE
ART THEATRE HELD, A WARRANT FOR SEIZING ALLEGEDLY OBSCENE MATERIAL MAY
NOT ISSUE ON THE MERE CONCLUSORY ALLEGATIONS OF AN OFFICER, A FORTIORI,
THE OFFICER MAY NOT MAKE SUCH A SEIZURE WITH NO WARRANT AT ALL.  "THE
USE BY GOVERNMENT OF THE POWER OF SEARCH AND SEIZURE AS AN ADJUNCT TO A
SYSTEM FOR THE SUPPRESSION OF OBJECTIONABLE PUBLICATIONS IS NOT NEW...
THE BILL OF RIGHTS WAS FASHIONED AGAINST THE BACKGROUND OF KNOWLEDGE
THAT UNRESTRICTED POWER OF SEARCH AND SEIZURE COULD ALSO BE AN
INSTRUMENT FOR STIFLING LIBERTY OF EXPRESSION."  MARCUS V. SEARCH
WARRANT, SUPRA, AT 724, 729.  IN THIS CASE, AS IN LEE ART THEATRE, THE
ADMISSION OF THE FILM IN EVIDENCE REQUIRES REVERSAL OF PETITIONER'S
CONVICTION.  392 U.S., AT 637. 

THE JUDGMENT OF THE COURT OF APPEALS OF KENTUCKY IS REVERSED AND
THIS CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              REVERSED AND REMANDED. 

/1/  PETITIONER'S LAWYER MADE THE FOLLOWING STATEMENT TO THE TRIAL
JURY DURING THE CLOSING ARGUMENTS: 

"I WOULD BE GOOD ENOUGH TO TELL YOU AT THE OUTSET THAT, IN BEHALF OF
MR. ROADEN, I AM NOT GOING TO GET UP HERE AND DEFEND THE FILM OBSERVED
YESTERDAY NOR THE REVOLTING SCENES IN IT OR TRY TO ARGUE OR PERSUADE
YOU THAT THOSE SCENES) WERE NOT OBSCENE."  APP. 37. 

/2/  KENTUCKY REVISED STATUTES ^ 436.101 (1973), READS IN RELEVANT
PART AS FOLLOWS: 

"OBSCENE MATTER, DISTRIBUTION, PENALTIES, DESTRUCTION. 

"(1) AS USED IN THIS SECTION: 

"(A) 'DISTRIBUTE' MEANS TO TRANSFER POSSESSION OF, WHETHER WITH OR
WITHOUT CONSIDERATION. 

"(B) 'MATTER' MEANS ANY BOOK, MAGAZINE, NEWSPAPER, OR OTHER PRINTED
OR WRITTEN MATERIAL OR ANY PICTURE, DRAWING, PHOTOGRAPH, MOTION
PICTURE, OR OTHER PICTORIAL REPRESENTATION OR ANY STATUE OR OTHER
FIGURE, OR ANY RECORDING, TRANSCRIPTION OR MECHANICAL, CHEMICAL OR
ELECTRICAL REPRODUCTION OR ANY OTHER ARTICLES, EQUIPMENT, MACHINES OR
MATERIALS. 

"(C) 'OBSCENE' MEANS THAT TO THE AVERAGE PERSON, APPLYING
CONTEMPORARY STANDARDS, THE PREDOMINANT APPEAL OF THE MATTER, TAKEN AS
A WHOLE, IS TO PRURIENT INTEREST, A SHAMEFUL OR MORBID INTEREST IN
NUDITY, SEX, OR EXCRETION, WHICH GOES SUBSTANTIALLY BEYOND CUSTOMARY
LIMITS OF CANDOR IN DESCRIPTION OR REPRESENTATION OF SUCH MATTERS. 

"(D) 'PERSON' MEANS ANY INDIVIDUAL, PARTNERSHIP, FIRM, ASSOCIATION,
CORPORATION, OR OTHER LEGAL ENTITY. 

"(2) ANY PERSON WHO, HAVING KNOWLEDGE OF THE OBSCENITY THEREOF, SENDS
OR CAUSES TO BE SENT, OR BRINGS OR CAUSES TO BE BROUGHT, INTO THIS
STATE FOR SALE OR DISTRIBUTION, OR IN THIS STATE PREPARES, PUBLISHES,
PRINTS, EXHIBITS, DISTRIBUTES, OR OFFERS TO DISTRIBUTE, OR HAS IN HIS
POSSESSION WITH INTENT TO DISTRIBUTE OR TO EXHIBIT OR OFFER TO
DISTRIBUTE, ANY OBSCENE MATTER IS PUNISHABLE BY FINE OF NOT MORE THAN
$1,000 PLUS FIVE DOLLARS ($5.00) FOR EACH ADDITIONAL UNIT OF MATERIAL
COMING WITHIN THE PROVISIONS OF THIS CHAPTER, WHICH IS INVOLVED IN THE
OFFENSE, NOT TO EXCEED TEN THOUSAND DOLLARS ($10,000), OR BY
IMPRISONMENT IN THE COUNTY JAIL FOR NOT MORE THAN SIX (6) MONTHS PLUS
ONE (1) DAY FOR EACH ADDITIONAL UNIT OF MATERIAL COMING WITHIN THE
PROVISIONS OF THIS CHAPTER, AND WHICH IS INVOLVED IN THE OFFENSE, SUCH
BASIC MAXIMUM AND ADDITIONAL DAYS NOT TO EXCEED 360 DAYS IN THE COUNTY
JAIL, OR BY BOTH SUCH FINE AND IMPRISONMENT.  IF SUCH PERSON HAS
PREVIOUSLY BEEN CONVICTED OF A VIOLATION OF THIS SUBSECTION, HE IS
PUNISHABLE BY FINE OF NOT MORE THAN $2,000 PLUS FIVE DOLLARS ($5.00)
FOR EACH ADDITIONAL UNIT OF MATERIAL COMING WITHIN THE PROVISIONS OF
THIS CHAPTER, WHICH IS INVOLVED IN THE OFFENSE, NOT TO EXCEED $25,000,
OR BY IMPRISONMENT IN THE COUNTY JAIL FOR NOT MORE THAN ONE (1) YEAR,
OR BY BOTH SUCH FINE AND SUCH IMPRISONMENT.  IF A PERSON HAS BEEN TWICE
CONVICTED OF A VIOLATION OF THIS SECTION, A VIOLATION OF THIS
SUBSECTION IS PUNISHABLE BY IMPRISONMENT IN THE STATE PENITENTIARY NOT
EXCEEDING FIVE (5) YEARS. 

        *          *          *       * 

"(8) THE JURY, OR THE COURT, IF A JURY TRIAL IS WAIVED, SHALL RENDER
A GENERAL VERDICT, AND SHALL ALSO RENDER A SPECIAL VERDICT AS TO
WHETHER THE MATTER NAMED IN THE CHARGE IS OBSCENE.  THE SPECIAL VERDICT
OR FINDINGS ON THE ISSUE OF OBSCENITY MAY BE:  'WE FIND THE . . .
(TITLE OR DESCRIPTION OF MATTER) TO BE OBSCENE,' OR, 'WE FIND THE . . .
(TITLE OR DESCRIPTION OF MATTER) NOT TO BE OBSCENE,' AS THEY MAY FIND
EACH ITEM IS OR IS NOT OBSCENE. 

"(9) UPON THE CONVICTION OF THE ACCUSED, THE COURT MAY, WHEN THE
CONVICTION BECOMES FINAL, ORDER ANY MATTER OR ADVERTISEMENT, IN RESPECT
WHEREOF THE ACCUSED STANDS CONVICTED, AND WHICH REMAINS IN THE
POSSESSION OR UNDER THE CONTROL OF THE ATTORNEY GENERAL, COMMONWEALTH'S
ATTORNEY, COUNTY ATTORNEY, CITY ATTORNEY OR THEIR AUTHORIZED
ASSISTANTS, OR ANY LAW ENFORCEMENT AGENCY, TO BE DESTROYED, AND THE
COURT MAY CAUSE TO BE DESTROYED ANY SUCH MATERIAL IN ITS POSSESSION OR
UNDER ITS CONTROL." 

/3/  WE VACATED THE JUDGMENT IN HOSEY V. CITY OF JACKSON, 309
F.SUPP.  527 (SD MISS.  1970), ON THE GROUNDS OF THE COURT'S POLICY OF
NONINTERFERENCE IN STATE PROSECUTION; WE DID NOT REACH THE MERITS. 
HOSEY V. CITY OF JACKSON, 401 U.S. 987 (1971).  WE ALSO VACATED THE
JUDGMENT OF LEDESMA V. PEREZ, 304 F.SUPP.  662 (ED LA. 1969), AGAIN ON
THE GROUNDS OF NONINTERFERENCE WITH STATE CRIMINAL PROCEEDINGS, PRIOR
TO ADJUDICATIONS BY STATE COURTS.  PEREZ V. LEDESMA, 401 U.S. 82
(1971). 

/4/  IN STANFORD V. TEXAS, 379 U.S. 476, 486 (1965), WE ACKNOWLEDGED
THE DIFFERENCE BETWEEN BOOKS AND WEAPONS, NARCOTICS, OR CASES OF
WHISKEY. 

/5/  THIS DOES NOT MEAN AN ADVERSARY PROCEEDING IS NEEDED BEFORE
SEIZURE, SINCE A WARRANT MAY BE ISSUED EX PARTE.  HELLER V. NEW YORK,
ANTE, P. 483. 

/6/  COUNSEL FOR KENTUCKY, TOGETHER WITH COUNSEL FOR NEW YORK IN
HELLER V. NEW YORK, ANTE, AT 493, AND COUNSEL FOR CALIFORNIA AS AMICUS
CURIAE IN HELLER, HAVE EMPHASIZED THAT ALLEGEDLY OBSCENE FILMS ARE
PARTICULARLY DIFFICULT EVIDENCE TO PRESERVE UNLESS KEPT IN CUSTODY.  WE
AGAIN TAKE JUDICIAL NOTICE THAT FILMS MAY BE COMPACT, MAY BE EASY TO
DESTROY OR TO REMOVE TO ANOTHER JURISDICTION, AND MAY BE SUBJECT TO
PRETRIAL ALTERATIONS BY CUTTING OUT SCENES AND RESPLICING REELS.  SEE
IBID.  BUT, AS THE HELLER CASE DEMONSTRATES, WHERE FILMS ARE SCHEDULED
FOR EXHIBITION IN A COMMERCIAL THEATER OPEN TO THE PUBLIC, PROCURING A
WARRANT BASED ON A PRIOR JUDICIAL DETERMINATION OF PROBABLE CAUSE OF
OBSCENITY NEED NOT RISK LOSS OF THE EVIDENCE. 

[[DOP 

(FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 494). 

[[DOP 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN THE JUDGMENT. 

[[HC507'(ORIGINAL DOCUMENT PAGE 507)' 

WE GRANTED CERTIORARI TO CONSIDER THE HOLDING OF THE COURT OF
APPEALS OF KENTUCKY THAT THE CONSTITUTION DOES NOT REQUIRE AN ADVERSARY
HEARING ON OBSCENITY PRIOR TO THE SEIZURE OF REELS OF FILM, WHERE THE
SEIZURE IS INCIDENT TO THE ARREST OF THE MANAGER OF A DRIVE-IN MOVIE
THEATER.  473 S. W. 2D 814 (1971).  THE STATUTE UNDER WHICH THE
PROSECUTION WAS BROUGHT /1/  IS, IN MY VIEW, UNCONSTITUTIONALLY
OVERBROAD AND THEREFORE INVALID ON ITS FACE.  SEE MY DISSENT IN PARIS
ADULT THEATRE I V. SLATON, ANTE, P. 73.  I WOULD THEREFORE REVERSE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH MY DISSENTING OPINION IN SLATON. 

[[DFN 

/1/  KY. REV. STAT. ^ 436.101 (2) PROVIDES IN PART THAT 

"ANY PERSON WHO, HAVING KNOWLEDGE OF THE OBSCENITY THEREOF, SENDS OR
CAUSES TO BE SENT, OR BRINGS OR CAUSES TO BE BROUGHT, INTO THIS STATE
FOR SALE OR DISTRIBUTION, OR IN THIS STATE PREPARES, PUBLISHES,
PRINTES, EXHIBITS, DISTRIBUTES, OR OFFERS TO DISTRIBUTE, OR HAS IN HIS
POSSESSION WITH INTENT TO DISTRIBUTE OR TO EXHIBIT OR OFFER TO
DISTRIBUTE, ANY OBSCENE MATTER IS PUNISHABLE BY FINE OF NOT MORE THAN
$1,000 . . . OR BY IMPRISONMENT IN THE COUNTY JAIL FOR NOT MORE THAN
SIX (6) MONTHS . . . ." 

PHILLIP K. WICKER ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

ROBERT V. BULLOCK, ASSISTANT ATTORNEY GENERAL OF KENTUCKY, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS ED. W. HANCOCK,
ATTORNEY GENERAL. 

CHARLES H. KEATING, JR., FILED A BRIEF AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :






UNITED STATES DEPARTMENT OF AGRICULTURE ET AL. V. MURRY ET AL. 413 U.S.
508 



       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA 

     NO. 72 - 848.  ARGUED APRIL 23, 1973--DECIDED JUNE 25, 1973;
348 F.SUPP.  242, AFFIRMED. 


    APPELLEES CHALLENGE THE CONSTITUTIONALITY OF SEC. 5(B) OF THE

  FOOD STAMP ACT OF 1964, AS AMENDED IN 1971, PROVIDING THAT "(ANY

  HOUSEHOLD WHICH INCLUDED A MEMBER WHO HAS REACHED HIS EIGHTEENTH

  BIRTHDAY AND WHO IS CLAIMED AS A DEPENDENT CHILD FOR FEDERAL

  INCOME TAX PURPOSES BY A TAXPAYER WHO IS NOT A MEMBER OF AN

  ELIGIBLE HOUSEHOLD, SHALL BE INELIGIBLE TO PARTICIPATE IN ANY

  FOOD STAMP PROGRAM . . . DURING THE TAX PERIOD SUCH DEPENDENCY IS

  CLAIMED AND FOR A PERIOD OF ONE YEAR AFTER THE EXPIRATION OF SUCH

  TAX PERIOD."  THIS PROVISION WAS GENERATED BY CONGRESSIONAL

  CONCERN OVER NONNEEDY HOUSEHOLDS PARTICIPATING IN THE FOOD STAMP

  PROGRAM, AND ABUSES OF THE PROGRAM BY "COLLEGE STUDENTS"  AND

  "CHILDREN OF WEALTHY PARENTS."  THE DISTRICT COURT HELD THE

  PROVISION UNCONSTITUTIONAL, FINDING THAT IT WENT FAR BEYOND THE

  CONGRESSIONAL GOAL, AND OPERATED INFLEXIBLY TO DENY STAMPS TO

  HOUSEHOLDS, CONTAINING NO COLLEGE STUDENTS, THAT HAD ESTABLISHED

  CLEAR ELIGIBILITY FOR STAMPS AND REMAINED IN DIRE NEED, ONLY

  BECAUSE A MEMBER OF THE HOUSEHOLD 18 YEARS OR OLDER IS CLAIMED BY

SOMEONE AS A TAX DEPENDENT.  HELD:  THE TAX DEDUCTION TAKEN FOR

  THE BENEFIT OF THE PARENT IN A PRIOR YEAR IS NOT A RATIONAL

  MEASURE OF THE NEED OF A DIFFERENT HOUSEHOLD WITH WHICH THE CHILD

  OF THE TAX-DEDUCTING PARENT LIVES, AND THE ADMINISTRATION OF THE

  ACT ALLOWS NO HEARING TO SHOW THAT THE TAX DEDUCTION IS

  IRRELEVANT TO THE NEED OF THE HOUSEHOLD.  SECTION 5(B) THEREFORE

  VIOLATES DUE PROCESS.  PP. 511 - 514. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, WHITE, AND MARSHALL, JJ., JOINED.  STEWARD, J., POST, P. 514,
AND MARSHALL, J., POST, P. 517, FILED CONCURRING OPINIONS.  BLACKMUN,
J., FILED A DISSENTING OPINION, POST, P. 520.  REHNQUIST, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C. J., AND POWELL, J., JOINED,
POST, P. 522. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

[[HC509'(ORIGINAL DOCUMENT PAGE 509)' 

THE FOOD STAMP ACT OF 1964, 7 U.S.C. ^ 2011 ET SEQ., AS AMENDED IN
1971, 84 STAT. 2048, HAS BEEN APPLIED TO THESE APPELLEES SO AS TO LEAD
THE THREE-JUDGE DISTRICT COURT TO HOLD ONE PROVISION OF IT
UNCONSTITUTIONAL.  348 F.SUPP.  242.  WE NOTED PROBABLE JURISDICTION. 
410 U.S. 924. 

APPELLEE MURRY HAS TWO SONS AND TEN GRANDCHILDREN IN HER HOUSEHOLD. 
HER MONTHLY INCOME IS $57.50, WHICH COMES FROM HER EX-HUSBAND AS
SUPPORT FOR HER SONS.  HER EXPENSES FAR EXCEED HER MONTHLY INCOME.  BY
PAYMENT, HOWEVER, OF $11 SHE RECEIVED $128 IN FOOD STAMPS.  BUT SHE HAS
NOW BEEN DENIED FOOD STAMPS BECAUSE HER EX-HUSBAND (WHO HAS REMARRIED)
HAD CLAIMED HER TWO SONS AND ONE GRANDCHILD AS TAX DEPENDENTS IN HIS
1971 INCOME TAX RETURN.  THAT CLAIM, PLUS THE FACT THAT HER ELDEST SON
IS 19 YEARS OLD, DISQUALIFIED HER HOUSEHOLD FOR FOOD STAMPS UNDER ^
5(B) OF THE ACT.  /1/  APPELLEE ALDERETE IS IN COMPARABLE STRAITS
BECAUSE HER EX-HUSBAND CLAIMED THE FIVE CHILDREN, WHO LIVE WITH THEIR
MOTHER, AS TAX DEPENDENTS, THE OLDEST BEING 18 YEARS OLD.  APPELLEE
BEAVERT'S CASE IS SIMILAR.  APPELLEE LEE IS THE MOTHER OF FIVE
CHILDREN, HER ENTIRE INCOME PER MONTH BEING $23 DERIVED FROM PUBLIC
ASSISTANCE. 

[[HC510'(ORIGINAL DOCUMENT PAGE 510)'  HER FIVE CHILDREN LIVE WITH
HER.  HER MONTHLY BILLS ARE $249, OF WHICH $148 GOES FOR FOOD.  HER
HUSBAND IS NOT A MEMBER OF HER HOUSEHOLD; HE IN FACT DESERTED HER AND
HAS SUPPLIED HIS FAMILY WITH NO SUPPORT.  BUT HE CLAIMED THE TWO OLDEST
SONS, AGES 20 AND 18, AS TAX DEPENDENTS IN HIS 1971 TAX RETURN, WITH
THE RESULT THAT THE WIFE'S HOUSEHOLD WAS DENIED FOOD STAMPS.  APPELLEE
NEVAREZ IS IN COMPARABLE STRAITS. 

APPELLEE JOE VALDEZ IS 18 YEARS OLD AND MARRIED, AND HE AND HIS WIFE
HAVE A CHILD.  HE LIVES WHOLLY ON PUBLIC ASSISTANCE AND APPLIED FOR
FOOD STAMPS.  HIS APPLICATION WAS REJECTED BECAUSE HIS FATHER BEN
CLAIMED HIM AS A TAX DEPENDENT IN HIS 1971 INCOME TAX RETURN. 

[[HC511'(ORIGINAL DOCUMENT PAGE 511)'  JOE RECEIVES NO SUPPORT FROM
BEN BECAUSE BEN IS IN DEBT AND UNABLE TO HELP SUPPORT JOE. 

APPELLEE BRODERSON IS 18 AND MARRIED TO A 16-YEAR-OLD WIFE AND THEY
HAVE A SMALL CHILD.  THEIR MONTHLY INCOME IS $110 CONSISTING OF HIS
WAGES AT A SERVICE STATION.  HE CANNOT GET FOOD STAMPS BECAUSE HIS
FATHER CLAIMED HIM AS A TAX DEPENDENT.  THE FATHER, HOWEVER, GIVES HIM
NO SUPPORT. 

APPELLEE SHULTZ IS 19 YEARS OLD AND SHE RESIDES WITH A GIRL FRIEND
AND THE LATTER'S TWO CHILDREN.  APPELLEE SHULTZ HAS NO INCOME OF ANY
KIND BUT RECEIVED FOOD STAMPS FOR THE HOUSEHOLD WHERE SHE LIVED.  FOOD
STAMPS, HOWEVER, WERE DISCONTINUED WHEN HER PARENTS CLAIMED HER AS A
TAX DEPENDENT BUT REFUSED TO GIVE HER ANY AID.  SHE SOON GOT MARRIED,
BUT SHE AND HER HUSBAND WERE DENIED FOOD STAMPS BECAUSE HER PARENTS HAD
CLAIMED HER FOR TAX DEPENDENCY. 

THESE APPELLEES BROUGHT A CLASS ACTION TO ENJOIN THE ENFORCEMENT OF
THE TAX DEPENDENCY PROVISION OF THE ACT; AND, AS NOTED, THE THREE-JUDGE
COURT GRANTED THE RELIEF. 

APPELLEES ARE MEMBERS OF HOUSEHOLDS THAT HAVE BEEN DENIED FOOD STAMP
ELIGIBILITY SOLELY BECAUSE THE HOUSEHOLDS CONTAIN PERSONS 18 YEARS OR
OLDER WHO HAVE BEEN CLAIMED AS "DEPENDENTS" FOR FEDERAL INCOME TAX
PURPOSES BY TAXPAYERS WHO ARE THEMSELVES INELIGIBLE FOR FOOD STAMP
RELIEF.  SECTION 5(B) MAKES THE ENTIRE HOUSEHOLD OF WHICH A "TAX
DEPENDENT" WAS A MEMBER INELIGIBLE FOR FOOD STAMPS FOR TWO YEARS:
(1DURING THE TAX YEAR FOR WHICH THE DEPENDENCY WAS CLAIMED AND (2)
DURING THE NEXT 12 MONTHS.  DURING THESE TWO PERIODS OF TIME ^ 5(B)
CREATES A CONCLUSIVE PRESUMPTION THAT THE "TAX DEPENDENT'S" HOUSEHOLD
IS NOT NEEDY AND HAS ACCESS TO NUTRITIONAL ADEQUACY. 

THE ACTING ADMINISTRATOR OF THE FOOD AND NUTRITION SERVICE OF THE
DEPARTMENT OF AGRICULTURE ADMITTED IN THIS CASE THAT: 

[[HC512'(ORIGINAL DOCUMENT PAGE 512)' 

"(IN THE CASE OF HOUSEHOLDS WHICH HAVE INITIALLY BEEN DETERMINED TO
BE INELIGIBLE FOR PARTICIPATION IN THE PROGRAM ON THE BASIS OF TAX
DEPENDENCY, THERE ARE NO FACTUAL ISSUES TO BE PRESENTED OR CHALLENGED
BY THE HOUSEHOLD AT SUCH A HEARING, OTHER THAN THE ISSUE OF WHETHER OR
NOT A MEMBER OF THE HOUSEHOLD HAS BEEN CLAIMED AS A DEPENDENT CHILD BY
A TAXPAYER WHO IS NOT A MEMBER OF A HOUSEHOLD ELIGIBLE FOR FOOD
ASSISTANCE (A FACT THE HOUSEHOLD, IN MOST CASES, ALREADY WILL HAVE
DISCLOSED IN ITS APPLICATION).  IF A HOUSEHOLD STATES THAT IT HAS SUCH
A TAX DEPENDENT MEMBER, THE HOUSEHOLD IS, IN CONFORMITY WITH THE FOOD
STAMP ACT, THE PROGRAM REGULATIONS, AND THE INSTRUCTIONS OF FNS
GOVERNING THE PROGRAM ADMINISTRATION BY STATE AGENCIES, DETERMINED TO
BE INELIGIBLE."  APP. 83. 

THUS, IN THE ADMINISTRATION OF THE ACT, A HEARING IS DENIED, AND IS
NOT AVAILABLE AS THE DISSENT IMPLIES.  AS STATED BY THE DISTRICT COURT
THE ACT CREATES "AN IRREBUTTABLE PRESUMPTION CONTRARY TO FACT."  348
F.SUPP., AT 243.  MOREOVER, AN INCOME TAX RETURN IS FILED, SAY IN APRIL
1973, FOR THE YEAR 1972.  WHEN THE DEPENDENCY DEDUCTION IS FILED, THE
YEAR FOR WHICH THE DEPENDENCY CLAIM WAS MADE HAS ALREADY PASSED. 
THEREFORE THE DISQUALIFICATION FOR FOOD STAMPS CANNOT APPLY TO 1972 BUT
ONLY TO 1973. 

THE TAX DEPENDENCY PROVISION WAS GENERATED BY CONGRESSIONAL CONCERN
ABOUT NONNEEDY HOUSEHOLDS PARTICIPATING IN THE FOOD STAMP PROGRAM.  /2/
THE LEGISLATIVE HISTORY REFLECTS A CONCERN ABOUT ABUSES OF THE PROGRAM
BY "COLLEGE STUDENTS, CHILDREN OF WEALTHY PARENTS."  /3/  BUT, AS THE
DISTRICT COURT SAID, THE ACT GOES FAR BEYOND THAT GOAL AND ITS
OPERATION IS INFLEXIBLE. 

[[HC513'(ORIGINAL DOCUMENT PAGE 513)'  "HOUSEHOLDS CONTAINING NO
COLLEGE STUDENT, THAT HAD ESTABLISHED CLEAR ELIGIBILITY FOR FOOD STAMPS
AND WHICH STILL REMAIN IN DIRE NEED AND OTHERWISE ELIGIBLE ARE NOT
DENIED STAMPS IF IT APPEARS THAT A HOUSEHOLD MEMBER 18 YEARS OR OLDER
IS CLAIMED BY SOMEONE AS A TAX DEPENDENT."  348 F.SUPP., AT 243. 

TAX DEPENDENCY IN A PRIOR YEAR SEEMS TO HAVE NO RELATION TO THE
"NEED" OF THE DEPENDENT IN THE FOLLOWING YEAR.  IT DOUBTLESS IS MUCH
EASIER FROM THE ADMINISTRATIVE POINT OF VIEW TO HAVE A SIMPLE TAX
"DEPENDENCY" TEST THAT WILL AUTOMATICALLY --WITHOUT HEARING, WITHOUT
WITNESSES, WITHOUT FINDINGS OF FACT--TERMINATE A HOUSEHOLD'S CLAIM FOR
ELIGIBILITY FOR FOOD STAMPS.  YET, AS WE RECENTLY STATED IN STANLEY V.
ILLINOIS, 405 U.S. 645, 656: 

"(IT MAY BE ARGUED THAT UNMARRIED FATHERS ARE SO SELDOM FIT THAT
ILLINOIS NEED NOT UNDERGO THE ADMINISTRATIVE INCONVENIENCE OF INQUIRY
IN ANY CASE, INCLUDING STANLEY'S.  THE ESTABLISHMENT OF PROMPT
EFFICACIOUS PROCEDURES TO ACHIEVE LEGITIMATE STATE ENDS IS A PROPER
STATE INTEREST WORTHY OF COGNIZANCE IN CONSTITUTIONAL ADJUDICATION. 
BUT THE CONSTITUTION RECOGNIZES HIGHER VALUES THAN SPEED AND
EFFICIENCY.  INDEED, ONE MIGHT FAIRLY SAY OF THE BILL OF RIGHTS IN
GENERAL, AND THE DUE PROCESS CLAUSE IN PARTICULAR, THAT THEY WERE
DESIGNED TO PROTECT THE FRAGILE VALUES OF A VULNERABLE CITIZENRY FROM
THE OVERBEARING CONCERN FOR EFFICIENCY AND EFFICACY THAT MAY
CHARACTERIZE PRAISEWORTHY GOVERNMENT OFFICIALS NO LESS, AND PERHAPS
MORE, THAN MEDIOCRE ONES." 

WE HAVE DIFFICULTY IN CONCLUDING THAT IT IS RATIONAL TO ASSUME THAT
A CHILD IS NOT INDIGENT THIS YEAR BECAUSE THE PARENT DECLARED THE CHILD
AS A DEPENDENT IN HIS TAX RETURN FOR THE PRIOR YEAR. 

[[HC514'(ORIGINAL DOCUMENT PAGE 514)'  BUT EVEN ON THAT ASSUMPTION
OUR PROBLEM IS NOT AT AN END.  UNDER THE ACT THE ISSUE IS NOT THE
INDIGENCY OF THE CHILD BUT THE INDIGENCY OF A DIFFERENT HOUSEHOLD WITH
WHICH THE CHILD HAPPENS TO BE LIVING.  MEMBERS OF THAT DIFFERENT
HOUSEHOLD ARE DENIED FOOD STAMPS IF ONE OF ITS PRESENT MEMBERS WAS USED
AS A TAX DEDUCTION IN THE PAST YEAR BY HIS PARENTS EVEN THOUGH THE
REMAINING MEMBERS HAVE NO RELATION TO THE PARENT WHO USED THE TAX
DEDUCTION, EVEN THOUGH THEY ARE COMPLETELY DESTITUTE AND EVEN THOUGH
THEY ARE ONE, OR 10 OR 20 IN NUMBER.  WE CONCLUDE THAT THE DEDUCTION
TAKEN FOR THE BENEFIT OF THE PARENT IN THE PRIOR YEAR IS NOT A RATIONAL
MEASURE OF THE NEED OF A DIFFERENT HOUSEHOLD WITH WHICH THE CHILD OF
THE TAX-DEDUCTING PARENT LIVES AND RESTS ON AN IRREBUTTABLE PRESUMPTION
OFTEN CONTRARY TO FACT.  IT THEREFORE LACKS CRITICAL INGREDIENTS OF DUE
PROCESS FOUND WANTING IN VLANDIS V. KLINE, 412 U.S. 441, 452; STANLEY
V. ILLINOIS, SUPRA; AND BELL V. BURSON, 402 U.S. 535. 

              AFFIRMED. 

/1/  SECTION 5(B) OF THE ACT PROVIDES IN PART: "ANY HOUSEHOLD WHICH
INCLUDES A MEMBER WHO HAS REACHED HIS EIGHTEENTH BIRTHDAY AND WHO IS
CLAIMED AS A DEPENDENT CHILD FOR FEDERAL INCOME TAX PURPOSES BY A
TAXPAYER WHO IS NOT A MEMBER OF AN ELIGIBLE HOUSEHOLD, SHALL BE
INELIGIBLE TO PARTICIPATE IN ANY FOOD STAMP PROGRAM ESTABLISHED
PURSUANT TO THIS CHAPTER DURING THE TAX PERIOD SUCH DEPENDENCY IS
CLAIMED AND FOR A PERIOD OF ONE YEAR AFTER EXPIRATION OF SUCH TAX
PERIOD.  . ."  7 U.S.C. ^ 2014(B).  (EMPHASIS ADDED.) 

THE REGULATIONS PROVIDE:  "'DEPENDENT' FOR THE PURPOSE OF ^271.3(D)
OF THIS SUBCHAPTER, MEANS A PERSON CLAIMED AS A DEPENDENT FOR FEDERAL
INCOME TAX PURPOSES BY A PARENT OR GUARDIAN AND LIVING APART FROM THE
HOUSEHOLD OF SUCH PARENT OR GUARDIAN."  7 CFR ^ 270.2(Q). 

"ANY HOUSEHOLD WHICH INCLUDES A MEMBER WHO HAS REACHED HIS 18TH
BIRTHDAY AND WHO IS CLAIMED AS A DEPENDENT FOR FEDERAL INCOME TAX
PURPOSES BY A MEMBER OF A HOUSEHOLD WHICH IS NOT CERTIFIED AS BEING
ELIGIBLE FOR FOOD ASSISTANCE SHALL BE INELIGIBLE TO PARTICIPATE IN THE
PROGRAM DURING THE TAX PERIOD SUCH DEPENDENCY IS CLAIMED AND FOR A
PERIOD OF 1 YEAR AFTER EXPIRATION OF SUCH TAX PERIOD."  7 CFR ^
271.3(D). 

THE RELEVANT EXEMPTION PROVISION IN ^ 151(E)(1) OF THE INTERNAL
REVENUE CODE, AS AMENDED, 26 U.S.C. ^ 151(E)(1) 1970 ED. AND SUPP. I),
READS: 

"AN EXEMPTION OF $750 (SHALL BE ALLOWED) FOR EACH DEPENDENT (AS
DEFINED IN SECTION 152)-- 

"(AWHOSE GROSS INCOME FOR THE CALENDAR YEAR IN WHICH THE TAXABLE
YEAR OF THE TAXPAYER BEGINS IS LESS THAN $750, OR 

"(BWHO IS A CHILD OF THE TAXPAYER AND WHO (I) HAS NOT ATTAINED THE
AGE OF 19 AT THE CLOSE OF THE CALENDAR YEAR IN WHICH THE TAXABLE YEAR
OF THE TAXPAYER BEGINS, OR (II) IS A STUDENT.  . . ." 

AND THE TERM "DEPENDENT" IS DEFINED AS MEANING "ANY OF THE FOLLOWING
INDIVIDUALS OVER HALF OF WHOSE SUPPORT, FOR THE CALENDAR YEAR IN WHICH
THE TAXABLE YEAR OF THE TAXPAYER BEGINS, WAS RECEIVED FROM THE TAXPAYER
. . .: 

"(1A SON OR DAUGHTER OF THE TAXPAYER . . . . "  26 U.S.C. ^ 152(A). 

/2/  HOUSEHOLD PARTICIPATION IS BASED ON CURRENT CIRCUMSTANCES, NOT
PAST NEEDS.  FOOD STAMP CERTIFICATIONS FOR HOUSEHOLDS ON PUBLIC
ASSISTANCE COINCIDE WITH THEIR WELFARE CERTIFICATION PERIODS.  7 CFR ^^
271.4(A)(1) AND 271.4(A)(4)(II).  FOR NONPUBLIC ASSISTANCE HOUSEHOLDS,
CERTIFICATION PERIODS LAST NORMALLY ONLY THREE MONTHS.  7 CFR ^
271.4(A)(4)(III).  LONGER CERTIFICATION PERIODS ARE PROVIDED ONLY "IF
THERE IS LITTLE LIKELIHOOD OF CHANGES IN HOUSEHOLD STATUS."  7 CFR ^^
271.4(A)(4) (III)(B), (C), AND (D). 

/3/  116 CONG. REC. 41979. 

[[DOP 

MR. JUSTICE STEWART, CONCURRING. 

THE FOOD STAMP PROGRAM WAS ESTABLISHED IN 1964 FOR THE TWIN PURPOSES
OF PROMOTING THE AGRICULTURAL ECONOMY AND ALLEVIATING HUNGER AND
MALNUTRITION AMONG THE NEEDY MEMBERS OF "THE OTHER AMERICA."  7 U.S.C.
^ 2011.  UNDER THIS PROGRAM, CURRENTLY NEEDY HOUSEHOLDS WHOSE MEMBERS
COMPLY WITH A WORK REQUIREMENT, 7 U.S.C. ^^ 2014(B), (C), ARE ENTITLED
TO PURCHASE ENOUGH FOOD STAMPS TO PROVIDE THOSE HOUSEHOLDS WITH
NUTRITIONALLY ADEQUATE DIETS.  IN 1971, CONGRESS BECAME CONCERNED WITH
THE POSSIBILITY THAT NONNEEDY HOUSEHOLDS WERE RECEIVING FOOD STAMPS,
AND ITS RESPONSE WAS THE ENACTMENT OF PUB. L. 91 - 671.  WHILE THE
CURBING OF ABUSES IN THE ADMINISTRATION OF A GOVERNMENT PROGRAM IS
ASSUREDLY A LEGITIMATE PURPOSE, THAT STATUTE HAS GIVEN RISE TO
CONSTITUTIONAL QUESTIONS IN THE PRESENT CASE AND ITS COMPANION, UNITED
STATES DEPARTMENT OF AGRICULTURE V. MORENO, POST, P. 528. 

THE CHALLENGED PROVISION IN THE PRESENT CASE IS ^ 5(B) OF THE FOOD
STAMP ACT, AS AMENDED, 7 U.S.C. ^ 2014(B), 84 STAT. 2049.  THAT SECTION
RENDERS INELIGIBLE FOR FOOD STAMPS ANY HOUSEHOLD THAT INCLUDES A MEMBER
OVER 18 YEARS OF AGE WHO HAS BEEN CLAIMED AS A TAX DEPENDENT BY A
TAXPAYER WHO IS NOT HIMSELF ELIGIBLE FOR THE STAMPS.  WHAT LITTLE
LEGISLATIVE HISTORY THERE IS SUGGESTS THAT THE SOLE REASON FOR
ENACTMENT OF THIS SECTION WAS TO PREVENT THE RECEIPT OF FOOD STAMPS BY
THE SONS AND DAUGHTERS OF MORE AFFLUENT FAMILIES.  116 CONG. REC.
41979, 41981, 41993, 42021; CF. DANDRIDGE V. WILLIAMS, 397 U.S. 471,
483 - 484. 

RATHER THAN REQUIRING AN INDIVIDUALIZED DETERMINATION THAT A
PARTICULAR HOUSEHOLD LINKED TO A RELATIVELY MORE AFFLUENT HOUSEHOLD BY
A CLAIMED TAX DEPENDENCY WAS NOT IN FACT NEEDY.  CONGRESS CHOSE INSTEAD
TO UTILIZE A CONCLUSIVE PRESUMPTION.  THE SIMPLE FACT THAT A HOUSEHOLD
MEMBER HAS BEEN CLAIMED AS A TAX DEPENDENT BY A NON-INDIGENT TAXPAYER
RESULTS IN THE COMPLETE TERMINATION OF BENEFITS FOR THAT ENTIRE
HOUSEHOLD IN THE RELEVANT TAX PERIOD AND IN THE SUBSEQUENT 12 MONTHS AS
WELL.  7 U.S.C. 2014 (B).  IT MATTERS NOT WHETHER THAT DEPENDENCY CLAIM
WAS FRAUDULENT, WHAT THE AMOUNT OF SUPPORT FROM THE NON-INDIGENT
TAXPAYER ACTUALLY WAS, /1/  WHETHER THAT SUPPORT WAS STILL AVAILABLE AT
THE TIME THE WELFARE OFFICIALS LEARNED OF IT, OR EVEN WHETHER THE
CLAIMED DEPENDENT WAS STILL LIVING IN THE HOUSEHOLD.     THIS COURT
RECENTLY DECLARED UNCONSTITUTIONAL, UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, A CONNECTICUT STATUTE ESTABLISHING A PERMANENT,
CONCLUSIVE PRESUMPTION OF NONRESIDENCY FOR PURPOSES OF QUALIFYING FOR
REDUCED TUITION RATES AT A STATE UNIVERSITY. 

[[HC516'(ORIGINAL DOCUMENT PAGE 516)' VLANDIS V. KLINE, 412 U.S.
441.  AS WE SAID IN THAT CASE: 

"IN SUM, SINCE CONNECTICUT PURPORTS TO BE     CONCERNED WITH RESIDENCY
IN ALLOCATING THE RATES 

FOR TUITION AND FEES AT ITS UNIVERSITY SYSTEM, 

IT IS FORBIDDEN BY THE DUE PROCESS CLAUSE TO DENY 

AN INDIVIDUAL THE RESIDENT RATES ON THE BASIS OF A 

PERMANENT AND IRREBUTTABLE PRESUMPTION OF NONRESIDENCE, 

WHEN THAT PRESUMPTION IS NOT NECESSARILY OR UNIVERSALLY 

TRUE IN FACT, AND WHEN THE STATE HAS REASONABLE 

ALTERNATIVE MEANS OF MAKING THE CRUCIAL 

DETERMINATION.  RATHER, STANDARDS OF DUE PROCESS 

REQUIRE THAT THE STATE ALLOW SUCH AN INDIVIDUAL THE 

OPPORTUNITY TO PRESENT EVIDENCE SHOWING THAT HE IS A 

BONA FIDE RESIDENT ENTITLED TO THE IN-STATE RATES."  ID., 

AT 452.  SEE ALSO MORRISSEY V. BREWER, 408 U.S. 471; STANLEY V.
ILLINOIS, 405 U.S. 645; BELL V. BURSON, 402 U.S. 535. 

SIMILARLY, I THINK, THE CONCLUSIVE PRESUMPTION THAT LED TO THE
TERMINATION OF THE APPELLEES' BENEFITS WITHOUT ANY OPPORTUNITY FOR THEM
TO PROVE PRESENT NEED DENIED THEM DUE PROCESS OF LAW.  /2/
ACCORDINGLY, I CONCUR IN THE OPINION AND JUDGMENT OF THE COURT. 

[[HC517'(ORIGINAL DOCUMENT PAGE 517)' 

[[DFN 

/1/  EVEN IF THE AMOUNT OF SUPPORT RECEIVED FROM THE TAXPAYER LEAVES
THE HOUSEHOLD WITH INCOME BELOW THE INCOME ELIGIBILITY STANDARDS, THE
STATUTE UNDER CONSIDERATION WOULD TERMINATE BENEFITS.  A 5-PERSON
HOUSEHOLD, FOR EXAMPLE, MIGHT RECEIVE $120 IN PUBLIC ASSISTANCE EACH
MONTH, PLUS $121 FROM A DIVORCED NON-INDIGENT SPOUSE.  IF THAT
HOUSEHOLD HAD WITHIN IT A CHILD WHO WAS AGE 18 OR OLDER, AND IF THE
SPOUSE CLAIMED THAT CHILD AS A DEPENDENT, THE HOUSEHOLD WOULD BE
INELIGIBLE FOR FOOD STAMPS.  YET IN THIS HYPOTHETICAL SITUATION, THE
HOUSEHOLD'S MONTHLY INCOME WOULD BE $241, WHEREAS UNDER THE DEPARTMENT
OF AGRICULTURE'S OWN INCOME STANDARDS A HOUSEHOLD OF FIVE CAN EARN UP
TO $440 PER MONTH WITHOUT BEING DISQUALIFIED FOR FOOD STAMPS.  37
FED.REG.  7724.  THE OPINION OF THE COURT POINTS OUT HOW TOTALLY
ARBITRARY THE CHALLENGED STATUTE IS IN OPERATION. 

/2/  THE CONGRESS HAS ALTERNATIVE MEANS AVAILABLE TO IT BY WHICH ITS
PURPOSE CAN BE ACHIEVED.  THE FOOD STAMP ACT, AS AMENDED, ALREADY
PROVIDES THAT HOUSEHOLDS MUST DEMONSTRATE PRESENT NEEDINESS TO QUALIFY,
7 U.S.C. ^ 2014(B), AND THAT ITS MEMBERS MUST UNDER CERTAIN
CIRCUMSTANCES ACCEPT AVAILABLE EMPLOYMENT, ID., ^2014(C).  THERE IS NO
REASON THAT ENFORCEMENT OF THESE PROVISIONS CANNOT BE STRENGTHENED IF
THE CONGRESS BELIEVES THAT FRAUD IS TAKING PLACE.  THERE ARE ALREADY
CRIMINAL PENALTIES IN EFFECT FOR FRAUDULENT ACQUISITION, USE, OR
TRANSFER OF FOOD STAMPS.  7 U.S.C. ^^ 2023(B), (C). 

[[DOP 

MR. JUSTICE MARSHALL, CONCURRING. 

I JOIN THE OPINION OF THE COURT.  I WISH TO STATE BRIEFLY WHAT I
BELIEVE ARE THE ANALYTIC UNDERPINNINGS OF THAT OPINION.  ONE ASPECT OF
FUNDAMENTAL FAIRNESS, GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT, IS THAT INDIVIDUALS SIMILARLY SITUATED MUST RECEIVE THE SAME
TREATMENT BY THE GOVERNMENT.  AS MR. JUSTICE JACKSON PUT IT, THE
GOVERNMENT "MUST EXERCISE (ITS) POWERS SO AS NOT TO DISCRIMINATE
BETWEEN (ITS) INHABITANTS EXCEPT UPON SOME REASONABLE DIFFERENTIATION
FAIRLY RELATED TO THE OBJECT OF THE REGULATION."  RAILWAY EXPRESS
AGENCY V. NEW YORK, 336 U.S. 106, 112 (1949) (CONCURRING OPINION).  IT
IS A COROLLARY OF THIS REQUIREMENT THAT, IN ORDER TO DETERMINE WHETHER
PERSONS ARE INDEED SIMILARLY SITUATED, "SUCH PROCEDURAL PROTECTIONS AS
THE PARTICULAR SITUATION DEMANDS" MUST BE PROVIDED.  MORRISSEY V.
BREWER, 408 U.S. 471, 481 (1972).  SPECIFICALLY, WE MUST DECIDE
WHETHER, CONSIDERING THE PRIVATE INTEREST EFFECTED AND THE GOVERNMENTAL
INTEREST SOUGHT TO BE ADVANCED, A HEARING MUST BE PROVIDED TO ONE WHO
CLAIMS THAT THE APPLICATION OF SOME GENERAL PROVISION OF THE LAW AIMED
AT CERTAIN ABUSES WILL NOT IN FACT LOWER THE INCIDENCE OF THOSE ABUSES
BUT WILL INSTEAD NEEDLESSLY HARM HIM.  CF. REED V. REED, 404 U.S. 71
(1971); VLANDIS V. KLINE, 412 U.S. 441 (1973).  IN SHORT, WHERE THE
PRIVATE INTERESTS AFFECTED ARE VERY IMPORTANT AND THE GOVERNMENTAL
INTEREST CAN BE PROMOTED WITHOUT MUCH DIFFICULTY BY A WELL-DESIGNED
HEARING PROCEDURE, THE DUE PROCESS CLAUSE REQUIRES THE GOVERNMENT TO
ACT ON AN INDIVIDUALIZED BASIS, WITH GENERAL PROPOSITIONS SERVING ONLY
AS REBUTTABLE PRESUMPTIONS OR OTHER BURDEN-SHIFTING DEVICES. 

[[HC518'(ORIGINAL DOCUMENT PAGE 518)'  THAT, I THINK, IS THE IMPORT
OF STANLEY V. ILLINOIS, 405 U.S. 645 (1972). 

IS THIS, THEN, SUCH A CASE?  APPELLANTS ARGUE THAT CONGRESS COULD
RATIONALLY HAVE THOUGHT THAT PERSONS CLAIMED AS TAX DEPENDENTS BY A
TAXPAYER HIMSELF NOT A MEMBER OF AN ELIGIBLE HOUSEHOLD IN ONE YEAR
COULD, DURING THAT YEAR AND THE SUCCEEDING ONE, PROBABLY RECEIVE
SUFFICIENT FUNDS FROM THE TAXPAYER TO OFFSET THEIR NEED FOR FOOD
STAMPS.  IF THOSE PERSONS RECEIVED FOOD STAMPS, THEY WOULD BE DENYING
TO THE TRULY NEEDY SOME OF THE LIMITED BENEFITS CONGRESS HAS CHOSEN TO
MAKE AVAILABLE.  THE STATUTE, ON THIS VIEW, IS AIMED AT PREVENTING
ABUSE OF THE PROGRAM BY PERSONS WHO DO NOT NEED THE BENEFITS CONGRESS
HAS PROVIDED.  EVEN IF, AS APPELLANTS URGE, THE STATUTE IS INTERPRETED
TO MAKE INELIGIBLE FOR FOOD STAMPS ONLY THOSE PERSONS VALIDLY CLAIMED
AS TAX DEPENDENTS, SEE REPLY BRIEF FOR APPELLANTS 2 - 3, I DO NOT THINK
THAT CONGRESS ADOPTED A METHOD FOR PREVENTING ABUSE THAT IS REASONABLY
CALCULATED TO ELIMINATE ONLY THOSE WHO ABUSE THE PROGRAM.  IN
PARTICULAR, IT COULD NOT BE FAIRLY CONCLUDED THAT, BECAUSE ONE MEMBER
OF THE HOUSEHOLD HAD RECEIVED HALF HIS SUPPORT FROM A PARENT, THE
ENTIRE HOUSEHOLD'S NEED FOR ASSISTANCE IN PURCHASING FOOD COULD BE
OFFSET BY OUTSIDE CONTRIBUTIONS. 

IT IS, OF COURSE, QUITE SIMPLE FOR CONGRESS TO PROVIDE AN
ADMINISTRATIVE MECHANISM TO GUARANTEE THAT ABUSERS OF THE PROGRAM WERE
ELIMINATED FROM IT.  ALL THAT IS NEEDED IS SOME WAY FOR A PERSON WHOSE
HOUSEHOLD WOULD OTHERWISE BE INELIGIBLE FOR FOOD STAMPS BECAUSE OF THIS
STATUTE TO SHOW THAT THE SUPPORT PRESENTLY AVAILABLE FROM THE PERSON
CLAIMING A MEMBER OF THE HOUSEHOLD AS A TAX DEPENDENT DOES NOT IN FACT
OFFSET THE LOSS OF BENEFITS.  /1/  REASONABLE RULES STATING WHAT A
CLAIMANT MUST SHOW BEFORE RECEIVING A HEARING ON THE QUESTION COULD
EASILY BE DEVISED. 

HC519 WE DEAL HERE WITH A GENERAL RULE THAT MAY SERIOUSLY AFFECT THE
ABILITY OF PERSONS GENUINELY IN NEED TO PROVIDE AN ADEQUATE DIET FOR
THEIR HOUSEHOLDS.  IN THE FACE OF READILY AVAILABLE ALTERNATIVES THAT
MIGHT PREVENT ABUSE OF THE PROGRAM, CONGRESS DID NOT CHOOSE A METHOD OF
REDUCING ABUSES THAT WAS "FAIRLY RELATED TO THE OBJECT OF THE
REGULATION," BY ENACTING THE STATUTE CHALLENGED IN THIS CASE. 

THIS ANALYSIS, OF COURSE, COMBINES ELEMENTS TRADITIONALLY INVOKED IN
WHAT ARE USUALLY TREATED AS DISTINCT CLASSES OF CASES, INVOLVING DUE
PROCESS AND EQUAL PROTECTION.  BUT THE ELEMENTS OF FAIRNESS SHOULD NOT
BE SO RIGIDLY CABINED.  SOMETIMES FAIRNESS WILL REQUIRE A HEARING TO
DETERMINE WHETHER A STATUTORY CLASSIFICATION WILL ADVANCE THE
LEGISLATURE'S PURPOSES IN A PARTICULAR CASE SO THAT THE CLASSIFICATION
CAN PROPERLY BE USED ONLY AS A BURDEN- SHIFTING DEVICE, WHILE AT OTHER
TIMES THE FACT THAT A LITIGANT FALLS WITHIN THE CLASSIFICATION WILL BE
ENOUGH TO JUSTIFY ITS APPLICATION.  THERE IS NO REASON, I BELIEVE, TO
CATEGORIZE INFLEXIBLY THE RUDIMENTS OF FAIRNESS.  INSTEAD, I BELIEVE
THAT WE MUST ASSESS THE PUBLIC AND PRIVATE INTERESTS AFFECTED BY A
STATUTORY CLASSIFICATION AND THEN DECIDE IN EACH INSTANCE WHETHER
INDIVIDUALIZED DETERMINATION IS REQUIRED OR CATEGORICAL TREATMENT IS
PERMITTED BY THE CONSTITUTION. 

[[DFN 

/1/  SUCH A MECHANISM MUST BE MADE AVAILABLE, ON THE INTERPRETATION
OF THE STATUTE ADVANCED BY APPELLANTS, TO PERSONS WHO CONTEND THAT THEY
WERE NOT VALIDLY CLAIMED AS DEPENDENTS. 

[[DOP 

MR. JUSTICE BLACKMUN, DISSENTING. 

UNCONSTITUTIONAL, IS NOT HAPPILY DRAFTED AND SURELY IS NOT THE KIND OF
STATUTE THAT ATTRACTS SYMPATHETIC REVIEW. 

[[HC520'(ORIGINAL DOCUMENT PAGE 520)'  ITS PURPOSES, HOWEVER, ARE
CONCEDED TO BE LAUDATORY.  AND, INDEED, THEY ARE, FOR THE STATUTE SEEKS
TO PREVENT WIDESPREAD ABUSE OF THE FEDERAL FOOD STAMP PROGRAM BY
NONINDIGENTS AND COLLEGE STUDENTS, WITH CONSEQUENT DENIAL OF THE FULL
BENEFIT OF THE PROGRAM TO THOSE SERIOUSLY IN NEED OF ASSISTANCE. 

THE COURT, HOWEVER, INVALIDATES ^ 5(B) FOR, APPARENTLY, TWO REASONS. 
THE FIRST IS THAT TAX DEPENDENCY IN ONE CALENDAR YEAR IS TIED TO THE
SUBJECT'S LACK OF NEED IN THE FOLLOWING YEAR, AND THIS, IT IS SAID, HAS
NO RATIONAL CONNECTION.  THE SECOND, ALTHOUGH IT MAY NOT BE CLEARLY
ARTICULATED, IS THAT ALL THAT IS NEEDED TO DISQUALIFY A HOUSEHOLD IS
THE PRESENCE IN IT OF A PERSON OVER 18 WHO IS CLAIMED AS A DEPENDENT
FOR FEDERAL INCOME TAX PURPOSES BY SOMEONE OUTSIDE THE HOUSEHOLD.  THAT
THIS IS A REASON IS QUITE APPARENT FROM THE COURT'S SPECIAL EMPHASIS ON
THE CLAIMS OF DEPENDENCY SAID TO HAVE BEEN ASSERTED BY THE FATHER OR
PARENTS OF APPELLEES VALDEZ, BRODERSON, AND SCHULTZ, EVEN THOUGH THE
PARENT OR PARENTS, ACCORDING TO AFFIDAVITS, GAVE "NO SUPPORT"  OR
REFUSED TO GIVE "ANY AID," TO USE THE COURT'S WORDS, ANTE, AT 511. 

FOR ME, NEITHER REASON IS PERSUASIVE.  AS I READ ^ 5(B) OF THE ACT,
SEE ID., AT 509 N. 1, THE YEARS OF INELIGIBILITY FOR FOOD STAMPS ARE
"THE TAX PERIOD SUCH DEPENDENCY IS CLAIMED" AND THE YEAR THAT FOLLOWS. 
THEY ARE NOT THE LATTER YEAR AND THE ONE SUBSEQUENT THERETO, AS THE
COURT SEEMS TO INDICATE.  I CONFESS THAT THERE MUST BE SOME PRACTICAL
AWKWARDNESS IN RELATING THE FOOD STAMP YEAR TO THE TAX DEPENDENCY YEAR,
FOR ONE OFTEN CANNOT KNOW THAT HE IS BEING CLAIMED AS A TAX DEPENDENT
FOR A GIVEN YEAR UNTIL THE CLAIMANT FILES HIS INCOME TAX RETURN FOR
THAT YEAR SOME TIME AFTER ITS CLOSE.  DESPITE THIS FACT, THE STATUTE,
FOR ME, IS CLEAR AND, AT LEAST, ACCEPTABLE, AND I WOULD NOT REWRITE IT
ON A PRAGMATIC BASIS, AS, I THINK, THE COURT HAS DONE. 

[[HC521'(ORIGINAL DOCUMENT PAGE 521)'  FURTHERMORE, THE "YEAR AFTER"
PROVISION IS NOT WITHOUT RATIONAL BASIS, FOR CONGRESS, IN ALLOCATING
LIMITED RESOURCES, HAS DETERMINED THAT BY THIS MEANS IT RECOUPS IN THE
LATER YEAR THE LOSS SUSTAINED IN THE EARLIER YEAR WHEN FOOD STAMPS WERE
IMPROPERLY CLAIMED. 

MY SECOND CONCERN CENTERS IN THE MEANING OF THE WORDS, "WHO IS
CLAIMED AS A DEPENDENT CHILD FOR FEDERAL INCOME TAX PURPOSES,"  IN
^5(B) OF THE ACT.  I CANNOT BELIEVE THAT THE MERE FACT OF CLAIMING IS
SUFFICIENT OR THAT THAT IS WHAT CONGRESS INTENDED.  IT SEEMS OBVIOUS TO
ME THAT "CLAIMED" IN THIS CONTEXT HAS ONLY ONE MEANING, THAT IS,
PROPERLY CLAIMED FOR INCOME TAX PURPOSES, AND NOT THE MERE ASSERTION OF
DEPENDENCY IN THE RETURN.  THIS WOULD BE THE SENSIBLE CONSTRUCTION OF
THE STATUTE.  IT IS OBVIOUS AND CLEAR, FROM THE COURT'S DESCRIPTION OF
THE VALDEZ, BRODERSON, AND SCHULTZ SITUATIONS, ANTE, AT 510 - 511, THAT
THE PARENT OR PARENTS WHO CLAIMED THOSE APPELLEES AS INCOME TAX
DEPENDENTS WERE NOT AT ALL ENTITLED TO MAKE THOSE CLAIMS.  THEY CLEARLY
DID NOT SATISFY THE REQUIREMENTS OF ^ 151(E) OF THE INTERNAL REVENUE
CODE OF 1954, 26 U.S.C. ^ 151(E).  VALDEZ' PROBLEM IS WITH HIS FATHER,
NOT WITH THE FOOD STAMP PROGRAM, IF THE FACTS THE COURT STATES ARE
ACCURATE.  THE SAME IS TRUE OF BRODERSON.  THE SAME IS TRUE OF
SCHULTZ. 

EACH OF THESE ASPECTS, WHICH THE COURT CHOOSES NOT TO ANALYZE AND
PREFERS, INSTEAD, TO RESOLVE BY CONVENIENT NULLIFICATION OF THE
STATUTE, COULD BE HANDLED BY AN APPROPRIATE HEARING DIRECTED TO THE
ASCERTAINMENT OF THE ACTUAL FACTS.  IN THAT HEARING IT MAY BE SHOWN
WHETHER JOE VALDEZ, IN FACT, "RECEIVES NO SUPPORT FROM BEN."  IF THIS
BE TRUE, JOE SHOULD NOT AUTOMATICALLY BE INELIGIBLE FOR THE PROGRAM,
AND BEN'S IMPROPER CLAIM OF JOE AS AN INCOME TAX DEPENDENT SHOULD HAVE
NO FOOD STAMP CONSEQUENCE WHATSOEVER.  SO IT WOULD BE WITH APPELLEES
BRODERSON AND SCHULTZ. 

[[HC522'(ORIGINAL DOCUMENT PAGE 522)'  THE SAME MAY BE TRUE AS TO
THE REMAINING APPELLEES WITH RESPECT TO WHOM CLAIMS OF DEPENDENCY
STATUS, ON THE AFFIDAVITS FILED, ARE AT LEAST QUESTIONABLE. 

I, THEREFORE, WOULD VACATE THE JUDGMENT OF THE DISTRICT COURT AND
REMAND THE CASE FOR A HEARING DIRECTED TO THE DEVELOPMENT OF THE
UNDERLYING FACTS IN THE LIGHT OF ^ 5(B) OF THE FOOD STAMP ACT AND OF ^
151(E) OF THE 1954 INTERNAL REVENUE CODE, AND FOR THE ENTRY OF A NEW
JUDGMENT IN THE LIGHT OF THOSE 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
POWELL CONCUR, DISSENTING. 

APPELLEES CHALLENGE ON CONSTITUTIONAL GROUNDS A SECTION OF THE MOST
RECENT CONGRESSIONAL REVISION OF THE FOOD STAMP ACT, 7 U.S.C. ^ 2011 ET
SEQ., WHEREBY HOUSEHOLDS CONTAINING PERSONS 18 YEARS OR OLDER WHO HAVE
BEEN CLAIMED AS "DEPENDENTS"  FOR INCOME TAX PURPOSES ARE MADE
INELIGIBLE TO RECEIVE FOOD STAMPS.  THE COURT'S OPINION SUSTAINS THIS
CHALLENGE.  REFERRING TO WHAT IT CONCEIVES TO BE THE LEGISLATIVE AIM IN
ENACTING SUCH A LIMITATION, ,A CONCERN ABOUT ABUSES OF THE PROGRAM BY
'COLLEGE STUDENTS, CHILDREN OF WEALTHY PARENTS,'" THE OPINION STATES
THAT "THE ACT GOES FAR BEYOND THAT GOAL AND ITS OPERATION IS
INFLEXIBLE," ANTE, AT 513. 

NOTIONS THAT IN DISPENSING PUBLIC FUNDS TO THE NEED CONGRESS MAY NOT
IMPOSE LIMITATIONS WHICH "GO BEYOND THE GOAL" OF CONGRESS, OR MAY NOT
BE "INFLEXIBLE," HAVE NOT HERETOFORE BEEN THOUGHT TO BE EMBODIED IN THE
CONSTITUTION.  IN DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), THE COURT
REJECTED THIS APPROACH IN AN AREA OF WELFARE LEGISLATION THAT IS
INDISTINGUISHABLE FROM THE FOOD STAMP PROGRAM HERE INVOLVED.  THERE THE
DISTRICT COURT, IN THE WORDS OF THIS COURT,     [[HC523'(ORIGINAL
DOCUMENT PAGE 523)' 

"WHILE APPARENTLY RECOGNIZING THE VALIDITY OF AT LEAST SOME OF THESE
STATE CONCERNS, NONETHELESS HELD THAT THE REGULATION 'IS INVALID ON ITS
FACE FOR OVERREACHING,'  297 F.SUPP., AT 468--THAT IT VIOLATES THE
EQUAL PROTECTION CLAUSE '(BECAUSE IT CUTS TOO BROAD A SWATH ON AN
INDISCRIMINATE BASIS AS APPLIED TO THE ENTIRE GROUP OF AFDC ELIGIBLES
TO WHICH IT PURPORTS TO APPLY . . . .'"  ID., AT 484.  APPLYING THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO STATE ACTION,
THE COURT REVERSED THE DISTRICT COURT AND HELD: 

"(THE CONCEPT OF 'OVERREACHING' HAS NO PLACE IN THIS CASE.  FOR HERE
WE DEAL WITH STATE REGULATION IN THE SOCIAL AND ECONOMIC FIELD, NOT
EFFECTING FREEDOMS GUARANTEED BY THE BILL OF RIGHTS, AND CLAIMED TO
VIOLATE THE FOURTEENTH AMENDMENT ONLY BECAUSE THE REGULATION RESULTS IN
SOME DISPARITY IN GRANTS OF WELFARE PAYMENTS TO THE LARGEST AFDC
FAMILIES.  FOR THIS COURT TO APPROVE THE INVALIDATION OF STATE ECONOMIC
OR SOCIAL REGULATION AS 'OVERREACHING' WOULD BE FAR TOO REMINISCENT OF
AN ERA WHEN THE COURT THOUGHT THE FOURTEENTH AMENDMENT GAVE IT POWER TO
STRIKE DOWN STATE LAWS 'BECAUSE THEY MAY BE UNWISE, IMPROVIDENT, OR OUT
OF HARMONY WITH A PARTICULAR SCHOOL OF THOUGHT'.  . . . 

     "IN THE AREA OF ECONOMICS AND SOCIAL WELFARE, A STATE DOES NOT

  VIOLATE THE EQUAL PROTECTION CLAUSE MERELY BECAUSE THE

  CLASSIFICATIONS MADE BY ITS LAWS ARE IMPERFECT.  IF THE

  CLASSIFICATION HAS SOME 'REASONABLE BASIS,' IT DOES NOT OFFEND

  THE CONSTITUTION SIMPLY BECAUSE THE CLASSIFICATION 'IS NOT MADE

  WITH MATHEMATICAL NICETY OR BECAUSE IN PRACTICE IT RESULTS IN

  SOME INEQUALITY.'  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S.

  61, 78."  ID., AT 484 - 485. 

IN PLACING THE LIMITATIONS ON THE AVAILABILITY OF FOOD STAMPS WHICH
ARE INVOLVED IN THIS CASE, CONGRESS HAS NOT IN ANY REASONED SENSE OF
THAT WORD EMPLOYED A CONCLUSIVE PRESUMPTION AS STATED BY THE MAJORITY,
ANTE, AT 511, 512, AND MR. JUSTICE STEWART IN HIS CONCURRING OPINION,
ANTE, AT 516; IT HAS SIMPLY MADE A LEGISLATIVE DECISION THAT CERTAIN
ABUSES WHICH IS CONCEIVED TO EXIST IN THE PROGRAM AS PREVIOUSLY
ADMINISTERED WERE OF SUFFICIENT SERIOUSNESS TO WARRANT THE SUBSTANTIVE
LIMITATION WHICH IT ENACTED. 

[[HC524'(ORIGINAL DOCUMENT PAGE 524)'  THERE IS A QUALITATIVE
DIFFERENCE BETWEEN, ON THE ONE HAND, HOLDING UNCONSTITUTIONAL ON
PROCEDURAL DUE PROCESS GROUNDS PRESUMPTIONS WHICH CONCLUDE FACTUAL
INQUIRIES WITHOUT A HEARING ON SUCH QUESTIONS AS FAULT, BELL V. BURSON,
402 U.S. 535 (1971), THE FITNESS OF AN UNWED FATHER TO BE A PARENT,
STANLEY V. ILLINOIS, 405 U.S. 645 (1972, OR, ACCEPTING THE MAJORITY'S
CHARACTERIZATION IN VLANDIS V. KLINE, 412 U.S. 441 (1973, RESIDENCY,
AND, ON THE OTHER HAND, HOLDING UNCONSTITUTIONAL A DULY ENACTED
PROPHYLACTIC LIMITATION ON THE DISPENSATION OF FUNDS WHICH IS DESIGNED
TO CURE SYSTEMIC ABUSES.  CF. MOURNING V. FAMILY PUBLICATIONS SERVICE,
INC., 411 U.S. 356 (1973); GINSBERG V. NEW YORK, 390 U.S. 629, 643,
(1968). 

THUS, WE DEAL NOT WITH THE LAW OF EVIDENCE, BUT WITH THE EXTENT TO
WHICH THE FIFTH AMENDMENT PERMITS THIS COURT TO INVALIDATE SUCH A
DETERMINATION BY CONGRESS.  IN WILLIAMSON V. LEE OPTICAL CO., 348 U.S.
483, 487 - 488 (1955), THE COURT SAID: 

"BUT THE LAW NEED NOT BE IN EVERY RESPECT LOGICALLY CONSISTENT WITH
ITS AIMS TO BE CONSTITUTIONAL.  IT IS ENOUGH THAT THERE IS AN EVIL AT
HAND FOR CORRECTION, AND THAT IT MIGHT BE THOUGHT THAT THE PARTICULAR
LEGISLATIVE MEASURE WAS A RATIONAL WAY TO CORRECT IT."  ACCORD,
DANDRIDGE V. WILLIAMS, SUPRA; FERGUSON V. SKRUPA, 372 U.S. 726 (1963);
FLEMMING V. NESTOR, 363 U.S. 603, 611 - 612 (1960). 

THE MAJORITY CONCLUDES THAT A "DEDUCTION TAKEN FOR THE BENEFIT OF
THE PARENT IN THE PRIOR YEAR IS NOT A RATIONAL MEASURE OF THE NEED OF A
DIFFERENT HOUSEHOLD WITH WHICH THE CHILD OF THE TAX-DEDUCTING PARENT
LIVES."  ANTE, AT 524. 

[[HC525'(ORIGINAL DOCUMENT PAGE 525)'  BUT JUDGED BY THE STANDARDS
OF THE FOREGOING CASES, THE CHALLENGED PROVISION OF THE FOOD STAMP ACT
HAS A LEGITIMATE PURPOSE AND CANNOT BE SAID TO LACK ANY RATIONAL
BASIS.  SECTION 5(B) DECLARES INELIGIBLE FOR FOOD STAMPS "(ANY
HOUSEHOLD WHICH INCLUDES A MEMBER WHO HAS REACHED HIS EIGHTEENTH
BIRTHDAY AND WHO IS CLAIMED AS A DEPENDENT CHILD FOR FEDERAL INCOME TAX
PURPOSES BY A TAXPAYER WHO IS NOT A MEMBER OF AN ELIGIBLE HOUSEHOLD." 
THUS, IN ORDER TO DISQUALIFY A HOUSEHOLD FOR FOOD STAMPS, THE TAXPAYER
CLAIMING ONE OF ITS MEMBERS AS A DEPENDENT MUST BOTH PROVIDE OVER HALF
OF THE DEPENDENT'S SUPPORT AND MUST HIMSELF BE A MEMBER OF A HOUSEHOLD
WITH AN INCOME LARGE ENOUGH TO DISQUALIFY THAT HOUSEHOLD FOR FOOD
STAMPS.  THESE CHARACTERISTICS INDICATE THAT THE TAXPAYER IS BOTH
WILLING AND ABLE TO PROVIDE HIS DEPENDENT WITH A SIGNIFICANT AMOUNT OF
SUPPORT.  TO BE SURE, THERE MAY BE NO PERFECT CORRELATION BETWEEN THE
FACT THAT THE TAXPAYER IS PART OF A HOUSEHOLD WHICH HAS INCOME
EXCEEDING FOOD STAMP ELIGIBILITY STANDARDS AND HIS PROVISION OF ENOUGH
SUPPORT TO RAISE HIS DEPENDENT'S HOUSEHOLD ABOVE SUCH STANDARDS.  BUT
THERE IS SOME CORRELATION, AND THE PROVISION IS, THEREFORE, NOT
IRRATIONAL.  DANDRIDGE V. WILLIAMS, SUPRA.  /1/ 

NOR IS 5(B) DEPRIVED OF A RATIONAL BASIS BECAUSE DISQUALIFICATION OF
THE HOUSEHOLD EXTENDS ONE YEAR BEYOND THE YEAR IN WHICH THE DEPENDENCY
DEDUCTION IS CLAIMED.  SINCE INCOME TAX RETURNS ARE NOT FILED UNTIL
AFTER THE TERMINATION OF THE TAX YEAR, THE CARRYOVER PROVISION IS THE
ONLY PRACTICAL MEANS OF ENFORCING THE CONGRESSIONAL PURPOSE UNLESS
CONGRESS WERE TO ESTABLISH AN ADMINISTRATIVE ADJUDICATION PROCEDURE
WHOLLY INDEPENDENT OF THE EXISTING TAX COLLECTION STRUCTURE.  SUCH AN
ALTERNATIVE SYSTEM WOULD DOUBTLESS HAVE ITS OWN DELAYS, INEFFICIENCIES,
AND INEQUITIES.  UNDER THESE CIRCUMSTANCES WE CANNOT SAY THAT CONGRESS
ACTED IRRATIONALLY IN JUDGING A PERSON'S NEED IN ONE YEAR BY WHETHER HE
WAS CLAIMED AS A TAX DEPENDENT IN THE PREVIOUS YEAR. 

FINALLY, THE FACT THAT THE STATUTE AS PRESENTLY ADMINISTERED MAY
OPERATE TO DENY FOOD STAMPS ON THE BASIS OF FRAUDULENT AS WELL AS
LAWFUL DEPENDENCY DEDUCTION CLAIMS DOES NOT, AS SUGGESTED BY THE THREE
JUDGE DISTRICT COURT, 348 F.SUPP.  242, 243 (DC 1972), RENDER IT
UNCONSTITUTIONAL.  A FALSE DEPENDENCY CLAIM SUBJECTS THE TAXPAYER TO
BOTH CIVIL AND CRIMINAL PENALTIES, AND CONGRESS MAY REASONABLY PROCEED
ON THE ASSUMPTION THAT TAXPAYERS WILL OBEY THE LAW. 

THE PRIOR HOLDINGS OF THE COURT CONVINCE ME THAT THIS LIMITATION
WHICH CONGRESS HAS PLACED ON THE AVAILABILITY OF FOOD STAMPS DOES NOT
VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT AND I THEREFORE
DISSENT FROM THE COURT'S AFFIRMANCE OF THE JUDGMENT OF THE DISTRICT
COURT. 

[[DFN 

/1/  THE COURT'S OPINION MAKES MUCH OF THE FACTS THAT THERE MAY BE
NO RELATIONSHIP BETWEEN THE TAX DEPENDENT'S PARENT AND THE REMAINING
MEMBERS OF THE HOUSEHOLD, THAT THEY MAY BE COMPLETELY DESTITUTE, AND
THAT THEY MAY BE ONE OR 10 OR 20.  ANTE, AT 514.  SECTION 3(E) OF THE
FOOD STAMP ACT, 7 U.S.C. ^ 2012(E), PROVIDES IN RELEVANT PART: 

"THE TERM 'HOUSEHOLD' SHALL MEAN A GROUP OF . . . INDIVIDUALS . . .
WHO . . . ARE LIVING AS ONE ECONOMIC UNIT . . . . "  IN ITS
INSTRUCTIONS TO THE STATE AGENCIES ADMINISTERING THE FOOD STAMP
PROGRAM, THE DEPARTMENT OF AGRICULTURE'S FOOD AND NUTRITION SERVICE
DEFINES "ECONOMIC UNIT" AS MEANING THAT "THE COMMON LIVING EXPENSES ARE
SHARED FROM THE INCOME AND RESOURCES OF ALL MEMBERS AND THAT THE BASIC
NEEDS OF ALL MEMBERS ARE PROVIDED FOR WITHOUT REGARD TO THEIR ABILITY
OR WILLINGNESS TO CONTRIBUTE."  (REPLY BRIEF FOR APPELLANTS IN NO. 72
534, O.T. 1972, UNITED STATES DEPARTMENT OF AGRICULTURE V. MORENO, 9 N.
19.) 

THE MAJORITY DOES NOT QUESTION THAT CONGRESS COULD RATIONALLY SO
CHOOSE TO DISPENSE WELFARE BENEFITS TO ,ECONOMIC UNITS" RATHER THAN TO
INDIVIDUALS.  DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970).  SINCE THE
RESOURCES OF THE HOUSEHOLD MEMBER CLAIMED AS A TAX DEPENDENT ARE BY
DEFINITION AVAILABLE TO THE ENTIRE HOUSEHOLD, IT IS RATIONAL TO
DISQUALIFY SUCH UNITS CONTAINING INELIGIBLE TAX DEPENDENTS. 

KEITH A. JONES ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WOOD, WALTER H. FLEISCHER, AND WILLIAM KANTER. 

RONALD F. POLLACK ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS ROGER A. SCHWARTZ. 
..END :
























UNITED STATES DEPARTMENT OF AGRICULTURE ET AL V. MORENO ET AL. 413 U.S.
528 



       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA 

     NO. 72 - 534.  ARGUED APRIL 23, 1973--DECIDED JUNE 25, 1973;
345 F. SUPP. 310, AFFIRMED. 


    SECTION 3(E) OF THE FOOD STAMP ACT OF 1964, AS AMENDED,

  GENERALLY EXCLUDES FROM PARTICIPATION IN THE FOOD STAMP PROGRAM

  ANY HOUSEHOLD CONTAINING AN INDIVIDUAL WHO IS UNRELATED TO ANY

  OTHER HOUSEHOLD MEMBER.  THE SECRETARY OF AGRICULTURE ISSUED

  REGULATIONS THEREUNDER RENDERING INELIGIBLE FOR PARTICUPATION IN

  THE PROGRAM ANY "HOUSEHOLD"  WHOSE MEMBERS ARE NOT "ALL RELATED

  TO EACH OTHER."  CONGRESS STATED THAT THE PURPOSES OF THE ACT

  WERE "TO SAFEGUARD THE HEALTH AND WELL-BEING OF THE NATION'S

  POPULATION AND RAISE LEVELS OF NUTRITION AMONG LOW-INCOME

  HOUSEHOLDS . . . (AND) THAT INCREASED UTILIZATION OF FOOD IN

ESTABLISHING AND MAINTAINING ADEQUATE NATIONAL LEVELS OF

NUTRITION WILL PROMOTE THE DISTRIBUTION . . . OF OUR AGRICULTURAL

  ABUNDANCE AND WILL STRENGTHEN OUR AGRICULTURAL ECONOMY . . . . "

  THE DISTRICT COURT HELD THAT THE "UNRELATED PERSON" PROVISION OF

  ^ 3(E) CREATES AN IRRATIONAL CLASSIFICATION IN VIOLATION OF THE

  EQUAL PROTECTION COMPONENT OF THE DUE PROCESS CLAUSE OF THE FIFTH

  AMENDMENT.  HELD:  THE LEGISLATIVE CLASSIFICATION HERE INVOLVED

  CANNOT BE SUSTAINED, THE CLASSIFICATION BEING CLEARLY IRRELEVANT

TO THE STATED PURPOSES OF THE ACT AND NOT RATIONALLY FURTHERING

  ANY OTHER LEGITIMATE GOVERNMENTAL INTEREST.  IN PRACTICAL

  OPERATION, THE ACT EXCLUDES, NOT THOSE WHO ARE "LIKELY TO ABUSE

  THE PROGRAM," BUT, RATHER, ONLY THOSE WHO SO DESPERATELY NEED AID

  THAT THEY CANNOT EVEN AFFORD TO ALTER THEIR LIVING ARRANGEMENTS

  SO AS TO RETAIN THEIR ELIGIBILITY.  PP. 533 - 538. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, MARSHALL, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS,
J., FILED A CONCURRING OPINION, POST, P. 538.  REHNQUIST, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C.J., JOINED, POST.  P. 545. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US TO CONSIDER THE CONSTITUTIONALITY OF ^ 3(E) OF
THE FOOD STAMP ACT OF 1964, AS AMENDED, 84 STAT. 2048, 7 U.S.C. ^
2012(E), WHICH, WITH CERTAIN EXCEPTIONS, EXCLUDES FROM PARTICIPATION IN
THE FOOD STAMP PROGRAM ANY HOUSEHOLD CONTAINING AN INDIVIDUAL WHO IS
UNRELATED TO ANY OTHER MEMBER OF THE HOUSEHOLD.  IN PRACTICAL EFFECT, ^
3(E) CREATES TWO CLASSES OF PERSONS FOR FOOD STAMP PURPOSES:  ONE CLASS
IS COMPOSED OF THOSE INDIVIDUALS WHO LIVE IN HOUSEHOLDS ALL OF WHOSE
MEMBERS ARE RELATED TO ONE ANOTHER, AND THE OTHER CLASS CONSISTS OF
THOSE INDIVIDUALS WHO LIVE IN HOUSEHOLDS CONTAINING ONE OR MORE MEMBERS
WHO ARE UNRELATED TO THE REST.  THE LATTER CLASS OF PERSONS IS DENIED
FEDERAL FOOD ASSISTANCE.  A THREE-JUDGE DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA HELD THIS CLASSIFICATION INVALID AS VIOLATIVE OF THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  345 F.SUPP.  310 (1972).  WE
NOTED PROBABLE JURISDICTION.  409 U.S. 1036 (1972).  WE AFFIRM. 

        I 

THE FEDERAL FOOD STAMP PROGRAM WAS ESTABLISHED IN 1964 IN AN EFFORT
TO ALLEVIATE HUNGER AND MALNUTRITION AMONG THE MORE NEEDY SEGMENTS OF
OUR SOCIETY.  7 U.S.C. ^ 2011.  ELIGIBILITY FOR PARTICIPATION IN THE
PROGRAM IS DETERMINED ON A HOUSEHOLD RATHER THAN AN INDIVIDUAL BASIS. 
7 CFR ^ 271.3(A).  AN ELIGIBLE HOUSEHOLD PURCHASES SUFFICIENT FOOD
STAMPS TO PROVIDE THAT HOUSEHOLD WITH A NUTRITIONALLY ADEQUATE DIET. 
THE HOUSEHOLD PAYS FOR THE STAMPS AT A REDUCED RATE BASED UPON ITS SIZE
AND CUMULATIVE INCOME.  THE FOOD STAMPS ARE THEN USED TO PURCHASE FOOD
AT RETAIL STORES, AND THE GOVERNMENT REDEEMS THE STAMPS AT FACE VALUE,
THEREBY PAYING THE DIFFERENCE BETWEEN THE ACTUAL COST OF THE FOOD AND
THE AMOUNT PAID BY THE HOUSEHOLD FOR THE STAMPS.  SEE 7 U.S.C. ^^
2013(A), 2016, 2025(A). 

[[HC530'(ORIGINAL DOCUMENT PAGE 530)' 

AS INITIALLY ENACTED, ^ 3(E) DEFINED AS A "HOUSEHOLD" "A GROUP OF
RELATED OR NON-RELATED INDIVIDUALS, WHO ARE NOT RESIDENTS OF AN
INSTITUTION OR BOARDING HOUSE, BUT ARE LIVING AS ONE ECONOMIC UNIT
SHARING COMMON COOKING FACILITIES AND FOR WHOM FOOD IS CUSTOMARILY
PURCHASED IN COMMON."  /1/  IN JANUARY 1971, HOWEVER, CONGRESS
REDEFINED THE TERM "HOUSEHOLD" SO AS TO INCLUDE ONLY GROUPS OF RELATED
INVIDIDUALS.  /2/  PURSUANT TO THIS AMENDMENT, THE SECRETARY OF
AGRICULTURE PROMULGATED REGULATIONS RENDERING INELIGIBLE FOR
PARTICIPATION IN THE PROGRAM ANY "HOUSEHOLD"  WHOSE MEMBERS ARE NOT
"ALL RELATED TO EACH OTHER."  /3/ 

APPELLEES IN THIS CASE CONSIST OF SEVERAL GROUPS OF INDIVIDUALS WHO
ALLEGE THAT, ALTHOUGH THEY SATISFY THE INCOME ELIGIBILITY REQUIREMENTS
FOR FEDERAL FOOD ASSISTANCE, THEY HAVE NEVERTHELESS BEEN EXCLUDED FROM
THE PROGRAM SOLELY BECAUSE THE PERSONS IN EACH GROUP ARE NOT "ALL
RELATED TO EACH OTHER." 

[[HC531'(ORIGINAL DOCUMENT PAGE 531)'  APPELLEE JACINTA MORENO, FOR
EXAMPLE, IS A 56-YEAR-OLD DIABETIC WHO LIVES WITH ERMINA SANCHEZ AND
THE LATTER'S THREE CHILDREN.  THEY SHARE COMMON LIVING EXPENSES, AND
MRS. SANCHEZ HELPS TO CARE FOR APPELLEE.  APPELLEE'S MONTHLY INCOME,
DERIVED FROM PUBLIC ASSISTANCE, IS $75; MRS. SANCHEZ RECEIVES $133 PER
MONTH FROM PUBLIC ASSISTANCE.  THE HOUSEHOLD PAYS $135 PER MONTH FOR
RENT, GAS, AND ELECTRICITY, OF WHICH APPELLEE PAYS $50.  APPELLEE
SPENDS $10 PER MONTH FOR TRANSPORTATION TO A HOSPITAL FOR REGULAR
VISITS, AND $5 PER MONTH FOR LAUNDRY.  THAT LEAVES HER $10 PER MONTH
FOR FOOD AND OTHER NECESSITIES.  DESPITE HER POVERTY, APPELLEE HAS BEEN
DENIED FEDERAL FOOD ASSISTANCE SOLELY BECAUSE SHE IS UNRELATED TO THE
OTHER MEMBERS OF HER HOUSEHOLD.  MOREOVER, ALTHOUGH MRS. SANCHEZ AND
HER THREE CHILDREN WERE PERMITTED TO PURCHASE $108 WORTH OF FOOD STAMPS
PER MONTH FOR $18, THEIR PARTICIPATION IN THE PROGRAM WILL BE
TERMINATED IF APPELLEE MORENO CONTINUES TO LIVE WITH THEM. 

APPELLEE SHEILAH HEJNY IS MARRIED AND HAS THREE CHILDREN.  ALTHOUGH
THE HEJNYS ARE INDIGENT, THEY TOOK IN A 20-YEAR-OLD GIRL, WHO IS
UNRELATED TO THEM, BECAUSE "WE FELT SHE HAD EMOTIONAL PROBLEMS." 

[[HC532'(ORIGINAL DOCUMENT PAGE 532)'  THE HEJNYS RECEIVE $144 WORTH
OF FOOD STAMPS EACH MONTH FOR $14.  IF THEY ALLOW THE 20-YEAR-OLD GIRL
TO CONTINUE TO LIVE WITH THEM, THEY WILL BE DENIED FOOD STAMPS BY
REASON OF ^ 3(E). 

APPELLEE VICTORIA KEPPLER HAS A DAUGHTER WITH AN ACUTE HEARING
DEFICIENCY.  THE DAUGHTER REQUIRES SPECIAL INSTRUCTION IN A SCHOOL FOR
THE DEAF.  THE SCHOOL IS LOCATED IN AN AREA IN WHICH APPELLEE COULD NOT
ORDINARILY AFFORD TO LIVE.  THUS, IN ORDER TO MAKE THE MOST OF HER
LIMITED RESOURCES, APELLEE AGREED TO SHARE AN APARTMENT NEAR THE SCHOOL
WITH A WOMAN WHO, LIKE APPELLEE, IS ON PUBLIC ASSISTANCE.  SINCE
APPELLEE IS NOT RELATED TO THE WOMAN, APPELLEE'S FOOD STAMPS WILL BE
CUT OFF IF THEY CONTINUE TO LIVE TOGETHER. 

THESE AND TWO OTHER GROUPS OF APPELLEES INSTITUTED A CLASS ACTION
AGAINST THE DEPARTMENT OF AGRICULTURE, ITS SECRETARY, AND TWO OTHER
DEPARTMENTAL OFFICIALS, SEEKING DECLARATORY AND INJUNCTIVE RELIEF
AGAINST THE ENFORCEMENT OF THE 1971 AMENDMENT OF ^ 3(E) AND ITS
IMPLEMENTING REGULATIONS.  IN ESSENCE, APPELLEES CONTEND, /4/  AND THE
DISTRICT COURT HELD, THAT THE "UNRELATED PERSON" PROVISION OF ^ 3(E)
CREATES AN IRRATIONAL CLASSIFICATION IN VIOLATION OF THE EQUAL
PROTECTION COMPONENT OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 
/5/  WE AGREE. 

        II 

UNDER TRADITIONAL EQUAL PROTECTION ANALYSIS, A LEGISLATIVE
CLASSIFICATION MUST BE SUSTAINED IF THE CLASSIFICATION ITSELF IS
RATIONALLY RELATED TO A LEGITIMATE GOVERNMENTAL INTEREST.  SEE
JEFFERSON V. HACKNEY, 406 U.S. 535, 546 (1972); RICHARDSON V. BELCHER,
404 U.S. 78, 81 (1971); DANDRIDGE V. WILLIAMS, 397 U.S. 471, 485
(1970); MCGOWAN V. MARYLAND, 366 U.S. 420, 426 (1961^ .  THE PURPOSES
OF THE FOOD STAMP ACT WERE EXPRESSLY SET FORTH IN THE CONGRESSIONAL
"DECLARATION OF POLICY": 

"IT IS HEREBY DECLARED TO BE THE POLICY OF CONGRESS . . . TO 

SAFEGUARD THE HEALTH AND WELL-BEING OF THE NATION'S POPULATION 

AND RAISE LEVELS OF NUTRITION AMONG LOW-INCOME HOUSEHOLDS.  THE 

CONGRESS HEREBY FINDS THAT THE LIMITED FOOD PURCHASING POWER 

OF LOW-INCOME HOUSEHOLDS CONTRIBUTES TO HUNGER AND 

MALNUTRITION AMONG MEMBERS OF SUCH HOUSEHOLDS.  THE 

CONGRESS FURTHER FINDS THAT INCREASED UTILIZATION OF 

FOOD IN ESTABLISHING AND MAINTAINING ADEQUATE NATIONAL 

LEVELS OF NUTRITION WILL PROMOTE THE DISTRIBUTION IN 

A BENEFICIAL MANNER OF OUR AGRICULTURAL ABUNDANCES 

AND WILL STRENGTHEN OUR AGRICULTURAL ECONOMY, AS WELL 

AS RESULT IN MORE ORDERLY MARKETING AND DISTRIBUTION 

OF FOOD.  TO ALLEVIATE SUCH HUNGER AND MALNUTRITION, 

A FOOD STAMP PROGRAM IS HEREIN AUTHORIZED WHICH WILL 

PERMIT LOW-INCOME HOUSEHOLDS TO PURCHASE A NUTRITIONALLY 

ADEQUATE DIET THROUGH NORMAL CHANNELS OF TRADE."  7 U.S.C. ^ 2011. 
THE CHALLENGED STATUTORY CLASSIFICATION (HOUSEHOLDS OF RELATED PERSONS
VERSUS HOUSEHOLDS CONTAINING ONE OR MORE UNRELATED PERSONS) IS CLEARLY
IRRELEVANT TO THE STATED PURPOSES OF THE ACT.  AS THE DISTRICT COURT
RECOGNIZED, "(THE RELATIONSHIPS AMONG PERSONS CONSTITUTING ONE ECONOMIC
UNIT AND SHARING COOKING FACILITIES HAVE NOTHING TO DO WITH THEIR
ABILITIES TO STIMULATE THE AGRICULTURAL ECONOMY BY PURCHASING FARM
SURPLUSES, OR WITH THEIR PERSONAL NUTRITIONAL REQUIREMENTS."  345
F.SUPP., AT 313. 

THUS, IF IT IS TO BE SUSTAINED, THE CHALLENGED CLASSIFICATION MUST
RATIONALLY FURTHER SOME LEGITIMATE GOVERNMENTAL INTEREST OTHER THAN
THOSE SPECIFICALLY STATED IN THE CONGRESSIONAL "DECLARATION OF
POLICY."  REGRETTABLY, THERE IS LITTLE LEGISLATIVE HISTORY TO
ILLUMINATE THE PURPOSES OF THE 1971 AMENDMENT OF ^ 3(E).  /6/  THE
LEGISLATIVE HISTORY THAT DOES EXIST, HOWEVER, INDICATES THAT THAT
AMENDMENT WAS INTENDED TO PREVENT SO-CALLED "HIPPIES" AND "HIPPIE
COMMUNES" FROM PARTICIPATING IN THE FOOD STAMP PROGRAM.  SEE
H.R.CONF.REP.NO. 91-1793, P. 8; 116 CONG. REC. 44439 (1970) (SEN.
HOLLAND).  THE CHALLENGED CLASSIFICATION CLEARLY CANNOT BE SUSTAINED BY
REFERENCE TO THIS CONGRESSIONAL PURPOSE.  FOR IF THE CONSTITUTIONAL
CONCEPTION OF "EQUAL PROTECTION OF THE LAWS"  MEANS ANYTHING, IT MUST
AT THE VERY LEAST MEAN THAT A BARE CONGRESSIONAL DESIRE TO HARM A
POLITICALLY UNPOPULAR GROUP CANNOT CONSTITUTE A LEGITIMATE GOVERNMENTAL
INTEREST.  AS A RESULT, "(A) PURPOSE TO DISCRIMINATE AGAINST HIPPIES
CANNOT, IN AND OF ITSELF AND WITHOUT REFERENCE TO (SOME INDEPENDENT)
CONSIDERATIONS IN THE PUBLIC INTEREST, JUSTIFY THE 1971 AMENDMENT." 
345 F.SUPP., AT 314 N. 11. 

[[HC535'(ORIGINAL DOCUMENT PAGE 535)' 

ALTHOUGH APPARENTLY CONCEDING THIS POINT, THE GOVERNMENT MAINTAINS
THAT THE CHALLENGED CLASSIFICATION SHOULD NEVERTHELESS BE UPHELD AS
RATIONALLY RELATED TO THE CLEARLY LEGITIMATE GOVERNMENTAL INTEREST IN
MINIMIZING FRAUD IN THE ADMINISTRATION OF THE FOOD STAMP PROGRAM.  /7/
IN ESSENCE, THE GOVERNMENT CONTENDS THAT, IN ADOPTING THE 1971
AMENDMENT, CONGRESS MIGHT RATIONALLY HAVE THOUGHT (1) THAT HOUSEHOLDS
WITH ONE OR MORE UNRELATED MEMBERS ARE MORE LIKELY THAN "FULLY RELATED"
HOUSEHOLDS TO CONTAIN INDIVIDUALS WHO ABUSE THE PROGRAM BY FRAUDULENTLY
FAILING TO REPORT SOURCES OF INCOME OR BY VOLUNTARILY REMAINING POOR;
AND (2) THAT SUCH HOUSEHOLDS ARE "RELATIVELY UNSTABLE," THEREBY
INCREASING THE DIFFICULTY OF DETECTING SUCH ABUSES.  BUT EVEN IF WE
WERE TO ACCEPT AS RATIONAL THE GOVERNMENT'S WHOLLY UNSUBSTANTIATED
ASSUMPTIONS CONCERNING THE DIFFERENCES BETWEEN "RELATED" AND
"UNRELATED" HOUSEHOLDS, WE STILL COULD NOT AGREE WITH THE GOVERNMENT'S
CONCLUSION THAT THE DENIAL OF ESSENTIAL FEDERAL FOOD ASSISTANCE TO ALL
OTHERWISE ELIGIBLE HOUSEHOLDS CONTAINING UNRELATED MEMBERS CONSTITUTES
A RATIONAL EFFORT TO DEAL WITH THESE CONCERNS. 

AT THE OUTSET, IT IS IMPORTANT TO NOTE THAT THE FOOD STAMP ACT
ITSELF CONTAINS PROVISIONS, WHOLLY INDEPENDENT OF ^ 3(E), AIMED
SPECIFICALLY AT THE PROBLEMS OF FRAUD AND OF THE VOLUNTARILY POOR. 

[[HC536'(ORIGINAL DOCUMENT PAGE 536)'  FOR EXAMPLE, WITH CERTAIN
EXCEPTIONS, ^ 5(C) OF THE ACT, 7 U.S.C. ^ 2014(C), RENDERS INELIGIBLE
FOR ASSISTANCE ANY HOUSEHOLD CONTAINING "AN ABLE-BODIED ADULT PERSON
BETWEEN THE AGES OF EIGHTEEN AND SIXTY-FIVE" WHO FAILS TO REGISTER FOR,
AND ACCEPT, OFFERED EMPLOYMENT.  SIMILARLY, ^^ 14(B) AND (C), 7 U.S.C.
^^ 2023(B), (C), SPECIFICALLY IMPOSE STRICT CRIMINAL PENALTIES UPON ANY
INDIVIDUAL WHO OBTAINS OR USES FOOD STAMPS FRAUDULENTLY.  /8/  THE
EXISTENCE OF THESE PROVISIONS NECESSARILY CASTS CONSIDERABLE DOUBT UPON
THE PROPOSITION THAT THE 1971 AMENDMENT COULD RATIONALLY HAVE BEEN
INTENDED TO PREVENT THOSE VERY SAME ABUSES.  SEE EISENSTADT V. BAIRD,
405 U.S. 438, 452 (1972); CF.  DUNN V. BLUMSTEIN, 405 U.S. 330, 353 -
354 (1972). 

[[HC537'(ORIGINAL DOCUMENT PAGE 537)' 

MOREOVER, IN PRACTICAL EFFECT, THE CHALLENGED CLASSIFICATION SIMPLY
DOES NOT OPERATE SO AS RATIONALLY TO FURTHER THE PREVENTION OF FRAUD. 
AS PREVIOUSLY NOTED, ^ 3(E) DEFINES AS AN ELIGIBLE "HOUSEHOLD" "A GROUP
OF RELATED INDIVIDUALS . . . (1) LIVING AS ONE ECONOMIC UNIT (2)
SHARING COMMON COOKING FACILITIES (AND 3) FOR WHOM FOOD IS CUSTOMARILY
PURCHASED IN COMMON."  THUS, TWO UNRELATED PERSONS LIVING TOGETHER AND
MEETING ALL THREE OF THESE CONDITIONS WOULD CONSTITUTE A SINGLE
HOUSEHOLD INELIGIBLE FOR ASSISTANCE.  IF FINANCIALLY FEASIBLE, HOWEVER,
THESE SAME TWO INDIVIDUALS CAN LEGALLY AVOID THE "UNRELATED PERSON"
EXCLUSION SIMPLY BY ALTERING THEIR LIVING ARRANGEMENTS SO AS TO
ELIMINATE ANY ONE OF THE THREE CONDITIONS.  BY SO DOING, THEY
EFFECTIVELY CREATE TWO SEPARATE "HOUSEHOLDS," BOTH OF WHICH ARE
ELIGIBLE FOR ASSISTANCE.  SEE KNOWLES V. BUTZ, 358 F.SUPP.  228 (NC
CAL. 1973).  INDEED, AS THE CALIFORNIA DIRECTOR OF SOCIAL WELFARE HAS
EXPLAINED:  /9/ 

"THE 'RELATED HOUSEHOLD' LIMITATIONS WILL ELIMINATE 

MANY HOUSEHOLDS FROM ELIGIBILITY IN THE FOOD STAMP 

PROGRAM.  IT IS MY UNDERSTANDING THAT THE 

CONGRESSIONAL INTENT OF THE NEW REGULATIONS ARE 

SPECIFICALLY AIMED AT THE 'HIPPIES' AND 'HIPPIE 

COMMUNES.'  MOST PEOPLE IN THIS CATEGORY CAN AND 

WILL ALTER THEIR LIVING ARRANGEMENTS IN ORDER TO 

REMAIN ELIGIBLE FOR FOOD STAMPS.  HOWEVER, THE 

AFDC MOTHERS WHO TRY TO RAISE THEIR STANDARD OF 

LIVING BY SHARING HOUSING WILL BE AFFECTED.  THEY 

WILL NOT BE ABLE TO UTILIZE THE ALTERED LIVING 

PATTERNS IN ORDER TO CONTINUE TO BE ELIGIBLE 

WITHOUT GIVING UP THEIR ADVANTAGE OF SHARED HOUSING 

COSTS." 

THUS, IN PRACTICAL OPERATION, THE 1971 AMENDMENT EXCLUDES FROM
PARTICIPATION IN THE FOOD STAMP PROGRAM, NOT THOSE PERSONS WHO ARE
"LIKELY TO ABUSE THE PROGRAM" BUT, RATHER, ONLY THOSE PERSONS WHO ARE
SO DESPERATELY IN NEED OF AID THAT THEY CANNOT EVEN EFFORD TO ALTER
THEIR LIVING ARRANGEMENTS SO AS TO RETAIN THEIR ELIGIBILITY. 

[[HC538'(ORIGINAL DOCUMENT PAGE 538)'  TRADITIONAL EQUAL PROTECTION
ANALYSIS DOES NOT REQUIRE THAT EVERY CLASSIFICATION BE DRAWN WITH
PRECISE "'MATHEMATICAL NICETY.'"  DANDRIDGE V. WILLIAMS, 397 U.S., AT
485.  BUT THE CLASSIFICATION HERE IN ISSUE IS NOT ONLY "IMPRECISE," IT
IS WHOLLY WITHOUT ANY RATIONAL BASIS.  THE JUDGMENT OF THE DISTRICT
COURT HOLDING THE "UNRELATED PERSON, PROVISION INVALID UNDER THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT IS THEREFORE
AFFIRMED 

/1/  78 STAT. 703 (EMPHASIS ADDED).  THE ACT PROVIDED FURTHER THAT
"(THE TERM 'HOUSEHOLD' SHALL ALSO MEAN A SINGLE INDIVIDUAL LIVING ALONE
WHO HAS COOKING FACILITIES AND WHO PURCHASES AND PREPARES FOOD FOR HOME
CONSUMPTION."  IBID. 

/2/  84 STAT. 2048.  THE 1971 AMENDMENT DID NOT AFFECT CERTAIN
GROUPS OF NONRELATED INDIVIDUALS OVER 60 YEARS OF AGE.  AS AMENDED, SEC
3(E) NOW PROVIDES: 

THE TERM 'HOUSEHOLD' SHALL MEAN A GROUP OF RELATED INDIVIDUALS
(INCLUDING LEGALLY ADOPTED CHILDREN AND LEGALLY ASSIGNED FOSTER
CHILDREN) OR NON-RELATED INDIVIDUALS OVER AGE 60 WHO ARE NOT RESIDENTS
OF AN INSTITUTION OR BOARDING HOUSE, BUT ARE LIVING AS ONE ECONOMIC
UNIT SHARING COMMON COOKING FACILITIES AND FOR WHOM FOOD IS CUSTOMARILY
PURCHASED IN COMMON.  THE TERM 'HOUSEHOLD' SHALL ALSO MEAN (1) A SINGLE
INDIVIDUAL LIVING ALONE WHO HAS COOKING FACILITIES AND WHO PURCHASES
AND PREPARES FOOD FOR HOME CONSUMPTION, OR (2) AN ELDERLY PERSON WHO
MEETS THE REQUIREMENTS OF SECTION 2019(H) OF THIS TITLE."  7 U.S.C. ^
2012(E). 

/3/  TITLE 7 CFR ^ 270.2(JJ) PROVIDES: 

"(JJ)'HOUSEHOLD' MEANS A GROUP OF PERSONS, EXCLUDING ROOMERS,
BOARDERS, AND UNRELATED LIVE-IN ATTENDANTS NECESSARY FOR MEDICAL,
HOUSEKEEPING, OR CHILD CARE REASONS, WHO ARE NOT RESIDENTS OF AN
INSTITUTION OR BOARDING HOUSE, AND WHO ARE LIVING AS ONE ECONOMIC UNIT
SHARING COMMON COOKING FACILITIES AND FOR WHOM FOOD IS CUSTOMARILY
PURCHASED IN COMMON:  PROVIDED, THAT: 

"(1) WHEN ALL PERSONS IN THE GROUP ARE UNDER 60 YEARS OF AGE, THEY
ARE ALL RELATED TO EACH OTHER; AND 

"(2WHEN MORE THAN ONE OF THE PERSONS IN THE GROUP IS UNDER 60 YEARS
OF AGE, AND ONE OR MORE OTHER PERSONS IN THE GROUP IS 60 YEARS OF AGE
OR OLDER, EACH OF THE PERSONS UNDER 60 YEARS OF AGE IS RELATED TO EACH
OTHER OR TO AT LEAST ONE OF THE PERSONS WHO IS 60 YEARS OF AGE OR
OLDER.  "IT SHALL ALSO MEAN (I) A SINGLE INDIVIDUAL LIVING ALONE WHO
PURCHASES AND PREPARES FOOD FOR HOME CONSUMPTION, OR (II) AN ELDERLY
PERSON AS DEFINED IN THIS SECTION, AND HIS SPOUSE." 

/4/  APPELLEES ALSO ARGUED THAT THE REGULATIONS THEMSELVES WERE
INVALID BECAUSE BEYOND THE SCOPE OF THE AUTHORITY CONFERRED UPON THE
SECRETARY BY THE STATUTE.  THE DISTRICT COURT REJECTED THAT CONTENTION,
AND APPELLEES HAVE NOT PRESSED THAT ARGUMENT ON APPEAL.  MOREOVER,
APPELLEES DID NOT CHALLENGE THE CONSTITUTIONALITY OF THE STATUTE'S
RELIANCE ON "HOUSEHOLDS" RATHER THAN "INDIVIDUALS"  AS THE BASIC UNIT
OF THE FOOD STAMP PROGRAM.  WE THEREFORE INTIMATE NO VIEW ON THAT
QUESTION. 

/5/  "(WHILE THE FIFTH AMENDMENT CONTAINS NO EQUAL PROTECTION
CLAUSE, IT DOES FORBID DISCRIMINATION THAT IS 'SO UNJUSTIFIABLE AS TO
BE VIOLATIVE OF DUE PROCESS.'"  SCHNEIDER V. RUSK, 377 U.S. 163, 168
(1964); SEE FRONTIERO V. RICHARDSON, 411 U.S. 677, 680 N. 5 (1973);
SHAPIRO V. THOMPSON, 394 U.S. 618, 641 - 642 (1969); BOLLING V. SHARPE,
347 U.S. 497 (1954). 

/6/  INDEED, THE AMENDMENT FIRST MATERIALIZED, BARE OF COMMITTEE
CONSIDERATION, DURING A CONFERENCE COMMITTEE'S CONSIDERATION OF
DIFFERING HOUSE AND SENATE BILLS. 

/7/  THE GOVERNMENT INITIALLY ARGUED TO THE DISTRICT COURT THAT THE
CHALLENGED CLASSIFICATION MIGHT BE JUSTIFIED AS A MEANS TO FOSTER
"MORALITY."  IN REJECTING THAT CONTENTION, THE DISTRICT COURT NOTED
THAT "INTERPRETING THE AMENDMENT AS AN ATTEMPT TO REGULATE MORALITY
WOULD RAISE SERIOUS CONSTITUTIONAL QUESTIONS."  345 F.SUPP.  310, 314. 
INDEED, CITING THIS COURT'S DECISIONS IN GRISWOLD V. CONNECTICUT, 381
U.S. 479 (1965), STANLEY V. GEORGIA, 394 U.S. 557 (1969), AND
EISENSTADT V. BAIRD, 405 U.S. 438 (1972), THE DISTRICT COURT OBSERVED
THAT IT WAS DOUBTFUL, AT BEST, WHETHER CONGRESS, "IN THE NAME OF
MORALITY," COULD "INFRINGE THE RIGHTS TO PRIVACY AND FREEDOM OF
ASSOCIATION IN THE HOME."  345 F.SUPP.  AT 314.  (EMPHASIS IN
ORIGINAL.)  MOREOVER, THE COURT ALSO POINTED OUT THAT THE
CLASSIFICATION ESTABLISHED IN ^ 3(E) WAS NOT RATIONALLY RELATED "TO
PREVAILING NOTIONS OF MORALITY, SINCE IT IN TERMS DISQUALIFIES ALL
HOUSEHOLDS OF UNRELATED INDIVIDUALS, WITHOUT REFERENCE TO WHETHER A
PARTICULAR GROUP CONTAINS BOTH SEXES."  ID., AT 315.  THE GOVERNMENT
ITSELF HAS NOT ABANDONED THE "MORALITY"  ARGUMENT.  SEE BRIEF FOR
APPELLANTS 9. 

/8/  TITLE 7 U.S.C. ^^ 2023(B) AND (C) PROVIDE: 

"(B) WHOEVER KNOWINGLY USES, TRANSFERS, ACQUIRES, ALTERS, OR
POSSESSES COUPONS OR AUTHORIZATION TO PURCHASE CARDS IN ANY MANNER NOT
AUTHORIZED BY THIS (ACT) OR THE REGULATIONS ISSUED PURSUANT TO THIS
(ACT) SHALL, IF SUCH COUPONS OR AUTHORIZATION TO PURCHASE CARDS ARE OF
THE VALUE OF $100 OR MORE, BE GUILTY OF A FELONY AND SHALL, UPON
CONVICTION THEREOF, BE FINED NOT MORE THAN $10,000 OR IMPRISONED FOR
NOT MORE THAN FIVE YEARS OR BOTH, OR, IF SUCH COUPONS OR AUTHORIZATION
TO PURCHASE CARDS ARE OF A VALUE OF LESS THAN $100, SHALL BE GUILTY OF
A MISDEMEANOR AND SHALL, UPON CONVICTION THEREOF, BE FINED NOT MORE
THAN $5,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH. 

"(C) WHOEVER PRESENTS, OR CAUSES TO BE PRESENTED, COUPONS FOR
PAYMENT OR REDEMPTION OF THE VALUE OF $100 OR MORE, KNOWING THE SAME TO
HAVE BEEN RECEIVED, TRANSFERRED, OR USED IN ANY MANNER IN VIOLATION OF
THE PROVISIONS OF THIS (ACT) OR THE REGULATIONS ISSUED PURSUANT TO THIS
(ACT) SHALL BE GUILTY OF A FELONY AND SHALL, UPON CONVICTION THEREOF,
BE FINED NOT MORE THAN $10,000 OR IMPRISONED FOR NOT MORE THAN FIVE
YEARS, OR BOTH, OR, IF SUCH COUPONS ARE OF A VALUE OF LESS THAN $100,
SHALL BE GUILTY OF A MISDEMEANOR AND SHALL, UPON CONVICTION THEREOF, BE
FINED NOT MORE THAN $5,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR
BOTH." 

/9/  APP. 43. 

[[DOP 

MR. JUSTICE DOUGLAS, CONCURRING. 

APPELLEE JACINTA MORENO IS A 56-YEAR-OLD DIABETIC WHO LIVES WITH
ERMINA SANCHEZ AND THE LATTER'S CHILDREN.  THE TWO SHARE COMMON LIVING
EXPENSES, MRS. SANCHEZ HELPING TO CARE FOR THIS APPELLEE.  APPELLEE'S
MONTHLY INCOME IS $75, DERIVED FROM PUBLIC ASSISTANCE, AND MRS.
SANCHEZ' IS $133, ALSO DERIVED FROM PUBLIC ASSISTANCE.  THIS HOUSEHOLD
PAYS $95 A MONTH FOR RENT, OF WHICH APPELLEE PAYS $40, AND $40 A MONTH
FOR GAS AND ELECTRICITY, OF WHICH APPELLEE PAYS $10.  APPELLEE SPENDS
$10 A MONTH FOR TRANSPORTATION TO A HOSPITAL FOR REGULAR VISITS AND $5
A MONTH FOR LAUNDRY.  THAT LEAVES HER $10 A MONTH FOR FOOD AND OTHER
NECESSITIES.  MRS. SANCHEZ AND THE THREE CHILDREN RECEIVED $108 WORTH
OF FOOD STAMPS PER MONTH FOR $18.  BUT UNDER THE "UNRELATED"  PERSON
PROVISION OF THE ACT, /1/  SHE WILL BE CUT OFF IF APPELLEE MORENO
CONTINUES TO LIVE WITH HER. 

APPELLEE SHEILAH HEJNY IS MARRIED AND HAS THREE CHILDREN, AGES TWO
TO FIVE. 

[[HC539'(ORIGINAL DOCUMENT PAGE 539)'  SHE AND HER HUSBAND TOOK IN A
20-YEAR-OLD GIRL WHO IS UNRELATED TO THEM.  SHE SHARES IN THE
HOUSEKEEPING.  THE HEJNYS PAY $14 A MONTH AND RECEIVE $144 WORTH OF
FOOD STAMPS.  THE HEJNYS COMPRISE AN INDIGENT HOUSEHOLD.  BUT IF THEY
ALLOW THE 20-YEAR- OLD GIRL TO LIVE WITH THEM, THEY TOO WILL BE CUT OFF
FROM FOOD STAMPS BY REASON OF THE "UNRELATED" PERSON PROVISION. 

APPELLEE KEPPLER HAS A DAUGHTER WITH AN ACUTE HEARING DEFICIENCY WHO
REQUIRES INSTRUCTION IN A SCHOOL FOR THE DEAF.  THE SCHOOL IS IN AN
AREA WHERE THE MOTHER CANNOT AFFORD TO LIVE.  SO SHE AND HER TWO MINOR
CHILDREN MOVED INTO A NEARBY APARTMENT WITH A WOMAN WHO, LIKE APPELLEE
KEPPLER, IS ON PUBLIC ASSISTANCE BUT WHO IS NOT RELATED TO HER.  AS A
RESULT APPELLEE KEPPLER'S FOOD STAMPS HAVE BEEN CUT OFF BECAUSE OF THE
"UNRELATED" PERSON PROVISION. 

[[HC540'(ORIGINAL DOCUMENT PAGE 540)' 

THESE APPELLEES INSTITUTED A CLASS ACTION TO ENJOIN THE ENFORCEMENT
OF THE "UNRELATED" PERSON PROVISION OF THE ACT. 

THE "UNRELATED" PERSON PROVISION OF THE ACT CREATES TWO CLASSES OF
PERSONS FOR FOOD STAMP PURPOSES: ONE CLASS IS COMPOSED OF PEOPLE WHO
ARE ALL RELATED TO EACH OTHER AND ALL IN DIRE NEED; AND THE OTHER CLASS
IS COMPOSED OF HOUSEHOLDS THAT HAVE ONE OR MORE PERSONS UNRELATED TO
THE OTHERS BUT HAVE THE SAME DEGREE OF NEED AS THOSE IN THE FIRST
CLASS.  THE FIRST TYPE OF HOUSEHOLD QUALIFIES FOR RELIEF, THE SECOND
CANNOT QUALIFY, NO MATTER THE NEED.  IF IS THAT APPLICATION OF THE ACT
WHICH IS SAID TO VIOLATE THE CONCEPTION OF EQUAL PROTECTION THAT IS
IMPLICIT IN THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  BOLLING V.
SHARPE, 347 U.S. 497, 499. 

THE TEST OF EQUAL PROTECTION IS WHETHER THE LEGISLATIVE LINE THAT IS
DRAWN BEARS "SOME RATIONAL RELATIONSHIP TO A LEGITIMATE"  GOVERNMENTAL
PURPOSE.  /2/  WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164,
172.  THE REQUIREMENT OF EQUAL PROTECTION DENIED GOVERNMENT "THE POWER
TO LEGISLATE THAT DIFFERENT TREATMENT BE ACCORDED TO PERSONS PLACED BY
A STATUTE INTO DIFFERENT CLASSES ON THE BASIS OF CRITERIA WHOLLY
UNRELATED TO THE OBJECTIVE" OF THE ENACTMENT.  REED V. REED, 404 U.S.
71, 75 - 76. 

[[HC541'(ORIGINAL DOCUMENT PAGE 541)' 

THIS CASE INVOLVES DESPERATELY POOR PEOPLE WITH ACUTE PROBLEMS WHO,
THOUGH UNRELATED, COME TOGETHER FOR MUTUAL HELP AND ASSISTANCE.  THE
CHOICE OF ONE'S ASSOCIATES FOR SOCIAL, POLITICAL, RACE, OR RELIGIOUS
PURPOSES IS BASIC IN OUR CONSTITUTIONAL SCHEME.  NAACP V. ALABAMA, 357
U.S. 449, 460; DE JONGE V. OREGON, 299 U.S. 353, 363; NAACP V. BUTTON,
371 U.S. 415, 429 - 431; GIBSON V. FLORIDA LEGISLATIVE COMMITTEE, 372
U.S. 539; NAACP V. ALABAMA, 377 U.S. 288.  IT EXTENDS TO "THE
ASSOCIATIONAL RIGHTS OF THE MEMBERS" OF A TRADE UNION.  BROTHERHOOD OF
RAILROAD TRAINMEN V. VIRGINIA BAR, 377 U.S. 1, 8. 

I SUPPOSE NO ONE WOULD DOUBT THAT AN ASSOCIATION OF PEOPLE WORKING IN
THE PROVERTY FIELD WOULD BE ENTITLED TO THE SAME CONSTITUTIONAL
PROTECTION AS THOSE WORKING IN THE RACIAL, BANKING, OR AGRICULTURAL
FIELD.  I SUPPOSE POOR PEOPLE HOLDING A MEETING OR CONVENTION WOULD BE
UNDER THE SAME CONSTITUTIONAL UMBRELLA AS OTHERS.  THE DIMENSIONS OF
THE "RELATED" PERSON PROBLEM UNDER THE FOOD STAMP ACT ARE IN THAT
CATEGORY.  AS THE FACTS OF THIS CASE SHOW, THE POOR ARE CONGREGATING IN
HOUSEHOLDS WHERE THEY CAN BETTER MEET THE ADVERSITIES OF POVERTY.  THIS
BANDING TOGETHER IS AN EXPRESSION OF THE RIGHT OF FREEDOM OF
ASSOCIATION THAT IS VERY DEEP IN OUR TRADITIONS. 

OTHER LIKE RIGHTS HAVE BEEN RECOGNIZED THAT ARE ONLY PERIPHERAL
FIRST AMENDMENT RIGHTS--THE RIGHT TO SEND ONE'S CHILD TO A RELIGIOUS
SCHOOL, THE RIGHT TO STUDY THE GERMAN LANGUAGE IN A PRIVATE SCHOOL, THE
PROTECTION OF THE ENTIRE SPECTRUM OF LEARNING, TEACHING, AND
COMMUNICATING IDEAS, THE MARITAL RIGHT OF PRIVACY.  GRISWOLD V.
CONNECTICUT, 381 U.S. 479, 482 - 483. 

AS THE EXAMPLES INDICATE, THESE PERIPHERAL CONSTITUTIONAL RIGHTS ARE
EXERCISED NOT NECESSARILY IN ASSEMBLIES THAT CONGREGATE IN HALLS OR
AUDITORIUMS BUT IN DISCRETE INDIVIDUAL ACTIONS SUCH AS PARENTS PLACING
A CHILD IN THE SCHOOL OF THEIR CHOICE.  TAKING A PERSON INTO ONE'S HOME
BECAUSE HE IS POOR OR NEEDS HELP OR BRINGS HAPPINESS TO THE HOUSEHOLD
IS OF THE SAME DIGNITY. 

[[HC542'(ORIGINAL DOCUMENT PAGE 542)' 

CONGRESS MIGHT CHOOSE TO DEAL ONLY WITH MEMBERS OF A FAMILY OF ONE
OR TWO OR THREE GENERATIONS, TREATING IT ALL AS A UNIT.  CONGRESS,
HOWEVER, HAS NOT DONE THAT HERE.  CONCEDEDLY AN INDIVIDUAL LIVING ALONE
IS NOT DISQUALIFIED FROM THE RECEIPT OF FOOD STAMP AID, EVEN THOUGH
THERE ARE OTHER MEMBERS OF THE FAMILY WITH WHOM HE MIGHT THEORETICALLY
LIVE.  NOR ARE COMMON-LAW COUPLES DISQUALIFIED:  THEY, LIKE INDIVIDUALS
LIVING ALONE, MAY QUALIFY UNDER THE ACT IF THEY ARE POOR--WHETHER THEY
HAVE ABANDONED THEIR WIVES AND CHILDREN AND HOWEVER ANTIFAMILY THEIR
ATTITUDES MAY BE.  IN OTHER WORDS, THE "UNRELATED" PERSON PROVISION WAS
NOT AIMED AT THE MAINTENANCE OF NORMAL FAMILY TIES.  IT PENALIZES
PERSONS OR FAMILIES WHO HAVE BROUGHT UNDER THEIR ROOF AN "UNRELATED"
NEEDY PERSON.  IT PENALIZES THE POOREST OF THE POOR FOR DOUBLING UP
AGAINST THE ADVERSITIES OF POVERTY. 

BUT FOR THE CONSTITUTIONAL ASPECTS OF THE PROBLEM, THE "UNRELATED"
PERSON PROVISION OF THE ACT MIGHT WELL BE SUSTAINED AS A MEANS TO
PREVENT FRAUD.  FRAUD IS A CONCERN OF THE ACT.  7 U.S.C. ^^ 2023(B) AND
(C).  ABLE-BODIED PERSONS MUST REGISTER AND ACCEPT WORK OR LOSE THEIR
FOOD STAMP RIGHTS.  7 U.S.C. ^ 2014(C).  I COULD NOT SAY THAT THIS
"UNRELATED" PERSON PROVISION HAS NO "RATIONAL"  RELATION TO CONTROL OF
FRAUD.  WE DEAL HERE, HOWEVER, WITH THE RIGHT OF ASSOCIATION, PROTECTED
BY THE FIRST AMENDMENT. 

[[HC543'(ORIGINAL DOCUMENT PAGE 543)'  PEOPLE WHO ARE DESPERATELY
POOR BUT UNRELATED COME TOGETHER AND JOIN HANDS WITH THE AIM BETTER TO
COMBAT THE CRISES OF POVERTY.  THE NEED OF THOSE LIVING TOGETHER BETTER
TO MEET THOSE CRISES IS DENIED, WHILE THE NEED OF HOUSEHOLDS MADE UP OF
RELATIVES THAT IS NO MORE ACUTE IS SERVICED.  PROBLEMS OF THE FISC, AS
WE STATED IN SHAPIRO V. THOMPSON, 394 U.S. 618, 633, ARE LEGITIMATE
CONCERNS OF GOVERNMENT.  BUT GOVERNMENT "MAY NOT ACCOMPLISH SUCH A
PURPOSE BY INVIDIOUS DISTINCTIONS BETWEEN CLASSES OF ITS CITIZENS." 
IBID. 

THE LEGISLATIVE HISTORY OF THE ACT INDICATES THAT THE "UNRELATED"
PERSON PROVISION OF THE ACT WAS TO PREVENT "ESSENTIALLY UNRELATED
INDIVIDUALS WHO VOLUNTARILY CHOSE TO COHABIT AND LIVE OFF FOOD STAMPS"
/3/  --SO-CALLED "HIPPIES" OR "HIPPY COMMUNES"  --FROM PARTICIPATING IN
THE FOOD STAMP PROGRAM.  AS STATED IN THE CONFERENCE REPORT, /4/  THE
DEFINITION OF HOUSEHOLD WAS "DESIGNED TO PROHIBIT FOOD STAMP ASSISTANCE
TO COMMUNAL 'FAMILIES' OF UNRELATED INDIVIDUALS." 

THE RIGHT OF ASSOCIATION, THE RIGHT TO INVITE THE STRANGER INTO
ONE'S HOME IS TOO BASIC IN OUR CONSTITUTIONAL REGIME TO DEAL WITH
ROUGHSHOD.  IF THERE ARE ABUSES INHERENT IN THAT PATTERN OF LIVING
AGAINST WHICH THE FOOD STAMP PROGRAM SHOULD BE PROTECTED, THE ACT MUST
BE "NARROWLY DRAWN," CANTWELL V. CONNECTICUT, 310 U.S. 296, 307, TO
MEET THE PRECISE END.  THE METHOD ADOPTED AND APPLIED TO THESE CASES
MAKES ^ 3(E) OF THE ACT UNCONSTITUTIONAL BY REASON OF THE INVIDIOUS
DISCRIMINATION BETWEEN THE TWO CLASSES OF NEEDY PERSONS.     DANDRIDGE
V. WILLIAMS, 397 U.S. 471, IS NOT OPPOSED.  IT SUSTAINED A MARYLAND
GRANT OF WELFARE, AGAINST THE CLAIM OF VIOLATION OF EQUAL PROTECTION,
WHICH PLACED AN UPPER LIMIT IN THE MONTHLY AMOUNT ANY SINGLE FAMILY
COULD RECEIVE. 

[[HC544'(ORIGINAL DOCUMENT PAGE 544)'  THE CLAIMANTS HAD LARGE
FAMILIES SO THAT THEIR STANDARD OF NEED EXCEEDED THE ACTUAL GRANTS. 
THEIR CLAIM WAS THAT THE GRANTS OF AID CONSIDERED IN LIGHT OF THE SIZE
OF THEIR FAMILIES CREATED AN INVIDIOUS DISCRIMINATION AGAINST THEM AND
IN FAVOR OF SMALL NEEDY FAMILIES.  THE CLAIM WAS REJECTED ON THE BASIS
THAT STATE ECONOMIC OR SOCIAL LEGISLATION HAD LONG BEEN JUDGED BY A
LESS STRICT STANDARD THAT COMES INTO PLAY WHEN CONSTITUTIONALLY
PROTECTED RIGHTS ARE INVOLVED.  ID., AT 484 - 485.  LAWS TOUCHING
SOCIAL AND ECONOMIC MATTERS CAN PASS MUSTER UNDER THE EQUAL PROTECTION
CLAUSE THOUGH THEY ARE IMPERFECT, THE TEST BEING WHETHER THE
CLASSIFICATION HAS SOME "REASONABLE BASIS."  IBID.  DANDRIDGE HELD THAT
"THE FOURTEENTH AMENDMENT GIVES THE FEDERAL COURTS NO POWER TO IMPOSE
UPON THE STATES THEIR VIEWS OF WHAT CONSTITUTES WISE ECONOMIC OR SOCIAL
POLICY."  ID., AT 486.  BUT FOR THE FIRST AMENDMENT ASPECT OF THE CASE,
DANDRIDGE WOULD CONTROL HERE. 

DANDRIDGE, HOWEVER, DID NOT REACH CLASSIFICATIONS TOUCHING ON
ASSOCIATIONAL RIGHTS THAT LIE IN THE PENUMBRA OF THE FIRST AMENDMENT. 
SINCE THE "RELATED" PERSON PROVISION IS NOT DIRECTED TO THE MAINTENANCE
OF THE FAMILY AS A UNIT BUT TREATS IMPOVERISHED HOUSEHOLDS COMPOSED OF
RELATIVES MORE FAVORABLY THAN IMPOVERISHED HOUSEHOLDS HAVING A SINGLE
UNRELATED PERSON, IT DRAWS A LINE THAT CAN BE SUSTAINED ONLY ON A
SHOWING OF A "COMPELLING" GOVERNMENTAL INTEREST. 

THE "UNRELATED" PERSON PROVISION OF THE PRESENT ACT HAS AN IMPACT ON
THE RIGHTS OF PEOPLE TO ASSOCIATE FOR LAWFUL PURPOSES WITH WHOM THEY
CHOOSE.  WHEN STATE ACTION "MAY HAVE THE EFFECT OF CURTAILING THE
FREEDOM TO ASSOCIATE" IT "IS SUBJECT TO THE CLOSEST SCRUTINY."  NAACP
V. ALABAMA, 357 U.S., AT 460 - 461.  THE "RIGHT OF THE PEOPLE PEACEABLY
TO ASSEMBLE" GUARANTEED BY THE FIRST AMENDMENT COVERS A WIDE SPECTRUM
OF HUMAN INTERESTS--INCLUDING, AS STATED IN ID., AT 460, "POLITICAL,
ECONOMIC, RELIGIOUS, OR CULTURAL MATTERS." 

[[HC545'(ORIGINAL DOCUMENT PAGE 545)'  BANDING TOGETHER TO COMBAT
THE COMMON FOE OF HUNGER IS IN THAT CATEGORY.  THE CASE THEREFORE FALLS
WITHIN THE ZONE REPRESENTED BY SHAPIRO V. THOMPSON, SUPRA, WHICH HELD
THAT A WAITING PERIOD ON WELFARE IMPOSED BY A STATE ON THE "INMIGRATION
OF INDIGENTS"  PENALIZING THE CONSTITUTIONAL RIGHT TO TRAVEL COULD NOT
BE SUSTAINED ABSENT A "COMPELLING GOVERNMENTAL INTEREST."  ID., AT 631,
634. 

[[DFN 

/1/  SECTION 3(E) OF THE FOOD STAMP ACT PROVIDES IN RELEVANT PART: 

"THE TERM 'HOUSEHOLD' SHALL MEAN A GROUP OF RELATED INDIVIDUALS
(INCLUDING LEGALLY ADOPTED CHILDREN AND LEGALLY ASSIGNED FOSTER
CHILDREN) OR NON-RELATED INDIVIDUALS OVER AGE 60 WHO ARE NOT RESIDENTS
OF AN INSTITUTION OR BOARDING HOUSE, BUT ARE LIVING AS ONE ECONOMIC
UNIT SHARING COMMON COOKING FACILITIES AND FOR WHOM FOOD IS CUSTOMARILY
PURCHASED IN COMMON."  7 U.S.C. ^ 2012(E). 

THE REGULATIONS PROVIDE:  "'HOUSEHOLD' MEANS A GROUP OF PERSONS,
EXCLUDING ROOMERS, BOARDERS, AND UNRELATED LIVE-IN ATTENDANTS NECESSARY
FOR MEDICAL, HOUSEKEEPING, OR CHILD CARE REASONS, WHO ARE NOT RESIDENTS
OF AN INSTITUTION OR BOARDING HOUSE, AND WHO ARE LIVING AS ONE ECONOMIC
UNIT SHARING COMMON COOKING FACILITIES AND FOR WHOM FOOD IS CUSTOMARILY
PURCHASED IN COMMON:  PROVIDED, THAT: 

"(1) WHEN ALL PERSONS IN THE GROUP ARE UNDER 60 YEARS OF AGE, THEY
ARE ALL RELATED TO EACH OTHER; AND 

"(2) WHEN MORE THAN ONE OF THE PERSONS IN THE GROUP IS UNDER 60
YEARS OF AGE, AND ONE OR MORE OTHER PERSONS IN THE GROUP IS 60 YEARS OF
AGE OR OLDER, EACH OF THE PERSONS UNDER 60 YEARS OF AGE IS RELATED TO
EACH OTHER OR TO AT LEAST ONE OF THE PERSONS WHO IS 60 YEARS OF AGE OR
OLDER."  7 CFR ^ 270.2(JJ). 

"ELIGIBILITY FOR AND PARTICIPATION IN THE PROGRAM SHALL BE ON A
HOUSEHOLD BASIS.  ALL PERSONS, EXCLUDING ROOMERS, BOARDERS, AND
UNRELATED LIVE-IN ATTENDANTS NECESSARY FOR MEDICAL, HOUSEKEEPING, OR
CHILD CARE REASONS, RESIDING IN COMMON LIVING QUARTERS SHALL BE
CONSOLIDATED INTO A GROUP PRIOR TO DETERMINING IF SUCH A GROUP IS A
HOUSEHOLD AS DETERMINED IN ^ 270.2(JJ) OF THIS SUBCHAPTER."  7 CFR ^
271.3(A). 

/2/  THE PURPOSE OF THE PRESENT ACT WAS STATED BY CONGRESS:  "TO
SAFEGUARD THE HEALTH AND WELL-BEING OF THE NATION'S POPULATION AND
RAISE LEVELS OF NUTRITION AMONG LOW-INCOME HOUSEHOLDS.  THE CONGRESS
HEREBY FINDS THAT THE LIMITED FOOD PURCHASING POWER OF LOW-INCOME
HOUSEHOLDS CONTRIBUTES TO HUNGER AND MALNUTRITION AMONG MEMBERS OF SUCH
HOUSEHOLDS.  THE CONGRESS FURTHER FINDS THAT INCREASED UTILIZATION OF
FOOD IN ESTABLISHING AND MAINTAINING ADEQUATE NATIONAL LEVELS OF
NUTRITION WILL PROMOTE THE DISTRIBUTION IN A BENEFICIAL MANNER OF OUR
AGRICULTURAL ABUNDANCES AND WILL STRENGTHEN OUR AGRICULTURAL ECONOMY,
AS WELL AS RESULT IN MORE ORDERLY MARKETING AND DISTRIBUTION OF FOOD. 
TO ALLEVIATE SUCH HUNGER AND MALNUTRITION, A FOOD STAMP PROGRAM IS
HEREIN AUTHORIZED WHICH WILL PERMIT LOW-INCOME HOUSEHOLDS TO PURCHASE A
NUTRITIONALLY ADEQUATE DIET THROUGH NORMAL CHANNELS OF TRADE."  7
U.S.C. ^ 2011. 

/3/  SEE 116 CONG. REC. 42003. 

/4/  H.R.CONF.REP.NO. 91-1793, P.8. 

[[DOP 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

FOR MUCH THE SAME REASONS AS THOSE STATED IN MY DISSENTING OPINION
IN UNITED STATES DEPARTMENT OF AGRICULTURE V. MURRY, ANTE, P. 522, I AM
UNABLE TO AGREE WITH THE COURT'S DISPOSITION OF THIS CASE.  HERE
APPELLEES CHALLENGED A PROVISION IN THE FEDERAL FOOD STAMP ACT, 7
U.S.C. ^ 2011 ET SEQ., WHICH LIMITED FOOD STAMPS TO RELATED PEOPLE
LIVING IN ONE "HOUSEHOLD."  THE RESULT OF THIS PROVISION IS THAT
UNRELATED PERSONS WHO LIVE UNDER THE SAME ROOF AND POOL THEIR RESOURCES
MAY NOT OBTAIN FOOD STAMPS EVEN THOUGH OTHERWISE ELIGIBLE. 

THE COURT'S OPINION WOULD MAKE A VERY PERSUASIVE CONGRESSIONAL
COMMITTEE REPORT ARGUING AGAINST THE ADOPTION OF THE LIMITATION IN
QUESTION.  UNDOUBTEDLY, CONGRESS ATTACKED THE PROBLEM WITH A RATHER
BLUNT INSTRUMENT AND, JUST AS UNDOUBTEDLY, PERSUASIVE ARGUMENTS MAY BE
MADE THAT WHAT WE CONCEIVE TO BE ITS PURPOSE WILL NOT BE SIGNIFICANTLY
ADVANCED BY THE ENACTMENT OF THE LIMITATION.  BUT QUESTIONS SUCH AS
THIS ARE FOR CONGRESS, RATHER THAN FOR THIS COURT; OUR ROLE IS LIMITED
TO THE DETERMINATION OF WHETHER THERE IS ANY RATIONAL BASIS ON WHICH
CONGRESS COULD DECIDE THAT PUBLIC FUNDS MADE AVAILABLE UNDER THE FOOD
STAMP PROGRAM SHOULD NOT GO TO A HOUSEHOLD CONTAINING AN INDIVIDUAL WHO
IS UNRELATED TO ANY OTHER MEMBER OF THE HOUSEHOLD. 

I DO NOT BELIEVE THAT ASSERTED CONGRESSIONAL CONCERN WITH THE
FRAUDULENT USE OF FOOD STAMPS IS, WHEN INTERPRETED IN THE LIGHT MOST
FAVORABLE TO SUSTAINING THE LIMITATION, QUITE AS IRRATIONAL AS THE
COURT SEEMS TO BELIEVE. 

[[HC546'(ORIGINAL DOCUMENT PAGE 546)'  A BASIC UNIT WHICH CONGRESS
HAS CHOSEN FOR DETERMINATION OF AVAILABILITY FOR FOOD STAMPS IS THE
"HOUSEHOLD," A DETERMINATION WHICH IS NOT CRITICIZED BY THE COURT.  BY
THE LIMITATION HERE CHALLENGED, IT HAS SINGLED OUT HOUSEHOLDS WHICH
CONTAIN UNRELATED PERSONS AND MADE SUCH HOUSEHOLDS INELIGIBLE.  I DO
NOT THINK IT IS UNREASONABLE FOR CONGRESS TO CONCLUDE THAT THE BASIC
UNIT WHICH IT WAS WILLING TO SUPPORT WITH FEDERAL FUNDING THROUGH FOOD
STAMPS IS SOME VARIATION ON THE FAMILY AS WE KNOW IT--A HOUSEHOLD
CONSISTING OF RELATED INDIVIDUALS.  THIS UNIT PROVIDES A GUARANTEE
WHICH IS NOT PROVIDED BY HOUSEHOLDS CONTAINING UNRELATED INDIVIDUALS
THAT THE HOUSEHOLD EXISTS FOR SOME PURPOSE OTHER THAN TO COLLECT
FEDERAL FOOD STAMPS. 

ADMITTEDLY, AS THE COURT POINTS OUT, THE LIMITATION WILL MAKE
INELIGIBLE MANY HOUSEHOLDS WHICH HAVE NOT BEEN FORMED FOR THE PURPOSE
OF COLLECTING FEDERAL FOOD STAMPS, AND WILL AT THE SAME TIME NOT WHOLLY
DENY FOOD STAMPS TO THOSE HOUSEHOLDS WHICH MAY HAVE BEEN FORMED IN
LARGE PART TO TAKE ADVANTAGE OF THE PROGRAM.  BUT, AS THE COURT
CONCEDES, "(TRADITIONAL EQUAL PROTECTION ANALYSIS DOES NOT REQUIRE THAT
EVERY CLASSIFICATION BE DRAWN WITH PRECISE 'MATHEMATICAL NICETY,'"
ANTE, AT 538.  AND EARLIER THIS TERM, THE CONSTITUTIONALITY OF A
SIMILARLY "IMPRECISE" RULE PROMULGATED PURSUANT TO THE TRUTH IN LENDING
ACT WAS CHALLENGED ON GROUNDS SUCH AS THOSE URGED BY APPELLEES HERE. 
IN MOURNING V. FAMILY PUBLICATIONS SERVICE, INC., 411 U.S. 356 (1973),
THE IMPOSITION OF THE RULE ON ALL MEMBERS OF A DEFINED CLASS WAS
SUSTAINED BECAUSE IT SERVED TO DISCOURAGE EVASION BY A SUBSTANTIAL
PORTION OF THAT CLASS OF DISCLOSURE MECHANISMS CHOSEN BY CONGRESS FOR
CONSUMER PROTECTION. 

[[HC547'(ORIGINAL DOCUMENT PAGE 547)' 

THE LIMITATION WHICH CONGRESS ENACTED COULD, IN THE JUDGMENT OF
REASONABLE MEN, CONCEIVABLY DENY FOOD STAMPS TO MEMBERS OF HOUSEHOLDS
WHICH HAVE BEEN FORMED SOLELY FOR THE PURPOSE OF TAKING ADVANTAGE OF
THE FOOD STAMP PROGRAM.  SINCE THE FOOD STAMP PROGRAM IS NOT INTENDED
TO BE A SUBSIDY FOR EVERY INDIVIDUAL WHO DESIRES LOW COST FOOD, THIS
WAS A PERMISSIBLE CONGRESSIONAL DECISION QUITE CONSISTENT WITH THE
UNDERLYING POLICY OF THE ACT.  THE FACT THAT THE LIMITATION WILL HAVE
UNFORTUNATE AND PERHAPS UNINTENDED CONSEQUENCES BEYOND THIS DOES NOT
MAKE IT UNCONSTITUTIONAL. 

A. RAYMOND RANDOLPH, JR., ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM
ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WOOD, WALTER H. FLEISCHER, AND WILLIAM KANTER. 

RONALD F. POLLACK ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS ROGER A. SCHWARTZ. 
..END :

















CSC V. LETTER CARRIERS, 413 U.S. 548 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA 

     NO. 72 - 634.  ARGUED MARCH 26, 1973--DECIDED JUNE 25, 1973;
346 F.SUPP.  578, REVERSED. 


    SOME INDIVIDUAL FEDERAL EMPLOYEES, AND EMPLOYEES' UNION, AND

  CERTAIN LOCAL DEMOCRATIC AND REPUBLICAN POLITICAL COMMITTEES

  FILED THIS ACTION CHALLENGING AS UNCONSTITUTIONAL ON ITS FACE THE

  PROHIBITION IN ^ 9(A) OF THE HATCH ACT, NOW 5 U.S.C. ^ 7324

  (A)(2), AGAINST FEDERAL EMPLOYEES' TAKING "AN ACTIVE PART IN

  POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS."  THE SECTION

  DEFINES THE PHRASE AS "THOSE ACTS OF POLITICAL MANAGEMENT OR

  POLITICAL CAMPAIGNING WHICH WERE PROHIBITED ON THE PART OF

  EMPLOYEES IN THE COMPETITIVE SERVICE BEFORE JULY 19, 1940, BY

  DETERMINATIONS OF THE CIVIL SERVICE COMMISSION UNDER THE RULES

PRESCRIBED BY THE PRESIDENT."  THE THREE-JUDGE DISTRICT COURT

  RECOGNIZED THE "WELL-ESTABLISHED GOVERNMENTAL INTEREST IN

  RESTRICTING POLITICAL ACTIVITIES BY FEDERAL EMPLOYEES," BUT HELD

  THAT THE STATUTORY DEFINITION OF "POLITICAL ACTIVITY," THE

  CONSTITUTIONALITY OF WHICH WAS LEFT OPEN IN UNITED PUBLIC WORKERS

  V. MITCHELL, 330 U.S. 75, WAS VAGUE AND OVERBROAD, AND THUS

  UNCONSTITUTIONAL.  HELD: 

     1. THE HOLDING OF MITCHELL, SUPRA, THAT FEDERAL EMPLOYEES CAN

  BE PREVENTED FROM HOLDING A PARTY OFFICE, WORKING AT THE POLLS,

  AND ACTING AS PARTY PAYMASTER FOR OTHER PARTY WORKERS IS

  REAFFIRMED.  CONGRESS CAN ALSO CONSTITUTIONALLY FORBID BEDERAL

  EMPLOYEES FROM ENGAGING IN PLAINLY IDENTIFIABLE ACTS OF POLITICAL

  MANAGEMENT AND POLITICAL CAMPAIGNING, SUCH AS ORGANIZING A

  POLITICAL PARTY OR CLUB; ACTIVELY PARTICIPATING IN FUND-RAISING

  ACTIVITIES FOR A PARTISAN CANDIDATE OR POLITICAL PARTY; BECOMING

  A PARTISAN CANDIDATE FOR, OR CAMPAIGNING FOR, AN ELECTIVE PUBLIC

  OFFICE; ACTIVELY MANAGING THE CAMPAIGN OF A PARTISAN CANDIDATE

  FOR PUBLIC OFFICE; INITIATING OR CIRCULATING A PARTISAN

  NOMINATING PETITION OR SOLICITING VOTES FOR A PARTISAN CANDIDATE

  FOR PUBLIC OFFICE; OR SERVING AS A DELEGATE, ALTERNATE, OR PROXY

  TO A POLITICAL PARTY CONVENTION.  PP. 554 - 567. 

     2. IT IS THE CIVIL SERVICE COMMISSION'S REGULATIONS REGARDING

  POLITICAL ACTIVITY, THE LEGITIMATE DESCENDANTS OF THE 1940

  RESTATEMENT ADOPTED BY THE CONGRESS, AND, IN MOST RESPECTS THE

  REFLECTION OF LONGSTANDING INTERPRETATIONS OF THE STATUTE BY THE

  AGENCY CHARGED WITH ITS INTERPRETATION AND ENFORCEMENT, AND THE

  STATUTE ITSELF, THAT ARE THE BASES FOR REJECTING THE CLAIM THAT

  THE ACT IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD.  PP. 568 -

  581. 

     (A) THE REGULATIONS SPECIFYING THE VARIOUS ACTIVITIES DEEMED

  PROHIBITED BY ^ 7324(A)(2) ARE SET OUT IN TERMS THAT THE ORDINARY

  PERSON EXERCISING ORDINARY COMMON SENSE CAN SUFFICIENTLY

  UNDERSTAND AND OBSERVE, WITHOUT SACRIFICE TO THE PUBLIC INTEREST,

  AND ARE NOT IMPERMISSIBLY VAGUE.  PP. 575 - 580. 

     (B) THERE IS NOTHING FATALLY OVERBROAD ABOUT THE STATUTE

  CONSIDERED IN CONNECTION WITH THE CIVIL SERVICE COMMISSION'S

  CONSTRUCTION OF ITS TERMS REPRESENTED BY THE CURRENT

  REGULATIONS.  THE RESTRICTIONS ON ENDORSEMENTS IN ADVERTISEMENTS,

BROADCASTS, AND LITERATURE, AND ON SPEAKING AT POLITICAL PARTY

  MEETINGS IN SUPPORT OF PARTISAN CANDIDATES FOR PUBLIC OR PARTY

  OFFICE, THE MAJOR AREAS OF DIFFICULTY, ARE CLEARLY STATED, ARE

  NORMALLY PERFORMED ONLY IN THE CONTEXT OF PARTISAN CAMPAIGNS BY

  ONE TAKING AN ACTIVE ROLE IN THEM, AND ARE SUSTAINABLE JUST AS

  THE OTHER ACTS OF POLITICAL CAMPAIGNING ARE CONSTITUTIONALLY

  PROSCRIBABLE.  THEY DO NOT, THEREFORE, RENDER THE REST OF THE

  STATUTE VULNERABLE FOR OVERBREADTH.  P. 580. 

     (C) EVEN IF THE PROVISIONS FORBIDDING PARTISAN CAMPAIGN

  ENDORSEMENTS AND SPEECHMAKING WERE TO BE CONSIDERED IN SOME

  RESPECTS CONSTITUTIONALLY OVERBROAD, THEY WOULD NOT INVALIDATE

  THE ENTIRE STATUTE.  PP. 580 - 581. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL,
JJ., JOINED, POST, P. 595. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 11, 1972, WE NOTED PROBABLE JURISDICTION OF THIS APPEAL,
409 U.S. 1058, BASED ON A JURISDICTIONAL STATEMENT PRESENTING THE
SINGLE QUESTION WHETHER THE PROHIBITION IN ^ 9(A) OF THE HATCH ACT, NOW
CODIFIED IN 5 U.S.C. ^ 7324(A)(2), AGAINST FEDERAL EMPLOYEES TAKING "AN
ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS," IS
UNCONSTITUTIONAL ON ITS FACE. 

[[HC550'(ORIGINAL DOCUMENT PAGE 550)'  SECTION 7324(A) PROVIDES: 

"AN EMPLOYEE IN AN EXECUTIVE AGENCY OR AN INDIVIDUAL 

EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA 

MAY NOT-- 

"(1) USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE 

PURPOSE OF INTERFERING WITH OR AFFECTING THE RESULT 

OF AN ELECTION; OR 

"(2) TAKE AN ACTIVE PART IN POLITICAL MANAGEMENT 

OR IN POLITICAL CAMPAIGNS. 

"FOR THE PURPOSE OF THIS SUBSECTION, THE PHRASE 'AN ACTIVE 

PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS' 

MEANS THOSE ACTS OF POLITICAL MANAGEMENT OR POLITICAL 

CAMPAIGNING WHICH WERE PROHIBITED ON THE PART OF 

EMPLOYEES IN THE COMPETITIVE SERVICE BEFORE JULY 19, 

1940, BY DETERMINATIONS OF THE CIVIL SERVICE COMMISSION 

UNDER THE RULES PRESCRIBED BY THE PRESIDENT."  /1/  A DIVIDED THREE
JUDGE COURT SITTING IN THE DISTRICT OF COLUMBIA HAD HELD THE SECTION
UNCONSTITUTIONAL.  346 F.SUPP.  578 (1972). 

[[HC551'(ORIGINAL DOCUMENT PAGE 551)'  WE REVERSE THE JUDGMENT OF
THE DISTRICT COURT. 

I 

THE CASE BEGAN WHEN THE NATIONAL ASSOCIATION OF LETTER CARRIERS, SIX
INDIVIDUAL FEDERAL EMPLOYEES AND CERTAIN LOCAL DEMOCRATIC AND
REPUBLICAN POLITICAL COMMITTEES FILED A COMPLAINT, ASSERTING ON BEHALF
OF THEMSELVES AND ALL FEDERAL EMPLOYEES THAT 5 U.S.C. ^ 7324(A)(2) WAS
UNCONSTITUTIONAL ON ITS FACE AND SEEKING AN INJUNCTION AGAINST ITS
ENFORCEMENT.  /2/ 

EACH OF THE PLAINTIFFS ALLEGED THAT THE CIVIL SERVICE COMMISSION WAS
ENFORCING, OR THREATENING TO ENFORCE, THE HATCH ACT'S PROHIBITION
AGAINST ACTIVE PARTICIPATION IN POLITICAL MANAGEMENT OR POLITICAL
CAMPAIGNS WITH RESPECT TO CERTAIN DEFINED ACTIVITY IN WHICH THAT
PLAINTIFF DESIRED TO ENGAGE.  /3/  THE UNION, FOR EXAMPLE, STATED AMONG
OTHER THINGS THAT ITS MEMBERS DESIRED TO CAMPAIGN FOR CANDIDATES FOR
PUBLIC OFFICE.  THE DEMOCRATIC AND REPUBLICAN COMMITTEES COMPLAINED OF
NOT BEING ABLE TO GET FEDERAL EMPLOYEES TO RUN FOR STATE AND LOCAL
OFFICES.  PLAINTIFF HUMMEL STATED THAT HE WAS AWARE OF THE PROVISION OF
THE HATCH ACT AND THAT THE ACTIVITIES HE DESIRED TO ENGAGE IN WOULD
VIOLATE THAT ACT AS, FOR EXAMPLE, HIS PARTICIPATING AS A DELEGATE IN A
PARTY CONVENTION OR HOLDING OFFICE IN A POLITICAL CLUB. 

A THREE-JUDGE COURT WAS CONVENED, AND THE CASE WAS TRIED ON BOTH
STIPULATED EVIDENCE AND ORAL TESTIMONY.  THE DISTRICT COURT THEN RULED
THAT ^ 7324(A)(2) WAS UNCONSTITUTIONAL ON ITS FACE AND ENJOINED ITS
ENFORCEMENT.  THE COURT RECOGNIZED THE "WELL-ESTABLISHED GOVERNMENTAL
INTEREST IN RESTRICTING POLITICAL ACTIVITIES BY FEDERAL EMPLOYEES WHICH
(HAD BEEN) ASSERTED LONG BEFORE ENACTMENT OF THE HATCH ACT," 346
F.SUPP., AT 579, AS WELL AS THE FACT THAT THE "APPROPRIATENESS OF THIS
GOVERNMENTAL OBJECTIVE WAS RECOGNIZED BY THE SUPREME COURT OF THE
UNITED STATES WHEN IT ENDORSED THE OBJECTIVES OF THE HATCH ACT.  UNITED
PUBLIC WORKERS V. MITCHELL, 330 U.S. 75 . . . (1947) . . . "  ID., AT
580.  THE DISTRICT COURT RULED, HOWEVER, THAT UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75 (1947), LEFT OPEN THE CONSTITUTIONALITY OF THE
STATUTORY DEFINITION OF "POLITICAL ACTIVITY," 346 F.SUPP., AT 580, AND
PROCEEDED TO HOLD THAT DEFINITION TO BE BOTH VAGUE AND OVERBROAD, AND
THEREFORE UNCONSTITUTIONAL AND UNENFORCEABLE AGAINST THE PLAINTIFFS IN
ANY RESPECT.  THE DISTRICT COURT ALSO ADDED, ID., AT 585, THAT EVEN IF
THE SUPREME COURT IN MITCHELL COULD BE SAID TO HAVE UPHELD THE
DEFINITIONAL SECTION IN ITS ENTIRETY, LATER DECISIONS HAD SO ERODED THE
HOLDING THAT IT COULD NO LONGER BE CONSIDERED BINDING ON THE DISTRICT
COURT. 

     II 

AS THE DISTRICT COURT RECOGNIZED, THE CONSTITUTIONALITY OF THE HATCH
ACT'S BAN ON TAKING AN ACTIVE PART IN POLITICAL MANAGEMENT OR POLITICAL
CAMPAIGNS HAS BEEN HERE BEFORE. 

[[HC554'(ORIGINAL DOCUMENT PAGE 554)'  THIS VERY PROHIBITION WAS
ATTACKED IN THE MITCHELL CASE BY A LABOR UNION AND VARIOUS FEDERAL
EMPLOYEES AS BEING VIOLATIVE OF THE FIRST, NINTH, AND TENTH AMENDMENTS
AND AS CONTRARY TO THE FIFTH AMENDMENT AS BEING VAGUE AND INDEFINITE,
ARBITRARILY DISCRIMINATORY, AND A DEPRIVATION OF LIBERTY.  THE COURT
THERE FIRST DETERMINED THAT WITH RESPECT TO ALL BUT ONE OF THE
PLAINTIFFS THERE WAS NO CASE OR CONTROVERSY PRESENT WITHIN THE MEANING
OF ART. III BECAUSE THE COURT COULD ONLY SPECULATE AS TO THE TYPE OF
POLITICAL ACTIVITY THE APPELLANTS THERE DESIRED TO ENGAGE IN OR AS TO
THE CONTENTS OF THEIR PROPOSED PUBLIC STATEMENTS OR THE CIRCUMSTANCES
OF THEIR PUBLICATION.  AS TO THE PLAINTIFF POOLE, HOWEVER, THE COURT
NOTED THAT "(HE WAS A WARD EXECUTIVE COMMITTEEMAN OF A POLITICAL PARTY
AND WAS POLITICALLY ACTIVE ON ELECTION DAY AS A WORKER AT THE POLLS AND
A PAYMASTER FOR THE SERVICES OF OTHER PARTY WORKERS."  330 U.S., AT
94.  PLAINLY, THE COURT THOUGHT, THESE ACTIVITIES FELL WITHIN THE
PROHIBITION OF ^ 9 OF THE HATCH ACT AGAINST TAKING AN ACTIVE PART IN
POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNING; AND "(THEY (WERE) ALSO
COVERED BY THE PRIOR DETERMINATIONS OF THE (CIVIL SERVICE) COMMISSION,"
ID., AT 103 (FOOTNOTE OMITTED), AS INCORPORATED BY ^ 15 OF THE HATCH
ACT, /4/  THE COURT RELYING ON A CIVIL SERVICE COMMISSION PUBLICATION,
POLITICAL ACTIVITY AND POLITICAL ASSESSMENTS, FORM 1236, SEPT. 1939,
FOR THE LATTER CONCLUSION.  ID., AT 103 N. 38.  POOLE'S COMPLAINT THUS
PRESENTED A CASE OR CONTROVERSY FOR DECISION, THE QUESTION BEING SOLELY
WHETHER THE HATCH ACT "WITHOUT VIOLATING THE CONSTITUTION, (COULD MAKE
THIS CONDUCT) THE BASIS FOR DISCIPLINARY ACTION."  ID., AT 94. 

[[HC555'(ORIGINAL DOCUMENT PAGE 555)'  THE COURT HELD THAT IT
COULD.  "(THE PRACTICE OF EXCLUDING CLASSIFIED EMPLOYEES FROM PARTY
OFFICES AND PERSONAL POLITICAL ACTIVITY AT THE POLLS HAD) BEEN IN
EFFECT FOR SEVERAL DECADES," ID., AT 96; AND THE SUPREME COURT, OVER A
SINGLE DISSENT, IN EX PARTE CURTIS, 106 U.S. 371 (1882), HAD PREVIOUSLY
UPHELD FEDERAL EMPLOYEES "FROM GIVING OR RECEIVING MONEY FOR POLITICAL
PURPOSES FROM OR TO OTHER EMPLOYEES OF THE GOVERNMENT," 330 U.S., AT
96.  "THE CONVICTION THAT AN ACTIVELY PARTISAN GOVERNMENTAL PERSONNEL
THREATENS GOOD ADMINISTRATION HAS DEEPENED SINCE . . . CURTIS," ID., AT
97 - 98, CONGRESS HAVING RECOGNIZED THE "DANGER TO THE SERVICE IN THAT
POLITICAL RATHER THAN OFFICIAL EFFORT MAY EARN ADVANCEMENT AND TO THE
PUBLIC IN THAT GOVERNMENTAL FAVOR MAY BE CHANNELED THROUGH POLITICAL
CONNECTIONS."  ID., AT 98 (FOOTNOTE OMITTED). 

THE GOVERNMENT, THE COURT THOUGHT, WAS EMPOWERED TO PREVENT FEDERAL
EMPLOYEES FROM CONTRIBUTING ENERGY AS WELL AS FROM COLLECTING MONEY FOR
PARTISAN POLITICAL ENDS:  "CONGRESS AND THE RESIDENT ARE RESPONSIBLE
FOR AN EFFICIENT PUBLIC SERVICE.  IF, IN THEIR JUDGMENT, EFFICIENCY MAY
BE BEST OBTAINED BY PROHIBITING ACTIVE PARTICIPATION BY CLASSIFIED
EMPLOYEES IN POLITICS AS PARTY OFFICERS OR WORKERS, WE SEE NO
CONSTITUTIONAL OBJECTION."  ID., AT 99 (FOOTNOTE OMITTED).  ANOTHER
CONGRESS MIGHT DETERMINE OTHERWISE, BUT "(THE TEACHING OF EXPERIENCE .
. . EVIDENTLY LED CONGRESS TO ENACT THE HATCH ACT," ID., AT 99, WHICH
THE COURT REFUSED TO INVALIDATE AND WHICH IT VIEWED AS LEAVING
"UNTOUCHED FULL PARTICIPATION BY EMPLOYEES IN POLITICAL DECISIONS AT
THE BALLOT BOX AND FORBIDS ONLY THE PARTISAN ACTIVITY OF FEDERAL
PERSONNEL DEEMED OFFENSIVE TO EFFICIENCY."  IBID. 

[[HC556'(ORIGINAL DOCUMENT PAGE 556)'  THE ACT DID NOT INTERFERE
WITH A "WIDE RANGE OF PUBLIC ACTIVITIES."  ID., AT 100.  IT WAS "ONLY
PARTISAN POLITICAL ACTIVITY THAT IS INTERDICTED . . . (ONLY) ACTIVE
PARTICIPATION IN POLITICAL MANAGEMENT AND POLITICAL CAMPAIGNS (IS
PROSCRIBED).  EXPRESSIONS, PUBLIC OR PRIVATE, ON PUBLIC AFFAIRS,
PERSONALITIES AND MATTERS OF PUBLIC INTEREST, NOT AN OBJECTIVE OF PARTY
ACTION, ARE UNRESTRICTED BY LAW SO LONG AS THE GOVERNMENT EMPLOYEE DOES
NOT DIRECT HIS ACTIVITIES TOWARD PARTY SUCCESS."  IBID.  THE COURT
CONCLUDED THAT WHAT MR. POOLE HAD DONE WAS WITHIN THE POWER OF CONGRESS
AND THE EXECUTIVE TO PREVENT. 

WE UNHESITATINGLY REAFFIRM THE MITCHELL HOLDING THAT CONGRESS HAD,
AND HAS, THE POWER TO PREVENT MR. POOLE AND OTHERS LIKE HIM FROM
HOLDING A PARTY OFFICE, WORKING AT THE POLLS AND ACTING AS PARTY
PAYMASTER FOR OTHER PARTY WORKERS.  AN ACT OF CONGRESS GOING NO FARTHER
WOULD IN OUR VIEW UNQUESTIONABLY BE VALID.  SO WOULD IT BE IF, IN PLAIN
AND UNDERSTANDABLE LANGUAGE, THE STATUTE FORBADE ACTIVITIES SUCH AS
ORGANIZING A POLITICAL PARTY OR CLUB; ACTIVELY PARTICIPATING IN FUND
RAISING ACTIVITIES FOR A PARTISAN CANDIDATE OR POLITICAL PARTY;
BECOMING A PARTISAN CANDIDATE FOR, OR CAMPAIGNING FOR, AN ELECTIVE
PUBLIC OFFICE; ACTIVELY MANAGING THE CAMPAIGN OF A PARTISAN CANDIDATE
FOR PUBLIC OFFICE; INITIATING OR CIRCULATING A PARTISAN NOMINATING
PETITION OR SOLICITING VOTES FOR A PARTISAN CANDIDATE FOR PUBLIC
OFFICE; OR SERVING AS A DELEGATE, ALTERNATE OR PROXY TO A POLITICAL
PARTY CONVENTION.  OUR JUDGMENT IS THAT NEITHER THE FIRST AMENDMENT NOR
ANY OTHER PROVISION OF THE CONSTITUTION INVALIDATES A LAW BARRING THIS
KIND OF PARTISAN POLITICAL CONDUCT BY FEDERAL EMPLOYEES. 

    A 

SUCH DECISION ON OUR PART WOULD NO MORE THAN CONFIRM THE JUDGMENT OF
HISTORY, A JUDGMENT MADE BY THIS COUNTRY OVER THE LAST CENTURY THAT IT
IS IN THE BEST INTEREST OF THE COUNTRY, INDEED ESSENTIAL, THAT FEDERAL
SERVICE SHOULD DEPEND UPON MERITORIOUS PERFORMANCE RATHER THAN
POLITICAL SERVICE, AND THAT THE POLITICAL INFLUENCE OF FEDERAL
EMPLOYEES ON OTHERS AND ON THE ELECTORAL PROCESS SHOULD BE LIMITED. 

[[HC557'(ORIGINAL DOCUMENT PAGE 557)'  THAT THIS JUDGMENT EVENTUATED
IS INDISPUTABLE, AND THE MAJOR STEPS IN REACHING IT MAY BE SIMPLY AND
BRIEFLY SET DOWN. 

EARLY IN OUR HISTORY, THOMAS JEFFERSON WAS DISTURBED BY THE
POLITICAL ACTIVITIES OF SOME OF THOSE IN THE EXECUTIVE BRANCH OF THE
GOVERNMENT.  SEE 10 J. RICHARDSON, MESSAGES AND PAPERS OF THE
PRESIDENTS 98 (1899).  THE HEADS OF THE EXECUTIVE DEPARTMENTS, IN
RESPONSE TO HIS DIRECTIVE, ISSUED AN ORDER STATING IN PART THAT "(THE
RIGHT OF ANY OFFICER TO GIVE HIS VOTE AT ELECTIONS AS A QUALIFIED
CITIZEN IS NOT MEANT TO BE RESTRAINED, NOR, HOWEVER GIVEN, SHALL IT
HAVE ANY EFFECT TO HIS PREJUDICE; BUT IT IS EXPECTED THAT HE WILL NOT
ATTEMPT TO INFLUENCE THE VOTES OF OTHERS NOR TAKE ANY PART IN THE
BUSINESS OF ELECTIONEERING, THAT BEING DEEMED INCONSISTENT WITH THE
SPIRIT OF THE CONSTITUTION AND HIS DUTIES TO IT."  ID., AT 98 - 99. 
/5/ 

THERE WERE OTHER VOICES RAISED IN THE 19TH CENTURY AGAINST THE
MIXING OF PARTISAN POLITICS AND ROUTINE FEDERAL SERVICE.  BUT UNTIL
AFTER THE CIVIL WAR, THE SPOILS SYSTEM UNDER WHICH FEDERAL EMPLOYEES
CAME AND WENT DEPENDING UPON PARTY SERVICE AND CHANGING
ADMINISTRATIONS, RATHER THAN MERITORIOUS PERFORMANCE, WAS MUCH THE
VOGUE AND THE PREVALENT BASIS FOR GOVERNMENTAL EMPLOYMENT AND
ADVANCEMENT.  1 REPORT OF COMMISSION ON POLITICAL ACTIVITY OF
GOVERNMENT PERSONNEL, FINDINGS AND RECOMMENDATIONS 7 - 8 (1968). 

[[HC558'(ORIGINAL DOCUMENT PAGE 558)'  THAT SYSTEM DID NOT SURVIVE. 
CONGRESS AUTHORIZED THE PRESIDENT TO PRESCRIBE REGULATIONS FOR THE
CREATION OF A CIVIL SERVICE OF FEDERAL EMPLOYEES IN 1871, 16 STAT. 514;
BUT IT WAS THE CIVIL SERVICE ACT OF 1883, C. 27, 22 STAT. 403, KNOWN AS
THE PENDLETON ACT, H. KAPLAN, THE LAW OF CIVIL SERVICE 9 - 10 (1958),
THAT DECLARED THAT "NO PERSON IN THE PUBLIC SERVICE IS FOR THAT REASON
UNDER ANY OBLIGATIONS TO CONTRIBUTE TO ANY POLITICAL FUND, OR TO RENDER
ANY POLITICAL SERVICE" AND THAT "NO PERSON IN SAID SERVICE HAS ANY
RIGHT TO USE HIS OFFICIAL AUTHORITY OR INFLUENCE TO COERCE THE
POLITICAL ACTION OF ANY PERSON OR BODY."  22 STAT. 404.  THAT ACT
AUTHORIZED THE PRESIDENT TO PROMULGATE RULES TO CARRY THE ACT INTO
EFFECT AND CREATED THE CIVIL SERVICE COMMISSION AS THE AGENCY OR
ADMINISTRATOR OF THE ACT UNDER THE RULES OF THE PRESIDENT. 

THE ORIGINAL CIVIL SERVICE RULES WERE PROMULGATED ON MAY 7, 1883, BY
PRESIDENT ARTHUR.  CIVIL SERVICE RULE I REPEATED THE LANGUAGE OF THE
ACT THAT NO ONE IN THE EXECUTIVE SERVICE SHOULD USE HIS OFFICIAL
AUTHORITY OR INFLUENCE TO COERCE ANY OTHER PERSON OR TO INTERFERE WITH
AN ELECTION, BUT WENT NO FURTHER IN RESTRICTING THE POLITICAL
ACTIVITIES OF FEDERAL EMPLOYEES.  8 J. RICHARDSON, MESSAGES AND PAPERS
OF THE PRESIDENTS 161 (1899).  PROBLEMS WITH POLITICAL ACTIVITY
CONTINUED TO ARISE, TWENTY-FOURTH ANNUAL REPORT OF THE CIVIL SERVICE
COMMISSION 7 - 9 (1908), /6/  AND ONE FORM OF REMEDIAL ACTION WAS TAKEN
IN 1907 WHEN, IN ACCORDANCE WITH EXECUTIVE ORDER 642 ISSUED BY
PRESIDENT THEODORE ROOSEVELT, 1 REPORT OF COMMISSION ON POLITICAL
ACTIVITY, SUPRA, AT 9, ^ 1 OF RULE I WAS AMENDED TO READ AS FOLLOWS: 

     "NO PERSON IN THE EXECUTIVE CIVIL SERVICE SHALL USE HIS

  OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING

  WITH AN ELECTION OR AFFECTING THE RESULT THEREOF.  PERSONS, WHO,

  BY THE PROVISIONS OF THESE RULES ARE IN THE COMPETITIVE

  CLASSIFIED SERVICE, WHILE RETAINING THE RIGHT TO VOTE AS THEY

  PLEASE AND TO EXPRESS PRIVATELY THEIR OPINIONS ON ALL POLITICAL

  SUBJECTS, SHALL TAKE NO ACTIVE PART IN POLITICAL MANAGEMENT OR IN

POLITICAL CAMPAIGNS., TWENTY-FOURTH ANNUAL REPORT OF THE CIVIL

  SERVICE COMMISSION, SUPRA, AT 104 (EMPHASIS ADDED). 

[[HC559'(ORIGINAL DOCUMENT PAGE 559)' 

IT WAS UNDER THIS RULE THAT THE COMMISSION THEREAFTER EXERCISED THE
AUTHORITY IT HAD TO INVESTIGATE, ADJUDICATE, AND RECOMMEND SANCTIONS
FOR FEDERAL EMPLOYEES THOUGHT TO HAVE VIOLATED THE RULE.  SEE HOWARD,
FEDERAL RESTRICTIONS ON THE POLITICAL ACTIVITY OF GOVERNMENT EMPLOYEES,
35 AM. POL.  SCI.  REV. 470, 475 (1941).  IN THE COURSE OF THESE
ADJUDICATIONS, THE COMMISSION IDENTIFIED AND DEVELOPED A BODY OF LAW
WITH RESPECT TO THE CONDUCT OF FEDERAL EMPLOYEES THAT WAS FORBIDDEN BY
THE PROHIBITION AGAINST TAKING AN ACTIVE PART IN POLITICAL MANAGEMENT
OR POLITICAL CAMPAIGNING.  ADJUDICATIONS UNDER CIVIL SERVICE RULE I
SPELLED OUR THE SCOPE AND MEANING OF THE RULE IN THE MODE OF THE COMMON
LAW, 86 CONG. REC. 2341 - 2342; AND THE RULES FASHIONED IN THIS MANNER
WERE FROM TIME TO TIME STATED AND RESTATED BY THE COMMISSION FOR THE
GUIDANCE OF THE FEDERAL ESTABLISHMENT.  CIVIL SERVICE FORM 1236 OF
SEPTEMBER 1939, FOR EXAMPLE, PURPORTED TO PUBLISH AND RESTATE THE LAW
OF "POLITICAL ACTIVITY AND POLITICAL ASSESSMENTS" FOR FEDERAL OFFICE
HOLDERS AND EMPLOYEES. 

CIVIL SERVICE RULE I COVERED ONLY THE CLASSIFIED SERVICE.  THE
EXPERIENCE OF THE INTERVENING YEARS, PARTICULARLY THAT OF THE 1936 AND
1938 POLITICAL CAMPAIGNS, CONVINCED A MAJORITY IN CONGRESS THAT THE
PROHIBITION AGAINST TAKING AN ACTIVE PART IN POLITICAL MANAGEMENT AND
POLITICAL CAMPAIGNS SHOULD BE EXTENDED TO THE ENTIRE FEDERAL SERVICE. 
84 CONG. REC. 4303, 9595, 9604, AND 9610.  A BILL INTRODUCED FOR THIS
PURPOSE, S. 1871, "TO PREVENT PERNICIOUS POLITICAL ACTIVITIES," EASILY
PASSED THE SENATE, 84 CONG. REC. 4191 - 4192; BUT BOTH THE
CONSTITUTIONALITY AND THE ADVISABILITY OF PURPORTING TO RESTRICT THE
POLITICAL ACTIVITIES OF EMPLOYEES WERE HEATEDLY DEBATED IN THE HOUSE. 
ID., AT 9594 - 9639. 

[[HC560'(ORIGINAL DOCUMENT PAGE 560)'  THE BILL WAS ENACTED,
HOWEVER.  53 STAT. 1147.  THIS WAS THE SO-CALLED HATCH ACT, NAMED AFTER
THE SENATOR WHO WAS ITS CHIEF PROPONENT.  IN ITS INITIAL PROVISIONS, ^^
1 AND 2, IT FORBADE ANYONE FROM COERCING OR INTERFERING WITH THE VOTE
OF ANOTHER PERSON AND PROHIBITED FEDERAL EMPLOYEES FROM USING THEIR
OFFICIAL POSITIONS TO INFLUENCE OR INTERFERE WITH OR AFFECT THE
ELECTION OR NOMINATION OF CERTAIN FEDERAL OFFICIALS.  SECTIONS 3 AND 4
OF THE ACT PROHIBITED THE PROMISE OF, OR THREAT OF TERMINATION OF,
EMPLOYMENT OR COMPENSATION FOR THE PURPOSE OF INFLUENCING OR SECURING
POLITICAL ACTIVITY, OR SUPPORT OR OPPOSITION FOR ANY CANDIDATE. 

ACTIVITY NOW FOUND IN 5 U.S.C. ^ 7324(A)(2), WITH WHICH WE ARE
CONCERNED IN THIS CASE, ESSENTIALLY RESTATED CIVIL SERVICE RULE I, WITH
AN IMPORTANT EXCEPTION.  IT MADE IT 

"UNLAWFUL FOR ANY PERSON EMPLOYED IN THE EXECUTIVE BRANCH OF THE
FEDERAL GOVERNMENT, OR ANY AGENCY OR DEPARTMENT THEREOF, TO USE HIS
OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH AN
ELECTION OR AFFECTING THE RESULT THEREOF.  NO OFFICER OR EMPLOYEE IN
THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY AGENCY OR
DEPARTMENT THEREOF, SHALL TAKE ANY ACTIVE PART IN POLITICAL MANAGEMENT
OR IN POLITICAL CAMPAIGNS.  ALL SUCH PERSONS SHALL RETAIN THE RIGHT TO
VOTE AS THEY MAY CHOOSE AND TO EXPRESS THEIR OPINIONS ON ALL POLITICAL
SUBJECTS."  EXCEPTED FROM THE RESTRICTION WERE THE PRESIDENT, VICE
PRESIDENT, AND SPECIFIED OFFICIALS IN POLICY-MAKING POSITIONS. 

[[HC561'(ORIGINAL DOCUMENT PAGE 561)'  SECTION 9(B) REQUIRED
IMMEDIATE REMOVAL FOR VIOLATORS AND FORBADE THE USE OF APPROPRIATED
FUNDS THEREAFTER TO PAY COMPENSATION TO SUCH PERSONS. 

IT APPLIED TO ALL PERSONS EMPLOYED BY THE FEDERAL GOVERNMENT, WITH
LIMITED EXCEPTIONS; IT MADE DISMISSAL FROM OFFICE MANDATORY UPON AN
ADJUDICATION OF A VIOLATION; AND, WHEREAS CIVIL SERVICE RULE I HAD
STATED THAT PERSONS RETAINED THE RIGHT TO EXPRESS THEIR PRIVATE
OPINIONS ON ALL POLITICAL SUBJECT, THE STATUTE OMITTED THE WORD
"PRIVATE" AND SIMPLY PRIVILEGED ALL EMPLOYEES ,TO EXPRESS THEIR
OPINIONS ON ALL POLITICAL SUBJECTS." 

ON THE DAY PRIOR TO SIGNING THE BILL, PRESIDENT ROOSEVELT SENT A
MESSAGE TO CONGRESS STATING HIS CONVICTION THAT THE BILL WAS
CONSTITUTIONAL AND RECOMMENDING THAT CONGRESS AT ITS NEXT SESSTION
CONSIDER EXTENDING THE ACT TO STATE AND LOCAL GOVERNMENT EMPLOYEES.  84
CONG. REC. 10745 - 10747 AND 10875.  THIS, CONGRESS QUICKLY PROCEEDED
TO DO.  THE ACT OF JULY 19, 1940, C. 640, 54 STAT. 767, EXTENDED THE
HATCH ACT TO OFFICERS AND EMPLOYEES OF STATE AND LOCAL AGENCIES "WHOSE
PRINCIPAL EMPLOYMENT IS IN CONNECTION WITH ANY ACTIVITY WHICH IS
FINANCED IN WHOLE OR IN PART BY LOANS OR GRANTS MADE BY THE UNITED
STATES . . . ."  THE CIVIL SERVICE COMMISSION WAS EMPOWERED UNDER ^
12(B) TO INVESTIGATE AND ADJUDICATE VIOLATIONS OF THE ACT BY STATE AND
LOCAL EMPLOYEES.  ALSO RELEVANT FOR PRESENT PURPOSES, ^ 9(A) OF THE
HATCH ACT WAS AMENDED SO THAT ALL PERSONS COVERED BY THE ACT WERE FREE
TO "EXPRESS THEIR OPINIONS ON ALL POLITICAL SUBJECTS AND CANDIDATES." 
(EMPHASIS ADDED) MOREOVER, SEC. 15 DEFINED SEC. 9(A)'S PROHIBITION
AGAINST TAKING AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL
CAMPAIGNS AS PROSCRIBING "THE SAME ACTIVITIES ON THE PART OF SUCH
PERSONS AS THE UNITED STATES CIVIL SERVICE COMMISSION HAS HERETOFORE
DETERMINED ARE AT THE TIME THIS SECTION TAKES EFFECT PROHIBITED ON THE
PART OF EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES
BY THE PROVISIONS OF THE CIVIL-SERVICE RULES PROHIBITING SUCH EMPLOYEES
FROM TAKING ANY ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL
CAMPAIGNS." 

[[HC562'(ORIGINAL DOCUMENT PAGE 562)'  UNDER ^ 18, NOW 5 U.S.C. ^
7326, THE PROHIBITION AGAINST POLITICAL ACTIVITY WAS NOT TO BE
CONSTRUED TO PROHIBIT POLITICAL ACTIVITY IN NONPARTISAN ELECTIONS OR IN
CONNECTION WITH QUESTIONS NOT SPECIFICALLY IDENTIFIED WITH ANY NATIONAL
OR STATE POLITICAL PARTY, SUCH AS "QUESTIONS RELATING TO CONSTITUTIONAL
AMENDMENTS, REFERENDUMS, APPROVAL OF MUNICIPAL ORDINANCES, AND OTHERS
OF A SIMILAR CHARACTER . . . ."  /7/ IN 1950, SEC. 9(B), OF THE ACT,
REQUIRING REMOVAL FROM OFFICE FOR VIOLATING THE ACT, WAS AMENDED BY
PROVIDING THAT THE COMMISSION BY UNANIMOUS VOTE COULD IMPOSE A LESSER
PENALTY, BUT IN NO CASE LESS THAN 90 DAYS' SUSPENSION WITHOUT PAY.  64
STAT. 475.  THE MINIMUM SANCTION WAS REDUCED TO 30 DAYS' SUSPENSION
WITHOUT PAY IN 1962.  76 STAT. 750. 

IN 1966, CONGRESS DETERMINED TO REVIEW THE RESTRICTIONS OF THE HATCH
ACT ON THE PARTISAN POLITICAL ACTIVITIES OF PUBLIC EMPLOYEES.  FOR THIS
PURPOSE, THE COMMISSION ON POLITICAL ACTIVITY OF GOVERNMENT PERSONNEL
WAS CREATED.  80 STAT. 868.  THE COMMISSION REPORTED IN 1968,
RECOMMENDING SOME LIBERALIZATION OF THE POLITICAL-ACTIVITY RESTRICTIONS
ON FEDERAL EMPLOYEES, BUT NOT ABANDONING THE FUNDAMENTAL DECISION THAT
PARTISAN POLITICAL ACTIVITIES BY GOVERNMENT EMPLOYEES MUST BE LIMITED
IN MAJOR RESPECTS. 

[[HC563'(ORIGINAL DOCUMENT PAGE 563)'  1 REPORT OF COMMISSION ON
POLITICAL ACTIVITY OF GOVERNMENT PERSONNEL, SUPRA.  SINCE THAT TIME,
VARIOUS BILLS HAVE BEEN INTRODUCED IN CONGRESS, SOME FOLLOWING THE
COMMISSION'S RECOMMENDATIONS /8/ AND SOME PROPOSING MUCH MORE
SUBSTANTIAL REVISIONS OF THE HATCH ACT.  /9/  IN 1972, HEARINGS WERE
HELD ON SOME PROPOSED LEGISLATION; BUT NO NEW LEGISLATION HAS
RESULTED.  /10/ 

THIS ACCOUNT OF THE EFFORTS BY THE FEDERAL GOVERNMENT TO LIMIT
PARTISAN POLITICAL ACTIVITIES BY THOSE COVERED BY THE HATCH ACT SHOULD
NOT OBSCURE THE EQUALLY RELEVANT FACT THAT ALL 50 STATES HAVE
RESTRICTED THE POLITICAL ACTIVITIES OF THEIR OWN EMPLOYEES.  /11/

        B 

UNTIL NOW, THE JUDGMENT OF CONGRESS, THE EXECUTIVE, AND THE COUNTRY
APPEARS TO HAVE BEEN THAT PARTISAN POLITICAL ACTIVITIES BY FEDERAL
EMPLOYEES MUST BE LIMITED IF THE GOVERNMENT IS TO OPERATE EFFECTIVELY
AND FAIRLY, ELECTIONS ARE TO PLAY THEIR PROPER PART IN REPRESENTATIVE
GOVERNMENT AND EMPLOYEES THEMSELVES ARE TO BE SUFFICIENTLY FREE FROM
IMPROPER INFLUENCES.  E.G., 84 CONG. REC. 9598, 9603; 86 CONG. REC.
2360, 2621, 2864, 9376. 

[[HC564'(ORIGINAL DOCUMENT PAGE 564)'  THE RESTRICTIONS SO FAR
IMPOSED ON FEDERAL EMPLOYEES ARE NOT AIMED AT PARTICULAR PARTIES,
GROUPS, OR POINTS OF VIEW, BUT APPLY EQUALLY TO ALL PARTISAN ACTIVITIES
OF THE TYPE DESCRIBED.  THEY DISCRIMINATE AGAINST NO RACIAL, ETHNIC, OR
RELIGIOUS MINORITIES.  NOW DO THEY SEEK TO CONTROL POLITICAL OPINIONS
OR BELIEFS, OR TO INTERFERE WITH OR INFLUENCE ANYONE'S VOTE AT THE
POLLS. 

BUT, AS THE COURT HELD IN PICKERING V. BOARD OF EDUCATION, 391 U.S.
563, 568 (1968), THE GOVERNMENT HAS AN INTEREST IN REGULATING THE
CONDUCT AND "THE SPEECH OF ITS EMPLOYEES THAT DIFFERS) SIGNIFICANTLY
FROM THOSE IT POSSESSES IN CONNECTION WITH REGULATION OF THE SPEECH OF
THE CITIZENRY IN GENERAL.  THE PROBLEM IN ANY CASE IS TO ARRIVE AT A
BALANCE BETWEEN THE INTERESTS OF THE (EMPLOYEE), AS A CITIZEN, IN
COMMENTING UPON MATTERS OF PUBLIC CONCERN AND THE INTEREST OF THE
(GOVERNMENT), AS AN EMPLOYER, IN PROMOTING THE EFFICIENCY OF THE PUBLIC
SERVICES IT PERFORMS THROUGH ITS EMPLOYEES."  ALTHOUGH CONGRESS IS FREE
TO STRIKE A DIFFERENT BALANCE THAN IT HAS, IF IT SO CHOOSES, WE THINK
THE BALANCE IT HAS SO FAR STRUCK IS SUSTAINABLE BY THE OBVIOUSLY
IMPORTANT INTERESTS SOUGHT TO BE SERVED BY THE LIMITATIONS ON PARTISAN
POLITICAL ACTIVITIES NOW CONTAINED IN THE HATCH ACT. 

IT SEEMS FUNDAMENTAL IN THE FIRST PLACE THAT EMPLOYEES IN THE
EXECUTIVE BRANCH OF THE GOVERNMENT, OR THOSE WORKING FOR ANY OF ITS
AGENCIES, SHOULD ADMINISTER THE LAW IN ACCORDANCE WITH THE WILL OF
CONGRESS, RATHER THAN IN ACCORDANCE WITH THEIR OWN OR THE WILL OF A
POLITICAL PARTY.  THEY ARE EXPECTED TO ENFORCE THE LAW AND EXECUTE THE
PROGRAMS OF THE GOVERNMENT WITHOUT BIAS OR FAVORITISM FOR OR AGAINST
ANY POLITICAL PARTY OR GROUP OR THE MEMBERS THEREOF. 

[[HC565'(ORIGINAL DOCUMENT PAGE 565)'  A MAJOR THESIS OF THE HATCH
ACT IS THAT TO SERVE THIS GREAT END OF GOVERNMENT--THE IMPARTIAL
EXECUTION OF THE LAWS--IT IS ESSENTIAL THAT FEDERAL EMPLOYEES NOT, FOR
EXAMPLE, TAKE FORMAL POSITIONS IN POLITICAL PARTIES, NOT UNDERTAKE TO
PLAY SUBSTANTIAL ROLES IN PARTISAN POLITICAL CAMPAIGNS AND NOT RUN FOR
OFFICE ON PARTISAN POLITICAL TICKETS.  FORBIDDING ACTIVITIES LIKE THESE
WILL REDUCE THE HAZARDS TO FAIR AND EFFECTIVE GOVERNMENT.  SEE 84 CONG.
REC. 9598; 86 CONG. REC. 2433 - 2434, 2864; HEARINGS ON S.3374 AND S.
3417 BEFORE THE SENATE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, 92D
CONG., 2D SESS., 171. 

THERE IS ANOTHER CONSIDERATION IN THIS JUDGMENT:  IT IS NOT ONLY
IMPORTANT THAT THE GOVERNMENT AND ITS EMPLOYEES IN FACT AVOID
PRACTICING POLITICAL JUSTICE, BUT IT IS ALSO CRITICAL THAT THEY APPEAR
TO THE PUBLIC TO BE AVOIDING IT, IF CONFIDENCE IN THE SYSTEM OF
REPRESENTATIVE GOVERNMENT IS NOT TO BE ERODED TO A DISASTROUS EXTENT. 

ANOTHER MAJOR CONCERN OF THE RESTRICTION AGAINST PARTISAN ACTIVITIES
BY FEDERAL EMPLOYEES WAS PERHAPS THE IMMEDIATE OCCASION FOR ENACTMENT
OF THE HATCH ACT IN 1939.  THAT WAS THE CONVICTION THAT THE RAPIDLY
EXPANDING GOVERNMENT WORK FORCE SHOULD NOT BE EMPLOYED TO BUILD A
POWERFUL, INVINCIBLE, AND PERHAPS CORRUPT POLITICAL MACHINE.  THE
EXPERIENCE OF THE 1936 AND 1938 CAMPAIGNS CONVINCED CONGRESS THAT THESE
DANGERS WERE SUFFICIENTLY REAL THAT SUBSTANTIAL BARRIERS SHOULD BE
RAISED AGAINST THE PARTY IN POWER--OR THE PARTY OF OF POWER, FOR THAT
MATTER--USING THE THOUSANDS OR HUNDREDS OF THOUSANDS OF FEDERAL
EMPLOYEES, PAID FOR AT PUBLIC EXPENSE, TO MAN ITS POLITICAL STRUCTURE
AND POLITICAL CAMPAIGNS.  E.G., 84 CONG. REC. 9595, 9598, 9604, 9610. 

A RELATED CONCERN, AND THIS REMAINS AS IMPORTANT AS ANY OTHER, WAS
TO FURTHER SERVE THE GOAL THAT EMPLOYMENT AND ADVANCEMENT IN THE
GOVERNMENT SERVICE NOT DEPEND ON POLITICAL PERFORMANCE, AND AT THE SAME
TIME TO MAKE SURE THAT GOVERNMENT EMPLOYEES WOULD BE FREE FROM PRESSURE
AND FROM EXPRESS OR TACIT INVITATION TO VOTE IN A CERTAIN WAY OR
PERFORM POLITICAL CHORES IN ORDER TO CURRY FAVOR WITH THEIR SUPERIORS
RATHER THAN TO ACT OUT THEIR OWN BELIEFS. 

[[HC566'(ORIGINAL DOCUMENT PAGE 566)'  E.G., ID., AT 9598, 9603; 86
CONG. REC. 2433 - 2434; HEARINGS ON S. 3374 AND S. 3417, SUPRA, AT
171.  IT MAY BE URGED THAT PROHIBITIONS AGAINST COERCION ARE SUFFICIENT
PROTECTION; BUT FOR MANY YEARS THE JOINT JUDGMENT OF THE EXECUTIVE AND
CONGRESS HAS BEEN THAT TO PROTECT THE RIGHTS OF FEDERAL EMPLOYEES WITH
RESPECT TO THEIR JOBS AND THEIR POLITICAL ACTS AND BELIEFS IT IS NOT
ENOUGH MERELY TO FORBID ONE EMPLOYEE FROM ATTEMPTING TO INFLUENCE OR
COERCE ANOTHER.  /12/  FOR EXAMPLE, AT THE HEARINGS IN 1972 ON PROPOSED
LEGISLATION FOR LIBERALIZING THE PROHIBITION AGAINST POLITICAL
ACTIVITY, THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION STATED THAT "THE
PROHIBITIONS AGAINST ACTIVE PARTICIPATION IN PARTISAN POLITICAL
MANAGEMENT AND PARTISAN POLITICAL CAMPAIGNS CONSTITUTE THE MOST
SIGNIFICANT SAFEGUARDS AGAINST COERCION . . . ."  HEARINGS ON S. 3374
AND S. 3417, SUPRA, AT 52.  PERHAPS CONGRESS AT SOME TIME WILL COME TO
A DIFFERENT VIEW OF THE REALITIES OF POLITICAL LIFE AND GOVERNMENT
SERVICE; BUT THAT IS ITS CURRENT VIEW OF THE MATTER, AND WE ARE NOT NOW
IN ANY POSITION TO DISPUTE IT.  NOW, IN OUR VIEW, DOES THE CONSTITUTION
FORBID IT. 

[[HC567'(ORIGINAL DOCUMENT PAGE 567)' 

NEITHER THE RIGHT TO ASSOCIATE NOR THE RIGHT TO PARTICIPATE IN
POLITICAL ACTIVITIES IS ABSOLUTE IN ANY EVENT.  SEE, E.G., ROSARIO V.
ROCKEFELLER, 410 U.S. 752 (1973); DUNN V. BLUMSTEIN, 405 U.S. 330, 336
(1972); BULLOCK V. CARTER, 405 U.S. 134, 140 - 141 (1972); JENNESS V.
FORTSON, 403 U.S. 431 (1971); WILLIAMS V. RHODES, 393 U.S. 23, 30 - 31
(1968).  NOW ARE THE MANAGEMENT, FINANCING, AND CONDUCT OF POLITICAL
CAMPAIGNS WHOLLY FREE FROM GOVERNMENTAL REGULATION.  /13/  WE AGREE
WITH THE BASIC HOLDING OF MITCHELL THAT PLAINLY IDENTIFIABLE ACTS OF
POLITICAL MANAGEMENT AND POLITICAL CAMPAIGNING ON THE PART OF FEDERAL
EMPLOYEES MAY CONSTITUTIONALLY BE PROHIBITED.  UNTIL NOW THIS HAS BEEN
THE JUDGMENT OF THE LOWER FEDERAL COURTS, /14/ AND WE DO NOT UNDERSTAND
THE DISTRICT COURT IN THIS CASE TO HAVE QUESTIONED THE
CONSTITUTIONALITY OF A LAW THAT WAS SPECIFICALLY LIMITED TO PROHIBITING
THE CONDUCT IN WHICH MR. POOLE IN THE MITCHELL CASE ADMITTEDLY
ENGAGED.              III 

BUT HOWEVER CONSTITUTIONAL THE PROSCRIPTION OF IDENTIFIABLE PARTISAN
CONDUCT IN UNDERSTANDABLE LANGUAGE MAY BE, THE DISTRICT COURT'S
JUDGMENT WAS THAT ^ 7324(A)(2) WAS BOTH UNCONSTITUTIONALLY VAGUE AND
FATALLY OVERBROAD.  APPELLEES MAKE THE SAME CONTENTIONS HERE, BUT WE
CANNOT AGREE THAT THE SECTION IS UNCONSTITUTIONAL ON ITS FACE FOR
EITHER REASON. 

[[HC568'(ORIGINAL DOCUMENT PAGE 568)'     AS AN INITIAL MATTER, WE
MUST HAVE CLEARLY IN MIND THE STATUTORY PROHIBITIONS THAT WE ARE
EXAMINING FOR IMPERMISSIBLE VAGUENESS AND OVERBREADTH. 

MUST NOT TAKE "AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL
CAMPAIGNS" AND GOES ON TO SAY THAT THIS PROHIBITION REFERS TO "THOSE
ACTS OF POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNING WHICH WERE
PROHIBITED ON THE PART OF EMPLOYEES IN THE COMPETITIVE SERVICE BEFORE
JULY 19, 1940, BY DETERMINATIONS OF THE CIVIL SERVICE COMMISSION UNDER
THE RULES PRESCRIBED BY THE PRESIDENT."  SECTION 7324(B) PRIVILEGES AN
EMPLOYEE TO VOTE AS HE CHOOSES AND TO EXPRESS HIS OPINION ON POLITICAL
SUBJECTS AND CANDIDATES, AND ^ 7324(C) AND (D), AS WELL AS ^ 7326, ALSO
LIMIT THE APPLICABILITY OF THE SECTION.  /15/  THE PRINCIPAL ISSUE WITH
RESPECT TO THIS STATUTORY SCHEME IS WHAT CONGRESS INTENDED WHEN IT
PURPORTED TO DEFINE "AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN
POLITICAL CAMPAIGNS," AS MEANING THE PRIOR INTERPRETATIONS BY THE CIVIL
SERVICE COMMISSION UNDER CIVIL SERVICE RULE I WHICH CONTAINED THE
IDENTICAL PROHIBITION. 

[[HC569'(ORIGINAL DOCUMENT PAGE 569)' 

EARLIER IN THIS OPINION IT WAS NOTED THAT THIS DEFINITION WAS
CONTAINED IN ^ 15 OF THE 1940 ACT. 

[[HC570'(ORIGINAL DOCUMENT PAGE 570)'  AS RECOMMENDED BY THE SENATE
COMMITTEE, S. REP. NO. 1236, 76TH CONG., 3D SESS., 2, 4, ^ 15 CONFERRED
BROAD RULEMAKING AUTHORITY ON THE CIVIL SERVICE COMMISSION TO SPELL OUT
THE MEANING OF "AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL
CAMPAIGNS."  /16/  THERE WERE, IN ANY EVENT, STRONG OBJECTIONS TO
EXTENDING THE HATCH ACT TO THOSE STATE EMPLOYEES WORKING IN FEDERALLY
FINANCED PROGRAMS, E.G., 86 CONG. REC. 2486, 2793 - 2794, 2801 - 2802,
AND TO ^ 15, IN PARTICULAR, AS BEING AN UNWISE AND INVALID DELEGATION
OF LEGISLATIVE POWER TO THE COMMISSION.  E.G., ID., AT 2352, 2426 -
2427, 2579, 2794, 2875.  THE MATTER WAS VIGOROUSLY DEBATED; AND
ULTIMATELY SENATOR HATCH, THE PRINCIPAL PROPONENT AND MANAGER OR THE
BILL, OFFERED A SUBSTITUTE FOR ^ 15, ID., AT 1918 AND 1937, LIMITING
THE REACH OF THE PROHIBITION TO THOSE SAME ACTIVITIES THAT THE
COMMISSION "HAS HERETOFORE DETERMINED ARE AT THE TIME OF THE PASSAGE OF
THIS ACT PROHIBITED ON THE PART OF EMPLOYEES" IN THE CLASSIFIED SERVICE
BY THE SIMILAR PROVISION IN CIVIL SERVICE RULE I.  /17/  THE MATTER WAS
FURTHER DEBATED, AND THE AMENDMENT CARRIED.  ID., AT 2958 - 2959. 

THE DISTRICT COURT AND APPELLEES CONSTRUE ^ 15, NOW PART OF ^ 7324
(A)(2), AS INCORPORATING EACH OF THE SEVERAL THOUSAND ADJUDICATIONS OF
THE CIVIL SERVICE COMMISSION UNDER CIVIL SERVICE RULE I, MANY OF WHICH
ARE SAID TO BE UNDISCOVERABLE, INCONSISTENT, OR INCAPABLE OF YIELDING
ANY MEANINGFUL RULES TO GOVERN PRESENT OR FUTURE CONDUCT. 

[[HC571'(ORIGINAL DOCUMENT PAGE 571)'  IN ANY EVENT, THE DISTRICT
COURT HELD THE PROHIBITION AGAINST TAKING AN ACTIVE PART IN POLITICAL
MANAGEMENT AND POLITICAL CAMPAIGNS TO BE ITSELF AN INSUFFICIENT GUIDE
TO EMPLOYEE BEHAVIOR AND THOUGHT THE DEFINITIONAL ADDENDUM OF ^ 15 ONLY
ADDED ADDITIONAL CONFUSION BY REFERRING THE CONCERNED EMPLOYEES TO AN
IMPENETRABLE JUNGLE OF COMMISSION PROCEEDINGS, ORDERS, AND RULINGS. 
346 F.SUPP., AT 582 - 583, 585. 

WE TAKE QUITE A DIFFERENT VIEW OF THE STATUTE.  AS WE SEE IT, OUR
TASK IS NOT TO DESTROY THE ACT IF WE CAN, BUT TO CONSTRUE IT, IF
CONSISTENT WITH THE WILL OF CONGRESS, SO AS TO COMPORT WITH
CONSTITUTIONAL LIMITATIONS.  WITH THIS IN MIND AND HAVING EXAMINED WITH
SOME CARE THE PROCEEDINGS SURROUNDING THE PASSAGE OF THE 1940 ACT AND
ADOPTION OF THE SUBSTITUTE FOR ^ 15, WE THINK IT APPEARS PLAINLY ENOUGH
THAT CONGRESS INTENDED TO DEPRIVE THE CIVIL SERVICE COMMISSION OF
RULEMAKING POWER IN THE SENSE OF EXERCISING A SUBORDINATE LEGISLATIVE
ROLE IN FASHIONING A MORE EXPANSIVE DEFINITION OF THE KIND OF CONDUCT
THAT WOULD VIOLATE THE PROHIBITION AGAINST TAKING AN ACTIVE PART IN
POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNS.  BUT IT IS EQUALLY PLAIN,
WE THINK, THAT CONGRESS ACCEPTED THE FACT THAT THE COMMISSION HAD BEEN
PERFORMING ITS INVESTIGATIVE AND ADJUDICATIVE ROLE UNDER CIVIL SERVICE
RULE I SINCE 1907 AND THAT THE COMMISSION HAD, ON A CASE-BY-CASE BASIS,
FLESHED OUT THE MEANING OF RULE I AND SO DEVELOPED A BODY OF LAW WITH
RESPECT TO WHAT PARTISAN CONDUCT BY FEDERAL EMPLOYEES WAS FORBIDDEN BY
THE RULE.  86 CONG. REC. 2342, 2353. 

[[HC572'(ORIGINAL DOCUMENT PAGE 572)'  IT IS ALSO APPARENT, IN OUR
VIEW, THAT THE RULES THAT HAD EVOLVED OVER THE YEARS FROM REPEATED
ADJUDICATIONS WERE SUBJECT TO SUFFICIENTLY CLEAR AND SUMMARY STATEMENT
FOR THE GUIDANCE OF THE CLASSIFIED SERVICE.  MANY TIMES DURING THE
DEBATE ON THE FLOOR OF THE SENATE, SENATOR HATCH AND OTHERS REFERRED TO
A SUMMARY LIST OF SUCH PROHIBITIONS, E.G., ID., AT 2929, 2937 - 2938,
2942 - 2943, 2949, 2952 - 2953, THE SENATOR'S ULTIMATE REFERENCE BEING
TO CIVIL SERVICE FORM NO. 1236 OF SEPTEMBER 1939, THE PERTINENT PORTION
OF WHICH HE PLACED IN THE RECORD, ID., AT 2938 - 2940, /18/  AND WHICH
WAS THE COMMISSION'S THEN-CURRENT EFFORT TO RESTATE THE PREVAILING
PROHIBITIONS OF CIVIL SERVICE RULE I, AS SPELLED OUT IN ITS
ADJUDICATIONS TO THAT DATE. 

[[HC573'(ORIGINAL DOCUMENT PAGE 573)'  IT WAS THIS ADMINISTRATIVE
RESTATEMENT OF CIVIL SERVICE RULE I LAW, MODIFIED TO THE EXTENT
NECESSARY TO REFLECT THE PROVISIONS OF THE 1939 AND 1940 ACTS
THEMSELVES, THAT, IN OUR VIEW, CONGRESS INTENDED TO SERVE AS ITS
DEFINITION OF THE GENERAL PROSCRIPTION AGAINST PARTISAN ACTIVITIES. 
/19/  IT WAS WITHIN THE LIMITS OF THESE RULES THAT THE CIVIL SERVICE
COMMISSION WAS TO PROCEED TO PERFORM ITS ROLE UNDER THE STATUTE. 

[[HC574'(ORIGINAL DOCUMENT PAGE 574)' 

NOT ONLY DID CONGRESS EXPECT THE COMMISSION TO CONTINUE ITS
ACCUSTOMED ROLE WITH RESPECT TO FEDERAL EMPLOYEES, BUT ALSO IN ^ 12(B)
OF THE 1940 ACT CONGRESS EXPRESSLY ASSIGNED THE COMMISSION THE
ENFORCEMENT TASK WITH RESPECT TO STATE EMPLOYEES NOW COVERED BY THE
ACT.  THE COMMISSION WAS TO ISSUE NOTICE, HOLD HEARINGS, ADJUDICATE,
AND ENFORCE. 

[[HC575'(ORIGINAL DOCUMENT PAGE 575)'  THIS PROCESS, INEVITABLY AND
PREDICTABLY, WOULD ENTAIL FURTHER DEVELOPMENT OF THE LAW WITHIN THE
BOUNDS OF, AND NECESSARILY NO MORE SEVERE THEN, THE 1940 RULES AND
WOULD BE PRODUCTIVE OF A MORE REFINED DEFINITION OF WHAT CONDUCT WOULD
OR WOULD NOT VIOLATE THE STATUTORY PROHIBITION OF TAKING AN ACTIVE PART
IN POLITICAL MANAGEMENT AND POLITICAL CAMPAIGNS. 

IT IS THUS NOT SURPRISING THAT THERE WERE LATER EDITIONS OF FORM
1236, /20/  OR THAT IN 1970 THE COMMISSION AGAIN PURPORTED TO RESTATE
THE LAW OF FORBIDDEN POLITICAL ACTIVITY AND, INFORMED BY YEARS OF
INTERVENING ADJUDICATIONS, AGAIN SOUGHT TO DEFINE THOSE ACTS WHICH ARE
FORBIDDEN AND THOSE WHICH ARE PERMITTED BY THE HATCH ACT.  THESE
REGULATIONS, 5 CFR PT. 733, ARE WHOLLY LEGITIMATE DESCENDANTS OF THE
1940 RESTATEMENT ADOPTED BY CONGRESS AND WERE ARRIVED AT BY A PROCESS
THAT CONGRESS NECESSARILY ANTICIPATED WOULD OCCUR DOWN THROUGH THE
YEARS.  WE ACCEPT THEM AS THE CURRENT AND, IN MOST RESPECTS, THE
LONGSTANDING INTERPRETATIONS OF THE STATUTE BY THE AGENCY CHARGED WITH
ITS INTERPRETATION AND ENFORCEMENT.  IT IS TO THESE REGULATIONS
PURPORTING TO CONSTRUE ^ 7324 AS ACTUALLY APPLIED IN PRACTICE, AS WELL
AS TO THE STATUTE ITSELF, WITH ITS VARIOUS EXCLUSIONS, THAT WE ADDRESS
OURSELVES IN REJECTING THE CLAIM THAT THE ACT IS UNCONSTITUTIONALLY
VAGUE AND OVERBROAD.  LAW STUDENTS RESEARCH COUNCIL V. WADMOND, 401
U.S. 154, 162 - 163 (1971); CF. GOODING V. WILSON, 405 U.S. 518, 520 -
521 (1972). 

WHATEVER MIGHT BE THE DIFFICULTY WITH A PROVISION AGAINST TAKING
"ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS," THE
ACT SPECIFICALLY PROVIDES THAT THE EMPLOYEE RETAINS THE RIGHT TO VOTE
AS HE CHOOSES AND TO EXPRESS HIS OPINION ON POLITICAL SUBJECTS AND
CANDIDATES.  THE ACT EXEMPTS RESEARCH AND EDUCATIONAL ACTIVITIES
SUPPORTED BY THE DISTRICT OF COLUMBIA OR BY RELIGIOUS, PHILANTHROPIC,
OR CULTURAL ORGANIZATIONS, 5 U.S.C. ^ 7324(C); AND ^ 7326 EXEMPTS
NONPARTISAN POLITICAL ACTIVITY:  QUESTIONS, THAT IS, THAT ARE NOT
IDENTIFIED WITH NATIONAL OR STATE POLITICAL PARTIES ARE NOT COVERED BY
THE ACT, INCLUDING ISSUES WITH RESPECT TO CONSTITUTIONAL AMENDMENTS,
REFERENDUMS, APPROVAL OF MUNICIPAL ORDINANCES, AND THE LIKE. 

[[HC576'(ORIGINAL DOCUMENT PAGE 576)'  MOREOVER, THE PLAIN IMPORT OF
THE 1940 AMENDMENT TO THE HATCH ACT IS THAT THE PROSCRIPTION AGAINST
TAKING AN ACTIVE PART IN THE PROSCRIBED ACTIVITIES IS NOT OPEN-ENDED
BUT IS LIMITED TO THOSE RULES AND PROSCRIPTIONS THAT HAD BEEN DEVELOPED
UNDER CIVIL SERVICE RULE I UP TO THE DATE OF THE PASSAGE OF THE 1940
ACT.  THOSE RULES, AS REFINED BY FURTHER ADJUDICATIONS WITHIN THE OUTER
LIMITS OF THE 1940 RULES, WERE RESTATED BY THE COMMISSION IN 1970 IN
THE FORM OF REGULATIONS SPECIFYING THE CONDUCT THAT WOULD BE PROHIBITED
OR PERMITTED BY ^ 7324 AND ITS COMPANION SECTIONS. 

WE HAVE SET OUT THESE REGULATIONS IN THE MARGIN.  /21/  WE SEE
NOTHING IMPERMISSIBLY VAGUE IN 5 CFR ^ 733.122, WHICH SPECIFIES IN
SEPARATE PARAGRAPHS THE VARIOUS ACTIVITIES DEEMED TO BE PROHIBITED BY ^
7324(A)(2). 

[[HC577'(ORIGINAL DOCUMENT PAGE 577)'  THERE MIGHT BE QUIBBLES ABOUT
THE MEANING OF TAKING AN "ACTIVE PART IN MANAGING" OR ABOUT "ACTIVELY
PARTICIPATING IN. . . FUND-RAISING" OR ABOUT THE MEANING OF BECOMING A
"PARTISAN"  CANDIDATE FOR OFFICE; BUT THERE ARE LIMITATIONS IN THE
ENGLISH LANGUAGE WITH RESPECT TO BEING BOTH SPECIFIC AND MANAGEABLY
BRIEF, AND IT SEEMS TO US THAT ALTHOUGH THE PROHIBITIONS MAY NOT
SATISFY THOSE INTENT ON FINDING FAULT AT ANY COST, THEY ARE SET OUT IN
TERMS THAT THE ORDINARY PERSON EXERCISING ORDINARY COMMON SENSE CAN
SUFFICIENTLY UNDERSTAND AND COMPLY WITH, WITHOUT SACRIFICE TO THE
PUBLIC INTEREST.  "(THE GENERAL CLASS OF OFFENSES TO WHICH . . . (THE
PROVISIONS ARE) DIRECTED IS PLAINLY WITHIN (THEIR) TERMS . . . (AND
THEY) WILL NOT BE STRUCK DOWN AS VAGUE, EVEN THOUGH MARGINAL CASES
COULD BE PUT WHERE DOUBTS MIGHT ARISE."  UNITED STATES V. HARRISS, 347
U.S. 612, 618 (1954). 

[[HC579'(ORIGINAL DOCUMENT PAGE 579)'  SURELY, THERE SEEMED TO BE
LITTLE QUESTION IN THE MINDS OF THE PLAINTIFFS WHO BROUGHT THIS LAWSUIT
AS TO THE MEANING OF THE LAW, OR AS TO WHETHER OR NOT THE CONDUCT IN
WHICH THEY DESIRE TO ENGAGE WAS OR WAS NOT PROHIBITED BY THE ACT. 

THE ACT PERMITS THE INDIVIDUAL EMPLOYEE TO "EXPRESS HIS OPINION ON
POLITICAL SUBJECTS AND CANDIDATES," 5 U.S.C. ^ 7324(B); AND THE
CORRESPONDING REGULATION, 5 CFR ^ 733.111(A)(2), PRIVILEGES THE
EMPLOYEE TO "(EXPRESS HIS OPINION AS AN INDIVIDUAL PRIVATELY AND
PUBLICLY ON POLITICAL SUBJECTS AND CANDIDATES."  THE SECTION OF THE
REGULATIONS WHICH PURPORTS TO STATE THE PARTISAN ACTS THAT ARE
PROSCRIBED, ID., ^ 733.122, FORBIDS IN SUBPARAGRAPH (A)(10) THE
ENDORSEMENT OF "A PARTISAN CANDIDATE FOR PUBLIC OFFICE OR POLITICAL
PARTY OFFICE IN A POLITICAL ADVERTISEMENT, A BROADCAST, CAMPAIGN
LITERATURE, OR SIMILAR MATERIAL," AND IN SUBPARAGRAPH (A)(12),
PROHIBITS "(ADDRESSING A CONVENTION, CAUCUS, RALLY, OR SIMILAR
GATHERING OF A POLITICAL PARTY IN SUPPORT OF OR IN OPPOSITION TO A
PARTISAN CANDIDATE FOR PUBLIC OFFICE OR POLITICAL PARTY OFFICE." 
ARGUABLY, THERE ARE PROBLEMS IN MESHING ^ 733.111(A)(2) WITH ^^
733.122(A)(10) AND (12), BUT WE THINK THE LATTER PROHIBITIONS
SUFFICIENTLY CLEARLY CARVE OUT THE PROHIBITED POLITICAL CONDUCT FROM
THE EXPRESSIVE ACTIVITY PERMITTED BY THE PRIOR SECTION TO SURVIVE ANY
ATTACK ON THE GROUND OF VAGUENESS OR IN THE NAME OF ANY OF THOSE
POLICIES THAT DOCTRINE MAY BE DEEMED TO FURTHER. 

IT IS ALSO IMPORTANT IN THIS RESPECT THAT THE COMMISSION HAS
ESTABLISHED A PROCEDURE BY WHICH AN EMPLOYEE IN DOUBT ABOUT THE
VALIDITY OF A PROPOSED COURSE OF CONDUCT MAY SEEK AND OBTAIN ADVICE
FROM THE COMMISSION AND THEREBY REMOVE ANY DOUBT THERE MAY BE AS TO THE
MEANING OF THE LAW, AT LEAST INSOFAR AS THE COMMISSION ITSELF IS
CONCERNED.  /22/ 

[[HC580'(ORIGINAL DOCUMENT PAGE 580)' 

NEITHER DO WE DISCERN ANYTHING FATALLY OVERBROAD ABOUT THE STATUTE
WHEN IT IS CONSIDERED IN CONNECTION WITH THE COMMISSION'S CONSTRUCTION
OF ITS TERMS REPRESENTED BY THE 1970 REGULATIONS WE NOW HAVE BEFORE US.
THE MAJOR DIFFICULTIES IN THIS RESPECT AGAIN RELATE TO THE PROHIBITION
IN ^^ 733.122(A)(10) AND (12) ON ENDORSEMENTS IN ADVERTISEMENTS,
BROADCASTS, AND LITERATURE AND ON SPEAKING AT POLITICAL PARTY MEETINGS
IN SUPPORT OF PARTISAN CANDIDATES FOR PUBLIC OR PARTY OFFICE.  BUT
THESE RESTRICTIONS ARE CLEARLY STATED, THEY ARE POLITICAL ACTS NORMALLY
PERFORMED ONLY IN THE CONTEXT OF PARTISAN CAMPAIGNS BY ONE TAKING AN
ACTIVE ROLE IN THEM, AND THEY ARE SUSTAINABLE FOR THE SAME REASONS THAT
THE OTHER ACTS OF POLITICAL CAMPAIGNING ARE CONSTITUTIONALLY
PROSCRIBABLE.  THEY DO NOT, THEREFORE, RENDER THE REMAINDER OF THE
STATUTE VULNERABLE BY REASON OF OVERBREADTH. 

EVEN IF THE PROVISIONS FORBIDDING PARTISAN CAMPAIGN ENDORSEMENTS AND
SPEECHMAKING WERE TO BE CONSIDERED IN SOME RESPECTS UNCONSTITUTIONALLY
OVERBROAD, WE WOULD NOT INVALIDATE THE ENTIRE STATUTE AS THE DISTRICT
COURT DID.  THE REMAINDER OF THE STATUTE, AS WE HAVE SAID, COVERS A
WHOLE RANGE OF EASILY IDENTIFIABLE AND CONSTITUTIONALLY PROSCRIBABLE
PARTISAN CONDUCT ON THE PART OF FEDERAL EMPLOYEES, AND THE EXTENT TO
WHICH PURE EXPRESSION IS IMPERMISSIBLY THREATENED, IF AT ALL, BY ^^
733.122(A)(10) AND (12), DOES NOT IN OUR VIEW MAKE THE STATUTE
SUBSTANTIALLY OVERBROAD AND SO INVALID ON ITS FACE.  BROADRICK V.
OKLAHOMA, POST, P. 601.     [[HC581'(ORIGINAL DOCUMENT PAGE 581)' 

FOR THE FOREGOING REASONS, THE JUDGMENT OF THE DISTRICT COURT IS
REVERSED. 

            SO ORDERED. 

/1/  THE HATCH ACT IS FOUND IN TITLES 5 AND 18 OF THE U.S.C.  BOTH
OF WHICH HAVE BEEN ENACTED INTO POSITIVE LAW.  80 STAT. 378, 62 STAT.
683.  SECTION 7324(A)(2) OF TITLE 5 IS DERIVED FROM TWO SECTIONS IN THE
ACT, WITH THE PROHIBITION AGAINST CERTAIN POLITICAL ACTIVITY BEING
FOUND IN ^ 9(A), 53 STAT. 1148, WHILE THE PORTION DEFINING THE
PROSCRIBED ACTIVITY STEMS FROM ^ 15, 54 STAT. 771. 

/2/  THE COMPLAINT MADE THE SAME ALLEGATIONS WITH RESPECT TO 5
U.S.C. ^ 1502(A)(3), THE PROVISION TAKEN FROM ^ 12 OF THE HATCH ACT, 54
STAT. 767, WHICH IMPOSES SIMILAR PROHIBITIONS ON CERTAIN STATE
EMPLOYEES WORKING IN PROGRAMS THAT ARE FEDERALLY FINANCED.  THE
DISTRICT COURT, HOWEVER, WHILE HOLDING THE CLASS ACTION WAS PROPER WITH
RESPECT TO FEDERAL EMPLOYEES, HELD THAT NONE OF THE PARTIES WAS
PROPERLY REPRESENTATIVE OF STATE EMPLOYEES COVERED BY THE ACT.  346 F.
SUPP. 578, 579, N.1.  HENCE ONLY ^ 7324(A)(2) WITH RESPECT TO FEDERAL
EMPLOYEES IS BEFORE US IN THIS CASE. 

/3/  THE UNION ALLEGED THAT ITS MEMBERS WERE DESIROUS OF 

"A.  RUNNING IN LOCAL ELECTIONS FOR SUCH OFFICES AS SCHOOL BOARD
MEMBER, CITY COUNCIL MEMBER OR MAYOR. 

"B.  WRITING LETTERS ON POLITICAL SUBJECTS TO NEWSPAPERS. 

"C.  PARTICIPATING AS A DELEGATE IN A POLITICAL CONVENTION AND
RUNNING FOR OFFICE IN A POLITICAL PARTY. 

"D.  CAMPAIGNING FOR CANDIDATES FOR POLITICAL OFFICE."  APP. 6 - 7. 

THE DEMOCRATIC AND REPUBLICAN COMMITTEES COMPLAINED THAT THEY HAD
BEEN DETERRED "FROM SEEKING DESIRABLE CANDIDATES WHO ARE FEDERAL OR
STATE EMPLOYEES COVERED BY THE HATCH ACT TO RUN ON THE DEMOCRATIC OR
REPUBLICAN TICKET FOR STATE AND LOCAL OFFICES.  IN ADDITION, NUMEROUS
INDIVIDUALS WHO WOULD OTHERWISE DESIRE AND BE AVAILABLE TO BECOME
MEMBERS OF PLAINTIFF COMMITTEES HAVE BEEN AND CONTINUE TO BE DETERRED
FROM DOING SO BY SAID PROVISIONS OF THE HATCH ACT."  ID., AT 7. 

PLAINTIFF HUMMEL ALLEGED THAT HE DESIRED TO ENGAGE IN A WIDE VARIETY
OF POLITICAL ACTIVITIES INCLUDING "(1) PARTICIPATION AS A DELEGATE IN
CONVENTIONS OF A POLITICAL PARTY; (2) PUBLIC ENDORSEMENT OF CANDIDATES
OF A POLITICAL PARTY FOR LOCAL, STATE AND NATIONAL OFFICE; (3) WORK AT
POLLING PLACES ON BEHALF OF A POLITICAL PARTY DURING ELECTIONS; (4)
HOLDING OFFICE IN A POLITICAL CLUB.  AS A RESULT OF INQUIRIES OF THE
CIVIL SERVICE COMMISSION AND HIS KNOWLEDGE OF THE HATCH ACT, PLAINTIFF
HUMMEL IS AWARE THAT SUCH ACTIVITIES VIOLATE THE HATCH ACT."  ID., AT 7
- 8. 

PLAINTIFF PINHO ALLEGED THAT SHE DESIRED TO BECOME A PRECINCT
DEMOCRATIC COMMITTEE WOMAN IN THE ARLINGTON COUNTY DEMOCRATIC COMMITTEE
AND TO CAMPAIGN FOR CERTAIN DEMOCRATIC CANDIDATES FOR THE UNITED STATES
HOUSE OF REPRESENTATIVES AND FOR THE UNITED STATES SENATE.  ID., AT 8. 

PLAINTIFF MANDICINO ALLEGED THAT AS AN ACTIVE MEMBER AND OFFICER OF
PLAINTIFF UNION HE "WAS COMPELLED TO ENGAGE IN POLITICAL ACTIVITIES
PROHIBITED BY . . . THE HATCH ACT IN ORDER TO CARRY OUT THE
RESPONSIBILITIES OF HIS OFFICES," AND THAT HE HAD ENGAGED IN THOSE
"ACTIVITIES INCLUDING HOUSE-TO-HOUSE CAMPAIGNING FOR CANDIDATES OF
POLITICAL PARTIES, PARTICIPATION AS A DELEGATE IN CONVENTIONS OF A
POLITICAL PARTY, ACTIVE PARTICIPATION IN THE AFFAIRS OF A POLITICAL
PARTY, AND FUND RAISING ON BEHALF OF POLITICAL PARTIES AND
CANDIDATES."  IBID. 

PLAINTIFF WYLIE ALLEGED THAT HE HAD RESIGNED HIS POSITION IN THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, A POSITION IN THE
COMPETITIVE CIVIL SERVICE, TO RUN AS A REPUBLICAN CANDIDATE FOR THE
MARYLAND STATE SENATE.  DURING THE CAMPAIGN HE WAS EMPLOYED AS A
CONSULTANT BY THE DEPARTMENT ON A PART-TIME BASIS.  AFTER HIS DEFEAT HE
SOUGHT RE-EMPLOYMENT ON A PERMANENT BASIS BUT BECAUSE OF THE DISPUTE
OVER HIS POLITICAL ACTIVITIES WHILE ACTING AS A CONSULTANT, HIS RE
EMPLOYMENT HAD BEEN DELAYED FOR A PERIOD OF TIME, ALL TO HIS FINANCIAL
LOSS AND MENTAL ANGUISH.  ID., AT 9. 

PLAINTIFF GEE ALLEGED THAT HE DESIRED TO, BUT DID NOT, FILE AS A
CANDIDATE FOR THE OFFICE OF BOROUGH COUNCILMAN IN HIS LOCAL COMMUNITY
FOR FEAR THAT HIS PARTICIPATION IN A PARTISAN ELECTION WOULD ENDANGER
HIS JOB.  IBID. 

PLAINTIFF MYERS ALLEGED THAT HE DESIRED TO RUN AS A REPUBLICAN
CANDIDATE IN THE 1971 PARTISAN ELECTION FOR THE MAYOR OR WEST
LAFAYETTE, INDIANA, AND THAT HE WOULD DO SO EXCEPT FOR FEAR OF LOSING
HIS JOB BY REASON OF VIOLATION OF THE HATCH ACT.  ID., AT 10. 

/4/  SECTION 15 OF THE HATCH ACT, NOW CODIFIED IN 5 U.S.C. ^ 7324
(A)(2), SEE N. 1, SUPRA, DEFINED THE PROHIBITION AGAINST TAKING "AN
ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS"  AS
PROSCRIBING THOSE ACTIVITIES THAT THE CIVIL SERVICE COMMISSION HAD
DETERMINED UP TO THE TIME OF THE PASSAGE OF THE HATCH ACT WERE
PROHIBITED FOR CLASSIFIED CIVIL SERVICE EMPLOYEES.  THE ROLE AND SCOPE
OF ^ 15 ARE DISCUSSED IN THE TEXT, INFRA. 

/5/  SENATOR HATCH QUOTED FROM THIS ORDER IN THE DEBATE ON THE 1940
AMENDMENTS TO THE HATCH ACT, 86 CONG. REC. 2433 - 2434. 

/6/  IN 1886, FOR EXAMPLE, PRESIDENT CLEVELAND, THROUGH AN EXECUTIVE
ORDER, WARNED FEDERAL EMPLOYEES "AGAINST THE USE OF THEIR OFFICIAL
POSITIONS IN ATTEMPTS TO CONTROL POLITICAL MOVEMENTS IN THEIR
LOCALITIES."  8 J. RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS
494 (1899). 

/7/  THE 1940 AMENDMENTS TO THE HATCH ACT, 54 STAT. 767 - 772, ALSO
PROVIDED, INTER ALIA, FOR A LIMITATION ON CERTAIN CAMPAIGN
CONTRIBUTIONS, ^ 13; FOR FEDERAL EMPLOYEES IN MUNICIPALITIES IN THE
VICINITY OF THE DISTRICT OF COLUMBIA, WITH THE APPROVAL OF THE
COMMISSION, TO ENGAGE IN POLITICAL ACTIVITY, ^ 16; AND FOR A LIMITATION
ON RECEIPTS AND EXPENDITURES OF POLITICAL COMMITTEES, ^ 20. 

/8/  H.R. 2372, 91ST CONG., 1ST SESS.; S. 2032, 92D CONG., 1ST
SESS.; S. 3417, 92D CONG., 2D SESS.' S. 235, 93D CONG., 1ST SESS.  FOR
THE LEGISLATION RECOMMENDED BY THE COMMISSION ON POLITICAL ACTIVITY,
SEE 1 REPORT OF COMMISSION ON POLITICAL ACTIVITY OF GOVERNMENT
PERSONNEL, FINDINGS AND RECOMMENDATIONS 44 - 60 (1968). 

/9/  H.R. 19214, 91ST CONG., 2D SESS.; H.R. 914, 92D CONG., 1ST
SESS.; S. 3374, 92D CONG., 2D SESS.; H.R. 668, S. 350, 93D CONG., 1ST
SESS. 

/10/  HEARINGS ON S. 3374 AND S. 3417 BEFORE THE SENATE COMMITTEE ON
POST OFFICE AND CIVIL SERVICE, 92D CONG., 2D SESS.  CONGRESS HAS
EXTENDED THE RESTRICTIONS ON POLITICAL ACTIVITY TO PERSONS NOT
PREVIOUSLY COVERED.  THE ECONOMIC OPPORTUNITY ACT OF 1964, ^ 603, 78
STAT. 530, AS AMENDED, 42 U.S.C. ^ 2943, EXTENDED THE RESTRICTIONS TO
CERTAIN EMPLOYEES OF PRIVATE CORPORATIONS; THE POSTAL REORGANIZATION
ACT, 84 STAT. 719, MADE THE PROVISIONS APPLICABLE TO THE POSTAL
SERVICE, 39 U.S.C. ^ 410; AND THE EMERGENCY EMPLOYMENT ACT OF 1971, ^
12(H), 85 STAT. 154, EXTENDED THE PROVISIONS TO PERSONNEL EMPLOYED IN
THE ADMINISTRATION OF PROGRAMS ESTABLISHED UNDER THE ACT, 42 U.S.C. ^
4881(H) (1970 ED., SUPP. I). 

/11/  SEE GENERALLY BROADRICK V. OKLAHOMA, POST, P. 601, AND ID., AT
604 - 605, N. 2. 

/12/  IN THE 1940 DEBATE OVER AMENDMENTS TO THE HATCH ACT, IT WAS
FREQUENTLY STATED THAT THE ONLY OBJECTIONABLE PROVISIONS WERE THOSE
RESTRICTIONS IN ^ 9 AND THE PROPOSED ^ 12 AGAINST VOLUNTARY POLITICAL
ACTIVITY, E.G., 86 CONG. REC. 2626, 2696, 2700, 2708, 2722.  IN
RESPONSE TO THE INQUIRY WHETHER HE WAS CONDEMNING THOSE "WHO, WITHOUT
ANY COERCION, VOLUNTARILY DESIRE TO TAKE A PART IN POLITICS," SENATOR
HATCH REPLIED THAT HE "WOULD DRAW THE LINE IF IT COULD BE DRAWN; BUT I
DEFY . . . (ANYONE) TO DRAW THAT LINE."  ID., AT 2626.  DURING THE 1967
HEARINGS BEFORE THE COMMISSION ON POLITICAL ACTIVITY THE THEN CHAIRMAN
OF THE CIVIL SERVICE COMMISSION NOTED THAT "ONE MAN'S COERCION IS
ANOTHER MAN'S PERSUASION," AND THAT "IN AN EMPLOYER/EMPLOYEE
RELATIONSHIP, THE EXTENT OF VOLUNTARYISM TENDS TO BE RATHER
SUBSTANTIALLY CIRCUMSCRIBED."  3 REPORT OF COMMISSION ON POLITICAL
ACTIVITY OF GOVERNMENT PERSONNEL, HEARINGS, 759 (1968). 

/13/  E.G., 18 U.S.C. ^ 594 (INTIMIDATION OF VOTERS); ^ 597
(EXPENDITURES TO INFLUENCE VOTING); ^ 602 (SOLICITATION OF POLITICAL
CONTRIBUTIONS); AND ^ 612 (PUBLICATION OR DISTRIBUTION OF POLITICAL
STATEMENTS). 

/14/  SEE, E.G., NORTHERN VIRGINIA REGIONAL PARK AUTHORITY V. U.S.
CIVIL SERVICE COMM'N, 437 F.2D 1346 (CA4), CERT. DENIED, 403 U.S. 936
(1971); FISHKIN V. U.S. CIVIL SERVICE COMM'N, 309 F.SUPP.  40 (ND CAL.
1969), APPEAL DISMISSED AS UNTIMELY, 396 U.S. 278 (1970); KEARNEY V.
MACY, 409 F.2D 847 (CA9 1969), CERT. DENIED, 397 U.S. 943 (1970);
ENGELHARDT V. U.S. CIVIL SERVICE COMM'N, 197 F.SUPP.  806 (MC ALA.
1961), AFF'D PER CURIAM, 304 F.2D 882 (CA5 1962). 

/15/  TITLE 5 U.S.C. ^ 7324 PROVIDES: 

"(A) AN EMPLOYEE IN AN EXECUTIVE AGENCY OR AN INDIVIDUAL EMPLOYED BY
THE GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY NOT-- 

"(1) USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF
INTERFERING WITH OR AFFECTING THE RESULT OF AN ELECTION; OR 

"(2) TAKE AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL
CAMPAIGNS.  "FOR THE PURPOSE OF THIS SUBSECTION, THE PHRASE 'AN ACTIVE
PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS' MEANS THOSE
ACTS OF POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNING WHICH WERE
PROHIBITED ON THE PART OF EMPLOYEES IN THE COMPETITIVE SERVICE BEFORE
JULY 19, 1940, BY DETERMINATIONS OF THE CIVIL SERVICE COMMISSION UNDER
THE RULES PRESCRIBED BY THE PRESIDENT. 

"(B) AN EMPLOYEE OR INDIVIDUAL TO WHOM SUBSECTION (A) OF THIS
HIS OPINION ON POLITICAL SUBJECTS AND CANDIDATES. 

"(C) SUBSECTION (A) OF THIS SECTION DOES NOT APPLY TO AN INDIVIDUAL
EMPLOYED BY AN EDUCATIONAL OR RESEARCH INSTITUTION, ESTABLISHMENT,
AGENCY, OR SYSTEM WHICH IS SUPPORTED IN WHOLE OR IN PART BY THE
DISTRICT OF COLUMBIA OR BY A RECOGNIZED RELIGIOUS, PHILANTHROPIC, OR
CULTURAL ORGANIZATION. 

"(D) SUBSECTION (A)(2) OF THIS SECTION DOES NOT APPLY TO-- 

"(1) AN EMPLOYEE PAID FROM THE APPROPRIATION FOR THE OFFICE OF THE
PRESIDENT; 

"(2) THE HEAD OR THE ASSISTANT HEAD OF AN EXECUTIVE DEPARTMENT OR
MILITARY DEPARTMENT; 

"(3) AN EMPLOYEE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVISE
AND CONSENT OF THE SENATE, WHO DETERMINES POLICIES TO BE PURSUED BY THE
UNITED STATES IN ITS RELATIONS WITH FOREIGN POWERS OR IN THE NATIONWIDE
ADMINISTRATION OF FEDERAL LAWS; 

"(4) THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA; OR 

"(5) THE RECORDER OF DEEDS OF THE DISTRICT OF COLUMBIA."  TITLE 5
U.S.C. ^ 7326 STATES: 

"SECTION 7324(A)(2) OF THIS TITLE DOES NOT PROHIBIT POLITICAL
ACTIVITY IN CONNECTION WITH-- 

"(1) AN ELECTION AND THE PRECEDING CAMPAIGN IF NONE OF THE
CANDIDATES IS TO BE NOMINATED OR ELECTED AT THAT ELECTION AS
REPRESENTING A PARTY ANY OF WHOSE CANDIDATES FOR PRESIDENTIAL ELECTOR
RECEIVED VOTES IN THE LAST PRECEDING ELECTION AT WHICH PRESIDENTIAL
ELECTORS WERE SELECTED; OR 

"(2) A QUESTION WHICH IS NOT SPECIFICALLY IDENTIFIED WITH A NATIONAL
OR STATE POLITICAL PARTY OR POLITICAL PARTY OF A TERRITORY OR
POSSESSION OF THE UNITED STATES.  "FOR THE PURPOSE OF THIS SECTION,
QUESTIONS RELATING TO CONSTITUTIONAL AMENDMENTS, REFERENDUMS, APPROVAL
OF MUNICIPAL ORDINANCES, AND OTHERS OF A SIMILAR CHARACTER, ARE DEEMED
NOT SPECIFICALLY IDENTIFIED WITH A NATIONAL OR STATE POLITICAL PARTY OR
POLITICAL PARTY OF A TERRITORY OR POSSESSION OF THE UNITED STATES." 

/16/  SECTION 15, AS REPORTED OUT OF THE SENATE COMMITTEE,
PROVIDED: 

"SEC. 15.  THE UNITED STATES CIVIL SERVICE COMMISSION IS HEREBY
AUTHORIZED AND DIRECTED TO PROMULGATE, AS SOON AS PRACTICABLE, RULES OR
REGULATIONS DEFINING, FOR THE PURPOSES OF THIS ACT, THE TERM 'ACTIVE
PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS.'  AFTER THE
PROMULGATION OF SUCH RULES OR REGULATIONS, THE TERM 'ACTIVE PART IN
POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS,' AS USED IN THIS ACT,
SHALL HAVE THE MEANING ASCRIBED TO IT BY SUCH RULES OR REGULATIONS. 
THE COMMISSION IS AUTHORIZED TO AMEND SUCH RULES OR REGULATIONS FROM
TIME TO TIME AS IT DEEMS NECESSARY."  86 CONG. REC. 2352. 

/17/  THE SUBSTITUTE FOR THE SECTION RECOMMENDED BY THE COMMITTEE
PROVIDED: 

"SEC. 15.  THE PROVISIONS OF THIS ACT WHICH PROHIBIT PERSONS TO WHOM
SUCH PROVISIONS APPLY FROM TAKING ANY ACTIVE PART IN POLITICAL
MANAGEMENT OR IN POLITICAL CAMPAIGNS SHALL BE DEEMED TO PROHIBIT THE
SAME ACTIVITIES ON THE PART OF SUCH PERSONS AS THE UNITED STATES CIVIL
SERVICE COMMISSION HAS HERETOFORE DETERMINED ARE AT THE TIME OF THE
PASSAGE OF THIS ACT PROHIBITED ON THE PART OF EMPLOYEES IN THE
CLASSIFIED CIVIL SERVICE OF THE UNITED STATES BY THE PROVISIONS OF THE
CIVIL-SERVICE RULES PROHIBITING SUCH EMPLOYEES FROM TAKING ANY ACTIVE
PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS."  86 CONG.REC. 
2937 (EMPHASIS ADDED). 

AFTER THE SUBSTITUTE WAS INTRODUCED, ID., AT 2928, SENATOR HATCH
MADE A "SLIGHT MODIFICATION," ID., AT 2937, AND ADDED THE PHRASE IN
ITALICS ABOVE. 

/18/  SEE APPENDIX, INFRA, P. 581.  SENATOR HATCH DID NOT HAVE FORM
1236 WITH HIM ON THE FLOOR DURING DEBATE ON ^ 15 AND PROVIDED THE
PERTINENT PORTION FROM THE FORM FOR INSERTION INTO THE CONGRESSIONAL
RECORD AFTER DEBATE HAD BEEN COMPLETED ON THE SECTION.  86 CONG. REC.
2938 - 2940.  HOWEVER, THE SENATOR HAD PROVIDED THE SENATE WITH A CARD
LISTING 18 RULES WHICH WERE DESCRIBED AS THE CIVIL SERVICE COMMISSION'S
CONSTRUCTION OF CIVIL SERVICE RULE I, ID., AT 2937 - 2938, 2943.  THE
CARD, PREPARED BY SENATOR HATCH WITH ASSISTANCE FROM THE COMMISSION,
WAS A SUMMARY OF PERTINENT PORTIONS OF FORM 1236, ID., AT 2937 - 2938,
AND WAS INSERTED INTO THE CONGRESSIONAL RECORD, ID., AT 2943.  IT
PROVIDED:     "THE PERTINENT LANGUAGE IN SECTION 9 IS PRACTICALLY A
DUPLICATION OF THE CIVIL-SERVICE RULE PROHIBITING POLITICAL ACTIVITY OF
EMPLOYEES UNDER THE CLASSIFIED CIVIL SERVICE. 

"THE SECTION PROVIDES IN SUBSTANCE, AMONG OTHER THINGS, THAT NO SUCH
OFFICER OR EMPLOYEE SHALL TAKE ANY ACTIVE PART IN POLITICAL MANAGEMENT
OR IN POLITICAL CAMPAIGNS.     "THE SAME LANGUAGE OF THE CIVIL-SERVICE
RULE HAS BEEN CONSTRUED AS FOLLOWS: 

"1.  RULE PROHIBITS PARTICIPATION NOT ONLY IN NATIONAL POLITICS BUT
ALSO IN STATE, COUNTY, AND MUNICIPAL POLITICS. 

"2.  TEMPORARY EMPLOYEES, SUBSTITUTES, AND PERSONS ON FURLOUGH OR
LEAVE OF ABSENCE WITH OR WITHOUT PAY ARE SUBJECT TO THE REGULATION. 

"3.  WHATEVER AN OFFICIAL OR EMPLOYEE MAY NOT DO DIRECTLY HE MAY NOT
DO INDIRECTLY OR THROUGH ANOTHER. 

"4.  CANDIDACY FOR OR SERVICE AS DELEGATE, ALTERNATE, OR PROXY IN
ANY POLITICAL CONVENTION IS PROHIBITED. 

"5.  SERVICE FOR OR ON ANY POLITICAL COMMITTEE IS PROHIBITED. 

"6.  ORGANIZING OR CONDUCTING POLITICAL RALLIES OR MEETINGS OR
TAKING ANY PART THEREIN EXCEPT AS A SPECTATOR IS PROHIBITED. 

"7.  EMPLOYEES MAY EXPRESS THEIR OPINIONS ON ALL SUBJECTS, BUT THEY
MAY NOT MAKE POLITICAL SPEECHES. 

"8.  EMPLOYEES MAY VOTE AS THEY PLEASE, BUT THEY MUST NOT SOLICIT
VOTES; MARK BALLOTS FOR OTHERS; HELP TO GET OUT VOTES; ACT AS CHECKERS,
MARKER, OR CHALLENGER FOR ANY PARTY OR ENGAGE IN OTHER ACTIVITY AT THE
POLES (SIC) EXCEPT THE CASTING OF HIS OWN BALLOT. 

"9.  AN EMPLOYEE MAY NOT SERVE AS ELECTION OFFICIAL UNLESS HIS
FAILURE OR REFUSAL SO TO DO WOULD BE A VIOLATION OF STATE LAW. 

"10.  IT IS POLITICAL ACTIVITY FOR AN EMPLOYEE TO PUBLISH OR BE
CONNECTED EDITORIALLY, MANAGERIALLY, OR FINANCIALLY WITH ANY POLITICAL
NEWSPAPER.  AN EMPLOYEE MAY NOT WRITE FOR PUBLICATION OR PUBLISH ANY
LETTER OR ARTICLE SIGNED OR UNSIGNED IN FAVOR OF OR AGAINST ANY
POLITICAL PARTY, CANDIDATE, OR FACTION. 

"11.  BETTING OR WAGERING UPON THE RESULTS OF A PRIMARY OR GENERAL
ELECTION IS POLITICAL ACTIVITY. 

"12.  ORGANIZATION OR LEADERSHIP OF POLITICAL PARADES IS PROHIBITED
BUT MARCHING IN SUCH PARADES IS NOT PROHIBITED. 

"13.  AMONG OTHER FORMS OF POLITICAL ACTIVITY WHICH ARE PROHIBITED
ARE DISTRIBUTION OF CAMPAIGN LITERATURE, ASSUMING POLITICAL LEADERSHIP,
AND BECOMING PROMINENTLY IDENTIFIED WITH POLITICAL MOVEMENTS, PARTIES,
OR FACTIONS OR WITH THE SUCCESS OR FAILURE OF SUPPORTING ANY CANDIDATE
FOR PUBLIC OFFICE. 

"14.  CANDIDACY FOR NOMINATION OR FOR THE ELECTION TO ANY NATIONAL,
STATE, COUNTY, OR MUNICIPAL OFFICE IS WITHIN THE PROHIBITION. 

,15.  ATTENDING CONVENTIONS AS SPECTATORS IS PERMITTED. 

"16.  AN EMPLOYEE MAY ATTEND A MASS CONVENTION OR CAUCUS AND CAST HIS
VOTE, BUT HE MAY NOT PASS THIS POINT. 

"17.  MEMBERSHIP IN A POLITICAL CLUB IS PERMITTED, BUT EMPLOYEES MAY
NOT BE OFFICERS OF THE CLUB NOR ACT AS SUCH. 

"18.  VOLUNTARY CONTRIBUTIONS TO CAMPAIGN COMMITTEES AND
ORGANIZATIONS ARE PERMITTED.  AN EMPLOYEE MAY NOT SOLICIT, COLLECT, OR
RECEIVE CONTRIBUTIONS.  CONTRIBUTIONS BY PERSONS RECEIVING REMUNERATION
FROM FUNDS APPROPRIATED FOR RELIEF PURPOSES ARE NOT PERMITTED." 

/19/  THAT ^ 15'S INCORPORATION OF THE CIVIL SERVICE COMMISSION
RESTATEMENT WAS INTENDED TO INCLUDE ONLY THOSE COMMISSION
INTERPRETATIONS CONSISTENT WITH THE HATCH ACT IS DEMONSTRATED BY THE
FOLLOWING COLLOQUY BETWEEN SENATORS HATCH AND MINTON, 86 CONG.REC. 
2871: 

"MR. MINTON.  THE RIGHT TO EXPRESS POLITICAL OPINIONS HAS BEEN
DEFINED BY THE CIVIL SERVICE COMMISSION TO MEAN THE PRIVATE EXPRESSION
OF SUCH OPINIONS. 

"MR. HATCH.  YES; THE WORD 'PRIVATELY' IS IN THE RULE OF THE CIVIL
SERVICE COMMISSION.  IT IS NOT IN . . . (^ 9 OF THE HATCH ACT). 

"MR. MINTON.  THE CIVIL SERVICE COMMISSION HAS DEFINED THE RIGHT TO
EXPRESS POLITICAL OPINIONS AS THE RIGHT TO DO SO PRIVATELY. 

"MR. HATCH.  MR. PRESIDENT, THAT IS BECAUSE THE WORD 'PRIVATELY'  IS
INCLUDED IN THE RULE OF THE CIVIL SERVICE COMMISSION.  THE WORD
'PRIVATELY' IS WRITTEN INTO THE RULE.  THAT IS THE WORD WHICH I DROPPED
OUT.  I DID IT DELIBERATELY, INTENTIONALLY, AND I WANT IT TO REMAIN
OUT." 

/20/  1942, 1944, AND 1966, THE TITLE BEING CHANGED IN THE 1966
EDITION TO POLITICAL ACTIVITY. 

/21/  THE PERTINENT REGULATIONS, APPEARING IN 5 CFR PT. 733,
PROVIDE:

        "PERMISSIBLE ACTIVITIES " ^ 733.111 PERMISSIBLE ACTIVITES. 

"(A) ALL EMPLOYEES ARE FREE TO ENGAGE IN POLITICAL ACTIVITY TO THE
EXTENT CONSISTENT WITH THE RESTRICTIONS IMPOSED BY LAW AND THIS
SUBPART.  EACH EMPLOYEE RETAINS THE RIGHT TO-- 

"(1) REGISTER AND VOTE IN ANY ELECTION; 

"(2) EXPRESS HIS OPINION AS AN INDIVIDUAL PRIVATELY AND PUBLICLY ON
POLITICAL SUBJECTS AND CANDIDATES; 

"(3) DISPLAY A POLITICAL PICTURE, STCKER, BADGE, OR BUTTON; 

"(4) PARTICIPATE IN THE NONPARTISAN ACTIVITIES OF A CIVIC,
COMMUNITY, SOCIAL, LABOR, OR PROFESSIONAL ORGANIZATION, OR OF A SIMILAR
ORGANIZATION; 

"(5) BE A MEMBER OF A POLITICAL PARTY OR OTHER POLITICAL
ORGANIZATION AND PARTICIPATE IN ITS ACTIVITIES TO THE EXTENT CONSISTENT
WITH LAW; 

"(6) ATTEND A POLITICAL CONVENTION, RALLY, FUND-RAISING FUNCTION; OR
OTHER POLITICAL GATHERING; 

"(7) SIGN A POLITICAL PETITION AS AN INDIVIDUAL; 

"(8) MAKE A FINANCIAL CONTRIBUTION TO A POLITICAL PARTY OR
ORGANIZATION; 

"(9) TAKE AN ACTIVE PART, AS A INDEPENDENT CANDIDATE, OR IN SUPPORT
OF AN INDEPENDENT CANDIDATE, IN A PARTISAN ELECTION COVERED BY ^
733.124; 

"(10) TAKE AN ACTIVE PART, AS A CANDIDATE OR IN SUPPORT OF A
CANDIDATE, IN A NONPARTISAN ELECTION; 

"(11) BE POLITICALLY ACTIVE IN CONNECTION WITH A QUESTION WHICH IS
NOT SPECIFICALLY IDENTIFIED WITH A POLITICAL PARTY, SUCH AS A
CONSTITUTIONAL AMENDMENT, REFERENDUM, APPROVAL OF A MUNICIPAL ORDINANCE
OR ANY OTHER QUESTION OR ISSUE OF A SIMILAR CHARACTER; 

"(12) SERVE AS AN ELECTION JUDGE OR CLERK, OR IN A SIMILAR POSITION
TO PERFORM NONPARTISAN DUTIES AS PRESCRIBED BY STATE OR LOCAL LAW; AND 

"(13) OTHERWISE PARTICIPATE FULLY IN PUBLIC AFFAIRS, EXCEPT AS
PROHIBITED BY LAW, IN A MANNER WHICH DOES NOT MATERIALLY COMPROMISE HIS
EFFICIENCY OR INTEGRITY AS AN EMPLOYEE OR THE NEUTRALITY, EFFICIENCY,
OR INTEGRITY OF HIS AGENCY. 

"(B) PARAGRAPH (A) OF THIS SECTION DOES NOT AUTHORIZE AN EMPLOYEE TO
ENGAGE IN POLITICAL ACTIVITY IN VIOLATION OF LAW, WHILE ON DUTY, OR
WHILE IN A UNIFORM THAT IDENTIFIES HIM AS AN EMPLOYEE.  THE HEAD OF AN
AGENCY MAY PROHIBIT OR LIMIT THE PARTICIPATION OF AN EMPLOYEE OR CLASS
OF EMPLOYEES OF HIS AGENCY IN AN ACTIVITY PERMITTED BY PARAGRAPH (A) OF
THIS SECTION, IF PARTICIPATION IN THE ACTIVITY WOULD INTERFERE WITH THE
EFFICIENT PERFORMANCE OF OFFICIAL DUTIES, OR CREATE A CONFLICT OR
APPARENT CONFLICT OF INTERESTS. 

        "PROHIBITED ACTIVITIES " ^ 733.121 USE OF OFFICIAL
AUTHORITY; PROHIBITION. 

"AN EMPLOYEE MAY NOT USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE
PURPOSE OF INTERFERING WITH OR AFFECTING THE RESULT OF AN ELECTION.  "
^ 733.122 POLITICAL MANAGEMENT AND POLITICAL CAMPAIGNING;
PROHIBITIONS. 

"(A) AN EMPLOYEE MAY NOT TAKE AN ACTIVE PART IN POLITICAL MANAGEMENT
OR IN A POLITICAL CAMPAIGN, EXCEPT AS PERMITTED BY THIS SUBPART. 

"(B) ACTIVITIES PROHIBITED BY PARAGRAPH (A) OF THIS SECTION INCLUDE
BUT ARE NOT LIMITED TO-- 

"(1) SERVING AS AN OFFICER OF A POLITICAL PARTY, A MEMBER OF A
NATIONAL, STATE, OR LOCAL COMMITTEE OF A POLITICAL PARTY, AN OFFICER OR
MEMBER OF A COMMITTEE OF A PARTISAN POLITICAL CLUB, OR BEING A
CANDIDATE FOR ANY OF THESE POSITIONS; 

"(2) ORGANIZING OR REORGANIZING A POLITICAL PARTY ORGANIZATION OR
POLITICAL CLUB; 

"(3) DIRECTLY OR INDIRECTLY SOLICITING, RECEIVING, COLLECTING,
HANDLING, DISBURSING, OR ACCOUNTING FOR ASSESSMENTS, CONTRIBUTIONS, OR
OTHER FUNDS FOR A PARTISAN POLITICAL PURPOSE; 

"(4) ORGANIZING, SELLING TICKETS TO, PROMOTING, OR ACTIVELY
PARTICIPATING IN A FUND-RAISING ACTIVITY OF A PARTISAN CANDIDATE,
POLITICAL PARTY, OR POLITICAL CLUB; 

"(5) TAKING AN ACTIVE PART IN MANAGING THE POLITICAL CAMPAIGN OF A
PARTISAN CANDIDATE FOR PUBLIC OFFICE OR POLITICAL PARTY OFFICE; 

"(6) BECOMING A PARTISAN CANDIDATE FOR, OR CAMPAIGNING FOR, AN
ELECTIVE PUBLIC OFFICE; 

"(7) SOLICITING VOTES IN SUPPORT OF OR IN OPPOSITION TO A PARTISAN
CANDIDATE FOR PUBLIC OFFICE OR POLITICAL PARTY OFFICE; 

"(8) ACTING AS RECORDED, WATCHER, CHALLENGER, OR SIMILAR OFFICER AT
THE POLLS ON BEHALF OF A POLITICAL PARTY OR PARTISAN CANDIDATE; 

"(9) DRIVING VOTERS TO THE POLLS ON BEHALF OF A POLITICAL PARTY OR
PARTISAN CANDIDATE; 

"(10) ENDORSING OR OPPOSING A PARTISAN CANDIDATE FOR PUBLIC OFFICE
OR POLITICAL PARTY OFFICE IN A POLITICAL ADVERTISEMENT, A BROADCAST,
CAMPAIGN LITERATURE, OR SIMILAR MATERIAL; 

"(11) SERVING AS A DELEGATE, ALTERNATE, OR PROXY TO A POLITICAL
PARTY CONVENTION; 

"(12) ADDRESSING A CONVENTION, CAUCUS, RALLY, OR SIMILAR GATHERING
OF A POLITICAL PARTY IN SUPPORT OF OR IN OPPOSITION TO APARTISAN
CANDIDATE FOR PUBLIC OFFICE OR POLITICAL PARTY OFFICE; AND 

"(13) INITIATING OR CIRCULATING A PARTISAN NOMINATING PETITION." 

/22/  ACCORDING TO AN AFFIDAVIT FILED IN DISTRICT COURT BY THE
GENERAL COUNSEL FOR THE CIVIL SERVICE COMMISSION, APP. 54:  "THE
INFORMATION UNIT (IN THE OFFICE OF GENERAL COUNSEL) ANSWERS INQUIRIES,
FROM WHATEVER SOURCE, CONCERNING THE APPLICATION OF THE HATCH ACT,
RULE, AND REGULATIONS." 

        APPENDIX TO OPINION OF THE COURT 

THAT PORTION OF THE UNITED STATES CIVIL SERVICE COMMISSION FORM
1236, POLITICAL ACTIVITY AND ASSESSMENTS, SEPTEMBER 1939, AS INSERTED
INTO THE CONGRESSIONAL RECORD BY SENATOR HATCH, 86 CONG., REC. 2938 -
2940, PROVIDED:

III.  PARTICULAR TYPES OF PROHIBITED ACTIVITIES 

11.  AS HAS BEEN POINTED OUT, IT IS IMPOSSIBLE TO MAKE A COMPLETE
ENUMERATION OF ALL THE PARTICULAR TYPES OF POLITICAL ACTIVITIES IN
WHICH GOVERNMENT EMPLOYEES MAY NOT ENGAGE.  THE GENERAL SCOPE OF THE
POLITICAL-ACTIVITY RULE HAS BEEN DEFINED IN SECTION 2 ABOVE.  IN THE
FOLLOWING SECTIONS SOME OF THE TYPES OF POLITICAL ACTIVITY WHICH OCCUR
MORE FREQUENTLY ARE DISCUSSED IN DETAIL. 

12.  ACTIVITY BY INDIRECTION:  ANY POLITICAL ACTIVITY WHICH IS
PROHIBITED IN THE CASE OF AN EMPLOYEE ACTING INDEPENDENTLY IS ALSO
PROHIBITED IN THE CASE OF AN EMPLOYEE ACTING IN OPEN OR SECRET
COOPERATION WITH OTHERS.  WHATEVER THE EMPLOYEE MAY NOT DO DIRECTLY OR
PERSONALLY, HE MAY NOT DO INDIRECTLY OR THROUGH AN AGENT, OFFICER, OR
EMPLOYEE CHOSEN BY HIM OR SUBJECT TO HIS CONTROL.  EMPLOYEES ARE
THEREFORE ACCOUNTABLE FOR POLITICAL ACTIVITY BY PERSONS OTHER THAN
THEMSELVES, INCLUDING WIVES OR HUSBANDS, IF, IN FACT, THE EMPLOYEES ARE
THUS ACCOMPLISHING BY COLLUSION AND INDIRECTION WHAT THEY MAY NOT
LAWFULLY DO DIRECTLY AND OPENLY.  POLITICAL ACTIVITY IN FACT,
REGARDLESS OF THE METHODS OR MEANS USED BY THE EMPLOYEE, CONSTITUTES
THE VIOLATION. 

[[HC582'(ORIGINAL DOCUMENT PAGE 582)' 

THIS DOES NOT MEAN THAT AN EMPLOYEE'S HUSBAND OR WIFE MAY NOT ENGAGE
IN POLITICS INDEPENDENTLY, UPON HIS OR HER OWN INITIATIVE, AND IN HIS
OR HER OWN BEHALF.  CASES HAVE ARISEN, HOWEVER, IN WHICH THE FACTS
SHOWED THAT THE REAL PURPOSE OF A WIFE'S ACTIVITY WAS TO ACCOMPLISH A
POLITICAL ACT PROHIBITED TO HER HUSBAND, THE ATTEMPT BEING MADE FOR HER
HUSBAND'S BENEFIT AND AT HIS INSTIGATION OR EVEN UPON HIS COERCION. 
THIS MAY BE TRUE OF INDIVIDUALS OR IT MAY OCCUR AMONG GROUPS OF
EMPLOYEES' WIVES, ASSOCIATED FOR THE PURPOSE OF SECURING FOR THEIR
HUSBANDS WHAT THEIR HUSBANDS MAY NOT SECURE FOR THEMSELVES.  IN SUCH
SITUATIONS IT IS OBVIOUS THAT THE PROHIBITIONS AGAINST POLITICAL
ACTIVITY ARE BEING INDIRECTLY VIOLATED.  THE COLLUSION OR COERCION
RENDERS THE WIFE'S ACTIVITY IMPUTABLE TO THE HUSBAND, HE BEING GUILTY
OF THE SAME INFRACTION AS IF HE WERE OPENLY A PARTICIPANT. 

13.  CONVENTIONS: CANDIDACY FOR OR SERVICE AS DELEGATE, ALTERNATE,
OR PROXY IN ANY POLITICAL CONVENTION OR SERVICE AS AN OFFICER OR
EMPLOYEE THEREOF IS PROHIBITED.  ATTENDANCE MERELY AS A SPECTATOR IS
PERMISSIBLE, BUT THE EMPLOYEE SO ATTENDING MUST NOT TAKE ANY PART IN
THE CONVENTION OR IN THE DELIBERATIONS OR PROCEEDINGS OF ANY OF ITS
COMMITTEES, AND MUST REFRAIN FROM ANY PUBLIC DISPLAY OF PARTISANSHIP OR
OBTRUSIVE DEMONSTRATION OR INTERFERENCE.  (SEE SECS. 4 AND 19.) 

14.  PRIMARIES--CAUCUSES:  AN EMPLOYEES MAY ATTEND A PRIMARY
MEETING, MASS CONVENTION, BEAT CONVENTION, CAUCUS, AND THE LIKE, AND
MAY CAST HIS VOTE ON ANY QUESTION PRESENTED, BUT HE MAY NOT PASS THIS
POINT IN PARTICIPATING IN ITS DELIBERATIONS.  HE MAY NOT ACT AS AN
OFFICER OF THE MEETING, CONVENTION, OR CAUCUS, MAY NOT ADDRESS IT, MAKE
MOTIONS, PREPARE OR ASSIST IN PREPARING RESOLUTIONS, ASSUME TO
REPRESENT OTHERS, OR TAKE ANY PROMINENT PART THEREIN. 

15.  COMMITTEES:  SERVICE ON OR FOR ANY POLITICAL COMMITTEE OR
SIMILAR ORGANIZATION IS PROHIBITED. 

[[HC583'(ORIGINAL DOCUMENT PAGE 583)'  AN EMPLOYEE MAY ATTEND AS A
SPECTATOR ANY MEETING OF A POLITICAL COMMITTEE TO WHICH THE GENERAL
PUBLIC IS ADMITTED, BUT MUST REFRAIN FROM ACTIVITY AS INDICATED IN THE
PRECEDING PARAGRAPHS. 

WHETHER A COMMITTEE HAS AN ULTIMATE POLITICAL PURPOSE DETERMINES
WHETHER A CLASSIFIED EMPLOYEE MAY PROPERLY SERVE AS A MEMBER. 
ASSIGNMENT MAY BE TO DUTIES WHICH, IF CONSIDERED ALONE, WOULD SEEM FAR
REMOVED FROM ACTIVE POLITICS, BUT WHICH, WHEN CONSIDERED AS A PART OF
THE WHOLE PURPOSE, ASSUME AN ACTIVE POLITICAL CHARACTER.  NO ATTEMPT
CAN BE MADE TO DIFFERENTIATE BETWEEN WORKERS ON OR UNDER POLITICAL
COMMITTEES WITH RESPECT TO THE DEGREE TO WHICH THEY ARE POLITICALLY
ACTIVE.     16.  CLUBS AND ORGANIZATIONS:  EMPLOYEES MAY BE MEMBERS OF
POLITICAL CLUBS, BUT IT IS IMPROPER FOR THEM TO BE ACTIVE IN ORGANIZING
SUCH A CLUB, TO BE OFFICERS OF THE CLUB, OR MEMBERS OR OFFICERS OF ANY
OF ITS COMMITTEES OR TO ACT AS SUCH, OR TO ADDRESS A POLITICAL CLUB. 
SERVICE AS A DELEGATE FROM SUCH A CLUB TO A LEAGUE OF POLITICAL CLUBS
IS SERVICE AS AN OFFICER OR REPRESENTATIVE OF A POLITICAL CLUB AND IS
PROHIBITED, AS IS SERVICE AS A DELEGATE OR REPRESENTATIVE OF SUCH A
CLUB TO OR IN ANY OTHER ORGANIZATION.  IN OTHER WORDS, AN EMPLOYEE MAY
BECOME A MEMBER OF A POLITICAL CLUB, BUT MAY NOT TAKE AN ACTIVE PART IN
ITS MANAGEMENT OR AFFAIRS, AND MAY NOT REPRESENT OTHER MEMBERS OR
ATTEMPT TO INFLUENCE THEM BY HIS ACTIONS OR UTTERANCES.  (SEE SECS. 4
AND 19.)     SECTION 6 OF THE ACT OF AUGUST 24, 1912 (37 STAT. 555),
PROVIDES IN PART-- 

"THAT MEMBERSHIP IN ANY SOCIETY, ASSOCIATION, CLUB, OR OTHER FORM OF
ORGANIZATION OF POSTAL EMPLOYEES NOT AFFILIATED WITH ANY OUTSIDE
ORGANIZATION IMPOSING AN OBLIGATION OR DUTY UPON THEM TO ENGAGE IN ANY
STRIKE, OR PROPOSING TO ASSIST THEM IN ANY STRIKE, AGAINST THE UNITED
STATES, HAVING FOR ITS OBJECTS, AMONG OTHER THINGS, IMPROVEMENTS IN THE
CONDITION OF LABOR OR ITS MEMBERS, INCLUDING HOURS OF LABOR AND
COMPENSATION THEREFOR AND LEAVE OF ABSENCE, BY ANY PERSON OR GROUPS OF
PERSONS IN SAID POSTAL SERVICE, OR THE PRESENTING BY ANY SUCH PERSON OR
GROUPS OF PERSONS OF ANY GRIEVANCE OR GRIEVANCES TO THE CONGRESS OR ANY
MEMBER THEREOF, SHALL NOT CONSTITUTE OR BE CAUSE FOR REDUCTION IN RANK
OR COMPENSATION OR REMOVAL OF SUCH PERSON OR GROUPS OF PERSONS FROM
SAID SERVICE." 

[[HC584'(ORIGINAL DOCUMENT PAGE 584)' 

CONG.), PROVIDES AS FOLLOWS: 

"(1) IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN ANY CAPACITY BY
ANY AGENCY OF THE FEDERAL GOVERNMENT, WHOSE COMPENSATION, OR ANY PART
THEREOF, IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY ANY ACT OF
CONGRESS, TO HAVE MEMBERSHIP IN ANY POLITICAL PARTY OR ORGANIZATION
WHICH ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT
IN THE UNITED STATES. 

"(2) ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE
IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND
THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS FOR
SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH
PERSON." 

17.  CONTRIBUTIONS:  AN EMPLOYEE MAY MAKE POLITICAL CONTRIBUTIONS TO
ANY COMMITTEE, ORGANIZATION, OR PERSON NOT EMPLOYED BY THE UNITED
STATES, BUT MAY NOT SOLICIT, COLLECT, RECEIVE, OR OTHERWISE HANDLE OR
DISBURSE THE CONTRIBUTIONS.  (SEE PROVISIONS OF THE CRIMINAL CODE,
DISCUSSED IN SECS. 36 TO 50.) 

18.  MEETINGS:  SERVICE IN PREPARING FOR, ORGANIZING, OR CONDUCTING
A POLITICAL MEETING OR RALLY, ADDRESSING SUCH A MEETING, OR TAKING ANY
PART THEREIN, EXCEPT AS A SPECTATOR, IS PROHIBITED. 

19.  EXPRESSION OF OPINIONS:  ALTHOUGH SECTION 9(A) OF THE ACT OF
AUGUST 2, 1939 RESERVES TO FEDERAL OFFICERS AND EMPLOYEES THE RIGHT TO
EXPRESS THEIR OPINIONS ON ALL POLITICAL SUBJECTS, OFFICERS AND
EMPLOYEES IN THE COMPETITIVE CLASSIFIED SERVICE ARE SUBJECT ALSO TO
CONFINE THEMSELVES TO A PRIVATE EXPRESSION OF OPINION. 

[[HC585'(ORIGINAL DOCUMENT PAGE 585)'  NON-CLASSIFIED AND EXCEPTED
EMPLOYEES MAY NOT INDULGE IN SUCH PUBLIC EXPRESSION OF OPINION AS
CONSTITUTES TAKING PART IN AN ORGANIZED POLITICAL CAMPAIGN.  (SEE
FOREGOING SECS. 1 AND 4.) 

20.  ACTIVITY AT THE POLLS AND FOR CANDIDATES:  AN EMPLOYEE HAS THE
RIGHT TO VOTE AS HE PLEASES, AND TO EXERCISE THIS RIGHT FREE FROM
INTERFERENCE, SOLICITATION, OR DICTATION BY ANY FELLOW EMPLOYEE OR
SUPERIOR OFFICER OR ANY OTHER PERSON.  IT IS A VIOLATION OF THE FEDERAL
CORRUPT PRACTICES ACT TO PAY OR OFFER TO PAY ANY PERSON FOR VOTING OR
REFRAINING FROM VOTING, OR FOR VOTING FOR OR AGAINST ANY CANDIDATE FOR
SENATOR OR REPRESENTATIVE IN, OR DELEGATE OR RESIDENT COMMISSIONER TO,
CONGRESS.  IT IS ALSO A VIOLATION OF THE LAW TO SOLICIT, RECEIVE, OR
ACCEPT PAYMENT FOR ONE'S VOTE OR FOR WITHHOLDING ONE'S VOTE.  (SEE U.S.
CODE, TITLE 2, SEC. 250.) 

UNDER THE ACT OF AUGUST 2, 1939, IT IS A CRIMINAL OFFENSE FOR ANY
PERSON TO INTIMIDATE, THREATEN, OR COERCE ANY OTHER PERSON FOR THE
PURPOSE OF INTERFERING WITH THE RIGHT OF SUCH OTHER PERSON TO VOTE AS
HE MAY CHOOSE IN ANY ELECTION OF A NATIONAL CHARACTER.  IT IS ALSO A
CRIMINAL OFFENSE TO PROMISE ANY EMPLOYMENT, POSITION, WORK, OR
COMPENSATION, OR OTHER BENEFIT MADE POSSIBLE BY AN ACT OF CONGRESS, AS
A CONSIDERATION, FAVOR, OR REWARD FOR POLITICAL ACTIVITY OR FOR THE
SUPPORT OF OR OPPOSITION TO ANY POLITICAL CANDIDATE OR PARTY.  (SEE
SECS. 48 AND 50 HEREIN.) 

IT IS THE DUTY OF AN EMPLOYEE TO AVOID ANY OFFENSIVE ACTIVITY AT
PRIMARY AND REGULAR ELECTIONS. 

[[HC586'(ORIGINAL DOCUMENT PAGE 586)'  HE MUST REFRAIN FROM
SOLICITING VOTES, ASSISTING VOTERS TO MARK BALLOTS, HELPING TO GET OUT
THE VOTERS ON REGISTRATION AND ELECTION DAYS, ACTING AS THE ACCREDITED
CHECKER, WATCHER, OR CHALLENGER OF ANY PARTY OR FACTION, ASSISTING IN
COUNTING THE VOTE, OR ENGAGING IN ANY OTHER ACTIVITY AT THE POLLS
EXCEPT THE MARKING AND DEPOSITING OF HIS OWN BALLOT.  RENDERING
SERVICE, SUCH AS TRANSPORTING VOTERS TO AND FROM THE POLLS AND
CANDIDATES ON CANVASSING TOURS, WHETHER FOR PAY OR GRATUITOUSLY, IS
HELD TO BE WITHIN THE SCOPE OF POLITICAL ACTIVITIES PROHIBITED BY THE
RULE, EVEN IF SUCH SERVICE IS PERFORMED WITHOUT REGARD TO POLITICAL
PARTY. 

21.  ELECTION OFFICERS: SERVICE AS JUDGE OF ELECTION, INSPECTOR,
CHECKER, TELLER, OR AS ELECTION OFFICER OF ANY KIND IS PROHIBITED. 

22.  NEWSPAPERS--PUBLICATION OF LETTERS OR ARTICLES:  A CLASSIFIED
EMPLOYEE MAY NOT PUBLISH OR BE CONNECTED EDITORIALLY OR MANAGERIALLY
WITH ANY POLITICAL NEWSPAPER, AND MAY NOT WRITE FOR PUBLICATION OR
PUBLISH ANY LETTER OR ARTICLE, SIGNED OR UNSIGNED, IN FAVOR OF OR
AGAINST ANY POLITICAL PARTY, CANDIDATE, FACTION, OR MEASURE.  AN
EMPLOYEE WHO WRITES SUCH A LETTER OR ARTICLE IS RESPONSIBLE FOR ANY USE
THAT MAY BE MADE OF IT WHETHER OR NOT HE GIVES CONSENT TO SUCH USE. 
(SEE SECS. 4 AND 19). 

23.  LIQUOR QUESTION:  ACTIVITY IN CAMPAIGNS CONCERNING THE
REGULATION OR SUPPRESSION OF THE LIQUOR TRAFFIC IS PROHIBITED.  AN
EMPLOYEE MAY BE A MEMBER BUT NOT AN OFFICER OF A CLUB, LEAGUE, OR OTHER
ORGANIZATION WHICH TAKES PART IN SUCH A CAMPAIGN.  THE DISSEMINATION OF
TEMPERANCE PROPAGANDA IS PERMISSIBLE, BUT ANY ENDEAVOR FOR OR AGAINST
THE REGULATION, CONTROL, OR SUPPRESSION OF THE LIQUOR TRAFFIC THROUGH
POLITICAL AGENCIES IS PROHIBITED. 

24.  BETTING OR WAGERING ON ELECTIONS:  BETTING OR WAGERING UPON THE
RESULTS OF PRIMARY AND GENERAL ELECTIONS IS PENALIZED BY THE LAWS OF
MOST STATES AND IS IMPROPER POLITICAL ACTIVITY. 

[[HC587'(ORIGINAL DOCUMENT PAGE 587)' 

25.  ACTIVITY IN CIVIC ORGANIZATIONS AND CITIZENS'  ASSOCIATIONS:
ACTIVITY IN ORGANIZATIONS HAVING FOR THEIR PRIMARY OBJECT THE PROMOTION
OF GOOD GOVERNMENT OR THE LOCAL CIVIC WELFARE IS NOT PROHIBITED BY THE
ACT OF AUGUST 2, 1939, OR CIVIL-SERVICE RULE I, PROVIDED SUCH
ACTIVITIES HAVE NO CONNECTION WITH THE CAMPAIGNS OF PARTICULAR
CANDIDATES OR PARTIES. 

26.  PARADES:  AN EMPLOYEE MAY NOT MARCH IN A POLITICAL PARADE,
ORGANIZE, OR BE AN OFFICER OR LEADER OF SUCH A PARADE. 

A GOVERNMENT EMPLOYEE MAY NOT TAKE PART IN THE ACTIVITIES OF A
MUSICAL ORGANIZATION IN ANY PARADE OR OTHER ACTIVITY OF A POLITICAL
PARTY. 

27.  SIGNING PETITIONS:  THE FIRST AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES PROVIDES THAT "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."  SECTION 6 OF THE ACT OF AUGUST 24, 1912 (37
STAT. 555), PROVIDES THAT "THE RIGHT OF PERSONS EMPLOYED IN THE CIVIL
SERVICE OF THE UNITED STATES, EITHER INDIVIDUALLY OR COLLECTIVELY, TO
PETITION CONGRESS, OR ANY MEMBER THEREOF, OR TO FURNISH INFORMATION TO
EITHER HOUSE OF CONGRESS, OR TO ANY COMMITTEE OR MEMBER THEREOF, SHALL
NOT BE DENIED OR INTERFERED WITH." 

THE RIGHT GUARANTEED BY THE CONSTITUTION AND THE STATUTE EXTENDS
ONLY TO PETITIONS ADDRESSED TO THE GOVERNMENT, OR TO CONGRESS OR
MEMBERS THEREOF.  IT DOES NOT EXTEND TO PETITIONS ADDRESSED TO STATE,
COUNTY, OR MUNICIPAL GOVERNMENTS, OR TO OTHER POLITICAL UNITS.  A
CLASSIFIED EMPLOYEE IS PERMITTED TO SIGN PETITIONS OF THE LATTER CLASS
AS AN INDIVIDUALL, WITHOUT REFERENCE TO HIS CONNECTION WITH THE
GOVERNMENT, BUT HE MAY NOT INITIATE THEM, CIRCULATE THEM, OR CANVASS
FOR THE SIGNATURES OF OTHERS. 

[[HC588'(ORIGINAL DOCUMENT PAGE 588)' 

28.  APPLYING FOR PRESIDENTIAL POSITIONS NOT IN THE CLASSIFIED
SERVICE:  /1/  WHEN A CLASSIFIED EMPLOYEE SEEKS PROMOTION BY
APPOINTMENT OR TRANSFER TO A PRESIDENTIAL OFFICE NOT IN THE CLASSIFIED
SERVICE THERE IS NO OBJECTION TO HIS BECOMING A CANDIDATE FOR SUCH AN
OFFICE, PROVIDED THE CONSENT OF HIS DEPARTMENT IS OBTAINED, AND
PROVIDED HE DOES NOT VIOLATE SECTION 1 OF RULE I, PROHIBITING THE USE
OF HIS OFFICIAL AUTHORITY OR INFLUENCE IN POLITICAL MATTERS, AND
PROVIDED FURTHER THAT HE DOES NOT NEGLECT HIS DUTY AND AVOIDS ANY
ACTION THAT WOULD CAUSE PUBLIC SCANDAL OR SEMBLANCE OF COERCION OF HIS
FELLOW EMPLOYEES OR OF THOSE OVER WHOM HE DESIRES TO BE PLACED IN THE
POSITION HE SEEKS. 

A CLASSIFIED EMPLOYEE MAY CIRCULATE A PETITION OR SEEK ENDORSEMENTS
FOR HIS OWN APPOINTMENT TO A PRESIDENTIAL POSITION, SUBJECT TO THE
QUALIFICATIONS ABOVE STATED, AND HE MAY, AS AN INDIVIDUAL, SIGN A
PETITION OR RECOMMEND ANOTHER PERSON FOR SUCH AN APPOINTMENT; BUT HE
MAY NOT CIRCULATE A PETITION OR SOLICIT ENDORSEMENTS, RECOMMENDATIONS,
OR SUPPORT FOR THE APPOINTMENT OF ANOTHER PERSON TO SUCH A POSITION,
WHETHER SUCH OTHER PERSON IS A FELLOW EMPLOYEE OR ONE NOT AT THE TIME
IN THE GOVERNMENT SERVICE. 

WHEN AN UNOFFICIAL PRIMARY OR ELECTION IS HELD FOR THE PURPOSE OF
DETERMINING THE POPULAR CHOICE FOR THE PRESIDENTIAL OFFICE, A
CLASSIFIED EMPLOYEE MAY PERMIT HIS NAME TO APPEAR UPON THE TICKET, BUT
HE MAY NOT SOLICIT VOTES IN HIS BEHALF AT SUCH A PRIMARY OR ELECTION,
OR IN ANY MANNER VIOLATE SECTION 1 OF RULE I. HE MAY VOTE AND EXPRESS
PRIVATELY HIS OPINIONS, BUT MAY NOT SOLICIT VOTES OR PUBLICLY ADVOCATE
THE CANDIDACY OR ELECTION OF HIMSELF OR ANY OTHER PERSON. 

[[HC589'(ORIGINAL DOCUMENT PAGE 589)'  ALTHOUGH IT IS PERMISSIBLE
FOR A CLASSIFIED EMPLOYEE, AS AN INDIVIDUAL, TO SIGN A PETITION OR
RECOMMEND ANOTHER PERSON FOR APPOINTMENT TO A NONCLASSIFIED POSITION,
HE IS NOT PERMITTED TO SIGN SUCH A PETITION AS A GOVERNMENT EMPLOYEE OR
IN ANY OTHER WAY TO USE HIS OFFICIAL AUTHORITY OR INFLUENCE TO ADVANCE
THE CANDIDACY OF ANY PERSON FOR ELECTION OR APPOINTMENT TO ANY OFFICE. 
CLASSIFIED EMPLOYEES ARE PERMITTED TO EXERCISE THE RIGHT AS INDIVIDUALS
TO SIGN A PETITION FAVORING A CANDIDATE FOR ANY OFFICE, BUT THEY MAY
NOT DO SO AS GOVERNMENT EMPLOYEES OR AS A GROUP OR ASSOCIATION OF
GOVERNMENT EMPLOYEES. 

29.  OTHER FORMS OF POLITICAL ACTIVITY:  AMONG OTHER FORMS OF
POLITICAL ACTIVITY WHICH ARE PROHIBITED ARE THE DISTRIBUTION OF
CAMPAIGN LITERATURE, BADGES, OR BUTTONS, AND ASSUMING GENERAL POLITICAL
LEADERSHIP OR BECOMING PROMINENTLY IDENTIFIED WITH ANY POLITICAL
MOVEMENT, PARTY, OR FACTION, OR WITH THE SUCCESS OR FAILURE OF ANY
CANDIDATE FOR ELECTION TO PUBLIC OFFICE. 

        IV.  CANDIDACY FOR OR HOLDING LOCAL OFFICE--CLASSIFIED AND

           NON-CLASSIFIED EMPLOYEES 

30.  CANDIDACY FOR LOCAL OFFICE:  CANDIDACY FOR A NOMINATION OR FOR
ELECTION TO ANY NATIONAL, STATE, COUNTY, OR MUNICIPAL OFFICE IS NOT
PERMISSIBLE.  THE PROHIBITION AGAINST POLITICAL ACTIVITY EXTENDS NOT
MERELY TO FORM ANNOUNCEMENT OF CANDIDACY BUT ALSO TO THE PRELIMINARIES
LEADING TO SUCH ANNOUNCEMENT AND TO CANVASSING OR SOLICITING SUPPORT OR
DOING OR PERMITTING TO BE DONE ANY ACT IN FURTHERANCE OF CANDIDACY. 
THE FACT THAT CANDIDACY, IS MERELY PASSIVE IS IMMATERIAL; IF AN
EMPLOYEE ACQUIESCES IN THE EFFORTS OF FRIENDS IN FURTHERANCE OF SUCH
CANDIDACY SUCH ACQUIESCEICE CONSTITUTES AN INFRACTION OF THE
PROHIBITIONS AGAINST POLITICAL ACTIVITY. 

[[HC590'(ORIGINAL DOCUMENT PAGE 590)' 

31.  FEDERAL EMPLOYEES HOLDING LOCAL OFFICE:  /2/  PERSONS HOLDING
FEDERAL CIVIL OFFICE BY APPOINTMENT, WHETHER IN THE COMPETITIVE
CLASSIFIED SERVICE OR NOT, ARE PROHIBITED FROM ACCEPTING OR HOLDING ANY
OFFICE UNDER A STATE, TERRITORIAL, OR MUNICIPAL GOVERNMENT BY AN
EXECUTIVE ORDER OF JANUARY 17, 1873, WHICH IS AS FOLLOWS: 

"WHEREAS IT HAS BEEN BROUGHT TO THE NOTICE OF THE PRESIDENT OF THE
UNITED STATES THAT MANY PERSONS HOLDING CIVIL OFFICE BY APPOINTMENT
FROM HIM OR OTHERWISE UNDER THE CONSTITUTION AND LAWS OF THE UNITED
STATES WHILE HOLDING SUCH FEDERAL POSITIONS ACCEPT OFFICES UNDER THE
AUTHORITY OF THE STATES AND TERRITORIES IN WHICH THEY RESIDE, OR OF
MUNICIPAL CORPORATIONS, UNDER THE CHARTERS AND ORDINANCES OF SUCH
CORPORATIONS, THEREBY ASSUMING THE DUTIES OF THE STATE, TERRITORIAL, OR
MUNICIPAL OFFICE AT THE SAME TIME THAT THEY ARE CHARGED WITH THE DUTIES
OF THE CIVIL OFFICE HELD UNDER FEDERAL AUTHORITY: 

"AND WHEREAS IT IS BELIEVED THAT, WITH BUT FEW EXCEPTIONS, THE
HOLDING OF TWO SUCH OFFICES BY THE SAME PERSON IS INCOMPATIBLE WITH A
DUE AND FAITHFUL DISCHARGE OF THE DUTIES OF EITHER OFFICE; THAT IT
FREQUENTLY GIVES RISE TO GREAT INCONVENIENCE, AND OFTEN RESULTS IN
DETRIMENT TO THE PUBLIC SERVICE; AND, MOREOVER, IS NOT IN HARMONY WITH
THE GENIUS OF THE GOVERNMENT: 

"IN VIEW OF THE PREMISES, THEREFORE, THE PRESIDENT HAS DEEMED IT
PROPER THUS AND HEREBY TO GIVE PUBLIC NOTICE THAT FROM AND AFTER THE
4TH DAY OF MARCH A.D. 1873 (EXCEPT AS HEREIN SPECIFIED), PERSONS
HOLDING ANY FEDERAL CIVIL OFFICE BY APPOINTMENT UNDER THE CONSTITUTION
AND LAWS OF THE UNITED STATES WILL BE EXPECTED, WHILE HOLDING SUCH
OFFICE, NOT TO ACCEPT OR HOLD ANY OFFICE UNDER ANY STATE OR TERRITORIAL
GOVERNMENT, OR UNDER THE CHARTER OR ORDINANCES OF ANY MUNICIPAL
CORPORATION; AND, FURTHER, THAT THE ACCEPTANCE OR CONTINUED HOLDING OF
ANY SUCH STATE, TERRITORIAL, OR MUNICIPAL OFFICE, WHETHER ELECTIVE OR
BY APPOINTMENT, BY ANY PERSON HOLDING CIVIL OFFICE AS AFORESAID UNDER
THE GOVERNMENT OF THE UNITED STATES, OTHER THAN JUDICIAL OFFICES UNDER
THE CONSTITUTION OF THE UNITED STATES, WILL BE DEEMED A VACATION OF THE
FEDERAL OFFICE HELD BY SUCH PERSON, AND WILL BE TAKEN TO BE AND WILL BE
TREATED AS A RESIGNATION BY SUCH FEDERAL OFFICER OF HIS COMMISSION OR
APPOINTMENT IN THE SERVICE OF THE UNITED STATES.     [[HC591'(ORIGINAL
DOCUMENT PAGE 591)'     "THE OFFICES OF JUSTICES OF THE PEACE, OF
NOTARIES PUBLIC, AND OF COMMISSIONERS TO TAKE THE ACKNOWLEDGMENT OF
DEEDS, OF BAIL, OR TO ADMINISTER OATHS, SHALL NOT BE DEEMED WITHIN THE
PURVIEW OF THIS ORDER AND ARE EXCEPTED FROM ITS OPERATION, AND MAY BE
HELD BY FEDERAL OFFICERS. 

"THE APPOINTMENT OF DEPUTY MARSHALS OF THE UNITED STATES MAY BE
CONFERRED UPON SHERIFFS OR DEPUTY SHERIFFS.  ANY DEPUTY POSTMASTERS,
THE EMOLUMENTS OF WHOSE OFFICE DO NOT EXCEED $600 PER ANNUM, ARE ALSO
EXCEPTED FROM THE OPERATION OF THIS ORDER AND MAY ACCEPT AND HOLD
APPOINTMENTS UNDER STATE, TERRITORIAL, OR MUNICIPAL AUTHORITY, PROVIDED
THE SAME BE FOUND NOT TO INTERFERE WITH THE DISCHARGE OF THEIR DUTIES
AS POSTMASTERS.  /3/  HEADS OF DEPARTMENTS AND OTHER OFFICERS OF THE
GOVERNMENT WHO HAVE THE APPOINTMENT OF SUBORDINATE OFFICERS ARE
REQUIRED TO TAKE NOTICE OF THIS ORDER, AND TO SEE TO THE ENFORCEMENT OF
ITS PROVISIONS AND TERMS WITHIN THE SPHERE OF THEIR RESPECTIVE
DEPARTMENTS OR OFFICES AND AS RELATES TO THE SEVERAL PERSONS HOLDING
APPOINTMENTS UNDER THEM, RESPECTIVELY."  /4/ 

32.  INTERPRETATION OF THE ORDER OF JANUARY 17, 1873:  AN EXECUTIVE
ORDER OF JANUARY 28, 1873, AS AMENDED BY EXECUTIVE ORDER OF AUGUST 27,
1933, IS AS FOLLOWS: 

"INQUIRIES HAVING BEEN MADE FROM VARIOUS QUARTERS AS TO THE
APPLICATION OF THE EXECUTIVE ORDER ISSUED ON THE 17TH OF JANUARY
RELATING TO THE HOLDING OF STATE OR MUNICIPAL OFFICES BY PERSONS
HOLDING CIVIL OFFICES UNDER THE FEDERAL GOVERNMENT, THE PRESIDENT
DIRECTS THE FOLLOWING REPLY TO BE MADE: 

[[HC592'(ORIGINAL DOCUMENT PAGE 592)' 

"IT HAS BEEN ASKED WHETHER THE ORDER PROHIBITS A FEDERAL OFFICER
FROM HOLDING ALSO THE OFFICE OF AN ALDERMAN OR OF A COMMON COUNCILMAN
IN A CITY, OR OF A TOWN COUNCILMAN OF A TOWN OR VILLAGE, OR OF
APPOINTMENTS UNDER CITY, TOWN, OR VILLAGE GOVERNMENTS.  BY SOME IT HAS
BEEN SUGGESTED THAT THERE MAY BE DISTINCTION MADE IN CASE THE OFFICE BE
WITH OR WITHOUT SALARY OR COMPENSATION.  THE CITY OR TOWN OFFICES OF
THE DESCRIPTION REFERRED TO, BY WHATEVER NAMES THEY MAY BE LOCALLY
KNOWN, WHETHER HELD BY ELECTION OR BY APPOINTMENT, AND WHETHER WITH OR
WITHOUT SALARY OR COMPENSATION ARE OF THE CLASS WHICH THE EXECUTIVE
ORDER INTENDS NOT TO BE HELD BY PERSONS HOLDING FEDERAL OFFICES. 

"IT HAS BEEN ASKED WHETHER THE ORDER PROHIBITS FEDERAL OFFICERS FROM
HOLDING POSITIONS ON BOARDS OF EDUCATION, SCHOOL COMMITTEES, PUBLIC
LIBRARIES, RELIGIOUS OR ELEEMOSYNARY INSTITUTIONS INCORPORATED OR
ESTABLISHED OR SUSTAINED BY STATE OR MUNICIPAL AUTHORITY.  POSITIONS
AND SERVICE ON SUCH BOARDS AND COMMITTEES, AND PROFESSORSHIPS IN
COLLEGES /5/  ARE NOT REGARDED AS 'OFFICES' WITHIN THE CONTEMPLATION OF
THE EXECUTIVE ORDER, BUT AS EMPLOYMENTS OR SERVICE IN WHICH ALL GOOD
CITIZENS MAY BE ENGAGED WITHOUT INCOMPATIBILITY AND IN MANY CASES
WITHOUT NECESSARY INTERFERENCE WITH ANY POSITION WHICH THEY MAY HOLD
UNDER THE FEDERAL GOVERNMENT.  OFFICERS OF THE FEDERAL GOVERNMENT MAY
THEREFORE ENGAGE IN SUCH SERVICE, PROVIDED THE ATTENTION REQUIRED BY
SUCH EMPLOYMENT DOES NOT INTERFERE WITH THE REGULAR AND EFFICIENT
DISCHARGE OF THE DUTIES OF THEIR OFFICE UNDER THE FEDERAL GOVERNMENT. 

[[HC593'(ORIGINAL DOCUMENT PAGE 593)'  THE HEAD OF THE DEPARTMENT
UNDER WHOM THE FEDERAL OFFICE IS HELD WILL IN ALL CASES BE THE SOLE
JUDGE WHETHER OR NOT THE EMPLOYMENT DOES THUS INTERFERE. 

"THE QUESTION HAS ALSO BEEN ASKED WITH REGARD TO OFFICERS OF THE
STATE MILITIA.  CONGRESS HAVING EXERCISED THE POWER CONFERRED BY THE
CONSTITUTION TO PROVIDE FOR ORGANIZING THE MILITIA, WHICH IS LIABLE TO
BE CALLED FORTH TO BE EMPLOYED IN THE SERVICE OF THE UNITED STATES, AND
IS THUS, IN SOME SENSE, UNDER THE CONTROL OF THE GENERAL GOVERNMENT,
AND IS, MOREOVER, OF THE GREATEST VALUE TO THE PUBLIC, THE EXECUTIVE
ORDER OF THE 17TH JANUARY IS NOT CONSIDERED AS PROHIBITING FEDERAL
OFFICERS FROM BEING OFFICERS IN THE MILITIA IN THE STATES AND
TERRITORIES. 

"IT HAS BEEN ASKED WHETHER THE ORDER PROHIBITS PERSONS HOLDING
OFFICE UNDER THE FEDERAL GOVERNMENT BEING MEMBERS OF LOCAL OR MUNICIPAL
FIRE DEPARTMENTS, ALSO WHETHER IT APPLIES TO MECHANICS EMPLOYED BY THE
DAY IN THE ARMORIES, ARSENALS, AND NAVY YARDS, ETC., OF THE UNITED
STATES.  UNPAID SERVICE IN LOCAL OR MUNICIPAL FIRE DEPARTMENTS IS NOT
REGARDED AS AN OFFICE WITHIN THE INTENT OF THE EXECUTIVE ORDER, AND MAY
BE PERFORMED BY FEDERAL OFFICERS, PROVIDED IT DOES NOT INTERFERE WITH
THE REGULAR AND EFFICIENT DISCHARGE OF THE DUTIES OF THE FEDERAL
OFFICE, OF WHICH THE HEAD OF THE DEPARTMENT UNDER WHICH THE OFFICE IS
HELD WILL IN EACH CASE BE THE JUDGE. 

"MECHANICS AND LABORERS EMPLOYED BY THE DAY IN ARMORIES, ARSENALS,
NAVY YARDS, ETC., AND MASTER WORKMEN AND OTHERS WHO HOLD APPOINTMENTS
FROM THE GOVERNMENT OR FROM ANY DEPARTMENT, WHETHER FOR A FIXED TIME OR
AT THE PLEASURE OF THE APPOINTING POWER, ARE EMBRACED WITHIN THE
OPERATION OF THE ORDER." 

33.  ELIGIBLES HOLDING LOCAL OFFICE:  ELIGIBLES WHO ARE HOLDING A
LOCAL OFFICE NOT EXCEPTED FROM THE PROHIBITIONS OF THE ORDER OF JANUARY
17, 1873, ON SELECTION FOR AND ACCEPTANCE OF ANY POSITION IN THE
COMPETITIVE CLASSIFIED SERVICE OR OF UNCLASSIFIED LABORER MUST
IMMEDIATELY RESIGN THE LOCAL OFFICE. 

[[HC594'(ORIGINAL DOCUMENT PAGE 594)'  SUCH RESIGNATION MUST BE
EFFECTED WHETHER THE SERVICE IN THE LOCAL OFFICE IS COMPENSATED OR
UNCOMPENSATED OR WHETHER THE EMPLOYEE IS ON ACTIVE DUTY OR LEAVE
WITHOUT PAY.  THE HOLDING OF A LOCAL OFFICE NOT EXCEPTED FROM THE
PROHIBITIONS OF THE ORDER OF JANUARY 17, 1873, IS AN ABSOLUTE
DISQUALIFICATION FOR APPOINTMENT ARE WILLING IMMEDIATELY TO RESIGN THE
LOCAL OFFICE IN THE EVENT OF SELECTION FOR APPOINTMENT, THEIR
APPOINTMENTS CANNOT BE APPROVED. 

34.  MINOR LOCAL OFFICES WHICH MAY BE HELD BY GOVERNMENT OFFICERS
AND EMPLOYEES:  ALTHOUGH THE EXECUTIVE ORDERS OF JANUARY 17 AND JANUARY
28, 1873, PROHIBIT GENERALLY ANY PERSON HOLDING FEDERAL CIVIL OFFICE BY
APPOINTMENT, FROM ACCEPTING OR HOLDING AN OFFICE UNDER A STATE,
TERRITORIAL, OR MUNICIPAL GOVERNMENT, CERTAIN OFFICES OF A MINOR
CHARACTER ARE EXCEPTED FROM THIS GENERAL PROHIBITION.  AMONG THESE ARE
POSITIONS OF JUSTICE OF THE PEACE; NOTARY PUBLIC; COMMISSIONER TO TAKE
ACKNOWLEDGMENT OF DEEDS, OR BAIL, OR TO ADMINISTER OATHS; POSITIONS ON
BOARDS OF EDUCATION, SCHOOL COMMITTEES, PUBLIC LIBRARIES, AND IN
RELIGIOUS OR ELEEMOSYNARY INSTITUTIONS.  IN ADDITION, FEDERAL EMPLOYEES
ARE, UNDER CERTAIN CONDITIONS, PERMITTED TO HOLD OTHER LOCAL OFFICES
UNDER AUTHORITY OF THE EXECUTIVE ORDERS SET FORTH IN SECTION 35.  THE
PERMISSION TO HOLD LOCAL OFFICES GRANTED BY THESE EXECUTIVE ORDERS,
HOWEVER, IS NOT SUBJECT TO THE GENERAL PROHIBITION OF SECTION 9 OF THE
ACT OF AUGUST 2, 1939 (SEE SEC. 1), AGAINST PARTICIPATION IN POLITICAL
MANAGEMENT AND IN POLITICAL CAMPAIGNS BY FEDERAL EMPLOYEES. 

IN VIEW OF THE BROAD LANGUAGE OF SECTION 9 OF THE ACT OF AUGUST 2,
1939, THE INCUMBENCY BY A FEDERAL EMPLOYEE OF ANY ELECTIVE OFFICE
WHATEVER UNDER A STATE, TERRITORIAL, OR MUNICIPAL GOVERNMENT IS
PROHIBITED, REGARDLESS OF WHETHER OR NOT THE OFFICE IS OF SUCH
CHARACTER THAT ITS INCUMBENCY WAS PERMITTED BY EXECUTIVE ORDER PRIOR TO
THE ENACTMENT OF THE ACT. 

[[HC595'(ORIGINAL DOCUMENT PAGE 595)' THE INCUMBENCY BY A FEDERAL
EMPLOYEE OF AN APPOINTIVE OFFICE UNDER A STATE, TERRITORIAL, OR
MUNICIPAL GOVERNMENT IS PERMISSIBLE, PROVIDED SUCH INCUMBENCY IS
SPECIFICALLY AUTHORIZED BY SOME STATUTE OR EXECUTIVE ORDER.  IN
SECURING SUCH OFFICES, HOWEVER, AND IN THE DISCHARGE OF THE DUTIES
THEREOF, FEDERAL EMPLOYEES MUST NOT ENGAGE IN POLITICAL MANAGEMENT. 

/1/  APPOINTMENT IS MADE BY THE PRESIDENT BY AND WITH THE ADVICE AND
CONSENT OF THE SENATE TO POSTMASTER POSITIONS OF THE FIRST, SECOND AND
THIRD CLASSES, BUT THESE POSITIONS ARE IN THE COMPETITIVE CLASSIFIED
SERVICE UNDER THE ACT OF JUNE 25, 1938. 

/2/  SEE SEC. 35. 

/3/  SEE SEC. 8. 

/4/  A FEDERAL EMPLOYEE WHO RESIGNS AT THE EXPIRATION OF HIS ACCRUED
LEAVE MAY ACCEPT A STATE OR MUNICIPAL POSITION AFTER HIS LAST DAY OF
ACTIVE FEDERAL SERVICE (16 COMP. GEN. 776, FEB. 19, 1937). 

/5/  INCLUDES ASSISTANT PROFESSORSHIPS IN A STATE COLLEGE, ASSISTANT
LECTURESHIPS IN AN EVENING SCHOOL OF A MUNICIPAL UNIVERSITY,
INSTRUCTORSHIPS IN A STATE COLLEGE, AND SIMILAR POSITIONS IN STATE AND
MUNICIPAL COLLEGES AND UNIVERSITIES.  (MINUTES OF COMMISSION, AUGUST 7,
1937.) 

[[DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

THE HATCH ACT BY ^ 9(A) PROHIBITS FEDERAL EMPLOYEES FROM TAKING "AN
ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS."  SOME
OF THE EMPLOYEES, WHOSE UNION IS SPEAKING FOR THEM, WANT 

"TO RUN IN STATE AND LOCAL ELECTIONS FOR THE SCHOOL BOARD, 

     FOR CITY COUNCIL, FOR MAYOR"; "TO WRITE LETTERS ON POLITICAL

  SUBJECTS TO NEWSPAPERS"; "TO BE A DELEGATE IN A POLITICAL

  CONVENTION"; "TO RUN FOR AN OFFICE AND HOLD OFFICE IN A POLITICAL

  PARTY OR POLITICAL CLUB"; "TO CAMPAIGN FOR CANDIDATES FOR

  POLITICAL OFFICE"; "TO WORK AT POLLING PLACES IN BEHALF OF A

  POLITICAL PARTY." 

THERE IS NO DEFINITION OF WHAT "AN ACTIVE PART.  . . IN POLITICAL
CAMPAIGNS" MEANS.  THE ACT INCORPORATES OVER 3,000 RULINGS OF THE CIVIL
SERVICE COMMISSION BETWEEN 1886 AND 1940 AND MANY HUNDREDS OF RULINGS
SINCE 1940.  BUT EVEN WITH THAT GLOSS ON THE ACT, THE CRITICAL PHRASES
LACK PRECISION. 

[[HC596'(ORIGINAL DOCUMENT PAGE 596)'  IN 1971 THE COMMISSION
PUBLISHED A THREE-VOLUME WORK ENTITLED POLITICAL ACTIVITIES REPORTER
WHICH CONTAIN OVER 800 OF ITS DECISIONS SINCE THE ENACTMENT OF THE
HATCH ACT.  ONE CAN LEARN FROM STUDYING THOSE VOLUMES THAT IT IS NOT
"POLITICAL ACTIVITY"  TO MARCH IN A BAND DURING A POLITICAL PARADE OR
TO WEAR POLITICAL BADGES AND TO "PARTICIPATE FULLY IN PUBLIC AFFAIRS,
EXCEPT AS PROHIBITED BY LAW, IN A MANNER WHICH DOES NOT MATERIALLY
COMPROMISE HIS EFFICIENCY OR INTEGRITY AS AN EMPLOYEE OR THE
NAUTRALITY, EFFICIENCY, OR INTEGRITY OF HIS AGENCY."  5 CFR ^
733.111(A)(13). 

THAT IS TO SAY SOME THINGS, LIKE MARCHING IN A BAND, ARE CLEAR. 
OTHERS ARE PREGNANT WITH AMBIGUITY AS "PARTICIPATE FULLY IN PUBLIC
AFFAIRS, EXCEPT AS PROHIBITED BY LAW, IN A MANNER WHICH DOES NOT
MATERIALLY COMPROMISE," ETC.  PERMISSION TO "(TAKE AN ACTIVE PART.  . .
IN A NON-PARTISAN ELECTION," 5 CFR ^ 733.111(A)(10), ALSO RAISES LARGE
QUESTIONS OF UNCERTAINTY BECAUSE ONE MAY BE PARTISAN FOR A PERSON, AN
ISSUE, A CANDIDATE WITHOUT FEELING AN IDENTIFICATION WITH ONE POLITICAL
PARTY OR THE OTHER. 

THE DISTRICT COURT FELT THAT THE PROHIBITIONS IN THE ACT ARE "WORDED
IN GENERALITIES THAT LACK PRECISION," 346 F.SUPP.  578, 582, WITH THE
RESULT THAT IT IS HAZARDOUS FOR AN EMPLOYEE "IF HE VENTURES TO SPEAK ON
A POLITICAL MATTER SINCE HE WILL NOT KNOW WHEN HIS WORDS OR ACTS
RELATING TO POLITICAL SUBJECTS WILL OFFEND."  ID., AT 582 - 583. 

THE CHILLING EFFECT OF THESE VAGUE AND GENERALIZED PROHIBITIONS IS
SO OBVIOUS AS NOT TO NEED ELABORATION.  THAT EFFECT WOULD NOT BE
MATERIAL TO THE ISSUE OF CONSTITUTIONALITY IF ONLY THE NORMAL CONTOURS
OF THE POLICE POWER WERE INVOLVE .  ON THE RUN OF SOCIAL AND ECONOMIC
MATTERS THE "RATIONAL BASIS" STANDARD WHICH UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75, APPLIED WOULD SUFFICE.  /1/  BUT WHAT MAY HAVE
BEEN UNCLEAR TO SOME IN MITCHELL SHOULD BY NOW BE ABUNDANTLY CLEAR TO
ALL. 

[[HC597'(ORIGINAL DOCUMENT PAGE 597)'  WE DEAL HERE WITH A FIRST
AMENDMENT RIGHT TO SPEAK, TO PROPOSE, TO PUBLISH, TO PETITION
GOVERNMENT, TO ASSEMBLE.  TIME AND PLACE ARE OBVIOUS LIMITATIONS.  THUS
NO ONE COULD OBJECT IF EMPLOYEES WERE BARRED FROM USING OFFICE TIME TO
ENGAGE IN OUTSIDE ACTIVITIES WHETHER POLITICAL OR OTHERWISE.  BUT IT IS
OF NO CONCERN OF GOVERNMENT WHAT AN EMPLOYEE DOES IN HIS SPARE TIME,
WHETHER RELIGION, RECREATION, SOCIAL WORK, OR POLITICS IS HIS HOBBY-
UNLESS WHAT HE DOES IMPAIRS EFFICIENCY OR OTHER FACETS OF THE MERITS OF
HIS JOB.  SOME THINGS, SOME ACTIVITIES DO AFFECT OR MAY BE THOUGHT TO
AFFECT THE EMPLOYEE'S JOB PERFORMANCE.  BUT HIS POLITICAL CREED, LIKE
HIS RELIGION, IS IRRELEVANT.  IN THE AREAS OF SPEECH, LIKE RELIGION, IT
IS OF NO CONCERN WHAT THE EMPLOYEE SAYS IN PRIVATE TO HIS WIFE OR TO
THE PUBLIC IN CONSTITUTION HALL.  IF GOVERNMENT EMPLOYMENT WERE ONLY A
"PRIVILEGE," THEN ALL SORTS OF CONDITIONS MIGHT BE ATTACHED.  BUT IT IS
NOW SETTLED THAT GOVERNMENT EMPLOYMENT MAY NOT BE DENIED OR PENALIZED
"ON A BASIS THAT INFRINGES HIS CONSTITUTIONALLY PROTECTED INTERESTS-
ESPECIALLY, HIS INTEREST IN FREEDOM OF SPEECH."  SEE PERRY V.
SINDERMANN, 408 U.S. 593, 597.  IF GOVERNMENT, AS THE MAJORITY STATED
IN MITCHELL, MAY NOT CONDITION PUBLIC EMPLOYMENT ON THE BASIS THAT THE
EMPLOYEE WILL NOT "TAKE ANY ACTIVE PART IN MISSIONARY WORK," 330 U.S.,
AT 100, IT IS DIFFICULT TO SEE WHY IT MAY CONDITION EMPLOYMENT ON THE
BASIS THAT THE EMPLOYEE NOT TAKE "AN ACTIVE PART . . . IN POLITICAL
CAMPAIGNS."  FOR SPEECH, ASSEMBLY, AND PETITION ARE AS DEEPLY EMBEDDED
IN THE FIRST AMENDMENT AS PROSELYTIZING A RELIGIOUS CAUSE. 

[[HC598'(ORIGINAL DOCUMENT PAGE 598)' 

FREE DISCUSSION OF GOVERNMENTAL AFFAIRS IS BASIC IN OUR CONSTITUTIONAL
SYSTEM.  SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 250; MILLS V. ALABAMA,
384 U.S. 214, 218; MONITOR PATRIOT CO. V. ROY, 401 U.S. 265, 272.  LAWS
THAT TRENCH ON THAT AREA MUST BE NARROWLY AND PRECISELY DRAWN TO DEAL
WITH PRECISE ENDS.  OVERBREADTH IN THE AREA OF THE FIRST AMENDMENT HAS
A PECULIAR EVIL, THE EVIL OF CREATING CHILLING EFFECTS WHICH DETER THE
EXERCISE OF THOSE FREEDOMS.  DOMBROWSKI V. PFISTER, 380 U.S. 479, 486. 
AS WE STATED IN NAACP V. BUTTON, 371 U.S. 415, 433, IN SPEAKING OF
FIRST AMENDMENT FREEDOMS AND THE UNCONSTITUTIONALITY OF OVERBROAD
STATUTES, "THESE FREEDOMS ARE DELICATE AND VULNERABLE, AS WELL AS
SUPREMELY PREVIOUS IN OUR SOCIETY.  THE THREAT OF SANCTIONS MAY DETER
THEIR EXERCISE ALMOST AS POTENTLY AS THE ACTUAL APPLICATION OF
SANCTIONS."     MITCHELL IS OF A DIFFERENT VINTAGE FROM THE PRESENT
CASE.  SINCE ITS DATE, A HOST OF DECISIONS HAVE ILLUSTRATED THE NEED
FOR NARROWLY DRAWN STATUTES THAT TOUCH FIRST AMENDMENT RIGHTS.  A
TEACHER WAS HELD TO BE UNCONSTITUTIONALLY DISCHARGED FOR SENDING A
LETTER TO A NEWSPAPER THAT CRITIZED THE SCHOOL AUTHORITIES.  PICKERING
V. BOARD OF EDUCATION, 391 U.S. 563, 573.  "IN THESE CIRCUMSTANCES WE
CONCLUDE THAT THE INTEREST OF THE SCHOOL ADMINISTRATION IN LIMITING
TEACHERS' OPPORTUNITIES TO CONTRIBUTE TO PUBLIC DEBATE IS NOT
SIGNIFICANTLY GREATER THAN ITS INTEREST IN LIMITING A SIMILAR
CONTRIBUTION BY ANY MEMBER OF THE GENERAL PUBLIC."  WE FOLLOWED THE
SAME COURSE IN WOOD V. GEORGIA, 370 U.S. 375, WHEN WE RELIEVED A
SHERIFF FROM A CONTEMPT CONVICTION FOR MAKING A PUBLIC STATEMENT IN
CONNECTION WITH A CURRENT POLITICAL CONTROVERSY.  AS IN THE PRESENT
CASE, THE SHERIFF SPOKE AS A PRIVATE CITIZEN AND WHAT HE SAID DID NOT
INTERFERE WITH HIS DUTIES AS SHERIFF.  ID., AT 393 - 394. 

THE PRESENT ACT CANNOT BE APPROPRIATELY NARROWED TO MEET THE NEED
FOR NARROWLY DRAWN LANGUAGE NOT EMBRACING FIRST AMENDMENT SPEECH OR
WRITING WITHOUT SUBSTANTIAL REVISION. 

[[HC599'(ORIGINAL DOCUMENT PAGE 599)'  THAT REWRITING CANNOT BE DONE
BY THE COMMISSION BECAUSE CONGRESS REFUSED TO DELEGATE TO IT AUTHORITY
TO REGULATE FIRST AMENDMENT RIGHTS.  THE PROPOSAL TO DO SO AROUSED A
GREAT DEBATE IN CONGRESS /2/  AND SENATOR HATCH FINALLY SUBMITTED A
SUBSTITUTE, SAYING "(IT DOES AWAY WITH THE QUESTION OF THE DELEGATION
OF POWER."  /3/ 

THE COMMISSION, ON A CASE-BY-CASE APPROACH, HAS LISTED 13 CATEGORIES
OF PROHIBITED ACTIVITIES, 5 CFR ^ 733.122(B), STARTING WITH THE CATCH
ALL "INCLUDE BUT ARE NOT LIMITED TO."  SO THE COMMISSION ENDS UP WITH
OPEN-END DISCRETION TO PENALIZE X OR NOT TO PENALIZE HIM.  FOR EXAMPLE,
A "PERMISSIBLE" ACTIVITY IS THE EMPLOYEE'S RIGHT TO "(EXPRESS HIS
OPINION AS AN INDIVIDUAL PRIVATELY AND PUBLICLY ON POLITICAL SUBJECTS
AND CANDIDATES."  5 CFR ^ 733.111 (A)(2).  YET "SOLICITING VOTES" IS
PROHIBITED.  5 CFR ^ 733.122 (B)(7).  IS AN EMPLOYEE SAFE FROM
PUNISHMENT IF HE EXPRESSES HIS OPINION THAT CANDIDATE X IS THE BEST AND
CANDIDATE Y THE WORST?  IS THAT CROSING THE FORBIDDEN LINE OF
SOLICITING VOTES? 

A NURSING ASSISTANT AT A VETERANS' HOSPITAL PUT AN AD IN A NEWSPAPER
READING: 

"TO ALL MY MANY FRIENDS OF POPLAR BLUFF AND BUTLER 

COUNTY I WANT TO TAKE THIS OPPORTUNITY TO ASK YOUR 

VOTE AND SUPPORT IN THE ELECTION, TUESDAY, AUGUST 

7TH.  A VERY SPECIAL PERSON IS SEEKING THE DEMOCRATIC 

NOMINATION FOR SHERIFF.  I DO NOT HAVE TO TELL YOU OF 

HIS QUALIFICATIONS, HIS PAST RECORDS

  STAND.  "THIS PERSON IS MY DAD, LESTER (LESS) MASSINGHAM. 

        "THANK YOU

        "WALLACE (WALLY) MASSINGHAM" 

HE WAS HELD TO HAVE VIOLATED THE ACT.  MASSINGHAM, 1 POLITICAL
ACTIVITY REPORTER 792, 793 (1959). 

IS A LETTER A PERMISSIBLE "EXPRESSION" OF VIEWS OR A PROHIBITED
"SOLICITATION?"  THE SOLICITOR GENERAL SAYS IT IS A "PERMISSIBLE"
EXPRESSION; BUT THE COMMISSION RULED OTHERWISE.  FOR AN EMPLOYEE WHO
DOES NOT HAVE THE SOLICITOR GENERAL AS COUNSEL GREAT CONSEQUENCES FLOW
FROM AN INNOCENT DECISION.  HE MAY LOSE HIS JOB.  THEREFORE THE MOST
PRUDENT THING IS TO DO NOTHING.  THUS IS SELF-IMPOSED CENSORSHIP
IMPOSED ON MANY NERVOUS PEOPLE WHO LIVE ON NARROW ECONOMIC MARGINS. 

I WOULD STRIKE THIS PROVISION OF THE LAW DOWN AS UNCONSTITUTIONAL SO
THAT A NEW START MAY BE MADE ON THIS OLD PROBLEM THAT CONFUSES AND
RESTRICTS NEARLY 5 MILLION FEDERAL, STATE, AND LOCAL PUBLIC EMPLOYEES
TODAY THAT LIVE UNDER THE PRESENT ACT. 

[[DFN 

/1/  "FOR REGULATION OF EMPLOYEES IT IS NOT NECESSARY THAT THE ACT
REGULATED BY ANYTHING MORE THAN AN ACT REASONABLY DEEMED BY CONGRESS TO
INTERFERE WITH THE EFFICIENCY OF THE PUBLIC SERVICE."  UNITED PUBLIC
WORKERS V. MITCHELL, 330 U.S. 75, 101. 

/2/  S.3046, AS REPORTED BY THE SENATE COMMITTEE ON PRIVILEGES AND
ELECTIONS, AUTHORIZED "THE CIVIL SERVICE COMMISSION TO DEFINE THE TERM
'ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS' AS THAT
TERM IS USED IN THE PROHIBITIONS APPLICABLE TO FEDERAL EMPLOYEES AND IN
THE PROHIBITIONS APPLICABLE TO STATE AND LOCAL OFFICERS AND
EMPLOYEES."  S. REP. NO. 1236, 76TH CONG., 3D SESS., 2.  THE SENATE WAS
RELUCTANT TO LEAVE THE TASK OF DEFINING THESE TERMS "TO SOME
BUREAUCRATIC BOARD WHICH HAS ABSOLUTELY NO KNOWLEDGE OF POLITICAL
CONDITIONS AND CIRCUMSTANCES IN ANY SECTION OF THE COUNTRY."  86 CONG.,
REC. 2427 (REMARKS OF SEN. LUCAS).  THE SECTION ALSO WAS CHALLENGED AS
AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY.  ID., AT 2579
(REMARKS OF SEN. BROWN AND SEN.  MC KELLAR).  OTHERS WERE CONCERNED
WITH PROBLEMS OF FAIRNESS.  ID., AT 2720 (SEN. BANKHEAD). 

/3/  ID., AT 2928. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM
ON THE BRIEFS WERE ASSISTANT ATTORNEY GENERAL WOOD, ANDREW L. FREY,
ROBERT E. KOPP, AND ANTHONY L. MONDELLO. 

THOMAS C. MATTHEWS, JR., ARGUED THE CAUSE FOR APPELLEES.  WITH HIM
ON THE BRIEF WERE STEPHEN M. TRUITT, MELVIN L. WULF, RALPH J. TEMPLE,
AND PHILIP ELMAN. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY LEE JOHNSON,
ATTORNEY GENERAL, JOHN W. OSBURN, SOLICITOR GENERAL, AND A. J. LAUE AND
THOMAS H. DENNEY, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF OREGON;
AND BY STEPHEN J. POLLACK, RICHARD T. CONWAY, LEO M. PELLERZI, DONALD
M. MURTHA, ROBERT H. CHANIN, A. L. ZWERDLING, AND EDWARD J. HICKEY,
JR., FOR THE COALITION OF AMERICAN PUBLIC EMPLOYEES ET AL.
..END :
























BROADRICK V. OKLAHOMA 413 U.S. 601 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

           DISTRICT OF OKLAHOMA 

     NO. 71 - 1639.  ARGUED MARCH 26, 1973--DECIDED JUNE 25, 1973;
338 F.SUPP.  711, AFFIRMED. 


    APPELLANTS, STATE EMPLOYEES CHARGED BY THE OKLAHOMA STATE

  PERSONNEL BOARD WITH ACTIVELY ENGAGING IN PARTISAN POLITICAL

  ACTIVITIES (INCLUDING THE SOLICITATION OF MONEY) AMONG THEIR

  COWORKERS FOR THE BENEFIT OF THEIR SUPERIOR, IN ALLEGED VIOLATION

  OF ^ 818 OF THE STATE MERIT SYSTEM ACT, BROUGHT THIS SUIT

  CHALLENGING THE ACT'S VALIDITY ON THE GROUNDS THAT TWO OF ITS

  PARAGRAPHS ARE INVALID BECAUSE OF OVERBREADTH AND VAGUENESS.  ONE

  PARAGRAPH PROVIDES THAT NO CLASSIFIED SERVICE EMPLOYEE "SHALL

  DIRECTLY OR INDIRECTLY, SOLICIT, RECEIVE, OR IN ANY MANNER BE

  CONCERNED IN SOLICITING OR RECEIVING ANY ASSESSMENT . . . OR

CONTRIBUTION FOR ANY POLITICAL ORGANIZATION, CANDIDACY OR OTHER

  POLITICAL PURPOSE."  THE OTHER PROVIDES THAT NO SUCH EMPLOYEE

  SHALL BELONG TO "ANY NATIONAL, STATE OR LOCAL COMMITTEE OF A

  POLITICAL PARTY" OR BE AN OFFICER OR MEMBER OF A COMMITTEE OR A

  PARTISAN POLITICAL CLUB, OR A CANDIDATE FOR ANY PAID PUBLIC

  OFFICE, OR TAKE PART IN THE MANAGEMENT OR AFFAIRS OF ANY

  POLITICAL PARTY OR CAMPAIGN "EXCEPT TO EXERCISE HIS RIGHT AS A

  CITIZEN PRIVATELY TO EXPRESS HIS OPINION AND . . . VOTE."  THE

  DISTRICT COURT UPHELD THE PROVISIONS.  HELD:  SECTION 818 OF THE

  OKLAHOMA STATUTE IS NOT UNCONSTITUTIONAL ON ITS FACE.  CSC V.

LETTER CARRIERS, ANTE, P. 548.  PP. 607 - 618. 

      (A) THE STATUTE, WHICH GIVES ADEQUATE WARNING OF WHAT

  ACTIVITIES IT PROSCRIBES AND SETS FORTH EXPLICIT STANDARDS FOR

  THOSE WHO MUST APPLY IT, IS NOT IMPERMISSIBLY VAGUE.  PP. 607 -

  608. 

     (B) ALTHOUGH APPELLANTS CONTEND THAT THE STATUTE REACHES

  ACTIVITIES THAT ARE CONSTITUTIONALLY PROTECTED AS WELL AS THOSE

  THAT ARE NOT, IT IS CLEARLY CONSTITUTIONAL AS APPLIED TO THE

  CONDUCT WITH WHICH THEY ARE CHARGED AND BECAUSE IT IS NOT

  SUBSTANTIALLY OVERBROAD THEY CANNOT CHALLENGE THE STATUTE ON THE

GROUND THAT IT MIGHT BE APPLIED UNCONSTITUTIONALLY TO OTHERS, IN

  SITUATIONS NOT BEFORE THE COURT.  APPELLANTS' CONDUCT FALLS

  SQUARELY WITHIN THE PROSCRIPTIONS OF ^ 818, WHICH DEALS WITH

  ACTIVITIES THAT THE STATE HAS AMPLE POWER TO REGULATE, UNITED

  PUBLIC WORKERS V. MITCHELL, 330 U.S. 75; CSC V. LETTER CARRIERS,

  SUPRA, AND THE OPERATION OF THE STATUTE HAS BEEN ADMINISTRATIVELY

  CONFINED TO CLEARLY PARTISAN POLITICAL ACTIVITY.  PP. 609 - 618. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS J.,
FILED A DISSENTING OPINION, POST, P. 618.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH STEWART AND MARSHALL, JJ., JOINED POST, P.
621. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

ACT, OKLA. STAT. ANN., TIT. 74, ^ 801 ET SEQ., RESTRICTS THE POLITICAL
ACTIVITIES OF THE STATE'S CLASSIFIED CIVIL SERVANTS IN MUCH THE SAME
MANNER THAT THE HATCH ACT PROSCRIBES PARTISAN POLITICAL ACTIVITIES OF
FEDERAL EMPLOYEES.  THREE EMPLOYEES OF THE OKLAHOMA CORPORATION
COMMISSION WHO ARE SUBJECT TO THE PROSCRIPTIONS OF ^ 818 SEEK TO HAVE
TWO OF ITS PARAGRAPHS DECLARED UNCONSTITUTIONAL ON THEIR FACE AND
ENJOINED BECAUSE OF ASSERTED VAGUENESS AND OVERBREADTH.  AFTER A
HEARING, THE DISTRICT COURT UPHELD THE PROVISIONS AND DENIED RELIEF. 
338 F.SUPP.  711.  WE NOTED PROBABLE JURISDICTION OF THE APPEAL, 409
U.S. 1058, SO THAT APPELLANTS' CLAIMS COULD BE CONSIDERED TOGETHER WITH
THOSE OF THEIR FEDERAL COUNTERPARTS IN CSC V. LETTER CARRIERS, ANTE, P.
548.  WE AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

MERIT SYSTEM OF PERSONNEL ADMINISTRATION.  /1/  THE SECTION SERVES
ROUGHLY THE SAME FUNCTION AS THE ANALOGOUS PROVISIONS OF THE OTHER 49
STATES, /2/  AND IS PATTERNED ON ^ 9 (A) OF THE HATCH ACT.  /3/
WITHOUT QUESTION, A BROAD RANGE OF POLITICAL ACTIVITIES AND CONDUCT IS
PROSCRIBED BY THE SECTION.  PARAGRAPH SIX, ONE OF THE CONTESTED
PORTIONS, PROVIDES THAT "(NO EMPLOYEE IN THE CLASSIFIED SERVICE . . .
SHALL, DIRECTLY OR INDIRECTLY, SOLICIT, RECEIVE, OR IN ANY MANNER BE
CONCERNED IN SOLICITING OR RECEIVING ANY ASSESSMENT . . . OR
CONTRIBUTION FOR ANY POLITICAL ORGANIZATION, CANDIDACY OR OTHER
POLITICAL PURPOSE."  PARAGRAPH SEVEN, THE OTHER CHALLENGED PARAGRAPH,
PROVIDES THAT NO SUCH EMPLOYEE "SHALL BE A MEMBER OF ANY NATIONAL,
STATE OR LOCAL COMMITTEE OF A POLITICAL PARTY, OR AN OFFICER OR MEMBER
OF A COMMITTEE OF A PARTISAN POLITICAL CLUB, OR A CANDIDATE FOR
NOMINATION OR ELECTION TO ANY PAID PUBLIC OFFICE."  THAT PARAGRAPH
FURTHER PROHIBITS SUCH EMPLOYEES FROM "TAKING) PART IN THE MANAGEMENT
OR AFFAIRS OF ANY POLITICAL PARTY OR IN ANY POLITICAL CAMPAIGN, EXCEPT
TO EXERCISE HIS RIGHT AS A CITIZEN PRIVATELY TO EXPRESS HIS OPINION AND
TO CASE HIS VOTE."  AS A COMPLEMENTARY PROSCRIPTION (NOT CHALLENGED IN
THIS LAWSUIT) THE FIRST PARAGRAPH PROHIBITS ANY PERSON FROM "IN ANY
WAY" BEING "FAVORED OR DISCRIMINATED AGAINST WITH RESPECT TO EMPLOYMENT
IN THE CLASSIFIED SERVICE BECAUSE OF HIS POLITICAL . . . OPINIONS OR
AFFILIATIONS."  RESPONSIBILITY FOR MAINTAINING AND ENFORCING ^ 818'S
PROSCRIPTIONS IS VESTED IN THE STATE PERSONNEL BOARD AND THE STATE
PERSONNEL DIRECTOR, WHO IS APPOINTED BY THE BOARD.  VIOLATION OF ^ 818
RESULTS IN DISMISSAL FROM EMPLOYMENT AND POSSIBLE CRIMINAL SANCTIONS
AND LIMITED STATE EMPLOYMENT INELIGIBILITY.  OKLA. STAT. ANN., TIT. 74,
^^ 818 AND 819. 

APPELLANTS DO NOT QUESTION OKLAHOMA'S RIGHT TO PLACE EVEN-HANDED
RESTRICTIONS ON THE PARTISAN POLITICAL CONDUCT OF STATE EMPLOYEES. 
APPELLANTS FREELY CONCEDE THAT SUCH RESTRICTIONS SERVE VALID AND
IMPORTANT STATE INTERESTS, PARTICULARLY WITH RESPECT TO ATTRACTING
GREATER NUMBERS OF QUALIFIED PEOPLE BY INSURING THEIR JOB SECURITY,
FREE FROM THE VICISSITUDES OF THE ELECTIVE PROCESS, AND BY PROTECTING
THEM FROM "POLITICAL EXTORTION."  /4/  SEE UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75, 99 - 103 (1947).  RATHER, APPELLANTS MAINTAIN
THAT HOWEVER PERMISSIBLE, EVEN COMMENDABLE, THE GOALS OF ^ 818 MAY BE,
ITS LANGUAGE IS UNCONSTITUTIONALLY VAGUE AND ITS PROHIBITIONS TOO BROAD
IN THEIR SWEEP, FAILING TO DISTINGUISH BETWEEN CONDUCT THAT MAY BE
PROSCRIBED AND CONDUCT THAT MUST BE PERMITTED.  FOR THESE AND OTHER
REASONS, /5/  APPELLANTS ASSERT THAT THE SIXTH AND SEVENTH PARAGRAPHS
OF ^ 818 ARE VOID IN TOTO AND CANNOT BE ENFORCED AGAINST THEM OR ANYONE
ELSE.  /6/ 

WE HAVE HELD TODAY THAT THE HATCH ACT IS NOT IMPERMISSIBLY VAGUE. 
CSC V. LETTER CARRIERS, ANTE, P. 548.  WE HAVE LITTLE DOUBT THAT ^ 818
IS SIMILARLY NOT SO VAGUE THAT "MEN OF COMMON INTELLIGENCE MUST
NECESSARILY GUESS AT ITS MEANING."  CONNALLY V. GENERAL CONSTRUCTION
CO., 269 U.S. 385, 391 (1926).  SEE GRAYNED V. CITY OF ROCKFORD, 408
U.S. 104 108 - 114 (1972); COLTEN V. KENTUCKY, 407 U.S. 104, 110 - 111
(1972); CAMERON V. JOHNSON, 390 U.S. 611, 616 (1968).  WHATEVER OTHER
PROBLEMS THERE ARE WITH ^ 818, IT IS ALL BUT FRIVOLOUS TO SUGGEST THAT
THE SECTION FAILS TO GIVE ADEQUATE WARNING OF WHAT ACTIVITIES IT
PROSCRIBES OR FAILS TO SET OUT "EXPLICIT STANDARDS" FOR THOSE WHO MUST
APPLY IT.  GRAYNED V. CITY OF ROCKFORD, SUPRA, AT 108.  IN THE PLAINEST
LANGUAGE, IT PROHIBITS ANY STATE CLASSIFIED EMPLOYEE FROM BEING "AN
OFFICER OR MEMBER" OF A "PARTISAN POLITICAL CLUB" OR A CANDIDATE FOR
"ANY PAID PUBLIC OFFICE."  IT FORBIDS SOLICITATION OF CONTRIBUTIONS
"FOR ANY POLITICAL ORGANIZATION, CANDIDACY OR OTHER POLITICAL PURPOSE"
AND TAKING PART "IN THE MANAGEMENT OR AFFAIRS OF ANY POLITICAL PARTY OR
IN ANY POLITICAL CAMPAIGN."  WORDS INEVITABLY CONTAIN GERMS OF
UNCERTAINTY AND, AS WITH THE HATCH ACT, THERE MAY BE DISPUTES OVER THE
MEANING OF SUCH TERMS IN ^ 818 AS "PARTISAN," OR "TAKE PART IN," OR
"AFFAIRS OF" POLITICAL PARTIES.  BUT WAHT WAS SAID IN LETTER CARRIERS,
ANTE, AT 578 - 579, IS APPLICABLE HERE: "THERE ARE LIMITATIONS IN THE
ENGLISH LANGUAGE WITH RESPECT TO BEING BOTH SPECIFIC AND MANAGEABLY
BRIEF, AND IT SEEMS TO US THAT ALTHOUGH THE PROHIBITIONS MAY NOT
SATISFY THOSE INTENT ON FINDING FAULT AT ANY COST, THEY ARE SET OUT IN
TERMS THAT THE ORDINARY PERSON EXERCISING ORDINARY COMMON SENSE CAN
SUFFICIENTLY UNDERSTAND AND COMPLY WITH, WITHOUT SACRIFICE TO THE
PUBLIC INTEREST."  /7/  MOREOVER, EVEN IF THE OUTERMOST BOUNDARIES OF ^
818 MAY BE IMPRECISE, ANY SUCH UNCERTAINTY HAS LITTLE RELEVANCE HERE,
WHERE APPELLANTS' CONDUCT FALLS SQUARELY WITHIN THE "HARD CORE" OF THE
STATUTE'S PROSCRIPTIONS AND APPELLANTS CONCEDE AS MUCH.  /8/  SEE
DOMBROWSKI V. PFISTER, 380 U.S. 479, 491 - 492 (1965); UNITED STATES V.
NATIONAL DAIRY PRODUCTS CORP., 372 U.S. 29 (1963); WILLIAMS V. UNITED
STATES, 341 U.S. 97 (1951); ROBINSON V. UNITED STATES, 324 U.S. 282,
286 (1945); UNITED STATES V. WURZBACH, 280 U.S. 396 (1930). 

SHORTLY BEFORE APPELLANTS COMMENCED THEIR ACTION IN THE DISTRICT
COURT, THEY WERE CHARGED BY THE STATE PERSONNEL BOARD WITH PATENT
VIOLATIONS OF ^ 818.  /9/  ACCORDING TO THE BOARD'S CHARGES, APPELLANTS
ACTIVELY PARTICIPATED IN THE 1970 RE-ELECTION CAMPAIGN OF A CORPORATION
COMMISSIONER, APPELLANTS' SUPERIOR.  ALL THREE ALLEGEDLY ASKED OTHER
CORPORATION COMMISSION EMPLOYEES (INDIVIDUALLY AND IN GROUPS) TO DO
CAMPAIGN WORK OR TO GIVE REFERRALS TO PERSONS WHO MIGHT HELP IN THE
CAMPAIGN.  MOST OF THESE REQUESTS WERE MADE AT DISTRICT OFFICES OF THE
COMMISSION'S OIL AND GAS CONSERVATION DIVISION.  TWO OF THE APPELLANTS
WERE CHARGED WITH SOLICITING MONEY FOR THE CAMPAIGN FROM COMMISSION
EMPLOYEES AND ONE WAS ALSO CHARGED WITH RECEIVING AND DISTRIBUTING
CAMPAIGN POSTERS IN BULK.  IN THE CONTEXT OF THIS TYPE OF OBVIOUSLY
COVERED CONDUCT, THE STATEMENT OF MR. JUSTICE HOLMES IS PARTICULARLY
APPROPRIATE:  "IF THERE IS ANY DIFFICULTY . . . IT WILL BE TIME ENOUGH
TO CONSIDER IT WHEN RAISED BY SOMEONE WHOM IT CONCERNS."  UNITED STATES
V. WURZBACH, SUPRA, AT 399. 

APPELLANTS ASSERT THAT ^ 818 HAS BEEN CONSTRUED AS APPLYING TO SUCH
ALLEGEDLY PROTECTED POLITICAL EXPRESSION AS THE WEARING OF POLITICAL
BUTTONS OR THE DISPLAYING OF BUMPER STICKERS.  /10/  BUT APPELLANTS DID
NOT ENGAGE IN ANY SUCH ACTIVITY.  THEY ARE CHARGED WITH ACTIVELY
ENGAGING IN PARTISAN POLITICAL ACTIVITIES--INCLUDING THE SOLICITATION
OF MONEY--AMONG THEIR CO-WORKERS FOR THE BENEFIT OF THEIR SUPERIOR. 
APPELLANTS CONCEDE--AND CORRECTLY SO, SEE LETTER CARRIERS, SUPRA--THAT
^ 818 WOULD BE CONSTITUTIONAL AS APPLIED TO THIS TYPE OF CONDUCT.  /11/
THEY NEVERTHELESS MAINTAIN THAT THE STATUTE IS OVERBROAD AND PURPORTS
TO REACH PROTECTED, AS WELL AS UNPROTECTED CONDUCT, AND MUST THEREFORE
BE STRUCK DOWN ON ITS FACE AND HELD TO BE INCAPABLE OF ANY
CONSTITUTIONAL APPLICATION.  WE DO NOT BELIEVE THAT THE OVERBREADTH
DOCTRINE MAY APPROPRIATELY BE INVOKED IN THIS MANNER HERE. 

EMBEDDED IN THE TRADITIONAL RULES GOVERNING CONSTITUTIONAL
ADJUDICATION IS THE PRINCIPLE THAT A PERSON TO WHOM A STATUTE MAY
CONSTITUTIONALLY BE APPLIED WILL NOT BE HEARD TO CHALLENGE THAT STATUTE
ON THE GROUND THAT IT MAY CONCEIVABLY BE APPLIED UNCONSTITUTIONALLY TO
OTHERS, IN OTHER SITUATIONS NOT BEFORE THE COURT.  SEE, E. G., AUSTIN
V. THE ALDERMEN, 7 WALL.  694, 698 - 699 (1869); SUPERVISORS V.
STANLEY, 105 U.S. 305, 311 - 315 (1882); HATCH V. REARDON, 204 U.S.
152, 160 - 161 (1907); YAZOO & M. V. R. CO. V. JACKSON VINEGAR CO., 226
U.S. 217, 219 - 220 (1912); UNITED STATES V. WURZBACH, SUPRA, AT 399;
CARMICHAEL V. SOUTHERN COAL & COKE CO., 301 U.S. 495, 513 (1937);
UNITED STATES V. RAINES, 362 U.S. 17 (1960).  A CLOSELY RELATED
PRINCIPLE IS THAT CONSTITUTIONAL RIGHTS ARE PERSONAL AND MAY NOT BE
ASSERTED VICARIOUSLY.  SEE MC GOWAN V. MARYLAND, 366 U.S. 420, 429 -
430 (1961).  THESE PRINCIPLES REST ON MORE THAN THE FUSSINESS OF
JUDGES.  THEY REFLECT THE CONVICTION THAT UNDER OUR CONSTITUTIONAL
SYSTEM COURTS ARE NOT ROVING COMMISSIONS ASSIGNED TO PASS JUDGMENT ON
THE VALIDITY OF THE NATION'S LAWS.  SEE YOUNGER V. HARRIS, 401 U.S. 37,
52 (1971).  CONSTITUTIONAL JUDGMENTS, AS MR. CHIEF JUSTICE MARSHALL
RECOGNIZED, ARE JUSTIFIED ONLY OUT OF THE NECESSITY OF ADJUDICATING
RIGHTS IN PARTICULAR CASES BETWEEN THE LITIGANTS BROUGHT BEFORE THE
COURT: 

     "SO IF A LAW BE IN OPPOSITION TO THE CONSTITUTION; IF BOTH THE

  LAW AND THE CONSTITUTION APPLY TO A PARTICULAR CASE, SO THAT THE

  COURT MUST EITHER DECIDE THAT CASE CONFORMABLY TO THE LAW,

  DISREGARDING THE CONSTITUTION; OR CONFORMABLY TO THE

  CONSTITUTION, DISREGARDING THE LAW; THE COURT MUST DETERMINE

  WHICH OF THESE CONFLICTING RULES GOVERNS THE CASE.  THIS IS OF

  THE VERY ESSENCE OF JUDICIAL DUTY."  MARBURY V. MADISON, 1 CRANCH

  137, 178 (1803). 

IN THE PAST, THE COURT HAS RECOGNIZED SOME LIMITED EXCEPTIONS TO
THESE PRINCIPLES, BUT ONLY BECAUSE OF THE MOST "WEIGHTY COUNTERVAILING
POLICIES."  UNITED STATES V. RAINES, 362 U.S., AT 22 -23.  /12/  ONE
SUCH EXCEPTION IS WHERE INDIVIDUALS NOT PARTIES TO A PARTICULAR SUIT
STAND TO LOSE BY ITS OUTCOME AND YET HAVE NO EFFECTIVE AVENUE OF
PRESERVING THEIR RIGHTS THEMSELVES.  SEE EISENSTADT V. BAIRD, 405 U. S.
438, 444 - 446 (1972); NAACP V. ALABAMA, 357 U. S. 449 (1958).  ANOTHER
EXCEPTION HAS BEEN CARVED OUT IN THE AREA OF THE FIRST AMENDMENT. 

IT HAS LONG BEEN RECOGNIZED THAT THE FIRST AMENDMENT NEEDS BREATHING
SPACE AND THAT STATUTES ATTEMPTING TO RESTRICT OR BURDEN THE EXERCISE
OF FIRST AMENDMENT RIGHTS MUST BE NARROWLY DRAWN AND REPRESENT A
CONSIDERED LEGISLATIVE JUDGMENT THAT A PARTICULAR MODE OF EXPRESSION
HAS TO GIVE WAY TO OTHER COMPELLING NEEDS OF SOCIETY.  HERNDON V.
LOWRY, 301 U. S. 242, 258 (1937); SHELTON V. TUCKER, 364 U.S. 479, 488
(1960); GRAYNED V. CITY OF ROCKFORD, 408 U. S., AT 116 - 117.  AS A
COROLLARY, THE COURT HAS ALTERED ITS TRADITIONAL RULES OF STANDING TO
PERMIT-IN THE FIRST AMENDMENT AREA--"ATTACKS ON OVERLY BROAD STATUTES
WITH NO REQUIREMENT THAT THE PERSON MAKING THE ATTACK DEMONSTRATE THAT
HIS OWN CONDUCT COULD NOT BE REGULATED BY A STATUTE DRAWN WITH THE
REQUISITE NARROW SPECIFICITY."  DOMBROWSKI V. PFISTER, 380 U. S., AT
486.  LITIGANTS, THEREFORE, ARE PERMITTED TO CHALLENGE A STATUTE NOT
BECAUSE THEIR OWN RIGHTS OF FREE EXPRESSION ARE VIOLATED, BUT BECAUSE
OF A JUDICIAL PREDICTION OR ASSUMPTION THAT THE STATUTE'S VERY
EXISTENCE MAY CAUSE OTHERS NOT BEFORE THE COURT TO REFRAIN FROM
CONSTITUTIONALLY PROTECTED SPEECH OR EXPRESSION. 

SUCH CLAIMS OF FACIAL OVERBREADTH HAVE BEEN ENTERTAINED IN CASES
INVOLVING STATUTES WHICH, BY THEIR TERMS, SEEK TO REGULATE "ONLY SPOKEN
WORDS."  GOODING V. WILSON, 405 U. S. 518, 520 (1972).  SEE COHEN V.
CALIFORNIA, 403 U. S. 15 (1971); STREET V. NEW YORK, 394 U. S. 576
(1969); BRANDENBURG V. OHIO, 395 U. S. 444 (1969); CHAPLINSKY V. NEW
HAMPSHIRE, 315 U. S. 568 (1942).  IN SUCH CASES, IT HAS BEEN THE
JUDGMENT OF THIS COURT THAT THE POSSIBLE HARM TO SOCIETY IN PERMITTING
SOME UNPROTECTED SPEECH TO GO UNPUNISHED IS OUTWEIGHED BY THE
POSSIBILITY THAT PROTECTED SPEECH OF OTHERS MAY BE MUTED AND PERCEIVED
GRIEVANCES LEFT TO FESTER BECAUSE OF THE POSSIBLE INHIBITORY EFFECTS OF
OVERLY BROAD STATUTES.  OVERBREADTH ATTACKS HAVE ALSO BEEN ALLOWED
WHERE THE COURT THOUGHT RIGHTS OF ASSOCIATION WERE ENSNARED IN STATUTES
WHICH, BY THEIR BROAD SWEEP, MIGHT RESULT IN BURDENING INNOCENT
ASSOCIATION.  SEE KEYISHIAN V. BOARD OF REGENTS, 385 U. S. 589 (1967);
UNITED STATES V. ROBEL.  389 U. S. 258 (1967); APTHEKER V. SECRETARY OF
STATE, 378 U. S. 500 (1964); SHELTON V. TUCKER, SUPRA.  FACIAL
OVERBREADTH CALIMS HAVE ALSO BEEN ENTERTAINED WHERE STATUTES, BY THEIR
TERMS, PURPORT TO REGULATE THE TIME, PLACE, AND MANNER OF EXPRESSIVE OR
COMMUNICATIVE CONDUCT, SEE GRAYNED V. CITY OF ROCKFORD, SUPRA, AT 114 -
121; CAMERON V. JOHNSON, 390 U. S., AT 617 - 619; ZWICKLER V. KOOTA,
389 U. S. 241, 249 - 250 (1967); THORNHILL V. ALABAMA, 310 U. S. 88
(1940), AND WHERE SUCH CONDUCT HAS REQUIRED OFFICIAL APPROVAL UNDER
LAWS THAT DELEGATED STANDARDLESS DISCRETIONARY POWER TO LOCAL
FUNCTIONARIES, RESULTING IN VIRTUALLY UNREVIEWABLE PRIOR RESTRAINTS ON
FIRST AMENDMENT RIGHTS.  SEE SHUTTLESWORTH V. BIRMINGHAM, 394 U. S. 147
(1969); COX V. LOUISIANA, 379 U. S. 536, 553 - 558 (1965); KUNZ V. NEW
YORK, 340 U. S. 290 (1951); LOVELL V. GRIFFIN, 303 U. S. 444 (1938). 
THE CONSEQUENCE OF OUR DEPARTURE FROM TRADITIONAL RULES OF STANDING IN
THE FIRST AMENDMENT AREA IS THAT ANY ENFORCEMENT OF A STATUTE THUS
PLACED AT ISSUE IS TOTALLY FORBIDDEN UNTIL AND UNLESS A LIMITING
CONSTRUCTION OR PARTIAL INVALIDATION SO NARROWS IT AS TO REMOVE THE
SEEMING THREAT OR DETERRENCE TO CONSTITUTIONALLY PROTECTED EXPRESSION. 
APPLICATION OF THE OVERBREADTH DOCTRINE IN THIS MANNER IS, MANIFESTLY,
STRONG MEDICINE.  IT HAS BEEN EMPLOYED BY THE COURT SPARINGLY AND ONLY
AS A LAST RESORT.  FACIAL OVERBREADTH HAS NOT BEEN INVOKED WHEN A
LIMITING CONSTRUCTION HAS BEEN OR COULD BE PLACED ON THE CHALLENGED
STATUTE.  SEE DOMBROWSKI V. PFISTER, 380 U. S. , AT 491; COX V. NEW
HAMPSHIRE, 312 U. S. 569 (1941); UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, 402 U. S. 363 (1971); CF. BREARD V. ALEXANDRIA, 341 U. S.
622 (1951).  EQUALLY IMPORTANT, OVERBREADTH CLAIMS, IF ENTERTAINED AT
ALL, HAVE BEEN CURTAILED WHEN INVOKED AGAINST ORDINARY CRIMINAL LAWS
THAT ARE SOUGHT TO BE APPLIED TO PROTECTED CONDUCT.  IN CANTWELL V.
CONNECTICUT, 310 U. S. 296 (1940), JESSE CANTWELL, A JEHOVAH'S WITNESS,
WAS CONVICTED OF COMMON-LAW BREACH OF THE PEACE FOR PLAYING A
PHONOGRAPH RECORD ATTACKING THE CATHOLIC CHURCH BEFORE TWO CATHOLIC MEN
ON A NEW HAVEN STREET.  THE COURT REVERSED CANTWELL'S CONVICTION BUT
ONLY ON THE GROUND THAT HIS CONDUCT, "CONSIDERED IN THE LIGHT OF THE
CONSTITUTIONAL GUARANTEES," COULD NOT BE PUNISHED UNDER "THE COMMON LAW
OFFENSE IN QUESTION."  ID., AT 311 (FOOTNOTE OMITTED).  THE COURT DID
NOT HOLD THAT THE OFFENSE "KNOWN AS BREACH OF THE PEACE" MUST FALL IN
TOTO BECAUSE IT WAS CAPABLE OF SOME UNCONSTITUTIONAL APPLICATIONS, AND,
IN FACT, THE COURT SEEMINGLY ENVISIONED ITS CONTINUED USE AGAINST "A
GREAT VARIETY OF CONDUCT DESTROYING OR MENACING PUBLIC ORDER AND
TRANQUILITY."  ID., AT 308.  SEE GARNER V. LOUISIANA, 368 U. S. 157,
202 - 203, 205 (1961) (HARLAN, J., CONCURRING IN JUDGMENT).  SIMILARLY,
IN REVIEWING THE STATUTORY BREACH-OF-THE-PEACE CONVICTIONS INVOLVED IN
EDWARDS V. SOUTH CAROLINA, 372 U. S. 229 (1963), AND COX V. LOUISIANA,
SUPRA, AT 544 - 552, THE COURT CONSIDERED IN DETAIL THE STATE'S
EVIDENCE AND IN EACH CASE CONCLUDED THAT THE CONDUCT AT ISSUE COULD NOT
ITSELF BE PUNISHED UNDER A BREACH-OF-THE-PEACE STATUTE.  ON THE BASIS,
THE CONVICTIONS WERE REVERSED.  /13/  SEE ALSO TEAMSTERS UNION V. VOGT,
INC., 354 U. S. 284 (1957).  ADDITIONALLY, OVERBREADTH SCRUTINY HAS
GENERALLY BEEN SOMEWHAT LESS RIGID IN THE CONTEXT OF STATUTES
REGULATING CONDUCT IN THE SHADOW OF THE FIRST AMENDMENT, BUT DOING SO
IN A NEUTRAL, NONCENSORIAL MANNER.  SEE UNITED STATES V. HARRISS, 347
U. S. 612 (1954); UNITED STATES V. CIO, 335 U. S. 106 (1948); CF. RED
LION BROADCASTING CO. V. FCC, 395 U. S. 367 (1969); PICKERING V. BOARD
OF EDUCATION, 391 U. S. 563, 565 N. 1 (1968); EASTERN RAILROAD
CONFERENCE V. NOERR MOTOR FREIGHT, INC., 365 U. S. 127 (1961). 

IT REMAINS A "MATTER OF NO LITTLE DIFFICULTY" TO DETERMINE WHEN A LAW
MAY PROPERLY BE HELD VOID ON ITS FACE AND WHEN "SUCH SUMMARY ACTION" IS
INAPPROPRIATE.  COATES V. CITY OF CINCINNATI, 402 U. S. 611, 617 (1971)
(SEPARATE OPINION OF BLACK, J.).  BUT THE PLAIN IMPORT OF OUR CASES IS,
AT THE VERY LEAST, THAT FACIAL OVERBREADTH ADJUDICATION IS AN EXCEPTION
TO OUR TRADITIONAL RULES OF PRACTICE AND THAT ITS FUNCTION, A LIMITED
ONE AT THE OUTSET, ATTENUATES AS THE OTHERWISE UNPROTECTED BEHAVIOR
THAT IT FORBIDS THE STATE TO SANCTION MOVES FROM "PURE SPEECH" TOWARDS
CONDUCT AND THAT CONDUCT--EVEN IF EXPRESSIVE--FALLS WITHIN THE SCOPE OF
OTHERWISE VALID CRIMINAL LAWS THAT REFLECT LEGITIMATE STATE INTERESTS
IN MAINTAINING COMPREHENSIVE CONTROLS OVER HARMFUL, CONSTITUTIONALLY
UNPROTECTED CONDUCT.  ALTHOUGH SUCH LAWS, IF TOO BROADLY WORDED, MAY
DETER PROTECTED SPEECH TO SOME UNKNOWN EXTENT, THERE COMES A POINT
WHERE THAT EFFECT--AT BEST A PREDICTION--CANNOT, WITH CONFIDENCE,
JUSTIFY INVALIDATING A STATUTE ON ITS FACE AND SO PROHIBITING A STATE
FROM ENFORCING THE STATUTE AGAINST CONDUCT THAT IS ADMITTEDLY WITHIN
ITS POWER TO PROSCRIBE.  CF. ALDERMAN V. UNITED STATES, 394 U. S. 165,
174 - 175 (1969).  TO PUT THE MATTER ANOTHER WAY, PARTICULARLY WHERE
CONDUCT AND NOT MERELY SPEECH IS INVOLVED, WE BELIEVE THAT THE
OVERBREADTH OF A STATUTE MUST NOT ONLY BE REAL, BUT SUBSTANTIAL AS
WELL, JUDGED IN RELATION TO THE STATUTE'S PLAINLY LEGITIMATE SWEEP.  IT
IS OUR VIEW THAT ^ 818 IS NOT SUBSTANTIALLY OVERBROAD AND THAT WHATEVER
OVERBREADTH MAY EXIST SHOULD BE CURED THROUGH CASE-BY-CASE ANALYSIS OF
THE FACT SITUATIONS TO WHICH ITS SANCTIONS, ASSERTEDLY, MAY NOT BE
APPLIED.  /14/ 

UNLIKE ORDINARY BREACH-OF-THE-PEACE STATUTES OR OTHER BROAD
REGULATORY ACTS, ^ 818 IS DIRECTED, BY ITS TERMS, AT POLITICAL
EXPRESSION WHICH IF ENGAGED IN BY PRIVATE PERSONS WOULD PLAINLY BE
PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS.  BUT AT THE SAME
TIME, ^ 818 IS NOT A CENSORIAL STATUTE, DIRECTED AT PARTICULAR GROUPS
OR VIEWPOINTS.  CF. KEYISHIAN V. BOARD OF REGENTS, SUPRA.  THE STATUTE,
RATHER, SEEKS TO REGULATE POLITICAL ACTIVITY IN AN EVEN-HANDED AND
NEUTRAL MANNER.  AS INDICATED, SUCH STATUTES HAVE IN THE PAST BEEN
SUBJECT TO A LESS EXACTING OVERBREADTH SCRUTING.  MOREOVER, THE FACT
REMAINS THAT ^ 818 REGULATES A SUBSTANTIAL SPECTRUM OF CONDUCT THAT IS
AS MANIFESTLY SUBJECT TO STATE REGULATION AS THE PUBLIC PEACE OR
CRIMINAL TRESPASS.  THIS MUCH WAS ESTABLISHED IN UNITED PUBLIC WORKERS
V. MITCHELL, AND HAS BEEN UNHESITATINGLY REAFFIRMED TODAY IN LETTER
CARRIERS, SUPRA.  UNDER THE DECISION IN LETTER CARRIERS, THERE IS NO
QUESTION THAT ^ 818 IS VALID AT LEAST INSOFAR AS IT FORBIDS CLASSIFIED
EMPLOYEES FROM:  SOLICITING CONTRIBUTIONS FOR PARTISAN CANDIDATES,
POLITICAL PARTIES, OR OTHER PARTISAN POLITICAL PURPOSES; BECOMING
MEMBERS OF NATIONAL, STATE, OR LOCAL COMMITTEES OF POLITICAL PARTIES,
OR OFFICERS OR COMMITTEE MEMBERS IN PARTISAN POLITICAL CLUBS, OR
CANDIDATES FOR ANY PAID PUBLIC OFFICE; TAKING PART IN THE MANAGEMENT OR
AFFAIRS OF ANY POLITICAL PARTY'S PARTISAN POLITICAL CAMPAIGN; SERVING
AS DELEGATES OR ALTERNATES TO CAUCUSES OR CONVENTIONS OF POLITICAL
PARTIES; ADDRESSING OR TAKING AN ACTIVE PART IN PARTISAN POLITICAL
RALLIES OR MEETINGS; SOLICITING VOTES OR ASSISTING VOTERS AT THE POLLS
OR HELPING IN A PARTISAN EFFORT TO GET VOTERS TO THE POLLS;
PARTICIPATING IN THE DISTRIBUTION OF PARTISAN CAMPAIGN LITERATURE;
INITIATING OR CIRCULATING PARTISAN NOMINATING PETITIONS; OR RIDING IN
CARAVANS FOR ANY POLITICAL PARTY OR PARTISAN POLITICAL CANDIDATE. 

THESE PROSCRIPTIONS ARE TAKEN DIRECTLY FROM THE CONTESTED PARAGRAPHS
OF ^ 818, THE RULES OF THE STATE PERSONNEL BOARD AND ITS INTERPRETIVE
CIRCULAR, AND THE AUTHORITATIVE OPINIONS OF THE STATE ATTORNEY
GENERAL.  WITHOUT QUESTION, THE CONDUCT APPELLANTS HAVE BEEN CHARGED
WITH FALLS SQUARELY WITHIN THESE PROSCRIPTIONS. 

APPELLANTS ASSERT THAT ^ 818 GOES MUCH FARTHER THAN THESE
PROHIBITIONS.  ACCORDING TO APPELLANTS, THE STATUTE'S PROHIBITIONS ARE
NOT TIED TIGHTLY ENOUGH TO PARTISAN POLITICAL CONDUCT AND IMPERMISSIBLY
RELEGATE EMPLOYEES TO EXPRESSING THEIR POLITICAL VIEWS "PRIVATELY." 
THE STATE PERSONNEL BOARD, HOWEVER, HAS CONSTRUED ^ 818'S EXPLICIT
APPROVAL OF "PRIVATE" POLITICAL EXPRESSION TO INCLUDE VIRTUALLY ANY
EXPRESSION NOT WITHIN THE CONTEXT OF ACTIVE PARTISAN POLITICAL
CAMPAIGNING, /15/  AND THE STATE'S ATTORNEY GENERAL, IN PLAIN TERMS,
HAS INTERPRETED ^ 818 AS PROHIBITING "CLEARLY PARTISAN POLITICAL
ACTIVITY" ONLY.  /16/  SURELY A COURT CANNOT BE EXPECTED TO IGNORE
THESE AUTHORITATIVE PRONOUNCEMENTS IN DETERMINING THE BREADTH OF A
STATUTE.  LAW STUDENTS RESEARCH COUNCIL V. WADMOND, 401 U. S. 154, 162
163 (1971).  APPELLANTS FURTHER POINT TO THE BOARD'S INTERPRETIVE
RULES PURPORTING TO RESTRICT SUCH ALLEGEDLY PROTECTED ACTIVITIES AS THE
WEARING OF POLITICAL BUTTONS OR THE USE OF BUMPER STICKERS.  IT MAY BE
THAT SUCH RESTRICTIONS ARE IMPERMISSIBLE AND THAT ^ 818 MAY BE
SUSCEPTIBLE OF SOME OTHER IMPROPER APPLICATIONS.  BUT, AS PRESENTLY
CONSTRUED, WE DO NOT BELIEVE THAT ^ 818 MUST BE DISCARDED IN TOTO
BECAUSE SOME PERSONS' ARGUABLY PROTECTED CONDUCT MAY OR MAY NOT BE
CAUGHT OR CHILLED BY THE STATUTE.  SECTION 818 IS NOT SUBSTANTIALLY
OVERBROAD AND IS NOT, THEREFORE, UNCONSTITUTIONAL ON ITS FACE. 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  THE SECTION READS AS FOLLOWS: 

"(1) NO PERSON IN THE CLASSIFIED SERVICE SHALL BE APPOINTED TO, OR
DEMOTED OR DISMISSED FROM ANY POSITION IN THE CLASSIFIED SERVICE, OR IN
ANY WAY FAVORED OR DISCRIMINATED AGAINST WITH RESPECT TO EMPLOYMENT IN
THE CLASSIFIED SERVICE BECAUSE OF HIS POLITICAL OR RELIGIOUS OPINIONS
OR AFFILIATIONS, OR BECAUSE OF RACE, CREED, COLOR OR NATIONAL ORIGIN OR
BY REASON OF ANY PHYSICAL HANDICAP SO LONG AS THE PHYSICAL HANDICAP
DOES NOT PREVENT OR RENDER THE EMPLOYEE LESS ABLE TO DO THE WORK FOR
WHICH HE IS EMPLOYED. 

"(2) NO PERSON SHALL USE OR PROMISE TO USE, DIRECTLY OR INDIRECTLY,
ANY OFFICIAL AUTHORITY OR INFLUENCE, WHETHER POSSESSED OR ANTICIPATED,
TO SECURE OR ATTEMPT TO SECURE FOR ANY PERSON AN APPOINTMENT OR
ADVANTAGE IN APPOINTMENT TO A POSITION IN THE CLASSIFIED SERVICE, OR AN
INCREASE IN PAY OR OTHER ADVANTAGE IN EMPLOYMENT IN ANY SUCH POSITION,
FOR THE PURPOSE OF INFLUENCING THE VOTE OR POLITICAL ACTION OF ANY
PERSON, OR FOR CONSIDERATION; PROVIDED, HOWEVER, THAT LETTERS OF
INQUIRY, RECOMMENDATION AND REFERENCE BY PUBLIC EMPLOYEES OF PUBLIC
OFFICIALS SHALL NOT BE CONSIDERED OFFICIAL AUTHORITY OR INFLUENCE
UNLESS SUCH LETTER CONTAINS A THREAT, INTIMIDATION, IRRELEVANT,
DEROGATORY OR FALSE INFORMATION. 

"(3) NO PERSON SHALL MAKE ANY FALSE STATEMENT, CERTIFICATE, MARK,
RATING, OR REPORT WITH REGARD TO ANY TEST, CERTIFICATION OR APPOINTMENT
MADE UNDER ANY PROVISION OF THIS ACT OR IN ANY MANNER COMMIT ANY FRAUD
PREVENTING THE IMPARTIAL EXECUTION OF THIS ACT AND RULES MADE
HEREUNDER. 

"(4) NO EMPLOYEE OF THE DEPARTMENT, EXAMINER, OR OTHER PERSON SHALL
DEFEAT, DECEIVE, OR OBSTRUCT ANY PERSON IN HIS OR HER RIGHT TO
EXAMINATION, ELIGIBILITY, CERTIFICATION, OR APPOINTMENT UNDER THIS LAW,
OR FURNISH TO ANY PERSON ANY SPECIAL OR SECRET INFORMATION FOR THE
PURPOSE OF EFFECTING (SIC) THE RIGHTS OR PROSPECTS OF ANY PERSON WITH
RESPECT TO EMPLOYMENT IN THE CLASSIFIED SERVICE. 

"(5) NO PERSON SHALL, DIRECTLY OR INDIRECTLY, GIVE, RENDER, PAY,
OFFER, SOLICIT, OR ACCEPT ANY MONEY, SERVICE, OR OTHER VALUABLE
CONSIDERATION FOR OR ON ACCOUNT OF ANY APPOINTMENT, PROPOSED
APPOINTMENT, PROMOTION, OR PROPOSED PROMOTION TO, OR ANY ADVANTAGE IN,
A POSITION IN THE CLASSIFIED SERVICE. 

"(6) NO EMPLOYEE IN THE CLASSIFIED SERVICE, AND NO MEMBER OF THE
PERSONNEL BOARD SHALL, DIRECTLY OR INDIRECTLY, SOLICIT, RECEIVE, OR IN
ANY MANNER BE CONCERNED IN SOLICITING OR RECEIVING ANY ASSESSMENT,
SUBSCRIPTION OR CONTRIBUTION FOR ANY POLITICAL ORGANIZATION, CANDIDACY
OR OTHER POLITICAL PURPOSE; AND NO STATE OFFICER OR STATE EMPLOYEE IN
THE UNCLASSIFIED SERVICE SHALL SOLICIT OR RECEIVE ANY SUCH ASSESSMENT,
SUBSCRIPTION OR CONTRIBUTION FROM AN EMPLOYEE IN THE CLASSIFIED
SERVICE. 

"(7) NO EMPLOYEE IN THE CLASSIFIED SERVICE SHALL BE A MEMBER OF ANY
NATIONAL, STATE OR LOCAL COMMITTEE OF A POLITICAL PARTY, OR AN OFFICER
OR MEMBER OF A COMMITTEE OF A PARTISAN POLITICAL CLUB, OR A CANDIDATE
FOR NOMINATION OR ELECTION TO ANY PAID PUBLIC OFFICE, OR SHALL TAKE
PART IN THE MANAGEMENT OR AFFAIRS OF ANY POLITICAL PARTY OR IN ANY
POLITICAL CAMPAIGN, EXCEPT TO EXERCISE HIS RIGHT AS A CITIZEN PRIVATELY
TO EXPRESS HIS OPINION AND TO CAST HIS VOTE. 

"(8) UPON A SHOWING OF SUBSTANTIAL EVIDENCE BY THE PERSONNEL
DIRECTOR THAT ANY OFFICER OR EMPLOYEE IN THE STATE CLASSIFIED SERVICE,
HAS KNOWINGLY VIOLATED ANY OF THE PROVISIONS OF THIS SECTION, THE STATE
PERSONNEL BOARD SHALL NOTIFY THE OFFICER OR EMPLOYEE SO CHARGED AND THE
APPOINTING AUTHORITY UNDER WHOSE JURISDICTION THE OFFICER OR EMPLOYEE
SERVES.  IF THE OFFICER OR EMPLOYEE SO DESIRES, THE STATE PERSONNEL
BOARD SHALL HOLD A PUBLIC HEARING, OR SHALL AUTHORIZE THE PERSONNEL
DIRECTOR TO HOLD A PUBLIC HEARING, AND SUBMIT A TRANSCRIPT THEREOF,
TOGETHER WITH A RECOMMENDATION, TO THE STATE PERSONNEL BOARD.  RELEVANT
WITNESSES SHALL BE ALLOWED TO BE PRESENT AND TESTIFY AT SUCH HEARINGS. 
IF THE OFFICER OR EMPLOYEE SHALL BE FOUND GUILTY BY THE STATE PERSONNEL
BOARD OF THE VIOLATION OF ANY PROVISION OF THIS SECTION, THE BOARD
SHALL DIRECT THE APPOINTING AUTHORITY TO DISMISS SUCH OFFICER OR
EMPLOYEE; AND THE APPOINTING AUTHORITY SO DIRECTED SHALL COMPLY." 
OKLA. STAT. ANN., TIT. 74, ^ 818 (1965) (PARAGRAPH ENUMERATION ADDED). 

/2/  SEE ALA. CODE, TIT. 55, ^ 317 (1958); ALASKA STAT. ^ 39.25.160
(1962); ARIZ. REV. STAT. ANN. ^ 16 - 1301 (1956), MERIT SYSTEM
REGULATIONS AND MERIT SYSTEM BOARD PROCEDURES ^ 1511 (1966); ARK. STAT.
ANN. ^ 83 - 119 (1947); CAL. GOVT. CODE ^^ 19730 - 19735 (1963 AND
SUPP. 1973); COLO. REV. STAT. ANN. ^ 26 - 5 - 31 (1963), CIVIL SERVICE
COMM'N RULES AND REGULATIONS, ART. XIV, ^ 1; CONN. GEN. STAT. REV. ^ 5
266 (SUPP. 1969), REGULATIONS OF THE CIVIL SERVICE COMM'N CONCERNING
EMPLOYEES IN THE STATE CLASSIFIED SERVICE ^ 14 - 13; DEL. CODE ANN.,
TIT. 31, ^ 110 (1953); FLA. STAT. ANN. ^ 110.092 (1973); GA. MERIT
SYSTEM OF PERSONNEL ADMINISTRATION, RULES AND REGULATIONS, RULE 3,
PARAS. 3.101 - 3.106; HAWAII REV. STAT. ^^ 76 - 1, 76 - 91 (1968);
IDAHO CODE ^ 67 - 5311 (1973); ILL. REV. STAT., C. 24 1/2, ^ 38T
(1971); IND. ANN. STAT. ^ 16 - 1341 (1962); IOWA CODE ANN. ^ 19A.18
(SUPP. 1973); KAN. STAT. ANN. ^ 75 - 2953 (1969); KY. REV. STAT. ANN. ^
18.310 (1971); LA. CONST., ART. 14, ^ 15 (N) (1955); ME. REV. STAT.
ANN., TIT. 5, ^ 679 (1964); MD. MERIT SYSTEM RULES FOR GRANT-IN-AID
AGENCIES ^ 602.2; MASS. GEN. LAWS ANN., C. 55, ^^ 1 - 15, C. 56, ^^ 35
36 (1958 AND SUPP. 1973); MICH. RULES OF CIVIL SERVICE COMM'N ^ 7
(1965); MINN. STAT. ANN. ^ 43.28 (1970); MISS.  MERIT SYSTEM RULES,
DEPT. OF PUBLIC WELFARE, ART. XVI (1965); MO. ANN. STAT. ^ 36.150
(1969); MONT. REV. CODES ANN. ^^ 94 - 1439, 94 - 1440, 94 - 1447, 94 -
1476 (1947); NEB. REV. STAT. ^ 81 - 1315 (1971), NEB. JOINT MERIT
SYSTEM REGULATIONS FOR A MERIT SYSTEM, ART. XVI (1963); NEV. RULES FOR
STATE PERSONNEL ADMINISTRATION, RULES XVI, XIII (1963); N. H. REV.
STAT. ANN. ^^ 98:18 98:19 (1964); N. J. STAT. ANN. ^ 11:17 - 2 (1960);
N. M. STAT. ANN. ^ 5 - 4 - 42 (1953 AND SUPP. 1971); N. Y. CIV. SERV.
LAW ^ 107 (1973); N. C. GEN. STAT. ^^ 126 - 13 TO 126 - 15 (SUPP.
1971); RULES AND REGULATIONS OF N. D. MERIT SYSTEMS, ART. XVI; OHIO
REV. CODE ANN. ^^ 143.41, 143.44, 143.45, 143.46 (1969); ORE.  REV. 
STAT. ^ 260.432 (1971); PA. STAT. ANN., TIT. 71, ^ 741.904 (SUPP. 1973
1974); R. I. GEN. LAWS ANN. ^^ 36 - 4 - 51 TO 36 - 4 - 53 (1969); S.
C. MERIT SYSTEM RULES AND REGULATIONS, CIVIL DEFENSE COUNCIL, ART. XIV,
^ 1; S. D. MERIT SYSTEM REGULATIONS, ART. XVI, ^ 1 (1963); TENN. CODE
ANN. ^ 8 - 3121 (SUPP. 1971), TENN. RULES AND REGULATIONS FOR
ADMINISTERING THE CIVIL SERVICE ACT ^ 2.3 (1963); TEX. PENAL CODE,
ARTS. 195 - 197 (1952); UTAH CODE ANN. ^ 67 - 13 - 13 (1968); VT. RULES
AND REGULATIONS FOR PERSONNEL ADMINISTRATION ^ 3.02; VA. SUPP. TO RULES
FOR THE ADMINISTRATION OF THE VA. PERSONNEL ACT, RULE 15.14 (A); WASH.
REV. CODE ANN. ^ 41 - 06 - 250 (1969); W. VA. CODE ANN. ^ 29 - 6 - 19
(1971); WIS. STAT. ANN. ^ 16.30 (1972); WYO. REV. RULES AND
REGULATIONS, RULE XIII (1960).  (FOR COMPILATION OF STATE RULES AND
REGULATIONS, SEE 2 COMMISSION ON POLITICAL ACTIVITY OF GOVERNMENT
PERSONNEL, RESEARCH 122 ET SEQ. (1967).) 

/3/  5 U.S.C. ^ 7324 (A).  SEE GENERALLY CSC V. LETTER CARRIERS,
ANTE, P. 548. 

/4/  BRIEF FOR APPELLANTS 22. 

/5/  APPELLANTS ALSO CLAIM THAT ^ 818 VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT BY SINGLING OUR CLASSIFED SERVICE
EMPLOYEES FOR RESTRICTIONS ON PARTISAN POLITICAL EXPRESSION WHILE
LEAVING UNCLASSIFIED PERSONNEL FREE FROM SUCH RESTRICTIONS.  THE
CONTENTION IS SOMEWHAT ODD IN THE CONTEXT OF APPELLANTS' PRINCIPAL
CLAIM, WHICH IS THAT ^ 818 REACHES TOO FAR RATHER THAN NOT FAR ENOUGH. 
IN ANY EVENT, THE LEGISLATURE MUST HAVE SOME LEEWAY IN DETERMINING
WHICH OF ITS EMPLOYMENT POSITIONS REQUIRE RESTRICTIONS ON PARTISAN
POLITICAL ACTIVITIES AND WHICH MAY BE LEFT UNREGULATED.  SEE MC GOWAN
V. MARYLAND, 366 U. S. 420 (1961).  AND A STATE CAN HARDLY BE FAULTED
FOR ATTEMPTING TO LIMIT THE POSITIONS UPON WHICH SUCH RESTRICTIONS ARE
PLACED. 

/6/  ONLY THE SIXTH AND SEVENTH PARAGRAPHS OF ^ 818 ARE AT ISSUE IN
THIS LAWSUIT.  HEREINAFTER, REFERENCES TO ^ 818 SHOULD BE UNDERSTOOD TO
BE LIMITED TO THOSE PARAGRAPHS, UNLESS WE INDICATE TO THE CONTRARY. 

/7/  IT IS SIGNIFICANT IN THIS RESPECT TO NOTE THAT ^ 818 DOES NOT
CREATE A "REGULATORY MAZE" WHERE THOSE UNCERTAIN MAY BECOME HOPELESSLY
LOST.  SEE KEYISHIAN V. BOARD OF REGENTS, 385 U. S. 589, 604 (1967). 
RATHER, THE STATE PERSONNEL BOARD IS AVAILABLE TO RULE IN ADVANCE ON
THE PERMISSIBILITY OF PARTICULAR CONDUCT UNDER THE EXPLICIT STANDARDS
SET OUT IN AND UNDER ^ 818.  SEE TR. OF REC. 237.  SEE CSC V. LETTER
CARRIERS, ANTE, AT 580. 

/8/  TR. OF ORAL ARG. 48 - 49. 

/9/  THE DISTRICT COURT INITIALLY REQUESTED THE PARTIES TO BRIEF THE
QUESTION WHETHER APPELLANTS WERE REQUIRED TO COMPLETE THE BOARD'S
PROCEEDINGS PRIOR TO BRINGING THEIR ACTION UNDER 42 U.S.C. ^ 1983.  THE
BOARD, HOWEVER, ON APPELLANTS' APPLICATION, ORDERED ITS PROCEEDINGS
STAYED PENDING ADJUDICATION OF THE FEDERAL CONSTITUTIONAL QUESTIONS IN
THE DISTRICT COURT.  WHEN ADVISED OF THE BOARD'S DECISION, AND IN THE
ABSENCE OF ANY OBJECTIONS FROM APPELLEES, THE DISTRICT COURT
PROCEEDED.  ON THIS RECORD, WE NEED NOT CONSIDER WHETHER APPELLANTS
WOULD HAVE BEEN REQUIRED TO PROCEED TO HEARING BEFORE THE BOARD PRIOR
TO PURSUING THEIR ^ 1983 ACTION.  CF. GIBSON V. BERRYHILL, 411 U. S.
564, 574 - 575 (1973); H. HART & H. WECHSLER, THE FEDERAL COURTS AND
THE FEDERAL SYSTEM 983 - 985 (2D ED. 1973). 

/10/  THE STATE PERSONNEL BOARD HAS SO INTERPRETED ^ 818.  SEE MERIT
SYSTEM OF PERSONNEL ADMINISTRATION RULES ^ 1641; THE BOARD'S OFFICIAL
CIRCULAR, TR. OF REC. 237. 

/11/  TR. OF ORAL ARG. 48 - 49. 

/12/  SEE GENERALLY HART & WECHSLER, SUPRA, AT 184 - 214; SEDLER,
STANDING TO ASSERT CONSTITUTIONAL JUS TERTII IN THE SUPREME COURT, 71
YALE L. J. 599 (1962); NOTE, THE FIRST AMENDMENT OVERBREADTH DOCTRINE,
83 HARV. L. REV. 844 (1970). 

/13/  IN BOTH EDWARDS AND COX, AT THE VERY END OF THE DISCUSSIONS,
THE COURT ALSO NOTED THAT THE STATUTES WOULD 0E FACIALLY
UNCONSTITUTIONAL FOR OVERBREADTH.  SEE 372 U.S. 229, 238; 379 U. S.
536, 551 - 552.  IN COX, THE COURT TERMED THIS DISCUSSION AN
"ADDITIONAL REASON" FOR ITS REVERSAL.  379 U. S., AT 551.  THESE
"ADDITIONAL" HOLDINGS WERE UNNECESSARY TO THE DISPOSITIONS OF THE
CASES, SO MUCH SO THAT ONLY ONE MEMBER OF THIS COURT RELIED ON COX'S
"ADDITIONAL" HOLDING IN BROWN V. LOUISIANA, 383 U. S. 131 (1966), WHICH
INVOLVED CONVICTIONS UNDER THE VERY SAME BREACH-OF-THE-PEACE STATUTE. 
SEE ID., AT 143 - 150 (BRENNAN, J., CONCURRING IN JUDGMENT). 

/14/  MY BROTHER BRENNAN ASSERTS THAT IN SOME SENSE A REQUIREMENT OF
SUBSTANTIAL OVERBREADTH IS ALREADY IMPLICIT IN THE DOCTRINE.  POST, AT
630.  THIS IS A WELCOME OBSERVATION.  IT PERHAPS REDUCES OUR
DIFFERENCES TO OUR DIFFERING VIEWS OF WHETHER THE OKLAHOMA STATUTE IS
SUBSTANTIALLY OVERBROAD.  THE DISSENT ALSO INSISTS THAT COATES V. CITY
OF CINCINNATI, 402 U. S. 611 (1971), MUST BE TAKEN AS OVERRULED.  BUT
WE ARE UNPERSUADED THAT COATES STANDS AS A BARRIER TO A RULE THAT WOULD
INVALIDATE STATUTES FOR OVERBREADTH ONLY WHEN THE FLAW IS A SUBSTANTIAL
CONCERN IN THE CONTEXT OF THE STATUTE AS A WHOLE.  OUR JUDGMENT IS THAT
THE OKLAHOMA STATUTE, WHEN AUTHORITATIVE ADMINISTRATIVE CONSTRUCTIONS
ARE ACCEPTED, IS NOT INVALID UNDER SUCH A RULE. 

/15/  THE BOARD'S INTERPRETIVE CIRCULAR STATES (TR. OF REC. 237): 

"THE RIGHT TO EXPRESS POLITICAL OPINIONS IS RESERVED TO ALL SUCH
PERSONS.  NOTE:  THIS RESERVATION IS SUBJECT TO EHT PROHIBITION THAT
SUCH PERSONS MAY NOT TAKE ACTIVE PART IN POLITICAL MANAGEMENT OR IN
POLITICAL CAMPAIGNS." 

/16/  OP. ATTY. GEN. OKLA., NO. 68 - 356, P. 4 (1968).  THE DISTRICT
COURT SIMILARLY INTERPRETED ^ 818 AS INTENDING TO PERMIT PUBLIC
EXPRESSIONS OF POLITICAL OPINION "SO LONG AS THE EMPLOYEE DOES NOT
CHANNEL HIS ACTIVITY TOWARDS PARTY SUCCESS."  338 F. SUPP. 711, 716. 
ALTHOUGH THE COURT'S INTERPRETATION IS OBVIOUSLY NOT BINDING ON STATE
AUTHORITIES, SEE UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U. S.
363, 369 (1971), A FEDERAL COURT MUST DETERMINE WHAT A STATE STATUTE
MEANS BEFORE IT CAN JUDGE ITS FACIAL CONSTITUTIONALITY. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS CASE IN MY VIEW SHOULD BE GOVERNED BY SOME OF THE
CONSIDERATIONS I SET FORTH IN MY DISSENT IN THE LETTER CARRIERS CASE,
ANTE, P. 595. 


     "NO EMPLOYEE IN THE CLASSIFIED SERVICE SHALL BE A MEMBER OF
ANY

  NATIONAL, STATE OR LOCAL COMMITTEE OF A POLITICAL PARTY, OR AN

  OFFICER OR MEMBER OF A COMMITTEE OF A PARTISAN POLITICAL CLUB, OR

  A CANDIDATE FOR NOMINATION OR ELECTION TO ANY PAID PUBLIC OFFICE,

  OR SHALL TAKE PART IN THE MANAGEMENT OR AFFAIRS OF ANY POLITICAL

  PARTY OR IN ANY POLITICAL CAMPAIGN, EXCEPT TO EXERCISE HIS RIGHT

  AS A CITIZEN PRIVATELY TO EXPRESS HIS OPINION AND TO CAST HIS

  VOTE."  (EMPHASIS SUPPLIED.) 

IF THIS WERE A REGULATION OF BUSINESS OR COMMERCIAL MATTERS THE
COURT'S CITATION OF CONNALY V. GENERAL CONSTRUCTION CO., 269 U. S. 385,
391, WOULD BE APT.  CONNALLY WAS A CASE INVOLVING A STATE LAW MAKING IT
A CRIME FOR CONTRACTORS WITH THE STATE TO PAY THEIR WORKMEN LESS THAT
THE "CURRENT RATE OF PER DIEM WAGES IN THE LOCALITY WHERE THE WORK IS
PERFORMED."  THE COURT HELD THE ACT TOO VAGUE TO PASS MUSTER AS A PENAL
MEASURE.  I WOULD CONCEDE THAT BY THE CONNALLY TEST - 818, PAR. 7,
WOULD NOT FALL.  FOR THE PROVISION IN QUESTION BARS AN EMPLOYEE FROM
TAKING "PART IN THE MANAGEMENT OR AFFAIRS OF ANY POLITICAL PARTY OR IN
ANY POLITICAL CAMPAIGN, EXCEPT TO EXERCISE HIS RIGHT AS A CITIZEN
PRIVATELY TO EXPRESS HIS OPINION AND TO CAST HIS VOTE." 

BUT THE PROBLEM HERE CONCERNS NOT COMMERCE BUT THE FIRST AMENDMENT. 
THE FIRST AMENDMENT GOES FURTHER THAN PROTECTING A PERSON FOR
"PRIVATELY" EXPRESSING HIS OPINION.  PUBLIC AS WELL AS PRIVATE
DISCOURSE IS INCLUDED; AND THE EMPHASIS IN ^ 818, PAR. 7, THAT PRIVATE
EXPRESSION OF VIEWS IS TOLERATED EMPHASIZES THAT PUBLIC EXPRESSION IS
NOT TOLERATED. 

I DO NOT SEE HOW GOVERNMENT CAN DEPRIVE ITS EMPLOYEES OF THE RIGHT
TO SPEAK, WRITE, ASSEMBLE, OR PETITION ONCE THE OFFICE IS CLOSED AND
THE EMPLOYEE IS HOME ON HIS OWN.  PUBLIC DISCUSSION OF LOCAL, STATE,
NATIONAL, AND INTERNATIONAL AFFAIRS IS GRIST FOR THE FIRST AMENDMENT
MILL.  OUR DECISIONS EMPHASIZE THAT FREE DEBATE, UNINHIBITED
DISCUSSION, ROBUST AND WIDE-OPEN CONTROVERSY, A MULTITUDE OF TONGUES,
THE PRESSURE OF IDEAS CLEAR ACROSS THE SPECTRUM SET THE PATTERN OF
FIRST AMENDMENT FREEDOMS.  WE EMPHASIZED IN NEW YORK TIMES CO. V.
SULLIVAN, 376 U. S. 254, 272, THAT NEITHER INJURY "TO OFFICIAL
REPUTATION" NOR "FACTUAL ERROR" JUSTIFIED REPRESSION OF SPEECH, THAT
THE DEMANDS OF FEE SPEECH LOWERED THE BARRIERS TO LIBEL ACTIONS FOR
CHARGES OF OFFICIAL MISCONDUCT OR IMPROPRIETIES. 

FIRST AMENDMENT RIGHTS ARE INDEED FUNDAMENTAL, FOR "WE THE PEOPLE"
ARE THE SOVEREIGNS, NOT THOSE WHO SIT IN THE SEATS OF THE MIGHTY.  IT
IS THE VOICE OF THE PEOPLE WHO ULTIMATELY HAVE THE SAY; ONCE WE FENCE
OFF A GROUP, AND BAR THEM FROM PUBLIC DIALOGUE, THE PUBLIC INTEREST IS
THE LOSER.  THOSE WHO ARE TIED INTO THE FEDERAL REGIME EITHER BY DIRECT
EMPLOYMENT OR BY STATE PROJECTS FEDERALLY FINANCED NOW AMOUNT TO ABOUT
FIVE AND A HALF MILLION.  THE NUMBER INCLUDED, IF ALL STATE EMPLOYEES
ARE ADDED, IS ESTIMATED /1/  AT OVER 13 MILLION. 

THESE PEOPLE ARE SCRUBWOMEN, JANITORS, TYPISTS, FILE CLERKS,
CHAUFFEURS, MESSENGERS, NURSES, ORDERLIES, POLICEMEN AND WOMEN, NIGHT
WATCHMEN, TELEPHONE AND ELEVATOR OPERATORS, AS WELL AS THOSE DOING SOME
KIND OF ADMINISTRATIVE, EXECUTIVE, OR JUDICIAL WORK.  THERE ARE
ACTIVITIES THAT DO NOT TOUCH ON FIRST AMENDMENT RIGHTS WHICH CAN BE
BANNED.  THERE ARE ILLEGAL ELECTION PROCEDURES SUCH AS WIRETAPPING,
BURGLARY, AND MAILING POLITICALLY SALACIOUS LETTERS THAT ARE BEYOND THE
PALE.  THE FIRST AMENDMENT, HOWEVER, CONCERNS A VARIETY OF ACTIVITIES
THAT ARE DEEP IN OUR TRADITION:  FORMING AD HOC COMMITTEES TO LOBBY
MEASURES THROUGH A COUNCIL OR OTHER LEGISLATIVE BODY; ORGANIZING
PROTECTIVE ASSOCIATIONS TO PROTECT LAKES, RIVERS, ISLANDS OF
WILDERNESS, OR A NEIGHBORHOOD; PREPARING AND CIRCULATING PETITIONS FOR
SIGNATURES IN SUPPORT OF LEGISLATIVE REFORMS; MAKING PROTEST MARCHES OR
PICKETING THE STATEHOUSE FOR A PUBLIC CAUSE--THESE AS WELL AS DEBATE,
PASSING OUT CAMPAIGN LITERATURE, WATCHING AT THE POLLS, MAKING RADIO
AND TV APPEARANCES, ADDRESSING RALLIES IN PARKS OR AUDITORIUMS, ARE ALL
PART OF THE INTENSE PROCESS OF MOBILIZING "WE THE PEOPLE" FOR OR
AGAINST SPECIFIC MEASURES, SHAPING PUBLIC OPINION, GETTING X RATHER
THAN Y ELECTED, AND SO ON. 

A BUREAUCRACY THAT IS ALERT, VIGILANT, AND ALIVE IS MORE EFFICIENT
THAN ONE THAT IS QUIET AND SUBMISSIVE.  IS IS THE FIRST AMENDMENT THAT
MAKES IT ALERT, VIGILANT, AND ALIVE.  IT IS SUPPRESSION OF FIRST
AMENDMENT RIGHTS THAT CREATES FACELESS, NAMELESS BUREAUCRATS WHO ARE
INERT IN THEIR LOCALITIES AND SUBMISSIVE TO SOME MASTER'S VOICE.  HIGH
VALUES RIDE ON TODAYS'S DECISION IN THIS CASE AND IN LETTER CARRIERS. 
I WOULD NOT ALLOW THE BUREAUCRACY IN THE STATE OR FEDERAL GOVERNMENT TO
BE DEPRIVED OF FIRST AMENDMENT RIGHTS.  THEIR EXERCISE CERTAINLY IS AS
IMPORTANT IN THE PUBLIC SECTOR AS IT IS IN THE PRIVATE SECTOR.  THOSE
WHO WORK FOR GOVERNMENT HAVE NO WATERED-DOWN CONSTITUTIONAL RIGHTS.  SO
FAR AS THE FIRST AMENDMENT GOES, I WOULD KEEP THEM ON THE SAME PLANE AS
ALL OTHER PEOPLE. 

I WOULD REVERSE THE JUDGMENT BELOW. 

/1/  STATISTICAL ABSTRACT OF THE UNITED STATES 1972, PP. 403, 431. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

WHATEVER ONE'S VIEW OF THE DESIRABILITY OR CONSTITUTIONALITY OF
LEGISLATIVE EFFORTS TO RESTRICT THE POLITICAL ACTIVITIES OF GOVERNMENT
EMPLOYEES, ONE MUST REGARD TODAY'S DECISION UPHOLDING ^ 818 OF THE
OKLAHOMA MERIT SYSTEM OF PERSONNEL ADMINISTRATION ACT /1/  AS A WHOLLY
RETREAT FROM FUNDAMENTAL AND PREVIOUSLY WELLESTABLISHED FIRST AND
FOURTEENTH AMENDMENT PRINCIPLES.  FOR THE PURPOSES OF THIS DECISION,
THE COURT ASSUMES--PERHAPS EVEN CONCEDES--THAT THE STATUTE AT ISSUE
HERE SWEEPS TOO BROADLY, BARRING SPEECH AND CONDUCT THAT ARE
CONSTITUTIONALLY PROTECTED EVEN UNDER THE STANDARDS ANNOUNCED IN UNITED
PUBLIC WORKERS V. MITCHELL, 330 U. S. 75 (1947), AND REITERATED TODAY
IN CSC V. LETTER CARRIERS, ANTE, P. 548.  NEVERTHELESS, THE COURT
REJECTS APPELLANTS' CONTENTION THAT THE STATUTE IS UNCONSTITUTIONAL ON
ITS FACE, REASONING THAT "WHERE CONDUCT AND NOT MERELY SPEECH IS
INVOLVED, . . . THE OVERBREADTH OF A STATUTE MUST NOT ONLY BE REAL, BUT
SUBSTANTIAL AS WELL, JUDGED IN RELATION TO THE STATUTE'S PLAINLY
LEGITIMATE SWEEP.  IT IS OUR VIEW THAT ^ 818 IS NOT SUBSTANTIALLY
OVERBROAD AND THAT WHATEVER OVERBREADTH MAY EXIST SHOULD BE CURED
THROUGH CASE-BY-CASE ANALYSIS OF THE FACT SITUATIONS TO WHICH ITS
SANCTIONS, ASSERTEDLY, MAY NOT BE APPLIED."  ANTE, AT 615 - 616.  THAT
CONCLUSION FINDS NO SUPPORT IN PREVIOUS DECISIONS OF THIS COURT, AND IT
EFFECTIVELY OVERRULES OUR DECISION JUST TWO TERMS AGO IN COATES V. CITY
OF CINCINNATI, 402 U. S. 611 (1971).  I REMAIN CONVINCED THAT COATES
WAS CORRECTLY DECIDED, AND I MUST THEREFORE RESPECTFULLY DISSENT. 
AS EMPLOYEES OF THE CORPORATION COMMISSION OF THE STATE OF OKLAHOMA, A
STATE AGENCY, APPELLANTS ARE SUBJECT TO THE PROVISIONS OF THE STATE'S
MERIT ACT.  THAT ACT DESIGNATES CERTAIN STATE AGENCIES, INCLUDING THE
CORPORATION COMMISSION, WHICH ARE BARRED FROM DISMISSING OR SUSPENDING
CLASSIFIED EMPLOYEES FOR POLITICAL REASONS.  AT THE SAME TIME, THE ACT
AUTHORIZES THE STATE PERSONNEL BOARD TO DISMISS OR SUSPEND ANY
CLASSIFIED EMPLOYEE WHO ENGAGES IN CERTAIN PROHIBITED POLITICAL
ACTIVITY.  ALTHOUGH SPECIFICALLY PROTECTING AN EMPLOYEE'S RIGHT "AS A
CITIZEN PRIVATELY TO EXPRESS HIS OPINION AND TO CAST HIS VOTE, THE ACT
BARS (1) FUND-RAISING FOR ANY POLITICAL PURPOSE; (2) MEMBERSHIP IN ANY
NATIONAL, STATE, OR LOCAL COMMITTEE OF A POLITICAL PARTY OR A POLITICAL
CLUB; (3) CANDIDACY FOR ANY PUBLIC OFFICE; AND (4) PARTICIPATION IN THE
"MANAGEMENT OR AFFAIRS OF ANY POLITICAL PARTY OR IN ANY POLITICAL
CAMPAIGN." 

AS A RESULT OF APPELLANTS' ALLEGED PARTICIPATION IN THE 1970 RE
ELECTION CAMPAIGN OF CORPORATION COMMISSIONER RAY C. JONES, THE STATE
PERSONNEL BOARD FORMALLY CHARGED APPELLANTS WITH VIOLATIONS OF THE
ACT.  APPELLANTS THEN BROUGHT THIS ACTION UNDER 42 U.S.C. ^ 1983 BEFORE
A THREE-JUDGE FEDERAL DISTRICT COURT IN THE WESTERN DISTRICT OF
OKLAHOMA, SEEKING AN INJUNCTION AGAINST ENFORCEMENT OF THE ACT.  THE
DISTRICT COURT REJECTED APPELLANTS' CONTENTIONS THAT THE ACT IS
UNCONSTITUTIONALLY VAGUE AND OVERBROAD, AND THE COURT TODAY AFFIRMS
THAT DETERMINATION. 

APPELLANTS' CLAIMS ARE, OF COURSE, SIMILAR TO THE VAGUENESS AND
OVERBREADTH CONTENTIONS REJECTED BY THE COURT TODAY IN UPHOLDING ^ 9
(A) OF THE HATCH ACT, 5 U.S.C. ^ 7324 (A) (2).  SEE LETTER CARRIERS,
SUPRA.  BUT THAT DECISION, WHETHER OR NOT CORRECT, IS BY NO MEANS
CONTROLLING ON THE QUESTIONS NOW BEFORE US.  CERTAIN FUNDAMENTAL
DIFFERENCES BETWEEN THE HATCH ACT AND THE OKLAHOMA MERIT ACT SHOULD, AT
THE OUTSET, BE MADE CLEAR. 

EMPLOYEE MAY NOT "(1) USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE
PURPOSE OF INTERFERING WITH OR AFFECTING THE RESULT OF AN ELECTION; OR
(2) TAKE AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL
CAMPAIGNS."  ALTHOUGH RECOGNIZING THAT THE MEANING OF THE ACT'S
CRITICAL PHRASE, "AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN
POLITICAL CAMPAIGNS," IS HARDLY FREE FROM AMBIGUITY, THE COURT
CONCLUDED THAT THE TERMS COULD BE DEFINED BY REFERENCE TO A COMPLEX
NETWORK OF CIVIL SERVICE COMMISSION REGULATIONS DEVELOPED OVER MANY
YEARS AND COMPREHENSIVELY RESTATED IN 1970.  SEE 5 CFR PT. 733.  THOSE
REGULATIONS MAKE CLEAR THAT AMONG THE RIGHTS RETAINED BY A FEDERAL
EMPLOYEE, NOTWITHSTANDING THE ARGUABLY CONTRARY LANGUAGE OF THE
STATUTE, ARE THE RIGHTS TO "(EXPRESS HIS OPINION AS AN INDIVIDUAL
PRIVATELY AND PUBLICLY ON POLITICAL SUBJECTS AND CANDIDATES"; TO
"(DISPLAY A POLITICAL PICTURE, STICKER, BADGE, OR BUTTON"; TO "(BE A
MEMBER OF A POLITICAL PARTY OR OTHER POLITICAL ORGANIZATION . . . ."' 
AND TO "(MAKE A FINANCIAL CONTRIBUTION TO A POLITICAL PARTY OR
ORGANIZATION."  5 CFR ^ 733.111. 

BY CONTRAST, THE CRITICAL PHRASE OF THE OKLAHOMA ACT--NO EMPLOYEE
SHALL "TAKE PART IN THE MANAGEMENT OR AFFAIRS OF ANY POLITICAL PARTY OR
IN ANY POLITICAL CAMPAIGN"--IS LEFT ALMOST WHOLLY UNDEFINED.  WHILE THE
ACT DOES SPECIFICALLY DECLARE THAT EMPLOYEES HAVE THE RIGHT TO EXPRESS
THEIR VIEWS "PRIVATELY," IT NOWHERE DEFINES THE TERMS "TAKE PART" OR
"MANAGEMENT" OR "AFFAIRS."  THE RESERVATION OF THE RIGHT TO EXPRESS
ONE'S VIEWS IN PRIVATE COULD, MOREOVER, BE THOUGHT TO MEAN THAT ANY
PUBLIC EXPRESSION OF VIEWS IS FORBIDDEN.  OF COURSE, THE OKLAHOMA ACT
CAN, LIKE ITS FEDERAL COUNTERPART, BE VIEWED IN CONJUNCTION WITH THE
APPLICABLE ADMINISTRATIVE REGULATIONS.  BUT IN MARKED CONTRAST WITH THE
ELABORATE SET OF REGULATIONS PURPORTING TO DEFINE THE PROHIBITIONS OF
THE HATCH ACT, THE PERTINENT REGULATIONS OF THE STATE PERSONNEL BOARD
ARE A SCANT FIVE RULES THAT SHED NO LIGHT AT ALL ON THE INTENDED REACH
OF THE STATUTE.  TWO OF THOSE RULES MERELY RECITE THE LANGUAGE OF THE
ACT.  /2/  A THIRD OFFERS NO MORE SPECIFIC GUIDANCE THAN THE GENERAL
EXHORTATION THAT A CLASSIFIED EMPLOYEE SHALL "PURSUE THE COMMON GOOD,
AND, NOT ONLY BE IMPARTIAL, BUT SO ACT AS NEITHER TO ENDANGER HIS
IMPARTIALITY NOR TO GIVE OCCASION FOR DISTRUST OF HIS IMPARTIALITY." 
/3/  A FOURTH PROVIDES THAT A CLASSIFIED EMPLOYEE MUST RESIGN HIS
POSITION "PRIOR TO FILING AS A CANDIDATE FOR PUBLIC OFFICE, SEEKING OR
ACCEPTING NOMINATION FOR ELECTION OR APPOINTMENT AS AN OFFICIAL OF A
POLITICAL PARTY"--AGAIN, MERELY TRACKING THE LANGUAGE OF THE ACT.  /4/
THE FIFTH, FAR FROM CLARIFYING OR LIMITING THE SCOPE OF THE ACT,
PROVIDES THE MAJOR THRUST TO APPELLANTS' OVERBREADTH CONTENTION.  THE
RULE DELCARES THAT "(AN EMPLOYEE IN THE CLASSIFIED SERVICE MAY NOT WEAR
A POLITICAL BADGE, BUTTON, OR SIMILAR PARTISAN EMBLEM, NOR MAY SUCH
EMPLOYEE DISPLAY A PARTISAN POLITICAL STICKER OR SIGN ON AN AUTOMOBILE
OPERATED BY HIM OR UNDER HIS CONTROL."  /5/  EVEN THE COURT CONCEDES
THAT A BAN ON THE WEARING OF BUTTONS OR THE DISPLAY OF BUMPER STICKERS
MAY BE "IMPERMISSIBLE."  ANTE, AT 618. 

IT IS POSSIBLE, OF COURSE, THAT THE INHERENT AMBIGUITY OF THE
OKLAHOMA STATUTE MIGHT BE CURED BY JUDICIAL CONSTRUCTION OF ITS TERMS. 
BUT THE OKLAHOMA SUPREME COURT HAS NEVER ATTEMPTED TO CONSTRUE THE ACT
OR NARROW ITS APPARENT REACH.  PLAINLY, THIS COURT CANNOT UNDERTAKE
THAT TASK.  GOODING V. WILSON, 405 U. S. 518, 520 (1972); UNITED STATES
V. THIRTY-SEVEN PHOTOGRAPHS, 402 U. S. 363, 369 (1971).  /6/  I MUST
ASSUME, THEREFORE, THAT THE ACT, SUBJECT TO WHATEVER GLOSS IS PROVIDED
BY THE ADMINISTRATIVE REGULATIONS, /7/  IS CAPABLE OF APPLICATIONS THAT
WOULD PROHIBIT SPEECH AND CONDUCT CLEARLY PROTECTED BY THE FIRST
AMENDMENT.  EVEN ON THE ASSUMPTION THAT THE STATUTE'S REGULATORY AIM IS
PERMISSIBLE, THE MANNER IN WHICH STATE POWER IS EXERCISED IS ONE THAT
UNDULY INFRINGES PROTECTED FREEDOMS.  SHELTON V. TUCKER, 364 U. S. 479,
489 (1960); CANTWELL V. CONNECTICUT, 310 U. S. 296, 304 (1940).  THE
STATE HAS FAILED, IN OTHER WORDS, TO PROVIDE THE NECESSARY "SENSITIVE
TOOLS" TO CARRY OUT THE "SEPARATION OF LIGITIMATE FROM ILLEGITIMATE
SPEECH."  SPEISER V. RANDALL, 357 U. S. 513, 525 (1958).  SEE NAACP V.
BUTTON, 371 U. S. 415, 433 (1963). 

ALTHOUGH THE COURT DOES NOT EXPRESSLY HOLD THAT THE STATUTE IS VAGUE
AND OVERBROAD, IT DOES ASSUME NOT ONLY THAT THE BAN ON THE WEARING OF
BADGES AND BUTTONS MAY BE "IMPERMISSIBLE,"  BUT ALSO THAT THE ACT "MAY
BE SUSCEPTIBLE OF SOME OTHER IMPROPER APPLICATIONS."  ANTE, AT 618. 
UNDER PRINCIPLES THAT I HAD THOUGHT ESTABLISHED BEYOND DISPUTE, THAT
ASSUMPTION REQUIRES A FINDING THAT THE STATUTE IS UNCONSTITUTIONAL ON
ITS FACE.  ORDINARILY, "ONE TO WHOM APPLICATION OF A STATUTE IS
CONSTITUTIONAL WILL NOT BE HEARD TO ATTACK THE STATUTE ON THE GROUND
THAT IMPLIEDLY IT MIGHT ALSO BE TAKEN AS APPLYING TO OTHER PERSONS OR
OTHER SITUATIONS IN WHICH ITS APPLICATION MIGHT BE UNCONSTITUTIONAL." 
UNITED STATES V. RAINES, 362 U. S. 17, 21 (1960).  /8/  AND APPELLANTS
APPARENTLY CONCEDE THAT THE STATE COULD PROHIBIT THE CONDUCT WITH WHICH
THEY WERE CHARGED WITHOUT INFRINGING THE GUARANTEES OF THE FIRST
AMENDMENT.  NEVERTHELESS, WE HAVE REPEATEDLY RECOGNIZED THAT "THE
TRANSCENDENT VALUE TO ALL SOCIETY OF CONSTITUTIONALLY PROTECTED
EXPRESSION IS DEEMED TO JUSTIFY ALLOWING 'ATTACKS ON OVERLY BROAD
STATUTES WITH NO REQUIREMENT THAT THE PERSON MAKING THE ATTACK
DEMONSTRATE THAT HIS OWN CONDUCT COULD NOT BE REGULATED BY A STATUTE
DRAWN WITH THE REQUISITE NARROW SPECIFICITY.'"  GOODING V. WILSON,
SUPRA, AT 521, QUOTING FROM DOMBROWSKI V. PFISTER, 380 U. S. 479, 486
(1965).  /9/ WE HAVE ADHERED TO THAT VIEW BECAUSE THE GUARANTEES OF THE
FIRST AMENDMENT ARE "DELICATE AND VULNERABLE, AS WELL AS SUPREMELY
PRECIOUS IN OUR SOCIETY.  THE THREAT OF SANCTIONS MAY DETER THEIR
EXERCISE ALMOST AS POTENTLY AS THE ACTUAL APPLICATION OF SANCTIONS. 
CF. SMITH V. CALIFORNIA, (361 U. S. 147, 151 - 154 (1959)."  NAACP V.
BUTTON, SUPRA, AT 433.  THE MERE EXISTENCE OF A STATUTE THAT SWEEPS TOO
BORADLY IN AREAS PROTECTED BY THE FIRST AMENDMENT "RESULTS IN A
CONTINUOUS AND PERVASIVE RESTRAINT ON ALL FREEDOM OF DISCUSSION THAT
MIGHT REASONABLY BE REGARDED AS WITHIN ITS PERVIEW.  . . . WHERE
REGULATIONS OF THE LIBERTY OF FREE DISCUSSION ARE CONCERNED, THERE ARE
SPECIAL REASONS FOR OBSERVING THE RULE THAT IT IS THE STATUTE, AND NOT
THE ACCUSATION OR THE EVIDENCE UNDER IT, WHICH PRESCRIBES THE LIMITS OF
PERMISSIBLE CONDUCT AND WARNS AGAINST TRANSGRESSION."  THORNHILL V.
ALABAMA, 310 U. S. 88, 98 (1940).  SEE NOTE, THE FIRST AMENDMENT
OVERBREADTH DOCTRINE, 83 HARV. L. REV. 844, 853 - 854 (1970). 

ALTHOUGH THE COURT DECLINES TO HOLD THE OKLAHOMA ACT
UNCONSTITUTIONAL ON ITS FACE, IT DOES EXPRESSLY RECOGNIZE THAT
OVERBREADTH REVIEW IS A NECESSARY MEANS OF PREVENTING A "CHILLING
EFFECT" ON PROTECTED EXPRESSION.  NEVERTHELESS, THE COURT REASONS THAT
THE FUNCTION OF THE DOCTRINE "ATTENUATES AS THE OTHERWISE UNPROTECTED
BEHAVIOR THAT IT FORBIDS THE STATE TO SANCTION MOVES FROM 'PURE SPEECH'
TOWARDS CONDUCT AND THAT CONDUCT--EVEN IF EXPRESSIVE--FALLS WITHIN THE
SCOPE OF OTHERWISE VALID CRIMINAL LAWS THAT REFLECT LEGITIMATE STATE
INTERESTS IN MAINTAINING COMPREHENSIVE CONTROLS OVER HARMFUL,
CONSTITUTIONALLY UNPROTECTED CONDUCT."  ANTE, AT 615.  WHERE CONDUCT IS
INVOLVED, A STATUTE'S OVERBREADTH MUST HENCEFORTH BE "SUBSTANTIAL"
BEFORE THE STATUTE CAN PROPERLY BE FOUND INVALID ON ITS FACE. 

I CANNOT ACCEPT THE VALIDITY OF THAT ANALYSIS.  IN THE FIRST PLACE,
THE COURT MAKES NO EFFORT TO DEFINE WHAT IT MEANS BY "SUBSTANTIAL
OVERBREADTH."  WE HAVE NEVER HELD THAT A STATUTE SHOULD BE HELD INVALID
ON ITS FACE MERELY BECAUSE IT IS POSSIBLE TO CONCEIVE OF A SINGLE
IMPERMISSIBLE APPLICATION, AND IN THAT SENSE A REQUIREMENT OF
SUBSTANTIAL OVERBREADTH IS ALREADY IMPLICIT IN THE DOCTRINE.  CF. NOTE,
THE FIRST AMENDMENT OVERBREADTH DOCTRINE, SUPRA, AT 858 - 860, 918. 
WHETHER THE COURT MEANS TO REQUIRE SOME DIFFERENT OR GREATER SHOWING OF
SUBSTANTIALITY IS LEFT OBSCURE BY TODAY'S OPINION, IN LARGE PART
BECAUSE THE COURT MAKES NO EFFORT TO EXPLAIN WHY THE OVERBREADTH OF THE
OKLAHOMA ACT, WHILE REAL, IS SOMEHOW NOT QUITE SUBSTANTIAL.  NO MORE
GUIDANCE IS PROVIDED THAN THE COURT'S CONCLUSORY ASSERTION THAT
APPELLANTS' SHOWING HERE FALLS BELOW THE LINE. 

MORE FUNDAMENTALLY, THE COURT OFFERS NO RATIONALE TO EXPLAIN ITS
CONCLUSION THAT, FOR PURPOSES OF OVERBREADTH ANALYSIS, DETERRENCE OF
CONDUCT SHOULD BE VIEWED DIFFERENTLY FROM DETERRENCE OF SPEECH, EVEN
WHERE BOTH ARE EQUALLY PROTECTED BY THE FIRST AMENDMENT.  INDEED, IN
THE CASE BEFORE US IT IS HARD TO KNOW WHETHER THE PROTECTED ACTIVITY
FALLING WITHIN THE ACT SHOULD BE CONSIDERED SPEECH OR CONDUCT.  IN ANY
CASE, THE CONCLUSION THAT A DISTINCTION SHOULD BE DRAWN WAS THE PREMISE
OF MR. JUSTICE WHITE'S DISSENTING OPINION IN COATES V. CITY OF
CINCINNATI, 402 U. S. 611, 620 - 621 (1971), AND THAT CONCLUSION-
ALTHOUGH SQUARELY REJECTED IN COATES--HAS NOW BEEN ADOPTED BY THE
COURT. 

AT ISSUE IN COATES WAS A CITY ORDINANCE MAKING IT AN OFFENSE FOR
"THREE OR MORE PERSONS TO ASSEMBLE . . . ON ANY OF THE SIDEWALKS . . .
AND THERE CONDUCT THEMSELVES IN A MANNER ANNOYING TO PERSONS PASSING BY
. . . ."  ID., AT 611.  THERE CAN BE NO DOUBT THAT THE ORDINANCE WAS
HELD UNCONSTITUTIONAL ON ITS FACE, AND NOT MERELY UNCONSTITUTIONAL AS
APPLIED TO PARTICULAR, PROTECTED CONDUCT.  FOR THE COURT EXPRESSLY
NOTED THAT THE ORDINANCE WAS "AIMED DIRECTLY AT ACTIVITY PROTECTED BY
THE CONSTITUTION.  WE NEED NOT LAMENT THAT WE DO NOT HAVE BEFORE US THE
DETAILS OF THE CONDUCT FOUND TO BE ANNOYING.  IT IS THE ORDINANCE ON
ITS FACE THAT SETS THE STANDARD OF CONDUCT AND WARNS AGAINST
TRANSGRESSION.  THE DETAILS OF THE OFFENSE COULD NO MORE SERVE TO
VALIDATE THIS ORDINANCE THAN COULD THE DETAILS OF AN OFFENSE CHARGED
UNDER AN ORDINANCE SUSPENDING UNCONDITIONALLY THE RIGHT OF ASSEMBLY AND
FREE SPEECH."  ID., AT 616.  IN DISSENT, MR. JUSTICE WHITE MAINTAINED
THAT SINCE THE ORDINANCE PROHIBITED PERSONS FROM "ASSEMBLING AND
'CONDUCTING)' THEMSELVES IN A MANNER ANNOYING TO OTHER PERSONS,"  HE
WOULD "DEAL WITH THE CINCINNATI ORDINANCE AS WE WOULD WITH THE ORDINARY
CRIMINAL STATUTE.  THE ORDINANCE CLEARLY REACHES CERTAIN CONDUCT BUT
MAY BE ILLEGALLY VAGUE WITH RESPECT TO OTHER CONDUCT.  THE STATUTE IS
NOT INFIRM ON ITS FACE AND SINCE WE HAVE NO INFORMATION FROM THIS
RECORD AS TO WHAT CONDUCT WAS CHARGED AGAINST THESE DEFENDANTS, WE ARE
IN NO POSITION TO JUDGE THE STATUTE AS APPLIED.  THAT THE ORDINANCE MAY
CONFER WIDE DISCRETION IN A WIDE RANGE OF CIRCUMSTANCES IS IRRELEVANT
WHEN WE MAY BE DEALING WITH CONDUCT AT ITS CORE."  ID., AT 620 - 621. 
THUS, COATES STOOD, UNTIL TODAY, FOR THE PROPOSITION THAT WHERE A
STATUTE IS "UNCONSTITUTIONALLY BROAD BECAUSE IT AUTHORIZES THE
PUNISHMENT OF CONSTITUTIONALLY PROTECTED CONDUCT,"  ID., AT 614, IT
MUST BE HELD INVALID ON ITS FACE WHETHER OR NOT THE PERSON RAISING THE
CHALLENGE COULD HAVE BEEN PROSECUTED UNDER A PROPERLY NARROWED
STATUTE.  /10/  THE COURT MAKES NO ATTEMPT TO DISTINGUISH COATES,
IMPLICITLY CONCEDING THAT THE DECISION HAS BEEN OVERRULED. 

AT THIS STAGE, IT IS OBVIOUSLY DIFFICULT TO ESTIMATE THE PROBABLE
IMPACT OF TODAY'S DECISION.  IF THE REQUIREMENT OF "SUBSTANTIAL"
OVERBREADTH IS CONSTRUED TO MEAN ONLY THAT FACIAL REVIEW IS
INAPPROPRIATE WHERE THE LIKELIHOOD OF AN IMPERMISSIBLE APPLICATION OF
THE STATUTE IS TOO SMALL TO GENERATE A "CHILLING EFFECT" ON PROTECTED
SPEECH OR CONDUCT, THEN THE IMPACT IS LIKELY TO BE SMALL.  ON THE OTHER
HAND, IF TODAY'S DECISION NECESSITATES THE DRAWING OF ARTIFICIAL
DISTINCTIONS BETWEEN PROTECTED SPEECH AND PROTECTED CONDUCT, AND IF THE
"CHILL" ON PROTECTED CONDUCT IS RARELY, IF EVER, FOUND SUFFICIENT TO
REQUIRE THE FACIAL INVALIDATION OF AN OVERBROAD STATUTE, THEN THE
EFFECT COULD BE VERY GRAVE INDEED.  IN MY VIEW THE PRINCIPLES SET FORTH
IN COATES V. CITY OF CINCINNATI, ARE ESSENTIAL TO THE PRESERVATION AND
ENFORCEMENT OF THE FIRST AMENDMENT GUARANTEES.  SINCE NO SUBSEQUENT
DEVELOPMENT HAS PERSUADED ME THAT THE PRINCIPLES ARE ILL-FOUNDED OR
THAT COATES WAS INCORRECTLY DECIDED, I WOULD REVERSE THE JUDGMENT OF
THE DISTRICT COURT ON THE STRENGTH OF THAT DECISION AND HOLD THE
OKLAHOMA MERIT ACT UNCONSTITUTIONAL ON ITS FACE.     /1/  OKLA. STAT.
ANN., TIT. 74, ^ 818 PROVIDES IN PERTINENT PART:     "NO EMPLOYEE IN
THE CLASSIFIED SERVICE, AND NO MEMBER OF THE PERSONNEL BOARD SHALL,
DIRECTLY OR INDIRECTLY, SOLICIT, RECEIVE, OR IN ANY MANNER BE CONCERNED
IN SOLICITING OR RECEIVING ANY ASSESSMENT, SUBSCRIPTION OR CONTRIBUTION
FOR ANY POLITICAL ORGANIZATION, CANDIDACY OR OTHER POLITICAL PURPOSE;
AND NO STATE OFFICER OR STATE EMPLOYEE IN THE UNCLASSIFIED SERVICE
SHALL SOLICIT OR RECEIVE ANY SUCH ASSESSMENT, SUBSCRIPTION OR
CONTRIBUTION FROM AN EMPLOYEE IN THE CLASSIFIED SERVICE. 

"NO EMPLOYEE IN THE CLASSIFIED SERVICE SHALL BE A MEMBER OF ANY
NATIONAL, STATE OR LOCAL COMMITTEE OF A POLITICAL PARTY, OR AN OFFICER
OR MEMBER OF A COMMITTEE OF A PARTISAN POLITICAL CLUB, OR A CANDIDATE
FOR NOMINATION OR ELECTION TO ANY PAID PUBLIC OFFICE, OR SHALL TAKE
PART IN THE MANAGEMENT OR AFFAIRS OF ANY POLITICAL PARTY OR IN ANY
POLITICAL CAMPAIGN, EXCEPT TO EXERCISE HIS RIGHT AS A CITIZEN PRIVATELY
TO EXPRESS HIS OPINION AND TO CAST HIS VOTE." 

/2/  OKLAHOMA MERIT SYSTEM OF PERSONNEL ADMINISTRATION RULE 1630
(1971): 

"NO EMPLOYEE IN THE CLASSIFIED SERVICE, AND NO MEMBER OF THE
PERSONNEL BOARD SHALL, DIRECTLY OR INDIRECTLY, SOLICIT, RECEIVE, OR IN
ANY MANNER BE CONCERNED IN SOLICITING OR RECEIVING ANY ASSESSMENT,
SUBSCRIPTION OR CONTRIBUTION FOR ANY POLITICAL ORGANIZATION, CANDIDACY
OR OTHER POLITICAL PURPOSE; AND NO STATE OFFICER OR STATE EMPLOYEE IN
THE UNCLASSIFIED SERVICE SHALL SOLICIT OR RECEIVE ANY SUCH ASSESSMENT,
SUBSCRIPTION OR CONTRIBUTION FROM A EMPLOYEE IN THE CLASSIFIED
SERVICE." 

RULE 1640 PROVIDES: 

"NO EMPLOYEE IN THE CLASSIFIED SERVICE SHALL BE A MEMBER OF ANY
NATIONAL, STATE OR LOCAL COMMITTEE OF A POLITICAL PARTY, OR AN OFFICER
OR MEMBER OF A COMMITTEE OF A PARTISAN POLITICAL CLUB OR A CANDIDATE
FOR NOMINATION OR ELECTION TO ANY PAID PUBLIC OFFICE, OR SHALL TAKE
PART IN THE MANAGEMENT OR AFFAIRS OF ANY POLITICAL PARTY OR IN ANY
POLITICAL CAMPAIGN, EXCEPT TO EXERCISE HIS RIGHT AS A CITIZEN PRIVATELY
TO EXPRESS HIS OPINION AND TO CAST HIS VOTE." 

COMPARE N. 1, SUPRA. 

/3/  RULE 1625 PROVIDES: 

"EVERY CLASSIFIED EMPLOYEE SHALL FULFILL TO THE BEST OF HIS ABILITY
THE DUTIES OF THE OFFICE OF POSITION CONFERRED UPON HIM AND SHALL PROVE
HIMSELF IN HIS BEHAVIOR, INSIDE AND OUTSIDE, THE WORTH OF THE ESTEEM
WHICH HIS OFFICE OR POSITION REQUIRES.  IN HIS OFFICIAL ACTIVITIES THE
CLASSIFIED EMPLOYEE SHALL PURSUE THE COMMON GOOD, AND, NOT ONLY BE
IMPARTIAL, BUT SO ACT AS NEITHER TO ENDANGER HIS IMPARTIALITY NOR TO
GIVE OCCASION FOR DISTRUST OF HIS IMPARTIALITY. 

"A CLASSIFIED EMPLOYEE SHALL NOT ENGAGE IN ANY EMPLOYMENT, ACTIVITY
OR ENTERPRISE WHICH HAS BEEN DETERMINED TO BE INCONSISTENT,
INCOMPATIBLE, OR IN CONFLICT WITH HIS DUTIES AS A CLASSIFIED EMPLOYEE
OR WITH THE DUTIES, FUNCTIONS OR RESPONSIBILITIES OF THE APPOINTING
AUTHORITY BY WHICH HE IS EMPLOYED. 

"EACH APPOINTING AUTHORITY SHALL DETERMINE AND PRESCRIBE THOSE
ACTIVITIES WHICH, FOR EMPLOYEES UNDER ITS JURISDICTION, WILL BE
CONSIDERED INCONSISTENT, INCOMPATIBLE OR IN CONFLICT WITH THEIR DUTIES
AS CLASSIFIED EMPLOYEES.  IN MAKING THIS DETERMINATION THE APPOINTING
AUTHORITY SHALL GIVE CONSIDERATION TO EMPLOYMENT, ACTIVITY OR
ENTERPRISE WHICH:  (A) INVOLVES THE USE FOR PRIVATE GAIN OR ADVANTAGE
OF STATE TIME, FACILITIES, EQUIPMENT AND SUPPLIES; OR, THE BADGE,
UNIFORM, PRESTIGE OR INFLUENCE OF ONE'S STATE OFFICE OF EMPLOYMENT, OR
(B) INVOLVES RECEIPT OR ACCEPTANCE BY THE CLASSIFIED EMPLOYEE OF ANY
MONEY OR OTHER CONSIDERATION FROM ANYONE, OTHER THAN THE STATE, FOR THE
PERFORMANCE OF AN ACT WHICH THE CLASSIFIED EMPLOYEE WOULD BE REQUIRED
OR EXPECTED TO RENDER IN THE REGULAR COURSE OR HOURS OF HIS STATE
EMPLOYMENT OR AS A PART OF HIS DUTIES AS A STATE CLASSIFIED EMPLOYEE,
OR (C) INVOLVES THE PERFORMANCE OF AN ACT IN OTHER THAN HIS CAPACITY AS
A STATE CLASSIFIED EMPLOYEE WHICH ACT MAY LATER BE SUBJECT DIRECTLY OR
INDIRECTLY TO THE CONTROL, INSPECTION, REVIEW, AUDIT OR ENFORCEMENT BY
SUCH CLASSIFIED EMPLOYEE OR THE AGENCY BY WHICH HE IS EMPLOYED. 

"EACH CLASSIFIED EMPLOYEE SHALL DURING HIS HOURS OF DUTY AND SUBJECT
TO SUCH OTHER LAWS, RULES AND REGULATIONS AS PERTAIN THERETO, DEVOTE
HIS FULL TIME, ATTENTION AND EFFORTS TO HIS OFFICE OR EMPLOYMENT." 

/4/  RULE 1209.2 PROVIDES: 

"ANY CLASSIFIED EMPLOYEE SHALL RESIGN HIS POSITION PRIOR TO FILING
AS A CANDIDATE FOR PUBLIC OFFICE, SEEKING OR ACCEPTING NOMINATIONS FOR
ELECTION OR APPOINTMENT AS AN OFFICIAL OF A POLITICAL PARTY, PARTISAN
POLITICAL CLUB OR ORGANIZATION OR SERVING AS A MEMBER OF A COMMITTEE OF
ANY SUCH GROUP OR ORGANIZATION." 

/5/  RULE 1641 PROVIDES: 

"AN EMPLOYEE IN THE CLASSIFIED SERVICE MAY NOT WEAR A POLITICAL
BADGE, BUTTON, OR SIMILAR PARTISTAN EMBLEM, NOR MAY SUCH EMPLOYEE
DISPLAY A PARTISAN POLITICAL STICKER OR SIGN ON AN AUTOMOBILE OPERATED
BY HIM OR UNDER HIS CONTROL.  CONTINUED USE OR DISPLAY OF SUCH
POLITICAL MATERIAL SHALL BE DEEMED WILLFUL INTENT TO VIOLATE THE
PROVISIONS OF 74 O. S. 1961 ^ 818 RELATING TO PROHIBITED POLITICAL
ACTIVITIES OF CLASSIFIED STATE EMPLOYEES AND SHALL SUBJECT SUCH
EMPLOYEE TO DISMISSAL PURSUANT TO SAID STATUTE." 

/6/  SEE ALSO NIEMOTKO V. MARYLAND, 340 U. S. 268, 285 (1951)
(FRANKFURTER, J., CONCURRING IN THE RESULT IN KUNZ V. NEW YORK, 340 U.
S. 290 (1951):  "IT IS NOT FOR THIS COURT TO FORMULATE WITH
PARTICULARITY THE TERMS OF A PERMIT SYSTEM WHICH WOULD SATISFY THE
FOURTEENTH AMENDMENT." 

/7/  IN ADDITION TO THE REGULATIONS PROMULGATED BY THE STATE
PERSONNEL BOARD, THE COURT PLACES SOME RELIANCE ON AN INTERPRETIVE
CIRCULAR ISSUED BY THE BOARD AND ON CERTAIN OPINIONS ISSUED BY THE
STATE ATTORNEY GENERAL.  EVEN ASSUMING THAT THESE CONSTRUCTIONS SHOULD
PROPERLY BE CONSIDERED IN GAUGING THE REACH OF THE ACT, THEY OFFER
LITTLE REAL GUIDANCE TO THE MEANING OF THE TERMS.  THE CIRCULAR, FOR
EXAMPLE, STATES THAT "THE RIGHT TO EXPRESS POLITICAL OPINIONS IS
RESERVED TO ALL SUCH PERSONS.  NOTE:  THIS RESERVATION IS SUBJECT TO
THE PROHIBITION THAT SUCH PERSONS MAY NOT TAKE ACTIVE PART IN POLITICAL
MANAGEMENT OR IN POLITICAL CAMPAIGNS."  SEE ANTE, AT 617 N. 15.  THE
SECOND HALF OF THAT STATEMENT MERELY RESTATES THE PROBISION OF THE
ACT.  THE FIRST HALF CAN HARDLY BE SAID TO CONVEY ANY FIXED MEANING. 
IN FACT, GIVEN THE STATEMENT IN THE ACT THAT THE RIGHT TO MAKE A
PRIVATE EXPRESSION OF POLITICAL VIEWS IS PROTECTED, AN EMPLOYEE MIGHT
REASONABLY INTERPRET THE CIRCULAR TO MEAN THAT "THE RIGHT TO EXPRESS
POLITICAL OPINIONS IS RESERVED TO ALL SUCH PERSONS, PROVIDED THAT SUCH
EXPRESSION IS NOT MADE IN PUBLIC."  SIMILARLY, THE COURT MAKES
REFERENCE TO AN OPINION OF THE ATTORNEY GENERAL HOLDING, "IN PLAIN
TERMS," ANTE, AT 617, THAT THE ACT APPLIES ONLY TO "CLEARLY PARTISAN
POLITICAL ACTIVITY."  I AM AT A LOSS TO SEE HOW THESE STATEMENTS OFFER
ANY CLARIFICATION OF THE PROVISIONS OF THE ACT. 

/8/  RAINES CONCERNED A PROSECUTION UNDER ^ 131 OF THE CIVIL RIGHTS
ACT OF 1957, CHARGING THAT THE DEFENDANTS, IN THEIR CAPACITY AS STATE
OFFICIALS, HAD DISCRIMINATED AGAINST BLACKS WHO DESIRED TO REGISTER TO
VOTE.  THE DEFENDANTS' CONDUCT PLAINLY FELL WITHIN THE PERMISSIBLE
REACH OF THE STATUTE.  BUT MORE IMPORTANTLY, IT WAS NOT EVEN SUGGESTED
THAT THE STATUTE MIGHT CONCEIVABLY BE USED TO PUNISH THE EXERCISE OF
FIRST AMENDMENT RIGHTS.  WHILE STATING THE GENERAL RULE THAT A
DEFENDANT NORMALLY MAY NOT ASSERT THE CONSTITUTIONAL RIGHT OF A PERSON
NOT A PARTY, RAINES DID SPECIFICALLY RECOGNIZE THAT THE RULE IS
SUSPENDED IN CASES WHERE ITS APPLICATION WOULD "ITSELF HAVE AN
INHIBITORY EFFECT ON FREEDOM OF SPEECH."  362 U. S. 17, 22.  CF. UNITED
STATES V. NATIONAL DAIRY CORP. 372 U. S. 29 (1963); YAZOO & M. V. R.
CO. V. JACKSON VINEGAR CO. 226 U. S. 217 (1912). 

/9/  SEE ALSO KUNZ V. NEW YORK, 340 U. S. 290 (1951); APTHEKER V.
SECRETARY OF STATE, 378 U. S. 500 (1964); TERMINIELLO V. CHICAGO, 337
U. S. 1 (1949). 

/10/  THE COURT HAS APPLIED OVERBREADTH REVIEW TO MANY OTHER
STATUTES THAT ASSERTEDLY HAD A "CHILLING EFFECT" ON PROTECTED CONDUCT,
RATHER THAN ON "PURE SPEECH."  SEE, E. G., UNITED STATES V. ROBEL, 389
U. S. 258 (1967); APTHEKER V. SECRETARY OF STATE, SUPRA; THORNHILL V.
ALABAMA, 310 U. S. 88 (1940).  IN NONE OF THESE CASES, OR OTHERS
INVOLVING CONDUCT RATHER THAN SPEECH, DID THE COURT SUGGEST THAT A
DEFENDANT WOULD LACK STANDING TO RAISE THE OVERBREADTH CLAIM IF HIS
CONDUCT COULD BE PROSCRIBED BY A NARROWLY DRAWN STATUTE. 

JOHN C. BUCKINGHAM ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WAS TERRY SHIPLEY. 

MIKE D. MARTIN, ASSISTANT ATTORNEY GENERAL OF OKLAHOMA, ARGUED THE
CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE LARRY DERRYBERRY,
ATTORNEY GENERAL, AND PAUL C. DUNCAN, ASSISTANT ATTORNEY GENERAL. 
..END :







SUGARMAN V. DOUGALL 413 U.S. 634 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK

        NO. 71 - 1222.  ARGUED JANUARY 8, 1973--DECIDED JUNE 25,

     1973; 339 F.SUPP.  906, AFFIRMED. 


    SECTION 53 OF THE NEW YORK CIVIL SERVICE LAW PROVIDES THAT ONLY

  UNITED STATES CITIZENS MAY HOLD PERMANENT POSITIONS IN THE

  COMPETITIVE CLASS OF THE STATE CIVIL SERVICE.  THE DISTRICT COURT

  CONCLUDED THAT THE STATUTE WAS VIOLATIVE OF THE FOURTEENTH

  AMENDMENT AND THE SUPREMACY CLAUSE, AND GRANTED INJUNCTIVE

  RELIEF.  HELD: 

     1.  SECTION 53 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT SINCE, IN THE CONTEXT OF NEW YORK'S

STATUTORY CIVIL SERVICE SCHEME, IT SWEEPS INDISCRIMINATELY AND IS

  NOT NARROWLY LIMITED TO THE ACCOMPLISHMENT OF SUBSTANTIAL STATE

  INTERESTS.  PP. 638 - 643. 

     2. THE "SPECIAL PUBLIC INTEREST" DOCTRINE HAS NO APPLICABILITY

 IN THIS CASE.  PP. 643 - 645. 

     3.  NOR CAN THE CITIZENSHIP REQUIREMENT BE JUSTIFIED ON THE

  UNPROVED PREMISE THAT ALIENS ARE LESS PERMANENT EMPLOYEES THAN

  CITIZENS, OR ON OTHER GROUNDS ASSERTED BY APPELLANTS.  PP. 645 -

646. 

     4.  WHILE THE STATE HAS AN INTEREST IN DEFINING ITS POLITICAL

  COMMUNITY, AND A CORRESPONDING INTEREST IN ESTABLISHING THE

  QUALIFICATIONS FOR PERSONS HOLDING STATE ELECTIVE OR IMPORTANT

  NONELECTIVE EXECUTIVE, LEGISLATIVE, AND JUDICIAL POSITIONS, THE

  BROAD CITIZENSHIP REQUIREMENT ESTABLISHED BY ^ 53 CANNOT BE

  JUSTIFIED ON THIS BASIS.  PP. 646 - 649.  BLACKMUN, J., DELIVERED

  THE OPINION OF THE COURT, IN WHICH 

BURGER, C. J., AND DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, 

AND POWELL, JJ., JOINED.  REHNQUIST, J., FILED A DISSENTING 

OPINION, POST, P. 649.  J. SHANE CREAMER, ATTORNEY GENERAL, AND
JAMES R. ADAMS, DEPUTY 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 


   "EXCEPT AS HEREIN OTHERWISE PROVIDED, NO PERSON SHALL BE

  ELIGIBLE FOR APPOINTMENT FOR ANY POSITION IN THE COMPETITIVE

  CLASS UNLESS HE IS A CITIZEN OF THE UNITED STATES."  /1/ 

THE FOUR APPELLEES, PATRICK MC L. DOUGALL, ESPERANZA JORGE, TERESA
VARGAS, AND SYLVIA CASTRO, ARE FEDERALLY REGISTERED RESIDENT ALIENS. 
WHEN, BECAUSE OF THEIR ALIENAGE, THEY WERE DISCHARGED IN 1971 FROM
THEIR COMPETITIVE CIVIL SERVICE POSITIONS WITH THE CITY OF NEW YORK,
THE APPELLEES INSTITUTED THIS CLASS ACTION CHALLENGING THE
CONSTITUTIONALITY OF ^ 53.  THE NAMED DEFENDANTS, AND APPELLANTS HERE,
WERE THE ADMINISTRATOR OF THE CITY'S HUMAN RESOURCES ADMINISTRATION
(HRA), AND THE CITY'S DIRECTOR OF PERSONNEL AND CHAIRMAN OF ITS CIVIL
SERVICE COMMISSION.  THE APPELLEES SOUGHT (1) A DECLARATION THAT THE
STATUTE WAS INVALID UNDER THE FIRST AND FOURTEENTH AMENDMENTS, (2)
INJUNCTIVE RELIEF AGAINST ANY REFUSAL, ON THE GROUND OF ALIENAGE, TO
APPOINT AND EMPLOY THE APPELLEES, AND ALL PERSONS SIMILARLY SITUATED,
IN CIVIL SERVICE POSITIONS IN THE COMPETITIVE CLASS, AND (3) DAMAGES
FOR LOST EARNINGS.  A DEFENSE MOTION TO DISMISS FOR WANT OF
JURISDICTION WAS DENIED BY JUDGE TENNEY, 330 F. SUPP. 265 (SDNY 1971). 
A THREE-JUDGE COURT WAS CONVENED.  THAT COURT RULED THAT THE STATUTE
WAS VIOLATIVE OF THE FOURTEENTH AMENDMENT AND THE SUPREMACY CLAUSE, AND
GRANTED INJUNCTIVE RELIEF.  339 F. SUPP. 906 (SDNY 1971).  /2/  JUDGE
LUMBARD JOINED THE COURT'S OPINION AND JUDGMENT, BUT WROTE SEPARATELY
IN CONCURRENCE.  ID., AT 911.  PROBABLE JURISDICTION WAS NOTED.  407 U.
S. 908 (1972). 

        I 

PRIOR TO DECEMBER 28, 1970, THE APPELLEES WERE EMPLOYED BY NONPROFIT
ORGANIZATIONS THAT RECEIVED FUNDS THROUGH HRA FROM THE UNITED STATES
OFFICE OF ECONOMIC OPPORTUNITY.  THESE SUPPORTIVE FUNDS CEASED TO BE
AVAILABLE ABOUT THAT TIME AND THE ORGANIZATIONS, WITH APPROXIMATELY 450
EMPLOYEES, INCLUDING THE APPELLEES AND 16 OTHER NONCITIZENS, WERE
ABSORBED BY THE MANPOWER CAREER AND DEVELOPMENT AGENCY (NCDA) OF HRA. 
/3/  THE APPELLANT ADMINISTRATOR ADVISED THE TRANSFEREES THAT THEY
WOULD BE EMPLOYED BY THE CITY.  /4/  THE APPELLEES IN FACT WERE SO
EMPLOYED IN MCDA.  IN FEBRUARY, HOWEVER, THEY WERE INFORMED THAT THEY
WERE INELIGIBLE FOR EMPLOYMENT BY THE CITY AND THAT THEY WOULD BE
DISMISSED UNDER THE STATUTORY MANDATE OF ^ 53 (1).  SHORTLY THEREAFTER,
THEY WERE DISCHARGED FROM MCDA SOLELY BECAUSE OF THEIR ALIENAGE.  /5/ 

APPELLEE DOUGALL WAS BORN IN GEORGETOWN, GUYANA, IN SEPTEMBER 1927. 
HE HAS BEEN A RESIDENT OF NEW YORK CITY SINCE 1964.  HE WAS EMPLOYED BY
MCDA AS AN ADMINISTRATIVE ASSISTANT IN THE STAFF DEVELOPMENT UNIT. 

APPELLEE JORGE WAS BORN IN NOVEMBER 1948 IN THE DOMINICAN REPUBLIC. 
SHE HAS BEEN A RESIDENT OF NEW YORK CITY SINCE 1967.  SHE WAS EMPLOYED
BY THE PUERTO RICAN FORUM AS A CLERK-TYPIST AND, LATER, AS A HUMAN
RESOURCES TECHNICIAN.  SHE WORKED IN THE LATTER CAPACITY FOR MCDA. 

APPELLEE VARGAS WAS BORN IN THE DOMINICAN REPUBLIC IN JUNE 1946. 
SHE HAS BEEN A RESIDENT OF NEW YORK CITY SINCE 1963.  SHE WORKED AS A
CLERK-TYPIST FOR THE PUERTO RICAN FORUM AND IN THE SAME CAPACITY FOR
MCDA. 

APPELLEE CASTRO WAS BORN IN EL SALVADOR IN JUNE 1944.  SHE HAS
RESIDED IN NEW YORK CITY SINCE 1967.  SHE WAS EMPLOYED BY THE PUERTO
RICAN FORUM AS AN ASSISTANT COUNSELOR AND THEN AS A HUMAN RESOURCES
TECHNICIAN AND WORKED IN THE LATTER CAPACITY FOR MCDA. 

THE RECORD DOES NOT DISCLOSE THAT ANY OF THE FOUR APPELLEES EVER
TOOK ANY STEP TO ATTAIN UNITED STATES CITIZENSHIP. 

THE DISTRICT COURT, IN REACHING ITS CONCLUSION THAT ^ 53 WAS
UNCONSTITUTIONAL UNDER THE FOURTEENTH AMENDMENT, PLACED PRIMARY
RELIANCE ON THIS COURT'S DECISIONS IN GRAHAM V. RICHARDSON, 403 U. S.
365 (1971), AND TAKAHASHI V. FISH COMM'N, 334 U. S. 410 (1948), AND TO
AN EXTENT, ON PURDY & FITZPATRICK V. STATE, 71 CAL. 2D 566, 456 P. 2D
645 (1969).  ON THE BASIS OF THESE CASES, THE COURT ALSO CONCLUDED THAT
^ 53 WAS IN CONFLICT WITH CONGRESS' COMPREHENSIVE REGULATION OF
IMMIGRATION AND NATURALIZATION BECAUSE, IN EFFECT, IT DENIED APPELLEES
ENTRANCE TO, AND ABODE IN, NEW YORK.  ACCORDINGLY, THE COURT HELD, ^ 53
EMCRPACJED I^PM AM EXC;ISOVE FEDERAL POWER AND WAS CONSTITUTIONALLY
IMPERMISSIBLE UNDER ART. VI, CL. 2, OF THE CONSTITUTION. 

        II 

AS IS SO OFTEN THE CASE, IT IS IMPORTANT AT THE OUTSET TO DEFINE THE
PRECISE AND NARROW ISSUE THAT IS HERE PRESENTED.  THE COURT IS FACED
ONLY WITH THE QUESTION WHETHER NEW YORK'S FLAT STATUTORY PROHIBITION
AGAINST THE EMPLOYMENT OF ALIENS IN THE COMPETITIVE CLASSIFIED CIVIL
SERVICE IS CONSTITUTIONALLY VALID.  THE COURT IS NOT ASKED TO DECIDE
WHETHER A PARTICULAR ALIEN, ANYMORE THAN A PARTICULAR CITIZEN, MAY BE
REFUSED EMPLOYMENT OR DISCHARGED ON AN INDIVIDUAL BASIS FOR WHATEVER
LEGITIMATE REASON THE STATE MIGHT POSSESS. 

NEITHER IS THE COURT REVIEWING A LEGISLATIVE SCHEME THAT BARS SOME
OR ALL ALIENS FROM CLOSELY DEFINED AND LIMITED CLASSES OF PUBLIC
EMPLOYMENT ON A UNIFORM AND CONSISTENT BASIS.  THE NEW YORK SCHEME,
INSTEAD, IS INDISCRIMINATE.  THE GENERAL STANDARD IS ENUNCIATED IN THE
STATE'S CONSTITUTION, ART. V, ^ 6, AND IS TO THE EFFECT THAT
APPOINTMENTS AND PROMOTIONS IN THE CIVIL SERVICE "SHALL BE MADE
ACCORDING TO MERIT AND FITNESS TO BE ASCERTAINED, AS FAR AS
PRACTICABLE, BY EXAMINATION WHICH, AS FAR AS PRACTICABLE, SHALL BE
COMPETITIVE."  IN LINE WITH THIS RATHER FLEXIBLE CONSTITUTIONAL
MEASURE, THE CLASSIFIED CIVIL SERVICE LAW ^ 40.  THE FIRST IS THE
EXEMPT CLASS.  IT INCLUDES GENERALLY, THE HIGHER OFFICES IN THE STATE
EXECUTIVE DEPARTMENTS, CERTAIN MUNICIPAL OFFICERS, CERTAIN JUDICIAL
EMPLOYEES, AND POSITIONS FOR WHICH A COMPETITIVE OR NONCOMPETITIVE
EXAMINATION MAY BE FOUND TO BE IMPRACTICABLE.  THE EXEMPT CLASS
CONTAINS NO CITIZENSHIP RESTRICTION WHATSOEVER.  ^ 41.  THE SECOND IS
THE NONCOMPETITIVE CLASS.  THIS INCLUDES POSITIONS, NOT OTHERWISE
CLASSIFIED, FOR WHICH A NONCOMPETITIVE EXAMINATION WOULD BE
PRACTICABLE.  THERE IS NO CITIZENSHIP REQUIREMENT.  ^ 42.  THE THIRD IS
THE LABOR CLASS.  THIS INCLUDES UNSKILLED LABORERS HOLDING POSITIONS
FOR WHICH COMPETITIVE EXAMINATIONS WOULD BE IMPRACTICABLE.  NO ALIENAGE
EXCLUSION IS IMPOSED.  ^43.  THE FOURTH IS THE COMPETITIVE CLASS WITH
WHICH WE ARE HERE CONCERNED.  THIS INCLUDES ALL POSITIONS FOR WHICH IT
IS PRACTICABLE TO DETERMINE MERIT AND FITNESS BY A COMPETITIVE
EXAMINATION.  ^ 44.  ONLY CITIZENS OF THE UNITED STATES MAY HOLD
POSITIONS IN THIS CLASS.  ^ 53.  THE LIMITS OF THESE SEVERAL CLASSES,
PARTICULARLY THE COMPETITIVE CLASS FROM WHICH THE APPELLEES WERE DEEMED
TO BE DISQUALIFIED, ARE NOT READILY DEFINED.  IT WOULD APPEAR, HOWEVER,
THAT, CONSISTENT WITH THE BROAD SCOPE OF THE CITED CONSTITUTIONAL
PROVISION, THE COMPETITIVE CLASS REACHES VARIOUS POSITIONS IN NEARLY
THE FULL RANGE OF WORK TASKS, THAT IS, ALL THE WAY FROM THE MENIAL TO
THE POLICY MAKING. 

APART FROM THE CLASSIFIED CIVIL SERVICE, NEW YORK HAS AN
UNCLASSIFIED SERVICE.  ^ 35.  THIS INCLUDES, AMONG OTHERS, ALL ELECTIVE
OFFICES, OFFICES FILLED BY LEGISLATIVE APPOINTMENT, EMPLOYEES OF THE
LEGISLATURE, VARIOUS OFFICES FILLED BY THE GOVERNOR, AND TEACHERS.  NO
CITIZENSHIP REQUIREMENT IS PRESENT THERE. 

OTHER CONSTITUTIONAL AND STATUTORY CITIZENSHIP REQUIREMENTS ROUND
OUT THE NEW YORK SCHEME.  THE CONSTITUTION OF THE STATE PROVIDES THAT
VOTERS, ART. II, ^ 1, MEMBERS OF THE LEGISLATURE, ART. III, ^ 7, THE
GOVERNOR AND LIEUTENANT-GOVERNOR, ART. IV, ^ 2, AND THE COMPTROLLER AND
ATTORNEY-GENERAL, ART. V, ^ 1, ARE TO BE UNITED STATES CITIZENS.  AND
PUBLIC OFFICERS LAW ^ 3 REQUIRES THAT ANY PERSON HOLDING "A CIVIL
OFFICE" BE A CITIZEN OF THE UNITED STATES.  A "CIVIL OFFICE" IS
APPARENTLY ONE THAT "POSSESSES ANY OF THE ATTRIBUTES OF A PUBLIC
OFFICER OR . . . INVOLVES) SOME PORTION OF THE SOVEREIGN POWER."  1967
OP. N.Y. ATTY. GEN. 60; NEW YORK POST CORP. V. MOSES, 12 APP. DIV. 2D
243, 250, 210 N. Y. S. 2D 88, 95 REV'D ON OTHER GROUNDS, 10 N. Y. 2D
199, 176 N. E. 2D 709 (1961). 

WE THUS HAVE CONSTITUTIONAL PROVISIONS AND A NUMBER OF STATUTES
THAT, TOGETHER, CONSTITUTE NEW YORK'S SCHEME FOR THE EXCLUSION OF
ALIENS FROM PUBLIC EMPLOYMENT.  THE PRESENT CASE CONCERNS ONLY ^ 53 OF
THE CIVIL SERVICE LAW.  THE SECTION'S CONSTITUTIONALITY, HOWEVER, IS TO
BE JUDGED IN THE CONTEXT OF THE STATE'S BROAD STATUTORY FRAMEWORK AND
THE JUSTIFICATIONS THE STATE PRESENTS. 

        III 

IT IS ESTABLISHED, OF COURSE, THAT AN ALIEN IS ENTITLED TO THE
SHELTER OF THE EQUAL PROTECTION CLAUSE.  GRAHAM V. RICHARDSON, 403 U.
S. 365, 371 (1971); TRUAX V. RAICH, 239 U. S. 33, 39 (1915); WONG WING
V. UNITED STATES, 163 U. S. 228, 238 (1896); YICK WO V. HOPKINS, 118 U.
S. 356, 369 (1886).  SEE IN RE GRIFFITHS, POST, P. 717.  THIS
PROTECTION EXTENDS, SPECIFICALLY, IN THE WORDS OF MR. JUSTICE HUGHES,
TO ALIENS WHO "WORK FOR A LIVING IN THE COMMON OCCUPATIONS OF THE
COMMUNITY."  TRUAX V. RAICH, 239 U. S., AT 41. 

A. APPELLANTS ARGUE, HOWEVER, THAT ^ 53 DOES NOT VIOLATE THE EQUAL
PROTECTION GUARANTEE OF THE FOURTEENTH AMENDMENT BECAUSE THE STATUTE
"ESTABLISHES A GENERIC CLASSIFICATION REFLECTING THE SPECIAL
REQUIREMENTS OF PUBLIC EMPLOYMENT IN THE CAREER CIVIL SERVICE."  /6/
THE DISTINCTION DRAWN BETWEEN THE CITIZEN AND THE ALIEN, IT IS SAID,
"RESTS ON THE FUNDAMENTAL CONCEPT OF IDENTITY BETWEEN A GOVERNMENT AND
THE MEMBERS, OR CITIZENS, OF THE STATE."  /7/  THE CIVIL SERVANT
"PARTICIPATES DIRECTLY IN THE FORMULATION AND EXECUTION OF GOVERNMENT
POLICY," AND THUS MUST BE FREE OF COMPETING OBLIGATIONS TO ANOTHER
POWER.  /8/  THE STATE'S INTEREST IN HAVING AN EMPLOYEE OF UNDIVIDED
LOYALTY IS SUBSTANTIAL, FOR OBLIGATIONS ATTENDANT UPON FOREIGN
CITIZENSHIP "MIGHT IMPAIR THE EXERCISE OF HIS JUDGMENT OR JEOPARDIZE
PUBLIC CONFIDENCE IN HIS OBJECTIVITY."  /9/  EMPHASIS IS PLACED ON OUR
DECISION IN UNITED PUBLIC WORKERS V. MITCHELL, 330 U. S. 75 (1947),
UPHOLDING THE HATCH ACT AND ITS PROSCRIPTION OF POLITICAL ACTIVITY BY
CERTAIN PUBLIC EMPLOYEES, AND IT IS SAID THAT THE PUBLIC EMPLOYER "HAS
BROAD DISCRETION TO ESTABLISH QUALIFICATIONS FOR ITS EMPLOYEES RELATED
TO THE INTEGRITY AND EFFICIENCY OF THE OPERATIONS OF GOVERNMENT." 
/10/ 

IT IS AT ONCE APPARENT, HOWEVER, THAT APPELLANTS' ASSERTED
JUSTIFICATION PROVES BOTH TOO MUCH AND TOO LITTLE.  AS THE ABOVE
OUTLINE OF THE NEW YORK SCHEME REVEALS, THE STATE'S BROAD PROHIBITION
OF THE EMPLOYMENT OF ALIENS APPLIES TO MANY POSITIONS WITH RESPECT TO
WHICH THE STATE'S PROFFERED JUSTIFICATION HAS LITTLE, IF ANY,
RELATIONSHIP.  AT THE SAME TIME, THE PROHIBITION HAS NO APPLICATION AT
ALL TO POSITIONS THAT WOULD SEEM NATURALLY TO FALL WITHIN THE STATE'S
ASSERTED PURPOSE.  OUR STANDARD OF REVIEW OF STATUTES THAT TREAT ALIENS
DIFFERENTLY FROM CITIZENS REQUIRES A GREATER DEGREE OF PRECISION. 

IN GRAHAM V. RICHARDSON, 403 U. S., AT 372, WE OBSERVED THAT ALIENS
AS A CLASS "ARE A PRIME EXAMPLE OF A 'DISCRETE AND INSULAR' MINORITY
(SEE UNITED STATES V. CAROLENE PRODUCTS CO., 304 U. S. 144, 152 - 153,
N. 4 (1938))," AND THAT CLASSIFICATIONS BASED ON ALIENAGE ARE "SUBJECT
TO CLOSE JUDICIAL SCRUTINY."  AND AS LONG AS A QUARTER CENTURY AGO WE
HELD THAT THE STATE'S POWER "TO APPLY ITS LAWS EXCLUSIVELY TO ITS ALIEN
INHABITANTS AS A CLASS IS CONFINED WITHIN NARROW LIMITS."  TAKAHASHI V.
FISH COMM'N, 334 U. S., AT 420.  WE THEREFORE LOOK TO THE
SUBSTANTIALITY OF THE STATE'S INTEREST IN ENFORCING THE STATUTE IN
QUESTION, AND TO THE NARROWNESS OF THE LIMITS WITHIN WHICH THE
DISCRIMINATION IS CONFINED. 

APPLYING THIS STANDARD TO NEW YORK'S PURPOSE IN CONFINING CIVIL
SERVANTS IN THE COMPETITIVE CLASS TO THOSE PERSONS WHO HAVE NO TIES OF
CITIZENSHIP ELSEWHERE, ^ 53 DOES NOT WITHSTAND THE NECESSARY CLOSE
SCRUTINY.  WE RECOGNIZE A STATE'S INTEREST IN ESTABLISHING ITS OWN FORM
OF GOVERNMENT, AND IN LIMITING PARTICIPATION IN THAT GOVERNMENT TO
THOSE WHO ARE WITHIN "THE BASIC CONCEPTION OF A POLITICAL COMMUNITY." 
DUNN V. BLUMSTEIN, 405 U.S. 330, 344 (1972).  WE RECOGNIZE, TOO, THE
STATE'S BROAD POWER TO DEFINE ITS POLITICAL COMMUNITY.  BUT IN SEEKING
TO ACHIEVE THIS SUBSTANTIAL PURPOSE, WITH DISCRIMINATION AGAINST
ALIENS, THE MEANS THE STATE EMPLOYS MUST BE PRECISELY DRAWN IN LIGHT OF
THE ACKNOWLEDGED PURPOSE. 

APPLICATION.  ITS IMPOSED INELIGIBILITY MAY APPLY TO THE "SANITATION
MAN, CLASS B," PEROTTA V. GREGORY, 4 MISC. 2D 769, 158 N. Y. S. 2D 221
(1957), TO THE TYPIST, AND TO THE OFFICE WORKER, AS WELL AS TO THE
PERSON WHO DIRECTLY PARTICIPATES IN THE FORMULATION AND EXECUTION OF
IMPORTANT STATE POLICY.  THE CITIZENSHIP RESTRICTION SWEEPS
INDISCRIMINATELY.  VIEWING THE ENTIRE CONSTITUTIONAL AND STATUTORY
FRAMEWORK IN THE LIGHT OF THE STATE'S ASSERTED INTEREST, THE GREAT
BREADTH OF THE REQUIREMENT IS EVEN MORE EVIDENT.  SECTIONS 35 AND 41 OF
THE CIVIL SERVICE LAW, RELATING GENERALLY TO PERSONS HOLDING ELECTIVE
AND HIGH APPOINTIVE OFFICES, CONTAIN NO CITIZENSHIP RESTRICTIONS. 
INDEED, EVEN ^ 53 PERMITS AN ALIEN TO HOLD A CLASSIFIED CIVIL SERVICE
POSITION UNDER CERTAIN CIRCUMSTANCES.  IN VIEW OF THE BREADTH AND
IMPRECISION OF ^ 53 IN THE CONTEXT OF THE STATE'S INTEREST, WE CONCLUDE
THAT THE STATUTE DOES NOT WITHSTAND CLOSE JUDICIAL SCRUTINY.     B.
APPELLANTS FURTHER CONTEND, HOWEVER, THAT THE STATE'S LEGITIMATE
INTEREST IS GREATER THAN SIMPLY LIMITING TO CITIZENS THOSE HIGH PUBLIC
OFFICES THAT HAVE TO DO WITH THE FORMULATION AND EXECUTION OF STATE
POLICY.  UNDERSTANDABLY RELYING ON THIS COURT'S DECISIONS IN CRANE V.
NEW YORK, 239 U. S. 195 (1915), HEIM V. MC CALL, 239 U. S. 175 (1915),
AND CLARKE V. DECKEBACH, 274 U. S. 392 (1927), APPELLANTS ARGUE THAT A
STATE CONSTITUTIONALLY MAY CONFINE PUBLIC EMPLOYMENT TO CITIZENS.  MR.
JUSTICE (THEN JUDGE) CARDOZO ACCEPTED THIS "SPECIAL PUBLIC INTEREST"
ARGUMENT BECAUSE OF THE STATE'S CONCERN WITH "THE RESTRICTION OF THE
RESOURCES OF THE STATE TO THE ADVANCEMENT AND PROFIT OF THE MEMBERS OF
THE STATE."  PEOPLE V. CRANE, 214 N. Y. 154, 161, 108 N. E. 427, 429
(1915), AFF'D, 239 U. S. 195.  WE REJECTED THAT APPROACH, HOWEVER, IN
THE CONTEXT OF PUBLIC ASSISTANCE IN GRAHAM, WHERE IT WAS OBSERVED THAT
"THE SPECIAL PUBLIC INTEREST DOCTRINE WAS HEAVILY GROUNDED ON THE
NATION THAT '(WHATEVER IS A PRIVILEGE, RATHER THAN A RIGHT MAY BE MADE
DEPENDENT UPON CITIZENSHIP.'  PEOPLE V. CRANE . . . . BUT THIS COURT
NOW HAS REJECTED THE CONCEPT THAT CONSTITUTIONAL RIGHTS TURN UPON
WHETHER A GOVERNMENTAL BENEFIT IS CHARACTERIZED AS A 'RIGHT' OR AS A
'PRIVILEGE.'"  403 U. S., AT 374.  SEE ALSO SHERBERT V. VERNER, 374 U.
S. 398, 404 (1963); SHAPIRO V. THOMPSON, 394 U. S. 618, 627 N. 6
(1969); GOLDBERG V. KELLY, 397 U. S. 254, 262 (1970); BELL V. BURSON,
402 U. S. 535, 539 (1971). 

APPELLANTS ARGUE THAT OUR REJECTION OF THE SPECIAL-PUBLIC-INTEREST
DOCTRINE IN A PUBLIC ASSISTANCE CASE DOES NOT REQUIRE ITS REJECTION
HERE.  THAT THE DOCTRINE HAS PARTICULAR APPLICABILITY WITH REGARD TO
PUBLIC EMPLOYMENT IS DEMONSTRATED, ACCORDING TO APPELLANTS, BY THE
DECISIONS IN CRANE AND HEIM THAT UPHELD, UNDER FOURTEENTH AMENDMENT
CHALLENGE, THOSE PROVISIONS OF THE NEW YORK LABOR LAW THAT CONFINED
EMPLOYMENT ON PUBLIC WORKS TO CITIZENS OF THE UNITED STATES.  /11/  SEE
M. KONVITZ, THE ALIEN AND THE ASIATIC IN AMERICAN LAW, C. 6 (1946). 

WE PERCEIVE NO BASIS FOR HOLDING THE SPECIAL-PUBLIC-INTEREST
DOCTRINE INAPPLICABLE IN GRAHAM AND YET APPLICABLE AND CONTROLLING
HERE.  A RESIDENT ALIEN MAY RESIDE LAWFULLY IN NEW YORK FOR A LONG
PERIOD OF TIME.  HE MUST PAY TAXES.  AND HE IS SUBJECT TO SERVICE IN
THIS COUNTRY'S ARMED FORCES.  50 U.S.C. APP. ^ 454 (A).  SEE ASTRUP V.
IMMIGRATION SERVICE, 402 U. S. 509 (1971).  THE DOCTRINE, ROOTED AS IT
IS IN THE CONCEPTS OF PRIVILEGE AND OF THE DESIRABILITY OF CONFINING
THE USE OF PUBLIC RESOURCES, HAS NO APPLICABILITY IN THIS CASE.  TO THE
EXTENT THAT CRANE, HEIM, AND CLARKE V. DECKEBACH INTIMATE OTHERWISE,
THEY WERE WEAKENED BY THE DECISIONS IN TAKAHASHI AND GRAHAM, AND ARE
NOT TO BE CONSIDERED AS CONTROLLING HERE. 

C. THE STATE WOULD TENDER OTHER JUSTIFICATIONS FOR ^ 53'S BAR TO
EMPLOYMENT OF ALIENS IN THE COMPETITIVE CIVIL SERVICE.  IT IS SAID THAT
CAREER CIVIL SERVICE IS INTENDED FOR THE LONG-TERM EMPLOYEE, AND THAT
THE ALIEN, WHO IS SUBJECT TO DEPORTATION AND, AS WELL, TO CONSCRIPTION
BY HIS OWN COUNTRY, IS LIKELY TO REMAIN ONLY TEMPORARILY IN A CIVIL
SERVICE POSITION.  WE FULLY AGREE WITH THE DISTRICT COURT'S RESPONSE TO
THIS CONTENTION: 

"THERE IS NO OFFER OF PROOF ON THIS ISSUE AND (APPELLANTS) WOULD BE
HARD PRESSED TO DEMONSTRATE THAT A PERMANENT RESIDENT ALIEN WHO HAS
RESIDED IN NEW YORK OR THE SURROUNDING AREA FOR A NUMBER OF YEARS, AS
HAVE (APPELLEES), AND WHOSE FAMILY ALSO RESIDES HERE, WOULD BE A POORER
RISK FOR A CAREER POSITION IN NEW YORK . . . THAN AN AMERICAN CITIZEN
WHO, PRIOR TO HIS EMPLOYMENT WITH THE CITY OR STATE HAD BEEN RESIDING
IN ANOTHER STATE."  339 F. SUPP., AT 909. 

APPELLANTS FURTHER ASSERT THAT EMPLOYMENT OF ALIENS IN THE CAREER
CIVIL SERVICE WOULD BE INEFFICIENT, FOR WHEN ALIENS EVENTUALLY LEAVE
THEIR POSITIONS, THE STATE WILL HAVE THE EXPENSE OF HIRING AND TRAINING
REPLACEMENTS.  EVEN IF WE COULD ACCEPT THE PREMISE UNDERLYING THIS
ARGUMENT--THAT ALIENS ARE MORE LIKELY TO LEAVE THEIR WORK THAN CITIZENS
-AND ASSUMING THAT THIS RATIONALE COULD BE LOGICALLY CONFINED TO THE
CLASSIFIED COMPETITIVE CIVIL SERVICE, THE STATE'S SUGGESTION DOES NOT
WITHSTAND EXAMINATION.  AS WE STATED IN GRAHAM, NOTING THE GENERAL
IDENTITY OF AN ALIEN'S OBLIGATIONS WITH THOSE OF A CITIZEN, THE
"'JUSTIFICATION OF LIMITING EXPENSES IS PARTICULARLY INAPPROPRIATE AND
UNREASONABLE WHEN THE DISCRIMINATED CLASS CONSISTS OF ALIENS.'"  403 U.
S., AT 376. 

WE HOLD THAT ^ 53, WHICH DENIES ALL ALIENS THE RIGHT TO HOLD
POSITIONS IN NEW YORK'S CLASSIFIED COMPETITIVE CIVIL SERVICE, VIOLATES
THE FOURTEENTH AMENDMENT'S EQUAL PROTECTION GUARANTEE.  /12/ 

BECAUSE OF THIS CONCLUSION, WE NEED NOT REACH THE ISSUE WHETHER THE
CITIZENSHIP RESTRICTION IS IN CONFLICT WITH CONGRESS' COMPREHENSIVE
REGULATION OF IMMIGRATION AND NATURALIZATION.  SEE GRAHAM V.
RICHARDSON, 403 U. S., AT 376 - 380. 

        IV 

WHILE WE RULE THAT SEC. 53 IS UNCONSTITUTIONAL, WE DO NOT HOLD THAT
ON THE BASIS OF AN INDIVIDUALIZED DETERMINATION, AN ALIEN MAY NOT BE
REFUSED, OR DISCHARGED FROM, PUBLIC EMPLOYMENT, EVEN ON THE BASIS OF
NONCITIZENSHIP, IF THE REFUSAL TO HIRE, OR THE DISCHARGE, RESTS ON
LEGITIMATE STATE INTERESTS THAT RELATE TO QUALIFICATIONS FOR A
PARTICULAR POSITION OR TO THE CHARACTERISTICS OF THE EMPLOYEE.  WE HOLD
ONLY THAT A FLAT BAN ON THE EMPLOYMENT OF ALIENS IN LEGITIMATE
INTEREST, CANNOT WITHSTAND SCRUTINY UNDER THE FOURTEENTH AMENDMENT. 

NEITHER DO WE HOLD THAT A STATE MAY NOT, IN AN APPROPRIATELY DEFINED
CLASS OF POSITIONS, REQUIRE CITIZENSHIP AS A QUALIFICATION FOR OFFICE. 
JUST AS "THE FRAMERS OF THE CONSTITUTION INTENDED THE STATES TO KEEP
FOR THEMSELVES, AS PROVIDED IN THE TENTH AMENDMENT, THE POWER TO
REGULATE ELECTIONS," OREGON V. MITCHELL, 400 U. S. 112, 124 - 125
(1970) (FOOTNOTE OMITTED) (OPINION OF BLACK, J.); SEE ID., AT 201
(OPINION OF HARLAN J.), AND ID., AT 293 - 294 (OPINION OF STEWART, J.),
"(EACH STATE HAS THE POWER TO PRESCRIBE THE QUALIFICATIONS OF ITS
OFFICERS AND THE MANNER IN WHICH THEY SHALL BE CHOSEN."  BOYD V.
THAYER, 143 U. S. 135, 161 (1892).  SEE LUTHER V. BORDEN, 7 HOW.  1, 41
(1849); POPE V. WILLIAMS, 193 U. S. 621, 632 - 633 (1904).  SUCH POWER
INHERES IN THE STATE BY VIRTUE OF ITS OBLIGATION, ALREADY NOTED ABOVE,
"TO PRESERVE THE BASIC CONCEPTION OF A POLITICAL COMMUNITY."  DUNN V.
BLUMSTEIN, 405 U. S., AT 344.  AND THIS POWER AND RESPONSIBILITY OF THE
STATE APPLIES, NOT ONLY TO THE QUALIFICATIONS OF VOTERS, BUT ALSO TO
PERSONS HOLDING STATE ELECTIVE OR IMPORTANT NONELECTIVE EXECUTIVE,
LEGISLATIVE, AND JUDICIAL POSITIONS, FOR OFFICERS WHO PARTICIPATE
DIRECTLY IN THE FORMULATION, EXECUTION, OR REVIEW OF BROAD PUBLIC
POLICY PERFORM FUNCTIONS THAT GO TO THE HEART OF REPRESENTATIVE
GOVERNMENT.  THERE, AS JUDGE LUMBARD PHRASED IT IN HIS SEPARATE
CONCURRENCE, IS "WHERE CITIZENSHIP BEARS SOME RATIONAL RELATIONSHIP TO
THE SPECIAL DEMANDS OF THE PARTICULAR POSITION."  339 F. SUPP., AT
911. 

WE HAVE HELD, OF COURSE, THAT SUCH STATE ACTION, PARTICULARLY WITH
RESPECT TO VOTER QUALIFICATIONS, IS NOT WHOLLY IMMUNE FROM SCRUTINY
UNDER THE EQUAL PROTECTION CLAUSE.  SEE, FOR EXAMPLE, KRAMER V. UNION
SCHOOL DISTRICT, 395 U. S. 621 (1969).  BUT OUR SCRUTINY WILL NOT BE SO
DEMANDING WHERE WE DEAL WITH MATTERS RESTING FIRMLY WITHIN A STATE'S
CONSTITUTIONAL PREROGATIVES.  ID., AT 625; CARRINGTON V. RASH, 380 U.
S. 89, 91 (1965).  THIS IS NO MORE THAN A RECOGNITION OF A STATE'S
HISTORICAL POWER TO EXCLUDE ALIENS FROM PARTICIPATION IN ITS DEMOCRATIC
POLITICAL INSTITUTIONS, POPE V. WILLIAMS, 193 U. S., AT 632 - 634; BOYD
V. THAYER, 143 U. S., AT 161, AND A RECOGNITION OF A STATE'S
CONSTITUTIONAL RESPONSIBILITY FOR THE ESTABLISHMENT AND OPERATION OF
ITS OWN GOVERNMENT, AS WELL AS THE QUALIFICATIONS OF AN APPROPRIATELY
DESIGNATED CLASS OF PUBLIC OFFICE HOLDERS.  /13/  U. S. CONST. ART. IV,
^ 4; U. S. CONST. AMDT. X; LUTHER V. BORDEN, SUPRA; SEE IN RE DUNCAN,
139 U. S. 449, 461 (1891).  THIS COURT HAS NEVER HELD THAT ALIENS HAVE
A CONSTITUTIONAL RIGHT TO BOTE OR TO HOLD HIGH PUBLIC OFFICE UNDER THE
EQUAL PROTECTION CLAUSE.  INDEED, IMPLICIT IN MANY OF THIS COURT'S
VOTING RIGHTS DECISIONS IS THE NOTION THAT CITIZENSHIP IS A PERMISSIBLE
CRITERION FOR LIMITING SUCH RIGHTS.  KRAMER V. UNION SCHOOL DISTRICT,
395 U. S., AT 625; REYNOLDS V. SIMS, 377 U. S. 533, 567, 568 (1964);
HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U. S. 663, 666 - 667 (1966);
CARRINGTON V. RASH, 380 U. S., AT 91, 93 - 94, 96; LASSITER V.
NORTHAMPTOM ELECTION BOARD, 360 U. S. 45, 50 - 51 (1959); MASON V.
MISSOURI, 179 U. S. 328, 335 (1900).  A RESTRICTION ON THE EMPLOYMENT
OF NONCITIZENS, NARROWLY CONFINED, COULD HAVE PARTICULAR RELEVANCE TO
THIS IMPORTANT STATE RESPONSIBILITY, FOR ALIENAGE ITSELF IS A FACTOR
THAT REASONABLY COULD BE EMPLOYED IN DEFINING "POLITICAL COMMUNITY." 

THE JUDGMENT OF THE DISTRICT COURT IS

         AFFIRMED. 

/1/  THE RESTRICTION HAS ITS STATUTORY SOURCE IN LAWS OF NEW YORK,
1939, C. 767, ^ 1.  WE ARE ADVISED THAT THE LEGISLATION WAS DECLARATIVE
OF AN ADMINISTRATIVE PRACTICE THAT HAD EXISTED FOR MANY YEARS.  TR. OF
ORAL ARG. 43, 45. 

TEMPORARY EXCEPTION TO THE CITIZENSHIP REQUIREMENT: 

"2. NOTWITHSTANDING ANY OF THE PROVISIONS OF THIS CHAPTER OR OF ANY
OTHER LAW, WHENEVER A DEPARTMENT HEAD OR APPOINTING AUTHORITY DEEMS
THAT AN ACUTE SHORTAGE OF EMPLOYEES EXISTS IN ANY PARTICULAR CLASS OR
CLASSES OF POSITIONS BY REASON OF A LACK OF A SUFFICIENT NUMBER OF
QUALIFIED PERSONNEL AVAILABLE FOR RECRUITMENT, HE MAY PRESENT EVIDENCE
THEREOF TO THE STATE OR MUNICIPAL CIVIL SERVICE COMMISSION HAVING
JURISDICTION WHICH, AFTER DUE INQUIRY, MAY DETERMINE THE EXISTENCE OF
SUCH SHORTAGE AND WAIVE THE CITIZENSHIP REQUIREMENT FOR APPOINTMENT TO
SUCH CLASS OR CLASSES OF POSITIONS.  THE STATE COMMISSION OR SUCH
MUNICIPAL COMMISSION, AS THE CASE MAY BE, SHALL ANNUALLY REVIEW EACH
SUCH WAIVER OF THE CITIZENSHIP REQUIREMENT, AND SHALL REVOKE ANY SUCH
WAIVER WHENEVER IT FINDS THAT A SHORTAGE NO LONGER EXISTS.  A NON
CITIZEN APPOINTED PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL NOT
BE ELIGIBLE FOR CONTINUED EMPLOYMENT UNLESS HE DILIGENTLY PROSECUTES
THE PROCEDURES FOR CITIZENSHIP." 

IT IS TO BE OBSERVED THAT AN APPOINTMENT UNDER THIS EXCEPTION
PERMITS THE ALIEN TO CONTINUE HIS EMPLOYMENT ONLY UNTIL, ON ANNUAL
REVIEW, IT IS DEEMED THAT "A SHORTAGE NO LONGER EXISTS."  AND, IN ANY
EVENT, THE ALIEN "SHALL NOT BE ELIGIBLE FOR CONTINUED EMPLOYMENT UNLESS
HE DILIGENTLY PROSECUTES THE PROCEDURES FOR CITIZENSHIP." 

/2/  THE COURT FOUND JURISDICTION IN THE CIVIL RIGHTS STATUTES, 28
U.S.C. ^^ 1343 (3) AND (4).  339 F. SUPP. 906, 907 N. 5.  IT HELD THAT
THE SUIT WAS PROPERLY MAINTAINABLE AS A CLASS ACTION AND DEFINED THE
CLASS AS CONSISTING OF "ALL PERMANENT RESIDENT ALIENS RESIDING IN NEW
YORK STATE WHO, BUT FOR THE ENFORCEMENT OF SECTION 53, WOULD OTHERWISE
BE ELIGIBLE TO COMPETE FOR EMPLOYMENT IN THE COMPETITIVE CLASS OF CIVIL
SERVICE."  ID., AT 907 N. 4. 

/3/  AFFIDAVIT OF HAROLD O. BASDEN, DIRECTOR OF PERSONNEL OF THE
HUMAN RESOURCES ADMINISTRATION, APP. 31 - 33. 

/4/  SECTION 45 OF THE NEW YORK CIVIL SERVICE LAW, APPLICABLE TO
EMPLOYEES OF A PRIVATE INSTITUTION ACQUIRED BY THE STATE OR A PUBLIC
AGENCY, CONTAINS A RESTRICTION, SIMILAR TO THAT IN ^ 53 (1), AGAINST
THE EMPLOYMENT OF AN ALIEN IN A POSITION CLASSIFIED IN THE COMPETITIVE
CLASS. 

/5/  THE APPELLANTS IN THEIR ANSWER ALLEGED THAT APPELLEE CASTRO WAS
TERMINATED FOR THE ADDITIONAL REASON THAT SHE LACKED SUFFICIENT
EXPERIENCE TO QUALIFY FOR THE POSITION OF SENIOR HUMAN RESOURCES
TECHNICIAN.  APP. 49.  THE THREE-JUDGE COURT IN ITS ORDER, APP. 93,
EXCLUDED APPELLEE CASTRO FROM THE RECOGNIZED CLASS.  THAT EXCLUSION IS
NOT CONTESTED HERE. 

/6/  BRIEF FOR APPELLANTS 17. 

/7/  ID., AT 22. 

/8/  ID., AT 23. 

/9/  IBID. 

/10/  ID., AT 13. 

/11/  IN THE PAST, THE COURT HAS INVOKED THE SPECIAL-PUBLIC-INTEREST
DOCTRINE TO UPHOLD STATUTES THAT, IN THE ABSENCE OF OVERRIDING
TREATIES, LIMIT THE RIGHT OF NONCITIZENS TO EXPLOIT A STATE'S NATURAL
RESOURCES, MC CREADY V. VIRGINIA, 94 U. S. 391 (1877), PATSONE V.
PENNSYLVANIA, 232 U. S. 138 (1914); TO INHERIT REAL PROPERTY,
HAUENSTEIN V. LYNHAM, 100 U. S. 483 (1880), BLYTHE V. HINCKLEY, 180 U.
S. 333 (1901); AND TO ACQUIRE AND OWN LAND, TERRACE V. THOMPSON, 263 U.
S. 197 (1923), PORTERFIELD V. WEBB, 263 U. S. 225 (1923), WEBB V.
O'BRIEN, 263 U. S. 313 (1923), FRICK V. WEBB, 263 U. S. 326 (1923); BUT
SEE OYAMA V. CALIFORNIA, 332 U. S. 633 (1948). 

/12/  WE ARE AWARE THAT CITIZENSHIP REQUIREMENTS ARE IMPOSED IN
CERTAIN ASPECTS OF THE FEDERAL SERVICE.  SEE 5 U.S.C. ^ 3301; EXEC.
ORDER NO. 10577, 19 FED. REG. 7521, ^ 2.1 (1954); 5 CFR ^^ 338.101,
302.203 (G) (1973); AND, FOR EXAMPLE, TREASURY, POSTAL SERVICE, AND
GENERAL GOVERNMENT APPROPRIATION ACT, 1972, ^ 602, PUB. L. 91 - 49, 85
STAT. 122, AND PUBLIC WORKS APPROPRIATIONS ACT, 1971, ^ 502, PUBL L. 91
- 439, 84 STAT. 902.  IN DECIDING THE PRESENT CASE, WE INTIMATE NO VIEW
AS TO WHETHER THESE FEDERAL CITIZENSHIP REQUIREMENTS ARE OR ARE NOT
SUSCEPTIBLE OF CONSTITUTIONAL CHALLENGE.  SEE FALIL V. HAMPTON, 148 U.
S. APP. D. C. 415, 460 F. 2D 923, CERT. DENIED, 409 U. S. 887 (1972). 
COMMENT, ALIENS AND THE CIVIL SERVICE:  A CLOSED DOOR?, 61 GEO. L. J.
207 (1972). 

/13/  IN CONGRESSIONAL DEBATES LEADING TO THE ADOPTION OF THE
FOURTEENTH AMENDMENT, THERE IS CLEAR EVIDENCE THAT CONGRESS NOT ONLY
KNEW THAT AS A MATTER OF LOCAL PRACTICE ALIENS HAD NOT BEEN GRANTED THE
RIGHT TO VOTE, BUT THAT UNDER THE AMENDMENT THEY DID NOT RECEIVE A
CONSTITUTIONAL RIGHT OF SUFFRAGE OR A CONSTITUTIONAL RIGHT TO
PARTICIPATE IN THE POLITICAL PROCESS OF STATE GOVERNMENT, AND THAT,
INDEED, THE RIGHT TO VOTE AND THE CONCOMITANT RIGHT OF PARTICIPATION IN
THE POLITICAL PROCESS WERE MATTERS OF LOCAL LAW.  CONG. GLOBE, 39TH
CONG., 1ST SESS., 141 - 142, 2766 - 2767 (1866).     IT IS NOTEWORTHY,
AS WELL, THAT THE 40TH CONGRESS CONSIDERED AND VERY NEARLY PROPOSED A
VERSION OF THE FIFTEENTH AMENDMENT THAT EXPRESSLY WOULD HAVE PROHIBITED
DISCRIMINATORY QUALIFICATIONS NOT ONLY FOR VOTING BUT ALSO FOR HOLDING
OFFICE.  THE PROVISION WAS STRUCK IN CONFERENCE.  IT IS EVIDENT FROM
THE DEBATE THAT, FOR WHATEVER MOTIVE, ITS OPPONENTS WANTED THE STATES
TO RETAIN CONTROL OVER THE QUALIFICATIONS FOR OFFICE.  CONG. GLOBE,
40TH CONG., 3D SESS., AT 1425 - 1426, 1623 - 1633 (1869).  AND, OF
COURSE, THE FIFTEENTH AMENDMENT APPLIES BY ITS TERMS ONLY TO
"CITIZENS. 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE COURT IN THESE TWO CASES HOLDS THAT AN ALIEN IS NOT REALLY
DIFFERENT FROM A CITIZEN, AND THAT ANY LEGISLATIVE CLASSIFICATION ON
THE BASIS OF ALIENAGE IS "INHERENTLY SUSPECT".  THE FOURTEENTH
AMENDMENT, THE EQUAL PROTECTION CLAUSE OF WHICH THE COURT INTERPRETS AS
INVALIDATING THE STATE LEGISLATION HERE INVOLVED, CONTAINS NO LANGUAGE
CONCERNING "INHERENTLY SUSPECT CLASSIFICATIONS," OR, FOR THAT MATTER,
MERELY "SUSPECT CLASSIFICATIONS."  THE PRINCIPAL PURPOSE OF THOSE WHO
DRAFTED AND ADOPTED THE AMENDMENT WAS TO PROHIBIT THE STATES FROM
INVIDIOUSLY DISCRIMINATING BY REASON OF RACE, SLAUGHTER-HOUSE CASES, 16
WALL.  36 (1873), AND BECAUSE OF THIS PLAINLY MANIFESTED INTENT,
CLASSIFICATIONS BASED ON RACE HAVE RIGHTLY BEEN HELD "SUSPECT" UNDER
THE AMENDMENT.  BUT THERE IS NO LANGUAGE USED IN THE AMENDMENT, OR ANY
HISTORICAL EVIDENCE AS TO THE INTENT OF THE FRAMERS, WHICH WOULD
SUGGEST TO THE SLIGHTEST DEGREE THAT IT WAS INTENDED TO RENDER ALIENAGE
A "SUSPECT" CLASSIFICATION, THAT IT WAS DESIGNED IN ANY WAY TO PROTECT
"DISCRETE AND INSULAR MINORITIES"  OTHER THAN RACIAL MINORITIES, OR
THAT IT WOULD IN ANY WAY JUSTIFY THE RESULT REACHED BY THE COURT IN
THESE TWO CASES. 

TWO FACTUAL CONSIDERATIONS DESERVE MORE EMPHASIS THAN ACCORDED BY
THE COURT'S OPINIONS.  FIRST, THE RECORDS IN NOS. 71 - 1222 AND 71 -
1336 CONTAIN NO INDICATION THAT THE ALIENS SUFFERED ANY DISABILITY THAT
PRECLUDED THEM, EITHER AS A GROUP OR INDIVIDUALLY, FROM APPLYING FOR
AND BEING GRANTED THE STATUS OF NATURALIZED CITIZENS.  THE APPELLEES IN
NO. 71 - 1222, AS FAR AS THE RECORD DISCLOSES, TOOK NO STEPS TO OBTAIN
CITIZENSHIP OR INDICATE ANY AFFIRMATIVE DESIRE TO BECOME CITIZENS.  IN
NO. 71 - 1336, APPELLANT WAS ELIGIBLE FOR NATURALIZATION BUT "ELECTED
TO REMAIN A CITIZEN OF THE NETHERLANDS,"  162 CONN. 249, 250, 294 A. 2D
281, 282, AND DELIBERATELY SHOSE NOT TO FILE A DECLARATION OF INTENT
UNDER 8 U.S.C. ^^ 1427 (F), 1430 (A).  THE "STATUS" OF THESE
INDIVIDUALS WAS NOT, THEREFORE, ONE WITH WHICH THEY WERE FOREVER
ENCUMBERED; THEY COULD TAKE STEPS TO ALTER IT WHEN AND IF THEY CHOSE. 
/1/ 

SECOND, THE APPELLEES IN NO. 71 - 1222 ALL SOUGHT TO BE EMPLOYEES OF
ADMINISTRATIVE AGENCIES OF THE NEW YORK CITY GOVERNMENT.  OF THE 20
MEMBERS OF THE CLASS REPRESENTED BY THE NAMED APPELLEES, THREE WERE
TYPISTS, ONE A "SENIOR CLERK," TWO "HUMAN RESOURCES TECHNICIANS," THREE
"SENIOR HUMAN RESOURCES TECHNICIANS," SIX "HUMAN RESOURCE SPECIALISTS,"
THREE "SENIOR HUMAN RESOURCES SPECIALISTS," AND TWO "SUPERVISING HUMAN
RESOURCE SPECIALISTS."  THE RECORD DOES NOT REVEAL WHAT FUNCTIONS ARE
PERFORMED BY THESE CIVIL SERVANTS, ALTHOUGH APPELLEE DOUGALL APPARENTLY
WAS THE CHIEF ADMINISTRATOR OF A PROGRAM; THE REMAINING APPELLEES WERE
ALL EMPLOYEES OF THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, THE
GOVERNMENTAL BODY WITH NUMEROUS EMPLOYEES WHICH ADMINISTERS MANY TYPES
OF SOCIAL WELFARE PROGRAMS, SPENDING A GREAT DEAL OF MONEY AND DEALING
CONSTANTLY WITH THE PUBLIC AND OTHER ARMS OF THE FEDERAL, STATE, AND
LOCAL GOVERNMENTS. 

        I 

THE COURT, BY HOLDING IN THESE CASES AND IN GRAHAM V. RICHARDSON,
403 U. S. 365 (1971), THAT A CITIZEN-ALIEN CLASSIFICATION IS "SUSPECT"
IN THE EYES OF OUR CONSTITUTION, FAILS TO MENTION, LET ALONE
RATIONALIZE, THE FACT THAT THE CONSTITUTION ITSELF RECOGNIZES A BASIC
DIFFERENCE BETWEEN CITIZENS AND ALIENS.  THAT DISTINCTION IS
CONSTITUTIONALLY IMPORTANT IN NO LESS THAN 11 INSTANCES IN A POLITICAL
DOCUMENT NOTED FOR ITS BREVITY.  REPRESENTATIVES, U. S. CONST. ART. I,
^ 2, CL. 2, AND SENATORS, ART. I, SEC. 3, CL. 3 MUST BE CITIZENS. 
CONGRESS HAS THE AUTHORITY "(TO ESTABLISH AN UNIFORM RULE OF
NATURALIZATION" BY WHICH ALIENS CAN BECOME CITIZEN MEMBERS OF OUR
SOCIETY, ART. I, ^ 8, CL. 4; THE JUDICIAL AUTHORITY OF THE FEDERAL
COURTS EXTENDS TO SUITS INVOLVING CITIZENS OF THE UNITED STATES "AND
FOREIGN STATES, CITIZENS OR SUBJECTS," ART. III, ^ 2, CL. 1, BECAUSE
SOMEHOW THE PARTIES ARE "DIFFERENT," A DISTINCTION FURTHER MADE BY THE
ELEVENTH AMENDMENT; THE FIFTEENTH, NINETEENTH, TWENTY-FOURTH, AND
TWENTY-SIXTH AMENDMENTS ARE RELEVANT ONLY TO "CITIZENS."  THE PRESIDENT
MUST NOT ONLY BE A CITIZEN BUT "A NATURAL BORN CITIZEN,"  ART. II, ^ 1,
CL. 5.  ONE MIGHT SPECULATE WHAT MEANING ART. IV, ^ 2, CL. 1, HAS
TODAY. 

NOT ONLY DO THE NUMEROUS CLASSIFICATIONS ON THE BASIS OF CITIZENSHIP
THAT ARE SET FORTH IN THE CONSTITUTION CURB AGAINST BOTH THE ANALYSIS
USED AND THE RESULTS REACHED BY THE COURT IN THESE CASES; THE VERY
AMENDMENT WHICH THE COURT READS TO PROHIBIT CLASSIFICATIONS BASED ON
CITIZENSHIP ESTABLISHES THE VERY DISTINCTION WHICH THE COURT NOW
CONDEMNS AS "SUSPECT."  THE FIRST SENTENCE OF THE FOURTEENTH AMENDMENT
PROVIDES: 

     "ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES AND

  SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED

  STATES AND OF THE STATE WHEREIN THEY RESIDE." 

IN CONSTITUTIONALLY DEFINING WHO IS A CITIZEN OF THE UNITED STATES,
CONGRESS OBVIOUSLY THOUGHT IT WAS DOING SOMETHING, AND SOMETHING
IMPORTANT.  CITIZENSHIP MEANT SOMETHING, A STATUS IN AND RELATIONSHIP
WITH A SOCIETY WHICH IS CONTINUING AND MORE BASIC THAN MERE PRESENCE OR
RESIDENCE.  THE LANGUAGE OF THAT AMENDMENT CAREFULLY DISTINGUISHES
BETWEEN "PERSONS" WHO, WHETHER BY BIRTH OR NATURALIZATION, HAD ACHIEVED
A CERTAIN STATUS, AND "PERSONS" IN GENERAL.  THAT A "CITIZEN" WAS
CONSIDERED BY CONGRESS TO BE A RATIONALLY DISTINCT SUBCLASS OF ALL
"PERSONS" IS OBVIOUS FROM THE LANGUAGE OF THE AMENDMENT. 

IT IS UNNECESSARY TO VENTURE INTO A DETAILED DISCUSSION OF WHAT
CONGRESS INTENDED BY THE CITIZENSHIP CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE PARAMOUNT REASON WAS TO AMEND THE CONSTITUTION SO AS TO
OVERRULE EXPLICITLY THE DRED SCOTT DECISION.  SCOTT V. SANDFORD, 19
HOW.  393 (1857).  OUR DECISIONS CONSTRUING "THE PRIVILEGES OR
IMMUNITIES OF CITIZENS OF THE UNITED STATES" ARE NOT IRRELEVANT TO THE
QUESTION NOW BEFORE THE COURT, INSOFAR AS THEY RECOGNIZE THAT THERE ARE
ATTRIBUTES PECULIAR TO THE STATUS OF FEDERAL CITIZENSHIP.  SEE, E. G.
SLAUGHTER-HOUSE CASES, 16 WALL., AT 79; UNITED STATES V. CRUIKSHANK, 92
U. S. 542 (1876); EX PARTE YARBROUGH, 110 U. S. 651 (1884); CRUTCHER V.
KENTUCKY, 141 U. S. 47 (1891); LOGAN V. UNITED STATES, 144 U. S. 263
(1892); IN RE QUARLES, 158 U. S. 532 (1895).  CF. CRANDALL V. NEVADA, 6
WALL.  35 (1868).  DECISIONS OF THIS COURT HOLDING THAT AN ALIEN IS A
"PERSON" WITHIN THE MEANING OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT ARE SIMPLY IRRELEVANT TO THE QUESTION OF WHETHER
THAT AMENDMENT PROHIBITS LEGISLATIVE CLASSIFICATIONS BASED UPON THIS
PARTICULAR STATUS.  SINCE THAT AMENDMENT BY ITS OWN TERMS FIRST DEFINED
THOSE WHO HAD THE STATUS AS A LESSER INCLUDED CLASS OF ALL "PERSONS,"
THE COURT'S FAILURE TO ARTICULATE WHY SUCH CLASSIFICATIONS UNDER THE
SAME AMENDMENT ARE NOW FORBIDDEN SERVES ONLY TO ILLUMINATE THE ABSENCE
OF ANY CONSTITUTIONAL FOUNDATION FOR THESE INSTANT DECISIONS. 

THIS COURT HAS HELD TIME AND AGAIN THAT LEGISLATIVE CLASSIFICATIONS
ON THE BASIS OF CITIZENSHIP WERE SUBJECT TO THE RATIONAL-BASIS TEST OF
EQUAL PROTECTION, AND THAT THE JUSTIFICATIONS THEN ADVANCED FOR THE
LEGISLATION WERE RATIONAL.  SEE CLARKE V. DECKEBACH, 274 U. S. 392
(1927); TERRACE V. THOMPSON, 263 U. S. 197 (1923); PORTERFIELD V. WEBB,
263 U. S. 225 (1923); WEBB V. O'BRIEN, 263 U. S. 313 (1923); FRICK V.
WEBB, 263 U. S. 326 (1923); PATSONE V. PENNSYLVANIA, 232 U. S. 138
(1914); BLYTHE V. HINCKLEY, 180 U. S. 333 (1901); HAUENSTEIN V. LYNHAM,
100 U. S. 483 (1880). 

THIS COURT EXPLICITLY HELD THAT IT WAS NOT A VIOLATION OF THE EQUAL
PROTECTION CLAUSE FOR A STATE BY STATUTE TO LIMIT EMPLOYMENT ON PUBLIC
PROJECTS TO CITIZENS.  HEIM V. MC CALL, 239 U. S. 175 (1915); CRANE V.
NEW YORK, 239 U. S. 195 (1915).  EVEN IF THE COURT NOW CONSIDERS THAT
THE JUSTIFICATIONS FOR THOSE ENACTMENTS ARE "NOT CONTROLLING,"  THOSE
DECISIONS CLEARLY HOLD THAT THE RATIONAL-BASIS TEST APPLIES. 

TO REJECT THE METHODOLOGICAL APPROACH OF THESE DECISIONS, THE COURT
NOW RELIES IN PART ON THE DECISIONS IN TRUAX V. RAICH, 239 U. S. 33
(1915), AND TAKAHASHI V. FISH COMM'N, 334 U. S. 410 (1948).  IN TRUAX,
SUPRA, THE COURT INVALIDATED A STATE STATUTE WHICH PROHIBITED EMPLOYERS
OF MORE THAN FIVE PERSONS FROM EMPLOYING MORE THAN 20% NONCITIZENS. 
THE LAW WAS APPLICABLE TO ALL BUSINESSES.  IN HOLDING THAT THE LAW WAS
INVALID UNDER THE EQUAL PROTECTION CLAUSE, THE COURT TOOK PAINS TO
EXPLAIN THAT THE DECISION WAS NOT MEANT TO DISTURB PRIOR HOLDINGS, ID.,
AT 39, AND SPECIFICALLY NOTED THAT "IT SHOULD BE ADDED THAT THE ACT IS
NOT LIMITED TO PERSONS WHO ARE ENGAGED ON PUBLIC WORK OR RECEIVE THE
BENEFIT OF PUBLIC MONEYS."  ID., AT 40.  INDEED, HEIM AND CRANE WERE
DECIDED AFTER TRUAX, AS WAS CLARKE, WHICH HELD THAT A STATE COULD
CONSTITUTIONALLY PROHIBIT ALIENS FROM ENGAGING IN CERTAIN TYPES OF
BUSINESSES.  IF ANYTHING, TRUAX WAS LIMITED BY THESE LATER DECISIONS. 

TAKAHASHI, SUPRA, INVOLVED A STATUTE WHICH PROHIBITED ALIENS
"INELIGIBLE FOR CITIZENSHIP" UNDER FEDERAL LAW FROM RECEIVING
COMMERCIAL FISHING LICENSES.  A STATE WHOSE CLASSIFICATION ON THE BASIS
OF RACE WOULD HAVE BEEN LEGITIMATELY "SUSPECT" UNDER THE FOURTEENTH
AMENDMENT WAS IN EFFECT USING CONGRESS' POWER TO CLASSIFY IN GRANTING
OR WITHHOLDING CITIZENSHIP.  THE COURT DID NOT COUNTENANCE THIS ATTEMPT
AT DISCRIMINATION ON THE BASIS OF RACE "BY INCORPORATION."  TWO
FEATURES OF THAT LAW SHOULD BE NOTED.  FIRST, THE STATUTORY
CLASSIFICATION WAS NOT ONE INVOLVING CITIZENS AND ALIENS; IT CLASSIFIED
CITIZENS AND THOSE RESIDENT ALIENS ELIGIBLE FOR CITIZENSHIP INTO ONE
GROUP, AND RESIDENT ALIENS INELIGIBLE FOR CITIZENSHIP INTO ANOTHER.  NO
REASON FOR DISCRIMINATING AMONG RESIDENT ALIENS IS APPARENT.  SECOND,
AND MOST IMPORTANT, IS THE FACT THAT, ALTHOUGH THE COURT PROPERLY
REFUSED TO INQUIRE INTO THE LEGISLATIVE MOTIVE, THE OVERWHELMING EFFECT
OF THE LAW WAS TO BAR RESIDENT ALIENS OF JAPANESE ANCESTRY FROM
PROCURING FISHING LICENSES.  THE COURT WAS NOT BLIND TO THIS FACT, OR
TO HISTORY.  SEE 334 U. S., AT 412 N. 1, 413.  THE STATE STATUTE THAT
CLASSIFIES ALIENS ON THE BASIS OF COUNTRY OF ORIGIN IS MUCH MORE LIKELY
TO CLASSIFY ON THE BASIS OF RACE, AND THUS CONFLICT WITH THE CORE
PURPOSE OF THE EQUAL PROTECTION CLAUSE, THAN A STATUTE THAT, AS HERE,
MERELY DISTINGUISHES BETWEEN ALIENAGE AS SUCH AND CITIZENSHIP AS SUCH. 
TAKAHASHI DID NOT, HOWEVER OVERRULE PREVIOUS DECISIONS, AND CERTAINLY
ANNOUNCED NO "SUSPECT CLASSIFICATION" RULE WITH REGARD TO CITIZEN-ALIEN
CLASSIFICATIONS.  TO SAY THAT IT DID EVADES RATHER THAN CONFRONTS
PRECEDENT. 

THE THIRD, AND APPARENTLY PARAMOUNT, "DECISION" UPON WHICH THE COURT
RELIED IN GRAHAM, AND WHICH IS MERELY QUOTED IN THE INSTANT DECISIONS,
IS A FOOTNOTE FROM UNITED STATES V. CAROLENE PRODUCTS CO., 304 U. S.
144 (1938), A CASE INVOLVING A FEDERAL STATUTE PROHIBITING THE
INTERSTATE SHIPMENT OF FILLED MILK.  THE FOOTNOTE DISCUSSED THE
PRESUMPTION OF CONSTITUTIONALITY OF STATUTES AND STATED: 

     "NOR NEED WE ENQUIRE WHETHER SIMILAR CONSIDERATIONS ENTER INTO

  THE REVIEW OF STATUTES DIRECTED AT PARTICULAR RELIGIOUS, PIERCE

  V. SOCIETY OF SISTERS, 268 U. S. 510, OR NATIONAL, MEYER V.

  NEBRASKA, 262 U. S. 390; BARTELS V. IOWA, 262 U. S. 404;

  FARRINGTON V. TOKUSHIGE, 273 U. S. 284, OR RACIAL MINORITIES,

  NIXON V. HERNDON, (273 U. S. 536); NIXON V. CONDON, (186 U. S.

  73); WHETHER PREJUDICE AGAINST DISCRETE AND INSULAR MINORITIES

  MAY BE A SPECIAL CONDITION, WHICH TENDS SERIOUSLY TO CURTAIL THE

  OPERATION OF THOSE POLITICAL PROCESSES ORDINARILY TO BE RELIED

  UPON TO PROTECT MINORITIES, AND WHICH MAY CALL FOR A

  CORRESPONDINGLY MORE SEARCHING JUDICIAL INQUIRY."  ID., AT 152 -

  153, N. 4. 

ON THE "AUTHORITY" OF THIS FOOTNOTE, WHICH ONLY FOUR MEMBERS OF THE
COURT IN CAROLENE PRODUCTS JOINED, THE COURT IN GRAHAM MERELY STATED
THAT "CLASSIFICATIONS BASED ON ALIENAGE . . . ARE INHERENTLY SUSPECT"
BECAUSE "(ALIENS AS A CLASS ARE A PRIME EXAMPLE OF A 'DISCRETE AND
INSULAR' MINORITY . . . FOR WHOM SUCH HEIGHTENED JUDICIAL SOLICITUDE IS
APPROPRIATE."  403 U. S., AT 372. 

AS MR JUSTICE FRANKFURTER SO APTLY OBSERVED: 

"A FOOTNOTE HARDLY SEEMS TO BE AN APPROPRIATE WAY OF ANNOUNCING A
NEW CONSTITUTIONAL DOCTRINE, AND THE CAROLENE FOOTNOTE DID NOT PURPORT
TO ANNOUNCE ANY NEW DOCTRINE . . . ."  KOVACS V. COOPER, 336 U. S. 77,
90 - 91 (1949) (CONCURRING OPINION). 

EVEN IF THAT JUDICIAL APPROACH WERE ACCEPTED, HOWEVER, THE COURT IS
CONSPICUOUSLY SILENT AS TO WHY THAT "DOCTRINE" SHOULD APPLY TO THESE
CASES. 

THE FOOTNOTE ITSELF DID NOT REFER TO "SEARCHING JUDICIAL INQUIRY"
WHEN A CLASSIFICATION IS BASED ON ALIENAGE, PERHAPS BECAUSE THERE WAS A
LONG LINE OF AUTHORITY HOLDING SUCH CLASSIFICATIONS ENTIRELY CONSONANT
WITH THE FOURTEENTH AMENDMENT.  THE "NATIONAL" CATEGORY MENTIONED
INVOLVED LEGISLATIVE ATTEMPTS TO PROHIBIT EDUCATION IN LANGUAGES OTHER
THAN ENGLISH, WHICH ATTEMPTS WERE HELD UNCONSTITUTIONAL AS A
DEPRIVATION OF "LIBERTY" WITHIN THE MEANING OF THE FOURTEENTH AND FIFTH
AMENDMENTS.  THESE CASES DO NOT MENTION A "CITIZEN-ALIEN" DISTINCTION,
NOR DO THEY SUPPORT A REASONING THAT "NATIONALITY" IS THE SAME AS
"ALIENAGE."     THE MERE RECITATION OF THE WORDS "INSULAR AND DISCRETE
MINORITY" IS HARDLY A CONSTITUTIONAL REASON FOR PROHIBITING STATE
LEGISLATIVE CLASSIFICATIONS SUCH AS ARE INVOLVED HERE, AND IS NOT
NECESSARILY CONSISTENT WITH THE THEORY PROPOUNDED IN THAT FOOTNOTE. 
THE APPROACH TAKEN IN GRAHAM AND THESE CASES APPEARS TO BE THAT
WHENEVER THE COURT FEELS THAT A SOCIETAL GROUP IS "DISCRETE AND
INSULAR," IT HAS THE CONSTITUTIONAL MANDATE TO PROHIBIT LEGISLATION
THAT SOMEHOW TREATS THE GROUP DIFFERENTLY FROM SOME OTHER GROUP. 

OUR SOCIETY, CONSISTING OF OVER 200 MILLION INDIVIDUALS OF
MULTITUDINOUS ORIGINS, CUSTOMS, TONGUES, BELIEFS, AND CULTURES IS, TO
SAY THE LEAST, DIVERSE.  IT WOULD HARDLY TAKE EXTRAORDINARY INGENUITY
FOR A LAWYER TO FIND "INSULAR AND DISCRETE" MINORITIES AT EVERY TURN IN
THE ROAD.  YET, UNLESS THE COURT CAN PRECISELY DEFINE AND
CONSTITUTIONALLY JUSTIFY BOTH THE TERMS AND ANALYSIS IT USES, THESE
DECISIONS TODAY STAND FOR THE PROPOSITION THAT THE COURT CAN CHOOSE A
"MINORITY" IT "FEELS" DESERVES "SOLICITUDE" AND THEREAFTER PROHIBIT THE
STATES FROM CLASSIFYING THAT "MINORITY" DIFFERENTLY FROM THE
"MAJORITY."  I CANNOT FIND, AND THE COURT DOES NOT CITE, ANY
CONSTITUTIONAL AUTHORITY FOR SUCH A "WARD OF THE COURT" APPROACH TO
EQUAL PROTECTION. 

THE ONLY OTHER APPARENT RATIONALE FOR THE INVOCATION OF THE "SUSPECT
CLASSIFICATION" APPROACH IN THESE CASES IS THAT ALIENAGE IS A "STATUS,"
AND THE COURT DOES NOT FEEL IT "APPROPRIATE" TO CLASSIFY ON THAT
BASIS.  THIS RATIONALE WOULD APPEAR TO BE SIMILAR TO THAT UTILIZED IN
WEBER V. AETNA CASUALTY & SURETY CO., 406 U. S. 164 (1972), IN WHICH
THE COURT CITED, WITHOUT DISCUSSION, GRAHAM.  ID., AT 176 N. 14.  BUT
THERE IS A MARKED DIFFERENCE BETWEEN A STATUS OR CONDITION SUCH AS
ILLEGITIMACY, NATIONAL ORIGIN, OR RACE, WHICH CANNOT BE ALTERED BY AN
INDIVIDUAL AND THE "STATUS" OF THE APPELLANT IN NO. 71 - 1336 OR OF THE
APPELLEES IN NO. 71 - 1222.  THERE IS NOTHING IN THE RECORD INDICATING
THAT THEIR STATUS AS ALIENS CANNOT BE CHANGED BY THEIR AFFIRMATIVE
ACTS. 

        II 

IN MY VIEW, THE PROPER JUDICIAL INQUIRY IS WHETHER ANY RATIONAL
JUSTIFICATION EXISTS FOR PROHIBITING ALIENS FROM EMPLOYMENT IN THE
COMPETITIVE CIVIL SERVICE AND FROM ADMISSION TO A STATE BAR. 

"STATE LEGISLATURES ARE PRESUMED TO HAVE ACTED WITHIN THEIR
CONSTITUTIONAL POWER DESPITE THE FACT THAT, IN PRACTICE, THEIR LAWS
RESULT IN SOME INEQUALITY.  A STATUTORY DISCRIMINATION WILL NOT BE SET
ASIDE IF ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO JUSTIFY
IT."  MC GOWAN V. MARYLAND, 366 U. S. 420, 425 - 426 (1961). 

BEFORE DISCUSSING THIS QUESTION, A PRELIMINARY REFLECTION ON THE
COURT'S OPINIONS IS WARRANTED.  PERHAPS THE PORTIONS OF THE OPINIONS
THAT WOULD MOST DISTURB NATIVE-BORN CITIZENS AND ESPECIALLY NATURALIZED
CITIZENS WHO HAVE WORKED DILIGENTLY TO LEARN ABOUT OUR HISTORY, MORES,
AND POLITICAL INSTITUTIONS AND WHO HAVE SUCCESSFULLY COMPLETED THE
RIGOROUS PROCESS OF NATURALIZATION, IS THE INTIMATION, IF NOT
STATEMENT, THAT THEY ARE REALLY NOT ANY DIFFERENT FROM ALIENS.  THE
COURT CONCLUDES THAT, BECAUSE ALIENS RESIDING IN OUR COUNTRY MUST PAY
TAXES AND SOME OF THEM (BUT NOT APPELLANT IN NO. 71 - 1336) MIGHT AT
ONE TIME HAVE BEEN SUBJECT TO SERVICE IN THE ARMED FORCES, THE TWO
"GROUPS" ARE INDISTINGUISHABLE FOR PURPOSES OF EQUAL PROTECTION
ANALYSIS.  COMPULSORY MILITARY SERVICE HAS BEEN ENDED BY CONGRESS.  /2/
GIVEN THE UBIQUITY OF TAXES IN OUR PRESENT SOCIETY, IT IS, IN MY
OPINION, TOTALLY UNCONVINCING TO ATTRIBUTE TO THEIR PAYMENT THE
LEVELING SIGNIFICANCE INDICATED BY THE COURT.  IS AN ALIEN WHO, AFTER
ARRIVING FROM ABROAD IN NEW YORK CITY, IMMEDIATELY PURCHASES A PACK OF
CIGARETTES, THEREBY PAYING FEDERAL, STATE, AND CITY TAXES, REALLY NO
DIFFERENT FROM A CITIZEN? 

THE OPINION OF THE COURT IN NO. 71 - 1222 WOULD APPEAR TO ANSWER
THIS QUESTION IN THE NEGATIVE, BUT IT THEN PROCEEDS TO STATE THAT THERE
IS A DIFFERENCE BETWEEN ALIENS AND CITIZENS FOR PURPOSES OF
PARTICIPATION AND SERVICE IN THE POLITICAL ARENAS.  UNLESS THE COURT
MEANS THAT CITIZENSHIP ONLY HAS MEANING IN A POLITICAL CONTEXT, THE
ANALYTICAL APPROACH OF THE COURT IS LESS THAN CLEAR, HARDLY CONVINCING,
AND CURIOUSLY CONFLICTS WITH THE HIGH NONPOLITICAL VALUE THAT THE COURT
HAS HERETOFORE ASCRIBED TO CITIZENSHIP.  IF CITIZENSHIP IS NOT
"SPECIAL," THE COURT HAS WASTED A GREAT DEAL OF EFFORT IN THE PAST. 
CF. AFROYIM V. RUSK, 387 U. S. 253 (1967); TROP V. DULLES, 356 U. S. 86
(1958). 

THESE STATUTES DO NOT CLASSIFY ON THE BASIS OF COUNTRY OF ORIGIN;
THE DISTINCTIONS ARE NOT BETWEEN NATIVE AMERICANS AND "FOREIGNERS," BUT
BETWEEN CITIZENS AND ALIENS.  THE PROCESS OF NATURALIZATION WAS
SPECIFICALLY DESIGNED BY CONGRESS TO REQUIRE A FOREIGN NATIONAL TO
DEMONSTRATE THAT HE OR SHE IS FAMILIAR WITH THE HISTORY, TRADITIONS,
AND INSTITUTIONS OF OUR SOCIETY IN A WAY THAT A NATIVE-BORN CITIZEN
WOULD LEARN FROM FORMAL EDUCATION AND BASIC SOCIAL CONTACT.  CONGRESS
SPECIFICALLY PROVIDED THAT AN ALIEN SEEKING CITIZENSHIP STATUS MUST
DEMONSTRATE "AN UNDERSTANDING OF THE ENGLISH LANGUAGE" AND "A KNOWLEDGE
AND UNDERSTANDING OF THE FUNDAMENTALS OF THE HISTORY, AND OF THE
PRINCIPLES AND FORM OF GOVERNMENT, OF THE UNITED STATES."  8 U.S.C. ^
1423.  THE PURPOSE WAS TO MAKE THE ALIEN ESTABLISH THAT HE OR SHE
UNDERSTOOD, AND COULD BE INTEGRATED INTO, OUR SOCIAL SYSTEM. 

     "THROUGH THE SYSTEM OF CITIZENSHIP CLASSES SPONSORED BY THE

  IMMIGRATION AND NATURALIZATION SERVICE AND THE LOCAL SCHOOL

  SYSTEM, THE ALIEN IS AIDED IN PREPARING HIMSELF FOR CITIZENSHIP,

  AND EVERY EFFORT IS MADE TO GIVE HIM FUNDAMENTAL AND UNIFORM

  KNOWLEDGE OF OUR POLITICAL AND SOCIAL STRUCTURE.  IN ORDER THAT

  HE MAY INTELLIGENTLY USE THIS FUNDAMENTAL AND UNIFORM KNOWLEDGE

  AND SO THAT HE MAY BE A COMPLETE AND THOROUGHLY INTEGRATED MEMBER

  OF OUR AMERICAN SOCIETY, THE COMMITTEE (HOUSE JUDICIARY

  COMMITTEE) FEELS THAT HE SHOULD HAVE A BASIC KNOWLEDGE OF THE

 COMMON LANGUAGE OF THE COUNTRY AND BE ABLE TO READ, WRITE, AND

  SPEAK IT WITH REASONABLE FACILITY."  H. R. REP. NO. 1365, 82D

  CONG., 2D SESS., 78 (1952) (EMPHASIS ADDED). 

SEE ALSO 8 U.S.C. ^ 1424, WHICH PRECLUDES ALIENS WHO MANIFEST
CERTAIN OPPOSITION TO OUR SOCIETY OR FORM OF GOVERNMENT FROM BEING
NATURALIZED.  AN ALIEN MUST DEMONSTRATE "GOOD MORAL CHARACTER," 8
U.S.C. ^ 1427 (A) (3), WHICH WAS INTENDED BY CONGRESS TO MEAN A BROAD
"ATTACHMENT) TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED
STATES, AND (DISPOSITION) TO THE GOOD ORDER AND HAPPINESS OF THE UNITED
STATES."  H. R. REP. NO. 1365, SUPRA, AT 80.  SEE ALSO 8 CFR ^ 332B
(1973), DETAILING THE COOPERATION BETWEEN THE IMMIGRATION AND
NATURALIZATION SERVICE AND LOCAL SCHOOLS CONDUCTING CITIZENSHIP
EDUCATION FOR APPLICANTS FOR NATURALIZATION.  THE ABOVE IS SUFFICIENT
TO DEMONSTRATE, I BELIEVE, THAT CONGRESS PROVIDED THAT ALIENS SEEKING
CITIZENSHIP STATUS PROVE WHAT CITIZENS BY BIRTH ARE, AS A CLASS,
PRESUMED TO UNDERSTAND:  A BASIC FAMILIARITY WITH OUR SOCIAL AND
POLITICAL MORES AND INSTITUTIONS.  THE NATURALIZED CITIZEN HAS
DEMONSTRATED BOTH THE WILLINGNESS AND ABILITY TO INTEGRATE INTO OUR
SOCIAL SYSTEM AS A WHOLE, NOT JUST INTO OUR "POLITICAL COMMUNITY," AS
THE COURT APPARENTLY USES THE TERM.  HE PROVED THAT HE HAS BECOME
"LIKE" A NATIVEBORN CITIZEN IN WAYS THAT ALIENS, AS A CLASS, COULD BE
PRESUMED NOT TO BE.  THE COURT SIMPLY IGNORES THE PURPOSE OF THE
PROCESS OF ASSIMILATION INTO AND DEDICATION TO OUR SOCIETY THAT
CONGRESS PRESCRIBED TO MAKE ALIENS "LIKE" CITIZENS. 

IN NO. 71 - 1222, I DO NOT BELIEVE THAT IT IS IRRATIONAL FOR NEW
YORK TO REQUIRE THIS CLASS OF CIVIL SERVANTS TO BE CITIZENS, EITHER
NATURAL BORN OR NATURALIZED.  THE PROLIFERATION OF PUBLIC
ADMINISTRATION THAT OUR SOCIETY HAS WITNESSED IN RECENT YEARS, AS A
RESULT OF THE REGULATION OF CONDUCT AND THE DISPENSATION OF SERVICES
AND FUNDS, HAS VESTED A GREAT DEAL OF DE FACTO DECISIONMAKING OR
POLICYMAKING AUTHORITY IN THE HANDS OF EMPLOYEES WHO WOULD NOT BE
CONSIDERED THE TEXTBOOK EQUIVALENT OF POLICYMAKERS OF THE LEGISLATIVE
OR "TOP" ADMINISTRATIVE VARIETY.  NEVERTHELESS, AS FAR AS THE PRIVATE
INDIVIDUAL WHO MUST SEEK APPROVAL OR SERVICES IS CONCERNED, MANY OF
THESE "LOW LEVEL" CIVIL SERVANTS ARE IN FACT POLICYMAKERS.  GOLDBERG V.
KELLY, 397 U. S. 254 (1970), IMPLICITLY RECOGNIZED THAT THOSE WHO APPLY
FACTS TO INDIVIDUAL CASES ARE AS MUCH "GOVERNORS" AS THOSE WHO WRITE
THE LAWS OR REGULATIONS THE "LOW-LEVEL" ADMINISTRATOR MUST "APPLY." 
SINCE POLICYMAKING FOR A POLITICAL COMMUNITY IS NOT NECESSARILY THE
EXCLUSIVE PRESERVE OF THE LEGISLATORS, JUDGES, AND "TOP"
ADMINISTRATORS, IT IS NOT IRRATIONAL FOR THE CITY OF NEW YORK TO
PROVIDE THAT ONLY CITIZENS SHOULD BE ADMITTED TO THE COMPETITIVE CIVIL
SERVICE. 

BUT THE JUSTIFICATION OF EFFICIENT GOVERNMENT IS AN EVEN MORE
CONVINCING RATIONALE.  NATIVE-BORN CITIZENS CAN BE EXPECTED TO BE
FAMILIAR WITH THE SOCIAL AND POLITICAL INSTITUTIONS OF OUR SOCIETY;
WITH THE SOCIETY AND POLITICAL MORES THAT AFFECT HOW WE REACT AND
INTERACT WITH OTHER CITIZENS.  NATURALIZED CITIZENS HAVE ALSO
DEMONSTRATED THEIR WILLINGNESS TO ADJUST TO OUR PATTERNS OF LIVING AND
ATTITUDES, AND HAVE DEMONSTRATED A BASIC UNDERSTANDING OF OUR
INSTITUTIONS, SYSTEM OF GOVERNMENT, HISTORY, AND TRADITIONS.  IT IS NOT
IRRATIONAL TO ASSUME THAT ALIENS AS A CLASS ARE NOT FAMILIAR WITH HOW
WE AS INDIVIDUALS TREAT OTHERS AND HOW WE EXPECT "GOVERNMENT"  TO TREAT
US.  AN ALIEN WHO GREW UP IN A COUNTRY IN WHICH POLITICAL MORES DO NOT
REJECT BRIBERY OR SELF-DEALING TO THE SAME EXTENT THAT OUR CULTURE
DOES; IN WHICH AN IMPERIOUS BUREAUCRACY HISTORICALLY ADOPTED A
COMPLACENT OR CONTEMPTUOUS ATTITUDE TOWARD THOSE IT WAS SUPPOSED TO
SERVE; IN WHICH FEWER IF ANY CHECKS EXISTED ON ADMINISTRATIVE ABUSES;
IN WHICH "LOW-LEVEL" CIVIL SERVANTS SERVE AT THE WILL OF THEIR
SUPERIORS-COULD RATIONALLY BE THOUGHT NOT TO BE ABLE TO DEAL WITH THE
PUBLIC AND WITH CITIZEN CIVIL SERVANTS WITH THE SAME RAPPORT THAT ONE
FAMILIAR WITH OUR POLITICAL AND SOCIAL MORES WOULD, OR TO APPROACH HIS
DUTIES WITH THE ATTITUDE THAT SUCH POSITIONS EXIST FOR SERVICE, NOT
PERSONAL SINECURES OF EITHER THE CIVIL SERVANT OR HIS OR HER SUPERIOR. 
THESE CONSIDERATIONS COULD RATIONALLY BE EXPECTED TO INFLUENCE HOW AN
ADMINISTRATOR IN CHARGE OF A PROGRAM, SUCH AS APPELLEE DOUGALL, MADE
DECISIONS IN ALLOCATING FUNDS, HIRING OR DEALING WITH PERSONNEL, OR
DECISIONMAKING, OR HOW A LOWER LEVEL CIVIL SERVANT, SUCH AS APPELLEE
JORGE, WAS ABLE TO PERFORM WITH AND FOR FELLOW WORKERS AND SUPERIORS,
EVEN IF SHE HAD NO DIRECT CONTACT WITH THE PUBLIC.  ALL THESE FACTORS
COULD MATERIALLY AFFECT THE EFFICIENT FUNCTIONING OF THE CITY
GOVERNMENT, AND POSSIBLY AS WELL THE VERY INTEGRITY OF THAT
GOVERNMENT.  SUCH A LEGISLATIVE PURPOSE IS CLEARLY NOT IRRATIONAL. 

IN NO. 71 - 1336 THE ANSWER IS NOT AS CLEARCUT.  THE STATES
TRADITIONALLY HAVE HAD GREAT LATITUDE IN PRESCRIBING RULES AND
REGULATIONS CONCERNING TECHNICAL COMPETENCE AND CHARACTER FITNESS,
GOVERNING THOSE WHO SEEK TO BE ADMITTED TO PRACTICE LAW.  SEE, E. G.,
KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U. S. 36 (1961).  THE
IMPORTANCE OF LAWYERS AND THE JUDICIARY IN OUR SYSTEM OF GOVERNMENT AND
JUSTICE NEEDS NO EXTENDED COMMENT.  AN ATTORNEY IS AN "OFFICER OF THE
COURT" IN CONNECTICUT, A STATUS THIS COURT HAS ALSO RECOGNIZED.  SEE,
E. G., POWELL V. ALABAMA, 287 U. S. 45, 73 (1932); EX PARTE GARLAND, 4
WALL.  333, 370 (1867).  HE REPRESENTS HIS CLIENT, BUT ALSO, IN
CONNECTICUT, MAY "SIGN WRITS AND SUBPOENAS, TAKE RECOGNIZANCES, (AND)
ADMINISTER OATHS."  CONN. GEN. STAT. REV. ^ 51 - 85. 

MORE IMPORTANT THAN THESE EMOLUMENTS OF THEIR POSITION, THOUGH, IS
THE TREMENDOUS RESPONSIBILITY AND TRUST THAT OUR SOCIETY PLACES IN THE
HANDS OF LAWYERS.  THE LIBERTY AND PROPERTY OF THE CLIENT MAY DEPEND
UPON THE COMPETENCE AND FIDELITY OF THE REPRESENTATION AFFORDED BY THE
LAWYER IN ANY NUMBER OF PARTICULAR LAWSUITS.  BUT BY VIRTUE OF THEIR
OFFICE LAWYERS ARE ALSO GIVEN, AND HAVE INCREASINGLY UNDERTAKEN TO
EXERCISE, AUTHORITY TO SEEK TO ALTER SOME OF THE SOCIAL RELATIONSHIPS
AND INSTITUTIONS OF OUR SOCIETY BY USE OF THE JUDICIAL PROCESS.  NO
DOUBT AN ALIEN EVEN UNDER TODAY'S DECISION MAY BE REQUIRED TO BE
LEARNED IN THE LAW AND FAMILIAR WITH THE LANGUAGE SPOKEN IN THE COURTS
OF THE PARTICULAR STATE INVOLVED.  BUT CONNECTICUT'S REQUIREMENT OF
CITIZEN SHIP REFLECTS ITS JUDGMENT THAT SOMETHING MORE THAN TECHNICAL
SKILLS ARE NEEDED TO BE A LAWYER UNDER OUR SYSTEM.  I DO NOT BELIEVE IT
IS IRRATIONAL FOR A STATE THAT MAKES THAT JUDGMENT TO REQUIRE THAT
LAWYERS HAVE AN UNDERSTANDING OF THE AMERICAN POLITICAL AND SOCIAL
EXPERIENCE, WHETHER GAINED FROM GROWING UP IN THIS COUNTRY, AS IN THE
CASE OF A NATIVE-BORN CITIZEN, OR FROM THE NATURALIZATION PROCESS, AS
IN THE CASE OF A FOREIGN-BORN CITIZEN.  I SUPPOSE THE CONNECTICUT BAR
EXAMINING COMMITTEE COULD ITSELF ADMINISTER TESTS IN AMERICAN HISTORY,
GOVERNMENT, AND SOCIOLOGY, BUT THE STATE DID NOT CHOOSE TO GO THIS
ROUTE.  INSTEAD, IT CHOSE TO OPERATE ON THE ASSUMPTION THAT CITIZENS AS
A CLASS MIGHT REASONABLY BE THOUGHT TO HAVE A SIGNIFICANTLY GREATER
DEGREE OF UNDERSTANDING OF OUR EXPERIENCE THAN WOULD ALIENS. 
PARTICULARLY IN THE CASE OF ONE SUCH AS APPELLANT, WHO CANDIDLY ADMITS
THAT SHE WANTS TO LIVE AND WORK IN THE UNITED STATES BUT DOES NOT WANT
TO SEVER HER FUNDAMENTAL SOCIAL AND POLITICAL RELATIONSHIP WITH THE
COUNTRY OF HER BIRTH, I DO NOT BELIEVE THE STATE'S JUDGMENT IS
IRRATIONAL. 

I WOULD THEREFORE REVERSE THE JUDGMENT IN NO. 71 - 1222 AND AFFIRM
THAT IN NO. 71 - 1336. 

/1/  ALTHOUGH SOME OF THE MEMBERS OF THE CLASS HAD NOT BEEN
RESIDENTS OF THE UNITED STATES FOR FIVE YEARS AT THE TIME THE COMPLAINT
WAS FILED, AND THEREFORE WERE INELIGIBLE TO APPLY IMMEDIATELY FOR
CITIZENSHIP, 8 U.S.C. ^ 1427, THERE IS NO INDICATION THAT THESE
MEMBERS, ASSUMING THAT THEY ARE IN THE SAME "CLASS" AS THE NAMED
APPELLEES, WOULD BE PROHIBITED FROM SEEKING CITIZENSHIP STATUS AFTER
THEY HAD RESIDED IN THIS COUNTRY FOR THE REQUIRED PERIOD.  IN ANY
EVENT, THIS CIRCUMSTANCE ONLY UNDERSCORES THE FACT THAT IT IS NOT
UNREASONABLE TO ASSUME THAT THEY HAVE NOT LEARNED ABOUT AND ADAPTED TO
OUR MORES AND INSTITUTIONS TO THE SAME EXTENT AS ONE WHO HAD LIVED HERE
FOR FIVE YEARS WOULD HAVE THROUGH SOCIAL CONTACT.     /2/  ALTHOUGH
STATED IN GRAHAM AND THE INSTANT CASES THAT ALIENS ARE "LIKE" CITIZENS
BECAUSE THEY WERE SUBJECT TO SERVICE IN THE ARMED SERVICES, NONE OF THE
OPINIONS CONSIDERED IN FACT THAT CONGRESS PROVIDED THAT ALIENS WHO IN
FACT SERVED HONORABLY COULD EXPEDITIOUSLY BECOME CITIZENS.  8 U.S.C. ^
1440.  THE COURT'S RELIANCE ON THE FACT THAT SOME MALE ALIENS HAD TO
REGISTER FOR THE DRAFT AND SERVE IF CALLED TO SUGGEST THAT ALIENS AND
CITIZENS ARE "THE SAME" NEGLECTS TO CONSIDER THIS STATUTE:  ALIENS WHO
SERVED HONORABLY WERE "LIKE" CITIZENS IN THAT THEY DEMONSTRATED, LIKE
CITIZENS, A COMMITMENT TO OUR SOCIETY THAT CONGRESS BELIEVED WARRANTED,
OTHER CONSIDERATIONS ASIDE, THEIR IMMEDIATE, FORMAL ACCEPTANCE INTO OUR
SOCIETY. 

SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL OF NEW YORK,
ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, AND JUDITH A. GORDON, ASSISTANT ATTORNEY
GENERAL. 

LESTER EVENS ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES. 

J. SHANE, CREAMER, ATTORNEY GENERAL, AND JAMES R. ADAMS, DEPUTY
ATTORNEY GENERAL, FILLED A BRIEF FOR THE COMMONWEALTH OF PENNSYLVANIA
AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :









GOSA V. MAYDEN 413 U.S. 665 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT 

     NO. 71 - 6314.  ARGUED DECEMBER 4, 1972--DECIDED JUNE 25,
1973;

  NO. 71 - 6314, 450 F.2D 753, AFFIRMED; NO. 71 - 1398, 458 F.2D

  544, REVERSED.  TOGETHER WITH NO 71 - 1398, WARNER, SECRETARY OF

  THE NAVY V. FLEMINGS, ON CERTIORARI TO THE UNITED STATES COURT OF

  APPEALS FOR THE SECOND CIRCUIT. 


    IN NO. 71 - 6314, PETITIONER WAS TRIED BY COURT-MARTIAL AND

  CONVICTED OF RAPE.  HIS CONVICTION WAS AFFIRMED BY THE AIR FORCE

  BOARD OF REVIEW, AND THE COURT OF MILITARY APPEALS DENIED A

  PETITION FOR REVIEW.  AT NO TIME DURING THE TRIAL AND REVIEW

  PROCEEDINGS DID PETITIONER QUESTION THE JURISDICTION OF THE

  MILITARY TRIBUNAL.  THEREAFTER, FOLLOWING THE DECISION IN

  O'CALLAHAN V. PARKER, 395 U. S. 258 (HOLDING THAT WHEN A

  SERVICEMAN IS CHARGED WITH A CRIME THAT IS NOT "SERVICE

  CONNECTED" HE IS ENTITLED TO INDICTMENT BY A GRAND JURY AND TRIAL

  BY JURY IN A CIVILIAN COURT), PETITIONER SOUGHT A WRIT OF HABEAS

  CORPUS IN FEDERAL DISTRICT COURT WHICH WAS DENIED, THE COURT

  CONCLUDING THAT THE STANDARDS PROMULGATED IN STOVALL V. DENNO,

  388 U. S. 293, PRECLUDED RETROACTIVE APPLICATION OF O'CALLAHAN. 

  ON APPEAL, IN FACE OF THE GOVERNMENT'S CONCESSION THAT THE

  OFFENSE WAS NOT SERVICE CONNECTED, THE COURT OF APPEALS

  AFFIRMED.  IN NO. 71 - 1398, RESPONDENT, WHILE ABSENT WITHOUT

  LEAVE IN 1944, WAS APPREHENDED IN PENNSYLVANIA WHILE IN AN

  AUTOMOBILE STOLEN IN NEW JERSEY.  HE WAS TRIED BY COURT-MARTIAL

  IN NEW YORK ON CHARGES OF UNAUTHORIZED ABSENCE FROM DUTY STATION

  DURING WARTIME AND THEFT OF AN AUTOMOBILE FROM A CIVILIAN.  HE

  PLEADED GUILTY, AND AFTER SERVING TWO YEARS' CONFINEMENT WAS

  DISHONORABLY DISCHARGED IN 1946.  HE INSTITUTED SUIT IN 1970,

  RELYING ON O'CALLAHAN, SEEKING TO COMPEL THE SECRETARY OF THE

  NAVY TO OVERTURN HIS COURT-MARTIAL CONVICTION FOR AUTO THEFT AND

  TO CORRECT HIS MILITARY RECORDS WITH RESPECT TO HIS DISHONORABLE

  DISCHARGE.  THE DISTRICT COURT HELD THAT THE CAR THEFT WAS NOT

  SERVICE CONNECTED IN THE O'CALLAHAN SENSE AND THE O'CALLAHAN WAS

  TO BE APPLIED RETROACTIVELY.  THE COURT OF APPEALS AFFIRMED. 

  HELD:  THE JUDGMENT IN NO. 71 - 6314 IS AFFIRMED, AND THE

  JUDGMENT IN NO. 71 - 1398 IS REVERSED.  PP. 672 - 693. 

     MR. JUSTICE BLACKMUN, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE

  WHITE, AND MR. JUSTICE POWELL, CONCLUDED THAT: 

     1.  THE QUESTION IN O'CALLAHAN WAS THE APPROPRIATENESS OF THE

  EXERCISE OF JURISDICTION BY A MILITARY FORUM, PURSUANT TO AN ACT

 OF CONGRESS, OVER A NONSERVICE-CONNECTED OFFENSE WHEN BALANCED

  AGAINST THE GUARANTEES OF THE FIFTH AND SIXTH AMENDMENTS.  PP.

  672 - 678. 

     2.  APPLICATION OF THE THREE-PRONGED TEST OF STOVALL V. DENNO,

  SUPRA, "(A) THE PURPOSE TO BE SERVED BY THE NEW STANDARDS, (B)

  THE EXTENT OF THE RELIANCE BY LAW ENFORCEMENT AUTHORITIES ON THE

OLD STANDARDS, AND (C) THE EFFECT ON THE ADMINISTRATION OF

JUSTICE OF A RETROACTIVE APPLICATION OF THE NEW STANDARDS,"

  REQUIRES THAT O'CALLAHAN BE ACCORDED PROSPECTIVE EFFECT ONLY. 

  PP. 678 - 685. 

     3.  RESPONDENT'S CLAIM IN NO. 71 - 1398 THAT HE WAS DEPRIVED
OF

  THE RIGHT TO TRIAL IN THE VICINAGE, AS GUARANTEED BY ART. III, ^

  2, CL. 3, NOT RAISED BEFORE THE MILITARY COURT, LACKS MERIT. 

GENERAL COURT-MARTIAL JURISDICTION, DERIVED FROM ART. I, IS NOT

  RESTRICTED TERRITORIALLY TO A PARTICULAR STATE OR DISTRICT; THE

  VICINAGE REQUIREMENT HAS PRIMARY RELEVANCE TO TRIAL BY JURY; AND

  RESPONDENT HAS NOT DEMONSTRATED PREJUDICE.  PP. 685 - 686. 

     MR. JUSTICE DOUGLAS CONCLUDED, IN NO. 71 - 6314, THAT THE CASE

  SHOULD BE REARGUED ON THE QUESTION WHETHER THE "JURISDICTION" OF

  THE MILITARY TRIBUNAL, BEING NOT CONTESTED, HAD BECOME RES

  JUDICATA; AND IN NO. 71 - 1398, THAT RESPONDENT COMMITTED A

  "SERVICE CONNECTED" CRIME.  PP. 686 - 691. 

     MR. JUSTICE REHNQUIST CONCLUDED, IN NO. 71 - 6314, THAT

  ALTHOUGH THE PRIOR COURT DECISIONS DO NOT SUPPORT THE HOLDING

  THAT O'CALLAHAN SHOULD NOT BE APPLIED RETROACTIVELY, O'CALLAHAN

  WAS WRONGLY DECIDED AND SHOULD BE OVERRULED; AND, IN NO. 71 -

 1398, THAT ANY CRIME COMMITTED BY A SERVICEMAN DURING THE TIME OF

  DECLARED WAR IS "SERVICE CONNECTED" AND THAT HE CAN BE VALIDLY

  TRIED BY COURT-MARTIAL FOR THAT OFFENSE.  P. 692. 

     MR. JUSTICE STEWART CONCLUDED, IN NO. 71 - 1398, THAT

  RESPONDENT, A SERVICEMAN WHO DESERTED HIS POST DURING A TIME OF

  CONGRESSIONALLY DECLARED WAR AND STOLE AN AUTOMOBILE WAS GUILTY

  OF A "SERVICE CONNECTED" OFFENSE AND WAS PROPERLY TRIED BEFORE A

  COURT-MARTIAL UNDER O'CALLAHAN.  P. 693. 

     BLACKMUN, J., ANNOUNCED THE COURT'S JUDGMENTS AND DELIVERED AN

  OPINION, IN WHICH BURGER, C. J., AND WHITE AND POWELL, JJ.,

  JOINED.  REHNQUIST, J., FILED AN OPINION CONCURRING IN THE RESULT

  IN PART IN NO. 71 - 6314, AND CONCURRING IN THE RESULT IN NO. 71

  - 1398, POST, P. 686.  STEWART, J., FILED AN OPINION CONCURRING

  IN THE RESULT IN NO. 71 - 1398, IN WHICH DOUGLAS, J., JOINED, AND

  DISSENTING IN NO. 71 - 6314, POST, P. 693 MARSHALL, J., FILED A

  DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED, AND IN WHICH

  STEWART, J., JOINED AS IT APPLIES TO NO. 71 - 6314, POST, P.

  693. 

MR. JUSTICE BLACKMUN ANNOUNCED THE JUDGMENTS OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE WHITE, AND MR. JUSTICE
POWELL JOIN. 

IN O'CALLAHAN V. PARKER, 395 U. S. 258, DECIDED JUNE 2, 1969, THIS
COURT, BY A 5 - 3 VOTE, HELD THAT WHEN A PERSON IN MILITARY SERVICE IS
CHARGED WITH A CRIME THAT IS NOT "SERVICE CONNECTED," ID., AT 272, THE
DEFENDANT IS ENTITLED, DESPITE HIS MILITARY STATUS, TO THE BENEFIT OF
"TWO IMPORTANT CONSTITUTIONAL GUARANTEES," ID., AT 273, NAMELY,
INDICTMENT BY A GRAND JURY /1/  AND TRIAL BY JURY IN A CIVILIAN COURT. 

THE COURT NOTED THAT O'CALLAHAN WAS "PROPERLY ABSENT FROM HIS
MILITARY BASE WHEN HE COMMITTED THE CRIMES WITH WHICH HE IS CHARGED,"
IBID.; THAT THERE WAS NO CONNECTION BETWEEN HIS MILITARY DUTIES AND THE
CRIMES; THAT THE OFFENSES WERE COMMITTED OFF THE MILITARY POST OR
ENCLAVE; THAT THE VICTIM WAS NOT PERFORMING ANY DUTY RELATING TO THE
MILITARY; THAT THE SITUS OF THE CRIMES WAS NOT OCCUPIED TERRITORY OR
UNDER MILITARY CONTROL; THAT THEY WERE PEACETIME OFFENSES; THAT THE
CIVILIAN COURTS WERE OPEN; AND THAT THE OFFENSES INVOLVED NO QUESTION
OF THE FLOUTING OF MILITARY AUTHORITY, POST SECURITY, OR THE INTEGRITY
OF MILITARY PROPERTY. 

LATER, IN RELFORD V. COMMANDANT, 397 U. S. 934 (1970), WE GRANTED
CERTIORARI "LIMITED TO RETROACTIVITY AND SCOPE OF O'CALLAHAN V.
PARKER."  WHEN RELFORD WAS DECIDED, 401 U. S. 355 (1971), WE HELD THAT
AN OFFENSE COMMITTED ON A MILITARY POST BY AN INDIVIDUAL IN SERVICE, IN
VIOLATION OF THE SECURITY OF ANOTHER PERSON OR PROPERTY ON THAT POST,
WAS "SERVICE CONNECTED," WITHIN O'CALLAHAN'S LANGUAGE.  RELFORD'S
OFFENSES SO QUALIFIED.  HIS CASE, THUS, WENT OFF ON THE SCOPE OF
O'CALLAHAN AND DID NOT REACH THE ISSUE OF RETROACTIVITY.  WE CONCLUDED
THAT THE LATTER ISSUE, ALTHOUGH HAVING "IMPORTANT DIMENSIONS, BOTH
DIRECT AND COLLATERAL," WAS "BETTER RESOLVED IN OTHER LITIGATION WHERE,
PERHAPS, IT WOULD BE SOLELY DISPOSITIVE OF THE CASE."  ID., AT 370. 
ONE OF THE CASES, GOSA, NOW BEFORE US PRESENTS THAT ISSUE SOLELY.  THE
OTHER CASE, FLEMINGS, PRESENTS THE ISSUE, BUT NOT SOLELY. 

        I 

NO. 71 - 6314.  IN DECEMBER 1966 PETITIONER JAMES ROY GOSA, AN
AIRMAN THIRD CLASS, STATIONED AT WARREN AIR FORCE BASE IN WYOMING, WAS
TRIED BY A COURT-MARTIAL AND CONVICTED OF RAPE, IN VIOLATION OF ART.
129 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. SEC. 920. 

THE OFFENSE TOOK PLACE THE PRECEDING AUGUST, IN WHAT THE RESPONDENT
HAS STATED TO BE PEACETIME, /2/  WHEN GOSA WAS IN THE CITY OF
CHEYENNE.  AT THE TIME, HE WAS OFFICIALLY OFF DUTY AND ABSENT FROM THE
BASE ON AUTHORIZED LEAVE.  HE WAS NOT IN UNIFORM.  THE VICTIM WAS NOT
CONNECTED WITH THE MILITARY OR RELATED TO MILITARY PERSONNEL.  SHORTLY
AFTER THE INCIDENT GOSA WAS ARRESTED BY CIVILIAN AUTHORITIES.  HE WAS
UNABLE TO MAKE BOND AND WAS DETAINED PENDING A PRELIMINARY HEARING. 
THE COMPLAINING WITNESS DID NOT APPEAR AT THE HEARING.  GOSA,
ACCORDINGLY, WAS RELEASED.  HE WAS TAKEN INTO MILITARY CUSTODY,
HOWEVER, AND CHARGED WITH THE ART. 120 VIOLATION.  A GENERAL COURT
MARTIAL WAS CONVENED.  GOSA WAS TRIED AND CONVICTED.  HE WAS SENTENCED
TO 10 YEARS' IMPRISONMENT AT HARD LABOR, FORFEITURE OF PAY AND
ALLOWANCES, REDUCTION IN RANK TO THE LOWEST PAY GRADE OF AIRMAN BASIC,
AND A BAD CONDUCT DISCHARGE.  AS REQUIRED BY ART. 61 OF THE CODE, 10
U.S.C. ^ 861, THE CONVENING AUTHORITY THEN REFERRED THE CASE TO HIS
STAFF JUDGE ADVOCATE FOR REVIEW.  THE STAFF JUDGE ADVOCATE'S
RECOMMENDATION THAT THE FINDINGS AND SENTENCE OF THE GENERAL COURT
MARTIAL BE APPROVED WERE ADOPTED BY THE CONVENING AUTHORITY.  PURSUANT
TO ART. 66 OF THE CODE, 10 U.S.C. ^ 866, THE CASE WAS REFERRED TO AN
AIR FORCE BOARD OF REVIEW.  THAT BOARD AFFIRMED THE CONVICTION AND
SENTENCE.  ON AUGUST 16, 1967, THE UNITED STATES COURT OF MILITARY
APPEALS DENIED A PETITION FOR REVIEW.  17 U.S.C. M. A. 648.  THE CASE
THEREUPON BECAME FINAL, ART. 76 OF THE CODE, 10 U.S.C. ^ 876, SUBJECT,
OF COURSE, TO THE HABEAS CORPUS EXCEPTION RECOGNIZED IN UNITED STATES
V. AUGENBLICK, 393 U. S. 348, 349 - 350 (1969). 

AT NO TIME THROUGHOUT THE TRIAL AND THE REVIEW PROCEEDINGS DID GOSA
RAISE ANY QUESTION AS TO THE POWER OF THE MILITARY TRIBUNAL TO TRY
HIM. 

FOLLOWING THE COURT'S DECISION IN O'CALLAHAN, GOSA FILED AN
APPLICATION FOR A WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF FLORIDA SEEKING HIS RELEASE FROM THE
FEDERAL CORRECTIONAL INSTITUTION AT TALLAHASSEE WHERE HE WAS THEN
CONFINED.  /3/  SUBSEQUENTLY, HE FILED WITH THE UNITED STATES COURT OF
MILITARY APPEALS A MOTION TO VACATE HIS SENTENCE AND CONVICTION; THIS
WAS TREATED AS A PETITION FOR RECONSIDERATION AND WAS DENIED BY A
DIVIDED VOTE WITH ACCOMPANYING OPINIONS.  19 U.S.C. M. A. 327, 41 C. M.
R. 327 (1970).  THE HABEAS APPLICATION ALSO WAS DENIED BY THE DISTRICT
COURT UPON ITS DETERMINATION THAT THE STANDARDS PROMULGATED IN STOVALL
V. DENN., 388 U. S. 293, 297 (1967), AND RELATED CASES, PRECLUDED
RETROACTIVE APPLICATION OF O'CALLAHAN.  305 F. SUPP. 1186 (ND FLA.
1969).  ON APPEAL, IN THE FACE OF A GOVERNMENT CONCESSION THAT THE
ALLEGED OFFENSE WAS NOT SERVICE CONNECTED, THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT, ONE JUDGE DISSENTING, AFFIRMED.  450 F. 2D 753 (1971). 

NO. 71 - 1398.  IN 1944, WHEN THE UNITED STATES WAS FORMALLY AT WAR,
RESPONDENT JAMES W. FLEMINGS, THEN AGE 18 AND A SEAMAN SECOND CLASS,
WAS STATIONED AT THE NAVAL AMMUNITION DEPOT IN NEW JERSEY.  ON AUGUST 7
OF THAT YEAR FLEMINGS FAILED TO RETURN ON TIME FROM AN AUTHORIZED THREE
DAY LEAVE.  HE WAS APPREHENDED BY PENNSYLVANIA POLICE WHILE HE WAS IN
AN AUTOMOBILE STOLEN TWO DAYS EARLIER IN TRENTON, NEW JERSEY.  FLEMINGS
WAS TURNED OVER TO MILITARY AUTHORITIES.  HE WAS CHARGED WITH
UNAUTHORIZED ABSENCE FROM HIS DUTY STATION DURING WARTIME AND WITH
THEFT OF AN AUTOMOBILE "FROM THE POSSESSION OF . . . A CIVILIAN."  /4/ 

A COURT-MARTIAL WAS CONVENED AT THE BROOKLYN NAVY YARD.  FLEMINGS,
REPRESENTED BY A RESERVE LIEUTENANT, PLEADED GUILTY TO THE TWO
CHARGES.  HE WAS SENTENCED TO THREE YEARS' IMPRISONMENT, REDUCTION IN
RANK TO APPRENTICE SEAMAN, AND DISHONORABLE DISCHARGE.  AFTER TWO
YEARS'  CONFINEMENT HE WAS RELEASED AND WAS DISHONORABLY DISCHARGED IN
OCTOBER 1946. 

IN 1970, FLEMINGS INSTITUTED SUIT IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF NEW YORK, RELYING ON O'CALLAHAN AND
SEEKING TO COMPEL THE SECRETARY OF THE NAVY TO OVERTURN THE 1944 COURT
MARTIAL CONVICTION FOR AUTO THEFT AND TO CORRECT HIS MILITARY RECORDS
WITH RESPECT TO THE DISHONORABLE DISCHARGE.  HE DID NOT CHALLENGE THE
VALIDITY OF HIS CONVICTION FOR BEING ABSENT WITHOUT LEAVE. 

THE DISTRICT COURT HELD THAT THE AUTO THEFT OFFENSE WAS NOT SERVICE
CONNECTED IN THE O'CALLAHAN SENSE AND THAT O'CALLAHAN WAS TO BE APPLIED
RETROACTIVELY TO INVALIDATE THE COURT-MARTIAL CONVICTION ON THAT
CHARGE.  330 F. SUPP. 193 (EDNY 1971).  THE COURT OF APPEALS FOR THE
SECOND CIRCUIT AFFIRMED.  458 F. 2D 544 (1972). 

WE GRANTED CERTIORARI IN BOTH CASES TO RESOLVE THE CONFLICT.  407 U.
S. 920 AND 919 (1972).  /5/

        II 

O'CALLAHAN V. PARKER, TO USE THE WORDS MR. JUSTICE STEWART EMPLOYED
IN DESIST V. UNITED STATES, 394 U. S. 244, 248 (1969), WAS "A CLEAR
BREAK WITH THE PAST."  IN O'CALLAHAN THE COURT CONCLUDED THAT, IN
HARMONIZING THE EXPRESS GUARANTEES OF THE FIFTH AND SIXTH AMENDMENTS,
WITH RESPECT TO GRAND JURY INDICTMENT AND TRIAL BY A CIVILIAN JURY,
WITH THE POWER OF CONGRESS, UNDER ART. I, ^ 8, CL. 14, OF THE
CONSTITUTION, "TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE
LAND AND NAVAL FORCES,"  A MILITARY TRIBUNAL ORDINARILY MAY NOT TRY A
SERVICEMAN CHARGED WITH A CRIME THAT HAS NO SERVICE CONNECTION. 
ALTHOUGH THE COURT IN DID NOT EXPRESSLY OVERRULE ANY PRIOR DECISION, IT
DID ANNOUNCE A NEW CONSTITUTIONAL PRINCIPLE, AND IT EFFECTED A
DECISIONAL CHANGE IN ATTITUDE THAT HAD PREVAILED FOR MANY DECADES.  THE
COURT LONG AND CONSISTENTLY HAD RECOGNIZED THAT MILITARY STATUS IN
ITSELF WAS SUFFICIENT FOR THE EXERCISE OF COURT-MARTIAL JURISDICTION. 
KINSELLA V. SINGLETON, 361 U. S. 234, 240 - 241, 243 (1960); REID V.
COVERT, 354 U. S. 1, 22 - 23 (1957); GRAFTON V. UNITED STATES, 206 U.
S. 333, 348 (1907); JOHNSON V. SAYRE, 158 U. S. 109, 114 (1895); SMITH
V. WHITNEY, 116 U. S. 167, 184 - 185 (1886); COLEMAN V. TENNESSEE, 97
U. S. 509 (1879); EX PARTE MILLIGAN, 4 WALL.  2, 123 (1866).  INDEED,
IN GRAFTON, 206 U. S., AT 348, THE COURT OBSERVED, "WHILE . . . THE
JURISDICTION OF GENERAL COURTS-MARTIAL EXTENDS TO ALL CRIMES, NOT
CAPITAL COMMITTED AGAINST PUBLIC LAW BY AN OFFICER OR SOLDIER OF THE
ARMY WITHIN THE LIMITS OF THE TERRITORY IN WHICH HE IS SERVING, THIS
JURISDICTION IS NOT EXCLUSIVE, BUT ONLY CONCURRENT WITH THAT OF THE
CIVIL COURTS." 

THE NEW APPROACH ANNOUNCED IN O'CALLAHAN WAS CAST, TO BE SURE, IN
"JURISDICTIONAL" TERMS, BUT THIS WAS "LEST 'CASES ARISING IN THE LAND
OR NAVAL FORCES, OR IN THE MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF
WAR OR PUBLIC DANGER,' AS USED IN THE FIFTH AMENDMENT, BE EXPANDED TO
DEPRIVE EVERY MEMBER OF THE ARMED SERVICES OF THE BENEFITS OF AN
INDICTMENT BY A GRAND JURY AND A TRIAL BY A JURY OF HIS PEERS"
(FOOTNOTE OMITTED).  395 U. S., AT 272 - 273.  THE COURT WENT ON TO
EMPHASIZE THAT THE "POWER OF CONGRESS TO MAKE 'RULES FOR THE GOVERNMENT
AND REGULATION OF THE LAND AND NAVAL FORCES,' ART. I, ^ 8, CL. 14, NEED
NOT BE SPARINGLY READ IN ORDER TO PRESERVE THOSE TWO IMPORTANT
CONSTITUTIONAL GUARANTEES.  FOR IT IS ASSUMED THAT AN EXPRESS GRANT OF
GENERAL POWER TO CONGRESS IS TO BE EXERCISED IN HARMONY WITH EXPRESS
GUARANTEES OF THE BILL OF RIGHTS."  ID., AT 273.  THE BASIS FOR THE
"JURISDICTIONAL" HOLDING IN O'CALLAHAN OBVIOUSLY WAS THE INCREASING
AWARENESS AND RECOGNITION OF THE IMPORTANT CONSTITUTIONAL VALUES
EMBODIED IN THE FIFTH AND SIXTH AMENDMENTS.  FACED WITH THE NEED TO
EXTEND THE PROTECTION OF THOSE AMENDMENTS AS WIDELY AS POSSIBLE, WHILE
AT THE SAME TIME RESPECTING THE POWER OF CONGRESS TO MAKE "RULES FOR
THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES," THE COURT,
ID., AT 265, HEEDED THE NECESSITY FOR RESTRICTING THE EXERCISE OF
JURISDICTION BY MILITARY TRIBUNALS TO THOSE CRIMES WITH A SERVICE
CONNECTION AS AN APPROPRIATE AND BENEFICIAL LIMITATION "TO THE
NARROWEST JURISDICTION DEEMED ABSOLUTELY ESSENTIAL TO MAINTAINING
DISCIPLINE AMONG TROOPS IN ACTIVE SERVICE."  TOTH V. QUARLES, 350 U. S.
11, 22 (1955). 

THAT O'CALLAHAN DEALT WITH THE APPROPRIATE EXERCISE OF JURISDICTION
BY MILITARY TRIBUNALS IS APPARENT FROM KINSELLA V. SINGLETON, SUPRA,
WHERE THE COURT RULED THAT THE NECESSARY AND PROPER CLAUSE, ART., ^ 8,
CL. 18, DOES NOT ENABLE CONGRESS TO BROADEN THE TERM "LAND AND NAVAL
FORCES" IN ART. I, ^ 8, CL. 14, TO INCLUDE A CIVILIAN DEPENDENT
ACCOMPANYING A MEMBER OF THE ARMED FORCES OVERSEAS.  IN SUCH A CASE, IT
WAS HELD, A CIVILIAN DEPENDENT IS ENTITLED TO THE SAFEGUARDS OF ART.
III AND OF THE FIFTH AND SIXTH AMENDMENTS, AND CONVICTION BY COURT
MARTIAL IS NOT CONSTITUTIONALLY PERMISSIBLE: 

"BUT THE POWER TO 'MAKE RULES FOR THE GOVERNMENT AND REGULATION OF
THE LAND AND NAVAL FORCES' BEARS NO LIMITATION AS TO OFFENSES.  THE
POWER THERE GRANTED INCLUDES NOT ONLY THE CREATION OF OFFENSES BUT THE
FIXING OF THE PUNISHMENT THEREFOR.  IF CIVILIAN DEPENDENTS ARE INCLUDED
IN THE TERM 'LAND AND NAVAL FORCES' AT ALL, THEY ARE SUBJECT TO THE
FULL POWER GRANTED THE CONGRESS THEREIN TO CREATE CAPITAL AS WELL AS
NONCAPITAL OFFENSES.  THIS COURT CANNOT DIMINISH AND EXPAND THAT POWER,
EITHER ON A CASE-BY-CASE BASIS OR ON A BALANCING OF THE POWER THERE
GRANTED CONGRESS AGAINST THE SAFEGUARDS OF ARTICLE III AND THE FIFTH
AND SIXTH AMENDMENTS.  DUE PROCESS CANNOT CREATE OR ENLARGE POWER.  . .
. IT DEALS NEITHER WITH POWER NOR WITH JURISDICTION, BUT WITH THEIR
EXERCISE."  361 U. S., AT 246. 

ALTHOUGH THE DECISION IN O'CALLAHAN EMPHASIZES THE DIFFERENCE IN
PROCEDURAL PROTECTIONS RESPECTIVELY AFFORDED BY THE MILITARY AND THE
CIVILIAN TRIBUNALS, THE COURT CERTAINLY DID NOT HOLD, OR EVEN INTIMATE,
THAT THE PROSECUTION IN A MILITARY COURT OF A MEMBER OF THE ARMED
SERVICES FOR A NONSERVICE-CONNECTED CRIME WAS SO UNFAIR AS TO BE VOID
AB INITIO.  RATHER, THE PROPHYLACTIC RULE THERE FORMULATED "CREATED A
PROTECTIVE UMBRELLA SERVING TO ENHANCE" A NEWLY RECOGNIZED
CONSTITUTIONAL PRINCIPLE.  MICHIGAN V. PAYNE, 412 U. S. 47, 54 (1973). 
THAT RECOGNITION AND EFFECT ARE GIVEN TO A THERETOFORE UNRECOGNIZED AND
UNEFFECTUATED CONSTITUTIONAL PRINCIPLE DOES NOT, OF COURSE,
AUTOMATICALLY MANDATE RETROACTIVITY.  IN WILLIAMS V. UNITED STATES, 401
U. S. 646, 651 (1971), MR. JUSTICE WHITE MADE IT CLEAR, CITING
LINKLETTER V. WALKER, 381 U. S. 618 (1965), THAT THE COURT HAS "FIRMLY
REJECTED THE IDEA THAT ALL NEW INTERPRETATIONS OF THE CONSTITUTION MUST
BE CONSIDERED ALWAYS TO HAVE BEEN THE LAW AND THAT PRIOR CONSTRUCTIONS
TO THE CONTRARY MUST ALWAYS BE IGNORED."  SEE CHICOT COUNTY DRAINAGE
DISTRICT V. BAXTER STATE BANK, 308 U. S. 371, 374, (1940).  AND IN
JOHNSON V. NEW JERSEY, 384 U. S. 719, 728 (1966), IT WAS SAID THAT "THE
CHOICE BETWEEN RETROACTIVITY AND NONRETROACTIVITY IN NO WAY TURNS ON
THE VALUE OF THE CONSTITUTIONAL GUARANTEE INVOLVED."     DUNCAN V.
LOUISIANA, 391 U.S. 145 (1968), AND BLOOM V. ILLINOIS, 391 U.S. 194
(1968), ARE ILLUSTRATIVE OF THE CONTEXT OF THE O'CALLAHAN DECISION.  IN
DUNCAN, THE COURT HELD THAT SINCE "TRIAL BY JURY IN CRIMINAL CASES IS
FUNDAMENTAL TO THE AMERICAN SCHEME OF JUSTICE,... THE FOURTEENTH
AMENDMENT GUARANTEES A RIGHT OF JURY TRIAL IN ALL CRIMINAL CASES WHICH-
WERE THEY TO BE TRIED IN A FEDERAL COURT--WOULD COME WITHIN THE SIXTH
AMENDMENT'S GUARANTEE" (FOOTNOTE OMITTED).  391 U.S., AT 149.  IN BLOOM
THE COURT HELD THAT SERIOUS CRIMINAL CONTEMPTS MAY NOT BE SUMMARILY
PUNISHED AND THAT THEY ARE SUBJECT TO THE CONSTITUTION'S JURY TRIAL
PROVISION.  391 U.S., AT 201 -210.  IN THOSE TWO CASES THE COURT RULED
THAT A STATE COURT EXERCISING JURISDICTION OVER A DEFENDANT IN A
SERIOUS CRIMINAL OR CRIMINAL COMTEMPT CASE, BUT FAILING TO HONOR A
REQUEST FOR A JURY TRIAL, IN EFFECT WAS WITHOUT JURISDICTION.  YET IN
DESTEFANO V. WOODS, 392 U.S. 631 (1968), THE COURT BY A PER CURIAM
OPINION, DENIED RETROACTIVE APPLICATION TO THOSE NEW CONSTITUTIONAL
HOLDINGS.  THE COURT THUS CONCLUDED THAT IT DID NOT FOLLOW THAT EVERY
JUDGMENT RENDERED IN A DUNCAN OR IN A BLOOM SITUTATION, PRIOR TO THE
DECISIONS IN THOSE CASES, WAS SO INFECTED BY UNFAIRNESS AS TO BE NULL
AND VOID. 

THE SAME ANALYSIS HAS PERTINENT APPLICATION TO THESE VERY SIMILAR
CASES, AND IT LEADS US TO THE CONCLUSION THAT THE VALIDITY OF
CONVICTIONS BY MILITARY TRIBUNALS, NOW SAID TO HAVE EXERCISED
JURISDICTION INAPPROPRIATELY OVER NON-SERVICE-CONNECTED OFFENSES IS NOT
SUFFICIENTLY IN DOUBT SO AS TO REQUIRE THE REVERSAL OF ALL SUCH
CONVICTIONS RENDERED SINCE 1916 WHEN CONGRESS PROVIDED FOR MILITARY
TRIALS FOR CIVILIAN OFFENSES COMMITTED BY PERSONS IN THE ARMED
SERVICES.  ACT OF AUGUST 29, 1916, C. 418, 39 STAT. 652. 

THE CLEARLY OPPOSING AND CONTRASTING SITUATION IS PROVIDED BY THE
ARGUMENT MADE BY RESPONDENT FLEMINGS TO THE EFFECT THAT THE
RETROACTIVITY OF O'CALLAHAN IS TO BE DETERMINED AND IS CONTROLLED BY
UNITED STATES V. U. S. COIN & CURRENCY, 401 U. S. 715 (1971).  IN THAT
CASE THE COURT HELD THAT ITS DECISIONS IN MARCHETTI V. UNITED STATES,
390 U. S. 39 (1968), AND GROSSO V. UNITED STATES, 390 U. S. 62 (1968),
PRECLUDING THE CRIMINAL CONVICTION OF A GAMBLER WHO PROPERLY ASSERTED
HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AS A REASON
FOR HIS FAILURE TO REGISTER AND TO PAY THE FEDERAL GAMBLING TAX, WOULD
BE APPLIED RETROACTIVELY SO AS TO INVALIDATE FORFEITURE PROCEEDINGS
UNDER 26 U.S.C. ^ 7302 ENSUING UPON THE INVALID CONVICTION.  TO SUGGEST
THAT COIN & CURRENCY IS CONTROLLING IS TO IGNORE THE IMPORTANT
DISTINCTION BETWEEN THAT CASE AND THESE.  THERE THE COURT DETERMINED
THAT RETROSPECTIVE APPLICATION OF MARCHETTI AND GROSSO WAS REQUIRED
BECAUSE THEY "DEALT WITH THE KIND OF CONDUCT THAT CANNOT
CONSTITUTIONALLY BE PUNISHED IN THE FIRST INSTANCE," 401 U. S., AT 723;
IT WAS CONDUCT "CONSTITUTIONALLY IMMUNE FROM PUNISHMENT" IN ANY COURT. 
ID., AT 724. 

IN O'CALLAHAN, ON THE OTHER HAND, THE OFFENSE WAS ONE FOR WHICH THE
DEFENDANT WAS NOT SO IMMUNE IN ANY COURT.  THE QUESTION WAS NOT WHETHER
O'CALLAHAN COULD HAVE BEEN PROSECUTES; IT WAS, INSTEAD, ONE RELATED TO
THE FORUM, THAT IS, WHETHER, AS WE HAVE SAID, THE EXERCISE OF
JURISDICTION BY A MILITARY TRIBUNAL, PURSUANT TO AN ACT OF CONGRESS,
OVER HIS NONSERVICE-CONNECTED OFFENSE WAS APPROPRIATE WHEN BALANCED
AGAINST THE IMPORTANT GUARANTEES OF THE FIFTH AND SIXTH AMENDMENTS. 
THE COURT CONCLUDED THAT IN THE CIRCUMSTANCES THERE PRESENTED THE
EXERCISE OF JURISDICTION WAS NOT APPROPRIATE, AND FASHIONED A RULE
LIMITING THE EXERCISE OF COURT-MARTIAL JURISDICTION IN ORDER TO PROTECT
THE RIGHTS TO INDICTMENT AND JURY TRIAL.  THE COURT DID NOT HOLD THAT A
MILITARY TRIBUNAL WAS ALWAYS HAD BEEN WITHOUT AUTHORITY TO EXERCISE
JURISDICTION OVER A NONSERVICE-CONNECTED OFFENSE. 

       III 

THE FOREGOING CONCLUSION, OF COURSE, DOES NOT END OUR INQUIRY AS TO
WHETHER O'CALLAHAN SHOULD BE ACCORDED RETROACTIVE APPLICATION. 

IN TWO CASES DECIDED EARLIER THIS TERM, RETROSPECTIVITY OF A NEW
CONSTITUTIONAL DECISION WAS ALSO AN ISSUE.  ROBINSON V. NEIL, 409 U. S.
505 (1973), CONCERNED SUCCESSICE MUNICIPAL AND STATE PROSECUTIONS FOR
ALLEGED OFFENSES ARISING FROM THE SAME CIRCUMSTANCES, AND A CLAIM OF
DOUBLE JEOPARDY, BASED ON THIS COURT'S INTERVENING DECISIONS IN BENTON
V. MARYLAND, 395 U. S. 784 (1969), AND WALLER V. FLORIDA, 397 U. S. 387
(1970).  WE RECOGNIZED THAT IN LINKLETTER THE COURT WAS "CHARTING NEW
GROUND" IN THE RETROSPECTIVITY AREA, 409 U. S., AT 507, THAT
"LINKLETTER AND SUCCEEDING CASES," IBID., OBVIOUSLY INCLUDING STOVALL
V. DENNO, 388 U. S., AT 297, ESTABLISHED STANDARDS FOR DETERMINING
RETROACTIVITY; THAT ROBINSON, HOWEVER, DID NOT READILY LEND ITSELF TO
THE LINKLETTER ANALYSIS; THAT LINKLETTER AND ITS RELATED CASES DEALT
WITH PROCEDURAL RIGHTS AND TRIAL METHODS; AND THAT GUARANTEES NOT
RELATED TO PROCEDURAL RULES "CANNOT, FOR RETROACTIVITY PURPOSES, BE
LUMPED CONVENIENTLY TOGETHER IN TERMS OF ANALYSIS."  ROBINSON V. NEIL,
409 U. S., AT 508. 

IN MICHIGAN V. PAYNE, 412 U. S. 47 (1973), WE WERE CONCERNED WITH
THE RETROACTIVITY OF NORTH CAROLINA V. PEARCE, 395 U. S. 711 (1969),
AND THE STANDARDS IT PROMULGATED WITH RESPECT TO AN INCREASED JUDGE
IMPOSED SENTENCE ON RETRIAL AFTER A SUCCESSFUL APPEAL.  WE THERE
EMPLOYED THE STOVALL CRITERIA AND HELD THAT PEARCE WAS NOT TO BE
APPLIED RETROACTIVELY. 

IN THE PRESENT CASES WE ARE NOT CONCERNED, OF COURSE, WITH
PROCEDURAL RIGHTS OR TRIAL METHODS, AS IS EXEMPLIFIED BY THE DECISIONS
CONCERNING THE EXCLUSIONARY RULE (LINKLETTER), THE RIGHT OF
CONFRONTATION (STOVALL), ADVERSE COMMENT ON A DEFENDANT'S FAILURE TO
TAKE THE STAND (TEHAN V. SHOTT, 382 U. S. 406 (1966)), AND A
CONFESSION'S ADMISIBILITY (JOHNSON V. NEW JERSEY, 384 U. S. 719
(1966)).  BUT NEITHER ARE WE CONCERNED, AS WE WERE IN ROBINSON, WITH A
CONSTITUTIONAL RIGHT THAT OPERATES TO PREVENT ANOTHER TRIAL FROM TAKING
PLACE AT ALL.  OUR CONCERN, INSTEAD, IS WITH THE APPROPRIATENESS OF THE
EXERCISE OF JURISDICTION BY A MILITARY FORUM. 

THESE CASES, THEREFORE, CLOSELY PARALLEL DE STEFANO V. WOODS, SUPRA,
WHERE THE COURT DENIED RETROACTIVE APPLICATION TO DUNCAN V. LOUISIANA,
SUPRA, AND BLOOM V. ILLINOIS, SUPRA, IN EACH OF WHICH A RIGHT TO A JURY
TRIAL HAD BEEN ENUNCIATED.  IN DENYING RETROACTIVITY, THE INTEGRITITY
OF EACH OF THE EARLIER PROCEEDINGS, WITHOUT A JURY, WAS RECOGNIZED. 
THE TEST APPLIED IN DE STEFANO WAS THE STOVALL TEST.  392 U. S., AT 633
- 635.  SIMILARLY HERE, THEN, THE THREE-PRONG TEST OF STOVALL HAS
PERTINENCY, AND WE PROCEED TO MEASURE GOSA'S AND FLEMINGS' CLAIMS BY
THAT TEST DIRECTED TO "(A) THE PURPOSE TO BE SERVED BY THE NEW
STANDARDS, (B) THE EXTENT OF THE RELIANCE BY LAW ENFORCEMENT
AUTHORITIES ON THE OLD STANDARDS, AND (C) THE EFFECT ON THE
ADMINISTRATION OF JUSTICE OF A RETROACTIVE APPLICATION OF THE NEW
STANDARDS."  388 U. S., AT 297. 

A. PURPOSE.  "FOREMOST AMONG THESE FACTORS IS THE PURPOSE TO BE
SERVED BY THE NEW CONSTITUTIONAL RULE."  DESIST V. UNITED STATES, 394
U. S. 244, 249 (1969).  IN HIS OPINION FOR THE PLURALITY IN WILLIAMS V.
UNITED STATES, 401 U. S., AT 653, MR. JUSTICE WHITE EMPHASIZED THAT
WHERE "THE MAJOR PURPOSE OF NEW CONSTITUTIONAL DOCTRINE IS TO OVERCOME"
A TRIAL ASPECT "THAT SUBSTANTIALLY IMPAIRS ITS TRUTH-FINDING
FUNCTION,"  THE NEW RULE IS GIVEN COMPLETE RETROACTIVE EFFECT, AND
"(NEITHER GOOD-FIATH RELIANCE" NOR "SEVERE IMPACT ON THE ADMINISTRATION
OF JUSTICE" SUFFICES TO REQUIRE PROSPECTIVITY. 

OUR INITIAL CONCERN, THEREFORE, IS WHETHER THE MAJOR PURPOSE OF THE
HOLDING IN O'CALLAHAN WAS TO OVERCOME AN ASPECT OF MILITARY TRIALS
WHICH SUBSTANTIALLY IMPAIRED THE TRUTH-FINDING PROCESS AND BROUGHT INTO
QUESTION THE ACCURACY OF ALL THE GUILTY VERDICTS RENDERED BY MILITARY
TRIBUNALS.  AT THE SAME TIME, HOWEVER, THE FACT THAT A NEW RULE TENDS
INCIDENTALLY TO IMPROVE OR ENHANCE RELIABILITY DOES NOT IN ITSELF
MANDATE THE RULE'S RETROACTIVE APPLICATION.  THE COURT IN JOHNSON V.
NEW JERSEY, 384 U. S., AT 728, REPEATED WHAT HAD BEEN SUGGESTED IN
LINKLETTER AND TEHAN, THAT "WE MUST DETERMINE RETROACTIVITY 'IN EACH
CASE' BY LOOKING TO THE PECULIAR TRAITS OF THE SPECIFIC 'RULE IN
QUESTION'" AND 

     "(FINALLY, WE EMPHASIZE THAT THE QUESTION WHETHER A

  CONSTITUTIONAL RULE OF CRIMINAL PROCEDURE DOES OR DOES NOT

  ENHANCE THE RELIABILITY OF THE FACT-FINDING PROCESS AT TRIAL IS

  NECESSARILY A MATTER OF DEGREE.  . . . WE ARE THUS CONCERNED WITH

  A QUESTION OF PROBABILITIES AND MUST TAKE ACCOUNT, AMONG OTHER

  FACTORS, OF THE EXTENT TO WHICH OTHER SAFEGUARDS ARE AVAILABLE TO

  PROTECT THE INTEGRITY OF THE TRUTH-DETERMINING PROCESS AT

TRIAL."  384 U. S., AT 728 - 729. 

SEE MICHIGAN V. PAYNE, 412 U. S., AT 55.  THUS, RETROACTIVITY IS NOT
REQUIRED BY A DETERMINATION THAT THE OLD STANDARD WAS NOT THE MOST
EFFECTIVE VEHICLE FOR ASCERTAINING THE TRUTH, OR THAT THE TRUTH
DETERMINING PROCESS HAS BEEN AIDED SOMEWHAT BY THE NEW STANDARD, OR
THAT ONE OF SEVERAL PURPOSES IN FORMULATING THE NEW STANDARD WAS TO
PREVENT DISTORTION IN THE PROCESS. 

ALTHOUGH THE OPINION IN O'CALLAHAN WAS NOT UNCRITICAL OF THE
MILITARY SYSTEM OF JUSTICE, AND STRESSED POSSIBLE COMMAND INFLUENCE AND
THE LACK OF CERTAIN PROCEDURAL SAFEGUARDS, 395 U. S., AT 263 - 266, THE
DECISION THERE, AS HAS BEEN POINTED OUT ABOVE, CERTAINLY WAS NOT BASED
ON ANY CONVICTION THAT THE COURT-MARTIAL LACKS FUNDAMENTAL INTEGRITY IN
ITS TRUTH-DETERMINING PROCESS.  /6/  INDEED, OUR SUBSEQUENT RULING IN
RELFORD ITSELF INDICATES OUR CONCLUSION THAT MILITARY CRIMINAL
PROCEEDINGS ARE NOT BASICALLY UNFAIR, FOR RELFORD CLEARLY APPROVES
PROSECUTION IN A MILITARY COURT, OF WHAT IS OTHERWISE A CIVILIAN CRIME,
WHEN FACTORS ARE PRESENT THAT ESTABLISH THE OFFENSE'S "SERVICE
CONNECTION."  401 U. S., AT 364 - 365.  SEE MR. CHIEF JUSTICE WARREN'S
PAPER, THE BILL OF RIGHTS AND THE MILITARY 37 N. Y. U. L. REV. 181, 188
- 189 (1962). 

IT, OF COURSE, WOULD DEMEAN THE CONSTITUTIONAL RIGHTS TO INDICTMENT
AND TRIAL BY A JURY TO ASSERT THAT THOSE GUARANTEES DO NOT PLAY SOME
ROLE IN ASSURING THE INTEGRITY OF THE TRUTH-DETERMINING PROCESS.  "(THE
RIGHT TO JURY TRIAL GENERALLY TENDS TO PREVENT ARBITRARINESS AND
REPRESSION."  DE STEFANO V. WOODS, 392 U. S., AT 633.  THE SAME MISSION
IS FULFILLED BY THE INDICTMENT RIGHT.  BUT A POLICY DIRECTED AT THE
PREVENTION OF ARBITRARINESS AND REPRESSION IS NOT CONFINED TO THE TRUTH
DETERMINING PROCESS.  IT IS CONCERNED, AS WELL, WITH A LARGER RANGE OF
POSSIBLE EVILS:  PROSECUTION THAT IS MALICIOUS, PROSECUTORIAL
OVERZEALOUSNESS, EXCESSIVENESS OF SENTENCE, AND THE LIKE.  THESE VERY
INGREDIENTS WERE ALSO PRESENT IN THE BACKGROUND IN DUNCAN AND BLOOM. 
YET, THE COURT DID NOT FIND IT NECESSARY TO HOLD RETROACTIVE THE RIGHTS
NEWLY ESTABLISHED BY THOSE CASES. 

NOTHING SAID IN O'CALLAHAN INDICATES THAT THE MAJOR PURPOSE OF THAT
DECISION WAS TO REMEDY A DEFECT IN THE TRUTH-DETERMINING PROCESS IN THE
MILITARY TRIAL.  RATHER, THE BROAD GUARANTEES OF THE FIFTH AMENDMENT
RIGHT TO GRAND JURY INDICTMENT AND THE SIXTH AMENDMENT RIGHT TO JURY
TRIAL WEIGHED HEAVILY IN THE LIMITATION OF THE EXERCISE OF COURT
MARTIAL JURISDICTION TO "'THE LEAST POSSIBLE POWER ADEQUATE TO THE END
PROPOSED,'" TOTH V. QUARLES, 350 U. S. 11, 23 (1955), A PHRASE TAKEN
FROM ANDERSON V. DUNN, 6 WHEAT.  204, 231 (1821). 

THE PURPOSE BEHIND THE RULE ENUNCIATED IN O'CALLAHAN THUS DOES NOT
MANDATE RETROACTIVITY. 

B. RELIANCE.  WITH RESPECT TO THIS FACTOR, WE REPEAT WHAT HAS BEEN
EMPHASIZED ABOVE, NAMELY, THAT, BEFORE O'CALLAHAN, THE LAW WAS SETTLED
THAT THE EXERCISE OF MILITARY JURISDICTION OVER AN OFFENSE ALLEGEDLY
COMMITTED BY A MEMBER OF THE ARMED FORCES WAS APPROPRIATELY BASED ON
THE MILITARY STATUS OF THE DEFENDANT AND WAS NOT DEPENDENT ON THE SITUS
OR NATURE OF THE OFFENSE.  THERE WAS JUSTIFIABLE AND EXTENSIVE RELIANCE
BY THE MILITARY AND BY ALL OTHERS ON THE SPECIFIC RULLINGS OF THIS
COURT.  MILITARY AUTHORITIES WERE ACTING APPROPRIATELY PURSUANT TO
PROVISIONS OF THE UNIFORM CODE OF MILITARY JUSTICE, ART. 2, 10 U.S.C. ^
802, AND ITS PREDECESSORS, AND COULD NOT BE SAID TO BE ATTEMPTING TO
USURP CIVILIAN AUTHORITY.  THE MILITARY IS NOT TO BE FAULTED FOR ITS
RELIANCE ON THE LAW AS IT STOOD BEFORE O'CALLAHAN AND FOR NOT
ANTICIPATING THE "CLEAR BREAK WITH THE PAST" THAT O'CALLAHAN ENTAILED. 
THE RELIANCE FACTOR, TOO, FAVORS PROSPECTIVITY. 

C. EFFECT ON THE ADMINISTRATION OF JUSTICE.  IN DE STEFANO V. WOODS,
392 U. S., AT 634, THE COURT, IN CONSIDERING THE RETROACTIVITY OF
DUNCAN AND BLOOM, ATTACHED SPECIAL SIGNIFICANCE TO THE FACT THAT "THE
EFFECT OF A HOLDING OF GENERAL RETROACTIVITY ON LAW ENFORCEMENT AND THE
ADMINISTRATION OF JUSTICE WOULD BE SIGNIFICANT, BECAUSE THE DENIAL OF
JURY TRIAL HAS OCCURRED IN A VERY GREAT NUMBER OF CASES."  THE VERY
SAME FACTOR IS PRESENT WITH LIKE SIGNIFICANCE HERE, FOR THE MILITARY
COURTS HAVE BEEN FUNCTIONING IN THIS AREA SINCE 1916, APPROPRIATELY
ASSUMING FROM THIS COURT'S SUCCESSIVE HOLDINGS, THAT THEY WERE PROPERLY
EXERCISING JURISDICTION IN CASES CONCERNING NONSERVICE-CONNECTED
OFFENSES ALLEGEDLY COMMITTED BY SERVICEMEN. 

A MERE GLANCE AT THE REPORTS OF THE UNITED STATES COURT OF MILITARY
APPEALS DISCLOSES THE VOLUME OF PROSECUTIONS IN MILITARY TRIBUNALS. 
RETROSPECTIVE APPLICATION OF O'CALLAHAN WOULD NOT ONLY AFFECT THE
VALIDITY OF MANY CRIMINAL CONVICTIONS BUT WOULD RESULT IN ADJUSTMENTS
AND CONTROVERSY OVER BACK PAY, VETERANS' BENEFITS, RETIREMENT PAY,
PENSIONS, AND OTHER MATTERS.  IN ADDITION, THE TASK OF ESTABLISHING A
SERVICE CONNECTION ON THE BASIS OF A STALE RECORD OR IN A NEW TRIAL
WOULD PROVE FORMIDABLE IF NOT IMPOSSIBLE IN MANY CASES, SINCE AT THE
TIME THE RECORD WAS MADE THE QUESTION WHETHER THERE WAS A SERVICE
CONNECTION WAS OF NO IMPORTANCE.     GOSA AND FLEMINGS PRESS UPON US A
RECENT LAW REVIEW ARTICLE.  BLUMENFELD, RETROACTIVITY AFTER O'CALLAHAN:
AN ANALYTICAL AND STATISTICAL APPROACH, 60 GEO. L. J. 551 (1972).  THE
AUTHOR OF THAT ARTICLE CONCLUDES:  (1) ON THE BASIS OF A SAMPLING OF
CASES REVIEWED BY THE COURT OF MILITARY APPEALS AND THE ARMY COURT OF
MILITARY REVIEW BETWEEN JUNE 2, 1969 (THE DATE OF O'CALLAHAN), AND
DECEMBER 31, 1970, ONLY ABOUT 1% OF THE GENERAL COURT-MARTIAL CASES
WERE SERVICE CONNECTED.  ID., AT 580 N. 147.  (2) "(VERY FEW"
SERVICEMEN HAVE SOUGHT COLLATERAL REVIEW OF THEIR CONVICTIONS SINCE
O'CALLAHAN WAS DECIDED.  ID., AT 578 N. 141.  THE AUTHOR ASSERTS,
HOWEVER, "EVEN IF THE NUMBER OF REQUESTS FOR RELIEF SENT TO MILITARY
DEPARTMENTS SHOULD EXCEED EXPECTATIONS, THE DEFENSE DEPARTMENT, WITH AN
ABUNDANCE OF PERSONNEL AND COMPUTERS, COULD DEVELOP PROCEDURES TO
INSURE A QUICK REVIEW."  ID., AT 572.  (3) THE MILITARY HAS NECESSARY
MACHINERY TO PROCESS CLAIMS AND PETITIONS FOR REVIEW.  ID., AT 571 -
575.  (4) THE FINANCIAL IMPACT OF A RULING OF RETROACTIVITY WOULD NOT
BE GREAT SINCE MOST SERVICEMEN CONVICTED OF NONSERVICE CONNECTED CRIMES
WOULD NOT BE ENTITLED TO RETIREMENT OR PENSION PAY AND THAT, IN ANY
EVENT, THE AVERAGE RETURN SHOULD NOT EXCEED $1,500.  ID., AT 574 -
575. 

IN MERCER V. DILLON, 19 U.S.C. M. A. 264, 41 C. M. R. 264 (1970),
THE UNITED STATES COURT OF MILITARY APPEALS, A TRIBUNAL COMPOSED OF
CIVILIAN JUDGES, 10 U.S.C. ^ 867, BUT UNIQUELY FAMILIAR WITH THE
MILITARY SYSTEM OF JUSTICE, SPOKE IN ANOTHER VEIN.  /7/  A PERTINENT
FACTOR, TOO, IS THAT UNTIL FLEMINGS' CASE EMERGED IN THE SECOND
CIRCUIT, THE CIVILIAN AND THE MILITARY COURTS HAD RULED AGAINST
APPLYING O'CALLAHAN RETROACTIVELY; THUS THERE WAS NO DECISIONAL IMPETUS
TO ENCOURAGE LITIGATION. 

WE MUST NECESSARILY ALSO CONSIDER THE IMPACT OF A RETROACTIVITY
HOLDING ON THE INTERESTS OF SOCIETY WHEN THE NEW CONSTITUTIONAL
STANDARD PROMULGATED DOES NOT BRING INTO QUESTION THE ACCURACY OF PRIOR
ADJUDICATIONS OF GUILT.  WHOLESALE INVALIDATION OF CONVICTIONS RENDERED
YEARS AGO COULD WELL MEAN THAT CONVICTED PERSONS WOULD BE FREED WITHOUT
RETRIAL, FOR WITNESSES, PARTICULARLY MILITARY ONES, NO LONGER MAY BE
READILY AVAILABLE, MEMORIES MAY HAVE FADED, RECORDS MAY BE INCOMPLETE
OR MISSING, AND PHYSICAL EVIDENCE MAY HAVE DISAPPEARED.  SOCIETY MUST
NOT BE MADE TO TOLERATE A RESULT OF THAT KIND WHEN THERE IS NO
SIGNIFICANT QUESTION CONCERNING THE ACCURACY OF THE PROCESS BY WHICH
JUDGMENT WAS RENDERED OR, IN OTHER WORDS, WHEN ESSENTIAL JUSTICE IS NOT
INVOLVED. 

WE CONCLUDE THAT THE PURPOSE TO BE SERVED BY O'CALLAHAN, THE
RELIANCE ON THE LAW AS IT STOOD BEFORE THAT DECISION, AND THE EFFECT OF
A HOLDING OF RETROACTIVITY, ALL REQUIRE THAT O'CALLAHAN BE ACCORDED
PROSPECTIVE APPLICATION ONLY.  WE SO HOLD.  /8/

        IV 

FLEMINGS ALSO URGES THAT, BECAUSE HIS COURT-MARTIAL PROCEEDING WAS
CONVENED IN BROOKLYN, WHEREAS THE AUTO THEFT TOOK PLACE IN NEW JERSEY
AND HIS ARREST IN PENNSYLVANIA, HE WAS DEPRIVED OF THE RIGHT TO A TRIAL
IN THE VICINAGE, AS GUARANTEED BY ART. III, ^ 2, CL. 3, OF THE
CONSTITUTION.  THIS CLAIM WAS NOT RAISED BEFORE THE MILITARY COURT. 
MOREOVER, A MILITARY TRIBUNAL IS AN ARTICLE I LEGISLATIVE COURT WITH
JURISDICTION INDEPENDENT OF THE JUDICIAL POWER CREATED AND DEFINED BY
ARTICLE III.  EX PARTE QUIRIN, 317 U. S. 1, 39 (1942); WHELCHEL V. MC
DONALD, 340 U. S. 122, 127 (1950); KENNEDY V. MENDOZA MARTINEZ, 372 U.
S. 144, 165 (1963).  GENERAL COURTMARTIAL JURISDICTION IS NOT
RESTRICTED TERRITORIALLY TO THE LIMITS OF A PARTICULAR STATE OR
DISTRICT.  1 W. WINTHROP, MILITARY LAW AND PRECEDENTS 104 - 105 (2D ED.
1896).  AND THE VICINAGE REQUIREMENT HAS PRIMARY RELEVANCE TO TRIAL BY
JURY.  IN ANY EVENT, FLEMINGS HAS DEMONSTRATED NO PREJUDICE. 

THE JUDGMENT IN NO. 71 - 6314 IS AFFIRMED; THAT IN NO. 71 - 1398 IS
REVERSED. 

              IT IS SO ORDERED. 

/1/ THE COURT, OF COURSE, HAS NOT YET HELD THE INDICTMENT
REQUIREMENT OF THE FIFTH AMENDMENT TO BE BINDING UPON THE STATES. 
HURTADO V. CALIFORNIA, 110 U. S. 516 (1884); GAINES V. WASHINGTON, 277
U. S. 81, 86 (1928); BRANZBURG V. HAYES, 408 U. S. 665, 688 N. 25
(1972). 

/2/  TR. OF ORAL ARG. 16. 

/3/  GOSA HAS SINCE BEEN RELEASED.  INASMUCH AS THE DISTRICT COURT
POSSESSED FEDERAL HABEAS JURISDICTION WHEN GOSA'S APPLICATION WAS
FILED, THAT JURISDICTION WAS NOT DEFEATED BY HIS RELEASE PRIOR TO THE
COMPLETION OF PROCEEDINGS ON THE APPLICATION.  CARAFAS V. LA VALLEE,
391 U. S. 234, 238 - 240 (1968). 

/4/  IT APPEARS THAT THE AUTOMOBILE WAS OWNED BY A MEMBER OF THE
SIGNAL CORPS BUT THAT THE CAR WAS BEING USED BY HIM ON A PURELY
PERSONAL ERRAND WHEN IT WAS STOLEN.  THE OWNER WAS NOT COMPENSATED BY
THE MILITARY FOR ITS USE. 

/5/  SEE ALSO SCHLOMANN V. MOSELEY, 457 F. 2D 1223 (CA10 1972),
CERT. DENIED, POST, P. 919 (413 U. S., PRELIMINARY PRINT PT. 2);
THOMPSON V. PARKER, 308 F. SUPP. 904, 907 - 908 (MD PA. 1970), APPEAL
DISMISSED (CA3, 18868, 1970); AND MERCER V. DILLON, 19 U.S.C. M. A.
264, 265, 41 C. M. R. 264, 265 (1970), WHERE THE COURT OF MILITARY
APPEALS CONFINED THE APPLICATION OF O'CALLAHAN TO THOSE CONVICTIONS
THAT WERE NOT FINAL WHEN O'CALLAHAN WAS DECIDED ON JUNE 2, 1969. 

SCHOLARLY COMMENT ON O'CALLAHAN RETROSPECTIVITY IS DIVIDED.  THE
FOLLOWING PREDICT OR FAVOR NONRETROACTIVITY:  EVERETT, O'CALLAHAN V.
PARKER--MILESTONE OR MILLSTONE IN MILITARY JUSTICE?, 1969 DUKE L. J.
853, 886 - 889; NELSON & WESTBROOK, COURT-MARTIAL JURISDICTION OVER
SERVICEMEN FOR "CIVILIAN" OFFENSES:  AN ANALYSIS OF O'CALLAHAN V.
PARKER, 54 MINN. L. REV. 1, 39 - 46 (1969); NOTE, MILITARY LAW
CONSTITUTIONAL LAW-COURT-MARTIAL JURISDICTION LIMITED TO "SERVICE
CONNECTED" CASES, 44 TULANE L. REV. 417, 423 - 424 (1970); NOTE,
RETROACTIVITY-MILITARY JURISDICTION-MILITARY CONVICTIONS FOR NONSERVICE
CONNECTED OFFENSES SHOULD BE VACATED RETROACTIVELY, 50 TEX. L. REV. 405
(1972); NOTE, CONSTITUTIONAL LAW-RETROACTIVITY OF O'CALLAHAN V. PARKER,
47 ST. JOHN'S L. REV. 235 (1972); NOTE, THE SWORD AND NICE SUBTLETIES
OF CONSTITUTIONAL LAW:  O'CALLAHAN V. PARKER, 3 LOYOLA U. (L. A.)  L.
REV. 188, 198 N. 67 (1970); COMMENT, COURTS MARTIAL-JURISDICTION
SERVICE-CONNECTED CRIME, 21 S. C. L. REV. 781, 793 - 794 (1969).  THE
FOLLOWING PREDICT OR FAVOR RETROACTIVITY:  BLUMENFIELD, RETROACTIVITY
AFTER O'CALLAHAN:  AN ANALYTICAL AND STATISTICAL APPROACH, 60 GEO. L.
J. 551 (1972); WILKINSON, THE NARROWING SCOPE OF COURT-MARTIAL
JURISDICTION:  O'CALLAHAN V. PARKER, 9 WASHBURN L. J. 193, 197 - 201
(1970); HIGLEY, O'CALLAHAN RETROACTIVITY:  AN ARGUMENT FOR THE
PROPOSITION, 27 JAF J. 85, 96 - 97 (1972); NOTE O'CALLAHAN V. PARKER, A
MILITARY JURISDICTIONAL DILEMMA, 22 BAYLOR L. REV. 64, 75 (1970); NOTE,
DENIAL OF MILITARY JURISDICTION OVER SERVICEMEN'S CRIMES HAVING NO
MILITARY SIGNIFICANCE AND COGNIZABLE IN CIVILIAN COURTS, 64 NW. U. L.
REV. 930, 938 (1970).  SEE BIRNBAUM & FOWLER, O'CALLAHAN V. PARKER:
THE RELFORD DECISION AND FURTHER DEVELOPMENTS IN MILITARY JUSTICE, 39
FORD.  L. REV. 729, 739 - 742 (1971). 

A COMPILATION OF GENERAL COMMENTS ON O'CALLAHAN APPEARS IN RELFORD
V. COMMANDANT, 401 U. S. 355, 356 N. 1 (1971). 

/6/  THERE ARE SOME PROTECTIONS IN THE MILITARY SYSTEM NOT AFFORDED
THE ACCUSED IN THE CIVILIAN COUNTERPART.  FOR EXAMPLE, ART. 32 OF THE
CODE, 10 U.S.C. ^ 832, REQUIRES "THOROUGH AND IMPARTIAL INVESTIGATION"
PRIOR TO TRIAL, AND PRESCRIBES FOR THE ACCUSED THE RIGHTS TO BE ADVISED
OF THE CHARGE, TO HAVE COUNSEL PRESENT AT THE INVESTIGATION, TO CROSS
EXAMINE ADVERSE WITNESSES THERE, AND TO PRESENT EXONERATING EVIDENCE. 
IT IS NOT DIFFICULT TO IMAGINE, ALSO, THE SITUATION WHERE A DEFENDANT,
WHO IS IN SERVICE, MAY WELL RECEIVE A MORE OBJECTIVE HEARING IN A COURT
MARTIAL THAN FROM A LOCAL JURY OF A COMMUNITY THAT RESENTS THE MILITARY
PRESENCE. 

THE UNIFORM CODE OF MILITARY JUSTICE WAS NOT IN EFFECT WHEN FLEMINGS
WAS CHARGED AND PLEADED GUILTY.  BUT THE FACT THAT HIS PROCEEDING TOOK
PLACE UNDER THE PRESENT CODE'S PREDECESSOR IS NO INEVITABLE INDICATION
OF BASIC UNFAIRNESS.  SEE BURNS V. WILSON, 346 U. S. 137 (1953). 

/7/  "WE RECOGNIZE THAT NOT ALL THE PERSONS POSSIBLY ENTITLED TO
REVIEW AND RELIEF WOULD HAVE THE INITIATIVE OR A SUFFICIENT FINANCIAL
INTEREST TO JUSTIFY THE TIME AND EXPENSE OF BRINGING SUITS OR
APPLICATIONS.  A RELIABLE ESTIMATE OF THE NUMBER OF COURT-MARTIAL
CONVICTIONS THAT COULD BE OVERTURNED BY A RETROACTIVE APPLICATION OF
O'CALLAHAN IS NEARLY IMPOSSIBLE TO SECURE.  FOR THE ONE FISCAL YEAR OF
1968, THE ARMY, THE NAVY, AND THE AIR FORCE CONDUCTED APPROXIMATELY
74,000 SPECIAL AND GENERAL COURTS-MARTIAL AND THOSE CONDUCTED IN THE
OTHER YEARS SINCE 1916 INVOLVED AN O'CALLAHAN ISSUE, IT IS AN
UNDERSTATEMTNT THAT THOUSANDS OF COURTS-MARTIAL WOULD STILL BE SUBJECT
TO REVIEW.  THE RANGE OF RELIEF COULD BE EXTENSIVE, INVOLVING SUCH
ACTIONS AS DETERMINATIONS BY THE MILITARY DEPARTMENTS OF WHETHER THE
CHARACTER OF DISCHARGES MUST BE CHANGED, AND CONSIDERATION OF
RETROACTIVE ENTITLEMENT TO PAY, RETIRED PAY, PENSIONS, COMPENSATION,
AND OTHER VETERANS' BENEFITS.  AMONG THE DIFFICULTIES WOULD BE THE
NECESSITY OF RECONSTRUCTING THE PAY GRADE THAT A MEMBER OF THE ARMED
FORCES WOULD HAVE ATTAINED EXCEPT FOR THE SENTENCE OF THE INVALIDATED
COURT-MARTIAL, A TASK COMPLICATED BY THE EXISTENCE OF A PERSONNEL
SYSTEM INVOLVING SELECTION OF ONLY THE BEST QUALIFIED ELIGIBLES AND
PROVIDING FOR THE ELIMINATION OF OTHERS AFTER SPECIFIED YEARS OF
SERVICE."  19 U.S.C. M. A., AT 267 - 268, 41 C. M. R., AT 267 - 268. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE RESULT IN PART IN NO. 71 -
6314 AND CONCURRING IN THE RESULT IN NO. 71 - 1398. 

I AGREE WITH MR. JUSTICE STEWART THAT RESPONDENT FLEMINGS COMMITTED
A "SERVICE CONNECTED" CRIME.  /1/ 

AS TO THE GOSA CASE I THINK THE CASE SHOULD BE PUT DOWN FOR
REARGUMENT ON WHETHER RES JUDICATA CONTROLS THE DISPOSITION OF THE
CASE.  THE ARGUMENT THAT IT DOES GOES AS FOLLOWS: 

PETITIONER GOSA WAS TRIED FOR RAPE BEFORE A MILITARY TRIBUNAL AND
CONVICTED.  THE CASE WENT THROUGH THE HIERARCHY OF REVIEW WITHIN THE
MILITARY ESTABLISHMENT AND AFTER THE CONVICTION AND SENTENCE WERE
AFFIRMED, A PETITION FOR REVIEW WAS FILED WITH THE COURT OF MILITARY
APPEALS (1 CIVILIAN COURT CREATED BY CONGRESS); BUT THAT COURT DENIED
REVIEW.  /2/  THE EVENTS DESCRIBED TOOK PLACE IN 1966 AND 1967.  ON
JUNE 2, 1969, WE DECIDED O'CALLAHAN V. PARKER, 395 U. S. 258,
INVALIDATING THE COURT-MARTIAL CONVICTION FOR RAPE COMMITTED OFF THE
MILITARY BASE BY A SERVICEMAN WHO WAS ON LEAVE. 

O'CALLAHAN IN THAT RESPECT IS ON ALL FOURS WITH THE INSTANT CASE,
FOR HERE PETITIONER WAS OFFICIALLY OFF-DUTY, IN CIVILIAN CLOTHES, AND
WAS FOUND TO HAVE RAPED A CIVILIAN IN NO WAY CONNECTED WITH THE
MILITARY, WHILE HE WAS IN CHEYENNE, WYOMING, NEAR WARREN AIR FORCE BASE
BUT NOT ON THE BASE. 

O'CALLAHAN WAS DECIDED IN 1969 AND IN RELIANCE ON IT PETITIONER GOSA
STARTED THIS HABEAS CORPUS ACTION /3/  SEEKING RELEASE FROM HIS
CONFINEMENT UNDER THE MILITARY SENTENCE. 

THE QUESTION WHETHER ONE OF OUR CONSTITUTIONAL DECISIONS SHOULD BE
RETROACTIVELY APPLIED HAS BEEN BEFORE US ON NUMEROUS OCCASIONS. 
LINKLETTER V. WALKER, 381 U. S. 618; STOVALL V. DENNO, 388 U. S. 293,
297; DESIST V. UNITED STATES, 394 U. S. 244; DE STEFANO V. WOODS, 392
U. S. 631. 

BUT IN ALL CASES TO DATE WHICH INVOLVED RETROACTIVITY THE QUESTION
HAS BEEN WHETHER THE COURT WHOSE JUDGMENT IS BEING REVIEWED SHOULD BE
REQUIRED IN THE INTERESTS OF SUBSTANTIAL JUSTICE TO RETRY THE ACCUSED
UNDER THE NEW CONSTITUTIONAL RULE ANNOUNCED BY THE COURT AFTER THE
FIRST TRIAL HAD BEEN COMPLETED BUT BEFORE THE NEW CONSTITUTIONAL
DECISION WAS ANNOUNCED.  THE MEASURE APPLIED AS TO WHETHER THE NEW RULE
SHOULD BE PROSPECTIVE OR RETROACTIVE /4/  WAS THE THREE-PRONGED TEST
STATED IN STOVALL V. DENNO, SUPRA, AT 297:  "THE CRITERIA GUIDING
RESOLUTION OF THE QUESTION IMPLICATE (A) THE PURPOSE TO BE SERVED BY
THE NEW STANDARDS, (B) THE EXTENT OF THE RELIANCE BY LAW ENFORCEMENT
AUTHORITIES ON THE OLD STANDARDS, AND (C) THE EFFECT ON THE
ADMINISTRATION OF JUSTICE OF A RETROACTIVE APPLICATION OF THE NEW
STANDARDS." 

HERE THE QUESTION IS WHETHER A CIVILIAN, RATHER THAN A MILITARY,
TRIBUNAL SHOULD HAVE TRIED HIM.  DOES THE QUESTION WHETHER THE
"JURISDICTION"  /5/  OF THE MILITARY TRIBUNAL CAN BE CONTESTED AT THIS
LATE DATE TURN ON WHETHER RES JUDICATA BARS THE INQUIRY? 

PETITIONER GOSA IN THE REVIEW OF HSI CONVICTION BY THE MILITARY
TRIBUNAL NEVER RAISED THE QUESTION RAISED IN O'CALLAHAN.  /6/  IF HE
WAS "CONSTITUTIONALLY IMMUNE FROM PUNISHMENT" IN ANY COURT, WE WOULD
HAVE THE PROBLEM PRESENTED IN UNITED STATES V. U. S. COIN & CURRENCY,
401 U. S. 715, 723 - 724.  BUT PETITIONER WAS NOT TRIED BY A KANGAROO
COURT OR BY EAGER VIGILANTES BUT BY MILITARY AUTHORITIES WITHIN THE
FRAMEWORK ESTABLISHED BY CONGRESS IN THE UNIFORM CODE OF MILITARY
JUSTICE. 

THE CASE IS SOMEWHAT UNLIKE MC CLAUGHRY V. DEMING, 186 U. S. 49,
WHERE A COURT-MARTIAL WAS CONSTITUTED OF OFFICERS OF THE REGULAR ARMY
WHO BY AN ACT OF CONGRESS WERE NOT AUTHORIZED TO SIT IN JUDGMENT ON
VOLUNTEERS.  THE COURT-MARTIAL WAS HELD INCOMPETENT TO SIT ON THE CASE
BECAUSE IT ACTED IN PLAIN VIOLATION OF AN ACT OF CONGRESS.  THERE WAS
THEREFORE NO TRIBUNAL AUTHORIZED BY LAW TO RENDER THE CHALLENGED
JUDGMENT.  CONSENT TO BE SO TRIED COULD NOT CONFER JURISDICTION IN FACE
OF THE MANDATE OF THE STATUTE.  IN THE PRESENT CASES CONGRESS BY
EXPRESS PROVISIONS OF THE CODE HAD AUTHORIZED THE MILITARY TRIBUNALS TO
SIT IN THESE TYPES OF CASES. 

IN CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER STATE BANK, 308 U. S.
371, MUNICIPAL DEBTS WERE READJUSTED BY A FEDERAL DISTRICT COURT UNDER
AN ACT OF CONGRESS WHICH THIS COURT LATER HELD TO BE UNCONSTITUTIONAL. 
THE LATTER RULING WAS IN ASHTON V. CAMERON COUNTY DISTRICT, 298 U. S.
513, WHERE A CLOSELY DIVIDED COURT HELD THAT AN EXTENSION OF THE
BANKRUPTCY ACT TO INCLUDE A READJUSTMENT OF THE DEBTS OF MUNICIPALITIES
AND COUNTIES WAS UNCONSTITUTIONAL.  PETITIONER HAD ITS DEBTS READJUSTED
UNDER THAT ACT, WHICH PERMITTED LESS THAN ALL OF THE OUTSTANDING
BONDHOLDERS TO AGREE TO A PLAN.  THAT PLAN WAS CONSUMMATED BEFORE THE
ASHTON DECISION.  RESPONDENT WAS ONE OF THE NONCONSENTING BONDHOLDERS. 
AFTER THE ASHTON DECISION IT BROUGHT SUIT ON ITS BONDS.  THE QUESTION
BEFORE THE COURT IN THE CHICOT COUNTY DRAINAGE DISTRICT CASE WAS THE
EXTENT TO WHICH THE ASHTON CASE SHOULD BE MADE RETROACTIVE.  THE COURT,
SPEAKING THROUGH MR. CHIEF JUSTICE HUGHES, SAID THAT THE PROCEEDINGS IN
THE DISTRICT COURT "WERE CONDUCTED IN COMPLETE CONFORMITY TO THE
STATUTE" AND THAT "NO QUESTION HAD BEEN RAISED AS TO THE REGULARITY OF
THE COURT'S ACTION."  308 U. S., AT 375.  SINCE THE PARTIES HAD AN
OPPORTUNITY TO RAISE THE QUESTION OF INVALIDITY BUT DID NOT DO SO, THEY
"WERE NOT THE LESS BOUND BY THE DECREE BECAUSE THEY FAILED TO RAISE
IT."  IBID. MR. CHIEF JUSTICE HUGHES ADDED, ID., AT 377: 

     "WHATEVER THE CONTENTION AS TO JURISDICTION MAY BE, WHETHER IT

IS THAT THE BOUNDARIES OF A VALID STATUTE HAVE BEEN TRANSGRESSED,

  OR THAT THE STATUTE ITSELF IS INVALID, THE QUESTION OF

  JURISDICTION IS STILL ONE FOR JUDICIAL DETERMINATION.  IF THE

  CONTENTION IS ONE AS TO VALIDITY, THE QUESTION IS TO BE

  CONSIDERED IN THE LIGHT OF THE STANDING OF THE PARTY WHO SEEKS TO

  RAISE THE QUESTION AND OF ITS PARTICULAR APPLICATION." 

HE WENT ON TO SAY, ID., AT 378: 

"(RES JUDICATA MAY BE PLEADED AS A BAR, NOT ONLY AS RESPECTS MATTERS
ACTUALLY PRESENTED TO SUSTAIN OR DEFEAT THE RIGHT ASSERTED IN THE
EARLIER PROCEEDING, 'BUT ALSO AS RESPECTS ANY OTHER AVAILABLE MATTER
WHICH MIGHT HAVE BEEN PRESENTED TO THAT END.'  GRUBB V. PUBLIC
UTILITIES COMM'N, (281 U. S. 470, 479)." 

PETITIONER CLAIMS, AS DID RESPONDENT IN THE CHICOT COUNTY DRAINAGE
DISTRICT CASE, THAT THE TRIBUNAL THAT FIRST ADJUDICATED THE CAUSE ACTED
UNCONSTITUTIONALLY.  AT THE TIME THE MILITARY COURT ACTED, HOWEVER, IT
WAS ASSUMED TO HAVE "JURISDICTION" AND ITS "JURISDICTION" WAS IN NO WAY
CHALLENGED IN THE REVIEW PROCEEDINGS AVAILABLE TO PETITIONER.  DID THE
ISSUE OF "JURISDICTION" FOR THAT CASE THEREFORE BECOME RES JUDICATA? 

THESE ARE, IN BRIEF, THE REASONS WHY RES JUDICATA ARGUABLY SHOULD
LEAD TO AN AFFIRMANCE IN THE GOSA CASE.  CONTRARY TO INTIMATIONS IN THE
DISSENTING OPINION I HAVE REACHED NO POSITION ON THE MERITS AND WOULD
RESERVE JUDGMENT UNTIL THE ISSUE WAS FULLY EXPLORED ON REARGUMENT. 

/1/  IN THE FLEMINGS CASE RESPONDENT IN TIME OF WAR WENT AWOL AND
STOLE A CAR FROM A CIVILIAN.  THE MILITARY CHARGE AGAINST HIM WAS AN
UNAUTHORIZED ABSENCE FROM HIS DUTY STATION DURING WARTIME AND THEFT OF
A CAR FROM A CIVILIAN.  HE PLEADED GUILTY; AND THE ONLY ACTION BROUGHT
CAME YEARS LATER WHEN HE SOUGHT CORRECTION OF HIS MILITARY RECORDS. 

/2/  THE CODE OF MILITARY JUSTICE, AFTER PROVIDING FOR INVESTIGATION
BEFORE A CHARGE IS REFERRED TO A GENERAL COURT-MARTIAL IN ART. 32 (A),
GOES ON TO STATE IN ART. 32 (B): 

"THE ACCUSED SHALL BE ADVISED OF THE CHARGES AGAINST HIM AND OF HIS
RIGHT TO BE REPRESENTED AT THAT INVESTIGATION BY COUNSEL.  UPON HIS OWN
REQUEST HE SHALL BE REPRESENTED BY CIVILIAN COUNSEL IF PROVIDED BY HIM,
OR MILITARY COUNSEL OF HIS OWN SELECTION IF SUCH COUNSEL IS REASONABLY
AVAILABLE, OR BY COUNSEL DETAILED BY THE OFFICER EXERCISING GENERAL
COURT-MARTIAL JURISDICTION OVER THE COMMAND.  AT THAT INVESTIGATION
FULL OPPORTUNITY SHALL BE GIVEN TO THE ACCUSED TO CROSS-EXAMINE
WITNESSES AGAINST HIM IF THEY ARE AVAILABLE AND TO PRESENT ANYTHING HE
MAY DESIRE IN HIS OWN BEHALF, EITHER IN DEFENSE OR MITIGATION, AND THE
INVESTIGATING OFFICER SHALL EXAMINE AVAILABLE WITNESSES REQUESTED BY
THE ACCUSED.  IF THE CHARGES ARE FORWARDED AFTER THE INVESTIGATION,
THEY SHALL BE ACCOMPANIED BY A STATEMENT OF THE SUBSTANCE OF THE
TESTIMONY TAKEN ON BOTH SIDES AND A COPY THEREOF SHALL BE GIVEN TO THE
ACCUSED."  10 U.S.C. ^832 (B). 

PETITIONER HAD COUNSEL BEFORE THE COURT OF MILITARY APPEALS, ONE
DESIGNATED BY THE ARMY; AND ONLY "THE MERITS" OF THE CONVICTION WERE
RAISED, NO QUESTION BEING RAISED RELATING TO THE "JURISDICTION" OF THE
MILITARY. 

/3/  TITLE 10 U.S.C. ^ 876 PROVIDES THAT MILITARY REVIEW OF COURT
MARTIAL CONVICTIONS SHALL BE "FINAL AND CONCLUSIVE" AND "BINDING UPON
ALL . . . COURTS . . . OF THE UNITED STATES."  AS WE NOTED IN UNITED
STATES V. AUGENBLICK, 393 U. S. 348, 349 - 350, RELIEF BY WAY OF HABEAS
CORPUS IS AN EXCEPTION TO THAT FINALITY CLAUSE. 

IT WAS SUGGESTED BY THE SOLICITOR GENERAL IN HIS BRIEF IN OPPOSITION
TO A MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF CERTIORARI IN
CRAWFORD V. UNITED STATES, 380 U. S. 970, THAT WHILE THE STATUTES MADE
THE JUDGMENT OF THE COURT OF MILITARY APPEALS "FINAL AND CONCLUSIVE,"
HABEAS CORPUS WOULD BE AVAILABLE TO A PERSON CONFINED AND A WRIT OF
ERROR CORAM NOBIS IN THE DISTRICT COURT IF HE IS NOT CONFINED; CITING
25 U.S.C. SEC. 1254 (C) (PROBABLY INTENDING 28 U.S.C. SEC. 1254 (1));
HIATT V. BROWN, 339 U. S. 103, 106 N. 1.  IN THAT VIEW ONE WHO WAS
UNSUCCESSFUL IN OBTAINING RELIEF BY WAY OF CORAM NOBIS IN THE DISTRICT
COURT, WOULD BE ABLE TO SEEK REVIEW IN THE COURT OF APPEALS AND
ULTIMATELY BY CERTIORARI IN THIS COURT.  THAT QUESTION WAS NOT RESOLVED
BY THIS COURT, SINCE WE DENIED CERTIORARI IN THE CRAWFORD CASE.  IN THE
CRAWFORD CASE THE QUESTION TENDERED ON THE MERITS WAS WHETHER THE
RESTRICTION OF COURT-MARTIAL MEMBERSHIP TO SENIOR NONCOMMISSIONED
OFFICERS, EXCLUDING ENTIRE CLASSES OF STATUTORILY ELIGIBLE PROSPECTIVE
COURT-MARTIAL MEMBERS DEPRIVED PETITIONER OF DUE PROCESS AND VIOLATED
10 U.S.C. SEC. 825 SO AS TO DEPRIVE THE COURT-MARTIAL OF JURISDICTION. 
FOR THE DECISION OF THE COURT OF MILITARY APPEALS SEE UNITED STATES V.
CRAWFORD, 15 U.S.C. M. A. 31, 35 C. M. R. 3.  AND SEE SCHIESSER, TRIAL
BY PEERS:  ENLISTED MEMBERS ON COURTS-MARTIAL, 15 CATH.  U. L. REV. 171
(1966). 

/4/  THE COURT OF MILITARY APPEALS DECIDED THAT O'CALLAHAN V. PARKER
WOULD BE APPLIED ONLY TO THOSE CONVICTIONS THAT WERE NOT FINAL BEFORE
THE DATE OF THAT DECISION.  MERCER V. DILLON, 19 U.S.C. M. A. 264, 41
C. M. R. 264 (1970). 

/5/  FOR PURPOSES OF HABEAS CORPUS, HISTORICALLY USED TO TEST THE
"JURISDICTION" OF TRIBUNALS TO TRY DEFENDANTS, THE CONCEPT HAS BEEN
BROADENED TO INCLUDE CONSTITUTIONAL GUARANTEES.  THUS IN JOHNSON V.
ZERBST, 304 U.S. 458, COMPLIANCE WITH THE CONSTITUTIONAL MANDATE THAT
AN ACCUSED IS ENTITLED TO COUNSEL WAS HELD TO BE "AN ESSENTIAL
JURISDICTIONAL PREREQUISITE TO A FEDERAL COURT'S AUTHORITY TO DEPRIVE
AN ACCUSED OF HIS LIFE OR LIBERTY."  ID., AT 467.  THE RULE ANNOUNCED
USED "JURISDICTION" IN AN INNOVATIVE WAY WITH THE PURPOSE OF GIVING
COUNSEL TO DEFENDANTS WHO UP TO THE TIME OF OUR DECISIONS IN GIDEON V.
WAINWRIGHT, 372 U. S. 335, AND ARGERSINGER V. HAMLIN, 407 U. S. 25, HAD
NO LAWYERS TO REPRESENT THEM AND THUS WERE COMMONLY DEPRIVED OF THEIR
CONSTITUTIONAL RIGHTS. 

/6/  SEE N. 2, SUPRA. 

MR. JUSTICE REHNQUIST, CONCURRING IN THE JUDGMENTS. 

I DO NOT BELIEVE THAT DECISIONS OF THIS COURT WOULD SUPPORT A
HOLDING THAT THE RULE ANNOUNCED IN O,CALLAHAN V. PARKER, 395 U.S 258
(1969), SHOULD NOT BE APPLIED RETROACTIVELY TO COURT -MARTIAL
CONVICTIONS ENTERED BEFORE THE DECISION IN THAT CASE.  IN O'CALLAHAN,
THE COURT CLEARLY HELD THAT COURTS-MARTIAL DID NOT HAVE JURISDICTION TO
TRY SERVICEMEN FOR "NON-SERVICE CONNECTED" CRIMES.  FOR SUBSTANTIALLY
THE REASONS STATED BY MY BROTHER MARSHALL, I BELIEVE THAT ROBINSON V.
NEIL, 409 U.S. 505 (1973), AND PRIOR DECISIONS MANDATE THAT O'CALLAHAN
BE APPLIED RETROACTIVELY. 

IN NO. 71-6314, SINCE I BELIEVE THAT THE O'CALLAHAN RULE COULD NOT IN
ANY EVENT BE GIVEN ONLY PROSPECTIVE APPLICATION, THE QUESTION ARISES
WHETHER THE ANALYTICAL INQUIRY SANCTIONED BY THAT DECISION SHOULD EVEN
BE UNDERTAKEN.  O'CALLAHAN, WAS, IN MY OPINION, WRONGLY DECIDED, AND I
WOULD OVERRULE IT FOR THE REASONS SET FORTH BY MR. JUSTICE HARLAN IN
HIS DISSENTING OPINION.  395 U.S., AT 274-284. 

IN NO 71-1398, EVEN IF O'CALLAHAN WERE FOLLOWED, I AGREE WITH THE
VIEWS OF MY BROTHER STEWART.  THE OFFENSE WAS COMMITTED DURING A PERIOD
OF DECLARED WAR, AND FURTHERMORE WHILE RESPONDENT WAS ABSENT WITHOUT
OFFICIAL LEAVE FROM HIS MILITARY DUTIES.  FOR PURPOSES OF THE "SERVICE
CONNECTED" - "NON-SERVICE CONNECTED" DICHOTOMY ANNOUNCED BY O'CALLAHAN,
I WOULD HOLD THAT ANY CRIME COMMITTED BY A MEMBER OF THE ARMED FORCES
DURING TIME OF WAR IS "SERVICE CONNECTED," AND THAT HE CAN VALIDLY BE
TRIED BY A COURT-MARTIAL FOR THAT OFFENSE.  CF. RELFORD V. COMMANDANT,
401 U.S. 355 (1971). 

I THEREFORE CONCUR IN THE JUDGMENTS OF THE COURT, AND WOULD AFFIRM
THE JUDGMENT OF THE COURT OF APPEALS IN NO. 71-6314 AND REVERSE THAT IN
NO. 71-1398. 

MR. JUSTICE STEWART, DISSENTING IN NO. 71-6314, GOSA V. MAYDEN, AND,
JOINED BY MR. JUSTICE DOUGLAS, CONCURRING IN THE RESULT IN NO. 71-1398,
WARNER V. FLEMINGS. 

I DISSENTED IN O'CALLAHAN V. PARKER, 395 U.S. 258, 274 (1969), AND
CONTINUE TO BELIEVE THAT THAT CASE WAS WRONGLY DECIDED.  UNTIL OR
UNLESS O'CALLAHAN IS OVERRULED, HOWEVER, I THINK IT MUST BE GIVEN FULLY
RETROACTIVE APPLICATION FOR THE REASONS STATED IN MY BROTHER MARSHALL'S
PERSUASIVE DISSENTING OPINION, POST, THIS PAGE.  ACCORDINGLY, I JOIN
HIS DISSENTING OPINION AS IT APPLIES TO NO. 71-6314, GOSA V. MAYDEN. 

BUT THAT VIEW, IN MY OPINION, DOES NOT DISPOSE OF NO. 71-1398,
WARNER V. FLEMINGS.  I THINK THAT A SERVICEMAN WHO DESERTS HIS POST
DURING A TIME OF CONGRESSIONALLY DECLARED WAR AND STEALS AN AUTOMOBILE
IS GUILTY OF A "SERVICE CONNECTED" OFFENSE.  ACCORDINGLY, I CONCLUDE
THAT THE RESPONDENT FLEMINGS WAS PROPERLY TRIED BEFORE A COURT-MARTIAL
UNDER O'CALLAHAN.  CF. RELFORD V. COMMANDANT, 401 U.S. 355, 365
(1971).  FOR THIS REASON I CONCUR IN THE RESULT REACHED BY THE COURT IN
THE FLEMINGS CASE. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

        I 

MR. JUSTICE BLACKMUN'S PLURALITY OPINION, BY ITS EFFORTS TO
ESTABLISH THAT O'CALLAHAN V. PARKER, 395 U. S. 258 (1969), WAS NOT A
DECISION DEALING WITH JURISDICTION IN ITS CLASSIC FORM, IMPLICITLY
ACKNOWLEDGES THAT IF O'CALLAHAN WERE IN FACT CONCERNED WITH THE
ADJUDICATORY POWER--THAT IS, THE JURISDICTIONAL COMPETENCY /1/  --OF
MILITARY TRIBUNALS, ITS HOLDING WOULD NECESSARILY BE FULLY RETROACTIVE
IN EFFECT, CF. E. G., LINKLETTER V. WALKER, 381 U. S. 618, 623 (1965). 
THE PLURALITY NOW PUTS FORTH THE VIEW THAT O'CALLAHAN WAS NOT CONCERNED
WITH THE TRUE JURISDICTIONAL COMPETENCY OF COURTS-MARTIAL BUT THAT THE
DECISION YIELDED MERELY A NEW CONSTITUTIONAL RULE.  THIS
CHARACTERIZATION OF O'CALLAHAN PERMITS THE PLURALITY TO APPLY IN THIS
CASE THE THREE-PRONG TEST EMPLOYED TO JUDGE THE RETROACTIVITY OF NEW
PROCEDURAL RULES UNDER LINKLETTER AND ITS PROGENY, SEE, E. G., DESIST
V. UNITED STATES, 394 U. S. 244, 249 (1969); STOVALL V. DENNO, 388 U.
S. 293, 297 (1967).  AND, NOT SURPRISINGLY, APPLICATION OF THAT TEST
LEADS TO THE CONCLUSION THAT O'CALLAHAN SHOULD HAVE ONLY PROSPECTIVE
EFFECT.  WITH ALL DUE RESPECT, I MUST DISSENT. 

I AM UNABLE TO AGREE WITH THE PLURALITY'S CHARACTERIZATION OF
O'CALLAHAN.  IN MY VIEW, IT CAN ONLY BE UNDERSTOOD AS A DECISION
DEALING WITH THE CONSTITUTIONAL LIMITS OF THE MILITARY'S ADJUDICATORY
POWER OVER OFFENSES COMMITTED BY SERVICEMEN.  NO DECISION COULD MORE
PLAINLY INVOLVE THE LIMITS OF A TRIBUNAL'S POWER TO EXERCISE
JURISDICTION OVER PARTICULAR OFFENSES AND THUS MORE CLEARLY DEMAND
RETROACTIVE APPLICATION. 

        A 

IN HOLDING THAT O'CALLAHAN IS TO BE GIVEN ONLY PROSPECTIVE EFFECT,
THE PLURALITY DOES NOT REJECT OUTRIGHT THE VIEW THAT THE DECISION WAS
JURISDICTIONAL IN NATURE.  YET IT CLEARLY DOES REJECT THE CONTENTION
THAT O'CALLAHAN DEALT WITH A QUESTION OF TRUE JURISDICTIONAL
COMPETENCY, FOR WE ARE TOLD THAT THE DECISION "DID ANNOUNCE A NEW
CONSTITUTIONAL PRINCIPLE," ANTE, AT 673, AND THAT IT REALLY "DEALT WITH
THE APPROPRIATE EXERCISE OF JURISDICTION BY MILITARY TRIBUNALS," ANTE,
AT 674.  THE DIFFERENCE BETWEEN A DECISION CONCERNING A TRIBUNAL'S
JURISDICTIONAL COMPETENCY--THAT IS, THE LIMITS OF ITS ADJUDICATORY
POWER--AND "THE APPROPRIATE EXERCISE OF (ITS) JURISDICTION" IS LESS
THAN CLEAR TO ME, AT LEAST WHERE, AS HERE, THE QUESTION OF
"APPROPRIATENESS" ULTIMATELY TURNS ON THE EXTENT OF CONGRESS'
CONSTITUTIONAL AUTHORITY UNDER ART. I, ^ 8, CL. 14, TO "MAKE RULES FOR
THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES."  BUT
WHATEVER THE NATURE OF THE DISTINCTION THAT THE PLURALITY NOW SEEKS TO
DRAW, IT CANNOT, IN MY OPINION, OBSCURE THE ESSENTIAL CHARACTER OF THE
DECISION IN O'CALLAHAN. 

O'CALLAHAN REQUIRED THIS COURT TO DEFINE THE CLASS OF OFFENSES
COMMITTED BY SERVICEMEN THAT CONGRESS, UNDER ART. I, ^ 8, CL. 14, COULD
CONSTITUTIONALLY EMPOWER MILITARY TRIBUNALS TO TRY.  THE NATURE OF THE
ULTIMATE INQUIRY THERE IS PLAIN FROM THE QUESTION UPON WHICH THE COURT
GRANTED CERTIORARI:  "'DOES A COURT-MARTIAL, HELD UNDER THE ARTICLES OF
WAR, TIT. 10, U.S.C. ^ 801 ET SEQ., HAVE JURISDICTION TO TRY A MEMBER
OF THE ARMED FORCES WHO IS CHARGED WITH COMMISSION OF A CRIME
COGNIZABLE IN A CIVILIAN COURT AND HAVING NO MILITARY SIGNIFICANCE,
ALLEGED TO HAVE BEEN COMMITTED OFF-POST AND WHILE ON LEAVE, THUS
DEPRIVING HIM OF HIS CONSTITUTIONAL RIGHTS TO INDICTMENT BY GRAND JURY
AND TRIAL BY A PETIT JURY IN A CIVILIAN COURT?'"  395 U. S., AT 261. 
THE O'CALLAHAN COURT'S DISCUSSION OF THIS ISSUE WAS CONSISTENTLY
COUCHED IN TERMS OF THE JURISDICTION OF MILITARY TRIBUNALS; /2/  AND,
IN DISSENT, MR. JUSTICE HARLAN, TOO, FRAMED THE ISSUE PRESENTED IN THE
UNMISTAKABLE TERMS OF "THE APPROPRIATE SUBJECT-MATTER JURISDICTION OF
COURTS-MARTIAL," ID., AT 276.  EVEN THE COURT OF APPEALS IN NO. 71 -
6314, WHILE ULTIMATELY HOLDING THE O'CALLAHAN DECISION TO BE
PROSPECTIVE ONLY, ACKNOWLEDGED THAT THE DECISION TURNED UPON A
DETERMINATION OF "LACK OF ADJUDICATORY POWER"--THAT O'CALLAHAN'S
FOUNDATION, FRAMEWORK AND STRUCTURE DENY TO THE LEGISLATION WHICH
BREATHED THE BREATH OF JUDICIAL LIFE INTO THE FORUM THAT TRIED SGT.
O'CALLAHAN, THE NECESSARY BASIS IN CONSTITUTIONAL POWER TO REACH HIS
TYPE OF CASE."  /3/ 450 F. 2D 753, 757 (CA5 1971).  SEE ALSO UNITED
STATES EX REL.  FLEMINGS V. CHAFEE, 458 F. 2D 544, 549 - 550 (CA2
1972).     DESPITE THE EVIDENT JURISDICTIONAL NATURE OF THE ULTIMATE
ISSUE PRESENTED IN O'CALLAHAN, THE PLURALITY ATTEMPTS TO ANALOGIZE THIS
CASE TO DE STEFANO V. WOODS, 392 U. S. 631 (1968), WHERE THE COURT HELD
THAT THE DECISIONS IN DUNCAN V. LOUISIANA, 391 U. S. 145 (1968), AND
BLOOM V. ILLINOIS, 391 U. S. 194 (1968), WERE TO HAVE ONLY PROSPECTIVE
EFFECT.  DUNCAN HELD THAT THE SIXTH AMENDMENT GUARANTEE OF TRIAL BY
JURY IN CRIMINAL CASES HAD BEEN MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT.  AND BLOOM ESTABLISHED THE RIGHT OT JURY TRIAL IN
THE CONTEXT OF SERIOUS CRIMINAL CONTEMPT PROCEEDINGS.  DE STEFANO--LIKE
THE OTHER OFFSPRING OF LINKLETTER THAT HAVE APPLIED THE THREE-PRONG
TEST TO DETERMINE RETROACTIVITY--INVOLVED CONSTITUTIONAL RULINGS THAT
ESTABLISHED NEW PROCEDURES FOR THE CONDUCT OF TRIAL OR FOR THE USE OF
EVIDENCE.  BUT O'CALLAHAN HARDLY WAS SUCH A CASE. 

THE COURT IN O'CALLAHAN WAS NOT SETTING FORTH PROCEDURES WHICH THE
MILITARY WAS CONSTITUTIONALLY REQUIRED TO ADOPT IN ITS PROCEEDINGS. 
HAD THE COURT BEEN DOING SO, THIS WOULD CERTAINLY BE A DIFFERENT CASE;
THE ANALOGY TO DESTEFANO THEN MIGHT WELL BE APPROPRIATE.  IT IS TRUE,
AS THE PLURALITY NOW POINTS OUT, THAT THE O'CALLAHAN COURT PLACED
CONSIDERABLE EMPHASIS ON THE LACK OF JURY TRIAL IN THE COURT-MARTIAL
SYSTEM.  BUT IT DID SO ONLY AS A PART OF THE GENERAL ANALYTIC PROCESS
OF DETERMINING THE PROPER RECONCILIATION OF THE COMPETING JURISDICTIONS
OF TWO ESSENTIALLY DISTINCT /4/  JUDICIAL SYSTEMS, NAMELY, THE CIVIL
AND MILITARY SYSTEMS OF JUSTICE.  THE COURT'S BASIC CONCERN IN THIS
PROCESS WAS THE PRESERVATION--TO THE FULLEST EXTENT POSSIBLE CONSISTENT
WITH THE LEGITIMATE NEEDS OF THE MILITARY--OF THE FUNDAMENTAL CIVIL
RIGHTS GUARANTEED BY OUR CONSTITUTION AND BILL OF RIGHTS.  THOSE CIVIL
RIGHTS WERE, IN THE COURT'S WORDS, THE "CONSTITUTIONAL STAKES IN THE .
. . LITIGATION."  O'CALLAHAN V. PARKER, SUPRA, AT 262. 

THUS, THE COURT POINTED OUT THAT ONE TRIED BEFORE A MILITARY
TRIBUNAL IS WITHOUT THE BENEFIT OF NOT ONLY TRIAL BY JURY BUT ALSO
INDICTMENT BY A GRAND JURY.  ID., AT 262.  NOR ARE THE SAME RULES OF
EVIDENCE AND PROCEDURE APPLICABLE IN A MILITARY PROCEEDING, A FACTOR
AFFECTING, FOR EXAMPLE, THE DEFENSE'S ACCESS TO COMPULSORY PROCESS,
ID., AT 264 N. 4.  IN ADDITION, THE COURT WAS CONCERNED WITH THE FACT
THAT THE PRESIDING OFFICERS AT COURTS-MARTIAL DO NOT ENJOY THE
INDEPENDENCE THAT IS THOUGHT TO FLOW FROM LIFE TENURE AND
UNDIMINISHABLE SALARY.  TO THE CONTRARY, THE COURT RECOGNIZED THAT "THE
POSSIBILITY OF INFLUENCE ON THE ACTIONS OF THE COURT-MARTIAL BY THE
OFFICER WHO CONVENES IT, SELECTS ITS MEMBERS AND THE COUNSEL ON BOTH
SIDES, AND WHO USUALLY HAS DIRECT COMMAND AUTHORITY OVER ITS MEMBERS IS
A PERVASIVE ONE IN MILITARY LAW, DESPITE STRENUOUS EFFORTS TO ELIMINATE
THE DANGER."  ID., AT 264.  IN SHORT, THE COURT CONCLUDED THAT "(A)
COURT-MARTIAL IS NOT YET AN INDEPENDENT INSTRUMENT OF JUSTICE BUT
REMAINS TO A SIGNIFICANT DEGREE A SPECIALIZED PART OF THE OVERALL
MECHANISM BY WHICH MILITARY DISCIPLINE IS PRESERVED,"  ID., AT 265. 

THE COURT'S PURPOSE IN CONSIDERING THESE FACTORS WAS NOT TO REQUIRE
CHANGES IN THE MILITARY SYSTEM OF JUSTICE, BUT RATHER TO ILLUSTRATE ITS
"FUNDAMENTAL DIFFERENCES FROM . . . THE CIVILIAN COURTS," ID., AT 262,
DIFFERENCES THAT COMPELLED THE COURT "'TO RESTRICT MILITARY TRIBUNALS
TO THE NARROWEST JURISDICTION DEEMED ABSOLUTELY ESSENTIAL TO
MAINTAINING DISCIPLINE AMONG TROOPS IN ACTIVE SERVICE,'" ID., AT 265,
QUOTING FROM TOTH V. QUARLES, 350 U. S. 11, 22 (1955).  AS A RESULT,
THE COURT CONCLUDED THAT THE "CRIME TO BE UNDER MILITARY JURISDICTION
MUST BE SERVICE CONNECTED . . .," 395 U. S., AT 272, SO THAT THE POWER
OF CONGRESS UNDER ART. I, ^ 8, CL. 14, TO "MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES," AND ALSO THE
EXEMPTION FROM THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT FOR
"CASES ARISING IN THE LAND OR NAVAL FORCES, OR IN THE MILITIA, WHEN IN
ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER" ARE NOT EXPANDED TO
DEPRIVE SERVICEMEN UNJUSTIFIABLY OF THEIR CIVIL RIGHTS.  /5/  THE COURT
FOUND THAT WHEN AN OFFENSE IS NOT SERVICE CONNECTED, THE NEEDS OF THE
MILITARY ARE NOT SIGNIFICANTLY IMPLICATED AND THUS THAT THE LIMITS OF
CONGRESS' CONSTITUTIONAL POWER OVER SERVICEMEN UNDER ART. I, ^ 8, CL.
14, HAVE BEEN PASSED, AT LEAST IN THE CONTEXT OF "PEACETIME OFFENSES,"
395 U. S., AT 273. 

CERTAINLY THE JURISDICTIONAL NATURE OF THE O'CALLAHAN DECISION IS
AMPLY DEMONSTRATED BY THIS COURT'S PREVIOUS DECISION IN MCCLAUGHRY V.
DEMING, 186 U.S. 49 (1902).  THERE THE COURT WAS CALLED UPON TO DECIDE
"THE POWER OF AN OFFICER CONVENING A COURT-MARTIAL FOR THE TRIAL OF AN
OFFICER OF VOLUNTEERS (RESERVE TROOPS), TO COMPOSE THAT COURT ENTIRELY
OF OFFICERS OF THE REGULAR ARMY."  ID., AT 53.  THE COURT DETERMINED
THAT CONGRESS HAD DIRECTED BY STATUTE THAT VOLUNTEER OFFICERS OF THE
ARMY BE TRIED ONLY BY COURT-MARTIAL COMPOSED OF VOLUNTEER OFFICERS.  IN
LIGHT OF THIS DETERMINATION THE COURT CONCLUDED: 

"AS TO THE OFFICER TO BE TRIED THERE WAS NO COURT, FOR IT SEEMS TO
US THAT IT CANNOT BE CONTENDED THAT MEN, NOT ONE OF WHOM IS AUTHORIZED
BY LAW TO SIT, BUT ON THE CONTRARY ALL OF WHOM ARE FORBIDDEN TO SIT,
CAN CONSTITUTE A LEGAL COURT-MARTIAL BECAUSE DETAILED TO ACT AS SUCH
COURT BY AN OFFICER WHO IN MAKING SUCH DETAIL ACTED CONTRARY TO AND IN
COMPLETE VIOLATION OF LAW.  WHERE DOES SUCH A COURT OBTAIN JURISDICTION
TO PERFORM A SINGLE OFFICIAL FUNCTION?  HOW DOES IT GET JURISDICTION
OVER ANY SUBJECT-MATTER OR OVER THE PERSON OF ANY INDIVIDUAL?  THE
PARTICULAR TRIBUNAL IS A MERE CREATURE OF THE STATUTE, AS WE HAVE SAID,
AND MUST BE CREATED UNDER ITS PROVISIONS."  ID., AT 64. 

IN THE SAME VEIN, THE COURT ELSEWHERE STATED:  "A COURT-MARTIAL IS
THE CREATURE OF STATUTE, AND, AS A BODY OR TRIBUNAL, IT MUST BE
CONVENED AND CONSTITUTED IN ENTIRE CONFORMITY WITH THE PROVISIONS OF
THE STATUTE, OR ELSE IT IS WITHOUT JURISDICTION."  ID., AT 62.  BECAUSE
OF THE FLAW IN THE COMPOSITION OF THE COURT-MARTIAL, A FLAW WHICH THE
COURT CONSIDERED DETERMINATIVE ON THE ISSUE OF THE COURT-MARTIAL'S
JURISDICTION, THE COURT AFFIRMED A LOWER COURT'S RELEASE FROM MILITARY
CUSTODY.  SIGNIFICANTLY, THIS WRIT WAS ISSUED AT A TIME WHEN HABEAS
CORPUS CLEARLY LAY ONLY WHERE THE COURT-MARTIAL HAD "NO JURISDICTION
OVER THE PERSON OF THE DEFENDANT OR THE SUBJECT-MATTER OF THE CHARGES
AGAINST HIM."  ID., AT 69.  /6/  IN O'CALLAHAN THE COURT WAS NOT
CONCERNED WITH THE COMPOSITION OF A PARTICULAR COURT-MARTIAL, BUT WITH
THE FUNDAMENTAL QUESTION OF THE EXTENT OF CONGRESS' CONSTITUTIONAL
POWER TO ESTABLISH COURT-MARTIAL, BUT WITH THE FUNDAMENTAL QUESTION OF
THE EXTENT OF CONGRESS' CONSTITUTIONAL POWER TO ESTABLISH COURT-MARTIAL
JURISDICTION OVER OFFENSES COMMITED BY OUR SERVICEMEN.  IF THE FORMER
ISSUE GOES TO THE JURISDICTION OF MILITARY TRIBUNALS, CERTAINLY THE
LATTER DOES. 

        B 

WITH THIS UNDERSTANDING OF O'CALLAHAN, I BELIEVE, CONTRARY TO THE
PLURALITY'S VIEW, THAT THE RETROACTIVE APPLICATION OF OUR HOLDING THERE
IS REQUIRED BY OUR PRIOR DECISIONS IN ROBINSON V. NEIL, 409 U. S. 505
(1973), AND UNITED STATES V. U. S. COIN & CURRENCY, 401 U. S. 715, 722
724 (1971).  ROBINSON INVOLVED THE RETROACTIVE APPLICATION OF THE
DECISION IN WALLER V. FLORIDA, 397 U. S. 387 (1970), THAT THE FIFTH
AMENDMENT'S GUARANTEE, MADE APPLICABLE TO THE STATES THROUGH THE
FOURTEENTH AMENDMENT, THAT NO PERSON SHOULD BE PUT TWICE IN JEOPARDY
FOR THE SAME OFFENSE BARRED AN INDIVIDUAL'S PROSECUTION FOR A SINGLE
OFFENSE BY BOTH A STATE AND A MUNICIPALITY OF THE STATE, THAT IS, A
LEGAL SUBDIVISION OF THE STATE.  U. S. COIN & CURRENCY HELD RETROACTIVE
THE COURT'S PRIOR DETERMINATION THAT THE FIFTH AMENDMENT PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION BARRED THE PROSECUTION OF
GAMBLERS FOR FAILURE TO REGISTER AND TO REPORT ILLEGAL GAMBLING
PROCEEDS FOR TAX PURPOSES, SEE MARCHETTI V. UNITED STATES, 390 U. S. 39
(1968); GROSSO V. UNITED STATES, 390 U. S. 62 (1968). 

IN DECIDING WHETHER TO GIVE RETROACTIVE EFFECT TO WALLER, MARCHETTI,
AND GROSSO, THE COURT REJECTED CONTENTIONS THAT IT SHOULD APPLY THE
THREE-PRONG TEST EMPLOYED IN CASES SUCH AS STOVALL V. DENNO, 388 U. S.
293 (1967), DESIST V. UNITED STATES, 394 U. S. 244 (1969), AND DE
STEFANO V. WOODS, 392 U. S. 631 (1968).  IN U. S. COIN & CURRENCY, MR.
JUSTICE HARLAN, SPEAKING FOR THE COURT, EXPLAINED:

  UNLIKE SOME OF OUR EARLIER RETROACTIVITY DECISIONS, WE ARE NOT
HERE CONCERNED WITH THE

  IMPLEMENTATION OF A PROCEDURAL RULE WHICH DOES NOT UNDERMINE THE
BASIC ACCURACY OF THE

  FACTFINDING PROCESS AT TRIAL.  LINKLETTER V. WALKER, 381 U. S.
618 (1965); TEHAN V. SHOTT, 382

U. S. 406 (1966); JOHNSON V. NEW JERSEY, 384 U. S. 719 (1966);
STOVALL V. DENNO, 388 U. S. 293

  (1967).  RATHER, MARCHETTI AND GROSSO DEALT WITH THE KIND OF
CONDUCT THAT CANNOT

CONSTITUTIONALLY BE PUNISHED IN THE FIRST INSTANCE."  401 U. S., AT
723. 

THE ROBINSON COURT ADOPTED ESSENTIALLY THE SAME VIEW OF THE WALLER
DECISION CONCERNING THE DOUBLE JEOPARDY CLAUSE AND MULTIPLE
PROSECUTIONS BY DIFFERENT LEGAL SUBDIVISIONS OF A SINGLE SOVEREIGN. 
SEE 409 U. S., AT 508.  IN THIS CASE, TOO, WE ARE CONCERNED, NOT WITH
"THE IMPLEMENTATION OF A PROCEDURAL RULE," BUT WITH AN UNAVOIDABLE
CONSTITUTIONAL IMPEDIMENT TO THE PROSECUTION OF PARTICULAR CONDUCT. 

IN O'CALLAHAN, AS HAS BEEN SEEN, THE ULTIMATE ISSUE WAS THE EXTENT
OF THE CONSTITUTIONAL POWER THAT UNDERLIES THE JURISDICTION OF MILITARY
TRIBUNALS.  WHERE AN OFFENSE LIES OUTSIDE THE LIMITS OF THAT POWER,
THERE EXISTS JUST AS MUCH OF A CONSTITUTIONAL IMPEDIMENT TO TRIAL IN
MARCHETTI AND GROSSO DUE TO THE PRIVILEGE AGAINST SELF-INCRIMINATION OR
IN WALLER DUE TO THE DOUBLE JEOPARDY CLAUSE.  IT CANNOT BE FORGOTTEN
THAT MILITARY TRIBUNALS ARE COURTS OF LIMITED JURISDICTION.  SEE MC
CLAUGHRY V. DEMING, 186 U. S., AT 63; EX PARTE WATKINS, 3 PET. 193, 209
(1830).  THEY CANNOT EXERCISE AUTHORITY WHICH CONGRESS IS WITHOUT
CONSTITUTIONAL POWER TO CONFER.  /7/  IT IS THIS FUNDAMENTAL PRINCIPLE
THAT COMPELS RETROACTIVE APPLICATION OF THE DECISION IN O'CALLAHAN. 

THE PLURALITY SEEKS TO DISTINGUISH U. S. COIN & CURRENCY AND
ROBINSON ON THE GROUNDS THAT THE FORMER INVOLVED A RIGHT THAT PREVENTED
THE OFFENDER FROM BEING TRIED AT ALL AND THE LATTER A RIGHT THAT
PREVENTED "ANOTHER TRIAL FROM TAKING PLACE AT ALL,"  ANTE, AT 679,
WHEREAS THE UNDERLYING ISSUE IN THIS CASE IS MERELY WHICH JURISDICTION
CAN TRY OFFENSES COMMITTED BY SERVICEMEN.  BUT THESE ARE DISTINCTIONS
WITHOUT MEANING; THEY MERELY REFLECT THE DIFFERENCES IN THE NATURE OF
THE CONSTITUTIONAL IMPEDIMENT TO TRIAL AT ISSUE IN EACH CASE.  THE
ESSENTIAL COMMON THREAD TYING THESE CASES TOGETHER IS THAT EACH
INVOLVED, AT THE LEAST, A CONSTITUTIONAL BARRIER TO TRIAL BEFORE THE
PARTICULAR FORUM, REGARDLESS OF THE FAIRNESS OF THE PROCEDURES AND THE
FACTFINDING PROCESS OF THE RELEVANT FORUM. 

U. S. COIN & CURRENCY SWEPT BROADLY, TO BE SURE, FOR IT CONCERNED A
CONSTITUTIONAL GUARANTEE THAT EFFECTIVELY PREVENTED ANY TRIAL OF THE
OFFENDER FOR THE PARTICULAR OFFENSE.  BUT THE NATURE OF THE DOUBLE
JEOPARDY CLAUSE AT ISSUE IN ROBINSON IS SUCH THAT THE OFFENDER MAY BE
TRIED ONCE FOR A PARTICULAR OFFENSE BY A COURT OF A PARTICULAR
SOVEREIGN; IT IS THE SECOND PROSECUTION FOR THE SAME OFFENSE BY ANOTHER
COURT OF THE SAME SOVEREIGN THAT THAT CLAUSE CLEARLY BARS.  SIMILARLY
HERE, A SERVICEMAN CHARGED WITH A NONSERVICE-CONNECTED OFFENSE IS
SUBJECT TO TRIAL FOR THAT OFFENSE BY CIVIL TRIBUNALS, BUT MILITARY
TRIBUNALS LACK THE NECESSARY CONSTITUTIONAL POWER, AT LEAST IN
PEACETIME, TO TRY SUCH AN OFFENSE.  AS WAS TRUE IN ROBINSON, THIS CASE
INVOLVES A CONSTITUTIONAL BARRIER TO ADJUDICATION OF A PARTICULAR
OFFENSE BY A PARTICULAR FORUM, YET IN NEITHER CASE DOES IT FOLLOW THAT
THE OFFENDER IS CONSTITUTIONALLY ENTITLED TO GO UNPUNISHED ALTOGETHER. 
I FAIL TO SEE, THEREFORE, WHY DIFFERENT RULES FROM THOSE APPLIED ONLY
RECENTLY IN ROBINSON SHOULD BE APPLIED IN THIS CASE. 

THERE IS, OF COURSE, THE ADDITIONAL FACT THAT THE ROBINSON COURT
LEFT OPEN THE QUESTION WHETHER REASONABLE, OFFICIAL RELIANCE UPON A
PARTICULAR RULE MIGHT PROPERLY BE CONSIDERED "IN DETERMINING
RETROACTIVITY OF A NONPROCEDURAL CONSTITUTIONAL DECISION SUCH AS
WALLER."  409 U. S., AT 511.  /8/  AND IN THIS CASE THE PLURALITY, IN
ATTEMPTING TO ESTABLISH THAT O'CALLAHAN WAS A "'CLEAR BREAK WITH THE
PAST,'" ANTE, AT 672, CITING DESIST V. UNITED STATES, 394 U. S., AT
248, AND SHOULD THEREFORE BE APPLIED ONLY PROSPECTIVELY, DOES MAKE MUCH
OF THE ARGUMENT THAT SUBSTANTIAL, JUSTIFIABLE RELIANCE WAS PLACED ON
PRE-O'CALLAHAN LAW CONCERNING THE EXERCISE OF COURT-MARTIAL
JURISDICTION OVER SERVICEMEN, SEE ANTE, AT 672 - 673.  BUT I SERIOUSLY
QUESTION THE RELEVANCE OF ANY INQUIRY INTO OFFICIAL RELIANCE ON PRIOR
LAW WHERE, AS HERE, THE ISSUE IS JURISDICTIONAL COMPETENCY.  EVEN
ASSUMING FOR THE MOMENT THAT O'CALLAHAN COMPLETELY REINTERPRETED THE
LIMITS OF CONGRESS' POWER TO CONFER JURISDICTION ON COURTS-MARTIAL, THE
DECISION INVOLVED THE AUTHORITATIVE CONSTRUCTION OF A CONSTITUTIONAL
PROVISION AND NO MILITARY TRIBUNAL COULD EVER CONSTITUTIONALLY HAVE HAD
MORE POWER THAN RESIDED THEREIN.  BUT THE REAL POINT IS THAT O'CALLAHAN
DID NOT MARK A SHARP, NEW DEPARTURE FROM PRIOR LAW. 

THE PLURALITY ACKNOWLEDGES THAT O'CALLAHAN DID NOT INVOLVE THE
OVERRULING OF ANY PRIOR PRECEDENT, ANTE, AT 673.  IT IS TRUE, AS THE
PLURALITY INDICATES, THAT A NUMBER OF PRIOR DECISIONS HAD SUGGESTED
THAT "MILITARY STATUS IN ITSELF WAS SUFFICIENT FOR THE EXERCISE OF
COURT-MARTIAL JURISDICTION," IBID.  YET NONE OF THE CASES UPON WHICH
THE PLURALITY RELIES DEALT IN FACT WITH A NONSERVICECONNECTED OFFENSE
COMMITTED BY A SERVICEMAN IN PEACETIME.  /9/  IT IS FAIR TO SAY, IN
SHORT, THAT UNTIL O'CALLAHAN THE COURT HAD NOT DIRECTLY FACED THE ISSUE
OF THE SERVICECONNECTED NATURE OF SERVICEMEN'S OFFENSES.     MORE
IMPORTANTLY, PERHAPS, THE O'CALLAHAN COURT'S EFFORTS TO DEFINE THE
CONSTITUTIONAL LIMITS OF THE JURISDICTION OF COURTS-MARTIAL WAS HARDLY
THE BEGINNING OF SUCH EFFORTS BY THE COURT.  O'CALLAHAN WAS BUT ONE OF
A SERIES OF STEPS TAKEN BY THIS COURT SINCE THE CONCLUSION OF THE
SECOND WORLD WAR TO RESTRICT MILITARY JURISDICTION TO ITS
CONSTITUTIONALLY APPROPRIATE LIMITS.  THUS, IN TOTH V. QUARLES, 350 U.
S. 11 (1955), THE COURT RULED THAT A DISCHARGED SERVICEMAN COULD NOT BE
TRIED BY A COURT-MARTIAL FOR OFFENSES COMMITTED WHILE A MEMBER OF THE
ARMED FORCES.  SUBSEQUENTLY, IT WAS ESTABLISHED THAT COURTS-MARTIAL DID
NOT HAVE JURISDICTION TO TRY OFFENSES COMMITTED BY CIVILIAN DEPENDENTS
ACCOMPANYING MILITARY PERSONNEL SERVING OVERSEAS.  KINSELLA V.
SINGLETON, 361 U. S. 234 (1960); REID V. COVERT, 354 U. S. 1 (1957). 
FINALLY, THE COURT HELD THAT CIVILIANS EMPLOYED WITH THE MILITARY
OVERSEAS WERE NOT SUBJECT COURT-MARTIAL JURISDICTION.  SEE GRISHAM V.
HAGAN, 361 U. S. 278 (1960); MC ELROY V. GUAGLIARDO, 361 U. S. 281
(1960).  THIS SERIES OF CASES LIMITED THE REACH OF COURTS-MARTIAL TO
MEMBERS OF THE ARMED FORCES; THEY DID NOT REQUIRE THE COURT TO GO ON TO
DEFINE THE BREADTH OF OFFENSES FOR WHICH SERVICEMEN COULD BE TRIED BY
COURTS-MARTIAL.  NONETHELESS, THESE CASES AND O'CALLAHAN CLEARLY WERE
ALL PIECES OF THE SAME CLOTH.  UNDER THESE CIRCUMSTANCES, I SERIOUSLY
DOUBT THAT RETROACTIVE APPLICATION WOULD DO SUBSTANTIAL VIOLENCE TO ANY
LEGITIMATE, OFFICIAL RELIANCE UPON PRIOR LAW /10/  --EVEN ASSUMING THAT
TO BE A VALID CONSIDERATION HERE.  /11/

   II 

MR. JUSTICE DOUGLAS, IN HIS CONCURRING OPINION, CONTENDS THAT
PETITIONER GOSA'S CASE MERITS REARGUMENT TO CONSIDER WHETHER HE SHOULD
BE DENIED RELIEF BECAUSE HE FAILED TO RAISE HIS JURISDICTIONAL
OBJECTION BEFORE THE COURT-MARTIAL THAT TRIED HIM.  MR. JUSTICE DOUGLAS
INTIMATES THAT SINCE THE JURISDICTION OF THE MILITARY TO TRY PETITIONER
WAS NOT INITIALLY CONTESTED, "RES JUDICATA (MAY NOW BAR) INQUIRY" INTO
THE QUESTION OF JURISDICTION, ANTE, AT 689.  IN MY OPINION, SUCH AN
ARGUMENT IS CLEARLY UNTENABLE, AND HENCE REARGUMENT OF PETITIONER
GOSA'S CASE IS UNNECESSARY. 

        A 

ONE OF THE MOST BASIC PRINCIPLES OF OUR JURISPRUDENCE IS THAT
SUBJECT-MATTER JURISDICTION CANNOT BE CONFERRED UPON A COURT BY CONSENT
OF THE PARTIES.  SEE, E. G., AMERICAN FIRE & CASUALTY CO. V. FINN, 341
U. S. 6, 17 - 18 (1951); INDUSTRIAL ADDITION ASSN. V. COMMISSIONER, 323
U. S. 310, 313 (1945); PEOPLE'S BANK V. CALHOUN, 102 U. S. 256, 260 -
261 (1880); CUTLER V. RAE, 7 HOW.  729, 731 (1849).  /12/  AN OBJECTION
TO THE ADJUDICATORY POWER OF A TRIBUNAL MAY GENERALLY BE RAISED FOR THE
FIRST TIME AT ANY STAGE OF THE LITIGATION.  /13/  SEE, E. G., FLAST V.
COHEN, 392 U. S. 83, 88 N. 2 (1968); UNITED STATES V. GRIFFIN, 303 U.
S. 226, 229 (1938); FORTIER V. NEW ORLEANS NATIONAL BANK, 112 U. S.
439, 444 (1884).  THOSE PRINCIPLES ARE APPLICABLE EVEN IN THE CONTEXT
OF COLLATERAL ATTACKS UPON COURT-MARTIAL PROCEEDINGS, AS IS EVIDENT
FROM THIS COURT'S DECISION IN MCCLAUGHRY V. DEMING, 186 U. S. 49
(1902). 

MC CLAUGHRY, AS PREVIOUSLY INDICATED, INVOLVED A COLLATERAL ATTACK
UPON THE COURT-MARTIAL CONVICTION OF A VOLUNTEER OFFICER WHO CLAIMED
THAT THE REGULAR ARMY COURT-MARTIAL WHICH HAD TRIED HIM HAD BEEN
CONSTITUTED IN VIOLATION OF THE RELEVANT LAW AND THEREFORE WAS WITHOUT
JURISDICTION.  THE VOLUNTEER OFFICER HAD FAILED TO RAISE THIS
JURISDICTIONAL OBJECTION BEFORE THE COURT-MARTIAL, AND THE MILITARY
CONTENDED BEFORE THIS COURT THAT "HIS CONSENT WAIVED THE QUESTION OF
INVALIDITY," ID., AT 66.  THE COURT REJECTED HIS CONTENTION SAYING: 

"IT WAS NOT A MERE CONSENT TO WAIVE SOME STATUTORY PROVISION IN HIS
FAVOR WHICH, IF WAIVED, PERMITTED THE COURT TO PROCEED.  HIS CONSENT
COULD NO MORE GIVE JURISDICTION TO THE COURT, EITHER OVER THE SUBJECT
MATTER OR OVER HIS PERSON, THAN IF IT HAD BEEN COMPOSED OF A LIKE
NUMBER OF CIVILIANS . . . . THE FUNDAMENTAL DIFFICULTY LIES IN THE FACT
THAT THE COURT WAS CONSTITUTED IN DIRECT VIOLATION OF THE STATUTE, AND
NO CONSENT COULD CONFER JURISDICTION OVER THE PERSON OF THE DEFENDANT
OR OVER THE SUBJECT-MATTER OF THE ACCUSATION, BECAUSE TO TAKE SUCH
JURISDICTION WOULD CONSTITUTE A PLAIN VIOLATION OF LAW."  IBID. 

SEE ALSO ID., AT 68; GIVENS V. ZERBST, 255 U. S. 11, 20 (1921); VER
MEHREN V. SIRMYER, 36 F. 2D 876, 879 - 880 (CA8 1929).  JUST AS THE
SILENCE OF THE ACCUSED IN MC CLAUGHRY COULD NOT CONFER JURISDICTION ON
A COURT-MARTIAL OF THE REGULAR ARMY THAT WAS ACTING IN EXCESS OF ITS
STATUTORY AUTHORITY, SO HERE THE FAILURE OF GOSA TO RAISE HIS
JURISDICTIONAL OBJECTION BEFORE THE COURT-MARTIAL COULD NOT HAVE
CONFERRED UPON THAT TRIBUNAL AUTHORITY THAT CONSTITUTIONALLY COULD NOT
BE CONFERRED.  CONSEQUENTLY, HIS FAILURE TO OBJECT TO THE JURISDICTION
OF THE COURT-MARTIAL THAT TRIED HIM CANNOT BE DEEMED FATAL IN THIS
COURT.  /14/

        B 

MOREOVER, EVEN IF O'CALLAHAN WERE TO BE TREATED AS MERELY A
PROCEDURAL RATHER THAN AS A TRUE JURISDICTIONAL DECISION, APPLICATION
OF THE DOCTRINE OF RES JUDICATA WOULD NONETHELESS BE ENTIRELY
INAPPROPRIATE IN THE CONTEXT OF PETITIONER GOSA'S CASE SINCE THAT
ACTION WAS BROUGHT BY WAY OF A PETITION FOR FEDERAL HABEAS CORPUS. 
SPECIFICALLY, I MUST VIGOROUSLY DISAGREE WITH THE SUGGESTION,
NECESSARILY INHERENT IN MR. JUSTICE DOUGLAS' OPINION, THAT THE DOCTRINE
OF RES JUDICATA MAY HAVE SOME PLACE IN THE LAW OF FEDERAL HABEAS
CORPUS.  IN THE PAST, THIS COURT HAS INDICATED QUITE EXPLICITLY TO THE
CONTRARY: 

"AT COMMON LAW THE DOCTRINE OF RES JUDICATA DID NOT EXTEND TO A
DECISION ON HABEAS CORPUS REFUSING TO DISCHARGE THE PRISONER.  THE
STATE COURTS GENERALLY HAVE ACCEPTED THAT RULE WHERE NOT MODIFIED BY
STATUTE . . .; AND THIS COURT HAS CONFORMED TO IT AND THEREBY
SANCTIONED IT . . . . WE REGARD THE RULE AS WELL ESTABLISHED IN THIS
JURISDICTION."  SALINGER V. LOISEL, 265 U. S. 224, 230 (1924). 

SEE FAY V. NOIA, 372 U. S. 391, 423 (1963); DARR V. BURFORD, 339 U.
S. 200, 214 (1950).  INDEED, THE RULE WAS STILL "WELL ESTABLISHED IN
THIS JURISDICTION" JUST A FEW MONTHS AGO.  /15/  SEE NEIL V. BIGGERS,
409 U. S. 188, 190 - 191 (1972).  THE FEDERAL COURTS, TO BE SURE, ARE
NOT WITHOUT MEANS FOR DEALING WITH REPETITIOUS APPLICATIONS FOR HABEAS
CORPUS, SEE, E. G., SALINGER V. LOISEL, SUPRA, AT 231 - 232; 28 U.S.C.
^^ 2244 (A), (B), OR WITH APPLICATIONS RAISING QUESTIONS PREVIOUSLY
LITIGATED IN THIS COURT, SEE 28 U.S.C. ^^ 2244 (C).  BUT NO SUCH
PROBLEMS ARE PRESENTED HERE.  RATHER, A PROCEDURAL PROBLEM ARISES IN
THIS CASE BECAUSE PETITIONER GOSA FAILED TO ASSERT THE "JURISDICTIONAL"
DEFECT, WHICH HE NOW RAISES, IN SEEKING LEAVE FOR A DIRECT APPEAL TO
THE COURT OF MILITARY APPEALS.  THIS REFLECTS, IN MY VIEW, A FAILURE ON
THE PART OF GOSA TO SATISFY THE EXHAUSTION REQUIREMENT, WHICH IS
APPLIED IN THE CONTEXT OF COLLATERAL ATTACK ON FEDERAL HABEAS CORPUS,
THEREBY RAISING A SUBSTANTIAL QUESTION WHETHER HE HAS WAIVED HIS RIGHT
TO CHALLENGE THE "JURISDICTION" OF THE COURT-MARTIAL ON HABEAS CORPUS. 

THE EXHAUSTION DOCTRINE EVOLVED IN THE CONTEXT OF COLLATERAL ATTACK
ON STATE CRIMINAL PROCEEDINGS.  SEE, E. G., EX PARTE HAWK, 321 U. S.
114 (1944); EX PARTE ROYALL, 117 U. S. 241 (1886).  IT GENERALLY
REQUIRES STATE PETITIONERS TO UTILIZE AVAILABLE STATE COURT REMEDIES
BEFORE RESORTING TO FEDERAL HABEAS CORPUS, /16/  AND THUS SERVES BOTH
TO ENSURE THE ORDERLY FUNCTIONING OF STATE JUDICIAL PROCESSES, WITHOUT
DISRUPTIVE FEDERAL COURT INTERVENTION, AND TO ALLOW STATE COURTS TO
FULFILL THEIR ROLES AS CO-EQUAL PARTNERS WITH THE FEDERAL COURTS IN THE
ENFORCEMENT OF FEDERAL LAW, THUS OFTEN ELIMINATING THE NEED FOR FEDERAL
COURT ACTION, AND AVOIDING UNNECESSARY FRICTION BETWEEN STATE AND
FEDERAL COURTS.  THESE SAME CONSIDERATIONS INHERE IN THE CONTEXT OF
COLLATERAL ATTACK IN FEDERAL COURT UPON THE JUDGMENTS OF MILITARY
TRIBUNALS, WHICH CONSTITUTE A JUDICIAL SYSTEM--A SYSTEM WITH ITS OWN
PECULIAR PURPOSES AND LEGAL TRADITIONS--DISTINCT FROM THE FEDERAL
JUDICIAL SYSTEM MUCH LIKE THE INDEPENDENT STATE JUDICIAL SYSTEMS. 
ACCORDINGLY, THIS COURT NORMALLY HAS REQUIRED THAT MILITARY PETITIONERS
EXHAUST ALL AVAILABLE REMEDIES WITHIN THE MILITARY JUSTICE SYSTEM.  SEE
NOYD V. BOND, 395 U. S. 683, 693 (1969); GUSIK V. SCHILDER, 340 U. S.
128, 131 - 132 (1950).  /17/  AT THE TIME PETITIONER GOSA INITIATED
THIS COLLATERAL ATTACK HE INDEED HAD NOT EXHAUSTED A MILITARY REMEDY
WHICH WAS FORMERLY AVAILABLE TO HIM WITH RESPECT TO THE CLAIM HE NOW
ASSERTS.  BUT THAT CERTAINLY OUGHT NOT TO BE THE END OF THE INQUIRY. 

IN FAY V. NOIA, 372 U. S. 391 (1963), THE COURT REJECTED THE
POSITION THAT A STATE PRISONER WHO HAD NOT PURSUED HIS STATE APPELLATE
REMEDIES WAS BARRED FROM SEEKING FEDERAL HABEAS CORPUS BECAUSE OF HIS
FAILURE TO EXHAUST, WHERE THE STATE APPELLATE REMEDIES WERE NO LONGER
AVAILABLE.  THE COURT CONCLUDED, INSTEAD, THAT THE EXHAUSTION
"REQUIREMENT REFERS ONLY TO A FAILURE TO EXHAUST STATE REMEDIES STILL
OPEN TO THE APPLICANT AT THE TIME HE FILES HIS APPLICATION FOR HABEAS
CORPUS IN THE FEDERAL COURT."  ID., AT 399.  THE COURT ESTABLISHED THAT
WHERE THERE HAS BEEN A FAILURE TO RESORT TO A STATE COURT REMEDY AND
THAT REMEDY IS NO LONGER AVAILABLE, THE AVAILABILITY OF FEDERAL HABEAS
CORPUS WOULD TURN ON WHETHER THERE WAS A DELIBERATE BYPASS OF THE STATE
PROCESS.  ID., AT 438.  IN DETERMINING WHETHER SUCH A BYPASS HAS
OCCURRED, THE COURT SAID THAT "(THE CLASSIC DEFINITION OF WAIVER
ENUNCIATED IN JOHNSON V. ZERBST, 304 U. S. 458, 464--'AN INTENTIONAL
RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE'--FURNISHES
THE CONTROLLING STANDARD."  372 U. S., AT 439. 

THIS COURT HAS NEVER CONSIDERED THE APPLICABILITY OF THE
NONDELIBERATE-BYPASS RULE IN THE CONTEXT OF MILITARY PETITIONERS.  FAY
DOES NOT SPEAK SPECIFICALLY WITH RESPECT TO SUCH PETITIONERS. 
NONETHELESS, THE CONSIDERATIONS WHICH ARGUE IN FAVOR OF TEMPERING THE
EXHAUSTION REQUIREMENT WITH A RULE OF NONDELIBERATE BYPASS IN THE
CONTEXT OF STATE PETITIONERS ARE EQUALLY APPLICABLE IN THE CONTEXT OF
MILITARY PETITIONERS.  CERTAINLY, MILITARY PETITIONERS SHOULD BE
ENCOURAGED TO RAISE THEIR CONSTITUTIONAL CLAIMS BEFORE AVAILABLE
MILITARY TRIBUNALS IN ORDER TO ENSURE THE ORDERLY FUNCTIONING OF THE
SYSTEM OF MILITARY JUSTICE, TO AVOID NEEDLESS FEDERAL COURT ACTION, AND
TO ALLOW MILITARY TRIBUNALS AN INITIAL OPPORTUNITY TO CORRECT THEIR OWN
ERRORS.  THESE INTERESTS ARE NOT SUBVERTED, HOWEVER, BY ALLOWING A
MILITARY PETITIONER TO SEEK FEDERAL HABEAS CORPUS ON THE BASIS OF A
CLAIM WHICH HE FAILED TO RAISE BEFORE THE MILITARY COURTS BECAUSE HE
EITHER WAS UNAWARE OF OR DID NOT OTHERWISE WILLINGLY FAIL TO RAISE THAT
CLAIM.  AS WITH STATE PETITIONERS, THE INTEGRITY OF THE EXHAUSTION
REQUIREMENT IS ADEQUATELY PROTECTED BY A RULE PROHIBITING A DELIBERATE
BYPASS OF AN AVAILABLE MILITARY TRIBUNAL.  A MORE STRINGENT RULE WOULD
SERVE ONLY TO BAR PRESENTATION OF VALID FEDERAL CLAIMS WITHOUT ANY
COUNTERVAILING JUSTIFICATION FOR DOING SO. 

ON THE FACTS OF THIS CASE, I FIND IT IMPOSSIBLE TO CONCLUDE THAT
PETITIONER GOSA HAS WAIVED HIS RIGHT TO CHALLENGE THE "JURISDICTION" OF
THE COURT-MARTIAL WHICH CONVICTED HIM OF RAPE ON THE GROUND THAT THE
OFFENSE WAS NOT SERVICE CONNECTED.  A VALID WAIVER REQUIRES THE
"INTENTIONAL RELINQUISHMENT . . . OF A KNOWN RIGHT."  /18/  AT THE TIME
OF PETITIONER'S 1967 APPLICATION FOR REVIEW BY THE COURT OF MILITARY
APPEALS THE SUBSTANTIAL "JURISDICTIONAL" ISSUE THAT HE NOW RAISES HAD
YET TO BE ADDRESSED BY THIS COURT.  WHILE O'CALLAHAN IS, TO BE SURE,
PROPERLY VIEWED AS ONE FURTHER STEP IN THE ONGOING PROCESS OF
ESTABLISHING THE LIMITS OF COURT-MARTIAL JURISDICTION, SEE SUPRA, AT
705 - 706, I DO NOT THINK IT FOLLOWS THAT WE SHOULD IMPOSE A RULE OF
WAIVER SO STRICT THAT IT REQUIRES AN INDIVIDUAL PETITIONER TO
ANTICIPATE, AT THE TIME HE APPEALS, A PARTICULAR CONSTITUTIONAL RULING
OF THIS COURT THAT HAS YET TO BE RENDERED, ESPECIALLY NOT WHEN THE
PROTECTION OF A NUMBER OF GUARANTEES OF THE BILL OF RIGHTS IS AT
STAKE.  MOREOVER, WHERE A NEW CONSTITUTIONAL RULE HAS BEEN ESTABLISHED
FOLLOWING COMPLETION OF REGULAR PROCEEDINGS IN THE MILITARY COURTS, THE
INTERESTS SERVED BY THE EXHAUSTION REQUIREMENT CAN BE FULLY SATISFIED
BY REQUIRING THAT THE SUBSEQUENTLY IDENTIFIED CLAIM FIRST BE PRESENTED
TO THE MILITARY COURTS IF A MEANS, SUCH AS POST-CONVICTION RELIEF, /19/
EXISTS FOR DOING SO.  CF. BLAIR V. CALIFORNIA, 340 F. 2D 741 (CA9
1965); PENNSYLVANIA EX REL. RAYMOND V. RUNDLE, 339 F. 2D 598 (CA3
1964).  YET IF IT IS CLEAR THAT THOSE COURTS WOULD REJECT THE CLAIM,
SUCH POST-CONVICTION RESORT TO THE MILITARY COURTS WOULD, OF COURSE, BE
FUTILE AND IS THEREFORE UNNECESSARY, SEE GUSIK V. SCHILDER, 340 U.S.,
AT 132-133.  THIS IS NOW THE CASE HERE, FOR DURING THE PENDENCY OF THIS
ACTION THE COURT OF MILITARY APPEALS, IN MERCER V. DILLON, 19
U.S.C.M.A. 264, 41 C.M.R. 264 (1970), HELD THAT THE "JURISDICTIONAL"
PRINCIPLE ANNOUNCED IN O'CALLAHAN DID NOT APPLY TO CASES DECIDED BEFORE
THE DATE OF THE O'CALLAHAN DECISION.  IT THEREFORE BECAME CLEAR THAT IT
WOULD BE POINTLESS TO DISMISS PETITIONER GOSA'S APPLICATION IN ORDER TO
ALLOW HIM TO PRESENT HIS CLAIM TO THE MILITARY COURTS, /20/  AND
CONSEQUENTLY, HIS CHALLENGE TO THE "JURISDICTION" OF THE COURT-MARTIAL
THAT TRIED HIM IS NOW PROPERLY BEFORE THIS COURT. 

SINCE I THEN CANNOT AGREE WITH THE OPINION OF EITHER THE PLURALITY
OR MR. JUSTICE DOUGLAS, I DISSENT.     /1/  SEE GENERALLY RESTATEMENT
OF JUDGMENTS ^ 7, COMMENT AT 41 - 46 (1942). 

/2/  SEE 395 U. S., AT 265, 267, 269, 272. 

/3/  IN RELFORD V. COMMANDANT, 401 U. S. 355, 356 (1971), MR.
JUSTICE BLACKMUN, SPEAKING FOR THE COURT, DESCRIBED THE O'CALLAHAN
DECISION AS FOLLOWS: 

"IN O'CALLAHAN . . . , BY A FIVE-TO-THREE VOTE, THE COURT HELD THAT
A COURT-MARTIAL MAY NOT TRY A MEMBER OF OUR ARMED FORCES CHARGED WITH
ATTEMPTED RAPE OF A CIVILIAN, WITH HOUSEBREAKING, AND WITH ASSAULT WITH
INTENT TO RAPE, WHEN THE ALLEGED OFFENSES WERE COMMITTED OFF-POST ON
AMERICAN TERRITORY, WHEN THE SOLDIER WAS ON LEAVE, AND WHEN THE CHARGES
COULD HAVE BEEN PROSECUTED IN A CIVILIAN COURT." 

/4/  A SERVICEMAN CONVICTED BY A COURT-MARTIAL DOES, OF COURSE,
ULTIMATELY HAVE ACCESS TO THE FEDERAL JUDICIAL SYSTEM BY WAY OF A
PETITION FOR FEDERAL HABEAS CORPUS.  SEE, E. G., BURNS V. WILSON, 346
U. S. 137 (1953); GUSIK V. SCHILDER, 340 U. S. 128 (1950). 

/5/  INDEED, EVEN IF THE MILITARY VOLUNTARILY ELECTED TO PROVIDE
SERVICEMEN ON TRIAL BEFORE COURTS-MARTIAL WITH THE FULL PANOPLY OF
PROCEDURAL RIGHTS CONSTITUTIONALLY REQUIRED IN CIVIL FORUMS, THAT WOULD
NOT AFFECT THE DECISION IN O'CALLAHAN.  IMPLICIT IN O'CALLAHAN IS THE
FACT THAT THE MILITARY SYSTEM OF JUSTICE HAS NEVER BEEN UNDERSTOOD TO
BE CONSTITUTIONALLY COMPELLED TO PROVIDE MANY OF THE PROCEDURAL RIGHTS
AFFORDED BY THE CIVIL COURTS, AND THUS IT WOULD ALWAYS REMAIN FREE TO
PROVIDE ONLY THAT WHICH IS CONSTITUTIONALLY NECESSARY.  IT WAS WITH AN
UNDERSTANDING OF WHAT IS CONSTITUTIONALLY REQUIRED, NOT OF WHAT THE
MILITARY MIGHT ELECT TO PROVIDE, THAT THE SCOPE OF CONGRESS' POWER
UNDER ART. I, ^ 8, CL. 14, HAD TO BE, AND WAS, DEFINED IN O'CALLAHAN,
SEE 395 U. S., AT 261 - 262.  IT IS THIS FACT THAT PERHAPS BEST
DEMONSTRATES THE TRUE JURISDICTIONAL--AS OPPOSED TO PROCEDURAL--NATURE
OF THAT DECISION. 

/6/  SEE ALSO DEVELOPMENTS IN THE LAW-FEDERAL HABEAS CORPUS, 83
HARV. L. REV. 1038, 1209 (1970).  THE COURT MOVED BEYOND THE
JURISDICTIONAL LIMITATION ON COLLATERAL ATTACKS UPON COURT-MARTIAL
CONVICTIONS IN BURNS V. WILSON, 346 U. S. 137 (1953).  SEE DEVELOPMENTS
IN THE LAW--FEDERAL HABEAS CORPUS, SUPRA, AT 1215 - 1216. 

/7/  CF. RESTATEMENT OF JUDGMENTS SEC. 7, COMMENT B, PP. 42-43
(1942): "THERE ARE MANY SITUATIONS IN WHICH A COURT LACKS COMPETENCY TO
RENDER A JUDGMENT.  THUS, ALTHOUGH A STATE HAS JURISDICTION TO GRANT A
DIVORCE OF PARTIES DOMICILED WITHIN THE STATE, A DECREE OF DIVORCE
RENDERED BY A COURT WHICH IS NOT EMPOWERED TO ENTERTAIN SUITS FOR
DIVORCE IS VOID.  SIMILARLY, A JUDGMENT RENDERED BY A JUSTICE OF THE
PEACE IS VOID IF UNDER THE LAW OF THE STATE SUCH JUSTICES ARE NOT
EMPOWERED TO DEAL WITH THE SUBJECT MATTER OF THE ACTION; AS, FOR
EXAMPLE, WHERE THE ACTION IS ONE FOR TORT AND JUSTICES OF THE PEACE ARE
GIVEN NO POWER EXCEPT IN ACTIONS OF CONTRACT.  SO ALSO, WHERE A COURT
IS GIVEN POWER TO DEAL WITH ACTIONS INVOLVING NO MORE THAN A DESIGNATED
AMOUNT, THE STATUTE LIMITING THE AMOUNT IS ORDINARILY CONSTRUED NOT
MERELY TO MAKE ERRONEOUS A JUDGMENT RENDERED BY SUCH A COURT IN EXCESS
OF ITS POWER, BUT TO MAKE SUCH JUDGMENT VOID." 

/8/  IN ROBINSON ITSELF, THE COURT CONCLUDED THAT, IN ALL EVENTS,
THERE WAS NO SUBSTANTIAL ELEMENT OF RELIANCE SINCE "WALLER CANNOT BE
SAID TO HAVE MARKED A DEPARTURE FROM PAST DECISIONS OF THIS COURT." 
409 U. S., AT 510. 

/9/  KINSELLA V. SINGLETON, 361 U. S. 234 (1960), REID V. COVERT,
354 U. S. 1 (1957), AND EX PARTE MILLIGAN, 4 WALL.  2 (1866), DEALT
WITH THE EXERCISE OF MILITARY JURISDICTION TO TRY CIVILIANS, NOT
SERVICEMEN.  IN EACH CASE, THE COURT HELD THAT THE MILITARY LACKED
JURISDICTION TO TRY THE CIVILIANS. 

IN GRAFTON V. UNITED STATES, 206 U. S. 333 (1907), THE COURT HELD
THAT A SOLDIER WHO HAD BEEN ACQUITTED BY A PROPERLY CONVENED COURT
MARTIAL OF A CHARGE OF HOMICIDE GROWING OUT OF THE SHOOTING OF A
CIVILIAN WHILE HE WAS ON GUARD DUTY IN THE PHILLIPINE ISLANDS COULD NOT
THEREAFTER BE TRIED AND CONVICTED FOR THE SAME OFFENSE BY A CIVILIAN
COURT OF THAT TERRITORY.  JOHNSON V. SAYRE, 158 U. S. 109 (1895),
INVOLVED THE COURT-MARTIAL CONVICTION OF A NAVY PAYMASTER, WHOM THE
COURT FOUND TO BE IN THE NAVAL SERVICE OF THE UNITED STATES, FOR
EMBEZZLING NAVAL FUNDS WHILE SERVING ON A RECEIVING SHIP OF THE UNITED
STATES NAVY.  AND IN SMITH V. WHITNEY, 116 U. S. 167 (1886), THE COURT
WAS ASKED TO ORDER THAT A WRIT OF PROHIBITION BE ISSUED AGAINST A COURT
MARTIAL CONVENED TO TRY A NAVAL PAY INSPECTOR ESSENTIALLY FOR MAKING
VARIOUS CONTRACTS NOT IN THE BEST INTEREST OF THE NAVY, FOR FAILING
PROPERLY TO ENFORCE CONTRACTUAL AGREEMENTS WITH THE NAVY, FOR
COMPELLING PAYMENT OF ILLEGAL CONTRACTUAL CLAIMS AGAINST THE NAVY, AND
FOR FAILING TO PERFORM HIS DUTIES AND RESPONSIBILITIES.  THERE CAN BE
LITTLE QUESTION THAT EACH OF THE OFFENSES IN GRAFTON, JOHNSON, AND
SMITH, WAS "SERVICE CONNECTED" WITHIN THE MEANING OF O'CALLAHAN. 
CONTRAST RELFORD V. COMMANDANT, 401 U.S., AT 365. 

FINALLY, COLEMAN V. TENNESSEE, 97 U. S. 509 (1879), INVOLVED THE
COURT-MARTIAL CONVICTION OF A SOLDIER FOR THE MURDER OF A CIVILIAN
WOMAN.  THE PARTICULAR CIRCUMSTANCES OF THE MURDER ARE NOT APPARENT
FROM THE COURT'S OPINION, BUT IT IS CLEAR THAT THE CRIME OCCURRED
DURING THE CIVIL WAR, THAT IS, DURING WARTIME, RATHER THAN DURING
PEACETIME, SEE ID., AT 516 - 517.  O'CALLAHAN DID NOT CLEARLY SPEAK
WITH RESPECT TO CONSTITUTIONAL LIMITS OF COURT-MARTIAL JURISDICTION
DURING WARTIME SINCE THE OFFENSE AT ISSUE THERE HAD OCCURRED IN
PEACETIME, AND THE PLURALITY DOES NOT REACH THE ISSUE OF WARTIME
OFFENSES TODAY, ALTHOUGH IT ARGUABLY IS PRESENTED IN NO. 71 - 1398, SEE
ANTE, AT 685 N. 8. 

/10/  WITH REGARD TO THE QUESTION OF OFFICIAL RELIANCE, IT HAS BEEN
POINTED OUT THAT AS LONG AGO AS 1955 THE DEPARTMENTS OF JUSTICE AND
DEFENSE REACHED AN AGREEMENT THAT AT LEAST FEDERAL OFFENSES COMMITTED
BY SERVICEMEN OFF-POST WOULD FALL WITHIN THE JURISDICTION OF THE
JUSTICE DEPARTMENT WHILE THOSE COMMITTED ON-POST WOULD BE WITHIN THE
JURISDICTION OF THE DEFENSE DEPARTMENT: 

"THE DEPARTMENTS OF JUSTICE AND DEFENSE HAVE FOUND IT DESIRABLE TO
ESTABLISH GROUND RULES FOR DETERMINING THE FORUM FOR TRYING A
SERVICEMAN CHARGED WITH A CIVIL OFFENSE IN VIOLATION OF BOTH MILITARY
AND FEDERAL LAW.  IN GENERAL, THESE RULES, WHICH WERE ESTABLISHED BY
AGREEMENT BETWEEN THE DEPARTMENTS IN 1955, GIVE TO THE MILITARY
DEPARTMENT CONCERNED THE RESPONSIBILITY OF INVESTIGATING AND
PROSECUTING OFFENSES COMMITTED BY PERSONS SUBJECT TO THE UNIFORM CODE
OF MILITARY JUSTICE AND INVOLVING AS VICTIMS ONLY THOSE PERSONS OR
THEIR CIVILIAN DEPENDENTS RESIDING ON THE MILITARY INSTALLATION IN
QUESTION."  DUKE & VOGEL, THE CONSTITUTION AND THE STANDING ARMY:
ANOTHER PROBLEM OF COURT-MARTIAL JURISDICTION, 13 VAND.  L. REV. 435,
455 (1960), CITING ARMY REG. 22 - 160, OCT. 7, 1955, IMPLEMENTING
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND
DEFENSE RELATING TO THE PROSECUTION OF CRIMES OVER WHICH THE TWO
DEPARTMENTS HAVE CONCURRENT JURISDICTION (JULY 19, 1955). 

/11/ SINCE THE PLURALITY OPINION DOES NOT FINE IT NECESSARY TO REACH
THE SECRETARY'S ADDITIONAL ARGUMENT IN NO. 71 - 1398 THAT THE AUTO
THEFT THERE AT ISSUE WAS SERVICE CONNECTED BECAUSE THE OFFENSE TOOK
PLACE WHILE RESPONDENT WAS ABSENT WITHOUT LEAVE DURING WARTIME, I THINK
IT INAPPROPRIATE FOR ME TO EXPRESS ANY VIEW ON THAT ADDITIONAL ARGUMENT
AT THIS TIME. 

/12/  SEE ALSO RESTATEMENT OF JUDGMENTS ^ 7, COMMENT D, P. 45
(1942). 

/13/  CONTRAST N. 15, INFRA. 

/14/  MR. JUSTICE DOUGLAS WOULD SEEM INCLINED TO LIMIT UNWAIVABLE
JURISDICTIONAL FLAWS TO INSTANCES IN WHICH AN ACCUSED IS "TRIED BY A
KANGAROO COURT OR BY EAGER VIGILANTES . . . ," ANTE, AT 689 - 690.  BUT
THE PRESENCE OR ABSENCE OF ADJUDICATORY POWER DOES NOT TURN ONLY ON THE
FAIRNESS OF THE PROCEEDING AFFORDED BY A PARTICULAR FORUM; RATHER, AS
MC CLAUGHRY ADEQUATELY ILLUSTRATES, JURISDICTIONAL COMPETENCY IN THE
CONTEXT OF COURTS OF LIMITED JURISDICTION SUCH AS COURTS-MARTIAL
NECESSARILY INVOLVES THE LIMITS OF THE STATUTORY AND CONSTITUTIONAL
AUTHORITY THAT PROVIDES THE LEGAL UNDERPINNINGS FOR SUCH TRIBUNALS. 
SEE ALSO HIATT V. BROWN, 339 U. S. 103, 111 (1950); AND N. 7, SUPRA. 

/15/  FOR THIS REASON, I BELIEVE THAT MR. JUSTICE DOUGLAS' RELIANCE
ON CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER STATE BANK, 308 U. S. 371
(1940), IS CLEARLY MISPLACED INSOFAR AS PETITIONER GOSA'S CASE IS
CONCERNED.  CHICOT COUNTY INVOLVED A QUESTION CONCERNING THE EXTENT OF
INDEBTEDNESS ON CERTAIN MUNICIPAL BONDS WHICH HAD PREVIOUSLY BEEN THE
SUBJECT OF A FEDERAL PROCEEDING TO READJUST INDEBTEDNESS UNDER THE
BANKRUPTCY LAWS.  FOLLOWING THE READJUSTMENT PROCEEDING, THIS COURT
DECLARED UNCONSTITUTIONAL THE STATUTE UNDER WHICH THE PROCEEDING, THIS
COURT DECLARED UNCONSTITUTIONAL THE STATUTE UNDER WHICH THE PROCEEDING
HAD BEEN BROUGHT, SEE ASHTON V. CAMERON COUNTY DISTRICT, 298 U. S. 513
(1936).  IN CHICOT COUNTY, THIS COURT THEN HELD THAT THE ORIGINAL
DECREE WAS NOT OPEN TO COLLATERAL ATTACK AS VOID BY THE NONCONSENTING
BONDHOLDERS WHO HAD HAD NOTICE OF THE ORIGINAL READJUSTMENT PROCEEDING
BUT HAD THERE LODGED NO OBJECTION TO THE COURT'S JURISDICTION. 

THE DECISION CAN BE SEEN AS RESTING SIMPLY ON THE DOCTRINE OF RES
JUDICATA TO WHICH THE COURT REFERRED AT POINTS IN ITS OPINION, SEE
CHICOT COUNTY, SUPRA, AT 374 - 375.  THE PLAINTIFFS IN THE SECOND
ACTION HAD HAD A FULL AND FAIR OPPORTUNITY TO LITIGATE THE ISSUE OF
JURISDICTION IN THE FIRST PROCEEDING, BUT HAD FAILED TO DO SO.  AT THE
SAME TIME, THERE HAD BEEN SUBSTANTIAL ACTION TAKEN IN RELIANCE ON THE
READJUSTMENT PLAN APPROVED IN THE FIRST PROCEEDING.  NEW BONDS HAD BEEN
SOLD TO THE RECONSTRUCTION FINANCE CORPORATION WHICH HAD THEN PURCHASED
OLD BONDS IN EXCHANGE FOR THEM.  UNDER THESE CIRCUMSTANCES IT WAS BOTH
FAIR AND PROPER TO BAR LITIGATION OF THE JURISDICTION ISSUE IN THE
COLLATERAL PROCEEDING.  CF. RESTATEMENT OF JUDGMENTS ' 10 AND COMMENT
(1942). 

BUT, AS HAS BEEN POINTED OUT, THE DOCTRINE OF RES JUDICATA HAS NO
PLACE IN FEDERAL HABEAS CORPUS; RIGID RULES RESTRICTING WHAT QUESTIONS
ARE OPEN TO LITIGATION ON COLLATERAL ATTACK ARE INAPPROPRIATE IN THE
CONTEXT OF JUDGMENTS AFFECTING PERSONAL LIBERTY.  THERE ARE, OF COURSE,
LEGITIMATE CONCERNS WITH FINALITY IN CRIMINAL PROCEEDINGS--BOTH CIVIL
AND MILITARY--AND WITH THE ORDERLY FUNCTIONING OF INDEPENDENT JUDICIAL
SYSTEMS.  BUT WE HAVE RULES CONCERNING EXHAUSTION, WAIVER, AND
NONREPETITIOUS APPLICATION TO PROTECT THOSE CONCERNS IN THE CONTEXT OF
FEDERAL HABEAS CORPUS. 

MORE GENERALLY, CHICOT COUNTY IS PROBABLY MOST APPROPRIATELY
INTERPRETED AS AN EARLY DECISION CONCERNING THE NONRETROACTIVE
APPLICATION OF A PARTICULAR DECISION, NAMELY, ASHTON.  DESPITE THE
COURT'S RESORT AT PLACES TO THE RUBRIC OF RES JUDICATA, THE PRESENCE OF
SUBSTANTIAL RELIANCE ON PRE-EXISTING LAW CLEARLY WAS AN IMPORTANT
CONSIDERATION IN THE COURT'S DECISION NOT TO ALLOW THE INTERVENING
DECISION IN ASHTON TO BE USED TO COLLATERALLY ATTACK THE ORIGINAL PLAN
OF READJUSTMENT.  FURTHERMORE, CHICOT COUNTY WAS HEAVILY RELIED UPON BY
THIS COURT WHEN IT GAVE THE PRINCIPLES GOVERNING THE RETROACTIVITY OF
NEW PROCEDURAL CONSTITUTIONAL RULES FULL EXPRESSION IN LINKLETTER V.
WALKER, 381 U. S. 618, 625 - 626 (1965); AND THE CASE HAS BEEN CITED AS
A RETROACTIVITY DECISION ON A NUMBER OF OCCASIONS SINCE LINKLETTER, SEE
CHEVRON OIL CO. V. HUSON, 404 U. S. 97, 106 (1971); UNITED STATES V. U.
S. COIN & CURRENCY, 401 U. S. 715, 742 - 743 (1971) (WHITE, J.,
DISSENTING); CF. UNITED STATES V. ESTATE OF DONNELLY, 397 U. S. 286,
293 - 294 (1970); ID., AT 299 - 300 (DOUGLAS, J., DISSENTING).  VIEWED
THEN AS A PRECURSOR OF THE PRESENT DAY RETROACTIVITY DOCTRINE, CHICOT
COUNTY HAS NO RELEVANCE FOR THE THRESHOLD QUESTION WHETHER GOSA IS
BARRED FROM RAISING HIS JURISDICTIONAL CHALLENGE ON HABEAS CORPUS
BECAUSE HE FAILED TO PRESENT IT IN APPLYING FOR LEAVE TO APPEAL TO THE
COURT OF MILITARY APPEALS. 

/16/  THIS RULE DOES NOT, HOWEVER, ENTITLE THE STATE COURTS TO MORE
THAN ONE OPPORTUNITY TO CONSIDER THE SAME CLAIM.  THUS, IN BROWN V.
ALLEN, 344 U. S. 443, 447 (1953), WHERE THE PETITIONERS HAD PRESENTED
THEIR FEDERAL CLAIMS TO THE STATE COURTS ON DIRECT REVIEW, THE COURT
SAID, "IT IS NOT NECESSARY IN SUCH CIRCUMSTANCES FOR THE PRISONER TO
ASK THE STATE FOR COLLATERAL RELIEF, BASED ON THE SAME EVIDENCE AND
ISSUES ALREADY DECIDED BY DIRECT REVIEW . . . ."  INDEED, IF THE
EXHAUSTION REQUIREMENT WERE NOT RESTRICTED TO PROVIDING ALL LEVELS OF
THE STATE COURTS WITH AN OPPORTUNITY TO HEAR HIS FEDERAL CLAIM, IT
WOULD EFFECTIVELY BAR STATE PRISONERS FROM EVER REACHING A FEDERAL
FORUM IN STATES IN WHICH AN UNLIMITED NUMBER OF IDENTICAL APPLICATIONS
FOR STATE POST-CONVICTION RELIEF ARE PERMITTED.  THE EXHAUSTION
REQUIREMENT DOES NOT DEMAND SUCH "REPETITIOUS APPLICATIONS TO STATE
COURTS."  ID., AT 448 - 449, N. 3. 

/17/  BUT SEE MC ELROY V. GUAGLIARDO, 361 U. S. 281 (1960); REID V.
COVERT, 354 U. S. 1 (1957); TOTH V. QUARLES, 350 U. S. 11 (1955); NOYD
V. BOND, 395 U. S. 683, 696 N. 8 (1969). 

/18/  NOTHING IN THIS COURT'S RECENT DECISIONS IN TOLLETT V.
HENDERSON, 411 U. S. 258 (1973), AND DAVIS V. UNITED STATES, 411 U. S.
233 (1973), SUGGESTS THAT A DIFFERENT STANDARD SHOULD BE APPLIED IN THE
CONTEXT OF THIS CASE.  TOLLETT INVOLVED A COLLATERAL ATTACK UPON THE
VALIDITY OF A GUILTY PLEA IN LIGHT OF RACIAL DISCRIMINATION IN THE
COMPOSITION OF THE STATE GRAND JURY THAT HAD INDICTED HENDERSON, AN
OBJECTION THAT HAD NOT BEEN RAISED AT THE TIME OF THE ENTRANCE OF THE
PLEA.  BECAUSE IT WAS CLEAR THAT NEITHER HENDERSON NOR HIS COUNSEL WAS
AWARE OF THE CLAIM OF DISCRIMINATION AT THE TIME OF THE PLEA, THE COURT
AGREED THAT THERE HAD BEEN NO VALID WAIVER OF THE CLAIM IN TRADITIONAL
TERMS, SEE 411 U. S., AT 266, BUT THE COURT DID NOT CONSIDER THAT
DETERMINATION DISPOSITIVE IN THE PECULIAR CONTEXT OF A COLLATERAL
ATTACK UPON A GUILTY PLEA.  RATHER, THE COURT RULED THAT "(THE FOCUS OF
FEDERAL HABEAS INQUIRY IS THE NATURE OF THE ADVICE AND THE
VOLUNTARINESS OF THE PLEA, NOT THE EXISTENCE AS SUCH OF AN ANTECEDENT
CONSTITUTIONAL INFIRMITY," IBID.  WE, OF COURSE, DO NOT DEAL HERE WITH
THE SPECIAL PROBLEM OF A COLLATERAL ATTACK UPON A GUILTY PLEA.     IN
DAVIS, THE COURT HELD THAT, FOR PURPOSES OF COLLATERAL ATTACK, A
PETITIONER HAD WAIVED HIS OBJECTION TO THE COMPOSITION OF THE GRAND
JURY THAT TRIED HIM BECAUSE HE HAD FAILED TO RAISE THE OBJECTION BEFORE
TRIAL AS FED. RULE CRIM. PROC. 12 (B)(2) EXPRESSLY REQUIRES.  RULE 12
(B)(2) SPECIFIES THAT "(DEFENSES AND OBJECTIONS BASED ON DEFECTS IN THE
INSTITUTION OF THE PROSECUTION OR IN THE INDICTMENT . . . MAY BE RAISED
ONLY BY MOTION BEFORE TRIAL" AND THAT FAILURE TO DO SO "CONSTITUTES A
WAIVER THEREOF."  CONFRONTED WITH A SITUATION IN WHICH A SPECIFIC RULE
PROVIDED "FOR THE WAIVER OF A PARTICULAR KIND OF CONSTITUTIONAL CLAIM
IF IT BE NOT TIMELY ASSERTED,"  411 U. S., AT 239 - 240, THE COURT
CONCLUDED THAT PRESERVATION OF THE INTEGRITY OF THE RULE DEMANDED THAT
ITS STANDARD SHOULD GOVERN IN THE CONTEXT OF A COLLATERAL ATTACK UPON
AN INDICTMENT.  THIS CASE, HOWEVER, INVOLVES NO SUCH "EXPRESS WAIVER
PROVISION," ID., AT 239, AND CONSEQUENTLY THE GENERAL WAIVER PRINCIPLES
ESTABLISHED BY THIS COURT'S PREVIOUS DECISIONS MUST CONTROL. 

/19/  SEE DEVELOPMENTS IN THE LAW--FEDERAL HABEAS CORPUS, 83 HARV.
L. REV. 1038, 1234 (1970); CF. NOYD V. BOND; 395 U.S., AT 695 N. 7. 

/20/ IN ANY CASE, WHILE HIS APPLICATION FOR HABEAS CORPUS WAS
PENDING IN THE DISTRICT COURT, PETITIONER GOSA FILED A MOTION TO VACATE
HIS CONVICTION AND SENTENCE, ON THE BASIS OF O'CALLAHAN, IN THE COURT
OF MILITARY APPEALS.  SUBSEQUENT TO THE DENIAL OF RELIEF IN THE
DISTRICT COURT, THE COURT OF MILITARY APPEALS, TREATING PETITIONER'S
MOTION AS A PETITION FOR RECONSIDERATION, ALSO DENIED RELIEF.  IT DID
SO, NOT ON THE BASIS THAT GOSA HAD WAIVED THE "JURISDICTIONAL" QUESTION
BY FAILING TO PRESENT IT ON DIRECT APPEAL, BUT ON THE BASIS OF ITS
PREVIOUS DECISION IN MERCER HOLDING O'CALLAHAN TO BE NONRETROACTIVE. 
19 U.S.C. M. A. 327, 41 C. M. R. 327 (1970).  THUS, IN ALL EVENTS, IT
SEEMS CLEAR THAT GOSA HAS NOW ADEQUATELY EXHAUSTED HIS MILITARY
REMEDIES AND HIS PREVIOUS BYPASS CAN NO LONGER BE DEEMED A WAIVER OF
THE "JURISDICTIONAL" QUESTION, SEE WARDEN V. HAYDEN, 387 U. S. 294, 297
N. 3 (1967). 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR PETITIONER IN NO. 71
- 1398 AND FOR RESPONDENT IN NO. 71 - 6314.  WITH HIM ON THE BRIEFS IN
BOTH CASES WERE ASSISTANT ATTORNEY GENERAL PETERSEN, DEPUTY SOLICITOR
GENERAL LACOVARA, WILLIAM BRADFORD REYNOLDS, AND ROGER A. PAULEY.  JOHN
R. SAALFIELD ARGUED THE CAUSE FOR PETITIONER IN NO. 71 - 6314.  ON THE
BRIEF WAS H. FRANKLIN PERRITT, JR. 

MICHAEL MELTSNER, BY APPOINTMENT OF THE COURT, 408 U. S. 919, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT IN NO. 71 - 1398. 

ROWLAND WATTS FILED A BRIEF FOR THE WORKERS DEFENSE LEAGUE AS AMICUS
CURIAE URGING REVERSAL IN NO. 71 - 6314 AND AFFIRMANCE IN NO. 71 -
1398. 
..END :







IN RE GRIFFITHS 413 U.S. 717 


       APPEAL FROM THE SUPREME COURT OF CONNECTICUT 

  NO. 71 - 1336.  ARGUED JANUARY 9, 1973--DECIDED JUNE 25, 1973;

  162 CONN. 249, 294 A.2D 281, REVERSED AND REMANDED. 


    APPLICANT, A RESIDENT ALIEN, WAS DENIED PERMISSION TO TAKE THE

  CONNECTICUT BAR EXAMINATION SOLELY BECAUSE OF A CITIZENSHIP

  REQUIREMENT IMPOSED BY A STATE COURT RULE, WHICH THE STATE COURTS

  UPHELD AGAINST APPLICANT'S CONSTITUTIONAL CHALLENGE.  HELD:

  CONNECTICUT'S EXCLUSION OF ALIENS FROM THE PRACTICE OF LAW

  VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

  AMENDMENT.  CLASSIFICATIONS BASED ON ALIENAGE, BEING INHERENTLY

  SUSPECT, ARE SUBJECT TO CLOSE JUDICIAL SCRUTINY, AND HERE THE

  STATE THROUGH APPELLEE BAR COMMITTEE HAS NOT MET ITS BURDEN OF

  SHOWING THE CLASSIFICATION TO HAVE BEEN NECESSARY TO VINDICATE

THE STATE'S UNDOUBTED INTEREST IN MAINTAINING HIGH PROFESSIONAL

  STANDARDS.  PP. 722 - 729.  POWELL, J., DELIVERED THE OPINION OF

  THE COURT, IN WHICH 

DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, 

JJ., JOINED.  BURGER, C. J., FILED A DISSENTING OPINION, 

IN WHICH REHNQUIST, J., JOINED, POST, P. 730.  REHNQUIST, 

J., FILED A DISSENTING OPINION, ANTE, P. 649. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A NOVEL QUESTION AS TO THE CONSTRAINTS IMPOSED BY
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT ON THE
QUALIFICATIONS WHICH A STATE MAY REQUIRE FOR ADMISSION TO THE BAR. 
APPELLANT, FRE LE POOLE GRIFFITHS, IS A CITIZEN OF THE NETHERLANDS WHO
CAME TO THE UNITED STATES IN 1965, ORIGINALLY AS A VISITOR.  IN 1967
SHE MARRIED A CITIZEN OF THE UNITED STATES AND BECAME A RESIDENT OF
CONNECTICUT.  /1/  AFTER HER GRADUATION FROM LAW SCHOOL, SHE APPLIED IN
1970 FOR PERMISSION TO TAKE THE CONNECTICUT BAR EXAMINATION.  THE
COUNTY BAR ASSOCIATION FOUND HER QUALIFIED IN ALL RESPECTS SAVE THAT
SHE WAS NOT A CITIZEN OF THE UNITED STATES AS REQUIRED BY RULE 8 (1) OF
THE CONNECTICUT PRACTICE BOOK (1963), /2/  AND ON THAT ACCOUNT REFUSED
TO ALLOW HER TO TAKE THE EXAMINATION.  SHE THEN SOUGHT JUDICIAL RELIEF,
ASSERTING THAT THE REGULATION WAS UNCONSTITUTIONAL BUT HER CLAIM WAS
REJECTED, FIRST BY THE SUPERIOR COURT AND ULTIMATELY BY THE CONNECTICUT
SUPREME COURT.  162 CONN. 249, 294 A. 2D 281 (1972).  WE NOTED PROBABLE
JURISDICTION, 406 U. S. 966 (1972), AND NOW HOLD THAT THE RULE
UNCONSTITUTIONALLY DISCRIMINATES AGAINST RESIDENT ALIENS.  /3/

        I 

WE BEGIN BY SKETCHING THE BACKGROUND AGAINST WHICH THE STATE BAR
EXAMINING COMMITTEE ATTEMPTS TO JUSTIFY THE TOTAL EXCLUSION OF ALIENS
FROM THE PRACTICE OF LAW.  FROM ITS INCEPTION, OUR NATION WELCOMED AND
DREW STRENGTH FROM THE IMMIGRATION OF ALIENS.  THEIR CONTRIBUTIONS TO
THE SOCIAL AND ECONOMIC LIFE OF THE COUNTRY WERE SELF-EVIDENT,
ESPECIALLY DURING THE PERIODS WHEN THE DEMAND FOR HUMAN RESOURCES
GREATLY EXCEEDED THE NATIVE SUPPLY.  THIS DEMAND WAS BY NO MEANS
LIMITED TO THE UNSKILLED OR THE UNEDUCATED.  IN 1873, THIS COURT NOTED
THAT ADMISSION TO THE PRACTICE OF LAW IN THE COURTS OF A STATE 

"IN NO SENSE DEPENDS ON CITIZENSHIP OF THE UNITED STATES.  IT HAS
NOT, AS FAR AS WE KNOW, EVER BEEN MADE IN ANY STATE, OR IN ANY CASE, TO
DEPEND ON CITIZENSHIP AT ALL.  CERTAINLY MANY PROMINENT AND
DISTINGUISHED LAWYERS HAVE BEEN ADMITTED TO PRACTICE, BOTH IN THE STATE
AND FEDERAL COURTS, WHO WERE NOT CITIZENS OF THE UNITED STATES OR OF
ANY STATE."  BRADWELL V. STATE, 16 WALL.  130, 139.  /4/ 

BUT SHORTLY THEREAFTER, IN 1879, CONNECTICUT ESTABLISHED THE
PREDECESSOR TO ITS PRESENT RULE TOTALLY EXCLUDING ALIENS FROM THE
PRACTICE OF LAW.  162 CONN., AT 253, 294 A. 2D, AT 283.  IN SUBSEQUENT
DECADES, WIDE-RANGING RESTRICTIONS FOR THE FIRST TIME BEGAN TO IMPAIR
SIGNIFICANTLY THE EFFORTS OF ALIENS TO EARN A LIVELIHOOD IN THEIR
CHOSEN OCCUPATIONS.  /5/ 

IN THE FACE OF THIS TREND, THE COURT NONETHELESS HELD IN 1886 THAT A
LAWFULLY ADMITTED RESIDENT ALIEN IS A "PERSON" WITHIN THE MEANING OF
THE FOURTEENTH AMENDMENT'S DIRECTIVE THAT A STATE MUST NOT "'DENY TO
ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.'" 
YICK WO V. HOPKINS, 118 U. S. 356, 369 (1886).  THE DECISION IN YICK WO
INVALIDATED A MUNICIPAL ORDINANCE REGULATING THE OPERATION OF LAUNDRIES
ON THE GROUND THAT THE ORDINANCE WAS DISCRIMINATORILY ENFORCED AGAINST
CHINESE OPERATORS.  SOME YEARS LATER, THE COURT STRUCK DOWN AN ARIZONA
STATUTE REQUIRING EMPLOYERS OF MORE THAN FIVE PERSONS TO EMPLOY AT
LEAST 80% "QUALIFIED ELECTORS OR NATIVE-BORN CITIZENS OF THE UNITED
STATES OR SOME SUBDIVISION THEREOF."  TRUAX V. RAICH, 239 U. S. 33, 35
(1915).  AS STATED FOR THE COURT BY MR. JUSTICE HUGHES: 

"IT REQUIRES NO ARGUMENT TO SHOW THAT THE RIGHT TO WORK FOR A LIVING
IN THE COMMON OCCUPATIONS OF THE COMMUNITY IS OF THE VERY ESSENCE OF
THE PERSONAL FREEDOM AND OPPORTUNITY THAT IT WAS THE PURPOSE OF THE
(FOURTEENTH) AMENDMENT TO SECURE.  (CITATIONS OMITTED.)  IF THIS COULD
BE REFUSED SOLELY UPON THE GROUND OF RACE OR NATIONALITY, THE
PROHIBITION OF THE DENIAL TO ANY PERSON OF THE EQUAL PROTECTION OF THE
LAWS WOULD BE A BARREN FORM OF WORDS."  ID., AT 41. 

TO BE SURE, THE COURSE OF DECISIONS PROTECTING THE EMPLOYMENT RIGHTS
OF RESIDENT ALIENS HAS NOT BEEN AN UNSWERVING ONE.  /6/  IN CLARKE V.
DECKEBACH, 274 U. S. 392 (1927), THE COURT WAS FACED WITH A CHALLENGE
TO A CITY ORDINANCE PROHIBITING THE ISSUANCE TO ALIENS OF LICENSES TO
OPERATE POOL AND BILLIARD ROOMS.  CHARACTERIZING THE BUSINESS AS ONE
HAVING "HARMFUL AND VICIOUS TENDENCIES," THE COURT FOUND NO
CONSTITUTIONAL INFIRMITY IN THE ORDINANCE: 

"IT WAS COMPETENT FOR THE CITY TO MAKE SUCH A CHOICE, NOT SHOWN TO
BE IRRATIONAL, BY EXCLUDING FROM THE CONDUCT OF A DUBIOUS BUSINESS AN
ENTIRE CLASS RATHER THAN ITS OBJECTIONABLE MEMBERS SELECTED BY MORE
EMPIRICAL METHODS."  ID., AT 397. 

THIS EASILY EXPANDABLE PROPOSITION SUPPORTED DISCRIMINATION AGAINST
RESIDENT ALIENS IN A WIDE RANGE OF OCCUPATIONS.  /7/ 

BUT THE DOCTRINAL FOUNDATIONS OF CLARKE WERE UNDERMINED IN TAKAHASHI
V. FISH & GAME COMM'N, 334 U. S. 410 (1948), WHERE, IN RULING
UNCONSTITUTIONAL A CALIFORNIA STATUTE BARRING ISSUANCE OF FISHING
LICENSES TO PERSONS "'INELIGIBLE TO CITIZENSHIP," THE COURT STATED THAT
"THE POWER OF A STATE TO APPLY ITS LAWS EXCLUSIVELY TO ITS ALIEN
INHABITANTS AS A CLASS IS CONFINED WITHIN NARROW LIMITS."  ID., AT
420.  INDEED, WITH THE ISSUE SQUARELY BEFORE IT IN GRAHAM V.
RICHARDSON, 403 U. S. 365 (1971), THE COURT CONCLUDED THAT: 

"(CLASSIFICATIONS BASED ON ALIENAGE, LIKE THOSE BASED ON NATIONALITY
OR RACE, ARE INHERENTLY SUSPECT AND SUBJECT TO CLOSE JUDICIAL
SCRUTINY.  ALIENS AS A CLASS ARE A PRIME EXAMPLE OF A 'DISCRETE AND
INSULAR' MINORITY (SEE UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.
S. 144, 152 - 153, N. 4 (1938)) FOR WHOM SUCH HEIGHTENED JUDICIAL IS
APPROPRIATE."  ID., AT 372.  (FOOTNOTES OMITTED.) 

THE COURT HAS CONSISTENTLY EMPHASIZED THAT A STATE WHICH ADOPTS A
SUSPECT CLASSIFICATION "BEARS A HEAVY BURDEN OF JUSTIFICATION," MC
LAUGHLIN V. FLORIDA, 379 U. S. 184, 196 (1964), A BURDEN WHICH, THOUGH
VARIOUSLY FORMULATED, REQUIRES THE STATE TO MEET CERTAIN STANDARDS OF
PROOF.  IN ORDER TO JUSTIFY THE USE OF A SUSPECT CLASSIFICATION, A
STATE MUST SHOW THAT ITS PURPOSE OR INTEREST IS BOTH CONSTITUTIONALLY
PERMISSIBLE /8/  AND SUBSTANTIAL, /9/  AND THAT ITS USE OF THE
CLASSIFICATION IS "NECESSARY . . . TO THE ACCOMPLISHMENT" OF ITS
PURPOSE /10/  OR THE SAFEGUARDING OF ITS INTEREST.  /11/ 

RESIDENT ALIENS, LIKE CITIZENS, PAY TAXES, SUPPORT THE ECONOMY,
SERVE IN THE ARMED FORCES, AND CONTRIBUTE IN MYRIAD OTHER WAYS TO OUR
SOCIETY.  IT IS APPROPRIATE THAT A STATE BEAR A HEAVY BURDEN WHEN IT
DEPRIVES THEM OF EMPLOYMENT OPPORTUNITIES. 

        II 

WE HOLD THAT THE COMMITTEE, ACTING ON BEHALF OF THE STATE, HAS NOT
CARRIED ITS BURDEN.  THE STATE'S ULTIMATE INTEREST HERE IMPLICATED IS
TO ASSURE THE REQUISITE QUALIFICATIONS OF PERSONS LICENSED TO PRACTICE
LAW.  /12/  IT IS UNDISPUTED THAT A STATE HAS A CONSTITUTIONALLY
PERMISSIBLE AND SUBSTANTIAL INTEREST IN DETERMINING WHETHER AN
APPLICANT POSSESSES "' THE CHARACTER AND GENERAL FITNESS REQUISITE FOR
AN ATTORNEY AND COUNSELOR-AT-LAW.'"  LAW STUDENTS RESEARCH COUNCIL V.
WADMOND, 401 U. S. 154, 159 (1971).  SEE ALSO KONIGSBERG V. STATE BAR,
366 U. S. 36, 40 - 41 (1961); SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.
S. 232, 239 (1957).  /13/  BUT NO QUESTION IS RAISED IN THIS CASE AS TO
APPELLANT'S CHARACTER OR GENERAL FITNESS.  RATHER, THE SOLE BASIS FOR
DISQUALIFICATION IS HER STATUS AS A RESIDENT ALIEN. 

THE COMMITTEE DEFENDS RULE 8 (1)'S REQUIREMENT THAT APPLICANTS FOR
ADMISSION TO THE BAR BE CITIZENS OF THE UNITED STATES ON THE GROUND
THAT THE SPECIAL ROLE OF THE LAWYER JUSTIFIES EXCLUDING ALIENS FROM THE
PRACTICE OF LAW.  IN CONNECTICUT, THE COMMITTEE POINTS OUT THE MAXIM
THAT A LAWYER IS AN "OFFICER OF THE COURT" IS GIVEN CONCRETE MEANING BY
A STATUTE WHICH MAKES EVERY LAWYER A "COMMISSIONER OF THE SUPERIOR
COURT."  AS SUCH, A LAWYER HAS AUTHORITY TO "SIGN WRITS AND SUBPOENAS,
TAKE RECOGNIZANCES, ADMINISTER OATHS AND TAKE DEPOSITIONS AND
ACKNOWLEDGEMENTS OF DEEDS."  CONN. GEN. STAT. REV. ^ 51 - 85.  IN THE
EXERCISE OF THIS AUTHORITY, A CONNECTICUT LAWYER MAY COMMAND THE
ASSISTANCE OF A COUNTY SHERIFF OR A TOWN CONSTABLE.  CONN. GEN. STAT.
REV. ^ 52 - 90.  BECAUSE OF THESE AND OTHER POWERS, THE CONNECTICUT
SUPREME COURT COMMENTED THAT 

"(THE COURTS NOT ONLY DEMAND (LAWYERS') L ALTY, CONFIDENCE AND
RESPECT BUT ALSO REQUIRE THEM TO FUNCTION IN A MANNER WHICH WILL FOSTER
PUBLIC CONFIDENCE IN THE PROFESSION AND, CONSEQUENTLY, THE JUDICIAL
SYSTEM."  162 CONN., AT 262 - 263, 294 A. 2D, AT 287. 

IN ORDER TO ESTABLISH A LINK BETWEEN CITIZENSHIP AND THE POWERS AND
RESPONSIBILITIES OF THE LAWYER IN CONNECTICUT, THE COMMITTEE CONTRASTS
A CITIZEN'S UNDIVIDED ALLEGIANCE TO THIS COUNTRY WITH A RESIDENT
ALIEN'S POSSIBLE CONFLICT OF LOYALTIES.  FROM THIS, THE COMMITTEE
CONCLUDES THAT A RESIDENT ALIEN LAWYER MIGHT IN THE EXERCISE OF HIS
FUNCTIONS IGNORE HIS RESPONSIBILITIES TO THE COURTS OR EVEN HIS CLIENTS
IN FAVOR OF THE INTEREST OF A FOREIGN POWER. 

WE FIND THESE ARGUMENTS UNCONVINCING.  IT IN NO WAY DENIGRATES A
LAWYER'S HIGH RESPONSIBILITIES TO OBSERVE THAT THE POWERS "TO SIGN
WRITS AND SUBPOENAS, TAKE RECOGNIZANCES, (AND) ADMINISTER OATHS" HARDLY
INVOLVE MATTERS OF STATE POLICY OR ACTS OF SUCH UNIQUE RESPONSIBILITY
AS TO ENTRUST THEM ONLY TO CITIZENS.  NOR DO WE THINK THAT THE PRACTICE
OF LAW OFFERS MEANINGFUL OPPORTUNITIES ADVERSELY TO AFFECT THE INTEREST
OF THE UNITED STATES.  CERTAINLY THE COMMITTEE HAS FAILED TO SHOW THE
RELEVANCE OF CITIZENSHIP TO ANY LIKELIHOOD THAT A LAWYER WILL FAIL TO
PROTECT FAITHFULLY THE INTEREST OF HIS CLIENTS.  /14/ 

NOR WOULD THE POSSIBILITY THAT SOME RESIDENT ALIENS ARE UNSUITED TO
THE PRACTICE OF LAW BE A JUSTIFICATION FOR A WHOLESALE BAN. 

"EVEN IN APPLYING PERMISSIBLE STANDARDS, OFFICERS OF A STATE CANNOT
EXCLUDE AN APPLICANT WHEN THERE IS NO BASIS FOR THEIR FINDING THAT HE
FAILS TO MEET THESE STANDARDS, OR WHEN THEIR ACTION IS INVIDIOUSLY
DISCRIMINATORY.  CF. YICK WO V. HOPKINS, 118 U. S. 356."  SCHWARE V.
BOARD OF BAR EXAMINERS, 353 U. S., AT 239. 

THIS CONSTITUTIONAL WARNING IS ESPECIALLY SALIENT WHERE, AS HERE, A
STATE'S BAR ADMISSION STANDARDS MAKE EXPLICIT USE OF A SUSPECT
CLASSIFICATION.  ALTHOUGH, AS WE HAVE ACKNOWLEDGED, A STATE DOES HAVE A
SUBSTANTIAL INTEREST IN THE QUALIFICATIONS OF THOSE ADMITTED TO THE
PRACTICE OF LAW, THE ARGUMENTS ADVANCED BY THE COMMITTEE FALL SHORT OF
SHOWING THAT THE CLASSIFICATION ESTABLISHED BY RULE 8 (1) OF THE
CONNECTICUT PRACTICE BOOK (1963) IS NECESSARY TO THE PROMOTING OR
SAFEGUARDING OF THIS INTEREST. 

CONNECTICUT HAS WIDE FREEDOM TO GAUGE ON A CASE-BY-CASE BASIS THE
FITNESS OF AN APPLICANT TO PRACTICE LAW.  CONNECTICUT CAN, AND DOES,
REQUIRE APPROPRIATE TRAINING AND FAMILIARITY WITH CONNECTICUT LAW. 
APART FROM SUCH TESTS OF COMPETENCE, IT REQUIRES A NEW LAWYER TO TAKE
BOTH AN "ATTORNEY'S OATH" TO PERFORM HIS FUNCTIONS FAITHFULLY AND
HONESTLY /15/ AND A "COMMISSIONER'S OATH" TO "SUPPORT THE CONSTITUTION
OF THE UNITED STATES, AND THE CONSTITUTION OF THE STATE OF
CONNECTICUT."  /16/  APPELLANT HAS INDICATED HER WILLINGNESS AND
ABILITY TO SUBSCRIBE TO THE SUBSTANCE OF BOTH OATHS, /17/  AND
CONNECTICUT MAY QUITE PROPERLY CONDUCT A CHARACTER INVESTIGATION TO
INSURE IN ANY GIVEN CASE "THAT AN APPLICANT IS NOT ONE WHO 'SWEARS TO
AN OATH PRO FORMA WHILE DECLARING OR MANIFESTING HIS DISAGREEMENT WITH
OR INDIFFERENCE TO THE OATH.'  BOND V. FLOYD, 385 U. S. 116, 132."  LAW
STUDENTS RESEARCH COUNCIL V. WADMOND, 401 U. S., AT 164.  /18/
MOREOVER, ONCE ADMITTED TO THE BAR, LAWYERS ARE SUBJECT TO CONTINUING
SCRUTINY BY THE ORGANIZED BAR AND THE COURTS.  IN ADDITION TO
DISCIPLINE FOR UNPROFESSIONAL CONDUCT, THE RANGE OF POST-ADMISSION
SANCTIONS EXTENDS FROM JUDGMENTS FOR CONTEMPT TO CRIMINAL PROSECUTIONS
AND DISBARMENT.  /19/  IN SUM, THE COMMITTEE SIMPLY HAS NOT ESTABLISHED
THAT IT MUST EXCLUDE ALL ALIENS FROM THE PRACTICE OF LAW IN ORDER TO
VINDICATE ITS UNDOUBTED INTEREST IN HIGH PROFESSIONAL STANDARDS.  /20/

        III 

IN ITS BRIEF, THE EXAMINING COMMITTEE MAKES ANOTHER, SOMEWHAT
DIFFERENT ARGUMENT IN SUPPORT OF RULE 8 (1).  ITS THRUST IS NOT THAT
RESIDENT ALIENS LACK THE ATTRIBUTES NECESSARY TO MAINTAIN HIGH
STANDARDS IN THE LEGAL PROFESSION, BUT RATHER THAT LAWYERS MUST BE
CITIZENS ALMOST AS A MATTER OF DEFINITION.  THE IMPLICATION OF THIS
ANALYSIS IS THAT EXCLUSION OF ALIENS FROM THE LEGAL PROFESSION IS NOT
SUBJECT TO ANY SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE. 

THE ARGUMENT BUILDS UPON THE EXCLUSION OF ALIENS FROM THE FRANCHISE
IN ALL 50 STATES AND THEIR DISQUALIFICATION UNDER THE CONSTITUTION FROM
HOLDING OFFICE AS PRESIDENT, ART. 2, ^ 1, CL. 5, OR AS A MEMBER OF THE
HOUSE OF REPRESENTATIVES, ART. 1, ^ 2, CL. 2, OR OF THE SENATE, ART. 1,
^ 3, CL. 3.  THESE AND NUMEROUS OTHER FEDERAL AND STATUTORY AND
CONSTITUTIONAL PROVISIONS REFLECT, THE COMMITTEE CONTENDS, A PERVASIVE
RECOGNITION THAT "PARTICIPATION IN THE GOVERNMENT STRUCTURE AS VOTERS
AND OFFICE HOLDERS" IS INESCAPABLY AN ASPECT OF CITIZENSHIP.  BRIEF FOR
APPELLEE 11.  OFFERED IN SUPPORT OF THE CLAIM THAT THE LAWYER IS AN
"OFFICE HOLDER" IN THIS SENSE IS AN ENHANCED VERSION OF THE
PROPOSITION, DISCUSSED ABOVE, THAT HE IS AN "OFFICER OF THE COURT." 
SPECIFICALLY, THE COMMITTEE STATES THAT THE LAWYER "IS AN OFFICER OF
THE COURT WHO ACTS BY AND WITH THE AUTHORITY OF THE STATE" AND IS
ENTRUSTED WITH THE "EXERCISE OF ACTUAL GOVERNMENT POWER."  ID., AT 5. 
WE NOTE AT THE OUTSET THAT THIS ARGUMENT GOES BEYOND THE OPINION OF
THE CONNECTICUT SUPREME COURT, WHICH RECOGNIZED THAT A LAWYER IS NOT AN
OFFICER IN THE ORDINARY SENSE.  162 CONN., AT 254, 294 A. 2D, AT 283. 
THIS COMPORTS WITH THE VIEW OF THE COURT EXPRESSED BY MR. JUSTICE BLACK
IN CAMMER V. UNITED STATES, 350 U. S. 399 (1956): 

     "IT HAS BEEN STATED MANY TIMES THAT LAWYERS ARE 'OFFICERS OF

  THE COURT.'  ONE OF THE MOST FREQUENTLY REPEATED STATEMENTS TO

  THIS EFFECT APPEARS IN EX PARTE GARLAND, 4 WALL.  333, 378.  THE

  COURT POINTED OUT THERE, HOWEVER, THAT AN ATTORNEY WAS NOT AN

  'OFFICER' WITHIN THE ORDINARY MEANING OF THAT TERM.  CERTAINLY

NOTHING THAT WAS SAID IN EX PARTE GARLAND OR IN ANY OTHER CASE

  DECIDED BY THIS COURT PLACES ATTORNEYS IN THE SAME CATEGORY AS

  MARSHALS, BAILIFFS, COURT CLERKS OR JUDGES.  UNLIKE THESE

  OFFICIALS A LAWYER IS ENGAGED IN A PRIVATE PROFESSION, IMPORTANT

  THOUGH IT BE TO OUR SYSTEM OF JUSTICE.  IN GENERAL HE MAKES HIS

  OWN DECISIONS, FOLLOWS HIS OWN BEST JUDGMENT, COLLECTS HIS OWN

  FEES AND RUNS HIS OWN BUSINESS.  THE WORD 'OFFICER' AS IT HAS

  ALWAYS BEEN APPLIED TO LAWYERS CONVEYS QUITE A DIFFERENT MEANING

  FROM THE WORD 'OFFICER' AS APPLIED TO PEOPLE SERVING AS OFFICERS

 WITHIN THE CONVENTIONAL MEANING OF THAT TERM."  ID., AT 405

  (FOOTNOTE OMITTED). 

LAWYERS DO INDEED OCCUPY PROFESSIONAL POSITIONS OF RESPONSIBILITY
AND INFLUENCE THAT IMPOSE ON THEM DUTIES CORRELATIVE WITH THEIR VITAL
RIGHT OF ACCESS TO THE COURTS.  MOREOVER, BY VIRTUE OF THEIR
PROFESSIONAL APTITUDES AND NATURAL INTERESTS, LAWYERS HAVE BEEN LEADERS
IN GOVERNMENT THROUGHOUT THE HISTORY OF OUR COUNTRY.  YET, THEY ARE NOT
OFFICIALS OF GOVERNMENT BY VIRTUE OF BEING LAWYERS.  NOR DOES THE
STATUS OF HOLDING A LICENSE TO PRACTICE LAW PLACE ONE SO CLOSE TO THE
CORE OF THE POLITICAL PROCESS AS TO MAKE HIM A FORMULATOR OF GOVERNMENT
POLICY.  /21/ 

WE HOLD THAT ^ 8 (1) VIOLATES THE EQUAL PROTECTION CLAUSE.  /22/
THE JUDGMENT OF THE CONNECTICUT SUPREME COURT IS REVERSED, AND THE CASE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

         IT IS SO ORDERED. 

/1/  APPELLANT IS ELIGIBLE FOR NATURALIZATION BY REASON OF HER
MARRIAGE TO A CITIZEN OF THE UNITED STATES AND RESIDENCE IN THE UNITED
STATES FOR MORE THAN THREE YEARS, 8 U.S.C. ^ 1430 (A).  SHE HAS NOT
FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED
STATES, 8 U.S.C. ^ 1445 (F), AND HAS NO PRESENT INTENTION OF DOING SO.
BRIEF FOR APPELLANT 4.  IN ORDER TO BECOME A CITIZEN, APPELLANT WOULD
BE REQUIRED TO RENOUNCE HER CITIZENSHIP OF THE NETHERLANDS.  8 U.S.C. ^
1448 (A). 

/2/  THE RULES ARE PROMULGATED BY THE JUDGES OF THE SUPERIOR COURT,
CONN. GEN. STAT. REV. ^ 51 - 80, AND ADMINISTERED BY THE CONNECTICUT
BAR EXAMINING COMMITTEE.  THE POSITION OF THE STATE IN THIS CASE IS
REPRESENTED BY THAT COMMITTEE. 

/3/  BECAUSE WE FIND THAT THE RULE DENIES EQUAL PROTECTION, WE DO
NOT REACH APPELLANT'S OTHER CLAIMS. 

/4/  WE DO NOT, OF COURSE, RELY ON BRADWELL TO ESTABLISH THAT
ADMISSION TO THE BAR MAY NOT BE MADE TO DEPEND ON CITIZENSHIP.  THE
HOLDING OF THAT CASE WAS SIMPLY THAT THE RIGHT TO PRACTICE LAW IS NOT A
"PRIVILEGE OR IMMUNITY" WITHIN THE MEANING OF THE FOURTEENTH
AMENDMENT. 

/5/  SEE J. HIGHAM, STRANGERS IN THE LAND 46, 161, 183 (1963).  THE
FULL SCALE OF RESTRICTIONS IMPOSED ON THE WORK OPPORTUNITIES OF ALIENS
IN 1946 IS SHOWN BY M. KONVITZ, THE ALIEN AND THE ASIATIC IN AMERICAN
LAW 190 - 211 (1946). 

/6/  SEE ALSO PEOPLE V. CRANE, 214 N. Y. 154, 108 N. E. 427, AFF'D
SUB NOM. CRANE V. NEW YORK, 239 U. S. 195 (1915); BUT SEE GRAHAM V.
RICHARDSON, 403 U. S. 365, 374 (1971). 

/7/  SEE LOWER COURT CASES COLLECTED AT NOTE, CONSTITUTIONALITY OF
RESTRICTIONS ON ALIENS' RIGHT TO WORK, 57 COL. L. REV. 1012, 1021 -
1023 (1957) (RESTRICTIONS RANGING FROM THE VENDING OF SOFT DRINKS TO
THE SELLING OF LIGHTNING RODS). 

/8/  DISCRIMINATION OR SEGREGATION FOR ITS OWN SAKE IS NOT, OF
COURSE, A CONSTITUTIONALLY PERMISSIBLE PURPOSE.  E. G., BROWN V. BOARD
OF EDUCATION, 347 (. S. 483, 495 (1954); MC LAUGHLIN V. FLORIDA, 379 U.
S. 184 (1964). 

/9/  THE STATE INTEREST REQUIRED HAS BEEN CHARACTERIZED AS
"OVERRIDING," ID., AT 196; LOVING V. VIRGINIA, 388 U. S. 1, 11 (1967);
"COMPELLING," GRAHAM V. RICHARDSON, SUPRA, AT 375; "IMPORTANT," DUNN V.
BLUMSTEIN, 405 U. S. 330, 343 (1972), OR "SUBSTANTIAL," IBID.  WE
ATTRIBUTE NO PARTICULAR SIGNIFICANCE TO THESE VARIATIONS IN DICTION. 

/10/  MC LAUGHLIN V. FLORIDA, SUPRA, AT 196; CF. LOVING V. VIRGINIA
SUPRA, AT 11. 

/11/  WE DID NOT DECIDE IN GRAHAM NOR DO WE DECIDE HERE WHETHER
SPECIAL CIRCUMSTANCES, SUCH AS ARMED HOSTILITIES BETWEEN THE UNITED
STATES AND THE COUNTRY OF WHICH AN ALIEN IS A CITIZEN, WOULD JUSTIFY
THE USE OF A CLASSIFICATION BASED ON ALIENAGE. 

/12/  APPELLANT DENIES THAT THIS WAS INDEED THE STATE'S PURPOSE IN
REQUIRING CITIZENSHIP FOR THE PRACTICE OF LAW, NOTING THAT CITIZENSHIP
IS ALSO REQUIRED OF PRACTITIONERS IN OTHER FIELDS, INCLUDING
HAIRDRESSERS AND COSMETICIANS, CONN. GEN. STAT. REV. ^ 20 - 250,
ARCHITECTS, CONN. GEN. STAT. REV. ^ 20 - 291, AND SANITARIANS, CONN.
GEN. STAT. REV. ^ 20 - 361.  BECAUSE WE DISPOSE OF THE CASE ON OTHER
GROUNDS, WE DO NOT REACH THIS CLAIM. 

/13/  IN THIS CONNECTION, MR. JUSTICE FRANKFURTER WROTE: 

"FROM A PROFESSION CHARGED WITH SUCH RESPONSIBILITIES THERE MUST BE
EXACTED THOSE QUALITIES OF TRUTH-SPEAKING, OF A HIGH SENSE OF HONOR, OF
GRANITE DISCRETION, OF THE STRICTEST OBSERVANCE OF FIDUCIARY
RESPONSIBILITY, THAT HAVE, THROUGHOUT THE CENTURIES, BEEN COMPENDIOUSLY
DESCRIBED AS 'MORAL CHARACTER.'"  SCHWARE V. BOARD OF BAR EXAMINERS,
353 U. S. 232, 247 (1957) (CONCURRING OPINION). 

/14/  LAWYERS FREQUENTLY REPRESENT FOREIGN COUNTRIES AND THE
NATIONALS OF SUCH COUNTRIES IN LITIGATION IN THE COURTS OF THE UNITED
STATES, AS WELL AS IN OTHER MATTERS IN THIS COUNTRY.  IN SUCH
REPRESENTATION, THE DUTY OF THE LAWYER, SUBJECT TO HIS ROLE AS AN
"OFFICER OF THE COURT," IS TO FURTHER THE INTERESTS OF HIS CLIENTS BY
ALL LAWFUL MEANS, EVEN WHEN THOSE INTERESTS ARE IN CONFLICT WITH THE
INTERESTS OF THE UNITED STATES OR OF A STATE.  BUT THIS REPRESENTATION
INVOLVES NO CONFLICT OF INTEREST IN THE INVIDIOUS SENSE.  RATHER, IT
CASTS THE LAWYER IN HIS HONORED AND TRADITIONAL ROLE AS AN AUTHORIZED
BUT INDEPENDENT AGENT ACTING TO VINDICATE THE LEGAL RIGHTS OF A CLIENT,
WHOEVER IT MAY BE.  IT IS CONCEIVABLE THAT AN ALIEN LICENSED TO
PRACTICE LAW IN THIS COUNTRY COULD FIND HIMSELF IN A POSITION IN WHICH
HE MIGHT BE CALLED UPON TO REPRESENT HIS COUNTRY OF CITIZENSHIP AGAINST
THE UNITED STATES IN CIRCUMSTANCES IN WHICH THERE MAY BE A CONFLICT
BETWEEN HIS OBLIGATIONS TO THE TWO COUNTRIES.  IN SUCH RARE SITUATIONS,
AN HONORABLE PERSON, WHETHER AN ALIEN OR NOT, WOULD DECLINE THE
REPRESENTATION. 

/15/  THE TEXT OF THE ATTORNEY'S OATHS IS AS FOLLOWS: 

"YOU SOLEMNLY SWEAR THAT YOU WILL DO NO FALSEHOOD, NOR CONSENT TO
ANY TO BE DONE IN COURT, AND, IF YOU KNOW OF ANY TO BE DONE, YOU WILL
GIVE INFORMATION THEREOF TO THE JUDGES, OR ONE OF THEM, THAT IT MAY BE
REFORMED; YOU WILL NOT WITTINGLY, OR WILLINGLY PROMOTE, SUE OR CAUSE TO
BE SUED, ANY FALSE OF UNLAWFUL SUIT, OR GIVE AID, OR CONSENT, TO THE
SAME; YOU WILL DELAY NO MAN FOR LUCRE OR MALICE; BUT WILL EXERCISE THE
OFFICE OF ATTORNEY, WITHIN THE COURT WHEREIN YOU MAY PRACTICE,
ACCORDING TO THE BEST OF YOUR LEARNING AND DISCRETION, AND WITH
FIDELITY, AS WELL TO THE COURT AS TO YOUR CLIENT, SO HELP YOU GOD." 
JURISDICTIONAL STATEMENT 44. 

/16/  THERE IS NO QUESTION AS TO THE VALIDITY OF REQUIRING AN
APPLICANT, AS A PRECONDITION TO ADMISSION TO THE BAR, TO TAKE SUCH AN
OATH.  LAW STUDENTS RESEARCH COUNCIL V. WADMOND, 401 U. S. 154, 161 -
164 (1970). 

/17/ BECAUSE THE COMMISSIONER'S OATH IS AN OATH TO "SUPPORT THE
CONSTITUTION OF THE UNITED STATES, AND THE CONSTITUTION OF THE STATE OF
CONNECTICUT, SO LONG AS YOU CONTINUE A CITIZEN THEREOF," CONN. GEN.
STAT. REV. ^ 1 - 25 (EMPHASIS ADDED), APPELLANT COULD NOT OF COURSE
TAKE THE OATH AS PRESCRIBED.  TO THE EXTENT THAT THE OATH REITERATES
RULE 8 (1)'S CITIZENSHIP REQUIREMENT, IT SHARES THE SAME CONSTITUTIONAL
DEFECTS WHEN REQUIRED OF PROSPECTIVE MEMBERS OF THE BAR. 

/18/  WE FIND NO MERIT IN THE CONTENTION THAT ONLY CITIZENS CAN IN
GOOD CONSCIENCE TAKE AN OATH TO SUPPORT THE CONSTITUTION.  WE NOTE THAT
ALL PERSONS INDUCTED INTO THE ARMED SERVICES, INCLUDING RESIDENT
ALIENS, ARE REQUIRED BY 10 U.S.C. ^ 502 TO TAKE THE FOLLOWING OATH: 

"I, -- , DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND
DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES,
FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE
SAME; AND THAT I WILL OBEY THE ORDERS OF THE OFFICERS APPOINTED OVER
ME, ACCORDING TO REGULATIONS AND THE UNIFORM CODE OF MILITARY JUSTICE. 
SO HELP ME GOD." 

IF ALIENS CAN TAKE THIS OATH WHEN THE NATION IS MAKING USE OF THEIR
SERVICES IN THE NATIONAL DEFENSE, RESIDENT ALIEN APPLICANTS FOR
ADMISSION TO THE BAR SURELY CANNOT BE PRECLUDED, AS A CLASS, FROM
TAKING AN OATH TO SUPPORT THE CONSTITUTION ON THE THEORY THAT THEY ARE
UNABLE TO TAKE THE OATH IN GOOD FAITH. 

/19/  SEE, E. G., DOOLITTLE V. CLARK, 47 CONN. 316 (1879).  APART
FROM THE COURTS, THE PROFESSION ITSELF HAS LONG SUBJECTED ITS MEMBERS
TO DISCIPLINE UNDER CODES OR CANONS OF PROFESSIONAL ETHICS.  AS EARLY
AS 1908 THE AMERICAN BAR ASSOCIATION ADOPTED 32 CANONS OF PROFESSIONAL
ETHICS.  IN 1970, FOLLOWING SEVERAL YEARS OF STUDY AND REEXAMINATION,
THE HOUSE OF DELEGATES OF THE AMERICAN BAR ASSOCIATION APPROVED A NEW
CODE OF PROFESSIONAL RESPONSIBILITY, WHICH PROVIDES DETAILED ETHICAL
PRESCRIPTIONS AS WELL AS A COMPREHENSIVE CODE OF DISCIPLINARY RULES. 
THE ABA CODE OF PROFESSIONAL RESPONSIBILITY HAS SINCE BEEN APPROVED AND
ADOPTED IN THE DISTRICT OF COLUMBIA AND IN 46 STATES, INCLUDING
CONNECTICUT. 

/20/  NOTHING IN OUR RULES PROHIBITS FROM ADMISSION TO PRACTICE IN
THIS COURT RESIDENT ALIENS WHO HAVE BEEN ADMITTED TO PRACTICE "FOR
THREE YEARS PAST IN THE HIGHEST COURT OF A STATE, TERRITORY, DISTRICT,
COMMONWEALTH, OR POSSESSION" AND WHOSE "PRIVATE AND PROFESSIONAL
CHARACTERS SHALL APPEAR TO BE GOOD."  RULE 5, RULES OF THE SUPREME
COURT. 

/21/  BECAUSE THE COMMITTEE HAS FAILED TO ESTABLISH THAT THE LAWYER
IS AN "OFFICE HOLDER," WE NEED NOT AND DO NOT DECIDE WHETHER THERE IS
MERIT IN THE GENERAL ARGUMENT AND, IF SO, TO WHAT OFFICES IT WOULD
APPLY. 

/22/  IN A THOUGHTFUL OPINION, THE CALIFORNIA SUPREME COURT
UNANIMOUSLY DECLARED UNCONSTITUTIONAL A SIMILAR CALIFORNIA RULE. 
RAFFAELLI V. COMMITTEE OF BAR EXAMINERS, 7 CAL. 3D 288, 496 P. 2D 1264
(1972).  SEE ALSO APPLICATION OF PARK, 484 P. 2D 690 (ALASKA 1971). 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE COURT IN THESE TWO CASES HOLDS THAT AN ALIEN IS NOT REALLY
DIFFERENT FROM A CITIZEN, AND THAT ANY LEGISLATIVE CLASSIFICATION ON
THE BASIS OF ALIENAGE IS "INHERENTLY SUSPECT".  THE FOURTEENTH
AMENDMENT, THE EQUAL PROTECTION CLAUSE OF WHICH THE COURT INTERPRETS AS
INVALIDATING THE STATE LEGISLATION HERE INVOLVED, CONTAINS NO LANGUAGE
CONCERNING "INHERENTLY SUSPECT CLASSIFICATIONS," OR, FOR THAT MATTER,
MERELY "SUSPECT CLASSIFICATIONS."  THE PRINCIPAL PURPOSE OF THOSE WHO
DRAFTED AND ADOPTED THE AMENDMENT WAS TO PROHIBIT THE STATES FROM
INVIDIOUSLY DISCRIMINATING BY REASON OF RACE, SLAUGHTERHOUSE CASES, 16
WALL.  36 (1873), AND, BECAUSE OF THIS PLAINLY MANIFESTED INTENT,
CLASSIFICATIONS BASED ON RACE HAVE RIGHTLY BEEN HELD "SUSPECT" UNDER
THE AMENDMENT.  BUT THERE IS NO LANGUAGE USED IN THE AMENDMENT, OR ANY
HISTORICAL EVIDENCE AS TO THE INTENT OF THE FRAMERS, WHICH WOULD
SUGGEST TO THE SLIGHTEST DEGREE THAT IT WAS INTENDED TO RENDER ALIENAGE
A "SUSPECT" CLASSIFICATION, THAT IT WAS DESIGNED IN ANY WAY TO PROTECT
"DISCRETE AND INSULAR MINORITIES" OTHER THAN RACIAL MINORITIES, OR THAT
IT WOULD IN ANY WAY JUSTIFY THE RESULT REACHED BY THE COURT IN THESE
TWO CASES. 

TWO FACTUAL CONSIDERATIONS DESERVE MORE EMPHASIS THAN ACCORDED BY
THE COURT'S OPINIONS.  FIRST, THE RECORDS IN NOS. 71 - 1222 AND 71 -
1336 CONTAIN NO INDICATION THAT THE ALIENS SUFFERED ANY DISABILITY THAT
PRECLUDED THEM, EITHER AS A GROUP OR INDIVIDUALLY, FROM APPLYING FOR
AND BEING GRANTED THE STATUS OF NATURALIZED CITIZENS.  THE APPELLEES IN
NO. 71 - 1222, AS FAR AS THE RECORD DISCLOSES, TOOK NO STEPS TO OBTAIN
CITIZENSHIP OR INDICATE ANY AFFIRMATIVE DESIRE TO BECOME CITIZENS.  IN
NO. 71 - 1336, APPELLANT WAS ELIGIBLE FOR NATURALIZATION BUT "ELECTED
TO REMAIN A CITIZEN OF THE NETHERLANDS,"  162 CONN. 249, 250, 294 A. 2D
281, 282, AND DELIBERATELY CHOSE NOT TO FILE A DECLARATION OF INTENT
UNDER 8 U.S.C. ^^ 1427 (F), 1430 (A).  THE "STATUS" OF THESE
INDIVIDUALS WAS NOT, THEREFORE, ONE WITH WHICH THEY WERE FOREVER
ENCUMBERED; THEY COULD TAKE STEPS TO ALTER IT WHEN AND IF THEY CHOSE. 
/1/ 

SECOND, THE APPELLEES IN NO. 71 - 1222 ALL SOUGHT TO BE EMPLOYEES OF
ADMINISTRATIVE AGENCIES OF THE NEW YORK CITY GOVERNMENT.  OF THE 20
MEMBERS OF THE CLASS REPRESENTED BY THE NAMED APPELLEES, THREE WERE
TYPISTS, ONE A "SENIOR CLERK," TWO "HUMAN RESOURCES TECHNICIANS," THREE
"SENIOR HUMAN RESOURCES TECHNICIANS," SIX "HUMAN RESOURCE SPECIALISTS,"
THREE "SENIOR HUMAN RESOURCES SPECIALISTS," AND TWO "SUPERVISING HUMAN
RESOURCE SPECIALIST."  THE RECORD DOES NOT REVEAL WHAT FUNCTIONS ARE
PERFORMED BY THESE CIVIL SERVANTS, ALTHOUGH APPELLEE DOUGAL APPARENTLY
WAS THE CHIEF ADMINISTRATOR OF A PROGRAM; THE REMAINING APPELLEES WERE
ALL EMPLOYEES OF THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, THE
GOVERNMENTAL BODY WITH NUMEROUS EMPLOYEES WHICH ADMINISTERS MANY TYPES
OF SOCIAL WELFARE PROGRAMS, SPENDING A GREAT DEAL OF MONEY AND DEALING
CONSTANTLY WITH THE PUBLIC AND OTHER ARMS OF THE FEDERAL, STATE, AND
LOCAL GOVERNMENTS.              I 

THE COURT, BY HOLDING IN THESE CASES AND IN GRAHAM V. RICHARDSON,
403 U. S. 365 (1971), THAT A CITIZEN-ALIEN CLASSIFICATION IS "SUSPECT"
IN THE EYES OF OUR CONSTITUTION, FAILS TO MENTION, LET ALONE
RATIONALIZE, THE FACT THAT THE CONSTITUTION ITSELF RECOGNIZES A BASIC
DIFFERENCE BETWEEN CITIZENS AND ALIENS.  THAT DISTINCTION IS
CONSTITUTIONALLY IMPORTANT IN NO LESS THAN 11 INSTANCES IN A POLITICAL
DOCUMENT NOTED FOR ITS BREVITY.  REPRESENTATIVES, U. S. CONST. ART. I,
^ 2, CL. 2, AND SENATORS, ART. I, ^ 3, CL. 3, MUST BE CITIZENS. 
CONGRESS HAS THE AUTHORITY "(TO ESTABLISH AN UNIFORM RULE OF
NATURALIZATION" BY WHICH ALIENS CAN BECOME CITIZEN MEMBERS OF OUR
SOCIETY, ART. I, ^ 8, CL. 4; THE JUDICIAL AUTHORITY OF THE FEDERAL
COURTS EXTENDS TO SUITS INVOLVING CITIZENS OF THE UNITED STATES "AND
FOREIGN STATES, CITIZENS OR SUBJECTS," ART. III, ^ 2, CL. 1, BECAUSE
SOMEHOW THE PARTIES ARE "DIFFERENT," A DISTINCTION FURTHER MADE BY THE
ELEVENTH AMENDMENT; THE FIFTEENTH, NINETEENTH, TWENTY-FOURTH, AND
TWENTY-SIXTH AMENDMENTS ARE RELEVANT ONLY TO "CITIZENS."  THE PRESIDENT
MUST NOT ONLY BE A CITIZEN BUT "A NATURAL BORN CITIZEN," ART. II, ^ 1,
CL. 5.  ONE MIGHT SPECULATE WHAT MEANING ART. IV, ^ 2, CL. 1, HAS
TODAY. 

NOT ONLY DO THE NUMEROUS CLASSIFICATIONS ON THE BASIS OF CITIZENSHIP
THAT ARE SET FORTH IN THE CONSTITUTION CURB AGAINST BOTH THE ANALYSIS
USED AND THE RESULTS REACHED BY THE COURT IN THESE CASES; THE VERY
AMENDMENT WHICH THE COURT READS TO PROHIBIT CLASSIFICATIONS BASED ON
CITIZENSHIP ESTABLISHES THE VERY DISTINCTION WHICH THE COURT NOW
CONDEMNS AS "SUSPECT."  THE FIRST SENTENCE OF THE FOURTEENTH AMENDMENT
PROVIDES: 

     ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES AND

  SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED

  STATES AND OF THE STATE WHEREIN THEY RESIDE." 

IN CONSTITUTIONALLY DEFINING WHO IS A CITIZEN OF THE UNITED STATES,
CONGRESS OBVIOUSLY THOUGHT IT WAS DOING SOMETHING, AND SOMETHING
IMPORTANT.  CITIZENSHIP MEANT SOMETHING, A STATUS IN AND RELATIONSHIP
WITH A SOCIETY WHICH IS CONTINUING AND MORE BASIC THAN MERE PRESENCE OR
RESIDENCE.  THE LANGUAGE OF THAT AMENDMENT CAREFULLY DISTINGUISHES
BETWEEN "PERSONS" WHO, WHETHER BY BIRTH OR NATURALIZATION, HAD ACHIEVED
A CERTAIN STATUS, AND "PERSONS" IN GENERAL.  THAT A "CITIZEN" WAS
CONSIDERED BY CONGRESS TO BE A RATIONALLY DISTINCT SUBCLASS OF ALL
"PERSONS" IS OBVIOUS FROM THE LANGUAGE OF THE AMENDMENT. 

IT IS UNNECESSARY TO VENTURE INTO A DETAILED DISCUSSION OF WHAT
CONGRESS INTENDED BY THE CITIZENSHIP CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE PARAMOUNT REASON WAS TO AMEND THE CONSTITUTION SO AS TO
OVERRULE EXPLICITLY THE DRED SCOTT DECISION.  SCOTT V. SANDFORD, 19
HOW.  393 (1857).  OUR DECISIONS CONSTRUING "THE PRIVILEGES OR
IMMUNITIES OF CITIZENS OF THE UNITED STATES" ARE NOT IRRELEVANT TO THE
QUESTION NOW BEFORE THE COURT, INSOFAR AS THEY RECOGNIZE THAT THERE ARE
ATTRIBUTES PECULIAR TO THE STATUS OF FEDERAL CITIZENSHIP.  SEE, E. G.
SLAUGHTERHOUSE CASES, 16 WALL., AT 79; UNITED STATES V. CRUIKSHANK, 92
U. S. 542 (1876); EX PARTE YARBROUGH, 110 U. S. 651 (1884); CRUTCHER V.
KENTUCKY, 141 U. S. 47 (1891); LOGAN V. UNITED STATES, 144 U. S. 263
(1892); IN RE QUARLES, 158 U. S. 532 (1895).  CF. CRANDALL V. NEVADA, 6
WALL.  35 (1868).  DECISIONS OF THIS COURT HOLDING THAT AN ALIEN IS A
"PERSON" WITHIN THE MEANING OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT ARE SIMPLY IRRELEVANT TO THE QUESTION OF WHETHER
THAT AMENDMENT PROHIBITS LEGISLATIVE CALSSIFICATIONS BASED UPON THIS
PARTICULAR STATUS.  SINCE THAT AMENDMENT BY ITS OWN TERMS FIRST DEFINED
THOSE WHO HAD THE STATUS AS A LESSER INCLUDED CLASS OF ALL "PERSONS,"
THE COURT'S FAILURE TO ARTICULATE WHY SUCH CLASSIFICATIONS UNDER THE
SAME AMENDMENT ARE NOW FORBIDDEN SERVES ONLY TO ILLUMINATE THE ABSENCE
OF ANY CONSTITUTIONAL FOUNDATION FOR THESE INSTANT DECISIONS. 

THIS COURT HAS HELD TIME AND AGAIN THAT LEGISLATIVE CLASSIFICATIONS
ON THE BASIS OF CITIZENSHIP WERE SUBJECT TO THE RATIONAL-BASIS TEST OF
EQUAL PROTECTION, AND THAT THE JUSTIFICATIONS THEN ADVANCED FOR THE
LEGISLATION WERE RATIONAL.  SEE CLARKE V. DECKEBACH, 274 U. S. 392
(1927); TERRACE V. THOMPSON, 263 U. S. 197 (1923); PORTERFIELD V. WEBB,
263 U. S. 225 (1923); WEBB V. O'BRIEN, 263 U. S. 313 (1923); FRICK V.
WEBB, 263 U. S. 326 (1923); PATSONE V. PENNSYLVANIA, 232 U. S. 138
(1914); BLYTHE V. HINCKLEY, 180 U. S. 333 (1901); HAUENSTEIN V. LYNHAM,
100 U. S. 483 (1880). 

THIS COURT EXPLICITLY HELD THAT IT WAS NOT A VIOLATION OF THE EQUAL
PROTECTION CLAUSE FOR A STATE BY STATUTE TO LIMIT EMPLOYMENT ON PUBLIC
PROJECTS TO CITIZENS.  HEIM V. MC CALL, 239 U. S. 175 (1915); CRANE V.
NEW YORK, 239 U. S. 195 (1915).  EVEN IF THE COURT NOW CONSIDERS THAT
THE JUSTIFICATIONS FOR THOSE ENACTMENTS ARE "NOT CONTROLLING,"  THOSE
DECISIONS CLEARLY HOLD THAT THE RATIONAL-BASIS TEST APPLIES. 

TO REJECT THE METHODOLOGICAL APPROACH OF THESE DECISIONS, THE COURT
NOW RELIES IN PART ON THE DECISIONS IN TRUAX V. RAICH, 239 U. S. 33
(1915), AND TAKAHASHI V. FISH COMM'N, 334 U. S. 410 (1948). 

IN TRUAX, SUPRA, THE COURT INVALIDATED A STATE STATUTE WHICH
PROHIBITED EMPLOYERS OF MORE THAN FIVE PERSONS FROM EMPLOYING MORE THAN
20% NONCITIZENS.  THE LAW WAS APPLICABLE TO ALL BUSINESSES.  IN HOLDING
THAT THE LAW WAS INVALID UNDER THE EQUAL PROTECTION CLAUSE, THE COURT
TOOK PAINS TO EXPLAIN THAT THE DECISION WAS NOT MEANT TO DISTURB PRIOR
HOLDINGS, ID., AT 39, AND SPECIFICALLY NOTED THAT "IT SHOULD BE ADDED
THAT THE ACT IS NOT LIMITED TO PERSONS WHO ARE ENGAGED ON PUBLIC WORK
OR RECEIVE THE BENEFIT OF PUBLIC MONEYS."  ID., AT 40.  INDEED, HEIM
AND CRANE WERE DECIDED AFTER TRUAX, AS WAS CLARKE, WHICH HELD THAT A
STATE COULD CONSTITUTIONALLY PROHIBIT ALIENS FROM ENGAGING IN CERTAIN
TYPES OF BUSINESSES.  IF ANYTHING, TRUAX WAS LIMITED BY THESE LATER
DECISIONS. 

TAKAHASHI, SUPRA, INVOLVED A STATUTE WHICH PROHIBITED ALIENS
"INELIGIBLE FOR CITIZENSHIP" UNDER FEDERAL LAW FROM RECEIVING
COMMERCIAL FISHING LICENSES.  A STATE WHOSE CLASSIFICATION ON THE BASIS
OF RACE WOULD HAVE BEEN LEGITIMATELY "SUSPECT" UNDER THE FOURTEENTH
AMENDMENT WAS IN EFFECT USING CONGRESS' POWER TO CLASSIFY IN GRANTING
OR WITHHOLDING CITIZENSHIP.  THE COURT DID NOT COUNTENANCE THIS ATTEMPT
AT DISCRIMINATION ON THE BASIS OF RACE "BY INCORPORATION."  TWO
FEATURES OF THAT LAW SHOULD BE NOTED.  FIRST, THE STATUTORY
CLASSIFICATION WAS NOT ONE INVOLVING CITIZENS AND ALIENS; IT CLASSIFIED
CITIZENS AND THOSE RESIDENT ALIENS ELIGIBLE FOR CITIZENSHIP INTO ONE
GROUP, AND RESIDENT ALIENS INELIGIBLE FOR CITIZENSHIP INTO ANOTHER.  NO
REAS FOR DISCRIMINATING AMONG RESIDENT ALIENS IS APPARENT.  SECOND, AND
MOST IMPORTANT, IS THE FACT THAT, ALTHOUGH THE COURT PROPERLY REFUSED
TO INQUIRE INTO THE LEGISLATIVE MOTIVE, THE OVERWHELMING EFFECT OF THE
LAW WAS TO BAR RESIDENT ALIENS OF JAPANESE ANCESTRY FROM PROCURING
FISHING LICENSES.  THE COURT WAS NOT BLIND TO THIS FACT, OR TO
HISTORY.  SEE 334 U. S., AT 412 N. L, 413.  THE STATE STATUTE THAT
CLASSIFIES ALIENS ON THE BASIS OF COUNTRY OF ORIGIN IS MUCH MORE LIKELY
TO CLASSIFY ON THE BASIS OF RACE, AND THUS CONFLICT WITH THE CORE
PURPOSE OF THE EQUAL PROTECTION CLAUSE, THAN A STATUTE THAT, AS HERE,
MERELY DISTINGUISHES BETWEEN ALIENAGE AS SUCH AND CITIZENSHIP AS SUCH. 
TAKAHASHI DID NOT, HOWEVER, OVERRULE PREVIOUS DECISIONS, AND CERTAINLY
ANNOUNCED NO "SUSPECT CLASSIFICATION" RULE WITH REGARD TO CITIZEN-ALIEN
CLASSIFICATIONS.  TO SAY THAT IT DID EVADES RATHER THAN CONFRONTS
PRECEDENT. 

THE THIRD, AND APPARENTLY PARAMOUNT, "DECISION" UPON WHICH THE COURT
RELIED IN GRAHAM, AND WHICH IS MERELY QUOTED IN THE INSTANT DECISIONS,
IS A FOOTNOTE FROM UNITED STATES V. CAROLENE PRODUCTS CO., 304 U. S.
144 (1938), A CASE INVOLVING A FEDERAL STATUTE PROHIBITING THE
INTERSTATE SHIPMENT OF FILLED MILK.  THAT FOOTNOTE DISCUSSED THE
PRESUMPTION OF CONSTITUTIONALITY OF STATUTES AND STATED: 

     "NOR NEED WE ENQUIRE WHETHER SIMILAR CONSIDERATIONS ENTER INTO

  THE REVIEW OF STATUTES DIRECTED AT PARTICULAR RELIGIOUS, PIERCE

  V. SOCIETY OF SISTERS, 268 U. S. 510, OR NATIONAL, MEYER V.

  NEBRASKA, 262 U. S. 390; BARTELS V. IOWA, 262 U. S. 404;

  FARRINGTON V. TOKUSHIGE, 273 U. S. 284, OR RACIAL MINORITIES,

  NIXON V. HERNDON, (273 U. S. 536); NIXON V. CONDON, (286 U. S.

  73); WHETHER PREJUDICE AGAINST DISCRETE AND INSULAR MINORITIES

MAY BE A SPECIAL CONDITION, WHICH TENDS SERIOUSLY TO CURTAIL THE

  OPERATION OF THOSE POLITICAL PROCESSES ORDINARILY TO BE RELIED

  UPON TO PROTECT MINORITIES, AND WHICH MAY CALL FOR A

  CORRESPONDINGLY MORE SEARCHING JUDICIAL INQUIRY."  ID., AT 152 -

  153, N. 4. 

ON THE "AUTHORITY" OF THIS FOOTNOTE, WHICH ONLY FOUR MEMBERS OF THE
COURT IN CAROLENE PRODUCTS JOINED, THE COURT IN GRAHAM MERELY STATED
THAT "CLASSIFICATIONS BASED ON ALIENAGE . . . ARE INHERENTLY SUSPECT"
BECAUSE "(ALIENS AS A CLASS ARE A PRIME EXAMPLE OF A 'DISCRETE AND
INSULAR' MINORITY . . . FOR WHOM SUCH HEIGHTENED JUDICIAL SOLICITUDE IS
APPROPRIATE."  403 U. S., AT 372. 

AS MR. JUSTICE FRANKFURTER SO APTLY OBSERVED: 

"A FOOTNOTE HARDLY SEEMS TO BE AN APPROPRIATE WAY OF ANNOUNCING A
NEW CONSTITUTIONAL DOCTRINE, AND THE COROLENE FOOTNOTE DID NOT PURPORT
TO ANNOUNCE ANY NEW DOCTRINE . . . ."  KOVACS V. COOPER, 336 U. S. 77,
90 - 91 (1949) (CONCURRING OPINION). 

EVEN IF THAT JUDICIAL APPROACH WERE ACCEPTED, HOWEVER, THE COURT IS
CONSPICUOUSLY SILENT AS TO WHY THAT "DOCTRINE" SHOULD APPLY TO THESE
CASES. 

THE FOOTNOTE ITSELF DID NOT REFER TO "SEARCHING JUDICIAL INQUIRY"
WHEN A CLASSIFICATION IS BASED ON ALIENAGE, PERHAPS BECAUSE THERE WAS A
LONG LINE OF AUTHORITY HOLDING SUCH CLASSIFICATIONS ENTIRELY CONSONANT
WITH THE FOURTEENTH AMENDMENT.  THE "NATIONAL" CATEGORY MENTIONED
INVOLVED LEGISLATIVE ATTEMPTS TO PROHIBIT EDUCATION IN LANGUAGES OTHER
THAN ENGLISH, WHICH ATTEMPTS WERE HELD UNCONSTITUTIONAL AS A
DEPRIVATION OF "LIBERTY" WITHIN THE MEANING OF THE FOURTEENTH AND FIFTH
AMENDMENTS.  THESE CASES DO NOT MENTION A "CITIZEN-ALIEN" DISTINCTION,
NOR DO THEY SUPPORT A REASONING THAT "NATIONALITY" IS THE SAME AS
"ALIENAGE." 

THE MERE RECITATION OF THE WORDS "INSULAR AND DISCRETE MINORITY" IS
HARDLY A CONSTITUTIONAL REASON FOR PROHIBITING STATE LEGISLATIVE
CLASSIFICATIONS SUCH AS ARE INVOLVED HERE, AND IS NOT NECESSARILY
CONSISTENT WITH THE THEORY PROPOUNDED IN THAT FOOTNOTE.  THE APPROACH
TAKEN IN GRAHAM AND THESE CASES APPEARS TO BE THAT WHENEVER THE COURT
FEELS THAT A SOCIETAL GROUP IS "DISCRETE AND INSULAR," IT HAS THE
CONSTITUTIONAL MANDATE TO PROHIBIT LEGISLATION THAT SOMEHOW TREATS THE
GROUP DIFFERENTLY FROM SOME OTHER GROUP. 

OUR SOCIETY, CONSISTING OF OVER 200 MILLION INDIVIDUALS OF
MULTITUDINOUS ORIGINS, CUSTOMS, TONGUES, BELIEFS, AND CULTURES IS, TO
SAY THE LEAST, DIVERSE.  IT WOULD HARDLY TAKE EXTRAORDINARY INGENUITY
FOR A LAWYER TO FIND 'INSULAR AND DISCRETE' MINORITIES AT EVERY TURN IN
THE ROAD.  YET, UNLESS THE COURT CAN PRECISELY DEFINE AND
CONSTITUTIONALLY JUSTIFY BOTH THE TERMS AND ANALYSIS IT USES, THESE
DECISIONS TODAY STAND FOR THE PROPOSITION THAT THE COURT CAN CHOOSE A
"MINORITY" IT "FEELS" DESERVES "SOLICITUDE" AND THEREAFTER PROHIBIT THE
STATES FROM CLASSIFYING THAT "MINORITY" DIFFERENTLY FROM THE
"MAJORITY."  I CANNOT FIND, AND THE COURT DOES NOT CITE, ANY
CONSTITUTIONAL AUTHORITY FOR SUCH A "WARD OF THE COURT" APPROACH TO
EQUAL PROTECTION. 

THE ONLY OTHER APPARENT RATIONALE FOR THE INVOCATION OF THE "SUSPECT
CLASSIFICATION" APPROACH IN THESE CASES IS THAT ALIENAGE IS A "STATUS,"
AND THE COURT DOES NOT FEEL IT "APPROPRIATE" TO CLASSIFY ON THAT
BASIS.  THIS RATIONALE WOULD APPEAR TO BE SIMILAR TO THAT UTILIZED IN
WEBER V. AETNA CASUALTY & SURETY CO., 406 U. S. 164 (1972), IN WHICH
THE COURT CITED, WITHOUT DISCUSSION, GRAHAM.  ID., AT 176 N. 14.  BUT
THERE IS A MARKED DIFFERENCE BETWEEN A STATUS OR CONDITION SUCH AS
ILLEGITIMACY, NATIONAL ORIGIN, OR RACE, WHICH CANNOT BE ALTERED BY AN
INDIVIDUAL AND THE "STATUS" OF THE APPELLANT IN NO. 71 - 1336 OR OF HE
APPELLEES IN NO. 71 - 1222.  THERE IS NOTHING IN THE RECORD INDICATING
THAT THEIR STATUS AS ALIENS CANNOT BE CHANGED BY THEIR AFFIRMATIVE
ACTS. 

        II 

IN MY VIEW, THE PROPER JUDICIAL INQUIRY IS WHETHER ANY RATIONAL
JUSTIFICATION EXISTS FOR PROHIBITING ALIENS FROM EMPLOYMENT IN THE
COMPETITIVE CIVIL SERVICE AND FROM ADMISSION TO A STATE BAR. 

"STATE LEGISLATURES ARE PRESUMED TO HAVE ACTED WITHIN THEIR
CONSTITUTIONAL POWER DESPITE THE FACT THAT, IN PRACTICE, THEIR LAWS
RESULT IN SOME INEQUALITY.  A STATUTORY DISCRIMINATION WILL NOT BE SET
ASIDE IF ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO JUSTIFY
IT."  MC GOWAN V. MARYLAND, 366 U. S. 420, 425 - 426 (1961). 

BEFORE DISCUSSING THIS QUESTION, A PRELIMINARY REFLECTION ON THE
COURT'S OPINIONS IS WARRANTED.  PERHAPS THE PORTIONS OF THE OPINIONS
THAT WOULD MOST DISTURB NATIVE-BORN CITIZENS AND ESPECIALLY NATURALIZED
CITIZENS WHO HAVE WORKED DILIGENTLY TO LEARN ABOUT OUR HISTORY, MORES,
AND POLITICAL INSTITUTIONS AND WHO HAVE SUCCESSFULLY COMPLETED THE
RIGOROUS PROCESS OF NATURALIZATION, IS THE INTIMATION, IF NOT
STATEMENT, THAT THEY ARE REALLY NOT ANY DIFFERENT FROM ALIENS.  THE
COURT CONCLUDES THAT, BECAUSE ALIENS RESIDING IN OUR COUNTRY MUST PAY
TAXES AND SOME OF THEM (BUT NOT APPELLANT IN NO. 71 - 1336) MIGHT AT
ONE TIME HAVE BEEN SUBJECT TO SERVICE IN THE ARMED FORCES, THE TWO
"GROUPS" ARE INDISTINGUISHABLE FOR PURPOSES OF EQUAL PROTECTION
ANALYSIS.  COMPULSORY MILITARY SERVICE HAS BEEN ENDED BY CONGRESS.  /2/
GIVEN THE UBIQUITY OF TAXES IN OUR PRESENT SOCIETY, IT IS, IN MY
OPINION, TOTALLY UNCONVINCING TO ATTRIBUTE TO THEIR PAYMENT THE
LEVELING SIGNIFICANCE INDICATED BY THE COURT.  IS AN ALIEN WHO, AFTER
ARRIVING FROM ABROAD IN NEW YORK CITY, IMMEDIATELY PURCHASES A PACK OF
CIGARETTES, THEREBY PAYING FEDERAL, STATE, AND CITY TAXES, REALLY NO
DIFFERENT FROM A CITIZEN?     THE OPINION OF THE COURT IN NO. 71 - 1222
WOULD APPEAR TO ANSWER THIS QUESTION IN THE NEGATIVE, BUT IT THEN
PROCEEDS TO STATE THAT THERE IS A DIFFERENCE BETWEEN ALIENS AND
CITIZENS FOR PURPOSES OF PARTICIPATION AND SERVICE IN THE POLITICAL
ARENAS.  UNLESS THE COURT MEANS THAT CITIZENSHIP ONLY HAS MEANING IN A
POLITICAL CONTEXT, THE ANALYTICAL APPROACH OF THE COURT IS LESS THAN
CLEAR, HARDLY CONVINCING, AND CURIOUSLY CONFLICTS WITH THE HIGH
NONPOLITICAL VALUE THAT THE COURT HAS HERETOFORE ASCRIBED TO
CITIZENSHIP.  IF CITIZENSHIP IS NOT "SPECIAL," THE COURT HAS WASTED A
GREAT DEAL OF EFFORT IN THE PAST.  CF. AFROYIM V. RUSK, 387 U. S. 253
(1967); TROP V. DULLES, 356 U. S. 86 (1958). 

THESE STATUTES DO NOT CLASSIFY ON THE BASIS OF COUNTRY OF ORIGIN;
THE DISTINCTIONS ARE NOT BETWEEN NATIVE AMERICANS AND "FOREIGNERS," BUT
BETWEEN CITIZENS AND ALIENS.  THE PROCESS OF NATURALIZATION WAS
SPECIFICALLY DESIGNED BY CONGRESS TO REQUIRE A FOREIGN NATIONAL TO
DEMONSTRATE THAT HE OR SHE IS FAMILIAR WITH THE HISTORY, TRADITIONS,
AND INSTITUTIONS OF OUR SOCIETY IN A WAY THAT A NATIVE-BORN CITIZEN
WOULD LEARN FROM FORMAL EDUCATION AND BASIC SOCIAL CONTACT.  CONGRESS
SPECIFICALLY PROVIDED THAT AN ALIEN SEEKING CITIZENSHIP STATUS MUST
DEMONSTRATE "AN UNDERSTANDING OF THE ENGLISH LANGUAGE" AND "A KNOWLEDGE
AND UNDERSTANDING OF THE FUNDAMENTALS OF THE HISTORY, AND OF THE
PRINCIPLES AND FORM OF GOVERNMENT, OF THE UNITED STATES."  8 U.S.C. ^
1423.  THE PURPOSE WAS TO MAKE THE ALIEN ESTABLISH THAT HE OR SHE
UNDERSTOOD, AND COULD BE INTEGRATED INTO, OUR SOCIAL SYSTEM. 

     "THROUGH THE SYSTEM OF CITIZENSHIP CLASSES SPONSORED BY THE

  IMMIGRATION AND NATURALIZATION SERVICE AND THE LOCAL SCHOOL

  SYSTEM, THE ALIEN IS AIDED IN PREPARING HIMSELF FOR CITIZENSHIP,

  AND EVERY EFFORT IS MADE TO GIVE HIM FUNDAMENTAL AND UNIFORM

  KNOWLEDGE OF OUR POLITICAL AND SOCIAL STRUCTURE.  IN ORDER THAT

  HE MAY INTELLIGENTLY USE THIS FUNDAMENTAL AND UNIFORM KNOWLEDGE

  AND SO THAT HE MAY BE A COMPLETE AND THOROUGHLY INTEGRATED MEMBER

  OF OUR AMERICAN SOCIETY, THE COMMITTEE (HOUSE JUDICIARY

  COMMITTEE) FEELS THAT HE SHOULD HAVE A BASIC KNOWLEDGE OF THE

 COMMON LANGUAGE OF THE COUNTRY AND BE ABLE TO READ, WRITE, AND

  SPEAK IT WITH REASONABLE FACILITY."  H. R. REP. NO. 1365, 82D

  CONG., 2D SESS., 78 (1952) (EMPHASIS ADDED). 

SEE ALSO 8 U.S.C. ^ 1424, WHICH PRECLUDES ALIENS WHO MANIFEST
CERTAIN OPPOSITION TO OUR SOCIETY OR FORM OF GOVERNMENT FROM BEING
NATURALIZED.  AN ALIEN MUST DEMONSTRATE "GOOD MORAL CHARACTER," 8
U.S.C. ^ 1427 (A)(3), WHICH WAS INTENDED BY CONGRESS TO MEAN A BROAD
"ATTACHMENT) TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED
STATES, AND (DISPOSITION) TO THE GOOD ORDER AND HAPPINESS OF THE UNITED
STATES."  H. R. REP. NO. 1365, SUPRA, AT 80.  SEE ALSO 8 CFR ^ 332B
(1973), DETAILING THE COOPERATION BETWEEN THE IMMIGRATION AND
NATURALIZATION SERVICE AND LOCAL SCHOOLS CONDUCTING CITIZENSHIP
EDUCATION FOR APPLICANTS FOR NATURALIZATION.  THE ABOVE IS SUFFICIENT
TO DEMONSTRATE, I BELIEVE, THAT CONGRESS PROVIDED THAT ALIENS SEEKING
CITIZENSHIP STATUS PROVE WHAT CITIZENS BY BIRTH ARE, AS A CLASS,
PRESUMED TO UNDERSTAND:  A BASIC FAMILIARITY WITH OUR SOCIAL AND
POLITICAL MORES AND INSTITUTIONS.  THE NATURALIZED CITIZEN HAS
DEMONSTRATED BOTH THE WILLINGNESS AND ABILITY TO INTEGRATE INTO OUR
SOCIAL SYSTEM AS A WHOLE, NOT JUST INTO OUR "POLITICAL COMMUNITY," AS
THE COURT APPARENTLY USES THE TERM.  HE PROVED THAT HE HAS BECOME
"LIKE" A NATIVEBORN CITIZEN IN WAYS THAT ALIENS, AS A CLASS, COULD BE
PRESUMED NOT TO BE.  THE COURT SIMPLY IGNORES THE PURPOSE OF THE
PROCESS OF ASSIMILATION INTO AND DEDICATION TO OUR SOCIETY THAT
CONGRESS PRESCRIBED TO MAKE ALIENS "LIKE" CITIZENS. 

IN NO. 71 - 1222, I DO NOT BELIEVE THAT IT IS IRRATIONAL FOR NEW
YORK TO REQUIRE THIS CLASS OF CIVIL SERVANTS TO BE CITIZENS, EITHER
NATURAL BORN OR NATURALIZED.  THE PROLIFERATION OF PUBLIC
ADMINISTRATION THAT OUR SOCIETY HAS WITNESSED IN RECENT YEARS, AS A
RESULT OF THE REGULATION OF CONDUCT AND THE DISPENSATION OF SERVICES
AND FUNDS, HAS VESTED A GREAT DEAL OF DE FACTO DECISIONMAKING OR
POLICYMAKING AUTHORITY IN THE HANDS OF EMPLOYEES WHO WOULD NOT BE
CONSIDERED THE TEXTBOOK EQUIVALENT OF POLICYMAKERS OF THE LEGISLATIVE
OR "TOP" ADMINISTRATIVE VARIETY.  NEVERTHELESS, AS FAR AS THE PRIVATE
INDIVIDUAL WHO MUST SEEK APPROVAL OR SERVICES IS CONCERNED, MANY OF
THESE "LOW LEVEL" CIVIL SERVANTS ARE IN FACT POLICYMAKERS.  GOLDBERG V.
KELLY, 397 U. S. 254 (1970), IMPLICITLY RECOGNIZED THAT THOSE WHO APPLY
FACTS TO INDIVIDUAL CASES ARE AS MUCH "GOVERNORS" AS THOSE WHO WRITE
THE LAWS OR REGULATIONS THE "LOW-LEVEL" ADMINISTRATOR MUST "APPLY." 
SINCE POLICY-MAKING FOR A POLITICAL COMMUNITY IS NOT NECESSARILY THE
EXCLUSIVE PRESERVE OF THE LEGISLATORS, JUDGES, AND "TOP"
ADMINISTRATORS, IT IS NOT IRRATIONAL FOR THE CITY OF NEW YORK TO
PROVIDE THAT ONLY CITIZENS SHOULD BE ADMITTED TO THE COMPETITIVE CIVIL
SERVICE. 

BUT THE JUSTIFICATION OF EFFICIENT GOVERNMENT IS AN EVEN MORE
CONVINCING RATIONALE.  NATIVE-BORN CITIZENS CAN BE EXPECTED TO BE
FAMILIAR WITH THE SOCIAL AND POLITICAL INSTITUTIONS OF OUR SOCIETY;
WITH THE SOCIETY AND POLITICAL MORES THAT AFFECT HOW WE REACT AND
INTERACT WITH OTHER CITIZENS.  NATURALIZED CITIZENS HAVE ALSO
DEMONSTRATED THEIR WILLINGNESS TO ADJUST TO OUR PATTERNS OF LIVING AND
ATTITUDES, AND HAVE DEMONSTRATED A BASIC UNDERSTANDING OF OUR
INSTITUTIONS, SYSTEM OF GOVERNMENT, HISTORY, AND TRADITIONS.  IT IS NOT
IRRATIONAL TO ASSUME THAT ALIENS AS A CLASS ARE NOT FAMILIAR WITH HOW
WE AS INDIVIDUALS TREAT OTHERS AND HOW WE EXPECT "GOVERNMENT"  TO TREAT
US.  AN ALIEN WHO GREW UP IN A COUNTRY IN WHICH POLITICAL MORES DO NOT
REJECT BRIBERY OR SELF-DEALING TO THE SAME EXTENT THAT OUR CULTURE
DOES; IN WHICH AN IMPERIOUS BUREAUCRACY HISTORICALLY ADOPTED A
COMPLACENT OR CONTEMPTUOUS ATTITUDE TOWARD THOSE IT WAS SUPPOSE TO
SERVE; IN WHICH FEWER IF ANY CHECKS EXISTED ON ADMINISTRATIVE ABUSES;
IN WHICH "LOW-LEVEL" CIVIL SERVANTS SERVE AT THE WILL OF THEIR
SUPERIORS--COULD RATIONALLY BE THOUGHT NOT TO BE ABLE TO DEAL WITH THE
PUBLIC AND WITH CITIZEN CIVIL SERVANTS WITH THE SAME RAPPORT THAT ONE
FAMILIAR WITH OUR POLITICAL AND SOCIAL MORES WOULD, OR TO APPROACH HIS
DUTIES WITH THE ATTITUDE THAT SUCH POSITIONS EXIST FOR SERVICE, NOT
PERSONAL SINECURES OF EITHER THE CIVIL SERVANT OR HIS OR HER SUPERIOR. 
THESE CONSIDERATIONS COULD RATIONALLY BE EXPECTED TO INFLUENCE HOW AN
ADMINISTRATOR IN CHARGE OF A PROGRAM, SUCH AS APPELLEE DOUGALL, MADE
DECISIONS IN ALLOCATING FUNDS, HIRING OR DEALING WITH PERSONNEL, OR
DECISIONMAKING, OR HOW A LOWER LEVEL CIVIL SERVANT, SUCH AS APPELLEE
JORGE, WAS ABLE TO PERFORM WITH AND FOR FELLOW WORKERS AND SUPERIORS,
EVEN IF SHE HAD NO DIRECT CONTACT WITH THE PUBLIC.  ALL THESE FACTORS
COULD MATERIALLY AFFECT THE EFFICIENT FUNCTIONING OF THE CITY
GOVERNMENT, AND POSSIBLY AS WELL THE VERY INTEGRITY OF THAT
GOVERNMENT.  SUCH A LEGISLATIVE PURPOSE IS CLEARLY NOT IRRATIONAL. 

IN NO. 71 - 1336 THE ANSWER IS NOT AS CLEARCUT.  THE STATES
TRADITIONALLY HAVE HAD GREAT LATITUDE IN PRESCRIBING RULES AND
REGULATIONS CONCERNING TECHNICAL COMPETENCE AND CHARACTER FITNESS,
GOVERNING THOSE WHO SEEK TO BE ADMITTED TO PRACTICE LAW.  SEE, E. G.
KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U. S. 36 (1961).  THE
IMPORTANCE OF LAWYERS AND THE JUDICIARY IN OUR SYSTEM OF GOVERNMENT AND
JUSTICE NEEDS NO EXTENDED COMMENT.  AN ATTORNEY IS AN "OFFICER OF THE
COURT" IN CONNECTICUT, A STATUS THIS COURT HAS ALSO RECOGNIZED.  SEE,
E. G., POWELL V. ALABAMA, 287 U. S. 45, 73 (1932); EX PARTE GARLAND, 4
WALL.  333, 370 (1867).  HE REPRESENTS HIS CLIENT, BUT ALSO, IN
CONNECTICUT, MAY "SIGN WRITS AND SUBPOENAS, TAKE RECOGNIZANCES, (AND)
ADMINISTER OATHS."  CONN. GEN. STAT. REV. ^ 51 - 85. 

MORE IMPORTANT THAN THESE EMOLUMENTS OF THEIR POSITION, THOUGH, IS
THE TREMENDOUS RESPONSIBILITY AND TRUST THAT OUR SOCIETY PLACES IN THE
HANDS OF LAWYERS.  THE LIBERTY AND PROPERTY OF THE CLIENT MAY DEPEND
UPON THE COMPETENCE AND FIDELITY OF THE REPRESENTATION AFFORDED BY THE
LAWYER IN ANY NUMBER OF PARTICULAR LAWSUITS.  BUT BY VIRTUE OF THEIR
OFFICE LAWYERS ARE ALSO GIVEN, AND HAVE INCREASINGLY UNDERTAKEN TO
EXERCISE, AUTHORITY TO SEEK TO ALTER SOME OF THE SOCIAL RELATIONSHIPS
AND INSTITUTIONS OF OUR SOCIETY BY USE OF THE JUDICIAL PROCESS.  NO
DOUBT AN ALIEN EVEN UNDER TODAY'S DECISION MAY BE REQUIRED TO BE
LEARNED IN THE LAW AND FAMILIAR WITH THE LANGUAGE SPOKEN IN THE COURTS
OF THE PARTICULAR STATE INVOLVED.  BUT CONNECTICUT'S REQUIREMENT OF
CITIZENSHIP REFLECTS ITS JUDGMENT THAT SOMETHING MORE THAN TECHNICAL
SKILLS ARE NEEDED TO BE A LAWYER UNDER OUR SYSTEM.  I DO NOT BELIEVE IT
IS IRRATIONAL FOR A STATE THAT MAKES THAT JUDGMENT TO REQUIRE THAT
LAWYERS HAVE AN UNDERSTANDING OF THE AMERICAN POLITICAL AND SOCIAL
EXPERIENCE, WHETHER GAINED FROM GROWING UP IN THIS COUNTRY, AS IN THE
CASE OF A NATIVE-BORN CITIZEN, OR FROM THE NATURALIZATION PROCESS, AS
IN THE CASE OF A FOREIGN-BORN CITIZEN.  I SUPPOSE THE CONNECTICUT BAR
EXAMINING COMMITTEE COULD ITSELF ADMINISTER TESTS IN AMERICAN HISTORY,
GOVERNMENT, AND SOCIOLOGY, BUT THE STATE DID NOT CHOOSE TO GO THIS
ROUTE.  INSTEAD, IT CHOSE TO OPERATE ON THE ASSUMPTION THAT CITIZENS AS
A CLASS MIGHT REASONABLY BE THOUGHT TO HAVE A SIGNIFICANTLY GREATER
DEGREE OF UNDERSTANDING OF OUR EXPERIENCE THAN WOULD ALIENS. 
PARTICULARLY IN THE CASE OF ONE SUCH AS APPELLANT, WHO CANDIDLY ADMITS
THAT SHE WANTS TO LIVE AND WORK IN THE UNITED STATES BUT DOES NOT WANT
TO SEVER HER FUNDAMENTAL SOCIAL AND POLITICAL RELATIONSHIP WITH THE
COUNTRY OF HER BIRTH, I DO NOT BELIEVE THE STATE'S JUDGMENT IS
IRRATIONAL. 

I WOULD THEREFORE REVERSE THE JUDGMENT IN NO. 71 - 1222 AND AFFIRM
THAT IN NO. 71 - 1336. 

/1/  ALTHOUGH SOME OF THE MEMBERS OF THE CLASS HAD NOT BEEN
RESIDENTS OF THE UNITED STATES FOR FIVE YEARS AT THE TIME THE COMPLAINT
WAS FILED, AND THEREFORE WERE INELIGIBLE TO APPLY IMMEDIATELY FOR
CITIZENSHIP, 8 U.S.C. ^ 1427, THERE IS NO INDICATION THAT THESE
MEMBERS, ASSUMING THAT THEY ARE IN THE SAME "CLASS" AS THE NAMED
APPELLEES, WOULD BE PROHIBITED FROM SEEKING CITIZENSHIP STATUS AFTER
THEY HAD RESIDED IN THIS COUNTRY FOR THE REQUIRED PERIOD.  IN ANY
EVENT, THIS CIRCUMSTANCE ONLY UNDERSCORES THE FACT THAT IT IS NOT
UNREASONABLE TO ASSUME THAT THEY HAVE NOT LEARNED ABOUT AND ADAPTED TO
OUR MORES AND INSTITUTIONS TO THE SAME EXTENT AS ONE WHO HAD LIVED HERE
FOR FIVE YEARS WOULD HAVE THROUGH SOCIAL CONTACT. 

/2/  ALTHOUGH STATED IN GRAHAM AND THE INSTANT CASES THAT ALIENS ARE
"LIKE" CITIZENS BECAUSE THEY WERE SUBJECT TO SERVICE IN THE ARMED
SERVICES, NONE OF THE OPINIONS CONSIDERED IN FACT THAT CONGRESS
PROVIDED THAT ALIENS WHO IN FACT SERVED HONORABLY COULD EXPEDITIOUSLY
BECOME CITIZENS.  8 U.S.C. ^ 1440.  THE COURT'S RELIANCE ON THE FACT
THAT SOME MALE ALIENS HAD TO REGISTER FOR THE DRAFT AND SERVE IF CALLED
TO SUGGEST THAT ALIENS AND CITIZENS ARE "THE SAME" NEGLECTS TO CONSIDER
THIS STATUTE:  ALIENS WHO SERVED HONORABLY WERE "LIKE" CITIZENS IN THAT
THEY DEMONSTRATED, LIKE CITIZENS, A COMMITMENT TO OUR SOCIETY THAT
CONGRESS BELIEVED WARRANTED, OTHER CONSIDERATIONS ASIDE, THEIR
IMMEDIATE, FORMAL ACCEPTANCE INTO OUR SOCIETY. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

I AGREE GENERALLY WITH MR. JUSTICE REHNQUIST'S DISSENT AND ADD A FEW
OBSERVATIONS. 

IN THE RAPIDLY SHRINKING "ONE WORLD" WE LIVE IN THERE ARE NUMEROUS
REASONS WHY THE STATES MIGHT APPROPRIATELY CONSIDER RELAXING SOME OF
THE RESTRAINTS ON THE PRACTICE OF PROFESSIONS BY ALIENS.  THE
FUNDAMENTAL FACTOR, HOWEVER, IS THAT THE STATES RESERVED, AMONG OTHER
POWERS, THAT OF REGULATING THE PRACTICE OF PROFESSIONS WITHIN THEIR OWN
BORDERS.  IF THAT CONCEPT HAS LESS VALIDITY NOW THAN IN THE 18TH
CENTURY WHEN IT WAS MADE PART OF THE "BARGAIN" TO CREATE A FEDERAL
UNION, IT IS NONETHELESS PART OF THAT COMPACT. 

A LARGE NUMBER OF AMERICAN NATIONALS ARE ADMITTED TO THE PRACTICE OF
LAW IN MORE THAN A DOZEN COUNTRIES; THIS WILL EXPAND AS WORLD TRADE
ENLARGES.  BUT THE QUESTION FOR THE COURT IS NOT WHAT IS ENLIGHTENED OR
SOUND POLICY BUT RATHER WHAT THE CONSTITUTION AND ITS AMENDMENTS
PROVIDE; I AM UNABLE TO ACCORD TO THE FOURTEENTH AMENDMENT THE
EXPANSIVE READING THE COURT GIVES IT. 

IN RECENT YEARS THE COURT, IN A RATHER CASUAL WAY, HAS ARTICULATED
THE CODE PHRASE "SUSPECT CLASSIFICATION" AS THOUGH IT EMBRACED A
REASONED CONSTITUTIONAL CONCEPT.  ADMITTEDLY, IT SIMPLIFIES JUDICIAL
WORK AS DO "PER SE" RULES, BUT IT TENDS TO STOP ANALYSIS WHILE
APPEARING TO SUGGEST AN ANALYTICAL PROCESS. 

MUCH AS I AGREE WITH SOME ASPECTS OF THE POLICY IMPLICIT IN THE
COURT'S HOLDING, I AM BOUND--IF I APPLY THE CONSTITUTION AS ITS WORDS
AND INTENT SPEAK TO ME--TO REJECT THE GOOD POLICY THE COURT NOW
ADOPTS. 

I AM UNWILLING TO ACCEPT WHAT SEEMS TO ME A DENIGRATION OF THE
POSTURE AND ROLE OF A LAWYER AS AN "OFFICER OF THE COURT."  IT IS THAT
ROLE THAT A STATE IS ENTITLED TO RELY ON AS A BASIS FOR EXCLUDING
ALIENS FROM THE PRACTICE OF LAW.  BY VIRTUE OF HIS ADMISSION A LAWYER
IS GRANTED WHAT CAN FAIRLY BE CALLED A MONOPOLY OF SORTS; HE IS GRANTED
A LICENSE TO APPEAR AND TRY CASES; HE CAN CAUSE WITNESSES TO DROP THEIR
PRIVATE AFFAIRS AND BE CALLED FOR DEPOSITIONS AND OTHER PRETRIAL
PROCESSES THAT, WHILE SUBJECT TO THE ULTIMATE CONTROL OF THE COURT, ARE
CONDUCTED BY LAWYERS OUTSIDE COURTROOMS; THE ENORMOUS POWER OF CROSS
EXAMINATION OF WITNESSES IS GRANTED EXCLUSIVELY TO LAWYERS.  INHERENT
IN THESE LARGE POWERS IS THE ABILITY TO COMPEL ANSWERS SUBJECT, OF
COURSE, TO SUCH LIMITING RESTRAINTS AS THE FIFTH AMENDMENT AND RULES OF
EVIDENCE.  IN MOST STATES A LAWYER IS AUTHORIZED TO ISSUE SUBPOENAS
COMMANDING THE PRESENCE OF PERSONS AND EVEN THE PRODUCTION OF DOCUMENTS
UNDER CERTAIN CIRCUMSTANCES.  THE BROAD MONOPOLY GRANTED TO LAWYERS IS
THE AUTHORITY TO PRACTICE A PROFESSION AND BY VIRTUE OF THAT TO DO
THINGS OTHER CITIZENS MAY NOT LAWFULLY DO.  IN THE COMMON LAW TRADITION
THE LAWYER BECOMES THE ATTORNEY--THE AGENT--FOR A CLIENT ONLY BY VIRTUE
OF HIS HAVING BEEN FIRST INVESTED WITH POWER BY THE STATE, USUALLY BY A
COURT.  THE LAWYER'S OBLIGATIONS AS AN OFFICER OF THE COURT PERMIT THE
COURT TO CALL ON THE LAWYER TO PERFORM DUTIES WHICH NO COURT COULD
ORDER CITIZENS GENERALLY TO DO, INCLUDING THE OBLIGATION TO OBSERVE
CODES OF ETHICAL CONDUCT NOT BINDING ON THE PUBLIC GENERALLY. 

THE CONCEPT OF A LAWYER AS AN OFFICER OF THE COURT AND HENCE PART OF
THE OFFICIAL MECHANISM OF JUSTICE IN THE SENSE OF OTHER COURT OFFICERS,
INCLUDING THE JUDGE, ALBEIT WITH DIFFERENT DUTIES, IS NOT UNIQUE IN OUR
SYSTEM BUT IT IS A SIGNIFICANT FEATURE OF THE LAWYER'S ROLE IN THE
COMMON LAW.  THIS CONCEPT HAS SUSTAINED SOME EROSION OVER THE YEARS AT
THE HANDS OF CYNICS WHO VIEW THE LAWYER MUCH AS THE "HIRED GUN" OF THE
OLD WEST.  IN LESS FLAMBOYANT TERMS THE LAWYER IN THIS RELATION TO THE
CLIENT CAME TO BE CALLED A "MOUTHPIECE" IN THE GANGLAND PARLANCE OF THE
1930'S.  UNDER THIS BLEAK VIEW OF THE PROFESSION THE LAWYER, ONCE
ENGAGED, DOES HIS CLIENT'S BIDDING, LAWFUL OR NOT, ETHICAL OR NOT. 

WHATEVER THE EROSION OF THE OFFICER-OF-THE-COURT ROLE, THE
OVERWHELMING PROPORTION OF THE LEGAL PROFESSION REJECTS BOTH THE
DENIGRATED ROLE OF THE ADVOCATE AND COUNSELOR THAT RENDERS HIM A LACKEY
TO THE CLIENT AND THE ALIEN IDEA THAT HE IS AN AGENT OF GOVERNMENT. 
SEE AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE,
THE PROSECUTION FUNCTION AND THE DEFENSE FUNCTION ^ 1.1 (APPROVED DRAFT
1971). 

THE ROLE OF A LAWYER AS AN OFFICER OF THE COURT PREDATES THE
CONSTITUTION; IT WAS CARRIED OVER FROM THE ENGLISH SYSTEM AND BECAME
FIRMLY EMBEDDED IN OUR TRADITION.  IT INCLUDED THE OBLIGATION OF FIRST
DUTY TO CLIENT.  BUT THAT DUTY NEVER WAS AND IS NOT TODAY AN ABSOLUTE
OR UNQUALIFIED DUTY.  IT IS A FIRST LOYALTY TO SERVE THE CLIENT'S
INTEREST BUT ALWAYS WITHIN--NEVER OUTSIDE--THE LAW, THUS PLACING A
HEAVY PERSONAL AND INDIVIDUAL RESPONSIBILITY ON THE LAWYER.  THAT THIS
IS OFTEN UNENFORCEABLE, THAT DEPARTURES FROM IT REMAIN UNDETECTED, AND
THAT JUDGES AND BAR ASSOCIATIONS HAVE BEEN SINGULARLY TOLERANT OF
MISDEEDS OF THEIR BRETHREN, RENDERS IT NO LESS IMPORTANT TO A
PROFESSION THAT IS INCREASINGLY CRUCIAL TO OUR WAY OF LIFE.  THE VERY
INDEPENDENCE OF THE LAWYER FROM THE GOVERNMENT ON THE ONE HAND AND
CLIENT ON THE OTHER IS WHAT MAKES LAW A PROFESSION, SOMETHING APART
FROM TRADES AND VOCATIONS IN WHICH OBLIGATIONS OF DUTY AND CONSCIENCE
PLAY A LESSER PART.  IT IS AS CRUCIAL TO OUR SYSTEM OF JUSTICE AS THE
INDEPENDENCE OF JUDGES THEMSELVES. 

THE HISTORY OF THE LEGAL PROFESSION IS FILLED WITH ACCOUNTS OF
LAWYERS WHO RISKED CAREERS BY ASSERTING THEIR INDEPENDENT STATUS IN
OPPOSITION TO POPULAR AND GOVERNMENTAL ATTITUDES, AS JOHN ADAMS DID IN
BOSTON TO DEFEND THE SOLDIERS ACCUSED IN WHAT WE KNOW IN OUR FOLKLORE
AS THE "BOSTON MASSACRE."  TO THAT COULD BE ADDED THE LAWYERS WHO
DEFENDED JOHN PETER ZENGER AND DOWN TO LAWYERS IN MODERN TIMES IN CASES
SUCH AS JOHNSON V. ZERBST, 304 U. S. 458 (1938).  THE CRUCIAL FACTOR IN
ALL THESE CASES IS THAT THE ADVOCATES PERFORMED THEIR DUAL ROLE-OFFICER
OF THE COURT AND ADVOCATE FOR A CLIENT--STRICTLY WITHIN AND NEVER IN
DEROGATION OF HIGH ETHICAL STANDARDS.  THERE IS THUS A REASONABLE,
RATIONAL BASIS FOR A STATE TO CONCLUDE THAT PERSONS OWING FIRST LOYALTY
TO THIS COUNTRY WILL GRASP THESE TRADITIONS AND APPLY OUR CONCEPTS MORE
THAN THOSE WHO SEEK THE BENEFITS OF AMERICAN CITIZENSHIP WHILE
DECLINING TO ACCEPT THE BURDENS OF CITIZENSHIP IN THIS COUNTRY. 

IN SOME COUNTRIES THE LEGAL SYSTEM IS SO STRUCTURED THAT ALL LAWYERS
ARE LITERALLY AGENTS OF GOVERNMENT AND AS SUCH BOUND TO PLACE THE
INTERESTS OF GOVERNMENT OVER THOSE OF THE CLIENT.  THAT CONCEPT IS SO
ALIEN TO OUR SYSTEM WITH AN INDEPENDENT BAR THAT I FIND IT DIFFICULT TO
SEE HOW NATIONALS OF SUCH A COUNTRY, INCULCATED WITH THOSE IDEAS AND AT
THE SAME TIME UNWILLING TO ACCEPT AMERICAN CITIZENSHIP, COULD BE
PROPERLY INTEGRATED INTO OUR SYSTEM.  AT THE VERY LEAST WE OUGHT NOT
STRETCH THE FOURTEENTH AMENDMENT TO FORCE THE STATES TO ACCEPT ANY
NATIONAL OF ANY COUNTRY SIMPLY BECAUSE OF A RECITAL OF THE REQUIRED
OATH AND PASSING OF THE BAR EXAMINATION. 

SINCE THE COURT NOW STRIKES DOWN A POWER OF THE STATES ACCEPTED AS
FUNDAMENTAL SINCE 1781, EVEN IF STATES SOMETIMES ELECTED NOT TO
EXERCISE IT, CF. BRADWELL V. STATE, 16 WALL.  130 (1873), THE STATES
MAY WELL MOVE TO ADOPT, BY STATUTE OR RULE OF COURT, A RECIPROCAL
PROVISO, FAMILIAR IN OTHER CONTEXTS; UNDER SUCH A RECIPROCAL TREATMENT
OF APPLICANTS A STATE WOULD ADMIT TO THE PRACTICE OF LAW THE NATIONALS
OF SUCH OTHER COUNTRIES AS ADMIT AMERICAN CITIZENS TO PRACTICE.  I FIND
NOTHING IN THE CORE HOLDING OF ZSCHERNIG V. MILLER, 389 U. S. 429
(1968), TO FORECLOSE STATE ADOPTION OF SUCH RECIPROCAL PROVISIONS.  SEE
CLARK V. ALLEN, 331 U. S. 503 (1947). 

R. DAVID BROILES ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF AND JOEL M. GORA. 

GEORGE R. TIERNAN ARGUED THE CAUSE AND FILED A BRIEF FOR THE STATE
BAR EXAMINING COMMITTEE OF CONNECTICUT. 

  LOUIS J. LEFKOWITZ, PRO SE, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT
ATTORNEY GENERAL, AND DANIEL M. COHEN, ASSISTANT ATTORNEY GENERAL,
FILED A BRIEF FOR THE ATTORNEY GENERAL OF NEW YORK AS AMICUS CURIAE
URGING AFFIRMANCE. 
..END :





HUNT V. MCNAIR, 413 U.S. 734 


       APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA 

     NO. 71 - 1523.  ARGUED FEBRUARY 21, 1973--DECIDED JUNE 25,
1973;

  258 S.C. 97, 187 S.E.2D 645, AFFIRMED. 


    IN THIS ACTION FOR INJUNCTIVE AND DECLARATORY RELIEF APPELLANT

  CHALLENGES THE SOUTH CAROLINA EDUCATIONAL FACILITIES AUTHORITY

  ACT AS VIOLATIVE OF THE ESTABLISHMENT CLAUSE OF THE FIRST

  AMENDMENT INSOFAR AS IT AUTHORIZES A PROPOSED FINANCING

  TRANSACTION INVOLVING THE ISSUANCE OF REVENUE BONDS BENEFITING A

  BAPTIST-CONTROLLED COLLEGE.  THE ACT ESTABLISHES AN EDUCATIONAL

  FACILITIES AUTHORITY TO ASSIST THROUGH THE ISSUANCE OF RE

  VENUE BONDS HIGHER EDUCATIONAL INSTITUTIONS IN CONSTRUCTING AND

  FINANCING PROJECTS, SUCH AS BUILDINGS, FACILITIES, AND SITE

  PREPARATION, BUT NOT INCLUDING ANY FACILITY FOR SECTARIAN

INSTRUCTION OR RELIGIOUS WORSHIP.  NEITHER THE STATE NOR THE

  AUTHORITY IS OBLIGATED, DIRECTLY OR INDIRECTLY, TO PAY THE

  PRINCIPAL OF OR INTEREST ON THE BONDS; NOR IS THE STATE'S TAXING

  POWER PLEDGED OR IMPLICATED.  ALL EXPENSES OF THE AUTHORITY ALSO

  MUST BE PAID SOLELY FROM THE REVENUES OF THE PROJECTS.  THE

  AUTHORITY GAVE PRELIMINARY APPROVAL TO AN APPLICATION SUBMITTED

  BY THE COLLEGE, ONLY 60% OF WHOSE STUDENTS ARE BAPTISTS.  AS

  SUBSEQUENTLY MODIFIED, THE APPLICATION REQUESTS THE ISSUANCE OF

  REVENUE BONDS TO BE USED FOR REFINANCING CAPITAL IMPROVEMEN AND

  COMPLETING THE DINING HALL.  UNDER THE STATUTORY SCHEME THE

PROJECT WOULD BE CONVEYED TO THE AUTHORITY, WHICH WOULD LEASE IT

  BACK TO THE COLLEGE, WITH RECONVEYANCE TO THE COLLEGE ON FULL

  PAYMENT OF THE BONDS.  THE LEASE AGREEMENT WOULD CONTAIN A CLAUSE

  OBLIGATING THE INSTITUTION TO OBSERVE THE ACT'S RESTRICTIONS ON

  SECTARIAN USE AND ENABLING THE AUTHORITY TO CONDUCT INSPECTIONS. 

  THE PROVISION FOR RECONVEYANCE WOULD RESTRICT THE PROJECT TO

  NONSECTARIAN USE.  THE TRIAL COURT DENIED APPELLANT RELIEF, AND

  THE STATE SUPREME COURT AFFIRMED.  AFTER THIS COURT HAD VACATED

THE JUDGMENT AND REMANDED THE CASE FOR RECONSIDERATION IN THE

  LIGHT OF LEMON V. KURTZMAN, 403 U. S. 602, AND OTHER INTERVENING

  DECISIONS, THE STATE SUPREME COURT ADHERED TO ITS EARLIER

  DECISION.  HELD:  THE ACT AS CONSTRUED BY THE SOUTH CAROLINA

  SUPREME COURT DOES NOT, UNDER THE GUIDELINES OF LEMON V.

  KURTZMAN, SUPRA, AT 612 - 613, VIOLATE THE ESTABLISHMENT CLAUSE. 

  PP. 741 - 749. 

     (A) THE PURPOSE OF THE ACT IS SECULAR, THE BENEFITS OF THE

STATUTE BEING AVAILABLE TO ALL INSTITUTIONS OF HIGHER EDUCATION

  IN THE STATE, WHETHER OR NOT THEY HAVE A RELIGIOUS AFFILIATION. 

  PP. 741 - 742. 

     (B) THE STATUTE DOES NOT HAVE THE PRIMARY EFFECT OF ADVANCING

  OR INHIBITING RELIGION.  THE COLLEGE INVOLVED HAS NO SIGNIFICANT

  SECTARIAN ORIENTATION AND THE PROJECT MUST BE CONFINED TO A

  SECULAR PURPOSE, WITH THE LEASE AGREEMENT, ENFORCED BY INSPECTION

  PROVISIONS, FORBIDING RELIGIOUS USE.  PP. 742 - 745. 

     (C) THE STATUTE DOES NOT FOSTER AN EXCESSIVE ENTANGLEMENT WITH

  RELIGION.  THE RECORD HERE DOES NOT SHOW THAT RELIGION SO

  PERMEATES THE COLLEGE THAT INSPECTION BY THE AUTHORITY TO INSURE

  THAT THE PROJECT IS NOT USED FOR RELIGIOUS PURPOSES WOULD

  NECESSARILY LEAD TO SUCH ENTANGLEMENT.  THE AUTHORITY'S STATUTORY

  POWER TO PARTICIPATE IN CERTAIN MANAGEMENT DECISIONS ALSO DOES

  NOT HAVE THAT EFFECT, IN VIEW OF THE NARROW CONSTRUCTION BY THE

  STATE SUPREME COURT, LIMITING SUCH POWER TO INSURING THAT THE

  COLLEGE^S FEES SUFFICE TO MEET BOND PAYMENTS.  ABSENT DEFAULT,

  THE LEASE AGREEMENT WOULD LEAVE FULL RESPONSIBILITY WITH THE

  COLLEGE REGARDING FEES AND GENERAL OPERATIONS.  PP. 745 - 749. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED BRENNAN,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ.,
JOINED, POST, P. 749. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

APPELLANT, A SOUTH CAROLINA TAXPAYER, BROUGHT THIS ACTION TO CHALLENGE
THE SOUTH CAROLINA EDUCATIONAL FACILITIES AUTHORITY ACT (THE ACT), S.
C. CODE ANN. ^ 22 - 41 ET SEQ. (SUPP. 1971), AS VIOLATIVE OF THE
ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT INSOFAR AS IT AUTHORIZES A
PROPOSED FINANCING TRANSACTION INVOLVING THE ISSUANCE OF REVENUE BONDS
FOR THE BENEFIT OF THE BAPTIST COLLEGE AT CHARLESTON (THE COLLEGE). 
/1/  THE TRIAL COURT'S DENIAL OF RELIEF WAS AFFIRMED BY THE SUPREME
COURT OF SOUTH CAROLINA.  255 S. C. 71, 177 S. E. 2D 362 (1970).  THIS
COURT VACATED THE JUDGMENT AND REMANDED THE CASE FOR RECONSIDERATION IN
LIGHT OF THE INTERVENING DECISIONS IN LEMON V. KURTZMAN, EARLEY V. DI
CENSO, AND ROBINSON V. DI CENSO, 403 U. S. 602 (1971); AND TILTON V.
RICHARDSON, 403 U. S. 672 (1971).  403 U. S. 945 (1971).  ON REMAND,
THE SUPREME COURT OF SOUTH CAROLINA ADHERED TO ITS EARLIER POSITION. 
258 S. C. 97, 187 S. E. 2D 645 (1972).  WE AFFIRM. 

        I 

WE BEGIN BY SETTING OUT THE GENERAL STRUCTURE OF THE ACT.  THE ACT
ESTABLISHED AN EDUCATIONAL FACILITIES AUTHORITY (THE AUTHORITY), THE
PURPOSE OF WHICH IS "TO ASSIST INSTITUTIONS FOR HIGHER EDUCATION IN THE
CONSTRUCTION, FINANCING AND REFINANCING OF PROJECTS . . . ," S. C. CODE
ANN. ^ 22 - 41.4 (SUPP. 1971), PRIMARILY THROUGH THE ISSUANCE OF
REVENUE BONDS.  UNDER THE TERMS OF THE ACT, A PROJECT MAY ENCOMPASS
BUILDINGS, FACILITIES, SITE PREPARATION, AND RELATED ITEMS, BUT MAY NOT
INCLUDE 

"ANY FACILITY USED OR TO BE USED FOR SECTARIAN INSTRUCTION OR AS A
PLACE OF RELIGIOUS WORSHIP NOR ANY FACILITY WHICH IS USED PRIMARILY IN
CONNECTION WITH ANY PART OF THE PROGRAM OF A SCHOOL OR DEPARTMENT OF
DIVINITY FOR ANY RELIGIOUS DENOMINATION."  S. C. CODE ANN. ^ 22 - 41.2
(B) (SUPP. 1971). 

CORRESPONDINGLY, THE AUTHORITY IS ACCORDED CERTAIN POWERS OVER THE
PROJECT, INCLUDING THE POWERS TO DETERMINE THE FEES TO BE CHARGED FOR
THE USE OF THE PROJECT AND TO ESTABLISH REGULATIONS FOR ITS USE.  SEE
INFRA, AT 747 - 749. 

WHILE REVENUE BONDS TO BE USED IN CONNECTION WITH A PROJECT ARE
ISSUED BY THE AUTHORITY, THE ACT IS QUITE EXPLICIT THAT THE BONDS SHALL
NOT BE OBLIGATIONS OF THE STATE, DIRECTLY OR INDIRECTLY: 

    "REVENUE BONDS ISSUED UNDER THE PROVISIONS OF THIS CHAPTER

  SHALL NOT BE DEEMED TO CONSTITUTE A DEBT OR LIABILITY OF THE

  STATE OR OF ANY POLITICAL SUBDIVISION THEREOF OR A PLEDGE OF THE

  FAITH AND CREDIT OF THE STATE OR OF ANY SUCH POLITICAL

  SUBDIVISION, BUT SHALL BE PAYABLE SOLELY FROM THE FUNDS HEREIN

  PROVIDED THEREFOR FROM REVENUES.  ALL SUCH REVENUE BONDS SHALL

  CONTAIN ON THE FACE THEREOF A STATEMENT TO THE EFFECT THAT

  NEITHER THE STATE OF SOUTH CAROLINA NOR THE AUTHORITY SHALL BE

  OBLIGATED TO PAY THE SAME OR THE INTEREST THEREON EXCEPT FROM

  REVENUES OF THE PROJECT OR THE PORTION THEREOF FOR WHICH THEY ARE

ISSUED AND THAT NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER

  OF THE STATE OF SOUTH CAROLINA OR OF ANY POLITICAL SUBDIVISION

  THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE

  INTEREST ON SUCH BONDS.  THE ISSUANCE OF REVENUE BONDS UNDER THE

  PROVISIONS OF THIS CHAPTER SHALL NOT DIRECTLY OR INDIRECTLY OR

  CONTINGENTLY OBLIGATE THE STATE OR ANY POLITICAL SUBDIVISION

  THEREOF TO LEVY OR TO PLEDGE ANY FORM OF TAXATION WHATEVER

  THEREFOR OR TO MAKE ANY APPROPRIATION FOR THEIR PAYMENT."  S. C.

  CODE ANN. ^ 22 - 41.10 (SUPP. 1971). 

MOREOVER, SINCE ALL OF THE EXPENSES OF THE AUTHORITY MUST BE PAID
FROM THE REVENUES OF THE VARIOUS PROJECTS IN WHICH IT PARTICIPATES, S.
C. CODE ANN. ^ 22 - 41.5 (SUPP. 1971), NONE OF THE GENERAL REVENUES OF
SOUTH CAROLINA IS USED TO SUPPORT A PROJECT. 

ON JANUARY 6, 1970, THE COLLEGE SUBMITTED TO THE AUTHORITY FOR
PRELIMINARY APPROVAL AN APPLICATION FOR THE ISSUANCE OF REVENUE BONDS. 
UNDER THE PROPOSAL, THE AUTHORITY WOULD ISSUE THE BONDS AND MAKE THE
PROCEEDS AVAILABLE TO THE COLLEGE FOR USE IN CONNECTION WITH A PORTION
OF ITS CAMPUS TO BE DESIGNATED A PROJECT (THE PROJECT) WITHIN THE
MEANING OF THE ACT.  IN RETURN, THE COLLEGE WOULD CONVEY THE PROJECT,
WITHOUT COST, TO THE AUTHORITY, WHICH WOULD THEN LEASE THE PROPERTY SO
CONVEYED BACK TO THE COLLEGE.  AFTER PAYMENT IN FULL OF THE BONDS, THE
PROJECT WOULD BE RECONVEYED TO THE COLLEGE.  THE AUTHORITY GRANTED
PRELIMINARY APPROVAL ON JANUARY 16, 1970, 255 S. C., AT 76, 177 S. E.
2D, AT 365. 

IN ITS PRESENT FORM, THE APPLICATION REQUESTS THE ISSUANCE OF
REVENUE BONDS TOTALING $1,250,000, OF WHICH $1,050,000 WOULD BE APPLIED
TO REFUND SHORT-TERM FINANCING OF CAPITAL IMPROVEMENTS AND $200,000
WOULD BE APPLIED TO THE COMPLETION OF DINING HALL FACILITIES.  /2/  THE
ADVANTAGE OF FINANCING EDUCATIONAL INSTITUTIONS THROUGH A STATE-CREATED
AUTHORITY DERIVES FROM RELEVANT PROVISIONS OF FEDERAL AND SOUTH
CAROLINA STATE INCOME TAX LAWS WHICH PROVIDE IN EFFECT THAT THE
INTEREST ON SUCH BONDS IS NOT SUBJECT TO INCOME TAXATION.  /3/  THE
INCOME-TAX-EXEMPT STATUS OF THE INTEREST ENABLES THE AUTHORITY, AS AN
INSTRUMENTALITY OF THE STATE, TO MARKET THE BONDS AT A SIGNIFICANTLY
LOWER RATE OF INTEREST THAN THE EDUCATIONAL INSTITUTION WOULD BE FORCED
TO PAY IF IT BORROWED THE MONEY BY CONVENTIONAL PRIVATE FINANCING. 

BECAUSE THE COLLEGE'S APPLICATION TO THE AUTHORITY WAS A PRELIMINARY
ONE, THE DETAILS OF THE FINANCING ARRANGEMENT HAVE NOT YET BEEN FULLY
WORKED OUT.  BUT RULES AND REGULATIONS ADOPTED BY THE AUTHORITY GOVERN
CERTAIN OF ITS ASPECTS.  SEE JURISDICTIONAL STATEMENT, APPENDIX C, PP.
47 - 51.  EVERY LEASE AGREEMENT BETWEEN THE AUTHORITY AND AN
INSTITUTION MUST CONTAIN A CLAUSE 

"OBLIGATING THE INSTITUTION THAT NEITHER THE LEASED LAND, NOR THE
FACILITY LOCATED THEREON, SHALL BE USED FOR SECTARIAN INSTRUCTION OR AS
A PLACE OF RELIGIOUS WORSHIP, OR IN CONNECTION WITH ANY PART OF THE
PROGRAM OF A SCHOOL OR DEPARTMENT OF DIVINITY OF ANY RELIGIOUS
DENOMINATION."  258 S. C., AT 101, 187 S. E. 2D, AT 647. 

TO INSURE THAT THIS COVENANT IS HONORED, EACH LEASE AGREEMENT MUST
ALLOW THE AUTHORITY TO CONDUCT INSPECTIONS, AND ANY RECONVEYANCE TO THE
COLLEGE MUST CONTAIN A RESTRICTION AGAINST USE FOR SECTARIAN PURPOSES. 
/4/  THE RULES FURTHER PROVIDE THE SIMULTANEOUSLY WITH THE EXECUTION OF
THE LEASE AGREEMENT, THE AUTHORITY AND THE TRUSTEE BANK WOULD ENTER
INTO A TRUST INDENTURE WHICH WOULD CREATE, FOR THE BENEFIT OF THE
BONDHOLDERS, A FORECLOSABLE MORTGAGE LIEN ON THE PROJECT PROPERTY
INCLUDING A MORTGAGE ON THE "RIGHT, TITLE AND INTEREST OF THE AUTHORITY
IN AND TO THE LEASE AGREEMENT."  JURISDICTIONAL STATEMENT, APPENDIX C,
P. 50. 

OUR CONSIDERATION OF APPELLANT'S ESTABLISHMENT CLAUSE CLAIM EXTENDS
ONLY TO THE PROPOSAL AS APPROVED PRELIMINARILY WITH SUCH ADDITIONS AS
ARE CONTEMPLATED BY THE ACT, THE RULES, AND THE DECISIONS OF THE COURTS
BELOW. 

 II 

AS WE REAFFIRM TODAY IN COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS
LIBERTY V. NYQUIST, POST, P. 756, THE PRINCIPLES WHICH GOVERN OUR
CONSIDERATION OF CHALLENGES TO STATUTES AS VIOLATIVE OF THE
ESTABLISHMENT CLAUSE ARE THREE. 

"FIRST, THE STATUTE MUST HAVE A SECULAR LEGISLATIVE PURPOSE; SECOND,
ITS PRINCIPAL OR PRIMARY EFFECT MUST BE ONE THAT NEITHER ADVANCES NOR
INHIBITS RELIGION, . . .; FINALLY, THE STATUTE MUST NOT FOSTER 'AN
EXCESSIVE GOVERNMENT ENTANGLEMENT WITH RELIGION.'  "  LEMON V.
KURTZMAN, 403 U. S., AT 612 - 613. 

WITH FULL RECOGNITION THAT THESE ARE NO MORE THAN HELPFUL SIGNPOSTS,
WE CONSIDER THE PRESENT STATUTE AND THE PROPOSED TRANSACTION IN TERMS
OF THE THREE "TESTS":  PURPOSE, EFFECT, AND ENTANGLEMENT. 

   A 

THE PURPOSE OF THE STATUTE IS MANIFESTLY A SECULAR ONE.  THE
BENEFITS OF THE ACT ARE AVAILABLE TO ALL INSTITUTIONS OF HIGHER
EDUCATION IN SOUTH CAROLINA, WHETHER OR NOT HAVING A RELIGIOUS
AFFILIATION.  WHILE A LEGISLATURE'S DECLARATION OF PURPOSE MAY NOT
ALWAYS BE A FAIR GUIDE TO ITS TRUE INTENT, APPELLANT MAKES NO
SUGGESTION THAT THE INTRODUCTORY PARAGRAPH OF THE ACT REPRESENTS
ANYTHING OTHER THAN A GOOD-FAITH STATEMENT OF PURPOSE: 

     "IT IS HEREBY DECLARED THAT FOR THE BENEFIT OF THE PEOPLE OF

  THE STATE, THE INCREASE OF THEIR COMMERCE, WELFARE AND PROSPERITY

  AND THE IMPROVEMENT OF THEIR HEALTH AND LIVING CONDITIONS IT IS

  ESSENTIAL THAT THIS AND FUTURE GENERATIONS OF YOUTH BE GIVEN THE

  FULLEST OPPORTUNITY TO LEARN AND TO DEVELOP THEIR INTELLECTUAL

  AND MENTAL CAPACITIES; THAT IT IS ESSENTIAL THAT INSTITUTIONS FOR

  HIGHER EDUCATION WITHIN THE STATE BE PROVIDED WITH APPROPRIATE

  ADDITIONAL MEANS TO ASSIST SUCH YOUTH IN ACHIEVING THE REQUIRED

  LEVELS OF LEARNING AND DEVELOPMENT OF THEIR INTELLECTUAL AND

  MENTAL CAPACITIES; AND THAT IT IS THE PURPOSE OF THIS CHAPTER TO

  PROVIDE A MEASURE OF ASSISTANCE AND AN ALTERNATIVE METHOD TO

  ENABLE INSTITUTIONS FOR HIGHER EDUCATION IN THE STATE TO PROVIDE

  THE FACILITIES AND STRUCTURES WHICH ARE SORELY NEEDED TO

  ACCOMPLISH THE PURPOSES OF THIS CHAPTER, ALL TO THE PUBLIC

  BENEFIT AND GOOD, TO THE EXTENT AND MANNER PROVIDED HEREIN." 

THE COLLEGE AND OTHER PRIVATE INSTITUTIONS OF HIGHER EDUCATION
PROVIDE THESE BENEFITS TO THE STATE.  /5/  AS OF THE ACADEMIC YEAR 1969
- 1970, THERE WERE 1,548 STUDENTS ENROLLED IN THE COLLEGE, IN ADDITION
TO APPROXIMATELY 600 NIGHT STUDENTS.  OF THESE STUDENTS, 95% ARE
RESIDENTS OF SOUTH CAROLINA WHO ARE THEREBY RECEIVING A COLLEGE
EDUCATION WITHOUT FINANCIAL SUPPORT FROM THE STATE OF SOUTH CAROLINA. 

        B 

TO IDENTIFY "PRIMARY EFFECT," WE NARROW OUR FOCUS FROM THE STATUTE
AS A WHOLE TO THE ONLY TRANSACTION PRESENTLY BEFORE US.  WHATEVER MAY
BE ITS INITIAL APPEAL, THE PROPOSITION THAT THE ESTABLISHMENT CLAUSE
PROHIBITS ANY PROGRAM WHICH IN SOME MANNER AIDS AN INSTITUTION WITH A
RELIGIOUS AFFILIATION HAS CONSISTENTLY BEEN REJECTED.  E. G., BRADFIELD
V. ROBERTS, 175 U. S. 291 (1899); WALZ V. TAX COMM'N 397 U. S. 664
(1970); TILTON V. RICHARDSON, 403 U. S. 672 (1971).  STATED ANOTHER
WAY, THE COURT HAS NOT ACCEPTED THE RECURRENT ARGUMENT THAT ALL AID IS
FORBIDDEN BECAUSE AID TO ONE ASPECT OF AN INSTITUTION FREES IT TO SPEND
ITS OTHER RESOURCES ON RELIGIOUS ENDS. 

AID NORMALLY MAY BE THOUGHT TO HAVE A PRIMARY EFFECT OF ADVANCING
RELIGION WHEN IT FLOWS TO AN INSTITUTION IN WHICH RELIGION IS SO
PERVASIVE THAT A SUBSTANTIAL PORTION OF ITS FUNCTIONS ARE SUBSUMED IN
THE RELIGIOUS MISSION OR WHEN IT FUNDS A SPECIFICALLY RELIGIOUS
ACTIVITY IN AN OTHERWISE SUBSTANTIALLY SECULAR SETTING.  IN TILTON V.
RICHARDSON, SUPRA, THE COURT REFUSED TO STRIKE DOWN A DIRECT FEDERAL
GRANT TO FOUR COLLEGES AND UNIVERSITIES IN CONNECTICUT.  MR. CHIEF
JUSTICE BURGER, FOR THE PLURALITY, CONCLUDED THAT DESPITE SOME
INSTITUTIONAL RHETORIC, NONE OF THE FOUR COLLEGES WAS PERVASIVELY

  INDIVIDUAL PROJECTS CAN BE PROPERLY EVALUATED IF AND WHEN
CHALLENGES ARISE WITH RESPECT TO

  PARTICULAR RECIPIENTS AND SOME EVIDENCE IS THEN PRESENTED TO SHOW
THAT THE INSTITUTION DOES IN

FACT POSSESS THESE CHARACTERISTICS."  403 U. S., AT 682. 

APPELLANT HAS INTRODUCED NO EVIDENCE IN THE PRESENT CASE PLACING THE
COLLEGE IN SUCH A CATEGORY.  IT IS TRUE THAT THE MEMBERS OF THE COLLEGE
BOARD OF TRUSTEES ARE ELECTED BY THE SOUTH CAROLINA BAPTIST CONVENTION,
THAT THE APPROVAL OF THE CONVENTION IS REQUIRED FOR CERTAIN FINANCIAL
TRANSACTIONS, AND THAT THE CHARTER OF THE COLLEGE MAY BE AMENDED ONLY
BY THE CONVENTION.  BUT IT WAS LIKEWISE TRUE OF THE INSTITUTIONS
INVOLVED IN TILTON THAT THEY WERE "GOVERNED BY CATHOLIC RELIGIOUS
ORGANIZATIONS."  ID., AT 686.  WHAT LITTLE THERE IS IN THE RECORD
CONCERNING THE COLLEGE ESTABLISHES THAT THERE ARE NO RELIGIOUS
QUALIFICATIONS FOR FACULTY MEMBERSHIP OR STUDENT ADMISSION, AND THAT
ONLY 60% OF THE COLLEGE STUDENT BODY IS BAPTIST, A PERCENTAGE ROUGHLY
EQUIVALENT TO THE PERCENTAGE OF BAPTISTS IN THAT AREA OF SOUTH
CAROLINA.  255 S. C., AT 85, 177 S. E. 2D, AT 369.  ON THE RECORD IN
THIS CASE THERE IS NO BASIS TO CONCLUDE THAT THE COLLEGE'S OPERATIONS
ARE ORIENTED SIGNIFICANTLY TOWARDS SECTARIAN RATHER THAN SECULAR
EDUCATION. 

NOR CAN WE CONCLUDE THAT THE PROPOSED TRANSACTION WILL PLACE THE
AUTHORITY IN THE POSITION OF PROVIDING AID TO THE RELIGIOUS AS OPPOSED
TO THE SECULAR ACTIVITIES OF THE COLLEGE.  THE SCOPE OF THE AUTHORITY'S
POWER TO ASSIST INSTITUTIONS OF HIGHER EDUCATION EXTENDS ONLY TO
"PROJECTS," AND THE ACT SPECIFICALLY STATES THAT A PROJECT "SHALL NOT
INCLUDE" ANY BUILDINGS OR FACILITIES USED FOR RELIGIOUS PURPOSES.  IN
THE ABSENCE OF EVIDENCE TO THE CONTRARY, WE MUST ASSUME THAT ALL OF THE
PROPOSED FINANCING AND REFINANCING RELATES TO BUILDINGS AND FACILITIES
WITHIN A PROPERLY DELIMITED PROJECT.  IT IS NOT AT ALL CLEAR FROM THE
RECORD THAT THE PORTION OF THE CAMPUS TO BE CONVEYED BY THE COLLEGE TO
THE AUTHORITY AND LEASED BACK IS THE SAME AS THAT BEING FINANCED, BUT
IN ANY EVENT IT TOO MUST BE PART OF THE PROJECT AND SUBJECT TO THE SAME
PROHIBITION AGAINST USE FOR RELIGIOUS PURPOSES.  IN ADDITION, AS WE
HAVE INDICATED, EVERY LEASE AGREEMENT MUST CONTAIN A CLAUSE FORBIDDING
RELIGIOUS USE AND ANOTHER ALLOWING INSPECTIONS TO ENFORCE THE
AGREEMENT.  /6/  FOR THESE REASONS, WE ARE SATISFIED THAT
IMPLEMENTATION OF THE PROPOSAL WILL NOT HAVE THE PRIMARY EFFECT OF
ADVANCING OR INHIBITING RELIGION.  /7/             C 

THE FINAL QUESTION POSED BY THIS CASE IS WHETHER UNDER THE
ARRANGEMENT THERE WOULD BE AN UNCONSTITUTIONAL DEGREE OF ENTANGLEMENT
BETWEEN THE STATE AND THE COLLEGE.  APPELLANT ARGUES THAT THE AUTHORITY
WOULD BECOME INVOLVED IN THE OPERATION OF THE COLLEGE BOTH BY
INSPECTING THE PROJECT TO INSURE THAT IT IS NOT BEING USED FOR
RELIGIOUS PURPOSES AND BY PARTICIPATING IN THE MANAGEMENT DECISIONS OF
THE COLLEGE.     THE COURT'S OPINION IN LEMON AND THE PLURALITY OPINION
IN TILTON ARE GROUNDED ON THE PROPOSITION THAT THE DEGREE OF
ENTANGLEMENT ARISING FROM INSPECTION OF FACILITIES AS TO USE VARIES IN
LARGE MEASURE WITH THE EXTENT TO WHICH RELIGION PERMEATES THE
INSTITUTION.  IN FINDING EXCESSIVE ENTANGLEMENT, THE COURT IN LEMON
RELIED ON THE "SUBSTANTIAL RELIGIOUS CHARACTER OF THESE CHURCH-RELATED"
ELEMENTARY SCHOOLS.  403 U. S., AT 616.  MR. CHIEF JUSTICE BURGER'S
OPINION FOR THE PLURALITY IN TILTON PLACED CONSIDERABLE EMPHASIS ON THE
FACT THAT THE FEDERAL AID THERE APPROVED WOULD BE SPENT IN A COLLEGE
SETTING: 

     "SINCE RELIGIOUS INDOCTRINATION IS NOT A SUBSTANTIAL PURPOSE
OR

  ACTIVITY OF THESE CHURCH-RELATED COLLEGES AND UNIVERSITIES, THERE

  IS LESS LIKELIHOOD THAN IN PRIMARY AND SECONDARY SCHOOLS THAT

 RELIGION WILL PERMEATE THE AREA OF SECULAR EDUCATION."  403 U.

  S., AT 687. 

ALTHOUGH MR. JUSTICE WHITE SAW NO SUCH CLEAR DISTINCTION, HE
CONCURRED IN THE JUDGMENT, STATING: 

     "IT IS ENOUGH FOR ME THAT . . . THE FEDERAL GOVERNMENT (IS)

  FINANCING A SEPARABLE SECULAR FUNCTION OF OVERRIDING IMPORTANCE

  IN ORDER TO SUSTAIN THE LEGISLATION HERE CHALLENGED."  403 U. S.,

  AT 664. 

A MAJORITY OF THE COURT IN TILTON, THEN, CONCLUDED THAT ON THE FACTS
OF THAT CASE INSPECTION AS TO USE DID NOT THREATEN EXCESSIVE
ENTANGLEMENT.  AS WE HAVE INDICATED ABOVE, THERE IS NO EVIDENCE HERE TO
DEMONSTRATE THAT THE COLLEGE IS ANY MORE AN INSTRUMENT OF RELIGIOUS
INDOCTRINATION THAN WERE THE COLLEGES AND UNIVERSITIES INVOLVED IN
TILTON.  /8/ 

A CLOSER ISSUE UNDER OUR PRECEDENTS IS PRESENTED BY THE CONTENTION
THAT THE AUTHORITY COULD BECOME DEEPLY INVOLVED IN THE DAY-TO-DAY
FINANCIAL AND POLICY DECISIONS OF THE COLLEGE.  THE AUTHORITY IS
EMPOWERED BY THE ACT: 

"(G) (GENERALLY, TO FIX AND REVISE FROM TIME TO TIME AND CHARGE

  AND COLLECT RATES, RENTS, FEES AND CHARGES FOR THE USE OF AND FOR

  THE SERVICES FURNISHED OR TO BE FURNISHED BY A PROJECT OR ANY

  PORTION THEREOF AND TO CONTRACT WITH ANY PERSON, PARTNERSHIP,

  ASSOCIATION OR CORPORATION OR OTHER BODY PUBLIC OR PRIVATE IN

  RESPECT THEREOF;

10)"(H) (TO ESTABLISH RULES AND REGULATIONS FOR THE USE OF

  A PROJECT OR ANY PORTION THEREOF AND TO DESIGNATE A PARTICIPATING
INSTITUTION FOR HIGHER

  EDUCATION . . . ."  S. C. CODE ANN. ^ 22 - 41.4 (SUPP. 1971). 

THESE POWERS ARE SWEEPING ONES, AND WERE THERE A REALISTIC
LIKELIHOOD THAT THEY WOULD BE EXERCISED IN THEIR FULL DETAIL, THE
ENTANGLEMENT PROBLEMS WITH THE PROPOSED TRANSACTION WOULD NOT BE
INSIGNIFICANT. 

AS THE SOUTH CAROLINA SUPREME COURT POINTED OUT, THE ACT WAS
PATTERNED CLOSELY AFTER THE SOUTH CAROLINA INDUSTRIAL REVENUE BOND ACT,
258 S. C., AT 107, 187 S. E. 2D, AT 651, AND PERHAPS FOR THIS REASON
APPEARS TO CONFER UNNECESSARILY BROAD POWER AND RESPONSIBILITY ON THE
AUTHORITY.  THE OPINION OF THAT COURT, HOWEVER, REFLECTS A NARROW
INTERPRETATION OF THE PRACTICAL OPERATION OF THESE POWERS. 

     "COUNSEL FOR PLAINTIFF ARGUES THAT THE BROAD LANGUAGE OF THE

  ACT CAUSES THE STATE, OF NECESSITY, TO BECOME EXCESSIVELY

  INVOLVED IN THE OPERATION, MANAGEMENT AND ADMINISTRATION OF THE

  COLLEGE.  WE DO NOT SO CONSTRUE THE ACT.  . . . (THE BASIC

  FUNCTION OF THE AUTHORITY IS TO SEE . . . THAT FEES ARE CHARGED

  SUFFICIENT TO MEET THE BOND PAYMENTS."  258 S. C., AT 108, 187 S.

  E. 2D, AT 651. 

AS WE READ THE COLLEGE'S PROPOSAL, THE LEASE AGREEMENT BETWEEN THE
AUTHORITY AND THE COLLEGE WILL PLACE ON THE COLLEGE THE RESPONSIBILITY
FOR MAKING THE DETAILED DECISIONS REGARDING THE GOVERNMENT OF THE
CAMPUS AND THE FEES TO BE CHARGED FOR PARTICULAR SERVICES. 
SPECIFICALLY, THE PROPOSAL STATES THAT THE LEASE AGREEMENT

  WILL UNCONDITIONALLY OBLIGATE THE COLLEGE (A) TO PAY SUFFICIENT
RENTALS TO MEET THE PRINCIPAL

  AND INTEREST REQUIREMENTS AS THEY BECOME DUE ON SUCH BONDS, (AND)
(B) TO IMPOSE AN ADEQUATE

  SCHEDULE OF CHARGES AND FEES IN ORDER TO PROVIDE ADEQUATE
REVENUES WITH WHICH TO OPERATE AND

  MAINTAIN THE SAID FACILITIES AND TO MAKE THE RENTAL PAYMENTS . .
. ."  APP. 18. 

IN SHORT, UNDER THE PROPOSED LEASE AGREEMENT, NEITHER THE AUTHORITY
NOR A TRUSTEE BANK WOULD BE JUSTIFIED IN TAKING ACTION UNLESS THE
COLLEGE FAILS TO MAKE THE PRESCRIBED RENTAL PAYMENTS OR OTHERWISE
DEFAULTS IN ITS OBLIGATIONS.  ONLY IF THE COLLEGE REFUSED TO MEET
RENTAL PAYMENTS OR WAS UNABLE TO DO SO WOULD THE AUTHORITY OR THE
TRUSTEE BE OBLIGATED TO TAKE FURTHER ACTION.  IN THAT EVENT, THE
AUTHORITY OR TRUSTEE MIGHT EITHER FORECLOSE ON THE MORTGAGE OR TAKE A
HAND IN THE SETTING OF RULES, CHARGES, AND FEES.  IT MAY BE ARGUED THAT
ONLY THE FORMER WOULD BE CONSISTENT WITH THE ESTABLISHMENT CLAUSE, BUT
WE DO NOT NOW HAVE THAT SITUATION BEFORE US.

        III 

THIS CASE COMES TO US AS AN ACTION FOR INJUNCTIVE AND DECLARATORY
RELIEF TO TEST THE CONSTITUTIONALITY OF THE ACT AS APPLIED TO A
PROPOSED--RATHER THAN AN ACTUAL--ISSUANCE OF REVENUE BONDS.  THE
SPECIFIC PROVISIONS OF THE ACT UNDER WHICH THE BONDS WILL BE ISSUED,
THE RULES AND REGULATIONS OF THE AUTHORITY, AND THE COLLEGE'S PROPOSAL-
ALL AS INTERPRETED BY THE SOUTH CAROLINA SUPREME COURT--CONFINE THE
SCOPE OF THE ASSISTANCE TO THE SECULAR ASPECTS OF THIS LIBERAL ARTS
COLLEGE AND DO NOT FORESHADOW EXCESSIVE ENTANGLEMENT BETWEEN THE STATE
AND RELIGION.  ACCORDINGLY, WE AFFIRM THE HOLDING OF THE COURT BELOW
THAT THE ACT IS CONSTITUTIONAL AS INTERPRETED AND APPLIED IN THIS
CASE. 

              AFFIRMED. 

/1/  AT VARIOUS POINTS DURING THIS LITIGATION, APPELLANT HAS MADE
REFERENCE TO THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT, BUT HAS
MADE NO ARGUMENTS SPECIFICALLY ADDRESSED TO VIOLATIONS OF THAT CLAUSE
EXCEPT INSOFAR AS THIS COURT'S APPROACH TO CASES INVOLVING THE RELIGION
CLAUSES REPRESENTS AN INTERACTION OF THE TWO CLAUSES. 

/2/  AS ORIGINALLY SUBMITTED BY THE COLLEGE AND APPROVED BY THE
AUTHORITY, THE PROPOSAL CALLED FOR THE ISSUANCE OF "NOT EXCEEDING
$3,500,000 OF REVENUE BONDS . . . ."  255 S. C. 71, 75, 177 S. E. 2D
362, 364.  AS INDICATED BY A STIPULATION OF COUNSEL IN THIS COURT, THE
COLLEGE SUBSEQUENTLY SECURED A BANK LOAN IN THE AMOUNT OF $2,500,000
AND NOW PROPOSES THE ISSUANCE OF ONLY $1,250,000 IN REVENUE BONDS UNDER
THE ACT, THE PROCEEDS TO BE USED: "(I) TO REPAY IN FULL THE COLLEGE'S
CURRENT FUND FOR THE BALANCE (APPROXIMATELY $250,000) ADVANCED TO THE
COLLEGE'S PLANT FUND AS AFORESAID; (II) TO REFUND OUTSTANDING SHORT
TERM LOANS IN THE AMOUNT OF $800,000 WHOSE PROCEEDS WERE TO PAY OFF
INDEBTEDNESS INCURRED FOR CAPITAL IMPROVEMENTS, AND (III) TO FINANCE
THE COMPLETION OF THE DINING HALL FACILITIES AT A COST OF APPROXIMATELY
$200,000."  APP. 49.  (EMPHASIS IN ORIGINAL.) 

/3/  GROSS INCOME FOR FEDERAL INCOME TAX PURPOSES DOES NOT INCLUDE
INTEREST ON "THE OBLIGATIONS OF A STATE, A TERRITORY, OR A POSSESSION
FO THE UNITED STATES, OR ANY POLITICAL SUBDIVISION OF ANY OF THE
FOREGOING . . . ."  26 U.S.C. ^ 103 (A)(1).  FOR STATE INCOME TAX
PURPOSES, GROSS INCOME DOES NOT INCLUDE INTEREST "UPON OBLIGATIONS OF
THE UNITED STATES OR ITS POSSESSIONS OR OF THIS STATE OR ANY POLITICAL
SUBDIVISION THEREOF . . . ."  S. C. CODE ANN. ^ 65 - 253 (4) (SUPP.
1971). 

/4/  RULE 4 RELATING TO THE LEASE AGREEMENT PROVIDES IN PART THAT: 

"IF THE LEASE AGREEMENT CONTAINS A PROVISION PERMITTING THE
INSTITUTION TO REPURCHASE THE PROJECT UPON PAYMENT OF THE BONDS, THEN
IN SUCH INSTANCE THE LEASE AGREEMENT SHALL PROVIDE THAT THE DEED OF
RECONVEYANCE FROM THE AUTHORITY TO THE INSTITUTION SHALL BE MADE
SUBJECT TO THE CONDITION THAT SO LONG AS THE INSTITUTION, OR ANY
VOLUNTARY GRANTEE OF THE INSTITUTION, SHALL OWN THE LEASED PREMISES, OR
ANY PART THEREOF, THAT NO FACILITY THEREON, FINANCED IN WHOLE OR IN
PART WITH THE PROCEEDS OF THE BONDS, SHALL BE USED FOR SECTARIAN
INSTRUCTION OR AS A PLACE OF RELIGIOUS WORSHIP, OR USED IN CONNECTION
WITH ANY PART OF THE PROGRAM OF A SCHOOL OR DEPARTMENT OF DIVINITY OF
ANY RELIGIOUS DENOMINATION."  258 S. C. 97, 101 - 102, 187 S. E. 2D
645, 647 - 648. 

THE RULE GOES ON TO ALLOW THE INSTITUTION TO REMOVE THIS OPTION IN
THE CASE OF INVOLUNTARY SALES:

"THE CONDITION MAY PROVIDE, AT THE OPTION OF THE INSTITUTION, THAT
IF THE LEASED PREMISES SHALL BECOME THE SUBJECT OF AN INVOLUNTARY
JUDICIAL SALE, AS A RESULT OF ANY FORECLOSURE OF ANY MORTGAGE, OR SALE
PURSUANT TO ANY ORDER OF ANY COURT, THAT THE TITLE TO BE VESTED IN ANY
PURCHASER AT SUCH JUDICIAL SALE, OTHER THAN THE INSTITUTION, SHALL BE
IN FEE SIMPLE AND SHALL BE FREE OF THE CONDITION APPLICABLE TO THE
INSTITUTION OR ANY VOLUNTARY GRANTEE THEREOF."  258 S. C., AT 102, 187
S. E. 2D, AT 648.  SEE N. 6, INFRA. 

/5/  IN BOARD OF EDUCATION V. ALLEN, 392 U. S. 236 (1968), THIS
COURT COMMENTED ON THE IMPORTANCE OF THE ROLE OF PRIVATE EDUCATION IN
THIS COUNTRY: 

"UNDERLYING THESE CASES, AND UNDERLYING ALSO THE LEGISLATIVE
JUDGMENTS THAT HAVE PRECEDED THE COURT DECISIONS, HAS BEEN A
RECOGNITION THAT PRIVATE EDUCATION HAS PLAYED AND IS PLAYING A
SIGNIFICANT AND VALUABLE ROLE IN RAISING NATIONAL LEVELS OF KNOWLEDGE,
COMPETENCE, AND EXPERIENCE."  ID., AT 247. 

/6/  APPELLANT ALSO TAKES ISSUE WITH THE AUTHORITY'S RULE ALLOWING A
PURCHASER AT AN INVOLUNTARY SALE TO TAKE TITLE FREE OF RESTRICTIONS AS
TO RELIGIOUS USE.  SEE N. 4, ANTE, APPELLANT'S RELIANCE ON TILTON V.
RICHARDSON, 403 U. S. 672 (1971), IN THIS RESPECT IS MISPLACED.  THERE,
THE COURT STRUCK DOWN A PROVISION UNDER WHICH THE CHURCH-RELATED
COLLEGES WOULD HAVE UNRESTRICTED USE OF A FEDERALLY FINANCED PROJECT
AFTER 20 YEARS.  IN THE PRESENT CASE, BY CONTRAST, THE RESTRICTION
AGAINST RELIGIOUS USE IS LIFTED, NOT AS TO THE INSTITUTION SEEKING THE
ASSISTANCE OF THE AUTHORITY NOR AS TO VOLUNTARY TRANSFEREES, BUT ONLY
AS TO A PURCHASER AT A JUDICIAL SALE.  BECAUSE SOME OTHER RELIGIOUS
INSTITUTION BIDDING FOR THE PROPERTY AT A JUDICIAL SALE COULD PURCHASE
THE PROPERTY ONLY BY OUTBIDDING ALL OTHER PROSPECTIVE PURCHASERS, THERE
IS ONLY A SPECULATIVE POSSIBILITY THAT THE ABSENCE OF A USE LIMITATION
WOULD EVER AFFORD AID TO RELIGION.  EVEN IN SUCH AN EVENT, THE
ACQUIRING RELIGIOUS INSTITUTION PRESUMABLY WOULD HAVE HAD TO PAY THE
THEN FAIR VALUE OF THE PROPERTY. 

/7/  THE "STATE AID" INVOLVED IN THIS CASE IS OF A VERY SPECIAL
SORT.  WE HAVE HERE NO EXPENDITURE OF PUBLIC FUNDS, EITHER BY GRANT OR
LOAN, NO REIMBURSEMENT BY A STATE FOR EXPENDITURES MADE BY A PAROCHIAL
SCHOOL OR COLLEGE, AND NO EXTENDING OR COMMITTING OF A STATE'S CREDIT. 
RATHER, THE ONLY STATE AID CONSISTS, NOT OF FINANCIAL ASSISTANCE
DIRECTLY OR INDIRECTLY WHICH WOULD IMPLICATE PUBLIC FUNDS OR CREDIT,
BUT THE CREATION OF AN INSTRUMENTALITY (THE AUTHORITY) THROUGH WHICH
EDUCATIONAL INSTITUTIONS MAY BORROW FUNDS ON THE BASIS OF THEIR OWN
CREDIT AND THE SECURITY OF THEIR OWN PROPERTY UPON MORE FAVORABLE
INTEREST TERMS THAN OTHERWISE WOULD BE AVAILABLE.  THE SUPREME COURT OF
NEW JERSEY CHARACTERIZED THE ASSISTANCE RENDERED AN EDUCATIONAL
INSTITUTION UNDER AN ACT GENERALLY SIMILAR TO THE SOUTH CAROLINA ACT AS
MERELY BEING A "GOVERNMENTAL SERVICE."  CLAYTON V. KERVICK, 56 N. J.
523, 530 - 531, 267 A. 2D OPINION BELOW, DESCRIBED THE ROLE OF THE
STATE AS THAT OF A "MERE CONDUIT."  258 S. C., AT 107, 187 S. E. 2D, AT
650.  BECAUSE WE CONCLUDE THAT THE PRIMARY EFFECT OF THE ASSISTANCE
AFFORDED HERE IS NEITHER TO ADVANCE NOR TO INHIBIT RELIGION UNDER LEMON
AND TILTON, WE NEED NOT DECIDE WHETHER, AS APPELLEES ARGUE, BRIEF FOR
APPELLEES 14, THE IMPORTANCE OF THE TAX EXEMPTION IN THE SOUTH CAROLINA
SCHEME BRINGS THE PRESENT CASE UNDER WALZ V. TAX COMM'N, 397 U. S. 664
(1970), WHERE THIS COURT UPHELD A LOCAL PROPERTY TAX EXEMPTION WHICH
INCLUDED RELIGIOUS INSTITUTIONS. 

/8/  ALTHOUGH THE RECORD IN THIS CASE IS ABBREVIATED AND NOT FREE
FROM AMBIGUITY, THE BURDEN RESTS ON APPELLANT TO SHOW THE EXTENT TO
WHICH THE COLLEGE IS CHURCH-RELATED, CF. BOARD OF EDUCATION V. ALLEN,
392 U. S., AT 248, AND HE HAS FAILED TO SHOW MORE THAN A FORMALISTIC
CHURCH RELATIONSHIP.  AS TILTON ESTABLISHED, FORMAL DENOMINATIONAL
CONTROL OVER A LIBERAL ARTS COLLEGE DOES NOT RENDER ALL AID TO THE
INSTITUTION A VIOLATION OF THE ESTABLISHMENT CLAUSE.  SO FAR AS THE
RECORD HERE IS CONCERNED, THERE IS NO SHOWING THAT THE COLLEGE PLACES
ANY SPECIAL EMPHASIS ON BAPTIST DENOMINATIONAL OR ANY OTHER SECTARIAN
TYPE OF EDUCATION.  AS NOTED ABOVE, BOTH THE FACULTY AND THE STUDENT
BODY ARE OPEN TO PERSONS OF ANY (OR NO) RELIGIOUS AFFILIATION. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER SOUTH CAROLINA'S
ASSISTANCE TO THE BAPTIST COLLEGE AT CHARLESTON UNDER THE SOUTH
CAROLINA EDUCATIONAL FACILITIES AUTHORITY ACT CONSTITUTES
CONSTITUTIONALLY IMPERMISSIBLE AID BY THE STATE FOR THIS SECTARIAN
INSTITUTION.  /1/  THE TEST TO WHICH I ADHERE FOR DETERMINING SUCH
QUESTIONS IS WHETHER THE ARRANGEMENT BETWEEN THE STATE AND THE BAPTIST
COLLEGE IS FORECLOSED UNDER THE ESTABLISHMENT CLAUSE OF THE FIRST
AMENDMENT AS BEING AMONG 

"THOSE INVOLVEMENTS OF RELIGIOUS WITH SECULAR INSTITUTIONS WHICH (A)
SERVE THE ESSENTIALLY RELIGIOUS ACTIVITIES OF RELIGIOUS INSTITUTIONS;
(B) EMPLOY THE ORGANS OF GOVERNMENT FOR ESSENTIALLY RELIGIOUS PURPOSES;
OR (C) USE ESSENTIALLY RELIGIOUS MEANS TO SERVE GOVERNMENTAL ENDS,
WHERE SECULAR MEANS WOULD SUFFICE."  ABINGTON SCHOOL DISTRICT V.
SCHEMPP, 374 U. S. 203, 295 (1963) (BRENNAN, J., CONCURRING); WALZ V.
TAX COMM'N, 397 U. S. 664, 680 - 681 (1970) (BRENNAN, J., CONCURRING);
LEMON V. KURTZMAN, 403 U. S. 602, 643 (1971) (LEMON I) (SEPARATE
OPINION OF BRENNAN, J.).     BECAUSE UNDER THAT TEST IT IS CLEAR TO ME
THAT THE STATE'S PROPOSED SCHEME OF ASSISTANCE TO THE BAPTIST COLLEGE
IS VIOLATIVE OF THE ESTABLISHMENT CLAUSE, I DISSENT. 

THE ACT AUTHORIZES A FINANCING ARRANGEMENT BETWEEN THE AUTHORITY /2/
AND THE BAPTIST COLLEGE AT CHARLESTON, A SOUTH CAROLINA EDUCATIONAL
CORPORATION OPERATED BY THE SOUTH CAROLINA BAPTIST CONVENTION.  UNDER
THAT ARRANGEMENT, THE COLLEGE WOULD CONVEY A SUBSTANTIAL PORTION OF ITS
CAMPUS TO THE AUTHORITY, AND THE AUTHORITY WOULD LEASE BACK THE
PROPERTY TO THE COLLEGE AT AN AGREED RENTAL.  THE AUTHORITY WOULD THEN
ISSUE REVENUE BONDS OF THE STATE OF SOUTH CAROLINA IN THE AMOUNT OF
#3,500,000.00, WHICH BONDS WOULD BE PAYABLE, PRINCIPAL AND INTEREST,
FROM THE RENTS PAID BY THE COLLEGE TO THE AUTHORITY UNDER THE LEASE. 
THE PROCEEDS OF THE SALE OF THE BONDS WOULD BE USED TO PAY OFF
OUTSTANDING INDEBTEDNESS OF THE COLLEGE /3/  AND TO CONSTRUCT
ADDITIONAL BUILDINGS AND FACILITIES FOR USE IN ITS HIGHER EDUCATION
OPERATIONS.  UPON PAYMENT IN FULL OF THE PRINCIPAL AND INTEREST ON THE
BONDS, THE ARRANGEMENT REQUIRES THAT THE AUTHORITY RECONVEY TITLE TO
THE CAMPUS PROPERTIES TO THE COLLEGE FREE AND CLEAR OF ALL LIENS AND
ENCUMBRANCES.  THE ARRANGEMENT DOES NOT, HOWEVER, AMOUNT MERELY TO A
MORTGAGE ON THE CAMPUS PROPERTY.  THE AUTHORITY IS ALSO EMPOWERED,
INTER ALIA, TO DETERMINE THE LOCATION AND CHARACTER OF ANY PROJECT
FINANCED UNDER THE ACT; TO CONSTRUCT, MAINTAIN, MANAGE, OPERATE, LEASE
AS LESSOR OR LESSEE, AND REGULATE THE SAME; TO ENTER INTO CONTRACTS FOR
THE MANAGEMENT AND OPERATION OF SUCH PROJECT; TO ESTABLISH RULES AND
REGULATIONS FOR THE USE OF THE PROJECT OR ANY PORTION THEREOF; AND TO
FIX AND REVISE FROM TIME TO TIME RATES, RENTS, FEES, AND CHARGES FOR
THE USE OF A PROJECT AND FOR THE SERVICES FURNISHED OR TO BE FURNISHED
BY A PROJECT OR ANY PORTION THEREOF.  IN OTHER WORDS, THE COLLEGE TURNS
OVER TO THE STATE AUTHORITY CONTROL OF SUBSTANTIAL PARTS OF THE FISCAL
OPERATION OF THE SCHOOL--ITS VERY LIFE'S BLOOD. 

IT IS TRUE THAT THE ACT EXPRESSLY PROVIDES THAT STATE FINANCING WILL
NOT BE PROVIDED FOR 

"ANY FACILITY USED OR TO BE USED FOR SECTARIAN INSTRUCTION OR AS A
PLACE OF RELIGIOUS WORSHIP NOR ANY FACILITY WHICH IS USED OR TO BE USED
PRIMARILY IN CONNECTION WITH ANY PART OF THE PROGRAM OF A SCHOOL OR
DEPARTMENT OF DEVINITY FOR ANY RELIGIOUS DENOMINATION."  S. C. CODE
ANN. ^ 22 - 41.2 (B) (SUPP. 1971). 

AND IT IS ALSO TRUE THAT THE AUTHORITY, PURSUANT TO GRANTED RULE-M
ING POWER, HAS ADOPTED A RULE REQUIRING THAT EACH LEASE AGREEMENT
CONTAIN A COVENANT 

"OBLIGATING THE INSTITUTION THAT NEITHER THE LEASED LAND, NOR ANY
FACILITY LOCATED THEREON, SHALL BE USED FOR SECTARIAN INSTRUCTION OR AS
A PLACE OF RELIGIOUS WORSHIP, OR IN CONNECTION WITH ANY PART OF THE
PROGRAM OF A SCHOOL OR DEPARTMENT OF DIVINITY OF ANY RELIGIOUS
DENOMINATION."  JURISDICTIONAL STATEMENT 49. 

BUT POLICING BY THE AUTHORITY TO INSURE COMPLIANCE WITH THESE
RESTRICTIONS IS ESTABLISHED BY A PROVISION REQUIRED TO BE INCLUDED IN
THE LEASE AGREEMENT ALLOWING THE AUTHORITY TO CONDUCT ON-SITE
INSPECTIONS OF THE FACILITIES FINANCED UNDER THE ACT. 

THUS, IT IS CRYSTAL CLEAR, I THINK, THAT THIS SCHEME INVOLVES THE
STATE IN A DEGREE OF POLICING OF THE AFFAIRS OF THE COLLEGE FAR
EXCEEDING THAT CALLED FOR BY THE STATUTES STRUCK DOWN IN LEMON I,
SUPRA.  SEE ALSO JOHNSON V. SANDERS, 319 F. SUPP. 421 (CONN. 1970),
AFF'D 403 U. S. 955 (1971).  INDEED, UNDER THIS SCHEME THE POLICING BY
THE STATE CAN BECOME SO EXTENSIVE THAT THE STATE MAY WELL END UP IN
COMPLETE CONTROL OF THE OPERATION OF THE COLLEGE, AT LEAST FOR THE LIFE
OF THE BONDS.  THE COLLEGE'S FREEDOM TO ENGAGE IN RELIGIOUS ACTIVITIES
AND TO OFFER RELIGIOUS INSTRUCTION IS NECESSARILY CIRCUMSCRIBED BY THIS
PERVASIVE STATE INVOLVEMENT FORCED UPON THE COLLEGE IF IT IS NOT TO
LOSE ITS BENEFITS UNDER THE ACT.  FOR IT SEEMS INESCAPABLE THAT THE
CONTENT OF COURSES TAUGHT IN FACILITIES FINANCED UNDER THE AGREEMENT
MUST BE CLOSELY MONITORED BY THE STATE AUTHORITY IN DISCHARGE OF ITS
DUTY TO ENSURE THAT THE FACILITIES ARE NOT BEING USED FOR SECTARIAN
INSTRUCTION.  THE AUTHORITY MUST ALSO INVOLVE ITSELF DEEPLY IN THE
FISCAL AFFAIRS OF THE COLLEGE, EVEN TO THE POINT OF FIXING TUITION
RATES, AS PART OF ITS DUTY TO ASSURE SUFFICIENT REVENUES TO MEET BOND
AND INTEREST OBLIGATIONS.  AND SHOULD THE COLLEGE FIND ITSELF UNABLE TO
MEET THESE OBLIGATIONS, ITS CONTINUED EXISTENCE AS A VIABLE SECTARIAN
INSTITUTION IS ALMOST COMPLETELY IN THE HANDS OF THE STATE AUTHORITY. 
THUS, THIS AGREEMENT, WITH ITS CONSEQUENT STATE SURVEILLANCE AND
ONGOING ADMINISTRATIVE RELATIONSHIPS, INESCAPABLY ENTAILS MUTUALLY
DAMAGING CHURCH-STATE INVOLVEMENTS.  ABINGTON SCHOOL DISTRICT V.
SCHEMPP, 374 U. S., AT 295 (BRENNAN, J., CONCURRING); LEMON I, 403 U.
S., AT 649 (SEPARATE OPINION OF BRENNAN, J.). 

IN SUPPORT OF ITS CONTRARY ARGUMENT, THE COURT ADOPTS MUCH OF THE
REASONING OF THE PLURALITY OPINION IN TILTON V. RICHARDSON, 403 U. S.
672 (1971).  I DISAGREED WITH THAT REASONING IN TILTON BECAUSE, AS IN
THIS CASE, THAT REASONING UTTERLY FAILED TO EXPLAIN HOW PROGRAMS OF
SURVEILLANCE AND INSPECTION OF THE KIND COMMON TO BOTH CASES DIFFER
FROM THE PENNSYLVANIA AND RHODE ISLAND PROGRAMS INVLAIDATED IN LEMON I.
WHAT I SAID IN TILTON IS EQUALLY APPLICABLE TO THE PRESENT CASE:

  I DO NOT SEE ANY SIGNIFICANT DIFFERENCE IN . . . TELLING THE

  ANY NONSECULAR SUBJECTS IN A CERTAIN BUILDING, AND RHODE ISLAND'S
TELLING THE CATHOLIC SCHOOL

  TEACHER (IN LEMONI) NOT TO TEACH RELIGION.  THE VICE IS THE
CREATION THROUGH SUBSIDY OF A

  RELATIONSHIP IN WHICH THE GOVERNMENT POLICES THE TEACHING
PRACTICES OF A RELIGIOUS SCHOOL OR

UNIVERSITY."  403 U. S., AT 660 (SEPARATE OPINION OF BRENNAN, J.). 

IN ANY EVENT, TILTON IS CLEARLY NOT CONTROLLING HERE.  THE PLURALITY
OPINION IN TILTON WAS EXPRESSLY BASED ON THE PREMISE, ERRONEOUS IN MY
VIEW, THAT THE FEDERAL HIGHER EDUCATION FACILITIES ACT CONTAINED NO
SIGNIFICANT INTRUSIONS INTO THE EVERYDAY AFFAIRS OF SECTARIAN
EDUCATIONAL INSTITUTIONS.  THUS, IT WAS SAID IN THE PLURALITY OPINION: 

"(UNLIKE THE DIRECT AND CONTINUING PAYMENTS UNDER THE PENNSYLVANIA
PROGRAM (IN LEMON I), AND ALL THE INCIDENTS OF REGULATION AND
SURVEILLANCE, THE GOVERNMENT AID HERE IS A ONE-TIME, SINGLE PURPOSE
CONSTRUCTION GRANT.  THERE ARE NO CONTINUING FINANCIAL RELATIONSHIPS OR
DEPENDENCIES, NO ANNUAL AUDITS, AND NO GOVERNMENT ANALYSIS OF AN
INSTITUTION'S EXPENDITURES ON SECULAR AS DISTINGUISHED FROM RELIGIOUS
ACTIVITIES."  403 U. S., AT 688. 

BUT UNDER THE SOUTH CAROLINA SCHEME, "CONTINUING FINANCIAL
RELATIONSHIPS OR DEPENDENCIES," "ANNUAL AUDITS," "GOVERNMENT ANALYSIS,"
AND "REGULATION AND SURVEILLANCE" ARE THE CORE FEATURES OF THE
ARRANGEMENT.  IN SHORT, THE SOUTH CAROLINA STATUTORY SCHEME AS APPLIED
TO THIS SECTARIAN INSTITUTION PRESENTS THE VERY SORT OF "INTIMATE
CONTINUING RELATIONSHIP OR DEPENDENCY BETWEEN GOVERNMENT AND
RELIGIOUSLY AFFILIATED INSTITUTIONS" THAT IN THE PLURALITY'S VIEW WAS
LACKING IN TILTON.  IBID. 

NOR IS THE SOUTH CAROLINA ARRANGEMENT BETWEEN THE STATE AND THIS
COLLEGE ANY LESS OFFENSIVE TO THE CONSTITUTION BECAUSE IT INVOLVES, AS
THE COURT ASSERTS, NO DIRECT FINANCIAL SUPPORT TO THE COLLEGE BY THE
STATE.  THE ESTABLISHMENT CLAUSE FORBIDS FAR MORE THAN PAYMENT OF
PUBLIC FUNDS DIRECTLY TO SUPPORT SECTARIAN INSTITUTIONS.  IT FORBIDS
ANY OFFICIAL INVOLVEMENT WITH RELIGION, WHATEVER ITS FORM, WHICH TENDS
TO FOSTER OR DISCOURAGE RELIGIOUS WORSHIP OR BELIEF.  THE CASES ARE
MANY IN WHICH WE HAVE STRUCK DOWN ON ESTABLISHMENT GROUNDS STATE LAWS
THAT PROVIDED, NOT DIRECT FINANCIAL SUPPORT TO RELIGIOUS INSTITUTIONS,
BUT VARIOUS OTHER FORMS OF ASSISTANCE.  MC COLLUM V. BOARD OF
EDUCATION, 333 U. S. 203 (1948) ("RELEASE TIME" PROGRAM); ENGEL V.
VITALE, 370 U. S. 421 (1962) (PRAYER READING IN PUBLIC SCHOOLS);
ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U. S. 203 (1963) (BIBLE
READING IN PUBLIC SCHOOLS).  MOREOVER, ANY SUGGESTION THAT THE
CONSTITUTIONALITY OF A STATUTORY PROGRAM TO AID SECTARIAN INSTITUTIONS
IS DEPENDENT ON WHETHER THAT AID CAN BE CHARACTERIZED AS DIRECT OR
INDIRECT IS FLATLY REFUTED BY THE COURT'S DECISIONS TODAY IN COMMITTEE
FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, POST, P. 756, AND
SLOAN V. LEMON, POST, P. 825.  IN THOSE CASES, WE WENT BEHIND THE MERE
ASSERTION THAT TUITION REIMBURSEMENT AND TAX EXEMPTION PROGRAMS
PROVIDED NO DIRECT AID TO SECTARIAN SCHOOLS AND CONCLUDED THAT THE
"SUBSTANTIVE IMPACT" OF SUCH PROGRAMS WAS ESSENTIALLY THE SAME AS A
DIRECT SUBSIDY FROM THE STATE. 

THE SOUTH CAROLINA ARRANGEMENT HAS THE IDENTICAL CONSTITUTIONAL
INFIRMITIES.  THE STATE FORTHRIGHTLY AIDS THE COLLEGE BY PERMITTING THE
COLLEGE TO AVAIL ITSELF OF THE STATE'S UNIQUE ABILITY TO BORROW MONEY
AT LOW INTEREST RATES, AND THE COLLEGE, IN TURN, SURRENDERS TO THE
STATE A COMPREHENSIVE AND CONTINUING SURVEILLANCE OF THE EDUCATIONAL,
RELIGIOUS, AND FISCAL AFFAIRS OF THE COLLEGE.  THE CONCLUSION IS
COMPELLED THAT THIS INVOLVES THE STATE IN THE "ESSENTIALLY RELIGIOUS
ACTIVITIES OF RELIGIOUS INSTITUTIONS" AND "EMPLOYS) THE ORGANS OF
GOVERNMENT FOR ESSENTIALLY RELIGIOUS PURPOSES."  I THEREFORE DISSENT
AND WOULD REVERSE THE JUDGMENT OF THE SUPREME COURT OF SOUTH CAROLINA. 

/1/  NO ONE DENIES THAT THE BAPTIST COLLEGE AT CHARLESTON IS A
"SECTARIAN" INSTITUTION^^I. E., ONE "IN WHICH THE PROPAGATION AND
ADVANCEMENT OF A PARTICULAR RELIGION ARE A FUNCTION OR PURPOSE OF THE
INSTITUTION."  LEMON V. KURTZMAN, 403 U. S. 602, 659 (1971) (SEPARATE
OPINION OF BRENNAN, J.). 

/2/  THE SOUTH CAROLINA EDUCATIONAL FACILITIES AUTHORITY IS COMPOSED
OF THE MEMBERS OF THE STATE BUDGET AND CONTROL BOARD, WHO ARE THE
GOVERNOR, THE STATE TREASURER, THE STATE COMPTROLLER GENERAL, THE
CHAIRMAN OF THE FINANCE COMMITTEE OF THE STATE SENATE, AND THE CHAIRMAN
OF THE WAYS AND MEANS COMMITTEE OF THE STATE HOUSE OF REPRESENTATIVES. 
THE ACT STATES THAT "ALL THE FUNCTIONS AND POWERS OF THE AUTHORITY ARE
HEREBY GRANTED TO THE STATE BUDGET AND CONTROL BOARD AS AN INCIDENT OF
ITS FUNCTIONS IN CONNECTION WITH THE PUBLIC FINANCES OF THE STATE."  S.
C. CODE ANN. ^ 22 - 41.3 (SUPP. 1971). 

/3/  THIS OUTSTANDING INDEBTEDNESS PERTAINS TO CERTAIN UNSPECIFIED
"CAPITAL IMPROVEMENTS."  APP. 49.  THUS, IT MAY BE THAT THE
INDEBTEDNESS WAS INCURRED FOR IMPROVEMENTS TO FACILITIES USED FOR
RELIGIOUS PURPOSES. 

ROBERT MC C. FIGG, JR., ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON
THE BRIEF WAS THOMAS B. BRYANT, JR. 

HUGER SINKLER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
DANIEL R. MC LEOD, ATTORNEY GENERAL OF SOUTH CAROLINA, AND THEODORE B.
GUERARD. 

GEORGE F. KUGLER, JR., ATTORNEY GENERAL, STEPHEN SKILLMAN, ASSISTANT
ATTORNEY GENERAL, AND CHARLES R. PARKER AND LEWIS M. POPPER, CEPUTY
ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF NEW JERSEY AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :


















COMMITTEE FOR PUBLIC EDUCATION V. NYQUIST 413 U.S. 756 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK 

     NO. 72 - 694.  ARGUED APRIL 16, 1973--DECIDED JUNE 25, 1973;
350

  F.SUPP.  655, AFFIRMED IN PART AND REVERSED IN PART.  TOGETHER

  WITH NO. 72 - 753, ANDERSON V. COMMITTEE FOR PUBLIC EDUCATION &

  RELIGIOUS LIBERTY ET AL.; NO. 72 - 791, NYQUIST, COMMISSIONER OF

  EDUCATION OF NEW YORK, ET AL. V. COMMITTEE FOR PUBLIC EDUCATION &

  RELIGIOUS LIBERTY ET AL.: AND NO. 72 - 929, CHERRY ET AL. V.

  COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY ET AL., ALSO

  ON APPEAL FROM THE SAME COURT. 


    AMENDMENTS TO NEW YORK'S EDUCATION AND TAX LAWS ESTABLISHED

  THREE FINANCIAL AID PROGRAMS FOR NONPUBLIC ELEMENTARY AND

  SECONDARY SCHOOLS.  THE FIRST SECTION PROVIDES FOR DIRECT MONEY

  GRANTS TO "QUALIFYING" NONPUBLIC SCHOOLS TO BE USED FOR

  "MAINTENANCE AND REPAIR" OF FACILITIES AND EQUIPMENT TO ENSURE

  THE STUDENTS'"HEALTH, WELFARE AND SAFETY."  A "QUALIFYING"

  SCHOOL IS A NONPUBLIC, NONPROFIT ELEMENTARY OR SECONDARY SCHOOL

  SERVING A HIGH CONCENTRATION OF PUPILS FROM LOW-INCOME FAMILIES. 

  THE ANNUAL GRANT IS $30 PER PUPIL, OR $40 IF THE FACILITIES ARE

  MORE THAN 25 YEARS OLD, WHICH MAY NOT EXCEED 50% OF THE AVERAGE

  PER-PUPIL COST FOR EQUIVALENT SERVICES IN THE PUBLIC SCHOOLS. 

  LEGISLATIVE FINDINGS CONCLUDED THAT THE STATE "HAS A PRIMARY

  RESPONSIBILITY TO ENSURE THE HEALTH, WELFARE AND SAFETY OF

  CHILDREN ATTENDING . . . NONPUBLIC SCHOOLS"; THAT THE "FISCAL

  CRISIS IN NONPUBLIC EDUCATION . . . HAS CAUSED A DIMINUTION OF

  PROPER MAINTENANCE AND REPAIR PROGRAMS, THREATENING THE HEALTH,

  WELFARE AND SAFETY OF NONPUBLIC SCHOOL CHILDREN" IN LOW-INCOME

  URBAN AREAS; AND THAT "A HEALTHY AND SAFE SCHOOL ENVIRONMENT"

  CONTRIBUTES "TO THE STABILITY OF URBAN NEIGHBORHOODS."  SECTION 2

ESTABLISHES A TUITION REIMBURSEMENT PLAN FOR PARENTS OF CHILDREN

  ATTENDING NONPUBLIC ELEMENTARY OR SECONDARY SCHOOLS.  TO QUALIFY,

  A PARENT'S ANNUAL TAXABLE INCOME MUST BE LESS THAN $5,000.  THE

  AMOUNT OF REIMBURSEMENT IS $50 PER GRADE SCHOOL CHILD AND $100

  PER HIGH SCHOOL STUDENT SO LONG AS THOSE AMOUNTS DO NOT EXCEED

  50% OF ACTUAL TUITION PAID.  THE LEGISLATURE FOUND THAT THE RIGHT

  TO SELECT AMONG ALTERNATIVE EDUCATIONAL SYSTEMS SHOULD BE

  AVAILABLE IN A PLURALISTIC SOCIETY, AND THAT ANY SHARP DECLINE IN

NONPUBLIC SCHOOL PUPILS WOULD MASSIVELY INCREASE PUBLIC SCHOOL

  ENROLLMENT AND COSTS, SERIOUSLY JEOPARDIZING QUALITY EDUCATION

  FOR ALL CHILDREN.  REITERATING A DECLARATION CONTAINED IN THE

  FIRST SECTION, THE FINDINGS CONCLUDED THAT "SUCH ASSISTANCE IS

  CLEARLY SECULAR, NEUTRAL AND NONIDEOLOGICAL."  THE THIRD PROGRAM,

  CONTAINED IN ^^ 3, 4, AND 5 OF THE CHALLENGED LAW, IS DESIGNED TO

  GIVE TAX RELIEF TO PARENTS FAILING TO QUALIFY FOR TUITION

  REIMBURSEMENT.  EACH ELIGIBLE TAXPAYER-PARENT IS ENTITLED TO

  DEDUCT A STIPULATED SUM FROM HIS ADJUSTED GROSS INCOME FOR EACH

CHILD ATTENDING A NONPUBLIC SCHOOL.  THE AMOUNT OF THE DEDUCTION

  IS UNRELATED TO THE AMOUNT OF TUITION ACTUALLY PAID AND DECREASES

  AS THE AMOUNT OF TAXABLE INCOME INCREASES.  THESE SECTIONS ARE

  ALSO PREFACED BY A SERIES OF LEGISLATIVE FINDINGS SIMILAR TO

  THOSE ACCOMPANYING THE PREVIOUS SECTIONS.  ALMOST 20% OF THE

  STATE'S STUDENTS, SOME 700,000 TO 800,000, ATTEND NONPUBLIC

  SCHOOLS, APPROXIMATELY 85% OF WHICH ARE CHURCH AFFILIATED.  WHILE

  PRACTICALLY ALL THE SCHOOLS ENTITLED TO RECEIVE MAINTENANCE AND

  REPAIR GRANTS "ARE RELATED TO THE ROMAN CATHOLIC CHURCH AND TEACH

  CATHOLIC RELIGIOUS DOCTRINE TO SOME DEGREE," INSTITUTIONS

  QUALIFYING UNDER THE REMAINDER OF THE STATUTE INCLUDE A

  SUBSTANTIAL NUMBER OF OTHER CHURCH-AFFILIATED SCHOOLS.  THE

  DISTRICT COURT HELD THAT ^ 1, THE MAINTENANCE AND REPAIR GRANTS,

  AND ^ 2, THE TUITION REIMBURSEMENT GRANTS, WERE INVALID, BUT THAT

  THE INCOME TAX PROVISIONS OF ^^ 3, 4, AND 5 DID NOT VIOLATE THE

  ESTABLISHMENT CLAUSE.  HELD: 

     1.  THE PROPRIETY OF A LEGISLATURE'S PURPOSE MAY NOT IMMUNIZE

  FROM FURTHER SCRUTINY A LAW THAT EITHER HAS A PRIMARY EFFECT THAT

  ADVANCES RELIGION OR FOSTERS EXCESSIVE CHURCH-STATE

  ENTANGLEMENTS.  PP. 772 - 774. 

    2.  THE MAINTENANCE AND REPAIR PROVISIONS OF THE NEW YORK

  STATUTE VIOLATE THE ESTABLISHMENT CLAUSE BECAUSE THEIR INEVITABLE

  EFFECT IS TO SUBSIDIZE AND ADVANCE THE RELIGIOUS MISSION OF

  SECTARIAN SCHOOLS.  THOSE PROVISIONS DO NOT PROPERLY GUARANTEE

  THE SECULARITY OF STATE AID BY LIMITING THE PERCENTAGE OF

  ASSISTANCE TO 50% OF COMPARABLE AID TO PUBLIC SCHOOLS.  SUCH

  STATISTICAL ASSURANCES FAIL TO PROVIDE AN ADEQUATE GUARANTEE THAT

  AID WILL NOT BE UTILIZED TO ADVANCE THE RELIGIOUS ACTIVITIES OF

  SECTARIAN SCHOOLS.  PP. 774 - 780. 

     3.  THE TUITION REIMBURSEMENT GRANTS, IF GIVEN DIRECTLY TO

  SECTARIAN SCHOOLS, WOULD SIMILARLY VIOLATE THE ESTABLISHMENT

  CLAUSE, AND THE FACT THAT THEY ARE DELIVERED TO THE PARENTS

  RATHER THAN THE SCHOOLS DOES NOT COMPEL A CONTRARY RESULT, AS THE

  EFFECT OF THE AID IS UNMISTAKABLY TO PROVIDE FINANCIAL SUPPORT

 FOR NONPUBLIC, SECTARIAN INSTITUTIONS.  PP. 780 - 789. 

    (A) THE FACT THAT THE GRANT IS GIVEN AS REIMBURSEMENT FOR

  TUITION ALREADY PAID, AND THAT THE RECIPIENT IS NOT REQUIRED TO

  SPEND THE AMOUNT RECEIVED ON EDUCATION, DOES NOT ALTER THE EFFECT

  OF THE LAW.  PP. 785 - 787. 

(B) THE ARGUMENT THAT THE STATUTE PROVIDES "A STATISTICAL

  GUARANTEE OF NEUTRALITY" SINCE THE TUITION REIMBURSEMENT IS ONLY

  15% OF THE EDUCATIONAL COSTS IN NONPUBLIC SCHOOLS AND THE

  COMPULSORY EDUCATION LAWS REQUIRE MORE THAN 15% OF THE SCHOOL

  TIME TO BE DEVOTED TO SECULAR COURSES, IS MERELY ANOTHER VARIANT

  OF THE ARGUMENT REJECTED AS TO MAINTENANCE AND REPAIR COSTS.  PP.

  787 - 788. 

(C) THE STATE MUST MAINTAIN AN ATTITUDE OF "NEUTRALITY,"

NEITHER "ADVANCING" NOR "INHIBITING" RELIGION, AND IT CANNOT BY

  DESIGNING A PROGRAM TO PROMOTE THE FREE EXERCISE OF RELIGION

  ERODE THE LIMITATIONS OF THE ESTABLISHMENT CLAUSE.  PP. 788 -

  789. 

     4.  THE SYSTEM OF PROVIDING INCOME TAX BENEFITS TO PARENTS OF

  CHILDREN ATTENDING NEW YORK'S NONPUBLIC SCHOOLS ALSO VIOLATES THE

  ESTABLISHMENT CLAUSE BECAUSE, LIKE THE TUITION REIMBURSEMENT

  PROGRAM, IT IS NOT SUFFICIENTLY RESTRICTED TO ASSURE THAT IT WILL

  NOT HAVE THE IMPERMISSIBLE EFFECT OF ADVANCING THE SECTARIAN

  ACTIVITIES OF RELIGIOUS SCHOOLS.  WALZ V. TAX COMM'N, 397 U. S.

  664, DISTINGUISHED.  PP. 789 - 794. 

5.  BECAUSE THE CHALLENGED SECTIONS HAVE THE IMPERMISSIBLE

  EFFECT OF ADVANCING RELIGION, IT IS NOT NECESSARY TO CONSIDER

  WHETHER SUCH AID WOULD YIELD AN ENTANGLEMENT WITH RELIGION.  BUT

  IT SHOULD BE NOTED THAT, APART FROM ANY ADMINISTRATIVE

  ENTANGLEMENT OF THE STATE IN PARTICULAR RELIGIOUS PROGRAMS,

  ASSISTANCE OF THE SORT INVOLVED HERE CARRIES GRAVE POTENTIAL FOR

  ENTANGLEMENT IN THE BROADER SENSE OF CONTINUING AND EXPANDING

  POLITICAL STRIFE OVER AID TO RELIGION.  PP. 794 - 798. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED.  BURGER, C. J.,
FILED AN OPINION CONCURRING IN PART II-A OF THE COURT'S OPINION, IN
WHICH REHNQUIST, J., JOINED, AND DISSENTING FROM PARTS II-B AND II-C,
IN WHICH WHITE AND REHNQUIST, JJ., JOINED, POST, P. 798.  REHNQUIST,
J., FILED AN OPINION DISSENTING IN PART, IN WHICH BURGER, C. J., AND
WHITE, J., JOINED, POST, P. 805.  WHITE, J., FILED A DISSENTING
OPINION, IN THOSE PORTIONS OF WHICH RELATING TO PARTS II-B AND II-C OF
THE COURT'S OPINION BURGER, C. J., AND REHNQUIST, J., JOINED, POST, P.
813. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THESE CASES RAISE A CHALLENGE UNDER THE ESTABLISHMENT CLAUSE OF THE
FIRST AMENDMENT TO THE CONSTITUTIONALITY OF A RECENTLY ENACTED NEW YORK
LAW WHICH PROVIDES FINANCIAL ASSISTANCE, IN SEVERAL WAYS, TO NONPUBLIC
ELEMENTARY AND SECONDARY SCHOOLS IN THAT STATE.  THE CASES INVOLVE AN
INTERTWINING OF SOCIETAL AND CONSTITUTIONAL ISSUES OF THE GREATEST
IMPORTANCE. 

JAMES MADISON, IN HIS MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS
ASSESSMENTS, /1/  ADMONISHED THAT A "PRUDENT JEALOUSY" FOR RELIGIOUS
FREEDOMS REQUIRED THAT THEY NEVER BECOME "ENTANGLED . . . IN
PRECEDENTS."  /2/  HIS STRONGLY HELD CONVICTIONS, COUPLED WITH THOSE OF
THOMAS JEFFERSON AND OTHERS AMONG THE FOUNDERS, ARE REFLECTED IN THE
FIRST CLAUSES OF THE FIRST AMENDMENT OF THE BILL OF RIGHTS, WHICH STATE
THAT "CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF."  /3/  YET, DESPITE
MADISON'S ADMONITION AND "SWEEP OF THE ABSOLUTE PROHIBITIONS" OF THE
CLAUSES, /4/  THIS NATION'S HISTORY HAS NOT BEEN ONE OF ENTIRELY
SANITIZED SEPARATION BETWEEN CHURCH AND STATE.  IT HAS NEVER BEEN
THOUGHT EITHER POSSIBLE OR DESIRABLE TO ENFORCE A REGIME OF TOTAL
SEPARATION, AND AS A CONSEQUENCE CASES ARISING UNDER THESE CLAUSES HAVE
PRESENTED SOME OF THE MOST PERPLEXING QUESTIONS TO COME BEFORE THIS
COURT.  THOSE CASES HAVE OCCASIONED THOROUGH AND THOUGHTFUL SCHOLARSHIP
BY SEVERAL OF THIS COURT'S MOST RESPECTED FORMER FUSTICES, INCLUDING
JUSTICES BLACK, FRANKFURTER, HARLAN, JACKSON, RUTLEDGE, AND CHIEF
JUSTICE WARREN. 

AS A RESULT OF THESE DECISIONS AND OPINIONS, IT MAY NO LONGER BE
SAID THAT THE RELIGION CLAUSES ARE FREE OF "ENTANGLING" PRECEDENTS. 
NEITHER, HOWEVER, MAY IT BE SAID THAT JEFFERSON'S METAPHORIC "WALL OF
SEPARATION BETWEEN CHURCH AND STATE HAS BECOME "AS WINDING AS THE
FAMOUS SERPENTINE WALL"  HE DESIGNED FOR THE UNIVERSITY OF VIRGINIA. 
MC COLLUM V. BOARD OF EDUCATION, 333 U. S. 203, 238 (1948) (JACKSON,
J., CONCURRING).  INDEED, THE CONTROLLING CONSTITUTIONAL STANDARDS HAVE
BECOME FIRMLY ROOTED AND THE BROAD CONTOURS OF OUR INQUIRY ARE NOW WELL
DEFINED.  OUR TASK, THEREFORE, IS TO ASSESS NEW YORK'S SEVERAL FORMS OF
AID IN THE LIGHT OF PRINCIPLES ALREADY DELINEATED.  /5/

        I 

IN MAY 1972, THE GOVERNOR OF NEW YORK SIGNED INTO LAW SEVERAL
AMENDMENTS TO THE STATE'S EDUCATION AND TAX LAWS.  THE FIRST FIVE
PROGRAMS FOR NONPUBLIC ELEMENTARY AND SECONDARY SCHOOLS.  ALMOST
IMMEDIATELY AFTER THE SIGNING OF THESE MEASURES A COMPLAINT WAS FILED
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK CHALLENGING EACH OF THE THREE FORMS OF AID AS VIOLATIVE OF THE
ESTABLISHMENT CLAUSE.  THE PLAINTIFFS WERE AN UNINCORPORATED
ASSOCIATION, KNOWN AS THE COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS
LIBERTY (PEARL), AND SEVERAL INDIVIDUALS WHO WERE RESIDENTS AND
TAXPAYERS IN NEW YORK, SOME OF WHOM HAD CHILDREN ATTENDING PUBLIC
SCHOOLS.  NAMED AS DEFENDANTS WERE THE STATE COMMISSIONER OF EDUCATION,
THE COMPTROLLER, AND THE COMMISSIONER OF TAXATION AND FINANCE.  MOTIONS
TO INTERVENE ON BEHALF OF DEFENDANTS WERE GRANTED TO A GROUP OF PARENTS
WITH CHILDREN ENROLLED IN NONPUBLIC SCHOOLS, AND TO THE MAJORITY LEADER
AND PRESIDENT PRO TEM OF THE NEW YORK STATE SENATE.  /6/  BY CONSENT OF
THE PARTIES, A THREE-JUDGE COURT WAS CONVENED PURSUANT TO 28 U.S.C. ^^
2281 AND 2283, AND THE CASE WAS DECIDED WITHOUT AN EVIDENTIARY
HEARING.  BECAUSE THE QUESTIONS BEFORE THE DISTRICT COURT WERE RESOLVED
ON THE BASIS OF THE PLEADINGS, THAT COURT'S DECISION TURNED ON THE
CONSTITUTIONALITY OF EACH PROVISION ON ITS FACE. 

THE FIRST SECTION OF THE CHALLENGED ENACTMENT, ENTITLED "HEALTH AND
SAFETY GRANTS FOR NONPUBLIC SCHOOL CHILDREN,"  /7/  PROVIDES FOR DIRECT
MONEY GRANTS FROM THE STATE TO "QUALIFYING" NONPUBLIC SCHOOLS TO BE
USED FOR THE "MAINTENANCE AND REPAIR OF . . . SCHOOL FACILITIES AND
EQUIPMENT TO ENSURE THE HEALTH, WELFARE AND SAFETY OF ENROLLED
PUPILS."  /8/  A "QUALIFYING" SCHOOL IS ANY NONPUBLIC, NONPROFIT
ELEMENTARY OR SECONDARY SCHOOL WHICH "HAS BEEN DESIGNATED DURING THE
(IMMEDIATELY PRECEDING) YEAR AS SERVING A HIGH CONCENTRATION OF PUPILS
FROM LOW-INCOME FAMILIES FOR PURPOSES OF TITLE IV OF THE FEDERAL HIGHER
EDUCATION ACT OF NINETEEN HUNDRED SIXTY-FIVE (20 U.S.C. A. ^ 425)." 
/9/  SUCH SCHOOLS ARE ENTITLED TO RECEIVE A GRANT OF $30 PER PUPIL PER
YEAR, OR $40 PER PUPIL PER YEAR IF THE FACILITIES ARE MORE THAN 25
YEARS OLD.  EACH SCHOOL IS REQUIRED TO SUBMIT TO THE COMMISSIONER OF
EDUCATION AN AUDITED STATEMENT OF ITS EXPENDITURES FOR MAINTENANCE AND
REPAIR DURING THE PRECEDING YEAR, AND ITS GRANT MAY NOT EXCEED THE
TOTAL OF SUCH EXPENSES.  THE COMMISSIONER IS ALSO REQUIRED TO ASCERTAIN
THE AVERAGE PER-PUPIL COST FOR EQUIVALENT MAINTENANCE AND REPAIR
SERVICES IN THE PUBLIC SCHOOLS, AND IN NO EVENT MAY THE GRANT TO
NONPUBLIC QUALIFYING SCHOOLS EXCEED 50% OF THAT FIGURE. 

"MAINTENANCE AND REPAIR" IS DEFINED BY THE STATUTE TO INCLUDE "THE
PROVISION OF HEAT, LIGHT, WATER, VENTILATION AND SANITARY FACILITIES;
CLEANING, JANITORIAL AND CUSTODIAL SERVICES; SNOW REMOVAL; NECESSARY
UPKEEP AND RENOVATION OF BUILDINGS, GROUNDS AND EQUIPMENT; FIRE AND
ACCIDENT PROTECTION; AND SUCH OTHER ITEMS AS THE COMMISSIONER MAY DEEM
NECESSARY TO ENSURE THE HEALTH, WELFARE AND SAFETY OF ENROLLED
PUPILS."  /10/  THIS SECTION IS PREFACED BY A SERIES OF LEGISLATIVE
FINDINGS WHICH SHED LIGHT ON THE STATE'S PURPOSE IN ENACTING THE LAW. 
THESE FINDINGS CONCLUDE THAT THE STATE "HAS A PRIMARY RESPONSIBILITY TO
ENSURE THE HEALTH, WELFARE AND SAFETY OF CHILDREN ATTENDING . . .
NONPUBLIC SCHOOLS"' THAT THE "FISCAL CRISIS IN NONPUBLIC EDUCATION . .
. HAS CAUSED A DIMINUTION OF PROPER MAINTENANCE AND REPAIR PROGRAMS,
THREATENING THE HEALTH, WELFARE AND SAFETY OF NONPUBLIC SCHOOL
CHILDREN" IN LOW-INCOME URBAN AREAS; AND THAT "A HEALTHY AND SAFE
SCHOOL ENVIRONMENT" CONTRIBUTES "TO THE STABILITY OF URBAN
NEIGHBORHOODS."  FOR THESE REASONS, THE STATUTE DECLARES THAT "THE
STATE HAS THE RIGHT TO MAKE GRANTS FOR MAINTENANCE AND REPAIR
EXPENDITURES WHICH ARE CLEARLY SECULAR, NEUTRAL AND NON-IDEOLOGICAL IN
NATURE."  /11/ 

THE REMAINDER OF THE CHALLENGED LEGISLATION-- ^^ 2 THROUGH 5-- IS A
SINGLE PACKAGE CAPTIONED THE "ELEMENTARY AND SECONDARY EDUCATION
OPPORTUNITY PROGRAM."  IT IS COMPOSED, ESSENTIALLY, OF TWO PARTS, A
TUITION GRANT PROGRAM AND A TAX BENEFIT PROGRAM.  SECTION 2 ESTABLISHES
A LIMITED PLAN PROVIDING TUITION REIMBURSEMENTS TO PARENTS OF CHILDREN
ATTENDING ELEMENTARY OR SECONDARY NONPUBLIC SCHOOLS.  /12/  TO QUALIFY
UNDER THIS SECTION A PARENT MUST HAVE AN ANNUAL TAXABLE INCOME OF LESS
THAN $5,000.  THE AMOUNT OF REIMBURSEMENT IS LIMITED TO $50 FOR EACH
GRADE SCHOOL CHILD AND $100 FOR EACH HIGH SCHOOL CHILD.  EACH PARENT IS
REQUIRED, HOWEVER, TO SUBMIT TO THE COMMISSIONER OF EDUCATION A
VERIFIED STATEMENT CONTAINING A RECEIPTED TUITION BILL, AND THE AMOUNT
OF STATE REIMBURSEMENT MAY NOT EXCEED 50% OF THAT FIGURE.  NO
RESTRICTIONS ARE IMPOSED ON THE USE OF THE FUNDS BY THE REIMBURSED
PARENTS. 

THIS SECTION, LIKE ^ 1, IS PREFACED BY A SERIES OF LEGISLATIVE
FINDINGS DESIGNED TO EXPLAIN THE IMPETUS FOR THE STATE'S ACTION. 
EXPRESSING A DEDICATION TO THE "VITALITY OF OUR PLURALISTIC SOCIETY,"
THE FINDINGS STATE THAT A "HEALTHY COMPETITIVE AND DIVERSE ALTERNATIVE
TO PUBLIC EDUCATION IS NOT ONLY DESIRABLE BUT INDEED VITAL TO A STATE
AND NATION THAT HAVE CONTINUALLY REAFFIRMED THE VALUE OF INDIVIDUAL
DIFFERENCES."  /13/  THE FINDINGS FURTHER EMPHASIZE THAT THE RIGHT TO
SELECT AMONG ALTERNATIVE EDUCATIONAL SYSTEMS "IS DIMINISHED OR EVEN
DENIED TO CHILDREN OF LOWER-INCOME FAMILIES, WHOSE PARENTS, OF ALL
GROUPS, HAVE THE LEAST OPTIONS IN DETERMINING WHERE THEIR CHILDREN ARE
TO BE EDUCATED."  /14/  TURNING TO THE PUBLIC SCHOOLS, THE FINDINGS
STATE THAT ANY PRECIPITOUS DECLINE IN THE NUMBER OF NONPUBLIC SCHOOL
PUPILS WOULD CAUSE A MASSIVE INCREASE IN PUBLIC SCHOOL ENROLLMENT AND
COSTS," AN INCREASE THAT WOULD "AGGRAVATE AN ALREADY SERIOUS FISCAL
CRISIS IN PUBLIC EDUCATION" AND WOULD "SERIOUSLY JEOPARDIZE QUALITY
EDUCATION FOR ALL CHILDREN."  /15/  BASED ON THESE PREMISES, THE
STATUTE ASSERTS THE STATE'S RIGHT TO RELIEVE THE FINANCIAL BURDEN OF
PARENTS WHO SEND THEIR CHILDREN TO NONPUBLIC SCHOOLS THROUGH THIS
TUITION REIMBURSEMENT PROGRAM.  REPEATING THE DECLARATION CONTAINED IN
^ 1, THE FINDINGS CONCLUDE THAT "(SUCH ASSISTANCE IS CLEARLY SECULAR,
NEUTRAL AND NONIDEOLOGICAL."  /16/ 

THE REMAINDER OF THE "ELEMENTARY AND SECONDARY EDUCATION OPPORTUNITY
PROGRAM," CONTAINED IN ^^ 3, 4, AND 5 OF THE CHALLENGED LAW, /17/  IS
DESIGNED TO PROVIDE A FORM OF TAX RELIEF TO THOSE WHO FAIL TO QUALIFY
FOR TUITION REIMBURSEMENT.  UNDER THESE SECTIONS PARENTS MAY SUBTRACT
FROM THEIR ADJUSTED GROSS INCOME FOR STATE INCOME TAX PURPOSES A
DESIGNATED AMOUNT FOR EACH DEPENDENT FOR WHOM THEY HAVE PAID AT LEAST
$50 IN NONPUBLIC SCHOOL TUITION.  IF THE TAXPAYER'S ADJUSTED GROSS
INCOME IS LESS THAN $9,000 HE MAY SUBTRACT $1,000 FOR EACH OF AS MANY
AS THREE DEPENDENTS.  AS THE TAXPAYER'S INCOME RISES, THE AMOUNT HE MAY
SUBTRACT DIMINISHES.  THUS, IF A TAXPAYER HAS ADJUSTED GROSS INCOME OF
$15,000, HE MAY SUBTRACT ONLY $400 PER DEPENDENT, AND IF HIS INCOME IS
$25,000 OR MORE, NO DEDUCTION IS ALLOWED.  /18/  THE AMOUNT OF THE
DEDUCTION IS NOT DEPENDENT UPON HOW MUCH THE TAXPAYER ACTUALLY PAID FOR
NONPUBLIC SCHOOL TUITION, AND IS GIVEN IN ADDITION TO ANY DEDUCTIONS TO
WHICH THE TAXPAYER MAY BE ENTITLED FOR OTHER RELIGIOUS OR CHARITABLE
CONTRIBUTIONS.  AS INDICATED IN THE MEMORANDUM FROM THE MAJORITY LEADER
AND PRESIDENT PRO TEM OF THE SENATE, SUBMITTED TO EACH NEW YORK
LEGISLATOR DURING CONSIDERATION OF THE BILL, THE ACTUAL TAX BENEFITS
UNDER THESE PROVISIONS WERE CAREFULLY CALCUALATED IN ADVANCE.  /19/
THUS, COMPARABLE TAX BENEFITS PICK UP AT APPROXIMATELY THE POINT AT
WHICH TUITION REIMBURSEMENT BENEFITS LEAVE OFF. 

WHILE THE SCHEME OF THE ENACTMENT INDICATES THAT THE PURPOSES
UNDERLYING THE PROMULGATION OF THE TUITION REIMBURSEMENT PROGRAM SHOULD
BE REGARDED AS PERTINENT AS WELL TO THESE TAX LAW SECTIONS, ^ 3 DOES
CONTAIN AN ADDITIONAL SERIES OF LEGISLATIVE FINDINGS.  THOSE FINDINGS
MAY BE SUMMARIZED AS FOLLOWS:  (I) CONTRIBUTIONS TO RELIGIOUS,
CHARITABLE AND EDUCATIONAL INSTITUTIONS ARE ALREADY DEDUCTIBLE FROM
GROSS INCOME; (II) NONPUBLIC EDUCATIONAL INSTITUTIONS ARE ACCORDED TAX
EXEMPT STATUS; (III) SUCH INSTITUTIONS PROVIDE EDUCATION FOR CHILDREN
ATTENDING THEM AND ALSO SERVE TO RELIEVE THE PUBLIC SCHOOL SYSTEMS OF
THE BURDEN OF PROVIDING FOR THEIR EDUCATION; AND, THEREFORE, (IV) THE
"LEGISLATURE . . . FINDS AND DETERMINES THAT SIMILAR MODIFICATIONS . .
. SHOULD ALSO BE PROVIDED TO PARENTS FOR TUITION PAID TO NONPUBLIC
ELEMENTARY AND SECONDARY SCHOOLS ON BEHALF OF THEIR DEPENDENTS."  /20/ 

ALTHOUGH NO RECORD WAS DEVELOPED IN THESE CASES, A NUMBER OF
PERTINENT GENERALIZATIONS MAY BE MADE ABOUT THE NONPUBLIC SCHOOLS WHICH
WOULD BENEFIT FROM THESE ENACTMENTS.  THE DISTRICT COURT, RELYING ON
FINDINGS IN A SIMILAR CASE RECENTLY DECIDED BY THE SAME COURT, /21/
ADOPTED A PROFILE OF THESE SECTARIAN, NONPUBLIC SCHOOLS SIMILAR TO THE
ONE SUGGESTED IN THE PLAINTIFFS' COMPLAINT.  QUALIFYING INSTITUTIONS,
UNDER ALL THREE SEGMENTS OF THE ENACTMENT, COULD BE ONES THAT: 

"(A) IMPOSE RELIGIOUS RESTRICTIONS ON ADMISSIONS; (B) REQUIRE
ATTENDANCE OF PUPILS AT RELIGIOUS ACTIVITIES; (C) REQUIRE OBEDIENCE BY
STUDENTS TO THE DOCTRINES AND DOGMAS OF A PARTICULAR FAITH; (D) REQUIRE
PUPILS TO ATTEND INSTRUCTION IN THE THEOLOGY OR DOCTRINE OF A
PARTICULAR FAITH; (E) ARE AN INTEGRAL PART OF THE RELIGIOUS MISSION OF
THE CHURCH SPONSORING IT; (F) HAVE AS A SUBSTANTIAL PURPOSE THE
INCULCATION OF RELIGIOUS VALUES; (G) IMPOSE RELIGIOUS RESTRICTIONS ON
FACULTY APPOINTMENTS; AND (H) IMPOSE RELIGIOUS RESTRICTIONS ON WHAT OR
HOW THE FACULTY MAY TEACH."  350 F. SUPP. 655, 663. 

OF COURSE, THE CHARACTERISTICS OF INDIVIDUAL SCHOOLS MAY VARY WIDELY
FROM THAT PROFILE.  SOME 700,000 TO 800,000 STUDENTS, CONSTITUTING
ALMOST 20% OF THE STATE'S ENTIRE ELEMENTARY AND SECONDARY SCHOOL
POPULATION, ATTEND OVER 2,000 NONPUBLIC SCHOOLS, APPROXIMATELY 85% OF
WHICH ARE CHURCH AFFILIATED.  AND WHILE "ALL OR PRACTICALLY ALL" OF THE
280 SCHOOLS /22/ ENTITLED TO RECEIVE "MAINTENANCE AND REPAIR" GRANTS
"ARE RELATED TO THE ROMAN CATHOLIC CHURCH AND TEACH CATHOLIC RELIGIOUS
DOCTRINE TO SOME DEGREE," ID., AT 661, INSTITUTIONS QUALIFYING UNDER
THE REMAINDER OF THE STATUTE INCLUDE A SUBSTANTIAL NUMBER OF JEWISH,
LUTHERAN, EPISCOPAL, SEVENTH DAY ADVENTIST, AND OTHER CHURCH-AFFILIATED
SCHOOLS.  /23/ 

PLAINTIFFS ARGUED BELOW THAT BECAUSE OF THE SUBSTANTIALLY RELIGIOUS
CHARACTER OF THE INTENDED BENEFICIARIES, EACH OF THE STATE'S THREE
ENACTMENTS OFFENDED THE ESTABLISHMENT CLAUSE.  THE DISTRICT COURT, IN
AN OPINION CAREFULLY CANVASSING THIS COURT'S RECENT PRECEDENTS, HELD
UNANIMOUSLY THAT ^ 1 (MAINTENANCE AND REPAIR GRANTS) AND ^ 2 (TUITION
REIMBURSEMENT GRANTS) WERE INVALID.  AS TO THE INCOME TAX PROVISIONS OF
^^ 3, 4, AND 5, HOWEVER, A MAJORITY OF THE DISTRICT COURT, OVER THE
DISSENT OF CIRCUIT JUDGE HAYS, HELD THAT THE ESTABLISHMENT CLAUSE HAD
NOT BEEN VIOLATED.  FINDING THE PROVISIONS OF THE LAW SEVERABLE, IT
ENJOINED PERMANENTLY ANY FURTHER IMPLEMENTATION OF ^^ 1 AND 2 BUT
DECLARED THE REMAINDER OF THE LAW INDEPENDENTLY ENFORCEABLE.  THE
PLAINTIFFS (HEREINAFTER APPELLANTS) APPEALED DIRECTLY TO THIS COURT,
CHALLENGING THE DISTRICT COURT'S ADVERSE DECISION AS TO THE THIRD
SEGMENT OF THE STATUTE.  /24/  THE DEFENDANT STATE OFFICIALS
(HEREINAFTER APPELLEES) HAVE APPEALED SO MUCH OF THE COURT'S DECISION
AS INVALIDATES THE VENOR MAJORITY LEADER AND PRESIDENT PRO TEM OF THE
SENATE (HEREINAFTER APPELLEE OR INTERVENOR) HAS ALSO APPEALED FROM
THOSE ASPECTS OF THE LOWER COURT'S OPINION, /26/  AND THE INTERVENING
PARENTS OF NONPUBLIC SCHOOLCHILDREN (HEREINAFTER APPELLEE OR
INTERVENOR) HAVE APPEALED ONLY FROM THE DECISION AS TO ^ 2.  /27/  THIS
COURT NOTED PROBABLE JURISDICTION OVER EACH APPEAL AND ORDERED THE
CASES CONSOLIDATED FOR ORAL ARGUMENT.  410 U. S. 907 (1973).  THUS, THE
CONSTITUTIONALITY OF EACH OF NEW YORK'S RECENTLY PROMULGATED AID
PROVISIONS IS SQUARELY BEFORE US.  WE AFFIRM THE DISTRICT COURT INSOFAR
AS IT STRUCK DOWN ^^ 1 AND 2 AND REVERSE ITS DETERMINATION REGARDING ^^
3, 4, AND 5. 

        II 

THE HISTORY OF THE ESTABLISHMENT CLAUSE HAS BEEN RECOUNTED
FREQUENTLY AND NEED NOT BE REPEATED HERE.  SEE EVERSON V. BOARD OF
EDUCATION, 330 U. S. 1 (1947); ID., AT 28 (RUTLEDGE, J., DISSENTING);
/28/  MC COLLUN V. BOARD OF EDUCATION, 333 U. S., AT 212 (SEPARATE
OPINION OF FRANKFURTER, J.); MC GOWAN V. MARYLAND, 366 U. S. 420
(1961); ENGEL V. VITALE, 370 U. S. 421 (1962).  IT IS ENOUGH TO NOTE
THAT IT IS NOW FIRMLY ESTABLISHED THAT A LAW MAY BE ONE "RESPECTING AN
ESTABLISHMENT OF RELIGION" EVEN THOUGH ITS CONSEQUENCE IS NOT TO
PROMOTE A "STATE RELIGION,"  LEMON V. KURTZMAN, 403 U. S. 602, 612
(1971), AND EVEN THOUGH IT DOES NOT AID ONE RELIGION MORE THAN ANOTHER
BUT MERELY BENEFITS ALL RELIGIONS ALIKE.  EVERSON V. BOARD OF
EDUCATION, SUPRA, AT 15.  IT IS EQUALLY WELL ESTABLISHED, HOWEVER, THAT
NOT EVERY LAW THAT CONFERS AN "INDIRECT,"  "REMOTE," OR "INCIDENTAL"
BENEFIT UPON RELIGIOUS INSTITUTIONS IS, FOR THAT REASON ALONE,
CONSTITUTIONALLY INVALID.  EVERSON, SUPRA; MC GOWAN V. MARYLAND, SUPRA,
AT 450; WALZ V. TAX COMM'N, 397 U. S. 664, 671 - 672, 674 - 675
(1970).  WHAT OUR CASES REQUIRE IS CAREFUL EXAMINATION OF ANY LAW
CHALLENGED ON ESTABLISHMENT GROUNDS WITH A VIEW TO ASCERTAINING WHETHER
IT FURTHERS ANY OF THE EVILS AGAINST WHICH THAT CLAUSE PROTECTS. 
PRIMARY AMONG THOSE EVILS HAVE BEEN "SPONSORSHIP, FINANCIAL SUPPORT,
AND ACTIVE INVOLVEMENT OF THE SOVEREIGN IN RELIGIOUS ACTIVITY."  WALZ
V. TAX COMM'N, SUPRA, AT 668; LEMON V. KURTZMAN, SUPRA, AT 612. 

MOST OF THE CASES COMING TO THIS COURT RAISING ESTABLISHMENT CLAUSE
QUESTIONS HAVE INVOLVED THE RELATIONSHIP BETWEEN RELIGION AND
EDUCATION.  AMONG THESE RELIGIONEDUCATION PRECEDENTS, TWO GENERAL
CATEGORIES OF CASES MAY BE IDENTIFIED:  THOSE DEALING WITH RELIGIOUS
ACTIVITIES WITHIN THE PUBLIC SCHOOLS, /29/  AND THOSE INVOLVING PUBLIC
AID IN VARYING FORMS TO SECTARIAN EDUCATIONAL INSTITUTIONS.  /30/
WHILE THE NEW YORK LEGISLATION PLACES THIS CASE IN THE LATTER CATEGORY,
ITS RESOLUTION REQUIRES CONSIDERATION NOT ONLY OF THE SEVERAL AIT-TO
AND OF SEVERAL IMPORTANT NONEDUCATION CASES.  FOR THE NOW WELL-DEFINED
THREE-PART TEST THAT HAS EMERGED FROM OUR DECISIONS IS A PRODUCT OF
CONSIDERATIONS DERIVED FROM THE FULL SWEEP OF THE ESTABLISHMENT CLAUSE
CASES.  TAKEN TOGETHER, THESE DECISIONS DICTATE THAT TO PASS MUSTER
UNDER THE ESTABLISHMENT CLAUSE THE LAW IN QUESTION, FIRST, MUST REFLECT
A CLEARLY SECULAR LEGISLATIVE PURPOSE, E. G., EPPERSON V. ARKANSAS, 393
U. S. 97 (1968), SECOND, MUST HAVE A PRIMARY EFFECT THAT NEITHER
ADVANCES NOR INHIBITS RELIGION, E. G., MC GOWAN V. MARYLAND, SUPRA;
SCHOOL DISTRICT OF ABINGTON TOWNSHIP V. SCHEMPP, 374 U. S. 203 (1963),
AND, THIRD, MUST AVOID EXCESSIVE GOVERNMENT ENTANGLEMENT WITH RELIGION,
E. G., WALZ V. TAX COMM'N, SUPRA.  SEE LEMON V. KURTZMAN, SUPRA, AT 612
- 613; TILTON V. RICHARDSON, 403 U. S. 672, 678 (1971).  /31/ 

IN APPLYING THESE CRITERIA TO THE THREE DISTINCT FORMS OF AID
INVOLVED IN THIS CASE, WE NEED TOUCH ONLY BRIEFLY ON THE REQUIREMENT OF
A "SECULAR LEGISLATIVE PURPOSE."  AS THE RECITATION OF LEGISLATIVE
PURPOSES APPENDED TO NEW YORK'S LAW INDICATES, EACH MEASURE IS
ADEQUATELY SUPPORTED BY LEGITIMATE, NONSECTARIAN STATE INTERESTS.  WE
DO NOT QUESTION THE PROPRIETY, AND FULLY SECULAR CONTENT, OF NEW YORK'S
INTEREST IN PRESERVING A HEALTHY AND SAFE EDUCATIONAL ENVIRONMENT FOR
ALL OF ITS SCHOOL CHILDREN.  AND WE DO NOT DOUBT--INDEED, WE FULLY
RECOGNIZE--THE VALIDITY OF THE STATE'S INTERESTS IN PROMOTING PLURALISM
AND DIVERSITY AMONG ITS PUBLIC AND NONPUBLIC SCHOOLS.  NOR DO WE
HESITATE TO ACKNOWLEDGE THE REALITY OF ITS CONCERN FOR AN ALREADY
OVERBURDENED PUBLIC SCHOOL SYSTEM THAT MIGHT SUFFER IN THE EVENT THAT A
SIGNIFICANT PERCENTAGE OF CHILDREN PRESENTLY ATTENDING NONPUBLIC
SCHOOLS SHOULD ABANDON THOSE SCHOOLS IN FAVOR OF THE PUBLIC SCHOOLS. 

BUT THE PROPRIETY OF A LEGISLATURE'S PURPOSES MAY NOT IMMUNIZE FROM
FURTHER SCRUTINY A LAW WHICH EITHER HAS A PRIMARY EFFECT THAT ADVANCES
RELIGION, OR WHICH FOSTERS EXCESSIVE ENTANGLEMENTS BETWEEN CHURCH AND
STATE.  ACCORDINGLY, WE MUST WEIGH EACH OF THE THREE AID PROVISIONS
CHALLENGED HERE AGAINST THESE CRITERIA OF EFFECT AND ENTANGLEMENT. 

A 

THE "MAINTENANCE AND REPAIR" PROVISIONS OF ^ 1 AUTHORIZE DIRECT
PAYMENTS TO NONPUBLIC SCHOOLS, VIRTUALLY ALL OF WHICH ARE ROMAN
CATHOLIC SCHOOLS IN LOW-INCOME AREAS.  THE GRANTS, TOTALING $30 OR $40
PER PUPIL DEPENDING ON THE AGE OF THE INSTITUTION, ARE GIVEN LARGELY
WITHOUT RESTRICTION ON USAGE.  SO LONG AS EXPENDITURES DO NOT EXCEED
50% OF COMPARABLE EXPENSES IN THE PUBLIC SCHOOL SYSTEM, IT IS POSSIBLE
FOR A SECTARIAN ELEMENTARY OR SECONDARY SCHOOL TO FINANCE ITS ENTIRE
"MAINTENANCE AND REPAIR" BUDGET FROM STATE TAX-RAISED FUNDS.  NO
ATTEMPT IS MADE TO RESTRICT PAYMENTS TO THOSE EXPENDITURES RELATED TO
THE UPKEEP OF FACILITIES USED EXCLUSIVELY FOR SECULAR PURPOSES, NOR DO
WE THINK IT POSSIBLE WITHIN THE CONTEXT OF THESE RELIGION-ORIENTED
INSTITUTIONS TO IMPOSE SUCH RESTRICTIONS.  NOTHING IN THE STATUTE, FOR
INSTANCE, BARS A QUALIFYING SCHOOL FROM PAYING OUT OF STATE FUNDS THE
SALARIES OF EMPLOYEES WHO MAINTAIN THE SCHOOL CHAPEL, OR THE COST OF
RENOVATING CLASSROOMS IN WHICH RELIGION IS TAUGHT, OR THE COST OF
HEATING AND LIGHTING THOSE SAME FACILITIES.  ABSENT APPROPRIATE
RESTRICTIONS ON EXPENDITURES FOR THESE AND SIMILAR PURPOSES, IT SIMPLY
CANNOT BE DENIED THAT THIS SECTION HAS A PRIMARY EFFECT THAT ADVANCES
RELIGION IN THAT IT SUBSIDIZES DIRECTLY THE RELIGIOUS ACTIVITIES OF

THE STATE OFFICIALS NEVERTHELESS ARGUE THAT THESE EXPENDITURES FOR
"MAINTENANCE AND REPAIR" ARE SIMILAR TO OTHER FINANCIAL EXPENDITURES
APPROVED BY THIS COURT.  PRIMARILY THEY RELY ON EVERSON V. BOARD OF
EDUCATION, SUPRA; BOARD OF EDUCATION V. ALLEN, 392 U. S. 236 (1968);
AND TILTON V. RICHARDSON, SUPRA.  IN EACH OF THOSE CASES IT IS TRUE
THAT THE COURT APPROVED A FORM OF FINANCIAL ASSISTANCE WHICH CONFERRED
UNDENIABLE BENEFITS UPON PRIVATE, SECTARIAN SCHOOLS.  BUT A CLOSE
EXAMINATION OF THOSE CASES ILLUMINATES THEIR DISTINGUISHING
CHARACTERISTICS.  IN EVERSON, THE COURT, IN A FIVE-TO-FOUR DECISION,
APPROVED A PROGRAM OF REIMBURSEMENTS TO PARENTS OF PUBLIC AS WELL AS
PAROCHIAL SCHOOLCHILDREN FOR BUS FARES PAID IN CONNECTION WITH
TRANSPORTATION TO AND FROM SCHOOL, A PROGRAM WHICH THE COURT
CHARACTERIZED AS APPROACHING THE GE" OF IMPERMISSIBLE STATE AID.  330
U. S., AT 16.  IN ALLEN, DECIDED SOME 20 YEARS LATER, THE COURT UPHELD
A NEW YORK LAW AUTHORIZING THE PROVISION OF SECULAR TEXTBOOKS FOR ALL
CHILDREN IN GRADES SEVEN THROUGH 12 ATTENDING PUBLIC AND NONPUBLIC
SCHOOLS.  FINALLY, IN TILTON, THE COURT UPHELD FEDERAL GRANTS OF FUNDS
FOR THE CONSTRUCTION OF FACILITIES TO BE USED FOR CLEARLY SECULAR
PURPOSES BY PUBLIC AND NONPUBLIC INSTITUTIONS OF HIGHER LEARNING. 

THESE CASES SIMPLY RECOGNIZE THAT SECTARIAN SCHOOLS PERFORM SECULAR,
EDUCATIONAL FUNCTIONS AS WELL AS RELIGIOUS FUNCTIONS, AND THAT SOME
FORMS OF AID MAY BE CHANNELED TO THE SECULAR WITHOUT PROVIDING DIRECT
AID TO THE SECTARIAN.  BUT THE CHANNEL IS A NARROW ONE, AS THE ABOVE
CASES ILLUSTRATE.  OF COURSE, IT IS TRUE IN EACH CASE THAT THE
PROVISION OF SUCH NEUTRAL, NONIDEOLOGICAL AID, ASSISTING ONLY THE
SECULAR FUNCTIONS OF SECTARIAN SCHOOLS, SERVED INDIRECTLY AND
INCIDENTALLY TO PROMOTE THE RELIGIOUS FUNCTION BY RENDERING IT MORE
LIKELY THAT CHILDREN WOULD ATTEND SECTARIAN SCHOOLS AND BY FREEING THE
BUDGETS OF THOSE SCHOOLS FOR USE IN OTHER NONSECULAR AREAS.  BUT AN
INDIRECT AND INCIDENTAL EFFECT BENEFICIAL TO RELIGIOUS INSTITUTIONS HAS
NEVER BEEN THOUGHT A SUFFICIENT DEFECT TO WARRANT THE INVALIDATION OF A
STATE LAW.  IN MC GOWAN V. MARYLAND, SUPRA, SUNDAY CLOSING LAWS WERE
SUSTAINED EVEN THOUGH ONE OF THEIR UNDENIABLE EFFECTS WAS TO RENDER IT
SOMEWHAT MORE LIKELY THAT CITIZENS WOULD RESPECT RELIGIOUS INSTITUTIONS
AND EVEN ATTEND RELIGIOUS SERVICES.  ALSO, IN WALZ V. TAX COMM'N,
SUPRA, PROPERTY TAX EXEMPTIONS FOR CHURCH PROPERTY WERE HELD NOT
VIOLATIVE OF THE ESTABLISHMENT CLAUSE DESPITE THE FACT THAT SUCH
EXEMPTIONS RELIEVED CHURCHES OF A FINANCIAL BURDEN. 

TILTON DRAWS THE LINE MOST CLEARLY.  WHILE A BARE MAJORITY WAS THERE
PERSUADED, FOR THE REASONS STATED IN THE PLURALITY OPINION AND IN MR.
JUSTICE WHITE'S CONCURRENCE, THAT CAREFULLY LIMITED CONSTRUCTION GRANTS
TO COLLEGES AND UNIVERSITIES COULD BE SUSTAINED, THE COURT WAS
UNANIMOUS IN ITS REJECTION OF ONE CLAUSE OF THE FEDERAL STATUTE IN
QUESTION.  UNDER THAT CLAUSE, THE GOVERNMENT WAS ENTITLED TO RECOVER A
PORTION OF ITS GRANT TO A SECTARIAN INSTITUTION IN THE EVENT THAT THE
CONSTRUCTED FACILITY WAS USED TO ADVANCE RELIGION BY, FOR INSTANCE,
CONVERTING THE BUILDING TO A CHAPEL OR OTHERWISE ALLOWING IT TO BE
"USED TO PROMOTE RELIGIOUS INTERESTS."  403 U. S., AT 683.  BUT BECAUSE
THE STATUTE PROVIDED THAT THE CONDITION WOULD EXPIRE AT THE END OF 20
YEARS, THE FACILITIES WOULD THEREAFTER BE AVAILABLE FOR USE BY THE
INSTITUTION FOR ANY SECTARIAN PURPOSE.  IN STRIKING DOWN THIS
PROVISION, THE PLURALITY OPINION EMPHASIZED THAT "(LIMITING THE
PROHIBITION FOR RELIGIOUS USE OF THE STRUCTURE TO 20 YEARS OBVIOUSLY
OPENS THE FACILITY TO USE FOR ANY PURPOSE AT THE END OF THAT PERIOD." 
IBID.  AND IN THAT EVENT, "THE ORIGINAL FEDERAL GRANT WILL IN PART HAVE
THE EFFECT OF ADVANCING RELIGION."  IBID.  SEE ALSO ID., AT 692
(DOUGLAS, J., DISSENTING IN PART), 659 - 661 (SEPARATE OPINION OF
BRENNAN, J.), 665 N. 1 (WHITE, J., CONCURRING IN JUDGMENT).  IF TAX
RAISED FUNDS MAY NOT BE GRANTED TO INSTITUTIONS OF HIGHER LEARNING
WHERE THE POSSIBILITY EXISTS THAT THOSE FUNDS WILL BE USED TO CONSTRUCT
A FACILITY UTILIZED FOR SECTARIAN ACTIVITIES 20 YEARS HENCE, A FORTIORI
THEY MAY NOT BE DISTRIBUTED TO ELEMENTARY AND SECONDARY SECTARIAN
SCHOOLS /32/  FOR THE MAINTENANCE AND REPAIR OF FACILITIES WITHOUT ANY
LIMITATIONS ON THEIR USE.  IF THE STATE MAY NOT ERECT BUILDINGS IN
WHICH RELIGIOUS ACTIVITIES ARE TO TAKE PLACE, IT MAY NOT MAINTAIN SUCH
BUILDINGS OR RENOVATE THEM WHEN THEY FALL INTO DISREPAIR /33/ 

IT MIGHT BE ARGUED, HOWEVER, THAT WHILE THE NEW YORK "MAINTENANCE
AND REPAIR" GRANTS LACK SPECIFICALLY ARTICULATED SECULAR RESTRICTIONS,
THE STATUTE DOES PROVIDE A SORT OF STATISTICAL GUARANTEE OF SEPARATION
BY LIMITING GRANTS TO 50% OF THE ORDINARY PUBLIC SCHOOL MAINTENANCE AND
REPAIR BUDGET WOULD BE DEVOTED TO PURELY SECULAR FACILITY UPKEEP IN
STATUTE ITSELF ALLOWS, AS A CEILING, GRANTS SATISFYING THE ENTIRE
"AMOUNT OF EXPENDITURES FOR MAINTENANCE AND REPAIR OF SUCH SCHOOL"
PROVIDING ONLY THAT IT IS NEITHER MORE THAN $30 OR $40 PER PUPIL NOR
MORE THAN 50% OF THE COMPARABLE PUBLIC SCHOOL EXPENDITURES.  /34/
QUITE APART FROM THE LANGUAGE OF THE STATUTE, OUR CASES MAKE CLEAR THAT
A MERE STATISTICAL JUDGMENT WILL NOT SUFFICE AS A GUARANTEE THAT STATE
FUNDS WILL NOT BE USED TO FINANCE RELIGIOUS EDUCATION.  IN EARLEY V. DI
CENSO, A COMPANION CASE TO LEMON V. KURTZMAN, SUPRA, THE COURT STRUCK
DOWN A RHODE ISLAND LAW AUTHORIZING SALARY SUPPLEMENTS TO TEACHERS OF
SECULAR SUBJECTS.  THE GRANTS WERE NOT TO EXCEED 15% OF ANY TEACHER'S
ANNUAL SALARY.  ALTHOUGH THE LAW WAS INVALIDATED ON ENTANGLEMENT
GROUNDS, THE COURT MADE CLEAR THAT THE STATE COULD NOT HAVE AVOIDED
VIOLATING THE ESTABLISHMENT CLAUSE BY MERELY ASSUMING THAT ITS TEACHERS
WOULD SUCCEED IN SEGREAGATING "THEIR RELIGIOUS BELIEFS FROM THEIR
SECULAR EDUCATIONAL RESPONSIBILITIES."  403 U. S., AT 619. 

"THE RHODE ISLAND LEGISLATURE HAS NOT, AND COULD NOT, PROVIDE STATE
AID ON THE BASIS OF A MERE ASSUMPTION THAT SECULAR TEACHERS UNDER
RELIGIOUS DISCIPLINE CAN AVOID CONFLICTS.  THE STATE MUST BE CERTAIN,
GIVEN THE RELIGION CLAUSES, THAT SUBSIDIZED TEACHERS DO NOT INCULCATE
RELIGION . . . ."  IBID.  /35/  (EMPHASIS SUPPLIED.) 

NOR COULD THE STATE OF RHODE ISLAND HAVE PREVAILED BY SIMPLY RELYING
ON THE ASSUMPTION THAT, WHATEVER A SECULAR TEACHER'S INABILITIES TO
REFRAIN FROM MIXING THE RELIGIOUS WITH THE SECULAR, HE WOULD SURELY
DEVOTE AT LEAST 15% OF HIS EFFORTS TO PURELY SECULAR EDUCATION, THUS
EXHAUSTING THE STATE GRANT.  IT TAKES LITTLE IMAGINATION TO PERCEIVE
THE EXTENT TO WHICH STATES MIGHT OPENLY SUBSIDIZE PAROCHIAL SCHOOLS
UNDER SUCH A LOOSE STANDARD OF SCRUTINY.  SEE ALSO TILTON V.
RICHARDSON, SUPRA.  /36/ 

WHAT WE HAVE SAID DEMONSTRATES THAT NEW YORK'S MAINTENANCE AND
REPAIR PROVISIONS VIOLATE THE ESTABLISHMENT CLAUSE BECAUSE THEIR
EFFECT, INEVITABLY, IS TO SUBSIDIZE AND ADVANCE THE RELIGIOUS MISSION
OF SECTARIAN SCHOOLS.  WE HAVE NO OCCASION, THEREFORE, TO CONSIDER THE
FURTHER QUESTION WHETHER THOSE PROVISIONS AS PRESENTLY WRITTEN WOULD
ALSO FAIL TO SURVIVE SCRUTINY UNDER THE ADMINISTRATIVE ENTANGLEMENT
ASPECT OF THE THREE-PART TEST BECAUSE ASSURING THE SECULAR USE OF ALL
FUNDS REQUIRES TOO INTRUSIVE AND CONTINUING A RELATIONSHIP BETWEEN
CHURCH AND STATE, LEMON V. KURTZMAN, SUPRA.             B 

NEW YORK'S TUITION REIMBURSEMENT PROGRAM ALSO FAILS THE "EFFECT"
TEST, FOR MUCH THE SAME REASONS THAT GOVERN ITS MAINTENANCE AND REPAIR
GRANTS.  THE STATE PROGRAM IS DESIGNED TO ALLOW DIRECT, UNRESTRICTED
GRANTS OF $50 TO $100 PER CHILD (BUT NO MORE THAN 50% OF TUITION
ACTUALLY PAID) AS REIMBURSEMENT TO PARENTS IN LOW-INCOME BRACKETS WHO
SEND THEIR CHILDREN TO NONPUBLIC SCHOOLS, THE BULK OF WHICH IS
CONCEDEDLY SECTARIAN IN ORIENTATION.  TO QUALIFY, A PARENT MUST HAVE
EARNED LESS THAN $5,000 IN TAXABLE INCOME AND MUST PRESENT A RECEIPTED
TUITION BILL FROM A NONPUBLIC SCHOOL. 

THERE CAN BE NO QUESTION THAT THESE GRANTS COULD NOT, CONSISTENTLY
WITH THE ESTABLISHMENT CLAUSE, BE GIVEN DIRECTLY TO SECTARIAN SCHOOLS,
SINCE THEY WOULD SUFFER FROM THE SAME DEFICIENCY THAT RENDERS INVALID
THE GRANTS FOR MAINTENANCE AND REPAIR.  IN THE ABSENCE OF AN EFFECTIVE
MEANS OF GUARANTEEING THAT THE STATE AID DERIVED FROM PUBLIC FUNDS WILL
BE USED EXCLUSIVELY FOR SECULAR, NEUTRAL, AND NONIDEOLOGICAL PURPOSES,
IT IS CLEAR FROM OUR CASES THAT DIRECT AID IN WHATEVER FORM IS
INVALID.  AS MR. JUSTICE BLACK PUT IT QUITE SIMPLY IN EVERSON: 

"NO TAX IN ANY AMOUNT, LARGE OR SMALL, CAN BE LEVIED TO SUPPORT ANY
RELIGIOUS ACTIVITIES OR INSTITUTIONS, WHATEVER THEY MAY BE CALLED, OR
WHATEVER FORM THEY MAY ADOPT TO TEACH OR PRACTICE RELIGION."  330 U.
S., AT 26. 

THE CONTROLLING QUESTION HERE, THEN, IS WHETHER THE FACT THAT THE
GRANTS ARE DELIVERED TO PARENTS RATHER THAN SCHOOLS IS OF SUCH
SIGNIFICANCE AS TO COMPEL A CONTRARY RESULT.  THE STATE AND INTERVENOR
APPELLEES RELY ON EVERSON AND ALLEN FOR THEIR CLAIM THAT GRANTS TO
PARENTS, UNLIKE GRANTS TO INSTITITUIONS, RESPECT THE "WALL OF
SEPARATION" REQUIRED BY THE CONSTITUTION.  /37/  IT IS TRUE THAT IN
THOSE CASES THE COURT UPHELD LAWS THAT PROVIDED BENEFITS TO CHILDREN
ATTENDING RELIGIOUS SCHOOLS AND TO THEIR PARENTS:  AS NOTED ABOVE, IN
EVERSON PARENTS WERE REIMBURSED FOR BUS FARES PAID TO SEND CHILDREN TO
PAROCHIAL SCHOOLS, AND IN ALLEN TEXTBOOKS WERE LOANED DIRECTLY TO THE
CHILDREN.  BUT THOSE DECISIONS MAKE CLEAR THAT, FAR FROM PROVIDING A
PER SE IMMUNITY FROM EXAMINATION OF THE SUBSTANCE OF THE STATE'S
PROGRAM, THE FACT THAT AID IS DISBURSED TO PARENTS RATHER THAN TO THE
SCHOOLS IS ONLY ONE AMONG MANY FACTORS TO BE CONSIDERED. 

IN EVERSON, THE COURT FOUND THE BUS FARE PROGRAM ANALOGOUS TO THE
PROVISION OF SERVICES SUCH AS POLICE AND FIRE PROTECTION, SEWAGE
DISPOSAL, HIGHWAYS, AND SIDEWALKS FOR PAROCHIAL SCHOOLS.  330 U. S., AT
17 - 18.  SUCH SERVICES, PROVIDED IN COMMON TO ALL CITIZENS, ARE "SO
SEPARATE AND SO INDISPUTABLY MARKED OFF FROM THE RELIGIOUS FUNCTION,"
ID., AT 18, THAT THEY MAY FAIRLY BE VIEWED AS REFLECTIONS OF A NEUTRAL
POSTURE TOWARD RELIGIOUS INSTITUTIONS.  ALLEN IS FOUNDED UPON A SIMILAR
PRINCIPLE.  THE COURT THERE REPEATEDLY EMPHASIZED THAT UPON THE RECORD
IN THAT CASE THERE WAS NO INDICATION THAT TEXTBOOKS WOULD BE PROVIDED
FOR ANYTHING OTHER THAN PURELY SECULAR COURSES.  "OF COURSE BOOKS ARE
DIFFERENT FROM BUSES.  MOST BUS RIDES HAVE NO INHERENT RELIGIOUS
SIGNIFICANCE, WHILE RELIGIOUS BOOKS ARE COMMON.  HOWEVER, THE LANGUAGE
OF (THE LAW UNDER CONSIDERATION) DOES NOT AUTHORIZE THE LOAN OF
RELIGIOUS BOOKS, AND THE STATE CLAIMS NO RIGHT TO DISTRIBUTE RELIGIOUS
LITERATURE.  . . . ABSENT EVIDENCE, WE CANNOT ASSUME THAT SCHOOL
AUTHORITIES . . . ARE UNABLE TO DISTINGUISH BETWEEN SECULAR AND
RELIGIOUS BOOKS OR THAT THEY WILL HONESTLY DISCHARGE THEIR DUTIES UNDER
THE LAW."  392 U. S., AT 244 - 245.  /38/ 

THE TUITION GRANTS HERE ARE SUBJECT TO NO SUCH RESTRICTION.  THERE
HAS BEEN NO ENDEAVOR "TO GUARANTEE THE SEPARATION BETWEEN SECULAR AND
RELIGIOUS EDUCATIONAL FUNCTIONS AND TO ENSURE THAT STATE FINANCIAL AID
SUPPORTS ONLY THE FORMER."  LEMON V. KURTZMAN, SUPRA, AT 613.  INDEED,
IT IS PRECISELY THE FUNCTION OF NEW YORK'S LAW TO PROVIDE ASSISTANCE TO
PRIVATE SCHOOLS, THE GREAT MAJORITY OF WHICH ARE SECTARIAN.  BY
REIMBURSING PARENTS FOR A PORTION OF THEIR TUITION BILL, THE STATE
SEEKS TO RELIEVE THEIR FINANCIAL BURDENS SUFFICIENTLY TO ASSURE THAT
THEY CONTINUE TO HAVE THE OPTION TO SEND THEIR CHILDREN TO RELIGION
ORIENTED SCHOOLS.  AND WHILE THE OTHER PURPOSES FOR THAT AID--TO
PERPETUATE A PLURALISTIC EDUCATIONAL ENVIRONMENT AND TO PROTECT THE
FISCAL INTEGRITY OF OVERBURDENED PUBLIC SCHOOLS--ARE CERTAINLY
UNEXCEPTIONABLE, THE EFFECT OF THE AID IS UNMISTAKABLY TO PROVIDE
DESIRED FINANCIAL SUPPORT FOR NONPUBLIC, SECTARIAN INSTITUTIONS.  /39/ 

MR. JUSTICE BLACK, DISSENTING IN ALLEN, WARNED THAT 

"(IT REQUIRES NO PROPHET TO FORESEE THAT ON THE ARGUMENT USED TO
SUPPORT THIS LAW OTHERS COULD BE UPHELD PROVIDING FOR STATE OR FEDERAL
GOVERNMENT FUNDS TO BUY PROPERTY ON WHICH TO ERECT RELIGIOUS SCHOOL
BUILDINGS OR TO ERECT THE BUILDINGS THEMSELVES, TO PAY THE SALARIES OF
THE RELIGIOUS SCHOOL TEACHERS, AND FINALLY TO HAVE THE SECTARIAN
RELIGIOUS GROUPS CEASE TO RELY ON VOLUNTARY CONTRIBUTIONS OF MEMBERS OF
THEIR SECTS WHILE WAITING FOR THE GOVERNMENT TO PICK UP ALL THE BILLS
FOR THE RELIGIOUS SCHOOLS."  392 U. S., AT 253. 

HIS FEARS REGARDING RELIGIOUS BUILDINGS AND RELIGIOUS TEACHERS HAVE
NOT COME TO PASS, TILTON V. RICHARDSON, SUPRA; LEMON V. KURTZMAN,
SUPRA, AND INSOFAR AS TUITION GRANTS CONSTITUTE A MEANS OF "PICKING) UP
. . . THE BILLS FOR THE RELIGIOUS SCHOOLS," NEITHER HAS HIS GREATEST
FEAR MATERIALIZED.  BUT THE INGENIOUS PLANS FOR CHANNELING STATE AID TO
THE WISDOM OF MR. JUSTICE BLACK'S PROPHECY. 

ALTHOUGH WE THINK IT CLEAR, FOR THE REASONS ABOVE STATED, THAT NEW
YORK'S TUITION GRANT PROGRAM FARES NO BETTER UNDER THE "EFFECT" TEST
THAN ITS MAINTENANCE AND REPAIR PROGRAM, IN VIEW OF THE NOVELTY OF THE
QUESTION WE WILL ADDRESS BRIEFLY THE SUBSIDIARY ARGUMENTS MADE BY THE
STATE OFFICIALS AND INTERVENORS IN ITS DEFENSE. 

FIRST, IT HAS BEEN SUGGESTED THAT IT IS OF CONTROLLING SIGNIFICANCE
THAT NEW YORK'S PROGRAM CALLS FOR REIMBURSEMENT FOR TUITION ALREADY
PAID RATHER THAN FOR DIRECT CONTRIBUTIONS WHICH ARE MERELY ROUTED
THROUGH THE PARENTS TO THE SCHOOLS, IN ADVANCE OF OR IN LIEU OF PAYMENT
BY THE PARENTS.  THE PARENT IS NOT A MERE CONDUIT, WE ARE TOLD, BUT IS
ABSOLUTELY FREE TO SPEND THE MONEY HE RECEIVES IN ANY MANNER HE
WISHES.  THERE IS NO ELEMENT OF COERCION ATTACHED TO THE REIMBURSEMENT,
AND NO ASSURANCE THAT THE MONEY WILL EVENTUALLY END UP IN THE HANDS OF
RELIGIOUS SCHOOLS.  THE ABSENCE OF ANY ELEMENT OF COERCION, HOWEVER, IS
IRRELEVANT TO QUESTIONS ARISING UNDER THE ESTABLISHMENT CLAUSE.  IN
SCHOOL DISTRICT OF ABINGTON TOWNSHIP V. SCHEMPP, SUPRA, IT WAS
CONTENDED THAT BIBLE RECITATIONS IN PUBLIC SCHOOLS DID NOT VIOLATE THE
ESTABLISHMENT CLAUSE BECAUSE PARTICIPATION IN SUCH EXERCISES WAS NOT
COERCED.  THE COURT REJECTED THAT ARGUMENT, NOTING THAT WHILE PROOF OF
COERCION MIGHT PROVIDE A BASIS FOR A CLAIM UNDER THE FREE EXERCISE
CLAUSE, IT WAS NOT A NECESSARY ELEMENT OF ANY CLAIM UNDER THE
ESTABLISHMENT CLAUSE.  374 U. S., AT 222 - 223.  MR. JUSTICE BRENNAN'S
CONCURRING VIEWS REITERATED THE COURT'S CONCLUSION: 

"THUS THE SHORT, AND TO ME SUFFICIENT, ANSWER IS THAT THE
AVAILABILITY OF EXCUSAL OR EXEMPTION SIMPLY HAS NO RELEVANCE TO THE
ESTABLISHMENT QUESTION, IF IT IS ONCE FOUND THAT THESE PRACTICES ARE
ESSENTIALLY RELIGIOUS EXERCISES DESIGNED AT LEAST IN PART TO ACHIEVE
RELIGIOUS AIMS . . . ."  ID., AT 288. 

A SIMILAR INQUIRY GOVERNS HERE:  IF THE GRANTS ARE OFFERED AS AN
INCENTIVE TO PARENTS TO SEND THEIR CHILDREN TO SECTARIAN SCHOOLS BY
MAKING UNRESTRICTED CASH PAYMENTS TO THEM, THE ESTABLISHMENT CLAUSE IS
VIOLATED WHETHER OR NOT THE ACTUAL DOLLARS GIVEN EVENTUALLY FIND THEIR
WAY INTO THE SECTARIAN INSTITUTIONS.  /40/  WHETHER THE GRANT IS
LABELED A REIMBURSEMENT, A REWARD, OR A SUBSIDY, ITS SUBSTANTIVE IMPACT
IS STILL THE SAME.  IN SUM, WE AGREE WITH THE CONCLUSION OF THE
DISTRICT COURT THAT "(WHETHER HE GETS IT DURING THE CURRENT YEAR, OR AS
REIMBURSEMENT FOR THE PAST YEAR, IS OF NO CONSTITUTIONAL IMPORTANCE." 
350 F. SUPP., AT 668. 

SECOND, THE MAJORITY LEADER AND PRESIDENT PRO TEM OF THE STATE SENATE
ARGUES THAT IT IS SIGNIFICANT HERE THAT THE TUITION REIMBURSEMENT
GRANTS PAY ONLY A PORTION OF THE TUITION BILL, AND AN EVEN SMALLER
PORTION OF THE RELIGIOUS SCHOOL'S TOTAL EXPENSES.  THE NEW YORK STATUTE
LIMITS REIMBURSEMENT TO 50% OF ANY PARENT'S ACTUAL OUTLAY. 
ADDITIONALLY, INTERVENOR ESTIMATES THAT ONLY 30% OF THE TOTAL COST OF
NONPUBLIC EDUCATION IS COVERED BY TUITION PAYMENTS, WITH THE REMAINING
COMING FROM "VOLUNTARY CONTRIBUTION, ENDOWNMENTS AND THE LIKE."  /41/
ON THE BASIS OF THESE TWO STATISTICS, APPELLEE REASONS THAT THE
"MAXIMUM TUITION REIMBURSEMENT BY THE STATE IS THUS ONLY 15% OF
EDUCATIONAL COSTS IN THE NONPUBLIC SCHOOLS."  /42/  AND, "SINCE THE
COMPULSORY EDUCATION LAWS OF THE STATE, BY NECESSITY REQUIRE
SIGNIFICANTLY MORE THAN 15% OF SCHOOL TIME TO BE DEVOTED TO TEACHING
SECULAR COURSES, THE NEW YORK STATUTE PROVIDES "A STATISTICAL GUARANTEE
OF NEUTRALITY."  /43/  IT SHOULD READILY BE SEEN THAT THIS IS SIMPLY
ANOTHER VARIANT OF THE ARGUMENT WE HAVE REJECTED AS TO MAINTENANCE AND
REPAIR COSTS, SUPRA, AT 777 - 779, AND IT CAN FARE NO BETTER HERE. 
OBVIOUSLY, IF ACCEPTED, THIS ARGUMENT WOULD PROVIDE THE FOUNDATION FOR
MASSIVE, DIRECT SUBSIDIZATION OF SECTARIAN ELEMENTARY AND SECONDARY
SCHOOLS.  /44/  OUR CASES, HOWEVER, HAVE LONG SINCE FORECLASED THE
NOTION THAT MERE STATISTICAL ASSURANCES WILL SUFFICE TO SAIL BETWEEN
THE SCYLLA AND CHARYBDIS OF "EFFECT" AND "ENTANGLEMENT." 

FINALLY, THE STATE ARGUES THAT ITS PROGRAM OF TUITION GRANTS SHOULD
SURVIVE SCRUTINY BECAUSE IT IS DESIGNED TO PROMOTE THE FREE EXERCISE OF
RELIGION.  THE STATE NOTES THAT ONLY "LOW-INCOME PARENTS" ARE AIDED BY
THIS LAW, AND WITHOUT STATE ASSISTANCE THEIR RIGHT TO HAVE THEIR
CHILDREN EDUCATED IN A RELIGIOUS ENVIRONMENT "IS DIMINISHED OR EVEN
DENIED."  /45/  IT IS TRUE, OF COURSE, THAT THIS COURT HAS LONG
RECOGNIZED AND MAINTAINED THE RIGHT TO CHOOSE NONPUBLIC OVER PUBLIC
EDUCATION.  PIERCE V. SOCIETY OF SISTERS, 268 U. S. 510 (1925).  IT IS
ALSO TRUE THAT A STATE LAW INTERFERING WITH A PARENT'S RIGHT TO HAVE
HIS CHILD EDUCATED IN A SECTARIAN SCHOOL WOULD RUN AFOUL OF THE FREE
EXERCISE CLAUSE.  BUT THIS COURT REPEATEDLY HAS RECOGNIZED THAT TENSION
INEVITABLY EXISTS BETWEEN THE FREE EXERCISE AND THE ESTABLISHMENT
CLAUSES, E. G., EVERSON V. BOARD OF EDUCATION, SUPRA; WALZ V. TAX
COMM'N, SUPRA, AND THAT IT MAY OFTEN NOT BE POSSIBLE TO PROMOTE THE
FORMER WITHOUT OFFENDING THE LATTER.  AS A RESULT OF THIS TENSION, OUR
CASES REQUIRE THE STATE TO MAINTAIN AN ATTITUDE OF "NEUTRALITY,"
NEITHER "ADVANCING" NOR "INHIBITING" RELIGION.  /46/  IN ITS ATTEMPT TO
ENHANCE THE OPPORTUNITIES OF THE POOR TO CHOOSE BETWEEN PUBLIC AND
NONPUBLIC EDUCATION, THE STATE HAS TAKEN A STEP WHICH CAN ONLY BE
REGARDED AS ONE "ADVANCING" RELIGION.  HOWEVER GREAT OUR SYMPATHY,
EVERSON V. BOARD OF EDUCATION, 330 U. S., AT 18 (JACKSON, J.,
DISSENTING), FOR THE BURDENS EXPERIENCED BY THOSE WHO MUST PAY PUBLIC
SCHOOL TAXES AT THE SAME TIME THAT THEY SUPPORT OTHER SCHOOLS BECAUSE
OF THE CONSTRAINTS OF "CONSCIENCE AND DISCIPLINE," IBID., AND
NOTWITHSTANDING THE "HIGH SOCIAL IMPORTANCE" OF THE STATE'S PURPOSES,
WISCONSIN V. YODER, 406 U. S. 205, 214 (1972), NEITHER MAY JUSTIFY AN
ERODING OF THE LIMITATIONS OF THE ESTABLISHMENT CLAUSE NOW FIRMLY
EMPLANTED. 

        C 

BENEFITS TO PARENTS OF CHILDREN ATTENDING NEW YORK'S NONPUBLIC
SCHOOLS.  IN THIS COURT, THE PARTIES HAVE ENGAGED IN A CONSIDERABLE
DEBATE OVER WHAT LABEL BEST FITS THE NEW YORK LAW.  APPELLANTS INSIST
THAT THE LAW IS, IN EFFECT, ONE ESTABLISHING A SYSTEM OF TAX
"CREDITS."  THE STATE AND THE INTERVENORS REJECT THAT CHARACTERIZATION
AND WOULD LABEL IT, INSTEAD, A SYSTEM OF INCOME TAX "MODIFICATIONS." 
THE SOLICITOR GENERAL, IN AN AMICUS CURIAE BRIEF FILED IN THIS COURT,
HAS REFERRED THROUGHOUT TO THE NEW YORK LAW AS ONE AUTHORIZING TAX
"DEDUCTIONS."  THE DISTRICT COURT MAJORITY FOUND THAT THE AID WAS "IN
EFFECT A TAX CREDIT," 350 F. SUPP., AT 672 (EMPHASIS IN ORIGINAL). 
BECAUSE OF THE PECULIAR NATURE OF THE BENEFIT ALLOWED, IT IS DIFFICULT
TO ADOPT ANY SINGLE TRADITIONAL LABEL LIFTED FROM THE LAW OF INCOME
TAXATION.  IT IS, AT LEAST IN ITS FORM, A TAX DEDUCTION SINCE IT IS AN
AMOUNT SUBTRACTED FROM ADJUSTED GROSS INCOME, PRIOR TO COMPUTATION OF
THE TAX DUE.  ITS EFFECT, AS THE DISTRICT COURT CONCLUDED, IS MORE LIKE
THAT OF A TAX CREDIT SINCE THE DEDUCTION IS NOT RELATED TO THE AMOUNT
ACTUALLY SPENT FOR TUITION AND IS APPARENTLY DESIGNED TO YIELD A
PREDETERMINED AMOUNT OF TAX "FORGIVENESS" IN EXCHANGE FOR PERFORMING A
APECIFIC ACT WHICH THE STATE DESIRES TO ENCOURAGE--THE USUAL ATTRIBUTE
OF A TAX CREDIT.  WE SEE NO REASON TO SELECT ONE LABEL OVER ANOTHER, AS
THE CONSTITUTIONALITY OF THIS HYBRID BENEFIT DOES NOT TURN IN ANY EVENT
ON THE LABEL WE ACCORD IT.  AS MR. CHIEF JUSTICE BURGER'S OPINION FOR
THE COURT IN LEMON V. KURTZMAN, 403 U. S., AT 614, NOTES,
CONSTITUTIONAL ANALYSIS IS NOT A "LEGALISTIC MINUET IN WHICH PRECISE
RULES AND FORMS MUST GOVERN."  INSTEAD WE MUST "EXAMINE THE FORM OF THE
RELATIONSHIP FOR THE LIGHT THAT IT CASTS ON THE SUBSTANCE." 

THESE SECTIONS ALLOW PARENTS OF CHILDREN ATTENDING NONPUBLIC
ELEMENTARY AND SECONDARY SCHOOLS TO SUBTRACT FROM ADJUSTED GROSS INCOME
A SPECIFIED AMOUNT IF THEY DO NOT RECEIVE A TUITION REIMBURSEMENT UNDER
^ 2, AND IF THEY HAVE AN ADJUSTED GROSS INCOME OF LESS THAT
$25,000. THE AMOUNT OF THE DEDUCTION IS UNRELATED TO THE AMOUNT OF
MONEY ACTUALLY EXPENDED BY ANY PARENT ON TUITION, BUT IS CALCULATED ON
THE BASIS OF A FORMULA CONTAINED IN THE STATUTE.  /47/  THE FORMULA IS
APPARENTLY THE PRODUCT OF A LEGISLATIVE ATTEMPT TO ASSURE THAT EACH
FAMILY WOULD RECEIVE A CAREFULLY ESTIMATED NET BENEFIT, AND THAT THE
TAX BENEFIT WOULD BE COMPARABLE TO, AND COMPATIBLE WITH, THE TUITION
GRANT FOR LOWER INCOME FAMILIES.  THUS, A PARENT WHO EARNS LESS THAN
$5,000 IS ENTITLED TO A TUITION REIMBURSEMENT OF $50 IF HE HAS ONE
CHILD ATTENDING AN ELEMENTARY, NONPUBLIC SCHOOL, WHILE A PARENT WHO
EARNS MORE (BUT LESS THAN $9,000) IS ENTITLED TO HAVE A PRECISELY EQUAL
AMOUNT TAKEN OFF HIS TAX BILL.  /48/  ADDITIONALLY, A TAXPAYER'S
BENEFIT UNDER THESE SECTIONS IS UNRELATED TO, AND NOT REDUCED BY, ANY
DEDUCTIONS TO WHICH HE MAY BE ENTITLED FOR CHARITABLE CONTRIBUTIONS TO
RELIGIOUS INSTITUTIONS.  /49/ 

IN PRACTICAL TERMS THERE WOULD APPEAR TO BE LITTLE DIFFERENCE, FOR
PURPOSES OF DETERMINING WHETHER SUCH AID HAS THE EFFECT OF ADVANCING
RELIGION, BETWEEN THE TAX BENEFIT ALLOWED HERE AND THE TUITION GRANT
ALLOWED UNDER ^ 2.  THE QUALIFYING PARENT UNDER EITHER PROGRAM RECEIVES
THE SAME FORM OF ENCOURAGEMENT AND REWARD FOR SENDING HIS CHILDREN TO
NONPUBLIC SCHOOLS.  THE ONLY DIFFERENCE IS THAT ONE PARENT RECEIVES AN
ACTUAL CASH PAYMENT WHILE THE OTHER IS ALLOWED TO REDUCE BY AN
ARBITRARY AMOUNT THE SUM HE WOULD OTHERWISE BE OBLIGED TO PAY OVER TO
THE STATE.  WE SEE NO ANSWER TO JUDGE HAYS' DISSENTING STATEMENT BELOW
THAT "(IN BOTH INSTANCES THE MONEY INVOLVED REPRESENTS A CHARGE MADE
UPON THE STATE FOR THE PURPOSE OF RELIGIOUS EDUCATION."  350 F. SUPP.,
AT 675. 

APPELLEES DEFEND THE TAX PORTION OF NEW YORK'S LEGISLATIVE PACKAGE
ON TWO GROUNDS.  FIRST, THEY CONTEND THAT IT IS OF CONTROLLING
SIGNIFICANCE THAT THE GRANTS OR CREDITS ARE DIRECTED TO THE PARENTS
RATHER THAN TO THE SCHOOLS.  THIS IS THE SAME ARGUMENT MADE IN SUPPORT
OF THE TUITION REIMBURSEMENTS AND RESTS ON THE SAME READING OF THE SAME
PRECEDENTS OF THIS COURT, PRIMARILY EVERSON AND ALLEN.  OUR TREATMENT
OF THIS ISSUE IN PART II-B, SUPRA, AT 780 - 785, IS APPLICABLE HERE AND
REQUIRES REJECTION OF THIS CLAIM.  /50/  SECOND, APPELLEES PLACE THEIR
STRONGEST RELIANCE ON WALZ V. TAX COMM'N, SUPRA, IN WHICH NEW YORK'S
PROPERTY TAX EXEMPTION FOR RELIGIOUS ORGANIZATIONS WAS UPHELD.  WE
THINK THAT WALZ PROVIDES NO SUPPORT FOR APPELLEES' POSITION.  INDEED,
ITS RATIONALE PLAINLY COMPELS THE CONCLUSION THAT NEW YORK'S TAX
PACKAGE VIOLATES THE ESTABLISHMENT CLAUSE. 

TAX EXEMPTIONS FOR CHURCH PROPERTY ENJOYED AN APPARENTLY UNIVERSAL
APPROVAL IN THIS COUNTRY BOTH BEFORE AND AFTER THE ADOPTION OF THE
FIRST AMENDMENT.  THE COURT IN WALZ SURVEYED THE HISTORY OF TAX
EXEMPTIONS AND FOUND THAT EACH OF THE 50 STATES HAS LONG PROVIDED FOR
TAX EXEMPTIONS FOR PLACES OF WORSHIP, THAT CONGRESS HAS EXEMPTED
RELIGIOUS ORGANIZATIONS FROM TAXATION FOR OVER THREE-QUARTERS OF A
CENTURY, AND THAT CONGRESSIONAL ENACTMENTS IN 1802, 1813, AND 1870
SPECIFICALLY EXEMPTED CHURCH PROPERTY FROM TAXATION.  IN SUM, THE COURT
CONCLUDED THAT "(FEW CONCEPTS ARE MORE DEEPLY EMBEDDED IN THE FABRIC OF
OUR NATIONAL LIFE, BEGINNING WITH PREREVOLUTIONARY COLONIAL TIMES, THAN
FOR THE GOVERNMENT TO EXERCISE AT THE VERY LEAST THIS KIND OF
BENEVOLENT NEUTRALITY TOWARD CHURCHES AND RELIGIOUS EXERCISE
GENERALLY."  397 U. S., AT 676 - 677.  /51/  WE KNOW OF NO HISTORICAL
PRECEDENT FOR NEW YORK'S RECENTLY PROMULGATED TAX RELIEF PROGRAM. 
INDEED, IT SEEMS CLEAR THAT TAX BENEFITS FOR PARENTS WHOSE CHILDREN
ATTEND PAROCHIAL SCHOOLS ARE A RECENT INNOVATION, OCCASIONED BY THE
GROWING FINANCIAL PLIGHT OF SUCH NONPUBLIC INSTITUTIONS AND DESIGNED,
ALBEIT UNSUCCESSFULLY, TO TAILOR STATE AID IN A MANNER NOT INCOMPATIBLE
WITH THE RECENT DECISIONS OF THIS COURT.  SEE KOSYDAR V. WOLMAN, 353 F.
SUPP. 744 (SD OHIO 1972), AFF'D SUB NOM. GRIT V. WOLMAN, 413 U. S. 901
(PRELIMINARY PRINT PART 2). 

BUT HISTORICAL ACCEPTANCE WITHOUT MORE WOULD NOT ALONE HAVE SUFFICED,
AS "NO ONE ACQUIRES A VESTED OR PROTECTED RIGHT IN VIOLATION OF THE
CONSTITUTION BY LONG USE."  WALZ, 397 U. S., AT 678.  IT WAS THE REASON
UNDERLYING THAT LONG HISTORY OF TOLERANCE OF TAX EXEMPTIONS FOR
RELIGION THAT PROVED CONTROLLING.  A PROPER RESPECT FOR BOTH THE FREE
EXERCISE AND THE ESTABLISHMENT CLAUSES COMPELS THE STATE TO PURSUE A
COURSE OF "NEUTRALITY" TOWARD RELIGION.  YET GOVERNMENTS HAVE NOT
ALWAYS PURSUED SUCH A COURSE, AND OPPRESSION HAS TAKEN MANY FORMS, ONE
OF WHICH HAS BEEN TAXATION OF RELIGION.  THUS, IF TAXATION WAS REGARDED
AS A FORM OF "HOSTILITY" TOWARD RELIGION, "EXEMPTION CONSTITUTED) A
REASONABLE AND BALANCED ATTEMPT TO GUARD AGAINST THOSE DANGERS."  ID.,
AT 673.  SPECIAL TAX BENEFITS, HOWEVER, CANNOT BE SQUARED WITH THE
PRINCIPLE OF NEUTRALITY ESTABLISHED BY THE DECISIONS OF THIS COURT.  TO
THE CONTRARY, INSOFAR AS SUCH BENEFITS RENDER ASSISTANCE TO PARENTS WHO
SEND THEIR CHILDREN TO SECTARIAN SCHOOLS, THEIR PURPOSE AND INEVITABLE
EFFECT ARE TO AID AND ADVANCE THOSE RELIGIOUS INSTITUTIONS. 

APART FROM ITS HISTORICAL FOUNDATIONS, WALZ IS A PRODUCT OF THE SAME
DILEMMA AND INHERENT TENSION FOUND IN MOST GOVERNMENT-AID-TO-RELIGION
CONTROVERSIES.  TO BE SURE, THE EXEMPTION OF CHURCH PROPERTY FROM
TAXATION CONFERRED A BENEFIT, ALBEIT AN INDIRECT AND INCIDENTAL ONE. 
YET THAT "AID" WAS A PRODUCT NOT OF ANY PURPOSE TO SUPPORT OR TO
SUBSIDIZE, BUT OF A FISCAL RELATIONSHIP DESIGNED TO MINIMIZE
INVOLVEMENT AND ENTANGLEMENT BETWEEN CHURCH AND STATE.  "THE
EXEMPTION," THE COURT EMPHASIZED, "TENDS TO COMPLEMENT AND REINFORCE
THE DESIRED SEPARATION INSULATING EACH FROM THE OTHER."  ID., AT 676. 
FURTHERMORE, "(ELIMINATION OF THE EXEMPTION WOULD TEND TO EXPAND THE
INVOLVEMENT OF GOVERNMENT BY GIVING RISE TO TAX VALUATION OF CHURCH
PROPERTY, TAX LIENS, TAX FORECLOSURES, AND THE DIRECT CONFRONTATIONS
AND CONFLICTS THAT FOLLOW IN THE TRAIN OF THOSE LEGAL PROCESSES."  ID.,
AT 674.  THE GRANTING OF THE TAX BENEFITS UNDER THE NEW YORK STATUTE,
UNLIKE THE EXTENSION OF AN EXEMPTION, WOULD TEND TO INCREASE RATHER
THAN LIMIT THE INVOLVEMENT BETWEEN CHURCH AND STATE. 

ONE FURTHER DIFFERENCE BETWEEN TAX EXEMPTIONS FOR CHURCH PROPERTY
AND TAX BENEFITS FOR PARENTS SHOULD BE NOTED.  THE EXEMPTION CHALLENGED
IN WALZ WAS NOT RESTRICTED TO A CLASS COMPOSED EXCLUSIVELY OR EVEN
PREDOMINANTLY OF RELIGIOUS INSTITUTIONS.  INSTEAD, THE EXEMPTION
COVERED ALL PROPERTY DEVOTED TO RELIGIOUS, EDUCATIONAL, OR CHARITABLE
PURPOSES.  AS THE PARTIES HERE MUST CONCEDE, TAX REDUCTIONS AUTHORIZED
BY THIS LAW FLOW PRIMARILY TO THE PARENTS OF CHILDREN ATTENDING
ALONE MIGHT HAVE CONTROLLING SIGNIFICANCE IN ANOTHER CONTEXT IN SOME
FUTURE CASE, IT SHOULD BE APPARENT THAT IN TERMS OF THE POTENTIAL
DIVISIVENESS OF ANY LEGISLATIVE MEASURE THE NARROWNESS OF THE BENEFITED
CLASS WOULD BE AN IMPORTANT FACTOR.  /52/ 

IN CONCLUSION, WE FIND THE WALZ ANALOGY UNPERSUASIVE, AND IN LIGHT
OF THE PRACTICAL SIMILARITY BETWEEN NEW YORK'S TAX AND TUITION
REIMBURSEMENT PROGRAMS, WE HOLD THAT NEITHER FORM OF AID IS
SUFFICIENTLY RESTRICTED TO ASSURE THAT IT WILL NOT HAVE THE
IMPERMISSIBLE EFFECT OF ADVANCING THE SECTARIAN ACTIVITIES OF RELIGIOUS
SCHOOLS. 

        III 

BECAUSE WE HAVE FOUND THAT THE CHALLENGED SECTIONS HAVE THE
IMPERMISSIBLE EFFECT OF ADVANCING RELIGION, WE NEED NOT CONSIDER
WHETHER SUCH AID WOULD RESULT IN ENTANGLEMENT OF THE STATE WITH
RELIGION IN THE SENSE OF "(A) COMPREHENSIVE, DISCRIMINATING, AND
CONTINUING STATE SURVEILLANCE."  LEMON V. KURTZMAN, 403 U. S., AT 619. 
BUT THE IMPORTANCE OF THE COMPETING SOCIETAL INTERESTS IMPLICATED HERE
PROMPTS US TO MAKE THE FURTHER OBSERVATION THAT, APART FROM ANY
SPECIFIC ENTANGLEMENT OF THE STATE IN PARTICULAR RELIGIOUS PROGRAMS,
ASSISTANCE OF THE SORT HERE INVOLVED CARRIES GRAVE POTENTIAL FOR
ENTANGLEMENT IN THE BROADER SENSE OF CONTINUING POLITICAL STRIFE OVER
AID TO RELIGION. 

FEW WOULD QUESTION MOST OF THE LEGISLATIVE FINDINGS SUPPORTING THIS
STATUTE.  WE RECOGNIZED IN BOARD OF EDUCATION V. ALLEN, 392 U. S., AT
247, THAT "PRIVATE EDUCATION HAS PLAYED AND IS PLAYING A SIGNIFICANT
AND VALUABLE ROLE IN RAISING NATIONAL LEVELS OF KNOWLEDGE, COMPETENCE,
AND EXPERIENCE," AND CERTAINLY PRIVATE PAROCHIAL SCHOOLS HAVE
CONTRIBUTED IMPORTANTLY TO THIS ROLE.  MOREOVER, THE TAILORING OF THE
NEW YORK STATUTE TO CHANNEL THE AID PROVIDED PRIMARILY TO AFFORD LOW
INCOME FAMILIES THE OPTION OF DETERMINING WHERE THEIR CHILDREN ARE TO
BE EDUCATED IS MOST APPEALING.  /53/  THERE IS NO DOUBT THAT THE
PRIVATE SCHOOLS ARE CONFRONTED WITH INCREASINGLY GRAVE FISCAL PROBLEMS,
THAT RESOLVING THESE PROBLEMS BY INCREASING TUITION CHARGES FORCES
PARENTS TO TURN TO THE PUBLIC SCHOOLS, AND THAT THIS IN TURN--AS THE
PRESENT LEGISLATION RECOGNIZES--EXACERBATES THE PROBLEMS OF PUBLIC
EDUCATION AT THE SAME TIME THAT IT WEAKENS SUPPORT FOR THE PAROCHIAL
SCHOOLS. 

THESE, IN BRIEFEST SUMMARY, ARE THE UNDERLYING REASONS FOR THE NEW
YORK LEGISLATION AND FOR SIMILAR LEGISLATION IN OTHER STATES.  THEY ARE
SUBSTANTIAL REASONS.  YET THEY MUST BE WEIGHED AGAINST THE RELEVANT
PROVISIONS AND PURPOSES OF THE FIRST AMENDMENT, WHICH SAFEGUARD THE
SEPARATION OF CHURCH FROM STATE AND WHICH HAVE BEEN REGARDED FROM THE
BEGINNING AS AMONG THE MOST CHERISHED FEATURES OF OUR CONSTITUTIONAL
SYSTEM. 

ONE FACTOR OF RECURRING SIGNIFICANCE IN THIS WEIGHING PROCESS IS THE
POTENTIALLY DIVISIVE POLITICAL EFFECT OF AN AID PROGRAM.  AS MR.
JUSTICE BLACK'S OPINION IN EVERSON V. BOARD OF EDUCATION, SUPRA,
EMPHASIZES, COMPETITION AMONG RELIGIOUS SECTS FOR POLITICAL AND
RELIGIOUS SUPREMACY HAS OCCASIONED CONSIDERABLE CIVIL STRIFE,
"GENERATED IN LARGE PART" BY COMPETING EFFORTS TO GAIN OR MAINTAIN THE
SUPPORT OF GOVERNMENT.  330 U. S., AT 8 - 9.  AS MR. JUSTICE HARLAN PUT
IT, "(WHAT IS AT STAKE AS A MATTER OF POLICY (INESTABLISHMENT CLAUSE
CASES) IS PREVENTING THAT KIND AND DEGREE OF GOVERNMENT INVOLVEMENT IN
RELIGIOUS LIFE THAT, AS HISTORY TEACHES US, IS APT TO LEAD TO STRIFE
AND FREQUENTLY STRAIN A POLITICAL SYSTEM TO THE BREAKING POINT."  WALZ
V. TAX COMM'N, 397 U. S., AT 694 (SEPARATE OPINION). 

THE COURT RECENTLY ADDRESSED THIS ISSUE SPECIFICALLY AND FULLY IN
LEMON V. KURTZMAN.  AFTER DESCRIBING THE POLITICAL ACTIVITY AND BITTER
DIFFERENCES LIKELY TO RESULT FROM THE STATE PROGRAMS THERE INVOLVED,
THE COURT SAID: 

     "THE POTENTIAL FOR POLITICAL DIVISIVENESS RELATED TO RELIGIOUS

  BELIEF AND PRACTICE IS AGGRAVATED IN THESE TWO STATUTORY PROGRAMS

  BY THE NEED FOR CONTINUING ANNUAL APPROPRIATIONS AND THE

  LIKELIHOOD OF LARGER AND LARGER DEMANDS AS COSTS AND POPULATIONS

GROW."  403 U. S., AT 623.  /54/ 

THE LANGUAGE OF THE COURT APPLIES WITH PECULIAR FORCE TO THE NEW
YORK STATUTE NOW BEFORE US.  SECTION 1 (GRANTS FOR MAINTENANCE) AND ^ 2
(TUITION GRANTS) WILL REQUIRE CONTINUING ANNUAL APPROPRIATIONS. 
AND 5 (INCOME TAX RELIEF) WILL NOT NECESSARILY REQUIRE ANNUAL RE
EXAMINATION, BUT THE PRESSURE FOR FREQUENT ENLARGEMENT OF THE RELIEF IS
PREDICTABLE.  ALL THREE OF THESE PROGRAMS START OUT AT MODEST LEVELS:
THE MAINTENANCE GRANT IS NOT TO EXCEED $40 PER PUPIL PER YEAR IN
APPROVED SCHOOLS; THE TUITION GRANT PROVIDES PARENTS NOT MORE THAN $50
A YEAR FOR EACH CHILD IN THE FIRST EIGHT GRADES AND $100 FOR EACH CHILD
IN THE HIGH SCHOOL GRADES; AND THE TAX BENEFIT, THOUGH MORE DIFFICULT
TO COMPUTE, IS EQUALLY MODEST.  BUT WE KNOW FROM LONG EXPERIENCE WITH
BOTH FEDERAL AND STATE GOVERNMENTS THAT AID PROGRAMS OF ANY KIND TEND
TO BECOME ENTRENCHED, TO ESCALATE IN COST, AND TO GENERATE THEIR OWN
AGGRESSIVE CONSTITUENCIES.  AND THE LARGER THE CLASS OF RECIPIENTS, THE
GREATER THE PRESSURE FOR ACCELERATED INCREASES.  /55/  MOREOVER, THE
STATE ITSELF, CONCEDEDLY ANXIOUS TO AVOID ASSUMING THE BURDEN OF
EDUCATING CHILDREN NOW IN PRIVATE AND PAROCHIAL SCHOOLS, HAS A STRONG
MOTIVATION FOR INCREASING THIS AID AS PUBLIC SCHOOL COSTS RISE AND
POPULATION INCREASES.  /56/  IN THIS SITUATION, WHERE THE UNDERLYING
ISSUE IS THE DEEPLY EMOTIONAL ONE OF CHURCH-STATE RELATIONSHIPS, THE
POTENTIAL FOR SERIOUSLY DIVISIVE POLITICAL CONSEQUENCES NEEDS NO
ELABORATION.  AND WHILE THE PROSPECT OF SUCH DIVISIVENESS MAY NOT ALONE
WARRANT THE INVALIDATION OF STATE LAWS THAT OTHERWISE SURVIVE THE
CAREFUL SCRUTINY REQUIRED BY THE DECISIONS OF THIS COURT, IT IS
CERTAINLY A "WARNING SIGNAL" NOT TO BE IGNORED.  403 U. S., AT 625. 

OUR EXAMINATION OF NEW YORK'S AID PROVISIONS, IN LIGHT OF ALL
RELEVANT CONSIDERATIONS, COMPELS THE JUDGMENT THAT EACH, AS WRITTEN,
HAS A "PRIMARY EFFECT THAT ADVANCES RELIGION" AND OFFENDS THE
CONSTITUTIONAL PROHIBITION AGAINST LAWS "RESPECTING AN ESTABLISHMENT OF
RELIGION."  WE THEREFORE AFFIRM THE THREE-JUDGE COURT'S HOLDING AS TO
^^ 1 AND 2, AND REVERSE AS TO ^^ 3, 4, AND 5. 

              IT IS SO ORDERED. 

/1/  MADISON'S MEMORIAL AND REMONSTRANCE WAS THE CATALYTIC FORCE
OCCASIONING THE DEFEAT IN VIRGINIA OF AN ASSESSMENT BILL DESIGNED TO
EXTRACT TAXES IN SUPPORT OF TEACHERS OF THE CHRISTIAN RELIGION.  SEE N.
28, INFRA.  SEE ALSO EVERSON V. BOARD OF EDUCATION, 330 U. S. 1, 28, 33
- 41 (1947) (RUTLEDGE, J., DISSENTING). 

/2/  MADISON'S OFTEN-QUOTED DECLARATION IS REPRINTED AS AN APPENDIX
TO THE DISSENTING OPINIONS OF MR. JUSTICE RUTLEDGE AND MR. JUSTICE
DOUGLAS IN EVERSON V. BOARD OF EDUCATION, SUPRA, AT 63, 65 AND WALZ V.
TAX COMM'N, 397 U. S. 664, 700, 719, 721 (1970), RESPECTIVELY. 

/3/  THE PROVISIONS OF THE FIRST AMENDMENT HAVE BEEN MADE BINDING ON
THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
SEE, E. G., MURDOCK V. PENNSYLVANIA, 319 U. S. 105 (1943).     /4/
WALZ V. TAX COMM'N, SUPRA, AT 668.  MR. CHIEF JUSTICE BURGER, WRITING
FOR THE COURT, NOTED THAT THE PURPOSE OF THE CLAUSES "WAS TO STATE AN
OBJECTIVE, NOT TO WRITE A STATUTE," AND THAT "(THE COURT HAS STRUGGLED
TO FIND A NEUTRAL COURSE BETWEEN THE TWO RELIGION CLAUSES, BOTH OF
WHICH ARE CAST IN ABSOLUTE TERMS, AND EITHER OF WHICH, IF EXPANDED TO A
LOGICAL EXTREME, WOULD TEND TO CLASH WITH THE OTHER."  ID., AT 668 -
669. 

/5/  THE EXISTENCE, AT THIS STAGE OF THE COURT'S HISTORY, OF GUIDING
PRINCIPLES ETCHED OVER THE YEARS IN DIFFICULT CASES DOES NOT, HOWEVER,
MAKE OUR TASK TODAY AN EASY ONE.  FOR IT IS EVIDENT FROM THE NUMEROUS
OPINIONS OF THE COURT, AND OF JUSTICES IN CONCURRENCE AND DISSENT IN
THE LEADING CASES APPLYING THE ESTABLISHMENT CLAUSE, THAT NO "BRIGHT
LINE" GUIDANCE IS AFFORDED.  INSTEAD, WHILE THERE HAS BEEN GENERAL
AGREEMENT UPON THE APPLICABLE PRINCIPLES AND UPON THE FRAMEWORK OF
ANALYSIS, THE COURT HAS RECOGNIZED ITS INABILITY TO PERCEIVE WITH
INVARIABLE CLARITY THE "LINES OF DEMARCATION IN THIS EXTRAORDINARILY
SENSITIVE AREA OF CONSTITUTIONAL LAW."  LEMON V. KURTZMAN, 403 U. S.
602, 612 (1971).  AND, AT LEAST WHERE QUESTIONS OF ENTANGLEMENTS ARE
INVOLVED, THE COURT HAS ACKNOWLEDGED THAT, AS OF NECESSITY, THE "WALL"
IS NOT WITHOUT BENDS AND MAY CONSTITUTE A "BLURRED, INDISTINCT, AND
VARIABLE BARRIER DEPENDING ON ALL THE CIRCUMSTANCES OF A PARTICULAR
RELATIONSHIP."  ID., AT 614. 

/6/  THE MOTION WAS GRANTED IN FAVOR OF MR. EARL W. BRYDGES.  UPON
HIS RETIREMENT IN DECEMBER 1972, HIS SUCCESSOR, MR. WARREN M. ANDERSON,
WAS SUBSTITUTED. 

/7/  N. Y. LAWS 1972, C. 414, ^ 1, AMENDING N. Y. EDUC.  LAW, ART.
12, ^^ 549 - 553 (SUPP. 1972 - 1973. 

/8/  ID., ^ 550 (5). 

/9/  ID., ^ 550 (2). 

/10/  ID., ^ 550 (6). 

/11/  ID., ^ 549. 

/12/  N. Y. LAWS 1972, C. 414, ^ 2, AMENDING N. Y. EDUC.  LAW, ART.
12 - A, ^^ 559 - 563 (SUPP. 1972 - 1973). 

/13/  ID., ^ 559 (1). 

/14/ ID., ^ 559 (2). 

/15/  ID., ^ 559 (3). 

/16/  ID. ^ 559 (4). 

/17/  N. Y. LAWS 1972, C. 414, ^^ 3, 4, AND 5, AMENDING N. Y. TAX
LAW ^^ 612 (C), 612 (J) (SUPP. 1972 - 1973). 

/18/  SECTION 5 CONTAINS THE FOLLOWING TABLE:  (TABLE OMITTED) 

/19/  THE FOLLOWING COMPUTATIONS WERE SUBMITTED BY SENATOR BRYDGES:
(TABLE OMITTED) 

/20/  N. Y. TAX LAW ^ 612 (SUPP. 1972 - 1973) (ACCOMPANYING NOTES). 

/21/  COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. LEVITT,
342 F. SUPP. 439, 440 - 441 (SDNY 1972), AFF'D, ANTE, P. 472. 

/22/  AS INDICATED IN THE DISTRICT COURT'S OPINION, IT HAS BEEN
ESTIMATED THAT 280 SCHOOLS WOULD QUALIFY FOR SUCH GRANTS.  THE RELEVANT
CRITERIA FOR DETERMINING ELIGIBILITY ARE SET OUT IN 20 U.S.C. ^ 425,
AND THE CENTRAL TEST IS WHETHER THE SCHOOL IS ONE "IN WHICH THERE IS A
HIGH CONCENTRATION OF STUDENTS FROM LOW-INCOME FAMILIES." 

/23/  IN THE FALL OF 1968, THERE WERE 2,038 NONPUBLIC SCHOOLS IN NEW
YORK STATE; 1,415 ROMAN CATHOLIC; 164 JEWISH; 59 LUTHERAN; 49
EPISCOPAL; 37 SEVENTH DAY ADVENTIST; 18 OTHER CHURCH AFFILIATED; 296
WITHOUT RELIGIOUS AFFILIATION.  N. Y. STATE EDUC.  DEPT., FINANCIAL
SUPPORT--NONPUBLIC SCHOOLS 3 (1969). 

/24/  NO. 72 - 694, COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS
LIBERTY V. NYQUIST. 

/25/  NO. 72 - 791, NYQUIST V. COMMITTEE FOR PUBLIC EDUCATION &
RELIGIOUS LIBERTY. 

/26/  NO. 72 - 753, ANDERSON V. COMMITTEE FOR PUBLIC EDUCATION &
RELIGIOUS LIBERTY. 

/27/  NO. 72 - 929, CHERRY V. COMMITTEE FOR PUBLIC EDUCATION &
RELIGIOUS LIBERTY. 

/28/  VIRGINIA'S EXPERIENCE, EXAMINED AT LENGTH IN THE MAJORITY AND
DISSENTING OPINIONS IN EVERSON, CONSTITUTES ONE OF THE GREATEST
CHAPTERS IN THE HISTORY OF THIS COUNTRY'S ADOPTION OF THE ESSENTIALLY
REVOLUTIONARY NOTION OF SEPARATION BETWEEN CHURCH AND STATE.  DURING
THE COLONIAL ERA AND INTO THE LATE 1700'S, THE ANGLICAN CHURCH APPEARED
FIRMLY SEATED AS THE ESTABLISHED CHURCH OF VIRGINIA.  BUT IN 1776,
ASSISTED BY THE PERSISTENT EFFORTS OF BAPTISTS, PRESBYTERIANS, AND
LUTHERANS, THE VIRGINIA CONVENTION APPROVED A PROVISION FOR ITS FIRST
CONSTITUTION'S BILL OF RIGHTS CALLING FOR THE FREE EXERCISE OF
RELIGION.  THE PROVISION, DRAFTED BY GEORGE MASON AND SUBSTANTIALLY
AMENDED BY JAMES MADISON, STATED "(THAT RELIGION . . . AND THE MANNER
OF DISCHARGING IT, CAN BE DIRECTED ONLY BY REASON AND CONVICTION, NOT
BY FORCE OR VIOLENCE; AND THEREFORE, ALL MEN ARE EQUALLY ENTITLED TO
THE FREE EXERCISE OF RELIGION ACCORDING TO THE DICTATES OF CONSCIENCE .
. . ." 

BUT THE VIRGINIA BILL OF RIGHTS CONTAINED NO PROHIBITION AGAINST THE
ESTABLISHMENT OF RELIGION, AND THE NEXT EIGHT YEARS WERE MARKED BY
DEBATE OVER THE RELATIONSHIP BETWEEN CHURCH AND STATE.  IN 1784, A BILL
SPONSORED PRINCIPALLY BY PATRICK HENRY, ENTITLED A BILL ESTABLISHING A
PROVISION FOR TEACHERS OF THE CHRISTIAN RELIGION, WAS BROUGHT BEFORE
THE VIRGINIA ASSEMBLY.  THE BILL, REPRINTED IN FULL AS AN APPENDIX TO
MR. JUSTICE RUTLEDGE'S DISSENTING OPINION IN EVERSON V. BOARD OF
EDUCATION, 330 U. S. 1, 72 - 74 (1947), REQUIRED ALL PERSONS TO PAY AN
ANNUAL TAX "FOR THE SUPPORT OF CHRISTIAN TEACHERS" IN ORDER THAT THE
TEACHING OF RELIGION MIGHT BE PROMOTED.  EACH TAXPAYER WAS PERMITTED
UNDER THE BILL TO DECLARE WHICH CHURCH HE DESIRED TO RECEIVE HIS SHARE
OF THE TAX.  THE BILL WAS NOT VOTED ON DURING THE 1784 SESSION, AND
PRIOR TO THE CONVENING OF THE 1785 SESSION MADISON PENNED HIS MEMORIAL
AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS, OUTLINING IN 15
NUMBERED PARAGRAPHS THE REASONS FOR HIS OPPOSITION TO THE ASSESSMENTS
BILL.  THE DOCUMENT WAS WIDELY CIRCULATED AND INSPIRED SUCH
OVERWHELMING OPPOSITION TO THE BILL THAT IT DIED DURING THE ENSUING
SESSION WITHOUT REACHING A VATE.  MADISON'S MEMORIAL AND REMONSTRANCE,
RECOGNIZED TODAY AS ONE OF THE CORNERSTONES OF THE FIRST AMENDMENT'S
GUARANTEE OF GOVERNMENT NEUTRALITY TOWARD RELIGION, ALSO PROVIDED THE
NECESSARY FOUNDATION FOR THE IMMEDIATE CONSIDERATION AND ADOPTION OF
THOMAS JEFFERSON'S BILL FOR ESTABLISHING RELIGIOUS FREEDOM, WHICH
CONTAINED VIRGINIA'S FIRST ACKNOWLEDGMENT OF THE PRINCIPLE OF TOTAL
SEPARATION OF CHURCH AND STATE.  THE CORE OF THAT PRINCIPLE, AS STATED
IN THE BILL, IS THAT "NO MAN SHALL BE COMPELLED TO FREQUENT OR SUPPORT
ANY RELIGIOUS WORSHIP, PLACE, OR MINISTRY WHATSOEVER . . . ."  IN
JEFFERSON'S PERSPECTIVE, SO VITAL WAS THIS "WALL OF SEPARATION" TO THE
PERPETUATION OF DEMOCRATIC INSTITUTIONS THAT IT WAS THIS BILL, ALONG
WITH HIS AUTHORSHIP OF THE DECLARATION OF INDEPENDENCE AND THE FOUNDING
OF THE UNIVERSITY OF VIRGINIA, THAT HE WISHED TO HAVE INSCRIBED ON HIS
TOMBSTONE.  REPORT OF THE COMM'N ON CONSTITUTIONAL REVISION, THE
CONSTITUTION OF VIRGINIA 100 - 101 (1969). 

BOTH MADISON'S BILL OF RIGHTS PROVISION ON THE FREE EXERCISE OF
RELIGION AND JEFFERSON'S BILL FOR ESTABLISHING RELIGIOUS FREEDOM HAVE
REMAINED IN THE VIRGINIA CONSTITUTION, UNALTERED IN SUBSTANCE,
THROUGHOUT THAT STATE'S HISTORY.  SEE VA. CONST., ART. I, ^ 16, IN
WHICH THE TWO GUARANTEES HAVE BEEN BROUGHT TOGETHER IN A SINGLE
PROVISION.  FOR COMPREHENSIVE DISCUSSIONS OF THE PERTINENT VIRGINIA
HISTORY, SEE S. COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA 74 -
115, 490 - 499 (REPRINTED 1970); C. JAMES, THE STRUGGLE FOR RELIGIOUS
LIBERTY IN VIRGINIA (1900); I. BRANT, JAMES MADISON THE NATIONALIST
1780 - 1787, PP. 343 - 355 (1948). 

/29/  MC COLLUM V. BOARD OF EDUCATION, 333 U. S. 203 (1948)
("RELEASE TIME" FROM PUBLIC EDUCATION FOR RELIGIOUS EDUCATION); ZORACH
V. CLAUSON, 343 U. S. 306 (1952) (ALSO A "RELEASE TIME" CASE); ENGEL V.
VITALE, 370 U. S. 421 (1962) (PRAYER READING IN PUBLIC SCHOOLS); SCHOOL
DISTRICT OF ABINGTON TOWNSHIP V. SCHEMPP, 374 U. S. 203 (1963) (BIBLE
READING IN PUBLIC SCHOOLS); EPPERSON V. ARKANSAS, 393 U. S. 97 (1968)
(ANTI-EVOLUTIONARY LIMITATION ON PUBLIC SCHOOL STUDY). 

/30/  EVERSON V. BOARD OF EDUCATION, SUPRA (BUS TRANSPORTATION);
BOARD OF EDUCATION V. ALLEN, 392 U. S. 236 (1968) (TEXTBOOKS); LEMON V.
KURTZMAN, SUPRA (TEACHERS' SALARIES, TEXTBOOKS, INSTRUCTIONAL
MATERIALS); EARLEY V. DI CENSO, 403 U. S. 602 (1971) (TEACHERS'
SALARIES); TILTON V. RICHARDSON, 403 U. S. 672 (1971) (SECULAR COLLEGE
FACILITIES). 

/31/  IN DISCUSSING THE APPLICATION OF THESE "TESTS," MR. CHIEF
JUSTICE BURGER NOTED IN TILTON V. RICHARDSON, SUPRA, THAT "THERE IS NO
SINGLE CONSTITUTIONAL CALIPER THAT CAN BE USED TO MEASURE THE PRECISE
DEGREE" TO WHICH ANY ONE OF THEM IS APPLICABLE TO THE STATE ACTION
UNDER SCRUTINY.  RATHER, THESE TESTS OR CRITERIA SHOULD BE "VIEWED AS
GUIDELINES" WITHIN WHICH TO CONSIDER "THE CUMULATIVE CRITERIA DEVELOPED
OVER MAY YEARS AND APPLYING TO A WIDE RANGE OF GOVERNMENTAL ACTION
CHALLENGED AS VIOLATIVE OF THE ESTABLISHMENT CLAUSE."  ID., AT 677 -
678. 

/32/  THE PLURALITY IN TILTON WAS CAREFUL TO POINT OUT THAT THERE
ARE "SIGNIGICANT DIFFERENCES BETWEEN THE RELIGIOUS ASPECTS OF
CHURCHRELATED INSTITUTIONS OF HIGHER LEARNING AND PAROCHIAL ELEMENTARY
AND SECONDARY SCHOOLS."  ID., AT 685.  SEE HUNT V. MC NAIR, ANTE, P.
734. 

/33/  OUR ESTABLISHMENT CLAUSE PRECEDENTS HAVE RECOGNIZED THE
SPECIAL RELEVANCE IN THIS AREA OF MR. JUSTICE HOLMES' COMMENT THAT "A
PAGE OF HISTORY IS WORTH A VOLUME OF LOGIC."  SEE WALZ V. TAX COMM'N,
397 U. S., AT 675 - 676 (CITING NEW YORK TRUST CO. V. EISNER, 256 U. S.
345, 349 (1921)).  IN EVERSON, MR. JUSTICE BLACK SURVEYED THE HISTORY
OF STATE INVOLVEMENT IN, AND SUPPORT OF, RELIGION DURING THE PRE
REVOLUTIONARY PERIOD AND CONCLUDED: 

"THESE PRACTICES BECAME SO COMMONPLACE AS TO SHOCK THE FREEDOMLOVING
COLONIALS INTO A FEELING OF ABHORRENCE.  THE IMPOSITION OF TAXES TO PAY
MINISTERS' SALARIES AND TO BUILD AND MAINTAIN CHURCHES AND CHURCH
PROPERTY AROUSED THEIR INDIGNATION.  IT WAS THESE FEELINGS WHICH FOUND
EXPRESSION IN THE FIRST AMENDMENT."  330 U. S., AT 11 (EMPHASIS
SUPPLIED). 

/34/  THE PERTINENT SECTION READS AS FOLLOWS: 

"IN ORDER TO MEET PROPER HEALTH, WELFARE AND SAFETY STANDARDS IN
QUALIFYING SCHOOLS FOR THE BENEFIT OF THE PUPILS ENROLLED THEREIN,
THERE SHALL BE APPORTIONED HEALTH, WELFARE AND SAFETY GRANTS BY THE
COMMISSIONER TO EACH QUALIFYING SCHOOL FOR THE SCHOOL YEARS BEGINNING
ON AND AFTER JULY FIRST, NINETEEN HUNDRED SEVENTY-ONE, AN AMOUNT EQUAL
TO THE PRODUCT OF THIRTY DOLLARS MULTIPLIED BY THE AVERAGE DAILY
ATTENDANCE OF PUPILS RECEIVING INSTRUCTION IN SUCH SCHOOL, TO BE
APPLIED FOR COSTS OF MAINTENANCE AND REPAIR.  SUCH APPORTIONMENT SHALL
BE INCREASED BY TEN DOLLARS MULTIPLIED BY THE AVERAGE DAILY ATTENDANCE
OF PUPILS RECEIVING INSTRUCTION IN A SCHOOL BUILDING CONSTRUCTED PRIOR
TO NINETEEN HUNDRED FORTY-SEVEN.  IN NO EVENT SHALL THE PER PUPIL
ANNUAL ALLOWANCE COMPUTED UNDER THIS SECTION EXCEED FIFTY PER CENTUM OF
THE AVERAGE PER PUPIL COST OF EQUIVALENT MAINTENANCE AND REPAIR IN THE
PUBLIC SCHOOLS OF THE STATE ON A STATE-WIDE BASIS, AS DETERMINED BY THE
COMMISSIONER, AND IN NO EVENT SHALL THE APPORTIONMENT TO A QUALIFYING
SCHOOL EXCEED THE AMOUNT OF EXPENDITURES FOR MAINTENANCE AND REPAIR OF
SUCH SCHOOL AS REPORTED PURSUANT TO SECTION FIVE HUNDRED FIFTY-TWO OF
THIS ARTICLE."  N. Y. EDUC.  LAW, ART. 12, ^ 551 (SUPP. 1972 - 1973)
(EMPHASIS SUPPLIED). 

/35/  ELSEWHERE IN THE OPINION, THE COURT EMPHASIZED THE NECESSITY
FOR THE STATES OF RHODE ISLAND AND PENNSYLVANIA TO ASSURE, THROUGH
CAREFUL REGULATION, THE SECULARITY OF THEIR GRANTS: 

"THE TWO LEGISLATURES . . . HAVE ALSO RECOGNIZED THAT CHURCH-RELATED
ELEMENTARY AND SECONDARY SCHOOLS HAVE A SIGNIFICANT RELIGIOUS MISSION
AND THAT A SUBSTANTIAL PORTION OF THEIR ACTIVITIES IS RELIGIOUSLY
ORIENTED.  THEY HAVE THEREFORE SOUGHT TO CREATE STATUTORY RESTRICTIONS
DESIGNED TO GUARANTEE THE SEPARATION BETWEEN SECULAR AND RELIGIOUS
EDUCATIONAL FUNCTIONS AND TO ENSURE THAT STATE FINANCIAL AID SUPPORTS
ONLY THE FORMER.  ALL THESE PROVISIONS ARE PRECAUTIONS TAKEN IN CANDID
RECOGNITION THAT THESE PROGRAMS APPROACHED, EVEN IF THEY DID NOT
INTRUDE UPON, THE FORBIDDEN AREAS UNDER THE RELIGION CLAUSES."  403 U.
S., AT 613. 

/36/  IN TILTON, FEDERAL CONSTRUCTION GRANTS WERE LIMITED TO PAYING
50% OF THE COST OF ERECTING ANY SECULAR FACILITY.  IN STRIKING FROM THE
LAW THE 20-YEAR LIMITATION, THE COURT WAS CONCERNED LEST ANY FEDERALLY
FINANCED FACILITY BE USED FOR RELIGIOUS PURPOSES AT ANY TIME.  IT WAS
PLAINLY NOT CONCERNED ONLY THAT AT LEAST 50% OF THE FACILITY, OR 50% OF
ITS LIFE, BE DEVOTED TO SECULAR ACTIVITIES.  HAD THIS BEEN THE TEST
THERE CAN BE LITTLE DOUBT THAT THE 20-YEAR RESTRICTION WOULD HAVE BEEN
ADEQUATE. 

/37/  IN ADDITION TO EVERSON AND ALLEN, THE CHIEF JUSTICE IN HIS
DISSENTING OPINION RELIES ON QUICK BEAR V. LEUPP, 210 U. S. 50 (1908),
FOR THE PROPOSITION THAT "GOVERNMENT AID TO INDIVIDUALS GENERALLY
STANDS ON AN ENTIRELY DIFFERENT FOOTING FROM DIRECT AID TO RELIGIOUS
INSTITUTIONS."  POST, AT 801.  QUICK BEAR, HOWEVER, DID NOT INVOLVE THE
EXPENDITURE OF TAX-RAISED MONEYS TO SUPPORT SECTARIAN SCHOOLS.  THE
FUNDS THAT WERE UTILIZED BY THE INDIANS TO PROVIDE SECTARIAN EDUCATION
WERE TREATY AND TRUST FUNDS WHICH THE COURT EMPHASIZED BELONGED TO THE
INDIANS AS PAYMENT FOR THE CESSION OF INDIAN LAND AND OTHER RIGHTS. 
210 U. S., AT 80 - 81.  IT WAS THEIR MONEY, AND THE COURT HELD THAT FOR
CONGRESS TO HAVE PROHIBITED THEM FROM EXPENDING THEIR OWN MONEY TO
ACQUIRE A RELIGIOUS EDUCATION WOULD HAVE CONSTITUTED A PROHIBITION OF
THE FREE EXERCISE OF RELIGION.  ID., AT 82.  THE PRESENT LITIGATION IS
QUITE UNLIKE QUICK BEAR SINCE THAT CASE DID NOT INVOLVE THE
DISTRIBUTION OF PUBLIC FUNDS, DIRECTLY OR INDIRECTLY, TO COMPENSATE
PARENTS WHO SEND THEIR CHILDREN TO RELIGIOUS SCHOOLS. 

/38/  ALLEN AND EVERSON DIFFER FROM THE PRESENT LITIGATION IN A
SECOND IMPORTANT RESPECT.  IN BOTH CASES THE CLASS OF BENEFICIARIES
INCLUDED ALL SCHOOLCHILDREN, THOSE IN PUBLIC AS WELL AS THOSE IN
PRIVATE SCHOOLS.  SEE ALSO TILTON V. RICHARDSON, SUPRA, IN WHICH
FEDERAL AID WAS MADE AVAILABLE TO ALL INSTITUTIONS OF HIGHER LEARNING,
AND WALZ V. TAX COMM'N SUPRA, IN WHICH TAX EXEMPTIONS WERE ACCORDED TO
ALL EDUCATIONAL AND CHARITABLE NONPROFIT INSTITUTIONS.  WE DO NOT AGREE
WITH THE SUGGESTION IN THE DISSENT OF THE CHIEF JUSTICE THAT TUITION
GRANTS ARE AN ANALOGOUS ENDEAVOR TO PROVIDE COMPARABLE BENEFITS TO ALL
PARENTS OF SCHOOLCHILDREN WHETHER ENROLLED IN PUBLIC OR NONPUBLIC
SCHOOLS.  POST, AT 801 - 803.  THE GRANTS TO PARENTS OF PRIVATE
SCHOOLCHILDREN ARE GIVEN IN ADDITION TO THE RIGHT THAT THEY HAVE TO
SEND THEIR CHILDREN TO PUBLIC SCHOOLS "TOTALLY AT STATE EXPENSE."  AND
IN ANY EVENT, THE ARGUMENT PROVES TOO MUCH, FOR IT WOULD ALSO PROVIDE A
BASIS FOR APPROVING THROUGH TUITION GRANTS THE COMPLETE SUBSIDIZATION
OF ALL RELIGIOUS SCHOOLS ON THE GROUND THAT SUCH ACTION IS NECESSARY IF
THE STATE IS FULLY TO EQUALIZE THE POSITION OF PARENTS WHO ELECT SUCH
SCHOOLS--A RESULT WHOLLY AT VARIANCE WITH THE ESTABLISHMENT CLAUSE. 

BECAUSE OF THE MANNER IN WHICH WE HAVE RESOLVED THE TUITION GRANT
ISSUE, WE NEED NOT DECIDE WHETHER THE SIGNIFICANTLY RELIGIOUS CHARACTER
OF THE STATUTE'S BENEFICIARIES MIGHT DIFFERENTIATE THE PRESENT CASES
FROM A CASE INVOLVING SOME FORM OF PUBLIC ASSISTANCE (E. G.,
SCHOLARSHIPS) MADE AVAILABLE GENERALLY WITHOUT REGARD TO THE SECTARIAN
NONSECTARIAN, OR PUBLIC-NONPUBLIC NATURE OF THE INSTITUTION
BENEFITTED.  SEE WOLMAN V. ESSEX, 342 F. SUPP. 399, 412 - 413 (SD
OHIO), AFF'D, 409 U. S. 808 (1972).  THUS, OUR DECISION TODAY DOES NOT
COMPEL, AS APPELLEES HAVE CONTENDED, THE CONCLUSION THAT THE
EDUCATIONAL ASSISTANCE PROVISIONS OF THE "G. I. BILL," 38 U.S.C. ^
1651, IMPERMISSIBLY ADVANCE RELIGION IN VIOLATION OF THE ESTABLISHMENT
CLAUSE.  SEE ALSO N. 32, SUPRA. 

/39/  APPELLEES, FOCUSING ON THE TERM "PRINCIPAL OR PRIMARY EFFECT"
WHICH THIS COURT HAS UTILIZED IN EXPRESSING THE SECOND PRONG OF THE
THREE-PART TEST, E. G., LEMON V. KURTZMAN, SUPRA, AT 612, HAVE ARGUED
THAT THE COURT MUST DECIDE IN THESE CASES WHETHER THE "PRIMARY" EFFECT
OF NEW YORK'S TUITION GRANT PROGRAM IS TO SUBSIDIZE RELIGION OR TO
PROMOTE THESE LEGITIMATE SECULAR OBJECTIVES.  MR. JUSTICE WHITE'S
DISSENTING OPINION, POST, AT 823, SIMILARLY SUGGESTS THAT THE COURT
TODAY FAILS TO MAKE THIS "ULTIMATE JUDGMENT."  WE DO NOT THINK THAT
SUCH METAPHYSICAL JUDGMENTS ARE EITHER POSSIBLE OR NECESSARY.  OUR
CASES SIMPLY DO NOT SUPPORT THE NOTION THAT A LAW FOUND TO HAVE A
"PRIMARY" EFFECT TO PROMOTE SOME LEGITIMATE END UNDER THE STATE'S
POLICE POWER IS IMMUNE FROM FURTHER EXAMINATION TO ASCERTAIN WHETHER IT
ALSO HAS THE DIRECT AND IMMEDIATE EFFECT OF ADVANCING RELIGION.  IN MC
GOWAN V. MARYLAND, 366 U. S. 420 (1961), SUNDAY CLOSING LAWS WERE
UPHELD, NOT BECAUSE THEIR EFFECT WAS, FIRST, TO PROMOTE THE LEGITIMATE
INTEREST IN A UNIVERSAL DAY OF REST AND RECREATION AND ONLY SECONDARILY
TO ASSIST RELIGIOUS INTERESTS; INSTEAD, APPROVAL FLOWED FROM THE
FINDING, BASED UPON A CLOSE EXAMINATION OF THE HISTORY OF SUCH LAWS,
THAT THEY HAD ONLY A REMOTE AND INCIDENTAL EFFECT ADVANTAGEOUS TO
RELIGIOUS INSTITUTIONS.  ID., AT 450.  SEE ALSO GALLAGHER V. CROWN
KOSHER SUPER MARKET, 366 U. S. 617, 630 (1961); TWO GUYS FROM HARRISON
ALLENTOWN, INC. V. MC GINLEY, 366 U. S. 582, 598 (1961).  LIKEWISE, IN
SCHEMPP THE SCHOOL AUTHORITIES ARGUED THAT BIBLE-READING AND OTHER
RELIGIOUS RECITATIONS IN PUBLIC SCHOOLS SERVED, PRIMARILY, SECULAR
PURPOSES, INCLUDING "THE PROMOTION OF MORAL VALUES, THE CONTRADICTION
TO THE MATERIALISTIC TRENDS OF OUR TIMES, THE PERPETUATION OF OUR
INSTITUTIONS AND THE TEACHING OF LITERATURE."  374 U. S., AT 223.  YET,
WITHOUT DISCREDITING THESE ENDS AND WITHOUT DETERMINING WHETHER THEY
TOOK PRECEDENCE OVER THE DIRECT RELIGIOUS BENEFIT, THE COURT HELD SUCH
EXERCISES INCOMPATIBLE WITH THE ESTABLISHMENT CLAUSE.  SEE ALSO ID., AT
278 - 281 (BRENNAN, J., CONCURRING).  ANY REMAINING QUESTION ABOUT THE
CONTOURS OF THE "EFFECT"  CRITERION WERE RESOLVED BY THE COURT'S
DECISION IN TILTON, IN WHICH THE COURT FOUND THAT THE MERE POSSIBILITY
THAT A FEDERALLY FINANCED STRUCTURE MIGHT BE USED FOR RELIGIOUS
PURPOSES 20 YEARS HENCE WAS CONSTITUTIONALLY UNACCEPTABLE BECAUSE THE
GRANT MIGHT "IN PART HAVE THE EFFECT OF ADVANCING RELIGION."  403 U.
S., AT 683 (EMPHASIS SUPPLIED). 

IT MAY ASSIST IN PROVIDING A HISTORICAL PERSPECTIVE TO RECALL THAT
THE ARGUMENT HERE IS NOT A NEW ONE.  THE PREAMBLE TO PATRICK HENRY'S
BILL ESTABLISHING A PROVISION FOR TEACHERS OF THE CHRISTIAN RELIGION,
WHICH WOULD HAVE REQUIRED VIRGINIANS TO PAY TAXES TO SUPPORT RELIGIOUS
TEACHERS AND WHICH BECAME THE FOCAL POINT OF MADISON'S MEMORIAL AND
REMONSTRANCE, SEE N. 28, SUPRA, CONTAINED THE FOLLOWING LISTING OF
SECULAR PURPOSES: "(THE GENERAL DIFFUSION OF CHRISTIAN KNOWLEDGE HATH A
NATURAL TENDENCY TO CORRECT THE MORALS OF MEN, RESTRAIN THEIR VICES,
AND PRESERVE THE PEACE OF SOCIETY . . . ."  EVERSON V. BOARD OF
EDUCATION, 330 U. S., AT 72 (APPENDIX TO DISSENT OF TURLEDGE, J.). 

SUCH SECULAR OBJECTIVES, NO MATTER HOW DESIRABLE AND IRRESPECTIVE OF
WHETHER JUDGES MIGHT POSSESS SUFFICIENTLY SENSITIVE CALIPERS TO
ASCERTAIN WHETHER THE SECULAR EFFECTS OUTWEIGH THE SECTARIAN BENEFITS,
CANNOT SERVE TODAY ANY MORE THAN THEY COULD 200 YEARS AGO TO JUSTIFY
SUCH A DIRECT AND SUBSTANTIAL ADVANCEMENT OF RELIGION. 

/40/  THE FORMS OF AID INVOLVED IN EVERSON, EARLEY V. DI CENSO, AND
LEMON, WERE ALL GIVEN AS "REIMBURSEMENT," YET NOT ONE LINE IN ANY OF
THOSE CASES SUGGESTS THAT THIS FACTOR WAS OF ANY CONSTITUTIONAL
SIGNIFICANCE. 

/41/  BRIEF FOR APPELLEE ANDERSON 25. 

/42/  IBID. 

/43/  IBID. 

/44/  NONE OF THE THREE DISSENTING OPINIONS FILED TODAY PURPORTS TO
RELY ON ANY SUCH STATISTICAL ASSURANCES OF SECULARITY.  INDEED, UNDER
THE RATIONALE OF THOSE OPINIONS, IT IS DIFFICULT TO PERCEIVE ANY
LIMITATIONS ON THE AMOUNT OF STATE AID THAT WOULD BE APPROVED IN THE
FORM OF TUITION GRANTS. 

/45/  N. Y. EDUC.  LAW, ART. 12 - A, ^ 559 (2) (SUPP. 1972 - 1973)
(LEGISLATIVE FINDING SUPPORTING TUITION REIMBURSEMENT). 

/46/  "(THE BASIC PURPOSE OF THESE PROVISIONS . . . IS TO INSURE
THAT NO RELIGION BE SPONSORED OR FAVORED, NONE COMMANDED, AND NONE
INHIBITED."  WALZ V. TAX COMM'N, 397 U. S., AT 669. 

/47/  SEE N. 18, SUPRA. 

/48/  THE ESTIMATED-BENEFIT TABLE IS REPRINTED IN N. 19, SUPRA. 

/49/  SINCE THE PROGRAM HERE DOES NOT HAVE THE ELEMENTS OF A GENUINE
TAX DEDUCTION, SUCH AS FOR CHARITABLE CONTRIBUTIONS, WE DO NOT HAVE
BEFORE US, AND DO NOT DECIDE, WHETHER THAT FORM OF TAX BENEFIT IS
CONSTITUTIONALLY ACCEPTABLE UNDER THE "NEUTRALITY" TEST IN WALZ. 

/50/  APPELLANTS CONCEDED THAT "SHOULD THE COURT DECIDE THAT SECTION
2 OF THE ACT DOES NOT VIOLATE THE ESTABLISHMENT CLAUSE, WE ARE UNABLE
TO SEE HOW IT COULD HOLD OTHERWISE IN RESPECT TO SECTIONS 3, 4 AND 5." 
BRIEF FOR APPELLANTS 42 - 43.  WE AGREE THAT, UNDER THE FACTS OF THIS
CASE, THE TWO ARE LEGALLY INSEPARABLE AND THAT THE AFFIRMATIVE OF
APPELLANTS' STATEMENT IS ALSO TRUE, I. E., IF ^ 2 DOES VIOLATE THE
ESTABLISHMENT CLAUSE SO, TOO, DO THE SECTIONS CONFERRING TAX BENEFITS. 

/51/  THE SEPARATE OPINIONS OF MR. JUSTICE HARLAN AND MR. JUSTICE
BRENNAN ALSO EMPHASIZE THE HISTORICAL ACCEPTANCE OF TAX-EXEMPT STATUS
FOR RELIGIOUS INSTITUTIONS.  SEE 397 U. S., AT 680, 694. 

/52/  SEE ALSO N. 38, SUPRA. 

/53/  AS NOTED IN THE OPINION BELOW:  "THIS (LITIGATION) IS, IN
ESSENCE, A CONFLICT BETWEEN TWO GROUPS OF EXTRAORDINARY GOOD WILL AND
CIVIC RESPONSIBILITY.  ONE GROUP FEARS THE DIMINUTION OF PAROCHIAL
RELIGIOUS EDUCATION WHICH IS THOUGHT TO BE AN INTEGRAL PART OF THEIR
RIGHTS TO THE FREE EXERCISE OF RELIGION.  THE OTHER GROUP, EQUALLY
DEDICATED, BELIEVES THAT ENCROACHMENT OF GOVERNMENT IN AID OF RELIGION
IS AS DANGEROUS TO THE SECULAR STATE AS ENCROACHMENT OF GOVERNMENT TO
RESTRICT RELIGION WOULD BE TO ITS FREE EXERCISE."  350 F. SUPP., AT
660. 

/54/  THE COURT IN LEMON FURTHER EMPHASIZED THAT POLITICAL DIVISION
ALONG RELIGIOUS LINES IS TO BE CONTRASTED WITH THE POLITICAL DIVERSITY
EXPECTED IN A DEMOCRATIC SOCIETY:  "ORDINARILY POLITICAL DEBATE AND
DIVISION, HOWEVER VIGOROUS OR EVEN PARTISAN, ARE NORMAL AND HEALTHY
MANIFESTATIONS OF OUR DEMOCRATIC SYSTEM OF GOVERNMENT, BUT POLITICAL
DIVISION ALONG RELIGIOUS LINES WAS ONE OF THE PRINCIPAL EVILS AGAINST
WHICH THE FIRST AMENDMENT WAS INTENDED TO PROTECT.  FREUND, COMMENT,
PUBLIC AID TO PAROCHIAL SCHOOLS, 82 HARV. L. REV. 1680, 1692 (1969)." 
403 U. S., AT 622. 

/55/  AS SOME 20% OF THE TOTAL SCHOOL POPULATION IN NEW YORK ATTENDS
PRIVATE AND PAROCHIAL SCHOOLS, THE CONSTITUENT BASE SUPPORTING THESE
PROGRAMS IS NOT INSIGNIFICANT. 

/56/  THE SELF-PERPETUATING TENDENCIES OF ANY FORM OF GOVERNMENT AID
TO RELIGION HAVE BEEN A MATTER OF CONCERN RUNNING THROUGHOUT OUR
ESTABLISHMENT CLAUSE CASES.  IN SCHEMPP, THE COURT EMPHASIZED THAT IT
WAS "NO DEFENSE TO URGE THAT THE RELIGIOUS PRACTICES HERE MAY BE
RELATIVELY MINOR ENCROACHMENTS ON THE FIRST AMENDMENT," FOR WHAT TODAY
IS A "TRICKLING STREAM" MAY BE A TORRENT TOMMORROW.  374 U. S., AT
225.  SEE ALSO LEMON V. KURTZMAN, 403 U. S., AT 624 - 625.  BUT, TO
BORROW THE WORDS FROM MR. JUSTICE RUTLEDGE'S FORCEFUL DISSENT IN
EVERSON, IT IS NOT ALONE THE POTENTIAL EXPANDABILITY OF STATE TAX AID
THAT RENDERS SUCH AID INVALID.  NOT EVEN "THREE PENCE" COULD BE
ASSESSED:  "NOT THE AMOUNT BUT 'THE PRINCIPLE OF ASSESSMENT WAS
WRONG.'"  330 U. S., AT 40 - 41 (QUOTING FROM MADISON'S MEMORIAL AND
REMONSTRANCE). 

MR. CHIEF JUSTICE BURGER, JOINED IN PART BY MR. JUSTICE WHITE, AND
JOINED BY MR. JUSTICE REHNQUIST, CONCURRING IN PART AND DISSENTING IN
PART. 

I JOIN IN THAT PART OF THE COURT'S OPINION IN COMMITTEE FOR PUBLIC
EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, ANTE, P. 756, WHICH HOLDS THE
NEW YORK "MAINTENANCE AND REPAIR" PROVISION /1/  UNCONSTITUTIONAL UNDER
THE ESTABLISHMENT CLAUSE BECAUSE IT IS A DIRECT AID TO RELIGION.  I
DISAGREE, HOWEVER, WITH THE COURT'S DECISIONS IN NYQUIST AND IN SLOAN
V. LEMON, POST, P. 825, TO STRIKE DOWN THE NEW YORK AND PENNSYLVANIA
TUITION GRANT PROGRAMS AND THE NEW YORK TAX RELIEF PROVISIONS.  /2/  I
BELIEVE THE COURT'S DECISIONS ON THOSE STATUTORY PROVISIONS IGNORE THE
TEACHINGS OF EVERSON V. BOARD OF EDUCATION, 330 U. S. 1 (1947), AND
BOARD OF EDUCATION V. ALLEN, 392 U. S. 236 (1968), AND FAIL TO OBSERVE
WHAT I THOUGHT THE COURT HAD HELD IN WALZ V. TAX COMM'N, 397 U. S. 664
(1970).  I THEREFORE DISSENT AS TO THOSE ASPECTS OF THE TWO HOLDINGS. 
/3/ 

WHILE THERE IS NO STRAIGNT LINE RUNNING THROUGH OUR DECISIONS
INTERPRETING THE ESTABLISHMENT AND FREE EXERCISE CLAUSES OF THE FIRST
AMENDMENT, OUR CASES DO, IT SEEMS TO ME, LAY DOWN ONE SOLID, BASIC
PRINCIPLE:  THAT THE ESTABLISHMENT CLAUSE DOES NOT FORBID GOVERNMENTS,
STATE OR FEDERAL, TO ENACT A PROGRAM OF GENERAL WELFARE UNDER WHICH
BENEFITS ARE DISTRIBUTED TO PRIVATE INDIVIDUALS, EVEN THOUGH MANY OF
THOSE INDIVIDUALS MAY ELECT TO USE THOSE BENEFITS IN WAYS THAT "AID"
RELIGIOUS INSTRUCTION OR WORSHIP.  THUS, IN EVERSON THE COURT HELD THAT
A NEW JERSEY TOWNSHIP COULD REIMBURSE ALL PARENTS OF SCHOOL-AGE
CHILDREN FOR BUS FARES PAID IN TRANSPORTING THEIR CHILDREN TO SCHOOL. 
MR. JUSTICE BLACK'S OPINION FOR THE COURT STATED THAT THE NEW JERSEY
"LEGISLATION, AS APPLIED, DOES NO MORE THAN PROVIDE A GENERAL PROGRAM
TO HELP PARENTS OF SCHOOL-AGE CHILDREN FOR BUS FARES PAID IN
TRANSPORTING THEIR CHILDREN TO SCHOOL.  MR. JUSTICE BLACK'S OPINION FOR
THE COURT STATED THAT THE NEW JERSEY "LEGISLATION, AS APPLIED, DOES NO
MORE THAN PROVIDE A GENERAL PROGRAM TO HELP PARENTS GET THEIR CHILDREN,
REGARDLESS OF THEIR RELIGION, SAFELY AND AT 18 (EMPHASIS ADDED). 

TWENTY-ONE YEARS LATER, IN BOARD OF EDUCATION V. ALLEN, SUPRA, THE
COURT AGAIN UPHELD A STATE PROGRAM THAT PROVIDED FOR DIRECT AID TO THE
PARENTS OF ALL SCHOOLCHILDREN INCLUDING THOSE IN PRIVATE SCHOOLS.  THE
STATUTE THERE REQUIRED "LOCAL PUBLIC SCHOOL AUTHORITIES TO LEND
TEXTBOOKS FREE OF CHARGE TO ALL STUDENTS IN GRADES SEVEN THROUGH 12;
STUDENTS ATTENDING PRIVATE SCHOOLS (WERE) INCLUDED."  392 U. S., AT
238.  RECOGNIZING THAT EVERSON WAS THE CASE "MOST NEARLY IN POINT," THE
ALLEN COURT INTERPRETED EVERSON AS HOLDING THAT "THE ESTABLISHMENT
CLAUSE DOES NOT PREVENT A STATE FROM EXTENDING THE BENEFITS OF STATE
LAWS TO ALL CITIZENS WITHOUT REGARD FOR THEIR RELIGIOUS AFFILIATION . .
. ."  ID., AT 241 - 242.  APPLYING THAT PRINCIPLE TO THE STATUTE BEFORE
IT, THE ALLEN COURT STATED: 

"APPELLANTS HAVE SHOWN US NOTHING ABOUT THE NECESSARY EFFECTS OF THE
STATUTE THAT IS CONTRARY TO ITS STATED PURPOSE.  THE LAW MERELY MAKES
AVAILABLE TO ALL CHILDREN THE BENEFITS OF A GENERAL PROGRAM TO LEND
SCHOOL BOOKS FREE OF CHARGE.  BOOKS ARE FURNISHED AT THE REQUEST OF THE
PUPIL AND OWNERSHIP REMAINS, AT LEAST TECHNICALLY, IN THE STATE.  THUS
NO FUNDS OR BOOKS ARE FURNISHED TO PAROCHIAL SCHOOLS, AND THE FINANCIAL
BENEFIT IS TO PARENTS AND CHILDREN, NOT TO SCHOOLS."  ID., AT 243 - 244
(EMPHASIS ADDED). 

THE COURT'S OPINIONS IN BOTH EVERSON AND ALLEN RECOGNIZED THAT THE
STATUTORY PROGRAMS AT ISSUE THERE MAY WELL HAVE FACILITATED THE
DECISION OF MANY PARENTS TO SEND THEIR CHILDREN TO RELIGIOUS SCHOOLS. 
EVERSON V. BOARD OF EDUCATION, SUPRA, AT 17 - 18; BOARD OF EDUCATION V.
ALLEN, SUPRA, AT 242, 244.  SEE NORWOOD V. HARRISON, ANTE, AT 463 N. 6
(1973).  INDEED, THE COURT IN BOTH CASES SPECIFICALLY ACKNOWLEDGED THAT
SOME CHILDREN MIGHT NOT OBTAIN RELIGIOUS INSTRUCTION BUT FOR THE
BENEFITS PROVIDED BY THE STATE.  NOTWITHSTANDING, THE COURT HELD THAT
SUCH AN INDIRECT OR INCIDENTAL "BENEFIT" TO THE RELIGIOUS INSTITUTIONS
THAT SPONSORED PAROCHIAL SCHOOLS WAS NOT A CONCLUSIVE INDICUM OF A "LAW
RESPECTING AN ESTABLISHMENT OF RELIGION."  /4/ 

ONE OTHER ESPECIALLY PERTINENT DECISION SHOULD BE NOTED.  IN QUICK
BEAR V. LEUPP, 210 U. S. 50 (1908), THE COURT CONSIDERED THE QUESTION
WHETHER GOVERNMENT AID TO INDIVIDUALS WHO CHOOSE TO USE THE BENEFITS
FOR SECTARIAN PURPOSES CONTRAVENES THE ESTABLISHMENT CLAUSE.  THERE THE
FEDERAL GOVERNMENT HAD SET ASIDE CERTAIN TRUST AND TREATY FUNDS FOR THE
EDUCATIONAL BENEFIT OF THE MEMBERS OF THE SIOUX INDIAN TRIBE.  WHEN
SOME BENEFICIARIES ELECTED TO ATTEND RELIGIOUS SCHOOLS, AND THE
GOVERNMENT ENTERED INTO PAYMENT CONTRACTS WITH THE SECTARIAN
INSTITUTIONS, SUIT WAS BROUGHT TO ENJOIN THE DISBURSEMENT OF PUBLIC
MONEY TO THOSE SCHOOLS.  SPEAKING OF THE CONSTITUTIONALITY OF SUCH A
PROGRAM, THE COURT SAID:     "BUT WE CANNOT CONCEDE THE PROPOSITION
THAT INDIANS CANNOT BE ALLOWED TO USE THEIR OWN MONEY TO EDUCATE THEIR
CHILDREN IN THE SCHOOLS OF THEIR OWN CHOICE BECAUSE THE GOVERNMENT IS
NECESSARILY UNDENOMINATIONAL, AS IT CANNOT MAKE ANY LAW RESPECTING AN
ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF." 
ID., AT 81 - 82.     THE ESSENCE OF ALL THESE DECISIONS, I SUGGEST, IS
THAT GOVERNMENT AID TO INDIVIDUALS GENERALLY STANDS ON AN ENTIRELY
DIFFERENT FOOTING FROM DIRECT AID TO RELIGIOUS INSTITUTIONS.  I SAY
"GENERALLY" BECAUSE IT IS OBVIOUSLY POSSIBLE TO CONJURE HYPOTHETICAL
STATUTES THAT CONSTITUTE EITHER A SUBTERFUGE FOR DIRECT AID TO
RELIGIOUS INSTITUTIONS OR A DISCRIMINATORY ENACTMENT FAVORING RELIGIOUS
INSTITUTIONS OR A DISCRIMINATORY ENACTMENT FAVORING RELIGIOUS OVER
NONRELIGIOUS ACTIVITIES.  THUS, A STATE COULD NOT ENACT A STATUTE
PROVIDING FOR A $10 GRATUITY TO EVERYONE WHO ATTENDED RELIGIOUS
SERVICES WEEKLY.  SUCH A LAW WOULD PLAINLY BE GOVERNMENTAL SPONSORSHIP
OF RELIGIOUS ACTIVITIES; NO STATUTORY PREAMBLE EXPRESSING PURELY
SECULAR LEGISLATIVE MOTIVES WOULD BE PERSUASIVE.  BUT, AT LEAST WHERE
THE STATE LAW IS GENUINELY DIRECTED AT ENHANCING A RECOGNIZED FREEDOM
OF INDIVIDUALS, EVEN ONE INVOLVING BOTH SECULAR AND RELIGIOUS
CONSEQUENCES, SUCH AS THE RIGHT OF PARENTS TO SEND THEIR CHILDREN TO
PRIVATE SCHOOLS, SEE PIERCE V. SOCIETY OF SISTERS, 268 U. S. 510
(1925), THE ESTABLISHMENT CLAUSE NO LONGER HAS A PROHIBITIVE EFFECT. 
/5/ 

THIS FUNDAMENTAL PRINCIPLE WHICH I SEE RUNNING THROUGH OUR PRIOR
DECISIONS IN THIS DIFFICULT AND SENSITIVE FIELD OF LAW, AND WHICH I
BELIEVE GOVERNS THE PRESENT CASES, IS PREMISED MORE ON EXPERIENCE AND
HISTORY THAN ON LOGIC.  IT IS ADMITTEDLY DIFFICULT TO ARTICULATE THE
REASONS WHY A STATE SHOULD BE PERMITTED TO REIMBURSE PARENTS OF PRIVATE
SCHOOLCHILDREN--PARTIALLY AT LEAST--TO TAKE INTO ACCOUNT THE STATE'S
ENORMOUS SAVINGS IN NOT HAVING TO PROVIDE SCHOOLS FOR THOSE CHILDREN,
WHEN A STATE IS NOT ALLOWED TO PAY THE SAME BENEFIT DIRECTLY TO
INDIVIDUAL MAKES THE ULTIMATE DECISION THAT MAY INDIRECTLY BENEFIT
CHURCH-SPONSORED SCHOOLS; TO THAT EXTENT THE STATE INVOLVEMENT WITH
RELIGION IS SUBSTANTIALLY ATTENUATED.  THE ANSWER, I BELIEVE, LIES IN
THE EXPERIENCED JUDGMENT OF VARIOUS MEMBERS OF THIS COURT OVER THE
YEARS THAT THE BALANCE BETWEEN THE POLICIES OF FREE EXERCISE AND
ESTABLISHMENT OF RELIGION TIPS IN FAVOR OF THE FORMER WHEN THE
LEGISLATION MOVES AWAY FROM DIRECT AID TO RELIGIOUS INSTITUTIONS AND
TAKES ON THE CHARACTER OF GENERAL AID TO INDIVIDUAL FAMILIES.  THIS
JUDGMENT REFLECTS THE CAUTION WITH WHICH WE SCRUTINIZE ANY EFFORT TO
GIVE OFFICIAL SUPPORT TO RELIGION AND THE TOLERANCE WITH WHICH WE TREAT
GENERAL WELFARE LEGISLATION.  BUT, WHATEVER ITS BASIS, THAT PRINCIPLE
IS ESTABLISHED IN OUR CASES, FROM THE EARLY CASE OF QUICK BEAR TO THE
MORE RECENT HOLDINGS IN EVERSON AND ALLEN, AND IT OUGHT TO BE FOLLOWED
HERE. 

THE TUITION GRANT AND TAX RELIEF PROGRAMS NOW BEFORE US ARE, IN MY
VIEW, INDISTINGUISHABLE IN PRINCIPLE, PURPOSE, AND EFFECT FROM THE
STATUTES IN EVERSON AND ALLEN.  IN THE INSTANT CASES AS IN EVERSON AND
ALLEN, THE STATES HAVE MERELY ATTEMPTED TO EQUALIZE THE COSTS INCURRED
BY PARENTS IN OBTAINING AN EDUCATION FOR THEIR CHILDREN.  THE ONLY
DISCERNIBLE DIFFERENCE BETWEEN THE PROGRAMS IN EVERSON AND ALLEN AND
THESE CASES IS IN THE METHOD OF THE DISTRIBUTION OF BENEFITS:  HERE THE
PARTICULAR BENEFITS OF THE PENNSYLVANIA AND NEW YORK STATUTES ARE GIVEN
ONLY TO PARENTS OF PRIVATE SCHOOLCHILDREN, WHILE EVERSON AND ALLEN THE
STATUTORY BENEFITS WERE MADE AVAILABLE TO PARENTS OF BOTH PUBLIC AND
PRIVATE SCHOOLCHILDREN.  BUT TO REGARD THAT DIFFERENCE AS
CONSTITUTIONALLY MEANINGFUL IS TO EXALT FORM OVER SUBSTANCE.  IT IS
BEYOND DISPUTE THAT THE PARENTS OF PUBLIC SCHOOLCHILDREN IN NEW YORK
AND PENNSYLVANIA PRESENTLY RECEIVE THE "BENEFIT" BY GIVING TO PARENTS
OF PRIVATE SCHOOLCHILDREN, IN THE FORM OF DOLLARS OR TAX DEDUCTIONS,
WHAT THE PARENTS OF PUBLIC SCHOOLCHILDREN RECEIVE IN KIND.  IT IS NO
MORE THAN SIMPLE EQUITY TO GRANT PARTIAL RELIEF TO PARENTS WHO SUPPORT
THE PUBLIC SCHOOLS THEY DO NOT USE. 

THE COURT APPEARS TO DISTINGUISH THE PENNSYLVANIA AND NEW YORK
STATUTES FROM EVERSON AND ALLEN ON THE GROUND THAT HERE THE STATE AID
IS NOT APPORTIONED BETWEEN THE RELIGIOUS AND SECULAR ACTIVITIES OF THE
ALLEN THE STATE AID WAS PURELY SECULAR IN NATURE.  BUT THAT DISTINCTION
HAS NOT BEEN FOLLOWED IN THE PAST, SEE QUICK BEAR V. LEUPP, SUPRA, AND
IS NOT LIKELY TO BE CONSIDERED CONTROLLING IN THE FUTURE.  THERE ARE AT
PRESENT MANY FORMS OF GOVERNMENT ASSISTANCE TO INDIVIDUALS THAT CAN BE
USED TO SERVE RELIGIOUS ENDS, SUCH AS SOCIAL SECURITY BENEFITS OF "G.
I. BILL" PAYMENTS, WHICH ARE NOT SUBJECT TO NONRELIGIOUS-USE
RESTRICTIONS.  YET, I CERTAINLY DOUBT THAT TODAY'S MAJORITY WOULD HOLD
THOSE STATUTES UNCONSTITUTIONAL UNDER THE ESTABLISHMENT CLAUSE. 

SINCE I AM UNABLE TO DISCERN IN THE COURT'S ANALYSIS OF EVERSON AND
ALLEN ANY NEUTRAL PRINCIPLE TO EXPLAIN THE RESULT REACHED IN THESE
CASES, I FEAR THAT THE COURT HAS IN REALITY FOLLOWED THE UNSUPPORTABLE
APPROACH OF MEASURING THE "EFFECT" OF A LAW BY THE PERCENTAGE OF THE
RECIPIENTS WHO CHOOSE TO USE THE MONEY FOR RELIGIOUS, RATHER THAN
SECULAR, EDUCATION.  INDEED, IN DISCUSSING THE NEW YORK TAX CREDIT
PROVISIONS, THE COURT'S OPINION ARGUES THAT THE "TAX REDUCTIONS
AUTHORIZED BY THIS LAW FLOW PRIMARILY TO THE PARENTS OF CHILDREN
ATTENDING SECTARIAN, NONPUBLIC SCHOOLS."  ANTE, AT 794.  WHILE THE
OPINION REFRAINS FROM "INTIMATING WHETHER THIS FACTOR ALONE MIGHT HAVE
CONTROLLING SIGNIFICANCE IN ANOTHER CONTEXT IN SOME FUTURE CASE,"
IBID., SIMILAR REFERENCES TO THIS FACTOR ALONE MIGHT HAVE CONTROLLING
SIGNIFICANCE IN ANOTHER CONTEXT IN SOME FUTURE CASE," IBID., SIMILAR
REFERENCES TO THIS FACTOR ELSEWHERE IN THE COURT'S OPINION SUGGEST THAT
IT HAS BEEN GIVEN CONSIDERABLE WEIGHT.  THUS, THE COURT OBSERVES AS TO
THE NEW YORK TUITION GRANT PROGRAM:  "INDEED, IT IS PRECISELY THE
FUNCTION OF NEW YORK'S LAW TO PROVIDE ASSISTANCE TO PRIVATE SCHOOLS,
THE GREAT MAJORITY OF WHICH ARE SECTARIAN."  ANTE, AT 783 (EMPHASIS
ADDED). 

WITH ALL DUE RESPECT, I SUBMIT THAT SUCH A CONSIDERATION IS
IRRELEVANT TO A CONSTITUTIONAL DETERMINATION OF THE "EFFECT" OF A
STATUTE.  FOR PURPOSES OF CONSTITUTIONAL ADJUDICATION OF THAT ISSUE, IT
SHOULD MAKE NO DIFFERENCE WHETHER 5%, 20%, OR 80% OF THE BENEFICIARIES
OF AN EDUCATIONAL PROGRAM OF GENERAL APPLICATION ELECT TO UTILIZE THEIR
BENEFITS FOR RELIGIOUS PURPOSES.  THE "PRIMARY EFFECT" BRANCH OF OUR
THREE-PRONGED TEST WAS NEVER, AT LEAST TO MY UNDERSTANDING, INTENDED TO
VARY WITH THE NUMBER OF CHURCHES BENEFITED BY A STATUTE UNDER WHICH
STATE AID IS DISTRIBUTED TO PRIVATE CITIZENS. 

SUCH A CONSIDERATION, IT IS TRUE, MIGHT BE RELEVANT IN ASCERTAINING
WHETHER THE PRIMARY LEGISLATIVE PURPOSE WAS TO ADVANCE THE CAUSE OF
RELIGION.  BUT THE COURT HAS, AND I THINK CORRECTLY, SUMMARILY
DISMISSED THE CONTENTION THAT EITHER NEW YORK OR PENNSYLVANIA HAD AN
IMPROPER PURPOSE IN ENACTING THESE LAWS.  THE COURT FULLY RECOGNIZES
THAT THE LEGISLATURES OF NEW YORK AND PENNSYLVANIA HAVE A LEGITIMATE
INTEREST IN "PROMOTING PLURALISM AND DIVERSITY AMONG . . . PUBLIC AND
NONPUBLIC SCHOOLS," ANTE, AT 773, IN ASSISTING THOSE WHO REDUCE THE
STATE'S EXPENSES IN PROVIDING PUBLIC EDUCATION, AND IN PROTECTING THE
ALREADY OVERBURDENED PUBLIC SCHOOL SYSTEM AGAINST A MASSIVE INFLUX OF
PRIVATE SCHOOL CHILDREN.  AND IN LIGHT OF THIS COURT'S RECOGNITION OF
THESE SECULAR LEGISLATIVE PURPOSES, I FAIL TO SEE ANY ACCEPTABLE
RESOLUTION TO THESE CASES EXCEPT ONE FAVORING CONSTITUTIONALITY. 

I WOULD THEREFORE UPHOLD THESE NEW YORK AND PENNSYLVANIA STATUTES. 
HOWEVER SINCERE OUR COLLECTIVE PROTESTATIONS OF THE DEBT OWED BY THE
PUBLIC GENERALLY TO THE PAROCHIAL SCHOOL SYSTEMS, THE WHOLESOME
DIVERSITY THEY ENGENDER WILL NOT SURVIVE ON EXPRESSIONS OF GOOD WILL. 

MR. JUSTICE WHITE JOINS THIS OPINION INSOFAR AS IT RELATES TO THE
NEW YORK AND PENNSYLVANIA TUITION GRANT STATUTES AND THE NEW YORK TAX
RELIEF STATUTE. 

/1/  N. Y. LAWS 1972, C. 414, ^ 1, AMENDING NEW YORK EDUC.  LAW,
ART. 12, ^^ 549 - 553 (SUPP. 1972 - 1973). 

/2/  PA. LAWS 1971, ACT 92, PA. STAT. ANN., TIT. 24, ^ 5701 ET SEQ.
(SUPP 1973 - 1974); N. Y. LAWS 1972, C. 414, ^ 2, AMENDING N. Y. EDUC. 
LAW, ART. 12 - A, ^^ 559 - 563 (SUPP. 1972 - 1973); N. Y. LAWS 1972, C.
414, ^^ 3, 4, AND 5, AMENDING N. Y. TAX LAW ^^ 612 (C), 612 (J) (SUPP.
1972 - 1973). 

/3/  MR. JUSTICE REHNQUIST'S DISSENT, WHICH I JOIN, STATES THE
REASONS WHY I BELIEVE THE COURT HAS GRAVELY MISREPRESENTED THE COURT'S
OPINION IN WALZ.  IN THIS OPINION, I STATE ADDITIONAL REASONS WHY I
DISSENT FROM PARTS II - B AND II - C OF THE COURT'S OPINION. 

/4/  IN LEMON V. KURTZMAN, 403 U. S. 602 (1971), THE COURT
SPECIFICALLY DISTINGUISHED EVERSON AND ALLEN ON THE GROUND THAT THOSE
CASES INVOLVED AID TO THE PARENTS AND CHILDREN AND NOT TO PAROCHIAL
SCHOOLS: 

"THE PENNSYLVANIA STATUTE, MOREOVER, HAS THE FURTHER DEFECT OF
PROVIDING STATE FINANCIAL AID DIRECTLY TO THE CHURCH-RELATED SCHOOL. 
THIS FACTOR DISTINGUISHES BOTH EVERSON AND ALLEN, FOR IN BOTH THOSE
CASES THE COURT WAS CAREFUL TO POINT OUT THAT STATE AID WAS PROVIDED TO
THE STUDENT AND HIS PARENTS--NOT TO THE CHURCH-RELATED SCHOOL.  . . ." 
ID., AT 621 (EMPHASIS, EXCEPT FOR CASE NAMES, ADDED). 

/5/  THESE CONSIDERATIONS DO NOT, HOWEVER, JUSTIFY SIMILAR STATE
ASSISTANCE ACCRUING TO THE BENEFIT OF PRIVATE SCHOOLS HAVING
DISCRIMINATORY POLICIES.  SEE NORWOOD V. HARRISON, ANTE, AT 461 - 468
(1973). 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
WHITE CONCUR, DISSENTING IN PART. 

DIFFERENCES OF OPINION ARE UNDOUBTEDLY TO BE EXPECTED WHEN THE COURT
TURNS TO THE TASK OF INTERPRETING THE MEANING OF THE RELIGION CLAUSES
OF THE FIRST AMENDMENT, SINCE OUR PREVIOUS CASES ARISING UNDER THESE
CLAUSES, AS THE COURT NOTES, "HAVE PRESENTED SOME OF THE MOST
PERPLEXING QUESTIONS TO COME BEFORE THIS COURT."  ANTE, AT 760.  I
DISSENT FROM THOSE PORTIONS OF THE COURT'S OPINION WHICH STRIKE DOWN ^^
2 THROUGH 5, N. Y. LAWS 1972, C. 414.  SECTION 2 GRANTS LIMITED STATE
AID TO LOWINCOME PARENTS SENDING THEIR CHILDREN TO NONPUBLIC SCHOOLS
AND ^^ 3 THROUGH 5 MAKE ROUGHLY COMPARABLE BENEFITS AVAILABLE TO MIDDLE
INCOME PARENTS THROUGH THE USE OF TAX DEDUCTIONS.  I FIND BOTH THE
COURT'S REASONING AND RESULT ALL BUT IMPOSSIBLE TO RECONCILE WITH WALZ
V. TAX COMM'N, 397 U. S. 664 (1970), DECIDED ONLY THREE YEARS AGO, AND
WITH BOARD OF EDUCATION V. ALLEN, 392 U. S. 236 (1968), AND EVERSON V.
BOARD OF EDUCATION, 330 U. S. 1 (1947). 

        I 

THE OPINIONS IN WALZ, SUPRA, MAKE IT CLEAR THAT TAX DEDUCTIONS AND
EXEMPTIONS, EVEN WHEN DIRECTED TO RELIGIOUS INSTITUTIONS, OCCUPY QUITE
A DIFFERENT CONSTITUTIONAL STATUS UNDER THE RELIGION CLAUSES OF THE
FIRST AMENDMENT THAN DO OUTRIGHT GRANTS TO SUCH INSTITUTIONS.  MR.
CHIEF JUSTICE BURGER, SPEAKING FOR THE COURT IN WALZ, SAID: 

     "THE GRANT OF A TAX EXEMPTION IS NOT SPONSORSHIP SINCE THE

  GOVERNMENT DOES NOT TRANSFER PART OF ITS REVENUE TO CHURCHES BUT

  SIMPLY ABSTAINS FROM DEMANDING THAT THE CHURCH SUPPORT THE

  STATE.  NO ONE HAS EVER SUGGESTED THAT TAX EXEMPTION HAS

  CONVERTED LIBRARIES, ART GALLERIES, OR HOSPITALS INTO ARMS OF THE

  STATE OR PUT EMPLOYEES 'ON THE PUBLIC PAYROLL.'  THERE IS NO

  GENUINE NEXUS BETWEEN TAX EXEMPTION AND ESTABLISHMENT OF

  RELIGION."  397 U. S., AT 675 (EMPHASIS ADDED). 

MR. JUSTICE BRENNAN IN HIS CONCURRING OPINION AMPLIFIED THE
DISTINCTION BETWEEN TAX BENEFITS AND DIRECT PAYMENTS IN THESE WORDS: 

"TAX EXEMPTIONS AND GENERAL SUBSIDIES, HOWEVER, ARE

  QUALITATIVELY DIFFERENT.  THOUGH BOTH PROVIDE ECONOMIC

  ASSISTANCE, THEY DO SO IN FUNDAMENTALLY DIFFERENT WAYS.  A

SUBSIDY INVOLVES THE DIRECT TRANSFER OF PUBLIC MONIES TO THE

  SUBSIDIZED ENTERPRISE AND USES RESOURCES EXACTED FROM TAXPAYERS

  AS A WHOLE.  AN EXEMPTION, ON THE OTHER HAND, INVOLVES NO SUCH

  TRANSFER.  . . . TAX EXEMPTIONS, ACCORDINGLY, CONSTITUTE MERE

  PASSIVE STATE INVOLVEMENT WITH RELIGION AND NOT THE AFFIRMATIVE

  INVOLVEMENT CHARACTERISTIC OF OUTRIGHT GOVERNMENTAL SUBSIDY." 

  ID., AT 690 - 691 (FOOTNOTES OMITTED). 

HERE THE EFFECT OF THE TAX BENEFIT IS TREBLY ATTENUATED AS COMPARED
WITH THE OUTRIGHT EXEMPTION CONSIDERED IN WALZ.  THERE THE RESULT WAS A
COMPLETE FORGIVENESS OF TAXES, WHILE HERE THE RESULT IS MERELY A
REDUCTION IN TAXES.  THERE THE ULTIMATE BENEFIT WAS AVAILABLE TO AN
ACTUAL HOUSE OF WORSHIP, WHILE HERE EVEN THE ULTIMATE BENEFIT REDOUNDS
ONLY TO A RELIGIOUSLY SPONSORED SCHOOL.  THERE THE CHURCHES THEMSELVES
RECEIVED THE DIRECT REDUCTION IN THE TAX BILL, WHILE HERE IT IS ONLY
THE PARENTS OF THE CHILDREN WHO ARE SENT TO RELIGIOUSLY SPONSORED
SCHOOLS WHO RECEIVE THE DIRECT BENEFIT. 

THE COURT SEEKS TO AVOID THE CONTROLLING EFFECT OF WALZ BY COMPARING
ITS HISTORICAL BACKGROUND TO THE RELATIVE RECENCY OF THE CHALLENGED
DEDUCTION PLAN; BY NOTING THAT IN ITS HISTORICAL CONTEXT, A PROPERTY
TAX EXEMPTION IS RELIGIOUSLY NEUTRAL, WHEREAS THE EDUCATIONAL COST
DEDUCTION HERE IS NOT; AND BY FINDING NO SUBSTANTIVE DIFFERENCE BETWEEN
A DIRECT REIMBURSEMENT FROM THE STATE TO PARENTS AND THE STATE'S
ABSTENTION FROM COLLECTING THE FULL TAX BILL WHICH THE PARENTS WOULD
OTHERWISE HAVE HAD TO PAY.     WHILE IT IS TRUE THAT THE COURT REACHED
ITS RESULT IN WALZ IN PART BY EXAMINING THE UNBROKEN HISTORY OF
PROPERTY TAX EXEMPTIONS FOR RELIGIOUS ORGANIZATIONS IN THIS COUNTRY,
THERE IS NO SUGGESTION IN THE OPINION THAT ONLY THOSE PARTICULAR TAX
EXEMPTION SCHEMES THAT HAVE ROOTS IN PRE-REVOLUTIONARY DAYS ARE
SUSTAINABLE AGAINST AN ESTABLISHMENT CLAUSE CHALLENGE.  AS THE COURT
NOTES IN ITS OPINION, HISTORICAL ACCEPTANCE ALONE WOULD NOT HAVE SERVED
TO VALIDATE THE TAX EXEMPTION UPHELD IN WALZ BECAUSE "'NO ONE ACQUIRES
A VESTED OR PROTECTED RIGHT IN VIOLATION OF THE CONSTITUTION BY LONG
USE.'"  ANTE, AT 792, CITING 397 U. S., AT 678.     BUT WHAT THE COURT
GIVES IN THE FORM OF DICTA WITH ONE HAND, IT TAKES AWAY IN THE FORM OF
ITS HOLDING WITH THE OTHER.  FOR IF LONG-ESTABLISHED USE OF A
PARTICULAR TAX EXEMPTION SCHEME LEADS TO A HOLDING THAT THE SCHEME IS
CONSTITUTIONAL, THAT HOLDING SHOULD EXTEND EQUALLY TO NEWLY DEVISED TAX
BENEFIT PLANS WHICH ARE INDISTINGUISHABLE IN PRINCIPLE FROM THOSE LONG
ESTABLISHED. 

THE COURT'S STATEMENTS THAT "(SPECIAL TAX BENEFITS, HOWEVER, CANNOT
BE SQUARED WITH THE PRINCIPLE OF NEUTRALITY ESTABLISHED BY THE
DECISIONS OF THIS COURT," ANTE, AT 793, AND THAT "INSOFAR AS SUCH
BENEFITS RENDER ASSISTANCE TO PARENTS WHO SEND THEIR CHILDREN TO
ADVANCE THOSE RELIGIOUS INSTITUTIONS," IBID., ARE IMPOSSIBLE TO
RECONCILE WITH WALZ.  WHO CAN DOUBT THAT THE TAX EXEMPTIONS WHICH THAT
CASE UPHELD WERE EVERY BIT AS MUCH OF A "SPECIAL TAX BENEFIT" AS THE
NEW YORK TAX DEDUCTION PLAN HERE, OR THAT THE BENEFITS RESULTING FROM
THE EXEMPTION IN WALZ HAD EVERY BIT AS MUCH TENDENCY TO "AID AND
ADVANCE . . . RELIGIOUS INSTITUTIONS" AS DID NEW YORK'S PLAN HERE? 

THE COURT NONETHELESS DECLARES THAT WHAT HAS BEEN AUTHORIZED BY THE
LEGISLATURE IS NOT A TRUE DEDUCTION AND IN SUBSTANCE PROVIDES AN
INCENTIVE FOR PARENTS TO SEND THEIR CHILDREN TO SECTARIAN SCHOOLS
BECAUSE THE AMOUNT DEDUCTIBLE FROM ADJUSTED GROSS INCOME BEARS NO
RELATIONSHIP TO AMOUNTS ACTUALLY EXPENDED FOR NONPUBLIC EDUCATION. 
SUPPORT FOR ITS NOTION THAT THE AUTHORIZATION IS ESSENTIALLY THE SAME
AS A TAX CREDIT OR A REIMBURSEMENT IS DRAWN FROM THE FACT THAT THE NET
BENEFIT UNDER THE REIMBURSEMENT PLAN ESTABLISHED IN ^ 2 OF C. 414 IS
EQUAL TO THE NET TAX SAVINGS FOR THOSE AT THE LOWER-INCOME END OF THE
TAX DEDUCTION PLAN.  /1/ BUT THE DEDUCTION HERE ALLOWED IS ANALYTICALLY
NO DIFFERENT FROM ANY OTHER FLAT-RATE EXEMPTIONS OR DEDUCTIONS
CURRENTLY IN USE IN BOTH FEDERAL AND STATE TAX SYSTEMS.  SURELY NEITHER
THE STANDARD DEDUCTION, /2/  USABLE BY THOSE TAXPAYERS WHO DO NOT
ITEMIZE THEIR DEDUCTIONS, NOR PERSONAL /3/  OR DEPENDENCY EXEMPTIONS,
/4/  FOR EXAMPLE, BEAR ANY RELATIONSHIP WHATSOEVER TO THE ACTUAL
EXPENSES ACCRUED IN EARNING ANY OF THEM.  YET NONE OF THESE COULD
PROPERLY BE CALLED A REIMBURSEMENT FROM THE STATE.  AND IT WOULD TAKE
MORE OF A RECORD /5/  THAN IS PRESENT IN THIS CASE TO PROVE THE
POSSIBILITY OF A SLIGHTLY LOWER AGGREGATE TAX BILL ACCORDED NEW YORK
TAXPAYERS WHO SEND THEIR DEPENDENTS TO NONPUBLIC SCHOOLS PROVIDES ANY
MORE INCENTIVE TO SEND CHILDREN TO SUCH SCHOOLS THAN PERSONAL
EXEMPTIONS PROVIDE FOR GETTING MARRIED OR HAVING CHILDREN.  THAT
PARENTS MIGHT INCIDENTALLY FIND IT EASIER TO SEND CHILDREN TO NONPUBLIC
SCHOOLS HAS NOT HERETOFORE BEEN HELD TO REQUIRE INVALIDATION OF A STATE
STATUTE.  BOARD OF EDUCATION V. ALLEN, SUPRA; EVERSON V. BOARD OF
EDUCATION, SUPRA. 

THE SOLE DIFFERENCE BETWEEN THE FLAT-RATE EXEMPTIONS CURRENTLY IN
WIDESPREAD USE AND THE DEDUCTION ESTABLISHED IN ^^ 4 AND 5 IS THAT THE
LATTER PROVIDES A REGRESSIVE BENEFIT.  THIS LEGISLATIVE JUDGMENT,
HOWEVER, AS TO THE APPROPRIATE SPREAD OF THE EXPENSE OF PUBLIC AND
NONPUBLIC EDUCATION IS CONSONANT WITH THE STATE'S CONCERN THAT THOSE AT
THE LOWER END OF THE INCOME BRACKETS ARE LESS ABLE TO EXERCISE FREELY
THEIR CONSCIENCES BY SENDING THEIR CHILDREN TO NONPUBLIC SCHOOLS, AND
IS SURELY CONSISTENT WITH THE "BENEVOLENT NEUTRALITY" WE TRY TO UPHOLD
IN RECONCILING THE TENSION BETWEEN THE FREE EXERCISE AND ESTABLISHMENT
CLAUSES.  WALZ, SUPRA, AT 669.  REGARDLESS OF WHAT THE COURT CHOOSES TO
CALL THE NEW YORK PLAN, IT IS STILL ABSTENTION FROM TAXATION, AND THAT
ABSTENTION STANDS ON NO DIFFERENT THEORETICAL FOOTING IN TERMS OF
RUNNING AFOUL OF THE ESTABLISHMENT CLAUSE, FROM ANY OTHER DEDUCTION OR
EXEMPTION CURRENTLY ALLOWABLE FOR RELIGIOUS CONTRIBUTIONS OR
ACTIVITIES.  /6/  THE INVALIDATION OF THE NEW YORK PLAN IS DIRECTLY
CONTRARY TO THIS COURT'S PRONOUNCEMENTS IN WALZ, SUPRA.

        II 

IN STRIKING DOWN BOTH PLANS, THE COURT PLACES CONTROLLING WEIGHT ON
THE FACT THAT THE STATE HAS NOT PURPORTED TO RESTRICT TO SECULAR
PURPOSES EITHER THE REIMBURSEMENTS OR THE MONEY WHICH IT HAS NOT
TAXED.  THIS FACTOR ASSERTEDLY SERVES TO DISTINGUISH BOARD OF EDUCATION
V. ALLEN, SUPRA, AND EVERSON V. BOARD OF EDUCATION, SUPRA, AND COMPELS
THE RESULT THAT INEVITABLY THE PRIMARY EFFECT OF THE PLANS IS TO
PROVIDE FINANCIAL SUPPORT FOR SECTARIAN SCHOOLS. 

IN EVERSON, SUPRA, THE COURT SUSTAINED THE CONSTITUTIONAL VALIDITY
OF A NEW JERSEY STATUTE AND RESULTING SCHOOL BOARD REGULATION THAT
PROVIDED, IN PART, FOR THE DIRECT REIMBURSEMENT TO PARENTS OF CHILDREN
ATTENDING SECTARIAN SCHOOLS OF AMOUNTS EXPENDED IN PROVIDING PUBLIC
TRANSPORTATION TO AND FROM SUCH SCHOOLS.  EXPRESSLY NOTING THAT THE
CHALLENGED REGULATION UNDOUBTEDLY HELPED CHILDREN TO GET TO CHURCH
SCHOOLS AND THAT. 

"(THERE IS EVEN A POSSIBILITY THAT SOME OF THE CHILDREN MIGHT NOT BE
SENT TO THE CHURCH SCHOOLS IF THE PARENTS WERE COMPELLED TO PAY THEIR
CHILDREN'S BUS FARES OUT OF THEIR OWN POCKETS WHEN TRANSPORTATION TO A
PUBLIC SCHOOL WOULD HAVE BEEN PAID FOR BY THE STATE . . . ,"  330 U.
S., AT 17, THE MAJORITY IN AN OPINION WRITTEN BY MR. JUSTICE BLACK HELD
THAT THE STATE SCHEME DID NOT VIOLATE THE ESTABLISHMENT CLAUSE.  AND IT
WAS EMPHASIZED THAT THE STATE IN THAT CASE CONTRIBUTED NO MONEY TO THE
SCHOOLS, ID., AT 18; RATHER IT DID NO MORE THAN EFFECTUATE A SECULAR
PURPOSE--THE TRANSPORTATION OF CHILDREN SAFELY AND EXPEDITIOUSLY TO AND
FROM ACCREDITED SCHOOLS. 

SIMILARLY IN ALLEN, SUPRA, A STATE PROGRAM WHEREBY SECULAR TEXTBOOKS
WERE LOANED TO ALL CHILDREN IN ACCREDITED SCHOOLS WAS APPROVED AS
CONSISTENT WITH THE ESTABLISHMENT CLAUSE, EVEN THOUGH THE COURT
RECOGNIZED THAT FREE BOOKS MADE IT MORE LIKELY THAT SOME CHILDREN WOULD
CHOOSE TO ATTEND A SECTARIAN SCHOOL.  392 U. S., AT 244.  IT WAS AGAIN
EMPHASIZED THAT "NO FUNDS OR BOOKS (WERE) FURNISHED TO PAROCHIAL
SCHOOLS," AND THAT THEREFORE "THE FINANCIAL BENEFIT (WAS) TO PARENTS
AND CHILDREN, NOT TO SCHOOLS."  ID., AT 243 - 344.  THIS FACTOR WAS
CONSIDERED CRUCIAL IN LEMON V. KURTZMAN, 403 U. S. 602 (1971), WHERE
THE COURT STATED, AT 621: 

"THE PENNSYLVANIA STATUTE, MOREOVER, HAS THE FURTHER DEFECT OF

  PROVIDING STATE FINANCIAL AID DIRECTLY TO THE CHURCH-RELATED

  SCHOOL.  THIS FACTOR DISTINGUISHES BOTH EVERSON AND ALLEN, FOR IN

  BOTH THOSE CASES THE COURT WAS CAREFUL TO POINT OUT THAT STATE

  AID WAS PROVIDED TO THE STUDENT AND HIS PARENTS-NOT TO THE

  CHURCH-RELATED SCHOOL.  . . ."  (EMPHASIS ADDED.) 

BOTH EVERSON AND ALLEN GAVE SIGNIFICANT RECOGNITION TO THE
"BENEVOLENT NEUTRALITY" CONCEPT, AND THE COURT WAS GUIDED BY THE FACT
THAT ANY EFFECT FROM STATE AID TO PARENTS HAS A NECESSARILY ATTENUATED
IMPACT ON RELIGIOUS INSTITUTIONS WHEN COMPARED TO DIRECT AID TO SUCH
INSTITUTIONS. 

THE REIMBURSEMENT AND TAX BENEFIT PLANS TODAY STRUCK DOWN, NO LESS
THAN THE PLANS IN EVERSON AND ALLEN, ARE CONSISTENT WITH THE PRINCIPLE
OF NEUTRALITY.  NEW YORK HAS RECOGNIZED THAT PARENTS WHO ARE SENDING
THEIR CHILDREN TO NONPUBLIC SCHOOLS ARE RENDERING THE STATE A SERVICE
BY DECREASING THE COSTS OF PUBLIC EDUCATION AND BY PHYSICALLY RELIEVING
AN ALREADY OVERBURDENED PUBLIC SCHOOL SYSTEM.  SUCH PARENTS ARE
NONETHELESS COMPELLED TO SUPPORT PUBLIC SCHOOL SERVICES UNUSED BY THEM
AND TO PAY FOR THEIR OWN CHILDREN'S EDUCATION.  RATHER THAN OFFERING
"AN INCENTIVE TO PARENTS TO SEND THEIR CHILDREN TO SECTARIAN SCHOOLS,"
ANTE, AT 786, AS THE MAJORITY SUGGESTS, NEW YORK IS EFFECTUATING THE
SECULAR PURPOSE OF THE EQUALIZATION OF THE COST OF EDUCATING NEW YORK
CHILDREN THAT ARE BORNE BY PARENTS WHO SEND THEIR CHILDREN TO NONPUBLIC
SCHOOLS.  AS IN EVERSON AND ALLEN, THE IMPACT, IF ANY, ON RELIGIOUS
EDUCATION FROM THE AID GRANTED IS SIGNIFICANTLY DIMINISHED BY THE FACT
THAT THE BENEFITS GO TO THE PARENTS RATHER THAN TO THE INSTITUTIONS. 

THE INCREASING DIFFICULTIES FACED BY PRIVATE SCHOOLS IN OUR COUNTRY
ARE NO REASON AT ALL FOR THIS COURT TO READJUST THE ADMITTEDLY ROUGH
HEWN LIMITS ON GOVERNMENTAL INVOLVEMENT WITH RELIGION WHICH ARE FOUND
IN THE FIRST AND FOURTEENTH AMENDMENTS.  BUT, QUITE UNDERSTANDABLY,
THESE DIFFICULTIES CAN BE EXPECTED TO LEAD TO EFFORTS ON THE PART OF
THOSE WHO WISH TO KEEP ALIVE PLURALISM IN EDUCATION TO OBTAIN THROUGH
LEGISLATIVE CHANNELS FORMS OF PERMISSIBLE PUBLIC ASSISTANCE WHICH WERE
NOT THOUGHT NECESSARY A GENERATION AGO.  WITHIN THE LIMITS PERMITTED BY
THE CONSTITUTION, THESE DECISIONS ARE QUITE RIGHTLY HAMMERED OUT ON THE
LEGISLATIVE ANVIL.  IF THE CONSTITUTION DOES INDEED ALLOW FOR PLAY IN
THE LEGISLATIVE JOINTS, WALZ, SUPRA, AT 669, THE COURT MUST DISTINGUISH
BETWEEN A NEW EXERCISE OF POWER WITHIN CONSTITUTIONAL LIMITS AND AN
EXERCISE OF LEGISLATIVE POWER WHICH TRANSGRESSES THOSE LIMITS.  I
BELIEVE THE COURT HAS FAILED TO MAKE THAT DISTINCTION HERE, AND I
THEREFORE DISSENT. 

/1/  N. Y. LAWS 1972, C. 414, ^ 2, PROVIDED FOR FLAT TUITION GRANTS
OF $50 PER YEAR FOR PARENTS WHO HAD CHILDREN IN NONPUBLIC PRIMARY
SCHOOLS AND $100 PER YEAR FOR PARENTS WHOSE CHILDREN WERE ATTENDING
NONPUBLIC SECONDARY SCHOOLS.  TUITION REIMBURSEMENTS WERE LIMITED,
HOWEVER, TO 50% OF AMOUNTS ACTUALLY EXPENDED, AND ONLY THOSE PARENTS
WHOSE ADJUSTED GROSS INCOMES WERE LESS THAN $5,000 WERE ELIGIBLE. 

A TABLE OF ESTIMATED BENEFITS FROM THE TAX MODIFICATIONS CONTAINED
IN ^^ 4 AND 5 WAS SUBMITTED TO THE LEGISLATORS.  THAT TABLE INDICATED
THAT TAXPAYERS WHOSE ADJUSTED GROSS INCOME FELL BETWEEN $5,000 AND
$9,000 RECEIVED AN ESTIMATED $50 PER DEPENDENT ATTENDING NONPUBLIC
SCHOOLS.  THE NUMBER OF ALLOWABLE DEDUCTIONS WAS LIMITED TO THREE. 

/2/  SEE, E. G., 26 U.S.C. ^ 141 ET SEQ. CURRENTLY, THE MAXIMUM
STANDARD DEDUCTION ALLOWABLE UNDER THE INCOME TAX LAWS IS $2,000,
REGARDLESS OF A TAXPAYER'S INCOME OR THE NUMBER OF HIS DEPENDENTS.  ^
141 (B).  SIMILARLY, THERE IS A MINIMUM LOW INCOME ALLOWANCE OF $1,000
FOR THOSE WHO DO NOT QUALIFY FOR THE PERCENTAGE STANDARD DEDUCTION.  ^
141 (C).  BETWEEN THESE EXTREMES, THERE IS A STANDARD DEDUCTION OF 15%
OF ADJUSTED GROSS INCOME, ^ 141 (B). 

/3/  SEE, E. G., 26 U.S.C. ^ 151 ET SEQ. 

/4/  26 U.S.C. ^ 151 (E). 

/5/  THERE WAS NO DISCOVERY OR OTHER DEVELOPMENT OF A FACTUAL RECORD
IN THIS CASE.  THERE IS, THEREFORE, NO INDICATION AS TO HOW MUCH
TUITION PAYMENTS IN NONPUBLIC SCHOOLS AVERAGE AND WHETHER THE
RELATIVELY MINOR BENEFITS UNDER THE PLAN COULD REALISTICALLY BE SAID TO
PROVIDE ANY INCENTIVE.  AND YET THE COURT HAS STRUCK DOWN THIS PLAN,
ARGUING THAT ITS INEVITABLE RESULT IS TO ENCOURAGE PARENTS TO SEND
CHILDREN TO RELIGIOUS SCHOOLS. 

/6/  SEE, E. G., 26 U.S.C. ^^ 170, 2055, 2522. 

MR. JUSTICE WHITE, JOINED IN PART BY THE CHIEF JUSTICE AND MR.
JUSTICE REHNQUIST, DISSENTING. 

EACH OF THE STATES REGARDS THE EDUCATION OF ITS YOUNG TO BE A
CRITICAL MATTER--SO MUCH SO THAT IT COMPELS SCHOOL ATTENDANCE AND
PROVIDES AN EDUCATIONAL SYSTEM AT PUBLIC EXPENSE.  ANY OTHERWISE
QUALIFIED CHILD IS ENTITLED TO A FREE ELEMENTARY AND SECONDARY SCHOOL
EDUCATION, OR AT LEAST AN EDUCATION THAT COSTS HIM VERY LITTLE AS
COMPARED WITH ITS COST TO THE STATE. 

THIS COURT HAS HELD, HOWEVER, THAT THE DUE PROCESS CLAUSE OF THE
CONSTITUTION ENTITLES PARENTS TO SEND THEIR CHILDREN TO NONPUBLIC
SCHOOLS, SECULAR OR SECTARIAN, IF THOSE SCHOOLS ARE SUFFICIENTLY
COMPETENT TO EDUCATE THE CHILD IN THE NECESSARY SECULAR SUBJECT. 
PIERCE V. SOCIETY OF SISTERS, 268 U. S. 510 (1925).  ABOUT 10% OF THE
NATION'S CHILDREN, APPROXIMATELY 5.2 MILLION STUDENTS, NOW TAKE THIS
OPTION AND ARE NOT BEING EDUCATED IN PUBLIC SCHOOLS AT PUBLIC EXPENSE. 
UNDER STATE LAW THESE CHILDREN HAVE A RIGHT TO A FREE PUBLIC EDUCATION
AND IT WOULD NOT APPEAR UNREASONABLE IF THE STATE, RELIEVED OF THE
EXPENSE OF EDUCATING A CHILD IN THE PUBLIC SCHOOL, CONTRIBUTED TO THE
EXPENSE OF HIS EDUCATION ELSEWHERE.  THE PARENTS OF SUCH CHILDREN PAY
TAXES, INCLUDING SCHOOL TAXES.  THEY COULD RECEIVE IN RETURN A FREE
EDUCATION IN THE PUBLIC SCHOOLS.  THEY PREFER TO SEND THEIR CHILDREN,
AS THEY HAVE THE RIGHT TO DO, TO NONPUBLIC SCHOOLS THAT FURNISH THE
SATISFACTORY EQUIVALENT OF A PUBLIC SCHOOL EDUCATION BUT ALSO OFFER
SUBJECTS OR OTHER ASSUMED ADVANTAGES NOT AVAILABLE IN PUBLIC SCHOOLS. 
CONSTITUTIONAL CONSIDERATIONS ASIDE, IT WOULD BE UNDERSTANDABLE IF A
STATE GAVE SUCH PARENTS A CALL ON THE PUBLIC TREASURY UP TO THE AMOUNT
IT WOULD HAVE COST THE STATE TO EDUCATE THE CHILD IN PUBLIC SCHOOL, OR,
TO PUT IT ANOTHER WAY, UP TO THE AMOUNT THE PARENTS SAVE THE STATE BY
NOT SENDING THEIR CHILDREN TO PUBLIC SCHOOL. 

IN LIGHT OF THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT, THIS
WOULD SEEM PARTICULARLY THE CASE WHERE THE PARENT DESIRES HIS CHILD TO
ATTEND A SCHOOL THAT OFFERS NOT ONLY SECULAR SUBJECTS BUT RELIGIOUS
TRAINING AS WELL.  A STATE SHOULD PUT NO UNNECESSARY OBSTACLES IN THE
WAY OF RELIGIOUS TRAINING FOR THE YOUNG.  "WHEN THE STATE ENCOURAGES
RELIGIOUS INSTRUCTION . . . IT FOLLOWS THE BEST OF OUR TRADITIONS." 
ZORACH V. CLAUSON, 343 U. S. 306, 313 - 314 (1952); WALZ V. TAX COMM'N,
397 U. S. 664, 676 (1970).  POSITING AN OBLIGATION ON THE STATE TO
EDUCATE ITS CHILDREN, WHICH EVERY STATE ADKNOWLEDGES, IT SHOULD BE
WHOLLY ACCEPTABLE FOR THE STATE TO CONTRIBUTE TO THE SECULAR EDUCATION
OF CHILDREN GOING TO SECTARIAN SCHOOLS RATHER THAN TO INSIST THAT IF
PARENTS WANT TO PROVIDE THEIR CHILDREN WITH RELIGIOUS AS WELL AS
SECULAR EDUCATION, THE STATE WILL REFUSE TO CONTRIBUTE ANYTHING TO
THEIR SECULAR TRAINING.     HISTORICALLY, THE STATES OF THE UNION HAVE
NOT FURNISHED PUBLIC AID FOR EDUCATION IN PRIVATE SCHOOLS.  BUT IN THE
LAST FEW YEARS, AS PRIVATE EDUCATION, PARTICULARLY THE PAROCHIAL SCHOOL
SYSTEM, HAS ENCOUNTERED FINANCIAL DIFFICULTIES, WITH MANY SCHOOLS BEING
CLOSED AND MANY MORE APPARENTLY HEADED IN THAT DIRECTION, THERE HAS
DEVELOPED A VARIETY OF PROGRAMS SEEKING TO EXTEND AT LEAST SOME AID TO
PRIVATE EDUCATIONAL INSTITUTIONS.  SOME STATES HAVE PROVIDED ONLY
FRINGE BENEFITS OR AUXILIARY SERVICES.  OTHERS ATTEMPTED MORE EXTENSIVE
EFFORTS TO KEEP THE PRIVATE SCHOOL SYSTEM ALIVE.  SOME MADE DIRECT
ARRANGEMENTS WITH PRIVATE AND PAROCHIAL SCHOOLS FOR THE PURCHASE OF
SECULAR EDUCATIONAL SERVICES FURNISHED BY THOSE SCHOOLS.  /1/  OTHERS
PROVIDED TUITION GRANTS TO PARENTS SENDING THEIR CHILDREN TO PRIVATE
SCHOOLS, PERMITTED DUAL ENROLLMENTS OR SHARED-TIME ARRANGEMENTS OR
EXTENDED SUBSTANTIAL TAX BENEFITS IN SOME FORM.  /2/ 

THE DIMENSIONS OF THE SITUATION ARE NOT DIFFICULT TO OUTLINE.  /3/
THE 5.2 MILLION PRIVATE ELEMENTARY AND SECONDARY SCHOOL STUDENTS IN
1972 ATTENDED SOME 3,200 NONSECTARIAN PRIVATE SCHOOLS AND SOME 18,000
SCHOOLS THAT ARE CHURCH RELATED.  TWELVE THOUSAND OF THE LATTER WERE
ROMAN CATHOLIC SCHOOLS AND ENROLLED 4.37 MILLION PUPILS OR 83% OF THE
TOTAL NONPUBLIC SCHOOL MEMBERSHIP.  SIXTY-TWO PERCENT OF NONPUBLIC
SCHOOL STUDENTS ARE CONCENTRATED IN EIGHT INDUSTRIALIZED, URBANIZED
STATES:  NEW YORK, PENNSYLVANIA, ILLINOIS, CALIFORNIA, OHIO, NEW
JERSEY, MICHIGAN, AND MASSACHUSETTS.  /4/  EIGHTY-THREE PERCENT OF THE
NONPUBLIC SCHOOL ENROLLMENT IS TO BE FOUND IN LARGE METROPOLITAN
AREAS.  NEARLY ONE OUT OF FIVE STUDENTS IN EACH OF THE NATION'S LARGEST
CITIES IS ENROLLED IN A NONPUBLIC SCHOOL.  /5/ 

NONPUBLIC SCHOOL ENROLLMENT HAS DROPPED AT THE RATE OF 6% PER YEAR
FOR THE PAST FIVE YEARS.  PROJECTED TO 1980, IT IS ESTIMATED THAT SEVEN
STATES (THE EIGHT MENTIONED IN THE TEXT LESS MASSACHUSETTS) WILL LOSE
1,416,122 NONPUBLIC SCHOOL STUDENTS.  WHATEVER THE REASONS, THERE HAS
BEEN, AND THERE PROBABLY WILL CONTINUE TO BE, A MOVEMENT TO THE PUBLIC
SCHOOLS, WITH THE PROSPECT OF SUBSTANTIAL INCREASES IN PUBLIC SCHOOL
BUDGETS THAT ARE ALREADY UNDER INTENSE ATTACK AND WITH THE STATES AND
CITIES THAT ARE PRIMARILY INVOLVED ALREADY FACING SEVERE FINANCIAL
CRISES.  IT IS THIS PROSPECT THAT HAS PROMPTED SOME OF THESE STATES TO
ATTEMPT, BY A VARIETY OF DEVICES, TO SAVE OR SLOW THE DEMISE OF THE
NONPUBLIC SCHOOL SYSTEM, AN EDUCATIONAL RESOURCE THAT COULD DELIVER
QUALITY EDUCATION AT A COST TO THE PUBLIC SUBSTANTIALLY BELOW THE PER
PUPIL COST OF THE PUBLIC SCHOOLS.  /6/

THERE ARE, THEN, THE MOST PROFOUND REASONS, IN ADDITION TO THOSE
NORMALLY ATTENDING THE QUESTION OF THE CONSTITUTIONALITY OF A STATE
STATUTE, FOR THIS COURT TO PROCEED WITH THE UTMOST CARE IN DECIDING
THESE CASES.  IT SHOULD NOT, ABSENT A CLEAR MANDATE IN THE
CONSTITUTION, INVALIDATE THESE NEW YORK AND PENNSYLVANIA STATUTES AND
THEREBY NOT ONLY SCUTTLE STATE EFFORTS TO HOLD OFF SERIOUS FINANCIAL
PROBLEMS IN THEIR PUBLIC SCHOOLS BUT ALSO MAKE IT MORE DIFFICULT, IF
NOT IMPOSSIBLE, FOR PARENTS TO FOLLOW THE DICTATES OF THEIR CONSCIENCE
AND SEEK A RELIGIOUS AS WELL AS SECULAR EDUCATION FOR THEIR CHILDREN. 

I AM QUITE UNRECONCILED TO THE COURT'S DECISION IN LEMON V.
KURTZMAN, 403 U. S. 602 (1971).  I THOUGHT THEN, AND I THINK NOW, THAT
THE COURT'S CONCLUSION THERE WAS NOT REQUIRED BY THE FIRST AMENDMENT
AND IS CONTRARY TO THE LONG-RANGE INTERESTS OF THE COUNTRY.  I
THEREFORE HAVE LITTLE DIFFICULTY IN ACCEPTING THE NEW YORK MAINTENANCE
GRANT, WHICH DOES NOT AND COULD NOT, BY ITS TERMS, APPROACH THE ACTUAL
REPAIR AND MAINTENANCE COST INCURRED IN CONNECTION WITH THE SECULAR
EDUCATION SERVICES PERFORMED FOR THE STATE IN PAROCHIAL SCHOOLS.  BUT
ACCEPTING LEMON AND THE INVALIDATION OF THE NEW YORK MAINTENANCE GRANT,
I WOULD, WITH THE CHIEF JUSTICE AND MR. JUSTICE REHNQUIST, SUSTAIN THE
NEW YORK AND PENNSYLVANIA TUITION GRANT STATUTES AND THE NEW YORK TAX
CREDIT PROVISIONS. 

NO ONE CONTENDS THAT HE CAN DISCERN FROM THE SPARSE LANGUAGE OF THE
ESTABLISHMENT CLAUSE THAT A STATE IS FORBIDDEN TO AID RELIGION IN ANY
MANNER WHATSOEVER OR, IF IT DOES NOT MEAN THAT, WHAT KIND OF OR HOW
MUCH AID IS PERMISSIBLE.  AND ONE CANNOT SERIOUSLY BELIEVE THAT THE
HISTORY OF THE FIRST AMENDMENT FURNISHES UNEQUIVOCAL ANSWERS TO MANY OF
THE FUNDAMENTAL ISSUES OF CHURCH-STATE RELATIONS.  IN THE END, THE
COURTS HAVE FASHIONED ANSWERS TO THESE QUESTIONS AS BEST THEY CAN, THE
LANGUAGE OF THE CONSTITUTION AND ITS HISTORY HAVING LEFT THEM A WIDE
RANGE OF CHOICE AMONG MANY ALTERNATIVES.  BUT DECISION HAS BEEN
UNAVOIDABLE; AND, IN CHOOSING, THE COURTS NECESSARILY HAVE CARVED OUT
WHAT THEY DEEMED TO BE THE MOST DESIRABLE NATIONAL POLICY GOVERNING
VARIOUS ASPECTS OF CHURCH-STATE RELATIONSHIPS. 

THE COURSE OF THESE DECISIONS HAS MADE IT CLEAR THAT THE FIRST
AMENDMENT DOES NOT BAR ALL STATE AID TO RELIGION, OF WHATEVER KIND OR
EXTENT.  STATES DO, AND THEY MAY, FURNISH CHURCHES AND PAROCHIAL
SCHOOLS WITH POLICE AND FIRE PROTECTION AS WELL AS WATER AND SEWAGE
FACILITIES.  ALSO, "(ALL OF THE 50 STATES PROVIDE FOR TAX EXEMPTION OF
PLACES OF WORSHIP, MOST OF THEM DOING SO BY CONSTITUTIONAL
GUARANTEES."  WALZ V. TAX COMM'N 397 U. S., AT 676.  THIS IS A
MULTIMILLION-DOLLAR BENEFIT TO RELIGIOUS INSTITUTIONS, SEE DOUGLAS, J.,
DISSENTING, IN WALZ, SUPRA, AT 714, BUT A BENEFIT THAT THIS COURT HAS
HELD IS WHOLLY CONSISTENT WITH THE FIRST AMENDMENT.  BUS TRANSPORTATION
MAY BE FURNISHED TO STUDENTS ATTENDING PAROCHIAL SCHOOLS AS WELL AS TO
THOSE GOING TO PUBLIC SCHOOLS.  EVERSON V. BOARD OF EDUCATION, 330 U.
S. 1 (1947).  SO TOO THE STATE MAY FURNISH SCHOOL BOOKS TO SUCH
STUDENTS, BOARD OF EDUCATION V. ALLEN, 392 U. S. 236 (1968), ALTHOUGH
IN DOING SO THEY "RELIEVED THOSE CHURCHES OF AN ENORMOUS AGGREGATE COST
FOR THOSE BOOKS."  WALZ, SUPRA, AT 671 - 672.  A STATE MAY ALSO BECOME
THE OWNER OF THE PROPERTY OF A CHURCH-SPONSORED COLLEGE AND LEASE IT
BACK TO THE COLLEGE, ALL WITH THE PURPOSE AND EFFECT OF PERMITTING
REVENUE BONDS ISSUED IN CONNECTION WITH THE COLLEGE'S OPERATION TO BE
TAX EXEMPT AND WORKING A LOWER RATE OF INTEREST AND SUBSTANTIAL SAVINGS
TO THE SECTARIAN INSTITUTION.  HUNT V. MC NAIR, ANTE, P. 734. 

THE COURT THUS HAS NOT BARRED ALL AID TO RELIGION OR TO RELIGIOUS
INSTITUTIONS.  RATHER, IT HAS ATTEMPTED TO DEVISE A FORMULA THAT WOULD
HELP IDENTIFY THE KIND AND DEGREE OF AID THAT IS PERMITTED OR FORBIDDEN
BY THE ESTABLISHMENT CLAUSE.  UNTIL 1970, THE TEST FOR COMPLIANCE WITH
THE CLAUSE WAS WHETHER THERE WAS "A SECULAR LEGISLATIVE PURPOSE AND A
PRIMARY EFFECT THAT NEITHER ADVANCES NOR INHIBITS RELIGION . . .";
GIVEN A SECULAR PURPOSE, WHAT IS "THE PRIMARY EFFECT OF THE
ENACTMENT?"  SCHOOL DISTRICT OF ABINGTON TOWNSHIP V. SCHEMPP, 374 U. S.
203, 222 (1963); BOARD OF EDUCATION V. ALLEN, SUPRA, AT 243.  IN 1970,
A THIRD ELEMENT SURFACED--WHETHER THERE IS "AN EXCESSIVE GOVERNMENT
ENTANGLEMENT WITH RELIGION."  WALZ V. TAX COMM'N, SUPRA, AT 674.  THAT
ELEMENT WAS NOT FATAL TO REAL PROPERTY TAX EXEMPTIONS FOR CHURCH
PROPERTY BUT PROVED TO BE THE CRUCIAL ELEMENT IN LEMON V. KURTZMAN,
SUPRA, WHERE THE COURT STRUCK DOWN THE EFFORTS BY THE STATES OF
PENNSYLVANIA AND RHODE ISLAND TO STAVE OFF FINANCIAL DISASTER FOR THEIR
PAROCHIAL SCHOOL SYSTEMS, THE SAVING OF WHICH EACH OF THESE STATES
DEEMED IMPORTANT TO THE PUBLIC INTEREST.  IN ACCORDANCE WITH ONE
FORMULA OR THE OTHER, THE LAWS IN QUESTION FURNISHED PART OF THE COST
INCURRED BY PRIVATE SCHOOLS IN FURNISHING SECULAR EDUCATION TO
SUBSTANTIAL SEGMENTS OF THE CHILDREN IN THOSE STATES.  CONCEDING A
VALID SECULAR PURPOSE AND NOT REACHING THE QUESTION OF PRIMARY EFFECT,
THE COURT CONCLUDED THAT THE LAWS EXCESSIVELY, AND THEREFORE FATALLY,
ENTANGLED THE STATE WITH RELIGION.  WHAT APPEARED TO BE AN INSOLUBLE
DILEMMA FOR THE STATES, HOWEVER, PROVED NO INSUPERABLE BARRIER TO THE
FEDERAL GOVERNMENT IN AIDING SECTARIAN INSTITUTIONS OF HIGHER LEARNING
BY DIRECT GRANTS FOR SPECIFIED FACILITIES, TILTON V. RICHARDSON, 403 U.
S. 672 (1971).  AND HUNT V. MC NAIR, SUPRA, EVIDENCES THE DIFFICULTY IN
PERCEIVING WHEN THE STATE'S INVOLVEMENT WITH RELIGION PASSES THE PERIL
POINT. 

BUT WHATEVER MAY BE THE WEIGHT AND CONTOURS OF ENTANGLEMENT AS A
SEPARATE CONSTITUTIONAL CRITERION, IT IS OF REMOTE RELEVANCE IN THE
CASES BEFORE US WITH RESPECT TO THE VALIDITY OF TUITION GRANTS OR TAX
CREDITS INVOLVING OR REQUIRING NO RELATIONSHIPS WHATSOEVER BETWEEN THE
STATE AND ANY CHURCH OR ANY CHURCH SCHOOL.  SO, ALSO, THE COURT
CONCEDES THE STATE'S GENUINE SECULAR PURPOSE UNDERLYING THESE
STATUTES.  IT THEREFORE NECESSARILY ARRIVES AT THE REMAINING
CONSIDERATION IN THE THREEFOLD TEST WHICH IS APPARENTLY ACCEPTED FROM
PRIOR CASES:  WHETHER THE LAW IN QUESTION HAS "A PRIMARY EFFECT THAT
NEITHER ADVANCES NOR INHIBITS RELIGION."  SCHOOL DISTRICT OF ABINGTON
TOWNSHIP V. SCHEMPP, SUPRA.  WHILE PURPORTING TO ACCEPT THE STANDARD
STATED IN THIS MANNER, THE COURT STRIKES DOWN THE NEW YORK MAINTENANCE
LAW, AND FOR THE SAME REASON INVALIDATES THE TUITION GRANTS, BECAUSE
ITS "EFFECT, INEVITABLY, IS TO SUBSIDIZE AND ADVANCE THE RELIGIOUS
MISSION OF SECTARIAN SCHOOLS."  SEE ANTE, AT 779 - 780.  BUT THE TEST
IS ONE OF "PRIMARY" EFFECT NOT ANY EFFECT.  THE COURT MAKES NO ATTEMPT
AT THAT ULTIMATE JUDGMENT NECESSARILY ENTAILED BY THE STANDARD
HERETOFORE FASHIONED IN OUR CASES.  INDEED, THE COURT MERELY INVOKES
THE STATEMENT IN EVERSON V. BOARD OF EDUCATION, 330 U. S., AT 16, THAT
NO TAX CAN BE LEVIED "TO SUPPORT ANY RELIGIOUS ACTIVITIES . . . ."  BUT
ADMITTEDLY THERE WAS NO TAX LEVIED HERE FOR THE PURPOSE OF SUPPORTING
RELIGIOUS ACTIVITIES; AND THE COURT APPEARS TO ACCEPT THOSE CASES,
INCLUDING TILTON, THAT INEVITABLY INVOLVED AID OF SOME SORT OR IN SOME
AMOUNT TO THE RELIGIOUS ACTIVITIES OF PAROCHIAL SCHOOLS.  IN THOSE
CASES, THE JUDGMENT WAS THAT AS LONG AS THE AID TO THE SCHOOL COULD
FAIRLY BE CHARACTERIZED AS SUPPORTING THE SECULAR EDUCATIONAL FUNCTIONS
OF THE SCHOOL, WHATEVER SUPPORT TO RELIGION RESULTED FROM THIS DIRECT,
TILTON V. RICHARDSON, SUPRA, OR INDIRECT, EVERSON V. BOARD OF
EDUCATION, SUPRA; BOARD OF EDUCATION V. MC NAIR, SUPRA, CONTRIBUTION TO
THE SCHOOL'S OVERALL BUDGET WAS NOT VIOLATIVE OF THE PRIMARY-EFFECT
TEST OR OF THE ESTABLISHMENT CLAUSE. 

THERE IS NO DOUBT HERE THAT PENNSYLVANIA AND NEW YORK HAVE SOUGHT IN
THE CHALLENGED LAWS TO KEEP THEIR PAROCHIAL SCHOOLS SYSTEM ALIVE AND
CAPABLE OF PROVIDING ADEQUATE SECULAR EDUCATION TO SUBSTANTIAL NUMBERS
OF STUDENTS.  THIS PURPOSE SATISFIES THE COURT, EVEN THOUGH TO RESCUE
SCHOOLS THAT WOULD OT ERWISE FAIL WILL INEVITABLY ENABLE THOSE SCHOOLS
TO CONTINUE WHATEVER RELIGIOUS FUNCTIONS THEY PERFORM.  BY THE SAME
TOKEN, IT SEEMS TO ME, PRESERVING THE SECULAR FUNCTIONS OF THESE
SCHOOLS IS THE OVERRIDING CONSEQUENCE OF THESE LAWS AND THE RESULTING,
BUT INCIDENTAL, BENEFIT TO RELIGION SHOULD NOT INVALIDATE THEM. 

AT THE VERY LEAST I WOULD NOT STRIKE DOWN THESE STATUTES ON THEIR
FACE.  THE COURT'S OPINION EMPHASIZES A PARTICULAR KIND OF PAROCHIAL
SCHOOL, ONE RESTRICTED TO STUDENTS OF PARTICULAR RELIGIOUS BELIEFS AND
CONDITIONING ATTENDANCE ON RELIGIOUS STUDY.  CONCEDEDLY, THERE ARE MANY
PAROCHIAL SCHOOLS THAT DO NOT IMPOSE SUCH RESTRICTIONS.  WHERE THEY DO
NOT, IT IS EVEN MORE DIFFICULT FOR ME TO UNDERSTAND WHY THE PRIMARY
EFFECT OF THESE STATUTES IS TO ADVANCE RELIGION.  I DO NOT THINK IT IS
AND THEREFORE DISSENT FROM THE COURT'S JUDGMENT INVALIDATING THE
CHALLENGED NEW YORK AND PENNSYLVANIA STATUTES. 

THE CHIEF JUSTICE AND MR. JUSTICE REHNQUIST JOIN THIS OPINION
INSOFAR AT IT RELATES TO THE NEW YORK AND PENNSYLVANIA TUITION GRANT
STATUTES AND THE NEW YORK TAX CREDIT STATUTE. 

/1/  THIS KIND OF PROGRAM WAS ADOPTED BY PENNSYLVANIA AND RHODE
ISLAND AND WAS DECLARED INVALID IN LEMON V. KURTZMAN, 403 U. S. 602
(1971). 

/2/  BASED ON STATE AID TO NON-PUBLIC SCHOOLS, A PUBLICATION OF THE
DEPARTMENT OF SPECIAL PROJECTS, NATIONAL CATHOLIC EDUCATIONAL
ASSOCIATION, THE FOLLOWING SUMMARIZES, AS OF FEBRUARY 1, 1972, THE
VARIOUS TYPES OF AID TO NONPUBLIC SCHOOLS AVAILABLE IN THE VARIOUS
STATES, EXCLUSIVE OF THOSE TYPES OF SUPPORT FINALLY DECLARED
UNCONSTITUTIONAL BY THIS COURT: DIRECT AID PROGRAMS: 

PARENTAL GRANTS OR REIMBURSEMENT SCHEMES:  5 STATES (INCLUDING NEW
YORK AND PENNSYLVANIA). 

DUAL ENROLLMENT (SHARED TIME):  9 STATES 

TAX CREDITS:  6 STATES (INCLUDING NEW YORK). 

LEASING OF NON-PUBLIC SCHOOL FACILITIES BY PUBLIC SCHOOL SYSTEMS: 4
STATES. 

EDUCATIONAL OPPORTUNITIES FOR RURAL STUDENTS:  1 STATE (ALASKA). 

INNOVATIVE PROGRAMS:  1 STATE (ILLINOIS). 

EXEMPTION FROM STATE SALES TAX FOR EDUCATIONAL AND JANITORIAL
SUPPLIES:  1 STATE (NORTH DAKOTA).  AUXILIARY SERVICES OF BENEFITS: 

TRANSPORTATION: 24 STATES PLUS DISTRICT OF COLUMBIA. 

TEXTBOOKS AND INSTRUCTIONAL MATERIALS: 14 STATES. 

HEALTH AND WELFARE SERVICES (I. E., SCHOOL PHYSICIAN, NURSE, DENTAL
SERVICES, HYGIENIST, PSYCHOLOGIST, SPEECH THERAPIST, SOCIAL WORKER,
ETC.): 15 STATES. 

DRIVER EDUCATION:  7 STATES (APPLIES ONLY TO DUALLY ENROLLED
STUDENTS IN SOUTH DAKOTA). 

SERVICES FOR EDUCATIONALLY DISADVANTAGED CHILDREN, EDUCATIONAL
TESTING, AND MISCELLANEOUS (PRINCIPALLY AID SERVICES FOR DEAF, BLIND,
HANDICAPPED, OR RETARDED CHILDREN; EDUCATIONAL TESTING; REMIDIAL
PROGRAMS, ETC):  11 STATES. 

SCHOOL LUNCHES:  2 STATES (NEW YORK AND LOUISIANA). 

RELEASED TIME:  2 STATES (MICHIGAN AND SOUTH DAKOTA). 

VOCATIONAL EDUCATION:  2 STATES (OHIO AND CALIFORNIA). 

CENTRAL PURCHASING OF SUPPLIES:  2 STATES (OREGON AND WASHINGTON). 
PARTICIPATION OF LAY TEACHERS IN NON-PUBLIC SCHOOLS IN PUBLIC SCHOOL
TEACHERS RETIREMENT FUND SCHEME:  1 STATE (NORTH DAKOTA). 

A TOTAL OF 16 STATES NOW EXTEND ONE OR MORE TYPES OF DIRECT AID.  33
STATES, INCLUDING ALMOST ALL OF THE FOREGOING 16, OFFER AUXILIARY
SERVICES OR BENEFITS.  AT LEAST 19 STATES HAVE CONSTITUTIONAL OR
STATUTORY BARRIERS TO ANY KIND OF DIRECT AID TO PAROCHIAL SCHOOLS. 

/3/  THE DATA IN THIS AND THE FOLLOWING PARAGRAPH OF THE TEXT ARE
TAKEN FROM FINAL REPORT, PRESIDENT'S PANEL ON NONPUBLIC EDUCATION,
1972, PP. 5 - 6, 15 - 19.  SEE ALSO HEARINGS ON H. R. 16141 AND OTHER
PENDING PROPOSALS, BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 92D
CONG., 2D SESS., 118 - 119, 127 - 131. 

/4/  NONPUBLIC ENROLLMENTS IN THESE STATES ARE AS FOLLOWS:  NEW
YORK, 789,110; PENNSYLVANIA, 518, 435; ILLINOIS, 451,724, CALIFORNIA,
398,981; OHIO, 339,435; NEW JERSEY, 298,548; MICHIGAN, 264,089; AND
MASSACHUSETTS, 205,011. 

/5/  ENROLLMENTS IN NONPUBLIC SCHOOLS IN 15 OF THE COUNTRY'S LARGEST
CITIES ARE AS FOLLOWS:  (TABLE OMITTED). 

/6/  THE DIRECT-AID PROGRAMS FOR NONPUBLIC SCHOOLS AVAILABLE IN THE
EIGHT PRINCIPALLY AFFECTED STATES LISTED IN N. 4 ARE AS FOLLOWS: NEW
YORK 

A. FULL TUITION AND BOARD FOR DEAF AND BLIND CHILDREN EDUCATED AT
STATE-APPROVED NONPUBLIC SCHOOLS. 

B. TUITION (UP TO $2,000) FOR HANDICAPPED CHILDREN EDUCATED AT
NONPUBLIC SCHOOLS. 

C. TEACHER SALARY PAYMENTS TO NONPUBLIC SCHOOLS OPERATED BY
INCORPORATED ORPHAN ASYLUM SOCIETIES. 

D. OMNIBUS EDUCATION ACT. 

1.  HEALTH AND SAFETY GRANTS FOR NONPUBLIC SCHOOLS QUALIFYING UNDER
TITLE IV OF THE HIGHER EDUCATION ACT OF 1965 AS SERVING AREAS WITH HIGH
CONCENTRATIONS OF POVERTY FAMILIES. 

2.  TUITION ASSISTANCE GRANTS FOR PARENTS WITH TAXABLE INCOMES UNDER
$5,000. 

3.  TAX CREDIT ASSISTANCE FOR PARENTS WITH INCOMES FROM $9,000 -
$25,000. 

E. MANDATED SERVICES ACT. 

1.  REIMBURSEMENT OF NONPUBLIC SCHOOLS FOR COSTS OF FULFILLING STATE
ADMINISTRATIVE REQUIREMENTS.  PENNSYLVANIA 

A. DUAL ENROLLMENT. 

B. PARENT REIMBURSEMENT ACT. 

1.  REIMBURSEMENT OF PARENTS FOR ACTUAL COSTS OF NONPUBLIC EDUCATION
OF THEIR CHILDREN UP TO $75 FOR ELEMENTARY SCHOOL STUDENTS AND $150 FOR
SECONDARY SCHOOL STUDENTS.  ILLINOIS 

A. GRANTS TO CHILDREN FROM POVERTY FAMILIES FOR ACTUAL COSTS OF
NONPUBLIC EDUCATION UP TO AMOUNT OF STATE AID CHILD WOULD RECEIVE IF
ATTENDING PUBLIC SCHOOL. 

B. SPECIAL GRANTS FOR INNOVATIVE PROGRAMS.  CALIFORNIA 

A. TAX CREDIT ASSISTANCE FOR PARENTS WITH INCOMES RANGING TO
$19,000.  MAXIMUM CREDIT IS $125 PER CHILD PER YEAR IN NONPUBLIC
SCHOOL.  OHIO 

A. DUAL ENROLLMENT WITH RESPECT TO VOCATIONAL TRAINING. 

B. TAX CREDIT ASSISTANCE FOR PARENTS OF NONPUBLIC SCHOOL STUDENTS UP
TO $90 PER CHILD PER YEAR.  NEW JERSEY 

NO DIRECT AID.  MICHIGAN 

A. RELEASED TIME. 

B. DUAL ENROLLMENT. 

RECENT STATE CONSTITUTIONAL AMENDMENT PRECLUDES ALL OTHER FORMS OF
DIRECT AID.  MASSACHUSETTS 

DIRECT AID IS BARRED BY STATE CONSTITUTIONAL PROVISION. 

THE ESTIMATED 1970 POPULATION (IN THOUSANDS) OF CATHOLICS IN
RELATION TO THE TOTAL POPULATION IN EACH OF THESE EIGHT STATES WAS AS
FOLLOWS:  (TABLE OMITTED). 

LEO PFEFFER ARGUED THE CAUSE FOR APPELLANTS IN NO. 72 - 694 AND FOR
APPELLEES IN NOS. 72 - 753, 72 - 791, AND 72 - 929.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF AND BURT NEUBORNE.  JEAN M. COON, ASSISTANT
SOLICITOR GENERAL OF NEW YORK, ARGUED THE CAUSE FOR NYQUIST ET AL.,
APPELLEES IN NO. 72 - 694 AND APPELLANTS IN NO. 72 - 791.  WITH HER ON
THE BRIEF WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, AND RUTH KESSLER
TOCH, SOLICITOR GENERAL.  PORTER R. CHANDLER ARGUED THE CAUSE FOR
APPELLANTS IN NO. 72 - 929 AND FOR APPELLEES BOYLAN ET AL. IN NO. 72 -
694.  WITH HIM ON THE BRIEF WAS RICHARD E. NOLAN.  JOHN F. HAGGERTY
ARGUED THE CAUSE FOR APPELLANT IN NO. 72 - 753.  WITH HIM ON THE BRIEF
WAS LOUIS P. CONTIGUGLIA. 

BRIEFS OF AMICI CURIAE IN NO. 72 - 694 WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WOOD, HARRIET S. SHAPIRO,
WALTER H. FLEISCHER, AND THOMAS G. WILSON FOR THE UNITED STATES: BY
STEPHEN J. POLLAK, BENJAMIN W. BOLEY, JOHN D. ALDOCK AND DAVID RUBIN
FOR THE NATIONAL EDUCATION ASSOCIATION ET AL.: AND BY JOSEPH B.
FRIEDMAN FOR THE BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS.  BRIEFS OF
AMICI CURIAE IN ALL FOUR CASES WERE FILED BY HENRY C. CLAUSEN FOR
UNITED AMERICANS FOR PUBLIC SCHOOLS; BY NATHAN LEWIN AND JULIUS BERMAN
FOR THE NATIONAL JEWISH COMMISSION ON LAW AND PUBLIC AFFAIRS; BY VICTOR
A. SACHSE AND ROBERT P. BREAZEALE FOR SIDNEY A. SEEGERS ET AL.: AND BY
DON H. REUBEN AND LAWRENCE GUNNELS FOR LAWRENCE E. KLINGER. 
..END :













SLOAN V. LEMON 413 U.S. 825 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF PENNSYLVANIA 

     NO. 72 - 459.  ARGUED APRIL 16, 1973--DECIDED JUNE 25, 1973;
340

  F.SUPP.  1356, AFFIRMED.  TOGETHER WITH NO. 72 - 620, CROUTER V.

  LEMON ET AL, ALSO ON APPEAL FROM THE SAME COURT. 


    SUBSEQUENT TO LENON V. KURTZMAN, 403 U.S. 602, PENNSYLVANIA

  ENACTED THE "PARENT REIMBURSEMENT ACT FOR NONPUBLIC EDUCATION,"

  PROVIDING FUNDS TO REIMBURSE PARENTS FOR A PORTION OF TUITION

  EXPENSES INCURRED IN SENDING THEIR CHILDREN TO NONPUBLIC

  SCHOOLS.  THE THREE-JUDGE DISTRICT COURT HELD THAT THE LAW

  VIOLATED THE ESTABLISHMENT CLAUSE, GRANTED PLAINTIFFS' MOTION FOR

  SUMMARY JUDGMENT, AND PERMANENTLY ENJOINED DISBURSEMENT OF ANY

  FUNDS UNDER THE ACT.  THE COURT ALSO INDICATED THAT "MORE THAN

  90% OF THE CHILDREN ATTENDING NONPUBLIC SCHOOLS IN . . .

  PENNSYLVANIA ARE ENROLLED IN SCHOOLS THAT ARE CONTROLLED BY

  RELIGIOUS ORGANIZATIONS OR THAT HAVE THE PURPOSE OF PROPAGATING

  AND PROMOTING RELIGIOUS FAITH," AND RULED THAT THE ACT COULD NOT

  PROPERLY BE VIEWED AS CONTAINING A SEPARABLE PROVISION FOR AID TO

  PARENTS WHOSE CHILDREN ATTENDED, NONSECTARIAN, NONPUBLIC

  SCHOOLS.  HELD: 

     1.  THERE IS NO CONSTITUTIONALLY SIGNIFICANT DIFFERENCE
BETWEEN

  PENNSYLVANIA'S TUITION GRANT SCHEME, WITH ITS INTENDED

  CONSEQUENCE OF PRESERVING AND SUPPORTING RELIGION-ORIENTED

INSTITUTIONS, AND NEW YORK'S TUITION REIMBURSEMENT PROGRAM HELD

  VIOLATIVE OF THE ESTABLISHMENT CLAUSE IN COMMITTEE FOR PUBLIC

  EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, ANTE, P. 756.  PP. 828

  - 833. 

     2.  THE ACT IS NOT SEVERABLE, BUT EVEN IF IT WERE CLEARLY

  SEVERABLE, VALID AID TO NONPUBLIC, NONSECTARIAN SCHOOLS CAN

  PROVIDE NO BASIS FOR SUSTAINING AID TO SECTARIAN SCHOOLS.  THE

  EQUAL PROTECTION CLAUSE CANNOT BE RELIED UPON TO SUSTAIN A

  PROGRAM VIOLATIVE OF THE ESTABLISHMENT CLAUSE.  PP. 833 - 835. 

  POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED. 

  BURGER, C. J., FILED A DISSENTING OPINION, IN WHICH WHITE AND

  REHNQUIST, JJ., JOINED, ANTE, P. 798.  WHITE, J., FILED A

  DISSENTING OPINION, IN WHICH BURGER, C. J., AND REHNQUIST, J.,

  JOINED, ANTE, P. 813. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

ON JUNE 28, 1971, THIS COURT HANDED DOWN LEMON V. KURTZMAN, 403 U. S.
602, IN WHICH PENNSYLVANIA'S "NONPUBLIC ELEMENTARY AND SECONDARY
EDUCATION ACT" WAS HELD UNCONSTITUTIONAL AS VIOLATIVE OF THE
ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT.  THAT LAW AUTHORIZED THE
STATE TO REIMBURSE NONPUBLIC, SECTARIAN SCHOOLS FOR THEIR EXPENDITURES
ON TEACHERS' SALARIES, TEXTBOOKS, AND INSTRUCTIONAL MATERIALS USED IN
SPECIFIED "SECULAR" COURSES.  THE COURT'S RULING WAS PREMISED ON ITS
DETERMINATION THAT THE RESTRICTIONS AND STATE SUPERVISION REQUIRED TO
GUARANTEE THAT THE SPECIFIED AID WOULD BENEFIT ONLY THE NONRELIGIOUS
ACTIVITIES OF THE SCHOOLS WOULD FOSTER "EXCESSIVE ENTANGLEMENT" BETWEEN
GOVERNMENT AND RELIGION.  ID., AT 620 - 622. 

ON AUGUST 27, 1971, THE PENNSYLVANIA GENERAL ASSEMBLY PROMULGATED A
NEW AID LAW, ENTITLED THE "PARENT REIMBURSEMENT ACT FOR NONPUBLIC
EDUCATION," PROVIDING FUNDS TO REIMBURSE PARENTS FOR A PORTION OF
TUITION EXPENSES INCURRED IN SENDING THEIR CHILDREN TO NONPUBLIC
SCHOOLS.  SHORTLY THEREAFTER, THIS SUIT, CHALLENGING THE ENACTMENT AND
SEEKING DECLARATORY AND NJUNCTIVE RELI   W S FILED IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.  THE
PLAINTIFFS WERE PENNSYLVANIA RESIDENTS AND TAXPAYERS WHO HAD PAID THE
STATE TAX USED TO FINANCE THE AID PROGRAM, AND AT LEAST ONE PLAINTIFF
WAS ALSO THE PARENT OF A CHILD ATTENDING A PUBLIC SCHOOL WITHIN THE
STATE.  THE STATE TREASURER WAS NAMED AS THE DEFENDANT AND WAS SUED IN
THAT CAPACITY.  MOTIONS TO INTERVENE ON THE SIDE OF THE STATE WERE
GRANTED TO A NUMBER OF PARENTS WHOSE CHILDREN WERE ENROLLED IN
NONPUBLIC SCHOOLS AND WHO WERE THEREFORE ENTITLED TO PAYMENTS UNDER THE
CHALLENGED LAW. 

THE DEFENDANT AND INTERVENORS FILED A MOTION TO DISMISS THE
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MIGHT BE
GRANTED.  THE MOTION WAS CONSIDERED BY A PROPERLY CONSTITUTED THREE
JUDGE DISTRICT COURT.  ON APRIL 6, 1972, THE PANEL DENIED THE MOTION IN
A FULL OPINION EXPLICATING ITS VIEWS AND HOLDING THAT THE LAW VIOLATED
THE ESTABLISHMENT CLAUSE.  340 F. SUPP. 1356 (ED PA.).  ON THE BASIS OF
THAT OPINION, THE DISTRICT COURT SUBSEQUENTLY ISSUED AN ORDER GRANTING
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND PERMANENTLY ENJOINING THE
DISBURSEMENT OF ANY FUNDS UNDER THE ACT.  ITS ORDER ALSO RULED THAT THE
ACT COULD NOT PROPERLY BE VIEWED AS CONTAINING A SEPARABLE PROVISION
FOR AID TO PARENTS WHOSE CHILDREN ATTENDED NONSECTARIAN, NONPUBLIC
SCHOOLS. 

DIRECT APPEALS WERE DOCKETED IN THIS COURT BY THE STATE TREASURER
AND BY THE SEVERAL INTERVENORS.  /1/  WE NOTED PROBABLE JURISDICTION,
CONSOLIDATED THE APPEALS FOR ORAL ARGUMENT, AND SCHEDULED THE CASES TO
BE ARGUED WITH THE SEVERAL APPEALS IN A CASE FROM NEW YORK INVOLVING AN
ISSUE IN COMMON WITH THIS CASE.  410 U. S. 907 (1973).  WE HAVE TODAY
HELD IN COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST,
ANTE, P. 756, THAT NEW YORK'S TUITION REIMBURSEMENT LEGISLATION HAS THE
IMPERMISSIBLE EFFECT OF ADVANCING RELIGIOUS INSTITUTIONS AND IS
THEREFORE UNCONSTITUTIONAL UNDER THE ESTABLISHMENT CLAUSE.  BECAUSE WE
FIND NO CONSTITUTIONALLY SIGNIFICANT DIFFERENCE BETWEEN NEW YORK'S AND
PENNSYLVANIA'S PROGRAMS, THAT DECISION COMPELS OUR AFFIRMANCE OF THE
DISTRICT COURT'S DECISION HERE. 

        I 

PENNSYLVANIA'S "PARENT REIMBURSEMENT ACT FOR NONPUBLIC EDUCATION"
/2/ PROVIDES FOR REIMBURSEMENT TO PARENTS WHO PAY TUITION FOR THEIR
CHILDREN TO ATTEND THE STATE'S NONPUBLIC ELEMENTARY AND SECONDARY
SCHOOLS.  QUALIFYING PARENTS ARE ENTITLED TO RECEIVE $75 FOR EACH
DEPENDENT ENROLLED IN AN ELEMENTARY SCHOOL, AND $150 FOR EACH DEPENDENT
IN A SECONDARY SCHOOL, UNLESS THAT AMOUNT EXCEEDS THE AMOUNT OF TUITION
ACTUALLY PAID.  THE MONEY TO FUND THIS PROGRAM IS TO BE DERIVED FROM A
PORTION OF THE REVENUES FROM THE STATE'S TAX ON CIGARETTE SALES, AND IS
TO BE ADMINISTERED BY A FIVE-MEMBER COMMITTEE APPOINTED BY THE
GOVERNOR, KNOWN AS THE "PENNSYLVANIA PARENT ASSISTANCE AUTHORITY."  IN
AN EFFORT TO AVOID THE "ENTANGLEMENT" PROBLEM THAT FLOWED ITS PRIOR AID
STATUTE, LEMON V. KURTZMAN, SUPRA, THE NEW LEGISLATION SPECIFICALLY
PRECLUDES THE ADMINISTERING AUTHORITY FROM HAVING ANY "DIRECTION,
SUPERVISION OR CONTROL OVER THE POLICY DETERMINATIONS, PERSONNEL,
CURRICULUM, PROGRAM OF INSTRUCTION OR ANY OTHER ASPECT OF THE
ADMINISTRATION OR OPERATION OF ANY NONPUBLIC SCHOOL OR SCHOOLS."  /3/
SIMILARLY, THE STATUTE IMPOSES NO RESTRICTIONS OR LIMITATIONS ON THE
USES TO WHICH THE REIMBURSEMENT ALLOTMENTS CAN BE PUT BY THE QUALIFYING
PARENTS. 

LIKE THE NEW YORK TUITION PROGRAM, THE PENNSYLVANIA LAW IS PREFACED
BY "LEGISLATIVE FINDINGS," WHICH EMPHASIZE ITS UNDERLYING SECULAR
PURPOSES:  PARENTS WHO SEND THEIR CHILDREN TO NONPUBLIC SCHOOLS REDUCE
THE TOTAL COST OF PUBLIC EDUCATION; "INFLATION, PLUS SHARPLY RISING
COSTS OF EDUCATION, NOW COMBINE TO PLACE IN JEOPARDY THE ABILITY OF
SUCH PARENTS FULLY TO CARRY THIS BURDEN"' IF THE STATE'S 500,000
NONPUBLIC SCHOOL CHILDREN WERE TO TRANSFER TO THE PUBLIC SCHOOLS, THE
ANNUAL OPERATING COSTS TO THE STATE WOULD BE $400 MILLION, AND THE
ADDED CAPITAL COSTS WOULD EXCEED $1 BILLION; THEREFORE, "PARENTS WHO
MAINTAIN STUDENTS IN NONPUBLIC SCHOOLS PROVIDE A VITAL SERVICE" AND
DESERVE AT LEAST PARTIAL REIMBURSEMENT FOR ALLEVIATING AN OTHERWISE
"INTOLERABLE PUBLIC BURDEN."  /4/  WE CERTAINLY DO NOT QUESTION NOW,
ANY MORE THAN WE DID TWO TERMS AGO IN LEMON, /5/  THE REALITY AND
LEGITIMACY OF PENNSYLVANIA'S SECULAR PURPOSES.  SEE COMMITTEE FOR
PUBLIC EDUCATION & RELIGIOUS LIBERTY V. NYQUIST, ANTE, AT 773. 

WE TURN, THEN, TO CONSIDER THE NEW LAW'S EFFECT.  AS THE CASE WAS
DECIDED IN THE DISTRICT COURT INITIALLY ON DEFENDANT'S AND INTERVENORS'
MOTIONS TO DISMISS, THE COURT ACCEPTED AS TRUE PLAINTIFFS' ALLEGATION
WITH RESPECT TO THE IDENTIFYING CHARACTERISTICS OF THE SCHOOLS
QUALIFYING UNDER THE ACT.  340 F. SUPP., AT 1359.  THOSE
CHARACTERISTICS ARE LARGELY THE SAME AS THE ONES USED BY THE DISTRICT
COURT TO DESCRIBE TYPICAL SECTARIAN SCHOOLS IN NEW YORK.  ANTE, AT 767
768.  IN ITS SUBSEQUENT ORDER GRANTING SUMMARY JUDGMENT IN PLAINTIFFS'
FAVOR, THE DISTRICT COURT INDICATED THAT 'MORE THAN 90% OF THE CHILDREN
ATTENDING NONPUBLIC SCHOOLS IN THE COMMONWEALTH OF PENNSYLVANIA ARE
ENROLLED IN SCHOOLS THAT ARE CONTROLLED BY RELIGIOUS ORGANIZATIONS OR
THAT HAVE THE PURPOSE OF PROPAGATING AND PROMOTING RELIGIOUS FAITH." 
APP. 87A.  THIS FINDING IS CONSISTENT WITH THE EVIDENCE IN LEMON, IN
WHICH THE COURT NOTED THAT MORE THAN 96% OF THE CHILDREN ATTENDING
NONPUBLIC SCHOOLS IN PENNSYLVANIA IN 1969 "ATTENDED) CHURCH-RELATED
SCHOOLS, AND MOST OF THESE SCHOOLS ARE AFFILIATED WITH THE ROMAN
CATHOLIC CHURCH."  403 U. S., AT 610. 

FOR PURPOSES OF DETERMINING WHETHER THE PENNSYLVANIA TUITION
REIMBURSEMENT PROGRAM HAS THE IMPERMISSIBLE EFFECT OF ADVANCING
RELIGION, WE FIND NO CONSTITUTIONALLY SIGNIFICANT DISTINCTIONS BETWEEN
THIS LAW AND THE ONE DECLARED INVALID TODAY IN NYQUIST.  EACH
AUTHORIZES THE STATES TO USE TAX-RAISED FUNDS FOR TUITION
REIMBURSEMENTS PAYABLE TO PARENTS WHO SEND THEIR CHILDREN TO NONPUBLIC
SCHOOLS.  NEITHER TELLS PARENTS HOW THEY MUST SPEND THE AMOUNT
RECEIVED.  WHILE THE PENNSYLVANIA GRANTS ARE MORE GENEROUS ($75 TO $150
AS OPPOSED TO $50 TO $100), AND WHILE PENNSYLVANIA IMPOSES NO CEILING
ON THE NUMBER OF CHILDREN FOR WHOM PARENTS MAY CLAIM TUITION
REIMBURSEMENT OR ON THE PERCENTAGE OF THE TUITION BILL FOR WHICH
PARENTS MAY BE REIMBURSED, /6/  THESE CONSIDERATIONS ARE IRRELEVANT TO
THE FIRST AMENDMENT QUESTION. 

NEITHER THE STATE TREASURER NOR APPELLANT-INTERVENOR IN NO. 72 - 620
HAS SUGGESTED ANY WAY IN WHICH THE PRESENT LAW MIGHT BE DISTINGUISHED
FROM THE ONE IN QUESTION IN NYQUIST.  THE INTERVENORS IN NO. 72 - 459
HAVE, HOWEVER, PROFFERED A DISTINCTION WHICH DESERVES DISCUSSION
BECAUSE IT SERVES TO UNDERLINE THE BASIS FOR OUR RULING IN THESE
CASES.  INTERVENORS SUGGEST THAT NEW YORK'S LAW MIGHT BE DIFFERENTIATED
ON THE GROUND THAT, BECAUSE TUITION GRANTS THERE WERE AVAILABLE ONLY TO
PARENTS IN AN EXTREMELY LOW INCOME BRACKET (LESS THAN $5,000 OF TAXABLE
INCOME), IT WOULD BE REASONABLE TO PREDICT THAT THE GRANT WOULD, IN
FACT, BE USED TO PAY TUITION, RENDERING THE PARENT A MERE "CONDUIT" FOR
PUBLIC AID TO RELIGIOUS SCHOOLS.  SINCE PENNSYLVANIA AUTHORIZES GRANTS
TO ALL PARENTS OF CHILDREN IN NONPUBLIC SCHOOLS--REGARDLESS OF INCOME
LEVEL--IT IS ARGUED THAT NO SUCH ASSUMPTION CAN BE MADE AS TO HOW
INDIVIDUAL PARENTS WILL SPEND THEIR REIMBURSED AMOUNTS.  /7/ 

OUR DECISION, HOWEVER, IS NOT DEPENDENT UPON ANY SUCH SPECULATION. 
INSTEAD WE LOOK TO THE SUBSTANCE OF THE PROGRAM, AND NO MATTER HOW IT
IS CHARACTERIZED ITS EFFECT REMAINS THE SAME.  THE STATE HAS SINGLED
OUT A CLASS OF ITS CITIZENS FOR A SPECIAL ECONOMIC BENEFIT.  WHETHER
THAT BENEFIT BE VIEWED AS A SIMPLE TUITION SUBSIDY, AS AN INCENTIVE TO
PARENTS TO SEND THEIR CHILDREN TO SECTARIAN SCHOOLS, OR AS A REWARD FOR
HAVING DONE SO, AT BOTTOM ITS INTENDED CONSEQUENCE IS TO PRESERVE AND
SUPPORT RELIGION-ORIENTED INSTITUTIONS.  WE THINK IT PLAIN THAT THIS IS
QUITE UNLIKE THE SORT OF "INDIRECT" AND "INCIDENTAL" BENEFITS THAT
FLOWED TO SECTARIAN SCHOOLS FROM PROGRAMS AIDING ALL PARENTS BY
SUPPLYING BUS TRANSPORTATION AND SECULAR TEXTBOOKS FOR THEIR CHILDREN. 
SUCH BENEFITS WERE CAREFULLY RESTRICTED TO THE PURELY SECULAR SIDE OF
CHURCH-AFFILIATED INSTITUTIONS AND PROVIDED NO SPECIAL AID FOR THOSE
WHO HAD CHOSEN TO SUPPORT RELIGIOUS SCHOOLS.  YET SUCH AID APPROACHED
THE "VERGE" OF THE CONSTITUTIONALLY IMPERMISSIBLE.  EVERSON V. BOARD OF
EDUCATION, 330 U. S. 1, (1947).  IN LEMON, WE DECLINED TO ALLOW EVERSON
TO BE USED AS THE "PLATFORM FOR YET FURTHER STEPS" IN GRANTING
ASSISTANCE TO "INSTITUTIONS WHOSE LEGITIMATE NEEDS ARE GROWING AND
WHOSE INTERESTS HAVE SUBSTANTIAL POLITICAL SUPPORT."  403 U. S., AT
624.  AGAIN TODAY WE DECLINE TO APPROACH OR OVERSTEP THE "PRECIPICE"
AGAINST WHICH THE ESTABLISHMENT CALUSE PROTECTS.  WE HOLD THAT
PENNSYLVANIA'S TUITION GRANT SCHEME VIOLATES THE CONSTITUTIONAL MANDATE
AGAINST THE "SPONSORSHIP" OR "FINANCIAL SUPPORT" OF RELIGION OR
RELIGIOUS INSTITUTIONS.  WALZ V. TAX COMM'N, 397 U. S. 664, 668
(1970).  /8/

        II 

APART FROM THE ESTABLISHMENT CLAUSE ISSUES CENTRAL TO THIS CASE,
APPELLANT-INTERVENORS IN NO. 72 - 459 MAKE AN EQUAL PROTECTION CLAIM
THAT WAS NOT DIRECTLY RULED ON BY THE DISTRICT COURT.  THESE
INTERVENORS ARE 12 PARENTS WHOSE CHILDREN ATTEND NONPUBLIC SCHOOLS. 
TWO PARENTS, THE WATSONS, SEND THEIR CHILD TO A NONSECTARIAN SCHOOL
WHILE THE REMAINDER SEND THEIR CHILDREN TO SECTARIAN SCHOOLS.  THE
DISTRICT COURT'S FINAL ORDER ENJOINED THE STATE TREASURER FROM
DISBURSING FUNDS TO ANY PARENTS, IRRESPECTIVE WHETHER THEIR CHILDREN
ATTENDED SECTARIAN OR NONSECTARIAN SCHOOLS.  THE COURT CONSIDERED AND
REJECTED THE ARGUMENT THAT THE STATE LAW SHOULD BE TREATED "AS
CONTAINING A SEPARABLE PROVISION FOR AID TO PARENTS OF CHILDREN
ATTENDING NONPUBLIC SCHOOLS THAT ARE NOT CHURCH RELATED."  /9/
ALTHOUGH THE ACT CONTAINED A SEVERABILITY CLAUSE, /10/  THE COURT
REASONED THAT, IN VIEW OF THE FACT THAT SO SUBSTANTIAL A MAJORITY OF
THE LAW'S DESIGNATED BENEFICIARIES WERE AFFILIATED WITH RELIGIOUS
ORGANIZATIONS, IT COULD NOT BE ASSUMED THAT THE STATE LEGISLATURE WOULD
HAVE PASSED THE LAW TO AID ONLY THOSE ATTENDING THE RELATIVELY FEW
NONSECTARIAN SCHOOLS.  /11/ 

APPELLANTS ASK THIS COURT TO DECLARE THE PROVISIONS SEVERABLE AND
THEREBY TO ALLOW TUITION REIMBURSEMENT FOR PARENTS OF CHILDREN
ATTENDING SCHOOLS THAT ARE NOT CHURCH-RELATED.  IF THE PARENTS OF
CHILDREN WHO ATTEND NONSECTARIAN SCHOOLS RECEIVE ASSISTANCE, THEIR
ARGUMENT CONTINUES, PARENTS OF CHILDREN WHO ATTEND SECTARIAN SCHOOLS
ARE ENTITLED TO THE SAME AID AS A MATTER OF EQUAL PROTECTION.  THE
ARGUMENT IS THOROUGHLY SPURIOUS.  IN THE FIRST PLACE, WE HAVE BEEN
SHOWN NO REASON TO UPSET THE DISTRICT COURT'S CONCLUSION THAT AID TO
THE NONSECTARIAN SCHOOL COULD NOT BE SEVERED FROM AID TO THE
BETWEEN SECTARIAN AND NONSECTARIAN SCHOOLS, AND TO APPROVE SUCH A
DISTINCTION HERE WOULD BE TO CREATE A PROGRAM QUITE DIFFERENT FROM THE
ONE THE LEGISLATURE ACTUALLY ADOPTED.  SEE CHAMPLIN REFINING CO. V.
CORPORATION COMMISSION OF OKLAHOMA, 286 U. S. 210, 234 (1932); CF.
TILTON V. RICHARDSON, 403 U. S. 672, 683 - 684 (1971) (PLURALITY
OPINION).  EVEN IF THE ACT WERE CLEARLY SEVERABLE, VALID AID TO
NONPUBLIC, NONSECTARIAN SCHOOLS WOULD PROVIDE NO LEVER FOR AID TO THEIR
REGARDED AS A BLUDGEON WITH WHICH TO COMPEL A STATE TO VIOLATE OTHER
PROVISIONS OF THE CONSTITUTION.  HAVING HELD THAT TUITION
REIMBURSEMENTS FOR THE BENEFIT OF SECTARIAN SCHOOLS VIOLATE THE
ESTABLISHMENT CLAUSE, NOTHING IN THE EQUAL PROTECTION CLAUSE WILL
SUFFICE TO REVIVE THAT PROGRAM.  CF. BRU.S.C.A. V. STATE BOARD OF
EDUCATION, 405 U. S. 1050 (1972), AFF'G 332 F. SUPP. 275 (ED MO.
1971). 

        III     IN HOLDING TODAY THAT PENNSYLVANIA'S POST-LEMON
ATTEMPT TO AVOID THE ESTABLISHMENT CLAUSE'S PROHIBITION AGAINST
GOVERNMENT ENTANGLEMENTS WITH RELIGION HAS FAILED TO SATISFY THE
PARALLEL BAR AGAINST LAWS HAVING A PRIMARY EFFECT THAT ADVANCES
RELIGION, WE ARE NOT UNAWARE THAT APPELLANTS AND THOSE WHO HAVE
ENDEAVORED TO FORMULATE SYSTEMS OF STATE AID TO NONPUBLIC EDUCATION MAY
FEEL THAT THE DECISIONS OF THIS COURT HAVE, INDEED, PRESENTED THEM WITH
THE "INSOLUBLE PARADOX" TO WHICH MR. JUSTICE WHITE REFERRED IN HIS
SEPARATE OPINION IN LEMON.  403 U. S., AT 668.  /12/  BUT IF NOVEL
FORMS OF AID HAVE NOT READILY BEEN SUSTAINED BY THIS COURT, THE "FAULT"
LIES NOT WITH THE DOCTRINES WHICH ARE SAID TO CREATE A PARADOX BUT
RATHER WITH THE ESTABLISHMENT CLAUSE ITSELF:  "CONGRESS" AND THE STATES
BY VIRTUE OF THE FOURTEENTH AMENDMENT "SHALL MAKE NO LAW RESPECTING AN
ESTABLISHMENT OF RELIGION."  WITH THAT JUDGMENT WE ARE NOT FREE TO
TAMPER, AND WHILE THERE IS "ROOM FOR PLAY IN THE JOINTS,"  WALZ V. TAX
COMM'N, SUPRA, AT 669, THE AMENDMENT'S PROSCRIPTION CLEARLY FORECLOSES
PENNSYLVANIA'S TUITION REIMBURSEMENT PROGRAM. 

      AFFIRMED. 

/1/  NO. 72 - 459, SLOAN V. LEMON, IS AN APPEAL FILED BY THE STATE
TREASURER AND BY 12 INTERVENING PARENTS, TWO OF WHOM ARE THE WATSONS-
THE PARENTS OF A CHILD REGISTERED IN A NONRELIGIOUS, PRIVATE SCHOOL. 
NO. 72 - 620, CROUTER V. LEMON, IS A SEPARATELY DOCKETED APPEAL
INITIATED BY ANOTHER ONE OF THE INTERVENORS. 

/2/  PS. LAWS 1971, ACT 92, PA. STAT. ANN., TIT. 24, ^^ 5701 - 5709
(SUPP. 1973 - 1974) (THE ENTIRE ENACTMENT IS PRINTED IN AN APPENDIX TO
THE DISTRICT COURT'S OPINION, 340 F. SUPP. 1356, 1365 - 1368). 

/3/  ID., ^ 5704. 

/4/  ID., ^ 5702. 

/5/  THESE FINDINGS ARE SIMILAR TO THE ONES WHICH SUPPORTED THE
PENNSYLVANIA TEACHER-SALARY REIMBURSEMENT LAW INVOLVED IN LEMON.  THERE
THE COURT NOTED THAT THE ACT WAS PASSED "IN RESPONSE TO A CRISIS THAT
THE PENNSYLVANIA LEGISLATURE FOUND EXISTED IN THE STATE'S NONPUBLIC
SCHOOLS DUE TO RAPIDLY RISING COSTS."  403 U. S., AT 609.  THE COURT
HELD THAT THE STATE'S INTEREST IN ENHANCING "THE QUALITY OF THE SECULAR
EDUCATION IN ALL SCHOOLS COVERED BY THE COMPULSORY ATTENDANCE LAWS" WAS
CLEARLY LEGITIMATE AND "MUST THEREFORE BE ACCORDED APPROPRIATE
DEFERENCE."  ID., AT 613. 

/6/  SINCE THE GRANTS IN THIS CASE ARE NOT LIMITED TO REIMBURSING
ONLY A PERCENTAGE OF THE TUITION BILL, THE ARGUMENT COULD NOT BE MADE
HERE THAT THE LAW CONTAINS ANY "STATISTICAL GUARANTEE OF NEUTRALITY,"
NYQUIST, ANTE, AT 787. 

/7/  BRIEF FOR APPELLANTS DIAZ ET AL. 23 - 24.  IT WAS ALSO ALLEGED,
AS A GROUND OF DISTINCTION BETWEEN THE PENNSYLVANIA AND NEW YORK
TUITION REIMBURSEMENT GRANTS, THAT THERE WAS LESS LIKELIHOOD OF
POLITICAL DIVISIVENESS UNDER THE PENNSYLVANIA SCHEME BECAUSE IT IS
FINANCED OUT OF A SELF-PERPETUATING FUND DERIVED FROM THE STATE
CIGARETTE TAX.  THUS, IT IS CONTENDED THAT NO ANNUAL APPROPRIATIONS ARE
REQUIRED AND THERE WILL BE LESS LIKELIHOOD OF DIVISIVE POLITICAL
PRESSURE FOR INCREASED GRANTS AND EXPANDED AID.  WE ADDRESSED THE
PROBLEM OF POTENTIAL POLITICAL DIVISIVENESS IN PART III OF OUR OPINION
IN NYQUIST, ANTE, AT 794 - 798.  AT MOST, THE DIFFERENCE HERE IS ONE IN
DEGREE AND ONE NOT LIKELY TO DIMINISH PERCEPTIBLY OVER THE LONG-TERM
THE INEVITABLE DEMANDS FOR INCREASED AND EXPANDED AID. 

/8/  APPELLANTS HAVE ALSO SOUGHT TO DISTINGUISH NYQUIST ON THE
GROUND THAT PENNSYLVANIA'S LEGISLATION IS MORE CAREFULLY DRAFTED TO
AVOID EXCESSIVE ADMINISTRATIVE ENTANGLEMENTS; THE PROGRAM IS
ADMINISTERED BY AN INDEPENDENT AUTHORITY RATHER THAN BY THE
COMMISSIONER OF EDUCATION, AND ITS FUNDS ARE NOT DERIVED FROM THE
GENERAL REVENUES AVAILABLE FOR EDUCATION BUT FROM A SEPARATE FUND. 
BRIEF FOR APPELLANT DIAZ ET AL. 24.  SINCE PENNSYLVANIA'S LAW FALLS
UNDER THE SECOND ASPECT OF OUR TEST BECAUSE ITS EFFECT, INEVITABLY, IS
TO ADVANCE RELIGION, WE NEED NOT ADDRESS THIS CLAIMED DISTINCTION. 

/9/  ORDER OF DISTRICT COURT, DATED JUNE 20, 1972, SCHEDULING ORAL
ARGUMENTS ON PLAINTIFFS' SUMMARY JUDGMENT MOTION AND OUTLINING THE
QUESTIONS TO BE ARGUED AT THAT TIME, REPRINTED IN APP. 84A - 85A. 

/10/  "SECTION 10.  SEVERABILITY.--IF A PART OF THIS ACT IS INVALID,
ALL VALID PARTS THAT ARE SEVERABLE FROM THE INVALID PART REMAIN IN
EFFECT.  IF A PART OF THIS ACT IS INVALID, IN ONE OR MORE OF ITS
APPLICATIONS, THE PART REMAINS IN EFFECT IN ALL VALID APPLICATIONS THAT
ARE SEVERABLE FROM THE INVALID APPLICATIONS."  P. LAWS 1971, ACT 92. 
(EMPHASIS SUPPLIED.) 

/11/  FINAL ORDER OF DISTRICT COURT, DATED JULY 21, 1972,
PERMANENTLY ENJOINING ENFORCEMENT OF THE ACT, REPRINTED IN APP. 87A. 

/12/  SEE ALSO LEMON V. KURTZMAN, 403 U. S., AT 640 (DOUGLAS, J.,
CONCURRING); LEMON V. KURTZMAN 411 U. S. 192, 203 N. 3 (1973). 

ISTAEL PACKEL, ATTORNEY GENERAL OF PENNSYLVANIA, ARGUED THE CAUSE FOR
APPELLANT SLOAN IN NO. 72 - 459.  WITH HIM ON THE BRIEF WERE PETER W.
BROWN AND J. JUSTIN BLEWITT, JR., DEPUTY ATTORNEYS GENERAL.  WILLIAM
BENTLEY BALL ARGUED THE CAUSE FOR APPELLANTS DIAZ ET AL. IN NO. 72 -
459.  WITH HIM ON THE BRIEFS WERE JOSEPH G. SKELLY, JAMES E. GALLAGHER,
JR., C. CLARK HODGSON, JR., AND WILLIAM D. VALENTE.  HENRY T. REATH
ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT IN NO. 72 - 620. 

THEODORE R. MANN ARGUED THE CAUSE FOR APPELLEES IN BOTH CASES.  WITH
HIM ON THE BRIEF WAS LEO PFEFFER. 
..END :









ALEXANDER V. VIRGINIA 413 U.S. 836 


       CERTIORARI TO THE SUPREME COURT OF VIRGINIA 

 NO. 71 - 1315.  ARGUED OCTOBER 19, 1972--DECIDED JUNE 25, 1973;

  212 V. 554, 186 S.E.2D 43, VACATED AND REMANDED. 


    THE JUDGMENT OF THE SUPREME COURT OF VIRGINIA, AFFIRMING THE

  TRIAL COURT'S ORDER ADJUDGING CERTAIN MAGAZINES OBSCENE AND

  RESTRAINING THEIR SALE, IS VACATED AND REMANDED FOR FURTHER

  PROCEEDINGS CONSISTENT WITH MILLER V. CALIFORNIA, ANTE, P. 15;

  PARIS ADULT THEATRE I V. SLATON, ANTE, P. 49; AND HELLER V. NEW

  YORK, ANTE, P. 483.  TRIAL BY JURY IS NOT CONSTITUTIONALLY

  REQUIRED IN THIS CIVIL ACTION PURSUANT TO VA. CODE ANN. ^ 18.1 -

  236.3. 

PER CURIAM. 

THE JUDGMENT OF THE SUPREME COURT OF VIRGINIA IS VACATED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH MILLER V.
CALIFORNIA, ANTE, AT 23 - 25, PARIS ADULT THEATRE I V. SLATON, ANTE, AT
58 N. 7, AND HELLER V. NEW YORK, ANTE, P. 483.  SEE UNITED STATES V. 12
200 - FT. REELS OF FILM, ANTE, AT 129 - 130 AND N. 7.  A TRIAL BY JURY
IS NOT CONSTITUTIONALLY REQUIRED IN THIS STATE CIVIL PROCEEDING
PURSUANT TO ^ 18.1 - 236.3 OF THE CODE OF VIRGINIA, 1950, AS AMENDED. 
SEE MELANCON V. MC KEITHEN, 345 F. SUPP. 1025, 1927, 1035 - 1045, 1048
(ED LA.), AFF'D SUB NOM.  MAYES V. ELLIS, 409 U. S. 943 (1972), AND
HILL V. MC KEITHEN, 409 U. S. 943 (1972).  CF. KINGSLEY BOOKS, INC. V.
BROWN, 354 U. S. 436, 443 - 444 (1957). 

             VACATED AND REMANDED. 

MR. JUSTICE DOUGLAS WOULD REVERSE THE JUDGMENT OF THE SUPREME COURT
OF VIRGINIA.  SEE MILLER V. CALIFORNIA, ANTE, P. 37 (DOUGLAS, J.,
DISSENTING). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

I WOULD REVERSE THE JUDGMENT OF THE SUPREME COURT OF VIRGINIA AND
REMAND THE CASE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH MY
DISSENTING OPINION IN PARIS ADULT THEATRE I V. SLATON, ANTE, P. 73. 
SEE MY DISSENT IN MILLER V. CALIFORNIA, ANTE, P. 47. 

STANLEY M. DIETZ ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

JAMES E. KULP, ASSISTANT ATTORNEY GENERAL OF VIRGINIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE ANDREW P. MILLER,
ATTORNEY GENERAL AND ROBERT E. SHEPHERD, JR., ASSISTANT ATTORNEY
GENERAL.  /1/ 

/1/  RALPH J. SCHWARZ, JR., MEL S. FRIEDMAN, AND JOEL HIRSCHHORN
FILED A BRIEF FOR THE FIRST AMENDMENT LAWYERS' ASSOCIATION AS AMICUS
CURIAE URGING REVERSAL. 
..END :










FAUSNER V. COMMISSIONER 413 U.S. 838 


       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT 

     NO. 72 - 1396.  DECIDED JUNE 25, 1973; CERTIORARI GRANTED: 472
F.2D 561, AFFIRMED. 


    AIRLINE PILOT TAXPAYER IS NOT ENTITLED UNDER ^ 262 OF THE

  INTERNAL REVENUE CODE TO AN EXCLUSION FROM "PERSONAL" EXPENSES

  FOR THE COSTS OF COMMUTING BY CAR FROM HIS HOME TO HIS PLACE OF

  EMPLOYMENT BECAUSE BY HAPPENSTANCE HE MUST CARRY INCIDENTALS OF

  HIS OCCUPATION WITH HIM. 

PER CURIAM. 

PETITIONER DONALD FAUSNER, A COMMERCIAL AIRLINES PILOT, WHO
REGULARLY TRAVELED BY PRIVATE AUTOMOBILE FROM HIS HOME TO HIS PLACE OF
EMPLOYMENT AND BACK AGAIN, A ROUND TRIP OF APPROXIMATELY 84 MILES,
SOUGHT TO DEDUCT THE ENTIRE COST OF COMMUTING UNDER ^ 162 (A) OF THE
INTERNAL REVENUE CODE OF 1954, ON THE THEORY THAT HIS AUTOMOBILE
EXPENSES WERE INCURRED TO TRANSPORT HIS FLIGHT BAG AND OVERNIGHT BAG
AND THUS CONSTITUTED ORDINARY AND NECESSARY BUSINESS EXPENSES.  IT IS
NOT DISPUTED THAT PETITIONER WOULD HAVE COMMUTED BY PRIVATE AUTOMOBILE
REGARDLESS OF WHETHER HE HAD TO TRANSPORT HIS TWO BAGS.  THE TAX COURT
DISALLOWED THE DEDUCTION IN TOTO.  ON APPEAL, THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT AFFIRMED THE DECISION OF THE TAX COURT.  472 F. 2D
561. 

THIS ISSUE HAS BEEN ADDRESSED BY TWO OTHER CIRCUITS, SULLIVAN V.
COMMISSIONER, 368 F. 2D 1007 (CA2 1966), AND TYNE V. COMMISSIONER, 385
F. 2D 40 (CA7 1967).  BOTH OF THESE CIRCUITS CONCLUDED THAT SOME
ALLOCABLE PORTION OF THE EXPENSES INCURRED COULD BE DEDUCTED AS AN
ORDINARY AND NECESSARY BUSINESS EXPENSE.  THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT REFUSED TO FOLLOW THOSE CASES ON THE GROUND THAT THERE
WAS NO RATIONAL BASIS FOR ANY ALLOCATION BETWEEN THE NONDEDUCTIBLE
BUSINESS COMPONENT OF THE TOTAL EXPENSE. 

AS THE COURT OF APPEALS INDICATED, CONGRESS HAS DETERMINED THAT ALL
TAXPAYERS SHALL BEAR THE EXPENSE OF COMMUTING TO AND FROM WORK WITHOUT
RECEIVING A DEDUCTION FOR THAT EXPENSE.  WE CANNOT READ ^ 262 OF THE
INTERNAL REVENUE CODE /1/  AS EXCLUDING SUCH EXPENSE FROM "PERSONAL"
EXPENSES BECAUSE BY HAPPENSTANCE THE TAXPAYER MUST CARRY INCIDENTALS OF
HIS OCCUPATION WITH HIM.  ADDITIONAL EXPENSES MAY AT TIMES BE INCURRED
FOR TRANSPORTING JOB-REQUIRED TOOLS AND MATERIAL TO AND FROM WORK.  /2/
THEN AN ALLOCATION OF COSTS BETWEEN "PERSONAL" AND "BUSINESS" EXPENSES
/3/  MAY BE FEASIBLE.  BUT NO SUCH ALLOCATION CAN BE MADE HERE. 

WE GRANT THE PETITION FOR CERTIORARI AND AFFIRM THE JUDGMENT BELOW. 

MR. JUSTICE BLACKMUN WOULD GRANT THE PETITION FOR A WRIT OF
CERTIORARI AND SET THE CASE FOR ORAL ARGUMENT. 

/1/  "EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS CHAPTER, NO
DEDUCTION SHALL BE ALLOWED FOR PERSONAL, LIVING, OR FAMILY EXPENSES." 
26 U.S.C. ^ 262. 

/2/  SEE REV. RUL. 63 - 100, 1963 - 1 CUM. BULL.  34. 

/3/  SEC. 162 (A) OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. ^
162 (A). 
..END :






GILLIAN V. MORGAN 413 U.S. 1 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT 

     NO. 71 - 1553.  ARGUED MARCH 19, 1973--DECIDED JUNE 21, 1973;
456 F.2D 608, REVERSED. 


    RESPONDENTS FILED THIS ACTION ON BEHALF OF THEMSELVES AND ALL

  OTHER STUDENTS AT A STATE UNIVERSITY, CLAIMING THAT DURING A

  PERIOD OF CIVIL DISORDER ON THE CAMPUS IN MAY 1970, THE NATIONAL

  GUARD, CALLED BY THE GOVERNOR TO PRESERVE ORDER, VIOLATED

  STUDENTS' RIGHTS OF SPEECH AND ASSEMBLY AND CAUSED INJURY AND

  DEATH TO SOME STUDENTS.  THEY SOUGHT INJUNCTIVE RELIEF TO

  RESTRAIN THE GOVERNOR IN FUTURE FROM PREMATURELY ORDERING GUARD

  TROOPS TO DUTY IN CIVIL DISORDERS AND AN INJUNCTION TO RESTRAIN

  GUARD LEADERS FROM FUTURE VIOLATION OF STUDENT'S RIGHTS.  THEY

  ALSO SOUGHT A DECLARATORY JUDGMENT THAT 2923.55 OF THE OHIO

REVISED CODE IS UNCONSTITUTIONAL.  THE DISTRICT COURT DISMISSED

  THE SUIT ON THE GROUND THAT THE COMPLAINT FAILED TO STATE A CLAIM

  UPON WHICH RELIEF COULD BE GRANTED.  THE COURT OF APPEALS

  AFFIRMED THE DISMISSAL WITH RESPECT TO BOTH INJUNCTIVE RELIEF

  AGAINST THE GOVERNOR'S "PREMATURE" EMPLOYMENT OF THE GUARD AND

  THE VALIDITY OF THE STATE STATUTE, BUT HELD THAT THE COMPLAINT

  STATED A CAUSE OF ACTION WITH RESPECT TO ONE ISSUE, WHICH WAS

  REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO RESOLVE THE

  QUESTION WHETHER THERE WAS AND IS "A PATTERN OF TRAINING,

  WEAPONRY AND ORDERS IN THE OHIO NATIONAL GUARD WHICH . . .

  REQUIRE . . . THE USE OF FATAL FORCE IN SUPPRESSING CIVILIAN

DISORDERS WHEN THE TOTAL CIRCUMSTANCES ARE SUCH THAT NONLETHAL

  FORCE WOULD SUFFICE TO RESTORE ORDER . . . ." 

  HC2'(ORIGINAL DOCUMENT PAGE 2)'

  SINCE THE COMPLAINT WAS FILED, THE NAMED RESPONDENTS HAVE LEFT
THE UNIVERSITY; THE OFFICIALS

  ORIGINALLY NAMED AS DEFENDANTS NO LONGER HOLD OFFICES IN WHICH
THEY CAN EXERCISE AUTHORITY

  OVER THE GUARD; THE GUARD HAS ADOPTED NEW AND SUBSTANTIALLY
DIFFERENT "USE OF

  FORCE" RULES; AND THE CIVIL DISORDER TRAINING OF GUARD RECRUITS
HAS BEEN REVISED.  HELD: 

     1.  THE CASE IS RESOLVED ON THE BASIS OF WHETHER THE CLAIMS

  ALLEGED IN THE COMPLAINT, AS NARROWED BY THE COURT OF APPEALS'

  REMAND, ARE JUSTICIABLE, RATHER THAN ON POSSIBLE MOOTNESS.  PP. 4

  - 5. 

     2.  NO JUSTICIABLE CONTROVERSY IS PRESENTED IN THIS CASE, AS

  THE RELIEF SOUGHT BY RESPONDENTS, REQUIRING INITIAL JUDICIAL

  REVIEW AND CONTINUING JUDICIAL SURVEILLANCE OVER THE TRAINING,

  WEAPONRY, AND STANDING ORDERS OF THE NATIONAL GUARD, EMBRACES

  CRITICAL AREAS OF RESPONSIBILITY VESTED BY THE CONSTITUTION, SEE

  ART. 1, ^ 8, CL. 16, IN THE LEGISLATIVE AND EXECUTIVE BRANCHES OF

THE GOVERNMENT.  PP. 5 - 12. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BLACKMUN, J., FILED A
CONCURRING OPINION, IN WHICH POWELL, J., JOINED, POST, P. 12.  DOUGLAS
BRENNAN, STEWART, AND MARSHALL, JJ., FILED A DISSENTING STATEMENT,
POST, P. 12. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

[[HC3'(ORIGINAL DOCUMENT PAGE 3)' 

RESPONDENTS, ALLEGING THAT THEY WERE FULL-TIME STUDENTS AND OFFICERS
IN THE STUDENT GOVERNMENT AT KENT STATE UNIVERSITY IN OHIO, FILED THIS
ACTION /1/  IN THE DISTRICT COURT ON BEHALF OF THEMSELVES AND ALL OTHER
STUDENTS ON OCTOBER 15, 1970.  THE ESSENCE OF THE COMPLAINT IS THAT,
DURING A PERIOD OF CIVIL DISORDER ON AND AROUND THE UNIVERSITY CAMPUS
IN MAY 1970, THE NATIONAL GUARD, CALLED BY THE GOVERNOR OF OHIO TO
PRESERVE CIVIL ORDER AND PROTECT PUBLIC PROPERTY, VIOLATED STUDENTS'
RIGHTS OF SPEECH AND ASSEMBLY AND CAUSED INJURY TO A NUMBER OF STUDENTS
AND DEATH TO SEVERAL, AND THAT THE ACTIONS OF THE NATIONAL GUARD WERE
WITHOUT LEGAL JUSTIFICATION.  THEY SOUGHT INJUNCTIVE RELIEF AGAINST THE
GOVERNOR TO RESTRAIN HIM IN THE FUTURE FROM PREMATURELY ORDERING
NATIONAL GUARD TROOPS TO DUTY IN CIVIL DISORDERS AND AN INJUNCTION TO
RESTRAIN LEADERS OF THE NATIONAL GUARD FROM FUTURE VIOLATION OF THE
STUDENTS CONSTITUTIONAL RIGHTS.  THEY ALSO SOUGHT A DECLARATORY
JUDGMENT THAT ^ 2923.55 OF THE OHIO REVISED CODE /2/  IS
UNCONSTITUTIONAL.  THE DISTRICT COURT HELD THAT THE COMPLAINT FAILED TO
STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED AND DISMISSED THE
SUIT.  THE COURT OF APPEALS /3/  UNANIMOUSLY AFFIRMED THE DISTRICT
COURT'S DISMISSAL WITH RESPECT TO INJUNCTIVE RELIEF AGAINST THE
GOVERNOR'S "PREMATURE" EMPLOYMENT OF THE GUARD ON FUTURE OCCASIONS AND
WITH RESPECT TO THE VALIDITY OF THE STATE STATUTE.  /4/ 

[[HC4'(ORIGINAL DOCUMENT PAGE 4)'  AT THE SAME TIME, HOWEVER, THE
COURT OF APPEALS, WITH ONE JUDGE DISSENTING, HELD THAT THE COMPLAINT
STATED A CAUSE OF ACTION WITH RESPECT TO ONE ISSUE WHICH WAS REMANDED
TO THE DISTRICT COURT WITH DIRECTIONS TO RESOLVE THE FOLLOWING
QUESTION: 

"WAS THERE AND IS THERE A PATTERN OF TRAINING WEAPONRY AND ORDERS IN
THE OHIO NATIONAL GUARD WHICH SINGLY OR TOGETHER REQUIRE OR MAKE
INEVITABLE THE USE OF FATAL FORCE IN SUPPRESSING CIVILIAN DISORDERS
WHEN THE TOTAL CIRCUMSTANCES AT THE CRITICAL TIME ARE SUCH THAT
NONLETHAL FORCE WOULD SUFFICE TO RESTORE ORDER AND THE USE OF LETHAL
FORCE IS NOT REASONABLY NECESSARY?"  /5/ WE GRANTED CERTIORARI TO
REVIEW THE ACTION OF THE COURT OF APPEALS.  /6/

        I 

WE NOTE AT THE OUTSET THAT SINCE THE COMPLAINT WAS FILED IN THE
DISTRICT COURT IN 1970, THERE HAVE BEEN A NUMBER OF CHANGES IN THE
FACTUAL SITUATION.  AT THE ORAL ARGUMENT, WE WERE INFORMED THAT NONE OF
THE NAMED RESPONDENTS IS STILL ENROLLED IN THE UNIVERSITY.  /7/
LIKEWISE, THE OFFICIALS ORIGINALLY NAMED AS PARTY DEFENDANTS NO LONGER
HOLD OFFICES IN WHICH THEY CAN EXERCISE ANY AUTHORITY OVER THE STATE'S
NATIONAL GUARD, /8/  ALTHOUGH THE SUIT IS AGAINST SUCH PARTIES AND
THEIR SUCCESSORS IN OFFICE.  IN ADDITION, BOTH THE PETITIONERS, AND THE
SOLICITOR GENERAL APPEARING AS AMICUS CURIAE, HAVE INFORMED US THAT
SINCE 1970 THE OHIO NATIONAL GUARD HAS ADOPTED NEW AND SUBSTANTIALLY
DIFFERENT "USE OF FORCE" RULES DIFFERING FROM THOSE IN EFFECT WHEN THE
COMPLAINT WAS FILED; WE ARE ALSO INFORMED THAT THE INITIAL TRAINING OF
NATIONAL GUARD RECRUITS RELATING TO CIVIL DISORDER CONTROL /9/  HAS
BEEN REVISED. 

[[HC5'(ORIGINAL DOCUMENT PAGE 5)' 

RESPONDENTS ASSERT, NEVERTHELESS, THAT THESE CHANGES IN THE
SITUATION DO NOT AFFECT THEIR RIGHT TO A HEARING ON THEIR ENTITLEMENT
TO INJUNCTIVE AND SUPERVISORY RELIEF.  SOME BASIS, THEREFORE, EXISTS
FOR A CONCLUSION THAT THE CASE IS NOW MOOT; HOWEVER, ON THE RECORD
BEFORE US WE ARE NOT PREPARED TO RESOLVE THE CASE ON THAT BASIS AND
THEREFORE TURN TO THE IMPORTANT QUESTION WHETHER THE CLAIMS ALLEGED IN
THE COMPLAINT, AS NARROWED BY THE COURT OF APPEALS' REMAND ARE
JUSTICIABLE. 

        II 

WE CAN TREAT THE QUESTION OF JUSTICIABILITY ON THE BASIS OF AN
ASSUMPTION THAT RESPONDENTS' CLAIMS, WITHIN THE FRAMEWORK OF THE REMAND
ORDER, ARE TRUE AND COULD BE ESTABLISHED BY EVIDENCE.  ON THAT
ASSUMPTION, WE ADDRESS THE QUESTION WHETHER THERE IS ANY RELIEF A
DISTRICT COURT COULD APPROPRIATELY FASHION. 

IT IS IMPORTANT TO NOTE AT THE OUTSET THAT THIS IS NOT A CASE IN
WHICH DAMAGES ARE SOUGHT FOR INJURIES SUSTAINED DURING THE TRAGIC
OCCURRENCE AT KENT STATE.  NOR IS IT AN ACTION SEEKING A RESTRAINING
ORDER AGAINST SOME SPECIFIED AND IMMINENTLY THREATENED UNLAWFUL
ACTION.  RATHER, IT IS A BROAD CALL ON JUDICIAL POWER TO ASSUME
CONTINUING REGULATORY JURISDICTION OVER THE ACTIVITIES OF THE OHIO
NATIONAL GUARD.  THIS FAR-REACHING DEMAND FOR RELIEF PRESENTS IMPORTANT
QUESTIONS OF JUSTICIABILITY. 

RESPONDENTS CONTINUE TO SEEK FOR THE BENEFIT OF ALL KENT STUDENTS A
JUDICIAL EVALUATION OF THE APPROPRIATENESS OF THE "TRAINING, WEAPONRY
AND ORDERS" OF THE OHIO NATIONAL GUARD. 

[[HC6'(ORIGINAL DOCUMENT PAGE 6)'  THEY FURTHER DEMAND, AND THE
COURT OF APPEALS REMAND WOULD REQURE, THAT THE DISTRICT COURT ESTABLISH
STANDARDS FOR THE TRAINING, KIND OF WEAPONS AND SCOPE AND KIND OF
ORDERS TO CONTROL THE ACTIONS OF THE NATIONAL GUARD.  RESPONDENTS
CONTEND THAT THEREAFTER THE DISTRICT COURT MUST ASSUME AND EXERCISE A
CONTINUING JUDICIAL SURVEILLANCE OVER THE GUARD TO ASSURE COMPLIANCE
WITH WHATEVER TRAINING AND OPERATIONS PROCEDURES MAY BE APPROVED BY
THAT COURT.  RESPONDENTS PRESS FOR A REMEDIAL DECREE OF THIS SCOPE,
EVEN ASSUMING ACCEPTABLE AFTER AN EVIDENTIARY HEARING BY THE COURT. 
CONTINUED JUDICIAL SURVEILLANCE TO ASSURE COMPLIANCE WITH THE CHANGED
STANDARDS IS WHAT RESPONDENTS DEMAND. 

IN RELYING ON THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
RESPONDENTS SEEM TO OVERLOOK THE EXPLICIT COMMAND OF ART. 1, ^ 8, CL.
16, WHICH VESTS IN CONGRESS THE POWER: 

     "TO PROVIDE FOR ORGANIZING, ARMING, AND DISCIPLINING THE

  MILITIA, AND FOR GOVERNING SUCH PART OF THEM AS MAY BE EMPLOYED

  IN THE SERVICE OF THE UNITED STATES, RESERVING TO THE STATES

  RESPECTIVELY, THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY

  OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY

  CONGRESS."  (EMPHASIS ADDED.) 

THE MAJORITY OPINION IN THE COURT OF APPEALS DOES NOT MENTION THIS VERY
RELEVANT PROVISION OF THE CONSTITUTION.  YET THAT PROVISION IS EXPLICIT
THAT THE CONGRESS SHALL HAVE THE RESPONSIBILITY FOR ORGANIZING, ARMING,
AND DISCIPLINING THE MILITIA (NOW THE NATIONAL GUARD) WITH CERTAIN
RESPONSIBILITIES BEING RESERVED TO THE RESPECTIVE STATES.  CONGRESS HAS
ENACTED APPROPRIATE LEGISLATION PURSUANT TO ART. 1, SEC. 8, CL. 16,
/10/  AND HAS ALSO AUTHORIZED THE PRESIDENT--AS THE COMMANDER IN CHIEF
OF THE ARMED FORCES--TO PRESCRIBE REGULATIONS GOVERNING ORGANIZATION
AND DISCIPLINE OF THE NATIONAL GUARD.  /11/ 

[[HC7'(ORIGINAL DOCUMENT PAGE 7)'  THE GUARD IS AN ESSENTIAL RESERVE
COMPONENT OF THE ARMED FORCES OF THE UNITED STATES, AVAILABLE WITH
REGULAR FORCES IN TIME OF WAR.  THE GUARD ALSO MAY BE FEDERALIZED IN
ADDITION TO ITS ROLE UNDER STATE GOVERNMENTS, TO ASSIST IN CONTROLLING
CIVIL DISORDERS.  /12/  THE RELIEF SOUGHT BY RESPONDENTS, REQUIRING
INITIAL JUDICIAL REVIEW AND CONTINUING SURVEILLANCE BY A FEDERAL COURT
OVER THE TRAINING, WEAPONRY, AND ORDERS OF THE GUARD, WOULD THEREFORE
EMBRACE CRITICAL AREAS OF RESPONSIBILITY VESTED BY THE CONSTITUTION IN
THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT.  /13/ 

THE COURT OF APPEALS INVITED THE DISTRICT COURT ON REMAND TO SURVEY
CERTAIN MATERIALS NOT THEN IN THE RECORD OF THE CASE: 

"(FOR EXAMPLE:  PREVENTION AND CONTROL OF MOBS AND RIOTS, FEDERAL
BUREAU OF INVESTIGATION, U.S. DEPT. OF JUSTICE, J. EDGAR HOOVER (1967)
. . .; C.F.R. ^ 501 (1971), 'EMPLOYMENT OF TROOPS IN AID OF CIVIL
AUTHORITIES'; INSTRUCTIONS FOR MEMBERS OF THE FORCE AS MASS
DEMONSTRATIONS, POLICE DEPARTMENT, CITY OF NEW YORK (NO DATE); REPORT
OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS (1968)."  456
F.2D, AT 614.  THIS WOULD PLAINLY AND EXPLICITLY REQUIRE A JUDICIAL
EVALUATION OF A WIDE RANGE OF POSSIBLY DISSIMILAR PROCEDURES AND
POLICIES APPROVED BY DIFFERENT LAW ENFORCEMENT AGENCIES OR OTHER
AUTHORITIES; AND THE EXAMPLES CITED MAY REPRESENT ONLY A FRAGMENT OF
THE ACCUMULATED DATA AND EXPERIENCE IN THE VARIOUS STATES, IN THE ARMED
SERVICES, AND IN OTHER CONCERNED AGENCIES OF THE FEDERAL GOVERNMENT. 

[[HC8'(ORIGINAL DOCUMENT PAGE 8)'  TRAINED PROFESSIONALS, SUBJECT TO
THE DAY-TO-DAY CONTROL OF THE RESPONSIBLE CIVILIAN AUTHORITIES,
NECESSARILY MUST MAKE COMPARATIVE JUDGMENTS ON THE MERITS AS TO
EVOLVING METHODS OF TRAINING, EQUIPPING, AND CONTROLLING MILITARY
FORCES WITH RESPECT TO THEIR DUTIES UNDER THE CONSTITUTION.  IT WOULD
BE INAPPROPRIATE FOR A DISTRICT JUDGE TO UNDERTAKE THIS RESPONSIBILITY
IN THE UNLIKELY EVENT THAT HE POSSESSED REQUISITE TECHNICAL COMPETENCE
TO DO SO. 

JUDGE CELEBREEZE, IN DISSENT, CORRECTLY READ BAKER V. CARR, 369 U.S.
186 (1962), WHEN HE SAID: 

     "I BELIEVE THAT THE CONGRESSIONAL AND EXECUTIVE AUTHORITY TO

  PRESCRIBE AND REGULATE THE TRAINING AND WEAPONRY OF THE NATIONAL

GUARD, AS SET FORTH ABOVE, CLEARLY PRECLUDES ANY FORM OF JUDICIAL

  REGULATION OF THE SAME MATTERS.  I CAN ENVISION NO FORM OF

  JUDICIAL RELIEF WHICH, IF DIRECTED AT THE TRAINING AND WEAPONRY

  OF THE NATIONAL GUARD, WOULD NOT INVOLVE A SERIOUS CONFLICT WITH

  A "'COORDINATE POLITICAL DEPARTMENT; . . . A LACK OF JUDICIALLY

  DISCOVERABLE AND MANAGEABLE STANDARDS FOR RESOLVING (THE

  QUESTION); . . . THE IMPOSSIBILITY OF DECIDING WITHOUT AN INITIAL

  POLICY DETERMINATION OF A KIND CLEARLY FOR NONJUDICIAL

  DISCRETION; . . . THE IMPOSSIBILITY OF A COURT'S UNDERTAKING

  INDEPENDENT RESOLUTION WITHOUT EXPRESSING LACK OF THE RESPECT DUE

COORDINATE BRANCHES OF GOVERNMENT; . . . AN UNUSUAL NEED FOR

  UNQUESTIONING ADHERENCE TO A POLITICAL DECISION ALREADY MADE;

  (AND) THE POTENTIALITY OF EMBARRASSMENT FROM MULTIFARIOUS

  PRONOUNCEMENTS BY VARIOUS DEPARTMENTS ON ONE QUESTION.' 

[[HC9'(ORIGINAL DOCUMENT PAGE 9)'

  BAKER V. CARR, SUPRA, 369 U.S. AT 217 . . . . "ANY SUCH RELIEF,
WHETHER IT PRESCRIBED

  STANDARDS OF TRAINING AND WEAPONRY OR SIMPLY ORDERED COMPLIANCE
WITH THE STANDARDS SET BY

  CONGRESS AND/OR THE EXECUTIVE, WOULD NECESSARILY DRAW THE COURTS
INTO A NONJUSTICIABLE

  POLITICAL QUESTION, OVER WHICH WE HAVE NO JURISDICTION."  456
F.2D, AT 619 (EMPHASIS ADDED). 

IN FLAST V. COHEN, 392 U.S. 83 (1968), THIS COURT NOTED THAT: 

  "JUSTICIABILITY IS ITSELF A CONCEPT OF UNCERTAIN MEANING AND

  SCOPE.  ITS REACH IS ILLUSTRATED BY THE VARIOUS GROUNDS UPON

  WHICH QUESTIONS SOUGHT TO BE ADJUDICATED IN FEDERAL COURTS HAVE

  BEEN HELD NOT TO BE JUSTICIABLE.  THUS, NO JUSTICIABLE

  CONTROVERSY IS PRESENTED WHEN THE PARTIES SEEK ADJUDICATION OF

  ONLY A POLITICAL QUESTION, WHEN THE PARTIES ARE ASKING FOR AN

  ADVISORY OPINION, WHEN THE QUESTION SOUGHT TO BE ADJUDICATED HAS

  BEEN MOOTED BY SUBSEQUENT DEVELOPMENTS, AND WHEN THERE IS NO

  STANDING TO MAINTAIN THE ACTION.  YET IT REMAINS TRUE THAT

  '(JUSTICIABILITY IS . . . NOT A LEGAL CONCEPT WITH A FIXED

  CONTENT OR SUSCEPTIBLE OF SCIENTIFIC VERIFICATION.  ITS

  UTILIZATION IS THE RESULTANT OF MANY SUBTLE PRESSURES . . . .' 

POE V. ULLMAN, 367 U.S. 497, 508 (1961)."  /14/ 

IN DETERMINING JUSTICIABILITY, THE ANALYSIS IN FLAST THUS SUGGESTS
THAT THERE IS NO JUSTICIABLE CONTROVERSY (A) "WHEN THE PARTIES ARE
ASKING FOR AN ADVISORY OPINION,"  (B) "WHEN THE QUESTION SOUGHT TO BE
ADJUDICATED HAS BEEN MOOTED BY SUBSEQUENT DEVELOPMENTS," AND (C) "WHEN
THERE IS NO STANDING TO MAINTAIN THE ACTION." 

[[HC10'(ORIGINAL DOCUMENT PAGE 10)'  AS WE NOTED IN POE V. ULLMAN,
367 U.S. 497 (1961), AND REPEATED IN FLAST, "(JUSTICIABILITY IS . . .
NOT A LEGAL CONCEPT WITH A FIXED CONTENT OR SUSCEPTIBLE OF SCIENTIFIC
VERTIFICATION.  ITS UTILIZATION IS THE RESULTANT OF MANY SUBTLE
PRESSURES . . . ."  367 U.S., AT 508. 

IN TESTING THIS CASE BY THESE STANDARDS DRAWN SPECIFICALLY FROM FLAST,
THERE ARE SERIOUS DEFICIENCIES WITH RESPECT TO EACH.  THE ADVISORY
NATURE OF THE JUDICIAL DECLARATION SOUGHT IS CLEAR FROM RESPONDENTS'
ARGUMENT AND, INDEED, FROM THE VERY LANGUAGE OF THE COURT'S REMAND. 
ADDED TO THIS IS THAT THE NATURE OF THE QUESTIONS TO BE RESOLVED ON
REMAND ARE SUBJECTS COMMITTED EXPRESSLY TO THE POLITICAL BRANCHES OF
GOVERNMENT.  THESE FACTORS, WHEN COUPLED WITH THE UNCERTAINTIES AS TO
WHETHER A LIVE CONTROVERSY STILL EXISTS AND THE INFIRMITY OF THE
POSTURE OF RESPONDENTS AS TO STANDING, RENDER THE CLAIM AND THE
PROPOSED ISSUES ON REMAND NONJUSTICIABLE. 

IT WOULD BE DIFFICULT TO THINK OF A CLEARER EXAMPLE OF THE TYPE OF
GOVERNMENTAL ACTION THAT WAS INTENDED BY THE CONSTITUTION TO BE LEFT TO
THE POLITICAL BRANCHES, DIRECTLY RESPONSIBLE--AS THE JUDICIAL BRANCH IS
NOT--TO THE ELECTORAL PROCESS.  MOREOVER, IT IS DIFFICULT TO CONCEIVE
OF AN AREA OF GOVERNMENTAL ACTIVITY IN WHICH THE COURTS HAVE LESS
COMPETENCE.  THE COMPLEX, SUBTLE, AND PROFESSIONAL DECISIONS AS TO THE
COMPOSITION, TRAINING, EQUIPPING, AND CONTROL OF A MILITARY FORCE ARE
ESSENTIALLY PROFESSIONAL MILITARY JUDGMENTS, SUBJECT ALWAYS TO CIVILIAN
CONTROL OF THE LEGISLATIVE AND EXECUTIVE BRANCHES.  THE ULTIMATE
RESPONSIBILITY FOR THESE DECISIONS IS APPROPRIATELY VESTED IN BRANCHES
OF THE GOVERNMENT WHICH ARE PERIODICALLY SUBJECT TO ELECTORAL
ACCOUNTABILITY.  IT IS THIS POWER OF OVERSIGHT AND CONTROL OF MILITARY
FORCE BY ELECTED REPRESENTATIVES AND OFFICIALS WHICH UNDERLIES OUR
ENTIRE CONSTITUTIONAL SYSTEM; THE MAJORITY OPINION OF THE COURT OF
APPEALS FAILED TO GIVE APPROPRIATE WEIGHT TO THIS SEPARATION OF
POWERS.  /15/     [[HC11'(ORIGINAL DOCUMENT PAGE 11)' 

VOTING RIGHTS CASES SUCH AS BAKER V. CARR, 369 U.S. 186 (1962),
REYNOLDS V. SIMS, 377 U.S. 533 (1964), AND PRISONER RIGHTS CASES SUCH
AS HAINES V. KERNER, 404 U.S. 519 (1972), ARE CITED BY THE COURT AS
SUPPORTING THE "DIMINISHING) VITALITY OF THE POLITICAL QUESTION
DOCTRINE."  456 F.2D, AT 613.  YET, BECAUSE THIS DOCTRINE HAS BEEN HELD
INAPPLICABLE TO CERTAIN CAREFULLY DELINEATED SITUATIONS, IT IS NO
REASON FOR FEDERAL COURTS TO ASSUME ITS DEMISE.  THE VOTING RIGHTS
CASES, INDEED, HAVE REPRESENTED THE COURT'S EFFORTS TO STRENGTHEN THE
POLITICAL SYSTEM BY ASSURING A HIGHER LEVEL OF FAIRNESS AND
RESPONSIVENESS TO THE POLITICAL PROCESSES, NOT THE ASSUMPTION OF A
CONTINUING JUDICIAL REVIEW OF SUBSTANTIVE POLITICAL JUDGMENTS ENTRUSTED
EXPRESSLY TO THE COORDINATE BRANCHES OF GOVERNMENT. 

IN CONCLUDING THAT NO JUSTICIABLE CONTROVERSY IS PRESENTED, IT
SHOULD BE CLEAR THAT WE NEITHER HOLD NOR IMPLY THAT THE CONDUCT OF THE
NATIONAL GUARD IS ALWAYS BEYOND JUDICIAL REVIEW OR THAT THERE MAY NOT
BE ACCOUNTABILITY IN A JUDICIAL FORUM FOR VIOLATIONS OF LAW OR FOR
SPECIFIC UNLAWFUL CONDUCT BY MILITARY PERSONNEL,  /16/  WHETHER BY WAY
OF DAMAGES OR INJUNCTIVE RELIEF. 

[[HC12'(ORIGINAL DOCUMENT PAGE 12)'  WE HOLD ONLY THAT NO SUCH
QUESTIONS ARE PRESENTED IN THIS CASE.  WE DECLINE TO REQUIRE A UNITED
STATES DISTRICT COURT TO INVOLVE ITSELF SO DIRECTLY AND SO INTIMATELY
IN THE TASK ASSIGNED THAT COURT BY THE COURT OF APPEALS.  ORLOFF V.
WILLOUGHBY, 345 U.S. 83, 93 - 94 (1953). 

              REVERSED. 

/1/  THE COMPLAINT WAS BROUGHT UNDER 42 U.S.C. ^ 1983 WITH
JURISDICTION ASSERTED UNDER 28 U.S.C. ^ 1343 (3). 

/2/  THIS SECTION PROVIDES THAT, UNDER CERTAIN CIRCUMSTANCES, LAW
ENFORCEMENT PERSONNEL WHO ARE ENGAGED IN SUPPRESSING A RIOT ARE
"GUILTLESS" FOR THE CONSEQUENCES OF THE USE OF NECESSARY AND PROPER
FORCE.  OHIO REV. CODE ANN. ^ 2923.55 (SUPP. 1972). 

/3/  THE OPINION OF.THE COURT OF APPEALS IS REPORTED SUB NOM.
MORGAN V. RHODES, 456 F.2D 608 (CA6 1972). 

/4/  RESPONDENTS HAVE NOT SOUGHT CERTIORARI WITH RESPECT TO THOSE
CLAIMS. 

/5/  ID., AT 612. 

/6/  409 U.S. 947 (1972). 

/7/  TR. OF ORAL ARG. 25, 33. 

/8/  MEMORANDUM OF PETITIONERS SUGGESTING A QUESTION OF MOOTNESS 2. 

/9/  IN 1971, THE ARMY BEGAN TO GIVE NATIONAL GUARD RECRUITS 16
HOURS OF ADDITIONAL SPECIAL CIVIL-DISTURBANCE-CONTROL TRAINING
RECOGNIZING THE PECULIAR ROLE OF THE NATIONAL GUARD IN THIS AREA. 

/10/  E. G., 32 U.S.C. ^^ 105, 501 - 507, 701 - 714 (1970 ED. AND
SUPP. 1). 

/11/  32 U.S.C. ^ 110. 

/12/  10 U.S.C. ^ 331 ET SEQ. 

/13/  THE INITIAL AND BASIC TRAINING OF NATIONAL GUARD PERSONNEL IS,
BY REGULATION OF THE DEPARTMENT OF THE ARMY, PURSUANT TO STATUTORY
AUTHORITY, UNDER FEDERAL JURISDICTION.  COMMENCING IN 1971, NATIONAL
GUARD UNITS RECEIVED, AS PART OF THE BASIC TRAINING, 16 HOURS OF
SPECIAL CIVIL-DISTURBANCE-CONTROL TRAINING, IN RECOGNITION OF THE
LIKELIHOOD THAT THE NATIONAL GUARD WOULD BE THE PRIMARY SOURCE OF
MILITARY PERSONNEL CALLED INTO CIVIL DISORDER SITUATIONS.  SEE DEPT. OF
THE ARMY, RESERVE ENLISTMENT PROGRAM OF 1963, CON SUPP. 1 TO AR350 - 1,
APP. XXV, ANX.  F, PAR. 3C (AUG. 31, 1972). 

/14/  392 U.S., AT 95 (FOOTNOTES OMITTED). 

/15/  IN A COLLOQUY WITH THE COURT ON THE SCOPE OF THE RELIEF SOUGHT
UNDER THE REMAND, ONE JUSTICE ASKED: 

"WOULD IT BE A FAIR CHARACTERIZATION OF YOUR POSITION THAT IF THE
CASE GOES BACK TO THE DISTRICT COURT, YOU DO NOT QUARREL WITH THE
SPECIFIC (NATIONAL GUARD) REGULATIONS NOW IN FORCE BUT (A) YOU WANT
THEM MADE PERMANENT AND, (B) YOU WANT A CONTINUING SURVEILLANCE TO SEE
THAT THEY ARE CARRIED OUT; IS THAT A FAIR STATEMENT OF YOUR CASE?" 

MR. GELTNER, COUNSEL FOR RESPONDENTS, ANSWERED: 

"YES, YOUR HONOR, THAT IS A FAIR STATEMENT OF WHAT WE ARE SEEKING AT
THIS POINT, UNDERSTANDING THAT AT THE TIME THE COMPLAINT WAS FILED WE
WERE SEEKING A MORE SPECIFIC CHANGE IN WHAT THEN EXISTED."  TR. OF ORAL
ARG. 56. 

/16/  SEE DUNCAN V. KAHANOMOKU, 327 U.S. 304 (1946); STERLING V.
CONSTANTIN, 287 U.S. 378 (1932).  IN LAIRD V. TATUM, 408 U.S. 1, 15 -
16 (1972), WE SAID:  "(WHEN PRESENTED WITH CLAIMS OF JUDICIALLY
COGNIZABLE INJURY RESULTING FROM MILITARY INTRUSION INTO THE CIVILIAN
ASSERTING SUCH INJURY; THERE IS NOTHING IN OUR NATION'S HISTORY OR IN
THE COURT'S DECIDED CASES, INCLUDING OUR HOLDING TODAY, THAT CAN
PROPERLY BE SEEN AS GIVING ANY INDICATION THAT ACTUAL OR THREATENED
INJURY BY REASON OF UNLAWFUL ACTIVITIES OF THE MILITARY WOULD GO
UNNOTICED OR UNREMEDIED." 

[[DOP 

MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, AND
MR. JUSTICE MARSHALL DISSENT.  FOR MANY OF THE REASONS STATED IN PART I
OF THE COURT'S OPINION, THEY ARE CONVINCED THAT THIS CASE IS NOW MOOT. 
ACCORDINGLY, THEY WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND THE CASE TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS IT AS
MOOT.  SEE UNITED STATES V. MUNSINGWEAR, INC., 340 U.S. 36, 39. 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE POWELL JOINS,
CONCURRING. 

RESPONDENTS BROUGHT THIS ACTION IN 1970 SEEKING BROADRANGING
DECLARATORY AND INJUNCTIVE RELIEF.  BUT THE ISSUE PRESENTLY BEFORE THE
COURT RELATES ONLY TO A PORTION OF THE RELIEF SOUGHT IN 1970.  UNDER
THE COURT OF APPEALS' REMAND ORDER THE DISTRICT COURT WAS LIMITED IN
ITS REVIEW TO DETERMINING THE EXISTENCE OF A PATTERN OF "TRAINING,
WEAPONRY AND ORDERS IN THE OHIO NATIONAL GUARD WHICH SINGLY OR TOGETHER
REQUIRE OR MAKE INEVITABLE" THE UNJUSTIFIABLE USE OF LETHAL FORCE IN
SUPPRESSING CIVILIAN DISORDERS.  456 F.2D 608, 612. 

[[HC13'(ORIGINAL DOCUMENT PAGE 13)'  THE OHIO USE-OF-FORCE RULES
HAVE NOW BEEN CHANGED, AND ARE IDENTICAL TO THE ARMY USE-OF-FORCE
RULES.  COUNSEL FOR RESPONDENTS STATED AT ORAL ARGUMENT THAT THE USE-OF
FORCE RULES NOW IN EFFECT PROVIDE SATISFACTORY SAFEGUARDS AGAINST
UNWARRANTED USE OF LETHAL FORCE BY THE OHIO NATIONAL GUARD.  TR. OF
ORAL ARG. 31.  AND, AS OF 1971, SPECIAL CIVIL DISTURBANCE CONTROL
TRAINING HAD BEEN PROVIDED FOR THE VARIOUS NATIONAL GUARD UNITS. 

IT IS IN THIS NARROWLY CONFINED SETTING THAT WE ARE ASKED TO DECIDE
THE ISSUES PRESENTED IN THIS CASE.  RESPONDENTS HAVE INFORMED US THAT
THEY SEEK NO CHANGE IN THE CURRENT NATIONAL GUARD REGULATIONS; RATHER
THEY WISH TO ASSURE THEIR CONTINUANCE THROUGH CONSTANT JUDICIAL
SURVEILLANCE OF THE ORDERS, TRAINING, AND WEAPONRY OF THE GUARD. 

WERE IT NOT FOR THE CONTINUING SURVEILLANCE RESPONDENTS SEEK, I
WOULD HAVE LITTLE DIFFICULTY CONCLUDING THAT THE CONTROVERSY IS NOW
MOOT.  EXCEPT FOR THAT ASPECT OF THE CASE, ALL RELIEF REQUESTED BY
RESPONDENTS HAS BEEN OBTAINED.  WHILE ONE MIGHT ARGUE THAT THE
LIKELIHOOD OF FUTURE CHANGES IN THE RULES IS SO ATTENUATED THAT EVEN
THE CLAIM FOR CONTINUING REVIEW BY THE DISTRICT COURT IS MOOT, THIS
ISSUE NEED NOT BE REACHED, AS THE DISTRICT COURT IS CLEARLY WITHOUT
POWER TO GRANT THE RELIEF NOW SOUGHT. 

RESPONDENTS' COMPLAINT RESTS UPON A SINGLE, ISOLATED, AND TRAGIC
INCIDENT AT KENT STATE UNIVERSITY.  THE CONDITIONS THAT EXISTED AT THE
TIME OF THE INCIDENT NO LONGER PREVAIL.  AND RESPONDENTS' COMPLAINT
CONTAINS NOTHING SUGGESTING THAT THEY ARE LIKELY TO SUFFER SPECIFIC
INJURY IN THE FUTURE AS A RESULT OF THE PRACTICES THEY CHALLENGE.  SEE
LAIRD V. TATUM, 408 U.S. 1, 14 (1972).  A COMPLAINT BASED ON A SINGLE
PAST INCIDENT, CONTAINING ALLEGATIONS OF UNSPECIFIED, SPECULATIVE
THREATS OF UNCERTAIN HARM THAT MIGHT OCCUR AT SOME INDEFINITE TIME IN
THE FUTURE, CANNOT SUPPORT RESPONDENTS' STANDING TO MAINTAIN THIS
ACTION. 

[[HC14'(ORIGINAL DOCUMENT PAGE 14)'  SEE COMPLAINT, PAR. 11, APP. 5
6; ROE V. WADE, 410 U.S. 113, 128 (1973). 

THE RELIEF SOUGHT BY RESPONDENTS, MOREOVER, IS BEYOND THE PROVINCE
OF THE JUDICIARY.  RESPONDENTS WOULD HAVE THE DISTRICT COURT, THROUGH
CONTINUING SURVEILLANCE, EVALUATE AND PASS UPON THE MERITS OF THE
GUARD'S TRAINING PROGRAMS, WEAPONS, USE OF FORCE, AND ORDERS.  THE
RELIEF SOUGHT IS PROSPECTIVE ONLY; AN EVALUATION OF THOSE MATTERS IN
THE CONTEXT OF A PARTICULAR FACTUAL SETTING AS A PREDICATE TO RELIEF IN
THE FORM OF AN INJUNCTION AGAINST CONTINUING ACTIVITY OR FOR DAMAGES
WOULD PRESENT WHOLLY DIFFERENT ISSUES.  THIS CASE RELATES TO
PROSPECTIVE RELIEF IN THE FORM OF JUDICIAL SURVEILLANCE OF HIGHLY
SUBJECTIVE AND TECHNICAL MATTERS INVOLVING MILITARY TRAINING AND
COMMAND.  AS SUCH, IT PRESENTS AN "(INAPPROPRIATE) . . . SUBJECT MATTER
FOR JUDICIAL CONSIDERATION," FOR RESPONDENTS ARE ASKING THE DISTRICT
COURT, IN FASHIONING THAT PROSPECTIVE RELIEF, "TO ENTER UPON POLICY
DETERMINATIONS FOR WHICH JUDICIALLY MANAGEABLE STANDARDS ARE LACKING." 
BAKER V. CARR, 369 U.S. 186, 198, 226 (1962). 

FOR THESE REASONS THE JUDGMENT OF THE COURT OF APPEALS MUST BE
REVERSED.  ON THE UNDERSTANDING THAT THIS IS WHAT THE COURT'S OPINION
HOLDS, I JOIN THAT OPINION. 

THOMAS V. MARTIN, ASSISTANT ATTORNEY GENERAL OF OHIO, ARGUED THE
CAUSE FOR PETITIONERS.  WITH HIM ON THE BRIEFS WAS WILLIAM J. BROWN,
ATTORNEY GENERAL. 

MICHAEL E. GELTNER ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEFS WERE LEONARD J. SCHWARTZ, MELVIN L. WULF, SANFORD JAY ROSEN,
AND JOEL M. GORA. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE ASSISTANT
ATTORNEY GENERAL WOOD, ROBERT E. KOPP, ROBERT W. BERRY, AND R. KENLY
WEBSTER. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY DAVID E.
ENGDAHL FOR THE LAW REVISION CENTER, AND BY JACK GREENBERG, JAMES M.
NABRIT III, CHARLES STEPHEN RALSTON, AND DREW S. DAYS III FOR THE NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
..END :







MILLER V. CALIFORNIA 413 U.S. 15 


       APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF

           CALIFORNIA, COUNTY OF ORANGE 

     NO. 70 - 73.  ARGUED JANUARY 18 - 19, 1972--REARGUED NOVEMBER

 7, 1972--DECIDED JUNE 21, 1973; VACATED AND REMANDED. 


    APPELLANT WAS CONVICTED OF MAILING UNSOLICITED SEXUALLY

  EXPLICIT MATERIAL IN VIOLATION OF A CALIFORNIA STATUTE THAT

  APPROXIMATELY INCORPORATED THE OBSCENITY TEST FORMULATED IN

  MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 418 (PLURALITY OPINION). 

  THE TRIAL COURT INSTRUCTED THE JURY TO EVALUATE THE MATERIALS BY

  THE CONTEMPORARY COMMUNITY STANDARDS OF CALIFORNIA.  APPELLANT'S

  CONVICTION WAS AFFIRMED ON APPEAL.  IN LIEU OF THE OBSCENITY

  CRITERIA ENUNCIATED BY THE MEMOIRS PLURALITY, IT IS HELD: 

     1.  OBSCENE MATERIAL IS NOT PROTECTED BY THE FIRST AMENDMENT. 

ROTH V. UNITED STATES, 354 U.S. 476, REAFFIRMED.  A WORK MAY BE

  SUBJECT TO STATE REGULATIONS WHERE THAT WORK, TAKEN AS A WHOLE,

  APPEALS TO THE PRURIENT INTEREST IN SEX; PORTRAYS, IN A PATENTLY

  OFFENSIVE WAY, SEXUAL CONDUCT SPECIFICALLY DEFINED BY THE

  APPLICABLE STATE LAW; AND, TAKEN AS A WHOLE, DOES NOT HAVE

  SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE.  PP.

  23 - 24. 

     2. THE BASIC GUIDELINES FOR THE TRIER OF FACT MUST BE:  (A)

WHETHER "THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY

  STANDARDS" WOULD FIND THAT THE WORK, TAKEN AS A WHOLE, APPEALS TO

  THE PRURIENT INTEREST, ROTH, SUPRA, AT 489, (B) WHETHER THE WORK

  DEPICTS OR DESCRIBES, IN A PATENTLY OFFENSIVE WAY, SEXUAL CONDUCT

  SPECIFICALLY DEFINED BY THE APPLICABLE STATE LAW, AND (C) WHETHER

  THE WORK, TAKEN AS A WHOLE, LACKS SERIOUS LITERARY, ARTISTIC,

  POLITICAL, OR SCIENTIFIC VALUE.  IF A STATE OBSCENITY LAW IS THUS

  LIMITED, FIRST AMENDMENT VALUES ARE ADEQUATELY PROTECTED BY

ULTIMATE INDEPENDENT APPELLATE REVIEW OF CONSTITUTIONAL CLAIMS

  WHEN NECESSARY.  PP. 24 - 25. 

     3.  THE TEST OF "UTTERLY WITHOUT REDEEMING SOCIAL VALUE"

  ARTICULATED IN MEMOIRS, SUPRA, IS REJECTED AS A CONSTITUTIONAL

  STANDARD.  PP. 24 - 25. 

     4.  THE JURY MAY MEASURE THE ESSENTIALLY FACTUAL ISSUES OF

  PRURIENT APPEAL AND PATENT OFFENSIVENESS BY THE STANDARD THAT

  PREVAILS IN THE FORUM COMMUNITY, AND NEED NOT EMPLOY A "NATIONAL

  STANDARD."  PP. 30 - 34. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 

[[HC16'(ORIGINAL DOCUMENT PAGE 16)'  DOUGLAS, J., FILED A DISSENTING
OPINION, POST, P. 37.  BRENNAN, J., FILED A DISSENTING OPINION, IN
WHICH STEWART AND MARSHALL, JJ., JOINED, POST, P. 47. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THIS IS ONE OF A GROUP OF "OBSCENITY-PORNOGRAPHY" CASES BEING
REVIEWED BY THE COURT IN A RE-EXAMINATION OF STANDARDS ENUNCIATED IN
EARLIER CASES INVOLVING WHAT MR. JUSTICE HARLAN CALLED "THE INTRACTABLE
OBSCENITY PROBLEM."  INTERSTATE CIRCUIT, INC. V. DALLAS, 390 U.S. 676,
704 (1968) (CONCURRING AND DISSENTING.) 

APPELLANT CONDUCTED A MASS MAILING CAMPAIGN TO ADVERTISE THE SALE OF
ILLUSTRATED BOOKS, EUPHEMISTICALLY CALLED "ADULT" MATERIAL.  AFTER A
JURY TRIAL, HE WAS CONVICTED OF VIOLATING CALIFORNIA PENAL CODE ^ 311.2
(A), A MISDEMEANOR, BY KNOWINGLY DISTRIBUTING OBSCENE MATTER, /1/  AND
THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF
ORANGE, SUMMARILY AFFIRMED THE JUDGMENT WITHOUT OPINION. 

[[HC17'(ORIGINAL DOCUMENT PAGE 17)'  APPELLANT'S CONVICTION WAS
SPECIFICALLY BASED ON HIS CONDUCT IN CAUSING FIVE UNSOLICITED
ADVERTISING BROCHURES TO BE SENT THROUGHT THE MAIL IN AN ENVELOPE
ADDRESSED TO A RESTAURANT IN NEWPORT BEACH, CALIFORNIA. 

[[HC18'(ORIGINAL DOCUMENT PAGE 18)'  THE ENVELOPE WAS OPENED BY THE
MANAGER OF THE RESTAURANT AND HIS MOTHER.  THEY HAD NOT REQUESTED THE
BROCHURES; THEY COMPLAINED TO THE POLICE. 

THE BROCHURES ADVERTISE FOUR BOOKS ENTITLED "INTERCOURSE,"  "MAN
WOMAN," "SEX ORGIES ILLUSTRATED," AND "AN ILLUSTRATED HISTORY OF
PORNOGRAPHY," AND A FILM ENTITLED "MARITAL INTERCOURSE."  WHILE THE
BROCHURES CONTAIN SOME DESCRIPTIVE PRINTED MATERIAL, PRIMARILY THEY
CONSIST OF PICTURES AND DRAWINGS VERY EXPLICITLY DEPICTING MEN AND
WOMEN IN GROUPS OF TWO OR MORE ENGAGING IN A VARIETY OF SEXUAL
ACTIVITIES, WITH GENITALS OFTEN PROMINENTLY DISPLAYED. 

        I 

THIS CASE INVOLVES THE APPLICATION OF A STATE'S CRIMINAL OBSCENITY
STATUTE TO A SITUATION IN WHICH SEXUALLY EXPLICIT MATERIALS HAVE BEEN
THRUST BY AGGRESSIVE SALES ACTION UPON UNWILLING RECIPIENTS WHO HAD IN
NO WAY INDICATED ANY DESIRE TO RECEIVE SUCH MATERIALS.  THIS COURT HAS
RECOGNIZED THAT THE STATES HAVE A LEGITIMATE INTEREST IN PROHIBITING
DISSEMINATION OR EXHIBITION OF OBSCENE MATERIAL /2/  WHEN THE MODE OF
DISSEMINATION CARRIES WITH IT A SIGNIFICANT DANGER OF OFFENDING THE
SENSIBILITIES OF UNWILLING RECIPIENTS OR OF EXPOSURE TO JUVENILES. 

[[HC19'(ORIGINAL DOCUMENT PAGE 19)'  STANLEY V. GEORGIA, 394 U.S.
557, 567 (1969); GINSBERG V. NEW YORK, 390 U.S. 629, 637 - 643 (1968);
INTERSTATE CIRCUIT, INC. V. DALLAS, SUPRA, AT 690; REDRUP V. NEW YORK,
386 U.S. 767, 769 (1967); JACOBELLIS V. OHIO, 378 U.S. 184, 195
(1964).  SEE RABE V. WASHINGTON, 405 U.S. 313, 317 (1972) (BURGER, C.
J., CONCURRING); UNITED STATES V. REIDEL, 402 U.S. 351, 360 - 362
(1971) (OPINION OF MARSHALL, J.); JOSEPH BURSTYN, INC. V. WILSON, 343
U.S. 495, 502 (1952); BREARD V. ALEXANDRIA, 341 U.S. 622, 644 - 645
(1951); KOVACS V. COOPER, 336 U.S. 77, 88 - 89 (1949); PRINCE V.
MASSACHUSETTS, 321 U.S. 158, 169 - 170 (1944).  CF. BUTLER V. MICHIGAN,
352 U.S. 380, 382 - 383 (1957); PUBLIC UTILITIES COMM'N V. POLLACK, 343
U.S. 451, 464 - 465 (1952).  IT IS IN THIS CONTEXT THAT WE ARE CALLED
ON TO DEFINE THE STANDARDS WHICH MUST BE USED TO IDENTIFY OBSCENE
MATERIAL THAT A STATE MAY REGULATE WITHOUT INFRINGING ON THE FIRST
AMENDMENT AS APPLICABLE TO THE STATES THROUGH THE FOURTEENTH
AMENDMENT. 

[[HC20'(ORIGINAL DOCUMENT PAGE 20)' 

THE DISSENT OF MR. JUSTICE BRENNAN REVIEWS THE BACKGROUND OF THE
OBSCENITY PROBLEM, BUT SINCE THE COURT NOW UNDERTAKES TO FORMULATE
STANDARDS MORE CONCRETE THAN THOSE IN THE PAST, IT IS USEFUL FOR US TO
FOCUS ON TWO OF THE LANDMARK CASES IN THE SOMEWHAT TORTURED HISTORY OF
THE COURT'S OBSCENITY DECISIONS.  IN ROTH V. UNITED STATES, 354 U.S.
476 (1957), THE COURT SUSTAINED A CONVICTION UNDER A FEDERAL STATUTE
PUNISHING THE MAILING OF "OBSCENE, LEWD, LASCIVIOUS OR FILTHY . . ." 
MATERIALS.  THE KEY TO THAT HOLDING WAS THE COURT'S REJECTION OF THE
CLAIM THAT OBSCENE MATERIALS WERE PROTECTED BY THE FIRST AMENDMENT. 
FIVE JUSTICES JOINED IN THE OPINION STATING: 

     "ALL IDEAS HAVING EVEN THE SLIGHTEST REDEEMING SOCIAL

  IMPORTANCE--UNORTHODOX IDEAS, CONTROVERSIAL IDEAS, EVEN IDEAS

  HATEFUL TO THE PREVAILING CLIMATE OF OPINION--HAVE THE FULL

  PROTECTION OF THE (FIRST AMENDMENT) GUARANTIES, UNLESS EXCLUDABLE

BECAUSE THEY ENCROACH UPON THE LIMITED AREA OF MORE IMPORTANT

  INTERESTS.  BUT IMPLICIT IN THE HISTORY OF THE FIRST AMENDMENT IS

  THE REJECTION OF OBSCENITY AS UTTERLY WITHOUT REDEEMING SOCIAL

  IMPORTANCE.  . . . THIS IS THE SAME JUDGMENT EXPRESSED BY THIS

  COURT IN CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571 - 572: 

     "'. . . THERE ARE CERTAIN WELL-DEFINED AND NARROWLY LIMITED

  CLASSES OF SPEECH, THE PREVENTION AND PUNISHMENT OF WHICH HAVE

  NEVER BEEN THOUGHT TO RAISE ANY CONSTITUTIONAL PROBLEM.  THESE

  INCLUDE THE LEWD AND OBSCENE . . . . IT HAS BEEN WELL OBSERVED

  THAT SUCH UTTERANCES ARE NO ESSENTIAL PART OF ANY EXPOSITION OF

  IDEAS, AND ARE OF SUCH SLIGHT SOCIAL VALUE AS A STEP TO TRUTH

  THAT ANY BENEFIT THAT MAY BE DERIVED FROM THEM IS CLEARLY

  OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND MORALITY.  . . .' 

  (EMPHASIS BY COURT IN ROTH OPINION.) 

[[HC21'(ORIGINAL DOCUMENT PAGE 21)' 

"WE HOLD THAT OBSCENITY IS NOT WITHIN THE AREA OF CONSTITUTIONALLY
PROTECTED SPEECH OR PRESS."  354 U.S., AT 484 - 485 (FOOTNOTES
OMITTED). 

NINE YEARS LATER, IN MEMOIRS V. MASSACHUSETTS, 383 U.S. 413 (1966),
THE COURT VEERED SHARPLY AWAY FROM THE ROTH CONCEPT AND, WITH ONLY
THREE JUSTICES IN THE PLURALITY OPINION, ARTICULATED A NEW TEST OF
OBSCENITY.  THE PLURALITY HELD THAT UNDER THE ROTH DEFINITION 

"AS ELABORATED IN SUBSEQUENT CASES, THREE ELEMENTS MUST COALESCE; IT
MUST BE ESTABLISHED THAT (A) THE DOMINANT THEME OF THE MATERIAL TAKEN
AS A WHOLE APPEALS TO A PRURIENT INTEREST IN SEX; (B) THE MATERIAL IS
PATENTLY OFFENSIVE BECAUSE IT AFFRONTS CONTEMPORARY COMMUNITY STANDARDS
RELATING TO THE DESCRIPTION OR REPRESENTATION OF SEXUAL MATTERS; AND
(C) THE MATERIAL IS UTTERLY WITHOUT REDEEMING SOCIAL VALUE."  ID., AT
418.  THE SHARPNESS OF THE BREAK WITH ROTH, REPRESENTED BY THE THIRD
ELEMENT OF THE MEMOIRS TEST AND EMPHASIZED BY MR. JUSTICE WHITE'S
DISSENT, ID., AT 460 - 462, WAS FURTHER UNDERSCORED WHEN THE MEMOIRS
PLURALITY WENT ON TO STATE: 

     "THE SUPREME JUDICIAL COURT ERRED IN HOLDING THAT A BOOK NEED

NOT BE 'UNQUALIFIEDLY WORTHLESS BEFORE IT CAN BE DEEMED

OBSCENCE.'  A BOOK CANNOT BE PROSCRIBED UNLESS IT IS FOUND TO BE

  UTTERLY WITHOUT REDEEMING SOCIAL VALUE."  ID., AT 419 (EMPHASIS

  IN ORIGINAL). 

WHILE ROTH PRESUMED "OBSCENITY" TO BE "UTTERLY WITHOUT REDEEMING
SOCIAL IMPORTANCE."  MEMOIRS REQUIRED THAT TO PROVE OBSCENITY IT MUST
BE AFFIRMATIVELY ESTABLISHED THAT THE MATERIAL IS "UTTERLY WITHOUT
REDEEMING SOCIAL VALUE." 

[[HC22'(ORIGINAL DOCUMENT PAGE 22)'  THUS, EVEN AS THEY REPEATED THE
WORDS OF ROTH, THE MEMOIRS PLURALITY PRODUCED A DRASTICALLY ALTERED
TEST THAT CALLED ON THE PROSECUTION TO PROVE A NEGATIVE, I. E., THAT
THE MATERIAL WAS "UTTERLY WITHOUT REDEEMING SOCIAL VALUE"--A BURDEN
VIRTUALLY IMPOSSIBLE TO DISCHARGE UNDER OUR CRIMINAL STANDARDS OF
PROOF.  SUCH CONSIDERATIONS CAUSED MR. JUSTICE HARLAN TO WONDER IF THE
"UTTERLY WITHOUT REDEEMING SOCIAL VALUE" TEST HAD ANY MEANING AT ALL. 
SEE MEMOIRS V. MASSACHUSETTS, ID., AT 459 (HARLAN, J., DISSENTING). 
SEE ALSO ID., AT 461 (WHITE, J., DISSENTING); UNITED STATES V. GRONER,
479 F.2D 577, 579 - 581 (CA5 1973). 

APART FROM THE INITIAL FORMULATION IN THE ROTH CASE, NO MAJORITY OF
THE COURT HAS AT ANY GIVEN TIME BEEN ABLE TO AGREE ON A STANDARD TO
DETERMINE WHAT CONSTITUTES OBSCENE, PORNOGRAPHIC MATERIAL SUBJECT TO
REGULATION UNDER THE STATES' POLICE POWER.  SEE, E. G., REDRUP V. NEW
YORK, 386 U.S., AT 770 - 771.  WE HAVE SEEN "A VARIETY OF VIEWS AMONG
THE MEMBERS OF THE COURT UNMATCHED IN ANY OTHER COURSE OF
CONSTITUTIONAL ADJUDICATION."  INTERSTATE CIRCUIT, INC. V. DALLAS, 390
U.S., AT 704 - 705 (HARLAN, J., CONCURRING AND DISSENTING) (FOOTNOTE
OMITTED).  /3/  THIS IS NOT REMARKABLE, FOR IN THE AREA OF FREEDOM OF
SPEECH AND PRESS THE COURTS MUST ALWAYS REMAIN SENSITIVE TO ANY
INFRINGEMENT ON GENUINELY SERIOUS LITERARY, ARTISTIC, POLITICAL, OR
SCIENTIFIC EXPRESSION. 

[[HC23'(ORIGINAL DOCUMENT PAGE 23)'  THIS IS AN AREA IN WHICH THERE
ARE FEW ETERNAL VERITIES. 

THE CASE WE NOW REVIEW WAS TRIED ON THE THEORY THAT THE CALIFORNIA
PENAL CODE ^ 311 APPROXIMATELY INCORPORATES THE THREE-STAGE MEMOIRS
TEST, SUPRA. BUT NOW THE MEMOIRS TEST HAS BEEN ABANDONED AS UNWORKABLE
BY ITS AUTHOR, /4/  AND NO MEMBER OF THE COURT TODAY SUPPORTS THE
MEMOIRS FORMULATION. 

        II 

THIS MUCH HAS BEEN CATEGORICALLY SETTLED BY THE COURT, THAT OBSCENE
MATERIAL IS UNPROTECTED BY THE FIRST AMENDMENT.  KOIS V. WISCONSIN, 408
U.S. 229 (1972); UNITED STATES V. REIDEL, 402 U.S., AT 354; ROTH V.
UNITED STATES, SUPRA, AT 485.  /5/  "THE FIRST AND FOURTEENTH
AMENDMENTS HAVE NEVER BEEN TREATED AS ABSOLUTES (FOOTNOTE OMITTED)." 
BREARD V. ALEXANDRIA, 341 U.S., AT 642, AND CASES CITED.  SEE TIMES
FILM CORP. V. CHICAGO, 365 U.S. 43, 47 - 50 (1961); JOSEPH BURSTYN,
INC. V. WILSON, 343 U.S., AT 502.  WE ACKNOWLEDGE, HOWEVER, THE
INHERENT DANGERS OF UNDERTAKING TO REGULATE ANY FORM OF EXPRESSION. 
STATE STATUTES DESIGNED TO REGULATE OBSCENE MATERIALS MUST BE CAREFULLY
LIMITED. 

[[HC24'(ORIGINAL DOCUMENT PAGE 24)'  SEE INTERSTATE CIRCUIT, INC. V.
DALLAS, SUPRA, AT 682 - 685.  AS A RESULT, WE NOW CONFINE THE
PERMISSIBLE SCOPE OF SUCH REGULATION TO WORKS WHICH DEPICT OR DESCRIBE
SEXUAL CONDUCT.  THAT CONDUCT MUST BE SPECIFICALLY DEFINED BY THE
APPLICABLE STATE LAW, AS WRITTEN OR AUTHORITATIVELY CONSTRUED.  /6/  A
STATE OFFENSE MUST ALSO BE LIMITED TO WORKS WHICH, TAKEN AS A WHOLE,
APPEAL TO THE PRURIENT INTEREST IN SEX, WHICH PORTRAY SEXUAL CONDUCT IN
A PATENTLY OFFENSIVE WAY, AND WHICH, TAKEN AS A WHOLE, DO NOT HAVE
SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE. 

THE BASIC GUIDELINES FOR THE TRIER OF FACT MUST BE:  (A) WHETHER
"THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS" WOULD
FIND THAT THE WORK, TAKEN AS A WHOLE, APPEALS TO THE PRURIENT INTEREST,
KOIS V. WISCONSIN, SUPRA, AT 230, QUOTING ROTH V. UNITED STATES, SUPRA,
AT 489; (B) WHETHER THE WORK DEPICTS OR DESCRIBES, IN A PATENTLY
OFFENSIVE WAY, SEXUAL CONDUCT SPECIFICALLY DEFINED BY THE APPLICABLE
STATE LAW; AND (C) WHETHER THE WORK, TAKEN AS A WHOLE, LACKS SERIOUS
LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE.  WE DO NOT ADOPT AS
A CONSTITUTIONAL STANDARD THE "UTTERLY WITHOUT REDEEMING SOCIAL VALUE"
TEST OF MEMOIRS V. MASSACHUSETTS, 383 U.S., AT 419; THAT CONCEPT HAS
NEVER COMMANDED THE ADHERENCE OF MORE THAN THREE JUSTICES AT ONE TIME. 
/7/

[[HC25'(ORIGINAL DOCUMENT PAGE 25)'  SEE SUPRA, AT 21.  IF A STATE
LAW THAT REGULATES OBSCENE MATERIAL IS THUS LIMITED, AS WRITTEN OR
CONSTRUED, THE FIRST AMENDMENT VALUES APPLICABLE TO THE STATES THROUGH
THE FOURTEENTH AMENDMENT ARE ADEQUATELY PROTECTED BY THE ULTIMATE POWER
OF APPELLATE COURTS TO CONDUCT AN INDEPENDENT REVIEW OF CONSTITUTIONAL
CLAIMS WHEN NECESSARY.  SEE KOIS V. WISCONSIN, SUPRA, AT 232; MEMOIRS
V. MASSACHUSETTS, SUPRA, AT 459 - 460 (HARLAN, J., DISSENTING);
JACOBELLIS V. OHIO, 378 U.S., AT 204 (HARLAN, J., DISSENTING); NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254, 284 - 285 (1964); ROTH V. UNITED
STATES, SUPRA, AT 497 - 498 (HARLAN, J., CONCURRING AND DISSENTING). 

WE EMPHASIZE THAT IT IS NOT OUR FUNCTION TO PROPOSE REGULATORY
SCHEMES FOR THE STATES.  THAT MUST AWAIT THEIR CONCRETE LEGISLATIVE
EFFORTS.  IT IS POSSIBLE, HOWEVER, TO GIVE A FEW PLAIN EXAMPLES OF WHAT
A STATE STATUTE COULD DEFINE FOR REGULATION UNDER PART (B) OF THE
STANDARD ANNOUNCED IN THIS OPINION, SUPRA: 

(A) PATENTLY OFFENSIVE REPRESENTATIONS OR DESCRIPTIONS OF ULTIMATE
SEXUAL ACTS, NORMAL OR PERVERTED, ACTUAL OR SIMULATED. 

(B) PATENTLY OFFENSIVE REPRESENTATIONS OR DESCRIPTIONS OF
MASTURBATION, EXCRETORY FUNCTIONS, AND LEWD EXHIBITION OF THE
GENITALS. 

SEX AND NUDITY MAY NOT BE EXPLOITED WITHOUT LIMIT BY FILMS OR
PICTURES EXHIBITED OR SOLD IN PLACES OF PUBLIC ACCOMMODATION ANY MORE
THAN LIVE SEX AND NUDITY CAN BE EXHIBITED OR SOLD WITHOUT LIMIT IN SUCH
PUBLIC PLACES.  /8/ 

[[HC26'(ORIGINAL DOCUMENT PAGE 26)'  AT A MINIMUM, PRURIENT,
PATENTLY OFFENSIVE DEPICTION OR DESCRIPTION OF SEXUAL CONDUCT MUST HAVE
SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE TO MERIT
FIRST AMENDMENT PROTECTION.  SEE KOIS V. WISCONSIN, SUPRA, AT 230 -
232; ROTH V. UNITED STATES, SUPRA, AT 487; THORNHILL V. ALABAMA, 310
U.S. 88, 101 - 102 (1940).  FOR EXAMPLE, MEDICAL BOOKS FOR THE
EDUCATION OF PHYSICIANS AND RELATED PERSONNEL NECESSARILY USE GRAPHIC
ILLUSTRATIONS AND DESCRIPTIONS OF HUMAN ANATOMY.  IN RESOLVING THE
INEVITABLY SENSITIVE QUESTIONS OF FACT AND LAW, WE MUST CONTINUE TO
RELY ON THE JURY SYSTEM, ACCOMPANIED BY THE SAFEGUARDS THAT JUDGES,
RULES OF EVIDENCE, PRESUMPTION OF INNOCENCE, AND OTHER PROTECTIVE
FEATURES PROVIDE, AS WE DO WITH RAPE, MURDER, AND A HOST OF OTHER
OFFENSES AGAINST SOCIETY AND ITS INDIVIDUAL MEMBERS.  /9/ 

MR. JUSTICE BRENNAN, AUTHOR OF THE OPINIONS OF THE COURT, OR THE
PLURALITY OPINIONS, IN ROTH V. UNITED STATES, SUPRA; JACOBELLIS V.
OHIO, SUPRA; GINZBURG V. UNITED STATES, 383 U.S. 463 (1966); MISHKIN V.
NEW YORK, 383 U.S. 502 (1966); AND MEMOIRS V. MASSACHUSETTS, SUPRA, HAS
ABANDONED HIS FORMER POSITION AND NOW MAINTAINS THAT NO FORMULATION OF
THIS COURT, THE CONGRESS, OR THE STATES CAN ADEQUATELY DISTINGUISH
OBSCENE MATERIAL UNPROTECTED BY THE FIRST AMENDMENT FROM PROTECTED
EXPRESSION, PARIS ADULT THEATRE I V. SLATON, POST, P. 73 (BRENNAN, J.,
DISSENTING).     [[HC27'(ORIGINAL DOCUMENT PAGE 27)'  PARADOXICALLY,
MR. JUSTICE BRENNAN INDICATES THAT SUPPRESSION OF UNPROTECTED OBSCENE
MATERIAL IS PERMISSIBLE TO AVOID EXPOSURE TO UNCONSENTING ADULTS, AS IN
THIS CASE, AND TO JUVENILES, ALTHOUGH HE GIVES NO INDICATION OF HOW THE
DIVISION BETWEEN PROTECTED AND NONPROTECTED MATERIALS MAY BE DRAWN WITH
GREATER PRECISION FOR THESE PURPOSES THAN FOR REGULATION OF COMMERCIAL
EXPOSURE TO CONSENTING ADULTS ONLY.  NOR DOES HE INDICATE WHERE IN THE
CONSTITUTION HE FINDS THE AUTHORITY TO DISTINGUISH BETWEEN A WILLING
"ADULT" ONE MONTH PAST THE STATE LAW AGE OF MAJORITY AND A WILLING
"JUVENILE" ONE MONTH YOUNGER. 

UNDER THE HOLDINGS ANNOUNCED TODAY, NO ONE WILL BE SUBJECT TO
PROSECUTION FOR THE SALE OR EXPOSURE OF OBSCENE MATERIALS UNLESS THESE
MATERIALS DEPICT OR DESCRIBE PATENTLY OFFENSIVE "HARD CORE" SEXUAL
CONDUCT SPECIFICALLY DEFINED BY THE REGULATING STATE LAW, AS WRITTEN OR
CONSTRUED.  WE ARE SATISFIED THAT THESE SPECIFIC PREREQUISITES WILL
PROVIDE FAIR NOTICE TO A DEALER IN SUCH MATERIALS THAT HIS PUBLIC AND
COMMERCIAL ACTIVITIES MAY BRING PROSECUTION.  SEE ROTH V. UNITED
STATES, SUPRA, AT 491 - 492.  CF. GINSBERG V. NEW YORK, 390 U.S., AT
643.  /10/  IF THE INABILITY TO DEFINE REGULATED MATERIALS WITH
ULTIMATE, GOD-LIKE PRECISION ALTOGETHER REMOVES THE POWER OF THE STATES
OR THE CONGRESS TO REGULATE, THEN "HARD CORE" PORNOGRAPHY MAY BE
EXPOSED WITHOUT LIMIT TO THE JUVENILE, THE PASSERBY, AND THE CONSENTING
ADULT ALIKE, AS, INDEED, MR. JUSTICE DOUGLAS CONTENDS. 

[[HC28'(ORIGINAL DOCUMENT PAGE 28)'  AS TO MR. JUSTICE DOUGLAS'
POSITION, SEE UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363,
379 - 380 (1971) (BLACK, J., JOINED BY DOUGLAS, J., DISSENTING);
GINZBURG V. UNITED STATES, SUPRA, AT 476; 491 - 492 (BLACK, J., AND
DOUGLAS, J., DISSENTING); JACOBELLIS V. OHIO, SUPRA, AT 196 (BLACK, J.,
JOINED BY DOUGLAS, J., CONCURRING); ROTH, SUPRA, AT 508 - 514 (DOUGLAS,
J., DISSENTING).  IN THIS BELIEF, HOWEVER, MR. JUSTICE DOUGLAS NOW
STANDS ALONE. 

MR. JUSTICE BRENNAN ALSO EMPHASIZES "INSTITUTIONAL STRESS" IN
JUSTIFICATION OF HIS CHANGE OF VIEW.  NOTING THAT "(THE NUMBER OF
OBSCENITY CASES ON OUR DOCKET GIVES AMPLE TESTIMONY TO THE BURDEN THAT
HAS BEEN PLACED UPON THIS COURT," HE QUITE RIGHTLY REMARKS THAT THE
EXAMINATION OF CONTESTED MATERIALS "IS HARDLY A SOURCE OF EDIFICATION
TO THE MEMBERS OF THIS COURT."  PARIS ADULT THEATRE I V. SLATON, POST,
AT 92, 93. 

[[HC29'(ORIGINAL DOCUMENT PAGE 29)'  HE ALSO NOTED, AND WE AGREE,
THAT "UNCERTAINTY OF THE STANDARDS CREATES A CONTINUING SOURCE OF
TENSION BETWEEN STATE AND FEDERAL COURTS . . . ."  "THE PROBLEM IS . .
. THAT ONE CANNOT SAY WITH CERTAINTY THAT MATERIAL IS OBSCENE UNTIL AT
LEAST FIVE MEMBERS OF THIS COURT, APPLYING INEVITABLY OBSCURE
STANDARDS, HAVE PRONOUNCED IT SO."  ID., AT 93, 92. 

IT IS CERTAINLY TRUE THAT THE ABSENSE, SINCE ROTH, OF A SINGLE
MAJORITY VIEW OF THIS COURT AS TO PROPER STANDARDS FOR TESTING
OBSCENITY HAS PLACED A STRAIN ON BOTH STATE AND FEDERAL COURTS.  BUT
TODAY, FOR THE FIRST TIME SINCE ROTH WAS DECIDED IN 1957, A MAJORITY OF
THIS COURT HAS AGREED ON CONCRETE GUIDELINES TO ISOLATE "HARD CORE"
PRONOGRAPHY FROM EXPRESSION PROTECTED BY THE FIRST AMENDMENT.  NOW WE
MAY ABANDON THE CASUAL PRACTICE OF REDRUP V. NEW YORK, 386 U.S. 767
(1967), AND ATTEMPT TO PROVIDE POSITIVE GUIDANCE TO FEDERAL AND STATE
COURTS ALIKE. 

THIS MAY NOT BE AN EASY ROAD, FREE FROM DIFFICULTY.  BUT NO AMOUNT
OF "FATIGUE" SHOULD LEAD US TO ADOPT A CONVENIENT "INSTITUTIONAL"
RATIONALE--AN ABSOLUTIST, "ANYTHING GOES" VIEW OF THE FIRST AMENDMENT-
BECAUSE IT WILL LIGHTEN OUR BURDENS.  /11/  "SUCH AN ABNEGATION OF
JUDICIAL SUPERVISION IN THIS FIELD WOULD BE INCONSISTENT WITH OUR DUTY
TO UPHOLD THE CONSTITUTIONAL GUARANTEES."  JACOBELLIS V. OHIO, SUPRA,
AT 187 - 188 (OPINION OF BRENNAN, J.).  NOR SHOULD WE REMEDY "TENSION
BETWEEN STATE AND FEDERAL COURTS" BY ARBITRARILY DEPRIVING THE STATES
OF A POWER RESERVED TO THEM UNDER THE CONSTITUTION, A POWER WHICH THEY
HAVE ENJOYED AND EXERCISED CONTINUOUSLY FROM BEFORE THE ADOPTION OF THE
FIRST AMENDMENT TO THIS DAY.  SEE ROTH V. UNITED STATES, SUPRA, AT 482
485.  "OUR DUTY ADMITS OF NO 'SUBSTITUTE FOR FACING UP TO THE TOUGH
INDIVIDUAL PROBLEMS OF CONSTITUTIONAL JUDGMENT INVOLVED IN EVERY
OBSCENITY CASE.' 

[[HC30'(ORIGINAL DOCUMENT PAGE 30)'  (ROTH V. UNITED STATES, SUPRA,
AT 498); SEE MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478, 488
(OPINION OF HARLAN, J.)  (FOOTNOTE OMITTED)."  JACOBELLIS V. OHIO,
SUPRA, AT 188 (OPINION OF BRENNAN, J.). 

        III 

UNDER A NATIONAL CONSTITUTION FUNDAMENTAL FIRST AMENDMENT
LIMITATIONS ON THE POWERS OF THE STATES DO NOT VARY FROM COMMUNITY TO
COMMUNITY, BUT THIS DOES NOT MEAN THAT THERE ARE, OR SHOULD OR CAN BE,
FIXED, UNIFORM NATIONAL STANDARDS OF PRECISELY WHAT APPEALS TO THE
"PRURIENT INTEREST" OR IS "PATENTLY OFFENSIVE."  THESE ARE ESSENTIALLY
QUESTIONS OF FACT, AND OUR NATION IS SIMPLY TOO BIG AND TOO DIVERSE FOR
THIS COURT TO REASONABLY EXPECT THAT SUCH STANDARDS COULD BE
ARTICULATED FOR ALL 50 STATES IN A SINGLE FORMULATION, EVEN ASSUMING
THE PREREQUISITE CONSENSUS EXISTS.  WHEN TRIERS OF FACT ARE ASKED TO
DECIDE WHETHER "THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY
STANDARDS" WOULD CONSIDER CERTAIN MATERIALS "PRURIENT," IT WOULD BE
UNREALISTIC TO REQUIRE THAT THE ANSWER BE BASED ON SOME ABSTRACT
FORMULATION.  THE ADVERSARY SYSTEM, WITH LAW JURORS AS THE USUAL
ULTIMATE FACTFINDERS IN CRIMINAL PROSECUTIONS, HAS HISTORICALLY
PERMITTED TRIERS OF FACT TO DRAW ON THE STANDARDS OF THEIR COMMUNITY,
GUIDED ALWAYS BY LIMITING INSTRUCTIONS ON THE LAW.  TO REQUIRE A STATE
TO STRUCTURE OBSCENITY PROCEEDINGS AROUND EVIDENCE OF A NATIONAL
"COMMUNITY STANDARD" WOULD BE AN EXERCISE IN FUTILITY. 

AS NOTED BEFORE, THIS CASE WAS TRIED ON THE THEORY THAT THE
CALIFORNIA OBSCENITY STATUTE SOUGHT TO INCORPORATE THE TRIPARTITE TEST
OF MEMOIRS.  THUS, A "NATIONAL" STANDARD OF FIRST AMENDMENT PROTECTION
ENUMERATED BY A PLURITY OF THIS COURT, WAS CORRECTLY REGARDED AT THE
TIME OF TRIAL AS LIMITING STATE PROSECUTION UNDER THE CONTROLLING CASE
LAW. 

[[HC31'(ORIGINAL DOCUMENT PAGE 31)'  THE JURY, HOWEVER, WAS
EXPLICITLY INSTRUCTED THAT, IN DETERMINING WHETHER THE "DOMINANT THEME
OF THE MATERIAL AS A WHOLE . . . APPEALS TO THE PRURIENT INTEREST" AND
IN DETERMINING WHETHER THE MATERIAL "GOES SUBSTANTIALLY BEYOND
CUSTOMARY LIMITS OF CANDOR AND AFFRONTS CONTEMPORARY COMMUNITY
STANDARDS OF DECENCY," IT WAS TO APPLY "CONTEMPORARY COMMUNITY
STANDARDS OF THE STATE OF CALIFORNIA." 

DURING THE TRIAL, BOTH THE PROSECUTION AND THE DEFENSE ASSUMED THAT
THE RELEVANT "COMMUNITY STANDARDS" IN MAKING THE FACTUAL DETERMINATION
OF OBSCENITY WERE THOSE OF THE STATE OF CALIFORNIA, NOT SOME
HYPOTHETICAL STANDARD OF THE ENTIRE UNITED STATES OF AMERICA.  DEFENSE
COUNSEL AT TRIAL NEVER OBJECTED TO THE TESTIMONY OF THE STATE'S EXPERT
ON COMMUNITY STANDARDS /12/  OR TO THE INSTRUCTIONS OF THE TRIAL JUDGE
ON "STATEWIDE" STANDARDS.  ON APPEAL TO THE APPELLATE DEPARTMENT,
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE, APPELLANT FOR THE FIRST
TIME CONTENDED THAT APPLICATION OF STATE, RATHER THAN NATIONAL,
STANDARDS VIOLATED THE FIRST AND FOURTEENTH AMENDMENTS. 

WE CONCLUDE THAT NEITHER THE STATE'S ALLEGED FAILURE TO OFFER
EVIDENCE OF "NATIONAL STANDARDS" NOR THE TRIAL COURT'S CHARGE THAT THE
JURY CONSIDER STATE COMMUNITY STANDARDS, WERE CONSTITUTIONAL ERRORS. 
NOTHING IN THE FIRST AMENDMENT REQUIRES THAT A JURY MUST CONSIDER
HYPOTHETICAL AND UNASCERTAINABLE "NATIONAL STANDARDS" WHEN ATTEMPTING
TO DETERMINE WHETHER CERTAIN MATERIALS ARE OBSCENE AS A MATTER OF
FACT. 

[[HC32'(ORIGINAL DOCUMENT PAGE 32)'  MR. CHIEF JUSTICE WARREN
POINTEDLY COMMENTED IN HIS DISSENT IN JACOBELLIS V. OHIO, SUPRA, AT
200: 

     "IT IS MY BELIEF THAT WHEN THE COURT SAID IN ROTH THAT

  OBSCENITY IS TO BE DEFINED BY REFERENCE TO 'COMMUNITY STANDARDS,'

  IS MEANT COMMUNITY STANDARDS--NOT A NATIONAL STANDARD, AS IS

  SOMETIMES ARGUED.  I BELIEVE THAT THERE IS NO PROVABLE 'NATIONAL

  STANDARD' . . . . AT ALL EVENTS, THIS COURT HAS NOT BEEN ABLE TO

  ENUNCIATE ONE, AND IT WOULD BE UNREASONABLE TO EXPECT LOCAL

  COURTS TO DIVINE ONE." 

IT IS NEITHER REALISTIC NOR CONSTITUTIONALLY SOUND TO READ THE FIRST
AMENDMENT AS REQUIRING THAT THE PEOPLE OF MAINE OR MISSISSIPPI ACCEPT
PUBLIC DEPICTION OF CONDUCT FOUND TOLERABLE IN LAS VEGAS, OR NEW YORK
CITY.  /13/  SEE HOYT V. MINNESOTA, 399 U.S. 524 - 525 (1970)
(BLACKMUN, J., DISSENTING); WALKER V. OHIO, 398 U.S. 434 (1970)
(BURGER, C. J., DISSENTING); ID., AT 434 - 435 (HARLAN, J.,
DISSENTING); CAIN V. KENTUCKY, 397 U.S. 319 (1970) (BURGER, C. J.,
DISSENTING); ID., AT 319 - 320 (HARLAN, J., DISSENTING); UNITED STATES
V. GRONER, 479 F.2D, AT 581 - 583; O'MEARA, SHAFFER, OBSCENITY IN THE
SUPREME COURT:  A NOTE ON JACOBELLIS V. OHIO, 40 NOTRE DAME LAW.  1, 6
7 (1964). 

[[HC33'(ORIGINAL DOCUMENT PAGE 33)'  SEE ALSO MEMOIRS V.
MASSACHUSETTS, 383 U.S., AT 458 (HARLAN, J., DISSENTING); JACOBELLIS V.
OHIO, SUPRA, AT 203 - 204 (HARLAN, J., DISSENTING); ROTH V. UNITED
STATES, SUPRA, AT 505 - 506 (HARLAN, J., CONCURRING AND DISSENTING). 
PEOPLE IN DIFFERENT STATES VARY IN THEIR TASTES AND ATTITUDES, AND THIS
DIVERSITY IS NOT TO BE STRANGLED BY THE ABSOLUTISM OF IMPOSED
UNIFORMITY.  AS THE COURT MADE CLEAR IN MISHKIN V. NEW YORK, 383 U.S.,
AT 508 - 509, THE PRIMARY CONCERN WITH REQUIRING A JURY TO APPLY THE
STANDARD OF "THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY
STANDARDS" IS TO BE CERTAIN THAT, SO FAR AS MATERIAL IS NOT AIMED AT A
DEVIANT GROUP, IT WILL BE JUDGED BY ITS IMPACT ON AN AVERAGE PERSON,
RATHER THAN A PARTICULARLY SUSCEPTIBLE OR SENSITIVE PERSON--OR INDEED A
TOTALLY INSENSITIVE ONE.  SEE ROTH V. UNITED STATES, SUPRA, AT 489. 
CF. THE NOW DISCREDITED TEST IN REGINA V. HICKLIN, (1868) L. R. 3 Q. B.
360.  WE HOLD THAT THE REQUIREMENT THAT THE JURY EVALUATE THE MATERIALS
WITH REFERENCE TO "CONTEMPORARY STANDARDS OF THE STATE OF CALIFORNIA"
SERVES THIS PROTECTIVE PURPOSE AND IS CONSTITUTIONALLY ADEQUATE.  /14/ 

[[HC34'(ORIGINAL DOCUMENT PAGE 34)'

        IV 

THE DISSENTING JUSTICES SOUND THE ALARM OF REPRESSION.  BUT, IN OUR
VIEW, TO EQUATE THE FREE AND ROBUST EXCHANGE OF IDEAS AND POLITICAL
DEBATE WITH COMMERCIAL EXPLOITATION OF OBSCENE MATERIAL DEMEANS THE
GRAND CONCEPTION OF THE FIRST AMENDMENT AND ITS HIGH PURPOSES IN THE
HISTORIC STRUGGLE FOR FREEDOM.  IT IS A "MISUSE OF THE GREAT GUARANTEES
OF FREE SPEECH AND FREE PRESS . . . ."  BREARD V. ALEXANDRIA, 341 U.S.,
AT 645.  THE FIRST AMENDMENT PROTECTS WORKS WHICH, TAKEN AS A WHOLE,
HAVE SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE,
REGARDLESS OF WHETHER THE GOVERNMENT OR A MAJORITY OF THE PEOPLE
APPROVE OF THE IDEAS THESE WORKS REPRESENT.  "THE PROTECTION GIVEN
SPEECH AND PRESS WAS FASHIONED TO ASSURE UNFETTERED INTERCHANGE OF
IDEAS FOR THE BRINGING ABOUT OF POLITICAL AND SOCIAL CHANGES DESIRED BY
THE PEOPLE," 

[[HC35'(ORIGINAL DOCUMENT PAGE 35)'  ROTH V. UNITED STATES, SUPRA,
AT 484 (EMPHASIS ADDED).  SEE KOIS V. WISCONSIN, 408 U.S., AT 230 -
232; THORNHILL V. ALABAMA, 310 U.S., AT 101 - 102.  BUT THE PUBLIC
PORTRAYAL OF HARD CORE SEXUAL CONDUCT FOR ITS OWN SAKE, AND FOR THE
ENSUING COMMERCIAL GAIN, IS A DIFFERENT MATTER.  /15/ 

THERE IS NO EVIDENCE, EMPIRICAL OR HISTORICAL, THAT THE STERN 19TH
CENTURY AMERICAN CENSORSHIP OF PUBLIC DISTRIBUTION AND DISPLAY OF
MATERIAL RELATING TO SEX, SEE ROTH V. UNITED STATES, SUPRA, AT 482 -
485, IN ANY WAY LIMITED OR AFFECTED EXPRESSION OF SERIOUS LITERARY,
ARTISTIC, POLITICAL, OR SCIENTIFIC IDEAS.  ON THE CONTRARY, IT IS
BEYOND ANY QUESTION THAT THE ERA FOLLOWING THOMAS JEFFERSON TO THEODORE
ROOSEVELT WAS AN "EXTRAORDINARILY VIGOROUS PERIOD," NOT JUST IN
ECONOMICS AND POLITICS, BUT IN BELLES LETTRES AND IN "THE OUTLYING
FIELDS OF SOCIAL AND POLITICAL PHILOSOPHIES."  /16/  WE DO NOT SEE THE
HARSH HAND OF CENSORSHIP OF IDEAS--GOOD OR BAD, SOUND OR UNSOUND--AND
"REPRESSION" OF POLITICAL LIBERTY LURKING IN EVERY STATE REGULATION OF
COMMERCIAL EXPLOITATION OF HUMAN INTEREST IN SEX. 

[[HC36'(ORIGINAL DOCUMENT PAGE 36)' 

MR. JUSTICE BRENNAN FINDS "IT IS HARD TO SEE HOW STATE-ORDERED
REGIMENTATION OF OUR MINDS CAN EVER BE FORESTALLED."  PARIS ADULT
THEATRE I V. SLATON, POST, AT 110 (BRENNAN, J., DISSENTING).  THESE
DOLEFUL ANTICIPATIONS ASSUME THAT COURTS CANNOT DISTINGUISH COMMERCE IN
IDEAS PROTECTED BY THE FIRST AMENDMENT, FROM COMMERCIAL EXPLOITATION OF
OBSCENE MATERIAL.  MOREOVER, STATE REGULATION OF HARD CORE PORNOGRAPHY
SO AS TO MAKE IT UNAVAILABLE TO NONADULTS, A REGULATION WHICH MR.
JUSTICE BRENNAN FINDS CONSTITUTIONALLY PERMISSIBLE, HAS ALL THE
ELEMENTS OF "CENSORSHIP" FOR ADULTS; INDEED EVEN MORE RIGID ENFORCEMENT
TECHNIQUES MAY BE CALLED FOR WITH SUCH DICHOTOMY OF REGULATION.  SEE
INTERSTATE CIRCUIT, INC. V. DALLAS, 390 U.S., AT 690.  /17/  ONE CAN
CONCEDE THAT THE "SEXUAL REVOLUTION" OF RECENT YEARS MAY HAVE HAD
USEFUL BYPRODUCTS IN STRIKING LAYERS OF PRUDERY FROM A SUBJECT LONG
IRRATIONALLY KEPT FROM NEEDED VENTILATION.  BUT IT DOES NOT FOLLOW THAT
NO REGULATION OF PATENTLY OFFENSIVE "HARD CORE" MATERIALS IS NEEDED OR
PERMISSIBLE; CIVILIZED PEOPLE DO NOT ALLOW UNREGULATED ACCESS TO HEROIN
BECAUSE IT IS A DERIVATIVE OF MEDICINAL MORPHINE. 

IN SUM, WE (A) REAFFIRM THE ROTH HOLDING THAT OBSCENE MATERIAL IS
NOT PROTECTED BY THE FIRST AMENDMENT; (B) HOLD THAT SUCH MATERIAL CAN
BE REGULATED BY THE STATES, SUBJECT TO THE SPECIFIC SAFEGUARDS
ENUNCIATED ABOVE, WITHOUT A SHOWING THAT THE MATERIAL IS "UTTERLY
WITHOUT REDEEMING SOCIAL VALUE"; AND (C) HOLD THAT OBSCENITY IS TO BE
DETERMINED BY APPLYING "CONTEMPORARY COMMUNITY STANDARDS," SEE KOIS V.
WISCONSIN, SUPRA, AT 230, AND ROTH V. UNITED STATES, SUPRA, AT 489, NOT
"NATIONAL STANDARDS."     [[HC37'(ORIGINAL DOCUMENT PAGE 37)'  THE
JUDGMENT OF THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT, ORANGE
COUNTY, CALIFORNIA, IS VACATED AND THE CASE REMANDED TO THAT COURT FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE FIRST AMENDMENT STANDARDS
ESTABLISHED BY THIS OPINION.  SEE UNITED STATES V. 12 200-FT. REELS OF
FILM, POST, AT 130 N. 7. 

              VACATED AND REMANDED. 

/1/  AT THE TIME OF THE COMMISSION OF THE ALLEGED OFFENSE, WHICH WAS
PRIOR TO JUNE 25, 1969, ^ 311.2 (A) AND ^ 311 OF THE CALIFORNIA PENAL
CODE READ IN RELEVANT PART:  "^311.2 SENDING OR BRINGING INTO STATE FOR
SALE OR DISTRIBUTION, PRINTING, EXHIBITING, DISTRIBUTING OR POSSESSING
WITHIN STATE 

"(A) EVERY PERSON WHO KNOWINGLY:  SENDS OR CAUSES TO BE SENT, OR
BRINGS OR CAUSES TO BE BROUGHT, INTO THIS STATE FOR SALE OR
DISTRIBUTION, OR IN THIS STATE PREPARES, PUBLISHES, PRINTS, EXHIBITS,
DISTRIBUTES, OR OFFERS TO DISTRIBUTE, OR HAS IN HIS POSSESSION WITH
INTENT TO DISTRIBUTE OR TO EXHIBIT OR OFFER TO DISTRIBUTE, ANY OBSCENE
MATTER IS GUILTY OF A MISDEMEANOR.  . . ."  "SEC. 311.  DEFINITIONS 

"AS USED IN THIS CHAPTER: 

"(A) 'OBSCENE' MEANS THAT TO THE AVERAGE PERSON, APPLYING
CONTEMPORARY STANDARDS, THE PREDOMINANT APPEAL OF THE MATTER, TAKEN AS
A WHOLE, IS TO PRURIENT INTEREST, I. E., A SHAMEFUL OR MORBID INTEREST
IN NUDITY, SEX, OR EXCRETION, WHICH GOES SUBSTANTIALLY BEYOND CUSTOMARY
LIMITS OF CANDOR IN DESCRIPTION OR REPRESENTATION OF SUCH MATTERS AND
IS MATTER WHICH IS UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE. 

"(B) 'MATTER' MEANS ANY BOOK, MAGAZINE, NEWSPAPER, OR OTHER PRINTED
OR WRITTEN MATERIAL OR ANY PICTURE, DRAWING, PHOTOGRAPH, MOTION
PICTURE, OR OTHER PICTORIAL REPRESENTATION OR ANY STATUE OR OTHER
FIGURE, OR ANY RECORDING, TRANSCRIPTION OR MECHANICAL, CHEMICAL OR
ELECTRICAL REPRODUCTION OR ANY OTHER ARTICLES, EQUIPMENT, MACHINES OR
MATERIALS. 

"(C) 'PERSON' MEANS ANY INDIVIDUAL, PARTNERSHIP, FIRM, ASSOCIATION,
CORPORATION, OR OTHER LEGAL ENTITY. 

"(D) 'DISTRIBUTE' MEANS TO TRANSFER POSSESSION OF, WHETHER WITH OR
WITHOUT CONSIDERATION. 

"(E) 'KNOWINGLY' MEANS HAVING KNOWLEDGE THAT THE MATTER IS
OBSCENE." 

JUNE 25, 1969, TO READ AS FOLLOWS: 

"(E) 'KNOWINGLY' MEANS BEING AWARE OF THE CHARACTER OF THE MATTER." 
CAL. AMENDED STAT. 1969, C. 249, ^ 1, P. 598.  DESPITE APPELLANT'S
CONTENTIONS TO THE CONTRARY, THE RECORD INDICATES THAT THE NEW ^ 311
(E) WAS NOT APPLIED EX POST FACTO TO HIS CASE, BUT ONLY THE OLD ^ 311
(E) AS CONSTRUED BY STATE DECISIONS PRIOR TO THE COMMISSION OF THE
ALLEGED OFFENSE.  SEE PEOPLE V. PINKUS, 256 CAL. APP. 2D 941, 948 -
950, CAL. RPTR.  680, 685 - 686 (APP. DEPT., SUPERIOR CT., LOS ANGELES,
1967); PEOPLE V. CAMPISE, 242 CAL. APP. 2D 905, 914, 51 CAL. RPTR. 
815, 821 (APP. DEPT., SUPERIOR CT., SAN DIEGO, 1966).  CF. BOUIE V.
CITY OF COLUMBIA, 378 U.S. 347 (1964).  NOR DID SEC. 311.2, SUPRA, AS
APPLIED, CREATE ANY "DIRECT, IMMEDIATE BURDEN ON THE PERFORMANCE OF THE
POSTAL FUNCTIONS," OR INFRINGE ON CONGRESSIONAL COMMERCE POWERS UNDER
ART. 1, SEC. 8, CL. 3.  ROTH V. UNITED STATES, 354 U.S. 476, 494
(1957), QUOTING RAILWAY MAIL ASSN. V. CORSI, 326 U.S. 88, 96 (1945). 
SEE ALSO MISHKIN V. NEW YORK, 383 U.S. 502, 506 (1966); SMITH V.
CALIFORNIA, 361 U.S. 147, 150 - 152 (1959). 

/2/  THIS COURT HAS DEFINED "OBSCENE MATERIAL" AS "MATERIAL WHICH
DEALS WITH SEX IN A MANNER APPEALING TO PRURIENT INTEREST," ROTH V.
UNITED STATES, SUPRA, AT 487, BUT THE ROTH DEFINITION DOES NOT REFLECT
THE PRECISE MEANING OF "OBSCENE" AS TRADITIONALLY USED IN THE ENGLISH
LANGUAGE.  DERIVED FROM THE LATIN OBSCAENUS, OB, TO, PLUS CAENUM,
FILTH, "OBSCENE" IS DEFINED IN THE WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY (UNABRIDGED 1969) AS "1A:  DISGUSTING TO THE SENSES . . . B:
GROSSLY REPUGNANT TO THE GENERALLY ACCEPTED NOTIONS OF WHAT IS
APPROPRIATE . . .2:  OFFENSIVE OR REVOLTING AS COUNTERING OR VIOLATING
SOME IDEAL OR PRINCIPLE."  THE OXFORD ENGLISH DICTIONARY (1933 ED.) 
GIVES A SIMILAR DEFINITION, "(OFFENSIVE TO THE SENSES, OR TO TASTE OR
REFINEMENT; DISGUSTING, REPULSIVE, FILTHY, FOUL, ABOMINABLE,
LOATHSOME." 

THE MATERIAL WE ARE DISCUSSING IN THIS CASE IS MORE ACCURATELY
DEFINED AS "PORNOGRAPHY" OR "PORNOGRAPHIC MATERIAL."  "PORNOGRAPHY"
DERIVES FROM THE GREEK (PORNE, HARLOT, AND GRAPHOS, WRITING).  THE WORD
NOW MEANS "1:  A DESCRIPTION OF PROSTITUTES OR PROSTITUTION 2:  A
DEPICTION (AS IN WRITING OR PAINTING) OF LICENTIOUSNESS OR LEWDNESS: A
PORTRAYAL OF EROTIC BEHAVIOR DESIGNED TO CAUSE SEXUAL EXCITEMENT." 
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, SUPRA.  PORNOGRAPHIC
MATERIAL WHICH IS OBSCENE FORMS A SUB-GROUP OF ALL "OBSCENE"
EXPRESSION, BUT NOT THE WHOLE, AT LEAST AS THE WORD "OBSCENE" IS NOW
USED IN OUR LANGUAGE.  WE NOTE, THEREFORE, THAT THE WORDS "OBSCENE
MATERIAL", AS USED IN THIS CASE, HAVE A SPECIFIC JUDICIAL MEANING WHICH
DERIVES FROM THE ROTH CASE, I. E., OBSCENE MATERIAL "WHICH DEALS WITH
SEX."  ROTH, SUPRA, AT 487.  SEE ALSO ALI MODEL PENAL CODE ^ 251.4 (1)
"OBSCENE DEFINED."  (OFFICIAL DRAFT 1962.) 

/3/  IN THE ABSENCE OF A MAJORITY VIEW, THIS COURT WAS COMPELLED TO
EMBARK ON THE PRACTICE OF SUMMARILY REVERSING CONVICTIONS FOR THE
DISSEMINATION OF MATERIALS THAT AT LEAST FIVE MEMBERS OF THE COURT,
APPLYING THEIR SEPARATE TESTS, FOUND TO BE PROTECTED BY THE FIRST
AMENDMENT.  REDRUP V. NEW YORK, 386 U.S. 767 (1967).  THIRTY-ONE CASES
HAVE BEEN DECIDED IN THIS MANNER.  BEYOND THE NECESSITY OF
CIRCUMSTANCES, HOWEVER, NO JUSTIFICATION HAS EVER BEEN OFFERED IN
SUPPORT OF THE REDRUP "POLICY."  SEE WALKER V. OHIO, 398 U.S. 434 - 435
(1970) (DISSENTING OPINIONS OF BURGER, C. J., AND HARLAN, J.).  THE
REDRUP PROCEDURE HAS CAST US IN THE ROLE OF AN UNREVIEWABLE BOARD OF
CENSORSHIP FOR THE 50 STATES, SUBJECTIVELY JUDGING EACH PIECE OF
MATERIAL BROUGHT BEFORE US. 

/4/  SEE THE DISSENTING OPINION OF MR. JUSTICE BRENNAN IN PARIS
ADULT THREATRE I V. SLATON, POST, P. 73. 

/5/  AS MR. CHIEF JUSTICE WARREN STATED, DISSENTING, IN JACOBELLIS
V. OHIO, 378 U.S. 184, 200 (1964): 

"FOR ALL THE SOUND AND FURY THAT THE ROTH TEST HAS GENERATED, IT HAS
NOT BEEN PROVED UNSOUND, AND I BELIEVE THAT WE SHOULD TRY TO LIVE WITH
IT--AT LEAST UNTIL A MORE SATISFACTORY DEFINITION IS EVOLVED.  NO
GOVERNMENT--BE IT FEDERAL, STATE, OR LOCAL--SHOULD BE FORCED TO CHOOSE
BETWEEN REPRESSING ALL MATERIAL, INCLUDING THAT WITHIN THE REALM OF
DECENCY, AND ALLOWING UNRESTRAINED LICENSE TO PUBLISH ANY MATERIAL, NO
MATTER HOW VILE.  THERE MUST BE A RULE OF REASON IN THIS AS IN OTHER
AREAS OF THE LAW, AND WE HAVE ATTEMPTED IN THE ROTH CASE TO PROVIDE
SUCH A RULE." 

/6/  SEE, E. G., OREGON LAWS 1971, C. 743, ART. 29, ^^ 255 - 262,
AND HAWAII PENAL CODE, TIT. 37, ^^ 1210 - 1216, 1972 HAWAII SESSION
LAWS, ACT 9, C. 12, PT. II, PP. 126 - 129, AS EXAMPLES OF STATE LAWS
DIRECTED AT DEPICTION OF DEFINED PHYSICAL CONDUCT, AS OPPOSED TO
EXPRESSION.  OTHER STATE FORMULATIONS COULD BE EQUALLY VALID IN THIS
RESPECT.  IN GIVING THE OREGON AND HAWAII STATUTES AS EXAMPLES, WE DO
NOT WISH TO BE UNDERSTOOD AS APPROVING OF THEM IN ALL OTHER RESPECTS
NOR AS ESTABLISHING THEIR LIMITS AS THE EXTENT OF STATE POWER. 

WE DO NOT HOLD, AS MR. JUSTICE BRENNAN INTIMATES, THAT ALL STATES
OTHER THAN OREGON MUST NOW ENACT NEW OBSCENITY STATUTES.  OTHER
EXISTING STATE STATUTES, AS CONSTRUED HERETOFORE OR HEREAFTER, MAY WELL
BE ADEQUATE.  SEE UNITED STATES V. 12 200^FT REELS OF FILM, POST, AT
130 N. 7. 

/7/  "A QUOTATION FROM VOLTAIRE IN THE FLYLEAF OF A BOOK WILL NOT
CONSTITUTIONALLY REDEEM AN OTHERWISE OBSCENE PUBLICATION . . . ."  KOIS
V. WISCONSIN, 408 U.S. 229, 231 (1972).  SEE MEMOIRS V. MASSACHUSETTS,
383 U.S. 413, 461 (1966) (WHITE, J., DISSENTING).  WE ALSO REJECT, AS A
CONSTITUTIONAL STANDARD, THE AMBIGUOUS CONCEPT OF "SOCIAL IMPORTANCE." 
SEE ID., AT 462 (WHITE, J., DISSENTING.) 

/8/  ALTHOUGH WE ARE NOT PRESENTED HERE WITH THE PROBLEM OF
REGULATING LEWD PUBLIC CONDUCT ITSELF, THE STATES HAVE GREATER POWER TO
REGULATE NONVERBAL, PHYSICAL CONDUCT THAT TO SUPPRESS DEPICTIONS OR
DESCRIPTIONS OF THE SAME BEHAVIOR.  IN UNITED STATES V. O'BRIEN, 391
U.S. 367, 377 (1968), A CASE NOT DEALING WITH OBSCENITY, THE COURT HELD
A STATE REGULATION OF CONDUCT WHICH ITSELF EMBODIED BOTH SPEECH AND
NONSPEECH ELEMENTS TO BE "SUFFICIENTLY JUSTIFIED IF . . . IT FURTHERS
AN IMPORTANT OR SUBSTANTIAL GOVERNMENTAL INTEREST; IF THE GOVERNMENTAL
INTEREST IS UNRELATED TO THE SUPPRESSION OF FREE EXPRESSION; AND IF THE
INCIDENTAL RESTRICTION ON ALLEGED FIRST AMENDMENT FREEDOMS IS NO
GREATER THAN IS ESSENTIAL TO THE FURTHERANCE OF THAT INTEREST."  SEE
CALIFORNIA V. LA RUE, 409 U.S. 109, 117 - 118 (1972). 

/9/  THE MERE FACT JURIES MAY REACH DIFFERENT CONCLUSIONS AS TO THE
SAME MATERIAL DOES NOT MEAN THAT CONSTITUTIONAL RIGHTS ARE ABRIDGED. 
AS THIS COURT OBSERVED IN ROTH V. UNITED STATES, 354 U.S., AT 492 N.
30, "IT IS COMMON EXPERIENCE THAT DIFFERENT JURIES MAY REACH DIFFERENT
RESULTS UNDER ANY CRIMINAL STATUTE.  THAT IS ONE OF THE CONSEQUENCES WE
ACCEPT UNDER OUR JURY SYSTEM.  CF. DUNLOP V. UNITED STATES, 165 U.C.
486, 499 - 500." 

/10/  AS MR. JUSTICE BRENNAN STATED FOR THE COURT IN ROTH V. UNITED
STATES, SUPRA, AT 491 - 492: 

"MANY DECISIONS HAVE RECOGNIZED THAT THESE TERMS OF OBSCENITY
STATUTES ARE NOT PRECISE.  (FOOTNOTE OMITTED.)  THIS COURT, HOWEVER,
HAS CONSISTENTLY HELD THAT LACK OF PRECISION IS NOT ITSELF OFFENSIVE TO
THE REQUIREMENTS OF DUE PROCESS.  ' . . . (THE CONSTITUTION DOES NOT
REQUIRE IMPOSSIBLE STANDARDS'; ALL THAT IS REQUIRED IS THAT THE
LANGUAGE 'CONVEYS SUFFICIENTLY DEFINITE WARNING AS TO THE PROSCRIBED
CONDUCT WHEN MEASURED BY COMMON UNDERSTANDING AND PRACTICES.  . . .' 
UNITED STATES V. PETRILLO, 332 U.S. 1, 7 - 8.  THESE WORDS, APPLIED
ACCORDING TO THE PROPER STANDARD FOR JUDGING OBSCENITY, ALREADY
DISCUSSED, GIVE ADEQUATE WARNING OF THE CONDUCT PROSCRIBED AND MARK ' .
. . BOUNDARIES SUFFICIENTLY DISTINCT FOR JUDGES AND JURIES FAIRLY TO
ADMINISTER THE LAW . . . . THAT THERE MAY BE MARGINAL CASES IN WHICH IT
IS DIFFICULT TO DETERMINE THE SIDE OF THE LINE ON WHICH A PARTICULAR
FACT SITUATION FALLS IS NO SUFFICIENT REASON TO HOLD THE LANGUAGE TOO
AMBIGUOUS TO DEFINE A CRIMINAL OFFENSE.  . . .'  ID., AT 7.  SEE ALSO
UNITED STATES V. HARRISS, 347 U.S. 612, 624, N. 15; BOYCE MOTOR LINES,
INC. V. UNITED STATES, 342 U.S. 337, 340; UNITED STATES V. RAGEN, 314
U.S. 513, 523 - 524; UNITED STATES V. WURZBACH, 280 U.S. 396; HYGRADE
PROVISION CO. V. SHERMAN, 266 U.S. 497; FOX V. WASHINGTON, 236 U.S.
273; NASH V. UNITED STATES, 229 U.S. 373." 

/11/  WE MUST NOTE, IN ADDITION, THAT ANY ASSUMPTION CONCERNING THE
RELATIVE BURDENS OF THE PAST AND THE PROBABLE BURDEN UNDER THE
STANDARDS NOW ADOPTED IS PURE SPECULATION. 

/12/  THE RECORD SIMPLY DOES NOT SUPPORT APPELLANT'S CONTENTION,
BELATEDLY RAISED ON APPEAL, THAT THE STATE'S EXPERT WAS UNQUALIFIED TO
GIVE EVIDENCE ON CALIFORNIA "COMMUNITY STANDARDS."  THE EXPERT, A
POLICE OFFICER WITH MANY YEARS OF SPECIALIZATION IN OBSCENITY OFFENSES,
HAD CONDUCTED AN EXTENSIVE STATEWIDE SURVEY AND HAD GIVEN EXPERT
EVIDENCE ON 26 OCCASSIONS IN THE YEAR PRIOR TO THIS TRIAL.  ALLOWING
SUCH EXPERT TESTIMONY WAS CERTAINLY NOT CONSTITUTIONAL ERROR.  CF.
UNITED STATES V. AUGENBLICK, 393 U.S. 348, 356 (1969). 

/13/  IN JACOBELLIS V. OHIO, 378 U.S. 184 (1964), TWO JUSTICES
ARGUED THAT APPLICATION OF "LOCAL" COMMUNITY STANDARDS WOULD RUN THE
RISK OF PREVENTING DISSEMINATION OF MATERIALS IN SOME PLACES BECAUSE
SELLERS WOULD BE UNWILLING TO RISK CRIMINAL CONVICTION BY TESTING
VARIATIONS IN STANDARDS FROM PLACE TO PLACE.  ID., AT 193 - 195
(OPINION OF BRENNAN, J., JOINED BY GOLDBERG, J.).  THE USE OF
"NATIONAL"  STANDARDS, HOWEVER, NECESSARILY IMPLIES THAT MATERIALS
FOUND TOLERABLE IN SOME PLACES, BUT NOT UNDER THE "NATIONAL" CRITERIA,
WILL NEVERTHELESS BE UNAVAILABLE WHERE THEY ARE ACCEPTABLE.  THUS, IN
TERMS OF DANGER TO FREE EXPRESSION, THE POTENTIAL FOR SUPPRESSION SEEMS
AT LEAST AS GREAT IN THE APPLICATION OF A SINGLE NATIONWIDE STANDARD AS
IN ALLOWING DISTRIBUTION IN ACCORDANCE WITH LOCAL TASTES, A POINT WHICH
MR. JUSTICE HARLAN OFTEN EMPHASIZED.  SEE ROTH V. UNITED STATES, 354
U.S., AT 506. 

APPELLANT ALSO ARGUES THAT ADHERENCE TO A "NATIONAL STANDARD" IS
NECESSARY "IN ORDER TO AVOID UNCONSCIONABLE BURDENS ON THE FREE FLOW OF
INTERSTATE COMMERCE."  AS NOTED SUPRA, AT 18 N. 1, THE APPLICATION OF
DOMESTIC STATE POLICE POWERS IN THIS CASE DID NOT INTRUDE ON ANY
CONGRESSIONAL POWERS UNDER ART. 1, ^ 8, CL. 3, FOR THERE IS NO
INDICATION THAT APPELLANT'S MATERIALS WERE EVER DISTRIBUTED
INTERSTATE.  APPELLANT'S ARGUMENT WOULD APPEAR WITHOUT SUBSTANCE IN ANY
EVENT.  OBSCENE MATERIAL MAY BE VALIDLY REGULATED BY A STATE IN THE
EXERCISE OF ITS TRADITIONAL LOCAL POWER TO PROTECT THE GENERAL WELFARE
OF ITS POPULATION DESPITE SOME POSSIBLE INCIDENTAL EFFECT ON THE FLOW
OF SUCH MATERIALS ACROSS STATE LINES.  SEE, E. G., HEAD V. NEW MEXICO
BOARD, 374 U.S. 424 (1963); HURON PORTLAND CEMENT CO. V. DETROIT, 362
U.S. 440 (1960); BREARD V. ALEXANDRIA, 341 U.S. 622 (1951); H. P. HOOD
& SONS V. DU MOND, 336 U.S. 525 (1949); SOUTHERN PACIFIC CO. V.
ARIZONA, 325 U.S. 761 (1945); BALDWIN V. G. A. F. SEELIG, INC., 294
U.S. 511 (1935); SLIGH V. KIRKWOOD 237 U.S. 52 (1915).     /14/
APPELLANT'S JURISDICTIONAL STATEMENT CONTENDS THAT HE WAS SUBJECTED TO
"DOUBLE JEOPARDY" BECAUSE A LOS ANGELES COUNTY TRIAL JUDGE DISMISSED,
BEFORE TRIAL, A PRIOR PROSECUTION BASED ON THE SAME BROCHURES, BUT
APPARENTLY ALLEGING EXPOSURES AT A DIFFERENT TIME IN A DIFFERENT
SETTING.  APPELLANT ARGUES THAT ONCE MATERIAL HAS BEEN FOUND NOT TO BE
OBSCENE IN ONE PROCEEDING, THE STATE IS "COLLATERALLY ESTOPPED" FROM
EVER ALLEGING IT TO BE OBSCENE IN A DIFFERENT PROCEEDING.  IT IS NOT
CLEAR FROM THE RECORD THAT APPELLANT PROPERLY RAISED THIS ISSUE, BETTER
REGARDED AS A QUESTION OF PROCEDURAL DUE PROCESS THAN A "DOUBLE
JEOPARDY" CLAIM, IN THE STATE COURTS BELOW.  APPELLANT FAILED TO
ADDRESS ANY PORTION OF HIS BRIEF ON THE MERITS TO THIS ISSUE, AND
APPELLEE CONTENDS THAT THE QUESTION WAS WAIVED UNDER CALIFORNIA LAW
BECAUSE IT WAS IMPROPERLY PLEADED AT TRIAL.  NOR IS IT TOTALLY CLEAR
FROM THE RECORD BEFORE US WHAT COLLATERAL EFFECT THE PRETRIAL DISMISSAL
MIGHT HAVE UNDER STATE LAW.  THE DISMISSAL WAS BASED, AT LEAST IN PART,
ON A FAILURE OF THE PROSECUTION TO PRESENT AFFIRMATIVE EVIDENCE
REQUIRED BY STATE LAW, EVIDENCE WHICH WAS APPARENTLY PRESENTED IN THIS
CASE.  APPELLANT'S CONTENTION, THEREFORE, IS BEST LEFT TO THE
CALIFORNIA COURTS FOR FURTHER CONSIDERATION ON REMAND.  THE ISSUE IS
NOT, IN ANY EVENT, A PROPER SUBJECT FOR APPEAL.  SEE MISHKIN V. NEW
YORK, 383 U.S. 502, 512 - 514 (1966). 

/15/  IN THE APT WORDS OF MR. CHIEF JUSTICE WARREN, APPELLANT IN
THIS CASE WAS "PLAINLY ENGAGED IN THE COMMERCIAL EXPLOITATION OF THE
MORBID AND SHAMEFUL CRAVING FOR MATERIALS WITH PRURIENT EFFECT.  I
BELIEVE THAT THE STATE AND FEDERAL GOVERNMENTS CAN CONSTITUTIONALLY
PUNISH SUCH CONDUCT.  THAT IS ALL THAT THESE CASES PRESENT TO US, AND
THAT IS ALL WE NEED TO DECIDE."  ROTH V. UNITED STATES, SUPRA, AT 496
(CONCURRING OPINION). 

/16/  SEE 2 V. PARRINGTON, MAIN CURRENTS IN AMERICAN THOUGHT IX ET
SEQ. (1930).  AS TO THE LATTER PART OF THE 19TH CENTURY, PARRINGTON
OBSERVED "A NEW AGE HAD COME AND OTHER DREAMS--THE AGE AND THE DREAMS
OF A MIDDLE-CLASS SOVEREIGNTY . . . . FROM THE CRUDE AND VAST
ROMANTICISMS OF THAT VIGOROUS SOVEREIGNTY EMERGED EVENTUALLY A SPIRIT
OF REALISTIC CRITICISM, SEEKING TO EVALUATE THE WORTH OF THIS NEW
AMERICA, AND DISCOVER IF POSSIBLE OTHER PHILISOPHIES TO TAKE THE PLACE
OF THOSE WHICH HAD GONE DOWN IN THE FIERCE BATTLES OF THE CIVIL WAR." 
ID., AT 474.  CF. 2 S. MORISON, H. COMMAGER & W. LEUCHTENBURG, THE
GROWTH OF THE AMERICAN REPUBLIC 197 - 233 (6TH ED. 1969); PATHS OF
AMERICAN THOUGHT 123 - 126, 203 - 290 (A. SCHLESINGER & M. WHITE ED.
1963) (ARTICLES OF FLEMING, LERNER, MORTON & LUCIA WHITE, E. ROSTOW,
SAMUELSON, KAZIN, HOFSTADTER); AND H. WISH, SOCIETY AND THOUGHT IN
MODERN AMERICA 337 - 386 (1952). 

/17/  "(WE HAVE INDICATED . . . THAT BECAUSE OF ITS STRONG AND
ABIDING INTEREST IN YOUTH, A STATE MAY REGULATE THE DISSEMINATION TO
JUVENILES OF, AND THEIR ACCESS TO, MATERIAL OBJECTIONABLE AS TO THEM,
BUT WHICH A STATE CLEARLY COULD NOT REGULATE AS TO ADULTS.  GINSBERG V.
NEW YORK, . . . (390 U.S. 629 (1968))."  INTERSTATE CIRCUIT, INC. V.
DALLAS, 390 U.S. 676, 690 (1968) (FOOTNOTE OMITTED). 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING. 

        I 

TODAY WE LEAVE OPEN THE WAY FOR CALIFORNIA /1/  TO SEND A MAN TO
PRISON FOR DISTRIBUTING BROCHURES THAT ADVERTISE BOOKS AND A MOVIE
UNDER FRESHLY WRITTEN STANDARDS DEFINING OBSCENITY WHICH UNTIL TODAY'S
DECISION WERE NEVER THE PART OF ANY LAW. 

THE COURT HAS WORKED HARD TO DEFINE OBSCENITY AND CONCEDEDLY HAS
FAILED.  IN ROTH V. UNITED STATES, 354 U.S. 476, IT RULED THAT
"(OBSCENE MATERIAL IS MATERIAL WHICH DEALS WITH SEX IN A MANNER
APPEALING TO PRURIENT INTEREST."  ID., AT 487.  OBSCENITY, IT WAS SAID,
WAS REJECTED BY THE FIRST AMENDMENT BECAUSE IT IS "UTTERLY WITHOUT
REDEEMING SOCIAL IMPORTANCE." 

[[HC38'(ORIGINAL DOCUMENT PAGE 38)'  ID., AT 484.  THE PRESENCE OF
"PRURIENT INTEREST" WAS TO BE DETERMINED BY "CONTEMPORARY COMMUNITY
STANDARDS."  ID., AT 489.  THAT TEST, IT HAS BEEN SAID, COULD NOT BE
DETERMINED BY ONE STANDARD HERE AND ANOTHER STANDARD THERE, JACOBELLIS
V. OHIO, 378 U.S. 184, 194, BUT "ON THE BASIS OF A NATIONAL STANDARD." 
ID., AT 195.  MY BROTHER STEWART IN JACOBELLIS COMMENTED THAT THE
DIFFICULTY OF THE COURT IN GIVING CONTENT TO OBSCENITY WAS THAT IT WAS
"FACED WITH THE TASK OF TRYING TO DEFINE WHAT MAY BE INDEFINABLE." 
ID., AT 197. 

IN MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 418, THE ROTH TEST WAS
ELABORATED TO READ AS FOLLOWS:  "(THREE ELEMENTS MUST COALESCE:  IT
MUST BE ESTABLISHED THAT (A) THE DOMINANT THEME OF THE MATERIAL TAKEN
AS A WHOLE APPEALS TO A PRURIENT INTEREST IN SEX; AND (B) THE MATERIAL
IS PATENTLY OFFENSIVE BECAUSE IT AFFRONTS CONTEMPORARY COMMUNITY
STANDARDS RELATING TO THE DESCRIPTION OR REPRESENTATION OF SEXUAL
MATTERS; AND (C) THE MATERIAL IS UTTERLY WITHOUT REDEEMING SOCIAL
VALUE." 

IN GINZBURG V. UNITED STATES, 383 U.S. 463, A PUBLISHER WAS SENT TO
PRISON, NOT FOR THE KIND OF BOOKS AND PERIODICALS HE SOLD, BUT FOR THE
MANNER IN WHICH THE PUBLICATIONS WERE ADVERTISED.  THE "LEER OF THE
SENSUALIST" WAS SAID TO PERMEATE THE ADVERTISEMENTS.  ID., AT 468.  THE
COURT SAID, "WHERE THE PURVEYOR'S SOLE EMPHASIS IS ON THE SEXUALLY
PROVOCATIVE ASPECTS OF HIS PUBLICATIONS, THAT FACT MAY BE DECISIVE IN
THE DETERMINATION OF OBSCENITY."  ID., AT 470.  AS MR. JUSTICE BLACK
SAID IN DISSENT, ".  . . GINSBURG . . . IS NOW FINALLY AND
AUTHORITATIVELY CONDEMNED TO SERVE FIVE YEARS IN PRISON FOR
DISTRIBUTING PRINTED MATTER ABOUT SEX WHICH NEITHER GINZBURG NOR ANYONE
ELSE COULD POSSIBLY HAVE KNOWN TO BE CRIMINAL."  ID., AT 476.  THAT
OBSERVATION BY MR. JUSTICE BLACK IS UNDERLINED BY THE FACT THAT THE
GINZBURG DECISION WAS FIVE TO FOUR. 

A FURTHER REFINEMENT WAS ADDED BY GINSBERG V. NEW YORK, 390 U.S.
629, 641, WHERE THE COURT HELD THAT "IT WAS NOT IRRATIONAL FOR THE
LEGISLATURE TO FIND THAT EXPOSURE TO MATERIAL CONDEMNED BY THE STATUTE
IS HARMFUL TO MINORS." 

[[HC39'(ORIGINAL DOCUMENT PAGE 39)' 

BUT EVEN THOSE MEMBERS OF THIS COURT WHO HAD CREATED THE NEW AND
CHANGING STANDARDS OF "OBSCENITY" COULD NOT AGREE ON THEIR
APPLICATION.  AND SO WE ADOPTED A PER CURIAM TREATMENT OF SO-CALLED
OBSCENE PUBLICATIONS THAT SEEMED TO PASS CONSTITUTIONAL MUSTER UNDER
THE SEVERAL CONSTITUTIONAL TESTS WHICH HAD BEEN FORMULATED.  SEE REDRUP
V. NEW YORK, 386 U.S. 767.  SOME CONDEMN IT IF ITS "DOMINANT TENDENCY
MIGHT BE TO 'DEPRAVE OR CORRUPT' A READER."  /2/  OTHERS LOOK NOT TO
THE CONTENT OF THE BOOK BUT TO WHETHER IT IS ADVERTISED "'TO APPEAL TO
THE EROTIC INTERESTS OF CUSTOMERS.'"  /3/  SOME CONDEMN ONLY "HARD-CORD
PORNOGRAPHY"; BUT EVEN THEN A TRUE DEFINITION IS LACKING.  IT HAS
INDEED BEEN SAID OF THAT DEFINITION, "I COULD NEVER SUCCEED IN
(DEFINING IT) INTELLIGIBLY," BUT "I KNOW IT WHEN I SEE IT."  /4/ 

TODAY WE WOULD ADD A NEW THREE-PRONGED TEST:  "(A) WHETHER "THE
AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS' WOULD FIND
THAT THE WORK, TAKEN AS A WHOLE, APPEALS TO THE PRURIENT INTERESTS, . .
. (B) WHETHER THE WORK DEPICTS OR DESCRIBES, IN A PATENTLY OFFENSIVE
WAY, SEXUAL CONDUCT SPECIFICALLY DEFINED BY THE APPLICABLE STATE LAW,
AND (C) WHETHER THE WORK, TAKEN AS A WHOLE, LACKS SERIOUS LITERARY,
ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE." 

THOSE ARE THE STANDARDS WE OURSELVES HAVE WRITTEN INTO THE
CONSTITUTION.  /5/  YET HOW UNDER THESE VAGUE TESTS CAN WE SUSTAIN
CONVICTIONS FOR THE SALE OF AN ARTICLE PRIOR TO THE TIME WHEN SOME
COURT HAS DECLARED IT TO BE OBSCENE? 

[[HC40'(ORIGINAL DOCUMENT PAGE 40)' 

TODAY THE COURT RETREATS FROM THE EARLIER FORMULATIONS OF THE
CONSTITUTIONAL TEST AND UNDERTAKES TO MAKE NEW DEFINITIONS.  THIS
EFFORT, LIKE THE EARLIER ONES, IS EARNEST AND WELL INTENTIONED.  THE
DIFFICULTY IS THAT WE DO NOT DEAL WITH CONSTITUTIONAL TERMS, SINCE
"OBSCENITY" IS NOT MENTIONED IN THE CONSTITUTION OR BILL OF RIGHTS. 
AND THE FIRST AMENDMENT MAKES NO SUCH EXCEPTION FROM "THE PRESS" WHICH
IT UNDERTAKES TO PROTECT NOR, AS I HAVE SAID ON OTHER OCCASIONS, IS AN
EXCEPTION NECESSARILY IMPLIED FOR THERE WAS NO RECOGNIZED EXCEPTION TO
THE FREE PRESS AT THE TIME THE BILL OF RIGHTS WAS ADOPTED WHICH TREATED
"OBSCENE" PUBLICATIONS DIFFERENTLY FROM OTHER TYPES OF PAPERS,
MAGAZINES, AND BOOKS.  SO THERE ARE NO CONSTITUTIONAL GUIDELINES FOR
DECIDING WHAT IS AND WHAT IS NOT "OBSCENE."  THE COURT IS AT LARGE
BECAUSE WE DEAL WITH TASTES AND STANDARDS OF LITERATURE.  WHAT SHOCKS
ME MAY BE SUSTENANCE FOR MY NEIGHBOR. 

[[HC41'(ORIGINAL DOCUMENT PAGE 41)'  WHAT CAUSES ONE PERSON TO BOIL
UP IN RAGE OVER ONE PAMPHLET OR MOVIE MAY REFLECT ONLY HIS NEUROSIS,
NOT SHARED BY OTHERS.  WE DEAL HERE WITH A REGIME OF CENSORSHIP WHICH,
IF ADOPTED, SHOULD BE DONE BY CONSTITUTIONAL AMENDMENT AFTER FULL
DEBATE BY THE PEOPLE. 

OBSCENITY CASES USUALLY GENERATE TREMENDOUS EMOTIONAL OUTBURSTS. 
THEY HAVE NO BUSINESS BEING IN THE COURTS.  IF A CONSTITUTIONAL
AMENDMENT AUTHORIZED CENSORSHIP, THE CENSOR WOULD PROBABLY BE AN
ADMINISTRATIVE AGENCY.  THEN CRIMINAL PROSECUTIONS COULD FOLLOW AS, IF,
AND WHEN PUBLISHERS DEFIED THE CENSOR AND SOLD THEIR LITERATURE.  UNDER
THAT REGIME A PUBLISHER WOULD KNOW WHEN HE WAS ON DANGEROUS GROUND. 
UNDER THE PRESENT REGIME--WHETHER THE OLD STANDARDS OR THE NEW ONES ARE
USED--THE CRIMINAL LAW BECOMES A TRAP.  A BRAND NEW TEST WOULD PUT A
PUBLISHER BEHIND BARS UNDER A NEW LAW IMPROVISED BY THE COURTS AFTER
THE PUBLICATION.  THAT WAS DONE IN GINZBURG AND HAS ALL THE EVILS OF AN
EX POST FACTO LAW. 

MY CONTENTION IS THAT UNTIL A CIVIL PROCEEDING HAS PLACED A TRACT
BEYOND THE PALE, NO CRIMINAL PROSECUTION SHOULD BE SUSTAINED.  FOR NO
MORE VIVID ILLUSTRATION OF VAGUE AND UNCERTAIN LAWS COULD BE DESIGNED
THAT THOSE WE HAVE FASHIONED.  AS MR. JUSTICE HARLAN HAS SAID: 

     "THE UPSHOT OF ALL THIS DIVERGENCE IN VIEWPOINT IS THAT ANYONE

  WHO UNDERTAKES TO EXAMINE THE COURT'S DECISIONS SINCE ROTH WHICH

  HAVE HELD PARTICULAR MATERIAL OBSCENE OR NOT OBSCENE WOULD FIND

  HIMSELF IN UTTER BEWILDERMENT."  INTERSTATE CIRCUIT, INC. V.

  DALLAS, 390 U.S. 676, 707. 

IN BOUIE V. CITY OF COLUMBIA, 378 U.S. 347, WE UPSET A CONVICTION
FOR REMAINING ON PROPERTY AFTER BEING ASKED TO LEAVE, WHILE THE ONLY
UNLAWFUL ACT CHARGED BY THE STATUTE WAS ENTERING.  WE HELD THAT THE
DEFENDANTS HAD RECEIVED NO "FAIR WARNING, AT THE TIME OF THEIR CONDUCT"
WHILE ON THE PROPERTY "THAT THE ACT FOR WHICH THEY NOW STAND CONVICTED
WAS RENDERED CRIMINAL" BY THE STATE STATUTE. 

[[HC42'(ORIGINAL DOCUMENT PAGE 42)'  ID., AT 355.  THE SAME
REQUIREMENT OF "FAIR WARNING" IS DUE HERE, AS MUCH AS IN BOUIE.  THE
LATTER INVOLVED RACIAL DISCRIMINATION; THE PRESENT CASE INVOLVES RIGHTS
EARNESTLY URGED AS BEING PROTECTED BY THE FIRST AMENDMENT.  IN ANY CASE
-CERTAINLY WHEN CONSTITUTIONAL RIGHTS ARE CONCERNED--WE SHOULD NOT
ALLOW MEN TO GO TO PRISON OR BE FINED WHEN THEY HAD NO "FAIR WARNING"
THAT WHAT THEY DID WAS CRIMINAL CONDUCT. 

        II 

IF A SPECIFIC BOOK, PLAY, PAPER, OR MOTION PICTURE HAS IN A CIVIL
PROCEEDING BEEN CONDEMNED AS OBSCENE AND REVIEW OF THAT FINDING HAS
BEEN COMPLETED, AND THEREAFTER A PERSON PUBLISHES, SHOWS, OR DISPLAYS
THAT PARTICULAR BOOK OR FILM, THEN A VAGUE LAW HAS BEEN MADE SPECIFIC. 
THERE WOULD REMAIN THE UNDERLYING QUESTION WHETHER THE FIRST AMENDMENT
ALLOWS AN IMPLIED EXCEPTION IN THE CASE OF OBSCENITY.  I DO NOT THINK
IT DOES /6/  AND MY VIEWS ON THE ISSUE HAVE BEEN STATED OVER AND OVER
AGAIN.  /7/ 

[[HC43'(ORIGINAL DOCUMENT PAGE 43)'  BUT AT LEAST A CRIMINAL
PROSECUTION BROUGHT AT THAT JUNCTURE WOULD NOT VIOLATE THE TIME-HONORED
VOID-FOR-VAGUENESS TEST.  /8/ 

NO SUCH PROTECTIVE PROCEDURE HAS BEEN DESIGNED BY CALIFORNIA IN THIS
CASE.  OBSCENITY--WHICH EVEN WE CANNOT DEFINE WITH PRECISION--IS A
HODGE-PODGE.  TO SEND MEN TO JAIL FOR VIOLATING STANDARDS THEY CANNOT
UNDERSTAND, CONSTRUE, AND APPLY IS A MONSTROUS THING TO DO IN A NATION
DEDICATED TO FAIR TRIALS AND DUE PROCESS. 

[[HC44'(ORIGINAL DOCUMENT PAGE 44)'

  III 

WHILE THE RIGHT TO KNOW IS THE COROLLARY OF THE RIGHT TO SPEAK OR
PUBLISH, NO ONE CAN BE FORCED BY GOVERNMENT TO LISTEN TO DISCLOSURE
THAT HE FINDS OFFENSIVE.  THAT WAS THE BASIS OF MY DISSENT IN PUBLIC
UTILITIES COMM'N V. POLLAK, 343 U.S. 451, 467 (1952), WHERE I PROTESTED
AGAINST MAKING A STREETCAR AUDIENCE A "CAPTIVE"  AUDIENCE.  THERE IS NO
"CAPTIVE AUDIENCE" PROBLEM IN THESE OBSCENITY CASES.  NO ONE IS BEING
COMPELLED TO LOOK OR TO LISTEN.  THOSE WHO ENTER NEWS STANDS OR
BOOKSTALLS MAY BE OFFENDED BY WHAT THEY SEE.  BUT THEY ARE NOT
COMPELLED BY THE STATE TO FREQUENT THOSE PLACES; AND IT IS ONLY STATE
OR GOVERNMENTAL ACTION AGAINST WHICH THE FIRST AMENDMENT, APPLICABLE TO
THE STATES BY VIRTUE OF THE FOURTEENTH, RAISES A BAN. 

THE IDEA THAT THE FIRST AMENDMENT PERMITS GOVERNMENT TO BAN
PUBLICATIONS THAT ARE "OFFENSIVE" TO SOME PEOPLE PUTS AN OMINOUS GLOSS
ON FREEDOM OF THE PRESS.  THAT TEST WOULD MAKE IT POSSIBLE TO BAN ANY
PAPER OR ANY JOURNAL OR MAGAZINE IN SOME BENIGHTED PLACE.  THE FIRST
AMENDMENT WAS DESIGNED "TO INVITE DISPUTE," TO INDUCE "A CONDITION OF
UNREST," TO "CREATE DISSATISFACTION WITH CONDITIONS AS THEY ARE,"  AND
EVEN TO STIR "PEOPLE TO ANGER."  TERMINIELLO V. CHICAGO, 337 U.S. 1,
4.  THE IDEA THAT THE FIRST AMENDMENT PERMITS PUNISHMENT FOR IDEAS THAT
ARE "OFFENSIVE" TO THE PARTICULAR JUDGE OR JURY SITTING IN JUDGMENT IS
ASTOUNDING.  NO GREATER LEVELER OF SPEECH OR LITERATURE HAS EVER BEEN
DESIGNED.  TO GIVE THE POWER TO THE CENSOR, AS WE DO TODAY, IS TO MAKE
A SHARP AND RADICAL BREAK WITH THE TRADITIONS OF A FREE SOCIETY.  THE
FIRST AMENDMENT WAS NOT FASHIONED AS A VEHICLE FOR DISPENSING
TRANQUILIZERS TO THE PEOPLE. 

[[HC45'(ORIGINAL DOCUMENT PAGE 45)'  ITS PRIME FUNCTION WAS TO KEEP
DEBATE OPEN TO "OFFENSIVE" AS WELL AS TO "STAID" PEOPLE.  THE TENDENCY
THROUGHOUT HISTORY HAS BEEN TO SUBDUE THE INDIVIDUAL AND TO EXALT THE
POWER OF GOVERNMENT.  THE USE OF THE STANDARD "OFFENSIVE" GIVES
AUTHORITY TO GOVERNMENT THAT CUTS THE VERY VITALS OUT OF THE FIRST
AMENDMENT.  /9/  AS IS INTIMATED BY THE COURT'S OPINION, THE MATERIALS
BEFORE US MAY BE GARBAGE.  BUT SO IS MUCH OF WHAT IS SAID IN POLITICAL
CAMPAIGNS, IN THE DAILY PRESS, ON TV, OR OVER THE RADIO.  BY REASON OF
THE FIRST AMENDMENT--AND SOLELY BECAUSE OF IT--SPEAKERS AND PUBLISHERS
HAVE NOT BEEN THREATENED OR SUBDUED BECAUSE THEIR THOUGHTS AND IDEAS
MAY BE "OFFENSIVE" TO SOME.     THE STANDARD "OFFENSIVE" IS
UNCONSTITUTIONAL IN YET ANOTHER WAY.  IN COATES V. CITY OF CINCINNATI,
402 U.S. 611, WE HAD BEFORE US A MUNICIPAL ORDINANCE THAT MADE IT A
CRIME FOR THREE OR MORE PERSONS TO ASSEMBLE ON A STREET AND CONDUCT
THEMSELVES "IN A MANNER ANNOYING TO PERSONS PASSING BY." 

[[HC46'(ORIGINAL DOCUMENT PAGE 46)'  WE STRUCK IT DOWN, SAYING:  "IF
THREE OR MORE PEOPLE MEET TOGETHER ON A SIDEWALK OR STREET CORNER, THEY
MUST CONDUCT THEMSELVES SO AS NOT TO ANNOY ANY POLICE OFFICER OR OTHER
PERSON WHO SHOULD HAPPEN TO PASS BY.  IN OUR OPINION THIS ORDINANCE IS
UNCONSTITUTIONALLY VAGUE BECAUSE IT SUBJECTS THE EXERCISE OF THE RIGHT
OF ASSEMBLY TO AN UNASCERTAINABLE STANDARD, AND UNCONSTITUTIONALLY
BROAD BECAUSE IT AUTHORIZES THE PUNISHMENT OF CONSTITUTIONALLY
PROTECTED CONDUCT. 

"CONDUCT THAT ANNOYS SOME PEOPLE DOES NOT ANNOY OTHERS.  THUS, THE
ORDINANCE IS VAGUE, NOT IN THE SENSE THAT IT REQUIRES A PERSON TO
CONFORM HIS CONDUCT TO AN IMPRECISE BUT COMPREHENSIVE NORMATIVE
STANDARD, BUT RATHER IN THE SENSE THAT NO STANDARD OF CONDUCT IS
SPECIFIED AT ALL."  ID., AT 614. 

HOW WE CAN DENY OHIO THE CONVENIENCE OF PUNISHING PEOPLE WHO "ANNOY"
OTHERS AND ALLOW CALIFORNIA POWER TO PUNISH PEOPLE WHO PUBLISH
MATERIALS "OFFENSIVE" TO SOME PEOPLE IS DIFFICULT TO SQUARE WITH
CONSTITUTIONAL REQUIREMENTS. 

IF THERE ARE TO BE RESTRAINTS ON WHAT IS OBSCENE, THEN A
CONSTITUTIONAL AMENDMENT SHOULD BE THE WAY OF ACHIEVING THE END.  THERE
ARE SOCIETIES WHERE RELIGION AND MATHEMATICS ARE THE ONLY FREE
SEGMENTS.  IT WOULD BE A DARK DAY FOR AMERICA IF THAT WERE OUR
DESTINY.  BUT THE PEOPLE CAN MAKE IT SUCH IF THEY CHOOSE TO WRITE
OBSCENITY INTO THE CONSTITUTION AND DEFINE IT. 

WE DEAL WITH HIGHLY EMOTIONAL, NOT RATIONAL, QUESTIONS.  TO MANY THE
SONG OF SOLOMON IS OBSCENE.  I DO NOT THINK WE, THE JUDGES, WERE EVER
GIVEN THE CONSTITUTIONAL POWER TO MAKE DEFINITIONS OF OBSCENITY.  IF IT
IS TO BE DEFINED, LET THE PEOPLE DEBATE AND DECIDE BY A CONSTITUTIONAL
AMENDMENT WHAT THEY WANT TO BAN AS OBSCENE AND WHAT STANDARDS THEY WANT
THE LEGISLATURES AND THE COURTS TO APPLY.  PERHAPS THE PEOPLE WILL
DECIDE THAT THE PATH TOWARDS A MATURE, INTEGRATED SOCIETY REQUIRES THAT
ALL IDEAS COMPETING FOR ACCEPTANCE MUST HAVE NO CENSOR. 

[[HC47'(ORIGINAL DOCUMENT PAGE 47)'  PERHAPS THEY WILL DECIDE
OTHERWISE.  WHATEVER THE CHOICE, THE COURTS WILL HAVE SOME GUIDELINES. 
NOW WE HAVE NONE EXCEPT OUR OWN PREDILECTIONS. 

[[DFN 

/1/  CALIFORNIA DEFINES "OBSCENE MATTER" AS "MATTER, TAKEN AS A
WHOLE, THE PREDOMINANT APPEAL OF WHICH TO THE AVERAGE PERSON, APPLYING
CONTEMPORARY STANDARDS, IS TO PRURIENT INTEREST, I. E., A SHAMEFUL OR
MORBID INTEREST IN NUDITY, SEX, OR EXCRETION; AND IS MATTER WHICH TAKEN
AS A WHOLE GOES SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN
DESCRIPTION OR REPRESENTATION OF SUCH MATTERS; AND IS MATTER WHICH
TAKEN AS A WHOLE IS UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE." 
CALIF. PENAL CODE ^ 311 (A). 

/2/  ROTH V. UNITED STATES, 354 U.S. 476, 502 (OPINION OF HARLAN,
J.). 

/3/  GINZBURG V. UNITED STATES, 383 U.S. 463, 467. 

/4/  JACOBELLIS V. OHIO, 378 U.S. 184, 197 (STEWART, J.,
CONCURRING). 

/5/  AT THE CONCLUSION OF A TWO-YEAR STUDY, THE U.S. COMMISSION ON
OBSCENITY AND PORNOGRAPHY DETERMINED THAT THE STANDARDS WE HAVE WRITTEN
INTERFERE WITH CONSTITUTIONALLY PROTECTED MATERIALS: 

"SOCIETY'S ATTEMPTS TO LEGISLATE FOR ADULTS IN THE AREA OF OBSCENITY
HAVE NOT BEEN SUCCESSFUL.  PRESENT LAWS PROHIBITING THE CONSENSUAL SALE
OR DISTRIBUTION OF EXPLICIT SEXUAL MATERIALS TO ADULTS ARE EXTREMELY
UNSATISFACTORY IN THEIR PRACTICAL APPLICATION.  THE CONSTITUTION
PERMITS MATERIAL TO BE DEEMED 'OBSCENE' FOR ADULTS ONLY IF, AS A WHOLE,
IT APPEALS TO THE 'PRURIENT' INTEREST OF THE AVERAGE PERSON, IS
'PATENTLY OFFENSIVE' IN LIGHT OF 'COMMUNITY STANDARDS,' AND LACKS
'REDEEMING SOCIAL VALUE.'  THESE VAGUE AND HIGHLY SUBJECTIVE AESTHETIC,
PSYCHOLOGICAL AND MORAL TESTS DO NOT PROVIDE MEANINGFUL GUIDANCE FOR
LAW ENFORCEMENT OFFICIALS, JURIES OR COURTS.  AS A RESULT, LAW IS
INCONSISTENTLY AND SOMETIMES ERRONEOUSLY APPLIED AND THE DISTINCTIONS
MADE BY COURTS BETWEEN PROHIBITED AND PERMISSIBLE MATERIALS OFTEN
APPEAR INDEFENSIBLE.  ERRORS IN THE APPLICATION OF THE LAW AND
UNCERTAINTY ABOUT ITS SCOPE ALSO CAUSE INTERFERENCE WITH THE
COMMUNICATION OF CONSTITUTIONALLY PROTECTED MATERIALS."  REPORT OF THE
COMMISSION ON OBSCENITY AND PORNOGRAPHY 53 (1970). 

/6/  IT IS SAID THAT "OBSCENE" PUBLICATIONS CAN BE BANNED ON
AUTHORITY OF RESTRAINS ON COMMUNICATIONS INCIDENT TO DECREES
RESTRAINING UNLAWFUL BUSINESS MONOPOLIES OR UNLAWFUL RESTRAINTS OF
TRADE, SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553, 597, OR
COMMUNICATIONS RESPECTING THE SALE OF SPURIOUS OR FRAUDULENT
SECURITIES.  HALL V. GEIGER-JONES CO., 242 U.S. 539, 549; CALDWELL V.
SIOUX FALLS STOCK YARDS CO., 242 U.S. 559, 567; MERRICK V. HALSEY &
CO., 242 U.S. 568, 584.  THE FIRST AMENDMENT ANSWER IS THAT WHENEVER
SPEECH AND CONDUCT ARE BRIGADED--AS THEY ARE WHEN ONE SHOUTS "FIRE" IN
A CROWED THREATER--SPEECH CAN BE OUTLAWED.  MR. JUSTICE BLACK, WRITING
FOR A UNANIMOUS COURT IN GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490,
STATED THAT LABOR UNIONS COULD BE RESTRAINED FROM PICKETING A FIRM IN
SUPPORT OF A SECONDARY BOYCOTT WHICH A STATE HAD VALIDLY OUTLAWED.  MR.
JUSTICE BLACK SAID:  "IT RARELY HAS BEEN SUGGESTED THAT THE
CONSTITUTIONAL FREEDOM FOR SPEECH AND PRESS EXTENDS ITS IMMUNITY TO
SPEECH OR WRITING USED AS AN INTEGRAL PART OF CONDUCT IN VIOLATION OF A
VALID CRIMINAL STATUTE.  WE REJECT THE CONTENTION NOW."  ID., AT 498. 

/7/  SEE UNITED STATES V. 12 200-FT. REELS OF FILM, POST, P. 123;
UNITED STATES V. ORITO, POST, P. 139; KOIS V. WISCONSIN, 408 U.S. 229;
BYRNE V. KARALEXIS, 396 U.S. 976, 977; GINSBERG V. NEW YORK, 390 U.S.
629, 650; JACOBS V. NEW YORK, 388 U.S. 431, 436; GINZBURG V. UNITED
STATES, 383 U.S. 463, 482; MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 424;
BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58, 72; TIMES FILM CORP. V.
CHICAGO, 365 U.S. 43, 78; SMITH V. CALIFORNIA, 361 U.S. 147, 167;
KINGSLEY PICTURES CORP. V. REGENTS, 360 U.S. 684, 697; ROTH V. UNITED
STATES, 354 U.S. 476, 508; KINGSLEY BOOKS, INC. V. BROWN, 354 U.S. 436,
446; SUPERIOR FILMS, INC. V. DEPARTMENT OF EDUCATION, 346 U.S. 587,
588; GELLING V. TEXAS, 343 U.S. 960. 

/8/  THE COMMISSION ON OBSCENITY AND PORNOGRAPHY HAS ADVOCATED SUCH
A PROCEDURE: 

"THE COMMISSION RECOMMENDS THE ENACTMENT, IN ALL JURISDICTIONS WHICH
ENACT OR RETAIN PROVISIONS PROHIBITING THE DISSEMINATION OF SEXUAL
MATERIALS TO ADULTS OR YOUNG PERSONS, OF LEGISLATION AUTHORIZING
PROSECUTORS TO OBTAIN DECLARATORY JUDGMENTS AS TO WHETHER PARTICULAR
MATERIALS FALL WITHIN EXISTING LEGAL PROHIBITIONS . . . . 

"A DECLARATORY JUDGMENT PROCEDURE . . . WOULD PERMIT PROSECUTORS TO
PROCEED CIVILLY, RATHER THAN THROUGH THE CRIMINAL PROCESS, AGAINST
SUSPECTED VIOLATIONS OF OBSCENITY PROHIBITION.  IF SUCH CIVIL
PROCEDURES ARE UTILIZED, PENALTIES WOULD BE IMPOSED FOR VIOLATION OF
THE LAW ONLY WITH RESPECT TO CONDUCT OCCURRING AFTER A CIVIL
DECLARATION IS OBTAINED.  THE COMMISSION BELIEVES THIS COURSE OF ACTION
TO BE APPROPRIATE WHENEVER THERE IS ANY EXISTING DOUBT REGARDING THE
LEGAL STATUS OF MATERIALS; WHERE OTHER ALTERNATIVES ARE AVAILABLE, THE
CRIMINAL PROCESS SHOULD NOT ORDINARILY BE INVOKED AGAINST PERSONS WHO
MIGHT HAVE REASONABLY BELIEVED, IN GOOD FAITH, THAT THE BOOKS OR FILMS
THEY DISTRIBUTED WERE ENTITLED TO CONSTITUTIONAL PROTECTION, FOR THE
THREAT OF CRIMINAL SANCTIONS MIGHT OTHERWISE DETER THE FREE
DISTRIBUTION OF CONSTITUTIONALLY PROTECTED MATERIAL."  REPORT OF THE
COMMISSION ON OBSCENITY AND PORNOGRAPHY 63 (1970). 

/9/  OBSCENITY LAW HAS HAD A CAPRICIOUS HISTORY:  "THE WHITE SLAVE
TRAFFIC WAS FIRST EXPOSED BY W. T. STEAD IN A MAGAZINE ARTICLE, 'THE
MAIDEN TRIBUTE.'  THE ENGLISH LAW DID ABSOLUTELY NOTHING TO THE
PROFITEERS IN VICE, BUT PUT STEAD IN PRISON FOR A YEAR FOR WRITING
ABOUT AN INDECENT SUBJECT.  WHEN THE LAW SUPPLIES NO DEFINITE STANDARD
OF CRIMINALITY, A JUDGE IN DECIDING WHAT IS INDECENT OR PROFANE MAY
CONSCIOUSLY DISREGARD THE SOUND TEST OF PRESENT INJURY, AND PROCEEDING
UPON AN ENTIRELY DIFFERENT THEORY MAY CONDEMN THE DEFENDANT BECAUSE HIS
WORDS EXPRESS IDEAS WHICH ARE THOUGHT LIABLE TO CAUSE BAD FUTURE
CONSEQUENCES.  THUS MUSICAL COMEDIES ENJOY ALMOST UNBRIDLED LICENSE,
WHILE A PROBLEM PLAY IS OFTEN FORBIDDEN BECAUSE OPPOSED TO OUR VIEWS OF
MARRIAGE.  IN THE SAME WAY, THE LAW OF BLASPHEMY HAS BEEN USED AGAINST
SHELLEY'S QUEEN MOB AND THE DECOROUS PROMULGATION OF PANTHEISTIC IDEAS,
ON THE GROUND THAT TO ATTACK RELIGION IS TO LOOSEN THE BONDS OF SOCIETY
AND ENDANGER THE STATE.  THIS IS SIMPLY A ROUNDABOUT MODERN METHOD TO
MAKE HETERODOXY IN SEX MATTERS AND EVEN IN RELIGION A CRIME."  Z.
CHAFEE, FREE SPEECH IN THE UNITED STATES 151 (1942). 

[[DOP 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

IN MY DISSENT IN PARIS ADULT THEATRE I V. SLATON, POST, P. 73,
DECIDED THIS DATE, I NOTED THAT I HAD NO OCCASION TO CONSIDER THE
EXTENT OF STATE POWER TO REGULATE THE DISTRIBUTION OF SEXUALLY ORIENTED
MATERIAL TO JUVENILES OR THE OFFENSIVE EXPOSURE OF SUCH MATERIAL TO
UNCONSENTING ADULTS.  IN THE CASE BEFORE US, APPELLANT WAS CONVICTED OF
DISTRIBUTING OBSCENE MATTER IN VIOLATION OF CALIFORNIA PENAL CODE ^
311.2, ON THE BASIS OF EVIDENCE THAT HE HAD CAUSED TO BE MAILED
UNSOLICITED BROCHURES ADVERTISING VARIOUS BOOKS AND A MOVIE.  I NEED
NOT DECIDE WHETHER A STATUTE MIGHT BE DRAWN TO IMPOSE, WITHIN THE
REQUIREMENTS OF THE FIRST AMENDMENT, CRIMINAL PENALTIES FOR THE PRECISE
CONDUCT AT ISSUE HERE.  FOR IT IS CLEAR THAT UNDER MY DISSENT IN PARIS
ADULT THEATRE I, THE STATUTE UNDER WHICH THE PROSECUTION WAS BROUGHT IS
UNCONSTITUTIONALLY OVERBROAD, AND THEREFORE INVALID ON ITS FACE.  /1/
"(THE TRANSCENDENT VALUE TO ALL SOCIETY OF CONSTITUTIONALLY PROTECTED
EXPRESSION IS DEEMED TO JUSTIFY ALLOWING 'ATTACKS ON OVERLY BROAD
STATUES WITH NO REQUIREMENTS THAT THE PERSON MAKING THE ATTACK
DEMONSTRATE THAT HIS OWN CONDUCT COULD NOT BE REGULATED BY A STATUTE
DRAWN WITH THE REQUISITE NARROW SPECIFICITY.'"  GOODING V. WILSON, 405
U.S. 518, 521 (1972), QUOTING FROM DOMBROWSKI V. PFISTER, 380 U.S. 479,
486 (1965). 

[[HC48'(ORIGINAL DOCUMENT PAGE 48)'  SEE ALSO BAGGETT V. BULLITT,
377 U.S. 360, 366 (1964); COATES V. CITY OF CINCINNATI, 402 U.S. 611,
616 (1971); ID., AT 619 - 620 (WHITE, J., DISSENTING); UNITED STATES V.
RAINES, 362 U.S. 17, 21 - 22 (1960); NAACP V. BUTTON, 371 U.S. 415, 433
(1963).  SINCE MY VIEW IN PARIS ADULT THEATRE I REPRESENTS A
SUBSTANTIAL DEPARTURE FROM THE COURSE OF OUR PRIOR DECISIONS, AND SINCE
THE STATE COURTS HAVE AS YET HAD NO OPPORTUNITY TO CONSIDER WHETHER
"READILY APPARENT CONSTRUCTION SUGGESTS ITSELF AS A VEHICLE FOR
REHABILITATING THE (STATUTE) IN A SINGLE PROSECUTION," DOMBROWSKI V.
PFISTER, SUPRA, AT 491, I WOULD REVERSE THE JUDGMENT OF THE APPELLATE
DEPARTMENT OF THE SUPERIOR COURT AND REMAND THE CASE FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  SEE COATES V. CITY OF CINCINNATI,
SUPRA, AT 616. 

[[DFN 

/1/  CAL. PENAL CODE ^ 311.2 (A) PROVIDES THAT "EVERY PERSON WHO
KNOWINGLY:  SENDS OR CAUSES TO BE SENT, OR BRINGS OR CAUSES TO BE
BROUGHT, INTO THIS STATE FOR SALE OR DISTRIBUTION, OR IN THIS STATE
PREPARES, PUBLISHES, PRINTS, EXHIBITS, DISTRIBUTES, OR OFFERS TO
DISTRIBUTE, OR HAS IN HIS POSSESSION WITH INTENT TO DISTRIBUTE OR TO
EXHIBIT OR OFFER TO DISTRIBUTE, ANY OBSCENE MATTER IS GUILTY OF A
MISDEMEANOR." 

BURTON MARKS REARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

MICHAEL R. CAPIZZI REARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS CECIL HICKS. 

SAMUEL ROSENWEIN, A. L. WIRIN, FRED OKRAND, LAURENCE R. SPERBER,
MELVIN L. WULF, AND JOEL M. GORA FILED A BRIEF FOR THE AMERICAN CIVIL
LIBERTIES UNION OF SOUTHERN CALIFORNIA ET AL. AS AMICI CURIAE URGING
REVERSAL. 
..END :












PARIS ADULT THEATRE I V. SLATON 413 U.S. 49 


       CERTIORARI TO THE SUPREME COURT OF GEORGIA 

NO. 71 - 1051.  ARGUED OCTOBER 19, 1972--DECIDED JUNE 21, 1973;

  228 GA. 343, 185 S.E. 2D 768, VACATED AND REMANDED. 


    RESPONDENTS SUED UNDER GEORGIA CIVIL LAW TO ENJOIN THE

  EXHIBITING BY PETITIONERS OF TWO ALLEGEDLY OBSCENE FILMS.  THERE

  WAS NO PRIOR RESTRAINT.  IN A JURY-WAIVED TRIAL, THE TRIAL COURT

  (WHICH DID NOT REQUIRE "EXPERT" AFFIRMATIVE EVIDENCE OF

  OBSCENITY) VIEWED THE FILMS AND THEREAFTER DISMISSED THE

  COMPLAINTS ON THE GROUND THAT THE DISPLAY OF THE FILMS IN

  COMMERCIAL THEATERS TO CONSENTING ADULT AUDIENCES (REASONABLE

  PRECAUTIONS HAVING BEEN TAKEN TO EXCLUDE MINORS) WAS

  "CONSTITUTIONALLY PERMISSIBLE."  THE GEORGIA SUPREME COURT

  REVERSED, HOLDING THAT THE FILMS CONSTITUTED "HARD CORE"

  PORNOGRAPHY NOT WITHIN THE PROTECTION OF THE FIRST AMENDMENT. 

  HELD: 

     1.  OBSCENE MATERIAL IS NOT SPEECH ENTITLED TO FIRST AMENDMENT

 PROTECTION.  MILLER V. CALIFORNIA, ANTE, P. 15; ROTH V. UNITED

  STATES, 354 U.S. 476.  P. 54. 

     2.  THE GEORGIA CIVIL PROCEDURE FOLLOWED HERE (ASSUMING USE OF

  A CONSTITUTIONALLY ACCEPTABLE STANDARD FOR DETERMINING WHAT IS

UNPROTECTED BY THE FIRST AMENDMENT) COMPORTED WITH THE STANDARDS

  OF TEITEL FILM CORP. V. CUSACK, 390 U.S. 139; FREEDMAN V.

  MARYLAND, 380 U.S. 51; AND KINGSLEY BOOKS, INC. V. BROWN, 354

  U.S. 436.  PP. 54 - 55. 

     3.  IT WAS NOT ERROR TO FAIL TO REQUIRE EXPERT AFFIRMATIVE

  EVIDENCE OF THE FILMS' OBSCENITY, SINCE THE FILMS (WHICH WERE THE

  BEST EVIDENCE OF WHAT THEY DEPICTED) WERE THEMSELVES PLACED IN

  EVIDENCE.  PP. 56. 

     4.  STATES HAVE A LEGITIMATE INTEREST IN REGULATING COMMERCE
IN

  OBSCENE MATERIAL AND ITS EXHIBITION IN PLACES OF PUBLIC

  ACCOMMODATION, INCLUDING "ADULT"  THEATERS.  PP. 57 - 69. 

     (A) THERE IS A PROPER STATE CONCERN WITH SAFEGUARDING AGAINST

  CRIME AND THE OTHER ARGUABLY ILL EFFECTS OF OBSCENITY BY

PROHIBITING THE PUBLIC OR COMMERCIAL EXHIBITION OF OBSCENE

MATERIAL.  THOUGH CONCLUSIVE PROOF IS LACKING, THE STATES MAY

  REASONABLY DETERMINE THAT A NEXUS DOES OR MIGHT EXIST BETWEEN

  ANTISOCIAL BEHAVIOR AND OBSCENE MATERIAL, JUST AS STATES HAVE

  ACTED ON UNPROVABLE ASSUMPTIONS IN OTHER AREAS OF PUBLIC

  CONTROL.  PP. 57 - 63. 

     (B) THOUGH STATES ARE FREE TO ADOPT A LAISSEZ FAIRE POLICY

  TOWARD COMMERCIALIZED OBSCENITY, THEY ARE NOT CONSTITUTIONALLY

OBLIGED TO DO SO.  P. 64. 

     (C) EXHIBITION OF OBSCENE MATERIAL IN PLACES OF PUBLIC

  ACCOMMODATION IS NOT PROTECTED BY ANY CONSTITUTIONAL DOCTRINE OF

  PRIVACY. 

[[HC50'(ORIGINAL DOCUMENT PAGE 50)'

  A COMMERCIAL THEATER CANNOT BE EQUATED WITH A PRIVATE HOME; NOR
IS THERE HERE A PRIVACY RIGHT

  ARISING FROM A SPECIAL RELATIONSHIP, SUCH AS MARRIAGE.  STANLEY
V. GEORGIA, 394

  U.S. 557; GRISWOLD V. CONNECTICUT, 381 U.S. 479, DISTINGUISHED. 
NOR CAN THE PRIVACY OF THE

  HOME BE EQUATED WITH A "ZONE" OF "PRIVACY" THAT FOLLOWS A
CONSUMER OF OBSCENE MATERIALS

  WHEREVER HE GOES.  UNITED STATES V. ORITO, POST, P. 139; UNITED
STATES V. 12 200-FT REELS OF

  FILM, POST, P. 123.  PP. 65 - 67. 

(D) PREVENTING THE UNLIMITED DISPLAY OF OBSCENE MATERIAL IS NOT

  THOUGHT CONTROL.  PP. 67 - 68. 

     (E) NOT ALL CONDUCT DIRECTLY INVOLVING "CONSENTING ADULTS"
ONLY

  HAS A CLAIM TO CONSTITUTIONAL PROTECTION.  PP. 68 - 69. 

5.  THE GEORGIA OBSCENITY LAWS INVOLVED HEREIN SHOULD NOW BE

  RE-EVALUATED IN THE LIGHT OF THE FIRST AMENDMENT STANDARDS NEWLY

  ENUNCIATED BY THE COURT IN MILLER V. CALIFORNIA, ANTE, P. 15. 

  PP. 69 - 70. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 70.  BRENNAN, J., FILED A DISSENTING
OPINION, IN WHICH STEWART AND MARSHALL, JJ., JOINED, POST, P. 73. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE TWO ATLANTA, GEORGIA, MOVIE THEATERS AND THEIR
OWNERS AND MANAGERS, OPERATING IN THE STYLE OF "ADULT"  THEATERS. 

[[HC51'(ORIGINAL DOCUMENT PAGE 51)'  ON DECEMBER 28, 1970,
RESPONDENTS, THE LOCAL STATE DISTRICT ATTORNEY AND THE SOLICITOR FOR
THE LOCAL STATE TRIAL COURT, FILED CIVIL COMPLAINTS IN THAT COURT
ALLEGING THAT PETITIONERS WERE EXHIBITING TO THE PUBLIC FOR PAID
ADMISSION TWO ALLEGEDLY OBSCENE FILMS, CONTRARY TO GEORGIA CODE ANN. ^
26 - 2101.  /1/  THE TWO FILMS IN QUESTION, "MAGIC MIRROR" AND "IT ALL
COMES OUT IN THE END," DEPICT SEXUAL CONDUCT CHARACTERIZED BY THE
GEORGIA SUPREME COURT AS "HARD CORE PORNOGRAPHY" LEAVING "LITTLE TO THE
IMAGINATION." 

[[HC52'(ORIGINAL DOCUMENT PAGE 52)' 

RESPONDENTS' COMPLAINTS, MADE ON BEHALF OF THE STATE OF GEORGIA,
DEMANDED THAT THE TWO FILMS BE DECLARED OBSCENE AND THAT PETITIONERS BE
ENJOINED FROM EXHIBITING THE FILMS.  THE EXHIBITION OF THE FILMS WAS
NOT ENJOINED, BUT A TEMPORARY INJUNCTION WAS GRANTED EX PARTE BY THE
LOCAL TRIAL COURT, RESTRAINING PETITIONERS FROM DESTROYING THE FILMS OR
REMOVING THEM FROM THE JURISDICTION.  PETITIONERS WERE FURTHER ORDERED
TO HAVE ONE PRINT EACH OF THE FILMS IN COURT ON JANUARY 13, 1971,
TOGETHER WITH THE PROPER VIEWING EQUIPMENT. 

ON JANUARY 13, 1971, 15 DAYS AFTER THE PROCEEDINGS BEGAN, THE FILMS
WERE PRODUCED BY PETITIONERS AT A JURY-WAIVED TRIAL.  CERTAIN
PHOTOGRAPHS, ALSO PRODUCED AT TRIAL, WERE STIPULATED TO PORTRAY THE
SINGLE ENTRANCE TO BOTH PARIS ADULT THEATRE 1 AND PARIS ADULT THEATRE
II AS IT APPEARED AT THE TIME OF THE COMPLAINTS.  THESE PHOTOGRAPHS
SHOW A CONVENTIONAL, INOFFENSIVE THEATER ENTRANCE, WITHOUT ANY
PICTURES, BUT WITH SIGNS INDICATING THAT THE THEATERS EXHIBIT
"ATLANTA'S FINEST MATURE FEATURE FILMS."  ON THE DOOR ITSELF IS A SIGN
SAYING:  "ADULT THEATRE--YOU MUST BE 21 AND ABLE TO PROVE IT.  IF
VIEWING THE NUDE BODY OFFENDS YOU, PLEASE DO NOT ENTER." 

THE TWO FILMS WERE EXHIBITED TO THE TRIAL COURT.  THE ONLY OTHER
STATE EVIDENCE WAS TESTIMONY BY CRIMINAL INVESTIGATORS THAT THEY HAD
PAID ADMISSION TO SEE THE FILMS AND THAT NOTHING ON THE OUTSIDE OF THE
THEATRE INDICATED THE FULL NATURE OF WHAT WAS SHOWN.  IN PARTICULAR,
NOTHING INDICATED THAT THE FILMS DEPICTED--AS THEY DID--SCENES OF
SIMULATED FELLATIO, CUNNILINGUS, AND GROUP SEX INTERCOURSE.  THERE WAS
NO EVIDENCE PRESENTED THAT MINORS HAD EVER ENTERED THE THEATERS.  NOR
WAS THERE EVIDENCE PRESENTED THAT PETITIONERS HAD A SYSTEMATIC POLICY
OF BARRING MINORS, APART FROM POSTING SIGNS AT THE ENTRANCE.  ON APRIL
12, 1971, THE TRIAL JUDGE DISMISSED RESPONDENTS' COMPLAINTS. 

[[HC53'(ORIGINAL DOCUMENT PAGE 53)'  HE ASSUMED "THAT OBSCENITY IS
ESTABLISHED," BUT STATED: 

     "IT APPEARS TO THE COURT THAT THE DISPLAY OF THESE FILMS IN A

  COMMERCIAL THEATRE, WHEN SURROUNDED BY REQUISITE NOTICE TO THE

  PUBLIC OF THEIR NATURE AND BY REASONABLE PROTECTION AGAINST THE

  EXPOSURE OF THESE FILMS TO MINORS, IS CONSTITUTIONALLY

  PERMISSIBLE." 

ON APPEAL, THE GEORGIA SUPREME COURT UNANIMOUSLY REVERSED.  IT
ASSUMED THAT THE ADULT THEATRE IN QUESTION BARRED MINORS AND GAVE A
FULL WARNING TO THE GENERAL PUBLIC OF THE NATURE OF THE FILMS SHOWN,
BUT HELD THAT THE FILMS WERE WITHOUT PROTECTION UNDER THE FIRST
AMENDMENT.  CITING THE OPINION OF THIS COURT IN UNITED STATES V.
REIDEL, 402 U.S. 351 (1971), THE GEORGIA COURT STATED THAT "THE SALE
AND DELIVERY OF OBSCENE MATERIAL TO WILLING ADULTS IS NOT PROTECTED
UNDER THE FIRST AMENDMENT."  THE GEORGIA COURT ALSO HELD STANLEY V.
GEORGIA, 394 U.S. 557 (1969), TO BE INAPPOSITE SINCE IT DID NOT DEAL
WITH "THE COMMERCIAL DISTRIBUTION OF PORNOGRAPHY, BUT WITH THE RIGHT OF
STANLEY TO POSSESS, IN THE PRIVACY OF HIS HOME, PORNOGRAPHIC FILMS." 
228 GA. 343, 345, 185 S.E. 2D 768, 769 (1971).  AFTER VIEWING THE
FILMS, THE GEORGIA SUPREME COURT HELD THAT THEIR EXHIBITION SHOULD HAVE
BEEN ENJOINED, STATING: 

"THE FILMS IN THIS CASE LEAVE LITTLE TO THE IMAGINATION.  IT IS
PLAIN WHAT THEY PURPORT TO DEPICT, THAT IS, CONDUCT OF THE MOST
SALACIOUS CHARACTER.  WE HOLD THAT THESE FILMS ARE ALSO HARD CORE
PORNOGRAPHY, AND THE SHOWING OF SUCH FILMS SHOULD HAVE BEEN ENJOINED
SINCE THEIR EXHIBITION IS NOT PROTECTED BY THE FIRST AMENDMENT."  ID.,
AT 347, 185 S.E.2D, AT 770. 

        I 

IT SHOULD BE CLEAR FROM THE OUTSET THAT WE DO NOT UNDERTAKE TO TELL
THE STATES WHAT THEY MUST DO, BUT RATHER TO DEFINE THE AREA IN WHICH
THEY MAY CHART THEIR OWN COURSE IN DEALING WITH OBSCENE MATERIAL. 

[[HC54'(ORIGINAL DOCUMENT PAGE 54)'  THIS COURT HAS CONSISTENTLY
HELD THAT OBSCENE MATERIAL IS NOT PROTECTED BY THE FIRST AMENDMENT AS A
LIMITATION ON THE STATE POLICE POWER BY VIRTUE OF THE FOURTEENTH
AMENDMENT.  MILLER V. CALIFORNIA, ANTE, AT 23 - 25; KOIS V. WISCONSIN,
408 U.S. 229, 230 (1972); UNITED STATES V. REIDEL, SUPRA, AT 354; ROTH
V. UNITED STATES, 354 U.S. 476, 485 (1957). 

GEORGIA CASE LAW PERMITS A CIVIL INJUNCTION OF THE EXHIBITION OF
OBSCENE MATERIALS.  SEE 1024 PEACHTREE CORP. V. SLATON, 228 GA. 102,
184 S.E. 2D 144 (1971); WALTER V. SLATON, 227 GA. 676, 182 S.E. 2D 464
(1971); EVANS THEATRE CORP. V. SLATON, 227 GA. 377, 180 S.E.2D 712
(1971).  WHILE THIS PROCEDURE IS CIVIL IN NATURE, AND DOES NOT DIRECTLY
INVOLVE THE STATE CRIMINAL STATUTE PROSCRIBING EXHIBITION OF OBSCENE
MATERIAL, /2/  THE GEORGIA CASE LAW PERMITTING CIVIL INJUNCTION DOES
ADOPT THE DEFINITION OF "OBSCENE MATERIALS" USED BY THE CRIMINAL
STATUTE.  /3/  TODAY, IN MILLER V. CALIFORNIA, SUPRA, WE HAVE SOUGHT TO
CLARIFY THE CONSTITUTIONAL DEFINITION OF OBSCENE MATERIAL SUBJECT TO
REGULATION BY THE STATES, AND WE VACATE AND REMAND THIS CASE FOR
RECONSIDERATION IN LIGHT OF MILLER. 

[[HC55'(ORIGINAL DOCUMENT PAGE 55)' 

THIS IS NOT TO BE READ AS DISAPPROVAL OF THE GEORGIA CIVIL PROCEDURE
EMPLOYED IN THIS CASE, ASSUMING THE USE OF A CONSTITUTIONALLY ACCEPTED
STANDARD FOR DETERMINING WHAT IS UNPROTECTED BY THE FIRST AMENDMENT. 
ON THE CONTRARY, SUCH A PROCEDURE PROVIDES AN EXHIBITOR OR PURVEYOR OF
MATERIALS THE BEST POSSIBLE NOTICE, PRIOR TO ANY CRIMINAL INDICTMENTS,
AS TO WHETHER THE MATERIALS ARE UNPROTECTED BY THE FIRST AMENDMENT AND
SUBJECT TO STATE REGULATION.  /4/  SEE KINGSLEY BOOKS, INC. V. BROWN,
354 U.S. 436, 441 - 444 (1957).  HERE, GEORGIA IMPOSED NO RESTRAINT ON
THE EXHIBITION OF THE FILMS INVOLVED IN THIS CASE UNTIL AFTER A FULL
ADVERSARY PROCEEDING AND A FINAL JUDICIAL DETERMINATION BY THE GEORGIA
SUPREME COURT THAT THE MATERIALS WERE CONSTITUTIONALLY UNPROTECTED. 
/5/  THUS THE STANDARDS OF BLOUNT V. RIZZI, 400 U.S. 410, 417 (1971);
TEITEL FILM CORP. V. CUSACK, 390 U.S. 139, 141 - 142 (1968); FREEDMAN
V. MARYLAND, 380 U.S. 51, 58 - 59 (1965), AND KINGSLEY BOOKS, INC. V.
BROWN, SUPRA, AT 443 - 445, WERE MET.  CF. UNITED STATES V. THIRTY
SEVEN PHOTOGRAPHS, 402 U.S. 363, 367 - 369 (1971) (OPINION OF WHITE,
J.). 

NOR WAS IT ERROR TO FAIL TO REQUIRE "EXPERT" AFFIRMATIVE EVIDENCE
THAT THE MATERIALS WERE OBSCENE WHEN THE MATERIALS THEMSELVES WERE
ACTUALLY PLACED IN EVIDENCE. 

[[HC56'(ORIGINAL DOCUMENT PAGE 56)'  UNITED STATES V. GRONER, 479
F.2D 577, 579 - 586 (CA 5 1973); ID., AT 586 - 588 (AINSWORTH, J.,
CONCURRING); ID., AT 588 - 589 (CLARK, J., CONCURRING); UNITED STATES
V. WILD, 422 F.2D 34, 35 - 36 (CA2 1969), CERT. DENIED, 402 U.S. 986
(1971); KAHM V. UNITED STATES, 300 F.2D 78, 84 (CA5), CERT. DENIED, 369
U.S. 859 (1962); STATE V. AMATO, 49 WIS. 2D 638, 645, 183 N.W. 2D 29,
32 (1971), CERT. DENIED SUB NOM. AMATO V. WISCONSIN, 404 U.S. 1063
(1972).  SEE SMITH V. CALIFORNIA, 361 U.S. 147, 172 (1959) (HARLAN, J.,
CONCURRING AND DISSENTING); UNITED STATES V. BROWN, 328 F.SUPP.  196,
199 (ED VA. 1971).  THE FILMS, OBVIOUSLY, ARE THE BEST EVIDENCE OF WHAT
THEY REPRESENT.  /6/  "IN THE CASES IN WHICH THIS COURT HAS DECIDED
OBSCENITY QUESTIONS SINCE ROTH, IT HAS REGARDED THE MATERIALS AS
SUFFICIENT IN THEMSELVES FOR THE DETERMINATION OF THE QUESTION." 
GINZBURG V. UNITED STATES, 383 U.S. 463, 465 (1966). 

II 

WE CATEGORICALLY DISAPPROVE THE THEORY, APPARENTLY ADOPTED BY THE
TRIAL JUDGE, THAT OBSCENE, PORNOGRAPHIC FILMS ACQUIRE CONSTITUTIONAL
IMMUNITY FROM STATE REGULATION SIMPLY BECAUSE THEY ARE EXHIBITING FOR
CONSENTING ADULTS ONLY. 

[[HC57'(ORIGINAL DOCUMENT PAGE 57)'  THIS HOLDING WAS PROPERLY
REJECTED BY THE GEORGIA SUPREME COURT.  ALTHOUGH WE HAVE OFTEN
POINTEDLY RECOGNIZED THE HIGH IMPORTANCE OF THE STATE INTEREST IN
REGULATING THE EXPOSURE OF OBSCENE MATERIALS TO JUVENILES AND
UNCONSENTING ADULTS, SEE MILLER V. CALIFORNIA, ANTE, AT 18 - 20;
STANLEY V. GEORGIA, 394 U.S., AT 567; REDRUP V. NEW YORK; 386 U.S. 767,
769 (1967), THIS COURT HAS NEVER DECLARED THESE TO BE THE ONLY
LEGITIMATE STATE INTERESTS PERMITTING REGULATION OF OBSCENE MATERIAL. 
THE STATES HAVE A LONG-RECOGNIZED LEGITIMATE INTEREST IN REGULATING THE
USE OF OBSCENE MATERIAL IN LOCAL COMMERCE AND IN ALL PLACES OF PUBLIC
ACCOMMODATION, AS LONG AS THESE REGULATIONS DO NOT RUN AFOUL OF
SPECIFIC CONSTITUTIONAL PROHIBITIONS.  SEE UNITED STATES V. THIRTY
SEVEN PHOTOGRAPHS, SUPRA, AT 376 - 377 (OPINION OF WHITE, J.); UNITED
STATES V. REIDEL, 402 U.S., AT 354 - 356.  CF. UNITED STATES V. THIRTY
SEVEN PHOTOGRAPHS, SUPRA, AT 378 (STEWART, J., CONCURRING).  "IN AN
UNBROKEN SERIES OF CASES EXTENDING OVER A LONG STRETCH OF THIS COURT'S
HISTORY, IT HAS BEEN ACCEPTED AS A POSTULATE THAT 'THE PRIMARY
REQUIREMENTS OF DECENCY MAY BE ENFORCED AGAINST OBSCENE PUBLICATIONS.' 
(NEAR V. MINNESOTA, 283 U.S. 697, 716 (1931))."  KINGSLEY BOOKS, INC.
V. BROWN, SUPRA, AT 440. 

IN PARTICULAR, WE HOLD THAT THERE ARE LEGITIMATE STATE INTERESTS AT
STAKE IN STEMMING THE TIDE OF COMMERCIALIZED OBSCENITY, EVEN ASSUMING
IT IS FEASIBLE TO ENFORCE EFFECTIVE SAFEGUARDS AGAINST EXPOSURE TO
JUVENILES AND TO PASSERSBY.  /7/ 

[[HC58'(ORIGINAL DOCUMENT PAGE 58)'  RIGHTS AND INTERESTS "OTHER
THAN THOSE OF THE ADVOCATES ARE INVOLVED."  BREARD V. ALEXANDRIA, 341
U.S. 622, 642 (1951).  THESE INCLUDE THE INTEREST OF THE PUBLIC IN THE
QUALITY OF LIFE AND THE TOTAL COMMUNITY ENVIRONMENT, THE TONE OF
COMMERCE IN THE GREAT CITY CENTERS, AND, POSSIBLY, THE PUBLIC SAFETY
ITSELF.  THE HILL-LINK MINORITY REPORT OF THE COMMISSION ON OBSCENITY
AND PORNOGRAPHY INDICATES THAT THERE IS AT LEAST AN ARGUABLE
CORRELATION BETWEEN OBSCENE MATERIAL AND CRIME.  /8/  QUITE APART FROM
SEX CRIMES, HOWEVER, THERE REMAINS ONE PROBLEM OF LARGE PROPORTIONS
APTLY DESCRIBED BY PROFESSOR BICKEL: 

[[HC59'(ORIGINAL DOCUMENT PAGE 59)' 

"IT CONCERNS THE TONE OF THE SOCIETY, THE MODE, OR TO USE TERMS THAT
HAVE PERHAPS GREATER CURRENCY, THE STYLE AND QUALITY OF LIFE, NOW AND
IN THE FUTURE.  A MAN MAY BE ENTITLED TO READ AN OBSCENE BOOK IN HIS
ROOM, OR EXPOSE HIMSELF INDECENTLY THERE . . . . WE SHOULD PROTECT HIS
PRIVACY.  BUT IF HE DEMANDS A RIGHT TO OBTAIN THE BOOKS AND PICTURES HE
WANTS IN THE MARKET, AND TO FOREGATHER IN PUBLIC PLACES--DISCREET, IF
YOU WILL, BUT ACCESSIBLE TO ALL--WITH OTHERS WHO SHARE HIS TASTES, THEN
TO GRANT HIM HIS RIGHT IS TO AFFECT THE WORLD ABOUT THE REST OF US, AND
TO IMPINGE ON OTHER PRIVACIES.  EVEN SUPPOSING THAT EACH OF US CAN, IF
HE WISHES, EFFECTIVELY AVERT THE EYE AND STOP THE EAR (WHICH, IN TRUTH,
WE CANNOT), WHAT IS COMMONLY READ AND SEEN AND HEARD AND DONE INTRUDES
UPON US ALL, WANT IT OR NOT."  22 THE PUBLIC INTEREST 25 - 26 (WINTER
1971).  /9/  (EMPHASIS ADDED.)  AS MR. CHIEF JUSTICE WARREN STATED,
THERE IS A "RIGHT OF THE NATION AND OF THE STATES TO MAINTAIN A DECENT
SOCIETY . . . ," JACOBELLIS V. OHIO, 378 U.S. 184, 199 (1964)
(DISSENTING OPINION).  /10/ 

[[HC60'(ORIGINAL DOCUMENT PAGE 60)'  SEE MEMOIRS V. MASSACHUSETTS,
383 U.S. 413, 457 (1966) (HARLAN, J., DISSENTING); BEUHARNAIS V.
ILLINOIS, 343 U.S. 250, 256 - 257 (1952); KOVACS V. COOPER, 336 U.S.
77, 86 - 88 (1949). 

BUT, IT IS ARGUED, THERE ARE NO SCIENTIFIC DATA WHICH CONCLUSIVELY
DEMONSTRATE THAT EXPOSURE TO OBSCENE MATERIAL ADVERSELY AFFECTS MEN AND
WOMEN OR THEIR SOCIETY.  IT IS URGED ON BEHALF OF THE PETITIONERS THAT,
ABSENT SUCH A DEMONSTRATION, ANY KIND OF STATE REGULATION IS
"IMPERMISSIBLE."  WE REJECT THIS ARGUMENT.  IT IS NOT FOR US TO RESOLVE
EMPIRICAL UNCERTAINITIES UNDERLYING STATE LEGISLATION, SAVE IN THE
EXCEPTIONAL CASE WHERE THAT LEGISLATION PLAINLY IMPINGES UPON RIGHTS
PROTECTED BY THE CONSTITUTION ITSELF.  /11/  MR. JUSTICE BRENNAN,
SPEAKING FOR THE COURT IN GINSBERG V. NEW YORK, 390 U.S. 629, 642 - 643
(1968), SAID:  "WE DO NOT DEMAND OF LEGISLATURES 'SCIENTIFICALLY
CERTAIN CRITERIA OF LEGISLATION.'  NOBLE STATE BANK V. HASKELL, 219
U.S. 104, 110."  ALTHOUGHT THERE IS NO CONCLUSIVE PROOF OF A CONNECTION
BETWEEN ANTISOCIAL BEHAVIOR AND OBSCENE MATERIAL, THE LEGISLATURE OF
GEORGIA COULD QUITE REASONABLY DETERMINE THAT SUCH A CONNECTION DOES OR
MIGHT EXIST. 

[[HC61'(ORIGINAL DOCUMENT PAGE 61)'  IN DECIDING ROTH, THIS COURT
IMPLICITLY ACCEPTED THAT A LEGISLATURE COULD LEGITIMATELY ACT ON SUCH A
CONCLUSION TO PROTECT "THE SOCIAL INTEREST IN ORDER AND MORALITY." 
ROTH V. UNITED STATES, 354 U.S., AT 485, QUOTING CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568, 572 (1942) (EMPHASIS ADDED IN ROTH).  /12/ 
FROM THE BEGINNING OF CIVILIZED SOCIETIES, LEGISLATORS AND JUDGES HAVE
ACTED ON VARIOUS UNPROVABLE ASSUMPTIONS.  SUCH ASSUMPTIONS UNDERLIE
MUCH LAWFUL STATE REGULATION OF COMMERCIAL AND BUSINESS AFFAIRS.  SEE
FERGUSON V. SKRUPA, 372 U.S. 726, 730 (1963); BREARD V. ALEXANDRIA, 341
U.S., AT 632 - 633, 641 - 645; LINCOLN FEDERAL LABOR UNION V.
NORTHWESTERN IRON & METAL CO., 335 U.S. 525, 536 - 537 (1949).  THE
SAME IS TRUE OF THE FEDERAL SECURITIES AND ANTITRUST LAWS AND A HOST OF
FEDERAL REGULATIONS.  SEE SEC V. CAPITAL GAINS RESEARCH BUREAU, INC.,
375 U.S. 180, 186 - 195 (1963); AMERICAN POWER & LIGHT CO. V. SEC 329
U.S. 90, 99 - 103 (1946); NORTH AMERICAN CO. V. SEC, 327 U.S. 686, 705
707 (1946), AND CASES CITED.  SEE ALSO BROOKS V. UNITED STATES, 267
U.S. 432, 436 - 437 (1925), AND HOKE V. UNITED STATES, 227 U.S. 308,
322 (1913).  ON THE BASIS OF THESE ASSUMPTIONS BOTH CONGRESS AND STATE
LEGISLATURES HAVE, FOR EXAMPLE, DRASTICALLY RESTRICTED ASSOCIATIONAL
RIGHTS BY ADOPTING ANTITRUST LAWS, AND HAVE STRICTLY REGULATED PUBLIC
EXPRESSION BY ISSUERS OF AND DEALERS IN SECURITIES, PROFIT SHARING
"COUPONS,"  AND "TRADING STAMPS," COMMANDING WHAT THEY MUST AND MUST
NOT PUBLISH AND ANNOUNCE. 

[[HC62'(ORIGINAL DOCUMENT PAGE 62)'  SEE SUGAR INSTITUTE, INC. V.
UNITED STATES, 297 U.S. 553, 597 - 602 (1936); MERRICK V. N. W. HALSEY
& CO., 242 U.S. 568, 584 - 589 (1917); CALDWELL V. SIOUX FALLS STOCK
YARDS CO., 242 U.S. 559, 567 - 568 (1917); HALL V. GEIGER-JONES CO.,
242 U.S. 539, 548 - 552 (1917); TANNER V. LITTLE, 240 U.S. 369, 383 -
386 (1916); RAST V. VAN DEMAN & LEWIS CO., 240 U.S. 342, 363 - 368
(1916).  UNDERSTANDABLY THOSE WHO ENTERTAIN AN ABSOLUTIST VIEW OF THE
FIRST AMENDMENT FIND IT UNCOMFORTABLE TO EXPLAIN WHY RIGHTS OF
ASSOCIATION, SPEECH, AND PRESS SHOULD BE SEVERLY RESTRAINED IN THE
MARKETPLACE OF GOODS AND MONEY, BUT NOT IN THE MARKETPLACE OF
PORNOGRAPHY. 

LIKEWISE, WHEN LEGISLATURES AND ADMINISTRATORS ACT TO PROTECT THE
PHYSICAL ENVIRONMENT FROM POLLUTION AND TO PRESERVE OUR RESOURCES OF
FORESTS, STREAMS, AND PARKS, THEY MUST ACT ON SUCH IMPONDERABLES AS THE
THE IMPACT OF A NEW HIGHWAY NEAR OR THROUGH AN EXISTING PARK OR
WILDERNESS AREA.  SEE CITIZENS TO PRESERVE OVERTON PARK V. VOLPE, 401
U.S. 402, 417 - 420 (1971).  THUS, ^ 18 (A) OF THE FEDERAL-AID HIGHWAY
ACT OF 1968, 23 U.S.C. ^ 138, AND THE DEPARTMENT OF TRANSPORTATION ACT
OF 1966, AS AMENDED, 82 STAT. 824, 49 U.S.C. ^ 1653 (F), HAVE BEEN
DESCRIBED BY MR. JUSTICE BLACK AS "A SOLEMN DETERMINATION OF THE
HIGHEST LAW-MAKING BODY OF THIS NATION THAT THE BEAUTY AND HEALTH
GIVING FACILITIES OF OUR PARKS ARE NOT TO BE TAKEN AWAY FOR PUBLIC
ROADS WITHOUT HEARINGS, FACTFINDINGS, AND POLICY DETERMINATIONS UNDER
THE SUPERVISION OF A CABINET OFFICER . . . ."  CITIZENS TO PRESERVE
OVERTON PARK, SUPRA, AT 421 (SEPARATE OPINION JOINED BY BRENNAN, J.). 
THE FACT THAT A CONGRESSIONAL DIRECTIVE REFLECTS UNPROVABLE ASSUMPTIONS
ABOUT WHAT IS GOOD FOR THE PEOPLE, INCLUDING IMPONDERABLE AESTHETIC
ASSUMPTIONS, IS NOT A SUFFICIENT REASON TO FIND THAT STATUTE
UNCONSTITUTIONAL. 

IF WE ACCEPT THE UNPROVABLE ASSUMPTION THAT A COMPLETE EDUCATION
REQUIRES CERTAIN BOOKS, SEE BOARD OF EDUCATION V. ALLEN, 392 U.S. 236,
245 (1968), AND JOHNSON V. NEW YORK STATE EDUCATION DEPT., 449 F.2D
871, 882 - 883 (CA2 1971) (DISSENTING OPINION), VACATED AND REMANDED TO
CONSIDER MOOTNESS, 409 U.S. 75 (1972), ID., AT 76 - 77 (MARSHALL, J.,
CONCURRING), AND THE WELL NIGH UNIVERSAL BELIEF THAT GOOD BOOKS, PLAYS,
AND ART LIFT THE SPIRIT, IMPROVE THE MIND, ENRICH THE HUMAN
PERSONALITY, AND DEVELOP CHARACTER, CAN WE THEN SAY THAT A STATE
LEGISLATURE MAY NOT ACT ON THE COROLLARY ASSUMPTION THAT COMMERCE IN
OBSCENE BOOKS, OR PUBLIC EXHIBITIONS FOCUSED ON OBSCENE CONDUCT, HAVE A
TENDENCY TO EXERT A CORRUPTING AND DEBASING IMPACT LEADING TO
ANTISOCIAL BEHAVIOR? 

[[HC63'(ORIGINAL DOCUMENT PAGE 63)'  "MANY OF THESE EFFECTS MAY BE
INTANGIBLE AND INDISTINCT, BUT THEY ARE NONETHELESS REAL."  AMERICAN
POWER & LIGHT CO. V. SEC, SUPRA, AT 103.  MR. JUSTICE CARDOZO SAID THAT
ALL LAWS IN WESTERN CIVILIZATION ARE "GUIDED BY A ROBUST COMMON SENSE .
. . ."  STEWART MACHINE CO. V. DAVIS, 301 U.S. 548, 590 (1937).  THE
SUM OF EXPERIENCE, INCLUDING THAT OF THE PAST TWO DECADES, AFFORDS AN
AMPLE BASIS FOR LEGISLATURES TO CONCLUDE THAT A SENSITIVE, KEY
RELATIONSHIP OF HUMAN EXISTENCE, CENTRAL TO FAMILY LIFE, COMMUNITY
WELFARE, AND THE DEVELOPMENT OF HUMAN PERSONALITY, CAN BE DEBASED AND
DISTORTED BY CRASS COMMERCIAL EXPLOITATION OF SEX.  NOTHING IN THE
CONSTITUTION PROHIBITS A STATE FROM REACHING SUCH A CONCLUSION AND
ACTING ON IT LEGISLATIVELY SIMPLY BECAUSE THERE IS NO CONCLUSIVE
EVIDENCE OR EMPIRICAL DATA. 

IT IS ARGUED THAT INDIVIDUAL "FREE WILL" MUST GOVERN, EVEN IN
ACTIVITIES BEYOND THE PROTECTION OF THE FIRST AMENDMENT AND OTHER
CONSTITUTIONAL GUARANTEES OF PRIVACY, AND THAT GOVERNMENT CANNOT
LEGITIMATELY IMPEDE AN INDIVIDUAL'S DESIRE TO SEE OR ACQUIRE OBSCENE
PLAYS, MOVIES, AND BOOKS.  WE DO INDEED BASE OUR SOCIETY ON CERTAIN
ASSUMPTIONS THAT PEOPLE HAVE THE CAPACITY FOR FREE CHOICE. 

[[HC64'(ORIGINAL DOCUMENT PAGE 64)'  MOST EXERCISES OF INDIVIDUAL FREE
CHOICE--THOSE IN POLITICS, RELIGION, AND EXPRESSION OF IDEAS--ARE
EXPLICITLY PROTECTED BY THE CONSTITUTION.  TOTALLY UNLIMITED PLAY FOR
FREE WILL, HOWEVER, IS NOT ALLOWED IN OUR OR ANY OTHER SOCIETY.  WE
HAVE JUST NOTED, FOR EXAMPLE, THAT NEITHER THE FIRST AMENDMENT NOR
"FREE WILL" PRECLUDES STATES FROM HAVING "BLUE SKY" LAWS TO REGULATE
WHAT SELLERS OF SECURITIES MAY WRITE OR PUBLISH ABOUT THEIR WARES.  SEE
SUPRA, AT 61 - 62.  SUCH LAWS ARE TO PROTECT THE WEAK, THE UNINFORMED,
THE UNSUSPECTING, AND THE GULLIBLE FROM THE EXERCISE OF THEIR OWN
VOLITION.  NOR DO MODERN SOCIETIES LEAVE DISPOSAL OF GARBAGE AND SEWAGE
UP TO THE INDIVIDUAL "FREE WILL", BUT IMPOSE REGULATION TO PROTECT BOTH
PUBLIC HEALTH AND THE APPEARANCE OF PUBLIC PLACES.  STATES ARE TOLD BY
SOME THAT THEY MUST AWAIT A "LAISSEZ FAIRE" MARKET SOLUTION TO THE
OBSCENITY-PORNOGRAPHY PROBLEM, PARADOXICALLY "BY PEOPLE WHO HAVE NEVER
OTHERWISE HAD A KIND WORD TO SAY FOR LAISSEZ-FAIRE," PARTICULARLY IN
SOLVING URBAN, COMMERCIAL, AND ENVIRONMENTAL POLLUTION PROBLEMS.  SEE
I. KRISTOL, ON THE DEMOCRATIC IDEA IN AMERICA 37 (1972). 

THE STATES, OF COURSE, MAY FOLLOW SUCH A "LAISSEZ FAIRE" POLICY AND
DROP ALL CONTROLS ON COMMERCIALIZED OBSCENITY, IF THAT IS WHAT THEY
PREFER, JUST AS THEY CAN IGNORE CONSUMER PROTECTION IN THE MARKETPLACE,
BUT NOTHING IN THE CONSTITUTION COMPELS THE STATES TO DO SO WITH REGARD
TO MATTERS FALLING WITHIN STATE JURISDICTION.  SEE UNITED STATES V.
REIDEL, 402 U.S., AT 357; MEMOIRS V. MASSACHUSETTS, 383 U.S., AT 462
(WHITE, J., DISSENTING).  "WE DO NOT SIT AS A SUPER-LEGISLATURE TO
DETERMINE THE WISDOM, NEED, AND PROPRIETY OF LAWS THAT TOUCH ECONOMIC
PROBLEMS, BUSINESS AFFAIRS, OR SOCIAL CONDITIONS."  GRISWOLD V.
CONNECTICUT, 381 U.S. 479, 482 (1965).  SEE FERGUSON V. SKRUPA, 372
U.S., AT 731; DAY-BRITE LIGHTING, INC. V. MISSOURI, 342 U.S. 421, 423
(1952). 

IT IS ASSERTED, HOWEVER, THAT STANDARDS FOR EVALUATING STATE
COMMERCIAL REGULATIONS ARE INAPPOSITE IN THE PRESENT CONTEXT, AS STATE
REGULATION OF ACCESS BY CONSENTING ADULTS TO OBSCENE MATERIAL VIOLATES
THE CONSTITUTIONALLY PROTECTED RIGHT TO PRIVACY ENJOYED BY PETITIONERS'
CUSTOMERS. 

[[HC65'(ORIGINAL DOCUMENT PAGE 65)'  EVEN ASSUMING THAT PETITIONERS
HAVE VICARIOUS STANDING TO ASSERT POTENTIAL CUSTOMERS' RIGHTS, IT IS
UNAVAILING TO COMPARE A THEATER OPEN TO THE PUBLIC FOR A FEE, WITH THE
PRIVATE HOME OF STANLEY V. GEORGIA, 394 U.S., AT 568, AND THE MARITIAL
BEDROOM OF GRISWOLD V. CONNECTICUT, SUPRA, AT 485 - 486.  THIS COURT,
HAS, ON NUMEROUS OCCASIONS, REFUSED TO HOLD THAT COMMERCIAL VENTURES
SUCH AS A MOTION-PICTURE HOUSE ARE "PRIVATE" FOR THE PURPOSE OF CIVIL
RIGHTS LITIGATION AND CIVIL RIGHTS STATUTES.  SEE SULLIVAN V. LITTLE
HUNTING PARK, INC., 396 U.S. 229, 236 (1969); DANIEL V. PAUL, 395 U.S.
298, 305 - 308 (1969); BLOW V. NORTH CAROLINA, 379 U.S. 684, 685 - 686
(1965); HAMM V. ROCK HILL, 379 U.S. 306, 307 - 308 (1964); HEART OF
ATLANTA MOTEL, INC. V. UNITED STATES, 379 U.S. 241, 247, 260 - 261
(1964).  THE CIVIL RIGHTS ACT OF 1964 SPECIFICALLY DEFINES MOTION
PICTURE HOUSES AND THEATERS AS PLACES OF "PUBLIC ACCOMMODATION"
COVERED BY THE ACT AS OPERATIONS AFFECTING COMMERCE.  78 STAT. 243, 42
U.S.C. ^^ 2000A (B) (3), (C). 

OUR PRIOR DECISIONS RECOGNIZING A RIGHT TO PRIVACY GUARANTEED BY THE
FOURTEENTH AMENDMENT INCLUDED "ONLY PERSONAL RIGHTS THAT CAN BE DEEMED
'FUNDAMENTAL' OR 'IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY.'  PALKO
V. CONNECTICUT, 302 U.S. 319, 325 (1937)."  ROE V. WADE, 410 U.S. 113,
152 (1973).  THIS PRIVACY RIGHT ENCOMPASSES AND PROTECTS THE PERSONAL
INTIMACIES OF THE HOME, THE FAMILY, MARRIAGE, MOTHERHOOD, PROCREATION,
AND CHILD REARING.  CF. EISENSTADT V. BAIRD, 405 U.S. 438, 453 - 454
(1972); ID., AT 460, 463 - 465 (WHITE, J., CONCURRING); STANLEY V.
GEORGIA, SUPRA, AT 568; LOVING V. VIRGINIA, 388 U.S. 1, 12 (1967);
GRISWOLD V. CONNECTICUT, SUPRA, AT 486; PRINCE V. MASSACHUSETTS, 321
U.S. 158, 166 (1944); SKINNER V. OKLAHOMA, 316 U.S. 535, 541 (1942);
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, 535 (1925); MEYER V.
NEBRASKA, 262 U.S. 390, 399 (1923). 

[[HC66'(ORIGINAL DOCUMENT PAGE 66)'  NOTHING, HOWEVER, IN THIS
COURT'S DECISIONS INTIMATES THAT THERE IS ANY "FUNDAMENTAL" PRIVACY
RIGHT "IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY" TO WATCH OBSCENE
MOVIES IN PLACES OF PUBLIC ACCOMMODATION. 

IF OBSCENE MATERIAL UNPROTECTED BY THE FIRST AMENDMENT IN ITSELF
CARRIED WITH IT A "PENUMBRA" OF CONSTITUTIONALLY PROTECTED PRIVACY,
THIS COURT WOULD NOT HAVE FOUND IT NECESSARY TO DECIDE STANLEY ON THE
NARROW BASIS OF THE "PRIVACY OF THE HOME," WHICH WAS HARDLY MORE THAN A
REAFFIRMATION THAT "A MAN'S HOME IS HIS CASTLE."  CF. STANLEY V.
GEORGIA, SUPRA, AT 564.  /13/  MOREOVER, WE HAVE DECLINED TO EQUATE THE
PRIVACY OF THE HOME RELIED ON IN STANLEY WITH A "ZONE" OF "PRIVACY"
THAT FOLLOWS A DISTRIBUTOR OR A CONSUMER OF OBSCENE MATERIALS WHEREVER
HE GOES.  SEE UNITED STATES V. ORITO, POST, AT 141 - 143; UNITED STATES
V. 12 200-FT. REELS OF FILM, POST, AT 126 - 129; UNITED STATES V.
THIRTY-SEVEN PHOTOGRAPHS, 402 U.S., AT 376 - 377 (OPINION OF WHITE,
J.); UNITED STATES V. REIDEL, SUPRA, AT 355.  THE IDEA OF A "PRIVACY"
RIGHT AND A PLACE OF PUBLIC ACCOMMODATION ARE, IN THIS CONTEXT,
MUTUALLY EXCLUSIVE. 

[[HC67'(ORIGINAL DOCUMENT PAGE 67)'  CONDUCT OR DEPICTIONS OF
CONDUCT THAT THE STATE POLICE POWER CAN PROHIBIT ON A PUBLIC STREET DO
NOT BECOME AUTOMATICALLY PROTECTED BY THE CONSTITUTION MERELY BECAUSE
THE CONDUCT IS MOVED TO A BAR OR A "LIVE" THEATER STAGE, ANY MORE THAN
A "LIVE" PERFORMANCE OF A MAN AND WOMAN LOCKED IN A SEXUAL EMBRACE AT
HIGH NOON IN TIMES SQUARE IS PROTECTED BY THE CONSTITUTION BECAUSE THEY
SIMULTANEOUSLY ENGAGE IN A VALID POLITICAL DIALOGUE. 

IT IS ALSO ARGUED THAT THE STATE HAS NO LEGITIMATE INTEREST IN
"CONTROL (OF) THE MORAL CONTENT OF A PERSON'S THOUGHTS," STANLEY V.
GEORGIA, SUPRA, AT 565, AND WE NEED NOT QUARREL WITH THIS.  BUT WE
REJECT THE CLAIM THAT THE STATE OF GEORGIA IS HERE ATTEMPTING TO
CONTROL THE MINDS OR THOUGHTS OF THOSE WHO PATRONIZE THEATERS. 
PREVENTING UNLIMITED DISPLAY OR DISTRIBUTION OF OBSCENE MATERIAL, WHICH
BY DEFINITION LACKS ANY SERIOUS LITERARY, ARTISTIC, POLITICAL, OR
SCIENTIFIC VALUE AS COMMUNICATION, MILLER V. CALIFORNIA, ANTE, AT 24,
34, IS DISTINCT FROM A CONTROL OF REASON AND THE INTELLECT.  CF. KOIS
V. WISCONSIN, 408 U.S. 229 (1972); ROTH V. UNITED STATES, SUPRA, AT 485
- 487; THORNHILL V. ALABAMA, 310 U.S. 88, 101 - 102 (1940); FINNIS,
"REASON AND PASSION":  THE CONSTITUTIONAL DIALECTIC OF FREE SPEECH AND
OBSCENITY, 116 U. PA. L. REV. 222, 229 - 230, 241 - 243 (1967).  WHERE
COMMUNICATION OF IDEAS, PROTECTED BY THE FIRST AMENDMENT, IS NOT
INVOLVED, OR THE PARTICULAR PRIVACY OF THE HOME PROTECTED BY STANLEY,
OR ANY OF THE OTHER "AREAS OR ZONES" OF CONSTITUTIONALLY PROTECTED
PRIVACY, THE MERE FACT THAT, AS A CONSEQUENCE, SOME HUMAN "UTTERANCES"
OR "THOUGHTS" MAY BE INCIDENTALLY AFFECTED DOES NOT BAR THE STATE FROM
ACTING TO PROTECT LEGITIMATE STATE INTERESTS.  CF. ROTH V. UNITED
STATES, SUPRA, AT 483, 485 - 487; BEAUHARNAIS V. ILLINOIS, 343 U.S., AT
256 - 257.  THE FANTASIES OF A DRUG ADDICT ARE HIS OWN AND BEYOND THE
REACH OF GOVERNMENT, BUT GOVERNMENT REGULATION OF DRUG SALES IS NOT
PROHIBITED BY THE CONSTITUTION. 

[[HC68'(ORIGINAL DOCUMENT PAGE 68)'  CF. UNITED STATES V. REIDEL,
SUPRA, AT 359 - 360 (HARLAN, J., CONCURRING). 

FINALLY, PETITIONERS ARGUE THAT CONDUCT WHICH DIRECTLY INVOLVES
"CONSENTING ADULTS" ONLY HAS, FOR THAT SOLE REASON, A SPECIAL CLAIM TO
CONSTITUTIONAL PROTECTION.  OUR CONSTITUTION ESTABLISHES A BROAD RANGE
OF CONDITIONS ON THE EXERCISE OF POWER BY THE STATES, BUT FOR US TO SAY
THAT OUR CONSTITUTION INCORPORATES THE PROPOSITION THAT CONDUCT
INVOLVING CONSENTING ADULTS ONLY IS ALWAYS BEYOND STATE REGULATION,
/14/  IS A STEP WE ARE UNABLE TO TAKE.  /15/  COMMERCIAL EXPLOITATION
OF DEPICTIONS, DESCRIPTIONS, OR EXHIBITIONS OF OBSCENE CONDUCT ON
COMMERCIAL PREMISES OPEN TO THE ADULT PUBLIC FALLS WITHIN A STATE'S
BROAD POWER TO REGULATE COMMERCE AND PROTECT THE PUBLIC ENVIRONMENT. 

[[HC69'(ORIGINAL DOCUMENT PAGE 69)'  THE ISSUE IN THIS CONTEXT GOES
BEYOND WHETHER SOMEONE, OR EVEN THE MAJORITY, CONSIDERS THE CONDUCT
DEPICTED AS "WRONG" OR "SINFUL."  THE STATES HAVE THE POWER TO MAKE A
MORALLY NEUTRAL JUDGMENT THAT PUBLIC EXHIBITION OF OBSCENE MATERIAL, OR
COMMERCE IN SUCH MATERIAL, HAS A TENDENCY TO INJURE THE COMMUNITY AS A
WHOLE, TO ENDANGER THE PUBLIC SAFETY, OR TO JEOPARDIZE, IN MR. CHIEF
JUSTICE WARREN'S WORDS, THE STATES'"RIGHT . . . TO MAINTAIN A DECENT
SOCIETY."  JACOBELLIS V. OHIO, 378 U.S., AT 199 (DISSENTING OPINION). 

TO SUMMARIZE, WE HAVE TODAY REAFFIRMED THE BASIC HOLDING OF ROTH V.
UNITED STATES, SUPRA, THAT OBSCENE MATERIAL HAS NO PROTECTION UNDER THE
FIRST AMENDMENT.  SEE MILLER V. CALIFORNIA, SUPRA, AND KAPLAN V.
CALIFORNIA, POST, P. 115.  WE HAVE DIRECTED OUR HOLDINGS, NOT AT
THOUGHTS OR SPEECH, BUT AT DEPICTION AND DESCRIPTION OF SPECIFICALLY
DEFINED SEXUAL CONDUCT THAT STATES MAY REGULATE WITHIN LIMITS DESIGNED
TO PREVENT INFRINGEMENT OF FIRST AMENDMENT RIGHTS.  WE HAVE ALSO
REAFFIRMED THE HOLDINGS OF UNITED STATES V. RIEDEL, SUPRA, AND UNITED
STATES V. THIRTY-SEVEN PHOTOGRAPHS, SUPRA, THAT COMMERCE IN OBSCENE
MATERIAL IS UNPROTECTED BY ANY CONSTITUTIONAL DOCTRINE OF PRIVACY. 
UNITED STATES V. ORITO, POST, AT 141 - 143; UNITED STATES V. 12 200-FT.
REELS OF FILM, POST, AT 126 - 129.  IN THIS CASE WE HOLD THAT THE
STATES HAVE A LEGITIMATE INTEREST IN REGULATING COMMERCE IN OBSCENE
MATERIAL AND IN REGULATING EXHIBITION OF OBSCENE MATERIAL IN PLACES OF
PUBLIC ACCOMMODATION, INCLUDING SO-CALLED "ADULT" THEATERS FROM WHICH
MINORS ARE EXCLUDED.  IN LIGHT OF THESE HOLDINGS, NOTHING PRECLUDES THE
STATE OF GEORGIA FROM THE REGULATION OF THE ALLEGEDLY OBSCENE MATERIAL
EXHIBITED IN PARIS ADULT THEATRE I OR II, PROVIDED THAT THE APPLICABLE
GEORGIA LAW, AS WRITTEN OR AUTHORITATIVELY INTERPRETED BY THE GEORGIA
COURTS, MEETS THE FIRST AMENDMENT STANDARDS SET FORTH IN MILLER V.
CALIFORNIA, ANTE, AT 23 - 25.  THE JUDGMENT IS VACATED AND THE CASE
REMANDED TO THE GEORGIA SUPREME COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION AND MILLER V. CALIFORNIA, SUPRA. 

[[HC70'(ORIGINAL DOCUMENT PAGE 70)'  SEE UNITED STATES V. 12 200-FT.
REELS OF FILM, POST, AT 130 N. 7. 

              VACATED AND REMANDED. 

/1/  THIS IS A CIVIL PROCEEDING.  GEORGIA CODE ANN. ^ 26 - 2101
DEFINES A CRIMINAL OFFENSE, BUT THE EXHIBITION OF MATERIALS FOUND TO BE
"OBSCENE" AS DEFINED BY THAT STATUTE MAY BE ENJOINED IN A CIVIL
PROCEEDING UNDER GEORGIA CASE LAW.  1024 PEACHTREE CORP. V. SLATON, 228
GA. 102, 184 S.E.2D 144 (1971); WALTER V. SLATON, 227 GA. 676, 182
S.E.2D 464 (1971); EVANS THEATRE CORP. V. SLATON, 227 GA. 377, 180
S.E.2D 712 (1971).  SEE INFRA, AT 54.  GEORGIA CODE ANN. ^ 26 - 2101
READS IN RELEVANT PART: 

"DISTRIBUTING OBSCENE MATERIALS. 

"(A) A PERSON COMMITS THE OFFENSE OF DISTRIBUTING OBSCENE MATERIALS
WHEN HE SELLS, LENDS, RENTS, LEASES, GIVES, ADVERTISES, PUBLISHES,
EXHIBITS, OR OTHERWISE DISSEMINATES TO ANY PERSON ANY OBSCENE MATERIAL
OF ANY DESCRIPTION, KNOWING THE OBSCENE NATURE THEREOF, OR WHO OFFERS
TO DO SO, OR WHO POSSESSES SUCH MATERIAL WITH THE INTENT SO TO DO . . .
. 

"(B) MATERIAL IS OBSCENE IF CONSIDERED AS A WHOLE, APPLYING
COMMUNITY STANDARDS, ITS PREDOMINANT APPEAL IS TO PRURIENT INTEREST,
THAT IS, A SHAMEFUL OR MORBID INTEREST IN NUDITY, SEX OR EXCRETION, AND
UTTERLY WITHOUT REDEEMING SOCIAL VALUE AND IF, IN ADDITION, IT GOES
SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN DESCRIBING OR
REPRESENTING SUCH MATTERS.  . . . 

. . . 

"(D) A PERSON CONVICTED OF DISTRIBUTING OBSCENE MATERIAL SHALL FOR
THE FIRST OFFENSE BE PUNISHED AS FOR A MISDEMEANOR, AND FOR ANY
SUBSEQUENT OFFENSE SHALL BE PUNISHED BY IMPRISONMENT FOR NOT LESS THAN
ONE NOR MORE THAN FIVE YEARS, OR BY A FINE NOT TO EXCEED $5,000, OR
BOTH." 

THE CONSTITUTIONALITY OF GEORGIA CODE ANN. ^ 26 - 2101 WAS UPHELD
AGAINST FIRST AMENDMENT AND DUE PROCESS CHALLENGES IN GABLE V. JENKINS,
309 F.SUPP.  998 (ND GA. 1969), AFF'D PER CURIAM, 397 U.S. 592 (1970). 

/2/  SEE GEORGIA CODE ANN. ^ 26 - 2101, SET OUT SUPRA, AT 51 N. 1. 

/3/  IN WALTER V. SLATON, 227 GA. 676, 182 S.E.2D 464 (1971), THE
GEORGIA SUPREME COURT DESCRIBED THE CASES BEFORE IT AS FOLLOWS:  "EACH
CASE WAS COMMENCED AS A CIVIL ACTION BY THE DISTRICT ATTORNEY OF THE
SUPERIOR COURT OF FULTON COUNTY JOINTLY WITH THE SOLICITOR OF THE
CRIMINAL COURT OF FULTON COUNTY.  IN EACH CASE THE PLAINTIFFS ALLEGED
THAT THE DEFENDANTS NAMED THEREIN WERE CONDUCTING A BUSINESS OF
EXHIBITING MOTION PICTURE FILMS TO MEMBERS OF THE PUBLIC; THAT THEY
WERE IN CONTROL AND POSSESSION OF THE DESCRIBED MOTION PICTURE FILM
WHICH THEY WERE EXHIBITING TO THE PUBLIC ON A FEE BASIS; THAT SAID FILM
'CONSTITUTES A FLAGRANT VIOLATION OF GA. CODE ^ 26 - 2101 IN THAT THE
SOLE AND DOMINANT THEME OF THE MOTION PICTURE FILM . . . CONSIDERED AS
A WHOLE, AND APPLYING CONTEMPORARY STANDARDS, APPEALS TO THE PRURIENT
INTEREST IN SEX AND NUDITY, AND THAT SAID MOTION PICTURE FILM IS
UTTERLY AND ABSOLUTELY WITHOUT ANY REDEEMING SOCIAL VALUE WHATSOEVER
AND TRANSGRESSES BEYOND THE CUSTOMARY LIMITS OF CANDOR IN DESCRIBING
AND DISCUSSING SEXUAL MATTERS.'"  ID., AT 676 - 677, 182 S.E.2D, AT
465. 

/4/  THIS PROCEDURE WOULD HAVE EVEN MORE MERIT IF THE EXHIBITOR OR
PURVEYOR COULD ALSO TEST THE ISSUE OF OBSCENITY IN A SIMILAR CIVIL
ACTION, PRIOR TO ANY EXPOSURE TO CRIMINAL PENALTY.  WE ARE NOT HERE
PRESENTED WITH THE PROBLEM OF WHETHER A HOLDING THAT MATERIALS WERE NOT
OBSCENE COULD BE CIRCUMVENTED IN A LATER PROCEEDING BY EVIDENCE OF
PANDERING.  SEE MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 458 N. 3 (1966)
(HARLAN, J., DISSENTING); GINZBURG V. UNITED STATES, 383 U.S. 463, 496
(1966) (HARLAN, J., DISSENTING). 

/5/  AT THE SPECIFIC REQUEST OF PETITIONERS' COUNSEL, THE COPIES OF
THE FILMS PRODUCED FOR THE TRIAL COURT WERE PLACED IN THE
"ADMINISTRATIVE CUSTODY" OF THAT COURT PENDING THE OUTCOME OF THIS
LITIGATION. 

/6/  THIS IS NOT A SUBJECT THAT LENDS ITSELF TO THE TRADITIONAL USE
OF EXPERT TESTIMONY.  SUCH TESTIMONY IS USUALLY ADMITTED FOR THE
PURPOSE OF EXPLAINING TO LAY JURORS WHAT THEY OTHERWISE COULD NOT
UNDERSTAND.  CF. 2 J. WIGMORE, EVIDENCE ^^ 556, 559 (3D ED. 1940).  NO
SUCH ASSISTANCE IS NEEDED BY JURORS IN OBSCENITY CASES; INDEED THE
"EXPERT WITNESS" PRACTICES EMPLOYED IN THESE CASES HAVE OFTEN MADE A
MOCKERY OUT OF THE OTHERWISE SOUND CONCEPT OF EXPERT TESTIMONY.  SEE
UNITED STATES V. GRONER, 479 F.2D 577, 585 - 586 (CA5 1973); ID., AT
587 - 588 (AINSWORTH, J., CONCURRING).  "SIMPLY STATED, HARD CORE
PORNOGRAPHY . . . CAN AND DOES SPEAK FOR ITSELF."  UNITED STATES V.
WILD, 422 F.2D 34, 36 (CA2 1970), CERT. DENIED, 402 U.S. 986 (1971). 
WE RESERVE JUDGMENT, HOWEVER, ON THE EXTREME CASE, NOT PRESENTED HERE,
WHERE CONTESTED MATERIALS ARE DIRECTED AT SUCH A BIZARRE DEVIANT GROUP
THAT THE EXPERIENCE OF THE TRIER OF FACT WOULD BE PLAINLY INADEQUATE TO
JUDGE WHETHER THE MATERIAL APPEALS TO THE PRURIENT INTEREST.  SEE
MISHKIN V. NEW YORK, 383 U.S. 502, 508 - 510 (1966); UNITED STATES V.
KLAW, 350 F.2D 155, 167 - 168 (CA2 1965). 

/7/  IT IS CONCEIVABLE THAT AN "ADULT" THEATER CAN--IF IT REALLY
INSISTS--PREVENT THE EXPOSURE OF ITS OBSCENE WARES TO JUVENILES.  AN
"ADULT" BOOKSTORE, DEALING IN OBSCENE BOOKS, MAGAZINES, AND PICTURES,
CANNOT REALISTICALLY MAKE THIS CLAIM.  THE HILL-LINK MINORITY REPORT OF
THE COMMISSION ON OBSCENITY AND PORNOGRAPHY EMPHASIZES EVIDENCE (THE
ABELSON NATIONAL SURVEY OF YOUTH AND ADULTS) THAT, ALTHOUGH MOST
PORNOGRAPHY MAY BE BOUGHT BY ELDERS, "THE HEAVY USERS AND MOST HIGHLY
EXPOSED PEOPLE TO PORNOGRAPHY ARE ADOLESCENT FEMALES (AMONG FEMALES)
AND ADOLESCENT AND YOUNG ADULT MALES (AMONG MALES)."  THE REPORT OF THE
COMMISSION ON OBSCENITY AND PORNOGRAPHY 401 (1970).  THE LEGITIMATE
INTEREST IN PREVENTING EXPOSURE OF JUVENILES TO OBSCENE MATERIAL CANNOT
BE FULLY SERVED BY SIMPLY BARRING JUVENILES FROM THE IMMEDIATE PHYSICAL
PREMISES OF "ADULT" BOOKSTORES, WHEN THERE IS A FLOURISHING "OUTSIDE
BUSINESS"  IN THESE MATERIALS. 

/8/  THE REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY 390 -
412 (1970) (HILL-LINK MINORITY REPORT).  FOR A DISCUSSION OF EARLIER
STUDIES INDICATING "A DIVISION OF THOUGHT (AMONG BEHAVIORAL SCIENTISTS)
ON THE CORRELATION BETWEEN OBSCENITY AND SOCIALLY DELETERIOUS
BEHAVIOR,' MEMOIRS V. MASSACHUSETTS, SUPRA, AT 451, AND REFERENCES TO
EXPERT OPINIONS THAT OBSCENE MATERIAL MAY INDUCE CRIME AND ANTISOCIAL
CONDUCT, SEE ID., AT 451 - 453 (CLARK, J., DISSENTING).  MR. JUSTICE
CLARK EMPHASIZED:  "WHILE EROTIC STIMULATION CAUSED BY PORNOGRAPHY MAY
BE LEGALLY INSIGNIFICANT IN ITSELF, THERE ARE MEDICAL EXPERTS WHO
BELIEVE THAT SUCH STIMULATION FREQUENTLY MANIFESTS ITSELF IN CRIMINAL
SEXUAL BEHAVIOR OR OTHER ANTISOCIAL CONDUCT.  FOR EXAMPLE, DR. GEORGE
W. HENRY OF CORNELL UNIVERSITY HAS EXPRESSED THE OPINION THAT
OBSCENITY, WITH ITS EXAGGERATED AND MORBID EMPHASIS ON SEX,
PARTICULARLY ABNORMAL AND PERVERTED PRACTICES, AND ITS UNREALISTIC
PRESENTATION OF SEXUAL BEHAVIOR AND ATTITUDES, MAY INDUCE ANTISOCIAL
CONDUCT BY THE AVERAGE PERSON.  A NUMBER OF SOCIOLOGISTS THINK THAT
THIS MATERIAL MAY HAVE ADVERSE EFFECTS UPON INDIVIDUAL MENTAL HEALTH,
WITH POTENTIALLY DISRUPTIVE CONSEQUENCES FOR THE COMMUNITY.  . . . 

"CONGRESS AND THE LEGISLATURES OF EVERY STATE HAVE ENACTED MEASURES
TO RESTRICT THE DISTRIBUTION OF EROTIC AND PORNOGRAPHIC MATERIAL,
JUSTIFYING THESE CONTROLS BY REFERENCE TO EVIDENCE THAT ANTISOCIAL
BEHAVIOR MAY RESULT IN PART FROM READING OBSCENITY."  ID., AT 452 - 453
(FOOTNOTES OMITTED). 

/9/  SEE ALSO BERNS, PORNOGRAPHY VS. DEMOCRACY:  THE CASE FOR
CENSORSHIP, IN 22 THE PUBLIC INTEREST 3 (WINTER 1971); VAN DEN HAAG, IN
CENSORSHIP:  FOR & AGAINST 156 - 157 (H. HART ED. 1971). 

/10/  "IN THIS AND OTHER CASES IN THIS AREA OF THE LAW, WHICH ARE
COMING TO US IN EVER-INCREASING NUMBERS, WE ARE FACED WITH THE
RESOLUTION OF RIGHTS BASIC BOTH TO INDIVIDUALS AND TO SOCIETY AS A
WHOLE.  SPECIFICALLY, WE ARE CALLED UPON TO RECONCILE THE RIGHT OF THE
NATION AND OF THE STATES TO MAINTAIN A DECENT SOCIETY AND, ON THE OTHER
HAND, THE RIGHT OF INDIVIDUALS TO EXPRESS THEMSELVES FREELY IN
ACCORDANCE WITH THE GUARANTEES OF THE FIRST AND FOURTEENTH
AMENDMENTS."  JACOBELLIS V. OHIO, SUPRA, AT 199 (WARREN, C. J.,
DISSENTING). 

/11/  MR. JUSTICE HOLMES STATED IN ANOTHER CONTEXT, THAT: "(THE
PROPER COURSE IS TO RECOGNIZE THAT A STATE LEGISLATURE CAN DO WHATEVER
IT SEES FIT TO DO UNLESS IT IS RESTRAINED BY SOME EXPRESS PROHIBITION
IN THE CONSTITUTION OF THE UNITED STATES OR OF THE STATE, AND THAT
COURTS SHOULD BE CAREFUL NOT TO EXTEND SUCH PROHIBITONS BEYOND THEIR
OBVIOUS MEANING BY READING INTO THEM CONCEPTIONS OF PUBLIC POLICY THAT
THE PARTICULAR COURT MAY HAPPEN TO ENTERTAIN."  TYSON & BROTHER V.
BANTON, 273 U.S. 418, 446 (1927) (DISSENTING OPINION JOINED BY
BRANDEIS, J.). 

/12/  "IT HAS BEEN WELL OBSERVED THAT SUCH (LEWD AND OBSCENE)
UTTERANCES ARE NO ESSENTIAL PART OF ANY EXPOSITION OF IDEAS, AND ARE OF
SUCH SLIGHT SOCIAL VALUE AS A STEP TO TRUTH THAT ANY BENEFIT THAT MAY
BE DERIVED FROM THEM IS CLEARLY OUTWEIGHED BY THE SOCIAL INTEREST IN
ORDER AND MORALITY."  ROTH V. UNITED STATES, 354 U.S. 476, 485 (1957),
QUOTING CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572 (1942) (EMPHASIS
ADDED IN ROTH). 

/13/  THE PROTECTION AFFORDED BY STANLEY V. GEORGIA, 394 U.S. 557,
(1969), IS RESTRICTED TO A PLACE, THE HOME.  IN CONTRAST, THE
CONSTITUTIONALLY PROTECTED PRIVACY OF FAMILY, MARRIAGE, MOTHERHOOD,
PROCREATION, AND CHILD REARING IS NOT JUST CONCERNED WITH A PARTICULAR
PLACE, BUT WITH A PROTECTED INTIMATE RELATIONSHIP.  SUCH PROTECTED
PRIVACY EXTENDS TO THE DOCTOR'S OFFICE, THE HOSPITAL, THE HOTEL ROOM,
OR AS OTHERWISE REQUIRED TO SAFEGUARD THE RIGHT TO INTIMACY INVOLVED. 
CF. ROE V. WADE, 410 U.S. 113, 152 - 154 (1973); GRISWOLD V.
CONNECTICUT, 381 U.S. 479, 485 - 486 (1965).  OBVIOUSLY, THERE IS NO
NECESSARY OR LEGITIMATE EXPECTATION OF PRIVACY WHICH WOULD EXTEND TO
MARITAL INTERCOURSE ON A STREET CORNER OR A THEATER STAGE. 

/14/  CF. J. MILL, ON LIBERTY 13 (1955 ED.). 

/15/  THE STATE STATUTE BOOKS ARE REPLETE WITH CONSTITUTIONALLY
UNCHALLENGED LAWS AGAINST PROSTITUTION, SUICIDE, VOLUNTARY SELF
MUTILATION, BRUTALIZING "BARE FIST" PRIZE FIGHTS, AND DUELS, ALTHOUGH
THESE CRIMES MAY ONLY DIRECTLY INVOLVE "CONSENTING ADULTS."  STATUTES
MAKING BIGAMY A CRIME SURELY CUT INTO AN INDIVIDUAL'S FREEDOM TO
ASSOCIATE, BUT FEW TODAY SERIOUSLY CLAIM SUCH STATUTES VIOLATE THE
FIRST AMENDMENT OR ANY OTHER CONSTITUTIONAL PROVISION.  SEE DAVIS V.
BEASON, 133 U.S. 333, 344 - 345 (1890).  CONSIDER ALSO THE LANGUAGE OF
THIS COURT IN MC LAUGHLIN V. FLORIDA, 379 U.S. 184, 196 (1964), AS TO
ADULTERY; SOUTHERN SURETY CO. V. OKLAHOMA, 241 U.S. 582, 586 (1916), AS
TO FORNICATION; HOKE V. UNITED STATES, 227 U.S. 308, 320 - 322 (1913),
AND CAMINETTI V. UNITED STATES, 242 U.S. 470, 484 - 487, 491 - 492
(1917), AS TO "WHITE SLAVERY"; MURPHY V. CALIFORNIA, 225 U.S. 623, 629
(1912), AS TO BILLIARD HALLS; AND THE LOTTERY CASE, 188 U.S. 321, 355 -
356 (1903), AS TO GAMBLING.  SEE ALSO THE SUMMARY OF STATE STATUTES
PROHIBITING BEAR BAITING, COCK-FIGHTING, AND OTHER BRUTALIZING ANIMAL
"SPORTS," IN STEVENS, FIGHTING AND BAITING, IN ANIMALS AND THEIR LEGAL
RIGHTS 112 - 117 (LEAVITT ED. 1970).  AS PROFESSOR IRVING KRISTOL HAS
OBSERVED:  "BEARBAITING AND COCKFIGHTING ARE PROHIBITED ONLY IN PART
OUT OF COMPASSION FOR THE SUFFERING ANIMALS; THE MAIN REASON THEY WERE
ABOLISHED WAS BECAUSE IT WAS FELT THAT THEY DEBASED AND BRUTALIZED THE
CITIZENRY WHO FLOCKED TO WITNESS SUCH SPECTACLES."  ON THE DEMOCRATIC
IDEA IN AMERICA 33 (1972). 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING. 

MY BROTHER BRENNAN IS TO BE COMMENDED FOR SEEKING A NEW PATH THROUGH
THE THICKET WHICH THE COURT ENTERED WHEN IT UNDERTOOK TO SUSTAIN THE
CONSTITUTIONALITY OF OBSCENITY LAWS AND TO PLACE LIMITS ON THEIR
APPLICATION.  I HAVE EXPRESSED ON NUMEROUS OCCASIONS MY DISAGREEMENT
WITH THE BASIC DECISION THAT HELD THAT "OBSCENITY" WAS NOT PROTECTED BY
THE FIRST AMENDMENT.  I DISAGREED ALSO WITH THE DEFINITIONS THAT
EVOLVED.  ART AND LITERATURE REFLECT TASTES; AND TASTES, LIKE MUSICAL
APPRECIATION, ARE HARDLY REDUCIBLE TO PRECISE DEFINITIONS.  THAT IS ONE
REASON I HAVE ALWAYS FELT THAT "OBSCENITY" WAS NOT AN EXCEPTION TO THE
FIRST AMENDMENT.  FOR MATTERS OF TASTE, LIKE MATTERS OF BELIEF, TURN ON
THE IDIOSYNCRASIES OF INDIVIDUALS.  THEY ARE TOO PERSONAL TO DEFINE AND
TOO EMOTIONAL AND VAGUE TO APPLY, AS WITNESS THE PRISON TERM FOR RALPH
GINZBURG, GINZBURG V. UNITED STATES, 383 U.S. 463, NOT FOR WHAT HE
PRINTED BUT FOR THE SEXY MANNER IN WHICH HE ADVERTISED HIS CREATIONS. 
THE OTHER REASON I COULD NOT BRING MYSELF TO CONCLUDE THAT
"OBSCENITY"  WAS NOT COVERED BY THE FIRST AMENDMENT WAS THAT PRIOR TO
THE ADOPTION OF OUR CONSTITUTION AND BILL OF RIGHTS THE COLONIES HAD NO
LAW EXCLUDING "OBSCENITY" FROM THE REGIME OF FREEDOM OF EXPRESSION AND
PRESS THAT THEN EXISTED.  I COULD FIND NO SUCH LAWS; AND MORE
IMPORTANT, OUR LEADING COLONIAL EXPERT, JULIUS GOEBEL, COULD FIND NONE,
J. GOEBEL, DEVELOPMENT OF LEGAL INSTITUTIONS (1946); J. GOEBEL, FELONY
AND MISDEMEANOR (1937).  SO I BECAME CONVINCED THAT THE CREATION OF THE
"OBSCENITY" EXCEPTION TO THE FIRST AMENDMENT WAS A LEGISLATIVE AND
JUDICIAL TOUR DE FORCE; THAT IF WE WERE TO HAVE SUCH A REGIME OF
CENSORSHIP AND PUNISHMENT, IT SHOULD BE DONE BY CONSTITUTIONAL
AMENDMENT. 

[[HC71'(ORIGINAL DOCUMENT PAGE 71)' 

PEOPLE ARE, OF COURSE, OFFENDED BY MANY OFFERINGS MADE BY MERCHANTS
IN THIS AREA.  THEY ARE ALSO OFFENDED BY POLITICAL PRONOUNCEMENTS,
SOCIOLOGICAL THEMES, AND BY STORIES OF OFFICIAL MISCONDUCT.  THE LIST
OF ACTIVITIES AND PUBLICATIONS AND PRONOUNCEMENTS THAT OFFEND SOMEONE
IS ENDLESS.  SOME OF IT GOES ON IN PRIVATE; SOME OF IT IS INESCAPABLY
PUBLIC, AS WHEN A GOVERNMENT OFFICIAL GENERATES CRIME, BECOMES A
BLATANT OFFENDER OF THE MORAL SENSIBILITIES OF THE PEOPLE, ENGAGES IN
BURGLARY, OR BREACHES THE PRIVACY OF THE TELEPHONE, THE CONFERENCE
ROOM, OR THE HOME.  LIFE IN THIS CROWDED MODERN TECHNOLOGICAL WORLD
CREATES MANY OFFENSIVE STATEMENTS AND MANY OFFENSIVE DEEDS.  THERE IS
NO PROTECTION AGAINST OFFENSIVE IDEAS, ONLY AGAINST OFFENSIVE CONDUCT. 

"OBSCENITY" AT MOST IS THE EXPRESSION OF OFFENSIVE IDEAS.  THERE ARE
REGIMES IN THE WORLD WHERE IDEAS "OFFENSIVE" TO THE MAJORITY (OR AT
LEAST TO THOSE WHO CONTROL THE MAJORITY) ARE SUPPRESSED.  THERE LIFE
PROCEEDS AT A MONOTONOUS PACE.  MOST OF US WOULD FIND THAT WORLD
OFFENSIVE.  ONE OF THE MOST OFFENSIVE EXPERIENCES IN MY LIFE WAS A
VISIT TO A NATION WHERE BOOKSTALLS WERE FILLED ONLY WITH BOOKS ON
MATHEMATICS AND BOOKS ON RELIGION. 

I AM SURE I WOULD FIND OFFENSIVE MOST OF THE BOOKS AND MOVIES
CHARGED WITH BEING OBSCENE.  BUT IN A LIFE THAT HAS NOT BEEN SHORT, I
HAVE YET TO BE TRAPPED INTO SEEING OR READING SOMETHING THAT WOULD
OFFEND ME.  I NEVER READ OR SEE THE MATERIALS COMING TO THE COURT UNDER
CHARGES OF "OBSCENITY," BECAUSE I HAVE THOUGHT THE FIRST AMENDMENT MADE
IT UNCONSTITUTIONAL FOR ME TO ACT AS A CENSOR.  I SEE ADS IN BOOKSTORES
AND NEON LIGHTS OVER THEATERS THAT RESEMBLE BAIT FOR THOSE WHO SEEK
VICARIOUS EXHILARATION. 

[[HC72'(ORIGINAL DOCUMENT PAGE 72)'  AS A PARENT OR A PRIEST OR AS A
TEACHER I WOULD HAVE NO COMPUNCTION IN EDGING MY CHILDREN OR WARDS AWAY
FROM THE BOOKS AND MOVIES THAT DID NO MORE THAN EXCITE MAN'S BASE
INSTINCTS.  BUT I NEVER SUPPOSED THAT GOVERNMENT WAS PERMITTED TO SIT
IN JUDGMENT ON ONE'S TASTES OR BELIEFS--SAVE AS THEY INVOLVED ACTION
WITHIN THE REACH OF THE POLICE POWER OF GOVERNMENT. 

I APPLAUD THE EFFORT OF MY BROTHER BRENNAN TO FORSAKE THE LOW ROAD
WHICH THE COURT HAS FOLLOWED IN THIS FIELD.  THE NEW REGIME HE WOULD
INAUGURATE IS MUCH CLOSER THAN THE OLD TO THE POLICY OF ABSTENTION
WHICH THE FIRST AMENDMENT PROCLAIMS.  BUT SINCE WE DO NOT HAVE HERE THE
UNIQUE SERIES OF PROBLEMS RASIED BY GOVERNMENT-IMPOSED OR GOVERNMENT
APPROVED CAPTIVE AUDIENCES, CF. PUBLIC UTILITIES COMM'N V. POLLAK, 343
U.S. 451, I SEE NO CONSTITUTIONAL BASIS FOR FASHIONING A RULE THAT
MAKES A PUBLISHER, PRODUCER, BOOKSELLER, LIBRARIAN, OR MOVIE HOUSE
CRIMINALLY RESPONSIBLE, WHEN HE FAILS TO TAKE AFFIRMATIVE STEPS TO
PROTECT THE CONSUMER AGAINST LITERATURE OR BOOKS OFFENSIVE /1/  TO
THOSE WHO TEMPORARILY OCCUPY THE SEATS OF THE MIGHTY. 

WHEN MAN WAS FIRST IN THE JUNGLE HE TOOK CARE OF HIMSELF. 

[[HC73'(ORIGINAL DOCUMENT PAGE 73)'  WHEN HE ENTERED A SOCIETAL
GROUP, CONTROLS WERE NECESSARILY IMPOSED.  BUT OUR SOCIETY--UNLIKE MOST
IN THE WORLD--PRESUPPOSES THAT FREEDOM AND LIBERTY ARE IN A FRAME OF
REFERENCE THAT MAKES THE INDIVIDUAL, NOT GOVERNMENT, THE KEEPER OF HIS
TASTES, BELIEFS, AND IDEAS.  THAT IS THE PHILOSOPHY OF THE FIRST
AMENDMENT; AND IT IS THE ARTICLE OF FAITH THAT SETS US APART FROM MOST
NATIONS IN THE WORLD. 

[[DFN 

/1/  WHAT WE DO TODAY IS RATHER OMINOUS AS RESPECTS LIBRARIANS.  THE
NET NOW DESIGNED BY THE COURT IS SO FINELY MESHED THAT, TAKEN
LITERALLY, IT COULD RESULT IN RAIDS ON LIBRARIES.  LIBRARIES, I HAD
ALWAYS ASSUMED, WERE SACROSANCT, REPRESENTING EVERY PART OF THE
SPECTRUM.  IF WHAT IS OFFENSIVE TO THE MOST INFLUENTIAL PERSON OR GROUP
IN A COMMUNITY CAN BE PURGED FROM A LIBRARY, THE LIBRARY SYSTEM WOULD
BE DESTROYED. 

A FEW STATES EXEMPT LIBRARIANS FROM LAWS CURBING DISTRIBUTION OF
"OBSCENE" LITERATURE.  CALIFORNIA'S LAW, HOWEVER, PROVIDES:  "EVERY
PERSON WHO, WITH KNOWLEDGE THAT A PERSON IS A MINOR, OR WHO FAILS TO
EXERCISE REASONABLE CARE IN ASCERTAINING THE TRUE AGE OF A MINOR,
KNOWINGLY DISTRIBUTES TO OR SENDS OR CAUSES TO BE SENT TO, OR EXHIBITS
TO, OR OFFERS TO DISTRIBUTE OR EXHIBIT ANY HARMFUL MATTER TO A MINOR,
IS GUILTY OF A MISDEMEANOR."  CALIF. PENAL CODE ^ 313.1. 

A "MINOR" IS ONE UNDER 18 YEARS OF AGE; THE WORD "DISTRIBUTE" MEANS
"TO TRANSFER POSSESSION"; "MATTER" INCLUDES "ANY BOOK, MAGAZINE,
NEWSPAPER, OR OTHER PRINTED OR WRITTEN MATERIAL."  ID., ^^ 313 (B),
(D), (G). 

"HARMFUL MATTER" IS DEFINED IN ^ 313 (A) TO MEAN "MATTER, TAKEN AS A
WHOLE, THE PREDOMINANT APPEAL OF WHICH TO THE AVERAGE PERSON, APPLYING
CONTEMPORARY STANDARDS, IS TO PRURIENT INTEREST, I. E., A SHAMEFUL OR
MORBID INTEREST IN NUDITY, SEX, OR EXCRETION; AND IS MATTER WHICH TAKEN
AS A WHOLE GOES SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN
DESCRIPTION OR REPRESENTATION OF SUCH MATTERS; AND IS MATTER WHICH
TAKEN AS A WHOLE IS UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE FOR
MINORS." 

[[DOP 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THIS CASE REQUIRES THE COURT TO CONFRONT ONCE AGAIN THE VEXING
PROBLEM OF RECONCILING STATE EFFORTS TO SUPPRESS SEXUALLY ORIENTED
EXPRESSION WITH THE PROTECTIONS OF THE FIRST AMENDMENT, AS APPLIED TO
THE STATES THROUGH THE FOURTEENTH AMENDMENT.  NO OTHER ASPECT OF THE
FIRST AMENDMENT HAS, IN RECENT YEARS, DEMANDED SO SUBSTANTIALLY A
COMMITMENT OF OUR TIME, GENERATED SUCH DISHARMONY OF VIEWS, AND
REMAINED SO RESISTANT TO THE FORMULATION OF STABLE AND MANAGEABLE
STANDARDS.  I AM CONVINCED THAT THE APPROACH INITIATED 16 YEARS AGO IN
ROTH V. UNITED STATES, 354 U.S. 476 (1957), AND CULMINATING IN THE
COURT'S DECISION TODAY, CANNOT BRING STABILITY TO THIS AREA OF THE LAW
WITHOUT JEOPARDIZING FUNDAMENTAL FIRST AMENDMENT VALUES, AND I HAVE
CONCLUDED THAT THE TIME HAS COME TO MAKE A SIGNIFICANT DEPARTURE FROM
THAT APPROACH. 

[[HC74'(ORIGINAL DOCUMENT PAGE 74)' 

IN THIS CIVIL ACTION IN THE SUPERIOR COURT OF FULTON COUNTY, THE
STATE OF GEORGIA SOUGHT TO ENJOIN THE SHOWING OF TWO MOTIONS PICTURES,
IT ALL COMES OUT IN THE END, AND MAGIC MIRROR, AT THE PARIS ADULT
THEATRES (I AND II) IN ATLANTA, GEORGIA.  THE STATE ALLEGED THAT THE
FILMS WERE OBSCENE UNDER THE STANDARDS SET FORTH IN GEORGIA CODE ANN. ^
26 - 2101.  /1/  THE TRIAL COURT DENIED INJUNCTIVE RELIEF, HOLDING THAT
EVEN THOUGH THE FILMS COULD BE CONSIDERED OBSCENE, THEIR COMMERCIAL
PRESENTATION COULD NOT CONSTITUTIONALLY BE BARRED IN THE ABSENCE OF
PROOF THAT THEY WERE SHOWN TO MINORS OR UNCONSENTING ADULTS. 
REVERSING, THE SUPREME COURT OF GEORGIA FOUND THE FILMS OBSCENE, AND
HELD THAT THE CARE TAKEN TO AVOID EXPOSURE TO MINORS AND UNCONSENTING
ADULTS WAS WITHOUT CONSTITUTIONAL SIGNIFICANCE. 

        I 

THE PARIS ADULT THEATRES ARE TWO COMMERCIAL CINEMAS, LINKED BY A
COMMON BOX OFFICE AND LOBBY, ON PEACHTREE STREET IN ATLANTA, GEORGIA. 
ON DECEMBER 28, 1970, INVESTIGATORS EMPLOYED BY THE CRIMINAL COURT OF
FULTON COUNTY ENTERED THE THEATERS AS PAYING CUSTOMERS AND VIEWED EACH
OF THE FILMS WHICH ARE THE SUBJECT OF THIS ACTION.  THEREAFTER, TWO
SEPARATE COMPLAINTS, ONE FOR EACH OF THE TWO FILMS, WERE FILED IN THE
SUPREME COURT SEEKING A DECLARATION THAT THE FILMS WERE OBSCENE AND AN
INJUNCTION AGAINST THEIR CONTINUED PRESENTATION TO THE PUBLIC. 

[[HC75'(ORIGINAL DOCUMENT PAGE 75)'  THE COMPLAINTS ALLEGED THAT THE
FILMS WERE "A FLAGRANT VIOLATION OF GEORGIA CODE SECTION 26 - 2101 IN
THAT THE SOLE AND DOMINANT THEMES) OF THE SAID MOTION PICTURE FILMS)
CONSIDERED AS A WHOLE AND APPLYING CONTEMPORARY COMMUNITY STANDARDS
(APPEAL) TO THE PRURIENT INTEREST IN SEX, NUDITY, AND EXCRETION, AND
THAT THE SAID MOTION PICTURE FILMS ARE) UTTERLY AND ABSOLUTELY WITHOUT
ANY REDEEMING SOCIAL VALUE WHATSOEVER, AND (TRANGRESS) BEYOND THE
CUSTOMARY LIMITS OF CANDOR IN DESCRIBING AND DISCUSSING SEXUAL
MATTERS."  APP. 20, 39. 

ALTHOUGH THE LANGUAGE OF THE COMPLAINTS ROUGHLY TRACKED THE LANGUAGE
OF ^ 26 - 2101, WHICH IMPOSES CRIMINAL PENALTIES ON PERSONS WHO
KNOWINGLY DISTRIBUTE OBSCENE MATERIALS, /2/  THIS PROCEEDING WAS NOT
BROUGHT PURSUANT TO THAT STATUTE.  INSTEAD, THE STATE INITIATED A
NONSTATUTORY CIVIL PROCEEDING TO DETERMINE THE OBSCENITY OF THE FILMS
AND TO ENJOIN THEIR EXHIBITION.  WHILE THE PARTIES WAIVED JURY TRIAL
AND STIPULATED THAT THE DECISION OF THE TRIAL COURT WOULD BE FINAL ON
THE ISSUE OF OBSCENITY, THE STATE HAS NOT INDICATED WHETHER IT INTENDS
TO BRING A CRIMINAL ACTION UNDER THE STATUTE IN THE EVENT THAT IT
SUCCEEDS IN PROVING THE FILMS OBSCENE. 

UPON THE FILING OF THE COMPLAINTS, THE TRIAL COURT SCHEDULED A
HEARING FOR JANUARY 13, 1971, AND ENTERED AN ORDER TEMPORARILY
RESTRAINING THE DEFENDANTS FROM CONCEALING, DESTROYING, ALTERING, OR
REMOVING THE FILMS FROM THE JURISDICTION, BUT NOT FROM EXHIBITING THE
FILMS TO THE PUBLIC PENDENTE LITE. 

[[HC76'(ORIGINAL DOCUMENT PAGE 76)'  IN ADDITION TO VIEWING THE
FILMS AT THE HEARING, THE TRIAL COURT HEARD THE TESTIMONY OF WITNESSES
AND ADMITTED INTO EVIDENCE PHOTOGRAPHS THAT WERE STIPULATED TO DEPICT
ACCURATELY THE FACADE OF THE THEATER.  THE WITNESSES TESTIFIED THAT THE
EXTERIOR OF THE THEATER WAS ADORNED WITH PROMINENT SIGNS READING
"ADULTS ONLY," "YOU MUST BE 21 AND ABLE TO PROVE IT," AND "IF THE NUDE
BODY OFFENDS YOU, DO NOT ENTER."  NOTHING ON THE OUTSIDE OF THE THEATER
TO DRAW THE ATTENTION OF PASSERSBY TO THE CONTENTS OF THE FILMS.  THE
ADMISSION CHARGE TO THE THEATERS WAS $3.  THE TRIAL COURT HEARD NO
EVIDENCE THAT MINORS HAD EVER ENTERED THE THEATER, BUT ALSO HEARD NO
EVIDENCE THAT PETITIONERS HAD ENFORCED A SYSTEMATIC POLICY OF SCREENING
OUT MINORS (APART FROM THE POSTING OF THE NOTICES REFERRED TO ABOVE). 

ON THE BASIS OF THE EVIDENCE SUBMITTED, THE TRIAL COURT CONCLUDED THAT
THE FILMS COULD FAIRLY BE CONSIDERED OBSCENE "(ASSUMING THAT OBSCENITY
IS ESTABLISHED BY A FINDING THAT THE ACTORS CAVORTED ABOUT IN THE NUDE
INDISCRIMINATELY," BUT HELD, NONETHELESS, THAT "THE DISPLAY OF THESE
FILMS IN A COMMERCIAL THEATRE, WHEN SURROUNDED BY REQUISITE NOTICE TO
THE PUBLIC OF THEIR NATURE AND BY REASONABLE PROTECTION AGAINST THE
EXPOSURE OF THESE FILMS TO MINORS, IS CONSTITUTIONALLY PERMISSIBLE." 
/3/  SINCE THE ISSUE DID NOT ARISE IN A STATUTORY PROCEEDING, THE TRIAL
COURT WAS NOT REQUIRED TO PASS UPON THE CONSTITUTIONALITY OF ANY STATE
STATUTE, ON ITS FACE OR AS APPLIED, IN DENYING THE INJUNCTION SOUGHT BY
THE STATE. 

[[HC77'(ORIGINAL DOCUMENT PAGE 77)' 

THE SUPREME COURT OF GEORGIA UNANIMOUSLY REVERSED REASONING THAT THE
LOWER COURT'S RELIANCE ON STANLEY V. GEORGIA, 394 U.S. 557 (1969), WAS
MISPLACED IN VIEW OF OUR SUBSEQUENT DECISION IN UNITED STATES V.
REIDEL, 402 U.S. 351 (1971): 

"IN (REIDEL) THE SUPREME COURT EXPRESSLY HELD THAT THE GOVERNMENT
COULD CONSTITUTIONALLY PROHIBIT THE DISTRIBUTION OF OBSCENE MATERIALS
THROUGH THE MAILS, EVEN THOUGH THE DISTRIBUTION BE LIMITED TO WILLING
RECIPIENTS WHO STATE THAT THEY ARE ADULTS, AND, FURTHER, THAT THE
CONSTITUTIONAL RIGHT OF A PERSON TO POSSESS OBSCENE MATERIAL IN THE
PRIVACY OF HIS OWN HOME, AS EXPRESSED IN THE STANLEY CASE, DOES NOT
CARRY WITH IT THE RIGHT TO SELL AND DELIVER SUCH MATERIAL.  . . . THOSE
WHO CHOOSE TO PASS THROUGH THE FRONT DOOR OF THE DEFENDANT'S THEATRE
AND PURCHASE A TICKET TO VIEW THE FILMS AND WHO CERTIFY THEREBY THAT
THEY ARE MORE THAN 21 YEARS OF AGE ARE WILLING RECIPIENTS OF THE
MATERIAL IN THE LEGAL SENSE AS WERE THOSE IN THE REIDEL CASE, WHO,
AFTER READING THE NEWSPAPER ADVERTISEMENTS OF THE MATERIAL, MAILED AN
ORDER TO THE DEFENDANT ACCEPTING HIS SOLICITATION TO SELL THEM THE
OBSCENE BOOKLET THERE.  THAT CASE CLEARLY ESTABLISHES ONCE AND FOR ALL
THAT THE SALE AND DELIVERY OF OBSCENE MATERIAL TO WILLING ADULTS IS NOT
PROTECTED UNDER THE FIRST AMENDMENT." 

[[HC78'(ORIGINAL DOCUMENT PAGE 78)'

  228 GA. 343, 346, 185 S.E.2D 768, 769 - 770 (1971).  THE DECISION
OF THE GEORGIA SUPREME COURT RESTED SQUARELY ON ITS CONCLUSION THAT THE
STATE COULD CONSTITUTIONALLY SUPPRESS THESE FILMS EVEN IF THEY WERE
DISPLAYED ONLY TO PERSONS OVER THE AGE OF 21 WHO WERE AWARE OF THE
NATURE OF THEIR CONTENTS AND WHO HAD CONSENTED TO VIEWING THEM.  FOR
THE REASONS SET FORTH IN THIS OPINION, I AM CONVINCED OF THE INVALIDITY
OF THAT CONCLUSION OF LAW, AND I WOULD THEREFORE VACATE THE JUDGMENT OF
THE GEORGIA SUPREME COURT.  I HAVE NO OCCASION TO CONSIDER THE EXTENT
OF STATE POWER TO REGULATE THE DISTRIBUTION OF SEXUALLY ORIENTED
MATERIALS TO JUVENILES OR TO UNCONSENTING ADULTS.  NOR AM I REQUIRED,
FOR THE PURPOSES OF THIS REVIEW, TO CONSIDER WHETHER OR NOT THESE
PETITIONERS HAD, IN FACT, TAKEN PRECAUTIONS TO AVOID EXPOSURE OF FILMS
TO MINORS OR UNCONSENTING ADULTS. 

        II 

IN ROTH V. UNITED STATES, 354 U.S. 476 (1957), THE COURT HELD THAT
OBSCENITY, ALTHOUGH EXPRESSION, FALLS OUTSIDE THE AREA OF SPEECH OR
PRESS CONSTITUTIONALLY PROTECTED UNDER THE FIRST AND FOURTEENTH
AMENDMENTS AGAINST STATE OR FEDERAL INFRINGEMENT.  BUT AT THE SAME TIME
WE EMPHASIZED IN ROTH THAT "SEX AND OBSCENITY ARE NOT SYNONYMOUS,"
ID., AT 487, AND THAT MATTER WHICH IS SEXUALLY ORIENTED BUT NOT OBSCENE
IS FULLY PROTECTED BY THE CONSTITUTION.  FOR WE RECOGNIZED THAT "(SEX,
A GREAT AND MYSTERIOUS MOTIVE FORCE IN HUMAN LIFE, HAS INDISPUTABLY
BEEN A SUBJECT OF ABSORBING INTEREST TO MANKIND THROUGH THE AGES; IT IS
ONE OF THE VITAL PROBLEMS OF HUMAN INTEREST AND PUBLIC CONCERN."  IBID.
/4/  ROTH RESTED, IN OTHER WORDS, ON WHAT HAS BEEN TERMED A TWO-LEVEL
APPROACH TO THE QUESTION OF OBSCENITY.     [[HC79'(ORIGINAL DOCUMENT
PAGE 79)'  /5/  WHILE MUCH CRITICIZED, /6/  THAT APPROACH HAS BEEN
ENDORSED BY ALL BUT TWO MEMBERS OF THIS COURT WHO HAVE ADDRESSED THE
QUESTION SINCE ROTH.  YET OUR EFFORTS TO IMPLEMENT THAT APPROACH
DEMONSTRATE THAT AGREEMENT ON THE EXISTENCE OF SOMETHING CALLED
"OBSCENITY" IS STILL A LONG AND PAINFUL STEP FROM AGREEMENT ON A
WORKABLE DEFINITION OF THE TERM. 

RECOGNIZING THAT "THE FREEDOMS OF EXPRESSION . . . ARE VULNERABLE TO
GRAVELY DAMAGING YET BARELY VISIBLE ENCROACHMENTS," BANTAM BOOKS, INC.
V. SULLIVAN, 372 U.S. 58, 66 (1963), WE HAVE DEMANDED THAT "SENSITIVE
TOOLS" BE USED TO CARRY OUT THE "SEPARATION OF LEGITIMATE FROM
ILLEGITIMATE SPEECH."  SPEISER V. RANDALL, 357 U.S. 513, 525 (1958). 
THE ESSENCE OF OUR PROBLEMS IN THE OBSCENITY AREA IS THAT WE HAVE BEEN
UNABLE TO PROVIDE "SENSITIVE TOOLS" TO SEPARATE OBSCENITY FROM OTHER
SEXUALLY ORIENTED BUT CONSTITUTIONALLY PROTECTED SPEECH, SO THAT
EFFORTS TO SUPPRESS THE FORMER DO NOT SPILL OVER INTO THE SUPPRESSION
OF THE LATTER. 

[[HC80'(ORIGINAL DOCUMENT PAGE 80)'  THE ATTEMPT, AS THE LATE MR.
JUSTICE HARLAN OBSERVED, HAS ONLY "PRODUCED A VARIETY OF VIEWS AMONG
THE MEMBERS OF THE COURT UNMATCHED IN ANY OTHER COURSE OF
CONSTITUTIONAL ADJUDICATION."  INTERSTATE CIRCUIT, INC. V. DALLAS, 390
U.S. 676, 704 - 705 (1968) (SEPARATE OPINION). 

TO BE SURE, FIVE MEMBERS OF THE COURT DID AGREE IN ROTH THAT
OBSCENITY COULD BE DETERMINED BY ASKING "WHETHER TO THE AVERAGE PERSON,
APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME OF THE
MATERIAL TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST."  354 U.S., AT
489.  BUT AGREEMENT ON THAT TEST--ACHIEVED IN THE ABSTRACT AND WITHOUT
REFERENCE TO THE PARTICULAR MATERIAL BEFORE THE COURT, SEE ID., AT 481
N. 8--WAS, TO SAY THE LEAST, SHORT LIVED.  BY 1967 THE FOLLOWING VIEWS
HAD EMERGED:  MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONSISTENTLY
MAINTAINED THAT GOVERNMENT IS WHOLLY POWERLESS TO REGULATE ANY SEXUALLY
ORIENTED MATTER ON THE GROUND OF ITS OBSCENITY.  SEE, E. G., GINZBURG
V. UNITED STATES, 383 U.S. 463, 476, 482 (1966) (DISSENTING OPINIONS);
JACOBELLIS V. OHIO, 378 U.S. 184, 196 (1964) (CONCURRING OPINION); ROTH
V. UNITED STATES, SUPRA, AT 508 (DISSENTING OPINION).  MR. JUSTICE
HARLAN, ON THE OTHER HAND, BELIEVED THAT THE FEDERAL GOVERNMENT IN THE
EXERCISE OF ITS ENUMERATED POWER COULD CONTROL THE DISTRIBUTION OF
"HARD CORE" PORNOGRAPHY, WHILE THE STATES WERE AFFORDED MORE LATITUDE
TO "(BAN) ANY MATERIAL WHICH, TAKEN AS A WHOLE, HAS BEEN REASONABLY
FOUND IN STATE JUDICIAL PROCEEDINGS TO TREAT WITH SEX IN A
FUNDAMENTALLY OFFENSIVE MANNER, UNDER RATIONALLY ESTABLISHED CRITERIA
FOR JUDGING SUCH MATERIAL."  JACOBELLIS V. OHIO, SUPRA, AT 204
(DISSENTING OPINION).  SEE ALSO, E. G., GINZBURG V. UNITED STATES,
SUPRA, AT 493 (DISSENTING OPINION); A QUANTITY OF BOOKS V. KANSAS, 378
U.S. 205, 215 (1964) (DISSENTING OPINION JOINED BY CLARK, J.); ROTH,
SUPRA, AT 496 (SEPARATE OPINION). 

[[HC81'(ORIGINAL DOCUMENT PAGE 81)'  MR. JUSTICE STEWART REGARDED
"HARD CORE" PORNOGRAPHY AS THE LIMIT OF BOTH FEDERAL AND STATE POWER. 
SEE, E. G., GINZBURG V. UNITED STATES, SUPRA, AT 497 (DISSENTING
OPINION); JACOBELLIS V. OHIO, SUPRA, AT 197 (CONCURRING OPINION). 

THE VIEW THAT, UNTIL TODAY, ENJOYED THE MOST, BUT NOT MAJORITY,
SUPPORT WAS AN INTERPRETATION OF ROTH (AND NOT, AS THE COURT SUGGESTS,
A VEERING "SHARPLY AWAY FROM THE ROTH CONCEPT" AND THE ARTICULATION OF
"A NEW TEST OF OBSCENITY."  MILLER V. CALIFORNIA, ANTE, AT 21) ADOPTED
BY MR. CHIEF JUSTICE WARREN, MR. JUSTICE FORTAS, AND THE AUTHOR OF THIS
OPINION IN MEMOIRS V. MASSACHUSETTS, 383 U.S. 413 (1966).  WE EXPRESSED
THE VIEW THAT FEDERAL OR STATE GOVERNMENTS COULD CONTROL THE
DISTRIBUTION OF MATERIAL WHERE "THREE ELEMENTS . . . COALESCE:  IT MUST
BE ESTABLISHED THAT (A) THE DOMINANT THEME OF THE MATERIAL TAKEN AS A
WHOLE APPEALS TO A PRURIENT INTEREST IN SEX; (B) THE MATERIAL IS
PATENTLY OFFENSIVE BECAUSE IT AFFRONTS CONTEMPORARY COMMUNITY STANDARDS
RELATING TO THE DESCRIPTION OR REPRESENTATION OF SEXUAL MATTERS; AND
(C) THE MATERIAL IS UTTERLY WITHOUT REDEEMING SOCIAL VALUE."  ID., AT
418.  EVEN THIS FORMULATION, HOWEVER, CONCEALED DIFFERENCES OF
OPINION.  COMPARE JACOBELLIS V. OHIO, SUPRA, AT 192 - 195 (BRENNAN, J.,
JOINED BY GOLDBERG, J.)  (COMMUNITY STANDARDS NATIONAL), WITH ID., AT
200 - 201 (WARREN, C. J., JOINED BY CLARK, J., DISSENTING) (COMMUNITY
STANDARDS LOCAL).  /7/  MOREOVER, IT DID NOT PROVIDE A DEFINITION
COVERING ALL SITUATIONS.  SEE MISHKIN V. NEW YORK, 383 U.S. 502 (1966)
(PRURIENT APPEAL DEFINED IN TERMS OF A DEVIANT SEXUAL GROUP); GINZBRUG
V. UNITED STATES, SUPRA ("PANDERING"  PROBATIVE EVIDENCE OF OBSCENITY
IN CLOSE CASES). 

[[HC82'(ORIGINAL DOCUMENT PAGE 82)'  SEE ALSO GINSBERG V. NEW YORK,
390 U.S. 629 (1968) (OBSCENITY FOR JUVENILES).  NOR, FINALLY, DID IT
EVER COMMAND A MAJORITY OF THE COURT.  ASIDE FROM THE OTHER VIEWS
DESCRIBED ABOVE, MR. JUSTICE CLARK BELIEVED THAT "SOCIAL IMPORTANCE"
COULD ONLY "BE CONSIDERED TOGETHER WITH EVIDENCE THAT THE MATERIAL IN
QUESTION APPEALS TO PRURIENT INTEREST AND IS PATENTLY OFFENSIVE." 
MEMOIRS V. MASSACHUSETTS, SUPRA, AT 445 (DISSENTING OPINION). 
SIMILARLY, MR. JUSTICE WHITE REGARDED "A PUBLICATION TO BE OBSCENE IF
ITS PREDOMINANT THEME APPEALS TO THE PRURIENT INTEREST IN A MANNER
EXCEEDING CUSTOMARY LIMITS OF CANDOR,"  ID., AT 460 - 461 (DISSENTING
OPINION), AND REGARDED "SOCIAL IMPORTANCE'  . . . NOT (AS) AN
INDEPENDENT TEST OF OBSCENITY BUT (AS) RELEVANT ONLY TO DETERMINING THE
PREDOMINANT PRURIENT INTEREST OF THE MATERIAL . . . ."  ID., AT 462. 

IN THE FACE OF THIS DIVERGENCE OF OPINION THE COURT BEGAN THE PRACTICE
IN 1967 IN REDRUP V. NEW YORK, 386 U.S. 767 (1967), OF PER CURIAM
REVERSALS OF CONVICTIONS FOR THE DISSEMINATION OF MATERIALS THAT AT
LEAST FIVE MEMBERS OF THE COURT, APPLYING THEIR SEPARATE TESTS, DEEMED
NOT TO BE OBSCENE.  /8/  THIS APPROACH CAPPED THE ATTEMPT IN ROTH TO
SEPARATE ALL FORMS OF SEXUALLY ORIENTED EXPRESSION INTO TWO CATEGORIES-
THE ONE SUBJECT TO FULL GOVERNMENTAL SUPPRESSION AND THE OTHER BEYOND
THE REACH OF GOVERNMENTAL REGULATION TO THE SAME EXTENT AS ANY OTHER
PROTECTED FORM OF SPEECH OR PRESS. 

[[HC83'(ORIGINAL DOCUMENT PAGE 83)'  TODAY A MAJORITY OF THE COURT
OFFERS A SLIGHTLY ALTERED FORMULATION OF THE BASIC ROTH TEST, WHILE
LEAVING ENTIRELY UNCHANGED THE UNDERLYING APPROACH. 

        III 

OUR EXPERIENCE WITH THE ROTH APPROACH HAS CERTAINLY TAUGHT US THAT
THE OUTRIGHT SUPPRESSION OF OBSCENITY CANNOT BE RECONCILED WITH THE
FUNDAMENTAL PRINCIPLES OF THE FIRST AND FOURTEENTH AMENDMENTS.  FOR WE
HAVE FAILED TO FORMULATE A STANDARD THAT SHARPLY DISTINGUISHES
PROTECTED FROM UNPROTECTED SPEECH, AND OUT OF NECESSITY, WE HAVE
RESORTED TO THE REDRUP APPROACH, WHICH RESOLVES CASES AS BETWEEN THE
PARTIES, BUT OFFERS ONLY THE MOST OBSCURE GUIDANCE TO LEGISLATION,
ADJUDICATION BY OTHER COURTS, AND PRIMARY CONDUCT.  BY DISPOSING OF
CASES THROUGH SUMMARY REVERSAL OR DENIAL OF CERTIORARI WE HAVE
DELIBERATELY AND EFFECTIVELY OBSCURED THE RATIONALE UNDERLYING THE
DECISIONS.  IT COMES AS NO SURPRISE THAT JUDICIAL ATTEMPTS TO FOLLOW
OUR LEAD CONSCIENTIOUSLY HAVE OFTEN ENDED IN HOPELESS CONFUSION. 

OF COURSE, THE VAGUENESS PROBLEM WOULD BE LARGELY OF OUR OWN
CREATION IF IT STEMMED PRIMARILY FROM OUR FAILURE TO REACH A CONSENSUS
ON ANY ONE STANDARD. 

 HC84'(ORIGINAL DOCUMENT PAGE 84)'  BUT AFTER 16 YEARS OF
EXPERIMENTATION AND DEBATE I AM RELUCTANTLY FORCED TO THE CONCLUSION
THAT NONE OF THE AVAILABLE FORMULAS, INCLUDING THE ONE ANNOUNCED TODAY,
CAN REDUCE THE VAGUENESS TO A TOLERABLE LEVEL WHILE AT THE SAME TIME
STRIKING AN ACCEPTABLE BALANCE BETWEEN THE PROTECTIONS OF THE FIRST AND
FOURTEENTH AMENDMENTS, ON THE ONE HAND, AND ON THE OTHER THE ASSERTED
STATE INTEREST IN REGULATING THE DISSEMINATION OF CERTAIN SEXUALLY
ORIENTED MATERIALS.  ANY EFFORT TO DRAW A CONSTITUTIONALLY ACCEPTABLE
BOUNDARY ON STATE POWER MUST RESORT TO SUCH INDEFINITE CONCEPTS AS
"PRURIENT INTEREST," "PATENT OFFENSIVENESS," "SERIOUS LITERARY VALUE,"
AND THE LIKE.  THE MEANING OF THESE CONCEPTS NECESSARILY VARIES WITH
THE EXPERIENCE OUTLOOK, AND EVEN IDIOSYNCRASIES OF THE PERSON DEFINING
THEM.  ALTHOUGH WE HAVE ASSUMED THAT OBSCENITY DOES EXIST AND THAT WE
"KNOW IT WHEN (WE) SEE IT," JACOBELLIS V. OHIO, SUPRA, AT 197 (STEWART,
J., CONCURRING), WE ARE MANIFESTLY UNABLE TO DESCRIBE IT IN ADVANCE
EXCEPT BY REFERENCE TO CONCEPTS SO ELUSIVE THAT THEY FAIL TO
DISTINGUISH CLEARLY BETWEEN PROTECTED AND UNPROTECTED SPEECH. 

WE HAVE MORE THAN ONCE PREVIOUSLY ACKNOWLEDGED THAT
"CONSTITUTIONALLY PROTECTED EXPRESSION . . . IS OFTEN SEPARATED FROM
OBSCENITY ONLY BY A DIM AND UNCERTAIN LINE."  BANTAM BOOKS, INC. V.
SULLIVAN, 372 U.S., AT 66.  SEE ALSO, E. G., MISHKIN V. NEW YORK,
SUPRA, AT 511.  ADDED TO THE "PERHAPS INHERENT RESIDUAL VAGUENESS" OF
EACH OF THE CURRENT MULTITUDE OF STANDARDS, GINZBURG V. UNITED STATES,
SUPRA, AT 475 N. 19, IS THE FURTHER COMPLICATION THAT THE OBSCENITY OF
ANY PARTICULAR ITEM MAY DEPEND UPON NUANCES OF PRESENTATION AND THE
CONTEXT OF ITS DISSEMINATION.  SEE IBID.  REDRUP ITSELF SUGGESTED THAT
OBTRUSIVE EXPOSURE TO UNWILLING INDIVIDUALS, DISTRIBUTION TO JUVENILES,
AND "PANDERING" MAY ALSO BEAR UPON THE DETERMINATION OF OBSCENITY. 

[[HC85'(ORIGINAL DOCUMENT PAGE 85)'  SEE REDRUP V. NEW YORK, SUPRA,
AT 769.  AS MR. CHIEF JUSTICE WARREN STATED IN A RELATED VEIN,
OBSCENITY IS A FUNCTION OF THE CIRCUMSTANCES OF ITS DISSEMINATION: 

"IT IS NOT THE BOOK THAT IS ON TRIAL; IT IS A PERSON.  THE CONDUCT
OF THE DEFENDANT IS THE CENTRAL ISSUE, NOT THE OBSCENITY OF A BOOK OR
PICTURE.  THE NATURE OF THE MATERIALS IS, OF COURSE, RELEVANT AS AN
ATTRIBUTE OF THE DEFENDANT'S CONDUCT, BUT THE MATERIALS ARE THUS PLACED
IN CONTEXT FROM WHICH THEY DRAW COLOR AND CHARACTER."  ROTH, 354 U.S.,
AT 495 (CONCURRING OPINION).  SEE ALSO, E. G., JACOBELLIS V. OHIO,
SUPRA, AT 201 (DISSENTING OPINION); KINGSLEY BOOKS, INC. V. BROWN, 354
U.S. 436, 445 - 446 (1957) (DISSENTING OPINION).  I NEED HARDLY POINT
OUT THAT THE FACTORS WHICH MUST BE TAKEN INTO ACCOUNT ARE JUDGMENTAL
AND CAN ONLY BE APPLIED ON "A CASE-BY-CASE, SIGHT-BY-SIGHT BASIS. 
MISHKIN V. NEW UORK, SUPRA, AT 516 (BLACK, J., DISSENTING).  THESE
CONSIDERATIONS SUGGEST THAT NO ONE DEFINITION, NO MATTER HOW PRECISELY
OR NARROWLY DRAWN, CAN POSSIBLY SUFFICE FOR ALL SITUATIONS, OR CARVE
OUT FULLY SUPPRESSIBLE EXPRESSION FROM ALL MEDIA WITHOUT ALSO CREATING
A SUBSTANTIAL RISK OF ENCROACHMENT UPON THE GUARANTEES OF THE DUE
PROCESS CLAUSE AND THE FIRST AMENDMENT.  /9/ 

THE VAGUENESS OF THE STANDARDS IN THE OBSCENITY AREA PRODUCES A
NUMBER OF SEPARATE PROBLEMS, AND ANY IMPROVEMENT MUST REST ON AN
UNDERSTANDING THAT THE PROBLEMS ARE TO SOME EXTENT DISTINCT. 

[[HC86'(ORIGINAL DOCUMENT PAGE 86)'  FIRST, A VAGUE STATUTE FAILS TO
PROVIDE ADEQUATE NOTICE TO PERSONS WHO ARE ENGAGED IN THE TYPE OF
CONDUCT THAT THE STATUTE COULD BE THOUGHT TO PROSCRIBE.  THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES THAT ALL CRIMINAL
LAWS PROVIDE FAIR NOTICE OF "WHAT THE STATE COMMANDS OR FORBIDS." 
LANZETTA V. NEW JERSEY, 306 U.S. 451, 453 (1939); CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U.S. 385 (1926).  IN THE SERVICE OF THIS GENERAL
PRINCIPLE WE HAVE REPEATEDLY HELD THAT THE DEFINITION OF OBSCENITY MUST
PROVIDE ADEQUATE NOTICE OF EXACTLY WHAT IS PROHIBITED FROM
DISSEMINATION. 

[[HC87'(ORIGINAL DOCUMENT PAGE 87)'  SEE, E. G., RABE V. WASHINGTON,
405 U.S. 313 (1972); INTERSTATE CIRCUIT, INC. V. DALLAS 390 U.S. 676
(1968); WINTERS V. NEW YORK, 333 U.S. 507 (1948).  WHILE VARIOUS TESTS
HAVE BEEN UPHELD UNDER THE DUE PROCESS CLAUSE, SEE GINSBERG V. NEW
YORK, 390 U.S., AT 643; MISHKIN V. NEW YORK, 383 U.S., AT 506 - 507;
ROTH V. UNITED STATES, 354 U.S., AT 491 - 492, I HAVE GRAVE DOUBTS THAT
ANY OF THOSE TESTS COULD BE SUSTAINED TODAY.  FOR I KNOW OF NO
SATISFACTORY ANSWER TO THE ASSERTION BY MR. JUSTICE BLACK, "AFTER THE
FOURTEEN SEPARATE OPINIONS HANDED DOWN" IN THE TRILOGY OF CASES DECIDED
IN 1966, THAT "NO PERSON, NOT EVEN THE MOST LEARNED JUDGE MUCH LESS A
LAYMAN, IS CAPABLE OF KNOWING IN ADVANCE OF AN ULTIMATE DECISION IN HIS
PARTICULAR CASE BY THIS COURT WHETHER CERTAIN MATERIAL COMES WITHIN THE
AREA OF 'OBSCENITY' . . ."  GINZBURG V. UNITED STATES, 383 U.S., AT 480
- 481 (DISSENTING OPINION).  SEE ALSO THE STATEMENT OF MR. JUSTICE
HARLAN IN INTERSTATE CIRCUIT, INC. V. DALLAS, SUPRA, AT 707 (SEPARATE
OPINION).  AS MR. CHIEF JUSTICE WARREN POINTED OUT, "(THE
CONSTITUTIONAL REQUIREMENT OF DEFINITENESS IS VIOLATED BY A CRIMINAL
STATUTE THAT FAILS TO GIVE A PERSON OF ORDINARY INTELLIGENCE FAIR
NOTICE THAT HIS CONTEMPLATED CONDUCT IS FORBIDDEN BY THE STATUTE.  THE
UNDERLYING PRINCIPLE IS THAT NO MAN SHALL BE HELD CRIMINALLY
RESPONSIBLE FOR CONDUCT WHICH HE COULD NOT REASONABLY UNDERSTAND TO BE
PROSCRIBED."  UNITED STATES V. HARRISS, 347 U.S. 612, 617 (1954).  IN
THIS CONTEXT, EVEN THE MOST PAINSTAKING EFFORTS TO DETERMINE IN ADVANCE
WHETHER CERTAIN SEXUALLY ORIENTED EXPRESSION IS OBSCENE MUST INEVITABLY
PROVE UNAVAILING.  FOR THE INSUFFICIENCY OF THE NOTICE COMPELS PERSONS
TO GUESS NOT ONLY WHETHER THEIR CONDUCT IS COVERED BY A CRIMINAL
STATUTE, BUT ALSO WHETHER THEIR CONDUCT FALLS WITHIN THE
CONSTITUTIONALLY PERMISSIBLE REACH OF THE STATUTE.  THE RESULTING LEVEL
OF UNCERTAINTY IS UTTERLY INTOLERABLE, NOT ALONE BECAUSE IT MAKES
"(BOOKSELLING . . . A HAZARDOUS PROFESSION," GINSBERG V. NEW YORK,
SUPRA, AT 674 (FORTAS, J., DISSENTING), BUT AS WELL BECAUSE IT INVITES
ARBITRARY AND ERRATIC ENFORCEMENT OF THE LAW.     [[HC88'(ORIGINAL
DOCUMENT PAGE 88)'  SEE, E. G., PAPACHRISTOU V. CITY OF JACKSONVILLE,
405 U.S. 156 (1972); GREGORY V. CITY OF CHICAGO, 394 U.S. 111, 120
(1969) (BLACK, J., CONCURRING); NIEMOTKO V. MARYLAND, 340 U.S. 268
(1951); CANTWELL V. CONNECTICUT, 310 U.S. 296, 308 (1940); THORNHILL V.
ALABAMA, 310 U.S. 88 (1940).     IN ADDITION TO PROBLEMS THAT ARISE
WHEN ANY CRIMINAL STATUTE FAILS TO AFFORD FAIR NOTICE OF WHAT IT
FORBIDS, A VAGUE STATUTE IN THE AREAS OF SPEECH AND PRESS CREATES A
SECOND LEVEL OF DIFFICULTY.  WE HAVE INDICATED THAT "STRICTER STANDARDS
OF PERMISSIBLE STATUTORY VAGUENESS MAY BE APPLIED TO A STATUTE HAVING A
POTENTIALLY INHIBITING EFFECT ON SPEECH; A MAN MAY THE LESS BE REQUIRED
TO ACT AT HIS PERIL HERE, BECAUSE THE FREE DISSEMINATION OF IDEAS MAY
BE THE LOSER."  /10/  SMITH V. CALIFORNIA, 361 U.S. 147, 151 (1959). 
THAT PROPOSITION DRAWS ITS STRENGTH FROM OUR RECOGNITION THAT 

"(THE FUNDAMENTAL FREEDOMS OF SPEECH AND PRESS HAVE CONTRIBUTED
GREATLY TO THE DEVELOPMENT AND WELL-BEING OF OUR FREE SOCIETY AND ARE
INDISPENSABLE TO ITS CONTINUED GROWTH.  CEASELESS VIGILANCE IS THE
WATCHWORD TO PREVENT THEIR EROSION BY CONGRESS OR BY THE STATES.  THE
DOOR BARRING FEDERAL AND STATE INTRUSION INTO THIS AREA CANNOT BE LEFT
AJAR . . . ."  ROTH, SUPRA, AT 488.  /11/ 

TO IMPLEMENT THIS GENERAL PRINCIPLE, AND RECOGNIZING THE INHERENT
VAGUENESS OF ANY DEFINITION OF OBSCENITY, WE HAVE HELD THAT THE
DEFINITION OF OBSCENITY MUST BE DRAWN AS NARROWLY AS POSSIBLE SO AS TO
MINIMIZE THE INTERFERENCE WITH PROTECTED EXPRESSION. 

[[HC89'(ORIGINAL DOCUMENT PAGE 89)'  THUS, IN ROTH WE REJECTED THE
TEST OF REGINA V. HICKLIN, (1868) L. R. 3 Q. B. 360, THAT "(JUDGED)
OBSCENITY BY THE EFFECT OF ISOLATED PASSAGES UPON THE MOST SUSCEPTIBLE
PERSONS."  354 U.S., AT 489.  THAT TEST, WE HELD IN ROTH, "MIGHT WELL
ENCOMPASS MATERIAL LEGITIMATELY TREATING WITH SEX . . . ."  IBID.  CF.
MISHKIN V. NEW YORK, SUPRA, AT 509.  AND WE HAVE SUPPLEMENTED THE ROTH
STANDARD WITH ADDITIONAL TESTS IN AN EFFORT TO HOLD IN CHECK THE
CORROSIVE EFFECT OF VAGUENESS ON THE GUARANTEES OF THE FIRST
AMENDMENT.  /12/  WE HAVE HELD, FOR EXAMPLE, THAT "A STATE IS NOT FREE
TO ADOPT WHATEVER PROCEDURES IT PLEASES FOR DEALING WITH OBSCENITY . .
. ." 

[[HC90'(ORIGINAL DOCUMENT PAGE 90)'  MARCUS V. SEARCH WARRANT, 367
U.S. 717, 731 (1961).  "RATHER, THE FIRST AMENDMENT REQUIRES THAT
PROCEDURES BE INCORPORATED THAT 'ENSURE AGAINST THE CURTAILMENT OF
CONSTITUTIONALLY PROTECTED EXPRESSION . . . .'"  BLOUNT V. RIZZI, 400
U.S. 410, 416 (1971), QUOTING FROM BANTAM BOOKS, INC., V. SULLIVAN, 372
U.S., AT 66.  SEE GENERALLY RIZZI, SUPRA, AT 417; UNITED STATES V.
THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363, 367 - 375 (1971); LEE ART
THEATRE, INC. V. VIRGINIA, 392 U.S. 636 (1968); FREEDMAN V. MARYLAND,
380 U.S. 51, 58 - 60 (1965); A QUANTITY OF BOOKS V. KANSAS, 378 U.S.
205 (1964) (PLURALITY OPINION). 

SIMILARLY, WE HAVE HELD THAT A STATE CANNOT IMPOSE CRIMINAL
SANCTIONS FOR THE POSSESSION OF OBSCENE MATERIAL ABSENT PROOF THAT THE
POSSESSOR HAD KNOWLEDGE OF THE CONTENTS OF THE MATERIAL.  SMITH V.
CALIFORNIA, SUPRA.  "PROOF OF SCIENTER" IS NECESSARY "TO AVOID THE
HAZARD OF SELF-CENSORSHIP OF CONSTITUTIONALLY PROTECTED MATERIAL AND TO
COMPENSATE FOR THE AMBIGUITIES INHERENT IN THE DEFINITION OF
OBSCENITY."  MISHKIN V. NEW YORK, SUPRA, AT 511; GINSBERG V. NEW YORK,
SUPRA, AT 644 - 645.  IN SHORT. 

"(THE OBJECTIONABLE QUALITY OF VAGUENESS AND OVERBREADTH . . . (IS)
THE DANGER OF TOLERATING, IN THE AREA OF FIRST AMENDMENT FREEDOMS, THE
EXISTENCE OF A PENAL STATUTE SUSCEPTIBLE OF SWEEPING AND IMPROPER
APPLICATION.  CF. MARCUS V. SEARCH WARRANT, 367 U.S. 717, 733.  THESE
FREEDOMS ARE DELICATE AND VULNERABLE, AS WELL AS SUPREMELY PRECIOUS IN
OUR SOCIETY.  THE THREAT OF SANCTIONS MAY DETER THEIR EXERCISE ALMOST
AS POTENTLY AS THE ACTUAL APPLICATION OF SANCTIONS.  CF. SMITH V.
CALIFORNIA, (361 U.S.), AT 151 - 154; SPEISER V. RANDALL, 357 U.S. 513,
526.  BECAUSE FIRST AMENDMENT FREEDOMS NEED BREATHING SPACE TO SURVIVE,
GOVERNMENT MAY REGULATE IN THE AREA ONLY WITH NARROW SPECIFICITY. 

[[HC91'(ORIGINAL DOCUMENT PAGE 91)'

CANTWELL V. CONNECTICUT, 310 U.S. 296, 311."  NAACP V. BUTTON, 371
U.S. 415, 432 - 433 (1963). 

THE PROBLEMS OF FAIR NOTICE AND CHILLING PROTECTED SPEECH ARE VERY
GRAVE STANDING ALONE.  BUT IT DOES NOT DETRACT FROM THEIR IMPORTANCE TO
RECOGNIZE THAT A VAGUE STATUTE IN THIS AREA CREATES A THIRD, ALTHOUGH
ADMITTEDLY MORE SUBTLE, SET OF PROBLEMS.  THESE PROBLEMS CONCERN THE
INSTITUTIONAL STRESS THAT INEVITABLY RESULTS WHERE THE LINE SEPARATING
PROTECTED FROM UNPROTECTED SPEECH IS EXCESSIVELY VAGUE.  IN ROTH WE
CONCEDED THAT "THERE MAY BE MARGINAL CASES IN WHICH IT IS DIFFICULT TO
DETERMINE THE SIDE OF THE LINE ON WHICH A PARTICULAR FACT SITUATION
FALLS . . . ."  354 U.S., AT 491 - 492.  OUR SUBSEQUENT EXPERIENCE
DEMONSTRATES THAT ALMOST EVERY CASE IS "MARGINAL."  AND SINCE THE
"MARGIN" MARKS THE POINT OF SEPARATION BETWEEN PROTECTED AND
UNPROTECTED SPEECH, WE ARE LEFT WITH A SYSTEM IN WHICH ALMOST EVERY
OBSCENITY CASE PRESENTS A CONSTITUTIONAL QUESTION OF EXCEPTIONAL
DIFFICULTY.  "THE SUPPRESSION OF A PARTICULAR WRITING OR OTHER TANGIBLE
FORM OF EXPRESSION IS . . . AN INDIVIDUAL MATTER, AND IN THE NATURE OF
THINGS EVERY SUCH SUPPRESSION RAISES AN INDIVIDUAL CONSTITUTIONAL
PROBLEM, IN WHICH A REVIEWING COURT MUST DETERMINE FOR ITSELF WHETHER
THE ATTACKED EXPRESSION IS SUPPRESSABLE WITHIN CONSTITUTIONAL
STANDARDS."  ROTH, SUPRA, AT 497 (SEPARATE OPINION OF HARLAN, J.). 

EXAMINING THE RATIONALE, BOTH EXPLICIT AND IMPLICIT, OF OUR
VAGUENESS DECISIONS, ONE COMMENTATOR HAS VIEWED THESE DECISIONS AS AN
ATTEMPT BY THE COURT TO ESTABLISH AN "INSULATING BUFFER ZONE OF ADDED
PROTECTION AT THE PERIPHERIES OF SEVERAL OF THE BILL OF RIGHTS
FREEDOMS."  NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN THE SUPREME COURT,
109 U. PA. L. REV. 67, 75 (1960).  THE BUFFER ZONE ENABLES THE COURT TO
FEND OFF LEGISLATIVE ATTEMPTS "TO PASS TO THE COURTS--AND ULTIMATELY TO
THE SUPREME COURT--THE AWESOME TASK OF MAKING CASE BY CASE AT ONCE THE
CRIMINAL AND THE CONSTITUTIONAL LAW."  ID., AT 81. 

[[HC92'(ORIGINAL DOCUMENT PAGE 92)'  THUS, 

"(BECAUSE OF THE COURT'S LIMITED POWER TO REEXAMINE FACT ON A COLD
RECORD, WHAT APPEARS TO BE GOING ON IN THE ADMINISTRATION OF THE LAW
MUST BE FORCED, BY RESTRICTIVE PROCEDURES, TO REFLECT WHAT IS REALLY
GOING ON; AND BECAUSE OF THE IMPOSSIBILITY, THROUGH SHEER VOLUME OF
CASES, OF THE COURT'S EFFECTIVELY POLICING LAW ADMINISTRATION CASE BY
CASE, THOSE PROCEDURES MUST BE FRAMED TO ASSURE, AS WELL AS PROCEDURES
CAN ASSURE, A CERTAIN OVERALL PROBABILITY OF REGULARITY.  ID., AT 89
(EMPHASIS IN ORIGINAL). 

AS A RESULT OF OUR FAILURE TO DEFINE STANDARDS WITH PREDICTABLE
APPLICATION TO ANY GIVEN PIECE OF MATERIAL, THERE IS NO PROBABILITY OF
REGULARITY IN OBSCENITY DECISIONS BY STATE AND LOWER FEDERAL COURTS. 
THAT IS NOT TO SAY THAT THESE COURTS HAVE PERFORMED BADLY IN THIS AREA
OR PAID INSUFFICIENT ATTENTION TO THE PRINCIPLES WE HAVE ESTABLISHED. 
THE PROBLEM IS, RATHER, THAT ONE CANNOT SAY WITH CERTAINTY THAT
MATERIAL IS OBSCENE UNTIL AT LEAST FIVE MEMBERS OF THIS COURT, APPLYING
INEVITABLY OBSCURE STANDARDS, HAVE PRONOUNCED IT SO.  THE NUMBER OF
OBSCENITY CASES ON OUR DOCKET GIVES AMPLE TESTIMONY TO THE BURDEN THAT
HAS BEEN PLACED UPON THIS COURT. 

BUT THE SHEER NUMBER OF THE CASES DOES NOT DEFINE THE FULL EXTENT OF
THE INSTITUTIONAL PROBLEM.  FOR, QUITE APART FROM THE NUMBER OF CASES
INVOLVED AND THE NEED TO MAKE A FRESH CONSTITUTIONAL DETERMINATION IN
EACH CASE, WE ARE TIED TO THE "ABSURD BUSINESS OF PERUSING AND VIEWING
THE MISERABLE STUFF THAT POURS INTO THE COURT . . . ."  INTERSTATE
CIRCUIT, INC. V. DALLAS, 390 U.S., AT 707 (SEPARATE OPINION OF HARLAN,
J.).  WHILE THE MATERIAL MAY HAVE VARYING DEGREES OF SOCIAL IMPORTANCE,
IT IS HARDLY A SOURCE OF EDIFICATION TO THE MEMBERS OF THIS COURT WHO
ARE COMPELLED TO VIEW IT BEFORE PASSING ON ITS OBSCENITY. 

 HC93'(ORIGINAL DOCUMENT PAGE 93)'  CF. MISHKIN V. NEW YORK, 383
U.S., AT 516 - 517 (BLACK, J., DISSENTING). 

MOREOVER, WE HAVE MANAGED THE BURDEN OF DECIDING SCORES OF OBSCENITY
CASES BY RELYING ON PER CURIAM REVERSALS OR DENIALS OF CERTIORARI--A
PRACTICE WHICH CONCEALS THE RATIONALE OF DECISION AND GIVES AT LEAST
THE APPEARANCE OF ARBITRARY ACTION BY THIS COURT.  SEE BLOSS V. DYKEMA,
398 U.S. 278 (1970) (HARLAN, J., DISSENTING).  MORE IMPORTANT, NO LESS
THAN THE PROCEDURAL SCHEMES STRUCK DOWN IN SUCH CASES AS BLOUNT V.
RISSI, SUPRA, AND FREEDMAN V. MARYLAND, SUPRA, THE PRACTICE EFFECTIVELY
CENSORS PROTECTED EXPRESSION BY LEAVING LOWER COURT DETERMINATIONS OF
OBSCENITY INTACT EVEN THOUGHT THE STATUS OF THE ALLEGEDLY OBSCENE
MATERIAL IS ENTIRELY UNSETTLED UNTIL FINAL REVIEW HERE.  IN ADDITION,
THE UNCERTAINTY OF THE STANDARDS CREATES A CONTINUING SOURCE OF TENSION
BETWEEN STATE AND FEDERAL COURTS, SINCE THE NEED FOR AN INDEPENDENT
DETERMINATION BY THIS COURT SEEMS TO RENDER SUPERFLUOUS EVEN THE MOST
CONSCIENTIOUS ANALYSIS BY STATE TRIBUNALS.  AND OUR INABILITY TO
JUSTIFY OUR DECISIONS WITH A PERSUASIVE RATIONALE--OR INDEED, ANY
RATIONALE AT ALL--NECESSARILY CREATES THE IMPRESSION THAT WE ARE MERELY
SECOND-GUESSING STATE COURT JUDGES. 

THE SEVERE PROBLEMS ARISING FROM THE LACK OF FAIR NOTICE, FROM THE
CHILL ON PROTECTED EXPRESSION, AND FROM THE STRESS IMPOSED ON THE STATE
AND FEDERAL JUDICIAL MACHINERY PERSUADE ME THAT A SIGNIFICANT CHANGE IN
DIRECTION IS URGENTLY REQUIRED.  I TURN, THEREFORE, TO THE ALTERNATIVES
THAT ARE NOW OPEN. 

       IV 

1.  THE APPROACH REQUIRING THE SMALLEST DEVIATION FROM OUR PRESENT
COURSE WOULD BE TO DRAW A NEW LINE BETWEEN PROTECTED AND UNPROTECTED
SPEECH, STILL PERMITTING THE STATES TO SUPPRESS ALL MATERIAL ON THE
UNPROTECTED SIDE OF THE LINE. 

[[HC94'(ORIGINAL DOCUMENT PAGE 94)'  IN MY VIEW, CLARITY CANNOT BE
OBTAINED PURSUANT TO THIS APPROACH EXCEPT BY DRAWING A LINE THAT
RESOLVES ALL DOUBT IN FAVOR OF STATE POWER AND AGAINST THE GUARANTEES
OF THE FIRST AMENDMENT.  WE COULD HOLD, FOR EXAMPLE, THAT ANY DEPICTION
OR DESCRIPTION OF HUMAN SEXUAL ORGANS, IRRESPECTIVE OF THE MANNER OR
PURPOSE OF THE PORTRAYAL, IS OUTSIDE THE PROTECTION OF THE FIRST
AMENDMENT AND THEREFORE OPEN TO SUPPRESSION BY THE STATES.  THAT
FORMULA WOULD, NO DOUBT, OFFER MUCH FAIRER NOTICE OF THE REACH OF ANY
STATE STATUTE DRAWN AT THE BOUNDARY OF THE STATE'S CONSTITUTIONAL
POWER.  AND IT WOULD ALSO, IN ALL LIKELIHOOD, GIVE RISE TO A
SUBSTANTIAL PROBABILITY OF REGULARITY IN MOST JUDICIAL DETERMINATIONS
UNDER THE STANDARD.  BUT SUCH A STANDARD WOULD BE APPALLINGLY
OVERBROAD, PERMITTING THE SUPPRESSION OF A VAST RANGE OF LITERARY,
SCIENTIFIC, AND ARTISTIC MASTERPIECES.  NEITHER THE FIRST AMENDMENT NOR
ANY FREE COMMUNITY COULD POSSIBLY TOLERATE SUCH A STANDARD.  YET SHORT
OF THAT EXTREME IT IS HARD TO SEE HOW ANY CHOICE OF WORDS COULD REDUCE
THE VAGUENESS PROBLEM TO TOLERABLE PROPORTIONS, SO LONG AS WE REMAIN
COMMITTED TO THE VIEW THAT SOME CLASS OF MATERIALS IS SUBJECT TO
OUTRIGHT SUPPRESSION BY THE STATE. 

2.  THE ALTERNATIVE ADOPTED BY THE COURT TODAY RECOGNIZES THAT A
PROHIBITION AGAINST ANY DEPICTION OR DESCRIPTION OF HUMAN SEXUAL ORGANS
COULD NOT BE RECONCILED WITH THE GUARANTEES OF THE FIRST AMENDMENT. 
BUT THE COURT DOES RETAIN THE VIEW THAT CERTAIN SEXUALLY ORIENTED
MATERIAL CAN BE CONSIDERED OBSCENE AND THEREFORE UNPROTECTED BY THE
FIRST AND FOURTEENTH AMENDMENTS.  TO DESCRIBE THAT UNPROTECTED CLASS OF
EXPRESSION, THE COURT ADOPTS A RESTATEMENT OF THE ROTH-MEMOIRS
DEFINITION OF OBSCENITY:  "THE BASIC GUIDELINES FOR THE TRIER OF FACT
MUST BE:  (A) WHETHER 'THE AVERAGE PERSON, APPLYING CONTEMPORARY
COMMUNITY STANDARDS' WOULD FIND THAT THE WORK, TAKEN AS A WHOLE,
APPEALS TO THE PRURIENT INTEREST . . . (B) WHETHER THE WORK DEPICTS OR
DESCRIBES, IN A PATENTLY OFFENSIVE WAY, SEXUAL CONDUCT SPECIFICALLY
DEFINED BY THE APPLICABLE STATE LAW, AND (C) WHETHER THE WORK, TAKEN AS
A WHOLE, LACKS SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC
VALUE." 

[[HC95'(ORIGINAL DOCUMENT PAGE 95)'  MILLER V. CALIFORNIA, ANTE, AT
24.  IN APPARENT ILLUSTRATION OF "SEXUAL CONDUCT," AS THAT TERM IS USED
IN THE TEST'S SECOND ELEMENT, THE COURT IDENTIFIES "(A) PATENTLY
OFFENSIVE REPRESENTATIONS OR DESCRIPTIONS OF ULTIMATE SEXUAL ACTS,
NORMAL OR PERVERTED, ACTUAL OR SIMULATED," AND "(B) PATENTLY OFFENSIVE
REPRESENTATIONS OR DESCRIPTIONS OF MASTURBATION, EXCRETORY FUNCTIONS,
AND LEWD EXHIBITION OF THE GENITALS."  ID., AT 25. 

THE DIFFERENCE BETWEEN THIS FORMULATION AND THE THREE-PRONGED
MEMOIRS TEST ARE, FOR THE MOST PART, ACADEMIC.  /13/  THE FIRST ELEMENT
OF THE COURT'S TEST IS VIRTUALLY IDENTICAL TO THE MEMOIRS REQUIREMENT
THAT "THE DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE (MUST APPEAL)
TO A PRURIENT INTEREST IN SEX."  383 U.S., AT 418.  WHEREAS THE SECOND
PRONG OF THE MEMOIRS TEST DEMANDED THAT THE MATERIAL BE "PATENTLY
OFFENSIVE BECAUSE IT AFFRONTS CONTEMPORARY COMMUNITY STANDARDS RELATING
TO THE DESCRIPTION OR REPRESENTATION OF SEXUAL MATTER," IBID., THE TEST
ADOPTED TODAY REQUIRES THAT THE MATERIAL DESCRIBE, "IN A PATENTLY
OFFENSIVE WAY, SEXUAL CONDUCT SPECIFICALLY DEFINED BY THE APPLICABLE
STATE LAW." 

[[HC96'(ORIGINAL DOCUMENT PAGE 96)'  MILLER V. CALIFORNIA, ANTE, AT
24.  THE THIRD COMPONENT OF THE MEMOIRS TEST IS THAT THE MATERIAL MUST
BE "UTTERLY WITHOUT REDEEMING SOCIAL VALUE."  383 U.S., AT 418.  THE
COURT'S REPHRASING REQUIRES THAT THE WORK, TAKEN AS A WHOLE, MUST BE
PROVED TO LACK "SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC
VALUE."  MILLER, ANTE, AT 24.     THE COURT EVIDENTLY RECOGNIZES THAT
DIFFICULTIES WITH THE ROTH APPROACH NECESSITATE A SIGNIFICANT CHANGE OF
DIRECTION.  BUT THE COURT DOES NOT DESCRIBE ITS UNDERSTANDING OF THOSE
DIFFICULTIES, NOR DOES IT INDICATE HOW THE RESTATEMENT OF THE MEMOIRS
TEST IS IN ANY WAY RESPONSIVE TO THE PROBLEMS THAT HAVE ARISEN.  IN MY
VIEW, THE RESTATEMENT LEAVES UNRESOLVED THE VERY DIFFICULTIES THAT
COMPEL OUR REJECTION OF THE UNDERLYING ROTH APPROACH, WHILE AT THE SAME
TIME CONTRIBUTING SUBSTANTIAL DIFFICULTIES OF ITS OWN.  THE
MODIFICATION OF THE MEMOIRS TEST MAY PROVE SUFFICIENT TO JEOPARDIZE THE
ANALYTIC UNDERPINNINGS OF THE ENTIRE SCHEME.  AND TODAY'S RESTATEMENT
WILL LIKELY HAVE THE EFFECT, WHETHER OR NOT INTENDED, OF PERMITTING FAR
MORE SWEEPING SUPPRESSION OF SEXUALLY ORIENTED EXPRESSION, INCLUDING
EXPRESSION THAT WOULD ALMOST SURELY BE HELD PROTECTED UNDER OUR CURRENT
FORMULATION. 

ALTHOUGH THE COURT'S RESTATEMENT SUBSTANTIALLY TRACKS THE THREE-PART
TEST ANNOUNCED IN MEMOIRS V. MASSACHUSETTS, SUPRA, IT DOES PURPORT TO
MODIFY THE "SOCIAL VALUE" COMPONENT OF THE TEST.  INSTEAD OF REQUIRING,
AS DID ROTH AND MEMOIRS, THAT STATE SUPPRESSION BE LIMITED TO MATERIALS
UTTERLY LACKING IN SOCIAL VALUE, THE COURT TODAY PERMITS SUPPRESSION IF
THE GOVERNMENT CAN PROVE THAT THE MATERIALS LACK "SERIOUS LITERARY,
ARTISTIC, POLITICAL OR SCIENTIFIC VALUE." 

[[HC97'(ORIGINAL DOCUMENT PAGE 97)'  BUT THE DEFINITION OF
"OBSCENITY" AS EXPRESSION UTTERLY LACKING IN SOCIAL IMPORTANCE IS THE
KEY TO THE CONCEPTUAL BASIS OF ROTH AND OUR SUBSEQUENT OPINIONS.  IN
ROTH WE HELD THAT CERTAIN EXPRESSION IS OBSCENE, AND THUS OUTSIDE THE
PROTECTION OF THE FIRST AMENDMENT, PRECISELY BECAUSE IT LACKS EVEN THE
SLIGHEST REDEEMING SOCIAL VALUE.  SEE ROTH V. UNITED STATES, 354 U.S.,
AT 484 - 485; /14/  JACOBELLIS V. OHIO, 378 U.S., AT 191; ZEITLIN V.
ARNEBERGH, 59 CAL. 2D 901, 920, 383 P.2D 152, 165; CF. NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S. 254 (1964); GARRISON V. LOUISIANA, 379 U.S.
64, 75 (1964); CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572 (1942);
KALVEN, THE METAPHYSICS OF THE LAW OF OBSCENITY, 1960 SUP. CT. REV. 1. 
THE COURT'S APPROACH NECESSARILY ASSUMES THAT SOME WORKS WILL BE DEEMED
OBSCENE--EVEN THOUGH THEY CLEARLY HAVE SOME SOCIAL VALUE--BECAUSE THE
STATE WAS ABLE TO PROVE THAT THE VALUE, MEASURED BY SOME UNSPECIFIED
STANDARD, WAS NOT SUFFICIENTLY "SERIOUS" TO WARRANT CONSTITUTIONAL
PROTECTION.  THAT RESULT IS NOT MERELY INCONSISTENT WITH OUR HOLDING IN
ROTH; IT IS NOTHING LESS THAN A REJECTION OF THE FUNDAMENTAL FIRST
AMENDMENT PREMISES AND RATIONALE OF THE ROTH OPINION AND AN INVITATION
TO WIDESPREAD SUPPRESSION OF SEXUALLY ORIENTED SPEECH.  BEFORE TODAY,
THE PROTECTIONS OF THE FIRST AMENDMENT HAVE NEVER BEEN THOUGHT LIMITED
TO EXPRESSIONS OF SERIOUS LITERARY OR POLITICAL VALUE.  SEE GOODING V.
WILSON, 405 U.S. 518 (1972); COHEN V. CALIFORNIA, 403 U.S. 15, 25 - 26
(1971); TERMINIELLO V. CHICAGO, 337 U.S. 1, 4 - 5 (1949). 

[[HC98'(ORIGINAL DOCUMENT PAGE 98)' 

ALTHOUGH THE COURT CONCEDES THAT "ROTH PRESUMED 'OBSCENITY' TO BE
'UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE,'" IT ARGUES THAT MEMOIRS
PRODUCED "A DRASTICALLY ALTERED TEST THAT CALLED ON THE PROSECUTION TO
PROVE A NEGATIVE, I. E., THAT THE MATERIAL WAS 'UTTERLY WITHOUT
REDEEMING SOCIAL VALUE'--A BURDEN VIRTUALLY IMPOSSIBLE TO DISCHARGE
UNDER OUR CRIMINAL STANDARDS OF PROOF."  /15/  ONE SHOULD HARDLY NEED
TO POINT OUT THAT UNDER THE THIRD COMPONENT OF THE COURT'S TEST THE
PROSECUTION IS STILL REQUIRED TO "PROVE A NEGATIVE"--I.E., THAT THE
MATERIAL LACKS SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC
VALUE.  WHETHER IT WILL BE EASIER TO PROVE THAT MATERIAL LACKS
"SERIOUS" VALUE THAN TO PROVE THAT IT LACKS ANY VALUE AT ALL REMAINS,
OF COURSE, TO BE SEEN. 

IN ANY CASE, EVEN IF THE COURT'S APPROACH LEFT UNDAMAGED THE
CONCEPTUAL FRAMEWORK OF ROTH, AND EVEN IF IT CLEARLY BARRED THE
SUPPRESSION OF WORKS WITH AT LEAST SOME SOCIAL VALUE, I WOULD
NEVERTHELESS BE COMPELLED TO REJECT IT.  FOR IT IS BEYOND DISPUTE THAT
THE APPROACH CAN HAVE NO AMELIORATIVE IMPACT ON THE CLUSTER OF PROBLEMS
THAT GROW OUT OF THE VAGUENESS OF OUR CURRENT STANDARDS.  INDEED, EVEN
THE COURT MAKES NO ARGUMENT THAT THE REFORMULATION WILL PROVIDE FAIRER
NOTICE TO BOOKSELLERS, THEATER OWNERS, AND THE READING AND VIEWING
PUBLIC.  NOR DOES THE COURT CONTEND THAT THE APPROACH WILL PROVIDE
CLEARER GUIDANCE TO LAW ENFORCEMENT OFFICIALS OR REDUCE THE CHILL ON
PROTECTED EXPRESSION.  NOR, FINALLY, DOES THE COURT SUGGEST THAT THE
APPROACH WILL MITIGATE TO THE SLIGHTEST DEGREE THE INSTITUTIONAL
PROBLEMS THAT HAVE PLAGUED THIS COURT AND THE STATE AND FEDERAL
JUDICIARY AS A DIRECT RESULT OF THE UNCERTAINTY INHERENT IN ANY
DEFINITION OF OBSCENITY. 

OF COURSE, THE COURT'S RESTATED ROTH TEST DOES LIMIT THE DEFINITION
OF OBSCENITY TO DEPICTIONS OF PHYSICAL CONDUCT AND EXPLICIT SEXUAL
ACTS. 

[[HC99'(ORIGINAL DOCUMENT PAGE 99)'  AND THAT LIMITATION MAY SEEM,
AT FIRST GLANCE, A WELCOME AND CLARIFYING ADDITION TO THE ROTH-MEMOIRS
FORMULA.  BUT, JUST AS THE AGREEMENT IN ROTH ON AN ABSTRACT DEFINITION
OF OBSCENITY GAVE LITTLE HINT OF THE EXTREME DIFFICULTY THAT WAS TO
FOLLOW IN ATTEMPTING TO APPLY THAT DEFINITION TO SPECIFIC MATERIAL, THE
MERE FORMULATION OF A "PHYSICAL CONDUCT" TEST IS NO ASSURANCE THAT IT
CAN BE APPLIED WITH ANY GREATER FACILITY.  THE COURT DOES NOT INDICATE
HOW IT WOULD APPLY ITS TEST TO THE MATERIALS INVOLVED IN MILLER V.
CALIFORNIA, SUPRA, AND WE CAN ONLY SPECULATE AS TO ITS APPLICATION. 
BUT EVEN A CONFIRMED OPTIMIST COULD FIND LITTLE REALISTIC COMFORT IN
THE ADOPTION OF SUCH A TEST.  INDEED, THE VALIANT ATTEMPT OF ONE LOWER
FEDERAL COURT TO DRAW THE CONSTITUTIONAL LINE AT DEPICTIONS OF EXPLICIT
SEXUAL CONDUCT SEEMS TO BELIE ANY SUGGESTION THAT THIS APPROACH MARKS
THE ROAD TO CLARITY.  /16/  THE COURT SURELY DEMONSTRATES LITTLE
SENSITIVITY TO OUR INSITIUTIONAL PROBLEMS, MUCH LESS THE OTHER
VAGUENESS-RELATED DIFFICULTIES, IN ESTABLISHING A SYSTEM THAT REQUIRES
US TO CONSIDER WHETHER A DESCRIPTION OF HUMAN GENITALS IS SUFFICIENTLY
"LEWD" TO DEPRIVE IT OF CONSTITUTIONAL PROTECTION; WHETHER A SEXUAL ACT
IS "ULTIMATE"; WHETHER THE CONDUCT DEPICTED IN MATERIALS BEFORE US FITS
WITHIN ONE OF THE CATEGORIES OF CONDUCT WHOSE DEPICTION THE STATE AND
FEDERAL GOVERNMENTS HAVE ATTEMPTED TO SUPPRESS; AND A HOST OF EQUALLY
POINTLESS INQUIRIES.  IN ADDITION, ADOPTION OF SUCH A TEST DOES NOT,
PRESUMABLY, OBVIATE THE NEED FOR CONSIDERATION OF THE NUANCES OF
PRESENTATION OF SEXUALLY ORIENTED MATERIAL, YET IT HARDLY CLARIFIES THE
APPLICATION OF THOSE OPAQUE BUT IMPORTANT FACTORS. 

[[HC100'(ORIGINAL DOCUMENT PAGE 100)' 

IF THE APPLICATION OF THE "PHYSICAL CONDUCT" TEST TO PICTORIAL
MATERIAL IS FRAUGHT WITH DIFFICULTY, ITS APPLICATION TO TEXTUAL
MATERIAL CARRIES THE POTENTIAL FOR EXTRAORDINARY ABUSE.  SURELY WE HAVE
PASSED THE POINT WHERE THE MERE WRITTEN DESCRIPTION OF SEXUAL CONDUCT
IS DEPRIVED OF FIRST AMENDMENT PROTECTION.  YET THE TEST OFFERS NO
GUIDANCE TO US, OR ANYONE ELSE, IN DETERMINING WHICH WRITTEN
DESCRIPTIONS OF SEXUAL CONDUCT ARE PROTECTED, AND WHICH ARE NOT. 

ULTIMATELY, THE REFORMULATION MUST FAIL BECAUSE IT STILL LEAVES IN
THIS COURT THE RESPONSIBILITY OF DETERMINING IN EACH CASE WHETHER THE
MATERIALS ARE PROTECTED BY THE FIRST AMENDMENT.  THE COURT CONCEDES
THAT EVEN UNDER ITS RESTATED FORMULATION, THE FIRST AMENDMENT INTERESTS
AT STAKE REQUIRE "APPELLATE COURTS TO CONDUCT AN INDEPENDENT REVIEW OF
CONSTITUTIONAL CLAIMS WHEN NECESSARY,"  MILLER V. CALIFORNIA, ANTE, AT
25, CITING MR. JUSTICE HARLAN'S OPINION IN ROTH, WHERE HE STATED, "I DO
NOT UNDERSTAND HOW THE COURT CAN RESOLVE THE CONSTITUTION PROBLEMS NOW
BEFORE IT WITHOUT MAKING ITS OWN INDEPENDENT JUDGMENT UPON THE
CHARACTER OF THE MATERIAL UPON WHICH THESE CONVICTIONS WERE BASED." 
354 U.S., AT 498.  THUS, THE COURT'S NEW FORMULATION WILL NOT RELIEVE
US OF "THE AWESOME TASK OF MAKING CASE BY CASE AT ONCE THE CRIMINAL AND
THE CONSTITUTIONAL LAW."  /17/  AND THE CAREFUL EFFORTS OF STATE AND
LOWER FEDERAL COURTS TO APPLY THE STANDARD WILL REMAIN AN ESSENTIALLY
POINTLESS EXERCISE, IN VIEW OF THE NEED FOR AN ULTIMATE DECISION BY
THIS COURT.  IN ADDITION, SINCE THE STATUS OF SEXUALLY ORIENTED
MATERIAL WILL NECESSARILY REMAIN IN DOUBT UNTIL FINAL DECISION BY THIS
COURT, THE NEW APPROACH WILL NOT DIMINISH THE CHILL ON PROTECTED
EXPRESSION THAT DERIVES FROM THE UNCERTAINTY OF THE UNDERLYING
STANDARD. 

[[HC101'(ORIGINAL DOCUMENT PAGE 101)'  I AM CONVINCED THAT A
DEFINITION OF OBSCENITY IN TERMS OF PHYSICAL CONDUCT CANNOT PROVIDE
SUFFICIENT CLARITY TO AFFORD FAIR NOTICE, TO AVOID A CHILL ON PROTECTED
EXPRESSION, AND TO MINIMIZE THE INSTITUTIONAL STRESS, SO LONG AS THAT
DEFINITION IS USED TO JUSTIFY THE OUTRIGHT SUPPRESSION OF ANY MATERIAL
THAT IS ASSERTED TO FALL WITHIN ITS TERMS. 

3.  I HAVE ALSO CONSIDERED THE POSSIBILITY OF REDUCING OUR OWN ROLE,
AND THE ROLE OF APPELLATE COURTS GENERALLY, IN DETERMINING WHETHER
PARTICULAR MATTER IS OBSCENE.  THUS, WE MIGHT CONCLUDE THAT JURIES ARE
BEST SUITED TO DETERMINE OBSCENITY VEL NON AND THAT JURY VERDICTS IN
THIS AREA SHOULD NOT BE SET ASIDE EXCEPT IN CASES OF EXTREME DEPARTURE
FROM PREVAILING STANDARDS.  OR, MORE GENERALLY, WE MIGHT ADOPT THE
POSITION THAT WHERE A LOWER FEDERAL OR STATE COURT HAS CONSCIENTIOUSLY
APPLIED THE CONSTITUTIONAL STANDARD, ITS FINDING OF OBSCENITY WILL BE
NO MORE VULNERABLE TO REVERSAL BY THIS COURT THAN ANY FINDING OF FACT. 
CF. INTERSTATE CIRCUIT, INC. V. DALLAS, 390 U.S., AT 706 - 707
(SEPARATE OPINION OF HARLAN, J.).  WHILE THE POINT WAS NOT CLEARLY
RESOLVED PRIOR TO OUR DECISION IN REDRUP V. NEW YORK, 386 U.S. 767
(1967), /18/  IT IS IMPLICIT IN THAT DECISION THAT THE FIRST AMENDMENT
REQUIRES AN INDEPENDENT REVIEW BY APPELLATE COURTS OF THE
CONSTITUTIONAL FACT OF OBSCENITY.  /19/ 

[[HC102'(ORIGINAL DOCUMENT PAGE 102)'  THAT RESULT IS REQUIRED BY
PRINCIPLES APPLICABLE TO THE OBSCENITY ISSUE NO LESS THAN TO ANY OTHER
AREA INVOLVING FREE EXPRESSION, SEE, E. G., NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S., AT 284 - 285 (1964), OR OTHER CONSTITUTIONAL
RIGHT.  /20/  IN ANY EVENT, EVEN IF THE CONSTITUTION WOULD PERMIT US TO
REFRAIN FROM JUDGING FOR OURSELVES THE ALLEGED OBSCENITY OF PARTICULAR
MATERIALS, THAT APPROACH WOULD SOLVE AT BEST ONLY A SMALL PART OF OUR
PROBLEM.  FOR WHILE IT WOULD MITIGATE THE INSTITUTIONAL STRESS PRODUCED
BY THE ROTH APPROACH, IT WOULD NEITHER OFFER NOR PRODUCE ANY CURE FOR
THE OTHER VICES OF VAGUENESS.  FAR FROM PROVIDING A CLEARER GUIDE TO
PERMISSIBLE PRIMARY CONDUCT, THE APPROACH WOULD INEVITABLY LEAD TO EVEN
GREATER UNCERTAINTY AND THE CONSEQUENT DUE PROCESS PROBLEMS OF FAIR
NOTICE.  AND THE APPROACH WOULD EXPOSE MUCH PROTECTED, SEXUALLY
ORIENTED EXPRESSION TO THE VAGARIES OF JURY DETERMINATIONS.  CF.
HERNDON V. LOWRY, 301 U.S. 242, 263 (1937).  PLAINLY, THE INSTITUTIONAL
GAIN WOULD BE MORE THAN OFFSET BY THE UNPRECEDENTED INFRINGEMENT OF
FIRST AMENDMENT RIGHTS. 

4.  FINALLY, I HAVE CONSIDERED THE VIEW, URGED SO FORCEFULLY SINCE
1957 BY OUR BROTHERS BLACK AND DOUGLAS, THAT THE FIRST AMENDMENT BARS
THE SUPPRESSION OF ANY SEXUALLY ORIENTED EXPRESSION.  THAT POSITION
WOULD EFFECT A SHARP REDUCTION, ALTHOUGH PERHAPS NOT A TOTAL
ELIMINATION, OF THE UNCERTAINTY THAT SURROUNDS OUR CURRENT APPROACH. 

[[HC103'(ORIGINAL DOCUMENT PAGE 103)'  NEVERTHELESS, I AM CONVINCED
THAT IT WOULD ACHIEVE THAT DESIRABLE GOAL ONLY BY STRIPPING THE STATES
OF POWER TO AN EXTENT THAT CANNOT BE JUSTIFIED BY THE COMMANDS OF THE
CONSTITUTION, AT LEAST SO LONG AS THERE IS AVAILABLE AN ALTERNATIVE
APPROACH THAT STRIKES A BETTER BALANCE BETWEEN THE GUARANTEE OF FREE
EXPRESSION AND THE STATES' LEGITIMATE INTERESTS. 

        V 

OUR EXPERIENCE SINCE ROTH REQUIRES US NOT ONLY TO ABANDON THE EFFORT
TO PICK OUT OBSCENE MATERIALS ON A CASE-BY-CASE BASIS, BUT ALSO TO
RECONSIDER A FUNDAMENTAL POSTULATE OF ROTH:  THAT THERE EXISTS A
DEFINABLE CLASS OF SEXUALLY ORIENTED EXPRESSION THAT MAY BE TOTALLY
SUPPRESSED BY THE FEDERAL AND STATE GOVERNMENTS.  ASSUMING THAT SUCH A
CLASS OF EXPRESSION DOES IN FACT EXIST, /21/  I AM FORCED TO CONCLUDE
THAT THE CONCEPT OF "OBSCENITY" CANNOT BE DEFINED WITH SUFFICIENT
SPECIFICITY AND CLARITY TO PROVIDE FAIR NOTICE TO PERSONS WHO CREATE
AND DISTRIBUTE SEXUALLY ORIENTED MATERIALS, TO PREVENT SUBSTANTIAL
EROSION OF PROTECTED SPEECH AS A BYPRODUCT OF THE ATTEMPT TO SUPPRESS
UNPROTECTED SPEECH, AND TO AVOID VERY COSTLY INSTITUTIONAL HARMS. 
GIVEN THESE INEVITABLE SIDE EFFECTS OF STATE EFFORTS TO SUPPRESS WHAT
IS ASSUMED TO BE UNPROTECTED SPEECH, WE MUST SCRUTINIZE WITH CARE THE
STATE INTEREST THAT IS ASSERTED TO JUSTIFY THE SUPPRESSION.  FOR IN THE
ABSENCE OF SOME VERY SUBSTANTIAL INTEREST IN SUPPRESSING SUCH SPEECH,
WE CAN HARDLY CONDONE THE ILL EFFECTS THAT SEEM TO FLOW INEVITABLY FROM
THE EFFORT.  /22/ 

OBSCENITY LAWS HAVE A LONG HISTORY IN THIS COUNTRY. 

[[HC104'(ORIGINAL DOCUMENT PAGE 104)'  MOST OF THE STATES THAT HAD
RATIFIED THE CONSTITUTION BY 1792 PUNISHED THE RELATED CRIME OF
BLASPHEMY OR PROFANITY DESPITE THE GUARANTEES OF FREE EXPRESSION IN
THEIR CONSTITUTIONS, AND MASSACHUSETTS EXPRESSLY PROHIBITED THE
"COMPOSING, WRITING, PRINTING OR PUBLISHING, OF ANY FILTHY OBSCENE OR
PROPHANE SONG, PAMPHLET, LIBEL OR MOCK-SERMON, IN IMITATION OR IN
MIMICKING OF PREACHING, OR ANY OTHER PART OF DIVINE WORSHIP."  ACTS AND
LAWS OF MASSACHUSETTS BAY COLONY (1726), ACTS OF 1711 - 1712, C. 1, P.
218.  IN 1815 THE FIRST REPORTED OBSCENITY CONVICTION WAS OBTAINED
UNDER THE COMMON LAW OF PENNSYLVANIA.  SEE COMMONWEALTH V. SHARPLESS, 2
S. & R. 91.  A CONVICTION IN MASSACHUSETTS UNDER ITS COMMON LAW AND
COLONIAL STATUTE FOLLOWED SIX YEARS LATER.  SEE COMMONWEALTH V. HOLMES,
17 MASS. 336 (1821).  IN 1821 VERMONT PASSED THE FIRST STATE LAW
PROSCRIBING THE PUBLICATION OR SALE OF "LEWD OR OBSCENE" MATERIAL, LAWS
OF VERMONT, 1824, C. XXXII, NO. 1, ^ 23, AND FEDERAL LEGISLATION
BARRING THE IMPORTATION OF SIMILAR MATTER APPEARED IN 1842.  SEE
CUSTOMS LAW OF 1842, ^ 28, 5 STAT. 566.  ALTHOUGH THE NUMBER OF EARLY
OBSCENITY LAWS WAS SMALL AND THEIR ENFORCEMENT EXCEEDINGLY LAX, THE
SITUATION SIGNIFICANTLY CHANGED AFTER ABOUT 1870 WHEN FEDERAL AND STATE
GOVERNMENTS, MAINLY AS A RESULT OF THE EFFORTS OF ANTHONY COMSTOCK,
TOOK AN ACTIVE INTEREST IN THE SUPPRESSION OF OBSCENITY. 
[[HC105'(ORIGINAL DOCUMENT PAGE 105)'  BY THE END OF THE 19TH CENTURY
AT LEAST 30 STATES HAD SOME TYPE OF GENERAL PROHIBITION ON THE
DISSEMINATION OF OBSCENE MATERIALS, AND BY THE TIME OF OUR DECISION IN
ROTH NO STATE WAS WITHOUT SOME PROVISION ON THE SUBJECT.  THE FEDERAL
GOVERNMENT MEANWHILE HAD ENACTED NO FEWER THAN 20 OBSCENITY LAWS
BETWEEN 1842 AND 1956.  SEE ROTH V. UNITED STATES, 354 U.S., AT 482 -
483, 485; REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY 300 -
301 (1970). 

THIS HISTORY CAUSED US TO CONCLUDE IN ROTH "THAT THE UNCONDITIONAL
PHRASING OF THE FIRST AMENDMENT (THAT 'CONGRESS SHALL MAKE NO LAW . . .
ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS . . .') WAS NOT
INTENDED TO PROTECT EVERY UTTERANCE."  354 U.S., AT 483.  IT ALSO
CAUSED US TO HOLD, AS NUMEROUS PRIOR DECISIONS OF THIS COURT HAD
ASSUMED, SEE ID., AT 481, THAT OBSCENITY COULD BE DENIED THE PROTECTION
OF THE FIRST AMENDMENT AND HENCE SUPPRESSED BECAUSE IT IS A FORM OF
EXPRESSION "UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE," ID., AT 484,
AS "MIRRORED IN THE UNIVERSAL JUDGEMENT THAT (IT) SHOULD BE RESTRAINED
. . . ."  ID., AT 485. 

BECAUSE WE ASSUMED--INCORRECTLY, AS EXPERIENCE HAS PROVED--THAT
OBSCENITY COULD BE SEPARATED FROM OTHER SEXUALLY ORIENTED EXPRESSION
WITHOUT SIGNIFICANT COSTS EITHER TO THE FIRST AMENDMENT OR TO THE
JUDICIAL MACHINERY CHARGED WITH THE TASK OF SAFEGUARDING FIRST
AMENDMENT FREEDOMS, WE HAD NO OCCASION IN ROTH TO PROBE THE ASSERTED
STATE INTEREST IN CURTAILING UNPROTECTED, SEXUALLY ORIENTED SPEECH. 
YET, AS WE HAVE INCREASINGLY COME TO APPRECIATE THE VAGUENESS OF THE
CONCEPT OF OBSCENITY, WE HAVE BEGUN TO RECOGNIZE AND ARTICULATE THE
STATE INTERESTS AT STAKE.  SIGNIFICANTLY, IN REDRUP V. NEW YORK, 386
U.S. 767 (1967), WHERE WE SET ASIDE FINDINGS OF OBSCENITY WITH REGARD
TO THREE SETS OF MATERIAL, WE POINTED OUT THAT 

[[HC106'(ORIGINAL DOCUMENT PAGE 106)' 

"(IN NONE OF THE CASES WAS THERE A CLAIM THAT THE STATUTE IN
QUESTION REFLECTED A SPECIFIC AND LIMITED STATE CONCERN FOR JUVENILES. 
SEE PRINCE V. MASSACHUSETTS, 321 U.S. 158; CF. BUTLER V. MICHIGAN, 352
U.S. 380.  IN NONE WAS THERE ANY SUGGESTION OF AN ASSAULT UPON
INDIVIDUAL PRIVACY BY PUBLICATION IN A MANNER SO OBTRUSIVE AS TO MAKE
IT IMPOSSIBLE FOR AN UNWILLING INDIVIDUAL TO AVOID EXPOSURE TO IT.  CF.
BREARD V. ALEXANDRIA, 341 U.S. 622; PUBLIC UTILITIES COMM'N V. POLLAK,
343 U.S. 451.  AND IN NONE WAS THERE EVIDENCE OF THE SORT OF
'PANDERING' WHICH THE COURT FOUND SIGNIFICANT IN GINZBURG V. UNITED
STATES, 383 U.S. 463."  386 U.S., AT 769.  SEE ROWAN V. POST OFFICE
DEPT., 397 U.S. 728 (1970); STANLEY V. GEORGIA, 394 U.S., AT 567. 
/23/ 

THE OPINIONS IN REDRUP AND STANLEY V. GEORGIA REFLECTED OUR EMERGING
VIEW THAT THE STATE INTERESTS IN PROTECTING CHILDREN AND IN PROTECTING
UNCONSENTING ADULTS MAY STAND ON A DIFFERENT FOOTING FROM THE OTHER
ASSERTED STATE INTERESTS.  IT MAY WELL BE, AS ONE COMMENTATOR HAS
ARGUED, THAT "EXPOSURE TO (EROTIC MATERIAL) IS FOR SOME PERSONS AN
INTENSE EMOTIONAL EXPERIENCE.  A COMMUNICATION OF THIS NATURE, IMPOSED
UPON A PERSON CONTRARY TO HIS WISHES, HAS ALL THE CHARACTERISTICS OF A
PHYSICAL ASSAULT.  . . . 

[[HC107'(ORIGINAL DOCUMENT PAGE 107)'  (AND IT) CONSTITUTES AN
INVASION OF HIS PRIVACY . . . ."  /24/  BUT CF. COHEN V. CALIFORNIA,
403 U.S., AT 21 - 22.  SIMILARLY, IF CHILDREN ARE "NOT POSSESSED OF
THAT FULL CAPACITY FOR INDIVIDUAL CHOICE WHICH IS THE PRESUPPOSITION OF
THE FIRST AMENDMENT GUARANTEES," GINSBERG V. NEW YORK, 390 U.S., AT 649
- 650 (STEWART, J., CONCURRING); THEN THE STATE MAY HAVE A SUBSTANTIAL
INTEREST IN PRECLUDING THE FLOW OF OBSCENE MATERIALS EVEN TO CONSENTING
JUVENILES.  /25/  BUT CF. ID., AT 673 - 674 (FORTAS, J., DISSENTING). 

BUT, WHATEVER THE STRENGTH OF THE STATE INTERESTS IN PROTECTING
JUVENILES AND UNCONSENTING ADULTS FROM EXPOSURE TO SEXUALLY ORIENTED
MATERIALS, THOSE INTERESTS CANNOT BE ASSERTED IN DEFENSE OF THE HOLDING
OF THE GEORGIA SUPREME COURT IN THIS CASE.  THAT COURT ASSUMED FOR THE
PURPOSES OF ITS DECISION THAT THE FILMS IN ISSUE WERE EXHIBITED ONLY TO
PERSONS OVER THE AGE OF 21 WHO VIEWED THEM WILLINGLY AND WITH PRIOR
KNOWLEDGE OF THE NATURE OF THEIR CONTENTS.  AND ON THAT ASSUMPTION THE
STATE COURT HELD THAT THE FILMS COULD STILL BE SUPPRESSED.  THE
JUSTIFICATION FOR THE SUPPRESSION MUST BE FOUND, THEREFORE, IN SOME
INDEPENDENT INTEREST IN REGULATING THE READING AND VIEWING HABITS OF
CONSENTING ADULTS. 

AT THE OUTSET IT SHOULD BE NOTED THAT VIRTUALLY ALL OF THE INTERESTS
THAT MIGHT BE ASSERTED IN DEFENSE OF SUPPRESSION, LAYING ASIDE THE
SPECIAL INTERESTS ASSOCIATED WITH DISTRIBUTION TO JUVENILES AND
UNCONSENTING ADULTS, WERE ALSO POSITED IN STANLEY V. GEORGIA, SUPRA,
WHERE WE HELD THAT THE STATE COULD NOT MAKE THE "MERE PRIVATE
POSSESSION OF OBSCENE MATERIAL A CRIME."  ID., AT 568.  THAT DECISION
PRESAGES THE CONCLUSIONS I REACH HERE TODAY. 

IN STANLEY WE POINTED OUT THAT "(THERE APPEARS TO BE LITTLE
EMPIRICAL BASIS FOR" THE ASSERTION THAT "EXPOSURE TO OBSCENE MATERIALS
MAY LEAD TO DEVIANT SEXUAL BEHAVIOR OR CRIMES OF SEXUAL VIOLENCE." 

[[HC108'(ORIGINAL DOCUMENT PAGE 108)'  ID., AT 566 AND N. 9.  /26/
IN ANY EVENT, WE ADDED THAT "IF THE STATE IS ONLY CONCERNED ABOUT
PRINTED OR FILMED MATERIALS INDUCING ANTISOCIAL CONDUCT, WE BELIEVE
THAT IN THE CONTEXT OF PRIVATE CONSUMPTION OF IDEAS AND INFORMATION WE
SHOULD ADHERE TO THE VIEW THAT '(AMONG FREE MEN, THE DETERRENTS
ORDINARILY TO BE APPLIED TO PREVENT CRIME ARE EDUCATION AND PUNISHMENT
FOR VIOLATIONS OF THE LAW . . . .'  WHITNEY V. CALIFORNIA, 274 U.S.
357, 378 (1927) (BRANDEIS, J., CONCURRING)."  ID., AT 566 - 567. 

MOREOVER, IN STANLEY WE REJECTED AS "WHOLLY INCONSISTENT WITH THE
PHILOSOPHY OF THE FIRST AMENDMENT" ID., AT 566, THE NOTION THAT THERE
IS A LEGITIMATE STATE CONCERN IN THE "CONTROL (OF) THE MORAL CONTENT OF
A PERSON'S THOUGHTS," ID., AT 565, AND WE HELD THAT A STATE "CANNOT
CONSTITUTIONALLY PREMISE LEGISLATION ON THE DESIRABILITY OF CONTROLLING
A PERSON'S PRIVATE THOUGHTS."  ID., AT 566.  THAT IS NOT TO SAY, OF
COURSE, THAT A STATE MUST REMAIN UTTERLY INDIFFERENT TO--AND TAKE NO
ACTION BEARING ON--THE MORALITY OF THE COMMUNITY.  THE TRADITIONAL
DESCRIPTION OF STATE POLICE POWER DOES EMBRACE THE REGULATION OF MORALS
AS WELL AS THE HEALTH, SAFETY, AND GENERAL WELFARE OF THE CITIZENRY. 

[[HC109'(ORIGINAL DOCUMENT PAGE 109)'  SEE, E. G., VILLAGE OF EUCLID
V. AMBLER REALTY CO., 272 U.S. 365, 395 (1926).  AND MUCH LEGISLATION-
COMPULSORY PUBLIC EDUCATION LAWS, CIVIL RIGHTS LAWS, EVEN THE ABOLITION
OF CAPITAL PUNISHMENT--IS GROUNDED, AT LEAST IN PART, ON A CONCERN WITH
THE MORALITY OF THE COMMUNITY.  BUT THE STATE'S INTEREST IN REGULATING
MORALITY BY SUPPRESSING OBSCENITY, WHILE OFTEN ASSERTED, REMAINS
ESSENTIALLY UNFOCUSED AND ILL DEFINED.  AND, SINCE THE ATTEMPT TO
CURTAIL UNPROTECTED SPEECH NECESSARILY SPILLS OVER INTO THE AREA OF
PROTECTED SPEECH, THE EFFORT TO SERVE THIS SPECULATIVE INTEREST THROUGH
THE SUPPRESSION OF OBSCENE MATERIAL MUST TREAD HEAVILY ON RIGHTS
PROTECTED BY THE FIRST AMENDMENT. 

IN ROE V. WADE, 410 U.S. 113 (1973), WE HELD CONSTITUTIONALLY
INVALID A STATE ABORTION LAW, EVEN THOUGH WE WERE AWARE OF 

"THE SENSITIVE AND EMOTIONAL NATURE OF THE ABORTION CONTROVERSY, OF
THE VIGOROUS OPPOSING VIEWS, EVEN AMONG PHYSICIANS, AND OF THE DEEP AND
SEEMINGLY ABSOLUTE CONVICTIONS THAT THE SUBJECT INSPIRES.  ONE'S
PHILOSOPHY, ONE'S EXPERIENCES, ONE'S EXPOSURE TO THE RAW EDGES OF HUMAN
EXISTENCE, ONE'S RELIGIOUS TRAINING, ONE'S ATTITUDES TOWARD LIFE AND
FAMILY AND THEIR VALUES, AND THE MORAL STANDARDS ONE ESTABLISHES AND
SEEKS TO OBSERVE, ARE ALL LIKELY TO INFLUENCE AND TO COLOR ONE'S
THINKING AND CONCLUSIONS ABOUT ABORTION."  ID., AT 116.  LIKE THE
PROSCRIPTION OF ABORTIONS, THE EFFORT TO SUPPRESS OBSCENITY IS
PREDICATED ON UNPROVABLE, ALTHOUGH STRONGLY HELD, ASSUMPTIONS ABOUT
HUMAN BEHAVIOR, MORALITY, SEX, AND RELIGION.  /27/  THE EXISTENCE OF
THESE ASSUMPTIONS CANNOT VALIDATE A STATUTE THAT SUBSTANTIALLY
UNDERMINES THE GUARANTEES OF THE FIRST AMENDMENT, ANY MORE THAN THE
EXISTENCE OF SIMILAR ASSUMPTIONS ON THE ISSUE OF ABORTION CAN VALIDATE
A STATUTE THAT INFRINGES THE CONSTITUTIONALLY PROTECTED PRIVACY
INTERESTS OF A PREGNANT WOMAN. 

[[HC110'(ORIGINAL DOCUMENT PAGE 110)' 

IF, AS THE COURT TODAY ASSUMES, "A STATE LEGISLATURE MAY . . . ACT
ON THE . . . ASSUMPTION THAT COMMERCE IN OBSCENE BOOKS, OR PUBLIC
EXHIBITIONS FOCUSED ON OBSCENE CONDUCT, HAVE A TENDENCY TO EXERT A
CORRUPTING AND DEBASING IMPACT LEADING TO ANTISOCIAL BEHAVIOR,"  ANTE,
AT 63, THEN IT IS HARD TO SEE HOW STATE-ORDERED REGIMENTATION OF OUR
MINDS CAN EVER BE FORESTALLED.  FOR IF A STATE MAY, IN AN EFFORT TO
MAINTAIN OR CREATE A PARTICULAR MORAL TONE, PRESCRIBE WHAT ITS CITIZENS
CANNOT READ OR CANNOT SEE, THEN IT WOULD SEEM TO FOLLOW THAT IN PURSUIT
OF THAT SAME OBJECTIVE A STATE COULD DECREE THAT ITS CITIZENS MUST READ
CERTAIN BOOKS OR MUST VIEW CERTAIN FILMS.  CF. UNITED STATES V. ROTH,
237 F.2D 796, 823 (CA2 1956) (FRANK, J., CONCURRING).  HOWEVER LAUDABLE
ITS GOAL--AND THAT IS OBVIOUSLY A QUESTION ON WHICH REASONABLE MINDS
MAY DIFFER--THE STATE CANNOT PROCEED BY MEANS THAT VIOLATE THE
CONSTITUTION.  THE PRECISE POINT WAS ESTABLISHED A HALF CENTURY AGO IN
MEYER V. NEBRASKA, 262 U.S. 390 (1923). 

     "THAT THE STATE MAY DO MUCH, GO VERY FAR, INDEED, IN ORDER TO

IMPROVE THE QUALITY OF ITS CITIZENS, PHYSICALLY, MENTALLY AND

  MORALLY, IS CLEAR; BUT THE INDIVIDUAL HAS CERTAIN FUNDAMENTAL

  RIGHTS WHICH MUST BE RESPECTED.  THE PROTECTION OF THE

  CONSTITUTION EXTENDS TO ALL, TO THOSE WHO SPEAK OTHER LANGUAGES

  AS WELL AS TO THOSE BORN WITH ENGLISH ON THE TONGUE.  PERHAPS IT

  WOULD BE HIGHLY ADVANTAGEOUS IF ALL HAD READY UNDERSTANDING OF

  OUR ORDINARY SPEECH, BUT THIS CANNOT BE COERCED BY METHODS WHICH

  CONFLICT WITH THE CONSTITUTION--A DESIRABLE END CANNOT BE

  PROMOTED BY PROHIBITED MEANS. 

     "FOR THE WELFARE OF HIS IDEAL COMMONWEALTH, PLATO SUGGESTED A
LAW WHICH SHOULD PROVIDE: 

[[HC111'(ORIGINAL DOCUMENT PAGE 111)'

  'THAT THE WIVES OF OUR GUARDIANS ARE TO BE COMMON, AND THEIR
CHILDREN ARE TO BE COMMON, AND NO

  PARENT IS TO KNOW HIS OWN CHILD, NOR ANY CHILD HIS PARENT.  . . .
THE PROPER OFFICERS WILL

  TAKE THE OFFSPRING OF THE GOOD PARENTS TO THE PEN OR FOLD, AND
THERE THEY WILL DEPOSIT THEM

  WITH CERTAIN NURSES WHO DWELL IN A SEPARATE QUARTER; BUT THE
OFFSPRING OF THE INFERIOR, OR OF

  THE BETTER WHEN THEY CHANCE TO BE DEFORMED, WILL BE PUT AWAY IN
SOME MYSTERIOUS, UNKNOWN

  PLACE, AS THEY SHOULD BE.'  IN ORDER TO SUBMERGE THE INDIVIDUAL
AND DEVELOP IDEAL CITIZENS,

 SPARTA ASSEMBLED THE MALES AT SEVEN INTO BARRACKS AND INTRUSTED
THEIR SUBSEQUENT EDUCATION AND

  TRAINING TO OFFICIAL GUARDIANS.  ALTHOUGH SUCH MEASURES HAVE BEEN
DELIVERATELY APPROVED BY MEN

  OF GREAT GENIUS, THEIR IDEAS TOUCHING THE RELATION BETWEEN
INDIVIDUAL AND STATE WERE WHOLLY

  DIFFERENT FROM THOSE UPON WHICH OUR INSTITUTIONS REST; AND IT
HARDLY WILL BE AFFIRMED THAT ANY

  LEGISLATURE COULD IMPOSE SUCH RESTRICTIONS UPON THE PEOPLE OF A
STATE WITHOUT DOING VIOLENCE

  TO BOTH LETTER AND SPIRIT OF THE CONSTITUTION."  ID., AT 401 -
402. 

RECOGNIZING THESE PRINCIPLES, WE HAVE HELD THAT SO-CALLED THEMATIC
OBSCENITY--OBSCENITY WHICH MIGHT PERSUADE THE VIEWER OR READER TO
ENGAGE IN "OBSCENE" CONDUCT--IS NOT OUTSIDE THE PROTECTION OF THE FIRST
AMENDMENT: 

     "IT IS CONTENDED THAT THE STATE'S ACTION WAS JUSTIFIED BECAUSE

  THE MOTION PICTURE ATTRACTIVELY PORTRAYS A RELATIONSHIP WHICH IS

  CONTRARY TO THE MORAL STANDARDS, THE RELIGIOUS PRECEPTS, AND THE

  LEGAL CODE OF ITS CITIZENRY.  THIS ARGUMENT MISCONCEIVES WHAT IT

  IS THAT THE CONSTITUTION PROTECTS.  ITS GUARANTEE IS NOT CONFINED

  TO THE EXPRESSION OF IDEAS THAT ARE CONVENTIONAL OR SHARED BY A

  MAJORITY. 

[[HC112'(ORIGINAL DOCUMENT PAGE 112)'

  IT PROTECTS ADVOCACY OF THE OPINION THAT ADULTERY MAY SOMETIMES
BE PROPER, NO LESS THAN

  ADVOCACY OF SOCIALISM OR THE SINGLE TAX.  AND IN THE REALM OF
IDEAS IT PROTECTS EXPRESSION

  WHICH IS ELOQUENT NO LESS THAN THAT WHICH IS UNCONVINCING." 
KINGSLEY PICTURES

CORP. V. REGENTS, 360 U.S. 684, 688 - 689 (1959).  EVEN A
LEGITIMATE, SHARPLY FOCUSED STATE CONCERN FOR THE MORALITY OF THE
COMMUNITY CANNOT, IN OTHER WORDS, JUSTIFY AN ASSAULT ON THE PROTECTIONS
OF THE FIRST AMENDMENT.  CF. GRISWOLD V. CONNECTICUT, 381 U.S. 479
(1965); EISENSTADT V. BAIRD, 405 U.S. 438 (1972); LOVING V. VIRGINIA,
388 U.S. 1 (1967).  WHERE THE STATE INTEREST IN REGULATION OF MORALITY
IS VAGUE AND ILL DEFINED, INTERFERENCE WITH THE GUARANTEES OF THE FIRST
AMENDMENT IS EVEN MORE DIFFICULT TO JUSTIFY.  /28/ 

IN SHORT, WHILE I CANNOT SAY THAT THE INTERESTS OF THE STATE--APART
FROM THE QUESTION OF JUVENILES AND UNCONSENTING ADULTS--ARE TRIVIAL OR
NONEXISTENT, I AM COMPELLED TO CONCLUDE THAT THESE INTERESTS CANNOT
JUSTIFY THE SUBSTANTIAL DAMAGE TO CONSTITUTIONAL RIGHTS AND TO THIS
NATION'S JUDICIAL MACHINERY THAT INEVITABLY RESULTS FROM STATE EFFORTS
TO BAR THE DISTRIBUTION EVEN OF UNPROTECTED MATERIAL TO CONSENTING
ADULTS.     [[HC113'(ORIGINAL DOCUMENT PAGE 113)'  NAACP V. ALABAMA,
377 U.S. 288, 307 (1964); CANTWELL V. CONNECTICUT, 310 U.S., AT 304.  I
WOULD HOLD, THEREFORE, THAT AT LEAST IN THE ABSENCE OF DISTRIBUTION TO
JUVENILES OR OBTRUSIVE EXPOSURE TO UNCONSENTING ADULTS, THE FIRST AND
FOURTEENTH AMENDMENTS PROHIBIT THE STATE AND FEDERAL GOVERNMENTS FROM
ATTEMPTING WHOLLY TO SUPPRESS SEXUALLY ORIENTED MATERIALS ON THE BASIS
OF THEIR ALLEGEDLY "OBSCENE"  CONTENTS.  NOTHING IN THIS APPROACH
PRECLUDES THOSE GOVERNMENTS FROM TAKING ACTION TO SERVE WHAT MAY BE
STRONG AND LEGITIMATE INTERESTS THROUGH REGULATION OF THE MANNER OF
DISTRIBUTION OF SEXUALLY ORIENTED MATERIAL. 

        VI     TWO TERMS AGO WE NOTED THAT 

"THERE IS DEVELOPING SENTIMENT THAT ADULTS SHOULD HAVE COMPLETE
FREEDOM TO PRODUCE, DEAL IN, POSSESS AND CONSUME WHATEVER COMMUNICATIVE
MATERIALS MAY APPEAL TO THEM AND THAT THE LAW'S INVOLVEMENT WITH
OBSCENITY SHOULD BE LIMITED TO THOSE SITUATIONS WHERE CHILDREN ARE
INVOLVED OR WHERE IT IS NECESSARY TO PREVENT IMPOSITION ON UNWILLING
RECIPIENTS OF WHATEVER AGE.  THE CONCEPTS INVOLVED ARE SAID TO BE SO
ELUSIVE AND THE LAWS SO INHERENTLY UNENFORCEABLE WITHOUT EXTRAVAGANT
EXPENDITURES OF TIME AND EFFORT BY ENFORCEMENT OFFICERS AND THE COURTS
THAT BASIC REASSESSMENT IS NOT ONLY WISE BUT ESSENTIAL."  UNITED STATES
V. REIDEL, 402 U.S., AT 357.  NEVERTHELESS, WE CONCLUDED THAT "THE TASK
OF RESTRUCTURING THE OBSCENITY LAWS LIE WITH THOSE WHO PASS, REPEAL,
AND AMEND STATUTES AND ORDINANCES."  IBID.  BUT THE LAW OF OBSCENITY
HAS BEEN FASHIONED BY THIS COURT--AND NECESSARILY SO UNDER OUR DUTY TO
ENFORCE THE CONSTITUTION.  IT IS SURELY THE DUTY OF THIS COURT, AS
EXPOUNDER OF THE CONSTITUTION, TO PROVIDE A REMEDY FOR THE PRESENT
UNSATISFACTORY STATE OF AFFAIRS. 

[[HC114'(ORIGINAL DOCUMENT PAGE 114)'  I DO NOT PRETEND TO HAVE
FOUND A COMPLETE AND INFALLIBLE ANSWER TO WHAT MR. JUSTICE HARLAN
CALLED "THE INTRACTABLE OBSCENITY PROBLEM."  INTERSTATE CIRCUIT, INC.
V. DALLAS, 390 U.S., AT 704 (SEPARATE OPINION).  SEE ALSO MEMOIRS V.
MASSACHUSETTS, 383 U.S., AT 456 (DISSENTING OPINION).  DIFFICULT
QUESTIONS MUST STILL BE FACED, NOTABLY IN THE AREAS OF DISTRIBUTION TO
JUVENILES AND OFFENSIVE EXPOSURE TO UNCONSENTING ADULTS.  WHATEVER THE
EXTENT OF STATE POWER TO REGULATE IN THOSE AREAS, /29/  IT SHOULD BE
CLEAR THAT THE VIEW I ESPOUSE TODAY WOULD INTRODUCE A LARGE MEASURE OF
CLARITY TO THIS TROUBLED AREA, WOULD REDUCE THE INSTITUTIONAL PRESSURE
ON THIS COURT AND THE REST OF THE STATE AND FEDERAL JUDICIARY, AND
WOULD GUARANTEE FULLER FREEDOM OF EXPRESSION WHILE LEAVING ROOM FOR THE
PROTECTION OF LEGITIMATE GOVERNMENTAL INTERESTS.  SINCE THE SUPREME
COURT OF GEORGIA ERRONEOUSLY CONCLUDED THAT THE STATE HAS POWER TO
SUPPRESS SEXUALLY ORIENTED MATERIAL EVEN IN THE ABSENCE OF DISTRIBUTION
TO JUVENILES OR EXPOSURE TO UNCONSENTING ADULTS, I WOULD REVERSE THAT
JUDGMENT AND REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

[[DFN 

/1/  GA. CODE ANN. ^ 26 - 2101 PROVIDES IN PERTINENT PART THAT 

"(B) MATERIAL IS OBSCENE IF CONSIDERED AS A WHOLE, APPLYING
COMMUNITY STANDARDS, ITS PREDOMINANT APPEAL IS TO PRURIENT INTEREST,
THAT IS, A SHAMEFUL OR MORBID INTEREST IN NUDITY, SEX OR EXCRETION, AND
UTTERLY WITHOUT REDEEMING SOCIAL VALUE AND IF, IN ADDITION, IT GOES
SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN DESCRIBING OR
REPRESENTING SUCH MATTERS.  UNDEVELOPED PHOTOGRAPHS, MOLDS, PRINTING
PLATES AND THE LIKE SHALL BE DEEMED OBSCENE NOTWITHSTANDING THAT
PROCESSING OR OTHER ACTS MAY BE REQUIRED TO MAKE THE OBSCENITY PATENT
OR TO DISSEMINATE IT." 

/2/  GA. CODE SEC. 26 - 2101 (A): 

"A PERSON COMMITS THE OFFENSE OF DISTRIBUTING OBSCENE MATERIALS (AS
DESCRIBED IN SUBSECTION (B), N. 1, SUPRA) WHEN HE SELLS, LENDS, RENTS,
LEASES, GIVES, ADVERTISES, PUBLISHES, EXHIBITS OR OTHERWISE
DISSEMINATES TO ANY PERSON ANY OBSCENE MATERIAL OF ANY DESCRIPTION,
KNOWING THE OBSCENE NATURE THEREOF, OR WHO OFFERS TO DO SO, OR WHO
POSSESSES SUCH MATERIAL WITH THE INTENT SO TO DO . . . ." 

/3/  THE PRECISE HOLDING OF THE TRIAL COURT IS NOT FREE FROM
AMBIGUITY.  AFTER POINTING OUT THAT THE FILMS COULD BE CONSIDERED
OBSCENE, AND THAT THEY STILL COULD NOT BE SUPPRESSED IN THE ABSENCE OF
EXPOSURE TO JUVENILES OR UNCONSENTING ADULTS, THE TRIAL COURT CONCLUDED
THAT "(IT IS THE JUDGMENT OF THIS COURT THAT THE FILMS, EVEN THOUGHT
THEY DISPLAY THE HUMAN BODY AND THE HUMAN PERSONALITY IN A MOST
DEGRADING FASHION, ARE NOT OBSCENE."  IT IS NOT CLEAR WHETHER THE TRIAL
COURT FOUND THAT THE FILMS WERE NOT OBSCENE IN THE SENSE THAT THEY WERE
PROTECTED EXPRESSION UNDER THE STANDARDS OF ROTH V. UNITED STATES, 354
U.S. 476 (1957), AND REDRUP V. NEW YORK, 386 U.S. 767 (1967), OR
WHETHER IT USED THE EXPRESSION "NOT OBSCENE" AS A TERM OR ART TO
INDICATE THAT THE FILMS COULD NOT BE SUPPRESSED EVEN THOUGH THEY WERE
NOT PROTECTED UNDER THE ROTH-REDRUP STANDARDS.  IN ANY CASE, THE
GEORGIA SUPREME COURT VIEWED THE TRIAL COURT'S OPINION AS HOLDING THAT
THE FILMS COULD NOT BE SUPPRESSED, EVEN IF THEY WERE UNPROTECTED
EXPRESSION, PROVIDED THAT THEY WERE NOT EXHIBITED TO JUVENILES OR
UNCONSENTING ADULTS. 

/4/  "AS TO ALL SUCH PROBLEMS, THIS COURT SAID IN THORNHILL V.
ALABAMA, 310 U.S. 88, 101 - 102 (1940): 

"'THE FREEDOM OF SPEECH AND OF THE PRESS GUARANTEED BY THE
CONSTITUTION EMBRACES AT THE LEAST THE LIBERTY TO DISCUSS PUBLICLY AND
TRUTHFULLY ALL MATTERS OF PUBLIC CONCERN WITHOUT PREVIOUS RESTRAINT OR
FEAR OF SUBSEQUENT PUNISHMENT.  THE EXIGENCIES OF THE COLONIAL PERIOD
AND THE EFFORTS TO SECURE FREEDOM FROM OPPRESSIVE ADMINISTRATION
DEVELOPED A BROADENED CONCEPTION OF THESE LIBERTIES AS ADEQUATE TO
SUPPLY THE PUBLIC NEED FOR INFORMATION AND EDUCATION WITH RESPECT TO
THE SIGNIFICANT ISSUES OF THE TIMES.  . . . FREEDOM OF DISCUSSION, IF
IT WOULD FULFILL ITS HISTORIC FUNCTION IN THIS NATION, MUST EMBRACE ALL
ISSUES ABOUT WHICH INFORMATION IS NEEDED OR APPROPRIATE TO ENABLE THE
MEMBERS OF SOCIETY TO COPE WITH THE EXIGENCIES OF THEIR PERIOD.' 
(EMPHASIS ADDED.)"  ROTH, 354 U.S., AT 487 - 488.  SEE ALSO, E. G.,
THOMAS V. COLLINS, 323 U.S. 516, 531 (1945) ("THE RIGHTS OF FREE SPEECH
AND A FREE PRESS ARE NOT CONFINED TO ANY FIELD OF HUMAN INTEREST"). 

/5/  SEE, E. G., KALVEN, THE METAPHYSICS OF THE LAW OF OBSCENITY,
1960 SUP. CT. REV. 1, 10 - 11; CF. BEAUHARNAIS V. ILLINOIS, 343 U.S.
250 (1952). 

/6/  SEE, E. G., T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 487
(1970); KALVEN, SUPRA, N. 5; COMMENT, MORE ADO ABOUT DIRTY BOOKS, 75
YALE L. J. 1364 (1966). 

/7/  ON THE QUESTION OF COMMUNITY STANDARDS SEE ALSO HOYT V.
MINNESOTA, 399 U.S. 524 (1970) (BLACKMUN, J., JOINED BY BURGER, C. J.,
AND HARLAN, J., DISSENTING) (FLEXIBILITY FOR STATE STANDARDS); CAIN V.
KENTUCKY, 397 U.S. 319 (1970) (BURGER, C. J., DISSENTING) (SAME);
MANUAL ENTERPRISES V. DAY, 370 U.S. 478, 488 (1962) (HARLAN, J., JOINED
BY STEWART, J.)  (NATIONAL STANDARDS IN CONTEXT OF FEDERAL
PROSECUTION. 

/8/  NO FEWER THAN 31 CASES HAVE BEEN DISPOSED OF IN THIS FASHION. 
ASIDE FROM THE THREE CASES REVERSED IN REDRUP, THEY ARE:  KENEY V. NEW
YORK, 388 U.S. 440 (1967); FRIEDMAN V. NEW YORK, 388 U.S. 441 (1967);
RATNER V. CALIFORNIA, 388 U.S. 442 (1967); COBERT V. NEW YORK, 388 U.S.
443 (1967); SHEPERD V. NEW YORK, 388 U.S. 444 (1967); AVANSINO V. NEW
YORK, 388 U.S. 446 (1967); ADAY V. NEW YORK, 388 U.S. 447 (1967);
BOOKS, INC. V. UNITED STATES, 388 U.S. 449 (1967); A QUANTITY OF BOOKS
V. KANSAS, 388 U.S. 452 (1967); MAZES V. OHIO, 388 U.S. 453 (1967);
SCHACKMAN V. CALIFORNIA, 388 U.S. 454 (1967); POTOMAC NEWS CO. V.
UNITED STATES, 389 U.S. 47 (1967); CONNER V. CITY OF HAMMOND, 389 U.S.
48 (1967); CENTRAL MAGAZINE SALES, LTD. V. UNITED STATES, 389 U.S. 50
(1967); CHANCE V. CALIFORNIA, 389 U.S. 89 (1967); I. M. AMUSEMENT CORP.
V. OHIO, 389 U.S. 573 (1968); ROBERT-ARTHUR MANAGEMENT CORP. V.
TENNESSEE, 389 U.S. 578 (1968); FELTON V. CITY OF PENSACOLA, 390 U.S.
340 (1968); HENRY V. LOUISIANA, 392 U.S. 655 (1968); CAIN V. KENTUCKY,
SUPRA; BLOSS V. DYKEMA, 398 U.S. 278 (1970); WALKER V. OHIO, 398 U.S.
434 (1970); HOYT V. MINNESOTA, SUPRA; CHILDS V. OREGON, 401 U.S. 1006
(1971); BLOSS V. MICHIGAN, 402 U.S. 938 (1971); BURGIN V. SOUTH
CAROLINA, 404 U.S. 809 (1971); HARTSTEIN V. MISSOURI, 404 U.S. 988
(1971); WIENER V. CALIFORNIA, 404 U.S. 988 (1971). 

/9/  ALTHOUGH I DID NOT JOIN THE OPINION OF THE COURT IN STANLEY V.
GEORGIA, 394 U.S. 557 (1969), I AM NOW INCLINED TO AGREE THAT "THE
CONSTITUTION PROTECTS THE RIGHT TO RECEIVE INFORMATION AND IDEAS,"  AND
THAT "(THIS RIGHT TO RECEIVE INFORMATION AND IDEAS, REGARDLESS OF THEIR
SOCIAL WORTH . . . IS FUNDAMENTAL TO OUR FREE SOCIETY.  ID., AT 564." 
SEE MARTIN V. CITY OF STRUTHERS, 319 U.S. 141, 143 (1943); WINTERS V.
NEW YORK, 333 U.S. 507, 510 (1948); LAMONT V. POSTMASTER GENERAL, 381
U.S. 301, 307 - 308 (1965) (CONCURRING OPINION).  THIS RIGHT IS CLOSELY
TIED, AS STANLEY RECOGNIZED, TO "THE RIGHT TO BE FREE, EXCEPT IN VERY
LIMITED CIRCUMSTANCES, FROM UNWARRANTED GOVERNMENTAL INTRUSIONS INTO
ONE'S PRIVACY."  394 U.S., AT 564.  SEE GRISWOLD V. CONNECTICUT, 381
U.S. 479 (1965); OLMSTEAD V. UNITED STATES, 277 U.S. 438, 478 (1928)
(BRANDEIS, J., DISSENTING).  IT IS SIMILARLY RELATED TO "THE RIGHT OF
THE INDIVIDUAL, MARRIED OR SINGLE, TO BE FREE FROM UNWARRANTED
GOVERNMENTAL INTRUSION INTO MATTERS SO FUNDAMENTALLY AFFECTING A PERSON
AS THE DECISION WHETHER TO BEAR OR BEGET A CHILD," (ITALICS OMITTED)
EISENSTADT V. BAIRD, 405 U.S. 438, 453 (1972), AND THE RIGHT TO
EXERCISE "AUTONOMOUS CONTROL OVER THE DEVELOPMENT AND EXPRESSION OF
ONE'S INTELLECT, INTERESTS, TASTES, AND PERSONALITY."  (ITALICS
OMITTED.)  DOE V. BOLTON, 410 U.S. 179, 211 (1973) (DOUGLAS, J.,
CONCURRING).  IT SEEMS TO ME THAT THE RECOGNITION OF THESE INTERTWINING
RIGHTS CALLS IN QUESTION THE VALIDITY OF THE TWO-LEVEL APPROACH
RECOGNIZED IN ROTH.  AFTER ALL, IF A PERSON HAS THE RIGHT TO RECEIVE
INFORMATION WITHOUT REGARD TO ITS SOCIAL WORTH--THAT IS, WITHOUT REGARD
TO ITS OBSCENITY--THEN IT WOULD SEEM TO FOLLOW THAT A STATE COULD NOT
CONSTITUTIONALLY PUNISH ONE WHO UNDERTAKES TO PROVIDE THIS INFORMATION
TO A WILLING, ADULT RECIPIENT.  SEE EISENSTADT V. BAIRD, SUPRA, AT 443
446.  IN ANY EVENT, I NEED NOT RELY ON THIS LINE OF ANALYSIS OR
EXPLORE ALL OF ITS POSSIBLE RAMIFICATIONS, FOR THERE IS AVAILABLE A
NARROWER BASIS ON WHICH TO REST THIS DECISION.  WHETHER OR NOT A CLASS
OF "OBSCENE" AND THUS ENTIRELY UNPROTECTED SPEECH DOES EXIST, I AM
FORCED TO CONCLUDE THAT THE CLASS IS INCAPABLE OF DEFINITION WITH
SUFFICIENT CLARITY TO WITHSTAND ATTACK ON VAGUENESS GROUNDS. 
ACCORDINGLY, IT IS ON PRINCIPLES OF THE VOID-FOR-VAGUENESS DOCTRINE
THAT THIS OPINION EXCLUSIVELY RELIES. 

/10/  IN THIS REGARD, THE PROBLEMS OF VAGUENESS AND OVERBREADTH ARE,
PLAINLY, CLOSELY INTERTWINED.  SEE NAACP V. BUTTON, 371 U.S. 415, 432 -
433 (1963); NOTE, THE FIRST AMENDMENT OVERBREADTH DOCTRINE, 83 HARV. L.
REV. 844, 845 (1970).  CF. INFRA, AT 93 - 94. 

/11/  SEE ALSO SPEISER V. RANDALL, 357 U.S. 513 (1958); CF.
BARENBLATT V. UNITED STATES, 360 U.S. 109, 137 - 138 (1959) (BLACK, J.,
DISSENTING):  "THIS COURT . . . HAS EMPHASIZED THAT THE 'VICE OF
VAGUENESS' IS ESPECIALLY PERNICIOUS WHERE LEGISLATIVE POWER OVER AN
AREA INVOLVING SPEECH, PRESS, PETITION AND ASSEMBLY IS INVOLVED.  . . .
FOR A STATUTE BROAD ENOUGH TO SUPPORT INFRINGEMENT OF SPEECH, WRITINGS,
THOUGHTS AND PUBLIC ASSEMBLIES, AGAINST THE UNEQUIVOCAL COMMAND OF THE
FIRST AMENDMENT NECESSARILY LEAVES ALL PERSONS TO GUESS JUST WHAT THE
LAW REALLY MEANS TO COVER, AND FEAR OF A WRONG GUESS INEVITABLY LEADS
PEOPLE TO FOREGO THE VERY RIGHTS THE CONSTITUTION SOUGHT TO PROTECT
ABOVE ALL OTHERS.  VAGUENESS BECOMES EVEN MORE INTOLERABLE IN THIS AREA
IF ONE ACCEPTS, AS THE COURT TODAY DOES, A BALANCING TEST TO DECIDE IF
FIRST AMENDMENT RIGHTS SHALL BE PROTECTED.  IT IS DIFFICULT AT BEST TO
MAKE A MAN GUESS--AT THE PENALTY OF IMPRISONMENT--WHETHER A COURT WILL
CONSIDER THE STATE'S NEED FOR CERTAIN INFORMATION SUPERIOR TO SOCIETY'S
INTEREST IN UNFETTERED FREEDOM.  IT IS UNCONSCIONABLE TO MAKE HIM
CHOOSE BETWEEN THE RIGHT TO KEEP SILENT AND THE NEED TO SPEAK WHEN THE
STATUTE SUPPOSEDLY ESTABLISHING THE STATE'S INTEREST IS TOO VAGUE TO
GIVE HIM GUIDANCE."  (CITATIONS OMITTED.) 

/12/  NOTE, THE FIRST AMENDMENT OVERBREADTH DOCTRINE, 83 HARV. L.
REV. 844, 885 - 886 AND N. 158 (1970) ("THUS IN THE AREA OF OBSCENITY
THE OVERBREADTH DOCTRINE OPERATES INTERSTITIALLY, WHEN NO LINE OF
PRIVILEGE IS APPOSITE OR YET TO BE FOUND, TO CONTROL THE IMPACT OF
SCHEMES DESIGNED TO CURB DISTRIBUTION OF UNPROTECTED MATERIAL"). 

/13/  WHILE THE COURT'S MODIFICATION OF THE MEMOIRS TEST IS SMALL,
IT SHOULD STILL PROVE SUFFICIENT TO INVALIDATE VIRTUALLY EVERY STATE
LAW RELATING TO THE SUPPRESSION OF OBSCENITY.  FOR, UNDER THE COURT'S
RESTATEMENT, A STATUTE MUST SPECIFICALLY ENUMERATE CERTAIN FORMS OF
SEXUAL CONDUCT, THE DEPICTION OF WHICH IS TO BE PROHIBITED.  IT SEEMS
HIGHLY DOUBTFUL TO ME THAT STATE COURTS WILL BEABLE TO CONSTRUE STATE
STATUTES SO AS TO INCORPORATE A CAREFULLY ITEMIZED LIST OF VARIOUS
FORMS OF SEXUAL CONDUCT, AND THUS TO BRING THEM INTO CONFORMITY WITH
THE COURT'S REQUIREMENTS.  CF. BLOUNT V. RIZZI, 400 U.S. 410, 419
(1971).  THE STATUTES OF AT LEAST ONE STATE SHOULD, HOWEVER, ESCAPE THE
WHOLESALE INVALIDATION.  OREGON HAS RECENTLY REVISED ITS STATUTE TO
PROHIBIT ONLY THE DISTRIBUTION OF OBSCENE MATERIALS TO JUVENILES OR
UNCONSENTING ADULTS.  THE ENACTMENT OF THIS PRINCIPLE IS, OF COURSE, A
CHOICE CONSTITUTIONALLY OPEN TO EVERY STATE, EVEN UNDER THE COURT'S
DECISION.  SEE OREGON LAWS 1971, C. 743, ART. 29, ^^ 255 - 262. 

/14/  "ALL IDEAS HAVING EVEN THE SLIGHEST REDEEMING SOCIAL
IMPORTANCE--UNORTHODOX IDEAS, CONTROVERSIAL IDEAS, EVEN IDEAS HATEFUL
TO THE PREVAILING CLIMATE OF OPINION--HAVE THE FULL PROTECTION OF THE
GUARANTIES, UNLESS EXCLUDABLE BECAUSE THEY ENCROACH UPON THE LIMITED
AREA OF MORE IMPORTANT INTERESTS.  BUT IMPLICIT IN THE HISTORY OF THE
FIRST AMENDMENT IS THE REJECTION OF OBSCENITY AS UTTELY WITHOUT
REDEEMING SOCIAL IMPORTANCE."  ROTH V. UNITED STATES, SUPRA, AT 484. 
/15/  MILLER V. CALIFORNIA, ANTE, AT 22. 

/16/  HUFFMAN V. UNITED STATES, 152 U.S. APP. D. C. 238, 470 F.2D
386 (1971).  THE TEST APPARENTLY REQUIRES AN EFFORT TO DISTINGUISH
BETWEEN "SINGLES" AND "DUALS" BETWEEN "ERECT PENISES" AND "SEMI-ERECT
PENISES," AND BETWEEN "ONGOING SEXUAL ACTIVITY" AND "IMMINENT SEXUAL
ACTIVITY."     /17/  NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN THE
SUPREME COURT 109 U. PA. L. REV. 67, 81 (1960). 

/18/  COMPARE GINSBERG V. NEW YORK, 390 U.S. 629, 672 (1968)
(FORTAS, J., DISSENTING), JACOBELLIS V. OHIO, 378 U.S. 184, 187 - 190
(1964) (BRENNAN, J., JOINED BY GOLDBERG, J.), MANUAL ENTERPRISES V.
DAY, 370 U.S., AT 488 (HARLAN, J., JOINED BY STEWART, J.), AND KINGSLEY
PICTURES CORP. V. REGENTS, 360 U.S. 684, 696 - 697 (1959) (FRANKFURTER,
J., CONCURRING), ID., AT 708 (HARLAN, J., JOINED BY FRANKFURTER, J.,
AND WHITTAKER, J., CONCURRING), WITH JACOBELLIS V. OHIO, SUPRA, AT 202
203 (WARREN, C. J., JOINED BY CLARK, J., DISSENTING), ROTH V. UNITED
STATES, 354 U.S., AT 492 N. 30, AND KINGSLEY BOOKS, INC. V. BROWN, 354
U.S. 436, 448 (1957) (BRENNAN, J., DISSENTING).  SEE ALSO WALKER V.
OHIO, 398 U.S. 434 (1970) (BURGER, C. J., DISSENTING). 

/19/  MR. JUSTICE HARLAN, IT BEARS NOTING, CONSIDERED THIS
REQUIREMENT CRITICAL FOR REVIEW OF NOT ONLY FEDERAL BUT STATE
CONVICTIONS, DESPITE HIS VIEW THAT THE STATES WERE ACCORDED MORE
LATITUDE THAN THE FEDERAL GOVERNMENT IN DEFINING OBSCENITY.  SEE, E.
G., ROTH SUPRA, AT 502 - 503 (SEPARATE OPINION). 

/20/  SEE GENERALLY CULLOMBE V. CONNECTICUT, 367 U.S. 568, 603 - 606
(1961) (OPINION OF FRANKFURTER, J.); CF. CROWELL V. BENSON, 285 U.S.
22, 54 - 65 (1932); NG FUNG HO V. WHITE, 259 U.S. 276, 284 - 285
(1922). 

/21/  SEE N. 9, SUPRA. 

/22/  CF. UNITED STATES V. O'BRIEN, 391 U.S. 367, 376 - 377 (1968):
"THIS COURT HAS HELD THAT WHEN 'SPEECH' AND 'NONSPEECH' ELEMENTS ARE
COMBINED IN THE SAME COURSE OF CONDUCT, A SUFFICIENTLY IMPORTANT
GOVERNMENTAL INTEREST IN REGULATING THE NONSPEECH ELEMENT CAN JUSTIFY
INCIDENTAL LIMITATIONS ON FIRST AMENDMENT FREEDOMS.  TO CHARACTERIZE
THE QUALITY OF THE GOVERNMENTAL INTEREST WHICH MUST APPEAR, THE COURT
HAS EMPLOYED A VARIETY OF DESCRIPTIVE TERMS:  COMPELLING; SUBSTANTIAL;
SUBORDINATING; PARAMOUNT; COGENT; STRONG.  WHATEVER IMPRECISION INHERES
IN THESE TERMS, WE THINK IT CLEAR THAT A GOVERNMENT REGULATION IS
SUFFICIENTLY JUSTIFIED IF IT IS WITHIN THE CONSTITUTIONAL POWER OF THE
GOVERNMENT; IF IT FURTHERS AN IMPORTANT OR SUBSTANTIAL GOVERNMENTAL
INTEREST; IF THE GOVERNMENTAL INTEREST IS UNRELATED TO THE SUPPRESSION
OF FREE EXPRESSION; AND IF THE INCIDENTAL RESTRICTION ON ALLEGED FIRST
AMENDMENT FREEDOMS IS NO GREATER THAN IS ESSENTIAL TO THE FURTHERANCE
OF THAT INTEREST."  (FOOTNOTES OMITTED.)  SEE ALSO SPEISER V. RANDALL,
357 U.S. 513 (1958). 

/23/  SEE ALSO RABE V. WASHINGTON, 405 U.S. 313, 317 (1972)
(CONCURRING OPINION); UNITED STATES V. REIDEL, 402 U.S. 351, 360 - 362
(1971) (SEPARATE OPINION); GINSBERG V. NEW YORK, 390 U.S. 629 (1968);
ID., AT 674 - 675 (DISSENTING OPINION); REDMOND V. UNITED STATES, 384
U.S. 264, 265 (1966); GINZBURG V. UNITED STATES, 383 U.S. 463 (1966);
ID., AT 498 N. 1 (DISSENTING OPINION); MEMOIRS V. MASSACHUSETTS, 383
U.S. 413, 421 N. 8 (1966); JACOBELLIS V. OHIO, 378 U.S., AT 195 (1964)
(OPINION OF BRENNAN, J., JOINED BY GOLDBERG, J.); ID., AT 201
(DISSENTING OPINION).  SEE ALSO REPORT OF THE COMMISSION ON OBSCENITY
AND PORNOGRAPHY 300 - 301 (1970) (FOCUS OF EARLY OBSCENITY LAWS ON
PROTECTION OF YOUTH). 

/24/ T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 496 (1970). 

/25/  SEE IBID. 

/26/  INDEED, SINCE STANLEY WAS DECIDED, THE PRESIDENT'S COMMISSION
ON OBSCENITY AND PORNOGRAPHY HAS CONCLUDED: 

"IN SUM, EMPIRICAL RESEARCH DESIGNED TO CLARIFY THE QUESTION HAS
FOUND NO EVIDENCE TO DATE THAT EXPOSURE TO EXPLICIT SEXUAL MATERIALS
PLAYS A SIGNIFICANT ROLE IN THE CAUSATION OF DELINQUENT OR CRIMINAL
BEHAVIOR AMONG YOUTH OR ADULTS.  THE COMMISSION CANNOT CONCLUDE THAT
EXPOSURE TO EROTIC MATERIALS IS A FACTOR IN THE CAUSATION OF SEX AND
CRIME OR SEX DELINQUENCY."  REPORT OF THE COMMISSION ON OBSCENITY AND
PORNOGRAPHY 27 (1970) (FOOTNOTE OMITTED).  TO THE CONTRARY, THE
COMMISSION FOUND THAT "(ON THE POSITIVE SIDE, EXPLICIT SEXUAL MATERIALS
ARE SOUGHT AS A SOURCE OF ENTERTAINMENT AND INFORMATION BY SUBSTANTIAL
NUMBERS OF AMERICAN ADULTS.  AT TIMES, THESE MATERIALS ALSO APPEAR TO
SERVE TO INCREASE AND FACILITATE CONSTRUCTIVE COMMUNICATION ABOUT
SEXUAL MATTERS WITHIN MARRIAGE."  ID., AT 53. 

/27/  SEE HENKIN, MORALS AND THE CONSTITUTION:  THE SIN OF
OBSCENITY, 63 COL. L. REV. 391, 395 (1963). 

/28/  "(IN OUR SYSTEM, UNDIFFERENTIATED FEAR OR APPREHENSION OF
DISTURBANCE IS NOT ENOUGH TO OVERCOME THE RIGHT TO FREEDOM OF
EXPRESSION.  ANY DEPARTURE FROM ABSOLUTE REGIMENTATION MAY CAUSE
TROUBLE.  ANY VARIATION FROM THE MAJORITY'S OPINION MAY INSPIRE FEAR. 
ANY WORD SPOKEN, IN CLASS, IN THE LUNCHROOM, OR ON THE CAMPUS, THAT
DEVIATES FROM THE VIEWS OF ANOTHER PERSON MAY START AN ARGUMENT OR
CAUSE A DISTURBANCE.  BUT OUR CONSTITUTION SAYS WE MUST TAKE THIS RISK,
TERMINIELLO V. CHICAGO, 337 U.S. 1 (1949); AND OUR HISTORY SAYS THAT IT
IS THIS SORT OF HAZARDOUS FREEDOM--THIS KIND OF OPENNESS--THAT IS THE
BASIS OF OUR NATIONAL STRENGTH AND OF THE INDEPENDENCE AND VIGOR OF
AMERICANS WHO GROW UP AND LIVE IN THIS RELATIVELY PERMISSIVE, OFTEN
DISPUTATIOUS, SOCIETY."  TINKER V. DES MOINES SCHOOL DISTRICT, 393 U.S.
503, 508 - 509 (1969).  SEE ALSO COHEN V. CALIFORNIA, 403 U.S. 15, 23
(1971). 

/29/  THE COURT ERRONEOUSLY STATES, MILLER V. CALIFORNIA, ANTE, AT
27, THAT THE AUTHOR OF THIS OPINION "INDICATES THAT SUPPRESSION OF
UNPROTECTED OBSCENE MATERIAL IS PERMISSIBLE TO AVOID EXPOSURE TO
UNCONSENTING ADULTS . . . AND TO JUVENILES . . . ."  I DEFER EXPRESSION
OF MY VIEWS AS TO THE SCOPE OF STATE POWER IN THESE AREAS UNTIL CASES
SQUARELY PRESENTING THESE QUESTIONS ARE BEFORE THE COURT.  SEE N. 9,
SUPRA; MILLER V. CALIFORNIA, SUPRA (DISSENTING OPINION). 

ROBERT EUGENE SMITH ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEF WERE MEL S. FRIEDMAN AND D. FREEMAN HUTTON. 

THOMAS E. MORAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS JOEL M. FELDMAN. 

CHARLES H. KEATING, JR., PRO SE, RICHARD M. BERTSCH, JAMES J.
CLANCY, AND ALBERT S. JOHNSTON III FILED A BRIEF FOR CHARLES H.
KEATING, JR., AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :




















KAPLAN V. CALIFORNIA 413 U.S. 115 


       CERTIORARI TO THE APPELLATE DEPARTMENT, SUPERIOR COURT OF

           CALIFORNIA, COUNTY OF LOS ANGELES 

  NO. 71 - 1422.  ARGUED OCTOBER 19, 1972--DECIDED JUNE 21, 1973;

  23 CAL. APP. 3D SUPP. 9, 100 CAL. RPTR.  372, VACATED AND

  REMANDED. 


    PETITIONER, A PROPRIETOR OF AN "ADULT" BOOKSTORE, WAS CONVICTED

  OF VIOLATING A CALIFORNIA OBSCENITY STATUTE BY SELLING A

  PLAIN-COVERED UNILLUSTRATED BOOK CONTAINING REPETITIVELY

  DESCRIPTIVE MATERIAL OF AN EXPLICITLY SEXUAL NATURE.  BOTH SIDES

  OFFERED TESTIMONY AS TO THE NATURE AND CONTENT OF THE BOOK, BUT

  THERE WAS NO "EXPERT" TESTIMONY THAT THE BOOK WAS "UTTERLY

  WITHOUT REDEEMING SOCIAL IMPORTANCE."  THE TRIAL COURT USED A

  STATE COMMUNITY STANDARD IN APPLYING AND CONSTRUING THE STATUTE. 

  THE APPELLATE COURT, AFFIRMING, HELD THAT THE BOOK WAS NOT

  PROTECTED BY THE FIRST AMENDMENT.  HELD: 

     1.  OBSCENE MATERIAL IN BOOK FORM IS NOT ENTITLED TO FIRST

  AMENDMENT PROTECTION MERELY BECAUSE IT HAS NO PICTORIAL CONTENT. 

  A STATE MAY CONTROL COMMERCE IN SUCH A BOOK, EVEN DISTRIBUTION TO

  CONSENTING ADULTS, TO AVOID THE DELETERIOUS CONSEQUENCES IT CAN

  REASONABLY CONCLUDE (CONCLUSIVE PROOF IS NOT REQUIRED) RESULT

  FROM THE CONTINUING CIRCULATION OF OBSCENE LITERATURE.  SEE PARIS

  ADULT THEATRE I V. SLATON, ANTE, P. 49.  PP. 118 - 120. 

     2.  APPRAISAL OF THE NATURE OF THE BOOK BY "THE CONTEMPORARY

  COMMUNITY STANDARDS OF THE STATE OF CALIFORNIA" WAS AN ADEQUATE

  BASIS FOR ESTABLISHING WHETHER THE BOOK HERE INVOLVED WAS

  OBSCENE.  SEE MILLER V. CALIFORNIA, ANTE, P. 15.  P. 121. 

     3.  WHEN, AS IN THIS CASE, MATERIAL IS ITSELF PLACED IN

  EVIDENCE, "EXPERT" STATE TESTIMONY AS TO ITS ALLEGEDLY OBSCENE

NATURE, OR OTHER ANCILLARY EVIDENCE OF OBSCENITY, IS NOT

CONSTITUTIONALLY REQUIRED.  PARIS ADULT THEATRE I V. SLATON,

  SUPRA.  P. 121. 

     4.  THE CASE IS VACATED AND REMANDED SO THAT THE STATE

  APPELLATE COURT CAN DETERMINE WHETHER THE STATE OBSCENITY STATUTE

  SATISFIES THE CONSTITUTIONAL STANDARDS NEWLY ENUNCIATED IN

  MILLER, SUPRA.  P. 122. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., WOULD
VACATE AND REMAND FOR DISMISSAL OF THE CRIMINAL COMPLAINT, POST, P.
122.  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH STEWART AND
MARSHALL, JJ., JOINED, POST, P. 122. 

MR. CHIEF JUSTICE BURGER DELIVER THE OPINION OF THE COURT. 

[[HC116'(ORIGINAL DOCUMENT PAGE 116)' 

WE GRANTED CERTIORARI TO THE APPELLATE DEPARTMENT OF THE SUPERIOR
COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGEELES TO REVIEW THE
PETITIONER'S CONVICTION FOR VIOLATION OF CALIFORNIA STATUTES REGARDING
OBSCENITY. 

PETITIONER WAS THE PROPRIETOR OF THE PEEK-A-BOO BOOKSTORE, ONE OF
THE APPROXIMATELY 250 "ADULT" BOOKSTORES IN THE CITY OF LOS ANGELES,
CALIFORNIA.  /1/  ON MAY 14, 1969, IN RESPONSE TO CITIZEN COMPLAINTS,
AN UNDERCOVER POLICE OFFICER ENTERED THE STORE AND BEGAN TO PERUSE
SEVERAL BOOKS AND MAGAZINES.  PETITIONER ADVISED THE OFFICER THAT THE
STORE "WAS NOT A LIBRARY."  THE OFFICER THEN ASKED PETITIONER IF HE HAD
"ANY GOOD SEXY BOOKS."  PETITIONER REPLIED THAT "ALL OF OUR BOOKS ARE
SEXY" AND EXHIBITED A LEWD PHOTOGRAPH.  AT PETITIONER'S RECOMMENDATION,
AND AFTER PETITIONER HAD READ ALOUD A SAMPLE PARAGRAPH, THE OFFICER
PURCHASED THE BOOK SUITE 69.  ON THE BASIS OF THIS SALE, PETITIONER WAS
CONVICTED BY A JURY OF VIOLATING CALIFORNIA PENAL CODE ^ 311.2, /2/  A
MISDEAMEANOR. 

THE BOOK, SUITE 69, HAS A PLAIN COVER AND CONTAINS NO PICTURES.  IT
IS MADE UP ENTIRELY OF REPETITIVE DESCRIPTIONS OF PHYSICAL, SEXUAL
CONDUCT, "CLINICALLY" EXPLICIT AND OFFENSIVE TO THE POINT OF BEING
NAUSEOUS; THERE IS ONLY THE MOST TENUOUS "PLOT." 

[[HC117'(ORIGINAL DOCUMENT PAGE 117)'  ALMOST EVERY CONCEIVABLE
VARIETY OF SEXUAL CONTACT, HOMOSEXUAL AND HETEROSEXUAL, IS DESCRIBED. 
WHETHER ONE SAMPLES EVERY 5TH, 10TH, OR 20TH PAGE, BEGINNING AT ANY
POINT OR PAGE AT RANDOM, THE CONTENT IS UNVARYING. 

AT TRIAL BOTH SIDES PRESENTED TESTIMONY, BY PERSONS ACCEPTED TO BE
"EXPERTS", AS TO THE CONTENT AND NATURE OF THE BOOK.  THE BOOK ITSELF
WAS RECEIVED IN EVIDENCE, AND READ, IN ITS ENTIRETY, TO THE JURY.  EACH
JUROR INSPECTED THE BOOK.  BUT THE STATE OFFERED NO "EXPERT" EVIDENCE
THAT THE BOOK WAS "UTTERLY WITHOUT SOCIALLY REDEEMING VALUE," OR ANY
EVIDENCE OF "NATIONAL STANDARDS." 

ON APPEAL, THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA FOR THE COUNTY OF LOS ANGELES AFFIRMED PETITIONER'S
CONVICTION. 

[[HC118'(ORIGINAL DOCUMENT PAGE 118)'  RELYING ON THE DISSENTING
OPINIONS IN JACOBELLIS V. OHIO, 378 U.S. 184, 199, 203 (1964), AND MR.
JUSTICE WHITE'S DISSENT IN MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 462
(1966), IT CONCLUDED THAT EVIDENCE OF A "NATIONAL" STANDARD OF
OBSCENITY WAS NOT REQUIRED.  IT ALSO DECIDED THAT THE STATE DID NOT
ALWAYS HAVE TO PRESENT "EXPERT"  EVIDENCE THAT THE BOOK LACKED
"SOCIALLY REDEEMING VALUE," AND THAT "(IN LIGHT . . . OF THE
CIRCUMSTANCES SURROUNDING THE SALE" AND THE NATURE OF THE BOOK ITSELF,
THERE WAS SUFFICIENT EVIDENCE TO SUSTAIN PETITIONERS CONVICTION. 
FINALLY, THE STATE COURT CONSIDERED PETITIONER'S ARGUMENT THAT THE BOOK
WAS NOT "OBSCENE" AS A MATTER OF CONSTITUTIONAL LAW.  POINTING OUT THAT
PETITIONER WAS ARGUING, IN PART, THAT ALL BOOKS WERE CONSTITUTIONALLY
PROTECTED IN AN ABSOLUTE SENSE, IT REJECTED THAT THESIS.  ON
"INDEPENDENT REVIEW," IT CONCLUDED "SUITE 69 APPEALS TO A PRURIENT
INTEREST IN SEX AND IS BEYOND THE CUSTOMARY LIMITS OF CANDOR WITHIN THE
STATE OF CALIFORNIA."  IT HELD THAT THE BOOK WAS NOT PROTECTED BY THE
FIRST AMENDMENT.  WE AGREE. 

THIS CASE SQUARLY PRESENTS THE ISSUE OF WHETHER EXPRESSION BY WORDS
ALONE CAN BE LEGALLY "OBSCENE" IN THE SENSE OF BEING UNPROTECTED BY THE
FIRST AMENDMENT.  /3/  WHEN THE COURT DECLARED THAT OBSCENITY IS NOT A
FORM OF EXPRESSION PROTECTED BY THE FIRST AMENDMENT, NO DISTINCTION WAS
MADE AS TO THE MEDIUM OF THE EXPRESSION. 

[[HC119'(ORIGINAL DOCUMENT PAGE 119)'  SEE ROTH V. UNITED STATES,
354 U.S. 476, 481 - 485 (1957).  OBSCENITY CAN, OF COURSE, MANIFEST
ITSELF IN CONDUCT, IN THE PICTORIAL REPRESENTATION OF CONDUCT, OR IN
THE WRITTEN AND ORAL DESCRIPTION OF CONDUCT.  THE COURT HAS APPLIED
SIMILARLY CONCEIVED FIRST AMENDMENT STANDARDS TO MOVING PICTURES, TO
PHOTOGRAPHS, AND TO WORDS IN BOOKS.  SEE FREEDMAN V. MARYLAND, 380 U.S.
51, 57 (1965); JACOBELLIS V. OHIO, SUPRA, AT 187 - 188; TIMES FILM
CORP. V. CHICAGO, 365 U.S. 43, 46 (1961); ID., AT 51 (WARREN, C. J.,
DISSENTING); KINGSLEY PICTURES CORP. V. REGENTS, 360 U.S. 684, 689 -
690 (1959); SUPERIOR FILMS, INC. V. DEPT. OF EDUCATION, 346 U.S. 587,
589 (1954) (DOUGLAS, J., CONCURRING); JOSEPH BURSTYN, INC. V. WILSON,
343 U.S. 495, 503 (1952). 

BECAUSE OF A PROFOUND COMMITMENT TO PROTECTING COMMUNICATION OF
IDEAS, ANY RESTRAINT ON EXPRESSION BY WAY OF THE PRINTED WORD OR IN
SPEECH STIMULATES A TRADITIONAL AND EMOTIONAL RESPONSE, UNLIKE THE
RESPONSE TO OBSCENE PICTURES OF FLAGRANT HUMAN CONDUCT.  A BOOK SEEMS
TO HAVE A DIFFERENT AND PREFERRED PLACE IN OUR HIERARCHY OF VALUES, AND
SO IT SHOULD BE.  BUT THIS GENERALIZATION, LIKE SO MANY, IS QUALIFIED
BY THE BOOK'S CONTENT.  AS WITH PICTURES, FILMS, PAINTINGS, DRAWINGS,
AND ENGRAVINGS, BOTH ORAL UTTERANCE AND THE PRINTED WORD HAVE FIRST
AMENDMENT PROTECTION UNTIL THEY COLLIDE WITH THE LONG-SETTLED POSITION
OF THIS COURT THAT OBSCENITY IS NOT PROTECTED BY THE CONSTITUTION. 

[[HC120'(ORIGINAL DOCUMENT PAGE 120)'  MILLER V. CALIFORNIA, ANTE,
AT 23 - 25; ROTH V. UNITED STATES, SUPRA, AT 483 - 485. 

FOR GOOD OR ILL, A BOOK HAS A CONTINUING LIFE.  IT IS PASSED HAND TO
HAND, AND WE CAN TAKE NOTE OF THE TENDENCY OF WIDELY CIRCULATED BOOKS
OF THIS CATEGORY TO REACH THE IMPRESSIONABLE YOUNG AND HAVE A
CONTINUING IMPACT.  /4/  A STATE COULD REASONABLY REGARD THE "HARD
CORE" CONDUCT DESCRIBED BY SUITE 69 AS CAPABLE OF ENCOURAGING OR
CAUSING ANTISOCIAL BEHAVIOR, ESPECIALLY IN ITS IMPACT ON YOUNG PEOPLE. 
STATES NEED NOT WAIT UNTIL BEHAVIORAL EXPERTS OR EDUCATORS CAN PROVIDE
EMPIRICAL DATA BEFORE ENACTING CONTROLS OF COMMERCE IN OBSCENE
MATERIALS UNPROTECTED BY THE FIRST AMENDMENT OR BY A CONSTITUTIONAL
RIGHT TO PRIVACY.  WE HAVE NOTED THE POWER OF A LEGISLATIVE BODY TO
ENACT SUCH REGULATORY LAWS ON THE BASIS OF UNPROVABLE ASSUMPTION.  SEE
PARIS ADULT THEATRE I V. SLATON, ANTE, AT 60 - 63. 

PRIOR TO TRIAL, PETITIONER MOVED TO DISMISS THE COMPLAINT ON THE
BASIS THAT SALE OF SEXUALLY ORIENTED MATERIAL TO CONSENTING ADULTS IS
CONSTITUTIONALLY PROTECTED.  IN CONNECTION WITH THIS MOTION ONLY, THE
PROSECUTION STIPULATED THAT IT DID NOT CLAIM THAT PETITIONER EITHER
DISSEMINATED ANY MATERIAL TO MINORS OR THRUST IT UPON THE GENERAL
PUBLIC.  THE TRIAL COURT DENIED THE MOTION.  TODAY, THIS COURT, IN
PARIS ADULT THEATRE I V. SLATON, ANTE, AT 68 - 69, REAFFIRMS THAT
COMMERCIAL EXPOSURE AND SALE OF OBSCENE MATERIALS TO ANYONE, INCLUDING
CONSENTING ADULTS, IS SUBJECT, TO STATE REGULATION.  SEE ALSO UNITED
STATES V. ORITO, POST, AT 141 - 144; UNITED STATES V. 12 200-FT. REELS
OF FILM, POST, AT 128; UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402
U.S. 363, 376 (1971) (OPINION OF WHITE, J.); UNITED STATES V. REIDEL,
402 U.S. 351, 355 - 356 (1971). 

[[HC121'(ORIGINAL DOCUMENT PAGE 121)'  THE DENIAL OF PETITIONER'S
MOTION WAS, THEREFORE, NOT ERROR. 

AT TRIAL THE PROSECUTION TENDERED THE BOOK ITSELF INTO EVIDENCE AND
ALSO TENDERED, AS AN EXPERT WITNESS, A POLICE OFFICER IN THE VICE
SQUAD.  THE OFFICER TESTIFIED TO EXTENSIVE EXPERIENCE WITH PORNOGRAPHIC
MATERIALS AND GAVE HIS OPINION THAT SUITE 69, TAKEN AS A WHOLE,
PREDOMINANTLY APPEALED TO THE PRURIENT INTEREST OF THE AVERAGE PERSON
IN THE STATE OF CALIFORNIA, "APPLYING CONTEMPORARY STANDARDS," AND THAT
THE BOOK WENT "SUBSTANTIALLY BEYOND THE CUSTOMARY LIMITS OF CANDOR" IN
THE STATE OF CALIFORNIA.  THE WITNESS EXPLAINED SPECIFICALLY HOW THE
BOOK DID SO, THAT IT WAS A PURVEYOR OF PERVERTED SEX FOR ITS OWN SAKE. 
NO "EXPERT" STATE TESTIMONY WAS OFFERED THAT THE BOOK WAS OBSCENE UNDER
"NATIONAL STANDARDS," OR THAT THE BOOK WAS "UTTERLY WITHOUT REDEEMING
SOCIAL IMPORTANCE," DESPITE "EXPERT" DEFENSE TESTIMONY TO THE
CONTRARY. 

IN MILLER V. CALIFORNIA, ANTE, P. 15, THE COURT TODAY HOLDS THAT THE
"'CONTEMPORARY COMMUNITY STANDARDS OF THE STATE OF CALIFORNIA,'"  AS
OPPOSED TO "NATIONAL STANDARDS," ARE CONSTITUTIONALLY ADEQUATE TO
ESTABLISH WHETHER A WORK IS OBSCENE.  WE ALSO REJECT IN PARIS ADULT
THEATRE I V. SLATON, ANTE, P. 49, ANY CONSTITUTIONAL NEED FOR "EXPERT"
TESTIMONY ON BEHALF OF THE PROSECUTION, OR FOR ANY OTHER ANCILLARY
EVIDENCE OF OBSCENITY, ONCE THE ALLEGEDLY OBSCENE MATERIAL ITSELF IS
PLACED IN EVIDENCE.  PARIS ADULT THEATRE I, ANTE, AT 56.  THE DEFENSE
SHOULD BE FREE TO INTRODUCE APPROPRIATE EXPERT TESTIMONY, SEE SMITH V.
CALIFORNIA, 361 U.S. 147, 164 - 165 (1959) (FRANKFURTER, J.,
CONCURRING), BUT IN "THE CASES IN WHICH THIS COURT HAS DECIDED
OBSCENITY QUESTIONS SINCE ROTH, IT HAS REGARDED THE MATERIALS AS
SUFFICIENT IN THEMSELVES FOR THE DETERMINATION OF THE QUESTION." 
GINZBURG V. UNITED STATES, 383 U.S. 463, 465 (1966).  SEE UNITED STATES
V. GRONER, 479 F.2D 577, 579 - 586 (CA5 1973). 

[[HC122'(ORIGINAL DOCUMENT PAGE 122)'  ON THE RECORD IN THIS CASE, THE
PROSECUTION'S EVIDENCE WAS SUFFICIENT, AS A MATTER OF FEDERAL
CONSTITUTIONAL LAW, TO SUPPORT PETITIONER'S CONVICTION.  /5/ 

BOTH MILLER V. CALIFORNIA, SUPRA, AND THIS CASE INVOLVE CALIFORNIA
OBSCENITY STATUTES.  THE JUDGMENT OF THE APPELLATE DEPARTMENT OF THE
SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES IS VACATED,
AND THE CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION, MILLER V. CALIFORNIA, SUPRA, AND PARIS
ADULT THEATRE I V. SLATON, SUPRA.  SEE UNITED STATES V. 12 200-FT.
REELS OF FILM, POST, AT 130 N. 7, DECIDED TODAY. 

              VACATED AND REMANDED. 

/1/  THE NUMBER OF THESE STORES WAS SO ESTIMATED BY BOTH PARTIES AT
ORAL ARGUMENT.  THESE STORES PURPORT TO BAR MINORS FROM THE PREMISES. 
IN THIS CASE THERE IS NO EVIDENCE THAT PETITIONER SOLD MATERIALS TO
JUVENILES.  CF. MILLER V. CALIFORNIA, ANTE, AT 18 - 20. 

/2/  THE CALIFORNIA PENAL CODE ^ 311.2, AT THE TIME OF THE
COMMISSION OF THE ALLEGED OFFENSE, READ IN RELEVANT PART: 

"(A) EVERY PERSON WHO KNOWINGLY:  SENDS OR CAUSES TO BE SENT, OR
BRINGS OR CAUSES TO BE BROUGHT, INTO THIS STATE FOR SALE OR
DISTRIBUTION, OR IN THIS STATE PREPARES, PUBLISHES, PRINTS, EXHIBITS,
DISTRIBUTES, OR OFFERS TO DISTRIBUTE, OR HAS IN HIS POSSESSION WITH
INTENT TO DISTRIBUTE OR TO EXHIBIT OR OFFER TO DISTRIBUTE, ANY OBSCENE
MATTER IS GUILTY OF A MISDEMEANOR.  . . ." 

CALIFORNIA PENAL CODE ^ 311, AT THE TIME OF THE COMMISSION OF THE
ALLEGED OFFENSE, PROVIDED AS FOLLOWS: 

"AS USED IN THIS CHAPTER: 

"(A) 'OBSCENE' MEANS THAT TO THE AVERAGE PERSON, APPLYING
CONTEMPORARY STANDARDS, THE PREDOMINANT APPEAL OF THE MATTER, TAKEN AS
A WHOLE, IS TO PRURIENT INTEREST, I. E., A SHAMEFUL OR MORBID INTEREST
IN NUDITY, SEX, OR EXCRETION, WHICH GOES SUBSTANTIALLY BEYOND CUSTOMARY
LIMITS OF CANDOR IN DESCRIPTION OR REPRESENTATION OF SUCH MATTERS AND
IS MATTER WHICH IS UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE. 

"(B) 'MATTER' MEANS ANY BOOK, MAGAZINE, NEWSPAPER, OR OTHER PRINTED
OR WRITTEN MATERIAL OR ANY PICTURE, DRAWING, PHOTOGRAPH, MOTION
PICTURE, OR OTHER PICTORIAL REPRESENTATION OR ANY STATUTE OR OTHER
FIGURE, OR ANY RECORDING, TRANSCRIPTION OR MECHANICAL, CHEMICAL OR
ELECTRICAL REPRODUCTION OR ANY OTHER ARTICLES, EQUIPMENT, MACHINES OR
MATERIALS. 

"(C) 'PERSON' MEANS ANY INDIVIDUAL, PARTNERSHIP, FIRM, ASSOCIATION,
CORPORATION, OR OTHER LEGAL ENTITY. 

"(D) 'DISTRIBUTE' MEANS TO TRANSFER POSSESSION OF, WHETHER WITH OR
WITHOUT CONSIDERATION. 

"(E) 'KNOWINGLY' MEANS HAVING KNOWLEDGE THAT THE MATTER IS OBSCENE." 

/3/  THIS COURT, SINCE ROTH V. UNITED STATES, 354 U.S. 476 (1957),
HAS ONLY ONCE HELD BOOKS TO BE OBSCENE.  THAT CASE WAS MISHKIN V. NEW
YORK, 383 U.S. 502 (1966), AND THE BOOKS INVOLVED WERE VERY SIMILAR IN
CONTENT TO SUITE 69.  BUT MOST OF THE MISHKIN BOOKS, IF NOT ALL, WERE
ILLUSTRATED.  SEE ID., AT 505, 514 - 515.  PRIOR TO ROTH, THIS COURT
AFFIRMED, BY AN EQUALLY DIVIDED COURT, A CONVICTION FOR SALE OF AN
UNILLUSTRATED BOOK.  DOUBELDAY & CO., INC. V. NEW YORK, 335 U.S. 848
(1948).  THIS COURT HAS ALWAYS RIGOROUSLY SCRUTINIZED JUDGMENTS
INVOLVING BOOKS FOR POSSIBLE VIOLATION OF FIRST AMENDMENT RIGHTS, AND
HAS REGULARLY REVERSED CONVICTIONS ON THAT BASIS.  SEE CHILDS V.
OREGON, 401 U.S. 1006 (1971); WALKER V. OHIO, 398 U.S. 434 (1970);
KENEY V. NEW YORK, 388 U.S. 440 (1967); FRIEDMAN V. NEW YORK, 388 U.S.
441 (1967); SHEPERD V. NEW YORK, 388 U.S. 444 (1967); AVANSINO V. NEW
YORK, 388 U.S. 446 (1967); CORINTH PUBLICATIONS, INC. V. WESBERRY, 388
U.S. 448 (1967); BOOKS, INC. V. UNITED STATES, 388 U.S. 449 (1967); A
QUANTITY OF BOOKS V. KANSAS, 388 U.S. 452 (1967); REDRUP V. NEW YORK,
386 U.S. 767 (1967); MEMOIRS V. MASSACHUSETTS, 383 U.S. 413 (1966);
TRALINS V. GERSTEIN, 378 U.S. 576 (1964); GROVE PRESS, INC. V.
GERSTEIN, 378 U.S. 577 (1964); A QUANTITY OF BOOKS V. KANSAS, 378 U.S.
205 (1964); MARCUS V. SEARCH WARRANT, 367 U.S. 717 (1961); SMITH V.
CALIFORNIA, 361 U.S. 147 (1959); KINGSLEY BOOKS, INC. V. BROWN, 354
U.S. 436 (1957). 

/4/  SEE PARIS ADULT THEATRE I V. SLATON, ANTE, AT 58 N. 7; REPORT
OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY 401 (1970) (HILL-LINK
MINORITY REPORT).     /5/  AS THE PROSECUTION'S INTRODUCTION OF THE
BOOK ITSELF INTO EVIDENCE WAS ADEQUATE, AS A MATTER OF FEDERAL
CONSTITUTIONAL LAW, TO ESTABLISH THE BOOK'S OBSCENITY, WE NEED NOT
CONSIDER PETITIONER'S CLAIM THAT EVIDENCE OF PANDERING WAS WRONGLY
CONSIDERED ON APPEAL TO SUPPORT THE JURY FINDING OF OBSCENITY. 
PETITIONER'S ADDITIONAL CLAIMS THAT HIS CONVICTION WAS AFFIRMED ON THE
BASIS OF A "THEORY" OF "PANDERING" NOT CONSIDERED AT TRIAL AND THAT HE
WAS SUBJECTED TO RETROACTIVE APPLICATION OF A STATE STATUTE ARE
MERITLESS ON THE RECORD. 

[[DOP 

MR. JUSTICE DOUGLAS WOULD VACATE AND REMAND FOR DISMISSAL OF THE
CRIMINAL COMPLAINT UNDER WHICH PETITIONER WAS FOUND GUILTY BECAUSE
"OBSCENITY" AS DEFINED BY THE CALIFORNIA COURTS AND BY THIS COURT IS
TOO VAGUE TO SATISFY THE REQUIREMENTS OF DUE PROCESS.  SEE MILLER V.
CALIFORNIA, ANTE, P. 37 (DOUGLAS, J., DISSENTING). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

I WOULD REVERSE THE JUDGMENT OF THE APPELLATE DEPARTMENT OF THE
SUPERIOR COURT OF CALIFORNIA AND REMAND THE CASE FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH MY DISSENTING OPINION IN PARIS ADULT
THEATRE I V. SLATON, ANTE, P. 73.  SEE MY DISSENT IN MILLER V.
CALIFORNIA, ANTE, P. 47. 

STANLEY FLEISHMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE DAVID M. BROWN AND SAM ROSENWEIN. 

WARD GLEN MCCONNELL ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE ROGER ARNEBERGH AND DAVID M. SCHACTER. 
..END :













UNITED STATES V. 12 200-FT. REELS OF FILM 413 U.S. 123 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL

           DISTRICT OF CALIFORNIA 

     NO. 70 - 2.  ARGUED JANUARY 19, 1972--REARGUED NOVEMBER 7,

1972--DECIDED JUNE 21, 1973; VACATED AND REMANDED. 


    CONGRESS, WHICH HAS BROAD POWERS UNDER THE COMMERCE CLAUSE TO

  PROHIBIT IMPORTATION INTO THIS COUNTRY OF CONTRABAND, MAY

  CONSTITUTIONALLY PROSCRIBE THE IMPORTATION OF OBSCENE MATTER,

  NOTWITHSTANDING THAT THE MATERIAL IS FOR THE IMPORTER'S PRIVATE,

  PERSONAL USE AND POSSESSION.  CF. UNITED STATES V. ORITO, POST,

  P. 139.  STANLEY V. GEORGIA, 394 U.S. 557, DISTINGUISHED.  THE

  DISTRICT COURT CONSEQUENTLY ERRED IN HOLDING 19 U.S.C. ^ 1305 (A)

  UNCONSTITUTIONAL.  THIS CASE IS REMANDED TO THE DISTRICT COURT

FOR RECONSIDERATION IN LIGHT OF THE FIRST AMENDMENT STANDARDS

  NEWLY ENUNCIATED BY THIS COURT IN MILLER V. CALIFORNIA, ANTE, P.

  15, WHICH EQUALLY APPLY TO FEDERAL LEGISLATION, AND THIS

  OPINION.  PP. 124 - 130. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 130.  BRENNAN, J., FILED A DISSENTING
OPINION, IN WHICH STEWART AND MARSHALL, JJ., JOINED, POST, P. 138. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

[[HC124'(ORIGINAL DOCUMENT PAGE 124)' 

WE NOTED PROBABLE JURISDICTION TO REVIEW A SUMMARY DECISION OF THE
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
HOLDING THAT ^ 305 (A) OF THE TARIFF ACT OF 1930, 46 STAT. 688, AS
AMENDED, 19 U.S.C. ^ 1305 (A) WAS "UNCONSTITUTIONAL ON ITS FACE" AND
DISMISSING A FORFEITURE ACTION BROUGHT UNDER THAT STATUTE.  /1/  THE
STATUTE PROVIDES IN PERTINENT PART: 

     "ALL PERSONS ARE PROHIBITED FROM IMPORTING INTO THE UNITED

  STATES FROM ANY FOREIGN COUNTRY . . . ANY OBSCENE BOOK, PAMPHLET,

  PAPER, WRITING, ADVERTISEMENT, CIRCULAR, PRINT, PICTURE, DRAWING,

  OR OTHER REPRESENTATION, FIGURE, OR IMAGE ON OR OF PAPER OR OTHER

  MATERIAL, OR ANY CAST, INSTRUMENT, OR OTHER ARTICLE WHICH IS

  OBSCENE OR IMMORAL . . . . NO SUCH ARTICLES WHETHER IMPORTED

  SEPARATELY OR CONTAINED IN PACKAGES WITH OTHER GOODS ENTITLED TO

  ENTRY, SHALL BE ADMITTED TO ENTRY; AND ALL SUCH ARTICLES AND,

  UNLESS IT APPEARS TO THE SATISFACTION OF THE APPROPRIATE CUSTOMS

  OFFICER THAT THE OBSCENE OR OTHER PROHIBITED ARTICLES CONTAINED

  IN THE PACKAGE WERE INCLOSED THEREIN WITHOUT THE KNOWLEDGE OR

  CONSENT OF THE IMPORTER, OWNER, AGENT, OR CONSIGNEE, THE ENTIRE

  CONTENTS OF THE PACKAGE IN WHICH SUCH ARTICLES ARE CONTAINED,

  SHALL BE SUBJECT TO SEIZURE AND FORFEITURE AS HEREINAFTER

  PROVIDED . . . . PROVIDED FURTHER, THAT THE SECRETARY OF THE

  TREASURY MAY, IN HIS DISCRETION, ADMIT THE SO-CALLED CLASSICS OR

  BOOKS OF RECOGNIZED AND ESTABLISHED LITERARY OR SCIENTIFIC MERIT,

  BUT MAY, IN HIS DISCRETION, ADMIT SUCH CLASSICS OR BOOKS ONLY

  WHEN IMPORTED FOR NONCOMMERCIAL PURPOSES." 

[[HC125'(ORIGINAL DOCUMENT PAGE 125)' 

ON APRIL 2, 1970, THE CLAIMANT PALADINI SOUGHT TO CARRY MOVIE FILMS,
COLOR SLIDES, PHOTOGRAPHS AND OTHER PRINTED AND GRAPHIC MATERIAL INTO
THE UNITED STATES FROM MEXICO.  THE MATERIALS WERE SEIZED AS BEING
OBSCENE BY CUSTOMS OFFICERS AT A PORT OF ENTRY, LOS ANGELES AIRPORT,
AND MADE THE SUBJECT OF A FORFEITURE ACTION UNDER 19 U.S.C. ^ 1305
(A).  THE DISTRICT COURT DISMISSED THE GOVERNMENT'S COMPLAINT, RELYING
ON THE DECISION OF A THREE-JUDGE DISTRICT COURT IN UNITED STATES V.
THIRTY-SEVEN PHOTOGRAPHS, 309 F.SUPP.  36 (CD CAL. 1970), WHICH WE
LATER REVERSED, 402 U.S. 363 (1971).  THAT CASE CONCERNED PHOTOGRAPHS
CONCEDEDLY IMPORTED FOR COMMERCIAL PURPOSES.  THE NARROW ISSUE DIRECTLY
PRESENTED IN THIS CASE, AND NOT IN THIRTY-SEVEN PHOTOGRAPHS, IS WHETHER
THE UNITED STATES MAY CONSTITUTIONALLY PROHIBIT IMPORTATION OF OBSCENE
MATERIAL WHICH THE IMPORTER CLAIMS IS FOR PRIVATE, PERSONAL USE AND
POSSESSION ONLY.  /2/ 

IMPORT RESTRICTIONS AND SEARCHES OF PERSONS OR PACKAGES AT THE
NATIONAL BORDERS REST ON DIFFERENT CONSIDERATIONS AND DIFFERENT RULES
OF CONSTITUTIONAL LAW FROM DOMESTIC REGULATIONS.  THE CONSTITUTION
GIVES CONGRESS BROAD, COMPREHENSIVE POWERS "(TO REGULATE COMMERCE WITH
FOREIGN NATIONS."  ART. 1, ^ 8, CL. 3.  HISTORICALLY SUCH BROAD POWERS
HAVE BEEN NECESSARY TO PREVENT SMUGGLING AND TO PREVENT PROHIBITED
ARTICLES FROM ENTRY.  SEE UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS,
402 U.S., AT 376 - 377 (OPINION OF WHITE, J.); CARROLL V. UNITED
STATES, 267 U.S. 132, 154 (1925); BROLAN V. UNITED STATES, 236 U.S.
216, 218 (1915); BOYD V. UNITED STATES, 116 U.S. 616, 623 - 624 (1886);
ALEXANDER V. UNITED STATES, 362 F.2D 379, 382 (CA9), CERT. DENIED, 385
U.S. 977 (1966). 

[[HC126'(ORIGINAL DOCUMENT PAGE 126)'  THE PLENARY POWER OF CONGRESS
TO REGULATE IMPORTS IS ILLUSTRATED IN A HOLDING OF THIS COURT WHICH
SUSTAINED THE VALIDITY OF AN ACT OF CONGRESS PROHIBITING THE
IMPORTATION OF "ANY FILM OR OTHER PICTORIAL REPRESENTATION OF ANY PRIZE
FIGHT . . . DESIGNED TO BE USED OR (THAT) MAY BE USED FOR PURPOSES OF
PUBLIC EXHIBITION"  /3/  IN VIEW OF "THE COMPLETE POWER OF CONGRESS
OVER FOREIGN COMMERCE AND ITS AUTHORITY TO PROHIBIT THE INTRODUCTION OF
FOREIGN ARTICLES . . . . BUTTFIELD V. STRANAHAN, 192 U.S. 470; THE ABBY
DODGE, 223 U.S. 166, 176; BROLAN V. UNITED STATES, 236 U.S. 216." 
WEBER V. FREED, 239 U.S. 325, 329 (1915). 

CLAIMANT RELIES ON THE FIRST AMENDMENT AND OUR DECISION IN STANLEY V.
GEORGIA, 394 U.S. 557 (1969).  BUT IT IS NOW WELL ESTABLISHED THAT
OBSCENE MATERIAL IS NOT PROTECTED BY THE FIRST AMENDMENT.  ROTH V.
UNITED STATES, 354 U.S. 476, 485 (1957), REAFFIRMED TODAY IN MILLER V.
CALIFORNIA, ANTE, AT 23.  AS WE HAVE NOTED IN UNITED STATES V. ORITO,
POST, AT 141 - 143, ALSO DECIDED TODAY, STANLEY DEPENDED, NOT ON ANY
FIRST AMENDMENT RIGHT TO PURCHASE OR POSSESS OBSCENE MATERIALS, BUT ON
THE RIGHT TO PRIVACY IN THE HOME.  THREE CONCURRING JUSTICES INDICATED
THAT THE CASE COULD HAVE BEEN DISPOSED OF ON FOURTH AMENDMENT GROUNDS
WITHOUT REFERENCE TO THE NATURE OF THE MATERIALS.  STANELY V. GEORGIA,
SUPRA, AT 569 (STEWART, J., JOINED BY BRENNAN AND WHITE, JJ.,
CONCURRING). 

IN PARTICULAR, CLAIMANT CONTENDS THAT, UNDER STANLEY, THE RIGHT TO
POSSESS OBSCENE MATERIAL IN THE PRIVACY OF THE HOME CREATES A RIGHT TO
ACQUIRE IT OR IMPORT IT FROM ANOTHER COUNTRY. 

[[HC127'(ORIGINAL DOCUMENT PAGE 127)'  THIS OVERLOOKS THE EXPLICITLY
NARROW AND PRECISELY DELINEATED PRIVACY RIGHT ON WHICH STANLEY RESTS. 
THAT HOLDING REFLECTS NO MORE THAN WHAT MR. JUSTICE HARLAN
CHARACTERIZED AS THE LAW'S "SOLICITUDE TO PROTECT THE PRIVACIES OF THE
LIFE WITHIN (THE HOME.)"  POE V. ULLMAN, 367 U.S. 497, 551 (1961)
(DISSENTING OPINION).  /4/  THE SEDUCTIVE PLAUSIBILITY OF SINGLE STEPS
IN A CHAIN OF EVOLUTIONARY DEVELOPMENT OF A LEGAL RULE IS OFTEN NOT
PERCEIVED UNTIL A THIRD, FOURTH, OR FIFTH "LOGICAL" EXTENSION OCCURS. 
EACH STEP, WHEN TAKEN, APPEARED A REASONABLE STEP IN RELATION TO THAT
WHICH PRECEDED IT, ALTHOUGH THE AGGREGATE OR END RESULT IS ONE THAT
WOULD NEVER HAVE BEEN SERIOUSLY CONSIDERED IN THE FIRST INSTANCE.  /5/
THIS KIND OF GESTATIVE PROPENSITY CALLS FOR THE "LINE DRAWING" FAMILIAR
IN THE JUDICIAL, AS IN THE LEGISLATIVE PROCESS:  "THUS FAR BUT NOT
BEYOND."  PERSPECTIVES MAY CHANGE, BUT OUR CONCLUSION IS THAT STANLEY
REPRESENTS SUCH A LINE OF DEMARCATION; AND IT IS NOT UNREASONABLE TO
ASSUME THAT HAD IT NOT BEEN SO DELINEATED, STANLEY WOULD NOT BE THE LAW
TODAY.  SEE UNITED STATES V. REIDEL, 402 U.S. 351, 354 - 356 (1971);
ID., AT 357 - 360 (HARLAN, J., CONCURRING).  SEE ALSO MILLER V. UNITED
STATES, 431 F.2D 655, 657 (CA9 1970); UNITED STATES V. FRAGUS, 428 F.2D
1211, 1213 (CA5 1970); UNITED STATES V. MELVIN, 419 F.2D 136, (CA4
1969); GABLE V. JENKINS, 309 F.SUPP.  998, 1000 - 1001 (ND GA. 1969);
AFF'D, 397 U.S. 592 (1970).  CF. KARALEXIS V. BYRNE, 306 F.SUPP.  1363,
1366 (MASS. 1969), VACATED ON OTHER GROUNDS, 401 U.S. 216 (1971). 

WE ARE NOT DISPOSED TO EXTEND THE PRECISE, CAREFULLY LIMITED HOLDING
OF STANLEY TO PERMIT IMPORTATION OF ADMITTEDLY OBSCENE MATERIAL SIMPLY
BECAUSE THEY ARE IMPORTED FOR PRIVATE USE ONLY.  TO ALLOW SUCH A CLAIM
WOULD BE NOT UNLIKE COMPELLING THE GOVERNMENT TO PERMIT IMPORTATION OF
PROHIBITED OR CONTROLLED DRUGS FOR PRIVATE CONSUMPTION AS LONG AS SUCH
DRUGS ARE NOT FOR PUBLIC DISTRIBUTION OR SALE.  WE HAVE ALREADY
INDICATED THAT THE PROTECTED RIGHT TO POSSESS OBSCENE MATERIAL IN THE
PRIVACY OF ONE'S HOME DOES NOT GIVE RISE TO A CORRELATIVE RIGHT TO HAVE
SOMEONE SELL OR GIVE IT TO OTHERS.  UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, SUPRA, AT 376 (OPINION OF WHITE, J.), AND UNITED STATES V.
REIDEL, SUPRA, AT 355.  NOR IS THERE ANY CORRELATIVE RIGHT TO TRANSPORT
OBSCENE MATERIAL IN INTERSTATE COMMERCE.  UNITED STATES V. ORITO, POST,
AT 142 - 144.  /6/  IT FOLLOWS THAT STANLEY DOES NOT PERMIT ONE TO GO
ABROAD AND BRING SUCH MATERIAL INTO THE COUNTRY FOR PRIVATE PURPOSES. 
"STANLEY'S EMPHASIS WAS ON THE FREEDOM OF THOUGHT AND MIND IN THE
PRIVACY OF THE HOME.  BUT A PORT OF ENTRY IS NOT A TRAVELER'S HOME." 

[[HC129'(ORIGINAL DOCUMENT PAGE 129)'  UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, SUPRA, AT 376 (OPINION OF WHITE, J.). 

THIS IS NOT TO SAY THAT CONGRESS COULD NOT ALLOW AN EXEMPTION FOR
PRIVATE USE, WITH OR WITHOUT APPROPRIATE GUARANTEES SUCH AS BONDING, OR
PERMIT THE TRANSPORTATION OF OBSCENE MATERIAL UNDER CONDITIONS INSURING
PRIVACY.  BUT CONGRESS HAS NOT SEEN FIT TO DO SO, AND THE HOLDING IN
ROTH V. UNITED STATES, SUPRA, READ WITH THE NARROW HOLDING OF STANLEY
V. GEORGIA, SUPRA, DOES NOT AFFORD A BASIS FOR CLAIMANT'S ARGUMENTS. 
THE CONSTITUTION DOES NOT COMPEL, AND CONGRESS HAS NOT AUTHORIZED, AN
EXCEPTION FOR PRIVATE USE OF OBSCENE MATERIAL.  SEE PARIS ADULT THEATRE
I V. SLATON, ANTE, AT 64 - 69; UNITED STATES V. REIDEL, SUPRA, AT 357;
MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 462 (1966) (WHITE, J.,
DISSENTING). 

THE ATTACK ON THE OVERBREADTH OF THE STATUTE IS THUS FORECLOSED,
BUT, INDEPENDENTLY, WE SHOULD NOTE THAT IT IS EXTREMELY DIFFICULT TO
CONTROL THE USES TO WHICH OBSCENE MATERIAL IS PUT ONCE IT ENTERS THIS
COUNTRY.  EVEN SINGLE COPIES, REPRESENTED TO BE FOR PERSONAL USE, CAN
BE QUICKLY AND CHEAPLY DUPLICATED BY MODERN TECHNOLOGY THUS
FACILITATING WIDE-SCALE DISTRIBUTION.  WHILE IT IS TRUE THAT A LARGE
VOLUME OF OBSCENE MATERIAL ON MICROFILM COULD RATHER EASILY BE SMUGGLED
INTO THE UNITED STATES BY MAIL, OR OTHERWISE, AND COULD BE ENLARGED OR
REPRODUCED FOR COMMERCIAL PURPOSES, CONGRESS IS NOT PRECLUDED FROM
BARRING SOME AVENUES OF ILLEGAL IMPORTATION BECAUSE AVENUES EXIST THAT
ARE MORE DIFFICULT TO REGULATE.  SEE AMERICAN POWER & LIGHT CO. V. SEC,
329 U.S. 90, 99 - 100, (1946). 

AS THIS CASE CAME TO US ON THE DISTRICT COURT'S SUMMARY DISMISSAL OF
THE FORFEITURE ACTION, NO DETERMINATION OF THE OBSCENITY OF THE
MATERIALS INVOLVED HAS BEEN MADE.  WE HAVE TODAY ARRIVED AT STANDARDS
FOR TESTING THE CONSTITUTIONALITY OF STATE LEGISLATION REGULATING
OBSCENITY.  SEE MILLER V. CALIFORNIA, ANTE, AT 23 - 25. 

[[HC130'(ORIGINAL DOCUMENT PAGE 130)'  THESE STANDARDS ARE
APPLICABLE TO FEDERAL LEGISLATION.  /7/  THE JUDGMENT OF THE DISTRICT
COURT IS VACATED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION, MILLER V. CALIFORNIA, SUPRA, AND UNITED
STATES V. ORITO, SUPRA, BOTH DECIDED TODAY. 

              VACATED AND REMANDED. 

/1/  THE UNITED STATES BROUGHT THIS DIRECT APPEAL UNDER 28 U.S.C. ^
1252.  SEE CLARK V. GABRIEL, 393 U.S. 256, 258 (1968). 

/2/  ON THE DAY THE COMPLAINT WAS DISMISSED, CLAIMANT FILED AN
AFFIDAVIT WITH THE DISTRICT COURT STATING THAT NONE OF THE SEIZED
MATERIALS "WERE IMPORTED BY ME FOR ANY COMMERCIAL PURPOSE BUT WERE
INTENDED TO BE USED AND POSSESSED BY ME PERSONALLY."  IN CONJUNCTION
WITH THE GOVERNMENT'S MOTION TO STAY THE ORDER OF DISMISSAL, DENIED
BELOW BUT GRANTED TO MR. JUSTICE BRENNAN, THE GOVERNMENT CONCEDED IT
HAD NO EVIDENCE TO CONTRADICT CLAIMANT'S AFFIDAVIT AND DID NOT "CONTEST
THE FACT THAT THIS WAS A PRIVATE IMPORTATION." 

/3/  ACT OF JULY 31, 1912, C. 263, ^ 1, 37 STAT. 241. 

/4/  NOR CAN CLAIMANT RELY ON ANY OTHER SPHERE OF CONSTITUTIONALLY
PROTECTED PRIVACY, SUCH AS THAT WHICH ENCOMPASSES THE INTIMATE MEDICAL
PROBLEMS OF FAMILY, MARRIAGE, AND MOTHERHOOD.  SEE PARIS ADULT THEATRE
I V. SLATON, ANTE, AT 65 - 67, AND UNITED STATES V. ORITO, POST, AT 142
- 143. 

/5/  MR. JUSTICE HOLMES HAD THIS KIND OF SITUATION IN MIND WHEN HE
SAID: 

"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 (1908). 

/6/  IN CAMINETTI V. UNITED STATES, 242 U.S. 470 (1917), AND HOKE V.
UNITED STATES, 227 U.S. 308 (1913), THIS COURT UPHELD THE "SO-CALLED
WHITE SLAVE TRAFFIC ACT, WHICH WAS CONSTRUED TO PUNISH ANY PERSON
ENGAGED IN ENTICING A WOMAN FROM ONE STATE TO ANOTHER FOR IMMORAL ENDS,
WHETHER FOR COMMERCIAL PURPOSES OR OTHERWISE, . . . BECAUSE IT WAS
INTENDED TO PREVENT THE USE OF INTERSTATE COMMERCE TO FACILITATE
PROSTITUTION OR CONCUBINAGE, AND OTHER FORMS OF IMMORALITY."  BROOKS V.
UNITED STATES, 267 U.S. 432, 437 (1925) (EMPHASIS ADDED). 

/7/  WE FURTHER NOTE THAT, WHILE WE MUST LEAVE TO STATE COURTS THE
CONSTRUCTION OF STATE LEGISLATION, WE DO HAVE A DUTY TO AUTHORITATIVELY
CONSTRUE FEDERAL STATUTES WHERE "'A SERIOUS DOUBT OF CONSTITUTIONALITY
IS RAISED'" AND "'A CONSTRUCTION OF THE STATUTE IS FAIRLY POSSIBLE BY
WHICH THE QUESTION MAY BE AVOIDED.'"  UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, 402 U.S. 363, 369 (1971) (OPINION OF WHITE, J.), QUOTING
FROM CROWELL V. BENSON, 285 U.S. 22, 62 (1932).  IF AND WHEN SUCH A
"SERIOUS DOUBT" IS RAISED AS TO THE VAGUENESS OF THE WORDS "OBSCENE,"
"LEWD", "LASCIVIOUS," "FILTHY,"  "INDECENT," OR "IMMORAL" AS USED TO
DESCRIBE REGULATED MATERIAL IN 19 U.S.C. ^ 1305 (A) AND 18 U.S.C. ^
1462, SEE UNITED STATES V. ORITO, POST, AT 140 N. 1, WE ARE PREPARED TO
CONSTRUE SUCH TERMS AS LIMITING REGULATED MATERIAL TO PATENTLY
OFFENSIVE REPRESENTATIONS OR DESCRIPTIONS OF THAT SPECIFIC "HARD CORE"
SEXUAL CONDUCT GIVEN AS EXAMPLES IN MILLER V. CALIFORNIA, ANTE, AT 25. 
SEE UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, SUPRA, AT 369 - 374
(OPINION OF WHITE, J.).  OF COURSE, CONGRESS COULD ALWAYS DEFINE OTHER
SPECIFIC "HARD CORE" CONDUCT.     [[DOP 

MR. JUSTICE DOUGLAS, DISSENTING. 

I KNOW OF NO CONSTITUTIONAL WAY BY WHICH A BOOK, TRACT, PAPER,
POSTCARD, OR FILM MAY BE MADE CONTRABAND BECAUSE OF ITS CONTENTS.  THE
CONSTITUTION NEVER PURPORTED TO GIVE THE FEDERAL GOVERNMENT CENSORSHIP
OR OVERSIGHT OVER LITERATURE OR ARTISTIC PRODUCTIONS, SAVE AS THEY
MIGHT BE GOVERNED BY THE PATENT AND COPYRIGHT CLAUSE OF ART. 1, ^ 8,
CL. 8, OF THE CONSTITUTION.  /1/  TO BE SURE, THE COLONIES HAD ENACTED
STATUTES WHICH LIMITED THE FREEDOM OF SPEECH, SEE ROTH V. UNITED
STATES, 354 U.S. 476, 482 - 484, NN. 10 - 13, AND IN THE EARLY 19TH
CENTURY THE STATES PUNISHED OBSCENE LIBEL AS A COMMON-LAW CRIME. 

[[HC131'(ORIGINAL DOCUMENT PAGE 131)'  KNOWLES V. STATE, 3 DAY 103
(CONN. 1808) (SIGNS DEPICTING "MONSTER"); COMMONWEALTH V. HOLMES, 17
MASS. 336 (1821) (JOHN CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE); STATE
V. APPLING, 25 MO. 315, 316 (1857) (UTTERANCE OF WORDS "TOO VULGAR TO
BE INSERTED IN THIS OPINION"); COMMONWEALTH V. SHARPLESS, 2 S. & R. 91,
92 (1815) ("LEWD, WICKED, SCANDALOUS, INFAMOUS, . . . AND INDECENT
POSTURE WITH A WOMAN"). 

TO CONSTRUE THIS HISTORY, AS THIS COURT DOES TODAY IN MILLER V.
CALIFORNIA, ANTE, P. 15, AS QUALIFYING THE PLAIN IMPORT OF THE FIRST
AMENDMENT IS BOTH A NON SEQUITUR AND A DISREGARD OF THE TENTH
AMENDMENT. 

"(WHATEVER MAY (HAVE BEEN) THE FORM WHICH THE SEVERAL STATES . . .
ADOPTED IN MAKING DECLARATIONS IN FAVOR OF PARTICULAR RIGHTS," JAMES
MADISON, THE AUTHOR OF THE FIRST AMENDMENT, TELLS US, "THE GREAT OBJECT
IN VIEW (WAS) TO LIMIT AND QUALIFY THE POWERS OF (THE FEDERAL)
GOVERNMENT, BY EXCEPTING OUT OF THE GRANT OF POWER THOSE CASES IN WHICH
THE GOVERNMENT OUGHT NOT TO ACT, OR TO ACT ONLY IN A PARTICULAR MODE." 
1 ANNALS OF CONG. 437.  SURELY NO ONE SHOULD ARGUE THAT THE RETENTION
BY THE STATES OF VESTIGES OF ESTABLISHED RELIGIONS AFTER THE ENACTMENT
OF THE ESTABLISHMENT AND FREE EXERCISE CLAUSES SAPS THESE CLAUSES OF
THEIR MEANING.  /2/  YET IT WAS PRECISELY UPON SUCH REASONING THAT THIS
COURT, IN ROTH, EXEMPTED THE BAWDRY FROM THE PROTECTION OF THE FIRST
AMENDMENT. 

WHEN IT WAS ENACTED, THE BILL OF RIGHTS APPLIED ONLY TO THE FEDERAL
GOVERNMENT, BARRON V. MAYOR OF BALTIMORE, 7 PET. 243, AND THE TENTH
AMENDMENT RESERVED THE RESIDUUM OF POWER TO THE STATES AND THE PEOPLE. 

[[HC132'(ORIGINAL DOCUMENT PAGE 132)'  THAT THE STATES, AT SOME
LATER DATE, MAY HAVE EXERCISED THIS RESERVED POWER IN THE FORM OF LAWS
RESTRICTING EXPRESSION IN NO WISE DETRACTS FROM THE EXPRESS PROHIBITION
OF THE FIRST AMENDMENT.  ONLY WHEN THE FOURTEENTH AMENDMENT WAS PASSED
DID IT BECOME EVEN POSSIBLE TO ARGUE THAT THROUGH IT THE FIRST
AMENDMENT BECAME APPLICABLE TO THE STATES.  BUT THAT GOAL WAS NOT
ATTAINED UNTIL THE RULING OF THIS COURT IN 1931 THAT THE REACH OF THE
FOURTEENTH AMENDMENT INCLUDED THE FIRST AMENDMENT.  SEE STROMBERG V.
CALIFORNIA, 283 U.S. 359, 368. 

AT THE VERY BEGINNING, HOWEVER, THE FIRST AMENDMENT APPLIED ONLY TO
THE FEDERAL GOVERNMENT AND THERE IS NOT THE SLIGHTEST EVIDENCE THAT THE
FRAMERS INTENDED TO PUT THE NEWLY CREATED FEDERAL REGIME INTO THE ROLE
OF OMBUDSMAN OVER LITERATURE.  TYING CENSORSHIP TO THE MOVEMENT OF
LITERATURE OR FILMS IN INTERSTATE COMMERCE OR INTO FOREIGN COMMERCE
WOULD HAVE BEEN AN EASY WAY FOR A GOVERNMENT OF DELEGATED POWERS TO
IMPAIR THE LIBERTY OF EXPRESSION.  IT WAS TO BAR SUCH SUPPRESSION THAT
WE HAVE THE FIRST AMENDMENT.  I DARE SAY JEFFERSON AND MADISON WOULD BE
APPALLED AT WHAT THE COURT ESPOUSES TODAY. 

THE FIRST AMENDMENT WAS THE PRODUCT OF A ROBUST, NOT A PRUDISH,
AGE.  THE FOUR DECADES PRIOR TO ITS ENACTMENT "SAW THE PUBLICATION,
VIRTUALLY WITHOUT MOLESTATION FROM ANY AUTHORITY, OF TWO CLASSICS OF
PORNOGRAPHIC LITERATURE."  D. LOTH, THE EROTIC IN LITERATURE 108
(1961).  IN ADDITION TO WILLIAM KING'S THE TOAST, THERE WAS JOHN
CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE WHICH HAS BEEN DESCRIBED AS
THE "MOST IMPORTANT WORK OF GENUINE PORNOGRAPHY THAT HAS BEEN PUBLISHED
IN ENGLISH . . . ."  L. MARKUN, MRS. GRUNDY 191 (1930).  IN ENGLAND,
HARRIS' LIST OF COVENT GARDEN LADIES, A CATALOG USED BY PROSTITUTES TO
ADVERTISE THEIR TRADE, ENJOYED OPEN CIRCULATION. 

[[HC133'(ORIGINAL DOCUMENT PAGE 133)'  N. ST. JOHN-STEVAS, OBSCENITY
AND THE LAW 25 (1956).  BIBLIOGRAPHIES OF PORNOGRAPHIC LITERATURE LIST
COUNTLESS EROTIC WORKS WHICH WERE PUBLISHED IN THIS TIME.  SEE, E. G.,
A. CRAIG, SUPPRESSED BOOKS (1963); P. FRAXI, CATENA LIBRORUM TACENDORUM
(1885); W. GALLICHAN, THE POISON OF PRUDERY (1929); D. LOTH, SUPRA; L.
MARKUN, SUPRA.  THIS WAS THE AGE WHEN BENJAMIN FRANKLIN WROTE HIS
"ADVICE TO A YOUNG MAN ON CHOOSING A MISTRESS" AND "A LETTER TO THE
ROYAL ACADEMY AT BRUSSELS."  "WHEN THE UNITED STATES BECAME A NATION,
NONE OF THE FATHERS OF THE COUNTRY WERE ANY MORE CONCERNED THAN
FRANKLIN WITH THE QUESTION OF PORNOGRAPHY.  JOHN QUINCY ADAMS HAD A
STRONGLY PURITANICAL BENT FOR A MAN OF HIS LITERARY INTERESTS, AND EVEN
HE WROTE OF TOM JONES THAT IT WAS 'ONE OF THE BEST NOVELS IN THE
LANGUAGE.'"  LOTH, SUPRA, AT 120.  IT WAS IN THIS MILIEU THAT MADISON
ADMONISHED AGAINST ANY "DISTINCTION BETWEEN THE FREEDOM AND
LICENTIOUSNESS OF THE PRESS."  S. PADOVER, THE COMPLETE MADISON 295
(1953).  THE ANTHONY COMSTOCKS, THE THOMAS BOWDLERS AND VICTORIAN
HYPOCRISY--THE PREDECESSORS OF OUR PRESENT OBSCENITY LAWS--HAD YET TO
COME UPON THE STAGE.  /3/ 

JULIUS GOEBEL, OUR LEADING EXPERT ON COLONIAL LAW, DOES NOT SO MUCH
AS ALLUDE TO PUNISHMENT OF OBSCENITY.  /4/ 

[[HC134'(ORIGINAL DOCUMENT PAGE 134)'  J. GOEBEL, DEVELOPMENT OF
LEGAL INSTITUTIONS (1946); J. GOEBEL, FELONY AND MISDEMEANOR (1937); J.
GOEBEL & T. NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK (1944). 

NOR IS THERE ANY BASIS IN THE LEGAL HISTORY ANTEDATING THE FIRST
AMENDMENT FOR THE CREATION OF AN OBSCENITY EXCEPTION.  MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413; 424 (DOUGLAS, J., CONCURRING).  THE FIRST
REPORTED CASE INVOLVING OBSCENE CONDUCT WAS NOT UNTIL 1663.  THERE, THE
DEFENDANT WAS FINED FOR "SHEWING HIMSELF NAKED IN A BALKONY, AND
THROWING DOWN BOTTLES (PIST IN) VI & ARMIS AMONG THE PEOPLE IN CONVENT
GARDEN, CONTRA PACEM, AND TO THE SCANDEL OF THE GOVERNMENT."  SIR
CHARLES SYDLYES CASE, 83 ENG. REP. 1146 - 1147 (K. B. 1663).  RATHER
THAN BEING A FOUNTAINHEAD FOR A BODY OF LAW PROSCRIBING OBSCENE
LITERATURE, LATER COURTS VIEWED THIS CASE SIMPLY AS AN INSTANCE OF
ASSAULT, CRIMINAL BREACH OF THE PEACE, OR INDECENT EXPOSURE.  E. G.,
BRANDLAUGH V. QUEEN, L. R. 3 Q. B. 569, 634 (1878); REX V. CURL, 93
ENG. REP. 849, 851 (K. B. 1727) (FORTESCUE, J., DISSENTING). 

THE ADVENT OF THE PRINTING PRESS SPURRED CENSORSHIP IN ENGLAND, BUT
THE RIBALD AND THE OBSCENE WERE NOT, AT FIRST, WITHIN THE SCOPE OF THAT
WHICH WAS OFFICIALLY BANNED.  THE CENSORSHIP OF THE STAR CHAMBER AND
THE LICENSING OF BOOKS UNDER THE TUDORS AND STUARTS WAS AIMED AT THE
BLASPHEMOUS OR HERETICAL, THE SEDITIOUS OR TREASONOUS. 

[[HC135'(ORIGINAL DOCUMENT PAGE 135)'  AT THAT DATE, THE GOVERNMENT
MADE NO EFFORT TO PROHIBIT THE DISSEMINATION OF OBSCENITY.  RATHER,
OBSCENE LITERATURE WAS CONSIDERED TO RAISE A MORAL QUESTION PROPERLY
COGNIZABLE ONLY BY ECCLESIASTICAL, AND NOT THE COMMON-LAW, COURTS.  /5/
"A CRIME THAT SHAKES RELIGION (A), AS PROFANENESS ON THE STAGE, &C. IS
INDICTABLE (B); BUT WRITING AN OBSCENE BOOK, AS THAT INTITLED, "THE
FIFTEEN PLAGUES OF A MAIDENHEAD,"  IS NOT INDICTABLE, BUT PUNISHABLE
ONLY IN THE SPIRITUAL COURT (C)."  QUEEN V. READ, 88 ENG. REP. 953 (K.
B. 1707).  TO BE SURE, READ WAS ULTIMATELY OVERRULED AND THE CRIME OF
OBSCENE LIBEL ESTABLISHED.  REX V. CURL, SUPRA.  IT IS NOTEWORTHY,
HOWEVER, THAT THE ONLY REPORTED CASES OF OBSCENE LIBEL INVOLVED
POLITICALLY UNPOPULAR DEFENDANTS.  IBID.; REX V. WILKES, 98 ENG. REP.
327 (K. B. 1770). 

IN ANY EVENT, WHAT WE SAID IN BRIDGES V. CALIFORNIA, 314 U.S. 252,
264 - 265 (1941), WOULD DISPOSE OF ANY ARGUMENT THAT EARLIER
RESTRICTIONS ON FREE EXPRESSION SHOULD BE READ INTO THE FIRST
AMENDMENT: 

"(TO ASSUME THAT ENGLISH COMMON LAW IN THIS FIELD BECAME OURS IS TO
DENY THE GENERALLY ACCEPTED HISTORICAL BELIEF THAT 'ONE OF THE OBJECTS
OF THE REVOLUTION WAS TO GET RID OF THE ENGLISH COMMON LAW ON LIBERTY
OF SPEECH AND OF THE PRESS.'. . . . 

     "MORE SPECIFICALLY, IT IS TO FORGET THE ENVIRONMENT IN WHICH

  THE FIRST AMENDMENT WAS RATIFIED.  IN PRESENTING THE PROPOSALS

  WHICH WERE LATER EMBODIED IN THE BILL OF RIGHTS, JAMES MADISON,

  THE LEADER IN THE PREPARATION OF THE FIRST AMENDMENT, SAID:

  'ALTHOUGH I KNOW WHENEVER THE GREAT RIGHTS, THE TRIAL BY JURY,

  FREEDOM OF THE PRESS, OR LIBERTY OF CONSCIENCE, COME IN QUESTION

  IN THAT BODY (PARLIAMENT), THE INVASION OF THEM IS RESISTED BY

  ABLE ADVOCATES, YET THEIR MAGNA CHARTA DOES NOT CONTAIN ANY ONE

  PROVISION FOR THE SECURITY OF THOSE RIGHTS, RESPECTING WHICH THE

  PEOPLE OF AMERICA ARE MOST ALARMED. 

[[HC136'(ORIGINAL DOCUMENT PAGE 136)'

  THE FREEDOM OF THE PRESS AND RIGHTS OF CONSCIENCE, THOSE CHOICEST
PRIVILEGES OF THE PEOPLE,

  ARE UNGUARDED IN THE BRITISH CONSTITUTION.'" 

THIS COURT HAS NONETHELESS ENGRAFTED AN EXCEPTION UPON THE CLEAR
MEANING OF WORDS WRITTEN IN THE 18TH CENTURY.  BUT SEE IBID.; GROSJEAN
V. AMERICAN PRESS CO., 297 U.S. 233, 249. 

OUR EFFORTS TO DEFINE OBSCENITY HAVE NOT BEEN PRODUCTIVE OF
MEANINGFUL STANDARDS.  WHAT IS "OBSCENE" IS HIGHLY SUBJECTIVE, VARYING
FROM JUDGE TO JUDGE, FROM JURYMAN TO JURYMAN. 

"THE FIRESIDE BANTER OF CHAUCER'S CANTERBURY PILGRIMS WAS DISGUSTING
OBSCENITY TO VICTORIAN-TYPE MORALISTS WHOSE CO-ED GRANDDAUGHTERS SHOCK
THE VICTORIAN-TYPE MORALISTS OF TODAY.  WORDS THAT ARE OBSCENE IN
ENGLAND HAVE NOT A HINT OF IMPROPRIETY IN THE UNITED STATES, AND VICE
VERSA.  THE ENGLISH LANGUAGE IS FULL OF INNOCENT WORDS AND PHRASES WITH
OBSCENE ANCESTRY."  I. BRANT, THE BILL OF RIGHTS 490 (1965). 

SO SPEAKS OUR LEADING FIRST AMENDMENT HISTORIAN; AND HE WENT ON TO
SAY THAT THIS COURT'S DECISIONS "SEEMED TO MULTIPLY STANDARDS INSTEAD
OF CREATING ONE."  ID., AT 491.  THE REASON IS NOT THE INABILITY OR
MEDIOCRITY OF JUDGES. 

     "WHAT IS THE REASON FOR THIS MULTIPLE SCLEROSIS OF THE
JUDICIAL

  FACULTY?  IT IS DUE TO THE FACT STATED ABOVE, THAT OBSCENITY IS A

  MATTER OF TASTE AND SOCIAL CUSTOM, NOT OF FACT."  ID., AT 491 -

  492. 

TASTE AND CUSTOM ARE PART OF IT; BUT, AS I HAVE SAID ON OTHER
OCCASIONS, /6/  THE NEUROSES OF JUDGES, LAWMAKERS, AND OF THE SO-CALLED
"EXPERTS" WHO HAVE TAKEN THE PLACE OF ANTHONY COMSTOCK, ALSO PLAY A
MAJOR ROLE. 

[[HC137'(ORIGINAL DOCUMENT PAGE 137)' 

FINALLY, IT IS IRONIC TO ME THAT IN THIS NATION MANY PAGES MUST BE
WRITTEN AND MANY HOURS SPENT TO EXPLAIN WHY A PERSON WHO CAN READ
WHATEVER HE DESIRES, STANLEY V. GEORGIA, 394 U.S. 557, MAY NOT WITHOUT
VIOLATING A LAW CARRY THAT LITERATURE IN HIS BRIEFCASE OR BRING IT HOME
FROM ABROAD.  UNLESS THERE IS THAT ANCILLARY RIGHT, ONE'S STANLEY
RIGHTS COULD BE REALIZED, AS HAS BEEN SUGGESTED, ONLY IF ONE WROTE OR
DESIGNED A TRACT IN HIS ATTIC AND PRINTED OR PROCESSED IT IN HIS
BASEMENT, SO AS TO BE ABLE TO READ IT IN HIS STUDY.  UNITED STATES V.
THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363, 382 (BLACK, J., DISSENTING). 

MOST OF THE ITEMS THAT COME THIS WAY DENOUNCED AS "OBSCENE" ARE IN
MY VIEW TRASH.  I WOULD FIND FEW, IF ANY, THAT HAD BY MY STANDARDS ANY
REDEEMING SOCIAL VALUE.  BUT WHAT MAY BE TRASH TO ME MAY BE PRIZED BY
OTHERS.  /7/  MOREOVER, BY WHAT RIGHT UNDER THE CONSTITUTION DO FIVE OF
US HAVE TO IMPOSE OUR SET OF VALUES ON THE LITERATURE OF THE DAY? 
THERE IS DANGER IN THAT COURSE, THE DANGER OF BENDING THE POPULAR MIND
TO NEW NORMS OF CONFORMITY.  THERE IS, OF COURSE, ALSO DANGER IN
TOLERANCE, FOR TOLERANCE OFTEN LEADS TO ROBUST OR EVEN RIBALD
PRODUCTIONS.  YET THAT IS PART OF THE RISK OF THE FIRST AMENDMENT. 

IRVING BRANT SUMMED THE MATTER UP: 

"BLESSED WITH A FORM OF GOVERNMENT THAT REQUIRES UNIVERSAL LIBERTY
OF THOUGHT AND EXPRESSION, BLESSED WITH A SOCIAL AND ECONOMIC SYSTEM
BUILD ON THAT SAME FOUNDATION, THE AMERICAN PEOPLE HAVE CREATED THE
DANGER THEY FEAR BY DENYING TO THEMSELVES THE LIBERTIES THEY CHERISH." 
BRANT, SUPRA, AT 493. 

[[HC138'(ORIGINAL DOCUMENT PAGE 138)' 

[[DFN 

/1/  EVEN THE COPYRIGHT POWER IS LIMITED BY THE FREEDOMS SECURED BY
THE FIRST AMENDMENT.  LEE V. RUNGE, 404 U.S. 887, 892 - 893 (DOUGLAS,
J., DISSENTING); NIMMER, DOES COPYRIGHT ABRIDGE THE FIRST AMENDMENT
GUARANTEES OF FREE SPEECH AND PRESS?, 17 U. C. L. A. L. REV. 1180
(1970). 

/2/  THUS, THE SUGGESTION THAT MOST OF THE STATES THAT HAD RATIFIED
THE CONSTITUTION PUNISHED BLASPHEMY OR PROFANITY, IS IRRELEVANT TO OUR
INQUIRY HERE. 

/3/  SEPARATING THE WORTHWHILE FROM THE WORTHLESS HAS LARGELY BEEN A
MATTER OF INDIVIDUAL TASTE BECAUSE SIGNIFICANT GOVERNMENTAL SANCTIONS
AGAINST OBSCENE LITERATURE ARE OF RELATIVELY RECENT VINTAGE, NOT HAVING
DEVELOPED UNTIL THE VICTORIAL AGE OF THE MID-19TH CENTURY.  N. ST. JOHN
STEVAS, OBSCENITY AND THE LAW 1 - 85 (1956).  SEE T. EMERSON, THE
SYSTEM OF FREEDOM OF EXPRESSION 468 - 469 (1970); J. PAUL & M.
SCHWARTZ, FEDERAL CENSORSHIP, C. 1 (1961); REPORT OF THE COMMISSION ON
OBSCENITY AND PORNOGRAPHY 349 - 354 (1970).  IN THIS COUNTRY, THE FIRST
FEDERAL PROHIBITION ON OBSCENITY WAS NOT UNTIL THE TARIFF ACT OF 1842,
C. 270, ^ 28, 5 STAT. 566.  ENGLAND, WHICH GAVE US THE INFAMOUS STAR
CHAMBER AND A HISTORY OF LICENSING OF PUBLISHING, DID NOT RAISE A
STATUTORY BAR TO THE IMPORTATION OF OBSCENITY UNTIL 1853, CUSTOMS
CONSOLIDATION ACT, 16 & 17 VICT., C. 107, AND WAITED UNTIL 1857 TO
ENACT A STATUTE WHICH BANNED OBSCENE LITERATURE OUTRIGHT.  LORD
CAMPBELL'S ACT, 20 & 21 VICT., C. 83.     /4/  THE ONLY COLONIAL
STATUTE MENTIONING THE WORD "OBSCENE" WAS ACTS AND LAWS OF THE PROVINCE
OF MASS. BAY, C. CV, ^ 8 (1712), IN MASS. BAY COLONY CHARTER & LAWS 399
(1814).  IT DID SO, HOWEVER, IN THE CONTEXT OF "COMPOSING, WRITING,
PRINTING OR PUBLISHING . . . ANY FILTHY, OBSCENE, OR PROFANE SONG,
PAMPHLET, LIBEL OR MOCK SERMON, IN IMITATION OR IN MIMICKING OF
PREACHING, OR ANY OTHER PART OF DIVINE WORSHIP" AND MUST, THEREFORE, BE
PLACED WITH THE OTHER COLONIAL BLASPHEMY LAWS.  E. G., AN ACT FOR THE
PUNISHMENT OF DIVERS CAPITAL AND OTHER FELONIES, CONN. ACTS, LAWS,
CHARTER & ARTICLES OF CONFEDERATION 66, 67 (1784); ACT OF 1723, C. 16,
^ 1, DIGEST OF THE LAWS OF MD. 92 (HERTY 1799). 

/5/  LORD COKE'S DE LIBELLIS FAMOSIS, 77 ENG. REP. 250 (1605), FOR
EXAMPLE WAS THE DEFINITIVE STATEMENT OF THE COMMON LAW OF LIBEL BUT
MADE NO MENTION OF THE MISDEMEANOR OF OBSCENE LIBEL. 

/6/  GINSBERG V. NEW YORK, 390 U.S. 629, 655 - 656, 661 - 671
(DOUGLAS, J., DISSENTING). 

/7/  GINZBURG V. UNITED STATES, 383 U.S. 463, 491 (DOUGLAS, J.,
DISSENTING). 

[[DOP 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

WE NOTED PROBABLE JURISDICTION TO CONSIDER THE CONSTITUTIONALITY OF
19 U.S.C. ^ 1305 (A), WHICH PROHIBITS ALL PERSONS FROM "IMPORTING INTO
THE UNITED STATES FROM ANY FOREIGN COUNTRY . . . ANY OBSCENE BOOK,
PAMPHLET, PAPER, WRITING, ADVERTISEMENT, CIRCULAR, PRINT, PICTURE,
DRAWING, OR OTHER REPRESENTATION, FIGURE, OR IMAGE ON OR OF PAPER OR
OTHER MATERIAL, OR ANY CAST, INSTRUMENT, OR OTHER ARTICLE WHICH IS
OBSCENE OR IMMORAL."  PURSUANT TO THAT PROVISION, CUSTOMS AUTHORITIES
AT LOS ANGELES SEIZED CERTAIN MOVIE FILMS, COLOR SLIDES, PHOTOGRAPHS,
AND OTHER MATERIALS, WHICH CLAIMANT SOUGHT TO IMPORT INTO THE UNITED
STATES.  A COMPLAINT WAS FILED IN THE UNITED STATES DISTRICT COURT FOR
THE CENTRAL DISTRICT OF CALIFORNIA FOR FORFEITURE OF THESE ITEMS AS
OBSCENE.  RELYING ON THE DECISION IN UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, 309 F.SUPP.  36 (CD CAL. 1969), WHICH HELD THE STATUTE
UNCONSTITUTIONAL ON ITS FACE, THE DISTRICT COURT DISMISSED THE
COMPLAINT.  ALTHOUGH WE SUBSEQUENTLY REVERSED THE DECISION IN UNITED
STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363 (1971), THE REASONING
THAT LED US TO UPHOLD THE STATUTE IS NO LONGER VIABLE, UNDER THE VIEW
EXPRESSED IN MY DISSENT TODAY IN PARIS ADULT THEATRE I V. SLATON, ANTE,
P. 73.  WHATEVER THE EXTENT OF THE FEDERAL GOVERNMENT'S POWER TO BAR
THE DISTRIBUTION OF ALLEGEDLY OBSCENE MATERIAL TO JUVENILES OR THE
OFFENSIVE EXPOSURE OF SUCH MATERIAL TO UNCONSENTING ADULTS, THE STATUTE
BEFORE US IS, IN MY VIEW, CLEARLY OVERBROAD AND UNCONSTITUTIONAL ON ITS
FACE.  SEE MY DISSENT IN MILLER V. CALIFORNIA, ANTE, P. 47.  I WOULD
THEREFORE AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

SOLICITOR GENERAL GRISWOLD REARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON,
DEPUTY SOLICITOR GENERAL GREENAWALT, AND SIDNEY M. GLAZER. 

THOMAS H. KUCKEL, BY INVITATION OF THE COURT, 404 U.S. 813, REARGUED
THE CAUSE AS AMICUS CURIAE IN SUPPORT OF THE JUDGMENT BELOW.  WITH HIM
ON THE BRIEF WERE EDWARD WEINBERG, GEORGE MIRON, AND EZRA C. LEVINE. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY MELVIN L.
WULF AND JOEL M. GORA FOR THE AMERICAN CIVIL LIBERTIES UNION; BY JOEL
HIRSCHHORN, RALPH J. SCHWARZ, JR., AND MEL S. FRIEDMAN FOR THE FIRST
AMENDMENT LAWYERS' ASSN.; AND BY HARVEY A. SILVERGLATE FOR CHRISTOPHER
W. WALKER. 
..END :









UNITED STATES V. ORITO 413 U.S. 139 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF WISCONSIN 

     NO. 70 - 69.  ARGUED JANUARY 19, 1972--REARGUED NOVEMBER 7,

1972--DECIDED JUNE 21, 1973; 338 F.SUPP.  308, VACATED AND

REMANDED. 


    APPELLEE WAS CHARGED WITH KNOWINGLY TRANSPORTING OBSCENE

  MATERIAL BY COMMON CARRIER IN INTERSTATE COMMERCE, IN VIOLATION

  OF 18 U.S.C. ^ 1462.  THE DISTRICT COURT GRANTED HIS MOTION TO

  DISMISS, HOLDING THE STATUTE UNCONSTITUTIONALLY OVERBROAD FOR

  FAILING TO DISTINGUISH BETWEEN PUBLIC AND NONPUBLIC

  TRANSPORTATION.  APPELLEE RELIES ON STANLEY V. GEORGIA, 394 U.S.

  557.  HELD:  CONGRESS HAS THE POWER TO PREVENT OBSCENE MATERIAL,

  WHICH IS NOT PROTECTED BY THE FIRST AMENDMENT, FROM ENTERING THE

  STREAM OF COMMERCE.  THE ZONE OF PRIVACY THAT STANLEY PROTECTED

  DOES NOT EXTEND BEYOND THE HOME.  SEE UNITED STATES V. 12 200-FT.

  REELS OF FILM ANTE, P. 123; PARIS ADULT THEATRE I V. SLATON,

  ANTE, P. 49.  THIS CASE IS REMANDED TO THE DISTRICT COURT FOR

  RECONSIDERATION OF THE SUFFICIENCY OF THE INDICTMENT IN LIGHT OF

  MILLER V. CALIFORNIA, ANTE, P. 15; UNITED STATES V. 12 200-FT.

  REELS OF FILM, SUPRA, AND THIS OPINION.  PP. 141 - 145. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 145.  BRENNAN, J., FILED A DISSENTING
OPINION, IN WHICH STEWART AND MARSHALL, JJ., JOINED, POST, P. 147. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

[[HC140'(ORIGINAL DOCUMENT PAGE 140)' 

APPELLEE ORITO WAS CHARGED IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF WISCONSIN WITH A VIOLATION OF 18 U.S.C. ^ 1462
/1/  IN THAT HE DID "KNOWINGLY" TRANSPORT AND CARRY IN INTERSTATE
COMMERCE FROM SAN FRANCISCO . . . TO MILWAUKEE . . . BY MEANS OF A
COMMON CARRIER, THAT IS, TRANS-WORLD AIRLINES AND NORTH CENTRAL
AIRLINES, COPIES OF (SPECIFIED) OBSCENE, LEWD, LASCIVIOUS, AND FILTHY
MATERIALS . . . ."  THE MATERIALS SPECIFIED INCLUDED SOME 83 REELS OF
FILM, WITH AS MANY AS EIGHT TO 10 COPIES OF SOME OF THE FILMS. 
APPELLEE MOVED TO DISMISS THE INDICTMENT ON THE GROUND THAT THE STATUTE
VIOLATED HIS FIRST AND NINTH AMENDMENT RIGHTS.  /2/  THE DISTRICT COURT
GRANTED HIS MOTION, HOLDING THAT THE STATUTE WAS UNCONSTITUTIONALLY
OVERBROAD SINCE IT FAILED TO DISTINGUISH BETWEEN "PUBLIC" AND "NON
PUBLIC"  TRANSPORTATION OF OBSCENE MATERIAL.  THE DISTRICT COURT
INTERPRETED THIS COURT'S DECISIONS IN GRISWOLD V. CONNECTICUT, 381 U.S.
479 (1965); REDRUP V. NEW YORK, 386 U.S. 767 (1967); AND STANLEY V.
GEORGIA, 394 U.S. 557 (1969), TO ESTABLISH THE PROPOSITION THAT "NON
PUBLIC TRANSPORTATION" OF OBSCENE MATERIAL WAS CONSTITUTIONALLY
PROTECTED.  /3/ 

[[HC141'(ORIGINAL DOCUMENT PAGE 141)' 

ALTHOUGH THE DISTRICT COURT HELD THE STATUTE VOID ON ITS FACE FOR
OVERBREADTH, IT IS NOT CLEAR WHETHER THE STATUTE WAS HELD TO BE
OVERBROAD BECAUSE IT COVERED TRANSPORTATION INTENDED SOLELY FOR THE
PRIVATE USE OF THE TRANSPORTER, OR BECAUSE, REGARDLESS OF THE INTENDED
USE OF THE MATERIAL, THE STATUTE EXTENDED TO "PRIVATE CARRIAGE" OR "NON
PUBLIC" TRANSPORTATION WHICH IN ITSELF INVOLVED NO RISK OF EXPOSURE TO
CHILDREN OR UNWILLING ADULTS.  THE UNITED STATES BROUGHT THIS DIRECT
APPEAL UNDER THE FORMER 18 U.S.C. SEC. 3731 (1964 ED.)  NOW AMENDED,
PUB. L. 91 - 644, SEC. 14 (A), 84 STAT. 1890.  SEE UNITED STATES V.
SPECTOR, 343 U.S. 169, 171 (1952). 

THE DISTRICT COURT ERRED IN STRIKING DOWN 18 U.S.C. ^ 1462 AND
DISMISSING APPELLEE'S INDICTMENT ON THESE "PRIVACY" GROUNDS.  THE
ESSENCE OF APPELLEE'S CONTENTIONS IS THAT STANLEY HAS FIRMLY
ESTABLISHED THE RIGHT TO POSSESS OBSCENE MATERIAL IN THE PRIVACY OF THE
HOME AND THAT THIS CREATES A CORRELATIVE RIGHT TO RECEIVE IT, TRANSPORT
IT, OR DISTRIBUTE IT.  WE HAVE REJECTED THAT REASONING.  THIS CASE WAS
DECIDED BY THE DISTRICT COURT BEFORE OUR DECISIONS IN UNITED STATES V.
THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363 (1971), AND UNITED STATES V.
REIDEL, 402 U.S. 351 (1971).  THOSE HOLDINGS NEGATE THE IDEA THAT SOME
ZONE OF CONSTITUTIONALLY PROTECTED PRIVACY FOLLOWS SUCH MATERIAL WHEN
IT IS MOVED OUTSIDE THE HOME AREA PROTECTED BY STANLEY.  /4/ 

[[HC142'(ORIGINAL DOCUMENT PAGE 142)'  UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, SUPRA, AT 376 (OPINION OF WHITE, J.).  UNITED STATES V.
REIDEL, SUPRA, AT 354 - 356.  SEE UNITED STATES V. ZACHER, 332 F.SUPP. 
883, 885 - 886 (ED WIS. 1971).  BUT CF. UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, SUPRA, AT 379 (STEWART, J., CONCURRING). 

THE CONSTITUTION EXTENDS SPECIAL SAFEGUARDS TO THE PRIVACY OF THE
HOME, JUST AS IT PROTECTS OTHER SPECIAL PRIVACY RIGHTS SUCH AS THOSE OF
MARRIAGE, PROCREATION, MOTHERHOOD, CHILD REARING, AND EDUCATION.  SEE
EISENSTADT V. BAIRD, 405 U.S. 438, 453 - 454 (1972); LOVING V.
VIRGINIA, 388 U.S. 1, 12 (1967); GRISWOLD V. CONNECTICUT, SUPRA, AT
486; PRINCE V. MASSACHUSETTS, 321 U.S. 158, 166 (1944); SKINNER V.
OKLAHOMA, 316 U.S. 535, 541 (1942); PIERCE V. SOCIETY OF SISTERS, 268
U.S. 510, 535 (1925).  BUT VIEWING OBSCENE FILMS IN A COMMERCIAL
THEATER OPEN TO THE ADULT PUBLIC, SEE PARIS ADULT THEATRE I V. SLATON,
ANTE, AT 65 - 67, OR TRANSPORTING SUCH FILMS IN COMMON CARRIERS IN
INTERSTATE COMMERCE, HAS NO CLAIM TO SUCH SPECIAL CONSIDERATION.  /5/
IT IS HARDLY NECESSARY TO CATALOG THE MYRIAD ACTIVITIES THAT MAY BE
LAWFULLY CONDUCTED WITHIN THE PRIVACY AND CONFINES OF THE HOME, BUT MAY
BE PROHIBITED IN PUBLIC. 

[[HC143'(ORIGINAL DOCUMENT PAGE 143)'  THE COURT HAS CONSISTENTLY
REJECTED CONSTITUTIONAL PROTECTION FOR OBSCENE MATERIAL OUTSIDE THE
HOME.  SEE UNITED STATES V. 12 200-FT. REELS OF FILM, ANTE, AT 126 -
129; MILLER V. CALIFORNIA, ANTE, AT 23; UNITED STATES V. REIDEL, SUPRA,
AT 354 - 356 (OPINION OF WHITE, J.); ID., AT 357 - 360 (HARLAN, J.,
CONCURRING); ROTH V. UNITED STATES, 354 U.S. 476, 484 - 485 (1957). 

GIVEN (A) THAT OBSCENE MATERIAL IS NOT PROTECTED UNDER THE FIRST
AMENDMENT, MILLER V. CALIFORNIA, SUPRA, ROTH V. UNITED STATES, SUPRA,
(B) THAT THE GOVERNMENT HAS A LEGITIMATE INTEREST IN PROTECTING THE
PUBLIC COMMERCIAL ENVIRONMENT BY PREVENTING SUCH MATERIAL FROM ENTERING
THE STREAM OF COMMERCE, SEE PARIS ADULT THEATRE I, ANTE, AT 57 - 64,
AND (C) THAT NO CONSTITUTIONALLY PROTECTED PRIVACY IS INVOLVED, UNITED
STATES V. THIRTY-SEVEN PHOTOGRAPHS, SUPRA, AT 376 (OPINION OF WHITE,
J.), WE CANNOT SAY THAT THE CONSTITUTION FORBIDS COMPREHENSIVE FEDERAL
REGULATION OF INTERSTATE TRANSPORTATION OF OBSCENE MATERIAL MERELY
BECAUSE THE MATERIAL IS INTENDED FOR THE PRIVATE USE OF THE
TRANSPORTER.  THAT THE TRANSPORTER HAS AN ABSTRACT PROPRIETARY POWER TO
SHIELD THE OBSCENE MATERIAL FROM ALL OTHERS AND TO GUARD THE MATERIAL
WITH THE SAME PRIVACY AS IN THE HOME IS NOT CONTROLLING.  CONGRESS MAY
REGULATE ON THE BASIS OF THE NATURAL TENDENCY OF MATERIAL IN THE HOME
BEING KEPT PRIVATE AND THE CONTRARY TENDENCY ONCE MATERIAL LEAVES THAT
AREA, REGARDLESS OF A TRANSPORTER'S PROFESSED INTENT.  CONGRESS COULD
REASONABLY DETERMINE SUCH REGULATION TO BE NECESSARY TO EFFECT
PERMISSIBLE FEDERAL CONTROL OF INTERSTATE COMMERCE IN OBSCENE MATERIAL,
BASED AS THAT REGULATION IS ON A LEGISLATIVELY DETERMINED RISK OF
ULTIMATE EXPOSURE TO JUVENILES OR TO THE PUBLIC AND THE HARM THAT
EXPOSURE COULD CAUSE. 

[[HC144'(ORIGINAL DOCUMENT PAGE 144)'  SEE PARIS ADULT THEATRE I V.
SLATON, ANTE, AT 57 - 63.  SEE ALSO UNITED STATES V. ALPERS, 338 U.S.
680, 681 - 685 (1950); BROOKS V. UNITED STATES, 267 U.S. 432, 436 - 437
(1925); WEBER V. FREED, 239 U.S. 325, 329 - 330 (1915).  "THE MOTIVE
AND PURPOSE OF A REGULATION OF INTERSTATE COMMERCE ARE MATTERS FOR THE
LEGISLATIVE JUDGMENT UPON THE EXERCISE OF WHICH THE CONSTITUTION PLACES
NO RESTRICTION AND OVER WHICH THE COURTS ARE GIVEN NO CONTROL.  MC CRAY
V. UNITED STATES, 195 U.S. 27; SONZINSKY V. UNITED STATES, 300 U.S.
506, 513 AND CASES CITED."  UNITED STATES V. DARBY, 312 U.S. 100, 115
(1941).  "IT IS SUFFICIENT TO REITERATE THE WELL-SETTLED PRINCIPLE THAT
CONGRESS MAY IMPOSE RELEVANT CONDITIONS AND REQUIREMENTS ON THOSE WHO
USE THE CHANNELS OF INTERSTATE COMMERCE IN ORDER THAT THOSE CHANNELS
WILL NOT BECOME THE MEANS OF PROMOTING OR SPREADING EVIL, WHETHER OF A
PHYSICAL, MORAL OR ECONOMIC NATURE."  NORTH AMERICAN CO. V. SEC, 327
U.S. 686, 705 (1946).  /6/ 

AS THIS CASE CAME TO US ON THE DISTRICT COURT'S SUMMARY DISMISSAL OF
THE INDICTMENT, NO DETERMINATION OF THE OBSCENITY OF THE MATERIAL
INVOLVED HAS BEEN MADE. 

[[HC145'(ORIGINAL DOCUMENT PAGE 145)'  TODAY, FOR THE FIRST TIME
SINCE ROTH V. UNITED STATES, SUPRA, WE HAVE ARRIVED AT STANDARDS
ACCEPTED BY A MAJORITY OF THIS COURT FOR DISTINGUISHING OBSCENE
MATERIAL, UNPROTECTED BY THE FIRST AMENDMENT, FROM PROTECTED FREE
SPEECH.  SEE MILLER V. CALIFORNIA, ANTE, AT 23 - 25, UNITED STATES V.
12 200-FT. REELS OF FILM, ANTE, AT 130 N. 7.  THE DECISION OF THE
DISTRICT COURT IS THEREFORE VACATED AND THE CASE IS REMANDED FOR
RECONSIDERATION OF THE SUFFICIENCY OF THE INDICTMENT IN LIGHT OF MILLER
V. CALIFORNIA, SUPRA; UNITED STATES V. 12 200-FT. REELS, SUPRA; AND
THIS OPINION. 

    VACATED AND REMANDED. 

/1/  TITLE 18 U.S.C. ^ 1462 PROVIDES IN PERTINENT PART: 

"WHOEVER BRINGS INTO THE UNITED STATES, OR ANY PLACE SUBJECT TO THE
JURISDICTION THEREOF, OR KNOWINGLY USES ANY EXPRESS COMPANY OR OTHER
COMMON CARRIER, FOR CARRIAGE IN INTERSTATE OR FOREIGN COMMERCE-- 

"(A) ANY OBSCENE, LEWD, LASCIVIOUS, OR FILTHY BOOK, PAMPHLET,
PICTURE, MOTION-PICTURE FILM, PAPER, LETTER, WRITING, PRINT, OR OTHER
MATTER OF INDECENT CHARACTER; . . . . . . 

"SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN
FIVE YEARS, OR BOTH, FOR THE FIRST SUCH OFFENSE AND SHALL BE FINED NOT
MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TEN YEARS, OR BOTH, FOR
EACH SUCH OFFENSE THEREAFTER." 

/2/  APPELLEE ALSO MOVED TO DISMISS THE INDICTMENT ON THE GROUNDS
THAT 18 U.S.C. ^ 1462 DOES NOT REQUIRE PROOF OF SCIENTER.  THAT ISSUE
WAS NOT REACHED BY THE DISTRICT COURT AND IS NOT BEFORE US NOW. 

/3/  THE DISTRICT COURT STATED:  "BY ANALOGY, IT FOLLOWS THAT WITH
THE RIGHT TO READ OBSCENE MATTERS COMES THE RIGHT TO TRANSPORT OR TO
RECEIVE SUCH MATERIAL WHEN DONE IN A FASHION THAT DOES NOT PANDER IT OR
IMPOSE IT UPON UNWILLING ADULTS OR UPON MINORS. 

.          .          .          . "I FIND NO MEANINGFUL DISTINCTION
BETWEEN THE PRIVATE POSSESSION WHICH WAS HELD TO BE PROTECTED IN
STANLEY AND THE NON-PUBLIC TRANSPORTATION WHICH THE STATUTE AT BAR
PROSCRIBES."  338 F.SUPP.  308, 310 (1970). 

/4/  "THESE ARE THE RIGHTS THAT APPELLANT IS ASSERTING IN THE CASE
BEFORE US.  HE IS ASSERTING THE RIGHT TO READ OR OBSERVE WHAT HE
PLEASES--THE RIGHT TO SATISFY HIS INTELLECTUAL AND EMOTIONAL NEEDS IN
THE PRIVACY OF HIS OWN HOME."  STANLEY V. GEORGIA, 394 U.S. 557, 565
(1969).  (EMPHASIS ADDED). 

/5/  THE SOLICITOR GENERAL INDICATES THAT THE TARIFFS OF MOST, IF
NOT ALL, COMMON CARRIERS INCLUDE A RIGHT OF INSPECTION.  RESORTING TO
COMMON CARRIERS, LIKE ENTERING A PLACE OF PUBLIC ACCOMMODATION, DOES
NOT INVOLVE THE PRIVACIES ASSOCIATED WITH THE HOME.  SEE UNITED STATES
V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363, 376 (1971) (OPINION OF
WHITE, J.); UNITED STATES V. REIDEL, 402 U.S. 351, 359 - 360 (1971)
(HARLAN, J., CONCURRING); POE V. ULLMAN, 367 U.S. 497, 551 - 552 (1961)
(HARLAN, J., DISSENTING); MILLER V. UNITED STATES, 431 F.2D 655, 657
(CA9 1970); UNITED STATES V. MELVIN, 419 F.2D 136, 139 (CA4 1969). 

/6/  "CONGRESS CAN CERTAINLY REGULATE INTERSTATE COMMERCE TO THE
EXTENT OF FORBIDDING AND PUNISHING THE USE OF SUCH COMMERCE AS AN
AGENCY TO PROMOTE IMMORALITY, DISHONESTY OF THE SPREAD OF ANY EVIL OR
HARM TO THE PEOPLE OF OTHER STATES FROM THE STATE OF ORIGIN.  IN DOING
THIS IT IS MERELY EXERCISING THE POLICE POWER, FOR THE BENEFIT OF THE
PUBLIC, WITHIN THE FIELD OF INTERSTATE COMMERCE.  . . . IN THE LOTTERY
CASE, 188 U.S. 321, IT WAS HELD THAT CONGRESS MIGHT PASS A LAW
PUNISHING THE TRANSMISSION OF LOTTERY TICKETS FROM ONE STATE TO
ANOTHER, IN ORDER TO PREVENT THE CARRIAGE OF THOSE TICKETS TO BE SOLD
IN OTHER STATES AND THUS DEMORALIZE, THROUGH A SPREAD OF THE GAMBLING
HABIT, INDIVIDUALS WHO WERE LIKELY TO PURCHASE.  . . . IN HOKE V.
UNITED STATES, 227 U.S. 308 AND CAMINETTI V. UNITED STATES, 242 U.S.
470, THE SO-CALLED WHITE SLAVE TRAFFIC ACT, WHICH WAS CONSTRUED TO
PUNISH ANY PERSON ENGAGED IN ENTICING A WOMAN FROM ONE STATE TO ANOTHER
FOR IMMORAL ENDS, WHETHER FOR COMMERCIAL PURPOSES OR OTHERWISE, WAS
VALID BECAUSE IT WAS INTENDED TO PREVENT THE USE OF INTERSTATE COMMERCE
TO FACILITATE PROSTITUTION OR CONCUBINAGE, AND OTHER FORMS OF
IMMORALITY.  . . . IN WEBER V. FREED, 239 U.S. 325, IT WAS HELD THAT
CONGRESS HAD POWER TO PROHIBIT THE IMPORTATION OF PICTORIAL
REPRESENTATIONS OF PRIZE FIGHTS DESIGNED FOR PUBLIC EXHIBITION, BECAUSE
OF THE DEMORALIZING EFFECT OF SUCH EXHIBITIONS IN THE STATE OF
DESTINATION."  BROOKS V. UNITED STATES, 267 U.S. 432, 436 - 437
(1925). 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING. 

WE HELD IN STANLEY V. GEORGIA, 394 U.S. 557, THAT AN INDIVIDUAL
READING OR EXAMINING "OBSCENE" MATERIALS IN THE PRIVACY OF HIS HOME IS
PROTECTED AGAINST STATE PROSECUTION BY REASON OF THE FIRST AMENDMENT
MADE APPLICABLE TO THE STATES BY REASON OF THE FOURTEENTH.  WE SAID: 

     "THESE ARE THE RIGHTS THAT APPELLANT IS ASSERTING IN THE CASE

  BEFORE US.  HE IS ASSERTING THE RIGHT TO READ OR OBSERVE WHAT HE

  PLEASES--THE RIGHT TO SATISFY HIS INTELLECTUAL AND EMOTIONAL

NEEDS IN THE PRIVACY OF HIS OWN HOME.  HE IS ASSERTING THE RIGHT

  TO BE FREE FROM STATE INQUIRY INTO THE CONTENTS OF HIS LIBRARY. 

  GEORGIA CONTENDS THAT APPELLANT DOES NOT HAVE THESE RIGHTS, THAT

  THERE ARE CERTAIN TYPES OF MATERIALS THAT THE INDIVIDUAL MAY NOT

  READ OR EVEN POSSESS.  GEORGIA JUSTIFIES THIS ASSERTION BY

  ARGUING THAT THE FILMS IN THE PRESENT CASE ARE OBSCENE. 

[[HC146'(ORIGINAL DOCUMENT PAGE 146)'

  BUT WE THINK THAT MERE CATEGORIZATION OF THESE FILMS AS 'OBSCENE'
IS INSUFFICIENT

  JUSTIFICATION FOR SUCH A DRASTIC INVASION OF PERSONAL LIBERTIES
GUARANTEED BY THE FIRST AND

  FOURTEENTH AMENDMENTS.  WHATEVER MAY BE THE JUSTIFICATIONS FOR
OTHER STATUTES REGULATING

  OBSCENITY, WE DO NOT THINK THEY REACH INTO THE PRIVACY OF ONE'S
OWN HOME.  IF THE FIRST

  AMENDMENT MEANS ANYTHING, IT MEANS THAT A STATE HAS NO BUSINESS
TELLING A MAN, SITTING ALONE

  IN HIS OWN HOUSE, WHAT BOOKS HE MAY READ OR WHAT FILMS HE MAY
WATCH.  OUR WHOLE CONSTITUTIONAL

  HERITAGE REBELS AT THE THOUGHT OF GIVING GOVERNMENT THE POWER TO
CONTROL MEN'S MINDS."  ID.,

  AT 565.     BY THAT REASONING A PERSON WHO READS AN "OBSCENE"
BOOK ON AN AIRLINE OR BUS OR TRAIN IS PROTECTED.  SO IS HE WHO CARRIES
AN "OBSCENE"  BOOK IN HIS POCKET DURING A JOURNEY FOR HIS INTENDED
PERSONAL ENJOYMENT.  SO IS HE WHO CARRIES THE BOOK IN HIS BAGGAGE OR
HAS A TRUCKING COMPANY MOVE HIS HOUSEHOLD EFFECTS TO A NEW RESIDENCE. 
YET 18 U.S.C. ^ 1462 /1/  MAKES SUCH INTERSTATE CARRIAGE UNLAWFUL. 
APPELLEE THEREFORE MOVED TO DISMISS THE INDICTMENT ON THE GROUND THAT ^
1462 IS SO BROAD AS TO COVER "OBSCENE" MATERIAL DESIGNED FOR PERSONAL
USE. 

THE DISTRICT COURT GRANTED THE MOTION, HOLDING THAT ^ 1462 WAS
OVERBROAD AND IN VIOLATION OF THE FIRST AMENDMENT.     THE CONCLUSION
IS TOO OBVIOUS FOR ARGUMENT, UNLESS WE ARE TO OVERRULE STANLEY.  I
WOULD ABIDE BY STANLEY AND AFFIRM THE JUDGMENT DISMISSING THE
INDICTMENT. 

[[DFN 

/1/  WHOEVER BRINGS INTO THE UNITED STATES, OR ANY PLACE SUBJECT TO
THE JURISDICTION THEREOF, OR KNOWINGLY USES ANY EXPRESS COMPANY OR
OTHER COMMON CARRIER, FOR CARRIAGE IN INTERSTATE OR FOREIGN COMMERCE-- 

"(A) ANY OBSCENE, LEWD, LASCIVIOUS, OR FILTHY BOOK, PAMPHLET,
PICTURE, MOTION-PICTURE FILM, PAPER, LETTER, WRITING, PRINT, OR OTHER
MATTER OF INDECENT CHARACTER." 

[[DOP 

MR. JUSTICE BRENNAN WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

[[HC147'(ORIGINAL DOCUMENT PAGE 147)' 

WE NOTED PROBABLE JURISDICTION TO CONSIDER THE CONSTITUTIONALITY OF
18 U.S.C. ^ 1462, WHICH MAKES IT A FEDERAL OFFENSE TO "(BRING) INTO THE
UNITED STATES, OR ANY PLACE SUBJECT TO THE JURISDICTION THEREOF, OR
KNOWINGLY (USE) ANY EXPRESS COMPANY OR OTHER COMMON CARRIER, FOR
CARRIAGE IN INTERSTATE OR FOREIGN COMMERCE--(A) ANY OBSCENE, LEWD,
LASCIVIOUS, OR FILTHY BOOK, PAMPHLET, PICTURE, MOTION-PICTURE FILM,
PAPER, LETTER, WRITING, PRINT, OR OTHER MATTER OF INDECENT CHARACTER." 
APPELLEE WAS CHARGED IN A ONE-COUNT INDICTMENT WITH HAVING KNOWINGLY
TRANSPORTED IN INTERSTATE COMMERCE OVER 80 REELS OF ALLEGEDLY OBSCENE
MOTION PICTURE FILM.  RELYING PRIMARILY ON OUR DECISION IN STANLEY V.
GEORGIA, 394 U.S. 557 (1969), THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN DISMISSED THE INDICTMENT, HOLDING THE
STATUTE UNCONSTITUTIONAL ON ITS FACE: 

     "TO PREVENT THE PANDERING OF OBSCENE MATERIALS OR ITS EXPOSURE

  TO CHILDREN OR TO UNWILLING ADULTS, THE GOVERNMENT HAS A

  SUBSTANTIAL AND VALID INTEREST TO BAR THE NON-PRIVATE

  TRANSPORTATION OF SUCH MATERIALS.  HOWEVER, THE STATUTE WHICH IS

  NOW BEFORE THE COURT DOES NOT SO DELIMIT THE GOVERNMENT'S

  PREROGATIVES; ON ITS FACE, IT FORBIDS THE TRANSPORTATION OF

OBSCENE MATERIALS.  THUS, IT APPLIES TO NON-PUBLIC TRANSPORTATION

  IN THE ABSENCE OF A SPECIAL GOVERNMENTAL INTEREST.  THE STATUTE

  IS THUS OVERBROAD, IN VIOLATION OF THE FIRST AND NINTH

  AMENDMENTS, AND IS THEREFORE UNCONSTITUTIONAL."  338 F.SUPP. 
308,

  311 (WIS. 1970). 

UNDER THE VIEW EXPRESSED IN MY DISSENT TODAY IN PARIS ADULT THEATRE I
V. SLATON, ANTE, P. 73, IT IS CLEAR THAT THE STATUTE BEFORE US CANNOT
STAND.  WHATEVER THE EXTENT OF THE FEDERAL GOVERNMENT'S POWER TO BAR
THE DISTRIBUTION OF ALLEGEDLY OBSCENE MATERIAL TO JUVENILES OR THE
OFFENSIVE EXPOSURE OF SUCH MATERIAL TO UNCONSENTING ADULTS, THE STATUTE
BEFORE US IS CLEARLY OVERBROAD AND UNCONSTITUTIONAL ON ITS FACE. 

[[HC148'(ORIGINAL DOCUMENT PAGE 148)'  SEE MY DISSENT IN MILLER V.
CALIFORNIA, ANTE, P. 47.  I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE
DISTRICT COURT. 

SOLICITOR GENERAL GRISWOLD REARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE ACTING ASSISTANT ATTORNEY GENERAL
PETERSEN, JEROME M. FEIT, AND ROGER A. PAULEY.  R. KENT GREENAWALT
ARGUED THE CAUSE FOR THE UNITED STATES ON THE ORIGINAL ARGUMENT. 

JAMES M. SHELLOW REARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS JAMES A. WALRATH. 

MELVIN L. WULF AND JOEL M. GORA FILED A BRIEF FOR THE AMERICAN CIVIL
LIBERTIES UNION AN AMICUS CURIAE URGING AFFIRMANCE. 
..END :














COLGROVE V. BATTIN 413 U.S. 149 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT 

     NO. 71 - 1442.  ARGUED JANUARY 17, 1973--DECIDED JUNE 21,
1973; 456 F.2D 1379, AFFIRMED. 


    LOCAL FEDERAL COURT RULE PROVIDING THAT A JURY FOR FOR THE

  TRIAL OF CIVIL CASES SHALL CONSIST OF SIX PERSONS COMPORTS WITH

  THE SEVENTH AMENDMENT REQUIREMENT AND THE COEXTENSIVE STATUTORY

  REQUIREMENT OF 28 U.S.C. ^ 2072 THAT THE RIGHT OF TRIAL BY JURY

  BE PRESERVED IN SUITS AT COMMON LAW, AND IS NOT INCONSISTENT WITH

  FED. RULE CIV. PROC. 48 THAT DEALS ONLY WITH PARTIES'

  STIPULATIONS REGARDING JURY SIZE.  PP. 151 - 164. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, IN WHICH POWELL, J., JOINED, POST, P. 165. 
MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH STEWART, J., JOINED,
POST, P. 166.  POWELL, J., FILED A DISSENTING OPINION, POST, P. 188. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

LOCAL RULE 13 (D) (1) OF THE REVISED RULES OF PROCEDURE OF THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA PROVIDES THAT A JURY
FOR THE TRIAL OF CIVIL CASES SHALL CONSIST OF SIX PERSONS.  /1/ 

[[HC150'(ORIGINAL DOCUMENT PAGE 150)'  WHEN RESPONDENT DISTRICT
COURT JUDGE SET THIS DIVERSITY CASE FOR TRIAL BEFORE A JURY OF SIX IN
COMPLIANCE WITH THE RULE, PETITIONER SOUGHT MANDAMUS FROM THE COURT OF
APPEALS FOR THE NINTH CIRCUIT TO DIRECT RESPONDENT TO IMPANEL A 12
MEMBER JURY.  PETITIONER CONTENDED THAT THE LOCAL RULE (1), VIOLATED
THE SEVENTH AMENDMENT; /2/  (2) VIOLATED THE STATUTORY PROVISION, 28
U.S.C. ^ 2072, THAT RULES "SHALL PRESERVE THE RIGHT OF TRIAL BY JURY AS
AT COMMON LAW AND AS DECLARED BY THE SEVENTH AMENDMENT . . ."; /3/  AND
(3) WAS RENDERED INVALID BY FED. RULE CIV. PROC. 83 BECAUSE
"INCONSISTENT WITH" FED. RULE CIV. PROC. 48 THAT PROVIDES FOR JURIES OF
LESS THAN 12 WHEN STIPULATED BY THE PARTIES.  /4/ 

[[HC151'(ORIGINAL DOCUMENT PAGE 151)'  THE COURT OF APPEALS FOUND NO
MERIT IN THESE CONTENTIONS, SUSTAINED THE VALIDITY OF LOCAL RULE 13 (D)
(1), AND DENIED THE WRIT, 456 F.2D 1379 (1972).  WE GRANTED CERTIORARI,
409 U.S. 841 (1972).  WE AFFIRM. 

        I 

IN WILLIAMS V. FLORIDA, 399 U.S. 78 (1970), THE COURT SUSTAINED THE
CONSTITUTIONALITY OF A FLORIDA STATUTE PROVIDING FOR SIX-MEMBER JURIES
IN CERTAIN CRIMINAL CASES.  THE CONSTITUTIONAL CHALLENGE REJECTED IN
THAT CASE RELIED ON THE GUARANTEES OF JURY TRIAL SECURED THE ACCUSED BY
ART. III, ^ 2, CL. 3, OF THE CONSTITUTION AND BY THE SIXTH AMENDMENT. 
/5/ WE EXPRESSLY RESERVED, HOWEVER, THE QUESTION WHETHER "ADDITIONAL
REFERENCES TO THE 'COMMON LAW' THAT OCCUR IN THE SEVENTH AMENDMENT
MIGHT SUPPORT A DIFFERENT INTERPRETATION" WITH RESPECT TO JURY TRIAL IN
CIVIL CASES. 

[[HC152'(ORIGINAL DOCUMENT PAGE 152)'  ID., AT 92 N. 30.  WE
CONCLUDE THAT THEY DO NOT. 

THE PERTINENT WORDS OF THE SEVENTH AMENDMENT ARE:  "IN SUITS AT COMMON
LAW . . . THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED . . . . "  /6/
ON ITS FACE, THIS LANGUAGE IS NOT DIRECTED TO JURY CHARACTERISTICS,
SUCH AS SIZE, BUT RATHER DEFINES THE KIND OF CASES FOR WHICH JURY TRIAL
IS PRESERVED, NAMELY, "SUITS AS COMMON LAW."  AND WHILE IT IS TRUE THAT
"(WE HAVE ALMOST NO DIRECT EVIDENCE CONCERNING THE INTENTION OF THE
FRAMERS OF THE SEVENTH AMENDMENT ITSELF,"  /7/  THE HISTORICAL SETTING
IN WHICH THE SEVENTH AMENDMENT WAS ADOPTED HIGHLIGHTED A CONTROVERSY
THAT WAS GENERATED, NOT BY CONCERN FOR PRESERVATION OF JURY
CHARACTERISTICS AT COMMON LAW, BUT BY FEAR THAT THE CIVIL JURY ITSELF
WOULD BE ABOLISHED UNLESS PROTECTED IN EXPRESS WORDS.  ALMOST A CENTURY
AND A HALF AGO, THIS COURT RECOGNIZED THAT "(ONE OF THE STRONGEST
OBJECTIONS ORIGINALLY TAKEN AGAINST THE CONSTITUTION OF THE UNITED
STATES, WAS THE WANT OF AN EXPRESS PROVISION SECURING THE RIGHT OF
TRIAL BY JURY IN CIVIL CASES." 

[[HC153'(ORIGINAL DOCUMENT PAGE 153)'  PARSONS V. BEDFORD, 3 PET.
433, 445 (1830).  BUT THE OMISSION OF A PROTECTIVE CLAUSE FROM THE
CONSTITUTION WAS NOT BECAUSE AN EFFORT WAS NOT MADE TO INCLUDE ONE.  ON
THE CONTRARY, A PROPOSAL WAS MADE TO INCLUDE A PROVISION IN THE
CONSTITUTION TO GUARANTEE THE RIGHT OF TRIAL BY JURY IN CIVIL CASES BUT
THE PROPOSAL FAILED BECAUSE THE STATES VARIED WIDELY AS TO THE CASES IN
WHICH CIVIL JURY TRIAL WAS PROVIDED, AND THE PROPONENTS OF A CIVIL JURY
GUARANTEE FOUND TOO DIFFICULT THE TASK OF FASHIONING WORDS APPROPRIATE
TO COVER THE DIFFERENT STATE PRACTICES.  /8/  THE STRONG PRESSURES FOR
A CIVIL JURY PROVISION IN THE BILL OF RIGHTS ENCOUNTERED THE SAME
DIFFICULTY. 

[[HC154'(ORIGINAL DOCUMENT PAGE 154)'  THUS, IT WAS AGREED THAT,
WITH NO FEDERAL PRACTICE TO DRAW ON AND SINCE STATE PRACTICES VARIED SO
WIDELY, ANY COMPROMISING LANGUAGE WOULD NECESSARILY HAVE TO BE
GENERAL. 

[[HC155'(ORIGINAL DOCUMENT PAGE 155)'  AS A RESULT, ALTHOUGH THE
SEVENTH AMENDMENT ACHIEVED THE PRIMARY GOAL OF JURY TRIAL ADHERENTS TO
INCORPORATE AN EXPLICIT CONSTITUTIONAL PROTECTION OF THE RIGHT OF TRIAL
BY JURY IN CIVIL CASES, THE RIGHT WAS LIMITED IN GENERAL WORDS TO
"SUITS AT COMMON LAW."  /9/  WE CAN ONLY CONCLUDE, THEREFORE, THAT BY
REFERRING TO THE "COMMON LAW,"  THE FRAMERS OF THE SEVENTH AMENDMENT
WERE CONCERNED WITH PRESERVING THE RIGHT OF TRIAL BY JURY IN CIVIL
CASES WHERE IT EXISTED AT COMMON LAW, RATHER THAN THE VARIOUS INCIDENTS
OF TRIAL BY JURY.  /10/ 

[[HC156'(ORIGINAL DOCUMENT PAGE 156)'  IN SHORT, WHAT WAS SAID IN
WILLIAMS WITH RESPECT TO THE CRIMINAL JURY IS EQUALLY APPLICABLE HERE:
CONSTITUTIONAL HISTORY REVEALS NO INTENTION ON THE PART OF THE FRAMERS
"TO EQUATE THE CONSTITUTIONAL AND COMMON-LAW CHARACTERISTICS OF THE
JURY."  399 U.S., AT 99. 

CONSISTENTLY WITH THE HISTORICAL OBJECTIVE OF THE SEVENTH AMENDMENT,
OUR DECISIONS HAVE DEFINED THE JURY RIGHT PRESERVED IN CASES COVERED BY
THE AMENDMENT, AS "THE SUBSTANCE OF THE COMMON-LAW RIGHT OF TRIAL BY
JURY, AS DISTINGUISHED FROM MERE MATTERS OF FORM OR PROCEDURE . . . ." 
BALTIMORE & CAROLINA LINE, INC. V. REDMAN, 295 U.S. 654, 657 (1935). 
/11/  THE AMENDMENT, THEREFORE, DOES NOT "BIND THE FEDERAL COURTS TO
THE EXACT PROCEDURAL INCIDENTS OR DETAILS OF JURY TRIAL ACCORDING TO
THE COMMON LAW IN 1791," GALLOWAY V. UNITED STATES, 319 U.S. 372, 390
(1943); SEE ALSO EX PARTE PETERSON, 253 U.S. 300, 309 (1920); WALKER V.
NEW MEXICO & S. P. R. CO., 165 U.S. 593, 596 (1897), AND "(NEW DEVICES
MAY BE USED TO ADAPT THE ANCIENT INSTITUTION TO PRESENT NEEDS AND TO
MAKE OF IT AN EFFICIENT INSTRUMENT IN THE ADMINISTRATION OF JUSTICE.  .
. ."  EX PARTE PETERSON, SUPRA, AT 309 - 310; FUNK V. UNITED STATES,
290 U.S. 371, 382 (1933). 

OUR INQUIRY TURNS, THEN, TO WHETHER A JURY OF 12 IS OF THE SUBSTANCE
OF THE COMMON-LAW RIGHT OF TRIAL BY JURY.  KEEPING IN MIND THE PURPOSE
OF THE JURY TRIAL IN CRIMINAL CASES TO PREVENT GOVERNMENT OPPRESSION,
WILLIAMS, 399 U.S., AT 100, AND, IN CRIMINAL AND CIVIL CASES, TO ASSURE
A FAIR AND EQUITABLE RESOLUTION OF FACTUAL ISSUES, GASOLINE PRODUCTS
CO. V. CHAMPLIN CO., 283 U.S. 494, 498 (1931), THE QUESTION COMES DOWN
TO WHETHER JURY PERFORMANCE IS A FUNCTION OF JURY SIZE.  IN WILLIAMS,
WE REJECTED THE NOTION THAT "THE RELIABILITY OF THE JURY AS A
FACTFINDER . . . (IS) A FUNCTION OF ITS SIZE," 399 U.S., AT 100 - 101,
AND NOTHING HAS BEEN SUGGESTED TO LEAD US TO ALTER THAT CONCLUSION. 
ACCORDINGLY, WE THINK IT CANNOT BE SAID THAT 12 MEMBERS IS A
SUBSTANTIVE ASPECT OF THE RIGHT OF TRIAL BY JURY. 

IT IS TRUE, OF COURSE, THAT SEVERAL EARLIER DECISIONS OF THIS COURT
HAVE MADE THE STATEMENT THAT "TRIAL BY JURY" MEANS "A TRIAL BY A JURY
OF TWELVE . . . ."  CAPITAL TRACTION CO. V. HOF, 174 U.S. 1, 13 (1899);
SEE ALSO AMERICAN PUBLISHING CO. V. FISHER, 166 U.S. 464 (1897);
MAXWELL V. DOW, 176 U.S. 581, 586 (1900).  BUT IN EACH CASE, THE
REFERENCE TO "A JURY OF TWELVE" WAS CLEARLY DICTUM AND NOT A DECISION
UPON A QUESTION PRESENTED OR LITIGATED.  THUS, IN CAPITAL TRACTION CO.
V. HOF, SUPRA, THE CASE MOST OFTEN CITED, THE QUESTION PRESENTED WAS
WHETHER A CIVIL ACTION BROUGHT BEFORE A JUSTICE OF THE PEACE OF THE
DISTRICT OF COLUMBIA WAS TRIABLE BY JURY, AND THAT QUESTION TURNED ON
WHETHER THE JUSTICE OF THE PEACE WAS A JUDGE EMPOWERED TO INSTRUCT THEM
ON THE LAW AND ADVISE THEM ON THE FACTS. 

[[HC158'(ORIGINAL DOCUMENT PAGE 158)'  INSOFAR AS THE HOF STATEMENT
IMPLIED THAT THE SEVENTH AMENDMENT REQUIRED A JURY OF 12, IT WAS AT
BEST AN ASSUMPTION.  AND EVEN IF THAT ASSUMPTION HAD SUPPORT IN COMMON
LAW DOCTRINE, /12/  OUR CANVASS OF THE RELEVANT CONSTITUTIONAL HISTORY,
LIKE THE HISTORY CANVASSED IN WILLIAMS CONCERNING THE CRIMINAL JURY,
"CASTS CONSIDERABLE DOUBT ON THE EASY ASSUMPTION IN OUR PAST DECISIONS
THAT IF A GIVEN FEATURE EXISTED IN A JURY AT COMMON LAW . . . THEN IT
WAS NECESSARILY PRESERVED IN THE CONSTITUTION."  399 U.S., AT 92 - 93. 
WE CANNOT, THEREFORE, ACCORD THE UNSUPPORTED DICTA OF THESE EARLIER
DECISIONS THE AUTHORITY OF DECIDED PRECEDENTS.  /13/ 

THERE REMAINS, HOWEVER, THE QUESTION WHETHER A JURY OF SIX SATISFIES
THE SEVENTH AMENDMENT GUARANTEE OF "TRIAL BY JURY."  WE HAD NO
DIFFICULTY REACHING THE CONCLUSION IN WILLIAMS THAT A JURY OF SIX WOULD
GUARANTEE AN ACCUSED THE TRIAL BY JURY SECURED BY ART. III AND THE
SIXTH AMENDMENT.  SIGNIFICANTLY, OUR DETERMINATION THAT THERE WAS "NO
DISCERNIBLE DIFFERENCE BETWEEN THE RESULTS REACHED BY THE TWO DIFFERENT
SIZED JURIES," 399 U.S., AT 101, DREW LARGELY UPON THE RESULTS OF
STUDIES OF THE OPERATIONS OF JURIES OF SIX IN CIVIL CASES.  /14/  SINCE
THEN, MUCH HAS BEEN WRITTEN ABOUT THE SIX-MEMBER JURY, BUT NOTHING THAT
PERSUADES US TO DEPART FROM THE CONCLUSION REACHED IN WILLIAMS.  /15/ 

[[HC159'(ORIGINAL DOCUMENT PAGE 159)'  THUS, WHILE WE EXPRESS NO
VIEW AS TO WHETHER ANY NUMBER LESS THAN SIX WOULD SUFFICE, /16/  WE
CONCLUDE THAT A JURY OF SIX SATISFIES THE SEVENTH AMENDMENT'S GUARANTEE
OF TRIAL BY JURY IN CIVIL CASES.  /17/ 

[[HC160'(ORIGINAL DOCUMENT PAGE 160)'

II 

THE STATUTE, 28 U.S.C. ^ 2072, AUTHORIZES THIS COURT TO PROMULGATE
THE FEDERAL RULES OF CIVIL PROCEDURE BUT PROVIDES THAT "(SUCH RULES . .
. SHALL PRESERVE THE RIGHT OF TRIAL BY JURY AS AT COMMON LAW AND AS
DECLARED BY THE SEVENTH AMENDMENT TO THE CONSTITUTION."  /18/ 

[[HC161'(ORIGINAL DOCUMENT PAGE 161)'  PETITIONER ARGUES THAT IN
SECURING TRIAL BY JURY "AS AT COMMON LAW"  AND ALSO "AS DECLARED BY THE
SEVENTH AMENDMENT," CONGRESS MEANT TO PROVIDE A JURY HAVING THE
CHARACTERISTICS OF THE COMMON-LAW EVEN IF THE SEVENTH AMENDMENT DID NOT
REQUIRE A JURY WITH THOSE CHARACTERISTICS.  AS THE COURT OF APPEALS
OBSERVED, "(THIS WOULD INDEED BE A SWEEPING LIMITATION."  456 F.2D, AT
1380.  PETITIONER WOULD IMPUTE TO CONGRESS AN INTENTION TO SADDLE
ARCHAIC AND PRESENTLY UNWORKABLE COMMON-LAW PROCEDURES UPON THE FEDERAL
COURTS /19/  AND THEREBY TO NULLIFY INNOVATIVE CHANGES APPROVED BY THIS
COURT OVER THE YEARS THAT HAVE NOW BECOME COMMONPLACE AND, FOR ALL
PRACTICAL PURPOSES, "ESSENTIAL TO THE PRESERVATION OF THE RIGHT" OF
TRIAL BY JURY IN OUR MODERN SOCIETY. 

[[HC162'(ORIGINAL DOCUMENT PAGE 162)'  EX PARTE PETERSON, 253 U.S.,
AT 310; GALLOWAY V. UNITED STATES, 319 U.S., AT 390 - 391.  FOR TO SAY
THAT CONGRESS CHOSE THIS MEANS TO RENDER OUR SYSTEM OF CIVIL JURY TRIAL
IMMUTABLE AS OF 1791, OR SOME OTHER DATE, IS TO SAY THE CONGRESS MEANT
TO DENY THE JUDICIARY THE "FLEXIBILITY AND CAPACITY FOR GROWTH AND
ADAPTATION (WHICH) IS THE PECULIAR BOAST AND EXCELLENCE OF THE COMMON
LAW."  HURTADO V. CALIFORNIA, 110 U.S. 516, 530 (1884); FUNK V. UNITED
STATES, 290 U.S., AT 382. 

BUT PETITIONER'S EXTRAVAGANT CONTENTION HAS NOT THE SLIGHTEST
SUPPORT IN THE LEGISLATIVE HISTORY OF THE PROVISION.  SECTION 2072 IS
DERIVED FROM THE ENABLING ACT OF 1934, 48 STAT. 1064.  /20/  SECTION 2
OF THAT ACT GAVE THIS COURT THE "POWER TO UNITE THE GENERAL RULES
PRESCRIBED . . . FOR CASES IN EQUITY WITH THOSE IN ACTIONS AT LAW SO AS
TO SECURE ONE FORM OF CIVIL ACTION AND PROCEDURE FOR BOTH."  H. R. REP.
NO. 1829, 73D CONG., 2D SESS., 1 (1934).  AS EMPHASIZED BY THE COURT OF
APPEALS, THE LANGUAGE OF ^ 2 PRESERVING THE RIGHT OF TRIAL BY JURY WAS
INCLUDED "TO ASSURE THAT WITH SUCH UNION (OF LAW AND EQUITY) THE RIGHT
OF TRIAL BY JURY WOULD BE NEITHER EXPANDED NOR CONTRACTED."  456 F.2D,
AT 1381, CITING 5 J. MOORE, FEDERAL PRACTICE PARA. 38.06, P. 44 (2D ED.
1971).  SEE ALSO COOLEY V. STRICKLAND TRANSPORTATION CO., 459 F.2D 779,
785 (CA5 1972).  IN OTHER WORDS, CONGRESS USED THE LANGUAGE IN QUESTION
FOR THE SOLE PURPOSE OF CREATING A STATUTORY RIGHT COEXTENSIVE WITH
THAT UNDER THE SEVENTH AMENDMENT ITSELF.  /21/ 

[[HC163'(ORIGINAL DOCUMENT PAGE 163)'  IF CONGRESS HAD MEANT TO
PRESCRIBE A JURY NUMBER OR TO LEGISLATE COMMON-LAW FEATURES GENERALLY,
"IT KNEW HOW TO USE EXPRESS LANGUAGE TO THAT EFFECT."  WILLIAMS V.
FLORIDA, 399 U.S., AT 97. 

        III 

PETITIONER'S ARGUMENT THAT LOCAL RULE 13 (D) (1) /22/  IS
INCONSISTENT WITH FED. RULE CIV. PROC. 48 RESTS ON THE PROPOSITION THAT
THE RULE IMPLIES A DIRECTION TO IMPANEL A JURY OF 12 IN THE ABSENCE OF
A STIPULATION OF THE PARTIES FOR A LESSER NUMBER.  THE RULE WAS DRAFTED
AT THE TIME THE STATEMENT IN CAPITAL TRACTION CO. V. HOF, SUPRA, THAT
TRIAL BY JURY MEANS A "JURY OF TWELVE," WAS GENERALLY ACCEPTED. 
PLAINLY THE ASSUMPTION OF THE DRAFTSMEN THAT SUCH WAS THE CASE CANNOT
BE TRANSMUTED INTO AN IMPLIED DIRECTION TO IMPANEL JURIES OF 12 WITHOUT
REGARD TO WHETHER A JURY OF 12 WAS REQUIRED BY THE SEVENTH AMENDMENT. 
OUR CONCLUSION THAT THE HOF STATEMENT LACKS PRECEDENTIAL WEIGHT LEAVES
RULE 48 WITHOUT THE SUPPORT EVEN OF THE DRAFTSMEN'S ASSUMPTION AND THUS
THERE IS NOTHING IN THE RULE WITH WHICH THE LOCAL RULE IS
INCONSISTENT.  /23/  SEE COOLEY V. STRICKLAND TRANSPORTATION CO.,
SUPRA, AT 783 - 785; DEVITT, THE SIX MAN JURY IN THE FEDERAL COURT, 53
F. R. D. 273, 274 N. 1 (1971). 

[[HC164'(ORIGINAL DOCUMENT PAGE 164)' 

SIMILARLY, WE REJECT THE ARGUMENT THAT THE LOCAL RULE CONFLICTS WITH
RULE 48 BECAUSE IT DEPRIVES PETITIONER OF THE RIGHT TO STIPULATE TO A
JURY OF "ANY NUMBER LESS THAN TWELVE."  ASIDE FROM THE FACT THAT THERE
IS NO INDICATION IN THE RECORD THAT PETITIONER EVER SOUGHT A JURY OF
LESS THAN 12, RULE 48 "DEALS ONLY WITH A STIPULATION BY '(THE
PARTIES.'  IT DOES NOT PURPORT TO PREVENT COURT RULES WHICH PROVIDE FOR
CIVIL JURIES OF REDUCED SIZE."  COOLEY V. STRICKLAND TRANSPORTATION
CO., SUPRA, AT 784.                    AFFIRMED. 

/1/  RULE 13 (D) (1) PROVIDES: 

"A JURY FOR THE TRIAL OF CIVIL CASES SHALL CONSIST OF SIX PERSONS
PLUS SUCH ALTERNATE JURORS AS MAY BE IMPANELED."     SIMILAR LOCAL
RULES HAVE BEEN ADOPTED BY 54 OTHER FEDERAL DISTRICT COURTS, AT LEAST
AS TO SOME CIVIL CASES.  SEE THE APPENDIX TO FISHER, THE SEVENTH
AMENDMENT AND THE COMMON LAW:  NO MAGIC IN NUMBERS, 56 F. R. D. 507,
535 - 542 (1973) (THE DISTRICT COURT OF DELAWARE HAS SINCE ADOPTED A
RULE EFFECTIVE JANUARY 1, 1973).  IN ADDITION, TWO BILLS WERE
INTRODUCED IN THE 92D CONGRESS TO REDUCE TO SIX THE NUMBER OF JURORS IN
ALL FEDERAL CIVIL CASES.  H. R. 7800, 92D CONG., 1ST SESS. (1971); H.
R. 13496, 92D CONG., 2D SESS. (1972).  H. R. 7800, INSOFAR AS IT
RELATED TO CIVIL JURIES, HAS RECEIVED THE APPROVAL OF THE COMMITTEE ON
THE OPERATION OF THE JURY SYSTEM OF THE JUDICIAL CONFERENCE OF THE
UNITED STATES.  1971 ANNUAL REPORT OF THE DIRECTOR OF THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS 41.  THE CONFERENCE
ITSELF AT ITS MARCH 1971 MEETING ENDORSED "IN PRINCIPLE"  A REDUCTION
IN THE SIZE OF CIVIL JURIES.  IBID. 

/2/  THE SEVENTH AMENDMENT PROVIDES: 

"IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED
TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED, AND NO
FACT TRIED BY A JURY, SHALL BE OTHERWISE REEXAMINED IN ANY COURT OF THE
UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW." 

STATE COURT DECISIONS HAVE USUALLY TURNED ON THE INTERPRETATION OF
STATE CONSTITUTIONAL PROVISIONS.  SEE ANN., 47 A. L. R. 3D 895 (1973). 

/3/  TITLE 28 U.S.C. ^ 2072 PROVIDES: 

"THE SUPREME COURT SHALL HAVE THE POWER TO PRESCRIBE BY GENERAL
RULES, THE FORMS OF PROCESS, WRITS, PLEADINGS, AND MOTIONS, AND THE
PRACTICE AND PROCEDURE OF THE DISTRICT COURTS AND COURTS OF APPEALS OF
THE UNITED STATES IN CIVIL ACTIONS . . . . 

"SUCH RULES SHALL NOT ABRIDGE, ENLARGE OR MODIFY ANY SUBSTANTIVE
RIGHT AND SHALL PRESERVE THE RIGHT OF TRIAL BY JURY AS AT COMMON LAW
AND AS DECLARED BY THE SEVENTH AMENDMENT TO THE CONSTITUTION." 

/4/  FED. RULE CIV. PROC. 48 PROVIDES: 

"THE PARTIES MAY STIPULATE THAT THE JURY SHALL CONSIST OF ANY NUMBER
LESS THAN TWELVE OR THAT A VERDICT OR A FINDING OF A STATED MAJORITY OF
THE JURORS SHALL BE TAKEN AS THE VERDICT OF FINDING OF THE JURY." 

FED RULE CIV. PROC. 83 PROVIDES: 

"EACH DISTRICT COURT BY ACTION OF A MAJORITY OF THE JUDGES THEREOF
MAY FROM TIME TO TIME MAKE AND AMEND RULES GOVERNING ITS PRACTICE NOT
INCONSISTENT WITH THESE RULES.  . . . IN ALL CASES NOT PROVIDED FOR BY
RULE, THE DISTRICT COURTS MAY REGULATE THEIR PRACTICE IN ANY MANNER NOT
INCONSISTENT WITH THESE RULES." 

/5/  ART. III, ^ 2, CL. 3, PROVIDES: 

"THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE
BY JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID
CRIMES SHALL HAVE BEEN COMMITTED; BUT WHEN NOT COMMITTED WITHIN ANY
STATE, THE TRIAL SHALL BE AT SUCH PLACE OR PLACES AS THE CONGRESS MAY
BY LAW HAVE DIRECTED." 

THE SIXTH AMENDMENT PROVIDES: 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO
A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND
DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT
SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF
THE NATURE AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE
WITNESSES AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING
WITNESSES IN HIS FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENCE." 

/6/  THE REFERENCE TO "COMMON LAW" CONTAINED IN THE SECOND CLAUSE OF
THE SEVENTH AMENDMENT IS IRRELEVANT TO OUR PRESENT INQUIRY BECAUSE IT
DEALS EXCLUSIVELY WITH THE PROHIBITION CONTAINED IN THAT CLAUSE AGAINST
THE INDIRECT IMPAIRMENT OF THE RIGHT OF TRIAL BY JURY THROUGH JUDICIAL
RE-EXAMINATION OF FACTFINDINGS OF A JURY OTHER THAN AS PERMITTED IN
1791.  BALTIMORE & CAROLINA LINE, INC. V. REDMAN, 295 U.S. 654, 657
(1935); PARSONS V. BEDFORD, 3 PET. 433, 447 - 448 (1830); 5 J. MOORE,
FEDERAL PRACTICE PARA. 38.08 (5), PP. 86 - 90 (2D ED. 1971). 

/7/  HENDERSON, THE BACKGROUND OF THE SEVENTH AMENDMENT, 80 HARV. L.
REV. 289, 291 (1966). 

/8/  SEE 2 M. FARRAND, RECORDS OF THE FEDERAL CONVENTION 587
(1911).  SEE ALSO HENDERSON, SUPRA, N. 7, AT 292 - 294. 

THE QUESTION OF A PROVISION FOR THE PROTECTION OF THE RIGHT TO TRIAL
BY JURY IN CIVIL CASES APPARENTLY WAS NOT PRESENTED AT THE
CONSTITUTIONAL CONVENTION UNTIL A PROPOSED FINAL DRAFT OF THE
CONSTITUTION WAS REPORTED OUT OF THE COMMITTEE ON STYLE AND
ARRANGEMENT.  AT THAT POINT, MR. WILLIAMSON OF NORTH CAROLINA "OBSERVED
TO THE HOUSE THAT NO PROVISION WAS YET MADE FOR JURIES IN CIVIL CASES
AND SUGGESTED THE NECESSITY OF IT."  2 FERRAND, SUPRA, AT 587.  THIS
PROVOKED THE FOLLOWING DISCUSSION: 

"MR. GORHAM.  IT IS NOT POSSIBLE TO DISCRIMINATE EQUITY CASES FROM
THOSE IN WHICH JURIES ARE PROPER.  THE REPRESENTATIVES OF THE PEOPLE
MAY BE SAFELY TRUSTED IN THIS MATTER. 

"MR. GERRY URGED THE NECESSITY OF JURIES TO GUARD (AGAINST) CORRUPT
JUDGES.  HE PROPOSED THAT THE COMMITTEE LAST APPOINTED SHOULD BE
DIRECTED TO PROVIDE A CLAUSE FOR SECURING THE TRIAL BY JURIES. 

"COL. MASON PERCEIVED THE DIFFICULTY MENTIONED BY MR. GORHAM.  THE
JURY CASES CANNOT BE SPECIFIED.  A GENERAL PRINCIPLE LAID DOWN ON THIS
AND SOME OTHER POINTS WOULD BE SUFFICIENT.  HE WISHED THE PLAN HAD BEEN
PREFACED WITH A BILL OF RIGHTS, & WOULD SECOND A MOTION IF MADE FOR THE
PURPOSE . . . ."  IBID. 

THREE DAYS LATER, A PROPOSAL WAS MADE BY MR. GERRY AND MR. PINCKNEY
TO ADD THE FOLLOWING LANGUAGE TO THE ART. III GUARANTEE OF TRIAL BY
JURY IN CRIMINAL CASES:  "AND A TRIAL BY JURY SHALL BE PRESERVED AS
USUAL IN CIVIL CASES."  THIS PROPOSAL PROMPTED THE FOLLOWING REACTION: 

"MR. GORHAM.  THE CONSTITUTION OF JURIES IS DIFFERENT IN DIFFERENT
STATES AND THE TRIAL ITSELF IS USUAL IN DIFFERENT CASES IN DIFFERENT
STATES. 

"MR. KING URGED THE SAME OBJECTIONS. 

"GENL. PINCKNEY ALSO.  HE THOUGHT SUCH A CLAUSE IN THE CONSTITUTION
WOULD BE PREGNANT WITH EMBARASSMENTS. 

"THE MOTION WAS DISAGREED TO NEM.  CON."  ID., AT 628. 

JAMES WILSON OF PENNSYLVANIA DEFENDED THE OMISSION AT THE
PENNSYLVANIA CONVENTION CONVENED TO RATIFY THE CONSTITUTION: 

"THE CASES OPEN TO A JURY, DIFFERED IN THE DIFFERENT STATES; IT WAS
THEREFORE IMPRACTICABLE, ON THAT GROUND, TO HAVE MADE A GENERAL RULE. 
THE WANT OF UNIFORMITY WOULD HAVE RENDERED ANY REFERENCE TO THE
PRACTICE OF THE STATES IDLE AND USELESS:  AND IT COULD NOT, WITH ANY,
PROPRIETY, BE SAID, THAT 'THE TRIAL BY JURY SHALL BE AS HERETOFORE,'
SINCE THERE HAS NEVER EXISTED ANY FOEDERAL SYSTEM OF JURISPRUDENCE, TO
WHICH THE DECLARATION COULD RELATE.  BESIDES, IT IS NOT IN ALL CASES
THAT THE TRIAL BY JURY IS ADOPTED IN CIVIL QUESTIONS:  FOR CAUSES
DEPENDING IN COURTS OF ADMIRALTY, SUCH AS RELATE TO MARITIME CAPTURES,
AND SUCH AS ARE AGITATED IN THE COURTS OF EQUITY, DO NOT REQUIRE THE
INTERVENTION OF THAT TRIBUNAL.  HOW, THEN, WAS THE LINE OF
DISCRIMINATION TO BE DRAWN?  THE CONVENTION FOUND THE TASK TOO
DIFFICULT FOR THEM; AND THEY LEFT THE BUSINESS AS IT STANDS--IN THE
FULLEST CONFIDENCE, THAT NO DANGER WOULD POSSIBLY ENSUE, SINCE THE
PROCEEDINGS OF THE SUPREME COURT ARE TO BE REGULATED BY THE CONGRESS,
WHICH IS A FAITHFUL REPRESENTATION OF THE PEOPLE:  AND THE OPPRESSION
OF GOVERNMENT IS EFFECTUALLY BARRED, BY DECLARING THAT IN ALL CRIMINAL
CASES, THE TRIAL BY JURY SHALL BE PRESERVED."  3 M. FARRAND, RECORDS OF
THE FEDERAL CONVENTION 101 (1911). 

A PROPONENT OF A GUARANTEE RESPONDED: 

"THE SECOND AND MOST IMPORTANT OBJECTION TO THE FEDERAL PLAN, WHICH
MR. WILSON PRETENDS TO BE MADE IN A DISINGENUOUS FORM, IS THE ENTIRE
ABOLITION OF THE TRIAL BY JURY IN CIVIL CASES.  IT SEEMS TO ME THAT MR.
WILSON'S PRETENDED ANSWER IS MUCH MORE DISINGENUOUS THEN THE OBJECTION
ITSELF . . . . HE SAYS, 'THAT THE CASES OPEN TO TRIAL BY JURY DIFFERING
IN THE DIFFERENT STATES, IT WAS THEREFORE IMPRACTICABLE TO HAVE MADE A
GENERAL RULE.'  THIS ANSWER IS EXTREMELY FUTILE, BECAUSE A REFERENCE
MIGHT EASILY HAVE BEEN MADE TO THE COMMON LAW OF ENGLAND, WHICH OBTAINS
THROUGH EVERY STATE, AND CASES IN THE MARITIME AND CIVIL LAW COURTS
WOULD, OF COURSE, BE EXCEPTED.  . . ."  QUOTED IN HENDERSON, SUPRA, N.
7, AT 296 - 297.  SEE ALSO 1 J. ELLIOT, THE DEBATES IN THE SEVERAL
STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION (2D ED.
1836). 

/9/  THAT THE WORDS "COMMON LAW" WERE USED MERELY TO ESTABLISH A
GENERAL RULE OF TRIAL BY JURY IN CIVIL CASES WAS THE VIEW OF MR.
JUSTICE STORY IN THE DISCUSSION IN HIS COMMENTARIES OF THE SEVENTH
AMENDMENT AND THE JUDICIARY ACT OF 1789:  "THE PHRASE, 'COMMON LAW,'
FOUND IN THIS CLAUSE, IS USED IN CONTRADISTINCTION TO EQUITY, AND
ADMIRALTY, AND MARITIME JURISPRUDENCE.  THE CONSTITUTION HAD DECLARED,
IN THE THIRD ARTICLE, 'THAT THE JUDICIAL POWER SHALL EXTEND TO ALL
CASES IN LAW AND EQUITY ARISING UNDER THIS CONSTITUTION, THE LAWS OF
THE UNITED STATES, AND TREATIES MADE, OR WHICH SHALL BE MADE UNDER
THEIR AUTHORITY,' &C., AND 'TO ALL CASES OF ADMIRALTY AND MARITIME
JURISDICTION.'  IT IS WELL KNOWN, THAT IN CIVIL CAUSES, IN COURTS OF
EQUITY AND ADMIRALTY, JURIES DO NOT INTERVENE; AND THAT COURTS OF
EQUITY USE THE TRIAL BY JURY ONLY IN EXTRAORDINARY CASES TO INFORM THE
CONSCIENCE OF THE COURT.  WHEN, THEREFORE, WE FIND, THAT THE AMENDMENT
REQUIRES, THAT THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED IN SUITS
AT COMMON LAW, THE NATURAL CONCLUSION IS, THAT THE DISTINCTION WAS
PRESENT TO THE MINDS OF THE FRAMERS OF THE AMENDMENT.  BY COMMON LAW
THEY MEANT, WHAT THE CONSTITUTION DENOMINATED IN THE THIRD ARTICLE
'LAW'  . . . . AND CONGRESS SEEM TO HAVE ACTED WITH REFERENCE TO THIS
EXPOSITION IN THE JUDICIARY ACT OF 1789, CH. 20, (WHICH WAS
CONTEMPORANEOUS WITH THE PROPOSAL OF THIS AMENDMENT;) . . . ."  3 J.
STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 645 - 646
(1833). 

/10/  CONSTITUTIONAL HISTORY DOES NOT REVEAL A SINGLE INSTANCE WHERE
CONCERN WAS EXPRESSED FOR PRESERVATION OF THE TRADITIONAL NUMBER 12. 
INDEED, JAMES WILSON OF PENNSYLVANIA, A MEMBER OF THE CONSTITUTIONAL
CONGRESS AND LATER A JUSTICE OF THIS COURT, STATED:  "WHEN I SPEAK OF
JURIES, I FEEL NO PECULIAR PREDILECTION FOR THE NUMBER TWELVE . . . ." 
2 THE WORKS OF JAMES WILSON 503 (R. MC CLOSKEY ED. 1967). 

/11/  SEE ALSO SCOTT, TRIAL BY JURY AND THE REFORM OF CIVIL
PROCEDURE, 31 HARV. L. REV. 669, 671 (1918); 

"ALTHOUGH THE INCIDENTS OF TRIAL BY JURY WHICH EXISTED AT THE TIME
OF THE ADOPTION OF THE CONSTITUTIONAL GUARANTY ARE NOT THEREBY
ABOLISHED, YET THOSE INCIDENTS ARE NOT NECESSARILY MADE UNALTERABLE. 
ONLY THOSE INCIDENTS WHICH ARE REGARDED AS FUNDAMENTAL, AS INHERENT IN
AND OF THE ESSENCE OF THE SYSTEM OF TRIAL BY JURY, ARE PLACED BEYOND
THE REACH OF THE LEGISLATURE.  THE QUESTION OF THE CONSTITUTIONALITY OF
ANY PARTICULAR MODIFICATION OF THE LAW AS TO TRIAL BY JURY RESOLVES
ITSELF INTO A QUESTION OF WHAT REQUIREMENTS ARE FUNDAMENTAL AND WHAT
ARE UNESSENTIAL, A QUESTION WHICH IS NECESSARILY, IN THE LAST ANALYSIS,
ONE OF DEGREE.  THE QUESTION, IT IS SUBMITTED, SHOULD BE APPROACHED IN
A SPIRIT OF OPEN-MINDEDNESS, OF READINESS TO ACCEPT ANY CHANGES WHICH
DO NOT IMPAIR THE FUNDAMENTALS OF TRIAL BY JURY.  IT IS A QUESTION OF
SUBSTANCE, NOT OF FORM. 

/12/  ALTHOUGH WILLIAMS PROCEEDED ON THE PREMISE THAT THE COMMON-LAW
JURY WAS COMPOSED OF 12 MEMBERS, JURIES OF LESS THAN 12 WERE COMMON IN
THIS COUNTRY THROUGHOUT COLONIAL TIMES.  SEE THE CASES AND STATUTES
CITED IN FISHER, SUPRA, N. 1, AT 529 - 532. 

/13/  SEE DEVITT, THE SIX MAN JURY IN THE FEDERAL COURT, 53 F. R. D.
273, 274 (1971); AUGELLI, SIX-MEMBER JURIES IN CIVIL ACTIONS IN THE
FEDERAL JUDICIAL SYSTEM, 3 SETON HALL L. REV. 281, 285 (1972); CROAKE,
MEMORANDUM ON THE ADVISABILITY AND CONSTITUTIONALITY OF SIX MAN JURIES
AND 5/6 VERDICTS IN CIVIL CASES, 44 N. Y. STATE B. J. 385 (1972).  SEE
ALSO LEGER V. WESTINGHOUSE ELECTRIC CORP., 54 F. R. D. 574 (WD LA.
1972); CONTRA, WINSBY V. JOHN OSTER MFG. CO., 336 F.SUPP.  663 (WD PA.
1972). 

/14/  WILLIAMS V. FLORIDA, 399 U.S. 78, 101 N. 48 (1970). 

/15/  ARGUMENTS, PRO AND CON, ON THE EFFECTIVENESS OF A JURY OF SIX
COMPARED TO A JURY OF 12 WILL BE FOUND IN DEVITT, SUPRA, N. 13;
AUGELLI, SUPRA, N. 13; CROAKE, SUPRA, N. 13; FISHER, SUPRA, N. 1; BOGUE
& FRITZ, THE SIX MAN JURY, 17 S. D. L. REV. 285 (1972); MOSS, THE
TWELVE MEMBER JURY IN MASSACHUSETTS--CAN IT BE REDUCED?  56 MASS. L. Q.
65 (1971); ZEISEL, . . . AND THEN THERE WERE NONE:  THE DIMINUTION OF
THE FEDERAL JURY, 38 U. CHI.  L. REV. 710 (1971); ZEISEL, THE WANING OF
THE AMERICAN JURY, 58 A. B. A. J. 367 (1972); GIBBONS, THE NEW
MINIJURIES:  PENACEA OR PANDORA'S BOX?, 58 A. B. A. J. 594 (1972);
KAUFMAN, THE HARBINGERS OF JURY REFORM, 58 A. B. A. J. 695 (1972);
WHALEN, REMARKD ON RESOLUTION OF 7TH AMENDMENT JURY TRIAL REQUIREMENT,
54 F. R. D. 148 (1972); NOTE, RIGHT TO TWELVE-MAN JURY, 84 HARV. L.
REV. 165 (1970); NOTE, REDUCING THE SIZE OF JURIES, 5 U. MICH. J. L.
REFORM 87 (1971); NOTE, THE EFFECT OF JURY SIZE ON THE PROBABILITY OF
CONVICTION:  AN EVALUATION OF WILLIAMS V. FLORIDA, 22 CASE W. RES. L.
REV. 529 (1971); COMMENT, DEFENDANT'S RIGHT TO A JURY TRIAL--IS SIX
ENOUGH?, 59 KY. L. J. 997 (1971).     PROFESSOR ZEISEL HAS SUGGESTED
THAT THE SIX-MEMBER JURY IS MORE LIMITED THAN THE 12-MEMBER JURY IN
REPRESENTING THE FULL SPECTRUM OF THE COMMUNITY, AND THIS IN TURN MAY
RESULT IN DIFFERENCES BETWEEN THE VERDICTS REACHED BY THE TWO PANELS. 
ZEISEL, SUPRA, 38 U. CHI.  L. REV., AT 716 - 719. 

ON THE OTHER HAND, ONE STUDY SUGGESTS THAT THE DECREASE IN THE SIZE
OF THE JURY FROM 12 TO SIX IS CONDUCIVE TO A MORE OPEN DISCUSSION AMONG
THE JURORS, THEREBY IMPROVING THE QUALITY OF THE DELIBERATIVE PROCESS. 
NOTE, SUPRA, 5 U. MICH. J. L. REFORM, AT 99 - 106.  SEE ALSO C. JOINER,
CIVIL JUSTICE AND THE JURY 31, 83 (1962) (CONCLUDING PRIOR TO WILLIAMS
THAT THE DELIVERATIVE PROCESS SHOULD BE THE SAME IN EITHER SIX- OR 12
MEMBER JURIES).     IN ADDITION, FOUR VERY RECENT STUDIES HAVE PROVIDED
CONVINCING EMPIRICAL EVIDENCE OF THE CORRECTNESS OF THE WILLIAMS
CONCLUSION THAT "THERE IS NO DISCERNIBLE DIFFERENCE BETWEEN THE RESULTS
REACHED BY THE TWO DIFFERENT-SIZED JURIES."  NOTE, SIX-MEMBER AND
TWELVE-MEMBER JURIES:  AN EMPIRICAL STUDY OF TRIAL RESULTS, 6 U. MICH.
J. L. REFORM 671 (1973); INSTITUTE OF JUDICIAL ADMINISTRATION, A
COMPARISON OF SIX- AND TWELVE-MEMBER CIVIL JURIES IN NEW JERSEY
SUPERIOR AND COUNTY COURTS (1972); NOTE, AN EMPIRICAL STUDY OF SIX- AND
TWELVE-MEMBER JURY DECISION-MAKING PROCESSES, 6 U. MICH. J. L. REFORM
712 (1973); BERMANT & COPPOCK, OUTCOMES OF SIX- AND TWELVE-MEMBER JURY
TRIALS:  AN ANALYSIS OF 128 CIVIL CASES IN THE STATE OF WASHINGTON, 48
WASH. L. REV. 593 (1973). 

/16/  WHAT IS REQUIRED FOR A "JURY" IS A NUMBER LARGE ENOUGH TO
FACILITATE GROUP DELIBERATION COMBINED WITH A LIKELIHOOD OF OBTAINING A
REPRESENTATIVE CROSS SECTION OF THE COMMUNITY.  WILLIAMS V. FLORIDA,
399 U.S., AT 100.  IT IS UNDOUBTEDLY TRUE THAT AT SOME POINT THE NUMBER
BECOMES TOO SMALL TO ACCOMPLISH THESE GOALS, BUT, ON THE BASIS OF
PRESENTLY AVAILABLE DATA, THAT CANNOT BE CONCLUDED AS TO THE NUMBER
SIX.  SEE TAMM, A PROPOSAL FOR FIVE-MEMBER CIVIL JURIES IN THE FEDERAL
COURTS, 50 A. B. A. J. 162 (1964); TAMM, THE FIVE-MAN CIVIL JURY:  A
PROPOSED CONSTITUTIONAL AMENDMENT, 51 GEO. L. J. 120 (1962). 

/17/  MY BROTHER MARSHALL ARGUES IN DISSENT THAT THE VARIOUS
INCIDENTS OF TRIAL BY JURY AS THEY EXISTED AT COMMON LAW ARE IMMUTABLY
SAVED BY THE SEVENTH AMENDMENT'S USE OF THE WORD "PRESERVED."  BUT
OBVIOUSLY THE AMENDMENT COMMANDS ONLY THAT THE RIGHT OF TRIAL BY JURY
BE "PRESERVED."  SINCE A JURY OF 12 IS, AS HAS BEEN SHOWN, NOT OF THE
SUBSTANCE OF THE COMMON-LAW RIGHT OF TRIAL BY JURY AND SINCE THERE IS
"NO DISCERNIBLE DIFFERENCE BETWEEN THE RESULTS REACHED BY THE TWO
DIFFERENT-SIZED JURIES,"  WILLIAMS V. FLORIDA, 399 U.S., AT 101, THE
USE OF A SIX-MEMBER CIVIL JURY DOES NOT IMPAIR THE RIGHT "PRESERVED" BY
THE SEVENTH AMENDMENT.  INDEED, AS MY BROTHER MARSHALL HIMSELF
RECOGNIZES, POST, AT 179, SEVERAL DEVICES DESIGNED TO IMPROVE THE JURY
SYSTEM AND UNKNOWN TO THE COMMON LAW HAVE BEEN APPROVED BY THIS COURT
OVER THE YEARS.  SEE ALSO HENDERSON, SUPRA, N. 7; SCOTT, SUPRA, N. 11. 
IN EACH CASE, THE DETERMINING FACTOR WAS THAT THE NEW DEVICE DID NOT
IMPAIR THE RIGHT PRESERVED BY THE SEVENTH AMENDMENT.  AS MR. JUSTICE
BRANDEIS APTLY STATED IN RESPONSE TO THE ARGUMENT THAT A FEDERAL COURT
WAS PREVENTED BY THE SEVENTH AMENDMENT FROM UTILIZING A SPECIAL MASTER
BECAUSE IT WOULD INFRINGE UPON THE RIGHT OF TRIAL BY JURY:  "THE
COMMAND OF THE SEVENTH AMENDMENT THAT 'THE RIGHT OF TRIAL BY JURY SHALL
BE PRESERVED' . . . DOES NOT PROHIBIT THE INTRODUCTION OF NEW METHODS
FOR DETERMINING WHAT FACTS ARE ACTUALLY IN ISSUE, NOR DOES IT PROHIBIT
THE INTRODUCTION OF NEW RULES OF EVIDENCE.  CHANGES IN THESE MAY BE
MADE.  NEW DEVICES MAY BE USED TO ADAPT THE ANCIENT INSTITUTION TO
PRESENT NEEDS AND TO MAKE OF IT AN EFFICIENT INSTRUMENT IN THE
ADMINISTRATION OF JUSTICE.  INDEED, SUCH CHANGES ARE ESSENTIAL TO THE
PRESERVATION OF THE RIGHT.  THE LIMITATION INPOSED BY THE AMENDMENT IS
MERELY THAT ENJOYMENT OF THE RIGHT OF TRIAL BY JURY BE NOT OBSTRUCTED,
AND THAT THE ULTIMATE DETERMINATION OF ISSUES OF FACT BY THE JURY BE
NOT INTERFERED WITH."  EX PARTE PETERSON, 253 U.S. 300, 309 - 310
(1920). 

/18/  SECTION 2072 IS IN TERMS APPLICABLE ONLY TO THE GENERAL
FEDERAL RULES OF CIVIL PROCEDURE PRESCRIBED BY THIS COURT.  HOWEVER, 28
U.S.C. ^ 2071, WHICH AUTHORIZES FEDERAL DISTRICT COURTS TO PRESCRIBE
LOCAL RULES OF PRACTICE AND PROCEDURE, SEE PART III, INFRA, REQUIRES
SUCH RULES TO BE "CONSISTENT WITH ACTS OF CONGRESS" AS WELL AS THE
GENERAL FEDERAL RULES.  THUS, IF ^ 2072 PROHIBITS A JURY OF LESS THAN
12, THE LOCAL RULE IN QUESTION WOULD CONFLICT WITH AN ACT OF CONGRESS
AND WOULD THEREFORE BE INVALID.  SEE 3A W. BARRON & A. HOLTZOFF,
FEDERAL PRACTICE AND PROCEDURE ^ 1171, P. 179 (C. WRIGHT ED. 1958). 

/19/  SEE HENDERSON, SUPRA, N. 7; SCOTT, SUPRA, N. 11. 

/20/  SEE 5 J. MOORE, FEDERAL PRACTICE PARA. 38.06 (2D ED. 1971). 
THE PERTINENT PROVISIONS OF THE ENABLING ACT OF 1934 WERE CARRIED
FORWARD BY THE CODIFYING ACT OF 1948, 62 STAT. 961, AND LATER BECAME ^
2072 OF THE JUDICIAL CODE, 28 U.S.C. ^ 1 ET SEQ. SECTION 2072 HAS BEEN
AMENDED SEVERAL TIMES SINCE 1947, BUT NONE OF THE AMENDMENTS IS
RELEVANT TO OUR PRESENT DISCUSSION. 

/21/  CF. SIBBACH V. WILSON & CO., 312 U.S. 1, 10 (1941):  "THE
SECOND (PROVISO OF THE ENABLING ACT OF 1934) IS THAT IF THE RULES ARE
TO PRESCRIBE A SINGLE FORM OF ACTION FOR CASES AT LAW AND SUITS IN
EQUITY, THE CONSTITUTIONAL RIGHT TO JURY TRIAL INHERENT IN THE FORMER
MUST BE PERSERVED." 

/22/  THIS RULE WAS ADOPTED PURSUANT TO FED. RULE CIV. PROC. 83,
WHICH IN TURN IS DERVIED FROM 28 U.S.C. ^ 2071: 

"THE SUPREME COURT AND ALL COURTS ESTABLISHED BY ACT OF CONGRESS MAY
FROM TIME TO TIME PRESCRIBE RULES FOR THE CONDUCT OF THEIR BUSINESS. 
SUCH RULES SHALL BE CONSISTENT WITH ACTS OF CONGRESS AND RULES OF
PRACTICE AND PROCEDURE PRESCRIBED BY THE SUPREME COURT." 

/23/  AN AMICUS ARGUES THAT THE LOCAL RULE IS INVALID UNDER OUR
DECISION IN MINER V. ATLASS, 363 U.S. 641 (1960).  THAT ARGUMENT IS
MISPLACED.  MINER STRUCK DOWN A LOCAL RULE AUTHORIZING DISCOVERY
DEPOSITION PRACTICE IN ADMIRALTY CASES.  A COURT OF ADMIRALTY HAD NO
INHERENT POWER, INDEPENDENT OF STATUTE OR RULE, TO ORDER THE TAKING OF
DEPOSITIONS FOR THE PURPOSE OF DISCOVERY.  IN 1939, THIS COURT OMITTED
THIS "BASIC PROCEDURAL INNOVATION" FROM AMONG THE CIVIL RULES ADOPTED
AS PART OF THE ADMIRALTY RULES.  MINER HELD THAT THIS OMISSION "MUST BE
TAKEN AS AN ADVERTENT DECLINATION OF THE OPPORTUNITY TO INSTITUTE THE
DISCOVERY-DEPOSITION PROCEDURE OF CIVIL RULE 26 (A) THROUGHOUT COURTS
OF ADMIRALTY," ID., AT 648, AND THEREFORE, FOR THIS AND ADDITIONAL
REASONS STATED IN THE OPINION, THAT THE LOCAL RULE "IS NOT CONSISTENT
WITH THE PRESENT GENERAL ADMIRALTY RULES . . . ."  ID., AT 647.  IN
CONTRAST, WE HOLD IN THIS CASE THAT LOCAL RULE 13 (D) (1) IS NOT
INCONSISTENT WITH FED. RULE CIV. PROC. 48. 

AMICUS ALSO SUGGESTS THAT MINER SHOULD BE READ TO HOLD THAT ALL
"BASIC PROCEDURAL INNOVATIONS" ARE BEYOND LOCAL RULEMAKING POWER AND
ARE EXCLUSIVELY MATTERS FOR GENERAL RULEMAKING.  WE NEED NOT CONSIDER
THE SUGGESTION BECAUSE, IN ANY EVENT, WE CONCLUDE THAT THE REQUIREMENT
OF A SIX-MEMBER JURY IS NOT A "BASIC PROCEDURAL INNOVATION."  THE
"BASIC PROCEDURAL INNOVATIONS" TO WHICH MINER REFERRED ARE THOSE
ASPECTS OF THE LITIGATORY PROCESS WHICH BEAR UPON THE ULTIMATE OUTCOME
OF THE LITIGATION AND THUS, "THOUGH CONCEDEDLY A 'SUBSTANTIVE'
DOCTRINE . . . ."  363 U.S., AT 650.  SINCE THERE HAS BEEN SHOWN TO BE
"NO DISCERNIBLE DIFFERENCE BETWEEN THE RESULTS REACHED BY THE TWO
DIFFERENT-SIZED JURIES," WILLIAMS V. FLORIDA, SUPRA, AT 101 (SEE ALSO
N. 15, SUPRA), A REDUCTION IN THE SIZE OF THE CIVIL JURY FROM 12 TO SIX
PLAINLY DOES NOT BEAR ON THE ULTIMATE OUTCOME OF THE LITIGATION. 

[[DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE POWELL CONCURS,
DISSENTING. 

[[HC165'(ORIGINAL DOCUMENT PAGE 165)' 

RULE 13 (D) (1) OF THE REVISED RULES OF PROCEDURE OF THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA PROVIDES: 

     "A JURY FOR THE TRIAL OF CIVIL CASES SHALL CONSIST OF SIX
PERSONS . . . ." 

RULES 48 OF THE FEDERAL RULES OF CIVIL PROCEDURE--WHICH CAME INTO
BEING AS A RESULT OF A RECOMMENDATION OF THIS COURT TO CONGRESS WHICH
CONGRESS DID NOT REJECT /1/  --RESTS ON A FEDERAL STATUTE. 

THE TWO RULES DO NOT MESH; THEY COLLIDE.  RULE 48 SAYS THAT THE ONLY
WAY TO OBTAIN A TRIAL WITH LESS THAN 12 JURORS OR A VERDICT SHORT OF A
UNANIMOUS ONE IS BY STIPULATION. 

AS MR. JUSTICE MARSHALL MAKES CLEAR IN HIS DISSENT, WHILE THE
PARTIES UNDER RULE 48 COULD STIPULATE FOR TRIAL BY AN 11-MAN JURY. 
UNDER THE MONTANA DISTRICT COURT RULE ONLY SIX JURORS COULD BE
REQUIRED.  SINCE ALL APPARENTLY AGREE THAT THE FRAMERS OF RULE 48
PRESUMED THERE WOULD BE A JURY OF 12 IN THE ABSENCE OF STIPULATION, THE
ONLY AUTHORITY WHICH COULD REDUCE 12 TO SIX WOULD BE THE AUTHORITY THAT
CREATED RULE 48.  NEITHER WE NOR THE DISTRICT COURT, NOR THE JUDICIAL
CONFERENCE, NOR A CIRCUIT COURT COUNCIL HAS THE AUTHORITY TO MAKE THAT
CHANGE. 

WHETHER THE CHANGE, IF MADE, WOULD BE CONSTITUTIONAL IS A QUESTION I
THEREFORE DO NOT REACH. 

[[DFN 

/1/  AT THE TIME THE RULES OF CIVIL PROCEDURE BECAME EFFECTIVE THEY
HAD TO BE SUBMITTED TO CONGRESS BY THE COURT AND CONGRESS HAD 90 DAYS
TO REJECT THEM.  28 U.S.C. ^ 2072.  AT THAT TIME ^ 2072 PROVIDED THAT
THESE RULES "SHALL PRESERVE THE RIGHT OF TRIAL BY JURY AS AT COMMON LAW
AND AS DECLARED BY THE SEVENTH AMENDMENT TO THE CONSTITUTION."  IT
SEEMS CLEAR BEYOND PERADVENTURE THAT THE DRAFTSMEN THOUGHT A JURY OF 12
WAS REQUIRED, SAVE AS THE PARTIES BY STIPULATION WAIVED THAT RIGHT BY
STIPULATING TO A LESSER NUMBER. 

[[DOP 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE STEWART JOINS,
DISSENTING. 

[[HC166'(ORIGINAL DOCUMENT PAGE 166)' 

SOME 30 YEARS AGO, MR. JUSTICE BLACK WARNED HIS BRETHREN AGAINST THE
"GRADUAL PROCESS OF JUDICIAL EROSION WHICH . . . HAS SLOWLY WORN AWAY A
MAJOR PORTION OF THE ESSENTIAL GUARANTEE OF THE SEVENTH AMENDMENT." 
GALLOWAY V. UNITED STATES, 319 U.S. 372, 397 (1943) (DISSENTING
OPINION).  TODAY, THE EROSION PROCESS REACHES BEDROCK.  IN THE PAST,
THIS COURT HAS SANCTIONED CHANGES IN "MERE MATTERS OF FORM OR
PROCEDURE" IN JURY TRIALS, BALTIMORE & CAROLINA LINE, INC. V. REDMAN,
295 U.S. 654, 657 (1935), AND IN "PLEADING OR PRACTICE" BEFORE JURIES,
WALKER V. NEW MEXICO & S. P. R. CO., 165 U.S. 593, 596 (1897).  BUT
BEFORE TODAY, WE HAD ALWAYS INSISTED THAT "(WHATEVER MAY BE TRUE AS TO
LEGISLATION WHICH CHANGES ANY MERE DETAILS OF A JURY TRIAL, IT IS CLEAR
THAT A STATUTE WHICH DESTROYS (A) SUBSTANTIAL AND ESSENTIAL FEATURE
THEREOF IS ONE ABRIDGING THE RIGHT."  AMERICAN PUBLISHING CO. V.
FISHER, 166 U.S. 464, 468 (1897).  SEE ALSO DIMICK V. SCHIEDT, 293 U.S.
474 (1935); CAPITAL TRACTION CO. V. HOF, 174 U.S. 1 (1899). 

NOW, HOWEVER, MY BRETHREN MOUNT A FRONTAL ASSAULT ON THE VERY NATURE
OF THE CIVIL JURY AS THAT CONCEPT HAS BEEN UNDERSTOOD FOR SOME SEVEN
HUNDRED YEARS.  NO ONE NEED BE FOOLED BY REFERENCE TO THE SIX-MAN TRIER
OF FACT UTILIZED IN THE DISTRICT COURT FOR THE DISTRICT OF MONTANA AS A
"JURY."  THIS SIX-MAN MUTATION IS NO MORE A "JURY"  THAN THE PANEL OF
THREE JUDGES CONDEMNED IN BALDWIN V. NEW YORK, 399 U.S. 66 (1970), OR
THE 12 LAYMEN INSTRUCTED BY A JUSTICE OF THE PEACE OUTLAWED IN CAPITAL
TRACTION CO. V. HOF, SUPRA.  WE DEAL HERE NOT WITH SOME MINOR TINKERING
WITH THE ROLE OF THE CIVIL JURY, BUT WITH ITS WHOLESALE ABOLITION AND
REPLACEMENT WITH A DIFFERENT INSTITUTION WHICH FUNCTIONS DIFFERENTLY,
PRODUCES DIFFERENT RESULTS, /1/  AND WAS WHOLLY UNKNOWN TO THE FRAMERS
OF THE SEVENTH AMENDMENT.  /2/ 

[[HC167'(ORIGINAL DOCUMENT PAGE 167)' 

IN MY JUDGMENT, IF SUCH A RADICIAL RESTRUCTURING OF THE JUDICIAL
PROCESS IS DEEMED WISE OR NECESSARY, IT SHOULD BE ACCOMPLISHED BY
CONSTITUTIONAL AMENDMENT. 

[[HC168'(ORIGINAL DOCUMENT PAGE 168)'  SEE, E. G., TAMM, THE FIVE
MAN CIVIL JURY:  A PROPOSED CONSTITUTIONAL AMENDMENT, 51 GEO. L. J. 120
(1962).  IT APPEARS, HOWEVER, THAT THE COMMON-LAW JURY IS DESTINED TO
EXPIRE NOT WITH A BANG, BUT A WHIMPER.  THE PROPONENTS OF THE SIX-MAN
JURY HAVE NOT SECURED THE APPROVAL OF TWO-THIRDS OF BOTH HOUSES OF
CONGRESS AND THREE-FOURTHS OF THE STATE LEGISLATURES FOR THEIR
PROPOSAL.  INDEED, THEY HAVE NOT SECURED THE PASSAGE OF SIMPLE
LEGISLATION TO ACCOMPLISH THEIR GOAL.  INSTEAD, THEY HAVE RELIED UPON
THE INTERSTITIAL RULEMAKING POWER OF THE MAJORITY OF THE DISTRICT COURT
JUDGES SITTING IN A PARTICULAR DISTRICT TO REWRITE THE ANCIENT
DEFINITION OF A CIVIL JURY.  /3/  THEY HAVE DONE SO, MOREOVER, IN THE
TEETH OF AN ACT OF CONGRESS AND A FEDERAL RULE PROMULGATED BY THIS
COURT WHICH, IN MY JUDGMENT, WERE DESIGNED TO GUARANTEE THE 12-MAN
CIVIL JURY. 

[[HC169'(ORIGINAL DOCUMENT PAGE 169)'  BY APPROVING THIS MODE OF
PROCEDURE, THE COURT TURNS THE SO-CALLED "CLEAR STATEMENT" RULE ON ITS
HEAD.  INSTEAD OF REQUIRING A CLEAR STATEMENT FROM CONGRESS WHEN IT
LEGISLATES AT THE LIMIT OF ITS CONSTITUTIONAL POWERS, SEE, E. G.,
CROWELL V. BENSON, 285 U.S. 22, 62 (1932), MY BRETHREN APPROVE A
DEPARTURE FROM SETTLED CONSTITUTIONAL UNDERSTANDING DESPITE A CLEAR
STATEMENT FROM CONGRESS THAT IT INTENDED NO SUCH THING.  I MUST
RESPECTFULLY DISSENT. 

        I 

AT THE OUTSET, IT SHOULD BE NOTED THAT THE CONSTITUTIONAL ISSUE IN
THIS CASE IS NOT SETTLED BY THE PRIOR DECISIONS OF THIS COURT UPHOLDING
NONUNANIMOUS AND SIX-MAN CRIMINAL JURIES.  SEE APODACA V. OREGON, 406
U.S. 404 (1972); JOHNSON V. LOUISIANA, 406 U.S. 356 (1972); WILLIAMS V.
FLORIDA, 399 U.S. 78 (1970).  THIS IS TRUE FOR AT LEAST THREE REASONS. 

FIRST, APODACA, JOHNSON, AND WILLIAMS ALL INVOLVED STATE TRIALS AND
THEREFORE, THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT RATHER THAN THE
SIXTH.  THIS CASE IS, OF COURSE, DISTINGUISHABLE IN THAT IT DEALS WITH
A FEDERAL TRIAL AND, THEREFORE, WITH BILL OF RIGHTS GUARANTEES WHICH
ARE DIRECTLY APPLICABLE, RATHER THAN APPLICABLE ONLY THROUGH THE
INCORPORATION PROCESS.  /4/  THUS, NEITHER APODACA, JOHNSON, NOR
WILLIAMS SQUARELY PRESENTED THE COURT WITH THE PROBLEM OF DEFINING THE
MEANING OF JURY TRIAL IN A FEDERAL CONTEXT.  /5/  INDEED, AS MY BROTHER
POWELL'S CONCURRING OPINION IN APODACA AND JOHNSON MAKES PLAIN, THERE
WERE, AS OF LAST TERM AT LEAST, FIVE MEMBERS OF THIS COURT WHO THOUGHT
THAT THE SIXTH AMENDMENT REQUIRED UNANIMOUS JURY VERDICTS IN FEDERAL
CASES.     [[HC170'(ORIGINAL DOCUMENT PAGE 170)'  SEE ALSO JOHNSON V.
LOUISIANA, SUPRA, AT 395 (BRENNAN, J., DISSENTING).  MR. JUSTICE POWELL
ARGUED IN THAT OPINION THAT THE "PROCESS OF DETERMINING THE CONTENT OF
THE SIXTH AMENDMENT RIGHT TO JURY TRIAL HAS LONG BEEN ONE OF CAREFUL
EVALUATION OF, AND STRICT ADHERENCE TO THE LIMITATIONS ON, THAT RIGHT
AS IT WAS KNOWN IN CRIMINAL TRIALS AT COMMON LAW."  ID., AT 370 N. 6. 
HE CONCLUDED THAT THE SIXTH AMENDMENT REQUIRED UNANIMOUS FEDERAL JURIES
BECAUSE "(AT THE TIME THE BILL OF RIGHTS WAS ADOPTED, UNANIMITY HAD
LONG BEEN ESTABLISHED AS ONE OF THE ATTRIBUTES OF A JURY CONVICTION AT
COMMON LAW."  ID., AT 371.  SEE ALSO WILLIAMS V. FLORIDA, SUPRA, AT 123
- 125 (OPINION OF HARLAN, J.).  IT IS APPARENTLY UNCONTESTED THAT IN
1791, COMMON-LAW CIVIL JURIES CONSISTED OF 12 MEN.  SEE INFRA, AT 177. 
THUS, TO THE EXTENT THAT SIXTH AMENDMENT PRECEDENT IS APPLICABLE TO
SEVENTH AMENDMENT PROBLEMS, JOHNSON AND APODACA WOULD SEEM TO CUT
STRONGLY IN FAVOR OF A 12-MAN JURY REQUIREMENT IN FEDERAL COURT, RATHER
THAN AGAINST SUCH A REQUIREMENT. 

MOREOVER, EVEN IF IT IS ASSUMED THAT THE HOLDINGS IN APODACA,
WILLIAMS, AND JOHNSON ARE READILY TRANSFERABLE TO A FEDERAL CONTEXT, IT
STILL DOES NOT FOLLOW THAT THE DEFINITIONS OF TRIAL BY JURY FOR
PURPOSES OF THE SIXTH AND SEVENTH AMENDMENT ARE NECESSARILY
COEXTENSIVE.  THE TWO AMENDMENTS USE DIFFERENT LANGUAGE AND THEY
GUARANTEE DIFFERENT RIGHTS.  INDEED, AS THE WILLIAMS COURT ITSELF
RECOGNIZED, THE APPROVAL OF SIX-MAN JURIES IN CRIMINAL CASES DID NOT
RESOLVE "WHETHER, FOR EXAMPLE, ADDITIONAL REFERENCES TO THE 'COMMON
LAW' THAT OCCUR IN THE SEVENTH AMENDMENT MIGHT SUPPORT A DIFFERENT
INTERPRETATION."  399 U.S., AT 92 N. 30. 

[[HC171'(ORIGINAL DOCUMENT PAGE 171)' 

THE COURT TODAY GOES TO GREAT LENGTHS TO SHOW THAT THE REFERENCE IN
THE SEVENTH AMENDMENT TO "SUITS AT COMMON LAW" SPEAKS ONLY TO THE TYPE
OF SUIT IN WHICH A JURY IS REQUIRED, NOT TO THE TYPE OF JURY WHICH IS
REQUIRED IN SUCH SUITS.  HOWEVER, MY BRETHREN TOTALLY IGNORE ANOTHER
TEXTUAL DIFFERENCE BETWEEN THE SIXTH AND SEVENTH AMENDMENTS WHISH I
CONSIDER TO BE OF AT LEAST EQUAL SIGNIFICANCE.  WHEREAS THE SIXTH
AMENDMENT REFERS ONLY TO "AN IMPARTIAL JURY," THE SEVENTH AMENDMENT
STATES THAT "THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED"  (EMPHASIS
ADDED).  THE SEVENTH AMENDMENT'S ADDITIONAL REFERENCE TO THE
PRESERVATION OF THE RIGHT STRONGLY SUGGESTS THAT THE CONTENT OF THAT
RIGHT IS TO BE JUDGED BY HISTORICAL STANDARDS. 

CERTAINLY, THAT HAS BEEN THIS COURT'S UNDERSTANDING IN THE PAST.  IN
DIMICK V. SCHIEDT, FOR EXAMPLE, THE COURT HELD THAT THE SEVENTH
AMENDMENT "IN EFFECT ADOPTED THE RULES OF THE COMMON LAW, IN RESPECT OF
TRIAL BY JURY, AS THESE RULES EXISTED IN 1791," 293 U.S., AT 487, AND
THE DISSENT AGREED THAT THE PURPOSE OF THE SEVENTH AMENDMENT WAS "TO
PRESERVE THE ESSENTIALS OF THE JURY TRIAL AS IT WAS KNOWN TO THE COMMON
LAW BEFORE THE ADOPTION OF THE CONSTITUTION."  ID., AT 490.  IN
BALTIMORE & CAROLINA LINE, INC. V. REDMAN, THE COURT HELD THAT THE
"RIGHT OF TRIAL BY JURY THUS PRESERVED (BY THE SEVENTH AMENDMENT) IS
THE RIGHT WHICH EXISTED UNDER THE ENGLISH COMMON LAW WHEN THE AMENDMENT
WAS ADOPTED."  295 U.S., AT 657.  AND IN AMERICA PUBLISHING CO. V.
FISHER, THE COURT HELD THAT WHAT WAS GUARANTEED BY THE SEVENTH
AMENDMENT WAS "THE PECULIAR AND ESSENTIAL FEATURES OF TRIAL BY JURY AT
THE COMMON LAW."  166 U.S., AT 468.  IT SHOULD THEREFORE BE CLEAR THAT,
WHEREAS THE WORDS OF THE SIXTH AMENDMENT MIGHT BE READ AS PERMITTING A
FUNCTIONAL APPROACH WHICH MEASURES "SIXTH AMENDMENT VALUES," THE
SEVENTH AMENDMENT REQUIRES A HISTORICAL ANALYSIS GEARED TOWARD
DETERMINATION OF WHAT THE INSTITUTION WAS IN 1791 WHICH THE FRAMERS
INTENDED TO "PRESERVE." 

[[HC172'(ORIGINAL DOCUMENT PAGE 172)'  SEE ALSO SLOCUM V. NEW YORK
LIFE INS. CO., 228 U.S. 364 (1913); CAPITAL TRACTION CO. V. HOF, 174
U.S. 1 (1899). 

FINALLY, IT IS IMPORTANT TO NOTE THAT, WHEREAS THE LEGISLATIVE
HISTORY OF THE SIXTH AMENDMENT TENDED TO SUPPORT THE COURT'S DECISION
IN FAVOR OF SIX-MAN CRIMINAL JURIES, IT IS AS BEST AMBIGUOUS IN THE
SEVENTH AMENDMENT CONTEXT.  AS THE COURT POINTED OUT IN WILLIAMS, THE
SIXTH AMENDMENT AS ORIGINALLY INTRODUCED BY JAMES MADISON IN THE HOUSE
PROVIDED "(THE TRIAL OF ALL CRIMES . . . SHALL BE BY AN IMPARTIAL JURY
OF FREEHOLDERS OF THE VICINAGE, WITH THE REQUISITE OF UNANIMITY FOR
CONVICTION, OF THE RIGHT OF CHALLENGE, AND OTHER ACCUSTOMED
REQUISITES."  1 ANNALS OF CONG. 435 (1789) (EMPHASIS ADDED).  THE
AMENDMENT PASSED THE HOUSE IN THIS FORM, BUT WHEN IT REACHED THE
SENATE, THAT BODY EXPRESSLY REJECTED THE "ACCUSTOMED REQUISITES"
LANGUAGE, SEE SENATE JOURNAL, SEPT. 9, 1789, 1ST CONG., 1ST SESS., 77,
AND THE AMENDMENT AS ULTIMATELY ADOPTED CONTAINED NO REFERENCE TO THE
COMMON-LAW FEATURES OF JURY TRIAL. 

IN CONTRAST, THE HISTORY OF THE SEVENTH AMENDMENT CONTAINS NO
EXPRESS REJECTION OF LANGUAGE WHICH WOULD FIX THE COMMON-LAW ATTRIBUTES
OF THE CIVIL JURY.  INDEED, AS THE COURT ITSELF RECOGNIZES, THE EXTANT
HISTORY OF THE AMENDMENT IS EXCEEDINGLY SKETCHY.  SEE GENERALLY
HENDERSON, THE BACKGROUND OF THE SEVENTH AMENDMENT, 80 HARV. L. REV.
289 (1966).  UNDETERRED BY THE ABSENCE OF SOURCE MATERIAL, HOWEVER, BY
BRETHREN CONCOCT AN ELABORATE THEORY DESIGNED TO DEMONSTRATE THAT THE
FRAMERS DID NOT INTEND TO FIX THE NATURE OF THE CIVIL JURY AS IT
EXISTED AT COMMON LAW.  AS I READ THE MAJORITY OPINION, THE THEORY IS
BASED ON THE FOLLOWING SYLLOGISM: 

[[HC173'(ORIGINAL DOCUMENT PAGE 173)' 

1.  THE DELEGATES TO THE CONSTITUTIONAL CONVENTION CONSIDERED A
CLAUSE WHICH WOULD HAVE PROTECTED THE RIGHT TO A CIVIL JURY, BUT
DECLINED TO ADOPT SUCH A PROVISION BECAUSE STATE PRACTICE VARIED WIDELY
AS TO THE CASES IN WHICH A CIVIL JURY WAS PROVIDED. 

2.  WHEN THE SEVENTH AMENDMENT WAS PASSED, CONGRESS OVERRODE THE
ARGUMENTS OF THOSE OPPOSED TO A CONSTITUTIONAL JURY GUARANTEE AND
DECIDED TO PROVIDE A FEDERAL RIGHT OF JURY TRIAL DESPITE DIFFERENCES
BETWEEN THE STATES AS TO WHEN JURY RIGHTS ATTACHED. 

3.  THEREFORE, IN THE WORDS OF THE COURT "(WE CAN ONLY CONCLUDE . .
. THAT . . . THE FRAMERS OF THE SEVENTH AMENDMENT WERE CONCERNED WITH
PRESERVING THE RIGHT OF TRIAL BY JURY IN CIVIL CASES WHERE IT EXISTED
AT COMMON LAW, RATHER THAN THE VARIOUS INCIDENTS OF TRIAL BY JURY." 

IT HARDLY REQUIRES DEMONSTRATION THAT THIS "LOGIC" RESTS ON THE
FLIMSIEST OF INFERENCES.  IT SIMPLY DOES NOT FOLLOW THAT BECAUSE THE
AMENDMENT WAS, AT ONE STAGE REJECTED BECAUSE OF DISPARITIES AMONG THE
STATES IN THE INSTANCES IN WHICH THE JURY RIGHT ATTACHED, ITS SCOPE IS
THEREFORE LIMITED TO THE SURMOUNTING OF THESE DISPARITIES.  INDEED, THE
OPPOSITE CONCLUSION IS EQUALLY PLAUSIBLE.  ONE COULD ARGUE THAT,
WHEREAS THERE WAS DISPUTE AS TO THE CASES IN WHICH THE JURY-TRIAL RIGHT
WOULD ATTACH, IT WAS COMMON GROUND BETWEEN OPPONENTS AND PROPONENTS OF
THE MEASURE THAT WHEN IT DID ATTACH, ITS INCIDENTS WOULD BE AS AT
COMMON LAW.  THUS, WHATEVER THE MEANING OF THE AMENDMENT AS TO JURY
USAGE, THE NATURE OF THE JURY IS, BY THIS ARGUMENT, AT ITS CORE AND
AGREED TO BY ALL PARTIES. 

MOREOVER, EVEN IF THE COURT'S CHAIN OF REASONING WERE CORRECT, THE
ARGUMENT WOULD STILL FALL, SINCE IT IS GROUNDED ON A FACULTY MAJOR
PREMISE.  TRUE, THE OPPONENETS OF A JURY GUARANTEE AT THE
CONSTITUTIONAL CONVENTION RESTED THEIR ARGUMENT IN PART ON THE VARYING
PRACTICE IN THE STATES AS TO THE CASES IN WHICH THE RIGHT OF JURY TRIAL
ATTACHED. 

[[HC174'(ORIGINAL DOCUMENT PAGE 174)' BUT A MORE DETAILED
EXAMINATION OF THE DEBATES THAN THE COURT'S HIGHLY SELECTIVE QUOTATIONS
PERMIT MAKES CLEAR THAT THE OPPONENTS ALSO RESTED ON THE DIFFERENCES IN
THE CHARACTERISTICS OF JURY TRIAL BETWEEN THE STATES.  THUS, WHEN A
JURY GUARANTEE WAS FIRST PROPOSED, MR. GORHAM, ONE OF THE PRINCIPAL
DRAFTERS OF THE CONSTITUTION, ARGUED AGAINST THE PROPOSAL, STATING:
"IT IS NOT POSSIBLE TO DISCRIMINATE EQUITY CASES FROM THOSE IN WHICH
JURIES ARE PROPER.  THE REPRESENTATIVES OF THE PEOPLE MAY BE SAFELY
TRUSTED IN THIS MATTER."  2 M. FARRAND, RECORDS OF THE FEDERAL
CONVENTION 587 (1911) (HEREINAFTER CITED AS FARRAND).  BUT WHEN THE
PROPOSAL CAME TO A FINAL VOTE, MR. GORHAM MADE A SOMEWHAT DIFFERENT
ARGUMENT:  "THE CONSTITUTION OF JURIES IS DIFFERENT IN DIFFERENT
STATES."  ID., AT 628 (EMPHASIS ADDED).  SIMILARLY, WHILE AT ONE STAGE
JAMES WILSON DEFENDED THE ABSENCE OF A JURY REQUIREMENT ON THE GROUND
THAT "(THE CASES OPEN TO A JURY, DIFFERED IN DIFFERENT STATES," 3
FARRAND 101, HE ALSO MADE A QUITE DIFFERENT ARGUMENT: 

     "BY THE CONSTITUTION OF THE DIFFERENT STATES, IT WILL BE FOUND

  THAT NO PARTICULAR MODE OF TRIAL BY JURY COULD BE DISCOVERED THAT

  WOULD SUIT THEM ALL.  THE MANNER OF SUMMONING JURORS, THEIR

  QUALIFICATIONS, OF WHOM THEY SHOULD CONSIST, AND THE COURSE OF

  THEIR PROCEEDINGS, ARE ALL DIFFERENT, IN THE DIFFERENT STATES;

  AND I PRESUME IT WILL BE ALLOWED A GOOD GENERAL PRINCIPLE, THAT

  IN CARRYING INTO EFFECT THE LAWS OF THE GENERAL GOVERNMENT BY THE

  JUDICIAL DEPARTMENT, IT WILL BE PROPER TO MAKE THE REGULATIONS AS

  AGREEABLE TO THE HABITS AND WISHES OF THE PARTICULAR STATES AS

  POSSIBLE; AND IT IS EASILY DISCOVERED THAT IT WOULD HAVE BEEN

  IMPRACTICABLE, BY ANY GENERAL REGULATION, TO HAVE GIVEN

  SATISFACTION TO ALL.  3 FARRAND 164. 

THUS, IT IS CLEAR THAT OPPONENTS OF A JURY GUARANTEE WERE CONCERNED
NOT ONLY WITH THE DIFFERING RULES FOR WHEN JURIES WERE REQUIRED AMONG
THE STATES, BUT ALSO WITH THE DIFFERING CONTENT OF THE JURY RIGHT
ITSELF.  /6/ 

[[HC175'(ORIGINAL DOCUMENT PAGE 175)'  TO THE EXTENT THAT ANYTHING
AT ALL CAN BE INFERRED FROM THE REJECTION OF THESE ARGUMENTS, IT
FOLLOWS BY THE COURT'S OWN CHAIN OF REASONING THAT THE FRAMERS INTENDED
TO OVERRIDE STATE DIFFERENCES AS TO BOTH THE CASES IN WHICH A JURY
RIGHT WOULD ATTACH AND THE CHARACTERISTICS OF THE JURY ITSELF. 

I SHOULD HASTEN TO ADD THAT I DO NOT MEAN TO EMBRACE THAT CHAIN OF
REASONING.  IN FACT, AS INDICATED ABOVE, I VIEW THE LEGISLATIVE HISTORY
AS FAR TOO FRAGMENTARY TO SUPPORT ANY FIRM CONCLUSION.  BUT I WOULD
HAVE THOUGHT THAT THE VERY UNCERTAINTY OF THE LEGISLATIVE HISTORY WOULD
SUPPORT A MODE OF ANALYSIS WHICH LOOKED TO THE JURY AS IT EXISTED AT
THE TIME THE SEVENTH AMENDMENT WAS WRITTEN IN ORDER TO DETERMINE THE
INTENT OF THE FRAMERS.  AS MR. JUSTICE HARLAN ARGUED: 

"(IT IS COMMON SENSE AND NOT MERELY THE BLESSING OF THE FRAMERS THAT
EXPLAINS THIS COURT'S FREQUENT REMINDERS THAT:  "THE INTERPRETATION OF
THE CONSTITUTION OF THE UNITED STATES IS NECESSARILY INFLUENCED BY THE
FACT THAT ITS PROVISIONS ARE FRAMED IN THE LANGUAGE OF THE ENGLISH
COMMON LAW, AND ARE TO BE READ IN THE LIGHT OF ITS HISTORY.'  SMITH V.
ALABAMA, 124 U.S. 465, 478 (1888). 

[[HC176'(ORIGINAL DOCUMENT PAGE 176)'

  THIS PROPOSITION WAS AGAIN PUT FORWARD BY MR. JUSTICE GRAY
SPEAKING FOR THE COURT IN UNITED

  STATES V. WONG KIM ARK, 169 U.S. 649 (1898), WHERE THE COURT WAS
CALLED UPON TO DEFINE THE

  TERM 'CITIZEN' AS USED IN THE CONSTITUTION.  "THE CONSTITUTION
NOWHERE DEFINES THE MEANING OF

  THESE WORDS (THE CITIZENSHIP CLAUSE) . . . . IN THIS, AS IN OTHER
RESPECTS, IT MUST BE

  INTERPRETED IN THE LIGHT OF THE COMMON LAW, THE PRINCIPLES AND
HISTORY OF WHICH WERE

  FAMILIARLY KNOWN TO THE FRAMERS OF THE CONSTITUTION.'  169 U.S.,
AT 654.  HISTORY CONTINUES TO

 BE A WELLSPRING OF CONSTITUTIONAL INTERPRETATION.  INDEED, HISTORY
WAS EVEN INVOKED BY THE

  COURT IN SUCH DECISIONS AS TOWNSEND V. SAIN, 372 U.S. 293 (1963),
AND FAY V. NOIA, 372

  U.S. 391 (1963), WHERE IT PURPORTED TO INTERPRET THE
CONSTITUTIONAL PROVISION FOR HABEAS

  CORPUS ACCORDING TO THE 'HISTORIC CONCEPTION OF THE WRIT' AND
TOOK NOTE THAT THE GUARANTEE WAS

  ONE ROOTED IN COMMON LAW AND SHOULD BE SO INTERPRETED.  CF.
UNITED STATES V. BROWN, 381

  U.S. 437, 458 (1965)."  WILLIAMS V. FLORIDA, 399 U.S., AT 123 -
124. 

WHEN A HISTORICAL APPROACH IS APPLIED TO THE ISSUE AT HAND, IT
CANNOT BE DOUBTED THAT THE FRAMERS ENVISIONED A JURY OF 12 WHEN THEY
REFERRED TO TRIAL BY JURY.  IT IS TRUE THAT THE TIME THE SEVENTH
AMENDMENT WAS ADOPTED, JURY USAGE DIFFERED IN SEVERAL RESPECTS AMONG
THE STATES.  SEE GENERALLY HENDERSON, THE BACKGROUND OF THE SEVENTH
AMENDMENT, 80 HARV. L. REV. 289 (1966).  BUT, FOR THE MOST PART AT
LEAST, THESE DIFFERENCES DID NOT EXTEND TO JURY SIZE WHICH SEEMS TO
HAVE BEEN UNIFORM AND, INDEED, HAD REMAINED SO FOR CENTURIES.  ONE
AUTHORITY HAS NOTED THAT AS EARLY AS 1164, THE CONSTITUTIONS OF
CLARENDON PROVIDED THAT "WHERE, IN THE CASE OF A LAYMAN SO RICH AND
POWERFUL THAT NO INDIVIDUAL DARES TO APPEAR AGAINST HIM 'THE SHERIFF
SHALL CAUSE TWELVE LEGAL MEN OF THE NEIGHBOURHOOD, OR OF THE VILL, TO
TAKE AN OATH IN THE PRESENCE OF THE BISHOP THAT THEY WILL DECLARE THE
TRUTH ABOUT IT.'" 

[[HC177'(ORIGINAL DOCUMENT PAGE 177)'  WELLS, THE ORIGIN OF THE
PETIT JURY, 27 L. Q. REV. 347 (1911).  AS PROFESSOR SCOTT WROTE, "AT
THE BEGINNING OF THE THIRTEENTH CENTURY TWELVE WAS INDEED THE USUAL BUT
NOT THE INVARIABLE NUMBER.  BUT BY THE MIDDLE OF THE FOURTEENTH CENTURY
THE REQUIREMENT OF TWELVE HAD PROBABLY BECOME DEFINITELY FIXED.  INDEED
THIS NUMBER FINALLY CAME TO BE REGARDED WITH SOMETHING LIKE
SUPERSTITIOUS REVERENCE."  A. SCOTT, FUNDAMENTALS OF PROCEDURE IN
ACTIONS AT LAW 75 - 76 (1922) (FOOTNOTES OMITTED).  SEE ALSO 1 W.
HOLDSWORTH, A HISTORY OF THE ENGLISH LAW 324 - 325 (7TH ED. 1956). 
TO BE SURE, NOT EVERY ELEMENT OF ENGLISH COMMON LAW WAS CARRIED OVER
WITHOUT CHANGE IN THE COLONIES.  IN THE CASE OF JURY TRIAL, HOWEVER,
"IN GENERAL THIS VENERABLE AND HIGHLY POPULAR INSTITUTION WAS ADOPTED
IN THE COLONIES IN ITS ENGLISH FORM AT A EARLY DATE."  REINSCH, THE
ENGLISH COMMON LAW IN THE EARLY AMERICAN COLONIES, IN 1 SELECT ESSAYS
IN ANGLO-AMERICAN LEGAL HISTORY 412 (1907).  AS THE COURT CONCLUDED IN
WILLIAMS V. FLORIDA, "(THE STATES THAT HAD ADOPTED CONSTITUTIONS BY THE
TIME OF THE PHILADELPHIA CONVENTION IN 1787 APPEAR FOR THE MOST PART TO
HAVE EITHER EXPLICITLY PROVIDED THAT THE JURY WOULD CONSIST OF 12, SEE
VA. CONST. OF 1776, ^ 8, IN 7 F. THORPE, FEDERAL AND STATE
CONSTITUTIONS 3813 (1909), OR TO HAVE SUBSEQUENTLY INTERPRETED THEIR
JURY TRIAL PROVISIONS TO INCLUDE THAT REQUIREMENT."  399 U.S., AT 98 -
99, N. 45.  /7/ 

ON THE BASIS OF THIS HISTORICAL RECORD, THIS COURT HAS MORE THAN
ONCE CONCLUDED THAT THE SEVENTH AMENDMENT GUARANTEES THE PRESERVATION
OF 12-MAN JURIES. 

[[HC178'(ORIGINAL DOCUMENT PAGE 178)' 

AS THE COURT, SPEAKING THROUGH MR. JUSTICE GRAY, SAID IN CAPITAL
TRACTION CO. V. HOF, 

     "'TRIAL BY JURY,' IN THE PRIMARY AND USUAL SENSE OF THE TERM
AT

  THE COMMON LAW AND IN THE AMERICAN CONSTITUTIONS, IS . . . A

  TRIAL BY A JURY OF TWELVE MEN BEFORE AN OFFICER VESTED WITH

  AUTHORITY TO CAUSE THEM TO BE SUMMONED AND EMPANELLED, TO

  ADMINISTER OATHS TO THEM AND TO THE CONSTABLE IN CHARGE, AND TO

  ENTER JUDGMENT AND ISSUE EXECUTION ON THEIR VERDICT . . . . 

[[HC179'(ORIGINAL DOCUMENT PAGE 179)'

  THIS PROPOSITION HAS BEEN SO GENERALLY ADMITTED, AND SO SELDOM
CONTESTED, THAT THERE HAS BEEN

  LITTLE OCCASSION FOR ITS DISTINCT ASSERTION.  YET THERE ARE
UNEQUIVOCAL STATEMENTS OT IT TO BE

  FOUND IN THE BOOKS."  174 U.S., AT 13 - 14.  CF. PATTON V. UNITED
STATES, 281 U.S. 276 (1930); MAXWELL V. DOW, 176 U.S. 581 (1900);
AMERICAN PUBLISHING CO. V. FISHER, 166 U.S. 464 (1897); SPRINGVILLE V.
THOMAS, 166 U.S. 707 (1897). 

THE COURT TODAY ELECTS TO ABANDON THE CERTAINTY OF THIS HISTORICAL
TEST, AS WELL AS THE MANY CASES WHICH SUPPORT IT, IN FAVOR OF A VAGUELY
DEFINED FUNCTIONAL ANALYSIS WHICH ASKS NOT WHAT THE FRAMERS MEANT BY
"TRIAL BY JURY" BUT RATHER SOME SUBSTITUTE FOR THE COMMON-LAW JURY
PERFORMS THE SAME FUNCTIONS AS A JURY AND SERVES AS AN ADEQUATE
SUBSTITUTE FOR ONE.  IT IS TRUE THAT SOME OF OUR PRIOR CASES SUPPORT A
FUNCTIONAL APPROACH TO AN EVALUATION OF PROCEDURAL INNOVATIONS WHICH
SURROUND JURY TRIALS.  THE COURT HAS IN THE PAST UPHELD SUCH DEVICES AS
JURY INTERROGATORIES AND REPORTS OF SPECIAL MASTERS AS NOT INTERFERING
WITH THE FUNCTIONING OF A COMMON-LAW JURY.  SEE, E. G., EX PARTE
PETERSON, 253 U.S. 300 (1920); WALKER V. NEW MEXICO, & S. P. R. CO.,
165 U.S. 593 (1897).  BUT SEE DIMICK V. SCHIEDT, 293 U.S. 474 (1935). 
BUT I KNOW OF NO PRIOR CASE WHICH HAS UTILIZED A FUNCTIONAL ANALYSIS TO
EVALUATE THE VERY COMPOSITION OF THE CIVIL JURY. 

I SUBMIT THAT THE REASON FOR THE ABSENCE OF SUCH CASES DERIVES FROM
THE INHERENT NATURE OF THE PROBLEM.  IT IS POSSIBLE TO DETERMINE IN A
PRINCIPLED FASHION WHETHER THE APPURTENANCES WHICH SURROUND A JURY
INTERFERE WITH THE ESSENTIAL FUNCTIONING OF THAT INSTITUTION.  ONE CAN
EVALUATE WHETHER ADDITUR, FOR EXAMPLE, OR DIRECTED VERDICTS INTERFERE
WITH THE JURY'S ROLE AS IT EXISTED AT COMMON LAW. 

[[HC180'(ORIGINAL DOCUMENT PAGE 180)'  SEE, E. G., GALLOWAY V.
UNITED STATES, 319 U.S. 372 (1943); DIMICK V. SCHIEDT, SUPRA.  BUT THE
COMPOSITION OF THE JURY ITSELF IS A MATTER OF ARBITRARY, A PRIORI
DEFINITION.  AS MR. JUSTICE HARLAN ARGUED "(THE RIGHT TO A TRIAL BY
JURY . . . HAS NO ENDURING MEANING APART FROM HISTORICAL FORM." 
WILLIAMS V. FLORIDA, 399 U.S., AT 125 (SEPARATE OPINION). 

IT IS SENSELESS, THEN, TO SAY THAT A PANEL OF SIX CONSTITUTES A
"JURY" WITHOUT FIRST DEFINING WHAT ONE MEANS BY A JURY, AND THAT
INITIAL DEFINITION MUST, IN THE NATURE OF THINGS, BE ARBITRARY.  ONE
COULD, OF COURSE, DEFINE THE TERM "JURY" AS BEING A BODY OF SIX OR MORE
LAYMEN.  BUT THE LINE BETWEEN FIVE AND SIX WOULD THEN BE JUST AS
ARBITRARY AS THE LINE BETWEEN 11 AND 12.  THERE IS NO WAY BY REFERENCE
TO ABSTRACT PRINCIPLE OR "FUNCTION" THAT ONE CAN DETERMINE THAT SIX IS
"ENOUGH," FIVE IS "TOO SMALL," AND 20 "TOO LARGE."  /8/  THESE
EVALUATIONS CAN ONLY BE MADE BY REFERENCE TO A HYPOTHETICAL IDEAL JURY
OF SOME ARBITRARILY CHOSEN SIZE.  ALL ONE CAN SAY IS THAT A JURY OF SIX
FUNCTIONS LESS LIKE A JURY OF 12 THAN WOULD A JURY OF, SAY EIGHT, BUT
MORE LIKE A JURY OF 12 THAN WOULD A JURY OF THREE.  /9/ 

[[HC181'(ORIGINAL DOCUMENT PAGE 181)'  ALTHOUGH I THINK IT CLEAR
THAT MY BRETHREN WOULD REJECT, FOR EXAMPLE, A JURY OF ONE, THE COURT
DOES NOT BEGIN TO TELL US HOW IT WOULD GO ABOUT DRAWING A LINE IN A
NONARBITRARY FASHION, AND IT IS OBVIOUS THAT IN MATTERS OF DEGREE OF
THIS KIND, NONARBITRARY LINE DRAWING IS A LOGICAL IMPOSSIBILITY. 

OF COURSE, THERE IS NOTHING INTRINSICALLY WRONG WITH DRAWING
ARBITRARY LINES AND, INDEED, AS ARGUED ABOVE, IN ORDER TO RESOLVE
CERTAIN PROBLEMS THEY ARE ESSENTIAL.  THUS, THIS COURT HAS NOT
HESITATED IN THE PAST TO RELY ON ARBITRARY DEMARCATIONS IN CASES WHERE
CONSTITUTIONAL RIGHTS DEPEND ON MATTERS OF DEGREE.  SEE, E. G., BURNS
V. FORTSON, 410 U.S. 686 (1973).  BUT IN CASES WHERE ARBITRARY LINES
ARE NECESSARY, I WOULD HAVE THOUGHT IT MORE CONSONANT WITH OUR LIMITED
ROLE IN A CONSTITUTIONAL DEMOCRACY TO DRAW THEM WITH REFERENCE TO THE
FIXED BOUNDS OF THE CONSTITUTION RATHER THAN ON A WHOLLY AD HOC BASIS. 

I THINK HISTORY WILL BEAR OUT THE PROPOSITION THAT WHEN
CONSTITUTIONAL RIGHTS ARE GROUNDED IN NOTHING MORE SOLID THAN THE
INTUITIVE, UNEXPLAINED SENSE OF FIVE JUSTICES THAT A CERTAIN LINE IS
"RIGHT" OR "JUST", THOSE RIGHTS ARE CERTAIN TO ERODE AND, EVENTUALLY,
DISAPPEAR ALTOGETHER.  TODAY, A MAJORITY OF THIS COURT MAY FIND SIX-MAN
JURIES TO REPRESENT A PROPER BALANCE BETWEEN COMPETING DEMANDS OF
EXPEDITION AND GROUP REPRESENTATION.  BUT AS DOCKETS BECOME MORE
CROWDED AND PRESSURES ON JURY TRIALS GROW, WHO IS TO SAY THAT SOME
FUTURE COURT WILL NOT FIND THREE, OR TWO, OR ONE A NUMBER LARGE ENOUGH
TO SATISFY ITS UNEXPLICATED SENSE OF JUSTICE?  IT SHOULD BE CLEAR THAT
CONSTITUTIONAL RIGHTS WHICH ARE SO VULNERABLE TO PRESSURES OF THE
MOMENT ARE NOT REALLY PROTECTED BY THE CONSTITUTION AT ALL. 

[[HC182'(ORIGINAL DOCUMENT PAGE 182)'  AS MR. JUSTICE BLACK NEVER
TIRED OF ARGUING, "THE ACCORDION-LIKE QUALITIES OF THIS PHILOSOPHY MUST
INEVITABLY IMPERIL ALL THE INDIVIDUAL LIBERTY SAFEGUARDS SPECIFICALLY
ENUMERATED IN THE BILL OF RIGHTS."  ROCHIN V. CALIFORNIA, 342 U.S. 165,
177 (1952) (BLACK, J., CONCURRING).  SEE ALSO DUNCAN B. LOUISIANA, 391
U.S. 145, 169 (1968) (BLACK, J., CONCURRING). 

SINCE SOME DEFINITION OF "JURY" MUST BE CHOSEN, I WOULD THEREFORE
RELY ON THE FIXED BOUNDS OF HISTORY WHICH THE FRAMERS, BY DRAFTING THE
SEVENTH AMENDMENT, MEANT TO "PRESERVE."  I AGREE WITH MR. JUSTICE
POWELL'S OBSERVATION IN THE SIXTH AMENDMENT CONTEXT THAT DETERMINING
THE CONTENT OF THE RIGHT TO JURY TRIAL SHOULD INVOLVE A "CAREFUL
EVALUATION OF, AND STRICT ADHERENCE TO THE LIMITATIONS ON, THAT RIGHT
AS IT WAS KNOWN . . . AT COMMON LAW."  JOHNSON V. LOUISIANA, 406 U.S.,
AT 370 N. 6 (SEPARATE OPINION).  IT MAY WELL BE THAT THE NUMBER 12 IS
NO MORE THAN A "HISTORICAL ACCIDENT" AND IS "WHOLLY WITHOUT
SIGNIFICANCE 'EXCEPT TO MYSTICS.'"  WILLIAMS V. FLORIDA, SUPRA, AT
102.  BUT SURELY THERE IS NOTHING MORE SIGNIFICANT ABOUT THE NUMBER
SIX, OR THREE, OR ONE.  THE LINE MUST BE DRAWN SOMEWHERE, AND THE
DIFFERENCE BETWEEN DRAWING IT IN THE LIGHT OF HISTORY AND DRAWING IT ON
AN AD HOC BASIS IS, ULTIMATELY, THE DIFFERENCE BETWEEN INTERPRETING A
CONSTITUTION AND MAKING IT UP AS ONE GOES ALONG. 

        II 

THE ARBITRARY NATURE OF THE LINE WHICH MUST BE DRAWN IN DETERMINING
PERMISSIBLE JURY SIZE HIGHLIGHTS ANOTHER ANOMALY IN THE COURT'S
OPINION.  NORMALLY, IN OUR SYSTEM WE LEAVE THE INEVITABLE PROCESS OF
ARBITRARY LINE DRAWING TO THE LEGISLATIVE BRANCH, WHICH IS FAR BETTER
EQUIPPED TO MAKE AD HOC COMPROMISES.  IN THE PAST, WE HAVE THEREFORE
GIVEN GREAT DEFERENCE TO LEGISLATIVE DECISIONS IN CASES WHERE THE LINE
MUST BE DRAWN SOMEWHERE AND CANNOT BE PRECISELY DELINEATED BY REFERENCE
TO PRINCIPLE. 

[[HC183'(ORIGINAL DOCUMENT PAGE 183)'  THIS COURT HAS INVOLVED
ITSELF IN THE STICKY BUSINESS OF SEPARATING CASES ALONG A CONTINUUM
ONLY WHEN THE CONSTITUTION CLEARLY COMPELS IT TO DO SO AND WHEN THE
LEGISLATURE HAS PLAINLY DEFAULTED. 

TODAY, THE COURT TURNS THIS PRACTICE INSIDE OUT.  IT REJECTS WHAT I
TAKE TO BE A CLEARLY ARTICULATED LEGISLATIVE DECISION--A DECISION,
INCIDENTALLY, WHICH IS FULLY CONSONANT WITH CONSTITUTIONAL REQUIREMENTS
- IN ORDER TO DRAW ITS OWN ARBITRARY LINE.  IT DOES SO, MOREOVER,
WITHOUT ANY EXPLANATION FOR WHY IT FINDS THE LEGISLATIVE DETERMINATION
UNSATISFACTORY AND, INDEED, WITH BARELY ANY EXPLANATION AT ALL. 

        A 

TITLE 28 U.S.C. ^ 2072 REQUIRES THAT THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THIS COURT "SHALL PRESERVE THE RIGHT OF TRIAL BY JURY AS
AT COMMON LAW AND AS DECLARED BY THE SEVENTH AMENDMENT TO THE
CONSTITUTION."  AS THE COURT RECOGNIZES, THIS REQUIREMENT IS MADE
APPLICABLE TO LOCAL RULES OF PROCEDURE BY 28 U.S.C. ^ 2071, WHICH
REQUIRES THAT "(SUCH RULES SHALL BE CONSISTENT WITH ACTS OF CONGRESS
AND RULES OF PRACTICE AND PROCEDURE PRESCRIBED BY THE SUPREME COURT. 

THE COURT'S TREATMENT OF THIS STATUTORY REQUIREMENT IS, TO SAY THE
LEAST, PECULIAR.  WHEN EXPLICATING THE SEVENTH AMENDMENT, MY BRETHREN
HOLD THAT THE FRAMERS INTENDED TO GOVERN ONLY THE TYPES OF TRIALS IN
WHICH THE JURY RIGHT ATTACHES RATHER THAN TO FIX THE COMMON-LAW
CHARACTERISTICS OF THE JURY.  THEIR REASON FOR REACHING THIS CONCLUSION
IS THAT THE SEVENTH AMENDMENT, BY ITS TERMS, GUARANTEES THE RIGHT TO A
JURY TRIAL "(IN SUITS AT COMMON LAW" AND NOT AS IT EXISTED AT COMMON
LAW.  THIS LANGUAGE, THE COURT SAYS, "IS NOT DIRECTED TO JURY
CHARACTERISTICS, SUCH AS SIZE, BUT RATHER DEFINES THE KIND OF CASES FOR
WHICH JURY TRIAL IS PRESERVED, NAMELY, 'SUITS AT COMMON LAW.'" 

[[HC184'(ORIGINAL DOCUMENT PAGE 184)'  ANTE, AT 152.  THIS ARGUMENT
FROM THE LANGUAGE OF THE SEVENTH AMENDMENT IS FAIR ENOUGH, ALTHOUGH FOR
THE REASONS GIVEN IN THE PRECEDING SECTION, I FIND IT ULTIMATELY
UNPERSUASIVE.  BUT WHAT, THEN, ARE WE TO SAY WHEN INTERPRETING A
PROVISION WHICH GUARANTEES JURY TRIALS, NOT "IN SUITS AT COMMON LAW,"
BUT "AS AT COMMON LAW"?  BY THE COURT'S OWN REASONING, IT WOULD SEEM
THAT THIS PHRASE SHOULD BE READ TO GUARANTEE THE PRESERVATION OF JURY
CHARACTERISTICS AS THEY EXISTED AT COMMON LAW. 

UNINHIBITED BY THE SEEMING RESTRAINTS OF ITS OWN LOGIC, HOWEVER, MY
BRETHREN PROCEED TO READ THIS PHRASE TO PRESERVE JURIES IN CASES TRIED
AT COMMON LAW IN THE FACE OF THE MERGER OF LAW AND EQUITY.  BUT IF WE
ARE AGAIN TO TAKE THE COURT AT ITS OWN WORD, THIS IS PRECISELY THE
RESULT ACHIEVED BY THE SEVENTH AMENDMENT OF ITS OWN FORCE.  THERE IS,
OF COURSE, A WELL-RECOGNIZED CANON OF CONSTRUCTION WHICH REQUIRES
COURTS TO READ STATUTORY PROVISIONS SO THAT, WHEN POSSIBLE, NO PART OF
THE STATUTE IS SUPERFLUOUS.  SEE, E. G., 2 J. SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION ^ 4705 (3D ED. 1943), AND CASES CITED THEREIN. 
YET THE COURT'S READING OF THIS STATUTE CREATES NOT JUST A REDUNDANCY,
BUT A DOUBLE REDUNDANCY.  IF THE FRAMERS OF ^ 2072 HAD INTENDED MERELY
TO PRESERVE JURY TRIALS IN CASES AT COMMON LAW, THEN NO STATUTE AT ALL
WOULD HAVE BEEN NECESSARY SINCE, AS THE COURT RECOGNIZES, THE SEVENTH
AMENDMENT BY ITSELF IS SUFFICIENT TO ACCOMPLISH THIS PURPOSE.  YET
CONGRESS NOT ONLY PASSED A STATUTE--IT ADOPTED A PROVISION SECURING
TRIAL BY JURY BOTH "AS DECLARED BY THE SEVENTH AMENDMENT" AND "AS AT
COMMON LAW."  IF ONE ACCEPTS FOR THE MOMENT THE COURT'S PREMISE THAT
THE SEVENTH AMENDMENT PRESERVES ONLY THE RIGHT TO JURIES IN COMMON-LAW
CASES, CONGRESS' ADDITION OF THE PHRASE "AS AT COMMON LAW" IS
EXPLICABLE ONLY IF THE LEGISLATURE ALSO INTENDED TO PROTECT JURY
CHARACTERISTICS FROM CHANGE. 

[[HC185'(ORIGINAL DOCUMENT PAGE 185)' 

MY BRETHREN CHOSE TO REJECT THIS CLEAR MEANING OF THE STATUTE AND TO
READ IT INSTEAD IN A MANNER WHICH NOT ONLY MAKES IT REDUNDANT BUT ALSO,
AS DEMONSTRATED IN THE PREVIOUS SECTION, RAISES THE GRAVEST
CONSTITUTIONAL QUESTIONS.  YET THE ONLY ARGUMENT I CAN DISCERN FOR
REACHING THIS RESULT IS THE COURT'S STATED RELUCTANCE TO "SADDLE
ARCHAIC AND PRESENTLY UNWORKABLE COMMON-LAW PROCEDURES THOUGHT IT OUR
FUNCTION TO DETERMINE WHICH STATUTORY REQUIREMENTS ARE "ARCHAIC" AND
"UNWORKABLE" AND TO ENFORCE ONLY THOSE WHICH WE FIND TO BE EFFICIENT
AND UP TO DATE.  THE COURT ASSERTS THAT "(IF CONGRESS HAD MEANT TO
PRESCRIBE . . . COMMON-LAW FEATURES (FOR JURIES) . . . 'IT KNEW HOW TO
USE EXPRESS LANGUAGE TO THAT EFFECT.'"  BUT I, FOR ONE, WOULD BE HARD
PRESSED TO THINK OF LANGUAGE WHICH MORE EXPRESSLY GUARANTEES THE JURY'S
COMMON-LAW FEATURES THAN THE STATEMENT THAT THE RIGHT OF TRIAL BY JURY
SHALL BE PRESERVED "AS AT COMMON LAW."  SO LONG AS THIS IS THE COMMAND
OF CONGRESS, I HAD THOUGHT IT OUR DUTY TO OBEY, NO MATTER HOW "ARCHAIC"
AND "UNWORKABLE" THE STATUTORY REQUIREMENT. 

        B 

NOR IS THE STATUTE THE END OF THE MATTER.  FED. RULE CIV. PROC. 48
PROVIDES IN RELEVANT PART THAT "(THE PARTIES MAY STIPULATE THAT THE
JURY SHALL CONSIST OF ANY NUMBER LESS THAN TWELVE."  IT HARDLY NEED BE
DEMONSTRATED THAT THIS PROVISION IS FLATLY INCONSISTENT WITH LOCAL RULE
13 (D) (1).  THE NUMBER 11, FOR EXAMPLE, FALLS WITHIN THE CLASS OF "ANY
NUMBER LESS THAN TWELVE," SO THAT RULE 48 REQUIRES THAT THE PARTIES BE
PERMITTED TO STIPULATE TO A JURY OF 11.  YET THE LOCAL RULE, WHICH
REQUIRES THAT "(A) JURY FOR THE TRIAL OF CIVIL CASES SHALL CONSIST OF
SIX PERSONS" CLEARLY WOULD NOT PERMIT A JURY OF 11, EVEN IF THE PARTIES
STIPULATED TO SUCH A JURY. 

[[HC186'(ORIGINAL DOCUMENT PAGE 186)'     THE COURT'S CONTENTION
THAT RULE 48 (DEALS ONLY WITH A STIPULATION BY '(THE PARTIES'" AND
"DOES NOT PURPORT TO PREVENT COURT RULES WHICH PROVIDE FOR CIVIL JURIES
OF REDUCED SIZE," ANTE, AT 164, THEREFORE PASSES MY UNDERSTANDING.  IT
IS TRUE ENOUGH THAT RULE 48 DEALS WITH STIPULATIONS BY THE PARTIES, BUT
IT EXPRESSLY SAYS THAT THE COURT RULES MUST PERMIT SUCH STIPULATIONS SO
LONG AS THE NUMBER STIPULATED IS "ANY NUMBER LESS THAN TWELVE."  SINCE
THE NUMBERS SEVEN THROUGH 11 ARE NUMBERS LESS THAN 12, AND SINCE THE
LOCAL RULE DOES NOT PERMIT STIPULATIONS OF THESE NUMBERS, THE TWO RULES
ARE IN CONFLICT AND THE LOCAL RULE MUST THEREFORE FALL.  SEE 28 U.S.C.
^ 2071; FED. RULE CIV. PROC. 83.     OF COURSE, RULE 48 DOES NOT ON ITS
FACE GUARANTEE A JURY OF 12.  THAT FUNCTION IS ARGUABLY PERFORMED BY
RULE 38 (A) WHICH PROVIDES THAT "(THE RIGHT OF TRIAL BY JURY AS
DECLARED BY THE SEVENTH AMENDMENT TO THE CONSTITUTION OR AS GIVEN BY A
STATUTE OF THE UNITED STATES SHALL BE PERSERVED TO THE PARTIES
INVIOLATE."  BUT AS THE COURT ITSELF RECOGNIZES, THE FRAMERS OF RULE 48
CLEARLY PRESUPPOSED A JURY OF 12 IN THE ABSENCE OF STIPULATION. 
INDEED, THERE IS NO WAY TO MAKE SENSE OF A PROVISION WHICH PERMITS
STIPULATIONS OF ANY NUMBER LESS THAN 12 UNLESS ONE ASSUMES THAT IN THE
ABSENCE OF A STIPULATION, THE JURY WOULD CONSIST OF 12.  I AM THUS ONCE
AGAIN AT A LOSS TO UNDERSTAND WHY THE COURT STRAINS TO ESCAPE THE PLAIN
INTENTION OF THE RULE'S DRAFTERS IN ORDER TO WRESTLE WITH GRAVE
CONSTITUTIONAL QUESTIONS THAT COULD EASILY HAVE BEEN AVOIDED. 

        III 

IT MIGHT APPEAR TO SOME ANOMALOUS AFTER WILLIAMS TO HOLD THAT 12-MAN
CIVIL JURIES ARE CONSTITUTIONALLY REQUIRED IN FEDERAL CASES.  AS JUDGE
WILSON HAS ARGUED, "(WHATEVER ONE CONSIDERS THE ROLE OF A CIVIL JURY
AND WHATEVER IMPORTANCE ATTACHES TO THAT ROLE, . . . NO ONE HAS EVER
CONTENDED THAT THE FUNCTION OF THE CIVIL JURY IS MORE IMPORTANT THAN
THAT OF THE CRIMINAL JURY." 

[[HC187'(ORIGINAL DOCUMENT PAGE 187)'  COOLEY V. STRICKLAND
TRANSPORTATION CO., 459 F.2D 779, 781 (1972). 

THERE IS, OF COURSE, FORCE TO THAT POINT AND A CERTAIN RUDIMENTARY
LOGIC TO THE PROPOSITION THAT IF A MAN IS ENTITLED TO A JURY OF ONLY
SIX WHEN HIS VERY LIBERTY IS AT STAKE, HE SHOULD NOT BE ENTITLED TO
MORE WHEN MERE PROPERTY HANGS IN THE BALANCE.  BUT OUR FUNCTION IS
LIMITED TO INTERPRETING THE CONSTITUTION.  WE ARE NOT EMPOWERED TO
DECIDE AS A MATTER OF POLICY THE CASES IN WHICH 12-MAN JURIES SHOULD BE
GUARANTEED.  AS ARGUED ABOVE, OUR PRIOR DECISION ON JURY SIZE AROSE IN
THE STATE CONTEXT AND INVOLVED INTERPRETATION OF A DIFFERENT
CONSTITUTIONAL PROVISION.  THAT DECISION SIMPLY DOES NOT REQUIRE THAT
WE APPROVE SIX-MAN FEDERAL JURIES IN CIVIL CASES.  AS MR. JUSTICE
SUTHERLAND OBSERVED ALMOST 40 YEARS AGO WHEN THE COMMON-LAW JURY WAS
UNDER ATTACK FROM A DIFFERENT SOURCE, "THIS COURT IN A VERY SPECIAL
SENSE IS CHARGED WITH THE DUTY OF CONSTRUING AND UPHOLDING THE
CONSTITUTION; AND IN THE DISCHARGE OF THAT IMPORTANT DUTY, IT EVER MUST
BE ALERT TO SEE THAT A DOUBTFUL PRECEDENT BE NOT EXTENDED BY MERE
ANALOGY TO A DIFFERENT CASE IF THE RESULT WILL BE TO WEAKEN OR SUBVERT
WHAT IT CONCEIVES TO BE A PRINCIPLE OF THE FUNDAMENTAL LAW OF THE
LAND."  DIMICK V. SCHIEDT, 293 U.S., AT 485. 

I FIND THAT RESPONSE DISPOSITIVE.  THE CONSTITUTION IS, IN THE END,
A UNITARY, COHESIVE DOCUMENT AND EVERY TIME ANY PIECE OF IT IS IGNORED
OR INTERPRETED AWAY IN THE NAME OF EXPEDIENCE, THE ENTIRE FRAGILE
ENDEAVOR OF CONSTITUTIONAL GOVERNMENT IS MADE THAT MUCH MORE INSECURE. 
THIS OBSERVATION IS AS PERTINENT TO THE SEVENTH AMENDMENT AS IT IS TO
THE FIRST, OR FOURTEENTH, OR ANY OTHER PART OF THE CONSTITUTION. 
INDEED, AS THE DIMICK COURT HELD, "(MAINTENANCE OF THE JURY AS A FACT
FINDING BODY IS OF SUCH IMPORTANCE AND OCCUPIES SO FIRM A PLACE IN OUR
HISTORY AND JURISPRUDENCE THAT ANY SEEMING CURTAILMENT OF THE RIGHT TO
A JURY TRIAL SHOULD BE SCRUTINIZED WITH THE UTMOST CARE." 

[[HC188'(ORIGINAL DOCUMENT PAGE 188)'  ID., AT 486.  IN MY JUDGMENT,
MY BRETHREN HAVE NOT GIVEN THIS CURTAILMENT OF THE JURY RIGHT THE
CAREFUL SCRUTINY WHICH THE PROBLEM DEMANDS.  I MUST, THEREFORE,
RESPECTFULLY DISSENT. 

[[DFN 

/1/  ALTHOUGH I CONSIDER IT ULTIMATELY IRRELEVANT TO THE
CONSTITUTIONAL ISSUE, SEE INFRA, AT 180, IT IS STILL OF SOME INTEREST
THAT VARIATIONS IN JURY SIZE DO SEEM TO PRODUCE VARIATIONS IN FUNCTION
AND RESULT.  IT IS, OF COURSE, INTUITIVELY OBVIOUS THAT THE SMALLER THE
SIZE OF THE JURY, THE LESS LIKELY IT IS TO REPRESENT A FAIR CROSS
STATISTICALLY DEMONSTRABLE IS THAT THE DIFFERENCE BETWEEN A 12-MAN JURY
AND SIX-MAN JURY IN THIS RESPECT IS QUITE DRAMATIC AND LIKELY TO
PRODUCE DIFFERENT RESULTS.  PROFESSOR ZEISEL, PERHAPS OUR LEADING
AUTHORITY ON THE CIVIL JURY, HAS DEMONSTRATED THIS FACT THROUGH USE OF
A MODEL IN WHICH HE ASSUMES THAT 90% OF A HYPOTHETICAL COMMUNITY SHARES
THE SAME VIEWPOINT, WHILE 10% HAS A DIFFERENT VIEWPOINT.  OF 100 12-MAN
JURIES PICKED RANDOMLY FROM SUCH A COMMUNITY, 72 WOULD HAVE AT LEAST
ONE MEMBER OF THE MINORITY GROUP, WHILE OF THE 100 SIX-MAN JURIES SO
SELECTED, ONLY 47 WOULD HAVE MINORITY REPRESENTATION.  MOREOVER, THE
DIFFERENCES IN MINORITY REPRESENTATION PRODUCE SIGNIFICANT DIFFERENCES
IN RESULT.  PROFESSOR ZEISEL POSITS A CASE IN WHICH THE COMMUNITY IS
DIVIDED INTO SIX GROUPS OF EQUAL SIZE WITH RESPECT TO THE MONETARY
VALUE THEY PLACE ON A GIVEN PERSONAL INJURY CLAIM, WITH ONE-SIXTH
EVALUATING THE CLAIM AT $1,000, ANOTHER SIXTH AT $2,000, ETC.  HE ALSO
ASSUMES THAT THE DAMAGES A JURY WILL AWARD LIE CLOSE TO THE AVERAGE
ASSESSMENT OF THE DAMAGES EACH INDIVIDUAL JUROR WOULD CHOOSE.  IF ONE
ACCEPTS THESE HYPOTHESES, "(IT IS EASY TO SEE THAT THE SIX-MEMBER
JURIES SHOW A CONSIDERABLY WIDER VARIATION OF 'VERDICTS' THAN THE
TWELVE-MEMBER JURIES.  FOR INSTANCE, 68.4% OF THE TWELVE-MEMBER JURY
EVALUATIONS FALL BETWEEN $3,000 AND $4,000 WHILE ONLY 51.4% OF THE SIX
MEMBER JURY EVALUATIONS FALL IN THIS RANGE.  ALMOST 16% OF THE SIX
MEMBER JURIES WILL REACH VERDICTS THAT WILL FALL INTO THE EXTREME
LEVELS OF MORE THAN $4,500 OR LESS THAN $2,500, AS AGAINST ONLY A
LITTLE OVER 4% OF THE TWELVE-MEMBER JURIES.  THE APPROPRIATE
STATISTICAL MEASURE OF THIS VARIATION IS THE SO-CALLED STANDARD
DEVIATION.  THE ACTUAL DISTRIBUTION PATTERN WILL ALWAYS DEPEND ON THE
KIND OF STRATIFICATION THAT IS RELEVANT IN A PARTICULAR CASE BUT,
WHATEVER THE CIRCUMSTANCES, THE SIX-MEMBER JURY WILL ALWAYS HAVE A
STANDARD DEVIATION THAT IS GREATER BY ABOUT 42%. THIS IS THE RESULT OF
A MORE GENERAL PRINCIPLE THAT IS NOW WELL KNOWN TO READERS OF SUCH
STATISTICS AS PUBLIC OPINION POLLS--NAMELY, THAT THE SIZE OF ANY SAMPLE
IS INVERSELY RELATED TO ITS MARGIN OF ERROR."  ZEISEL, . . . AND THEN
THERE WERE NONE:  THE DIMINUTION OF THE FEDERAL JURY, 38 U. CHI.  L.
REV. 710, 717 - 718 (1971). 

/2/  SEE INFRA, AT 176 - 177. 

/3/  EVEN IN THE ABSENCE OF CONSTITUTIONAL DIFFICULTIES, I VIEW THIS
COURSE AS AN IMPROPER USE OF THE LOCAL RULEMAKING POWER.  IN MINER V.
ATLASS, WE HELD THAT THE STATUTORY PROCEDURES SURROUNDING THE
RULEMAKING PROCESS WERE "DESIGNED TO INSURE THAT BASIC PROCEDURAL
INNOVATIONS SHALL BE INTRODUCED ONLY AFTER MATURE CONSIDERATION OF
INFORMED OPINION FROM ALL RELEVANT QUARTERS, WITH ALL THE OPPORTUNITIES
FOR COMPREHENSIVE AND INTEGRATED TREATMENT WHICH SUCH CONSIDERATION
AFFORDS."  363 U.S. 641, 650 (1960).  WE THEREFORE DECLINED TO CONSTRUE
THE LOCAL RULEMAKING POWER AS EXTENDING TO SUCH INNOVATIONS.  IBID.
THE COURT SEEKS TO ESCAPE THE FORCE OF THIS PRECEDENT WITH THE
ASSERTION THAT "THE REQUIREMENT OF A SIX-MEMBER JURY IS NOT A 'BASIC
PROCEDURAL INNOVATION.'"  I FIND THIS STATEMENT STARTLING TO SAY THE
LEAST.  WHATEVER ONE'S VIEW OF THE CONSTITUTIONALITY OF SIX-MAN JURIES,
SURELY IT CANNOT BE DOUBTED THAT THIS SHIFT IN A PRACTICE OF SEVEN
HUNDRED YEARS' STANDING, LIKELY TO AFFECT THE OUTCOME OF HUNDREDS OF
CASES, SEE N. 1, SUPRA, AND INFRA, AT 177, CONSTITUTES A "BASIC
PROCEDURAL INNOVATION. 

/4/  INDEED, THE SEVENTH AMENDMENT IS ONE OF THE FEW REMAINING
PROVISIONS IN THE BILL OF RIGHTS WHICH HAS NOT BEEN HELD TO BE
APPLICABLE TO THE STATES.  SEE, E. G., HARDWARD DEALERS MUTUAL FIRE
INS. CO. V. GLIDDEN CO., 284 U.S. 151, 158 (1931); WAGNER ELECTRIC MFG.
CO. V. LYNDON, 262 U.S. 226, 232 (1923). 

/5/  THE AUTHOR OF THIS OPINION BELIEVES THAT THE FOURTEENTH
AMENDMENT WAS INTENDED TO INCORPORATE FULLY SIXTH AMENDMENT
GUARANTEES.  SEE DUNCAN V. LOUISIANA, 391 U.S. 145 (1968). 
NONETHELESS, THE FACT REMAINS THAT THIS COURT HAS YET TO DECIDE THE
ISSUES POSED BY MAJORITY VERDICTS AND SIX-MAN JURIES IN A PURELY SIXTH
AMENDMENT CONTEXT. 

/6/  SEE ALSO GEORGE WASHINGTON'S CONTEMPORANEOUS EXPLANATION IN A
LETTER TO LAFAYETTE FOR THE ABSENCE OF A JURY GUARANTEE ("(IT WAS ONLY
THE DIFFICULTY OF ESTABLISHING A MODE WHICH SHOULD NOT INTERFERE WITH
THE FIXED MODES OF ANY OF THE STATES, THAT INDUCED THE CONVENTION TO
LEAVE IT, AS A MATTER OF FUTURE ADJUSTMENT") 3 FARRAND 298; AND EDMUND
RANDOLPH'S EXPLANATION TO THE VIRGINIA CONVENTION ("I WILL RISK MY
PROPERTY ON THE CERTAINTY, THAT (CONGRES) WILL INSTITUTE THE TRIAL BY
JURY IN SUCH MANNER AS SHALL ACCOMMODATE THE CONVENIENCES OF THE
INHABITANTS OF EVERY STATE:  THE DIFFICULTY OF ASCERTAINING THIS
ACCOMMODATION, WAS THE PRINCIPAL CAUSE OF ITS NOT BEING PROVIDED FOR")
3 FARRAND 309 

/7/  I DO NOT MEAN TO SUGGEST THAT ISOLATED EXPERIMENTS WITH JURIES
OF DIFFERENT SIZES CANNOT BE FOUND IN COLONIAL HISTORY.  INDEED, WHEN
ONE CONSIDERS THE NUMBER OF JURISDICTIONS AND THE SPAN OF TIME
INVOLVED, IT WOULD BE SURPRISING IF THERE WERE NO ABERRATIONS.  SOME
SCHOLARS HAVE ARGUED FROM THE FEW CASES INVOLVING JURIES CONSISTING OF
MORE OR LESS THAN 12 THAT THERE WAS NO COMMON-LAW REQUIREMENT AS TO
JURY SIZE IN THE COLONIES.  SEE, E. G., FISHER, THE SEVENTH AMENDMENT
AND THE COMMON LAW:  NO MAGIC IN NUMBERS, 56 F. R. D. 507 (1973).  IN
FACT, HOWEVER, THE CASES CITED FOR THIS PROPOSITION SEEM TO CONSTITUTE
NO MORE THAN THE EXCEPTIONS WHICH PROVE THE RULE. 

FISHER, FOR EXAMPLE, BASES HIS THESIS ON THE FACT THAT MARYLAND USED
A JURY OF 10 IN ONE CASE IN 1682 AND A JURY OF 11 IN ANOTHER CASE THAT
YEAR AND THAT DELAWARE USED JURIES OF 11, 7, AND 12 IN THREE CASES
TRIED BETWEEN 1676 AND 1705.  SEE ID., AT 530.  BUT WHEN ONE REMEMBERS
THAT THOUSANDS OF CIVIL AND CRIMINAL CASES WERE TRIED DURING THE
PREREVOLUTIONARY PERIOD, THESE FIVE APPARENTLY ISOLATED INSTANCES PROVE
VIRTUALLY NOTHING.  SIMILARLY, SOUTH CAROLINA'S PROVISION FOR A JURY OF
LESS THAN 12 IN THE "COURT FOR THE TRIAL OF SLAVES AND PERSONS OF
COLOR," IBID, WAS OBVIOUSLY LIMITED TO THE PECULIAR CIRCUMSTANCE OF
PERSONS WHO, AT THAT TIME, WERE CONSIDERED TO BE WITHOUT CIVIL RIGHTS
OF ANY KIND.  FISHER'S RELIANCE ON PETITIONS FROM THE CITIZENS OF
ANSON, ORANGE, AND ROWAN COUNTIES FOR JURIES OF LESS THAN 12, IBID, IS
UNACCOUNTABLE SINCE THESE PETITIONS WERE IN FACT REJECTED AND THE
SMALLER JURIES NEVER IMPANELED.  SEE ID., AT 530 - 531, N. 87. 

FISHER'S FINAL EXAMPLE IS PARTICULARLY REVEALING.  JUST PRIOR TO THE
REVOLUTION, NEW JERSEY PASSED AN ACT PROVIDING FOR SIX-MAN JURIES IN
SMALL COURT CASES.  ID., AT 531.  THE LAW WAS CHALLENGED IN THE CASE OF
HOLMES V. WALTON, IN 1780, IN WHICH THE DEFENDANT ARGUED "THE JURY
SWORN TO TRY THE ABOVE CAUSE AND ON WHOSE VERDICT JUDGMENT WAS ENTERED,
CONSISTED OF SIX MEN ONLY, WHEN BY THE LAWS OF THE LAND IT SHOULD HAVE
CONSISTED OF TWELVE MEN."  ID., AT 532 N. 88.  THE NEW JERSEY SUPREME
COURT REJJECTED THIS ARGUMENT AND UPHELD THE VERDICT.  A SCANT MONTH
LATER, HOWEVER, THE NEW JERSEY LEGISLATURE REVERSED THIS DECISION AND
REINSTITUTED THE RIGHT TO 12-MAN JURIES.  SEE IBID. 

/8/  THE COURT ASSERTS THAT "(WHAT IS REQUIRED FOR A 'JURY' IS A
NUMBER LARGE ENOUGH TO FACILITATE GROUP DELIBERATION COMBINED WITH A
LIKELIHOOD OF OBTAINING A REPRESENTATIVE CROSS SECTION OF THE
COMMUNITY."  SEE ANTE, AT 160 N. 16.  WE CAN BYPASS FOR THE MOMENT THE
INTRIGUING QUESTION OF WHERE THE MAJORITY FINDS THIS REQUIREMENT IN THE
WORDS OF THE SEVENTH AMENDMENT.  FOR OUR PURPOSES, IT IS SUFFICIENT TO
NOTE THAT, UPON EXAMINATION, THIS "TEST" TURNS OUT TO BE NO TEST AT
ALL.  IT MAY BE THAT THE IDEAL JURY WOULD PROVIDE "ENOUGH" GROUP
DELIBERATION AND COMMUNITY REPRESENTATION.  BUT THE QUESTION IN THIS
CASE IS HOW MUCH IS "ENOUGH".  OBVIOUSLY, THE LARGER THE JURY THE MORE
GROUP REPRESENTATION IT WILL PROVIDE.  SEE N. 1, SUPRA.  MERELY
OBSERVING THAT A CERTAIN LEVEL OF GROUP REPRESENTATION IS
CONSTITUTIONALLY REQUIRED FAILS TO TELL US WHAT THAT LEVEL IS.  AND,
MORE SIGNIFICANTLY, IT FAILS TO TELL US HOW TO GO ABOUT DECIDING WHAT
THAT LEVEL IS. 

/9/  IT THUS WILL NOT DO TO ARGUE, AS HAS MY BROTHER WHITE, THAT ONE
"CAN GET OFF THE 'SLIPPERY SLOPE' BEFORE HE REACHES THE BOTTOM.  . . .
."  WILLIAMS V. FLORIDA, 399 U.S. 78, 91 N. 28 (1970).  THIS BEGS THE
QUESTIONS HOW ONE KNOWS AT WHAT POINT TO GET OFF-A QUESTION FOR WHICH
THE COURT APPARENTLY HAS NO ANSWER. 

[[DOP 

MR. JUSTICE POWELL, DISSENTING. 

I SHARE THE VIEW OF MR. JUSTICE DOUGLAS THAT LOCAL RULE 13 (D) (1)
IS INCOMPATIBLE WITH THE FEDERAL RULES OF CIVIL PROCEDURE, AND THIS
WOULD REQUIRE A REVERSAL OF THE PRESENT CASE.  ACCORDINGLY I DO NOT
REACH THE CONSTITUTIONAL ISSUE UNDER THE SEVENTH AMENDMENT WHICH IS
ADRESSED BY MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL IN THEIR
SCHOLARLY OPINIONS, ANTE, PP. 149, 166.  CF. JOHNSON V. LOUISIANA, 406
U.S. 356, 366 - 380 (1972) (OPINION OF POWELL, J.). 

LLOYD J. SKEDD ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

CALE CROWLEY ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
/1/ 

/1/  BRIEFS OF AMICI CURIAE WERE FILED BY WILLIAM A. WICK, ALSTON
JENNINGS, AND JOHN C. ELAM FOR THE INTERNATIONAL ASSOCIATION OF
INSURANCE COUNSEL; BY JOSEPH W. COTCHETT, DAVID DOAR, LEONARD SACKS,
SIEGFRIED HESSE, EDWARD I. POLLOCK, THEODORE A. HORN, AND MARVIN E.
LEWIS FOR THE CALIFORNIA TRIAL LAWYERS ASSN.; BY LEONARD BOUDIN AND
ALAN SCHEFLIN FOR THE NATIONAL EMERGENCY CIVIL LIBERTIES COMMITTEE; AND
BY THE NOOTER CORP.
..END :




KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO 413 U.S. 189 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT 

     NO. 71 - 507.  ARGUED OCTOBER 12, 1972--DECIDED JUNE 21, 1973;

  445 F.2D 990, MODIFIED AND REMANDED. 


    PETITIONERS SOUGHT DESEGREGATION OF THE PARK HILL AREA SHCOOLS

  IN DENVER AND, UPON SECURING AN ORDER OF THE DISTRICT COURT

  DIRECTING THAT RELIEF, EXPANDING THEIR SUIT TO SECURE

  DESEGREGATION OF THE REMAINING SCHOOLS OF THE DENVER SCHOOL

  DISTRICT, PARTICULARLY THOSE IN THE CORE CITY AREA.  THE DISTRICT

  COURT DENIED THE FURTHER RELIEF, HOLDING THAT THE DELIBERATE

  RACIAL SEGREGATION OF THE PARK HILL SCHOOLS DID NOT PROVE A LIKE

  SEGREGATION POLICY ADDRESSED SPECIFICALLY TO THE CORE CITY

  SCHOOLS AND REQUIRING PETITIONERS TO PROVE DE JURE SEGREGATION

  FOR EACH AREA THAT THEY SOUGHT TO HAVE DESEGREGATED.  THAT COURT

NEVERTHELESS FOUND THAT THE SEGREGATED CORE CITY SCHOOLS WERE

  EDUCATIONALLY INFERIOR TO "WHITE" SCHOOLS ELSEWHERE IN THE

  DISTRICT AND, RELYING ON PLESSY V. FERGUSON, 163 U.S. 537,

  ORDERED THE RESPONDENTS TO PROVIDE SUBSTANTIALLY EQUAL FACILITIES

  FOR THOSE SCHOOLS.  THIS LATTER RELIEF WAS REVERSED BY THE COURT

  OF APPEALS, WHICH AFFIRMED THE PARK HILL RULING AND AGREED THAT

  PARK HILL SEGREGATION, EVEN THOUGH DELIBERATE, PROVED NOTHING

  REGARDING AN OVERALL POLICY OF SEGREGATION.  HELD: 

     1.  THE DISTRICT COURT, FOR PURPOSES OF DEFINING A
"SEGREGATED"

  CORE CITY SCHOOLS, ERRED IN NOT PLACING NEGROES AND HISPANOS IN

  THE SAME CATEGORY SINCE BOTH GROUPS SUFFER THE SAME EDUCATIONAL

  INEQUITIES WHEN COMPARED WITH THE TREATMENT AFFORDED ANGLO

  STUDENTS.  PP. 195 - 198. 

     2.  THE COURTS BELOW DID NOT APPLY THE CORRECT LEGAL STANDARD

  IN DEALING WITH PETITIONERS'  CONTENTION THAT RESPONDENT SCHOOL

  BOARD HAD THE POLICY OF DELIBERATELY SEGREGATING THE CORE CITY

  SCHOOLS.  PP. 198 - 213. 

     (A) PROOF THAT THE SCHOOL AUTHORITIES HAVE PURSUED AN

  INTENTIONAL SEGREGATIVE POLICY IN A SUBSTANTIAL PORTION OF THE

  SCHOOL DISTRICT WILL SUPPORT A FINDING BY THE TRIAL COURT OF THE

  EXISTENCE OF A DUAL SYSTEM, ABSENT A SHOWING THAT THE DISTRICT IS

DIVIDED INTO CLEARLY UNRELATED UNITS.  PP. 201 - 203. 

 (B) ON REMAND THE DISTRICT COURT SHOULD DECIDE INITIALLY

  WHETHER RESPONDENT SCHOOL BOARD'S DELIBERATELY SEGREGATIVE POLICY

  RESPECTING THE PARK HILL SCHOOLS CONSTITUTES THE WHOLE DENVER

  SCHOOL DISTRICT A DUAL SCHOOL SYSTEM.  PP. 204 - 205. 

[[HC190'(ORIGINAL DOCUMENT PAGE 190)' 

(C) WHERE, AS IN THIS CASE, A POLICY OF INTENTIONAL SEGREGATION

  HAS BEEN PROVED WITH RESPECT TO A SIGNIFICANT PORTION OF THE

  SCHOOL SYSTEM, THE BURDEN IS ON THE SCHOOL AUTHORITIES

  (REGARDLESS OF CLAIMS THAT THEIR "NEIGHBORHOOD SCHOOL POLICY" WAS

  RACAILLY NEUTRAL) TO PROVE THAT THEIR ACTIONS AS TO OTHER

  SEGREGATED SCHOOLS IN THE SYSTEM WERE NOT LIKEWISE MOTIVATED BY A

  SEGREGATIVE INTENT.  PP. 207 - 213. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED A
SEPARATE OPINION, POST, P. 214.  BURGER, C. J., CONCURRED IN THE
RESULT.  POWELL, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING
IN PART, POST, P. 217.  REHNQUIST, J., FILED A DISSENTING OPINION,
POST, P. 254.  WHITE, J., TOOK NO PART IN THE DECISION OF THE CASE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

[[HC191'(ORIGINAL DOCUMENT PAGE 191)' 

THIS SCHOOL DESEGREGATION CASE CONCERNS THE DENVER, COLORADO, SCHOOL
SYSTEM.  THAT SYSTEM HAS NEVER BEEN OPERATED UNDER A CONSTITUTIONAL OR
STATUTORY PROVISION THAT MANDATED OR PERMITTED RACIAL SEGREGATION IN
PUBLIC EDUCATION.  /1/  RATHER, THE GRAVAMEN OF THIS ACTION, BROUGHT IN
JUNE 1969 IN THE DISTRICT COURT FOR THE DISTRICT OF COLORADO BY PARENTS
OF DENVER SCHOOLCHILDREN, IS THAT RESPONDENT SCHOOL BOARD ALONE, BY USE
OF VARIOUS TECHNIQUES SUCH AS THE MANIPULATION OF STUDENT ATTENDANCE
ZONES, SCHOOLSITE SELECTION AND A NEIGHBORHOOD SCHOOL POLICY, CREATED
OR MAINTAINED RACIALLY OR ETHNICALLY (OR BOTH RACIALLY AND ETHNICALLY)
SEGREGATED SCHOOLS THROUGHOUT THE SCHOOL DISTRICT, ENTITLING
PETITIONERS TO A DECREE DIRECTING DESEGREGATION OF THE ENTIRE SCHOOL
DISTRICT. 

THE BOUNDARIES OF THE SCHOOL DISTRICT ARE COTERMINOUS WITH THE
BOUNDARIES OF THE CITY AND COUNTY OF DENVER.  THERE WERE IN 1969, 119
SCHOOLS /2/  WITH 96,580 PUPILS IN THE SCHOOL SYSTEM. 

[[HC192'(ORIGINAL DOCUMENT PAGE 192)'  IN EARLY 1969, THE RESPONDENT
SCHOOL BOARD ADOPTED THREE RESOLUTIONS, RESOLUTIONS 1520, 1524, AND
1531, DESIGNED TO DEGESREGATE THE SCHOOLS IN THE PARK HILL AREA IN THE
NORTHEAST PORTION OF THE CITY.  FOLLOWING AN ELECTION WHICH PRODUCED A
BOARD MAJORITY OPPOSED TO THE RESOLUTIONS, THE RESOLUTIONS WERE
RESCINDED AND REPLACED WITH A VOLUNTARY STUDENT TRANSFER PROGRAM. 
PETITIONERS THEN FILED THIS ACTION, REQUESTING AN INJUNCTION AGAINST
THE RESCISSION OF THE RESOLUTIONS AND AN ORDER DIRECTING THAT THE
RESPONDENT SCHOOL BOARD DESEGREGATE AND AFFORD EQUAL EDUCATIONAL
OPPORTUNITY "FOR THE SCHOOL DISTRICT AS A WHOLE."  APP. 32A.  THE
DISTRICT COURT FOUND THAT BY THE CONSTRUCTION OF A NEW, RELATIVELY
SMALL ELEMENTARY SCHOOL, BARRETT, IN THE MIDDLE OF THE NEGRO COMMUNITY
WEST OF PARK HILL, BY THE GERRYMANDERING OF STUDENT ATTENDANCE ZONES,
BY THE USE OF SO-CALLED "OPTIONAL ZONES,"  AND BY THE EXCESSIVE USE OF
MOBILE CLASSROOM UNITS, AMONG OTHER THINGS, THE RESPONDENT SCHOOL BOARD
HAD ENGAGED OVER ALMOST A DECADE AFTER 1960 IN AN UNCONSTITUTIONAL
POLICY OF DELIBERATE RACIAL SEGREGATION WITH RESPECT TO THE PARK HILL
SCHOOLS.  /3/  THE COURT THEREFORE ORDERED THE BOARD TO DESEGREGATE
THOSE SCHOOLS THROUGH THE IMPLEMENTATION OF THE THREE RESCINDED
RESOLUTIONS.  303 F.SUPP.  279 AND 289 (1969). 

SEGREGATION IN DENVER SCHOOLS IS NOT LIMITED, HOWEVER, TO THE
SCHOOLS IN THE PARK HILL AREA, AND NOT SATISFIED WITH THEIR SUCCESS IN
OBTAINING RELIEF FOR PARK HILL, PETITIONERS PRESSED THEIR PRAYER THAT
THE DISTRICT COURT ORDER DESEGREGATION OF ALL SEGREGATED SCHOOLS IN THE
CITY OF DENVER, PARTICULARLY THE HEAVILY SEGREGATED SCHOOLS IN THE CORE
CITY AREA.  /4/ 

[[HC193'(ORIGINAL DOCUMENT PAGE 193)'  BUT THAT COURT CONCLUDED THAT
ITS FINDING OF A PURPOSEFUL AND SYSTEMATIC PROGRAM OF RACIAL
SEGREGATION AFFECTING THOUSANDS OF STUDENTS IN THE PARK HILL AREA DID
NOT, IN ITSELF, IMPOSE ON THE SCHOOL BOARD AN AFFIRMATIVE DUTY TO
ELIMINATE SEGREGATION THROUGHOUT THE SCHOOL DISTRICT.  INSTEAD, THE
COURT FRACTIONATED THE DISTRICT AND HELD THAT PETITIONERS HAD TO MAKE A
FRESH SHOWING OF DE JURE SEGREGATION IN EACH AREA OF THE CITY FOR WHICH
THEY SOUGHT RELIEF.  MOREOVER, THE DISTRICT COURT HELD THAT ITS FINDING
OF INTENTIONAL SEGREGATION IN PARK HILL WAS NOT IN ANY SENSE MATERIAL
TO THE QUESTION OF SEGREGATIVE INTENT IN OTHER AREAS OF THE CITY. 
UNDER THIS RESTRICTIVE APPROACH, THE DISTRICT COURT CONCLUDED THAT
PETITIONERS' EVIDENCE OF INTENTIONALLY DISCRIMINATORY SCHOOL BOARD
ACTION IN AREAS OF THE DISTRICT OTHER THAN PARK HILL WAS INSUFFICIENT
TO "DICTATE THE CONCLUSION THAT THIS IS DE JURE SEGREGATION WHICH CALLS
FOR AN ALL-OUT EFFORT TO DESEGREGATE.  IT IS MORE LIKE DE FACTO
SEGREGATION, WITH RESPECT TO WHICH THE RULE IS THAT THE COURT CANNOT
ORDER DESEGREGATION IN ORDER TO PROVIDE A BETTER BALANCE."  313
F.SUPP.  61, 73 (1970). 

NEVERTHELESS, THE DISTRICT COURT WENT ON TO HOLD THAT THE PROOFS
ESTABLISHED THAT THE SEGREGATED CORE CITY SCHOOLS WERE EDUCATIONALLY
INFERIOR TO THE PREDOMINANTLY "WHITE" OR "ANGLO" SCHOOLS IN OTHER PARTS
OF THE DISTRICT--THAT IS, "SEPARATE FACILITIES . . . UNEQUAL IN THE
QUALITY OF EDUCATION PROVIDED."  ID., AT 83.  THUS, THE COURT HELD
THAT, UNDER THE DOCTRINE OF PLESSY V. FERGUSON, 163 U.S. 537 (1896),
RESPONDENT SCHOOL BOARD CONSTITUTIONALLY "MUST AT A MINIMUM . . . OFFER
AN EQUAL EDUCATIONAL OPPORTUNITY," 313 F.SUPP., AT 83, AND, THEREFORE,
ALTHOUGH ALL-OUT DESEGREGATION "COULD NOT BE DECREED, . . . THE ONLY
FEASIBLE AND CONSTITUTIONALLY ACCEPTABLE PROGRAM--THE ONLY PROGRAM
WHICH FURNISHES ANYTHING APPROACHING SUBSTANTIAL EQUALITY--IS A SYSTEM
OF DESEGREGATION AND INTEGRATION WHICH PROVIDES COMPENSATORY EDUCATION
IN AN INTEGRATED ENVIRONMENT." 

[[HC194'(ORIGINAL DOCUMENT PAGE 194)'  313 F.SUPP.  90, 96 (1970). 
THE DISTRICT COURT THEN FORMULATED A VARIED REMEDIAL PLAN TO THAT END
WHICH WAS INCORPORATED IN THE FINAL DECREE.  /5/ 

RESPONDENT SCHOOL BOARD APPEALED, AND PETITIONERS CROSS-APPEALED, TO
THE COURT OF APPEALS FOR THE TENTH CIRCUIT.  THAT COURT SUSTAINED THE
DISTRICT COURT'S FINDING THAT THE BOARD HAD ENGAGED IN AN
UNCONSTITUTIONAL POLICY OF DELIBERATE RACIAL SEGREGATION WITH RESPECT
TO THE PARK HILL SCHOOLS AND AFFIRMED THE FINAL DECREE IN THAT
RESPECT.  AS TO THE CORE CITY SCHOOLS, HOWEVER, THE COURT OF APPEALS
REVERSED THE LEGAL DETERMINATION OF THE DISTRICT COURT THAT THOSE
SCHOOLS WERE MAINTAINED IN VIOLATION OF THE FOURTEENTH AMENDMENT
BECAUSE OF THE UNEQUAL EDUCATIONAL OPPORTUNITY AFFORDED, AND THEREFORE
SET ASIDE SO MUCH OF THE FINAL DECREE AS REQUIRED DESEGREGATION AND
EDUCATIONAL IMPROVEMENT PROGRAMS FOR THOSE SCHOOLS. 

[[HC195'(ORIGINAL DOCUMENT PAGE 195)'  445 F.2D 990 (1971).  IN
REACHING THAT RESULT, THE COURT OF APPEALS ALSO DISREGARDED RESPONDENT
SCHOOL BOARD'S DELIBERATE RACIAL SEGREGATION POLICY RESPECTING THE PARK
HILL SCHOOLS AND ACCEPTED THE DISTRICT COURT'S FINDING THAT PETITIONERS
HAD NOT PROVED THAT RESPONDENT HAD A LIKE POLICY ADDRESSED SPECIFICALLY
TO THE CORE CITY SCHOOLS. 

WE GRANTED PETITIONERS' PETITION FOR CERTIORARI TO REVIEW THE COURT
OF APPEALS' JUDGMENT INSOFAR AS IT REVERSED THAT PART OF THE DISTRICT
COURT'S FINAL DECREE AS PERTAINED TO THE CORE CITY SCHOOLS.  404 U.S.
1036 (1972).  THE JUDGMENT OF THE COURT OF APPEALS IN THAT RESPECT IS
MODIFIED TO VACATE INSTEAD OF REVERSE THE FINAL DECREE.  THE RESPONDENT
SCHOOL BOARD HAS CROSS-PETITIONED FOR CERTIORARI TO REVIEW THE JUDGMENT
OF THE COURT OF APPEALS INSOFAR AS IT AFFIRMED THAT PART OF THE
DISTRICT COURT'S FINAL DECREE AS PERTAINED TO THE PARK HILL SCHOOLS. 
DOCKET NO. 71 - 572, SCHOOL DISTRICT NO. 1 V. KEYES.  THE CROSS
PETITION IS DENIED. 

I 

BEFORE TURNING TO THE PRIMARY QUESTION WE DECIDE TODAY A WORD MUST
BE SAID ABOUT THE DISTRICT COURT'S METHOD OF DEFINING A "SEGREGATED"
SCHOOL.  DENVER IS A TRIETHNIC, AS DISTINGUISHED FROM A BI-RACIAL,
COMMUNITY.  THE OVERALL RACIAL AND ETHNIC COMPOSITION OF THE DENVER
PUBLIC SCHOOLS IS 66% ANGLO, 14% NEGRO, AND 20% HISPANO.  /6/  THE
DISTRICT COURT, IN ASSESSING THE QUESTION OF DE JURE SEGREGATION IN THE
CORE CITY SCHOOLS, PRELIMINARILY RESOLVED THAT NEGROES AND HISPANOS
SHOULD NOT BE PLACED IN THE SAME CATEGORY TO ESTABLISH THE SEGREGATED
CHARACTER OF A SCHOOL. 

[[HC196'(ORIGINAL DOCUMENT PAGE 196)'  313 F.SUPP., AT 69.  LATER,
IN DETERMINING THE SCHOOLS THAT WERE LIKELY TO PRODUCE AN INFERIOR
EDUCATIONAL OPPORTUNITY, THE COURT CONCLUDED THAT A SCHOOL WOULD BE
CONSIDERED INFERIOR ONLY IF IT HAD "A CONCENTRATION OF EITHER NEGRO OR
HISPANO STUDENTS IN THE GENERAL AREA OF 70 TO 75 PERCENT."  ID., AT
77.  WE INTIMATE NO OPINION WHETHER THE DISTRICT COURT'S 70% TO 75%
REQUIREMENT WAS CORRECT.  THE DISTRICT COURT USED THOSE FIGURES TO
SIGNIFY EDUCATIONALLY INFERIOR SCHOOLS, AND THERE IS NO SUGGESTION IN
THE RECORD THAT THOSE SAME FIGURES WERE OR WOULD BE USED TO DEFINE A
"SEGREGATED" SCHOOL IN THE DE JURE CONTEXT.  WHAT IS OR IS NOT A
SEGREGATED SCHOOL WILL NECESSARILY DEPEND ON THE FACTS OF EACH
PARTICULAR CASE.  IN ADDITION TO THE RACIAL AND ETHNIC COMPOSITION OF A
SCHOOL'S STUDENT BODY, OTHER FACTORS, SUCH AS THE RACIAL AND ETHNIC
COMPOSITION OF FACULTY AND STAFF AND THE COMMUNITY AND ADMINISTRATION
ATTITUDES TOWARD THE SCHOOL, MUST BE TAKEN INTO CONSIDERATION.  THE
DISTRICT COURT HAS RECOGNIZED THESE SPECIFIC FACTORS AS ELEMENTS OF THE
DEFINITION OF A "SEGREGATED"  SCHOOL, ID., AT 74, AND WE MAY THEREFORE
INFER THAT THE COURT WILL CONSIDER THEM AGAIN ON REMAND. 

WE CONCLUDE, HOWEVER, THAT THE DISTRICT COURT ERRED IN SEPARATING
NEGROES AND HISPANOS FOR PURPOSES OF DEFINING A "SEGREGATED"  SCHOOL. 

[[HC197'(ORIGINAL DOCUMENT PAGE 197)'  WE HAVE HELD THAT HISPANOS
CONSTITUTE AN IDENTIFIABLE CLASS FOR PURPOSES OF THE FOURTEENTH
AMENDMENT.  HERNANDEZ V. TEXAS, 347 U.S. 475 (1954).  SEE ALSO UNITED
STATES V. TEXAS EDUCATION AGENCY, 467 F.2D 848 (CA5 1972) (EN BANC);
CISNEROS V. CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT, 467 F.2D 142
(CA5 1972) (EN BANC); ALVARADO V. EL PASO INDEPENDENT SCHOOL DISTRICT,
445 F.2D 1011 (CA5 1971); SORIA V. OXNARD SCHOOL DISTRICT, 328 F.SUPP. 
155 (CD CAL. 1971); ROMERO V. WEAKLEY, 226 F.2D 399 (CA9 1955). 
INDEED, THE DISTRICT COURT RECOGNIZED THIS IN CLASSIFYING PREDOMINANTLY
HISPANO SCHOOLS AS "SEGREGATED" SCHOOLS IN THEIR OWN RIGHT.  BUT THERE
IS ALSO MUCH EVIDENCE THAT IN THE SOUTHWEST HISPANOS AND NEGROES HAVE A
GREAT MANY THINGS IN COMMON.  THE UNITED STATES COMMISSION ON CIVIL
RIGHTS HAS RECENTLY PUBLISHED TWO REPORTS ON HISPANO EDUCATION IN THE
SOUTHWEST.  /7/  FOCUSING ON STUDENTS IN THE STATES OF ARIZONA,
CALIFORNIA, COLORADO, NEW MEXICO, AND TEXAS, THE COMMISSION CONCLUDED
THAT HISPANOS SUFFER FROM THE SAME EDUCATIONAL INEQUITIES AS NEGROES
AND AMERICAN INDIANS.  /8/  IN FACT, THE DISTRICT COURT ITSELF
RECOGNIZED THAT "(ONE OF THE THINGS WHICH THE HISPANO HAS IN COMMON
WITH THE NEGRO IS ECONOMIC AND CULTURAL DEPRIVATION AND
DISCRIMINATION." 

[[HC198'(ORIGINAL DOCUMENT PAGE 198)'  313 F.SUPP., AT 69.  THIS IS
AGREEMENT THAT, THOUGH OF DIFFERENT ORIGINS, NEGROES AND HISPANOS IN
DENVER SUFFER IDENTICAL DISCRIMINATION IN TREATMENT WHEN COMPARED WITH
THE TREATMENT AFFORDED ANGLO STUDENTS.  IN THAT CIRCUMSTANCE, WE THINK
PETITIONERS ARE ENTITLED TO HAVE SCHOOLS WITH A COMBINED PREDOMINANCE
OF NEGROES AND HISPANOS INCLUDED IN THE CATEGORY OF "SEGREGATED"
SCHOOLS. 

        II 

IN OUR VIEW, THE OTHER QUESTION THAT REQUIRES OUR DECISION AT THIS
TIME IS THAT SUBSUMED IN QUESTION 2 OF THE QUESTIONS PRESENTED BY
PETITIONERS, NAMELY, WHETHER THE DISTRICT COURT AND THE COURT OF
APPEALS APPLIED AN INCORRECT LEGAL STANDARD IN ADDRESSING PETITIONERS'
CONTENTION THAT RESPONDENT SCHOOL BOARD ENGAGED IN AN UNCONSTITUTIONAL
POLICY OF DELIBERATE SEGREGATION IN THE CORE CITY SCHOOLS.  OUR
CONCLUSION IS THAT THOSE COURTS DID NOT APPLY THE CORRECT STANDARD IN
ADDRESSING THAT CONTENTION.  /9/ 

PETITIONERS APPARENTLY CONCEDE FOR THE PURPOSES OF THIS CASE THAT IN
THE CASE OF A SCHOOL SYSTEM LIKE DENVER'S, WHERE NO STATUTORY DUAL
SYSTEM HAS EVER EXISTED, PLAINTIFFS MUST PROVE NOT ONLY THAT SEGREGATED
SCHOOLING EXISTS BUT ALSO THAT IT WAS BROUGHT ABOUT OR MAINTAINED BY
INTENTIONAL STATE ACTION.  PETITIONERS PROVED THAT FOR ALMOST A DECADE
AFTER 1960 RESPONDENT SCHOOL BOARD HAD ENGAGED IN AN UNCONSTITUTIONAL
POLICY OF DELIBERATE RACIAL SEGREGATION IN THE PARK HILL SCHOOLS. 
INDEED, THE DISTRICT COURT FOUND THAT "(BETWEEN 1960 AND 1969 THE
BOARD'S POLICIES WITH RESPECT TO THESE NORTHEAST DENVER SCHOOLS SHOW AN
UNDEVIATING PURPOSE TO ISOLATE NEGRO STUDENTS"  IN SEGREGATED SCHOOLS
"WHILE PRESERVING THE ANGLO CHARACTER OF (OTHER) SCHOOLS." 

[[HC199'(ORIGINAL DOCUMENT PAGE 199)'  303 F.SUPP., AT 294.  THIS
FINDING DID NOT RELATE TO AN INSUBSTANTIAL OR TRIVIAL FRAGMENT OF THE
SCHOOL SYSTEM.  ON THE CONTRARY, RESPONDENT SCHOOL BOARD WAS FOUND
GUILTY OF FOLLOWING A DELIBERATE SEGREGATION POLICY AT SCHOOLS
ATTENDED, IN 1969, BY 37.69% OF DENVER'S TOTAL NEGRO SCHOOL POPULATION,
INCLUDING ONE-FOURTH OF THE NEGRO ELEMENTARY PUPILS, OVER TWO-THIRDS OF
THE NEGRO JUNIOR HIGH PUPILS, AND OVER TWO-FIFTHS OF THE NEGRO HIGH
SCHOOL PUPILS.  /10/  IN ADDITION, THERE WAS UNCONTROVERTED EVIDENCE
THAT TEACHERS AND STAFF HAD FOR YEARS BEEN ASSIGNED ON THE BASIS OF A
MINORITY TEACHER TO A MINORITY SCHOOL THROUGHOUT THE SCHOOL SYSTEM. 

[[HC200'(ORIGINAL DOCUMENT PAGE 200)'  RESPONDENT ARGUES, HOWEVER,
THAT A FINDING OF STATE-IMPOSED SEGREGATION AS TO A SUBSTANTIAL PORTION
OF THE SCHOOL SYSTEM CAN BE VIEWED IN ISOLATION FROM THE REST OF THE
DISTRICT, AND THAT EVEN IF STATE-IMPOSED SEGREGATION DOES EXIST IN A
SUBSTANTIAL PART OF THE DENVER SCHOOL SYSTEM, IT DOES NOT FOLLOW THAT
THE DISTRICT COURT COULD PREDICATE ON THAT FACT A FINDING THAT THE
ENTIRE SCHOOL SYSTEM IS A DUAL SYSTEM.  WE DO NOT AGREE.  WE HAVE NEVER
SUGGESTED THAT PLAINTIFFS IN SCHOOL DESEGREGATION CASES MUST BEAR THE
BURDEN OF PROVING THE ELEMENTS OF DE JURE SEGREGATION AS TO EACH AND
EVERY SCHOOL OR EACH AND EVERY STUDENT WITHIN THE SCHOOL SYSTEM. 
RATHER, WE HAVE HELD THAT WHERE PLAINTIFFS PROVE THAT A CURRENT
CONDITION OF SEGREGATED SCHOOLING EXISTS WITHIN A SCHOOL DISTRICT WHERE
A DUAL SYSTEM WAS COMPELLED OR AUTHORIZED BY STATUTE AT THE TIME OF OUR
DECISION IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954) (BROWN I),
THE STATE AUTOMATICALLY ASSUMES AN AFFIRMATIVE DUTY "TO EFFECTUATE A
TRANSITION TO A RACIALLY NONDISCRIMINATORY SCHOOL SYSTEM," BROWN V.
BOARD OF EDUCATION, 349 U.S. 294, 301 (1955) (BROWN II), SEE ALSO GREEN
V. COUNTY SCHOOL BOARD, 391 U.S. 430, 437 - 438 (1968), THAT IS, TO
ELIMINATE FROM THE PUBLIC SCHOOLS WITHIN THEIR SCHOOL SYSTEM "ALL
VESTIGES OF STATE-IMPOSED SEGREGATION."  SWANN V. CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION, 402 U.S. 1, 15 (1971).  /11/     THIS IS NOT A
CASE, HOWEVER, WHERE A STATUTORY DUAL SYSTEM HAS EVER EXISTED. 

[[HC201'(ORIGINAL DOCUMENT PAGE 201)'  NEVERTHELESS, WHERE
PLAINTIFFS PROVE THAT THE SCHOOL AUTHORITIES HAVE CARRIED OUT A
SYSTEMATIC PROGRAM OF SEGREGATION AFFECTING A SUBSTANTIAL PORTION OF
THE STUDENTS, SCHOOLS, TEACHERS, AND FACILITIES WITHIN THE SCHOOL
SYSTEM, IT IS ONLY COMMON SENSE TO CONCLUDE THAT THERE EXISTS A
PREDICATE FOR A FINDING OF THE EXISTENCE OF A DUAL SCHOOL SYSTEM. 
SEVERAL CONSIDERATIONS SUPPORT THIS CONCLUSION.  FIRST, IT IS OBVIOUS
THAT A PRACTICE OF CONCENTRATING NEGROES IN CERTAIN SCHOOLS BY
STRUCTURING ATTENDANCE ZONES OR DESIGNATING "FEEDER"  SCHOOLS ON THE
BASIS OF RACE HAS THE RECIPROCAL EFFECT OF KEEPING OTHER NEARBY SCHOOLS
PREDOMINANTLY WHITE.  /12/  SIMILARLY, THE PRACTICE OF BUILDING A
SCHOOL--SUCH AS THE BARRETT ELEMENTARY SCHOOL IN THIS CASE--TO A
CERTAIN SIZE AND IN A CERTAIN LOCATION, "WITH CONSCIOUS KNOWLEDGE THAT
IT WOULD BE A SEGREGATED SCHOOL,"  303 F.SUPP., AT 285, HAS A
SUBSTANTIAL RECIPROCAL EFFECT ON THE RACIAL COMPOSITION OF OTHER NEARBY
SCHOOLS. 

[[HC202'(ORIGINAL DOCUMENT PAGE 202)'  SO ALSO, THE USE OF MOBILE
CLASSROOMS, THE DRAFTING OF STUDENT TRANSFER POLICIES, THE
TRANSPORTATION OF STUDENTS, AND THE ASSIGNMENT OF FACULTY AND STAFF, ON
RACIALLY IDENTIFIABLE BASES, HAVE THE CLEAR EFFECT OF EARMARKING
SCHOOLS ACCORDING TO THEIR RACIAL COMPOSITION, AND THIS, IN TURN,
TOGETHER WITH THE ELEMENTS OF STUDENT ASSIGNMENT AND SCHOOL
CONSTRUCTION, MAY HAVE A PROFOUND RECIPROCAL EFFECT ON THE RACIAL
COMPOSITION OF RESIDENTIAL NEIGHBORHOODS WITHIN A METROPOLITAN AREA,
THEREBY CAUSING FURTHER RACIAL CONCENTRATION WITHIN THE SCHOOLS.  WE
RECOGNIZED THIS IN SWANN WHEN WE SAID: 

"THEY (SCHOOL AUTHORITIES) MUST DECIDE QUESTIONS OF LOCATION AND
CAPACITY IN LIGHT OF POPULATION GROWTH, FINANCES, LAND VALUES, SITE
AVAILABILITY, THROUGH AN ALMOST ENDLESS LIST OF FACTORS TO BE
CONSIDERED.  THE RESULT OF THIS WILL BE A DECISION WHICH, WHEN COMBINED
WITH ONE TECHNIQUE OR ANOTHER OF STUDENT ASSIGNMENT, WILL DETERMINE THE
RACIAL COMPOSITION OF THE STUDENT BODY IN EACH SCHOOL IN THE SYSTEM. 
OVER THE LONG RUN, THE CONSEQUENCES OF THE CHOICES WILL BE FAR
REACHING.  PEOPLE GRAVITATE TOWARD SCHOOL FACILITIES, JUST AS SCHOOLS
ARE LOCATED IN RESPONSE TO THE NEEDS OF PEOPLE.  THE LOCATION OF
SCHOOLS MAY THUS INFLUENCE THE PATTERNS OF RESIDENTIAL DEVELOPMENT OF A
METROPOLITAN AREA AND HAVE IMPORTANT IMPACT ON COMPOSITION OF INNER
CITY NEIGHBORHOODS. 

     "IN THE PAST, CHOICES IN THIS RESPECT HAVE BEEN USED AS A

  POTENT WEAPON FOR CREATING OR MAINTAINING A STATE-SEGREGATED

  SCHOOL SYSTEM.  IN ADDITION TO THE CLASSIC PATTERN OF BUILDING

  SCHOOLS SPECIFICALLY INTENDED FOR NEGRO OR WHITE STUDENTS, SCHOOL

  AUTHORITIES HAVE SOMETIMES, SINCE BROWN, CLOSED SCHOOLS WHICH

  APPEARED LIKELY TO BECOME RACIALLY MIXED THROUGH CHANGES IN

  NEIGHBORHOOD RESIDENTIAL PATTERNS. 

[[HC203'(ORIGINAL DOCUMENT PAGE 203)'

  THIS WAS SOMETIMES ACCOMPANIED BY BUILDING NEW SCHOOLS IN THE
AREAS OF WHITE SUBURBAN

 EXPANSION FARTHEST FROM NEGRO POPULATION CENTERS IN ORDER TO
MAINTAIN THE SEPARATION OF THE

  RACES WITH A MINIMUM DEPARTURE FROM THE FORMAL PRINCIPLES OF
'NEIGHBORHOOD ZONING.'  SUCH A

  POLICY DOES MORE THAN SIMPLY INFLUENCE THE SHORT-RUN COMPOSITION
OF THE STUDENT BODY OF A NEW

  SCHOOL.  IT MAY WELL PROMOTE SEGREGATED RESIDENTIAL PATTERNS
WHICH, WHEN COMBINED WITH

  'NEIGHBORHOOD ZONING,' FURTHER LOCK THE SCHOOL SYSTEM INTO THE
MOLD OF SEPARATION OF THE

  RACES.  UPON A PROPER SHOWING A DISTRICT COURT MAY CONSIDER THIS
IN FASHIONING A REMEDY."  402

  U.S., AT 20 - 21. 

IN SHORT, COMMON SENSE DICTATES THE CONCLUSION THAT RACIALLY
INSPIRED SCHOOL BOARD ACTIONS HAVE AN IMPACT BEYOND THE PARTICULAR
SCHOOLS THAT ARE THE SUBJECTS OF THOSE ACTIONS.  THIS IS NOT TO SAY, OF
COURSE, THAT THERE CAN NEVER BE A CASE IN WHICH THE GEOGRAPHICAL
STRUCTURE OF, OR THE NATURAL BOUNDARIES WITHIN, A SCHOOL DISTRICT MAY
HAVE THE EFFECT OF DIVIDING THE DISTRICT INTO SEPARATE, IDENTIFIABLE
AND UNRELATED UNITS.  SUCH A DETERMINATION IS ESSENTIALLY A QUESTION OF
FACT TO BE RESOLVED BY THE TRIAL COURT IN THE FIRST INSTANCE, BUT SUCH
CASES MUST BE RARE.  IN THE ABSENCE OF SUCH A DETERMINATION, PROOF OF
STATE-IMPOSED SEGREGATION IN A SUBSTANTIAL PORTION OF THE DISTRICT WILL
SUFFICE TO SUPPORT A FINDING BY THE TRIAL COURT OF THE EXISTENCE OF A
DUAL SYSTEM.  OF COURSE, WHERE THAT FINDING IS MADE, AS IN CASES
INVOLVING STATUTORY DUAL SYSTEMS, THE SCHOOL AUTHORITIES HAVE AN
AFFIRMATIVE DUTY "TO EFFECTUATE A TRANSITION TO A RACIALLY
NONDISCRIMINATORY SCHOOL SYSTEM."  BROWN II, SUPRA, AT 301. 

ON REMAND, THEREFORE, THE DISTRICT COURT SHOULD DECIDE IN THE FIRST
INSTANCE WHETHER RESPONDENT SCHOOL BOARD'S DELIBERATE RACIAL
SEGREGATION POLICY WITH RESPECT TO THE PARK HILL SCHOOLS CONSTITUTES
THE ENTIRE DENVER SCHOOL SYSTEM A DUAL SCHOOL SYSTEM. 

[[HC204'(ORIGINAL DOCUMENT PAGE 204)'  WE OBSERVE THAT ON THE RECORD
NOW BEFORE US THERE IS INDICATION THAT DENVER IS NOT A SCHOOL DISTRICT
WHICH MIGHT BE DIVIDED INTO SEPARATE, IDENTIFIABLE AND UNRELATED
UNITS.  THE DISTRICT COURT STATES, IN ITS SUMMARY OF FINDINGS AS TO THE
PARK HILL SCHOOLS, THAT THERE WAS "A HIGH DEGREE OF INTERRELATIONSHIP
AMONG THESE SCHOOLS, SO THAT ANY ACTION BY THE BOARD AFFECTING THE
RACIAL COMPOSITION OF ONE WOULD ALMOST CERTAINLY HAVE AN EFFECT ON THE
OTHERS."  303 F.SUPP., AT 294.  AND THERE WAS COGENT EVIDENCE THAT THE
ULTIMATE EFFECT OF THE BOARD'S ACTIONS IN PARK HILL WAS NOT LIMITED TO
THAT AREA:  THE THREE 1969 RESOLUTIONS DESIGNED TO DESEGREGATE THE PARK
HILL SCHOOLS CHANGED THE ATTENDANCE PATTERNS OF AT LEAST 29 SCHOOLS
ATTENDED BY ALMOST ONE-THIRD OF THE PUPILS IN THE DENVER SCHOOL
SYSTEM.  /13/  THIS SUGGESTS THAT THE OFFICIAL SEGREGATION IN PARK HILL
AFFECTED THE RACIAL COMPOSITION OF SCHOOLS THROUGHOUT THE DISTRICT. 

ON THE OTHER HAND, ALTHOUGH THE DISTRICT COURT DID NOT STATE THIS,
OR INDEED ANY, REASON WHY THE PARK HILL FINDING WAS DISREGARDED WHEN
ATTENTION WAS TURNED TO THE CORE CITY SCHOOLS--BEYOND SAYING THAT THE
PARK HILL AND CORE CITY AREAS WERE IN ITS VIEW "DIFFERENT"--THE AREAS,
ALTHOUGH ADJACENT TO EACH OTHER, ARE SEPARATED BY COLORADO BOULEVARD, A
SIX-LANE HIGHWAY.  FROM THE RECORD, IT IS DIFFICULT TO ASSESS THE
ACTUAL SIGNIFICANCE OF COLORADO BOULEVARD TO THE DENVER SCHOOL SYSTEM. 
THE BOULEVARD RUNS THE LENGTH OF THE SCHOOL DISTRICT, BUT AT LEAST TWO
ELEMENTARY SCHOOLS, TELLER AND STEEK, HAVE ATTENDANCE ZONES WHICH CROSS
THE BOULEVARD. 

[[HC205'(ORIGINAL DOCUMENT PAGE 205)'  MOREOVER, THE DISTRICT COURT,
ALTHOUGH REFERRING TO THE BOULEVARD AS "A NATURAL DIVIDING LINE," 303
F.SUPP., AT 282, DID NOT FEEL CONSTRAINED TO LIMIT ITS CONSIDERATION OF
DE JURE SEGREGATION IN THE PARK HILL AREA TO THOSE SCHOOLS EAST OF THE
BOULEVARD.  THE COURT FOUND THAT BY BUILDING BARRETT ELEMENTARY SCHOOL
WEST OF THE BOULEVARD AND BY ESTABLISHING COLORADO BOULEVARD AS THE
EASTERN BOUNDARY OF THE BARRETT ATTENDANCE ZONE, THE BOARD WAS ABLE TO
MAINTAIN FOR A NUMBER OF YEARS THE ANGLO CHARACTER OF THE PARK HILL
SCHOOLS.  THIS SUGGESTS THAT COLORADO BOULEVARD IS NOT TO BE REGARDED
AS THE TYPE OF BARRIER THAT OF ITSELF COULD CONFINE THE IMPACT OF THE
BOARD'S ACTIONS TO AN IDENTIFIABLE AREA OF THE SCHOOL DISTRICT, PERHAPS
BECAUSE A MAJOR HIGHWAY IS GENERALLY NOT SUCH AN EFFECTIVE BUFFER
BETWEEN ADJOINING AREAS.  CF. DAVIS V. BOARD OF SCHOOL COMMISSIONERS OF
MOBILE COUNTY, 402 U.S. 33 (1971).  BUT THIS IS A FACTUAL QUESTION FOR
RESOLUTION BY THE DISTRICT COURT ON REMAND.  IN ANY EVENT, INQUIRY
WHETHER THE DISTRICT COURT AND THE COURT OF APPEALS APPLIED THE CORRECT
LEGAL STANDARDS IN ADDRESSING PETITIONERS' CONTENTION OF DELIBERATE
SEGREGATION IN THE CORE CITY SCHOOLS IS NOT AT AN END EVEN IF IT BE
TRUE THAT PARK HILL MAY BE SEPARATED FROM THE REST OF THE DENVER SCHOOL
DISTRICT AS A SEPARATE, IDENTIFIABLE, AND UNRELATED UNIT. 

III 

THE DISTRICT COURT PROCEEDED ON THE PREMISE THAT THE FINDING AS TO
THE PARK HILL SCHOOLS WAS IRRELEVANT TO THE CONSIDERATION OF THE REST
OF THE DISTRICT, AND BEGAN ITS EXAMINATION OF THE CORE CITY SCHOOLS BY
REQUIRING THAT PETITIONERS PROVE ALL OF THE ESSENTIAL ELEMENTS OF DE
JURE SEGREGATION--THAT IS, STATED SIMPLY, A CURRENT CONDITION OF
SEGREGATION RESULTING FROM INTENTIONAL STATE ACTION DIRECTED
SPECIFICALLY TO THE CORE CITY SCHOOLS.  /14/ 

[[HC206'(ORIGINAL DOCUMENT PAGE 206)'  THE SEGREGATED CHARACTER OF
THE CORE CITY SCHOOLS COULD NOT BE AND IS NOT DENIED.  PETITIONERS'
PROOF SHOWED THAT AT THE TIME OF TRIAL 22 OF THE SCHOOLS IN THE CORE
CITY AREA WERE LESS THAN 30% IN ANGLO ENROLLMENT AND 11 OF THE SCHOOLS
WERE LESS THAN 10% ANGLO.  /15/  PETITIONERS ALSO INTRODUCED
SUBSTANTIAL EVIDENCE DEMONSTRATING THE EXISTENCE OF A DISPROPORTIONATE
RACIAL AND ETHNIC COMPOSITION OF FACULTY AND STAFF AT THESE SCHOOLS. 

ON THE QUESTION OF SEGREGATIVE INTENT, PETITIONERS PRESENTED
EVIDENCE TENDING TO SHOW THAT THE BOARD, THROUGH ITS ACTIONS OVER
SEGREGATED CHARACTER OF THE CORE CITY SCHOOLS.  RESPONDENTS COUNTERED
THIS EVIDENCE BY ARGUING THAT THE SEGREGATION IN THESE SCHOOLS IS THE
RESULT OF A RACIALLY NEUTRAL "NEIGHBORHOOD SCHOOL POLICY" AND THAT THE
ACTS OF WHICH PETITIONERS COMPLAIN ARE EXPLICABLE WITHIN THE BOUNDS OF
THAT POLICY. 

[[HC207'(ORIGINAL DOCUMENT PAGE 207)'  ACCEPTING THE SCHOOL BOARD'S
EXPLANATION, THE DISTRICT COURT AND THE COURT OF APPEALS AGREED THAT A
FINDING OF DE JURE SEGREGATION AS TO THE CORE CITY SCHOOLS WAS NOT
PERMISSIBLE SINCE PETITIONERS HAD FAILED TO PROVE "(1) A RACIALLY
DISCRIMINATORY PURPOSE AND (2) A CAUSAL RELATIONSHIP BETWEEN THE ACTS
COMPLAINED OF AND THE RACIAL IMBALANCE ADMITTEDLY EXISTING IN THOSE
SCHOOLS."  445 F.2D, AT 1006.  THIS ASSESSMENT OF PETITIONERS' PROOF
WAS CLEARLY INCORRECT. 

ALTHOUGH PETITIONERS HAD ALREADY PROVED THE EXISTENCE OF INTENTIONAL
SCHOOL SEGREGATION IN THE PARK HILL SCHOOLS, THIS CRUCIAL FINDING WAS
TOTALLY IGNORED WHEN ATTENTION TURNED TO THE CORE CITY SCHOOLS. 
PLAINLY, A FINDING OF INTENTIONAL SEGREGATION AS TO A PORTION OF A
SCHOOL SYSTEM IF NOT DEVOID OF PROBATIVE VALUE IN ASSESSING THE SCHOOL
AUTHORITIES' INTENT WITH RESPECT TO OTHER PARTS OF THE SAME SCHOOL
SYSTEM.  ON THE CONTRARY, WHERE, AS HERE, THE CASE INVOLVES ONE SCHOOL
BOARD, A FINDING OF INTENTIONAL SEGREGATION ON ITS PART IN ONE PORTION
OF A SCHOOL SYSTEM IS HIGHLY RELEVANT TO THE ISSUE OF THE BOARD'S
INTENT WITH RESPECT TO OTHER SEGREGATED SCHOOLS IN THE SYSTEM.  THIS IS
MERELY AN APPLICATION OF THE WELL-SETTLED EVIDENTIARY PRINCIPLE THAT
"THE PRIOR DOING OF OTHER SIMILAR ACTS, WHETHER CLEARLY A PART OF A
SCHEME OR NOT, IS USEFUL AS REDUCING THE POSSIBILITY THAT THE ACT IN
QUESTION WAS DONE WITH INNOCENT INTENT."  2 J. WIGMORE, EVIDENCE 200
(3D ED. 1940).  "EVIDENCE THAT SIMILAR AND RELATED OFFENSES WERE
COMMITTED . . . TENDS) TO SHOW A CONSISTENT PATTERN OF CONDUCT HIGHLY
RELEVANT TO THE ISSUE OF INTENT."  NYE & NISSEN V. UNITED STATES, 336
U.S. 613, 618 (1949).  SIMILARLY, A FINDING OF ILLICIT INTENT AS TO A
MEANINGFUL PORTION OF THE ITEM UNDER CONSIDERATION HAS SUBSTANTIAL
PROBATIVE VALUE ON THE QUESTION OF ILLICIT INTENT AS TO THE REMAINDER. 
SEE FOR EXAMPLE, THE CASES CITED IN 2 WIGMORE, SUPRA, AT 301 - 302. 

[[HC208'(ORIGINAL DOCUMENT PAGE 208)'  AND "(THE FOREGOING
PRINCIPLES ARE EQUALLY AS APPLICABLE TO CIVIL CASES AS TO CRIMINAL
CASES . . . ."  ID., AT 300.  SEE ALSO C. MCCORMICK, EVIDENCE 329
(1954). 

APPLYING THESE PRINCIPLES IN THE SPECIAL CONTEXT OF SCHOOL
DESEGREGATION CASES, WE HOLD THAT A FINDING OF INTENTIONALLY
SEGREGATIVE SCHOOL BOARD ACTIONS IN A MEANINGFUL PORTION OF A SCHOOL
SYSTEM, AS IN THIS CASE, CREATES A PRESUMPTION THAT OTHER SEGREGATED
SCHOOLING WITHIN THE SYSTEM IS NOT ADVENTITIOUS.  IT ESTABLISHES, IN
OTHER WORDS, A PRIMA FACIE CASE OF UNLAWFUL SEGREGATIVE DESIGN ON THE
PART OF SCHOOL AUTHORITIES, AND SHIFTS TO THOSE AUTHORITIES THE BURDEN
OF PROVING THAT OTHER SEGREGATED SCHOOLS WITHIN THE SYSTEM ARE NOT ALSO
THE RESULT OF INTENTIONALLY SEGREGATIVE ACTIONS.  THIS IS TRUE EVEN IF
IT IS DETERMINED THAT DIFFERENT AREAS OF THE SCHOOL DISTRICT SHOULD BE
VIEWED INDEPENDENTLY OF EACH OTHER BECAUSE, EVEN IN THAT SITUATION,
THERE IS HIGH PROBABILITY THAT WHERE SCHOOL AUTHORITIES HAVE
EFFECTUATED AN INTENTIONALLY SEGREGATIVE POLICY IN A MEANINGFUL PORTION
OF THE SCHOOL SYSTEM, SIMILAR IMPERMISSIBLE CONSIDERATIONS HAVE
MOTIVATED THEIR ACTIONS IN OTHER AREAS OF THE SYSTEM.  WE EMPHASIZE
THAT THE DIFFERENTIATING FACTOR BETWEEN DE JURE SEGREGATION AND SO
CALLED DE FACTO SEGREGATION TO WHICH WE REFERRED IN SWANN /16/  IS
PURPOSE OR INTENT TO SEGREGATE.  WHERE SCHOOL AUTHORITIES HAVE BEEN
FOUND TO HAVE PRACTICED PURPOSEFUL SEGREGATION IN PART OF A SCHOOL
SYSTEM, THEY MAY BE EXPECTED TO OPPOSE SYSTEM-WIDE DESEGREGATION, AS
DID THE RESPONDENTS IN THIS CASE, ON THE GROUND THAT THEIR PURPOSEFULLY
SEGREGATIVE ACTIONS WERE ISOLATED AND INDIVIDUAL EVENTS, THUS LEAVING
PLAINTIFFS WITH THE BURDEN OF PROVING OTHERWISE.  BUT AT THAT POINT
WHERE AN INTENTIONALLY SEGREGATIVE POLICY IS PRACTICED IN A MEANINGFUL
OR SIGNIFICANT SEGMENT OF A SCHOOL SYSTEM, AS IN THE CASE, THE SCHOOL
AUTHORITIES CANNOT BE HEARD TO ARGUE THAT PLAINTIFFS HAVE PROVED ONLY
"ISOLATED AND INDIVIDUAL" UNLAWFULLY SEGREGATIVE ACTIONS. 
[[HC209'(ORIGINAL DOCUMENT PAGE 209)'  IN THAT CIRCUMSTANCE, IT IS BOTH
FAIR AND REASONABLE TO REQUIRE THAT THE SCHOOL AUTHORITIES BEAR THE
BURDEN OF SHOWING THAT THEIR ACTIONS AS TO OTHER SEGREGATED SCHOOLS
WITHIN THE SYSTEM WERE NOT ALSO MOTIVATED BY SEGREGATIVE INTENT. 

THIS BURDEN-SHIFTING PRINCIPLE IS NOT NEW OR NOVEL.  THERE ARE NO
HARD-AND-FAST STANDARDS GOVERNING THE ALLOCATION OF THE BURDEN OF PROOF
IN EVERY SITUATION.  THE ISSUE, RATHER, "IS MERELY A QUESTION OF POLICY
AND FAIRNESS BASED ON EXPERIENCE IN THE DIFFERENT SITUATION."  9 J.
WIGMORE, EVIDENCE ^ 2486, AT 275 (3D ED. 1940).  IN THE CONTEXT OF
RACIAL SEGREGATION IN PUBLIC EDUCATION, THE COURTS, INCLUDING THIS
COURT, HAVE RECOGNIZED A VARIETY OF SITUATIONS IN WHICH "FAIRNESS" AND
"POLICY" REQUIRE STATE AUTHORITIES TO BEAR THE BURDEN OF EXPLAINING
ACTIONS OR CONDITIONS WHICH APPEAR TO BE RACIALLY MOTIVATED.  THUS, IN
SWANN, 402 U.S., AT 18, WE OBSERVED THAT IN A SYSTEM WITH A "HISTORY OF
SEGREGATION," "WHERE IT IS POSSIBLE TO IDENTIFY A 'WHITE SCHOOL' OR A
'NEGRO SCHOOL' SIMPLY BY REFERENCE TO THE RACIAL COMPOSITION OF
TEACHERS AND STAFF, THE QUALITY OF SCHOOL BUILDINGS AND EQUIPMENT, OR
THE ORGANIZATION OF SPORTS ACTIVITIES, A PRIMA FACIE CASE OF VIOLATION
OF SUBSTANTIVE CONSTITUTIONAL RIGHTS UNDER THE EQUAL PROTECTION CLAUSE
IS SHOWN."  AGAIN, IN A SCHOOL SYSTEM WITH A HISTORY OF SEGREGATION,
THE DISCHARGE OF A DISPROPORTIONATELY LARGE NUMBER OF NEGRO TEACHERS
INCIDENT TO DESEGREGATION "THRUSTS) UPON THE SCHOOL BOARD THE BURDEN OF
JUSTIFYING ITS CONDUCT BY CLEAR AND CONVINCING EVIDENCE."  CHAMBERS V.
HENDERSONVILLE CITY BOARD OF EDUCATION, 364 F.2D 189, 192 (CA4 1966)
(EN BANC).  SEE ALSO UNITED STATES V. JEFFERSON COUNTY BOARD OF
EDUCATION, 372 F.2D 836, 887 - 888 (CA5 1966); AFF'D EN BANC, 380 F.2D
385 (1967); NORTH CAROLINA TEACHERS ASSN. V. ASHEBORO CITY BOARD OF
EDUCATION, 393 F.2D 736, 743 (CA4 1968) (EN BANC); WILLIAMS V.
KIMBROUGH, 295 F.SUPP.  578, 585 (WD LA. 1969); BONNER V. TEXAS CITY
INDEPENDENT SCHOOL DISTRICT, 305 F.SUPP.  600, 621 (SD TEX. 1969). 

[[HC210'(ORIGINAL DOCUMENT PAGE 210)'  NOR IS THIS BURDEN-SHIFTING
PRINCIPLE LIMITED TO FORMER STATUTORY DUAL SYSTEMS.  SEE, E. G., DAVIS
V. SCHOOL DISTRICT OF THE CITY OF PONTIAC, 309 F.SUPP.  734, 743, 744
(ED MICH. 1970); AFF'D, 443 F.2D 573 (CA6 1971); UNITED STATES V.
SCHOOL DISTRICT NO. 151, 301 F.SUPP.  201, 228 (ND ILL. 1969), MODIFIED
ON OTHER GROUNDS, 432 F.2D 1147 (CA7 1970).  INDEED, TO SAY THAT A
SYSTEM HAS A "HISTORY OF SEGREGATION" IS MERELY TO SAY THAT A PATTERN
OF INTENTIONAL SEGREGATION HAS BEEN ESTABLISHED IN THE PAST.  THUS, BE
IT A STATUTORY DUAL SYSTEM OR AN ALLEGEDLY UNITARY SYSTEM WHERE A
MEANINGFUL PORTION OF THE SYSTEM IS FOUND TO BE INTENTIONALLY
SEGREGATED, THE EXISTENCE OF SUBSEQUENT OR OTHER SEGREGATED SCHOOLING
WITHIN THE SAME SYSTEM JUSTIFIES A RULE IMPOSING ON THE SCHOOL
AUTHORITIES THE BURDEN OF PROVING THAT THIS SEGREGATED SCHOOLING IS NOT
ALSO THE RESULT OF INTENTIONALLY SEGREGATIVE ACTS. 

IN DISCHARGING THAT BURDEN, IT IS NOT ENOUGH, OF COURSE, THAT THE
SCHOOL AUTHORITIES RELY UPON SOME ALLEGEDLY LOGICAL, RACIALLY NEUTRAL
EXPLANATION FOR THEIR ACTIONS.  THEIR BURDEN IS TO ADDUCE PROOF
SUFFICIENT TO SUPPORT A FINDING THAT SEGREGATIVE INTENT WAS NOT AMONG
THE FACTORS THAT MOTIVATED THEIR ACTIONS.  THE COURTS BELOW ATTRIBUTED
MUCH SIGNIFICANCE TO THE FACT THAT MANY OF THE BOARD'S ACTIONS IN THE
CORE CITY AREA ANTEDATED OUR DECISION IN BROWN.  WE REJECT ANY
SUGGESTION THAT REMOTENESS IN TIME HAS ANY RELEVANCE TO THE ISSUE OF
INTENT.  IF THE ACTIONS OF SCHOOL AUTHORITIES WERE TO ANY DEGREE
MOTIVATED BY SEGREGATIVE INTENT AND THE SEGREGATION RESULTING FROM
THOSE ACTIONS CONTINUES TO EXIST, THE FACT OF REMOTENESS IN TIME
CERTAINLY DOES NOT MAKE THOSE ACTIONS ANY LESS "INTENTIONAL." 

[[HC211'(ORIGINAL DOCUMENT PAGE 211)' 

THIS IS NOT TO SAY, HOWEVER, THAT THE PRIMA FACIE CASE MAY NOT BE
MET BY EVIDENCE SUPPORTING A FINDING THAT A LESSER DEGREE OF SEGREGATED
SCHOOLING IN THE CORE CITY AREA WOULD NOT HAVE RESULTED EVEN IF THE
BOARD HAD NOT ACTED AS IT DID.  IN SWANN, WE SUGGESTED THAT AT SOME
POINT IN TIME THE RELATIONSHIP BETWEEN PAST SEGREGATIVE ACTS AND
PRESENT SEGREGATION MAY BECOME SO ATTENUATED AS TO BE INCAPABLE OF
SUPPORTING A FINDING OF DE JURE SEGREGATION WARRANTING JUDICIAL
INTERVENTION.  402 U.S., AT 31 - 32.  SEE ALSO HOBSON V. HANSEN, 269
F.SUPP.  401, 495 (DC 1967), AFF'D SUB NOM. SMUCK V. HOBSON, 132 U.S.
APP. D. C. 372, 408 F.2D 175 (1969).  /17/  WE MADE IT CLEAR, HOWEVER,
THAT A CONNECTION BETWEEN PAST SEGREGATIVE ACTS AND PRESENT SEGREGATION
MAY BE PRESENT EVEN WHEN NOT APPARENT AND THAT CLOSE EXAMINATION IS
REQUIRED BEFORE CONCLUDING THAT THE CONNECTION DOES NOT EXIST. 
INTENTIONAL SCHOOL SEGREGATION IN THE PAST MAY HAVE BEEN A FACTOR IN
CREATING A NATURAL ENVIRONMENT FOR THE GROWTH OF FURTHER SEGREGATION. 
THUS, IF RESPONDENT SCHOOL BOARD CANNOT DISPROVE SEGREGATIVE INTENT, IT
CAN REBUT THE PRIMA FACIE CASE ONLY BY SHOWING THAT ITS PAST
SEGREGATIVE ACTS DID NOT CREATE OR CONTRIBUTE TO THE CURRENT SEGREGATED
CONDITION OF THE CORE CITY SCHOOLS. 

THE RESPONDENT SCHOOL BOARD INVOKED AT TRIAL ITS "NEIGHBORHOOD
SCHOOL POLICY" AS EXPLAINING RACIAL AND ETHNIC CONCENTRATIONS WITHIN
THE CORE CITY SCHOOLS, ARGUING THAT SINCE THE CORE CITY POPULATION HAD
LONG BEEN NEGRO AND HISPANO, THE CONCENTRATIONS WERE NECESSARILY THE
RESULT OF RESIDENTIAL PATTERNS AND NOT OF PURPOSEFULLY SEGREGATIVE
POLICIES. 

[[HC212'(ORIGINAL DOCUMENT PAGE 212)'  WE HAVE NO OCCASION TO
CONSIDER IN THIS CASE WHETHER A "NEIGHBORHOOD SCHOOL POLICY" OF ITSELF
WILL JUSTIFY RACIAL OR ETHNIC CONCENTRATIONS IN THE ABSENCE OF A
FINDING THAT SCHOOL AUTHORITIES HAVE COMMITTED ACTS CONSTITUTING DE
JURE SEGREGATION.  IT IS ENOUGH THAT WE HOLD THAT THE MERE ASSERTION OF
SUCH A POLICY IS NOT DISPOSITIVE WHERE, AS IN THIS CASE, THE SCHOOL
AUTHORITIES HAVE BEEN FOUND TO HAVE PRACTICED DE JURE SEGREGATION IN A
MEANINGFUL PORTION OF THE SCHOOL SYSTEM BY TECHNIQUES THAT INDICATE
THAT THE "NEIGHBORHOOD SCHOOL"  CONCEPT HAS NOT BEEN MAINTAINED FREE OF
MANIPULATION.  OUR OBSERVATIONS IN SWANN, SUPRA, AT 28, ARE
PARTICULARLY INSTRUCTIVE ON THIS SCORE: 

     "ABSENT A CONSTITUTIONAL VIOLATION THERE WOULD BE NO BASIS FOR

  JUDICIALLY ORDERING ASSIGNMENT OF STUDENTS ON A RACIAL BASIS. 

ALL THINGS BEING EQUAL, WITH NO HISTORY OF DISCRIMINATION, IT

  MIGHT WELL BE DESIRABLE TO ASSIGN PUPILS TO SCHOOLS NEAREST THEIR

  HOMES.  BUT ALL THINGS ARE NOT EQUAL IN A SYSTEM THAT HAS BEEN

  DELIBERATELY CONSTRUCTED AND MAINTAINED TO ENFORCE RACIAL

  SEGREGATION.  . . . 

     ". . . 'RACIALLY NEUTRAL' ASSIGNMENT PLANS PROPOSED BY SCHOOL

  AUTHORITIES TO A DISTRICT COURT MAY BE INADEQUATE; SUCH PLANS MAY

  FAIL TO COUNTERACT THE CONTINUING EFFECTS OF PAST SCHOOL

  SEGREGATION RESULTING FROM DISCRIMINATORY LOCATION OF SCHOOL

  SITES OR DISTORTION OF SCHOOL SIZE IN ORDER TO ACHIEVE OR

  MAINTAIN AN ARTIFICIAL RACIAL SEPARATION.  WHEN SCHOOL

  AUTHORITIES PRESENT A DISTRICT COURT WITH A 'LOADED GAME BOARD,'

  AFFIRMATIVE ACTION IN THE FORM OF REMEDIAL ALTERING OF ATTENDANCE

  ZONES IS PROPER TO ACHIEVE TRULY NONDISCRIMINATORY ASSIGNMENTS. 

  IN SHORT, AN ASSIGNMENT PLAN IS NOT ACCEPTABLE SIMPLY BECAUSE IT

  APPEARS TO BE NEUTRAL." 

THUS, RESPONDENT SCHOOL BOARD HAVING BEEN FOUND TO HAVE PRACTICED
DELIBERATE RACIAL SEGREGATION IN SCHOOLS ATTENDED BY OVER ONE-THIRD OF
THE NEGRO SCHOOL POPULATION, THAT CRUCIAL FINDING ESTABLISHES A PRIMA
FACIE CASE OF INTENTIONAL SEGREGATION IN THE CORE CITY SCHOOLS. 

[[HC213'(ORIGINAL DOCUMENT PAGE 213)'  IN SUCH CASE, RESPONDENT'S
NEIGHBORHOOD SCHOOL POLICY IS NOT TO BE DETERMINATIVE "SIMPLY BECAUSE
IT APPEARS TO BE NEUTRAL." 

        IV 

IN SUMMARY, THE DISTRICT COURT ON REMAND, FIRST, WILL AFFORD
RESPONDENT SCHOOL BOARD THE OPPORTUNITY TO PROVE ITS CONTENTION THAT
THE PARK HILL AREA IS A SEPARATE IDENTIFIABLE AND UNRELATED SECTION OF
THE SCHOOL DISTRICT THAT SHOULD BE TREATED AS ISOLATED FROM THE REST OF
THE DISTRICT.  IF RESPONDENT SCHOOL BOARD FAILS TO PROVE THAT
CONTENTION, THE DISTRICT COURT, SECOND, WILL DETERMINE WHETHER
RESPONDENT SCHOOL BOARD'S CONDUCT OVER ALMOST A DECADE AFTER 1960 IN
CARRYING OUT A POLICY OF DELIBERATE RACIAL SEGREGATION IN THE PARK HILL
SCHOOLS CONSTITUTES THE ENTIRE SCHOOL SYSTEM A DUAL SCHOOL SYSTEM.  IF
THE DISTRICT COURT DETERMINES THAT THE DENVER SCHOOL SYSTEM IS A DUAL
SCHOOL SYSTEM, RESPONDENT SCHOOL BOARD HAS THE AFFIRMATIVE DUTY TO
DESEGREGATE THE ENTIRE SYSTEM "ROOT AND BRANCH."  GREEN V. COUNTY
SCHOOL BOARD, 391 U.S., AT 438.  IF THE DISTRICT COURT DETERMINES,
HOWEVER, THAT THE DENVER SCHOOL SYSTEM IS NOT A DUAL SCHOOL SYSTEM BY
REASON OF THE BOARD'S ACTIONS IN PARK HILL, THE COURT, THIRD, WILL
AFFORD RESPONDENT SCHOOL BOARD THE OPPORTUNITY TO REBUT PETITIONERS'
PRIMA FACIE CASE OF INTENTIONAL SEGREGATION IN THE CORE CITY SCHOOLS
RAISED BY THE FINDING OF INTENTIONAL SEGREGATION IN THE PARK HILL
SCHOOLS.  THERE, THE BOARD'S BURDEN IS TO SHOW THAT ITS POLICIES AND
PRACTICES WITH RESPECT TO SCHOOLSITE LOCATION, SCHOOL SIZE, SCHOOL
RENOVATIONS AND ADDITIONS, STUDENT-ATTENDANCE ZONES, STUDENT ASSIGNMENT
AND TRANSFER OPTIONS, MOBILE CLASSROOM UNITS, TRANSPORTATION OF
STUDENTS, ASSIGNMENT OF FACULTY AND STAFF, ETC., CONSIDERED TOGETHER
AND PREMISED ON THE BOARD'S SO-CALLED "NEIGHBORHOOD SCHOOL" CONCEPT,
EITHER WERE NOT TAKEN IN EFFECTUATION OF A POLICY TO CREATE OR MAINTAIN
SEGREGATION IN THE CORE CITY SCHOOLS, OR, IF UNSUCCESSFUL IN THAT
EFFORT, WERE NOT FACTORS IN CAUSING THE EXISTING CONDITION OF
SEGREGATION IN THESE SCHOOLS. 

[[HC214'(ORIGINAL DOCUMENT PAGE 214)'  CONSIDERATIONS OF "FAIRNESS"
AND "POLICY" DEMAND NO LESS IN LIGHT OF THE BOARD'S INTENTIONALLY
SEGREGATIVE ACTIONS.  IF RESPONDENT BOARD FAILS TO REBUT PETITIONERS'
PRIMA FACIE CASE, THE DISTRICT COURT MUST, AS IN THE CASE OF PARK HILL,
DECREE ALL-OUT DESEGREGATION OF THE CORE CITY SCHOOLS. 

THE JUDGMENT OF THE COURT OF APPEALS IS MODIFIED TO VACATE INSTEAD
OF REVERSE THE PART OF THE FINAL DECREE THAT CONCERN THE CORE CITY
SCHOOLS, AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  /18/

              IT IS SO ORDERED. 

/1/  TO THE CONTRARY, ART. IX, ^ 8, OF THE COLORADO CONSTITUTION
EXPRESSLY PROHIBITS ANY "CLASSIFICATION OF PUPILS . . . ON ACCOUNT OF
RACE OR COLOR."  AS EARLY AS 1927, THE COLORADO SUPREME COURT HELD THAT
A DENVER PRACTICE OF EXCLUDING BLACK STUDENTS FROM SCHOOL PROGRAMS AT
MANUAL HIGH SCHOOL AND MOREY JUNIOR HIGH SCHOOL VIOLATED STATE LAW. 
JONES V. NEWLON, 81 COLO. 25, 253 P. 386. 

/2/  THERE WERE 92 ELEMENTARY SCHOOLS, 15 JUNIOR HIGH SCHOOLS, 2
JUNIOR-SENIOR HIGH SCHOOLS, AND 7 SENIOR HIGH SCHOOLS.  IN ADDITION,
THE BOARD OPERATES AN OPPORTUNITY SCHOOL, A METROPOLITAN YOUTH
EDUCATION CENTER, AND AN AIRCRAFT TRAINING FACILITY. 

/3/  THE SO-CALLED "PARK HILL SCHOOLS" ARE BARRETT, STEDMAN,
HALLETT, SMITH, PHILLIPS, AND PARK HILL ELEMENTARY SCHOOLS; AND SMILEY
JUNIOR HIGH SCHOOL.  EAST HIGH SCHOOL SERVES THE AREA BUT IS LOCATED
OUTSIDE OF IT.  (SEE MAP FOLLOWING P. 214.) 

/4/  THE SO-CALLED "CORE CITY SCHOOLS" WHICH ARE SAID TO BE
SEGREGATED ARE BOULEVARD, BRYANT-WEBSTER, COLUMBINE, CROFTON, EBERT,
ELMWOOD, ELYRIA, FAIRMONT, FAIRVIEW, GARDEN PLACE, GILPIN, GREENLEE,
HARRINGTON, MITCHELL, SMEDLEY, SWANSEA, WHITTIER, WYATT, AND WYMAN
ELEMENTARY SCHOOLS; BAKER, COLE, AND MOREY JUNIOR HIGH SCHOOLS; AND
EAST, WEST, AND MANUAL HIGH SCHOOLS.  (SEE MAP FOLLOWING P. 214.) 

/5/  THE FIRST OF THE DISTRICT COURT'S FOUR OPINIONS, 303 F.SUPP. 
279, WAS FILED JULY 31, 1969, AND GRANTED PETITIONERS'  APPLICATION FOR
A PRELIMINARY INJUNCTION.  THE SECOND OPINION, 303 F.SUPP, 289, WAS
FILED AUGUST 14, 1969, AND MADE SUPPLEMENTAL FINDINGS AND CONCLUSIONS. 
THE THIRD OPINION, 313 F.SUPP.  61, FILED MARCH 21, 1970, WAS THE
OPINION ON THE MERITS.  THE FOURTH OPINION, 313 F.SUPP.  90, WAS ON
REMEDY AND WAS FILED MAY 21, 1970.  THE DISTRICT COURT FILED AN
UNREPORTED OPINION ON OCTOBER 19, 1971, IN WHICH RELIEF WAS EXTENDED TO
HALLETT AND STEDMAN ELEMENTARY SCHOOLS WHICH WERE FOUND BY THE COURT IN
ITS JULY 31, 1969, OPINION TO BE PURPOSEFULLY SEGREGATED BUT WERE NOT
INCLUDED WITHIN THE SCOPE OF THE THREE 1969 BOARD RESOLUTIONS.  THE
COURT OF APPEALS FILED FIVE UNREPORTED OPINIONS:  ON AUGUST 5, 1969,
VACATING PRELIMINARY INJUNCTIONS; ON AUGUST 27, 1969, STAYING
PRELIMINARY INJUNCTION; ON SEPTEMBER 15, 1969, ON MOTION TO AMEND STAY;
ON OCTOBER 17, 1969, DENYING MOTIONS TO DISMISS; AND ON MARCH 26, 1972,
GRANTING STAY.  MR. JUSTICE BRENNAN, ON AUGUST 29, 1969, FILED AN
OPINION REINSTATING PRELIMINARY INJUNCTION, 396 U.S. 1215, AND ON APRIL
26, 1971, THIS COURT ENTERED A PER CURIAM ORDER VACATING THE COURT OF
APPEALS' STAY, 402 U.S. 182. 

/6/  THE PARTIES HAVE USED THE TERMS "ANGLO," "NEGRO," AND "HISPANO"
THROUGHOUT THE RECORD.  WE SHALL THEREFORE USE THOSE TERMS. 

"HISPANO" IS THE TERM USED BY THE COLORADO DEPARTMENT OF EDUCATION
TO REFER TO A PERSON OF SPANISH, MEXICAN, OR CUBAN HERITAGE.  COLORADO
DEPARTMENT OF EDUCATION, HUMAN RELATIONS IN COLORADO, A HISTORICAL
RECORD 203 (1968).  IN THE SOUTHWEST, THE "HISPANOS" ARE MORE COMMONLY
REFERRED TO AS "CHICANOS" OR "MEXICAN-AMERICANS." 

THE MORE SPECIFIC RACIAL AND ETHNIC COMPOSITION OF THE DENVER PUBLIC
SCHOOLS IS AS FOLLOWS:  TABLE OMITTED. 

/7/  UNITED STATES COMMISSION ON CIVIL RIGHTS, MEXICAN AMERICAN
EDUCATION STUDY, REPORT 1, ETHNIC ISOLATION OF MEXICAN AMERICANS IN THE
PUBLIC SCHOOLS OF THE SOUTHWEST (APR. 1971); UNITED STATES COMMISSION
ON CIVIL RIGHTS, MEXICAN AMERICAN EDUCATIONAL SERIES, REPORT 2, THE
UNFINISHED EDUCATION (OCT. 1971).     /8/  THE COMMISSION'S SECOND
REPORT, ON P. 41, SUMMARIZES ITS FINDINGS: 

"THE BASIC FINDING OF THIS REPORT IS THAT MINORITY STUDENTS IN THE
SOUTHWEST--MEXICAN AMERICANS, BLACKS, AMERICAN INDIANS--DO NOT OBTAIN
THE BENEFITS OF PUBLIC EDUCATION AT A RATE EQUAL TO THAT OF THEIR ANGLO
CLASSMATES." 

/9/  OUR BROTHER REHNQUIST ARGUES IN DISSENT THAT THE COURT SOMEHOW
TRANSGRESSES THE "TWO-COURT RULE.  POST, AT 264.  BUT AT THIS STAGE, WE
HAVE NO OCCASION TO REVIEW THE FACTUAL FINDINGS CONCURRED IN BY THE TWO
COURTS BELOW.  CF. NEIL V. BIGGERS, 409 U.S. 188 (1972).  WE ADDRESS
ONLY THE QUESTION WHETHER THOSE COURTS APPLIED THE CORRECT LEGAL
STANDARD IN DECIDING THE CASE AS IT AFFECTS THE CORE CITY SCHOOLS. 

/10/  THE BOARD WAS FOUND GUILTY OF INTENTIONALLY SEGREGATIVE ACTS
OF ONE KIND OR ANOTHER WITH RESPECT TO THE SCHOOLS LISTED BELOW.  (AS
TO COLE AND EAST, THE CONCLUSION RESTS ON THE DECISION OF THE
RESOLUTION.)  (TABLE OMITTED) 

/11/  OUR BROTHER REHNQUIST ARGUES IN DISSENT THAT BROWN V. BOARD OF
EDUCATION DID NOT IMPOSE AN "AFFIRMATIVE DUTY TO INTEGRATE" THE SCHOOLS
OF A DUAL SYSTEM BUT WAS ONLY A "PROHIBITION AGAINST DISCRIMINATION"
"IN THE SENSE THAT THE ASSIGNMENT OF A CHILD TO A PARTICULAR SCHOOL IS
NOT MADE TO DEPEND ON HIS RACE . . . ."  INFRA, AT 258.  THAT IS THE
INTERPRETATION OF BROWN EXPRESSED 18 YEARS AGO BY A THREE-JUDGE COURT
IN BRIGGS V. ELLIOTT, 132 F.SUPP.  776, 777 (1955):  "THE CONSTITUTION,
IN OTHER WORDS, DOES NOT REQUIRE INTEGRATION.  IT MERELY FORBIDS
DISCRIMINATION."  BUT GREEN V. COUNTY SCHOOL BOARD, 391 U.S. 430, 437 -
438 (1968), REJECTED THAT INTERPRETATION INSOFAR AS GREEN EXPRESSLY
HELD THAT "SCHOOL BOARDS . . . OPERATING STATE-COMPELLED DUAL SYSTEMS
WERE NEVERTHELESS CLEARLY CHARGED (BY BROWN II) WITH THE AFFIRMATIVE
DUTY TO TAKE WHATEVER STEPS MIGHT BE NECESSARY TO CONVERT TO A UNITARY
SYSTEM IN WHICH RACIAL DISCRIMINATION WOULD BE ELIMINATED ROOT AND
BRANCH."  GREEN REMAINS THE GOVERNING PRINCIPLE.  ALEXANDER V. HOLMES
COUNTY BOARD OF EDUCATION, 396 U.S. 19 (1969); SWANN V. CHARLOTTE
MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1, 15 (1971).  SEE ALSO KELLEY
V. METROPOLITAN COUNTY BOARD OF EDUCATION, 317 F.SUPP.  980, 984
(1970). 

/12/  AS A FORMER SCHOOL BOARD PRESIDENT WHO TESTIFIED FOR THE
RESPONDENTS PUT IT:  "ONCE YOU CHANGE THE BOUNDARY OF ANY ONE SCHOOL,
IT IS AFFECTING ALL THE SCHOOLS . . . ."  TESTIMONY OF MRS. LOIS HEATH
JOHNSON ON CROSS-EXAMINATION.  APP. 951A - 952A. 

SIMILARLY, JUDGE WILSON HAS RECENTLY STATED:  "INFECTION AT ONE
SCHOOL INFECTS ALL SCHOOLS.  TO TAKE THE MOST SIMPLE EXAMPLE, IN A TWO
SCHOOL SYSTEM, ALL BLACKS AT ONE SCHOOL MEANS ALL OR ALMOST ALL WHITES
AT THE OTHER."  UNITED STATES V. TEXAS EDUCATION AGENCY, 467 F.2D 848,
888 (CA5 1972). 

/13/  SEE THE CHART AT 455 F.2D, AT 1008 - 1009, WHICH INDICATES
THAT 31,767 PUPILS ATTENDED THE SCHOOLS AFFECTED BY THE RESOLUTIONS. 

/14/  OUR BROTHER REHNQUIST ARGUES IN DISSENT THAT THE DISTRICT
COURT DID TAKE THE PARK HILL FINDING INTO ACCOUNT IN ADDRESSING THE
QUESTION OF ALLEGED DE JURE SEGREGATION OF THE CORE CITY SCHOOLS. 
POST, AT 262.  HE CITES THE FOLLOWING EXCERPT FROM A FOOTNOTE TO THE
DISTRICT COURT'S OPINION OF MARCH 21, 1970, 313 F.SUPP., AT 74 - 75, N.
18:  "ALTHOUGH PAST DISCRIMINATORY ACTS MAY NOT BE A SUBSTANTIAL FACTOR
CONTRIBUTING TO PRESENT SEGREGATION, THEY MAY NEVERTHELESS BE PROBATIVE
ON THE ISSUE OF THE SEGREGATIVE PURPOSE OF OTHER DISCRIMINATORY ACTS
WHICH ARE IN FACT A SUBSTANTIAL FACTOR IN CAUSING A PRESENT SEGREGATED
SITUATION."  BUT OUR BROTHER REHNQUIST OMITS THE REST OF THE FOOTNOTE:
"THUS, IN PART I OF THIS OPINION, WE DISCUSSED THE BUILDING BARRETT,
BOUNDARY CHANGES AND THE USE OF MOBILE UNITS AS THEY RELATE TO THE
PURPOSE FOR THE RESCISSION OF RESOLUTIONS 1520, 1524 AND 1531." 
OBVIOUSLY, THE DISTRICT COURT WAS CAREFULLY LIMITING THE COMMENT TO THE
CONSIDERATION BEING GIVEN PAST DISCRIMINATORY ACTS AFFECTING THE PARK
HILL SCHOOLS IN ASSESSING THE CAUSES OF CURRENT SEGREGATION OF THOSE
SCHOOLS. 

/15/  IN ADDITION TO THESE 22 SCHOOLS, SEE 313 F.SUPP., AT 78, TWO
MORE SCHOOLS, ELYRIA AND SMEDELY ELEMENTARY SCHOOLS, BECAME LESS THAN
30% ANGLO AFTER THE DISTRICT COURT'S DECISION ON THE MERITS.  THESE TWO
SCHOOLS WERE THUS INCLUDED IN THE LIST OF SEGREGATED SCHOOLS.  313
F.SUPP., AT 92. 

/16/  402 U.S. 1, 17 - 18 (1971). 

/17/  IT MAY BE THAT THE DISTRICT COURT AND COURT OF APPEALS WERE
APPLYING THIS TEST IN HOLDING THAT PETITIONERS HAD FAILED TO PROVE THAT
THE BOARD'S ACTIONS "CAUSED" THE CURRENT CONDITION OF SEGREGATION IN
THE CORE CITY SCHOOLS.  BUT, IF SO, CERTAINLY PLAINTIFFS IN A SCHOOL
DESEGREGATION CASE ARE NOT REQUIRED TO PROVE "CAUSE" IN THE SENSE OF
"NON-ATTENUATION."  THAT IS A FACTOR WHICH BECOMES RELEVANT ONLY AFTER
PAST INTENTIONAL ACTIONS RESULTING IN SEGREGATION HAVE BEEN
ESTABLISHED.  AT THAT STAGE, THE BURDEN BECOMES THE SCHOOL AUTHORITIES'
TO SHOW THAT THE CURRENT SEGREGATION IS IN NO WAY THE RESULT OF THOSE
PAST SEGREGATIVE ACTIONS. 

/18/  WE THEREFORE DO NOT REACH, AND INTIMATE NO VIEW UPON, THE
MERITS OF THE HOLDING OF THE DISTRICT COURT, PREMISED UPON ITS
ERRONEOUS FINDING THAT THE SITUATION "IS MORE LIKE DE FACTO
SEGREGATION,"  313 F.SUPP., AT 73, THAT NEVERTHELESS, ALTHOUGH ALL-OUT
DESEGREGATION "COULD NOT BE DECREED . . . THE ONLY FEASIBLE AND
CONSTITUTIONALLY ACCEPTABLE PROGRAM . . . IS A SYSTEM OF DESEGREGATION
AND INTEGRATION WHICH PROVIDES COMPENSATORY EDUCATION IN AN INTEGRATED
ENVIRONMENT."  ID., AT 96. 

[[DOP 

MR. CHIEF JUSTICE BURGER CONCURS IN THE RESULT. 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS. 

WHILE I JOIN THE OPINION OF THE COURT, I AGREE WITH MY BROTHER
POWELL THAT THERE IS, FOR THE PURPOSE OF THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT AS APPLIED TO THE SCHOOL CASES, NO DIFFERENCE
BETWEEN DE FACTO AND DE JURE SEGREGATION. 

[[HC215'(ORIGINAL DOCUMENT PAGE 215)'  MAP OMITTED.  THE SCHOOL
BOARD IS A STATE AGENCY AND THE LINES THAT IT DRAWS, THE LOCATIONS IT
SELECTS FOR SCHOOL SITES, THE ALLOCATION IT MAKES OF STUDENTS, THE
BUDGETS IT PREPARES ARE STATE ACTION FOR FOURTEENTH AMENDMENT
PURPOSES. 

AS JUDGE WISDOM COGENTLY STATED IN UNITED STATES V. TEXAS EDUCATION
AGENCY, 467 F.2D 848, SEGREGATED SCHOOLS ARE OFTEN CREATED, NOT BY DUAL
SCHOOL SYSTEMS DECREED BY THE LEGISLATURE, BUT BY THE ADMINISTRATION OF
SCHOOL DISTRICTS BY SCHOOL BOARDS.  EACH IS STATE ACTION WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT.  "HERE SCHOOL AUTHORITIES ASSIGNED
STUDENTS, FACULTY, AND PROFESSIONAL STAFF; EMPLOYED FACULTY AND STAFF;
CHOSE SITES FOR SCHOOLS; CONSTRUCTED NEW SCHOOLS AND RENOVATED OLD
ONES; AND DREW ATTENDANCE ZONE LINES.  THE NATURAL AND FORESEEABLE
CONSEQUENCE OF THESE ACTIONS WAS SEGREGATION OF MEXICAN-AMERICANS. 
AFFIRMATIVE ACTION TO THE CONTRARY WOULD HAVE RESULTED IN
DESEGREGATION.  WHEN SCHOOL AUTHORITIES, BY THEIR ACTIONS, CONTRIBUTE
TO SEGREGATION IN EDUCATION, WHETHER BY CAUSING ADDITIONAL SEGREGATION
OR MAINTAINING EXISTING SEGREGATION, THEY DENY TO THE STUDENTS EQUAL
PROTECTION OF THE LAWS. 

WE NEED NOT DEFINE THE QUANTITY OF STATE PARTICIPATION WHICH IS A
PREREQUISITE TO A FINDING OF CONSTITUTIONAL VIOLATION.  LIKE THE LEGAL
CONCEPTS OF 'THE REASONABLE MAN,' 'DUE CARE,' 'CAUSATION,'
'PREPONDERANCE OF THE EVIDENCE,' AND 'BEYOND A REASONABLE DOUBT,' THE
NECESSARY DEGREE OF STATE INVOLVEMENT IS INCAPABLE OF PRECISE
DEFINITION AND MUST BE DEFINED ON A CASE-BY-CASE BASIS.  SUFFICE IT TO
SAY THAT SCHOOL AUTHORITIES HERE PLAYED A SIGNIFICANT ROLE IN CAUSING
OR PERPETUATING UNEQUAL EDUCATIONAL OPPORTUNITIES FOR MEXICAN
AMERICANS, AND DID SO ON A SYSTEM-WIDE BASIS."  ID., AT 863 - 864. 

THE LATTER ACTS ARE OFTEN SAID TO CREATE A DE FACTO AS CONTRASTED
WITH DE JURE SEGREGATION. 

[[HC216'(ORIGINAL DOCUMENT PAGE 216)'  BUT, AS JUDGE WISDOM
OBSERVES, EACH IS BUT ANOTHER FORM OF DE JURE SEGREGATION. 

I THINK IT IS TIME TO STATE THAT THERE IS NO CONSTITUTIONAL
DIFFERENCE BETWEEN DE JURE AND DE FACTO SEGREGATION, FOR EACH IS THE
PRODUCT OF STATE ACTIONS OR POLICIES.  IF A "NEIGHBORHOOD" OR
"GEOGRAPHICAL" UNIT HAS BEEN CREATED ALONG RACIAL LINES BY REASON OF
THE PLAY OF RESTRICTIVE COVENANTS THAT RESTRICT CERTAIN AREAS TO "THE
ELITE," LEAVING THE "UNDESIRABLES" TO MOVE ELSEWHERE, THERE IS STATE
ACTION IN THE CONSTITUTIONAL SENSE BECAUSE THE FORCE OF LAW IS PLACED
BEHIND THOSE COVENANTS. 

THERE IS STATE ACTION IN THE CONSTITUTIONAL SENSE WHEN PUBLIC FUNDS
ARE DISPERSED BY URBAN DEVELOPMENT AGENCIES TO BUILD RACIAL GHETTOES. 

WHERE THE SCHOOL DISTRICT IS RACIALLY MIXED AND THE RACES ARE
SEGREGATED IN SEPARATE SCHOOLS, WHERE BLACK TEACHERS ARE ASSIGNED
ALMOST EXCLUSIVELY TO BLACK SCHOOLS, WHERE THE SCHOOL BOARD CLOSED
EXISTING SCHOOLS LOCATED IN FRINGE AREAS AND BUILT NEW SCHOOLS IN BLACK
AREAS AND IN DISTANT WHITE AREAS, WHERE THE SCHOOL BOARD CONTINUED THE
"NEIGHBORHOOD" SCHOOL POLICY AT THE ELEMENTARY LEVEL, THESE ACTIONS
CONSTITUTE STATE ACTION.  THEY ARE OF A KIND QUITE DISTINCT FROM THE
CLASSICAL DE JURE TYPE OF SCHOOL SEGREGATION.  YET CALLING THEM DE
FACTO IS A MISNOMER, AS THEY ARE ONLY MORE SUBTLE TYPES OF STATE ACTION
THAT CREATE OR MAINTAIN A WHOLLY OR PARTIALLY SEGREGATED SCHOOL
SYSTEM.  SEE KELLY V. GUINN, 456 F.2D 100. 

WHEN A STATE FORCES, AIDS, OR ABETS, OR HELPS CREATE A RACIAL
"NEIGHBORHOOD," IT IS A TRAVESTY OF JUSTICE TO TREAT THAT NEIGHBORHOOD
AS SACROSANCT IN THE SENSE THAT ITS CREATION IS FREE FROM THE TAINT OF
STATE ACTION. 

THE CONSTITUTION AND BILL OF RIGHTS HAVE DESCRIBED THE DESIGN OF A
PLURALISTIC SOCIETY.  THE INDIVIDUAL HAS THE RIGHT TO SEEK SUCH
COMPANIONS AS HE DESIRES. 

[[HC217'(ORIGINAL DOCUMENT PAGE 217)'  BUT A STATE IS BARRED FROM
CREATING BY ONE DEVICE OR ANOTHER GHETTOES THAT DETERMINE THE SCHOOL
ONE IS COMPELLED TO ATTEND. 

[[DOP 

MR. JUSTICE POWELL CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN THE REMAND OF THIS CASE FOR FURTHER PROCEEDINGS IN THE
DISTRICT COURT, BUT ON GROUNDS THAT DIFFER FROM THOSE RELIED UPON BY
THE COURT. 

THIS IS THE FIRST SCHOOL DESEGREGATION CASE TO REACH THIS COURT
WHICH INVOLVES A MAJOR CITY OUTSIDE THE SOUTH.  IT COMES FROM DENVER,
COLORADO, A CITY AND A STATE WHICH HAVE NOT OPERATED PUBLIC SCHOOLS
UNDER CONSTITUTIONAL OR STATUTORY PROVISIONS WHICH MANDATED OR
PERMITTED RACIAL SEGREGATION.  /1/  NOR HAS IT BEEN ARGUED THAT ANY
OTHER LEGISLATIVE ACTIONS (SUCH AS ZONING AND HOUSING LAWS) CONTRIBUTED
TO THE SEGREGATION WHICH IS AT ISSUE.  /2/  THE COURT HAS INQUIRED ONLY
TO WHAT EXTENT THE DENVER PUBLIC SCHOOL AUTHORITIES MAY HAVE
CONTRIBUTED TO THE SCHOOL SEGREGATION WHICH IS ACKNOWLEDGED TO EXIST IN
DENVER. 

THE PREDOMINANTLY MINORITY SCHOOLS ARE LOCATED IN TWO AREAS OF THE
CITY REFERRED TO AS PARK HILL AND THE CORE CITY AREA.  THE DISTRICT
COURT CONSIDERED THAT A SCHOOL WITH A CONCENTRATION OF 70% TO 75%
"NEGRO OR HISPANO STUDENTS" WAS IDENTIFIABLE AS A SEGREGATED SCHOOL. 

[[HC218'(ORIGINAL DOCUMENT PAGE 218)'  313 F.SUPP.  61, 77. 
WHEREVER ONE MAY DRAW THIS LINE, IT IS UNDISPUTED THAT MOST OF THE
SCHOOLS IN THESE TWO AREAS ARE IN FACT HEAVILY SEGREGATED IN THE SENSE
THAT THEIR STUDENT BODIES ARE OVERWHELMINGLY COMPOSED OF NON-ANGLO
CHILDREN.  THE CITY-WIDE SCHOOL MIX IN DENVER IS 66% ANGLO, 14% NEGRO,
AND 20% HISPANO.  IN AREAS OF THE CITY WHERE THE ANGLO POPULATION
LARGELY RESIDES, THE SCHOOLS ARE PREDOMINANTLY ANGLO, IF NOT ENTIRELY
SO. 

THE SITUATION IN DENVER IS GENERALLY COMPARABLE TO THAT IN OTHER
LARGE CITIES ACROSS THE COUNTRY IN WHICH THERE IS A SUBSTANTIAL
MINORITY POPULATION AND WHERE DESEGREGATION HAS NOT BEEN ORDERED BY THE
FEDERAL COURTS.  THERE IS SEGREGATION IN THE SCHOOLS OF MANY OF THESE
CITIES FULLY AS PERVASIVE AS THAT IN SOUTHERN CITIES PRIOR TO THE
DESEGREGATION DECREES OF THE PAST DECADE AND A HALF.  THE FOCUS OF THE
SCHOOL DESEGREGATION PROBLEM HAS NOW SHIFTED FROM THE SOUTH TO THE
COUNTRY AS A WHOLE.  UNWILLING AND FOOTDRAGGING AS THE PROCESS WAS IN
MOST PLACES, SUBSTANTIAL PROGRESS TOWARD ACHIEVING INTEGRATION HAS BEEN
MADE IN SOUTHERN STATES.  /3/  NO COMPARABLE PROGRESS HAS BEEN MADE IN
MANY NONSOUTHERN CITIES WITH LARGE MINORITY POPULATIONS /4/  PRIMARILY
BECAUSE OF THE DE FACTO/DE JURE DISTINCTION NURTURED BY THE COURTS AND
ACCEPTED COMPLACENTLY BY MANY OF THE SAME VOICES WHICH DENOUNCED THE
EVILS OF SEGREGATED SCHOOLS IN THE SOUTH.  /5/ 

[[HC219'(ORIGINAL DOCUMENT PAGE 219)'  BUT IF OUR NATIONAL CONCERN
IS FOR THOSE WHO ATTEND SUCH SCHOOLS, RATHER THAN FOR PERPETUATING A
LEGALISM ROOTED IN HISTORY RATHER THAN PRESENT REALITY, WE MUST
RECOGNIZE THAT THE EVIL OF OPERATING SEPARATE SCHOOLS IS NO LESS IN
DENVER THAN IN ATLANTA. 

        I 

IN MY VIEW WE SHOULD ABANDON A DISTINCTION WHICH LONG SINCE HAS
OUTLIVED ITS TIME, AND FORMULATE CONSTITUTIONAL PRINCIPLES OF NATIONAL
RATHER THAN MERELY REGIONAL APPLICATION.  WHEN BROWN V. BOARD OF
EDUCATION, 347 U.S. 483 (1954) (BROWN I), WAS DECIDED, THE DISTINCTION
BETWEEN DE JURE AND DE FACTO SEGREGATION WAS CONSISTENT WITH THE
LIMITED CONSTITUTIONAL RATIONALE OF THAT CASE. 

[[HC220'(ORIGINAL DOCUMENT PAGE 220)'  THE SITUATION CONFRONTING THE
COURT, LARGELY CONFINED TO THE SOUTHERN STATES, WAS OFFICIALLY IMPOSED
RACIAL SEGREGATION IN THE SCHOOLS EXTENDING BACK FOR MANY YEARS AND
USUALLY EMBODIED IN CONSTITUTIONAL AND STATUTORY PROVISIONS. 

THE GREAT CONTRIBUTION OF BROWN I WAS ITS HOLDING IN UNMISTAKABLE
TERMS THAT THE FOURTEENTH AMENDMENT FORBIDS STATE-COMPELLED OR STATE
AUTHORIZED SEGREGATION OF PUBLIC SCHOOLS.  347 U.S., AT 488, 493 -
495.  ALTHOUGH SOME OF THE LANGUAGE WAS MORE EXPANSIVE, THE HOLDING IN
BROWN I WAS ESSENTIALLY NEGATIVE:  IT WAS IMPERMISSIBLE UNDER THE
CONSTITUTION FOR THE STATES, OR THEIR INSTRUMENTALITIES, TO FORCE
CHILDREN TO ATTEND SEGREGATED SCHOOLS.  THE FORBIDDEN ACTION WAS DE
JURE, AND THE OPINION IN BROWN I WAS CONSTRUED--FOR SOME YEARS AND BY
MANY COURTS--AS REQUIRING ONLY STATE NEUTRALITY, ALLOWING "FREEDOM OF
CHOICE" AS TO SCHOOLS TO BE ATTENDED SO LONG AS THE STATE ITSELF
ASSURED THAT THE CHOICE WAS GENUINELY FREE OF OFFICIAL RESTRAINT.  /6/ 
BUT THE DOCTRINE OF BROWN I, AS AMPLIFIED BY BROWN II, 349 U.S. 294
(1955), DID NOT RETAIN ITS ORIGINAL MEANING.  IN A SERIES OF DECISIONS
EXTENDING FROM 1954 TO 1971 THE CONCEPT OF STATE NEUTRALITY WAS
TRANSFORMED INTO THE PRESENT CONSTITUTIONAL DOCTRINE REQUIRING
AFFIRMATIVE STATE ACTION TO DESEGREGATE SCHOOL SYSTEMS.  /7/ 

[[HC221'(ORIGINAL DOCUMENT PAGE 221)'  THE KEYSTONE CASE WAS GREEN
V. COUNTY SCHOOL BOARD, 391 U.S. 430, 437 - 438 (1968), WHERE SCHOOL
BOARDS WERE DECLARED TO HAVE "THE AFFIRMATIVE DUTY TO TAKE WHATEVER
STEPS MIGHT BE NECESSARY TO CONVERT TO A UNITARY SYSTEM IN WHICH RACIAL
DISCRIMINATION WOULD BE ELIMINATED ROOT AND BRANCH."  THE SCHOOL SYSTEM
BEFORE THE COURT IN GREEN WAS OPERATING IN A RURAL AND SPARSELY SETTLED
COUNTY WHERE THERE WERE NO CONCENTRATIONS OF WHITE AND BLACK
POPULATIONS, NO NEIGHBORHOOD SCHOOL SYSTEM (THERE WERE ONLY TWO SCHOOLS
IN THE COUNTY), AND NONE OF THE PROBLEMS OF AN URBANIZED SCHOOL
DISTRICT.  /8/  THE COURT PROPERLY IDENTIFIED THE FREEDOM-OF-CHOICE
PROGRAM THERE AS A SUBTERFUGE, AND THE LANGUAGE IN GREEN IMPOSING AN
AFFIRMATIVE DUTY TO CONVERT TO A UNITARY SYSTEM WAS APPROPRIATE ON THE
FACTS BEFORE THE COURT.  THERE WAS, HOWEVER, NO REASON TO QUESTION TO
WHAT EXTENT THIS DUTY WOULD APPLY IN THE VASTLY DIFFERENT FACTUAL
SETTING OF A LARGE CITY WITH EXTENSIVE AREAS OF RESIDENTIAL
SEGREGATION, PRESENTING PROBLEMS AND CALLING FOR SOLUTIONS QUITE
DIFFERENT FROM THOSE IN THE RURAL SETTING OF NEW KENT COUNTY,
VIRGINIA. 

BUT THE DOUBT AS TO WHETHER THE AFFIRMATIVE-DUTY CONCEPT WOULD
FLOWER INTO A NEW CONSTITUTIONAL PRINCIPLE OF GENERAL APPLICATION WAS
LAID TO REST BY SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402
U.S. 1 (1971), IN WHICH THE DUTY ARTICULATED IN GREEN WAS APPLIED TO
THE URBAN SCHOOL SYSTEM OF METROPOLITAN CHARLOTTE, NORTH CAROLINA. 

[[HC222'(ORIGINAL DOCUMENT PAGE 222)'  IN DESCRIBING THE RESIDENTIAL
PATTERNS IN CHARLOTTE, THE COURT NOTED THE "FAMILIAR PHENOMENON" IN THE
METROPOLITIAN AREAS OF MINORITY GROUPS BEING "CONCENTRATED IN ONE PART
OF THE CITY," 402 U.S., AT 25, AND ACKNOWLEDGED THAT: 

"RURAL AREAS ACCUSTOMED FOR HALF A CENTURY TO THE CONSOLIDATED
SCHOOL SYSTEMS IMPLEMENTED BY BUS TRANSPORTATION COULD MAKE ADJUSTMENTS
MORE READILY THAN METROPOLITAN AREAS WITH DENSE AND SHIFTING
POPULATION, NUMEROUS SCHOOLS, CONGESTED AND COMPLEX TRAFFIC PATTERNS." 
402 U.S., AT 14.  DESPITE THIS RECOGNITION OF A FUNDAMENTALLY DIFFERENT
PROBLEM FROM THAT INVOLVED IN GREEN, THE COURT NEVERTHELESS HELD THAT
THE AFFIRMATIVE-DUTY RULE OF GREEN WAS APPLICABLE, AND PRESCRIBED FOR A
METROPOLITAN SCHOOL SYSTEM WITH 107 SCHOOLS AND SOME 84,000 PUPILS
ESSENTIALLY THE SAME REMEDY--ELIMINATION OF SEGREGATION "ROOT AND
BRANCH"--WHICH HAD BEEN FORMULATED FOR THE TWO SCHOOLS AND 1,300 PUPILS
OF NEW KENT COUNTY. 

IN SWANN, THE COURT FURTHER NOTED IT WAS CONCERNED ONLY WITH STATES
HAVING "A LONG HISTORY" OF OFFICIALLY IMPOSED SEGREGATION AND THE DUTY
OF SCHOOL AUTHORITIES IN THOSE STATES TO IMPLEMENT BROWN I.  402 U.S.,
AT 5 - 6.  IN SO DOING, THE COURT REFRAINED FROM EVEN CONSIDERING
WHETHER THE EVOLUTION OF CONSTITUTIONAL DOCTRINE FROM BROWN I TO
GREEN/SWANN UNDERCUT WHATEVER LOGIC ONCE SUPPORTED THE DE FACTO/DE JURE
DISTINCTION.  IN IMPOSING ON METROPOLITAN SOUTHERN SCHOOL DISTRICTS AN
AFFIRMATIVE DUTY, ENTAILING LARGE-SCALE TRANSPORTATION OF PUPILS, TO
ELIMINATE SEGREGATION IN THE SCHOOLS, THE COURT REQUIRED THESE
DISTRICTS TO ALLEVIATE CONDITIONS WHICH IN LARGE PART DID NOT RESULT
FROM HISTORIC, STATE-IMPOSED DE JURE SEGREGATION.  RATHER, THE FAMILIAR
ROOT CAUSE OF SEGREGATED SCHOOLS IN ALL THE BIRACIAL METROPOLITAN AREAS
OF OUR COUNTY IS ESSENTIALLY THE SAME:  ONE OF SEGREGATED RESIDENTIAL
AND MIGRATORY PATTERNS THE IMPACT OF WHICH ON THE RACIAL COMPOSITION OF
THE SCHOOLS WAS OFTEN PERPETUATED AND RARELY AMELIORATED BY ACTION OF
PUBLIC SCHOOL AUTHORITIES. 

[[HC223'(ORIGINAL DOCUMENT PAGE 223)'  THIS IS A NATIONAL, NOT A
SOUTHERN, PHENOMENON.  AND IT IS LARGELY UNRELATED TO WHETHER A
PARTICULAR STATE HAD OR DID NOT HAVE SEGREGATIVE SCHOOL LAWS.  /9/ 

WHEREAS BROWN I RIGHTLY DECREED THE ELIMINATION OF STATE-IMPOSED
SEGREGATION IN THAT PARTICULAR SECTION OF THE COUNTRY WHERE IT DID
EXIST, SWANN IMPOSED OBLIGATIONS ON SOUTHERN SCHOOL DISTRICTS TO
ELIMINATE CONDITIONS WHICH ARE NOT REGIONALLY UNIQUE BUT ARE SIMILAR
BOTH IN ORIGIN AND EFFECT TO CONDITIONS IN THE REST OF THE COUNTRY.  AS
THE REMEDIAL OBLIGATIONS OF SWANN EXTEND FAR BEYOND THE ELIMINATION OF
THE OUTGROWTHS OF THE STATE-IMPOSED SEGREGATION OUTLAWED IN BROWN, THE
RATIONALE OF SWANN POINTS INEVITABLY TOWARD A UNIFORM, CONSTITUTIONAL
APPROACH TO OUR NATIONAL PROBLEM OF SCHOOL SEGREGATION. 

        II 

THE COURT'S DECISION TODAY, WHILE ADHERING TO THE DE JURE/DE FACTO
DISTINCTION, WILL REQUIRE THE APPLICATION OF THE GREEN/SWANN DOCTRINE
OF "AFFIRMATIVE DUTY" TO THE DENVER SCHOOL BOARD DESPITE THE ABSENCE OF
ANY HISTORY OF STATE-MANDATED SCHOOL SEGREGATION. 

[[HC224'(ORIGINAL DOCUMENT PAGE 224)'  THE ONLY EVIDENCE OF A
CONSTITUTIONAL VIOLATION WAS FOUND IN VARIOUS DECISIONS OF THE SCHOOL
BOARD.  I CONCUR IN THE COURT'S POSITION THAT THE PUBLIC SCHOOL
AUTHORITIES ARE THE RESPONSIBLE AGENCY OF THE STATE, AND THAT IF THE
AFFIRMATIVE-DUTY DOCTRINE IS SOUND CONSTITUTIONAL LAW FOR CHARLOTTE, IT
IS EQUALLY SO FOR DENVER.  I WOULD NOT, HOWEVER, PERPETUATE THE DE
JURE/DE FACTO DISTINCTION NOR WOULD I LEAVE TO PETITIONERS THE INITIAL
TORTUOUS EFFORT OF IDENTIFYING "SEGREGATIVE ACTS" AND DEDUCING
"SEGREGATIVE INTENT."  I WOULD HOLD, QUITE SIMPLY, THAT WHERE
SEGREGATED PUBLIC SCHOOLS EXIST WITHIN A SCHOOL DISTRICT TO A
SUBSTANTIAL DEGREE, THERE IS A PRIMA FACIE CASE THAT THE DULY
CONSTITUTED PUBLIC AUTHORITIES (I WILL USUALLY REFER TO THEM
COLLECTIVELY AS THE "SCHOOL BOARD") ARE SUFFICIENTLY RESPONSIBLE /10/
TO WARRANT IMPOSING UPON THEM A NATIONALLY APPLICABLE BURDEN TO
DEMONSTRATE THEY NEVERTHELESS ARE OPERATING A GENUINELY INTEGRATED
SCHOOL SYSTEM. 

        A 

THE PRINCIPAL REASON FOR ABANDONMENT OF THE DE JURE/DE FACTO
DISTINCTION IS THAT, IN VIEW OF THE EVOLUTION OF THE HOLDING IN BROWN I
INTO THE AFFIRMATIVE-DUTY DOCTRINE, THE DISTINCTION NO LONGER CAN BE
JUSTIFIED ON A PRINCIPLED BASIS.  IN DECREEING REMEDIAL REQUIREMENTS
FOR THE CHARLOTTE/MECKLENBURG SCHOOL DISTRICT, SWANN DEALT WITH A
METROPOLITAN, URBANIZED AREA IN WHCIH THE BASIC CAUSES OF SEGREGATION
WERE GENERALLY SIMILAR TO THOSE IN ALL SECTIONS OF THE COUNTRY, AND
ALSO LARGELY IRRELEVANT TO THE EXISTENCE OF HISTORIC, STATE-IMPOSED
SEGREGATION AT THE TIME OF THE BROWN DECISION. 

[[HC225'(ORIGINAL DOCUMENT PAGE 225)'  FURTHER, THE EXTENSION OF THE
AFFIRMATIVE-DUTY CONCEPT TO INCLUDE COMPULSORY STUDENT TRANSPORTATION
WENT WELL BEYOND THE MERE REMEDYING OF THAT PORTION OF SCHOOL
SEGREGATION FOR WHICH FORMER STATE SEGREGATION LAWS WERE EVER
RESPONSIBLE.  MOREOVER, AS THE COURT'S OPINION TODAY ABUNDANTLY
DEMONSTRATES, THE FACTS DEEMED NECESSARY TO ESTABLISH DE JURE
DISCRIMINATION PRESENT PROBLEMS OF SUBJECTIVE INTENT WHICH THE COURTS
CANNOT FAIRLY RESOLVE. 

AT THE OUTSET, ONE MUST TRY TO IDENTIFY THE CONSTITUTIONAL RIGHT
WHICH IS BEING ENFORCED.  THIS IS NOT EASY, AS THE PRECEDENTS HAVE BEEN
FAR FROM EXPLICIT.  IN BROWN I, AFTER EMPHASIZING THE IMPORTANCE OF
EDUCATION, THE COURT SAID THAT: 

"SUCH AN OPPORTUNITY, WHERE THE STATE HAS UNDERTAKEN TO PROVIDE IT,
IS A RIGHT WHICH MUST BE MADE AVAILABLE TO ALL ON EQUAL TERMS."  347
U.S., AT 493.  IN BROWN II, THE COURT IDENTIFIED THE "FUNDAMENTAL
PRINCIPLE"  ENUNCIATED IN BROWN I AS BEING THE UNCONSTITUTIONALITY OF
"RACIAL DISCRIMINATION IN PUBLIC EDUCATION," 349 U.S., AT 298, AND
SPOKE OF "THE PERSONAL INTEREST OF THE PLAINTIFFS IN ADMISSION TO
PUBLIC SCHOOLS AS SOON AS PRACTICABLE ON A NONDISCRIMINATORY BASIS." 
349 U.S., AT 300.  ALTHOUGH THIS AND SIMILAR LANGUAGE IS AMBIGUOUS AS
TO THE SPECIFIC CONSTITUTIONAL RIGHT, IT MEANS--AS A MINIMUM--THAT ONE
HAS THE RIGHT NOT TO BE COMPELLED BY STATE ACTION TO ATTEND A
SEGREGATED SCHOOL SYSTEM.  IN THE EVOLUTIONARY PROCESS SINCE 1954,
DECISIONS OF THIS COURT HAVE ADDED A SIGNIFICANT GLOSS TO THIS ORIGINAL
RIGHT.  ALTHOUGH NOWHERE EXPRESSLY ARTICULATED IN THESE TERMS, I WOULD
NOT DEFINE IT AS THE RIGHT, DERIVED FROM THE EQUAL PROTECTION CLAUSE,
TO EXPECT THAT ONCE THE STATE HAS ASSUMED RESPONSIBILITY FOR EDUCATION,
LOCAL SCHOOL BOARDS WILL OPERATE INTEGRATED SCHOOL SYSTEMS WITHIN THEIR
RESPECTIVE DISTRICTS.  /11/ 

[[HC226'(ORIGINAL DOCUMENT PAGE 226)'  THIS MEANS THAT SCHOOL
AUTHORITIES, CONSISTENT WITH THE GENERALLY ACCEPTED EDUCATIONAL GOAL OF
ATTAINING QUALITY EDUCATION FOR ALL PUPILS, MUST MAKE AND IMPLEMENT
THEIR CUSTOMARY DECISIONS WITH A VIEW TOWARD ENHANCING INTEGRATED
SCHOOL OPPORTUNITIES. 

THE TERM "INTEGRATED SCHOOL SYSTEM" PRESUPPOSES, OF COURSE, A TOTAL
ABSENCE OF ANY LAWS, REGULATIONS, OR POLICIES SUPPORTIVE OF THE TYPE OF
"LEGALIZED" SEGREGATION CONDEMNED IN BROWN.  A SYSTEM WOULD BE
INTEGRATED IN ACCORD WITH CONSTITUTIONAL STANDARDS IF THE RESPONSIBLE
AUTHORITIES HAD TAKEN APPROPRIATE STEPS TO (I) INTEGRATE FACULTIES AND
ADMINISTRATION; (II) SCRUPULOUSLY ASSURE EQUALITY OF FACILITIES,
INSTRUCTION, AND CURRICULUM OPPORTUNITIES THROUGHOUT THE DISTRICT;
(III) UTILIZE THEIR AUTHORITY TO DRAW ATTENDANCE ZONES TO PROMOTE
INTEGRATION; AND (IV) LOCATE NEW SCHOOLS, CLOSE OLD ONES, AND DETERMINE
THE SIZE AND GRADE CATEGORIES WITH THIS SAME OBJECTIVE IN MIND.  WHERE
SCHOOL AUTHORITIES DECIDE TO UNDERTAKE THE TRANSPORTION OF STUDENTS,
THIS ALSO MUST BE WITH INTEGRATIVE OPPORTUNITIES IN MIND. 

THE FOREGOING PRESCRIPTION IS NOT INTENDED TO BE EITHER DEFINITIVE
OR ALL-INCLUSIVE, BUT RATHER AN INDICATION OF THE CONTOUR
CHARACTERISTICS OF AN INTEGRATED SCHOOL SYSTEM IN WHICH ALL CITIZENS
AND PUPILS MAY JUSTIFIABLY BE CONFIDENT THAT RACIAL DISCRIMINATION IS
NEITHER PRACTICED NOR TOLERATED.  AN INTEGRATED SCHOOL SYSTEM DOES NOT
MEAN--AND INDEED COULD NOT MEAN IN VIEW OF THE RESIDENTIAL PATTERNS OF
MOST OF OUR MAJOR METROPOLITAN AREAS--THAT EVERY SCHOOL MUST IN FACT BE
AN INTEGRATED UNIT. 

[[HC227'(ORIGINAL DOCUMENT PAGE 227)'  A SCHOOL WHICH HAPPENS TO BE
ALL OR PREDOMINANTLY WHITE OR ALL OR PREDOMINANTLY BLACK IS NOT A
"SEGREGATED" SCHOOL IN AN UNCONSTITUTIONAL SENSE IF THE SYSTEM ITSELF
IS A GENUINELY INTEGRATED ONE. 

HAVING SCHOOL BOARDS OPERATE AN INTEGRATED SCHOOL SYSTEM PROVIDES
THE BEST ASSURANCE OF MEETING THE CONSTITUTIONAL REQUIREMENT THAT
RACIAL DISCRIMINATION, SUBTLE OR OTHERWISE, WILL FIND NO PLACE IN THE
DECISIONS OF PUBLIC SCHOOL OFFICIALS.  COURTS JUDGING PAST SCHOOL BOARD
ACTIONS WITH A VIEW TO THEIR GENERAL INTEGRATIVE EFFECT WILL BE BEST
ABLE TO ASSURE AN ABSENCE OF SUCH DISCRIMINATION WHILE AVOIDING THE
MURKY, SUBJECTIVE JUDGMENTS INHERENT IN THE COURT'S SEARCH FOR
"SEGREGATIVE INTENT."  ANY TEST RESTING ON SO NEBULOUS AND ELUSIVE AN
ELEMENT AS A SCHOOL BOARD'S SEGREGATIVE "INTENT" PROVIDES INADEQUATE
ASSURANCE THAT MINORITY CHILDREN WILL NOT BE SHORT-CHANGED IN THE
DECISIONS OF THOSE ENTRUSTED WITH THE NON-DISCRIMINATORY OPERATION OF
OUR PUBLIC SCHOOLS. 

PUBLIC SCHOOLS ARE CREATURES OF THE STATE, AND WHETHER THE
SEGREGATION IS STATE-CREATED OR STATE-ASSISTED OR MERELY STATE
PERPETUATED SHOULD BE IRRELEVANT TO CONSTITUTIONAL PRINCIPLE.  THE
SCHOOL BOARD EXERCISES PERVASIVE AND CONTINUING RESPONSIBILITY OVER THE
LONG-RANGE PLANNING AS WELL AS THE DAILY OPERATIONS OF THE PUBLIC
SCHOOL SYSTEM.  IT SETS POLICIES ON ATTENDANCE ZONES, FACULTY
EMPLOYMENT AND ASSIGNMENTS, SCHOOL CONSTRUCTION, CLOSINGS AND
CONSOLIDATIONS, AND MYRIAD OTHER MATTERS.  SCHOOL BOARD DECISIONS
OBVIOUSLY ARE NOT THE SOLE CAUSE OF SEGREGATED SCHOOL CONDITIONS.  BUT
IF, AFTER SUCH DETAILED AND COMPLETE PUBLIC SUPERVISION, SUBSTANTIAL
SCHOOL SEGREGATION STILL PERSISTS, THE PRESUMPTION IS STRONG THAT THE
SCHOOL BOARD, BY ITS ACTS OR OMISSIONS, IS IN SOME PART RESPONSIBLE. 
WHERE STATE ACTION AND SUPERVISION ARE SO PERVASIVE AND WHERE, AFTER
YEARS OF SUCH ACTION, SEGREGATED SCHOOLS CONTINUE TO EXIST WITHIN THE
DISTRICT TO A SUBSTANTIAL DEGREE, THIS COURT IS JUSTIFIED IN FINDING A
PRIMA FACIE CASE OF A CONSTITUTIONAL VIOLATION. 

[[HC228'(ORIGINAL DOCUMENT PAGE 228)'  THE BURDEN THEN MUST FALL ON
THE SCHOOL BOARD TO DEMONSTRATE IT IS OPERATING AN "INTEGRATED SCHOOL
SYSTEM." 

IT MAKES LITTLE SENSE TO FIND PRIMA FACIE VIOLATIONS AND THE
CONSEQUENT AFFIRMATIVE DUTY TO DESEGREGATE SOLELY IN THOSE STATES WITH
STATE-IMPOSED SEGREGATION AT THE TIME OF THE BROWN DECISION.  THE
HISTORY OF STATE-IMPOSED SEGREGATION IS MORE WIDESPREAD IN OUR COUNTRY
THAN THE DE JURE/DE FACTO DISTINCTION HAS TRADITIONALLY CARED TO
RECOGNIZE.  /12/  AS ONE COMMENTATOR HAS NOTED:

"(THE THREE COURT OF APPEALS DECISIONS DENYING A CONSTITUTIONAL DUTY
TO ABOLISH DE FACTO SEGREGATION ALL AROSE IN CITIES--CINCINNATI, GARY,
AND KANSAS CITY, KANSAS--WHERE RACIAL SEGREGATION IN SCHOOLS WAS
FORMERLY MANDATED BY STATE OR LOCAL LAW.  (DEAL V. CINCINNATI BOARD OF
EDUCATION, 369 F.2D 55 (CA6 1966), CERT. DENIED, 389 U.S. 847 1967);
DOWNS V. BOARD OF EDUCATION, 336 F.2D 988 (CA10 1964), CERT. DENIED,
380 U.S. 914 (1965); BELL V. SCHOOL CITY OF GARY, IND., 324 F.2D 209
(CA7 1963), CERT. DENIED, 377 U.S. 924 (1964).)  OHIO DISCARDED ITS
STATUTE IN 1887, INDIANA IN 1949, AND KANSAS CITY NOT UNTIL THE ADVENT
OF BROWN.  IF NEGRO AND WHITE PARENTS IN MISSISSIPPI ARE REQUIRED TO
BUS THEIR CHILDREN TO DISTANT SCHOOLS ON THE THEORY THAT THE
CONSEQUENCES OF PAST DE JURE SEGREGATION CANNOT OTHERWISE BE
DISSIPATED, SHOULD NOT THE SAME REASONING APPLY IN GARY, INDIANA, WHERE
NO MORE THAN FIVE YEARS BEFORE BROWN THE SAME PRACTICE EXISTED WITH
PRESUMABLY THE SAME EFFECTS?"     [[HC229'(ORIGINAL DOCUMENT PAGE 229)'

  GOODMAN, DE FACTO SCHOOL SEGREGATION:  A CONSTITUTIONAL AND
EMPIRICAL ANALYSIS, 60

  CALIF. L. REV. 275, 297 (1972).  /13/ 

NOT ONLY DOES THE DE JURE/DE FACTO DISTINCTION OPERATE INEQUITABLY
ON COMMUNITIES IN DIFFERENT SECTIONS OF THE COUNTRY, MORE IMPORTANTLY,
IT DISADVANTAGES MINORITY CHILDREN AS WELL.  AS THE FIFTH CIRCUIT
STATED: 

     "'THE NEGRO CHILDREN IN CLEVELAND, CHICAGO, LOS ANGELES,

  BOSTON, NEW YORK, OR ANY OTHER AREA OF THE NATION WHICH THE

  OPINION CLASSIFIES UNDER DE FACTO SEGREGATION, WOULD RECEIVE

  LITTLE COMFORT FROM THE ASSERTION THAT THE RACIAL MAKE-UP OF

  THEIR SCHOOL SYSTEM DOES NOT VIOLATE THEIR CONSTITUTIONAL RIGHTS

  BECAUSE THEY WERE BORN INTO A DE FACTO SOCIETY, WHILE THE EXACT

  SAME RACIAL MAKE-UP OF THE SCHOOL SYSTEM IN THE 17 SOUTHERN AND

BORDER STATES VIOLATES THE CONSTITUTIONAL RIGHTS OF THEIR

  COUNTERPARTS, OR EVEN THEIR BLOOD BROTHERS, BECAUSE THEY WERE

  BORN INTO A DE JURE SOCIETY. 

[[HC230'(ORIGINAL DOCUMENT PAGE 230)'

  ALL CHILDREN EVERYWHERE IN THE NATION ARE PROTECTED BY THE
CONSTITUTION, AND TREATMENT WHICH

VIOLATES THEIR CONSTITUTIONAL RIGHTS IN ONE AREA OF THE COUNTRY, ALSO
VIOLATES SUCH

  CONSTITUTIONAL RIGHTS IN ANOTHER AREA.'"  CISNEROS V. CORPUS
CHRISTI INDEPENDENT SCHOOL

  DISTRICT, 467 F.2D 142, 148 (CA5 1972) (EN BANC), QUOTING UNITED
STATES V. JEFFERSON COUNTY

  BOARD OF EDUCATION, 380 F.2D 385, 397 (CA5 1967) (GEWIN, J.,
DISSENTING).  /14/ 

THE COURT TODAY DOES MOVE FOR THE FIRST TIME TOWARD BREAKING DOWN
PAST SECTIONAL DISPARITIES, BUT IT CLINGS TENUOUSLY TO ITS DISTINTION. 
IT SEARCHES FOR DE JURE ACTION IN WHAT THE DENVER SCHOOL BOARD HAS DONE
OR FAILED TO DO, AND EVEN HERE THE COURT DOES NOT RELY UPON THE RESULTS
OR EFFECTS OF THE BOARD'S CONDUCT BUT FEELS COMPELLED TO FIND
SEGREGATIVE INTENT:  /15/ 

"WE EMPHASIZE THAT THE DIFFERENTIATING FACTOR BETWEEN DE JURE
SEGREGATION AND SO-CALLED DE FACTO SEGREGATION TO WHICH WE REFERRED IN
SWANN IS PURPOSE OR INTENT TO SEGREGATE." 

[[HC231'(ORIGINAL DOCUMENT PAGE 231)'

  ANTE, AT 208 (EMPHASIS IS THE COURT'S). 

THE COURT'S INSISTENCE THAT THE "DIFFERENTIATING FACTOR" BETWEEN DE
JURE AND DE FACTO SEGREGATION BE "PURPOSE OR INTENT" IS DIFFICULT TO
RECONCILE WITH THE LANGUAGE IN SO RECENT A CASE AS WRIGHT V. COUNCIL OF
THE CITY OF EMPORIA, 407 U.S. 451 (1972).  IN HOLDING THERE THAT
"MOTIVATION" IS IRRELEVANT, THE COURT SAID: 

"IN ADDITION, AN INQUIRY INTO THE 'DOMINANT'  MOTIVATION OF SCHOOL
AUTHORITIES IS AS IRRELEVANT AS IT IS FRUITLESS.  THE MANDATE OF BROWN
II WAS TO DESEGREGATE SCHOOLS, AND WE HAVE SAID THAT "(THE MEASURE OF
ANY DESEGREGATION PLAN IS ITS EFFECTIVENESS.'  DAVIS V. SCHOOL
COMMISSIONERS OF MOBILE COUNTY, 402 U.S. 33, 37.  THUS, WE HAVE FOCUSED
UPON THE EFFECT--NOT THE PURPOSE OR MOTIVATION--OF A SCHOOL BOARD'S
ACTION IN DETERMINING WHETHER IT IS A PERMISSIBLE METHOD OF DISMANTLING
A DUAL SYSTEM.  . . . 

     ". . . THOUGH THE PURPOSE OF THE NEW SCHOOL DISTRICTS WAS
FOUND

  TO BE DISCRIMINATORY IN MANY OF THESE CASES, THE COURTS' HOLDINGS

  RESTED NOT ON MOTIVATION OR PURPOSE BUT ON THE EFFECT OF THE

  ACTION UPON THE DISMANTLING OF THE DUAL SCHOOL SYSTEMS INVOLVED. 

  THAT WAS THE FOCUS OF THE DISTRICT COURT IN THIS CASE, AND WE

 HOLD THAT ITS APPROACH WAS PROPER."  407 U.S., AT 462. 

I CAN DISCERN NO BASIS IN LAW OR LOGIC FOR HOLDING THAT THE MOTIVATION
OF SCHOOL BOARD ACTION IS IRRELEVANT IN VIRGINIA AND CONTROLLING IN
COLORADO.  IT MAY BE ARGUED, OF COURSE, THAT IN EMPORIA A PRIOR
CONSTITUTIONAL VIOLATION HAD ALREADY BEEN PROVED AND THAT THIS
JUSTIFIES THE DISTINCTION. 

[[HC232'(ORIGINAL DOCUMENT PAGE 232)'  THE NET RESULT OF THE COURT'S
LANGUAGE, HOWEVER, IS THE APPLICATION OF AN EFFECT TEST TO THE ACTIONS
OF SOUTHERN SCHOOL DISTRICTS AND AN INTENT TEST TO THOSE IN OTHER
CAN BE MADE.  RATHER THAN STRAINING TO PERPETUATE ANY SUCH DUAL
STANDARD, WE SHOULD HOLD FORTHRIGHTLY THAT SIGNIFICANT SEGREGATED
SCHOOL CONDITIONS IN ANY SECTION OF THE COUNTRY ARE A PRIMA FACIE
VIOLATION OF CONSTITUTIONAL RIGHTS.  AS THE COURT HAS NOTED ELSEWHERE: 

     "CIRCUMSTANCES OR CHANCE MAY WELL DICTATE THAT NO PERSONS IN A

  CERTAIN CLASS WILL SERVE ON A PARTICULAR JURY OR DURING SOME

  PARTICULAR PERIOD.  BUT IT TAXES OUR CREDULITY TO SAY THAT MERE

  CHANCE RESULTED IN THERE BEING NO MEMBERS OF THIS CLASS AMONG THE

OVER SIX THOUSAND JURORS CALLED IN THE PAST 25 YEARS.  THE RESULT

  BESPEAKS DISCRIMINATION, WHETHER OR NOT IT WAS A CONSCIOUS

  DECISION ON THE PART OF ANY INDIVIDUAL JURY COMMISSIONER." 

  HERNANDEZ V. TEXAS, 347 U.S. 475, 482 (1954).  (EMPHASIS ADDED.) 

        B 

THERE IS THUS NO REASON AS A MATTER OF CONSTITUTIONAL PRINCIPLE TO
ADHERE TO THE DE JURE/DE FACTO DISTINCTION IN SCHOOL DESEGREGATION
CASES.  IN ADDITION, THERE ARE REASONS OF POLICY AND PRUDENT JUDICIAL
ADMINISTRATION WHICH POINT STRONGLY TOWARD THE ADOPTION OF A UNIFORM
NATIONAL RULE.  THE LITIGATION HERETOFORE CENTERED IN THE SOUTH ALREADY
IS SURFACING IN OTHER REGIONS.  THE DECISIONS OF THE COURT TODAY,
EMPHASIZING AS IT DOES THE ELUSIVE ELEMENT OF SEGREGATIVE INTENT, WILL
INVITE NUMEROUS DESEGREGATION SUITS IN WHICH THERE CAN BE LITTLE HOPE
OF UNIFORMITY OF RESULT. 

THE ISSUE IN THESE CASES WILL NOT BE WHETHER SEGREGATED EDUCATION
EXISTS.  THIS WILL BE CONCEDED IN MOST OF THEM.  THE LITIGATION WILL
FOCUS AS A CONSEQUENCE OF THE COURT'S DECISION ON WHETHER SEGREGATION
HAS RESULTED IN ANY "MEANINGFUL OR SIGNIFICANT" PORTION OF A SCHOOL
SYSTEM FROM A SCHOOL BOARD'S "SEGREGATIVE INTENT." 

[[HC233'(ORIGINAL DOCUMENT PAGE 233)'  THE INTRACTABLE PROBLEMS
INVOLVED IN LITIGATING THIS ISSUE ARE OBVIOUS TO ANY LAWYER.  THE
RESULTS OF LITIGATION--OFTEN ARRIVED AT SUBJECTIVELY BY A COURT
ENDEAVORING TO ASCERTAIN THE SUBJECTIVE INTENT OF SCHOOL AUTHORITIES
WITH RESPECT TO ACTION TAKEN OR NOT TAKEN OVER MANY YEARS--WILL BE
FORTUITOUS, UNPREDICTABLE AND EVEN CAPRICIOUS. 

THE DENVER SITUATION IS ILLUSTRATIVE OF THE PROBLEM.  THE COURTS
BELOW FOUND EVIDENCE OF DE JURE VIOLATIONS WITH RESPECT TO THE PARK
HILL SCHOOLS AND AN ABSENCE OF SUCH VIOLATIONS WITH RESPECT TO THE CORE
CITY SCHOOLS, DESPITE THE FACT THAT ACTIONS TAKEN BY THE SCHOOL BOARD
WITH REGARD TO THOSE TWO SECTIONS WERE NOT DISSIMILAR.  IT IS, FOR
EXAMPLE, QUITE POSSIBLE TO CONTEND THAT BOTH THE CONSTRUCTION OF MANUAL
HIGH SCHOOL IN THE CORE CITY AREA AND BARRETT ELEMENTARY SCHOOL IN THE
PARK HILL AREA OPERATED TO SERVE THEIR SURROUNDING NEGRO COMMUNITIES
AND, IN EFFECT, TO MERGE SCHOOL ATTENDANCE ZONES WITH SEGREGATED
RESIDENTIAL PATTERNS.  SEE BRIEF FOR PETITIONERS 80 - 83.  YET FINDINGS
EVEN ON SUCH SIMILAR ACTS WILL, UNDER THE DE JURE/DE FACTO DISTINCTION,
CONTINUE TO DIFFER, ESPECIALLY SINCE THE COURT HAS NEVER MADE CLEAR
WHAT SUFFICES TO ESTABLISH THE REQUISITE "SEGREGATIVE INTENT" FOR AN
INITIAL CONSTITUTIONAL VIOLATION.  EVEN IF IT WERE POSSIBLE TO CLARIFY
THIS QUESTION, WIDE AND UNPREDICTABLE DIFFERENCES OF OPINION AMONG
JUDGES WOULD BE INEVITABLE WHEN DEALING WITH AN ISSUE AS SLIPPERY AS
"INTENT" OR "PURPOSE", ESPECIALLY WHEN RELATED TO HUNDREDS OF DECISIONS
MADE BY SCHOOL AUTHORITIES UNDER VARYING CONDITIONS OVER MANY YEARS. 

THIS COURT HAS RECOGNIZED REPEATEDLY THAT IT IS "EXTREMELY DIFFICULT
FOR A COURT TO ASCERTAIN THE MOTIVATION, OR COLLECTION OF DIFFERENT
MOTIVATIONS, THAT LIE BEHIND A LEGISLATIVE ENACTMENT," PALMER V.
THOMPSON, 403 U.S. 217, 224 (1971); MCGINNIS V. ROYSTER, 410 U.S. 263,
276 - 277 (1973); UNITED STATES V. O'BRIEN, 391 U.S. 367, 381 (1968). 

[[HC234'(ORIGINAL DOCUMENT PAGE 234)'  WHATEVER DIFFICULTIES EXIST
WITH REGARD TO A SINGLE STATUTE WILL BE COMPOUNDED IN A JUDICIAL REVIEW
OF YEARS OF ADMINISTRATION OF A LARGE AND COMPLEX SCHOOL SYSTEM.  /16/
EVERY ACT OF A SCHOOL BOARD AND SCHOOL ADMINISTRATION, AND INDEED EVERY
FAILURE TO ACT WHERE AFFIRMATIVE ACTION IS INDICATED, MUST NOW BE
SUBJECT TO SCRUTINY.  THE MOST ROUTINE DECISIONS WITH RESPECT TO THE
OPERATION OF SCHOOLS, MADE ALMOST DAILY, CAN AFFECT IN VARYING DEGREES
THE EXTENT TO WHICH SCHOOLS ARE INITIALLY SEGREGATED, REMAIN IN THAT
CONDITION, ARE DESEGREGATED, OR--FOR THE LONG TERM FUTURE--ARE LIKELY
TO BE ONE OR THE OTHER.  THESE DECISIONS INCLUDE ACTION OR NONACTION
WITH RESPECT TO SCHOOL BUILDING CONSTRUCTION AND LOCATION; THE TIMING
OF BUILDING NEW SCHOOLS AND THEIR SIZE; THE CLOSING AND CONSOLIDATION
OF SCHOOLS; THE DRAWING OR GERRYMANDERING OF STUDENT ATTENDANCE ZONES;
THE EXTENT TO WHICH A NEIGHBORHOOD POLICY IS ENFORCED; THE RECRUITMENT,
PROMOTION AND ASSIGNMENT OF FACULTY AND SUPERVISORY PERSONNEL; POLICIES
WITH RESPECT TO TRANSFERS FROM ONE SCHOOL TO ANOTHER; WHETHER, AND TO
WHAT EXTENT, SPECIAL SCHOOLS WILL BE PROVIDED, WHERE THEY WILL BE
LOCATED, AND WHO WILL QUALIFY TO ATTEND THEM; THE DETERMINATION OF
CURRICULUM, INCLUDING WHETHER THERE WILL BE "TRACKS" THAT LEAD
PRIMARILY TO COLLEGE OR TO VOCATIONAL TRAINING, AND THE ROUTING OF
STUDENTS INTO THESE TRACKS; AND EVEN DECISIONS AS TO SOCIAL,
RECREATIONAL, AND ATHLETIC POLICIES. 

IN SWANN THE COURT DID NOT HAVE TO PROBE INTO SEGREGATIVE INTENT AND
PROXIMATE CAUSE WITH RESPECT TO EACH OF THESE "ENDLESS"  FACTORS.  THE
BASIS FOR ITS DE JURE FINDING THERE WAS ROOTED PRIMARILY IN THE PRIOR
HISTORY OF THE DESEGREGATION SUIT.  402 U.S., AT 5 - 6.  BUT IN A CASE
OF THE PRESENT TYPE, WHERE NO SUCH HISTORY EXISTS, A JUDICIAL
EXAMINATION OF THESE FACTORS WILL BE REQUIRED UNDER TODAY'S DECISION. 
THIS WILL LEAD INEVITABLY TO UNEVEN AND UNPREDICTABLE RESULTS, TO
PROTRACTED AND INCONCLUSIVE LITIGATION, TO ADDED BURDENS ON THE FEDERAL
COURTS, AND TO SERIOUS DISRUPTION OF INDIVIDUAL SCHOOL SYSTEMS.  IN THE
ABSENCE OF NATIONAL AND OBJECTIVE STANDARDS, SCHOOL BOARDS AND
ADMINISTRATORS WILL REMAIN IN A STATE OF UNCERTAINTY AND DISARRAY,
SPECULATING AS TO WHAT IS REQUIRED AND WHEN LITIGATION WILL STRIKE. 

        C 

RATHER THAN CONTINUE TO PROP UP A DISTINCTION NO LONGER GROUNDED IN
PRINCIPLE, AND CONTRIBUTING TO THE CONSEQUENCES INDICATED ABOVE, WE
SHOULD ACKNOWLEDGE THAT WHENEVER PUBLIC SCHOOL SEGREGATION EXISTS TO A
SUBSTANTIAL DEGREE THERE IS PRIMA FACIE EVIDENCE OF A CONSTITUTIONAL
VIOLATION BY THE RESPONSIBLE SCHOOL BOARD.  IT IS TRUE, OF COURSE, THAT
SEGREGATED SCHOOLS--WHEREVER LOCATED--ARE NOT SOLELY THE PRODUCT OF THE
ACTION OR INACTION OF PUBLIC SCHOOL AUTHORITIES. 

[[HC236'(ORIGINAL DOCUMENT PAGE 236)'  INDEED, AS INDICATED EARLIER,
THERE CAN BE LITTLE DOUBT THAT PRINCIPAL CAUSES OF THE PERVASIVE SCHOOL
SEGREGATION FOUND IN THE MAJOR URBAN AREAS OF THIS COUNTRY, WHETHER IN
THE NORTH, WEST, OR SOUTH, ARE THE SOCIO-ECONOMIC INFLUENCES WHICH HAVE
CONCENTRATED OUR MINORITY CITIZENS IN THE INNER CITIES WHILE THE MORE
MOBILE WHITE MAJORITY DISPERSE TO THE SUBURBS.  BUT IT IS ALSO TRUE
THAT PUBLIC SCHOOL BOARDS HAVE CONTINUING, DETAILED RESPONSIBILITY FOR
THE PUBLIC SCHOOL SYSTEM WITHIN THEIR DISTRICT AND, AS JUDGE JOHN MINOR
WISDOM HAS NOTED, "(WHEN THE FIGURES (SHOWING SEGREGATION IN THE
SCHOOLS) SPEAK SO ELOQUENTLY, A PRIMA FACIE CASE OF DISCRIMINATION IS
ESTABLISHED."  UNITED STATES V. TEXAS EDUCATION AGENCY, 467 F.2D 848,
873 (CA5 1972) (EN BANC).  MOREOVER, AS FORESHADOWED IN SWANN AND AS
IMPLICITLY HELD TODAY, SCHOOL BOARDS HAVE A DUTY TO MINIMIZE AND
AMELIORATE SEGREGATED CONDITIONS BY PURSUING AN AFFIRMATIVE POLICY OF
DESEGREGATION.  IT IS THIS POLICY WHICH MUST BE APPLIED CONSISTENTLY ON
A NATIONAL BASIS WITHOUT REGARD TO A DOCTRINAL DISTINCTION WHICH HAS
OUTLIVED ITS TIME. 

        III 

THE PRECEDING SECTION ADDRESSES THE CONSTITUTIONAL OBLIGATION OF
PUBLIC AUTHORITIES IN THE SCHOOL DISTRICTS THROUGHOUT OUR COUNTRY TO
OPERATE INTEGRATED SCHOOL SYSTEMS.  WHEN THE SCHOOLS OF A PARTICULAR
DISTRICT ARE FOUND TO BE SUBSTANTIALLY SEGREGATED, THERE IS A PRIMA
FACIE CASE THAT THIS OBLIGATION HAS NOT BEEN MET.  THE BURDEN THEN
SHIFTS TO THE SCHOOL AUTHORITIES TO DEMONSTRATE THAT THEY HAVE IN FACT
OPERATED AN INTEGRATED SYSTEM AS THIS TERM IS DEFINED, SUPRA, AT 227 -
228.  IF THERE IS A FAILURE SUCCESSFULLY TO REBUT THE PRIMA FACIE CASE,
THE QUESTION THEN BECOMES WHAT REASONABLE AFFIRMATIVE DESEGREGATIVE
STEPS DISTRICT COURTS MAY REQUIRE TO PLACE THE SCHOOL SYSTEM IN
COMPLIANCE WITH THE CONSTITUTIONAL STANDARD. 

[[HC237'(ORIGINAL DOCUMENT PAGE 237)'  IN SHORT, WHAT SPECIFICALLY
IS THE NATURE AND SCOPE OF THE REMEDY? 

AS THE COURT'S OPINION VIRTUALLY COMPELS THE FINDING ON REMAND THAT
DENVER HAS A "DUAL SCHOOL SYSTEM," THAT CITY WILL THEN BE UNDER AN
"AFFIRMATIVE DUTY" TO DESEGREGATE ITS ENTIRE SYSTEM "ROOT AND BRANCH." 
GREEN V. COUNTY SCHOOL BOARD, 391 U.S., AT 437 - 438.  AGAIN, THE
CRITICAL QUESTION IS WHAT OUGHT THIS CONSTITUTIONAL DUTY TO ENTAIL? 

        A 

THE CONTROLLING CASE IS SWANN, SUPRA, AND THE QUESTION WHICH WILL
CONFRONT AND CONFOUND THE DISTRICT COURT AND DENVER SCHOOL BOARD IS
WHAT, INDEED, DOES SWANN REQUIRE?  SWANN PURPORTED TO ENUNCIATE NO NEW
PRINCIPLES, RELYING HEAVILY ON BROWN I AND II AND GREEN.  YET IT
AFFIRMED A DISTRICT COURT ORDER WHICH HAD RELIED HEAVILY ON "RACIAL
RATIOS" AND SANCTIONED TRANSPORTATION OF ELEMENTARY AS WELL AS
SECONDARY PUPILS.  LOWER FEDERAL COURTS HAVE OFTEN READ SWANN AS
REQUIRING FAR-REACHING TRANSPORTATION DECREES /17/  TO ACHIEVE THE
GREATEST POSSIBLE DEGREE OF ACTUAL DESEGREGATION." 
[[HC238'(ORIGINAL DOCUMENT PAGE 238)'  402 U.S., AT 26.  IN THE CONTEXT
OF A LARGE URBAN AREA, WITH HEAVY RESIDENTIAL CONCENTRATIONS OF WHITE
AND BLACK CITIZENS IN DIFFERENT--AND WIDELY SEPARATED--SECTIONS OF THE
SCHOOL DISTRICT, EXTENSIVE DISPERSAL AND TRANSPORTATION OF PUPILS IS
INEVITABLE IF SWANN IS READ AS EXPANSIVELY AS MANY COURTS HAVE BEEN
READING IT TO DATE. 

TO THE EXTENT THAT SWANN MAY BE THOUGHT TO REQUIRE LARGE-SCALE OR LONG
DISTANCE TRANSPORTATION OF STUDENTS IN OUR METROPOLITAN SCHOOL
DISTRICTS, I RECORD MY PROFOUND MISGIVINGS.  NOTHING IN OUR
CONSTITUTION COMMANDS OR ENCOURAGES ANY SUCH COURT-COMPELLED DISRUPTION
OF PUBLIC EDUCATION.  IT MAY BE MORE ACCURATE TO VIEW SWANN AS HAVING
LAID DOWN A BROAD RULE OF REASON UNDER WHICH DESEGREGATION REMEDIES
MUST REMAIN FLEXIBLE AND OTHER VALUES AND INTERESTS BE CONSIDERED. 
THUS THE COURT RECOGNIZED THAT SCHOOL AUTHORITIES, NOT THE FEDERAL
JUDICIARY, MUST BE CHARGED IN THE FIRST INSTANCE WITH THE TASK OF
DESEGREGATING LOCAL SCHOOL SYSTEMS.  ID., AT 16.  IT NOTED THAT SCHOOL
BOARDS IN RURAL AREAS CAN ADJUST MORE READILY TO THIS TASK THAN THOSE
IN METROPOLITAN DISTRICTS "WITH DENSE AND SHIFTING POPULATION, NUMEROUS
SCHOOLS, CONGESTED AND COMPLEX TRAFFIC PATTERNS."  ID., AT 14. 
ALTHOUGH THE USE OF PUPIL TRANSPORTATION WAS APPROVED AS A REMEDIAL
DEVICE, TRANSPORTATION ORDERS ARE SUSPECT "WHEN THE TIME OR DISTANCE OF
TRAVEL IS SO GREAT AS TO EITHER RISK THE HEALTH OF THE CHILDREN OR
SIGNIFICANTLY IMPINGE ON THE EDUCATIONAL PROCESS." 

[[HC239'(ORIGINAL DOCUMENT PAGE 239)'  ID., AT 30 - 31.  FINALLY,
THE AGE OF THE PUPILS TO BE TRANSPORTED WAS RECOGNIZED BY THE COURT IN
SWANN AS ONE IMPORTANT LIMITATION ON THE TIME OF STUDENT TRAVEL.  ID.,
AT 31. 

THESE FACTORS WERE SUPPOSED TO HELP GUIDE DISTRICT COURTS IN FRAMING
EQUITABLE REMEDIES IN SCHOOL DESEGREGATION CASES.  /18/  AND THE COURT
FURTHER EMPHASIZED THAT EQUITABLE DECREES ARE INHERENTLY SENSITIVE, NOT
SOLELY TO THE DEGREE OF DESEGREGATION TO BE ACHIEVED, BUT TO A VARIETY
OF OTHER PUBLIC AND PRIVATE INTERESTS: 

"(A) SCHOOL DESEGREGATION CASE DOES NOT DIFFER FUNDAMENTALLY FROM
OTHER CASES INVOLVING THE FRAMING OF EQUITABLE REMEDIES TO REPAIR THE
DENIAL OF A CONSTITUTIONAL RIGHT.  THE TASK IS TO CORRECT, BY A
BALANCING OF THE INDIVIDUAL AND COLLECTIVE INTERESTS, THE CONDITION
THAT OFFENDS THE CONSTITUTION.  ID., AT 15 - 16. 

THOSE WORDS ECHOED A SIMILAR EXPRESSION IN BROWN II, 349 U.S., AT
300: 

     "IN FASHIONING AND EFFECTUATING THE DECREES, THE COURTS WILL
BE

  GUIDED BY EQUITABLE PRINCIPLES.  TRADITIONALLY, EQUITY HAS BEEN

  CHARACTERIZED BY A PRACTICAL FLEXIBILITY IN SHAPING ITS REMEDIES

  AND BY A FACILITY FOR ADJUSTING AND RECONCILING PUBLIC AND

  PRIVATE NEEDS." 

THUS, IN SCHOOL DESEGREGATION CASES, AS ELSEWHERE, EQUITY COUNSELS
REASON, FLEXIBILITY, AND BALANCE.  SEE, E. G., LEMON V. KURTZMAN, 411
U.S. 192 (1973). 

[[HC240'(ORIGINAL DOCUMENT PAGE 240)'  I AM AWARE, OF COURSE, THAT
REASONABLENESS IN ANY AREA IS A RELATIVE AND SUBJECTIVE CONCEPT.  BUT
WITH SCHOOL DESEGREGATION, REASONABLENESS WOULD SEEM TO EMBODY A
BALANCED EVALUATION OF THE OBLIGATION OF PUBLIC SCHOOL BOARDS TO
PROMOTE DESEGREGATION WITH OTHER, EQUALLY IMPORTANT EDUCATIONAL
INTERESTS WHICH A COMMUNITY MAY LEGITIMATELY ASSERT.  NEGLECT OF EITHER
THE OBLIGATION OR THE INTERESTS DESTROYS THE EVENHANDED SPIRIT WITH
WHICH EQUITABLE REMEDIES MUST BE APPROACHED.  /19/  OVERZEALOUSNESS IN
PURSUIT OF ANY SINGLE GOAL IS UNTRUE TO THE TRADITION OF EQUITY AND TO
THE "BALANCE" AND "FLEXIBILITY"  WHICH THIS COURT HAS ALWAYS
RESPECTED. 

        B 

WHERE SCHOOL AUTHORITIES HAVE DEFAULTED IN THEIR DUTY TO OPERATE AN
INTEGRATED SCHOOL SYSTEM, DISTRICT COURTS MUST INSURE THAT AFFIRMATIVE
DESEGREGATIVE STEPS ENSUE.  MANY OF THESE CAN BE TAKEN EFFECTIVELY
WITHOUT DAMAGING STATE AND PARENTAL INTERESTS IN HAVING CHILDREN ATTEND
SCHOOLS WITHIN A REASONABLE VICINITY OF HOME.  WHERE DESEGREGATIVE
STEPS ARE POSSIBLE WITHIN THE FRAMEWORK OF A SYSTEM OF "NEIGHBORHOOD
EDUCATION," SCHOOL AUTHORITIES MUST PURSUE THEM.  FOR EXAMPLE,
BOUNDARIES OF NEIGHBORHOOD ATTENDANCE ZONES SHOULD BE DRAWN TO
INTEGRATE, TO THE EXTENT PRACTICABLE, THE SCHOOL'S STUDENT BODY. 
CONSTRUCTION OF NEW SCHOOLS SHOULD BE OF SUCH A SIZE AND AT SUCH A
LOCATION AS TO ENCOURAGE THE LIKELIHOOD OF INTEGRATION, SWANN, SUPRA,
AT 21. 

[[HC241'(ORIGINAL DOCUMENT PAGE 241)'  FACULTY INTEGRATION SHOULD BE
ATTAINED THROUGHOUT THE SCHOOL SYSTEM, ID., AT 19; UNITED STATES V.
MONTGOMERY COUNTY BOARD OF EDUCATION, 395 U.S. 225 (1969).  AN OPTIONAL
MAJORITY-TO-MINORITY TRANSFER PROGRAM WITH THE STATE PROVIDING FREE
TRANSPORTATION TO DESIRING STUDENTS, IS ALSO A HELPFUL ADJUNCT TO A
DESEGREGATED SCHOOL SYSTEM.  SWANN, SUPRA, AT 26 - 27.  IT HARDLY NEED
BE REPEATED THAT ALLOCATION OF RESOURCES WITHIN THE SCHOOL DISTRICT
MUST BE MADE WITH SCRUPULOUS FAIRNESS AMONG ALL SCHOOLS. 

THE ABOVE EXAMPLES ARE MEANT TO BE ILLUSTRATIVE, NOT EXHAUSTIVE. 
THE POINT IS THAT THE OVERALL INTEGRATIVE IMPACT OF SUCH SCHOOL BOARD
DECISIONS MUST BE ASSESSED BY DISTRICT COURTS IN DECIDING WHETHER THE
DUTY TO DESEGREGATE HAS BEEN MET.  FOR EXAMPLE, "NEIGHBORHOOD SCHOOL
PLANS ARE CONSTITUTIONALLY SUSPECT WHEN ATTENDANCE ZONES ARE
SUPERFICIALLY IMPOSED UPON RACIALLY DEFINED NEIGHBORHOODS, AND WHEN
SCHOOL CONSTRUCTION PRESERVES RATHER THAN ELIMINATES THE RACIAL
HOMOGENY (SIC) OF GIVEN SCHOOLS."  /20/  KEYES V. SCHOOL DISTRICT NO.
1, 445 F.2D 990, 1005 (CA10 1971).  UNITED STATES V. BOARD OF EDUCATION
OF TULSA COUNTY, 429 F.2D 1253, 1258 - 1259 (CA10 1970).  THIS DOES NOT
IMPLY THAT DECISIONS ON FACULTY ASSIGNMENT, ATTENDANCE ZONES, SCHOOL
CONSTRUCTION, CLOSING AND CONSOLIDATION, MUST BE MADE TO THE DETRIMENT
OF ALL NEUTRAL, NONRACIAL CONSIDERATIONS.  BUT THESE CONSIDERATIONS
CAN, WITH PROPER SCHOOL BOARD INITIATIVE, GENERALLY BE MET IN A MANNER
THAT WILL ENHANCE THE DEGREE OF SCHOOL DESEGREGATION. 

        C 

DEFAULTING SCHOOL AUTHORITIES WOULD HAVE, AT A MINIMUM, THE
OBLIGATION TO TAKE AFFIRMATIVE STEPS OF THE SORT OUTLINED IN THE ABOVE

[[HC242'(ORIGINAL DOCUMENT PAGE 242)'  SCHOOL BOARDS WOULD, OF
COURSE, BE FREE TO DEVELOP AND INITIATE FURTHER PLANS TO PROMOTE SCHOOL
DESEGREGATION.  IN A PLURALISTIC SOCIETY SUCH AS OURS, IT IS ESSENTIAL
THAT NO RACIAL MINORITY FEEL DEMEANED OR DISCRIMINATED AGAINST AND THAT
STUDENTS OF ALL RACES LEARN TO PLAY, WORK, AND COOPERATE WITH ONE
ANOTHER IN THEIR COMMON PURSUITS AND ENDEAVORS.  NOTHING IN THIS
OPINION IS MEANT TO DISCOURAGE SCHOOL BOARDS FROM EXCEEDING MINIMAL
CONSTITUTIONAL STANDARDS IN PROMOTING THE VALUES OF AN INTEGRATED
SCHOOL EXPERIENCE. 

A CONSTITUTIONAL REQUIREMENT OF EXTENSIVE STUDENT TRANSPORTATION
SOLELY TO ACHIEVE INTEGRATION PRESENTS A VASTLY MORE COMPLEX PROBLEM. 
IT PROMISES, ON THE ONE HAND, A GREATER DEGREE OF ACTUAL DESEGREGATION,
WHILE IT INFRINGES ON WHAT MAY FAIRLY BE REGARDED AS OTHER IMPORTANT
COMMUNITY ASPIRATIONS AND PERSONAL RIGHTS.  SUCH A REQUIREMENT IS ALSO
LIKELY TO DIVERT ATTENTION AND RESOURCES FROM THE FOREMOST GOAL OF ANY
SCHOOL SYSTEM:  THE BEST QUALITY EDUCATION FOR ALL PUPILS.  THE EQUAL
PROTECTION CLAUSE DOES, INDEED, COMMAND THAT RACIAL DISCRIMINATION NOT
BE TOLERATED IN THE DECISIONS OF PUBLIC SCHOOL AUTHORITIES.  BUT IT
DOES NOT REQUIRE THAT SCHOOL AUTHORITIES UNDERTAKE WIDESPREAD STUDENT
TRANSPORTATION SOLELY FOR THE SAKE OF MAXIMIZING INTEGRATION.  /21/ 

THIS OBVIOUSLY DOES NOT MEAN THAT BUS TRANSPORTATION HAS NO PLACE IN
PUBLIC SCHOOL SYSTEMS OR IS NOT A PERMISSIBLE MEANS IN THE
DESEGREGATIVE PROCESS. 

[[HC243'(ORIGINAL DOCUMENT PAGE 243)'  THE TRANSPORTING OF SCHOOL
CHILDREN IS AS OLD AS PUBLIC EDUCATION, AND IN RURAL AND SOME SUBURBAN
SETTINGS IT IS AS INDISPENSABLE AS THE PROVIDING OF BOOKS.  IT IS
PRESENTLY ESTIMATED THAT APPROXIMATELY HALF OF ALL AMERICAN CHILDREN
RIDE BUSES TO SCHOOL FOR REASONS UNRELATED TO INTEGRATION.  /22/  AT
THE SECONDARY LEVEL IN PARTICULAR, WHERE THE SCHOOLS ARE LARGER AND
SERVE A WIDER, MORE DISPERSED CONSTITUENCY THAN ELEMENTARY SCHOOLS,
SOME FORM OF PUBLIC OR PRIVATELY FINANCED TRANSPORTATION IS OFTEN
NECESSARY.  THERE IS A SIGNIFICANT DIFFERENCE, HOWEVER, IN
TRANSPORTATION PLANS VOLUNTARILY INITIATED BY LOCAL SCHOOL BOARDS FOR
EDUCATIONAL PURPOSES AND THOSE IMPOSED BY A FEDERAL COURT.  THE FORMER
USUALLY REPRESENT A NECESSARY OR CONVENIENT MEANS OF ACCESS TO THE
SCHOOL NEAREST HOME; THE LATTER OFTEN REQUIRE LENGTHY TRIPS FOR NO
PURPOSE OTHER THAN TO FURTHER INTEGRATION.  /23/  YET THE COURT IN
SWANN WAS UNQUESTIONABLY RIGHT IN DESCRIBING BUS TRANSPORTATION AS "ONE
TOOL OF SCHOOL DESEGREGATION."  402 U.S., AT 30.  /24/ 

[[HC244'(ORIGINAL DOCUMENT PAGE 244)'  THE CRUCIAL ISSUE IS WHEN,
UNDER WHAT CIRCUMSTANCES, AND TO WHAT EXTENT SUCH TRANSPORTATION MAY
APPROPRIATELY BE ORDERED.  THE ANSWER TO THIS TURNS--AS IT DOES SO
OFTEN IN THE LAW--UPON A SOUND EXERCISE OF DISCRETION UNDER THE
CIRCUMSTANCES. 

SWANN ITSELF RECOGNIZED LIMITS TO DESEGREGATIVE OBLIGATIONS.  IT
NOTED THAT A CONSTITUTIONAL REQUIREMENT OF "ANY PARTICULAR DEGREE OF
RACIAL BALANCE OR MIXING . . . WOULD BE DISAPPROVED . . . ," AND
SANCTIONED DISTRICT COURT USE OF MATHEMATICAL RATIOS AS "NO MORE THAN A
STARTING POINT IN THE PROCESS OF SHAPING A REMEDY . . . ."  ID., AT 24,
25.  THUS, PARTICULAR SCHOOLS MAY BE ALL WHITE, OR ALL BLACK AND STILL
NOT INFRINGE CONSTITUTIONAL RIGHTS IF THE SYSTEM IS GENUINELY
INTEGRATED AND SCHOOL AUTHORITIES ARE PURSUING INTEGRATIVE STEPS SHORT
OF EXTENSIVE AND DISRUPTIVE TRANSPORTATION.  THE REFUSAL OF THE COURT
IN SWANN TO REQUIRE RACIAL BALANCE IN SCHOOLS THROUGHOUT THE DISTRICT
OR THE ARBITRARY ELIMINATION OF ALL "ONE-RACE SCHOOLS," ID., AT 26, IS
GROUNDED IN A RECOGNITION THAT THE STATE, PARENTS, AND CHILDREN ALL
HAVE AT STAKE IN SCHOOL DESEGREGATION DECREES, LEGITIMATE AND
RECOGNIZABLE INTERESTS. 

[[HC245'(ORIGINAL DOCUMENT PAGE 245)' 

THE PERSONAL INTEREST MIGHT BE CHARACTERIZED AS THE DESIRE THAT
CHILDREN ATTEND COMMUNITY SCHOOLS NEAR HOME.  DR. JAMES COLEMAN
TESTIFIED FOR PETITIONERS AT TRIAL THAT "MOST SCHOOL SYSTEMS ORGANIZE
THEIR SCHOOLS IN RELATION TO THE RESIDENTS BY HAVING FIXED SCHOOL
DISTRICTS AND SOME OF THESE ARE VERY ETHNICALLY HOMOGENEOUS."  APP.
1549A.  IN DEAL V. CINCINNATI BOARD OF EDUCATION, 369 F.2D, AT 60, THE
SIXTH CIRCUIT SUMMARIZED THE ADVANTAGES OF SUCH A NEIGHBORHOOD SYSTEM
OF SCHOOLS:  /25/ 

     "APPELLANTS, HOWEVER, POSE THE QUESTION OF WHETHER THE

  NEIGHBORHOOD SYSTEM OF PUPIL PLACEMENT, FAIRLY ADMINISTERED

  WITHOUT RACIAL BIAS, COMPORTS WITH THE REQUIREMENTS OF EQUAL

  OPPORTUNITY IF IT NEVERTHELESS RESULTS IN THE CREATION OF SCHOOLS

WITH PREDOMINANTLY OR EVEN EXCLUSIVELY NEGRO PUPILS.  THE

NEIGHBORHOOD SYSTEM IS IN WIDE USE THROUGHOUT THE NATION AND HAS

  BEEN FOR MANY YEARS THE BASIS OF SCHOOL ADMINISTRATION.  THIS IS

  SO BECAUSE IT IS ACKNOWLEDGED TO HAVE SEVERAL VALUABLE ASPECTS

  WHICH ARE AN AID TO EDUCATION, SUCH AS MINIMIZATION OF SAFETY

  HAZARDS TO CHILDREN IN REACHING SCHOOL, ECONOMY OF COST IN

  REDUCING TRANSPORTATION NEEDS, EASE OF PUPIL PLACEMENT AND

  ADMINISTRATION THROUGH THE USE OF NEUTRAL, EASILY DETERMINED

  STANDARDS, AND BETTER HOME-SCHOOL COMMUNICATION." 

[[HC246'(ORIGINAL DOCUMENT PAGE 246)'  THE NEIGHBORHOOD SCHOOL DOES
PROVIDE GREATER EASE OF PARENTAL AND STUDENT ACCESS AND CONVENIENCE, AS
WELL AS GREATER ECONOMY OF PUBLIC ADMINISTRATION.  THESE ARE OBVIOUS
AND DISTINCT ADVANTAGES, BUT THE LEGITIMACY OF THE NEIGHBORHOOD CONCEPT
RESTS ON MORE BASIC GROUNDS.  /26/ 

NEIGHBORHOOD SCHOOL SYSTEMS, NEUTRALLY ADMINISTERED, REFLECT THE
DEEPLY FELT DESIRE OF CITIZENS FOR A SENSE OF COMMUNITY IN THEIR PUBLIC
EDUCATION.  PUBLIC SCHOOLS HAVE BEEN A TRADITIONAL SOURCE OF STRENGTH
TO OUR NATION, AND THAT STRENGTH MAY DERIVE IN PART FROM THE
IDENTIFICATION OF MANY SCHOOLS WITH THE PERSONAL FEATURES OF THE
SURROUNDING NEIGHBORHOOD.  COMMUNITY SUPPORT, INTEREST, AND DEDICATION
TO PUBLIC SCHOOLS MAY WELL RUN HIGHER WITH A NEIGHBORHOOD ATTENDANCE
PATTERN:  DISTANCE MAY ENCOURAGE DISINTEREST.  MANY CITIZENS SENSE
TODAY A DECLINE IN THE INTIMACY OF OUR INSTITUTIONS--HOME, CHURCH, AND
SCHOOL--WHICH HAS CAUSED A CONCOMITANT DECLINE IN THE UNITY AND
COMMUNAL SPIRIT OF OUR PEOPLE.  I PASS NO JUDGMENT ON THIS VIEWPOINT,
BUT I DO BELIEVE THAT THIS COURT SHOULD BE WARY OF COMPELLING IN THE
NAME OF CONSTITUTIONAL LAW WHAT MAY SEEM TO MANY A DISSOLUTION IN THE
TRADITIONAL, MORE PERSONAL FABRIC OF THEIR PUBLIC SCHOOLS. 

CLOSELY RELATED TO THE CONCEPT OF A COMMUNITY AND NEIGHBORHOOD
EDUCATION, ARE THOSE RIGHTS AND DUTIES PARENTS HAVE WITH RESPECT TO THE
EDUCATION OF THEIR CHILDREN.  THE LAW HAS LONG RECOGNIZED THE PARENTAL
DUTY TO NURTURE, SUPPORT, AND PROVIDE FOR THE WELFARE OF CHILDREN,
INCLUDING THEIR EDUCATION. 

[[HC247'(ORIGINAL DOCUMENT PAGE 247)'  IN PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510, 534 - 535, A UNANIMOUS COURT HELD THAT: 

     "UNDER THE DOCTRINE OF MEYER V. NEBRASKA, 262 U.S. 390, WE

  THINK IT ENTIRELY PLAIN THAT THE ACT OF 1922 UNREASONABLY

  INTERFERES WITH THE LIBERTY OF PARENTS AND GUARDIANS TO DIRECT

  THE UPBRINGING AND EDUCATION OF CHILDREN UNDER THEIR CONTROL.  .
.

  . THE CHILD IS NOT THE MERE CREATURE OF THE STATE; THOSE WHO

  NURTURE HIM AND DIRECT HIS DESTINY HAVE THE RIGHT, COUPLED WITH

  THE HIGH DUTY, TO RECOGNIZE AND PREPARE HIM FOR ADDITIONAL

  OBLIGATIONS." 

AND IN GRISWOLD V. CONNECTICUT, 381 U.S. 479, 482 (1965), THE COURT
NOTED THAT IN PIERCE, "THE RIGHT TO EDUCATE ONE'S CHILDREN AS ONE
CHOOSES IS MADE APPLICABLE TO THE STATES BY THE FORCE OF THE FIRST AND
FOURTEENTH AMENDMENTS."  I DO NOT BELIEVE RECOGNITION OF THIS RIGHT CAN
BE CONFINED SOLELY TO A PARENT'S CHOICE TO SEND A CHILD TO PUBLIC OR
PRIVATE SCHOOL.  MOST PARENTS CANNOT AFFORD THE LUXURY OF A PRIVATE
EDUCATION FOR THEIR CHILDREN, AND THE DUAL OBLIGATION OF PRIVATE
TUITIONS AND PUBLIC TAXES.  THOSE WHO MAY FOR NUMEROUS REASONS SEEK
PUBLIC EDUCATION FOR THEIR CHILDREN SHOULD NOT BE FORCED TO FORFEIT ALL
INTEREST OR VOICE IN THE SCHOOL THEIR CHILD ATTENDS.  IT WOULD, OF
COURSE, BE IMPRACTICAL TO ALLOW THE WISHES OF PARTICULAR PARENTS TO BE
CONTROLLING.  YET THE INTEREST OF THE PARENT IN THE ENHANCED PARENT
SCHOOL AND PARENT-CHILD COMMUNICATION ALLOWED BY THE NEIGHBORHOOD UNIT
OUGHT NOT TO BE SUPPRESSED BY FORCE OF LAW.     IN THE COMMENDABLE
NATIONAL CONCERN FOR ALLEVIATING PUBLIC SCHOOL SEGREGATION, COURTS MAY
HAVE OVERLOOKED THE FACT THAT THE RIGHTS AND INTERESTS OF CHILDREN
AFFECTED BY A DESEGREGATION PROGRAM ALSO ARE ENTITLED TO
CONSIDERATION.  ANY CHILD, WHITE OR BLACK, WHO IS COMPELLED TO LEAVE
HIS NEIGHBORHOOD AND SPEND SIGNIFICANT TIME EACH DAY BEING TRANSPORTED
TO A DISTANT SCHOOL SUFFERS AN IMPAIRMENT OF HIS LIBERTY AND HIS
PRIVACY. 

[[HC248'(ORIGINAL DOCUMENT PAGE 248)'  NOT LONG AGO, JAMES B. CONANT
WROTE THAT "(AT THE ELEMENTARY SCHOOL LEVEL THE ISSUE SEEMS CLEAR.  TO
SEND YOUNG CHILDREN DAY AFTER DAY TO DISTANT SCHOOLS BY BUS SEEMS OUT
OF THE QUESTION."  /27/  A COMMUNITY MAY WELL CONCLUDE THAT THE PORTION
OF A CHILD'S DAY SPENT ON A BUS MIGHT BE USED MORE CREATIVELY IN A
CLASSROOM, PLAYGROUND, OR IN SOME OTHER EXTRACURRICULAR SCHOOL
ACTIVITY.  DECISIONS SUCH AS THESE, AFFECTING THE QUALITY OF A CHILD'S
DAILY LIFE, SHOULD NOT LIGHTLY BE HELD CONSTITUTIONALLY ERRANT. 

UP TO THIS POINT I HAVE FOCUSED MAINLY ON THE PERSONAL INTERESTS OF
PARENTS AND CHILDREN WHICH A COMMUNITY MAY BELIEVE TO BE BEST PROTECTED
BY A NEIGHBORHOOD SYSTEM OF SCHOOLS.  BUT BROADER CONSIDERATIONS LEAD
ME TO QUESTION JUST AS SERIOUSLY ANY REMEDIAL REQUIREMENT OF EXTENSIVE
STUDENT TRANSPORTATION SOLELY TO FURTHER INTEGRATION.  ANY SUCH
REQUIREMENT IS CERTAIN TO FALL DISPROPORTIONATELY ON THE SCHOOL
DISTRICTS OF OUR COUNTRY, DEPENDING ON THEIR DEGREE OF URBANIZATION,
FINANCIAL RESOURCES, AND THEIR RACIAL COMPOSITION.  SOME DISTRICTS WITH
LITTLE OR NO BIRACIAL POPULATION WILL EXPERIENCE LITTLE OR NO
EDUCATIONAL DISRUPTION, WHILE OTHERS, NOTABLY IN LARGE, BIRACIAL
METROPOLITAN AREAS, MUST AT CONSIDERABLE EXPENSE UNDERTAKE EXTENSIVE
TRANSPORTATION TO ACHIEVE THE TYPE OF INTEGRATION FREQUENTLY BEING
ORDERED BY DISTRICT COURTS.  /28/  AT A TIME WHEN PUBLIC EDUCATION
GENERALLY IS SUFFERING SERIOUS FINANCIAL MALNUTRITION, THE ECONOMIC
BURDENS OF SUCH TRANSPORTATION CAN BE SEVERE, REQUIRING BOTH INITIAL
CAPITAL OUTLAYS AND ANNUAL OPERATING COSTS IN THE MILLIONS OF DOLLARS. 
/29/  AND WHILE CONSTITUTIONAL REQUIREMENTS HAVE OFTEN OCCASIONED
UNEVEN BURDENS, NEVER HAVE THEY TOUCHED SO SENSITIVE A MATTER AS WIDE
DIFFERENCES IN THE COMPULSORY TRANSPORTATION REQUIREMENTS FOR LITERALLY
HUNDREDS OF THOUSANDS OF SCHOOL CHILDREN. 

[[HC249'(ORIGINAL DOCUMENT PAGE 249)' 

THE ARGUMENT FOR STUDENT TRANSPORTATION ALSO OVERLOOKS THE FACT THAT
THE REMEDY EXCEEDS THAT WHICH MAY BE NECESSARY TO REDRESS THE
CONSTITUTIONAL EVIL.  LET US USE DENVER AS AN EXAMPLE.  THE DENVER
SCHOOL BOARD, BY ITS ACTION AND NONACTION, MAY BE LEGALLY RESPONSIBLE
FOR SOME OF THE SEGREGATION THAT EXISTS.  BUT IF ONE ASSUMES A MAXIMUM
DISCHARGE OF CONSTITUTIONAL DUTY BY THE DENVER BOARD OVER THE PAST
DECADES, THE FUNDAMENTAL PROBLEM OF RESIDENTIAL SEGREGATION WOULD
PERSIST.  /30/  IT IS, INDEED, A NOVEL APPLICATION OF EQUITABLE POWER-
NOT TO MENTION A DUBIOUS EXTENSION OF CONSTITUTIONAL DOCTRINE--TO
REQUIRE SO MUCH GREATER A DEGREE OF FORCED SCHOOL INTEGRATION THAN
WOULD HAVE RESULTED FROM PURELY NATURAL AND NEUTRAL NONSTATE CAUSES. 

THE COMPULSORY TRANSPORTATION OF STUDENTS CARRIES A FURTHER
INFIRMITY AS A CONSTITUTIONAL REMEDY.  WITH MOST CONSTITUTIONAL
VIOLATIONS, THE MAJOR BURDEN OF REMEDIAL ACTION FALLS ON OFFENDING
STATE OFFICIALS.  PUBLIC OFFICIALS WHO ACT TO INFRINGE PERSONAL RIGHTS
OF SPEECH, VOTING, OR RELIGIOUS EXERCISE, FOR EXAMPLE, ARE OBLIGED TO
CEASE THE OFFENDING ACT OR PRACTICE AND, WHERE NECESSARY, INSTITUTE
CORRECTIVE MEASURES.  IT IS THEY WHO BEAR THE BRUNT OF REMEDIAL ACTION,
THOUGH OTHER CITIZENS WILL TO VARYING DEGREES FEEL ITS EFFECTS. 

[[HC250'(ORIGINAL DOCUMENT PAGE 250)'  SCHOOL AUTHORITIES
RESPONSIBLE FOR SEGREGATION MUST, AT THE VERY MINIMUM, DISCONTINUE
SEGREGATIVE ACTS.  BUT WHEN THE OBLIGATION FURTHER EXTENDS TO THE
TRANSPORTATION OF STUDENTS, THE FULL BURDEN OF THE AFFIRMATIVE REMEDIAL
ACTION IS BORNE BY CHILDREN AND PARENTS WHO DID NOT PARTICIPATE IN ANY
CONSTITUTIONAL VIOLATION. 

FINALLY, COURTS IN REQUIRING SO FAR-REACHING A REMEDY AS STUDENT
TRANSPORTATION SOLELY TO MAXIMIZE INTEGRATION, RISK SETTING IN MOTION
UNPREDICTABLE AND UNMANAGEABLE SOCIAL CONSEQUENCES.  NO ONE CAN
ESTIMATE THE EXTENT TO WHICH DISMANTLING NEIGHBORHOOD EDUCATION WILL
HASTEN AN EXODUS TO PRIVATE SCHOOLS, LEAVING PUBLIC SCHOOL SYSTEMS THE
PRESERVE OF THE DISADVANTAGED OF BOTH RACES.  OR GUESS HOW MUCH IMPETUS
SUCH DISMANTLEMENT GIVES THE MOVEMENT FROM INNER CITY TO SUBURB, AND
THE FURTHER GEOGRAPHICAL SEPARATION OF THE RACES.  NOR DO WE KNOW TO
WHAT DEGREE THIS REMEDY MAY CAUSE DETERIORATION OF COMMUNITY AND
PARENTAL SUPPORT OF PUBLIC SCHOOLS, OR DIVERT ATTENTION FROM THE
PARAMOUNT GOAL OF QUALITY IN EDUCATION TO A PERENNIALLY DIVISIVE DEBATE
OVER WHO IS TO BE TRANSPORTED WHERE. 

THE PROBLEM ADDRESSED IN THIS OPINION HAS PERPLEXED COURTS, SCHOOL
OFFICIALS, OTHER PUBLIC AUTHORITIES, AND STUDENTS OF PUBLIC EDUCATION
FOR NEARLY TWO DECADES.  THE PROBLEM, ESPECIALLY SINCE IT HAS FOCUSED
ON THE "BUSING ISSUE," HAS PROFOUNDLY DISQUITED THE PUBLIC WHEREVER
EXTENSIVE TRANSPORTATION HAS BEEN ORDERED.  I MAKE NO PRETENSE OF
KNOWING THE BEST ANSWERS.  YET, THE ISSUE IN THIS AND LIKE CASES COMES
TO THIS COURT AS ONE OF CONSTITUTIONAL LAW.  AS TO THIS ISSUE, I HAVE
NO DOUBT WHATEVER.  THERE IS NOTHING IN THE CONSTITUTION, ITS HISTORY,
OR--UNTIL RECENTLY--IN THE JURISPRUDENCE OF THIS COURT THAT MANDATES
THE EMPLOYMENT OF FORCED TRANSPORTATION OF YOUNG AND TEENAGE CHILDREN
TO ACHIEVE A SINGLE INTEREST, AS IMPORTANT AS THAT INTEREST MAY BE. 

[[HC251'(ORIGINAL DOCUMENT PAGE 251)'  WE HAVE STRAYED, QUITE FAR AS
I VIEW IT, FROM THE RATIONALE OF BROWN I AND II, AS REITERATED IN
SWANN, THAT COURTS IN FASHIONING REMEDIES MUST BE "GUIDED BY EQUITABLE
PRINCIPLES" WHICH INCLUDE THE "ADJUSTING AND RECONCILING (OF) PUBLIC
AND PRIVATE NEEDS," BROWN II, 349 U.S., AT 300. 

I URGE A RETURN TO THIS RATIONALE.  THIS WOULD RESULT, AS EMPHASIZED
ABOVE, IN NO PROHIBITION ON COURT-ORDERED STUDENT TRANSPORTATION IN
FURTHERANCE OF DESEGREGATION.  BUT IT WOULD REQUIRE THAT THE LEGITIMATE
COMMUNITY INTERESTS IN NEIGHBORHOOD SCHOOL SYSTEMS BY ACCORDED FAR
GREATER RESPECT.  IN THE BALANCING OF INTERESTS SO APPROPRIATE TO A
FAIR AND JUST EQUITABLE DECREE, TRANSPORTATION ORDERS SHOULD BE APPLIED
WITH SPECIAL CAUTION TO ANY PROPOSAL AS DISRUPTIVE OF FAMILY LIFE AND
INTERESTS--AND ULTIMATELY OF EDUCATION ITSELF--AS EXTENSIVE
TRANSPORTATION OF ELEMENTARY-AGE CHILDREN SOLELY FOR DESEGREGATION
PURPOSES.  AS A MINIMUM, THIS COURT SHOULD NOT REQUIRE SCHOOL BOARDS TO
ENGAGE IN THE UNNECESSARY TRANSPORTATION AWAY FROM THEIR NEIGHBORHOODS
OF ELEMENTARY-AGE CHILDREN.  /31/  IT IS AT THIS AGE LEVEL THAT
NEIGHBORHOOD EDUCATION PERFORMS ITS MOST VITAL ROLE.  IT IS WITH
RESPECT TO CHILDREN OF TENDER YEARS THAT THE GREATEST CONCERN EXISTS
FOR THEIR PHYSICAL AND PSYCHOLOGICAL HEALTH.  IT IS ALSO HERE, AT THE
ELEMENTARY SCHOOL, THAT THE RIGHTS OF PARENTS AND CHILDREN ARE MOST
SHARPLY IMPLICATED.  /32/

        IV 

THE EXISTING STATE OF LAW HAS FAILED TO SHED LIGHT AND PROVIDE
GUIDANCE ON THE TWO ISSUES ADDRESSED IN THIS OPINION:  (1) WHETHER A
CONSTITUTIONAL RULE OF UNIFORM, NATIONAL APPLICATION SHOULD BE ADOPTED
WITH RESPECT TO OUR NATIONAL PROBLEM OF SCHOOL DESEGREGATION AND (II),
IF SO, WHETHER THE AMBIGUITIES OF SWANN, CONSTRUED TO DATE ALMOST
UNIFORMLY IN FAVOR OF EXTENSIVE TRANSPORTATION, SHOULD BE REDEFINED TO
RESTORE A MORE VIABLE BALANCE AMONG THE VARIOUS INTERESTS WHICH ARE
INVOLVED.  WITH ALL DEFERENCE, IT SEEMS TO ME THAT THE COURT TODAY HAS
ADDRESSED NEITHER OF THESE ISSUES IN A WAY THAT WILL AFFORD ADEQUATE
GUIDANCE TO THE COURTS BELOW IN THIS CASE OR LEAD TO A RATIONAL,
COHERENT NATIONAL POLICY. 

THE COURT HAS CHOSEN, RATHER, TO ADHERE TO THE DE FACTO/DE JURE
DISTINCTION UNDER CIRCUMSTANCES, AND UPON A RATIONALE, WHICH CAN ONLY
LEAD TO INCREASED AND INCONCLUSIVE LITIGATION, AND--ESPECIALLY
REGRETTABLE--TO DEFERMENT OF A NATIONALLY CONSISTENT JUDICIAL POSITION
ON THIS SUBJECT.  THERE IS, OF COURSE, STATE ACTION IN EVERY SCHOOL
DISTRICT IN THE LAND.  THE PUBLIC SCHOOLS ALWAYS HAVE BEEN FUNDED AND
OPERATED BY STATES AND THEIR LOCAL SUBDIVISIONS.  IT IS TRUE THAT
SEGREGATED SCHOOLS, EVEN IN THE CITIES OF THE SOUTH, ARE IN LARGE PART
THE PRODUCT OF SOCIAL AND ECONOMIC FACTS--AND THE RESULTING RESIDENTIAL
PATTERNS.  BUT THERE IS ALSO NOT A SCHOOL DISTRICT IN THE UNITED
STATES, WITH ANY SIGNIFICANT MINORITY SCHOOL POPULATION, IN WHICH THE
SCHOOL AUTHORITIES--IN ONE WAY OR THE OTHER--HAVE NOT CONTRIBUTED IN
SOME MEASURE TO THE DEGREE OF SEGREGATION WHICH STILL PREVAILS. 

[[HC253'(ORIGINAL DOCUMENT PAGE 253)'  INSTEAD OF RECOGNIZING THE
REALITY OF SIMILAR, MULTIPLE SEGREGATIVE CAUSES IN SCHOOL DISTRICTS
THROUGHOUT THE COUNTRY, THE COURT PERSISTS IN A DISTINCTION WHOSE
DUALITY OPERATES UNFAIRLY ON LOCAL COMMUNITIES IN ONE SECTION OF THE
COUNTRY AND ON MINORITY CHILDREN IN THE OTHERS. 

THE SECOND ISSUE RELATES TO THE AMBIGUITIES OF SWANN AND THE
JUDICIAL DISREGARD OF LEGITIMATE COMMUNITY AND INDIVIDUAL INTERESTS IN
FRAMING EQUITABLE DECREES.  IN THE ABSENCE OF A MORE FLEXIBLE AND
REASONABLE STANDARD THAN THAT IMPOSED BY DISTRICT COURTS AFTER SWANN,
THE DESEGREGATION WHICH WILL NOW BE DECREED IN DENVER AND OTHER MAJOR
CITIES MAY WELL INVOLVE EVEN MORE EXTENSIVE TRANSPORTATION THAN HAS
BEEN WITNESSED UP TO THIS TIME. 

IT IS WELL TO REMEMBER THAT THE COURSE WE ARE RUNNING IS A LONG ONE
AND THE GOAL SOUGHT IN THE END--SO OFTEN OVERLOOKED--IS THE BEST
POSSIBLE EDUCATIONAL OPPORTUNITY FOR ALL CHILDREN.  COMMUNITIES DESERVE
THE FREEDOM AND THE INCENTIVE TO TURN THEIR ATTENTION AND ENERGIES TO
THIS GOAL OF QUALITY EDUCATION, FREE FROM PROTRACTED AND DEBILITATING
BATTLES OVER COURT-ORDER STUDENT TRANSPORTATION.  THE SINGLE MOST
DISRUPTIVE ELEMENT IN EDUCATION TODAY IS THE WIDESPREAD USE OF
COMPULSORY TRANSPORTATION, ESPECIALLY AT ELEMENTARY GRADE LEVELS.  THIS
HAS RISKED DISTRACTING AND DIVERTING ATTENTION FROM BASIC EDUCATIONAL
ENDS, DIVIDING AND EMBITTERING COMMUNITIES, AND EXACERBATING, RATHER
THAN AMELIORATING, INTERRACIAL FRICTION AND MISUNDERSTANDING.  IT IS
TIME TO RETURN TO A MORE BALANCED EVALUATION OF THE RECOGNIZED
INTERESTS OF OUR SOCIETY IN ACHIEVING DESEGREGATION WITH OTHER
EDUCATIONAL AND SOCIETAL INTERESTS A COMMUNITY MAY LEGITIMATELY
ASSERT.  THIS WILL HELP ASSURE THAT INTEGRATED SCHOOL SYSTEMS WILL BE
ESTABLISHED AND MAINTAINED BY RATIONAL ACTION, WILL BE BETTER
UNDERSTOOD AND SUPPORTED BY PARENTS AND CHILDREN OF BOTH RACES, AND
WILL PROVIDE THE ENDURING QUALITIES OF AN INTEGRATED SOCIETY SO
ESSENTIAL TO ITS GENUINE SUCCESS. 

[[DFN 

/1/  ARTICLE IX, ^ 8, OF THE COLORADO CONSTITUTION HAS EXPRESSLY
PROHIBITED ANY "CLASSIFICATION OF PUPILS . . . ON ACCOUNT OF RACE OR
COLOR." 

/2/  SEE, E. G., SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION,
402 U.S. 1, 23 (1971):  "WE DO NOT REACH . . . THE QUESTION WHETHER A
SHOWING THAT SCHOOL SEGREGATION IS A CONSEQUENCE OF OTHER TYPES OF
STATE ACTION, WITHOUT ANY DISCRIMINATORY ACTION BY THE SCHOOL
AUTHORITIES, IS A CONSTITUTIONAL VIOLATION REQUIRING REMEDIAL ACTION BY
A SCHOOL DESEGREGATION DECREE."  THE TERM "STATE ACTION", AS USED
HEREIN, THUS REFERS TO ACTIONS OF THE APPROPRIATE PUBLIC SCHOOL
AUTHORITIES. 

/3/  ACCORDING TO THE 1972 DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE (HEW) ESTIMATE, 43.9% OF NEGRO PUPILS ATTENDED MAJORITY WHITE
SCHOOLS IN THE SOUTH AS OPPOSED TO ONLY 27.8% WHO ATTENDED SUCH SCHOOLS
IN THE NORTH AND WEST.  FIFTY-SEVEN PERCENT OF ALL NEGRO PUPILS IN THE
NORTH AND WEST ATTEND SCHOOLS WITH OVER 80% MINORITY POPULATION AS
OPPOSED TO 32.3% WHO DO SO IN THE SOUTH.  118 CONG. REC. 564 (1972). 

/4/  THE 1971 HEW ENROLLMENT SURVEY DRAMATIZED THE SEGREGATED
CHARACTER OF PUBLIC SCHOOL SYSTEMS IN MANY NONSOUTHERN CITIES.  THE
PERCENTAGE OF NEGRO PUPILS WHICH ATTENDED SCHOOLS MORE THAN 80% BLACK
WAS 91.3 IN CLEVELAND, OHIO; 97.8 IN COMPTON, CALIFORNIA; 78.1 IN
DAYTON, OHIO; 78.6 IN DETROIT, MICHIGAN; 95.7 IN GARY, INDIANA; 86.4 IN
KANSAS CITY, MISSOURI; 86.6 IN LOS ANGELES, CALIFORNIA; 78.8 IN
MILWAUKEE, WISCONSIN; 91.3 IN NEWARK, NEW JERSEY; 89.8 IN ST LOUIS,
MISSOURI.  THE FULL DATA FROM THE ENROLLMENT SURVEY MAY BE FOUND IN 118
CONG. REC. 563 - 566 (1972). 

/5/  AS SENATOR RIBICOFF RECOGNIZED: 

"FOR YEARS WE HAVE FOUGHT THE BATTLE OF INTEGRATION PRIMARILY IN THE
SOUTH WHERE THE PROBLEM WAS SEVERE.  IT WAS A LONG, ARDUOUS FIGHT THAT
DESERVED TO BE FOUGHT AND NEEDED TO BE WON. 

"UNFORTUNATELY, AS THE PROBLEM OF RACIAL ISOLATION HAS MOVED NORTH
OF THE MASON-DIXON LINE, MANY NORTHERNERS HAVE BID AN EVASIVE FAREWELL
TO THE 100-YEAR STRUGGLE FOR RACIAL EQUALITY.  OUR MOTTO SEEMS TO HAVE
BEEN 'DO TO SOUTHERNERS WHAT YOU DO NOT WANT TO DO TO YOURSELF.' 

"GOOD REASONS HAVE ALWAYS BEEN OFFERED, OF COURSE, FOR NOT MOVING
VIGOROUSLY AHEAD IN THE NORTH AS WELL AS THE SOUTH. 

"FIRST, IT WAS THAT THE PROBLEM WAS WORSE IN THE SOUTH.  THEN THE
FACTS BEGAN TO SHOW THAT THAT WAS NO LONGER TRUE. 

"WE THEN BEGAN TO HEAR THE DE FACTO-DE JURE REFRAIN. 

"SOMEHOW RESIDENTIAL SEGREGATION IN THE NORTH WAS ACCIDENTAL OR DE
FACTO AND THAT MADE IT BETTER THAN THE LEGALLY SUPPORTED DE JURE
SEGREGATION OF THE SOUTH.  IT WAS A HARD DISTINCTION FOR BLACK CHILDREN
IN TOTALLY SEGREGATED SCHOOLS IN THE NORTH TO UNDERSTAND, BUT IT
ALLOWED US TO AVOID THE PROBLEM."  118 CONG. REC. 5455 (1972).     /6/
SEE, E. G., BRADLEY V. SCHOOL BOARD, 345 F.2D 310, 316 (CA4 1965) (EN
BANC): 

"IT HAS BEEN HELD AGAIN AND AGAIN . . . THAT THE FOURTEENTH
AMENDMENT PROHIBITION IS NOT AGAINST SEGREGATION AS SUCH.  . . . A
STATE OR A SCHOOL DISTRICT OFFENDS NO CONSTITUTIONAL REQUIREMENT WHEN
IT GRANTS TO ALL STUDENTS UNIFORMLY AN UNRESTRICTED FREEDOM OF CHOICE
AS TO SCHOOLS ATTENDED, SO THAT EACH PUPIL, IN EFFECT, ASSIGNS HIMSELF
TO THE SCHOOL HE WISHES TO ATTEND."  (THE CASE WAS LATER VACATED AND
REMANDED BY THIS COURT, WHICH EXPRESSED NO VIEW ON THE MERITS OF THE
DESEGREGATION PLANS SUBMITTED.)  382 U.S. 103, 105 (1965).  SEE ALSO
BELL V. SCHOOL CITY OF GARY, IND., 324 F.2D 209 (CA7 1963); DOWNS V.
BOARD OF EDUCATION, 336 F.2D 988 (CA10 1964); DEAL V. CINCINNATI BOARD
OF EDUCATION, 369 F.2D 55 (CA6 1966). 

/7/  FOR A CONCISE HISTORY AND COMMENTARY ON THE EVOLUTION, SEE
GENERALLY A. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 126 -
130 (1970). 

/8/  SEE ALSO THE COMPANION CASES IN RANEY V. BOARD OF EDUCATION,
391 U.S. 443 (1968), AND MONROE V. BOARD OF COMMISSIONERS, 391 U.S. 450
(1968), NEITHER OF WHICH INVOLVED LARGE URBAN OR METROPOLITAN AREAS. 

/9/  AS DR. KARL TAEUBER STATES IN HIS ARTICLE, RESIDENTIAL
SEGREGATION, 213 SCIENTIFIC AMERICAN 12, 14 (AUG. 1965): 

"NO ELABORATE ANALYSIS IS NECESSARY TO CONCLUDE FROM THESE FIGURES
THAT A HIGH DEGREE OF RESIDENTIAL SEGREGATION BASED ON RACE IS A
UNIVERSAL CHARACTERISTIC OF AMERICAN CITIES.  THIS SEGREGATION IS FOUND
IN THE CITIES OF THE NORTH AND WEST AS WELL AS OF THE SOUTH; IN LARGE
CITIES AS WELL AS SMALL; IN NONINDUSTRIAL CITIES AS WELL AS INDUSTRIAL;
IN CITIES WITH HUNDREDS OF THOUSANDS OF NEGRO RESIDENTS AS WELL AS
THOSE WITH ONLY A FEW THOUSAND, AND IN CITIES THAT ARE PROGRESSIVE IN
THEIR EMPLOYMENT PRACTICES AND CIVIL RIGHTS POLICIES AS WELL AS THOSE
THAT ARE NOT."  IN HIS BOOK, NEGROES IN CITIES (1965), DR. TAUEBER
STATED THAT RESIDENTIAL SEGREGATION EXISTS "REGARDLESS OF THE CHARACTER
OF LOCAL LAWS AND POLICIES, AND REGARDLESS OF THE EXTENT OF OTHER FORMS
OF SEGREGATION OR DISCRIMINATION."  ID., AT 36. 

/10/  A PRIMA FACIE CASE OF CONSTITUTIONAL VIOLATION EXISTS WHEN
SEGREGATION IS FOUND TO A SUBSTANTIAL DEGREE IN THE SCHOOLS OF A
PARTICULAR DISTRICT.  IT IS RECOGNIZED, OF COURSE, THAT THIS TERM IS
RELATIVE AND PROVIDES NO PRECISE STANDARDS.  BUT CIRCUMSTANCES,
DEMOGRAPHIC AND OTHERWISE, VARY FROM DISTRICT TO DISTRICT AND HARD-AND
FAST RULES SHOULD NOT BE FORMULATED.  THE EXISTENCE OF A SUBSTANTIAL
PERCENTAGE OF SCHOOLS POPULATED BY STUDENTS FROM ONE RACE ONLY OR
PREDOMINANTLY SO POPULATED, SHOULD TRIGGER THE INQUIRY. 

/11/  SEE DISCUSSION IN PART III, INFRA, OF THE REMEDIAL ACTION
WHICH IS APPROPRIATE TO ACCOMPLISH DESEGREGATION WHERE A COURT FINDS
THAT A SCHOOL BOARD HAS FAILED TO OPERATE AN INTEGRATED SCHOOL SYSTEM
WITHIN ITS DISTRICT.  PLAINTIFFS, MUST, HOWEVER, ESTABLISH THE FAILURE
OF A SCHOOL BOARD TO OPERATE AN INTEGRATED SCHOOL SYSTEM BEFORE A COURT
MAY ORDER DESEGREGATIVE STEPS BY WAY OF REMEDY.  THESE ARE TWO DISTINCT
STEPS WHICH RECOGNIZE THE NECESSITY OF PROVING THE CONSTITUTIONAL
VIOLATION BEFORE DESEGREGATIVE REMEDIAL ACTION CAN BE ORDERED. 

/12/  INDEED, IF ONE GOES BACK FAR ENOUGH, IT IS PROBABLE THAT ALL
RACIAL SEGREGATION, WHEREVER OCCURING AND WHETHER OR NOT CONFINED TO
THE SCHOOLS, HAS AT SOME TIME BEEN SUPPORTED OR MAINTAINED BY
GOVERNMENT ACTION.  IN BECKETT V. SCHOOL BOARD, 308 F.SUPP.  1274, 1311
- 1315 (ED VA. 1969), JUDGE HOFFMAN COMPILED A SUMMARY OF PAST PUBLIC
SEGREGATIVE ACTION WHICH INCLUDED EXAMPLES FROM A GREAT MAJORITY OF
STATES.  HE CONCLUDED THAT "(ONLY AS TO THE STATES OF MAINE, NEW
HAMPSHIRE, VERMONT, WASHINGTON, NEVADA, AND HAWAII DOES IT APPEAR FROM
THIS NONEXHAUSTIVE RESEARCH THAT NO DISCRIMINATORY LAWS APPEARED ON THE
BOOKS AT ONE TIME OR ANOTHER."  ID., AT 1315. 

/13/  THE AUTHOR CONTINUES:  "TRUE, THE EARLIER THE POLICY OF
SEGREGATION WAS ABANDONED THE LESS DANGER THERE IS THAT IT CONTINUES TO
OPERATE COVERTLY, IS SIGNIFICANTLY RESPONSIBLE FOR PRESENT DAY PATTERNS
OF RESIDENTIAL SEGREGATION, OR HAS CONTRIBUTED MATERIALLY TO PRESENT
COMMUNITY ATTITUDES TOWARD NEGRO SCHOOLS.  BUT THERE IS NO REASON TO
SUPPOSE THAT 1954 IS A UNIVERSALLY APPROPRIATE DIVIDING LINE BETWEEN DE
JURE SEGREGATION THAT MAY SAFELY BE ASSUMED TO HAVE SPENT ITSELF AND
THAT WHICH MAY NOT.  FOR MANY REMEDIAL PURPOSES, ADOPTION OF AN
ARBITRARY BUT EASILY ADMINISTRABLE CUTOFF POINT MIGHT NOT BE
OBJECTIONABLE.  BUT IN A SITUATION SUCH AS SCHOOL DESEGREGATION, WHERE
BOTH THE RIGHTS ASSERTED AND THE REMEDIAL BURDENS IMPOSED ARE OF SUCH
MAGNITUDE, AND WHERE THE RESULTING SECTIONAL DISCRIMINATION IS
PASSIONATELY RESENTED, IT IS SURELY QUESTIONABLE WHETHER SUCH
ARBITRARINESS IS EITHER POLITICALLY OR MORALLY ACCEPTABLE." 

/14/  SEE BICKEL, SUPRA, N. 7, AT 119:  "IF A NEGRO CHILD PRECEIVES
HIS SEPARATION AS DISCRIMINATORY AND INVIDIOUS, HE IS NOT, IN A SOCIETY
A HUNDRED YEARS REMOVED FROM SLAVERY, GOING TO MAKE FINE DISTINCTIONS
ABOUT THE SOURCE OF A PARTICULAR SEPARATION." 

/15/  THE COURT TODAY DOES NOT REQUIRE, HOWEVER, A SEGREGATIVE
INTENT WITH RESPECT TO THE ENTIRE SYSTEM, AND INDEED HOLDS THAT IF SUCH
AN INTENT IS FOUND WITH RESPECT TO SOME SCHOOLS IN A SYSTEM, THE BURDEN
-NORMALLY ON THE PLAINTIFFS--SHIFTS TO THE DEFENDANT SCHOOL AUTHORITIES
TO PROVE A NEGATIVE:  NAMELY, THAT THEIR PURPOSES WERE BENIGN, ANTE, AT
207 - 209. 

THE COURT HAS COME A LONG WAY SINCE BROWN I. STARTING FROM THE
UNASSAILABLE DE JURE GROUND OF THE DISCRIMINATORY CONSTITUTIONAL AND
STATUTORY PROVISIONS OF SOME STATES, THE NEW FROMULATION--STILL
PROFESSING FIDELITY TO THE DE JURE DOCTRINE--IS THAT DESEGREGATION WILL
BE ORDERED DESPITE THE ABSENCE OF ANY SEGREGATIVE LAWS IF:  (1)
SEGREGATED SCHOOLS IN FACT EXIST; (II) A COURT FINDS THAT THEY RESULT
FROM SOME ACTION TAKEN WITH SEGREGATIVE INTENT BY THE SCHOOL BOARD;
(III) SUCH ACTION RELATES TO ANY "MEANINGFULL SEGMENT" OF THE SCHOOL
SYSTEM; AND (IV) THE SCHOOL BOARD CANNOT PROVE THAT ITS INTENTIONS WITH
RESPECT TO THE REMAINDER OF THE SYSTEM WERE NONSEGREGATIVE. 

/16/  AS ONE COMMENTATOR HAS EXPRESSED IT: 

"IF THE COURTS ARE INDEED PREPARED TO INQUIRE INTO MOTIVE, THORNY
QUESTIONS WILL ARISE EVEN IF ONE ASSUMES THAT RACIAL MOTIVATION IS
CAPABLE OF BEING PROVEN AT TRIAL.  WHAT OF THE CASE IN WHICH ONE OR
MORE MEMBERS OF A SCHOOL BOARD, BUT LESS THAN A MAJORITY, ARE FOUND TO
HAVE ACTED ON RACIAL GROUNDS?  WHAT IF IT APPEARS THAT THE SCHOOL
BOARD'S ACTION WAS PROMPTED BY A MIXTURE OF MOTIVES, INCLUDING
CONSTITUTIONALLY INNOCENT ONES THAT ALONE WOULD HAVE PROMPTED THE BOARD
TO ACT?  WHAT IF THE MEMBERS OF THE SCHOOL BOARD WERE NOT THEMSELVES
RACIALLY INSPIRED BUT WISHED TO PLEASE THEIR CONSTITUENTS, MANY OF WHOM
THEY KNEW TO BE SO?  IF SUCH CASES ARE CLASSIFIED AS UNCONSTITUTIONAL
DE JURE SEGREGATION, THERE IS LITTLE POINT IN PRESERVING THE DE JURE-DE
FACTO DISTINCTION AT ALL.  AND IT MAY WELL BE THAT THE DIFFERENCE
BETWEEN ANY OF THESE SITUATIONS AND ONE IN WHICH RACIAL MOTIVATION IS
ALTOGETHER LACKING IS TOO INSIGNIFICANT, FROM THE STANDPOINT OF BOTH
THE MORAL CULPABILITY OF THE STATE OFFICIALS AND THE IMPACT UPON THE
CHILDREN INVOLVED, TO SUPPORT A DIFFERENCE IN CONSTITUTIONAL
TREATMENT."  GOODMAN, DE FACTO SCHOOL SEGREGATION:  A CONSTITUTIONAL
AND EMPIRICAL ANALYSIS, 60 CALIF. L. REV. 275, 284 - 285 (1972). 

/17/  SEE, E. G., THOMPSON V. SCHOOL BOARD OF NEWPORT NEWS, 465 F.2D
83, 87 (1972), WHERE THE FOURTH CIRCUIT EN BANC UPHELD A DISTRICT COURT
ASSIGNMENT PLAN WHERE "TRAVEL TIME, VARYING FROM A MINIMUM OF FORTY
MINUTES AND A MAXIMUM OF ONE HOUR, EACH WAY, WOULD BE REQUIRED FOR
BUSING BLACK STUDENTS OUT OF THE OLD CITY AND WHITE STUDENTS INTO THE
OLD CITY IN ORDER TO ACHIEVE A RACIAL BALANCING OF THE DISTRICT."  THIS
TRANSPORTATION WAS DECREED FOR CHILDREN FROM THE THIRD GRADE UP,
INVOLVING CHILDREN AS YOUNG AS EIGHT YEARS OF AGE. 

IN NORTHCROSS V. BOARD OF EDUCATION OF MEMPHIS CITY SCHOOLS, 466
F.2D 890, 895 (1972), THE SIXTH CIRCUIT AFFIRMED A DISTRICT COURT
ASSIGNMENT PLAN WHICH DAILY TRANSPORTED 14,000 CHILDREN WITH "THE
MAXIMUM TIME TO BE SPENT ON THE BUSES BY ANY CHILD (BEING) 34 MINUTES .
. . ," PRESUMABLY EACH WAY.  BUT AS JUDGE WEICK NOTED IN DISSENT THE
SIXTH CIRCUIT INSTRUCTED THE DISTRICT JUDGE TO IMPLEMENT YET FURTHER
DESEGREGATION ORDERS.  PLANS PRESENTLY UNDER CONSIDERATION BY THAT
COURT CALL FOR THE BUSING OF 39,085 AND 61,530 CHILDREN RESPECTIVELY,
FOR UNDETERMINED LENGTHS OF TIME.  ID., AT 895 - 896. 

PETITIONERS BEFORE THIS COURT IN POTTS V. FLAX, NO. 72 - 288, CERT.
DENIED, 409 U.S. 1007 (1972), CONTENDED THAT THE IMPLEMENTATION OF THE
FIFTH CIRCUIT'S DIRECTIVE IN FLAX V. POTTS, 464 F.2D 865 (1972), WOULD
REQUIRE BUS RIDES OF UP TO TWO HOURS AND 20 MINUTES EACH DAY AND A
ROUND TRIP OF UP TO 70 MILES.  PET. FOR CERT. 14.  WHILE RESPONDENTS
CONTENDED THESE FIGURES REPRESENT AN "ASTOUNDING INFLATION," BRIEF IN
OPPOSITION 7, TRANSPORTATION OF A SIGNIFICANT MAGNITUDE SEEMS
INEVITABLE. 

/18/  SEE UNITED STATES V. TEXAS EDUCATION AGENCY, 467 F.2D 848, 883
(CA5 1972) (BELL, J., CONCURRING IN AN OPINION IN WHICH SEVEN OTHER
JUDGES JOINED): 

"IN OUR VIEW THE REMEDY WHICH THE DISTRICT COURT IS REQUIRED TO
FORMULATE SHOULD BE FORMULATED WITHIN THE ENTIRE CONTEXT OF THE OPINION
IN SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION . . . ." 
(EMPHASIS ADDED.) 

/19/  THE RELEVANT INQUIRY IS "WHETHER THE COSTS OF ACHIEVING
DESEGREGATION IN ANY GIVEN SITUATION OUTWEIGH THE LEGAL, MORAL AND
EDUCATIONAL CONSIDERATIONS FAVORING IT. . . . IT IS CLEAR . . . THAT
THE CONSTITUTION SHOULD NOT BE HELD TO REQUIRE ANY TRANSPORTATION PLAN
THAT KEEPS CHILDREN ON A BUS FOR A SUBSTANTIAL PART OF THE DAY,
CONSUMES SIGNIFICANT PORTIONS OF FUNDS OTHERWISE SPENDABLE DIRECTLY ON
EDUCATION, OR INVOLVES A GENUINE ELEMENT OF DANGER TO THE SAFETY OF THE
CHILD."  COMMENT, SCHOOL DESEGREGATION AFTER SWANN:  A THEORY OF
GOVERNMENT RESPONSIBILITY, 39 U. CHI.  L. REF. 421, 422, 443 (1972). 

/20/  A USEFUL STUDY OF THE HISTORICAL USES AND ABUSES OF THE
NEIGHBORHOOD SCHOOL CONCEPT IS M. WEINBERG, RACE & PLACE (1967). 

/21/  IN FACT, DUE TO RACIALLY SEPARATE RESIDENTIAL PATTERNS THAT
CHARACTERIZE OUR MAJOR URBAN AREAS IS QUITE UNREALISTIC TO THINK OF
ACHIEVING IN MANY CITIES SUBSTANTIAL INTEGRATION THROUGHOUT THE SCHOOL
DISTRICT WITHOUT A DEGREE OF STUDENT TRANSPORTATION WHICH WOULD HAVE
THE GRAVEST ECONOMIC AND EDUCATIONAL CONSEQUENCES. 

AS PROFESSOR BICKEL NOTES:  "IN MOST OF THE LARGER URBAN AREAS,
DEMOGRAPHIC CONDITIONS ARE SUCH THAT NO POLICY THAT A COURT CAN ORDER,
AND A SCHOOL BOARD, A CITY, OR EVEN A STATE HAS THE CAPABILITY TO PUT
INTO EFFECT, WILL IN FACT RESULT IN THE FORESEEABLE FUTURE IN RACIALLY
BALANCED PUBLIC SCHOOLS.  ONLY A REORDERING OF THE ENVIRONMENT
INVOLVING ECONOMIC AND SOCIAL POLICY ON THE BROADEST CONCEIVABLE FRONT
MIGHT HAVE AN APPRECIABLE IMPACT."  BICKEL, SUPRA, N. 7, AT 132. 

/22/  ESTIMATES VARY.  SWANN, 402 U.S., AT 29, NOTED THAT (EIGHTEEN
MILLION OF THE NATION'S PUBLIC SCHOOL CHILDREN, APPROXIMATELY 39%, WERE
TRANSPORTED TO THEIR SCHOOLS BY BUS IN 1969 - 1970 IN ALL PARTS OF THE
COUNTRY."  SENATOR RIBICOFF, A THOUGHTFUL STUDENT OF THIS PROBLEM,
STATED THAT "(TWO-THIRDS OF ALL AMERICAN CHILDREN TODAY RIDE BUSES TO
SCHOOLS FOR REASONS UNRELATED TO INTEGRATION."  118 CONG. REC. 5456
(1972). 

/23/  HISTORICALLY, DISTANT TRANSPORTATION WAS WRONGLY USED TO
PROMOTE SEGREGATION.  "NEGRO CHILDREN WERE GENERALLY CONSIDERED CAPABLE
OF TRAVELING LONGER DISTANCES TO SCHOOL AND WITHOUT THE AID OF ANY
VEHICLE.  WHAT WAS TOO FAR FOR A WHITE CHILD BECAME REASONABLY NEAR FOR
A NEGRO CHILD," WEINBERG, SUPRA, N. 20, AT 87. 

THIS DEPLORABLE HISTORY HAS LED SOME TO ARGUE THAT INTEGRATIVE BUS
RIDES ARE JUSTIFIED AS ATONEMENT FOR PAST SEGREGATIVE TRIPS AND THAT
NEIGHBORHOOD EDUCATION IS NOW BUT A CODE WORD FOR RACIAL SEGREGATION. 
BUT MISUSE OF TRANSPORTATION IN THE PAST DOES NOT IMPLY NEIGHBORHOOD
SCHOOLING HAS NO VALID NONSEGREGATIVE USES FOR THE PRESENT.  NOR WOULD
WRONGFUL TRANSPORTATION IN THE PAST JUSTIFY DETRIMENTAL TRANSPORTATION
FOR THE CHILDREN OF TODAY. 

/24/  SOME COMMUNITIES HAD TRANSPORTATION PLANS IN EFFECT AT THE
TIME OF COURT DESEGRATION ORDERS.  SEE SWANN, SUPRA, AT 29 N. 11; DAVIS
V. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, 402 U.S. 33, 34 - 35
(1971).  COURTS HAVE USED THE PRESENCE OR ABSENCE OF EXISTING
TRANSPORTATION IN A DISTRICT AS ONE FACTOR IN FRAMING AND IMPLEMENTING
DESEGREGATION DECREES.  UNITED STATES V. WATSON CHAPEL SCHOOL DISTRICT,
446 F.2D 933, 937 (CA8 1971); NORTHCROSS V. BOARD OF EDUCATION OF
MEMPHIS CITY SCHOOLS, 444 F.2D 1179, 1182 - 1183 (CA6 1971); DAVIS V.
BOARD OF EDUCATION OF NORTH LITTLE ROCK, 328 F.SUPP.  1197, 1203 (ED
ARK. 1971).  WHERE A SCHOOL BOARD IS VOLUNTARILY ENGAGED IN
TRANSPORTING STUDENTS, A DISTRICT IS, OF COURSE, OBLIGATED TO INSURE
THAT SUCH TRANSPORTATION IS NOT UNDERTAKEN WITH SEGREGATIVE EFFECT. 
WHERE, ALSO, VOLUNTARY TRANSPORTATION PROGRAMS ARE ALREADY IN PROGRESS,
THERE MAY BE GREATER JUSTIFICATION FOR COURT-ORDERED TRANSPORTATION OF
STUDENTS FOR A COMPARABLE TIME AND DISTANCE TO ACHIEVE GREATER
INTEGRATION. 

/25/  THE TERM "NEIGHBORHOOD SCHOOL" SHOULD NOT BE SUPPOSED TO
DENOTE SOLELY A WALK-IN SCHOOL OR ONE WHICH SERVES CHILDREN ONLY IN THE
SURROUNDING BLOCKS.  THE COURT HAS NOTED, IN A DIFFERENT CONTEXT, THAT
"(THE WORD 'NEIGHBORHOOD' IS QUITE AS SUSCEPTIBLE OF VARIATION AS THE
WORD 'LOCALITY.'  BOTH TERMS ARE ELASTIC AND, DEPENDENT UPON
CIRCUMSTANCES, MAY BE EQUALLY SATISFIED BY AREAS MEASURED BY RODS OR BY
MILES."  CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, 395
(1926).  IN THE SCHOOL CONTEXT, "NEIGHBORHOOD" REFERS TO RELATIVE
PROXIMITY, TO A PREFERENCE FOR A SCHOOL NEARER TO, RATHER THAN MORE
DISTANT FROM, HOME.     /26/  I DO NOT IMPLY THAT THE NEIGHBORHOOD
CONCEPT MUST BE EMBODIED IN EVERY SCHOOL SYSTEM.  BUT WHERE A SCHOOL
BOARD HAS CHOSEN IT, FEDERAL JUDGES SHOULD ACCORD IT RESPECT IN FRAMING
REMEDIAL DECREES. 

/27/  SLUMS AND SUBURBS 29 (1961). 

/28/  SEE N. 21, SUPRA. 

/29/  IN MEMPHIS, FOR EXAMPLE, WHICH HAS NO HISTORY OF BUSING
STUDENTS, THE MINIMUM TRANSPORTATION PLAN ORDERED BY THE COURTS WILL
REQUIRE, IN THE SCHOOL BOARD'S ESTIMATE, AN INITIAL CAPITAL EXPENDITURE
OF $1,664,192 FOR BUSES PLUS AN ANNUAL OPERATING COST OF $629,192.  THE
BOARD ESTIMATES THAT A MORE EXTENSIVE TRANSPORTATION PROGRAM TO BE
CONSIDERED BY THE DISTRICT COURT WILL REQUIRE INITIAL CAPITAL
INVESTMENTS OF $3,924,000 AND ANNUAL OPERATING COSTS OF $1,783,490. 
THE MOST DRASTIC TRANSPORTATION PLAN BEFORE THE DISTRICT COURT REQUIRES
ESTIMATED ANNUAL OPERATING COSTS OF FROM $2,354,220, $2,431,710, OR
$3,463,100 DEPENDING ON THE BOARD'S TRANSPORTATION ARRANGEMENTS. 
NORTHCROSS V. BOARD OF EDUCATION OF MEMPHIS CITY SCHOOLS, 466 F.2D, AT
898 (WEICK, J., DISSENTING). 

/30/  SEE N. 9, SUPRA. 

/31/  THERE MAY WELL BE ADVANTAGES IN COMMENCING THE INTEGRATIVE
EXPERIENCES AT AN EARLY AGE, AS YOUNG CHILDREN MAY BE LESS LIKELY THAN
OLDER CHILDREN AND ADULTS TO DEVELOP AN INHIBITING RACIAL
CONSCIOUSNESS.  THESE ADVANTAGES SHOULD BE CONSIDERED AS SCHOOL BOARDS
MAKE THE VARIOUS DECISIONS WITH THE VIEW TO ACHIEVING AND PRESERVING AN
INTEGRATED SCHOOL SYSTEM.  SUPRA, AT 226 - 227.  BUT IN THE BALANCING
OF ALL RELEVANT INTERESTS, THE ADVANTAGES OF AN EARLY INTEGRATIVE
EXPERIENCE MUST, AND IN ALL FAIRNESS SHOULD, BE WEIGHED AGAINST OTHER
RELEVANT ADVANTAGES AND DISADVANTAGES AND IN LIGHT OF THE DEMOGRAPHIC
CHARACTERISTICS OF THE PARTICULAR COMMUNITY. 

/32/  WHILE GREATER TRANSPORTATION OF SECONDARY SCHOOL STUDENTS
MIGHT BE PERMITTED, EVEN AT THIS LEVEL THE DESIRE OF A COMMUNITY FOR
RACIALLY NEUTRAL NEIGHBORHOOD SCHOOLS SHOULD COMMAND JUDICIAL RESPECT. 
IT WOULD ULTIMATELY BE WISEST, WHERE THERE IS NO ABSENCE OF GOOD FAITH,
TO PERMIT AFFECTED COMMUNITIES TO DECIDE THIS DELICATE ISSUE OF STUDENT
TRANSPORTATION ON THEIR OWN. 

[[DOP 

MR. JUSTICE REHNQUIST, DISSENTING. 

[[HC254'(ORIGINAL DOCUMENT PAGE 254)'

        I 

THE COURT NOTES AT THE OUTSET OF ITS OPINION THE DIFFERENCES BETWEEN
THE CLAIMS MADE BY THE PLAINTIFFS IN THIS CASE AND THE CLASSICAL "DE
JURE" TYPE OF CLAIMS MADE BY PLAINTIFFS IN CASES SUCH AS BROWN V. BOARD
OF EDUCATION, 347 U.S. 483 (1954), AND ITS PROGENY.  I THINK THE
SIMILARITIES AND DIFFERENCES, NOT ONLY IN THE CLAIMS, BUT IN THE NATURE
OF THE CONSTITUTIONAL VIOLATION, DESERVE SOMEWHAT MORE ATTENTION THAN
THE COURT GIVES THEM. 

IN BROWN, THE COURT HELD UNCONSTITUTIONAL STATUTES THEN PREVALENT IN
SOUTHERN AND BORDER STATES MANDATING THAT NEGRO CHILDREN AND WHITE
CHILDREN ATTEND SEPARATE SCHOOLS.  UNDER SUCH A STATUTE, OF COURSE,
EVERY CHILD IN THE SCHOOL SYSTEM IS SEGREGATED BY RACE, AND THERE IS NO
RACIAL MIXING WHATEVER IN THE POPULATION OF ANY PARTICULAR SCHOOL. 

IT IS CONCEDED THAT THE STATE OF COLORADO AND THE CITY OF DENVER
HAVE NEVER HAD A STATUTE OR ORDINANCE OF THAT DESCRIPTION.  THE CLAIM
MADE BY THESE PLAINTIFFS, AS DESCRIBED IN THE COURT'S OPINION, IS THAT
THE SCHOOL BOARD BY "USE OF VARIOUS TECHNIQUES SUCH AS THE MANIPULATION
OF STUDENT ATTENDANCE ZONES, SCHOOLSITE SELECTION AND A NEIGHBORHOOD
SCHOOL POLICY" TOOK RACE INTO ACCOUNT IN MAKING SCHOOL ASSIGNMENTS IN
SUCH A WAY AS TO LESSEN THAT MIXING OF RACES WHICH WOULD HAVE RESULTED
FROM A RACIALLY NEUTRAL CLAIMS ARE PROVED, THOSE MINORITY STUDENTS WHO
AS A RESULT OF SUCH MANIPULATIVE TECHNIQUES ARE FORCED TO ATTEND
SCHOOLS OTHER THAN THOSE THAT THEY WOULD BE ATTENDED HAD ATTENDENCE
ZONES BEEN NEUTRALLY DRAWN ARE UNDOUBTEDLY DEPRIVED OF THEIR
CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION OF THE LAWS JUST AS SURELY AS
WERE THE PLAINTIFFS IN BROWN V. BOARD OF EDUCATION BY THE STATUTORILY
REQUIRED SEGREGATION IN THAT CASE.  BUT THE FACT THAT INVIDIOUS RACIAL
DISCRIMINATION IS PROHIBITED BY THE CONSTITUTION IN THE NORTH AS WELL
AS THE SOUTH MUST NOT BE ALLOWED TO OBSCURE THE EQUALLY IMPORTANT FACT
THAT THE CONSEQUENCES OF MANIPULATIVE DRAWING OF ATTENDANCE ZONES IN A
SCHOOL DISTRICT THE SIZE OF DENVER DOES NOT NECESSARILY RESULT IN
DENIAL OF EQUAL PROTECTION TO ALL MINORITY STUDENTS WITHIN THAT
DISTRICT. 

[[HC255'(ORIGINAL DOCUMENT PAGE 255)'  THERE ARE SIGNIFICANT
DIFFERENCES BETWEEN THE PROOF WHICH WOULD SUPPORT A CLAIM SUCH AS THAT
ALLEGED BY PLAINTIFFS IN THIS CASE, AND THE TOTAL SEGREGATION REQUIRED
BY STATUTE WHICH EXISTED IN BROWN. 

THE COURT'S OPINION OBSCURES THESE FACTUAL DIFFERENCES BETWEEN THE
SITUATIONS SHOWN BY THE RECORD TO HAVE EXISTED IN DENVER AND THE
SITUATIONS DEALT WITH IN EARLIER SCHOOL DESEGREGATION OPINIONS OF THE
COURT.  THE COURT STATES, ANTE, AT 200, THAT "(WE HAVE NEVER SUGGESTED
THAT PLAINTIFFS IN SCHOOL DESEGREGATION CASES MUST BEAR THE BURDEN OF
PROVING THE ELEMENTS OF DE JURE SEGREGATION AS TO EACH AND EVERY SCHOOL
OR EACH AND EVERY STUDENT WITHIN THE SCHOOL SYSTEM.  RATHER, WE HAVE
HELD THAT WHERE PLAINTIFFS PROVE THAT A CURRENT CONDITION OF SEGREGATED
SCHOOLING EXISTS WITHIN A SCHOOL DISTRICT WHERE A DUAL SYSTEM WAS
COMPELLED OR AUTHORIZED BY STATUTE AT THE TIME OF OUR DECISION IN BROWN
V. BOARD OF EDUCATION, 347 U.S. 483 (1954) (BROWN I), THE STATE
AUTOMATICALLY ASSUMES AN AFFIRMATIVE DUTY 'TO EFFECTUATE A TRANSITION
TO A RACIALLY NONDISCRIMINATORY SCHOOL SYSTEM,' BROWN V. BOARD OF
EDUCATION, 349 U.S. 294, 301 (1955) (BROWN II) . . . ." 

THAT STATEMENT IS, OF COURSE, CORRECT IN THE BROWN CONTEXT, BUT IN
THE BROWN CASES AND LATER ONES THAT HAVE COME BEFORE THE COURT THE
SITUATION WHICH HAD INVARIABLY OBTAINED AT ONE TIME WAS A "DUAL"
SCHOOL SYSTEM MANDATED BY LAW, BY A LAW WHICH PROHIBITED NEGROES AND
WHITES FROM ATTENDING THE SAME SCHOOLS.  SINCE UNDER BROWN SUCH A LAW
DEPRIVED EACH NEGRO CHILD OF THE EQUAL PROTECTION OF THE LAWS, THERE
WAS NO NEED TO PROVE "THE ELEMENTS OF DE JURE SEGREGATION AS TO EACH
AND EVERY SCHOOL," SINCE THE LAW ITSELF HAD REQUIRED JUST THAT SORT OF
SEGREGATION. 

[[HC256'(ORIGINAL DOCUMENT PAGE 256)' 

BUT IN A SCHOOL DISTRICT THE SIZE OF DENVER'S IT IS QUITE
CONCEIVABLE THAT THE SCHOOL BOARD MIGHT HAVE ENGAGED IN THE RACIAL
GERRYMANDERING OF THE ATTENDANCE BOUNDARY BETWEEN TWO PARTICULAR
SCHOOLS IN ORDER TO KEEP ONE LARGELY NEGRO AND HISPANO, AND THE OTHER
LARGELY ANGLO, AS THE DISTRICT COURT FOUND TO HAVE BEEN THE FACT IN
THIS CASE.  SUCH ACTION WOULD HAVE DEPRIVED AFFECTED MINORITY STUDENTS
WHO WERE THE VICTIMS OF SUCH GERRYMANDERING OF THEIR CONSTITUTIONAL
RIGHT TO EQUAL PROTECTION OF THE LAWS.  BUT IF THE SCHOOL BOARD HAD
BEEN EVENHANDED IN ITS DRAWING OF THE ATTENDANCE LINES FOR OTHER
SCHOOLS IN THE DISTRICT, MINORITY STUDENTS REQUIRED TO ATTEND OTHER
SCHOOLS WITHIN THE DISTRICT WOULD HAVE SUFFERED NO SUCH DEPRIVATION. 
IT CERTAINLY WOULD NOT REFLECT NORMAL ENGLISH USAGE TO DESCRIBE THE
ENTIRE DISTRICT AS "SEGREGATED"  ON SUCH A STATE OF FACTS, AND IT WOULD
BE A QUITE UNPRECENDENTED APPLICATION OF PRINCIPLES OF EQUITABLE RELIEF
TO DETERMINE THAT IF THE GERRYMANDERING OF ONE ATTENDANCE ZONE WERE
PROVED, PARTICULAR RACIAL MIXTURES COULD BE REQUIRED BY A FEDERAL
DISTRICT COURT FOR EVERY SCHOOL IN THE DISTRICT. 

IT IS QUITE POSSIBLE, OF COURSE, THAT A SCHOOL DISTRICT PURPORTING
TO ADOPT RACIALLY NEUTRAL BOUNDARY ZONES MIGHT, WITH RESPECT TO EVERY
SUCH ZONE, INVIDIOUSLY DISCRIMINATE AGAINST MINORITIES, SO AS TO
PRODUCE SUBSTANTIALLY THE SAME RESULT AS WAS PRODUCED BY THE
STATUTORILY DECREED SEGREGATION INVOLVED IN BROWN.  IF THAT WERE THE
CASE, THE CONSEQUENCES WOULD NECESSARILY HAVE TO BE THE SAME AS WERE
THE CONSEQUENCES IN BROWN.  BUT, IN THE ABSENCE OF A STATUTE REQUIRING
SEGREGATION, THERE MUST NECESSARILY BE THE SORT OF FACTUAL INQUIRY
WHICH WAS UNNECESSARY IN THOSE JURISDICTIONS WHERE RACIAL MIXING IN THE
SCHOOLS WAS FORBIDDEN BY LAW. 

UNDERLYING THE COURT'S ENTIRE OPINION AS ITS APPARENT THESIS THAT A
DISTRICT JUDGE IS AT LEAST PERMITTED TO FIND THAT IF A SINGLE
ATTENDANCE ZONE BETWEEN TWO INDIVIDUAL SCHOOLS IN THE LARGE
METROPOLITAN DISTRICT IS FOUND BY HIM TO HAVE BEEN "GERRYMANDERED,"
THE SCHOOL DISTRICT IS GUILTY OF OPERATING A "DUAL" SCHOOL SYSTEM, AND
IS APPARENTLY A CANDIDATE FOR WHAT IS IN PRACTICE A FEDERAL
RECEIVERSHIP. 

[[HC257'(ORIGINAL DOCUMENT PAGE 257)'  NOT ONLY THE LANGUAGE OF THE
COURT IN THE OPINION, BUT ITS RELIANCE ON THE CASE OF GREEN V. COUNTY
SCHOOL BOARD, 391 U.S. 430, 437 - 438 (1968), INDICATES THAT SUCH WOULD
BE THE CASE.  IT WOULD THEREFORE PRESUMABLY BE OPEN TO THE DISTRICT
COURT TO REQUIRE, INTER ALIA, THAT PUPILS BE TRANSPORTED GREAT
DISTANCES THROUGHOUT THE DISTRICT TO AND FROM SCHOOLS WHOSE ATTENDANCE
ZONES HAVE NOT BEEN GERRYMANDERED.  YET, UNLESS THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT NOW BE HELD TO EMBODY A PRINCIPLE OF
"TAINT,"  FOUND IN SOME PRIMITIVE LEGAL SYSTEMS BUT DISCARDED CENTURIES
AGO IN OURS, SUCH A RESULT CAN ONLY BE DESCRIBED AS THE PRODUCT OF
JUDICIAL FIAT. 

GREEN, SUPRA, REPRESENTED A MARKED EXTENSION OF THE PRINCIPLES OF
BROWN V. BOARD OF EDUCATION, SUPRA.  THE COURT IN GREEN SAID: 

"IT IS OF COURSE TRUE THAT FOR THE TIME IMMEDIATELY AFTER BROWN II
(349 U.S. 294) THE CONCERN WAS WITH MAKING AN INITIAL BREAK IN A LONG
ESTABLISHED PATTERN OF EXCLUDING NEGRO CHILDREN FROM SCHOOLS ATTENDED
BY WHITE CHILDREN.  . . . UNDER BROWN II THAT IMMEDIATE GOAL WAS ONLY
THE FIRST STEP, HOWEVER.  THE TRANSITION TO A UNITARY, NONRACIAL SYSTEM
OF PUBLIC EDUCATION WAS AND IS THE ULTIMATE END TO BE BROUGHT ABOUT . .
. ."  391 U.S., AT 435 - 436.  BROWN II WAS A CALL FOR THE DISMANTLING
OF WELL-ENTRENCHED DUAL SYSTEMS TEMPERED BY AN AWARENESS THAT COMPLEX
AND MULTIFACETED PROBLEMS WOULD ARISE WHICH WOULD REQUIRE TIME AND
FLEXIBILITY FOR A SUCCESSFUL RESOLUTION. 

[[HC258'(ORIGINAL DOCUMENT PAGE 258)'

  SCHOOL BOARDS SUCH AS THE RESPONDENT THEN OPERATING STATE
COMPELLED DUAL SYSTEMS WERE

NEVERTHELESS CLEARLY CHARGED WITH THE AFFIRMATIVE DUTY TO TAKE
WHATEVER STEPS MIGHT BE

  NECESSARY TO CONVERT TO A UNITARY SYSTEM IN WHICH RACIAL
DISCRIMINATION WOULD BE ELIMINATED

  ROOT AND BRANCH."  ID., AT 437 - 438. 

THE DRASTIC EXTENSION OF BROWN WHICH GREEN REPRESENTED WAS BARELY,
IF AT ALL, EXPLICATED IN THE LATTER OPINION.  TO REQUIRE THAT A
GENUINELY "DUAL" SYSTEM BE DISESTABLISHED, IN THE SENSE THAT THE
ASSIGNMENT OF A CHILD TO A PARTICULAR SCHOOL IS NOT MADE TO DEPEND ON
HIS RACE, IS ONE THING.  TO REQUIRE THAT SCHOOL BOARDS AFFIRMATIVELY
UNDERTAKE TO ACHIEVE RACIAL MIXING IN SCHOOLS WHERE SUCH MIXING IS NOT
ACHIEVED IN SUFFICIENT DEGREE BY NEUTRALLY DRAWN BOUNDARY LINES IS
QUITE OBVIOUSLY SOMETHING ELSE. 

THE COURT'S OWN LANGUAGE IN GREEN MAKES IT UNMISTAKABLY CLEAR THAT
THIS SIGNIFICANT EXTENSION OF BROWN'S PROHIBITION AGAINST
DISCRIMINATION, AND THE CONVERSION OF THAT PROHIBITION INTO AN
AFFIRMATIVE DUTY TO INTEGRATE, WAS MADE IN THE CONTEXT OF A SCHOOL
SYSTEM WHICH HAD FOR A NUMBER OF YEARS RIGIDLY EXCLUDED NEGROES FROM
ATTENDING THE SAME SCHOOLS AS WERE ATTENDED BY WHITES.  WHATEVER MAY BE
THE SOUNDNESS OF THAT DECISION IN THE CONTEXT OF A GENUINELY "DUAL"
SCHOOL SYSTEM, WHERE SEGREGATION OF THE RACES HAD ONCE BEEN MANDATED BY
LAW, I CAN SEE NO CONSTITUTIONAL JUSTIFICATION FOR IT IN A SITUATION
SUCH AS THAT WHICH THE RECORD SHOWS TO HAVE OBTAINED IN DENVER. 

        II 

THE COURT'S OPINION GIVES LIP SERVICE TO THE NOTION THAT THE INQUIRY
AS TO WHETHER OR NOT THE DENVER SCHOOL DISTRICT WAS "SEGREGATED" IS A
FACTUAL ONE, THOUGH IT REFERS IN VARIOUS CRITICAL LANGUAGE TO THE
DISTRICT COURT'S REFUSAL TO FIND THAT MINORITY CONCENTRATION IN THE
CORE AREA SCHOOLS WAS THE RESULT OF DISCRIMINATORY ACTION ON THE PART
OF THE SCHOOL BOARD. 

[[HC259'(ORIGINAL DOCUMENT PAGE 259)'  THE DISTRICT COURT IS SAID TO
HAVE "FRACTIONATED" THE DISTRICT, ANTE, AT 193, AND TO HAVE "HELD THAT
ITS FINDING OF INTENTIONAL SEGREGATION IN PARK HILL WAS NOT IN ANY
SENSE MATERIAL TO THE QUESTION OF SEGREGATIVE INTENT IN OTHER AREAS OF
THE CITY," IBID.  IT IS DIFFICULT TO KNOW WHAT THE COURT MEANS BY THE
FIRST OF THESE REFERENCES, AND EVEN MORE DIFFICULT TO JUSTIFY THE
SECOND IN THE LIGHT OF THE DISTRICT COURT'S OPINION. 

IF BY "FRACTIONATING" THE DISTRICT, THE COURT MEANS THAT THE
DISTRICT COURT TREATED TOGETHER EVENTS THAT OCCURRED DURING THE SAME
TIME PERIOD, AND THAT IT TREATED THOSE EVENTS SEPARATELY FROM EVENTS
THAT OCCURRED DURING ANOTHER TIME SPAN, THIS IS UNDOUBTEDLY CORRECT. 
THIS IS THE APPROACH FOLLOWED BY MOST EXPERIENCED AND CAREFUL FINDERS
OF FACT. 

IN COMMENCING THAT PART OF ITS COMPREHENSIVE OPINION WHICH DEALT
WITH THE "CORE AREA" SCHOOLS, THE DISTRICT COURT OBSERVED: 

     "THE EVIDENTIARY AS WELL AS THE LEGAL APPROACH TO THE
REMAINING

  SCHOOLS IS QUITE DIFFERENT FROM THAT WHICH HAS BEEN OUTLINED

  ABOVE.  FOR ONE THING, THE CONCENTRATIONS OF MINORITIES OCCURRED

  AT AN EARLIER, DATE AND, IN SOME INSTANCES, PRIOR TO THE BROWN

  DECISION BY THE SUPREME COURT.  COMMUNITY ATTITUDES WERE

  DIFFERENT, INCLUDING THE ATTITUDES OF THE SCHOOL BOARD MEMBERS. 

  FURTHERMORE, THE TRANSITIONS WERE MUCH MORE GRADUAL AND LESS

  PERCEPTIBLE THAN THEY WERE IN THE PARK HILL SCHOOLS."  313

  F.SUPP.  61, 69.  (EMPHASIS SUPPLIED.) 

THE DISTRICT COURT NOTED, IN ITS OPINION OF JULY 31, 1969, THE
DIFFERENTIATION THAT THE PLAINTIFFS THEMSELVES HAD MADE BETWEEN THE SO
CALLED "PARK HILL" SCHOOLS AND THE "CORE AREA" SCHOOLS. 

[[HC260'(ORIGINAL DOCUMENT PAGE 260)'  THE PLAINTIFFS HAD SOUGHT A
PRELIMINARY INJUNCTION PROHIBITING THE SCHOOL BOARD FROM RESCINDING
THREE RESOLUTION WHICH HAD BEEN ADOPTED BY A DIFFERENTLY COMPOSED
SCHOOL BOARD EARLIER IN 1969 AND WHICH WOULD HAVE REDRAWN SCHOOL
BOUNDARY LINES IN THE PARK HILL AREA TO ACHIEVE GREATER INTEGRATION. 
IN ITS OPINION GRANTING THAT INJUNCTION, THE DISTRICT COURT SAID: 

     "ATTENTION AT THIS HEARING HAS FOCUSED PRIMARILY ON THE
SCHOOLS

  IN NORTHEAST DENVER, AND PARTICULARLY ON THE AREA WHICH IS

  COMMONLY CALLED PARK HILL.  THE ALLEGED SEGREGATED SCHOOLS,

  ELEMENTARY AND JUNIOR HIGH SCHOOLS IN THIS AREA, HAVE ACQUIRED

  THEIR CHARACTER AS SUCH DURING THE PAST TEN YEARS.  THE PRIMARY

  REASON FOR THIS HAS BEEN THE MIGRATION OF THE NEGRO COMMUNITY

  EASTWARD FROM A CONFINED COMMUNITY SURROUNDING WHAT IS COMMONLY

  CALLED 'FIVE POINTS.'  BEFORE 1950 THE NEGROES ALL LIVED IN A

COMMUNITY BOUNDED ROUGHLY BY 20TH AVENUE ON THE SOUTH, 20TH

  STREET ON THE WEST, YORK STREET ON THE EAST, AND 38TH AVENUE ON

  THE NORTH.  THE SCHOOLS IN THIS AREA WERE, AND ARE NOW, LARGELY

  NEGRO SCHOOLS.  HOWEVER, WE ARE NOT PRESENTLY CONCERNED WITH THE

  VALIDITY OF THIS CONDITION.  DURING THIS PERIOD THE NEGRO

  POPULATION WAS RELAVITELY SMALL, AND THIS CONDITION HAD DEVELOPED

  OVER A LONG PERIOD OF TIME.  HOWEVER, BY 1960 AND, INDEED, AT THE

  PRESENT TIME THIS POPULATION IS SIZEABLE.  AS THE POPULATION HAS

  EXPANDED THE MOVE HAS BEEN TO THE EAST, FIRST TO COLORADO

BOULEVARD, A NATURAL DIVIDING LINE, AND LATER BEYOND COLORADO

  BOULEVARD, BUT WITHIN A NARROW CORRIDOR--MORE OR LESS FIXED

  NORTH-SOUTH BOUNDARIES.  THE MIGRATION CAUSED THESE AREAS TO

  BECOME SUBSTANTIALLY NEGRO AND SEGREGATED."  303 F.SUPP.  279,

  282. 

FURTHER REFERENCE TO THE DISTRICT COURT'S SEVERAL OPINIONS SHOWS
THAT THE ALLEGEDLY DISCRIMINATORY ACTS OF THE SCHOOL BOARD IN THE PARK
HILL AREA OCCURRED BETWEEN 1960 AND 1969, IN THE CONTEXT OF A STEADILY
EXPANDING NEGRO SCHOOL POPULATION IN THE PARK HILL AREA AND HEIGHTENED
SENSITIVITY ON THE PART OF THE COMMUNITY TO THE PROBLEMS RAISED BY
INTEGRATION AND SEGREGATION. 

[[HC261'(ORIGINAL DOCUMENT PAGE 261)' 

THE ALLEGEDLY DISCRIMINATORY ACTS WITH RESPECT TO THE "CORE AREA"
SCHOOLS--NEW MANUAL HIGH SCHOOL, COLE JUNIOR HIGH SCHOOL, MOREY JUNIOR
HIGH SCHOOL, AND BOULEVARD AND COLUMBINE ELEMENTARY SCHOOLS--TOOK PLACE
BETWEEN THE YEARS 1952 AND 1961.  THEY TOOK PLACE, AS INDICATED BY THE
REFERENCES TO THE DISTRICT COURT'S OPINION NOTED ABOVE, NOT IN A
CONTEXT OF A RAPIDLY EXPANDING NEGRO POPULATION, BUT IN A CONTEXT OF A
RELATIVELY FIXED AREA OF THE CITY THAT HAD FOR AN INDEFINITE PERIOD OF
TIME BEEN PREDOMINANTLY NEGRO. 

THUS, QUITE CONTRARY TO THE INTIMATION OF VIRTUAL ARBITRARINESS
CONTAINED IN THE COURT'S OPINION, THE DISTRICT COURT'S SEPARATE
TREATMENT OF THE CLAIMS REPRESENTING THESE TWO SEPARATE AREAS WAS
ABSOLUTELY NECESSARY IF A CAREFUL FACTUAL DETERMINATION, RATHER THAN A
JUMBLED HASH OF UNRELATED EVENTS, WAS TO EMERGE FROM THE FACTFINDING
PROCESS.  THE "INTENT" WITH WHICH A PUBLIC BODY PERFORMS AN OFFICIAL
ACT IS DIFFICULT ENOUGH TO ASCERTAIN UNDER THE MOST FAVORABLE
CIRCUMSTANCES.  SEE PALMER V. THOMPSON, 403 U.S. 217 (1971); MCGINNIS
V. ROYSTER, 410 U.S. 263 (1973).  FAR GREATER DIFFICULTY IS ENCOUNTERED
IF WE ARE TO ASSESS THE INTENTIONS WITH WHICH OFFICIAL ACTS OF A SCHOOL
BOARD ARE PERFORMED OVER A PERIOD OF YEARS.  NOT ONLY DOES THE BOARD
CONSIST OF A NUMBER OF MEMBERS, BUT THE MEMBERSHIP CUSTOMARILY TURN
OVER AS A RESULT OF FREQUENT PERIODIC ELECTIONS.  INDEED, IT WAS AS A
RESULT OF THE 1969 ELECTION FOR MEMBERSHIP ON THE DENVER SCHOOL BOARD
THAT THE BOARD'S POLICY WHICH HAD PREVIOUSLY FAVORED THE CORRECTION OF
RACIAL IMBALANCE BY IMPLEMENTATION OF RESOLUTIONS WAS REVERSED BY THE
ELECTION OF NEW MEMBERS TO THE BOARD. 

[[HC262'(ORIGINAL DOCUMENT PAGE 262)' 

THESE DIFFICULTIES OBVIOUSLY DO NOT MEAN THAT THE INQUIRY MUST BE
ABANDONED, BUT THEY DO SUGGEST THAT THE CARE WITH WHICH THE DISTRICT
COURT CONDUCTED IT IN THIS CASE IS AN ABSOLUTELY ESSENTIAL INGREDIENT
TO ITS SUCCESSFUL CONCLUSION. 

THE COURT'S BALD STATEMENT THAT THE DISTRICT COURT "HELD THAT ITS
FINDING OF INTENTIONAL SEGREGATION IN PARK HILL WAS NOT IN ANY SENSE
MATERIAL TO THE QUESTION OF SEGREGATIVE INTENT IN OTHER AREAS OF THE
CITY" IS FLATLY BELIED BY THE FOLLOWING STATEMENT IN THE DISTRICT
COURT'S OPINION: 

"ALTHOUGH PAST DISCRIMINATORY ACTS MAY NOT BE A SUBSTANTIAL FACTOR
CONTRIBUTING TO PRESENT SEGREGATION, THEY MAY NEVERTHELESS BE PROBATIVE
ON THE ISSUE OF THE SEGREGATIVE PURPOSE OF OTHER DISCRIMINATORY ACTS
WHICH ARE IN FACT A SUBSTANTIAL FACTOR IN CAUSING A PRESENT SEGREGATED
SITUATION."  313 F.SUPP., AT 74 - 75, N. 18. 

THUS, IT IS APPARENT THAT THE DISTRICT COURT WAS FULLY AWARE THAT IT
MIGHT TAKE INTO CONSIDERATION THE INTENTION WITH WHICH IT FOUND THE
SCHOOL BOARD TO HAVE PERFORMED ONE ACT IN ASSESSING ITS INTENTION IN
PERFORMING ANOTHER ACT.  THIS IS THE MOST THAT THE REFERENCES IN THE
COURT'S OPINION TO EVIDENTIARY TREATISES SUCH AS WIGMORE AND MCCORMICK
SUPPORT.  AND IT SHOULD BE NOTED THAT THE CASES CITED BY THE COURT, AND
BY THE AUTHORS OF THE TREATISES, ALMOST INVARIABLY DEAL WITH THE
INTENTION OF A PARTICULAR INDIVIDUAL OR INDIVIDUALS, AND NOT WITH THE
"INTENTION" OF A PUBLIC BODY WHOSE MEMBERSHIP IS CONSTANTLY CHANGING. 

THE COURT'S OPINION TOTALLY CONFUES THE CONCEPT OF A PERMISSIBLE
INFERENCE IN SUCH A SITUATION, OF WHICH THE DISTRICT COURT INDICATED IT
WAS WELL AWARE, WITH WHAT THE COURT CALLS A "PRESUMPTION,"  WHICH
APPARENTLY "SHIFTS . . . THE BURDEN OF PROVING" TO THE DEFENDANT SCHOOL
AUTHORITY. 

[[HC263'(ORIGINAL DOCUMENT PAGE 263)'  NO CASE FROM THIS COURT HAS
EVER GONE FURTHER IN THIS AREA THAN TO SUGGEST THAT A FINDING OF INTENT
IN ONE FACTUAL SITUATION MAY SUPPORT A FINDING OF FACT IN ANOTHER
RELATED FACTUAL SITUATION INVOLVING THE SAME FACTOR, A PRINCIPLE WITH
WHICH, AS INDICATED ABOVE, THE DISTRICT COURT WAS THOROUGHLY FAMILIAR. 

THE DISTRICT COURT CASES CITED BY THE COURT REPRESENT ALMOST
ENTIRELY THE OPINIONS OF JUDGES WHO WERE THEMSELVES FINDERS OF FACT,
CONCLUDING AS A PART OF THE FACT-FINDING PROCESS THAT INTENT WITH
RESPECT TO ONE ACT MAY SUPPORT A CONCLUSION OF A LIKE INTENT WITH
RESPECT TO ANOTHER.  THIS IS BUT A RESTATEMENT OF THE PRINCIPLE OF
WHICH THE DISTRICT COURT SHOWED IT WAS AWARE.  AND, OBVIOUSLY, OPINIONS
OF COURTS OF APPEALS UPHOLDING SUCH FINDINGS OF THE DISTRICT COURT DO
NOT THEMSELVES SUPPORT ANY BROADER PROPOSITION THAN DO THE OPINIONS OF
THE DISTRICT COURT IN QUESTION. 

CHAMBERS V. HENDERSONVILLE CITY BOARD OF EDUCATION, 364 F.2D 189
(CA4 1966), AND NORTH CAROLINA TEACHERS ASSN. V. ASHEBORO CITY BOARD OF
ECUCATION, 393 F.2D 736 (CA4 1968), INVOLVED A BACKGROUND OF
SEGREGATION BY A LAW IN THE STATE OF NORTH CAROLINA AND "THE FAILURE OF
THE PUBLIC SCHOOL SYSTEM TO DESEGREGATE IN COMPLIANCE WITH THE MANDATE
OF BROWN UNTIL FORCED TO DO SO BY LITIGATION."  364 F.2D, AT 192.  THE
COURTS HELD THAT THE DECIMATION IN THE RANKS OF THE NEGRO TEACHERS
WHILE WHITE TEACHERS WERE UNAFFECTED, RAISED AN INFERENCE OF
DISCRIMINATION WHICH CAST UPON THE SCHOOL BOARD THE BURDEN OF
JUSTIFYING SUCH DECIMATION.  IN EACH CASE, THE SCHOOL BOARD HAD OFFERED
VIRTUALLY NO EVIDENCE SUPPORTING ANY NONDISCRIMINATORY BASIS FOR THE
RESULT REACHED.  THE CASES ARE THUS WHOLLY DIFFERENT IN THEIR FACTUAL
BACKGROUND FROM THE CASE NOW BEFORE THE COURT. 

ALSO WORTHY OF NOTE IS THE FACT THAT NEITHER IN CHAMBER NOR IN
ASHEBORO DID THE COURT OF APPEALS REMAND FOR A FURTHER HEARING, BUT IN
EFFECT ORDERED JUDGMENTS FOR THE APPELLANTS ON THE ISSUES CONSIDERED. 

[[HC264'(ORIGINAL DOCUMENT PAGE 264)'  THIS AMOUNTED TO A
DETERMINATION THAT THE FACTUAL FINDING OF THE DISTRICT COURT ON THAT
ISSUE WAS "CLEARLY ERRONEOUS," AND THE STATEMENT AS TO PRESUMPTION WAS
A STATEMENT AS TO THE APPELLATE COURT'S METHOD OF EVALUATING THE
FACTUAL FINDING.  THIS COURT IS IN QUITE A DIFFERENT POSITION IN
REVIEWING THIS CASE, WITH THE FACTUAL FINDING OF THE DISTRICT COURT
HAVING BEEN AFFIRMED BY THE COURT OF APPEALS FOR THE TENTH CIRCUIT,
THAN WAS THE COURT OF APPEALS FOR THE FOURTH CIRCUIT IN REVIEWING THE
FACTUAL FINDINGS OF THE DISTRICT COURTS THAT WERE BEFORE IT IN CHAMBERS
AND IN ASHEBORO.  INDEED, IT WOULD BE CONTRARY TO SETTLED PRINCIPLES
FOR THIS COURT TO UPSET A FACTUAL FINDING SUSTAINED BY THE COURT OF
APPEALS.  "A SEASONED AND WISE RULE OF THIS COURT MAKES CONCURRENT
FINDINGS OF TWO COURTS BELOW FINAL HERE IN THE ABSENCE OF VERY
EXCEPTIONAL SHOWING OF ERROR."  COMSTOCK V. GROUP OF INSTITUTIONAL
INVESTORS, 335 U.S. 211, 214 (1948). 

THE COURT, DOUBTLESS REALIZING THE DIFFICULTY OF JUSTIFYING AN
OUTRIGHT REVERSAL, INSTEAD REMANDS FOR FURTHER FACTUAL DETERMINATION
UNDER NEWLY ENUNCIATED STANDARDS GOVERNING THE EVIDENTIARY TREATMENT OF
THE FINDING AS TO PARK HILL BY THE DISTRICT COURT.  THESE STANDARDS
CALL IN SOME PARTS OF THE OPINION FOR ESTABLISHING A PRESUMPTION, IN
OTHER PARTS FOR SHIFTING THE BURDEN OF PROOF, AND IN OTHER PARTS FOR
RECOGNIZING A PRIMA FACIE CASE.  QUITE APART FROM MY DISAGREEMENT WITH
THE MAJORITY ON ITS CONSTITUTIONAL LAW, I CANNOT BELIEVE IT IS A
SERVICE TO ANY OF THE PARTIES TO THIS LITIGATION TO REQUIRE FURTHER
FACTUAL DETERMINATION UNDER SUCH A VAGUE AND IMPRECISE MANDATE.  BUT,
MORE FUNDAMENTALLY, I BELIEVE THAT A DISTRICT JUDGE THOROUGHLY
SYMPATHETIC TO THE PLAINTIFFS' CLAIMS GAVE THEM THE FULL EVIDENTIARY
HEARING TO WHICH THEY WERE ENTITLED AND CAREFULLY CONSIDERED ALL OF THE
EVIDENCE BEFORE HIM. 

[[HC265'(ORIGINAL DOCUMENT PAGE 265)'  HE SHOWED FULL AWARENESS OF
THE EVIDENTIARY PRINCIPLE THAT HE MIGHT INFER FROM THE "SEGREGATIVE
INTENT" WITH WHICH HE FOUND THE BOARD TO HAVE ACTED IN THE PARK HILL
AREA A LIKE INTENT WITH RESPECT TO THE CORE AREA, BUT HE DELIBERATELY
DECLINED TO DO SO.  THIS WAS HIS PEROGATIVE AS THE FINDER OF FACT, AND
HIS CONCLUSION UPON ITS AFFIRMANCE BY THE COURT OF APPEALS IS BINDING
UPON US.

        III 

THE COURT HAS TAKEN A LONG LEAP IN THIS AREA OF CONSTITUTIONAL LAW
IN EQUATING THE DISTRICT-WIDE CONSEQUENCES OF GERRYMANDERING INDIVIDUAL
ATTENDANCE ZONES IN A DISTRICT WHERE SEPARATION OF THE RACES WAS NEVER
REQUIRED BY LAW WITH STATUES OR ORDINANCES IN OTHER JURISDICTIONS WHICH
DID SO REQUIRE.  IT THEN ADDS TO THIS POTPOURRI A CONFUSING ENUNCIATION
OF EVIDENTIARY RULES IN ORDER TO MAKE IT MORE LIKELY THAT THE TRIAL
COURT WILL ON REMAND REACH THE RESULT WHICH THE COURT APPARENTLY WANTS
IT TO REACH.  SINCE I BELIEVE NEITHER OF THESE STEPS IS JUSTIFIED BY
PRIOR DECISIONS OF THIS COURT, I DISSENT. 

JAMES M. NABRIT III AND GORDON G. GREINER ARGUED THE CAUSE FOR
PETITIONERS.  WITH THEM ON THE BRIEF WERE JACK GREENBERG, CHARLES
STEPHEN RALSTON, NORMAN J. CHACHKIN, ROBERT T. CONNERY, AND ANTHONY G.
AMSTERDAM. 

WILLIAM K. RIS ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE THOMAS E. CREIGHTON, BENJAMIN L. CRAIG, AND MICHAEL H.
JACKSON.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MELVIN L.
WULF, SANFORD JAY ROSEN, AND EDWIN S. KAHN FOR THE AMERICAN CIVIL
LIBERTIES UNION ET AL.; BY STEPHEN J. POLLAK, RICHARD M. SHARP, DAVID
RUBIN, LARRY F. HOBBS, AND LEONARD N. WALDBAUM FOR THE NATIONAL
EDUCATION ASSOCIATION ET AL.; BY ARNOLD FORSTER, PAUL HARTMAN, PAUL S.
BERGER, JOSEPH B. ROBISON, AND SAMUEL RABINOVE FOR THE ANTI-DEFAMATION
LEAGUE OF B'NAI B'RITH ET AL.; AND BY MARIO G. OBLEDO AND MICHAEL
MENDELSON FOR THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY THEODORE L.
SENDAK, ATTORNEY GENERAL, WENDELL C. HAMACHER, DEPUTY ATTORNEY GENERAL,
AND WILLIAM F. HARVEY FOR THE STATE OF INDIANA; BY THOMAS A. SHANNON,
DONALD R. LINCOLN, AND PAUL D. ENGSTRAND FOR SAN DIEGO UNIFIED SCHOOL
DISTRICT; AND BY WILLIS HANNAWALT AND VIVIAN HANNAWALT FOR ROBERT G.
NELSON ET AL. 

BRIEFS OF AMICI CURIAE WERE FILED BY SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL NORMAN, JAMES P. TURNER, BRIAN K. LANDSBERG,
AND THOMAS M. KEELING FOR THE UNITED STATES, AND BY DAVID I. CAPLAN FOR
THE JEWISH RIGHTS COUNCIL, INC.
..END :











ALMEIDA-SANCHEZ V. UNITED STATES 413 U.S. 266 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT 

     NO. 71 - 6278.  ARGUED MARCH 19 AND 28, 1973--DECIDED JUNE 21,

  1973; 452 F.2D 459, REVERSED. 


    PETITIONER, A MEXICAN CITIZEN AND HOLDER OF A VALID WORK

  PERMIT, CHALLENGES THE CONSTITUTIONALITY OF THE BORDER PATROL'S

  WARRANTLESS SEARCH OF HIS AUTOMOBILE 25 AIR MILES NORTH OF THE

  MEXICAN BORDER.  THE SEARCH, MADE WITHOUT PROBABLE CAUSE OR

  CONSENT, UNCOVERED MARIHUANA, WHICH WAS USED TO CONVICT

  PETITIONER OF A FEDERAL CRIME.  THE GOVERNMENT SEEKS TO JUSTIFY

  THE SEARCH ON THE BASIS OF SEC. 287 (A) (3) OF THE IMMIGRATION

  AND NATIONALITY ACT, WHICH PROVIDES FOR WARRANTLESS SEARCHES OF

  AUTOMOBILES AND OTHER CONVEYANCES "WITHIN A REASONABLE DISTANCE

  FROM ANY EXTERNAL BOUNDARY OF THE UNITED STATES," AS AUTHORIZED

  BY REGULATIONS TO BE PROMULGATED BY THE ATTORNEY GENERAL.  THE

  ATTORNEY GENERAL'S REGULATION DEFINES "REASONABLE DISTANCE" AS

  "WITHIN 100 AIR MILES FROM ANY EXTERNAL BOUNDARY OF THE UNITED

  STATES."  THE COURT OF APPEALS UPHELD THE SEARCH ON THE BASIS OF

  THE ACT AND REGULATION.  HELD:  THE WARRANTLESS SEARCH OF

  PETITIONER'S AUTOMOBILE, MADE WITHOUT PROBABLE CAUSE OR CONSENT,

  VIOLATED THE FOURTH AMENDMENT.  269 - 275. 

     (A) THE SEARCH CANNOT BE JUSTIFIED ON THE BASIS OF ANY SPECIAL

  RULES APPLICABLE TO AUTOMOBILE SEARCHES, AS PROBABLE CAUSE WAS

  LACKING; NOR CAN IT BE JUSTIFIED BY ANALOGY WITH ADMINISTRATIVE

  INSPECTIONS, AS THE OFFICERS HAD NO WARRANT OR REASON TO BELIEVE

  THAT PETITIONER HAD CROSSED THE BORDER OR COMMITTED AN OFFENSE,

  AND THERE WAS NO CONSENT BY PETITIONER.  PP. 269 - 272. 

     (B) THE SEARCH WAS NOT A BORDER SEARCH OR THE FUNCTIONAL

  EQUIVALENT THEREOF.  PP. 272 - 275. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, MARSHALL, AND POWELL, JJ., JOINED.  POWELL, J., FILED A
CONCURRING OPINION, POST, P. 275.  WHITE, J., FILED A DISSENTING
OPINION, IN WHICH BURGER, C. J., AND BLACKMUN AND REHNQUIST, JJ.,
JOINED, POST, P. 285. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

[[HC267'(ORIGINAL DOCUMENT PAGE 267)' 

THE PETITIONER IN THIS CASE, A MEXICAN CITIZEN HOLDING A VALID
UNITED STATES WORK PERMIT, WAS CONVICTED OF HAVING KNOWINGLY RECEIVED,
CONCEALED, AND FACILITATED THE TRANSPORTATION OF A LARGE QUANTITY OF
ILLEGALLY IMPORTED MARIHUANA IN VIOLATION OF 21 U.S.C. ^ 176A (1964
ED.).  HIS SOLE CONTENTION ON APPEAL WAS THAT THE SEARCH OF HIS
AUTOMOBILE THAT UNCOVERED THE MARIHUANA WAS UNCONSTITUTIONAL UNDER THE
FOURTH AMENDMENT AND THAT, UNDER THE RULE OF WEEKS V. UNITED STATES,
232 U.S. 383, THE MARIHUANA SHOULD NOT HAVE BEEN ADMITTED AS EVIDENCE
AGAINST HIM. 

THE BASIC FACTS IN THE CASE ARE NEITHER COMPLICATED NOR DISPUTED. 
THE PETITIONER WAS STOPPED BY THE UNITED STATES BORDER PATROL ON STATE
HIGHWAY 78 IN CALIFORNIA, AND HIS CAR WAS THOROUGHLY SEARCHED.  THE
ROAD IS ESSENTIALLY AN EAST-WEST HIGHWAY THAT RUNS FOR PART OF ITS
COURSE THROUGH AN UNDEVELOPED REGION.  AT ABOUT THE POINT WHERE THE
PETITIONER WAS STOPPED THE ROAD MEANDERS NORTH AS WELL AS EAST -- BUT
NOWHERE DOES THE ROAD REACH THE MEXICAN BORDER, AND AT ALL POINTS IT
LIES NORTH OF U.S. 80, A MAJOR EAST-WEST HIGHWAY ENTIRELY WITHIN THE
UNITED STATES THAT CONNECTS THE SOUTHWEST WITH THE WEST COAST. 

[[HC268'(ORIGINAL DOCUMENT PAGE 268)'  THE PETITIONER WAS SOME 25
AIR MILES NORTH OF THE BORDER WHEN HE WAS STOPPED.  IT IS UNDENIED THAT
THE BORDER PATROL HAD NO SEARCH WARRANT, AND THAT THERE WAS NO PROBABLE
CAUSE OF ANY KIND FOR THE STOP OR THE SUBSEQUENT SEARCH -- NOT EVEN THE
"REASONABLE SUSPICION"  FOUND SUFFICIENT FOR A STREET DETENTION AND
WEAPONS SEARCH IN TERRY V. OHIO, 392 U.S. 1, AND ADAMS V. WILLIAMS, 407
U.S. 143. 

THE BORDER PATROL CONDUCTS THREE TYPES OF SURVEILLANCE ALONG INLAND
ROADWAYS, ALL IN THE ASSERTED INTEREST OF DETECTING THE ILLEGAL
IMPORTATION OF ALIENS.  PERMANENT CHECKPOINTS ARE MAINTAINED AT CERTAIN
NODAL INTERSECTIONS; TEMPORARY CHECKPOINTS ARE ESTABLISHED FROM TIME TO
TIME AT VARIOUS PLACES; AND FINALLY, THERE ARE ROVING PATROLS SUCH AS
THE ONE THAT STOPPED AND SEARCHED THE PETITIONER'S CAR.  IN ALL OF
THESE OPERATIONS, IT IS ARGUED, THE AGENTS ARE ACTING WITHIN THE
CONSTITUTION WHEN THEY STOP AND SEARCH AUTOMOBILES WITHOUT A WARRANT,
WITHOUT PROBABLE CAUSE TO BELIEVE THE CARS CONTAIN ALIENS, AND EVEN
WITHOUT PROBABLE CAUSE TO BELIEVE THE CARS HAVE MADE A BORDER
CROSSING.  THE ONLY ASSERTED JUSTIFICATION FOR THIS EXTRAVAGANT LICENSE
TO SEARCH IS ^ 287 (A) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 66
STAT. 233, 8 U.S.C. SEC. 1357 (A) (3), WHICH SIMPLY PROVIDES FOR
WARRANTLESS SEARCHES OF AUTOMOBILES AND OTHER CONVEYANCES "WITHIN A
REASONABLE DISTANCE FROM ANY EXTERNAL BOUNDARY OF THE UNITED STATES,"
AS AUTHORIZED BY REGULATIONS TO BE PROMULGATED BY THE ATTORNEY
GENERAL.  THE ATTORNEY GENERAL'S REGULATION, 8 CFR SEC. 287.1, DEFINES
"REASONABLE DISTANCE" AS "WITHIN 100 AIR MILES FROM ANY EXTERNAL
BOUNDARY OF THE UNITED STATES." 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT RECOGNIZED THAT THE
SEARCH OF PETITIONER'S AUTOMOBILE WAS NOT A "BORDER SEARCH," BUT UPHELD
ITS VALIDITY ON THE BASIS OF THE ABOVE-MENTIONED PORTION OF THE
IMMIGRATION AND NATIONALITY ACT AND ACCOMPANYING REGULATION. 

[[HC269'(ORIGINAL DOCUMENT PAGE 269)'  452 F.2D 459, 461.  WE
GRANTED CERTIORARI, 406 U.S. 944, TO CONSIDER THE CONSTITUTIONALITY OF
THE SEARCH. 

  I 

NO CLAIM IS MADE, NOR COULD ONE BE, THAT THE SEARCH OF THE
PETITIONER'S CAR WAS CONSTITUTIONAL UNDER ANY PREVIOUS DECISION OF THIS
COURT INVOLVING THE SEARCH OF AN AUTOMOBILE.  IT IS SETTLED, OF COURSE,
THAT A STOP AND SEARCH OF A MOVING AUTOMOBILE CAN BE MADE WITHOUT A
WARRANT.  THAT NARROW EXCEPTION TO THE WARRANT REQUIREMENT WAS FIRST
ESTABLISHED IN CARROLL V. UNITED STATES, 267 U.S. 132.  THE COURT IN
CARROLL APPROVED A PORTION OF THE VOLSTEAD ACT PROVIDING FOR
WARRANTLESS SEARCHES OF AUTOMOBILES WHEN THERE WAS PROBABLE CAUSE TO
BELIEVE THEY CONTAINED ILLEGAL ALCOHOLIC BEVERAGES.  THE COURT
RECOGNIZED THAT A MOVING AUTOMOBILE ON THE OPEN ROAD PRESENTS A
SITUATION "WHERE IT IS NOT PRACTICABLE TO SECURE A WARRANT BECAUSE THE
VEHICLE CAN BE QUICKLY MOVED OUT OF THE LOCALITY OR JURISDICTION IN
WHICH THE WARRANT MUST BE SOUGHT."  ID., AT 153.  CARROLL HAS BEEN
FOLLOWED IN A LINE OF SUBSEQUENT CASES, /1/  BUT THE CARROLL DOCTRINE
DOES NOT DECLARE A FIELD DAY FOR THE POLICE IN SEARCHING AUTOMOBILES. 
AUTOMOBILE OR NO AUTOMOBILE, THERE MUST BE PROBABLE CAUSE FOR THE
SEARCH.  /2/  AS MR. JUSTICE WHITE WROTE FOR THE COURT IN CHAMBERS V.
MARONEY, 399 U.S. 42, 51:  "IN ENFORCING THE FOURTH AMENDMENT'S
PROHIBITION AGAINST UNREASONABLE SEARCHES AND SEIZURES, THE COURT HAS
INSISTED UPON PROBABLE CAUSE AS A MINIMUM REQUIREMENT FOR A REASONABLE
SEARCH PERMITTED BY THE CONSTITUTION." 

[[HC270'(ORIGINAL DOCUMENT PAGE 270)' 

IN SEEKING A RATIONALE FOR THE VALIDITY OF THE SEARCH IN THIS CASE,
THE GOVERNMENT THUS UNDERSTANDABLY SIDESTEPS THE AUTOMOBILE SEARCH
CASES.  INSTEAD, THE GOVERNMENT RELIES HEAVILY ON CASES DEALING WITH
ADMINISTRATIVE INSPECTIONS.  BUT THESE CASES FAIL TO SUPPORT THE
CONSTITUTIONALITY OF THIS SEARCH. 

IN CAMARA V. MINICIPAL COURT, 387 U.S. 523, THE COURT HELD THAT
ADMINISTRATIVE INSPECTIONS TO ENFORCE COMMUNITY HEALTH AND WELFARE
REGULATIONS COULD BE MADE ON LESS THAN PROBABLE CAUSE TO BELIEVE THAT
PARTICULAR DWELLINGS WERE SITES OF PARTICULAR VIOLATIONS.  ID., AT 534
536, 538.  YET THE COURT INSISTED THAT THE INSPECTOR OBTAIN EITHER
CONSENT OR A WARRANT SUPPORTED BY PARTICULAR PHYSICAL AND DEMOGRAPHIC
CHARACTERISTICS OF THE AREAS TO BE SEARCHED.  IBID.  SEE ALSO SEE V.
CITY OF SEATTLE, 387 U.S. 541.  THE SEARCH IN THE PRESENT CASE WAS
CONDUCTED IN THE UNFETTERED DISCRETION OF THE MEMBERS OF THE BORDER
PATROL, WHO DID NOT HAVE A WARRANT, /3/  PROBABLE CAUSE, OR CONSENT. 
THE SEARCH THUS EMBODIED PRECISELY THE EVIL THE COURT SAW IN CAMARA
WHEN IT INSISTED THAT THE "DISCRETION OF THE OFFICIAL IN THE FIELD" BE
CIRCUMSCRIBED BY OBTAINING A WARRANT PRIOR TO THE INSPECTION.  CAMARA,
SUPRA, AT 532 - 533. 

TWO OTHER ADMINISTRATIVE INSEPCTION CASES RELIED UPON BY THE
GOVERNMENT ARE EQUALLY INAPPOSITE.  COLONNADE CATERING CORP. V. UNITED
STATES, 397 U.S. 72, AND UNITED STATES V. BISWELL, 406 U.S. 311, BOTH
APPROVED WARRANTLESS INSPECTIONS OF COMMERCIAL ENTERPRISES ENGAGED IN
BUSINESSES CLOSELY REGULATED AND LICENSED BY THE GOVERNMENT. 

[[HC271'(ORIGINAL DOCUMENT PAGE 271)'  IN COLONNADE, THE COURT
STRESSED THE LONG HISTORY OF FEDERAL REGULATION AND TAXATION OF THE
MANUFACTURE AND SALE OF LIQUOR, 397 U.S., AT 76 - 77.  IN BISWELL, THE
COURT NOTED THE PERVASIVE SYSTEM OF REGULATION AND REPORTING IMPOSED ON
LICENSED GUN DEALERS, 406 U.S, AT 312 N. 1, 315 - 316. 

A CENTRAL DIFFERENCE BETWEEN THOSE CASES AND THIS ONE IS THAT
BUSINESSMEN ENGAGED IN SUCH FEDERALLY LICENSED AND REGULATED
ENTERPRISES ACCEPT THE BURDENS AS WELL AS THE BENEFITS OF THEIR TRADE,
WHEREAS THE PETITIONER HERE WAS NOT ENGAGED IN ANY REGULATED OR
LICENSED BUSINESS.  THE BUSINESSMAN IN A REGULATED INDUSTRY IN EFFECT
CONSENTS TO THE RESTRICTIONS PLACED UPON HIM.  AS THE COURT STATED IN
BISWELL: 

     "IT IS ALSO PLAIN THAT INSPECTIONS FOR COMPLIANCE WITH THE GUN

  CONTROL ACT POSE ONLY LIMITED THREATS TO THE DEALER'S JUSTIFIABLE

  EXPECTATIONS OF PRIVACY.  WHEN A DEALER CHOOSES TO ENGAGE IN THIS

  PERVASIVELY REGULATED BUSINESS AND ACCEPT A FEDERAL LICENSE, HE

  DOES SO WITH THE KNOWLEDGE THAT HIS BUSINESS RECORDS, FIREARMS,

  AND AMMUNITION WILL BE SUBJECT TO EFFECTIVE INSPECTION.  EACH

  LICENSEE IS ANNUALLY FURNISHED WITH A REVISED COMPILATION OF

  ORDINANCES THAT DESCRIBE HIS OBLIGATIONS AND DEFINE THE

  INSPECTOR'S AUTHORITY.  . . . THE DEALER IS NOT LEFT TO WONDER

  ABOUT THE PURPOSES OF THE INSPECTOR OR THE LIMITS OF HIS TASK." 

  ID., AT 316. 

MOREOVER, IN COLONNADE AND BISWELL, THE SEARCHING OFFICERS KNEW WITH
CERTAINTY THAT THE PREMISES SEARCHED WERE IN FACT UTILIZED FOR THE SALE
OF LIQUOR AND GUNS.  IN THE PRESENT CASE, BY CONTRAST, THERE WAS NO
SUCH ASSURANCE THAT THE INDIVIDUAL SEARCHED WAS WITHIN THE PROPER SCOPE
OF OFFICIAL SCRUTINY -- THAT IS, THERE WAS NO REASON WHATEVER TO
BELIEVE THAT HE OR HIS AUTOMOBILE HAD EVEN CROSSED THE BORDER, MUCH
LESS THAT HE WAS GUILTY OF THE COMMISSION OF AN OFFENSE. 

[[HC272'(ORIGINAL DOCUMENT PAGE 272)'

        II 

SINCE NEITHER THIS COURT'S AUTOMOBILE SEARCH DECISIONS NOR ITS
ADMINISTRATIVE INSPECTION DECISIONS PROVIDE ANY SUPPORT FOR THE
CONSTITUTIONALITY OF THE STOP AND SEARCH IN THE PRESENT CASE, WE ARE
LEFT SIMPLY WITH THE STATUTE THAT PURPORTS TO AUTHORIZE AUTOMOBILES TO
BE STOPPED AND SEARCHED, WITHOUT A WARRANT AND "WITHIN A REASONABLE
DISTANCE FROM ANY EXTERNAL BOUNDARY OF THE UNITED STATES."  IT IS
CLEAR, OF COURSE, THAT NO ACT OF CONGRESS CAN AUTHORIZE A VIOLATION OF
THE CONSTITUTION.  BUT UNDER FAMILIAR PRINCIPLES OF CONSTITUTIONAL
ADJUDICATION, OUR DUTY IS TO CONSTRUE THE STATUTE, IF POSSIBLE, IN A
MANNER CONSISTENT WITH THE FOURTH AMENDMENT.  ASHWANDER V. TENNESSEE
VALLEY AUTHORITY, 297 U.S. 288, 348 (BRANDEIS, J., CONCURRING). 

IT IS UNDOUBTEDLY WITHIN THE POWER OF THE FEDERAL GOVERNMENT TO
EXCLUDE ALIENS FROM THE COUNTRY.  CHAE CHAN PING V. UNITED STATES, 130
U.S. 581, 603 - 604.  IT IS ALSO WITHOUT DOUBT THAT THIS POWER CAN BE
EFFECTUATED BY ROUTINE INSPECTIONS AND SEARCHES OF INDIVIDUALS OR
CONVEYANCES SEEKING TO CROSS OUR BORDERS.  AS THE COURT STATED IN
CARROLL V. UNITED STATES: "TRAVELERS MAY BE SO STOPPED IN CROSSING AN
INTERNATIONAL BOUNDARY BECAUSE OF NATIONAL SELF PROTECTION REASONABLY
REQUIRING ONE ENTERING THE COUNTRY TO IDENTIFY HIMSELF AS ENTITLED TO
COME IN, AND HIS BELONGINGS AS EFFECTS WHICH MAY BE LAWFULLY BROUGHT
IN."  267 U.S., AT 154.  SEE ALSO BOYD V. UNITED STATES, 116 U.S. 616. 

WHATEVER THE PERMISSIBLE SCOPE OF INTRUSIVENESS OF A ROUTINE BORDER
SEARCH MIGHT BE, SEARCHES OF THIS KIND MAY IN CERTAIN CIRCUMSTANCES
TAKE PLACE NOT ONLY AT THE BORDER ITSELF, BUT AT ITS FUNCTIONAL
EQUIVALENTS AS WELL.  FOR EXAMPLE, SEARCHES AT AN ESTABLISHED STATION
NEAR THE BORDER, AT A POINT MARKING THE CONFLUENCE OF TWO OR MORE ROADS
THAT EXTEND FROM THE BORDER, MIGHT BE FUNCTIONAL EQUIVALENTS OF BORDER
SEARCHES. 

[[HC273'(ORIGINAL DOCUMENT PAGE 273)' FOR ANOTHER EXAMPLE, A SEARCH
OF THE PASSENGERS AND CARGO OF AN AIRPLANE ARRIVING AT A ST. LOUIS
AIRPORT AFTER A NONSTOP FLIGHT FROM MEXICO CITY WOULD CLEARLY BE THE
FUNCTIONAL EQUIVALENT OF A BORDER SEARCH.  /4/ 

BUT THE SEARCH OF THE PETITIONER'S AUTOMOBILE BY A ROVING PATROL, ON
A CALIFORNIA ROAD THAT LIES AT ALL POINTS AT LEAST 20 MILES NORTH OF
THE MEXICAN BORDER, /5/  WAS OF A WHOLLY DIFFERENT SORT.  IN THE
ABSENCE OF PROBABLE CAUSE OR CONSENT, THAT SEARCH VIOLATED THE
PETITIONER'S FOURTH AMENDMENT RIGHT TO BE FREE OF "UNREASONABLE
SEARCHES AND SEIZURES." 

IT IS NOT ENOUGH TO ARGUE, AS DOES THE GOVERNMENT, THAT THE PROBLEM
OF DETERRING UNALWFUL ENTRY BY ALIENS ACROSS LONG EXPANSES OF NATURAL
BOUNDARIES IS A SERIOUS ONE.  THE NEEDS OF LAW ENFORCEMENT STAND IN
CONSTANT TENSION WITH THE CONSTITUTION'S PROTECTIONS OF THE INDIVIDUAL
AGAINST CERTAIN EXERCISES OF OFFICIAL POWER.  IT IS PRECISELY THE
PREDICTABILITY OF THESE PRESSURES THAT COUNSELS A RESOLUTE LOYALTY TO
CONSTITUTIONAL SAFEGUARDS.  IT IS WELL TO RECALL THE WORDS OF MR.
JUSTICE JACKSON, SOON AFTER HIS RETURN FROM THE NUREMBERG TRIALS: 

     "THESE (FOURTH AMENDMENT RIGHTS), I PROTEST, ARE NOT MERE

SECOND-CLASS RIGHTS BUT BELONG IN THE CATALOG OF INDESPENSIBLE

  FREEDOMS.  AMONG DEPRIVATIONS OF RIGHTS, NONE IS SO EFFECTIVE IN

  COWING A POPULATION, CRUSHING THE SPIRIT OF THE INDIVIDUAL AND

  PUTTING TERROR IN EVERY HEART.  UNCONTROLLED SEARCH AND SEIZURE

  IS ONE OF THE FIRST AND MOST EFFECTIVE WEAPONS IN THE ARSENAL OF

  EVERY ARBITRARY GOVERNMENT."  BRINEGAR V. UNITED STATES, 338 U.S.

  160, 180 (JACKSON, J., DISSENTING). 

THE COURT THAT DECIDED CARROLL V. UNITED STATES, SUPRA, SAT DURING A
PERIOD IN OUR HISTORY WHEN THE NATION WAS CONFRONTED WITH A LAW
ENFORCEMENT PROBLEM OF NO SMALL MAGNITUDE -- THE ENFORCEMENT OF THE
PROHIBITION LAWS.  BUT THAT COURT RESISTED THE PRESSURE OF OFFICIAL
EXPEDIENCE AGAINST THE GUARANTEE OF THE FOURTH AMENDMENT.  MR. CHIEF
JUSTICE TAFT'S OPINION FOR THE COURT DISTINGUISHED BETWEEN SEARCHES AT
THE BORDER AND IN THE INTERIOR, AND CLEARLY CONTROLS THE CASE AT BAR: 

"IT WOULD BE INTOLERABLE AND UNREASONABLE IF A PROHIBITION ANGENT
WERE AUTHORIZED TO STOP EVERY AUTOMOBILE ON THE CHANCE OF FINDING
LIQUOR AND THUS SUBJECT ALL PERSONS LAWFULLY USING THE HIGHWAYS TO THE
INCONVENIENCE AND INDIGNITY OF SUCH A SEARCH.  TRAVELLERS MAY BE SO
STOPPED IN CROSSING AN INTERNATIONAL BOUNDARY BECAUSE OF NATIONAL SELF
PROTECTION REASONABLY REQUIRING ONE ENTERING THE COUNTRY TO IDENTIFY
HIMSELF AS ENTITLED TO COME IN, AND HIS BELONGINGS AS EFFECTS WHICH MAY
BE LAWFULLY BROUGHT IN.  BUT THOSE LAWFULLY WITHIN THE COUNTRY,
ENTITLED TO USE THE PUBLIC HIGHWAYS, HAVE A RIGHT TO FREE PASSAGE
WITHOUT INTERRUPTION OR SEARCH UNLESS THERE IS KNOWN TO A COMPETENT
OFFICIAL AUTHORIZED TO SEARCH, PROBABLE CAUSE FOR BELIEVING THAT THEIR
VEHICLES ARE CARRYING CONTRABAND OR ILLEGAL MERCHANDISE." 
[[HC275'(ORIGINAL DOCUMENT PAGE 275)'

  267 U.S., AT 153 - 154. 

ACCORRDINGLY, THE JUDGEMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  E. G., CHAMBERS V. MARONEY, 399 U.S. 42; DYKE V. TAYLOR
IMPLEMENT MFG. CO., 391 U.S. 216; BRINEGAR V. UNITED STATES, 338 U.S.
160; HUSTY V. UNITED STATES, 282 U.S. 694.     /2/  MOREOVER, "(NEITHER
CARROLL, SUPRA, NOR OTHER CASES IN THIS COURT REQUIRE OR SUGGEST THAT
IN EVERY CONCEIVABLE CIRCUMSTANCE THE SEARCH OF AN AUTO EVEN WITH
PROBABLE CAUSE MAY BE MADE WITHOUT THE EXTRA PROTECTION FOR PRIVACY
THAT A WARRANT AFFORDS."  CHAMBERS V. MARONEY, SUPRA, AT 50.  SEE ALSO
COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 458 - 464. 

/3/  THE JUSTICES WHO JOIN THIS OPINION ARE DIVIDED UPON THE
QUESTION OF THE CONSTITUTIONALITY OF AREA SEARCH WARRANTS SUCH AS
DESCRIBED IN MR. JUSTICE POWELL'S CONCURRING OPINION. 

/4/  WITH RESPECT TO AIRCRAFT, 8 CFR ^ 281.1 DEFINES "REASONABLE
DISTANCE" AS "ANY DISTANCE FIXED PURSUANT TO PARAGRAPH (B) OF THIS
NATURALIZATION TO APPROVE SEARCHES AT A GREATER DISTANCE THAN 100 AIR
MILES FROM A BORDER "BECAUSE OF UNUSUAL CIRCUMSTANCES." 

/5/  THE GOVERNMENT REPRESENTS THAT THE HIGHWAY ON WHICH THIS SEARCH
OCCURRED IS A COMMON ROUTE FOR ILLEGALLY ENTERED ALIENS TO TRAVEL, AND
THAT ROVING PATROLS APPREHENDED 195 ALIENS ON THAT ROAD IN ONE YRAR. 
BUT IT IS, OF COURSE, QUITE POSSIBLE THAT EVERY ONE OF THOSE ALIENS WAS
APPREHENDED AS A RESULT OF A VALID SEARCH MADE UPON PROBABLE CAUSE.  ON
THE OTHER HAND, THERE IS NO TELLING HOW MANY PERFECTLY INNOCENT DRIVERS
HAVE BEEN STOPPED ON THIS ROAD WITHOUT ANY PROBABLE CAUSE, AND BEEN
SUBJECTED TO A SEARCH IN THE TRUNKS, UNDER THE HOODS, AND BEHIND THE
REAR SEATS OF THEIR AUTOMOBILES. 

[[DOP 

MR. JUSTICE POWELL, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT WHICH SUFFICIENTLY ESTABLISHES
THAT NONE OF OUR FOURTH AMENDMENT DECISIONS SUPPORTS THE SEARCH
CONDUCTED IN THIS CASE, I ADD THIS CONCURRING OPINION TO ELABORATE ON
MY VIEWS AS TO THE MEANING OF THE FOURTH AMENDMENT IN THIS CONTEXT.  WE
ARE CONFRONTED HERE WITH THE ALL-TOO-FAMILIAR NECESSITY OF RECONCILING
A LEGITIMATE NEED OF GOVERNMENT WITH CONSTITUTIONALLY PROTECTED
RIGHTS.  THERE CAN BE NO QUESTION AS TO THE SERIOUSNESS AND LEGITIMACY
OF THE LAW ENFORCEMENT PROBLEM WITH RESPECT TO ENFORCING ALONG
THOUSANDS OF MILES OF OPEN BORDER VALID IMMIGRATION AND RELATED LAWS. 
NOR CAN THERE BE ANY QUESTION AS TO THE NECESSITY, IN OUR FREE SOCIETY,
OF SAFEGUARDING PERSONS AGAINST SEARCHES AND SEIZURES PROSCRIBED BY THE
FOURTH AMENDMENT.  I BELIEVE THAT A RESOLUTION OF THE ISSUE RAISED BY
THIS CASE IS POSSIBLE WITH DUE RECOGNITION OF BOTH OF THESE INTERESTS,
AND IN A MANNER COMPATIBLE WITH THE PRIOR DECISIONS OF THIS COURT.  /1/

        I 

THE SEARCH HERE INVOLVED WAS CARRIED OUT AS PART OF A ROVING SEARCH
OF AUTOMOBILES IN AN AREA GENERALLY PROXIMATE TO THE MEXICAN BORDER. 
IT WAS NOT A BORDER SEARCH, NOR CAN IT FAIRLY BE SAID TO HAVE BEEN A
SEARCH CONDUCTED AT THE "FUNCTIONAL EQUIVALENT" OF THE BORDER. 

[[HC276'(ORIGINAL DOCUMENT PAGE 276)'  NOR DOES THIS CASE INVOLVE
THE CONSTITUTIONAL PROPRIETY OF SEARCHES AT PERMANENT OR TEMPORARY
CHECKPOINTS REMOVED FROM THE BORDER OR ITS FUNCTIONAL EQUIVALENT.  NOR,
FINALLY, WAS THE SEARCH BASED ON CAUSE IN THE ORDINARY SENSE OF
SPECIFIC KNOWLEDGE CONCERNING AN AUTOMOBILE OR ITS PASSENGERS.  /2/
THE QUESTION POSED, RATHER, IS WHETHER AND UNDER WHAT CIRCUMSTANCES THE
BORDER PATROL MAY LAWFULLY CONDUCT ROVING SEARCHES OF AUTOMOBILES IN
AREAS NOT FAR REMOVED FROM THE BORDER FOR THE PURPOSE OF APPREHENDING
ALIENS ILLEGALLY ENTERING OR IN THE COUNTRY. 

THE GOVERNMENT HAS MADE A CONVINCING SHOWING THAT LARGE NUMBERS OF
ALIENS CROSS OUR BORDERS ILLEGALLY AT PLACES OTHER THAN ESTABLISHED
CROSSING POINTS, THAT THEY ARE OFTEN ASSISTED BY SMUGGLERS, THAT EVEN
THOSE WHO CROSS ON FOOT ARE MET AND TRANSPORTED TO THEIR DESTINATIONS
BY AUTOMOBILES, AND THAT ROVING CHECKS OF AUTOMOBILES ARE THE ONLY
FEASIBLE MEANS OF APPREHENDING THEM.  IT WOULD, OF COURSE, BE WHOLLY
IMPRACTICABLE TO MAINTAIN A CONSTANT PATROL ALONG THOUSANDS OF MILES OF
BORDER.  MOREOVER, BECAUSE MANY OF THESE ALIENS CROSS THE BORDER ON
FOOT, OR AT PLACES OTHER THAN ESTABLISHED CHECKPOINTS, IT IS SIMPLY NOT
POSSIBLE IN MOST CASES FOR THE GOVERNMENT TO OBTAIN SPECIFIC KNOWLEDGE
THAT A PERSON RIDING OR STOWED IN AN AUTOMOBILE IS AN ALIEN ILLEGALLY
IN THE COUNTRY.  THUS THE MAGNITUDE OF THE PROBLEM IS CLEAR. 

[[HC277'(ORIGINAL DOCUMENT PAGE 277)'  AN ANSWER, RECONCILING THE
OBVIOUS NEEDS OF LAW ENFORCEMENT WITH RELEVANT CONSTITUTIONAL RIGHTS,
IS FAR LESS CLEAR. 

        II 

THE GOVERNMENT'S ARGUMENT TO SUSTAIN THE SEARCH HERE IS SIMPLY THAT
IT WAS REASONABLE UNDER THE CIRCUMSTANCES.  BUT IT IS BY NOW AXIOMATIC
THAT THE FOURTH AMENDMENT'S PROSCRIPTION OF "UNREASONABLE SEARCHES AND
SEIZURES" IS TO BE READ IN CONJUNCTION WITH ITS COMMAND THAT "NO
WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE."  UNDER OUR CASES, BOTH
THE CONCEPT OF PROBABLE CAUSE AND THE REQUIREMENT OF A WARRANT BEAR ON
THE REASONABLENESS OF A SEARCH, THOUGH IN CERTAIN LIMITED CIRCUMSTANCES
NEITHER IS REQUIRED. 

BEFORE DECIDING WHETHER A WARRANT IS REQUIRED, I WILL FIRST ADDRESS
THE THRESHOLD QUESTION OF WHETHER SOME FUNCTIONAL EQUIVALENT OF
PROBABLE CAUSE MAY EXIST FOR THE TYPE OF SEARCH CONDUCTED IN THIS
CASE.  THE PROBLEM OF ASCERTAINING THE MEANING OF THE PROBABLE-CAUSE
REQUIREMENT IN THE CONTEXT OF ROVING SEARCHES OF THE SORT CONDUCTED
HERE IS MEASURABLY ASSISTED BY THE COURT'S OPINION IN CAMARA V.
MUNICIPAL COURT, 387 U.S. 523 (1967), ON WHICH THE GOVERNMENT RELIES
HEAVILY.  THE COURT WAS THERE CONCERNED WITH THE NATURE OF THE PROBABLE
CAUSE REQUIREMENT IN THE CONTEXT OF SEARCHES TO IDENTIFY HOUSING CODE
VIOLATIONS AND WAS PERSUADED THAT THE ONLY WORKABLE METHOD OF
ENFORCEMENT WAS PERIODIC INSPECTION OF ALL STRUCTURES: 

"IT IS HERE THAT THE PROBABLE CAUSE DEBATE IS FOCUSED, FOR THE
AGENCY'S DECISION TO CONDUCT AN AREA INSPECTION IS UNAVOIDABLY BASED ON
ITS APPRAISAL OF CONDITIONS IN THE AREA AS A WHOLE, NOT ON ITS
KNOWLEDGE OF CONDITIONS IN EACH PARTICULAR BUILDING."  ID., AT 536. 

IN CONCLUDING THAT SUCH GENERAL KNOWLEDGE MET THE PROBABLE-CAUSE
REQUIREMENT UNDER THOSE CIRCUMSTANCES, THE COURT TOOK NOTE OF A "LONG
HISTORY OF JUDICIAL AND PUBLIC ACCEPTANCE," OF THE ABSENCE OF OTHER
METHODS FOR VINDICATING THE PUBLIC INTEREST IN PREVENTING OR ABATING
DANGEROUS CONDITIONS, AND OF THE LIMITED INVASION OF PRIVACY OCCASIONED
BY ADMINISTRATIVE INSPECTIONS WHICH ARE "NEITHER PERSONAL IN NATURE NOR
AIMED AT THE DISCOVERY OF EVIDENCE OF CRIME."  ID., AT 537. 

ROVING AUTOMOBILE SEARCHES IN BORDER REGIONS FOR ALIENS, LIKEWISE,
HAVE BEEN CONSISTENTLY APPROVED BY THE JUDICIARY.  WHILE THE QUESTION
IS ONE OF FIRST IMPRESSION IN THIS COURT, SUCH SEARCHES UNIFORMLY HAVE
BEEN SUSTAINED BY THE COURTS OF APPEALS WHOSE JURISDICTIONS INCLUDE
THOSE AREAS OF THE BORDER BETWEEN MEXICO AND THE UNITED STATES WHERE
THE PROBLEM HAS BEEN MOST SEVERE.  SEE, E. G., UNITED STATES V.
MIRANDA, 426 F.2D 283 (CA9 1970); ROA-RODRIQUEZ V. UNITED STATES, 410
F.2D 1206 (CA10 1969).  MOROVER, AS NOTED ABOVE, NO ALTERNATIVE
SOLUTION IS REASONABLY POSSIBLE. 

THE GOVERNMENT FURTHER ARGUES THAT SUCH SEARCHES RESEMBLE THOSE
CONDUCTED IN CAMARA IN THAT THEY ARE UNDERTAKEN PRIMARILY FOR
ADMINISTRATIVE RATHER THAN PROSECUTORIAL PURPOSES, THAT THEIR FUNCTION
IS SIMPLY TO LOCATE THOSE WHO ARE ILLEGALLY HERE AND TO DEPORT THEM. 
BRIEF FOR THE UNITED STATES 28 N. 25.  THIS ARGUMENT IS SUPPORTED BY
THE ASSERTION THAT ONLY 3% OF ALIENS APPREHENDED IN THIS COUNTRY ARE
PROSECUTED.  WHILE THE LOW RATE OF PROSECUTION OFFERS NO GREAT SOLACE
TO THE INNOCENT WHOSE AUTOMOBILES ARE SEARCHED OR TO THE FEW WHO ARE
PROSECUTED, IT DOES SERVE TO DIFFERENTIATE THIS CLASS OF SEARCHES FROM
RANDOM AREA SEARCHES WHICH ARE NO MORE THAN "FISHING EXPEDITIONS" FOR
EVIDENCE TO SUPPORT PROSECUTIONS.  THE POSSIBILITY OF PROSECUTION DOES
NOT DISTINGUISH SUCH SEARCHES FROM THOSE INVOLVED IN CAMARA.  DESPITE
THE COURT'S ASSERTION IN THAT CASE THAT THE SEARCHES WERE NOT "AIMED AT
THE DISCOVERY OF EVIDENCE OF CRIME,"  387 U.S., AT 537, VIOLATORS OF
THE HOUSING CODE THERE WERE SUBJECT TO CRIMINAL PENALITES.  ID., AT 527
N. 2. 

[[HC279'(ORIGINAL DOCUMENT PAGE 279)' 

OF PERHAPS GREATER WEIGHT IS THE FACT THAT THESE SEARCHES, ACCORDING
TO THE GOVERNMENT, ARE CONDUCTED IN AREAS WHERE THE CONCENTRATION OF
ILLEGALLY PRESENT ALIENS IS HIGH, BOTH IN ABSOLUTE TERMS AND IN
PROPORTION TO THE NUMBER OF PERSONS LEGALLY PRESENT.  WHILE THESE
SEARCHES ARE NOT BORDER SEARCHES IN THE CONVENTIONAL SENSE, THEY ARE
INCIDENTAL TO THE PROTECTION OF THE BORDER AND DRAW A LARGE MEASURE OF
JUSTIFICATION FROM THE GOVERNMENT'S EXTRAORDINARY RESPONSIBILITIES AND
POWERS WITH RESPECT TO THE BORDER.  FINALLY, AND SIGNIFICANTLY, THESE
ARE SEARCHES OF AUTOMOBILES RATHER THAN SEARCHES OF PERSONS OR
BUILDINGS.  THE SEARCH OF AN AUTOMOBILE IS FAR LESS INTRUSIVE ON THE
RIGHTS PROTECTED BY THE FOURTH AMENDMENT THAN THE SEARCH OF ONE'S
PERSON OR OF A BUILDING.  THIS COURT "HAS LONG DISTINGUISHED BETWEEN AN
AUTOMOBILE AND A HOME OR OFFICE."  CHAMBERS V. MARONEY, 399 U.S. 42, 48
(1970).  AS THE GOVERNMENT HAS DEMONSTRATED, AND AS THOSE IN THE
AFFECTED AREAS SURELY KNOW, IT IS THE AUTOMOBILE WHICH IN MOST CASES
MAKES EFFECTIVE THE ATTEMPTS TO SMUGGLE ALIENS INTO THIS COUNTRY. 

THE CONJUNCTION OF THESE FACTORS -- CONSISTENT JUDICIAL APPROVAL,
ABSENCE OF A REASONABLE ALTERNATIVE FOR THE SOLUTION OF A SERIOUS
PROBLEM, AND ONLY A MODEST INTRUSION ON THOSE WHOSE AUTOMOBILES ARE
SEARCHED -- PERSUADES ME THAT UNDER APPROPRIATE LIMITING CIRCUMSTANCES
THERE MAY EXIST A CONSTITUTIONALLY ADEQUATE EQUIVALENT OF PROBABLE
CAUSE TO CONDUCT ROVING VEHICULAR SEARCHES IN BORDER AREAS. 

        III 

THE CONCLUSION THAT THERE MAY BE PROBABLE CAUSE TO CONDUCT ROVING
SEARCHES DOES NOT END THE INQUIRY, FOR "EXCEPT IN CERTAIN CAREFULLY
DEFINED CLASSES OF CASES, A SEARCH OF PRIVATE PROPERTY WITHOUT PROPER
CONSENT IS 'UNREASONABLE' UNLESS IT HAS BEEN AUTHORIZED BY A VALID
SEARCH WARRANT." 

[[HC280'(ORIGINAL DOCUMENT PAGE 280)'  CAMARA V. MUNICIPAL COURT,
SUPRA, AT 528 - 529.  I EXPRESSED THE VIEW LAST TERM THAT THE WARRANT
CLAUSE REFLECTS AN IMPORTANT POLICY DETERMINATION: "THE FOURTH
AMENDMENT DOES NOT CONTEMPLATE THE EXECUTIVE OFFICERS OF GOVERNMENT AS
NEUTRAL AND DISINTERESTED MAGISTRATES.  THEIR DUTY AND RESPONSIBILITY
IS TO ENFORCE THE LAWS, TO INVESTIGATE, AND TO PROSECUTE.  . . . BUT
THOSE CHARGED WITH THIS INVESTIGATIVE AND PROSECUTORIAL DUTY SHOULD NOT
BE THE SOLE JUDGES OF WHEN TO UTILIZE CONSTITUTIONALLY SENSITIVE MEANS
IN PURSUING THEIR TASKS."  UNITED STATES V. UNITED STATES DISTRICT
COURT, 407 U.S. 297, 317 (1972).  SEE ALSO COOLIDGE V. NEW HAMPSHIRE,
403 U.S. 443, 481 (1971); CHIMEL V. CALIFORNIA, 395 U.S. 752, 763 - 764
(1969). 

TO JUSTIFY WARRANTLESS SEARCHES IN CIRCUMSTANCES LIKE THOSE
PRESENTED IN THIS CASE, THE GOVERNMENT RELIES UPON SEVERAL OF THIS
COURT'S DECISIONS RECOGNIZING EXCEPTIONS TO THE WARRANT REQUIREMENT.  A
BRIEF REVIEW OF THE NATURE OF EACH OF THESE MAJOR EXCEPTIONS
ILLUMINATES THE RELEVANT CONSIDERATIONS IN THE PRESENT CASE.  IN TERRY
V. OHIO, 392 U.S. 1 (1968), THE COURT HELD THAT A POLICEMAN MAY CONDUCT
A LIMITED "PAT DOWN" SEARCH FOR WEAPONS WHEN HE HAS REASONABLE GROUNDS
FOR BELIEVING THAT CRIMINAL CONDUCT HAS TAKEN OR IS TAKING PLACE AND
THAT THE PERSON HE SEARCHES IS ARMED AND DANGEROUS.  "THE SOLE
JUSTIFICATION (FOR SUCH A) SEARCH . . . IS THE PROTECTION OF THE POLICE
OFFICER AND OTHERS NEARBY . . ."  ID., AT 29.  NOTHING IN TERRY
SUPPORTS AN EXCEPTION TO THE WARRANT REQUIREMENT HERE. 

COLONNADE CATERING CORP. V. UNITED STATES, 397 U.S. 72 (1970), AND
UNITED STATES V. BISWELL, 406 U.S. 311 (1972), ON WHICH THE GOVERNMENT
ALSO RELIES, BOTH CONCERNED THE STANDARDS WHICH GOVERN INSPECTIONS OF
THE BUSINESS PREMISES OF THOSE WITH FEDERAL LICENSES TO ENGAGE IN THE
SALE OF LIQUOR, COLONNADE, OR THE SALE OF GUNS, BISWELL. 

[[HC281'(ORIGINAL DOCUMENT PAGE 281)'  IN THOSE CASES, CONGRESS WAS
HELD TO HAVE POWER TO AUTHORIZE WARRANTLESS SEARCHES.  AS THE COURT
STATED IN BISWELL: 

"WHEN A DEALER CHOOSES TO ENGAGE IN THIS PERVASIVELY REGULATED
BUSINESS AND TO ACCEPT A FEDERAL LICENSE, HE DOES SO WITH THE KNOWLEDGE
THAT HIS BUSINESS RECORDS, FIREARMS, AND AMMUNITION WILL BE SUBJECT TO
EFFECTIVE INSPECTION."  406 U.S., AT 316. 

COLONNADE AND BISWELL CANNOT FAIRLY BE READ TO COVER CASES OF THE
PRESENT TYPE.  ONE WHO MERELY TRAVELS IN REGIONS NEAR THE BORDERS OF
THE COUNTRY CAN HARDLY BE THOUGHT TO HAVE SUBMITTED TO INSPECTIONS IN
EXCHANGE FOR A SPECIAL PERQUISITE. 

MORE CLOSELY IN POINT ON THEIR FACTS ARE THE CASES INVOLVING
AUTOMOBILE SEARCHES.  E. G., CARROLL V. UNITED STATES, 267 U.S. 132
(1925); CHAMBERS V. MARONEY, SUPRA; COOLIDGE V. NEW HAMPSHIRE, SUPRA.
BUT WHILE THOSE CASES ALLOW AUTOMOBILES TO BE SEARCHED WITHOUT A
WARRANT IN CERTAIN CIRCUMSTANCES, THE PRINCIPAL RATIONALE FOR THIS
EXCEPTION TO THE WARRANT CLAUSE IS THAT UNDER THOSE CIRCUMSTANCES "IT
IS NOT PRACTICABLE TO SECURE A WARRANT BECAUSE THE VEHICLE CAN BE
QUICKLY MOVED OUT OF THE LOCALITY OR JURISDICTION IN WHICH THE WARRANT
MUST BE SOUGHT."  CARROLL V. UNITED STATES, SUPRA, AT 153.  THE COURT
TODAY CORRECTLY POINTS OUT THAT A WARRANTLESS SEARCH UNDER THE CARROLL
LINE OF CASES MUST BE SUPPORTED BY PROBABLE CAUSE IN THE SENSE OF
SPECIFIC KNOWLEDGE ABOUT A PARTICULAR AUTOMOBILE.  WHILE, AS INDICATED
ABOVE, MY VIEW IS THAT ON APPROPRIATE FACTS THE GOVERNMENT CAN SATISFY
THE PROBABLE CAUSE REQUIREMENT FOR A ROVING SEARCH IN A BORDER AREA
WITHOUT POSSESSING INFORMATION ABOUT PARTICULAR AUTOMOBILES, IT DOES
NOT FOLLOW THAT THE WARRANT REQUIREMENT IS INAPPOSITE.  THE VERY FACT
THAT THE GOVERNMENT'S SUPPORTING INFORMATION RELATES TO CRIMINAL
ACTIVITY IN CERTAIN AREAS RATHER THAN TO EVIDENCE ABOUT A PARTICULAR
AUTOMOBILE RENDERS IRRELEVANT THE JUSTIFICATION FOR WARRANTLESS
SEARCHES RELIED UPON IN CARROLL AND ITS PROGENY.     [[HC282'(ORIGINAL
DOCUMENT PAGE 282)'  QUITE SIMPLY, THE ROVING SEARCHES ARE JUSTIFIED BY
EXPERIENCE WITH OBVIOUSLY NON-MOBILE SECTIONS OF A PARTICULAR ROAD OR
AREA EMBRACING SEVERAL ROADS. 

NONE OF THE FOREGOING EXCEPTIONS TO THE WARRANT REQUIREMENT, THEN,
APPLIES TO ROVING AUTOMOBILE SEARCHES IN BORDER AREAS.  MOREOVER, THE
PROPRIETY OF THE WARRANT PROCEDURE HERE IS AFFIRMATIVELY ESTABLISHED BY
CAMARA.  SEE ALSO SEE V. CITY OF SEATTLE, 387 U.S. 541 (1967).  FOR THE
REASONS OUTLINED ABOVE, THE COURT THERE RULED THAT PROBABLE CAUSE COULD
BE SHOWN FOR AN AREA SEARCH, BUT NONETHELESS REQUIRED THAT A WARRANT BE
OBTAINED FOR UNCONSENTED SEARCHES.  THE COURT INDICATED ITS GENERAL
APPROACH TO EXCEPTIONS TO THE WARRANT REQUIREMENT: 

"IN ASSESSING WHETHER THE PUBLIC INTEREST DEMANDS CREATION OF A
GENERAL EXCEPTION TO THE FOURTH AMENDMENT'S WARRANT REQUIREMENT, THE
QUESTION IS NOT WHETHER THE PUBLIC INTEREST JUSTIFIES THE TYPE OF
SEARCH IN QUESTION, BUT WHETHER THE AUTHORITY TO SEARCH SHOULD BE
EVIDENCED BY A WARRANT, WHICH IN TURN DEPENDS IN PART UPON WHETHER THE
BURDEN OF OBTAINING A WARRANT IS LIKELY TO FRUSTRATE THE GOVERNMENTAL
PURPOSE BEHIND THE SEARCH."  CAMARA V. MUNICIPAL COURT, SUPRA, AT 533. 

SEE ALSO UNITED STATES V. UNITED STATES DISTRICT COURT, SUPRA, AT
315. 

THE GOVERNMENT ARGUES THAT CAMARA AND SEE ARE DISTINGUISHABLE FROM
THE PRESENT CASE FOR THE PURPOSES OF THE WARRANT REQUIREMENT.  IT IS
TRUE THAT WHILE A BUILDING INSPECTOR WHO IS REFUSED ADMISSION TO A
BUILDING MAY EASILY OBTAIN A WARRANT TO SEARCH THAT BUILDING, A MEMBER
OF THE BORDER PATROL HAS NO SUCH OPPORTUNITY WHEN HE IS REFUSED
PERMISSION TO INSPECT AN AUTOMOBILE. 

[[HC283'(ORIGINAL DOCUMENT PAGE 283)'  IT IS ALSO TRUE THAT THE
JUDICIAL FUNCTION ENVISIONED IN CAMARA DID NOT EXTEND TO
RECONSIDERATION OF "THE BASIC AGENCY DECISION TO CANVASS AN AREA,"
CAMARA V. MUNICIPAL COURT, SUPRA, AT 532, WHILE THE JUDICIAL FUNCTION
HERE WOULD NECESSARILY INCLUDE PASSING ON JUST SUCH A BASIC DECISION. 

BUT IT DOES NOT FOLLOW FROM THESE DISTINCTIONS THAT "NO WARRANT
SYSTEM CAN BE CONSTRUCTED THAT WOULD BE FEASIBLE AND MEANINGFUL." 
BRIEF FOR THE UNITED STATES 36.  NOTHING IN THE PAPERS BEFORE US
DEMONSTRATES THAT IT WOULD NOT BE FEASIBLE FOR THE BORDER PATROL TO
OBTAIN ADVANCE JUDICIAL APPROVAL OF THE DECISION TO CONDUCT ROVING
SEARCHES ON A PARTICULAR ROAD OR ROADS FOR A REASONABLE PERIOD OF
TIME.  /3/  ACCORDING TO THE GOVERNMENT, THE INCIDENCE OF ILLEGAL
TRANSPORTATION OF ALIENS ON CERTAIN ROADS IS PREDICTABLE, AND THE
ROVING SEARCHES ARE APPARENTLY PLANNED IN ADVANCE OR CARRIED OUT
ACCORDING TO A PREDETERMINED SCHEDULE.  THE USE OF AN AREA WARRANT
PROCEDURE WOULD SURELY NOT "FRUSTRATE THE GOVERNMENTAL PURPOSE BEHIND
THE SEARCH."  CAMARA V. MUNICIPAL COURT, SUPRA, AT 533.  IT WOULD OF
COURSE ENTAIL SOME INCONVENIENCE, BUT INCONVENIENCE ALONE HAS NEVER
BEEN THOUGHT TO BE AN ADEQUATE REASON FOR ABROGATING THE WARRANT
REQUIREMENT.  E. G., UNITED STATES V. UNITED STATES DISTRICT COURT,
SUPRA, AT 321. 

ALTHOUGH STANDARDS FOR PROBABLE CAUSE IN THE CONTEXT OF THIS CASE
ARE RELATIVELY UNSTRUCTURED (CF. ID., AT 322), THERE ARE A NUMBER OF
RELEVANT FACTORS WHICH WOULD MERIT CONSIDERATION:  THEY INCLUDE (I) THE
FREQUENCY WITH WHICH ALIENS ILLEGALLY IN THE COUNTRY ARE KNOWN OR
REASONABLE BELIEVED TO BE TRANSPORTED WITHIN A PARTICULAR AREA; (II)
THE PROXIMITY OF THE AREA IN QUESTION TO THE BORDER; (III) THE
EXTENSIVENESS AND GEOGRAPHIC CHARACTERISTICS OF THE AREA, INCLUDING THE
ROADS THEREIN AND THE EXTENT OF THEIR USE, /4/  AND (IV) THE PROBABLE
DEGREE OF INTERFERENCE WITH THE RIGHTS OF INNOCENT PERSONS, TAKING INTO
ACCOUNT THE SCOPE OF THE PROPOSED SEARCH, ITS DURATION, AND THE
CONCENTRATION OF ILLEGAL ALIEN TRAFFIC IN RELATION TO THE GENERAL
TRAFFIC OF THE ROAD OR AREA. 

[[HC284'(ORIGINAL DOCUMENT PAGE 284)' 

IN SHORT, THE DETERMINATION OF WHETHER A WARRANT SHOULD BE ISSUED
FOR AN AREA SEARCH INVOLVES A BALANCING OF THE LEGITIMATE INTERESTS OF
LAW ENFORCEMENT WITH PROTECTED FOURTH AMENDMENT RIGHTS.  THIS PRESENTS
THE TYPE OF DELICATE QUESTION OF CONSTITUTIONAL JUDGMENT WHICH OUGHT TO
BE RESOLVED BY THE JUDICIARY RATHER THAN THE EXECUTIVE.  IN THE WORDS
OF CAMARA, 

"THIS IS PRECISELY THE DISCRETION TO INVADE PRIVATE PROPERTY WHICH
WE HAVE CONSISTENTLY CIRCUMSCRIBED BY A REQUIREMENT THAT A
DISINTERESTED PARTY WARRANT THE NEED TO SEARCH."  387 U.S., AT 532 -
533. 

NOR DOES THE NOVELTY OF THE PROBLEM POSED BY ROVING SEARCHES IN
BORDER AREAS UNDERMINE THE IMPORTANCE OF A PRIOR JUDICIAL
DETERMINATION.  WHEN FACED WITH A SIMILARLY UNCONVENTIONAL PROBLEM LAST
TERM IN UNITED STATES DISTRICT COURT, SUPRA, WE RECOGNIZED THAT THE
FOCUS OF THE SEARCH THERE INVOLVED WAS "LESS PRECISE THAN THAT DIRECTED
AGAINST MORE CONVENTIONAL TYPES OF CRIME," AND THAT "(DIFFERENT
STANDARDS MAY BE COMPATIBLE WITH THE FOURTH AMENDMENT IF THEY ARE
REASONABLE BOTH IN RELATION TO THE LEGITIMATE NEED OF GOVERNMENT . . .
AND THE PROTECTED RIGHTS OF OUR CITIZENS."  407 U.S., AT 322 - 323. 

[[HC285'(ORIGINAL DOCUMENT PAGE 285)'  YET WE REFUSED TO ABANDON THE
FOURTH AMENDMENT COMMITMENT TO THE USE OF SEARCH WARRANTS WHENEVER THIS
IS FEASIBLE WITH DUE REGARD TO THE INTERESTS AFFECTED. 

FOR THE REASONS STATED ABOVE, I THINK A RATIONAL SEARCH WARRANT
PROCEDURE IS FEASIBLE IN CASES OF THIS KIND.  AS NO WARRANT WAS
OBTAINED HERE, I AGREE THAT THE JUDGMENT MUST BE REVERSED.  I EXPRESS
NO OPINION AS TO WHETHER THERE WAS PROBABLE CAUSE TO ISSUE A WARRANT ON
THE FACTS OF THIS PARTICULAR CASE. 

[[DFN 

/1/  I AM IN ACCORD WITH THE COURT'S CONCLUSION THAT NOTHING IN SEC.
287 (A) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SEC. 1357
(A) (3), OR IN 8 CFR SEC. 287.1 SERVES TO AUTHORIZE AN OTHERWISE
UNCONSTITUTIONAL SEARCH. 

/2/  THE SOLICITOR GENERAL'S BRIEF IN THIS COURT STATES EXPLICITLY
THAT "WE . . . DO NOT TAKE THE POSITION THAT THE CHECKING OPERATIONS
ARE JUSTIFIED BECAUSE THE OFFICERS HAVE PROBABLE CAUSE OR EVEN
'REASONABLE SUSPICION' TO BELIEVE, WITH RESPECT TO EACH VEHICLE
CHECKED, THAT IT CONTAINS AN ILLEGAL ALIEN.  APART FROM THE
REASONABLENESS OF ESTABLISHMENT OF THE CHECKING OPERATION IN THIS CASE,
THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE BORDER PATROL
OFFICERS HAD ANY SPECIAL OR PARTICULAR REASON TO STOP PETITIONER AND
EXAMINE HIS CAR."  BRIEF FOR THE UNITED STATES 9 - 10. 

/3/  THERE IS NO REASON WHY A JUDICIAL OFFICER COULD NOT APPROVE
WHERE APPROPRIATE A SERIES OF ROVING SEARCHES OVER THE COURSE OF
SEVERAL DAYS OR WEEKS.  EXPERIENCE WITH AN INITIAL SEARCH OR SERIES OF
SEARCHES WOULD BE HIGHLY RELEVANT IN CONSIDERING APPLICATIONS FOR
RENEWAL OF A WARRANT. 

/4/  DEPENDING UPON THE CIRCUMSTANCES, THERE MAY BE PROBABLE CAUSE
FOR THE SEARCH TO BE AUTHORIZED ONLY FOR A DESIGNATED PORTION OF A
PARTICULAR ROAD OR SUCH CAUSE MAY EXIST FOR A DESIGNATED AREA WHICH MAY
CONTAIN ONE OR MORE ROADS OR TRACKS.  PARTICULARLY ALONG MUCH OF THE
MEXICAN BORDER, THERE ARE VAST AREAS OF UNINHABITED DESERT AND ARID
LAND WHICH ARE TRAVERSED BY FEW, IF ANY, MAIN ROADS OR HIGHWAYS, BUT
WHICH NEVERTHELESS MAY AFFORD OPPORTUNITIES -- BY VIRTUE OF THEIR
ISOLATED CHARACTER -- FOR THE SMUGGLING OF ALIENS. 

[[DOP 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

TRIAL AND CONVICTION IN THIS CASE WERE IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA UNDER AN INDICTMENT
CHARGING THAT PETITIONER, CONTRARY TO 21 U.S.C. ^ 176A (1964 ED.), HAD
KNOWLINGLY RECEIVED, CONCEALED AND FACILITATED THE TRANSPORATION OF
APPROXIMATELY 161 POUNDS OF ILLEGALLY IMPORTED MARIHUANA.  HE WAS
SENTENCED TO FIVE YEARS' IMPRISONMENT.  HE APPEALED ON THE SOLE GROUND
THAT THE DISTRICT COURT HAD ERRONEOUSLY DENIED HIS MOTION TO SUPPRESS
MARIHUANA ALLEGEDLY SEIZED FROM HIS AUTOMOBILE IN VIOLATION OF THE
FOURTH AMENDMENT. 

THE MOTION TO SUPPRESS WAS HEARD ON STIPULATED EVIDENCE IN THE
DISTRICT COURT.  /1/  UNITED STATES BORDER PATROL OFFICERS SHAW AND
CARRASCO STOPPED PETITIONER'S CAR SHORTLY AFTER MIDNIGHT AS IT WAS
TRAVELING FROM CALEXICO, ON THE CALIFORNIA-MEXICO BORDER, TOWARDS
BLYTHE, CALIFORNIA. 

[[HC286'(ORIGINAL DOCUMENT PAGE 286)'  THE STOP WAS MADE ON HIGHWAY
78 NEAR GLAMIS, CALIFORNIA, 50 MILES BY ROAD FROM CALEXICO.  THE
HIGHWAY WAS "ABOUT THE ONLY NORTH-SOUTH ROAD IN CALIFORNIA COMING FROM
THE MEXICAN BORDER THAT DOES NOT HAVE AN ESTABLISHED CHECKPOINT."  /2/
BECAUSE OF THAT, "IT IS COMMONLY USED TO EVADE CHECK POINTS BY BOTH
MARIHUANA AND ALIEN SMUGGLERS."  ON OCCASIONS "BUT NOT AT ALL TIMES,"
OFFICERS OF THE BORDER PATROL "MAINTAIN A ROVING CHECK OF VEHICLES AND
PERSONS ON THAT PARTICULAR HIGHWAY."  PURSUANT TO THIS PRACTICE "THEY
STOPPED THIS VEHICLE FOR THE SPECIFIC PURPOSE OF CHECKING FOR ALIENS." 
PETITIONER'S IDENTIFICATION REVEALED THAT HE WAS A RESIDENT OF
MEXICALI, MEXICO, BUT THAT HE HELD A WORK PERMIT FOR THE UNITED
STATES.  PETITIONER HAD COME FROM MEXICALI, HAD PICKED UP THE CAR IN
CALEXICO AND WAS ON HIS WAY TO BLYTHE TO DELIVER IT.  HE INTENDED TO
RETURN TO MEXICALI BY BUS.  /3/  THE OFFICERS HAD BEEN ADVISED BY AN
OFFICIAL BULLETIN THAT ALIENS ILLEGALLY ENTERING THE UNITED STATES
SOMETIMES CONCEALED THEMSELVES BY SITTING UPRIGHT BEHIND THE BACK SEAT
FROM WHICH THE SPRINGS HAD BEEN REMOVED.  WHILE LOOKING UNDER THE REAR
SEAT OF PETITIONER'S CAR FOR ALIENS, THE OFFICERS DISCOVERED PACKAGES
BELIEVED BY THEM TO CONTAIN MARIHUANA.  PETITIONER WAS PLACED UNDER
ARREST AND ADVISED OF HIS RIGHTS.  HIS CAR WAS THEN SEARCHED FOR
ADDITIONAL MARIHUANA, WHICH WAS FOUND IN SUBSTANTIAL AMOUNTS. 

ON THIS EVIDENCE, THE MOTION TO SUPPRESS WAS DENIED, AND PETITIONER
WAS CONVICTED. 

[[HC287'(ORIGINAL DOCUMENT PAGE 287)'  A DIVIDED COURT OF APPEALS
AFFIRMED, 452 F.2D 459 (CA9 1971), RELYING ON ITS PRIOR CASES AND ON
SEC. 287 (A) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SEC.
1357 (A) (3) WHICH PROVIDES THAT OFFICERS OF THE IMMIGRATION AND
NATURALIZATION SERVICE SHALL HAVE THE POWER, WITHOUT WARRANT, TO SEARCH
ANY VEHICLE FOR ALIENS WITHIN A REASONABLE DISTANCE FROM ANY EXTERNAL
BOUNDARY OF THE UNITED STATES.  /4/  I DISSENT FROM THE REVERSAL OF
THIS JUDGMENT. 

        I 

THE FOURTH AMENDMENT PROTECTS THE PEOPLE "IN THIER PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES" AND
ALSO PROVIDES THAT "NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE .
. . ."  THE ORDINARY RULE IS THAT TO BE REASONABLE UNDER THE AMENDMENT
A SEARCH MUST BE AUTHORIZED BY WARRANT ISSUED BY A MAGISTRATE UPON A
SHOWING OF PROBABLE CAUSE.  THE AMENDMENT'S OVERRIDING PROHIBITION IS
NEVERTHELESS AGAINST "UNREASONABLE"  SEARCHES AND SEIZURES; AND THE
LEGALITY OF SEARCHING, WITHOUT WARRANT AND WITHOUT PROBABLE CAUSE,
INDIVIDUALS AND CONVEYANCES SEEKING TO ENTER THE COUNTRY HAS BEEN
RECOGNIZED BY CONGRESS AND THE COURTS SINCE THE VERY BEGINNING. 

[[HC288'(ORIGINAL DOCUMENT PAGE 288)'  BOYD V. UNITED STATES, 116
U.S. 616 (1886), SAID AS MUCH; AND IN CARROLL V. UNITED STATES, 267
U.S. 132, 154 (1925), THE COURT REPEATED THAT NEITHER WARRANT NOR
PROBABLE CAUSE WAS REQUIRED TO AUTHORIZE A STOP AND SEARCH AT THE
EXTERNAL BOUNDARIES OF THE UNITED STATES:  "TRAVELERS MAY BE SO STOPPED
IN CROSSING AN INTERNATIONAL BOUNDARY BECAUSE OF NATIONAL SELF
PROTECTION REASONABLY REQUIRING ONE ENTERING THE COUNTRY TO IDENTIFY
HIMSELF AS ENTITLED TO COME IN, AND HIS BELONGINGS AS EFFECTS WHICH MAY
BE LAWFULLY BROUGHT IN."  THIS MUCH IS UNDISPUTED IN THIS CASE. 
PERSONS AND THEIR EFFECTS MAY BE SEARCHED AT THE BORDER FOR DUTIABLE
ARTICLES OR CONTRABAND.  CONVEYANCES MAY BE SEARCHED FOR THE SAME
PURPOSES, AS WELL AS TO DETERMINE WHETHER THEY CARRY ALIENS NOT
ENTITLED TO ENTER THE COUNTRY.  NEITHER, APPARENTLY, IS IT DISPUTED
THAT WARRANTLESS SEARCHES FOR ALIENS WITHOUT PROBABLE CAUSE MAY BE MADE
AT FIXED CHECKPOINTS AWAY FROM THE BORDER. 

THE PROBLEM IN THIS CASE CENTERS ON THE ROVING PATROL OPERATING AWAY
FROM, BUT NEAR, THE BORDER.  THESE PATROLS MAY SEARCH FOR ALIENS
WITHOUT A WARRANT IF THERE IS PROBABLE CAUSE TO BELIEVE THAT THE
VEHICLE SEARCHED IS CARRYING ALIENS ILLEGALLY INTO THE COUNTRY.  BUT
WITHOUT PROBABLE CAUSE, THE MAJORITY HOLDS THE SEARCH UNREASONABLE,
ALTHOUGH AT LEAST ONE JUSTICE, MR. JUSTICE POWELL, WOULD UPHOLD
SEARCHES BY ROVING PATROLS IF AUTHORIZED BY AN AREA WARRANT ISSUED ON
LESS THAN PROBABLE CAUSE IN THE TRADITIONAL SENSE.  I AGREE WITH MR.
JUSTICE POWELL THAT SUCH A WARRANT SO ISSUED WOULD SATISFY THE FOURTH
AMENDMENT, AND I WOULD EXPECT SUCH WARRANTS WOULD BE READILY ISSUED. 
BUT I DISAGREE WITH HIM AND THE MAJORITY THAT EITHER WARRANT OR
PROBABLE CAUSE IS REQUIRED IN THE CIRCUMSTANCES OF THIS CASE. 

[[HC289'(ORIGINAL DOCUMENT PAGE 289)'  AS THE COURT HAS REAFFIRMED
TODAY IN CADY V. DOMBROWSKI, POST, P. 433, THE GOVERNING STANDARD UNDER
THE FOURTH AMENDMENT IS REASONABLENESS, AND IN MY VIEW, THAT STANDARD
IS SUFFICIENTLY FLEXIBLE TO AUTHORIZE THE SEARCH INVOLVED IN THIS
CASE. 

IN TERRY V. OHIO, 392 U.S. 1 (1968), THE COURT PROCEEDING UNDER THE
"GENERAL PROSCRIPTION AGAINST UNREASONABLE SEARCHES AND SEIZURES,"
ID., AT 20 (FOOTNOTE OMITTED), WEIGHED THE GOVERNMENTAL INTEREST
CLAIMED TO JUSTIFY THE OFFICIAL INTRUSION AGAINST THE CONSTITUTIONALLY
PROTECTED INTEREST OF THE PRIVATE CITIZEN.  ID., AT 20 - 21.  THE
"'NEED TO SEARCH'" WAS BALANCED "'AGAINST THE INVASION WHICH THE SEARCH
. . . ENTAILS,'" QUOTING FROM CAMARA V. MUNICIPAL COURT, 387 U.S. 523,
534 - 535, 536 - 537 (1967).  TERRY, SUPRA, AT 21.  IN ANY EVENT, AS
PUT BY MR. CHIEF JUSTICE WARREN, THE "QUESTION IS WHETHER IN ALL THE
CIRCUMSTANCES OF THIS ON-THE-STREET ENCOUNTER, HIS RIGHT TO PERSONAL
SECURITY WAS VIOLATED BY AN UNREASONABLE SEARCH AND SEIZURE."  ID., AT
9 (EMPHASIS ADDED).     WARRANTLESS BUT PROBABLE-CAUSE SEARCHES OF THE
PERSON AND IMMEDIATE SURROUNDINGS HAVE BEEN DEEMED REASONABLE WHEN
INCIDENT TO ARREST, SEE CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969); AND
IN TERRY, THE STOP OF A SUSPECTED INDIVIDUAL AND A PAT-DOWN FOR WEAPONS
WITHOUT A WARRANT WERE THOUGHT REASONABLE ON LESS THAN TRADITIONAL
PROBABLE CAUSE.  IN CAMARA V. MUNICIPAL COURT, SUPRA, AN INSPECTION OF
EVERY STRUCTURE IN AN ENTIRE AREA TO ENFORCE THE BUILDING CODES WAS
DEEMED REASONABLE UNDER THE FOURTH AMENDMENT WITHOUT PROBABLE CAUSE, OR
SUSPICION THAT ANY PARTICULAR HOUSE OR STRUCTURE WAS IN VIOLATION OF
LAW, ALTHOUGH A WARRANT, ISSUABLE WITHOUT PROBABLE CAUSE, OR REASONABLE
SUSPICION OF A VIOLATION, WAS REQUIRED WITH RESPECT TO NONCONSENTING
PROPERTY OWNERS.  ALSO, IN COLONNADE CATERING CORP. V. UNITED STATES,
397 U.S. 72 (1970), MR. JUSTICE DOUGLAS, WRITING FOR THE COURT AND
RECOGNIZING THAT THE FOURTH AMENDMENT BARS ONLY UNREASONABLE SEARCHES
AND SEIZURES, RULED THAT THE HISTORIC POWER OF THE GOVERNMENT TO
CONTROL THE LIQUOR TRAFFIC AUTHORIZED WARRANTLESS INSPECTIONS OF
LICENSED PREMISES WITHOUT PROBABLE CAUSE, OR REASONABLE SUSPICION, NOT
TO CHECK ON LIQUOR QUALITY OR CONDITIONS UNDER WHICH IT WAS SOLD, BUT
SOLELY TO ENFORCE THE COLLECTION OF THE FEDERAL EXCISE TAX.  /5/ 

[[HC290'(ORIGINAL DOCUMENT PAGE 290)'  UNITED STATES V. BISWELL, 406
U.S. 311 (1972), INVOLVED THE GUN CONTROL ACT OF 1968 AND ITS
AUTHORIZATION TO FEDERAL OFFICERS TO INSPECT FIREARMS DEALERS.  THE
PUBLIC NEED TO ENFORCE AN IMPORTANT REGULATORY PROGRAM WAS HELD TO
JUSTIFY RANDOM INSPECTIONS OF LICENSED ESTABLISHMENTS WITHOUT WARRANT
AND PROBABLE CAUSE. 

THE COURT HAS BEEN PARTICULARLY SENSITIVE TO THE AMENDMENT'S BROAD
STANDARD OF "REASONABLENESS" WHERE, AS IN BISWELL AND COLONNADE,
AUTHORIZING STATUTES PERMITTED THE CHALLENGED SEARCHES.  WE NOTED IN
COLONNADE THAT "CONGRESS HAS BROAD POWER TO DESIGN SUCH POWERS OF
INSPECTION UNDER THE LIQUOR LAWS AS IT DEEMS NECESSARY TO MEET THE
EVILS AT HAND," 397 U.S., AT 76; AND IN BISWELL WE RELIED HEAVILY UPON
THE CONGRESSIONAL JUDGMENT THAT THE AUTHORIZED INSPECTION PROCEDURES
PLAYED AN IMPORTANT PART IN THE REGULATORY SYSTEM. 

[[HC291'(ORIGINAL DOCUMENT PAGE 291)'  406 U.S., AT 315 - 317.  IN
THE CASE BEFORE US, 8 U.S.C. ^ 1357 (A) (3), AUTHORIZES BORDER PATROL
OFFICERS, WITHOUT WARRANT, TO SEARCH ANY VEHICLE FOR ALIENS "WITHIN A
REASONABLE DISTANCE FROM ANY EXTERNAL BOUNDARY OF THE UNITED STATES"
AND WITHIN THE DISTANCE OF 25 MILES FROM SUCH EXTERNAL BOUNDARY TO HAVE
ACCESS TO PRIVATE LANDS, BUT NOT DWELLINGS "FOR THE PURPOSE OF
PATROLLING THE BORDER TO PREVENT THE ILLEGAL ENTRY OF ALIENS INTO THE
UNITED STATES . . ."  AT THE VERY LEAST, THIS STATUTE REPRESENTS THE
CONSIDERED JUDGMENT OF CONGRESS THAT PROPER ENFORCEMENT OF THE
IMMIGRATION LAWS REQUIRES RANDOM SEARCHES OF VEHICLES WITHOUT WARRANT
OR PROBABLE CAUSE WITHIN A REASONABLE DISTANCE OF THE INTERNATIONAL
BORDERS OF THE COUNTRY. 

IT IS TRUE THAT "(UNTIL 1875 ALIEN MIGRATION TO THE UNITED STATES
WAS UNRESTRICTED."  KLEINDIENST V. MANDEL, 408 U.S. 753, 761 (1972). 
BUT THE POWER OF THE NATIONAL GOVERNMENT TO EXCLUDE ALIENS FROM THE
COUNTRY IS UNDOUBTED AND SWEEPING.  "THAT THE GOVERNMENT OF THE UNITED
STATES, THROUGH THE ACTION OF THE LEGISLATIVE DEPARTMENT, CAN EXCLUDE
ALIENS FROM ITS TERRITORY IS A PROPOSITION WHICH WE DO NOT THINK OPEN
TO CONTROVERSY.  JURISDICTION OVER ITS OWN TERRITORY TO THAT EXTENT IS
AN INCIDENT OF EVERY INDEPENDENT NATION.  IT IS A PART OF ITS
INDEPENDENCE.  IF IT COULD NOT EXCLUDE ALIENS, IT WOULD BE TO THAT
EXTENT SUBJECT TO THE CONTROL OF ANOTHER POWER."  CHAE CHAN PING V.
UNITED STATES, 130 U.S. 581, 603 - 604 (1889).  "THE POWER OF CONGRESS
TO EXCLUDE ALIENS ALTOGETHER FROM THE UNITED STATES, OR TO PRESCRIBE
THE TERMS AND CONDITIONS UPON WHICH THEY MAY COME TO THIS COUNTRY, AND
TO HAVE ITS DECLARED POLICY IN THAT REGARD ENFORCED EXCLUSIVELY . . .
IS SETTLED BY OUR PREVIOUS ADJUDICATIONS." 

[[HC292'(ORIGINAL DOCUMENT PAGE 292)'  LEM MOON SING V. UNITED
STATES, 158 U.S. 538, 547 (1895).  SEE ALSO FONG YUE TING V. UNITED
STATES, 149 U.S. 698, 711 (1893); YAMATAYA V. FISHER, 189 U.S. 86, 97 -
99 (1903); UNITED STATES EX REL. TURNER V. WILLIAMS, 194 U.S. 279, 289
290 (1904); OCEANIC STEAM NAVIGATION CO. V. STRANAHAN, 214 U.S. 320,
335 - 336 (1909); UNITED STATES EX REL. VOLPE V. SMITH, 289 U.S. 422,
425 (1933). 

SINCE 1875, CONGRESS HAS GIVEN "ALMOST CONTINUOUS ATTENTION . . . TO
THE PROBLEMS OF IMMIGRATION AND OF EXCLUDABILITY OF CERTAIN DEFINED
CLASSES OF ALIENS.  THE PATTERN GENERALLY HAS BEEN ONE OF INCREASING
CONTROL . . . ."  KLEINDIENST V. MANDEL, SUPRA, AT 761 - 762.  IT WAS
ONLY AS THE ILLEGAL ENTRY OF ALIENS MULTIPLIED THAT CONGRESS ADDRESSED
ITSELF TO ENFORCEMENT MECHANISMS.  IN 1917, IMMIGRATION AUTHORITIES
WERE AUTHORIZED TO BAORD AND SEARCH ALL CONVEYANCES BY WHICH ALIENS
WERE BEING BROUGHT INTO THE UNITED STATES.  ACT OF FEB. 5, 1917, ^ 16,
39 STAT. 886.  THIS BASIC AUTHORITY, SUBSTANTIALLY UNCHANGED, IS
INCORPORATED IN 8 U.S.C. ^ 1225 (A). 

IN 1946, IT WAS REPRESENTED TO CONGRESS THAT "(IN THE ENFORCEMENT OF
THE IMMIGRATION LAWS IT IS AT TIMES DESIRABLE TO STOP AND SEARCH
VEHICLES WITHIN A REASONABLE DISTANCE FROM THE BOUNDARIES OF THE UNITED
STATES AND THE LEGAL RIGHT TO DO SO SHOULD BE CONFERRED BY LAW."  H. R.
REP. NO. 186, 79TH CONG., 1ST SESS., 2 (1945).  THE HOUSE COMMITTEE ON
IMMIGRATION AND NATURALIZATION WAS "OF THE OPINION THAT THE LEGISLATION
IS HIGHLY DESIRABLE," IBID., AND ITS COUNTERPART IN THE SENATE, S. REP.
NO. 632, 79TH CONG., 1ST SESS., 2 (1945), STATED THAT "(THERE IS NO
QUESTION BUT THAT THIS IS A STEP IN THE RIGHT DIRECTION."  THE RESULT
WAS EXPRESS STATUTORY AUTHORITY, ACT OF AUG. 7, 1946, 60 STAT. 865, TO
CONDUCT SEARCHES OF VEHICLES FOR ALIENS WITHIN A REASONABLE DISTANCE
FROM THE BORDER WITHOUT WARRANT OR POSSIBLE CAUSE.  MOREOVER, IN THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163, CONGRESS
PERMITTED THE ENTRY ONTO PRIVATE LANDS, EXCLUDING DWELLINGS, WITHIN A
DISTANCE OF 25 MILES FROM ANY EXTERNAL BOUNDARIES OF THE COUNTRY "FOR
THE PURPOSE OF PATROLLING THE BORDER TO PREVENT THE ILLEGAL ENTRY OF
ALIENS INTO THE UNITED STATES . . . ."  ^ 287 (A) (3), 66 STAT. 233. 

[[HC293'(ORIGINAL DOCUMENT PAGE 293)' 

THE JUDGMENT OF CONGRESS OBVIOUSLY WAS THAT THERE ARE CIRCUMSTANCES
IN WHICH IT IS REASONABLY NECESSARY, IN THE ENFORCEMENT OF THE
IMMIGRATION LAWS, TO SEARCH VEHICLES AND OTHER PRIVATE PROPERTY FOR
ALIENS, WITHOUT WARRANT OR PROBABLE CAUSE, AND AT LOCATIONS OTHER THAN
AT THE BORDER.  TO DISAGREE WITH THIS LEGISLATIVE JUDGMENT IS TO
INVALIDATE 8 U.S.C. SEC. 1357 (A) (3) IN THE FACE OF THE CONTRARY
OPINION OF CONGRESS THAT ITS LEGISLATION COMPORTED WITH THE STANDARD OF
REASONABLENESS OF THE FOURTH AMENDMENT.  THIS I AM QUITE UNWILLING TO
DO. 

THE EXTERNAL BOUNDARIES OF THE UNITED STATES ARE EXTENSIVE.  THE
CANADIAN BORDER IS ALMOST 4,000 MILES IN LENGTH; THE MEXICAN, ALMOST
2,000.  SURVEILLANCE IS MAINTAINED OVER THE ESTABLISHED CHANNELS AND
ROUTES OF COMMUNICATION.  BUT NOT ONLY IS INSPECTION AT REGULAR POINTS
OF ENTRY NOT INFALLIBLE, BUT IT IS ALSO PHYSICALLY IMPOSSIBLE TO
MAINTAIN CONTINUOUS PATROL OVER VAST STRETCHES OF OUR BORDERS.  THE
FACT IS THAT ILLEGAL CROSSINGS AT OTHER THAN THE LEGAL PORTS OF ENTRY
ARE NUMEROUS AND RECURRING.  IF THERE IS TO BE ANY HOPE OF INTERCEPTING
ILLEGAL ENTRANTS AND OF MAINTAINING ANY KIND OF CREDIBLE DETERRENT, IT
IS ESSENTIAL THAT PERMANENT OR TEMPORARY CHECKPOINTS BE MAINTAINED AWAY
FROM THE BORDERS, AND ROVING PATROLS BE CONDUCTED TO DISCOVER AND
INTERCEPT ILLEGAL ENTRANTS AS THEY FILTER TO THE ESTABLISHED ROADS AND
HIGHWAYS AND ATTEMPT TO MOVE AWAY FROM THE BORDER AREA.  IT IS FOR THIS
PURPOSE THAT THE BORDER PATROL MAINTAINED THE ROVING PATROL INVOLVED IN
THIS CASE AND CONDUCTED RANDOM, SPOT CHECKS OF AUTOMOBILES AND OTHER
VEHICULAR TRAFFIC. 

THE UNITED STATES IN THIS CASE REPORTS THAT IN FISCAL YEAR 1972,
BORDER PATROL TRAFFIC CHECKING OPERATIONS LOCATED OVER 39,000
DEPORTABLE ALIENS, OF WHOM APPROXIMATELY 30,000 HAD ENTERED THE UNITED
STATES BY ILLEGALLY CROSSING THE BORDER AT A PLACE OTHER THAN A PORT OF
ENTRY. 

[[HC294'(ORIGINAL DOCUMENT PAGE 294)'  THIS WAS SAID TO REPRESENT
NEARLY 10% OF THE NUMBER OF SUCH ALIENS LOCATED BY THE BORDER PATROL BY
ALL MEANS THROUGHOUT THE UNITED STATES.  /6/ 

SEARCHES OF CONVEYANCES AND OTHER PROPERTY.  NO SEARCHES OF THE PERSON
OR FOR CONTRABAND ARE AUTHORIZED BY THE SECTION.  THE AUTHORITY
EXTENDED BY THE STATUTE IS LIMITED TO THAT REASONABLY NECESSARY FOR THE
OFFICER TO ASSURE HIMSELF THAT THE VEHICLE OR OTHER CONVEYANCE IS NOT
CARRYING AN ALIEN WHO IS ILLEGALLY WITHIN THIS COURNTRY; AND MORE
EXTENSIVE SEARCHES OF AUTOMOBILES WITHOUT PROBABLE CAUSE ARE NOT
PERMITTED BY THE SECTION.  ROA-RODRIQUEZ V. UNITED STATES, 410 F.2D
1206 (CA10 1969); SEE FUMAGALLI V. UNITED STATES, 429 F.2D 1011, 1013
(CA9 1970).  GUIDED BY THE PRINCIPLES OF CAMARA, COLONNADE, AND
BISWELL, I CANNOT BUT UPHOLD THE JUDGMENT OF CONGRESS THAT FOR PURPOSES
OF ENFORCING THE IMMIGRATION LAWS IT IS REASONABLE TO TREAT THE
EXTERIOR BOUNDARIES OF THE COUNTRY AS A ZONE, NOT A LINE, AND THAT
THERE ARE RECURRING CIRCUMSTANCES IN WHICH THE SEARCH OF VEHICULAR
TRAFFIC WITHOUT WARRANT AND WITHOUT PROBABLE CAUSE MAY BE REASONABLE
UNDER THE FOURTH AMENDMENT ALTHOUGH NOT CARRIED OUT AT THE BORDER
ITSELF. 

THIS HAS ALSO BEEN THE CONSIDERED JUDGMENT OF THE THREE COURTS OF
APPEALS WHOSE DAILY CONCERN IS THE ENFORCEMENT OF THE IMMIGRATION LAWS
ALONG THE MEXICAN-AMERICAN BORDER, AND WHO, ALTHOUGH AS SENSITIVE TO
CONSTITUTIONAL COMMANDS AS WE ARE, PERHAPS HAVE A BETTER VANTAGE POINT
THAN WE HERE ON THE POTOMAC TO JUDGE THE PRACTICALITIES OF BORDER-AREA
LAW ENFORCEMENT AND THE REASONABLENESS OF OFFICIAL SEARCHES OF VEHICLES
TO ENFORCE THE IMMIGRATION STATUTES. 

[[HC295'(ORIGINAL DOCUMENT PAGE 295)' 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT, LIKE OTHER CIRCUITS,
RECOGNIZES THAT AT THE BORDER ITSELF, PERSONS MAY BE STOPPED,
IDENTIFIED, AND SEARCHED WITHOUT WARRANT OR PROBABLE CAUSE AND THEIR
EFFECTS AND CONVEYANCES LIKEWISE SUBJECTED TO INSPECTION.  THERE SEEMS
TO BE NO DISSENT ON THIS PROPOSITION.  AWAY FROM THE BORDER, PERSONS
AND AUTOMOBILES MAY BE SEARCHED FOR NARCOTICS OR OTHER CONTRABAND ONLY
ON PROBABLE CAUSE; BUT UNDER ^ 1357 (A) (3), AUTOMOBILES MAY BE STOPPED
WITHOUT WARRANT OR PROBABLE CAUSE AND A LIMITED SEARCH FOR ALIENS
CARRIED OUT IN THOSE PORTIONS OF THE CONVEYANCE CAPABLE OF CONCEALING
ANY ILLEGAL IMMIGRANT.  THIS HAS BEEN THE CONSISTENT VIEW OF THAT
COURT. 

IN FUMAGALLI V. UNITED STATES, SUPRA, FUMAGALLI WAS STOPPED AT A
CHECKPOINT IN IMPERIAL, CALIFORNIA, 49 MILES NORTH OF THE INTERNATIONAL
BOUNDARY.  IN THE COURSE OF LOOKING IN THE TRUNK FOR AN ILLEGAL
ENTRANT, THE ODOR OF MARIHUANA WAS DETECTED AND MARIHUANA DISCOVERED. 
FUMAGALLI CONTENDED THAT THE TRUNK OF THE AUTOMOBILE COULD NOT BE
EXAMIEND TO LOCATE AN ILLEGAL ENTRANT ABSENT PROBABLE CAUSE TO BELIEVE
THAT THE VEHICLE CARRIED SUCH A PERSON.  THE COURT, COMPOSED OF JUDGES
MERRILL, HUFSTEDLER, AND BYRNE, REJECTED THE POSITION, STATING THAT
"(WHAT ALL OF THESE CASES MAKE CLEAR IS THAT PROBABLE CAUSE IS NOT
REQUIRED FOR AN IMMIGRATION SEARCH WITHIN APPROVED LIMITS (FOOTNOTE
OMITTED) BUT IS GENERALLY REQUIRED TO SUSTAIN THE LEGALITY OF A SEARCH
FOR CONTRABAND IN A PERSON'S AUTOMOBILE CONDUCTED AWAY FROM THE
INTERNATIONAL BORDERS.  . . . 

[[HC296'(ORIGINAL DOCUMENT PAGE 296)'  APPELLANT HAS CONFUSED THE
TWO RULES IN HIS ATTEMPT TO GRAFT THE PROBABLE CAUSE STANDARDS OF THE
NARCOTICS CASES . . . ONTO THE RULES JUSTIFYING IMMIGRATION INSPECTIONS
. . . ."  429 F.2D, AT 1013.  AMONG PRIOR CASES REAFFIRMED WAS
FERNANDEZ V. UNITED STATES, 321 F.2D 283 (1963), WHERE AN AUTOMOBILE
WAS STOPPED 18 MILES NORTH OF OCEANSIDE, CALIFORNIA, ON HIGHWAY 101 AT
A POINT 60 TO 70 MILES NORTH OF THE MEXICAN BORDER.  AN INSPECTION FOR
ILLEGALLY ENTERING ALIENS WAS CONDUCTED, NARCOTICS WERE DISCOVERED AND
SEIZED, AND THE STOP AND SEIZURE WERE SUSTAINED UNDER THE STATUTE.  THE
IMMIGRATION SERVICE, IT WAS NOTED, HAD BEEN RUNNING TRAFFIC CHECKS IN
THIS AREA FOR 31 YEARS, MANY ILLEGAL ENTRANTS HAD BEEN DISCOVERED
THERE, AND THERE WERE AT LEAST A DOZEN OTHER SUCH CHECKPOINTS OPERATING
ALONG THE BORDER BETWEEN THE UNITED STATES AND MEXICO.  /7/ 

THE COURTS OF APPEAL FOR THE FIFTH AND TENTH CIRCUITS SHARE THE
PROBLEM OF ENFORCING THE IMMIGRATION LAWS ALONG THE MEXICAN-AMERICAN
BORDER.  BOTH COURTS AGREE WITH THE NINTH CIRCUIT THAT SEC. 1357 (A)
(3) IS NOT VOID AND THAT THERE ARE RECURRING CIRCUMSTANCES WHERE, AS
THE STATUTE PERMITS, A STOP OF AN AUTOMOBILE WITHOUT WARRANT OR
PROBABLE CAUSE AND A SEARCH OF IT FOR ALIENS ARE CONSTITUTIONALLY
PERMISSIBLE. 

IN UNITED STATES V. DE LEON, 462 F.2D 170 (CA5 1972), DE LEON WAS
STOPPED WITHOUT WARRANT OR PROBABLE CAUSE, WHILE DRIVING ON THE HIGHWAY
LEADING NORTH OF LAREDO, TEXAS, APPROXIMATELY 10 MILES FROM THE MEXICAN
BORDER. 

[[HC297'(ORIGINAL DOCUMENT PAGE 297)'  THE PURPOSE OF THE STOP WAS
TO INSPECT FOR ILLEGALLY ENTERING ALIENS.  DE LEON OPENED THE TRUCK AS
HE WAS REQUESTED TO DO.  A FALSE BOTTOM IN THE TRUNK AND WHAT WAS
THOUGHT TO BE AN ODER OF MARIHUANA WERE IMMEDIATELY NOTICED AND SOME
HEROIN WAS SEIZED.  JUDGE WISDOM, WRITING FOR HIMSELF AND JUDGES
GODBOLD AND RONEY, CONCLUDED THAT: 

     "STOPPING THE AUTOMOBILE 10 MILES FROM THE MEXICAN BORDER TO

  SEARCH FOR ILLEGAL ALIENS WAS REASONABLE.  SEE UNITED STATES V.

  MCDANEIL, (463 F.2D 129 (CA5 1972)); UNITED STATES V. WARNER, 5

  CIR. 1971, 441 F.2D 821; MARSH V. UNITED STATES, 5 CIR. 1965, 344

  F.2D 317, 8 U.S.C. ^^ 1225, 1357; 19 U.S.C. ^^ 482, 1581, 8 C. F.

  R. ^ 287.1 (1973); 19 C. F. R. ^^ 23.1 (D), 23.11 (1972).  ONCE

  THE VEHICLE WAS REASONABLY STOPPED PURSUANT TO AN AUTHORIZED

  BORDER CHECK THE AGENTS WERE EMPOWERED TO SEARCH THE VEHICLE,

  INCLUDING THE TRUNK, FOR ALIENS."  ID., AT 171. 

SIMILARLY, UNITED STATES V. MCDANIEL, 463 F.2D 129 (CA5 1972),
UPHELD A STOP AND AN ENSUING SEARCH FOR ALIENS THAT UNCOVERED ANOTHER
CRIME.  JUDGE GOLDBERG, WITH JUDGE WISDOM AND JUDGE CLARK, WAS CAREFUL
TO POINT OUT, HOWEVER, THAT THE AUTHORITY GRANTED UNDER THE STATUTE
MUST STILL BE EXERCISED IN A MANNER CONSISTENT WITH THE STANDARDS OF
REASONABLENESS OF THE FOURTH AMENDMENT.  "ONCE THE NATIONAL FRONTIER
HAS BEEN CROSSED, THE SEARCH IN QUESTION MUST BE REASONABLE UPON ALL OF
ITS FACTS, ONLY ONE OF WHICH IS THE PROXIMITY OF THE SEARCH TO AN
INTERNATIONAL BORDER."  ID., AT 133.  THIS VIEW APPEARS TO HAVE BEEN
THE LAW IN THE FIFTH CIRCUIT FOR MANY YEARS.  /8/ 

THE COURT OF APPEALS FOR THE TENTH CIRCUIT HAS EXPRESSED SIMILAR
VIEWS. 

[[HC298'(ORIGINAL DOCUMENT PAGE 298)'  IN ROA-RODRIQUEZ, SUPRA, THE
AUTOMOBILE WAS STOPPED IN NEW MEXICO SOME DISTANCE FROM THE MEXICAN
BORDER, THE PURPOSE BEING TO SEARCH FOR ALIENS.  RELYING ON THE
STATUTE, THE COURT, SPEAKING THOUGH JUDGE BREITENSTEIN, CONCLUDED THAT
"(IN THE CIRCUMSTANCES THE INITIAL STOP AND SEARCH FOR ALIENS WERE
PROPER."  ID., AT 1208.  HOWEVER, WHEN IT WAS DETERMINED BY THE
OFFICERS THAT THERE WERE NO OCCUPANTS OF THE CAR ILLEGALLY IN THE
COUNTRY, WHETHER IN THE TRUNK OF ELSEWHERE, THE COURT HELD THAT THE
OFFICERS HAD NO BUSINESS EXAMINING THE CONTENTS OF A JACKET FOUND IN
THE TRUNK.  THE EVIDENCE IN THIS CASE WAS EXCLUDED.  THE CLEAR RULE OF
THE CIRCUIT, HOWEVER, IS THAT CONVEYANCES MAY BE STOPPED AND EXAMINED
FOR ALIENS WITHOUT WARRANT OR PROBABLE CAUSE WHEN IN ALL THE
CIRCUMSTANCES IT IS REASONABLE TO DO SO.  /9/ 

CONGRESS ITSELF HAS AUTHORIZED VEHICLE SEARCHES AT A REASONABLE
DISTANCE FROM INTERNATIONAL FRONTIERS IN ORDER TO AID IN THE
ENFORCEMENT OF THE IMMIGRATION LAWS.  CONGRESS HAS LONG CONSIDERED SUCH
INSPECTIONS CONSTITUTIONALLY PERMISSIBLE UNDER THE FOURTH AMENDMENT. 
SO, ALSO, THOSE COURTS AND JUDGES BEST POSITIONED TO MAKE INTELLIGENT
AND SENSIBLE ASSESSMENTS OF THE REQUIREMENTS OF REASONABLENESS IN THE
CONTEXT OF CONTROLLING ILLEGAL ENTRIES INTO THIS COUNTRY HAVE
CONSISTENTLY AND ALMOST WITHOUT DISSENT COME TO THE SAME CONCLUSION
THAT IS EMBODIED IN THE JUDGMENT THAT IS REVERSED TODAY.  /10/

        II 

I ALSO THINK THAT SEC. 1357 (A) (3) WAS VALIDLY APPLIED IN THIS CASE
AND THAT THE SEARCH FOR ALIENS AND THE DISCOVERY OF MARIHUANA WERE NOT
ILLEGAL UNDER THE FOURTH AMENDMENT. 

[[HC299'(ORIGINAL DOCUMENT PAGE 299)'  IT WAS STIPULATED THAT THE
HIGHWAY INVOLVED HERE WAS ONE OF THE FEW ROADS IN CALIFORNIA MOVING
AWAY FROM THE MEXICAN BORDER THAT DID NOT HAVE AN ESTABLISHED CHECK
STATION AND THAT IT IS COMMONLY USED BY ALIEN SMUGGLERS TO EVADE
REGULAR CHECKPOINTS.  THE AUTOMOBILE, WHEN STOPPED SOMETIME AFTER
MIDNIGHT, WAS 50 MILES ALONG THE ROAD FROM THE BORDER TOWN OF CALEXICO,
PROCEEDING TOWARD BLYTHE, CALIFORNIA; BUT AS A MATTER OF FACT IT
APPEARS THAT THE POINT AT WHICH THE CAR WAS STOPPED WAS APPROXIMATELY
ONLY 20 MILES DUE NORTH OF THE MEXICAN BORDER.  GIVEN THE LARGE NUMBER
OF ILLEGAL ENTRIES ACROSS THE MEXICAN BORDER AT OTHER THAN ESTABLISHED
PORTS OF ENTRY, AS WELL AS THE LIKELIHOOD THAT MANY ILLEGALLY ENTERING
ALIENS CROSS ON FOOT AND MEET PREARRANGED TRANSPORTATION IN THIS
COURNTRY, I THINK THAT UNDER ALL THE CIRCUMSTANCES THE STOP OF
PETITIONER'S CAR WAS REASONABLE, TO AN OFFICIAL BULLETIN SUGGESTING
SEARCH PROCEDURES BASED ON EXPERIENCE.  GIVEN A VALID SEARCH OF THE CAR
FOR ALIENS, IT IS IN NO WAY CONTENDED THAT THE DISCOVERY AND SEIZURE OF
THE MARIHUANA WERE CONTRARY TO LAW.  /11/ 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

[[DFN 

/1/  THE FACTS, EXCEPT FOR WHEN PETITIONER WAS STOPPED, ARE TAKEN
FROM THE ORAL STIPULATION IN OPEN COURT.  SEE APP. 11 - 14.  THE TIME
PETITIONER WAS STOPPED IS GIVEN BY THE COMPLAINT AS 12:15 A. M., APP.
4, WHILE PETITIONER TESTIFIED AT TRIAL THAT HE WAS "STOPPED ABOUT
1:00."  3 TR. OF REC. 62. 

/2/  WEST OF GLAMIS THE PREVAILING DIRECTION OF THE HIGHWAY IS EAST
WEST.  AT THE POINT OF THE STOP WEST OF GLAMIS, THE HIGHWAY IS ONLY
APPROXIMATELY 20 MILES NORTH OF THE BORDER, RUNNING PARALLEL TO IT.
EAST OF GLAMIS, THE HIGHWAY PROCEEDS SHARPLY NORTHEAST OF BLYTHE, A
DISTANCE OF OVER 50 MILES. 

/3/  IT APPEARS, SEE APP. 12, 13, THAT THE OFFICERS WERE INFORMED OF
THESE FACTS BEFORE INITIATING ANY SEARCH FOR ALIENS, AND HENCE BEFORE
FINDING ANY CONTRABAND. 

/4/  TITLE 8 U.S.C. ^ 1357 (A), PROVIDES IN PERTINENT PART: 

"ANY OFFICER OR EMPLOYEE OF THE (IMMIGRATION AND NATURALIZATION)
SERVICE AUTHORIZED UNDER REGULATIONS PRESCRIBED BY THE ATTORNEY GENERAL
SHALL HAVE POWER WITHOUT WARRANT --

        *          *          *          * 

"(3) WITHIN A REASONABLE DISTANCE FROM ANY EXTERNAL BOUNDARY OF THE
UNITED STATES, TO BOARD AND SEARCH FOR ALIENS ANY VESSEL WITHIN THE
TERRITORIAL WATERS OF THE UNITED STATES AND ANY RAILWAY CAR, AIRCRAFT,
CONVEYANCE, OR VEHICLE, AND WITHIN A DISTANCE OF TWENTY-FIVE MILES FROM
ANY SUCH EXTERNAL BOUNDARY TO HAVE ACCESS TO PRIVATE LANDS, BUT NOT
DWELLINGS, FOR THE PURPOSE OF PATROLLING THE BORDER TO PREVENT THE
ILLEGAL ENTRY OF ALIENS INTO THE UNITED STATES . . . ." 

THE COURT OF APPEALS ALSO RELIED ON 8 CFR ^ 287.1, WHICH IN RELEVANT
PART PROVIDES: 

"(A) (2) REASONABLE DISTANCE.  THE TERM 'REASONABLE DISTANCE,' AS
USED IN SECTION 287 (A) (3) OF THE ACT, MEANS WITHIN 100 AIR MILES FROM
ANY EXTERNAL BOUNDARY OF THE UNITED STATES OR ANY SHORTER DISTANCE
WHICH MAY BE FIXED BY THE DISTRICT DIRECTOR, OR, SO FAR AS THE POWER TO
BOARD AND SEARCH AIRCRAFT IS CONCERNED, ANY DISTANCE FIXED PURSUANT TO
PARAGRAPH (B) OF THIS SECTION." 

/5/  IN COLONNADE CATERING CORP. V. UNITED STATES, 397 U.S. 72
(1970), THE CONVICTION WAS SET ASIDE BECAUSE IT WAS THOUGHT THAT
CONGRESS, WITH ALL THE AUTHORITY IT HAD TO PRESCRIBE STANDARDS OF
REASONABLENESS UNDER THE FOURTH AMENDMENT, HAD NOT INTENDED FEDERAL
INSPECTORS TO USE FORCE IN CARRYING OUT WARRANTLESS, NON-PROBABLE-CAUSE
INSPECTIONS.  IN DISSENT, THE CHIEF JUSTICE, JOINED BY JUSTICES BLACK
AND STEWART, WOULD HAVE SUSTAINED THE SEARCH, SAYING:  "I ASSUME WE
COULD ALL AGREE THAT THE SEARCH IN QUESTION MUST BE HELD VALID, AND THE
CONTRABAND DISCOVERED SUBJECT TO SEIZURE AND FORFEITURE, UNLESS (A) IT
IS 'UNREASONABLE' UNDER THE CONSTITUTION OR (B) IT IS PROHIBITED BY A
STATUTE IMPOSING RESTRAINTS APART FROM THOSE IN THE CONSTITUTION.  THE
MAJORITY SEES NO CONSTITUTIONAL VIOLATION; I AGREE."  ID., AT 78. 

IN A SEPARATE DISSENT MR. JUSTICE BLACK, JOINED BY THE CHIEF JUSTICE
AND MR. JUSTICE STEWART, ALSO EMPHASIZED THE ULTIMATE TEST OF LEGALITY
UNDER THE FOURTH AMENDMENT WAS WHETHER THE SEARCH AND SEIZURE WERE
REASONABLE.  ID., AT 79 - 81. 

/6/  IN FISCAL YEAR 1972, 398,000 ALIENS WHO HAD ENTERED THE UNITED
STATES WITHOUT INSPECTION WERE LOCATED BY IMMIGRATION AND
NATURALIZATION OFFICERS; AND OF THE 39,243 DEPORTABLE ALIENS LOCATED
THROUGH TRAFFIC CHECKING OPERATIONS, ABOUT ONE-THIRD, 11,586, HAD BEEN
ASSISTED BY SMUGGLERS.  IN FISCAL YEAR 1972, 2,880 SUCH SMUGGLERS WERE
DISCOVERED THROUGH TRAFFIC CHECKING OPERATIONS.  NINETY-NINE PERCENT OF
ALL ALIENS ILLEGALLY ENTERING THE UNITED STATES BY LAND CROSSED OUR
BORDER FROM MEXICO. 

/7/  IN THE COURT OF APPEALS FOR THE NINTH CIRCUIT, 8 U.S.C. ^ 1357
(A) (3) HAS ALSO BEEN SUSTAINED IN E. G., MIENKE V. UNITED STATES, 452
F.2D 1076 (1971); UNITED STATES V. MARIN, 444 F.2D 86 (1971); DUPREZ V.
UNITED STATES, 435 F.2D 1276 (1970); UNITED STATES V. SANCHEZ-MATA, 429
F.2D 1391 (1970); UNITED STATES V. AVEY, 428 F.2D 1159 (1970); UNITED
STATES V. MIRANDA, 426 F.2D 283 (1970); AND UNITED STATES V. ELDER, 425
F.2D 1170 (1970), AND BARBA-REYES V. UNITED STATES, 387 F.2D 91
(1967). 

/8/  E. G., KELLY V. UNITED STATES, 197 F.2D 162 (1952).  SEE ALSO
UNITED STATES V. BIRD, 456 F.2D 1023, 1024 (1972); RAMIREZ V. UNITED
STATES, 263 F.2D 385, 387 (1959); AND HAERR V. UNITED STATES, 240 F.2D
533 (1957). 

/9/  E. G., UNITED STATES V. ANDERSON, 468 F.2D 1280 (1972); AND
UNITED STATES V. MCCORMICK, 468 F.2D 68 (1972). 

/10/  WITHOUT HAVING UNDERTAKEN AN EXHAUSTIVE SURVEY, IN THE 20 COURT
OF APPEALS CASES I HAVE NOTED, INCLUDING THE ONE BEFORE US, 35
DIFFERENT JUDGES OF THE THREE COURTS OF APPEALS FOUND INSPECTION OF
VEHICLES FOR ILLEGAL ALIENS WITHOUT WARRANT OR PROBABLE CAUSE TO BE
CONSTITUTIONAL.  ONLY ONE JUDGE HAS EXPRESSED A DIFFERENT VIEW. 

/11/  THE UNITED STATES DOES NOT CONTEND, SEE TR. OF ORAL ARG. 29,
AND I DO NOT SUGGEST THAT ANY SEARCH OF A VEHICLE FOR ALIENS WITHIN 100
MILES OF THE BORDER PURSUANT TO 8 CFR ^ 287.1 WOULD PASS CONSTITUTIONAL
MUSTER.  THE POSSIBLE INVALIDITY OF THE REGULATION AND OF 8 U.S.C. ^
1357 (A) (3) IN OTHER CIRCUMSTANCES IS NOT AT ISSUE HERE. 

JAMES A. CHANOUX, AND JOHN J. CLEARY BY APPOINTMENT OF THE COURT,
411 U.S. 903, ARGUED THE CAUSE FOR PETITIONER.  MR. CHANOUX WAS ON THE
BRIEF. 

DEPUTY SOLICITOR GENERAL LACOVARA ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL PETERSEN, MARK L. EVANS, BEATRICE ROSENBERG,
AND ROGER A PAULEY.  /1/ 

/1/  LUKE MCKISSACK FILED A BRIEF AS AMICUS CURIAE URGING REVERSAL. 
ARTHUR WELLS, JR., FILED A BRIEF FOR GILBERT FOERSTER AS AMICUS
CURIAE. 
..END :





















UNITED STATES V. ASH 413 U.S. 300 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT 

     NO. 71 - 1255.  ARGUED JANUARY 10, 1973--DECIDED JUNE 21,
1973;

  149 U.S. APP. D.C. 1, 461 F.2D 92, REVERSED AND REMANDED. 


    THE SIXTH AMENDMENT DOES NOT GRANT AN ACCUSED THE RIGHT TO HAVE

  COUNSEL PRESENT WHEN THE GOVERNMENT CONDUCTS A POST-INDICTMENT

  PHOTOGRAPHIC DISPLAY, CONTAINING A PICTURE OF THE ACCUSED, FOR

  THE PURPOSE OF ALLOWING A WITNESS TO ATTEMPT AN IDENTIFICATION OF

  THE OFFENDER.  A PRETRIAL EVENT CONSTITUTES A "CRITICAL STAGE"

  WHEN THE ACCUSED REQUIRES AID IN COPING WITH LEGAL PROBLEMS OR

  HELP IN MEETING HIS ADVERSARY.  SINCE THE ACCUSED IS NOT PRESENT

AT THE TIME OF THE PHOTOGRAPHIC DISPLAY, AND, AS HERE, ASSERTS NO

  RIGHT TO BE PRESENT, THERE IS NO POSSIBILITY THAT HE MIGHT BE

  MISLED BY HIS LACK OF FAMILIARITY WITH THE LAW OR OVERPOWERED BY

  HIS PROFESSIONAL ADVERSARY.  UNITED STATES V. WADE, 388 U.S. 218,

  DISTINGUISHED.  PP. 306 - 321. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, POWELL, AND REHNQUIST, JJ., JOINED.  STEWART, J.,
FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 321.  BRENNAN,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ.,
JOINED, POST, P. 326. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE COURT IS CALLED UPON TO DECIDE WHETHER THE SIXTH
AMENDMENT /1/  GRANTS AN ACCUSED THE RIGHT TO HAVE COUNSEL PRESENT
WHENEVER THE GOVERNMENT CONDUCTS A POST-INDICTMENT PHOTOGRAPHIC
DISPLAY, CONTAINING A PICTURE OF THE ACCUSED, FOR THE PURPOSE OF
ALLOWING A WITNESS TO ATTEMPT AN IDENTIFICATION OF THE OFFENDER. 

[[HC301'(ORIGINAL DOCUMENT PAGE 301)'  THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, SITTING EN BANC, HELD, BY
A 5-TO-4 VOTE, THAT THE ACCUSED POSSESSES THIS RIGHT TO COUNSEL.  149
U.S. APP. D. C. 1, 461 F.2D 92 (1972).  THE COURT'S HOLDING IS
INCONSISTENT WITH DECISIONS OF THE COURTS OF APPEALS OF NINE OTHER
CIRCUITS.  /2/  WE GRANTED CERTIORARI TO RESOLVE THE CONFLICT AND TO
DECIDE THIS IMPORTANT CONSTITUTIONAL QUESTION. 

[[HC302'(ORIGINAL DOCUMENT PAGE 302)'  407 U.S. 909 (1972).  WE
REVERSE AND REMAND. 

      I 

ON THE MORNING OF AUGUST 26, 1965, A MAN WITH A STOCKING MASK
ENTERED A BANK IN WASHINGTON, D. C., AND BEGAN WAVING A PISTOL.  HE
ORDERED AN EMPLOYEE TO HANG UP THE TELEPHONE AND INSTRUCTED ALL OTHERS
PRESENT NOT TO MOVE.  SECONDS LATER A SECOND MAN, ALSO WEARING A
STOCKING MASK, ENTERED THE BANK, SCOOPED UP MONEY FROM TELLERS' DRAWERS
INTO A BAG, AND LEFT.  THE GUNMAN FOLLOWED, AND BOTH MEN ESCAPED
THROUGH AN ALLEY.  THE ROBBERY LASTED THREE OR FOUR MINUTES. 

A GOVERNMENT INFORMER, CLARENCE MCFARLAND, TOLD AUTHORITIES THAT HE
HAD DISCUSSED THE ROBBER WITH CHARLES J. ASH, JR., THE RESPONDENT
HERE.  ACTING ON THIS INFORMATION, AN FBI AGENT, IN FEBRUARY 1966,
SHOWED FIVE BLACK-AND-WHITE MUG SHOTS, OF NEGRO MALES OF GENERALLY THE
SAME AGE, HEIGHT, AND WEIGHT, ONE OF WHICH WAS OF ASH, TO FOUR
WITNESSES.  ALL FOUR MADE UNCERTAIN IDENTIFICATIONS OF ASH'S PICTURE. 
AT THIS TIME ASH WAS NOT IN CUSTODY AND HAD NOT BEEN CHARGED.  ON APRIL
1, 1966, AN INDICTMENT WAS RETURNED CHARGING ASH AND A CO-DEFENDANT,
JOHN L. BAILEY, IN FIVE COUNTS RELATED TO THIS BANK ROBBERY, IN
VIOLATION OF D. C. CODE ANN. ^ 22 - 2901 AND 18 U.S.C. ^ 2113 (A). 

[[HC303'(ORIGINAL DOCUMENT PAGE 303)' 

TRIAL WAS FINALLY SET FOR MAY 1968, ALMOST THREE YEARS AFTER THE
CRIME.  IN PREPARING FOR TRIAL, THE PROSECUTOR DECIDED TO USE A
PHOTOGRAPHIC DISPLAY TO DETERMINE WHETHER THE WITNESSES HE PLANNED TO
CALL WOULD BE ABLE TO MAKE IN-COURT IDENTIFICATIONS.  SHORTLY BEFORE
THE TRIAL, AN FBI AGENT AND THE PROSECUTOR SHOWED FIVE COLOR
PHOTOGRAPHS TO THE FOUR WITNESSES WHO PREVIOUSLY HAD TENTATIVELY
IDENTIFIED THE BLACK-AND-WHITE PHOTOGRAPH OF ASH.  THREE OF THE
WITNESSES SELECTED THE PICTURE OF ASH, BUT ONE WAS UNABLE TO MAKE ANY
SELECTION.  NONE OF THE WITNESSES SELECTED THE PICTURE OF BAILEY WHICH
WAS IN THE GROUP.  THIS POST-INDICTMENT /3/  IDENTIFICATION PROVIDES
THE BASIS FOR RESPONDENT ASH'S CLAIM THAT HE WAS DENIED THE RIGHT TO
COUNSEL AT A "CRITICAL STAGE" OF THE PROSECUTION. 

NO MOTION FOR SEVERANCE WAS MADE, AND ASH AND BAILEY WERE TRIED
JOINTLY.  THE TRIAL JUDGE HELD A HEARING ON THE SUGGESTIVE NATURE OF
THE PRETRIAL PHOTOGRAPHIC DISPLAYS.  /4/  THE JUDGE DID NOT MAKE A
CLEAR RULING ON SUGGESTIVE NATURE, BUT HELD THAT THE GOVERNMENT HAD
DEMONSTRATED BY "CLEAR AND CONVINCING" EVIDENCE THAT IN-COURT
IDENTIFICATIONS WOULD BE "BASED ON OBSERVATION OF THE SUSPECT OTHER
THAN THE INTERVENING OBSERVATION."  APP. 63 - 64. 

[[HC304'(ORIGINAL DOCUMENT PAGE 304)' 

AT TRIAL, THE THREE WITNESSES WHO HAD BEEN INSIDE THE BANK
IDENTIFIED ASH AS THE GUNMAN, BUT THEY WERE UNWILLING TO STATE THAT
THEY WERE CERTAIN OF THEIR IDENTIFICATIONS.  NONE OF THESE MADE AN IN
COURT IDENTIFICATION OF BAILEY.  THE FOURTH WITNESS, WHO HAD BEEN IN A
CAR OUTSIDE THE BANK AND WHO HAD SEEN THE FLEEING ROBBERS AFTER THEY
HAD REMOVED THEIR MASKS, MADE POSITIVE IN-COURT IDENTIFICATIONS OF BOTH
ASH AND BAILEY.  BAILEY'S COUNSEL THEN SOUGHT TO IMPEACH THIS IN-COURT
IDENTIFICATION BY CALLING THE FBI AGENT WHO HAD SHOWN THE COLOR
PHOTOGRAPHS TO THE WITNESSES IMMEDIATELY BEFORE TRIAL.  BAILEY'S
COUNSEL DEMONSTRATED THAT THE WITNESS WHO HAD IDENTIFIED BAILEY IN
COURT HAD FAILED TO IDENTIFY A COLOR PHOTOGRAPH OF BAILEY.  DURING THE
COURSE OF THE EXAMINATION, BAILEY'S COUNSEL ALSO, BEFORE THE JURY,
BROUGHT OUT THE FACT THAT THIS WITNESS HAD SELECTED ANOTHER MAN AS ONE
OF THE ROBBERS.  AT THIS POINT THE PROSECUTOR BECAME CONCERNED THAT THE
JURY MIGHT BELIEVE THAT THE WITNESS HAD SELECTED A THIRD PERSON WHEN,
IN FACT, THE WITNESS HAD SELECTED A PHOTOGRAPH OF ASH.  AFTER A
CONFERENCE AT THE BENCH, THE TRIAL JUDGE RULED THAT ALL FIVE COLOR
PHOTOGRAPHS WOULD BE ADMITTED INTO EVIDENCE.  THE COURT OF APPEALS HELD
THAT THIS CONSTITUTED THE INTRODUCTION OF A POST-INDICTMENT
IDENTIFICATION AT THE PROSECUTOR'S REQUEST AND OVER THE OBJECTION OF
DEFENSE COUNSEL.  /5/ 

MCFARLAND TESTIFIED AS A GOVERNMENT WITNESS. 

[[HC305'(ORIGINAL DOCUMENT PAGE 305)'  HE SAID HE HAD DISCUSSED
PLANS FOR THE ROBBERY WITH ASH BEFORE THE EVENT AND, LATER, HAD
DISCUSSED THE RESULTS OF THE ROBBERY WITH ASH IN THE PRESENCE OF
BAILEY.  MCFARLAND WAS SHOWN TO POSSESS AN EXTENSIVE CRIMINAL RECORD
AND A HISTORY AS AN INFORMER. 

THE JURY CONVICTED ASH ON ALL COUNTS.  IT WAS UNABLE TO REACH A
VERDICT ON THE CHARGES AGAINST BAILEY, AND HIS MOTION FOR ACQUITTAL WAS
GRANTED.  ASH RECEIVED CONCURRENT SENTENCES ON THE SEVERAL COUNTS, THE
TWO LONGEST BEING 80 MONTHS TO 12 YEARS. 

THE FIVE-MEMBER MAJORITY OF THE COURT OF APPEALS HELD THAT ASH'S
RIGHT TO COUNSEL, GUARANTEED BY THE SIXTH AMENDMENT, WAS VIOLATED WHEN
HIS ATTORNEY WAS NOT GIVEN THE OPPORTUNITY TO BE PRESENT AT THE
PHOTOGRAPHIC DISPLAYS CONDUCTED IN MAY 1968 BEFORE THE TRIAL.  THE
MAJORITY RELIED ON THIS COURT'S LINEUP CASES, UNITED STATES V. WADE,
388 U.S. 218 (1967), AND GILBERT V. CALIFORNIA, 388 U.S. 263 (1967),
AND ON STOVALL V. DENNO, 388 U.S. 293 (1967). 

THE MAJORITY DID NOT REACH THE ISSUE OF SUGGESTIVENESS; THEIR
OPINION IMPLIES, HOWEVER, THAT THEY WOULD ORDER A REMAND FOR ADDITIONAL
FINDINGS BY THE DISTRICT COURT.  149 U.S. APP. D. C., AT 7, 461 F.2D,
AT 98.  THE MAJORITY REFRAINED FROM DECIDING WHETHER THE IN-COURT
IDENTIFICATIONS COULD HAVE INDEPENDENT BASES, ID., AT 14 - 15 AND NN.
20, 21, 461 F.2D, AT 105 - 106 AND NN. 20, 21, BUT EXPRESSED DOUBT THAT
THE IDENTIFICATIONS AT THE TRIAL HAD INDEPENDENT ORIGINS. 

DISSENTING OPINIONS, JOINED BY FOUR JUDGES, DISAGREED WITH THE
DECISION OF THE MAJORITY THAT THE PHOTOGRAPHIC IDENTIFICATION WAS A
"CRITICAL STAGE" REQUIRING COUNSEL, AND CRITICIZED THE MAJORITY'S
SUGGESTION THAT THE IN-COURT IDENTIFICATIONS WERE TAINTED BY DEFECTS IN
THE PHOTOGRAPHIC IDENTIFICATIONS.  ID., AT 14 - 43, 461 F.2D, AT 106 -
134. 

        II 

THE COURT OF APPEALS RELIED EXCLUSIVELY ON THAT PORTION OF THE SIXTH
AMENDMENT PROVIDING, "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL
ENJOY THE RIGHT . . . TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENCE." 

[[HC306'(ORIGINAL DOCUMENT PAGE 306)'  THE RIGHT TO COUNSEL IN ANGLO
AMERICAN LAW HAS A RICH HISTORICAL HERITAGE, AND THIS COURT HAS
REGULARLY DRAWN ON THAT HISTORY IN CONSTRUING THE COUNSEL GUARANTEE OF
THE SIXTH AMENDMENT.  WE RE-EXAMINE THAT HISTORY IN AN EFFORT TO
DETERMINE THE RELATIONSHIP BETWEEN THE PURPOSES OF THE SIXTH AMENDMENT
GUARANTEE AND THE RISKS OF A PHOTOGRAPHIC IDENTIFICATION. 

IN POWELL V. ALABAMA, 287 U.S. 45, 60 - 66 (1932), THE COURT
DISCUSSED THE ENGLISH COMMON-LAW RULE THAT SEVERELY LIMITED THE RIGHT
OF A PERSON ACCUSED OF A FELONY TO CONSULT WITH COUNSEL AT TRIAL.  THE
COURT EXAMINED COLONIAL CONSTITUTIONS AND STATUTES AND NOTED THAT "IN
AT LEAST TWELVE OF THE THIRTEEN COLONIES THE RULE OF THE ENGLISH COMMON
LAW, IN THE RESPECT NOW UNDER CONSIDERATION, HAD BEEN DEFINITELY
REJECTED AND THE RIGHT TO COUNSEL FULLY RECOGNIZED IN ALL CRIMINAL
PROSECUTIONS, SAVE THAT IN ONE OR TWO INSTANCES THE RIGHT WAS LIMITED
TO CAPITAL OFFENSES OR TO THE MORE SERIOUS CRIMES."  ID., AT 64 - 65. 
THE SIXTH AMENDMENT COUNSEL GUARANTEE, THUS, WAS DERIVED FROM COLONIAL
STATUTES AND CONSTITUTIONAL PROVISIONS DESIGNED TO REJECT THE ENGLISH
COMMON-LAW RULE. 

APPARENTLY SEVERAL CONCERNS CONTRIBUTED TO THIS REJECTION AT THE
VERY TIME WHEN COUNTLESS OTHER ASPECTS OF THE COMMON LAW WERE BEING
IMPORTED.  ONE CONSIDERATION WAS THE INHERENT IRRATIONALITY OF THE
ENGLISH LIMITATION.  SINCE THE RULE WAS LIMITED TO FELONY PROCEEDINGS,
THE RESULT, ABSURD AND ILLOGICAL, WAS THAT AN ACCUSED MISDEMEANANT
COULD RELY FULLY ON COUNSEL, BUT THE ACCUSED FELON, IN THEORY AT LEAST,
/6/  COULD CONSULT COUNSEL ONLY ON LEGAL QUESTIONS THAT THE ACCUSED
PROPOSED TO THE COURT. 

[[HC307'(ORIGINAL DOCUMENT PAGE 307)'  SEE POWELL V. ALABAMA, 287
U.S., AT 60.  ENGLISH WRITERS WERE APPROPRIATELY CRITICAL OF THIS
INCONSISTENCY.  SEE, FOR EXAMPLE, 4 W. BLACKSTONE, COMMENTARIES *355. 

A CONCERN OF MORE LASTING IMPORTANCE WAS THE RECOGNITION AND
AWARENESS THAT AN UNAIDED LAYMAN HAD LITTLE SKILL IN ARGUING THE LAW OR
IN COPING WITH AN INTRICATE PROCEDURAL SYSTEM.  THE FUNCTION OF COUNSEL
AS A GUIDE THROUGH COMPLEX LEGAL TECHNICALITIES LONG HAS BEEN
RECOGNIZED BY THIS COURT.  MR. JUSTICE SUTHERLAND'S WELL-KNOWN
OBSERVATIONS IN POWELL BEAR REPEATING HERE: 

"EVEN THE INTELLIGENT AND EDUCATED LAYMAN HAS SMALL AND SOMETIMES NO
SKILL IN THE SCIENCE OF LAW.  IF CHARGED WITH CRIME, HE IS INCAPABLE,
GENERALLY, OF DETERMINING FOR HIMSELF WHETHER THE INDICTMENT IS GOOD OR
BAD.  HE IS UNFAMILIAR WITH THE RULES OF EVIDENCE.  LEFT WITHOUT THE
AID OF COUNSEL HE MAY BE PUT ON TRIAL WITHOUT A PROPER CHARGE, AND
CONVICTED UPON IMCOMPETENT EVIDENCE, OR EVIDENCE IRRELEVANT TO THE
ISSUE OR OTHERWISE INADMISSIBLE.  HE LACKS BOTH THE SKILL AND KNOWLEDGE
ADEQUATELY TO PREPARE HIS DEFENSE, EVEN THOUGH HE HAVE A PERFECT ONE. 
HE REQUIRES THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE
PROCEEDINGS AGAINST HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE FACES
THE DANGER OF CONVICTION BECAUSE HE DOES NOT KNOW HOW TO ESTABLISH HIS
INNOCENCE."  287 U.S., AT 69 

THE COURT FREQUENTLY HAS INTERPRETED THE SIXTH AMENDMENT TO ASSURE
THAT THE "GUIDING HAND OF COUNSEL" IS AVAILABLE TO THOSE IN NEED OF ITS
ASSISTANCE. 

[[HC308'(ORIGINAL DOCUMENT PAGE 308)'  SEE, FOR EXAMPLE, GIDEON V.
WAINWRIGHT, 372 U.S. 335, 344 - 345 (1963), AND ARGERSINGER V. HAMLIN,
407 U.S. 25, 31 (1972). 

ANOTHER FACTOR CONTRIBUTING TO THE COLONIAL RECOGNITION OF THE
ACCUSED'S RIGHT TO COUNSEL WAS THE ADOPTION OF THE INSTITUTION OF THE
PUBLIC PROSECUTOR FROM THE CONTINENTAL INQUISITORIAL SYSTEM.  ONE
COMMENTATOR HAS EXPLAINED THE EFFECT OF THIS DEVELOPMENT: 

"(EARLY IN THE EIGHTEENTH CENTURY THE AMERICAN SYSTEM OF JUDICIAL
ADMINISTRATION ADOPTED AN INSTITUTION WHICH WAS (AND TO SOME EXTENT
STILL IS) UNKNOWN IN ENGLAND:  WHILE REJECTING THE FUNDAMENTAL JURISTIC
CONCEPTS UPON WHICH CONTINENTAL EUROPE'S INQUISITORIAL SYSTEM OF
CRIMINAL PROCEDURE IS PREDICATED, THE COLONIES BORROWED ONE OF ITS
INSTITUTIONS, THE PUBLIC PROSECUTOR, AND GRAFTED IT UPON THE BODY OF
ENGLISH (ACCUSATORIAL) PROCEDURE EMBODIED IN THE COMMON LAW. 
PRESUMABLY, THIS INNOVATION WAS BROUGHT ABOUT BY THE LACK OF LAWYERS,
PARTICULARLY IN THE NEWLY SETTLED REGIONS, AND BY THE INCREASING
DISTANCES BETWEEN THE COLONIAL CAPITALS ON THE EASTERN SEABOARD AND THE
EVER-RECEDING WESTERN FRONTIER.  ITS RESULT WAS THAT, AT A TIME WHEN
VIRTUALLY ALL BUT TREASON TRIALS IN ENGLAND WERE STILL IN THE NATURE OF
SUITS BETWEEN PRIVATE PARTIES, THE ACCUSED IN THE COLONIES FACED A
GOVERNMENT OFFICIAL WHOSE SPECIFIC FUNCTION IT WAS TO PROSECUTE, AND
WHO WAS IMCOMPARABLY MORE FAMILIAR THAN THE ACCUSED WITH THE PROBLEMS
OF PROCEDURE, THE IDIOSYNCRASIES OF JURIES, AND LAST BUT NOT LEAST, THE
PERSONNEL OF THE COURT."  F. HELLER, THE SIXTH AMENDMENT 20 - 21 (1951)
(FOOTNOTE OMITTED). 

THUS, AN ADDITIONAL MOTIVATION FOR THE AMERICAN RULE WAS A DESIRE TO
MINIMIZE THE IMBALANCE IN THE ADVERSARY SYSTEM THAT OTHERWISE RESULTED
WITH THE CREATION OF A PROFESSIONAL PROSECUTING OFFICIAL. 

[[HC309'(ORIGINAL DOCUMENT PAGE 309)'  MR. JUSTICE BLACK, WRITING
FOR THE COURT IN JOHNSON V. ZERBST, 304 U.S. 458, 462 - 463 (1938),
SPOKE OF THIS EQUALIZING EFFECT OF THE SIXTH AMENDMENT'S COUNSEL
GUARANTEE: 

"IT EMBODIES A REALISTIC RECOGNITION OF THE OBVIOUS TRUTH THAT THE
AVERAGE DEFENDANT DOES NOT HAVE THE PROFESSIONAL LEGAL SKILL TO PROTECT
HIMSELF WHEN BROUGHT BEFORE A TRIBUNAL WITH POWER TO TAKE HIS LIFE OR
LIBERTY, WHEREIN THE PROSECUTION IS PRESENTED BY EXPERIENCED AND
LEARNED COUNSEL." 

THIS HISTORICAL BACKGROUND SUGGESTS THAT THE CORE PURPOSE OF THE
COUNSEL GUARANTEE WAS TO ASSURE "ASSISTANCE" AT TRIAL, WHEN THE ACCUSED
WAS CONFRONTED WITH BOTH THE INTRICACIES OF THE LAW AND THE ADVOCACY OF
THE PUBLIC PROSECUTOR.  /7/  LATER DEVELOPMENTS HAVE LED THIS COURT TO
RECOGNIZE THAT "ASSISTANCE" WOULD BE LESS THAN MEANINGFUL IF IT WERE
LIMITED TO THE FORMAL TRIAL ITSELF. 

[[HC310'(ORIGINAL DOCUMENT PAGE 310)' 

THIS EXTENSION OF THE RIGHT TO COUNSEL TO EVENTS BEFORE TRIAL HAS
RESULTED FROM CHANGING PATTERNS OF CRIMINAL PROCEDURE AND INVESTIGATION
THAT HAVE TENDED TO GENERATE PRETRIAL EVENTS THAT MIGHT APPROPRIATELY
BE CONSIDERED TO BE PARTS OF THE TRIAL ITSELF.  AT THESE NEWLY EMERGING
AND SIGNIFICANT EVENTS, THE ACCUSED WAS CONFRONTED, JUST AS AT TRIAL,
BY THE PROCEDURAL SYSTEM, OR BY HIS EXPERT ADVERSARY, OR BY BOTH.  IN
WADE, THE COURT EXPLAINED THE PROCESS OF EXPANDING THE COUNSEL
GUARANTEE TO THESE CONFRONTATIONS:     "WHEN THE BILL OF RIGHTS WAS
ADOPTED, THERE WERE NO ORGANIZED POLICE FORCES AS WE KNOW THEM TODAY. 
THE ACCUSED CONFRONTED THE PROSECUTOR AND THE WITNESSES AGAINST HIM,
AND THE EVIDENCE WAS MARSHALLED, LARGELY AT THE TRIAL ITSELF.  IN
CONTRAST, TODAY'S LAW ENFORCEMENT MACHINERY INVOLVES CRITICAL
CONFRONTATIONS OF THE ACCUSED BY THE PROSECUTION AT PRETRIAL
PROCEEDINGS WHERE THE RESULTS MIGHT WELL SETTLE THE ACCUSED'S FATE AND
REDUCE THE TRIAL ITSELF TO A MERE FORMALITY.  IN RECOGNITION OF THESE
REALITIES OF MODERN CRIMINAL PROSECTUION, OUR CASES HAVE CONSTRUED THE
SIXTH AMENDMENT GUARANTEE TO APPLY TO 'CRITICAL' STAGES OF THE
PROCEEDINGS."  388 U.S., AT 224 (FOOTNOTE OMITTED). 

[[HC311'(ORIGINAL DOCUMENT PAGE 311)' 

THE COURT CONSISTENTLY HAS APPLIED A HISTORICAL INTERPRETATION OF
THE GUARANTEE, AND HAS EXPANDED THE CONSTITUTIONAL RIGHT TO COUNSEL
ONLY WHEN NEW CONTEXTS APPEAR PRESENTING THE SAME DANGERS THAT GAVE
BIRTH INITIALLY TO THE RIGHT ITSELF. 

RECENT CASES DEOMONSTRATE THE HISTORICAL METHOD OF THIS EXPANSION. 
IN HAMILTON V. ALABAMA, 368 U.S. 52 (1961), AND IN WHITE V. MARYLAND,
373 U.S. 59 (1963), THE ACCUSED WAS CONFRONTED WITH THE PROCEDURAL
SYSTEM AND WAS REQUIRED, WITH DEFINITE CONSEQUENCES, TO ENTER A PLEA. 
IN MASSIAH V. UNITED STATES, 377 U.S. 201 (1964), THE ACCUSED WAS
CONFRONTED BY PROSECUTING AUTHORITIES WHO OBTAINED, BY RUSE AND IN THE
ABSENCE OF DEFENSE COUNSEL, INCRIMINATING STATEMENTS.  IN COLEMAN V.
ALABAMA, 399 U.S. 1 (1970), THE ACCUSED WAS CONFRONTED BY HIS ADVERSARY
AT A "CRITICAL STAGE" PRELIMINARY HEARING AT WHICH THE UNCOUNSELED
ACCUSED COULD NOT HOPE TO OBTAIN SO MUCH BENEFIT AS COULD HIS SKILLED
ADVERSARY. 

THE ANALOGY BETWEEN THE UNREPRESENTED ACCUSED AT THE PRETRIAL
CONFRONTATION AND THE UNREPRESENTED DEFENDANT AT TRIAL, IMPLICIT IN THE
CASES MENTIONED ABOVE, WAS EXPLICITLY DRAWN IN WADE: 

"THE TRIAL WHICH MIGHT DETERMINE THE ACCUSED'S FATE MAY WELL NOT BE
THAT IN THE COURTROOM BUT THAT AT THE PRETRIAL CONFRONTATION, WITH THE
STATE ALIGNED AGAINST THE ACCUSED UNPROTECTED AGAINST THE OVERREACHING,
INTENTIONAL OR UNINTENTIONAL, AND WITH LITTLE OF NO EFFECTIVE APPEAL
FROM THE JUDGMENT THERE RENDERED BY THE WITNESS -- 'THAT'S THE MAN.'" 
388 U.S., AT 235 - 236  

THROUGHOUT THIS EXPANSION OF THE COUNSEL GUARANTEE TO TRIAL-LIKE
CONFRONTATIONS, THE FUNCTION OF THE LAWYER HAS REMAINED ESSENTIALLY THE
SAME AS HIS FUNCTION AT TRIAL. 

[[HC312'(ORIGINAL DOCUMENT PAGE 312)'  IN ALL CASES CONSIDERED BY
THE COURT, COUNSEL HAS CONTINUED TO ACT AS A SPOKESMAN FOR, OR ADVISOR
TO, THE ACCUSED.  THE ACCUSED'S RIGHT TO THE "ASSISTANCE OF COUNSEL"
HAS MEANT JUST THAT, NAMELY, THE RIGHT OF THE ACCUSED TO HAVE COUNSEL
ACTING AS HIS ASSISTANT.  IN HAMILTON AND WHITE, FOR EXAMPLE, THE COURT
ENVISIONED THE LAWYER AS ADVISING THE ACCUSED ON AVAILABLE DEFENSES IN
ORDER TO ALLOW HIM TO PLEAD INTELLIGENTLY.  368 U.S., AT 54 - 55; 373
U.S., AT 60.  IN MASSIAH COUNSEL COULD HAVE ADVISED HIS CLIENT ON THE
BENEFITS OF THE FIFTH AMENDMENT AND COULD HAVE SHELTERED HIM FROM THE
OVERREACHING OF THE PROSECUTION.  377 U.S., AT 205.  CF. MIRANDA V.
ARIZONA, 384 U.S. 436, 466 (1966).  IN COLEMAN THE SKILL OF THE LAWYER
IN EXAMINING WITNESSES, PROBING FOR EVIDENCE, AND MAKING LEGAL
ARGUMENTS WAS RELIED UPON BY THE COURT TO DEMONSTRATE THAT, IN THE
LIGHT OF THE PURPOSE OF THE PRELIMINARY HEARING UNDER ALABAMA LAW, THE
ACCUSED REQUIRED "ASSISTANCE" AT THAT HEARING.  399 U.S., AT 9. 

THE FUNCTION OF COUNSEL IN RENDERING "ASSISTANCE" CONTINUED AT THE
LINEUP UNDER CONSIDERATION IN WADE AND ITS COMPANION CASES.  ALTHOUGH
THE ACCUSED WAS NOT CONFRONTED THERE WITH LEGAL QUESTIONS, THE LINEUP
OFFERED OPPORTUNITIES FOR PROSECUTING AUTHORITIES TO TAKE ADVANTAGE OF
THE ACCUSED.  COUNSEL WAS SEEN BY THE COURT AS BEING MORE SENSITIVE TO,
AND AWARE OF, SUGGESTIVE INFLUENCES THAN THE ACCUSED HIMSELF, AND AS
BETTER ABLE TO RECONSTRUCT THE EVENTS AT TRIAL.  COUNSEL PRESENT AT
LINEUP WOULD BE ABLE TO REMOVE DISABILITIES OF THE ACCUSED IN PRECISELY
THE SAME FASHION THAT COUNSEL COMPENSATED FOR THE DISABILITIES OF THE
LAYMAN AT TRIAL.  THUS, THE COURT MENTIONED THAT THE ACCUSED'S MEMORY
MIGHT BE DIMMED BY "EMOTIONAL TENSION," THAT THE ACCUSED'S CREDIBILITY
AT TRIAL WOULD BE DIMINISHED BY HIS STATUS AS DEFENDANT, AND THAT THE
ACCUSED MIGHT BE UNABLE TO PRESENT HIS VERSION EFFECTIVELY WITHOUT
GIVING UP HIS PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION. 

[[HC313'(ORIGINAL DOCUMENT PAGE 313)'  UNITED STATES V. WADE, 388
U.S., AT 230 - 231.  IT WAS IN ORDER TO COMPENSATE FOR THESE
DEFICIENCIES THAT THE COURT FOUND THE NEED FOR THE ASSISTANCE OF
COUNSEL. 

THIS REVIEW OF THE HISTORY AND EXPANSION OF THE SIXTH AMENDMENT
COUNSEL GUARANTEE DEMONSTRATES THAT THE TEST UTILIZED BY THE COURT HAS
CALLED FOR EXAMINATION OF THE EVENT IN ORDER TO DETERMINE WHETHER THE
ACCUSED REQUIRED AID IN COPING WITH LEGAL PROBLEMS OR ASSISTANCE IN
MEETING HIS ADVERSARY.  AGAINST THE BACKGROUND OF THIS TRADITIONAL
TEST, WE NOW CONSIDER THE OPINION OF THE COURT OF APPEALS. 

        III 

ALTHOUGH THE COURT OF APPEALS' MAJORITY RECOGNIZED THE ARGUMENT THAT
"A MAJOR PURPOSE BEHIND THE RIGHT TO COUNSEL IS TO PROTECT THE
DEFENDANT FROM ERRORS THAT HE HIMSELF MIGHT MAKE IF HE APPEARED IN
COURT ALONE," THE COURT CONCLUDED THAT "OTHER FORMS OF PREJUDICE,"
MENTIONED AND RECOGNIZED IN WADE, COULD ALSO GIVE RISE TO A RIGHT TO
COUNSEL.  149 U.S. APP. D. C., AT 10, 461 F.2D, AT 101.  THESE FORMS OF
PREJUDICE WERE FELT BY THE COURT TO FLOW FROM THE POSSIBILITIES FOR
MISTAKEN IDENTIFICATION INHERENT IN THE PHOTOGRAPHIC DISPLAY.  /8/ 

WE CONCLUDE THAT THE DANGERS OF MISTAKEN IDENTIFICATION, MENTIONED
IN WADE, WERE REMOVED FROM CONTEXT BY THE COURT OF APPEALS AND WERE
INCORRECTLY UTILIZED AS A SUFFICIENT BASIS FOR REQUIRING COUNSEL. 

[[HC314'(ORIGINAL DOCUMENT PAGE 314)'  ALTHOUGH WADE DID DISCUSS
POSSIBILITIES FOR SUGGESTION AND THE DIFFICULTY FOR RECONSTRUCTING
SUGGESTIVITY, THIS DISCUSSION OCCURRED ONLY AFTER THE COURT HAD
CONCLUDED THAT THE LINEUP CONSTITUTED A TRIAL-LIKE CONFRONTATION,
REQUIRING THE "ASSISTANCE OF COUNSEL" TO PRESERVE THE ADVERSARY PROCESS
BY COMPENSATING FOR ADVANTAGES OF THE PROSECUTING AUTHORITIES. 

THE ABOVE DISCUSSION OF WADE HAS SHOWN THAT THE TRADITIONAL SIXTH
AMENDMENT TEST EASILY ALLOWED EXTENSION OF COUNSEL TO A LINEUP.  THE
SIMILARITY TO TRIAL WAS APPARENT, AND COUNSEL WAS NEEDED TO RENDER
"ASSISTANCE" IN COUNTERBALANCING ANY "OVERREACHING" BY THE
PROSECUTION. 

AFTER THE COURT IN WADE HELD THAT A LINEUP CONSTITUTED A TRIAL-LIKE
CONFRONTATION REQUIRING COUNSEL, A MORE DIFFICULT ISSUE REMAINED IN THE
CASE FOR CONSIDERATION.  THE SAME CHANGES IN LAW ENFORCEMENT THAT LED
TO LINEUPS AND PRETRIAL HEARINGS ALSO GENERATED OTHER EVENTS AT WHICH
THE ACCUSED WAS CONFRONTED BY THE PROSECUTION.  THE GOVERNMENT HAD
ARGUED IN WADE THAT IF COUNSEL WAS REQUIRED AT A LINEUP, THE SAME
FORCEFUL CONSIDERATIONS WOULD MANDATE COUNSEL AT OTHER PREPARATORY
STEPS IN THE "GATHERING OF THE PROSECUTION'S EVIDENCE," SUCH AS, FOR
PARTICULAR EXAMPLE, THE TAKING OF FINGERPRINTS OR BLOOD SAMPLES.  388
U.S., AT 227. 

[[HC315'(ORIGINAL DOCUMENT PAGE 315)' 

THE COURT CONCLUDED THAT THERE WERE DIFFERENCES.  RATHER THAN
DISTINGUISHING THESE SITUATIONS FROM THE LINEUP IN TERMS OF THE NEED
FOR COUNSEL TO ASSURE AN EQUAL CONFRONTATION AT THE TIME, THE COURT
RECOGNIZED THAT THERE WERE TIMES WHEN THE SUBSEQUENT TRIAL WOULD CURE A
ONE-SIDED CONFRONTATION BETWEEN PROSECUTING AUTHORITIES AND THE
UNCOUNSELED DEFENDANT.  IN OTHER WORDS, SUCH STAGES WERE NOT
"CRITICAL."  REFERRING TO FINGERPRINTS, HAIR, CLOTHING, AND OTHER BLOOD
SAMPLES, THE COURT EXPLAINED: 

"KNOWLEDGE OF THE TECHNIQUES OF SCIENCE AND TECHNOLOGY IS
SUFFICIENTLY AVAILABLE, AND THE VARIABLES IN TECHNIQUES FEW ENOUGH,
THAT THE ACCUSED HAS THE OPPORTUNITY FOR A MEANINGFUL CONFRONTATION OF
THE GOVERNMENT'S CASE AT TRIAL THROUGH THE ORDINARY PROCESSES OF CROSS
EXAMINATION OF THE GOVERNMENT'S EXPERT WITNESSES AND THE PRESENTATION
OF THE EVIDENCE OF HIS OWN EXPERTS."  388 U.S., AT 227 - 228. 

THE STRUCTURE OF WADE, VIEWED IN LIGHT OF THE CAREFUL LIMITATION OF
THE COURT'S LANGUAGE TO "CONFRONTATIONS,"  /9/  MAKES IT CLEAR THAT
LACK OF SCIENTIFIC PRECISION AND INABILITY TO RECONSTRUCT AN EVENT ARE
NOT THE TESTS FOR REQUIRING COUNSEL IN THE FIRST INSTANCE. 

[[HC316'(ORIGINAL DOCUMENT PAGE 316)'  THESE ARE, INSTEAD, THE TESTS
TO DETERMINE WHETHER CONFRONTATION WITH COUNSEL AT TRIAL CAN SERVE AS A
SUBSTITUTE FOR COUNSEL AT THE PRETRIAL CONFRONTATION.  IF ACCURATE
RECONSTRUCTION IS POSSIBLE, THE RISKS INHERENT IN ANY CONFRONTATION
STILL REMAIN, BUT THE OPPORTUNITY TO CURE DEFECTS AT TRIAL CAUSES THE
CONFRONTATION TO CEASE TO BE "CRITICAL."  THE OPINION OF THE COURT EVEN
INDICATED THAT CHANGES IN PROCEDURE MIGHT CAUSE A LINEUP TO CEASE TO BE
A "CRITICAL"  CONFRONTATION: 

     "LEGISLATIVE OR OTHER REGULATIONS, SUCH AS THOSE OF LOCAL

  POLICE DEPARTMENTS, WHICH ELIMINATE THE RISKS OF ABUSE AND

  UNINTENTIONAL SUGGESTION AT LINEUP PROCEEDINGS AND THE

  IMPEDIMENTS TO MEANINGFUL CONFRONTATION AT TRIAL MAY ALSO REMOVE

  THE BASIS FOR REGARDING THE STAGE AS 'CRITICAL.'"  388 U.S., AT

  239 (FOOTNOTE OMITTED). 

SEE, HOWEVER, ID., AT 262 N. (OPINION OF FORTAS, J.). 

THE COURT OF APPEALS CONSIDERED ITS ANALYSIS COMPLETE AFTER IT
DECIDED THAT A PHOTOGRAPHIC DISPLAY LACKS THE SCIENTIFIC PRECISION AND
EASE OF ACCURATE RECONSTRUCTION AT TRIAL.  THAT ANALYSIS, UNDER WADE,
HOWEVER, MERELY CARRIES ONE TO THE POINT WHERE ONE MUST ESTABLISH THAT
THE TRIAL ITSELF CAN PROVIDE NO SUBSTITUTE FOR COUNSEL IF A PRETRIAL
CONFRONTATION IS CONDUCTED IN THE ABSENCE OF COUNSEL.  JUDGE FRIENDLY,
WRITING FOR THE SECOND CIRCUIT IN UNITED STATES V. BENNETT, 409 F.2D
888 (1969), RECOGNIZED THAT THE "CRITICALITY" TEST OF WADE, IF APPLIED
OUTSIDE THE CONFRONTATION CONTEXT, WOULD RESULT IN DRASTIC EXPANSION OF
THE RIGHT TO COUNSEL: 

"NONE OF THE CLASSICAL ANALYSES OF THE ASSISTANCE TO BE GIVEN BY
COUNSEL, JUSTICE SUTHERLAND'S IN POWELL V. ALABAMA . . . AND JUSTICE
BLACK'S IN JOHNSON V. ZERBST . . . AND GIDEON V. WAINWRIGHT . . .
SUGGESTS THAT COUNSEL MUST BE PRESENT WHEN THE PROSECUTION IS
INTERROGATING WITNESSES IN THE DEFENDANT'S ABSENCE EVEN WHEN, AS HERE,
THE DEFENDANT IS UNDER ARREST; COUNSEL IS RATHER TO BE PROVIDED TO
PREVENT THE DEFENDANT HIMSELF FROM FALLING INTO TRAPS DEVISED BY A
LAWYER ON THE OTHER SIDE AND TO SEE TO IT THAT ALL AVAILABLE DEFENSES
ARE PROFFERED. 

[[HC317'(ORIGINAL DOCUMENT PAGE 317)'

  MANY OTHER ASPECTS OF THE PROSECUTION'S INTERVIEWS WITH A VICTIM
OR A WITNESS TO A CRIME

  AFFORD JUST AS MUCH OPPORTUNITY FOR UNDUE SUGGESTION AS THE
DISPLAY OF PHOTOGRAPHS; SO, TOO,

DO THE DEFENSE'S INTERVIEWS, NOTABLY WITH ALIBI WITNESSES."  ID., AT
899 - 900. 

WE NOW UNDERTAKE THE THRESHHOLD ANALYSIS THAT MUST BE ADDRESSED. 

        IV 

A SUBSTANTIAL DEPARTURE FROM THE HISTORICAL TEST WOULD BE NECESSARY
IF THE SIXTH AMENDMENT WERE INTERPRETED TO GIVE ASH A RIGHT TO COUNSEL
AT THE PHOTOGRAPHIC IDENTIFICATION IN THIS CASE.  SINCE THE ACCUSED
HIMSELF IS NOT PRESENT AT THE TIME OF THE PHOTOGRAPHIC DISPLAY, AND
ASSERTS NO RIGHT TO BE PRESENT, BRIEF FOR RESPONDENT 40, NO POSSIBILITY
ARISES THAT THE ACCUSED MIGHT BE MISLED BY HIS LACK OF FAMILIARITY WITH
THE LAW OR OVERPOWERED BY HIS PROFESSIONAL ADVERSARY.  SIMILARLY, THE
COUNSEL GUARANTEE WOULD NOT BE USED TO PRODUCE EQUALITY IN A TRIAL-LIKE
ADVERSARY CONFRONTATION.  RATHER, THE GUARANTEE WAS USED BY THE COURT
OF APPEALS TO PRODUCE CONFRONTATION AT AN EVENT THAT PREVIOUSLY WAS NOT
ANALOGOUS TO AN ADVERSARY TRIAL. 

EVEN IF WE WERE WILLING TO VIEW THE COUNSEL GUARANTEE IN BROAD TERMS
AS A GENERALIZED PROTECTION OF THE ADVERSARY PROCESS, WE WOULD BE
UNWILLING TO GO SO FAR AS TO EXTEND THE RIGHT TO A PORTION OF THE
PROSECUTOR'S TRIAL-PREPARATION INTERVIEWS WITH WITNESSES.  ALTHOUGH
PHOTOGRAPHY IS RELATIVELY NEW, THE INTERVIEWING OF WITNESSES BEFORE
TRIAL IS A PROCEDURE THAT PREDATES THE SIXTH AMENDMENT. 

[[HC318'(ORIGINAL DOCUMENT PAGE 318)'  IN ENGLAND IN THE 16TH AND
17TH CENTURIES COUNSEL REGULARLY INTERVIEWED WITNESSES BEFORE TRIAL.  9
W. HOLDSWORTH, HISTORY OF ENGLISH LAW 226 - 228 (1926).  THE
TRADITIONAL COUNTERBALANCE IN THE AMERICAN ADVERSARY SYSTEM FOR THESE
INTERVIEWS ARISES FROM THE EQUAL ABILITY OF DEFENSE COUNSEL TO SEEK AND
INTERVIEW WITNESSES HIMSELF. 

THAT ADVERSARY MECHANISM REMAINS AS EFFECTIVE FOR A PHOTOGRAPHIC
DISPLAY AS FOR OTHER PARTS OF PRETRIAL INTERVIEWS.  /10/  NO GREATER
LIMITATIONS ARE PLACED ON DEFENSE COUNSEL IN CONSTRUCTING DISPLAYS,
SEEKING WITNESSES, AND CONDUCTING PHOTOGRAPHIC IDENTIFICATIONS THAN
THOSE APPLICABLE TO THE PROSECUTION.  /11/  SELECTION OF THE PICTURE OF
A PERSON OTHER THAN THE ACCUSED, OR THE INABILITY OF A WITNESS TO MAKE
ANY SELECTION, WILL BE USEFUL TO THE DEFENSE IN PRECISELY THE SAME
MANNER THAT THE SELECTION OF A PICTURE OF THE DEFENDANT WOULD BE USEFUL
TO THE PROSECUTION.  /12/ 

[[HC319'(ORIGINAL DOCUMENT PAGE 319)'  IN THIS VERY CASE, FOR
EXAMPLE, THE INITIAL TENDER OF THE PHOTOGRAPHIC DISPLAY WAS BY BAILEY'S
COUNSEL, WHO SOUGHT TO DEMONSTRATE THAT THE WITNESS HAD FAILED TO MAKE
A PHOTOGRAPHIC IDENTIFICATION.  ALTHOUGH WE DO NOT SUGGEST THAT
EQUALITY OF ACCESS TO PHOTOGRAPHS REMOVES ALL POTENTIAL FOR ABUSE, /13/
IT DOES REMOVE ANY INEQUALITY IN THE ADVERSARY PROCESS ITSELF AND
THEREBY FULLY SATISFIES THE HISTORICAL SPIRIT OF THE SIXTH AMENDMENT'S
COUNSEL GUARANTEE.     THE ARGUMENT HAS BEEN ADVANCED THAT REQUIRING
COUNSEL MIGHT COMPEL THE POLICE TO OBSERVE MORE SCIENTIFIC PROCEDURES
OR MIGHT ENCOURAGE THEM TO UTILIZE CORPOREAL RATHER THAN PHOTOGRAPHIC
DISPLAYS.  /14/  THIS COURT HAS RECOGNIZED THAT IMPROVED PROCEDURES CAN
MINIMIZE THE DANGERS OF SUGGESTION. 

[[HC320'(ORIGINAL DOCUMENT PAGE 320)'  SIMMONS V. UNITED STATES, 390
U.S. 377, 386 N. 6 (1968).  COMMENTATORS HAVE ALSO PROPOSED MORE
ACCURATE TECHNIQUES.  /15/ 

PRETRIAL PHOTOGRAPHIC IDENTIFICATIONS, HOWEVER, ARE HARDLY UNIQUE IN
OFFERING POSSIBILITIES FOR THE ACTIONS OF THE PROSECUTOR UNFAIRLY TO
PREJUDICE THE ACCUSED.  EVIDENCE FAVORABLE TO THE ACCUSED MAY BE
WITHHELD; TESTOMONY OF WITNESSES MAY BE MANIPULATED; THE RESULTS OF
LABORATORY TESTS MAY BE CONTRIVED.  IN MANY WAYS THE PROSECUTOR, BY
ACCIDENT OR BY DESIGN, MAY IMPROPERLY SUBVERT THE TRIAL.  THE PRIMARY
SAFEGUARD AGAINST ABUSES OF THIS KIND IS THE ETHICAL RESPONSIBILITY OF
THE PROSECUTOR, /16/  WHO, AS SO OFTEN HAS BEEN SAID, MAY "STRIKE HARD
BLOWS" BUT NOT "FOUL ONES."  BERGER V. UNITED STATES, 295 U.S. 78, 88
(1935); BRADY V. MARYLAND, 373 U.S. 83, 87 - 88 (1963).  IF THAT
SAFEGUARD FAILS, REVIEW REMAINS AVAILABLE UNDER DUE PROCESS STANDARDS. 
SEE GIGLIO V. UNITED STATES, 405 U.S. 150 (1972); MOONEY V. HOLOHAN,
294 U.S. 103, 112 (1935); MILLER V. PATE, 386 U.S. 1 (1967); CHAMBERS
V. MISSISSIPPI, 410 U.S. 284 (1973).  THESE SAME SAFEGUARDS APPLY TO
MISUSE OF PHOTOGRAPHS.  SEE SIMMONS V. UNITED STATES, 390 U.S., AT
384. 

WE ARE NOT PERSUADED THAT THE RISKS INHERENT IN THE USE OF
PHOTOGRAPHIC DISPLAYS ARE SO PERNICIOUS THAT AN EXTRAORDINARY SYSTEM OF
SAFEGUARDS IS REQUIRED. 

[[HC321'(ORIGINAL DOCUMENT PAGE 321)' 

WE HOLD, THEN, THAT THE SIXTH AMENDMENT DOES NOT GRANT THE RIGHT TO
COUNSEL AT PHOTOGRAPHIC DISPLAYS CONDUCTED BY THE GOVERNMENT FOR THE
PURPOSE OF ALLOWING A WITNESS TO ATTEMPT AN IDENTIFICATION OF THE
OFFENDER.  THIS HOLDING REQUIRES REVERSAL OF THE JUDGMENT OF THE COURT
OF APPEALS.  ALTHOUGH RESPONDENT ASH HAS URGED US TO EXAMINE THIS
PHOTOGRAPHIC DISPLAY UNDER THE DUE PROCESS STANDARD ENUNCIATED IN
SIMMONS V. UNITED STATES, 390 U.S., AT 384, THE COURT OF APPEALS,
EXPRESSING THE VIEW THAT ADDITIONAL FINDINGS WOULD BE NECESSARY,
REFUSED TO DECIDE THE ISSUE.  149 U.S. APP. D. C., AT 7, 461 F.2D, AT
98.  WE DECLINE TO CONSIDER THIS QUESTION ON THIS RECORD IN THE FIRST
INSTANCE.  IT REMAINS OPEN, OF COURSE, ON THE COURT OF APPEALS'  REMAND
TO THE DISTRICT COURT. 

              REVERSED AND REMANDED. 

/1/  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE
RIGHT . . . TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

/2/  UNITED STATES V. BENNETT, 409 F.2D 888, 898 - 900 (CA2), CERT.
DENIED SUB NOM. HAYWOOD V. UNITED STATES, 396 U.S. 852 (1969); UNITED
STATES EX REL. REED V. ANDERSON, 461 F.2D 739 (CA3 1972) (EN BANC);
UNITED STATES V. COLLINS, 416 F.2D 696 (CA4 1969), CERT. DENIED, 396
U.S. 1025 (1970); UNITED STATES V. BALLARD, 423 F.2D 127 (CA5 1970);
UNITED STATES V. SERIO, 440 F.2D 827, 829 - 830 (CA6 1971); UNITED
STATES V. ROBINSON, 406 F.2D 64, 67 (CA7), CERT. DENIED, 395 U.S. 926
(1969); UNITED STATES V. LONG, 449 F.2D 288, 301 - 302 (CA8 1971),
CERT. DENIED, 405 U.S. 974 (1972); ALLEN V. RHAY, 431 F.2D 1160, 1166 -
1167 (CA9 1970); MCGEE V. UNITED STATES, 402 F.2D 434, 436 (CA10 1968),
CERT. DENIED, 394 U.S. 908 (1969).  THE EN BANC DECISION OF THE THIRD
CIRCUIT IN ANDERSON OVERRULED IN PART A PANEL DECISION IN UNITED STATES
V. ZEILER, 427 F.2D 1305 (CA3 1970). 

THE QUESTION HAS ALSO PRODUCED CONFLICTING DECISIONS IN STATE
COURTS.  THE MAJORITY VIEW, AS IN THE COURTS OF APPEALS, REJECTS THE
CLAIMED RIGHT TO COUNSEL.  SEE, E. G., MCGHEE V. STATE, 48 ALA. APP.
330, 264 SO.2D 560 (ALA. CRIM. APP. 1972); STATE V. YEHLING, 108 ARIZ.
323, 498 P.2D 145 (1972); PEOPLE V. LAWRENCE, 4 CAL.3D 273, 481 P.2D
212 (1971), CERT. DENIED, 407 U.S. 909 (1972); REED V. STATE, -- DEL. -
, 281 A.2D 142 (1971); PEOPLE V. HOLIDAY, 47 ILL.2D 300, 265 N. E. 2D
634 (1970); BALDWIN V. STATE, 5 MD. APP. 22, 245 A.2D 98 (1968)
(DICTA); COMMONWEALTH V. ROSS, -- MASS. --, 282 N. E. 2D 70 (1972),
VACATED ON OTHER GROUNDS AND REMANDED, 410 U.S. 901 (1973); STEVENSON
V. STATE, 244 SO.2D 30 (MISS.  1971); STATE V. BROOKINS, 468 S.W.2D 42
(MO. 1971)(DICTA); PEOPLE V. COLES, 34 APP. DIV.2D 1051, 312 N. Y. S.
2D 621 (1970) (DICTA); STATE V. MOSS, 187 NEB. 391, 191 N.W.2D 543
(1971); DREWRY V. COMMONWEALTH, 213 VA. 186, 191 S. E. 2D 178 (1972);
STATE V. NETTLES, 81 WASH. 2D 205, 500 P.2D 752 (1972); KAIN V. STATE,
48 WIS. 2D 212, 179 N. W. 2D 777 (1970).  CF. STATE V. ACCOR, 277 N. C.
65, 175 S. E. 2D 583 (1970).  SEVERAL STATE COURTS, HOWEVER, HAVE
GRANTED A RIGHT TO COUNSEL AT PHOTOGRAPHIC IDENTIFICATIONS.  SEE, E.
G., COX V. STATE, 219 SO. 2D 762 (FLA. APP. 1969) (VIDEO TAPES); PEOPLE
V. ANDERSON, 389 MICH. 155, 205 N. W. 2D 461 (1973); THOMPSON V. STATE,
85 NEV. 134, 451 P.2D 704, CERT. DENIED, 396 U.S. 893 (1969);
COMMONWEALTH V. WHITING, 439 PA. 205, 266 A.2D 738, CERT. DENIED, 400
U.S. 919 (1970). 

/3/  RESPONDENT ASH DOES NOT ASSERT A RIGHT TO COUNSEL AT THE BLACK
AND-WHITE PHOTOGRAPHIC DISPLAY IN FEBRUARY 1966 BECAUSE HE RECOGNIZES
THAT KIRBY V. ILLINOIS, 406 U.S. 682 (1972), FORECLOSES APPLICATION OF
THE SIXTH AMENDMENT TO EVENTS BEFORE THE INITIATION OF ADVERSARY
CRIMINAL PROCEEDINGS.  TR. OR ORAL ARG. 21 - 22; BRIEF FOR RESPONDENT
32 N. 21. 

/4/  AT THIS HEARING THE BLACK-AND-WHITE AND COLOR PHOTOGRAPHS WERE
INTRODUCED AS EXHIBITS.  APP. 44.  THE FBI AGENTS WHO CONDUCTED THE
PRETRIAL DISPLAYS WERE CALLED AS WITNESSES AND WERE CROSS EXAMINED
FULLY.  APP. 10, 28.  TWO OF THE FOUR WITNESSES WHO WERE EXPECTED TO
MAKE IN-COURT IDENTIFICATIONS ALSO TESTIFIED AND WERE CROSS-EXAMINED
CONCERNING THE PHOTOGRAPHIC IDENTIFICATIONS.  APP. 55, 65. 

/5/  THE MAJORITY OF THE COURT OF APPEALS CONCLUDED THAT ASH'S
COUNSEL PROPERLY HAD PRESERVED HIS OBJECTION TO INTRODUCTION OF THE
PHOTOGRAPHS.  149 U.S. APP. D. C., AT 6 N. 6, 461 F.2D, AT 97 N. 6. 
ALTHOUGH THE CONTRARY VIEW OF THE DISSENTING JUDGES HAS BEEN NOTED HERE
BY THE GOVERNMENT, THE MAJORITY'S RULING ON THIS ISSUE IS NOT ASSERTED
BY THE GOVERNMENT AS A BASIS FOR REVERSAL.  PET. FOR CERT. 4 N. 5;
BRIEF FOR UNITED STATES 6 N. 6.  UNDER THESE CIRCUMSTANCES, WE ARE NOT
INCLINED TO DISTURB THE RULING OF THE COURT OF APPEALS ON THIS CLOSE
PROCEDURAL QUESTION.  APP. 104, 126 - 131. 

/6/  ALTHOUGH THE ENGLISH LIMITATION WAS NOT EXPRESSLY REJECTED
UNTIL 1836, THE RULE APPEARS TO HAVE BEEN RELAXED IN PRACTICE.  9 W.
HOLDSWORTH, HISTORY OF ENGLISH LAW 235 (1926); 4 W. BLACKSTONE,
COMMENTARIES *355 - 356. 

/7/  SIMILAR CONCERNS EVENTUALLY LED TO ABANDONMENT OF THE COMMON
LAW RULE IN ENGLAND.  THAT RULE ORIGINATED AT A TIME WHEN COUNSEL WAS
SAID TO BE "HARDLY NECESSARY" BECAUSE EXPERT KNOWLEDGE OF THE LAW WAS
NOT REQUIRED AT TRIAL AND SYSTEMATIC EXAMINATION OF WITNESSES HAD NOT
YET DEVELOPED.  T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 410
(4TH ED. 1948). 

CONFRONTATION WITH LEGAL TECHNICALITIES BECAME COMMON AT ENGLISH
TRIALS WHEN COMPLEX RULES DEVELOPED FOR ATTACKING THE INDICTMENT. 
IBID.  THE ENGLISH RESPONSE WAS NOT AN UNLIMITED RIGHT TO COUNSEL,
HOWEVER, BUT WAS RATHER A RIGHT FOR COUNSEL TO ARGUE ONLY LEGAL
QUESTIONS.  SEE POWELL V. ALABAMA, 287 U.S. 45, 60 (1932).  A PLEA IN
ABATEMENT DIRECTED AT INSUFFICIENCY OF THE INDICTMENT, FOR EXAMPLE,
ALLOWED A PRISONER TO "PRAY COUNSEL TO BE ASSIGNED TO HIM TO MANAGE HIS
EXCEPTIONS AND TAKE MORE."  2 M. HALE, PLEAS OF THE CROWN 236 (1736). 

CONFRONTATION WITH A PROFESSIONAL PROSECUTOR AROSE IN ENGLISH
TREASON TRIALS BEFORE IT APPEARED IN ORDINARY CRIMINAL TRIALS.  SEE 1
J. STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 348 - 350 (1883). 
IN 1695 THIS IMBALANCE IN THE ADVERSARY PROCESS WAS CORRECTED BY A
STATUTE GRANTING PRISONERS THE RIGHT TO COUNSEL AT TREASON TRIALS.  7
WM. 3, C. 3 (1695).  HAWKINS EXPLAINED THAT THE PROFESSIONAL ABILITY OF
KING'S COUNSEL MOTIVATED THIS REFORM BECAUSE IT HAD "BEEN FOUND BY
EXPERIENCE THAT PRISONERS HAVE BEEN OFTEN UNDER GREAT DISADVANTAGES
FROM THE WANT OF COUNSEL, IN PROSECUTIONS OF HIGH TREASON AGAINST THE
KING'S PERSON, WHICH ARE GENERALLY MANAGED FOR THE CROWN WITH GREATER
SKILL AND ZEAL THAN ORDINARY PROSECUTIONS . . . ."  2 W. HAWKINS, PLEAS
OF THE CROWN 566 (LEACH ED. 1787).  THE 1695 STATUTE WEAKENED THE
ENGLISH RULE AND, AFTER A CENTURY OF NARROWING PRACTICAL APPLICATION,
SEE N. 6, SUPRA, THE RULE WAS FINALLY ABROGATED BY STATUTE IN 1836. 
THE TRIALS FOR FELONY ACT, 6 & 7 WM. 4, C. 114 (1836). 

/8/  "(THE DANGERS OF MISTAKEN IDENTIFICATION FROM UNCOUNSELED
LINEUP IDENTIFICATIONS SET FORTH IN WADE ARE APPLICABLE IN LARGE
MEASURE TO PHOTOGRAPHIC AS WELL AS CORPOREAL IDENTIFICATIONS.  THESE
INCLUDE, NOTABLY, THE POSSIBILITIES OF SUGGESTIVE INFLUENCE OR MISTAKE
- PARTICULARLY WHERE WITNESSES HAD LITTLE OR NO OPPORTUNITY FOR
DETAILED OBSERVATION DURING THE CRIME; THE DIFFICULTY OF RECONSTRUCTING
SUGGESTIVITY -- EVEN GREATER WHEN THE DEFENDANT IS NOT EVEN PRESENT;
THE TENDENCY OF A WITNESS'S IDENTIFICATION, ONCE GIVEN UNDER THESE
CIRCUMSTANCES, TO BE FROZEN.  WHILE THESE DIFFICULTIES MAY BE SOMEWHAT
MITIGATED BY PRESERVING THE PHOTOGRAPH SHOWN, IT MAY ALSO BE SAID THAT
A PHOTOGRAPH CAN PRESERVE THE RECORD OF A LINEUP; YET THIS DOES NOT
JUSTIFY A LINEUP WITHOUT COUNSEL.  THE SAME MAY BE SAID OF THE
OPPORTUNITY TO EXAMINE THE PARTICIPANTS AS TO WHAT WENT ON IN THE
COURSE OF THE IDENTIFICATION, WHETHER AT LINEUP OR ON PHOTOGRAPH. 
SOMETIMES THIS MAY SUFFICE TO BRING OUT ALL PERTINENT FACTS, EVEN AT A
LINEUP, BUT THIS WOULD NOT SUFFICE UNDER WADE TO OFFSET THE
CONSTITUTIONAL INFRINGEMENT WROUGHT BY PROCEEDING WITHOUT COUNSEL.  THE
PRESENCE OF COUNSEL AVOIDS POSSIBILITIES OF SUGGESTIVENESS IN THE
MANNER OF PRESENTATION THAT ARE OTHERWISE INERADICABLE."  149 U.S. APP.
D. C., AT 9 - 10, 461 F.2D, AT 100 - 101. 

/9/  THE COURT RATHER NARROWLY DEFINED THE ISSUES UNDER
CONSIDERATION: 

"THE PRETRIAL CONFRONTATION FOR PURPOSE OF IDENTIFICATION MAY TAKE
THE FORM OF A LINEUP, ALSO KNOWN AS AN 'IDENTIFICATION PARADE'  OR
'SHOWUP,' AS IN THE PRESENT CASE, OR PRESENTATION OF THE SUSPECT ALONE
TO THE WITNESS, AS IN STOVALL V. DENNO, SUPRA.  IT IS OBVIOUS THAT
RISKS OF SUGGESTION ATTEND EITHER FORM OF CONFRONTATION . . . . BUT AS
IS THE CASE WITH SECRET INTERROGATIONS, THERE IS SERIOUS DIFFICULTY IN
DEPICTING WHAT TRANSPIRES AT LINEUPS AND OTHER FORMS OF IDENTIFICATION
CONFRONTATIONS."  UNITED STATES V. WADE, 388 U.S. 218, 229 - 230 (1967)
(EMPHASIS ADDED). 

THE PHOTOGRAPHIC IDENTIFICATION COULD HARDLY HAVE BEEN OVERLOOKED BY
INADVERTENCE SINCE THE GOVERNMENT STRESSED THE SIMILARITY BETWEEN
LINEUPS AND PHOTOGRAPHIC IDENTIFICATIONS.  BRIEF FOR UNITED STATES IN
WADE, NO. 334, O. T. 1966, PP. 7, 14, 19, 24. 

/10/  DUPLICATION BY DEFENSE COUNSEL IS A SAFEGUARD THAT NORMALLY IS
NOT AVAILABLE WHEN A FORMAL CONFRONTATION OCCURS.  DEFENSE COUNSEL HAS
NO STATUTORY AUTHORITY TO CONDUCT A PRELIMINARY HEARING, FOR EXAMPLE,
AND DEFENSE COUNSEL WILL GENERALLY BE PREVENTED BY PRACTICAL
CONSIDERATIONS FROM CONDUCTING HIS OWN LINEUP.  EVEN IN SOME
CONFRONTATIONS, HOWEVER, THE POSSIBILITY OF DUPLICATION MAY BE
IMPORTANT.  THE COURT NOTED THIS IN HOLDING THAT THE TAKING OF
HANDWRITING EXEMPLARS DID NOT CONSTITUTE A "CRITICAL STAGE": 

"IF FOR SOME REASON, AN UNREPRESENTATIVE EXEMPLAR IS TAKEN, THIS CAN
BE BROUGHT OUT AND CORRECTED THROUGH THE ADVERSARY PROCESS AT TRIAL
SINCE THE ACCUSED CAN MAKE AN UNLIMITED NUMBER OF ADDITIONAL EXEMPLARS
FOR ANALYSIS AND COMPARISON BY GOVERNMENT AND DEFENSE HANDWRITING
EXPERTS."  GILBERT V. CALIFORNIA, 388 U.S. 263, 267 (1967). 

/11/  WE DO NOT SUGGEST, OF COURSE, THAT DEFENSE COUNSEL HAS ANY
GREATER FREEDOM THAN THE PROSECUTION TO ABUSE THE PHOTOGRAPHIC
IDENTIFICATION.  EVIDENCE OF PHOTOGRAPHIC IDENTIFICATIONS CONDUCTED BY
THE DEFENSE MAY BE EXCLUDED AS UNRELIABLE UNDER THE SAME STANDARDS THAT
WOULD BE APPLIED TO UNRELIABLE IDENTIFICATIONS CONDUCTED BY THE
GOVERNMENT. 

/12/  THE COURT OF APPEALS DEEMED IT SIGNIFICANT THAT A PHOTOGRAPHIC
IDENTIFICATION IS ADMISSIBLE AS SUBSTANTIVE EVIDENCE, WHEREAS OTHER
PARTS OF INTERVIEWS MAY BE INTRODUCED ONLY FOR IMPEACHMENT.  149 U.S.
APP. D. C., AT 10, 461 F.2D, AT 101.  IN THIS CASE DEFENSE COUNSEL FOR
BAILEY INTRODUCED THE INABILITY TO IDENTIFY, AND THAT WAS RECEIVED INTO
EVIDENCE.  THUS DEFENSE COUNSEL STILL RECEIVED BENEFITS EQUIVALENT TO
THOSE AVAILABLE TO THE PROSECUTION.  ALTHOUGH DEFENSE COUNSEL MAY BE
CONCERNED THAT REPEATED PHOTOGRAPHIC DISPLAYS CONTAINING THE ACCUSED'S
PICTURE AS THE ONLY COMMON CHARACTERISTIC WILL TEND TO PROMOTE
IDENTIFICATION OF THE ACCUSED, THE DEFENSE HAS OTHER BALANCING DEVICES
AVAILABLE TO IT, SUCH AS THE USE OF A SUFFICIENTLY LARGE NUMBER OF
PHOTOGRAPHS TO COUNTERACT THIS POSSIBILITY. 

/13/  ALTHOUGH THE RELIABILITY OF IN-COURT IDENTIFICATIONS AND THE
EFFECTIVENESS OF IMPEACHMENT MAY BE IMPROVED BY EQUALITY OF ACCESS, WE
DO NOT SUGGEST THAT THE PROSECUTION'S PHOTOGRAPHIC IDENTIFICATION WOULD
BE MORE EASILY RECONSTRUCTED AT TRIAL SIMPLY BECAUSE DEFENSE COULSEL
COULD CONDUCT HIS OWN PHOTOGRAPHIC DISPLAY.  BUT, AS WE HAVE EXPLAINED,
SUPRA, AT 315 - 316, THE POSSIBILITY OF PERFECT RECONSTRUCTION IS
RELEVANT TO THE EVALUATION OF SUBSTITUTES FOR COUNSEL, NOT TO THE
INITIAL DESIGNATION OF AN EVENT AS A "CRITICAL STAGE." 

/14/  SOBEL, ASSAILING THE IMPERMISSIBLE SUGGESTION: EVOLVING
LIMITATIONS ON THE ABUSE OF PRE-TRIAL CRIMINAL IDENTIFICATION METHODS,
38 BROOKLYN L. REV. 261, 299 (1971); COMMENT, 43 N. Y. U. L. REV. 1019,
1022 (1968); NOTE, 2 RUTGERS CAMDEN L. J. 347, 359 (1970); NOTE, 21
SYRACUSE L. REV. 1235, 1241 - 1242 (1970).  A VARIANT OF THIS ARGUMENT
IS THAT PHOTOGRAPHIC IDENTIFICATIONS MAY BE USED TO CIRCUMVENT THE NEED
FOR COUNSEL AT LINEUPS.  BRIEF FOR RESPONDENT 44 - 45.     /15/  E. G.,
P. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 77 - 85 (1965);
SOBEL, SUPRA, N. 14, AT 309 - 310; COMMENT, 56 IOWA L. REV. 408, 420 -
421 (1970). 

/16/  THROUGHOUT A CRIMINAL PROSECUTION THE PROSECUTOR'S ETHICAL
RESPONSIBILITY EXTENDS, OF COURSE, TO SUPERVISION OF ANY CONTINUING
INVESTIGATION OF THE CASE.  BY PRESCRIBING PROCEDURES TO BE USED BY HIS
AGENTS AND BY SCREENING THE EVIDENCE BEFORE TRIAL WITH A VIEW TO
ELIMINATING UNRELIABLE IDENTIFICATIONS, THE PROSECUTOR IS ABLE TO
MINIMIZE ABUSE IN PHOTOGRAPHIC DISPLAYS EVEN IF THEY ARE CONDUCTED IN
HIS ABSENCE. 

[[DOP 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT. 

THE ISSUE IN THE PRESENT CASE IS WHETHER, UNDER THE SIXTH AMENDMENT,
A PERSON WHO HAS BEEN INDICTED IS ENTITLED TO HAVE A LAWYER PRESENT
WHEN PROSECUTION WITNESSES ARE SHOWN THE PERSON'S PHOTOGRAPH AND ASKED
IF THEY CAN IDENTIFY HIM. 

THE SIXTH AMENDMENT GUARANTEES THAT "(IN ALL CRIMINAL PROSECUTIONS,
THE ACCUSED SHALL ENJOY THE RIGHT . . . TO HAVE THE ASSISTANCE OF
COUNSEL FOR HIS DEFENCE."  THIS COURT'S DECISIONS MAKE IT CLEAR THAT A
DEFENDANT IS ENTITLED TO THE ASSISTANCE OF COUNSEL NOT ONLY AT THE
TRIAL ITSELF, BUT AT ALL "CRITICAL STAGES" OF HIS "PROSECUTION."  SEE
COLEMAN V. ALABAMA, 399 U.S. 1; UNITED STATES V. WADE, 388 U.S. 218;
GILBERT V. CALIFORNIA, 388 U.S. 263; HAMILTON V. ALABAMA, 368 U.S. 52. 
THE REQUIREMENT THAT THERE BE A "PROSECUTION," MEANS THAT THIS
CONSITUTIONAL "RIGHT TO COUNSEL ATTACHES ONLY AT OR AFTER THE TIME THAT
ADVERSARY JUDICIAL PROCEEDINGS HAVE BEEN INITIATED AGAINST (AN
ACCUSED).  . . ." 

[[HC322'(ORIGINAL DOCUMENT PAGE 322)'  "IT IS THIS POINT . . . THAT
MARKS THE COMMENCEMENT OF THE 'CRIMINAL PROSECUTIONS' TO WHICH ALONE
THE EXPLICIT GUARANTEES OF THE SIXTH AMENDMENT ARE APPLICABLE."  KIRBY
V. ILLINOIS, 406 U.S. 682, 688, 690 (PLURALITY OPINION).  SINCE THE
PHOTOGRAPHIC IDENTIFICATION IN THE PRESENT CASE OCCURRED AFTER THE
ACCUSED HAD BEEN INDICTED, AND THUS CLEARLY AFTER ADVERSARY JUDICIAL
PROCEEDINGS HAD BEEN INITIATED, THE ONLY QUESTION IS WHETHER THAT
PROCEDURE WAS SUCH A "CRITICAL STAGE" THAT THE CONSTITUTION REQUIRED
THE PRESENCE OF COUNSEL. 

IN UNITED STATES V. WADE, SUPRA, THE COURT DETERMINED THAT A
PRETRIAL PROCEEDINGS IS A "CRITICAL STAGE" IF "THE PRESENCE OF . . .
COUNSEL IS NECESSARY TO PRESERVE THE DEFENDANT'S . . . RIGHT
MEANINGFULLY TO CROSS-EXAMINE THE WITNESSES AGAINST HIM AND TO HAVE
EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL ITSELF."  388 U.S., AT
227.  PRETRIAL PROCEEDINGS ARE "CRITICAL," THEN, IF THE PRESENCE OF
COUNSEL IS ESSENTIAL "TO PROTECT THE FAIRNESS OF THE TRIAL ITSELF." 
SCHNECKLOTH V. BUSTAMONTE, 412 U.S. 218, 239; CF. COLEMAN V. ALABAMA,
399 U.S. 1, 27 - 28 (STEWART, J., DISSENTING). 

THE COURT HELD IN WADE THAT A POST-INDICTMENT, PRETRIAL LINEUP AT
WHICH THE ACCUSED WAS EXHIBITED TO IDENTIFYING WITNESSES WAS SUCH A
CRITICAL STAGE, BECAUSE OF THE SUBSTANTIAL POSSIBILITY THAT THE
ACCUSED'S RIGHT TO A FAIR TRIAL WOULD OTHERWISE BE IRRETRIEVABLY LOST. 
THE HAZARD OF UNFAIR SUGGESTIVE INFLUENCE AT A LINEUP, WHICH, BECAUSE
OF THE NATURE OF THE PROCEEDING, COULD SELDOM BE RECONSTRUCTED AT
TRIAL, LEFT LITTLE DOUBT, THE COURT THOUGHT, "THAT FOR WADE THE POST
INDICTMENT LINEUP WAS A CRITICAL STAGE OF THE PROSECUTION AT WHICH HE
WAS 'AS MUCH ENTITLED TO SUCH AID (OF COUNSEL) . . . AS AT THE TRIAL
ITSELF.'"  388 U.S., AT 237. 

THE COURT STRESSED IN WADE THAT THE DANGER OF MISTAKEN
IDENTIFICATION AT TRIAL WAS APPRECIABLY HEIGHTENED BY THE "DEGREE OF
SUGGESTION INHERENT IN THE MANNER IN WHICH THE PROSECUTION PRESENTS THE
SUSPECT TO WITNESSES FOR PRETRIAL IDENTIFICATION." 

[[HC323'(ORIGINAL DOCUMENT PAGE 323)'  ID., AT 228.  THERE ARE
NUMEROUS AND SUBTLE POSSIBILITIES FOR SUCH IMPROPER SUGGESTION IN THE
DYNAMIC CONTEXT OF A LINEUP.  JUDGE WILKEY, DISSENTING IN THE PRESENT
CASE, ACCURATELY DESCRIBED A LINEUP AS: 

"A LITTLE DRAMA, STRETCHING OVER AN APPRECIABLE SPAN OF TIME.  THE
ACCUSED IS THERE IN THE FLESH, THREE-DIMENSIONAL AND ALWAYS FULL
LENGTH.  FURTHER, HE ISN'T MERELY THERE, HE ACTS.  HE WALKS ON STAGE,
HE BLINKS IN THE GLARE OF LIGHTS, HE TURNS AND TWISTS, OFTEN MUTTERING
ASIDES TO THOSE SHARING THE SPOTLIGHT.  HE CAN BE REQUIRED TO UTTER
SIGNIFICANT WORDS, TO TURN A PROFILE OR BACK, TO WALK BACK AND FORTH,
TO DOFF ONE COSTUME AND DON ANOTHER.  ALL THE WHILE THE POTENTIALLY
IDENTIFYING WITNESS IS WATCHING, A PROSECUTING ATTORNEY AND A POLICE
DETECTIVE AT HIS ELBOW, READY TO RECORD THE WITNESS' EVERY WORD AND
REACTION."  149 U.S. APP. D. C. 1, 17, 461 F.2D 92, 108. 

WITH NO ATTORNEY FOR THE ACCUSED PRESENT AT THIS "LITTLE DRAMA,"
DEFENSE COUNSEL AT TRIAL COULD SELDOM CONVINCINGLY DISCREDIT A WITNESS'
COURTROOM IDENTIFICATION BY SHOWING IT TO BE BASED ON AN IMPERMISSIBLY
SUGGESTIVE LINEUP.  IN ADDITION TO THE PROBLEMS POSED BY THE FLUID
NATURE OF A LINEUP, THE COURT IN WADE POINTED OUT THAT NEITHER THE
WITNESSES NOR THE LINEUP PARTICIPANTS WERE LIKELY TO BE ALERT FOR
SUGGESTIVE INFLUENCES OR SCHOOLED IN THEIR DETECTION.  "IN SHORT, THE
ACCUSED'S INABILITY EFFECTIVELY TO RECONSTRUCT AT TRIAL ANY UNFAIRNESS
THAT OCCURRED AT THE LINEUP MAY DEPREIVE HIM OF HIS ONLY OPPORTUNITY
MEANINGFULLY TO ATTACK THE CREDIBILITY OF THE WITNESS' COURTROOM
IDENTIFICATION."  388 U.S., AT 231 - 232. 

THE COURT HELD, THEREFORE, THAT COUNSEL WAS REQUIRED AT A LINEUP,
PRIMARILY AS AN OBSERVER, TO ENSURE THAT DEFENSE COUNSEL COULD
EFFECTIVELY CONFRONT THE PROSECUTION'S EVIDENCE AT TRIAL. 

[[HC324'(ORIGINAL DOCUMENT PAGE 324)'  ATTUNED TO THE POSSIBILITIES
OF SUGGESTIVE INFLUENCES, A LAWYER COULD SEE ANY UNFAIRNESS AT A
LINEUP, QUESTION THE WITNESSES ABOUT IT AT TRIAL, AND EFFECTIVELY
RECONSTRUCT WHAT HAD GONE ON FOR THE BENEFIT OF THE JURY OR TRIAL
JUDGE.  /1/ 

A PHOTOGRAPHIC IDENTIFICATION IS QUITE DIFFERENT FROM A LINEUP, FOR
THERE ARE SUBSTANTIALLY FEWER POSSIBILITIES OF IMPERMISSIBLE SUGGESTION
WHEN PHOTOGRAPHS ARE USED, AND THOSE UNFAIR INFLUENCES CAN BE READILY
RECONSTRUCTED AT TRIAL.  IT IS TRUE THAT THE DEFENDANT'S PHOTOGRAPH MAY
BE MARKEDLY DIFFERENT FROM THE OTHERS DISPLAYED, BUT THIS UNFAIRNESS
CAN BE DEMONSTRATED AT TRIAL FROM AN ACTUAL COMPARISON OF THE
PHOTOGRAPHS USED OR FROM A WITNESS'  DESCRIPTION OF THE DISPLAY. 
SIMILARLY, IT IS POSSIBLE THAT THE PHOTOGRAPHS COULD BE ARRANGED IN A
SUGGESTIVE MANNER, OR THAT BY COMMENT OR GESTURE THE PROSECUTING
AUTHORITIES MIGHT SINGLE OUT THE DEFENDANT'S PICTURE.  BUT THESE ARE
THE KIND OF OVERT INFLUENCE THAT A WITNESS CAN EASILY RECOUNT AND THAT
WOULD SERVE TO IMPEACH THE IDENTIFICATION TESTIMONY.  IN SHORT, THERE
ARE FEW POSSIBILITIES FOR UNFAIR SUGGESTIVENESS -- AND THOSE RATHER
BLATANT AND EASILY RECONSTRUCTED.  ACCORDINGLY, AN ACCUSED WOULD NOT BE
FORECLOSED FROM AN EFFECTIVE CROSS-EXAMINATION OF AN IDENTIFICATION
WITNESS SIMPLY BECAUSE HIS COUNSEL WAS NOT PRESENT AT THE PHOTOGRAPHIC
DISPLAY. 

[[HC325'(ORIGINAL DOCUMENT PAGE 325)'  FOR THIS REASON, A
PHOTOGRAPHIC DISPLAY CANNOT FAIRLY BE CONSIDERED A "CRITICAL STAGE" OF
THE PROSECUTION.  AS THE COURT OF APPEALS FOR THE THIRD CIRCUIT APTLY
CONCLUDED: 

"IF . . . THE IDENTIFICATION IS NOT IN A LIVE LINEUP AT WHICH
DEFENDANT MAY BE FORCED TO ACT, SPEAK OR DRESS IN A SUGGESTIVE WAY,
WHERE THE POSSIBILITIES FOR SUGGESTION ARE MULTIPLIED, WHERE THE
ABILITY TO RECONSTRUCT THE EVENTS IS MINIMIZED, AND WHERE THE EFFECT OF
A POSITIVE IDENTIFICATION IS LIKELY TO BE PERMANENT, BUT AT A VIEWING
OF IMMOBILE PHOTOGRAPHS EASILY RECONSTRUCTIBLE, FAR LESS SUBJECT TO
SUBTLE SUGGESTION, AND FAR LESS INDELIBLE IN ITS EFFECT WHEN THE
WITNESS IS LATER BROUGHT FACE TO FACE WITH THE ACCUSED, THERE IS EVEN
LESS REASON TO DENOMINATE THE PROCEDURE A CRITICAL STAGE AT WHICH
COUNSEL MUST BE PRESENT."  UNITED STATES EX REL. REED V. ANDERSON, 461
F.2D 739, 745. 

PREPARING WITNESSES FOR TRIAL BY CHECKING THEIR IDENTIFICATION
TESTIMONY AGAINST A PHOTOGRAPHIC DISPLAY IS LITTLE DIFFERENT, IN MY
VIEW, FROM THE PROSECUTOR'S OTHER INTERVIEWS WITH THE VICTIM OR OTHER
WITNESSES BEFORE TRIAL.  SEE UNITED STATES V. BENNETT, 409 F.2D 888,
900.  WHILE THESE PROCEDURES CAN BE IMPROPERLY CONDUCTED, THE
POSSIBILITY OF IRRETRIEVABLE PREJUDICE IS REMOTE, SINCE ANY UNFAIRNESS
THAT DOES OCCUR CAN USUALLY BE FLUSHED OUT AT TRIAL THROUGH CROSS
EXAMINATION OF THE PROSECUTION WITNESSES.  THE PRESENCE OF DEFENSE
COUNSEL AT SUCH PRETRIAL PREPARATORY SESSIONS IS NEITHER APPROPRIATE
NOR NECESSARY UNDER OUR ADVERSARY SYSTEM OF JUSTICE "TO PRESERVE THE
DEFENDANT'S BASIC RIGHT TO A FAIR TRIAL AS AFFECTED BY HIS RIGHT
MEANINGFULLY TO CROSS-EXAMINE THE WITNESSES AGAINST HIM AND TO HAVE
EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL ITSELF."  UNITED STATES V.
WADE, SUPRA, AT 227. 

[[DFN 

/1/  I DO NOT READ WADE AS REQUIRING COUNSEL BECAUSE A LINEUP IS A
"TRIAL-TYPE" SITUATION, NOR DO I UNDERSTAND THAT THE COURT REQUIRED THE
PRESENCE OF AN ATTORNEY BECAUSE OF THE ADVICE OR ASSISTANCE HE COULD
GIVE TO HIS CLIENT AT THE LINEUP ITSELF.  RATHER, I HAD THOUGHT THE
REASONING OF WADE WAS THAT THE RIGHT TO COUNSEL IS ESSENTIALLY A
PROTECTION FOR THE DEFENDANT AT TRIAL, AND THAT COUNSEL IS NECESSARY AT
A LINEUP IN ORDER TO ENSURE A MEANINGFUL CONFRONTATION AND THE
EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. 

[[DOP 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

[[HC326'(ORIGINAL DOCUMENT PAGE 326)' 

THE COURT HOLDS TODAY THAT A PRETRIAL DISPLAY OF PHOTOGRAPHS TO THE
WITNESSES OF A CRIME FOR THE PURPOSE OF IDENTIFYING THE ACCUSED, UNLIKE
A LINEUP, DOES NOT CONSTITUTE A "CRITICAL STAGE" OF THE PROSECUTION AT
WHICH THE ACCUSED IS CONSTITUTIONALLY ENTITLED TO THE PRESENCE OF
COUNSEL.  IN MY VIEW, TODAY'S DECISION IS WHOLLY UNSUPPORTABLE IN TERMS
OF SUCH CONSIDERATIONS AS LOGIC, CONSISTENCY AND, INDEED, FAIRNESS.  AS
A RESULT, I MUST RELUCTANTLY CONCLUDE THAT TODAY'S DECISION MARKS
SIMPLY ANOTHER /1/  STEP TOWARDS THE COMPLETE EVISCERATION OF THE
FUNDAMENTAL CONSTITUTIONAL PRINCIPLES ESTABLISHED BY THIS COURT, ONLY
SIX YEARS AGO, IN UNITED STATES V. WADE, 388 U.S. 218 (1967); GILBERT
V. CALIFORNIA, 388 U.S. 263 (1967); AND STOVALL V. DENNO, 388 U.S. 293
(1967).  I DISSENT. 

        I 

ON THE MORNING OF AUGUST 26, 1965, TWO MEN WEARING STOCKING MASKS
ROBBED THE AMERICAN SECURITY AND TRUST CO. IN WASHINGTON, D.C.  THE
ROBBERY LASTED ONLY ABOUT THREE OR FOUR MINUTES AND, ON THE DAY OF THE
CRIME, NONE OF THE FOUR WITNESSES WAS ABLE TO GIVE THE POLICE A
DESCRIPTION OF THE ROBBERS' FACIAL CHARACTERISTICS.  SOME FIVE MONTHS
LATER, ON FEBRUARY 3, 1966, AN FBI AGENT SHOWED EACH OF THE FOUR
WITNESSES A GROUP OF BLACK AND WHITE MUG SHOTS OF THE FACES OF FIVE
BLACK MALES, INCLUDING THE RESPONDENT, ALL OF GENERALLY THE SAME AGE,
HEIGHT, AND WEIGHT.  RESPONDENT'S PHOTOGRAPH WAS INCLUDED BECAUSE OF
INFORMATION RECEIVED FROM A GOVERNMENT INFORMANT CHARGED WITH OTHER
CRIMES.  /2/  NONE OF THE WITNESSES WAS ABLE TO MAKE A "POSITIVE"
IDENTIFICATION OF RESPONDENT.  /3/ 

[[HC327'(ORIGINAL DOCUMENT PAGE 327)' 

ON APRIL 1, 1966, AN INDICTMENT WAS RETURNED CHARGING RESPONDENT AND
A CO-DEFENDANT IN FIVE COUNTS RELATING TO THE ROBBERY OF THE AMERICAN
SECURITY AND TRUST CO. TRIAL WAS FINALLY SET FOR MAY 8, 1968, ALMOST
THREE YEARS AFTER THE CRIME AND MORE THAN TWO YEARS AFTER THE RETURN OF
THE INDICTMENT.  DURING THE ENTIRE TWO-YEAR PERIOD BETWEEN INDICTMENT
AND TRIAL, ALTHOUGH ONE OF THE WITNESSES EXPRESSLY SOUGHT AN
OPPORTUNITY TO SEE RESPONDENT IN PERSON, THE GOVERNMENT NEVER ATTEMPTED
TO ARRANGE A CORPOREAL LINEUP FOR THE PURPOSES OF IDENTIFICATION. 
RATHER, LESS THAN 24 HOURSE BEFORE TRIAL, THE FBI AGENT, ACCOMPANIED BY
THE PROSECUTOR, SHOWED FIVE COLOR PHOTOGRAPHS TO THE WITNESSES, THREE
OF WHOM IDENTIFIED THE PICTURE OF RESPONDENT. 

AT TRIAL, ALL FOUR WITNESSES MADE IN-COURT IDENTIFICATIONS OF
RESPONDENT, BUT ONLY ONE OF THESE WITNESSES WAS "POSITIVE" IN HER
IDENTIFICATION.  THE FACT THAT THREE OF THE WITNESSES HAD PREVIOUSLY
IDENTIFIED RESPONDENT FROM THE COLOR PHOTOGRAPHS, AND THE PHOTOGRAPHS
THEMSELVES, WERE ALSO ADMITTED INTO EVIDENCE.  THE ONLY OTHER EVIDENCE
IMPLICATING RESPONDENT IN THE CRIME WAS THE TESTIMONY OF THE GOVERNMENT
INFORMANT.  /4/ 

[[HC328'(ORIGINAL DOCUMENT PAGE 328)'  ON THE BASIS OF THIS
EVIDENCE, RESPONDENT WAS CONVICTED ON ALL COUNTS OF THE INDICTMENT. 

ON APPEAL, THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT, SITTING EN BANC, REVERSED RESPONDENT'S CONVICTION. 
149 U.A. APP. D. C. 1, 461 F.2D 92 (1972).  NOTING THAT "THE DANGERS OF
MISTAKEN IDENTIFICATION FROM UNCOUNSELED LINEUP IDENTIFICATIONS . . .
ARE APPLICABLE IN LARGE MEASURE TO PHOTOGRAPHIC AS WELL AS CORPOREAL
IDENTIFICATIONS," /5/  THE COURT OF APPEALS REASONED THAT THIS COURT'S
DECISIONS IN WADE, GILBERT, AND STOVALL, COMPELLED THE CONCLUSION THAT
A PRETRIAL PHOTOGRAPHIC IDENTIFICATION, LIKE A LINEUP, IS A "CRITICAL"
STAGE OF THE PROSECUTION AT WHICH THE ACCUSED IS CONSTITUTIONALLY
ENTITLED TO THE ATTENDANCE OF COUNSEL.  ACCORDINGLY, THE COURT OF
APPEALS HELD THAT RESPONDENT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
"THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE" WHEN HIS ATTORNEY WAS NOT
GIVEN AN OPPORTUNITY TO ATTEND THE DISPLAY OF THE COLOR PHOTOGRAPHS ON
THE VERY EVE OF TRIAL.  /6/  IN MY VIEW, BOTH THE REASONING AND
CONCLUSION OF THE COURT OF APPEALS WERE UNIMPEACHABLY CORRECT, AND I
WOULD THEREFORE AFFIRM. 

        II 

IN JUNE 1967, THIS COURT DECIDED A TRILOGY OF "LINEUP" CASES WHICH
BROUGHT INTO SHARP FOCUS THE PROBLEMS OF PRETRIAL IDENTIFICATION. 

[[HC329'(ORIGINAL DOCUMENT PAGE 329)'  SEE UNITED STATES V. WADE,
SUPRA; GILBERT V. CALIFORNIA, SUPRA; STOVALL V. DENNO, SUPRA.  IN
ESSENCE, THOSE DECISIONS HELD:  (1) THAT A PRETRIAL LINEUP IS A
"CRITICAL STAGE" IN THE CRIMINAL PROCESS AT WHICH THE ACCUSED IS
CONSTITUTIONALLY ENTITLED TO THE PRESENCE OF COUNSEL; (2) THAT EVIDENCE
OF AN IDENTIFICATION OF THE ACCUSED AT SUCH AN UNCOUNSELED LINEUP IS
PER SE INADMISSIBLE; AND (3) THAT EVIDENCE OF A SUBSEQUENT IN-COURT
IDENTIFICATION OF THE ACCUSED IS LIKEWISE INADMISSIBLE UNLESS THE
GOVERNMENT CAN DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT THE IN
COURT IDENTIFICATION WAS BASED UPON OBSERVATIONS OF THE ACCUSED
INDEPENDENT OF THE PRIOR UNCOUNSELED LINEUP IDENTIFICATION.  THE
CONSIDERATIONS RELIED UPON BY THE COURT IN REACHING THESE CONCLUSIONS
ARE CLEARLY APPLICABLE TO PHOTOGRAPHIC AS WELL AS CORPOREAL
IDENTIFICATIONS.  THOSE CONSIDERATIONS BEAR REPEATING HERE IN SOME
DETAIL, FOR THEY TOUCH UPON THE VERY HEART OF OUR CRIMINAL JUSTICE
SYSTEM -- THE RIGHT OF AN ACCUSED TO A FAIR TRIAL, INCLUDING THE
EFFECTIVE "ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

AT THE OUTSET, THE COURT NOTED THAT "IDENTIFICATION EVIDENCE IS
PECULIARLY RIDDLED WITH INNUMERABLE DANGERS AND VARIABLE FACTORS WHICH
MIGHT SERIOUSLY, EVEN CRUCIALLY, DEROGATE FROM A FAIR TRIAL."  UNITED
STATES V. WADE, SUPRA, AT 228.  INDEED, "(THE VAGARIES OF EYEWITNESS
IDENTIFICATION ARE WELL-KNOWN; THE ANNALS OF CRIMINAL LAW ARE RIFE WITH
INSTANCES OF MISTAKEN IDENTIFICATION."  IBID.  APART FROM "THE DANGERS
INHERENT IN EYEWITNESS IDENTIFICATION," ID., AT 235, SUCH AS UNRELIABLE
MEMORY OR PERCEPTION, THE COURT POINTED OUT THAT "(AMAJOR FACTOR
CONTRIBUTING TO THE HIGH INCIDENCE OF MISCARRIAGE OF JUSTICE FROM
MISTAKEN IDENTIFICATION HAS BEEN THE DEGREE OF SUGGESTION INHERENT IN
THE MANNER IN WHICH THE PROSECUTION PERSENTS THE SUSPECT TO WITNESSES
FOR PRETRIAL IDENTIFICATION."  ID., AT 228.  THE COURT RECOGNIZED THAT
THE DANGERS OF SUGGESTION ARE NOT NECESSARILY DUE TO "POLICE PROCEDURES
INTENTIONALLY DESIGNED TO PREJUDICE AN ACCUSED." 

[[HC330'(ORIGINAL DOCUMENT PAGE 330)'  ID., AT 235.  ON THE
CONTRARY, "(SUGGESTION CAN BE CREATED INTENTIONALLY OR UNINTENTIONALLY
IN MANY SUBTLE WAYS."  ID., AT 229.  AND THE "'FACT THAT THE POLICE
THEMSELVES HAVE, IN A GIVEN CASE, LITTLE OR NO DOUBT THAT THE MAN PUT
UP FOR IDENTIFICATION HAS COMMITTED THE OFFENSE . . . INVOLVES A DANGER
THAT THIS PERSUASION MAY COMMUNICATE ITSELF EVEN IN A DOUBTFUL CASE TO
THE WITNESS IN SOME WAY . . . .'"  ID., AT 235, QUOTING WILLIAMS &
HAMMELMANN, IDENTIFICATION PARADES-I, (1963) CRIM. L. REV. 479, 483. 

THE COURT ALSO EXPRESSED CONCERN OVER THE POSSIBILITY THAT A
MISTAKEN IDENTIFICATION AT A PRETRIAL LINEUP MIGHT ITSELF BE CONCLUSIVE
ON THE QUESTION OF IDENTITY, THEREBY RESULTING IN THE CONVICTION OF AN
INNOCENT MAN.  THE COURT OBSERVED THAT "'ONCE A WITNESS HAS PICKED OUT
THE ACCUSED AT A LINE-UP, HE IS NOT LIKELY TO GO BACK ON HIS WORD LATER
ON, SO THAT IN PRACTICE THE ISSUE OF IDENTITY MAY (IN THE ABSENCE OF
OTHER RELEVANT EVIDENCE) FOR ALL PRACTICAL PURPOSES BE DETERMINED THERE
AND THEN, BEFORE THE TRIAL.'"  UNITED STATES V. WADE, SUPRA, AT 229,
QUOTING WILLIAMS & HAMMELMANN, SUPRA, AT 482. 

MOREOVER, "THE DEFENSE CAN SELDOM RECONSTRUCT THE MANNER AND MODE OF
LINEUP IDENTIFICATION FOR JUDGE OR JURY AT TRIAL."  WADE V. UNITED
STATES, SUPRA, AT 230.  FOR "AS IS THE CASE WITH SECRET INTERROGATIONS,
THERE IS SERIOUS DIFFICULTY IN DEPICTING WHAT TRANSPIRES AT LINEUPS . .
. ."  IBID.  ALTHOUGH THE ACCUSED IS PRESENT AT SUCH CORPOREAL
IDENTIFICATIONS, HE IS HARDLY IN A POSITION TO DETECT MANY OF THE MORE
SUBTLE "IMPROPER INFLUENCES" THAT MIGHT INFECT THE IDENTIFICATION.  /7/
IN ADDITION, THE COURT EMPHASIZED THAT "NEITHER WITNESSES NOR LINEUP
PARTICIPANTS ARE APT TO BE ALERT FOR CONDITIONS PREJUDICIAL TO THE
SUSPECT. 

[[HC331'(ORIGINAL DOCUMENT PAGE 331)'  AND, IF THEY WERE, IT WOULD
LIKELY BE OF SCANT BENEFIT TO THE SUSPECT SINCE NEITHER WITNESSES NOR
LINEUP PARTICIPANTS ARE LIKELY TO BE SCHOOLED IN THE DETECTION OF
SUGGESTIVE INFLUENCES."  IBID.  AS A RESULT, "EVEN THOUGH CROSS
EXAMINATION IS A PRECIOUS SAFEGUARD TO A FAIR TRIAL, IT CANNOT (IN THIS
CONTEXT) BE VIEWED AS AN ABSOLUTE ASSURANCE OF ACCURACY AND
RELIABILITY."  ID., AT 235. 

WITH THESE CONSIDERATIONS IN MIND, THE COURT REASONED THAT "THE
ACCUSED'S INABILITY EFFECTIVELY TO RECONSTRUCT AT TRIAL ANY UNFAIRNESS
THAT OCCURRED AT A LINEUP MAY DEPREIVE HIM OF HIS ONLY OPPORTUNITY
MEANINGFULLY TO ATTACK THE CREDIBILITY OF THE WITNESS' COURTROOM
IDENTIFICATION."  ID., AT 231 - 232.  AND "(INSOFAR AS THE ACCUSED'S
CONVICTION MAY REST ON A COURTROOM IDENTIFICATION IN FACT THE FRUIT OF
A SUSPECT PRETRIAL IDENTIFICATION WHICH THE ACCUSED IS HELPLESS TO
SUBJECT TO EFFECTIVE SCRUTINY AT TRIAL, THE ACCUSED IS DEPRIVED OF THAT
RIGHT OF CROSS-EXAMINATION WHICH IS AN ESSENTIAL SAFEGUARD TO HIS RIGHT
TO CONFRONT THE WITNESSES AGAINST HIM."  ID., AT 235.  THUS, NOTING
THAT "PRESENCE OF COUNSEL (AT THE LINEUP) CAN OFTEN AVERT PREJUDICE AND
ASSURE A MEANINGFUL CONFRONTATION AT TRIAL,"  THE COURT CONCLUDED THAT
A PRETRIAL CORPOREAL IDENTIFICATION IS A "CRITICAL STAGE OF THE
PROSECUTION AT WHICH (THE ACCUSED IS) 'AS MUCH ENTITLED TO SUCH AID (OF
COUNSEL) . . . AS AT THE TRIAL ITSELF.'"  ID., AT 236, 237, QUOTING
POWELL V. ALABAMA, 287 U.S. 45, 57 (1932). 

 III 

AS THE COURT OF APPEALS RECOGNIZED, "THE DANGERS OF MISTAKEN
IDENTIFICATION . . . SET FORTH IN WADE ARE APPLICABLE IN LARGE MEASURE
TO PHOTOGRAPHIC AS WELL AS CORPOREAL IDENTIFICATIONS." 

[[HC332'(ORIGINAL DOCUMENT PAGE 332)'  149 U.S. APP. D. C., AT 9,
461 F.2D, AT 100.  TO THE EXTENT THAT MISIDENTIFICATION MAY BE
ATTRIBUTABLE TO A WITNESS' FAULTY MEMORY OR PERCEPTION, OR INADEQUATE
OPPORTUNITY FOR DETAILED OBSERVATION DURING THE CRIME, THE RISKS ARE
OBVIOUSLY AS GREAT AT A PHOTOGRAPHIC DISPLAY AS AT A LINEUP.  /8/  BUT
"(BECAUSE OF THE INHERENT LIMITATIONS OF PHOTOGRAPHY, WHICH PRESENTS
ITS SUBJECT IN TWO DIMENSIONS RATHER THAN THE THREE DIMENSIONS OF
REALITY, . . . A PHOTOGRAPHIC IDENTIFICATION, EVEN WHEN PROPERLY
OBTAINED, IS CLEARLY INFERIOR TO A PROPERLY OBTAINED CORPOREAL
IDENTIFICATION."  P. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES
70 (1965).  INDEED, NOTING "THE HAZARDS OF INITIAL IDENTIFICATION BY
PHOTOGRAPH," WE HAVE EXPRESSLY RECOGNIZED THAT "A CORPOREAL
IDENTIFICATION . . . IS NORMALLY MORE ACCURATE" THAN A PHOTOGRAPHIC
IDENTIFICATION.  SIMMONS V. UNITED STATES, 390 U.S. 377, 384, 386 N. 6
(1968).  /9/  THUS, IN THIS SENSE AT LEAST, THE DANGERS OF
MISIDENTIFICATION ARE EVEN GREATER AT A PHOTOGRAPHIC DISPLAY THAN AT A
LINEUP. 

[[HC333'(ORIGINAL DOCUMENT PAGE 333)' 

MOREOVER, AS IN THE LINEUP SITUATION, THE POSSIBILITIES FOR
IMPERMISSIBLE SUGGESTION IN THE CONTEXT OF A PHOTOGRAPHIC DISPLAY ARE
MANIFOLD.  SEE ID., AT 383.  SUCH SUGGESTION, INTENTIONAL OR
UNINTENTIONAL, MAY DERIVE FROM THREE POSSIBLE SOURCES.  FIRST, THE
PHOTOGRAPHS THEMSELVES MIGHT TEND TO SUGGEST WHICH OF THE PICTURES IS
THAT OF THE SUSPECT.  FOR EXAMPLE, DIFFERENCES IN AGE, POSE, OR OTHER
PHYSICAL CHARACTERISTICS OF THE PERSONS REPRESENTED, AND VARIATIONS IN
THE MOUNTING, BACKGROUND, LIGHTING, OR MARKINGS OF THE PHOTOGRAPHS ALL
MIGHT HAVE THE EFFECT OF SINGLING OUT THE ACCUSED.  /10/ 

SECOND, IMPERMISSIBLE SUGGESTION MAY INHERE IN THE MANNER IN WHICH
THE PHOTOGRAPHS ARE DISPLAYED TO THE WITNESS.  THE DANGER OF
MISIDENTIFICATION IS, OF COURSE, "INCREASED IF THE POLICE DISPLAY TO
THE WITNESS . . . THE PICTURES OF SEVERAL PERSONS AMONG WHICH THE
PHOTOGRAPH OF A SINGLE SUCH INDIVIDUAL RECURS OR IS IN SOME WAY
EMPHASIZED."  IBID.  AND, IF THE PHOTOGRAPHS ARE ARRANGED IN AS
ASYMMETRICAL PATTERN, OR IF THEY ARE DISPLAYED IN THE TIME SEQUENCE
THAT TENDS TO EMPHASIZE A PARTICULAR PHOTOGRAPH, "ANY IDENTIFICATION OF
THE PHOTOGRAPH WHICH STANDS OUT FROM THE REST IS NO MORE RELIABLE THAN
AN IDENTIFICATION OF A SINGLE PHOTOGRAPH, EXHIBITED ALONE."  P. WALL,
SUPRA, AT 81. 

THIRD, GESTURES OR COMMENTS OF THE PROSECUTOR AT THE TIME OF THE
DISPLAY MAY LEAD AN OTHERWISE UNCERTAIN WITNESS TO SELECT THE "CORRECT"
PHOTOGRAPH. 

[[HC334'(ORIGINAL DOCUMENT PAGE 334)'  FOR EXAMPLE, THE PROSECUTOR
MIGHT "INDICATE TO THE WITNESS THAT (HE HAS) OTHER EVIDENCE THAT ONE OF
THE PERSONS PICTURED COMMITTED THE CRIME."  /11/  AND MIGHT EVEN POINT
TO A PARTICULAR PHOTOGRAPH AND ASK WHETHER THE PERSON PICTURED "LOOKS
FAMILIAR."  MORE SUBTLY, THE PROSECUTOR'S INFLECTION, FACIAL
EXPRESSIONS, PHYSICAL MOTIONS, AND MYRIAD OTHER ALMOST IMPERCEPTIBLE
MEANS OF COMMUNICATION MIGHT TEND, INTENTIONALLY OR UNINTENTIONALLY, TO
COMPROMISE THE WITNESS'  OBJECTIVITY.  THUS, AS IS THE CASE WITH
LINEUPS, "(IMPROPER PHOTOGRAPHIC IDENTIFICATION PROCEDURES, . . . BY
EXERTING A SUGGESTIVE INFLUENCE UPON THE WITNESSES, CAN OFTEN LEAD TO
AN ERRONEOUS IDENTIFICATION . . . ."  P. WALL, SUPRA, AT 89.  /12/  AND
"(REGARDLESS OF HOW THE INITIAL MISIDENTIFICATION COMES ABOUT, THE
WITNESS THEREAFTER IS APT TO RETAIN IN HIS MEMORY THE IMAGE OF THE
PHOTOGRAPH RATHER THAN OF THE PERSON ACUTALLY SEEN . . . ." 

[[HC335'(ORIGINAL DOCUMENT PAGE 335)'  SIMMONS V. UNITED STATES,
SUPRA, AT 383 - 384.  /13/  AS A RESULT, "'THE ISSUE OF IDENTITY MAY
(IN THE ABSENCE OF OTHER RELEVANT EVIDENCE) FOR ALL PRACTICAL PURPOSES
BE DETERMINED THERE AND THEN, BEFORE THE TRIAL.'"  UNITED STATES V.
WADE, SUPRA, AT 229, QUOTING WILLIAMS & HAMMELMANN, SUPRA, AT 482. 

MOREOVER, AS WITH LINEUPS, THE DEFENSE CAN "SELDOM RECONSTRUCT"  AT
TRIAL THE MODE AND MANNER OF PHOTOGRAPHIC IDENTIFICATION.  IT IS TRUE,
OF COURSE, THAT THE PHOTOGRAPHS USED AT THE PRETRIAL DISPLAY MIGHT BE
PRESERVED FOR EXAMINATION AT TRIAL.  BUT "IT MAY ALSO BE SAID THAT A
PHOTOGRAPH CAN PRESERVE THE RECORD OF A LINEUP; YET THIS DOES NOT
JUSTIFY A LINEUP WITHOUT COUNSEL."  149 U.S. APP. D. C., AT 9 - 10, 461
F.2D, AT 100 - 101.  CF. UNITED STATES V. WADE, SUPRA, AT 239 AND N.
30.  INDEED, IN REALITY, PRESERVATION OF THE PHOTOGRAPHS AFFORDS LITTLE
PROTECTION TO THE UNREPRESENTED ACCUSED.  FOR, ALTHOUGH RETENTION OF
THE PHOTOGRAPHS MAY MITIGATE THE DANGERS OF MISIDENTIFICATION DUE TO
THE SUGGESTIVENESS OF THE PHOTOGRAPHS THEMSELVES, IT CANNOT IN ANY
SENSE REVEAL TO DEFENSE COUNSEL THE MORE SUBTLE, AND THEREFORE MORE
DANGEROUS, SUGGESTIVENESS THAT MIGHT DERIVE FROM THE MANNER IN WHICH
THE PHOTOGRAPHS WERE DISPLAYED OR ANY ACCOMPANYING COMMENTS OR
GESTURES.  MOREOVER, THE ACCUSED CANNOT RELY UPON THE WITNESSES
THEMSELVES TO EXPOSE THESE LATTER SOURCES OF SUGGESTION, FOR THE
WITNESSES ARE NOT "APT TO BE ALERT FOR CONDITIONS PREJUDICIAL TO THE
SUSPECT.  AND IF THEY WERE, IT WOULD LIKELY BE OF SCANT BENEFIT TO THE
SUSPECT" SINCE THE WITNESSES ARE HARDLY "LIKELY TO BE SCHOOLED IN THE
DETECTION OF SUGGESTIVE INFLUENCES."  ID., AT 230. 

FINALLY, AND UNLIKE THE LINEUP SITUATION, THE ACCUSED HIMSELF IS NOT
EVEN PRESENT AT THE PHOTOGRAPHIC IDENTIFICATION, THEREBY REDUCING THE
LIKELIHOOD THAT IRREGULARITIES IN THE PROCEDURES WILL EVER COME TO
LIGHT. 

[[HC336'(ORIGINAL DOCUMENT PAGE 336)'  INDEED, IN WADE, THE
GOVERNMENT ITSELF OBSERVED:  /14/ 

"WHEN THE DEFENDANT IS PRESENT -- AS HE IS DURING A LINEUP -- HE MAY
PERSONALLY OBSERVE THE CIRCUMSTANCES, REPORT THEM TO HIS ATTORNEY, AND
(IF HE CHOOSES TO TAKE THE STAND) TESTIFY ABOUT THEM AT TRIAL.  . . .
(IN THE ABSENCE OF AN ACCUSED, ON THE OTHER HAND, THERE IS NO ONE
PRESENT TO VERIFY THE FAIRNESS OF THE INTERVIEW OR TO REPORT ANY
IRREGULARITIES.  IF THE PROSECUTION WERE TEMPTED TO ENGAGE IN 'SLOPPY
OR BIASED OR FRAUDULENT' CONDUCT . . . , IT WOULD BE FAR MORE LIKELY TO
DO SO WHEN THE ACCUSED IS ABSENT THAN WHEN HE HIMSELF IS BEING
'USED.'" 

THUS, THE DIFFICULTIES OF RECONSTRUCTING AT TRIAL AN UNCOUNSELED
PHOTOGRAPHIC DISPLAY ARE AT LEAST EQUAL TO, AND POSSIBLY GREATER THAN,
THOSE INVOLVED IN RECONSTRUCTING AN UNCOUNSELED LINEUP.  /15/  AND, AS
THE GOVERNMENT ARGUED IN WADE, IN TERMS OF THE NEED FOR COUNSEL,
"(THERE IS NO MEANINGFUL DIFFERENCE BETWEEN A WITNESS' PRETRIAL
IDENTIFICATION FROM PHOTOGRAPHS AND A SIMILAR IDENTIFICATION MADE AT A
LINEUP."  /16/ 

[[HC337'(ORIGINAL DOCUMENT PAGE 337)'  FOR, IN BOTH SITUATIONS "THE
ACCUSED'S INABILITY EFFECTIVELY TO RECONSTRUCT AT TRIAL ANY UNFAIRNESS
THAT OCCURRED AT THE (PRETRIAL IDENTIFICATION) MAY DEPRIVE HIM OF HIS
ONLY OPPORTUNITY MEANINGFULLY TO ATTACK THE CREDIBILITY OF THE WITNESS'
COURTROOM IDENTIFICATION."  UNITED STATES V. WADE, SUPRA, AT 231 -
232.  AS A RESULT, BOTH PHOTOGRAPHIC AND CORPOREAL IDENTIFICATIONS
CREATE GRAVE DANGERS THAT AN INNOCENT DEFENDANT MIGHT BE CONVICTED
SIMPLY BECAUSE OF HIS INABILITY TO EXPOSE A TAINTED IDENTIFICATION. 

[[HC338'(ORIGINAL DOCUMENT PAGE 338)'  THIS BEING SO, CONSIDERATIONS
OF LOGIC, CONSISTENCY AND, INDEED, FAIRNESS COMPEL THE CONCLUSION THAT
A PRETRIAL PHOTOGRAPHIC IDENTIFICATION, LIKE A PRETRIAL CORPOREAL
IDENTIFICATION, IS A "CRITICAL STAGE OF THE PROSECUTION AT WHICH (THE
ACCUSED IS)'AS MUCH ENTITLED TO SUCH AID (OF COUNSEL) . . . AS AT THE
TRIAL ITSELF.'"  ID., AT 237, QUOTING POWELL V. ALABAMA, 287 U.S., AT
57. 

        IV 

IRONICALLY, THE COURT DOES NOT SERIOUSLY CHALLENGE THE PROPOSITION
THAT PRESENCE OF COUNSEL AT A PRETRIAL PHOTOGRAPHIC DISPLAY IS
ESSENTIAL TO PRESERVE THE ACCUSED'S RIGHT TO A FAIR TRIAL ON THE ISSUE
OF IDENTIFICATION.  RATHER, IN WHAT I CAN ONLY CHARACTERIZE A TRIUMPH
OF FORM OVER SUBSTANCE, THE COURT SEEKS TO JUSTIFY ITS RESULT BY
ENGRAFTING A WHOLLY UNPRECEDENTED -- AND WHOLLY UNSUPPORTABLE --
LIMITATION ON THE SIXTH AMENDMENT RIGHT OF "THE ACCUSED . . . TO HAVE
THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE."  ALTHOUGH APPARENTLY
CONCEDING THAT THE RIGHT TO COUNSEL ATTACHES, NOT ONLY AT THE TRIAL
ITSELF, BUT AT ALL "CRITICAL STAGES"  OF THE PROSECUTION, SEE ANTE, AT
309 - 311, THE COURT HOLDS TODAY THAT, IN ORDER TO BE DEEMED
"CRITICAL," THE PARTICULAR "STAGE OF THE PROSECUTION" UNDER
CONSIDERATION MUST, AT THE VERY LEAST, INVOLVE THE PHYSICAL "PRESENCE
OF THE ACCUSED," AT A "TRIAL-LIKE CONFRONTATION"  WITH THE GOVERNMENT,
AT WHICH THE ACCUSED REQUIRES THE "GUIDING HAND OF COUNSEL."  A
PRETRIAL PHOTOGRAPHIC IDENTIFICATION DOES NOT, OF COURSE, MEET THESE
CRITERIA.    IN SUPPORT OF THIS RATHER CRABBED VIEW OF THE SIXTH
AMENDMENT, THE COURT CITES OUR DECISIONS IN COLEMAN V. ALABAMA, 399
U.S. 1 (1970), MASSIAH V. UNITED STATES, 377 U.S. 201 (1964), WHITE V.
MARYLAND, 373 U.S. 59 (1963), AND HAMILTON V. ALABAMA, 368 U.S. 52
(1961). 

[[HC339'(ORIGINAL DOCUMENT PAGE 339)'  ADMITTEDLY, EACH OF THESE
DECISIONS GUARANTEED THE ASSISTANCE OF COUNSEL IN PRETRIAL PROCEEDINGS
AT LEAST ARGUABLY INVOLVING THE PHYSICAL "PRESENCE OF THE ACCUSED," AT
A "TRIAL-LIKE CONFRONTATION"  WITH THE GOVERNMENT, AT WHICH THE ACCUSED
REQUIRED THE "GUIDING HAND OF COUNSEL."  /17/  MOREOVER, AS THE COURT
POINTS OUT, THESE DECISIONS ARE CONSISTENT WITH THE VIEW THAT THE SIXTH
AMENDMENT "EMBODIES A REALISTIC RECOGNITION OF THE OBVIOUS TRUTH THAT
THE AVERAGE DEFENDANT DOES NOT HAVE THE PROFESSIONAL LEGAL SKILL TO
PROTECT HIMSELF WHEN BROUGHT BEFORE A TRIBUNAL WITH POWER TO TAKE HIS
LIFE OR LIBERTY, WHEREIN THE PROSECUTION IS PRESENTED BY EXPERIENCED
AND LEARNED COUNSEL."  JOHNSON V. ZERBST, 304 U.S. 458, 462 - 463
(1938).  BUT, CONTRARY TO THE COURT'S ASSUMPTION, THIS IS MERELY ONE
FACET OF THE SIXTH AMENDMENT GUARANTEE, AND THE DECISIONS RELIED UPON
BY THE COURT REPRESENT, NOT THE BOUNDARIES OF THE RIGHT TO COUNSEL, BUT
MERE APPLICATIONS OF A FAR BROADER AND MORE REASONED UNDERSTANDING OF
THE SIXTH AMENDMENT THAN THAT ESPOUSED TODAY. 

THE FUNDAMENTAL PREMISE UNDERLYING ALL OF THIS COURT'S DECISIONS
HOLDING THE RIGHT TO COUNSEL APPLICABLE AT "CRITICAL"  PRETRIAL
PROCEEDINGS, IS THAT A "STAGE" OF THE PROSECUTION MUST BE DEEMED
"CRITICAL" FOR THE PURPOSES OF THE SIXTH AMENDMENT IF IT IS ONE AT
WHICH THE PRESENCE OF COUNSEL IS NECESSARY "TO PROTECT THE FAIRNESS OF
THE TRIAL ITSELF."  SCHNECKLOTH V. BUSTAMONTE, 412 U.S., 218, 239
(1973) (EMPHASIS ADDED).  THUS, IN HAMILTON V. ALABAMA, SUPRA, FOR
EXAMPLE, WE MADE CLEAR THAT AN ARRAIGNMENT UNDER ALABAMA LAW IS A
"CRITICAL STAGE" OF THE PROSECUTION, NOT ONLY BECAUSE THE ACCUSED AT
SUCH AN ARRAIGNMENT REQUIRES "THE GUIDING HAND OF COUNSEL,"  BUT, MORE
BROADLY, BECAUSE "(WHAT HAPPENS THERE MAY AFFECT THE WHOLE TRIAL." 

[[HC340'(ORIGINAL DOCUMENT PAGE 340)'  ID., AT 54.  INDEED, TO
EXCLUDE COUNSEL FROM A PRETRIAL PROCEEDING AT WHICH HIS PRESENCE MIGHT
BE NECESSARY TO ASSURE THE FAIRNESS OF THE SUBSEQUENT TRIAL WOULD, IN
PRACTICAL EFFECT, RENDER THE SIXTH AMENDMENT GUARANTEE VIRTUALLY
MEANINGLESS, FOR IT WOULD "DENY A DEFENDANT 'EFFECTIVE REPRESENTATION
BY COUNSEL AT THE ONLY STAGE WHEN LEGAL AID AND ADVICE WOULD HELP
HIM.'"  MASSIAH V. UNITED STATES, SUPRA, AT 204, QUOTING SPANO V. NEW
YORK, 360 U.S. 315, 326 (1959) (DOUGLAS, J., CONCURRING); SEE ESCOBEDO
V. ILLINOIS, 378 U.S. 478, 484 - 485 (1964). 

THIS ESTABLISHED CONCEPTION OF THE SIXTH AMENDMENT GUARANTEE IS, OF
COURSE, IN NO SENSE DEPENDENT UPON THE PHYSICAL "PRESENCE OF THE
ACCUSED," AT A "TRIAL-LIKE CONFRONTATION" WITH THE GOVERNMENT, AT WHICH
THE ACCUSED REQUIRES THE "GUIDING HAND OF COUNSEL."  ON THE CONTRARY,
IN POWELL V. ALABAMA, 287 U.S. 45 (1932), THE SEMINAL DECISION IN THIS
AREA, WE EXPLICITLY HELD THE RIGHT TO COUNSEL APPLICABLE AT A STAGE OF
THE PRETRIAL PROCEEDINGS INVOLVING NONE OF THE THREE CRITERIA SET FORTH
BY THE COURT TODAY.  IN POWELL, THE DEFENDANTS IN A STATE FELONY
PROSECUTION WERE NOT APPOINTED COUNSEL UNTIL THE VERY EVE OF TRIAL. 
THIS COURT HELD, IN NO UNCERTAIN TERMS, THAT SUCH AN APPOINTMENT COULD
NOT SATISFY THE DEMANDS OF THE SIXTH AMENDMENT, FOR "'(IT IS VAIN . . .
TO GUARANTEE (THE ACCUSED) COUNSEL WITHOUT GIVING THE LATTER ANY
OPPORTUNITY TO ACQUAINT HIMSELF WITH THE FACTS OR LAW OF THE CASE.'" 
ID., AT 59.  IN OTHER WORDS, POWELL MADE CLEAR THAT, IN ORDER TO
PRESERVE THE ACCUSED'S RIGHT TO A FAIR TRIAL AND TO "EFFECTIVE AND
SUBSTANTIAL"  /18/  ASSISTANCE OF COUNSEL AT THAT TRIAL, THE SIXTH
AMENDMENT GUARANTEE NECESSARILY ENCOMPASSES A REASONABLE PERIOD OF TIME
BEFORE TRIAL DURING WHICH COUNSEL MIGHT PREPARE THE DEFENSE. 

[[HC341'(ORIGINAL DOCUMENT PAGE 341)'  YET IT CAN HARDLY BE SAID
THAT THIS PREPARATORY PERIOD OF RESEARCH AND INVESTIGATION INVOLVES THE
PHYSICAL "PRESENCE OF THE ACCUSED," AT A "TRIAL-LIKE CONFRONTATION"
WITH THE GOVERNMENT, AT WHICH THE ACCUSED REQUIRES THE "GUIDING HAND OF
COUNSEL." 

MOREOVER, DESPITE THE COURT'S EFFORTS TO REWRITE WADE SO AS TO
SUGGEST A PRECEDENTIAL BASIS FOR ITS OWN ANALYSIS, /19/  THE RATIONALE
OF WADE LENDS NO SUPPORT WHATEVER TO TODAY'S DECISION.  IN WADE, AFTER
CONCLUDING THAT COMPELLED PARTICIPATION IN A LINEUP DOES NOT VIOLATE
THE ACCUSED'S RIGHT AGAINST SELF-INCRIMINATION, /20/  THE COURT
ADDRESSED THE ARGUMENT "THAT THE ASSISTANCE OF COUNSEL AT THE LINEUP
WAS INDISPENSABLE TO PROTECT WADE'S MOST BASIC RIGHT AS A CRIMINAL
DEFENDANT -- HIS RIGHT TO A FAIR TRIAL AT WHICH THE WITNESSES AGAINST
HIM MIGHT BE MEANINGFULLY CROSS-EXAMINED."  388 U.S., AT 223 - 224. 
THE COURT THEN SURVEYED THE HISTORY OF THE SIXTH AMENDMENT, AND
SPECIFICALLY CONCLUDED THAT THAT AMENDMENT GUARANTEES "COUNSEL'S
ASSISTANCE WHENEVER NECESSARY TO ASSURE A MEANINGFUL 'DEFENCE.'"  ID.,
AT 225 (EMPHASIS ADDED). 

[[HC342'(ORIGINAL DOCUMENT PAGE 342)'  THEN, AFTER EXAMINING THIS
COURT'S PRIOR DECISIONS CONCERNING THE APPLICABILITY OF THE COUNSEL
GUARANTEE, /21/  THE COURT STRESSED ONCE AGAIN THAT A PRETRIAL
PROCEEDING IS A "CRITICAL STAGE" OF THE PROSECUTION IF "THE PRESENCE OF
HIS COUNSEL IS NECESSARY TO PRESERVE THE DEFENDANT'S BASIC RIGHT TO A
FAIR TRIAL AS AFFECTED BY HIS RIGHT MEANINGFULLY TO CROSS-EXAMINE THE
WITNESSES AGAINST HIM AND TO HAVE EFFECTIVE ASSISTANCE OF COUNSEL AT
THE TRIAL ITSELF."  ID., AT 227. 

THE COURT NEXT ADDRESSED THE GOVERNMENT'S CONTENTION THAT A LINEUP
IS "A MERE PREPARATORY STEP IN THE GATHERING OF THE PROSECUTION'S
EVIDENCE, NOT DIFFERENT -- FOR SIXTH AMENDMENT PURPOSES -- FROM VARIOUS
OTHER PREPARATORY STEPS, SUCH AS SYSTEMATIZED OR SCIENTIFIC ANALYZING
OF THE ACCUSED'S FINGERPRINTS, BLOOD SAMPLE, CLOTHING, HAIR, AND THE
LIKE."  ID., AT 227.  IF THE COURT IN WADE HAD EVEN THE REMOTEST
INTENTION OF EMBRACING THE WOODEN INTERPRETATION OF THE SIXTH AMENDMENT
ASCRIBED TO IT TODAY, IT COULD HAVE REJECTED THE GOVERNMENT'S
CONTENTION SIMPLY BY POINTING OUT THE OBVIOUS FACT THAT SUCH
"SYSTEMATIZED OR SCIENTIFIC ANALYZING" DOES NOT IN ANY SENSE INVOLVE
THE PHYSICAL "PRESENCE OF THE ACCUSED," AT A "TRIAL-LIKE CONFRONTATION"
WITH THE GOVERNMENT, AT WHICH THE ACCUSED REQUIRES THE "GUIDING HAND OF
COUNSEL."  BUT THE COURT OFFERED NOT EVEN THE SLIGHTEST HINT OF SUCH AN
APPROACH. 

[[HC343'(ORIGINAL DOCUMENT PAGE 343)'  INSTEAD THE COURT REASONED
THAT, IN LIGHT OF THE SCIENTIFIC NATURE OF SUCH ANALYSES, 

"THE ACCUSED HAS THE OPPORTUNITY FOR A MEANINGFUL CONFRONTATION OF
THE GOVERNMENT'S CASE AT TRIAL THROUGH THE ORDINARY PROCESSES OF CROSS
EXAMINATION OF THE GOVERNMENT'S EXPERT WITNESSES AND THE PRESENTATION
OF THE EVIDENCE OF HIS OWN EXPERTS.  THE DENIAL OF A RIGHT TO HAVE HIS
COUNSEL PRESENT AT SUCH ANALYSES DOES NOT THEREFORE VIOLATE THE SIXTH
AMENDMENT; THEY ARE NOT CRITICAL STAGES SINCE THERE IS A MINIMAL RISK
THAT HIS COUNSEL'S ABSENCE AT SUCH STAGES MIGHT DEROGATE FROM HIS RIGHT
TO A FAIR TRAIL."  ID., AT 227 - 228 (EMPHASIS ADDED). 

FINALLY, AFTER DISCUSSING THE DANGERS OF MISIDENTIFICATION ARISING OUT
OF LINEUP PROCEDURES AND THE DIFFICULTY OF RECONSTRUCTING THE LINEUP AT
TRIAL, THE COURT NOTED THAT "(INSOFAR AS THE ACCUSED'S CONVICTION MAY
REST ON A COURTROOM IDENTIFICATION IN FACT THE FRUIT OF A SUSPECT
PRETRIAL IDENTIFICATION WHICH THE ACCUSED IS HELPLESS TO SUBJECT TO
EFFECTIVE SCRUTINY AT TRIAL, THE ACCUSED IS DEPRIVED OF THAT RIGHT OF
CROSS-EXAMINATION WHICH IS AN ESSENTIAL SAFEGUARD TO HIS RIGHT TO
CONFRONT THE WITNESSES AGAINST HIM."  ID., AT 235.  THE COURT THEREFORE
CONCLUDED THAT "(SINCE IT APPEARS THAT THERE IS GRAVE POTENTIAL FOR
PREJUDICE, INTENTIONAL OR NOT, IN THE PRETRIAL LINEUP, WHICH MAY NOT BE
CAPABLE OF RECONSTRUCTION AT TRIAL, AND SINCE PRESENCE OF COUNSEL
ITSELF CAN OFTEN AVERT PREJUDICE AND ASSURE A MEANINGFUL CONFRONTATION
AT TRIAL, THERE CAN BE LITTLE DOUBT THAT FOR WADE THE POST-INDICTMENT
LINEUP WAS A CRITICAL STAGE OF THE PROSECUTION AT WHICH HE WAS 'AS MUCH
ENTITLED TO SUCH AID (OF COUNSEL) . . . AS AT THE TRIAL ITSELF.'"  ID.,
AT 236 - 237. 

THUS, CONTRARY TO THE SUGGESTION OF THE COURT, THE CONCLUSION IN
WADE THAT A PRETRIAL LINEUP IS A "CRITICAL STAGE" OF THE PROSECTUION
DID NOT IN ANY SENSE TURN ON THE FACT THAT A LINEUP INVOLVES THE
PHYSICAL "PRESENCE OF THE ACCUSED" AT A "TRIAL-LIKE CONFRONTATION" WITH
THE GOVERNMENT. 

[[HC344'(ORIGINAL DOCUMENT PAGE 344)'  AND THAT CONCLUSION MOST
CERTAINLY DID NOT TURN ON THE NOTION THAT PRESENCE OF COUNSEL WAS
NECESSARY SO THAT COUNSEL COULD OFFER LEGAL ADVICE OR "GUIDANCE" TO THE
ACCUSED AT THE LINEUP.  ON THE CONTRARY, WADE ENVISIONED COUNSEL'S
FUNCTION AT THE LINEUP TO BE PRIMARILY THAT OF A TRAINED OBSERVER, ABLE
TO DETECT THE EXISTENCE OF ANY SUGGESTIVE INFLUENCES AND CAPABLE OF
UNDERSTANDING THE LEGAL IMPLICATIONS OF THE EVENTS THAT TRANSPIRE. 
HAVING WITNESSED THE PROCEEDINGS, COUNSEL WOULD THEN BE IN A POSITION
EFFECTIVELY TO RECONSTRUCT AT TRIAL ANY UNFAIRNESS THAT OCCURRED AT THE
LINEUP, THEREBY PRESERVING THE ACCUSED'S FUNDAMENTAL RIGHT TO A FAIR
TRIAL ON THE ISSUE OF IDENTIFICATION. 

THERE IS SOMETHING IRONIC ABOUT THE COURT'S CONCLUSION TODAY THAT A
PRETRIAL LINEUP IDENTIFICATION IS A "CRITICAL STAGE" OF THE PROSECUTION
BECAUSE COUNSEL'S PRESENCE CAN HELP TO COMPENSATE FOR THE ACCUSED'S
DEFICIENCIES AS AN OBSERVER, BUT THAT A PRETRIAL PHOTOGRAPHIC
IDENTIFICATION IS NOT A "CRITICAL STAGE" OF THE PROSECUTION BECAUSE THE
ACCUSED IS NOT ABLE TO OBSERVE AT ALL.  IN MY VIEW, THERE SIMPLY IS NO
MEANINGFUL DIFFERENCE, IN TERMS OF THE NEED FOR ATTENDANCE OF COUNSEL,
BETWEEN CORPOREAL AND PHOTOGRAPHIC IDENTIFICATIONS.  AND APPLYING
ESTABLISHED AND WELL-REASONED SIXTH AMENDMENT PRINCIPLES, I CAN ONLY
CONCLUDE THAT A PRETRIAL PHOTOGRAPHIC DISPLAY, LIKE A PRETRIAL LINEUP,
IS A "CRITICAL STAGE" OF THE PROSECUTION AT WHICH THE ACCUSED IS
CONSTITUTIONALLY ENTITLED TO THE PRESENCE OF COUNSEL. 

[[DFN 

/1/  SEE KIRBY V. ILLINOIS, 406 U.S. 682 (1972). 

/2/  AT THE TIME OF RESPONDENT'S TRIAL, THE INFORMANT, ONE CLARENCE
MCFARLAND, WAS SERVING A SENTENCE FOR BANK ROBBERY.  ACCORDING TO THE
COURT OF APPEALS, "MCFARLAND HAD BEEN BEFORE THE GRAND JURY WITH REGARD
TO FIVE SEPARATE OFFENSES, IN ADDITION TO HIS BANK ROBBERY, AND HAD NOT
BEEN INDICTED ON ANY OF THEM, INCLUDING ONE IN WHICH HE HAD CONFESSED
GUILT.  THE ASSISTANT UNITED STATES ATTORNEY HAD ARRANGED TO HAVE
MCFARLAND TRANSFERRED FROM THE D. C. JAIL TO A LOCAL JAIL IN ROCKVILLE,
MARYLAND, AND IN ADDITION HAD HELPED MCFARLAND'S WIFE MOVE FROM
SOUTHEAST WASHINGTON TO AN APARTMENT NEAR THE PAROCHIAL SCHOOL THAT
MCFARLAND'S CHILDRED WERE DUE TO ATTEND.  149 U.S. APP. D. C. 1, 6 N.
7, 461 F.2D 92, 97 N. 7 (1972).  THE ASSISTANT UNITED STATES ATTORNEY
ALSO TESTIFIED THAT HE "HAD INDICATED HE WOULD TESTIFY BEFORE THE
PAROLE BOARD IN MCFARLAND'S BEHALF."  ID., AT 6, 461 F.2D AT 97. 

/3/  RESPONDENT DOES NOT CONTEND THAT HE WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO COUNSEL AT THE PRE-INDICTMENT DISPLAY OF THE BLACK
AND WHITE PHOTOGRAPHS.  TR. OF ORAL ARG. 21 - 22; BRIEF FOR RESPONDENT
32 N. 21. 

/4/  AS THE COURT OF APPEALS NOTED, THIS TESTIMONY WAS OF AT LEAST
QUESTIONABLE CREDIBILITY.  SEE N. 2, SUPRA. 

/5/  149 U.S. APP. D. C., AT 9, 461 F.2D, AT 100. 

/6/  THE COURT OF APPEALS ALSO NOTED "THAT THERE ARE AT THE VERY
LEAST STRONG ELEMENTS OF SUGGESTIVENESS IN THIS COLOR PHOTO
CONFRONTATION," AND THAT "IT IS HARD TO SEE HOW THE GOVERNMENT CAN BE
HELD TO HAVE SHOWN, BY CLEAR AND CONVINCING EVIDENCE, THAT THESE COLOR
PHOTOGRAPHS DID NOT AFFECT THE IN-COURT IDENTIFICATION MADE ONE DAY
LATER."  ID., AT 7, 14 N. 20, 461 F.2D, AT 98, 105 N. 20. 

/7/  THE COURT POINTED OUT THAT "(IMPROPER INFLUENCES MAY GO
UNDETECTED BY A SUSPECT, GUILTY OR NOT, WHO EXPERIENCES THE EMOTIONAL
TENSION WHICH WE MIGHT EXPECT IN ONE BEING CONFRONTED WITH POTENTIAL
ACCUSERS.  EVEN WHEN HE DOES OBSERVE ABUSE, IF HE HAS A CRIMINAL RECORD
HE MAY BE RELUCTANT TO TAKE THE STAND AND OPEN UP THE ADMISSION OF
PRIOR CONVICTIONS.  MOREOVER, ANY PROTESTATIONS BY THE SUSPECT OF THE
FAIRNESS OF THE LINEUP MADE AT TRIAL ARE LIKELY TO BE IN VAIN; THE
JURY'S CHOICE IS BETWEEN THE ACCUSED'S UNSUPPORTED VERSION AND THAT OF
THE POLICE OFFICERS PRESENT."  UNITED STATES V. WADE, 388 U.S. 218, 230
- 231 (1967). 

/8/  THUS, "(A) WITNESS MAY HAVE OBTAINED ONLY A BRIEF GLIMPSE OF A
CRIMINAL, OR MAY HAVE SEEN HIM UNDER POOR CONDITIONS.  EVEN IF THE
POLICE SUBSEQUENTLY FOLLOW THE MOST CORRECT PHOTOGRAPHIC IDENTIFICATION
PROCEDURES . . . THERE IS SOME DANGER THAT THE WITNESS MAY MAKE AN
INCORRECT IDENTIFICATION."  SIMMONS V. UNITED STATES, 390 U.S. 377, 383
(1968). 

/9/  SEE ALSO SOBEL, ASSAILING THE IMPERMISSIBLE SUGGESTION:
EVOLVING LIMITATIONS ON THE ABUSE OF PRE-TRIAL CRIMINAL IDENTIFICATION
METHODS, 38 BROOKLYN L. REV. 261, 264, 296 (1971); WILLIAMS,
IDENTIFICATION PARADES, (1955) CRIM. L. REV. 525, 531; COMMENT,
PHOTOGRAPHIC IDENTIFICATION: THE HIDDEN PERSUADER, 56 IOWA L. REV. 408,
419 (1970); NOTE, PRETRIAL PHOTOGRAPHIC IDENTIFICATION -- A "CRITICAL
STAGE" OF CRIMINAL PROCEEDINGS?, 21 SYRACUSE L. REV. 1235, 1241
(1970).  INDEED, RECOGNIZING THE SUPERIORITY OF CORPOREAL TO
PHOTOGRAPHIC IDENTIFICATIONS, ENGLISH COURTS HAVE LONG HELD THAT ONCE
THE ACCUSED IS IN CUSTODY, PRE-LINEUP PHOTOGRAPHIC IDENTIFICATION IS
"INDEFENSIBLE" AND GROUNDS FOR QUASHING THE CONVICTION.  REX V. HASLAM,
19 CRIM. APP. REP. 59, 60 (1925); REX V. GOSS, 17 CRIM. APP. REP. 196,
197 (1923).  SEE ALSO P. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL
CASES 71 (1965).     /10/  SEE, E. G., COMMENT, SUPRA, N. 9, AT 410 -
411; NOTE, CRIMINAL PROCEDURE -- PHOTO-IDENTIFICATION -- STOVALL
PROSPECTIVITY RULE INVOKED TO AVOID EXTENSION OF RIGHT TO COUNSEL, 43
N. Y. U. L. REV. 1019, 1021 (1968). 

/11/  SIMMONS V. UNITED STATES, SUPRA, AT 383. 

/12/  THE COURT MAINTAINS THAT "THE ETHICAL RESPONSIBILITY OF THE
PROSECUTOR" IS IN ITSELF A SUFFICIENT "SAFEGUARD" AGAINST IMPERMISSIBLE
SUGGESTION AT A PHOTOGRAPHIC DISPLAY.  SEE ANTE, AT 320.  THE SAME
ARGUMENT MIGHT, OF COURSE, BE MADE WITH RESPECT TO LINEUPS.  MOREOVER,
IT IS CLEAR THAT THE "PROSECUTOR" IS NOT ALWAYS PRESENT AT SUCH
PRETRIAL DISPLAYS.  INDEED, IN THIS VERY CASE, ONE OF THE FOUR EYE
WITNESSES WAS SHOWN THE COLOR PHOTOGRAPHS ON THE MORNING OF TRIAL BY AN
AGENT OF THE FBI, NOT IN THE PRESENCE OF THE "PROSECUTOR."  SEE 149
U.S. APP. D. C., AT 5, 461 F.2D, AT 96.  AND EVEN THOUGH "THE ETHICAL
RESPONSIBILITY OF THE PROSECUTOR" MIGHT BE AN ADEQUATE "SAFEGUARD"
AGAINST INTENTIONAL SUGGESTION, IT CAN HARDLY BE DOUBTED THAT A
"PROSECUTOR" IS, AFTER ALL, ONLY HUMAN.  HIS BEHAVIOR MAY BE FRAUGHT
WITH WHOLLY UNINTENTIONAL AND INDEED UNCONSCIOUS NUANCES THAT MIGHT
EFFECTIVELY SUGGEST THE "PROPER"  RESPONSE.  SEE P. WALL, SUPRA, N. 9,
AT 26 - 65; NAPLEY, PROBLEMS OF EFFECTING THE PRESENTATION OF THE CASE
FOR A DEFENDANT, 66 COL. L. REV. 94, 98 - 99 (1966); WILLIAMS &
HAMMELMANN, IDENTIFICATION PARADES-I, (1963) CRIM. L. REV. 479, 483. 
SEE ALSO UNITED STATES V. WADE, SUPRA, AT 229, 235, 236.  AND, OF
COURSE, AS WADE ITSELF MAKES CLEAR, UNLIKE OTHER FORMS OF UNINTENTIONAL
PROSECUTORIAL "MANIPULATION," EVEN UNINTENTIONAL SUGGESTIVENESS AT AN
IDENTIFICATION PROCEDURE INVOLVES SERIOUS RISKS OF "FREEZING" THE
WITNESS' MISTAKEN IDENTIFICATION AND CREATES ALMOST INSURMOUNTABLE
OBSTACLES TO RECONSTRUCTION AT TRIAL. 

/13/  SEE ALSO P. WALL, SUPRA, N. 9, AT 68; NAPLE, SUPRA, N. 12, AT
98 - 99; WILLIAMS & HAMMELMANN, SUPRA, N. 12, AT 484; COMMENT, SUPRA,
N. 9, AT 411 - 413; NOTE, SUPRA, N. 10, AT 1023. 

/14/  BRIEF FOR UNITED STATES 24 - 25, IN UNITED STATES V. WADE, NO.
334, O. T. 1966. 

/15/  THE COURT'S ASSERTION, ANTE, AT 317 - 319 AND N. 10, THAT
THESE DIFFICULTIES OF RECONSTRUCTION ARE SOMEHOW MINIMIZED BECAUSE THE
DEFENSE CAN "DUPLICATE" A PHOTOGRAPHIC IDENTIFICATION REFLECTS A
COMPLETE MISUNDERSTANDING OF THE ISSUES IN THIS CASE.  ASIDE FROM THE
FACT THAT LINEUPS CAN ALSO BE "DUPLICATED," THE COURT'S ASSERTION IS
WHOLLY INCONSISTENT WITH THE UNDERLYING PREMISES OF BOTH WADE AND
GILBERT.  FOR, UNLIKE THE COURT TODAY, THE COURT IN BOTH OF THESE
DECISIONS RECOGNIZED A CRITICAL DIFFERENCE BETWEEN "SYSTEMATIZED OR
SCIENTIFIC ANALYZING OF THE ACCUSED'S FINGERPRINTS, BLOOD SAMPLES,
CLOTHING, HAIR AND THE LIKE," ON THE ONE HAND, AND EYEWITNESS
IDENTIFICATION ON THE OTHER.  UNITED STATES V. WADE, SUPRA, AT 227;
GILBERT V. CALIFORNIA, 388 U.S. 263, 267 (1967).  IN ESSENCE, THE COURT
NOTED IN WADE AND GILBERT THAT, IN THE FORMER SITUATIONS, THE ACCUSED
CAN PRESERVE HIS RIGHT TO A FAIR TRIAL SIMPLY BY "DUPLICATING" THE
TESTS OF THE GOVERNMENT, THEREBY ENABLING HIM TO EXPOSE ANY ERRORS IN
THE GOVERNMENT'S ANALYSIS.  SUCH "DUPLICATION"  IS POSSIBLE, HOWEVER,
ONLY BECAUSE THE ACCUSED'S TESTS CAN BE MADE INDEPENDENTLY OF THOSE OF
THE GOVERNMENT -- THAT IS, ANY ERRORS IN THE GOVERNMENT'S ANALYSES
CANNOT AFFECT THE RELIABILITY OF THE ACCUSED'S TESTS.  THAT SIMPLY IS
NOT THE CASE, HOWEVER, WITH RESPECT TO EYEWITNESS IDENTIFICATIONS,
WHETHER CORPOREAL OR PHOTOGRAPHIC.  DUE TO THE "FREEZING EFFECT"
RECOGNIZED IN WADE, ONCE SUGGESTION HAS TAINTED THE IDENTIFICATION, ITS
MARK IS VIRTUALLY INDELIBLE.  FOR ONCE A WITNESS HAS MADE A MISTAKEN
IDENTIFICATION,"'HE IS NOT LIKELY TO GO BACK ON HIS WORD LATER ON.'" 
UNITED STATES V. WADE, SUPRA, AT 229.  AS A RESULT, ANY EFFORT OF THE
ACCUSED TO "DUPLICATE" THE INITIAL PHOTOGRAPHIC DISPLAY WILL ALMOST
NECESSARILY LEAD TO A REAFFIRMATION OF THE INITIAL MISIDENTIFICATION. 

THE COURT'S RELATED ASSERTION, THAT "EQUALITY OF ACCESS" TO THE
RESULTS OF A GOVERNMENT-CONDUCTED PHOTOGRAPHIC DISPLAY "REMOVES) ANY
INEQUALITY IN THE ADVERSARY PROCESS," ANTE, AT 319, IS SIMILARLY
FLAWED.  FOR DUE TO THE POSSIBILITIES FOR SUGGESTION, INTENTIONAL OR
UNINTENTIONAL, THE SO-CALLED "EQUALITY OF ACCESS" IS, IN REALITY,
SKEWED SHARPLY IN FAVOR OF THE PROSECUTION. 

/16/  BRIEF FOR UNITED STATES 7, IN UNITED STATES V. WADE, SUPRA.
THE COURT SEEMS TO SUGGEST THAT, UNDER NO CIRCUMSTANCES, WOULD IT BE
WILLING "TO GO SO FAR AS TO EXTEND THE RIGHT (TO COUNSEL) TO A PORTION
OF THE PROSECUTOR'S TRIAL-PREPARATION INTERVIEWS WITH WITNESSES." 
ANTE, AT 317.  THIS SUGGESTION ILLUSTRATES ONCE AGAIN THE COURT'S
READINESS IN THIS AREA TO IGNORE "REAL-WORLD"  CONSIDERATIONS FOR THE
SAKE OF "MERE FORMALISM."  KIRBY V. ILLINOIS, 406 U.S., AT 699
(BRENNAN, J., DISSENTING).  MOREOVER, THIS SUGGESTION DEMONSTRATES THE
COURT'S FAILURE TO APPRECIATE THE ESSENTIAL DIFFERENCES, OUTLINED
PERSUASIVELY BY THE COURT OF APPEALS, BETWEEN "THE PROSECUTOR'S TRIAL
PREPARATION INTERVIEWS WITH WITNESSES" AND PRETRIAL IDENTIFICATION
PROCEDURES.  SEE 149 U.S. APP. D. C., AT 10, 461 F.2D, AT 101. 

/17/  COLEMAN, WHITE, AND HAMILTON, GUARANTEED THE ASSISTANCE OF
COUNSEL AT PRELIMINARY HEARINGS AND ARRAIGNMENTS.  MASSIAH HELD THAT
INCRIMINATING STATEMENTS OF A DEFENDANT SHOULD HAVE BEEN EXCLUDED FROM
EVIDENCE WHEN IT APPEARED THAT THEY WERE OVERHEARD BY FEDERAL AGENTS
WHO, WITHOUT NOTICE TO THE DEFENDANT'S LAWYER, ARRANGED A MEETING
BETWEEN THE DEFENDANT AND AN ACCOMPLICE TURNED INFORMANT.  THUS, IT IS
AT LEAST QUESTIONABLE WHETHER MASSIAH INVOLVED A "TRIAL-LIKE
CONFRONTATION" WITH THE GOVERNMENT. 

/18/  POWELL V. ALABAMA, 287 U.S., AT 53. 

/19/  SEE ANTE, AT 313 - 316.  IN AN EFFORT TO JUSTIFY ITS
CONTENTION THAT WADE ITSELF IN SOME WAY SUPPORTS THE COURT'S WOODEN
ANALYSIS OF THE COUNSEL GUARANTEE, THE COURT POINTS TO THE SO-CALLED
"CAREFUL LIMITATION OF THE COURT'S LANGUAGE (IN WADE) TO
'CONFRONTATIONS.'"  ANTE, AT 315.  BUT WADE INVOLVED A LINEUP WHICH IS,
OF COURSE, A "CONFRONTATION."  THUS, IT IS NEITHER SURPRISING, NOR
SIGNIFICANT, THAT THE COURT INTERCHANGEABLY USED SUCH TERMS AS
"LINEUP," "CONFRONTATION" AND "PRETRIAL IDENTIFICATION" AS DESCRIPTIVE
OF THE FACTS.  INDEED, THE WADE DISSENTERS RECOGNIZED THAT WADE
LOGICALLY APPLIES, NOT ONLY TO LINEUPS, BUT "TO ANY OTHER TECHNIQUES
EMPLOYED TO PRODUCE AN IDENTIFICATION . . . ."  UNITED STATES V. WADE,
SUPRA, AT 251 (WHITE, J., CONCURRING AND DISSENTING). 

/20/  SEE UNITED STATES V. WADE, SUPRA, AT 221 - 223. 

/21/  SEE ID., AT 225 - 227.  THE COURT'S QUOTATION OF ESCOBEDO V.
ILLINOIS, 378 U.S. 478 (1964), IS PARTICULARLY INSTRUCTIVE: 

"'THE RULE SOUGHT BY THE STATE HERE, HOWEVER, WOULD MAKE THE TRIAL
NO MORE THAN AN APPEAL FROM THE INTERROGATION; AND THE "RIGHT TO USE
COUNSEL AT THE FORMAL TRIAL (WOULD BE) A VERY HOLLOW THING (IF), FOR
ALL PRACTICAL PURPOSES, THE CONVICTION IS ALREADY ASSURED BY PRETRIAL
EXAMINATION" . . . "ONE CAN IMAGINE A CYNICAL PROSECUTOR SAYING:  'LET
THEM HAVE THE MOST ILLUSTRIOUS COUNSEL, NOW.  THEY CAN'T ESCAPE THE
NOOSE.  THERE IS NOTHING THAT COUNSEL CAN DO FOR THEM AT THE
TRIAL.'"'"  UNITED STATES V. WADE, SUPRA, AT 226, QUOTING ESCOBEDO V.
ILLINOIS, SUPRA, AT 487 - 488. 

EDWARD R. KORMAN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL PETERSEN, AND JEROME M. FEIT. 

SHERMAN L. COHN, BY APPOINTMENT OF THE COURT, 408 U.S. 942, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :


















NAACP V. NEW YORK 413 U.S. 345 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA 

     NO. 72 - 129.  ARGUED FEBRUARY 27 - 28, 1973--DECIDED JUNE 21,
1973; AFFIRMED. 


    SECTIONS 4 AND 5 OF THE VOTING RIGHTS ACT OF 1965, AS AMENDED,

  ARE DESIGNED TO PROHIBIT THE USE OF TESTS OR DEVICES, OR THE

  ALTERATION OF VOTING QUALIFICATIONS OR PROCEDURES, WHEN THE

  PURPOSE OR EFFECT IS TO DEPRIVE A CITIZEN OF HIS RIGHT TO VOTE. 

  SECTIONS 4 AND 5 APPLY IN ANY STATE OR POLITICAL SUBDIVISION

  THEREOF WHICH THE ATTORNEY GENERAL DETERMINES MAINTAINED ON

  NOVEMBER 1, 1964, OR NOVEMBER 1, 1968, ANY "TEST OR DEVICE," AND

  WITH RESPECT TO WHICH THE DIRECTOR OF THE CENSUS BUREAU

  DETERMINES THAT LESS THAN HALF THE VOTING-AGE RESIDENTS WERE

  REGISTERED, OR THAT LESS THAN HALF VOTED IN THE PRESIDENTIAL

  ELECTION OF THAT NOVEMBER.  THESE DETERMINATIONS ARE EFFECTIVE ON

  PUBLICATION AND ARE NOT JUDICIALLY REVIEWABLE.  PUBLICATION

  SUSPENDS THE EFFECTIVENESS OF THE TEST OR DEVICE, WHICH MAY NOT

  THEN BE UTILIZED UNLESS A THREE-JUDGE DISTRICT COURT FOR THE

  DISTRICT OF COLUMBIA DETERMINES THAT NO SUCH TEST OR DEVICE HAS

  BEEN USED DURING THE 10 PRECEEDING YEARS "FOR THE PURPOSE OR WITH

  THE EFFECT OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT

  OF RACE OR COLOR."  SECTION 4 (A) PROVIDES FOR DIRECT APPEAL TO

  THE SUPREME COURT.  THE STATE OR POLITICAL SUBDIVISION MAY ALSO

  INSTITUTE AN ACTION PURSUANT TO ^ 5 IN THE DISTRICT COURT FOR THE

  DISTRICT OF COLUMBIA, FOR A DECLARATORY JUDGMENT THAT A PROPOSED

  ALTERATION IN VOTING QUALIFICATIONS OR PROCEDURES "DOES NOT HAVE

  THE PURPOSE AND WILL NOT HAVE THE EFFECT OF DENYING OR ABRIDGING

  THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR."  THE STATUTE ALSO

  PERMITS THE CHANGE TO BE ENFORCED WITHOUT THE COURT PROCEEDING IF

  IT HAS BEEN SUBMITTED TO THE ATTORNEY GENERAL AND HE HAS NOT

 INTERPOSED AN OBJECTION WITHIN 60 DAYS.  NEITHER THE ATTORNEY

  GENERAL'S FAILURE TO OBJECT NOR A ^ 5 DECLARATORY JUDGMENT BARS A

  SUBSEQUENT PRIVATE ACTION TO ENJOIN ENFORCEMENT OF THE CHANGE. 

  SUCH AN ACTION SHALL ALSO BE DETERMINED BY A THREE-JUDGE COURT

  AND IS APPEALABLE TO THE SUPREME COURT.  THE ATTORNEY GENERAL, ON

  JULY 31, 1970, FILED WITH THE FEDERAL REGISTER HIS DETERMINATION

  THAT NEW YORK ON NOVEMBER 1, 1968, MAINTAINED A TEST OR DEVICE AS

DEFINED IN THE ACT.  ON MARCH 27, 1971, THE FEDERAL REGISTER

  PUBLISHED THE CENSUS DIRECTOR'S DETERMINATION THAT IN THE

  COUNTIES OF BRONX, KINGS, AND NEW YORK, "LESS THAN 50 PER CENTUM

  OF THE PERSONS OF VOTING AGE RESIDING THEREIN VOTED IN THE

  PRESIDENTIAL ELECTION OF NOVEMBER 1968."  NEW YORK STATE FILED AN

  ACTION ON DECEMBER 3, 1971, SEEKING A JUDGMENT DECLARING THAT

  DURING THE PRECEDING 10 YEARS THE THREE COUNTIES HAD NOT USED THE

  STATE'S VOTING QUALIFICATIONS "FOR THE PURPOSE OR WITH THE EFFECT

  OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR

COLOR" AND THAT ^^ 4 AND 5 WERE THUS INAPPLICABLE TO THE

COUNTIES.  PURSUANT TO STIPULATION, THE UNITED STATES FILED ITS

  ANSWER ON MARCH 10, 1972, ALLEGING, INTER ALIA, THAT IT WAS

  WITHOUT KNOWLEDGE OR INFORMATION TO FORM A BELIEF AS TO THE TRUTH

  OF NEW YORK'S ALLEGATION THAT THE LITERACY TESTS WERE NOT

  ADMINISTERED DISCRIMINATORILY.  ON MARCH 17, NEW YORK FILED A

  MOTION FOR SUMMARY JUDGMENT, SUPPORTED BY AFFIDAVITS, AND ON

  APRIL 3 THE UNITED STATES FORMALLY CONSENTED TO THE ENTRY OF THE

  DECLARATORY JUDGMENT SOUGHT BY THE STATE.  APPELLANTS FILED THEIR

  MOTION TO INTERVENE ON APRIL 7.  NEW YORK OPPOSED THE MOTION

  CLAIMING THAT: IT WAS UNTIMELY, AS THE SUIT HAD BEEN PENDING FOR

  MORE THAN FOUR MONTHS; IT HAD BEEN PUBLICIZED IN EARLY FEBRUARY,

  AND APPELLANTS DID NOT DENY THAT THEY KNOW THE ACTION WAS

  PENDING; APPELLANTS FAILED TO ALLEGE APPROPRIATE SUPPORTING

  FACTS; NO APPELLANT CLAIMED TO BE A VICTIM OF VOTING

  DISCRIMINATION; APPELLANTS' INTERESTS WERE ADEQUATELY REPRESENTED

  BY THE UNITED STATES; DELAY WOULD PREJUDICE IMPENDING ELECTIONS;

  AND APPELLANTS COULD RAISE DISCRIMINATION ISSUES IN THE STATE AND

  FEDERAL COURTS.  ON APRIL 13, THE THREE-JUDGE COURT DENIED THE

  MOTION TO INTERVENE AND GRANTED SUMMARY JUDGMENT FOR NEW YORK. 

WHILE THE APPEAL WAS PENDING, IT WAS DISCLOSED THAT THE ATTORNEY

  WHO EXECUTED AFFIDAVITS FOR APPELLANTS HAD NOT BEGUN EMPLOYMENT

  WITH APPELLANT NAACP LEGAL AND DEFENSE & EDUCATION FUND, INC.,

  UNTIL MARCH 9, 1972, AND THAT JUSTICE DEPARTMENT ATTORNEYS MET

  WITH TWO INDIVIDUAL APPELLANTS IN JANUARY 1972 DURING THE COURSE

  OF THEIR INVESTIGATION.  HELD: 

      1.  THE WORDS "ANY APPEAL" IN SEC. 4 (A) ENCOMPASS AN APPEAL
BY

  A WOULD-BE, BUT UNSUCCESSFUL, INTERVENOR, AND APPELLANTS' APPEAL

  PROPERLY LIES TO THIS COURT.  PP. 353 - 356. 

     2.  THE MOTION TO INTERVENE WAS UNTIMELY, AND IN THE LIGHT OF

  THAT FACT AND ALL THE OTHER CIRCUMSTANCES OF THIS CASE, THE

  DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE

  MOTION.  PP. 364 - 369. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, POWELL, AND REHNQUIST, JJ., JOINED. 
DOUGLAS, J., POST, P. 369, AND BRENNAN, J., POST, P. 372, FILED
DISSENTING OPINIONS.  MARSHALL, J., TOOK NO PART IN THE CONSIDERATION
OR DECISION OF THE CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

[[HC347'(ORIGINAL DOCUMENT PAGE 347)' 

THIS APPEAL FROM A THREE-JUDGE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA COMES TO US PURSUANT TO THE DIRECT-REVIEW PROVISIONS OF ^ 4
(A) OF THE VOTING RIGHTS ACT OF 1965, PUB. L. 89 - 110, 79 STAT. 438,
AS AMENDED, 42 U.S.C. ^ 1973B (A).  /1/  THE APPELLANTS /2/  SEEK
REVIEW OF AN ORDER DATED APRIL 13, 1972, UNACCOMPANIED BY ANY OPINION,
DENYING THEIR MOTION TO INTERVENE /3/  IN A SUIT THAT HAD BEEN
INSTITUTED AGAINST THE UNITED STATES BY THE STATE OF NEW YORK, ON
BEHALF OF ITS COUNTIES OF NEW YORK, BRONX, AND KINGS. 

[[HC349'(ORIGINAL DOCUMENT PAGE 349)'  NEW YORK'S ACTION WAS ONE FOR
A JUDGMENT DECLARING THAT, DURING THE 10 YEARS PRECEDING THE FILING OF
THE SUIT, VOTER QUALIFICATIONS PRESCRIBED BY THE STATE HAD NOT BEEN
USED BY THE THREE NAMED COUNTIES "FOR THE PURPOSE OR WITH THE EFFECT OF
DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR,"
WITHIN THE LANGUAGE AND MEANING OF ^ 4 (A), AND THAT THE PROVISIONS OF
^^ 4 AND 5 OF THE ACT, AS AMENDED, 42 U.S.C. ^^ 1973B AND 1973C, ARE,
THEREFORE, INAPPLICABLE TO THE THREE COUNTIES. 

IN ADDITION TO DENYING THE APPELLANTS' MOTION TO INTERVENE, THE
DISTRICT COURT, BY THE SAME ORDER, GRANTED NEW YORK'S MOTION FOR
SUMMARY JUDGMENT.  THIS WAS BASED UPON A FORMAL CONSENT BY THE
ASSISTANT ATTORNEY GENERAL IN CHARGE OF THE CIVIL RIGHTS DIVISION, ON
BEHALF OF THE UNITED STATES, CONSISTENT WITH THE GOVERNMENT'S ANSWER
THERETOFORE FILED, "TO THE ENTRY OF A DECLARATORY JUDGMENT UNDER
APP. 39A.  THE CONSENT WAS SUPPORTED BY AN ACCOMPANYING AFFIDAVIT
RECITING, "I CONCLUDE, ON BEHALF OF THE ACTING ATTORNEY GENERAL THAT
THERE IS NO REASON TO BELIEVE THAT A LITERACY TEST HAS BEEN USED IN THE
PAST 10 YEARS IN THE COUNTIES OF NEW YORK, KINGS AND BRONX WITH THE
PURPOSE OR EFFECT OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT
OF RACE OR COLOR, EXCEPT FOR ISOLATED INSTANCES WHICH HAVE BEEN
SUBSTANTIALLY CORRECTED AND WHICH, UNDER PRESENT PRACTICE CANNOT
REOCCUR."  APP. 42A - 43A. 

APPELLANTS CONTEND HERE THAT THEIR MOTION TO INTERVENE SHOULD HAVE
BEEN GRANTED BECAUSE (1) THE UNITED STATES UNJUSTIFIABLY DECLINED TO
OPPOSE NEW YORK'S MOTION FOR SUMMARY JUDGMENT; (2) THE APPELLANTS HAD
INITIATED OTHER LITIGATION IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK TO COMPEL COMPLIANCE WITH ^^ 4 AND 5 OF
THE ACT; AND (3) THE APPELLANTS POSSESSED "SUBSTANTIAL DOCUMENTARY
EVIDENCE," JURISDICTIONAL STATEMENT 7, TO OFFER IN OPPOSITION TO THE
ENTRY OF THE DECLARATORY JURDGMENT. 

[[HC350'(ORIGINAL DOCUMENT PAGE 350)' 

FACED WITH THE INITIAL QUESTION WHETHER THIS COURT HAS JURISDICTION,
ON DIRECT APPEAL, TO REVIEW THE DENIAL OF THE APPELLANTS' MOTION TO
INTERVENE, WE POSTPONED DETERMINATION OF THAT ISSUE TO THE HEARING OF
THE CASE ON THE MERITS.  409 U.S. 978. 

        I 

CLEARLY INDICATES THAT THE PURPOSE OF THE ACT IS TO ASSIST IN THE
EFFECTUATION OF THE FIFTEENTH AMENDMENT, EVEN THOUGH THAT AMENDMENT IS
SELF-EXECUTING, AND TO INSURE THAT NO CITIZEN'S RIGHT TO VOTE IS DENIED
OR ABRIDGED ON ACCOUNT OF RACE OR COLOR.  SOUTH CAROLINA V. KATZENBACH,
383 U.S. 301 (1966); APACHE COUNTY V. UNITED STATES, 256 F.SUPP.  903
(DC 1966).  SECTIONS 4 AND 5, 42 U.S.C. ^^ 1973B AND 1973C, ARE
DESIGNED TO PROHIBIT THE USE OF TESTS OR DEVICES, OR THE ALTERATION OF
VOTING QUALIFICATIONS OR PROCEDURES, WHEN THE EFFECT IS TO DEPRIVE A
CITIZEN OF HIS RIGHT TO VOTE.  SECTION 4 (C) DEFINES THE PHRASE "TEST
OR DEVICE" TO MEAN 

"ANY REQUIREMENT THAT A PERSON AS A PREREQUISITE FOR VOTING OR
REGISTRATION FOR VOTING (1) DEMONSTRATE THE ABILITY TO READ, WRITE,
UNDERSTAND, OR INTERPRET ANY MATTER, (2) DEMONSTRATE ANY EDUCATIONAL
ACHIEVEMENT OR HIS KNOWLEDGE OF ANY PARTICULAR SUBJECT, (3) POSSESS
GOOD MORAL CHARACTER, OR (4) PROVE HIS QUALIFICATIONS BY THE VOUCHER OF
REGISTERED VOTERS OR MEMBERS OF ANY OTHER CLASS."  42 U.S.C. ^
1973BC). 

[[HC351'(ORIGINAL DOCUMENT PAGE 351)' 

POLITICAL SUBDIVISION OF A STATE WHICH THE ATTORNEY GENERAL DETERMINES
MAINTAINED ON NOVEMBER 1, 1964, OR NOVEMBER 1, 1968, ANY "TEST OR
DEVICE," AND WITH RESPECT TO WHICH THE DIRECTOR OF THE BUREAU OF THE
CENSUS DETERMINES THAT LESS THAN HALF THE RESIDENTS OF VOTING AGE THERE
WERE REGISTERED ON THE SPECIFIED DATE, OR THAT LESS THAN HALF OF SUCH
PERSONS VOTED IN THE PRESIDENTIAL ELECTION OF THAT NOVEMBER.  THESE
DETERMINATIONS ARE EFFECTIVE UPON PUBLICATION IN THE FEDERAL REGISTER
AND ARE NOT REVIEWABLE IN ANY COURT.  42 U.S.C. ^ 1973B (B). 

THE PRESCRIBED PUBLICATION IN THE FEDERAL REGISTER SUSPENDS THE
EFFECTIVENESS OF THE TEST OR DEVICE, AND IT MAY NOT THEN BE UTILIZED
UNLESS A THREE-JUDGE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DETERMINES, BY DECLARATORY JUDGMENT, THAT NO SUCH TEST OR DEVICE HAS
BEEN USED DURING THE 10 YEARS PRECEDING THE FILING OF THE ACTION "FOR
THE PURPOSE OR WITH THE EFFECT OF DENYING OR ABRIDGING THE RIGHT TO
VOTE ON ACCOUNT OF RACE OR COLOR."  ^ 4 (A), 42 U.S.C. ^ 1973B (A). 
THE SAME SECTION STATES THAT "ANY APPEAL SHALL LIE TO THE SUPREME
COURT."  AND THE DISTRICT COURT "SHALL RETAIN JURISDICTION OF ANY
ACTION PURSUANT TO THIS SUBSECTION FOR FIVE YEARS AFTER JUDGMENT AND
SHALL REOPEN THE ACTION UPON MOTION OF THE ATTORNEY GENERAL ALLEGING
THAT A TEST OR DEVICE HAS BEEN USED FOR THE PURPOSE OR WITH THE EFFECT
OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR
COLOR." 

SUBDIVISION WITH RESPECT TO WHICH A DETERMINATION HAS BEEN MADE UNDER ^
4 (B) "SHALL ENACT OR SEEK TO ADMINISTER ANY VOTING QUALIFICATION OR
PREREQUISITE TO VOTING, OR STANDARD, PRACTICE, OR PROCEDURE WITH
RESPECT TO VOTING DIFFERENT FROM THAT IN FORCE OR EFFECT" ON NOVEMBER
1, 1964, OR NOVEMBER 1, 1968.  /5/ 

[[HC352'(ORIGINAL DOCUMENT PAGE 352)'  THE STATE OR POLITICAL
SUBDIVISION MAY THEN INSTITUTE AN ACTION IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA FOR A DECLARATORY JUDGMENT THAT WHAT
WAS DONE "DOES NOT HAVE THE PURPOSE AND WILL NOT HAVE THE EFFECT OF
DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR." 
UNLESS AND UNTIL THE COURT ENTERS SUCH JUDGMENT "NO PERSON SHALL BE
DENIED THE RIGHT TO VOTE FOR FAILURE TO COMPLY WITH SUCH QUALIFICATION,
PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE."  THE STATUTE CONTAINS
A PROVISO, HOWEVER, THAT THE CHANGE MAY BE ENFORCED WITHOUT THE COURT
PROCEEDING IF IT HAS BEEN SUBMITTED TO THE ATTORNEY GENERAL OF THE
UNITED STATES AND HE "HAS NOT INTERPOSED AN OBJECTION WITHIN SIXTY DAYS
AFTER SUCH SUBMISSION."  NEITHER THE ATTORNEY GENERAL'S FAILURE TO
OBJECT NOR A DECLARATORY JUDGMENT ENTERED UNDER ^ 5 SHALL BAR A
SUBSEQUENT ACTION BY A PRIVATE PARTY TO ENJOIN ENFORCEMENT OF THE
CHANGE.  HERE AGAIN, THE ACTION SHALL BE DETERMINED BY A THREE-JUDGE
COURT "AND ANY APPEAL SHALL LIE TO THE SUPREME COURT." 

        II 

ON JULY 31, 1970, THE ATTORNEY GENERAL FILED WITH THE FEDERAL
REGISTER HIS DETERMINATION THAT NEW YORK ON NOVEMBER 1, 1968,
MAINTAINED A TEST OR DEVICE AS DEFINED IN ^ 4 (C) OF THE ACT.  THIS WAS
PUBLISHED THE FOLLOWING DAY.  35 FED. REG. 12354.  ON MARCH 27, 1971,
THERE WAS PUBLISHED IN THE FEDERAL REGISTER THE DETERMINATION BY THE
DIRECTOR OF THE BUREAU OF THE CENSUS THAT IN THE COUNTIES OF BRONX,
KINGS, AND NEW YORK, IN THE STATE OF NEW YORK, "LESS THAN 50 PER CENTUM
OF THE PERSONS OF VOTING AGE RESIDING THEREIN VOTED IN THE PRESIDENTIAL
ELECTION OF NOVEMBER 1968."  36 FED. REG. 5809. 

[[HC353'(ORIGINAL DOCUMENT PAGE 353)' 

THE PRESENT ACTION WAS INSTITUTED BY THE STATE OF NEW YORK WITH THE
FILING OF ITS ORIGINAL COMPLAINT ON DECEMBER 3, 1971, IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  THE APPELLANTS
CONTEND THAT THE DISTRICT COURT'S ORDER DENYING THEM INTERVENTION IN
THAT ACTION IS DIRECTLY APPEALABLE TO THIS COURT UNDER ^ 4 (A) OF THE
ACT. 

THE UNITED STATES "SUBSTANTIALLY" AGREES THAT THIS COURT HAS
JURISDICTION TO REVIEW ON DIRECT APPEAL THE DENIAL OF INTERVENTION IN
AN ACTION OF THIS KIND.  /6/  BRIEF FOR UNITED STATES 21 N. 15.  NEW
YORK SUGGESTS THAT THE APPEAL SHOULD BE DISMISSED BECAUSE THE
APPELLANTS HAVE NOT ESTABLISHED INTERVENTION AS OF RIGHT AND HAVE NOT
DEMONSTRATED AN ABUSE OF DISCRETION BY THE DISTRICT COURT IN DENYING
PERMISSIVE INTERVENTION.  BRIEF FOR APPELLEE 22 - 23.  WE MUST
DETERMINE FOR OURSELVES, OF COURSE, THE SCOPE OF OUR JURISDICTION,
SINCE "JURISDICTION OF THE FEDERAL COURTS -- THEIR POWER TO ADJUDICATE
- IS A GRANT OF AUTHORITY TO THEM BY CONGRESS AND THUS BEYOND THE SCOPE
OF LITIGANTS TO CONFER."  NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165,
167 (1939); MITCHELL V. MAURER, 293 U.S. 237, 244 (1934). 

THE JURISDICTIONAL ISSUE IS SIMPLY PHRASED: WHETHER "ANY APPEAL,"
WITHIN THE LANGUAGE OF THE SECOND PARAGRAPH OF ^ 4 (A), INCLUDES AN
APPEAL BY A WOULD-BE, BUT UNSUCCESSFUL, INTERVENOR.  CERTAINLY, THE
WORDS "ANY APPEAL" ARE SUBJECT TO BROAD CONSTRUCTION; THEY COULD BE
SAID TO INCLUDE REVIEW OF ANY MEANINGFUL JUDICIAL DETERMINATION MADE IN
THE PROGRESS OF THE ^ 4 LAWSUIT. 

[[HC354'(ORIGINAL DOCUMENT PAGE 354)'  THAT CONGRESS INTENDED A
BROAD MEANING IS APPARENT FROM ITS EXPRESSED CONCERN THAT VOTING
RESTRAINTS ON ACCOUNT OF RACE OR COLOR SHOULD BE REMOVED AS QUICKLY AS
POSSIBLE IN ORDER TO "OPEN THE DOOR TO THE EXERCISE OF CONSTITUTIONAL
RIGHTS CONFERRED ALMOST A CENTURY AGO."  H. R. REP. NO. 439, 89TH
CONG., 1ST SESS., 11 (1965).  SEE S. REP. NO. 162, PT. 3, 89TH CONG.,
1ST SESS., 6 - 7 (1965).  INDEED, THE VOTING RIGHTS ACT OF 1965 WAS AN
ADDITION TO, AND BUTTRESSED, ^ 2004 OF THE REVISED STATUTES, AS THAT
1960, AND 1964, 71 STAT. 637, 74 STAT. 90, AND 78 STAT. 241, CODIFIED
AS 42 U.S.C. ^ 1971.  WHEN THE 1965 ACT WAS UNDER CONSIDERATION BY THE
CONGRESS, ^ 1971 (C) ALREADY EMPOWERED THE ATTORNEY GENERAL TO
INSTITUTE A CIVIL ACTION TO PROTECT THE RIGHT TO VOTE FROM DEPRIVATION
BECAUSE OF RACE OR COLOR OR FROM INTERFERENCE BY THREAT, COERCION, OR
INTIMIDATION.  SECTION 1971 (G) FURTHER PROVIDED THAT, IN SUCH A SUIT,
THE ATTORNEY GENERAL COULD REQUEST A THREE-JUDGE COURT, AND "IT SHALL
BE THE DUTY OF THE JUDGES SO DESIGNATED TO ASSIGN THE CASE FOR HEARING
AT THE EARLIEST PRACTICABLE DATE . . . AND TO CAUSE THE CASE TO BE IN
EVERY WAY EXPEDITED."  FURTHER, AN APPEAL FROM THE FINAL JUDGMENT OF
THAT COURT WAS TO THE SUPREME COURT. 

DESPITE THIS EXISTING STATUTORY PROVISION DESIGNED TO HASTEN THE
REMOVAL OF BARRIERS TO THE RIGHT TO VOTE, THE CONGRESS DETERMINED, IN
1965, THAT THE ENFORCEMENT OF THE VOTING RIGHTS STATUTES "HAS
ENCOUNTERED SERIOUS OBSTACLES IN VARIOUS REGIONS OF THE COUNTRY,"  AND
PROGRESS "HAS BEEN PAINFULLY SLOW, IN PART BECAUSE OF THE INTRANSIGENCE
OF STATE AND LOCAL OFFICIALS AND REPEATED DELAYS IN THE JUDICIAL
PROCESS."  H. R. REP. NO. 439, SUPRA, AT 9.  SEE SOUTH CAROLINA V.
KATZENBACH, 383 U.S., AT 309 - 315, AND ALLEN V. STATE BOARD OF
ELECTIONS, 393 U.S. 544, 556 N. 21 (1969).  CONGRESS THUS PRODUCED THE
VOTING RIGHTS ACT OF 1965 IN RESPONSE TO THIS RECOGNIZED PROBLEM AND
PROVIDED IN THAT ACT THAT "ANY APPEAL" IN A ^ 4 (A) THREE-JUDGE
PROCEEDING SHALL LIE TO THIS COURT. 

[[HC355'(ORIGINAL DOCUMENT PAGE 355)'  THIS CONTRASTS WITH THE
LANGUAGE IN THE EARLIER THERETOFORE EXISTING STATUTE PROVIDING FOR AN
APPEAL HERE ONLY "FROM THE FINAL JUDGMENT"  OF THE THREE-JUDGE COURT,
SEC. 1971 (G).  THE BROADER LANGUAGE OF SEC. 4 (A), WHEN VIEWED IN THE
LIGHT OF CONGRESS' CONCERN ABOUT HASTENING THE RESOLUTION OF SUITS
INVOLVING VOTING RIGHTS, SEE APACHE COUNTY V. UNITED STATES, 256
F.SUPP., AT 907, PROMPTS US TO CONCLUDE THAT THE UNSUCCESSFUL
INTERVENOR'S ^ 4 (A) APPEAL IS DIRECTLY HERE AND NOT TO THE COURT OF
APPEALS. 

THIS CONCLUSION IS NOT WITHOUT OTHER RELEVANT STATUTORY PRECEDENT. 
IT HAS LONG BEEN SETTLED THAT AN UNSUCCESSFUL INTERVENOR IN A
GOVERNMENT-INITIATED CIVIL ANTITRUST ACTION MAY APPEAL DIRECTLY TO THIS
COURT UNDER ^ 2 OF THE EXPEDITING ACT, 15 U.S.C. ^ 29.  /7/  UNITED
STATES V. CALIFORNIA CANNERIES, 279 U.S. 553, 559 (1929); SUTPHEN
ESTATES V. UNITED STATES, 342 U.S. 19, 20 (1951); CASCADE NATURAL GAS
CORP. V. EL PASO NATURAL GAS CO., 386 U.S. 129, 132 (1967). 

EARLIER THIS TERM, IN TIDEWATER OIL CO. V. UNITED STATES, 409 U.S.
151 (1972), WE HELD THAT ^ 2 OF THE EXPEDITING ACT LODGED IN THIS COURT
EXCLUSIVE APPELLATE JURISDICTION OVER INTERLOCUTORY, AS WELL AS FINAL,
ORDERS IN GOVERNMENT CIVIL ANTITRUST CASES.  IN SO HOLDING, WE
EMPHASIZED CONGRESS' DETERMINATION "TO SPEED APPELLATE REVIEW."  ID.,
AT 155.  AS WE HAVE NOTED ABOVE, CONGRESS HAS EXPRESSED A SIMILAR NEED
FOR SPEED IN ADJUDICATING VOTING RIGHTS CASES.  WE COULD NOT JUSTIFY
DISSIMILAR TREATMENT TO AN UNSUCCESSFUL INTERVENOR UNDER THE PARALLEL
SEC. 4 (A) OF THE CIVIL RIGHTS ACT.     FURTHER SUPPORT FOR THIS RESULT
IS SUPPLIED WHEN ONE CONTRASTS THE SPECIFIC APPEAL PROVISION OF ^ 4 (A)
WITH 28 U.S.C. ^ 1253, /8/  ALLOWING FOR A DIRECT APPEAL TO THIS COURT
FROM AN ORDER GRANTING OR DENYING AN INTERLOCUTORY OR PERMANENT
INJUNCTION "IN ANY CIVIL ACTION, SUIT, OR PROCEEDING REQUIRED BY ANY
ACT OF CONGRESS TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE
JUDGES." 

[[HC356'(ORIGINAL DOCUMENT PAGE 356)'  THAT SECTION PROVIDES THAT
"ANY PARTY" MAY APPEAL HERE EXCEPT "AS OTHERWISE PROVIDED BY LAW." 
RELATES TO "ANY APPEAL"; THE LATTER SPEAKS ONLY OF "ANY PARTY."  THE
DIFFERENCE IS OBVIOUS, AND THE BROADER PURPORT OF CONGRESS UNDER ^ 4
(A) IS MANIFEST.   WE CONCLUDE, THEREFORE, THAT THIS COURT HAS
JURISDICTION, ON DIRECT APPEAL BY ONE DENIED INTERVENTION IN A ^ 4 (A)
ACTION, TO DETERMINE WHETHER THE DISTRICT COURT ERRED IN DENYING THE
MOTION TO INTERVENE. 

        III 

AS ORIGINALLY ENACTED, ^^ 4 AND 5 OF THE VOTING RIGHTS ACT OF 1965
RELATED ONLY TO A PERIOD OF FIVE PRECEEDING YEARS, TO A TEST OR DEVICE
IN EFFECT ON NOVEMBER 1, 1964, TO A PAUCITY OF PERSONS REGISTERED ON
THAT DATE, AND TO A PAUCITY OF VOTERS IN THE PRESIDENTIAL ELECTION OF
1964.  79 STAT. 438, 439.  IN 1970, HOWEVER, CONGRESS ENACTED THE
VOTING RIGHTS ACT AMENDMENTS OF 1970.  PUB. L. 91 - 285, 84 STAT. 314. 
THIS NEW LEGISLATION, AMONG OTHER THINGS, RELATED ^^ 4 AND 5 TO TEN,
RATHER THAN FIVE, PRECEDING YEARS AND, IN ADDITION TO THE NOVEMBER 1,
1964, DATE AND THE PRESIDENTIAL ELECTION OF THAT YEAR, TO NOVEMBER 1,
1968, AND THE 1968 ELECTION. 

[[HC357'(ORIGINAL DOCUMENT PAGE 357)'  ALSO, THE 1970 ACT SUSPENDED
THE USE OF ANY TEST OR DEVICE "IN ANY FEDERAL, STATE, OR LOCAL
ELECTION" PRIOR TO AUGUST 6, 1975, WITHOUT REGARD TO WHETHER A
DETERMINATION HAS BEEN MADE THAT ^ 4 COVERED A PARTICULAR STATE OR
POLITICAL SUBDIVISION.  42 U.S.C. ^ 1973AA.  SEE OREGON V. MITCHELL,
400 U.S. 112, 131 - 132 (1970) (OPINION OF BLACK, J.). 

THE THREE NEW YORK COUNTIES THAT THE PRESENT LITIGATION CONCERNS
WERE NOT COVERED BY ^^ 4 AND 5 OF THE ORIGINAL 1965 ACT.  THEY BECAME
SUBJECT THERETO BECAUSE OF THE PROVISIONS OF THE 1970 ACT AND THE
RESPECTIVE PUBLISHED DETERMINATIONS, HEREINABOVE DESCRIBED, OF THE
ATTORNEY GENERAL AND THE DIRECTOR OF THE BUREAU OF THE CENSUS.  INDEED,
IT IS CLEAR THAT THE THREE COUNTIES WERE A DEFINITE TARGET OF THE 1970
AMENDMENTS.  SEE, E. G., 116 CONG. REC. 6659 (1970) (REMARKS OF SEN.
COOPER), ID., AT 20161 AND 20165 (REMARKS OF CONGS.  CELLER AND ALBERT,
RESPECTIVELY). 

IT WAS IN DECEMBER 1971, DURING THE PENDENCY OF STATE LEGISLATIVE
PROCEEDINGS FOR THE REDRAFTING OF CONGRESSIONAL AND STATE SENATE AND
ASSEMBLY DISTRICT LINES, /9/  THAT THE STATE OF NEW YORK FILED ITS
COMPLAINT IN THE PRESENT ACTION.  /10/ 

[[HC358'(ORIGINAL DOCUMENT PAGE 358)'  THE AMENDED COMPLAINT, FILED
13 DAYS LATER, ALLEGED THAT CERTAIN OF THE STATE'S QUALIFICATIONS FOR
REGISTRATION AND VOTING, PRESCRIBED BY NEW YORK'S CONSTITUTION, ART.
II, ^ 1, AND BY ITS ELECTION LAW, ^^ 150 AND 168, AS AMENDED (THE
ABILITY TO READ AND WRITE ENGLISH, THE ADMINISTRATION OF A LITERACY
TEST, AND THE PRESENTATION OF EVIDENCE OF LITERACY IN LIEU OF THE
TEST), HAD NOT BEEN USED DURING THE PRECEDING 10 YEARS "FOR THE PURPOSE
OR WITH THE EFFECT OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT
OF RACE OR COLOR," APP. 6A; THAT THE STATE'S LITERACY REQUIREMENTS WERE
SUSPENDED IN 1970 AND REMAINED SUSPENDED; THAT AFTER ENACTMENT OF THE
1965 ACT, THE NEW YORK CITY BOARD OF ELECTIONS PROVIDED ENGLISH-SPANISH
AFFIDAVITS TO BE EXECUTED IN LIEU OF A DIPLOMA OR CERTIFICATE IN
CONFORMITY WITH THE REQUIREMENTS OF THE ACT; AND THAT, BEGINNING IN
1964 AND CONTINUING THROUGH 1971, WITH THE EXCEPTION OF 1967, THERE
WERE VOTER REGISTRATION DRIVES EVERY SUMMER DESIGNED TO INCREASE THE
NUMBER OF REGISTERED VOTERS IN THE THREE NAMED COUNTIES. 

NEW YORK AND THE UNITED STATES STIPULATED THAT THE GOVERNMENT COULD
FILE ITS ANSWER OR OTHER PLEADING BY MARCH 10, 1972.  THE ANSWER WAS
FILED ON THAT DAY.  THE GOVERNMENT THEREIN ADMITTED THAT ENGLISH
SPANISH AFFIDAVITS WERE PROVIDED BY THE CITY BOARD OF ELECTIONS BUT
AVERRED, ON INFORMATION AND BELIEF, THAT SUCH AFFIDAVITS WERE NOT SO
PROVIDED PRIOR TO 1967. 

[[HC359'(ORIGINAL DOCUMENT PAGE 359)'  THE ANSWER ALSO ALLEGED THAT
THE UNITED STATES WAS WITHOUT KNOWLEDGE OR INFORMATION SUFFICIENT TO
FORM A BELIEF AS TO THE TRUTH OF THE PLAINTIFF'S ALLEGATION THAT THE
LITERACY TESTS WERE ADMINISTERED WITH NO INTENTION OR EFFECT TO ABRIDGE
OR DENY THE RIGHT TO VOTE ON THE BASIS OF RACE OR COLOR. 

ON MARCH 17 NEW YORK FILED ITS MOTION FOR SUMMARY JUDGMENT.  THIS
WAS SUPPORTED BY AFFIDAVITS FROM THE ADMINISTRATOR FOR THE BOARD OF
ELECTIONS IN THE CITY OF NEW YORK "WHICH INCLUDES THE COUNTIES OF NEW
YORK, BRONX AND KINGS," THE CHIEF OF THE BUREAU OF ELEMENTARY AND
SECONDARY EDUCATIONAL TESTING OF THE NEW YORK STATE EDUCATION
DEPARTMENT, AND THE RESPECTIVE CHIEF CLERKS OF THE NEW YORK, BRONX, AND
BROOKLYN BOROUGH OFFICES OF THE NEW YORK CITY BOARD OF ELECTIONS.  APP.
15A - 32A.  THESE AFFIDAVITS STATED THAT THOSE INSTANCES WHERE THE
SUSPENSION OF LITERARY TESTS HAD BEEN IGNORED OR OVERLOOKED BY ELECTION
OFFICIALS WERE ISOLATED AND THAT STEPS HAD BEEN TAKEN TO RESOLVE THAT
PROBLEM.  THE AFFIDAVITS ALSO STATED THAT SINCE 1964, WITH THE
EXCEPTION OF 1967, THE BOARD OF ELECTIONS HAD CONDUCTED SUMMER VOTER
REGISTRATION DRIVES DIRECTED PARTICULARLY TO HIGH-DENSITY BLACK
POPULATION AREAS.  IN ITS MEMORANDUM, FILED WITH THE DISTRICT COURT, IN
SUPPORT OF ITS MOTION, NEW YORK PRESENTED A HISTORY OF ITS USE OF
LITERACY TESTS /11/  AND CONCLUDED,"(SINCE IT WAS NEVER THE PRACTICE OF
ADMINISTERING THE TESTS TO DISCRIMINATE AGAINST ANY PERSON ON ACCOUNT
OF RACE OR COLOR, AND SINCE THE FILING REQUIREMENTS OF THE VOTING
RIGHTS ACT ARE LEADING TO DELAYS WHICH MAY WELL DISRUPT THE POLITICAL
PROCESS IN NEW YROK, THIS ACTION FOR DECLARATORY JUDGMENT HAS BEEN
BROUGHT." 

 HC360'(ORIGINAL DOCUMENT PAGE 360)'  MEMORANDUM 4 - 5.  SEE SOUTH
CAROLINA V. KATZENBACH, 383 U.S., AT 332. 

TWO AND ONE-HALF WEEKS LATER, ON APRIL 3, THE UNITED STATES FILED
ITS FORMAL CONSENT, HEREINABOVE DESCRIBED, TO THE ENTRY OF THE
DECLARATORY JUDGMENT FOR WHICH NEW YORK HAD MOVED.  THE ACCOMPANYING
AFFIDAVIT OF THE ASSISTANT ATTORNEY GENERAL STATED THAT THE DEPARTMENT
OF JUSTICE HAD CONDUCTED "AN INVESTIGATION WHICH CONSISTED OF
EXAMINATION OF REGISTRATION RECORDS IN SELECTED PRECINCTS IN EACH
COVERED COUNTY, INTERVIEWS OF CERTAIN ELECTION AND REGISTRATION
OFFICIALS AND INTERVIEWS OF PERSONS FAMILIAR WITH REGISTRATION ACTIVITY
IN BLACK AND PUERTO RICAN NEIGHBORHOODS IN THOSE COUNTIES."  APP. 40A. 
THE ASSISTANT ATTORNEY GENERAL THEN REACHED THE CONCLUSION, APP. 42A -
43A, QUOTED SUPRA, AT 349. 

APPELLANTS' MOTION TO INTERVENE WAS FILED APRIL 7.  APPELLANTS
ASSERTED THAT IF NEW YORK WERE SUCCESSFUL IN THE PRESENT ACTION, THE
APPELLANTS WOULD BE DEPRIVED OF THE PROTECTIONS AFFORDED BY ^^ 4 AND 5;
THAT THEY "WOULD BE LEGALLY BOUND" THEREBY IN THEIR SIMULTANEOUSLY
FILED ^ 5 ACTION IN THE SOUTHERN DISTRICT OF NEW YORK; AND THAT THE
LATTER ACTION "WOULD NECESSARILY FAIL."  APP. 45A.  /12/  THE
APPELLANTS ALSO ALLEGED THAT THE ^ 5 SUIT ASSERTED THAT NEW YORK "HAS
GERRYMANDERED ASSEMBLY, SENATORIAL AND CONGRESSIONAL DISTRICTS IN
KINGS, BRONX AND NEW YROK COUNTIES SO THAT, ON PURPOSE AND IN EFFECT,
THE RIGHT TO VOTE WILL BE DENIED ON ACCOUNT OF RACE OR COLOR." 

[[HC361'(ORIGINAL DOCUMENT PAGE 361)'  IBID.  THUS, IT WAS SAID, THE
DISPOSITION OF THE PRESENT SUIT MIGHT IMPAIR OR IMPEDE THE APPELLANTS'
ABILITY TO PROTECT THEIR INTERESTS IN REGISTERING TO VOTE, VOTING, AND
SEEKING PUBLIC OFFICE.  APP. 46A.  IT WAS FURTHER CLAIMED THAT DURING
THE PRECEDING THREE WEEKS ATTORNEYS IN THE DEPARTMENT OF JUSTICE THRICE
HAD REPRESENTED TO APPELLANTS' COUNSEL THAT THE UNITED STATES WOULD
OPPOSE NEW YORK'S MOTION FOR SUMMARY JUDGMENT.  /13/  "AT NO TIME DID
ANY OF THE THREE JUSTICE DEPARTMENT ATTORNEYS . . . INQUIRE OF COUNSEL
FOR (APPELLANTS) WHETHER HE OR ANY OF THE (APPELLANTS) HAD INFORMATION
OR EVIDENCE WHICH WOULD SUPPORT THE GOVERNMENT'S ALLEGED POSITION THAT
TO KINGS, BRONX AND NEW YORK COUNTIES."  IBID. 

THERE WAS ALSO FILED AN AFFIDAVIT OF ERIC SCHNAPPER, ONE OF THE
ATTORNEYS FOR THE APPELLANTS.  THIS REPEATED THE ALLEGATIONS CONTAINED
IN THE MOTION TO INTERVENE AND ALSO ASSERTED THAT ON MARCH 21 THE
AFFIANT ADVISED A DEPARTMENT OF JUSTICE ATTORNEY THAT WHEN THE NEW YORK
REDISTRICTING LAWS WERE SUBMITTED TO THE DEPARTMENT, HE WISHED TO
SUBMIT MATERIAL AND ARGUMENTS IN OPPOSITION TO THEIR APPROVAL; THAT ON
MARCH 23 HE WAS ADVISED BY ANOTHER DEPARTMENT ATTORNEY THAT PAPERS WERE
BEING PREPARED IN OPPOSITION TO NEW YORK'S MOTION FOR SUMMARY JUDGMENT;
THAT HE INFORMED THE ATTORNEY THAT THE APPELLANTS WERE CONSIDERING THE
INSTITUTION OF AN ACTION IN THE SOUTHERN DISTRICT OF NEW YORK; THAT ON
APRIL 3 HE WAS ADVISED BY THE DEPARTMENT OF JUSTICE THAT IT WOULD HAVE
NO OBJECTION TO THE INSTITUTION OF THE NEW YORK SUIT; AND THAT IN THE
AFTERNOON OF APRIL 5 HE WAS INFORMED BY TELEPHONE FOR THE FIRST TIME
THAT TWO DAYS EARLIER THE UNITED STATES HAD CONSENTED TO NEW YORK'S
MOTION FOR SUMMARY JUDGMENT.  APP. 48A - 51A. 

HC362'(ORIGINAL DOCUMENT PAGE 362)' 

WITH THE MOTION TO INTERVENE THE APPELLANTS FILED A PROPOSED ANSWER
TO APPELLEE'S AMENDED COMPLAINT AND A BRIEF MEMORANDUM OF POINTS AND
AUTHORITIES.  THE LATTER SUGGESTED THE FAILURE OF THE ATTORNEY GENERAL
"TO INVESTIGATE THE RELEVANT FACTS," NAMELY, "WHETHER THERE ARE
DIFFERENCES IN THE LITERACY RATES OF WHITES AND NON-WHITES,
PARTICULARLY IF THEY ARE DUE TO UNEQUAL OR DISCRIMINATORY PUBLIC
EDUCATION.  GASTON COUNTY V. UNITED STATES, 395 U.S. 285 (1969)."  THIS
SUGGESTION WAS ALSO MADE IN THE PROPOSED ANSWER.  APP. 65A - 66A. 

THE UNITED STATES TOOK NO POSITION WITH RESPECT TO THE APPELLANTS'
MOTION TO INTERVENE.  NEW YORK OPPOSED THE MOTION ON SIX GROUNDS.  THE
FIRST WAS UNTIMELINESS IN THAT THE SUIT HAD BEEN PENDING FOR MORE THAN
FOUR MONTHS, AN ARTICLE ABOUT IT HAD APPEARED IN EARLY FEBRUARY IN THE
NEW YORK TIMES, AND THE APPELLANTS DID NOT DENY THAT THEY HAD KNOWLEDGE
OF THE PENDENCY OF THE ACTION.  THE SECOND WAS FAILURE TO ALLEGE
APPROPRIATE SUPPORTING FACTS.  THE THIRD WAS THE LACK OF A REQUISITE
INTEREST IN THAT NONE OF THE APPELLANTS ASSERTED HE WAS A VICTIM OF
DISCRIMINATORY APPLICATION OF THE LITERACY TEST; RATHER, THE MOTION TO
INTERVENE WAS SUBORDINATE TO THE APPELLANTS' REAL INTEREST IN
INVALIDATING NEW YORK'S REAPPORTIONMENT OF ITS ASSEMBLY, SENATE, AND
CONGRESSIONAL DISTRICTS, AS EVIDENCED BY THE INSTITUTION OF THEIR
ACTION IN THE SOUTHERN DISTRICT OF NEW YORK.  THE FOURTH WAS ADEQUATE
REPRESENTATION OF THE APPELLANTS' INTEREST BY THE UNITED STATES. 

[[HC363'(ORIGINAL DOCUMENT PAGE 363)'  THE FIFTH WAS THAT DELAY IN
THE GRANTING OF THE MOTION FOR SUMMARY JUDGMENT WOULD PREJUDICE NEW
YORK AND JEOPARDIZE THE IMPENDING PRIMARY ELECTIONS FOR OFFICES OF
ASSEMBLY, SENATE, AND CONGRESS, AS WELL AS FOR DELEGATES TO THE
UPCOMING DEMOCRATIC NATIONAL CONVENTION.  THE SIXTH WAS THAT THE
APPEALLANTS AND OTHERS WHO CLAIMED DISCRIMINATION STILL COULD RAISE
THOSE ISSUES IN THE STATE AND FEDERAL COURTS OF NEW YORK.  PLAINTIFF'S
MEMORANDUM OF LAW IN OPPOSITION TO THE MOTION TO INTERVENE 1 - 8.  LIKE
REASONS WERE ASSERTED IN A SUPPORTING AFFIDAVIT OF AN ASSISTANT NEW
YORK ATTORNEY GENERAL.  APP. 67A - 70A. 

ON APRIL 13, THE THREE-JUDGE COURT ENTERED ITS ORDER DENYING THE
APPELLANTS' MOTION TO INTERVENE AND GRANTING SUMMARY JUDGMENT FOR NEW
YORK.  APP. 71A - 72A. 

ON APRIL 24 THE APPELLANTS FILED A MOTION TO ALTER JUDGMENT ON THE
GROUND, AMONG OTHERS, THAT THEIR MOTION TO INTERVENE WAS TIMELY SINCE
NEITHER THE APPELLANTS NOR THEIR COUNSEL KNEW OF THE ^ 4 (A) ACTION
UNTIL MARCH 21.  /14/  THE APPELLANTS NOW ASSERTED THAT EVIDENCE WAS
AVAILABLE TO DEMONSTRATE THAT IN THE THREE COUNTIES EDUCATION AFFORDED
NONWHITE CHILDREN BY NEW YORK WAS SUBSTANTIALLY INFERIOR TO THAT
AFFORDED WHITE CHILDREN AND THAT "THIS DIFFERENCE RESULTED IN
DISPARITIES IN WHITE AND NON-WHITE ILLITERACY RATES AMONG PERSONS
OTHERWISE ELIGIBLE TO VOTE IN THOSE COUNTIES DURING THE 10 YEARS PRIOR
TO THE FILING OF THE INSTANT ACTION." 

[[HC364'(ORIGINAL DOCUMENT PAGE 364)'  APP. 73A - 74A.  THUS "A FULL
EVIDENTIARY HEARING IS REQUIRED BEFORE MAKING ANY FINDING OF FACT AS TO
WHETHER PLAINTIFF'S LITERACY TESTS DISCRIMINATED ON THE BASIS OF
RACE."  FINALLY, THE APPELLANTS ASSERTED THAT THE DISTRICT COURT
"SHOULD NOT HAVE APPROVED THE CONSENT JUDGMENT DESIRED BY PLAINTIFF AND
DEFENDANT WITHOUT FIRST SOLICITING THE INTERVENTION OR RESPONSIBLE
INTERESTED PARTIES AND REQUIRING THE UNITED STATES TO UNDERTAKE A MORE
THOROUGH INVESTIGATION OF THE RELEVANT FACTS."  IBID. 

THE DISTRICT COURT PROMPTLY DENIED THE MOTION TO ALTER JUDGMENT. 
APP. 117A. 

SUBSEQUENTLY, WHILE THE APPEAL WAS PENDING IN THIS COURT, TWO
ADDITIONAL FACTS CAME TO LIGHT AND ARE AUTHORIZED BY THE PARTIES FOR
OUR CONSIDERATION.  THE FIRST IS THAT MR. SCHNAPPER, WHO EXECUTED THE
ABOVE DESCRIBED AFFIDAVITS, DID NOT BEGIN HIS EMPLOYEMENT AS AN
ATTORNEY WITH THE NAACP LEGAL DEFENSE AND EDUCATION FUND, INC., UNTIL
MARCH 9, 1972.  THE SECOND IS THAT "JUSTICE DEPARTMENT ATTORNEYS MET
WITH APPELLANTS STEWART AND FORTUNE IN JANUARY 1972 DURING THE COURSE
OF THEIR INVESTIGATION; ALTHOUGH THE JUSTICE DEPARTMENT ATTORNEYS
RECALL INFORMING STEWART AND FORTUNE THAT THIS CASE WAS PENDING,
NEITHER STEWART NOR FORTUNE CAN REMEMBER BEING SO INFORMED."  REPLY
BRIEF FOR APPELLANTS 3 N. 1; BRIEF FOR UNITED STATES 36. 

        IV     THE FOREGOING DETAILED RECITAL OF THE FACTS AND OF
THE HISTORY OF THE CASE IS NECESSARY BECAUSE OF THE DISCRETIONARY
NATURE OF THE DISTRICT COURT'S ORDER WE ARE CALLED UPON TO REVIEW.  OUR
TASK IS TO DETERMINE WHETHER, UPON THE FACTS AVAILABLE TO IT AT THAT
TIME, THE COURT ERRED IN DENYING THE APPELLANTS' MOTION TO INTERVENE. 

[[HC365'(ORIGINAL DOCUMENT PAGE 365)' 

INTERVENTION IN A FEDERAL COURT SUIT IS GOVERNED BY FED. RULE CIV.
PROC. 24.  /15/  WHETHER INTERVENTION BE CLAIMED OF RIGHT OR AS
PERMISSIVE, IT IS AT ONCE APPARENT, FROM THE INITIAL WORDS OF BOTH RULE
24 (A) AND RULE 24 (B), THAT THE APPLICATION MUST BE "TIMELY."  IF IT
IS UNTIMELY, INTERVENTION MUST BE DENIED.  THUS, THE COURT WHERE THE
ACTION IS PENDING MUST FIRST BE SATISFIED AS TO TIMELINESS.  /16/
ALTHOUGH THE POINT TO WHICH THE SUIT HAS PROGRESSED IS ONE FACTOR IN
THE DETERMINATION OF TIMELINESS, IT IS NOT SOLELY DISPOSITIVE. 

[[HC366'(ORIGINAL DOCUMENT PAGE 366)'  TIMELINESS IS TO BE
DETERMINED FROM ALL THE CIRCUMSTANCES.  /17/  AND IT IS TO BE
DETERMINED BY THE COURT IN THE EXERCISE OF ITS SOUND DISCRETION; UNLESS
THAT DISCRETION IS ABUSED, THE COURT'S RULING WILL NOT BE DISTURBED ON
REVIEW.  /18/ 

WITH THESE ACCEPTED PRINCIPLES IN MIND, WE READILY CONCLUDE THAT THE
DISTRICT COURT'S DENIAL OF THE APPELLANTS' MOTION TO INTERVENE WAS
PROPER BECAUSE OF THE MOTION'S UNTIMELINESS, AND THAT THE DENIAL WAS
NOT AN ABUSE OF THE COURT'S DISCRETION: 

1.  THE COURT COULD REASONABLY HAVE CONCLUDED THAT APPELLANTS KNEW
OR SHOULD HAVE KNOWN OF THE PENDENCY OF THE ^ 4 (A) ACTION BECAUSE OF
AN INFORMATIVE FEBRUARY ARTICLE IN THE NEW YORK TIMES DISCUSSING THE
CONTROVERSIAL ASPECT OF THE SUIT; /19/  PUBLIC COMMENT BY COMMUNITY
LEADERS; THE SIZE AND ASTUTENESS OF THE MEMBERSHIP AND STAFF OF THE
ORGANIZATIONAL APPELLANT; AND THE QUESTIONING OF TWO OF THE INDIVIDUAL
APPELLANTS THEMSELVES BY DEPARTMENT OF JUSTICE ATTORNEYS INVESTIGATING
THE USE OF LITERACY TESTS IN NEW YORK. 

[[HC367'(ORIGINAL DOCUMENT PAGE 367)' 

2.  WE, HOWEVER, NEED NOT CONFINE OUR EVALUATION OF ABUSE OF
DESCRETION TO THE FACTS JUST MENTIONED, FOR THE RECORD AMPLY
DEMONSTRATES THAT APPELLANTS FAILED TO PROTECT THEIR INTEREST IN A
TIMELY FASHION AFTER MARCH 21, 1972, THE DATE THEY ALLEGEDLY WERE FIRST
INFORMED OF THE PENDENCY OF THE ACTION.  AT THAT POINT, THE SUIT WAS
OVER THREE MONTHS OLD AND HAD REACHED A CRITICAL STAGE.  THE UNITED
STATES HAD ANSWERED NEW YORK'S COMPLAINT ON MARCH 10 AND IN THAT ANSWER
HAD CLEARLY INDICATED THAT IT WAS WITHOUT KNOWLEDGE OR INFORMATION
SUFFICIENT TO FORM A BELIEF AS TO THE TRUTH OF NEW YORK'S ALLEGATION
THAT THE STATE'S LITERACY TESTS WERE ADMINISTERED WITHOUT REGARD TO
RACE OR COLOR.  APP. 13A.  NEW YORK, IN RELIANCE UPON THIS ANSWER, THEN
FILED ITS MOTION FOR SUMMARY JUDGMENT.  THE ONLY STEP REMAINING WAS FOR
THE UNITED STATES EITHER TO OPPOSE OR TO CONSENT TO THE ENTRY OF
SUMMARY JUDGMENT.  THIS WAS THE STATUS OF THE SUIT AT THE TIME THE
APPELLANTS CONCEDE THEY WERE AWARE OF ITS EXISTENCE.  IT WAS OBVIOUS
THAT THERE WAS A STRONG LIKELIHOOD THAT THE UNITED STATES WOULD CONSENT
TO THE ENTRY OF JUDGMENT SINCE ITS ANSWER REVEALED THAT IT WAS WITHOUT
INFORMATION WITH WHICH IT COULD OPPOSE THE MOTION FOR SUMMARY
JUDGMENT.  THUS, IT WAS INCUMBENT UPON THE APPELLANTS, AT THAT STAGE OF
THE PROCEEDINGS, TO TAKE IMMEDIATE AFFIRMATIVE STEPS TO PROTECT THEIR
INTERESTS EITHER BY SUPPLYING THE DEPARTMENT OF JUSTICE WITH ANY
INFORMATION THEY POSSESSED CONCERNING THE EMPLOYMENT OF LITERACY TESTS
IN A WAY DESIGNED TO DENY NEW YORK CITIZENS OF THE RIGHT TO VOTE ON
ACCOUNT OF RACE OR COLOR, OR BY PRESENTING THAT INFORMATION TO THE
DISTRICT COURT ITSELF BY WAY OF AN IMMEDIATE MOTION TO INTERVENE.  /20/
APPELLANTS FAILED TO TAKE EITHER OF THESE AFFIRMATIVE STEPS. 

[[HC368'(ORIGINAL DOCUMENT PAGE 368)'  THEY CHOSE, RATHER, TO RELY
ON REPRESENTATIONS SAID TO HAVE BEEN MADE BY DEPARTMENT OF JUSTICE
ATTORNEYS DURING THE COURSE OF TELEPHONE CONVERSATIONS.  THE CONTENT OF
THE REPRESENTATIONS ALLEGEDLY MADE BY THE ATTORNEYS IS A MATTER OF
DISPUTE.  BRIEF FOR UNITED STATES 46 - 47.  INDEED, IT APPEARS FROM THE
AFFIDAVIT FILED BY APPELLANTS'  COUNSEL IN SUPPORT OF THE MOTION TO
ALTER JUDGMENT THAT APPELLANTS WERE NOT PREPARING, PRIOR TO THE "NIGHT
OF APRIL 6 - 7," TO FILE A MOTION TO INTERVENE OR EVEN TO FILE THEIR
NEW YORK FEDERAL ACTION SEEKING TO ENJOIN THE 1972 ELECTIONS.  SEE N.
14, SUPRA. 

3.  IT IS ALSO APPARENT THAT THERE WERE NO UNUSUAL CIRCUMSTANCES
WARRANTING INTERVENTION SINCE (A) NO APPELLANT ALLEGED AN INJURY,
PERSONAL TO HIM, RESULTING FROM THE DISCRIMINATORY USE OF A LITERACY
TEST, (B) APPELLANTS' CLAIM OF INADEQUATE REPRESENTATION BY THE UNITED
STATES WAS UNSUBSTANTIATED, (C) APPELLANTS WOULD NOT BE FORECLOSED FROM
CHALLENGING CONGRESSIONAL AND STATE LEGISLATIVE REDISTRICTING PLANS ON
THE GROUNDS THAT THEY WERE THE PRODUCT OF IMPROPER RACIAL
GERRYMANDERING, CF. GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960), AND
WRIGHT V. ROCKEFELLER, 376 U.S. 52 (1964), (D) APPELLANTS WERE FREE TO
REVEW THEIR MOTION TO INTERVENE FOLLOWING THE ENTRY OF SUMMARY JUDGMENT
SINCE THE DISTRICT COURT WAS REQUIRED, UNDER ^ 4 (A) OF THE ACT, 42
U.S.C. ^ 1973B (A), TO RETAIN JURISDICTION FOR FIVE YEARS AFTER
JUDGMENT, AND (E) IN ANY EVENT, NO CITIZEN OF NEW YORK COULD BE DENIED
THE RIGHT TO VOTE IN THE NEAR FUTURE SINCE ALL LITERACY TESTS HAVE BEEN
SUSPENDED UNTIL AUGUST 6, 1975.  42 U.S.C. SEC. 1973AA. 

[[HC369'(ORIGINAL DOCUMENT PAGE 369)' 

4.  FINALLY, IN VIEW OF THE THEN RAPIDLY APPROACHING PRIMARY
ELECTIONS IN NEW YORK AND OF THE FINAL DATE FOR FILING NOMINATING
PETITIONS TO PARTICIPATE IN THOSE ELECTIONS, THE GRANTING OF A MOTION
TO INTERVENE POSSESSED THE POTENTIAL FOR SERIOUSLY DISRUPTING THE
STATE'S ELECTORAL PROCESS WITH THE RESULT THAT PRIMARY AND GENERAL
ELECTIONS WOULD THEN HAVE BEEN BASED ON POPULATION FIGURES FROM THE
1960 CENSUS AND MORE THAN 10 YEARS OLD. 

WE THEREFORE CONCLUDE THAT THE MOTION TO INTERVENE WAS UNTIMELY AND
THAT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE
APPELLANTS' MOTION.  SEE APACHE COUNTY V. UNITED STATES, 256 F.SUPP. 
903 (DC 1966); UNITED STATES V. PARAMOUNT PICTURES, INC., 333 F.SUPP. 
1100 (SDNY), AFF'D SUB NOM.  SYUFY ENTERPRISES V. UNITED STATES, 404
U.S. 802 (1971).  THIS MAKES IT UNNECESSARY FOR US TO CONSIDER WHETHER
OTHER CONDITIONS FOR INTERVENTION UNDER RULE 24 WERE SATISFIED. 

              AFFIRMED. 

/1/  "TO ASSURE THAT THE RIGHT OF CITIZENS OF THE UNITED STATES TO
VOTE IS NOT DENIED OR ABRIDGED ON ACCOUNT OF RACE OR COLOR, NO CITIZEN
SHALL BE DENIED THE RIGHT TO VOTE IN ANY FEDERAL, STATE, OR LOCAL
ELECTION BECAUSE OF HIS FAILURE TO COMPLY WITH ANY TEST OR DEVICE IN
ANY STATE WITH RESPECT TO WHICH THE DETERMINATIONS HAVE BEEN MADE UNDER
SUBSECTION (B) OF THIS SECTION OR IN ANY POLITICAL SUBDIVISION WITH
RESPECT TO WHICH SUCH DETERMINATIONS HAVE BEEN MADE AS A SEPARATE UNIT,
UNLESS THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IS
AN ACTION FOR A DECLARATORY JUDGMENT BROUGHT BY SUCH STATE OR
SUBDIVISION AGAINST THE UNITED STATES HAS DETERMINED THAT NO SUCH TEST
OR DEVICE HAS BEEN USED DURING THE TEN YEARS PRECEDING THE FILING OF
THE ACTION FOR THE PURPOSE OR WITH THE EFFECT OF DENYING OR ABRIDGING
THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR . . . . 

"AN ACTION PURSUANT TO THIS SUBSECTION SHALL BE HEARD AND DETERMINED
BY A COURT OF THREE JUDGES IN ACCORDANCE WITH THE PROVISIONS OF SECTION
2284 OF TITLE 28 AND ANY APPEAL SHALL LIE TO THE SUPREME COURT.  THE
COURT SHALL RETAIN JURISDICTION OF ANY ACTION PURSUANT TO THIS
SUBSECTION FOR FIVE YEARS AFTER JUDGMENT AND SHALL REOPEN THE ACTION
UPON MOTION OF THE ATTORNEY GENERAL ALLEGING THAT A TEST OR DEVICE HAS
BEEN USED FOR THE PURPOSE OR WITH THE EFFECT OF DENYING OR ABRIDGING
THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR. 

"IF THE ATTORNEY GENERAL DETERMINES THAT HE HAS NO REASON TO BELIEVE
THAT ANY SUCH TEST OR DEVICE HAS BEEN USED DURING THE TEN YEARS
PRECEDING THE FILING OF THE ACTION FOR THE PURPOSE OR WITH THE EFFECT
OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR,
HE SHALL CONSENT TO THE ENTRY OF SUCH JUDGMENT." 

/2/  THE APPELLANTS DESCRIBE THEMSELVES, IN THEIR MOTION TO
INTERVENE, AS THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE, NEW YORK CITY REGION OF NEW YORK STATE CONFERENCE OF BRANCHES;
FOUR DULY QUALIFIED BLACK VOTERS IN KINGS COUNTY, NEW YORK; AND ONE
DULY QUALIFIED PUERTO RICAN VOTER IN THAT COUNTY.  TWO OF THE
INDIVIDUAL APPEALLANTS ARE ALSO MEMBERS OF THE NEW YORK STATE ASSEMBLY
AND ANOTHER IS A MEMBER OF THE NEW YORK STATE SENATE.  APP. 44A. 

/3/  THE MOTION, APP. 44A - 47A, DOES NOT DIFFERENTIATE BETWEEN
INTERVENTION OF RIGHT AND PERMISSIVE INTERVENTION, UNDER SUBDIVISIONS
(A) AND (B), RESPECTIVELY, OF FED. RULE CIV. PROC. 24.  NEITHER DOES IT
STATE THAT ONE, RATHER THAN THE OTHER IS CLAIMED.  AT ORAL ARGUMENT,
COUNSEL SAID THAT IN THE DISTRICT COURT THE APPELLANTS SOUGHT
INTERVENTION AS OF RIGHT.  TR. OF ORAL ARG. 8.  IN THIS COURT
APPELLANTS SUGGEST THAT THEY WERE ALSO ENTITLED TO PERMISSIVE
INTERVENTION.  TR. OF ORAL ARG. 9; BRIEF FOR APPELLANTS 26 N. 39.  IN
VIEW OF OUR RULING ON THE ISSUE OF TIMELINESS, WE MAKE NO POINT OF THE
DISTINCTION BETWEEN THE TWO TYPES OF INTERVENTION. 

/4/  "NO VOTING QUALIFICATION OR PREREQUISITE TO VOTING, OR
STANDARD, PRACTICE, OR PROCEDURE SHALL BE IMPOSED OR APPLIED BY ANY
STATE OR POLITICAL SUBDIVISION TO DENY OR ABRIDGE THE RIGHT OF ANY
CITIZEN OF THE UNITED STATES TO VOTE ON ACCOUNT OF RACE OR COLOR." 

/5/  IN GEORGIA V. UNITED STATES, 411 U.S. 526 (1973), THE COURT
HELD THAT A STATE'S REAPPORTIONMENT PLAN, WHICH HAS THE POTENTIAL FOR
DILUTING NEGRO VOTING POWER, IS A "STANDARD, PRACTICE, OR PROCEDURE
WITH RESPECT TO VOTING," WITHIN THE MEANING OF ^ 5 OF THE ACT.  SEE
ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544 (1969). 

/6/  BUT SEE HEARINGS ON H. R. 6400 BEFORE SUBCOMMITTEE NO. 5 OF THE
HOUSE COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., SER.  2, PP.
90 - 91 (1965). 

/7/  "IN EVERY CIVIL ACTION BROUGHT IN ANY DISTRICT COURT OF THE
UNITED STATES UNDER ANY OF SAID ACTS, WHEREIN THE UNITED STATES IS
COMPLAINANT, AN APPEAL FROM THE FINAL JUDGMENT OF THE DISTRICT COURT
WILL LIE ONLY TO THE SUPREME COURT." 

/8/  "EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO
THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION,
SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

/9/  ALTHOUGH THE DIRECTOR OF THE BUREAU OF THE CENSUS DETERMINED,
ON MARCH 15, 1971, THAT LESS THAN 50% OF THE PERSONS OF VOTING AGE
RESIDING IN THE THREE NAMED NEW YORK COUNTIES VOTED IN THE PRESIDENTIAL
ELECTION OF NOVEMBER 1968, IT WAS STATED ON BEHALF OF THE APPELLEES IN
ORAL ARGUMENT THAT A COMPLETE SET OF CENSUS STATISTICS WAS NOT
AVAILABLE TO THE STATE OF NEW YORK UNTIL OCTOBER 15, 1971.  TR. OF ORAL
ARG. 41.  THE APPELLANTS, HOWEVER, IN THE COMPLAINT FILED BY THEM IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
IN THEIR ^ 5 SUIT AGAINST THE NEW YORK CITY BOARD OF ELECTIONS AND
OTHERS, NO. 72 CIV. 1460, ALLEGED THAT CENSUS INFORMATION ON WHICH
REAPPORTIONMENT WAS BASED WAS MADE AVAILABLE TO THE STATE NO LATER THAN
SEPTEMBER 1, 1971.  APP. 59A.  WE DO NOT KNOW WHICH OF THESE DATES IS
CORRECT.  IT IS CLEAR, IN ANY EVENT, THAT CENSUS DATA FOR THE REDRAWING
OF CONGRESSIONAL AND LEGISLATIVE DISTRICT LINES WAS NOT AVAILABLE TO
NEW YORK UNTIL THE FALL OF 1971. 

/10/  NEW YORK CLIAMS THAT THE PRIMARY REASON FOR FILING ITS ^ 4 (A)
SUIT WAS TO INSURE THAT THE IMMINENT 1972 ELECTIONS WOULD BE HELD ON
THE BASIS OF DISTRICT LINES DRAWN ACCORDING TO POPULATION FIGURES FROM
THE 1970 CENSUS.  IT IS SAID THAT THE LATENESS IN OBTAINING THE
FIGURES, SEE N. 9, SUPRA, AND THE CONCOMITANT IMPOSSIBILITY OF
REDRAWING LINES BEFORE EARLY 1972 MADE IT HIGHLY UNLIKELY THAT THE
STATE WOULD BE ABLE TO OBTAIN FROM THE ATTORNEY GENERAL OF THE UNITED
STATES ANY ^ 5 CLEARANCE FOR THE REDISTRICTING LEGISLATION PRIOR TO
APRIL 4, THE FIRST DAY OF CIRCULATING NOMINATING PETITIONS FOR THE JUNE
20 PRIMARY.  THUS, BY OBTAINING A FAVORABLE RESULT IN A ^ 4 (A) SUIT,
NEW YORK COULD BYPASS THE SUBMISSION OF ITS REDISTRICTING PLAN TO THE
ATTORNEY GENERAL.  TR. OF ORAL ARG. 41 - 42. 

/11/  THE NEW YORK ELECTION LAW, ^ 168, AS AMENDED, PROVIDES THAT "A
NEW VOTER MAY PRESENT AS EVIDENCE OF LITERACY" A CERTIFICATE THAT HE
HAS COMPLETED THE SIXTH GRADE OF AN APPROVED ELEMENTARY SCHOOL OR OF A
SCHOOL "ACCREDITED BY THE COMMONWEALTH OF PUERTO RICO IN WHICH SCHOOL
INSTRUCTION IS CARRIED ON PREDOMINATELY IN THE ENGLISH LANGUAGE."  ON
JULY 28, 1966, THE STATE'S ATTORNEY GENERAL ISSUED AN OPINION TO THE
EFFECT THAT NEW YORK MAY NOT REQUIRE LITERACY IN ENGLISH FROM PERSONS
EDUCATED IN PUERTO RICO.  OP. ATTY. GEN. N. Y., 1966, PP. 121, 123. 

/12/  WHILE THE PRESENT CASE WAS PENDING IN THE DISTRICT COURT, THE
NEW YORK LEGISLATURE ON JANURAY 14, 1972, COMPLETED ITS WORK OF
REDRAWING ASSEMBLY AND SENATE DISTRICT LINES AND ENACTED LEGISLATION
ALTERING THOSE BOUNDARIES.  N. Y. LAWS 1972, C. 11.  ON JANUARY 24, THE
STATE'S ATTORNEY GENERAL SUBMITTED THE REDISTRICTING PLAN TO THE
ATTORNEY GENERAL OF THE UNITED STATES PURSUANT TO ^ 5 OF THE 1965 ACT,
AS AMENDED, 42 U.S.C. ^ 1973C.  ON MARCH 14, THREE DAYS BEFORE NEW
YORK'S MOTION FOR SUMMARY JUDGMENT WAS FILED, THE UNITED STATES
ATTORNEY GENERAL REJECTED NEW YORK'S SUBMISSION ON THE GROUND THAT IT
WAS LACKING IN INFORMATION REQUIRED BY THE APPLICABLE REGULATIONS SET
FORTH AT 36 FED. REG. 18186 - 18190 (1971).  ON MARCH 28 THE NEW YORK
LEGISLATURE ENACTED LEGISLATION REDEFINING THE BOUNDARIES OF THE
STATE'S CONGRESSIONAL DISTRICTS.  N. Y. LAWS 1972, C. 76.  THE
CONGRESSIONAL CHANGES WERE NOT SUBMITTED FOR APPROVAL UNDER ^ 5. 
/13/  THE UNITED STATES TAKES THE POSITION "THAT THE STATEMENTS OF
APPELLANTS' COUNSEL ARE NOT AN ACCURATE REPRESENTATION OF THE
CONVERSATIONS BETWEEN HIM AND THESE GOVERNMENT ATTORNEYS."  BRIEF FOR
UNITED STATES 47. 

/14/  MR. SCHNAPPER FILED A FURTHER AFFIDAVIT ON APRIL 24, 1972.  IN
IT HE STATED (1) THAT PRIOR TO MARCH 21, 1972, HE HAD NO KNOWLEDGE
WHATEVER OF THE COMMENCEMENT, PENDENCY, OR EXISTENCE OF THE ^ 4 (A)
ACTION; (2) THAT THROUGHOUT DECEMBER 1971 AND JANUARY AND FEBRUARY 1972
HE WAS IN NEW HAMPSHIRE AND THE DAILY PAPER HE REGULARLY READ THERE DID
NOT CARRY ANY STORY ABOUT THE PRESENT SUIT; (3) THAT TO THE BEST OF HIS
KNOWLEDGE NEITHER CO-COUNSEL NOR ANY OF THE APPELLANTS KNEW OF THE SUIT
PRIOR TO MARCH 21; (4) THAT HE DID NOT RECEIVE NEW YORK'S MEMORANDUM IN
OPPOSITION TO THE MOTION TO INTERVENE UNTIL APRIL 13, AFTER THE
DISTRICT COURT ALREADY HAD RULED ON THE MOTION; (5) THAT HE DID NOT
LEARN OF THE CONSENT BY THE UNITED STATES TO THE ENTRY OF JUDGMENT
UNTIL APRIL 5; AND (6) THAT THE MOTION TO INTERVENE, AS WELL AS THE
PAPERS IN THE ^5 ACTION IN THE SOUTHERN DISTRICT OF NEW YORK, WAS
DRAFTED "THROUGHOUT THE NIGHT OF PARIL 6 - 7."  APP. 91A - 92A. 

/15/    "RULE 24.  -- INTERVENTION 

"(A) INTERVENTION OF RIGHT. 

"UPON TIMELY APPLICATION ANYONE SHALL BE PERMITTED TO INTERVENE IN
AN ACTION: (1) WHEN A STATUTE OF THE UNITED STATES CONFERS AN
UNCONDITIONAL RIGHT TO INTERVENE; OR (2) WHEN THE APPLICANT CLAIMS AN
INTEREST RELATING TO THE PROPERTY OR TRANSACTION WHICH IS THE SUBJECT
OF THE ACTION AND HE IS SO SITUATED THAT THE DISPOSITION OF THE ACTION
MAY AS A PRACTICAL MATTER IMPAIR OR IMPEDE HIS ABILITY TO PROTECT THAT
INTEREST, UNLESS THE APPLICANT'S INTEREST IS ADEQUATELY REPRESENTED BY
EXISTING PARTIES. 

"(B) PERMISSIVE INTERVENTION. 

"UPON TIMELY APPLICATION ANYONE MAY BE PERMITTED TO INTERVENE IN AN
ACTION: (1) WHEN A STATUTE OF THE UNITED STATES CONFERS A CONDITIONAL
RIGHT TO INTERVENE; OR (2) WHEN AN APPLICANT'S CLAIM OR DEFENSE AND THE
MAIN ACTION HAVE A QUESTION OF LAW OR FACT IN COMMON.  WHEN A PARTY TO
AN ACTION RELIES FOR GROUND OF CLIAM OR DEFENSE UPON ANY STATUTE OR
EXECUTIVE ORDER ADMINISTERED BY A FEDERAL OR STATE GOVERNMENTAL OFFICER
OR AGENCY OR UPON ANY REGULATION, ORDER, REQUIREMENT, OR AGREEMENT
ISSUED OR MADE PURSUANT TO THE STATUTE OR EXECUTIVE ORDER, THE OFFICER
OR AGENCY UPON TIMELY APPLICATION MAY BE PERMITTED TO INTERVENE IN THE
ACTION.  IN EXERCISING ITS DISCRETION THE COURT SHALL CONSIDER WHETHER
THE INTERVENTION WILL UNDULY DELAY OR PREJUDICE THE ADJUDICATION OF THE
RIGHTS OF THE ORIGINAL PARTIES." 

/16/  IOWA STATE UNIVERSITY RESEARCH FOUNDATION V. HONEYWELL, INC.,
459 F.2D 447, 449 (CA8 1972); SMITH PETROLEUM SERVICE, INC. V. MONSANTO
CHEMICAL CO., 420 F.2D 1103, 1115 (CA5 1970); LUMBERMENS MUTUAL
CASUALTY CO. V. RHODES, 403 F.2D 2, 5 (CA10), CERT. DENIED, 394 U.S.
965 (1969); KOZAK V. WELLS, 278 F.2D 104, 108 - 109 (CA8 1960); 7A C.
WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE ^ 1916 (1972); 3B J.
MOORE, FEDERAL PRACTICE PARA. 24.13 (1) (2D.  ED. 1969). 

/17/  IOWA STATE UNIVERSITY RESEARCH FOUNDATION V. HONEYWELL, INC.,
459 F.2D, AT 449; SMITH PETROLEUM SERVICE, INC. V. MONSANTO CHEMICAL
CO., 420 F.2D, AT 1115; KOZAK V. WELLS, 278 F.2D, AT 109. 

/18/  MCDONALD V. E. J. LAVINO CO., 430 F.2D 1065, 1071 (CA5 1970);
LUMBERMENS MUTUAL CASUALTY CO. V. RHODES, 403 F.2D, AT 5; 3B J. MOORE,
FEDERAL PRACTICE PARA. 24.13, P. 24 - 524. 

/19/  THE NEW YORK TIMES, FEB. 6, 1972, P. 48.  THIS WAS THE ONLY
NEWS ARTICLE ON THE PAGE.  ITS THREE-COLUMN HEADLINE READ, "LEFKOWITZ
ACTS TO BAR VOTING WATCH."  THE ARTICLE RECITED THAT NEW YORK'S
ATTORNEY GENERAL "HAD MOVED IN FEDERAL COURT IN WASHINGTON TO HAVE THE
STATE EXEMPTED FROM POTENTIAL FEDERAL SUPERVISION OVER REGISTRATION AND
VOTING" IN THE THREE COUNTIES.  IT MENTIONED AN ATTACK UPON THE SUIT BY
THE CHAIRMAN OF THE CITIZENS VOTER EDUCATION COMMITTEE, A CONGRESSMAN,
AND THE MANHATTAN AND BRONX BOROUGH PRESIDENTS, AND DESCRIBED THE
ATTORNEY GENERAL'S REPLY TO THAT ATTACK. 

/20/  SEE HEARINGS ON H. R. 6400 BEFORE SUBCOMMITTEE NO. 5 OF THE
HOUSE COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., SER.  2, PP.
91 - 93. 

APPELLANTS AT ORAL ARGUMENT ACKNOWLEDGED THAT THEY WERE NOT
PRECLUDED FROM SEEKING INTERVENTION PRIOR TO THE DATE ON WHICH THE
UNITED STATES FILED ITS CONSENT TO THE ENTRY OF SUMMARY JUDGMENT.  TR.
OF ORAL ARG. 18 - 19. 

[[DOP 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHEN TWO MIGHTY POLITICAL AGENCIES SUCH AS THE DEPARTMENT OF JUSTICE
IN WASHINGTON, D. C., AND THE ATTORNEY GENERAL OF NEW YORK IN ALBANY
AGREE THAT THERE IS NO RACIAL DISCRIMINATION IN VOTING IN THREE NEW
YORK COUNTIES ALTHOUGH THE HISTORIC RECORD /1/  SUGGESTS IT, IT IS TIME
TO TAKE A CAREFUL LOOK AND NOT LET THIS LITIGATION BE ENDED BY AN
AGREEMENT BETWEEN FRIENDLY POLITICAL ALLIES. 

[[HC370'(ORIGINAL DOCUMENT PAGE 370)' 

THE VOTING RIGHTS ACT AMENDMENTS OF 1970 WERE SPECIFICALLY AIMED AT
NEW YORK -- PARTICULARLY BRONX, KINGS, AND NEW YORK COUNTIES.  IT WAS
POINTED OUT IN THE DEBATES THAT UNDER THE EARLIER ACT THESE COUNTIES
WERE NOT INCLUDED, THAT WHILE IN THE 1964 ELECTION MORE THAN 50% OF THE
VOTERS WERE REGISTERED AND MORE THAN 50% VOTED, IN THE 1968 ELECTION
50% WERE NOT REGISTERED OR VOTING.  116 CONG. REC. 6654, 6659.  IT WAS
POINTED OUT THAT NEW YORK'S LITERACY REQUIREMENT WAS ENACTED WITH THE
VIEW OF DISCRIMINATING ON THE BASIS OF RACE.  ID., AT 6660.  NEW YORK
BLACKS WERE ILLITERATE BECAUSE THEIR EDUCATION, IF ANY, HAD BEEN IN
SECOND-CLASS SCHOOLS ELSEWHERE.  ID., AT 6661.  IT WAS EMPHASIZED THAT
WHEREVER THE BLACKS HAD BEEN EDUCATED IT WAS UNCONSTITUTIONAL TO
DISCRIMINATE AGAINST THEM ON THE BASIS OF RACE EVEN THOUGH ILLITERATE. 
ID., AT 5533.  THE USE OF LITERACY TESTS IN NEW YORK TENDED TO DETER
BLACKS FROM REGISTERING, IT WAS SAID.  IBID.  AND IT WAS POINTED OUT
THAT LITERACY TESTS HAD A GREATER IMPACT ON BLACKS AND OTHER MINORITIES
THAN ON ANY WHITE BECAUSE LITERACY WAS HIGHER AMONG WHITES.  ID., AT
5532 - 5549. 

IN THE FACE OF THIS HISTORY, THE UNITED STATES DID NOT CALL ONE
WITNESS NOR SUBMIT A SINGLE DOCUMENT OR MAKE EVEN A FEEBLE PROTEST TO
NEW YORK'S CLAIM THAT IT WAS LILY WHITE.  THE UNITED STATES HAS NO
DEFENSE TO OFFER.  THE DESULTORY WAY IN WHICH THE UNITED STATES ACTED
IS ILLUSTRATED BY THE FACT THAT ALTHOUGH THE ACT REQUIRES THE DISTRICT
COURT TO RETAIN JURISDICTION OF THE CAUSE FOR FIVE YEARS, 42 U.S.C. ^
1973B (A), THE UNITED STATES DID NOT EVEN MAKE THE REQUEST. 

[[HC371'(ORIGINAL DOCUMENT PAGE 371)'  IT CAPITULATED COMPLETELY. 
AND YET THE BLACKS, THE AMERICANS OF PUERTO RICAN ANCESTRY, AND OTHER
MINORITIES VICTIMINZED BY ILLITERACY TESTS CLAMOR IN THEIR WAY FOR
REPRESENTATION.  ONLY NAACP OFFERS IT IN THIS CASE.  THE INVESTIGATION
MADE BY THE DEPARTMENT OF JUSTICE HAS ALL THE EARMARKS OF A WHITEWASH. 

THE ATTORNEY GENERAL HAD TESTIFIED BEFORE CONGRESS:  /2/ 

"(IT IS CLEAR THAT NEGRO VOTING IN MOST DEEP SOUTH COUNTIES
SUBJECTED TO BOTH LITERACY TEST SUSPENSION AND ON-SCENE ENROLLMENT BY
FEDERAL REGISTRARS IS NOW HIGHER THAN NEGRO VOTE PARTICIPATION IN THE
GHETTOS OF THE TWO NORTHERN CITIES -- NEW YORK AND LOS ANGELES -- WHERE
LITERACY TESTS ARE STILL IN USE.  IN NON-LITERACY TEST NORTHERN
JURISDICTIONS LIKE CHICAGO, CLEVELAND AND PHILADELPHIA, NEGRO
REGISTRATION AND VOTING RATIOS ARE HIGHER THAN IN LOS ANGELES AND
(ESPECIALLY) NEW YORK . . ." 

YET, NONE OF THESE ASSERTIONS WERE GIVEN THE DISTRICT COURT NOR WAS
ANY ATTEMPT MADE TO DEVELOP EVIDENCE ALONG THESE LINES. 

THIS SUIT BY THE STATE OF NEW YORK TO GET AN EXEMPTION FOR THE THREE
COUNTIES STARTED ON DECEMBER 3, 1971.  ON MARCH 10, 1972, THE UNITED
STATES FILED ITS ANSWER AND ON MARCH 17, 1972, NEW YORK MOVED FOR
SUMMARY JUDGMENT.  ON MARCH 21, 1972, NAACP WAS ADVISED BY THE
DEPARTMENT OF JUSTICE THAT THE LATTER WOULD OPPOSE NEW YORK'S MOTION
FOR SUMMARY JUDGMENT.  OUT OF THE BLUE THE DEPARTMENT OF JUSTICE ON
APRIL 4, 1972, CONSENTED TO THE ENTRY OF A DECREE EXEMPTING THE THREE
NEW YORK COUNTIES FROM THE ACT. 

[[HC372'(ORIGINAL DOCUMENT PAGE 372)'  THE MOTION TO INTERVENE WAS
PROMPTLY FILED APRIL 7, 1972. 

THE ANSWER FILED BY NAACP ON APRIL 7, 1972, ALLEGES THAT THE
LITERACY TEST ADMINISTERED BY NEW YORK DETERRED MINORITIES FROM
REGISTERING, THAT IT WAS ADMINISTERED BY WHITES, THAT SOCIAL
GERRYMANDERING WAS SO WIDESPREAD AND SUCCESSFUL THAT MINORITIES WERE
DISCOURAGED FROM VOTING, THAT NEW YORK PRODUCED ILLITERATE BLACKS
THROUGH OPERATING INFERIOR BLACK SCHOOLS -- INFERIOR IN EDUCATIONAL
FACILITIES, INFERIOR IN TEACHERS, INFERIOR IN EXPENDITURES PER CAPITA. 

IT IS ASSUMED, OF COURSE, THAT THE UNITED STATES ADEQUATELY
REPRESENTS THE PUBLIC INTEREST IN CASES OF THIS SORT.  BUT ON THE FACE
OF THIS RECORD OF TRANSACTIONS THAT THE UNITED STATES HAS APPROVED OR
DOES NOT CONTEST, IT IS CLEAR THAT IT DOES NOT ADEQUATELY REPRESENT THE
PUBLIC INTEREST.  INTERVENTION AS OF RIGHT UNDER RULE 24 (A) (2) SHOULD
THEREFORE BE ALLOWED.  SEE CASCADE NATURAL GAS CORP. V. EL PASO NATURAL
GAS CO., 386 U.S. 129, 135 - 136. 

HERE IT IS PLAINLY EVIDENT THAT THE UNITED STATES IS AN EAGER AND
WILLING PARTNER WITH ITS ALLIES IN NEW YORK TO FORECLOSE INQUIRY INTO
BARRIERS TO MINORITY VOTING.  WHAT THE FACTS MAY PRODUCE, NO ONE
KNOWS.  ALL THAT IS REQUESTED IS A HEARING ON THE MERITS.  THE FRESH
AIR OF PUBLICITY THAT ONLY A FAIR AND FULL TRIAL IN COURT CAN PRODUCE
SHOULD BE ALLOWED TO VENTILATE A CASE THAT HAS ALL THE EARMARKS OF A
COZY ARRANGEMENT TO SUPPRESS THE FACTS -- EVIDENCE WHICH, IF PROVED,
WOULD BE ADEQUATE AS A BASES FOR RELIEF IN A CASE FROM THE SOUTH.  SEE
GASTON COUNTY V. UNITED STATES, 395 U.S. 285.  THIS EVIDENCE, IF PROVED
SHOULD BE EQUALLY ADEQUATE IN THE NORTH. 

[[DFN 

/1/  THE ATTORNEY GENERAL OF NEW YORK PROTESTS THIS STATEMENT.  BUT
THE 90-YEAR-LONG SEGREGATED SCHOOL SYSTEM OF LAST CENTURY IS NOT THE
POINT; THE REFERENCE IS TO THE OFFER OF PROOF MADE BY THE APPELLANTS. 
THE ATTORNEY GENERAL ALSO STATES THAT THE FEDERAL INVESTIGATION SHOWED
THAT THE INFERENCE HAS NO BASIS IN FACT.  HE ASSERTS MOREOVER THAT NEW
YORK'S LITERACY REQUIREMENT HAS NO RACIAL CAST IN PRACTICE.  BUT
APPELLANTS' OFFER OF PROOF IS DISTURBING TO SAY THE LEAST.  THE CASE
WAS DISPOSED OF ON A MOTION FOR SUMMARY JUDGMENT.  THE CASE IS IN MY
VIEW A CLASSIC EXAMPLE OF THE INAPPROPRIATENESS OF SUCH A PROCEDURE. 
AS I STATE IN MY DISSENT, A HEARING SHOULD HAVE BEEN HELD AND FINDINGS
OF FACT MADE. 

/2/  HEARINGS ON H. R. 4249, ETC., BEFORE SUBCOMMITTEE NO. 5 OF THE
HOUSE COMMITTEE ON THE JUDICIARY, 91ST CONG., 1ST SESS., SER.  3, P.
296 (1969). 

[[DOP 

MR. JUSTICE BRENNAN, DISSENTING. 

IN MY VIEW, THE DISTRICT COURT ERRED IN DENYING APPELLANTS'  MOTION
FOR LEAVE TO INTERVENE IN THIS SUIT UNDER ^ 4 (A) OF THE VOTING RIGHTS
ACT OF 1965, AS AMENDED, 42 U.S.C. ^ 1973B (A). 

[[HC373'(ORIGINAL DOCUMENT PAGE 373)'  THE CASE PLAINLY TURNS ON ITS
FACTS, AND ITS IMPACT ON THE DEVELOPMENT OF PRINCIPLES GOVERNING
INTERVENTION WILL DOUBTLESS BE SMALL.  BUT WHAT IS ULTIMATELY AT STAKE
IN THIS SUIT BY NEW YORK TO OBTAIN AN EXEMPTION UNDER THE VOTING RIGHTS
ACT IS THE APPLICABILITY OF THE PROTECTIONS OF THE ACT TO 2.2 MILLION
MINORITY GROUP MEMBERS RESIDING IN THREE NEW YORK COUNTIES.  ACCORDING
TO APPELLANTS, THE TOTAL NUMBER OF MINORITY GROUP MEMBERS AFFECTED BY
ALL PREVIOUS EXEMPTIONS COMBINED FOR LESS THAN 100,000. 

AT THE SAME TIME THAT THE DISTRICT COURT DENIED THE MOTION TO
INTERVENE, IT GRANTED THE STATE'S MOTION FOR SUMMARY JUDGMENT, THEREBY
EXEMPTING THESE THREE COUNTIES FROM THE COVERAGE OF THE ACT.  THE
UNITED STATES, DEFENDANT IN THE SUIT, CONSENTED TO THE ENTRY OF SUMMARY
JUDGMENT.  AS A RESULT, THE CONTENTION THAT APPELLANTS WERE PREPARED TO
URGE -- NAMELY, THAT THE GRANT OF AN EXEMPTION WOULD NULLIFY THE
SPECIFIC CONGRESSIONAL INTENT TO EXTEND THE PROTECTIONS OF THE ACT TO
THE CLASS REPRESENTED BY APPELLANTS -- WAS NEVER LAID BEFORE THE
COURT. 

IN UPHOLDING THE DENIAL OF LEAVE TO INTERVENE, THE COURT REASONS
THAT APPELLANTS' MOTION, FILED FOUR DAYS AFTER THE UNITED STATES
CONSENTED TO A GRANT OF SUMMARY JUDGMENT, WAS UNTIMELY.  IN THE COURT'S
VIEW, APPELLANTS SHOULD HAVE MADE THEIR MOTION DURING THE BRIEF PERIOD
BETWEEN THE FILING OF NEW YORK'S MOTION FOR SUMMARY JUDGMENT AND THE
ANNOUNCEMENT BY THE UNITED STATES THAT IT WOULD NOT CONTEST THAT
MOTION.  THE COURT STATES, WITH THE BENEFIT OF HINDSIGHT, THAT IT WAS 

"OBVIOUS THAT THERE WAS A STRONG LIKELIHOOD THAT THE UNITED STATES
WOULD CONSENT TO THE ENTRY OF JUDGMENT SINCE ITS ANSWER REVEALED THAT
IT WAS WITHOUT INFORMATION WITH WHICH IT COULD OPPOSE THE MOTION FOR
SUMMARY JUDGMENT.  THUS, IT WAS INCUMBENT UPON THE APPELLANTS, AT THAT
STAGE OF THE PROCEEDINGS, TO TAKE IMMEDIATE AFFIRMATIVE STEPS TO
PROTECT THEIR INTERESTS EITHER BY SUPPLYING THE DEPARTMENT OF JUSTICE
WITH ANY INFORMATION THEY POSSESSED CONCERNING THE EMPLOYMENT OF
LITERACY TESTS IN A WAY DESIGNED TO DENY NEW YORK CITIZENS OF THE RIGHT
TO VOTE ON ACCOUNT OF RACE OR COLOR, OR BY PRESENTING THAT INFORMATION
TO THE DISTRICT COURT ITSELF BY WAY OF AN IMMEDIATE MOTION TO
INTERVENE."  ANTE, AT 367. 

[HC374 

THE TIMELINESS OF A MOTION TO INTERVENE IS DETERMINED, NOT BY
REFERENCE TO THE DATE ON WHICH THE SUIT BEGAN OR THE DATE ON WHICH THE
WOULD-BE INTERVENOR LEARNED THAT IT WAS PENDING, BUT RATHER BY
REFERENCE TO THE DATE WHEN THE APPLICANT LEARNED THAT INTERVENTION WAS
NEEDED TO PROTECT ITS INTERESTS.  SEE DIAZ V. SOUTHERN DRILLING CORP.,
427 F.2D 1118, 1125 (CA5 1970); CF. CASCADE NATURAL GAS CORP. V. EL
PASO NATURAL GAS CO., 386 U.S. 129 (1967).  PRIOR TO THE ANNOUNCEMENT
THAT THE UNITED STATES WOULD NOT CONTEST THE MOTION FOR SUMMARY
JUDGEMENT, APPELLANTS COULD NOT HAVE KNOWN THAT INTERVENTION WAS NEEDED
TO PROTECT THEIR INTERESTS AND THE INTERESTS OF THE CLASS THEY
REPRESENT.  IN AN AFFIDAVIT FILED IN CONNECTION WITH THE MOTION TO
INTERVENE, APPELLANTS' ATTORNEY STATED THAT HE HAD BEEN ADVISED BY
THREE DIFFERENT JUSTICE DEPARTMENT ATTORNEYS THAT THE UNITED STATES
WOULD OPPOSE NEW YORK'S MOTION FOR SUMMARY JUDGMENT.  AFFIDAVIT OF ERIC
SCHNAPPER, APP. 48A - 51A.  THE COURT SUGGESTS THAT THE CONTENTS OF THE
REPRESENTATIONS MADE BY THESE ATTORNEYS IS "A MATTER OF DISPUTE." 
ANTE, AT 368.  THE MATTER WAS NOT IN DISPUTE, HOWEVER, AT THE TIME THE
AFFIDAVIT WAS FILED, /1/  NOR DID IT BECOME THE SUBJECT OF DISPUTE
UNTIL FIVE MONTHS LATER WHEN THE GOVERNMENT FILED IN THIS COURT ITS
MOTION TO DISMISS OR AFFIRM. 

[[HC375'(ORIGINAL DOCUMENT PAGE 375)'  EVEN THEN, THE UNITED STATES
DID NOT DENY THAT APPELLANTS HAD BEEN OFFERED CERTAIN ASSURANCES BY
GOVERNMENT ATTORNEYS, BUT STATED ONLY THAT THE AFFIDAVIT WAS NOT "AN
ACCURATE REPRESENTATION OF THE SUBSTANCE OF THE CONVERSATIONS BETWEEN
COUNSEL FOR APPELLANTS AND ATTORNEYS FOR THE GOVERNMENT."  MOTION TO
DISMISS OR AFFIRM, FILED SEPT. 13, 1972, P. 4 N. 3. 

THUS, THE RECORD BEFORE THE DISTRICT COURT INDICATED REASONABLE
RELIANCE ON THE GOVERNMENT'S ASSURANCES THAT THE SUIT WOULD NOT BE
SETTLED.  AND APPELLANTS DID NOT MOVE TO INTERVENE WITHIN FOUR DAYS OF
LEARNING THAT THEY COULD NO LONGER RELY ON THE GOVERNMENT TO PROTECT
THEIR INTERESTS.  ON THAT RECORD, THE DISTRICT COURT WAS OBLIGATED TO
CONCLUDE THAT THE MOTION WAS TIMELY FILED.  SINCE THE ALLEGATION OF
UNTIMELINESS WAS, IN MAY VIEW, THE ONLY NONFRIVOLOUS OBJECTION TO THE
MOTION, THE DISTRICT COURT'S DENIAL OF THE MOTION WAS UNQUESTIONABLY
ERRONEOUS.  I DISSENT. 

[[DFN 

/1/  "THE UNITED STATES FILED NO RESPONSE TO APPELLANTS'  MOTION TO
INTERVENE AND DID NOT OTHERWISE OBJECT TO THE MOTION."  BRIEF FOR
UNITED STATES 10. 

JACK GREENBERG ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE JAMES M. NABRIT III, ERIC SCHNAPPER, NATHANIEL R. JONES,
AND WILEY BRANTON. 

A. RAYMOND RANDOLPH, JR., ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD AND ASSISTANT
ATTORNEY GENERAL NORMAN.  GEORGE D. ZUCKERMAN, ASSISTANT ATTORNEY
GENERAL OF NEW YORK, ARGUED THE CAUSE FOR APPELLEE THE STATE OF NEW
YORK.  WITH HIM ON THE BRIEF WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL,
SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, JOHN G.
PROUDFIT, ASSISTANT ATTORNEY GENERAL, AND JUDITH T. KRAMER, DEPUTY
ASSISTANT ATTORNEY GENERAL. 
..END :
















PITTSBURGH PRESS CO. V. HUMAN REL. COMM'N 413 U.S. 376 


       CERTIORARI TO THE COMMONWEALTH COURT OF PENNSYLVANIA 

     NO. 72 - 419.  ARGUED MARCH 20, 1973--DECIDED JUNE 21, 1973; 4

  PA. COMMW.  448, 287 A.2D 161, AFFIRMED. 


    FOLLOWING A COMPLAINT AND HEARING, RESPONDENT PITTSBURGH

  COMMISSION ON HUMAN RELATIONS HELD THAT PETITIONER HAD VIOLATED A

  CITY ORDINANCE BY USING AN ADVERTISING SYSTEM IN ITS DAILY

  NEWSPAPER WHEREBY EMPLOYMENT OPPORTUNITIES ARE PUBLISHED UNDER

  HEADINGS DESIGNATING JOB PREFERENCE BY SEX.  ON APPEAL FROM

  AFFIRMANCE OF THE COMMISSION'S CEASE-AND-DESIST ORDER, THE COURT

  BELOW BARRED PETITIONER FROM REFERRING TO SEX IN EMPLOYMENT

  HEADINGS, UNLESS THE WANT ADS PLACED BENEATH THEM RELATE TO

  EMPLOYMENT OPPORTUNITIES NOT SUBJECT TO THE ORDINANCE'S

  PROHIBITION AGAINST SEX DISCRIMINATION.  PETITIONER CONTENDS THAT

  THE ORDINANCE CONTRAVENES ITS CONSTITUTIONAL RIGHTS TO FREEDOM OF

  THE PRESS.  HELD:  THE PITTSBURGH ORDINANCE AS CONSTRUED TO

  FORBID NEWSPAPERS TO CARRY SEX-DESIGNATED ADVERTISING COLUMNS FOR

  NONEXEMPT JOB OPPORTUNITIES DOES NOT VIOLATE PETITIONER'S FIRST

  AMENDMENT RIGHTS.  PP. 381 - 391. 

     (A) THE ADVERTISEMENTS HERE, WHICH DID NOT IMPLICATE THE

  NEWSPAPER'S FREEDOM OF EXPRESSION OR ITS FINANCIAL VIABILITY,

  WERE "PURELY COMMERCIAL ADVERTISING," WHICH IS NOT PROTECTED BY

  THE FIRST AMENDMENT.  VALENTINE V. CHRESTENSEN, 316 U.S. 52, 54. 

  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, DISTINGUISHED.  PP.

  384 - 387. 

   (B) PETITIONER'S ARGUMENT AGAINST MAINTAINING THE CHRESTENSEN

  DISTINCTION BETWEEN COMMERCIAL AND OTHER SPEECH IS UNPERSUASIVE

  IN THE CONTEXT OF A CASE LIKE THIS, WHERE THE REGULATION OF THE

  WANT ADS WAS INCIDENTAL TO AND CO-EXTENSIVE WITH THE REGULATION

  OF EMPLOYMENT DISCRIMINATION.  PP. 387 - 389. 

     (C) THE COMMISSION'S ORDER, WHICH WAS CLEAR AND NO BROADER
THAN

  NECESSARY, IS NOT A PRIOR RESTRAINT ENDANGERING ARGUABLY

  PROTECTED SPEECH.  PP. 389 - 390. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
WHITE, MARSHALL, AND REHNQUIST, JJ., JOINED.  BURGER, C. J., POST, P.
393, AND DOUGLAS, J., POST, P. 397, FILED DISSENTING OPINIONS. 

[[HC377'(ORIGINAL DOCUMENT PAGE 377)'  STEWART, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P. 400. 
BLACKMUN, J., FILED A DISSENTING OPINION, POST, P. 404. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE HUMAN RELATIONS ORDINANCE OF THE CITY OF PITTSBURGH (THE
ORDINANCE) HAS BEEN CONSTRUED BELOW BY THE COURTS OF PENNSYLVANIA AS
FORBIDDING NEWSPAPERS TO CARRY "HELP-WANTED" ADVERTISEMENTS IN SEX
DESIGNATED COLUMNS EXCEPT WHERE THE EMPLOYER OR ADVERTISER IS FREE TO
MAKE HIRING OR EMPLOYMENT REFERRAL DECISIONS ON THE BASIS OF SEX. 

[[HC378'(ORIGINAL DOCUMENT PAGE 378)'  WE ARE CALLED UPON TO DECIDE
WHETHER THE ORDINANCE AS SO CONSTRUED VIOLATES THE FREEDOMS OF SPEECH
AND OF THE PRESS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS. 
THIS ISSUE IS A SENSITIVE ONE, AND A FULL UNDERSTANDING OF THE CONTEXT
IN WHICH IT ARISES IS CRITICAL TO ITS RESOLUTION. 

        I 

THE ORDINANCE PROSCRIBES DISCRIMINATION IN EMPLOYMENT ON THE BASIS
OF RACE, COLOR, RELIGION, ANCESTRY, NATIONAL ORIGIN, PLACE OF BIRTH, OR
SEX.  /1/  IN RELEVANT PART, ^ 8 OF THE ORDINANCE DECLARES IT TO BE
UNLAWFUL EMPLOYMENT PRACTICE, "EXCEPT WHERE BASED UPON A BONA FIDE
OCCUPATIONAL EXEMPTION CERTIFIED BY THE COMMISSION": 

     "(A) FOR ANY EMPLOYER TO REFUSE TO HIRE ANY PERSON OR
OTHERWISE

  DISCRIMINATE AGAINST ANY PERSON WITH RESPECT TO HIRING . . .

  BECAUSE OF . . . SEX. 

*          *          *          * 

     "(E) FOR ANY 'EMPLOYER,' EMPLOYMENT AGENCY OR LABOR

  ORGANIZATION TO PUBLISH OR CIRCULATE, OR TO CAUSE TO BE PUBLISHED

  OR CIRCULATED, ANY NOTICE OR ADVERTISEMENT RELATING TO

  'EMPLOYMENT' OR MEMBERSHIP WHICH INDICATES ANY DISCRIMINATION

  BECAUSE OF . . . SEX. 

        *          *          *    * 

     "(J) FOR ANY PERSON, WHETHER OR NOT AN EMPLOYER, EMPLOYMENT

  AGENCY OR LABOR ORGANIZATION, TO AID . . . IN THE DOING OF ANY

  ACT DECLARED TO BE UNLAWFUL EMPLOYMENT PRACTICE BY THIS ORDINANCE

  . . . ." 

THE PRESENT PROCEEDINGS WERE INITIATED ON OCTOBER 9, 1969, WHEN THE
NATIONAL ORGANIZATION FOR WOMEN, INC. (NOW) FILED A COMPLAINT WITH THE
PITTSBURGH COMMISSION ON HUMAN RELATIONS (THE COMMISSION), WHICH IS
CHARGED WITH IMPLEMENTING THE ORDINANCE. 

[[HC379'(ORIGINAL DOCUMENT PAGE 379)'  THE COMPLAINT ALLEGED THAT
THE PITTSBURGH PRESS CO. (PITTSBURGH PRESS) WAS VIOLATING ^ 8 (J) OF
THE ORDINANCE BY "ALLOWING EMPLOYERS TO PLACE ADVERTISEMENTS IN THE
MALE OR FEMALE COLUMNS, WHEN THE JOBS ADVERTISED OBVIOUSLY DO NOT HAVE
BONA FIDE OCCUPATION QUALIFICATIONS OR EXCEPTIONS . . . ."  FINDING
PROBABLE CAUSE TO BELIEVE THAT PITTSBURGH PRESS WAS VIOLATING THE
ORDINANCE, THE COMMISSION HELD A HEARING, AT WHICH IT RECEIVED EVIDENCE
AND HEARD ARGUMENT FROM THE PARTIES AND FROM OTHER INTERESTED
ORGANIZATIONS.  AMONG THE EXHIBITS INTRODUCED AT THE HEARING WERE
CLIPPINGS FROM THE HELP-WANTED ADVERTISEMENTS CARRIED IN THE JANUARY 4,
1970, EDITION OF THE SUNDAY PITTSBURGH PRESS, ARRANGED BY COLUMN.  /2/
IN MANY CASES, THE ADVERTISEMENTS CONSISTED SIMPLY OF JOB TITLE, THE
SALARY, AND THE EMPLOYMENT AGENCY CARRYING THE LISTING, WHILE OTHERS
INCLUDED SOMEWHAT MORE EXTENSIVE JOB DESCRIPTIONS.  /3/ 

ON JULY 23, 1970, THE COMMISSION ISSUED A DECISION AND ORDER.  /4/
IT FOUND THAT DURING 1969 PITTSBURGH PRESS CARRIED A TOTAL OF 248,000
HELP-WANTED ADVERTISEMENT; THAT ITS PRACTICE BEFORE OCTOBER, 1969, WAS
TO USE COLUMNS CAPTIONED "MALE HELP WANTED,"  "FEMALE HELP WANTED," AND
"MALE-FEMALE HELP WANTED"; THAT IT THEREAFTER USED THE CAPTIONS "JOBS -
MALE INTEREST," "JOBS -- FEMALE INTEREST," AND "MALE-FEMALE"; AND THAT
THE ADVERTISEMENTS WERE PLACED IN THE RESPECTIVE COLUMNS ACCORDING TO
THE ADVERTISER'S WISHES, EITHER VOLUNTEERED BY THE ADVERTISER OR
OFFERED IN RESPONSE TO INQUIRY BY PITTSBURGH PRESS.  /5/ 

[[HC380'(ORIGINAL DOCUMENT PAGE 380)'  THE COMMISSION FIRST
CONCLUDED THAT ^ 8 (E) OF THE ORDINANCE FORBADE EMPLOYERS, EMPLOYMENT
AGENCIES, AND LABOR ORGANIZATIONS FROM SUBMITTING ADVERTISEMENTS FOR
PLACEMENT IN SEX-DESIGNATED COLUMNS.  IT THEN HELD THAT PITTSBURGH
PRESS, IN VIOLATION OF ^ 8 (J), AIDED THE ADVERTISERS BY MAINTAINING A
SEX-DESIGNATED CLASSIFICATION SYSTEM.  AFTER SPECIFICALLY CONSIDERING
AND REJECTING THE ARGUMENT THAT THE ORDINANCE VIOLATED THE FIRST
AMENDMENT, THE COMMISSION ORDERED PITTSBURGH PRESS TO CEASE AND DESIST
SUCH VIOLATIONS AND TO UTILIZE A CLASSIFICATION SYSTEN WITH NO
REFERENCE TO SEX.  THIS ORDER WAS AFFIRMED IN ALL RELEVANT RESPECTS BY
THE COURT OF COMMON PLEAS.  /6/ 

ON APPEAL IN THE COMMONWEALTH COURT, THE SCOPE OF THE ORDER WAS
NARROWED TO ALLOW PITTSBURGH PRESS TO CARRY ADVERTISEMENTS IN SEX-
DESIGNATED COLUMNS FOR JOBS EXEMPT FROM THE ANTIDISCRIMINATION
PROVISIONS OF THE ORDINANCE.  AS POINTED OUT IN THAT COURT'S OPINION,
THE ORDINANCE DOES NOT APPLY TO EMPLOYERS OF FEWER THAN FIVE PERSONS,
TO EMPLOYERS OUTSIDE THE CITY OF PITTSBURGH, OR TO RELIGIOUS,
FRATERNAL, CHARITABLE, OR SECTARIAN ORGANIZATION, NOR DOES IT APPLY TO
EMPLOYMENT IN DOMESTIC SERVICE OR IN JOBS FOR WHICH THE COMMISSION HAS
CERTIFIED A BONA FIDE OCCUPATIONAL EXCEPTION.  THE MODIFIED ORDER BARS
"ALL REFERENCE TO SEX IN EMPLOYMENT ADVERTISING COLUMN HEADINGS, EXCEPT
AS MAY BE EXEMPT UNDER SAID ORDINANCE, OR AS MAY BE CERTIFIED AS EXEMPT
UNDER SAID ORDINANCE, OR AS MAY BE CERTIFIED AS EXEMPT BY SAID
COMMISSION."  4 PA. COMMW.  448, 470, 287 A. 2D 161, 172 (1972).  THE
PENNSYLVANIA SUPREME COURT DENIED REVIEW, AND WE GRANTED CERTIORARI TO
DECIDE WHETHER, AS PITTSBURGH PRESS CONTENDS, THE MODIFIED ORDER
VIOLATES THE FIRST AMENDMENT BY RESTRICTING ITS EDITORIAL JUDGMENT. 
409 U.S. 1036 (1972).  /7/  WE AFFIRM. 

HC381

        II 

THERE IS LITTLE NEED TO REITERATE THAT THE FREEDOMS OF SPEECH AND OF
THE PRESS RANK AMONG OUR MOST CHERISHED LIBERTIES.  AS MR. JUSTICE
BLACK PUT IT:  "IN THE FIRST AMENDMENT THE FOUNDING FATHERS GAVE THE
FREE PRESS THE PROTECTION IT MUST HAVE TO FULFILL ITS ESSENTIAL ROLE IN
OUR DEMOCRACY."  NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713, 717
(1971) (CONCURRING OPINION).  THE DURABILITY OF OUR SYSTEM OF SELF
GOVERNMENT HINGES UPON THE PRESERVATION OF THESE FREEDOMS. 

"(SINCE INFORMED PUBLIC OPINION IS THE MOST POTENT OF ALL RESTRAINTS
UPON MISGOVERNMENT, THE SUPPRESSION OR ABRIDGEMENT OF THE PUBLICITY
AFFORDED BY A FREE PRESS CANNOT BE REGARDED OTHERWISE THAN WITH GRAVE
CONCERN.  . . . A FREE PRESS STANDS AS ONE OF THE GREAT INTERPRETERS
BETWEEN THE GOVERNMENT AND THE PEOPLE.  TO ALLOW IT TO BE FETTERED IS
TO FETTER OURSELVES."  GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233,
250 (1936). 

THE REPEATED EMPHASIS ACCORDED THIS THEME IN THE DECISIONS OF THIS
COURT SERVES TO UNDERLINE THE NARROWNESS OF THE RECOGNIZED EXCEPTIONS
TO THE PRINCIPLE THAT THE PRESS MAY NOT BE REGULATED BY THE
GOVERNMENT.  OUR INQUIRY MUST THEREFORE BE WHETHER THE CHALLENGED ORDER
FALLS WITHIN ANY OF THESE EXCEPTIONS. 

AT THE OUTSET, HOWEVER, IT IS IMPORTANT TO IDENTIFY WITH SOME CARE THE
NATURE OF THE ALLEGED ABRIDGMENT.  THIS IS NOT A CASE IN WHICH THE
CHALLENGED LAW ARGUABLY DISABLES THE PRESS BY UNDERMINING ITS
INSTITUTIONAL VIABILITY.  AS THE PRESS HAS EVOLVED FROM AN ASSORTMENT
OF SMALL PRINTERS INTO A DIVERSE AGGREGATION INCLUDING LARGE PUBLISHING
EMPIRES AS WELL, THE PARALLEL GROWTH AND COMPLEXITY OF THE ECONOMY HAVE
LED TO EXTENSIVE REGULATORY LEGISLATION FROM WHICH "(THE PUBLISHER OF A
NEWSPAPER HAS NO SPECIAL IMMUNITY."  ASSOCIATED PRESS V. NLRB, 301 U.S.
103, 132 (1937).  ACCORDINGLY, THIS COURT HAS UPHELD APPLICATION TO THE
PRESS OF THE NATIONAL LABOR RELATIONS ACT, IBID.; THE FAIR LABOR
STANDARDS ACT, MABEE V. WHITE PLAINS PUBLISHING CO., 327 U.S. 178
(1946); OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186 (1946);
AND THE SHERMAN ANTITRUST ACT, ASSOCIATED PRESS V. UNITED STATES, 326
U.S. 1 (1945); CITIZEN PUBLISHING CO. V. UNITED STATES, 394 U.S. 131
(1969). 

[[HC383'(ORIGINAL DOCUMENT PAGE 383)'  SEE ALSO BRANZBURG V. HAYES,
408 U.S. 665 (1972).  YET THE COURT HAS RECOGNIZED ON SEVERAL OCCASIONS
THE SPECIAL INSTITUTIONAL NEEDS OF A VIGOUROUS PRESS BY STRIKING DOWN
LAWS TAXING THE ADVERTISING REVENUE OF NEWSPAPERS WITH CIRCULATIONS IN
EXCESS OF 20,000, GROSJEAN V. AMERICAN PRESS CO., SUPRA; REQUIRING A
LICENSE FOR THE DISTRIBUTION OF PRINTED MATTER, LOVELL V. GRIFFIN, 303
U.S. 444 (1938); AND PROHIBITING THE DOOR-TO-DOOR DISTRIBUTION OF
LEAFLETS, MARTIN V. STRUTHERS, 319 U.S. 141 (1943).  /8/ 

BUT NO SUGGESTION IS MADE IN THIS CASE THAT THE ORDINANCE WAS PASSED
WITH ANY PURPOSE OF MUZZLING OR CURBING THE PRESS.  NOR DOES PITTSBURGH
PRESS ARGUE THAT THE ORDINANCE THREATENS ITS FINANCIAL VIABILITY /9/
OR IMPAIRS IN ANY SIGNIFICANT WAY ITS ABILITY TO PUBLISH AND DISTRIBUTE
ITS NEWSPAPER.  IN ANY EVENT, SUCH A CONTENTION WOULD NOT BE SUPPORTED
BY THE RECORD. 

        III 

IN A LIMITED WAY, HOWEVER, THE ORDINANCE AS CONSTRUED DOES AFFECT
THE MAKEUP OF THE HELP-WANTED SECTION OF THE NEWSPAPER.  UNDER THE
MODIFIED ORDER, PITTSBURGH PRESS WILL BE REQUIRED TO ABANDON ITS
PRESENT POLICY OF PROVIDING SEX-DESIGNATED COLUMNS AND ALLOWING
ADVERTISERS TO SELECT THE COLUMNS IN WHICH THEIR HELP-WANTED
ADVERTISEMENTS WILL BE PLACED. 

[[HC384'(ORIGINAL DOCUMENT PAGE 384)'  IN ADDITION, THE ORDER DOES
NOT ALLOW PITTSBURGH PRESS TO SUBSTITUTE A POLICY UNDER WHICH IT WOULD
MAKE AN INDEPENDENT DECISION REGARDING PLACEMENT IN SEX-DESIGNATED
COLUMNS. 

RESPONDENTS RELY PRINCIPALLY ON THE ARGUMENT THAT THIS REGULATION IS
PERMISSIBLE BECAUSE THE SPEECH IS COMMERCIAL SPEECH UNPROTECTED BY THE
FIRST AMENDMENT.  THE COMMERCIAL-SPEECH DOCTRINE IS TRACEABLE TO THE
BRIEF OPINION IN VALENTINE V. CHRESTENSEN, 316 U.S. 52 (1942),
SUSTAINING A CITY ORDINANCE WHICH HAD BEEN INTERPRETED TO BAN THE
DISTRIBUTION BY HANDBILL OF AN ADVERTISEMENT SOLICITING CUSTOMERS TO
PAY ADMISSION TO TOUR A SUBMARINE.  MR. JUSTICE ROBERTS, SPEAKING FOR A
UNANIMOUS COURT, SAID: 

"WE ARE . . . CLEAR THAT THE CONSTITUTION IMPOSES NO SUCH RESTRAINT
ON GOVERNMENT AS RESPECTS PURELY COMMERCIAL ADVERTISING."  ID., AT 54. 

SUBSEQUENT CASES HAVE DEMONSTRATED, HOWEVER, THAT SPEECH IS NOT
RENDERED COMMERCIAL BY THE MERE FACT THAT IT RELATES TO AN
ADVERTISEMENT.  IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964),
A CITY OFFICIAL OF MONTGOMERY, ALABAMA, BROUGHT A LIBEL ACTION AGAINST
FOUR CLERGYMEN AND THE NEW YORK TIMES.  THE NAMES OF THE CLERGYMEN HAD
APPEARED IN AN ADVERTISEMENT, CARRIED IN THE TIMES, CRITICIZING POLICE
ACTION DIRECTED AGAINST MEMBERS OF THE CIVIL RIGHTS MOVEMENT.  IN
HOLDING THAT THIS POLITICAL ADVERTISEMENT WAS ENTITLED TO THE SAME
DEGREE OF PROTECTION AS ORDINARY SPEECH, THE COURT STATED: 

"THAT THE TIMES WAS PAID FOR PUBLISHING THE ADVERTISEMENT IS AS
IMMATERIAL IN THIS CONNECTION AS IS THE FACT THAT NEWSPAPERS AND BOOKS
ARE SOLD."  ID., AT 266. 

[[HC385'(ORIGINAL DOCUMENT PAGE 385)' 

SEE ALSO SMITH V. CALIFORNIA, 361 U.S. 147 (1959); GINZBURG V.
UNITED STATES, 383 U.S. 463, 474 (1966).  IF A NEWSPAPER'S PROFIT
MOTIVE WERE DETERMINATIVE, ALL ASPECTS OF ITS OPERATIONS -- FROM THE
SELECTION OF NEWS STORIES TO THE CHOICE OF EDITORIAL POSITION -- WOULD
BE SUBJECT TO REGULATION IF IT COULD BE ESTABLISHED THAT THEY WERE
CONDUCTED WITH A VIEW TOWARD INCREASED SALES.  SUCH A BASIS FOR
REGULATION CLEARLY WOULD BE INCOMPATIBLE WITH THE FIRST AMENDMENT. 

THE CRITICAL FEATURE OF THE ADVERTISEMENT IN VALENTINE V.
CHRESTENSEN WAS THAT, IN THE COURT'S VIEW, IT DID NO MORE THAN PROPOSE
A COMMERCIAL TRANSACTION, THE SALE OF ADMISSION TO A SUBMARINE.  IN NEW
YORK TIMES CO. V. SULLIVAN, MR. JUSTICE BRENNAN, FOR THE COURT, FOUND
THE CHRESTENSEN ADVERTISEMENT EASILY DISTINGUISHABLE: 

     "THE PUBLICATION HERE WAS NOT A 'COMMERCIAL'  ADVERTISEMENT IN

  THE SENSE IN WHICH THE WORD WAS USED IN CHRESTENSEN.  IT

  COMMUNICATED INFORMATION, EXPRESSED OPINION, RECITED GRIEVANCES,

 PROTESTED CLAIMED ABUSES, AND SOUGHT FINANCIAL SUPPORT ON BEHALF

  OF A MOVEMENT WHOSE EXISTENCE AND OBJECTIVES ARE MATTERS OF THE

  HIGHEST PUBLIC INTEREST AND CONCERN."  376 U.S., AT 266. 

IN THE CRUCIAL RESPECTS, THE ADVERTISEMENTS IN THE PRESENT RECORD
RESEMBLE THE CHRESTENSEN RATHER THAN THE SULLIVAN ADVERTISEMENT.  NONE
EXPRESSES A POSITION ON WHETHER, AS A MATTER OF SOCIAL POLICY, CERTAIN
POSITIONS OUGHT TO BE FILLED BY MEMBERS OF ONE OR THE OTHER SEX, NOR
DOES ANY OF THEM CRITICIZE THE ORDINANCE OR THE COMMISSION'S
ENFORCEMENT PRACTICES.  EACH IS NO MORE THAN A PROPOSAL OF POSSIBLE
EMPLOYMENT.  THE ADVERTISEMENTS ARE THUS CLASSIC EXAMPLES OF COMMERCIAL
SPEECH. 

BUT PITTSBURGH PRESS CONTENDS THAT CHRESTENSEN IS NOT APPLICABLE, AS
THE FOCUS IN THIS CASE MUST BE UPON THE EXERCISE OF EDITORIAL JUDGMENT
BY THE NEWSPAPER AS TO WHERE TO PLACE THE ADVERTISEMENT RATHER THAN
UPON ITS COMMERCIAL CONTENT. 

[[HC386'(ORIGINAL DOCUMENT PAGE 386)'  THE COMMISSION MADE A FINDING
OF FACT THAT PITTSBURGH PRESS DEFERS IN EVERY CASE TO THE ADVERTISER'S
WISHES REGARDING THE COLUMN IN WHICH A WANT AD SHOULD BE PLACED.  IT IS
NONETHELESS TRUE, HOWEVER, THAT THE NEWSPAPER DOES MAKE A JUDGMENT
WHETHER OR NOT TO ALLOW THE ADVERTISER TO SELECT THE COLUMN.  WE MUST
THEREFORE CONSIDER WHETHER THIS DEGREE OF JUDGMENTAL DISCRETION BY THE
NEWSPAPER WITH RESPECT TO A PURELY COMMERCIAL ADVERTISEMENT IS
DISTINGUISHABLE, FOR THE PURPOSES OF FIRST AMENDMENT ANALYSIS, FROM THE
CONTENT OF THE ADVERTISEMENT ITSELF.  OR, TO PUT THE QUESTION
DIFFERENTLY, IS THE CONDUCT OF THE NEWSPAPER WITH RESPECT TO THE
EMPLOYMENT WANT AD ENTITLED TO A PROTECTION UNDER THE FIRST AMENDMENT
WHICH THE COURT HELD IN CHRESTENSEN WAS NOT AVAILABLE TO A COMMERCIAL
ADVERTISER?     UNDER SOME CIRCUMSTANCES, AT LEAST, A NEWSPAPER'S
EDITORIAL JUDGMENTS IN CONNECTION WITH AN ADVERTISEMENT TAKE ON THE
CHARACTER OF THE ADVERTISEMENT AND, IN THOSE CASES, THE SCOPE OF THE
NEWSPAPER'S FIRST AMENDMENT PROTECTION MAY BE AFFECTED BY THE CONTENT
OF THE ADVERTISEMENT.  IN THE CONTEXT OF A LIBELOUS ADVERTISEMENT, FOR
EXAMPLE, THIS COURT HAS HELD THAT THE FIRST AMENDMENT DOES NOT SHIELD A
NEWSPAPER FROM PUNISHMENT FOR LIBEL WHEN WITH ACTUAL MALICE IT
PUBLISHES A FALSELY DEFAMATORY ADVERTISEMENT.  NEW YORK TIMES CO. V.
SULLIVAN, SUPRA, AT 279 - 280.  ASSUMING THE REQUISITE STATE OF MIND,
THEN, NOTHING IN THE NEWSPAPER'S EDITORIAL DECISION TO ACCEPT AN
ADVERTISEMENT CHANGES THE CHARACTER OF THE FALSELY DEFAMATORY
STATEMENTS.  THE NEWSPAPER MAY NOT DEFEND A LIBEL SUIT ON THE GROUND
THAT THE FALSELY DEFAMATORY STATEMENTS ARE NOT ITS OWN. 

SIMILARLY, A COMMERCIAL ADVERTISEMENT REMAINS COMMERCIAL IN THE
HANDS OF THE MEDIA, AT LEAST UNDER SOME CIRCUMSTANCES.  /10/ 

[[HC387'(ORIGINAL DOCUMENT PAGE 387)'  IN CAPITAL BROADCASTING CO.
V. ACTING ATTORNEY GENERAL, 405 U.S. 1000 (1972), AFF'G 333 F.SUPP. 
582 (DC 1971), THIS COURT SUMMARILY AFFIRMED A DISTRICT COURT DECISION
SUSTAINING THE CONSTITUTIONALITY OF 15 U.S.C. ^ 1335, WHICH PROHIBITS
THE ELECTRONIC MEDIA FROM CARRYING CIGARETTE ADVERTISEMENTS.  THE
DISTRICT COURT THERE FOUND THAT THE ADVERTISING SHOULD BE TREATED AS
COMMERCIAL SPEECH, EVEN THOUGH THE FIRST AMENDMENT CHALLENGE WAS
MOUNTED BY RADIO BROADCASTERS RATHER THAN BY ADVERTISERS.  BECAUSE OF
THE PECULIAR CHARACTERISTICS OF THE LECTRONIC MEDIA, NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 226 - 227 (1943),
CAPITAL BROADCASTING IS NOT DISPOSITIVE HERE ON THE ULTIMATE QUESTION
OF THE CONSTITUTIONALITY OF THE ORDINANCE.  ITS SIGNIFICANCE LIES,
RATHER, IN ITS RECOGNITION THAT THE EXERCISE OF THIS KIND OF EDITORIAL
JUDGMENT DOES NOT NECESSARILY STRIP COMMERCIAL ADVERTISING OF ITS
COMMERCIAL CHARACTER.  /11/ 

AS FOR THE PRESENT CASE, WE ARE NOT PERSUADED THAT EITHER THE
DECISION TO ACCEPT A COMMERCIAL ADVERTISEMENT WHICH THE ADVERTISER
DIRECTS TO BE PLACED IN A SEX-DESIGNATED COLUMN OR THE ACTUAL PLACEMENT
THERE LIFTS THE NEWSPAPER'S ACTIONS FROM THE CATEGORY OF COMMERCIAL
SPEECH.  BY IMPLICATION AT LEAST, AN ADVERTISER WHOSE WANT AD APPEARS
IN THE "JOBS -- MALE INTEREST" COLUMN IS LIKELY TO DISCRIMINATE AGAINST
WOMEN IN HIS HIRING DECISIONS. 

[[HC388'(ORIGINAL DOCUMENT PAGE 388)'  NOTHING IN A SEX-DESIGNATED
COLUMN HEADING SUFFICIENTLY DISSOCIATES THE DESIGNATION FROM THE WANT
ADS PLACED BENEATH IT TO MAKE THE PLACEMENT SEVERABLE FOR FIRST
AMENDMENT PURPOSES FROM THE WANT ADS THEMSELVES.  THE COMBINATION,
WHICH CONVEYS ESSENTIALLY THE SAME MESSAGE AS AN OVERTLY DISCRIMINATORY
WANT AD, IS IN PRACTICAL EFFECT AN INTEGRATED COMMERCIAL STATEMENT. 

PITTSBURGH PRESS GOES ON TO ARGUE THAT IF THIS PACKAGE OF
ADVERTISEMENT AND PLACEMENT IS COMMERCIAL SPEECH, THEN COMMERCIAL
SPEECH SHOULD BE ACCORDED A HIGHER LEVEL OF PROTECTION THAN CHRISTENSEN
AND ITS PROGENY WOULD SUGGEST.  INSISTING THAT THE EXCHANGE OF
INFORMATION IS AS IMPORTANT IN THE COMMERCIAL REALM AS IN ANY OTHER,
THE NEWSPAPER HERE WOULD HAVE US ABROGATE THE DISTINCTION BETWEEN
COMMERCIAL AND OTHER SPEECH. 

WHATEVER THE MERITS OF THIS CONTENTION MAY BE IN OTHER CONTEXTS, IT
IS UNPERSUASIVE IN THIS CASE.  DISCRIMINATION IN EMPLOYMENT IS NOT ONLY
COMMERCIAL ACTIVITY, IT IS ILLEGAL COMMERCIAL ACTIVITY UNDER THE
ORDINANCE.  /12/  WE HAVE NO DOUBT THAT A NEWSPAPER CONSTITUTIONALLY
COULD BE FORBIDDEN TO PUBLISH A WANT AD PROPOSING A SALE OF NARCOTICS
OR SOLICITING PROSTITUTES.  NOR WOULD THE RESULT BE DIFFERENT IF THE
NATURE OF THE TRANSACTION WERE INDICATED BY PLACEMENT UNDER COLUMNS
CAPTIONED "NARCOTICS FOR SALE" AND "PROSTITUTES WANTED" RATHER THAN
STATED WITHIN THE FOUR CORNERS OF THE ADVERTISEMENT. 

THE ILLEGALITY IN THIS CASE MAY BE LESS OVERT, BUT WE SEE NO
DIFFERENCE IN PRINCIPLE HERE.  SEX DISCRIMINATION IN NONEXEMPT
EMPLOYMENT HAS BEEN DECLARED ILLEGAL UNDER ^ 8 (A) OF THE ORDINANCE, A
PROVISION NOT CHALLENGED HERE. 

[[HC389'(ORIGINAL DOCUMENT PAGE 389)'  AND ^ 8 (E) OF THE ORDINANCE
FORBIDS ANY EMPLOYER, EMPLOYMENT AGENCY, OR LABOR UNION TO PUBLISH OR
CAUSE TO BE PUBLISHED ANY ADVERTISEMENT "INDICATING" SEX
DISCRIMINATION.  THIS, TOO, IS UNCHALLENGED.  MOREOVER, THE COMMISSION
SPECIFICALLY CONCLUDED THAT IT IS AN UNLAWFUL EMPLOYMENT PRACTICE FOR
AN ADVERTISER TO CAUSE AN EMPLOYMENT ADVERTISEMENT TO BE PUBLISHED IN A
SEX-DESIGNATED COLUMN. 

PRESS WAS FOUND TO HAVE VIOLATED AND THE ONLY PROVISION UNDER ATTACK
HERE, MAKES IT UNLAWFUL FOR "ANY PERSON . . . TO AID . . . IN THE DOING
OF ANY ACT DECLARED TO BE AN UNLAWFUL EMPLOYMENT PRACTICE BY THIS
ORDINANCE."  THE COMMISSION AND THE COURTS BELOW CONCLUDED THAT THE
PRACTICE OF PLACING WANT ADS FOR NONEXEMPT EMPLOYMENT IN SEX-DESIGNATED
COLUMNS DID INDEED "AID"  EMPLOYERS TO INDICATE ILLEGAL SEX
PREFERENCES.  THE ADVERTISEMENT, AS EMBROIDERED BY THEIR PLACEMENT,
SIGNALED THAT THE ADVERTISERS WERE LIKELY TO SHOW AN ILLEGAL SEX
PREFERENCE IN THEIR HIRING DECISIONS.  ANY FIRST AMENDMENT INTEREST
WHICH MIGHT BE SERVED BY ADVERTISING AN ORDINARY COMMERCIAL PROPOSAL
AND WHICH MIGHT ARGUABLY OUTWEIGH THE GOVERNMENTAL INTEREST SUPPORTING
THE REGULATION IS ALTOGETHER ABSENT WHEN THE COMMERCIAL ACTIVITY ITSELF
IS ILLEGAL AND THE RESTRICTION ON ADVERTISING IS INCIDENTAL TO A VALID
LIMITATION ON ECONOMIC ACTIVITY. 

        IV 

IT IS SUGGESTED, IN THE BRIEF OF AN AMICUS CURIAE, THAT APART FROM
OTHER CONSIDERATIONS, THE COMMISSION'S ORDER SHOULD BE CONDEMNED AS A
PRIOR RESTRAINT ON EXPRESSION.  /13/  AS DESCRIBED BY BLACKSTONE, THE
PROTECTION AGAINST PRIOR RESTRAINT AT COMMON LAW BARRED ONLY A SYSTEM
OF ADMINISTRATIVE CENSORSHIP: 

"TO SUBJECT THE PRESS TO THE RESTRICTIVE POWER OF A LICENSER, AS WAS
FORMERLY DONE, BOTH BEFORE AND SINCE THE REVOLUTION, . . . IS TO
SUBJECT ALL FREEDOM OF SENTIMENT TO THE PREJUDICES OF ONE MAN, AND MAKE
HIM THE ARBITRARY AND INFALLIBLE JUDGE OF ALL CONTROVERTED POINTS IN
LEARNING, RELIGION, AND GOVERNMENT."  4 W. BLACKSTONE, COMMENTARIES *
152. 

[[HC390'(ORIGINAL DOCUMENT PAGE 390)' 

WHILE THE COURT BOLDLY STEPPED BEYOND THIS NARROW DOCTRINE IN NEAR
V. MINNESOTA, 283 U.S. 697 (1931), IN STRIKING DOWN AN INJUNCTION
AGAINST FURTHER PUBLICATION OF A NEWSPAPER FOUND TO BE A PUBLIC
NUISANCE, IT HAS NEVER HELD THAT ALL INJUNCTIONS ARE IMPERMISSIBLE. 
SEE LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S. 143 (1951).  THE
SPECIAL VICE OF A PRIOR RESTRAINT IS THAT COMMUNICATION WILL BE
SUPPRESSED, EITHER DIRECTLY OR BY INDUCING EXCESSIVE CAUTION IN THE
SPEAKER, BEFORE AN ADEQUATE DETERMINATION THAT IT IS UNPROTECTED BY THE
FIRST AMENDMENT. 

THE PRESENT ORDER DOES NOT ENDANGER ARGUABLY PROTECTED SPEECH. 
BECAUSE THE ORDER IS BASED ON A CONTINUING COURSE OF REPETITIVE
CONDUCT, THIS IS NOT A CASE IN WHICH THE COURT IS ASKED TO SPECULATE AS
TO THE EFFECT OF PUBLICATION.  CF. NEW YORK TIMES CO. V. UNITED STATES,
403 U.S. 713 (1971).  MOREOVER, THE ORDER IS CLEAR AND SWEEPS NO MORE
BROADLY THAN NECESSARY.  AND BECAUSE NO INTERIM RELIEF WAS GRANTED, THE
ORDER WILL NOT HAVE GONE INTO FINAL EFFECT BEFORE OUR FINAL
DETERMINATION THAT THE ACTIONS OF PITTSBURGH PRESS WERE UNPROTECTED. 
/14/

        V 

WE EMPHASIZE THAT NOTHING IN OUR HOLDING ALLOWS GOVERNMENT AT ANY
LEVEL TO FORBID PITTSBURGH PRESS TO PUBLISH AND DISTRIBUTE
ADVERTISEMENTS COMMENTING ON THE ORDINANCE, THE ENFORCEMENT PRACTICES
OF THE COMMISSION, OR THE PROPRIETY OF SEX PREFERENCES IN EMPLOYMENT. 

[[HC391'(ORIGINAL DOCUMENT PAGE 391)'  NOR, A FORTIORI, DOES OUR
DECISION AUTHORIZE ANY RESTRICTION WHATEVER, WHETHER OF CONTENT OR
LAYOUT, ON STORIES OR COMMENTARY ORIGINATED BY PITTSBURGH PRESS, ITS
COLUMNISTS, OR ITS CONTRIBUTORS.  ON THE CONTRARY, WE REAFFIRM
UNEQUIVOCALLY THE PROTECTION AFFORDED TO EDITORIAL JUDGMENT AND TO THE
FREE EXPRESSION OF VIEWS ON THESE AND OTHER ISSUES, HOWEVER
CONTROVERSIAL.  WE HOLD ONLY THAT THE COMMISSION'S MODIFIED ORDER,
NARROWLY DRAWN TO PROHIBIT PLACEMENT IN SEX-DESIGNATED COLUMNS OF
ADVERTISEMENTS FOR NONEXEMPT JOB OPPORTUNITIES, DOES NOT INFRINGE THE
FIRST AMENDMENT RIGHTS OF PITTSBURGH PRESS. 

  AFFIRMED. 

(FOR APPENDIX TO OPINION OF THE COURT, SEE POST, P. 392.).
(APPENDIX OMITTED) 

/1/  FOR THE FULL TEXT OF THE ORDINANCE AND THE 1969 AMENDMENT
ADDING SEX TO THE LIST OF PROSCRIBED CLASSIFICATIONS, SEE APP. 410A -
436A. 

/2/  THESE EXHIBITS ARE REPORDUCED IN APP. 299A - 333A. 

/3/  FOR EXAMPLES OF THESE WANT ADS, SEE THE APPENDIX TO THIS
OPINION, INFRA, AT 392 - 393. 

/4/  THE FULL TEXT OF THE COMMISSION'S DECISION AND ORDER IS SET
FORTH IN THE APPENDIX TO THE PETITION FOR CERTIORARI, AT 1A - 18A. 

/5/  THE COMMISSION SPECIFICALLY FOUND THAT: 

"5.  THE PITTSBURGH PRESS PERMITS THE ADVERTISER TO SELECT THE
COLUMN WITHIN WHICH ITS ADVERTISEMENT IS TO BE INSERTED. 

"6.  WHEN AN ADVERTISER DOES NOT INDICATE A COLUMN, THE PRESS ASKS
THE ADVERTISER WHETHER IT WANTS A MALE OR FEMALE FOR THE JOB AND THEN
INSERTS THE ADVERTISEMENT IN THE JOBS -- MALE INTEREST OR JOBS --
FEMALE INTEREST COLUMN ACCORDINGLY."  ID., AT 16A. 

/6/  SEE ID., AT 19A. 

/7/  PITTSBURGH PRESS ALSO ARGUES THAT THE ORDINANCE VIOLATES DUE TO
PROCESS IN THAT THERE IS NO RATIONAL CONNECTION BETWEEN SEX-DESIGNATED
COLUMN HEADINGS AND SEX DISCRIMINATION IN EMPLOYMENT.  IT DRAWS
ATTENTION TO A DISCLAIMER WHICH IT RUNS AT THE BEGINNING OF EACH OF THE
"JOBS -- MALE INTEREST" AND "JOBS -- FEMALE INTEREST" COLUMNS: 

"NOTICE TO JOB SEEKERS" 

"JOBS ARE ARRANGED UNDER MALE AND FEMALE CLASSIFICATIONS FOR THE
CONVENIENCE OF OUR READERS.  THIS IS DONE BECAUSE MOST JOBS GENERALLY
APPEAL MORE TO PERSONS OF ONE SEX THAN THE OTHER.  VARIOUS LAWS AND
ORDINANCES -- LOCAL, STATE, AND FEDERAL, PROHIBIT DISCRIMINATION IN
EMPLOYMENT BECAUSE OF SEX UNLESS SEX IS A BONA FIDE OCCUPATIONAL
REQUIREMENT.  UNLESS THE ADVERTISEMENT ITSELF SPECIFIES ONE SEX OR THE
OTHER, JOB SEEKERS SHOULD ASSUME THAT THE ADVERTISER WILL CONSIDER
APPLICANTS OF EITHER SEX IN COMPLIANCE WITH THE LAWS AGAINST
DISCRIMINATION." 

IT SUFFICES TO DISPOSE OF THIS CONTENTION BY NOTING THAT THE
COMMISSION'S COMMONSENSE RECOGNITION THAT THE TWO ARE CONNECTED IS
SUPPORTED BY EVIDENCE IN THE PRESENT RECORD.  SEE APP. 236A - 239A. 
SEE ALSO HAILES V. UNITED AIR LINES, 464 F.2D 1006, 1009 (CA5 1972). 
THE GUIDELINES ON DISCRIMINATION BECAUSE OF SEX OF THE FEDERAL EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION REFLECT A SIMILAR CONCLUSION.  SEE 29
CFR SEC. 1604.4. 

/8/  SEE ALSO JONES V. OPELIKA, 319 U.S. 103 (1943); MURDOCK V.
PENNSYLVANIA, 319 U.S. 105 (1943). 

/9/  IN RESPONSE TO QUESTIONING AT ORAL ARGUMENT, COUNSEL FOR
PITTSBURGH PRESS STATED ONLY: 

"NOW, I'M NOT PREPARED TO ANSWER WHETHER THE COMPANY MAKES MONEY ON
(WANT ADS) OR NOT.  I SUSPECT IT DOES.  THEY CHARGE FOR WANT-ADS, AND
THEY DO MAKE A LOT OF THEIR REVENUE IN THE NEWSPAPER THROUGH
ADVERTISING, OF COURSE; AND I SUSPECT IT IS PROFITABLE."  TR. OF ORAL
ARG. 10. 

/10/  IN HEAD V. NEW MEXICO BOARD, 374 U.S. 424 (1963), THIS COURT
UPHELD AN INJUNCTION PROHIBITING A NEWSPAPER AND A RADIO STATION FROM
CARRYING OPTOMETRISTS' ADVERTISEMENTS WHICH VIOLATED NEW MEXICO LAW. 
BUT BECAUSE THE ISSUE HAD NOT BEEN RAISED IN THE LOWER COURTS, THIS
COURT DID NOT CONSIDER THE APPELLANT'S FIRST AMENDMENT CHALLENGE.  ID.,
AT 432 N. 12. 

/11/  SEE ALSO NEW YORK STATE BROADCASTERS ASSN. V. UNITED STATES,
414 F.2D 990 (CA2 1969), CERT. DENIED, 396 U.S. 1061 (1970) (REFUSING
TO STRIKE DOWN A BAN ON BROADCASTS PROMOTING A LOTTERY). 

/12/  SEE NOTE, FREEDOM OF EXPRESSION IN A COMMERCIAL CONTEXT, 78
HARV. L. REV. 1191, 1195 - 1196 (1965).  CF. CAPITAL BROADCASTING CO.
V. MITCHELL, 333 F.SUPP.  582, 593 N. 42 (D. C. 1971) (WRIGHT, J.,
DISSENTING); CAMP-OF-THE-PINES, INC. V. NEW YORK TIMES CO., 184 MISC.
389, 53 N. Y. S. 2D 475 (1945). 

/13/  BRIEF FOR AMICUS CURIAE AMERICAN NEWSPAPER PUBLISHERS
ASSOCIATION 22 N. 32. 

/14/  THE DISSENT OF THE CHIEF JUSTICE ARGUES THAT PITTSBURGH PRESS
IS IN DANGER OF BEING "SUBJECT TO SUMMARY PUNISHMENT FOR CONTEMPT FOR
HAVING MADE AN 'UNLUCKY' LEGAL GUESS."  POST, AT 396 - 397.  THE
COMMISSION IS WITHOUT POWER TO PUNISH SUMMARILY FOR CONTEMPT.  WHEN IT
CONCLUDES THAT ITS ORDER HAS BEEN VIOLATED, "THE COMMISSION SHALL
CERTIFY THE CASE AND THE ENTIRE RECORD OF ITS PROCEEDINGS TO THE CITY
SOLICITOR, WHO SHALL INVOKE THE AID OF AN APPROPRIATE COURT TO SECURE
ENFORCEMENT OR COMPLIANCE WITH THE ORDER OR TO IMPOSE (A FINE OF NOT
MORE THAN $300.00) OR BOTH."  ^ 14 OF THE ORDINANCE; APPENDIX TO THE
PET. FOR CERT. 103A.  BUT, MORE FUNDAMENTALLY, IT WAS THE NEWSPAPER'S
POLICY OF ALLOWING EMPLOYERS TO PLACE ADVERTISEMENTS IN SEX-DESIGNATED
COLUMNS WITHOUT REGARD TO THE EXCEPTIONS OR EXEMPTIONS CONTAINED IN THE
ORDINANCE, NOT ITS TREATMENT OF PARTICULAR WANT ADS, WHICH WAS
CHALLENGED IN THE COMPLAINT AND WAS FOUND BY THE COMMISSION AND THE
COURTS BELOW TO BE VIOLATIVE OF THE ORDINANCE.  NOTHING IN THE MODIFIED
ORDER OR THE OPINIONS BELOW PROHIBITS THE NEWSPAPER FROM RELYING IN
GOOD FAITH ON THE REPRESENTATION OF AN ADVERTISER THAT A PARTICULAR JOB
FALLS WITHIN AN EXCEPTION TO THE ORDINANCE. 

[[DOP 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

[[HC393'(ORIGINAL DOCUMENT PAGE 393)' 

DESPITE THE COURT'S EFFORTS TO DECIDE ONLY THE NARROW QUESTION
PRESENTED IN THIS CASE, THE HOLDING REPRESENTS FOR ME, A DISTURBING
ENLARGEMENT OF THE "COMMERCIAL SPEECH" DOCTRINE, VALENTINE V.
CHRESTENSEN, 316 U.S. 52 (1942), AND A SERIOUS ENCROACHMENT ON THE
FREEDOM OF PRESS GUARANTEED BY THE FIRST AMENDMENT.  IT ALSO LAUNCHES
THE COURTS ON WHAT I PERCEIVE TO BE A TREACHEROUS PATH OF DEFINING WHAT
LAYOUT AND ORGANIZATIONAL DECISIONS OF NEWSPAPERS ARE "SUFFICIENTLY
ASSOCIATED" WITH THE "COMMERCIAL" PARTS OF THE PAPERS AS TO BE
CONSTITUTIONALLY UNPROTECTED AND THEREFORE SUBJECT TO GOVERNMENTAL
REGULATION.  ASSUMING, ARGUENDO, THAT THE FIRST AMENDMENT PERMITS THE
STATES TO PLACE RESTRICTIONS ON THE CONTENT OF COMMERCIAL
ADVERTISEMENTS, I WOULD NOT ENLARGE THAT POWER TO REACH THE LAYOUT AND
ORGANIZATIONAL DECISIONS OF A NEWSPAPER.     PITTSBURGH PRESS CLAIMS TO
HAVE DECIDED TO USE SEX-DESIGNATED COLUMN HEADINGS IN THE CLASSIFIED
ADVERTISING SECTION OF ITS NEWSPAPERS TO FACILITATE THE USE OF
CLASSIFIED ADS BY ITS READERS.  NOT ONLY IS THIS PURPOSE CONVEYED TO
THE READERS IN PLAIN TERMS, BUT THE NEWSPAPER ALSO EXPLICITLY CAUTIONS
READERS AGAINST INTERPRETING THE COLUMN HEADINGS AS INDICATIVE OF SEX
DISCRIMINATION.  THUS, BEFORE EACH COLUMN HEADING THE NEWSPAPER PRINTS
THE FOLLOWING "NOTICE TO JOB SEEKERS": 

"JOBS ARE ARRANGED UNDER MALE AND FEMALE CLASSIFICATIONS FOR THE
CONVENIENCE OF OUR READERS.  THIS IS DONE BECAUSE MOST JOBS GENERALLY
APPEAL MORE TO PERSONS OF ONE SEX THAN THE OTHER.  VARIOUS LAWS AND
ORDINANCES -- LOCAL, STATE, AND FEDERAL, PROHIBIT DISCRIMINATION IN
EMPLOYMENT BECAUSE OF SEX UNLESS SEX IS A BONA FIDE OCCUPATIONAL
REQUIREMENT.  UNLESS THE ADVERTISEMENT ITSELF SPECIFIES ONE SEX OR THE
OTHER, JOB SEEKERS SHOULD ASSUME THAT THE ADVERTISER WILL CONSIDER
APPLICANTS OF EITHER SEX IN COMPLIANCE WITH THE LAWS AGAINST
DISCRIMINATION." 

[[HC394'(ORIGINAL DOCUMENT PAGE 394)' 

TO MY WAY OF THINKING, PITTSBURGH PRESS HAS CLEARLY ACTED WITHIN ITS
PROTECTED JOURNALISTIC DISCRETION IN ADOPTING THIS ARRANGEMENT OF ITS
CLASSIFIED ADVERTISEMENTS.  ESPECIALLY IN LIGHT OF THE NEWSPAPER'S
"NOTICE TO JOB SEEKERS," IT IS UNREALISTIC FOR THE COURT TO SAY, AS IT
DOES, THAT THE SEX-DESIGNATED COLUMN HEADINGS ARE NOT "SUFFICIENTLY
DISSOCIATED)" FROM THE "WANT ADS PLACED BENEATH (THEM) TO MAKE THE
PLACEMENT SEVERABLE FOR FIRST AMENDMENT PURPOSES FROM THE WANT ADS
THEMSELVES."  /1/  ANTE, AT 388.  IN ANY EVENT, I BELIEVE THE FIRST
AMENDMENT FREEDOM OF PRESS INCLUDES THE RIGHT OF A NEWSPAPER TO ARRANGE
THE CONTENT OF ITS PAPER, WHETHER IT BE NEWS ITEMS, EDITORIALS OR
ADVERTISING, AS IT SEES FIT.  /2/ 

[[HC395'(ORIGINAL DOCUMENT PAGE 395)'  IN THE FINAL ANAYLSIS, THE
READERS ARE THE ULTIMATE "CONTROLLERS" NO MATTER WHAT EXCESSES ARE
INDULGED IN BY EVEN A FLAMBOYANT OR VENAL PRESS; THAT IT OFTEN TAKES A
LONG TIME FOR THESE INFLUENCES TO BEAR FRUIT IS INHERENT IN OUR
SYSTEM. 

THE COURT'S CONCLUSION THAT THE COMMISSION'S CEASE AND DESIST ORDER
DOES NOT CONSTITUTE A PRIOR RESTRAINT GIVES ME LITTLE REASSURANCE. 
THAT CONCLUSION IS ASSERTEDLY BASED ON THE VIEW THAT THE ORDER AFFECTS
ONLY A "CONTINUING COURSE OF REPETITIVE CONDUCT."  ANTE, AT 390.  EVEN
IF THAT WERE CORRECT, I WOULD STILL DISAGREE SINCE THE COMMISSION'S
ORDER APPEARS TO BE IN EFFECT AN OUTSTANDING INJUNCTION AGAINST CERTAIN
PUBLICATIONS -- THE ESSENCE OF PRIOR RESTRAINT.  IN ANY EVENT, MY
UNDERSTANDING OF THE EFFECTS OF THE COMMISSION'S ORDER DIFFERS FROM
THAT OF THE COURT.  AS NOTED IN THE COURT'S OPINION, THE COMMONWEALTH
COURT NARROWED THE INJUNCTION TO PERMIT PITTSBURGH PRESS TO USE SEX
DESIGNATED COLUMN HEADINGS FOR WANT ADS DEALING WITH JOBS EXEMPT UNDER
THE ORDINANCE.  THE ORDINANCE DOES NOT APPLY, FOR EXAMPLE, 

"TO EMPLOYERS OF FEWER THAN FIVE PERSONS, TO EMPLOYERS OUTSIDE THE
CITY OF PITTSBURGH, OR TO RELIGIOUS, FRATERNAL, CHARITABLE OR SECTARIAN
ORGANIZATIONS, NOR DOES IT APPLY TO EMPLOYMENT IN DOMESTIC SERVICE OR
IN JOBS FOR WHICH THE COMMISSION HAS CERTIFIED A BONA FIDE OCCUPATIONAL
EXCEPTION."  ANTE, AT 380. 

IF PITTSBURGH PRESS CHOOSES TO CONTINUE USING ITS COLUMN HEADINGS
FOR ADVERTISEMENTS SUBMITTED FOR PUBLICATION BY EXEMPTED EMPLOYERS, IT
MAY WELL FACE DIFFICULT LEGAL QUESTIONS IN DECIDING WHETHER A
PARTICULAR EMPLOYER IS OR IS NOT SUBJECT TO THE ORDINANCE. 

[[HC396'(ORIGINAL DOCUMENT PAGE 396)'  IF IT MAKES THE WRONG
DECISION AND INCLUDES A COVERED ADVERTISEMENT UNDER A SEX-DESIGNATED
COLUMN HEADING, IT RUNS THE RISK OF BEING HELD IN SUMMARY CONTEMPT FOR
VIOLATING THE TERMS OF THE ORDER.  /3/ 

IN PRACTICAL EFFECT, THEREFORE, THE COMMISSION'S ORDER IN THIS AREA
MAY HAVE THE SAME INHIBITING EFFECT AS THE INJUCTION IN NEAR V.
MINNESOTA, 283 U.S. 697 (1931), WHICH PERMANENTLY ENJOINED THE
PUBLISHERS OF A NEWSPAPER FROM PRINTING A "MALICIOUS, SCANDALOUS OR
DEFAMATORY NEWSPAPER, AS DEFINED BY LAW."  ID., AT 706.  WE STRUCK DOWN
THE INJUNCTION IN NEAR AS A PRIOR RESTRAINT.  IN 1971, WE REAFFIRMED
THE PRINCIPLE OF PRESUMPTIVE UNCONSTITUTIONALITY OF PRIOR RESTRAINT IN
ORGANIZATION FOR A BETTER AUSTIN V. KEEFE, 402 U.S. 415 (1971). 
INDEED, IN NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713 (1971),
EVERY MEMBER OF THE COURT, TACITLY OR EXPLICITLY, ACCEPTED THE NEAR AND
KEEFE CONDEMNATION OF PRIOR RESTRAINT AS PRESUMPTIVELY
UNCONSTITUTIONAL.  IN THIS CASE, THE RESPONDENTS HAVE, IN MY VIEW,
FAILED TO CARRY THEIR BURDEN.  I WOULD THEREFORE HOLD THE COMMISSION'S
ORDER TO BE IMPERMISSIBLE PRIOR RESTRAINT.  AT THE VERY LEAST, WE OUGHT
TO MAKE CLEAR THAT A NEWSPAPER MAY NOT BE SUBJECT TO SUMMARY PUNISHMENT
FOR CONTEMPT FOR HAVING MADE AN "UNLUCKY" LEGAL GUESS ON A PARTICULAR
ADVERTISEMENT OR FOR HAVING FAILED TO SECURE ADVANCE COMMISSION
APPROVAL OF A DECISION TO RUN AN ADVERTISEMENT UNDER A SEX-DESIGNATED
COLUMN. 

[[HC397'(ORIGINAL DOCUMENT PAGE 397)' 

[[DFN 

/1/  THE COURT AND THE OPINIONS UNDER REVIEW PLACE GREAT STRESS ON
THE FINDING OF THE PITTSBURGH COMMISSION ON HUMAN RELATIONS THAT THE
PITTSBURGH PRESS "PERMITS THE ADVERTISER TO SELECT THE COLUMN WITHIN
WHICH ITS ADVERTISEMENT IS TO BE INSERTED."  THAT FINDING, HOWEVER,
DOES NOT DISAPROVE PITTSBURGH PRESS' CLAIM THAT IT USES COLUMN HEADINGS
FOR THE CONVENIENCE OF ITS READERS.  IN ANY EVENT, THE ORDER UNDER
REVIEW, AS THE COURT ACKNOWLEDGES, "DOES NOT ALLOW PITTSBURGH PRESS TO
SUBSTITUTE A POLICY UNDER WHICH IT WOULD MAKE AN INDEPENDENT DECISION
REGARDING PLACEMENT IN SEX-DESIGNATED COLUMNS."  ANTE, AT 384.  THUS,
EVEN IF THE NEWSPAPER BECAME ACTIVELY INVOLVED IN SELECTING THE
APPROPRIATE COLUMN FOR EACH ADVERTISEMENT, PRESUMABLY THE COMMISSION'S
ORDER WOULD STILL PROHIBIT PITTSBURGH PRESS FROM USING THE COLUMN
HEADINGS. 

/2/  THERE WOULD BE TIME ENOUGH TO CONSIDER WHETHER THIS PRINCIPLE
WOULD APPLY TO THE SITUATION HYPOTHESIZED BY THE COURT, FOR EXAMPLE,
WHERE A NEWSPAPER GIVES "NOTICE" OF NARCOTICS TRANSACTIONS BY PLACING
CERTAIN ADVERTISEMENTS UNDER A "NARCOTICS FOR SALE"  CAPTION.  FOR NOW,
I NEED ONLY STATE THAT THE TWO SITUATIONS STRIKE ME AS BEING ENTIRELY
DIFFERENT.  WE DO NOT HAVE HERE, IN SHORT, SUCH A BLATANT INVOLVEMENT
BY A NEWSPAPER IN A CRIMINAL TRANSACTION. 

/3/  THE COURT'S STATEMENT THAT THE"COMMISSION IS WITHOUT POWER TO
PUNISH SUMMARILY FOR CONTEMPT," ANTE, AT 390 N. 14, IS HARDLY
REASSURING TO ME IN A FIRST AMENDMENT SETTING.  WE ARE STILL LEFT WITH
NO ASSURANCE THAT AN ENFORCEMENT ACTION INITIATED AT THE REQUEST OF THE
COMMISSION WILL NOT BE SUMMARY IN NATURE.  IT IS HELPFUL THAT THE COURT
EXPRESSES A CAVEAT ON THIS SCORE.  HOWEVER, THE WEIGHTY PRESUMPTION OF
UNCONSTITUTIONALITY OF PRIOR RESTRAINT OF THE PRESS SEEMS TO BE GIVEN
LESS REGARD THAN WE HAVE TRADITIONALLY ACCORDED IT. 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHILE I JOIN THE DISSENT OF MR. JUSTICE STEWART, I ADD A FEW WORDS. 
AS HE SAYS, THE PRESS, LIKE ANY OTHER BUSINESS, CAN BE REGULATED ON
BUSINESS AND ECONOMIC MATTERS.  OUR LEADING CASE ON THAT SCORE IS
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, WHICH HOLDS THAT A NEWS
GATHERING AGENCY MAY BE MADE ACCOUNTABLE FOR VIOLATIONS OF THE
ANTITRUST LAWS.  BY LIKE TOKEN, A NEWSPAPER, PERIODICAL, OR TV OR RADIO
BROADCASTER MAY BE SUBJECTED TO LABOR RELATIONS LAWS.  AND THAT
REGULATION COULD CONSTITUTIONALLY EXTEND TO THE IMPOSITION OF PENALTIES
OR OTHER SANCTIONS IF ANY UNIT OF THE PRESS VIOLATED LAWS THAT BARRED
DISCRIMINATION IN EMPLOYMENT BASED ON RACE OR RELIGION OR SEX. 

PENNSYLVANIA HAS A REGULATORY REGIME DESIGNED TO ELIMINATE
DISCRIMINATION IN EMPLOYMENT BASED ON SEX; AND THE COMMISSION IN CHARGE
OF THAT PROGRAM ISSUES CEASE-AND-DESIST ORDERS AGAINST VIOLATORS. 
THERE IS NO DOUBT THAT PITTSBURGH PRESS WOULD HAVE NO CONSTITUTIONAL
DEFENSE AGAINST SUCH A CEASE-AND-DESIST ORDER ISSUED AGAINST IT FOR
DISCRIMINATORY EMPLOYMENT PRACTICES. 

BUT I BELIEVE THAT PITTSBURGH PRESS BY REASON OF THE FIRST AMENDMENT
MAY PUBLISH WHAT IT PLEASES ABOUT ANY LAW WITHOUT CENSORSHIP OR
RESTRAINT BY GOVERNMENT.  THE FIRST AMENDMENT DOES NOT REQUIRE THE
PRESS TO REFLECT ANY IDEOLOGICAL OR POLITICAL CREED REFLECTING THE
DOMINANT PHILOSOPHY, WHETHER TRANSIENT OR FIXED.  IT MAY USE ITS PAGES
AND FACILITIES TO DENOUNCE A LAW AND URGE ITS REPEAL OR, AT THE OTHER
EXTREME, DENOUNCE THOSE WHO DO NOT RESPECT ITS LETTER AND SPIRIT. 

COMMERCIAL MATTER, AS DISTINGUISHED FROM NEWS, WAS HELD IN VALENTINE
V. CHRESTENSEN, 316 U.S. 52, NOT TO BE SUBJECT TO FIRST AMENDMENT
PROTECTION. 

[[HC398'(ORIGINAL DOCUMENT PAGE 398)'  MY VIEWS ON THAT ISSUE HAVE
CHANGED SINCE 1942, THE YEAR VALENTINE WAS DECIDED.  AS I HAVE STATED
ON EARLIER OCCASIONS, I BELIEVE THAT COMMERCIAL MATERIALS ALSO HAVE
FIRST AMENDMENT PROTECTION.  IF EMPIRE INDUSTRIES LTD., DOING BUSINESS
IN PENNSYLVANIA, WANTED TO RUN FULL-PAGE ADVERTISEMENTS DENOUNCING OR
CRITICIZING THIS PENNSYLVANIA LAW, I SEE NO WAY IN WHICH PITTSBURGH
PRESS COULD BE CENSORED OR PUNISHED FOR RUNNING THE AD, ANY MORE THAN A
PERSON COULD BE PUNISHED FOR UTTERING THE CONTENT OF THE AD IN A PUBLIC
ADDRESS IN INDEPENDENCE HALL.  THE PROS AND CONS OF LEGISLATIVE
ENACTMENTS ARE CLEARLY DISCUSSION OR DIALOGUE THAT IS HIGHLY HONORED IN
OUR FIRST AMENDMENT TRADITIONS. 

THE WANT ADS WHICH GAVE RISE TO THE PRESENT LITIGATION EXPRESS THE
PREFERENCE OF ONE EMPLOYER FOR THE KIND OF HELP HE NEEDS.  IF HE
CARRIED THROUGH TO HIRING AND FIRING EMPLOYEES ON THE BASIS OF THOSE
PREFERENCES, THE STATE COMMISSION MIGHT ISSUE A REMEDIAL ORDER AGAINST
HIM, IF DISCRIMINATION IN EMPLOYMENT WAS SHOWN.  YET HE COULD DENOUNCE
THAT ACTION WITH IMPUNITY AND PITTSBURGH PRESS COULD PUBLISH HIS
DENUNCIATION OR WRITE AN EDITORIAL TAKING HIS SIDE ALSO WITH IMPUNITY. 

WHERE THERE IS A VALID LAW, THE GOVERNMENT CAN ENFORCE IT.  BUT THERE
CAN BE NO VALID LAW CENSORING THE PRESS OR PUNISHING IT FOR PUBLISHING
ITS VIEWS OR THE VIEWS OF SUBSCRIBERS OR CUSTOMERS WHO EXPRESS THEIR
IDEAS IN LETTERS TO THE EDITOR OR IN WANT ADS OR OTHER COMMERCIAL
SPACE.  THERE COMES A TIME, OF COURSE, WHEN SPEECH AND ACTION ARE SO
CLOSELY BRIGADED THAT THEY ARE REALLY ONE.  FALSELY SHOUTING "FIRE" IN
A THEATER, THE EXAMPLE GIVEN BY MR. JUSTICE HOLMES, SCHENCK V. UNITED
STATES, 249 U.S. 47, 52, IS ONE EXAMPLE.  GIBONEY V. EMPIRE STORAGE
CO., 336 U.S. 490, WRITTEN BY MR. JUSTICE BLACK, IS ANOTHER.  THERE ARE
HERE, HOWEVER, NO SUCH UNUSUAL CIRCUMSTANCES. 

AS MR. JUSTICE STEWART SAYS, WE HAVE WITNESSED A GROWING TENDENCY TO
CUT DOWN THE LITERAL REQUIREMENTS OF FIRST AMENDMENT FREEDOMS SO THAT
THOSE IN POWER CAN SQUELCH SOMEONE OUT OF STEP. 

 HC399'(ORIGINAL DOCUMENT PAGE 399)'  HISTORICALLY, THE MISCREANT
HAS USUALLY BEEN AN UNPOPULAR MINORITY.  TODAY IT IS A NEWSPAPER THAT
DOES NOT BOW TO THE SPREADING BUREAUCRACY THAT PROMISES TO ENGULF US.
IT MAY BE THAT WE HAVE BECOME SO STEREOTYPED AS TO HAVE EARNED THAT
FATE.  BUT THE FIRST AMENDMENT PRESUPPOSES FREE-WHEELING, INDEPENDENT
PEOPLE WHOSE VAGARIES INCLUDE IDEAS SPREAD ACROSS THE ENTIRE SPECTRUM
OF THOUGHTS AND BELIEFS.  /1/  I WOULD LET ANY EXPRESSION IN THAT BROAD
SRECTRUM FLOURISH, UNRESTRAINED BY GOVERNMENT, UNLESS IT WAS AN
INTEGRAL PART OF ACTION -- THE ONLY POINT WHICH IN THE JEFFERSONIAN
PHILOSOPHY MARKS THE PERMISSIBLE POINT OF GOVERNMENTAL INTRUSION. 

I THEREFORE DISSENT FROM AFFIRMANCE OF THIS JUDGMENT. 

[[DFN 

/1/  AS ALEXANDER MEIKLEJOHN HAS STATED:  "THE FIRST AMENDMENT WAS
NOT WRITTEN PRIMARILY FOR THE PROTECTION OF THOSE INTELLECTUAL
ARISTROCRATS WHO PURSUE KNOWLEDGE SOLELY FOR THE FUN OF THE GAME, WHOSE
SEARCH FOR TRUTH EXPRESSES NOTHING MORE THAN A PRIVATE INTELLECTUAL
CURIOSITY OR AN EQUALLY PRIVATE DELIGHT AND PRIDE IN THE MENTAL
ACHIEVEMENT.  IT WAS WRITTEN TO CLEAR THE WAY FOR THINKING WHICH SERVES
THE GENERAL WELFARE.  IT OFFERS DEFENSE TO MEN WHO PLAN AND ADVOCATE
AND INCITE TOWARD CORPORATE ACTION FOR THE COMMON GOOD.  ON BEHALF OF
SUCH MEN IT TELLS US THAT EVERY PLAN OF ACTION MUST HAVE A HEARING,
EVERY RELEVANT IDEA OF FACT OR VALUE MUST HAVE FULL CONSIDERATION,
WHATEVER MAY BE THE DANGERS WHICH THAT ACTIVITY INVOLVES.  IT MAKES NO
DIFFERENCE WHETHER A MAN IS ADVOCATING CONSCRIPTION OR OPPOSING IT,
SPEAKING IN FAVOR OF A WAR OR AGAINST IT, DEFENDING DEMOCRACY OR
ATTACKING IT, PLANNING A COMMUNIST RECONSTRUCTION OF OUR ECONOMY OR
CRITICISING IT.  SO LONG AS HIS ACTIVE WORDS ARE THOSE OF PARTICIPATION
IN PUBLIC DISCUSSION AND PUBLIC DECISION OF MATTERS OF PUBLIC POLICY,
THE FREEDOM OF THOSE WORDS MAY NOT BE ABRIDGED.  THAT FREEDOM IS THE
BASIC POSTULATE OF A SOCIETY WHICH IS GOVERNED BY THE VOTES OF ITS
CITIZENS."  FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 45 - 46
(1948). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

I HAVE NO DOUBT THAT IT IS WITHIN THE POLICE POWER OF THE CITY OF
PITTSBURGH TO PROHIBIT DISCRIMINATION IN PRIVATE EMPLOYMENT ON THE
BASIS OF RACE, COLOR, RELIGION, ANCESTRY, NATIONAL ORIGIN, PLACE OF
BIRTH, OR SEX.  I DO NOT DOUBT, EITHER, THAT IN ENFORCING SUCH A POLICY
THE CITY MAY PROHIBIT EMPLOYERS FROM INDICATING ANY SUCH DISCRIMINATION
WHEN THEY MAKE KNOWN THE AVAILABILITY OF EMPLOYMENT OPPORTUNITIES.  BUT
NEITHER OF THOSE PROPOSITIONS RESOLVES THE QUESTION BEFORE US IN THIS
CASE.     THAT QUESTION, TO PUT IT SIMPLY, IS WHETHER ANY GOVERNMENT
AGENCY--LOCAL, STATE, OR FEDERAL--CAN TELL A NEWSPAPER IN ADVANCE WHAT
IT CAN PRINT AND WHAT IT CANNOT.  UNDER THE FIRST AND FOURTEENTH
AMENDMENTS I THINK NO GOVERNMENT AGENCY IN THIS NATION HAS ANY SUCH
POWER.  /1/ 

IT IS TRUE, OF COURSE, AS THE COURT POINTS OUT, THAT THE PUBLISHER
OF A NEWSPAPER IS AMENABLE TO CIVIL AND CRIMINAL LAWS OF GENERAL
APPLICABILITY.  FOR EXAMPLE, A NEWSPAPER PUBLISHER IS SUBJECT TO
NONDISCRIMINATORY GENERAL TAXATION,  /2/  AND TO RESTRICTIONS IMPOSED
BY THE NATIONAL LABOR RELATIONS ACT, /3/  THE FAIR LABOR STANDARDS ACT,
/4/  AND THE SHERMAN ACT.  /5/  IN SHORT, AS BUSINESSMAN OR EMPLOYER, A
NEWSPAPER PUBLISHER IS NOT EXEMPT FROM LAWS AFFECTING BUSINESSMEN AND
EMPLOYERS GENERALLY. 

[[HC401'(ORIGINAL DOCUMENT PAGE 401)'  ACCORIDNGLY, I ASSUME THAT
THE PITTSBURGH PRESS CO., AS AN EMPLOYER, CAN BE AND IS COMPLETELY
WITHIN THE COVERAGE OF THE HUMAN RELATIONS ORDINANCE OF THE CITY OF
PITTSBURGH. 

BUT WHAT THE COURT APPROVES TODAY IS WHOLLY DIFFERENT.  IT APPROVES A
GOVERNMENT ORDER DICTATING TO A PUBLISHER IN ADVANCE HOW HE MUST
ARRANGE THE LAYOUT OF PAGES IN HIS NEWSPAPER. 

NOTHING IN VALENTINE V. CHRESTENSEN, 316 U.S. 52, REMOTELY SUPPORTS
THE COURT'S DECISION.  THAT CASE INVOLVED THE VALIDITY OF A LOCAL
SANITARY ORDINANCE THAT PROHIBITED THE DISTRIBUTION IN THE STREETS OF
"COMMERCIAL AND BUSINESS ADVERTISING MATTER."  THE COURT HELD THAT THE
ORDINANCE COULD BE APPLIED TO THE OWNER OF A COMMERCIAL TOURIST
ATTRACTION WHO WANTED TO DRUM UP TRADE BY PASSING OUT HANDBILLS IN THE
STREETS.  THE COURT SAID IT WAS "CLEAR THAT THE CONSTITUTION IMPOSES NO
SUCH RESTRAINT ON GOVERNMENT AS RESPECTS PURELY COMMERCIAL
ADVERTISING.  WHETHER, AND TO WHAT EXTENT, ONE MAY PROMOTE OR PURSUE A
GAINFUL OCCUPATION IN THE STREETS, TO WHAT EXTENT SUCH ACTIVITY SHALL
BE ADJUDGED A DEROGATION OF THE PUBLIC RIGHT OF USER, ARE MATTERS FOR
LEGISLATIVE JUDGMENT.  ID., AT 54.  WHATEVER VALIDITY THE CHRESTENSEN
CASE MAY STILL RETAIN WHEN LIMITED TO ITS OWN FACTS, /6/  IT CERTAINLY
DOES NOT STAND FOR THE PROPOSITION THAT THE ADVERTISING PAGES OF A
NEWSPAPER ARE OUTSIDE THE PROTECTION GIVEN THE NEWSPAPER BY THE FIRST
AND FOURTEENTH AMENDMENTS.  ANY POSSIBLE DOUBT ON THAT SCORE WAS SURELY
LAID TO REST IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254.  /7/ 

SO FAR AS I KNOW, THIS IS THE FIRST CASE IN THIS OR ANY OTHER
AMERICAN COURT THAT PERMITS A GOVERNMENT AGENCY TO ENTER A COMPOSING
ROOM OF A NEWSPAPER AND DICTATE TO THE PUBLISHER THE LAYOUT AND MAKEUP
OF THE NEWSPAPER'S PAGES. 

[[HC402'(ORIGINAL DOCUMENT PAGE 402)'  THIS IS THE FIRST SUCH CASE,
BUT I FEAR IT MAY NOT BE THE LAST.  THE CAMEL'S NOSE IS IN THE TENT. 
"IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS MILDEST AND LEAST
REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET
THEIR FIRST FOOTING THAT WAY.  . . ."  BOYD V. UNITED STATES, 116 U.S.
616, 635. 

SO LONG AS MEMBERS OF THIS COURT VIEW THE FIRST AMENDMENT AS NO MORE
THAN A SET OF "VALUES" TO BE BALANCED AGAINST OTHER "VALUES,"  THAT
AMENDMENT WILL REMAIN IN GRAVE JEOPARDY.  SEE PARIS ADULT THEATRE I V.
SLATON, ANTE, P. 49.  (FIRST AND FOURTEENTH AMENDMENT PROTECTIONS
OUTWEIGHED BY PUBLIC INTEREST IN "QUALITY OF LIFE," "TOTAL COMMUNITY
ENVIRONMENT," "TONE OF COMMERCE," "PUBLIC SAFETY"); BRANZBURG V. HAYES,
408 U.S. 665 (FIRST AMENDMENT CLAIM ASSERTED BY NEWSMAN TO MAINTAIN
CONFIDENTIAL RELATIONSHIP WITH HIS SOURCES OUTWEIGHED BY OBLIGATION TO
GIVE INFORMATION TO GRAND JURY); NEW YORK TIMES CO. V. UNITED STATES,
403 U.S. 713, 748 (BURGER, C. J., DISSENTING) (FIRST AMENDMENT
OUTWEIGHED BY JUDICIAL PROBLEMS CAUSED BY "UNSEEMLY HASTE"); COLUMBIA
BROADCASTING SYSTEM, INC. V. DEMOCRATIC NATIONAL COMMITTEE, 412 U.S.
94, 199 (BRENNAN, J., DISSENTING) (BALANCING OF "THE COMPETING FIRST
AMENDMENT INTERESTS"). 

[[HC403'(ORIGINAL DOCUMENT PAGE 403)' 

IT IS SAID THAT THE GOAL OF THE PITTSBURGH ORDINANCE IS A LAUDABLE
ONE, AND SO INDEED IT IS.  BUT, IN THE WORDS OF MR. JUSTICE BRANDEIS,
"EXPERIENCE SHOULD TEACH US TO BE MOST ON OUR GUARD TO PROTECT LIBERTY
WHEN THE GOVERNMENT'S PURPOSES ARE BENEFICENT.  MEN BORN TO FREEDOM ARE
NATURALLY ALERT TO REPEL INVASION OF THEIR LIBERTY BY EVIL-MINDED
RULERS.  THE GREATEST DANGERS TO LIBERTY LURK IN INSIDIOUS ENCROACHMENT
BY MEN OF ZEAL, WELL-MEANING BUT WITHOUT UNDERSTANDING."  OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 479 (DISSENTING OPINION).  AND, AS MR.
JUSTICE BLACK ONCE POINTED OUT, "THE MOTIVES BEHIND THE STATE LAW MAY
HAVE BEEN TO DO GOOD.  BUT . . . (HISTORY INDICATES THAT URGES TO DO
GOOD HAVE LED TO THE BURNING OF BOOKS AND EVEN TO THE BURNING OF
'WITCHES.'"  BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 274 (DISSENTING
OPINION). 

THE COURT TODAY HOLDS THAT A GOVERNMENT AGENCY CAN FORCE A NEWSPAPER
PUBLISHER TO PRINT HIS CLASSIFIED ADVERTISING PAGES IN A CERTAIN WAY IN
ORDER TO CARRY OUT GOVERNMENTAL POLICY.  AFTER THIS DECISION, I SEE NO
REASON WHY GOVERNMENT CANNOT FORCE A NEWSPAPER PUBLISHER TO CONFORM IN
THE SAME WAY IN ORDER TO ACHIEVE OTHER GOALS THOUGHT SOCIALLY
DESIRABLE.  AND IF GOVERNMENT CAN DICTATE THE LAYOUT OF A NEWSPAPER'S
CLASSIFIED ADVERTISING PAGES TODAY, WHAT IS THERE TO PREVENT IT FROM
DICTATING THE LAYOUT OF THE NEWS PAGES TOMORROW? 

THOSE WHO THINK THE FIRST AMENDMENT CAN AND SHOULD BE SUBORDINATED
TO OTHER SOCIALLY DESIRABLE INTERESTS WILL HAIL TODAY'S DECISION.  BUT
I FIND IT FRIGHTENING.  FOR I BELIEVE THE CONSTITUTIONAL GUARANTEE OF A
FREE PRESS IS MORE THAN PRECATORY.  I BELIEVE IT IS A CLEAR COMMAND
THAT GOVERNMENT MUST NEVER BE ALLOWED TO LAY ITS HEAVY EDITORIAL HAND
ON ANY NEWSPAPER IN THIS COUNTRY. 

[[DFN 

/1/  I PUT TO ONE SIDE THE QUESTION OF GOVERNMENTAL POWER TO PREVENT
PUBLICATION OF INFORMATION THAT WOULD CLEARLY IMPERIL THE MILITARY
DEFENSE OF OUR NATION, E. G., "THE PUBLICATION OF THE SAILING DATES OF
TRANSPORTS OR THE NUMBER AND LOCATION OF TROOPS."  NEAR V. MINNESOTA,
283 U.S. 697, 716. 

/2/  SEE GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 250; MURDOCK
V. PENNSYLVANIA, 319 U.S. 105, 112. 

/3/  SEE ASSOCIATED PRESS V. NLRB, 301 U.S. 103, 132 - 133. 

/4/  SEE OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186, 192
- 193; MABEE V. WHITE PLAINS PUBLISHING CO., 327 U.S. 178. 

/5/  SEE ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1; LORAIN
JOURNAL CO. V. UNITED STATES, 342 U.S. 143, 155 - 157; CITIZEN
PUBLISHING CO. V. UNITED STATES, 394 U.S. 131, 139. 

/6/  MR. JUSTICE DOUGLAS HAS SAID THAT "(THE (CHRESTENSEN) RULING
WAS CASUAL, ALMOST OFFHAND.  AND IT HAS NOT SURVIVED REFLECTION." 
CAMMARANO V. UNITED STATES, 358 U.S. 498, 514 (CONCURRING OPINION). 

/7/  THE COURT ACKNOWLEDGES, AS IT MUST, THAT WHAT IT APPROVES TODAY
IS NOT A RESTRICTION ON A PURELY COMMERCIAL ADVERTISEMENT BUT ON THE
EDITORIAL JUDGMENT OF THE NEWSPAPER, FOR "THE NEWSPAPER DOES MAKE A
JUDGMENT WHETHER OR NOT TO ALLOW THE ADVERTISER TO SELECT THE COLUMN." 
ANTE, AT 386.  THE EFFECT OF THE LOCAL ORDINANCE AND THE COURT ORDER IS
TO AFFECT THE MAKEUP OF THE HELP-WANTED SECTION OF THE NEWSPAPER, AND
TO PRECLUDE PITTSBURGH PRESS FROM PLACING ADVERTISEMENTS IN SEX
DESIGNATED COLUMNS.  THE COURT JUSTIFIES THIS RESTRICTION ON THE
NEWSPAPER'S EDITORIAL JUDGMENT BY ARGUING THAT THEY HAD TAKEN ON THE
"CHARACTER OF THE ADVERTISEMENT" SO THAT THE COMBINATION CONVEYED "AN
INTEGRATED COMMERCIAL STATEMENT."  BUT THE STARK FACT REMAINS THAT THE
RESTRICTION HERE WAS PLACED ON THE EDITORIAL JUDGMENT OF THE NEWSPAPER,
NOT THE ADVERTISEMENT. 

[[DOP 

MR. JUSTICE BLACKMUN, DISSENTING. 

[[HC404'(ORIGINAL DOCUMENT PAGE 404)' 

I DISSENT SUBSTANTIALLY FOR THE REASONS STATED BY MR. JUSTICE
STEWART IN HIS OPINION.  BUT I DO NOT SUBSCRIBE TO THE STATEMENTS
CONTAINED IN THAT PARAGRAPH OF THIS OPINION WHICH BEGINS ON P. 402 AND
ENDS OF P. 403. 

CHARLES R. VOLK ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS RALPH T. DESTEFANO. 

EUGENE B. STRASSBURGER III ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS PITTSBURGH COMMISSION ON HUMAN RELATIONS ET AL. MARJORIE H.
MATSON ARGUED THE CAUSE FOR RESPONDENT NATIONAL ORGANIZATION OF WOMEN,
INC. WITH HER ON THE BRIEF WAS SYLVIA ROBERTS. 

ARTHUR B. HANSON AND RALPH N. ALBRIGHT, JR., FILED A BRIEF FOR THE
AMERICAN NEWSPAPER PUBLISHERS ASSN. AS AMICUS CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL POTTINGER, DEPUTY
SOLICITOR GENERAL WALLACE, HARRIET S. SHAPIRO, JOHN C. HOYLE, JULIA P.
COOPER, AND BEATRICE ROSENBERG FOR THE UNITED STATES; BY EVELLE J.
YOUNGER, ATTORNEY GENERAL OF CALIFORNIA, ROBERH H. O'BRIEN AND CARL
BORONKAY, ASSISTANT ATTORNEYS GENERAL, AND JUDITH T. ASHMANN, DEPUTY
ATTORNEY GENERAL, FOR THE CALIFORNIA FAIR EMPLOYMENT PRACTICE
COMMISSION; BY GEORGE F. KUGLER, JR., ATTORNEY GENERAL, STEPHEN
SKILLMAN, ASSISTANT ATTORNEY GENERAL, AND DAVID S. LITWIN, DEPUTY
ATTORNEY GENERAL, FOR THE STATE OF NEW JERSEY; BY ISRAEL PACKEL,
ATTORNEY GENERAL OF PENNSYLVANIA, AND ROY YAFFE AND MICHAEL L. GOLDEN,
JR., ASSISTANT ATTORNEYS GENERAL, FOR THE PENNSYLVANIA COMMISSION ON
THE STATUS OF WOMEN ET AL.; BY NORMAN DORSEN, RUTH BADER GINSBURG, AND
JEFFREY A. KAY FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL.; BY
PHINEAS INDRITZ, ELIZABETH BOYER, MARGUERITE RAWALT, MARTHA W.
GRIFFITHS, AND MARGARET M. HECKLER FOR THE AMERICAN VETERANS COMMITTEE,
INC., ET AL.; BY PHILIP J. TIERNEY FOR THE INTERNATIONAL ASSOCIATION OF
OFFICIAL HUMAN RIGHTS AGENCIES; AND BY RITA PAGE REUSS AND JANE M.
PICKER FOR THE WOMEN'S LAW FUND, INC.
..END :










NEW YORK DEPARTMENT OF SOCIAL SERVICES V. DUBLINO 413 U.S. 405 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

           DISTRICT OF NEW YORK 

     NO. 72 - 792.  ARGUED APRIL 17 - 18, 1973--DECIDED JUNE 21,
1973  /1/  ; 348 F.SUPP.  290, /     REVERSED AND REMANDED.  /1/
TOGETHER WITH NO. 72 - 802, ONONDAGA COUNTY DEPARTMENT OF SOCIAL

 SERVICES ET AL. V. DUBLINO ET AL., ALSO ON APPEAL FROM THE SAME
COURT. 


    THE 1967 AMENDMENTS TO THE SOCIAL SECURITY ACT INCLUDED THE

  FEDERAL WORK INCENTIVE PROGRAM (WIN), DESIGNED TO HELP

  INDIVIDUALS ON WELFARE BECOME WAGE-EARNING MEMBERS OF SOCIETY. 

  THE STATES WERE REQUIRED TO INCORPORATE THIS PROGRAM INTO THEIR

  AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM, TO

  PROVIDE THAT CERTAIN "EMPLOYABLE"  INDIVIDUALS, AS A CONDITION

  FOR RECEIVING AID, SHALL REGISTER FOR MANPOWER SERVICES,

  TRAINING, AND EMPLOYMENT.  IN 1971 NEW YORK ENACTED PROVISIONS OF

  ITS SOCIAL WELFARE LAW, COMMONLY REFERRED TO AS THE NEW YORK WORK

  RULES, WHICH SIMILARLY REQUIRED COOPERATION BY EMPLOYABLE

  INDIVIDUALS TO CONTINUE TO RECEIVE ASSISTANCE.  APPELLEES, NEW

  YORK PUBLIC ASSISTANCE RECIPIENTS SUBJECT TO THE WORK RULES,

  CHALLENGE THOSE RULES AS HAVING BEEN PRE-EMPTED BY THE WIN

  PROVISIONS OF THE SOCIAL SECURITY ACT.  THE THREE-JUDGE DISTRICT

  COURT RULED THAT "FOR THOSE IN THE AFDC PROGRAM, WIN PRE-EMPTS

  THE NEW YORK WORK RULES."  HELD: 

     1.  THE WIN PROVISIONS OF THE SOCIAL SECURITY ACT DO NOT

  PRE-EMPT THE NEW YORK WORK RULES OF THE NEW YORK SOCIAL WELFARE

  LAW.  PP. 412 - 423. 

     (A) THERE IS NO SUBSTANTIAL EVIDENCE THAT CONGRESS INTENDED,

  EITHER EXPRESSLY OR IMPLIEDLY, TO PRE-EMPT STATE WORK PROGRAMS. 

MORE IS REQUIRED THAN THE APPARENT COMPREHENSIVENESS OF THE WIN

  LEGISLATION TO SHOW THE "CLEAR MANIFESTATION OF (CONGRESSIONAL)

  INTENTION" THAT MUST EXIST BEFORE A FEDERAL STATUTE IS HELD "TO

  SUPERSEDE THE EXERCISE" OF STATE ACTION.  SCHWARTZ V. TEXAS, 344

  U.S. 199, 202 - 203.  PP. 412 - 417. 

     (B) AFFIRMATIVE EVIDENCE EXISTS TO ESTABLISH CONGRESS'

  INTENTION NOT TO TERMINATE ALL STATE WORK PROGRAMS AND FORECLOSE

  FUTURE STATE COOPERATIVE PROGRAMS: WIN IS LIMITED IN SCOPE AND

  APPLICATION; IT IS A PARTIAL PROGRAM, WITH STATE SUPPLEMENTATION,

  AS ILLUSTRATED BY NEW YORK; AND THE DEPARTMENT OF HEALTH,

  EDUCATION, AND WELFARE, RESPONSIBLE FOR ADMINISTERING THE SOCIAL

  SECURITY ACT, HAS NEVER CONSIDERED WIN AS PRE-EMPTIVE.  PP. 417 -

 421. 

[[HC406'(ORIGINAL DOCUMENT PAGE 406)' 

(C) WHERE COORDINATE STATE AND FEDERAL EFFORTS EXIST WITHIN A

  COMPLEMENTARY ADMINISTRATIVE FRAMEWORK IN THE PURSUIT OF COMMON

  PURPOSES, AS HERE, THE CASE FOR FEDERAL PRE-EMPTION IS NOT

  PERSUASIVE.  PP. 421 - 422. 

     2.  THE QUESTION OF WHETHER SOME PARTICULAR SECTIONS OF THE

  WORK RULES MIGHT CONTRAVENE THE SPECIFIC PROVISIONS OF THE SOCIAL

  SECURITY ACT IS NOT RESOLVED, BUT IS REMANDED TO THE DISTRICT

  COURT FOR CONSIDERATION.  PP. 422 - 423. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED. 
MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED,
POST, P. 423. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER THE SOCIAL SECURITY ACT OF 1935, 49
STAT. 620, AS AMENDED, BARS A STATE FROM INDEPENDENTLY REQUIRING
INDIVIDUALS TO ACCEPT EMPLOYMENT AS A CONDITION FOR RECIEPT OF
FEDERALLY FUNDED AID TO FAMILIES WITH DEPENDENT CHILDREN. 

[[HC407'(ORIGINAL DOCUMENT PAGE 407)'  MORE PRECISELY, THE ISSUE IS
WHETHER THAT PART OF THE SOCIAL SECURITY ACT KNOWN AS THE FEDERAL WORK
INCENTIVE PROGRAM (WIN) PRE-EMPTS THE PROVISIONS OF THE NEW YORK SOCIAL
WELFARE LAW COMMONLY REFERRED TO AS THE NEW YORK WORK RULES.  A BRIEF
DESCRIPTION OF BOTH THE STATE AND FEDERAL PROGRAMS WILL BE NECESSARY. 

THE WORK RULES WERE ENACTED BY NEW YORK IN 1971 /1/  AS PART OF
GOVERNOR ROCKEFELLER'S EFFORTS TO REORGANIZE THE NEW YORK WELFARE
PROGRAM. 

[[HC408'(ORIGINAL DOCUMENT PAGE 408)'  THEIR AIM, AS EXPLAINED BY
THE GOVERNOR, IS TO ENCOURAGE "THE YOUNG AND ABLE-BODIED, TEMPORARILY
IN NEED OF ASSISTANCE THROUGH NO FAULT OF THEIR OWN, TO ACHIEVE THE
EDUCATION AND THE SKILLS, THE MOTIVATION AND THE DETERMINATION THAT
WILL MAKE IT POSSIBLE FOR THEM TO BECOME INCREASINGLY SELF-SUFFICIENT,
INDEPENDENT CITIZENS WHO CAN CONTRIBUTE TO AND SHARE IN THE
RESPONSIBILITY FOR THEIR FAMILIES AND OUR SOCIETY."  /2/ 

TO ACHIEVE THIS, THE WORK RULES ESTABLISH A PRESUMPTION THAT CERTAIN
RECIPIENTS OF PUBLIC ASSISTANCE ARE EMPLOYABLE /3/  AND REQUIRE THOSE
RECIPIENTS TO REPORT EVERY TWO WEEKS TO PICK UP THEIR ASSISTANCE CHECKS
IN PERSON; TO FILE EVERY TWO WEEKS A CERTIFICATE FROM THE APPROPRIATE
PUBLIC EMPLOYMENT OFFICE STATING THAT NO SUITABLE EMPLOYMENT
OPPORTUNITIES ARE AVAILABLE; TO REPORT FOR REQUESTED EMPLOYMENT
INTERVIEWS; TO REPORT TO THE PUBLIC EMPLOYMENT OFFICE THE RESULT OF A
REFERRAL FOR EMPLOYMENT; AND NOT TO FAIL WILLFULLY TO REPORT FOR
SUITABLE EMPLOYMENT, WHEN AVAILABLE. 

[[HC409'(ORIGINAL DOCUMENT PAGE 409)'  IN ADDITION TO ESTABLISHING A
SYSTEM OF REFERRAL FOR EMPLOYMENT IN THE PRIVATE SECTOR OF THE ECONOMY,
THE WORK RULES PERMIT THE ESTABLISHMENT OF PUBLIC WORKS PROJECTS IN NEW
YORK'S SOCIAL SERVICE DISTRICTS.  /4/  FAILURE OF "EMPLOYABLE" PERSONS
TO PARTICIPATE IN THE OPERATION OF THE WORK RULES RESULTS IN A LOSS OF
ASSISTANCE.  /5/ 

LIKE THE WORK RULES, WIN IS DESIGNED TO HELP INDIVIDUALS ON WELFARE
"ACQUIRE A SENSE OF DIGNITY, SELF-WORTH, AND CONFIDENCE WHICH WILL FLOW
FROM BEING RECOGNIZED AS A WAGE-EARNING MEMBER OF SOCIETY . . .," 42
U.S.C. ^ 630 (1970 ED., SUPP. I).  THE PROGRAM WAS ENACTED AS PART OF
THE 1967 AMENDMENTS TO THE SOCIAL SECURITY ACT, /6/  WHEREBY STATES
WERE REQUIRED TO INCORPORATE WIN INTO THEIR AID TO FAMILIES WITH
DEPENDENT CHILDREN (AFDC) PLANS. 

[[HC410'(ORIGINAL DOCUMENT PAGE 410)'  42 U.S.C. ^ 602 (A) (19), ^
630 ET SEQ. (1970 ED. AND SUPP. I).  EVERY STATE AFDC PLAN MUST PROVIDE
THAT CERTAIN "EMPLOYABLE" INDIVIDUALS, AS A CONDITION FOR RECEIVING
AID, SHALL REGISTER FOR MANPOWER SERVICES, TRAINING, AND EMPLOYMENT
UNDER REGULATIONS PROMULGATED BY THE SECRETARY OF LABOR.  42 U.S.C. ^
602 (A) (19) (A) (1970 ED., SUPP. I).  /7/  AVAILABLE SERVICES, TO BE
PROVIDED BY THE STATE, MUST INCLUDE "SUCH HEALTH, VOCATIONAL
REHABILITATION, COUNSELING, CHILD CARE, AND OTHER SOCIAL AND SUPPORTIVE
SERVICES AS ARE NECESSARY TO ENABLE SUCH INDIVIDUALS TO ACCEPT
EMPLOYMENT OR RECEIVE MANPOWER TRAINING . . ."  42 U.S.C. ^ 602 (A)
(19) (G) (1970 ED., SUPP. I). 

[[HC411'(ORIGINAL DOCUMENT PAGE 411)'  AFTER THE REQUIRED SERVICES
HAVE BEEN PROVIDED, THE STATE MUST CERTIFY TO THE SECRETARY OF LABOR
THOSE INDIVIDUALS WHO ARE READY FOR EMPLOYMENT OR TRAINING PROGRAMS, 42
U.S.C. ^^ 602 (A) (19) (G), 632, 633, (1970 ED. AND SUPP. I).  /8/
EMPLOYMENT CONSISTS BOTH OF WORK IN THE REGULAR ECONOMY AND
PARTICIPATION IN PUBLIC SERVICE PROGRAMS.  42 U.S.C. ^^ 630, 632, 633
(1970 ED. AND SUPP. I).  AS WITH THE WORK RULES, COOPERATION IN WIN IS
NECESSARY FOR EMPLOYABLE INDIVIDUALS TO CONTINUE TO RECEIVE
ASSISTANCE. 

IN THE COURT BELOW, APPELLEES, NEW YORK PUBLIC ASSISTANCE RECIPIENTS
SUBJECT TO THE WORK RULES, CHALLENGED THOSE RULES AS VIOLATIVE OF
SEVERAL PROVISIONS OF THE CONSTITUTION AND AS HAVING BEEN PRE-EMPTED BY
THE WIN PROVISIONS OF THE FEDERAL SOCIAL SECURITY ACT.  THE THREE-JUDGE
DISTRICT COURT REJECTED ALL BUT THE LAST CONTENTION.  348 F.SUPP.  290
(WDNY 1972).  ON THIS POINT, IT HELD THAT "FOR THOSE IN THE AFDC
PROGRAM, WIN PRE-EMPTS"  /9/  THE NEW YORK WORK RULES.  ID., AT 297. 
/10/ AS THIS HOLDING NOT ONLY AFFECTED THE CONTINUED OPERATION OF THE
NEW YORK RULES BUT RAISED SERIOUS DOUBTS AS TO THE VIABILITY OF THE
SUPPLEMENTARY WORK PROGRAMS IN 22 STATES, WE SET THE CAUSE FOR
ARGUMENT, 409 U.S. 1123 (1973).  /11/ 

[[HC412'(ORIGINAL DOCUMENT PAGE 412)'  WE NOW REVERSE THIS HOLDING. 

        I 

THE HOLDING OF THE COURT BELOW AFFECTS THE WORK RULES ONLY INSOFAR
AS THEY APPLY TO AFDC RECIPIENTS.  348 F.SUPP., AT 297, 300 AND N. 5. 
NEW YORK'S HOME RELIEF PROGRAM, FOR EXAMPLE -- A GENERAL STATE
ASSISTANCE PLAN FOR WHICH THERE IS NO FEDERAL REIMBURSEMENT OR SUPPORT
/12/  -- REMAINS UNTOUCHED BY THE COURT'S PRE-EMPTION RULING.  AS TO
AFDC PARTICIPANTS, HOWEVER, THE DECISION BELOW WOULD RENDER THE WORK
RULES INOPERATIVE AND HOLD WIN "THE EXCLUSIVE MANNER OF APPLYING THE
CARROT AND STICK" IN EFFORTS TO PLACE SUCH RECIPIENTS IN GAINFUL
EMPLOYMENT.  ID., AT 300.  /13/ 

THIS IS A SWEEPING STEP THAT STRIKES AT THE CORE OF STATE
PREROGATIVE UNDER THE AFDC PROGRAM -- A PROGRAM WHICH THIS COURT HAS
BEEN CAREFUL TO DESCRIBE AS A "SCHEME OF COOPERATIVE FEDERALISM." 

[[HC413'(ORIGINAL DOCUMENT PAGE 413)'  KING V. SMITH, 392 U.S. 309,
316 (1968); DANDRIDGE V. WILLIAMS, 397 U.S. 471, 478 (1970); JEFFERSON
V. HACKNEY, 406 U.S. 535, 542 (1972).  IT COULD IMPAIR THE CAPACITY OF
THE STATE GOVERNMENT TO DEAL EFFECTIVELY WITH THE CRITICAL PROBLEM OF
MOUNTING WELFARE COSTS AND THE INCREASING FINANCIAL DEPENDENCY OF MANY
OF ITS CITIZENS.  NEW YORK HAS A LEGITIMATE INTEREST IN ENCOURAGING
THOSE OF ITS CITIZENS WHO CAN WORK TO DO SO, AND THUS CONTRIBUTE TO THE
SOCIETAL WELL-BEING IN ADDIDTION TO THEIR PERSONAL AND FAMILY SUPPORT. 
TO THE EXTENT THAT THE WORK RULES EMBODY NEW YORK'S ATTEMPT TO PROMOTE
SELF-RELIANCE AND CIVIC RESPONSIBILITY, TO ASSURE THAT LIMITED STATE
WELFARE FUNDS BE SPENT ON BEHALF OF THOSE GENUINELY INCAPACITATED AND
MOST IN NEED, AND TO COPE WITH THE FISCAL HARDSHIPS ENVELOPING MANY
STATE AND LOCAL GOVERNMENTS, THIS COURT SHOULD NOT LIGHTLY INTERFERE. 
THE PROBLEMS CONFRONTING OUR SOCIETY IN THESE AREAS ARE SEVERE, AND
STATE GOVERNMENTS, IN COOPERATION WITH THE FEDERAL GOVERNMENT, MUST BE
ALLOWED CONSIDERABLE LATITUDE IN ATTEMPTING THEIR RESOLUTION. 

THIS COURT HAS REPEATEDLY REFUSED TO VOID STATE STATUTORY PROGRAMS,
ABSENT CONGRESSIONAL INTENT TO PRE-EMPT THEM. 

"IF CONGRESS IS AUTHORIZED TO ACT IN A FIELD, IT SHOULD MANIFEST ITS
INTENTION CLEARLY.  IT WILL NOT BE PRESUMED THAT A FEDERAL STATUTE WAS
INTENDED TO SUPERSEDE THE EXERCISE OF THE POWER OF THE STATE UNLESS
THERE IS A CLEAR MANIFESTATION OF INTENTION TO DO SO.  THE EXERCISE OF
FEDERAL SUPREMACY IS NOT LIGHTLY TO BE PRESUMED."  SCHWARTZ V. TEXAS,
344 U.S. 199, 202 - 203 (1952). 

SEE ALSO ENGINEERS V. CHICAGO, R. I. & P. R. CO., 382 U.S. 423, 429
(1966); HURON PORTLAND CEMENT CO. V. CITY OF DETROIT, 362 U.S. 440, 446
(1960); MINTZ V. BALDWIN,.289 U.S. 346, 350 (1933); SAVAGE V. JONES,
225 U.S. 501, 533 (1912). 

[[HC414'(ORIGINAL DOCUMENT PAGE 414)' 

THIS SAME PRINCIPLE RELATES DIRECTLY TO STATE AFDC PROGRAMS, WHERE
THE COURT ALREADY HAS ACKNOWLEDGED THAT STATES "HAVE CONSIDERABLE
LATITUDE IN ALLOCATING THEIR AFDC RESOURCES, SINCE EACH STATE IS FREE
TO SET ITS OWN STANDARD OF NEED AND TO DETERMINE THE LEVEL OF BENEFITS
BY THE AMOUNT OF FUNDS IT DEVOTES TO THE PROGRAM."  KING V. SMITH,
SUPRA, AT 318 - 319; DANDRIDGE V. WILLIAMS, SUPRA, AT 478; JEFFERSON V.
HACKNEY, SUPRA, AT 541.  MOREOVER, AT THE TIME OF THE PASSAGE OF THE
FEDERAL WORK INCENTIVE PROGRAM IN 1967, 21 STATES ALREADY HAD INITIATED
WELFARE WORK REQUIREMENTS AS A CONDITION OF AFDC ELIGIBILITY.  /14/  IF
CONGRESS HAD INTENDED TO PRE-EMPT STATE PLANS AND EFFORTS IN SUCH AN
IMPORTANT DIMENSION OF THE AFDC PROGRAM AS EMPLOYMENT REFERRALS FOR
THOSE ON ASSISTANCE, SUCH INTENTIONS WOULD IN ALL LIKELIHOOD HAVE BEEN
EXPRESSED IN DIRECT AND UNAMBIGUOUS LANGUAGE.  NO SUCH EXPRESSION
EXISTS, HOWEVER, EITHER IN THE FEDERAL STATUTE OR IN THE COMMITTEE
REPORTS.  /15/ 

APPELLEES ARGUE, NONETHELESS, THAT CONGRESS INTENDED TO PRE-EMPT
STATE WORK PROGRAMS BECAUSE OF THE COMPREHENSIVE NATURE OF THE WIN
LEGISLATION, ITS LEGISLATIVE HISTORY,  /16/  AND THE ALLEGED CONFLICTS
BETWEEN CERTAIN SECTIONS OF THE STATE AND FEDERAL LAWS.  /17/ 

[[HC415'(ORIGINAL DOCUMENT PAGE 415)'  WE DO NOT AGREE.  WE REJECT,
TO BEGIN WITH, THE CONTENTION THAT PRE-EMPTION IS TO BE INFERRED MERELY
FROM THE COMPREHENSIVE CHARACTER OF THE FEDERAL WORK INCENTIVE
PROVISIONS, 42 U.S.C. ^ 602 (A) (19), ^ 630 ET SEQ. (1970 ED. AND SUPP.
I).  THE SUBJECTS OF MODERN SOCIAL AND REGULATORY LEGISLATION OFTEN BY
THEIR VERY NATURE REQUIRE INTRICATE AND COMPLEX RESPONSES FROM THE
CONGRESS, BUT WITHOUT CONGRESS NECESSARILY INTENDING ITS ENACTMENT AS
THE EXCLUSIVE MEANS OF MEETING THE PROBLEM, CF. ASKEW V. AMERICAN
WATERWAYS, 411 U.S. 325 (1973).  GIVEN THE COMPLEXITY OF THE MATTER
ADDRESSED BY CONGRESS IN THE FEDERAL WORK INCENTIVE PROGRAM, A DETAILED
STATUTORY SCHEME WAS BOTH LIKELY AND APPROPRIATE, COMPLETELY APART FROM
ANY QUESTIONS OF PRE-EMPTIVE INTENT.  THIS WOULD BE ESPECIALLY THE CASE
WHEN THE FEDERAL WORK INCENTIVE PROVISIONS HAD TO BE SUFFICIENTLY
COMPREHENSIVE TO AUTHORIZE AND GOVERN PROGRAMS IN STATES WHICH HAD NO
WELFARE WORK REQUIREMENTS OF THEIR OWN AS WELL AS COOPERATIVELY IN
STATES WITH SUCH REQUIREMENTS. 

APPELLEES ALSO RELY, AS DID THE DISTRICT COURT, ON THE LEGISLATIVE
HISTORY AS SUPPORTING THE VIEW THAT "THE WIN LEGISLATION IS ADDRESSED
TO ALL AFDC RECIPIENTS, LEAVING NO EMPLOYABLE RECIPIENTS TO BE SUBJECT
TO STATE WORK RULES."  BRIEF FOR APPELLEES 29.  THE COURT BELOW POINTED
TO NO SPECIFIC LEGISLATIVE HISTORY AS SUPPORTIVE OF ITS CONCLUSION. 
APPELLEES DO CITE FRAGMENTARY STATEMENTS WHICH WE FIND UNPERSUASIVE. 
RELIANCE IS PLACED, FOR EXAMPLE, ON A STATEMENT IN THE REPORT OF THE
HOUSE WAYS AND MEANS COMMITTEE ON THE WIN LEGISLATION AS FOLLOWS: 

     "UNDER YOUR COMMITTEE'S BILL, STATES WOULD BE REQUIRED TO

  DEVELOP A PROGRAM FOR EACH APPROPRIATE RELATIVE AND DEPENDENT

  CHILD WHICH WOULD ASSURE, TO THE MAXIMUM EXTENT POSSIBLE, THAT

  EACH INDIVIDUAL WOULD ENTER THE LABOR FORCE IN ORDER TO BECOME

  SELF-SUFFICIENT. 

[[HC416'(ORIGINAL DOCUMENT PAGE 416)'

  TO ACCOMPLISH THIS, THE STATES WOULD HAVE TO ASSURE THAT EACH
ADULT IN THE FAMILY AND EACH

  CHILD OVER AGE 16 WHO IS NOT ATTENDING SCHOOL IS GIVEN, WHEN
APPROPRIATE, EMPLOYMENT

  COUNSELING, TESTING, AND JOB TRAINING."  H. R. REP. NO. 544, 90TH
CONG., 1ST SESS., 16

  (1967).  /18/  (EMPHASIS SUPPLIED.) 

AT BEST, THIS STATEMENT IS AMBIGUOUS AS TO A POSSIBLE CONGRESSIONAL
INTENTION TO SUPERSEDE ALL STATE WORK PROGRAMS.  /19/
"APPROPRIATENESS," AS USED IN THE COMMITTEE REPORT, MAY WELL MEAN
"APPROPRIATENESS" SOLELY WITHIN THE SCOPE AND CONFINES OF WIN. 

[[HC417'(ORIGINAL DOCUMENT PAGE 417)'  FURTHERMORE, THE LANGUAGE
EMPLOYED BY CONGRESS IN ENACTING WIN MUST BE CONSIDERED IN CONJUNCTION
WITH ITS OPERATIONAL SCOPE AND LEVEL OF FUNDING, WHICH, AS WILL BE
SHOWN, IS QUITE LIMITED WITH RESPECT TO THE TOTAL NUMBER OF EMPLOYABLE
AFDC RECIPIENTS, PART II, INFRA. 

IN SUM, OUR ATTENTION HAS BEEN DIRECTED TO NO RELEVANT ARGUMENT
WHICH SUPPORTS, EXCEPT IN THE MOST PERIPHERAL WAY, THE VIEW THAT
CONGRESS INTENDED, EITHER EXPRESSLY OR IMPLIEDLY, TO PRE-EMPT STATE
WORK PROGRAMS.  FAR MORE WOULD BE REQUIRED TO SHOW THE "CLEAR
MANIFESTATION OF (CONGRESSIONAL) INTENTION" WHICH MUST EXIST BEFORE A
FEDERAL STATUTE IS HELD "TO SUPERSEDE THE EXERCISE" OF STATE ACTION. 
SCHWARTZ V. TEXAS, 344 U.S., AT 202 - 203. 

        II 

PERSUASIVE AFFIRMATIVE REASONS EXIST IN THIS CASE WHICH ALSO
STRONGLY NEGATE THE VIEW THAT CONGRESS INTENDED, BY THE ENACTMENT OF
THE WIN LEGISLATION, TO TERMINATE ALL EXISTING STATE WORK PROGRAMS AND
FORECLOSE ADDITIONAL STATE COOPERATIVE PROGRAMS IN THE FUTURE. 

[[HC418'(ORIGINAL DOCUMENT PAGE 418)'  WE NOTE, FIRST, THAT WIN
ITSELF WAS NOT DESIGNED ON ITS FACE TO BE ALL EMBRACING.  FEDERAL WORK
INCENTIVE PROGRAMS WERE TO BE ESTABLISHED ONLY IN STATES AND POLITICAL
SUBDIVISIONS 

"IN WHICH (THE SECRETARY OF LABOR) DETERMINES THERE IS A SIGNIFICANT
NUMBER OF INDIVIDUALS WHO HAVE ATTAINED AGE 16 AND ARE RECEIVING AID TO
FAMILIES WITH DEPENDENT CHILDREN.  IN OTHER POLITICAL SUBDIVISIONS, HE
SHALL USE HIS BEST EFFORTS TO PROVIDE SUCH PROGRAMS EITHER WITHIN SUCH
SUBDIVISIONS OR THROUGH THE PROVISION OF TRANSPORTATION FOR SUCH
PERSONS TO POLITICAL SUBDIVISIONS OF THE STATE IN WHICH SUCH PROGRAMS
ARE ESTABLISHED."  42 U.S.C. ^ 632 (A) (1970 ED., SUPP. I). 

THIS SECTION CONSTITUTES AN EXPRESS RECOGNITION THAT THE FEDERAL
STATUTE PROBABLY WOULD BE LIMITED IN SCOPE AND APPLICATION.  /20/  IN
NEW YORK, THIS HAS MEANT OPERATION OF WIN IN ONLY 14 OF NEW YORK'S 64
SOCIAL SERVICE DISTRICTS, THOUGH THESE 14 DISTRICTS DO SERVICE
APPROXIMATELY 90% OF THE WELFARE RECIPIENTS IN THE STATE.  YET THE
SECRETARY OF LABOR HAS NOT AUTHORIZED ADDITIONAL WIN PROGRAMS FOR THE
OTHER DISTRICTS, RESULTING IN A LACK OF FEDERAL JOB PLACEMENT
OPPORTUNITIES IN THE MORE LIGHTLY POPULATED AREAS OF STATES AND IN
THOSE WITHOUT ADEQUATE TRANSPORTATION OF POTENTIAL ENROLLEES TO
DISTRICTS WITH WIN PROGRAMS.  /21/     [[HC419'(ORIGINAL DOCUMENT PAGE
419)' 

EVEN IN THE DISTRICTS WHERE WIN DOES OPERATE, ITS REACH IS LIMITED. 
IN NEW YORK, ACCORDING TO FEDERAL ESTIMATES, THERE ARE 150,000 WIN
REGISTRANTS FOR THE CURRENT FISCAL YEAR, BUT THE SECRETARY OF LABOR HAS
CONTRACTED WITH THE STATE TO PROVIDE SERVICES TO ONLY 90,000
REGISTRANTS, OF WHOM THE MAJORITY WILL NOT RECEIVE FULL JOB TRAINING
AND PLACEMENT ASSISTANCE.  /22/  IN FISCAL 1971, NEW YORK ASSERTS THAT
"17,511 INDIVIDUALS WERE REFERRED FOR PARTICIPATION IN THE WIN PROGRAM,
BUT THE FEDERAL GOVERNMENT ALLOWED ONLY 9,600 OPPORTUNITIES FOR
ENROLLMENT."  /23/  CALIFORNIA CLAIMS "OVER 122,000 EMPLOYABLE AFDC
RECIPIENTS"  LAST YEAR, BUT ONLY 18,000 AVAILABLE WIN SLOTS.  /24/ 

IT IS EVIDENT THAT WIN IS A PARTIAL PROGRAM WHICH STOPS SHORT OF
PROVIDING ADEQUATE JOB AND TRAINING OPPORTUNITIES FOR LARGE NUMBERS OF
STATE AFDC RECIPIENTS.  IT WOULD BE INCONGRUOUS FOR CONGRESS ON THE ONE
HAND TO PROMOTE WORK OPPORTUNITIES FOR AFDC RECIPIENTS AND ON THE OTHER
TO PREVENT STATES FROM UNDERTAKING SUPPLEMENTARY EFFORTS TOWARD THIS
VERY SAME END.  WE CANNOT INTERPRET FEDERAL STATUTES TO NEGATE THEIR
OWN STATED PURPOSES. 

[[HC420'(ORIGINAL DOCUMENT PAGE 420)'  THE SIGNIFICANCE OF STATE
SUPPLEMENTATION IS ILLUSTRATED BY THE EXPERIENCE IN NEW YORK, WHERE THE
WORK RULES HAVE AIDED THE OBJECTIVES OF FEDERAL WORK INCENTIVES: FROM
JULY 1 THROUGH SEPTEMBER 30, 1971, THE FIRST MONTHS OF THE WORK RULES'
OPERATION, THE STATE EMPLOYMENT SERVICE CLAIMED JOB PLACEMENTS FOR
APPROXIMATELY 9,376 RECIPIENTS.  /25/ 

MOREOVER, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, THE
AGENCY OF GOVERNMENT RESPONSIBLE FOR ADMINISTERING THE FEDERAL SOCIAL
SECURITY ACT -- INCLUDING REVIEWING OF STATE AFDC PROGRAMS -- HAS NEVER
CONSIDERED THE WIN LEGISLATION TO BE PRE-EMPTIVE.  HEW HAS FOLLOWED
CONSISTENTLY THE POLICY OF APPROVING STATE PLANS CONTAINING WELFARE
WORK REQUIREMENTS SO LONG AS THOSE REQUIREMENTS ARE NOT ARBITRARY OR
UNREASONABLE.  /26/  CONGRESS PRESUMABLY KNEW OF THIS SETTLED
ADMINISTRATIVE POLICY AT THE TIME OF THE ENACTMENT OF WIN, WHEN 21
STATES HAD WELFARE WORK PROGRAMS.  SUBSEQUENT TO WIN'S PASSAGE, HEW HAS
CONTINUED TO APPROVE STATE WORK REQUIREMENTS.  PURSUANT TO SUCH
APPROVAL, NEW YORK HAS RECEIVED FEDERAL GRANTS-IN-AID FOR THE OPERATION
OF ITS AFDC PLAN, INCLUDING ITS WORK PROVISIONS.  /27/ 

[[HC421'(ORIGINAL DOCUMENT PAGE 421)'  IN INTERPRETING THIS STATUTE,
WE MUST BE MINDFUL THAT "THE CONSTRUCTION OF A STATUTE BY THOSE CHARGED
WITH ITS EXECUTION SHOULD BE FOLLOWED UNLESS THERE ARE COMPELLING
INDICATIONS THAT IT IS WRONG . . . ."  RED LION BROADCASTING CO. V.
FCC, 395 U.S. 367, 381 (1969); DANDRIDGE V. WILLIAMS, 397 U.S., AT 481
482.  IN THIS CASE, SUCH INDICATIONS ARE WHOLLY ABSENT. 

NEW YORK, FURTHERMORE, HAS ATTEMPTED TO OPERATE THE WORK RULES IN
SUCH A MANNER AS TO AVOID FRICTION AND OVERLAP WITH WIN.  OFFICIALS
FROM BOTH THE STATE DEPARTMENT OF LABOR AND A LOCAL SOCIAL SERVICE
DEPARTMENT TESTIFIED BELOW THAT EVERY AFDC RECIPIENT APPROPRIATE FOR
WIN WAS FIRST REFERRED THERE, THAT NO PERSON WAS TO BE REFERRED TO THE
STATE PROGRAM WHO WAS PARTICIPATING IN WIN, AND THAT ONLY IF THERE WAS
NO POSITION AVAILABLE FOR HIM UNDER WIN, WAS A RECIPIENT TO BE REFERRED
FOR EMPLOYMENT PURSUANT TO STATE STATUTE.  /28/  WHERE COORDINATE STATE
AND FEDERAL EFFORTS EXIST WITHIN A COMPLEMENTARY ADMINISTRATIVE
FRAMEWORK, AND IN THE PURSUIT OF COMMON PURPOSES, THE CASE FOR FEDERAL
PRE-EMPTION BECOMES A LESS PERSUASIVE ONE. 

IN THIS CONTEXT, THE DISSENTING OPINION'S RELIANCE ON TOWNSEND V.
SWANK, 404 U.S. 282 (1971), CARLESON V. REMILLARD, 406 U.S. 598 (1972),
AND KING V. SMITH, 392 U.S. 309 (1968), IS MISPLACED.  IN THOSE CASES
IT WAS CLEAR THAT STATE LAW EXCLUDED PEOPLE FROM AFDC BENEFITS WHO THE
SOCIAL SECURITY ACT EXPRESSLY PROVIDED WOULD BE ELIGIBLE.  THE COURT
FOUND NO ROOM EITHER IN THE ACT'S LANGUAGE OR LEGISLATIVE HISTORY TO
WARRANT THE STATES' ADDITIONAL ELIGIBILITY REQUIREMENTS. 

[[HC422'(ORIGINAL DOCUMENT PAGE 422)'  HERE, BY CONTRAST, THE ACT
ALLOWS FOR COMPLEMENTARY STATE WORK INCENTIVE PROGRAMS AND PROCEDURES
INCIDENT THERETO -- EVEN IF THEY BECOME CONDITIONS FOR CONTINUED
ASSISTANCE.  SUCH PROGRAMS AND PROCEDURES ARE NOT NECESSARILY INVALID,
ANY MORE THAN OTHER SUPPLEMENTARY REGULATIONS PROMULGATED WITHIN THE
LEGITIMATE SPHERE OF STATE ADMINISTRATION.  SEE WYMAN V. JAMES, 400
U.S. 309 (1971); SNELL V. WYMAN, 281 F.SUPP.  853 (SDNY), AFF'D, 393
U.S. 323 (1969).  SEE ALSO DANDRIDGE V. WILLIAMS, SUPRA; JEFFERSON V.
HACKNEY, 406 U.S. 535 (1972). 

        III 

WE THUS REVERSE THE HOLDING BELOW THAT THE FEDERAL WORK INCENTIVE
PROGRAM PRE-EMPTS THE NEW YORK WORK RULES.  OUR RULING ESTABLISHES THE
VALIDITY OF A STATE WORK PROGRAM AS ONE MEANS OF HELPING AFDC
RECIPIENTS RETURN TO GAINFUL EMPLOYMENT.  WE DO NOT RESOLVE, HOWEVER,
THE QUESTION OF WHETHER SOME PARTICULAR SECTIONS OF THE WORK RULES
MIGHT CONTRAVENE THE SPECIFIC RPOVISIONS OF THE FEDERAL SOCIAL SECURITY
ACT. 

THIS LAST QUESTION WE REMAND TO THE COURT BELOW.  THAT COURT DID NOT
HAVE THE OPPORTUNITY TO CONSIDER THE ISSUE OF SPECIFIC CONFLICT BETWEEN
THE STATE AND FEDERAL PROGRAMS, FREE FROM ITS MISAPPREHENSION THAT THE
WORK RULES HAD BEEN ENTIRELY PRE-EMPTED.  FURTHER, THE NEW YORK
LEGISLATURE AMENDED THE WORK RULES IN 1972 TO PROVIDE, AMONG OTHER
THINGS, FOR EXEMPTION OF PERSONS ENGAGED IN FULL-TIME TRAINING AND
VOCATIONAL REHABILITIATION PROGRAMS FROM THE REPORTING AND CHECK PICK
UP REQUIREMENTS (N. Y. LAWS 1972 C. 683), FOR MONTHLY RATHER THAN SEMI
MONTHLY PAYMENTS OF SHELTER ALLOWANCES (ID., C. 685) AND, MOST
SIGNIFICANTLY, FOR A DEFINITION OF AN "EMPLOYABLE" AFDC RECIPIENT WHICH
IS CLAIMED BY NEW YORK TO BE IDENTICAL TO THAT NOW USED UNDER WIN (ID.,
C. 941). 

[[HC423'(ORIGINAL DOCUMENT PAGE 423)'  INASMUCH AS THE COURT BELOW
DID NOT HAVE THE OPPORTUNITY TO CONSIDER THE 1972 AMENDMENTS AS THEY
RELATED TO THE ISSUE OF POTENTIAL STATE-FEDERAL CONFLICT, THE REMAND
SHOULD AFFORD IT. 

WE DEEM IT UNNECESSARY AT THE PRESENT TIME TO INTIMATE ANY VIEW ON
WHETHER OR TO WHAT EXTENT PARTICULAR PROVISIONS OF THE WORK RULES MAY
CONTRAVENE THE PURPOSES OR PROVISIONS OF WIN.  SUCH A DETERMINATION
SHOULD BE MADE INITIALLY BY THE COURT BELOW, CONSISTENT WITH THE
PRINCIPLES SET FORTH IN THIS OPINION.  /29/ 

THE JUDGMENT OF THE THREE-JUDGE DISTRICT COURT IS REVERSED AND THE
CASES ARE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

    IT IS SO ORDERED. 

/1/  THE BASIC PROVISIONS OF THE WORK RULES AT THE TIME THIS ACTION
WAS BROUGHT ARE SET FORTH IN ^ 131 OF THE NEW YORK SOCIAL SERVICES LAW
(SUPP. 1971 - 1972): 

"4.  NO ASSISTANCE OR CARE SHALL BE GIVEN TO AN EMPLOYABLE PERSON
WHO HAS NOT REGISTERED WITH THE NEAREST LOCAL EMPLOYMENT AGENCY OF THE
DEPARTMENT OF LABOR OR HAS REFUSED TO ACCEPT EMPLOYMENT IN WHICH HE IS
ABLE TO ENGAGE. 

"A PERSON SHALL BE DEEMED TO HAVE REFUSED TO ACCEPT SUCH EMPLOYMENT
IF HE: 

"A.  FAILS TO OBTAIN AND FILE WITH THE SOCIAL SERVICES DISTRICT AT
LEAST SEMI-MONTHLY A NEW CERTIFICATE FROM THE APPROPRIATE LOCAL
EMPLOYMENT OFFICE OF THE STATE DEPARTMENT OF LABOR STATING THAT SUCH
EMPLOYMENT OFFICE HAS NO ORDER FOR AN OPENING IN PART-TIME, FULL-TIME,
TEMPORARY OR PERMANENT EMPLOYMENT IN WHICH THE APPLICANT IS ABLE TO
ENGAGE, OR 

"B.  WILLFULLY FAILS TO REPORT FOR AN INTERVIEW AT AN EMPLOYMENT
OFFICE WITH RESPECT TO EMPLOYMENT WHEN REQUESTED TO SO DO BY SUCH
OFFICE, OR 

"C.  WILLFULLY FAILS TO REPORT TO SUCH OFFICE THE RESULT OF A
REFERRAL TO EMPLOYMENT, OR 

"D.  WILLFULLY FAILS TO REPORT FOR EMPLOYMENT.  SUCH WILLFUL
FAILURES OR REFUSALS AS ABOVE LISTED SHALL BE REPORTED IMMEDIATELY TO
THE SOCIAL SERVICES DISTRICT BY SUCH EMPLOYMENT OFFICE. 

FOR THE PURPOSES OF THIS SUBDIVISION AND SUBDIVISION FIVE, A PERSON
SHALL BE DEEMED EMPLOYABLE IF SUCH A PERSON IS NOT RENDERED UNABLE TO
WORK BY: ILLNESS OR SIGNIFICANT AND SUBSTANTIAL INCAPACITATION, EITHER
MENTAL OR PHYSICAL, TO THE EXTENT AND OF SUCH DURATION THAT SUCH
ILLNESS OR INCAPACITATION PREVENTS SUCH PERSON FROM PERFORMING
SERVICES; ADVANCED AGE; FULL-TIME ATTENDANCE AT SCHOOL IN THE CASE OF
MINOR, IN ACCORDANCE WITH PROVISIONS OF THIS CHAPTER; FULL-TIME,
SATISFACTORY PARTICIPATION IN AN APPROVED PROGRAM OF VOCATIONAL
TRAINING OR REHABILITATION; THE NEED OF SUCH PERSON TO PROVIDE FULL
TIME CARE FOR OTHER MEMBERS OF SUCH PERSON'S HOUSEHOLD WHO ARE WHOLLY
INCAPACITATED, OR WHO ARE CHILDREN, AND FOR WHOM REQUIRED CARE IS NOT
OTHERWISE REASONABLY AVAILABLE, NOTWITHSTANDING DILIGENT EFFORTS BY
SUCH PERSON AND THE APPROPRIATE SOCIAL SERVICES DEPARTMENT TO OBTAIN
OTHERS TO PROVIDE SUCH CARE.  A PERSON ASSIGNED TO AND PARTICIPATING IN
A PUBLIC WORKS PROJECT UNDER THE PROVISIONS OF SECTION ONE HUNDRED
SIXTY-FOUR OR THREE HUNDRED FIFTY-K OF THIS CHAPTER SHALL BE DEEMED TO
BE EMPLOYABLE BUT NOT EMPLOYED. 

"EVERY EMPLOYABLE RECIPIENT OF PUBLIC ASSISTANCE OR PERSON WHO IS
DEEMED NOT TO BE EMPLOYABLE BY REASON OF FULL-TIME SATISFACTORY
PARTICIPATION IN AN APPROVED PROGRAM OF VOCATIONAL TRAINING OR
REHABILITATION SHALL RECEIVE HIS PUBLIC ASSISTANCE GRANTS AND
ALLOWANCES IN PERSON FROM THE DIVISION OF EMPLOYMENT OF THE STATE
DEPARTMENT OF LABOR, IN ACCORDANCE WITH REGULATIONS OF THE
DEPARTMENT." 

WORKS PROJECT EMPLOYMENT FOR EMPLOYABLE RECIPIENTS OF AFDC WHO CANNOT
BE PLACED IN REGULAR EMPLOYMENT. 

/2/  SPECIAL MESSAGE TO THE NEW YORK STATE LEGISLATURE, MAR. 29,
1971 (BRIEF FOR APPELLANTS N. Y. STATE DEPTS.  9). 

/3/  FOR THE STATUTORY DEFINITION OF PERSONS DEEMED "EMPLOYABLE" SEE
N. 1, SUPRA. 

/4/  SEE IBID.  THESE PROVISIONS FOR EMPLOYMENT OF RECIPIENTS IN
PUBLIC WORKS PROJECTS HAVE NOT BEEN IMPLEMENTED, AS THE HEW REGIONAL
COMMISSIONER INDICATED THAT SUCH PROJECTS WOULD NOT BE APPROVED FOR
FEDERAL AID.  BRIEF FOR APPELLANTS N. Y. STATE DEPTS.  13. 

/5/  SEE N. 1, SUPRA, AND SOCIAL SERVICES ADMINISTRATIVE LETTER, 71
PWD - 43 WHICH READS IN RELEVANT PART: 

"(THE LAWS OF 1971 PLACE A RENEWED AND EXPANDED EMPHASIS ON
RESTORING ALL EMPLOYABLE RECIPIENTS OF PUBLIC ASSISTANCE TO EMPLOYMENT
IN THE REGULAR ECONOMY.  ACCORDINGLY, ALL UNEMPLOYED EMPLOYABLE PERSONS
APPLYING FOR OR RECEIVING PUBLIC ASSISTANCE ARE NOT ONLY REQUIRED TO
REGISTER AT THE NEW YORK STATE EMPLOYMENT SERVICE DISTRICT OFFICE IN
THEIR COMMUNITY, AND REPORT THERE REGULARLY FOR APPROPRIATE EMPLOYMENT
COUNSELING SERVICES AND JOB REFERRAL, BUT, EFFECTIVE JULY 1, THEY WILL
ALSO PICK UP THEIR ASSISTANCE CHECKS THERE.  THE PENALTY FOR NOT
COOPERATING IN THIS PROCEDURE IS INELIGIBILITY FOR PUBLIC ASSISTANCE
WHETHER THE INDIVIDUAL IS THE GRANTEE HEAD OF FAMILY, SINGLE PERSON
LIVING ALONE, OR NON-GRANTEE NON-HEAD OF FAMILY."  APP. 53 - 54. 

/6/  IN 1971, FURTHER AMENDMENTS DEALING WITH WIN WERE ENACTED.  ACT
OF DEC. 28, 1971, PUB. L. 92 - 223, ^ 3, 85 STAT. 803. 

/7/  "SEC.  602.  STATE PLANS FOR AID AND SERVICES TO NEEDY FAMILIES
WITH CHILDREN; CONTENTS; APPROVAL BY SECRETARY. 

"(A) A STATE PLAN FOR AID AND SERVICES TO NEEDY FAMILIES WITH
CHILDREN MUST . . .

        *          *          *          * 

"(19) PROVIDE -- 

"(A) THAT EVERY INDIVIDUAL, AS A CONDITION OF ELIGIBILITY FOR AID
UNDER THIS PART, SHALL REGISTER FOR MANPOWER SERVICES, TRAINING, AND
EMPLOYMENT AS PROVIDED BY REGULATIONS OF THE SECRETARY OF LABOR, UNLESS
SUCH INDIVIDUAL IS -- 

"(I) A CHILD WHO IS UNDER AGE 16 OR ATTENDING SCHOOL FULL TIME; 

"(II) A PERSON WHO IS ILL, INCAPACITATED, OR OF ADVANCED AGE; 

"(III) A PERSON SO REMOTE FROM A WORK INCENTIVE PROJECT THAT HIS
EFFECTIVE PARTICIPATION IS PRECLUDED; 

"(IV) A PERSON WHOSE PRESENCE IN THE HOME IS REQUIRED BECAUSE OF
ILLNESS OR INCAPACITY OF ANOTHER MEMBER OF THE HOUSEHOLD; 

"(V) A MOTHER OR OTHER RELATIVE OF A CHILD UNDER THE AGE OF SIX WHO
IS CARING FOR THE CHILD; OR 

"(VI) THE MOTHER OR OTHER FEMALE CARETAKER OF A CHILD, IF THE FATHER
OR ANOTHER ADULT MALE RELATIVE IS IN THE HOME AND NOT EXCLUDED BY
CLAUSE (I), (II), (III), OR (IV) OF THIS SUBPARAGRAPH (UNLESS HE HAS
FAILED TO REGISTER AS REQUIRED BY THIS SUBPARAGRAPH OR HAS BEEN FOUND
BY THE SECRETARY OF LABOR UNDER SECTION 633 (G) OF THIS TITLE TO HAVE
REFUSED WITHOUT GOOD CAUSE TO PARTICIPATE UNDER A WORK INCENTIVE
PROGRAM OR ACCEPT EMPLOYMENT AS DESCRIBED IN SUBPARAGRAPH (F) OF THIS
PARAGRAPH)." 

/8/  STATES ARE PENALIZED BY A REDUCTION IN ASSISTANCE IF THEY FAIL
TO CERTIFY TO THE SECRETARY OF LABOR AT LEAST 15% OF THE AVERAGE NUMBER
OF THOSE REGISTERED EACH YEAR.  42 U.S.C. ^ 603 (C) (1970 ED., SUPP.
I). 

/9/  THE DISTRICT COURT AND THE PARTIES IN THIS CASE HAVE USED THE
WORD "PRE-EMPTION" IN A RATHER SPECIAL SENSE.  THIS IS NOT A CASE
INVOLVING ARGUABLE FEDERAL PRE-EMPTION OF A WHOLLY INDEPENDENT STATE
PROGRAM DEALING WITH THE SAME OR A SIMILAR PROBLEM.  CF., E. G., HURON
PORTLAND CEMENT CO. V. DETROIT, 362 U.S. 440, 446 (1960).  AFDC IS A
FEDERAL STATUTORY PROGRAM, OF WHICH THE WIN PROGRAM IS A PART.  THE
STATE WORK RULES ALSO WERE PROMULGATED AS PART OF THE IMPLEMENTATION OF
AFDC, AND ARE THEREFORE NOT WHOLLY INDEPENDENT OF THE FEDERAL PROGRAM. 
WITH THIS CAVEAT, HOWEVER, WE WILL PRESERVE THE DISTRICT COURT'S USAGE,
WHICH HAS THE ADVANTAGE OF FOCUSING ATTENTION ON THE CRITICAL QUESTION:
WHETHER CONGRESS INTENDED WIN TO PROVIDE THE EXCLUSIVE MECHANISM FOR
ESTABLISHING WORK RULES UNDER AFDC.     /10/  THE COURT FOUND
ADDITIONAL POINTS OF CONFLICT BETWEEN THE STATE AND FEDERAL PROGRAMS
WITH REGARD TO PROCEDURES FOR TERMINATION OF BENEFITS AND THE PRESENCE
OF CERTAIN HEARINGS AND COUNSELING SERVICES UNDER WIN WHICH WERE ABSENT
FROM THE WORK RULES.  348 F.SUPP.  290, 295 - 297. 

/11/  WE POSTPONED CONSIDERATION OF THE QUESTION OF JURISDICTION TO
THE HEARING ON THE MERITS.  WE NOW CONCLUDE THAT THE CONSTITUTIONAL
QUESTIONS RAISED BY APPELLEES WERE NOT SO INSUBSTANTIAL AS TO DEPRIVE
THE THREE-JUDGE DISTRICT COURT OF JURISDICTION. 

AS TO APPELLEES' DUE PROCESS CLAIM, THE COURT BELOW DIRECTED THE
STATE TO IMPLEMENT SUITABLE MEANS OF INFORMING HOME RELIEF RECIPIENTS
OF THEIR HEARING RIGHTS.  ID., AT 299.  THE STATE STIPULATES THAT THIS
HAS BEEN DONE.  TR. OF ORAL ARG. 19 - 20.  THE ONLY ISSUE WHICH WE
ADDRESS ON THIS APPEAL IS WHETHER THE STATE PROGRAM IS SUPERSEDED IN
WHOLE OR IN PART BY FEDERAL LAW. 

/12/  THE AFDC PROGRAM IS JOINTLY FINANCED BY THE STATES AND FEDERAL
GOVERNMENT.  DANDRIDGE V. WILLIAMS, 397 U.S. 471, 473 (1970). 

/13/  APPELLEES' POSITION IS ALSO ONE OF "COMPLETE EXCLUSION" OF THE
WORK RULES, AT LEAST WITH REGARD TO AFDC RECIPIENTS.  TR. OF ORAL ARG.
34; BRIEF FOR APPELLEES IN RESPONSE TO BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE 2 - 3. 

/14/  SEE BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 12.  THE
INFORMATION WAS DERIVED FROM A SURVEY OF STATE PLANS CONDUCTED BY THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. 

/15/  NO EXPRESS INTENTION TO ELIMINATE CO-EXISTING STATE WORK
PROGRAMS APPEARS EITHER AT THE TIME OF THE ORIGINAL 1967 ENACTMENT OF
WIN, SEE S. REP. NO. 744, 90TH CONG., 1ST SESS., 26, 145 - 157; H. R.
REP. NO. 1030, 90TH CONG., 1ST SESS., 58 - 59, OR AT THE TIME OF THE
1971 AMENDMENTS, N. 6, SUPRA. 

/16/  THE COURT BELOW ALSO ASSERTED THAT THE LEGISLATIVE HISTORY WAS
SUPPORTIVE OF A PRE-EMPTIVE INTENT, 348 F.SUPP., AT 297. 

/17/  IN VIEW OF OUR REMAND, PART III, INFRA, WE DO NOT REACH THE
ISSUE OF SPECIFIC ALLEGED CONFLICTS.  IN SUM, HOWEVER, THEY ARE NOT
SUFFICIENT TO INDICATE PRE-EMPTIVE INTENT, ESPECIALLY IN LIGHT OF THE
IMPRESSIVE EVIDENCE TO THE CONTRARY. 

/18/  OTHER CITATIONS TO SIMILAR EFFECT APPEAR IN BRIEF FOR
APPELLEES 29 - 30. 

/19/  PERHAPS THE MOST REVEALING LEGISLATIVE EXPRESSIONS CONFIRM,
SUBSEQUENT TO ENACTMENT, A CONGRESSIONAL DESIRE TO PRESERVE
SUPPLEMENTARY STATE WORK PROGRAMS, NOT TO SUPERSEDE THEM.  IN THE WAKE
OF THE INVALIDATION OF THE NEW YORK WORK RULES BY THE THREE-JUDGE
DISTRICT COURT, MEMBERS OF THE NEW YORK CONGRESSIONAL DELEGATION BECAME
CONCERNED THAT THE COURT HAD MISCONSTRUED THE INTENT OF CONGRESS.  THE
FOLLOWING COLLOQUY OCCURRED BETWEEN SENATOR BUCKLEY OF NEW YORK AND
SENATOR LONG OF LOUISIANA, CHAIRMAN OF THE FINANCE COMMITTEE WHICH
CONSIDERED THE WIN PROGRAM PRIOR TO APPROVAL BY THE SENATE: 

"MR. BUCKLEY.  WAS IT EVER THE INTENTION OF CONGRESS AT THAT TIME TO
HAVE THE PROVISIONS OF THE WIN STATUTES PREEMPT THE FIELD OF EMPLOYMENT
AND TRAINING FOR ADC RECIPIENTS? 

"MR. LONG.  I DID NOT HAVE THAT IN MIND.  . . . 

"MR. BUCKLEY.  . . . SO FAR AS THE DISTINGUISHED CHAIRMAN IS
CONCERNED, WAS IT EVER THE INTENTION OF AT LEAST THIS BODY TO HAVE A
PREEMPTION IN THIS FIELD? 

"MR. LONG.  IT WAS NEVER OUR INTENTION TO PREVENT A STATE FROM
REQUIRING RECIPIENTS TO DO SOMETHING FOR THEIR MONEY IF THEY WERE
EMPLOYABLE.  . . ."  118 CONG. REC. S. 36819 (1972). 

IN THE HOUSE OF REPRESENTATIVES, A SIMILAR DIALOGUE TOOK PLACE
BETWEEN CONGRESSMAN CAREY OF NEW YORK AND CONGRESSMAN MILLS, CHAIRMAN
OF THE HOUSE WAYS AND MEANS COMMITTEE, WHICH CONSIDERED THE WIN
PROGRAM: 

"MR. CAREY OF NEW YORK.  . . . MY SPECIFIC QUESTION FOR THE CHAIRMAN
HAS TO DO WITH THE INTENT OF THE CONGRESS IN AUTHORIZING THE WIN
PROGRAM IN 1967 AND IN AMENDMENTS TO THAT PROGRAM IN SUBSEQUENT YEARS. 
IT IS MY UNDERSTANDING THAT CONGRESS INTENDED, THROUGH THE WIN PROGRAM,
MERELY TO ASSIST THE STATES IN THE CRITICAL AREA OF GUIDING ABLE-BODIED
WELFARE RECIPIENTS TOWARD SELF-SUFFICIENCY -- AND NOT TO SUPERSEDE
INDIVIDUAL STATE PROGRAMS DESIGNED TO ACHIEVE THE SAME END.  UNDER THIS
INTERPRETATION, NEW YORK AND OTHER STATES COULD OPERATE THEIR OWN
PROGRAMS AS SUPPLEMENTARY TO THE FEDERAL WIN PROGRAM.  IS MY
UNDERSTANDING OF THE CONGRESSIONAL INTENT IN THIS AREA CORRECT? 

"MR. MILLS OF ARKANSAS.  I AGREE WITH THE INTERPRETATION OF MY
FRIEND, THE GENTLEMAN FROM NEW YORK, ON THE MATTER, SO LONG AS THE
STATE PROGRAM DOES NOT CONTRAVENE THE PROVISIONS OF FEDERAL LAW."  118
CONG. REC. 36931 (1972). 

/20/  THE WIN GUIDELINES, ISSUED BY THE UNITED STATES DEPARTMENT OF
LABOR, PROVIDE ACCORDING TO APPELLANTS, FOR ESTABLISHMENT OF WIN
PROGRAMS ONLY IN THOSE AREAS WHERE THERE ARE AT LEAST 1,100 POTENTIAL
WIN ENROLLEES, BRIEF FOR APPELLANTS N. Y. STATE DEPTS.  37. 

/21/  SEE ID., AT 37 - 38.  TITLE 42 U.S.C. ^ 602 (A) (19) (A) (III)
(1970 ED., SUPP. I) MAY ALSO HAVE CONTEMPLATED LIMITED APPLICATION OF
THE FEDERAL WORK INCENTIVE PROGRAM, SINCE IT EXEMPTS FROM WIN
REGISTRATION "A PERSON SO REMOTE FROM A WORK INCENTIVE PROJECT THAT HIS
EFFECTIVE PARTICIPATION IS PRECLUDED." 

/22/  SEE BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 15, CITING
U.S. DEPT. OF LABOR, MANPOWER ADMINISTRATION, CONTRACT NO. 36 - 2 -
0001 - 188, MODIFICATION NO. 3, JUNE 30, 1972.  THE GOVERNMENT CONTENDS
FURTHER THAT "THE CURRENT LEVEL OF WIN FUNDING IS SUCH THAT NO MORE
THAN ONE-FIFTH OF THE WIN REGISTRANTS WILL RECEIVE THE FULL JOB
TRAINING AND PLACEMENT ASSISTANCE CONTEMPLATED BY THE ACT."  IBID. 

/23/  BRIEF FOR APPELLANTS N. Y. STATE DEPTS.  38, 17. 

/24/  BRIEF FOR CALIFORNIA AS AMICUS CURIAE 3. 

/25/  BRIEF FOR APPELLANTS N. Y. STATE DEPTS.  15; APP. 192. 
APPELLANTS CLAIM FURTHER THAT FROM JANUARY TO JUNE 1972, "THERE WERE
2,657 JOB PLACEMENTS UNDER THE WIN PROGRAM," AND 5,323 PLACEMENTS UNDER
THE WORK RULES.  ID., AT 18.  THESE FIGURES MUST BE QUALIFIED, HOWEVER,
WITH THE OBSERVATION THAT MANY OF THE JOB PLACEMENTS ARE TEMPORARY;
MANY OF THOSE PLACED UNDER THE WORK RULES MAY HAVE BEEN RECIPIENTS OF
FORMS OF ASSISTANCE OTHER THAN AFDC (WHILE THE NUMBER OF WIN PLACEMENTS
COUNTS ONLY AFDC RECIPIENTS); AND THAT SINGLE RECIPIENTS MAY HAVE BEEN
REFERRED OR PLACED -- AND THUS STATISTICALLY TABULATED -- ON MORE THAN
ONE OCCASION.  SEE BRIEF FOR APPELLEES 33 - 36.  NONE OF THESE
OBSERVATIONS, HOWEVER, OBSCURES THE BASIC FACT THAT THE WORK RULES
MATERIALLY CONTRIBUTE TOWARD ATTAINMENT OF THE OBJECTIVE OF THE WIN
PROGRAM IN RESTORING EMPLOYABLE AFDC RECIPIENTS AS WAGE-EARNING MEMBERS
OF SOCIETY.  SEE 42 U.S.C. ^ 630 (1970 ED., SUPP. I). 

/26/  SEE BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 3, FILED BY
THE SOLICITOR GENERAL AND JOINED IN BY THE GENERAL COUNSEL OF HEW. 

/27/  IBID. 

/28/  EXCERPTS FROM DEPOSITIONS OF NELSON HOPPER, DIRECTOR OF THE
EMPLOYMENT SERVICE BUREAU OF THE NEW YORK STATE DEPT. OF LABOR, AND
GEORGE DEMMON, SENIOR EMPLOYMENT COUNSELLOR, ERIE COUNTY DEPT. OF
SOCIAL SERVICES, APP. 226, 234.  SEE ALSO BRIEF FOR APPELLANTS N. Y.
STATE DEPTS.  17, AND TR. OF ORAL ARG. 7. 

/29/  IN CONSIDERING THE QUESTION OF POSSIBLE CONFLICT BETWEEN THE
STATE AND FEDERAL WORK PROGRAMS, THE COURT BELOW WILL TAKE INTO ACCOUNT
OUR PRIOR DECISIONS.  CONGRESS "HAS GIVEN THE STATES BROAD DISCRETION,"
AS TO THE AFDC PROGRAM, JEFFERSON V. HACKNEY, 406 U.S. 535, 545 (1972);
SEE ALSO DANDRIDGE V. WILLIAMS, 397 U.S., AT 478; KING V. SMITH, 392
U.S. 309, 318 - 319 (1968), AND "(SO LONG AS THE STATE'S ACTIONS ARE
NOT IN VIOLATION OF ANY SPECIFIC PROVISION OF THE CONSTITUTION OR THE
SOCIAL SECURITY ACT," THE COURTS MAY NOT VOID THEM.  JEFFERSON, SUPRA,
AT 541.  CONFLICTS, TO MERIT JUDICIAL RATHER THAN COOPERATIVE FEDERAL
STATE RESOLUTION, SHOULD BE OF SUBSTANCE AND NOT MERELY TRIVIAL OR
INSUBSTANTIAL.  BUT IF THERE IS A CONFLICT OF SUBSTANCE AS TO
ELIGIBILITY PROVISIONS, THE FEDERAL LAW OF COURSE MUST CONTROL.  KING
V. SMITH, SUPRA; TOWNSEND V. SWANK, 404 U.S. 282 (1971); CARLESON V.
REMILLARD, 406 U.S. 598 (1972). 

[[DOP 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

BECAUSE THE COURT TODAY IGNORES A FUNDAMENTAL RULE FOR INTERPRETING
THE SOCIAL SECURITY ACT, I MUST RESPECTFULLY DISSENT.  AS WE SAID IN
TOWNSEND V. SWANK, 404 U.S. 282, 286 (1971), "IN THE ABSENCE OF
CONGRESSIONAL AUTHORIZATION FOR THE EXCLUSION CLEARLY EVIDENCED FROM
THE SOCIAL SECURITY ACT OR ITS LEGISLATIVE HISTORY, A STATE ELIGIBILITY
STANDARD THAT EXCLUDES PERSONS ELIGIBLE FOR ASSISTANCE UNDER FEDERAL
AFDC STANDARDS VIOLATES THE SOCIAL SECURITY ACT AND IS THEREFORE
INVALID UNDER THE SUPREMACY CLAUSE." 

[[HC424'(ORIGINAL DOCUMENT PAGE 424)'  SEE ALSO KING V. SMITH, 392
U.S. 309 (1968); CARLESON V. REMILLARD, 406 U.S. 598, 600 (1972).  THE
NEW YORK WORK RULES FALL SQUARELY WITHIN THIS STATEMENT; THEY CLEARLY
EXCLUDE PERSONS ELIGIBLE FOR ASSISTANCE UNDER FEDERAL STANDARDS, AND IT
COULD HARDLY BE MAINTAINED THAT THEY DID NOT IMPOSE ADDITIONAL
CONDITIONS OF ELIGIBILITY.  /1/  FOR EXAMPLE, UNDER FEDERAL STANDARDS,
IT IS IRRELEVANT TO A DETERMINATION OF ELIGIBILITY THAT A RECIPIENT HAS
OR HAS NOT FILED EVERY TWO WEEKS A CERTIFICATE FROM THE LOCAL
EMPLOYMENT OFFICE THAT NO SUITABLE EMPLOYMENT OPPORTUNITITES ARE
AVAILABLE, YET UNDER THE WORK RULES, A RECIPIENT WHO FAILS TO FILE SUCH
A CERTIFICATE IS "DEEMED" TO HAVE REFUSED TO ACCEPT SUITABLE
EMPLOYMENT, AND SO IS NOT ELIGIBLE FOR ASSISTANCE.  N. Y. SOC. SERV.
LAW ^ 131 (4) (A) (SUPP. 1971 - 1972).  /2/  THUS, ACCORDING TO THE
RULES OF INTERPRETATION WE HAVE HERETOFORE FOLLOWED, THE PROPER INQUIRY
IS WHETHER THE SOCIAL SECURITY ACT OR ITS LEGISLATIVE HISTORY CLEARLY
SHOWS CONGRESSIONAL AUTHORIZATION FOR STATE EMPLOYMENT REQUIREMENTS
OTHER THAN THOSE INVOLVED IN THE FEDERAL WORK INCENTIVE PROGRAM.  /3/ 

THE ANSWER IS THAT NEITHER THE ACT NOR ITS LEGISLATIVE HISTORY SHOWS
SUCH AN AUTHORIZATION. 

[[HC425'(ORIGINAL DOCUMENT PAGE 425)'  THE ONLY RELEVANT WORK
RELATED CONDITIONS OF ELIGIBILITY IN THE ACT ARE FOUND AT 42 U.S.C. ^
602 (A) (19) (1970 ED., SUPP. I).  IN ADDITION TO EXEMPTING CERTAIN
PERSONS FROM REGISTRATION FOR AND PARTICIPATION IN THE FEDERAL WIN
PROGRAM, /4/  THE ACT PERMITS STATES TO DISREGARD THE NEEDS OF PERSONS
OTHERWISE ELIGIBLE FOR ASSISTANCE WHO "HAVE REFUSED WITHOUT GOOD CAUSE
TO PARTICIPATE UNDER A WORK INCENTIVE PROGRAM . . . OR . . . TO ACCEPT
EMPLOYMENT IN WHICH HE IS ABLE TO ENGAGE." 

[[HC426'(ORIGINAL DOCUMENT PAGE 426)'  42 U.S.C. ^ 602 (A) (19) (F)
(1970 ED., SUPP. I).  THE ACT THUS MAKES ACTUAL REFUSAL TO PARTICIPATE
IN A WIN PROGRAM OR TO ACCEPT EMPLOYMENT A PERMISSIBLE GROUND FOR
DENYING ASSISTANCE.  IN CONTRAST, NEW YORK HAS ADOPTED THE NONE-TOO
SUBTLE TECHNIQUE OF "DEEMING" PERSONS NOT TO HAVE ACCEPTED EMPLOYMENT
BECAUSE THEY HAVE NOT, FOR EXAMPLE, OBTAINED A CERTAIN CERTIFICATE FROM
THE LOCAL EMPLOYMENT OFFICE EVERY TWO WEEKS.  "DEEMING" IS A FAMILIAR
LEGAL DEVICE TO EVADE APPLICABLE REQUIREMENTS BY SAYING THAT THEY HAVE
BEEN SATISFIED WHEN THE HAVE NOT IN FACT BEEN SATISFIED.  BUT THE
FEDERAL REQUIREMENT WHICH THE STATE MAY NOT ALTER WITHOUT CLEAR
CONGRESSIONAL AUTHORIZATION, /5/  REQUIRES AN ACTUAL REFUSAL TO
PARTICIPATE IN A WIN PROGRAM OR TO ACCEPT EMPLOYMENT, NOT A REFUSAL TO
PARTICIPATE IN SOME OTHER PROGRAM OR A FICTITIOUS REFUSAL OF
EMPLOYMENT.  /6/ 

THE LEGISLATIVE HISTORY OF THE SOCIAL SECURITY ACT CONFIRMS THIS
INTERPRETATION, FOR WHENEVER CONGRESS LEGISLATED WITH RESPECT TO WORK
REQUIREMENTS, IT FOCUSED ON ACTUAL REFUSALS TO ACCPET EMPLOYMENT OR TO
PARTICIPATE IN CERTAIN SPECIAL PROGRAMS CLEARLY AUTHORIZED BY
CONGRESS. 

[[HC427'(ORIGINAL DOCUMENT PAGE 427)'  AT NO TIME HAS CONGRESS
AUTHORIZED STATES TO ADOPT OTHER WORK-REFERRAL PROGRAMS OR TO MAKE
REFUSAL TO PARTICIPATE IN SUCH PROGRAMS A CONDITION OF ELIGIBILITY,
EVEN UNDER THE GUISE OF "DEEMING" SUCH A REFUSAL A REFUSAL TO ACCEPT
EMPLOYMENT. 

AT ITS INCEPTION, THE PROGRAM OF AID TO DEPENDENT CHILDREN WAS
DESIGNED TO LESSEN SOMEWHAT THE BURDEN OF SUPPORTING SUCH CHILDREN. 
THE PROGRAM PROVIDED ASSISTANCE TO CHILDREN WHO HAD BEEN DEPRIVED OF
PARENTAL SUPPORT BY REASON OF THE ABSENCE OF A PARENT.  49 STAT. 629
(1935).  ASSISTANCE WAS PROVIDED TO SUPPLY THE NEEDS OF SUCH CHILDREN,
THUS "RELEASING THE PARENT) FROM THE WAGE-EARNING ROLE."  H. R. DOC.
NO. 81, 74TH CONG., 1ST SESS., 30 (1935).  SEE ALSO H. R. REP. NO. 615,
74TH CONG., 1ST SESS., 10 (1935).  THUS, THE PROGRAM'S PURPOSES WERE IN
MANY WAYS INCONSISTENT WITH A REQUIREMENT THAT THE PARENT LEAVE THE
HOME TO ACCEPT EMPLOYMENT.  YET, IN OPERATION, THE ORIGINAL PROGRAM
FAILED TO PROVIDE SUFFICIENT INDUCEMENT FOR THE PARENT TO REMAIN AT
HOME, SINCE THE AMOUNT OF ASSISTANCE WAS MEASURED SOLELY BY THE CHILD'S
NEEDS.  IN ORDER FURTHER TO RELIEVE THE PRESSURES ON THE PARENT TO
LEAVE THE HOME AND ACCEPT WORK, CONGRESS AMENDED THE ACT IN 1950 SO
THAT THE AID WOULD INCLUDE PAYMENTS "TO MEET THE NEEDS OF THE RELATIVE
WITH WHOM ANY DEPENDENT CHILD IS LIVING."  42 U.S.C. ^ 606 (B) (1). 

UNTIL 1961, THEN, THE SOLE EMPHASIS OF THE SOCIAL SECURITY ACT'S
PROVISIONS FOR ASSISTANCE TO DEPENDENT CHILDREN WAS ON PRESERVING THE
INTEGRITY OF THE FAMILY UNIT.  /7/  IN THAT YEAR, CONGRESS EXPANDED THE
DEFINITION OF DEPENDENT CHILD TO INCLUDE CHILDREN DEPRIVED OF PARENTAL
SUPPORT BY REASON OF THE UNEMPLOYMENT OF THE PARENT. 

[[HC428'(ORIGINAL DOCUMENT PAGE 428)'  42 U.S.C. ^ 607.  FAMILIES WITH
TWO PARENTS PRESENT COULD, FOR THE FIRST TIME, RECIEVE ASSISTANCE, AND
ONE PARENT COULD LEAVE THE HOME TO WORK WITHOUT IMPAIRING THE INTEGRITY
OF THE FAMILY UNIT.  CONGRESS THEREFORE REQUIRED STATES PARTICIPATING
IN THE PROGRAM FOR AID TO FAMILIES WITH AN UNEMPLOYED PARENT TO DENY
ASSISTANCE UNDER THIS PROVISION TO INDIVIDUALS WHO REFUSED TO ACCEPT
BONA FIDE OFFERS OF EMPLOYMENT.  PUB. L. 87 - 31, 75 STAT. 76 (1961). 
REFUSAL OF ACTUAL OFFERS OF EMPLOYMENT WAS CLEARLY THE CONTEMPLATED
CONDITION.  SEE S. REP. NO. 165, 87TH CONG., 1ST SESS., 3 (1961). 
CONGRESS THEN DEVELOPED THIS CONCEPT, PERMITTING STATES TO ESTABLISH
"COMMUNITY WORK AND TRAINING PROGRAMS" OF WORK ON PUBLIC PROJECTS, PUB.
L. 87 - 543, ^ 105, 76 STAT. 186, REPEALED BY PUB. L. 90 - 248, 81
STAT. 892.  REFUSAL TO ACCEPT A WORK ASSIGNMENT ON SUCH A PROJECT
WITHOUT GOOD CAUSE WOULD BE A GROUND FOR DENIAL OF PUBLIC ASSISTANCE. 
SEE H. R. REP. NO. 1414, 87TH CONG., 2D SESS., 15 (1962).     WHEN
CONGRESS ESTABLISHED THE WORK INCENTIVE PROGRAM, IT DID NOT ABANDON ITS
PREVIOUS POLICIES.  RECIPIENTS OF PUBLIC ASSISTANCE COULD BE REQUIRED
ONLY TO ACCEPT BONA FIDE OFFERS OF EMPLOYMENT OR PLACEMENT IN SPECIFIED
PROGRAMS.  THERE IS NO INDICATION WHATSOEVER IN THE LEGISLATIVE HISTORY
THAT CONGRESS INTENDED TO PERMIT STATES TO DENY ASSISTANCE BECAUSE
POTENTIAL RECIPIENTS HAD REFUSED TO PARTICIPATE IN PROGRAMS NOT
SUPERVISED BY THE SECRETARY OF LABOR, AS WIN PROGRAMS ARE.  THE
PARAMETERS OF THE WIN PROGRAM WERE DESIGNED TO ACCOMMODATE CONGRESS'
DUAL INTERESTS IN GUARANTEEING THE INTEGRITY OF THE FAMILY AND IN
MAXIMIZING THE POTENTIAL FOR EMPLOYMENT OF RECIPIENTS OF PUBLIC
ASSISTANCE.  WITHOUT CAREFUL FEDERAL SUPERVISION, OF THE SORT
CONTEMPLATED BY THE DELEGATION TO THE SECRETARY OF LABOR TO ESTABLISH
TESTING AND COUNSELING SERVICES AND TO REQUIRE THAT STATES DESIGN
EMPLOYABILITY PLANS, 81 STAT. 885, STATE WORK PROGRAMS MIGHT UPSET THE
ACCOMMODATION THAT CONGRESS SOUGHT. 

[[HC429'(ORIGINAL DOCUMENT PAGE 429)'  THE WORK INCENTIVE PROGRAM
WAS THUS A CAREFULLY COORDINATED SYSTEM, WHOSE INDIVIDUAL PARTS FIT
INTO AN INTEGRATED WHOLE.  IT IS HARDLY SURPRISING THAT CONGRESS DID
NOT EXPRESSLY OR IMPLIEDLY AUTHORIZE STATES TO DEVELOP INDEPENDENT WORK
PROGRAMS, SINCE THE WIN PROGRAM REPRESENTED CONGRESS' RECOGNITION THAT
SUCH PROGRAMS HAD TO BE KEPT UNDER CAREFUL SCRUTINY IF THE VARIETY OF
GOALS CONGRESS SOUGHT TO PROMOTE WERE TO BE ACHIEVED.  /8/  I BELIEVE
THAT THE COURT SERIOUSLY MISCONCEIVES THE PURPOSES OF THE FEDERAL
PROGRAMS OF PUBLIC ASSISTANCE, IN ITS APPARENT BELIEF THAT CONGRESS HAD
THE SOLE PURPOSE OF PROMOTING WORK OPPORTUNITIES, A PURPOSE THAT
PRECLUDING ADDITIONAL STATE PROGRAMS WOULD NEGATE.  ANTE, AT 418 -
420. 

INSTEAD, CONGRESS HAS CONSISTENTLY INDICATED ITS DESIRE TO ADOPT
PROGRAMS THAT WILL ENHANCE THE EMPLOYABILITY OF RECIPIENTS OF PUBLIC
ASSISTANCE WHILE MAINTAINING THE INTEGRITY OF FAMILIES RECEIVING
ASSISTANCE. 

[[HC430'(ORIGINAL DOCUMENT PAGE 430)'  A WORK-REFERRAL PROGRAM CAN
DO THIS ONLY IF IT IS REGUALTED, BOTH AS TO THE PERSONS REQUIRED TO
PARTICIPATE AND AS TO THE TERMS ON WHICH THEY MUST PARTICIPATE.  AND
CONGRESS HAS CONSISTENTLY RECOGNIZED THAT SUCH REGULATION REQUIRES
CLOSE FEDERAL SUPERVISION OF WORK PROGRAMS.  IN MY VIEW, THIS COURSE OF
LEGISLATION, WHICH IS NOT MENTIONED BY THE COURT, IS NEITHER
"AMBIGUOUS," "FRAGMENTARY," NOR "PERIPHERAL," ANTE, AT 415, 416, 417. 
NO MATTER HOW IT IS VIEWED, HOWEVER, ONE CANNOT FAIRLY SAY THAT THE
SOCIAL SECURITY ACT OR ITS LEGISLATIVE HISTORY CLEARLY EVIDENCES
CONGRESSIONAL AUTHORIZATION FOR MAKING PARTICIPATION IN STATE WORK
PROGRAMS A CONDITION OF ELIGIBILITY FOR PUBLIC ASSISTANCE.  /9/ 

THE POLICY OF CLEAR STATEMENT /10/  IN TOWNSEND SERVES A USEFUL
PURPOSE. 

[[HC431'(ORIGINAL DOCUMENT PAGE 431)'  IT INFORMS LEGISLATORS THAT,
IF THEY WISH TO ALTER THE ACCOMMODATIONS PREVIOUSLY ARRIVED AT IN AN
ACT OF MAJOR IMPORTANCE, THEY MUST INDICATE CLEARLY THAT WISH, SINCE
WHAT MAY APPEAR TO BE MINOR CHANGES OF NARROW SCOPE MAY IN FACT HAVE
RAMIFICATIONS THROUGHOUT THE ADMINISTRATION OF THE ACT.  A POLICY OF
CLEAR STATEMENT INSURES THAT CONGRESS WILL CONSIDER THOSE
RAMIFICATIONS, /11/  BUT ONLY IF IT IS REGULARLY ADHERED TO. 

FINALLY, IT IS PARTICULARLY APPROPRIATE TO REQUIRE CLEAR STATEMENT
OF AUTHORIZATION TO IMPOSE ADDITIONAL CONDITIONS OF ELIGIBILITY FOR
PUBLIC ASSISTANCE.  MYTHS ABOUND IN THIS AREA.  IT IS WIDELY YET
ERRONEOUSLY BELIEVED, FOR EXAMPLE, THAT RECIPIENTS OF PUBLIC ASSISTANCE
HAVE LITTLE DESIRE TO BECOME SELF-SUPPORTING. 

[[HC432'(ORIGINAL DOCUMENT PAGE 432)'  SEE, E. G., L. GOODWIN, DO
THE POOR WANT TO WORK?  5, 51 - 52, 112 (1972).  BECAUSE THE RECIPIENTS
OF PUBLIC ASSISTANCE GENERALLY LACK SUBSTANTIAL POLITICAL INFLUENCE,
STATE LEGISLATORS MAY FIND IT EXPEDIENT TO ACCEDE TO PRESSURES
GENERATED BY MISCONCEPTIONS.  IN ORDER TO LESSEN THE POSSIBILITY THAT
ERRONEOUS BELIEFS WILL LEAD STATE LEGISLATORS TO SINGLE OUT POLITICALLY
UNPOPULAR RECIPIENTS OF ASSISTANCE FOR HARSH TREATMENT, CONGRESS MUST
CLEARLY AUTHORIZE STATES TO IMPOSE CONDITIONS OF ELIGIBILITY DIFFERENT
FROM THE FEDERAL STANDARDS.  AS WE OBSERVED IN KING V. SMITH, 392 U.S.
309, 318 - 319 (1968), THIS RULE LEAVES THE STATES WITH "CONSIDERABLE
LATITUDE IN ALLOCATING THEIR AFDC RESOURCES, SINCE EACH STATE IS FREE
TO SET ITS OWN STANDARD OF NEED AND TO DETERMINE THE LEVEL OF BENEFITS
BY THE AMOUNT OF FUNDS IT DEVOTES TO THE PROGRAM."  THE COURT TODAY
QUOTES THIS OBSERVATION BUT MISSES ITS IMPORT.  THE STATES HAVE
LATITUDE TO ADJUST BENEFITS IN THE TWO WAYS MENTIONED, BUT NOT BY
IMPOSING ADDITIONAL CONDITIONS OF ELIGIBILITY.  WHEN ACROSS-THE-BOARD
ADJUSTMENTS LIKE THOSE ARE MADE, LEGISLATORS CANNOT SINGLE OUT
ESPECIALLY UNPOPULAR GROUPS FOR DISCRIMINATORY TREATMENT.  /12/ 

FOR THESE REASONS, I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT
COURT. 

[[DFN 

/1/  APPELLANTS STATE THAT THE WORK RULES DO NOT "CONSTITUTE AN
ADDITIONAL CONDITION OF ELIGIBILITY FOR PUBLIC ASSISTANCE."  REPLY
BRIEF FOR APPELLANTS N. Y. STATE DEPTS.  9.  THE ARGUMENTS THEY
PRESENT, HOWEVER, RELATE ENTIRELY TO THE PURPORTED CONGRESSIONAL
AUTHORIZATION FOR ADDITIONAL CONDITIONS OF THIS SORT. 

/2/  THE FEDERAL CONDITIONS OF ELIGIBILITY RELATING TO REGISTRATION
FOR EMPLOYMENT ARE FOUND AT 42 U.S.C. ^ 602 (A) (19) (1970 ED., SUPP.
I). 

/3/  THE UNITED STATES, AS AMICUS CURIAE, ARGUES THAT THE RULE
STATED IN TOWNSEND V. SWANK, 404 U.S. 282 (1971), DOES NOT FAIRLY
CHARACTERIZE THE COURSE OF OUR INTERPRETATION OF THE SOCIAL SECURITY
ACT.  IT RELIES PRIMARILY ON THE COURT'S DECISION IN WYMAN V. JAMES,
400 U.S. 309 (1971).  BUT, FOR REASONS THAT ESCAPED ME AT THE TIME, SEE
ID., AT 345 N. 7, THE COURT DID NOT ADDRESS THE STATUTORY ARGUMENT. 
WYMAN DOES NOT, THEREFORE, EXPRESS ANY LIMITATION ON THE RULE IN
TOWNSEND.  SIMILARLY, OUR SUMMARY AFFIRMANCE IN SNELL V. WYMAN, 393
U.S. 323 (1969), WHERE THE DISTRICT COURT DID NOT HAVE BEFORE IT OUR
OPINION IN KING V. SMITH, 392 U.S. 309 (1968), IS AT LEAST OFFSET BY
SUMMARY AFFIRMANCE IN CARLESON V. TAYLOR, 404 U.S. 980 (1971), JURAS V.
MEYERS, 404 U.S. 803 (1971), AND WEAVER V. DOE, 404 U.S. 987 (1971). 

THE UNITED STATES' ARGUMENT FROM AUTHORITY IS WEAK, AND ITS ARGUMENT
AS A MATTER OF LOGIC IS EVEN WEAKER.  THE UNITED STATES SUGGESTS THAT,
WHILE STATES MAY NOT NARROW THE CLASS OF PERSONS ELIGIBLE FOR
ASSISTANCE UNDER FEDERAL STANDARDS, THEY MAY IMPOSE ADDITIONAL
CONDITIONS OF ELIGIBILITY IN PURSUIT OF INDEPENDENT STATE POLICIES. 
THIS DISTINCTION WILL NOT WITHSTAND ANALYSIS, FOR IT MAKES DECISION
TURN ON MEANINGLESS VERBAL TRICKS.  ONE COULD JUST AS EASILY FIND AN
INDEPENDENT STATE POLICY IN TOWNSEND AS A NARROWING OF THE CLASS OF
ELIGIBLE PERSONS: THE STATE MIGHT HAVE A POLICY OF MINIMIZING SUBSIDIES
TO PERSONS WITH A CLEAR PROSPECT OF FUTURE INCOME WELL ABOVE THE
POVERTY LEVEL, BY DENYING ASSISTANCE TO PERSONS ATTENDING FOUR-YEAR
COLLEGES WHILE GRANTING IT TO THOSE ATTENDING VOCATIONAL TRAINING
SCHOOLS.  SUCH A SYSTEM OF SUBSIDIES WOULD ALMOST CERTAINLY BE HELD
CONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE, AND THE POSITION OF THE
UNITED STATES SEEMS TO BE THAT STATES MAY IMPOSE CONDITIONS OF
ELIGIBILITY, NOT SQUARELY IN CONFLICT WITH FEDERAL STANDARDS, IN THE
PURSUIT OF SOME CONSTITUTIONAL STATE INTEREST. 

/4/  FOR EXAMPLE, NO CHILD UNDER 16 OR ATTENDING SCHOOL FULL TIME
NEED REGISTER.  42 U.S.C. ^ 602 (A) (19) (A) (I) (1970 ED., SUPP. I). 
I TAKE IT THAT THE COURT WOULD FIND A CONFLICT "OF SUBSTANCE," ANTE, AT
423 N. 29, BETWEEN THIS PROVISION AND A STATE WORK REQUIREMENT
APPLICABLE TO CHILDREN UNDER 16.  FOR THE LEGISLATIVE HISTORY IS CLEAR
THAT CONGRESS, IN DEFINING THE WORK-RELATED CONDITIONS OF ELIGIBILITY,
"SPELLED) OUT THOSE PEOPLE WE THINK SHOULD NOT BE REQUIRED TO GO TO
WORK," AS SENATOR LONG PUT IT.  113 CONG. REC. 32593 (1967).  SEE ALSO
S. REP. NO. 744, 90TH CONG., 1ST SESS., 26.  THE UNITED STATES'
POSITION WOULD BE, I ASSUME, THAT SUCH A PROVISION WOULD NARROW THE
CLASS OF PERSONS ELIGIBLE FOR ASSISTANCE. 

/5/  APPELLANTS ARGUE THAT "THE PROVISION OF SECTION 602 (A) (10)
THAT AID BE FURNISHED 'TO ALL ELIGIBLE INDIVIDUALS' WHEN READ WITHIN
THE CONTEXT OF THE SOCIAL SECURITY ACT MEANS INDIVIDUALS 'ELIGIBLE'
UNDER STATE REQUIREMENTS, NOT FEDERAL."  REPLY BRIEF FOR APPELLANTS N.
Y. STATE DEPTS.  13.  WE EXPRESSLY REJECTED THIS ARGUMENT IN TOWNSEND,
404 U.S., AT 286. 

/6/  THE STATES MAY, OF COURSE, ADOPT PROCEDURES NECESSARY TO INSURE
THAT OFFERS OF EMPLOYMENT ARE TRANSMITTED TO RECIPIENTS OF PUBLIC
ASSISTANCE.  IT HARDLY NEEDS EXTENDED ARGUMENT, HOWEVER, TO SHOW THAT
THE NEW YORK WORK RULES, TAKEN AS A WHOLE, ARE NOT NECESSARY TO DO
THAT. 

/7/  IN 1956, CONGRESS REQUIRED STATES TO ADOPT PLANS TO PROVIDE
SOCIAL SERVICES TO STRENGTHEN FAMILY LIFE.  PUB. L. 880 SEC. 312, 70
STAT. 848. 

/8/  THE ORIGINAL PROPOSAL FOR A WORK INCENTIVE PROGRAM WOULD HAVE
PERMITTED A STATE TO OPERATE COMMUNITY WORK AND TRAINING PROGRAMS ONLY
IF A FEDERAL WIN PROGRAM WERE NOT OPERATED IN THE STATE.  H. R. 5710,
90TH CONG., 1ST SESS., ^ 204 (A).  THUS, EITHER A WIN PROGRAM OR A
STATE PROGRAM COULD OPERATE WITHIN A STATE, BUT NOT BOTH.  IN THE FINAL
VERSION, THE PRE-EXISTING AUTHORIZATION FOR COMMUNITY WORK AND TRAINING
PROGRAMS WAS ELIMINATED, AND THE FEDERAL WIN PROGRAM WAS TO BE
IMPLEMENTED IN EVERY STATE.  AGAIN, CONGRESS RECOGNIZED THAT FEDERAL
AND STATE WORK PROGRAMS COULD NOT COEXIST. 

THE 1971 AMENDMENTS TO THE WIN PROGRAM, PUB. L. 92 - 223, 85 STAT.
802, FURTHER DEMONSTRATE CONGRESS' DESIRE TO HAVE FEDERAL CONTROL OF
WORK REQUIREMENTS.  EACH STATE MUST ESTABLISH A "SEPARATE
ADMINISTRATIVE UNIT" TO PROVIDE SOCIAL SERVICES ONLY IN CONNECTION WITH
WIN.  42 U.S.C. ^ 602 (A) (19) (G) (1970 ED., SUPP. I).  IT WOULD BE
ANOMALOUS FOR CONGRESS TO REQUIRE THE STATES TO DEVOTE SUBSTANTIAL
RESOURCES TO SUCH A UNIT IN CONNECTION WITH THE WIN PROGRAM, AND YET TO
PERMIT THE STATES TO OPERATE INDEPENDENT WORK PROGRAMS USING FEDERAL
FUNDS WITHOUT PROVIDING THE SPECIAL SERVICES THAT CONGRESS THOUGHT SO
IMPORTANT. 

/9/  IT IS UNNECESSARY FOR ME TO DISCUSS AT ANY LENGTH THE COURT'S
ANALYSIS OF THE PRE-EMPTION PROBLEM.  I NOTE, AS THE COURT DOES, ANTE,
AT 411 N. 9, THAT THIS CASE DOES NOT PRESENT THE CLASSIC QUESTION OF
PRE-EMPTION, THAT IS, DOES THE ENACTMENT OF A STATUTE BY CONGRESS
PRECLUDE STATE ATTEMPTS TO REGULATE THE SAME SUBJECT?  THERE IS NO
QUESTION THAT NEW YORK MAY IMPOSE WHATEVER WORK REQUIREMENTS IT WISHES,
CONSISTENT ONLY WITH CONSTITUTIONAL LIMITATIONS, WHEN IT GIVES PUBLIC
ASSISTANCE SOLELY FROM STATE FUNDS.  SEE ANTE, AT 412.  THE QUESTION
HERE RELATES TO THE CONDITIONS THAT CONGRESS HAS PLACED ON STATE
PROGRAMS SUPPORTED BY FEDERAL FUNDS.  THE DISTINCTION IS NOT WITHOUT
IMPORTANCE, FOR IT MAKES INAPPOSITE THE STRICTURES IN OUR EARLIER CASES
AND RELIED ON BY THE COURT, AGAINST LIGHTLY INTERFERING WITH STATE
PROGRAMS.  ANTE, AT 413 - 414.  FOR WE MUST, OF COURSE, BE CAUTIOUS
WHEN WE PREVENT A STATE FROM REGULATING IN AN AREA WHERE, IN THE
ABSENCE OF CONGRESSIONAL ACTION, IT HAS IMPORTANT INTERESTS.  HOLDING
THAT THE FEDERAL WIN PROGRAM IS THE EXCLUSIVE METHOD OF IMPOSING WORK
REQUIREMENTS IN CONJUNCTION WITH FEDERALLY-FUNDED PROGRAMS OF PUBLIC
ASSISTANCE WOULD HAVE NO SUCH IMPACT; NEW YORK WOULD REMAIN FREE TO
OPERATE PUBLIC ASSISTANCE PROGRAMS WITH STATE FUNDS, WITH WHATEVER WORK
REQUIREMENTS IT CHOSE. 

/10/  SEE H. HART & A. SACKS, THE LEGAL PROCESS 1240 (TENT.  ED.
1958). 

/11/  IN THIS CONNECTION, I CANNOT LET PASS WITHOUT COMMENT THE
EXTRAORDINARY USE THE COURT MAKES OF LEGISLATIVE "HISTORY," IN RELYING
ON EXCHANGES ON THE FLOOR OF THE HOUSE AND SENATE THAT OCCURRED AFTER
THE DECISION BY THE DISTRICT COURT IN THIS CASE.  ANTE, AT 416 - 417,
N. 19.  ALTHOUGH RELIANCE ON FLOOR EXCHANGES HAS BEEN CRITICIZED IN
THIS COURT, SCHWEGMANN BROS. V. CALVERT DISTILLERS CORP., 341 U.S. 384,
395 - 397 (1951) (JACKSON, J., CONCURRING), THERE IS SOME FORCE TO THE
MORE GENERALLY ACCEPTED PROPOSITION THAT SUCH EXCHANGES, PARTICULARLY
WHEN SPONSORS OF A BILL OR COMMITTEE CHAIRMEN ARE INVOLVED, ARE
RELEVANT TO A DETERMINATION OF THE PURPOSE CONGRESS SOUGHT TO ACHIEVE
IN ENACTING THE BILL.  UNITED STATES V. ST. PAUL, M. & M. R. CO., 247
U.S. 310, 318 (1918).  FOR LEGISLATORS KNOW HOW LEGISLATIVE HISTORY IS
MADE, AND THEY OUGHT TO BE AWARE OF THE IMPORTANCE OF FLOOR EXCHANGES. 
IF THEY DISAGREE WITH THE INTERPRETATION PLACED ON THE BILL IN SUCH
EXCHANGES, THEY MAY OFFER AMENDMENTS OR VOTE AGAINST IT. THUS,
CONGRESS, IN ENACTING A STATUTE, MAY FAIRLY BE TAKEN TO HAVE ENDORSED
THE INTERPRETATIONS OFFERED IN SUCH EXCHANGES.  NONE OF THIS IS TRUE OF
POST-ENACTMENT FLOOR EXCHANGES, WHICH HAVE NO BEARING ON PENDING
LEGISLATION AND TO WHICH A DISINTERESTED LEGISLATOR MIGHT WELL PAY
SCANT ATTENTION.  IF SENATOR BUCKLEY AND REPRESENTATIVE CAREY WISHED TO
HAVE A CONGRESSIONAL EXPRESSION OF INTENT ON THE ISSUE OF PRE-EMPTION,
THEY WERE NOT BARRED FROM INTRODUCING LEGISLATION. 

/12/  THAT THE POSSIBILITY OF TREATMENT THAT IS SO DISCRIMINATORY AS
TO BE UNCONSTITUTIONAL IS NOT INSUBSTANTIAL IS SHOWN BY THE COURT'S
BRIEF DISCUSSION OF THE JURISDICTION OF THE DISTRICT COURT, ANTE, AT
412 N. 11.     JEAN M. COON, ASSISTANT SOLICITOR GENERAL OF NEW YORK,
ARGUED THE CAUSE FOR APPELLANTS IN BOTH CASES.  WITH HER ON THE BRIEFS
IN NO. 72 - 792 WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, AND RUTH
KESSLER TOCH, SOLICITOR GENERAL.  PHILIP C. PINSKY FILED A BRIEF FOR
APPELLANTS IN NO. 72 - 802. 

DENNIS R. YEAGER ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLEES IN
BOTH CASES. 

BRIEFS OF AMICI CURIAE URGING REVERSAL IN BOTH CASES WERE FILED BY
SOLICITOR GENERAL GRISWOLD, WILMOT R. HASTINGS, AND ST. JOHN BARRETT
FOR THE UNITED STATES, AND BY EVELLE J. YOUNGER, ATTORNEY GENERAL,
ELIZABETH PALMER, ASSISTANT ATTORNEY GENERAL, AND JOHN J. KLEE, JR.,
DEPUTY ATTORNEY GENERAL, FOR THE STATE OF CALIFORNIA. 

STEVEN J. COLE AND HENRY A FREEDMAN FILED A BRIEF FOR THE NATIONAL
WELFARE RIGHTS ORGANIZATION ET AL. AS AMICI CURIAE URGING AFFIRMANCE IN
BOTH CASES. 
..END :





















CADY V. DOMBROWSKI 413 U.S. 433 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT 

     NO. 72 - 586.  ARGUED MARCH 21, 1973--DECIDED JUNE 21, 1973;
471 F.2D 280, REVERSED. 


    RESPONDENT HAD A ONE-CAR ACCIDENT NEAR A SMALL WISCONSIN TOWN,

  WHILE DRIVING A RENTED FORD.  THE POLICE HAD THE CAR TOWED TO A

  GARAGE SEVEN MILES FROM THE POLICE STATION, WHERE IT WAS LEFT

  UNGUARDED OUTSIDE.  RESPONDENT WAS ARRESTED FOR DRUNKEN DRIVING. 

  EARLY THE NEXT DAY, AN OFFICER, LOOKING FOR A SERVICE REVOLVER

  WHICH RESPONDENT (WHO HAD IDENTIFIED HIMSELF AS A CHICAGO

  POLICEMAN) WAS THOUGHT TO POSSESS, MADE A WARRANTLESS SEARCH OF

  THE CAR AND FOUND IN THE TRUNK SEVERAL ITEMS, SOME BLOODIED,

  WHICH HE REMOVED.  LATER, ON RECEIPT OF ADDITIONAL INFORMATION

  EMANATING FROM RESPONDENT, A BLOOD-STAINED BODY WAS LOCATED ON

  RESPONDENT'S BROTHER'S FARM IN A NEARBY COUNTY.  THEREAFTER,

  THROUGH THE WINDOWS OF A DISABLED DODGE WHICH RESPONDENT HAD LEFT

  ON THE FARM BEFORE RENTING THE FORD, AN OFFICER OBSERVED OTHER

  BLOODIED ITEMS.  FOLLOWING ISSUANCE OF A SEARCH WARRANT,

  MATERIALS WERE TAKEN FROM THE DODGE, TWO OF WHICH (A SOCK AND

  FLOOR MAT) WERE NOT LISTED IN THE RETURN ON THE WARRANT AMONG THE

  ITEMS SEIZED.  RESPONDENT'S TRIAL FOR MURDER, AT WHICH ITEMS

  SEIZED FROM THE CARS WERE INTRODUCED IN EVIDENCE, RESULTED IN

CONVICTION WHICH WAS UPHELD ON APPEAL.  IN THIS HABEAS CORPUS

  ACTION, THE COURT OF APPEALS REVERSED THE DISTRICT COURT AND HELD

  THAT CERTAIN EVIDENCE AT THE TRIAL HAD BEEN UNCONSTITUTIONALLY

  SEIZED.  HELD: 

      1.  THE WARRANTLESS SEARCH OF THE FORD DID NOT VIOLATE THE

  FOURTH AMENDMENT AS MADE APPLICABLE TO THE STATES BY THE

  FOURTEENTH.  THE SEARCH WAS NOT UNREASONABLE SINCE THE POLICE HAD

  EXERCISED A FORM OF CUSTODY OF THE CAR, WHICH CONSTITUTED A

  HAZARD ON THE HIGHWAY, AND THE DISPOSITION OF WHICH BY RESPONDENT

  WAS PRECLUDED BY HIS INTOXICATED AND LATER COMATOSE CONDITION;

  AND THE REVOLVER SEARCH WAS STANDARD POLICE PROCEDURE TO PROTECT

  THE PUBLIC FROM A WEAPON'S POSSIBLY FALLING INTO IMPROPER HANDS. 

PRESTON V. UNITED STATES, 376 U.S. 364, DISTINGUISHED; HARRIS V.

  UNITED STATES, 390 U.S. 234, FOLLOWED.  PP. 439 - 448. 

     2.  THE SEIZURE OF THE SOCK AND FLOOR MAT FROM THE DODGE WAS

  NOT INVALID, SINCE THE DODGE, THE ITEM "PARTICULARLY DESCRIBED,"

  WAS THE SUBJECT OF A PROPER SEARCH WARRANT.  IT IS NOT

  CONSTITUTIONALLY SIGNIFICANT THAT THE SOCK AND MAT WERE NOT

  LISTED IN THE WARRANT'S RETURN, WHICH (CONTRARY TO THE ASSUMPTION

  OF THE COURT OF APPEALS) WAS NOT FILED PRIOR TO THE SEARCH, AND

  THE WARRANT WAS THUS VALIDLY OUTSTANDING AT THE TIME THE ARTICLES

  WERE DISCOVERED.  PP. 448 - 450. 

REHNQUIST, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS, STEWART, AND MARSHALL, JJ.,
JOINED, POST, P. 450. 

[[HC434'(ORIGINAL DOCUMENT PAGE 434)' 

OPINION OF THE COURT BY MR. JUSTICE REHNQUIST, ANNOUNCED BY MR.
JUSTICE BLACKMUN. 

RESPONDENT CHESTER J. DOMBROWSKI, WAS CONVICTED IN A WISCONSIN STATE
COURT OF FIRST DEGREE MURDER OF HERBERT MCKINNEY AND SENTENCED TO LIFE
IMPRISONMENT.  THE CONVICTION WAS UPHELD ON APPEAL, STATE V.
DOMBROWSKI, 44 WIS. 2D 486, 171 N. W. 2D 349 (1969), THE WISCONSIN
SUPREME COURT REJECTING RESPONDENT'S CONTENTION THAT CERTAIN EVIDENCE
ADMITTED AT THE TRIAL HAD BEEN UNCONSTITUTIONALLY SEIZED.  RESPONDENT
THEN FILED A PETITION FOR A WRIT OF HABEAS CORPUS IN FEDERAL DISTRICT
COURT, ASSERTING THE SAME CONSTITUTIONAL CLAIM.  THE DISTRICT COURT
DENIED THE PETITION BUT THE UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT REVERSED, HOLDING THAT ONE OF THE SEARCHES WAS
UNCONSTITUTIONAL UNDER PRESTON V. UNITED STATES, 376 U.S. 364 (1964),
AND THE OTHER UNCONSTITUTIONAL FOR UNRELATED REASONS. 

[[HC435'(ORIGINAL DOCUMENT PAGE 435)'  WE GRANTED CERTIORARI, 409
U.S. 1059 (1972). 

        I 

ON SEPTEMBER 9, 1969, RESPONDENT WAS A MEMBER OF THE CHICAGO,
ILLINOIS, POLICE FORCE AND EITHER OWNED OR POSSESSED A 1960 DODGE
AUTOMOBILE.  THAT DAY HE DROVE FROM CHICAGO TO WEST BEND, WISCONSIN,
THE COUNTY SEAT OF WASHINGTON COUNTY, LOCATED SOME HUNDRED-ODD MILES
NORTHWEST OF CHICAGO.  HE WAS IDENTIFIED AS HAVING BEEN IN TWO SMALL
TAVERNS IN THE SMALL OWN OF KEWASKUM, WISCONSIN, SEVEN MILES NORTH OF
WEST BEND, DURING THE LATE EVENING OF SEPTEMBER 9TH AND THE EARLY
MORNING OF SEPTEMBER 10TH.  AT SOME TIME BEFORE NOON ON THE 10TH,
RESPONDENT'S AUTOMOBILE BECAME DISABLED, AND HE HAD IT TOWED TO A FARM
OWNED BY HIS BROTHER IN FOND DU LAC COUNTY, WHICH ADJOINS WASHINGTON
COUNTY ON THE NORTH.  HE THEN DROVE BACK TO CHICAGO EARLY THAT
AFTERNOON WITH HIS BROTHER IN THE LATTER'S CAR. 

JUST BEFORE MIDNIGHT OF THE SAME DAY, RESPONDENT RENTED A MAROON
1967 FORD THUNDERBIRD AT O'HARE FIELD OUTSIDE CHICAGO, AND APPARENTLY
DROVE BACK TO WISCONSIN EARLY THE NEXT MORNING.  A TENANT ON HIS
BROTHER'S FARM SAW A CAR ANSWERING THE DESCRIPTION OF THE RENTED CAR
PULL ALONGSIDE THE DISABLED 1960 DODGE AT APPROXIMATELY 4 A. M. AT
APPROXIMATELY 9:30 A. M. ON SEPTEMBER 11TH, RESPONDENT PURCHASED TWO
TOWELS, ONE LIGHT BROWN AND THE OTHER BLUE, FROM A DEPARTMENT STORE IN
KEWASKUM. 

FROM 7 TO 10:15 P. M. OF THE 11TH, RESPONDENT WAS IN A STEAK HOUSE
OR TAVERN IN WEST BEND.  HE ATE DINNER AND ALSO DRANK, APPARENTLY QUITE
HEAVILY.  HE LEFT THE TAVERN AND DROVE THE 1967 THUNDERBIRD IN A
DIRECTION AWAY FROM WEST BEND TOWARD HIS BROTHER'S FARM.  ON THE WAY,
RESPONDENT HAD AN ACCIDENT, WITH THE THUNDERBIRD BREAKING THROUGH A
GUARD RAIL AND CRASHING INTO A BRIDGE ABUTMENT. 

[[HC436'(ORIGINAL DOCUMENT PAGE 436)'  A PASSING MOTORIST DROVE HIM
INTO KEWASKUM, AND, AFTER BEING LET OFF IN KEWASKUM, RESPONDENT
TELEPHONED THE POLICE.  TWO POLICE OFFICERS PICKED HIM UP AT A TAVERN
AND DROVE TO THE SCENE OF THE ACCIDENT.  ON THE WAY THE OFFICERS
NOTICED THAT RESPONDENT APPEARED TO BE DRUNK; HE OFFERED THREE
CONFLICTING VERSIONS OF HOW THE ACCIDENT OCCURRED. 

AT THE SCENE, THE POLICE OBSERVED THE 1967 THUNDERBIRD AND TOOK
VARIOUS MEASUREMENTS RELEVANT TO THE ACCIDENT.  RESPONDENT WAS, IN THE
OPINION OF THE OFFICERS, DRUNK.  HE HAD INFORMED THEM THAT HE WAS A
CHICAGO POLICE OFFICER.  THE WISCONSIN POLICEMENT BELIEVED THAT CHICAGO
POLICE OFFICERS WERE REQUIRED BY REGULATION TO CARRY THEIR SERVICE
REVOLVERS AT ALL TIMES.  AFTER CALLING A TOWTRUCK TO REMOVE THE
DISABLED THUNDERBIRD, AND NOT FINDING THE REVOLVER ON RESPONDENT'S
PERSON, ONE OF THE OFFICERS LOOKED INTO THE FRONT SEAT AND GLOVE
COMPARTMENT OF THAT CAR FOR RESPONDENT'S SERVICE REVOLVER.  NO REVOLVER
WAS FOUND.  THE WRECKER ARRIVED AND THE THUNDERBIRD WAS TOWED TO A
PRIVATELY OWNED GARAGE IN KEWASKUM, APPROXIMATELY SEVEN MILES FROM THE
WEST BEND POLICE STATION.  IT WAS LEFT OUTSIDE BY THE WRECKER, AND NO
POLICE GUARD WAS POSTED.  AT 11:33 P. M. ON THE 11TH RESPONDENT WAS
TAKEN DIRECTLY TO THE WEST BEND POLICE STATION FROM THE ACCIDENT SCENE,
AND, AFTER BEING INTERVIEWED BY AN ASSISTANT DISTRICT ATTORNEY, TO WHOM
RESPONDENT AGAIN STATED HE WAS A CHICAGO POLICEMAN, RESPONDENT WAS
FORMALLY ARRESTED FOR DRUNKEN DRIVING.  RESPONDENT WAS "IN A DRUNKEN
CONDITION" AND "INCOHERENT AT TIMES."  BECAUSE OF HIS INJURIES
SUSTAINED IN THE ACCIDENT, THE SAME TWO OFFICERS TOOK RESPONDENT TO A
LOCAL HOSPITAL.  HE LAPSED INTO AN UNEXPLAINED COMA, AND A DOCTOR,
FEARING THE POSSIBILITY OF COMPLICATIONS, HAD RESPONDENT HOSPITALIZED
OVERNIGHT FOR OBSERVATION.  ONE OF THE POLICEMEN REMAINED AT THE
HOSPITAL AS A GUARD, AND THE OTHER, OFFICER WEISS, DROVE AT SOME TIME
AFTER 2 A. M. ON THE 12TH TO THE GARAGE TO WHICH THE 1967 THUNDERBIRD
HAD BEEN TOWED AFTER THE ACCIDENT. 

[[HC437'(ORIGINAL DOCUMENT PAGE 437)' 

THE PURPOSE OF GOING TO THE THUNDERBIRD, AS DEVELOPED ON THE MOTION
TO SUPPRESS, WAS TO LOOK FOR RESPONDENT'S SERVICE REVOLVER.  WEISS
TESTIFIED THAT RESPONDENT DID NOT HAVE A REVOLVER WHEN HE WAS ARRESTED,
AND THAT THE WEST BEND AUTHORITIES WERE UNDER THE IMPRESSION THAT
CHICAGO POLICE OFFICERS WERE REQUIRED TO CARRY THEIR SERVICE REVOLVERS
AT ALL TIMES.  HE STATED THAT THE EFFORT TO FIND THE REVOLVER WAS
"STANDARD PROCEDURE IN OUR DEPARTMENT." 

WEISS OPENED THE DOOR OF THE THUNDERBIRD AND FOUND, ON THE FLOOR OF
THE CAR, A BOOK OF CHICAGO POLICE REGULATIONS AND, BETWEEN THE TWO
FRONT SEATS, A FLASHLIGHT WHICH APPEARED TO HAVE "A FEW SPOTS OF BLOOD
ON IT."  HE THEN OPENED THE TRUNK OF THE CAR, WHICH HAD BEEN LOCKED,
AND SAW VARIOUS ITEMS COVERED WITH WHAT WAS LATER DETERMINED TO BE TYPE
O BLOOD.  THESE INCLUDED A PAIR OF POLICE UNIFORM TROUSERS, A PAIR OF
GRAY TROUSERS, A NIGHTSTICK WITH THE NAME "DOMBROWSKI" STAMPED ON IT, A
RAINCOAT, A PORTION OF A CAR FLOOR MAT, AND A TOWEL.  THE BLOOD ON THE
CAR MAT WAS MOIST.  THE OFFICER REMOVED THESE ITEMS TO THE POLICE
STATION. 

WHEN, LATER THAT DAY, RESPONDENT WAS CONFRONTED WITH THE CONDITION
OF THE ITEMS DISCOVERED IN THE TRUNK, HE REQUESTED THE PRESENCE OF
COUNSEL BEFORE MAKING ANY STATEMENT.  AFTER CONFERRING WITH RESPONDENT,
A LAWYER TOLD THE POLICE THAT RESPONDENT "AUTHORIZED ME TO STATE HE
BELIEVED THERE WAS A BODY LYING NEAR THE FAMILY PICNIC AREA AT THE
NORTH END OF HIS BROTHER'S FARM." 

FOND DU LAC COUNTY POLICE WENT TO THE FARM AND FOUND, IN A DUMP, THE
BODY OF A MALE, LATER IDENTIFIED AS THE DECEDENT MCKINNEY, CLAD ONLY IN
A SPORTSHIRT.  THE DECEASED'S HEAD WAS BLOODY; A WHITE SOCK WAS FOUND
NEAR THE BODY.  IN OBSERVING THE AREA, ONE OFFICER LOOKED THROUGH THE
WINDOW OF THE DISABLED 1960 DODGE, LOCATED NOT FAR FROM WHERE THE BODY
WAS FOUND, AND SAW A PILLOWCASE, BACKSEAT, AND BRIEFCASE COVERED WITH
BLOOD. 

[[HC438'(ORIGINAL DOCUMENT PAGE 438)'  POLICE OFFICIALS OBTAINED, ON
THE EVENING OF THE 12TH, RETURNABLE WITHIN 48 HOURS, WARRANTS TO SEARCH
THE 1960 DODGE AND THE 1967 THUNDERBIRD, AS WELL AS ORDERS TO IMPOUND
BOTH AUTOMOBILES.  THE 1960 DODGE WAS EXAMINED AT THE FARM ON THE 12TH
AND THEN TOWED TO THE POLICE GARAGE WHERE IT WAS HELD AS EVIDENCE.  ON
THE 13TH, CRIMINOLOGISTS CAME FROM THE WISCONSIN CRIME LABORATORY IN
MADISON AND SEARCHED THE DODGE; THEY SEIZED THE BACK AND FRONT SEATS, A
WHITE SOCK COVERED WITH BLOOD, A PART OF A BLOODY REAR FLOOR MAT, A
BRIEFCASE, AND A FRONT FLOOR MAT.  A RETURN OF THE SEARCH WARRANT WAS
FILED IN THE COUNTY COURT ON THE 14TH, BUT IT DID NOT RECITE THAT THE
SOCK AND FLOOR MAT HAD BEEN SEIZED.  AT A HEARING HELD ON THE 14TH, THE
SHERIFF WHO EXECUTED THE WARRANT DID NOT SPECIFICALLY STATE THAT THESE
TWO ITEMS HAD BEEN SEIZED. 

AT THE TRIAL, THE STATE INTRODUCED TESTIMONY TENDING TO ESTABLISH
THAT THE DECEASED WAS FIRST HIT OVER THE HEAD AND THEN SHOT WITH A .38
CALIBER GUN, DYING APPROXIMATELY AN HOUR AFTER THE GUNSHOT WOUND WAS
INFLICTED; THAT DEATH OCCURRED AT APPROXIMATELY 7 A. M. ON THE 11TH,
WITH A SIX-HOUR MARGIN OF ERROR EITHER WAY; THAT RESPONDENT OWNED TWO
.38-CALIBER GUNS; THAT RESPONDENT HAD TYPE A BLOOD; THAT THE DECEASED
HAD TYPE O BLOOD AND THAT THE BLOOD STAINS FOUND IN THE 1960 DODGE AND
ON THE ITEMS FOUND IN THE TWO CARS WERE TYPE O. 

THE PROSECUTION INTRODUCED THE NIGHTSTICK DISCOVERED IN THE 1967
THUNDERBIRD, AND TESTIMONY THAT IT HAD TRACES OF TYPE O BLOOD ON IT;
THE PORTION OF THE FLOOR MAT FOUND IN THE 1967 CAR, WITH TESTIMONY THAT
IT MATCHED THE PORTION OF THE FLOOR MAT FOUND IN THE 1960 DODGE; THE
BLOODY TOWEL FOUND IN THE 1967 CAR, WITH TESTIMONY THAT IT WAS
IDENTICAL TO ONE OF THE TOWELS PURCHASED BY RESPONDENT ON THE 11TH; THE
POLICE UNIFORM TROUSERS; AND THE SOCK FOUND IN THE 1960 DODGE, WITH
TESTIMONY THAT IT WAS IDENTICAL IN COMPOSITION AND STITCHING TO THAT
FOUND NEAR THE BODY OF THE DECEASED. 

[[HC439'(ORIGINAL DOCUMENT PAGE 439)' 

THE STATE'S CASE WAS BASED WHOLLY ON CIRCUMSTANTIAL EVIDENCE.  THE
SUPREME COURT OF WISCONSIN, IN REVIEWING THE CONVICTION ON DIRECT
APPEAL, STATED THAT "EVEN THOUGH THE EVIDENCE THAT LED TO HIS
CONVICTION WAS CIRCUMSTANTIAL, WE HAVE SELDOM SEEN A STRONGER
COLLECTION OF SUCH EVIDENCE ASSEMBLED AND PRESENTED BY THE
PROSECUTION."  STATE V. DOMBROWSKI, 44 WIS.2D, AT 507, 171 N. W. 2D, AT
360. 

        II 

THE FOURTH AMENDMENT PROVIDES: 

  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,

  PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES,

  SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON

  PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND

  PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS

  OR THINGS TO BE SEIZED." 

THE ULTIMATE STANDARD SET FORTH IN THE FOURTH AMENDMENT IS
REASONABLENESS.  IN CONSTRUING THIS COMMAND, THERE HAS BEEN GENERAL
AGREEMENT THAT "EXCEPT IN CERTAIN CAREFULLY DEFINED CLASSES OF CASES, A
SEARCH OF PRIVATE PROPERTY WITHOUT PROPER CONSENT IS 'UNREASONABLE'
UNLESS IT HAS BEEN AUTHORIZED BY A VALID SEARCH WARRANT."  CAMARA V.
MUNICIPAL COURT, 387 U.S. 523, 528 - 529 (1967).  SEE COOLIDGE V. NEW
HAMPSHIRE, 403 U.S. 443, 454 - 455 (1971).  ONE CLASS OF CASES WHICH
CONSTITUTES AT LEAST A PARTIAL EXCEPTION TO THIS GENERAL RULE IS
AUTOMOBILE SEARCHES.  ALTHOUGH VEHICLES ARE "EFFECTS" WITHIN THE
MEANING OF THE FOURTH AMENDMENT, "FOR THE PURPOSES OF THE FOURTH
AMENDMENT THERE IS A CONSTITUTIONAL DIFFERENCE BETWEEN HOUSES AND
CARS."  CHAMBERS V. MARONEY, 399 U.S. 42, 52 (1970).  SEE CARROLL V.
UNITED STATES, 267 U.S. 132, 153 - 154 (1925). 

[[HC440'(ORIGINAL DOCUMENT PAGE 440)'  IN COOPER V. CALIFORNIA, 386
U.S. 58, 59 (1967), THE IDENTICAL PROPOSITION WAS STATED IN DIFFERENT
LANGUAGE: 

     "WE MADE IT CLEAR IN PRESTON THAT WHETHER A SEARCH AND SEIZURE

  IS UNREASONABLE WITHIN THE MEANING OF THE FOURTH AMENDMENT

  DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE AND POINTED

  OUT, IN PARTICULAR, THAT SEARCHES OF CARS THAT ARE CONSTANTLY

  MOVABLE MAY MAKE THE SEARCH OF A CAR WITHOUT A WARRANT A

  REASONABLE ONE ALTHOUGH THE RESULT MIGHT BE THE OPPOSITE OF A

  SEARCH OF A HOME, A STORE, OR OTHER FIXED PIECE OF PROPERTY.  376

  U.S., AT 366 - 367." 

WHILE THESE GENERAL PRINCIPLES ARE EASILY STATED, THE DECISIONS OF
THIS COURT DEALING WITH THE CONSTITUTIONALITY OF WARRANTLESS SEARCHES,
ESPECIALLY WHEN THOSE SEARCHES ARE OF VEHICLES, SUGGEST THAT THIS
BRANCH OF THE LAW IS SOMETHING LESS THAN A SEAMLESS WEBB. 

SINCE THIS COURT'S DECISION IN MAPP V. OHIO, 367 U.S. 643 (1961),
WHICH OVERRULED WOLF V. COLORADO, 338 U.S. 25 (1949), AND HELD THAT THE
PROVISIONS OF THE FOURTH AMENDMENT WERE APPLICABLE TO THE STATES
THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THE
APPLICATION OF FOURTH AMENDMENT STANDARDS, ORIGINALLY INTENDED TO
RESTRICT ONLY THE FEDERAL GOVERNMENT, TO THE STATES PRESENTS SOME
DIFFICULTY WHEN SEARCHES OF AUTOMOBILES ARE INVOLVED.  THE CONTACT WITH
VEHICLES BY FEDERAL LAW ENFORCEMENT OFFICERS USUALLY, IF NOT ALWAYS,
INVOLVES THE DETECTION OR INVESTIGATION OF CRIMES UNRELATED TO THE
OPERATION OF A VEHICLE.  CASES SUCH AS CARROLL V. UNITED STATES, SUPRA,
AND BRINEGAR V. UNITED STATES, 338 U.S. 160 (1949), ILLUSTRATE THE
TYPICAL SITUATIONS IN WHICH FEDERAL OFFICIALS COME INTO CONTACT WITH
AND SEARCH VEHICLES.  IN BOTH CASES, MEMBERS OF A SPECIAL FEDERAL UNIT
CHARGED WITH ENFORCING A PARTICULAR FEDERAL CRIMINAL STATUTE STOPPED
AND SEARCHED A VEHICLE WHEN THEY HAD PROBABLE CAUSE TO BELIEVE THAT THE
OPERATOR WAS VIOLATING THAT STATUTE. 

[[HC441'(ORIGINAL DOCUMENT PAGE 441)' 

AS A RESULT OF OUR FEDERAL SYSTEM OF GOVERNMENT, HOWEVER, STATE AND
LOCAL POLICE OFFICERS, UNLIKE FEDERAL OFFICERS, HAVE MUCH MORE CONTACT
WITH VEHICLES FOR REASONS RELATED TO THE OPERATION OF VEHICLES
THEMSELVES.  ALL STATES REQUIRE VEHICLES TO BE REGISTERED AND OPERATORS
TO BE LICENSED.  STATES AND LOCALITIES HAVE ENACTED EXTENSIVE AND
DETAILED CODES REGULATING THE CONDITION AND MANNER IN WHICH MOTOR
VEHICLES MAY BE OPERATED ON PUBLIC STREETS AND HIGHWAYS. 

BECAUSE OF THE EXTENSIVE REGULATION OF MOTOR VEHICLES AND TRAFFIC,
AND ALSO BECAUSE OF THE FREQUENCY WITH WHICH A VEHICLE CAN BECOME
DISABLED OR INVOLVED IN AN ACCIDENT ON PUBLIC HIGHWAYS, THE EXTENT OF
POLICE-CITIZEN CONTACT INVOLVING AUTOMOBILES WILL BE SUBSTANTIALLY
GREATER THAN POLICE-CITIZEN CONTACT IN A HOME OR OFFICE.  SOME SUCH
CONTACTS WILL OCCUR BECAUSE THE OFFICER MAY BELIEVE THE OPERATOR HAS
VIOLATED A CRIMINAL STATUTE, BUT MANY MORE WILL NOT BE OF THAT NATURE. 
LOCAL POLICE OFFICERS, UNLIKE FEDERAL OFFICERS, FREQUENTLY INVESTIGATE
VEHICLE ACCIDENTS IN WHICH THERE IS NO CLAIM OF CRIMINAL LIABILITY AND
ENGAGE IN WHAT, FOR WANT OF A BETTER TERM, MAY BE DESCRIBED AS
COMMUNITY CARETAKING FUNCTIONS, TOTALLY DIVORCED FROM THE DETECTION,
INVESTIGATION, OR ACQUISITION OF EVIDENCE RELATING TO THE VIOLATION OF
A CRIMINAL STATUTE.     ALTHOUGH THE ORIGINAL JUSTIFICATION ADVANCED
FOR TREATING AUTOMOBILES DIFFERENTLY FROM HOUSES, INSOFAR AS
WARRANTLESS SEARCHES OF AUTOMOBILES BY FEDERAL OFFICERS WAS CONCERNED,
WAS THE VAGRANT AND MOBILE NATURE OF THE FORMER, CARROLL V. UNITED
STATES, SUPRA; BRINEGAR V. UNITED STATES, SUPRA; CF. COOLIDGE V. NEW
HAMPSHIRE, SUPRA; CHAMBERS V. MARONEY, SUPRA, WARRANTLESS SEARCHES OF
VEHICLES BY STATE OFFICERS HAVE BEEN SUSTAINED IN CASES IN WHICH THE
POSSIBILITIES OF THE VEHICLE'S BEING REMOVED OR EVIDENCE IN IT
DESTROYED WERE REMOTE, IF NOT NON-EXISTENT. 

[[HC442'(ORIGINAL DOCUMENT PAGE 442)'  SEE HARRIS V. UNITED STATES,
390 U.S. 234 (1968) (DISTRICT OF COLUMBIA POLICE); COOPER V.
CALIFORNIA, SUPRA.  THE CONSTITUTIONAL DIFFERENCE BETWEEN SEARCHES OF
AND SEIZURES FROM HOUSES AND SIMILAR STRUCTURES AND FROM VEHICLES STEMS
BOTH FROM THE AMBULATORY CHARACTER OF THE LATTER AND FROM THE FACT THAT
EXTENSIVE, AND OFTEN NONCRIMINAL CONTACT WITH AUTOMOBILES WILL BRING
LOCAL OFFICIALS IN "PLAIN VIEW" OF EVIDENCE, FRUITS, OR
INSTRUMENTALITIES OF A CRIME, OR CONTRABAND.  CF. UNITED STATES V.
BISWELL, 406 U.S. 311 (1972). 

HERE WE MUST DECIDE WHETHER A "SEARCH"  /1/  OF THE TRUNK OF THE
1967 FORD WAS UNREASONABLE SOLELY BECAUSE THE LOCAL OFFICER HAD NOT
PREVIOUSLY OBTAINED A WARRANT.  AND, IF THAT BE ANSWERED IN THE
NEGATIVE, WE MUST THEN DETERMINE WHETHER THE WARRANTLESS SEARCH WAS
UNREASONABLE WITHIN THE MEANING OF THE FOURTH AND FOURTEENTH
AMENDMENTS.  IN ANSWERING THESE QUESTIONS, TWO FACTUAL CONSIDERATIONS
DESERVE EMPHASIS.  FIRST, THE POLICE HAD EXERCISED A FORM OF CUSTODY OR
CONTROL OVER THE 1967 THUNDERBIRD. 

[[HC443'(ORIGINAL DOCUMENT PAGE 443)'  RESPONDENT'S VEHICLE WAS
DISABLED AS A RESULT OF THE ACCIDENT, AND CONSTITUTED A NUISANCE ALONG
THE HIGHWAY.  RESPONDENT, BEING INTOXICATED (AND LATER COMATOSE), COULD
NOT MAKE ARRANGEMENTS TO HAVE THE VEHICLE TOWED AND STORED.  AT THE
DIRECTION OF THE POLICE, AND FOR ELEMENTAL REASONS OF SAFETY, THE
AUTOMOBILE WAS TOWED TO A PRIVATE GARAGE.  SECOND, BOTH THE STATE
COURTS AND THE DISTRICT COURT FOUND AS A FACT THAT THE SEARCH OF THE
TRUNK TO RETRIEVE THE REVOLVER WAS "STANDARD PROCEDURE IN (THAT POLICE)
DEPARTMENT," TO PROTECT THE PUBLIC FROM THE POSSIBILITY THAT A REVOLVER
WOULD FALL INTO UNTRAINED OR PERHAPS MALICIOUS HANDS.  ALTHOUGH THE
TRUNK WAS LOCKED, THE CAR WAS LEFT OUTSIDE, IN A LOT SEVEN MILES FROM
THE POLICE STATION TO WHICH RESPONDENT HAD BEEN TAKEN, AND NO GUARD WAS
POSTED OVER IT.  FOR REASONS NOT APPARENT FROM THE OPINION OF THE COURT
OF APPEALS, THAT COURT CONCLUDED THAT AS "NO FURTHER EVIDENCE WAS
NEEDED TO SUSTAIN"  THE DRUNK-DRIVING CHARGE, "(THE SEARCH MUST
THEREFORE HAVE BEEN FOR INCRIMINATING EVIDENCE OF OTHER OFFENSES."  471
F.2D 283.  WHILE THAT COURT WAS OBLIGATED TO EXERCISE ITS INDEPENDENT
JUDGMENT ON THE UNDERLYING CONSTITUTIONAL ISSUE PRESENTED BY THE FACTS
OF THIS CASE, IT WAS NOT FREE ON THIS RECORD TO DISREGARD THESE
FINDINGS OF FACT.  PARTICULARLY IN NONMETROPOLITAN JURISDICTIONS SUCH
AS THOSE INVOLVED HERE, ENFORCEMENT OF THE TRAFFIC LAWS AND SUPERVISION
OF VEHICLE TRAFFIC MAY BE A LARGE PART OF A POLICE OFFICER'S JOB.  WE
BELIEVE THAT THE COURT OF APPEALS SHOULD HAVE ACCEPTED, AS DID THE
STATE COURTS AND THE DISTRICT COURT, THE FINDINGS WITH RESPECT TO
OFFICER WEISS' SPECIFIC MOTIVATION AND THE FACT THAT THE PROCEDURE HE
FOLLOWED WAS "STANDARD." 

THE COURT OF APPEALS RELIED, AND RESPONDENT NOW RELIES, PRIMARILY ON
PRESTON V. UNITED STATES, 376 U.S. 364 (1964), TO CONCLUDE THAT THE
WARRANTLESS SEARCH WAS UNCONSTITUTIONAL AND THE SEIZED ITEMS
INADMISSIBLE. 

[[HC444'(ORIGINAL DOCUMENT PAGE 444)'  IN THAT CASE, THE POLICE
RECIEVED A TELEPHONE CALL AT 3 A. M. FROM A CALLER WHO STATED THAT
"THREE SUSPICIOUS MEN ACTING SUSPICIOUSLY"  HAD BEEN IN A CAR IN THE
BUSINESS DISTRICT OF NEWPORT, KENTUCKY, FOR FIVE HOURS; FOUR POLICEMEN
INVESTIGATED AND, AFTER RECEIVING EVASIVE EXPLANATIONS AND LEARNING
THAT THE SUSPECTS WERE UNEMPLOYED AND APPARENTLY INDIGENT, ARRESTED THE
THREE FOR VAGRANCY.  THE AUTOMOBILE WAS CURSORILY SEARCHED, THEN TOWED
TO A POLICE STATION AND ULTIMATELY TO A GARAGE, WHERE IT WAS SEARCHED
AFTER THE THREE MEN HAD BEEN BOOKED.  THAT SEARCH REVEALED TWO
REVOLVERS IN THE GLOVE COMPARTMENT; A SUBSEQUENT SEARCH OF THE TRUNK
RESULTED IN THE SEIZURE OF VARIOUS ITEMS LATER ADMITTED IN A
PROSECTUION FOR CONSPIRACY TO ROB A FEDERALLY INSURED BANK.  IN THAT
CASE THE RESPONDENT ATTEMPTED TO JUSTIFY THE WARRANTLESS SEARCH OF THE
TRUNK AND SEIZURE OF THE ITEMS THEREIN "AS INCIDENTAL TO A LAWFUL
ARREST."  ID., AT 367.  THE COURT REJECTED THE ASSERTED "SEARCH
INCIDENT" JUSTIFICATION FOR THE WARRANTLESS SEARCH IN THE FOLLOWING
TERMS: 

"BUT THESE JUSTIFICATIONS ARE ABSENT WHERE A SEARCH IS REMOTE IN
TIME OR PLACE FROM THE ARREST.  ONCE AN ACCUSED IS UNDER ARREST AND IN
CUSTODY, THAN A SEARCH MADE AT ANOTHER PLACE, WITHOUT A WARRANT, IS
SIMPLY NOT INCIDENT TO THE ARREST."  IBID. 

IT WOULD BE POSSIBLE TO INTERPRET PRESTON BROADLY, AND TO ARGUE THAT
IT STANDS FOR THE PROPOSITION THAT ON THOSE FACTS THERE COULD HAVE BEEN
NO CONSTITUTIONAL JUSTIFICATION ADVANCED FOR THE SEARCH.  BUT WE TAKE
THE OPINION AS WRITTEN, AND HOLD THAT IT STANDS ONLY FOR THE
PROPOSITION THAT THE SEARCH CHALLENGED THERE COULD NOT BE JUSTIFIED AS
ONE INCIDENT TO AN ARREST.  SEE CHAMBERS V. MARONEY, SUPRA; COOPER V.
CALIFORNIA, SUPRA.  WE BELIEVE THAT THE INSTANT CASE IS CONTROLLED BY
PRINCIPLES THAT MAY BE EXTRAPOLATED FROM HARRIS V. UNITED STATES,
SUPRA, AND COOPER V. CALIFORNIA, SUPRA. 

[[HC445'(ORIGINAL DOCUMENT PAGE 445)' 

IN HARRIS, PETITIONER WAS ARRESTED FOR ROBBERY.  AS PETITIONER'S CAR
HAD BEEN IDENTIFIED LEAVING THE SITE OF THE ROBBERY, IT WAS IMPOUNDED
AS EVIDENCE.  A REGULATION OF THE DISTRICT OF COLUMBIA POLICE
DEPARTMENT REQUIRED THAT AN IMPOUNDED VEHICLE BE SEARCHED, THAT ALL
VALUABLES BE REMOVED, AND THAT A TAG DETAILING CERTAIN INFORMATION BE
PLACED ON THE VEHICLE.  IN COMPLIANCE WITH THIS REGULATION, AND WITHOUT
A WARRANT, AN OFFICER SEARCHED THE CAR AND, WHILE OPENING ONE OF THE
DOORS, SPOTTED AN AUTOMOBILE REGISTRATION CARD, BELONGING TO THE
VICTIM, LYING FACE UP ON THE METAL DOOR STRIPPING.  THIS ITEM WAS
INTRODUCED INTO EVIDENCE AT PETITIONER'S TRIAL FOR ROBBERY.  IN
REJECTING THE CONTENTION THAT THE EVIDENCE WAS INADMISSIBLE, THE COURT
STATED: 

"THE ADMISSIBILITY OF EVIDENCE FOUND AS A RESULT OF A SEARCH UNDER
THE POLICE REGULATION IS NOT PRESENTED BY THIS CASE.  THE PRECISE AND
DETAILED FINDINGS OF THE DISTRICT COURT, ACCEPTED BY THE COURT OF
APPEALS, WERE TO THE EFFECT THAT THE DISCOVERY OF THE CARD WAS NOT THE
RESULT OF A SEARCH OF THE CAR, BUT OF A MEASURE TAKEN TO PROTECT THE
CAR WHILE IT WAS IN POLICE CUSTODY.  NOTHING IN THE FOURTH AMENDMENT
REQUIRES THE POLICE TO OBTAIN A WARRANT IN THESE NARROW CIRCUMSTANCES. 

     "ONCE THE DOOR HAD LAWFULLY BEEN OPENED, THE REGISTRATION CARD

  . . . WAS PLAINLY VISIBLE.  IT HAS LONG BEEN SETTLED THAT OBJECTS

FALLING IN THE PLAIN VIEW OF AN OFFICER WHO HAS A RIGHT TO BE IN

  THE POSITION TO HAVE THAT VIEW ARE SUBJECT TO SEIZURE AND MAY BE

  INTRODUCED IN EVIDENCE."  390 U.S., AT 236. 

IN COOPER, THE PETITIONER WAS ARRESTED FOR SELLING HEROIN, AND HIS
CAR IMPOUNDED PENDING FORFEITURE PROCEEDINGS.  A WEEK LATER, A POLICE
OFFICER SEARCHED THE CAR AND FOUND, IN THE GLOVE COMPARTMENT,
INCRIMINATING EVIDENCE SUBSEQUENTLY ADMITTED AT PETITIONER'S TRIAL. 

[[HC446'(ORIGINAL DOCUMENT PAGE 446)'  THIS COURT UPHELD THE
VALIDITY OF THE WARRANTLESS SEARCH AND SEIZURE WITH THE FOLLOWING
LANGUAGE: 

"THIS CASE IS NOT PRESTON, NOR IS IT CONTROLLED BY IT.  HERE THE
OFFICERS SEIZED PETITIONER'S CAR BECAUSE THEY WERE REQUIRED TO DO SO BY
STATE LAW.  THEY SEIZED IT BECAUSE OF THE CRIME FOR WHICH THEY ARRESTED
PETITIONER.  THEY SEIZED IT TO IMPOUND IT AND THEY HAD TO KEEP IT UNTIL
FORFEITURE PROCEEDINGS WERE CONCLUDED.  THEIR SUBSEQUENT SEARCH OF THE
CAR -- WHETHER THE STATE HAD 'LEGAL TITLE' TO IT OR NOT -- WAS CLOSELY
RELATED TO THE REASON PETITIONER WAS ARRESTED, THE REASON HIS CAR HAD
BEEN IMPOUNDED, AND THE REASON IT WAS BEING RETAINED.  THE FORFEITURE
OF PETITIONER'S CAR DID NOT TAKE PLACE UNTIL OVER FOUR MONTHS AFTER IT
WAS LAWFULLY SEIZED.  IT WOULD BE UNREASONABLE TO HOLD THAT THE POLICE,
HAVING TO RETAIN THE CAR IN THEIR CUSTODY FOR SUCH A LENGTH OF TIME,
HAD NO RIGHT, EVEN FOR THEIR OWN PROTECTION, TO SEARCH IT."  386 U.S.,
AT 61 - 62. 

THESE DICISIONS, WHILE NOT ON ALL FOURS WITH THE INSTANT CASE, LEAD
US TO CONCLUDE THAT THE INTRUSION INTO THE TRUNK OF THE 1967
THUNDERBIRD AT THE GARAGE WAS NOT UNREASONABLE WITHIN THE MEANING OF
THE FOURTH AND FOURTEENTH AMENDMENTS SOLELY BECAUSE A WARRANT HAD NOT
BEEN OBTAINED BY OFFICER WEISS AFTER HE LEFT THE HOSPITAL.  THE POLICE
DID NOT HAVE ACTUAL, PHYSICAL CUSTODY OF THE VEHICLE AS IN HARRIS AND
COOPER, BUT THE VEHICLE HAD BEEN TOWED THERE AT THE OFFICERS'
DIRECTIONS.  THESE OFFICERS IN A RURAL AREA WERE SIMPLY REACTING TO THE
EFFECT OF AN ACCIDENT -- ONE OF THE RECURRING PRACTICAL SITUATIONS THAT
RESULTS FROM THE OPERATION OF MOTOR VEHICLES AND WITH WHICH LOCAL
POLICE OFFICERS MUST DEAL EVERY DAY.  THE THUNDERBIRD WAS NOT PARKED
ADJACENT TO THE DWELLING PLACE OF THE OWNER AS IN COOLIDGE V. NEW
HAMPSHIRE, 403 U.S. 443 (1971), NOR SIMPLY MOMENTARILY UNOCCUPIED ON A
STREET. 

[[HC447'(ORIGINAL DOCUMENT PAGE 447)'  RATHER, LIKE AN OBVIOUSLY
ABANDONED VEHICLE, IT REPRESENTED A NUISANCE, AND THERE IS NO
SUGGESTION IN THE RECORD THAT THE OFFICERS'  ACTION IN EXERCISING
CONTROL OVER IT BY HAVING IT TOWED AWAY WAS UNWARRANTED EITHER IN TERMS
OF STATE LAW OR SOUND POLICE PROCEDURE. 

IN HARRIS THE JUSTIFICATION FOR THE INITIAL INTRUSION INTO THE
VEHICLE WAS TO SAFEGUARD THE OWNER'S PROPERTY, AND IN COOPER IT WAS TO
GUARANTEE THE SAFETY OF THE CUSTODIANS.  HERE THE JUSTIFICATION, WHILE
DIFFERENT, WAS AS IMMEDIATE AND CONSTITUTIONALLY REASONABLE AS THOSE IN
HARRIS AND COOPER: CONCERN FOR THE SAFETY OF THE GENERAL PUBLIC WHO
MIGHT BE ENDANGERED IF AN INTRUDER REMOVED A REVOLVER FROM THE TRUNK OF
THE VEHICLE.  THE RECORD CONTAINS UNCONTRADICTED TESTIMONY TO SUPPORT
THE FINDINGS OF THE STATE COURTS AND DISTRICT COURT.  FURTHERMORE,
ALTHOUGH THERE IS NO RECORD BASIS FOR DISCREDITING SUCH TESTIMONY, IT
WAS CORROBORATED BY THE CIRCUMSTANTIAL FACT THAT AT THE TIME THE SEARCH
WAS CONDUCTED OFFICER WEISS WAS IGNORANT OF THE FACT THAT A MURDER, OR
ANY OTHER CRIME, HAD BEEN COMMITTED.  WHILE PERHAPS IN A METROPOLITAN
AREA THE RESPONSIBILITY TO THE GENERAL PUBLIC MIGHT HAVE BEEN
DISCHARGED BY THE POSTING OF A POLICE GUARD DURING THE NIGHT, WHAT
MIGHT BE NORMAL POLICE PROCEDURE IN SUCH AN AREA MAY BE NEITHER NORMAL
NOR POSSIBLE IN KEWASKUM, WISCONSIN.  THE FACT THAT THE PROTECTION OF
THE PUBLIC MIGHT, IN THE ABSTRACT, HAVE BEEN ACCOMPLISHED BY "LESS
INTRUSIVE" MEANS DOES NOT, BY ITSELF, RENDER THE SEARCH UNREASONABLE. 
CF.  CHAMBERS V. MARONEY, SUPRA. 

THE COURT'S PREVIOUS RECOGNITION OF THE DISTINCTION BETWEEN MOTOR
VEHICLES AND DWELLING PLACES LEADS US TO CONCLUDE THAT THE TYPE OF
CARETAKING "SEARCH" CONDUCTED HERE OF A VEHICLE THAT WAS NEITHER IN THE
CUSTODY NOR ON THE PREMISES OF ITS OWNER, AND THAT HAD BEEN PLACED
WHERE IT WAS BY VIRTUE OF LAWFUL POLICE ACTION, WAS NOT UNREASONABLE
SOLELY BECAUSE A WARRANT HAD NOT BEEN OBTAINED. 

[[HC448'(ORIGINAL DOCUMENT PAGE 448)'  THE FRAMERS OF THE FOURTH
AMENDMENT HAVE GIVEN US ONLY THE GENERAL STANDARD OF "UNREASONABLENESS"
AS A GUIDE IN DETERMINING WHETHER SEARCHES AND SEIZURES MEET THE
STANDARD OF THAT AMENDMENT IN THOSE CASES WHERE A WARRANT IS NOT
REQUIRED.  VERY LITTLE THAT HAS BEEN SAID IN OUR PREVIOUS DECISIONS,
SEE COOPER V. CALIFORNIA, SUPRA, HARRIS V. UNITED STATES, SUPRA,
CHAMBERS V. MARONEY, SUPRA, AND VERY LITTLE THAT WE MIGHT SAY HERE CAN
USEFULLY REFINE THE LANGUAGE OF THE AMENDMENT ITSELF IN ORDER TO EVOLVE
SOME DETAILED FORMULA FOR JUDGING CASES SUCH AS THIS.  WHERE, AS HERE,
THE TRUNK OF AN AUTOMOBILE, WHICH THE OFFICER REASONABLY BELIEVED TO
CONTAIN A GUN, WAS VULNERABLE TO INTRUSION BY VANDALS, WE HOLD THAT THE
SEARCH WAS NOT "UNREASONABLE" WITHIN THE MEANING OF THE FOURTH AND
FOURTEENTH AMENDMENTS. 

        III 

THE WISCONSIN SUPREME COURT RULED THAT THE SOCK AND THE PORTION OF THE
FLOOR MAT WERE VALIDLY SEIZED FROM THE 1960 DODGE.  THE FOND DU LAC
COUNTY OFFICER WHO LOOKED THROUGH THE WINDOW OF THE DODGE AFTER
MCKINNEY'S BODY HAD BEEN FOUND SAW THE BLOODY SEAT AND BRIEFCASE, BUT
NOT THE SOCK OR FLOOR MAT.  CONSEQUENTLY, THESE TWO ITEMS WERE NOT
LISTED IN THE APPLICATION FOR THE WARRANT, BUT THE DODGE WAS THE ITEM
"PARTICULARLY DESCRIBED" TO BE SEARCHED IN THE WARRANT.  THE WARRANT
WAS VALIDLY ISSUED AND THE POLICE WERE AUTHORIZED TO SEARCH THE CAR. 
THE REASONING OF THE WISCONSIN SUPREME COURT WAS THAT ALTHOUGH THESE
ITEMS WERE NOT LISTED TO BE SEIZED IN THE WARRANT, THE WARRANT WAS
VALID AND IN EXECUTING IT THE OFFICERS DISCOVERED THE SOCK AND MAT IN
PLAIN VIEW AND THEREFORE COULD CONSTITUTIONALLY SEIZE THEM WITHOUT A
WARRANT. 

THE COURT OF APPEALS HELD THAT THE SEIZURE OF THE TWO ITEMS ON
SEPTEMBER 13TH COULD NOT BE JUSTIFIED UNDER THE PLAIN-VIEW DOCTRINE. 

[[HC449'(ORIGINAL DOCUMENT PAGE 449)'  THE REASONING OF THAT COURT
HINGED ON ITS UNDERSTANDING THAT THE WARRANT TO SEARCH THE DODGE HAD
BEEN RETURNED AND WAS FUNCTUS OFFICIO BY THE TIME OFFICER MAUER OF THE
CRIME LABORATORY CAME UPON THE SOCK AND THE FLOOR MAT.  THE COURT
STATED: 

     "THERE WAS NO CONTINUING AUTHORITY UNDER THE WARRANT ISSUED
THE

  PREVIOUS NIGHT (THE 12TH).  FIRST, THESE ITEMS WERE NOT DESCRIBED

  IN THE WARRANT AND PRESUMABLY WERE NOT OBSERVED THAT NIGHT (THE

  12TH).  SECOND, WHEN THE WARRANT WAS RETURNED -- BEFORE MAUER

  CAME ON THE SCENE -- IT WAS FUNCTUS OFFICIO.  A 'NEW BALL GAME,'

  SO TO SPEAK, BEGAN WHEN MAUER MADE HIS 'INSPECTION.'"  471 F.2D,

  AT 286. 

THE RECORD IS SO INDISPUTABLY CLEAR THAT THE RETURN OF THE WARRANT
WAS FILED ON THE 14TH, NOT SOMETIME PRIOR TO MAUER'S SEARCH ON THE
13TH, THAT WE ARE SOMEWHAT AT A LOSS TO UNDERSTAND HOW THE COURT OF
APPEALS ARRIVED AT ITS FACTUAL CONCLUSION.  THE WARRANT TO SEARCH THE
DODGE WAS ISSUED ON THE 12TH, AND, ALTHOUGH A RETURN OF THE WARRANT WAS
PREPARED BY A FOND DU LAC COUNTY OFFICER AT SOME TIME ON THE 13TH
(WHETHER BEFORE OR AFTER MAUER'S SEARCH IS IMPOSSIBLE TO DETERMINE), IT
WAS NOT FILED IN THE STATE COURT UNTIL THE 14TH, AT WHICH TIME A
HEARING WAS HELD.  THE SEIZURES OF THE SOCK AND THE FLOOR MAT OCCURRED
WHILE A VALID WARRANT WAS OUTSTANDING, AND THUS COULD NOT BE CONSIDERED
UNCONSTITUTIONAL UNDER THE THEORY ADVANCED BELOW.  AS THESE ITEMS WERE
CONSTITUTIONALLY SEIZED, WE DO NOT DEEM IT CONSTITUTIONALLY SIGNIFICANT
THAT THEY WERE NOT LISTED IN THE RETURN OF THE WARRANT.  THE
RAMIFICATION OF THAT "DEFECT," IF SUCH IT WAS, IS PURELY A QUESTION OF
STATE LAW. 

WE THEREFORE NEED NOT REACH THE QUESTION OF WHETHER THE SEIZURE OF
THE TWO ITEMS FROM THE DODGE WOULD HAVE BEEN VALID BECAUSE THE ENTIRE
CAR HAD BEEN VALIDLY SEIZED AS EVIDENCE AND IMPOUNDED PURSUANT TO A
VALID WARRANT, CF. HARRIS V. UNITED STATES, SUPRA, COOPER V.
CALIFORNIA, SUPRA, OR WHETHER A SEARCH OF THE BACK SEAT OF THIS CAR,
LOCATED AS IT WAS IN AN OPEN FIELD, REQUIRED A SEARCH WARRANT AT ALL. 

[[HC450'(ORIGINAL DOCUMENT PAGE 450)'  SEE HESTER V. UNITED STATES,
265 U.S. 57, 59 (1924). 

THE JUDGMENT OF THE COURT OF APPEALS IS

REVERSED. 

/1/  PETITIONER ARGUED BEFORE THIS COURT THAT UNLOCKING THE TRUNK OF
THE FORD DID NOT CONSTITUTE A "SEARCH" WITHIN THE MEANING OF THE FOURTH
AMENDMENT.  THE THESIS IS THAT ONLY AN INTRUSION, INTO AN AREA IN WHICH
AN INDIVIDUAL HAS A REASONABLE EXPECTATION OF PRIVACY, WITH THE
SPECIFIC INTENT OF DISCOVERING EVIDENCE OF A CRIME CONSTITUTES A
SEARCH.  COMPARE HAERR V. UNITED STATES, 240 F.2D 533 (CA5 1957), WITH
DISTRICT OF COLUMBIA V. LITTLE, 85 U.S. APP. D. C. 242, 178 F.2D 13
(1949), AFF'D ON OTHER GROUNDS, 339 U.S. 1 (1950).  BUT SEE CAMARA V.
MUNICIPAL COURT, 387 U.S. 523 (1967).  ARGUING THAT THE OFFICER'S
CONDUCT CONSTITUTED AN "INSPECTION" RATHER THAN A "SEARCH," PETITIONER
RELIES ON OUR DECISION IN HARRIS V. UNITED STATES, 390 U.S. 234 (1968),
TO VALIDATE THE INITIAL INTRUSION INTO THE TRUNK, AND THEN THE PLAIN
VIEW DOCTRINE TO JUSTIFY THE WARRANTLESS SEIZURE OF THE ITEMS. 

WE NEED NOT DECIDE THIS ISSUE.  PETITIONER CONCEDED IN THE COURT OF
APPEALS THAT THIS INTRUSION WAS A SEARCH.  INASMUCH AS WE BELIEVE THAT
HARRIS AND OTHER DECISIONS CONTROL THIS CASE EVEN IF THE INTRUSION IS
CHARACTERIZED AS A SEARCH, WE NEED NOT DEAL WITH PETITIONER'S BELATED
CONTENTION. 

[[DOP 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
STEWART, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

IN UPHOLDING THE WARRANTLESS SEARCH OF RESPONDENT'S RENTED
THUNDERBIRD, THE COURT PURPORTS MERELY TO RELY ON OUR PRIOR DECISIONS
DEALING WITH AUTOMOBILE SEARCHES.  IT IS CLEAR TO ME, HOWEVER, THAT
NOTHING IN OUR PRIOR DECISIONS SUPPORTS EITHER THE REASONING OR THE
RESULT OF THE COURT'S DECISION TODAY.  I THEREFORE DISSENT AND WOULD
HOLD THE SEARCH OF THE THUNDERBIRD UNCONSTITUTIONAL UNDER THE FOURTH
AND FOURTEENTH AMENDMENTS: 

THE RELEVANT FACTS ARE THESE.  RESPONDENT, AN OFF-DUTY CHICAGO
POLICEMAN, WAS ARRESTED BY POLICE ON A CHARGE OF DRUNKEN DRIVING
FOLLOWING A ONE-CAR AUTOMOBILE ACCIDENT IN WHICH RESPONDENT SEVERELY
DAMAGED HIS RENTED 1967 THUNDERBIRD.  THE CAR WAS TOWED FROM THE SCENE
OF THE ACCIDENT TO A PRIVATE GARAGE AND, SOME TWO AND ONE-HALF HOURS
LATER, ONE OF THE ARRESTING OFFICERS DROVE TO THE GARAGE AND, WITHOUT A
SEARCH WARRANT OR RESPONDENT'S CONSENT, CONDUCTED A THOROUGH SEARCH OF
THE CAR FOR THE ALLEGED PURPOSE OF FINDING RESPONDENT'S SERVICE
REVOLVER WHICH WAS NOT ON RESPONDENT'S PERSON AND HAD NOT BEEN FOUND
DURING AN INITIAL SEARCH OF THE CAR AT THE SCENE OF THE ACCIDENT.  IN
THE TRUNK OF THE CAR, THE OFFICER FOUND AND SEIZED NUMEROUS ITEMS THAT
EVENTUALLY LINKED RESPONDENT TO THE DEATH OF ONE HERBERT MCKINNEY AND
ULTIMATELY CONTRIBUTED TO RESPONDENT'S CONVICTION FOR MURDER. 

[[HC451'(ORIGINAL DOCUMENT PAGE 451)' 

THE COURT BEGINS ITS ANALYSIS BY RECOGNIZING, AS CLEARLY IT MUST,
THAT THE FOURTH AMENDMENT'S PROHIBITION AGAINST "UNREASONABLE SEARCHES
AND SEIZURES" IS SHAPED BY THE WARRANT CLAUSE, AND THUS THAT A
WARRANTLESS SEARCH OF PRIVATE PROPERTY IS PER SE "UNREASONABLE"  UNDER
THE FOURTH AMENDMENT UNLESS WITHIN ONE OF THE FEW SPECIFICALLY
ESTABLISHED AND WELL DELINEATED EXCEPTIONS.  ALMEIDA-SANCHEZ V. UNITED
STATES, ANTE, P. 266; KATZ V. UNITED STATES, 389 U.S. 347, 357 (1967);
CAMARA V. MUNICIPAL COURT, 387 U.S. 523, 528 - 529 (1967).  AT THE SAME
TIME, THE COURT ALSO RECOGNIZES THAT ONE OF THE ESTABLISHED EXCEPTIONS
TO THE WARRANT REQURIEMENT IS THE SEARCH OF AN AUTOMOBILE ON THE
HIGHWAY WHERE THERE IS PROBABLE CAUSE TO SUPPORT THE SEARCH AND "WHERE
IT IS NOT PRACTICABLE TO SECURE A WARRANT BECAUSE THE VEHICLE CAN BE
QUICKLY MOVED OUT OF THE LOCALITY OR JURISDICTION IN WHICH THE WARRANT
MUST BE SOUGHT."  CARROLL V. UNITED STATES, 267 U.S. 132, 153 (1925). 
SEE ALSO COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443 (1971); CHAMBERS V.
MARONEY, 399 U.S. 42 (1970); DYKE V. TAYLOR IMPLEMENT MFG. CO., 391
U.S. 216 (1968).  BUT THE SEARCH OF THE THUNDERBIRD PLAINLY CANNOT BE
SUSTAINED UNDER THE "AUTOMOBILE EXCEPTION," FOR OUR PRIOR DECISIONS
MAKE IT CLEAR THAT WHERE, AS IN THIS CASE, THERE IS NO REASONABLE
LIKELIHOOD THAT THE AUTOMOBILE WOULD OR COULD BE MOVED, THE "AUTOMOBILE
EXCEPTION" IS SIMPLY IRRELEVANT.  COOLIDGE V. NEW HAMPSHIRE, SUPRA, AT
461; CARROLL V. UNITED STATES, SUPRA, AT 156. 

ANOTHER ESTABLISHED EXCEPTION TO THE WARRANT REQUIREMENT IS A SEARCH
INCIDENT TO A VALID ARREST.  CHIMEL V. CALIFORNIA, 395 U.S. 752
(1969).  BUT THE SEARCH OF THE THUNDERBIRD CANNOT BE SUSTAINED UNDER
THIS EXCEPTION, BECAUSE EVEN ASSUMING THAT SUCH A SEARCH WOULD HAVE
BEEN WITHIN THE PERMISSIBLE SCOPE OF A SEARCH INCIDENT TO AN ARREST FOR
DRUNKEN DRIVING, IT IS CLEAR THAT UNDER PRESTON V. UNITED STATES, 376
U.S. 364, 368 (1964), "THE SEARCH WAS TOO REMOTE IN TIME OR PLACE TO
HAVE BEEN MADE AS INCIDENTAL TO THE ARREST." 

[[HC452'(ORIGINAL DOCUMENT PAGE 452)' 

A THIRD EXCPETION TO THE WARRANT REQUIREMENT IS THE SEIZURE OF
EVIDENCE IN "PLAIN-VIEW."  THUS, IN HARRIS V. UNITED STATES, 390 U.S.
234 (1968), WE UPHELD THE SEIZURE OF AN AUTOMOBILE REGISTRATION CARD
THAT FELL WITHIN PLAIN VIEW OF A POLICE OFFICER AS HE OPENED THE DOOR
OF AN IMPOUNDED AUTOMOBILE TO ROLL UP THE WINDOWS.  BUT, AS WE
CAUTIONED IN COODIGE, SUPRA, AT 466, "(WHAT THE 'PLAIN VIEW' CASES HAVE
IN COMMON IS THAT THE POLICE OFFICER IN EACH OF THEM HAD A PRIOR
JUSTIFICATION FOR AN INTRUSION IN THE COURSE OF WHICH HE CAME
INADVERTENTLY ACROSS A PIECE OF EVIDENCE INCRIMINATING THE ACCUSED." 
IN HARRIS, THE PRIOR JUSTIFICATION FOR THE INTRUSION BY THE POLICE WAS
TO ROLL UP THE WINDOWS AND LOCK THE DORRS "TO PROTECT THE CAR WHILE IT
WAS IN POLICE CUSTODY."  390 U.S., AT 236.  "(THE DISCOVERY OF THE CARD
WAS NOT THE RESULT OF A SEARCH," WE SAID, AND "IN THESE NARROW
CIRCUMSTANCES" THE "PLAIN VIEW" EXCEPTION TO THE WARRANT REQURIEMENT
WAS FULLY APPLICABLE.  IN THE PRESENT CASE, HOWEVER, THE SOLE PURPOSE
FOR THE INITIAL INTRUSION INTO THE VEHICLE WAS TO SEARCH FOR THE GUN. 
THUS, THE SEIZURE OF THE EVIDENCE FROM THE TRUNK OF THE CAR CAN BE
SUSTAINED UNDER THE "PLAIN VIEW" DOCTRINE ONLY IF THE SEARCH FOR THE
GUN WAS ITSELF CONSTITUTIONAL.  RELIANCE ON THE "PLAIN VIEW" DOCTRINE
IN THIS CASE IS THEREFORE MISPLACED SINCE THE ANTECEDENT SEARCH CANNOT
BE SUSTAINED. 

ANOTHER EXCEPTION TO THE WARRANT REQUIREMENT IS THAT WHICH SUSTAINS
A SEARCH IN CONNECTION WITH THE SEIZURE OF AN AUTOMOBILE FOR PURPOSES
OF FORFEITURE PROCEEDINGS.  IN COOPER V. CALIFORNIA, 386 U.S. 58
(1967), THE COURT UPHELD THE WARRANTLESS SEARCH OF AN AUTOMOBILE AFTER
IT HAD BEEN LAWFULLY IMPOUNDED PURSUANT TO A CALIFORNIA STATUTE
MANDATING THE SEIZURE AND FORFEITURE OF ANY VEHICLE USED TO FACILITATE
THE POSSESSION OR TRANSPORTATION OF NARCOTICS. 

[[HC453'(ORIGINAL DOCUMENT PAGE 453)'  THERE, HOWEVER, THE POLICE
WERE AUTHORIZED TO TREAT THE CAR IN THEIR CUSTODY AS IF IT WERE THEIR
OWN, AND THE SEARCH WAS SUSTAINABLE AS AN INTEGRAL PART OF THEIR RIGHT
OF RETENTION.  THIS CASE, OF COURSE, IS POLES AWAY FROM COOPER.  THE
THUNDERBIRD WAS NOT SUBJECT TO FORFEITURE PROCEEDINGS.  ON THE
CONTRARY, OWNERSHIP OF THE CAR REMAINED EXCLUSIVELY IN RESPONDENT'S
LESSOR AND THE SOLE REASON THAT THE POLICE TOOK EVEN TEMPORARY
POSSESSION OF THE CAR WAS TO REMOVE IT FROM THE HIGHWAY UNTIL
RESPONDENT COULD CLAIM IT. 

CLEARLY, THEREFORE, THE COURT'S DECISION TODAY FINDS NO SUPPORT IN
ANY OF THE ESTABLISHED EXCEPTIONS.  THE POLICE KNEW WHAT THEY WERE
LOOKING FOR AND HAD AMPLE OPPORTUNITY TO OBTAIN A WARRANT.  UNDER THOSE
CIRCUMSTANCES, OUR PRIOR DECISIONS MAKE IT CLEAR THAT THE FOURTH
AMENDMENT REQUIRED THE POLICE TO OBTAIN A WARRANT PRIOR TO THE SEARCH. 
CARROLL V. UNITED STATES, SUPRA, AT 156.  THUS, DESPITE THE COURT'S
ASSERTED ADHERENCE TO THE PRINCIPLES OF OUR PRIOR DECISIONS, IN FACT
THE DECISION RESTS ON A SUBJECTIVE VIEW OF WHAT IS DEEMED ACCEPTABLE IN
THE WAY OF INVESTIGATIVE FUNCTIONS PERFORMED BY RURAL POLICE OFFICERS. 
BUT THE APPLICABILITY OF THE FOURTH AMENDMENT CANNOT TURN ON FINE-LINE
DISTINCTIONS BETWEEN CRIMINAL AND INVESTIGATIVE FUNCTIONS.  ON THE
CONTRARY, "(I)T IS SURELY ANAMALOUS TO SAY THAT THE INDIVIDUAL AND HIS
PRIVATE PROPERTY ARE FULLY PROTECTED BY THE FOURTH AMENDMENT ONLY WHEN
THE INDIVIDUAL IS SUSPECTED OF CRIMINAL BEHAVIOR," CAMARA V. MUNICIPAL
COURT, SUPRA, AT 530, FOR "(THE BASIC PURPOSE OF (THE FOURTH)
AMENDMENT, AS RECOGNIZED IN COUNTLESS DECISIONS OF THIS COURT, IS TO
SAFEGUARD THE PRIVACY AND SECURITY OF INDIVIDUALS AGAINST ARBITRARY
INVASIONS BY GOVERNMENTAL OFFICIALS."  ID., AT 528.  THUS, THE FACT
THAT THE PROFESSED PURPOSE OF THE CONTESTED SEARCH WAS TO PROTECT THE
PUBLIC SAFETY RATHER THAN TO GAIN INCRIMINATING EVIDENCE DOES NOT OF
ITSELF ELIMINATE THE NECESSITY FOR COMPLIANCE WITH THE WARRANT
REQUIREMENT. 

[[HC454'(ORIGINAL DOCUMENT PAGE 454)'  ALTHOUGH A VALID PUBLIC
INTEREST MAY ESTABLISH PROBABLE CAUSE TO SEARCH, CAMARA, SUPRA, AND SEE
V. CITY OF SEATTLE, 387 U.S. 541 (1967), MAKE CLEAR THAT, ABSENT
EXIGENT CIRCUMSTANCES TO JUSTIFY THE WARRANTLESS SEARCH MADE OF THE
THUNDERBIRD.  FOR EVEN ASSUMING THAT THE OFFICER HAD REASON TO BELIEVE
THAT RESPONDENT'S SERVICE REVOLVER WAS IN THE THUNDERBIRD, THE POLICE
HAD LEFT THE CAR IN THE CUSTODY OF A PRIVATE GARAGE AND DID NOT RETURN
TO LOOK FOR THE GUN UNTIL TWO AND ONE-HALF HOURS LATER.  MOREOVER,
ALTHOUGH THE ARRESTING OFFICERS WERE AT ALL TIMES AWARE THAT RESPONDENT
WAS AN OFF-DUTY CHICAGO POLICEMAN, THE OFFICERS NEVER ONCE INQUIRED OF
RESPONDENT AS TO WHETHER HE WAS CARRYING A GUN AND, IF SO, WHERE IT WAS
LOCATED.  I CAN ONLY CONCLUDE, THEREFORE, THAT WHAT THE COURT DOES
TODAY IN THE NAME OF AN INVESTIGATIVE AUTOMOBILE SEARCH IS IN FACT A
SERIOUS DEPARTURE FROM ESTABLISHED FOURTH AMENDMENT PRINCIPLES.  AND
SINCE IN MY VIEW THAT DEPARTURE IS TOTALLY UNJUSTIFIED, I WOULD AFFIRM
THE JUDGMENT OF THE COURT OF APPEALS INVALIDATING THE SEARCH OF THE
THUNDERBIRD AND REMAND THE CASE TO THE DISTRICT COURT FOR DETERMINATION
WHETHER THE EVIDENCE SEIZED DURING THE SEARCH OF THE DODGE AND THE FARM
WERE THE FRUIT OF THE UNLAWFUL SEARCH OF THE THUNDERBIRD.  SEE ALDERMAN
V. UNITED STATES, 394 U.S. 165 (1969); WONG SUN V. UNITED STATES, 371
U.S. 471 (1963). 

LEROY L. DALTON, ASSISTANT ATTORNEY GENERAL OF WISCONSIN, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WAS ROBERT W. WARREN,
ATTORNEY GENERAL. 

WILLIAM J. MULLIGAN, BY APPOINTMENT OF THE COURT, 410 U.S. 952,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS DAVID E.
LEICHTFUSS.  /1/ 

/1/  ROBERT L. SHEVIN, ATTORNEY GENERAL, AND A. S. JOHNSON,
ASSISTANT ATTORNEY GENERAL, FILED A BRIEF FOR THE STATE OF FLORIDA AS
AMICUS CURIAE URGING REVERSAL. 
..END :







GOLDSTEIN ET AL. V. CALIFORNIA, 412 U.S. 546 


       CERTIORARI TO THE APPELLATE DEPARTMENT, SUPERIOR COURT OF

           CALIFORNIA, COUNTY OF LOS ANGELES 

  NO. 71 - 1192.  ARGUED DECEMBER 13, 1972 -- DECIDED JUNE, 18,
1973; AFFIRMED. 


    PETITIONERS, CONVICTED FOR COMMITTING ACTS OF "RECORD PIRACY"

  FOR "TAPE PIRACY" IN 1970 - 1971, CHALLENGE THE CALIFORNIA

  STATUTE PROSCRIBING SUCH PRACTICES, AS VIOLATIVE OF THE

  "COPYRIGHT CLAUSE," ART. I, ^ 8, CL. 8, OF THE FEDERAL STATUTES

  ENACTED THEREUNDER.  THE STATE APPELLATE COURT UPHELD THE

  VALIDITY OF THE STATUTE.  HELD: 

     1.  ARTICLE I, ^ 8 CL. 8, DOES NOT EXPRESSLY OR BY INFERENCE

  VEST ALL POWER TO GRANT COPYRIGHT PROTECTION EXCLUSIVELY IN THE

  FEDERAL GOVERNMENT.  PP. 552 - 561. 

   (A) ALTHOUGH THE OBJECTIVE OF THE COPYRIGHT CLAUSE WAS TO

  FACILITATE THE GRANTING OF RIGHTS NATIONAL IN SCOPE, IT DOES NOT

  INDICATE THAT ALL "WRITINGS" ARE OF NATIONAL INTEREST OR THAT

  PROTECTIVE STATE LEGISLATION IS, IN ALL CASES, UNNECESSARY OR

  PRECLUDED.  PP. 555 - 558. 

 (B) NO SUBSTANTIALLY PREJUDICIAL INTERSTATE CONFLICTS RESULT

  WHERE SOME STATES GRANT COPYRIGHT PROTECTION WITHIN THEIR OWN

  JURISDICTIONS WHILE OTHER STATES DO NOT.  PP. 558 - 559. 

     (C) CONFLICTS WILL NOT NECESSARILY ARISE BETWEEN STATE

  ENACTMENTS AND CONGRESSIONAL POLICY WHEN STATES GRANT COPYRIGHT

  PROTECTION.  P. 559. 

     (D) UNLESS CONGRESS DETERMINES THAT THE NATIONAL INTEREST

  REQUIRES FEDERAL PROTECTION OR FREEDOM FROM RESTRAINT AS TO A

 PARTICULAR CATEGORY OF "WRITINGS,"  STATE PROTECTION OF THAT

  CATEGORY IS NOT PRECLUDED.  P. 559. 

     (E) THE DURATIONAL LIMITATION IMPOSED BY THE COPYRIGHT CLAUSE

  ON CONGRESS DOES NOT INVALIDATE STATE LAWS, LIKE THE ONE HERE,

  THAT HAVE NO SUCH LIMITATION.  PP. 560 - 561. 

2.  THE CALIFORNIA STATUTE DOES NOT VIOLATE THE SUPREMACY

CLAUSE BY CONFLICTING WITH FEDERAL COPYRIGHT LAW.  PP. 561 -

  570. 

     (A) CONGRESS DID NOT, IN PASSING THE 1909 COPYRIGHT LAW,

  DETERMINE THAT RECORDINGS, AS ORIGINAL WRITINGS, WERE UNWORTHY OF

  ALL COPYRIGHT PROTECTION.  PP. 563 - 566. 

     (B) NOR DID CONGRESS IN 17 U.S.C. ^ 4, WHICH PROVIDES THAT
"THE

  WORKS FOR WHICH COPYRIGHTS MAY BE SECURED UNDER THIS ACT SHALL

  INCLUDE ALL WRITINGS OF AN AUTHOR," OR IN ^ 5, PRE-EMPT STATE

  CONTROL OVER ALL WORKS TO WHICH THE TERM "WRITINGS" MIGHT APPLY. 

  SEARS, ROEBUCK & CO. V. STIFFEL CO., 376 U.S. 225; COMPCO CORP.

V. DAY-BRITE LIGHTING, 376 U.S. 234, DISTINGUISHED.  PP. 567 -

  569. 

     3.  ALTHOUGH IN 1971, THE FEDERAL COPYRIGHT STATUTES WERE

  AMENDED TO ALLOW FEDERAL PROTECTION OF RECORDINGS, SUCH STATUTORY

  PROTECTION WAS NOT INTENDED TO ALTER THE LEGAL RELATIONSHIPS

  GOVERNING RECORDINGS "FIXED" PRIOR TO FEBRUARY 15, 1972.  UNTIL

  AND UNLESS CONGRESS TAKES FURTHER ACTION WITH RESPECT TO

  RECORDINGS FIXED PRIOR TO FEBRUARY 15, 1972, CALIFORNIA REMAINS

  FREE TO PROSCRIBE ACTS OF RECORD OR TAPE PIRACY SUCH AS THOSE

INVOLVED HERE.  PP. 570 - 571. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
WHITE, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., POST, P. 572,
AND MARSHALL, J., POST, P. 576, FILED DISSENTING OPINIONS, IN WHICH
BRENNAN AND BLACKMUN, JJ., JOINED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

[[HC548'(ORIGINAL DOCUMENT PAGE 548)' 

WE GRANTED CERTIORARI TO REVIEW PETITIONERS' CONVICTION UNDER A
CALIFORNIA STATUTE MAKING IT A CRIMINAL OFFENSE TO "PIRATE" RECORDINGS
PRODUCED BY OTHERS. 

IN 1971, AN INFORMATION WAS FILED BY THE STATE OF CALIFORNIA,
CHARGING PETITIONERS IN 140 COUNTS WITH VIOLATING ^ 653H OF THE
CALIFORNIA PENAL CODE.  THE INFORMATION CHARGED THAT, BETWEEN APRIL
1970, AND MARCH 1971, PETITIONERS HAD COPIED SEVERAL MUSICAL
PERFORMANCES FROM COMMERCIALLY SOLD RECORDINGS WITHOUT THE PERMISSION
OF THE OWNER OF THE MASTER RECORD OR TAPE.  /1/  PETITIONERS MOVED TO
DISMISS THE COMPLAINT ON THE GOUNDS THAT ^ 653H WAS IN CONFLICT WITH
ART. I, ^ 8, CL. 8, OF THE CONSTITUTION, /2/  THE "COPYRIGHT CLAUSE,"
AND THE FEDERAL STATUTES ENACTED THEREUNDER. 

[[HC549'(ORIGINAL DOCUMENT PAGE 549)'  UPON DENIAL OF THEIR MOTION,
PETITIONERS ENTERED PLEAS OF NOLO CONTENDERE TO 10 OF THE 140 COUNTS;
THE REMAINING COUNTS WERE DISMISSED.  ON APPEAL, THE APPELLATE
DEPARTMENT OF THE SUPERIOR COURT SUSTAINED THE VALIDITY OF THE
STATUTE.  AFTER EXHAUSTING OTHER STATE APPELLATE REMEDIES, PETITIONERS
SOUGHT REVIEW IN THIS COURT. 

        I 

PETITIONERS WERE ENGAGED IN WHAT HAS COMMONLY BEEN CALLED "RECORD
PIRACY" OR "TAPE PIRACY" -- THE UNAUTHORIZED DUPLICATION OF RECORDINGS
OF PERFORMANCES BY MAJOR MUSICAL ARTISTS.  /3/  PETITIONERS WOULD
PURCHASE FROM A RETAIL DISTRIBUTOR A SINGLE TAPE OR PHONOGRAPH
RECORDING OF THE POPULAR PERFORMANCES THEY WISHED TO DUPLICATE.  THE
ORIGINAL RECORDINGS WERE PRODUCED AND MARKETED BY RECORDING COMPANIES
WITH WHICH PETITIONERS HAD NO CONTRACTUAL RELATIONSHIP.  AT
PETITIONERS' PLANT, THE RECORDING WAS REPRODUCED ON BLANK TAPES, WHICH
COULD IN TURN BE USED TO REPLAY THE MUSIC ON A TAPE PLAYER.  THE TAPE
WAS THEN WOUND ON A CARTRIDGE.  A LABEL WAS ATTACHED, STATING THE TITLE
OF THE RECORDED PERFORMANCE -- THE SAME TITLE AS HAD APPEARED ON THE
ORIGINAL RECORDING, AND THE NAME OF THE PERFORMING ARTISTS.  /4/  AFTER
FINAL PACKAGING, THE TAPES WERE DISTRIBUTED TO RETAIL OUTLETS FOR SALE
TO THE PUBLIC, IN COMPETITION WITH THOSE PETITIONERS HAD COPIED. 

[[HC550'(ORIGINAL DOCUMENT PAGE 550)' 

PETITIONERS MADE NO PAYMENTS TO THE ARTISTS WHOSE PERFORMANCES THEY
REPRODUCED AND SOLD, OR TO THE VARIOUS TRUST FUNDS ESTABLISHED FOR
THEIR BENEFIT; NO PAYMENTS WERE MADE TO THE PRODUCER, TECHNICIANS, OR
OTHER STAFF PERSONNEL RESPONSIBLE FOR PRODUCING THE ORIGINAL RECORDING
AND PAYING THE LARGE EXPENSES INCURRED IN PRODUCTION.  /5/  NO PAYMENTS
WERE MADE FOR THE USE OF THE ARTISTS' NAMES OR THE ALBUM TITLE. 

  THE CHALLENGED CALIFORNIA STATUTE FORBIDS PETITIONERS TO TRANSFER
ANY PERFORMANCE FIXED ON A TAPE OR RECORD ONTO OTHER RECORDS OR TAPES
WITH THE INTENTION OF SELLING THE DUPLICATES, UNLESS THEY HAVE FIRST
RECEIVED PERMISSION FROM THOSE WHO, UNDER STATE LAW, ARE THE OWNERS OF
THE MASTER RECORDING.  ALTHOUGH THE PROTECTION AFFORDED TO EACH MASTER
RECORDING IS SUBSTANTIAL, LASTING FOR AN UNLIMITED TIME, THE SCOPE OF
THE PROSCRIBED ACTIVITIES IS NARROW.  NO LIMITATION IS PLACED ON THE
USE OF THE MUSIC, LYRICS, OR ARRANGEMENT EMPLOYED IN MAKING THE MASTER
RECORDING.  PETITIONERS ARE NOT PRECLUDED FROM HIRING THEIR OWN
MUSICIANS AND ARTISTS AND RECORDING AN EXACT IMITATION OF THE
PERFORMANCE EMBODIED ON THE MASTER RECORDING.  PETITIONERS ARE EVEN
FREE TO HIRE THE SAME ARTISTS WHO MADE THE INITIAL RECORDING IN ORDER
TO DUPLICATE THE PERFORMANCE. 

[[HC551'(ORIGINAL DOCUMENT PAGE 551)'  IN ESSENCE, THE STATUTE THUS
PROVIDES COPYRIGHT PROTECTION SOLELY FOR THE SPECIFIC EXPRESSIONS WHICH
COMPOSE THE MASTER RECORD OR TAPE. 

PETITIONERS' ATTACK ON THE CONSTITUTIONALITY OF ^ 653H HAS MANY
FACETS.  FIRST, THEY CONTEND THAT THE STATUTE ESTABLISHES A STATE
COPYRIGHT OF UNLIMITED DURATION, AND THUS CONFLICTS WITH ART. I, ^ 8,
CL. 8, OF THE CONSTITUTION.  SECOND, PETITIONERS CLAIM THAT THE STATE
STATUTE INTERFERES WITH THE IMPLEMENTATION OF FEDERAL POLICIES INHERENT
IN THE FEDERAL COPYRIGHT STATUES.  17 U.S.C. ^ 1 ET SEQ.  ACCORDING TO
PETITIONERS, IT WAS THE INTENTION OF CONGRESS, AS INTERPRETED BY THIS
COURT IN SEARS, ROEBUCK & CO. V. STIFFEL CO., 376 U.S. 225 (1964), AND
COMPCO CORP. V. DAY-BRITE LIGHTING, 376 U.S. 234 (1964), TO ESTABLISH A
UNIFORM LAW THROUGHOUT THE UNITED STATES TO PROTECT ORIGINAL WRITINGS. 
AS PART OF THE FEDERAL SCHEME, IT IS URGED THAT CONGRESS INTENDED TO
ALLOW INDIVIDUALS TO COPY ANY WORK WHICH WAS NOT PROTECTED BY A FEDERAL
COPYRIGHT.  SINCE ^ 653H EFFECTIVELY PROHIBITS THE COPYING OF WORKS
WHICH ARE NOT ENTITLED TO FEDERAL PROTECTION, PETITIONERS CONTEND THAT
IT CONFLICTS DIRECTLY WITH CONGRESSIONAL POLICY AND MUST FALL UNDER THE
SUPREMACY CLAUSE OF THE CONSTITUTION.  FINALLY, PETITIONERS ARGUE THAT
17 U.S.C. ^ 2, WHICH ALLOWS STATES TO PROTECT UNPUBLISHED WRITINGS, /6/
DOES NOT AUTHORIZE THE CHALLENGED STATE PROVISION; SINCE THE RECORDS
WHICH PETITIONERS COPIED HAD PREVIOUSLY BEEN RELEASED TO THE PUBLIC
PETITIONERS CONTEND THAT THEY HAD, UNDER FEDERAL LAW, BEEN PUBLISHED. 

WE NOTE AT THE OUTSET THAT THE FEDERAL COPYRIGHT STATUTES TO WHICH
PETITIONERS REFER WERE AMENDED BY CONGRESS WHILE THEIR CASE WAS PENDING
IN THE STATE COURTS. 

 HC552' (ORIGINAL DOCUMENT PAGE 552)' IN 1971, PUB. L. 92--140  85
STAT. 391, 17 U.S.C. 1 (F), 5 (N), 19, 20, 26, 101 (E), WAS PASSED TO
ALLOW FEDERAL COPYRIGHT PROTECTION OF RECORDINGS.  HOWEVER, 3 OF THE
AMENDMENT SPECIFICALLY PROVIDES THAT SUCH PROTECTION IS TO BE AVAILABLE
ONLY TO SOUND RECORDINGS "FIXED, PUBLISHED, AND COPYRIGHTED" ON AND
AFTER FEBRUARY 15, 1972, AND BEFORE JANUARY 1, 1975, AND THAT NOTHING
IN TITLE !7, AS AMENDED IS TO "BE APPLIED RETROACTIVELY OR (TO) BE
CONSTRUED AS AFFECTING IN ANY WAY ANY RIGHTS WITH RESPECT TO SOUND
RECORDINGS FIXED BEFORE" FEBRUARY 15, 1972.  THE RECORDINGS WHICH
PETITIONERS COPIED WERE ALL "FIXED" PRIOR TO FEBRUARY 15, 1972.  SINCE
ACCORDING TO THE LANGUAGE OF 3 OF THE AMENDMENT, CONGRESS DID NOT
INTEND TO ALTER THE LEGAL RELATIONSHIPS WHICH GOVERN THESE RECORDINGS,
THE AMENDMENTS HAVE NO APPLICATION IN PETITIONERS' CASE.  /7/

        II 

PETITIONERS' FIRST ARGUMENT RESTS ON THE PREMISE THAT THE STATE
STATUTE UNDER WHICH THEY WERE CONVICTED LIES BEYOND THE POWERS WHICH
THE STATES RESERVED IN OUR FEDERAL SYSTEM.  IF THIS IS CORRECT,
PETITIONERS MUST PREVAIL, SINCE THE STATES CANNOT EXERCISE A SOVEREIGN
POWER WHICH, UNDER THE CONSTITUTION, THEY HAVE RELINQUISHED TO THE
FEDERAL GOVERNMENT FOR ITS EXCLUSIVE EXERCISE. 

        A 

THE PRINCIPLES WHICH THE COURT HAS FOLLOWED IN CONSTRUING STATE
POWER WERE STATED BY ALEXANDER HAMILTON IN NUMBER 32 OF THE
FEDERALIST: 

     "AN ENTIRE CONSOLIDATION OF THE STATES INTO ONE COMPLETE

  NATIONAL SOVEREIGNTY WOULD IMPLY AN ENTIRE SUBORDINATION OF THE

  PARTS; AND WHATEVER POWERS MIGHT REMAIN IN THE, WOULD BE

  ALTOGETHER DEPENDENT ON THE GENERAL WILL.  BUT AS THE PLAN OF THE

  (CONSTITUTIONAL) CONVENTION AIMS ONLY AT A PARTIAL UNION OR

  CONSOLIDATION, THE STATE GOVERNMENTS WOULD CLEARLY RETAIN ALL THE

  RIGHTS OF SOVEREIGNTY WHICH THEY BEFORE HAD, AND WHICH WERE NOT,

  BY THAT ACT, EXCLUSIVELY DELEGATED TO THE UNITED STATES. 

[[HC553'(ORIGINAL DOCUMENT PAGE 553)'

  THIS EXCLUSIVE DELEGATION, OR RATHER THIS ALIENATION, OF STATE
SOVEREIGNTY, WOULD ONLY EXIST

  IN THREE CASES:  WHERE THE CONSTITUTION IN EXPRESS TERMS GRANTED
IN ONE INSTANCE AN AUTHORITY

  TO THE UNION, AND IN ANOTHER PROHIBITED THE STATES FROM
EXERCISING THE LIKE AUTHORITY; AND

  WHERE IT GRANTED AN AUTHORITY TO THE UNION, TO WHICH A SIMILAR
AUTHORITY IN THE STATES WOULD

  BE ABSOLUTELY AND TOTALLY CONTRADICTORY AND REPUGNANT."  /8/ THE
FIRST TWO INSTANCES MENTIONED PRESENT NO BARRIER TO A STATE'S ENACTMENT
OF COPYRIGHT STATUTES.  THE CLAUSE OF THE CONSTITUTION GRANTING TO
CONGRESS THE POWER TO ISSUE COPYRIGHTS DOES NOT PROVIDE THAT SUCH POWER
SHALL VEST EXCLUSIVELY IN THE FEDERAL GOVERNMENT.  NOR DOES THE
CONSTITUTION EXPRESSLY PROVIDE THAT SUCH POWER SHALL NOT BE EXERCISED
BY THE STATES. 

IN APPLYING THE THIRD PHASE OF THE TEST, WE MUST EXAMINE THE MANNER
IN WHICH THE POWER TO GRANT COPYRIGHTS MAY OPERATE IN OUR FEDERAL
SYSTEM.  THE OBJECTIVES OF OUR INQUIRY WERE RECOGNIZED IN COOLEY V.
BOARD OF WARDENS, 12 HOW.  299 (1852), WHEN, IN DETERMINING WHETHER THE
POWER GRANTED TO CONGRESS TO REGULATE COMMERCE /9/  WAS "COMPATIBLE
WITH THE EXISTENCE OF A SIMILAR POWER IN THE STATES,"  THE COURT
NOTED: 

"WHATEVER SUBJECTS OF THIS POWER ARE IN THEIR NATURE NATIONAL, OR
ADMIT ONLY OF ONE UNIFORM SYSTEM, OR PLAN OF REGULATION, MAY JUSTLY BE
SAID TO BE OF SUCH A NATURE AS TO REQUIRE EXCLUSIVE LEGISLATION BY
CONGRESS."  ID., AT 319. 

[[HC554'(ORIGINAL DOCUMENT PAGE 554)'  THE COURT'S DETERMINATION
THAT CONGRESS ALONE MAY LEGISLATE OVER MATTERS WHICH ARE NECESSARILY
NATIONAL IN IMPORT RELFECTS THE BASIC PRINCIPLE OF FEDERALISM.  "THE
GENIUS AND CHARACTER OF THE (FEDERAL) GOVERNMENT,"  CHIEF JUSTICE
MARSHALL SAID, 

"SEEM TO BE, THAT ITS ACTION IS TO BE APPLIED TO ALL THE EXTERNAL
CONCERNS OF THE NATION, AND TO THOSE INTERNAL CONCERNS WHICH AFFECT THE
STATES GENERALLY; BUT NOT TO THOSE WHICH ARE COMPLETELY WITHIN A
PARTICULAR STATE, WHICH DO NOT AFFECT OTHER STATES, AND WITH WHICH IT
IS NOT NECESSARY TO INTERFERE, FOR THE PURPOSE OF EXECUTING SOME OF THE
GENERAL POWERS OF THE GOVERNMENT."  GIBBONS V. OGDEN, 9 WHEAT.  I, 195
(1824). 

THE QUESTION WHETHER EXCLUSIVE FEDERAL POWER MUST BE INFERRED IS NOT
A SIMPLE ONE, FOR THE POWERS RECOGNIZED IN THE CONSTITUTION ARE BROAD
AND THE NATURE OF THEIR APPLICATION VARIED.  THE WARNING SOUNDED BY THE
COURT IN COOLEY MAY EQUALLY BE APPLICABLE TO THE COPYRIGHT CLAUSE: 

     "EITHER ABSOLUTELY TO AFFIRM OR DENY THAT THE NATURE OF (THE

  FEDERAL POWER OVER COMMERCE) REQUIRES EXCLUSIVE LEGISLATION BY

  CONGRESS, IS TO LOSE SIGHT OF THE NATURE OF THE SUBJECTS OF THIS

POWER, AND TO ASSERT CONCERNING ALL OF THEM, WHAT IS REALLY

  APPLICABLE BUT TO A PART."  12 HOW., AT 319. 

WE MUST ALSO BE CAREFUL TO DISTINGUISH THOSE SITUATIONS IN WHICH THE
CONCURRENT EXERCISE OF A POWER BY THE FEDERAL GOVERNMENT AND THE STATES
OR BY THE STATES ALONE MAY POSSIBLY LEAD TO CONFLICTS AND THOSE
SITUATIONS WHERE CONFLICTS WILL NECESSARILY ARISE.  "IT IS NOT . . . A
MERE POSSIBLITY OF INCONVENIENCE IN THE EXERCISE OF POWERS, BUT AN
IMMEDIATE CONSTITUTIONAL REPUGNANCY THAT CAN BY IMPLICATION ALIENATE
AND EXTINGUISH A PRE-EXISTING RIGHT OF (STATE) SOVEREIGNTY." 

[[HC555'(ORIGINAL DOCUMENT PAGE 555)'  THE FEDERALIST NO. 32, P.
243. 

ARTICLE I, ^ 8, CL. 8, OF THE CONSTITUTION GIVES TO CONGRESS THE
POWER -- 

     "TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY

  SECURING FOR LIMITED TIMES TO AUTHORS AND INVENTORS THE EXCLUSIVE

  RIGHT TO THEIR RESPECTIVE WRITINGS AND DISCOVERIES . . ." 

THE CLAUSE THUS DESCRIBES BOTH THE OBJECTIVE WHICH CONGRESS MAY SEEK
AND THE MEANS TO ACHIEVE IT.  THE OBJECTIVE IS TO PROMOTE THE PROGRESS
OF SCIENCE AND THE ARTS.  AS EMPLOYED, THE TERMS "TO PROMOTE" ARE
SYNONYMOUS WITH THE WORDS "TO STIMULATE," "TO ENCOURAGE," OR "TO
INDUCE."  /10/  TO ACCOMPLISH ITS PURPOSE, CONGRESS MAY GRANT TO
AUTHORS THE EXCLUSIVE RIGHT TO THE FRUITS OF THEIR RESPECTIVE WORKS. 
AN AUTHOR WHO POSSESSES AN UNLIMITED COPYRIGHT MAY PRECLUDE OTHERS FROM
COPYING HIS CREATION FOR COMMERCIAL PURPOSES WITHOUT PERMISSION, IN
OTHER WORDS, TO ENCOURAGE PEOPLE TO DEVOTE THEMSELVES TO INTELLECTUAL
AND ARTISTIC CREATION, CONGRESS MAY GUARANTEE TO AUTHORS AND INVENTORS
A REWARD IN THE FORM OF CONTROL OVER THE SALE OR COMMERCIAL USE OF
COPIES OF THEIR WORKS. 

THE OBJECTIVE OF THE COPYRIGHT CLAUSE WAS CLEARLY TO FACILITATE THE
GRANTING OF RIGHTS NATIONAL IN SCOPE.  WHILE THE DEBATES ON THE CLAUSE
AT THE CONSTITUTIONAL CONVENTION WERE EXTREMELY LIMITED, ITS PURPOSE
WAS DISCRIBED BY JAMES MADISON IN NO. 43 OF THE FEDERALIST: 

     "THE UTILITY OF THIS POWER WILL SCARCELY BE QUESTIONED.  THE

COPYRIGHT OF AUTHORS HAS BEEN SOLEMNLY ADJUDGED, IN GREAT

BRITAIN, TO BE A RIGHT OF COMMON LAW.  THE RIGHT TO USEFUL

  INVENTIONS SEEMS WITH EQUAL REASON TO BELONG TO THE INVENTORS. 

[[HC556'(ORIGINAL DOCUMENT PAGE 556)'

  THE PUBLIC GOOD FULLY COINCIDES IN BOTH CASES WITH THE CLAIMS OF
INDIVIDUALS.  THE STATES

  CANNOT SEPARATELY MAKE EFFECTUAL PROVISION FOR EITHER OF THE
CASES, AND MOST OF THEM HAVE

  ANTICIPATED THE DECISION OF THIS POINT, BY LAWS PASSED AT THE
INSTANCE OF CONGRESS."  /11/ THE DIFFICULTY NOTED BY MADISON RELATES TO
THE BURDEN PLACED ON AN AUTHOR OR INVENTOR WHO WISHES TO ACHIEVE
PROTECTION IN ALL STATES WHEN NO FEDERAL SYSTEM OF PROTECTION IS
AVAILABLE.  TO DO SO, A SEPARATE APPLICATION IS REQUIRED TO EACH STATE
GOVERNMENT; THE RIGHT WHICH IN TURN MAY BE GRANTED HAS EFFECT ONLY
WITHIN THE GRANTING STATE'S BORDERS.  /12/  THE NATIONAL SYSTEM WHICH
MADISON SUPPORTED ELIMINATES THE NEED FOR MULTIPLE APPLICATIONS AND THE
EXPENSE AND DIFFICULTY INVOLVED.  IN EFFECT, IT ALLOWS CONGRESS TO
PROVIDE A REWARD GREATER IN SCOPE THAN ANY PARTICULAR STATE MAY GRANT
TO PROMOTE PROGRESS IN THOSE FIELDS WHICH CONGRESS DETERMINES ARE
WORTHY OF NATIONAL ACTION. 

ALTHOUGH THE COPYRIGHT CLAUSE THUS RECOGNIZES THE POTENTIAL BENEFITS
OF A NATIONAL SYSTEM, IT DOES NOT INDICATE THAT ALL WRITINGS ARE OF
NATIONAL INTEREST OR THAT STATE LEGISLATION IS, IN ALL CASES,
UNNECESSARY OR PRECLUDED.     [[HC557'(ORIGINAL DOCUMENT PAGE 557)'
THE PATENTS GRANTED BY THE STATES IN THE 18TH CENTURY SHOW, TO THE
CONTRARY, A WILLINGNESS ON THE PART OF THE STATES TO PROMOTE THOSE
PORTIONS OF SCIENCE AND THE ARTS WHICH WERE OF LOCAL IMPORTANCE.  /13/
WHATEVER THE DIVERSITY OF PEOPLE'S BACKGROUNDS, ORIGINS AND INTERESTS,
AND WHATEVER THE VARIETY OF BUSINESS AND INDUSTRY IN THE 13 COLONIES,
THE RANGE OF DIVERSITY IS OBVIOUSLY FAR GREATER TODAY IN A COUNTRY OF
210 MILLION PEOPLE IN 50 STATES.  IN VIEW OF THAT ENORMOUS DIVERSITY,
IT IS UNLIKELY THAT ALL CITIZENS IN ALL PARTS OF THE COUNTRY PLACE THE
SAME IMPORTANCE ON WORKS RELATING TO ALL SUBJECTS. 

[[HC558'(ORIGINAL DOCUMENT PAGE 558)'  SINCE THE SUBJECT MATTER TO
WHICH THE COPYRIGHT CLAUSE IS ADDRESSED MAY THUS BE OF PURELY LOCAL
IMPORTANCE AND NOT WORTHY OF NATIONAL ATTENTION OR PROTECTION, WE
CANNOT DISCERN SUCH AN UNYIELDING NATIONAL INTEREST AS TO REQUIRE AN
INFERENCE THAT STATE POWER TO GRANT COPYRIGHTS HAS BEEN RELINQUISHED TO
EXCLUSIVE FEDERAL CONTROL. 

THE QUESTION TO WHICH WE NEXT TURN IS WHETHER, IN ACTUAL OPERATION,
THE EXERCISE OF THE POWER TO GRANT COPYRIGHTS BY SOME STATES WILL
PREJUDICE THE INTERESTS OF OTHER STATES.  AS WE HAVE NOTED, A COPYRIGHT
GRANTED BY A PARTICULAR STATE HAS EFFECT ONLY WITHIN ITS BOUNDARIES. 
IF ONE STATE GRANTS SUCH PROTECTION, THE INTERESTS OF STATES WHICH DO
NOT ARE NOT PREJUDICED SINCE THEIR CITIZENS REMAIN FREE TO COPY WITHIN
THEIR BORDERS THOSE WORKS WHICH MAY BE PROTECTED ELSEWHERE.  THE
INTERESTS OF A STATE WHICH GRANTS COPYRIGHT PROTECTION MAY, HOWEVER, BE
ADVERSELY AFFECTED ELSEWHERE.  THE INTERESTS OF A STATE WHICH GRANTS
COPYRIGHT PROTECTION MAY, HOWEVER, BE ADVERSELY AFFECTED BY OTHER
STATES THAT DO NOT; INDIVIDUALS WHO WISH TO PURCHASE A COPY OF A WORK
PROTECTED IN THEIR OWN STATE WILL BE ABLE TO BUY UNAUTHORIZED COPIES IN
OTHER STATES WHERE NO PROTECTION EXISTS.  HOWEVER, THIS CONFLICT IS
NEITHER SO INEVITABLE NOR SO SEVERE AS TO COMPEL THE CONCLUSION, THAT
STATE POWER HAS BEEN RELINQUISHED TO THE EXCLUSIVE JURISDICTION OF THE
CONGRESS.  OBVIOUSLY WHEN SOME STATES DO NOT GRANT COPYRIGHT PROTECTION
-- AND MOST DO NOT -- THAT CIRCUMSTANCE REDUCES THE ECONOMIC VALUE OF A
STATE COPYRIGHT, BUT IT WILL HARDLY RENDER THE COPYRIGHT WORTHLESS. 
THE SITUATION IS NO DIFFERENT FROM THAT WHICH MAY ARISE IN REGARD TO
OTHER STATE MONOPOLIES, SUCH AS A FOOD CONCESSION IN A LIMITED
ENCLOSURE, LIKE A STATE PARK, OR A STATE LOTTERY; IN EACH CASE,
CITIZENS MAY ESCAPE THE EFFECT OF ONE STATE'S MONOPOLY BY MAKING
PURCHASES IN ANOTHER AREA OF ANOTHER STATE.  SIMILARLY, IN THE CASE OF
STATE COPYRIGHTS, EXCEPT AS TO INDIVIDUALS WILLING TO TRAVEL ACROSS
STATE LINES IN ORDER TO PURCHASE RECORDS OR OTHER WRITINGS PROTECTED IN
THEIR OWN STATE, EACH STATE'S COPYRIGHTS WILL STILL SERVE TO INDUCE NEW
ARTISTIC CREATIONS WITHIN THAT STATE -- THE VERY OBJECTIVE OF THE GRANT
OF PROTECTION. 

[[HC559'(ORIGINAL DOCUMENT PAGE 559)'  WE DO NOT SEE HERE THE TYPE
OF PREJUDICIAL CONFLICTS WHICH WOULD ARISE, FOR EXAMPLE, IF EACH STATE
EXERCISED A SOVEREIGN POWER TO IMPOSE IMPOSTS AND TARIFFS; /14/  NOR
CAN WE DISCERN A NEED FOR UNIFORMITY SUCH AS THAT WHICH MAY APPLY TO
THE REGULATION OF INTERSTATE SHIPMENTS.  /15/ 

SIMILARLY, IT IS DIFFICULT TO SEE HOW THE CONCURRENT EXERCISE OF THE
POWER TO GRANT COPYRIGHTS BY CONGRESS AND THE STATES WILL NECESSARILY
AND INEVITABLY LEAD TO DIFFICULTY.  AT ANY TIME CONGRESS DETERMINES
THAT A PARTICULAR CATEGORY OF "WRITING" IS WORTHY OF NATIONAL
PROTECTION AND THE INCIDENTAL EXPENSES OF FEDERAL ADMINISTRATION,
FEDERAL COPYRIGHT PROTECTION MAY BE AUTHORIZED.  WHERE THE NEED FOR
FREE AND UNRESTRICTED DISTRIBUTION OF A WRITING IS THOUGHT TO BE
REQUIRED BY THE NATIONAL INTEREST, THE COPYRIGHT CLAUSE AND THE
COMMERCE CLAUSE WOULD ALLOW CONGRESS TO ESCHEW ALL PROTECTION, IN SUCH
CASES, A CONFLICT WOULD DEVELOP IF A STATE ATTEMPTED TO PROTECT THAT
WHICH CONGRESS INTENDED TO BE FREE FROM RESTRAINT OR TO FREE THAT WHICH
CONGRESS HAD PROTECTED.  HOWEVER, WHERE CONGRESS DETERMINES THAT
NEITHER FEDERAL PROTECTION NOR FREEDOM FROM RESTRAINT IS REQUIRED BY
THE NATIONAL INTEREST, IT IS AT LIBERTY TO STAY ITS HAND ENTIRELY. 
/16/  SINCE STATE PROTECTION WOULD NOT THEN CONFLICT WITH FEDERAL
ACTION, TOTAL RELINQUISHMENT OF THE STATES' POWER TO GRANT COPYRIGHT
PROTECTION CANNOT BE INFERRED. 

AS WE HAVE SEEN, THE LANGUAGE OF THE CONSTITUTION NEITHER EXPLICITLY
PRECLUDES THE STATES FROM GRANTING COPYRIGHTS NOR GRANTS SUCH AUTHORITY
EXCLUSIVELY TO THE FEDERAL GOVERNMENT. 

[[HC560'(ORIGINAL DOCUMENT PAGE 560)'  THE SUBJECT MATTER TO WHICH
THE COPYRIGHT CLAUSE IS ADDRESSED MAY AT TIMES BE OF PURELY LOCAL
CONCERN.  NO CONFLICT WILL NECESSARILY ARISE FROM A LACK OF UNIFORM
STATE REGULATION, NOR WILL THE INTEREST OF ONE STATE BE SIGNIFICANTLY
PREJUDICED BY THE ACTIONS OF ANOTHER.  NO REASON EXISTS WHY CONGRESS
MUST TAKE AFFIRMATIVE ACTION EITHER TO AUTHORIZE PROTECTION OF ALL
CATEGORIES OF WRITINGS OR TO FREE THEM FROM ALL RESTRAINT.  WE
THEREFORE CONLCUDE THAT, UNDER THE CONSTITUTION, THE STATES HAVE NOT
RELINQUISHED ALL POWER TO GRANT TO AUTHORS "THE EXCLUSIVE RIGHT TO
THEIR RESPECTIVE WRITINGS." 

        B 

PETITIONERS BASE AN ADDITIONAL ARGUMENT ON THE LANGUAGE OF THE
CONSTITUTION.  THE CALIFORNIA STATUTE FORBIDS INDIVIDUALS TO
APPROPRIATE RECORDINGS AT ANY TIME AFTER RELEASE.  FROM THIS,
PETITIONERS ARGUE THAT THE STATE HAS CREATED A COPYRIGHT OF UNLIMITED
DURATION, IN VIOLATION OF THAT PORTION OF ART. I, ^ 8, CL. 8, WHICH
PROVIDES THAT COPYRIGHTS MAY ONLY BE GRANTED "FOR LIMITED TIMES."  READ
LITERALLY, THE TEXT OF ART. I DOES NOT SUPPORT PETITIONERS' POSITION. 
WHATEVER LIMITATIONS HAVE BEEN APPENDED TO SUCH POWERS CAN ONLY BE
UNDERSTOOD AS A LIMIT ON CONGRESSIONAL, AND NOT STATE, ACTION. 
MOREOVER, IT IS NOT CLEAR THAT THE DANGERS TO WHICH THIS LIMITATION WAS
ADDRESSED APPLY WITH EQUAL FORCE TO BOTH THE FEDERAL GOVERNMENT AND THE
STATES.  WHEN CONGRESS GRANTS AN EXCLUSIVE RIGHT OR MONOPOLY, ITS
EFFECTS ARE PERVASIVE; NO CITIZEN OR STATE MAY ESCAPE ITS REACH.  AS WE
HAVE NOTED, HOWEVER, THE EXCLUSIVE RIGHT GRANTED BY A STATE IS CONFINED
TO ITS BORDERS. 

[[HC561'(ORIGINAL DOCUMENT PAGE 561)'  CONSEQUENTLY, EVEN WHEN THE
RIGHT IS UNLIMITED IN DURATION, ANY TENDENCY TO INHIBIT FURTHER
PROGRESS IN SCIENCE OR THE ARTS IS NARROWLY CIRCUMSCRIBED.  THE
CHALLENGED STATUTE CANNOT BE VOIDED FOR LACK OF A DURATIONAL
LIMITATION. 

        III 

OUR CONCLUSION THAT CALIFORNIA DID NOT SURRENDER ITS POWER TO ISSUE
COPYRIGHTS DOES NOT END THE INQUIRY.  WE MUST PROCEED TO DETERMINE
WHETHER THE CHALLENGED STATE STATUTE IS VOID UNDER THE SUPREMACY
CLAUSE.  NO SIMPLE FORMULA CAN CAPTURE THE COMPLEXITIES OF THIS
DETERMINATION; THE CONFLICTS WHICH MAY DEVELOP BETWEEN STATE AND
FEDERAL ACTION ARE AS VARIED AS THE FIELDS TO WHICH CONGRESSIONAL
ACTION MAY APPLY.  "OUR PRIMARY FUNCTION IS TO DETERMINE WHETHER, UNDER
THE CIRCUMSTANCES OF THIS PARTICULAR CASE, (THE STATE) LAW STANDS AS AN
OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND
OBJECTIVES OF CONGRESS."  HINES V. DAVIDOWITZ, 312 U.S. 52, 67 (1941). 
WE TURN, THEN, TO FEDERAL COPYRIGHT LAW TO DETERMINE WHAT OBJECTIVES
CONGRESS INTENDED TO FULFILL. 

BY ART. I, ^ 8 CL. 8, OF THE CONSTITUTION, THE STATES GRANTED TO
CONGRESS THE POWER TO PROTECT THE "WRITINGS" OF "AUTHORS."  THESE TERMS
HAVE NOT BEEN CONSTRUED IN THEIR NARROW LITERAL SENSE BUT, RATHER, WITH
THE REACH NECESSARY TO REFLECT THE BROAD SCOPE OF CONSTITUTIONAL
PRINCIPLES.  WHILE AN "AUTHOR" MAY BE VIEWED AS AN INDIVIDUAL WHO
WRITES AN ORIGINAL COMPOSTION, THE TERM, IN ITS CONSTITUTIONAL SENSE,
HAS BEEN CONSTRUED TO MEAN AN "ORIGINATOR," "HE TO WHOM ANYTHING OWES
ITS ORIGIN."  BURROW-GILES LITHOGRAPHIC CO. V. SARONY, 111 U.S. 53, 58
(1884).  SIMILARLY, ALTHOUGH THE WORD "WRITINGS" MIGHT BE LIMITED TO
SCRIPT OR PRINTED MATERIAL, IT MAY BE INTERPRETED TO INCLUDE ANY
PHYSICAL RENDERING OF THE FRUITS OF CREATIVE INTELLECTUAL OR AESTHETIC
LABOR.  IBID.; TRADE-MARK CASES, 100 U.S. 82, 94 (1879). 

[[HC562'(ORIGINAL DOCUMENT PAGE 562)'  THUS, RECORDINGS OF ARTISTIC
PERFORMANCES MAY BE WITHIN THE REACH OF CLAUSE 8. 

WHILE THE AREA IN WHICH CONGRESS MAY ACT IS BROAD, THE ENABLING
PROVISION OF CLAUSE 8 DOES NOT REQUIRE THAT CONGRESS ACT IN REGARD TO
ALL CATEGORIES OF MATERIALS WHICH MEET THE CONSTITUTIONAL DEFINITIONS. 
RATHER, WHETHER ANY SPECIFIC CATEGORY OF "WRITINGS" IS TO BE BROUGHT
WITHIN THE PURVIEW OF THE FEDERAL STATUTORY SCHEME IS LEFT TO THE
DISCRETION OF THE CONGRESS.  THE HISTORY OF FEDERAL COPYRIGHT STATUTES
INDICATES THAT THE CONGRESSIONAL DETERMINATION TO CONSIDER SPECIFIC
CLASSES OF WRITINGS IS DEPENDENT, NOT ONLY ON THE CHARACTER OF THE
WRITING, BUT ALSO ON THE COMMERCIAL IMPORTANCE OF THE PRODUCT TO THE
NATIONAL ECONOMY.  AS OUR TECHNOLOGY HAS EXPANDED THE MEANS AVAILABLE
FOR CREATIVE ACTIVITY AND HAS PROVIDED ECONOMICAL MEANS FOR REPRODUCING
MANIFESTATIONS OF SUCH ACTIVITY, NEW AREAS OF FEDERAL PROTECTION HAVE
BEEN INITIATED.  /17/ 

PETITIONERS CONTEND THAT THE ACTIONS TAKEN BY CONGRESS IN
ESTABLISHING FEDERAL COPYRIGHT PROTECTION PRECLUDE THE STATES FROM
GRANTING SIMILAR PROTECTION TO RECORDINGS OF MUSICAL PERFORMANCES. 

[[HC563'(ORIGINAL DOCUMENT PAGE 563)'  ACCORDING TO PETITIONERS,
CONGRESS ADDRESSED THE QUESTION OF WHETHER RECORDINGS OF PERFORMANCES
SHOULD BE GRANTED PROTECTION IN 1909; CONGRESS DETERMINED THAT ANY
INDIVIDUAL WHO WAS ENTITLED TO A COPYRIGHT ON AN ORIGINAL MUSICAL
COMPOSITION SHOULD HAVE THE RIGHT TO CONTROL TO A LIMITED EXTENT THE
USE OF THAT COMPOSITION ON RECORDINGS, BUT THAT THE RECORD ITSELF, AND
THE PERFORMANCE WHICH IT WAS CAPABLE OF REPRODUCING WERE NOT WORTHY OF
SUCH PROTECTION.  /18/  IN SUPPORT OF THEIR CLAIM, PETITIONERS CITE THE
HOUSE REPORT ON THE 1909 ACT, WHICH STATES: 

[[HC564'(ORIGINAL DOCUMENT PAGE 564)' 

     "IT IS NOT THE INTENTION OF THE COMMITTEE TO EXTEND THE RIGHT

  OF COPYRIGHT TO THE MECHANICAL REPRODUCTIONS THEMSELVES, BUT ONLY

  TO GIVE THE COMPOSER OR COPYRIGHT PROPRIETOR THE CONTROL, IN

  ACCORDANCE WITH THE PROVISIONS OF THE BILL, OF THE MANUFACTURE

  AND USE OF SUCH DEVICES."  H. R. REP. NO. 2222, 60TH CONG., 2D

  SESS., 9 (1909). 

TO INTERPRET ACCURATELY CONGRESS' INTENDED PURPOSE IN PASSING THE
1909 ACT AND THE MEANING OF THE HOUSE REPORT PETITIONERS CITE, WE MUST
REMEMBER THAT OUR MODERN TECHNOLOGY DIFFERS GREATLY FROM THAT WHICH
EXISTED IN 1909.  THE ACT AND THE REPORT SHOULD NOT BE READ AS IF THEY
WERE WRITTEN TODAY, FOR TO DO SO WOULD INEVITABLY DISTORT THEIR
INTENDED MEANING; RATHER, WE MUST READ THEM AGAINST THE BACKGROUND OF
1909, IN WHICH THEY WERE WRITTEN. 

IN 1831, CONGRESS FIRST EXTENDED FEDERAL COPYRIGHT PROTECTION TO
ORIGINAL MUSICAL COMPOSITIONS.  AN INDIVIDUAL WHO POSSESSED SUCH A
COPYRIGHT HAD THE EXCLUSIVE AUTHORITY TO SELL COPIES OF THE MUSICAL
SCORE; INDIVIDUALS WHO PURCHASED SUCH A COPY DID SO FOR THE MOST PART
TO PLAY THE COMPOSITION AT HOME ON A PIANO OR OTHER INSTRUMENT. 
BETWEEN 1831 AND 1909, NUMEROUS MACHINES WERE INVENTED WHICH ALLOWED
THE COMPOSITION TO BE REPRODUCED MECHANICALLY.  FOR EXAMPLE, ONE HAD
ONLY TO INSERT A PIANO ROLL OR DISC WITH PERFORATIONS IN APPROPRIATE
PLACES INTO A PLAYER PIANO TO ACHIEVE ALMOST THE SAME RESULTS WHICH
PREVIOUSLY REQUIRED SOMEONE CAPABLE OF PLAYING THE INSTRUMENT.  THE
MOUNTING SALES OF SUCH DEVICES DETRACTED FROM THE VALUE OF THE
COPYRIGHT GRANTED FOR THE MUSICAL COMPOSITION.  INDIVIDUALS WHO HAD USE
OF A PIANO ROLL AND AN APPROPRIATE INSTRUMENT HAD LITTLE, IF ANY, NEED
FOR A COPY OF THE SHEET MUSIC.  /19/ 

[[HC565'(ORIGINAL DOCUMENT PAGE 565)'  THE PROBLEMS WHICH AROSE
EVENTUALLY REACHED THIS COURT IN 1908 IN THE CASE OF WHITE-SMITH MUSIC
PUBLISHING CO. V. APOLLO CO., 209 U.S. 1.  THERE, THE APOLLO COMPANY
HAD MANUFACTURED PIANO ROLLS CAPABLE OF REPRODUCING MECHANICALLY
COMPOSITIONS COVERED BY A COPYRIGHT OWNED BY APPELLANT.  APPELLANT
CONTENDED THAT THE PIANO ROLLS CONSTITUTED "COPIES" OF THE COPYRIGHTED
COMPOSITION AND THAT THEIR SALE, WITHOUT PERMISSION, CONSTITUTED AN
INFRINGEMENT OF THE COPYRIGHT.  THE COURT HELD THAT PIANO ROLLS, AS
WELL AS RECORDS, WERE NOT "COPIES" OF THE COPYRIGHTED COMPOSITION, IN
TERMS OF THE FEDERAL COPYRIGHT STATUTES, BUT WERE MERELY COMPONENT
PARTS OF A MACHINE WHICH EXECUTED THE COMPOSITION.  /20/  DESPITE THE
FACT THAT THE PIANO ROLLS EMPLOYED THE CREATIVE WORK OF THE COMPOSER,
ALL PROTECTION WAS DENIED. 

IT IS AGAINST THIS BACKGROUND THAT CONGRESS PASSED THE 1909
STATUTE.  AFTER POINTEDLY WAITING FOR THE COURT'S DECISION IN WHITE
SMITH MUSIC PUBLISHING CO., /21/ CONGRESS DETERMINED THAT THE COPYRIGHT
STATUTES SHOULD BE AMENDED TO INSURE THAT COMPOSERS OF ORIGINAL MUSICAL
WORKS RECEIVED ADEQUATE PROTECTION TO ENCOURAGE RECORDS AND PIANO ROLLS
WERE TO BE CONSIDERED AS "COPIES" OF THE ORIGINAL COMPOSITION THEY WERE
CAPABLE OF REPRODUCING, AND COULD NOT BE MANUFACTURED UNLESS PAYMENT
WAS MADE TO THE PROPRIETOR OF THE COMPOSITION COPYRIGHT.  THE SECTION
OF THE HOUSE REPORT CITED BY PETITIONERS WAS INTENDED ONLY TO ESTABLISH
THE LIMITS OF THE COMPOSER'S RIGHT; COMPOSERS WERE TO HAVE NO CONTROL
OVER THE RECORDINGS THEMSELVES.  NOWHERE DOES THE REPORT INDICATE THAT
CONGRESS CONSIDERED RECORDS AS ANYTHING BUT A COMPONENT PART OF A
MACHINE, CAPABLE OF REPRODUCING AN ORIGINAL COMPONENT PART /22/  OR
THAT CONGRESS INTENDED RECORDS, AS RENDERINGS OF ORIGINAL PERFORM, TO
BE FREE FROM STATE CONTROL.  /23/ 

PETITIONER'S ARGUMENT DOES NOT REST ENTIRELY ON THE BELIEF THAT
CONGRESS INTENDED SPECIFICALLY TO EXEMPT RECORDINGS ON PERFORMANCES
FROM STATE CONTROL.  ASSUMING THAT NO SUCH INTENTION MAY BE FOUND, THEY
ARGUE THAT CONGRESS SO OCCUPIED THE FIELD OF COPYRIGHT PROTECTION AS TO
PPE-EMPT ALL COMPARABLE STATE ACTION.  RICE V. SANTA FE ELEVATOR CORP.,
331 U.S. 218 (1947).  THIS ASSERTION IS BASED ON THIS COURT'S OPINIONS
IN SEARS, ROEBUCK & CO. V. STIFFEL CO., 376 U.S. 225 (1964), AND COMPCO
CORP. V. DAY-BRITE LIGHTING, 376 U.S. 234 (1964).     SECTION 4 OF THE
FEDERAL COPYRIGHT LAWS PROVIDES: 

"THE WORKS FOR WHICH COPYRIGHT MAY BE SECURED UNDER THIS TITLE

  SHALL INCLUDE ALL THE WRITINGS OF AN AUTHOR."  17 U.S.C. 4 

ADDS: 

     "THE ABOVE SPECIFICATIONS SHALL NOT BE HELD TO LIMIT THE

  SUBJECT MATTER OF COPYRIGHT AS DEFINED IN SECTION 4 OF THIS.  .

  ."  17 U.S.C. 5

SINCE SEC. 4 EMPLOYS THE CONSTITIONAL TERM "WRITINGS,"  /24/  IT MAY BE
IT MAY BE ARGUED THAT CONGRESS INTENDED TO EXERCISE ITS AUTHORITY OVER
ALL WORKS TO WHICH THE CONSTITUTIONAL PROVISION MIGHT APPLY.  HOWEVER,
IN THE MORE THAN 60 YEARS WHICH HAVE ELAPSED SINCE ENACTMENT OF THIS
PROVISION, NEITHER THE COPYRIGHT OFFICE, THE COURT, NOR THE CONGRESS
HAS SO INTERPETED IT.  THE REGISTER OF COPYRIGHTS, WHO IS CHARGED WITH
ADMINISTRATION OF THE STATUTE, HAS CONSISTENTLY RULED THAT "CLAIMS TO
EXCLUSIVE RIGHTS IN MECHANICAL RECORDINGS . . . OR IN THE PERFORMANCES
THEY REPRODUCE" ARE NOT ENTITLED TO PROTECTION UNDER ^ 4.  37 CFR ^
202.8(B) (1972).  /25/ 

[[HC568'(ORIGINAL DOCUMENT PAGE 568)'  WITH ONE EARLY EXCEPTION,
/26/  AMERICAN COURTS HAVE AGREED WITH THIS INTERPRETATION; /27/  AND
IN 1971, PRIOR TO PASSAGE OF THE STATUTE WHICH EXTENDED FEDERAL
PROTECTION TO RECORDINGS FIXED ON OR AFTER FEBRUARY 15, 1972, CONGRESS
ACKNOWLEDGED THE VALIDITY OF THAT INTERPRETATION.  BOTH THE HOUSE AND
SENATE REPORTS ON THE PROPOSED LEGISLATION RECOGNIZED THAT RECORDINGS
QUALIFIED AS "WRITINGS" WITHIN THE MEANING OF THE CONSTITUTION, BUT HAD
NOT PREVIOUSLY BEEN PROTECTED UNDER THE FEDERAL COPYRIGHT STATUTE.  H.
R. REP. NO. 92 - 487, PP. 2, 5 (1971); S. REP. NO. 92 - 72, P. 4
(1971).  IN LIGHT OF THIS CONSISTENT INTERPRETATION BY THE COURTS, THE
AGENCY EMPOWERED TO ADMINISTER THE COPYRIGHT STATUTES AND CONGRESS
ITSELF, WE CANNOT AGREE THAT ^^ 4 AND 5 HAVE THE BROAD SCOPE
PETITIONERS CLAIM. 

[[HC569'(ORIGINAL DOCUMENT PAGE 569)' 

SEARS AND COMPCO, ON WHICH PETITIONERS RELY, DO NOT SUPPORT THEIR
POSITION.  IN THOSE CASES, THE QUESTION WAS WHETHER A STATE COULD,
UNDER PRINCIPLES OF A STATE UNFAIR COMPETITION LAW, PRECLUDE THE
COPYING OF MECHANICAL CONFIGURATIONS WHICH DID NOT POSSESS THE
QUALITIES REQUIRED FOR THE GRANTING OF A FEDERAL DESIGN OR MECHANICAL
PATENT.  THE COURT STATED: 

"(THE PATENT SYSTEM IS ONE IN WHICH UNIFORM FEDERAL STANDARDS ARE
CAREFULLY USED TO PROMOTE INVENTION WHILE AT THE SAME TIME PRESERVING
FREE COMPETITION.  OBVIOUSLY A STATE COULD NOT, CONSISTENTLY WITH THE
SUPREMACY CLAUSE OF THE CONSTITUTION, EXTEND THE LIFE OF A PATENT
BEYOND ITS EXPIRATION DATE OR GIVE A PATENT ON AN ARTICLE WHICH LACKED
THE LEVEL OF INVENTION REQUIRED FOR FEDERAL PATENTS.  TO DO EITHER
WOULD RUN COUNTER TO THE POLICY OF CONGRESS OF GRANTING PATENTS ONLY TO
TRUE INVENTIONS, AND THEN ONLY FOR A LIMITED TIME.  JUST AS A STATE
CANNOT ENCROACH UPON THE FEDERAL PATENT LAWS DIRECTLY, IT CANNOT, UNDER
SOME OTHER LAW, SUCH AS THAT FORBIDDING UNFAIR COMPETITION, GIVE
PROTECTION OF A KIND THAT CLASHES WITH THE OBJECTIVES OF THE FEDERAL
PATENT LAWS."  SEARS, ROEBUCK & CO. V. STIFFEL CO., 376 U.S., AT 230 -
231 (FOOTNOTES OMITTED). 

IN REGARD TO MECHANICAL CONFIGURATIONS, CONGRESS HAD BALANCED THE
NEED TO ENCOURAGE INNOVATION AND ORIGINALITY OF INVENTION AGAINST THE
NEED TO INSURE COMPETITION IN THE SALE OF IDENTICAL OR SUBSTANTIALLY
IDENTICAL PRODUCTS.  THE STANDARDS ESTABLISHED FOR GRANTING FEDERAL
PATENT PROTECTION TO MACHINES THUS INDICATED NOT ONLY WHICH ARTICLES IN
THIS PARTICULAR CATEGORY CONGRESS WISHED TO PROTECT, BUT WHICH
CONFIGURATIONS IT WISHED TO REMAIN FREE.  THE APPLICATION OF STATE LAW
IN THESE CASES TO PREVENT THE COPYING OF ARTICLES WHICH DID NOT MEET
THE REQUIREMENTS FOR FEDERAL PROTECTION DISTURBED THE CAREFUL BALANCE
WHICH CONGRESS HAD DRAWN AND THEREBY NECESSARILY GAVE WAY UNDER THE
SUPREMACY CLAUSE OF THE CONSTITUTION. 

[[HC570'(ORIGINAL DOCUMENT PAGE 570)'  NO COMPARABLE CONFLICT
BETWEEN STATE LAW AND FEDERAL LAW ARISES IN THE CASE OF RECORDINGS OF
MUSICAL PERFORMANCES.  IN REGARD TO THIS CATEGORY OF "WRITINGS,"
CONGRESS HAS DRAWN NO BALANCE; RATHER, IT HAS LEFT THE AREA UNATTENDED,
AND NO REASON EXISTS WHY THE STATE SHOULD NOT BE FREE TO ACT.  /28/

        IV 

MORE THAN 50 YEARS AGO, JUSTICE BRANDIS OBSERVED IN DISSENT IN
INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS: 

"THE GENERAL RULE OF LAW IS, THAT THE NOBLEST OF HUMAN PRODUCTIONS -
KNOWLEDGE, TRUTHS ASCERTAINED, CONCEPTIONS, AND IDEAS -- BECOME, AFTER
VOLUNTARY COMMUNICATION TO OTHERS, FREE AS THE AIR TO COMMON USE."  248
U.S. 215, 250 (1918). 

BUT THERE IS NO FIXED, IMMUTABLE LINE TO TELL US WHICH "HUMAN
PRODUCTIONS" ARE PRIVATE PROPERTY AND WHICH ARE SO GENERAL AS TO BECOME
"FREE AS THE AIR."  IN EARLIER TIMES, A PERFORMING ARTIST'S WORK WAS
LARGELY RESTRICTED TO THE STAGE; ONCE PERFORMED, IT REMAINED "RECORDED"
ONLY IN THE MEMORY OF THOSE WHO HAD SEEN OR HEARD IT.  TODAY, WE CAN
RECORD THAT PERFORMANCE IN PRECISE DETAIL AND REPRODUCE IT AGAIN AND
AGAIN WITH UTMOST FIDELITY. 

[[HC571'(ORIGINAL DOCUMENT PAGE 571)'  THE CALIFORNIA STATUTORY
SCHEME EVIDENCES A LEGISLATIVE POLICY TO PROHIBIT "TAPE PIRACY" AND
"RECORD PIRACY," CONDUCT THAT MAY ADVERSELY AFFECT THE CONTINUED
PRODUCTION OF NEW RECORDINGS, A LARGE INDUSTRY IN CALIFORNIA. 
ACCORDINGLY, THE STATE HAS, BY STATUTE, GIVEN TO RECORDINGS THE
ATTRIBUTES OF PROPERTY.  NO RESTRAINT HAS BEEN PLACED ON THE USE OF AN
IDEA OR CONCEPT; RATHER, PETITIONERS AND OTHER INDIVIDUALS REMAIN FREE
TO RECORD THE SAME COMPOSITIONS IN PRECISELY THE SAME MANNER AND WITH
THE SAME PERSONNEL AS APPEARED ON THE ORIGINAL RECORDING. 

IN SUM, WE HAVE SHOWN THAT ^ 653H DOES NOT CONFLICT WITH THE FEDERAL
COPYRIGHT STATUTE ENACTED BY CONGRESS IN 1909.  SIMILARLY, NO CONFLICT
EXISTS BETWEEN THE FEDERAL COPYRIGHT STATUTE PASSED IN 1971 AND THE
PRESENT APPLICATION OF ^ 653H, SINCE CALIFORNIA CHARGED PETITIONERS
ONLY WITH COPYING RECORDINGS FIXED PRIOR TO FEBRUARY 15, 1972.  /29/
FINALLY, WE HAVE CONCLUDED THAT OUR DECISIONS IN SEARS AND COMPCO,
WHICH WE REAFFIRM TODAY, HAVE NO APPLICATION IN THE PRESENT CASE, SINCE
CONGRESS HAS INDICATED NEITHER THAT IT WISHES TO PROTECT, NOR TO FREE
FROM PROTECTION, RECORDINGS OF MUSICAL PERFORMANCES FIXED PRIOR TO
FEBRUARY 15, 1972. 

WE CONCLUDE THAT THE STATE OF CALIFORNIA HAS EXERCISED A POWER WHICH
IT RETAINED UNDER THE CONSTITUTION, AND THAT THE CHALLENGED STATUTE, AS
APPLIED IN THIS CASE, DOES NOT INTRUDE INTO AN AREA WHICH CONGRESS HAS,
UP TO NOW, PRE-EMPTED.  UNTIL AND UNLESS CONGRESS TAKES FURTHER ACTION
WITH RESPECT TO RECORDINGS FIXED PRIOR TO FEBRUARY 15, 1972, THE
CALIFORNIA STATUTE MAY BE ENFORCED AGAINST ACTS OF PIRACY SUCH AS THOSE
WHICH OCCURRED IN THE PRESENT CASE. 

AFFIRMED. 

/1/  IN PERTINENT PART, THE CALIFORNIA STATUTE PROVIDES: 

"(A) EVERY PERSON IS GUILTY OF A MISDEMEANOR WHO: 

"(1) KNOWINGLY AND WILLFULLY TRANSFERS OR CAUSES TO BE TRANSFERRED
ANY SOUNDS RECORDED ON A PHONOGRAPH RECORD, . . . TAPE, . . . OR OTHER
ARTICLE ON WHICH SOUNDS ARE RECORDED, WITH INTENT TO SELL OR CAUSE TO
BE SOLD, . . . SUCH ARTICLE ON WHICH SUCH SOUNDS ARE SO TRANSFERRED,
WITHOUT THE CONSENT OF THE OWNER. 

"(2) . . .

        .          .          .   . 

"(B) AS USED IN THIS SECTION, 'PERSON' MEANS ANY INDIVIDUAL,
PARTNERSHIP, CORPORATION OR ASSOCIATION; AND 'OWNER' MEANS THE PERSON
WHO OWNS THE MASTER PHONOGRAPH RECORD, . . . MASTER TAPE, . . . OR
OTHER DEVICE USED FOR REPRODUCING RECORDED SOUNDS ON PHONOGRAPH
RECORDS, . . . TAPES, . . . OR OTHER ARTICLES ON WHICH SOUND IS
RECORDED, AND FROM WHICH THE TRANSFERRED RECORDED SOUNDS ARE DIRECTLY
OR INDIRECTLY DERIVED." 

SPECIFICALLY, EACH COUNT OF THE INFORMATION ALLEGED THAT, IN REGARD
TO A PARTICULAR RECORDING, PETITIONERS HAD, "AT AND IN THE CITY OF LOS
ANGELES, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA . . .
WILFULLY, UNLAWFULLY AND KNOWINGLY TRANSFERRED AND CAUSED TO BE
TRANSFERRED SOUNDS RECORDED ON A TAPE WITH THE INTENT TO SELL AND CAUSE
TO BE SOLD, SUCH TAPE ON WHICH SUCH SOUNDS (WERE) SO TRANSFERRED . .
." 

/2/  ARTICLE I, ^ 8 CL. 8, PROVIDES THAT CONGRESS SHALL HAVE THE

  POWER 

"TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR
LIMITED TIMES TO AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR
RESPECTIVE WRITINGS AND DISCOVERIES . . ." 

/3/  SINCE PETITIONERS DID NOT PROCEED TO TRIAL, THE FACTUAL RECORD
BEFORE THE COURT IS SPARSE.  HOWEVER, BOTH PARTIES INDICATE THAT A
COMPLETE DESCRIPTION OF PETITIONERS' METHOD OF OPERATION MAY BE FOUND
IN THE RECORD OF TAPE INDUSTRIES ASSN. OF AMERICAN V. YOUNGER, 316 F.
SUPP. 340 (CD CAL. 1970), APPEAL PENDING UNITED STATES COURT OF
APPEALS, CA9, NO. 26,628. 

/4/  AN ADDITIONAL LABEL WAS ATTACHED TO EACH CARTRIDGE BY
PETITIONERS, STATING THAT NO RELATIONSHIP EXISTED BETWEEN PETITIONERS
AND THE PRODUCER OF THE ORIGINAL RECORDING OR THE INDIVIDUALS WHOSE
PERFORMANCES HAD BEEN RECORDED.  CONSEQUENTLY, NO CLAIM IS MADE THAT
PETITIONERS MISREPRESENTED THE SOURCE OF THE ORIGINAL RECORDINGS OR THE
MANUFACTURER OF THE TAPES. 

/5/  THE COSTS OF PRODUCING A SINGLE ORIGINAL LONGPLAYING RECORD OF
A MUSCIAL PERFORMANCE MAY EXCEED $50,000 OR $100,000.  TAPE INDUSTRIES
ASSN. OF AMERICA V. YOUNGER, SUPRA, AT 344; HEARINGS ON S. 646 AND H.
R. 6927 BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 92D CONG., 1ST SESS., 27 - 28 (1971).  FOR THE PERFORMANCE
RECORDED ON THIS RECORD, PETITIONERS WOULD PAY ONLY THE RETAIL COST OF
A SINGLE LONG-PLAYING RECORD OR A SINGLE TAPE. 

/6/  TITLE 17 U.S.C. ^ 2 PROVIDES:  "NOTHING IN THIS TITLE SHALL BE
CONSTRUED TO ANNUL OR LIMIT THE RIGHT OF THE AUTHOR OR PROPRIETOR OF AN
UNPUBLISHED WORK, AT COMMON LAW OR IN EQUITY, TO PREVENT THE COPYING,
PUBLICATION, OR USE OF SUCH UNPUBLISHED WORK WITHOUT HIS CONSENT, AND
TO OBTAIN DAMAGES THEREFOR." 

/7/  NO QUESTION IS RAISED IN THE PRESENT CASE AS TO THE POWER OF
THE STATES TO PROTECT RECORDINGS FIXED AFTER FEBRUARY 15, 1972. 

/8/  THE FEDERALIST NO. 32, P. 241 (B. WRIGHT ED. 1961); SEE COOLEY
V. BOARD OF WARDENS, 12 HOW.  299, 318 - 319 (1851). 

/9/  ART. I, ^ 8 CL. 3. 

/10/  SEE KENDALL V. WINSOR, 21 HOW.  322, 328 (1859); MITCHELL V.
TILGHMAN, 19 WALL.  287, 418 (1874); BAUER V. O'DONNELL, 229 U.S. 1, 10
(1913). 

/11/ THE FEDERALIST NO. 43 P. 309 (B. WRIGHT ED. 1961). 

/12/  NUMEROUS EXAMPLES MAY BE FOUND IN OUR EARLY HISTORY OF THE
DIFFICULTIES WHICH THE CREATORS OF ITEMS OF NATIONAL IMPORT AND IN
SECURING PROTECTION OF THEIR CREATIONS IN ALL STATES.  FOR EXAMPLE,
NOAH WEBSTER, IN HIS EFFORT TO OBTAIN PROTECTION FOR HIS BOOK, A
GRAMMATICAL INSTITUTE OF THE ENGLISH LANGUAGE, BROUGHT HIS CLAIM BEFORE
THE LEGISLATURE OF AT LEAST SIX STATES, AND PERHAPS AS MANY AS 12.  SEE
B. BUGBEE, THE GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 108 - 110,
120 - 124 (WASH., D. C., 1967); H. R. REP. NO. 2222, 60TH CONG., 2D
SESS., 2 (1909).  SIMILAR DIFFICULTIES WERE EXPERIENCED BY JOHN FITCH
AND OTHER INVENTORS WHO DESIRED TO PROTECT THEIR EFFORTS TO PERFECT A
STEAMBOAT.  SEE FEDERICO, STATE PATENTS, 13 J. PAT.  OFF.  SOC. 166,
170 - 176 (1931). 

/13/  AS EARLY AS 1751, MASSACHUSETTS GRANTED TO BENJAMIN CRABB THE
EXCLUSIVE RIGHT TO EMPLOY A SPECIFIC PROCESS FOR THE MANUFACTURE OF
CANDLES OUT OF WHALE OIL.  IT IS NOT CLEAR WHETHER CRABB INVENTED THE
PROCESS.  THE ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF THE PROVINCE OF
THE MASSACHUSETTS BAY, VOL. 3, SESSION OF JAN 10, 1751, C. 19, PP. 546
547 (1878).  IN 1780, PENNSYLVANIA GRANTED A PATENT TO HENRY GUEST FOR
THE PROCESSING OF TANNING OIL AND BLUBBER, NOTING SPECIFICALLY THAT THE
PATENT WAS "A REWARD FOR HIS DISCOVERY AND FOR THE PURPOSE OF PROMOTING
USEFUL MANUFACTORIES IN THIS STATE."  THE STATUTES AT LARGE OF
PENNSYLVANIA FROM 1682 TO 1801, VOL. 10, P. 132 (J. MITCHELL & H.
FLANDERS EDS.  1904).  SIMILARLY, SOUTH CAROLINA GRANTED PROTECTION TO
PETER BELIN IN 1786 FOR NEWLY DESIGNED WATER WORKS WHICH AIDED IN THE
PRODUCTION OF RICE, A STAPLE OF SOUTH CAROLINA AGRICULTURE, AND OTHER
PRODUCTS.  ANOTHER PATENT RELATING TO THE PROCESSING OF RICE WAS
GRANTED BY SOUTH CAROLINA IN 1788.  THE STATUTES AT LARGE OF SOUTH
CAROLINA, VOL. 4, P. 755 (T. COOPER ED. 1838); ID., VOL. 5, P. 69
(1839).  IN 1787, MARYLAND GRANTED A PATENT ON A SPINNING AND CARDING
MACHINE "TO ENCOURAGE USEFUL INVENTIONS, AS WELL AS PROMOTE THE
MANUFACTURE OF COTTON AND WOOL WITHIN THIS STATE . . ."  THE LAWS OF
MARYLAND, VOL. 2, SESSION OF NOV. 6, 1786 - JAN 20, 1787, C. 23 (W.
KILTY ED. 1800).  IN THE SAME YEAR, PENNSYLVANIA PATENTED CERTAIN
DEVICES RELATING TO FOUR MILLS, NOTING THAT THESE DEVICES WOULD "TEND
TO SIMPLIFY AND RENDER CHEAP THE MANUFACTURE OF FLOUR WHICH IS ONE OF
THE PRINCIPAL STAPLES OF THIS COMMONWEALTH . . ."  THE STATUTES AT
LARGE OF PENNSYLVANIA FROM 1682 TO 1801, VOL. 12, PP. 483 - 484 (J.
MITCHELL & H. FLANDERS EDS.  1906). 

/14/  THE FEDERALIST NO. 42 P. 305 (B. WRIGHT ED. 1961). 

/15/  CF. MORGAN V. VIRGINIA, 328 U.S. 373 (1946); BIBB V. NAVAJO
FRIEGHT LINES, 359 U.S. 520 (1959); SOUTHERN PACIFIC CO. V. ARIZONA,
325 U.S. 761 (1945); PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553
(1923).     /16/  FOR EXAMPLE, CONGRESS HAS PROVIDED THAT WRITINGS
WHICH MAY EVENTUALLY BE THE SUBJECT OF A FEDERAL COPYRIGHT, MAY BE
PROTECTED UNDER STATE LAW PRIOR TO PUBLICATION.  17 U.S.C. ^2. 

/17/  THE FIRST CONGRESSIONAL COPYRIGHT STATUTE, PASSED IN 1790,
GOVERNED ONLY MAPS, CHARTS, AND BOOKS.  ACT OF MAY 31, 1790, C. 15, 1
STAT. 124.  IN 1802, THE ACT WAS AMENDED IN ORDER TO GRANT PROTECTION
TO ANY PERSON "WHO SHALL INVENT AND DESIGN, ENGRAVE, ETCH OR WORK . . .
ANY HISTORICAL OR OTHER PRINT OR PRINTS . . ."  ACT OF APR. 29.  1802,
C. 36, 2 STAT. 171.  PROTECTION WAS EXTENDED TO MUSICAL COMPOSITIONS
WHEN THE COPYRIGHT LAWS WERE REVISED IN 1831.  ACT OF FEB. 3, 1831, C.
16, 4 STAT. 436.  IN 1865, AT THE TIME WHEN MATHEW BRADY'S PICTURES OF
THE CIVIL WAR WERE ATTAINING FAME, PHOTOGRAPHS AND PHOTOGRAPHIC
NEGATIVES WERE EXPRESSLY ADDED TO THE LIST OF PROTECTED WORKS.  ACT OF
MAR. 3, 1865, C. 126, 13 STAT. 540.  AGAIN IN 1870, THE LIST WAS
AUGMENTED TO COVER PAINTINGS, DRAWINGS, CHROMOS, STATUETTES, STATUARY,
AND MODELS OR DESIGNS OF FINE ART. ACT OF JULY 8, 1870, C. 230, 16
STAT. 198. 

IN 1909, CONGRESS AGREED TO A MAJOR CONSOLIDATION AND AMENDMENT OF
ALL FEDERAL COPYRIGHT STATUTES.  A LIST OF 11 CATEGORIES OF PROTECTED
WORKS WAS PROVIDED.  THE RELEVANT SECTIONS OF THE ACT ARE DISCUSSED IN
THE TEXT OF OUR OPINION.  THE HOUSE REPORT ON THE PROPOSED BILL
SPECIFICALLY NOTED THAT AMENDMENT WAS REQUIRED BECAUSE "THE
REPRODUCTION OF VARIOUS THINGS WHICH ARE THE SUBJECT OF COPYRIGHT HAS
ENORMOUSLY INCREASED," AND THAT THE PRESIDENT HAS SPECIFICALLY
RECOMMENDED REVISION, AMONG OTHER REASONS, BECAUSE THE PRIOR LAWS
"OMITTED) PROTECTION FOR MANY ARTICLES WHICH, UNDER MODERN REPRODUCTIVE
PROCESSES, ARE ENTITLED TO PROTECTION."  H. R. REP. NO. 2222, SUPRA, N.
12, AT 1 (QUOTING SAMUEL J. ELDER AND PRESIDENT THEODORE ROOSEVELT). 

SINCE 1909, TWO ADDITIONAL AMENDMENTS HAVE BEEN ADDED.  IN 1912, THE
LIST OF CATEGORIES IN ^ 5 WAS EXPANDED SPECIFICALLY TO INCLUDE MOTION
PICTURES.  THE HOUSE REPORT ON THE AMENDMENT NOTED: 

"THE OCCASION FOR THIS PROPOSED AMENDMENT IS THE FACT THAT THE
PRODUCTION OF MOTION-PICTURE PHOTOPLAYS AND MOTION PICTURES OTHER THAN
PHOTOPLAYS HAS BECOME A BUSINESS OF VAST PROPORTIONS.  THE MONEY
INVESTED THEREIN IS SO GREAT AND THE PROPERTY RIGHTS SO VALUABLE THAT
THE COMMITTEE IS OF THE OPINION THAT THE COPYRIGHT LAW OUGHT TO BE SO
AMENDED AS TO GIVE TO THEM DISTINCT AND DEFINITE RECOGNITION AND
PROTECTION."  H. R. REP. NO. 756, 62D CONG., 2D SESS., 1 (1912). 

FINALLY, IN 1971, ^ 5 WAS AMENDED TO INCLUDE "SOUND RECORDINGS." 
CONGRESS WAS SPURRED TO ACTION BY THE GROWTH OF RECORD PIRACY, WHICH
WAS, IN TURN, DUE PARTLY TO TECHNOLOGICAL ADVANCES.  SEE HEARINGS ON S.
646 AND H. R. 6927, SUPRA, N. 5, AT 4 - 5, 11 (1971).  IT MUST BE
REMEMBERED THAT THE "RECORD PIRACY" CHARGED AGAINST PETITIONERS RELATED
TO RECORDINGS FIXED BY THE ORIGINAL PRODUCER PRIOR TO FEB. 15, 1972,
THE EFFECTIVE DATE OF THE 1971 ACT.  SEE SUPRA, AT 551 - 552. 

/18/  17 U.S.C. ^ 1(E). 

/19/  H. R. REP. NO. 7083, 59TH CONG., 2D SESS., PT. 2, P. 2 (1907)
(MINORITY REPORT). 

/20/  "AFTER ALL, WHAT IS THE PERFORATED ROLL?  THE FACT IS CLEARLY
ESTABLISHED IN THE TESTIMONY IN THIS CASE THAT EVEN THOSE SKILLED IN
THE MAKING OF THESE ROLLS ARE UNABLE TO READ THEM AS MUSICAL
COMPOSITIONS, AS THOSE IN STAFF NOTATION ARE READ BY THE PERFORMER . .
. 

"THESE PERFORATED ROLLS ARE PARTS OF A MACHINE WHICH, WHEN DULY
APPLIED AND PROPERLY OPERATED IN CONNECTION WITH THE MECHANISM TO WHICH
THEY ARE ADAPTED, PRODUCE MUSICAL TONES IN HARMONIOUS COMBINATION.  BUT
WE CANNOT THINK THAT THEY ARE COPIES WITHIN THE MEANING OF THE
COPYRIGHT ACT."  WHITE-SMITH MUSIC PUBLISHING CO. V. APOLLO CO., 209
U.S. 1, 18 (1908). 

/21/  H. R. REP. NO. 7083, SUPRA, N. 19, PT. 1, AT 10; PT. 2, AT 3 -
4. 

/22/  THIS IS ESPECIALLY CLEAR FROM THE COMMENT MADE BY THE COMMITTEE
ON PATENTS IN REGARD TO A FOREIGN STATUTE WHICH, TO SOME EXTENT,
PROTECTED PERFORMANCES.  THE COMMITTEE STATED THAT THE FOREIGN STATUTE
"IN NO WAY AFFECTS THE REPRODUCTION OF SUCH MUSIC BY PHONOGRAPHS,
GRAPHOPHONES, OR THE ORDINARY PIANO-PLAYING INSTRUMENTS, FOR IN THESE
INTRUMENTS THE REPRODUCTION IS PURELY MECHANICAL."  H. R. REP. NO.
2222, SUPRA, N. 12, AT 5. 

/23/  PETITIONERS DO NOT ARGUE THAT ^ 653H CONFLICTS WITH THAT PORTION
OF 17 U.S.C. ^ 1(E) WHICH PROVIDES:  "(WHENEVER THE OWNER OF A MUSICAL
COPYRIGHT HAS USED OR PERMITTED OR KNOWINGLY ACQUIESCED IN THE USE OF
THE COPYRIGHTED WORK UPON THE PARTS OF INSTRUMENTS SERVING TO REPRODUCE
MECHANICALLY THE MUSICAL WORK, ANY OTHER PERSON MAY MAKE SIMILAR USE OF
THE COPYRIGHTED WORK UPON THE PAYMENT TO THE COPYRIGHT PROPRIETOR OF A
ROYALTY OF 2 CENTS ON EACH SUCH PART MANUFACTURED . . ."  ASSUMING,
ARGUENDO, THAT PETITIONERS' USE OF THE COMPOSITION THEY DUPLICATED
CONSTITUTES A "SIMILAR USE," THE CHALLENGED STATE STATUTE MIGHT BE
CLAIMED TO DIMINISH THE RETURN WHICH IS DUE THE COMPOSER BY LESSENING
THE NUMBER OF COPIES PRODUCED, AND THUS TO CONFLICT WITH ^ 1(E). 
HOWEVER, AS WE HAVE NOTED ABOVE, THE MEANS PRESENTLY AVAILABLE FOR
REPRODUCING RECORDINGS WERE NOT IN EXISTENCE IN 1909 WHEN 17 U.S.C. ^
1(E) WAS PASSED.  WE SEE NO INDICATION THAT THE CHALLENGED STATE
STATUTE DETRACTS FROM ROYALTIES WHICH CONGRESS INTENDED THE COMPOSER TO
RECEIVE.  FURTHERMORE, MANY STATE STATUTES MAY DIMINISH THE NUMBER OF
COPIES PRODUCED.  TAXING STATUTES, FOR EXAMPLE, MAY RAISE THE COST OF
PRODUCING OR SELLING RECORDS AND THEREBY LESSEN THE NUMBER OF RECORDS
WHICH MAY BE SOLD OR INHIBIT NEW COMPANIES FROM ENTERING THIS FIELD OF
COMMERCE.  WE DO NOT SEE IN THESE STATUTES THE DIRECT CONFLICT
NECESSARY TO RENDER A STATE STATUTE INVALID. 

/24/  H. R. REP. NO. 2222, SUPRA, N. 12, AT 10. 

/25/  THE REGISTRATION OF RECORDS UNDER THE PROVISIONS OF THE 1909
ACT WOULD GIVE RISE TO NUMEROUS ADMINISTRATIVE DIFFICULTIES.  IT IS
DIFFICULT TO DISCERN HOW AN INDIVIDUAL WHO WISHED TO COPYRIGHT A RECORD
COULD COMPLY WITH THE NOTICE AND DEPOSIT PROVISIONS OF THE STATUTE.  17
U.S.C. ^^ 12, 13, 19, 20.  NOR IS IT CLEAR TO WHOM THE COPYRIGHT COULD
RIGHTFULLY BE ISSUED OR WHAT CONSTITUTED PUBLICATION.  FINALLY, THE
ADMINISTRATIVE AND ECONOMIC BURDEN OF CLASSIFYING AND MAINTAINING
COPIES OF RECORDS WOULD HAVE BEEN CONSIDERABLE.  SEE CHAFEE,
REFLECTIONS ON THE LAW OF COPYRIGHT:  II, 45 COL. L. REV. 719, 735
(1945); RINGER, THE UNAUTHORIZED DUPLICATION OF SOUND RECORDINGS,
STUDIES PREPARED FOR THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND
COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY, 86TH CONG., 2D
SESS., 2 (COMM. PRINT 1961); HEARINGS ON S. 646 AND H. R. 6927 SUPRA,
N. 5, AT 11, 14. 

/26/  FONOTIPIA, LTD. V. BRADLEY, 171 F. 951, 963 (EDNY 1909). 

/27/  AEOLIAN CO. V. ROYAL MUSIC ROLL CO., 196 F. 926, 927 (WDNY
1912); WARING V. WDAS BROADCASTING STATION, 327 PA. 433, 437 - 438, 194
A. 631, 633 - 634 (1937); CAPITOL RECORDS V. MERCURY RECORDS CORP., 221
F. 2D 657, 661 - 662 (CA2 1955); JEROME V. TWENTIETH CENTURY FOX-FILM
CORP., 67 F. SUPP. 736, 742 (SDNY 1946). 

/28/  PETITIONERS PLACE GREAT STRESS ON THEIR BELIEF THAT THE
RECORDS OR TAPES WHICH THEY COPIED HAD BEEN "PUBLISHED."  WE HAVE NO
NEED TO DETERMINE WHETHER, UNDER STATE LAW, THESE RECORDINGS HAD BEEN
PUBLISHED OR WHAT LEGAL CONSEQUENCES SUCH PUBLICATION MIGHT HAVE.  FOR
PURPOSES OF FEDERAL LAW, "PUBLICATION" SERVES ONLY AS A TERM OF THE ART
WHICH DEFINES THE LEGAL RELATIONSHIPS WHICH CONGRESS HAS ADOPTED UNDER
THE FEDERAL COPYRIGHT STATUTES.  AS TO CATEGORIES OF WRITINGS WHICH
CONGRESS HAS NOT BROUGHT WITHIN THE SCOPE OF THE FEDERAL STATUTE, THE
TERM HAS NO APPLICATION. 

/29/  SUPRA, AT 551 - 552. 

[[DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
BLACKMUN CONCUR, DISSENTING. 

ARTICLE I, ^ 8, CL. 8, OF THE CONSTITUTION PROVIDES: 

     "THE CONGRESS SHALL HAVE POWER . . . (TO PROMOTE THE PROGRESS

  OF SCIENCE AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO

  AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE

WRITINGS AND DISCOVERIES." 

MADISON MADE A BRIEF COMMENT ON THIS PROVISION GOVERNING BOTH
PATENTS AND COPYRIGHTS: 

"THE STATES CANNOT SEPARATELY MAKE EFFECTUAL PROVISION FOR EITHER OF
THE CASES, AND MOST OF THEM HAVE ANTICIPATED THE DECISION OF THIS
POINT, BY LAWS PASSED AT THE INSTANCE OF CONGRESS."  /1/ 

WE HAVE BEEN FAITHFUL TO THAT ADMONITION.  IN SEARS ROEBUCK & CO. V.
STIFFEL CO., 376 U.S. 225, 230 - 231, WE SAID: 

   "THUS THE PATENT SYSTEM IF ONE IN WHICH UNIFORM FEDERAL

  STANDARDS ARE CAREFULLY USED TO PROMOTE INVENTION WHILE AT THE

  SAME TIME PRESERVING FREE COMPETITION.  OBVIOUSLY A STATE COULD

  NOT, CONSISTENTLY WITH THE SUPREMACY CLAUSE OF THE CONSTITUTION,

  EXTEND THE LIFE OF A PATENT BEYOND ITS EXPIRATION DATE OR GIVE A

  PATENT ON AN ARTICLE WHICH LACKED THE LEVEL OF INVENTION REQUIRED

  FOR FEDERAL PATENTS.  TO DO EITHER WOULD RUN COUNTER TO THE

  POLICY OF CONGRESS OF GRANTING PATENTS ONLY TO TRUE INVENTIONS,

  AND THEN ONLY FOR A LIMITED TIME.  JUST AS A STATE CANNOT

ENCROACH UPON THE FEDERAL PATENT LAWS DIRECTLY, IT CANNOT, UNDER

  SOME OTHER LAW, SUCH AS THAT FORBIDDING UNFAIR COMPETITION, GIVE

  PROTECTION OF A KIND THAT CLASHES WITH THE OBJECTIVES OF THE

  FEDERAL PATENT LAWS." 

AN UNPATENTABLE ARTICLE IS "IN THE PUBLIC DOMIAN AND MAY BE MADE AND
SOLD BY WHOEVER CHOOSES TO DO SO."  ID., AT 231.  IN THAT CASE WE DID
NOT ALLOW A STATE TO USE ITS UNFAIR COMPETITION LAW TO PREVENT COPYING
OF AN ARTICLE WHICH LACKED SUCH NOVELTY THAT IT COULD NOT BE PATENTED. 
IN A COMPANION CASE, COMPCO CORP. V. DAY-BRITE LIGHTING, 376 U.S. 234,
237, WHERE AN UNFAIR COMPETITION CHARGE WAS MADE UNDER STATE LAW, WE
MADE THE SAME RULING, STATED: 

"TODAY WE HAVE HELD IN SEARS, ROEBUCK & CO. V. STIFFEL CO., SUPRA,
THAT WHEN AN ARTICLE IS UNPROTECTED BY A PATENT OR A COPYRIGHT, STATE
LAW MAY NOT FORBID OTHERS TO COPY THAT ARTICLE.  TO FORBID COPYING
WOULD INTERFERE WITH THE FEDERAL POLICY, FOUND IN ART. I, ^ 8, CL. 8,
OF THE CONSTITUTION AND IN THE IMPLEMENTING FEDERAL STATUTES, OF
ALLOWING FREE ACCESS TO COPY WHATEVER THE FEDERAL PATENT AND COPYRIGHT
LAWS LEAVE IN THE PUBLIC DOMAIN." 

PRIOR TO FEBRUARY 25, 1972, COPYRIGHT PROTECTION WAS NOT EXTENDED TO
SOUND RECORDINGS.  SEARS AND COMPCO MAKE CLEAR THAT THE FEDERAL POLICY
EXPRESSED IN ART. I, ^ 8, CL. 8, IS TO HAVE "NATIONAL UNIFORMITY IN
PATENT AND COPYRIGHT LAWS," 376 U.S., AT 231 N. 7, A POLICY BOLSTERED
BY ACTS OF CONGRESS WHICH VEST "EXCLUSIVE JURISDICTION TO HEAR PATENT
AND COPYRIGHT CASES IN FEDERAL COURTS . . . AND THAT SECTION OF THE
COPYRIGHT ACT WHICH EXPRESSLY SAVES STATE PROTECTION OF UNPUBLISHED
WRITINGS BUT DOES NOT INCLUDE PUBLISHED WRITINGS."  IBID. 

PRIOR TO FEBRUARY 15, 1972, /2/  SOUND RECORDINGS HAD NO COPYRIGHT
PROTECTION.  AND EVEN UNDER THAT ACT THE COPYRIGHT WOULD BE EFFECTIVE
"ONLY TO SOUND RECORDINGS FIXED, PUBLISHED, AND COPYRIGHTED ON AND
AFTER THE EFFECTIVE DATE OF THIS ACT (FEB. 15, 1972) AND BEFORE JANUARY
1, 1975."  /3/ 

CALIFORNIA'S LAW PROMOTES MONOPOLY; THE FEDERAL POLICY PROMOTES
MONOPOLY ONLY WHEN A COPYRIGHT IS ISSUED, AND IT FOSTERS COMPETITION IN
ALL OTHER INSTANCES.  MOREOVER, FEDERAL LAW LIMITS ITS MONOPOLY TO 28
YEARS PLUS A LIKE RENEWAL PERIOD, /4/  WHILE CALIFORNIA EXTENDS HER
MONOPOLY INTO PERPETUITY. 

CASES LIKE SEARS WERE SURCHARGED WITH "UNFAIR COMPETITION"  AND THE
PRESENT ONE WITH "PIRATED RECORDINGS."  BUT FREE ACCESS TO PRODUCTS ON
THE MARKET IS THE CONSUMER INTEREST PROTECTED BY THE FAILURE OF
CONGRESS TO EXTEND PATENTS OR COPYRIGHTS INTO VARIOUS AREAS.  THE DRIVE
FOR MONOPOLY PROTECTION IS STRONG AS IS EVIDENT FROM A READING OF THE
COMMITTEE REPORTS ON THE 1971 ACT.  /5/  YET, CONGRESS TOOK BUT A SHORT
STEP, SETTING UP A TRIAL PERIOD TO CONSIDER THE NEW MONOPOLY APPROACH. 
IT WAS TOLD THAT STATE LAWS, SUCH AS WE HAVE IN THIS CASE, WERE BEING
CHALLENGED ON THE GROUND THAT THE FEDERAL CONSTITUTION HAD PRE-EMPTED
THE FIELD, EVEN IN ABSENCE OF A PROVISION FOR MAKING IT POSSIBLE TO
OBTAIN A COPYRIGHT FOR SOUND RECORDINGS.  BUT THE HOUSE COMMITTEE MADE
ONLY THE FOLLOWING COMMENT: 

"WHILE THE COMMITTEE EXPRESSES NO OPINION CONCERNING THIS LEGAL
QUESTION, IT IS CLEAR THAT THE EXTENSION OF COPYRIGHT PROTECTION TO
SOUND RECORDINGS WOULD RESOLVE MANY OF THE PROBLEMS WHICH HAVE ARISEN
IN CONNECTION WITH THE EFFORTS TO COMBAT PIRACY IN STATE COURTS."  /6/ 

THE DEPARTMENT OF JUSTIC IN COMMENTING ON THE PROPOSALS THAT
RESULTED IN THE 1971 ACT TOLD THE HOUSE: 

     "WE BELIEVE THAT EXTENDING COPYRIGHT TO REPRODUCTION OF SOUND

  RECORDINGS IS THE SOUNDEST, AND IN OUR INTERPRETATION OF SEARS

  AND COMPCO, THE ONLY WAY IN WHICH SOUND RECORDINGS SHOULD BE

  PROTECTED.  COPYRIGHT PROTECTION IS NARROWLY DEFINED AND LIMITED

  IN DURATION, WHEREAS STATE REMEDIES, WHOSE VALIDITY IS STILL IN

  DOUBT, FREQUENTLY CREATE BROAD AND UNWARRANTED PERPETUAL

  MONOPOLIES.  MOREOVER, THERE IS AN IMMEDIATE AND URGENT NEED FOR

THIS PROTECTION."  /7/ 

THE NEED FOR UNIFORMITY WAS STATED BY JUDGE LEARNED HAND IN A
DISSENT IN CAPITOL RECORDS, INC. V. MERCURY RECORDS CORP., 221 F.2D
657.  THAT CASE INVOLVED THE DUPLICATION OF UNCOPYRIGHTED SOUND
RECORDINGS, THE COURT HOLDING THAT STATE LAW PREVAILED WHERE THERE WAS
NO FEDERAL COPYRIGHT PROVISION.  JUDGE HAND EMPHASIZED IN HIS DISSENT
THAT "UNIFORMITY" WAS ONE OF THE PRINCIPAL PURPOSES OF THE PATENT AND
COPYRIGHT CLAUSE AND THAT UNIFORMITY COULD BE OBTAINED ONLY BY PRE
EMPTION.  HE SAID: 

"IF, FOR EXAMPLE IN THE CASE AT BAR, THE DEFENDANT IS FORBIDDEN TO
MAKE AND SELL THESE RECORDS IN NEW YORK, THAT WILL NOT PREVENT IT FROM
MAKING AND SELLING THEM IN ANY OTHER STATE WHICH MAY REGARD THE
PLAINTIFF'S SALES AS A 'PUBLICATION'; AND IT WILL BE PRACTICALLY
IMPOSSIBLE TO PREVENT THEIR IMPORTATION INTO NEW YORK.  THAT IS EXACTLY
THE KIND OF EVIL AT WHICH THE CLAUSE IS DIRECTED."  ID., AT 667.     I
WOULD REVERSE THE JUDGMENT BELOW. 

[[DFN 

/1/  THE FEDERALIST NO. 43, P. 309 (B. WRIGHT ED. 1961). 

/2/  THE EFFECTIVE DATE OF PUBL L. 92 - 140, 85 STAT. 392. 

/3/  ID., ^ 3. 

/4/  17 U.S.C. ^ 24.     /5/  H. R. REP. NO. 92 - 487; S. REP. NO.
92 - 72. 

/6/  H. R. REP., SUPRA, NO. 5, AT 3. 

/7/  ID., AT 13. 

[[DOP 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

THE ARGUMENT OF THE COURT, AS I UNDERSTAND IT, IS THIS:  ART. I, ^
8, CL. 8, OF THE CONSTITUTION GIVES CONGRESS THE POWER "(TO PROMOTE THE
PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO
AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS
AND DISCOVERIES."  THE FRAMERS RECOGNIZED THAT INDIVIDUAL STATES MIGHT
HAVE PECULIARLY LOCAL INTERESTS THAT CONGRESS MIGHT NOT CONSIDER WORTHY
OF ATTENTION.  THUS, THE CONSTITUTIONAL PROVISION DOES NOT, OF ITS OWN
FORCE, BAR STATES FROM PROMOTING THOSE LOCAL INTERESTS.  HOWEVER, AS
THE COURT NOTED IN SEARS, ROEBUCK & CO. V. STIFFEL CO., 376 U.S. 225
(1964), WITH RESPECT TO VERY PARTICULAR ITEM WITHIN GENERAL CLASSES
ENUMERATED IN THE RELEVANT STATUTES, CONGRESS HAD BALANCED THE NEED TO
PROMOTE INVENTION AGAINST THE DESIRE TO PRESERVE FREE COMPETITION, AND
HAD CONCLUDED THAT IT WAS IN THE NATIONAL INTEREST TO PRESERVE
COMPETITION AS TO EVERY ITEM THAT COULD NOT BE PATENTED DEMONSTRATED
THAT, IN THE JUDGMENT OF CONGRESS, IT WAS BEST TO LET COMPETITION IN
THE PRODUCTION OF THAT ITEM GO UNRESTRICTED.  THE SITUATION WITH REGARD
TO COPYRIGHTS IS SAID TO BE SIMILAR.  THERE CONGRESS ENUMERATED CERTAIN
CLASSES OF WORKS FOR WHICH A COPYRIGHT MAY BE SECURED.  17 U.S.C. ^ 5.
ITS SILENCE AS TO OTHER CLASSES DOES NOT REFLECT A CONSIDERED JUDGMENT
ABOUT THE RELATIVE IMPORTANCE OF COMPETITION AND PROMOTION OF "SCIENCE
AND USEFUL ARTS."  THIS, THE COURT SAYS, THE STATES REMAIN FREE TO
PROTECT AS THEY WILL "WRITINGS"  NOT IN THE NEUMERATED CLASSES, UNTIL
CONGRESS ACTS.  SINCE SOUND RECORDINGS FIXED PRIOR TO FEBRAURY 15,
1972, WERE NOT ENUMERATED BY CONGRESS AS SUBJECT TO COPYRIGHTING, /1/
THE STATES MAY PROTECT SUCH RECORDINGS. 

WITH RESPECT, I CANNOT ACCEPT THE FINAL STEP OF THE ARGUMENT.  IN MY
VIEW, CONGRESS HAS DEMONSTRATED ITS DESIRE TO EXERCISE THE FULL GRANT
OF CONSTITUTIONAL POWER.  TITLE 17 U.S.C. ^ 4, STATES:  "THE WORKS FOR
WHICH COPYRIGHT MAY BE SECURED UNDER THIS TITLE SHALL INCLUDE ALL THE
WRITINGS OF AN AUTHOR".  THE USE OF THE CONSTITUTIONAL TERMS "WRITINGS"
AND "AUTHOR" RATHER STRONGLY SUGGESTS THAT CONGRESS INTENDED TO FOLLOW
THE CONSTITUTIONAL GRANT.  IT COULD EXERCISE THE POWER GIVEN IT BY THE
CONSTITUTION IN TWO WAYS:  EITHER BY PROTECTING ALL WRITINGS, OR BY
PROTECTING ALL WRITINGS WITHIN DESIGNATED CLASSES AND LEAVING OPEN TO
COMPETITION ALL WRITINGS IN OTHER CLASSES.  SECTION 5 SHOWS THAT THE
LATTER COURSE WAS CHOSEN, FOR IT ENUMERATES VARIOUS CLASSES OF WORKS
THAT MAY BE REGISTERED.  /2/  ORDINARILY, THE FAILURE TO ENUMERATE
"SOUND RECORDINGS" IN ^ 5 WOULD NOT BE TAKEN AS AN EXPRESSION OF
CONGRESS'  DESIRE TO LET FREE COMPETITION BEGIN IN THE REPRODUCTION OF
SUCH RECORDINGS, FOR, BECAUSE OF THE REALITIES OF THE LEGISLATIVE
PROCESS, IT IS GENERALLY DIFFICULT TO INFER FROM A FAILURE TO ACT ANY
AFFIRMATIVE CONCLUSIONS.  CF. CLEVELAND V. UNITED STATES, 329 U.S. 14,
22 (1946) (RUTLEDGE, J., CONCURRING).  BUT IN SEARS AND ITS COMPANION
CASE, COMPCO CORP. V. DAY-BRITE LIGHTING, 376 U.S. 234 (1964), THE
COURT DETERMINED THAT WITH RESPECT TO PATENTS AND COPYRIGHTS, THE
ORDINARY PRACTICE WAS NOT TO PREVAIL.  IN VIEW OF THE IMPORTANCE OF NOT
IMPOSING UNNECESSARY RESTRAINTS ON COMPETITION, THE COURT ADOPTED IN
THOSE CASES A RULE OF CONSTRUCTION THAT, UNLESS THE FAILURE TO PROVIDE
PATENT OR COPYRIGHT PROTECTION FOR SOME CLASS OF WORKS COULD CLEARLY BE
SHOWN TO REFLECT A JUDGMENT THAT STATE REGULATION WAS PERMITTED, THE
SILENCE OF CONGRESS WOULD BE TAKEN TO REFLECT A JUDGMENT THAT FREE
COMPETITION SHOULD PREVAIL.  I DO NOT FIND IN SEARS AND COMPCO A
LIMITATION ON THAT RULE OF CONSTRUCTION TO GENERAL CLASSES THAT
CONGRESS HAS ENUMERATED ALTHOUGH, OF COURSE, ON THE FACTS OF THOSE
CASES ONLY ITEMS IN SUCH CLASSES WERE INVOLVED; RATHER, THE BROADEST
LANGUAGE WAS USED IN THOSE CASES.  /3/  NOR CAN I FIND IN THE COURSE OF
LEGISLATION SUFFICIENT EVIDENCE TO CONVINCE ME THAT CONGRESS DETERMINED
TO PERMIT STATE REGULATION OF THE REPRODUCTION OF SOUND RECORDINGS. 
FOR, WHENEVER TECHNOLOGICAL ADVANCES MADE EXTENSION OF COPYRIGHT
PROTECTION SEEM WISE, CONGRESS HAS ACTED PROMPTLY.  SEE ANTE, AT 562 -
563, N. 17.  /4/  THIS SEEMS TO ME TO REFLECT THE SAME JUDGMENT THAT
THE COURT FOUND IN SEARS AND COMPCO:  CONGRESS HAS DECIDED THAT FREE
COMPETITION SHOULD BE THE GENERAL RULE, UNTIL IT IS CONVINCED THAT THE
FAILURE TO PROVIDE COPYRIGHT OR PATENT PROTECTION IS HINDERING "THE
PROGRESS OF SCIENCE AND USEFUL ARTS." 

THE BUSINESS OF RECORD PIRACY IS NOT AN ATTRACTIVE ONE; PERSONS IN
THE BUSINESS CAPITALIZE ON THE TALENTS OF OTHERS WITHOUT NEEDING TO
ASSESS INDEPENDENTLY THE PROSPECT OF PUBLIC ACCEPTANCE OF A
PERFORMANCE.  BUT THE SAME MIGHT BE SAID OF PERSONS WHO COPY
"MECHANICAL CONFIGURATIONS."  SUCH PEOPLE DO PROVIDE LOW-COST
REPRODUCTIONS THAT MAY WELL BENEFIT THE PUBLIC.  IN LIGHT OF THE
PRESUMPTION OF SEARS AND COMPCO THAT CONGRESSIONAL SILENCE BETOKENS A
DETERMINATION THAT THE BENEFITS OF COMPETITION OUTWEIGH THE IMPEDIMENTS
PLACED ON CREATIVITY BY THE LACK OF COPYRIGHT PROTECTION, AND IN THE
ABSENCE OF A CONGRESSIONAL DETERMINATION THAT THE OPPOSITE IS TRUE, WE
SHOULD NOT LET OUR DISTASTE FOR "PIRATES" INTERFERE WITH OUR
INTERPRETATION OF THE COPYRIGHT LAWS.  I WOULD THEREFORE HOLD THAT, AS
TO SOUND RECORDINGS FIXED BEFORE FEBRUARY 15, 1972, THE STATES MAY NOT
ENFORCE LAWS LIMITING REPRODUCTION. 

[[DFN 

/1/  SOUND RECORDINGS FIXED AFTER THAT DATE MAY BE COPYRIGHTED. 
PUB. L. 92 - 140, 85 STAT. 391, 17 U.S.C. ^ 5(N) (1970 ED., SUPP. I). 

/2/  FROM THE LANGUAGE OF ^ 4 AND THE PROVISO OF ^ 5, IT COULD BE
RATHER STRONGLY ARGUED THAT CONGRESS HAD INTENDED TO AFFORD PROTECTION
TO EVERY WRITING.  I AGREE WITH THE COURT, HOWEVER, THAT THE CONSISTENT
ADMINISTRATIVE INTERPRETATION OF THOSE SECTIONS, IN CONJUNCTION WITH
THE PRACTICAL DIFFICULTY OF APPLYING TO NOVEL CASES CERTAIN STATUTORY
REQUIREMENTS, LIKE THAT REQUIRING PLACEMENT, OF THE NOTICE OF COPYRIGHT
ON EVERY COPY, 17 U.S.C. ^ 10, PRECLUDES SUCH AN ARGUMENT. 

/3/  IT BEARS NOTING THAT IN SEARS, ROEBUCK & CO. V. STIFFEL CO.,
376 U.S. 225 (1964), THE COURT REPEATEDLY REFERRED TO THE PATENT AND
COPYRIGHT STATUTES AS IF THE SAME RULES OF INTERPRETATION APPLIED TO
BOTH.  SEE, E. G., ID., AT 228, 231 N. 7; COMPCO CORP. V. DAY-BRITE
LIGHTING, 376 U.S. 234, 237 (1964). 

/4/  BETWEEN 1909 AND 1951, CONGRESS' ATTENTION WAS REPEATEDLY DRAWN
TO PROBLEMS OF COPYRIGHTING SOUND RECORDINGS.  MANY BILLS TO PROVIDE
COPYRIGHT PROTECTION FOR SUCH RECORDINGS WERE INTRODUCED, BUT NONE WERE
ENACTED.  SEE RINGER, THE UNAUTHORIZED DUPLICATION OF SOUND RECORDINGS,
STUDIES PREPARED FOR THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND
COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY, 86TH CONG., 2D
SESS., 21 - 37 (COMM. PRINT 1961).  RESPONDENT ARGUES THAT CONGRESS
FAILED TO ENACT THESE BILLS PRIMARILY OUT OF UNCERTAINTY ABOUT THE
RELATIONSHIP BETWEEN FEDERAL LAW AND INTERNATIONAL COPYRIGHT
CONVENTIONS, AND WAS COMFORTED IN THE KNOWLEDGE THAT PROTECTION WAS
AVAILABLE UNDER STATE LAW.  SEE BRIEF FOR RESPONDENT 28 - 32.  HOWEVER,
IT IS ENOUGH THAT CONGRESS WAS AWARE OF THE PROBLEM, AND COULD HAVE
ACTED, AS IT DID WHEN OTHER TECHNOLOGICAL INNOVATIONS PRESENTED NEW
PROBLEMS, RATHER EXPEDITIOUSLY.  THE PROBLEMS THAT CONGRESS CONFRONTED
IN 1971 DID NOT SPRING UP IN 1970, BUT HAD EXISTED, AND CONGRESS HAD
NOT ACTED, FOR MANY YEARS BEFORE. 

ARTHUR LEEDS ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

DAVID M. SCHACTER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WAS ROGER ARNEBERGH. 

FRANCIS M. PINCKNEY FILED A BRIEF FOR CUSTOM RECORDING CO., INC., ET
AL. AS AMICI CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF ASSISTANT
ATTORNEY GENERAL, WILLIAM E. JAMES AND DORIS H. MAIER, ASSISTANT
ATTORNEYS GENERAL, AND CHARLES P. JUST, DEPUTY ATTORNEY GENERAL, FOR
THE STATE OF CALIFORNIA; BY ROBERT L. SHEVIN, ATTORNEY GENERAL, PRO SE,
AND WILLIAM J. DUNAJ, SPECIAL ASSISTANT ATTORNEY GENERAL, FOR THE
ATTORNEY GENERAL OF FLORIDA; BY LOUIS J. LEFKOWITZ, ATTORNEY GENERAL,
PRO SE, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND
DANIEL M. COHEN, ASSISTANT ATTORNEY GENERAL, FOR THE ATTORNEY GENERAL
OF NEW YORK; BY J. SHANE CREAMER, ATTORNEY GENERAL, FOR THE
COMMONWEALTH OF PENNSYLVANIA; BY DAVID M. PACK, ATTORNEY GENERAL OF
TENNESSEE; BY CRAWFORD C. MARTIN, ATTORNEY GENERAL, PRO SE, AND CHARLES
F. HERRING FOR THE ATTORNEY GENERAL OF TEXAS; BY SIDNEY A. DIAMOND AND
ERNEST S. MEYERS FOR RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.;
BY PAUL G. ZURKOWSKI FOR INFORMATION INDUSTRY ASSOCIATION; BY HENRY
KAISER, EUGENE GRESSMAN, RONALD ROSENBERG, AND MORTIMER BECKER FOR
AMERICAN FEDERATION OF MUSICIANS ET AL.; AND BY JULIAN T. ABELES AND
ROBERT C. OSTERBERG FOR HARRY FOX AGENCY, INC.
..END :



















UNITED STATES V. LITTLE LAKE MISERE LAND CO., INC., ET AL., 412 U.S.
580 



       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT 

     NO. 71-- 1459.  ARGUED JANUARY 15 - 16, 1973 -- DECIDED JUNE

  18, 1973; 453 F.2D 360, REVERSED AND REMANDED. 


    PURSUANT TO THE MIGRATORY BIRD CONSERVATION ACT, THE UNITED

  ACQUIRED LAND PARCELS IN LOUISIANA FOR A WILDLIFE REFUGE, ONE BY

  DEED IN 1937, THE OTHER BY CONDEMNATION IN 1939.  MINERAL RIGHTS

  WERE RESERVED TO THE RESPONDENT FORMER OWNERS FOR A PERIOD OF 10

  YEARS, SUBJECT TO EXTENSION IF CERTAIN DETAILED EXPLORATION AND

  PRODUCTION CONDITIONS WERE MET, AFTER WHICH COMPLETE FEE TITLE

  WAS TO VEST IN THE UNITED STATES.  THE 10-YEAR PERIOD EXPIRED

  WITHOUT THE EXTENSION CONDITIONS BEING MET.  RESPONDENTS

  CONTINUED TO CLAIM THE MINERAL RIGHTS, RELYING ON LOUISIANA ACT

  315 OF 1940, WHICH, AS APPLIED RETROACTIVELY, PROVIDES THAT

  MINERAL RIGHTS RESERVED IN LAND CONVEYANCES TO THE UNITED STATES

  SHALL BE "IMPRESCRIPTIBLE," THUS, IN EFFECT, EXTENDING

  INDEFINITELY THE FORMER OWNERS' MINERAL RESERVATIONS.  THE

  GOVERNMENT BROUGHT THIS SUIT TO QUIET TITLE.  THE DISTRICT COURT

  ENTERED SUMMARY JUDGMENT FOR THE RESPONDENTS, CONCLUDING THAT

  LEITER MINERALS, INC. V. UNITED STATES, 329 F.2D 85, WAS

  DISPOSITIVE OF THE ISSUES, NOTWITHSTANDING THAT THAT JUDGMENT HAD

  BEEN VACATED BY THIS COURT AND THE CASE REMANDED WITH

  INSTRUCTIONS TO DISMISS THE COMPLAINT AS MOOT.  THE COURT OF

  APPEALS AFFIRMED.  HELD:  UNDER SETTLED PRINCIPLES GOVERNING THE

  CHOICE OF LAW BY FEDERAL COURTS, LOUISIANA'S ACT 315 OF 1940 DOES

  NOT APPLY TO THE MINERAL RESERVATIONS AGREED TO BY THE PARTIES
IN

  1937 AND 1939.  PP. 590 - 604. 

     (AHERE, WHERE THE LAND ACQUISITION TO WHICH THE UNITED STATES

IS A PARTY ARISES FROM AND BEARS HEAVILY UPON A FEDERAL

REGULATORY PROGRAM, THE CHOICE-OF-LAW TASK IS A FEDERAL ONE FOR

  FEDERAL COURTS, AS DEFINED BY CLEARFIELD TRUST CO. V. UNITED

  STATES, 318 U. S. 363.  PP. 590 - 593. 

(BABSENCE OF A PROVISION DEALING WITH CHOICE OF LAW IN THE

  MIGRATORY BIRD CONSERVATION ACT DOES NOT LIMIT THE REACH OF

  FEDERAL LAW, AS INTERSTITIAL FEDERAL LAWMAKING IS A BASIC

  RESPONSIBILITY OF THE FEDERAL COURTS.  P. 593. 

   (CEVEN ASSUMING THAT THE ESTABLISHED BODY OF STATE PROPERTY LAW

  SHOULD GENERALLY GOVERN FEDERAL LAND ACQUISITIONS, ACT 315, AS

  RETROACTIVELY APPLIED, MAY NOT, BECAUSE IN DETERMINING THE

  APPROPRIATENESS OF "BORROWING" STATE LAW, SPECIFIC ABERRANT OR

  HOSTILE STATE RULES DO NOT PROVIDE APPROPRIATE STANDARDS FOR

  FEDERAL LAW.  UNDER ACT 315 LAND ACQUISITIONS EXPLICITLY

  AUTHORIZED BY FEDERAL STATUTE ARE MADE SUBJECT TO A RULE OF

  RETROACTIVE IMPRESCRIPTIBILITY, A RULE PLAINLY HOSTILE TO THE

  UNITED STATES, AND ONE THAT DEPRIVES THE UNITED STATES OF

  BARGAINED-FOR CONTRACTUAL INTERESTS.  PP. 594 - 597. 

     (DTO PERMIT STATE LEGISLATION TO ABROGATE THE EXPLICIT TERMS
OF

  A PRIOR FEDERAL LAND ACQUISITION WOULD SERIOUSLY IMPAIR FEDERAL

STATUTORY PROGRAMS AND THE CERTAINTY AND FINALITY THAT ARE

  INDISPENSABLE TO LAND TRANSACTIONS.  PP. 597 - 599. 

   (EACT 315, AS APPLIED RETROACTIVELY, SERVES NO LEGITIMATE AND

  IMPORTANT STATE INTERESTS THE FULFILLMENT OF WHICH CONGRESS MIGHT

  HAVE CONTEMPLATED THROUGH APPLICATION OF "BORROWED" STATE LAW. 

  PP. 599 - 601. 

     (FIN 1937 AND 1939, THE GOVERNMENT COULD NOT ANTICIPATE THAT

  THE MINERAL RESERVATIONS IN ISSUE MIGHT BE CHARACTERIZED, UNDER

  PRESENT LOUISIANA LAW, AS INDEFINITE IN DURATION AND FREELY

  REVOCABLE.  A LATE-CRYSTALLIZING STATE LAW DOCTRINE MAY NOT

  MODIFY THE CLEAR AND EXPLICIT CONTRACTUAL EXPECTATIONS OF THE

  UNITED STATES.  PP. 602 - 603. 

     (GAS IT IS CLEAR THAT ACT 315 DOES NOT APPLY HERE, IT IS NOT

 NECESSARY TO CHOOSE BETWEEN "BORROWING" SOME RESIDUAL STATE RULE

  OF INTERPRETAION OR FORMULATING AN INDEPENDENT FEDERAL "COMMON

  LAW" RULE; NEITHER RULE IS THE LAW OF LOUISIANA, YET EITHER RULE

  RESOLVES THIS DISPUTE IN THE GOVERNMENT'S FAVOR.  PP. 603 - 604. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, WHITE, MARSHALL, BLACKMUN, AND POWELL, JJ., JOINED.  STEWART,
J., POST, P. 605, AND REHNQUIST, J., POST, P. 606, FILED OPINIONS
CONCURRING IN THE JUDGMENT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

[[HC582'(ORIGINAL DOCUMENT PAGE 582)' 

WE GRANTED THE WRIT IN THIS CASE TO CONSIDER WHETHER STATE LAW MAY
RETROACTIVELY ABROGATE THE TERMS OF WRITTEN AGREEMENTS MADE BY THE
UNITED STATES WHEN IT ACQUIRES LAND FOR PUBLIC PURPOSES EXPLICITLY
AUTHORIZED BY CONGRESS. 

THE UNITED STATES INITIATED THIS LITIGATION IN 1969 IN THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, SEEKING TO
QUIET TITLE TO TWO ADJACENT PARCELS OF LAND IN CAMERON PARISH,
LOUISIANA, WHICH THE GOVERNMENT HAD ACQUIRED PURSUANT TO THE MIGRATORY
BIRD CONSERVATION ACT, 45 STAT. 1222, AS PART OF THE LACASSINE WILDLIFE
REFUGE.  /1/  TITLE TO ONE PARCEL WAS ACQUIRED BY THE UNITED STATES BY
PURCHASE ON JULY 23, 1937; TO THE OTHER PARCEL BY A JUDGMENT OF
CONDEMNATION ENTERED AUGUST 30, 1939.  BOTH THE 1939 ACT OF SALE AND
THE 1939 JUDGMENT OF CONDEMNATION RESERVED TO THE RESPONDENT LAKE
MISERE OIL, GAS, SULPHUR, AND OTHER MINERALS FOR A PERIOD OF 10 YEARS
FROM THE DATE OF VESTING OF TITLE IN THE UNITED STATES.  /2/  THE
RESERVATION WAS TO CONTINUE IN EFFECT "AS LONG (AFTER THE INITIAL TEN
YEAR PERIOD) AS OIL, GAS, SULPHUR OR OTHER MINERAL IS PRODUCED . . . OR
SO LONG THEREAFTER AS (RESPONDENTS) SHALL CONDUCT DRILLING OR REWORKING
OPERATIONS THEREON WITH NO CESSATION OF MORE THAN SIXTY (60) DAYS
CONSECUTIVELY UNTIL PRODUCTION RESULTS; AND, IF PRODUCTION RESULTS, SO
LONG AS SUCH MINERAL IS PRODUCED." 

[[HC583'(ORIGINAL DOCUMENT PAGE 583)'  THE DEED AND THE JUDGMENT OF
CONDEMNATION FURTHER RECITED THAT AT THE END OF 10 YEARS OR AT THE END
OF ANY PERIOD AFTER 10 YEARS DURING WHICH THE ABOVE CONDITIONS HAD NOT
BEEN MET, "THE RIGHT TO MINE, PRODUCE AND MARKET SAID OIL, GAS, SULPHUR
OR OTHER MINERAL SHALL TERMINATE . . . AND THE COMPLETE FEE TITLE TO
SAID LANDS SHALL THEREBY BECOME VESTED IN THE UNITED STATES." 

THE PARTIES STIPULATED, AND THE DISTRICT COURT FOUND, THAT AS TO
BOTH THE PARCELS IN ISSUE HERE, NO DRILLING, REWORKING, OR OTHER
OPERATIONS WERE CONDUCTED AND NO MINERALS WERE OBTAINED FOR A PERIOD OF
MORE THAN 10 YEARS FOLLOWING THE ACT OF SALE AND JUDGMENT OF
CONDEMNATION, RESPECTIVELY.  THUS, UNDER THE TERMS OF THESE
INSTRUMENTS, FEE TITLE IN THE UNITED STATES RIPENED AS OF 1947 AND
1949, RESPECTIVELY -- 10 YEARS FROM THE DATES OF CREATION. 

[[HC584'(ORIGINAL DOCUMENT PAGE 584)' IN 1955, THE UNITED STATES
ISSUED OIL AND GAS LEASES APPLICABLE TO THE LANDS IN QUESTION. 

RESPONDENTS, HOWEVER, CONTINUED TO CLAIM THE MINERAL RIGHTS AND
ACCORDINGLY ENTERED VARIOUS TRANSACTIONS PURPORTING TO DISPOSE OF THOSE
RIGHTS.  RESPONDENTS RELIED UPON LOUISIANA ACT 315 OF 1940, LA. REV.
STAT. ^ 9:5806 A (SUPP. 1973), WHICH PROVIDES: 

     "WHEN LAND IS ACQUIRED BY CONVENTIONAL DEED OR CONTRACT,

  CONDEMNATION OR EXPROPRIATION PROCEEDINGS BY THE UNITED STATES OF

  AMERICA, OR ANY OF ITS SUBDIVISIONS OR AGENCIES FROM ANY PERSON,

FIRM OR CORPORATION, AND BY THE ACT OF ACQUISITION, ORDER OR

  JUDGMENT, OIL, GAS OR OTHER MINERALS OR ROYALTIES ARE RESERVED,

  OR THE LAND SO ACQUIRED IS BY THE ACT OF ACQUISITION CONVEYED

  SUBJECT TO A PRIOR SALE OR RESERVATION OF OIL, GAS OR OTHER

  MINERALS OR ROYALTIES, STILL IN FORCE AND EFFECT, THE RIGHTS SO

  RESERVED OR PREVIOUSLY SOLD SHALL BE IMPRESCRIPTIBLE." 

RESPONDENTS CONTENDED THAT THE 1940 ENACTMENT RENDERED INOPERATIVE THE
CONDITIONS SET FORTH IN 1937 AND 1939 FOR THE EXTINGUISHMENT OF THE
RESERVATIONS.  THE DISTRICT COURT CONCLUDED THAT THE COURT OF APPEALS'
PRIOR DECISION IN LEITER MINERALS, INC. V. UNITED STATES, 329 F.2D 85
(CA5 1964), REQUIRED RESOLUTION OF THIS CASE IN FAVOR OF RESPONDENTS,
NOTWITHSTANDING THAT WE HAD VACATED THE COURT OF APPEALS' JUDGMENT IN
LEITER MINERALS AND REMANDED WITH INSTRUCTIONS TO DISMISS THE COMPLAINT
AS MOOT.  381 U.S. 413 (1965).  THE COURT OF APPEALS AFFIRMED, FOR THE
REASONS STATED IN ITS LEITER MINERALS HOLDING.  IT REJECTED THE
GOVERNMENT'S CONTRACT CLAUSE AND SUPREMACY CLAUSE OBJECTIONS ON THE
AUTHORITY OF UNITED STATES V. NEBO OIL CO., 190 F.2D 1003 (CA 5 1951),
AND FURTHER REJECTED THE GOVERNMENT'S ARGUMENT THAT ACT 315 WAS
UNCONSTITUTIONALLY DISCRIMINATORY AGAINST THE UNITED STATES.  THE COURT
OF APPEALS OBSERVED "THAT THE SAME PRINCIPLE APPLIES TO ACQUISITIONS BY
THE STATE OF LOUISIANA (LA. REV. STAT. ^ 9:5806B), AND THAT THE ACT
REALLY DOES NOTHING MORE THAN PLACE CITIZENS OF LOUISIANA IN THE SAME
POSITION AS CITIZENS OF OTHER STATES WHOSE LAND HAS BEEN PURCHASED OR
CONDEMNED BY THE UNITED STATES." 

[[HC585'(ORIGINAL DOCUMENT PAGE 585)'  453 F.2D 360, 362 (1971).  WE
REVERSE. 

        I 

LITIGATION INVOLVING ACT 315 BEGAN MORE THAN A QUARTER CENTURY AGO. 
THE LEITER MINERALS CASE, UPON WHICH THE COURT OF APPEALS BASED ITS
DECISION IN THIS CASE, IS ONLY THE PRINCIPAL HOLDING IN THE AREA.  THE
FIRST CASE TO ARISE INVOLVING ACT 315, WHITNEY NAT. BANK V. LITTLE
CREEK OIL CO., GREW OUT OF A 1932 SALE OF MINERAL RIGHTS THAT SPECIFIED
A 10-YEAR PERIOD OF PRESCRIPTION.  THE SURFACE PROPERTY WAS CONVEYED TO
THE UNITED STATES IN 1936, SUBJECT TO THE 1932 MINERAL SALE, AND IN
1947 THE QUESTION AROSE WHETHER ACT 315 OF 1940 HAD THE EFFECT OF
EXTENDING INDEFINITELY THE SERVITUDE CREATED BY THE 1932 SALE.  THE
LOUISIANA SUPREME COURT HELD THAT ACT 315 OF 1940 WAS FULLY APPLICABLE
TO THE 1936 TRANSACTION -- "NOT BECAUSE THERE IS ANYTHING IN THE TERMS
OF THE STATUTE TO INDICATE THAT IT WAS INTENDED TO HAVE A RETROACTIVE
APPLICATION, BUT BECAUSE OF THE GENERAL RULE OF LAW ESTABLISHED BY THE
JURISPRUDENCE OF THIS COURT THAT LAWS OF PRESCRIPTION AND THOSE
LIMITING THE TIME WITHIN WHICH ACTIONS MAY BE BROUGHT ARE RETROSPECTIVE
IN THEIR OPERATION."  212 LA. 949, 33 SO.2D 693, 696 (1947).  /3/  THE
COURT ACKNOWLEDGED THE CONTENTION THAT IF ACT 315 WERE APPLIED
RETROACTIVELY, IT MIGHT BE UNCONSTITUTIONAL, BUT DISMISSED THE
CONSTITUTIONAL ISSUE WITHOUT RESOLVING IT FOR FAILURE TO JOIN THE
UNITED STATES, A NECESSARY PARTY. 

[[HC586'(ORIGINAL DOCUMENT PAGE 586)' 

WHITNEY BANK SET THE STAGE FOR THE FIRST FEDERAL COURT TEST OF ACT
315, AS CONSTRUED TO HAVE RETROACTIVE APPLICATION, IN UNITED STATES V.
NEBO OIL CO., SUPRA, AFF'G 90 F. SUPP. 73 (WD LA. 1950).  THERE THE
UNITED STATES BROUGHT SUIT AGAINST NEBO OIL (THE SUCCESSOR TO THE 1932
MINERAL PURCHASER OF THE WHITNEY BANK CASE) TO SECURE A DECLARATORY
JUDGMENT THAT THE UNITED STATES OWNED THE ACREAGE IT PURCHASED IN 1936
SUBJECT ONLY TO THE 10-YEAR RULE OF PRESCRIPTION SPECIFIED AT THE TIME
OF THE ORIGINAL 1932 SALE OF MINERAL RIGHTS.  BUT THE COURT OF APPEALS
UPHELD THE APPLICATION OF ACT 315 TO THE PREVIOUSLY CONSUMMATED
TRANSACTION, STRESSING THAT REVERSIONARY ESTATES ARE UNKNOWN IN
LOUISIANA LAW AND THAT, AS A RESULT, THE UNITED STATES IN 1936 TOOK
"NOTHING MORE THAN A MERE EXPECTATION, OR HOPE, BASED UPON AN
ANTICIPATED CONTINUANCE OF THE APPLICABLE GENERAL LAWS . . . (THIS)
MERE EXPECTANCY . . . CANNOT BE REGARDED AS A VESTED RIGHT PROTECTED BY
THE CONSTITUTION."  190 F.2D, AT 1008 - 1009.  /4/ 

IN THE LEITER MINERALS LITIGATION, RETROSPECTIVE APPLICATION OF ACT
315 TO A DETAILED, CONDITIONAL MINERAL RESERVATION WAS IN ISSUE FOR THE
FIRST TIME. 

[[HC587'(ORIGINAL DOCUMENT PAGE 587)'  LEITER MINERALS, INC.,
SUCCEEDED TO THE INTERESTS OF THE LEITER FAMILY, WHICH IN 1938 HAD SOLD
A SUBSTANTIAL TRACT IN PLAQUEMINES PARISH, LOUISIANA, TO THE UNITED
STATES.  LEITER'S FEDERAL SALE WAS SUBJECT TO A MINERAL RESERVATION IN
LEITER'S FAVOR, PROVIDING IN ESSENCE THAT THE RESERVATION WOULD BE
EXTENDED FOR FIVE YEARS BEYOND ITS INITIAL 10-YEAR DURATION WHENEVER
COMMERCIALLY ADVANTAGEOUS MINERAL EXTRACTION HAD OCCURRED DURING 50
DAYS OF A DEFINED PERIOD.  /5/  AT THE EXPIRATION OF ANY PERIOD DURING
WHICH THE CONDITIONS FOR EXTENSION HAD NOT BEEN MET, THE RIGHT TO MINE
WOULD TERMINATE "AND COMPLETE FEE IN THE LAND BECOMES VESTED IN THE
UNITED STATES."  THE MINERAL RESERVATION EXPIRED BY ITS OWN TERMS; THE
GOVERNMENT GRANTED A VALUABLE MINERAL LEASE; AND LEITER INVOKED ACT 315
TO SUPPORT ITS CLAIM TO A SERVITUDE OF CONTINUING DURATION. 

AFTER A FALSE START IN THE LOUISIANA COURTS, THE ENSUING LITIGATION
FOUND ITS WAY INTO A FEDERAL FORUM.  THE UNITED STATES SUED IN THE
EASTERN DISTRICT OF LOUISIANA TO QUIET TITLE AND TO ENJOIN THE
CONCURRENT STATE COURT PROCEEDINGS INITIATED BY LEITER.  THE COURT OF
APPEALS AFFIRMED AN INJUNCTION GRANTED BY THE DISTRICT COURT, /6/  AND
THIS COURT AGREED, BUT REMANDED TO THE COURT OF APPEALS WITH
INSTRUCTIONS TO SECURE AN AUTHORITATIVE CONSTRUCTION OF ACT 315 BEFORE
PROCEEDING TO THE DIFFICULT CONSTITUTIONAL ISSUES IN THE CASE. 

[[HC588'(ORIGINAL DOCUMENT PAGE 588)'  LEITER MINERALS, INC. V.
UNITED STATES, 352 U.S. 220, 229 (1957).  /7/ 

ADHERING TO THE TERMS OF THE REMAND, LEITER SOUGHT A DECLARATORY
JUDGMENT IN THE LOUISIANA COURTS, WHICH EXPRESSED SOME CONTINUING DOUBT
OVER THE BREADTH OF THEIR RESPONSIBILITY FOR RESOLVING THE LEITER
CONTROVERSY ON ITS OWN FACTS.  ULTIMATELY, THE LOUISIANA SUPREME COURT
TOOK JURISDICTION OF THE CASE AND RENDERED A DECLARATORY JUDGMENT
LIMITED TO GENERAL ELUCIDATION OF ACT 315, WITHOUT APPLYING THE ACT TO
THE SPECIFIC TERMS OF THE LEITER MINERAL RESERVATION ITSELF.  LEITER
MINERALS, INC. V. CALIFORNIA CO., 241 LA. 915, 132 SO.2D 845 (1961). 
THE LOUISIANA SUPREME COURT EXPRESSED ITS CONCLUSIONS AS FOLLOWS: 

"FIRST, THAT IF THE RESERVATION IN THE LEITER DEED IS CONSTRUED AS
ESTABLISHING A MINERAL SERVITUDE FOR A DEFINITE, FIXED, AND SPECIFIED
TIME WHICH HAS ELAPSED, THEN ACT 315 OF 1940 IS NOT APPLICABLE AND
CANNOT BE CONSTITUTIONALLY APPLIED; AND SECOND, THAT IF THE RESERVATION
IS CONSTRUED AS NOT ESTABLISHING A SERVITUDE FOR A FIXED, DEFINITE AND
CERTAIN TIME, AND IF IT IS DECIDED THAT THE PROVISIONS OF THE
RESERVATION SHOW THAT THE PARTIES WERE STIPULATING FOR A PERIOD OF
CONTRACTUAL PRESCRIPTION FOR THE CONDITIONAL EXTINGUISHMENT OF THE
MINERAL SERVITUDE CREATED, THEN ACT 315 OF 1940 IS APPLICABLE AND
CONSTITUTIONAL."  ID., AT 942, 132 SO.2D, AT 854 - 855. 

[[HC589'(ORIGINAL DOCUMENT PAGE 589)'  RECOGNIZING THAT "THE
INTERPRETATION OF THIS RESERVATION IS FOR THE UNITED STATES COURTS, AND
NOT FOR US IN THIS PROCEEDING," ID., AT 930, 132 SO.2D, AT 850, THAT
COURT NEVERTHELESS HINTED BROADLY THAT IT VIEWED THE LEITER RESERVATION
AS ONE ESTABLISHING A RESERVATION FOR AN INDEFINITE PERIOD OF TIME, AND
THUS ONE SUBJECT TO RETROACTIVE APPLICATION OF ACT 315.  SEE ID., AT
936, 938, 132 SO.2D, AT 852, 853. 

THE PARTIES THEN RETURNED TO FEDERAL COURT.  THE DISTRICT COURT HELD
THAT THE MINERAL RESERVATION IN THE LEITER DEED CREATED A MINERAL
SERVITUDE FOR A FIXED PERIOD AND THAT, UNDER THE TERMS OF THE LOUISIANA
SUPREME COURT'S DECLARATORY RULING, AS A MATTER OF STATE LAW THE
RESERVATION WAS NOT AFFECTED BY ACT 315.  204 F. SUPP. 560 (ED LA.
1962).  THE COURT OF APPEALS REVERSED.  IT REJECTED THE GOVERNMENT'S
CONTENTION THAT FEDERAL LAW CONTROLLED THE RIGHTS OF THE UNITED STATES
UNDER THE RESERVATION, AND HELD, INSTEAD, THAT THOSE RIGHTS WERE TO BE
GOVERNED BY LOUISIANA LAW.  THE COURT OF APPEALS BELIEVED THAT THE
LOUISIANA SUPREME COURT HAD VIEWED LEITER'S SERVITUDE AS "ONE OF
INDEFINITE DURATION" AND IT AGREED WITH THAT VIEW.  UNDER LOUISIANA
LAW, THEREFORE, THE RESERVATION "PROVIDED) FOR A CONTRACTUAL
PRESCRIPTION FOR THE CONDITIONAL EXTINGUISHMENT OF THE MINERAL
SERVITUDE WHICH WAS RENDERED INOPERATIVE BY (ACT 315)."  329 F.2D, AT
93.  AS TO THE GOVERNMENT'S CONTENTION THAT THE ACT, AS SO CONSTRUED,
UNCONSTITUTIONALLY IMPAIRED THE OBLIGATION OF CONTRACT, THE COURT OF
APPEALS CONCLUDED THAT THE DISCUSSION OF THAT MATTER IN ITS PRIOR
DECISION IN NEBO OIL, SUPRA, AND IN THE LOUISIANA SUPREME COURT'S
LEITER OPINION, MADE IT "UNNECESSARY FURTHER TO LABOR" THE POINT. 

[[HC590'(ORIGINAL DOCUMENT PAGE 590)'  ID., AT 94.  JUDGE GEWIN
DISSENTED.  ON BEING ADVISED BY THE PARTIES THAT THE CASE HAD BEEN
SETTLED, WE GRANTED CERTIORARI, VACATED THE JUDGMENT OF THE COURT OF
APPEALS, AND REMANDED THE CAUSE TO THE DISTRICT COURT WITH INSTRUCTIONS
TO DISMISS THE COMPLAINT AS MOOT.  381 U.S. 413 (1965). 

II 

THE ESSENTIAL PREMISE OF THE COURT OF APPEALS' DECISION IN THE
LEITER MINERALS CASE WAS THAT STATE LAW GOVERNS THE INTERPRETATION OF A
FEDERAL LAND ACQUISITION AUTHORIZED BY THE MIGRATORY BIRD CONSERVATION
ACT.  THE COURT OF APPEALS DID NOT SET FORTH IN DETAIL THE BASIS FOR
THIS PREMISE, /8/  BUT THAT COURT'S OPINION SEEMS TO SAY THAT STATE LAW
GOVERNS THIS LAND ACQUISITION BECAUSE, AT BOTTOM, IT IS AN "ORDINARY"
"LOCAL" LAND TRANSACTION TO WHICH THE UNITED STATES HAPPENS TO BE A
PARTY. 

[[HC591'(ORIGINAL DOCUMENT PAGE 591)'  THE SUGGESTION IS THAT THIS
COURT'S DECISION IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64 (1938),
COMPELS APPLICATION OF STATE LAW HERE BECAUSE THE RULES OF DECISIONS
ACT, 28 U.S.C. ^ 1652, /9/  REQUIRES APPLICATION OF STATE LAW IN THE
ABSENCE OF AN EXPLICIT CONGRESSIONAL COMMAND TO THE CONTRARY.  WE
DISAGREE. 

THE FEDERAL JURISDICTIONAL GRANT OVER SUITS BROUGHT BY THE UNITED
STATES IS NOT IN ITSELF A MANDATE FOR APPLYING FEDERAL LAW IN ALL
CIRCUMSTANCES.  THIS PRINCIPLE FOLLOWS FROM ERIE ITSELF, WHERE,
ALTHOUGH THE FEDERAL COURTS HAD JURISDICTION OVER DIVERSITY CASES, WE
HELD THAT THE FEDERAL COURTS DID NOT POSSESS THE POWER TO DEVELOP A
CONCOMITANT BODY OF GENERAL FEDERAL LAW.  MISHKIN, THE VARIOUSNESS OF
"FEDERAL LAW":  COMPETENCE AND DISCRETION IN THE CHOICE OF NATIONAL AND
STATE RULES FOR DECISION, 105 U. P. L. REV. 797, 799 (1957).  IT IS
TRUE, TOO, THAT "(THE GREAT BODY OF LAW IN THIS COUNTRY WHICH CONTROLS
ACQUISITION, TRANSMISSION, AND TRANSFER OF PROPERTY, AND DEFINES THE
RIGHTS OF ITS OWNERS IN RELATION TO THE STATE OR TO PRIVATE PARTIES, IS
FOUND IN THE STATUTES AND DECISIONS OF THE STATE."  DAVIES WAREHOUSE
CO. V. BOWLES, 321 U.S. 144, 155 (1944).  EVEN WHEN FEDERAL GENERAL LAW
WAS IN ITS HEYDAY, AN EXCEPTION WAS CARVED OUT FOR LOCAL LAWS OF REAL
PROPERTY.  SWIFT V. TYSON, 16 PET. 1, 18 (1842); SEE KUHN V. FAIRMOUNT
COAL CO., 215 U.S. 349, 360 (1910).  INDEED, BEFORE ERIE R. CO. V.
THOMPKINS, SUPRA, THIS COURT'S OPINIONS LEFT OPEN THE POSSIBILITY THAT
EVEN "THE UNITED STATES, WHILE PROTECTED BY THE CONSTITUTION FROM
DISCRIMINATORY STATE ACTION, AND PERHAPS CERTAIN OTHER SPECIAL FORMS OF
STATE CONTROL, WAS NEVERTHELESS GOVERNED GENERALLY IN ITS ORDINARY
PROPRIETARY RELATIONS BY STATE LAW." 

[[HC592'(ORIGINAL DOCUMENT PAGE 592)'  HART, THE RELATIONS BETWEEN
STATE AND FEDERAL LAW, 54 CO. L. REV. 489, 533 (1954).  SEE E. G.,
MASON V. UNITED STATES, 260 U.S. 545, 558 (1923). 

DESPITE THIS ARGUABLE BASIS FOR ITS REASONING THE COURT OF APPEALS
IN THE INSTANT CASE SEEMS NOT TO HAVE RECOGNIZED THAT HIS LAND
ACQUISITION, LIKE THAT IN LEITER MINERALS, IS ONE ARISING FROM AND
BEARING HEAVILY UPON A FEDERAL REGULATORY PROGRAM.  HERE, THE CHOICE-OF
LAW TASK IS A FEDERAL TASK FOR FEDERAL COURTS, AS DEFINED BY CLEARFIELD
TRUST CO. V. UNITED STATES, 318 U.S. 363 (1943).  SINCE ERIE, AND AS A
COROLLARY OF THAT DECISION, WE HAVE CONSISTENTLY ACTED ON THE
ASSUMPTION THAT DEALINGS WHICH MAY BE "ORDINARY" OR "LOCAL" AS BETWEEN
PRIVATE CITIZENS RAISE SERIOUS QUESTIONS OF NATIONAL SOVEREIGNTY WHEN
THE ARISE IN THE CONTEXT OF A SPECIFIC CONSTITUTIONAL OR STATUTORY
PROVISION; PARTICULARLY IS THIS SO WHEN TRANSACTIONS UNDERTAKEN BY THE
FEDERAL GOVERNMENT ARE INVOLVED, AS IN THIS CASE.  /10/  IN SUCH CASES,
THE CONSTITUTION OR ACTS OF CONGRESS "REQUIRE" OTHERWISE THAN THAT
STATE LAW GOVERN OF ITS OWN FORCE. 

[[HC593'(ORIGINAL DOCUMENT PAGE 593)' 

THERE WILL OFTEN BE NO SPECIFIC FEDERAL LEGISLATION GOVERNING A
PARTICULAR TRANSACTION TO WHICH THE UNITED STATES IS A PARTY; HERE, FOR
EXAMPLE, NO PROVISION OF THE MIGRATORY BIRD CONSERVATION ACT GUIDES US
TO CHOOSE STATE OR FEDERAL LAW IN INTERPRETING FEDERAL LAND ACQUISITION
AGREEMENTS UNDER THE ACT.  BUT SILENCE ON THAT SCORE IN FEDERAL
LEGISLATION IS NO REASON FOR LIMITING THE REACH OF FEDERAL LAW, AS THE
COURT OF APPEALS THOUGHT IN LEITER MINERALS.  TO THE CONTRARY, THE
INEVITABLE INCOMPLETENESS PRESENTED BY ALL LEGISLATION MEANS THAT
INTERSTITIAL FEDERAL LAWMAKING IS A BASIC RESPONSIBILITY OF THE FEDERAL
COURTS.  "AT THE VERY LEAST, EFFECTIVE CONSTITUTIONALISM REQUIRES
RECOGNITION OF POWER IN THE FEDERAL COURTS TO DECLARE, AS A MATTER OF
COMMON LAW OR 'JUDICIAL LEGISLATION,' RULES WHICH MAY BE NECESSARY TO
FILL IN INTERSTITIALLY OR OTHERWISE EFFECTUATE THE STATUTORY PATTERNS
ENACTED IN THE LARGE BY CONGRESS.  IN OTHER WORDS, IT MUST MEAN
RECOGNITION OF FEDERAL JUDICIAL COMPETENCE TO DECLARE THE GOVERNING LAW
IN AN AREA COMPRISING ISSUES SUBSTANTIALLY RELATED TO AN ESTABLISHED
PROGRAM OF GOVERNMENT OPERATION."  MISHKIN, 105 U. PA. L. REV., AT
800. 

THIS, THEN, IS WHAT HAS APTLY BEEN DESCRIBED AS THE "FIRST" OF THE
TWO HOLDINGS OF CLEARFIELD TRUST CO. V. UNITED STATES, SUPRA -- THAT
THE RIGHT OF THE UNITED STATES TO SEEK LEGAL REDRESS FOR FULLY
AUTHORIZED PROPRIETARY TRANSACTIONS "IS A FEDERAL RIGHT, SO THAT THE
COURTS OF THE UNITED STATES MAY FORMULATE A RULE OF DECISION." 
FRIENDLY, IN PRAISE OF ERIE -- AND OF THE NEW FEDERAL COMMON LAW, 39 N.
Y. U. L. REV. 383, 410 (1964).  AT LEAST THIS FIRST STEP OF THE
CLEARFIELD ANALYSIS IS APPLICABLE HERE.  WE DEAL WITH THE
INTERPRETATION OF A LAND ACQUISITION AGREEMENT (A) EXPLICITLY
AUTHORIZED, THOUGH NOT PRECISELY GOVERNED, BY THE MIGRATORY BIRD
CONSERVATION ACT AND (B) TO WHICH THE UNITED STATES ITSELF IS A PARTY. 
CF. BANK OF AMERICA V. PARNELL, 352 U.S. 29, 33 (1956).  AS IN
CLEARFIELD AND ITS PROGENY, "(THE DUTIES IMPOSED UPON THE UNITED STATES
AND THE RIGHTS ACQUIRED BY IT . . . FIND THEIR ROOTS IN THE SAME
FEDERAL SOURCES . . . IN ABSENCE OF AN APPLICABLE ACT OF CONGRESS IT IS
FOR THE FEDERAL COURTS TO FASHION THE GOVERNING RULE OF LAW ACCORDING
TO THEIR OWN STANDARDS."  318 U.S., AT 366 - 367; UNITED STATES V.
ALLEGHENY COUNTY, 322 U.S. 174, 183 (1944); UNITED STATES V. STANDARD
OIL CO., 332 U.S. 301, 305 (1947); BOARD OF COUNTY COMM'RS V. UNITED
STATES, 308 U.S. 343, 349 - 350 (1939).  /11/

        III 

THE NEXT STOP IN OUR ANALYSIS IS TO DETERMINE WHETHER THE 1937 AND
1939 LAND ACQUISITION AGREEMENTS IN ISSUE SHOULD BE INTERPRETED
ACCORDING TO "BORROWED" STATE LAW -- ACT 315 OF 1940.  THE AVAILABILITY
OF THIS CHOICE WAS EXPLICITLY RECOGNIZED IN CLEARFIELD TRUST ITSELF
/12/  AND FULLY ELABORATED SOME YEARS LATER IN UNITED STATES V.
STANDARD OIL CO., SUPRA.  THERE WE ACKNOWLEDGED THAT "IN MANY
SITUATIONS, AND APART FROM ANY SUPPOSED INFLUENCE OF THE ERIE DECISION,
RIGHTS, INTERESTS AND LEGAL RELATIONS OF THE UNITED STATES ARE
DETERMINED BY APPLICATION OF STATE LAW, WHERE CONGRESS HAS NOT ACTED
SPECIFICALLY."  332 U.S., AT 308. 

[[HC595'(ORIGINAL DOCUMENT PAGE 595)'  WE WENT ON TO OBSERVE THAT
WHETHER STATE LAW IS TO BE APPLIED IS A QUESTION "OF FEDERAL POLICY,
AFFECTING NOT MERELY THE FEDERAL JUDICIAL ESTABLISHMENT AND THE
GOUNDINGS OF ITS ACTION, BUT ALSO THE GOVERNMENT'S LEGAL INTERESTS AND
RELATIONS, A FACTOR NOT CONTROLLING IN THE TYPES OF CASES PRODUCING AND
GOVERNED BY THE ERIE RULING.  AND THE ANSWER TO BE GIVEN NECESSARILY IS
DEPENDENT UPON A VARIETY OF CONSIDERATIONS ALWAYS RELEVANT TO THE
NATURE OF THE SPECIFIC GOVERNMENTAL INTERESTS AND TO THE EFFECTS UPON
THEM OF APPLYING STATE LAW."  ID., AT 309 - 310.  SEE ALSO DE SYLVA V.
BALLENTINE, 351 U.S. 570, 580 (1956); RFC V. BEAVER COUNTY, 328 U.S.
204 (1946); BOARD OF COUNTY COMM'RS V. UNITED STATES, 308 U.S., AT 351
352; ROYAL INDEMNITY CO. V. UNITED STATES, 313 U.S. 289, 296 (1941);
UNITED STATES V. YAZELL, 382 U.S. 341, 356 - 357 (1966); CF. UNITED
STATES V. MITCHELL, 403 U.S. 190 (1971). 

THE GOVERNMENT URGES US TO DECIDE, VIRTUALLY WITHOUT QUALIFICATION,
THAT LAND ACQUISITION AGREEMENTS OF THE UNITED STATES SHOULD BE
GOVERNED BY FEDERALLY CREATED FEDERAL LAW.  CF. UNITED STATES V. 93.970
ACRES, 360 U.S. 328 (1959).  WE FIND IT UNNECESSARY TO RESOLVE THIS
CASE ON SUCH BROAD TERMS.  FOR EVEN IF IT BE ASSUMED THAT THE
ESTABLISHED BODY OF STATE PROPERTY LAW SHOULD GENERALLY GOVERN FEDERAL
LAND ACQUISITIONS, WE ARE PERSUADED THAT THE PARTICULAR RULE OF LAW
BEFORE US TODAY -- LOUISIANA'S ACT 315 OF 1940, AS RETROACTIVELY
APPLIED -- MAY NOT.  THE "REASONS WHICH MAY MAKE STATE LAW AT TIMES THE
APPROPRIATE FEDERAL RULE ARE SINGULARLY INAPPROPRIATE HERE." 
CLEARFIELD TRUST, 318 U.S., AT 367.  /13/ 

THE COURT IN THE PAST HAS BEEN CAREFUL TO STATE THAT, EVEN ASSUMING
IN GENERAL TERMS THE APPROPRIATENESS OF "BORROWING" STATE LAW, SPECIFIC
ABERRANT OR HOSTILE STATE RULES DO NOT PROVIDE APPROPRIATE STANDARDS
FOR FEDERAL LAW. 

 HC596'(ORIGINAL DOCUMENT PAGE 596)' IN DE SYLVA V. BALLENTINE,
SUPRA, WE HELD THAT WHETHER AN ILLEGITIMATE CHILD WAS A "CHILD" OF THE
AUTHOR ENTITLED UNDER THE COPYRIGHT ACT TO RENEW THE AUTHOR'S COPYRIGHT
WAS TO BE DETERMINED BY WHETHER, UNDER STATE LAW, THE CHILD WOULD BE AN
HEIR OF THE AUTHOR.  BUT MR. JUSTICE HARLAN'S OPINION FOR THE COURT
TOOK PAINS TO CAUTION THAT THE COURT'S HOLDING "DOES NOT MEAN THAT A
STATE WOULD BE ENTITLED TO USE THE WORD 'CHILDREN' IN A WAY ENTIRELY
STRANGE TO THOSE FAMILIAR WITH ITS ORDINARY USAGE . . ."  351 U.S., AT
581.  IN RFC V. BEAVER COUNTY, SUPRA, THE ISSUE WAS WHETHER THE
DEFINITION OF "REAL PROPERTY," OWNED BY THE RFC AND AUTHORIZED BY
CONGRESS TO BE SUBJECT TO STATE AND LOCAL TAXATION, WAS TO BE DERIVED
FROM STATE LAW OR TO BE FASHIONED AS AN INDEPENDENT BODY OF FEDERAL
LAW.  THE COURT CONCLUDED THAT "THE CONGRESSIONAL PURPOSE CAN BEST BE
ACCOMPLISHED BY APPLICATION OF SETTLED STATE RULES AS TO WHAT
CONSTITUTES 'REAL PROPERTY'"-- BUT AGAIN THE COURT FORESAW THAT ITS
APPROACH WOULD BE ACCEPTABLE ONLY "SO LONG AS IT IS PLAIN, AS IT IS
HERE, THAT THE STATE RULES DO NOT EFFECT A DISCRIMINATION AGAINST THE
GOVERNMENT, OR PATENTLY RUN COUNTER TO THE TERMS OF THE ACT."  328
U.S., AT 210.  SEE ALSO U. A. W. V. HOOSIER CARDINAL CORP., 383 U.S.
696, 706 (1966). 

UNDER LOUISIANA'S ACT 315, LAND ACQUISITIONS OF THE UNITED STATES,
/14/  EXPLICITLY AUTHORIZED BY THE MIGRATORY BIRD CONSERVATION ACT, ARE
MADE SUBJECT TO A RULE OF RETROACTIVE IMPRESCRIPTIBILITY, A RULE THAT
IS PLAINLY HOSTILE TO THE INTERESTS OF THE UNITED STATES. 

[[HC597'(ORIGINAL DOCUMENT PAGE 597)'  AS APPLIED TO A CONSUMMATED
LAND TRANSACTION UNDER A CONTRACT WHICH SPECIFICALLY DEFINED CONDITIONS
FOR PROLONGING THE VENDOR'S MINERAL RESERVATION, RETROACTIVE
APPLICATION OF ACT 315 TO THE UNITED STATES DEPRIVES IT OF BARGAINED
FOR CONTRACTUAL INTERESTS. 

TO PERMIT STATE ABROGATION OF THE EXPLICIT TERMS OF A FEDERAL LAND
ACQUISITION WOULD DEAL A SERIOUS BLOW TO THE CONGRESSIONAL SCHEME
CONTEMPLATED BY THE MIGRATORY BIRD CONSERVATION ACT AND INDEED ALL
OTHER FEDERAL LAND ACQUISITION PROGRAMS.  THESE PROGRAMS ARE NATIONAL
IN SCOPE.  THEY ANTICIPATE ACUTE AND ACTIVE BARGAINING BY OFFICIALS OF
THE UNITED STATES CHARGED WITH MAKING THE BEST POSSIBLE USE OF LIMITED
FEDERAL CONSERVATION APPROPRIATIONS.  CERTAINTY AND FINALITY ARE
INDISPENSABLE IN ANY LAND TRANSACTION, BUT THEY ARE ESPECIALLY CRITICAL
WHEN, AS HERE, THE FEDERAL OFFICIALS CARRYING OUT THE MANDATE OF
CONGRESS IRREVOCABLY COMMIT SCARCE FUNDS. 

THE LEGISLATIVE HISTORY OF THE MIGRATORY BIRD CONSERVATION ACT
CONFIRMS THE IMPORTANCE OF CONTRACTUAL CERTAINTY TO THE FEDERAL LAND
ACQUISITION PROGRAM IT AUTHORIZES.  AS ORIGINALLY ENACTED IN 1929, THE
ACT PROVIDED THAT LAND ACQUISITIONS MIGHT INCLUDE RESERVATIONS,
EASEMENTS, AND RIGHTS OF WAY BUT THAT THESE WERE TO BE SUBJECT TO "SUCH
RULES AND REGULATIONS" AS THE SECRETARY OF AGRICULTURE MIGHT PRESCRIBE
"FROM TIME TO TIME." 

[[HC598'(ORIGINAL DOCUMENT PAGE 598)'  ^ 6, 45 STAT. 1223.  SWEEPING
STATEMENT OF THE SECRETARY'S POWER TO MODIFY CONTRACT TERMS IN FAVOR OF
THE GOVERNMENT HAD AN UNSETTLING EFFECT ON POTENTIAL VENDORS; IN 1935,
THE ACT WAS AMENDED TO REQUIRE THE SECRETATY EITHER IN INCLUDE HIS
RULES OR REGULATIONS IN THE CONTRACT ITSELF OR TO STATE IN THE CONTRACT
THAT THE RESERVATION OR EASEMENT WOULD BE SUBJECT TO RULES AND
REGULATIONS PROMULGATED "FROM TIME TO TIME."  /15/  A CONGRESS
SOLICITOUS OF THE INTEREST OF PRIVATE VENDORS IN THE CERTAINTY OF
CONTRACT WOULD HARDLY CONDONE STATE MODIFICATION OF THE CONTRACTUAL
TERMS SPECIFIED BY THE UNITED STATES ITSELF AS VENDEE, WHETHER OR NOT
THOSE TERMS MAY BE CHARACTERIZED AS "RULES AND REGULATIONS"  WITHIN THE
MEANING OF THE ACT. 

[[HC599'(ORIGINAL DOCUMENT PAGE 599)' 

CONCEIVABLY, OUR CONCLUSION MIGHT BE INFLUENCED IF LOUISIANA'S ACT
315 OF 1940, AS APPLIED RETROACTIVELY, SERVED LEGITIMATE AND IMPORTANT
STATE INTERESTS THE FULFILLMENT OF WHICH CONGRESS MIGHT HAVE
CONTEMPLATED THROUGH APPLICATION OF STATE LAW.  BUT THAT IS NOT THE
CASE.  WE DO NOT DEPRECATE LOUISIANA'S CONCERN WITH FACILITATING
FEDERAL LAND ACQUISITIONS BY REMOVING UNCERTAINTY ON THE PART OF
RELUCTANT VENDORS OVER THE DURATION OF MINERAL RESERVATIONS RETAINED BY
THEM.  FROM ALL APPEARANCES, THIS CONCERN WAS A SIGNIFICANT FORCE
BEHIND THE ENACTMENT OF THE 1940 LEGISLATION.  /16/  BUT TODAY WE ARE
NOT ASKED TO CONSIDER ACT 315 ON ITS FACE, OR AS APPLIED TO
TRANSACTIONS CONSUMMATED AFTER 1940; WE ARE CONCERNED WITH THE
APPLICATION OF ACT 315 TO A PAIR OF ACQUISITION AGREEMENTS IN 1937 AND
1939.  AND HOWEVER LEGITIMATE THE STATE'S INTEREST IN FACILITATING
FEDERAL LAND ACQUISITIONS, THAT INTEREST HAS NO APPLICATION TO
TRANSACTIONS ALREADY COMPLETED AT THE TIME OF THE ENACTMENT OF ACT 315:
THE LEGISLATURE CANNOT "FACILITATE" TRANSACTIONS ALREADY CONSUMMATED. 
/17/ 

THE LOUISIANA SUPREME COURT HAS CANDIDLY ACKNOWLEDGED TWO ADDITIONAL
PURPOSES WHICH HELP TO EXPLAIN RETROACTIVE APPLICATION OF ACT 315:  TO
CLARIFY THE TAXABILITY BY THE STATE OF MINERAL INTERESTS IN THE LARGE
FEDERAL LAND HOLDINGS IN LOUISIANA, OTHERWISE IN DOUBT BY VIRTUE OF THE
ARCANE AND FLUCTUATING DOCTRINES OF INTERGOVERNMENTAL TAX IMMUNITY; AND
TO ENSURE THAT FEDERAL MINERAL INTERESTS COULD BE SUBJECTED TO STATE
MINERAL CONSERVATION LAWS WITHOUT FEDERAL PRE-EMPTION.  /18/ 

[[HC600'(ORIGINAL DOCUMENT PAGE 600)'  WE ARE NOT UNSYMPATHETIC TO
LOUISIANA'S CONCERN FOR THE CONSEQUENCES OF A CONTINUING, SUBSTANTIAL
EVEN IF CONTINGENT, FEDERAL INTEREST IN LOUISIANA MINERALS.  CONGRESS,
HOWEVER, COULD SCARCELY HAVE VIEWED THAT CONCERN AS A PROPER
JUSTIFICATION FOR RETROACTIVE APPLICATION OF STATE LEGISLATION WHICH
EFFECTIVELY DEPRIVES THE GOVERNMENT OF ITS BARGAINED-FOR CONTRACTUAL
INTERESTS.  OUR FEDERAL UNION IS A COMPLICATED ORGANISM, BUT ITS LEGAL
PROCESSES CANNOT LEGITIMATELY BE SIMPLIFIED THROUGH THE INVITING
EXPEDIENT OF SPECIAL LEGISLATION WHICH HAS THE EFFECT OF CONFISCATING
INTERESTS OF THE UNITED STATES.  /19/ 

[[HC601'(ORIGINAL DOCUMENT PAGE 601)' 

RESPONDENTS POINT OUT THAT "(ONE WHO OWNS LAND SUBJECT TO AN
OUTSTANDING MINERAL RESERVATION POSSESSES NO VESTED PROPERTY INTEREST
(UNDER LOUISIANA LAW), INASMUCH AS 'ESTATES IN REVERSION' ARE UNKNOWN
TO LOUISIANA LAW.  SUCH AN OWNER OF THE LAND POSSESSES ONLY A HOPE OR
EXPECTANCY TO ACQUIRE THESE MINERAL RIGHTS; AND . . . THIS HOPE OR
EXPECTANCY IS NOT AN OBJECT THAT CAN BE LEGALLY SOLD."  BRIEF FOR
RESPONDENTS 27, CITING, E. G., HICKS V. CLARK, 225 LA. 133, 72 SO.2D ,
HERE AS TRANSFERABLE INTERESTS IN REAL PROPERTY, AS SUCH, HAS NO
BEARING ON OUR CONCLUSION THAT AFTER-THE-FACT MODIFICATION OF EXPLICIT
CONTRACTUAL TERMS WOULD BE ADVERSE TO THE UNITED STATES AND CONTRARY TO
THE REQUIREMENTS OF THE MIGRATORY BIRD CONSERVATION ACT. 
[[HC602'(ORIGINAL DOCUMENT PAGE 602)' 

IT IS ALSO OF NO IMPORT THAT, UNDER LOUISIANA LAW AS IT MIGHT BE
ARTICULATED IN 1973, THE UNITED STATES ACQUIRED FROM RESPONDENTS ONLY
THE REVERSION TO A MINERAL INTEREST OF INDEFINITE DURATION, A "HOPE"
OR "EXPECTANCY" REVOCABLE AT ANY TIME BY AFTER-ENACTED LEGISLATION. 
RESPONDENTS PLACE HEAVY RELIANCE ON THE OPINION OF THE LOUISIANA
SUPREME COURT IN LEITER MINERALS, WHERE THAT COURT HELD THAT A MINERAL
RESERVATION FOR AN INDEFINITE DURATION WAS ONE TRADITIONALLY SUBJECT TO
RETROACTIVE PRESCRIPTIVE CHANGE.  BUT EVEN IF THIS RULE OF LAW COULD
HAVE BEEN ANTICIPATED IN 1937 AND 1939, WHEN THE UNITED STATES AGREED
TO THE MINERAL RESERVATIONS IN ISSUE HERE, THAT THE 1937 AND 1939
RESERVATIONS WERE OF "INDEFINITE" DURATION COULD NOT HAVE BEEN. 
INDEED, SOME 20 YEARS LATER, IN 1957, WHEN LEITER MINERALS CAME TO THIS
COURT FOR THE FIRST TIME, WE WERE NOT IN A POSITION TO RESOLVE THE
GOVERNMENT'S CONTENTION THAT THE LEITER RESERVATION WAS ONE OF SPECIFIC
DURATION.  UNCERTAINTY OVER THIS QUESTION OF LOUISIANA LAW WAS THE
GUIDING FORCE BEHIND OUR REMAND IN HOPES OF OBTAINING THE VIEW OF THE
LOUISIANA SUPREME COURT.  IN ITS ADVISORY OPINION, THE LOUISIANA
SUPREME COURT DID NOT DECIDE WHETHER THE LEITER-TYPE RESERVATION WAS
"INDEFINITE" AND SUBJECT TO RETROACTIVE MODIFICATION -- TO THE EXTENT
THAT THE FEDERAL DISTRICT COURT IN LOUISIANA, SUBSEQUENTLY CONCLUDED
THAT THE SERVITUDE IN THE LEITER RESERVATION WAS NOT, UNDER STATE LAW,
FREELY REVOCABLE.  IN LEITER MINERALS, ONE COURT OF APPEALS JUDGE
DISSENTED ON THIS STATE LAW ISSUE, AND, WITH REASON, THE GOVERNMENT
RENEWS THE ISSUE BEFORE THE COURT IN THIS CASE. 

WERE THE TERMS OF THE MINERAL RESERVATIONS AT ISSUE HERE LESS
DETAILED AND SPECIFIC, IT MIGHT BE SAID THAT THE GOVERNMENT
ACKNOWLEDGED AND INTENDED TO BE BOUND BY UNFORESEEABLE CHANGES IN STATE
LAW. 

[[HC603'(ORIGINAL DOCUMENT PAGE 603)'  BUT THE MINERAL RESERVATIONS
BEFORE US ARE FLATLY INCONSISTENT WITH THE RESPONDENTS' SUGGESTION THAT
THE UNITED STATES IN FACT EXPECTED THAT THESE RESERVATIONS WOULD BE
WHOLLY SUBJECT TO RETROACTIVE MODIFICATION.  NOR, GIVEN THE ABSENCE OF
ANY RELIABLE CONTEMPORANEOUS LOUISIANA SIGNPOST AND THE ABSENCE EVEN
TODAY OF ANY FINAL RESOLUTION OF THE PERTINENT STATE LAW QUESTION, CAN
WE SAY THAT THE UNITED STATES OUGHT TO HAVE ANTICIPATED THAT ITS DEED
CONTAINED AN EMPTY PROMISE.  RESPONDENTS' RELIANCE ON THE LOUISIANA
SUPREME COURT'S HOLDING IN ITS OPINION IN 1961 IN LEITER MINERALS
ASSUMES THAT A LATE-CRYSTALLIZING DOCTRINE OF STATE LAW IS
APPROPRIATELY APPLIED TO MODIFY THE EXPECTATIONS OF THE UNITED STATES
ESTABLISHED BY THE TERMS OF 1937 AND 1939 BARGAINS.  THE ARGUMENT,
HOWEVER, IS INDISTINGUISHABLE FROM RESPONDENTS' DEFENSE OF ACT 315
ITSELF.  YEARS AFTER THE FACT, STATE LAW MAY NOT REDEFINE FEDERAL
CONTRACT TERMINOLOGY "IN A WAY ENTIRELY STRANGE TO THOSE FAMILIAR WITH
ITS ORDINARY USUAGE . . ."  DE SYLVA V. BALLENTINE, 351 U.S., AT 581. 

        IV 

IN SPEAKING OF THE CHOICE OF LAW TO BE APPLIED, THE ALTERNATIVES ARE
PLAIN ALTHOUGH IN THIS CASE IDENTIFYING THEM IN FIXED CATEGORIES IS
SOMEWHAT ELUSIVE.  ONE "CHOICE" WOULD BE TO APPLY THE LAW URGED ON US
BY RESPONDENTS, I. E., LOUISIANA ACT 315 OF 1940.  IN SOME
CIRCUMSTANCES, SUCH AS THOSE SUGGESTED BY RFC V. BEAVER COUNTY, 328
U.S. 204 (1946), OR WALLIS V. PAN AMERICAN PETROLEUM CORP., 384 U.S. 63
(1966), /20/  STATE LAW MAY BE FOUND AN ACCEPTABLE CHOICE, POSSIBLY
EVEN WHEN THE UNITED STATES ITSELF IS A CONTRACTING PART. 

[[HC604'(ORIGINAL DOCUMENT PAGE 604)'  HOWEVER, IN A SETTING IN
WHICH THE RIGHTS OF THE UNITED STATES ARE AT ISSUE IN A CONTRACT TO
WHICH IT IS A PARTY AND "THE ISSUE'S OUTCOME BEARS SOME RELATIONSHIP TO
A FEDERAL PROGRAM, NO RULE MAY BE APPLIED WHICH WOULD NOT BE WHOLLY IN
ACCORD WITH THAT PROGRAM."  MISHKIN, 105 U. PA. L. REV., AT 805 - 806. 

SINCE ACT 315 IS PLAINLY NOT IN ACCORD WITH THE FEDERAL PROGRAM
IMPLEMENTED BY THE 1937 AND 1939 LAND ACQUISITIONS, STATE LAW IS NOT A
PERMISSIBLE CHOICE HERE.  THE CHOICE OF LAW MERGES WITH THE
CONSTITUTIONAL DEMANDS OF CONTROLLING FEDERAL LEGISLATION; WE TURN AWAY
FROM STATE LAW BY DEFAULT.  ONCE IT IS CLEAR THAT ACT 315 HAS NO
APPLICATION HERE, WE NEED NOT CHOOSE BETWEEN "BORROWING" SOME RESIDUAL
STATE RULE OF INTERPRETATION OR FORMULATING AN INDEPENDENT FEDERAL
"COMMON LAW" RULE; NEITHER RULE IS THE LAW OF LOUISIANA YET EITHER RULE
RESOLVES THIS DISPUTE IN THE GOVERNMENT'S FAVOR.  THE CONTRACT ITSELF
IS UNEQUIVOCAL; THE DISTRICT COURT CONCLUDED, AND IT IS NOT DISPUTED
HERE, THAT BY THE CLEAR AND EXPLICIT TERMS OF THE CONTRACT
RESERVATIONS, "(RESPONDENTS') INTERESTS IN THE OIL, GAS, SULPHUR AND
OTHER MINERALS TERMINATED . . . NO LATER THAN JULY 23, 1947, AND AUGUST
30, 1949, UNLESS ACT 315 OF 1940 HAS CAUSED THE RESERVATIONS OF THE
SERVITUDES IN FAVOR OF (RESPONDENTS) TO BE IMPRESCRIPTIBLE." 

WE HOLD THAT, UNDER SETTLED PRINCIPLES GOVERNING THE CHOICE OF LAW
BY FEDERAL COURTS, LOUISIANA'S ACT 315 OF 1940 HAS NO APPLICATION TO
THE MINERAL RESERVATIONS AGREED TO BY THE UNITED STATES AND RESPONDENTS
IN 1937 AND 1939, AND THAT, AS A RESULT, ANY CONTRACT INTERESTS OF
RESPONDENTS EXPIRED ON THE DATES IDENTIFIED BY THE DISTRICT COURT. 
ACCORDINGLY, WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE FOR ENTRY OF AN ORDER CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  THE UNITED STATES BROUGHT TWO SEPARATE SUITS FOR THIS PURPOSE
UNDER 28 U.S.C. ^ 1345, WHICH WERE CONSOLIDATED BY CONSENT PURSUANT TO
FED. RULE CIV. PROC. 42 (A). 

/2/  IN FROST-JOHNSON LUMBER CO. V. SALLING'S HEIRS, 150 LA. 756, 91
SO. 207 (1922), THE LOUISIANA SUPREME COURT DECLINED TO RECOGNIZE A
PERPETUAL "MINERAL ESTATE" IN LOUISIANA LANDS, TRANSFERABLE
INDEPENDENTLY OF THE OVERLYING SURFACE PROPERTY.  INSTEAD, THE
LOUISIANA SUPREME COURT DECLARED THAT "OIL AND GAS IN PLACE ARE NOT
SUBJECT TO ABSOLUTE OWNERSHIP AS SPECIFIC THINGS APART FROM THE SOIL OF
WHICH THEY FORM PART," ID., AT 858, 91 SO., AT 243, AND THAT SALE OR
RESERVATION OF MINERAL RIGHTS AFFORDS NO MORE THAN A RIGHT TO GO ON THE
LAND TO SEARCH FOR AND REDUCE TO POSSESSION ALL MINERALS FOUND.  2 A.
YIANNOPOULOS, LOUISIANA CIVIL LAW TREATISE, PROPERTY ^ 99 (1967); H.
DAGGETT, MINERAL RIGHTS IN LOUISIANA ^ 1 (REV. ED. 1949).  SEE
GENERALLY HARDY, THE BIRTH OF LOUISIANA MINERAL LAW, 16 LOYOLA L. REV.
299 (1970).  SINCE FROST-JOHNSON, "(SALE AND RESERVATION OF MINERAL
RIGHTS HAVE BEEN ALMOST CONSISTENTLY CLASSIFIED AS SERVITUDES." 
YIANNOPOULOS, SUPRA, ^ 62, AT 183; DAGGETT, SUPRA, ^ 2. 

"PRESCRIPTION" OR EXPIRATION OF THE REMEDY TO PROTECT A MINERAL
SERVITUDE WILL OCCUR AT THE END OF 10 YEARS FROM THE DATE OF CREATION,
IF THE SERVITUDE IS NOT MAINTAINED DURING THAT TIME IN ACCORDANCE WITH
COMPLEX REQUIREMENTS FOR USE OR ACKNOWLEDGMENT.  THE PARTIES MAY NOT
EXTEND THE 10 YEAR PERIOD OF PRESCRIPTION BY ADVANCE AGREEMENT, SEE
ART. 3460, LA. CIV. CODE ANN.; HIGHTOWER V. MARITZKY, 194 LA. 998, 1006
- 1007, 195 SO. 518, 520 - 521 (1940).  HOWEVER, THE PARTIES ARE NOT
BARRED FROM AGREEING TO A PERIOD OF CONTRACTUAL PRESCRIPTION SHORTER
THAN 10 YEARS.  NABORS, THE LOUISIANA MINERAL SERVITUDE AND ROYALTY
DOCTRINES:  A REPORT TO THE MINERAL LAW COMMITTEE OF THE LOUISIANA
STATE LAW INSTITUTE, 25 TUL.  L. REV. 155, 176 - 177 (1951). 

/3/  LOUISIANA LAW DISTINGUISHES BETWEEN PRESCRIPTION AND
"PREEMPTION."  THE LOUISIANA SUPREME COURT HAS EXPLAINED THE
DISTINCTION IN THE FOLLOWING TERMS:  "'WHEN A STATUTE CREATES A RIGHT
OF ACTION, AND STIPULATES THE DELAY WITHIN WHICH THAT RIGHT IS TO BE
EXECUTED, THE DELAY THUS FIXED IS NOT, PROPERLY SPEAKING, ONE OF
PRESCRIPTION, BUT IT IS ONE OF PEREMPTION.  STATUTES OF PRESCRIPTION
SIMPLY BAR THE REMEDY.  STATUTES OF PEREMPTION DESTROY THE CAUSE OF
ACTION ITSELF.  THAT IS TO SAY, AFTER THE LIMIT OF TIME EXPIRES THE
CAUSE OF ACTION NO LONGER EXISTS; IT IS LOST.'"  BRISTER V. WRAY
DICKINSON CO., INC., 183 LA. 562, 565, 164 SO. 415, 416 (1935), CITED
IN UNITED STATES V. NEBO OIL COL, 90 F. SUPP. 73, 80 (WD LA. 1950). 
BECAUSE STATUTES OF PRESCRIPTION ARE CONSIDERED "REMEDIAL" THE
LOUISIANA COURTS HAVE GENERALLY HELD THAT SUCH STATUTES ARE APPLICABLE
TO CAUSES OF ACTION WHICH AROSE BEFORE THE STATUTE WAS ENACTED.  STATES
V. NEBO OIL COL, SUPRA, AT 81 - 82, AND CASES CITED. 

/4/  THE COURT OF APPEALS ALSO EMPHASIZED THAT OFFICIALS OF THE
DEPARTMENT OF AGRICULTURE HAD REPRESENTED TO THE GOVERNMENT'S VENDOR
THAT "THE PRESCRIPTIVE PROVISIONS OF THE LOUISIANA CIVIL CODE WOULD NOT
APPLY TO LANDS SOLD TO THE UNITED STATES FOR NATIONAL FOREST
PURPOSES."  190 F.2D 1003, 1005.  THE COURT OF APPEALS NOTED THAT THE
PRICE PAID BY THE GOVERNMENT DID NOT REFLECT THE VALUE OF ANY MINERAL
RIGHTS AND THAT THE VENDOR WOULD NOT HAVE AGREED TO THE LAND SALE
ABSENT THE GOVERNMENT'S REPRESENTATION THAT LOUISIANA PRESCRIPTIVE LAW
WOULD NOT APPLY.  ID., AT 1006. 

/5/  THE INITIAL DURATION OF THE RESERVATION WAS 10 YEARS.  IF
MINERAL OPERATIONS TOOK PLACE FOR "AN AVERAGE OF AT LEAST 50 DAYS PER
YEAR" DURING THE FINAL THREE YEARS OF THE SPECIFIED TERM, THE SERVITUDE
WOULD BE EXTENDED FOR AN ADDITIONAL FIVE-YEAR PERIOD, BUT ONLY WITH
RESPECT TO "AN AREA OF TWENTY-FIVE ACRES OF LAND"  AROUND EACH WELL OR
MINE PRODUCING OR BEING DRILLED AT THE "TIME OF FIRST EXTENSION." 
ADDITIONAL FIVE-YEAR EXTENSIONS COULD BE OBTAINED "FROM TIME TO TIME"
TO PERMIT COMPLETION OF ACTIVE DRILLING OPERATIONS. 

/6/  LEITER MINERALS, INC. V. UNITED STATES, 224 F.2D 381 (CA5
1955), AFF'G 127 F. SUPP. 439 (ED LA. 1954). 

/7/  THE 1957 REMAND WAS IN EFFECT A REMAND WITH INSTRUCTIONS TO
ABSTAIN.  IT CONTEMPLATED STATE COURT ELUCIDATION OF VARIOUS
UNCERTAINTIES SURROUNDING ACT 315, BEFORE THIS COURT WOULD ATTEMPT "TO
DECIDE THEIR RELATION TO THE ISSUES IN THE CASE."  WE DO NOT THEREFORE,
UNDERSTAND THE RESPONDENT'S SUGGESTION, ECHOED BY MR. JUSTICE STEWART,
THAT THE 1957 REMAND FORESHADOWED FINAL RESOLUTION OF THE LEITER
MINERALS CONTROVERSY THROUGH STATE LAW. 

INDEED, THE COURT'S OPINION STATED THAT "(IT NEED HARDLY BE ADDED
THAT THE STATE COURTS . . . CAN DECIDE DEFINITIVELY ONLY QUESTIONS OF
STATE LAW THAT ARE NOT SUBJECT TO OVERRIDING FEDERAL LAW."  352 U.S.
220, 229 - 230. 

/8/  IN LEITER MINERALS, THE COURT OF APPEALS STATED THAT, ALTHOUGH
"CONGRESS COULD MAKE FEDERAL LAW APPLICABLE, . . . IT HAD NO INTENTION
TO DO SO WHEN IT MERELY AUTHORIZED THE CONTRACT BY WHICH THE UNITED
STATES ACQUIRED THE (LEITER) PROPERTY."  THE COURT OF APPEALS EXPRESSED
THE VIEW THAT "(STATE LAW MUST GOVERN IN THE ABSENCE OF A FEDERAL
STATUTE," AND IN SUPPORT OF ITS VIEW IT CITED SWIFT V. TYSON, 16 PET.
1, 18 (1842).  LATER IN ITS OPINION, THE COURT OF APPEALS STATED THAT
"SINCE THE UNITED STATES HAD THE RIGHT TO INVOKE FEDERAL JURISDICTION
(28 U.S.C. ^ 1345), THE ULTIMATE RESPONSIBILITY FOR THE INTERPRETATION
OF THE RESERVATION RESTS UPON THE FEDERAL COURTS.  THAT INTERPRETATION,
HOWEVER, MUST BE IN ACCORDANCE WITH STATE LAW . . ."  329 F. 2D 85, 90,
91.  FROM THESE STATEMENTS, IT APPEARS THAT THE COURT OF APPEALS
CONSIDERED THAT THE INTERPRETATION OF THE LEITER AGREEMENT WAS GOVERNED
BY STATE LAW (APPLIED OF ITS OWN FORCE), WITH THE ROLE OF THE FEDERAL
COURTS CONFINED TO INTERPRETATION OF STATE LAW "IN ACCORDANCE WITH
STATE LAW"  AS LAID DOWN BY THE HIGHEST COURTS OF THE STATE.  POSSIBLY,
THOUGH, THE COURT OF APPEALS THOUGHT THAT THE CHOICE OF APPLICABLE LAW
WAS ITSELF A QUESTION OF FEDERAL LAW ("ULTIMATE RESPONSIBILITY . . .
RESTS UPON THE FEDERAL COURTS . . .") BUT THAT IN THE GENERAL CONTEXT
OF THIS CASE, INVOLVING REAL PROPERTY, STATE LAW SHOULD BE APPLIED
THROUGH "BORROWING." 

/9/  "THE LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE CONSTITUTION
OR TREATIES OF THE UNITED STATES OR ACTS OF CONGRESS OTHERWISE REQUIRE
OR PROVIDE, SHALL BE REGARDED AS RULES OF DECISION IN CIVIL ACTIONS IN
THE COURTS OF THE UNITED STATES, IN CASES WHERE THEY APPLY." 

/10/  THIS IS NOT A CASE WHERE THE UNITED STATES SEEKS TO OUST STATE
SUBSTANTIVE LAW ON THE BASIS OF "AN AMORPHOUS DOCTRINE OF NATIONAL
SOVEREIGNTY" DIVORCED FROM ANY SPECIFIC CONSTITUTIONAL OR STATUTORY
PROVISION AND PREMISED SOLELY ON THE ARGUMENT "THAT EVERY AUTHORIZED
ACTIVITY OF THE UNITED STATES REPRESENTS AN EXERCISE OF ITS
GOVERNMENTAL POWER,"  SEE UNITED STATES V. BURNISON, 339 U.S. 87, 91
AND 92 (1950); UNITED STATES V. FOX, 94 U.S. 315 (1877).  BURNISON AND
FOX STAND AT THE OPPOSITE END OF THE SPECTRUM FROM CASES WHERE CONGRESS
EXPLICITLY DISPLACES STATE LAW IN THE COURSE OF EXERCISING CLEAR
CONSTITUTIONAL REGULATORY POWER OVER A PARTICULAR SUBJECT MATTER.  SEE,
E. G., SUNDERLAND V. UNITED STATES, 266 U.S. 226 - 233 (1924) (UNITED
STATES MAY DISPLACE OKLAHOMA LAW BY IMPOSING RESTRICTIONS ON ALIENATION
OF INDIAN PROPERTY DESPITE THE "GENERAL RULE . . . THAT THE TENURE,
TRANSFER, CONTROL AND DISPOSITION OF REAL PROPERTY ARE MATTERS WHICH
REST EXCLUSIVELY WITH THE STATE WHERE THE PROPERTY LIES").  THE PRESENT
CASE FALLS BETWEEN THE POLES OF BURNISON AND SUNDERLAND.  HERE WE DEAL
WITH AN UNQUESTIONABLY APPROPRIATE AND SPECIFIC EXERCISE OF
CONGRESSIONAL REGULATORY POWER WHICH FAILS TO SPECIFY WHETHER OR TO
WHAT EXTENT IT CONTEMPLATES DISPLACEMENT OF STATE LAW. 

/11/  UNITED STATES V. CERTAIN PROPERTY, 306 F.2D 439 (CA 2 1962),
THE PRINCIPAL DECISION RELIED ON BY THE COURT OF APPEALS IN LEITER
MINERALS, SUPRA, DOES NOT SUGGEST APPLICATION OF STATE LAW, OF ITS OWN
FORCE, TO FEDERAL LAND ACQUISITIONS.  SEE THE DISCUSSION BY THE AUTHOR
OF CERTAIN PROPERTY IN FRIENDLY, 39 N. Y. U. L. REV., AT 411 N. 133. 
/12/  "IN OUR CHOICE OF THE APPLICABLE FEDERAL RULE WE HAVE
OCCASIONALLY SELECTED STATE LAW."  318 U.S., AT 367. 

/13/  IN VIEW OF OUR DISPOSITION, WE DECLINE TO RESOLVE THE
CONTINUING UNCERTAINTY, UNDER LOUISIANA LAW, OVER THE APPLICABILITY OF
ACT 315 TO THE MINERAL RESERVATION IN ISSUE HERE.  SEE INFRA, AT 601 -
602. 

/14/  IN 1938, THE LOUISIANA LEGISLATURE PASSED ACT 68 AND, LATER,
ACT 151.  BOTH STATUTES BARRED PRESCRIPTION OF MINERAL RESERVATIONS IN
CERTAIN LANDS CONVEYED TO THE UNITED STATES.  ACT 68 APPLIED TO LAND
ACQUIRED BY THE UNITED STATES OR BY THE STATE OF LOUISIANA "FOR USE IN
THE CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY SPILLWAY OR FLOODWAY"
AUTHORIZED BY FEDERAL LAW.  ACT 151, BROAD ENOUGH IN TERMS TO SUPERSEDE
ACT 68, PROVIDED THAT PRESCRIPTION WOULD NOT RUN AGAINST MINERAL OR
ROYALTY RESERVATIONS OR REAL ESTATE "ACQUIRED BY THE UNITED STATES OF
AMERICA, THE STATE OF LOUISIANA, OR ANY OF ITS SUBDIVISIONS . . . FOR
USE IN ANY PUBLIC WORK AND/OR IMPROVEMENT."  SEE GENERALLY COMMENT,
IMPRESCRIPTIBLE MINERAL RESERVATIONS IN SALES OF LAND TO THE STATE AND
FEDERAL GOVERNMENTS, 22 TUL.  L. REV. 496 (1948). 

WHETHER BECAUSE THE "FLOODWAY" AND "PUBLIC WORK" QUALIFICATIONS OF
THE 1938 ACTS MAKE THEM INAPPLICABLE TO THE 1939 CONDEMNATION
RESERVATION IN ISSUE HERE, OR BECAUSE THE PARTIES' OWN AGREEMENT IN
1939 REFLECTS THEIR BELIEF THAT ACT 151 WAS INAPPLICABLE, RESPONDENTS
DO NOT ARGUE THAT THE 1938 LEGISLATION IS MATERIAL TO THE OUTCOME OF
THE CASE. 

/15/  SEE S. REP. NO. 822, 74TH CONG., 1ST SESS., REPORT OF THE
SPECIAL COMMITTEE ON CONSERVATION OF WILDLIFE RESOURCES ON S. 3006, PP.
2 - 3 (1935)" 

"THE MIGRATORY BIRD CONSERVATION ACT OF 1929 ESTABLISHED THE FEDERAL
POLICY FOR THE ACQUISITION OF AREAS FOR MIGRATORY WATERFOWL REFUGES. 
UNDER THE PROVISIONS OF THAT ACT, THE SECRETARY OF AGRICULTURE WAS
AUTHORIZED WHEN PURCHASING PROPERTY FOR WATERFOWL REFUGES, TO MAKE
CERTAIN RESERVATIONS TO BE RETAINED BY THE VENDORS OF THE PROPERTY, BUT
THESE RESERVATIONS WERE SUBJECTED TO REGULATIONS OF THE SCRETARY OF
AGRICULTURE WHICH MIGHT BE MADE 'FROM TIME TO TIME.'  THE
ADMINISTRATION OF THIS ACT HAS DEVELOPED SOME HARASSMENTS IN THE
ACQUISITION OF DESIRABLE WATERFOWL AREAS BECAUSE SOME OWNERS ARE NOT
WILLING TO CONVEY THEIR LANDS TO THE FEDERAL GOVERNMENT ON THE
INDEFINITE AND UNCERTAIN TERMS AS PROVIDED IN REGULATIONS MADE 'FROM
TIME TO TIME.' 

"OBVIOUSLY THEY MAY WELL BE JUSTIFIED IN THEIR VIEW, AND, JUST AS
OBVIOUSLY, THE GOVERNMENT MAY REASONABLY BE SECURED IN ITS INTERESTS BY
PROVIDING FOR ENJOYMENT ON THE RESERVATIONS UNDER REGULATIONS TO BE
STATED IN THE CONVEYANCE AT THE TIME OF ITS EXECUTION, LEAVING THE
VENDOR WHO HAS MADE THE RESERVATION TO THE GENERAL REQUIREMENT OF
EXISTING LAW THAT HE WILL BE SUBJECT TO THE RULES AND REGULATIONS OF
THE SECRETARY OF AGRICULTURE GOVERNING THE GENERAL ADMINISTRATION OF
THE AREA AS A MIGRATORY BIRD REFUGE. 

"ACCORDINGLY IT IS PROPOSED TO AMEND SECTION 6 OF THE ACT OF 1929 SO
THAT THESE RESERVATIONS, IN THE DISCRETION OF THE SECRETARY OF
AGRICULTURE, MAY BE SUBJECTED TO REGULATIONS TO BE STATED IN THE
INSTRUMENT OF CONVEYANCE." 

/16/  SEE THE DISCUSSION IN LEITER MINERALS, INC. V. CALIFORNIA CO.,
241 LA. 915, 932, 132 SO. 2D 845, 851 (1961). 

/17/  BECAUSE WE ARE CONCERNED HERE WITH RETROACTIVE APPLICATION OF
ACT 315, THERE IS LIKEWISE NO BASIS FOR THE COURT OF APPEALS'
SUGGESTION THAT ACT 315 SIMPLY PLACES LOUISIANA CITIZENS ON THE SAME
FOOTING AS OTHER STATES' CITIZENS WHOSE LAND IS PURCHASED OR CONDEMNED
BY THE UNITED STATES. 

/18/  "THERE CAN BE NO DOUBT . . . THAT THERE WERE OTHER OBJECTS AND
PURPOSES FOR THE ENACTMENT OF ACT 315 OF 1940 . . . 

"ONE OF THE IMPORTANT SOURCES OF REVENUE OF THE STATE OF LOUISIANA
IS THE SEVERANCE TAX WHICH IS LEVIED AND COLLECTED BY THE STATE WHEN
NATURAL RESOURCES SUCH AS OIL AND GAS ARE PRODUCED AND EXTRACTED FROM
THE LAND.  IF THE MINERAL RIGHTS WERE OWNED BY THE FEDERAL GOVERNMENT
IN LANDS WHICH THE GOVERNMENT HAD PURCHASE, THE MINERAL OWNER'S SHARE
OF THE OIL AND GAS PRODUCED FROM THESE LANDS WOULD NOT BE SUBJECT TO
TAXATION BY THE STATE OF LOUISIANA, AND THE STATE WOULD BE DEPRIVED OF
LARGE SUMS IN TAXES, ESPECIALLY SINCE AN IMMENSE AREA IS OWNED BY THE
FEDERAL GOVERNMENT IN OIL-PRODUCING SECTIONS OF THIS STATE, AS THE VERY
FACTS OF THIS CASE DISCLOSE. 

"MOREOVER, THE STATE OF LOUISIANA IN THE EXERCISE OF ITS POLICE
POWER HAS AUTHORITY TO PROTECT, CONSERVE, AND REPLENISH THE NATURAL
RESOURCES OF THE STATE AND TO PROHIBIT AND PREVENT THEIR WASTE . . .
UNDER THIS POWER THE LEGISLATURE HAS ADOPTED LAWS REGULATING AND
CONTROLLING THE PRODUCTION OF OIL AND GAS WITHIN THE STATE.  BY MAKING
MINERAL RIGHTS IMPRESCRIPTIBLE IN LANDS SOLD TO THE GOVERNMENT AND
RETAINING THESE RIGHTS IN THE VENDORS, ACT 315 OF 1940 AVOIDED A
POSSIBLE CONFLICT BY THE STATE IN THE EXERCISE OF ITS POLICE POWER WITH
THE FEDERAL GOVERNMENT."  241 LA., AT 933 - 934, 132 SO. 2D, AT 851 -
852. 

/19/  IN 1957, 18 YEARS AFTER THE PASSAGE OF ACT 315, LOUISIANA
ENACTED LEGISLATION THAT SUBJECTS THE STATE AND CERTAIN OF ITS
SUBDIVISIONS TO THE RULE OF IMPRESCRIPTIBILITY.  LOUISIANA ACT 278 OF
1958, LA. REV. STAT. ^ 9:5806 B (SUPP. 1973).  BUT THIS BELATED EFFORT
AT STATUTORY PARITY DOES NOT ELIMINATE THE ADVERSE EFFECT UPON THE
UNITED STATES, AND UPON THE MIGRATORY BIRD CONSERVATION ACT, OF
RETROACTIVE APPLICATION OF ACT 315 OF 1940.  FOR ONE THING, IT IS NOT
CLEAR WHETHER THE 1958 LEGISLATION WILL BE GIVEN FULL RETROSPECTIVE
EFFECT BY THE LOUISIANA COURTS, REACHING BACK TO 1937 AND EARLIER. 
MORE BASIC, EVEN ASSUMING RETROSPECTIVE APPLICATION OF THE 1958
STATUTE, THE EFFECT OF THE 1958 STATUTE ON LOUISIANA IS NOT COMPARABLE
TO THE EFFECT OF THE 1940 ACT ON THE UNITED STATES.  WITH OR WITHOUT
LEGISLATION RELATING TO PRESCRIPTION OF MINERAL INTERESTS TIED TO
GOVERNMENTAL LAND ACQUISITIONS, LOUISIANA COULD PLAINLY APPLY ITS OWN
CONSERVATION LAWS AND ITS OWN SEVERANCE TAX TO ANY PROPERTY IN WHICH
THE STATE HELD A CONTINGENT OR EVEN A PRESENT MINERAL INTEREST.  THE
1958 LEGISLATION DID NOTHING TO REDUCE LOUISIANA'S FREEDOM IN THIS
RESPECT.  ACT 315 OF 1940, HOWEVER, AS APPLIED RETROACTIVELY, HAD THE
AVOWED PURPOSE AND WOULD HAVE THE CLEAR EFFECT OF PERMITTING TAXATION
AND CONSERVATION REGULATION OF MINERALS WHICH, QUITE POSSIBLY, WOULD
OTHERWISE FALL WITHIN THE FEDERAL GOVERNMENT'S EXCLUSIVE DOMAIN. 
HOWEVER PARALLEL THE TWO STATUES IN PURPOSE AND IN THEIR POTENTIAL
EFFECT ON ACTUAL MINERAL RIGHT OWNERSHIP BY THE RESPECTIVE SOVEREIGNS,
IT IS ONLY ACT 315 OF 1940 THAT SIGNIFICANTLY AFFECTS INTERESTS OF THE
UNITED STATES IN INTERGOVERNMENTAL IMMUNITY. 

/20/  WALLIS IS READILY DISTINGUISHABLE FROM THE INSTANT CASE; THERE
THE ASSIGNABILITY OF AN OIL AND GAS LEASE WAS IN CONTROVERSY BETWEEN
TWO PRIVATE PARTIES.  THAT PRESENTED "NO SIGNIFICANT THREAT TO ANY
IDENTIFIABLE FEDERAL POLICY OR INTEREST."  384 U.S. 63, 68. 

[[DOP 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT. 

I CANNOT AGREE WITH THE COURT THAT THE MINERAL RESERVATIONS AGREED
TO BY THE UNITED STATES AND THE RESPONDENTS IN 1937 AND 1939 ARE
GOVERNED BY SOME BROODING OMNIPRESENCE LABELED FEDERAL COMMON LAW.  IT
SEEMS CLEAR TO ME, AS A MATTER OF LAW, NOT A MATTER OF "CHOICE" OR
"BORROWING,"  THAT WHEN ANYONE, INCLUDING THE FEDERAL GOVERNMENT, GOES
INTO A STATE AND ACQUIRES REAL PROPERTY, THE NATURE AND EXTENT OF THE
RIGHTS CREATED ARE TO BE DETERMINED, IN THE ABSENCE OF A SPECIFICALLY
APPLICABLE FEDERAL STATUTE, BY THE LAW OF THE STATE. 

THAT WAS THE VERY PREMISE OF THE DECISION IN LEITER MINERALS, INC.
V. UNITED STATES, 352 U.S. 220, 228 - 230 (1957), WHICH REMANDED THE
CASE OF THE COURT OF APPEALS WITH INSTRUCTIONS TO SECURE AN
AUTHORITATIVE CONSTRUCTION OF THE STATE STATUTE BY THE STATE COURTS, IN
ORDER POSSIBLY TO AVOID DECIDING THE FEDERAL CONSTITUTIONAL ISSUES. 
OTHER DECISIONS OF THIS COURT LEAD TO THE SAME CONCLUSION.  UNITED
STATES V. YAZELL, 382 U.S. 341, 352 - 358 (1966); UNITED STATES V.
BURNISON, 339 U.S. 87, 89 (1950); DAVIES WAREHOUSE CO. V. BOWLES, 321
U.S. 144, 155 (1944); SUNDERLAND V. UNITED STATES, 266 U.S. 226, 232 -
233 (1924); MASON V. UNITED STATES, 260 U.S. 545, 557 - 558 (1923);
UNITED STATES V. FOX, 94 U.S. 315, 320 (1877).  CL. WALLIS V. PAN
AMERICAN PETROLEUM CORP., 384 U.S. 63 (1966). 

SINCE I THINK THE GOVERNMENT'S PROPERTY ACQUISITIONS HERE ARE
CONTROLLED BY STATE LAW, THE DECISIVE QUESTION FOR ME IS WHETHER THE
RETROACTIVE APPLICATION OF LOUISIANA ACT 315 OF 1940 TO THOSE
ACQUISITIONS IS CONSTITUTIONAL.  /1/  THE 1937 DEED OF PURCHASE AND THE
1939 CONDEMNATION JUDGMENT WERE UNEQUIVOCAL:  THE MINERAL RIGHTS WERE
RESERVED TO THE FORMER OWNERS OF THE LAND FOR A 10-YEAR PERIOD, AFTER
WHICH TIME -- IF CERTAIN CONDITIONS REGARDING EXPLORATION AND
PRODUCTION WERE NOT MET -- THE RESERVED RIGHTS WERE TO TERMINATE, AND
COMPLETE FEE TITLE TO THE LAND, INCLUDING THE MINERAL RIGHTS, WAS TO
BECOME VESTED IN THE UNITED STATES.  THE FEDERAL GOVERNMENT BARGAINED
FOR THIS CONTINGENT FUTURE INTEREST IN THE MINERALS; IT WAS CLEARLY
AGREED TO IN THE CONVEYANCES, AND WAS THUS REFLECTED IN THE
CONSIDERATION PAID BY THE GOVERNMENT TO THE FORMER OWNERS. 

YET THE COURT OF APPEALS HELD THAT LOUISIANA ACT 315, WHICH WAS
ENACTED SUBSEQUENT TO THOSE CONVEYANCES, OPERATED TO ABROGATE THE
AGREED-UPON TERMS OF THE MINERAL RESERVATIONS BY ELIMINATING THE
GOVERNMENT'S FUTURE INTEREST.  THIS RETROACTIVE APPLICATION OF ACT 315,
I BELIEVE, IS A TEXTBOOK EXAMPLE OF A VIOLATION OF ART. I, ^ 10, CL. 1,
OF THE CONSTITUTION, WHICH PROVIDES THAT NO STATE SHALL PASS ANY LAW
"IMPAIRING THE OBLIGATION OF CONTRACTS."  /2/ 

ACCORDINGLY, I CONCUR IN THE JUDGMENT OF THE COURT. 

[[DFN 

/1/  THUS, I DO NOT SUGGEST, AS THE COURT SEEMS TO THINK I DO (ANTE,
AT 588 N. 7), THAT THIS CONTROVERSY CAN NECESSARILY BE FINALLY RESOLVED
THROUGH STATE LAW.  RATHER, MY ANALYSIS IS WHOLLY CONSISTENT WITH THE
STATEMENT IN LEITER MINERALS, INC. V. UNITED STATES, 352 U.S. 220, 229
230 (1957), QUOTED BY THE COURT TODAY (ANTE, AT 588 N. 7), THAT STATE
COURTS "CAN DECIDE DEFINITIVELY ONLY QUESTIONS OF STATE LAW THAT ARE
NOT SUBJECT TO OVERRIDING FEDERAL LAW." 

/2/  THIS CASE IS A FAR CRY FROM HOME BUILDING & LOAN ASSN. V.
BLAISDELL, 290 U.S. 398 (1934), WHICH UPHELD, IN THE FACE OF A
CHALLENGE BASED ON THE EXTRAORDINARY ECONOMIC DEPRESSION EXISTING IN
1934.  THE RETROACTIVE APPLICATION OF LOUISIANA ACT 315 SERVES NO SUCH
PARAMOUNT STATE INTEREST.  CF. CITY OF EL PASO V. SIMMONS, 379 U.S. 497
(1965). 

[[DOP 

MR. JUSTICE REHNQUIST, CONCURRING IN THE JUDGMENT. 

I AGREE WITH MY BROTHER STEWART THAT THE CENTRAL QUESTION PRESENTED
BY THIS CASE IS WHETHER LOUISIANA HAS THE CONSTITUTIONAL POWER TO MAKE
ACT 315 APPLICABLE TO THIS TRANSACTION, AND NOT WHETHER A JUDICIALLY
CREATED RULE OF DECISION, LABELED FEDERAL COMMON LAW, SHOULD DISPLACE
STATE LAW.  THE MIGRATORY BIRD CONSERVATION ACT DOES NOT ESTABLISH A
FEDERAL RULE CONTROLLING THE RIGHTS OF THE UNITED STATES UNDER THE
RESERVATION.  WHETHER CONGRESS COULD ENACT SUCH A PROVISION IS A
QUESTION NOT NOW BEFORE US.  IN CLEARFIELD TRUST CO. V. UNITED STATES,
318 U.S. 363, 366 (1943), THIS COURT HELD THAT FEDERAL COMMON LAW
GOVERNED THE RIGHTS AND DUTIES OF THE UNITED STATES "ON COMMERCIAL
PAPER WHICH IT ISSUES . . ."  THE INTEREST IN HAVING THOSE RIGHTS
GOVERNED BY A RULE WHICH IS UNIFORM ACROSS THE NATION WAS THE BASIS OF
THAT DECISION.  BUT THE INTEREST OF THE FEDERAL GOVERNMENT IN HAVING
REAL PROPERTY ACQUISITIONS THAT IT MAKES IN THE STATES PURSUANT TO A
PARTICULAR FEDERAL PROGRAM GOVERNED BY A SIMILARLY UNIFORM RULE IS TOO
TENUOUS TO INVOKE THE CLEARFIELD PRINCIPLE, ESPECIALLY IN LIGHT OF THE
CONSISTENT STATEMENTS BY THIS COURT THAT STATE LAW GOVERNS REAL
PROPERTY TRANSACTIONS. 

WHAT FOR MY BROTHER STEWART, HOWEVER, IS A "TEXTBOOK EXAMPLE" OF A
VIOLATION OF THE OBLIGATION OF CONTRACTS CLAUSE, IS FOR ME SOMETHING
MORE DIFFICULT.  THE SCOPE OF THIS CLAUSE HAS BEEN RESTRICTED BY PAST
DECISIONS OF THE COURT SUCH AS HOME BUILDING & LOAN ASSN. V. BLAISDELL,
290 U.S. 398 (1934), IN WHICH A MINNESOTA STATUTE EXTENDING THE PERIOD
OF TIME IN WHICH THE MORTGAGOR MIGHT REDEEM HIS EQUITY FOLLOWING
FORECLOSURE WAS UPHELD IN THE FACE OF VIGOROUS ARGUMENTS THAT THE
STATUTE IMPAIRED A VALID CONTRACT.  WERE THERE NO SIMPLER GROUND FOR
DISPOSING OF THE CASE, IT WOULD BE NECESSARY TO RESOLVE THIS VERY
DEBATABLE QUESTION. 

I BELIEVE THAT SUCH ANOTHER GROUND IS PRESENT HERE, IN VIEW OF THE
FACT THAT ACT 315 ENACTED BY LOUISIANA BY ITS TERMS APPLIES ONLY TO
TRANSACTIONS IN WHICH "THE UNITED STATES OF AMERICA, OR ANY OF ITS
SUBDIVISIONS OR AGENCIES" IS A PARTY.  WHILE IT IS ARGUED THAT
LOUISIANA BY OTHER LEGISLATION MADE THE SAME PRINCIPLE APPLICABLE TO
THE STATE GOVERNMENT, THIS PROPOSITION IS, AS THE COURT'S OPINION
POINTS OUT, BY NO MEANS DEMONSTRATED.  AND IN ANY EVENT THE CHANGE IN
THE PERIOD OF PRESCRIPTIBILITY WAS NOT MADE APPLICABLE TO
NONGOVERNMENTAL GRANTEES. 

IMPLICIT IN THE HOLDINGS OF A NUMBER OF OUR CASES DEALING WITH STATE
TAXATION AND REGULATORY MEASURES APPLIED TO THE FEDERAL GOVERNMENT IS
THAT SUCH MEASURES MUST BE NONDISCRIMINATORY.  SEE, E. G., JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 124 (1937); NEW YORK V. UNITED STATES,
326 U.S. 572 (1946); RFC V. BEAVER COUNTY, 328 U.S. 204, 210 (1946). 

THE DOCTRINE OF INTERGOVERNMENTAL IMMUNITY ENUNCIATED IN MCCULLOCH
V. MARYLAND, 4 WHAT.  316 (1819), HOWEVER IT MAY HAVE EVOLVED SINCE
THAT DECISION, REQUIRES AT LEAST THAT THE UNITED STATES BE IMMUNE FROM
DISCRIMINATORY TREATMENT BY A STATE WHICH IN SOME MANNER INTERFERES
WITH THE EXECUTION OF FEDERAL LAWS.  IF THE STATE OF PENNSYLVANIA COULD
NOT IMPOSE A NONDISCRIMINATORY PROPERTY TAX ON PROPERTY OWNED BY THE
UNITED STATES, UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174 (1944),
A FORTIORI, THE STATE OF LOUISIANA MAY NOT ENFORCE ACT 315 AGAINST THE
PROPERTY OF THE UNITED STATES INVOLVED IN THIS CASE.  I THEREFORE
CONCUR IN THE JUDGMENT OF THE COURT.     WILLIAM BRADFORD REYNOLDS
ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON THE BRIEFS WERE
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL FRIZZELL, DEPUTY
SOLICITOR GENERAL WALLACE, AND EDMUND B. CLARK.     AUSTIN W. LEWIS
ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WAS GENE W.
LAFITTE. 
..END :




WEINBERGER V. HYNSON, WESTCOTT & DUNNING 412 U.S. 609 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT 

     NO. 72 - 394.  ARGUED APRIL 17, 1973--DECIDED JUNE 18, 1973*

  461 F.2D 215, AFFIRMED AS MODIFIED. 

*TOGETHER WITH NO. 72 - 414, HYNSON, WESTCOTT & DUNNING, INC. V.
WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ET AL., ALSO
ON CERTIORARI TO THE SAME COURT. 


    THE FEDERAL FOOD, DRUG, AND COSMETIC ACT OF 1938, AS AMENDED IN

  1962, ESTABLISHES A SYSTEM OF PREMARKETING CLEARANCE FOR DRUGS

  AND PROHIBITS IN ^ 505(A) THE INTRODUCTION INTO COMMERCE OF ANY

  "NEW DRUG" UNLESS A NEW DRUG APPLICATION (NDA) FILED WITH THE

  FOOD AND DRUG ADMINISTRATION (FDA) WAS EFFECTIVE WITH RESPECT TO

  SUCH DRUG.  UNDER THE ACT PROCEDURES WERE ESTABLISHED FOR FILING

  "NEW DRUG" APPLICATIONS NOT ONLY FOR THE SAFETY OR DRUGS BUT FOR

THEIR EFFICACY AS WELL.  STANDARDS WERE PROVIDED UNDER WHICH,

  AFTER NOTICE AND HEARING, FDA COULD REFUSE TO ALLOW AN NDA TO

  BECOME EFFECTIVE, OR COULD SUSPEND AN NDA IN EFFECT ON THE BASIS

  OF NEW EVIDENCE THAT THE DRUG WAS NOT EFFECTIVE.  FDA IS DIRECTED

  TO REFUSE APPROVAL OF AN NDA AND TO WITHDRAW PRIOR APPROVAL IF

  "SUBSTANTIAL EVIDENCE" (^ 505(D)) THAT THE DRUG IS EFFECTIVE FOR

  ITS INTENDED USE IS LACING.  ALL NDA'S COULD NOT BE WITHDRAWN BY

  FDA FOR THE DRUG'S LACK OF EFFECTIVENESS.  THE 1962 ACT ALSO

CONTAINED A "GRANDFATHER' CLAUSE EXEMPTING FROM THE EFFECTIVENESS

  REQUIREMENTS ANY DRUG WHICH ON THE DAY PRECEDING ENACTMENT (1)

  WAS COMMERCIALLY USED OR SOLD IN THE UNITED STATES, (2) WAS NOT A

  "NEW DRUG" AS DEFINED IN THE 1938 ACT, AND (3) "WAS NOT COVERED

  BY AN EFFECTIVE APPLICATION" FOR A NEW DRUG UNDER THE 1938 ACT. 

  FDA HAD PERMITTED MORE THAN 9,000 NDA'S TO BECOME EFFECTIVE

  BETWEEN 1938 AND 1962, OF WHICH SOME 4,000 WERE STILL ON THE

  MARKET.  ADDITIONALLY, MANUFACTURERS HAVE MARKETED THOUSANDS OF

  "ME-TOO" DRUGS WITHOUT APPLYING FOR CLEARANCE, DRUGS SIMILAR OR

  IDENTICAL TO DRUGS WITH EFFECTIVE NDA'S MARKETED IN RELIANCE ON

  THE "PIONEER" DRUG APPLICATION APPROVED BY FDA.  TO AID IT IN

  FULFILLING THE STATUTORY MANDATE TO REVIEW ALL MARKETED DRUGS,

  WHETHER OR NOT PREVIOUSLY APPROVED, FOR THEIR EFFICACY, FDA

  RETAINED THE NATIONAL ACADEMY OF SCIENCES-NATIONAL RESEARCH

  COUNCIL (NAS-NRS) TO CREATE EXPERT PANELS TO REVIEW BY CLASS THE

  EFFICACY OF EACH APPROVED DRUG.  HOLDERS OF NDA'S WERE INVITED TO

  FURNISH THE PANELS WITH THE BEST AVAILABLE DATA TO ESTABLISH

  EFFICACY AND FDA ANNOUNCED THAT IT WOULD APPLY NAS-NRC EFFICACY

 FINDINGS TO ALL DRUGS, INCLUDING THE "ME-TOO" DRUGS.  RESPONDENT

  IN NO. 72 - 394 (HYNSON) HAD FILED AN APPLICATION FOR A DRUG

  CALLED LUTREXIN UNDER THE 1938 ACT.  FDA INFORMED HYNSON THAT THE

  STUDIES SUBMITTED WITH THE APPLICATION WERE NOT SUFFICIENTLY WELL

  CONTROLLED TO JUSTIFY THE CLAIMS OF EFFECTIVENESS, BUT ALLOWED

  THE APPLICATION TO BECOME EFFECTIVE SINCE THE 1938 ACT PERMITTED

  EVALUATION OF A NEW DRUG SOLELY ON THE BASIS OF ITS SAFETY.  WHEN

THE 1962 AMENDMENTS BECAME EFFECTIVE HYNSON SUBMITTED EVIDENCE OF

  THE EFFICACY OF THE DRUG, BUT THE NAS-NRC PANEL REPORTED THAT

  HYNSON HAD NOT SATISFIED THE REQUIREMENTS.  NOTICE OF AN

  INTENTION TO WITHDRAW APPROVAL OF THE NDA'S COVERING THE DRUG WAS

  GIVEN.  BEFORE THE HEARING, HYNSON BROUGHT SUIT IN THE DISTRICT

  COURT FOR A DECLARATORY JUDGMENT THAT THE DRUG WAS EXEMPT FROM

  THE EFFICACY REVIEW PROVISION OF THE 1962 ACT, OR THAT THERE WAS

  NO LACK OF SUBSTANTIAL EVIDENCE OF THE DRUG'S EFFICACY. 

  PETITIONERS' MOTION TO DISMISS WAS GRANTED.  THE COURT OF APPEALS

REVERSED, HOLDING THAT WHILE THE DRUG WAS NOT EXEMPT, HYNSON WAS

  ENTITLED TO A HEARING ON THE SUBSTANTIAL-EVIDENCE ISSUE.  NO. 72

  - 414 IS A CROSS-PETITION BY HYNSON FROM THE JUDGMENT OF THE

  COURT OF APPEALS, WHICH SUGGESTED THAT ONLY A DISTRICT COURT HAS

  AUTHORITY TO DETERMINE WHETHER LUTREXIN IS A "NEW DRUG."  WHILE

  HYNSON AGREES THAT THE COMMISSIONER HAS AUTHORITY TO DETERMINE

  NEW DRUG STATUS IN PROCEEDINGS TO WITHDRAW APPROVAL OF THE

  PRODUCT'S NDA, SOME MANUFACTURERS, PARTIES TO OTHER SUITS IN THIS

  GROUP OF CASES, ADVANCE THE CONTRARY VIEW.  HELD: 

     1.  THE 1962 AMENDMENTS AND THE REGULATIONS ISSUED THEREUNDER,

WHICH EXPRESS WELL-ESTABLISHED PRINCIPLES OF SCIENTIFIC

INVESTIGATION, IN THEIR REDUCTION OF THE "SUBSTANTIAL EVIDENCE"

  STANDARD TO DETAILED GUIDELINES FOR THE PROTECTION OF THE PUBLIC,

  MAKE FDA'S SO-CALLED ADMINISTRATIVE SUMMARY JUDGMENT PROCEDURE

  APPROPRIATE.  PP. 617 - 619. 

  2.  FDA'S PROCEDURE, WHEREBY IT WILL NOT PROVIDE A FORMAL

  HEARING WHEN IT IS APPARENT AT THE THRESHOLD THAT THE APPLICANT

  HAS NOT TENDERED ANY EVIDENCE WHICH ON ITS FACE MEETS THE

  STATUTORY STANDARDS AS PARTICULARIZED BY THE REGULATIONS, IS

  VALID.  UNITED STATES V. STORER BROADCASTING CO., 351 U.S. 192;

  FPC V. TEXACO, 377 U.S. 33.  PP. 620 - 622. 

     3.  IN NO. 72 - 394, THE COURT OF APPEALS' HOLDING THAT HYNSON

  WAS ENTITLED TO A HEARING ON WHETHER ITS SUBMISSION OF EVIDENCE

  SATISFIED ITS THRESHOLD BURDEN OF PROVIDING "SUBSTANTIAL

  EVIDENCE" IS AFFIRMED.  PP. 622 - 623. 

     4.  THE HEART OF THE STATUTORY PROCEDURE IS THE GRANT OF

  PRIMARY JURISDICTION TO FDA, SUBJECT TO JUDICIAL REVIEW WHEN

  ADMINISTRATIVE REMEDIES ARE EXHAUSTED.  PP. 623 - 627. 

     5.  ALTHOUGH A DRUG CAN BE "GENERALLY RECOGNIZED" BY EXPERTS
AS

  EFFECTIVE FOR INTENDED USE WITHIN THE MEANING OF THE ACT ONLY

  WHEN THAT EXPERT CONSENSUS IS FOUNDED UPON "SUBSTANTIAL

  EVIDENCE," ANY RULING ON LUTREXIN'S "NEW DRUG" STATUS IS

  PREMATURE, AND MUST AWAIT THE OUTCOME OF THE HEARING ON WHETHER

  HYNSON SUBMITTED "SUBSTANTIAL EVIDENCE," AS HELD IN NO. 72 - 394

(ITEM 3, SUPRA).  PP. 628 - 632. 

     6.  LUTREXIN IS NOT EXEMPT UNDER THE "GRANDFATHER" PROVISIONS

  OF THE 1962 ACT, AS HELD BY FDA AND THECOURT OF APPEALS, AND

  THEIR CONSTRUCTION ACCORDS WITH THE LEGISLATIVE HISTORY WHICH

SUGGESTS THAT THE EXEMPTION IS AFFORDED ONLY FOR DRUGS THAT NEVER

  HAD BEEN SUBJECT TO NEW DRUG REGULATION.  PP. 632 - 634. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND WHITE, MARSHALL, BLACKMUN, AND REHNQUIST, JJ., JOINED.  POWELL,
J., FILED AN OPINION CONCURRING IN THE RESULT AS TO PART I AND JOINING
IN PART II OF THE COURT'S OPINION, POST, P. 637.  BRENNAN, J., TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THE CASES.  STEWART, J., TOOK
NO PART IN THE DECISION OF THE CASES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES, TOGETHER WITH WEINBERGER V. BENTEX PHARMACEUTICALS,
INC., POST, P. 645, CIBA CORP. V. WEINBERGER, POST, P. 640, AND USV
PHARMACEUTICAL CORP. V. WEINBERGER, POST, P. 655, ALL HERE ON
CERTIORARI, RAISE A SERIES OF QUESTIONS UNDER THE 1962 AMENDMENTS /1/
TO THE FEDERAL FOOD, DRUG, AND COSMETIC ACT OF 1938.  52 STAT. 1040. 
THE 1938 ACT, WHICH ESTABLISHED A SYSTEM OF PREMARKETING CLEARANCE FOR
DRUGS, PROHIBITED THE INTRODUCTION INTO COMMERCE OF ANY "NEW DRUG"
UNLESS A NEW DRUG APPLICATION (NDA) FILED WITH THE FOOD AND DRUG
ADMINISTRATION (FDA) /2/ WAS EFFECTIVE WITH RESPECT TO THAT DRUG.  SEC.
505 (A), 52 STAT. 1052.  UNDER THE 1938 ACT A "NEW DRUG" WAS ONE NOT
GENERALLY RECOGNIZED BY QUALIFIED EXPERTS AS SAFE FOR ITS INTENDED
USE.  SEC. 201 (P) (1).  THE GOVERNMENT COULD SUE TO ENJOIN VIOLATIONS,
PROSECUTE CRIMINALLY AND SEIZE AND CONDEMN THE ARTICLES.  SECS. 301(D),
302(A), 303, 304.  THE ACT ESTABLISHED PROCEDURES FOR FILING NDA'S SEC.
505(B), AND PROVIDED STANDARDS UNDER WHICH, AFTER NOTICE AND HEARING,
FDA COULD REFUSE TO ALLOW AN NDA TO BECOME EFFECTIVE, SECS. 505(C) AND
(D), OR COULD SUSPEND AN NDA IN EFFECT ON THE BASIS OF NEW EVIDENCE
THAT THE DRUG WAS UNSAFE.  SEC. 505(E).  ORDERS DENYING OR SUSPENDING
AN NDA COULD BE REVIEWED IN A DISTRICT COURT ON THE ADMINISTRATIVE
RECORDS.  SEC. 505(H). 

THE 1962 ACT AMENDED ^ 201(P) (1) OF THE 1938 ACT TO DEFINE A "NEW
DRUG" AS A DRUG NOT GENERALLY RECOGNIZED AMONG EXPERTS AS EFFECTIVE AS
UELL AS SAFE FOR ITS INTENDED USE.  21 U.S.C. ^ 321(P) (1).  A NEW
DRUG, AS NOW DEFINED, STILL MAY NOT BE MARKETED UNLESS AN NDA IS IN
EFFECT.  FDA IS NOW DIRECTED TO REFUSE APPROVAL OF AN NDA AND TO
WITHDRAW ANY PRIOR APPROVAL IF "SUBSTANTIAL EVIDENCE"  /3/  THAT THE
DRUG IS EFFECTIVE FOR ITS INTENDED USE IS LACKING.  21 U.S.C. ^^ 355(D)
AND (E).  THUS, THE BASIC CLEARANCE SYSTEM, REQUIRING FDA APPROVAL OF
AN NDA BEFORE A "NEW DRUG" MAY BE LAWFULLY MARKETED, WAS CONTINUED,
EXCEPT THAT FDA NOW EITHER MUST APPROVE OR DISAPPROVE AND APPLICATION
WITHIN 180 DAYS.  21 U.S.C. ^ 355(C).  (UNDER THE 1938 ACT AN
APPLICATION AUTOMATICALLY BECAME EFFECTIVE IF IT WAS NOT DISAPPROVED.) 
JUDICIAL REVIEW WAS TRANSFERRED TO THE COURTS OF APPEALS.  21 U.S.C. ^
355(H). 

SINCE THE ACT AS AMENDED REQUIRES AFFIRMATIVE AGENCY APPROVAL, ALL
NDA'S "EFFECTIVE" PRIOR TO 1962 WERE DEEMED "APPROVED" UNDER THE NEW
DEFINITION, AND MANUFACTURERS WERE GIVEN TWO YEARS TO DEVELOP
SUBSTANTIAL EVIDENCE OF EFFECTIVENESS DURING WHICH PREVIOUSLY APPROVED
NDA'S COULD NOT BE WITHDRAWN BY FDA FOR A DRUG'S LACK OF
EFFECTIVENESS.  /4/  THE 1962 AMENDMENTS ALSO CONTAIN A "GRANDFATHER"
CLAUSE EXEMPTING FROM THE EFFECTIVENESS REQUIREMENTS ANY DRUG WHICH ON
THE DAY PRECEDING ENACTMENT (1) WAS COMMERCIALLY USED OR SOLD IN THE
UNITED STATES, (2) WAS NOT A 'NEW DRUG" AS DEFINED IN THE 1938 ACT (IT
BEING GENERALLY RECOGNIZED AS SAFE), AND (3) "WAS NOT COVERED BY AN
EFFECTIVE APPLICATION" FOR A NEW DRUG UNDER THE 1938 ACT.  /5/ 

BETWEEN 1938 AND 1962 FDA HAD PERMITTED 9,457 NDA'S TO BECOME
EFFECTIVE.  OF THESE, SOME 4,000 WERE STILL ON THE MARKET.  IN
ADDITION, THERE WERE THOUSANDS OF DRUGS WHICH MANUFACTURERS HAD
MARKETED WITHOUT APPLYING TO FDA FOR CLEARANCE.  THESE DRUGS, KNOWN AS
"ME-TOOS".  ARE SIMILAR TO OR IDENTICAL WITH DRUGS WITH EFFECTIVE NDA'S
AND ARE MARKETED IN RELIANCE ON THE "PIONEER" DRUG APPLICATION APPROVED
BY FDA.  IN SOME CASES, A MANUFACTURER OBTAINED AN ADVISORY OPINION
LETTER FROM FDA THAT ITS PRODUCT WAS GENERALLY RECOGNIZED AMONG EXPERTS
AS SAFE. 

TO AID IN ITS TASK OF FULFILLING THE STATUTORY MANDATE TO REVIEW ALL
MARKETED DRUGS FOR THEIR THERAPUETIC EFFICACY, WHETHER OR NOT
PREVIOUSLY APPROVED, FDA RETAINED THE NATIONAL ACADEMY OF SCIENCES
NATIONAL RESEARCH COUNCIL (NAS-NRC) TO CREATE EXPERT PANELS TO REVIEW
BY CLASS THE EFFICACY OF EACH APPROVED DRUG.  HOLDERS OF NDA'S WERE
INVITED TO FURNISH THE PANELS WITH THE BEST AVAILABLE DATA TO ESTABLISH
THE EFFECTIVENESS OF THEIR DRUGS.  /6/  THE PANELS REPORTED TO FDA; AND
ON JANUARY 23, 1968, FDA ANNOUNCED ITS POLICY OF APPLYING THE NAS-NRC
EFFICACY FINDINGS TO ALL DRUGS, INCLUDING THE RELATED "ME-TOO" DRUGS. 
/7/

        I 

RESPONDENT IN NO. 72 - 394, HYNSON, WESTCOTT & DUNNING, INC., HAD
FILED AN APPLICATION UNDER THE 1938 ACT FOR A DRUG CALLED LUTREXIN,
RECOMMENDED BY HYNSON FOR USE IN THE TREATMENT OF PREMATURE LABOR,
THREATENED AND HABITUAL ABORTION, AND DYSMENORRHEA.  FDA INFORMED
HYNSON THAT HYNSON'S STUDIES SUBMITTED WITH THE APPLICATION WERE NOT
SUFFICIENTLY WELL CONTROLLED TO JUSTIFY THE CLAIMS OF EFFECTIVENESS AND
URGED HYNSON NOT TO REPRESENT THE DRUG AS USEFUL FOR THREATNED AND
HABITUAL ABORTION.  BUT FDA ALLOWED THE APPLICATION TO BECOME
EFFECTIVE, SINCE THE 1938 ACT PERMITTED EVALUATION OF A NEW DRUG SOLELY
ON THE GROUNDS OF ITS SAFETY.  BEFORE THE 1962 AMENDMENTS HYNSON FILED
AN APPLICATION FOR A RELATED DRUG WHICH FDA, AGAIN ON THE BASIS OF THE
TEST OF SAFETY, ALLOWED TO BECOME EFFECTIVE.  WHEN THE 1962 AMENDMENTS
BECAME EFFECTIVE AND NAS-NRC UNDERTOOK TO APPRAISE THE EFFICACY OF
DRUGS THERETOFORE APPROVED AS SAFE, HYNSON SUBMITTED A LIST OF
LITERATURE REFERENCES, A COPY OF AN UNPUBLISHED STUDY, AND A
REPRESENTATIVE SAMPLE TESTIMONIAL LETTER ON BEHALF OF LUTREXIN.  THE
PANEL OF NAS-NRC WORKING IN THE RELEVANT FIELD REPORTED TO FDA THAT
HYNSON'S CLAIMS FOR EFFECTIVENESS OF THE DRUG WERE EITHER INAPPROPRIATE
OR UNWARRANTED IN THE ABSENCE OF SUBMISSION OF FURTHER APPROPRIATE
DOCUMENTATION.  AT THE INVITATION OF THE COMMISSIONER OF FOOD AND
DRUGS, HYNSON SUBMITTED ADDITIONAL DATA.  BUT THE COMMISSIONER
CONCLUDED THAT THIS ADDITIONAL INFORMATION WAS INADEQUATE AND PUBLISHED
NOTICE OF HIS INTENTION TO WITHDRAW APPROVAL OF THE NDA'S COVERING THE
DRUG, OFFERING HYNSON THE OPPORTUNITY FOR A PREWITHDRAWAL HEARING. 
BEFORE THE HEARING COULD TAKE PLACE, HYNSON BROUGHT SUIT IN THE
DISTRICT COURT FOR A DECLARATORY JUDGMENT THAT THE DRUGS IN QUESTION
WERE EXEMPT FROM THE EFFICACY REVIEW PROVISIONS OF THE 1962 AMENDMENTS
OR, ALTERNATIVELY, THAT THERE WAS NO LACK OF SUBSTANTIAL EVIDENCE OF
THE DRUG'S EFFICACY.  THE GOVERNMENT'S MOTION TO DISMISS WAS GRANTED,
THE DISTRICT COURT RULING THAT FDA HAD PRIMARY JURIDICTION AND THAT
HYNSON HAD FAILED TO EXHAUST ITS ADMINISTRATIVE REMEDIES. 

WHILE THE DISTRICT COURT LITIGATION WAS PENDING, FDA PROMULGATED NEW
REGULATIONS ESTABLISHING MINIMAL STANDARDS FOR "ADEQUATE AND WELL
CONTROLLED INVESTIGATIONS" AND LIMITING THE RIGHT TO A HEARING TO THOSE
APPLICANTS WHO COULD PROFFER AT LEAST SOME EVIDENCE MEETING THOSE
STANDARDS.  /8/  ALTHOUGH HYNSON MAINTAINED THAT IT WAS NOT SUBJECT TO
THE NEW REGULATIONS BECAUSE ITS INITIAL REQUEST FOR A HEARING PREDATED
THEIR ISSUANCE, IT RENEWED ITS REQUEST AND SUBMITTED THE MATERIAL WHICH
IT CLAIMED CONSTITUTED "SUBSTANTIAL EVIDENCE" OF LUTREXIN'S
EFFECTIVENESS.  THE COMMISSIONER DENIED THE REQUEST FOR A HEARING AND
WITHDREW THE NDA FOR LUTREXIN.  HE RULED THAT LUTREXIN IS NOT EXEMPT
FROM THE 1962 AMENDMENTS AND THAT HYNSON HAD NOT SUBMITTED ADEQUATE
EVIDENCE THAT LUTREXIN IS NOT A NEW DRUG OR IS EFFECTIVE.  THE COURT OF
APPEALS REVERSED, 461 F.2D 215, HOLDING THAT WHILE THE DRUG IN QUESTION
WAS NOT EXEMPT, HYNSON WAS ENTITLED TO A HEARING ON THE SUBSTANTIAL
EVIDENCE QUESTION. 

THE MANUFACTURER FAILS TO CARRY THE BURDEN OF SHOWING THERE IS
"SUBSTANTIAL EVIDENCE"  /10/  RESPECTING THE EFFICACY OF THE DRUG.  AS
THE COURT OF APPEALS SAYS, "SUBSTANTIAL EVIDENCE" WAS SUBSTITUTED FOR
"PREPONDERANCE " OF THE EVIDENCE.  461 F.2D, AT 220.  THE ACT AND THE
REGULATIONS, IN THEIR REDUCTION OF THAT STANDARD TO DETAILED
GUIDELINES, /11/  MAKE FDA'S SO-CALLED ADMINISTRATIVE SUMMARY JUDGMENT
PROCEDURE APPROPRIATE. 

THE GENERAL CONTOURS OF "SUBSTANTIAL EVIDENCE" ARE DEFINED BY ^
505(D) OF THE ACT TO INCLUDE "EVIDENCE CONSISTING OF ADEQUATE AND WELL
CONTROLLED INVESTIGATIONS, INCLUDING CLINICAL INVESTIGATIONS, BY
EXPERTS QUALIFIED BY SCIENTIFIC TRAINING AND EXPERIENCE TO EVALUATE THE
EFFECTIVENESS OF THE DRUG INVOLVED, ON THE BASIS OF WHICH IT COULD
FAIRLY AND RESPONSIBLY BE CONCLUDED BY SUCH EXPERTS THAT THE DRUG WILL
HAVE THE EFFECT IT PURPORTS OR IS REPRESENTED TO HAVE UNDER THE
CONDITIONS OF USE PRESCRIBED, RECOMMENDED, OR SUGGESTED IN THE LABELING
OR PROPOSED LABELING THEREOF."  21 U.S.C. ^ 355(D).  ACTING PURSUANT TO
HIS "AUTHORITY TO PROMULGATE REGULATIONS FOR THE EFFICIENT ENFORCEMENT"
OF THE ACT, ^ 701(A), 21 U.S.C. ^ 371(A), THE COMMISSIONER HAS
DETAILED THE "PRINCIPLES . . . RECOGNIZED BY THE SCIENTIFIC COMMUNITY
AS THE ESSENTAILS OF ADEQUATE AND WELL-CONTROLLED CLINICAL
INVESTIGATIONS.  THEY PROVIDE THE BASIS FOR THE DETERMINATION WHETHER
THERE IS 'SUBSTANTIAL EVIDENCE' TO SUPPORT THE CLAIMS OF EFFECTIVENESS
FOR 'NEW DRUGS' . . ."  21 CFR ^ 130.12(A) (5) (II).  THEY INCLUDE A
"PLAN OR PROTOCOL" SETTING FORTH THE OBJECTIVE OF THE STUDY AND AN
ADEQUATE METHOD FOR SELECTING APPROPRIATE SUBJECTS, /12/  EXPLAINING
THE METHODS OF OBSERVATION AND STEPS TAKEN TO MINIMIZE BIAS, PROVIDING
A COMPARISON BY ONE OF FOUR "RECOGNIZED" METHODS OF THE RESULTS OF
TREATMENT OR DIAGNOSIS WITH A CONTROL, AND SUMMARIZING THE METHODS OF
ANALYSIS, INCLUDING ANY APPROPRIATF STATISTICAL METHODS.  ID., ^
130.12(A) (5) (II) (A).  NO INVESTIGATION WILL BE CONSIDERED "ADEQUATE
FOR APPROVAL OF A NEW DRUG" UNLESS THE TESTS DRUG IS "STANDARDIZED AS
TO IDENTITY, STRENGTH, QUALITY, PURITY, AND DOSAGE FORM TO GIVE
SIGNIFICANCE TO THE RESULTS OF THE INVESTIGATION."  ID., ^ 130.12(A)
(5) (II) (B).  FINALLY, THE REGULATION PROVIDES THAT "(UNCONTROLLED
STUDIES OR PARTIALLY CONTROLLED STUDIES ARE NOT ACCEPTABLE AS THE SOLE
BASIS FOR THE APPROVAL OF CLAIMS OF EFFECTIVENESS.  SUCH STUDIES,
CAREFULLY CONDUCTED AND DOCUMENTED, MAY PROVIDE CORROBORATIVE SUPPORT .
. . ISOLATED CASE REPORTS, RANDOM EXPERIENCE, AND REPORTS LACKING THE
DETAILS WHICH PERMIT SCIENTIFIC EVALUATION WILL NOT BE CONSIDERED." 
ID., ^ 130.12(A) (5) (II) (C). 

LOWER COURTS HAVE UPHELD THE VALIDITY OF THESE REGULATIONS.  /13/
AND IT IS NOT DISPUTED HERE THAT THEY EXPRESS WELL-ESTABLISHED
PRINCIPLES OF SCIENTIFIC INVESTIGATION.  MOREOVER, THEIR STRICT AND
DEMANDING STANDARDS, BARRING ANECDOTAL EVIDENCE INDICATING THAT DOCTORS
"BELIEVE" IN THE EFFICACY OF A DRUG, ARE AMPLY JUSTIFIED BY THE
LEGISLATIVE HISTORY.  THE HEARINGS UNDERLYING THE 1962 ACT SHOW A
MARKED CONCERN THAT IMPRESSIONS AND BELIEFS OF PHYSICIANS, NO MATTER
HOW FERVENTLY HELD, ARE TREACHEROUS.  /14/  CONGRESS IN ITS DEFINITION
OF "SUBSTANTIAL EVIDENCE" IN ^ 505(D) WROTE THE REQUIREMENT OF
"EVIDENCE CONSISTING OF ADEQUATE AND WELL-CONTROLLED INVESTIGATIONS." 
THE SENATE REPORT MAKES CLEAR THAT AN ABRUPT DEPARTURE WAS BEING TAKEN
FROM OLD NORMS FOR MARKETING DRUGS.  THERE HAD BEEN MOUNTING CONCERN
OVER EFFICACY OF DRUGS AS WELL AS THEIR SAFETY.  /15/  THE REPORT
STATED:  /16/ 

"(A) CLAIM COULD BE REJECTED IF IT WERE FOUND (A) THAT THE
INVESTIGATIONS UERE NOT 'ADEQUATE'; (B) THAT THEY WERE NOT 'WELL
CONTROLLED'; (C) THAT THEY HAD BEEN CONDUCTED BY EXPERTS NOT QUALIFIED
TO EVALUATE THE EFFECTIVENESS OF THE DRUG FOR WHICH THE APPLICATION IS
MADE; OR (D) THAT THE CONCLUSIONS DRAWN BY SUCH EXPERTS COULD NOT
FAIRLY AND RESPONSIBLY BE DERIVED FROM THEIR INVESTIGATIONS." 

TO BE SURE, THE ACT REQUIRES FDA TO GIVE "DUE NOTICE AND OPPORTUNITY
FOR HEARING TO THE APPLICANT" BEFORE IT CAN WITHDRAW ITS APPROVAL OF AN
NDA.  ^ 505(E), 21 U.S.C. ^ 355(E).  FDA, HOWEVER, BY REGULATION,
REQUIRES ANY APPLICANT WHO DESIRES A HEARING TO SUBMIT REASONS "WHY THE
APPLICATION . . . SHOULD NOT BE WITHDRAWN, TOGETHER WITH A WELL
ORGANIZED AND FULL-FACTUAL ANALYSIS OF THE CLINICAL AND OTHER
INVESTIGATIONAL DATA HE IS PREPARED TO PROVE IN SUPPORT OF THIS
OPPOSITION TO THE NOTICE OF OPPORTUNITY FOR A HEARING.  . .  WHEN IT
CLEARLY APPEARS FROM THE DATA IN THE APPLICATION AND FROM THE REASONS
AND FACTUAL ANALYSIS IN THE REQUEST FOR THE HEARING THAT THERE IS NO
GENUINE AND SUBSTANTIAL ISSUE OF FACT . . ., E. G., NO ADEQUATE AND
WELL-CONTROLLED CLINICAL INVESTIGATIONS TO SUPPORT THE CLAIMS OF
EFFECTIVENESS," THE COMMISSIONER MAY DENY A HEARING AND ENTER AN ORDER
WITHDRAWING THE APPLICATION BASED SOLELY ON THESE DATA.  21 CFR ^
130.14(B).  WHAT THE AGENCY HAS SAID, THEN, IS THAT IT WILL NOT PROVIDE
A FORMAL HEARING WHERE IT IS APPARENT AT THE THRESHOLD THAT THE
APPLICANT HAS NOT TENDERED ANY EVIDENCE WHICH ON ITS FACE MEETS THE
STATUTORY STANDARDS AS PARTICULARIZED BY THE REGULATIONS. 

THE PROPRIETY OF SUCH A PROCEDURE WAS DECIDED IN UNITED STATES V.
STORER BROADCASTING CO., 351 U.S. 192, 205, AND FPC V. TEXACO, 377 U.S.
33, 39.  WE SAID IN TEXACO: 

"(THE STATUTORY REQUIREMENT FOR A HEARING UNDER ^ 7 (OF THE NATURAL
GAS ACT) DOES NOT PRECLUDE THE COMMISSION FROM PARTICULARIZING
STATUTORY STANDARDS THROUGH THE RULEMAKING PROCESS AND BARRING AT THE
THRESHOLD THOSE WHO NEITHER MEASURE UP TO THEM NOR SHOW REASONS WHY IN
THE PUBLIC INTEREST THE RULE SHOULD BE WAIVED."  IBID. THERE CAN BE NO
QUESTION THAT TO PREVAIL AT A HEARING AN APPLICANT MUST FURNISH
EVIDENCE STEMMING FROM "ADEQUATE AND WELL-CONTROLLED INVESTIGATIONS." 
WE CANNOT IMPUTE TO CONGRESS THE DESIGN OF REQUIRING, NOR DOES DUE
PROCESS DEMAND, A HEARING WHEN IT APPEARS CONCLUSIVELY FROM THE
APPLICANT'S "PLEADINGS" THAT THE APPLICATION CANNOT SUCCEED.  /17/ 
THE NAS-NRC PANELS EVALUATED APPROXIMATELY 16,500 CLAIMS MADE ON BEHALF
OF THE 4,000 DRUGS MARKETED PURSUANT TO EFFECTIVE NDA'S IN 1962. 
SEVENTY PERCENT OF THESE CLAIMS WERE FOUND NOT TO BE SUPPORTED BY
SUBSTANTIAL EVIDENCE OF EFFECTIVENESS, AND ONLY 434 DRUGS WERE FOUND
EFFECTIVE FOR ALL THEIR CLAIMED USES.  IF FDA WERE REQUIRED
AUTOMATICALLY TO HOLD A HEARING FOR EACH PRODUCT WHOSE EFFICACY WAS
QUESTIONED BY THE NAS-NRC STUDY, EVEN THOUGH MANY HEARINGS WOULD BE AN
EXERCISE IN FUTILITY, WE HAVE NO DOUBT THAT IT COULD NOT FULFILL ITS
STATUTORY MANDATE TO REMOVE FROM THE MARKET ALL THOSE DRUGS WHICH DO
NOT MEET THE EFFECTIVENESS REQUIREMENTS OF THE ACT. 

IF THIS WERE A CASE INVOLVING TRIAL BY JURY AS PROVIDED IN THE
SEVENTH AMENDMENT, THERE WOULD BE SHARPER LIMITATIONS ON THE USE OF
SUMMARY JUDGMENT, /18/  AS OUR DECISIONS REVEAL.  SEE, E. G., ADICKES
V. KRESS & CO., 398 U.S. 144, 153 - 161; WHITE MOTOR CO. V. UNITED
STATES, 372 U.S. 253.  BUT CONGRESS SURELY HAS GREAT LEEWAY IN SETTING
STANDARDS FOR RELEASING ON THE PUBLIC, DRUGS WHICH MAY WELL BE MIRACLES
OR, ON THE OTHER HAND, MERELY EASY MONEY-MAKING SCHEMES THROUGH USE OF
FRAUDULENT ARTICLES LABELLED IN MYSTERIOUS SCIENTIFIC DRESS.  THE
STANDARD OF "WELL-CONTROLLED INVESTIGATIONS" PARTICULARIZED BY THE
REGULATIONS IS A PROTECTIVE MEASURE DESIGNED TO FERRET OUT THOSE DRUGS
FOR WHICH THERE IS NO AFFIRMATIVE, RELIABLE EVIDENCE OF EFFECTIVENESS. 
THE DRUG MANUFACTURERS HAVE FULL AND PRECISE NOTICE OF THE EVIDENCE
THEY MUST PRESENT TO SUSTAIN THEIR NDA'S, AND UNDER THESE CIRCUMSTANCES
WE FIND FDA HEARING REGULATIONS UNEXCEPTIONABLE ON ANY STATUTORY OR
CONSTITUTIONAL GROUND. 

OUR CONCLUSION THAT THE SUMMARY JUDGMENT PROCEDURE OF FDA IS VALID
DOES NOT END THE MATTER, FOR HYNSON ARGUES THAT ITS SUBMISIION TO FDA
SATISFIED ITS THRESHOLD BURDEN.  IN REVIEWING AN ORDER OF THE
COMMISSIONER DENYING A HEARING, A COURT OF APPEALS MUST DETERMINE
WHETHER THE COMMISSIONER'S FINDINGS ACCURATELY REFLECT THE STUDY IN
QUESTION AND IF THEY DO, UHETHER THE DEFICIENCIES HE FINDS CONCLUSIVELY
RENDER THE STUDY INADEQUATE OR UNCONTROLLED IN LIGHT OF THE PERTIMENT
REGULATIONS.  /19/  THERE IS A CONTRARIETY OF OPINION WITHIN THE COURT
CONCERNING THE ADEQUACY OF HYNSON'S SUBMISSION.  SINCE A MAJORITY ARE
OF THE VIEW THAT THE SUBMISSION WAS SUFFICIENT TO WARRANT A HEARING, WE
AFFIRM THE COURT OF APPEALS ON THAT PHASE OF THE CASE. 

        II 

NO. 72 - 414 IS A CROSS-PETITION BY HYNSON FROM THE JUDGMENT OF THE
COURT OF APPEALS.  THIS CROSS-PETITION RAISES QUESTIONS CONCERNING THE
"NEW DRUG" PROVISIONS OF THE 1962 AMENDMENTS.  THE COURT OF APPEALS
SUGGESTED THAT ONLY A DISTRICT COURT HAS AUTHORITY TO DETERMINE WHETHER
LUTREXIN IS A "NEW DRUG."  THE GOVERNMENT CONTENDS THAT THE
COMMISSIONER HAS AUTHORITY TO DETERMINE NEW DRUG STATUS IN PROCEEDINGS
TO WITHDRAW APPROVAL OF THE PRODUCT'S NDA UNDER ^ 505(E).  ALTHOUGH
HYNSON AGREES, SOME OF THE MANUFACTURERS, PARTIES TO OTHER SUITS IN
THIS GROUP OF CASES, ADVANCE THE CONTRARY VIEW. 

PRIOR TO 1938 THERE WAS NO MACHINERY FOR THE PREMARKETING APPROVAL
OF DRUGS SOLD IN COMMERCE.  UNDER THE 1906 ACT, 34 STAT. 768,
ADULTERATED AND MISBRANDED DRUGS WERE NARROWLY DEFINED, AND THE ACT
PROVIDED ONLY CRIMINAL SANCTIONS AND SEIZURE BY LIBEL FOR
CONDEMNATION.  AS PREVIOUSLY NOTED, THE 1938 ACT PROVIDED FOR
REGULATORY CLEARANCE OF DRUGS PRIOR TO MARKETING AND FOR ADMINISTRATIVE
SUSPENSION OF ANY CLEARANCE IF REQUIRED IN THE INTERESTS OF PUBLIC
SAFETY.  TO INTRODUCE A NEW DRUG AN APPLICATION HAD TO BE EFFECTIVE
WITH RESPECT TO THAT DRUG.  THE APPLICATION WAS TO BECOME EFFECTIVE
WITHIN A FIXED PERIOD UNLESS THE AGENCY AFTER NOTICE AND OPPORTUNITY
FOR HEARING REFUSED TO PERMIT IT TO BECOME EFFECTIVE, FINDING THAT IT
COULD NOT DETERMINE FROM EXISTING EVIDENCE OR HAD NOT BEEN SHOWN THAT
IT WAS SAFE.  52 STAT. 1041 - 1042, 1052.  ANY NDA COULD BE SUSPENDED
IF CLINICAL EXPERIENCE OR NEW TESTING SHOWED THAT THE DRUG WAS NOT
SAFE.  ID., AT 1053.  ORDERS DENYING OR SUSPENDING AN NDA WERE
REVIEWABLE ON THE ADMINISTRATIVE RECORD IN A DISTRICT COURT.  IBID.
MARKETING A NEW DRUG WITHOUT AN EFFECTIVE NDA COULD BE ENJOINED OR MADE
THE BASIS OF A CRIMINAL PROSECUTION, OR THE DRUG COULD BE SEIZED IN
LIBEL AND CONDEMNATION PROCEEDINGS. 

THERE WAS A STEADY STREAM OF NDA'S UNDER THAT ACT SUPPORTED BY
VOLUMINOUS DATA.  /20/  MANY NEW DRUGS CLAIMING "ME-TOO" STATUS WERE
MARKETED ILLEGALLY OR WERE LAUNCHED WITH AN ADVISORY OPINION OF FDA
THAT THEY WERE RECOGNIZED AS SAFE.  IT IS ESTIMATED THAT BY 1969 THERE
WERE FIVE IDENTICAL OR SIMILAR DRUGS FOR EVERY DRUG WITH AN EFFECTIVE
NDA.  ENORMOUS ADMINISTRATIVE PROBLEMS WERE CREATED.  EACH NDA
CONTAINED ABOUT 30 VOLUMES, A STACK 10 TO 12 FEET HIGH; AND SOME
CONTAINED AS MANY AS 400 VOLUMES OF DATA. 

IT IS CLEAR TO US THAT FDA HAS POWER TO DETERMINE WHETHER PARTICULAR
DRUGS REQUIRE AN APPROVED NDA IN ORDER TO BE SOLD TO THE PUBLIC.  FDA
IS INDEED THE ADMINISTRATIVE AGENCY SELECTED BY CONGRESS TO ADMINISTER
THE ACT, AND IT CANNOT ADMINISTER THE ACT INTELLIGENTLY AND RATIONALLY
UNLESS IT HAS AUTHORITY TO DETERMINE WHAT DRUGS ARE "NEW DRUGS" UNDER ^
201(P) AND WHETHER THEY ARE EXEMPT FROM THE EFFICACY REQUIREMENTS OF
THE 1962 AMENDMENTS BY THE GRANDFATHER CLAUSE OF ^ 107(C) (4). 

REGULATORY AGENCIES HAVE BY THE REQUIREMENTS OF PARTICULAR STATUTES
USUALLY PROCEEDED ON A CASE-BY-CASE BASIS, GIVING EACH PERSON SUBJECT
TO REGULATION SEPARATE HEARINGS.  BUT THERE IS NOT ALWAYS A
CONSTITUTIONAL REASON WHY THAT MUST BE DONE.  UNITED STATES V. STORER
BROADCASTING CO., 351 U.S. 192, IS ONE EXAMPLE.  WE THERE UPHELD RULES
OF THE FEDERAL COMMUNICATIONS COMMISSION LIMITING THE NUMBER OF
BROADCATING STATIONS A SINGLE INDIVIDUAL MIGHT OWN, SAYING THAT THAT
WAS A PROPER EXERCISE OF THE AGENCY'S "RULE-MAKING AUTHORITY NECESSARY
FOR THE ORDERLY CONDUCT OF ITS BUSINESS."  ID., AT 202.  THE
COMPREHENSIVE, RATHER THAN THE INDIVIDUAL, TREATMENT MAY INDEED BY
NECESSARY FOR QUICK EFFECTIVE RELIEF.  SEE PERMIAN BASIN AREA RATE
CASES, 390 U.S. 747.  A GENERIC DRUG -- WHICH IS FOUND TO BE UNSAFE
AND/OR LACKING IN EFFICACY -- MAY BE MANUFACTURED BY SEVERAL PERSONS OR
MANUFACTURERS.  TO REQUIRE SEPARATE JUDICIAL PROCEEDINGS TO BE BROUGHT
AGAINST EACH, AS IF EACH WERE THE OWNER OF A BLACK ACRE BEING
CONDEMNED, WOULD BE TO CREATE DELAY WHERE IN THE INTERESTS OF PUBLIC
HEALTH THERE SHOULD BE PROMPT ACTION.  A SINGLE ADMINISTRATIVE
PROCEEDING IN WHICH EACH MANUFACTURER MAY BE HEARD IS CONSTITUTIONALLY
PERMISSIBLE MEASURED BY THE REQUIREMENTS OF PROCEDURAL DUE PROCESS. 

FDA MAINTAINS THAT A WITHDRAWAL OF ANY NDA APPROVAL COVERS ALL "ME
TOO" DRUGS.  FOR THE REASONS STATED, THAT PROCEDURE IS A PERMISSIBLE
ONE WHERE EVERY MANUFACTURER OF A CHALLENGED DRUG HAS AN OPPORTUNITY TO
BE HEARD.  FDA UNDER ^ 554 OF THE ADMINISTRATIVE PROCEDURE ACT MAY
ISSUE A DECLARATORY ORDER GOVERNING ALL DRUGS COVERED BY A PARTICULAR
NDA.  5 U.S.C. ^ 554(E).  THAT SECTION PRESCRIBES THE PROCEDURES AN
AGENCY MUST FOLLOW "IN EVERY CASE OF ADJUDICATION REQUIRED BY STATUTE
TO BE DETERMINED ON THE RECORD AFTER OPPORTUNITY FOR AN AGENCY
HEARING."  ^ 554(A).  THE INDUSTRY MAINTAINS THAT ^ 554(E) IS OF NO
AVAIL TO FDA BECAUSE IN A WITHDRAWAL PROCEEDING A COMMON ISSUE IS
WHETHER A DRUG IS A "NEW DRUG."  THAT ISSUE, IT IS ARGUED, CAN BE
RESOLVED ONLY IN A COURT PROCEEDING WHERE THERE IS AN ADJUDICATION "ON
THE RECORD OF (A) HEARING."  BUT THAT ASSUMES AN INDIVIDUALIZED HEARING
AND ADJUDICATION AS IS COMMON IN REGULATORY PROCEEDINGS.  SECTION
554(E), HOWEVER, DOES NOT PLACE ADMINISTRATIVE PROCEEDINGS IN THAT
STRAITJACKET.  IT PROVIDES THAT AN AGENCY "IN ITS SOUND DISCRETION, MAY
ISSUE A DECLARATORY ORDER TO TERMINATE A CONTROVERSY OR REMOVE
UNCERTAINTY."  THE TERMINATION OF A CONTROVERSY OVER A "NEW DRUG" MAY
OFTEN BE OF PRIME IMPORTANCE.  THIS IS AN AGE OF EVER-EXPANDING DOCKETS
AT THE ADMINISTRATIVE AS WELL AS AT THE JUDICIAL LEVEL.  IF THE
ADMINISTRATIVE CONTROLS OVER DRUGS ARE TO BE EFFICIENT, THEY MUST BE
EXERCISED WITH DISPATCH.  ONLY PARALYSIS WOULD RESULT IF CASE-BY-CASE
BATTLES IN THE COURTS WERE THE ONLY WAY TO PROTECT THE PUBLIC AGAINST
UNSAFE OR INEFFECTIVE DRUGS.  MOREOVER, IF EVERY "ME-TOO" DRUG IN A
PARTICULAR GENERIC CATEGORY HAD TO BE PUT TO THE TEST IN COURT ACTIONS,
GREAT INEQUITIES MIGHT WELL RESULT.  IT MIGHT TAKE MONTHS TO ELIMINATE
ONE "ME-TOO" DRUG MANUFACTURED BY ONE COMPANY FROM THE MARKET. 
MEANWHILE, COMPETITORS SELLING DRUGS IN THE SAME CATEGORY WOULD GO SCOT
FREE UNTIL THE TEDIOUS AND LABORIOUS PROCEDURES OF LITIGATION REACHED
THEM.  WE CANNOT BELIEVE THAT CONGRESS ENGAGED IN SUCH AN EXERCISE IN
FUTILITY WHEN IT ENACTED THE 1962 AMENDMENTS.  THAT WOULD IN EFFECT
RESTORE THE ENFORCEMENT PROVISIONS TO THE STATUS THEY ENJOYED UNDER THE
RATHER PRIMITIVE 1906 ACT.  WE HOLD THAT FDA BY REASONS OF ^ 554(E) OF
THE ADMINISTRATIVE PROCEDURE ACT MAY ISSUE A DECLARATORY ORDER TO
TERMINATE A CONTROVERSY OVER A "NEW DRUG"  OR TO REMOVE ANY UNCERTAINTY
WHETHER  A PARTICULAR DRUG IS A "NEW DRUG" WITHIN THE MEANING OF SEC.
201(P) (1) OF THE 1938 ACT.  SEE ABBOTT LABORATORIES V. GARDNER, 387
U.S. 136. 

IT IS ARGUED, HOWEVER, THAT THE ONLY LAWFUL PURPOSE OF AN FDA
HEARING IS TO ALLOW IT A METHOD FOR DETERMINING WHICH LAWSUITS IT WILL
FILE IN THE FUTURE.  YET THAT IS ONLY ANOTHER VERSION OF THE TACTICS OF
DELAY AND PROCRASTINATION WHICH THE INDUSTRY OFFERS AS THE WAY BEST TO
SERVE INDUSTRY'S NEEDS.  THE PUBLIC NEEDS ARE, HOWEVER, OPPOSED AND
PARAMOUNT.  WE DO NOT ACCEPT THE INVITATION TO HOLD THAT FDA HAS NO
JURISDICTION TO DETERMINE WHETHER A PARTICULAR DRUG IS A "NEW DRUG" AND
TO DECIDE WHETHER AN NDA SHOULD BE WITHDRAWN. 

ITS DETERMINATION THAT A PRODUCT IS A "NEW DRUG" OR A "ME-TOO" DRUG
IS, OF COURSE, REVIEWABLE.  BUT ITS JURISDICTION TO DETERMINE WHETHER
IT HAS JURISDICTION IS AS ESSENTIAL TO ITS EFFECTIVE OPERATION AS IS A
COURT'S LIKE POWER.  CF. UNITED STATES V. SHIPP, 203 U.S. 563, 573. 
THE HEART OF THE NEW PROCEDURES DESIGNED BY CONGRESS IS THE GRANT OF
PRIMARY JURISDICTION TO FDA, THE EXPERT AGENCY IT CREATED.  FDA DOES
NOT HAVE THE FINAL SAY, FOR REVIEW MAY BE HAD, NOT IN A DISTRICT COURT
(EXCEPT IN A LIMITED GROUP OF CASES WE WILL DISCUSS), BUT IN A COURT OF
APPEALS.  FDA DOES NOT HAVE UNBRIDLED DISCRETION TO DO WHAT IT
PLEASES.  ITS PROCEDURES MUST SATISFY THE REDIMENTS OF FAIR PLAY. 
JUDICIAL RELIEF IS AVAILABLE ONLY AFTER ADMINISTRATIVE REMEDIES HAVE
BEEN EXHAUSTED. 

IT IS ARGUED THAT THOUGH FDA IS EMPOWERED TO DECIDE THE THRESHOLD
QUESTION WHETHER THE DRUG IS A "NEW DRUG," THAT POWER IS ONLY AN
INCIDENT TO ITS POWER TO APPROVE OR WITHDRAW APPROVAL OF NDA'S.  SOME
MANUFACTURERES, HOWEVER, HAVE NO NDA'S IN EFFECT AND ARE NOT SEEKING
APPROVAL OF ANY DRUGS.  NEVERTHELESS, FDA MAY MAKE A DECLARATORY ORDER
THAT A DRUG IS A "NEW DRUG."  WHILE THAT ORDER IS NOT REVIEWABLE IN THE
COURT OF APPEALS UNDER ^ 505(H), IT IS REVIEWABLE BY THE DISTRICT COURT
UNDER THE ADMINISTRATIVE PROCEDURE ACT.  5 U.S.C. ^^ 701-704; CITIZENS
TO PRESERVE OVERTON PARK V. VOLPE, 401 U.S. 402, 410; ABBOTT
LABORATORIES V. GARDNER, SUPRA, AT 139 - 148.  BY ANALOGY AN AGENCY
ORDER DECLARING A COMMODITY NOT EXEMPT FROM REGULATION IS NORMALLY A
DECLARATORY ORDER THAT IS REVIEWABLE, AS WE HELD IN FROZEN FOOD EXPRESS
V. UNITED STATES, 351 U.S. 40. 

THE QUESTION THEN PRESENTED IS WHETHER FDA PROPERLY EXERCISED ITS
JURISDICTION IN THIS CASE.  AS INDICATED ABOVE, HYNSON IN REQUESTING AN
ADMINISTRATIVE HEARING ALSO ASKED FDA TO DECIDE THAT LUTREXIN IS NOT A
"NEW DRUG" WITHIN THE MEANING OF ^ 201(P) AS AMENDED, 21 U.S.C. ^
321(P).  /21/  IN ADDITION, IT ASKED THAT LUTREXIN BE "GRANDFATHERED"
UNDER ^ 107(C) (4) OF THE 1962 AMENDMENTS.  /22/  THE COMMISSIONER
REJECTED BOTH CLAIMS.  FINDING THAT HYNSON HAD FAILED TO PRESENT ANY
EVIDENCE OF ADEQUATE AND WELL-CONTROLLED INVESTIGATIONS IN SUPPORT OF
LUTREXIN'S EFFECTIVENESS, HE CONCLUDED THAT "THERE IS NO DATA BASE UPON
WHICH EXPERTS CAN FAIRLY AND RESPONSIBLEY CONCLUDE THAT THE SAFETY AND
EFFECTIVENESS OF THE DRUGS HAS BEEN PROVEN AND IS SO WELL ESTABLISHED
THAT THE DRUGS CAN BE GENERALLY RECOGNIZED AMONG SUCH EXPERTS AS SAFE
AND EFFECTIVE FOR THEIR INTENDED USES."  THE COMMISSIONER ALSO HELD
THAT LUTREXIN IS NOT EXEMPT UNDER ^ 107 (C) (4) BECAUSE ITS NDA, WHICH
HAD BECOME EFFECTIVE IN 1953, HAD NOT BEEN WITHDRAWN PRIOR TO THE
ENACTMENT OF THE 1962 AMENDMENTS AND THUS WAS "COVERED BY AN EFFECTIVE
APPLICATION" WITHIN THE MEANING OF ^ 107(C) (4) (C).  THE COURT OF
APPEALS AFFIRMED THE COMMISSIONER'S RULING THAT LUTREXIN IS NOT EXEMPT
UNDER ^ 107(C) (4).  IT DID NOT D SCUSS HIS HOLDING THAT LUTREXIN
CURRENTLY IS A "NEW DRUG."  ALTHOUGH WE AGREE THAT THE COMMISSIONER
PROPERLY RULED THAT LUTREXIN DOES NOT COME WITHIN ^ 107(C) (4), WE
CONCLUDE THAT THE COMMISSIONER'S ORDER WITH RESPECT TO LUTREXIN'S "NEW
DRUG" STATUS MUST BE VACATED. 

THE THRUST OF ^ 201(P) IS BOTH QUALITATIVE AND QUANTITATIVE.  THE
ACT, HOWVER, NOWHERE DEFINES WHAT CONSTITUTES "GENERAL RECOGNITION"
AMONG EXPERTS.  HYNSON CONTENDS THAT THE "LACK OF SUBSTANTIAL EVIDENCE"
IS APPLICABLE ONLY TO PROOF OF THE ACTUAL EFFECTIVENESS OF DRUGS THAT
FALL WITHIN THE DEFINITION OF A NEW DRUG AND NOT TO THE INITIAL
DETERMINATION UNDER ^ 201(P) WHETHER A DRUG IS "GENERALLY RECOGNIZED"
AS EFFECTIVE.  IT WOULD RELY SOLELY ON THE TESTIMONY OF PHYSICIANS AND
THE EXTANT LITERATURE, EVIDENCE THAT HAS BEEN CHARACTERIZED AS
"ANECDOTAL."  WE AGREE WITH FDA, HOWEVER, THAT THE STATUTORY SCHEME AND
OVERRIDING PURPOSE OF THE 1962 AMENDMENTS COMPEL THE CONCLUSION THAT
THE HURLDE OF "GENERAL RECOGNITION" OF EFFECTIVENESS REQUIRES AS LEAST
"SUBSTANTIAL EVIDENCE" OF EFFECTIVENESS FOR APPROVAL OF AN NDA.  IN THE
ABSENCE OF ANY EVIDENCE OF ADEQUATE AND WELL-CONTROLLED INVESTIGATION
SUPPORTING THE EFFICACY OF LUTREXIN, A FORTIORI LUTREXIN WOULD BE A
"NEW DRUG" SUBJECT TO THE PROVISIONS OF THE ACT.  /23/     AS NOTED,
THE 1962 AMENDMENTS FOR THE FIRST TIME GAVE FDA POWER TO SCRUTINIZE AND
EVALUATE DRUGS FOR EFFECTIVENESS AS WELL AS SAFETY.  THE ACT REQUIRES
THE COMMISSIONER TO DISAPPROVE ANY APPLICATION WHEN THERE IS A LACK OF
"SUBSTANTIAL EVIDENCE" THAT THE APPLICANT'S DRUG IS EFFECTIVE.  ^
505(D), 21 U.S.C. ^ 355(D).  SIMILARLY, HE MAY WITHDRAW APPROVAL FOR
ANY DRUG IF HE SUBSEQUENTLY DETERMINES THAT THERE IS A LACK OF SUCH
EVIDENCE.  ^ 505(E), 21 U.S.C. ^ 355(E).  EVIDENCE MAY BE ACCEPTED ONLY
IF IT CONSISTS OF "ADEQUATE AND WELL-CONTROLLED INVESTIGATIONS,
INCLUDING CLINICAL INVESTIGATIONS, BY EXPERTS QUALIFIED BY SCIENTIFIC
TRAINING AND EXPERIENCE TO EVALUATE THE EFFECTIVENESS OF THE DRUG
INVOLVED . . ."  ^ 505(D), 21 U.S.C. ^ 355 (D).  THE LEGISLATIVE
HISTORY OF THE ACT INDICATES THAT THE TEST WAS TO BE A RIGOROUS ONE. 
THE "SUBSTANTIAL EVIDENCE" REQUIREMENT REFLECTS THE CONCLUSION OF
CONGRESS, BASED UPON HEARINGS, /24/  THAT CLINICAL IMPRESSIONS OF
PRACTICING PHYSICIANS AND POORLY CONTROLLED EXPERIMENTS DO NOT
CONSTITUTE AN ADEQUATE BASIS FOR ESTABLISHING EFFICACY.  THIS POLICY
UNDER LIES THE REGULATIONS DEFINING THE CONTOURS OF "SUBSTANTIAL
EVIDENCE":  "UNCONTROLLED STUDIES OR PARTIALLY CONTROLLED STUDIES ARE
NOT ACCEPTABLE AS THE SOLE BASIS FOR THE APPROVAL OF CLAIMS OF
EFFECTIVENESS.  SUCH STUDIES, CAREFULLY CONDUCTED AND DOCUMENTED, MAY
PROVIDE CORROBORATIVE SUPPORT OF WELL-CONTROLLED STUDIES . . . ISOLATED
CASE REPORTS, RANDOM EXPERIENCE, AND REPORTS LACKING THE DETAILS WHICH
PERMIT SCIENTIFIC EVALUATION WILL NOT BE CONSIDERED."  21 CFR ^ 130.12
(A) (5) (II) (C). 

THESE EFFICACY REQUIREMENTS WERE NOT DESIGNED TO BE PROSPECTIVE
ONLY.  CLEARLY, AFTER THE INITIAL TWO-YEAR MORATORIUM ON EXISTING
DRUGS, FDA HAS THE POWER TO WITHDRAW AN APPLICATION WHICH BECAME
EFFECTIVE PRIOR TO THE ADOPTION OF THE 1962 AMENDMENTS, IF THE
APPLICANT HAS NOT PROVIDED "SUBSTANTIAL EVIDENCE" OF THE DRUG'S
EFFICACY.  THE ACT PLAINLY CONTEMPLATES THAT SUCH DRUGS WILL BE
EVALUATED ON THE BASIS OF ADEQUATE AND WELL-CONTROLLED INVESTIGATIONS. 
HYNSON WOULD HAVE US HOLD THAT WITHDRAWAL PROCEEDINGS CAN BE THUARTED
BY A SHOWING OF GENERAL RECOGNITION OF EFFECTIVENESS BASED MERELY ON
EXPERT TESTMONY AND REPORTS WITH RESPECT TO INVESTIGATIONS AND CLINICAL
OBSERVATION REGARDLESS OF THE CONTROLS USE.  BUT, WE CANNOT CONSTRUE ^
201(P) TO DEPRIVE FDA OF JURISDICTION OVER A DRUG WHICH, IF SUBJECT TO
FDA REGULATION, COULD NOT BE MARKETED BECAUSE IT HAD NOT PASSED THE
"SUBSTANTIAL EVIDENCE" TEST.  TO DO SO "WOULD BE TO IMPUTE TO CONGRESS
A PURPOSE TO PARALYZE WITH ONE HAND WHAT IT SOUGHT TO PROMOTE WITH THE
OTHER."  CLARK V. UEBERSEE FINANZ-KORP., 332 U.S. 480, 489. 

MOREOVER, THE INTERPRETATION OF ^ 201(P) URGED BY HYNSON IS NOT
CONSISTENT WITH THE STATUTORY SCHEME AS IT OPERATES ON A PURELY
PROSPECTIVE BASIS.  UNDER SUBSECTION (2), A DRUG CANNOT TRANSCEND "NEW
DRUG" STATUS UNTIL IT HAS BEEN USED "TO A MATERIAL EXTENT OR FOR A
MATERIAL TIME."  YET, A DRUG CANNOT BE MARKETED LAWFULLY BEFORE AN NDA
HAS BEEN APPROVED BY THE COMMISSIONER ON THE BASIS OF "SUBSTANTIAL
EVIDENCE."  AS THE SOLICITOR GENERAL ARGUES, "THE ACT IS DESIGNED SO
THAT DRUGS ON THE MARKET, UNLESS EXEMPT, WILL HAVE MUSTERED THE
REQUISITE SCIENTIFICALLY RELIABLE EVIDENCE OF EFFECTIVENESS LONG BEFORE
THEY ARE IN A POSITION TO DROP OUT OF ACTIVE REGULATION BY CEASING TO
BE A 'NEW DRUG.'" 

IT IS WELL ESTABLISHED THAT OUR TASK IN INTERPRETING SEPARATE
PROVISIONS OF A SINGLE ACT IS TO GIVE THE ACT "THE MOST HARMONIOUS,
COMPREHENSIVE MEANING POSSIBLE" IN LIGHT OF THE LEGISLATIVE POLICY AND
PURPOSE.  332 U.S., AT 488, SEE UNITED STATES V. BACTO-UNIDISK, 394
U.S. 784, 798.  WE ACCORDINGLY HAVE CONCLUDED THAT A DRUG CAN BE
"GENERALLY RECOGNIZED" BY EXPERTS AS EFFECTIVE FOR INTENDED USE WITHIN
THE MEANING OF THE ACT ONLY WHEN THAT EXPERT CONSENSUS IS FOUNDED UPON
"SUBSTANTIAL EVIDENCE" AS DEFINED IN ^ 505(D).  WE HAVE HELD IN NO. 72
394, HOWEVER, THAT THE COMMISSIONER WAS NOT JUSTIFIED IN WITHDRAWING
HYNSON'S NDA WITHOUT A PRIOR HEARING ON WHETHER HYSON HAD SUBMITTED
"SUBSTANTIAL EVIDENCE" OF LUTREXIN'S EFFECTIVENESS.  CONSEQUENTLY, ANY
RULING AS TO LUTREXIN'S "NEW DRUG" STATUS IS PREMATURE AND MUST AWAIT
THE OUTCOME OF THIS HEARING. 

FINALLY, WE CANNOT AGREE WITH HYNSON THAT LUTREXIN IS EXEMPT FROM
THE PROVISIONS OF THE ACT BY VIRTUE OF ^ 107(C) (4) OF THE 1962
AMENDMENTS.  THAT SECTION PROVIDES THAT NO DRUG WILL BE TREATED AS A
"NEW DRUG" IF, ON THE DAY PRECEDING THE ADOPTION OF THE AMENDMENTS, THE
DRUG "(A) WAS COMMERCIALLY USED OR SOLD IN THE UNITED STATES, (B) WAS
NOT A NEW DRUG AS DEFINED BY SECTION 201(P) OF THE BASIC ACT AS THEN IN
FORCE, AND (C) WAS NOT COVERED BY AN EFFECTIVE APPLICATION UNDER
SOLELY ON WHETHER LUTREXIN WAS "COVERED" BY AN EFFECTIVE NDA
IMMEDIATELY PRIOR TO THE ADOPTION OF THE 1962 AMENDMENTS.  HYNSON
ARGUES THAT WHEN LUTREXIN BECAME GENERALLY RECOGNIZED AS SAFE AND WAS
NO LONGER A "NEW DRUG," ITS NDA CEASED TO BE EFFECTIVE.  /25/ 

THAT ARGUMENT DRAWS NO STATUTORY SUPPORT.  THE 1938 ACT DID NOT
PROVIDE ANY MECHANISM OTHER THAN THE COMMISSIONER'S SUSPENSION
AUTHORITY UNDER ^ 505(E), WHEREBY AN NDA ONCE EFFECTIVE COULD CEASE TO
BE EFFECTIVE.  INDEED, ^ 505(E) LEADS TO THE CONCLUSION THAT AN NDA
REMAINES EFFECTIVE UNLESS IT IS SUSPENDED.  THAT SECTION EMPOWERS FDA
TO WITHDRAW APPROVAL OF AN NDA WHENEVER NEW EVIDENCE COMES TO LIGHT
SUGGESTING THAT THE DRUG HAS BECOME UNSAFE, WHETHER OR NOT THE DRUG WAS
GENERALLY RECOGNIZED AS SAFE IN THE INTERIM. 

MOREOVER, HYNSON'S ARGUMENT, AS THE COURT OF APPEALS RECOGNIZED,
WOULD RENDER CLAUSE (C) SUPERFLUOUS.  UNDER HYNSON'S REASONING, ANY
DRUG THAT COULD SATISFY CLAUSE (B) -- I.E., ANY DRUG THAT HAD BECOME
GENERALLY RECOGNIZED AS SAFE -- AUTOMATICALLY WOULD SATISFY CLAUSE
(C).  THIS CONSTRUCTION, THEREFORE, OFFENDS THE WELL-SETTLED RULE OF
STATUTORY CONSTRUCTION THAT ALL PARTS OF A STATURE, IF AT ALL POSSIBLE,
ARE TO BE GIVEN EFFECT.  SEE, E. G., JARECKI V. G. D. SEARLE & CO., 367
U.S. 303, 307; GINSBERG & SONS V. POPKIN, 285 U.S. 204, 208.  THE
INTERPRETATION ACCORDED BY THE COMMISSIONER AND THE COURT OF APPEALS,
ON THE OTHER HAND, DOES GIVE CLAUSE (C) OPERATIVE EFFECT.  IT WOULD
LIMIT THE EXEMPTION TO DRUGS, GENERALLY RECOGNIZED AS SAFE, WHICH HAD
NOT COME UNDER THE BLANKET OF AN EFFECTIVE NDA.  THIS INTERPRETATION
ACCORDS WITH THE LEGISLATIVE HISTORY WHICH SUGGESTS THAT THE EXEMPTION
IS AFFORDED ONLY FOR DRUGS THAT NEVER HAD BEEN SUBJECT TO NEW DRUG
REGULATION.  /26/ 

EXCEPT FOR THE MODIFICATION WITH RESPECT TO LUTREXIN'S "NEW DRUG"
STATUS, THE JUDGMENT OF THE COURT OF APPEALS IS

              AFFIRMED. 

/1/  DRUG AMENDMENTS OF 1962 (HARRIS-KEFAUVER ACT), 76 STAT. 780,
AMENDING 21 U.S.C. ^ 301 ET SEQ. 

/2/  THE ACT ORIGINALLY PROVIDED FOR FILING APPLICATIONS WITH THE
SECRETARY OF AGRICULTURE, BUT HIS FUNCTIONS WERE ASSIGNED TO FDA.  FDA
IS NOW PART OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW),
AND THE SECRETARY OF NEW HAS DELEGATED HIS RESPONSIBILITIES UNDER THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT TO THE COMMISSIONER OF FOOD AND
DRUGS.  21 CFR ^ 2.120. 

/3/  "SUBSTANTIAL EVIDENCE" WAS DEFINED TO MEAN "EVIDENCE CONSISTING
OF ADEQUATE AND WELL-CONTROLLED INVESTIGATIONS, INCLUDING CLINICAL
INVESTIGATIONS, BY EXPERTS QUALIFIED BY SCIENTIFIC TRAINING AND
EXPERIENCE TO EVALUATE THE EFFECTIVENESS OF THE DRUG INVOLVED, ON THE
BASIS OF WHICH IT COULD FAIRLY AND RESPONSIBLY BE CONCLUDED BY SUCH
EXPERTS THAT THE DRUG WILL HAVE THE EFFECT IT PURPORTS OR IS
REPRESENTED TO HAVE . . ."  21 U.S.C. ^ 355(D). 

/4/  DRUG AMENDMENTS OF 1962, ^ ^ 107(C) (2) AND (C) (3) (B), 76
STAT. 788, NOTE FOLLOWING 21 U.S.C. ^ 321. 

/5/  ID., ^ 107(C) (4). 

/6/  31 FED. REG. 9426. 

/7/  FDA HAS RECENTLY ADOPTED A REGULATION DECLARING THE MANNER IN
WHICH DRUG EFFICACY STUDY IMPLEMENTATION NOTICES AND NOTICES OF
OPPORTUNITY FOR HEARING APPLY TO IDENTICAL, RELATED, AND SIMILAR
DRUGS.  ANY PERSON WITH AN INTEREST IN SUCH DRUGS IS PROVIDED AN
OPPORTUNITY FOR HEARING ON ANY PROPOSED WITHDRAWAL OF NDA APPROVAL FOR
THE BASIC OR PIONEER DRUG.  37 FED. REG. 23185, ADDING ^ 130.40 TO 21
CFR. 

/8/  35 FED. REG. 7251, AMENDING 21 CFR ^^ 130.12(A) (5) AND
130.14. 

/9/  SECTION 505(E) AS AMENDED, 21 U.S.C. ^ 355(E), PROVIDES IN
RELEVANT PART: 

"THE SECRETARY SHALL, AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING
TO THE APPLICANT, WITHDRAW APPROVAL OF AN APPLICATION WITH RESPECT TO
ANY DRUG UNDER THIS SECTION IF THE SECRETARY FINDS . . .(3) ON THE
BASIS OF NEW INFORMATION BEFORE HIM WITH RESPECT TO SUCH DRUG,
EVALUATED TOGETHER WITH THE EVIDENCE AVAILABLE TO HIM WHEN THE
APPLICATION WAS APPROVED, THAT THERE IS A LACK OF SUBSTANTIAL EVIDENCE
THAT THE DRUG WILL HAVE THE EFFECT IT PURPORTS OR IS REPRESENTED TO
HAVE UNDER THE CONDITIONS OF USE PRESCRIBED, RECOMMENDED, OR SUGGESTED
IN THE LABELING THEREOF . . ." 

/10/  SEE N. 3, SUPRA. 

/11/  TITLE 21 CFR ^ 130.12(A) (5) AS AMENDED, 35 FED. REG. 7251, IS
SET FORTH IN RELEVANT PART IN AN APPENDIX TO THIS OPINION. 

/12/  SUBJECTS MUST BE CHOSEN SO THAT THEY ARE "SUITABLE FOR THE
PURPOSES OF THE STUDY,"  ASSIGNED TO TEST GROUPS IN SUCH A WAY AS TO
MINIMIZE BIAS, AND COMPARABLE IN TERMS OF "PERTINENT VARIABLES, SUCH AS
AGE, SEX, SEVERITY, OR DURATION OF DISEASE, AND USE OF DRUGS OTHER THAN
THE TEST DRUG."  21 CFR ^ 130.12(A) (5) (II) (A) (2). 

/13/  UPJOHN CO. V. FINCH, 422 F.2D 944 (CA6); PHARMACEUTICAL
MANUFACTURERS ASSN. V. RICHARDSON, 318 F. SUPP. 301 (DEL.).  FDA WAS
ENJOINED FROM ENFORCING THE REGULATIONS AS ORIGINALLY ISSUED ON
SEPTEMBER 19, 1969, 34 FED. REG. 14596, ON THE GROUNDS THAT FDA HAD NOT
COMPLIED WITH THE NOTICE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE
ACT.  PHARMACEUTICAL MANUFACTURERS ASSN. V. FINCH, 307 F. SUPP. 858
(DEL.).  THE REGULATIONS WERE REISSUED IN THEIR CURRENT FORM ON MAY 8,
1970.  35 FED. REG. 7251. 

/14/  SEE HEARINGS ON S. 1552 BEFORE THE SUBCOMMITTEE ON ANTITRUST
AND MONOPOLY OF THE SENATE COMMITTEE ON THE JUDICIARY, 87TH CONG., 1ST
SESS., PT. L, PP. 195, 282, 411 - 412.  MUCH OF THIS ASPECT OF THE
LEGISLATIVE BACKGROUND OF THE 1962 ACT IS REVIEWED IN ENLIGHTENING
DETAIL BY JUDGE LATCHUM IN PHARMACEUTICAL MANUFACTURERS ASSN. V.
RICHARDSON, 318 F. SUPP., AT 306 ET SEQ. 

/15/  S. REP. NO. 1744, 87TH CONG., 2D SESS., PT. 2, P. 1. 

/16/  ID., AT 6. 

/17/ THIS APPLIES, OF COURSE, ONLY TO THOSE REGULATIONS THAT ARE
PRECISE.  FOR EXAMPLE, THE PLAN OR PROTOCOL FOR A STUDY MUST INCLUDE
"(A) SUMMARY OF THE METHODS OF ANALYSIS AND AN EVALUATION OF DATA
DERIVED FROM THE STUDY, INCLUDING ANY APPROPRIATE STATISTICAL
METHODS."  21 CFR ^ 130.12(A) (5) (II) (A) (5).  A MERE READING OF THE
STUDY SUBMITTED WILL INDICATE WHETHER THE STUDY IS TOTALLY DEFICIENT IN
THIS REGARD.  SOME OF THE REGULATIONS, HOWEVER, ARE NOT PRECISE, AS
THEY CALL FOR THE EXERCISE OF DISCRETION OR SUBJECTIVE JUDGMENT IN
DETERMINING WHETHER A STUDY IS ADEQUATE AND WELL CONTROLLED.  FOR
EXAMPLE, ^ 130.12(A) (5) (II) (2) (I) REQUIRES THAT THE PLAN OR
PROTOCOL FOR THE STUDY INCLUDE A METHOD OF SELECTION OF THE SUBJECTS
THAT PROVIDE "ADEQUATE ASSURANCE THAT THEY ARE SUITABLE FOR THE
PURPOSES OF THE STUDY."  (EMPHASIS ADDED.)  THE QUALITATIVE STANDARDS
"ADEQUATE" AND "SUITABLE" DO NOT LEND THEMSELVES TO CLEAR-CUT
DEFINITION AND IT MAY NOT BE POSSIBLE TO TELL FROM THE FACE OF A STUDY
WHETHER THE STANDARDS HAVE BEEN MET.  THUS, IT MIGHT NOT BE PROPER TO
DENY A HEARING ON THE GROUND THAT THE STUDY DID NOT COMPLY WITH THIS
REGULATION. 

/18/  UNDER THE RULES OF CIVIL PROCEDURE THE PARTY MOVING FOR
SUMMARY JUDGMENT HAS THE BURDEN OF SHOWING THE ABSENCE OF A GENUINE
ISSUE AS TO ANY MATERIAL FACT.  ADICKES V. KRESS & CO., 398 U.S. 144,
157. 

/19/  UNDER THE ADMINISTRATIVE PROCEDURE ACT, A COURT REVIEWS AGENCY
FINDINGS TO DETERMINE WHETHER THEY ARE SUPPORTED BY SUBSTANTIAL
EVIDENCE ONLY IN A CASE SUBJECT TO THE HEARING PROVISIONS OF 5 U.S.C.
^^ 556 AND 557 OR "OTHERWISE REVIEWED ON THE RECORD OF AN AGENCY
HEARING PROVIDED BY STATUTE . . ."  5 U.S.C. ^ 706(2) (E).  THIS IS NOT
SUCH A CASE.  THE QUESTION WITH WHICH WE ARE CONCERNED INVOLVES THE
INITIAL AGENCY DETERMINATION WHETHER A HEARING IS REQUIRED BY STATUTE. 
SEE PFIZER, INC. V. RICHARDSON, 434 F.2D 536, 546 - 547 (CA2). 

/20/  1939 ANNUAL REPORT FDA; 1941 ANNUAL REPORT FDA; ANNUAL REPORTS
FEDERAL SECURITY AGENCY (1938 - 1952); ANNUAL REPORTS HEW (1953 -
1962). 

/21/  THAT SECTION PROVIDES: 

"THE TERM 'NEW DRUG' MEANS -- 

"(1) ANY DRUG (EXCEPT A NEW ANIMAL DRUG OR AN ANIMAL FEED BEARING OR
CONTAINING A NEW ANIMAL DRUG) THE COMPOSITION OF WHICH IS SUCH THAT
SUCH DRUG IS NOT GENERALLY RECOGNIZED, AMONG EXPERTS QUALIFIED BY
SCIENTIFIC TRAINING AND EXPERIENCE TO EVALUATE THE SAFETY AND
EFFECTIVENESS OF DRUGS, AS SAFE AND EFFECTIVE FOR USE UNDER THE
CONDITIONS PRESCRIBED, RECOMMENDED, OR SUGGESTED IN THE LABELING
THEREOF, EXCEPT THAT SUCH A DRUG NOT SO RECOGNIZED SHALL NOT BE DEEMED
TO BE A 'NEW DRUG' IF AT ANY TIME PRIOR TO THE ENACTMENT OF THIS
CHAPTER IT WAS SUBJECT TO THE FOOD AND DRUGS ACT OF JUNE 30, 1906, AS
AMENDED, AND IF AT SUCH TIME ITS LABELING CONTAINED THE SAME
REPRESENTATIONS CONCERNING THE CONDITIONS OF ITS USE; OR 

"(2) ANY DRUG (EXCEPT A NEW ANIMAL DRUG OR AN ANIMAL FEED BEARING OR
CONTAINING A NEW ANIMAL DRUG) THE COMPOSITION OF WHICH IS SUCH THAT
SUCH DRUG, AS A RESULT OF INVESTIGATIONS TO DETERMINE ITS SAFETY AND
EFFECTIVENESS FOR USE UNDER SUCH CONDITIONS, HAS BECOME SO RECOGNIZED,
BUT WHICH HAS NOT, OTHERWISE THAN IN SUCH INVESTIGATIONS, BEEN USED TO
A MATERIAL EXTENT OR FOR A MATERIAL TIME UNDER SUCH CONDITIONS." 
/22/  THAT SECTION PROVIDES 

"IN THE CASE OF ANY DRUG WHICH, ON THE DAY IMMEDIATELY PRECEDING THE
ENACTMENT DATE, (A) WAS COMMERCIALLY USED OR SOLD IN THE UNITED STATES,
(B) WAS NOT A NEW DRUG AS DEFINED BY SECTION 201(P) OF THE BASIC ACT AS
THEN IN FORCE, AND (C) WAS NOT COVERED BY AN EFFECTIVE APPLICATION
UNDER SECTION 505 OF THAT ACT, THE AMENDMENTS TO SECTION 201(P) MADE BY
THIS ACT SHALL NOT APPLY TO SUCH DRUG WHEN INTENDED SOELY FOR USE UNDER
CONDITIONS PRESCRIBED, RECOMMENDED, OR SUGGESTED IN LABELING WITH
RESPECT TO SUCH DRUG ON THAT DAY." 

/23/  IT ALSO FOLLOWS THAT IF HYNSON WERE NOT ENTITLED TO A HEARING
UNDER ^ 505(E), IT WOULD NOT BE ENTITLED TO A HEARING ON ITS CLAIM THAT
LUTREXIN IS NOT A "NEW DRUG." 

/24/  SEE HEARINGS, SUPRA, N. 14. 

/25/  HYNSON ALSO ARGUES THAT LUTREXIN IS EXEMPT BY OPERATION OF ^
107(C) (2), WHICH PROVIDES: 

"AN APPLICATION FILED PURSUANT TO SECTION 505(B) OF THE BASIC ACT
WHICH WAS 'EFFECTIVE' WITHIN THE MEANING OF THAT ACT ON THE DAY
IMMEDIATELY PRECEDING THE ENACTMENT DATE SHALL BE DEEMED, AS OF THE
ENACTMENT DATE, TO BE AN APPLICATION 'APPROVED' BY THE SECRETARY WITHIN
THE MEANING OF THE BASIC ACT AS AMENDED BY THIS ACT."  HYNSON CONTENDS
THAT LUTREXIN, GENERALLY RECOGNIZED AS SAFE PRIOR TO 1962, WAS NOT A
"NEW DRUG" UNDER APPLICABLE STANDARDS BEFORE THE 1962 AMENDMENTS. 
THUS, THE ARGUMENT GOES, ITS NDA HAD CEASED TO BE EFFECTIVE AND COULD
NOT BE DEEMED "APPROVED" UNDER ^ 107(C) (2).  CONSEQUENTLY, THERE WAS
NO APPROVAL THAT COULD BE WITHDRAWN IN ADMINISTRATIVE PROCEEDINGS
PURSUANT TO ^ 505(E). 

THIS ARGUMENT SHARES A COMMON THREAD WITH THE ARGUMENT UNDER ^
107(C) (4) -- THAT THE NDA FOR LUTREXIN HAD CEASED TO BE EFFECTIVE. 
THE ARGUMENT IS NO MORE PERSUASIVE UNDER ^ 107(C) (2) THAN ^ 107(C)
(4).  IN ADDITION, THE CONSTRUCTION OFFERED BY HYNSON WOULD UPSET THE
CAREFULLY DRAWN TRANSITIONARY PROVISIONS OF ^^ 107(C) (2) AND (C) (3). 
SINCE THE COMMISSIONER NOW MUST AFFIRMATIVELY APPROVE OR DISAPPROVE ALL
NDA'S, ^ 107(C) (2) WAS ENACTED TO REMOVE THE ADMINISTRATIVE BURDEN OF
APPROVING EACH AND EVERY NDA THEN EFFECTIVE.  IT ALSO PROTECTED THE
MARKET AUTHORITY OF ALL MANUFACTURER WHOSE DRUG HAD BECOME GENERALLY
RECOGNIZED AS SAFE COULD HAVE CONTINUED TO MARKET THE DRUG IF IT WAS
NOT ALSO GENERALLY RECOGNIZED AS EFFECTIVE. 

/26/  SEE S. REP. NO. 1744, 87TH CONG., 2D SESS., PT. 2, P. 8; H. R.
REP. NO. 2464, 87TH CONG., 2D SESS., 12; H. R. REP. NO. 2526, 87TH
CONG., 2D SESS., 22 - 23.  HYNSON CONTENDS THAT THE CONSTRUCTION
AFFORDED BY FDA RENDERS THE EXEMPTION NUGATORY AND DEFEATS THE
LEGISLATIVE PURPOSE.  THE PROVISION, HOWEVER, DOES EXEMPT DRUGS THAT,
AS A GENERIC CLASS, WERE NEVER SUBJECT TO EW DRUG REGULATION.  THESE
CONSIST PRIMARILY OF OVER-THE-COUNTER DRUG WHICH, ALTHOUGH THEY WERE
NOT "GRANDFATHERED" UNDER THE 1938 ACT, WERE NOT SUBJECT TO NEW DRUG
REGULATION BECAUSE OF UNIVERSAL RECOGNITION OF THE SAFETY OF THEIR OLD,
ESTABLISHED INGREDIENTS AT THE TIME THEY CAME ON THE MARKET. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES.  MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THESE
CASES. 

        APPENDIX TO OPINION OF THE COURT 

TITLE 21 CFR ^ 130.12(A) (5) PROVIDES: 

(II) THE FOLLOWING PRINCIPLES HAVE BEEN DEVELOPED OVER A PERIOD OF
YEARS AND ARE RECOGNIZED BY THE SCIENTIFIC COMMUNITY AS THE ESSENTIALS
OF ADEQUATE AND WELL-CONTROLLED CLINICAL INVESTIGATIONS.  THEY PROVIDE
THE BASIS FOR THE DETERMINATION WHETHER THERE IS "SUBSTANTIAL EVIDENCE"
TO SUPPORT THE CLAIMS OF EFFECTIVENESS FOR "NEW DRUGS" AND ANTIBIOTIC
DRUGS. 

(A) THE PLAN OR PROTOCOL FOR THE STUDY AND THE REPORT OF THE RESULTS
OF THE EFFECTIVENESS STUDY MUST INCLUDE THE FOLLOWING: 

(1) A CLEAR STATEMENT OF THE OBJECTIVES OF THE STUDY, 

(2) A METHOD OF SELECTION OF THE SUBJECTS THAT -- (I) PROVIDES
ADEQUATE ASSURANCE THAT THEY ARE SUITABLE FOR THE PURPOSES OF THE
STUDY, DIAGNOSTIC CRITERIA OF THE CONDITION TO BE TREATED OR DIAGNOSED,
CONFIRMATORY LABORATORY TESTS WHERE APPROPRIATE, AND, IN THE CASE OF
PROPHYLACTIC AGENTS, EVIDENCE OF SUSCEPTIBILITY AND EXPOSURE TO THE
CONDITION AGAINST WHICH PROPHYLAXIS IS DESIRED. 

(II) ASSIGNS THE SUBJECTS TO TEST GROUPS IN SUCH A WAY AS TO
MINIMIZE BIAS. 

(III) ASSURES COMPARABILITY IN TEST AND CONTROL GROUPS OF PERTINENT
VARIABLES, SUCH AS AGE, SEX, SEVERITY, OR DURATION OF DISEASE, AND USE
OF DRUGS OTHER THAN THE TEST DRUG. 

(3) EXPLAINS THE METHODS OF OBSERVATION AND RECORDING OF RESULTS,
INCLUDING THE VARIABLES MEASURED, QUANTITATION, ASSESSMENT OF ANY
SUBJECT'S RESPONSE, AND STEPS TAKEN TO MINIMIZE BIAS ON THE PART OF THE
SUBJECT AND OBSERVER. 

(4) PROVIDES A COMPARISON OF THE RESULTS OF TREATMENT OR DIAGNOSIS
WITH A CONTROL IN SUCH A FASHION AS TO PERMIT QUANTITATIVE EVALUATION. 
THE PRECISE NATURE OF THE CONTROL MUST BE STATED AND AN EXPLANATION
GIVEN OF THE METHODS USED TO MINIMIZE BIAS ON THE PART OF THE OBSERVERS
AND THE ANALYSTS OF THE DATA.  LEVEL AND METHODS OF "BLINDING," IF
USED, ARE TO BE DOCUMENTED.  GENERALLY, FOUR TYPES OF COMPARISON ARE
RECOGNIZED: 

(I) NO TREATMENT: WHERE OBJECTIVE MEASUREMENTS OF EFFECTIVENESS ARE
AVAILABLE AND PLACEBO EFFECT IS NEGLIGIBLE, COMPARISON OF THE OBJECTIVE
RESULTS IN COMPARABLE GROUPS OF TREATED AND UNTREATED PATIENTS. 

(II) PLACEBO CONTROL:  COMPARISON OF THE RESULTS OF USE OF THE NEW
DRUG ENTITY WITH AN INACTIVE PREPARATION DESIGNED TO RESEMBLE THE TEST
DRUG AS FAR AS POSSIBLE. 

(III) ACTIVE TREATMENT CONTROL:  AN EFFECTIVE REGIMEN OF THERAPY MAY
BE USED FOR COMPARISON, E. G., WHERE THE CONDITION TREATED IS SUCH THAT
NO TREATMENT OR ADMINISTRATION OF A PLACEBO WOULD BE CONTRARY TO THE
INTEREST OF THE PATIENT. 

(IV) HISTORICAL CONTROL:  IN CERTAIN CIRCUMSTANCES, SUCH AS THOSE
INVOLVING DISEASES WITH HIGH AND PREDICTABLE MORTALITY (ACUTE LEUKEMIA
OF CHILDHOOD), WITH SIGNS AND SYMPTOMS OF PREDICTABLE DURATION OR
SEVERITY (FEVER IN CERTAIN INFECTIONS), OR IN CASE OF PROPHYLAXIS,
WHERE MORBIDTIY IS PREDICTABLE, THE RESULTS OF USE OF A NEW DRUG ENTITY
MAY BE COMPARED QUANTITATIVELY WITH PRIOR EXPERIENCE HISTORICALLY
DERIVED FROM THE ADEQUATELY DOCUMENTED NATURAL HISTORY OF THE DISEASE
OR CONDITION IN COMPARABLE PATIENTS OR POPULATIONS WITH NO TREATMENT OR
WITH A REGIMEN (THERAPUETIC, DIAGNOSTIC, PROPHYLACTIC) THE
EFFECTIVENESS OF WHICH IS ESTABLISHED. 

(5) A SUMMARY OF THE METHODS OF ANALYSIS AND AN EVALUATION OF DATA
DERIVED FROM THE STUDY, INCLUDING ANY APPROPRIATE STATISTICAL METHODS. 
PROVIDED, HOWEVER, THAT ANY OF THE ABOVE CRITERIA MAY BE WAIVED IN
WHOLE OR IN PART, EITHER PRIOR TO THE INVESTIGATION OR IN THE
EVALUATION OF A COMPLETED STUDY, BY THE DIRECTOR OF THE BUREAU OF DRUGS
WITH RESPECT TO A SPECIFIC CLINICAL INVESTIGATION; A PETITION FOR SUCH
A WAIVER MAY BE FILED BY AN PERSON WHO WOULD BE ADVERSELY AFFECTED BY
THE APPLICATION OF THE CRITERIA TO A PARTICULAR CLINICAL INVESTIGATION;
THE PETITION SHOULD SHOW THAT SOME OR ALL OF THE CRITERIA ARE NOT
REASONABLY APPLICABLE TO THE INVESTIGATION AND THAT ALTERNATIVE
PROCEDURES CAN BE, OR HAVE BEEN, FOLLOWED, THE RESULTS OF WHICH WILL OR
HAVE YIELDED DATA THAT CAN AND SHOULD BE ACCEPTED AS SUBSTANTIAL
EVIDENCE OF THE DRUG'S EFFECTIVENESS.  A PETITION FOR A WAIVER SHALL
SET FORTH CLEARLY AND CONCISELY THE SPECIFIC PROVISION OR PROVISIONS IN
THE CRITERIA FROM WHICH WAIVER IS SOUGHT, WHY THE CRITERIA ARE NOT
REASONABLY APPLICABLE TO THE PARTICULAR CLINICAL INVESTIGATION, WHAT
ALTERNATIVE PROCEDURES, IF ANY, ARE TO BE, OR HAVE BEEN, EMPLOYED, WHAT
RESULTS HAVE BEEN OBTAINED, AND THE BASIS ON WHICH IT CAN BE, OR HAS
BEEN, CONCLUDED THAT THE CLINICAL INVESTIGATION WILL OR HAS YIELDED
SUBSTANTIAL EVIDENCE OF EFFECTIVENESS, NOTWITHSTANDING NONCONFORMANCE
WITH THE CRITERIA FOR WHICH WAIVER IS REQUESTED. 

(B) FOR SUCH AN INVESTIGATION TO BE CONSIDERED ADEQUATE FOR APPROVAL
OF A NEW DRUG, IT IS REQUIRED THAT THE TEST DRUG BE STANDARDIZED AS TO
IDENTITY, STRENGTH, QUALITY, PURITY, AND DOSAGE FORM TO GIVE
SIGNIFICANCE TO THE RESULTS OF THE INVESTIGATION. 

(C) UNCONTROLLED STUDIES OR PARTIALLY CONTROLLED STUDIES ARE NOT
ACCEPTABLE AS THE SOLE BASIS FOR THE APPROVAL OF CLAIMS OF
EFFECTIVENESS.  SUCH STUDIES, CAREFULLY CONDUCTED AND DOCUMENTED, MAY
PROVIDE CORROBORATIVE SUPPORT OF WELL-CONTROLLED STUDIES REGARDING
EFFICACY AND MAY YIELD VALUABLE DATA REGARDING SAFETY OF THE TEST
DRUG.  SUCH STUDIES WILL BE CONSIDERED ON THEIR MERITS IN THE LIGHT OF
THE PRINCIPLES LISTED HERE, WITH THE EXCEPTION OF THE REQUIREMENT FOR
THE COMPARISON OF THE TREATED SUBJECTS WITH CONTROLS.  ISOLATED CASE
REPORTS, RANDOM EXPERIENCE, AND REPORTS LACKING THE DETAILS WHICH
PERMIT SCIENTIFIC EVALUATION WILL NOT BE CONSIDERED. 

MR. JUSTICE POWELL, CONCURRING IN PART, AND CONCURRING IN THE RESULT
IN PART. 

I CONCUR IN PART II OF THE COURT'S OPINION, WHICH DISPOSES OF THE
ISSUES RAISED BY HYNSON, WESTCOTT & DUNNING, INC., IN ITS CROSS
PETITION (NO. 72 - 414).  AS TO PART I, WHICH ADDRESSES ISSUES RAISED
IN THE PETITION FILED BY THE COMMISSIONER OF FDA (NO. 72 - 394), I
CONCUR ONLY IN THE RESULT AND STATE BRIEFLY THE LIMITED SENSE IN WHICH
I ACCEPT THE COURT'S CONCLUSION. 

INSOFAR AS THE COURT TODAY SUSTAINS THE HOLDING BELOW THAT HYNSON'S
SUBMISSION TO FDA RAISED "A GENUINE AND SUBSTANTIAL ISSUE OF FACT"
REQUIRING A HEARING ON THE ULTIMATE ISSUE OF EFFICACY, 21 CFR ^
130.14(B), I AM IN ACCORD.  HYNSON'S PRESENTATION IN SUPPORT OF THE
EFFICACY OF LUTREXIN CLEARLY JUSTIFIED A HEARING AS TO WHETHER THE DRUG
WAS SUPPORTED BY "ADEQUATE AND WELL-CONTROLLED INVESTIGATIONS," 21
U.S.C. ^ 355(D), EVEN AS THAT TERM IS DEFINED IN THE COMMISSION'S
REGULATIONS.  21 CFR ^ 130.12(A) (5).  FOR THIS REASON I CONCUR IN THE
RESULT REACHED IN THIS CASE.  I CANNOT AGREE ON THIS RECORD, HOWEVER,
WITH ANY IMPLICATIONS OR CONCLUSIONS IN THE COURT'S OPINION TO THE
EFFECT THAT THE REGULATIONS -- AS CONSTRUED AND APPLIED BY THE
COMMISSIONER IN THIS CASE -- ARE EITHER COMPATIBLE WITH THE STATUTORY
SCHEME OR CONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE.  /1/  SUCH
QUESTIONS HAVE NOT BEEN SQUARELY PRESENTED IN THIS CASE AND, IN LIGHT
OF THE COURT'S CONCLUSION THAT HYNSON HAS COMPLIED WITH THE
REGULATIONS, THEIR RESOLUTION IS UNNECESSARY TO THE COURT'S DECISION. 

WERE WE REQUIRED TO REACH THESE ISSUES, THERE MIGHT WELL BE SERIOUS
DOU T WHETHER THE COMMISSIONER'S RIGOROUS THRESHOLD SPECIFICATIONS AS
TO PROOF OF "ADEQUATE AND WELL-CONTROLLED INVESTIGATIONS," COUPLED WITH
HIS RESTRICTIVE SUMMARY JUDGMENT REGULATION, GO BEYOND THE STATUTORY
REQUIREMENTS AND IN EFFECT FRUSTRATE THE CONGRESSIONAL MANDATE FOR A
PREWITHDRAWAL "OPPORTUNITY FOR HEARING."  21 U.S.C. ^ 355(E).  THERE IS
ALSO A GENUINE ISSUE OF PROCEDURAL DUE PROCESS WHERE, AS IN THIS CASE,
THE COMMISSIONER CONSTRUES HIS REGULATIONS TO DENY A HEARING AS TO THE
EFFICACY OF A DRUG ESTABLISHED AND USED BY THE MEDICAL PROFESSION FOR
TWO DECADES, AND WHERE ITS EFFECTIVENESS IS SUPPORTED BY A SIGNIGICANT
VOLUME OF CLINICAL DATA AND THE INFORMED OPINIONS OF EXPERTS WHOSE
QUALIFICATIONS ARE NOT QUESTIONED.  /2/ 

THESE IMPORTANT AND COMPLEX QUESTIONS SHOULD AWAIT DECISION IN
FUTURE CASES IN WHICH THE ISSUES ARE BRIEFED FULLY AND ARE NECESSARY TO
THE COURT'S DECISION. 

/1/  CF. FUENTES V. SHEVIN, 407 U.S. 67, 80 (1972), AND CASES CITED
THEREIN.  I DO NOT QUESTIONS, OF COURSE, THE AUTHORITY OF THE
COMMISSIONER TO ADOPT REASONABLE REGULATIONS CONSISTENT WITH THE
STATUTE AND WHICH DO NOT, AS APPLIED, DEPRIVE PERSONS OF THEIR PROPERTY
WITHOUT THE ELEMENTARY DUE PROCESS OF A FAIR OPPORTUNITY FOR A
HEARING. 

/2/  THERE CAN BE NO DOUBT, BOTH FROM THE LEGISLATIVE HISTORY AND
THE LANGUAGE OF THE 1962 AMENDMENTS TO THE ACT, THAT CONGRESS INTENDED
TO IMPOSE STANDARDS THAT WOULD BAR RELIANCE UPON ANECDOTAL EVIDENCE OR
MERE PROFESSIONS OF BELIEF BY DOCTORS AS DETERMINATIVE OF A DRUG'S
EFFICACY.  BUT IT IS ALSO CLEAR THAT CONGRESS INTENDED TO PROTECT
AGAINST THE ARBITRARY WITHDRAWAL OR WITHHOLDING OF APPROVAL OF A DRUG
WHERE THERE IS "SUBSTANTIAL EVIDENCE" OF ITS EFFECTIVENESS.  TO PROVIDE
PROTECTION AGAINST SUCH ACTION, ESPECIALLY WHEN AUTHORITY IS VESTED IN
AN OFFICIAL WHO ACTS IN AN ADMINISTRATIVE AS WELL AS JUDICIAL CAPACTIY,
THE ACT SPECIFICALLY PROVIDES FOR A HEARING.  THE PUBLIC INTEREST IS
TWOFOLD:  (I) TO REMOVE FROM THE MARKET, IN ACCORDANCE WITH DUE
PROCESS, DRUGS OF NO UTILITY OR EFFECTIVENESS; AND (II) TO RETAIN ON
THE MARKET THOSE DRUGS THAT ARE EFFICACIOUS.  IN AN UNDERSTANDABLE ZEAL
TO REMOVE THE FORMER, AN ADMINISTRATIVE AGENCY MUST NOT OVERLOOK BOTH
THE INTEREST OF THE PUBLIC AND THE RIGHT OF THE PROPRIETOR IN
PROTECTING THE DRUGS THAT ARE USEFUL IN THE PREVENTION, CONTROL, OR
TREATMENT OF ILLNESS. 

DEPUTY SOLICITOR GENERAL FRIEDMAN AND ANDREW L. FREY ARGUED THE
CAUSE FOR PETITIONERS IN NO. 72 - 394 AND RESPONDENTS IN NO. 72 - 414. 
WITH MR. FREY ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL KAUPER, DEPUTY SOLICITOR GENERAL WALLACE, ROBERT B.
NICHOLSON, HOWARD E. SHAPIRO, AND PETER BARTON HUTT. 

EDWARD BROWN WILLIAMS ARGUED THE CAUSE FOR PETITIONER IN NO. 72 -
414 AND RESPONDENT IN NO. 72 - 394.  WITH HIM ON THE BRIEFS WAS JAN
EDWARD WILLIAMS. 
..END :

















CIBA CORP. V. WEINBERGER 412 U.S. 640 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT 

     NO. 72 - 528.  ARGUED APRIL 17, 1973--DECIDED JUNE 18, 1973;
463 F.2D 225, AFFIRMED. 


    PETITIONER MANUFACTURES A DRUG CALLED RITONIC CAPSULES, FOR

  WHICH IT FILED A NEW DRUG APPLICATION (NDA) THAT BECAME EFFECTIVE

  IN 1959, ON THE BASIS OF THE DRUG'S SAFETY.  AFTER THE ENACTMENT

  OF THE 1962 AMENDMENTS TO THE FEDERAL FOOD, DRUG, AND COSMETIC

  ACT, THE FOOD AND DRUG ADMINISTRATION (FDA) WITHDREW APPROVAL OF

  THE NDA ON THE GROUND THAT THERE WAS NO SUBSTANTIAL EVIDENCE THAT

  THE DRUG WAS EFFECTIVE AS CLAIMED, UNDER ^ 505 OF THE ACT. 

  PETITIONER SOUGHT REVIEW OF THE WITHDRAWAL ORDER IN THE COURT OF

  APPEALS FOR THE SECOND CIRCUIT, AS PROVIDED IN ^ 505(H), AND THAT

  COURT AFFIRMED THE ORDER.  PRIOR TO THE ISSUANCE OF THE

  WITHDRAWAL ORDER, PETITIONER SOUGHT DECLARATORY AND INJUNCTIVE

  RELIEF IN THE NEW JERSEY DISTRICT COURT, WHICH GRANTED THE

  GOVERNMENT'S MOTION TO DISMISS THE COMPLAINT FOR LACK OF

  JURISDICTION.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT

  AFFIRMED, HOLDING THAT THE FDA WAS AUTHORIZED TO DECIDE THE

  JURISDICTIONAL QUESTION AS AN INCIDENT OF ITS POWER TO APPROVE OR

  WITHDRAW APPROVAL FOR NDA'S, THAT ITS DECISION WAS REVIEWABLE ON

  DIRECT APPEAL BY A COURT OF APPEALS, AND SINCE THE COURT OF

  APPEALS FOR THE SECOND CIRCUIT HAD RULED AGAINST PETITIONER ON

THAT APPEAL, THE JURISDICTIONAL ISSUE COULD NOT BE RELITIGATED IN

  A SEPARATE SUIT FOR A DECLARATORY JUDGMENT.  HELD: 

      1.  THE FDA HAS JURISDICTION IN AN ADMINISTRATIVE PROCEEDING
TO

  DETERMINE WHETHER A DRUG PRODUCT IS A "NEW DRUG" WITHIN THE

  MEANING OF ^ 201(P) OF THE ACT.  WEINBERGER V. BENTEX

  PHARMACEUTICALS, INC., POST, P. 645.  PP. 643 - 644. 

     2.  WHILE THE ACT PROVIDES FDA WITH SANCTIONS, SUCH AS CIVIL

  INJUNCTION PROCEEDINGS, CRIMINAL PENALTIES, AND IN REM SEIZURE

  AND CONDEMNATION, TO ENFORCE THE PROHIBITION AGAINST SALE IN

  COMMERCE OF ANY ARTICLE IN VIOLATION OF ^ 505, THE ACT DOES NOT

  CREATE A DUAL SYSTEM, ONE ADMINISTRATIVE AND THE OTHER JUDICIAL. 

  P. 644. 

     3.  WHERE PETITIONER HAD AN OPPORTUNITY TO LITIGATE THE "NEW

  DRUG" ISSUE BEFORE THE FDA AND TO RAISE THE ISSUE ON APPEAL TO A

  COURT OF APPEALS, IT MAY NOT RELITIGATE THE ISSUE IN ANOTHER

  PROCEEDING.  P. 644. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED, EXCEPT BRENNAN, J., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE, AND STEWART, J., WHO TOOK NO
PART IN THE DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PEITIONER MANUFACTURES A DRUG CALLED RITONIC CAPSULES /1/  FOR WHICH
IT FILED AN NDA THAT BECAME EFFECTIVE IN 1959.  UNDER THE ACT THEN IN
FORCE, AN NDA FOR A "NEW DRUG" REQUIRED THE MANUFACTURER TO SUBMIT TO
THE FOOD AND DRUG ADMINISTRATION (FDA) ADEQUATE PROOF OF THE DRUG'S
SAFETY.  THIS PARTICULAR NDA BECAME EFFECTIVE ON THE BASIS OF THE
DRUG'S SAFETY.  AS WE HAVE NOTED IN THE COMPANION CASES, THE 1962
AMENDMENTS TO THE FEDERAL FOOD, DRUG, AND COSMETIC ACT OF 1938, 52
STAT. 1040, AS AMENDED, 76 STAT. 780, DIRECTED FDA TO WITHDRAW APPROVAL
FOR NDA'S WHICH BECAME EFFECTIVE PRIOR TO THAT TIME IF, AFTER NOTICE
AND OPPORTUNITY FOR HEARING, IT FOUND A LACK OF "SUBSTANTIAL EVIDENCE"
THAT THE DRUG INVOLVED WAS EFFECTIVE AS CLAIMED IN ITS LABELING.  AND,
AS WE HAVE NOTED, "SUBSTANTIAL EVIDENCE" AS USED IN THE ACT, ^ 505(D)
AND ^ 505(E) (3), 21 U.S.C. ^^ 355(D) AND 355(E) (3) MEANS "ADEQUATE
AND WELL-CONTROLLED INVESTIGATIONS" FROM WHICH EXPERTS MAY CONCLUDE
THAT THE DRUG WILL HAVE THE CLAIMED EFFECT. 

A PANEL OF THE NATIONAL ACADEMY OF SCIENCES-NATIONAL RESEARCH
COUNCIL (NAS-NRC) REVIEWED THE CLAIMS MADE FOR RITONIC CAPSULES AND
FOUND IT "INEFFECTIVE" FOR EACH OF THE CLAIMS.  FDA CONCLUDED THERE WAS
A LACK OF SUBSTANTIAL EVIDENCE OF ITS EFFICACY AND GAVE NOTICE OF ITS
INTENT TO WITHDRAW THE NDA, OFFERING PETITIONER AN OPPORTUNITY TO
SUBMIT THE REQUIRED KIND OF DATA BEARING ON THE EFFICACY OF THE DRUG
AND STATING THAT WITHDRAWAL OF APPROVAL OF THE NDA WOULD CAUSE THE
RITONIC CAPSULES TO BE A "NEW DRUG" FOR WHICH NO NDA WAS IN EFFECT,
THEREBY MAKING FUTURE SALES UNLAWFUL. 

PETITIONER RESPONDED, SUBMITTING DATA ON THE ISSUE OF EFFICACY AND
MAINTAINED THAT RITONIC CAPSULES WAS NOT A "NEW DRUG" FOR PURPOSES OF
THE ACT AS AMENDED.  FDA CONCLUDED THAT PETITIONER'S EVIDENCE WAS
INSUFFICIENT TO ESTABLISH EFFECTIVENESS AND GAVE NOTICE OF A HEARING ON
THE WITHDRAWAL OF THE NDA.  PETITIONER RESPONDED, CONTESTED FDA'S
AUTHORITY TO PROCEED FURTHER, AND CLAIMED THAT THE PRODUCT WAS NOT A
"NEW DRUG" UNDER THE 1962 ACT.  IT RESERVED THE RIGHT TO ESTABLISH ITS
POSTION IN THE ADMINISTRATIVE PROCEEDINGS, IN JUDICIAL PROCEEDINGS, OR
IN BOTH.  PETITIONER FILED NO MORE DATA TO SUPPORT ITS POSITION; AND
ACCORDINGLY FDA WITHDREW APPROVAL OF THE NDA ON THE GROUND THAT THERE
WAS NO SUBSTANTIAL EVIDENCE THAT THE DRUG WAS EFFECTIVE AS CLAIMED. 
PETITIONER SOUGHT REVIEW OF THE WITHDRAWAL ORDER IN THE COURT OF
APPEALS FOR THE SECOND CIRCUIT, AS PROVIDED IN ^ 505(H), 21 U.S.C. ^
355(H).  THE COURT OF APPEALS AFFIRMED THE WITHDRAWAL ORDER.  CIBA
GEIGY CORP. V. RICHARDSON, 446 F.2D 466. 

MEANWHILE, AND PRIOR TO THE ISSUANCE OF THE WITHDRAWAL ORDER,
PETITIONER BROUGHT SUIT IN THE NEW JERSEY DISTRICT COURT SEEKING
DECLARATORY AND INJUNCTIVE RELIEF.  AFTER HEARING, THE DISTRICT COURT
GRANTED THE GOVERNMENT'S MOTION TO DISMISS THE COMPLAINT FOR LACK OF
JURISDICTION.  ON APPEAL THE COURT OF APPEALS FOR THE THIRD CIRCUIT
AFFIRMED, 463 F.2D 225, HOLDING THAT FDA WAS AUTHORIZED TO DECIDE THE
JURISDICTIONAL QUESTION AS AN INCIDENT OF ITS POWER TO APPROVE OR
WITHDRAW APPROVAL FOR NDA'S, THAT ITS DECISION ON THAT ISSUE WAS
REVIEWABLE ON DIRECT APPEAL BY A COURT OF APPEALS, AND SINCE THE COURT
OF APPEALS FOR THE SECOND CIRCUIT HAD RULED AGAINST PETITIONER ON THAT
APPEAL, THE JURISDICTIONAL QUESTION COULD NOT BE RELITIGATED IN A
SEPARATE SUIT FOR A DECLARATORY JUDGMENT.  WE AFFIRM THE COURT OF
APPEALS. 

WE HAVE STATED IN WEINBERGER V. BENTEX PHARMACEUTICALS, INC., POST,
P. 645, OUR REASONS FOR CONCLUDING THAT FDA HAS JURISDICTION IN AN
ADMINISTRATIVE PROCEEDING TO DETERMINE WHETHER A DRUG PRODUCT IS A "NEW
DRUG" WITHIN THE MEANING OF ^ 201(P) OF THE ACT, 21 U.S.C. ^ 321 (P). 
A DECISION THAT FDA LACKS AUTHORITY TO DETERMINE IN ITS OWN PROCEEDINGS
THE COVERAGE OF THE ACT IT ADMINISTERS, SUBJECT OF COURSE TO JUDICIAL
REVIEW, WOULD SERIOUSLY IMPAIR FDA'S ABILITY TO DISCHARGE THE
RESPONSIBILITIES PLACED ON IT BY CONGRESS.  AS WE SAID IN WEINBERGER V.
HYNSON, WESTCOTT & DUNNING, INC., ANTE, P. 609, AND THE BENTEX CASE,
SUPRA, THE DEFINITION OF "NEW DRUG" AS USED IN ^ 201(P) (1) INVOLVES A
DETERMINATION OF TECHNICAL AND SCIENTIFIC QUESTIONS BY EXPERTS.  THE
AGENCY IS THEREFORE APPROPRIATELY THE ARM OF GOVERNMENT TO MAKE THE
THRESHOLD DETERMINATION OF THE ISSUE OF COVERAGE.  CF. OKLAHOMA PRESS
PUBLISHING CO. V. WALLING, 327 U.S. 186, 210 - 211, N 47. 

IT IS, OF COURSE, TRUE THAT THE ACT GIVES FDA A SECOND LINE OF
DEFENSE -- CIVIL INJUNCTION PROCEEDINGS, CRIMINAL PENALTIES, AND IN REM
SEIZURE AND CONDEMNATION.  SEE ^^ 302(A), 303, 304, 21 U.S.C. ^^ 332
(A), 333, 334.  THOSE ARE SANCTIONS TO ENFORCE THE PROHIBITION OF THE
ACT AGAINST THE SALE IN COMMERCE OF ANY ARTICLE IN VIOLATION OF ^ 505. 
BUT THE ACT DOES NOT CREATE A DUAL SYSTEM OF CONTROL -- ONE
ADMINISTRATIVE, AND THE OTHER JUDICIAL.  CASES MAY ARISE WHERE THERE
HAS BEEN NO FORMAL ADMINISTRATIVE DETERMINATION OF THE "NEW DRUG"
ISSUE, IT BEING FIRST TENDERED TO A DISTRICT COURT.  EVEN THEN,
HOWEVER, THE DISTRICT COURT MIGHT WELL STAY ITS HAND, AWAITING AN
APPROPRIATE ADMINISTRATIVE DETERMINATION THE THRESHOLD QUESTION.  SEE
THE BENTEX CASE.  SURPA.  WHERE THERE IS, HOWEVER, AN ADMINISTRATIVE
DETERMINATION, WHETHER IT BE EXPLICIT OR IMPLICIT IN THE WITHDRAWAL OF
AN NDA, THE TACTIC OF "RESERVING" THE THRESHOLD QUESTION (THE
JURISDICTIONAL ISSUE) FOR LATER JUDICIAL DETERMINATION IS NOT
TOLERABLE.  THERE IS JUDICIAL REVIEW OF FDA'S RULING.  BUT PETITIONER,
HAVING AN OPPORTUNITY TO LITIGATE THE "NEW DRUG" ISSUE BEFORE FDA AND
TO RAISE THE ISSUE ON APPEAL TO A COURT OF APPEALS, MAY NOT RELITIGATE
THE ISSUE IN ANOTHER PROCEEDING.  YAKUS V. UNITED STATES, 321 U.S. 414,
444 - 446. 

              AFFIRMED. 

/1/  IT IS A PRECRIPTION DRUG RECOMMENDED "FOR PATIENTS WHO ARE
LOSING THEIR DRIVE, ALERTNESS, VITALITY AND ZEST FOR LIVING BECAUSE OF
THE NATURAL DEGENERATIVE CHANGES OF ADVANCING YEARS"; AND FOR PATIENTS
WHO ARE "DEBILITATED OR DEPRESSED BY CHRONIC ILLNESS, OVERWORK, ETC.,
AS WELL AS THOSE RECUPERATING FROM ILLNESS OR SURGERY." 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.  MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THIS
CASE. 

CLYDE A SZUCH ARGUED THE CAUSE AND FILED A BRIEF FOR PEITIONER. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR RESPONDENTS. 
ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL KAUPER, ANDREW L. FREY, HOWARD E. SHAPIRO, GEORGE EDELSTEIN,
AND PETER BARTON HUTT.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY LLOYD N.
CUTLER, DANIEL MARCUS, AND WILLIAM T. LAKE FOR PHARMACEUTICAL
MANUFACTURERS ASSN., AND BY THOMAS D. FINNEY, JR., THOMAS RICHARD
SPRADLIN, AND DANIEL F. O'KEEFE, JR., FOR THE PROPRIETARY ASSN. 

BRUCE J. TERRIS, JOSEPH ONEK, AND PETER H. SCHUCK FILED A BRIEF FOR
AMERICAN PUBLIC HEALTH ASSN. ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 

..END :




















WEINBERGER V. BENTEX PHARMACEUTICALS, INC. 412 U.S. 645 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT 

     NO. 72 - 555.  ARGUED APRIL 17, 1973--DECIED JUNE 18, 1973 463
F.2D 363 REVERSED 


    RESPONDENT DRUG MARKETERS FILED SUIT FOR A DECLARATORY JUDGMENT

  THAT THEIR DRUGS CONTAINING PENTYLENETETRAZOL ARE GENERALLY

  RECOGNIZED AS SAFE AND EFFECTIVE AND THUS ARE NOT "NEW DRUGS"

  WITHIN THE MEANING OF ^ 201(P) OF THE FEDERAL FOOD, DRUG, AND

  COSMETIC ACT OF 1938, AS AMENDED.  THEY ALSO SOUGHT EXEMPTION

  UNDER ^ 107 (C) (4), THE GRANDFATHER CLAUSE OF THE 1962

  AMENDMENTS TO THE ACT.  THE FOOD AND DRUG ADMINISTRATION (FDA)

  COMMISSIONER, BASED ON NAS-NRC PANEL REPORTS, CONCLUDED THAT

  THERE WAS A LACK OF SUBSTANTIAL EVIDENCE THAT THE DRUGS WERE

  EFFECTIVE FOR THEIR INTENDED USES AND GAVE NOTICE OF HIS

  INTENTION TO INITIATE PROCEEDINGS TO WITHDRAW APPROVAL OF THE NEW

  DRUG APPLICATIONS (NDA'S).  IN LIGHT OF THE FDA'S POSITION THAT

  WITHDRAWAL OF APPROVAL OF AN NDA WOULD OPERATE TO REMOVE

  MARKETING APPROVAL FOR ALL DRUGS OF SIMILAR COMPOSITION, KNOWN AS

  "ME-TOO" DRUGS, WHETHER OR NOT EXPRESSLY COVERED BY AN EFFECTIVE

  NDA, THE COMMISSIONER INVITED HOLDERS OF NDA'S FOR DRUGS

  CONTAINING PENTYLENETETRAZOL "AND ANY INTERESTED PERSON WHO MIGHT

  BE ADVERSELY AFFECTED BY THEIR REMOVAL FROM THE MARKET" TO SUBMIT

  "ADEQUATE AND WELL-CONTROLLED STUDIES" TO ESTABLISH THE

  EFFECTIVENESS OF THE DRUGS.  ONLY ONE NDA HOLDER SUBMITTED

  FURTHER EVIDENCE, WHICH THE COMMISSIONER HELD DID NOT SATISFY THE

 STATUTORY STANDARD.  HE GAVE NOTICE OF INTENT TO ISSUE AN ORDER

  WITHDRAWING APPROVAL OF THE NDA'S, AND ONLY ONE NDA HOLDER

  REQUESTED A HEARING BUT FILED NO SUPPORTING DATA.  THE

  COMMISSIONER ISSUED ORDERS WITHDRAWING APPROVAL OF THE NDA'S AND

  NO APPEAL WAS TAKEN.  RESPONDENTS HERE ALL MARKET "ME-TOO" DRUGS,

  NONE OF WHICH WAS EXPRESSLY COVERED BY AN EFFECTIVE NDA.  THE

  DISTRICT COURT HELD THAT THE FDA SHOULD RESOLVE THE "NEW DRUG"

  AND "GRANDFATHER" ISSUES IN AN ADMINISTRATIVE PROCEEDING.  THE

  COURT OF APPEALS REVERSED AND REMANDED WITH DIRECTIONS TO THE

  DISTRICT COURT TO DETERMINE WHETHER THE CHALLENGED DRUGS MAY

LAWFULLY BE MARKETED WITHOUT APPROVED NDA'S, HOLDING THAT THE FDA

  HAS NO JURISDICTION, PRIMARY OR CONCURRENT, TO DECIDE WHAT IS A

  "NEW DRUG" FOR WHICH AN NDA IS REQUIRED.  HELD:  THE DISTRICT

  COURT'S REFERRAL OF THE "NEW DRUG" AND "GRANDFATHER" ISSUES TO

  THE FDA WAS PROPER.  PP. 649 - 654. 

      (A) WHILE AN FDA ORDER DENYING AN NDA AND WITHDRAWING ONE IS

  REVIEWABLE BY THE COURT OF APPEALS UNDER ^ 505(H), AN ORDER

  DECLARING A "NEW DRUG" STATUS UNDER ^ 201(P) IS REVIEWABLE UNDER

  THE ADMINISTRATIVE PROCEDURE ACT BY THE DISTRICT COURT.  PP. 651

  - 652. 

     (B) THE REACH OF SCIENTIFIC INQUIRY UNDER BOTH ^ 505(D) AND ^

  201(P) IS THE SAME, WEINBERGER V. HYNSON, WESTCOTT & DUNNING,

INC., ANTE, P. 609, AND IT IS IMPLICIT IN THE REGULATORY SCHEME

  THAT THE FDA HAS JURISDICTION TO DECIDE WITH ADMINISTRATIVE

  FINALITY, SUBJECT TO JUDICIAL REVIEW, THE "NEW DRUG" STATUS OF

  INDIVIDUAL DRUGS OR CLASSES OF DRUGS.  PP. 652 - 653. 

     (C) THE "NEW DRUG" AND "GRANDFATHER" ISSUES ARE PECULIARLY

  SUITED TO INITIAL DETERMINATION BY THE FDA WITH ITS SPECIALIZED

  COMPETENCE AND EXPERTISE.  PP. 653 - 654. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED, EXCEPT BRENNAN, J., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE, AND STEWART, J., WHO TOOK NO
PART IN THE DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE BENTEX AND SOME 20 OTHER FIRMS THAT MARKET DRUGS
CONTAINING PENTYLENETETRAZOL FILED THIS SUIT FOR A DECLARATORY JUDGMENT
THAT THEIR DRUGS CONTAINING PENTYLENETETRAZOL ARE GENERALLY RECOGNIZED
AS SAFE AND EFFECTIVE, AND THUS NOT "NEW DRUGS" WITHIN THE MEANING OF ^
201(P) (1) OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT OF 1938, AS
AMENDED, 76 STAT. 781, 21 U.S.C. ^ 321(P) (1).  THEY ALSO SOUGHT
EXEMPTION FROM THE NEW EFFECTIVENESS REQUIREMENTS BY REASON OF ^ 107(C)
(4) OF THE 1962 AMENDMENTS TO THE ACT, KNOWN AS THE "GRANDFATHER"
CLAUSE. 

AS PART OF THE FOOD AND DRUG ADMINISTRATION'S (FDA'S) DRUG EFFICACY
STUDY IMPLEMENTATION PROGRAM, THREE SEPARATE NATIONAL ACADEMY OF
SCIENCES-NATIONAL RESEARCH COUNCIL (NAC-NRC) PANELS REVIEWED THE
EVIDENCE CONCERNING THESE DRUGS, AND EACH CONCLUDED THAT THE DRUG WAS
"INEFFECTIVE" FOR THE INDICATED USE.  THE COMMISSIONER CONCLUDED THERE
WAS A LACK OF SUBSTANTIAL EVIDENCE THAT THESE DRUGS WERE EFFECTIVE FOR
THEIR INTENDED USES AND GAVE NOTICE ANNOUNCING HIS INTENTION TO
INITIATE PROCEEDINGS TO WITHDRAW APPROVAL OF THE NEW DRUG APPLICATIONS
(NDA'S).  FDA HAD TAKEN THE POSITION THAT WITHDRAWAL OF APPROVAL OF AN
NDA WOULD OPERATE TO REMOVE MARKETING APPROVAL FOR ALL DRUGS OF SIMILAR
COMPOSITION, KNOWN AS "ME-TOO" DRUGS, WHETHER OR NOT THEY WERE
EXPRESSLY COVERED BY AN EFFECTIVE NDA.  /1/  ACCORDINGLY, THE NOTICE
INVITED THE HOLDERS OF THE NDA'S FOR DRUGS CONTAINING PENTYLENETETRAZOL
"AND ANY INTERESTED PERSON WHO MIGHT BE ADVERSELY AFFECTED BY THEIR
REMOVAL FROM THE MARKET" TO SUBMIT "ADEQUATE AND WELL-CONTROLLED
STUDIES" TO ESTABLISH THE EFFECTIVENESS OF THE DRUGS.  SEE ^ 505(D), 21
U.S.C. ^ 355(D).  ONLY ONE NDA HOLDER SUBMITTED FURTHER EVIDENCE, WHICH
THE COMMISSIONER HELD DID NOT SATISFY THE STATUTORY STANDARD.  HE
THEREUPON GAVE NOTICE OF INTENT TO ISSUE AN ORDER WITHDRAWING APPROVAL
OF THE NDA'S UNDER ^ 505(E), 21 U.S.C. ^ 355 (E).  AGAIN, ALL THOSE WHO
MIGHT BE ADVERSELY AFFECTED BY WITHDRAWAL OF THE NDA'S WERE GIVEN THE
OPPORTUNITY TO PARTICIPATE.  ONLY ONE NDA HOLDER REQUESTED A HEARING
BUT FILED NO DATA TO SUPPORT IT.  THE COMMISSIONER ISSUED ORDERS
WITHDRAWING APPROVAL OF THE THREE NDA'S (35 FED. REG. 14412); NO APPEAL
WAS TAKEN.  THIS SUIT IN THE DISTRICT COURT FOLLOWED.  IT APPEARS THAT
ALL OF THE PARTIES TO THIS SUIT MARKET "ME-TOO" DRUGS, NONE OF WHICH
WAS EXPRESSLY COVERED BY AN EFFECTIVE NDA. 

THE DISTRICT COURT HELD THAT ALTHOUGH IT COULD DETERMINE WHETHER THE
DRUGS WERE "NEW" OR "GRANDFATHERED" DRUGS, ITS JURISDICTION WAS
CONCURRENT WITH THAT OF FDA AND THAT FDA SHOULD RESOLVE THE "NEW DRUG"
ISSUE IN AN ADMINISTRATIVE PROCEEDING.  IT ENTERED AN INJUNCTION TO
PRESERVE THE STATUS QUO AND RULED THAT IF FDA SHOULD DECLINE TO HOLD A
HEARING IT WOULD DETERMINE THE ISSUE.  THE COURT OF APPEALS REVERSED
AND REMANDED WITH DIRECTIONS THAT THE DISTRICT COURT DETERMINE WHETHER
THE CHALLENGED DRUGS MAY LAWFULLY BE MARKETED WITHOUT APPROVED NDA'S.
463 F.2D 363.  IT HELD THAT FDA HAS NO JURISDICTION, EITHER PRIMARY OR
CONCURRENT, TO DECIDE IN AN ADMINISTRATIVE PROCEEDING WHAT IS A "NEW
DRUG" FOR WHICH AN NDA IS REQUIRED.  IN ITS VIEW THE 1962 ACT
ESTABLISHED TWO FORUMS FOR THE REGULATION OF DRUGS:  AN ADMINISTRATIVE
ONE FOR PREMARKETING CLEARANCES FOR "NEW DRUGS" OR WITHDRAWAL OF
PREVIOUSLY APPROVED NDA'S, WITH THE RIGHT OF APPEAL; AND SECOND, A
JUDICIAL ONE FOR ENFORCEMENT OF THE REQUIREMENT THAT "NEW DRUGS" BE
LCEARED AS SAFE AND EFFECTIVE BEFORE MARKETING BY PROVIDING THE
GOVERNMENT WITH JUDICIAL REMEDIES OF SEIZURE, INJUNCTION, AND CRIMINAL
PROSECUTION AVAILABLE SOLELY IN THE DISTRICT COURT.  ID., AT 371 -
372. 

WE REVERSE THE COURT OF APPEALS. 

FDA, AS A RESULT OF AN NAS-NRC STUDY AND AFTER DUE NOTICE, FACED UP
TO THE PROBLEM OF PROPOSING WITHDRAWAL OF DRUGS FOUND TO BE LACKING IN
SUBSTANTIAL EVIDENCE OF EFFECTIVENESS.  ONE METHOD WOULD BE TO HAVE
1,000 WITHDRAWAL HEARINGS -- PERHAPS AS MANY AS 3,500, EACH ONE LASTING
PROBABLY FOR WEEKS.  THE COST IN TIME AND BUDGET WOULD BE ENORMOUS. 
ACCORDINGLY, FDA ISSUED REGULATIONS, /2/  ALREADY DISCUSSED IN
WEINBERGER V. HYNSON, WESTCOTT & DUNNING, INC., ANTE, P. 609, DEFINING
THE "SCIENTIFIC PRINCIPLES WHICH CHARACTERIZE AND ADEQUATE AND WELL
CONTROLLED CLINICAL INVESTIGATION,"  /3/  WHICH ELABORATES ON THE
STATUTORY "SUBSTANTIAL EVIDENCE" TEST.  AND AS WE HELD IN HYNSON, NO
BASIS FOR A HEARING UNDER THESE REGULATIONS WOULD BE LAID UNLESS A
PARTY SEEKING A HEARING PROFFERED AT LEAST SOME EVIDENCE OF THAT NATURE
AND QUALITY. 

BY MAY 1972, 102 FINAL ORDERS EFFECTING WITHDRAWAL OF APPROVAL FOR
452 NDA'S HAD BEEN ISSUED; AND THEY RESULTED IN THE REMOVAL FROM THE
MARKET OF AN ADDITIONAL 1,473 "ME-TOO" DRUGS.  /4/  FDA WAS STILL
TROUBLED BECAUSE UNDER THE 1962 ACT NO CENSUS OF THE MARKETPLACE WAS
AUTHORIZED.  THAT IS WHY CONGRESS ENACTED THE DRUG LISTING ACT OF 1972,
86 STAT. 559, 21 U.S.C. SECS. 331 (P), 335 (E), 360 (E), (F), (C), (D)
(1970 ED., SUPP. II).  THAT ACT REQUIRES MANUFACTURERS TO SUBMIT TO FDA
A LIST OF ALL DRUGS THEY MARKET, INCLUDING DATA SHOWING THEIR
COMPOSITION, LABELING, AND ADVERTISING.  /5/ THE SENATE REPORT STATED:
/6/ 

     "THE EFFECTIVE ENFORCEMENT OF THE DRUG PROVISIONS OF THE ACT

  REQUIRES THE READY AVAILABILITY OF A CURRENT INVENTORY OF ALL

 MARKETED DRUGS.  THE SECRETARY IS JUST COMPLETING A THOROUGH

  REVIEW OF THE EFFECTIVENESS OF DRUGS MARKETED PURSUANT TO NEW

  DRUG APPLICATIONS DURING THE PERIOD 1938 - 1962, AS REQUIRED BY

  THE DRUG AMENDMENTS OF 1962.  APPLICATION OF THE RESULTS OF THIS

  IMPORTANT REVIEW TO RELATED DRUGS WOULD BE FRUSTRATED IF A LIST

  OF ALL MARKETED DRUGS WERE NOT EASILY OBTAINED." 

FDA ALSO REALIZED THAT IT IS IMPOSSIBLE TO APPLY THE 1962 AMENDMENTS
TO OVER-THE-COUNTER (OTC) DRUGS ON A CASE-BY-CASE BASIS.  THERE ARE
BETWEEN 100,000 AND 500,000 OF THESE PRODUCTS, FEW OF WHICH WERE
PREVIOUSLY APPROVED BY FDA.  IN MAY 1972 FDA ADOPTED A PROCEDURE FOR
DETERMINING WHETHER PARTICULAR OTC PRODUCTS, NOT COVERED BY NDA'S ARE
SAFE PRODUCTS, NOT INEFFECTIVE, AND NOT MISBRANDED.  37 FED. REG.
9464.  THE PROCEDURE INVOLVES THE ESTABLISHMENT OF INDEPENDENT EXPERT
PANELS FOR DIFFERENT CATEGORIES OF OTC DRUGS (E. G., ANTACIDS,
LAXATIVES, ANALGESICS) WHICH WOULD REVIEW ALL AVAILABLE DATA AND
PREPARE MONOGRAPHS PRESCRIBING DRUG COMPOSITION, LABELING, AND
MANUFACTURING CONTROLS.  OTC'S CONFORMING TO THE MONOGRAPH WILL NOT BE
CONSIDERED EITHER MISBRANDED OR A "NEW DRUG" REQUIRING AN NDA.  THE
REGULATION PROVIDES FOR A HEARING BEFORE THE EXPERT PANEL, COMMENTS AND
REBUTTAL COMMENTS ON THE MONOGRAPH, AND FINALLY A HEARING BEFORE THE
COMMISSIONER AND JUDICIAL REVIEW.  ID., AT 9475. 

THIS CASE, LIKE THE CROSS-PETITION IN THE HYNSON CASE (NO. 72 - 414)
RAISES THE QUESTION WHETHER FDA HAS AUTHORITY TO DECIDE IN AN
ADMINISTRATIVE HEARING WHETHER A DRUG SATISFIES THE NEW EFFECTIVENESS
REQUIREMENTS OF THE ACT.  AS NOTED, THE COMMISSIONER ORDERED THAT THREE
NDA'S FOR THE DRUGS IN QUESTION BE WITHDRAWN.  REVIEW OF THE ORDER WAS
NOT SOUGHT IN THE COURT OF APPEALS AS PROVIDED IN ^ 505(H), 21 U.S.C. ^
355 (H).  RATHER, THE AGGRIEVED MANUFACTURERS OF "ME-TOO" DRUGS FILED
SUIT IN THE DISTRICT COURT, WITH THE RESULTS WE HAVE ALREADY DETAILED. 
THE NARROW QUESTION IS WHETHER THE FDA MAY DECIDE WHETHER A DRUG IS A
"NEW DRUG" ON REFERRAL FROM A DISTRICT COURT. 

AS ALREADY NOTED, AN ORDER DENYING AN NDA AND WITHDRAWING ONE IS
REVIEWABLE BY THE COURT OF APPEALS, ^ 505(H); AND WE SEE NO REASON WHY
CONGRESS COULD NOT MAKE ONE METHOD OF REVIEW THE EXCLUSIVE ONE. 
CERTAINLY AN ORDER THAT DOES NOT DENY OR WITHDRAW AN NDA IS REVIEWABLE
UNDER THE ADMINISTRATIVE PROCEDURE ACT, IF IT DECLARES A "NEW DRUG"
STATUS.  SEE HYNSON, SUPRA, AT 627.  IN BOLSTERING THAT CONCLUSION WE
SHOULD NOTE IN PASSING THAT ABBOTT LABORATORIES V. GARDNER, 387 U.S.
136, 144, SAID THAT THE PROVISIONS STATED IN THIS ACT FOR JUDICIAL
REVIEW DO NOT MANIFEST "A CONGRESSIONAL PURPOSE TO ELIMINATE JUDICIAL
REVIEW OF OTHER KINDS OF AGENCY ACTION."  WHILE ^ 505 ) WOULD APPEAR TO
BE THE EXCLUSIVE METHOD OF OBTAINING JUDICIAL REVIEW OF FDA'S ORDER
WITHDRAWING AN NDA COVERING THE INSTANT DRUGS, THE GOVERNMENT
APPARENTLY DID NOT OPPOSE THE DISTRICT COURT'S TAKING JURISDICTION OR
APPEAL FROM ITS ACTION AND PRESENTS NO OBJECTION TO THE EXERCISE BY THE
COURTS OF JURISDICTION IN THIS CASE.  IT DOES, HOWEVER, STRENUOUSLY
OPPOSE THE CONCLUSIONS REACHED BY THE COURT OF APPEALS. 

THAT COURT, IN HOLDING THAT FDA HAS NO JURISDICTION TO DETERMINE THE
"NEW DRUG" STATUS OF A DRUG, STATED THAT THE QUESTION OF "NEW DRUG"
STATUS IS NEVER PRESENTED WHEN AN APPLICATION OF A MANUFACTURER FOR
APPROVAL IS FILED.  PARTIES, OF COURSE, CANNOT CONFER JURISDICTION;
ONLY CONGRESS CAN DO SO.  THE LINE SOUGHT TO BE DRAWN BY THE COURT OF
APPEALS IS FDA ACTION ON NDA'S PURSUANT TO ^ 505(D) AND ^ 505(E), ON
THE ONE HAND, AND THE QUESTION OF "NEW DRUG" DETERMINATION ON THE
OTHER.  WE CAN DISCERN NO SUCH JURISDICTIONAL LINE UNDER THE ACT.  THE
FDA, AS ALREADY STATED, MAY DENY AN NDA WHERE THERE IS A LACK OF
"SUBSTANTIAL EVIDENCE" OF THE DRUG'S EFFECTIVENESS, BASED, AS WE HAVE
OUTLINE, ON CLINICAL INVESTIGATION BY EXPERTS.  BUT THE "NEW DRUG"
DEFINITION UNDER ^ 201(P) ENCOMPASSES A DRUG "NOT GENERALLY RECOGNIZED,
AMONG EXPERTS QUALIFIED BY SCIENTIFIC TRAINING AND EXPERIENCE TO
EVALUATE THE SAFETY AND EFFECTIVENESS OF DRUGS, AS SAFE AND EFFECTIVE
FOR USE."  WHETHER A PARTICULAR DRUG IS A "NEW DRUG," DEPENDS IN PART
ON THE EXPERT KNOWLEDGE AND EXPERIENCE OF SCIENTISTS BASED ON
CONTROLLED CLINICAL EXPERIMENTATION AND BACKED BY SUBSTANTIAL SUPPORT
IN SCIENTIFIC LITERATURE.  ONE FUNCTION IS NOT PECULIAR TO JUDICIAL
EXPERTISE, THE OTHER TO ADMINISTRATIVE EXPERTISE.  THE TWO TYPES OF
CASES OVERLAP AND STRONGLY SUGGEST THAT CONGRESS DESIRED THAT THE
ADMINISTRATIVE AGENCY MAKE BOTH KINDS OF DETERMINATION.  EVEN WHERE NO
SUCH ADMINISTRATIVE DETERMINATION HAS BEEN MADE AND THE ISSUE ARISES IN
A DISTRICT COURT IN ENFORCEMENT PROCEEDINGS, IT WOULD BE COMMONPLACE
FOR THE COURT TO AWAIT AN APPROPRIATE ADMINISTRATIVE DECLARATION BEFORE
IT ACTED.  SEE MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, 50 -
51; FPC V. LOUISIANA POWER & LIGHT CO., 406 U.S. 621, 647.  IT MAY, OF
COURSE, BE TRUE THAT IN SOME CASES GENERAL RECOGNITION THAT A DRUG IS
EFFICACIOUS MIGHT BE MADE WITHOUT THE KIND OF SCIENTIFIC SUPPORT
NECESSARY TO OBTAIN APPROVAL OF AN NDA.  BUT AS WE INDICATE IN HYNSON,
SUPRA, AT 631, THE REACH OF SCIENTIFIC INQUIRY UNDER BOTH ^ 505(D) AND
UNDER ^ 201 (P) IS PRECISELY THE SAME. 

WE THINK THAT IT IS IMPLICIT IN THE REGULATORY SCHEME, NOT SPELLED
OUT IN HAEC VERBA, THAT FDA HAS JURISDICTION TO DECIDE WITH
ADMINISTRATIVE FINALITY, SUBJECT TO THE TYPES OF JUDICIAL REVIEW
PROVIDED, THE "NEW DRUG" STATUS OF INDIVIDUAL DRUGS OR CLASSES OF
DRUGS.  THE DELUGE OF LITIGATION THAT WOULD FOLLOW IF "ME-TOO" DRUGS
AND OTC DRUGS HAD TO RECEIVE DE NOVO HEARINGS IN THE COURTS WOULD INURE
TO THE INTERESTS OF MANUFACTURERS AND MERCHANTS IN DRUGS, BUT NOT TO
THE INTERESTS OF THE PUBLIC THAT CONGRESS UAS ANXIOUS TO PROTECT BY THE
1962 AMENDMENTS, AS WELL AS OTC DRUGS AND DRUGS COVERED BY THE 1972
ACT.  WE ARE TOLD THAT FDA IS INCAPABLE OF HANDLING A CASELOAD OF MORE
THAN PERHAPS 10 OR 15 DE NOVO JUDICIAL PROCEEDINGS IN A YEAR.  CLEARLY,
IF FDA WERE REQUIRED TO LITIGATE, ON A CASE-BY-CASE BASIS, THE "NEW
DRUG" STATUS OF EACH DRUG NOW MARKETED, THE REGULATORY SCHEME OF THE
ACT WOULD BE SEVERELY UNDERMINED, IF NOT TOTALLY DESTROYED.  MOREOVER,
A CASE-BY-CASE APPROACH IS INHERENTLY UNFAIR BECAUSE IT REQUIRES
COMPLIANCE BY ONE MANUFACTURER WHILE HIS COMPETITORS MARKETING SIMILAR
DRUGS REMAIN FREE TO VIOLATE THE ACT.  IN A CASE MUCH MORE CLOUDED WITH
DOUBTS THAN THIS ONE, WE HELD THAT WE WOULD NOT "IN THE ABSENCE OF
COMPELLING EVIDENCE THAT SUCH WAS CONGRESS' INTENTION . . . PROHIBIT
ADMINISTRATIVE ACTION IMPERATIVE FOR THE ACHIEVEMENT OF AN AGENCY'S
ULTIMATE PURPOSES."  PERMIAN BASIN AREA RATE CASES, 390 U.S. 747, 780. 
AND SEE RICCI V. CHICAGO MERCANTILE EXCHANGE, 409 U.S. 289, 304 - 306. 

WE CONCLUDE THAT THE DISTRICT COURT'S REFERRAL OF THE "NEW DRUG" AND
THE "GRANDFATHER" ISSUES TO FDA WAS APPROPRIATE, AS THESE ARE THE KINDS
OF ISSUES PECULIARLY SUITED TO INITIAL DETERMINATION BY THE FDA.  AS
THE DISTRICT COURT SAID:  "EVALUATION OF CONFLICTING REPORTS AS TO THE
REPUTATION OF DRUGS AMONG EXPERTS IN THE FIELD IS NOT A MATTER WELL
LEFT TO A COURT WITHOUT CHEMICAL OR MEDICAL BACKGROUND."  THE
DETERMINATION UHETHER A DRUG IS GENERALLY RECOGNIZED AS SAFE AND
EFFECTIVE WITHIN THE MEANING OF ^ 201(P) (1) NECESSARILY IMPLICATES
COMPLEX CHEMICAL AND PHARMACOLOGICAL CONSIDERATIONS.  THRESHOLD
QUESTIONS WITHIN THE PECULIAR EXPERTISE OF AN ADMINISTRATIVE AGENCY ARE
APPROPRIATELY ROUTED TO THE AGENCY, WHILE THE COURT STAYS ITS HAND.  AS
WE STATED IN FAR EASTERN CONFERENCE V. UNITED STATES, 342 U.S. 570, 574
575: "(IN CASES RAISING ISSUES OF FACT NOT WITH WITHIN THE CONVENTIONAL
EXPERIENCE OF JUDGES OR CASES REQUIRING THE EXERCISE OF ADMINISTRATIVE
DISCRETION, AGENCIES CREATED BY CONGRESS FOR REGULATING THE SUBJECT
MATTER SHOULD NOT BE PASSED OVER.  THIS IS SO EVEN THOUGH THE FACTS
AFTER THEY HAVE BEEN APPRAISED BY SPECIALIZED COMPETENCE SERVE AS A
PREMISE FOR LEGAL CONSEQUENCES TO BE JUDICIALLY DEFINED.  UNIFORMITY
AND CONSISTENCY IN THE REGULATION OF BUSINESS ENTRUSTED TO A PARTICULAR
AGENCY ARE SECURED, AND THE LIMITED FUNCTIONS OF REVIEW BY THE
JUDICIARY ARE MORE RATIONALLY EXERCISED, BY PRELIMINARY RESORT FOR
ASCERTAINING AND INTERPRETING THE CIRCUMSTANCES UNDERLYING LEGAL ISSUES
TO AGENCIES THAT ARE BETTER EQUIPPED THAN COURTS BY SPECIALIZATION, BY
INSIGHT GAINED THROUGH EXPERIENCE, AND BY MORE FLEXIBLE PROCEDURE." 
AND SEE PORT OF BOSTON MARINE TERMINAL ASSN. V. REDERIAKTIEBOLAGET
TRANSALANTIC, 400 U.S. 62, 68; RICCI V. CHICAGO MERCANTILE EXCHANGE,
SUPRA, AT 304-306. 

     REVERSED 

/1/  VOLUME 37 FED. REG. 23187, ADDING ^ 130.40 TO 21 CFR, DEFINES
"IDENTICAL, RELATED, OR SIMILAR DRUG" AS USED IN THIS ACT TO INCLUDE
"OTHER BRANDS, POTENCIES, DOSAGE FORMS, SALTS, AND ESTERS OF THE SAME
DRUG MOIETY AS WELL AS OF ANY DRUG MOIETY RELATED IN CHEMICAL STRUCTURE
OR KNOWN PHARMACOLOGICAL PROPERTIES."  IT ALSO PROVIDES ALL PERSONS
WITH AN INTEREST IN SUCH DRUGS AN OPPORTUNITY FOR HEARING ON ANY
PROPOSED WITHDRAWAL OF NDA APPROVAL FOR THE BASIC DRUG.  A DISTRICT
COURT ORDER DIRECTING FDA TO APPLY THE NAS-NRC EVALUATION TO ALL "ME
TOO" DRUGS IS REPRODUCED IN 37 FED. REG. 26623 - 26624. 

/2/  35 FED. REG. 3073 AND 7250. 

/3/  SEE THE APPENDIX IN HYNSON, ANTE, P. 634. 

/4/  HEARINGS ON THE PRESENT STATUS OF COMPETITION IN THE
PHARMACEUTICAL INDUSTRY BEFORE THE SUBCOMMITTEE ON MONOPOLY OF THE
SENATE SELECT COMMITTEE ON SMALL BUSINESS, 92D CONG., 2D SESS., PT. 22,
P. 8525. 

/5/  FILINGS ARE DUE IN JUNE 1973.  37 FED. REG. 26432. 

/6/  S. REP. NO. 92 - 924, P. 2. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.  MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THIS
CASE. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR PETITIONERS. 
ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL KAUPER, DEPUTY SOLICITOR GENERAL WALLACE, ANDREW L. FREY,
HOWARD E. SHAPIRO, GEORGE EDELSTEIN, AND PETER BARTON HUTT. 

GEORGE F. TOWNES ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE SOL E. ABRAMS AND C. BEN BOWEN. 

BRUCE J. TERRIS, JOSEPH ONEK, AND PETER H. SCHUCK FILED A BRIEF FOR
AMERICAN PUBLIC HEALTH ASSN. ET AL. AS AMICI CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY LLOYD N.
BUTLER, DANIEL MARCUS, AND WILLIAM T. LAKE FOR PHARMACEUTICAL
MANUFACTURERS ASSN., AND BY THOMAS D. FINNEY, JR., THOMAS RICHARD
SPRADLIN, AND DANIEL F. O'KEEFE, JR., FOR THE PROPRIETARY ASSN.
..END :














USV PHARMACEUTICAL CORP. V. WEINBERGER 412 U.S. 655 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT 

     NO. 72 - 666.  ARGUED APRIL 17, 1973--DECIDED JUNE 18, 1973
461 F.2D 223, AFFIRMED. 


    PETITIONER SELLS DRUG PRODUCTS CONTAINING CITRUS BIOFLAVONOID,

  AN EXTRACT FROM FRUIT SKINS, AS A PRINCIPAL ACTIVE INGREDIENT. 

  IN THE 1950'S NEW DRUG APPLICATIONS (NDA'S) WERE FILED AND BECAME

  EFFECTIVE FOR SEVEN PRODUCTS, AND TWO WERE SOLD WITHOUT ANY NDA. 

  AFTER THE ENACTMENT OF THE 1962 AMENDMENTS TO THE FEDERAL FOOD,

  DRUG, AND COSMETIC ACT, THESE PRODUCTS, TOGETHER WITH A LARGE

  NUMBER OF OTHER BIOFLAVONOID PRODUCTS WERE EXAMINED BY THE FOOD

AND DRUG ADMINISTRATION (FDA) FOR EFFECTIVENESS.  BASED UPON

  NAS-NRC REPORTS AND ITS OWN EVALUATION, FDA GAVE NOTICE OF

  OPPORTUNITY FOR HEARING ON ITS PROPOSAL TO WITHDRAW APPROVALS OF

  NDA'S FOR ALL DRUGS CONTAINING THESE COMPOUNDS, ALONE OR IN

  COMBINATION WITH OTHER DRUGS.  PETITIONER THEN BROUGHT SUIT IN

  THE DISTRICT COURT, SEEKING A DECLARATORY JUDGMENT THAT ITS DRUGS

  ARE EXEMPT FROM THE EFFICACY REQUIREMENTS UNDER ^ 107(C) (4), THE

  SO-CALLED "GRANDFATHER" CLAUSE.  THE FDA REFUSED A STAY PENDING

  THE JUDICIAL PROCEEDINGS AND WENT FORWARD WITH ITS ADMINISTRATIVE

  ACTION.  PETITIONER SUBMITTED NO EVIDENCE OF "ADEQUATE AND

  WELL-CONTROLLED INVESTIGATIONS" AS REQUIRED BY ^ 505(D) TO

  SUPPORT ITS CLAIMS OF EFFECTIVENESS, AND THE FDA WITHDREW

  PETITIONER'S NDA'S.  SECTION 107(C) (4) EXEMPTS FROM THE

  EFFECTIVENESS, REQUIREMENTS ANY DRUG WHICH ON THE DAY PRECEDING

  THE 1962 ENACTMENT (1) WAS COMMERCIALLY USED OR SOLD IN THE

  UNITED STATES, (2) WAS NOT A "NEW DRUG" AS DEFINED IN THE 1938

  ACT, AND (3) "WAS NOT COVERED BY AN EFFECTIVE APPLICATION" FOR A

  NEW DRUG UNDER THE 1938 ACT.  THE DISTRICT COURT FOUND THAT TWO

  OF THE PRODUCTS HAD NEVER BEEN COVERED BY EFFECTIVE NDA'S AND

  THAT, WHILE SEVEN HAD BEEN COVERED, THEIR APPLICATIONS HAD LATER

BEEN WITHDRAWN BY PETITIONER.  IT CONCLUDED THAT PETITIONER'S

  DRUGS WERE NOT COVERED BY EFFECTIVE APPLICATIONS, AND HENCE WERE

  EXEMPT FROM THE EFFECTIVENESS CRITERION.  THE COURT OF APPEALS

  REVERSED ON THE MERITS.  IT HELD THAT PETITIONER'S DRUGS WERE NOT

  ENTITLED TO AN EXEMPTION, THAT AN APPLICANT COULD NOT WITHDRAW AN

  NDA ONCE IT BECAME EFFECTIVE, THAT THE DRUGS WERE "COVERED BY AN

  EFFECTIVE APPLICATION,"  AND THAT ALTHOUGH "ME-TOO" DRUGS

  (SIMILAR DRUGS) OF OTHER MANUFACTURERS WOULD BE EXEMPT,

  PETITIONER'S "ME-TOOS" WERE NOT EXEMPT.  HELD: 

      1.  "ANY DRUG" IS USED IN ^ 107(C) (4) IN THE GENERIC SENSE,

  WHICH MEANS THAT THE "ME-TOOS" WHETHER THE PRODUCTS OF THE SAME

  OR OF DIFFERENT MANUFACTURERS "COVERED" BY AN "EFFECTIVE" NDA ARE

  NOT EXEMPT FROM THE EFFICACY REQUIREMENT OF ^ 201(P).  PP. 663 -

  665. 

     2.  PRESCRIPTION DRUGS ON THE MARKET ARE SUBJECT TO THE 1962

  EFFICACY REQUIREMENTS, FOR IF THE 1962 AMENDMENTS ARE TO BE

COMPREHENSIVELY MEANINGFUL, ^ 107(C) (4) CANNOT BE READ SO AS TO

  PROVIDE A LOOPHOLE TO PERMIT THE MARKETING OF DRUGS PREVIOUSLY

  SUBJECT TO NEW DRUG REGULATION WITHOUT DEMONSTRATING BY THE NEW

  STATUTORY STANDARDS THAT THEY HAVE THE CLAIMED EFFICACY.  PP. 665

  - 666. 

     3.  THE CONGRESSIONAL PURPOSE WAS TO EXEMPT ONLY THOSE DRUGS

  THAT NEVER HAD BEEN SUBJECT TO THE NEW DRUG REGULATION, AND

THEREFORE ANY DRUG FOR WHICH AN NDA HAD ONCE BEEN EFFECTIVE DOES

  NOT FALL WITHIN THE EXEMPT CATAGORY.  PP. 666 - 668. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED, EXCEPT BRENNAN, J., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE, AND STEWART, J., WHO TOOK NO
PART IN THE DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER SELLS A LINE OF DRUGS CONTAINING, AS A PRINCIPAL ACTIVE
INGREDIENT, CITRUS BIOFLAVONOID, WHICH IS AN EXTRACT FROM FRUIT SKINS. 
THE DRUGS ARE SOLD IN CAPSULES, SYRUP AND TABLETS.  IN THE 1950'S NEW
DRUG APPLICATIONS (NDA'S) WERE FILED AND BECAME EFFECTIVE FOR SEVEN OF
THEM; TWO, HOWEVER, WERE SOLD WITHOUT ANY NDA.  IN 1961 THE FOOD AND
DRUG ADMINISTRATION (FDA) ADVISED PETITIONER THAT TWO OF THE PRODUCTS,
WHEN DISTRIBUTED UNDER THE EXISTING LABELS, WERE NOT NEW DRUGS.  THESE
DRUGS WERE RECOMMENDED FOR A WIDE VARIETY OF AILMENTS FROM BLEEDING, TO
HYPERTENSION, TO ULCERATIVE COLITIS.  AFTER THE 1962 AMENDMENTS TO THE
FEDEERAL FOOD, DRUG, AND COSMETIC ACT OF 1938, 52 STAT. 1040, AS
AMENDED, 76 STAT. 780, THESE PRODUCTS, TOGETHER WITH A LARGE NUMBER OF
OTHER BIOFLAVONOID PRODUCTS, WERE EXAMINED BY FDA FOR DRUG
EFFECTIVENESS.  THE NATIONAL ACADEMY OF SCIENCES-NATIONAL RESEARCH
COUNCIL (NAS-NRC) PANELS REVIEWED THEM.  ONE PANEL ON METABOLIC
DISORDERS CONCLUDED THAT THE "USE OF THESE MATERIALS AS HEMOSTATIC
AGENTS FOR CAPILLARY FRAGILITY IS FELT TO BE UNJUSTIFIABLE AND NOT
PROVED."  A PANEL ON HEMATOLOGIC DISORDERS FOUND THERE WAS NO PROOF
THAT THESE PRODUCTS WERE EFFICACIOUS FOR ANY MEDICAL USE. 

BASED UPON THE NAS-NRC REPORTS AND ITS OWN EVALUATION, FDA GAVE
NOTICE OF OPPORTUNITY FOR HEARING ON ITS PROPOSAL TO WITHDRAW APPROVALS
OF NDA'S FOR ALL DRUGS CONTAINING THESE COMPOUNDS, ALONE OR IN
COMBINATION WITH OTHER DRUGS.  PETITIONER THEREUPON BROUGHT SUIT IN THE
DISTRICT COURT, ASKING FOR A DECLARATORY JUDGMENT THAT ITS DRUGS ARE
EXEMPT FROM THE EFFICACY REQUIREMENTS UNDER ^ 107(C) (4).  THE
ADMINISTRATIVE PROCEEDINGS WENT FORWARD, FDA REFUSING A STAY PENDING
THE JUDICIAL PROCEEDINGS.  PETITIONER SUBMITTED NO EVIDENCE OF
"ADEQUATE AND WELL-CONTROLLED INVESTIGATIONS" AS REQUIRED BY ^ 505 (D)
OF THE ACT, 21 U.S.C. ^ 355(D), TO SUPPORT ITS CLAIMS OF
EFFECTIVENESS.  THE COMMISSIONER MADE FINDINGS AND WITHDREW
PETITIONER'S NDA'S. 

IN THE DISTRICT COURT PETITIONER CONTENDED THAT THE DRUGS WERE
EXEMPT FROM REGULATION BY REASON OF ^ 107(C) (4) OF THE 1962
AMENDMENTS, WHICH PROVIDES: 

     "IN THE CASE OF ANY DRUG WHICH, ON THE DAY IMMEDIATELY

  PRECEDING THE ENACTMENT DATE, (A) WAS COMMERCIALLY USED OR SOLD

IN THE UNITED STATES, (B) WAS NOT A NEW DRUG AS DEFINED BY

  SECTION 201(P) OF THE BASIC ART AS THEN IN FORCE, AND (C) WAS NOT

  COVERED BY AN EFFECTIVE APPLICATION UNDER SECTION 505 OF THAT

  ACT, THE AMENDMENTS TO SECTION 201(P) MADE BY THIS ACT SHALL NOT

  APPLY TO SUCH DRUG WHEN INTENDED SOLELY FOR USE UNDER CONDITIONS

  PRESCRIBED, RECOMMENDED, OR SUGGESTED IN LABELING WITH RESPECT TO

  SUCH DRUG ON THAT DAY." 

THE DISTRICT COURT FOUND THAT TWO OF THE PRODUCTS HAD NEVER BEEN
COVERED BY EFFECTIVE NDA'S AND THAT, WHILE SEVEN HAD BEEN COVERED,
THEIR APPLICATIONS HAD LATER BEEN WITHDRAWN BY PETITIONER.  IT FOUND
THAT THE PRODUCTS WERE "SAFE" FOR USE IN TREATING ABNORMAL CAPILLARY
PERMEABILITY AND FRAGILITY.  IT THEREFORE CONCLUDED THAT, AS OF THE DAY
THE 1962 AMENDMENTS BECAME EFFECTIVE, PETITIONER'S PRODUCTS WERE NOT
NEW DRUGS, WERE NOT COVERED BY EFFECTIVE APPLICATIONS WITHIN THE
MEANING OF ^ 107(C) (4), AND HENCE WERE EXEMPT FROM THE EFFECTIVENESS
CRITERION ADDED TO THE REGULATORY PROVISIONS OF ^^ 505 AND 201(P), 21
U.S.C. ^^ 355 AND 321(P).  IN SO RULING, THE DISTRICT COURT NECESSARILY
DETERMINED THAT IT, AND NOT THE FOOD AND DRUG ADMINISTRATION, HAD
JURISDICTION TO DECIDE EXEMPTION QUESTIONS. 

THE COURT OF APPEALS AGREED THAT THE DISTRICT COURT ALONE HAD
JURISDICTION BUT REVERSED ON THE MERITS.  /1/  461 F.2D 223.  IT HELD
THAT NONE OF PETITIONER'S BIOFLAVONOID DRUGS WERE ENTITLED TO EXEMPTION
UNDER ^ 107(C) (4).  AS TO THE SEVEN FOR WHICH NDA'S HAD BEEN FILED, IT
HELD THAT AN APPLICANT COULD NOT WITHDRAW AN NDA ONCE IT BECAME
EFFECTIVE.  IT CONCLUDED THAT EVEN IF THE DRUGS WERE GENERALLY
RECOGNIZED AS SAFE ON THE DAY PRECEDING THE EFFECTIVE DATE OF THE 1962
ACT, THEY WERE "COVERED BY AN EFFECTIVE APPLICATION" WITHIN THE MEANING
OF ^ 107(C) (4) (C) AND THUS WERE NOT EXEMPT FROM THE 1962 AMENDMENTS. 
AS TO THE "ME-TOO" DRUGS, THOSE SPECIFIC DRUGS FOR WHICH PETITIONER HAD
NOT FILED AN NDA, THE COURT OF APPEALS HELD THAT ALTHOUGH THE "ME-TOOS"
OF OTHER MANUFACTURERS COMPETING WITH PETITIONER'S BIOFLAVONOIDS WOULD
BE EXEMPT, PETITIONER'S "ME-TOOS" WERE NOT EXEMPT BECAUSE THE NDA'S
COVERING THE PIONEER DRUGS PREPARED BY PETITIONER COVERED ALL OF ITS
PRODUCTS SIMILAR IN FORMULA AND LABELING.  WHILE THE GOVERNMENT AGREES
THAT PETITIONER "ME-TOO" PRODUCTS SHOULD BE ACCORDED THE SAME TREATMENT
AS THE "ME-TOOS" OF OTHER MANUFACTURERS WHO HAD NEVER FILED NDA'S, THE
PARTIES ARE AT ODDS ON OTHER ISSUES.  /2/ 

THE RESOLUTION OF THE QUESTIONS PRESENTED TURNS ESSENTIALLY ON THE
MEANING OF ^ 107(C) (4), QUOTED ABOVE.  BUT AS BACKGROUND FOR THE
PROBLEM OF CONSTRUCTION, REFERECNES SHOULD BE MADE TO OTHER 1962
AMENDMENTS.  SECTION 201(P) /3/  WAS AMENDED TO REDEFINE A "NEW DRUG"
AS ONE NOT GENERALLY RECOGNIZED BY EXPERTS AS BOTH SAFE AND EFFECTIVE
FOR USE UNDER THE CONDITIONS PRESCRIBED OR ONE THAT HAS NOT BEEN USED
TO A MATERIAL EXTENT AND FOR A MATERIAL TIME.  SECTION 505(A) WAS
AMENDED TO REQUIRE AFFIRMATIVE APPROVAL OF FDA, WHERE PREVIOUSLY IT HAD
PROVIDED THAT AN NDA WOULD AUTOMATICALLY BECOME EFFECTIVE UNLESS A
CONTRARY ORDER WERE ISSUED.  /4/  SECTION 505(D) /5/  WAS AMENDED TO
REQUIRE DISAPPROVAL OF AN APPLICATION IF THERE IS "A LACK OF
SUBSTANTIAL EVIDENCE THAT THE DRUG WILL HAVE THE EFFECT IT PURPORTS OR
IS REPRESENTED TO HAVE."  SECTION 505(E) WAS AMENDED TO REQUIRE THAT
ANY PREVIOUS APPROVAL OF AN APPLICATION BE WITHDRAWN WHENEVER IT
APPEARS FROM NEW INFORMATION OR OTHERWISE THAT THERE IS A LACK OF
SUBSTANTIAL EVIDENCE OF THE DRUG'S EFFECTIVENESS. 

THERE REMAINED THE PROBLEM OF THE APPLICATION OF THE NEW DRUG
EFFICACY PROVISIONS TO DRUGS ALREADY ON THE MARKET.  WITHOUT
TRANSITIONAL PROTECTION ALL DRUGS -- EXCEPT THOSE MARKETED PRIOR TO THE
1938 ACT WHOSE LABELING HAD NOT BEEN CHANGED AND WHICH WERE EXEMPT FROM
THE "NEW DRUG" PROVISION OF ^ 201(P) -- WOULD HAVE BEEN IN VIOLATION OF
THE AMENDED ACT UNLESS GENERALLY RECOGNIZED AS EFFECTIVE.  EVEN NDA'S
WHICH WERE OUTSTANDING WOULD HAVE BECOME INEFFECTIVE BECAUSE FDA HAD
NOT APPROVED THEM UNDER THE NEW CRITERIA.  SECTION 107(C) (2) OF THE
AMENDMENTS THEREFORE PROVIDES THAT APPLICATIONS WHICH WERE EFFECTIVE ON
THE DAY BEFORE THE ENACTMENT DATE OF THE 1962 AMENDMENTS SHOULD BE
DEEMED "APPROVED."  SECTION 107(C) (2) THUS ELIMINATED THE NECESSITY TO
REVIEW AND APPROVE EVERY APPLICATION ALREADY ON FILE. 

FILE WHOSE LABELING REMAINS UNCHANGED ARE NOT AFFECTED BY THE AMENDED
PROVISIONS OF ^ 505(B) OR BY APPROVALS OR REFUSALS UNDER ^ 505(D)
INSOFAR AS THE EFFECTIVENESS OF THE DRUGS IS CONCERNED, SO LONG AS THE
APPLICATION IS NOT WITHDRAWN OR SUSPENDED UNDER ^ 505(E).  IT ALSO
PROVIDES THAT THE NEW EFFECTIVENESS REQUIREMENT IN THE WITHDRAWAL
PROVISION WOULD NOT APPLY UNTIL TWO YEARS AFTER THE AMENDEMENTS WERE
ADOPTED, OR UNTIL THE NDA APPROVAL WERE WITHDRAWN FOR REASONS OTHER
THAN LACK OF THE DRUG'S EFFECTIVENESS, WHICHEVER CAME FIRST.  IT SEEMS
APPARENT THAT BY REASON OF ^ 107(C) (3) THE INDUSTRY WAS ASSURED IT
COULD CONTINUE TO MARKET PREVIOUSLY APPROVED NDA'S UNLESS AND UNTIL THE
NDA WAS WITHDRAWN AND THAT BEFORE SUCH WITHDRAWAL THEY WOULD BE GIVEN A
MINIMUM OF TWO YEARS WITHIN WHICH TO SUBMIT "SUBSTANTIAL EVIDENCE" TO
SUPPORT THE CLAIMS FOR THEIR PRODUCTS. 

REQUIREMENTS SO LONG AS THEIR COMPOSITION AND LABELING REMAINED
UNCHANGED.  THIS EXEMPTION, HOWEVER, APPLIES ONLY TO A PRODUCT THAT, ON
THE DAY BEFORE THE 1962 AMENDMENTS BECAME EFFECTIVE, (A) WAS USED OR
SOLD COMMERCIALLY IN THE UNITED STATES, (B) WAS GENERALLY RECOGNIZED BY
THE EXPERTS AS SAFE; AND (C) WAS NOT "COVERED" BY AN "EFFECTIVE"
APPLICATION. 

THE FIRST QUESTION IS, WHICH "ME-TOO" COPIES OF AN NDA DRUG ARE
SUBJECT TO THE EFFICACY REQUIREMENTS TO THE SAME EXTENT AS THE NDA
PRODUCT ITSELF?  ARE ONLY THE "ME-TOOS" OF THE SAME MANUFACTURER
"COVERED" BY AN EFFECTIVE APPLICATION WITHIN THE MEANING OF ^ 107 (C)
(4) (C) AND THUS NOT EXEMPT FROM ^ 201(P) OR ARE NO "ME-TOOS" EXEMPT
WHOEVER MANUFACTURES THEM?  IT SEEMS CLEAR THAT ^ 107(C) WAS DESIGNED
IN GENERAL TO MAKE THE NEW 1962 REQUIREMENTS APPLICABLE TO DRUGS THEN
ON THE MARKET AFTER A TWO-YEAR GRACE PERIOD.  SECTION 107(C) (4)
CREATED AN EXCEPTION FROM THIS GENERAL POLICY.  SENATOR EASTLAND
EXPLAINED THESE "TRANSITIONAL PROVISIONS," STATING:  "ESTABLISHED DRUGS
WHICH HAVE NEVER BEEN REQUIRED TO GO THROUGH NEW DRUG PROCEDURES WILL
NOT BE AFFECTED BY THE NEW EFFECTIVENESS TEST INSOFAR AS THEIR EXISTING
CLAUSES ARE CONCERNED."  /6/  IT IS TRUE THAT AN NDA COVERS A
PARTICULAR PRODUCT OR PRODUCTS THAT IT NAMES AND THAT ^ 505 WHEN
APPLIED TO AN NDA IS PERSONAL TO THE MANUFACTURER WHO FILES IT.
PRODUCTS.  BUT WE AGREE WITH THE GOVERNMENT THAT "ANY DRUG"  WHEN USED
IN ^ 107(C) (4) IS USED IN THE GENERIC SENSE, WHICH MEANS THAT THE "ME
TOOS," WHETHER PRODUCTS OF THE SAME OR OF DIFFERENT MANUFACTURERS
"COVERED" BY AND "EFFECTIVE" NDA, ARE NOT EXEMPT FROM THE EFFICACY
REQUIREMENTS OF ^ 201(P).  IF THAT WERE NOT TRUE, THEN, AS THE COURT OF
APPEALS SAID, THE "ME-TOOS" OF ONE MANUFACTURER COVERED BY AN NDA OF
ANOTHER MANUFACTURER WOULD BE EXEMPT FROM REGULATION, WHILE THE "ME
TOOS" OF THE MANUFACTURER HOLDING THE NDA COULD BE REGULATED.  THAT
SEEMS TO BE A READING OF ^ 107(C) (4) THAT IS DISCRIMINATORY AND
NEEDLESSLY SO.  FOR IT IS AVOIDED BY TAKING "ANY DRUG" IN THAT
SUBSECTION AS A GENERIC TERMS.  THE TRANSITIONAL NATURE OF ^ 107(C)
WORKS IN THAT DIRECTION.  A READING TO EXCLUDE ALL "ME-TOO" DRUGS FROM
THE WORD "COVERED" AS USED IN ^ 107(C) (4) WOULD CREATE A HIATUS IN THE
REGULATORY SCHEME FOR WHICH THERE SEEMS TO BE NO COGENT REASON.  WE
FIND NO PERSUASIVE REASON TO RESOLVE THE AMBIGUITIES IN FAVOR OF THE
MANUFACTURERS SO THAT PRE-EXISTING PIONEER DRUGS WOULD BE SUBJECT TO
THE NEW EFFICACY REQUIREMENTS BUT THE "ME-TOOS" WHICH OFTEN DO EQUAL
SERVICE FOR THEM WOULD ESCAPE THE THRUST OF THE 1962 AMENDMENTS.  THAT
RESOLUTION OF THE AMBIGUITIES WOULD LARGELY LEAVE PRE-1962 DRUGS OF
UNPROVED EFFECTIVENESS UNTOUCHED BY THE 1962 AMENDMENTS AND PERPETUATE
A COMPETITIVE CONTEST IN THE MARKETING OF INEFFECTIVE PRE-1962 DRUGS. 
FDA WOULD, OF COURSE, HAVE AUTHORITY TO PURSUE THAT CATEGORY OF DRUGS
UNDER THE MISBRANDING PROVISIONS OF THE ACT.  BUT THAT SLOW, CUMBERSOME
METHOD IS UTTERLY UNSUITED TO THE NEED.  WE DECLINE TO ATTRIBUTE SUCH A
SELF-DEFEATING PURPOSE TO THE CONGRESS.  AFTER ALL, THE 1962 REGULATORY
SCHEME PROPOSES ADMINISTRATIVE CONTROL THROUGH AN EXPERT AGENCY IN LIEU
OF THE MORE CUMBERSOME 1938 DEVICES, AS A RESULT OF WHICH, "GOOD
MEDICAL PRACTICE IS HAMPERED, AND THE CONSUMER IS MISLED UNTIL, PERHAPS
YEARS LATER, THE GOVERNMENT HAS GATHERED THE NECESSARY EVIDENCE TO
SUSTAIN ITS BURDEN OF PROVING THE VIOLATION IN COURT."  /7/ 

PETITIONER, FOCUSING ON PRESCRIPTION DRUGS, /8/  CONTENDS THAT THE
CONSTRUCTION OF ^ 107(C) (4) URGED BY THE GOVERNMENT WOULD MAKE THE
EXEMPTION MEANINGLESS.  PRESCRIPTION DRUGS, AS FDA POINTS OUT, ARE NOT
LIKELY TO HAVE COME ON THE MARKET SUBSEQUENT TO 1938 WITHOUT BEING A
"NEW DRUG" FOR SOME TIME.  BUT THE OVER-THE-COUNTER (OTC) DRUGS, KNOWN
AS THE PROPRIETARIES, ARE OFTEN MADE UP OF OLD, ESTABLISHED
INGREDIENTS.  SUCH PRODUCTS, COMING ON THE MARKET FOR THE FIRST TIME
BETWEEN 1938 AND 1962, MIGHT NEVER HAVE BEEN SUBJECT TO NEW DRUG
REGULATION.  IF SO, THEY WOULD BE ENTITLED TO THE EXEMPTION PROVIDED BY
^ 107(C) (4).  SENATOR KEFAUVER, THE MAIN SPONSOR OF THE 1962 ACT,
DEPLORED THE ABSENCE IN AN EARLIER BILL OF THE FAILURE TO SUBMIT
PROPRIETARIES ON THE MARKET TO TESTS OF EFFICACY.  HE SAID: 

     "EFFECTIVENESS, AS WELL AS SAFETY, SHOULD APPLY TO NEW

  PROPRIETARY DRUGS, BUT PROPRIETARIES NOW ON THE MARKET ARE NOT TO

  BE SUBJECT UNDER THE PRESENT BILL TO THE PROVISIONS REQUIRING

  THEM, UPON NOTICE BY THE FOA (SIC), TO SUPPORT THEIR CLAIMS FOR

  EFFECTIVENESS.  I THINK THEY SHOULD BE SO REQUIRED.  THAT IS A

  MATTER WHICH CAN BE REMEDIED IN CONFERENCE OR BY OTHER

  LEGISLATION."  /9/ 

IT CAN BE INFERRED FROM THIS STATEMENT THAT PRESCRIPTION DRUGS ON
THE MARKET WERE TO BE SUBJECTED TO THE EFFICACY REQUIREMENTS.  IF THE
1962 AMENDMENTS ARE TO BE COMPREHENSIVELY MEANINGFUL, WE DECLINE TO
READ ^ 107(C) (4) SO AS TO PROVIDE A LOOPHOLE SO THAT THE MANUFACTURERS
CAN GO ON MARKETING DRUGS PREVIOUSLY SUBJECT TO NEW DRUG REGULATION
WITHOUT DEMONSTRATING BY THE NEW STATUTORY STANDARDS THAT THEY ARE
EFFECTIVE AS CLAIMED. 

THE SECOND QUESTION PRESENTED BY THIS CASE IS WHETHER AN APPLICANT
COULD HAVE WITHDRAWN OR "DEACTIVATED" AN NDA PRIOR TO THE 1962
AMENDMENTS SO THAT ITS DRUG WAS NO LONGER "COVERED BY AN EFFECTIVE
APPLICATION" AND THUS IS NOW EXEMPT FROM EFFICACY REGULATION BY REASON
OF ^ 107(C) (4).  PETITIONER IN 1961 HAD STATED IN A LETTER TO THE
DIRECTOR OF NEW DRUG BRANCH OF THE BUREAU OF MEDICINE IN FDA THAT "(IT
IS OUR RECOLLECTION THAT THE C. V. P. CLASS OF PRODUCTS WERE NO LONGER
CONSIDERED TO BE NEW DRUGS . . ."  PETITIONER IN 1961 ALSO STOPPED
FILING SUPPLEMENTAL INFORMATION AS REQUIRED BY REGULATION WITH REGARD
TO THE PRODUCTS FOR WHICH NDA'S HAD BECOME EFFECTIVE.  IT CLAIMS THAT
THESE ACTS WERE SUFFICIENT TO WITHDRAW THE NDA'S AND TO BRING ITS
PRODUCTS WITHIN THE EXEMPTION.     INITIALLY, WE REPEAT THAT THE
LEGISLATIVE HISTORY INDICATES THAT IT WAS CONGRESS' PURPOSE TO EXEMPT
ONLY THOSE DRUGS THAT NEVER HAD BEEN SUBJECT TO THE NEW DRUG
REGULATION.  /10/  QUITE OBVIOUSLY, ANY DRUG FOR WHICH AN NDA ONCE HAD
BEEN EFFECTIVE DOES NOT FALL WITHIN THAT CATEGORY. 

CONGRESS REJECTED AN APPROACH THAT WOULD HAVE EXEMPTED FROM THE
EFFICACY REQUIREMENTS OF THE 1962 AMENDMENTS ALL DRUGS THEN MARKETED
WHICH HAD BECOME GENERALLY RECOGNIZED AS SAFE.  IT NOW WOULD BE
IRRATIONAL FOR US TO CONSTRUE ^ 107(C) (4) OF THE AMENDMENTS TO EXEMPT
A DRUG MERELY BECAUSE THE MANUFACTURER HAD TAKEN SOME FORMAL STEPS
TOTALLY UNRELATED TO THE DRUG'S EFFECTIVENESS TO INDICATE THAT THE DRUG
WAS NO LONGER A "NEW DRUG" UNDER THE PRE-1962 STANDARDS.  THE RESULT
WOULD BE THAT SOME DRUGS FOR WHICH AN NDA HAD BEEN FILED WOULD BE
SUBJECT TO THE EFFICACY REQUIREMENTS AND SOME WOULD NOT, EVEN THOUGH
ONE COULD NOT DIFFERENTIATE BETWEEN THE DRUGS ON THE GROUNDS OF
EFFECTIVENESS.  FOR EXAMPLE, 43 NDA'S HAD BEEN FILED WITH RESPECT TO
BIOFLAVONOIDS AND RELATED COMPOUNDS.  THERE IS NO REASON TO BELIEVE
THAT ANY PRODUCT IS MORE OR LESS EFFECTIVE THAN ANOTHER.  ACCORDING TO
THE SOLICITOR GENERAL, THE "STATE OF ACTIVITY, INACTIVITY, OR
WITHDRAWAL" OF THE APPLICATIONS VARIED FROM ONE TO THE NEXT WHEN THE
1962 AMENDMENTS BECAME EFFECTIVE.  IT WOULD BE TOTALLY INCONSISTENT
WITH THE STATUTORY SCHEME AND THE POLICY UNDERLYING THE 1962
AMENDMENTS, AS WELL AS PATENTLY UNJUST, TO CONCLUDE THAT SOME
MANUFACTURERS COULD CONTINUE TO MARKET THEIR BIOFLAVONOID PRODUCTS, BUT
OTHERS COULD NOT.  WE CANNOT ATTRIBUTE SUCH AN INTENTION TO CONGRESS
AND, ACCORDINGLY, CANNOT AGREE WITH PETITIONER THAT ITS NDA'S HAD BEEN
WITHDRAUN PRIOR TO 1962 SO THAT ITS BIOFLAVONOID PRODUCTS WERE NO
LONGER "COVERED BY AN EFFECTIVE APPLICATION." 

          AFFIRMED. 

/1/  UNLIKE THE SITUATION IN CIBA CORP. V. WEINBERGER, ANTE, P. 640,
THE ORDER TO THE COMMISSIONER WITHDRAWING PETITIONER'S NDA'S HAD NOT
BECOME FINAL PRIOR TO THE DISTRICT COURT'S ASSUMING JURISDICTION.  IN
FACT, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
REVERSED THE COMMISSIONER'S DECISION, 151 U.S. APP. D. C. 284, 466 F.2D
455, AND THE PROCEEDINGS ON REMAND ARE NOW PENDING BEFORE THE
COMMISSION.  THUS, PETITIONER WAS NOT BARRED FROM PROCEEDING IN THE
DISTRICT COURT.  CF. CIBA CORP. V. WEINBERGER, SUPRA.  OUR DECISION
TODAY IS NOT MEANT TO INDICATE THAT THE DISTRICT COURT, HAD IT
CONCLUDED THAT ITS JURISDICTION WAS CONCURRENT WITH THAT OF FDA, WOULD
NOT HAVE ABUSED ITS DISCRETION IN REFUSING TO STAY THIS ACTION PENDING
THE OUTCOME OF ADMINISTRATIVE PROCEEDINGS.  CF. WEINBERGER V. BENTEX
PHARMACEUTICALS, INC., ANTE, P. 645.  THE COURT OF APPEALS BELOW FOUND
IT UNNECESSARY TO CONSIDER WHETHER PETITIONER HAD FAILED TO EXHAUST ITS
ADMINISTRATIVE REMEDIES.  461 F.2D, AT 226. 

/2/  THERE LURKS IN THE CASE A QUESTION WHETHER A DRUG COULD HAVE
BEEN UNSAFE PRIOR TO THE 1962 AMENDMENTS BECAUSE IT WAS INEFFECTIVE IN
TREATING THE CONDITIONS FOR WHICH ITS USE WAS RECOMMENDED BY THE
LABEL.  THAT QUESTION, HOWEVER, WAS NOT PRESENTED IN THE PETITION FOR
CERTIORARI. 

/3/  "THE TERM 'NEW DRUG' MEANS -- 

"(1) ANY DRUG (EXCEPT A NEW ANIMAL DRUG OR AN ANIMAL FEED BEARING OR
CONTAINING A NEW ANIMAL DRUG) THE COMPOSITION OF WHICH IS SUCH THAT
SUCH DRUG IS NOT GENERALLY RECOGNIZED, AMONG EXPERTS QUALIFIED BY
SCIENTIFIC TRAINING AND EXPERIENCE TO EVALUATE THE SAFETY AND
EFFECTIVENESS OF DRUGS, AS SAFE AND EFFECTIVE FOR USE UNDER THE
CONDITIONS PRESCRIBED, RECOMMENDED, OR SUGGESTED IN THE LABELING
THEREOF, EXCEPT THAT SUCH A DRUG NOT SO RECOGNIZED SHALL NOT BE DEEMED
TO BE A 'NEW DRUG' IF AT ANY TIME PRIOR TO THE ENACTMENT OF THIS
CHAPTER IT WAS SUBJECT TO THE FOOD AND DRUGS ACT OF JUNE 30, 1906, AS
AMENDED, AND IF AT SUCH TIME ITS LABELING CONTAINED THE SAME
REPRESENTATIONS CONCERNING THE CONDITIONS OF ITS USE; OR 

"(2) ANY DRUG (EXCEPT A NEW ANIMAL DRUG OR AN ANIMAL FEED BEARING OR
CONTAINING A NEW ANIMAL DRUG) THE COMPOSITION OF WHICH IS SUCH THAT
SUCH DRUGS, AS A RESULT OF INVESTIGATIONS TO DETERMINE ITS SAFETY AND
EFFECTIVENESS FOR USE UNDER SUCH CONDITIONS, HAS BECOME SO RECOGNIZED,
BUT WHICH HAS NOT, OTHERWISE THAN IN SUCH INVESTIGATIONS, BEEN USED TO
A MATERIAL EXTENT OR FOR A MATERIAL TIME UNDER SUCH CONDITIONS."  21
U.S.C. ^ 321(P). 

/4/  SECTION 505(C) PROVIDES: 

"WITHIN ONE HUNDRED AND EIGHTY DAYS AFTER THE FILING OF AN
APPLICATION UNDER THIS SUBSECTION, OR SUCH ADDITIONAL PERIOD AS MAY BE
AGREED UPON BY THE SECRETARY AND THE APPLICANT, THE SECRETARY SHALL
EITHER -- 

"(1) APPROVE THE APPLICATION IF HE THEN FINDS THAT NONE OF THE
GROUNDS FOR DENYING APPROVAL SPECIFIED IN SUBSECTION (D) APPLIES, OR 

"(2) GIVE THE APPLICANT NOTICE OF AN OPPORTUNITY FOR A HEARING
BEFORE THE SECRETARY UNDER SUBSECTION (D) . . . ON THE QUESTION WHETHER
SUCH APPLICATION IS APPROVABLE.  IF THE APPLICANT ELECTS TO ACCEPT THE
OPPORTUNITY FOR HEARING BY WRITTEN REQUEST WITHIN THIRTY DAYS AFTER
SUCH NOTICE, SUCH HEARING SHALL COMMENCE NOT MORE THAN NINETY DAYS
AFTER THE EXPIRATION OF SUCH THIRTY DAYS UNLESS THE SECRETARY AND THE
APPLICANT OTHERWISE AGREE.  ANY SUCH HEARING SHALL THEREAFTER BE
CONDUCTED ON AN EXPEDITED BASIS AND THE SECRETARY'S ORDER THEREON SHALL
BE ISSUED WITHIN NINETY DAYS AFTER THE DATE FIXED BY THE SECRETARY FOR
FILING FINAL BRIEFS."  21 U.S.C. ^ 355(C). 

/5/  THAT SECTION PROVIDES: 

"IF THE SECRETARY FINDS, AFTER DUE NOTICE TO THE APPLICANT IN
ACCORDANCE WITH SUBSECTION (C) . . . AND GIVING HIM AN OPPORTUNITY FOR
A HEARING, IN ACCORDANCE WITH SAID SUBSECTION, THAT (1) THE
INVESTIGATIONS, REPORTS OF WHICH ARE REQUIRED TO BE SUBMITTED TO THE
SECRETARY PURSUANT TO SUBSECTION (B) . . ., DO NOT INCLUDE ADEQUATE
TESTS BY ALL METHODS REASONABLY APPLICABLE TO SHOW WHETHER OR NOT SUCH
DRUG IS SAFE FOR USE UNDER THE CONDITIONS PRESCRIBED, RECOMMENDED, OR
SUGGESTED IN THE PROPOSED LABELING THEREOF; (2) THE RESULTS OF SUCH
TESTS SHOW THAT SUCH DRUG IS UNSAFE FOR USE UNDER SUCH CONDITIONS; (3)
THE METHODS USED IN, AND THE FACILITIES AND CONTROLS USED FOR, THE
MANUFACTURE, PROCESSING, AND PACKING OF SUCH DRUG ARE INADEQUATE TO
PRESERVE ITS IDENTITY, STRENGTH, QUALITY, AND PURITY; (4) UPON THE
BASIS OF THE INFORMATION SUBMITTED TO HIM AS PART OF THE APPLICATION,
OR UPON THE BASIS OF ANY OTHER INFORMATION BEFORE HIM WITH RESPECT TO
SUCH DRUG, HE HAS INSUFFICIENT INFORMATION TO DETERMINE WHETHER SUCH
DRUG IS SAFE FOR USE UNDER SUCH CONDITIONS; OR (5) EVALUATED ON THE
BASIS OF THE INFORMATION SUBMITTED TO HIM AS PART OF THE APPLICATION
AND ANY OTHER INFORMATION BEFORE HIM WITH RESPECT TO SUCH DRUG, THERE
IS A LACK OF SUBSTANTIAL EVIDENCE THAT THE DRUG WILL HAVE THE EFFECT IT
PURPORTS OR IS REPRESENTED TO HAVE UNDER THE CONDITIONS OF USE
PRESCRIBED, RECOMMENDED, OR SUGGESTED IN THE PROPOSED LABELING THEREOF;
OR (6) BASED ON A FAIR EVALUATION OF ALL MATERIAL FACTS, SUCH LABELING
IS FALSE OR MISLEADING IN ANY ARTICULAR; HE SHALL ISSUE AN ORDER
REFUSING TO APPROVE THE APPLICATION.  IF, AFTER SUCH NOTICE AND
OPPORTUNITY FOR HEARING, THE SECRETARY FINDS THAT CLAUSES (1) THROUGH
(6) DO NOT APPLY, HE SHALL ISSUE AN ORDER APPROVING THE APPLICATION. 
AS USED IN THIS SUBSECTION AND SUBSECTION (E) . . ., THE TERM
'SUBSTANTIAL EVIDENCE' MEANS EVIDENCE CONSISTING OF ADEQUATE AND WELL
CONTROLLED INVESTIGATIONS, INCLUDING CLINICAL INVESTIGATIONS, BY
EXPERTS QUALIFIED BY SCIENTIFIC TRAINING AND EXPERIENCE TO EVALUATE THE
EFFECTIVENESS OF THE DRUG INVOLVED, ON THE BASIS OF WHICH IT COULD
FAIRLY AND RESPONSIBLY BE CONCLUDED BY SUCH EXPERTS THAT THE DRUG WILL
HAVE THE EFFECT IT PURPORTS OR IS REPRESENTED TO HAVE UNDER THE
CONDITIONS OF USE PRESCRIBED, RECOMMENDED, OR SUGGESTED IN THE LABELING
OR PROPOSED LABELING THEREOF."  21 U.S.C. ^ 355(D). 

/6/  108 CONG. REC. 17366. 

/7/  H. R. REP. NO. 2464, 87TH CONG., 2D SESS., P. 3. 

/8/  PRESCRIPTION DRUGS, AS DEFINED BY ^ 503(B), 21 U.S.C. ^ 353(B),
INCLUDE ANY DRUG FOR HUMAN USE WHICH (A) IS HABIT FORMING; (B) "BECAUSE
OF ITS TOXICITY OR OTHER POTENTIALITY FOR HARMFUL EFFECT, OR THE METHOD
OF ITS USE, OR THE COLLATERAL MEASURES NECESSARY TO ITS USE, IS NOT
SAFE FOR USE EXCEPT UNDER THE SUPERVISION OF A PRACTITIONER LICENSED BY
LAW TO ADMINISTER SUCH DRUG"; OR (C) IS LIMITED TO PRESCRIPTION USE IN
THE APPLICATION UNDER ^ 505. 

/9/  108 CONG. REC. 17368. 

/10/  SEE S. REP. NO. 1744, 87TH CONG., 2D SESS., PT. 2, P. 8; H. R.
REP. NO. 2464, 87TH CONG., 2D SESS., 12; H. R. REP. NO. 2526, 87TH
CONG., 2D SESS., 22 - 23; 108 CONG. REC. 17366. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.  MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THIS
CASE. 

JOEL E. HOFFMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE ROBERT L. WALD, PHILIP ELMAN, AND PHILIP J. FRANKS. 

DEPUTY SOLICITOR GENERAL FRIEDMAN AND ANDREW L. FREY ARGUED THE
CAUSE FOR RESPONDENTS.  WITH MR. FREY ON THE BRIEFS WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL KAUPER, DEPUTY SOLICITOR
GENERAL WALLACE, HOWARD E. SHAPIRO, AND PETER BARTON HUTT. 

LLOYD N. CUTLER, DANIEL MARCUS, AND WILLIAM T. LAKE FILED A BRIEF
FOR PHARMACEUTICAL MANUFACTURERS ASSN. AS AMICUS CURIAE URGING
REVERSAL. 

BRUCE J. TERRIS, JOSEPH ONEK, AND PETER H. SCHUCK FILED A BRIEF FOR
AMERICAN PUBLIC HEALTH ASSN. ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 

THOMAS D. FINNEY, JR., THOMAS RICHARD SPRADLIN, AND DANIEL F.
O'KEEFE, JR., FILED A BRIEF FOR THE PROPRIETARY ASSN.  AS AMICUS
CURIAE. 
..END :







UNITED STATES V. SCRAP 412 U.S. 669 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA 

     NO. 72 - 535.  ARGUED FEBRUARY 28, 1973--DECIDED JUNE 18,
1973*

  346 F.SUPP.  189, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 72 - 562, ABERDEEN & ROCKFISH RAILROAD CO. ET AL.
V. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP) ET AL.,
ALSO ON APPEAL FROM THE SAME COURT. 


    THE INTERSTATE COMMERCE ACT PERMITS RAILROADS TO FILE PROPOSED

  FREIGHT RATE INCREASES, WITH AT LEAST 30 DAYS' NOTICE TO THE

  INTERSTATE COMMERCE COMMISSION (ICC) AND THE PUBLIC BEFORE

  PUTTING THE NEW RATES INTO EFFECT.  THE ICC MAY, PURSUANT TO SEC.

  15(7) OF THE ACT, SUSPEND THE OPERATION OF THE PROPOSED RATES FOR

  AS LONG AS SEVEN MONTHS, IN ORDER TO INVESTIGATE THE LAWFULNESS

  OF THE RATES.  AT THE END OF THE SEVEN-MONTH PERIOD, THE CARRIER

  MAY PUT THE SUSPENDED RATES INTO EFFECT UNLESS THE ICC HAS

COMPLETED ITS INVESTIGATION AND FOUND THE RATES UNLAWFUL. 

 PROCEEDING UNDER THE STATUTORY SCHEME, SUBSTANTIALLY ALL THE

  NATION'S RAILROADS SOUGHT A 2.5% SURCHARGE ON NEARLY ALL FREIGHT

  RATES, AS AN EMERGENCY MEASURE TO OBTAIN INCREASED REVENUES

  PENDING ADOPTION OF SELECTIVE RATE INCREASES ON A PERMANENT

  BASIS.  SHIPPERS, COMPETING CARRIERS, AND OTHER INTERESTED

  PERSONS REQUESTED THE ICC TO SUSPEND THE TARIFF FOR THE STATUTORY

  SEVEN-MONTH PERIOD.  VARIOUS ENVIRONMENTAL GROUPS, INCLUDING

  STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP) AND THE

  ENVIRONMENTAL DEFENSE FUND, APPELLEES HERE, PROTESTED THAT

  FAILURE TO SUSPEND THE SURCHARGE WOULD CAUSE THEIR MEMBERS

  "ECONOMIC, RECREATIONAL AND AESTHETIC HARM," AND SPECIFICALLY,

 THAT THE NEW RATE STRUCTURE WOULD DISCOURAGE THE USE OF

 "RECYCLABLE" MATERIALS AND PROMOTE THE USE OF RAW MATERIALS THAT

  COMPETE WITH SCRAP, THUS ADVERSELY AFFECTING THE ENVIRONMENT.  ON

  FEBRUARY 1, 1972, THE ICC ISSUED AN ORDER ANNOUNCING ITS DECISION

  NOT TO SUSPEND THE SURCHARGE FOR THE SEVEN-MONTH PERIOD, AND ON

  APRIL 24, 1972, ORDERED THE PROPOSED SELECTIVE INCREASES FILED BY

  THE CARRIERS TO BE SUSPENDED FOR THE FULL SEVEN-MONTH PERIOD

  ENDING NOVEMBER 30, 1972, AND PERMITTED THE COLLECTION OF THE

  SURCHARGE UNTIL THAT DATE.  SCRAP FILED THE PRESENT SUIT SEEKING,

  INTER ALIA, AN INJUNCTION TO RESTRAIN ENFORCEMENT OF THE FEBRUARY

  1 AND APRIL 24 ORDERS ALLOWING THE CARRIERS TO COLLECT THE

  SURCHARGE.  SCRAP, AN UNINCORPORATED ASSOCIATION FORMED BY FIVE

  LAW STUDENTS TO ENHANCE THE QUALITY OF THE ENVIRONMENT, CLAIMED

  THAT ITS MEMBERS "SUFFERED ECONOMIC, RECREATIONAL AND AESTHETIC

  HARM DIRECTLY AS A RESULT OF THE ADVERSE ENVIRONMENTAL IMPACT OF

  THE RAILROAD FREIGHT STRUCTURE," THAT EACH OF ITS MEMBERS WAS

  CAUSED TO PAY MORE FOR FINISHED PRODUCTS, THAT EACH OF ITS

MEMBERS USES THE FORESTS, RIVERS, MOUNTAINS, AND OTHER NATURAL

  RESOURCES OF THE WASHINGTON AREA AND AT HIS LEGAL RESIDENCE FOR

  CAMPING, HIKING, FISHING, AND OTHER PURPOSES, AND THAT THESE USES

  HAVE BEEN ADVERSELY AFFECTED BY INCREASED FREIGHT RATES.  THE

  MAIN THRUST OF SCRAP'S COMPLAINT WAS THAT THE ICC'S ORDERS WERE

  UNLAWFUL FOR FAILURE TO INCLUDE A DETAILED ENVIRONMENTAL IMPACT

  STATEMENT AS REQUIRED BY ^ 102(2) (C) OF THE NATIONAL

  ENVIRONMENTAL POLICY ACT OF 1969 (NEPA), 42 U.S.C. ^ 4332(2)

  (C).  THE THREE-JUDGE DISTRICT COURT FOUND THAT APPELLEES HAD

  STANDING TO SUE.  THE COURT HELD THAT ITS POWER TO GRANT AN

  INJUNCTION WAS NOT BARRED BY ARROW TRANSPORTATION CO. V. SOUTHERN

  R. CO., 372 U.S. 658, BECAUSE NEPA "IMPLICITLY CONFERS AUTHORITY

  ON THE FEDERAL COURTS TO ENJOIN ANY FEDERAL ACTION TAKEN IN

  VIOLATION OF NEPA'S PROCEDURAL REQUIREMENTS . . . SO LONG AS THE

  REVIEW IS CONFINED TO A DETERMINATION AS TO WHETHER THE

  PROCEDURAL REQUISITES OF NEPA HAVE BEEN FOLLOWED."  THE COURT

  CONCLUDED THAT THE ICC'S DECISION NOT TO SUSPEND THE SURCHARGE

  FOR THE SEVEN-MONTH PERIOD WAS A "MAJOR FEDERAL ACTION

  SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT,"

  AND GRANTED AN INJUNCTION PROHIBITING THE ICC "FROM PERMITTING"

  AND THE RAILROADS "FROM COLLECTING" THE SURCHARGE "INSOFAR AS

THAT SURCHARGE RELATES TO GOODS BEING TRANSPORTED FOR PURPOSES OF

  RECYCLING."  HELD: 

     1.  APPELLEES' PLEADINGS SUFFICIENTLY ALLEGED THAT THEY WERE

  "ADVERSELY AFFECTED" OR "AGGRIEVED" WITHIN THE MEANING OF ^ 10 OF

  THE ADMINISTRATIVE PROCEDURE ACT TO WITHSTAND A MOTION TO DISMISS

ON THE GROUND OF LACK OF STANDING TO SUE.  SIERRA CLUB V. MORTON,

  405 U.S. 727, DISTINGUISHED.  PP. 683 - 690. 

  (A) STANDING IS NOT CONFINED TO THOSE WHO SHOW ECONOMIC HARM,

  AS "(AESTHETIC AND ENVIRONMENTAL WELL-BEING, LIKE ECONOMIC

  WELL-BEING, ARE IMPORTANT INGREDIENTS OF THE QUALITY OF LIFE IN

  OUR SOCIETY."  SIERRA CLUB, SUPRA, AT 734.  P. 686. 

     (B) HERE, THE APPELLEES CLAIMED THAT THE SPECIFIC AND
ALLEGEDLY

  ILLEGAL ACTION OF THE ICC WOULD DIRECTLY HARM THEM IN THEIR USE

  OF THE NATURAL RESOURCES OF THE WASHINGTON AREA.  PP. 686 - 687. 

     (C) STANDING IS NOT TO BE DENIED BECAUSE MANY PEOPLE SUFFER
THE

  SAME INJURY.  PP. 687 - 688. 

     (D) IT CANNOT BE SAID ON THESE PLEADINGS THAT APPELLEES COULD

  NOT PROVE THEIR ALLEGATIONS, WHICH, IF PROVED, WOULD PLACE THEM

  SQUARELY AMONG THOSE PERSONS INJURED IN FACT BY THE ICC'S ACTION

  AND ENTITLED TO REVIEW UNDER SIERRA CLUB, SUPRA.  PP. 688 - 690. 

     2.  THE DISTRICT COURT LACKED JURISDICTION TO ISSUE THE
INJUNCTION.  PP. 690 - 698. 

     (A) ARROW TRANSPORTATION, SUPRA, HELD THAT CONGRESS IN ^ 15(7)

  HAD VESTED EXCLUSIVE JURISDICTION IN THE ICC TO SUSPEND RATES

  PENDING ITS FINAL DECISION ON THEIR LAWFULNESS AND HAD

  DELIBERATELY EXTINGUISHED JUDICIAL POWER TO GRANT SUCH RELIEF;

  AND THE FACTUAL DISTINCTIONS BETWEEN THE INSTANT CASE AND ARROW

  TRANSPORTATION ARE INCONSEQUENTIAL.  PP. 690 - 692. 

  (B) THE ALLEGED NONCOMPLIANCE BY THE ICC WITH NEPA DID NOT GIVE

  THE DISTRICT COURT AUTHORITY TO GRANT THE INJUNCTION, AS NEPA WAS

  NOT INTENDED TO REPEAL BY IMPLICATION ANY OTHER STATUTE, AND THE

  POLICIES IDENTIFIED IN ARROW TRANSPORTATION AS THE BASIS FOR ^

  15(7) WOULD BE SUBSTANTIALLY UNDERMINED IF THE COURTS WERE FOUND

  TO HAVE SUSPENSION POWERS SIMPLY BECAUSE OF NONCOMPLIANCE WITH

  NEPA.  PP. 692 - 698. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN
AND BLACKMUN, JJ., JOINED; IN PARTS I AND II OF WHICH DOUGLAS AND
MARSHALL, JJ., JOINED; AND IN PARTS I AND III OF WHICH BURGER, C. J.,
AND WHITE AND REHNQUIST, JJ., JOINED.  BLACKMUN, J., FILED A CONCURRING
OPINION, IN WHICH BRENNAN, J., JOINED, POST, P. 699.  DOUGLAS, J.,
FILED AN OPINION DISSENTING IN PART, POST, P. 699.  WHITE, J., FILED AN
OPINION DISSENTING IN PART, IN WHICH BURGER, C. J., AND REHNQUIST, J.,
JOINED, POST, P. 722.  MARSHALL, J., FILED AN OPINION CONCURRING IN
PART AND DISSENTING IN PART, POST, P. 724.  POWELL, J., TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASES. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

UNDER THE INTERSTATE COMMERCE ACT, THE INITIATIVE FOR RATE INCREASES
REMAINS WITH THE RAILROADS.  BUT IN THE ABSENCE OF SPECIAL PERMISSION
FROM THE INTERSTATE COMMERCE COMMISSION, A RAILROAD SEEKING AN INCREASE
MUST PROVIDE AT LEAST 30 DAYS' NOTICE TO THE COMMISSION AND THE PUBLIC
BEFORE PUTTING THE NEW RATE INTO EFFECT.  49 U.S.C. ^ 6(3).  /1/
DURING THAT 30-DAY PERIOD, THE COMMISSION MAY SUSPEND THE OPERATION OF
THE PROPOSED RATE FOR A MAXIMUM OF SEVEN MONTHS PENDING AN
INVESTIGATION AND DECISION ON THE LAWFULNESS OF THE NEW RATES.  49
U.S.C. ^ 15(7).  /2/  AT THE END OF THE SEVEN-MONTH PERIOD, THE CARRIER
MAY PUT THE SUSPENDED RATE INTO EFFECT UNLESS THE COMMISSION HAS
EARLIER COMPLETED ITS INVESTIGATION AND FOUND THE RATE UNLAWFUL.  /3/ 

PROCEEDING UNDER THIS REGULATORY SCHEME, ON DECEMBER 13, 1971,
SUBSTANTIALLY ALL OF THE RAILROADS IN THE UNITED STATES REQUESTED
COMMISSION AUTHORIZATION TO FILE ON 5 DAYS' NOTICE A 2.5% SURCHARGE ON
NEARLY ALL FREIGHT RATES.  THE RAILROADS SOUGHT A JANUARY 1, 1972,
EFFECTIVE DATE FOR THE NEW RATES.  THE SURCHARGE WAS PROPOSED AS AN
INTERIM EMERGENCY MEASURE DESIGNED TO PRODUCE SOME $246 MILLION
ANNUALLY IN INCREASED REVENUES PENDING ADOPTION OF SELECTIVE RATE
INCREASES ON A PERMANENT BASIS. 

AS JUSTIFICATION FOR THE PROPOSED SURCHARGE, THE RAILROADS ALLEGED
INCREASING COSTS AND SEVERELY INADEQUATE REVENUES.  IN ITS LAST GENERAL
REVENUE INCREASE CASE, LESS THAN TWO YEARS EARLIER, THE COMMISSION HAD
FOUND: 

"(THE FINANCIAL CONDITION OF THE RAILROAD INDUSTRY AS A WHOLE, AND
THE FINANCIAL STATUS OF MANY INDIVIDUAL CARRIERS BY RAIL, MUST BE FOUND
TO BE AT A DANGEROUSLY LOW LEVEL.  THE PRECIPITOUS DECLINE IN WORKING
CAPITAL AND SERIOUS LOSS OF LIQUIDITY HAS REDUCED MANY CARRIERS TO A
TRULY MARGINAL OPERATION.  THIS HAS BEEN MOST CLEARLY DEMONSTRATED BY
THE RECENT BANKRUPTCY APPLICATION OF THE PENN CENTRAL.  WE THINK IT
UNDENIABLE THAT A NUMBER OF OTHER ROADS ARE APPROACHING A SIMILAR
FINANCIAL CRISIS."  EX PARTE NOS. 265/267, INCREASED FREIGHT RATES,
1970 AND 1971, 339 I.C.C. 125, 173. 

THE RAILROADS ALLEGED THAT, SINCE THE CLOSE OF THAT PROCEEDING,
THEIR COSTS HAD INCREASED BY OVER $1 BILLION ON AN ANNUAL BASIS,
INCLUDING $305 MILLION IN INCREASED WAGES, WHILE ECONOMIC INDICATORS
SUCH AS DECREASED WORKING CAPITAL AND INCREASED DEBT OBLIGATIONS
POINTED TOWARD AN EVER-WORSENING FINANCIAL CONDITION.  /4/ 

IN AN ORDER DATED DECEMBER 21, 1971, THE COMMISSION ACKNOWLEDGED THE
NEED, PARTICULARLY OF SOME CARRIERS, FOR INCREASED REVENUES, BUT IT
CONCLUDED THAT FIVE DAYS' NOTICE AND A JANUARY 1, 1972, EFFECTIVE DATE
"WOULD PRECLUDE THE PUBLIC FROM EFFECTIVE PARTICIPATION."  EX PARTE NO.
281, INCREASED FREIGHT RATES AND CHARGES, 1972, 340 I.C.C. 358, 361. 
THE COMMISSION AUTHORIZED THE RAILROADS TO REFILE THE 2.5% SURCHARGE
WITH NOT LESS THAN 30 DAYS' NOTICE, AND AN EFFECTIVE DATE NO EARLIER
THAN FEBRUARY 5, 1972. 

ON JANUARY 5, 1972, THE RAILROADS REFILED THE SURCHARGE, TO BECOME
EFFECTIVE ON FEBRUARY 5, 1972.  SHIPPERS, COMPETING CARRIERS, AND OTHER
INTERESTED PERSONS REQUESTED THE COMMISSION TO SUSPEND THE TARIFF FOR
THE STATUTORY SEVEN-MONTH PERIOD.  VARIOUS ENVIRONMENTAL GROUPS,
INCLUDING STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP) AND
THE ENVIRONMENTAL DEFENSE FUND (EDF), TWO OF THE APPELLEES HERE,
PROTESTED THAT FAILURE TO SUSPEND THE SURCHARGE WOULD CAUSE THEIR
MEMBERS "ECONOMIC, RECREATIONAL AND AESTHETIC HARM."  SPECIFICALLY,
THEY CLAIMED THAT THE RATE STRUCTURE WOULD DISCOURAGE THE USE OF
"RECYCLABLE" MATERIALS, AND PROMOTE THE USE OF NEW RAW MATERIALS THAT
COMPETE WITH SCRAP, THEREBY ADVERSELY AFFECTING THE ENVIRONMENT BY
ENCOURAGING UNWARRANTED MINING, LUMBERING, AND OTHER EXTRACTIVE
ACTIVITIES.  THE MEMBERS OF THESE ENVIRONMENTAL GROUPS WERE ALLEGEDLY
FORCED TO PAY MORE FOR FINISHED PRODUCTS, AND THEIR USE OF FORESTS AND
STREAMS WAS ALLEGEDLY IMPAIRED BECAUSE OF UNNECESSARY DESTRUCTION OF
TIMBER AND EXTRACTION OF RAW MATERIALS, AND THE ACCUMULATION OF
OTHERWISE RECYCLABLE SOLID AND LIQUID WASTE MATERIALS.  THE RAILROADS
REPLIED THAT SINCE THIS WAS A GENERAL RATE INCREASE, RECYCLABLE
MATERIALS WOULD NOT BE MADE ANY LESS COMPETITIVE RELATIVE TO OTHER
COMMODITIES, AND THAT IN THE PAST GENERAL RATE INCREASES HAD NOT
DISCOURAGED THE MOVEMENT OF SCRAP MATERIALS. 

THE COMMITTION ISSUED AN ORDER ON FEBRUARY 1, 1972, SHORTLY BEFORE
THE SURCHARGE WOULD HAVE AUTOMATICALLY BECOME EFFECTIVE.  IT RECOGNIZED
THAT "THE RAILROADS HAVE A CRITICAL NEED FOR ADDITIONAL REVENUE FROM
THEIR INTERSTATE FREIGHT RATES AND CHARGES TO OFFSET, IN PART, RECENTLY
INCURRED INCREASED OPERATING COSTS," AND ANNOUNCED ITS DECISION NOT TO
SUSPEND THE 2.5% SURCHARGE FOR THE SEVEN-MONTH STATUTORY PERIOD.  /5/
IN ANTICIPATION OF THE PROPOSED PERMANENT SELECTIVE INCREASES TO BE
FILED BY THE RAILROADS AND TO AVOID FURTHER COMPLICATION OF THE TARIFF
RATES, THE COMMISSION SPECIFIED THAT ITS REFUSAL TO SUSPEND WAS
CONDITIONED UPON THE CARRIERS' SETTING AN EXPIRATION DATE FOR THE
SURCHARGE OF NO LATER THAN JUNE 5, 1972.  /6/  THE COMMISSION ORDERED
THE INVESTIGATION INTO THE RAILROADS' RATES WHICH HAD BEEN INSTITUTED
BY ITS DECEMBER 21 ORDER TO BE HELD IN ABEYANCE UNTIL THE CARRIERS
REQUESTED PERMISSION TO FILE THE INDICATED PERMANENT RATE INCREASES ON
A SELECTIVE BASIS.  WITH RESPECT TO THE APPELLEES' ENVIRONMENTAL
ARGUMENTS, THE COMMISSION FOUND THAT "THE INVOLVED GENERAL INCREASE
WILL HAVE NO SIGNIFICANT ADVERSE EFFECT ON THE MOVEMENT OF TRAFFIC BY
RAILWAY OR ON THE QUALITY OF THE HUMAN ENVIRONMENT WITHIN THE MEANING
OF THE (NATIONAL) ENVIRONMENTAL POLICY ACT OF 1969." 

THE PROPOSED PERMANENT SELECTIVE INCREASES, AVERAGING 4.1%, WERE
SUBSEQUENTLY FILED WITH THE COMMISSION, AND VARIOUS PARTIES AGAIN
REQUESTED THAT THESE PROPOSED RATES ALSO BE SUSPENDED.  BY ORDER SERVED
MARCH 6, 1972, THE COMMISSION DID NOT GRANT THE RAILROADS' REQUEST TO
HAVE THE SELECTIVE INCREASES GO INTO EFFECT ON APRIL 1, 1972, AS THEY
HAD SOUGHT BUT IT ALLOWED THE CARRIERS TO REPUBLISH THEIR RATES TO
BECOME EFFECTIVE ON MAY 1, 1972, UPON NOT LESS THAN 45 DAYS' NOTICE TO
THE PUBLIC.  THE CARRIERS DID REPUBLISH THE RATES, AND ON APRIL 24,
1972, THE COMMISSION ENTERED AN ORDER SUSPENDING THE PROPOSED SELECTIVE
INCREASE FOR THE FULL SEVEN-MONTH PERIOD ALLOWED BY STATUTE, OR TO AND
INCLUDING NOVEMBER 30, 1972.  /7/  THE INVESTIGATION INTO THE INCREASED
RATES WAS CONTINUED.  SINCE THE SELECTIVE INCREASES WERE TO SUPPLANT
THE TEMPORARY SURCHARGE, AND SINCE THEY HAD BEEN SUSPENDED, THE
COMMISSION MODIFIED ITS FEBRUARY 1 ORDER AND AUTHORIZED THE RAILROADS
TO ELIMINATE THE JUNE EXPIRATION DATE FOR THE SURCHARGE AND TO CONTINUE
COLLECTING THE SURCHARGE UNTIL NOVEMBER 30, 1972. 

        I 

ON MAY 12, 1972, SCRAP FILED THE PRESENT SUIT AGAINST THE UNITED
STATES AND THE COMMISSION IN THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA SEEKING, ALONG WITH OTHER RELIEF, A PRELIMINARY INJUNCTION TO
RESTRAIN ENFORCEMENT OF THE COMMISSION'S FEBRUARY 1 AND APRIL 24 ORDERS
ALLOWING THE RAILROADS TO COLLECT THE 2.5% SURCHARGE. 

SCRAP STATED IN ITS AMENDED COMPLAINT THAT IT WAS "AN UNINCORPORATED
ASSOCIATION FORMED BY FIVE LAW STUDENTS . . . IN SEPTEMBER, 1971.  ITS
PRIMARY PURPOSE IS TO ENHANCE THE QUALITY OF THE HUMAN ENVIRONMENT FOR
ITS MEMBERS, AND FOR ALL CITIZENS . . ."  TO ESTABLISH STANDING TO
BRING THIS SUIT, SCRAP REPEATED MANY OF THE ALLEGATIONS IT HAD MADE
BEFORE THE COMMISSION IN EX PARTE 281.  IT CLAIMED THAT EACH OF ITS
MEMBERS "SUFFERED ECONOMIC, RECREATIONAL AND AESTHETIC HARM DIRECTLY AS
A RESULT OF THE ADVERSE ENVIRONMENTAL IMPACT OF THE RAILROAD FREIGHT
STRUCTURE, AS MODIFIED BY THE COMMISSION'S ACTIONS TO DATE IN EX PARTE
281."  SPECIFICALLY, SCRAP ALLEGED THAT EACH OF ITS MEMEBERS WAS CAUSED
TO PAY MORE FOR FINISHED PRODUCTS, THAT EACH OF ITS MEMBERS "USES THE
FORESTS, RIVERS, STREAMS, MOUNTAINS, AND OTHER NATURAL RESOURCES
SURROUNDING THE WASHINGTON METROPOLITAN AREA AND AT HIS LEGAL
RESIDENCE, FOR CAMPING, HIKING, FISHING, SIGHTSEEING, AND OTHER
RECREATIONAL (AND) AESTHETIC PURPOSES," AND THAT THESE USES HAVE BEEN
ADVERSELY AFFECTED BY THE INCREASED FREIGHT RATES, THAT EACH OF ITS
MEMBERS BREATHES THE AIR WITHIN THE WASHINGTON METROPOLITAN AREA AND
THE AREA OF HIS LEGAL RESIDENCE AND THAT THIS AIR HAS SUFFERED
INCREASED POLLUTION CAUSED BY THE MODIFIED RATE STRUCTURE, AND THAT
EACH MEMBER HAS BEEN FORCED TO PAY INCREASED TAXES BECAUSE OF THE SUMS
WHICH MUST BE EXPENDED TO DISPOSE OF OTHERWISE REUSABLE WASTE
MATERIALS. 

THE MAIN THRUST OF SCRAP'S COMPLAINT WAS THAT THE COMMISSION'S
DECISIONS OF FEBRUARY 1 AND APRIL 24, INSOFAR AS THEY DECLINED TO
SUSPEND THE 2.5% SURCHARGE, WERE UNLAWFUL BECAUSE THE COMMISSION HAD
FAILED TO INCLUDE A DETAILED ENVIRONMENTAL IMPACT STATEMENT AS REQUIRED
BY ^ 102(2) (C) OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
(NEPA), 42 U.S.C. ^ 4332(2) (C).  NEPA REQUIRES SUCH A STATEMENT IN
"EVERY RECOMMENDATION OR REPORT ON PROPOSALS FOR LEGISLATION AND OTHER
MAJOR FEDERAL ACTIONS SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN
ENVIRONMENT . . ."  IBID.  /8/  SCRAP CONTENDED THAT BECAUSE OF ITS
ALLEGED ADVERSE IMPACT UPON RECYLCING, THE COMMISSION'S ACTION WITH
RESPECT TO THE SURCHARGE CONSTITUTED A MAJOR FEDERAL ACTION
SIGNIFICANTLY AFFECTING THE ENVIRONMENT. 

THREE ADDITIONAL ENVIRONMENTAL GROUPS, ALSO APPELLEES HERE, WERE
ALLOWED TO INTERVENE AS PLAINTIFFS, AND A GROUP OF RAILROADS,
APPELLANTS HERE, INTERVENED AS DEFENDANTS TO SUPPORT THE 2.5%
SURCHARGE.  /9/  AFTER A SINGLE DISTRICT JUDGE HAD DENIED THE
DEFENDANTS' MOTION TO DISMISS AND SCRAP'S MOTION FOR A TEMPORARY
RESTRAINING ORDER, A STATUTORY THREE-JUDGE DISTRICT COURT WAS CONVENED
PURSUANT TO 28 U.S.C. ^^ 2325, 2284, TO DECIDE THE MOTION FOR A
PRELIMINARY INJUNCTION AND THE CROSS-MOTION TO DISMISS THE COMPLAINT. 

ON JULY 10, 1972, THE DISTRICT COURT FILED AN OPINION, 346 F. SUPP.
189, AND ENTERED AN INJUNCTION PROHIBITING THE COMMISSION "FROM
PERMITTING," AND THE RAILROADS "FROM COLLECTING" THE 2.5% SURCHARGE
"INSOFAR AS THAT SURCHARGE RELATES TO GOODS BEING TRANSPORTED FOR
PURPOSES OF RECYCLING, PENDING FURTHER ORDER OF THIS COURT."  /10/ 

THE COURT FIRST REJECTED THE CONTENTION THAT THE APPELLEES WERE
WITHOUT STANDING TO SUE BECAUSE THEY ALLEGEDLY HAD NO MORE THAN "A
GENERAL INTEREST IN SEEING THAT THE LAW IS ENFORCE," ID., AT 195, AND
DISTINGUISHED OUR RECENT DECISION IN SIERRA CLUB V. MORTON, 405 U.S.
727, ON THE BASIS THAT, UNLIKE THE PETITIONER IN SIERRA CLUB, THE
ENVIRONMENTAL GROUPS HERE HAD ALLEGED THAT THEIR MEMBERS USED THE
FORESTS, STREAMS, MOUNTAINS AND OTHER RESOURCES IN THE WASHINGTON AREA
AND THAT THIS USE WAS DISTRUBED BY THE ENVIRONMENTAL IMPACT CAUSED BY
NONUSE OF RECYCLABLE GOODS. 

SECOND, THE COURT FOUND THAT ITS POWER TO GRANT AN INJUNCTION WAS
NOT BARRED BY OUR DECISION IN ARROW TRANSPORTATION CO. V. SOUTHERN R.
CO., 372 U.S. 658, 667, WHERE WE HELD THAT IN ENACTING 49 U.S.C. ^
15(7), CONGRESS HAD INTENTIONALLY VESTED "IN THE COMMISSION THE SOLE
AND EXCLUSIVE POWER TO SUSPEND AND (WITHDREW) FROM THE JUDICIARY ANY
PRE-EXISTING POWER TO GRANT INJUNCTIVE RELIEF."  THE COURT REASONED
THAT NEPA "IMPLICITLY CONFERS AUTHORITY ON THE FEDERAL COURTS TO ENJOIN
ANY FEDERAL ACTION TAKEN IN VIOLATION OF NEPA'S PROCEDURAL
REQUIREMENTS" "SO LONG AS THE REVIEW IS CONFINED TO A DETERMINATION AS
TO WHETHER THE PROCEDURAL REQUISITES OF NEPA HAVE BEEN FOLLOWED."  346
F. SUPP., AT 197 AND N. 11. 

FINALLY, TURNING TO THE MERITS, THE COURT CONCLUDED THAT THE
COMMISSION'S APRIL 24 DECISION NOT TO SUSPEND THE SURCHARGE FOR THE
STATUTORY SEVEN-MONTH PERIOD WAS A "'MAJOR FEDERAL ACTION SIGNIFICANTLY
AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT.'"  IBID., AT 199.  ON
THE PREMISE THAT AN ENVIRONMENTAL IMPACT STATEMENT IS REQUIRED
"WHENEVER THE ACTION ARGUABLY WILL HAVE AN ADVERSE ENVIRONMENTAL
IMPACT," ID., AT 201, THE COURT HELD THAT "THE DANGER OF AN ADVERSE
IMPACT IS SUFFICIENTLY REAL TO REQUIRE A STATEMENT IN THIS CASE." 
IBID. 

THE DISTRICT COURT DECLINED TO STAY ITS INJUNCTIVE ORDER PENDING
APPEAL TO THIS COURT, AND ON JULY 19, 1972, THE CHIEF JUSTICE, AS
CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA CIRCUIT, DENIED
APPLICATIONS TO STAY THE PRELIMINARY INJUNCTION.  409 U.S. 1207.  ON
DECEMBER 18, 1972, WE NOTED PROBABLE JURISDICTION OF THE APPEALS FILED
BY THE UNITED STATES, THE COMMISSION, AND THE RAILROADS.  409 U.S.
1073.  /11/

     II 

THE APPELLANTS CHALLENGE THE APPELLEES' STANDING TO SUE, ARGUING
THAT THE ALLEGATIONS IN THE PLEADINGS AS TO STANDING WERE VAGUE,
UNSUBSTANTIATED, AND INSUFFICIENT UNDER OUR RECENT DECISION IN SIERRA
CLUB V. MORTON, SUPRA.  THE APPELLEES RESPOND THAT UNLIKE THE
PETITIONER IN SIERRA CLUB, THEIR PLEADINGS SUFFICIENTLY ALLEGED THAT
THEY WERE "ADVERSELY AFFECTED" OR "AGGRIEVED" WITHIN THE MEANING OF THE
ADMINISTRATIVE PROCEDURE ACT APA), 5 U.S.C. ^ 702, /12/  AND THEY POINT
SPECIFICALLY TO THE ALLEGATIONS THAT THEIR MEMBERS USED THE FORESTS,
STREAMS, MOUNTAINS, AND OTHER RESOURCES IN THE WASHINGTON METROPOLITAN
AREA FOR CAMPING, HIKING, FISHING, AND SIGHTSEEING, AND THAT THIS USE
WAS DISTRUBED BY THE ADVERSE ENVIRONMENTAL IMPACT CAUSED BY THE NONUSE
OF RECYCLABLE GOODS BROUGHT ABOUT BY A RATE INCREASE ON THOSE
COMMODITIES.  THE DISTRICT COURT FOUND THESE ALLEGATIONS SUFFICIENT TO
WITHSTAND A MOTION TO DISMISS.  WE AGREE.     THE PETITIONER IN SIERRA
CLUB, "A LARGE AND LONG-ESTABLISHED ORGANIZATION, WITH A HISTORIC
COMMITMENT TO THE CAUSE OF PROTECTING OUR NATION'S NATURAL HERITAGE
FROM MAN'S DEPREDATIONS," 405 U.S., AT 739, SOUGHT A DECLARATORY
JUDGMENT AND AN INJUNCTION TO RESTRAIN FEDERAL OFFICIALS FROM APPROVING
THE CREATION OF AN EXTENSIVE SKI-RESORT DEVELOPMENT IN THE SCENIC
MINERAL KING VALLEY OF THE SEQUOIA NATIONAL FOREST.  THE SIERRA CLUB
CLAIMED STANDING TO MAINTAIN ITS "PUBLIC INTEREST" LAWSUIT BECAUSE IT
HAD "'A SPECIAL INTEREST IN THE CONSERVATION AND THE SOUND MAINTENANCE
OF THE NATIONAL PARKS, GAME REFUGES AND FORESTS OF THE COUNTRY . . .'" 
ID., AT 730.  WE HELD THOSE ALLEGATIONS INSUFFICIENT. 

RELYING UPON OUR PRIOR DECISIONS IN DATA PROCESSING SERVICE V.
CAMP.  397 U.S. 150, AND BARLOW V. COLLINS, 397 U.S. 159, WE HELD THAT
^ 702 OF THE APA CONFERRED STANDING TO OBTAIN JUDICIAL REVIEW OF AGENCY
ACTION ONLY UPON THOSE WHO COULD SHOW "THAT THE CHALLENGE ACTION HAD
CAUSED THEM 'INJURY IN FACT,' AND HERE THE ALLEGED INJURY WAS TO AN
INTEREST 'ARGUABLY WITHIN THE ZONE OF INTERESTS TO BE PROTECTED OR
REGULATED' BY THE STATUTES THAT THE AGENCIES WERE CLAIMED TO HAVE
VIOLATED."  405 U.S., AT 733.  /13/ 

IN INTERPRETING "INJURY IN FACT" WE MADE IT CLEAR THAT STANDING WAS
NOT CONFINED TO THOSE WHO COULD SHOW "ECONOMIC HARM," ALTHOUGH BOTH
DATA PROCESSING AND BARLOW HAD INVOLVED THAT KIND OF INJURY.  NOR, WE
SAID, COULD THE FACT THAT MANY PERSONS SHARED THE SAME INJURY BE
SUFFICIENT REASON TO DISQUALIFY FROM SEEKING REVIEW OF AN AGENCY'S
ACTION ANY PERSON WHO HAD IN FACT SUFFERED INJURY.  RATHER, WE
EXPLAINED:  "AESTHETIC AND ENVIRONMENTAL WELL-BEING, LIKE ECONOMIC WELL
BEING, ARE IMPORTANT INGREDIENTS OF THE QUALITY OF LIFE IN OUR SOCIETY,
AND THE FACT THAT PARTICULAR ENVIRONMENTAL INTERESTS ARE SHARED BY THE
MANY RATHER THAN THE FEW DOES NOT MAKE THEM LESS DESERVING OF LEGAL
PROTECTION THROUGH THE JUDICIAL PROCESS."  ID., AT 734.  CONSEQUENTLY,
NEITHER THE FACT THAT THE APPELLEES HERE CLAIMED ONLY A HARM TO THEIR
USE AND ENJOYMENT OF THE NATURAL RESOURCES OF THE WASHINGTON AREA, NOR
THE FACT THAT ALL THOSE WHO USE THOSE RESOURCES SUFFERED THE SAME HARM,
DEPRIVES THEM OF STANDING. 

IN SIERRA CLUB, THOUGH, WE WENT ON TO STRESS THE IMPORTANCE OF
DEMONSTRATING THAT THE PARTY SEEKING REVIEW BE HIMSELF AMONG THE
INJURED, FOR IT IS THIS REQUIREMENT THAT GIVES A LITIGANT A DIRECT
STAKE IN THE CONTROVERSY AND PREVENTS THE JUDICIAL PROCESS FROM
BECOMING NO MORE THAN A VEHICLE FOR THE VINDICATION OF THE VALUE
INTERESTS OF CONCERNED BYSTANDERS.  NO SUCH SPECIFIC INJURY WAS ALLEGED
IN SIERRA CLUB.  IN THAT CASE THE ASSERTED HARM "WILL BE FELT DIRECTLY
ONLY BY THOSE WHO USE MINERAL KING AND SEQUOIA NATIONAL PARK, AND FOR
WHOM THE AESTHETIC AND RECREATIONAL VALUES OF THE AREA WILL BE LESSENED
BY THE HIGHWAY AND SKI RESORT,"  ID., AT 735, YET "(THE SIERRA CLUB
FAILED TO ALLEGE THAT IT OR ITS MEMBERS WOULD BE AFFECTED IN ANY OF
THEIR ACTIVITIES OR PASTIMES BY THE . . . DEVELOPMENT."  IBID.  HERE,
BY CONTRAST, THE APPELLEES CLAIMED THAT THE SPECIFIC AND ALLEGEDLY
ILLEGAL ACTION OF THE COMMISSION WOULD DIRECTLY HARM THEM IN THEIR USE
OF THE NATURAL RESOURCES OF THE WASHINGTON METROPOLITAN AREA. 

UNLIKE THE SPECIFIC AND GEOGRAPHICALLY LIMITED FEDERAL ACTION OF
WHICH THE PETITIONER COMPLAINED IN SIERRA CLUB, THE CHALLENGED AGENCY
ACTION IN THIS CASE IS APPLICABLE TO SUBSTANTIALLY ALL OF THE NATION'S
RAILROADS, AND THUS ALLEGEDLY HAS AN ADVERSE ENVIRONMENTAL IMPACT ON
ALL THE NATURAL RESOURCES OF THE COUNTRY.  RATHER THAN A LIMITED GROUP
OF PERSONS WHO USED A PICTURESQUE VALLEY IN CALIFORNIA, ALL PERSONS WHO
UTILIZE THE SCENIC RESOURCES OF THE COUNTRY, AND INDEED ALL WHO BREATHE
ITS AIR, COULD CLAIM HARM SIMILAR TO THAT ALLEGED BY THE ENVIRONMENTAL
GROUPS HERE.  BUT WE HAVE ALREADY MADE IT CLEAR THAT STANDING IS NOT TO
BE DENIED SIMPLY BECAUSE MANY PEOPLE SUFFER THE SAME INJURY.  INDEED
SOME OF THE CASES ON WHICH WE RELIEF IN SIERRA CLUB DEMONSTRATED THE
PATENT FACT THAT PERSONS ACROSS THE NATION COULD BE ADVERSELY AFFECTED
BY MAJOR GOVERNMENTAL ACTIONS.  SEE, E. G., ENVIRONMENTAL DEFENSE FUND
V. HARDIN, 428 F.2D 1093, 1097 (INTERESTS OF CONSUMERS AFFECTED BY
DECISION OF SECRETARY OF AGRICULTURE REFUSING TO SUSPEND REGISTRATION
OF CERTAIN PESTICIDES CONTAINING DDT); READE V. EWING, 205 F.2D 630,
631 - 632 (INTERESTS OF CONSUMERS OF OLEOMARGARINE IN FAIR LABELING OF
PRODUCT REGULATED BY FEDERAL SECURITY ADMINISTRATION).  TO DENY
STANDING TO PERSONS WHO ARE IN FACT INJURED SIMPLY BECAUSE MANY OTHERS
ARE ALSO INJURED, WOULD MEAN THAT THE MOST INJURIOUS AND WIDESPREAD
GOVERNMENT ACTIONS COULD BE QUESTIONED BY NOBODY.  WE CANNOT ACCEPT
THAT CONCLUSION. 

BUT THE INJURY ALLEGED HERE IS ALSO VERY DIFFERENT FROM THAT AT
ISSUE IN SIERRA CLUB BECAUSE HERE THE ALLEGED INJURY TO THE ENVIRONMENT
IS FAR LESS DIRECT AND PERCEPTIBLE.  THE PETITIONER THERE COMPLAINED
ABOUT THE CONSTRUCTION OF A SPECIFIC PROJECT THAT WOULD DIRECTLY AFFECT
THE MINERAL KING VALLEY.  HERE, THE COURT WAS ASKED TO FOLLOW A FAR
MORE ATTENUATED LINE OF CAUSATION TO THE EVENTUAL INJURY OF WHICH THE
APPELLEES COMPLAINED -- A GENERAL RATE INCREASE WOULD ALLEGEDLY CAUSE
INCREASED USE OF NONRECYCLABLE COMMODITIES AS COMPARED TO RECYCLABLE
GOODS, THUS RESULTING IN THE NEED TO USE MORE NATURAL RESOURCES TO
PRODUCE SUCH GOODS, SOME OF WHICH RESOURCES MIGHT BE TAKEN FROM THE
WASHINGTON AREA, AND RESULTING IN MORE REFUSE THAT MIGHT BE DISCARDED
IN NATIONAL PARKS IN THE WASHINGTON AREA.  THE RAILROADS PROTEST THAT
THE APPELLEES COULD NEVER PROVE THAT A GENERAL INCREASE IN RATES WOULD
HAVE THIS EFFECT, AND THEY CONTEND THAT THESE ALLEGATIONS WERE A PLOY
TO AVOID THE NEED TO SHOW SOME INJURY IN FACT. 

OF COURSE, PLEADINGS MUST BE SOMETHING MORE THAN AN INGENIOUS
ACADEMIC EXERCISE IN THE CONCEIVABLE.  A PLAINTIFF MUST ALLEGE THAT HE
HAS BEEN OR WILL IN FACT BE PERCEPTIBLY HARMED BY THE CHALLENGED AGENCY
ACTION, NOT THAT HE CAN IMAGINE CIRCUMSTANCES IN WHICH HE COULD BE
AFFECTED BY THE AGENCY'S ACTION.  AND IT IS EQUALLY CLEAR THAT THE
ALLEGATIONS MUST BE TRUE AND CAPABLE OF PROOF AT TRIAL.  BUT WE DEAL
HERE SIMPLY WITH THE PLEADINGS IN WHICH THE APPELLEES ALLEGED A
SPECIFIC AND PERCEPTIBLE HARM THAT DISTINGUISHED THEM FROM OTHER
CITIZENS WHO HAD NOT USED THE NATURAL RESOURCES THAT WERE CLAIMED TO BE
AFFECTED.  /14/  IF, AS THE RAILROADS NOW ASSERT, THESE ALLEGATIONS
WERE IN FACT UNTRUE, THEN THE APPELLANTS SHOULD HAVE MOVED FOR SUMMARY
JUDGMENT ON THE STANDING ISSUE AND DEMONSTRATED TO THE DISTRICT COURT
THAT THE ALLEGATIONS WERE SHAM AND RAISED NO GENUINE ISSUE OF FACT. 
/15/  WE CANNOT SAY ON THESE PLEADINGS THAT THE APPELLEES COULD NOT
PROVE THEIR ALLEGATIONS WHICH, IF PROVED, WOULD PLACE THEM SQUARELY
AMONG THOSE PERSONS INJURED IN FACT BY THE COMMISSION'S ACTION, AND
ENTITLED UNDER THE CLEAR IMPORT OF SIERRA CLUB TO SEEK REVIEW.  THE
DISTRICT COURT WAS CORRECT IN DENYING THE APPELLANTS' MOTION TO DISMISS
THE COMPLAINT FOR FAILURE TO ALLEGE SUFFICIENT STANDING TO BRING THIS
LAWSUIT. 

        III 

WE NEED NOT REACH THE ISSUE WHETHER, UNDER CONVENTIONAL STANDARDS OF
EQUITY, THE DISTRICT COURT WAS JUSTIFIED IN ISSUING A PRELIMINARY
INJUNCTION, BECAUSE WE HAVE CONCLUDED THAT THE COURT LACKED
JURISDICTION TO ENTER AN INJUNCTION IN ANY EVENT. 

THE DISTRICT COURT ENJOINED THE COMMISSION FROM "PERMITTING," AND
THE RAILROADS FROM "COLLECTING," THE 2.5% INTERIM SURCHARGE ON
RECYCLABLE COMMODITIES.  FINDING THAT NEPA IMPLICITLY CONFERRED
AUTHORITY "ON THE FEDERAL COURTS TO ENJOIN ANY FEDERAL ACTION TAKEN IN
VIOLATION OF NEAP'S PROCEDURAL REQUIREMENTS," 346 F. SUPP., AT 197, IT
CONCLUDED THAT OUR DECISION IN ARROW TRANSPORTATION CO. V. SOUTHERN R.
CO., 372 U.S. 658, DID NOT AFFECT JUDICIAL POWER TO ISSUE AN INJUNCTION
IN THE CIRCUMSTANCES OF THIS CASE.  WE CANNOT AGREE. 

IN ARROW, THE COMMISSION HAD SUSPENDED A RAILROAD'S PROPOSED RATES
FOR THE STATUTORY SEVEN-MONTH PERIOD, AND THE RAILROAD HAD VOLUNTARILY
DEFERRED THE PROPOSED RATE FOR AN ADDITIONAL FIVE MONTHS.  WHEN THE
COMMISSION HAD NOT REACHED A FINAL DECISION WITHIN THAT PERIOD, THE
RAILROAD ANNOUNCED ITS INTENT TO ADOPT THE NEW RATES.  IN A SUIT
BROUGHT TO ENJOIN THE RAILROAD FROM EFFECTUATING THAT CHANGE, WE HELD
THAT THE COURTS WERE WITHOUT POWER TO ISSUE SUCH AN INJUNCTION.  FROM
THE LANGUAGE AND HISTORY OF ^ 15(7) OF THE INTERSTATE COMMERCE ACT, WE
CONCLUDED THAT CONGRESS HAD VESTED EXCLUSIVE POWER IN THE COMMISSION TO
SUSPEND RATES PENDING ITS FINAL DECISION ON THEIR LAWFULNESS, AND HAD
DELIBERATELY EXTINGUISHED JUDICIAL POWER TO GRANT SUCH RELIEF.  THE
FACTUAL DISTINCTIONS BETWEEN THE PRESENT CASES AND ARROW ARE
INCONSEQUENTIAL. 

IT IS TRUE THAT THE INJUNCTION IN ARROW WAS SOUGHT AFTER THE
STATUTORY SEVEN-MONTH PERIOD HAD EXPIRED AND THUS REPRESENTED AN
ATTEMPT TO EXTEND JUDICIALLY THE SUSPENSION PERIOD, WHILE HERE THE
INJUNCTION WAS ISSUED DURING THE SUSPENSION PERIOD.  BUT ARROW WAS
GROUNDED ON THE LACK OF POWER IN THE COURTS TO GRANT ANY INJUNCTION
BEFORE THE COMMISSION HAD FINALLY DETERMINED THE LAWFULNESS OF THE
RATES, AND THAT HOLDING DID NOT DEPEND ON THE FACT THAT THE
AVAILABILITY OF THE COMMISSION'S POWER OF SUSPENSION HAD PASSED. 
INDEED, THE FEDERAL COURT DECISIONS CITED AND APPROVED IN ARROW
INVOLVED INSTANCES WHERE THE COURTS HAD BEEN ASKED TO ENJOIN RATES
DURING THE STATUTORY SEVEN-MONTH PERIOD.  SEE, E. G., M. C. KISER CO.
V. CENTRAL OF GEORGIA R. CO., 236 F. 573, AFF'D, 239 F. 718; FREEPORT
SULPHUR CO. V. UNITED STATES, 199 F. SUPP. 913; BISON S. S. CORP. V.
UNITED STATES, 182 F. SUPP. 63; LUCKENBACH S. S. CO. V. UNITED STATES,
179 F. SUPP. 605, 609 - 610, VACATED IN PART AS MOOT, 364 U.S. 280;
CARLSEN V. UNITED STATES, 107 F. SUPP. 398. 

SIMILARLY, THERE IS NO SIGNIFICANCE IN THE FACT THAT, UNLIKE ARROWS,
THE INJUNCTION IN THIS LITIGATION RAN AGAINST THE COMMISSION AS WELL AS
THE RAILROADS.  THE ONLY WAY IN WHICH THE COMMISSION COULD COMPLY WITH
THE COURT'S ORDER WOULD BE TO EXERCISE ITS POWER OF SUSPENSION AND
SUSPEND THE SURCHARGE.  THE INJUNCTION CONSTITUTES A DIRECT
INTERFERENCE WITH THE COMMISSION'S DISCRETIONARY DECISION WHETHER OR
NOT TO SUSPEND THE RATES.  IT WOULD TURN ARROW INTO A SHEER FORMALITY
AND EFFECTIVELY AMEND ^ 15(7) IF A FEDERAL COURT COULD ACCOMPLISH BY
INJUNCTION AGAINST THE COMMISSION WHAT IT COULD NOT ACCOMPLISH BY
INJUNCTION DIRECTLY AGAINST THE RAILRAODS.  AND, AGAIN, THE FEDERAL
COURT DECISIONS ON WHICH ARROW RELIED WERE FOR THE MOST PART CASES IN
WHCIH THE COURTS HAD HELD THAT THEY WERE WITHOUT POWER TO COMPEL THE
COMMISSION TO GRANT A RATE SUSPENSION.  SEE, E. G., BISON S. S. CORP.
V. UNITED STATES, SUPRA; LUCKENBACH S. S. CO. V. UNITED STATES, SUPRA;
CARLSEN V. UNITED STATES, SUPRA; CF. FREEPORT SULPHUR CO. V. UNITED
STATES, SUPRA.  /16/ 

THUS, THE ONLY ARGUABLY SIGNIFICANT DISTINCTION BETWEEN THE PRESENT
LITIGATION AND ARROW IS THAT HERE THE COMMISSION ALLEGEDLY FAILED TO
COMPLY WITH NEPA.  HOWEVER, WE CANNOT AGREE WITH THE DISTRICT COURT
THAT NEPA HAS AMENDED ^ 15(7) SUB SILENTIO AND CREATED AN IMPLICIT
EXCEPTION TO ARROW SO THAT JUDICIAL POWER TO GRANT INJUNCTIVE RELIEF IN
THIS CASE HAS BEEN REVIVED.  /17/  NEPA, ONE OF THE RECENT MAJOR
FEDERAL EFFORTS AT REVERSING THE DETERIORATION OF THE COUNTRY'S
ENVIRONMENT, DECLARES "THAT IT IS THE CONTINUING POLICY OF THE FEDERAL
GOVERNMENT . . . TO USE ALL PRACTICABLE MEANS AND MEASURES . . . IN A
MANNER CALCULATED TO FOSTER AND PROMOTE THE GENERAL WELFARE, TO CREATE
AND MAINTAIN CONDITIONS UNDER WHICH MAN AND NATURE CAN EXIST IN
PRODUCTIVE HARMONY, AND FULFILL THE SOCIAL, ECONOMIC, AND OTHER
REQUIREMENTS OF U.S.C. ^ 4331.  TO IMPLEMENT THESE LOFTY PURPOSES,
CONGRESS IMPOSED A NUMBER OF RESPONSIBILITIES UPON FEDERAL AGENCIES,
MOST NOTABLY THE REQUIREMENT OF PRODUCING A DETAILED ENVIRONMENTAL
IMPACT STATEMENT FOR "MAJOR FEDERAL ACTIONS SIGNIFICANTLY AFFECTING THE
QUALITY OF THE HUMAN ENVIRONMENT."  42 U.S.C. ^ 4332(2) (C).  /18/  BUT
NOWHERE, EITHER IN THE LEGISLATIVE HISTORY OR THE STATUTORY LANGUAGE,
IS THERE ANY INDICATION THAT CONGRESS INTENDED TO RESTORE TO THE
FEDERAL COURTS THE POWER TEMPORARILY TO SUSPEND RAILROAD RATES, A POWER
THAT HAD BEEN CLEARLY TAKEN AWAY BY ^ 15(7) OF THE INTERSTATE COMMERCE
ACT. 

THE STATUTORY LANGUAGE, IN FACT, INDICATES THAT NEPA WAS NOT
INTENDED TO REPEAL BY IMPLICATION ANY OTHER STATUTE.  THUS, 42 U.S.C. ^
4334 INSTRUCTS THAT THE ACT "SHALL (NOT) IN ANY WAY AFFECT THE SPECIFIC
STATUTORY OBLIGATIONS OF ANY FEDERAL AGENCY . . ."  RATHER THAN
PROVIDING FOR ANY WHOLESALE OVERRULING OF PRIOR LAW, NEPA REQUIRES ALL
FEDERAL AGENCIES TO REVIEW THEIR "PRESENT STATUTORY AUTHORITY,
ADMINISTRATIVE REGULATIONS, AND CURRENT POLICIES AND PROCEDURES FOR THE
PURPOSE OF DETERMINING WHETHER THERE ARE ANY DEFICIENCIES OR
INCONSISTENCIES THEREIN WHICH PROHIBIT FULL COMPLIANCE WITH THE PURPOSE
AND PROVISIONS OF (NEPA) AND SHALL PROPOSE TO THE PRESIDENT . . . SUCH
MEASURES AS MAY BE NECESSARY TO BRING THEIR AUTHORITY AND POLICIES INTO
CONFORMITY WITH THE INTENT, PURPOSES, AND PROCEDURES SET FORTH IN
(NEPA)."  42 U.S.C. ^ 4333.  IT WOULD BE ANOMALOUS IF CONGRESS HAD
PROVIDED AT ONE AND THE SAME TIME THAT FEDERAL AGENCIES, WHICH HAVE THE
PRIMARY RESPONSIBILITY FOR THE IMPLEMENTATION OF NEPA, /19/  MUST
COMPLY WITH PRESENT LAW AND ASK FOR ANY NECESSARY NEW LEGISLATION, BUT
THAT THE COURTS MAY SIMPLY IGNORE WHAT WE DESCRIBED IN ARROW AS "A
CLEAR CONGRESSIONAL PURPOSE TO OUST JUDICIAL POWER . . ."  372 U.S., AT
671 N. 22.  /20/ 

THE DISTRICT COURT POINTED TO NOTHING EITHER IN THE LANGUAGE OR
HISTORY OF NEPA THAT SUGGESTS A RESTORATION OF PREVIOUSLY ELIMINATED
JUDICIAL POWER.  WHILE IT RELIED PRIMARILY ON THE DECISIONS OF THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IN CALVERT
CLIFFS' COORDINATING COMM. V. ATOMIC ENERGY COMM'N, 146 U.S. APP. D. C.
33, 449 F.2D 1109, AND COMMITTEE FOR NUCLEAR RESPONSIBILITY, INC. V.
SEABORG, 149 U.S. APP. D. C. 380, 463 F.2D 783, NEITHER CASE SUPPORTS
AN INJUNCTION UNDER THE CIRCUMSTANCES OF THIS CASE.  CALVERT CLIFFS
HELD THAT A FEDERAL COURT HAD POWER TO REVIEW RULES PROMULGATED BY THE
ATOMIC ENERGY COMMISSION, AND THERE THE COURT ORDERED FURTHER
CONSIDERATION OF THE RULES ON THE GROUND THAT THERE HAD NOT BEEN
COMPLIANCE WITH NEPA.  IN COMMITTEE FOR NUCLEAR RESPONSIBLITY IT WAS
HELD THAT FEDERAL COURTS HAD JURISDICTION TO CONSIDER WHETHER AN
EXECUTIVE DECISION TO CONDUCT A NUCLEAR TEST HAD SATISFIED THE
PROCEDURAL REQUIREMENTS OF NEPA.  THE QUESTION HERE, HOWEVER, IS NOT
WHETHER THERE IS GENERAL JUDICIAL POWER TO DETERMINE IF AN AGENCY HAS
COMPLIED WITH NEPA, AND TO GRANT EQUITABLE RELIEF IF IT HAS NOT, CF.
ARROW TRANSPORTATION CO. V. SOUTHERN R. CO., SUPRA, AT 671 N. 22;
SCRIPPS-HOWARD RADIO, INC. V. FCC, 316 U.S. 4, BUT RATHER WHETHER IN A
SPECIFIC CONTEXT NEPA SUB SILENTIO REVIVED JUDICIAL POWER THAT HAD BEEN
EXPLICITLY ELIMINATED BY CONGRESS.  CALVERT CLIFFS' AND COMMITTEE FOR
NUCLEAR RESPONSIBILITY HAVE NOTHING TO SAY ON THIS ISSUE, FOR NEITHER
WAS CONCERNED WITH A SPECIFIC STATUTE THAT RESTRICTS THE POWER OF THE
FEDERAL COURTS TO GRANT INJUNCTIONS.  /21/ 

OUR CONCLUSION THAT THE DISTRICT COURT LACKED THE POWER TO GRANT THE
PRESENT INJUNCTION IS CONFIRMED BY THE FACT THAT EACH OF THE POLICIES
THAT WE IDENTIFIED IN ARROW AS THE BASIS FOR ^ 15(7) WOULD BE
SUBSTANTIALLY UNDERMINED IF THE COURTS WERE FOUND TO HAVE SUSPENSION
POWERS SIMPLY BECAUSE NONCOMPLIANCE WITH NEPA WAS ALLEGED. 

FIRST, ARROW FOUND THAT THE COMMISSION HAD BEEN GRANTED EXCLUSIVE
SUSPENSION POWERS IN ORDER TO AVOID THE DIVERSE RESULTS THAT HAD
PREVIOUSLY BEEN REACHED BY THE COURTS.  DISTRICT COURTS HAD DIFFERED AS
TO THE EXISTENCE AND SCOPE OF ANY POWER TO GRANT INTERIM RELIEF, WITH
THE CONSEQUENCE THAT THE UNIFORMITY OF RATES HAD BEEN JEOPARDIZED, AND
DIFFERENT SHIPPERS, CARRIERS, AND AREAS OF THE COUNTRY HAD BEEN
SUBJECTED TO DISPARATE TREATMENT.  SIMILARLY, SINCE A SUIT TO ENJOIN A
NATIONAL RATE INCREASE ON NEPA GROUNDS COULD BE BROUGHT IN ANY FEDERAL
DISTRICT COURT IN THE COUNTRY, SEE 28 U.S.C. ^^ 2284, 2321 - 2325, THE
RESULT MIGHT EASILY BE THAT THE COURTS WOULD "(REACH) DIVERSE RESULTS,
. . .(ENGENDERING) CONFUSION AND (PRODUCING) COMPETITIVE INEQUITIES." 
372 U.S., AT 663.  IN SHORT, A RATE INCREASE ALLOWED IN NEW YORK MIGHT
BE DISALLOWED IN NEW JERSEY. 

SECOND, WE STRESSED IN ARROW THAT ^ 15(7) REPRESENTS A CAREFUL
ACCOMMODATION OF THE VARIOUS INTERESTS INVOLVED.  THE SUSPENSION PERIOD
WAS LIMITED AS TO TIME TO PREVENT EXCESSIVE HARM TO THE CARRIERS, FOR
THE REVENUES LOST DURING THAT PERIOD COULD NOT BE RECOUPED FROM THE
SHIPPERS.  ON THE OTHER HAND, CONGRESS WAS AWARE THAT IF THE COMMISSION
DID NOT ACT WITHIN THE SUSPENSION PERIOD, THEN THE NEW RATES WOULD
AUTOMATICALLY GO INTO EFFECT AND THE SHIPPERS WOULD HAVE TO PAY
INCREASED RATES THAT MIGHT EVENTUALLY BE FOUND UNLAWFUL.  TO MITIGATE
THIS LOSS, CONGRESS AUTHORIZED THE COMMISSION TO REQUIRE THE CARRIERS
TO KEEP DETAILED ACCOUNTS AND EVENTUALLY TO REPAY THE INCREASED RATES
IF FOUND UNLAWFUL.  TO ALLOW JUDICIAL SUSPENSION FOR NONCOMPLIANCE WITH
NEPA, WOULD DISTURB THIS CAREFUL BALANCE OF INTERESTS.  A RAILROAD MAY
DEPEND FOR ITS VERY FINANCIAL LIFE ON AN INCREASED RATE, AND THE RATE
MAY BE PERFECTLY JUST AND REASONABLE.  GRANTING AN INJUNCTION AGAINST
THAT RATE BASED ON THE COMMISSION'S ALLEGED NONCOMPLIANCE WITH NEPA,
ALTHOUGH THE COMMISSION HAD DETERMINED NOT TO SUSPEND THE RATE, WOULD
DEPRIVE THE RAILROAD OF VITALLY NEEDED REVENUES AND RESULT IN AN
UNJUSTIFIED WINDFALL TO SHIPPERS. 

FINALLY, WE FOUND IN ARROW THAT ANY SURVIVAL OF A JUDICIAL POWER TO
GRANT INTERIM INJUNCTIVE RELIEF WOULD REPRESENT AN UNDESIRABLE
INTERFERENCE WITH THE ORDERLY EXERCISE OF THE COMMISSION'S POWER OF
SUSPENSION.  SIMILARLY, TO GRANT AN INJUNCTION IN THE PRESENT CONTEXT,
EVEN THOUGH NOT BASED UPON A SUBSTANTIVE CONSIDERATION OF THE RATES,
WOULD DIRECTLY INTERFERE WITH THE COMMISSION'S DECISION AS TO WHEN THE
RATES WERE TO GO INTO EFFECT, AND WOULD IGNORE OUR CONCLUSION IN ARROW
THAT "CONGRESS MEANT TO FORECLOSE A JUDICIAL POWER TO INTERFERE WITH
THE TIMING OF RATE CHANGES WHICH WOULD BE OUT OF HARMONY WITH THE
UNIFORMITY OF RATE LEVELS FOSTERED BY THE DOCTRINE OF PRIMARY
JURISDICTION."  372 U.S., AT 668.  AS THE COURT OF APPEALS FOR THE
SECOND CIRCUIT EXPLAINED IN PORT OF NEW YORK AUTHORITY V. UNITED
STATES, 451 F.2D 783, 788, WHERE, ON THE BASIS OF ALLEGED NONCOMPLIANCE
WITH NEPA, AN INJUNCTION WAS SOUGHT AGAINST A COMMISSION ORDER REFUSING
TO SUSPEND RATES: 

"THE BASIS OF THE DECISION IN ARROW -- THAT TO PERMIT JUDICIAL
INTERFERENCE WITH THE COMMISSION'S SUSPENSION PROCEDURES WOULD INVITE
THE VERY DISRUPTION IN THE ORDERLY REVIEW OF THE LAWFULNESS OF PROPOSED
TARIFFS THAT CONGRESS MEANT TO PRECLUDE -- APPLIES WITH EQUAL FORCE TO
THE ISSUE NOW BEFORE US." 

ACCORDINGLY, BECAUSE THE DISTRICT COURT GRANTED A PRELIMINARY
INJUNCTION SUSPENDING RAILROAD RATES WHEN IT LACKED THE POWER TO DO SO,
/22/  ITS JUDGMENT MUST BE REVERSED AND THE CASES REMANDED TO THAT
COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  TITLE 49 U.S.C. ^ 6(3) PROVIDES "NO CHANGE SHALL BE MADE IN THE
RATES, FARES, AND CHARGES WHICH HAVE BEEN FILED AND PUBLISHED BY ANY
COMMON CARRIER IN COMPLIANCE, WITH THE REQUIREMENTS OF THIS SECTION,
EXCEPT AFTER THRITY DAYS' NOTICE TO THE COMMISSION AND TO THE PUBLIC
PUBLISHED AS AFORESAID, WHICH SHALL PLAINLY STATE THE CHANGES PROPOSED
TO BE MADE IN THE SCHEDULE THEN IN FORCE AND THE TIME WHEN THE CHANGED
RATES, FARES, OR CHARGES WILL GO INTO EFFECT; AND THE PROPOSED CHANGES
SHALL BE SHOWN BY PRINTING NEW SCHEDULES, OR SHALL BE PLAINLY INDICATED
UPON THE SCHEDULES IN FORCE AT THE TIME AND KEPT OPEN TO PUBLIC
INSPECTION:  PROVIDED, THAT THE COMMISSION MAY, IN ITS DISCRETION AND
FOR GOOD CAUSE SHOWN, ALLOW CHANGES UPON LESS THAN THE NOTICE HEREIN
SPECIFIED, OR MODIFY THE REQUIREMENTS OF THIS SECTION IN RESPECT TO
PUBLISHING, POSTING, AND FILING OF TARIFFS, EITHER IN PARTICULAR
INSTANCES OR BY A GENERAL ORDER APPLICABLE TO SPECIAL OR PECULIAR
CIRCUMSTANCES OR CONDITIONS:  PROVIDED FURTHER, THAT THE COMMISSION IS
AUTHORIZED TO MAKE SUITABLE RULES AND REGULATIONS FOR THE
SIMPLIFICATION OF SCHEDULES OF RATES, FARES, CHARGES, AND
CLASSIFICATIONS AND TO PERMIT IN SUCH RULES AND REGULATIONS THE FILING
OF AN AMENDMENT OF OR CHANGE IN ANY RATE, FARE, CHARGE, OR
CLASSIFICATION WITHOUT FILING COMPLETE SCHEDULES COVERING RATES, FARES,
CHARGES OR CLASSIFICATIONS NOT CHANGED IF, IN ITS JUDGMENT, NOT
INCONSISTENT WITH THE PUBLIC INTEREST." 

/2/  TITLE 49 U.S.C. ^ 15(7) PROVIDES IN PERTINENT PART:  "WHENEVER
THERE SHALL BE FILED WITH THE COMMISSION ANY SCHEDULE STATING A NEW . .
. RATE, FARE, OR CHARGE, THE COMMISSION SHALL HAVE . . . AUTHORITY,
EITHER UPON COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, AT
ONCE, AND IF IT SO ORDERS WITHOUT ANSWER OR OTHER FORMAL PLEADING BY
THE INTERESTED CARRIER OR CARRIERS, BUT UPON REASONABLE NOTICE, TO
ENTER UPON A HEARING CONCERNING THE LAWFULNESS OF SUCH RATE, FARE, (OR)
CHARGE . . .'  AND PENDING SUCH HEARING AND THE DECISION THEREON THE
COMMISSION, UPON FILING WITH SUCH SCHEDULE AND DELIVERING TO THE
CARRIER OR CARRIERS AFFECTED THEREBY A STATEMENT IN WRITING OF ITS
REASONS FOR SUCH SUSPENSION, MAY FROM TIME TO TIME SUSPEND THE
OPERATION OF SUCH SCHEDULE AND DEFER THE USE OF SUCH RATE, FARE, (OR)
CHARGE . . ., BUT NOT FOR A LONGER PERIOD THAN SEVEN MONTHS BEYOND THE
TIME WHEN IT WOULD OTHERWISE GO INTO EFFECT; AND AFTER FULL HEARING,
WHETHER COMPLETED BEFORE OR AFTER THE RATE, FARE, (OR) CHARGE . . .
GOES INTO EFFECT, THE COMMISSION MAY MAKE SUCH ORDER WITH REFERENCE
THERETO AS WOULD BE PROPER IN A PROCEEDING INITIATED AFTER IT HAD
BECOME EFFECTIVE.  IF THE PROCEEDING HAS NOT BEEN CONCLUDED AND AN
ORDER MADE WITHIN THE PERIOD OF SUSPENSION, THE PROPOSED CHANGE OF
RATE, FARE, (OR) CHARGE . . . SHALL GO INTO EFFECT AT THE END OF SUCH
PERIOD; BUT IN CASE OF A PROPOSED INCREASED RATE OR CHARGE FOR OR IN
RESPECT TO THE TRANSPORTATION OF PROPERTY, THE COMMISSION MAY BY ORDER
REQUIRE THE INTERESTED CARRIER OR CARRIERS TO KEEP ACCURATE ACCOUNT IN
DETAIL OF ALL AMOUNTS RECEIVED BY REASON OF SUCH INCREASE, SPECIFYING
BY WHOM AND IN WHOSE BEHALF SUCH AMOUNTS ARE PAID, AND UPON COMPLETION
OF THE HEARING AND DECISION MAY BE FURTHER ORDER REQUIRE THE INTERESTED
CARRIER OR CARRIERS TO REFUND, WITH INTEREST, TO THE PERSONS IN WHOSE
BEHALF SUCH AMOUNTS WERE PAID, SUCH PORTION OF SUCH INCREASED RATES OR
CHARGES AS BY ITS DECISIONS SHALL BE FOUND NOT JUSTIFIED.  AT ANY
HEARING INVOLVING A CHANGE IN A RATE, FARE, (OR) CHARGE . . . AFTER
SEPTEMBER 18, 1940, THE BURDEN OF PROOF SHALL BE UPON THE CARRIER TO
SHOW THAT THE PROPOSED CHANGED RATE, FARE, (OR) CHARGE . . . IS JUST
AND REASONABLE, AND THE COMMISSION SHALL GIVE TO THE HEARING AND
DECISION OF SUCH QUESTIONS PREFERENCE OVER ALL OTHER QUESTIONS PENDING
BEFORE IT AND DECIDE THE SAME AS SPEEDILY AS POSSIBLE." 

/3/  OTHER STATUTORY PROVISIONS GIVING SUSPENSION POWERS TO THE
COMMISSION INCLUDE 49 U.S.C. ^^ 316(G), 318(C) (MOTOR CARRIER ACT); 49
U.S.C. ^^ 907(G), (I) (WATER CARRIER ACT); 49 U.S.C. ^ 1006 (E)
(FREIGHT FORWARDERS ACT). 

/4/  FIGURES REPORTED TO THE COMMISSION INDICATED THAT THE NET
WORKING CAPITAL OF THE CLASS I RAILROADS FOR THE 12 MONTHS ENDING
SEPTEMBER 30, 1971, WAS ONLY $75.4 MILLION, APPROXIMATELY $33.7 MILLION
LESS THAN THE YEAR-END 1970 FIGURE.  LONG-TERM DEBT MATURING WITHIN ONE
YEAR FROM SEPTEMBER 30, 1971, WAS $43.6 MILLION HIGHER THAN ON DECEMBER
31, 1970.  EQUIPMENT OBLIGATIONS AT THE END OF 1970 WERE $4,448
MILLION, OR ALMOST TWICE THE TOTAL IN 1960. 

/5/  THE ORDER OF THE ICC IS UNREPORTED. 

/6/  THE COMMISSION ALSO IMPOSED AS A CONDITION ON ITS REFUSAL TO
SUSPEND THE EXCLUSION OF INCREASED RATES "ON FREIGHT IN TRAILER BODIES,
SEMI-TRAILERS, VEHICLES OR CONTAINERS ON FLAT CARS, ON EXPORT AND
IMPORT TRAFFIC."  SINCE SUCH INCREASES HAD BEEN PROPOSED ONLY BY THE
WESTERN AND SOUTHERN CARRIERS AND NOT BY THE EASTERN CARRIERS, SUCH
INCREASES WOULD, IN THE COMMISSION'S VIEW, HAVE DISRUPTED EXISTING PORT
RELATIONSHIPS. 

FINALLY, THE COMMISSION CONDITIONED ITS ACTION ON THE PROVISION THAT
THE PROPOSED SURCHARGE WOULD NOT APPLY TO SHIPMENTS ORIGINATING PRIOR
TO FEBRUARY 5, 1972, AND MOVING UNDER TRANSIT ARRANGEMENTS. 

/7/  THE MARCH 6 AND APRIL 24 ORDERS OF THE ICC ARE UNREPORTED. 

/8/ SECTION 102, 42 U.S.C. ^ 4332, PROVIDES IN PERTINENT PART: 

"THE CONGRESS AUTHORIZES AND DIRECTS THAT, TO THE FULLEST EXTENT
POSSIBLE:  (1) THE POLICIES, REGULATIONS, AND PUBLIC LAWS OF THE UNITED
STATES SHALL BE INTERPRETED AND ADMINISTERED IN ACCORDANCE WITH THE
POLICIES SET FORTH IN THIS CHAPTER, AND (2) ALL AGENCIES OF THE FEDERAL
GOVERNMENT SHALL--

        .       .          .          . 

"(C) INCLUDE IN EVERY RECOMMENDATION OR REPORT ON PROPOSALS FOR
LESGILATION AND OTHER MAJOR FEDERAL ACTIONS SIGNIFICANTLY AFFECTING THE
QUALITY OF THE HUMAN ENVIRONMENT, A DETAILED STATEMENT BY THE
RESPONSIBLE OFFICIAL ON -- 

"(I) THE ENVIRONMENTAL IMPACT OF THE PROPOSED ACTION, 

"(II) ANY ADVERSE ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED
SHOULD THE PROPOSAL BE IMPLEMENTED, 

"(III) ALTERNATIVES TO THE PROPOSED ACTION. 

"(IV) THE RELATIONSHIP BETWEEN LOCAL SHORT-TERM USES OF MAN'S
ENVIRONMENT AND THE MAINTENANCE AND ENHANCEMENT OF LONG-TERM
PRODUCTIVITY, AND 

"(V) ANY IRREVERSIBLE AND IRRETRIEVABLE COMMITMENTS OF RESOURCES
WHICH WOULD BE INVOLVED IN THE PROPOSED ACTION SHOULD IT BE
IMPLEMENTED.  "PRIOR TO MAKING ANY DETAILED STATEMENT, THE RESPONSIBLE
FEDERAL OFFICIAL SHALL CONSULT WITH AND OBTAIN THE COMMENTS OF ANY
FEDERAL AGENCY WHICH HAS JURISDICTION BY LAW OR SPECIAL EXPERTIESE WITH
RESPECT TO ANY ENVIRONMENTAL IMPACT INVOLVED.  COPIES OF SUCH STATEMENT
AND THE COMMENTS AND VIEWS OF THE APPROPRIATE FEDERAL, STATE, AND LOCAL
AGENCIES, WHICH ARE AUTHORIZED TO DEVELOP AND ENFORCE ENVIRONMENTAL
STANDARDS, SHALL BE MADE AVAILABLE TO THE PRESIDENT, THE COUNCIL ON
ENVIRONMENTAL QUALITY AND TO THE PUBLIC . . . AND SHALL ACCOMPANY THE
PROPOSAL THROUGH THE EXISTING AGENCY REVIEW PROCESSES." 

/9/  THE ENVIRONMENTAL DEFENSE FUND, NATIONAL PARKS AND CONSERVATION
ASSOCIATION, AND IZAAK WALTON LEAGUE OF AMERICA INTERVENED AS
PLAINTIFFS.  THE ALLEGATIONS AS TO STANDING MADE BY EACH OF THESE
GROUPS WERE SIMILAR TO THOSE MADE BY SCRAP.  EDF, FOR EXAMPLE, ALLEGED
AS FOLLOWS: 

"EDF HAS A NATIONWIDE MEMBERSHIP OF OVER 32,000 PERSONS COMPOSED OF
SCIENTISTS, EDUCATORS, LAWYERS AND OTHER CITIZENS DEDICATED TO THE
PROTECTION OF OUR ENVIRONMENT AND THE WISE USE OF OUR NATURAL
RESOURCES.  EACH OF EDF'S MEMBERS HAS A PERSONAL INTEREST IN THE
MAINTENANCE OF A SAFE, HEALTHFUL, PRODUCTIVE ENVIRONMENT AS FREE FROM
WASTE SUBSTANCES AS IS POSSIBLE.  EDF'S MEMBERS HAVE CONTRIBUTED
FINANCIALLY TO EDF IN PART SO THAT THEY MAY OBTAIN INTERESTS, WHICH
REPRESENTATION THEY COULD NOT OTHERWISE INDIVIDUALLY AFFORD.  EACH OF
EDF'S MEMBERS HAS UNDER ^ 101(C) OF NEPA, 'A RESPONSIBILITY TO
CONTRIBUTE TO THE PRESERVATION AND ENHANCEMENT OF THE ENVIRONMENT,'
WHICH RESPONSIBILITY THEY FULFILL IN PART BY BECOMING A MEMBER OF AND
CONTRIBUTING TO EDF. 

"THE INCREASED FREIGHT RATES AND CHARGES IN EX PARTE 281 AND THE
CONTINUANCE OF THE UNDERLYING RATE STRUCTURE, WHICH DISCRIMINATE
AGAINST MOVEMENT OF SECONDARY (RECYCLABLE) MATERIALS, WILL CAUSE EDF
MEMBERS INDIVIDUALIZED INJURY AND ADVERSELY AFFECT THEM IN ONE OR MORE
OF THEIR ACTIVITIES AND PASTIMES.  SPECIFICALLY, EACH EDF MEMBER:  (I)
HAS BEEN OR WILL BE CAUSED TO PAY MORE FOR PRODUCTS IN THE MARKET
PLACE, MADE MORE EXPENSIVE BY BOTH THE NON-USE OF RECYLCED MATERIALS IN
THEIR MANUFACTURE, AND THE NEED TO USE COMPARATIVELY MORE ENERGY IN
PROCESSING PRIMARY RAW MATERIALS AS OPPOSED TO SECONDARY (RECYCLABLE)
MATERIALS; (II) USES THE NATION'S FORESTS, RIVERS, STEAMS, MOUNTAINS,
AND OTHER NATURAL RESOURCES FOR CAMPING, HIKING, FISHING, SIGHTSEEING,
AND OTHER RECREATIONAL AND AESTHETIC PURPOSES.  THESE USES HAVE BEEN
AND WILL CONTINUE TO BE ADVERSELY AFFECTED TO THE EXTENT THAT THE
FREIGHT RATE STRUCTURE, AS MODIFIED THUS FAR IN EX PARTE 281,
ENCOURAGES DESTRUCTION OF VIRGIN TIMBER, THE UNNECESSARY EXTRACTION OF
NON-RENEWABLE RESOURCES, AND THE DISCHARGE AND ACCUMULATION OF
OTHERWISE RECYCLABLE MATERIALS." 

/10/  THE COURT DISMISSED AS MOOT THAT PART OF THE COMPLAINT
RELATING TO THE COMMISSION'S FEBRUARY 1 ORDER BECAUSE THAT ORDER HAD
EXPIRED BY ITS OWN TERMS ON JUNE 5.  SINCE THE ENVIRONMENTAL GROUPS
HAVE NOT APPEALED FROM THE JUDGMENT BELOW, WE HAVE BEFORE US FOR REVIEW
ONLY THE DISTRICT COURT'S ACTION WITH REGARD TO THE COMMISSION'S APRIL
24 ORDER THAT ALLOWED THE SURCHARGE TO CONTINUE UNTIL NOVEMBER 30,
1972. 

THE COURT ALSO CONCLUDED THAT SINCE THE COMMISSION HAD TAKEN NO
FINAL ACTION WITH RESPECT TO THE 4.1% SELECTIVE INCREASE, THE
LAWFULNESS OF THAT TARIFF WAS NOT RIPE FOR REVIEW.  THE COURT DID,
HOWEVER, RETAIN JURISDICTION OVER THE CASE TO REVIEW THE FINAL ORDER OF
THE COMMISSION. 

/11/  WHILE SUBSEQUENT EVENTS DO NOT BEAR DIRECTLY ON THE VALIDITY
OF THE DISTRICT COURT'S ACTION IN GRANTING THE PRELIMINARY INJUNCTION,
THEY DO HIGHLIGHT THE PROBLEMS THAT HOVER IN THE BACKGROUND OF THIS
LITIGATION. 

ON OCTOBER 4, 1972, THE COMMISSION SERVED ITS REPORT AND ORDER IN EX
PARTE 281 APPROVING, WITH SOME EXCEPTIONS, THE GENERAL INCREASES FILED
BY THE RAILROADS.  INCREASED FREIGHT RATES AND CHARGES, 1972, 341
I.C.C. 290.  IN THAT REPORT, ALTHOUGH THE COMMISSION GAVE EXTENSIVE
CONSIDERATION TO ENVIRONMENTAL ASPECTS OF THE RATE INCREASES, IT
DECLINED TO INCLUDE A FORMAL ENVIRONMENTAL IMPACT STATEMENT BECAUSE IT
CONCLUDED THAT ITS ACTIONS "WILL NEITHER ACTUALLY NOR POTENTIALLY
SIGNIFICANTLY AFFECT THE QUALITY OF THE HUMAN ENVIRONMENT . . ."  ID.,
AT 314. 

THE SELECTIVE INCREASES WERE TO BECOME EFFECTIVE ON OCTOBER 23,
1972, BUT THE COMMISSION DELAYED UNTIL NOVEMBER 12 THE EFFECTIVE DATE
FOR RATE INCREASES ON RECYCLABLE COMMODITIES IN ORDER TO ALLOW THE
SUBMITTION OF COMMENTS BY INTERESTED PARTIES.  UPON THE SUBMISSION OF
CRITICAL COMMENTS, THE COMMISSION, IN AN UNREPORTED ORDER SERVED ON
NOVEMBER 8, REOPENED THE RATE PROCEEDING IN EX PARTE 281 FOR FURTHER
EVALUATION OF THE RATES ON RECYCLABLE COMMODITIES, AND ORDERED THE
PROPOSED SELECTIVE TARIFF INCREASES ON THOSE COMMODITIES SUSPENDED FOR
THE FULL SEVEN-MONTH PERIOD AUTHORIZED BY STATUTE -- UNTIL JUNE 10,
1973.  ACCORDINGLY, WITH RESPECT TO RECYCLABLE COMMODITIES ON WHICH THE
PROPOSED SELECTIVE INCREASE HAD BEEN SUSPENDED, THE COMMISSION EXTENDED
THE EXPIRATION DATE OF THE 2.5% SURCHARGE UNTIL JUNE 10, 1973, THE
EXPIRATION DATE FOR THE SUSPENSION OF THE SELECTIVE INCREASES.  BUT THE
COMMISSION ACKNOWLEDGED THAT THE POWER TO COLLECT THE SURCHARGE ON
THESE RECYCLABLE COMMODITIES WAS BARRED BY THE PRELIMINARY INJUNCTION
ISSUED BY THE DISTRICT COURT IN THE PRESENT CASE AND WHICH IS THE
SUBJECT OF THE PRESENT APPEALS.  IN SHORT, THE TEMPORARY 2.5% SURCHARGE
WOULD HAVE BEEN IN EFFECT THROUGHOUT THIS PERIOD ON RECYCLABLE
COMMODITIES BUT FOR THE DISTRICT COURT'S RESILIENT PRELIMINARY
INJUNCTION.  WHETHER THE COMMISSION DELIBERATELY CONTINUED THE
SURCHARGE BEYOND THE TIME IT WOULD HAVE BEEN SUPPLANTED BY THE
SELECTIVE INCREASES IN ORDER TO GIVE THE SURCHARGE AND THE DISTRICT
COURT'S INJUNCTION CONTINUING EFFECT AND THUS AVOID MOOTING THIS
LITIGATION, AND WHETHER THE COMMISSION ACTED BEYOND ITS POWERS UNDER 49
U.S.C. ^ 15(7) BY SUSPENDING THE SELECTIVE INCREASES FOR A SECOND SEVEN
MONTH PERIOD AND BY TREATING THE DISTRICT COURT'S INJUNCTION AS HAVING
CONTINUING EFFECT, ARE QUESTIONS NOT RAISED HERE.  NO PARTY NOW
MAINTAINS THAT THESE CASES ARE MOOT.  CF. SOUTHERN PACIFIC TERMINAL CO.
V. ICC, 219 U.S. 498, 515. 

BOTH SETS OF APPELLEES FILED MOTIONS IN THE DISTRICT COURT:  SCRAP
SOUGHT A PRELIMINARY INJUNCTION AGAINST THE COMMISSION'S OCTOBER 4
ORDER, AND EDF AND THE OTHER INTERVENING PLAINTIFFS SOUGHT LEAVE TO
FILE AN AMENDED AND SUPPLEMENTAL COMPLAINT AND REQUESTED OTHER RELIEF. 
ON JANUARY 9, 1973, THE COURT DEFERRED CONSIDERATION OF THE EDF MOTIONS
AND DENIED SCRAP'S REQUEST FOR A PRELIMINARY INJUNCTION.  THE COURT
FOUND THAT AS A RESULT OF THE COMMISSION'S NOVEMBER 8 ORDER, NEITHER
THE SELECTIVE RATE INCREASES NOR THE TEMPORARY SURCHARGE COULD BE
ASSESSED ON RECYCLABLE COMMODITIES.  CONSEQUENTLY, THE COURT FOUND, NO
INJUNCTIVE RELIEF WAS JUSTIFIED AS TO THOSE MATERIALS.  WHILE THE
PERMANENT RATE INCREASE APPROVED BY THE COMMISSION IN EX PARTE 281 WAS
THEN BEING COLLECTED ON SHIPMENTS OF ALL OTHER COMMODITIES, AND
ALTHOUGH THE COMMISSION HAD CONCEDEDLY FAILED TO FILE AN IMPACT
STATEMENT, THE COURT CONCLUDED THAT "THE DANGER OF AN ADVERSE IMPACT
APPEARS TO BE SUFFICIENTLY SPECULATIVE . . . THAT IT WOULD BE UNSOUND
TO GRANT PRELIMINARY RELIEF."  THE COURT CONTINUED:  "THE RECORD
INDICATES THAT MANY RAILROADS ARE IN DIRE FINANCIAL STRAITS -- SOME ON
THE VERGE OF BANKRUPTCY -- AND BADLY NEED THE REVENUES NOW BEING
OBTAINED UNDER THE COMMISSION'S RATE INCREASE.  THE INCREASE AMOUNTS TO
SOME $340 MILLION PER YEAR, AND WERE THIS REVENUE FLOW HALTED IT COULD
NOT EASILY BE RECOUPED SHOULD IT LATER APPEAR THAT NO NEPA STATEMENT
WAS NECESSARY."  THE MERITS OF NEITHER THE COMMISSION'S OCTOBER 4 ORDER
NOR THE DISTRICT COURT'S JANUARY 9 DECISION ARE BEFORE US, AND WE
THEREFORE EXPRESS NO OPINION ON THEM. 

ON MAY 7, 1973, THE COMMISSION SERVED ITS FINAL ENVIRONMENTAL IMPACT
STATEMENT RELATING TO THE SELECTIVE RATE INCREASES ON RECYCLABLE
COMMODITIES.  IT CONCLUDED THAT THE PROPOSED INCREASES WOULD HAVE NO
SIGNIFICANT ADVERSE EFFECT ON THE ENVIRONMENT.  CONTENDING THAT THE
IMPACT STATEMENT WAS INADEQUATE, EDF AND SCRAP SOUGHT TO ENJOIN
COLLECTION OF THE SELECTIVE RATE INCREASES.  ON JUNE 7, 1973, THE
DISTRICT COURT TEMPORARILY ENJOINED THE RAILROADS FROM COLLECTING THE
SELECTIVE INCREASES ON RECYCLABLE COMMODITIES.  ON JUNE 8, 1973, THE
CHIEF JUSTICE, AS CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA CIRCUIT,
STAYED THE DISTRICT COURT'S INJUNCTION PENDING FURTHER ORDER OF THIS
COURT. 

/12/  LIKE THE PETITIONER IN SIERRA CLUB, THE APPELLEES HERE BASE
THEIR STANDING TO SUE UPON THE APA, 5 U.S.C. ^ 702, WHICH PROVIDES: 

"A PERSON SUFFERING LEGAL WRONG BECAUSE OF AGENCY ACTION, OR
ADVERSELY AFFECTED OR AGGRIEVED BY AGENCY ACTION WITHIN THE MEANING OF
A RELEVANT STATUTE, IS ENTITLED TO JUDICIAL REVIEW THEREOF." 

/13/  AS IN SIERRA CLUB, IT IS UNNECESSARY TO REACH ANY QUESTION
CONCERNING THE SCOPE OF THE "ZONE OF INTERESTS" TEST OR ITS APPLICATION
TO THIS CASE.  IT IS UNDISPUTED THAT THE "ENVIRONMENTAL INTEREST" THAT
THE APPELLEES SEEK TO PROTECT IS WITHIN THE INTERESTS TO BE PROTECTED
BY NEPA, AND IT IS UNNECESSARY TO CONSIDER THE VARIOUS ALLEGATIONS OF
ECONOMIC HARM ON WHICH THE APPELLEES ALSO RELIED IN THEIR PLEADINGS AND
WHICH THE GOVERNMENT CONTENDS ARE OUTSIDE THE INTENDED PURPOSES OF
NEPA. 

/14/  THE GOVERNMENT URGES US TO LIMIT STANDING TO THOSE WHO HAVE
BEEN "SIGNIFICANTLY" AFFECTED BY AGENCY ACTION.  BUT, EVEN IF WE COULD
BEGIN TO DEFINE WHAT SUCH A TEST WOULD MEAN, WE THINK IT FUNDAMENTALLY
MISCONCEIVED.  "INJURY IN FACT" REFLECTS THE STATUTORY REQUIREMENT THAT
A PERSON BE "ADVERSELY AFFECTED" OR "AGGRIEVED," AND IT SERVES TO
DISTINGUISH A PERSON WITH A DIRECT STAKE IN THE OUTCOME OF A LITIGATION
-- EVEN THOUGH SMALL -- FROM A PERSON WITH A MERE INTEREST IN THE
PROBLEM.  WE HAVE ALLOWED IMPORTANT INTERESTS TO BE VINDICATED BY
PLAINTIFFS WITH NO MORE AT STAKE IN THE OUTCOME OF AN ACTION THAN A
FRACTION OF A VOTE, SEE BAKER V. CARR, 369 U.S. 186; A FIVE-DOLLAR FINE
AND COSTS, SEE MCGOWAN V. MARYLAND, 366 U.S. 420; AND A $1.50 POLL TAX,
HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663.  WHILE THESE CASES
WERE NOT DEALING SPECIFICALLY WITH ^ 702 OF THE APA, WE SEE NO REASON
TO ADOPT A MORE RESTRICTIVE INTERPRETATION OF "ADVERSELY AFFECTED" OR
"AGGRIEVED."  AS PROFESSOR DAVIS HAS PUT IT:  "THE BASIC IDEA THAT
COMES OUT IN NUMEROUS CASES IS THAT AN IDENTIFIABLE TRIFLE IS ENOUGH
FOR STANDING TO FIGHT OUT A QUESTION OF PRINCIPLE; THE TRIFLE IS THE
BASIS FOR STANDING AND THE PRINCIPLE SUPPLIES THE MOTIVATION."  DAVIS,
STANDING:  TAXPAYERS AND OTHERS, 35 U. CHI.  L. REV. 601, 613.  SEE
ALSO K. DAVIS, ADMINISTRATIVE LAW TREATISE ^^ 22.09 - 5, 22.09 - 6
(SUPP. 1970). 

/15/  THE RAILROADS OBJECT TO THE FACT THAT THE ALLEGATIONS WERE NOT
MORE PRECISE -- THAT NO SPECIFIC "FOREST" WAS NAMED, THAT THERE WAS NOT
MORE PRECISE -- THAT NO SPECIFIC "FOREST" WAS NAMED, THAT THERE WAS NO
ASSERTION OF THE EXISTENCE OF ANY LUMBERING CAMP OR OTHER EXTRACTIVE
FACILITY IN THE AREA.  THEY CLAIM THAT THEY HAD NO WAY TO ANSWER SUCH
ALLEGATIONS WHICH WERE WHOLLY BARREN OF SPECIFICS.  BUT, IF THAT WERE
REALLY A PROBLE , THE RAILROADS COULD HAVE MOVED FOR A MORE DEFINITE
STATEMENT, SEE FED. RULE CIV. PROC. 12 (E), AND CERTAINLY NORMAL CIVIL
DISCOVERY DEVICES WERE AVAILABLE TO THE RAILROADS. 

SIMILARLY, THE DISTRICT COURT CANNOT BE FAULTED FOR FAILING TO TAKE
EVIDENCE ON THE ISSUE OF STANDING.  THIS CASE CAME BEFORE THE COURT ON
MOTIONS TO DISMISS AND FOR A PRELIMINARY INJUNCTION.  IF THE RAILROADS
THOUGHT THAT IT WAS NECESSARY TO TAKE EVIDENCE, OR IF THEY BELIEVED
SUMMARY JUDGMENT WAS APPROPRIATE, THEY COULD HAVE MOVED FOR SUCH
RELIEF. 

/16/  EDF SUGGESTS THAT THE APRIL 24 ORDER OF THE COMMISSION WAS IN
FACT A FINAL ORDER FINDING THE SURCHARGE "JUST AND REASONABLE," NOT
SIMPLY A REFUSAL TO SUSPEND THE SURCHARGE.  BUT THE COMMISSION'S
REFERENCE TO THE "JUST AND REASONABLE" NATURE OF THE SURCHARGE WAS A
PRELIMINARY ASSESSMENT COMMONLY MADE IN SUSPENSION ORDERS.  SEE, E. G.,
THE SUSPENSION ORDERS QUOTED IN NAPH-SOL REFINING CO. V. UNITED STATES,
269 F. SUPP. 530, 531; OSCAR MAYER & CO. V. UNITED STATES, 268 F. SUPP.
977, 978 - 979.  IT DID NOT REPRESENT A FINAL DETERMINATION BY THE
COMMISSION THAT ANY PARTICULAR RATE WAS JUST AND REASONABLE.  INDEED
THE COMMISSION MADE IT CLEAR IN ITS FEBRUARY 1 ORDER THAT THE SURCHARGE
WAS NOT CONSIDERED A PRESCRIBED RATE WITHIN THE MEANING OF ARIZONA
GROCERY CO. V. ATCHISON, T. & S. F. R. CO., 284 U.S. 370, AND WAS
SUBJECT TO COMPLAINT AND INVESTIGATION UNDER THE ACT. 

/17/  AN ALTERNATIVE GROUND FOR AVOIDING THE ARROW DECISION, WHICH
WAS SUGGESTED BUT NOT RELIED ON BY THE DISTRICT COURT, WAS THAT THE
SURCHARGE HERE WAS AN "AGENCY-MADE" RATE, NOT A "CARRIER-MADE" RATE. 
MOSS V. CAB, 430 F.2D 891, WHICH WAS CITED BY THE COURT IS, HOWEVER,
PLAINLY INAPPOSITE.  THERE THE CAB SUSPENDED THE RATES PROPOSED BY THE
CARRIERS, BUT SUGGESTED IN THEIR PLACE "A COMPLETE AND INNOVATIVE
SCHEME FOR SETTING ALL PASSENGER RATES FOR THE CONTINENTAL UNITED
STATES."  ID., AT 899.  IT WAS CLEAR THAT WHEN THE CARRIERS FILED THE
RATES SUGGESTED BY THE BOARD THEY WOULD NOT BE SUSPENDED.  "EVEN A
CURSORY READING OF THE ORDER MAKES IT CLEAR THAT THE BOARD TOLD THE
CARRIERS WHAT RATES TO FILE; IT SET FORTH A STEP-BY-STEP FORMULA
REQUIRING MAJOR CHANGES IN RATE-MAKING PRACTICES AND IN RATES WHICH IT
EXPECTED THE CARRIERS TO ADOPT."  ID., AT 899 - 900.  HERE, BY
CONTRAST, THE LEVEL AND STRUCTURE OF THE RATES WERE PROPOSED ENTIRELY
BY THE CARRIERS.  WHILE THE COMMISSION SUGGESTED AN EXPIRATION DATE FOR
THE SURCHARGE, THIS WAS SIMPLY TO MAKE THE SURCHARGE EXPIRE WHEN THE
GENERAL SELECTIVE INCREASES WENT INTO EFFECT.  THIS EXPIRATION DATE AND
THE OTHER STANDARD CONDITIONS ATTACHED TO THE COMMISSION'S REFUSAL TO
SUSPEND THE SURCHARGE DID NOT, IN ANY MEANINGFUL SENSE, TRANSFORM THE
CARRIER-MADE RATE INTO A COMMISSION-MADE RATE. 

/18/  SEE N. 8, SUPRA. 

/19/  SEE GREENE COUNTY PLANNING BOARD V. FPC, 455 F.2D 412, 420;
CALVERT CLIFFS' COORDINATING COMM. V. ATOMIC ENERGY COMM'N, 146 U.S.
APP. D. C. 33, 43, 449 F.2D 1109, 1119; CITY OF NEW YORK V. UNITED
STATES, 337 F. SUPP. 150, 160; COHEN V. PRICE COMM'N, 337 F. SUPP.
1236, 1241. 

/20/  THE ARGUMENT THAT NEPA IMPLICITLY RESTORED TO THE COURTS THE
INJUNCTIVE POWER THAT ^ 15(7) HAD DIVESTED IS SIMILAR TO A CONTENTION
REJECTED IN ARROW ITSELF.  THERE THE PETITIONERS CLAIMED THAT
CONGRESSIONAL ADOPTION OF THE NATIONAL TRANSPORTATION POLICY, 54 STAT.
899, HAD IMPLICITLY ALTERED ^ 15(7).  THEY CLAIMED THAT THE PROPOSED
NEW RAILROAD RATES WOULD DRIVE THE BARGE LINES OUT OF EXISTENCE,
CONTRARY TO THE CONGRESSIONAL DECLARATION OF CONCERN FOR THE PROTECTION
OF WATER CARRIERS THREATENED BY RAIL COMPETITION.  THE COURT CONCLUDED
THAT "NOTHING IN THE NATIONAL TRANSPORTATION POLICY, ENACTED MANY YEARS
AFTER . . . ^ 15(7), INDICATES THAT CONGRESS INTENDED TO REVIVE A
JUDICIAL POWER WHICH . . . WAS EXTINGUISHED WHEN THE SUSPENSION POWER
WAS VESTED IN THE COMMISSION."  ARROW TRANSPORTATION CO. V. SOUTHERN R.
CO., 372 U.S. 658, 673.  IN ADDITION, THE COURT NOTED THAT, AS IS ALSO
TRUE WITH NEPA, THE MANDATE WAS DIRECTED NOT TO THE COURTS BUT TO THE
COMMISSION.  THERE IS NOTHING ABOUT NEPA THAT MAKES IT ANY MORE
AMENABLE FOR FINDING AN IMPLICIT AMENDMENT OF ^ 15(7), THAN THE
NATIONAL TRANSPORTATION POLICY WAS. 

/21/  INDEED CALVERT CLIFFS' INDICATED THAT THE REQUIREMENTS OF ^
102 OF NEPA, SEE N. 8, SUPRA, DID NOT HAVE TO BE COMPLIED WITH, IF SUCH
COMPLIANCE WAS PRECLUDED BY ANOTHER STATUTORY PROVISION.  146 U.S. APP.
D. C., AT 39, 449 F.2D, AT 1115.  AND COMMITTEE FOR NUCLEAR
RESPONSIBILITY, IN ANOTHER CONTEXT, ENDORSED A PRINCIPLE, EQUALLY
APPLICABLE HERE, THAT "REPEAL BY IMPLICATION IS DISFAVORED."  149 U.S.
APP. D. C. 380, 382, 463 F.2D 783, 785.     /22/  IN VIEW OF OUR
CONCLUSION THAT THERE WAS NO POWER TO GRANT THE PRELIMINARY INJUNCTION,
IT IS UNNECESSARY FOR US TO REACH THE OTHER QUESTIONS POSED BY THE
PARTIES.  FOR EXAMPLE, THE GOVERNMENT AND THE RAILROADS URGE THAT,
BECAUSE OF THE PRESSURES OF TIME, AN ENVIRONMENTAL IMPACT STATEMENT IS
NOT REQUIRED AT THE SUSPENSION STAGE OF A RATE PROCEEDING, AND, IN ANY
EVENT, A DECISION BY THE COMMISSION WHETHER OR NOT TO SUSPEND RATES IS
NOT SUBJECT TO JUDICIAL REVIEW.  SEE PORT OF NEW YORK AUTHORITY V.
UNITED STATES, 451 F.2D 783; OSCAR MAYER & CO. V. UNITED STATES, 268 F.
SUPP. 977; M. C. KISER CO. V. CENTRAL OF GEORGIA R. CO., 236 F. 573;
FREEPORT SULPHUR CO. V. UNITED STATES, 199 F. SUPP. 913; LUCKENBACH S.
S. CO. V. UNITED STATES, 179 F. SUPP. 605; CARLSEN V. UNITED STATES,
107 F. SUPP. 398.  THE APPELLEES IN TURN CONTEND THAT SOME COMPLIANCE
WITH NEPA IS POSSIBLE AT THE SUSPENSION STAGE, AND THAT SUCH COMPLIANCE
IS REQUIRED IF THE STATUTE IS TO BE ENFORCED "TO THE FULLEST EXTENT
POSSIBLE."  SEE 42 U.S.C. ^ 4332.  AND THEY URGE THAT THERE IS, OR
SHOULD BE, AN EXCEPTION TO THE GENERAL PRINCIPLE OF NONREVIEWABILITY OF
SUSPENSION DECISIONS FOR THOSE CASES WHERE THE COMMISSION HAS ACTED
BEYOND ITS STATUTORY AUTHORITY, OR IN VIOLATION OF A CLEAR STATUTORY
COMMAND OR A PROCEDURAL REQUIREMENT, A STANDARD THAT THE APPELLEES VIEW
AS BROAD ENOUGH TO ENCOMPASS ALLEGED NONCOMPLIANCE WITH NEPA.  SEE NAPH
SOL REFINING CO. V. UNITED STATES, 269 F. SUPP. 530, 532; OSCAR MAYER &
CO. V. UNITED STATES, SUPRA, AT 982 (DOYLE, J., CONCURRING); LONG
ISLAND R. CO. V. UNITED STATES, 193 F. SUPP. 795.  WE EXPRESS NO VIEW
ON ANY OF THESE ISSUES. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING. 

I JOIN THE COURT'S JUDGMENT AND ITS OPINION, BUT BECAUSE OF THE
PRESENCE OF THE FIRST SENTENCE OF PART III OF THE OPINION, AND TO AVOID
ANY MISUNDERSTANDING AS TO MY POSTURE, I ADD A FEW WORDS. 

FOR THE REASONS STATED IN MY DISSENTING OPINION IN SIERRA CLUB V.
MORTON, 405 U.S. 727, 755 (1972), I WOULD HOLD THAT THE APPELLEES HERE
HAVE STANDING TO MAINTAIN THIS ACTION BASED ON THEIR ALLEGATIONS OF
HARM TO THE ENVIRONMENT RESULTING FROM THE COMMISSION'S ORDER OF APRIL
24, 1972.  AND IN EVALUATING WHETHER INJUNCTIVE RELIEF IS WARRANTED, I
WOULD NOT REQUIRE THAT THE APPELLEES, IN THEIR INDIVIDUAL CAPACITIES,
PROVE THAT THEY IN FACT WERE INJURED.  RATHER, I WOULD REQUIRE ONLY
THAT APPELLEES, AS RESPONSIBLE AND SINCERE REPRESENTATIVES OF
ENVIRONMENTAL INTERESTS, SHOW THAT THE ENVIRONMENT WOULD BE INJURED IN
FACT AND THAT SUCH INJURY WOULD BE IRREPARABLE AND SUBSTANTIAL. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

THESE CASES PRESENT IMPORTANT ENVIRONMENTAL PROBLEMS.  THEY CONCERN
RATEMAKING FOR THE SHIPMENT OF LITTER FOR RECYCLING.  PAPER, GLASS, AND
METALS ARE THE MAIN ITEMS IN TODAY'S GARBAGE.  /1/  AS INDICATED BY THE
BUREAU OF MINES IN APPENDIX I TO THIS OPINION, AMERICA'S METHOD OF
DISPOSING OF GARBAGE IS EITHER TO USE IT FOR LANDFILL OR TO PUT IT
FIRST THROUGH INCINERATORS AND THEN TO BURY THE RESIDUE.  SORTING AND
RECYCLING HAVE SEVERAL ENVIRONMENTAL IMPACTS:  (1) REDUCTION IN THE USE
OF INCINERATORS LESSENS AIR POLLUTION; (2) ESTABLISHING OR ENCOURAGING
REMOVAL OF LITTER FROM THE LANDSCAPE; (3) RECYCLING SAVES BOTH
RENEWABLE AND NONRENEWABLE RESOURCES.  AS RESPECTS THE LAST, THE TONS
OF PAPER THAT ARE RECYCLED, RATHER THAN BURNED, CAN BE TRANSLATED INTO
THE NUMBER OF STANDING TREES THAT NEED NOT BE CUT FOR PULP THE NEXT
YEAR; THE METALS RECYCLE PROTECT OUR REMAINING NON-RENEWABLE SUPPLIES
OF ORE, AND SO ON. 

RATES FIXED SO AS TO ENCOURAGE VAST SHIPMENTS OF LITTER ARE,
THEREFORE, PERHAPS THE MOST IMMEDIATE AND DRAMATIC ILLUSTRATION OF A
POLICY WHICH WILL ENCOURAGE PROTECTION OF THE ENVIRONMENT AGAINST
SEVERAL EROSIVE CONDITIONS.  /2/  I WOULD, THEREFORE, AFFIRM THE
EMINENTLY RESPONSIBLE DECISION OF THE DISTRICT COURT.  346 F. SUPP.
189. 

THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, 83 STAT. 852, 42
U.S.C. ^ 4321 ET SEQ., DECLARES A CONGRESSIONAL POLICY 

"WHICH WILL ENCOURAGE PRODUCTIVE AND ENJOYABLE HARMONY BETWEEN MAN
AND HIS ENVIRONMENT; TO PROMOTE EFFORTS WHICH WILL PREVENT OR ELIMINATE
DAMAGE TO THE ENVIRONMENT AND BIOSPHERE AND STIMULATE THE HEALTH AND
WELFARE OF MAN; TO ENRICH THE UNDERSTANDING OF THE ECOLOGICAL SYSTEMS
AND NATURAL RESOURCES IMPORTANT TO THE NATION; AND TO ESTABLISH A
COUNCIL ON ENVIRONMENTAL QUALITY." 

THAT BROAD POLICY IS FURTHER EXPOUNDED IN ^ 4331(B) TO INCLUDE,
INTER ALIA, THE OBJECTIVE THAT "THE NATION MAY . . .(2) ASSURE FOR ALL
AMERICANS SAFE, HEALTHFUL, PRODUCTIVE, AND ESTHETICALLY AND CULTURALLY
PLEASING SURROUNDINGS . . . AND (6) ENHANCE THE QUALITY OF RENEWABLE
RESOURCES AND . . . DEPLETABLE RESOURCES." 

THE GOVERNMENT URGES THAT APPELLEES DO NOT HAVE STANDING TO
CHALLENGE THE ADMINISTRATIVE DETERMINATION OF RAILROAD FREIGHT RATE
INCREASES.  SCRAP ALLEGED IN ITS AMENDED COMPLAINT THAT ITS MEMBERS
SUFFERED ENVIRONMENTAL AND ECONOMIC INJURY AS A RESULT OF THE ALLEGED
INCREASE, BECAUSE THE INCREASE DIMINISHED THE TOTAL AMOUNT OF WASTE
RECYCLING IN THE UNITED STATES, AND MADE THOSE PRODUCTS, WHICH WERE IN
FACT MANUFACTURED FROM THE WASTE MATERIALS AFTER THE RATE INCREASE,
MORE EXPENSIVE IN THE MARKETPLACE.  IN ADDITION, SCRAP ALLEGED THAT
EACH OF ITS MEMBERS IN FACT USED THE "FORESTS, RIVERS, STREAMS,
MOUNTAINS, AND OTHER NATURAL RESOURCES . . ."  FOR RECREATIONAL
PURPOSES, AND THESE USES WERE ADVERSELY AFFECTED BECAUSE THE
COMMISSION'S RATE INCREASES DISCOURAGE THE REUSE OF RECYCLABLE
COMMODITIES, SUCH AS BOTTLES AND CANS, AND ENCOURAGE THE DEPLETION OF
NATURAL RESOURCES. 

IN SIERRA CLUB V. MORTON, 405 U.S. 727, 734, THIS COURT STATED THAT,
"WE DO NOT QUESTION THAT (ENVIRONMENTAL) HARM MAY AMOUNT TO AN 'INJURY
IN FACT' SUFFICIENT TO LAY THE BASIS FOR STANDING UNDER (5 U.S.C. ^
702) OF THE APA.  AESTHETIC AND ENVIRONMENTAL WELL-BEING, LIKE ECONOMIC
WELL-BEING, ARE IMPORTANT INGREDIENTS OF THE QUALITY OF LIFE IN OUR
SOCIETY, AND THE FACT THAT PARTICULAR ENVIRONMENTAL INTERESTS ARE
SHARED BY THE MANY RATHER THAN THE FEW DOES NOT MAKE THEM LESS
DESERVING OF LEGAL PROTECTION THROUGH THE JUDICIAL PROCESS."  THE
MEMBERS OF SCRAP, HAVE CLEARLY ALLEGED AN "INJURY IN FACT" TO THE
ENVIRONMENT AND TO THEIR OWN PERSONAL CONTINUED USE OF IT. 

"THERE IS NOTHING UNUSUAL OR NOVEL IN GRANTING THE CONSUMING PUBLIC
STANDING TO CHALLENGE ADMINISTRATIVE ACTIONS."  OFFICE OF COMMUNICATION
OF UNITED CHURCH OF CHRIST V. FCC, 123 U.S. APP. D. C. 328, 359 F.2D
994.  THIS COURT HAS INDICATED THAT WHERE "STATUTES ARE CONCERNED, THE
TREND IS TOWARD ENLARGEMENT OF THE CLASS OF PEOPLE WHO MAY PROTEST
ADMINISTRATIVE ACTION."  DATA PROCESSING SERVICE V. CAMP, 397 U.S. 150,
154. 

LITTERING IS A COMMONPLACE PHENOMENON THAT AFFECTS EVERY PERSON,
ALMOST EVERYWHERE.  FROM REPORTS AND WRITINGS WE KNOW THAT LITTERING
DEFACES MOUNTAIN TRAILS, ALPINE MEADOWS, AND EVEN OUR HIGHEST PEAKS. 
THOSE IN THE VALLEYS ARE OFTEN ALMOST INUNDATED WITH LITTER.  WHERE A
RIVER IS POLLUTED AND A PERSON IS DEPENDENT ON IT FOR DRINKING WATER, I
SUPPOSE THERE WOULD NOT BE THE SLIGHTEST DOUBT THAT HE WOULD HAVE
STANDING IN COURT TO PRESENT HIS CLAIM.  I ALSO SUPPOSE THERE IS NOT
THE SLIGHTEST DOUBT THAT WHERE SMOG SETTLES ON A CITY, ANY PERSON WHO
MUST BREATHE THAT AIR OR FEEL THE SULPHURIC ACID FORMING IN HIS EYES,
WOULD HAVE STANDING IN COURT TO PRESENT HIS CLAIM.  I THINK IT IS
EQUALLY OBVIOUS THAT ANY RESIDENT OF AN AREA WHOSE PATHS ARE STREWN
WITH LITTER, WHOSE PARKS, OR PICNIC GROUNDS ARE DEFACED BY IT HAS
STANDING TO TENDER HIS COMPLAINT TO THE COURT.  SIERRA CLUB V. MORTON,
SUPRA, WOULD SEEM TO COVER THIS CASE, FOR LITTERING ABETTED BY THE
FAILURE TO RECYCLE WOULD CLEARLY SEEM TO IMPLICATE RESIDENTS TO WHOM
"THE AESTHETIC AND RECREATIONAL VALUES OF THE AREA" ARE IMPORTANT. 
ID., AT 735.  FOR THE REASONS STATED IN MY OPINION IN SIERRA CLUB V.
MORTON, SUPRA, I AGREE WITH THE COURT THAT APPELLEES HAVE STANDING, BUT
LIKE MR. JUSTICE BLACKMUN, I WOULD NOT REQUIRE APPELLEES, IN THEIR
INDIVIDUAL CAPACITY, TO PROVE INJURY IN FACT.  AS MR. JUSTICE BLACKMUN
STATES, IT SHOULD BE SUFFICIENT IF APPELLEES, "AS RESPONSIBLE AND
SINCERE REPRESENTATIVES OF ENVIRONMENTAL INTERESTS, SHOW THAT THE
ENVIRONMENT WOULD BE INJURED IN FACT . . ." 

        II 

THE COUNCIL ON ENVIRONMENTAL QUALITY (CEQ), CREATED IN THE EXECUTIVE
OFFICE OF THE PRESIDENT, 42 U.S.C. ^ 4342, ESTIMATED IN 1969 THAT THIS
NATION PRODUCED MORE THAN 4.3 BILLION TONS OF SOLID REFUSE, INCLUDING
ABOUT 30 MILLION TONS OF PAPER, 30 MILLION TONS OF INDUSTRIAL FLY ASH,
15 MILLION TONS OF SCRAP METAL, 4 MILLION TONS OF PLASTICS, 100 MILLION
AUTOMOBILE TIRES, 30 BILLION BOTTLES, 60 BILLION CANS, AND MILLIONS OF
DISCARDED AUTOMOBILES AND APPLIANCES.  FIRST ANNUAL REPORT OF CEQ, AUG.
1970, PP. 107 - 113.  IT REPORTED THAT WHILE MOST OF THE SECONDARY
MATERIAL COULD BE REUSED AS A REPLACEMENT FOR VIRGIN MATERIAL, ONLY A
SMALL FRACTION WAS RECYCLED.  IBID.  ONE OF THE REASONS FOR THE ABSENCE
OF RECYCLING WAS THE HIGH COST BOTH OF COLLECTION OF THE MATERIAL AND
THE TRANSPORTATION COSTS.  IBID. 

AS NOTED, ONE OF THE PURPOSES OF THE ACT WAS TO "ENHANCE THE QUALITY
OF RENEWABLE RESOURCES AND APPROACH THE MAXIMUM ATTAINABLE RECYCLING OF
DEPLETABLE RESOURCES."  42 U.S.C. ^ 4331(B) (6).  ON OCTOBER 9, 1970,
CHAIRMAN RUSSELL TRAIN OF CEQ WROTE THE INTERSTATE COMMERCE COMMISSION
AS FOLLOWS: 

     "THE COUNCIL ON ENVIRONMENTAL QUALITY IS DEEPLY CONCERNED WITH

  ALL FACETS OF ENVIRONMENTAL QUALITY.  SOLID WASTE DISPOSAL IS ONE

  IMPORTANT ASPECT OF THE TOTAL POLLUTION PROBLEM, AND RECYCLING IS

  A NEW AND DESIRABLE ALTERNATIVE TO SOLID WASTE DISPOSAL WHICH THE

  COUNCIL STRONGLY SUPPORTS.  THE DEGREE TO WHICH THIS TECHNIQUE

  WILL BE USED DEPENDS ALMOST ENTIRELY ON ECONOMICS.  TRANSPORATION

  COSTS, TO THE DEGREE THEY INCREASE SECONDARY OR SCRAP MATERIALS

  COSTS COMPARED TO THE RAW MATERIALS WITH WHICH THEY COMPETE, ACT

  AS A DISINCENTIVE TO RECYCLING.  THE COUNCIL BELIEVES THAT

  SEVERAL RAIL HAUL COSTS BIASES CURRENTLY EXIST AND WOULD LIKE TO

  DISCUSS THESE CASES WITH YOU.  . .  IN GENERAL, ACROSS-THE-BOARD

  PERCENTAGE INCREASES ONLY WIDEN EXISTING PRICE BIASES AGAINST

  SECONDARY MATERIALS.  ALSO, THESE INCREASES RAISE THE COSTS OF

  DOING BUSINESS WHICH CAN HINDER THE SALVAGE AND RECLAMATION

  INDUSTRY. 

      "IN LIGHT OF THE PRESIDENT'S CONCERN WITH ENVIRONMENTAL

  QUALITY, THE GROWING PROBLEMS OF SOLID WASTE AND THE IMPORTANCE

  OF RECYCLING TO ALLEVIATING THEM, I WOULD LIKE TO EXPRESS THE

  COUNCIL'S HOPE THAT THE INTERSTATE COMMERCE COMMISSION'S ACTIONS

  ON THE KEY ISSUE OF SCRAP MATERIAL TRANSPORTATION RATES WILL BE

  CONSISTENT WITH THE NATION'S ENVIRONMENTAL QUALITY GOALS."  APP.

  68. 

IN DECEMBER 1971 SUBSTANTIALLY ALL THE RAILROADS FILED WITH THE
COMMISSION A REQUEST TO IMPOSE A 2.5% SURCHARGE ON VIRTUALLY ALL
FREIGHT.  THE PROCEDURAL DETAILS WHICH FOLLOWED ARE NOT PRESENTLY
MATERIAL.  SUFFICE IT TO SAY THAT SHIPPERS OF RECYCLABLE MATERIALS
SUBMITTED VERIFIED STATEMENTS IN SUPPORT OF THEIR VIEW THAT RATE
INCREASES WOULD INTENSIFY THE DISINCENTIVES TO SHIPMENT AND USE OF
RECYCLABLE MATERIALS.  THUS THE INSTITUTE FOR SCRAP IRON AND STEEL
SUBMITTED A STUDY SHOWING: 

     "(1) PRESENT SCRAP MARKETS ARE RETARDED BECAUSE OF TRANSPORT

  RATES WHICH ENCOURAGE THE USAGE OF IRON ORE.  (2) FUTURE SCRAP

MARKETS ARE BEING AFFECTED BECAUSE NEW INVESTMENT THAT WOULD

  LOGICALLY BE DIRECTED TO SCRAP-INTENSIVE STEELMAKING IS DIVERTED

  BECAUSE OF THE EXISTING FREIGHT RATE STRUCTURE TO ORE-INTENSIVE

  STEELMAKING.  (3) IRON ORE (A LIMITED DOMESTIC NATURAL RESOURCE)

  IS BEING EXPLOITED WHEN IT CAN AND SHOULD BE CONSERVED.  (4) SOME

  SCRAP IRON THAT SHOULD BE RECYCLED IS UNABLE TO MOVE, THUS THE

  ENVIRONMENT IS DESPOILED BY UNNECESSARY ACCUMULATIONS OF SOLID

  METALLIC WASTE."  T. BARNES, IMPACT OF RAILROAD FREIGHT RATES ON

THE RECYCLING OF FERROUS SCRAP (JANUARY 14, 1972). 

THE COMMISSION INSTITUTED A PROCEEDING CONCERNING THE GUIDELINES
WHICH ENVIRONMENTAL IMPACT STATEMENTS REQUIRED UNDER THE ACT SHOULD
FOLLOW.  339 I. C. C. 508.  A SPOKESMAN FOR THE EASTERN RAILROADS FILED
AN IMPACT STATEMENT WHICH SAID THAT "ANY POSSIBLE ADVERSE ENVIRONMENTAL
IMPACT IN THE FORM OF REDUCED MOVEMENTS OF COMMODITIES BY RAIL WILL
COME ONLY IF WE FAIL TO PROVIDE ADEQUATE AND EFFICIENT SERVICE" AND
THAT THE NEED OF THE RAILROADS TO THAT END WAS FOR INCREASED REVENUES. 
APPELLEES FILED A PROTEST AND A REQUEST FOR A SUSPENSION OF THE
PROPOSED SURCHARGE ALLEGING THAT THE PRESENT RAILROAD RATE STRUCTURE
DISCOURAGES THE MOVEMENT OF "RECYCLABLE" GOODS AND THAT THE SURCHARGE
WOULD FURTHER DISCOURAGE RECYCLING. 

THE COMMISSION, ALLOWING THE SURCHARGE FOR A LIMITED PERIOD, FOUND
THAT IT WOULD "HAVE NO SIGNIFICANT ADVERSE EFFECT IN THE MOVEMENT OF
TRAFFIC BY RAILWAY OR ON THE QUALITY OF THE HUMAN ENVIRONMENT" WITHIN
THE MEANING OF THE 1969 ACT.  SEE 340 I. C. C. 358; 341 I. C. C. 287. 
CHAIRMAN TRAIN OF CEQ PROTESTED TO THE COMMISSION ON OCTOBER 30, 1972: 

     "IT IS UNDERSTANDABLE THAT DIFFICULTIES WILL BE ENCOUNTERED IN

  QUANTIFYING THE ENVIRONMENTAL CONSEQUENCES OF AN INCREMENTAL

  FREIGHT RATE INCREASE ON RECYCLABLE MATERIALS.  IN OUR VIEW,

  HOWEVER, THESE CONSEQUENCES MUST BE ASSESSED IN THE LIGHT OF THE

  RATE DISPARITY BETWEEN SECONDARY AND PRIMARY MATERIALS THAT GIVES

  RISE TO THE PROBLEM IN THE FIRST PLACE.  THIS DISPARITY IS A

  MATTER OF AN ENTIRELY DIFFERENT MAGNITUDE, CALLING FOR A THOROUGH

ENVIRONMENTAL ASSESSMENT AS A PRECONDITION TO DETERMINING WHETHER

  SUBSEQUENT INCREMENTAL INCREASES REQUIRE ADDITIONAL ENVIRONMENTAL

  IMPACT STATEMENTS . . . CLEARLY AT SOME POINT INCREASES WHICH

  MIGHT BE INDIVIDUALLY 'INSIGNIFICANT' BECOME CUMULATIVELY

  'SIGNIFICANT.'  IN ADDITION, THE CLAIM THAT FREIGHT RATES ON

  RECYCLED PRODUCTS MUST BE INCREASED TO RESPOND TO 'EMERGENCY'

  REVENUE NEEDS PENDING COMPLETION OF THE REQUIRED, OVERALL

  ENVIRONMENTAL EVALUATION, LOSES MUCH OF ITS FORCE AS MONTHS TURN

  INTO YEARS AND THE BASIC INVESTIGATION REMAINS UNCOMPLETED. 

  FINALLY, EVEN THE 'EMERGENCY' ARGUMENT ITSELF, HOWEVER

  LEGITIMATE, IN NO WAY FORECLOSES THE CONSIDERATION OF

  ALTERNATIVES WHICH WOULD BOTH MEET REVENUE NEEDS AND AT THE SAME

TIME AVOID FURTHER POTENTIAL ENVIRONMENTAL DAMAGE WHILE THE BASIC

  RATE STRUCTURE ISSUE IS BEING RESOLVED.  ALTERNATIVES OF THIS

  SORT WERE, IN FACT.  SUGGESTED IN THE PARTIAL DISSENTING OPINIONS

  OF COMMISSIONERS BROWN AND DEASON (WHO WOULD HAVE DENIED APPROVAL

  OF INCREASES FOR RECYCLABLE COMMODITIES), WITH NO INDICATION IN

  THE COMMISSION'S MAJORITY REPORT THAT SUCH MEASURES WOULD NOT

  HAVE BEEN SUFFICIENT TO MEET THE REVENUE NEEDS RELIED ON TO

  JUSTIFY THE RATE INCREASES.  . .  IN SUMMARY, THE COUNCIL FEELS

  THAT THE BASIC ENVIRONMENTAL ISSUES RELATED TO THE EXISTING

FREIGHT RATE STRUCTURE AND CHANGES THERETO, MUST BE EVALUATED IN

  A LOGICAL, ANALYTICAL AND TIMELY FASHION IN COMPLIANCE WITH THE

  REQUIREMENTS OF THE NATIONAL ENVIRONMENTAL POLICY ACT.  THE

  COMMISSION'S ACTIONS TO DATE APPEAR TO BE INCONSISTENT WITH THE

  OBJECTIVES OF NEPA, AND THE ANALYSES UNDERTAKEN TO DATE BY THE

  COMMISSION APPEAR TO OFFER AN INADEQUATE BASIS FROM WHICH TO DRAW

  CONCLUSIONS CONCERNING THE IMPACT OF FREIGHT RATES ON RECYCLING

  AND ENVIRONMENTAL QUALITY.  OUR STAFF IS AVAILABLE TO DISCUSS THE

 NEPA PROCEDURAL ISSUES AS WELL AS TO ASSIST IN STRUCTURING THE

  ANALYTICAL WORK REQUIRED TO ASSESS ADEQUATELY THE ENVIRONMENTAL

  IMPACT OF FREIGHT RATES."  /3/  APP. 87 - 89. 

THE THREE-JUDGE DISTRICT COURT HELD THAT THE CONCLUSION OF THE
COMMISSION THAT THE RATE INCREASE WOULD HAVE "NO SIGNIFICANT ADVERSE
EFFECT" ON THE ENVIRONMENT WITHIN THE MEANING OF EPA WAS "TRANSPARENT"
AND "A RUSE."  346 F. SUPP., AT 200 - 201.  THIS LEADS TO AN ANALYSIS
OF ^ 102 OF NEPA.  /4/ 

THAT SECTION IS DIRECTED TO "ALL AGENCIES OF THE FEDERAL
GOVERNMENT," WHICH OF COURSE INCLUDES THE INTERSTATE COMMERCE
COMMISSION.  IT DIRECTS THE AGENCY TO INTERPRET AND ADMINISTER "THE
POLICIES, REGULATIONS, AND PUBLIC LAWS" WHICH IT ADMINISTERS "TO THE
FULLEST EXTENT POSSIBLE" IN ACCORDANCE WITH THE POLICIES OF EPA.  IT
DIRECTS THE AGENCY /5/  TO INCLUDE IN "MAJOR FEDERAL ACTIONS
SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT" A
DETAILED STATEMENT "BY THE RESPONSIBLE OFFICIAL ON -- (I) THE
ENVIRONMENTAL IMPACT OF THE PROPOSED ACTION, (II) ANY ADVERSE
ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED SHOULD THE PROPOSAL BE
IMPLEMENTED, (III) ALTERNATIVES TO THE PROPOSED ACTION, (IV) THE
RELATIONSHIP BETWEEN LOCAL SHORT-TERM USES OF MAN'S ENVIRONMENT AND THE
MAINTENANCE AND ENHANCEMENT OF LONG-TERM PRODUCTIVITY, AND (V) ANY
IRREVERSIBLE AND IRRETRIEVABLE COMMITMENTS OF RESOURCES WHICH WOULD BE
INVOVLED IN THE PROPOSED ACTION SHOULD IT BE IMPLEMENTED.  PRIOR TO
MAKING ANY DETAILED STATEMENT, THE RESPONSIBLE FEDERAL OFFICIAL SHALL
CONSULT WITH AND OBTAIN THE COMMENTS OF ANY FEDERAL AGENCY WHICH HAS
JURISDICION BY LAW OR SPECIAL EXPERTISE WITH RESPECT TO ANY
INVIRONMENTAL IMPACT INVOLVED.  COPIES OF SUCH STATEMENT AND THE
COMMENTS AND VIEWS OF THE APPROPRIATE FEDERAL, STATE, AND LOCAL
AGENCIES, WHICH ARE AUTHORIZED TO DEVELOP AND ENFORCE ENVIRONMENTAL
STANDARDS, SHALL BE MADE AVAILABLE TO THE PRESIDENT, THE COUNCIL ON
ENVIRONMENTAL QUALITY AND TO THE PUBLIC AS PROVIDED BY SECTION 552 OF
TITLE 5, . . . AND SHALL ACCOMPANY THE PROPOSAL THROUGHT THE EXISTING
AGENCY REVIEW PROCESSES."  83 STAT. 853. 

RATES AFFECTING LITTER, LIKE RATES AFFECTING OTHER COMMODITIES,
OBVIOUSLY ARE RELEVANT TO THE EASE AND EXPEDITION WITH WHICH IT WILL BE
TRANSPORTED.  TO GET THE LITTER TO APPROPRIATE RECYCLING PLANTS IN THE
QUANTITITES NEEDED TO PROTECT OUR FAST DEPLETING FORESTS AND OUR NONE
RENEWABLE RESOURCES /6/  AND TO RELIEVE OUR LANDSCAPE OF THE LITTER
THAT PLAGUES US MAY NEED SPECIAL INCENTIVE RATES. 

THE REPORT, H. R. CONF. REP. NO. 91 - 765, MAKES CLEAR THAT NO
AGENCY OF THE FEDERAL GOVERNMENT IS EXEMPT AND THAT EACH SHOULD COMPLY
UNLESS EXISTING LAW APPLICABLE TO THE AGENCY "EXPRESSLY PROHIBITS OR
MAKES FULL COMPLIANCE WITH ONE OF THE DIRECTIVES IMPOSSIBLE."  THE
REPORT STATES: 

"THE PURPOSE OF THE NEW LANGUAGE IS TO MAKE IT CLEAR THAT EACH
AGENCY OF THE FEDERAL GOVERNMENT SHALL COMPLY WITH THE DIRECTIVES SET
OUT IN SUCH SUBPARAGRAPHS (A) THROUGH (H) UNLESS THE EXISTING LAW
APPLICABLE TO SUCH AGENCY'S OPERATIONS EXPRESSLY PROHIBITS OR MAKES
FULL COMPLIANCE WITH ONE OF THE DIRECTIVES IMPOSSIBLE.  IF SUCH IS
FOUND TO BE THE CASE, THEN COMPLIANCE WITH THE PARTICULAR DIRECTIVE IS
NOT IMMEDIATELY REQUIRED.  HOWEVER, AS TO OTHER ACTIVITIES OF THAT
AGENCY, COMPLIANCE IS REQUIRED.  THUS, IT IS THE INTENT OF THE
CONFEREES THAT THE PROVISION 'TO THE FULLEST EXTENT POSSIBLE' SHALL NOT
BE USED BY ANY FEDERAL AGENCY AS A MEANS OF AVOIDING COMPLIANCE WITH
THE DIRECTIVES SET OUT IN SECTION 102.  RATHER, THE LANGUAGE IN SECTION
102 IS INTENDED TO ASSURE THAT ALL AGENCIES OF THE FEDERAL GOVERNMENT
SHALL COMPLY WITH THE DIRECTIVES SET OUT IN SAID SECTION 'TO THE
FULLEST EXTENT POSSIBLE' UNDER THEIR STATUTORY AUTHORIZATIONS AND THAT
NO AGENCY SHALL UTILIZE AN EXCESSIVELY NARROW CONSTRUCTION OF ITS
EXISTING STATUTORY AUTHORIZATIONS TO AVOID COMPLIANCE."  ID., AT 9 -
10. 

THE DISTRICT COURT, ACTING RESPONSIBLY IN LIGHT OF THE BROAD AND
CLEAR-CUT POLICY OF THE ACT CONCLUDED THAT IT SETS A "'HIGH STANDARD'"
FOR FEDERAL AGENCIES, THAT THERE IS NO "'ESCAPE HATCH FOR FOOTDRAGGING
AGENCIES,'" THAT THE ACT DOES NOT MAKE THE PREPARATION AND USE OF THESE
IMPACT STATEMENTS "'DISCRETIONARY,'" THAT CONGRESS DID NOT INTEND THAT
THIS ACT BE "'A PAPER TIGER.'"  346 F. SUPP., AT 199.  /7/ 

ARROW TRANSPORTATION CO. V. SOUTHERN R. CO., 372 U.S. 658, DOES NOT
PRECLUDE REVIEW HERE.  IN ARROW THERE WERE RATES WHICH THE COMMISSION
HAD THE POWER TO SUSPEND BUT HAD NOT SUSPENDED.  THE POWER OF
SUSPENSION WAS ENTRUSTED TO THE COMMISSION ONLY; AND WE HELD THAT THE
COURTS SHOULD NOT INTRUDE WHEN THE COMMISSION HAS NOT ACTED.  HERE THE
COMMISSION HAS ACTED; IT HAS FOUND THAT "THE INCREASES HERE PROPOSED
ARE JUST AND REASONABLE, THAT THE REVENUES DERIVED THEREFROM WILL
RESULT IN EARNINGS AND RATES OF RETURN . . . NOT IN EXCESS OF THAT
REQUIRED TO ENABLE" THE CARRIERS "TO RENDER ADEQUATE AND EFFICIENT
TRANSPORTATION AT THE LOWEST COST CONSISTENT WITH THE FURNISHING OF
SUCH SERVICE."  EX PARTE NO. 281, ORDER OF FEB. 1, 1972 (UNREPORTED). 
THE COMMITTION SAID IT WAS NOT PRESCRIBING RATES, THOUGH IT ATTACHED
CONDITIONS ON APPROVAL OF THE RATES WITHOUT SUSPENSION.  IT MADE CLEAR
IT WOULD SUSPEND THE NEW RATES IF THE CONDITIONS WERE NOT ADDED.  AS
STATED BY THE THREE-JUDGE COURT:  "A SUSPENSION DECISION WHICH
EFFECTIVELY BLACKMAILS THE CARRIERS INTO SUBMITTING AGENCY-AUTHORED
RATES IS FUNCTIONALLY INDISTINGUISHABLE FROM AN AGENCY ORDER SETTING
THOSE RATES"  346 F. SUPP., AT 197. 

MOREOVER, AS THE THREE-JUDGE COURT HELD AND AS JUDGE FRIENDLY
OBSERVED IN CITY OF NEW YORK V. UNITED STATES, 337 F. SUPP. 150, 164,
"NEPA IS A NEW AND UNUSUAL STATUTE IMPOSING SUBSTANTIVE DUTIES WHICH
OVERLIE THOSE IMPOSED ON AN AGENCY BY THE STATUTE OR STATUTES FOR WHICH
IT HAS JURISDICTIONAL RESPONSIBILITY." 

THE COURT TODAY GREATLY WEAKENS NEPA IN A CRUCIALLY IMPORTANT
SEGMENT OF THE FEDERAL ENVIRONMENTAL FIELD.  MOVEMENT OF LITTER TO
RECYCLING PLANTS /8/  IS CRITICALLY IMPORTANT, AS CHAIRMAN TRAIN MAKES
ABUNDANTLY CLEAR.  THE ALTERNATIVE IS TO LEAVE IT UNDERFOOT OR TO CART
IT OFF AS GARBAGE TO INCINCERATORS THAT POLLUTE THE AIR OR TO LANDFILLS
THAT ARE GETTING MORE AND MORE DIFFICULT TO FIND.  /9/  WE KNOW THAT
RECYCLED PAPER, RECYCLED COPPER, RECYCLED IRON, RECYCLED GLASS ARE
PRACTICAL.  THE FEDERAL BUREAU OF MINES IN ITS PILOT PLANT AT
EDMONSTON, MARYLAND, BOASTS THAT "URBAN ORE," AS IT CALLS THIS DEBRIS,
COSTS ABOUT $3 A TON AND RECYCLED IS WORTH $11 A TON.  WE KNOW THAT WE
DEAL HERE WITH NONRENEWABLE RESOURCES.  WE ARE TOLD THAT RECYCLING
PAPER SAVES THOUSANDS OF ACRES OF TREES A YEAR.  /10/ 

UNDER THE ACT, THE APPRAISAL BY THE COUNCIL ON ENVIRONMENTAL QUALITY
OF WHICH RUSSELL TRAIN IS THE CHAIRMAN IS A WEIGHTY ONE, FOR UNDER ^
204 OF THE ACT IT HAS THE RESPONSIBILITY "TO APPRAISE THE VARIOUS
PROGRAMS AND ACTIVITITES OF THE FEDERAL GOVERNMENT" IN LIGHT OF THE
POLICY OF THE ACT AND "TO DEVELOP AND RECOMMEND . . . NATIONAL POLICIES
TO FOSTER AND PROMOTE THE IMPROVEMENT OF ENVIRONMENTAL QUALITY."  83
STAT. 855.  CEQ IS, IN OTHER WORDS, THE EXPERT OMBUDSMAN IN THE
ENVIRONMENTAL AREA. 

THE APPARENT TENDENCY AMONG FEDERAL AGENCIES, CONGRESSMAN DINGELL
SAYS, /11/  IS TO DECIDE FIRST WHAT THEY WANT TO DO AND THEN PREPARE AN
IMPACT STATEMENT AS AN APOLOGIA FOR WHAT THEY HAVE DONE.  THAT PUTS THE
CART BEFORE THE HORSE.  THAT IS WHAT THE COMMISSION DID HERE.  BUT THAT
IS TO ADOPT "AN EXCESSIVELY NARROW CONSTRUCTION" OF ITS STATUTORY POWER
"TO AVOID COMPLIANCE" WITH THE NEW ENVIRONMENTAL STANDARDS -- ALL AS
CONDEMNED IN THE CONFERENCE REPORT, SUPRA, AT 10.  THAT IS TO SAY,
ENVIRONMENTAL CONSIDERATIONS ARE, SO FAR AS POSSIBLE, TO SHAPE ALL
AGENCY POLICIES AND DECISIONS. 

THESE CASES ARE, INDEED, EXHIBIT A OF THE CURRENT PRACTICE OF
FEDERAL AGENCIES TO UNDERMINE THE POLICY ANNOUNCED BY CONGRESS IN
NEPA.  RAIL RATES WERE LONG DISCRIMINATORY IN RETARDING THE INDUSTRIAL
DEVELOPMENT OF THE SOUTH.  NEW YORK V. UNITED STATES, 331 U.S. 284. 
THE PRESENT RATES ARE ARGUABLY DISCRIMINATORY AGAINST THE REMOVAL OF
THE LITTER WHICH IS ABOUT TO ENGULF US.  THE WISDOM OF CHAIRMAN TRAIN,
RATHER THAN THE TECHNICAL MANEUVERS OF THE COMMISSION, SHOULD BE OUR
GUIDE.     I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

/1/  IN A BUREAU OF MINES' SURVEY, IT WAS ESTABLISHED THAT METALS
AND GLASS ACCOUNT FOR APPROXIMATELY 75 PERCENT OF THE WEIGHT OF THE
RESIDUES IN MUNICIPAL INCINERATOR WASTE.  ECONOMICS OF RECYCLING METALS
AND MINERALS FROM URBAN REFUSE, BUREAU OF MINES TECHNICAL PROGRESS
REPORT NO. 33, P. 2 (APR. 1971).  FROM THESE MATERIALS, IF RECYCLED,
FAMILIAR PRODUCTS SUCH AS BOTTLES, NEWSPAPERS, IRON INGOTS, PAPER PULP,
FUEL OIL, AND METHANE GAS CAN BE MANUFACTURED.  IN ADDITION, NEW
PRODUCTS ARE BEING DEVELOPED, SUCH AS GLASSPHALT FOR STREET PAVING,
INSULATION, GLASS WOOL, AND GLASS BRICKS, IN VARIOUS COLORS THAT MEET
SPECIFICATIONS FOR "SEVERE WEATHER" FACING BRICK.  ID., AT 7. 

THIS PROJECT WAS LAUNCHED UNDER THE RESOURCE RECOVERY ACT OF 1970,
84 STAT. 1227, 42 U.S.C. ^ 3251 ET SEQ., UNDER WHICH THE SECRETARY OF
HEW WAS AUTHORIZED TO PROVIDE TECHNICAL AND FINANCIAL ASSISTANCE IN
PLANNING AND DEVELOPING RESOURCE RECOVERY AND SOLID WASTE DISPOSAL
PROGRAMS. 

FOR A DETAILED ACCOUNT OF A RESOURCE RECOVERY MILL SEE ROSS, HOW TO
SUCCEED IN RECYCLING, ENVIRONMENTAL QUALITY MAGAZINE, JUNE 1973, P.
51. 

/2/  THE NECESSITY OF REASONABLE TRANSPORTATION RATES IS EVEN MORE
APPARENT WHEN IT IS REALIZED THAT THE VOLUME OF RESIDUE WHICH IS
PROCESSED AT A MAJOR RECYCLING PLANT IS BETWEEN 250 AND 1,000 TONS PER
DAY.  (ECONOMICS OF RECYCLING METALS AND MINERALS FROM URBAN REFUSE,
SUPRA, N. 1, AT 1.)  MASSIVE BULK TRANSPORTATION IS THEREFORE ESSENTIAL
TO THESE PLANT OPERATIONS. 

THE PROBLEM IS EVEN MORE CRITICAL IN URBAN AREAS WHERE THERE IS A
HIGH CONCENTRATION OF SOLID WASTE BEING GENERATED AND TRANSPORTATION TO
OUTLYING RECYCLING PLANTS IS A MAJOR COST FACTOR.  IN 1968 A NATIONAL
SURVEY FOUND THAT AN AVERAGE OF 8.2 POUNDS OF WASTE PER CAPITA WAS
COLLECTED DAILY IN URBAN AREA; THIS FIGURE HAS NOT RISEN TO 9 POUNDS. 
IF PRESENT TRENDS CONTINUE, THIS FIGURE COULD BE AS HIGH AS 12 POUNDS
IN ANOTHER 10 YEARS.  IN OUR URBAN AREAS AS A WHOLE, THE SOLID WASTE
GENERATED IS FAST APPROACHING A TON A YEAR FOR EACH MAN, WOMAN, AND
CHILD.  KRAMER, ENERGY CONSERVATION AND WASTE RECYCLING, SC ENCE AND
PUBLIC AFFIARS 13, 17 (APR. 1973). 

/3/  IN HIS REPORT BEFORE THE SENATE, SENATOR JACKSON, ONE OF THE
THREE LEGISLATORS MOST RESPONSIBLE FOR NEPA, STATED:  "TO INSURE THAT
THE POLICIES AND GOALS DEFINED IN THIS ACT ARE INFUSED INTO THE ONGOING
PROGRAMS AND ACTIONS OF THE FEDERAL GOVERNMENT, THE ACT ALSO
ESTABLISHES SOME IMPORTANT 'ACTION-FORCING' PROCEDURES.  SECTION 102
AUTHORIZES AND DIRECTS ALL FEDERAL AGENCIES, TO THE FULLEST EXTENT
POSSIBLE, TO ADMINISTER THEIR EXISTING LAWS, REGULATIONS, AND POLICIES
SET FORTH IN THIS ACT.  IT ALSO DIRECTS ALL AGENCIES TO ASSURE
CONSIDERATION OF THE ENVIRONMENTAL IMPACT OF THEIR ACTIONS IN DECISION
MAKING.  IT REQUIRES AGENCIES WHICH PROPOSE ACTIONS TO CONSULT WITH
APPROPRIATE FEDERAL AND STATE AGENCIES HAVING JURISDICTION OR EXPERTISE
IN ENVIRONMENTAL MATTERS AND TO INCLUDE ANY COMMENTS MADE BY THOSE
AGENCIES WHICH OUTLINE THE ENVIRONMENTAL CONSIDERATIONS INVOLVED WITH
SUCH PROPOSALS. 

"TAKEN TOGETHER, THE PROVISIONS OF SECTION 102 DIRECTS ANY FEDERAL
AGENCY WHICH TAKES ACTION THAT IT MUST TAKE INTO ACCOUNT ENVIRONMENTAL
MANAGEMENT AND ENVIRONMENTAL QUALITY CONSIDERATIONS."  115 CONG. REC.
40416 (1969). 

/4/  THE TOTALITY OF ^ 102 IS SO IMPORTANT TO THIS LITIGATION THAT I
HAVE SET IT FORTH IN APPENDIX II TO THIS DISSENT. 

/5/  SENATOR JACKSON WAS REPORTED AS SAYING: 

"WE EXPECTED SECTION 102 OF THE ACT WHICH REQUIRES ENVIRONMENTAL
IMPACT STATEMENTS AND ANALYSIS OF ALTERNATIVES FOR ALL MAJOR FEDERAL
ACTIONS SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT TO
FORCE THE AGENCIES TO MORE.  . .  WE DID NOT ANTICIPATE THAT IT WOULD
BE PRIVATE PARTIES THROUGH THE COURTS THAT WOULD FORCE THE COMPLIANCE. 
THIS IS WHAT HAS MADE IT WORK."  CAHN, CAN FEDERAL LAW HELP CITIZENS
SAVE NATURE'S FRAGILE BEAUTY?, CHRISTIAN SCIENCE MONITOR 12 (FEB. 28,
1973). 

/6/  WALDO E. SMITH, OF THE AMERICAN GEOPHYSICAL UNION, RECENTLY
STATED: "THE TOTAL SUPPLY OF MOST METALS IS SHARPLY LIMITED; EVEN NOW
WE MUST DIG DEEPER, GO FARTHER, AND USE LOWER GRADE ORES.  NO OPTIMISM
IS JUSTIFIED HERE.  THE SUPPLY CAN BE EXTENDED SUBSTANTIALLY BY
INTELLIGENT RECYCLING, WHICH SHOULD BE AN IMPORTANT BY-PRODUCT OF OUR
CLEANING UP TO MAINTAIN A CLEAN ENVIRONMENT."  RESOURCES AND LONG
FORECASTS, SCIENCE AND PUBLIC AFFAIRS 21, 22 (MAY 1973). 

/7/  WHEN CONGRESS DESIRES EXCEPTIONS TO BE MADE TO THE IMPACT
STATEMENT REQUIREMENT UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT,
EXPRESS EXEMPTION IS PROVIDED.  FOR EXAMPLE, PUB. LAW 92 - 307, 86
STAT. 191, PROVIDES THAT THE ATOMIC ENERGY COMMISSION CAN GRANT A
TEMPORARY OPERATING LICENSE FOR A NUCLEAR POWER REACTOR WITHOUT THE
COMPLETION OF AN ENVIRONMENTAL IMPACT STATEMENT, IF THE APPLICATION FOR
THE OPERATING LICENSE WAS FILED BEFORE SEPTEMBER 9, 1971, AND THE
COMMISSION HOLDS A HEARING WHICH LEADS TO THE FINDINGS, AMONG OTHERS,
THAT THE OPERATION OF THE FACILITY DURING THE PERIOD OF THE TEMPORARY
OPERATING LICENSE IN ACCORDANCE WITH ITS TERMS AND CONDITIONS WILL
PROVIDE ADEQUATE PROTECTION OF THE ENVIRONMENT DURING THAT PERIOD AND
THAT THE OPERATION OF THE FACILITY IS ESSENTIAL TOWARD INSURING THE
POWER-GENERATING CAPACITY OF A UTILITY SYSTEM.  THE COMMISSION IS
EMPOWERED TO IMPOSE SUCH TERMS AND CONDITIONS AS IT DEEMS NECESSARY,
AND ITS DECISION IS SUBJECT TO JUDICIAL REVIEW. 

SOME FEDERAL AGENCIES ARE TAKING AFFIRMATIVE ACTION TO PROMOTE THE
PURPOSES OF ^ 105.  THUS THE SECURITIES AND EXCHANGE COMMISSION
RECENTLY ADOPTED AMENDMENTS TO ITS REGISTRATION AND REPORTING FORMS TO
REQUIRE MORE MEANINGFUL DISCLOSURE OF CERTAIN ITEMS PERTAINING TO THE
EFFECT ON THE ISSUER'S BUSINESS OF COMPLIANCE WITH FEDERAL STATE, AND
LOCAL LAWS AND REGULATIONS RELATING TO THE PROTECTION OF THE
ENVIRONMENT.  THE AMENDMENTS WILL REQUIRE AS A PART OF THE DESCRIPTION
OF THE ISSUER'S BUSINESS, APPROPRIATE DISCLOSURES WITH RESPECT TO THE
MATERIAL EFFECTS WHICH COMPLIANCE WITH ENVIRONMENTAL LAWS AND
REGULATIONS MAY HAVE UPON THE CAPITAL EXPENDITURES, EARNINGS, AND
COMPETITIVE POSITION OF THE ISSUER AND ITS SUBSIDIARIES.  OTHER
AMENDMENTS DESCRIBE THE EXTENT TO WHICH LITIGATION DISCLOSURES SHOULD
CONTAIN SPECIFIC DESCRIPTIONS OF ENVIRONMENTAL PROCEEDINGS.  SECURITIES
AND EXCHANGE COMM'N RELEASE (SECURITIES ACT REL. NO. 5386, APRIL 20,
1973).  SEE SCIENTISTS' INSTITUTE V. AEC, -- F.2D --, DECIDED JUNE 12,
1973, HOLDING THAT AN IMPACT STATEMENT MUST BE FILED FOR THE
COMMISSION'S LIQUID METAL FAST BREEDER REACTOR PROGRAM. 

/8/  SENATOR JACKSON RECENTLY WAS REPORTED AS SAYING ABOUT THESE
IMPACT STATEMENTS: 

"WE ALSO SHOULD BE ABLE TO GET GENERIC ENVIRONMENTAL I STATEMENTS --
UPDATED EVERY SIX MONTHS OR SO -- FOR ENERGY POLICY, TRANSPORTATION
POLICY, AND OTHER MAJOR POLICY DECISIONS."  SUPRA, N. 5. 

/9/  MOST OF THE NATION'S WASTE IS RELOCATED INTO DUMPS WITH ONLY
APPROXIMATELY 10% TO 15% FINDING ITS WAY INTO SANITARY LANDFILLS. 
KRAMER, SUPRA, N. 2, AT 17. 

/10/  CONGRESSMAN DINGELL, ANOTHER MAIN SPONSOR OF NEPA, RECENTLY
WAS REPORTED AS SAYING: 

"THE SUCCESS OF THE ENVIRONMENTAL IMPACT STATEMENTS IS NOT SO MUCH
THAT THEY WERE USED AS WE INTENDED THEY SHOULD, BUT THAT CITIZENS HAVE
BEEN ABLE TO USE THE PROCESS AS A (WAY) TO GET INTO COURTS.  . .  SOME
AGENCIES ARE COMPLYING POORLY.  THEY DECIDE WHAT THEY ARE GOING TO DO
AND THEN WRITE AN ENVIRONMENTAL IMPACT STATEMENT TO SUPPORT THE
DECISION.  THAT IS NOT WHAT CONGRESS HAD IN MIND.  I AM FEARFUL THAT WE
ARE BREEDING A RACE OF IMPACT STATEMENT WRITERS WHO PUT ALL THE RIGHT
WORDS DOWN BUT DON'T REALLY GET ENVIRONMENTAL CONCERNS INVOLVED IN THE
DECISION-MAKING PROCESS.  THE IMPACT STATEMENT ITSELF IS NOT
IMPORTANT.  THE IMPORTANT THING IS THAT PROPER JUDGMENTS ARE MADE
REFLECTING ENVIRONMENTAL CONSIDERATIONS IN THE DECISION-MAKING
PROCESS.  THE IMPACT STATEMENT SHOULD BE A DISCIPLINE FOR THIS AND ALSO
A PROCESS BY WHICH THE PUBLIC CAN BE INFORMED AND BROUGHT INTO THE
DECISION-MAKING PROCESS."  SUPRA, N. 5. 

FOR A RECENT ACCOUNT OF IMPACT STATEMENTS ON TRANSPORTATION PROBLEMS
SEE ROBERT CAHN (FORMER MEMBER OF CEQ), ENVIRONMENTALISTS WARY OF
TRANSPORT TREND, CHRISTIAN SCIENCE MONITOR 12 (FEB. 28, 1973). 
APPENDIX I TO OPINION OF DOUGLAS, J., E EDMONSTON PROJECT IS NOW
ENGAGED IN RECYCLING OF RAW WASTE AND 

/11/  SEE N. 10, SUPRA.

        APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING IN PART 

THE BUREAU OF MINES HAD AT EDMONSTON, MARYLAND, FOR SEVERAL YEARS AN
INCINERATOR RESIDUE PROCESSING PLANT ON THE BASIS OF WHICH LOWELL,
MASSACHUSETTS, INSTITUTED ITS RESOURCE RECOVERY PROJECT. 

THE EDMONSTON PROJECT IS NOW ENGAGED IN RECYCLING OF RAW WASTE AND
THE FOLLOWING IS THE BUREAU'S DESCRIPTION OF THE NATURE AND SCOPE OF
THAT PROJECT. 

        FACT SHEET

        EDMONSTON (MD.)  SOLID WASTE RECYCLING PROJECT BUREAU OF

           MINES

        DEPARTMENT OF THE INTERIOR 

AN IMPORTANT PART OF THE SOLID WASTE UTILIZATION RESEARCH CARRIED ON
BY THE BUREAU OF MINES IS TO DEVELOP METHODS AND PROCESSES FOR
RECYCLING MINERAL MATERIALS PRESENT IN URBAN REFUSE.  ENGINEERS FROM
THE BUREAU'S COLLEGE PARK (MD.)  METALLURGY RESEARCH CENTER OPERATE A
PILOT PLANT AT EDMONSTON, MARYLAND, WHERE THEY RECLAIM FERROUS METALS,
NONFERROUS METALS, GLASS, PLASTICS, AND PAPER FROM RAW UNBURNED
REFUSE.  THE FOLLOWING FACTS ARE PERTINENT TO THE RESEARCH UNDERWAY AT
THE EDMONSTON PILOT PLANT.  XXX -- 100 POUNDS OF TYPICAL MUNICIPAL
REFUSE CONTAINS:

  36.6 POUNDS OF PAPER AND CARDBOARD; 20.2 POUNDS OF GARBAGE; 8.4
POUNDS OF METAL; 8.5 POUNDS OF

  GLASS; 17.4 POUNDS OF LEAV , GRASS, HEDGE CLIPPINGS AND TREE
PRUNINGS; 2.6 POUNDS OF SCRAP

  WOOD; 1.1 POUND OF PLASTICS; AND 5.2 POUNDS OF MISCELLANEOUS
MATERIAL INCLUDING LEATHER,

  RUBBER, TEXTILES, BRICKS, STONES, AND DIRT.  XXX -- URBAN REFUSE
GENERATED IN THE U.S. IN 1972 TOTALED 300

  MILLION TONS, OR THE EQUIVALENT OF MORE THAN 8 POUNDS DAILY FOR
EVERY MAN, WOMAN, AND CHILD.  XXX -- ONLY 220 MILLION TONS OF MUNICIPAL
REFUSE WAS REGULARLY

  COLLECTED BY PUBLIC AGENCIES AND PRIVATE FIRMS.  THE REMAINDER
(80 MILLION TONS) WAS

  ABANDONED, DUMPED AT THE POINT OF ORIGIN, OR HAULED TO
UNCONTROLLED DISPOSAL SITES.  XXX -- THE VOLUME OF MUNICIPAL REFUSE
ACCUMULATING IN THE

  U. S. IN A SINGLE YEAR WOULD COVER AN AREA HALF THE SIZE OF THE
STATE OF CONNECTICUT (2,500

  SQ. MI.)  WITH A LAYER OF REFUSE 1 FOOT DEEP.  THIS REFUSE
CONTAINS SOME 12 MILLION TONS OF

  IRON AND STEEL, 13 MILLION TONS OF GLASS, AND OVER A MILLION TONS
OF ALUMINUM, ZINC, LEAD,

  TIN, AND COPPER.  XXX -- COLLECTING AND DISPOSING OF REFUSE COSTS
CITIES AN

  AVERAGE OF $23 PER TON ($18, FOR COLLECTION AND $5, FOR
DISPOSAL).  NEW YORK CITY, AT A COST

  OF $40 PER TON, SPENDS ALMOST A MILLION DOLARS EACH DAY TO
COLLECT AND DISPOSE OF SOLID

  WASTE.  TOTAL U.S. BILL RUNS ABOUT $6 BILLION ANNUALLY.  XXX --
MOST MUNICIPAL REFUSE IS DISPOSED OF BY DUMPING,

  LANDFILL, OR INCINERATION.  ABOUT 30 MILLION TONS OF MUNICPAL
REFUSE IS BURNED ANNUALLY IN

  MORE THAN 300 MUNICIPAL INCINERATORS.  THESE INCINERATORS
GENERATE 7.5 MILLION TONS OF

  RESIDUES, WHICH ARE THEN BURIED.  THE PROCESS DEVELOPED BY THE
BUREAU TO RECLAIM THE VALUES

  FROM INCINERATOR RESIDUES HAS ATTRACTED WORLDWIDE ATTENTION.  A
COMMERICAL SIZE PLANT OF THIS

  TYPE WILL SOON BE UNDER CONSTRUCTION IN LOWELL, MASSACHUSETTS,
WITH SEVENTY-FIVE PERCENT OF

THE $3.2 MILLION REQUIRED, BEING PROVIDED BY THE ENVIRONMENTAL
PROTECTION AGENCY.  XXX -- SUCCESSFUL RECLAMATION OF MINERAL VALUES
FROM INCINERATOR

  RESIDUES AT THE BUREAU'S PILOT PLANT PROMPTED RESEARCH TO SAVE
ALSO THAT PART OF MUNICIPAL

 REFUSE THAT IS NOW BEING LOST DURING BURNING.  THIS WOULD REDUCE
THE NEED FOR BUILDING MORE

  MUNICIPAL INCINERATORS, SAVING THEIR CONSTRUCTION AND OPERATING
COSTS, AND WOULD BRING INCOME

  FROM SALVAGED PAPER AND PLASTICS AS WELL AS METALS AND GLASS.  IT
WOULD ALSO ELIMINATE AIR

  POLLUTION PROBLEMS CONNECTED WITH INCINERATION.  XXX -- EQUIPMENT
FOR MECHANICAL SEPARATION OF METALS, GLASS,

  PAPER, AND PLASTICS FROM MUNICIPAL REFUSE BEFORE INCINERATION HAS
BEEN ASSEMBLED AT

  EDMONSTON.  THE PROCESS INVOLVES COARSE SHREDDING OF THE REFUSE,
FOLLOWED WITH AIR

  CLASSIFICATION, MAGNETIC SEPARATION, SCREENING, OPTICAL SORTING,
ELECTROSTATIC SEPARATION, AND

  GRAVITY CONCENTRATION -- ALL PROVEN METHODS USED IN THE MINERALS
INDUSTRIES.  XXX -- OTHER REFUSE RECYCLING SCHEMES HAVE BEEN PROPOSED

  AND SOME ARE ALREADY UNDER DEVELOPMENT.  THE PROCESS DEVELOPED BY
THE BUREAU IS UNIQUE IN THE

FOLLOWING MAJOR RESPECTS:  (1) IT IS THE ONLY PROCESS THAT EMBODIES A
COMPLETE SYSTEM, (2) IT

  IS THE ONLY PROCESS CAPABLE OF CAPTURING AND CONCENTRATING
PUTRESCIBLES AND GLASS, (3) IT IS

  THE ONLY PROCESS THAT PRODUCES A TIN CAN PRODUCT SUITABLE FOR
DETINNING, (4) IT IS THE ONLY

  PROCESS CAPABLE OF ACCEPTING EXTREMELY MASSIVE PIECES OF METAL,
(5) IT IS THE ONLY PROCESS

  THAT CAN SUCCESSFULLY SEPARATE PLASTICS AND PAPER, AND (6) ENERGY
REQUIREMENTS FOR THE

  BUREAU'S PROCESS ARE BY FAR THE LEAST OF ALL PROPOSED PROCESSES. 
XXX -- A PLANT PROCESSING 1,000 TONS OF RAW REFUSE PER DAY COULD

BE EXPECTED TO RECLAIM EACH DAY ENOUGH FERROUS METAL TO MAKE ALL THE
IRON AND STEEL PARTS FOR

  MORE THAN 55 4-DOOR SEDANS.  XXX -- ABOUT 36 BILLION BOTTLES ARE
DISCARDED EACH YEAR IN       THE U.S. AS SOLID WASTE.  EACH AMERICAN
DISCARDS A GLASS BOTTLE ON THE AVERAGE OF ABOUT ONE

  EVERY TWO DAYS.  THE AVERAGE RETURNABLE BEER BOTTLE USED TO MAKE
31 ROUND TRIPS FROM THE

  BREWERY, TO THE CONSUMER, AND BACK TO THE BREWERY.  THE AVERAGE
IS NOW 19 TRIPS.  IN SOME

  CITIES, IT IS ONLY 4.  PEOPLE ARE DISCRIMINATING LESS BETWEEN
RETURNABLE AND NON-RETURNABLE

  BOTTLES.  XXX -- GLASS RECLAIMED FROM RAW REFUSE CAN BE USED IN

  MAKING NEW GLASS, OR FOR SUCH SALABLE PRODUCTS AS BUILDING
BRICKS, MINERAL WOOL FOR       INSULATION, AND ROAD SURFACING (WHEN
GROUND AND MIXED WITH ASPHALT).  XXX -- ALUMINUM PRESENT IN REFUSE IN
THE FORM OF CANS ALONE

AMOUNTS TO 10 PERCENT OF THE TOTAL PRIMARY PRODUCTION.  THIS METAL
TOGETHER WITH OTHER

  ALUMINUM RECOVERED FROM REFUSE WOULD FIND A READY MARKET AT
EXISTING SECONDARY SMELTERS FOR

  CONVERSION TO HIGH GRADE CASTING ALLOYS.  XXX -- THE OTHER HEAVY
NONFERROUS METALS COULD BE USED

  READILY IN PRODUCING BRASS INGOT OR THE MIXTURE COULD BE FURTHER
REFINED AND SEPARATED INTO

  THE CONSTITUENT METALS.  XXX -- THE RATE AT WHICH WE GENERATE
REFUSE IS GROWING SO

  FAST THAT WITHIN 20 YEARS, EVEN IF WE ARE ABLE TO RECYCLE 70
PERCENT OF OUR SOLID WASTES OUR

  NEEDS FOR LANDFILL SPACE WILL REMAIN THE SAME.  AND LANDFILL
SPACE IS, EVEN NOW, BECOMING

  HARDER AND HARDER TO FIND. 

(REFUSE-DISPOSAL AND REFUSE-RECOVERY CHARTS APPEAR ON PP. 718 AND
719 RESPECTIVELY.)  (CHARTS OMITTED). 

        APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING IN PART 

4332 PROVIDES: 

^ 4332.  COOPERATION OF AGENCIES; REPORTS; AVAILABILITY OF
INFORMATION; RECOMMENDATIONS; INTERNATIONAL AND NATIONAL COORDINATION
OF EFFORTS. 

THE CONGRESS AUTHORIZES AND DIRECTS THAT, TO THE FULLEST EXTENT
POSSIBLE:  (1) THE POLICIES, REGULATIONS, AND PUBLIC LAWS OF THE UNITED
STATES SHALL BE INTERPRETED AND ADMINISTERED IN ACCORDANCE WITH THE
POLICIES SET FORTH IN THIS CHAPTER, AND (2) ALL AGENCIES OF THE FEDERAL
GOVERNMENT SHALL -- 

     (A) UTILIZE A SYSTEMATIC, INTERDISCIPLINARY APPROACH WHICH
WILL

  INSURE THE INTEGRATED USE OF THE NATURAL AND SOCIAL SCIENCES AND

  THE ENVIRONMENTAL DESIGN ARTS IN PLANNING AND IN DECISION MAKING

  WHICH MAY HAVE AN IMPACT ON MAN'S ENVIRONMENT: 

     (B) IDENTIFY AND DEVELOP METHODS AND PROCEDURES, IN

  CONSULTATION WITH THE COUNCIL ON ENVIRONMENTAL QUALITY

 ESTABLISHED BY SUBCHAPTER II OF THIS CHAPTER, WHICH WILL INSURE

  THAT PRESENTLY UNQUANTIFIED ENVIRONMENTAL AMENITIES AND VALUES

  MAY BE GIVEN APPROPRIATE CONSIDERATION IN DECISION MAKING ALONG

  WITH ECONOMIC AND TECHNICAL CONSIDERATIONS: 

     (C) INCLUDE IN EVERY RECOMMENDATION OR REPORT ON PROPOSALS FOR

  LEGISLATION AND OTHER MAJOR FEDERAL ACTIONS SIGNIFICANTLY

  AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT, A DETAILED

  STATEMENT BY THE RESPONSIBLE OFFICIAL ON -- 

     (I) THE ENVIRONMENTAL IMPACT OF THE PROPOSED ACTION, 

     (II) ANY ADVERSE ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED

  SHOULD THE PROPOSAL BE IMPLEMENTED, 

     (III) ALTERNATIVES TO THE PROPOSED ACTION, 

   (IV) THE RELATIONSHIP BETWEEN LOCAL SHORT-TERM USES OF MAN'S

  ENVIRONMENT AND THE MAINTENANCE AND ENHANCEMENT OF LONG-TERM

  PRODUCTIVITY, AND 

     (V) ANY IRREVERSIBLE AND IRRETRIEVABLE COMMITMENTS OF
RESOURCES

  WHICH WOULD BE INVOLVED IN THE PROPOSED ACTION SHOULD IT BE

  IMPLEMENTED.  PRIOR TO MAKING ANY DETAILED STATEMENT, THE

  RESPONSIBLE FEDERAL OFFICIAL SHALL CONSULT WITH AND OBTAIN THE

COMMENTS OF ANY FEDERAL AGENCY WHICH HAS JURISDICTION BY LAU OR

  SPECIAL EXPERTISE WITH RESPECT TO ANY ENVIRONMENTAL IMPACT

  INVOLVED.  COPIES OF SUCH STATEMENT AND THE COMMENTS AND VIEWS OF

  THE APPROPRIATE FEDERAL, STATE, AND LOCAL AGENCIES, WHICH ARE

  AUTHORIZED TO DEVELOP AND ENFORCE ENVIRONMENTAL STANDARDS, SHALL

  BE MADE AVAILABLE TO THE PRESIDENT, THE COUNCIL ON ENVIRONMENTAL

  QUALITY AND TO THE PUBLIC AS PROVIDED BY SECTION 552 OF TITLE 5,

  AND SHALL ACCOMPANY THE PROPOSAL THROUGH THE EXISTING AGENCY

  REVIEW PROCESSES; 

     (D) STUDY, DEVELOP, AND DESCRIBE APPROPRIATE ALTERNATIVES TO

  RECOMMENDED COURSES OF ACTION IN ANY PROPOSAL WHICH INVOLVES

  UNRESOLVED CONFLICTS CONCERNING ALTERNATIVE USES OF AVAILABLE

  RESOURCES; 

(E) RECOGNIZE THE WORLD WIDE AND LONG-RANGE CHARACTER OF

 ENVIRONMENTAL PROBLEMS AND, WHERE CONSISTENT WITH THE FOREIGN

  POLICY OF THE UNITED STATES, LEND APPROPRIATE SUPPORT TO

  INITIATIVES, RESOLUTIONS, AND PROGRAMS DESIGNED TO MAXIMIZE

  INTERNATIONAL COOPERATION IN ANTICIPATING AND PREVENTING A

  DECLINE IN THE QUALITY OF MANKIND'S WORLD ENVIRONMENT; 

     (F) MAKE AVAILABLE TO STATES, COUNTIES, MUNICIPALITIES,

  INSTITUTIONS, AND INDIVIDUALS, ADVICE AND INFORMATION USEFUL IN

  RESTORING, MAINTAINING, AND ENHANCING THE QUALITY OF THE

  ENVIRONMENT; 

     (G) INITIATE AND UTILIZE ECOLOGICAL INFORMATION IN THE
PLANNING

  AND DEVELOPMENT OF RESOURCE-ORIENTED PROJECTS; AND 

     (H) ASSIST THE COUNCIL ON ENVIRONMENTAL QUALITY ESTABLISHED BY

  SUBCHAPTER II OF THIS CHAPTER. 

PUB. L. 91 - 190, TITLE I, ^ 102, JAN. 1, 1970, 83 STAT. 853. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, DESSENTING IN PART . 

I WOULD REVERSE THE JUDGMENT OF THE DISTRICT COURT AND ORDER THE
COMPLAINT DISMISSED BECAUSE APPELLEES LACK STANDING TO BRING THIS
SUIT.  NONE OF OUR CASES, INCLUDING INFERENCES THAT MAY BE DRAWN FROM
DICTA IN SIERRA CLUB V. MORTON, 405 U.S. 727 (1972), WHERE WE DENIED
STANDING TO PETITONER THERE, ARE SUFFICIENT TO CONFER STANDING ON
PLAINTIFFS IN CIRCUMSTANCES LIKE THESE.  THE ALLEGATIONS HERE DO NOT
SATISFY THE THRESHOLD REQUIREMENT OF INJURY IN FACT FOR CONSTITUTING A
JUSTICIABLE CASE OR CONTROVERSY.  THE INJURY ALLEGED IS THAT THE
FAILURE OF THE COMMISSION TO SUSPEND A 2.5% FREIGHT RATE INCREASE MAY
DISCOURAGE THE TRANSPORTATION OF RECYCLABLE MATERIALS, THUS RETARDING
THE USE OF RECYCLED MATERIALS, CAUSING FURTHER CONSUMPTION OF OUR
FORESTS AND NATURAL RESOURCES (SOME OF WHICH MIGHT TO TAKEN FROM THE
WASHINGTON METROPOLITAN AREA), AND RESULTING IN MORE REFUSE AND
UNDISPOSABLE MATERIALS TO FURTHER POLLUTE THE ENVIRONMENT. 

THE MAJORITY ACKNOWLEDGES THAT THESE ALLEGATIONS REFLECT AN
"ATTENUATED LINE OF CAUSATION," ANTE, AT 688, BUT IS WILLING TO SUSPEND
ITS JUDGMENT IN THE DIM HOPE THAT PROOF AT TRIAL WILL IN SOME
UNEXPLAINED WAY FLESH THEM OUT AND ESTABLISH THE NECESSARY NEXUS
BETWEEN THESE APPELLEES AND THE ACROSS-THE-BOARD RATE INCREASE THEY
COMPLAIN OF.  TO ME, THE ALLEGED INJURIES ARE SO REMOTE, SPECULATIVE,
AND INSUBSTANTIAL IN FACT THAT THEY FAIL TO CONFER STANDING.  THEY
BECOME NO MORE CONCRETE, REAL, OR SUBSTANTIAL WHEN IT IS ADDED THAT
MATERIALS WILL COST MORE AT THE MARKETPLACE AND THAT SOMEHOW THE
FREIGHT RATE INCREASE WILL INCREASE AIR POLLUTION.  ALLEGATIONS SUCH AS
THESE ARE NO MORE SUBSTANTIAL AND DIRECT AND NO MORE QUALIFY THESE
APPELLEES TO LITIGATE THAN ALLEGATIONS OF A TAXPAYER THAT GOVERNMENTAL
EXPENDITURES WILL INCREASE HIS TAXES AND HAVE AN IMPACT ON HIS
POCKETBOOK, MASSACHUSETTS V. MELLON, 262 U.S. 447, 486 - 489 (1923), OR
ALLEGATIONS THAT GOVERNMENTAL DECISIONS ARE OFFENSIVE TO REASON OR
MORALS.  THE GENERAL "RIGHT, POSSESSED BY EVERY CITIZEN, TO REQUIRE
THAT THE GOVERNMENT BE ADMINISTERED ACCORDING TO LAW AND THAT THE
PUBLIC MONEYS BE NOT WASTED" DOES NOT CONFER STANDING TO LITIGATE IN
FEDERAL COURTS.  FAIRCHILD V. HUGHES, 258 U.S. 126, 129 (1922).  NEW
YORK DID NOT HAVE STANDING TO COMPLAIN WHEN IT ASSERTED MERELY THE
POSSIBLE ADVERSE EFFECTS OF DIVERSION OF WATER FROM LAKE MICHIGAN UPON
HYPOTHETICAL POWER DEVELOPMENTS IN "THE INDEFINITE FUTURE."  NEW YORK
V. ILLINOIS, 274 U.S. 488, 490 (1927).  ASSUMED POTENTIAL INVASIONS ARE
INSUFFICIENT BASES FOR A JUSTICIABLE CASE OR CONTROVERSY.  ARIZONA V.
CALIFORNIA, 283 U.S. 423, 462 (1931).  AS I SEE THE ALLEGATIONS IN THIS
CASE, THEY ARE IN REALITY LITTLE DIFFERENT FROM THE GENERAL-INTEREST
ALLEGATIONS FOUND INSUFFICIENT HERE, WE ARE WELL ON OUR WAY TO
PERMITTING CITIZENS AT LARGE TO LITIGATE ANY DECISIONS OF THE
GOVERNMENT WHICH FALL IN AN AREA OF INTEREST TO THEM AND WITH WHICH
THEY DISAGREE. 

ASSUMING, HOWEVER, THAT A MAJORITY OF THE COURT ADHERES TO THE
CONCLUSION THAT A CONSTITUTIONAL CASE OR CONTROVERSY EXISTS IN THESE
CIRCUMSTANCES AND THAT PLAINTIFFS MAY SUE, I WOULD AGREE THAT THE
DISTRICT COURT ERRED IN ENTERING AN INJUNCTION WHICH CONGRESS QUITE
CLEARLY HAD LONG SINCE DIVESTED IT OF THE POWER TO ENTER.  ACCORDINGLY,
I JOIN PART III OF THE COURT'S OPINION.  I ADD ONLY THAT FAILURE TO
MAINTAIN THIS COUNTRY'S RAILROADS EVEN IN THEIR PRESENT ANEMIC
CONDITION WILL GUARANTEE THAT RECYCLABLE MATERIALS WILL STAY WHERE THEY
ARE -- FAR BEYOND THE REACH OF RECYCLING PLANTS THAT AS A CONSEQUENCE
MAY NOT BE BUILT AT ALL. 

MR. JUSTICE MARSHALL, CONCURRING IN PART AND DISSENTING IN PART. 

I FULLY AGREE WITH AND JOIN IN PART II OF THE COURT'S OPINION
WHEREIN IT SUSTAINS THE DISTRICT COURT'S DETERMINATION THAT THE
APPELLEES HAVE STANDING TO CHALLENGE THE 2.5% INTERIM SURCHARGE ON THE
GROUND THAT THE INTERSTATE COMMERCE COMMISSION'S ORDER OF APRIL 24
PERMITTING THE SURCHARGE TO TAKE EFFECT WAS NOT ISSUED IN COMPLIANCE
WITH THE REQUIREMENTS OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
(NEPA), 42 U.S.C. ^^ 4321 - 4347.  THE COURT GOES ON, HOWEVER, TO HOLD
IN PART III OF ITS OPINION THAT THE DISTRICT COURT LACKED POWER TO
ISSUE A PRELIMINARY INJUNCTION BARRING IMPLEMENTATION OF THE SURCHARGE
DUE TO THE COMMISSION'S ALLEGED FAILURE TO COMPLY WITH NEPA IN THE
SUSPENSION STAGE OF THE RATE PROCEEDING.  THE COURT'S DECISION IN THIS
RESPECT IS, TO BE SURE, A VERY NARROW ONE: THE DECISION CLEARLY
CONCERNS ONLY THE SCOPE OF REMEDIES AVAILABLE TO THE DISTRICT COURT IN
THE CONTEXT OF A CASE OF THIS PARTICULAR CHARACTER, /1/  THAT IS, AN
ICC RATE SUSPENSION CASE.  THE COURT SPECIFICALLY REFRAINS FROM
DECIDING WHETHER OR NOT THE COMMISSION'S ALLEGED FAILURE TO COMPLY WITH
NEPA IN THE SUSPENSION STAGE IS A PROPER SUBJECT FOR JUDICIAL REVIEW
AND, IF SO, WHAT WOULD CONSTITUTE ADEQUATE COMPLIANCE WITH NEPA AT THAT
JUNCTURE IN THE ADMINISTRATIVE PROCESS.  SEE ANTE, AT 698 - 699, N.
22.  NONETHELESS, I AM UNABLE TO JOIN THE THIRD PORTION OF THE COURT'S
OPINION, FOR I AM CONVINCED THAT THERE IS NO LACK OF JUDICIAL POUER TO
ISSUE A PRELIMINARY INJUNCTION AGAINST THE INTERIM SURCHARGE IN THE
CONTEXT OF THESE CASES.  I THEREFORE MUST RESPECTFULLY DISSENT FROM
PART III OF THE COURT'S OPINION. 

AT THE OUTSET, IT IS ESSENTIAL FOR PURPOSES OF ANALYSIS TO PUT THE
ISSUE UPON WHICH THE COURT DISPOSES OF THE CASES IN PROPER
PERSPECTIVE.  SINCE THE COURT ADDRESSES ONLY THE ISSUE OF THE DISTRICT
COURT'S POWER TO GRANT PRELIMINARY RELIEF, WE MUST, OF COURSE, ASSUME
FOR THE SAKE OF ARGUMENT THAT THE ISSUES WHICH THE COURT DOES NOT NOW
REACH -- NAMELY, WHETHER THE PROCEDURAL REQUIREMENTS OF NEPA /2/  ARE
APPLICABLE AT THE SUSPENSION STAGE AND WHETHER THE ISSUE OF COMMISSION
COMPLIANCE IS A PROPER ONE FOR JUDICIAL REVIEW /3/  -- ARE TO BE
DECIDED IN APPELLEES'  FAVOR.  IN ADDITION, WE MUST ACCEPT FOR THE
PRESENT APPELLEES'  ASSERTIONS THAT THE INTERIM SURCHARGE, BY RAISING
THE COST OF SHIPPING RECYCLABLE MATERIALS, WILL FURTHER ACCENTUATE THE
ALLEGEDLY UNJUSTIFIABLE DISPARITY BETWEEN THE COST OF SHIPPING THOSE
MATERIALS AND THE COST OF SHIPPING PRIMARY GOODS, THEREBY IRRATIONALLY
ENCOURAGING THE USE OF PRIMARY GOODS WHICH WILL LEAD TO A FURTHER
DEGRADATION OF OUR ENVIRONMENT.  IN OTHER WORDS, IN CONSIDERING THE
QUESTION OF JUDICIAL POWER, WE MUST ACCEPT THE CORRECTNESS OF THE
DISTRICT COURT'S DETERMINATION THAT THERE WAS A "STRONG LIKELIHOOD"
THAT THE COMMISSION HAD ERRED IN ITS CONCLUSION THAT THE INTERIM
SURCHARGE "'WILL HAVE NO SIGNIFICANT ADVERSE EFFECT ON . . . THE
QUALITY OF THE HUMAN ENVIRONMENT WITHIN THE MEANING OF THE
ENVIRONMENTAL POLICY ACT OF 1969,'" 346 F. SUPP., AT 200, 201, A
CONCLUSION THAT HAD EFFECTIVELY EXCUSED THE COMMISSION FROM COMPLIANCE
WITH THE PROCEDURAL REQUIREMENTS OF NEPA IN THE CONTEXT OF THE
SURCHARGE, SEE 42 U.S.C. ^ 4332(2) (C). 

TURNING THEN TO THE ISSUE OF JUDICAL POWER, IT MUST FIRST BE
RECALLED THAT WE DEAL HERE WITH THE GRANT OF ONLY A PRELIMINARY
INJUNCTION; THE DISTRICT COURT DID NOT PERMANENTLY ENJOIN ENFORCEMENT
OF THE INTERIM SURCHARGE UPON DETERMINING THAT THE COMMISSION HAD, IN
ALL LIKELIHOOD, FAILED TO COMPLY WITH NEPA IN THE SUSPENSION STAGE. 
PROPERLY VIEWED, I THINK THE INJUNCTION AT ISSUE IN THIS CASE AMOUNTS
TO NOTHING MORE THAN A LEGITIMATE EFFORT BY THE DISTRICT COURT,
FOLLOWING THE COMMISSION'S REFUSAL TO SUSPEND THE SURCHARGE TO MAINTAIN
THE STATUS QUO PENDING FINAL JUDICIAL DETERMINATION OF THE LEGALITY OF
THE COMMISSION'S ACTION AT THE SUSPENSION STAGE IN LIGHT OF THE
REQUIREMENTS OF NEPA.  AN, BY NOW, THE EQUITABLE POWER OF THE FEDERAL
COURTS TO GRANT INTERIM INJUNCTIVE RELIEF PENDING DETERMINATION OF AN
APPEAL IS WELL ESTABLISHED.  THE NATURE OF THAT POWER WAS EXPLORED AT
LENGTH BY THE COURT IN SCRIPPS-HOWARD RADIO, INC. V. FCC, 316 U.S. 4
(1942), WHERE IT WAS HELD THAT A COURT OF APPEALS HAD POWER, PENDING
DETERMINATION OF AN APPEAL, TO STAY THE FEDERAL COMMUNICATIONS
COMMISSION'S GRANT OF A CONSTRUCTION PERMIT ALTHOUGH THE FEDERAL
COMMUNICATIONS ACT MADE NO PROVISION FOR SUCH A STAY.  SPEAKING FOR THE
COURT, MR. JUSTICE FRANKFURTER EXPLAINED: 

     "NO COURT CAN MAKE TIME STAND STILL.  THE CIRCUMSTANCES

  SURROUNDING A CONTROVERSY MAY CHANGE IRREVOCABLY DURING THE

  PENDENCY OF AN APPEAL, DESPITE ANYTHING A COURT CAN DO.  BUT

  WITHIN THESE LIMITS IT IS REASONABLE THAT AN APPELLATE COURT

  SHOULD BE ABLE TO PREVENT IRREPARABLE INJURY TO THE PARTIES OR TO

  THE PUBLIC RESULTING FROM THE PREMATURE ENFORCEMENT OF A

  DETERMINATION WHICH MAY LATER BE FOUND TO HAVE BEEN WRONG.  IT

  HAS ALWAYS BEEN HELD, THEREFORE, THAT AS A PART OF ITS

  TRADITIONAL EQUIPMENT FOR THE ADMINISTRATION OF JUSTICE, A

  FEDERAL COURT CAN STAY THE ENFORCEMENT OF A JUDGMENT PENDING THE

  OUTCOME OF AN APPEAL."  ID., AT 9 - 10. 

SEE ALSO FTC V. DEAN FOODS CO., 384 U.S. 597, 604 (1966); WHITNEY
NATIONAL BANK IN JEFFERSON PARISH V. BANK OF NEW ORLEANS & TRUST CO.,
379 U.S. 411, 425 (1965).     THIS COURT HAS CONSISTENTLY ADHERED TO
THE VIEW THAT IT WILL FIND FEDERAL COURTS TO HAVE BEEN DEPRIVED OF
THEIR TRADITIONAL POWER TO STAY ORDERS UNDER REVIEW ONLY IN THE FACE OF
THE CLEAREST POSSIBLE EVIDENCE OF A CONGRESSIONAL INTENT TO DO SO.  SEE
SCRIPPS-HOWARD RADIO, INC. V. FCC, SUPRA, AT 11, 15.  NO SUCH CLEAR
INTENT IS TO BE FOUND IN THE INTERSTATE COMMERCE ACT, AT LEAST NOT WITH
RESPECT TO A CASE SUCH AS THIS WHERE THE COMMISSION HAS ALREADY ACTED
ON THE RELEVANT ISSUE AND THE ISSUE LIES IN AN AREA OUTSIDE THE
COMMISSION'S TRADITIONAL EXPERTISE.  /4/  IN ARROW TRANSPORTATION CO.
V. SOUTHERN R. CO., 372 U.S. 658, 664 (1963), THIS COURT SPECIFICALLY
ACKNOWLEDGED THAT "(IT CANNOT BE SAID THAT THE LEGISLATIVE HISTORY OF
THE GRANT OF THE SUSPENSION POWER TO THE COMMISSION INCLUDES
UNAMBIGUOUS EVIDENCE OF A DESIGN TO EXTINGUISH WHATEVER JUDICIAL POWER
MAY HAVE EXISTED PRIOR TO (THE ESTABLISHMENT OF SUSPENSION POWERS IN
THE COMMISSION) TO SUSPEND PROPOSED RATES."  THE ARROW COURT WAS ASKED
TO EXTEND BY INJUNCTION THE STATUTORY SEVEN-MONTH SUSPENSION PERIOD,
SEE 49 U.S.C. ^ 15(7), BECAUSE THE COMMISSION HAD NOT REACHED A
DECISION ON THE LAWFULNESS OF THE PROPOSED RATES AT THE END OF THE
SUSPENSION PERIOD AND THE RAIL CARRIERS, FOLLOWING A PERIOD OF
VOLUNTARY SUSPENSION, WERE THREATENING TO IMPLEMENT THE RATE CHANGE
WITHOUT AWAITING FINAL AGENCY ACTION.  DESPITE THE AMBIGUITY OF THE
LEGISLATIVE HISTORY, THE COURT, UPON CAREFUL EXAMINATION OF THE
CHARACTER OF AND REASONS FOR THE SUSPENSION SCHEME, CONCLUDED THAT
CONGRESS MUST HAVE INTENDED TO DEPRIVE THE FEDERAL COURTS OF THE POWER
TO SUSPEND RATES PENDING COMPLETION OF AGENCY ACTION AND THUS THAT THE
TRADITIONAL EQUITABLE POWERS OF THE FEDERAL COURTS HAD BEEN OVERRIDDEN
TO THAT EXTENT.  BUT, AS DETAILED CONSIDERATION OF THE FACTORS THAT
MOTIVATED THE DECISION IN ARROW REVEALS, THIS LITIGATION PRESENTS A
SIGNIFICANTLY DIFFERENT PROBLEM. 

THE ARROW COURT FELT THAT AN INJUNCTION EXTENDING THE SUSPENSION
PERIOD PENDING FINAL AGENCY ACTION WOULD INVOLVE A SERIOUS, UNINTENDED
INTRUSION ON THE PRIMARY JURISDICTION OF THE COMMISSION.  THIS PROBLEM
OF PRIMARY JURISDICTION HAD TWO ASPECTS IN ARROW.  FIRST, WHERE THE
ISSUE IS THE REASONABLENESS OF PROPOSED RATES, AN APPLICATION FOR AN
INJUNCTION AGAINST IMPLEMENTATION OF THOSE RATES PENDING FINAL AGENCY
ACTION WOULD NECESSARILY REQUIRE A FEDERAL COURT "TO PASS BEFORE FINAL
COMMISSION ACTION UPON THE QUESTION OF REASONABLENESS OF A RATE," 372
U.S., AT 671, THEREBY PROVIDING, IN EFFECT, AN ADVISORY JUDICIAL
OPINION TO THE COMMISSION ON AN ISSUE WHICH CONGRESS INTENDED THAT THE
COMMISSION DECIDE IN THE FIRST INSTANCE.  CERTAINLY, THE COMMISSION'S
EXPERTISE IN MATTERS OF RAIL CARRIER OPERATIONS AND ECONOMICS IS WELL
RECOGNIZED, AND ARROW CLEARLY INDICATES THAT THE COURTS SHOULD NOT
INTERFERE WITH THE EXERCISE OF THAT EXPERTISE.  HOWEVER, THE GRANT OF
PRELIMINARY RELIEF HERE INVOLVES NO SUCH INTERFERENCE WITH THE
COMMISSION'S INITIAL EXERCISE OF ITS PARTICULAR EXPERTISE. 

SO FAR AS I AM AWARE, THE COMMISSION HAS NEVER BEEN DEEMED
ESPECIALLY EXPERT IN MATTERS OF ENVIRONMENTAL POLICY OR IMPACT.  /5/ IT
IS, OF COURSE, TRUE THAT THE COMMISSION MUST DECIDE IN THE FIRST
INSTANCE WHETHER PARTICULAR PROPOSED ACTION CONSTITUTES "MAJOR FEDERAL
ACTION SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT,"
THUS NECESSITATING AGENCY COMPLIANCE WITH THE DETAILED REQUIREMENTS OF
^ 102(2) (C) OF NEPA, 42 U.S.C. ^ 4332(2) (C).  BUT THAT DECISION HAD
ALREADY BEEN MADE IN THIS CASE PRIOR TO THE TIME WHEN JUDICIAL
INTERVENTION BY THE DISTRICT COURT WAS SOUGHT -- IN CONTRAST TO THE
SITUATION IN ARROW WHERE THE QUESTION OF THE REASONABLENESS OF THE
RATES REMAINED UNRESOLVED BY THE COMMISSION.  EVEN ASSUMING THAT SOME
ELEMENT OF AGENCY EXPERTISE IS INVOLVED IN THE DECISION AT ISSUE HERE,
THE DISTRICT COURT, IN GRANTING PRELIMINARY RELIEF AGAINST THE INTERIM
SURCHARGE, PASSED ONLY UPON A QUESTION OF WHICH THE COMMISSION HAD
FINALLY DISPOSED, NAMELY, THE ENVIRONMENTAL IMPACT OF NOT SUSPENDING
THE INTERIM SURCHARGE AND OF PERMITTING IT TO TAKE EFFECT AT ONCE. 
THUS, FOR PURPOSES OF THE PARTICULAR ISSUE RAISED HERE, THE DISTRICT
COURT WAS PRESENTED WITH FINAL AGENCY ACTION /6/  AND WAS NOT IN DANGER
OF INTERFERING WITH THE COMMISSION'S EXPERTISE WHEN IT STAYED THE
COMMISSION'S ORDER PENDING FINAL DETERMINATION OF THE APPEALS.  /7/ 

THE OTHER ASPECT OF THE PROBLEM OF PRIMARY JURISDICTION FOCUSED UPON
IN ARROW WAS THE TIMING OF THE IMPLEMENTATION OF NEW RATES.  THE COURT
CONCLUDED THAT CONGRESS HAD INTENDED THAT THE COMMISSION SHOULD
DETERMINE WHEN NEW RATES SHOULD TAKE EFFECT.  SEE 372 U.S., AT 668. 
INSOFAR AS THE ECONOMIC IMPACT OF RATE INCREASES WAS CONCERNEO,
CONGRESS ENACTED A SCHEME WHICH PERMITTED THE COMMISSION TO TAKE INTO
ACCOUNT THE INTERESTS OF BOTH RAIL CARRIERS AND SHIPPERS.  THUS,
CONGRESS RECOGNIZED THAT ECONOMIC NECESSITY MIGHT PERSUADE THE
COMMISSION TO PERMIT OTHERWISE QUESTIONABLE RATES TO GO UNSUSPENDED
WHILE THEY WERE BEING INVESTIGATED, AND, AT MOST, IT ALLOWED THE
COMMISSION TO SUSPEND PROPOSED RATES FOR ONLY SEVEN MONTHS, SEE 49
U.S.C. ^ 15(7).  AT THE SAME TIME, CONGRESS ATTEMPTED TO ACCOMMODATE
THE ECONOMIC INTERESTS OF SHIPPERS, FOR IT GAVE THE COMMISSION POWER,
PENDING FINAL AGENCY ACTION, TO REQUIRE THE RAIL CARRIERS TO MAINTAIN
DETAILED RECORDS OF MONIES RECEIVED DUE TO THE INCREASE AND TO COMPEL
PAYMENT OF REFUNDS IF A RATE INCREASE WAS ULTIMATELY FOUND TO BE
UNREASONABLE.  /8/  SEE IBID. 

BUT WHERE DOES THE INTERSTATE COMMERCE ACT MAKE PROVISION FOR AN
ACCOUNTING AND "REFUND" TO THE PEOPLE OF OUR NATION FOR THE
IRREVERSIBLE ECOLOGICAL DAMAGE THAT RESULTS FROM A RATE INCREASE WHICH
DISCRIMINATES UNREASONABLY AGAINST RECYCLABLE MATERIALS AND HAS BEEN
ALLOWED TO TAKE EFFECT WITHOUT COMPLIANCE WITH THE PROCEDURAL
REQUIREMENTS OF NEPA?  /9/  THE COURT TODAY SAYS THAT "(TO ALLOW
JUDICIAL SUSPENSION FOR NONCOMPLIANCE WITH NEPA, WOULD DISTRUB THE
CAREFUL BALANCE OF INTERESTS" STRUCK BY CONGRESS IN THE SUSPENSION AND
REFUND PROVISIONS.  ANTE, AT 697.  YET THE SIMPLE FACT IS THAT IN THE
CAREFULLY DESIGNED SUSPENSION AND REFUND SCHEME NO BALANCE WAS STRUCK
WITH RESPECT TO THE ENVIRONMENTAL INTERESTS THAT HAVE BEEN RECOGNIZED
BY CONGRESS IN NEPA SINCE THE INTRODUCTION OF THE SUSPENSION PROVISIONS
INTO THE INTERSTATE COMMERCE ACT.  UNDER THESE CIRCUMSTANCES, WE CAN
HARDLY INFER AN INTENT ON THE PART OF CONGRESS TO DEPRIVE THE FEDERAL
COURTS OF THEIR TRADITIONAL RESPONSIBILITY, IN PASSING UPON A REQUEST
FOR EQUITABLE RELIEF, TO WORK AN ACCOMMODATION IN EACH PARTICULAR CASE
OF THE COMPETING INTERESTS OF THE RELEVANT PARTIES /10/ -- THAT IS, OF
A RAIL CARRIER'S ALLEGED NEED FOR INCREASED INCOME THAT WILL OTHERWISE
BE FOREVER LOST EACH DAY THAT THE NEW RATE IS NOT CHARGED AND OF THE
EXTENT OF IRREVERSIBLE ENVIRONMENTAL DAMAGE THAT MIGHT RESULT IF THE
RATES ARE NOT SUSPENDED.  THE DISTRICT COURT, IN ITS EFFORT TO PRESERVE
THE STATUS QUO PENDING FINAL REVIEW OF THE COMMISSION'S APRIL 24 ORDER,
GAVE FULL CONSIDERATION TO THE EFFECTS ON ALL PARTIES OF EITHER
GRANTING OR DENYING PRELIMINARY RELIEF AGAINST THE INTERIM SURCHARGE. 
/11/  IN THEN TEMPORARILY ENJOINING THE SURCHARGE, I BELIEVE THAT THE
DISTRICT COURT ACTED WITHIN THE SCOPE OF ITS LEGITIMATE POWERS. 

TO SUMMARIZE, THE, I OBVIOUSLY CANNOT AGREE WITH THE COURT'S
ASSERTION THAT "EACH OF THE POLICIES THAT WE IDENTIFIED IN ARROW AS THE
BASIS FOR ^ 15(7) WOULD BE SUBSTANTIALLY UNDERMINED IF THE COURTS WERE
FOUND TO HAVE SUSPENSION POWERS SIMPLY BECAUSE NONCOMPLIANCE WITH NEPA
WAS ALLEGED."  ANTE, AT 696.  IN ARROW ITSELF, THE COURT WAS AT PAINS
TO POINT OUT THAT ITS DECISION DID NOT "REFLECT IN ANY WAY UPON
DECISIONS WHICH HAVE RECOGNIZED A LIMITED JUDCIIAL POWER TO PRESERVE
THE COURT'S JURISDICTION OR MAINTAIN THE STATUS QUO BY INJUNCTION
PENDING REVIEW OF AN AGENCY'S ACTION THROUGH THE PRESCRIBED STATUTORY
CHANNELS."  372 U.S., AT 671 N. 22.  TRUE, THE COURT WENT ON TO SAY
THERE THAT "(SUCH POWER . . . HAS NEVER BEEN RECOGNIZED IN DEROGATION
OF SUCH A CLEAR CONGRESSIONAL PURPOSE TO OUST JUDICIAL POWER AS THAT
MANIFESTED IN THE INTERSTATE COMMERCE ACT."  IBID.  BUT THE IMPORT OF
THAT REMARK MUST BE JUDGED WITH A FULL UNDERSTANDING OF THE FACTORS
UNDERLYING THE ARROW COURT'S FINDING OF "SUCH A CLEAR CONGRESSIONAL
PURPOSE."  AS HAS BEEN SEEN, CLOSE ANALYSIS OF THOSE FACTORS IDENTIFIED
CERTAINLY DOES NOT COMPEL EXTENSION OF THE ARROW HOLDING TO THE REQUEST
FOR PRELIMINARY INJUNCTIVE RELIEF IN THIS LITIGATION.  /12/  THE COURT
WOULD DO WELL TO REMEMBER THAT "(WHERE CONGRESS WISHED TO DEPRIVE THE
COURTS OF (THEIR) HISTORIC POWER (TO ENJOIN ORDERS PENDING REVIEW), IT
KNEW HOW TO SUE APT WORDS . . ."  SCRIPPS-HOWARD RADIO, INC. V. FCC,
316 U.S., AT 17.  CF. HECHT CO. V. BOWLES, 321 U.S. 321, 329 (1944). 
NOTHING IN THE LANGUAGE OF THE INTERSTATE COMMERCE ACT OR IN THE
PARTICULAR STRUCTURE OF THAT ACT OR EVEN IN OUR DECISION IN ARROW
COMPELS THE CONCLUSION THAT CONGRESS HAS DONE SO HERE.  I MUST
THEREFORE DISSENT FROM THE COUNT'S ULTIMATE DISPOSITION OF THESE
CASES. 

/1/  GIVEN THAT THE COURT HOLDS ONLY THAT THE DISTRICT COURT LACKED
POWER TO GRANT PRELIMINARY INJUNCTIVE RELIEF, IT PRESUMABLY REMAINS
OPEN TO APPELLEES TO CHALLENGE THE COMMISSION'S ALLEGED FAILURE TO
COMPLY WITH NEPA IN THE SUSPENSION STAGE OF THE PROCEEDINGS CONCERNING
THE INTERIM SURCHARGE IN AN ACTION FOR DECLARATORY RELIEF.  NOR DOES
ANYTHING IN THE COURT'S OPINION TODAY DENY TO THE DISTRICT COURTS POWER
TO ENJOIN THE COMMISSION TO COMPLY WITH NEPA IN THE CONTEXT OF A
PARTICULAR RATE PROCEEDING SO LONG AS NO INJUNCTION IS ISSUED BARRING
IMPLEMENTATION OF THE RATES THEMSELVES, CF. ATCHISON, T. & S. F. R. CO.
V. WICHITA BOARD OF TRADE, POST, P. 800. 

/2/ SEE IN PARTICULAR ^ 102(2) (C) OF THE ACT, 42 U.S.C. ^ 4332 (2)
(C). 

/3/  CF., E. G., UPPER PECOS ASSN. V. STANS, 452 F.2D 1233 (CA10
1971), VACATED AND REMANDED FOR CONSIDERATION OF MOOTNESS SUB NOM.
UPPER PECOS ASSN. V. PETERSON, 409 U.S. 1021 (1972); CALVERT CLIFFS'
COORDINATING COMM. V. ATOMIC ENERGY COMM'N, 146 U.S. APP. D. C. 33, 449
F.2D 1109 (1971); CITY OF NEW YORK V. UNITED STATES, 337 F. SUPP. 150,
158 - 160 (EDNY 1972). 

/4/  THUS, I CANNOT ACCEPT THE COURT'S ASSERTION THAT THE QUESTION
HERE IS "WHETHER IN A SPECIFIC CONTEXT NEPA SUB SILENTIO REVIVED
JUDICIAL PWOER THAT HAD BEEN EXPLICITLY ELIMINATED BY CONGRESS."  ANTE,
AT 69 .  THAT IS A QUESTION WHICH I DO NOT BELIEVE NEED EVER BE REACHED
HERE, FOR -- AS SHALL BE SEEN -- CONGRESS HAS NOT, TO BEGIN WITH,
DEPRIVED THE FEDERAL COURTS OF THEIR TRADITIONAL EQUITABLE POWERS IN
THE CONTEXT OF THESE CASES. 

/5/  ADMINISTRATIVE EXPERTISE IN SUCH MATTERS IS SURELY LODGED WITH
THE ENVIRONMENTAL PROTECTION AGENCY AND THE COUNCIL ON ENVIRONMENTAL
QUALITY. 

/6/  CF. L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 688
(1965). 

/7/  CONTRAST ATCHISON, T. & S. F. R. CO. V. WICHITA BOARD OF TRADE,
POST, P. 800. 

/8/  MOREOVER, EVEN IF THE COMMISSION FAILS TO REQUIRE RECORD
KEEPING AND THE PAYMENT OF REFUNDS SUA SPONTE, CONGRESS ALSO PROVIDED A
MECHANISM BY WHICH SHIPPERS MAY INITIATE AN ACTION BEFORE THE
COMMISSION TO SEEK REPARATIONS FROM A CARRIER ON THE GROUND THAT
PARTICULAR RATES ARE UNREASONABLE.  SEE 49 U.S.C. ^ 13(1). 

ARROW TRANSPORTATION CO. V. SOUTHERN R. CO., 372 U.S. 58 (1963), TO
BE SURE, DID NOT INVOLVE AN ECONOMIC DISPUTE BETWEEN SHIPPERS AND RAIL
CARRIERS, BUT WAS, INSTEAD, AN ACTION BROUGHT BY WATER CARRIERS WHICH
CONTENDED THAT CERTAIN CHALLENGED DECREASES IN THE RATES OF COMPETING
RAIL CARRIERS WERE DESIGNED TO DESTROY THEM RATHER THAN TO REACH
LEGITIMATE ECONOMIC OBJECTIVES.  OBVIOUSLY, THE REFUND AND REPARATION
PROVISIONS OF THE INTERSTATE COMMERCE ACT WERE OF NO MORE VALUE TO THE
WATER CARRIERS IN ARROW THAN THEY ARE TO THE NONSHIPPER APPELLEES IN
THIS CASE.  BUT, AS THE COURT POINTED OUT IN ARROW, "(CONFLICTS OVER
RATES BETWEEN COMPETING CARRIERS WERE FAMILIAR TO THE COMMISSION LONG
BEFORE (THE ENACTMENT OF THE SUSPENSION PROVISIONS) . . . INDEED, IN
ANOTHER PROVISION (NAMELY, 49 U.S.C. ^ 4(2)) OF THE VERY SAME STATUTE
(THAT ESTABLISHED THE SUSPENSION POWERS) CONGRESS . . . DEALT
EXPLICITLY WITH THE REDUCTION OF RATES BY RAILROADS COMPETING WITH
WATER CARRIERS . . . IN ADDITION ^ 8 OF THE ACT, 49 U.S.C. ^ 8, CREATES
A PRIVATE RIGHT OF ACTION FOR DAMAGES -- BASED UPON CONDUCT VIOLATIVE
OF THE ACT -- WHICH MIGHT BE AVAILABLE . . ."  372 U.S., AT 669.  THUS,
CONGRESS HAD TAKEN INTO ACCOUNT, AND HAD PROVIDED FOR, DISPUTES BETWEEN
COMPETING CARRIERS, AS WELL AS BETWEEN SHIPPERS AND CARRIERS, IN
ENACTING THE SUSPENSION PROVISIONS.  THE SAME CAN HARDLY BE SAID FOR
CONFLICTS BETWEEN THE ENVIRONMENTAL POLICIES OF NEPA AND THE
COMMISSION'S SUSPENSION POWER. 

/9/  INDEED, GIVEN THE SUBSTANTIAL ELEMENT OF PUBLIC INTEREST AT
STAKE IN A CASE SUCH AS THIS, IT IS APPROPRIATE TO RECALL MR. JUSTICE
STONE'S OFT-QUOTED ADMONITION:  "COURTS OF EQUITY MAY, AND FREQUENTLY
DO, GO MUCH FARTHER BOTH TO GIVE AND WITHHOLD RELIEF IN FURTHERANCE OF
THE PUBLIC INTEREST THAN THEY ARE ACCUSTOMED TO GO WHEN ONLY PRIVATE
INTERESTS ARE INVOLVED."  VIRGINIAN R. CO. V. SYSTEMS FEDERATION NO.
40, 300 U.S. 515, 552 (1937). 

/10/ CF. HECHT CO. V. BOWLES, 321 U.S. 321, 329 - 330 (1944). 

/11/  THUS, THE DISTRICT COURT, FULLY RECOGNIZING THE FINANCIAL
PLIGHT OF THE RAIL CARRIERS, CAREFULLY LIMITED ITS PRELIMINARY
INJUNCTION TO THE APPLICATION OF THE INTERIM SURCHARGE TO RECYCLABLE
MATERIALS, "ALLOWING (THE RAIL CARRIERS) TO COLLECT THE SURCHARGE ON
ALL NON-RECYCLABLE GOODS."  346 F. SUPP., AT 202. 

/12/  THE ARROW COURT ALSO POINTED OUT THAT EXPERIENCE WITH JUDICIAL
INJUNCTIONS AGAINST RATES PRIOR TO THE ESTABLISHMENT OF THE
COMMISSION'S SUSPENSION POWERS IN ^ 15(7) HAD "RESULTED IN DISPARITY OF
TREATMENT AS BETWEEN DIFFERENT SHIPPERS, CARRIERS, AND SECTIONS OF THE
COUNTRY, CAUSING IN TURN 'DISCRIMINATION AND HARDSHIP TO THE GENERAL
PUBLIC.'"  372 U.S., AT 664.  THESE RESULTS WERE DUE BOTH TO THE
CONFLICTING VIEWS OF LOWER FEDERAL COURTS AS TO THEIR POWER TO ENJOIN
RATES PENDING AGENCY DETERMINATION OF THEIR LAWFULNESS AND CONFLICTING
JUDGMENTS OF DIFFERENT COURTS AS TO THE REASONABLENESS OF THE SAME
RATES.  SEE ID., AT 663 - 664.  BUT THE DANGER OF CONFLICTING JUDGMENTS
CONCERNING THE SAME RATES AND UNEVENHANDED TREATMENT OF SHIPPERS AND
CARRIERS, MERELY BECAUSE OF THE FORTUITY OF THE PARTICULAR JUDICIAL
DISTRICT IN WHICH THEY ARE LOCATED, IS NOT PRESENT WHERE, AS HERE, THE
ALLEGATION IS THAT THE COMMISSION HAS FAILED TO FOLLOW THE REQUIREMENTS
OF A STATUTE -- NEPA -- RELEVANT TO THE EXERCISE OF ITS REGULATORY
JURISDICTION AND THE COMMISSION HAS, AS A CONSEQUENCE, BEEN JOINED IN
THE SUIT AS A DEFENDANT.  SO LONG AS THE COMMISSION HAS BEEN MADE A
PARTY, IT IS POSSIBLE TO ENSURE UNIFORMITY OF TREATMENT BY FAILURE TO
COMPLY WITH NEPA IS BELIEVED TO EXIST.  THIS IS WHAT THE DISTRICT COURT
DID HERE WHEN IT ENJOINED THE COMMISSION "FROM PERMITTING . . . THE 2.5
PER CENT SURCHARGE" TO BE COLLECTED BY THE RAIL-CARRIERS "PENDING
FURTHER ORDER OF THIS COURT."  SEE JURISDICTIONAL STATEMENT 30A.  IT
MAY BE THAT THE DANGER OF CONFLICTING RESULTS WHERE THE COMMISSION HAS
NOT BEEN MADE A PARTY WOULD WARRANT A COURT STAYING ITS HAND, BUT THAT
IS NOT A PROBLEM HERE. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES ET
AL. IN NO. 72 - 535.  WITH HIM ON THE BRIEFS WERE ASSISTANT ATTORNEY
GENERAL FRIZZELL, EDWARD R. KORMAN, FRITZ R. KAHN, BETTY JO CHRISTIAN,
AND JAMES F. TAO.  HUGH B. COX ARGUED THE CAUSE FOR APPELLANTS IN NO.
72 - 562.  WITH HIM ON THE BRIEFS WERE CHARLES A. HORSKY, MICHAEL
BOUDIN, AND EDWARD A. KAIER. 

PETER H. MEYERS ARGUED THE CAUSE PRO HAC VICE FOR STUDENTS
CHALLENGING REGULATORY AGENCY PROCEDURES, APPELLEE IN BOTH CASES.  WITH
HIM ON THE BRIEF WAS JOHN F. BANZHAF III.  JOHN F. DIENELT ARGUED THE
CAUSE PRO HAC VICE FOR ENVIRONMENTAL DEFENSE FUND ET AL., APPELLEES IN
BOTH CASES.  WITH HIM ON THE BRIEF WAS DENNIS M. FLANNERY. 

JEROME J. MCGRATH FILED A BRIEF FOR INDEPENDENT NATURAL GAS
ASSOCIATION OF AMERICA AS AMICUS CURIAE URGING REVERSAL. 

EDWARD L. MERRIGAN FILED A BRIEF FOR NATIONAL ASSOCIATION OF
SECONDARY MATERIAL INDUSTRIES, INC., AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :


















GAFFNEY V. CUMMINGS 412 U.S. 735 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT

        NO. 71 - 1476.  ARGUED FEBRUARY 26-27, 1973--DECODED JUNE
18, 1973 341 F. SUPP. 139. 

  REVERSED. 


    CONNECTICUT'S LEGISLATIVE APPORTIONMENT PLAN WAS HELD BY THE

  DISTRICT COURT TO BE UNCONSTITUTIONAL BECAUSE PARTISAN POLITICAL

  STRUCTURING HAD RESULTED IN EXCESSIVE POPULATION DEVIATIONS IN

  THE HOUSE DISTRICTING.  HELD: 

     1.  MINOR DEVIATIONS FROM MATHEMATICAL EQUALITY AMONG STATE

  LEGILATIVE DISTRICTS DO NOT MAKE OUT A PRIMA FACIE CASE OF

  INVIDIOUS DISCRIMINATION UNDER THE EQUAL PROTECTION CLAUSE OF THE

  FOURTEENTH AMENDMENT, AND IN THIS CASE, WHERE THE HOUSE DISTRICTS

  DEVIATED ON THE AVERAGE BY 1.9% AND THE MAXIMUM DEVIATION WAS

  7.83%, A PRIMA FACIE CASE WAS NOT MADE OUT.  PP. 740 - 751. 

     2.  A "POLITICAL FAIRNESS PRINCIPLE" THAT ACHIEVES A ROUGH

  APPROXIMATION OF THE STATEWIDE POLITICAL STRENGTHS OF THE TWO

  MAJOR PARTIES DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE.  PP.

 751 - 754. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL,
JJ., JOINED, POST, P. 772. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS IN THIS CASE ARE WHETHER THE POPULATION VARIATIONS
AMONG THE ELECTION DISTRICTS PROVIDED BY A REAPPORTIONMENT PLAN FOR THE
CONNECTICUT GENERAL ASSEMBLY, PROPOSED IN 1971, MADE OUT A PRIMA FACIE
CASE OF INVIDIOUS DISCRIMINATION UNDER THE EQUAL PROTECTION CLAUSE AND
WHETHER AN OTHERWISE ACCEPTABLE REAPPORTIONMENT PLAN IS
CONSTITUTIONALLY VULNERABLE WHERE ITS PURPOSE IS TO PROVIDE DISTRICTS
THAT WOULD ACHIEVE "POLITICAL FAIRNESS" BETWEEN THE POLITICAL PARTIES. 

        I 

THE REAPPORTIONMENT PLAN FOR THE CONNECTICUT GENERAL ASSEMBLY BECAME
LAW WHEN PUBLISHED BY CONNECTICUT'S SECRETARY OF STATE IN DECEMBER
1971.  UNDER THE STATE'S CONSTITUTION, THE LEGISLATURE IS GIVEN THE
INITIAL OPPORTUNITY TO REAPPORTION ITSELF IN THE MONTHS IMMEDIATELY
FOLLOWING THE COMPLETION OF A DECENNIAL CENSUS OF THE UNITED STATES. 
CONN. CONST., ART. III, ^ 6(B).  IN THE PRESENT CASE, THE LEGISLATURE
WAS UNABLE TO AGREE ON A PLAN BY THE STATE CONSTITUTIOANL DEADLINE OF
APRIL 1, 1971.  THE TASK WAS THEREFORE TRANSFERRED, AS REQUIRED BY THE
CONSTITUTION, TO AN EIGHT-MEMBER BIPARTISAN COMMISSION.  IBID.  THE
DEMOCRATIC AND REPUBLICAN PARTY LEADERS IN THE LEGISLATURE EACH
APPOINTED FOUR COMMISSIONERS.  THE COMMISSION WAS GIVEN UNTIL JULY 1,
1971, TO DEVISE A REAPPORTIONMENT PLAN, ID., ^ 6(C); BUT, ALTHOUGH THE
COMMISSION APPROACHED AGREEMENT, IT TOO WAS UNABLE TO ADOPT A PLAN
WITHIN THE DEADLINE.  ACCORDINGLY, AS A FINAL STEP IN THE
CONSTITUTIONAL PROCESS, A THREE-MAN BIPARTISAN BOARD WAS CONSTITUTED. 
ID., ^ 6(D).  THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, A DEMOCRAT,
AND THE REPUBLICAN MINORITY LEADER OF THE HOUSE EACH CHOSE A JUDGE OF
THE STATE SUPERIOR COURT TO BE A BOARD MEMBER, AND THE TWO JUDGES IN
TURN DESIGNATED A THIRD BOARD MEMBER, WHO WAS A JUSTICE OF THE STATE
SUPREME COURT.  IBID. 

THIS APPORTIONMENT BOARD, USING THE CENSUS DATA AVAILABLE DURING THE
SUMMER OF 1971, AND RELYING HEAVILY ON THE LEGISLATIVE COMMISSION'S
TENTATIVE PLANS, FILED A REAPPORTIONMENT PLAN ON SEPTEMBER 30, 1071,
WITH ONE MEMBER DISSENTING. 

ACCORDING TO THE 1970 CENSUS DATA BEFORE THE BOARD, THE POPULATION
OF CONNECTICUT IS 3,032,217.  THE BOARD'S REAPPORTIONMENT PLAN PROVIDES
FOR A SENATE CONSISTING OF 36 SENATORS ELECTED FROM SINGLE-MEMBER
DISTRICTS.  THE IDEAL SENATORIAL DISTRICT, IN TERMS OF POPULATION,
WOULD THUS CONTAIN 84,228 PEOPLE.  THE DISTRICTS ACTUALLY CREATED
DEVIATE, ON THE AVERAGE, BY 0.45% FROM THIS IDEAL, THE MEDIAN DEVIATION
BEING 0.47%.  THE LARGEST AND SMALLEST SENATORIAL DISTRICTS DEVIATE BY
0.88% AND -0.93%, RESPECTIVELY, MAKING THE TOTAL MAXIMUM DEVIATION
1.81%.  /1/ 

THE REAPPORTIONMENT PLAN PROPOSED A HOUSE OF 151 SINGLE-MEMBER
DISTRICTS.  THE POPULATION OF THE IDEAL ASSEMBLY DISTRICT WOULD BE
20,081.  THE AVERAGE DEVIATION FROM PERFECT EQUALITY FOR ALL THE PLAN'S
ASSEMBLY DISTRICTS IS 1.9%, THE MEDIAN DEVIATION, 1.8%.  THE MAXIMUM
DEVIATION FROM THE IDEAL IS  3.93% AND -3.9%.  THE MAXIMUM DEVIATION
BETWEEN ANY TWO DISTRICTS THUS TOTALS 7.83%.  /2/ 

IN CONNECTICUT, TOWNS RATHER THAN COUNTIES ARE THE BASIC UNIT OF LOCAL
GOVERNMENT.  SEE BUTTERWORTH V. DEMPSEY, 229 F. SUPP. 754, 761 (CONN.),
AFF'D, 378 U.S. 564 (1964).  THE STATE CONSTITUTION PROVIDES THAT "NO
TOWN SHALL BE DIVIDED" FOR THE PURPOSE OF CREATING HOUSE DISTRICTS,
EXCEPT WHERE DISTRICTS ARE FORMED "WHOLLY WITHIN THE TOWN."  ART. III,
^ 4.  NO COMPARABLE DIRECTIVE EXISTS FOR THE CREATION OF SENATE
DISTRICTS.  THE CONSTITUTION FURTHER PROVIDES, HOWEVER, THAT THE
"ESTABLISHMENT OF DISTRICTS . . . SHALL BE CONSISTENT WITH FEDERAL
CONSTITUTIONAL STANDARDS."  ID., ^ 5.  TO MEET THOSE STANDARDS AND TO
REACH WHAT IT THOUGHT TO BE SUBSTANTIAL POPULATION EQUALITY, THE BOARD
CUT THE BOUNDARY LINES OF 47 OF THE STATE'S 169 TOWNS.  /3/  THE BOARD
ALSO CONSCIOUSLY AND OVERTLY ADOPTED AND FOLLOWED A POLICY OF
"POLITICAL FAIRNESS," WHICH AIMED AT A ROUGH SCHEME OF PROPORTIONAL
REPRESENTATION OF THE TWO MAJOR POLITICAL PARTIES.  SENATE AND HOUSE
DISTRICTS WERE STRUCTURED SO THAT THE COMPOSITION OF BOTH HOUSES WOULD
REFLECT "AS CLOSELY AS POSSIBLE . . . THE ACTUAL (STATEWIDE) PLURALITY
OF VOTE ON THE HOUSE OR SENATE LINES IN A GIVEN ELECTION."  /4/  RATHER
THAN FOCUSING ON PARTY MEMBERSHIP IN THE RESPECTIVE DISTRICTS, THE
BOARD TOOK INTO ACCOUNT THE PARTY VOTING RESULTS IN THE PRECEDING THREE
STATEWIDE ELECTIONS, AND, ON THAT BASIS, CREATED WHAT WAS THOUGHT TO BE
A PROPORTIONATE NUMBER OF REPUBLICAN AND DEMOCRATIC LEGISLATIVE SEATS. 

IN NOVEMBER 1971, NOT LONG AFTER THE BOARD FILED THE REAPPORTIONMENT
PLAN WITH THE SECRETARY OF THE STATE, AN ACTION WAS BROUGHT IN FEDERAL
DISTRICT COURT SEEKING DECLARATORY AND INJUNCTIVE RELIEF AGAINST
IMPLEMENTATION OF THE PLAN.  THE COMPLAINT ALLEGED THAT THE BOARD
"ERRONEOUSLY APPLIED THE ONE MAN-ONE VOTE DOCTRINE OF THE FOURTEENTH
AMENDMENT . . . TO ACHIEVE SMALLER DEVIATIONS FROM POPULATION EQUALITY
FOR THE ASSEMBLY DISTRICTS THAN WAS REQUIRED BY THE FOURTEENTH
AMENDMENT . . . AND THEREBY WAS COMPELLED TO SEGMENT AN EXCESSIVE
NUMBER OF TOWNS IN FORMING ASSEMBLY DISTRICTS."  THE COMPLAINT FURTHER
ALLEGED THE PLAN AMOUNTED TO A POLITICAL GERRYMANDER AND CONTAINED "A
BUILT-IN BIAS IN FAVOR OF THE REPUBLICAN PARTY."  APPELLANT GAFFNEY,
THE CHAIRMAN OF THE STATE REPUBLICAN PARTY, WAS PERMITTED TO INTERVENE
IN SUPPORT OF THE BOARD'S PLAN AND, AFTER A THREE-JUDGE COURT WAS
EMPANELED, THE COURT HEARD TESTIMONY IN MARCH 1972.  AT THE HEARING,
PLAINTIFFFS INTRODUCED THREE ALTERNATIVE HOUSE APPORTIONMENT PLANS THAT
REQUIRED FEWER TOWN-LINE CUTS, ALTHOUGH ALL THREE PLANS INVOLVED TOTAL
DEVIATIONS FROM POPULATION EQUALITY IN EXCESS OF THOSE CONTAINED IN THE
BOARD PLAN.  /5/  A FOURTH PLAN FOR THE HOUSE WAS SUBMITTED WITH A
TOTAL MAXIMUM DEVIATION FROM POPULATION EQUALITY AMONG DISTRICTS OF
2.61%, AS COMPARED WITH THE BOARD PLAN, WHICH CONTAINED A 7.83% TOTAL
MAXIMUM DEVIATION.  THIS ALTERNATIVE PLAN, HOWEVER, WAS PREPARED
WITHOUT REGARD FOR TOWN LINES, WHICH WERE CUT SUBSTANTIALLY MORE TIMES
THAN IN THE BOARD PLAN.  /6/  CONSIDERABLE EVIDENCE WAS INTRODUCED
DEMONSTRATING THE OBVIOUS POLITICAL CONSIDERATIONS IN THE BOARD'S
DISTRICT MAKING.  /7/  IN LATE MARCH, THE DISTRICT COURT FILED ITS
DECISION INVALIDATING THE BOARD PLAN AND PERMANENTLY ENJOINING ITS USE
IN FUTURE ELECTIONS.  341 F. SUPP. 139.  THE COURT HELD THAT "THE
DEVIATIONS FROM EQUALITY OF POPULATIONS OF THE SENATE AND HOUSE
DISTRICTS ARE NOT JUSTIFIED BY ANY SUFFICIENT STATE INTEREST AND THAT
THE PLAN DENIES EQUAL PROTECTION OF THE LAW TO VOTERS IN THE DISTRICTS
OF GREATER POPULATION . . ."  ID., AT 148.  THE COURT RELIED IN PART ON
KIRKPATRICK V. PREISLER, 394 U.S. 526 (1969).  MORE PARTICULARLY, THE
COURT FOUND THAT THE POLICY OF "PARTISAN POLITICAL STRUCTURING," 341 F.
SUPP., AT 150, "CANNOT BE APPROVED AS A LEGITIMATE REASON FOR VIOLATING
THE REQUIREMENT OF NUMBERICAL EQUALITY OF POPULATION IN DISTRICTING." 
ID., AT 149.  THE COURT THEREFORE REQUIRED THAT A PLAN REFLECTING
"CLOSER ADHERENCE TO THE CONSTITUTIONAL GUIDELINES" BE ADOPTED. 
JURISDICTION OVER THE CASE WAS RETAINED FOR ALL PURPOSES, AND THE COURT
ANNOUNCED THAT IT "WILL APPOINT A MASTER . . . TO DEVISE A PLAN
CONFORMING TO FEDERAL AND STATE CONSTITUTIONAL REQUIREMENTS . . ." 
ID., AT 150. 

ON JUNE 12, 1972, AFTER A MOTION TO EXPEDITE CONSIDERATION OF THE
APPEAL HAD BEEN DENIED (406 U.S. 942), THIS COURT GRANTED APPELLANT'S
MOTION FOR A STAY OF THE DISTRICT COURT'S JUDGMENT.  407 U.S. 902.  ON
THE BASIS OF THAT STAY, AND A SUBSEQUENT SUPPORTIVE STATE ORDER, /8/
THE 1972 FALL ELECTIONS FOR THE STATE ASSEMBLY WERE HELD UNDER THE
BOARD'S REAPPORTIONMENT PLAN.  WHEN THIS COURT CONVENED IN OCTOBER
1972, WE NOTED PROBABLE JURISDICTON OVER THE APPEAL.  409 U.S. 839.  BY
THIS TIME, A SPECIAL MASTER HAD BEEN APPOINTED BY THE DISTRICT COURT
AND HAD PREPARED A REAPPORTIONM .

        II 

WE THINK THAT APPELEES' SHOWING OF NUMERICAL DEVIAIONS FROM
POPULATION EQUALITY AMONG THE SENATE AND HOUSE DISTRICTS IN THIS CASE
FAILED TO MAKE OUT A PRIMA FACIE VIOLATION OF THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, WHETHER THOSE DEVIATIONS ARE
CONSIDERED ALONE OR IN COMBINATION WITH THE ADDITIONAL FACT THAT
ANOTHER PLAN COULD BE CONCEIVED WITH LOWER DEVIATIONS AMONG THE STATE'S
LEGISLATIVE DISTRICTS.  PUT ANOTHER WAY, THE ALLEGATIONS AND PROOF OF
POPULATION DEVIATIONS AMONG THE DISTRICTS FAIL IN SIZE AND QUALITY TO
AMOUNT TO AN INVIDIOUS DISCRIMINATION UNDER THE FOURTEENTH AMENDMENT
WHICH WOULD ENTITLE APPELLEES TO RELIEF, ABSENT SOME COUNTERVAILING
SHOWING BY THE STATE. 

THE REQUIREMENT OF ART. I, ^ 2, OF THE CONSTITUTION, THAT
REPRESENTATIVES BE CHOSEN "BY THE PEOPLE OF THE SEVERAL STATES,"
MANDATES THAT "ONE MAN'S VOTE IN A CONGRESSIONAL ELECTION IS TO BE
WORTH AS MUCH AS ANOTHER'S."  WESBERRY V. SANDERS, 376 U.S. 1, 8 (1964)
(FOOTNOTE OMITTED).  THIS STANDARD "PERMITS ONLY THE LIMITED POPULATION
VARIANCES WHICH ARE UNAVOIDABLE DESPITE A GOODFAITH EFFORT TO ACHIEVE
ABSOLUTE EQUALITY, OR FOR WHICH JUSTIFICATION IS SHOWN."  KIRKPATRICK
V. PREISLER, 394 U.S., AT 531.  IN KIRKPATRICK AND IN WELLS V.
ROCKEFELLER, 394 U.S. 542 (1969), THE COURT FOUND INCONSISTENT WITH
THIS STANDARD STATE STATUTES CREATING CONGRESSIONAL DISTRICTS HAVING
TOTAL MAXIMUM DEVIATIONS OF 5.97% AND 13.1%, RESPECTIVELY.  IT IS THE
STANDARD OF THESE CASES WHICH IS THE PREVAILING RULE UNDER ART. I AND
WHICH WE CONFIRM IN WHITE V. WEISER, POST, P. 783, TODAY, FOR THE
PURPOSES OF CONGRESSIONAL REAPPORTIONMENT. 

EARLIER THIS TERM, THE QUESTION AROSE WHETHER THE SAME STANDARD IS
APPLICABLE WHEN REVIEWING STATE LEGISLATIVE REAPPORTIONMENTS UNDER THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  MAHAN V. HOWELL,
410 U. S. 315 (1973).  WE CONCLUDED THAT THERE ARE FUNDAMENTAL
DIFFERENCES BETWEEN CONGRESSIONAL DISTRICTING UNDER ART. I AND THE
WESBERRY LINE OF CASES ON THE ONE HAND, AND, ON THE OTHER, STATE
LEGISLATIVE REAPPORTIONMENTS GOVERNED BY THE FOURTEENTH AMENDMENT AND
REYNOLDS V. SIMS, 377 U.S. 533 (1964), AND ITS PROGENY.  NOTING THAT
THE "DICHOTOMY BETWEEN THE TWO LINES OF CASES HAS CONSISTENTLY BEEN
MAINTAINED," 410 U.S., AT 322, WE CONCLUDED THAT "THE CONSTITUTIONALITY
OF VIRGINIA'S LEGISLATIVE REDISTRICTING PLAN WAS NOT TO BE JUDGED BY
THE MORE STRINGENT STANDARDS THAT KIRKPATRICK AND WELLS MAKE APPLICABLE
TO CONGRESSIONAL REAPPORTIONMENT, BUT INSTEAD BY THE EQUAL PROTECTION
TEST ENUNCIATED IN REYNOLDS V. SIMS,"  ID., AT 324, THAT TEST BEING
THAT DISTRICTS IN STATE REAPPORTIONMENTS BE "AS NEARLY OF EQUAL
POPULATION AS IS PRACTICABLE," REYNOLDS, SUPRA, AT 577, AND THAT "(SO
LONG AS THE DIVERGENCES FROM A STRICT POPULATION STANDARD ARE BASED ON
LEGITIMATE CONSIDERATIONS INCIDENT TO THE EFFECTUATION OF A RATIONAL
STATE POLICY, SOME DEVIATIONS FROM THE EQUAL-POPULATION PRINCIPLE ARE
CONSTITUTIONALLY PERMISSIBLE WITH RESPECT TO THE APPORTIONMENT OF SEATS
IN EITHER OR BOTH OF THE TWO HOUSES OF A BICAMERAL STATE LEGISLATURE." 
ID., AT 579.  IN MAHAN, THE IDEAL DISTRICT WAS 46,485 PERSONS PER
DELEGATE.  THE MAXIMUM VARIATION FROM THE IDEAL WAS 16.4% -- "THE 12TH
DISTRICT BEING OVERREPRESENTED BY 6.8% AND THE 16TH DISTRICT BEING
UNDERREPRESENTED BY 9.6%."  410 U.S., AT 319 (FOOTNOTE OMITTED).  THE
AVERAGE PERCENTAGE VARIATION UNDER THE PLAN WAS  /- 3.89%.  OF THE 52
HOUSE DISTRICTS, 35 WERE WITHIN 4% OF THE IDEAL DISTRICT, AND NINE
EXCEEDED A 6% VARIATION FROM THE IDEAL. 

THE ASSERTED JUSTIFICATION FOR THE DIVERGENCIES IN MAHAN WAS "THE
STATE'S POLICY OF MAINTAINING THE INTEGRITY OF POLITICAL SUBDIVISION
LINES," 410 U.S., AT 325, A POLICY WE FOUND TO BE RATIONAL AND WHOLLY
SUFFICIENT TO JUSTIFY THE DISTRICT POPULATION DISPARTIES OF THE SIZE
AND QUALITY THAT HAD BEEN FOUND TO EXIST.  WE RULED THAT THE
"RELATIVELY MINOR VARIATIONS PRESENT IN THE VIRGINIA PLAN CONTRAST
SHARPLY WITH THE LARGER VARIATIONS IN STATE LEGISLATIVE REAPPORTIONMENT
PLANS THAT HAVE BEEN STRUCK DOWN BY PREVIOUS DECISIONS OF THIS COURT,"
MAHAN, SUPRA, AT 329, AND THAT "VIRGINIA HAS NOT SACRIFICED SUBSTANTIAL
EQUALITY TO JUSTIFIABLE DEVIATIONS."  IBID. 

ALTHOUGH REQUIRING THAT THE POPULATION VARIATIONS AMONG LEGISLATIVE
DISTRICTS IN MAHAN BE JUSTIFIED BY SUBSTANTIAL STATE CONSIDERATIONS, WE
DID NOT HOLD THAT IN STATE LEGISLATIVE CASES ANY DEVIATIONS FROM
PERFECT POPULATION EQUALITY IN THE DISTRICTS, HOWEVER SMALL, MAKE OUT
PRIMA FACIE EQUAL PROTECTION VIOLATIONS AND REQUIRE THAT THE CONTESTED
REAPPORTIONMENTS BE STRUCK DOWN ABSENT ADEQUATE STATE JUSTIFICATION. 
NOR HAD WE SO HELD IN ANY PRIOR STATE REAPPORTIONMENT CASE.  SWANN V.
ADAMS, 385 U. S. 440 (1967), AND KILGARLIN V. HILL, 386 U.S. 120
(1967), REQUIRED STATE JUSTIFICATION OF POPULATION VARIATIONS FOUND IN
STATE LEGISLATIVE REAPPORTIONMENTS, BUT THE VARIATIONS INVOLVED IN EACH
OF THESE CASES EXCEEDED THOSE WE DEALT WITH IN MAHAN. 

IN THE CASE NOW BEFORE US, APPELLANT URGES THAT THE POPULATION
VARIATIONS AMONG SENATE AND HOUSE DISTRICTS IN THE BOARD PLAN DID NOT
IN AND OF THEMSELVES DEMONSTRATE AN EQUAL PROTECTION VIOLATION AND THAT
THE STATE WAS NOT REQUIRED TO JUSTIFY THEM, ABSENT FURTHER PROOF OF
INVIDIOUSNESS BY APPELLEES.  FOR SEVERAL REASONS WE THINK THE POINT IS
WELL TAKEN AND THAT THE DISTRICT COURT ERRED IN HOLDING TO THE
CONTRARY.    AS WE NOTED IN MAHAN V. HOWELL, REYNOLDS V. SIMS
RECOGNIZED THAT A STATE MUST MAKE AN HONEST AND GOODFAITH EFFORT TO
CONSTRUCT ITS DISTRICTS "AS NEARLY OF EQUAL POPULATION AS IS
PRACTICABLE," BUT THAT ABSOLUTE EQUALITY WAS A "PRACTICAL
IMPOSSIBILITY":  "MATHEMATICAL EXACTNESS OR PRECISION IS HARDLY A
WORKABLE CONSTITUTIONAL REQUIREMENT."  377 U.S., AT 577.  MOREOVER, THE
REYNOLDS COURT ALSO NOTED THAT "SOME DISTINCTIONS MAY WELL BE MADE
BETWEEN CONGRESSIONAL AND STATE LEGISLATIVE REPRESENTATION," AND THAT
"(SOMEWHAT MORE FLEXIBILITY MAY THEREFORE BE CONSTITUTIONALLY
PERMISSIBLE WITH RESPECT TO STATE LEGISLATIVE APPORTIONMENT THAN IN
CONGRESSIONAL DISTRICTING."  ID., AT 578.  ALL THAT WOULD BE REQUIRED
WAS "SUBSTANTIAL EQUALITY OF POPULATION AMONG THE VARIOUS DISTRICTS, SO
THAT THE VOTE OF ANY CITIZEN IS APPROXIMATELY EQUAL IN WEIGHT TO THAT
OF ANY OTHER CITIZEN IN THE STATE."  ID., AT 579.  IN OTHER WORDS,
"(SIMPLY STATED, AN INDIVIDUAL'S RIGHT TO VOTE FOR STATE LEGISLATORS IS
UNCONSITUTIONALLY IMPAIRED WHEN ITS WEIGHT IS IN A SUBSTANTIAL FASHION
DILUTED WHEN COMPARED WITH VOTES OF CITIZENS LIVING IN OTHER PARTS OF
THE STATE."  ID., AT 568. 

AS THESE PRONOUNCEMENTS HAVE BEEN WORKED OUT IN OUR CASES, IT HAS
BECOME APPARENT THAT THE LARGER VARIATIONS FROM SUBSTANTIAL EQUALITY
ARE TOO GREAT TO BE JUSTIFIED BY ANY STATE INTEREST SO FAR SUGGESTED. 
THERE WERE THUS THE ENORMOUS VARIATIONS STRUCK DOWN IN THE EARLY CASES
BEGINNING WITH REYNOLDS V. SIMS, /9/  AS WELL AS THE MUCH SMALLER, BUT
NEVERTHELESS UNACCEPTABLE DEVIATIONS, APPEARING IN LATER CASES SUCH AS
SWANN V. ADAMS, 385 U.S. 440 (1967); KILGARLIN V. HILL, 386 U.S. 120
(1967); AND WHITCOMB V. CHAVIS, 403 U.S. 124, 161 - 163 (1971).  ON THE
OTHER HAND, AS MAHAN V. HOWELL DEMONSTRATES, POPULATION DEVIATIONS
AMONG DISTRICTS MAY BE SUFFICIENTLY LARGE TO REQUIRE JUSTIFICATION BUT
NONETHELESS BE JUSTIFIABLE AND LEGALLY SUSTAINABLE.  IT IS NOW TIME TO
RECOGNIZE, IN THE CONTEXT OF THE EMINENTLY REASONABLE APPROACH OF
REYNOLDS V. SIMS, THAT MINOR DEVIATIONS FROM MATHEMATICAL EQUALITY
AMONG STATE LEGISLATIVE DISTRICTS ARE INSUFFICIENT TO MAKE OUT A PRIMA
FACIE CASE OF INVIDIOUS DISCRIMINATION UNDER THE FOURTEENTH AMENDMENT
SO AS TO REQUIRE JUSTIFICATION BY THE STATE. 

WE DOUBT THAT REYNOLDS WOULD MANDATE ANY OTHER RESULT, IF FOR NO
OTHER REASON THAN THAT THE BASIC STATISTICAL MATERIALS WHICH
LEGISLATURES AND COURTS USUALLY HAVE TO UORK WITH ARE THE RESULTS OF
THE UNITED STATES CENSUS TAKEN AT 10-YEAR INTERVALS AND PUBLISHED AS
SOON AS POSSIBLE AFTER THE BEGINNING OF EACH DECADE.  THESE FIGURES MAY
BE AS ACCURATE AS SUCH IMMENSE UNDERTAKINGS CAN BE, BUT THEY ARE
INHERENTLY LESS THAN ABSOLUTELY ACCURATE.  THOSE WHO KNOW ABOUT SUCH
THINGS RECOGNIZE THIS FACT, /10/  AND, UNLESS THEY ARE TO BE WHOLLY
IGNORED, IT MAKES LITTLE SENSE TO CONCLUDE FROM RELATIVELY MINOR
"CENSUS POPULATION" VARIATIONS AMONG LEGISLATIVE DISTRICTS THAT ANY
PERSON'S VOTE IS BEING SUBSTANTIALLY DILUTED.  THE "POPULATION" OF A
LEGISLATIVE DISTRICT IS JUST NOT THAT KNOWABLE TO BE USED FOR SUCH
REFINED JUDGMENTS. 

WHAT IS MORE, IT MUST BE RECOGNIZED THAT TOTAL POPULATION, EVEN IF
ABSOLUTELY ACCURATE AS TO EACH DISTRICT WHEN COUNTED, IS NEVERTHELESS
NOT A TALISMANIC MEASURE OF THE WEIGHT OF A PERSON'S VOTE UNDER A LATER
ADOPTED REAPPORTIONMENT PLAN.  THE UNITED STATES SENSUS IS MORE OF AN
EVENT THAN A PROCESS.  IT MEASURES POPULATION AT ONLY A SINGLE INSTANT
IN TIME.  DISTRICT POPULATIONS ARE CONSTANTLY CHANGING, OFTEN AT
DIFFERENT RATES IN EITHER DIRECTION, UP OR DOWN.SUBSTANTIAL
DIFFERENTIALS IN POPULATION GROWTH RATES ARE STRIKING AND WELL-KNOWN
PHENOMENA.  /11/  SO, TOO, IF IT IS THE WEIGHT OF A PERSON'S VOTE THAT
MATTERS, TOTAL POPULATION -- EVEN IF STABLE AND ACCURATELY TAKEN -- MAY
NOT ACTUALLY REFLECT THAT BODY OF VOTERS WHOSE VOTES MUST BE COUNTED
AND WEIGHED FOR THE PURPOSES OF REAPPORTIONMENT, BECAUSE "CENSUS
PERSONS" ARE NOT VOTERS.  /12/  THE PROPORTION OF THE CENSUS POPULATION
TOO YOUNG TO VOTE OR DISQUALIFIED BY ALIENAGE OR NONRESIDENCE VARIES
SUBSTANTIALLY AMONG THE STATES AND AMONG LOCALITIES WITHIN THE STATES. 
THE SIX CONGRESSIONAL DISTRICTS IN CONNECTICUT, FOR EXAMPLE, VARY FROM
ONE ANOTHER BY AS MUCH AS 4% IN THEIR AGE-ELIGIBLE VOTERS, WITH THE
FIRST DISTRICT HAVING 68% OF ITS CENSUS POPULATION AT VOTING AGE WHILE
THE SIXTH DISTRICT HAS 64% AT 18 YEARS OR OLDER.  BUREAU OF THE CENSUS,
CONGRESSIONAL DISTRICT DATA BOOK, 93D CONGRESS, CONNECTICUT 7 - 8
(1972).  OTHER STATES HAVE CONGRESSIONAL DISTRICTS THAT VARY FROM ONE
ANOTHER BY AS MUCH AS 29% AND AS LITTLE AS 1% WITH RESPECT TO THEIR AGE
ELIGIBLE VOTERS.  /13/  AND THESE FIGURES TELL US NOTHING OF THE OTHER
INELIGIBLES MAKING UP THE SUBSTANTIALLY EQUAL CENSUS POPULATIONS AMONG
ELECTION DISTRICTS:  ALIENS, NONRESIDENT MILITARY PERSONNEL,
NONRESIDENT STUDENTS, FOR EXAMPLE.  SEE BURNS V. RICHARDSON, 384 U.S.
73, 90 - 97 (1966); DAVIS V. MANN, 377 U.S. 678, 691 - 692 (1964); ELY
V. KLAHR, 403 U.S. 108, 115 - 116, N. 7 (1971); MAHAN V. HOWELL, 410
U.S., AT 330 - 332.  NOR DO THESE FIGURES TELL ANYTHING AT ALL ABOUT
THE PROPORTION OF ALL THOSE OTHERWISE ELIGIBLE INDIVIDUALS WHOSE VOTE
CANNOT BE COUNTED OR WEIGHED BECAUSE THEY EITHER FAILED TO REGISTER OR
FAILED TO VOTE.  /14/ 

REYNOLDS V. SIMS, OF COURSE, DEALT WITH MORE THAN THE STATISTICAL
NICETIES INVOLVED IN EQUALIZING INDIVIDUAL VOTING STRENGTH.  IT ARGUED
THAT "IF A STATE SHOULD PROVIDE THAT THE VOTES OF CITIZENS IN ONE PART
OF THE STATE SHOULD BE GIVEN TWO TIMES, OR FIVE TIMES, OR 10 TIMES THE
WEIGHT OF VOTES OF CITIZENS IN ANOTHER PART OF THE STATE, IT COULD
HARDLY BE CONTENDED THAT THE RIGHT TO VOTE OF THOSE RESIDING IN THE
DISFAVORED AREAS HAD NOT BEEN EFFECTIVELY DILUTED."  377 U.S., AT 562. 
TO CONCLUDE DIFFERENTLY, "AND TO SANCTION MINORITY CONTROL OF STATE
LEGISLATIVE BODIES, WOULD APPEAR TO DENY MAJORITY RIGHTS IN A WAY THAT
FAR SURPASSES ANY POSSIBLE DENIAL OF MINORITY RIGHTS THAT MIGHT
OTHERWISE BE THOUGHT TO RESULT."  ID., AT 565.  MORE FUNDAMENTALLY,
REYNOLDS RECOGNIZED THAT "THE ACHIEVING OF FAIR AND EFFECTIVE
REPRESENTATION FOR ALL CITIZENS IS . . . THE BASIC AIM OF LEGISLATIVE
APPORTIONMENT," ID., AT 565 - 566, AND IT WAS FOR THAT REASON THAT THE
DECISION INSISTED ON SUBSTANTIAL EQUALITY OF POPULATIONS AMONG
DISTRICTS. 

THIS IS A VITAL AND WORTHY GOAL, BUT SURELY ITS ATTAINMENT DOES NOT
IN ANY COMMONSENSE WAY DEPEND UPON ELIMINATING THE INSIGNIFICANT
POPULATION VARIATIONS INVOLVED IN THIS CASE.  FAIR AND EFFECTIVE
REPRESENTATION MAY BE DESTROYED BY GROSS POPULATION VARIATIONS AMONG
DISTRICTS, BUT IT IS APPARENT THAT SUCH REPRESENTATION DOES NOT DEPEND
SOLELY ON MATHEMATICAL EQUALITY AMONG DISTRICT POPULATIONS.  /15/
THERE ARE OTHER RELEVANT FACTORS TO BE TAKEN INTO ACCOUNT AND OTHER
IMPORTANT INTERESTS THAT STATES MAY LEGITIMATELY BE MINDFUL OF.  SEE
MAHAN V. HOWELL, SUPRA; ABATE V. MUNDT, 403 U.S. 182 (1971); DUSCH V.
DAVIS, 387 U.S. 112 (1967); SAILORS V. BOARD OF EDUCATION, 387 U.S. 105
(1967); BURNS V. RICHARDSON, SUPRA.  AN UNREALISTIC OVEREMPHASIS ON RAW
POPULATION FIGURES, A MERE NOSE COUNT IN THE DISTRICTS, MAY SUBMERGE
THESE OTHER CONSIDERATIONS AND ITSELF FURNISH A READY TOOL FOR IGNORING
FACTORS THAT IN DAY-TO-DAY OPERATION ARE IMPORTANT TO AN ACCEPTABLE
REPRESENTATION AND APPORTIONMENT ARRANGEMENT. 

NOR IS THE GOAL OF FAIR AND EFFECTIVE REPRESENTATION FURTHERED BY
MAKING THE STANDARDS OF REAPPORTIONMENT SO DIFFICULT TO SATISFY THAT
THE REAPPORTIONMENT TASK IS RECURRINGLY REMOVED FROM LEGISLATIVE HANDS
AND PERFORMED BY FEDERAL COURTS WHICH THEMSELVES MUST MAKE THE
POLITICAL DECISIONS NECESSARY TO FORMULATE A PLAN OR ACCEPT THOSE MADE
BY REAPPORTIONMENT PLAINTIFFS WHO MAY HAVE WHOLLY DIFFERENT GOALS FROM
THOSE EMBODIED IN THE OFFICIAL PLAN.  FROM THE VERY OUTSET, WE
RECOGNIZED THAT THE APPORTIONMENT TASK, DEALING AS IT MUST WITH
FUNDAMENTAL "CHOICES ABOUT THE NATURE OF REPRESENTATION," BURNS V.
RICHARDSON, 384 U.S., AT 92, IS PRIMARILY A POLITICAL AND LEGISLATIVE
PROCESS.  REYNOLDS V. SIMS, 377 U.S., AT 586.  WE DOUBT THAT THE
FOURTEENTH AMENDMENT REQUIRES REPEATED DISPLACEMENT OF OTHERWISE
APPROPRIATE STATE DECISIONMAKING IN THE NAME OF ESSENTIALLY MINOR
DEVIATIONS FROM PERFECT CENSUS-POPULATION EQUALITY THAT NO ONE, WITH
CONFIDENCE, CAN SAY WILL DEPRIVE ANY PERSON OF FAIR AND EFFECTIVE
REPRESENTATION IN HIS STATE LEGISLATURE. 

THAT THE COURT WAS NOT DETERRED BY THE HAZARDS OF THE POLITICAL
THICKET WHEN IT UNDERTOOK TO ADJUDICATE THE REAPPORTIONMENT CASES DOES
NOT MEAN THAT IT SHOULD BECOME BOGGED DOWN IN A VAST, INTRACTABLE
APPORTIONMENT SLOUGH, PARTICULARLY WHEN THERE IS LITTLE, IF ANYTHING,
TO BE ACCOMPLISHED BY DOING SO. 

THIS VERY CASE REPRESENTS WHAT SHOULD NOT HAPPEN IN THE FEDERAL
COURTS.  THE OFFICIAL STATE FUNCTIONARIES PROPOSED A PLAN WITH A
MAXIMUM VARIATION AMONG THE DISTRICTS OF 7.83% IN THE HOUSE AND 1.81%
IN THE SENATE, AND WITH RESPECTIVE AVERAGE VARIATIONS OF 1.90% AND
.45%.  APPELLEES THEN PROPOSED FOUR ALTERNATE PLANS FOR THE HOUSE,
THREE OF WHICH INVOLVED SLIGHTLY LARGER VARIATIONS AMONG DISTRICTS BUT
CUT FEWER TOWN LINES.  THE FOURTH CUT MORE LINES, BUT HAD A MAXIMUM
VARIATION BETWEEN ITS LARGEST AND SMALLEST DISTRICT OF ONLY 2.6%.  THE
DISTRICT COURT THOUGHT THE STATE PLAN INVOLVED UNACCEPTABLY LARGE
VARIATIONS BETWEEN DISTRICTS, ALTHOUGH IN THE HOUSE, WITH DISTRICTS OF
ABOUT 20,000 PEOPLE, THE AVERAGE VARIATION INVOLVED ONLY 399 PEOPLE,
AND THE LARGEST VARIATIONS INVOLVED ONLY 1,573 PEOPLE.  /16/  BUT
NEITHER DID THE DISTRICT COURT ADOPT ANY OF THE PLANS SUBMITTED BY
APPELLEES.  INSTEAD, IT APPOINTED ITS OWN MASTER TO COME UP WITH STILL
ANOTHER SCHEME.  THAT PLAN, WE ARE TOLD, INVOLVES A TOTAL MAXIMUM
DEVIATION IN THE HOUSE OF ONLY 1.16%.  /17/  WAS THE MASTER COMPELLED,
AS A FEDERAL CONSTITUTIONAL MATTER, TO COME UP WITH A PLAN WITH SMALLER
VARIATIONS THAN WERE CONTAINED IN APPELLEES' PLANS?  AND WHAT IS TO
HAPPEN TO THE MASTER'S PLAN IF A RESOURCEFUL MIND HITS UPON A PLAN
BETTER THAN THE MASTER'S BY A FRACTION OF A PERCENTAGE POINT"
INVOLVEMENTS LIKE THIS MUST END AT SOME POINT, BUT THAT POINT
CONSTANTLY RECEDES IF THOSE WHO LITIGATE NEED ONLY PRODUCE A PLAN THAT
IS MARGINALLY "BETTER" WHEN MEASURED AGAINST A RIGID AND UNYIELDING
POPULATION-EQUALITY STANDARD. 

THE POINT IS, THAT SUCH INVOLVEMENTS SHOULD NEVER BEGIN.  WE HAVE
REPEATEDLY RECOGNIZED THAT STATE REAPPORTIONMENT IS THE TASK OF LOCAL
LEGISLATURES OR OF THOSE ORGANS OF STATE GOVERNMENT SELECTED TO PERFORM
IT.  THEIR WORK SHOULD NOT BE INVALIDATED UNDER THE EQUAL PROTECTION
CLAUSE WHEN ONLY MINOR POPULATION VARIATIONS AMONG DISTRICTS ARE
PROVED.  HERE, THE PROOF AT TRIAL DEMONSTRATED THAT THE HOUSE DISTRICTS
UNDER THE STATE APPORTIONMENT BOARD'S PLAN VARIED IN POPUL TIONS FROM
ONE ANOTHER BY A MAXIMUM OF ON ABOUT 8% AND THAT THE AVERAGE DEVIATION
FROM THE IDEAL HOUSE DISTRICT WAS ONLY ABOUT 2%.  THE SENATE DISTRICTS
HAD EVEN LESS VARIATIONS.  ON SUCH A SHOWING, WE ARE QUITE SURE THAT A
PRIMA FACIE CASE OF INVIDIOUS DISCRIMINATION UNDER THE FOURTEENTH
AMENDMENT WAS NOT MADE OUT. 

        III 

STATE LEGISLATIVE DISTRICTS MAY BE EQUAL OR SUBSTANTIALLY EQUAL IN
POPULATION AND STILL BE VULNERABLE UNDER THE FOURTEENTH AMENDMENT.  A
DISTRICTING STATUTE OTHERWISE ACCEPTABLE, MAY BE INVALID BECAUSE IT
FENCES OUT A RACIAL GROUP SO AS TO DEPRIVE THEM OF THEIR PRE-EXISTING
MUNICIPAL VOTE.  GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960).  A
DISTRICTING PLAN MAY CREATE MULTIMEMBER DISTRICTS PERFECTLY ACCEPTABLE
UNDER EQUAL POPULATION STANDARDS, BUT INVIDIOUSLY DISCRIMINATORY
BECAUSE THEY ARE EMPLOYED "TO MINIMIZE OR CANCEL OUT THE VOTING
STRENGTH OF RACIAL OR POLITICAL ELEMENTS OF THE VOTING POPULATION." 
FORTSON V. DORSEY, 379 U.S. 433, 439 (1965).  SEE WHITE V. REGESTER,
POST, P. 755; WHITCOMB V. CHAVIS, 403 U.S. 124 (1971); ABATE V. MUNDT,
403 U.S., AT 184 N. 2; BURNS V. RICHARDSON, 384 U.S., AT 88 - 89.  WE
MUST, THEREFORE, RESPOND TO APPELLEES' CLAIMS IN THIS CASE THAT EVEN IF
ACCEPTABLE POPULATIONWISE, THE APPORTIONMENT BOARD'S PLAN WAS
INVIDIOUSLY DISCRIMINATORY BECAUSE A "POLITICAL FAIRNESS PRINCIPLE" WAS
FOLLOWED IN MAKING UP THE DISTRICTS IN BOTH THE HOUSE AND SENATE. 

THE RECORD ABOUNDS WITH EVIDENCE, AND IT IS FRANKLY ADMITTED BY
THOSE WHO PREPARED THE PLAN, THAT VIRTUALLY EVERY SENATE AND HOUSE
DISTRICT LINE WAS DRAWN WITH THE CONSCIOUS INTENT TO CREATE A
DISTRICTING PLAN THAT WOULD ACHIEVE A ROUGH APPROXIMATION OF THE
STATEWIDE POLITICAL STRENGTHS OF THE DEMOCRATIC AND REPUBLICAN PARTIES,
THE ONLY TWO PARTIES IN THE STATE LARGE ENOUGH TO ELECT LEGISLATORS
FROM DISCERNIBLE GEOGRAPHIC AREAS.  APPELLANT INSISTS THAT THE SPIRIT
OF "POLITICAL FAIRNESS" UNDERLYING THIS PLAN IS NOT ONLY PERMISSIBLE,
BUT A DESIRABLE CONSIDERATION IN LAYING OUT DISTRICTS THAT OTHERWISE
SATISFY THE POPULATION STANDARD OF THE REAPPORTIONMENT CASES. 
APPELLEES, ON THE OTHER HAND, LABEL THE PLAN AS NOTHING LESS THAN A
GIGANTIC POLITICAL GERRYMANDER, INVIDIOUSLY DISCRIMINATORY UNDER THE
FOURTEENTH AMENDMENT.  /18/ 

WE ARE QUITE UNCONVINCED THAT THE REAPPORTIONMENT PLAN OFFERED BY
THE THREE-MEMBER BOARD VIOLATED THE FOURTEENTH AMENDMENT BECAUSE IT
ATTEMPTED TO REFLECT THE RELATIVE STRENGTH OF THE PARTIES IN LOCATING
AND DEFINING ELECTION DISTRICTS.  IT WOULD BE IDLE, WE THINK, TO
CONTEND THAT ANY POLITICAL CONSIDERATION TAKEN INTO ACCOUNT IN
FASHIONING A REAPPORTIONMENT PLAN IS SUFFICIENT TO INVALIDATE IT.  OUR
CASES INDICATE QUITE THE CONTRARY.  SEE WHITE V. REGESTER, SUPRA; BURNS
V. RICHARDSON, SUPRA; WHITCOMB V. CHAVIS, SUPRA; ABATE V. MUNDT, SUPRA.
THE VERY ESSENCE OF DISTRICTING IS TO PRODUCE A DIFFERENT -- A MORE
"POLITICALLY FAIR" -- RESULT THAN WOULD BE REACHED WITH ELECTIONS AT
LARGE, IN WHICH THE WINNING PARTY WOULD TAKE 100% OF THE LEGISLATIVE
SEATS.  POLITICS AND POLITICAL CONSIDERATIONS ARE INSEPARABLE FROM
DISTRICTING AND APPORTIONMENT.  THE POLITICAL PROFILE OF A STATE, ITS
PARTY REGISTRATION, AND VOTING RECORDS ARE AVAILABLE PRECINCT BY
PRECINCT, WARD BY WARD.  THESE SUBDIVISIONS MAY NOT BE IDENTICAL WITH
CENSUS TRACTS, BUT, WHEN OVERLAID ON A CENSUS MAP, IT REQUIRES NO
SPECIAL GENIUS TO RECOGNIZE THE POLITICAL CONSEQUENCES OF DRAWING A
DISTRICT LINE ALONG ONE STREET RATHER THAN ANOTHER.  IT IS NOT ONLY
OBVIOUS, BUT ABSOLUTELY UNAVOIDABLE, THAT THE LOCATION AND SHAPE OF
DISTRICTS MAY WELL DETERMINE THE POLITICAL COMPLEXION OF THE AREA. 
DISTRICT LINES ARE RARELY NEUTRAL PHONOMENA.  THEY CAN WELL DETERMINE
WHAT DISTRICT WILL BE PREDOMINANTLY DEMOCRATIC OR PREDOMINANTLY
REPUBLICAN, OR MAKE A CLOSE RACE LIKELY.  REDISTRICTING MAY PIT
INCUMBENTS AGAINST ONE ANOTHER OR MAKE VERY DIFFICULT THE ELECTION OF
THE MOST EXPERIENCED LEGISLATOR.  THE REALITY IS THAT DISTRICTING
INEVITABLY HAS AND IS INTENDED TO HAVE SUBSTANTIAL POLITICAL
CONSEQUENCES. 

IT MAY BE SUGGESTED THAT THOSE WHO REDISTRICT AND REAPPORTION SHOULD
WORK WITH CENSUS, NOT POLITICAL, DATA AND ACHIEVE POPULATION EQUALITY
WITHOUT REGARD FOR POLITICAL IMPACT.  BUT THIS POLITICALLY MINDLESS
APPROACH MAY PRODUCE, WHETHER INTENDED OR NOT, THE MOST GROSSLY
GERRYMANDERED RESULTS; AND, IN ANY EVENT, IT IS MOT UNLIKELY THAT THE
POLITICAL IMPACT OF SUCH A PLAN WOULD REMAIN UNDISCOVERED BY THE TIME
IT WAS PROPOSED OR ADOPTED, IN WHICH EVENT THE RESULTS WOULD BE BOTH
KNOWN AND, IF NOT CHANGE, INTENDED. 

IT IS MUCH MORE PLAUSIBLE TO ASSUME THAT THOSE WHO REDISTRICT AND
REAPPORTION WORK WITH BOTH POLITICAL AND CENSUS DATA.  WITHIN THE
LIMITS OF THE POPULATION EQUALITY STANDARDS OF THE EQUAL PROTECTION
CLAUSE, THEY SEEK, THROUGH COMPROMISE OR OTHERWISE, TO ACHIEVE THE
POLITICAL OR OTHER ENDS OF THE STATE, ITS CONSTITUENTS, AND ITS OFFICE
HOLDERS.  WHAT IS DONE IN SO ARRANGING FOR ELECTIONS, OR TO ACHIEVE
POLITICAL ENDS OR ALLOCATE POLITICAL POWER, IS NOT WHOLLY EXEMPT FROM
JUDICIAL SCRUTINY UNDER THE FOURTEENTH AMENDMENT.  AS WE HAVE
INDICATED, FOR EXAMPLE, MULTIMEMBER DISTRICTS MAY BE VULNERABLE, IF
RACIAL OR POLITICAL GROUPS HAVE BEEN FENCED OUT OF THE POLITICAL
PROCESS AND THEIR VOTING STRENGTH INVIDIOUSLY MINIMIZED.  SEE WHITE V.
REGESTER, SUPRA; WHITCOMB V. CHAVIS, SUPRA.  SEE ALSO GOMILLION V.
LIGHTFOOT, 364 U.S. 339 (1960).  BEYOND THIS, WE HAVE NOT VENTURED FAR
OR ATTEMPTED THE IMPOSSIBLE TASK OF EXTIRPATING POLITICS FROM WHAT ARE
THE ESSENTIALLY POLITICAL PROCESSES OF THE SOVEREIGN STATES.  EVEN MORE
PLAINLY, JUDICIAL INTEREST SHOULD BE AT ITS LOWEST EBB WHEN A STATE
PURPORTS FAIRLY TO ALLOCATE POLITICAL POWER TO THE PARTIES IN
ACCORDANCE WITH THEIR VOTING STRENGTH AND, WITHIN QUITE TOLERABLE
LIMITS, SUCCEED IN DOING SO.  THERE IS NO DOUBT THAT THERE MAY BE OTHER
REAPPORTIONMENT PLANS FOR CONNECTICUT THAT WOULD HAVE DIFFERENT
POLITICAL CONSEQUENCES AND THAT WOULD ALSO BE CONSTITUTIONAL.  PERHAPS
ANY OF APPELLEES' PLANS WOULD HAVE FALLEN INTO THIS CATEGORY, AS WOULD
THE COURT'S, HAD IT PROPOUNDED ONE.  BUT NEITHER WE NOR THE DISTRICT
COURTS HAVE A CONSTITUTIONAL WARRANT TO INVALIDATE A STATE PLAN,
OTHERWISE WITHIN TOLERABLE POPULATION LIMITS, BECAUSE IT UNDERTAKES,
NOT TO MINIMIZE OR ELIMINATE THE POLITICAL STRENGTH OF ANY GROUP OR
PARTY, BUT TO RECOGNIZE IT AND, THROUGH DISTRICTING, PROVIDE A ROUGH
SORT OF PROPORTIONAL REPRESENTATION IN THE LEGISLATIVE HALLS OF THE
STATE. 

 REVERSED. 

/1/  THE RATIO OF THE LARGEST SENATE DISTRICT TO THE SMALLEST IS
1.018 TO 1. 

/2/  THE RATIO OF THE LARGEST ASSEMBLY DISTRICT TO THE SMALLEST IS
1.082 TO 1. 

/3/  SOME TOWN BOUNDARIES WERE CUT MORE THAN ONCE, RESULTING IN WHAT
THE PARTIES HAVE TERMED "TOWN SEGMENTS," OR PORTIONS OF A TOWN THAT
WERE USED TO FORM AN ASSEMBLY DISTRICT NOT WHOLLY WITHIN THAT TOWN. 
THE BOARD'S PLAN CREATES 78 SUCH SEGMENTS IN THE FORMATION OF THE 151
ASSEMBLY DISTRICTS. 

/4/  TESTIMONY OF JUDGE GEORGE A. SADEN, THE REPUBLICAN BOARD
MEMBER.  APP. 264.  ACCORDING TO MR. JAMES F. COLLINS, A STAFF MEMBER
OF THE BOARD, THE PLAN FOR THE HOUSE RESULTED IN APPROXIMATELY 70 SAFE
DEMOCRATIC SEATS, 55 TO 60 SAFE REPUBLICAN SEATS, WITH THE BALANCE
CHARACTERIZED AS PROBABLE OR SWING DEMOCRATIC OR REPUBLICAN OR "JUST
PLAIN SWING," 341 F. SUPP. 139, 147.  SEE APP. 126 - 127. 

/5/  THE BOARD'S SENATE PLAN WAS NOT CHALLENGED IN THE DISTRICT
COURT AND NO ALTERNATIVE SENATE PLAN WAS INTRODUCED.  APPELLEES DO NOT
CHALLENGE THE SENATE DISTRICTS ON THE GROUND OF THEIR POPULATION
DEVIATIONS.  BRIEF FOR APPELLEES 14 N. 4; TR. OF ORAL ARG. 20. 

/6/  PLAINTIFFS' PLAN RESULTED IN 58 TOWN-LINE CUTS AND 88 TOWN
SEGMENTS, AS OPPOSED TO THE CORRESPONDING FIGURES OF 47 AND 78 IN THE
BOARD'S PLAN. 

/7/  PLAINTIFFS FURTHER OFFERED TESTIMONY ILLUSTRATING THE
UNDESIRABILITY -- IN THE CONTEXT OF THE STATE'S ADMINISTRATIVE
APPARATUS -- OF EXCESSIVE CUTTING OF TOWN LINES. 

/8/  THE ORDER WAS ENTERED IN A PARALLEL STATE PROCEEDING, MILLER V.
SCHAFFER, NO. 173606, SUPER.  CT., HARTFORD COUNTY, FILED NOVEMBER 12,
1971, WHICH WAS DIRECTED AT CORRECTING CERTAIN CLERICAL ERRORS OR
OMISSIONS IN THE BOARD'S PLAN. 

/9/  REYNOLDS V. SIMS INVOLVED THE ALABAMA STATE LEGISLATURE, WHICH
HAD NOT REAPPORTIONED ITSELF IN OVER 60 YEARS.  UNDER THE APPORTIONMENT
EXISTING IN 1964, SOME SENATORIAL DISTRICTS WITH THE SAME NUMBER OF
REPRESENTATIVES HAD OVER 40 TIMES MORE PEOPLE THAN OTHERS.  HOUSE
DISTRICTS WITH IDENTICAL REPRESENTATION COULD VARY BY 16 TO 1.  IN
MARYLAND IN 1964, SOME HOUSE DISTRICTS WITH NOMINALLY EQUAL
REPRESENTATION COULD HAVE SIX TIMES MORE PEOPLE THAN OTHERS, WHILE
SENATORIAL DISTRICTS COULD BE 32 TIMES LARGER THAN OTHERS.  MARYLAND
COMMITTEE FOR FAIR REPRESENTATION V. TAWES, 377 U.S. 656 (1964).  THE
LIST MAY EASILY BE EXPANDED TO INCLUDE OTHER STATES, AND CONNECTICUT IS
NO EXCEPTION.  IN 1964, THE CONNECTICUT TOWNS OF HARTFORD AND UNION HAD
THE SAME REPRESENTATION IN THE HOUSE, BUT UNION HAD A POPULATION OF 383
PEOPLE, WHILE HARTFORD HAD A POPULATION OF 162,178.  A VOTE IN UNION
WAS THUS WEIGHTED ABOUT 425 TIMES MORE HEAVILY THAN A VOTE IN
HARTFORD.  AT THAT TIME, IT WOULD HAVE TAKEN ONLY 11.9% OF
CONNECTICUT'S POPULATION TO ELECT A MAJORITY OF ITS HOUSE, AND ONLY 31%
TO ELECT A SENATE MAJORITY.  SEE BUTTERWORTH V. DEMPSEY, 229 F. SUPP.
754 (CONN.), AFF'D, 378 U.S. 564 (1964). 

/10/  SEE, E. G., H. ALTERMAN, COUNTING PEOPLE:  THE CENSUS IN
HISTORY 262 (1969): 

"A CENSUS, BY ITS NATURE, CAN NEVER BE AN EXACT COUNT OF A NATION. 
THIS IS ESPECIALLY TRUE OF THE UNITED STATES . . . THUS, AN ERROR OF 1
OR 2 PERCENT IN THE COUNT OF THE TOTAL POPULATION IS TO BE EXPECTED;
PROFESSIONALLY, IT IS REGARDED AS AN 'ACCEPTABLE' ERROR." 

THE CENSUS BUREAU ESTIMATES THAT THE 1970 CENSUS HAD AN
UNDERCOVERAGE RATE OF 2.5%, OR ABOUT 5,300,000 PEOPLE.  ADDRESS OF J.
S. SIEGEL, POPULATION ASSOCIATION OF AMERICA ANNUAL MEETING,IN NEW
ORLEANS, LA., APR. 26, 1973.  SEE N. Y. TIMES, APR. 26, 1973, P. 1,
COL. 1. 

INEXACTNESS OF CENSUS DATA IS MOST EVIDENT WITH RESPECT TO
MINORITIES.  IT IS ESTIMATED, FOR EXAMPLE, THAT NEGROES WERE
UNDERENUMERATED IN THE 1970 CENSUS BY 7.7%, AS COMPARED TO AN ESTIMATED
1.9% UNDERCOUNT FOR WHITE PERSONS.  IBID.  SEE ALSO SIEGEL,
COMPLETENESS OF COVERAGE OF THE NONWHITE POPULATION IN THE 1960 CENSUS
AND CURRENT ESTIMATES, AND SOME IMPLICATIONS, IN SOCIAL STATISTICS AND
THE CITY 13 (D. HEER ED. 1968). 

/11/  SEE, E. G., M. SPIEGELMAN, INTRODUCTION TO DEMOGRAPHY 415 -
416 (1968); U. S. BUREAU OF THE CENSUS, 2 THE MATERIALS AND METHODS OF
DEMOGRAPHY 806 (1971). 

IN CONNECTICUT, FOR EXAMPLE, THE POPULATION OF THE STATE AS A WHOLE
GREW BY 19.6% DURING THE 1960'S.  BUT THE POPULATION IN THE AREA
COMPRISING THE SECOND CONGRESSIONAL DISTRICT GREW BY OVER 28%, WHILE
THE POPULATION IN THE FOURTH DISTRICT GREW BY ONLY 11.2%.  THE U.S.
BUREAU OF THE CENSUS, CONGRESSIONAL DISTRICT DATA BOOK, 93D CONGRESS,
CONNECTICUT 7 (1972). 

/12/  SEE BURNS V. RICHARDSON, 384 U.S. 73, 91 - 92 (1966): "WE
START WITH THE PROPOSITION THAT THE EQUAL PROTECTION CLAUSE DOES NOT
REQUIRE THE STATES TO USE TOTAL POPULATION FIGURES DERIVED FROM THE
FEDERAL CENSUS AS STANDARD BY WHICH SUBSTANTIAL POPULATION EQUIVALENCY
IS TO BE MEASURED.  . .  NEITHER IN REYNOLDS V. SIMS NOR IN ANY OTHER
DECISION HAS THIS COURT SUGGESTED THAT THE STATES ARE REQUIRED TO
INCLUDE ALIENS, TRANSIENTS, SHORT-TERM OR TEMPORARY RESIDENTS, OR
PERSONS DENIED THE VOTE FOR CONVICTION OF CRIME, IN THE APPORTIONMENT
BASE BY WHICH THEIR LEGISLATORS ARE DISTRIBUTED AND AGAINST WHICH
COMPLIANCE WITH THE EQUAL PROTECTION CLAUSE IS TO BE MEASURED.  THE
DECISION TO INCLUDE OR EXCLUDE ANY SUCH GROUP INVOLVES CHOICES ABOUT
THE NATURE OF REPRESENTATION WITH WHICH WE HAVE BEEN SHOWN NO
CONSTITUTIONALLY FOUNDED REASON TO INTERFERE.  UNLESS A CHOICE IS ONE
THE CONSTITUTION FORBIDS, CF., E. G., CARRINGTON V. RASH, 380 U.S. 89,
THE RESULTING APPORTIONMENT BASE OFFENDS NO CONSTITUTIONAL BAR, AND
COMPLIANCE WITH THE RULE ESTABLISHED IN REYNOLDS V. SIMS IS TO BE
MEASURED THEREBY." 

/13/  UTAH, RHODE ISLAND, NEW HAMPSHIRE, AND MISSOURI HAVE ONLY 1%
VARIATIONS.  NEW YORK HAS A 29% VARIATION IN AGE-ELIGIBLE VOTERS AMONG
ITS CONGRESSIONAL DISTRICTS, WHILE CALIFORNIA HAS A 25% AND ILLINOIS A
20% VARIATION.  THESE FIGURES MAY BE COMPUTED FROM THE BUREAU OF THE
CENSUS' CONGRESSIONAL DISTRICT DATA, 93D CONGRESS, FOR THE RESPECTIVE
STATES. 

/14/  AGAIN USING CONNECTICUT CONGRESSIONAL DISTRICTS AS AN EXAMPLE,
IN THE NOVEMBER 1972 ELECTIONS, THE PERCENTAGE OF REGISTERED VOTERS WHO
ACTUALLY VOTED VARIED BY A MAXIMUM OF 2.8%.  SEE STATEMENT OF VOTE,
GENERAL ELECTION NOV. 7, 1972, STATE OF CONN. PUB. DOC. NO. 26, P. 72
(1973).  THE PERCENTAGES OF REGISTERED VOTERS WHO VOTED VA IED BY AS
MUCH AS ABOUT 23% AMONG THE TOWNS IN THE STATE.  ID., AT 65 - 71. 

/15/  FOR DISCUSSIONS OF THE VAST AND GROWING LITERATURE IN THIS
AREA, SEE REAPPORTIONMENT IN THE 1970S (N. POLSBY ED. 1971). 

/16/  AMONG THE SENATE DISTRICTS (OF ABOUT 84,000 PEOPLE EACH), THE
AVERAGE DEVIATION INVOLVES ONLY ABOUT 400 PEOPLE AND THE MAXIMUM
DEVIATION ONLY 1,532 PEOPLE. 

/17/  REPLY BRIEF FOR APPELLANT 19.  APPARENTLY, MORE REFINED CENSUS
DATA WERE AVAILABLE TO THE MASTER IN PREPARING THIS LATER PLAN. 

/18/  APPELLEES ALSO MAINTAIN THAT THE SHAPES OF THE DISTRICTS WOULD
NOT HAVE BEEN SO "INDECENT" HAD THE BOARD NOT ATTEMPTED TO "WIGGLE AND
JOGGLE" BOUNDARY LINES TO FERRET OUT POCKETS OF EACH PARTY'S STRENGTH. 
THAT MAY WELL BE TRUE, ALTHOUGH ANY PLAN THAT ATTEMPTS TO FOLLOW
CONNECTICUT'S "ODDLY SHAPED" TOWN LINES (APP. 98) IS BOUND TO CONTAIN
SOME IRREGULARLY SHAPED DISTRICTS.  BUT COMPACTNESS OR ATTRACTIVENESS
HAS NEVER BEEN HELD TO CONSTITUTE AN INDEPENDENT FEDERAL CONSTITUTIONAL
REQUIREMENT FOR STATE LEGISLATIVE DISTRICTS.  CF. WHITE V. WEISER,
POST, P. 783; WRIGHT V. ROCKEFELLER, 376 U.S. 52, 54 (1964), AND ID.,
AT 59 - 61 (DOUGLAS, J., DISSENTING). 

(FOR DISSENTING OPINION OF MR. JUSTICE BRENNAN, SEE POST, P. 772.) 

ROBERT G. DIXON, JR., ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON
THE BRIEFS WERE HARRY W. HULTGREN, JR., FRANCIS J. MCCARTHY, AND GORDON
W. HATHEWAY, JR. 

ROBERT A. SATTER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS JAMES A. WADE. 
..END :





















WHITE V. REGESTER, 412 U.S. 755 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

           DISTRICT OF TEXAS 

     NO. 72 - 147.  ARGUED FEBRUARY 26, 1973--DECIDED JUNE 18,
1973;

343 F. SUPP. 704, AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED. 


    IN THIS LITIGATION CHALLENGING THE TEXAS 1970 LEGISLATIVE

  REAPPORTIONMENT SCHEME, A THREE-JUDGE DISTRICT COURT HELD THAT

  THE HOUSE PLAN, STATEWIDE, CONTAINED CONSTITUTIONALLY

  IMPERMISSIBLE DEVIATIONS FROM POPULATION EQUALITY AND THAT THE

  MILTIMEMBER DISTRICTS PROVIDED FOR BEXAR AND DALLAS COUNTIES

  INVIDIOUSLY DISCRIMINATED AGAINST COGNIZABLE RACIAL OR ETHNIC

  GROUPS.  THOUGH THE ENTIRE PLAN WAS DECLARED INVALID, THE COURT

  PERMITTED ITS USE FOR THE 1972 ELECTION EXCEPT FOR ITS INJUNCTION

  ORDER REQUIRING THOSE TWO COUNTY MULTIMEMBER DISTRICTS TO BE

  RECONSTITUTED INTO SINGLE-MEMBER DISTRICTS.  HELD: 

     1.  THIS COURT HAS JURISDICTION UNDER 28 U.S.C. ^ 1253 TO

  CONSIDER THE APPEAL FROM THE INJUNCTION ORDER APPLICABLE TO THE

BEXAR COUNTY AND DALLAS COUNTY DISTRICTING, SINCE THE THREE-JUDGE

  COURT HAD BEEN PROPERLY CONVENED, AND THIS COURT CAN REVIEW THE

  DECLARATORY PART OF THE JUDGMENT BELOW.  ROE V. WADE, 410 U.S.

  113.  PP. 759 - 761. 

     2.  STATE REAPPORTIONMENT STATUTES ARE NOT SUBJECT TO THE

  STRICTER STANDARDS APPLICABLE TO CONGRESSIONAL REAPPORTIONMENT

  UNDER ART. 1, ^ 2, AND THE DISTRICT COURT ERRED IN CONCLUDING

  THAT THIS CASE, WHERE THE TOTAL MAXIMUM VARIATION BETWEEN HOUSE

  DISTRICTS WAS 9.9%, BUT THE AVERAGE DEVIATION FROM THE IDEAL WAS

  1.82%, INVOLVED INVIDIOUS DISCRIMINATION IN VIOLATION OF THE

  EQUAL PROTECTION CLAUSE.  CF. GAFFNEY V. CUMMINGS, ANTE, P. 735. 

  PP. 761 - 764. 

    3.  THE DISTRICT COURT'S ORDER REQUIRING DISESTABLISHMENT OF

  THE MULTIMEMBER DISTRICTS IN DALLAS AND BEXAR COUNTIES WAS

  WARRANTED IN THE LIGHT OF THE HISTORY OF POLITICAL DISCRIMINATION

  AGAINST NEGROES AND MEXICAN-AMERICANS RESIDING, RESPECTIVELY, IN

  THOSE COUNTIES AND THE RESIDUAL EFFECTS OF SUCH DISCRIMINATION

  UPON THOSE GROUPS.  PP. 765 - 770. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN PARTS I, III, AND
IV OF WHICH ALL MEMBERS JOINED, AND IN PART II OF WHICH BURGER, C. J.,
AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BRENNAN,
J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, IN
WHICH DOUGLAS AND MARSHALL, JJ., JOINED, POST, P, 772. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES TWO QUESTIONS CONCERNING THE VALIDITY OF THE
REAPPORTIONMENT PLAN FOR THE TEXAS HOUSE OF REPRESENTATIVES ADOPTED IN
1970 BY THE STATE LEGISLATIVE REDISTRICTING BOARD:  FIRST, WHETHER
THERE WERE UNCONSTITUTIONALLY LARGE VARIATIONS IN POPULATION AMONG THE
DISTRICTS DEFINED BY THE PLAN; SECOND, WHETHER THE MULTIMEMBER
DISTRICTS PROVIDED FOR BEXAR AND DALLAS COUNTIES WERE PROPERLY FOUND TO
HAVE BEEN INVIDIOUSLY DISCRIMINATORY AGAINST COGNIZABLE RACIAL OR
ETHNIC GROUPS IN THOSE COUNTIES. 

THE TEXAS CONSTITUTION REQUIRES THE STATE LEGISLATURE TO REAPPORTION
THE HOUSE AND SENATE AT ITS FIRST REGULAR SESSION FOLLOWING THE
DECENNIAL CENSUS.  TEX. CONST., ART. III, ^ 28.  /1/  IN 1970, THE
LEGISLATURE PROCEEDED TO REAPPORTION THE HOUSE OF REPRESENTATIVES BUT
FAILED TO AGREE ON A REDISTRICTING PLAN FOR THE SENATE.  LITIGATION WAS
IMMEDIATELY COMMENCED IN STATE COURT CHALLENGING THE CONSTITUTIONALITY
OF THE HOUSE REAPPORTIONMENT.  THE TEXAS SUPREME COURT HELD THAT THE
LEGISLATURE'S PLAN FOR THE HOUSE VIOLATED THE TEXAS CONSTITUTION.  /2/
SMITH V. CRADDICK, 471 S. W. 2D 375 (1971).  MEANWHILE, PURSUANT TO THE
REQUIREMENTS OF THE TEXAS CONSTITUTION, A LEGISLATIVE REDISTRICTING
BOARD HAD BEEN FORMED TO BEGIN THE TASK OF REDISTRICTING THE TEXAS
SENATE.  ALTHOUGH THE BOARD INITIALLY CONFINED ITS WORK TO THE
REAPPORTIONMENT OF THE SENATE, IT WAS EVENTUALLY ORDERED, IN LIGHT OF
THE JUDICIAL INVALIDATION OF THE HOUSE PLAN, TO ALSO REAPPORTION THE
HOUSE.  MAUZY V. LEGISLATIVE REDISTRICTING BOARD, 471 S. W.2D 570
(1971). 

ON OCTOBER 15, 1971, THE REDISTRICTING BOARD'S PLAN FOR THE
REAPPORTIONMENT OF THE SENATE WAS RELEASED, AND, ON OCTOBER 22, 1971,
THE HOUSE PLAN WAS PROMULGATED.  ONLY THE HOUSE PLAN REMAINS AT ISSUE
IN THIS CASE.  THAT PLAN DIVIDED THE 150-MEMBER BODY AMOUNT 79 SINGLE
MEMBER AND 11 MULTIMEMBER DISTRICTS.  FOUR LAWSUITS, EVENTUALLY
CONSOLIDATED, WERE FILED CHALLENGING THE BOARD'S SENATE AND HOUSE PLANS
AND ASSERTING WITH RESPECT TO THE HOUSE PLAN THAT IT CONTAINED
IMPERMISSIBLE DEVIATIONS FROM POPULATION EQUALITY AND THAT ITS
MULTIMEMBER DISTRICTS FOR BEXAR COUNTY AND DALLAS COUNTY OPERATED TO
DILUTE THE VOTING STRENGTH OF RACIAL AND ETHNIC MINORITIES. 

A THREE-JUDGE DISTRICT COURT SUSTAINED THE SENATE PLAN, BUT FOUND
THE HOUSE PLAN UNCONSTITUTIONAL.  GRAVES V. BARNES, 343 F. SUPP. 704
(WD TEX. 1972).  THE HOUSE PLAN WAS HELD TO CONTAIN CONSTITUTIONALLY
IMPERMISSIBLE DEVIATIONS FROM POPULATION EQUALITY, AND THE MULTIMEMBER
DISTRICTS IN BEXAR AND DALLAS COUNTIES WERE DEEMED CONSTITUTIONALLY
INVALID.  THE DISTRICT COURT GAVE THE TEXAS LEGISLATURE UNTIL JULY 1,
1973, TO REAPPORTION THE HOUSE, BUT THE DISTRICT COURT PERMITTED THE
BOARD'S PLAN TO BE USED FOR PURPOSES OF THE 1972 ELECTION, EXCEPT FOR
REQUIRING THAT THE DALLAS COUNTY AND BEXAR COUNTY MULTIMEMBER DISTRICTS
BE RECONSTITUTED INTO SINGLE-MEMBER DISTRICTS FOR THE 1972 ELECTION. 

APPLELLANTS APPEALED THE STATEWIDE INVALIDATION OF THE HOUSE PLAN
AND THE SUBSTITUTION OF SINGLE-MEMBER FOR MULTIMEMBER DISTRICTS IN
DALLAS COUNTY AND BEXAR COUNTY.  /3/  MR. JUSTICE POWELL DENIED A STAY
OF THE JUDGMENT OF THE DISTRICT COURT, 405 U.S. 1201, AND WE NOTED
PROBABLE JURISDICTION SUB NOM. BULLOCK V. REGESTER, 409 U.S. 840. 

        I 

WE DEAL AT THE OUTSET WITH THE CHALLENGE TO OUR JURISDICTION OVER
THIS APPEAL UNDER 28 U.S.C. ^ 1253, WHICH PERMITS INJUNCTIONS IN SUITS
REQUIRED TO BE HEARD AND DETERMINED BY A THREE-JUDGE DISTRICT COURT TO
BE APPEALED DIRECTLY TO THIS COURT.  /4/  IT IS FIRST SUGGESTED THAT
THE CASE WAS NOT ONE REQUIRED TO BE HEARD BY A THREE-JUDGE COURT.  THE
CONTENTION IS FRIVOLOUS.  A STATEWIDE REAPPORTIONMENT STATUTE WAS
CHALLENGED AND INJUNCTIONS WERE ASKED AGAINST ITS ENFORCEMENT.  THE
CONSTITUTIONAL QUESTIONS RAISED WERE NOT INSUBSTANTIAL ON THEIR FACE,
AND THE COMPLAINT CLEARLY CALLED FOR THE CONVENING OF A THREE-JUDGE
COURT.  THAT THE COURT DECLARED THE ENTIRE APPORTIONMENT PLAN INVALID,
BUT ENTERED AN INJUNCTION ONLY WITH RESPECT TO ITS IMPLEMENTATION FOR
THE 1972 ELECTIONS IN DALLAS AND BEXAR COUNTIES, IN NO WAY INDICATES
THAT THE CASE REQUIRED ONLY A SINGLE JUDGE.  APPELLANTS ARE THEREFORE
PROPERLY HERE ON DIRECT APPEAL WITH RESPECT TO THE INJUNCTION DEALING
WITH BEXAR AND DALLAS COUNTIES, FOR THE ORDER OF THE COURT DIRECTED AT
THOSE COUNTIES WAS LITERALLY AN ORDER "GRANTING ... AN ... INJUNCTION
IN ANY CIVIL ACTION ... REQUIRED ... TO BE HEARD AND DETERMINED BY A
DISTRICT COURT OF THREE JUDGES"  WITHIN THE MEANING OF ^ 1253. 

WE ALSO HOLD THAT APPELLANTS, BECAUSE THEY APPEALED FROM THE ENTRY
OF AN INJUNCTION, ARE ENTITLED TO REVIEW OF THE DISTRICT COURT'S
ACCOMPANYING DECLARATION THAT THE PROPOSED PLAN FOR THE TEXAS HOUSE OF
REPRESENTATIVES, INCLUDING THOSE PORTIONS PROVIDING FOR MULTIMEMBER
DISTRICTS IN DALLAS AND BEXAR COUNTIES, WAS INVALID STATEWIDE.  THIS
DECLARATION WAS THE PREDICATE FOR THE COURT'S ORDER REQUIRING DALLAS
AND BEXAR COUNTIES TO BE REAPPORTIONED INTO SINGLE DISTRICTS; FOR ITS
ORDER THAT "UNLESS THE LEGISLATURE OF THE STATE OF TEXAS ON OR BEFORE
JULY 1, 1973, HAS ADOPTED A PLAN TO REAPPORTION THE LEGISLATIVE
DISTRICTS WITHIN THE STATE IN ACCORDANCE WITH THE CONSTITUTIONAL
GUIDELINES SET OUT IN THIS OPINION THIS COURT WILL SO REAPPORTION THE
STATE OF TEXAS"; AND FOR ITS ORDER THAT THE SECRETARY OF STATE "ADOPT
AND IMPLEMENT ANY AND ALL PROCEDURES NECESSARY TO PROPERLY EFFECTUATE
THE ORDERS OF THIS COURT IN CONFORMANCE WITH THIS OPINION . . ."  343
F. SUPP., AT 737.  IN THESE CIRCUMSTANCES, ALTHOUGH APPELLANTS COULD
NOT HAVE DIRECTLY APPEALED TO THIS COURT THE ENTRY OF A DECLARATORY
JUDGMENT UNACCOMPANIED BY ANY INJUNCTIVE RELIEF, GUNN V. UNIVERSITY
COMMITTEE, 399 U.S. 383 (1970); MITCHELL V. DONOVAN, 398 U.S. 427
(1970), WE CONCLUDE THAT WE HAVE JURISDICTION OF THE ENTIRE APPEAL. 
ROE V. WADE, 410 U.S. 113 (1973); FLORIDA LIME & AVOCADO GROWERS V.
JACOBSEN, 362 U.S. 73 (1960).  WITH THE TEXAS REAPPORTIONMENT PLAN
BEFORE IT, IT WAS IN THE INTEREST OF JUDICIAL ECONOMY AND THE AVOIDANCE
OF PIECEMEAL LITIGATION THAT THE THREE-JUDGE DISTRICT COURT HAVE
JURISDICTION OVER ALL CLAIMS RAISED AGAINST THE STATUTE WHEN A
SUBSTANTIAL CONSTITUTIONAL CLAIM WAS ALLEGED, AND AN APPEAL TO US, ONCE
PROPERLY HERE, HAS THE SAME REACH.  ROE V. WADE, SUPRA, AT 123; CARTER
V. JURY COMM'N, 396 U.S. 320 (1970); FLORIDA LIME & AVOCADO GROWERS V.
JACOBSEN, SUPRA, AT 80. 

        II 

THE REAPPORTIONMENT PLAN FOR THE TEXAS HOUSE OF REPRESENTATIVES
PROVIDES FOR 150 REPRESENTATIVES TO BE SELECTED FROM 79 SINGLE-MEMBER
AND 11 MULTIMEMBER DISTRICTS.  THE IDEAL DISTRICT IS 74,645 PERSONS. 
THE DISTRICTS RANGE FROM 71,597 TO 78,943 IN POPULATION PER
REPRESENTATIVE, OR FROM 5.8% OVERREPRESENTATION TO 4.1%
UNDERREPRESENTATION.  THE TOTAL VARIATION BETWEEN THE LARGEST AND
SMALLEST DISTRICT IS THUS 9.9%.  /5/ 

THE DISTRICT COURT READ OUR PRIOR CASES TO REQUIRE ANY DEVIATIONS
FROM EQUAL POPULATION AMONG DISTRICTS TO BE JUSTIFIED BY "ACCEPTABLE
REASONS" GROUNDED IN STATE POLICY; RELIEF ON KIRKPATRICK V. PREISLER,
394 U.S. 526 (1969), TO CONCLUDE THAT THE PERMISSIBLE TOLERANCES
SUGGESTED BY REYNOLDS V. SIMS, 377 U.S. 533 (1964), HAD BEEN
SUBSTANTIALLY ERODED; SUGGESTED THAT ABATE V. MUNDT, 403 U.S. 182
(1971), IN ACCEPTING TOTAL DEVIATIONS OF 11.9% IN A COUNTY
REAPPORTIONMENT WAS SUI GENERIS; AND CONSIDERED THE "CRITICAL ISSUE"
BEFORE IT TO BE WHETHER "THE STATE (HAS) JUSTIFIED ANY AND ALL
VARIANCES, HOWEVER SMALL, ON THE BASIS OF A CONSISTENT, RATIONAL STATE
POLICY."  343 F. SUPP., AT 713.  NOTING THE SINGLE FACT THAT THE TOTAL
DEVIATION FROM THE IDEAL BETWEEN DISTRICT 3 AND DISTRICT 85 WAS 9.9%,
THE DISTRICT COURT CONCLUDED THAT JUSTIFICATION BY APPELLANTS WAS
CALLED FOR AND COULD DISCOVER NO ACCEPTABLE STATE POLICY TO SUPPORT THE
DEVIATIONS.  THE DISTRICT COURT WAS ALSO CRITICAL OF THE ACTIONS AND
PROCEDURES OF THE LEGISLATIVE REAPPORTIONMENT BOARD AND DOUBTED "THAT
(THE) BOARD DID THE SORT OF DELIBERATIVE JOB . . . WORTHY OF JUDICIAL
ABSTINENCE."  ID., AT 717.  IT ALSO CONSIDERED THE COMBINATION OF
SINGLE-MEMBER AND MULTIMEMBER DISTRICTS IN THE HOUSE PLAN "HAPHAZARD,"
PARTICULARLY IN PROVIDING SINGLE-MEMBER DISTRICTS IN HOUSTON AND
MULTIMEMBER DISTRICTS IN OTHER METROPOLITAN AREAS, AND THAT THIS
"IRRATIONALITY, WITHOUT REASONED JUSTIFICATION, MAY BE A SEPARATE AND
DISTINCT GROUND FOR DECLARING THE PLAN UNCONSTITUTIONAL."  /6/  IBID.
FINALLY, THE COURT SPECIFICALLY INVALIDATED THE USE OF MULTIMEMBER
DISTRICTS IN DALLAS AND BEXAR COUNTIES AS UNCONSTITUTIONALLY
DISCRIMINATORY AGAINST A RACIAL OR ETHNIC GROUP. 

THE DISTRICT COURT'S ULTIMATE CONCLUSION WAS THAT "THE APPORTIONMENT
PLAN FOR THE STATE OF TEXAS IS UNCONSTITUTIONAL AS UNJUSTIFIABLY REMOTE
FROM THE IDEAL OF 'ONE MAN, ONE VOTE,' AND THAT THE MULTI-MEMBER
DISTRICTING SCHEMES FOR THE HOUSE OF REPRESENTATIVES AS THEY RELATE
SPECIFICALLY TO DALLAS AND TO BEXAR COUNTIES ARE UNCONSTITUTIONAL IN
THAT THEY DILUTE THE VOTES OF RACIAL MINORITIES."  ID., AT 735.  /7/ 

INSOFAR AS THE DISTRICT COURT'S JUDGMENT RESTED ON THE CONCLUSION
THAT THE POPULATION DIFFERENTIAL OF 9.9% FROM THE IDEAL DISTRICT
BETWEEN DISTRICT 3 AND DISTRICT 85 MADE OUT A PRIMA FACIE EQUAL
PROTECTION VIOLATION UNDER THE FOURTEENTH AMENDMENT, ABSENT SPECIAL
JUSTIFICATION, THE COURT WAS IN ERROR.  IT IS PLAIN FROM MAHAN V.
HOWELL, 410 U.S. 315 (1973), AND GAFFNEY V. CUMMINGS, ANTE, P. 735,
THAT STATE REAPPORTIONMENT STATUTES ARE NOT SUBJECT TO THE SAME STRICT
STANDARDS APPLICABLE TO REAPPORTIONMENT OF CONGRESSIONAL SEATS. 
KIRKPATRICK V. PREISLER DID NOT DILUTE THE TOLERANCES CONTEMPLATED BY
REYNOLDS V. SIMS WITH RESPECT TO STATE DISTRICTING, AND WE DID NOT HOLD
IN SWANN V. ADAMS, 385 U.S. 440 (1967), OR KILGARLIN V. HILL, 386 U.S.
120 (1967), OR LATER IN MAHAN V. HOWELL, SUPRA, THAT ANY DEVIATIONS
FROM ABSOLUTE EQUALITY, HOWEVER SMALL, MUST BE JUSTIFIED TO THE
SATISFACTION OF THE JUDICIARY TO AVOID INVALIDATION UNDER THE EQUAL
PROTECTION CLAUSE.  FOR THE REASONS SET OUT IN GAFFNEY V. CUMMINGS,
SUPRA, WE DO NOT CONSIDER RELATIVELY MINOR POPULATION DEVIATIONS AMONG
STATE LEGISLATIVE DISTRICTS TO SUBSTANTIALLY DILUTE THE WEIGHT OF
INDIVIDUAL VOTES IN THE LARGER DISTRICTS SO AS TO DEPRIVE INDIVIDUALS
IN THESE DISTRICTS OF FAIR AND EFFECTIVE REPRESENTATION.  THOSE REASONS
ARE AS APPLICABLE TO TEXAS AS THEY ARE TO CONNECTICUT; AND WE CANNOT
GLEAN AN EQUAL PROTECTION VIOLATION FROM THE SINGLE FACT THAT TWO
LEGISLATIVE DISTRICTS IN TEXAS DIFFER FROM ONE ANOTHER BY AS MUCH AS
9.9%, WHEN COMPARED TO THE IDEAL DISTRICT.  VERY LIKELY, LARGER
DIFFERENCES BETWEEN DISTRICTS WOULD NOT BE TOLERABLE WITHOUT
JUSTIFICATION "BASED ON LEGITIMATE CONSIDERATIONS INCIDENT TO THE
EFFECTUATION OF A RATIONAL STATE POLICY," REYNOLDS V. SIMS, 377 U.S.,
AT 579; MAHAN V. HOWELL, SUPRA, AT 325, BUT HERE WE ARE CONFIDENT THAT
APPELLEES FAILED TO CARRY THEIR BURDEN OF PROOF INSOFAR AS THEY SOUGHT
TO ESTABLISH A VIOLATION OF THE EQUAL PROTECTION CLAUSE FROM POPULATION
VARIATIONS ALONE.  THE TOTAL VARIATION BETWEEN TWO DISTRICTS WAS 9.9%,
BUT THE AVERAGE DEVIATION OF ALL HOUSE DISTRICTS FROM THE IDEAL WAS
1.82%. ONLY 23 DISTRICTS, ALL SINGLE-MEMBER, WERE OVERREPRESENTED OR
UNDERREPRESENTED BY MORE THAN 3%, AND ONLY THREE OF THOSE DISTRICTS BY
MORE THAN 5%.  WE ARE UNABLE TO CONCLUDE FROM THESE DEVIATIONS ALONE
THAT APPELLEES SATISFIED THE THRESHOLD REQUIREMENT OF PROVING A PRIMA
FACIE CASE OF INVIDIOUS DISCRIMINATION UNDER THE EQUAL PROTECTION
CLAUSE.  BECAUSE THE DISTRICT COURT HAD A CONTRARY VIEW, ITS JUDGMENT
MUST BE REVERSED IN THIS RESPECT.  /8/

        III 

WE AFFIRM THE DISTRICT COURT'S JUDGMENT, HOWEVER, INSOFAR AS IT
INVALIDATED THE MULTIMEMBER DISTRICTS IN DALLAS AND BEXAR COUNTIES AND
ORDERED THOSE DISTRICTS TO BE REDRAWN INTO SINGLE-MEMBER DISTRICTS. 
PLAINLY, UNDER OUR CASES, MULTIMEMBER DISTRICTS ARE NOT PER SE
UNCONSTITUTIONAL, NOR ARE THEY NECESSARILY UNCONSTITUTIONAL WHEN USED
IN COMBINATION WITH SINGLE-MEMBER DISTRICTS IN OTHER PARTS OF THE
STATE.  WHITCOMB V. CHAVIS, 403 U.S. 124 (1971); MAHAN V. HOWELL,
SUPRA; SEE BURNS V. RICHARDSON, 384 U.S. 73 (1966); FORTSON V. DORSEY,
379 U.S. 433 (1965); LUCAS V. COLORADO GENERAL ASSEMBLY, 377 U.S. 713
(1964); REYNOLDS V. SIMS, SUPRA.  /9/  BUT WE HAVE ENTERTAINED CLAIMS
THAT MULTIMEMBER DISTRICTS ARE BEING USED INVIDIOUSLY TO CANCEL OUT OR
MINIMIZE THE VOTING STRENGTH OF RACIAL GROUPS.  SEE WHITCOMB V. CHAVIS,
SUPRA; BURNS V. RICHARDSON, SUPRA; FORTSON V. DORSEY, SUPRA.  TO
SUSTAIN SUCH CLAIMS, IT IS NOT ENOUGH THAT THE RACIAL GROUP ALLEGEDLY
DISCRIMINATED AGAINST HAS NOT HAD LEGISLATIVE SEATS IN PROPORTION TO
ITS VOTING POTENTIAL.  THE PLANTIFFS' BURDEN IS TO PRODUCE EVIDENCE TO
SUPPORT FINDINGS THAT THE POLITICAL PROCESSES LEADING TO NOMINATION AND
ELECTION WERE NOT EQUALLY OPEN TO PARTICIPATION BY THE GROUP IN
QUESTION -- THAT ITS MEMBERS HAD LESS OPPORTUNITY THAN DID OTHER
RESIDENTS IN THE DISTRICT TO PARTICIPATE IN THE POLITICAL PROCESSES AND
TO ELECT LEGISLATORS OF THEIR CHOICE.  WHITCOMB V. CHAVIS, SUPRA, AT
149 - 150.     WITH DUE REGARD FOR THESE STANDARDS, THE DISTRICT COURT
FIRST REFERRED TO THE HISTORY OF OFFICIAL RACIAL DISCRIMINATION IN
TEXAS, WHICH AT TIMES TOUCHED THE RIGHT OF NEGROES TO REGISTER AND VOTE
AND TO PARTICIPATE IN THE DEMOCRATIC PROCESSES.  343 F. SUPP., AT 725. 
IT REFERRED ALSO TO THE TEXAS RULE REQUIRING A MAJORITY VOTE AS A
PREREQUISITE TO NOMINATION IN A PRIMARY ELECTION AND TO THE SO-CALLED
"PLACE" RULE LIMITING CANDIDACY FOR LEGISLATIVE OFFICE FROM A
MULTIMEMBER DISTRICT TO A SPECIFIED "PLACE" ON THE TICKET, WITH THE
RESULT BEING THE ELECTION OF REPRESENTATIVES FROM THE DALLAS
MULTIMEMBER DISTRICT REDUCED TO A HEAD-TO-HEAD CONTEST FOR EACH
POSITION.  THESE CHARACTERISTICS OF THE TEXAS ELECTROAL SYSTEM, NEITHER
IN THEMSELVES IMPROPER NOR INVIDIOUS, ENHANCED THE OPPORTUNITY FOR
RACIAL DISCRIMINATION, THE DISTRICT COURT THOUGHT.  /10/  MORE
FUNDAMENTALLY, IT FOUND THAT SINCE RECONSTRUCTION DAYS, THERE HAVE BEEN
ONLY TWO NEGROES IN THE DALLAS COUNTY DELEGATION TO THE TEXAS HOUSE OF
REPRESENTATIVES AND THAT THESE TWO WERE THE ONLY TWO NEGROES EVER
SLATED BY THE DALLAS COMMITTEE FOR RESPONSIBLE GOVERNMENT (DCRG), A
WHITE-DOMINATED ORGANIZATION THAT IS IN EFFECTIVE CONTROL OF DEMOCRATIC
PARTY CANDIDATE SLATING IN DALLAS COUNTY.  /11/  THAT ORGANIZATION, THE
DISTRICT COURT FOUND, DID NOT NEED THE SUPPORT OF THE NEGRO COMMUNITY
TO WIN ELECTIONS IN THE COUNTY, AND IT DID NOT THEREFORE EXHIBIT GOOD
FAITH CONCERN FOR THE POLITICAL AND OTHER NEEDS AND ASPIRATIONS OF THE
NEGRO COMMUNITY.  THE COURT FOUND THAT AS RECENTLY AS 1970 THE DCRG WAS
RELYING UPON "RACIAL CAMPAIGN TACTICS IN WHITE PRECINCTS TO DEFEAT
CANDIDATES WHO HAD THE OVERWHELMING SUPPORT OF THE BLACK COMMUNITY." 
ID., AT 727.  BASED ON THE EVIDENCE BEFORE IT, THE DISTRICT COURT
CONCLUDED THAT "THE BLACK COMMUNITY HAS BEEN EFFECTIVELY EXCLUDED FROM
PARTICIPATION IN THE DEMOCRATIC PRIMARY SELECTION PROCESS," ID., AT
726, AND WAS THEREFORE GENERALLY NOT PERMITTED TO ENTER INTO THE
POLITICAL PROCESS IN A RELIABLE AND MEANINGFUL MANNER.  THESE FINDINGS
AND CONCLUSIONS ARE SUFFICIENT TO SUSTAIN THE DISTRICT COURT'S JUDGMENT
WITH RESPECT TO THE DALLAS MULTIMEMBER DISTRICT AND, ON THIS RECORD, WE
HAVE NO REASON TO DISTURB THEM. 

        IV 

THE SAME IS TRUE OF THE ORDER REQUIRING DISESTABLISHMENT OF THE
MULTIMEMBER DISTRICT IN BEXAR COUNTY.  CONSISTENTLY WITH HERNANDEZ V.
TEXAS, 347 U.S. 475 (1954), THE DISTRICT COURT CONSIDERED THE MEXICAN
AMERICANS IN BEXAR COUNTY TO BE AN IDENTIFIABLE CLASS FOR FOURTEENTH
AMENDMENT PURPOSES AND PROCEEDED TO INQUIRE WHETHER THE IMPACT OF THE
MULTIMEMBER DISTRICT ON THIS GROUP CONSTITUTED IVIDIOUS
DISCRIMINATION.  SURVEYING THE HISTORIC AND PRESENT CONDITION OF THE
BEXAR COUNTY MEXICAN-AMERICAN COUMMUNITY, WHICH IS CONCENTRATED FOR THE
MOST PART ON THE WEST SIDE OF THE CITY OF SAN ANTONIO, THE COURT
OBSERVED, BASED UPON PRIOR CASES AND THE RECORD BEFORE IT, THAT THE
BEXAR COMMUNITY, ALONG WITH OTHER MEXICAN-AMERICANS IN TEXAS, /12/  HAD
LONG "SUFFERED FROM, AND CONTINUES TO SUFFER FROM, THE RESULTS AND
EFFECTS OF INVIDIOUS DISCRIMINATION AND TREATMENT IN THE FIELDS OF
EDUCATION, EMPLOYMENT, ECONOMICS, HEALTH, POLITICS AND OTHERS."  343 F.
SUPP., AT 728.  THE BULK OF THE MEXICAN-AMERCIAN COMMUNITY IN BEXAR
COUNTY OCCUPIED THE BARRIO, AN AREA CONSISTING OF ABOUT 28 CONTIGIOUS
CENSUS TRACTS IN THE CITY OF SAN ANTONIO.  OVER 78% OF BARRIO RESIDENTS
WERE MEXICAN-AMERICANS, MAKING UP 29% OF THE COUNTY'S TOTAL
POPULATION.  THE BARRIO IS AN AREA OF POOR HOUSING; ITS RESIDENTS HAVE
LOW INCOME AND A HIGH RATE OF UNEMPLOYMENT.  THE TYPICAL MEXICAN
AMERICAN SUFFERS A CULTURAL AND LANGUAGE BARRIER /13/  THAT MAKES HIS
PARTICIPATION IN COMMUNITY PROCESSES EXTREMELY DIFFICULT, PARTICULARLY,
THE COURT THOUGHT, WITH RESPECT TO THE POLITICAL LIFE OF BEXAR COUNTY. 
"(A) CULTURAL INCOMPATABILITY . . . CONJOINED WITH THE POLL TAX AND THE
MOST RESTRICTIVE VOTER REGISTRATION PROCEDURES IN THE NATION HAVE
OPERATED TO EFFECTIVELY DENY MEXICAN-AMERICANS ACCESS TO THE POLITICAL
PROCESSES IN TEXAS EVEN LONGER THAN THE BLACKS WERE FORMALLY DENIED
ACCESS BY THE WHITE PRIMARY."  343 F. SUPP., AT 731.  THE RESIDUAL
IMPACT OF THIS HISTORY REFLECTED ITSELF IN THE FACT THAT MEXICAN
AMERICAN VOTING REGISTRATION REMAINED VERY POOR IN THE COUNTY AND THAT
ONLY FIVE MEXICAN-AMERICANS SINCE 1880 HAVE SERVED IN THE TEXAS
LEGISLATURE FROM BEXAR COUNTY.  OF THESE, ONLY TWO WERE FROM THE BARRIO
AREA.  /14/  THE DISTRICT COURT ALSO CONCLUDED FROM THE EVIDENCE THAT
THE BEXAR COUNTY LEGISLATIVE DELEGATION IN THE HOUSE WAS INSUFFICIENTLY
RESPONSIVE TO MEXICAN-AMERICAN INTERESTS. 

BASED ON THE TOTALITY OF THE CIRCUMSTANCES, THE DISTRICT COURT
EVOLVED ITS ULTIMATE ASSESSMENT OF THE MULTIMEMBER DISTRICT, OVERLAID,
AS IT WAS, ON THE CULTURAL AND ECONOMIC REALITIES OF THE MEXICAN
AMERICAN COMMUNITY IN BEXAR COUNTY AND ITS RELATIONSHIP WITH THE REST
OF THE COUNTY.  ITS JUDGMENT WAS THAT BEXAR COUNTY MEXICAN-AMERICANS
"ARE EFFECTIVELY REMOVED FROM THE POLITICAL PROCESSES OF BEXAR (COUNTY)
IN VIOLATION OF ALL THE WHITCOMB STANDARDS, WHATEVER THEIR ABSOLUTE
NUMBERS MAY TOTAL IN THAT COUNTY."  ID., AT 733.  SINGLE-MEMBER
DISTRICTS WERE THOUGHT REQUIRED TO REMEDY "THE EFFECTS OF PAST AND
PRESENT DISCRIMINATION AGAINST MEXICAN-AMERICANS," IBID., AND TO BRING
THE COMMUNITY INTO THE FULL STREAM OF POLITICAL LIFE OF THE COUNTY AND
STATE BY ENCOURAGING THEIR FURTHER REGISTRATION, VOTING, AND OTHER
POLITICAL ACTIVITIES. 

THE DISTRICT COURT APPARENTLY PAID DUE HEED TO WHITCOMB V. CHAVIS,
SUPRA, DID NOT HOLD THAT EVERY RACIAL OR POLITICAL GROUP HAS A
CONSTITUTIONAL RIGHT TO BE REPRESENTED IN THE STATE LEGISLATURE, BUT
DID, FROM ITS OWN SPECIAL VANTAGE POINT, CONCLUDE THAT THE MULTIMEMBER
DISTRICT, AS DESIGNED AND OPERATED IN BEXAR COUNTY, INVIDIOUSLY
EXCLUDED MEXICAN-AMERICANS FROM EFFECTIVE PARTICIPATION IN POLITICAL
LIFE, SPECIFICALLY IN THE ELECTION OF REPRESENTATIVES TO THE TEXAS
HOUSE OF REPRESENTATIVES.  ON THE RECORD BEFORE US, WE ARE NOT INCLINED
TO OVERTURN THESE FINDINGS, REPRESENTING AS THEY DO A BLEND OF HISTORY
AND AN INTENSELY LOCAL APPRAISAL OF THE DESIGN AND IMPACT OF THE BEXAR
COUNTY MULTIMEMBER DISTRICT IN THE LIGHT OF PAST AND PRESENT REALITY,
POLITICAL AND OTHERWISE. 

              AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

/1/  ARTICLE III, ^ 28, OF THE TEXAS CONSTITUTION PROVIDES: 

"THE LEGISLATURE SHALL, AT ITS FIRST REGULAR SESSION AFTER THE
PUBLICATION OF EACH UNITED STATES DECENNIAL CENSUS, APPORTION THE STATE
INTO SENATORIAL AND REPRESENTATIVE DISTRICTS, AGREEABLE TO THE
PROVISIONS OF SECTIONS 25, 26 AND 26-A OF THIS ARTICLE.  IN THE EVENT
THE LEGISLATURE SHALL AT ANY SUCH FIRST REGULAR SESSION FOLLOWING THE
PUBLICATION OF A UNITED STATES DECENNIAL CENSUS, FAIL TO MAKE SUCH
APPORTIONMENT, SAME SHALL BE DONE BY THE LEGISLATURE REDISTRICTING
BOARD OF TEXAS, WHICH IS HEREBY CREATED, AND SHALL BE COMPOSED OF FIVE
(5) MEMBERS, AS FOLLOWS:  THE LIEUTENANT GOVERNOR, THE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, THE ATTORNEY GENERAL, THE COMPTROLLER OF
PUBLIC ACCOUNTS AND THE COMMISSIONER OF THE GENERAL LAND OFFICE, A
MAJORITY OF WHOM SHALL CONSTITUTE A QUORUM.  SAID BOARD SHALL ASSEMBLE
IN THE CITY OF AUSTIN WITHIN NINETY (90) DAYS AFTER THE FINAL
ADJORNMENT OF SUCH REGULAR SESSION.  THE BOARD SHALL, WITHIN SIXTY (60)
DAYS AFTER ASSEMBLING, APPORTION THE STATE INTO SENATORIAL AND
REPRESENTATIVE DISTRICTS, OR INTO SENATORIAL OR REPRESENTATIVE
DISTRICTS, AS THE FAILURE OF ACTION OF SUCH LEGISLATURE MAY MAKE
NECESSARY.  SUCH APPORTIONMENT SHALL BE IN WRITING AND SIGNED BY THREE
(3) OR MORE OF THE MEMBERS OF THE BOARD DULY ACKNOWLEDGED AS THE ACT
AND DEED OF SUCH BOARD, AND, WHEN SO EXECUTED AND FILED WITH THE
SECRETARY OF STATE, SHALL HAVE FORCE AND EFFECT OF LAW.  SUCH
APPORTIONMENT SHALL BECOME EFFECTIVE AT THE NEXT SUCCEEDING STATEWIDE
GENERAL ELECTION.  THE SUPREME COURT OF TEXAS SHALL HAVE JURISDICTION
TO COMPEL SUCH COMMISSION TO PERFORM ITS DUTIES IN ACCORDANCE WITH THE
PROVISIONS OF THIS SECTION BY WRIT OF MANDAMUS OR OTHER EXTRAORDINARY
WRITS CONFORMABLE TO THE USAGES OF LAW.  THE LEGISLATURE SHALL PROVIDE
NECESSARY FUNDS FOR CLERICAL AND TECHNICAL AID AND FOR OTHER EXPENSES
INCIDENTAL TO THE WORK OF THE BOARD, AND THE LIEUTENANT GOVERNOR AND
THE SPEAKER OF THE HOUSE OF REPRESENTATIVES SHALL BE ENTITLED TO
RECIEVE PER DIEM AND TRAVEL EXPENSE DURING THE BOARD'S SESSION IN THE
SAME MANNER AND AMOUNT AS THEY WOULD RECEIVE WHILE ATTENDING A SPECIAL
SESSION OF THE LEGISLATURE.  THIS AMENDMENT SHALL BECOME EFFECTIVE
JANUARY 1, 1951.  AS AMENDED NOV. 2.  1948." 

/2/  THE COURT HELD THAT THE PLAN VIOLATED ART. III, ^ 26, OF THE
TEXAS CONSTITUTION, WHICH PROVIDES: 

"THE MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL BE APPORTIONED
AMONG THE SEVERAL COUNTIES, ACCORDING TO THE NUMBER OF POPULATION IN
EACH, AS NEARLY AS MAY BE, ON A RATIO OBTAINED BY DIVIDING THE
POPULATION OF THE STATE, AS ASCERTAINED BY THE MOST RECENT UNITED
STATES CENSUS, BY THE NUMBER OF MEMBERS OF WHICH THE HOUSE IS COMPOSED;
PROVIDED, THAT WHENEVER A SINGLE COUNTY HAS SUFFICIENT POPULATION TO BE
ENTITLED TO A REPRESENTATIVE, SUCH COUNTY SHALL BE FORMED INTO A
SEPARATE REPRESENTATIVE DISTRICT, AND WHEN TWO OR MORE COUNTIES ARE
REQUIRED TO MAKE UP THE RATIO OF REPRESENTATION, SUCH COUNTIES SHALL BE
CONTIGUOUS TO EACH OTHER; AND WHEN ANY ONE COUNTY HAS MORE THAN
SUFFICIENT POPULATION TO BE ENTITLED TO ONE OR MORE REPRESENTATIVES,
SUCH REPRESENTATIVE OR REPRESENTATIVES SHALL BE APPORTIONED TO SUCH
COUNTY, AND FOR ANY SURPLUS OF POPULATION IT MAY BE JOINED IN A
REPRESENTATIVE DISTRICT WITH ANY OTHER CONTIGUOUS COUNTY OR COUNTIES." 

/3/  IN A SEPARATE APPEAL, WE SUMMARILY AFFIRMED THAT PORTION OF THE
JUDGMENT OF THE DISTRICT COURT UPHOLDING THE SENATE PLAN.  ARCHER V.
SMITH, 409 US. 808 (1972). 

/4/  TITLE 28 U.S.C. ^ 1253 PROVIDES: 

"EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO THE
SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION,
SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

/5/  SEE APPENDIX TO OPINION OF THE COURT, POST, P. 770.  (OMITTED) 

/6/  IT MAY BE, ALTHOUGH WE ARE NOT SURE, THAT THE DISTRICT COURT
WOULD HAVE INVALIDATED THE PLAN STATEWIDE BECAUSE OF WHAT IT THOUGHT
WAS AN IRRATIONAL MIXTURE OF MULTIMEMBER AND SINGLE-MEMBER DISTRICTS. 
THUS, IN QUESTIONING THE USE OF SINGLE-MEMBER DISTRICTS IN HOUSTON BUT
MULTIMEMBER DISTRICTS IN ALL OTHER URBAN AREAS, AND REMARKING THAT THE
STATE HAD PROVIDED NEITHER "COMPELLING" NOR "RATIONAL" EXPLANATION FOR
THE DIFFERING TREATMENT, THE DISTRICT COURT MERELY CONCLUDED THAT THIS
CLASSIFICATION "MAY BE" AN INDEPENDENT GROUND FOR INVALIDATING THE
PLAN.  BUT THERE ARE NO AUTHORITIES IN THIS COURT FOR THE PROPOSITION
THAT THE MERE MIXTURE OF MULTIMEMBER AND SINGLE-MEMBER DISTRICTS IN A
SINGLE PLAN, EVEN AMONG URBAN AREAS, IS INVIDIOUSLY DISCRIMINATORY, AND
WE CONSTRUE THE REMARKS NOT AS PART OF THE DISTRICT COURT'S DECLARATORY
JUDGMENT INVALIDATING THE STATE PLAN BUT AS MERE ADVANCE ADVICE TO THE
TEXAS LEGISLATURE AS TO WHAT WOULD OR WOULD NOT BE ACCEPTABLE TO THE
DISTRICT COURT. 

/7/  THE DISTRICT COURT ALSO CONCLUDED, CONTRARY TO THE ASSERTIONS
OF CERTAIN PLAINTIFFS, THAT THE SENATE DISTRICTING SCHEME FOR BEXAR
COUNTY DID NOT "UNCONSTITUTIONALLY DILUTE THE VOTES OF ANY POLITICAL
FACTION OR PARTY."  343 F. SUPP. 704, 735.  THE MAJORITY OF THE
DISTRICT COURT ALSO CONCLUDED THAT THE SENATE DISTRICTING SCHEME FOR
HARRIS COUNTY DID NOT DILUTE BLACK VOTES. 

/8/  THE COURT'S CONCLUSION THAT THE VARIATIONS IN THIS CASE WERE
NOT JUSTIFIED BY A RATIONAL STATE POLICY WOULD, IN ANY EVENT, REQUIRE
RECONSIDERATION AND REVERSAL UNDER MAHAN V. HOWELL, 410 U.S. 315
(1973).  THE TEXAS CONSTITUTION, ART. III, ^ 26, EXPRESSES THE STATE
POLICY AGAINST CUTTING COUNTY LINES WHEREVER POSSIBLE IN FORMING
REPRESENTATIVE DISTRICTS.  THE DISTRICT COURT RECOGNIZED THE POLICY
BUT, WITHOUT THE BENEFIT OF MAHAN V. HOWELL, MAY HAVE THOUGHT THE
VARIATIONS TOO GREAT TO BE JUSTIFIED BY THAT POLICY.  IT PERHAPS
THOUGHT ALSO THAT THE POLICY HAD NOT BEEN SUFFICIENTLY OR CONSISTENTLY
FOLLOWED HERE.  BUT IT APPEARS TO US THAT TO STAY WITHIN TOLERABLE
POPULATION LIMITS IT WAS NECESSARY TO CUT SOME COUNTY LINES AND THAT
THE STATE ACHIEVED A CONSTITUTIONALLY ACCEPTABLE ACCOMMODATION BETWEEN
POPULATION PRINCIPLES AND ITS POLICY AGAINST CUTTING COUNTY LINES IN
FORMING REPRESENTATIVE DISTRICTS. 

/9/  SEE WHITCOMB V. CHAVIS, 403 U.S. 124, 141 - 148 (1971), AND THE
CASES DISCUSSED IN N. 22 OF THAT OPINION, INCLUDING KILGARLIN V. HILL,
386 U.S. 120 (1967), WHERE WE AFFIRMED THE DISTRICT COURT'S REJECTION
OF PETITIONERS' CONTENTION THAT THE COMBINATION OF SINGLE-MEMBER,
MULTIMEMBER, AND FLOTERIAL DISTRICTS IN A SINGLE REAPPORTIONMENT PLAN
WAS "AN UNCONSTITUTIONAL 'CRAZY QUILT.'"  ID., AT 121. 

/10/  THERE IS NO REQUIREMENT THAT CANDIDATES RESIDE IN SUBDISTRICTS
OF THE MULTIMEMBER DISTRICT.  THUS, ALL CANDIDATES MAY BE SELECTED FROM
OUTSIDE THE NEGRO RESIDENTIAL AREA. 

/11/  THE DISTRICT COURT FOUND THAT "IT IS EXTREMELY DIFFICULT TO
SECURE EITHER A REPRESENTATIVE SEAT IN THE DALLAS COUNTY DELEGATION OR
THE DEMOCRATIC PRIMARY NOMINATION WITHOUT THE ENDORSEMENT OF THE DALLAS
COMMITTEE FOR RESPONSIBLE GOVERNMENT."  343 F. SUPP., AT 726. 

/12/  MEXICAN-AMERICANS CONSTITUTED APPROXIMATELY 20% OF THE
POPULATION OF THE STATE OF TEXAS. 

/13/  THE DISTRICT COURT FOUND THAT "(THE FACT THAT (MEXICAN
AMERICANS) ARE REARED IN A SUB-CULTURE IN WHICH A DIALECT OF SPANISH IS
THE PRIMARY LANGUAGE PROVIDES PERMANENT IMPEDIMENTS TO THEIR
EDUCATIONAL AND VOCATIONAL ADVANCEMENT AND CREATES OTHER TRAUMATIC
PROBLEMS."  343 F. SUPP., AT 730.     /14/  TWO OTHER RESIDENTS OF THE
BARRIO, A NEGRO AND AN AGLO-AMERICAN, HAVE ALSO SERVED IN THE TEXAS
LEGISLATURE. 

  APPENDIX OMITTED 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING IN NO. 71 - 1476, ANTE, P. 735, AND
CONCURRING IN PART AND DISSENTING IN PART IN NO. 72 - 147. 

THE COURT TODAY UPHOLDS STATEWIDE LEGISLATIVE APPORTIONMENT PLANS
FOR CONNECTICUT AND TEXAS, EVEN THOUGH THESE PLANS ADMITTEDLY ENTAIL
SUBSTANTIAL ENQUALITITES IN THE POPULATION OF THE REPRESENTATIVE
DISTRICTS, AND EVEN THOUGH THE STATES HAVE MADE VIRTUALLY NO ATTEMPT TO
JUSTIFY THEIR FAILURE "TO CONSTRUCT DISTRICTS . . . AS NEARLY OF EQUAL
POPULATION AS IS PRACTICABLE."  REYNOLDS V. SIMS, 377 U.S. 533, 577
(1964).  IN REACHING THIS CONCLUSION, THE COURT SETS ASIDE THE JUDGMENT
OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
HOLDING THE CONNECTICUT PLAN INVALID, AND THE JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS REACHING A
SIMILAR RESULT AS TO THE TEXAS PLAN.  IN THE TEXAS CASE, THE COURT DOES
AFFIRM, HOWEVER, THE DISTRICT COURT'S DETERMINATION THAT THE USE OF
MULTIMEMBER DISTRICTS IN DALLAS AND BEXAR COUNTIES HAD THE
UNCONSTITUTIONAL EFFECT OF MINIMIZING THE VOTING STRENGTH OF RACIAL
GROUPS.  /1/  SEE WHITCOMB V. CHAVIS, 403 U.S. 124, 142 - 144 (1971);
BURNS V. RICHARDSON, 384 U.S. 73, 88 (1966); FORTSON V. DORSEY, 379
U.S. 433, 439 (1965).  WITH THAT LATTER CONCLUSION I AM IN FULL
AGREEMENT, AS I ALSO AGREE WITH AND JOIN PART I OF THE COURT'S OPINION
IN NO. 72 - 147, WHITE V. REGESTER.  BUT THE DECISION TO UPHOLD THE
STATE APPORTIONMENT SCHEMES REFLECTS A SUBSTANTIAL AND VERY UNFORTUNATE
RETREAT FROM THE PRINCIPLES ESTABLISHED IN OUR EARLIER CASES, AND I
THEREFORE MUST STATE MY DISSENTING VIEWS. 

       I 

AT ISSUE IN NO. 71 - 1476, GAFFNEY V. CUMMINGS, IS THE 1971
REAPPORTIONMENT PLAN FOR ELECTION OF MEMBERS OF THE HOUSE OF
REPRESENTATIVES OF CONNECTICUT.  THE PLAN WAS PREMISED ON A 151-MEMBER
HOUSE, WITH EACH MEMBER ELECTED FROM A SINGLE-MEMBER DISTRICT.  SINCE
THE POPULATION OF THE STATE WAS 3,032,217, ACCORDING TO 1970 CENSUS
DATA, THE IDEAL WOULD FIX THE POPULATION OF EACH DISTRICT AT 20,081. 
IN FACT, THE POPULATION OF MANY DISTRICTS DEVIATED SUBSTANTIALLY FROM
THE IDEAL, RANGING FROM A DISTRICT UNDERREPRESENTED BY 3.93% TO ONE
OVERREPRESENTED BY 3.9%.  THE TOTAL SPREAD OF DEVIATION -- A FIGURE
DEEMED RELEVANT IN EACH OF OUR EARLIER DECISIONS -- WAS 7.83%.  THE
POPULATION OF 39 ASSEMBLY DISTRICTS DEVIATED FROM THE AVERAGE BY MORE
THAN 3%.  ANOTHER 34 DISTRICTS DEVIATED BY MORE THAN 2%. THE AVERAGE
DEVIATION WAS JUST UNDER 2%.  TO DEMONSTRATE THAT THE STATE PLAN DID
NOT ACHIEVE THE GREATEST PRACTICABLE DEGREE OF EQUALITY IN PER-DISTRICT
POPULATION, APPELLEES SUBMITTED A NUMBER OF PROPOSED APPORTIONMENT
PLANS, INCLUDING ONE THAT WOULD HAVE SIGNIFICANTLY REDUCED THE EXTENT
OF INEQUALITY.  THE TOTAL RANGE OF DEVIATION UNDER APPELLEES' PLAN
WOULD HAVE BEEN 2.61%, AS COMPARED TO 7.83% UNDER THE STATE PLAN. 

THE DISTRICT COURT HELD THE STATE PLAN INVALID ON THE GROUND THAT
"THE DEVIATIONS FROM EQUALITY OF POPULATIONS OF THE . . . HOUSE
DISTRICTS ARE NOT JUSTIFIED BY ANY SUFFICIENT STATE INTEREST."  /2/
341 F. SUPP. 139, 148 (CONN. 1972).  INSTEAD OF ADOPTING ONE OF
APPELLEES'  PLANS, THE COURT APPOINTED A SPECIAL MASTER TO CHART A NEW
PLAN, AND HIS EFFORT PRODUCED A SCHEME WITH A TOTAL RANGE OF DEVIATION
OF ONLY 1.16%.  IN OVERTURNING THE DISTRICT COURT'S DECISION, THE COURT
DOES NOT CONCLUDE, AS IT DID EARLIER THIS TERM IN MAHAN V. HOWELL, 410
U.S. 315 (1973), THAT THE DISTRICT COURT FAILED TO DISCERN THE STATE'S
SUFFICIENT JUSTIFICATION FOR THE DEVIATIONS.  INDEED, IN VIEW OF
APPELLANT'S HALFHEARTED ATTEMPTS TO JUSTIFY THE DEVIATIONS AT ISSUE
HERE, SUCH A CONCLUSION COULD HARDLY BE SUPPORTED.  WHEREAS THE
COMMONWEALTH OF VIRGINIA MADE A SUBSTANTIAL EFFORT TO DRAW DISTRICT
LINES IN CONFORMITY WITH THE BOUNDARIES OF POLITICAL SUBDIVISIONS -- AN
EFFORT THAT WAS FOUND SUFFICIENT IN MAHAN V. HOWELL TO VALIDATE A PLAN
WITH TOTAL DEVIATION OF 16.4% -- THE EVIDENCE IN THE CASE BEFORE US
REQUIRES THE CONCLUSION THAT CONNECTICUT'S APPORTIONMENT PLAN WAS DRAWN
IN COMPLETE DISREGARD OF POLITICAL SUBDIVISION LINES.  THE DISTRICT
COURT POINTED OUT THAT "(THE BOUNDARY LINES OF 47 TOWNS ARE CUT UNDER
THE PLAN SO THAT ONE OR MORE PORTIONS OF EACH OF THESE 47 TOWNS ARE
ADDED TO ANOTHER TOWN OR A PORTION OF ANOTHER TOWN TO FORM AN ASSEMBLY
DISTRICT."  341 F. SUPP., AT 142.  MOREOVER, THE BOUNDARY LINES OF 29
OF THESE 47 TOWNS WERE CUT MORE THAN ONCE, AND THE PLAN CREATED "78
SEGMENTS OF TOWNS IN THE FORMATION OF 151 ASSEMBLY DISTRICTS."  IBID. 

ALTHOUGH APPELLANT FAILED TO OFFER COGENT REASONS IN EXPLANATION OF
THE SUBSTANTIAL VARIATIONS IN DISTRICT POPULATION, THE COURT
NEVERTHELESS UPHOLDS THE STATE PLAN.  THE COURT REASONS THAT EVEN IN
THE ABSENCE OF ANY EXPLANATION FOR THE FAILURE TO ACHIEVE EQUALITY, THE
SHOWING OF A TOTAL DEVIATION OF ALMOST 8% DOES NOT MAKE OUT A PRIMA
FACIE CASE OF INVIDIOUS DISCRIMINATION UNDER THE FOURTEENTH AMENDMENT. 
DEVIATIONS NO GREATER THAN 8% ARE, IN OTHER WORDS, TO BE DEEMED DE
MINIMIS, AND THE STATE NEED NOT OFFER ANY JUSTIFICATION AT ALL FOR THE
FAILURE TO APPROXIMATE MORE CLOSELY THE IDEAL OF REYNOLDS V. SIMS,
SUPRA. 

THE TEXAS REAPPORTIONMENT CASE, NO. 72 - 147, WHITE V. REGESTER,
PRESENTS A SIMILAR SITUATION, EXCEPT THAT THE RANGE OF DEVIATION IN
DISTRICT POPULATION IS GREATER AND THE STATE'S JUSTIFICATIONS ARE, IF
ANYTHING, MORE MEAGER.  AN IDEAL DISTRICT IN TEXAS, WHICH CHOOSES THE
150 MEMBERS OF THE STATE HOUSE OF REPRESENTATIVES FROM 79 SINGLE-MEMBER
AND 11 MULTIMEMBER DISTRICTS, IS 74,645.  AS DEFINED IN THE STATE'S
1970 PLAN, A SUBSTANTIAL NUMBER OF DISTRICTS DEPARTED SIGNIFICANTLY
FROM THE IDEAL.  THE TOTAL RANGE OF DEVIATION WAS AT LEAST 9.9%, AND
ARGUABLY ALMOST 30%, DEPENDING ON THE MODE OF CALCULATION.  /3/  THE
DISTRICT COURT POINTED OUT THAT 

"(IN ALL OF THE EVIDENCE PRESENTED IN THIS CASE, THE STATE HAS NOT
ATTEMPTED TO EXPLAIN IN TERMS OF RATIONAL STATE POLICY ITS FAILURE TO
CREATE DISTRICTS EQUAL IN POPULATION AS NEARLY AS PRACTICABLE, NOR HAS
THE STATE SOUGHT TO JUSTIFY A SINGLE DEVIATION FROM PRECISE
MATHEMATICAL EQUALITY.  THE LENGTHY DEPOSITIONS OF THE MEMBERS OF THE
LEGISLATIVE REDISTRICTING BOARD AND OF THE STAFF MEMBERS WHO DID THE
ACTUAL DRAWING OF THE LEGISLATIVE DISTRICT LINES ARE DEVOID OF ANY
MEANINGFUL INDICATIONS OF THE STANDARDS USED."  343 F. SUPP. 704, 714
(WD TEX. 1972).  AS THE DISTRICT COURT'S OPINION MAKES CLEAR, THE
VARIATIONS SURELY CANNOT BE DEFENDED AS A NECESSARY BYPRODUCT OF A
STATE EFFORT TO AVOID FRAGMENTATION OF POLITICAL SUBDIVISIONS. 
NEVERTHELESS, THE COURT TODAY SETS ASIDE THE DISTRICT COURT'S DECISION,
REASONING, AS IN THE CONNECTICUT CASE, THAT A SHOWING OF AS MUCH AS
9.9% TOTAL DEVIATION STILL DOES NOT ESTABLISH A PRIMA FACIE CASE UNDER
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  SINCE THE
COURT EXPRESSES NO MISGIVING ABOUT OUR RECENT DECISION IN ABATE V.
MUNDT, 403 U.S. 182 (1971), WHERE WE HELD THAT A TOTAL DEVIATION OF
11.9% MUST BE JUSTIFIED BY THE STATE, ONE CAN REASONABLY SURMISE THAT A
LINE HAS BEEN DRAWN AT 10% -- DEVIATIONS IN EXCESS OF THAT AMOUNT ARE
APPARENTLY ACCEPTABLE ONLY ON A SHOWING OF JUSTIFICATION BY THE STATE;
DEVIATIONS LESS THAN THAT AMOUNT REQUIRE NO JUSTIFICATION WHATSOEVER. 

        II 

THE PROPOSITION THAT CERTAIN DEVIATIONS FROM EQUALITY OF DISTRICT
POPULATION ARE SO SMALL AS TO LACK CONSTITUTIONAL SIGNIFICANCE, WHILE
REPEATEDLY URGED ON THIS COURT BY STATES THAT FAILED TO ACHIEVE PRECISE
EQUALITY, HAS NEVER BEFORE COMMANDED A MAJORITY OF THE COURT.  /4/
INDEED, IN KIRKPATRICK V. PREISLER, 394 U.S. 526, 530 (1969), WE
EXPRESSLY REJECTED THE ARGUMENT 

"THAT THERE IS A FIXED NUMERICAL OR PERCENTAGE POPULATION VARIANCE
SMALL ENOUGH TO BE CONSIDERED DE MINIMIS AND TO SATISFY WITHOUT
QUESTION THE 'AS NEARLY AS PRACTICABLE' STANDARD.  THE WHOLE THRUST OF
THE 'AS NEARLY AS PRACTICALBE' APPROACH IS INCONSISTENT WITH ADOPTION
OF FIXED NUMERICAL STANDARDS WHICH EXCUSE POPULATION VARIANCES WITHOUT
REGARD TO THE CIRCUMSTANCES OF EACH PARTICULAR CASE."  THE COURT
REASONS, HOWEVER, THAT KIRKPATRICK V. PREISLER, SUPRA, A CASE THAT
CONCERNED THE DIVISION OF MISSOURI INTO CONGRESSIONAL DISTRICTS, HAS NO
APPLICATION TO THE APPORTIONMENT OF SEATS IN A STATE LEGISLATURE.  IN
MY DISSENTING OPINION IN MAHAN V. HOWELL, SUPRA, I POINTED OUT THAT THE
LANGUAGE, REASONING, AND BACKGROUND OF THE KIRKPATRICK DECISION ALL
COMMAND THE CONCLUSION THAT OUR HOLDING THERE IS APPLICABLE TO STATE
LEGISLATIVE APPORTIONMENT NO LESS THAN TO CONGRESSIONAL DISTRICTING. 
IN FACT, THIS COURT SPECIFICALLY RECOGNIZED AS MUCH IN THE CONTEXT OF A
CHALLENGE TO AN ARIZONA APPORTIONMENT SCHEME IN ELY V. KLAHR, 403 U.S.
108 (1971).  DESCRIBING THE OPINION OF THE DISTRICT COURT WHOSE
JUDGMENT WAS UNDER REVIEW, WE NOTED THAT THE COURT BELOW HAD "PROPERLY
CONCLUDED THAT THIS PLAN WAS INVALID UNDER KIRKPATRICK V. PREISLER, 394
U.S. 526 (1969), AND WELLS V. ROCKEFELLER, 394 U.S. 542 (1969), SINCE
THE LEGISLATURE HAD OPERATED ON THE NOTION THAT A 16% DEVIATION WAS DE
MINIMIS AND CONSEQUANTLY MADE NO EFFORT TO ACHIEVE GREATER EQUALITY." 
403 U.S., AT 111.  YET IT IS PRECISELY SUCH A NOTION THAT THE COURT
TODAY APPROVES.  /5/ 

MOREOVER, EVEN IF KIRKPATRICK SHOULD BE DEEMED INAPPLICABLE TO THE
APPORTIONMENT OF STATE LEGISLATIVE DISTRICTS, THE REASONING THAT GAVE
RISE TO OUR REJECTION OF A DE MINIMIS APPROACH IS FULLY APPLICABLE TO
THE CASE BEFORE US.  WE POINTED OUT THERE THAT THE "AS NEARLY AS
PRACTICABLE" STANDARD -- THE STANDARD THAT CONTROLS LEGISLATIVE
APPORTIONMENT AS WELL AS CONGRESSIONAL DISTRICTING, REYNOLDS V. SIMS,
SUPRA, AT 577 -- DEMANDS THAT "THE STATE MAKE A GOOD-FAITH EFFORT TO
ACHIEVE PRECISE MATHEMATICAL EQUALITY . . . EQUAL REPRESENTATION FOR
EQUAL NUMBERS OF PEOPLE IS A PRINCIPLE DESIGNED TO PREVENT DEBASEMENT
OF VOTING POWER AND DIMINUTION OF ACCESS TO ELECTED REPRESENTATIVES. 
TOLERATION OF EVEN SMALL DEVIATIONS DETRACTS FROM THESE PURPOSES."  394
U.S., AT 530 - 531.  KIRKPATRICK RECOGNIZED THAT "TO CONSIDER A CERTAIN
RANGE OF VARIANCES DE MINIMIS WOULD ENCOURAGE LEGISLATORS TO STRIVE FOR
THAT RANGE RATHER THAN FOR EQUALITY AS NEARLY AS PRACTICALBE."  394
U.S., AT 531. 

ALTHOUGH NOT PURPORTING TO QUARREL WITH THE PRINCIPLE THAT PRECISE
MATHEMATICAL EQUALITY IS THE CONSTITUTIONALLY MANDATED GOAL OF
REAPPORTIONMENT, THE COURT TODAY ESTABLISHES A WIDE MARGIN OF TOLERABLE
ERROR, AND THEREBY UNDERMINES THE EFFORT TO EFFECTUATE THE PRINCIPLE. 
FOR IT IS CLEAR THAT THE STATE LEGISLATURES AND THE STATE AND FEDERAL
COURTS HAVE VIEWED KIRKPATRICK AS CONTROLLING ON THE ISSUE OF
LEGISLATIVE APPORTIONMENT, AND THE OUTGROWTH OF THAT ASSUMPTION HAS
BEEN A TRULY EXTRAORDINARY RECORD OF COMPLIANCE WITH THE CONSTITUTIONAL
MANDATE.  APPELLEES IN NO. 71 - 1476 MAKE THE POINT FORCEFULLY BY
COMPARING THE EXTENT OF INEQUALITY IN THE POPULATION OF LEGISLATIVE
DISTRICTS PRIOR TO 1969, THE YEAR OF OUR DECISION IN KIRKPATRICK, WITH
THE EXTENT OF INEQUALITY IN SUBSEQUENT YEARS.  /6/  PRIOR TO 1969, THE
RANGE OF VARIANCES IN POPULATION OF STATE SENATORIAL DISTRICTS EXCEEDED
15% IN 44 OF THE 50 STATES.  THREE STATES HAD REDUCED THE TOTAL
VARIANCE TO BETWEEN 10% AND 15%; TWO HAD CUT THE VARIANCE TO BETWEEN 5%
AND 10%; ONLY ONE HAD REDUCED THE VARIANCE BELOW 5%.  THE RECORD OF
APPORTIONMENT OF STATE HOUSE DISTRICTS WAS EVEN LESS ENCOURAGING. 
VARIANCES IN EXCESS OF 15% CHARACTERIZED ALL BUT TWO OF THE STATES, AND
ONLY ONE OF THESE HAD BROUGHT THE TOTAL VARIANCE UNDER 10%.  THE
IMPROVEMENT IN THE POST-1969 YEARS COULD NOT HAVE BEEN MORE DRAMATIC. 
THE TABLE PROVIDED BY APPELLEES, SET OUT IN FULL IN THE MARGIN, /7/
REVEALS THAT IN ALMOST ONE-HALF OF THE STATES THE TOTAL VARIANCE IN
POPULATION OF SENATORIAL DISTRICTS WAS WITHIN 5% OF ZERO.  OF THE 45
STATES AS TO WHICH INFORMATION WAS AVAILABLE, 32 HAD REDUCED THE TOTAL
VARIANCE BELOW 10% AND ONLY EIGHT HAD FAILED TO BRING THE TOTAL
VARIANCE BELOW 15%.  WITH REGARD TO HOUSE DISTRICTS THE IMPROVEMENT IS
SIMILAR.  ON THE BASIS OF INFORMATION CONCERNING 42 STATES, IT APPEARS
THAT 20 HAD ACHIEVED A TOTAL VARIANCE OF LESS THAN 5% AND ONLY 14
RETAINED DISTRICTS WITH A TOTAL VARIANCE OF MORE THAN 15% FROM THE
CONSTITUTIONAL IDEAL. 

TO APPRECIATE THE SIGNIFICANCE OF THIS ENCOURAGING DEVELOPMENT, IT
IS IMPORTANT TO UNDERSTAND THAT THE DEMAND FOR PRECISE MATHEMATICAL
EQUALITY RESTS NEITHER ON A SCHOLASTIC OBSESSION WITH ABSTRACT NUMBERS
NOR A RIGID INSENSITIVITY TO THE POLITICAL REALITIES OF THE
REAPPORTIONMENT PROCESS.  OUR PARAMOUNT CONCERN HAS REMAINED AN
INDIVIDUAL AND PERSONAL RIGHT -- THE RIGHT TO AN EQUAL VOTE.  "WHILE
THE RESULT OF A COURT DECISION IN A STATE LEGISLATIVE APPORTIONMENT
CONTROVERSY MAY BE TO REQUIRE THE RESTRUCTIONING OF THE GEOGRAPHICAL
DISTRIBUTION OF SEATS IN A STATE LEGISLATURE, THE JUDICIAL FOCUS MUST
BE CONCENTRATED UPON ASCERTAINING WHETHER THERE HAS BEEN ANY
DISCRIMINATION AGAINST CERTAIN OF THE STATE'S CITIZENS WHICH
CONSTITUTES AN IMPERMISSIBLE IMPAIRMENT OF THEIR CONSTITUTIONALLY
PROTECTED RIGHT TO VOTE."  REYNOLDS V. SIMS, SUPRA, AT 561.  WE HAVE
DEMANDED EQUALITY IN DISTRICT POPULATION PRECISELY TO INSURE THAT THE
WEIGHT OF A PERSON'S VOTE WILL NOT DEPEND ON THE DISTRICT IN WHICH HE
LIVES.  THE CONCLUSION THAT A STATE MAY, WITHOUT ANY ARTICULATED
JUSTIFICATION, DELIBERATELY WEIGHT SOME PERSONS' VOTES MORE HEAVILY
THAN OTHERS, SEEMS TO ME FUNDAMENTALLY AT ODDS WITH THE PURPOSE AND
RATIONALE OF OUR REAPPORTIONMENT DECISIONS.  REGRETTABLY, TODAY'S
DECISIONS ARE LIKELY TO JEOPARDIZE THE VERY SUBSTANTIAL GAINS THAT HAVE
BEEN MADE DURING THE LAST FOUR YEARS.     MOREOVER, IF ANY APPROACH
ASCRIBES TOO MUCH IMPORTANCE TO ABSTRACT NUMBERS AND TOO LITTLE TO THE
REALITIES OF MALAPPORTIONMENT, IT IS NOT KIRKPATRICK'S DEMAND FOR
PRECISE EQUALITY IN DISTRICT POPULATION, BUT RATHER THE COURT'S OWN DE
MINIMIS APPROACH.  BY ESTABLISHING AN ARBITRARY CUTOFF POINT EXPRESSED
IN TERMS OF TOTAL PERCENTAGE VARIANCE FROM THE CONSTITUTIONAL IDEAL,
THE COURT FAILS TO RECOGNIZE THAT PERCENTAGE FIGURES TEND TO HIDE THE
TOTAL NUMBER OF PERSONS AFFECTED BY UNEQUAL WEIGHTING OF VOTES.  IN THE
TEXAS CASE, FOR EXAMPLE, THE DISTRICT COURT POINTED OUT THAT 

"THE TOTAL DEVIATION FOR DALLAS AND BEXAR COUNTIES, RESPECTIVELY,
AMOUNT TO ABOUT 16,000 PEOPLE AND 5,500 PEOPLE, FOR A TOTAL OF AROUND
21,500 PEOPLE.  THE PERCENTAGE DEVIATION FIGURES ARE ONLY A SHORTHAND
METHOD OF EXPRESSING THE 'LOSS,' DILUTION, OR DISPROPORTIONATE
WEIGHTING OF VOTES.  JUST AS THE COURT IN REYNOLDS CONCLUDED THAT
LEGISLATORS REPRESENT PEOPLE, NOT TREES OR COWS, SO WE WOULD EMPHAZISE
THAT LEGISLATORS REPRESENT PEOPLE, NOT PERCENTAGES OF PEOPLE."  343 F.
SUPP., AT 713 N. 5. 

FINALLY, IT IS NO ANSWER TO SUGGEST THAT PRECISE MATHEMATICAL
EQUALITY IS AN UNSATISFACTORY GOAL IN VIEW OF THE INEVITABLE
INACCURACIES OF THE CENSUS DATA ON WHICH THE PLANS ARE BASED.  THAT
ARGUMENT, WHICH WE IMPLICITLY REJECTED IN KIRKPATRICK V. PREISLER,
SUPRA, /8/  MIXES TWO DISTINCT QUESTIONS.  IN THE FIRST PLACE, A STATE
APPORTIONMENT PLAN MUST BE GROUNDED ON THE MOST ACCURATE AVAILABLE
DATA, AND THE UNRELIABILITY OF THE DATA MAY ITSELF NECESSITATE THE
INVALIDATION OF THE PLAN.  BUT ONCE THE DATA ARE ESTABLISHED, THE
STATE'S CONSTITUTIONAL OBLIGATION IS TO ACHIEVE THE HIGHEST PRACTICABLE
DEGREE OF EQUALITY WITH REFERENCE TO THE INFORMATION AT HAND.  IN MY
VIEW, THE DISTRICT COURTS PROPERLY CONCLUDED THAT NEITHER TEXAS NOR
CONNECTICUT HAD SATISFIED THIS OBLIGATION.  I WOULD THEREFORE AFFIRM
BOTH JUDGMENTS. 

/1/  IN FORTSON V. DORSEY, 379 U.S. 433 (1965), WE HELD THAT A
MULTIMEMBER DISTRICT IS NOT PER SE UNCONSTITUTIONAL UNDER THE EQUAL
PROTECTION CLAUSE, EVEN THOUGH WE HAD PREVIOUSLY RECOGNIZED CERTAIN
INHERENTLY UNDESIRABLE FEATURES OF THE DEVICE.  SEE LUCAS V. COLORADO
GENERAL ASSEMBLY, 377 U.S. 713, 731 N. 21 (1964).  WE HAVE CONCLUDED,
HOWEVER, THAT THE USE OF THE DEVICE IS, IN FACT, UNCONSTITUTIONAL,
WHERE IT OPERATES TO "'MINIMIZE OR CANCEL OUT THE VOTING STRENGTH OF
RACIAL OR POLITICAL ELEMENTS OF THE VOTING POPULATION,'" BURNS V.
RICHARDSON, 384 U.S. 73, 88 (1966), QUOTING FROM FORTSON V. DORSEY,
SUPRA, AT 439.  TODAY'S DECISION IS THE FIRST IN WHICH WE HAVE
SUSTAINED AN ATTACK ON THE USE OF MULTIMEMBER DISTRICTS.  CF. WHITCOMB
V. CHAVIS, 403 U.S. 124, 144 (1971). 

/2/  WITH REGARD TO THE SENATORIAL DISTRICTS, THE 1971 PLAN PRODUCED
A TOTAL VARIANCE OF 1.81%.  ALTHOUGH APPELLEES DID NOT SPECIFICALLY
CHALLENGE THE APPORTIONMENT OF SENATORIAL DISTRICTS, THE DISTRICT COURT
PROPERLY CONCLUDED THAT ITS FINDING OF UNCONSTITUTIONAL DEVIATION IN
ONE HOUSE REQUIRED INVALIDATION OF THE ENTIRE APPORTIONMENT PLAN. 
MARYLAND COMMITTEE FOR FAIR REPRESENTATION V. TAWES, 377 U.S. 656, 673
(1964); LUCAS V. COLORADO GENERAL ASSEMBLY, SUPRA, AT 735.  BURNS V.
RICHARDSON, SUPRA, AT 83. 

/3/  THE DISTRICT COURT POINTED OUT THAT "THE STATE'S METHOD OF
COMPUTING DEVIATIONS IN THE MULTI-MEMBER DISTRICTS MAY DISTORT THE
ACTUAL PERCENTAGE DEVIATIONS IN THOSE ELEVEN DISTRICTS.  . .  SINCE WE
HAVE CONCLUDED THAT THE 9.9% TOTAL DEVIATION IS NOT THE RESULT OF A
GOOD FAITH ATTEMPT TO ACHIEVE POPULATION EQUALITY AS NEARLY AS
PRACTICABLE, IT IS UNNECESSARY FOR US TO RESOLVE THIS COMPLEX
COMPUTATIONAL CONFLICT."  343 F. SUPP. 704, 713 N. 5.  A SIMILAR
CONFLICT EXISTED IN MAHAN V. HOWELL, 410 U.S. 315 (1973), AS I POINTED
OUT IN MY DISSENTING OPINION, ID., AT 333, AND THERE TOO THE COURT
DECLINED TO INDICATE ANY AWARENESS OF THE DISPUTE. 

/4/  THERE IS A STATEMENT, TO BE SURE, IN SWANN V. ADAMS, 385 U.S.
440, 444 (1967), THAT "(DE MINIMIS DEVIATIONS ARE UNAVOIDABLE,"  BUT
THAT STATEMENT MUST BE VIEWED IN CONTEXT.  BY WAY OF CLARIFICATION, THE
COURT IMMEDIATELY ADDED THAT "THE REYNOLDS OPINION LIMITED THE
ALLOWABLE DEVIATIONS TO THOSE MINOR VARIATIONS WHICH 'ARE BASED ON
LEGITIMATE CONSIDERATIONS INCIDENT TO THE EFFECTUATION OF A RATIONAL
STATE POLICY.'  377 U.S. 533, 579."  IBID.  SIMILARLY, THE COURT NOTED,
QUOTING FROM ROMAN V. SINCOCK, 377 U.S. 695, 710 (1964), THAT "THE
CONSTITUTION PERMITS 'SUCH MINOR DEVIATIONS ONLY AS MAY OCCUR IN
RECOGNIZING CERTAIN FACTORS THAT ARE FREE FROM ANY TAINT OF
ARBITRARINESS OR DISCRIMINATION.'"  385 U.S., AT 444.  SWANN V. ADAMS
DOES NOT, IN MY VIEW, SUGGEST ANY SUPPORT FOR THE PROPOSITION THAT
DEVIATIONS AS GREAT AS 10% ARE TOLERABLE IN THE ABSENCE OF ANY
JUSTIFICATION OR EXPLANATION BY THE STATE. 

/5/  BY CONTRAST, IN MAHAN V. HOWELL, SUPRA, THE COURT EXPRESSLY
REAFFIRMED THE HOLDING OF REYNOLDS V. SIMS, 377 U.S. 533 (1964), THAT
"DEVIATIONS FROM THE EQUAL-POPULATION PRINCIPLE ARE CONSTITUTIONALLY
PERMISSIBLE" "(SO LONG AS THE DIVERGENCES FROM A STRICT POPULATION
STANDARD ARE BASED ON LEGITIMATE CONSIDERATIONS INCIDENT TO THE
EFFECTUATION OF A RATIONAL STATE POLICY."  ID., AT 579, QUOTED IN MAHAN
V. HOWELL, SUPRA, AT 325.  IN MY VIEW, THE COURT DID FOLLOW THE LINE OF
ANALYSIS PRESCRIBED IN OUR EARLIER DECISIONS -- REQUIRING THE STATE TO
JUSTIFY EVERY DEVIATION FROM PRECISE EQUALITY.  THE APPROACH OF MAHAN
IS, THEREFORE, DIRECTLY AT ODDS WITH THE APPROACH ADOPTED TODAY.  SEE
ALSO, E. G., ABATE V. MUNDT, 403 U.S. 182, 185 (1971); KILGARLIN V.
HILL, 386 U.S. 120, 122 (1967); SWANN V. ADAMS, SUPRA, AT 443 - 446. 

/6/  APPELLEES' FIGURES ARE COMPILED FROM A TABLE ENTITLED
APPORTIONMENT OF LEGISLATURES IN 17 COUNCIL OF STATE GOVERNMENTS, THE
BOOK OF THE STATES:  1968 - 1969, PP. 66 - 67 (1968), AND FROM COUNCIL
OF STATE GOVERNMENTS, REAPPORTIONMENT IN THE SEVENTIES (1973). 

/7/  (TABLE OMITTED) 

/8/  SEE 394 U.S., AT 538-540 (1969) (FORTAS J., CONCURRING); WELLS
V. ROCKEFELLER, 394 U. S. 542, 554 (1969) (WHITE, J., DISSENTING). 

LEON JAWORSKI, SPECIAL ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED
THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE JOHN L. HILL,
ATTORNEY GENERAL, LARRY YORK, EXECUTIVE ASSISTANT ATTORNEY GENERAL,
ALTON F. CURRY, SPECIAL ASSISTANT ATTORNEY GENERAL, AND LEWIS A. JONES,
ASSISTANT ATTORNEY GENERAL. 

DAVID R. RICHARDS ARGUED THE CAUSE FOR APPELLEES REGESTER ET AL. WITH
HIM ON THE BRIEF WERE RONALD L. CLOWER AND JAMES A. MATTOX.  ED IDAR,
JR., ARGUED THE CAUSE FOR APPELLEES BERNAL ET AL.  WITH HIM ON THE
BRIEF WERE MARIO OBLEDO, GEORGE J. KORBEL, AND FRANK HERMANDEZ.  THOMAS
GIBBS GEE ARGUED THE CAUSE FOR APPELLEES WILLEFORD ET AL. WITH HIM ON
THE BRIEF WAS WILLIAM TERRY BRAY.  J. DOUGLAS MCGUIRE FILED A BRIEF FOR
APPELLEES VAN HENRY ARCHER, JR., ET AL. D. MARCUS RANGER AND E. BRICE
CUNNINGHAM FILED A BRIEF FOR APPELLEES WASHINGTON ET AL. 

WILLIAM A. DOBROVIR FILED A BRIEF FOR LEAGUE OF WOMEN VOTERS OF THE
UNITED STATES ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :





















WHITE V. WEISER 412 U.S. 783 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF TEXAS

        NO. 71 - 1623.  ARGUED FEBRUARY 26, 1973--DECIDED JUNE 18,

    1973; AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 


    TEXAS ENACTED SENATE BILL ONE (S.B. 1) PROVIDING FOR

  CONGRESSIONAL REDISTRICTING.  THE STATE WAS DIVIDED INTO 24

  DISTRICTS, WITH AN AVERAGE DEVIATION FROM THE IDEAL DISTRICT OF

  .745%, AND A MAXIMUM DEVIATION OF 2.43% ABOVE AND 1.70% BELOW THE

  IDEAL.  APPELLEES ALLEGED THAT THE REAPPORTIONMENT VIOLATED THEIR

  CONSTITUTIONAL RIGHTS UNDER ART. I, ^ 2, AND SUBMITTED PLAN B,

  WHICH, ALTHOUGH CUTTING ACROSS MORE COUNTY LINES, GENERALLY

  FOLLOWED THE DISTRICT LINES OF S.B. 1  PLAN B HAD A TOTAL MAXIMUM

  DEVIATION OF .149%.  SHORTLY BEFORE THE THREE-JUDGE COURT

  HEARING, APPELLEES SUBMITTED, ALTERNATIVE, PLAN C. THAT SCHEME,

  WITH A TOTAL MAXIMUM DEVIATION OF .284%, SUBSTANTIALLY

  DISREGARDED THE CONFIGURATION OF THE DISTRICTS IN S.B. 1, USING

  POPULATION AS THE ONLY CONSIDERATION.  THE DISTRICT COURT FOUND

  S.B. 1 UNCONSTITUTIONAL AND ORDERED THE ADOPTION OF PLAN C, AS

  BEING MORE COMPACT AND CONTIGUOUS THAN THE OTHER PLANS.  HELD: 

     1.  ALTHOUGH THE PERCENTAGE DEVIATIONS IN S.B. 1 ARE SMALLER

  THAN THOSE INVALIDATED IN KIRKPATRICK V. PREISLER, 394 U.S. 526,

  AND WELLS V. ROCKEFELLER, 394 U.S. 542, THEY WERE NOT

  "UNAVOIDABLE" AND THE DISTRICTS WERE NOT AS MATHEMATICALLY EQUAL

  AS REASONABLY POSSIBLE.  THE ARGUMENT THAT VARIANCES ARE

  JUSTIFIED IF THEY NECESSARILY RESULT FROM THE STATE'S ATTEMPT TO

  AVOID FRAGMENTING POLITICAL SUBDIVISIONS BY DRAWING DISTRICT

  LINES ALONG EXISTING POLITICAL SUBDIVISIONS LINES IS NOT LEGALLY

  ACCEPTABLE.  KIRKPATRICK, SUPRA, AT 533 - 534.  PP. 790 - 791. 

     2.  THOUGH THE DRAWING OF DISTRICT BOUNDARIES IN A WAY THAT

  MINIMIZES THE NUMBER OF CONTESTS BETWEEN PRESENT INCUMBENTS DOES

  NOT OF ITSELF ESTABLISH INVIDIOUSNESS, BURNS V. RICHARDSON, 384

  U.S. 73, 89 N. 16, IT IS NOT NECESSARY TO DECIDE WHETHER SUCH

  STATE INTEREST WILL JUSTIFY THE DEVIATIONS IN S.B. 1, SINCE PLAN

  B SERVES THIS PURPOSE AS WELL WITH LESS POPULATION VARIANCE.  PP.

  791 - 792. 

     3.  POPULATION VARIANCES DO INVIDIOUSLY DEVALUE THE

  INDIVIDUAL'S VOTE AT SOME POINT OR LEVEL IN SIZE, AND THIS IS

  ESPECIALLY NOTICEABLE IN CONGRESSIONAL DISTRICTS WITH THEIR

  SUBSTANTIAL POPULATIONS.  PP. 792 - 793. 

     4.  PLAN B, TO A GREATER EXTENT THAN PLAN C, WHILE ELIMINATING

  POPULATION VARIANCES, ADHERED TO THE DISTRICTING PREFERENCES OF

  THE STATE LEGISLATURE, WHICH HAS "PRIMARY JURISDICTION" OVER

  LEGISLATIVE REAPPORTIONMENT.  PP. 793 - 797. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN PART I OF WHICH
ALL MEMBERS JOINED AND IN PART II OF WHICH BURGER, C. J., AND DOUGLAS,
BRENNAN, STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
POWELL, J., FILED A CONCURRING OPINION, IN WHICH BURGER, C. J., AND
REHNQUIST, J., JOINED, POST, P. 798.  MARSHALL, J., FILED AN OPINION
CONCURRING IN PART IN PART II OF THE OPINION OF THE COURT, POST, P.
798. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE CONGRESSIONAL REAPPORTIONMENT OF THE STATE OF
TEXAS. 

ON JUNE 17, 1971, THE GOVERNOR OF THE STATE OF TEXAS SIGNED INTO LAW
SENATE BILL ONE (S.B. 1), TEX. ACTS, 62D LEG., 1ST CALLED SESS., C. 12,
P. 38, PROVIDING FOR THE CONGRESSIONAL REDISTRICTING OF THE STATE. 
S.B. 1 DIVIDED THE STATE INTO 24 CONGRESSIONAL DISTRICTS FOR THE
ENSUING DECENNIUM.  /1/  BASED UPON 1970 CENSUS FIGURES, ABSOLUTE
POPULATION EQUALITY AMONG THE 24 DISTRICTS WOULD MEAN A POPULATION OF
466,530 IN EACH DISTRICT.  THE DISTRICTS CREATED BY S.B. 1 VARIED FROM
A HIGH OF 477,856 IN THE 13TH DISTRICT TO A LOW OF 458,581 IN THE 15TH
DISTRICT.  THE 13TH DISTRICT EXCEEDED THE IDEAL DISTRICT BY 2.43% AND
THE 15TH DISTRICT WAS SMALLER BY 1.7%.  THE POPULATION DIFFERENCE
BETWEEN THE TWO DISTRICTS WAS 19,275 PERSONS, AND THEIR TOTAL
PERCENTAGE DEVIATION WAS 4.13%.  THE RATIO OF THE 13TH DISTRICT TO THE
15TH WAS 1.04 TO 1.  THE AVERAGE DEVIATION OF ALL DISTRICTS FROM THE
IDEAL DISTRICT OF 466,530 WAS .745% OR 3,421 PERSONS.  /2/ 

ON OCTOBER 19, 1971, APPELLEES, RESIDENTS OF THE 6TH, 13TH, 16TH,
AND 19TH CONGRESSIONAL DISTRICTS, FILED SUIT IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AGAINST APPELLANT,
THE SECRETARY OF STATE OF TEXAS AND THE CHIEF ELECTION OFFICER OF THE
STATE.  APPELLEES ALLEGED THAT THE REAPPORTIONMENT OF THE TEXAS
CONGRESSIONAL SEATS AS EMBODIED IN S.B. 1 VIOLATED THEIR RIGHTS UNDER
ART. 1, ^ 2, AND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  /3/  THEY REQUESTED AN INJUNCTION AGAINST THE USE OF S.B.
1, AN ORDER REQUIRING A NEW APPORTIONMENT OR THE USE OF A PLAN
SUBMITTED WITH THEIR COMPLAINT, OR AT-LARGE ELECTIONS.  THE PLAN
APPENDED TO APPELLEES' ORIGINAL COMPLAINT, WHICH CAME TO BE CALLED PLAN
B, GENERALLY FOLLOWED THE REDISTRICTING PATTERN OF S.B. 1.  HOWEVER,
THE DISTRICT LINES WERE ADJUSTED WHERE NECESSARY SO AS TO ACHIEVE
SMALLER POPULATION VARIANCES AMONG DISTRICTS.  PLAN B CREATED DISTRICTS
VARYING FROM 466,930 TO 466,234, FOR A TOTAL ABSOLUTE DEVIATION BETWEEN
THE LARGEST AND SMALLEST DISTRICT OF 696 PERSONS.  DISTRICT 12 EXCEEDED
THE IDEAL BY .063%, FOR A TOTAL PERCENTAGE DEVIATION OF .149%.
ALTHOUGH THE PLAN FOLLOWED THE DISTRICT LINES OF S.B. 1 WHERE POSSIBLE,
IN ORDER TO ACHIEVE MAXIMUM POPULATION EQUALITY, PLAN B CUT ACROSS 18
MORE COUNTY LINES THAN DID S.B. 1.  /4/ 

A THREE-JUDGE COURT WAS CONVENED.  28 U.S.C. ^^ 2281, 2284.  ON
JANUARY 10, 1972, SEVERAL DAYS PRIOR TO THE SCHEDULED HEARING OF THE
CASE, APPELLEES FILED AN AMENDED COMPLAINT SUGGESTING AN ALTERNATIVE
PLAN, WHICH CAME TO BE CALLED PLAN C. PLAN C, UNLIKE PLAN B,
SUBSTANTIALLY DISREGARDED THE CONFIGURATION OF THE DISTRICTS IN S.B.
1.  INSTEAD, AS THE AUTHORS OF THE PLAN FRANKLY ADMITTED AND THE
DISTRICT COURT FOUND, PLAN C REPRESENTED AN ATTEMPT TO ATTAIN LOWER
DEVIATIONS WITHOUT REGARD TO ANY CONSIDERATION OTHER THAN POPULATION. 
THE DISTRICTS IN PLAN C VARIED IN POPULATION FROM 467,173 AS A HIGH TO
465,855 AS A LOW, A DIFFERENCE OF 1,323 PERSONS.  THE LARGEST DISTRICT
WAS OVERPOPULATED BY .139%, AND THE SMALLEST UNDERPOPULATED BY .145%,
THE TOTAL PERCENTAGE DEVIATION BEING .284%.  PLAN C HAD 14 DISTRICTS
WITH GREATER DEVIATIONS THAN PLAN B, EIGHT DISTRICTS WITH DEVIATIONS
EQUAL TO THOSE FOUND IN PLAN B, AND TWO DISTRICTS WITH DEVIATIONS
SMALLER THAN THOSE IN PLAN B.  /5/ 

ON JANUARY 21, 1972, THE DISTRICT COURT HEARD ARGUMENT AND RECEIVED
INTO EVIDENCE VARIOUS DEPOSITIONS.  THE NEXT DAY, THE COURT ANNOUNCED
ITS DECISION.  RELYING UPON THIS COURT'S DECISION IN KIRKPATRICK V.
PREISLER, 394 U.S. 526 (1969), THE DISTRICT COURT DECLARED S.B. 1
UNCONSTITUTIONAL AND ENJOINED APPELLANT FROM "CONDUCTING OR PERMITTING
ANY PRIMARY OR GENERAL ELECTIONS BASED UPON THE DISTRICTS ESTABLISHED
BY S.B. 1."  THE DISTRICT COURT ORDERED THE ADOPTION OF PLAN C AS "THE
PLAN OF THIS COURT FOR THE CONGRESSIONAL DISTRICTS OF THE STATE OF
TEXAS."  /6/  NOTING THAT ITS ORDER WAS ENTERED "WITHOUT PREJUDICE TO
THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE STATE OF TEXAS TO PROCEED
WITH THE CONSIDERATION AND ADOPTION OF ANY OTHER CONSTITUTIONALLY
PERMISSIBLE PLAN OF CONGRESSIONAL REDISTRICTING AT A CALLED OR REGULAR
SESSION OF THE LEGISLATURE,"  THE DISTRICT COURT RETAINED JURISDICTION
"FOR THE PURPOSES OF CONSIDERING ANY SUCH PLAN WHICH MIGHT BE ADOPTED
BY THE LEGISLATURE OF THE STATE OF TEXAS UNTIL CONGRESSIONAL
REAPPORTIONMENT IS ENACTED BASED ON THE TWENTIETH DECENNIAL CENSUS TO
BE CONDUCTED IN 1980."  /7/ 

THIS COURT, ON APPLICATION OF APPELLANT, GRANTED A STAY OF THE ORDER
OF THE DISTRICT COURT.  404 U.S. 1065 (1972).  THE 1972 CONGRESSIONAL
ELECTIONS WERE THEREFORE CONDUCTED UNDER THE PLAN EMBODIED IN S.B. 1. 
WE NOTED PROBABLE JURISDICTION OF THE APPEAL.  409 U.S. 947 (1972). 

  I 

THE COMMAND OF ART. I, ^ 2, THAT REPRESENTATIVES BE CHOSEN "BY THE
PEOPLE OF THE SEVERAL STATES" WAS ELUCIDATED IN WESBERRY V. SANDERS,
376 U.S. 1 (1964), AND IN KIRKPATRICK V. PREISLER, 394 U.S., AT 527 -
528, TO PERMIT ONLY THOSE POPULATION VARIANCES AMONG CONGRESSIONAL
DISTRICTS THAT "ARE UNAVOIDABLE DESPITE A GOOD-FAITH EFFORT TO ACHIEVE
ABSOLUTE EQUALITY, OR FOR WHICH JUSTIFICATION IS SHOWN."  ID., AT 531. 
/8/  SEE ALSO WELLS V. ROCKEFELLER, 394 U.S. 542, 546 (1969). 
KIRKPARICK AND WELLS INVALIDATED STATE REAPPORTIONMENT STATUTES
PROVIDING FOR FEDERAL CONGRESSIONAL DISTRICTS HAVING TOTAL PERCENTAGE
DEVIATIONS OF 5.97% AND 13.1%, RESPECTIVELY.  IN BOTH CASES, WE
CONCLUDED THAT THE DEVIATIONS DID NOT DEMONSTRATE A GOOD-FAITH EFFORT
TO ACHIEVE ABSOLUTE EQUALITY AND WERE NOT SUFFICIENTLY JUSTIFIED. 

THE PERCENTAGE DEVIATIONS NOW BEFORE US IN S.B. 1 ARE SMALLER THAN
THOSE INVALIDATED IN KIRKPATRICK AND WELLS, BUT WE AGREE WITH THE
DISTRICT COURT THAT, UNDER THE STANDARDS OF THOSE CASES, THEY WERE NOT
"UNAVOIDABLE," AND THE DISTRICTS WERE NOT AS MATHEMATICALLY EQUAL AS
REASONABLY POSSIBLE.  BOTH PLANS B AND C DEMONSTRATE THIS MUCH, AND THE
STATE DOES NOT REALLY DISPUTE IT.  /9/  ALSO, AS IN KIRKPATRICK AND
WELLS, "WE DO NOT FIND LEGALLY ACCEPTABLE THE ARGUMENT THAT VARIANCES
ARE JUSTIFIED IF THEY NECESSARILY RESULT FROM A STATE'S ATTEMPT TO
AVOID FRAGMENTING POLITICAL SUBDIVISIONS BY DRAWING CONGRESSIONAL
DISTRICT LINES ALONG EXISTING COUNTY, MUNICIPAL, OR OTHER POLITICAL
SUBDIVISION BOUNDARIES."  KIRKPATRICK V. PREISLER, SUPRA, AT 533 -
534. 

THE STATE ASSERTS THAT THE VARIANCES PRESENT IN S.B. 1 NEVERTHELESS
REPRESENT GOOD-FAITH EFFORTS BY THE STATE TO PROMOTE "CONSTITUENCY
REPRESENTATIVE RELATIONS,"  /10/  A POLICY FRANKLY AIMED AT MAINTAINING
EXISTING RELATIONSHIPS BETWEEN INCUMBENT CONGRESSMEN AND THEIR
CONSTITUENTS AND PRESERVING THE SENIORITY THE MEMBERS OF THE STATE'S
DELEGATION HAVE ACHIEVED IN THE UNITED STATES HOUSE OF
REPRESENTATIVES.  WE DO NOT DISPARAGE THIS INTEREST.  WE HAVE, IN THE
CONTEXT OF STATE REAPPORTIONMENT, SAID THAT THE FACT THAT "DISTRICT
BOUNDARIES MAY HAVE BEEN DRAWN IN A WAY THAT MINIMIZES THE NUMBER OF
CONTESTS BETWEEN PRESENT INCUMBENTS DOES NOT IN AND OF ITSELF ESTABLISH
INVIDIOUSNESS."  BURNS V. RICHARDSON, 384 U.S. 73, 89 N. 16 (1966). 
CF. GAFFNEY V. CUMMINGS, ANTE, AT 752.  BUT WE NEED NOT DECIDE WHETHER
THIS STATE INTEREST IS SUFFICIENT TO JUSTIFY THE DEVIATIONS AT ISSUE
HERE, FOR PLAN B ADMITTEDLY SERVES THIS PURPOSE AS WELL AS S.B. 1 WHILE
ADHERING MORE CLOSELY TO POPULATION EQUALITY.  /11/  S.B. 1 AND ITS
POPULATION VARIATIONS, THEREFORE, WERE NOT NECESSARY TO ACHIEVE THE
ASSERTED STATE GOAL, AND THE DISTRICT COURT WAS CORRECT IN REJECTING
IT.  /12/ 

APPELLANT ALSO STRAIGHTFORWARDLY ARGUES THAT KIRKPATRICK AND WELLS
SHOULD BE MODIFIED SO AS NOT TO REQUIRE THE "SMALL" POPULATION
VARIANCES AMONG CONGRESSIONAL DISTRICTS INVOLVED IN THIS CASE TO BE
JUSTIFIED BY THE STATE.  S.B. 1, IT IS URGED, ABSENT PROOF OF
INVIDIOUSNESS OVER AND ABOVE THE POPULATION VARIANCES AMONG ITS
DISTRICTS, DOES NOT VIOLATE ART. 1, ^ 2.  IT IS CLEAR, HOWEVER, THAT AT
SOME POINT OR LEVEL IN SIZE, POPULATION VARIANCES DO IMPORT INVIDIOUS
DEVALUATION OF THE INDIVIDUAL'S VOTE AND REPRESENT A FAILURE TO ACCORD
HIM FAIR AND EFFECTIVE REPRESENTATION.  APPELLANT CONCEDES THIS AND
WOULD LOCATE THE LINE DIFFERENTLY THAN THE COURT DID IN KIRKPATRICK AND
WELLS.  KEEPING IN MIND THAT CONGRESSIONAL DISTRICTS ARE NOT SO
INTERTWINED AND FREIGHTED WITH STRICTLY LOCAL INTERESTS AS ARE STATE
LEGISLATIVE DISTRICTS AND THAT, AS COMPARED WITH THE LATTER, THEY ARE
RELATIVELY ENORMOUS, WITH EACH PERCENTAGE POINT OF VARIATION
REPRESENTING ALMOST 5,000 PEOPLE, WE ARE NOT INCLINED TO DISTURB
KIRKPATRICK AND WELLS.  THIS IS PARTICULARLY SO IN LIGHT OF MAHAN V.
HOWELL, 410 U.S. 315 (1973), DECIDED EARLIER THIS TERM, WHERE WE
REITERATED THAT THE WESBERRY, KIRKPATRICK, AND WELLS LINE OF CASES
WOULD CONTINUE TO GOVERN CONGRESSIONAL REAPPORTIONMENTS, ALTHOUGH
HOLDING THAT THE RIGOR OF THE RULE OF THOSE CASES WAS INAPPROPRIATE FOR
STATE REAPPORTIONMENTS CHALLENGED UNDER THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT. 

II 

THE DISTRICT COURT PROPERLY REJECTED S.B. 1, BUT IT HAD BEFORE IT
BOTH PLAN B AND PLAN C, AND THERE REMAINS THE QUESTION WHETHER THE
COURT CORRECTLY CHOSE IN IMPLEMENT THE LATTER.  /13/  PLAN B ADHERED TO
THE BASIC DISTRICT CONFIGURATIONS FOUND IN S.B. 1, BUT ADJUSTED THE
DISTRICT LINES, WHERE NECESSARY, IN ORDER TO ACHIEVE MAXIMUM POPULATION
EQUALITY AMONG DISTRICTS.  EACH DISTRICT IN PLAN B CONTAINED GENERALLY
THE SAME COUNTIES AS THE EQUIVALENT DISTRICT IN S.B. 1.  /14/  PLAN C,
ON THE OTHER HAND, WAS BASED ENTIRELY UPON POPULATION CONSIDERATIONS
AND MADE NO ATTEMPT TO ADHERE TO THE DISTRICT CONFIGURATIONS FOUND IN
S.B. 1.  /15/  BOTH PLANS WERE SUBMITTED TO THE DISTRICT COURT BY
APPELLEES.  AFTER DECIDING THAT S.B. 1 WAS UNACCEPTABLE, THE DISTRICT
COURT ORDERED THE IMPLEMENTATION OF PLAN C. IN ANNOUNCING ITS DECISION,
THE COURT SAID ONLY: 

"PLAN C IS BASED SOLELY ON POPULATION AND IS SIGNIFICANTLY MORE
COMPACT AND CONTIGUOUS THAN EITHER S.B. 1 OR PLAN B. . .  THE COURT HAS
CONSIDERED PLANS B AND C . . . AND CONCLUDES THAT PLAN C BEST,
EFFECTUATES THE PRINCIPLE OF 'ONE MAN, ONE VOTE'  ENUNCIATED BY THE
SUPREME COURT." 

APPELLANT ARGUES THAT, EVEN IF THE DISTRICT COURT PROPERLY STRUCK
DOWN S.B. 1, IT SHOULD HAVE SELECTED PLAN B RATHER THAN PLAN C.
APPELLEES DEFEND THE SELECTION OF PLAN C AS AN EXERCISE OF THE REMEDIAL
DISCRETION OF THE DISTRICT COURT, ALTHOUGH IN DOING SO THEY ARGUE
AGAINST A PLAN THAT THEY PROPOSED AND FREQUENTLY URGED UPON THE
DISTRICT COURT. 

FROM THE BEGINNING, WE HAVE RECOGNIZED THAT "REAPPORTIONMENT IS
PRIMARILY A MATTER FOR LEGISLATIVE CONSIDERATION AND DETERMINATION, AND
THAT JUDICIAL RELIEF BECOMES APPROPRIATE ONLY WHEN A LEGISLATURE FAILS
TO REAPPORTION ACCORDING TO FEDERAL CONSTITUTIONAL REQUISITES IN A
TIMELY FASHION AFTER HAVING HAD AN ADEQUATE OPPORTUNITY TO DO SO." 
REYNOLDS V. SIMS, 377 U.S. 533, 586 (1964).  SEE ALSO, ID., AT 584, 586
- 587; ID., AT 588 - 589 (OPINION OF STEWART, J.).  WE HAVE ADHERED TO
THE VIEW THAT STATE LEGISLATURES HAVE "PRIMARY JURISDICTION" OVER
LEGISLATIVE REAPPORTIONMENT.  SEE MARYLAND COMMITTEE FOR FAIR
REPRESENTATION V. TAWES, 377 U.S. 656, 676 (1964); DAVIS V. MANN, 377
U.S. 678, 693 (1964); ROMAN V. SINCOCK, 377 U.S. 695, 709 - 710, 711 -
712 (1964); BURNS V. RICHARDSON, 384 U.S., AT 84 - 85; ELY V. KLAHR,
403 U.S. 108, 114 (1971); WHITCOMB V. CHAVIS, 403 U.S. 124, 160 - 161
(1971); SIXTY-SEVENTH MINNESOTA STATE SENATE V. BEENS, 406 U.S. 187,
195 - 201 (1972); MAHAN V. HOWELL, 410 U.S., AT 327.  JUST AS A FEDERAL
DISTRICT COURT, IN THE CONTEXT OF LEGISLATIVE REAPPORTIONMENT, SHOULD
FOLLOW THE POLICIES AND PREFERENCES OF THE STATE, AS EXPRESSED IN
STATUTORY AND CONSTITUTIONAL PROVISIONS OR IN THE REAPPORTIONMENT PLANS
PROPOSED BY THE STATE LEGISLATURE, WHENEVER ADHERENCE TO STATE POLICY
DOES NOT DETRACT FROM THE REQUIREMENTS OF THE FEDERAL CONSTITUTION, WE
HOLD THAT A DISTRICT COURT SHOULD SIMILARLY HONOR STATE POLICIES IN THE
CONTEXT OF CONGRESSIONAL REAPPORTIONMENT.  IN FASHIONING A
REAPPORTIONMENT PLAN OR IN CHOOSING AMONG PLANS, A DISTRICT COURT
SHOULD NOT PRE-EMPT THE LEGISLATIVE TASK NOR "INTRUDE UPON STATE POLICY
ANY MORE THAN NECESSARY."  WHITCOMB V. CHAVIS, SUPRA, AT 160. 

HERE, IT IS CLEAR THAT PLAN B, TO A GREATER EXTENT THAN DID PLAN C,
ADHERED TO THE DESIRES OF THE STATE LEGISLATURE WHILE ATTEMPTING TO
ACHIEVE POPULATION EQUALITY AMONG DISTRICTS.  S.B. 1, A DULY ENACTED
STATUTE OF THE STATE OF TEXAS, ESTABLISHED THE STATE'S 24 CONGRESSIONAL
DISTRICTS WITH LOCATIONS AND CONFIGURATIONS FOUND APPROPRIATE BY THE
DULY ELECTED MEMBERS OF THE TWO HOUSES OF THE TEXAS LEGISLATURE.  AS WE
HAVE OFTEN NOTED, REAPPORTIONMENT IS A COMPLICATED PROCESS. 
DISTRICTING INEVITABLY HAS SHARP POLITICAL IMPACT AND INEVITABLY
POLITICAL DECISIONS MUST BE MADE BY THOSE CHARGED WITH THE TASK.  SEE
GAFFNEY V. CUMMINGS, SUPRA, AT 753.  HERE THOSE DECISIONS WERE MADE BY
THE LEGISLATURE IN PURSUIT OF WHAT WERE DEEMED IMPORTANT STATE
INTERESTS.  ITS DECISIONS SHOULD NOT BE UNNECESSARILY PUT ASIDE IN THE
COURSE OF FASHIONING RELIEF APPROPRIATE TO REMEDY WHAT WERE HELD TO BE
IMPERMISSIBLE POPULATION VARIATIONS BETWEEN CONGRESSIONAL DISTRICTS. 
PLAN B, AS ALL PARTIES CONCEDED, REPRESENTED AN ATTEMPT TO ADHERE TO
THE DISTRICTING PREFERENCES OF THE STATE LEGISLATURE WHILE ELIMINATING
POPULATION VARIANCES.  INDEED, PLAN B ACHIEVED THE GOAL OF POPULATION
EQUALITY TO A GREATER EXTENT THAN DID PLAN C. DESPITE THE EXISTENCE OF
PLAN B, THE DISTRICT COURT ORDERED IMPLEMENTATION OF PLAN C, WHICH, AS
CONCEDED BY ALL PARTIES, IGNORED LEGISLATIVE DISTRICTING POLICY AND
CONSTRUCTED DISTRICTS SOLELY ON THE BASIS OF POPULATION
CONSIDERATIONS.  THE DISTRICT COURT ERRED IN THIS CHOICE.  GIVEN THE
ALTERNATIVES, THE COURT SHOULD NOT HAVE IMPOSED PLAN C, WITH ITS VERY
DIFFERENT POLITICAL IMPACT, ON THE STATE, IT SHOULD HAVE IMPLEMENTED
PLAN B, WHICH MOST CLEARLY APPROXIMATED THE REAPPORTIONMENT PLAN OF THE
STATE LEGISLATURE, WHILE SATISFYING CONSTITUTIONAL REQUIREMENTS.  THE
COURT SAID ONLY THAT PLAN C IS "SIGNIFICANTLY MORE COMPACT AND
CONTIGUOUS" THAN PLAN B. BUT BOTH PLAN B AND PLAN C FEATURE CONTIGUOUS
DISTRICTS, AND, EVEN IF THE DISTRICTS IN PLAN C CAN BE CALLED MORE
COMPACT, THE DISTRICT COURT'S PREFERENCES DO NOT OVERRIDE WHATEVER
STATE GOALS WERE EMBODIED IN S.B. 1 AND, DERIVATIVELY, IN PLAN B. "THE
REMEDIAL POWERS OF AN EQUITY COURT MUST BE ADEQUATE TO THE TASK, BUT
THEY ARE NOT UNLIMITED.  HERE THE DISTRICT COURT ERRED IN SO BROADLY
BRUSHING ASIDE STATE APPORTIONMENT POLICY WITHOUT SOLID CONSTITUTIONAL
OR EQUITABLE GROUNDS FOR DOING SO,"  WHITCOMB V. CHAVIS, SUPRA, AT
161.  IF THERE WAS A GOOD REASON FOR ADOPTING PLAN C RATHER THAN PLAN
B, THE DISTRICT COURT FAILED TO STATE IT. 

OF COURSE, THE DISTRICT COURT SHOULD DEFER TO STATE POLICY IN
FASHIONING RELIEF ONLY WHERE THAT POLICY IS CONSISTENT WITH
CONSTITUTIONAL NORMS AND IS NOT ITSELF VULNERABLE TO LEGAL CHALLENGE. 
THE DISTRICT COURT SHOULD NOT, IN THE NAME OF STATE POLICY, REFRAIN
FROM PROVIDING REMEDIES FULLY ADEQUATE TO REDRESS CONSTITUTIONAL
VIOLATIONS WHICH HAVE BEEN ADJUDICATED AND MUST BE RECTIFIED.  BUT
HERE, THE DISTRICT COURT DID NOT SUGGEST OR HOLD THAT THE LEGISLATIVE
POLICY OF DISTRICTING SO AS TO PRESERVE THE CONSTITUENCIES OF
CONGRESSIONAL INCUMBENTS WAS UNCONSTITUTIONAL OR EVEN UNDESIRABLE.  WE
REPEAT WHAT WE HAVE SAID IN THE CONTEXT OF STATE LEGISLATIVE
REAPPORTIONMENT:  "THE FACT THAT DISTRICT BOUNDARIES MAY HAVE BEEN
DRAWN IN A WAY THAT MINIMIZES THE NUMBER OF CONTESTS BETWEEN PRESENT
INCUMBENTS DOES NOT IN AND OF ITSELF ESTABLISH INVIDIOUSNESS."  BURNS
V. RICHARDSON, 384 U.S., AT 89 N. 16.  CF. GAFFNEY V. CUMMINGS, SUPRA,
AT 752; TAYLOR V. MCKEITHEN, 407 U.S. 191 (1972).  AN WE NOTE THAT
APPELLEES THEMSELVES SUBMITTED PLAN B TO THE DISTRICT COURT AND
DEFENDED IT ON THE BASIS THAT IT ADHERED TO STATE GOALS, AS EMBODIED IN
S.B. 1, WHILE ELIMINATING IMPERMISSIBLE DEVIATIONS.  /16/ 

THE JUDGMENT OF THE DISTRICT COURT INVALIDATING S.B. 1 IS AFFIRMED. 
THE ADOPTION OF PLAN C IS, HOWEVER, REVERSED, AND THE CASE IS REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

           IT IS SO ORDERED. 

/1/  PRIOR TO THE PASSAGE OF S.B. 1, THE TEXAS SENATE HAD TWICE
DEFEATED REDISTRICTING BILLS, PASSED BY THE HOUSE, WITH TOTAL
DEVIATIONS SMALLER THAN THE TOTAL DEVIATION IN S.B. 1. 

/2/  THE REDISTRICTING OF THE 24 TEXAS CONGRESSIONAL DISTRICTS UNDER
S.B. 1 FOLLOWS:  (TABLE OMITTED) 

/3/  AT A SUBSEQUENT PRETRIAL CONFERENCE, THE FOURTEENTH AMENDMENT
CLAIMS WERE ELIMINATED. 

/4/  PLAN B RESULTED IN THE FOLLOWING DISTRICTING:  (TABLE OMITTED) 

/5/ PLAN C RESULTED IN THE FOLLOWING DISTRICTS:  (TABLE OMITTED) 

/6/  THE DISTRICT COURT'S ENTIRE DISCUSSION OF ITS REASONS FOR
SELECTING PLAN C FOLLOWS: 

"DEFENDANT HAS NOT SUBMITTED ANY PLAN OF REAPPORTIONMENT AS AN
ALTERNATIVE TO S.B. 1.  PLAINTIFFS HAVE PROPOSED TWO PLANS, B AND C.
PLAN B IS BASED ON S.B. 1, BUT HAS A SIGNIFICANTLY LOWER DEVIATION THAT
S.B. 1.  PLAN C IS BASED SOLELY ON POPULATION AND IS SIGNIFICANTLY MORE
COMPACT AND CONTIGUOUS THAN EITHER S.B. 1 OR PLAN B . . . THE COURT HAS
CONSIDERED PLANS B AND C, AS WELL AS THE PLAN SUBMITTED BY THE
INTERVENING PLAINTIFFS, AND CONCLUDES THAT PLAN C BEST EFFECTUATES THE
PRINCIPLE OF 'ONE MAN, ONE VOTE' ENUNCIATED BY THE SUPREME COURT." 

/7/  THE DISTRICT COURT'S ORDER ALSO GRANTED LEAVE TO INTERVENE TO
VAN HENRY ARCHER, CHAIRMAN OF THE BEXAR COUNTY REPUBLICAN PARTY, AND
OTHERS.  THE INTERVENORS, APPELLEES IN THIS COURT, FILED A SUGGESTED
REAPPORTIONMENT PLAN WITH THEIR COMPLAINT-IN-INTERVENTION WHICH WAS
REJECTED BY THE DISTRICT COURT AND IS NOT PRESSED HERE.  THE DISTRICT
COURT ALSO RETAINED JURISDICTION FOR THE PURPOSE OF EXTENDING THE
IMPENDING FEBRUARY 7, 1972, FILING DATE FOR CONGRESSIONAL CANDIDATES
"IN THE EVENT IT IS MADE KNOWN TO (THE DISTRICT) COURT THAT A CALLED
SESSION OF THE LEGISLATURE WILL INCLUDE CONGRESSIONAL
REAPPORTIONMENT."  HOWEVER, THE GOVERNOR REFUSED TO CALL A SPECIAL
SESSION OF THE LEGISLATURE. 

/8/  KIRKPATRICK V. PREISLER "REJECTED) MISSOURI'S ARGUMENT THAT
THERE IS A FIXED NUMERICAL OR PERCENTAGE POPULATION VARIANCE SMALL
ENOUGH TO BE CONSIDERED DE MINIMIS AND TO SATISFY WITHOUT QUESTION THE
'AS NEARLY AS PRACTICABLE' STANDARD."  394 U.S., AT 530.  WE CONCLUDED,
"UNLESS POPULATION VARIANCES AMONG CONGRESSIONAL DISTRICTS ARE SHOWN TO
HAVE RESULTED DESPITE SUCH (GOOD-FAITH) EFFORT, THE STATE MUST JUSTIFY
EACH VARIANCE, NO MATTER HOW SMALL."  ID., AT 531. 

/9/  PRIOR TO THE PASSAGE OF S.B. 1, THE TEXAS HOUSE TWICE PASSED A
CONGRESSIONAL REAPPORTIONMENT BILL WITH LOWER DEVIATIONS.  EACH BILL
HAD A TOTAL DEVIATION OF 2.5%.  ALTHOUGH BOTH BILLS WERE ULTIMATELY
DEFEATED IN THE SENATE, THEIR PASSAGE BY THE HOUSE, AND INDEED THEIR
VERY EXISTENCE, INDICATES THAT IT WAS POSSIBLE AND PRACTICABLE TO
CONSTRUCT A REDISTRICTING SCHEME WITH LOWER POPULATION DEVIATIONS AMONG
DISTRICTS THAN THOSE EMBODIED IN S.B. 1. 

/10/  "APPELLANT EARNESTLY SUBMITS THAT THE TERM 'CONSTITUENCY
REPRESENTATIVE RELATIONS' IS THE MORE ACCURATE TERM; INDEED IT IS VERY
HARD TO SEE WHY THOSE WHO ARE SO CONCERNED ABOUT REPRESENTATION SHOULD
STIGMATIZE AS A MERE EUPHEMISM A TERM WHICH BRINGS IN BOTH PARTIES TO
THE REPRESENTATIONAL RELATIONSHIP . . . (THE ASSUMPTIONS SEEM TO BE
THAT WHILE A CONGRESSMAN MAY LIKE HIS JOB, NO CONSTITUENCY CAN LIKE ITS
CONGRESSMAN, OR CARE WHETHER HE CONTINUES TO REPRESENT IT OR NOT -- AND
THAT NO CONGRESSMAN CAN POSSIBLY LEARN TO KNOW HIS CONSTITUENCY WELL
ENOUGH TO SERVE IT BETTER THAN HE CAN SERVE ANOTHER CONSTITUENCY
SELECTED FOR HIM BY, IT MAY BE, A YOUNG MATHEMATICIAN IN DALLAS.) 
UNDER EITHER NAME, APPELLANT WOULD DEFEND THIS MOTIVE AS ENTIRELY
PROPER, IF THE BURDEN OF THAT DEFENSE FELL UPON HIM ON THE FACTS
HEREIN."  BRIEF FOR APPELLANT 72. 

/11/  IT APPEARS THAT THE TWO PLANS PASSED BY THE HOUSE AND DEFEATED
BY THE SENATE MAY ALSO HAVE FOSTERED THIS GOAL WHILE ACHIEVING LOWER
POPULATION VARIANCES. 

/12/  APPELLANT CONTENDS THAT THE AUTHORS OF S.B. 1, AND THE
LEGISLATURE IN PASSING ON THE PLAN, TOOK INTO ACCOUNT PROJECTED
POPULATION SHIFTS AMONG THE DISTRICTS.  REMEMBERING THAT THE
CONGRESSIONAL DISTRICTING PLAN WILL BE IN EFFECT FOR A LEAST 10 YEARS
AND FIVE CONGRESSIONAL ELECTIONS, THE APPELLANT ARGUES THAT THE
LEGISLATURE MIGHT PROPERLY CONSIDER POPULATION CHANGES IN DEVISING A
REDISTRICTING PLAN.  IN KIRKPATRICK V. PREISLER, WE RECOGNIZED THAT
"(WHERE THESE SHIFTS CAN BE PREDICTED WITH A HIGH DEGREE OF ACCURACY,
STATES THAT ARE REDISTRICTING MAY PROPERLY CONSIDER THEM."  394 U.S.,
AT 535.  WE WERE, HOWEVER, CAREFUL TO NOTE: "BY THIS WE MEAN TO OPEN NO
AVENUE FOR SUBTERFUGE.  FINDINGS AS TO POPULATION TRENDS MUST BE
THOROUGHLY DOCUMENTED AND APPLIED THROUGHOUT THE STATE IN A SYSTEMATIC,
NOT AN AD HOC, MANNER."  IBID. 

IN THE PRESENT CASE, WE CONCLUDE THAT TEXAS' ATTEMPT TO JUSTIFY THE
DEVIATIONS FOUND IN S.B. 1 FALLS FAR SHORT OF THIS STANDARD.  THE
RECORD IS BARREN, WITH THE EXCEPTION OF SCATTERED AND VAGUE ASSERTIONS
IN DEPOSITION TESTIMONY, OF ADEQUATE DOCUMENTATION OF THE PROJECTED
POPULATION SHIFTS AND FIRM EVIDENCE THAT THE ALLEGED SHIFTS WERE IN
FACT RELIED UPON. 

THERE IS ALSO SOME SUGGESTION THAT PASSAGE OF S.B. 1 WAS PRECEDED BY
A DISPUTE AS TO WHO WOULD FILL THE SECOND DISTRICT CONGRESSIONAL THE
DEVIATIONS IN S.B. 1, NOR CAN WE TELL FROM THIS RECORD WHETHER S.B. 1
IN FACT RESOLVED THIS DISPUTE. 

/13/  THE COURT HAD BEFORE IT A PLAN SUBMITTED BY THE PLAINTIFFS
INTERVENORS AND, POSSIBLY, OTHER PLANS.  ONLY PLAN B AND PLAN C APPEAR
TO HAVE BEEN SERIOUSLY URGED BY THE PARTIES AND CONSIDERED BY THE
COURT, AND ONLY THOSE PLANS ARE DEFENDED BEFORE THIS COURT. 

/14/  "PLAN B, PRESENTED BY APPELLEES, MERELY TOOK THE PLAN OF THE
LEGISLATURE AND ADJUSTED THAT PLAN TO ACHIEVE GREATER EQUALITY TO
PRESENT TO THE COURT, IN A GRAPHIC MANNER, WHAT THE LEGISLATURE COULD
HAVE DONE IF IT HAD BEEN DISPOSED TO MAKE AN ATTEMPT AT POPULATION
EQUALITY . . ."  BRIEF FOR APPELLEES 25. 

/15/  APPELLEES' AMENDED COMPLAINT EXPLAINED PLAN C, AS FOLLOWS: 

"THAT HAD THE LEGISLATURE DESIRED TO ENACT A STATUTE CONSONANT WITH
THE MANDATE OF ARTICLE 1, ^ 2 OF THE U.S. CONSTITUTION, THAT IS A PLAN
WHICH MADE EACH DISTRICT AS COMPACT AND CONTIGUOUS AND AS NEARLY EQUAL
IN POPULATION TO EACH OTHER DISTRICT AS PRACTICABLE, TAKING INTO
ACCOUNT SOLELY POPULATION AND NOT TAKING INTO ACCOUNT 'SOCIAL,'
'CULTURAL,' 'ECONOMIC' OR 'OTHER FACTORS' INCLUDING PRESERVATION OF
INCUMBENT CONGRESSMAN, IT COULD HAVE ENACTED A PLAN THE SAME AS OR
SUBSTANTIALLY SIMILAR TO THAT PLAN SET FORTH IN EXHIBIT C ANNEXED
HERETO AND HEREWITH INCORPORATED BY REFERENCE AS THOUGH SET FORTH AT
LENGTH HEREIN.  THAT SUCH PLAN IS HEREINAFTER REFERRED TO AS 'PLAN
C.'" 

/16/  S.B. 1 IS CONCEDED ALSO TO HAVE SOUGHT ADHERENCE TO COUNTY
LINES.  WHILE PLAN B ADMITTEDLY CUTS MORE COUNTY LINES THAN DOES PLAN
C, IT ALSO ACHIEVES LOWER DEVIATIONS.  BECAUSE BOTH PLAN B AND PLAN C
WERE REQUIRED TO FRACTURE MORE POLITICAL BOUNDARIES THAN DID S.B. 1, IN
ORDER TO ACHIEVE POPULATION EQUALITY AMONG DISTRICTS, APPELLANT DOES
NOT CONTEND THAT PLAN B IS UNACCEPTABLE BECAUSE OF MORE CUTTING OF
COUNTY LINES. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, CONCURRING. 

HAD I BEEN A MEMBER OF THE COURT WHEN KIRKPATRICK V. PREISLER, 394
U.S. 526 (1969), AND WELLS V. ROCKEFELLER, 394 U.S. 542 (1969), WERE
DECIDED, I WOULD NOT HAVE THOUGHT THAT THE CONSTITUTION -- A VITAL AND
LIVING CHARTER AFTER NEARLY TWO CENTURIES BECAUSE OF THE WISE
FLEXIBILITY OF ITS KEY PROVISIONS -- COULD BE READ TO REQUIRE A RULE OF
MATHEMATICAL EXACTITUDE IN LEGISLATIVE REAPPORTIONMENT.  MOREOVER, THE
DISSENTING OPINIONS OF JUSTICES HARLAN AND WHITE AND THE CONCURRING
OPINION OF JUSTICE FORTAS IN THOSE CASES DEMONSTRATED WELL THAT THE
EXACTITUDE REQUIRED BY THE MAJORITY DISPLAYED A SERIOUS
MISUNDERSTANDING OF THE PRACTICALITIES OF THE LEGISLATIVE AND
REAPPORTIONING PROCESSES.  NOTHING HAS OCCURRED SINCE KIRKPATRICK AND
WELLS TO REFLECT ADVERSELY ON THE SOUNDNESS, AS I VIEW IT, OF THE
DISSENTING PERCEPTIONS.  INDEED, THE COURT'S RECENT OPINIONS IN MAHAN
V. HOWELL, 410 U.S. 315 (1973), GAFFNEY V. CUMMINGS, ANTE, P. 735, AND
WHITE V. REGESTER, ANTE, P. 755, STRENGTHEN THE CASE AGAINST ATTEMPTING
TO HOLD ANY REAPPORTIONMENT SCHEME -- STATE OR CONGRESSIONAL -- TO
SLIDE-RULE PRECISION.  THESE MORE RECENT CASES HAVE ALLOWED MODEST
VARIATIONS FROM THEORETICAL "EXACTITUDE" IN RECOGNITION OF THE
IMPRACTICALITY OF APPLYING THE KIRKPATRICK RULE AS WELL AS IN DEFERENCE
TO LEGITIMATE STATE INTERESTS. 

HOWEVER ALL OF THIS MAY BE, KIRKPATRICK IS VIRTUALLY
INDISTINGUISHABLE FROM THIS CASE, AND UNLESS AND UNTIL THE COURT
DECIDES TO RECONSIDER THAT DECISION, I WILL FOLLOW IT.  ACCORDINGLY, I
JOIN THE COURT'S OPINION. 

MR. JUSTICE MARSHALL, CONCURRING IN PART. 

WHILE I JOIN PART I OF THE COURT'S OPINION, I CAN AGREE WITH PART II
WHEREIN THE COURT REVERSES THE DISTRICT COURT'S SELECTION OF PLAN C
OVER PLAN B ONLY INSOFAR AS THAT DETERMINATION RESTS UPON THE FACT THAT
PLAN B COMES CLOSER THAN PLAN C TO ACHIEVING THE GOAL OF "PRECISE
MATHEMATICAL EQUALITY," SEE KIRKPATRICK V. PREISLER, 394 U.S. 526, 530
531 (1969).  SEE ALSO WELLS V. ROCKEFELLER, 394 U.S. 542 (1969). 
WHATEVER THE MERITS OF THE VIEW THAT A LEGISLATURE'S REAPPORTIONMENT
PLAN WILL NOT BE STRUCK DOWN MERELY BECAUSE "DISTRICT BOUNDARIES MAY
HAVE BEEN DRAWN IN A WAY THAT MINIMIZES THE NUMBER OF CONTESTS BETWEEN
PRESENT INCUMBENTS,"  BURNS V. RICHARDSON, 384 U.S. 73, 89 N. 16
(1966), IT IS ENTIRELY ANOTHER MATTER TO SUGGEST THAT A FEDERAL
DISTRICT COURT WHICH HAS DETERMINED THAT A PARTICULAR REAPPORTIONMENT
PLAN FAILS TO COMPORT WITH THE CONSTITUTIONAL REQUIREMENT OF "ONE MAN,
ONE VOTE" MUST, IN DRAFTING AND ADOPTING ITS OWN REMEDIAL PLAN, GIVE C
SIDERATION TO THE APPARENT DESIRES OF THE CONTROLLING STATE POLITICAL
POWERS.  IN MY OPINION, THE JUDICIAL REMEDIAL PROCESS IN THE
REAPPORTIONMENT AREA -- AS IN ANY AREA -- SHOULD BE A FASTIDIOUSLY
NEUTRAL AND OBJECTIVE ONE, FREE OF ALL POLITICAL CONSIDERATIONS AND
GUIDED ONLY BY THE CONTROLLING CONSTITUTIONAL PRINCIPLE OF STRICT
ACCURACY IN REPRESENTATIVE APPORTIONMENT.  HERE THE DISTRICT COURT GAVE
AMPLE RECOGNITION TO THE LEGISLATURE'S "PRIMARY RESPONSIBILITY" IN THE
AREA OF APPORTIONMENT WHEN IT ADDED THAT ITS REDISTRICTING ORDER WAS
"WITHOUT PREJUDICE TO THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE
STATE OF TEXAS TO PROCEED WITH THE CONSIDERATION AND ADOPTION OF ANY
OTHER CONSTITUTIONALLY PERMISSIBLE PLAN OF CONGRESSIONAL REDISTRICTING
AT A CALLED OR REGULAR SESSION OF THE LEGISLATURE OF THE STATE OF
TEXAS."  NEVERTHELESS, BECAUSE THE DISTRICT COURT FAILED TO ADHERE
STRICTLY TO THE PRINCIPLE OF MATHEMATICAL PRECISION IN SELECTING
BETWEEN PLAN B AND PLAN C, ITS CHOICE OF PLAN C MUST BE REVERSED. 
4238^9     CHARLES L. BLACK, JR., ARGUED THE CAUSE FOR APPELLANT.  WITH
HIM ON THE BRIEFS WERE CRAWFORD C. MARTIN, FORMER ATTORNEY GENERAL OF
TEXAS, JOHN L. HILL, ATTORNEY GENERAL, JOHN M. BARRON, FIRST ASSISTANT
ATTORNEY GENERAL, AND SAMUEL D. MCDANIEL. 

LAWRENCE FISCHMAN ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS DAVID H. ROSENBERG.  J. DOUGLAS MCGUIRE FILED A BRIEF FOR
APPELLEES VAN HENRY ARCHER, JR., ET AL.
..END :















ATCHISON, T. & S.F.R. CO. V. WICHITA BD. OF TRADE 412 U.S. 800 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF KANSAS 

     NO. 72 - 214.  ARGUED FEBRUARY 28, 1973--DECIDED JUNE 18,
1973;

  352 F.SUPP.  365, AFFIRMED IN PART AND REVERSED IN PART. 
TOGETHER

 WITH NO. 72 - 433, INTERSTATE COMMERCE COMMISSION V. WICHITA

  BOARD OF TRADE ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


    THE INTERSTATE COMMERCE COMMISSION (ICC), AFTER HEARINGS,

  APPROVED IMPOSITION BY APPELLANT RAILROADS OF SEPARATE CHARGES

  FOR INSPECTION OF GRAIN WHILE IN TRANSIT, A SERVICE THAT HAD

  PREVIOUSLY BEEN PROVIDED UNDER THE LINE-HAUL RATES.  APPELLEES

  THEREUPON BROUGHT THIS ACTION IN DISTRICT COURT CONTESTING THE

  VALIDITY OF THE ICC ORDER.  THAT COURT FOUND THAT THE ICC HAD NOT

  ADEQUATELY JUSTIFIED DEPARTURE FROM ITS LONGSTANDING RULE THAT

  SUCH SEPARATE CHARGES ARE UNLAWFUL UNLESS THE CARRIERS CAN

  SATISFY THE BURDEN THAT RESTS UPON THEM OF PROVING THAT THEIR

LINE-HAUL RATES ARE INSUFFICIENT TO COVER THE TOTAL

  TRANSPORTATION SERVICE INCLUDING THE PORTION THEREOF FOR WHICH

SEPARATE CHARGES ARE PROPOSED.  THE COURT ORDERED SUSPENSION OF

  THE IN-TRANSIT CHARGES UNLESS OTHERWISE ORDERED BY THE COURT AND

  REMANDED THE CASE TO THE ICC.  HELD:  THE ACTION OF THE DISTRICT

  COURT IS AFFIRMED AS TO THE REMAND TO THE ICC AND IS REVERSED AS

  TO THE INJUNCTION SUSPENDING THE PROPOSED CHARGES.  PP. 806 -

  826; 828 - 829. 

     MR. JUSTICE MARSHALL, IN AN OPINION JOINED BY THE CHIEF

  JUSTICE, MR. JUSTICE STEWART, AND MR. JUSTICE BLACKMUN, CONCLUDED

  THAT: 

     1.  THE ICC, WHICH JUSTIFIED ITS DEPARTURE FROM ITS PRIOR
CASES

  ON THE GROUND THAT THE MANY RATES INVOLVED RENDERED THE PREVIOUS

  REQUIREMENT IMPRACTICAL AND THE NEW CHARGES WHEN ADDED TO THE

  LINE-HAUL RATES WOULD NOT EXCEED THE ICC-PRESCRIBED MAXIMUM RATE

 LEVEL, HAS NOT STATED ITS APPROVAL OF THE IN-TRANSIT INSPECTION

  CHARGES.  PP. 806 - 817. 

     2.  EQUITABLE CONSIDERATIONS, INCLUDING THE DOCTRINE OF
PRIMARY

  JURISDICTION AS APPLIED TO THE FACTS OF THIS CASE, REQUIRED THAT

THE DISTRICT COURT REFRAIN FROM EXPRESSING A VIEW UPON WHAT IT

  BELIEVED WAS PERMITTED BY NATIONAL TRANSPORTATION POLICY BEFORE

  THE ICC ON REMAND COULD BALANCE THE CONFLICTING INTERESTS OF

  SHIPPERS, RAILROADS, PRODUCERS, AND CONSUMERS IN THE PROPOSED

  RATE CHANGES, CF. ARROW TRANSPORTATION CO. V. SOUTHERN R. CO.,

  372 U.S. 658; HENCE, IT WAS IMPROPER FOR THE DISTRICT COURT TO

  ENJOIN IMPLEMENTATION OF THE PROPOSED NEW CHARGES.  PP. 817 -

  825. 

MR. JUSTICE DOUGLAS CONCURRED IN THE AFFIRMANCE OF THE REMAND TO THE
ICC. 

     MR. JUSTICE WHITE, JOINED BY MR. JUSTICE BRENNAN AND MR.

  JUSTICE REHNQUIST, CONCURRING IN THE REVERSAL OF THE INJUNCTION,

  CONCLUDED THAT ONLY THE ICC WAS GRANTED THE STATUTORY AUTHORITY

  TO SUSPEND NEW FREIGHT RATES FOR SEVEN MONTHS AND THE DISTRICT

  COURT HAS NO POWER TO EXTEND THAT PERIOD.  PP. 828 - 829. 

MARSHALL, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION, IN WHICH BURGER, C. J., AND STEWART AND BLACKMUN, JJ.,
JOINED.  DOUGLAS, J., FILED AN OPINION CONCURRING IN THE AFFIRMANCE OF
THE REMAND TO THE INTERSTATE COMMERCE COMMISSION AND DISSENTING FROM
THE REVERSAL OF THE DECREE AUTHORIZING THE INJUNCTION, POST, P. 826. 
WHITE, J., FILED AN OPINION CONCURRING IN THE REVERSAL OF THE
INJUNCTION AND DISSENTING FROM THE AFFIRMANCE OF THE REMAND TO THE
INTERSTATE COMMERCE COMMISSION, IN WHICH BRENNAN AND REHNQUIST, JJ.,
JOINED, POST, P. 828.  POWELL, J., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASES. 

MR. JUSTICE MARSHALL ANNOUNCED THE JUDGMENT OF THE COURT, AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE STEWART, AND MR.
JUSTICE BLACKMUN JOIN. 

WE NOTED PROBABLE JURISDICTION IN THESE CASES TO RESOLVE TWO
IMPORTANT QUESTIONS RELATING TO THE PROPER ROLE OF COURTS IN REVIEWING
APPROVAL BY THE INTERSTATE COMMERCE COMMISSION OF PROPOSED RATE
INCREASES BY RAILROADS.  409 U.S. 1005 (1972).  FIRST, UNDER WHAT
CIRCUMSTANCES MAY A REVIEWING COURT FIND THAT THE COMMISSION HAS FAILED
ADEQUATELY TO EXPLAIN ITS APPARENT DEPARTURE FROM SETTLED COMMISSION
PRECEDENT?  BECAUSE THE PROBLEM OF DETERMING WHAT POLICIES AN AGENCY IS
FOLLOWING, AS A PRELUDE TO DETERMINING WHETHER THE AGENCY IS ACTING IN
ACCORDANCE WITH CONGRESS' WILL, IS A RECURRING ONE, THIS ISSUE RAISES
GENERAL PROBLEMS OF JUDICIAL REVIEW OF AGENCY ACTION.  THE SECOND
QUESTION IN THESE CASES IS A MORE LIMITED ONE:  IN ORDER TO ENJOIN A
PROPOSED RATE INCREASE AFTER A FINAL ORDER BY THE INTERSTATE COMMERCE
COMMISSION, WHAT SORT OF ERROR MUST A DISTRICT COURT FIND IN THE
PROCEEDINGS OF THE COMMISSION?  WE HOLD THAT IN THESE CASES THE
COMMISSION DID NOT EXPLAIN ITS APPARENT DEPARTURE FROM PRECEDENT IN A
MANNER SUFFICIENT TO PERMIT JUDICIAL REVIEW OF ITS POLICIES, BUT THAT,
NEVERTHELESS, THAT KIND OF ERROR DOES NOT JUSTIFY THE DISTRICT COURT IN
ENTERING AN INJUNCTION AGAINST IMPOSITION OF THE RATES PENDING REVIEW
OF THE COMMISSION'S ACTION ON REMAND.  WE THEREFORE VACATE THE JUDGMENT
OF THE DISTRICT COURT AND REMAND FOR THE ENTRY OF A PROPER ORDER.  /1/

        I 

IN THESE CASES, THE RAILROADS PROPOSED TO ESTABLISH A SEPARATE
CHARGE FOR INSPECTION OF GRAIN WHILE IN TRANSIT.  /2/  IN ORDER TO
INSPECT THE GRAIN, THE RAILROAD CARS LOADED WITH IT ARE STOPPED AND
PLACED ON TRACK FACILITIES.  A SAMPLE OF THE GRAIN IS TAKEN, AND THE
OFFICIAL GRADE IS DETERMINED.  ONCE THE GRADE IS KNOWN AND THE
COMMERCIAL VALUE OF THE GRAIN ESTABLISHED, THE SHIPPER ORDERS THE CAR
TO PROCEED TO THE APPROPRIATE MARKET.  IN-TRANSIT INSPECTIONS HAVE
SUBSTANTIAL ADVANTAGES TO SHIPPERS OVER INSPECTION AT THE DESTINATION. 
IF THE GRAIN WERE TO BE FOUND TO BE OF A DIFFERENT GRADE THAN EXPECTED
ONLY AFTER ARRIVAL AT THE DESTINATION, SENDING IT TO ANOTHER MARKET
MIGHT BE QUITE EXPENSIVE.  THE ADVANTAGES OF IN-TRANSIT INSPECTIONS TO
PURCHASERS, INSTEAD OF INSPECTION AT THE SOURCE THAT MIGHT SATISFY
SHIPPERS, ARE LESS MARKED BUT ARE NONETHELESS SIGNIFICANT.  THE GRAIN
MIGHT DETERIORATE WHILE IN TRANSIT, THUS LEAVING THE PURCHASER WITH
GRAIN OF A LOWER QUALITY THAN HE EXPECTED.  AND THE POSSIBILITY OF BIAS
OF THE INSPECTOR IS GREATER IF THE INSPECTION IS MADE AT THE SOURCE. 

THE COMMISSION FOUND THAT "THE ORDERLY MARKETING OF GRAIN UNDER
PRESENT PRACTICES REQUIRES THAT A SUBSTANTIAL PORTION OF THE COMMODITY
MOVING IN COMMERCIAL CHANNELS MUST BE SUBJECTED TO SOME FORM OF
SAMPLING AND INSPECTION TO DETERMINE GRADE OR QUALITY."  339 I.C.C.
364, 385 (1971).  /3/  HOWEVER, IT ALSO FOUND THAT THIS SAMPLING NEED
NOT TAKE PLACE WHILE THE GRAIN IS IN TRANSIT.  THE PRACTICE OF IN
TRANSIT INSPECTIONS DEVELOPED WHEN FEDERAL LAW REQUIRED INSPECTIONS FOR
THE PURPOSE OF GRADING.  39 STAT. 483.  BUT THE DIVERSION OF GRAIN FROM
RAILROADS TO MOTOR TRUCKS MADE IT DIFFICULT TO ENFORCE THE INSPECTION
REQUIREMENTS.  WHEN TRUCKS ARE USED, IN-TRANSIT INSPECTIONS ARE NOT
GENERALLY MADE.  THUS, IN ORDER TO SIMPLIFY THE MOVEMENT OF GRAIN,
CONGRESS ABOLISHED THE REQUIREMENT OF INSPECTIONS.  PUB. L. 90 - 487,
82 STAT. 761.  IN ADDITION, THE CONVENIENCE OF SAMPLING AT THE SOURCE
OF THE GRAIN HAS INCREASED WITH THE WIDENING RELIANCE ON LOW-COST
MECHANICAL SAMPLERS INSTALLED AT GRAIN ELEVATORS.  THE COMMISSION
THEREFORE CONCLUDED THAT IN-TRANSIT INSPECTIONS WERE NOT NECESSARY FOR
THE ORDERLY MARKETING OF GRAIN. 

IT ALSO CONCLUDED THAT IN-TRANSIT INSPECTIONS RESULTED IN A
SUBSTANTIAL DECREASE IN THE NUMBER OF FREIGHT CARS AVAILABLE FOR
GENERAL USE.  /4/  RELYING ON A VARIETY OF STUDIES CONDUCTED BY THE
RAILROADS, THE COMMISSION FOUND THAT EACH INSPECTION KEPT A FREIGHT CAR
OUT OF USE FOR ROUGHLY THREE DAYS, AND THAT THE CUMULATIVE IMPACT OF
THE DELAYS DUE TO IN-TRANSIT INSPECTION WAS TO REDUCE THE AVAILABLE
FREIGHT CAR FLEET BY SEVERAL THOUSAND CARS. 

FINALLY, THE COMMISSION CONSIDERED WHETHER THE PROPOSED SEPARATE
CHARGE FOR EACH IN-TRANSIT INSPECTION FAIRLY REFLECTED THE COST TO THE
RAILROAD OF SUCH AN INSPECTION.  AGAIN, IT RELIEF ON QUITE DETAILED
STUDIES THAT ESTABLISHED THE COST OF DETAINING A CAR, THE COST OF
SWITCHING IT ON AND OFF THE MAIN LINE, AND THE CLERICAL COSTS OF
CONDUCTING INSPECTIONS.  THE COMMISSION CONCLUDED THAT THE PROPOSED
CHARGES WERE "NOT EXCESSIVE IN AMOUNT . . . ON THE BASIS OF THE
CONVINCING EVIDENCE OF RECORD SHOWING THE COSTS SUSTAINED BY THE
RAILROADS IN PERFORMING THE IN-TRANSIT INSPECTION SERVICE."  340
I.C.C., AT 71 - 72. 

SHIPPERS WHO HAD OBJECTED TO THE PROPOSED NEW CHARGES BEFORE THE
COMMISSION SOUGHT REVIEW OF THE COMMISSION'S ORDER, AND A STATUTORY
THREE-JUDGE DISTRICT COURT WAS CONVENED.  THE DISTRICT COURT FOUND THAT
THESE CONCLUSIONS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE, AND THEY ARE
NOT CHALLENGED HERE.  BUT THE DISTRICT COURT HELD THAT THE COMMISSION
HAD NOT ADEQUATELY JUSTIFIED ITS FAILURE TO FOLLOW "ITS LONG
ESTABLISHED RULE THAT IT WILL NOT ALLOW A SEPARATE CHARGE FOR AN
ACCESSORIAL SERVICE PREVIOUSLY PERFORMED AS PART OF THE LINE-HAUL RATES
WITHOUT SUBSTANTIAL EVIDENCE THAT SUCH AN ADDITIONAL CHARGE IS
JUSTIFIED MEASURED AGAINST THE OVERALL SERVICES RENDERED AND THE
OVERALL REASONABLENESS OF THE INCREASED LINE-HAUL RATE RESULTING
THEREFROM."  352 F. SUPP. 365, 368.  THE COMMISSION, ALTHOUGH IT
ANALYZED THE COST OF EACH IN-TRANSIT INSPECTION, HAD MADE NO ATTEMPT TO
CONSIDER THE REASONABLENESS OF CONTINUING THE EXISTING LINE-HAUL RATE,
WHICH INCLUDED SOME CHARGE FOR IN-TRANSIT INSPECTIONS.  INSTEAD, THE
COMMISSION HAD ATTEMPTED TO DISTINGUISH THIS CASE FROM PRIOR CASES IN
WHICH THE RULE WAS INVOKED, BUT THE DISTRICT COURT, RELYING ON
SECRETARY OF AGRICULTURE V. UNITED STATES, 347 U.S. 645 (1954), WAS
"NOT CONVINCED THAT THE INSTANT PROCEEDING CAN BE 'DISTINGUISHED' AS
THE COMMISSION HAS INDICATED."  352 F. SUPP., AT 369. 

ALTHOUGH THE COMMISSION MUST BE GIVEN SOME LEEWAY TO RE-EXAMINE AND
REINTERPRET ITS PRIOR HOLDINGS, IT IS NOT SUFFICIENTLY CLEAR FROM ITS
OPINION THAT IT HAS DONE SO IN THIS CASE.  A REVIEWING COURT MUST BE
ABLE TO DISCERN IN THE COMMISSION'S ACTIONS THE POLICY IT IS NOW
PURSUING, SO THAT IT MAY COMPLETE THE TASK OF JUDICIAL REVIEW -- IN
THIS REGARD, TO DETERMINE WHETHER THE COMMISSIONS' POLICIES ARE
CONSISTENT WITH ITS MANDATE FROM CONGRESS.  SINCE WE CANNOT TELL FROM
THE COMMISSION'S OPINIONS WHAT THOSE POLICIES ARE, WE THEREFORE AGREE
WITH THE DISTRICT COURT THAT THE COMMISSION'S ORDER FINDING THE RATES
JUST AND REASONABLE CANNOT BE SUSTAINED. 

    II 

JUDICIAL REVIEW OF DECISIONS BY THE INTERSTATE COMMERCE COMMISSION
IN RATE CASES NECESSARILY HAS A LIMITED SCOPE.  SUCH DECISIONS "ARE NOT
TO BE DISTURBED BY THE COURTS EXCEPT UPON A SHOWING THAT THEY ARE
UNSUPPORTED BY EVIDENCE, WERE MADE WITHOUT A HEARING, EXCEED
CONSTITUTIONAL LIMITS, OR FOR SOME OTHER REASON AMOUNT TO AN ABUSE OF
POWER."  MANUFACTUERES R. CO. V. UNITED STATES, 246 U.S. 457, 481
(1918).  /5/  AS THIS COURT HAS OBSERVED, "THE PROCESS OF RATE MAKING
IS ESSENTIALLY EMPIRIC.  THE STUFF OF THE PROCESS IS FLUID AND CHANGING
-- THE RESULTANT OF FACTORS THAT MUST BE VALUED AS WELL AS WEIGHED. 
CONGRESS HAS THEREFORE DELEGATED THE ENFORCEMENT OF TRANSPORTATION
POLICY TO A PERMANENT EXPERT BODY AND HAS CHARGED IT WITH THE DUTY OF
BEING RESPONSIVE TO THE DYNAMIC CHARACTER OF TRANSPORTATION PROBLEMS." 
BOARD OF TRADE OF KANSAS CITY V. UNITED STATES, 314 U.S. 534, 546
(1942). 

THE DELEGATION TO THE COMMISSION IS NOT, OF COURSE, UNBOUNDED, AND
IT IS THE DUTY OF A REVIEWING COURT TO DETERMINE WHETHER THE COURSE
FOLLOWED BY THE COMMISSION IS CONSISTENT WITH ITS MANDATE FROM
CONGRESS.  SEE ICC V. INLAND WATERWAYS CORP., 319 U.S. 671, 691 (1943);
BURLINGTON TRUCK LINES, INC. V. UNITED STATES, 371 U.S. 156, 167 - 169
(1962).  CF. NLRB V. WYMAN-GORDON CO., 394 U.S. 759, 767 (1967)
(OPINION OF FORTAS, J.).  BUT A SIMPLE EXAMINATION OF THE ORDER BEING
REVIEWED IS FREQUENTLY INSUFFICIENT TO REVEAL THE POLICIES THAT THE
COMMISSION IS PURSUING.  THUS, THIS COURT HAS RELIED ON THE "SIMPLE BUT
FUNDAMENTAL RULE OF ADMINISTRATIVE LAW," SEC V. CHENERY CORP., 332 U.S.
194, 196 (1947), THAT THE AGENCY MUST SET FORTH CLEARLY THE GROUNDS ON
WHICH IT ACTED.  FOR "(WE MUST KNOW 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, 511 (1935).  SEE ALSO
PHELPS DODGE CORP. V. NLRB, 313 U.S. 177, 197 (1941); SEC V. CHENERY
CORP., 318 U.S. 80, 94 (1943).  AND WE MUST RELY ON THE RATIONALE
ADOPTED BY THE AGENCY IF WE ARE TO GUARANTEE THE INTEGRITY OF THE
ADMINISTRATIVE PROCESS.  ID., AT 88.  CF. NLRB V. METROPOLITAN LIFE
INS. CO., 380 U.S. 438, 443 - 444 (1965).  ONLY IN THAT WAY MAY WE
"GUARD AGAINST THE DANGER OF SLIDING UNCONSCIOUSLY FROM THE NARROW
CONFINES OF LAW INTO THE MORE SPACIOUS DOMAIN OF POLICY."  PHELPS DODGE
CORP. V. NLRB, SUPRA, AT 194. 

AN AGENCY "MAY ARTICULATE THE BASIS OF ITS ORDER BY REFERENCE TO OTHER
DECISIONS," NLRB V. METROPOLITAN LIFE INS. CO., SUPRA, AT 443 N. 6. 
FOR "(ADJUDICATED CASES MAY AND DO, OF COURSE, SERVE AS VEHICLES FOR
THE FORMULATION OF AGENCY POLICIES, WHICH ARE APPLIED AND ANNOUNCED
THEREIN.  SEE H. FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES 36 - 52
(1962).  THEY GENERALLY PROVIDE A GUIDE TO ACTION THAT THE AGENCY MAY
BE EXPECTED TO TAKE IN FUTURE CASES.  SUBJECT TO THE QUALIFIED ROLE OF
STARE DECISIS IN THE ADMINISTRATIVE PROCESS, THEY MAY SERVE AS
PRECEDENTS."  NLRB V. WYMAN-GORDON CO., SUPRA, AT 765 - 766 (OPINION OF
FORTAS, J.).  THIS IS ESSENTIALLY A COROLLARY OF THE GENERAL RULE
REQUIRING THAT THE AGENCY EXPLAIN THE POLICIES UNDERLYING ITS ACTION. 
A SETTLED COURSE OF BEHAVIOR EMBODIES THE AGENCY'S INFORMED JUDGMENT
THAT, BY PURSUING THAT COURSE, IT WILL CARRY OUT THE POLICIES COMMITTED
TO IT BY CONGRESS. 

THERE IS, THEN, AT LEAST A PRESUMPTION THAT THOSE POLICIES WILL BE
CARRIED OUT BEST IF THE SETTLED RULE IS ADHERED TO.  FROM THIS
PRESUMPTION FLOWS THE AGENCY'S DUTY TO EXPLAIN ITS DEPARTURE FROM PRIOR
NORMS.  SECRETARY OF AGRICULTURE V. UNITED STATES, SUPRA, AT 653.  THE
AGENCY MAY FLATLY REPUDIATE THOSE NORMS, DECIDING, FOR EXAMPLE, THAT
CHANGED CIRCUMSTANCES MEAN THAT THEY ARE NO LONGER REQUIRED IN ORDER TO
EFFECTUATE CONGRESSIONAL POLICY.  OR IT MAY NARROW THE ZONE IN WHICH
SOME RULE WILL BE APPLIED, BECAUSE IT APPEARS THAT A MORE
DISCRIMINATING INVOCATION OF THE RULE WILL BEST SERVE CONGRESSIONAL
POLICY.  OR IT MAY FIND THAT, ALTHOUGH THE RULE IN GENERAL SERVES
USEFUL PURPOSES, PECULIARITIES OF THE CASE BEFORE IT SUGGEST THAT THE
RULE NOT BE APPLIED IN THAT CASE.  WHATEVER THE GROUND FOR THE
DEPARTURE FROM PRIOR NORMS, HOWEVER, IT MUST BE CLEARLY SET FORTH SO
THAT THE REVIEWING COURT MAY UNDERSTAND THE BASIS OF THE AGENCY'S
ACTION AND SO MAY JUDGE THE CONSISTENCY OF THAT ACTION WITH THE
AGENCY'S MANDATE. 

A FURTHER COMPLICATION ARISES WHEN, AS HERE, THE AGENCY
DISTINGUISHES EARLIER CASES IN WHICH IT INVOKED THE RULE.  AN INITIAL
STEP, AND OFTEN THE ONLY ONE CLEARLY TAKEN, IS TO SPECIFY FACTUAL
DIFFERENCES BETWEEN THE CASES.  THOSE FACTUAL DIFFERENCES SERVE TO
DISTINGUISH THE CASES ONLY WHEN SOME LEGISLATIVE POLICY MAKES THE
DIFFERENCES RELEVANT TO DETERMINING THE PROPER SCOPE OF THE PRIOR
RULE.  IT IS ALL TOO EASY FOR A COURT TO JUDGE THE ADEQUACY OF AN
ASSERTED DISTINCTION IN LIGHT OF THE POLICIES THE COURT, RATHER THAN
THE AGENCY, SEEKS TO IMPLEMENT; THAT IS, AFTER ALL, WHAT AN APPELLATE
COURT DOES WITH RESPECT TO COURTS OF THE FIRST INSTANCE.  YET WHEN AN
AGENCY'S DISTINCTION OF ITS PRIOR CASES IS FOUND INADEQUATE, THE
REVIEWING COURT MAY INADVERTENTLY ADOPT THE STANCE IT ORDINARILY TAKES
WITH RESPECT TO OTHER COURTS, AND THEREBY MAY INVADE "THE DOMAIN WHICH
CONGRESS HAS SET ASIDE EXCLUSIVELY FOR THE ADMINISTRATIVE AGENCY," SEC
V. CHENERY CORP., SUPRA, AT 196, THAT IS, THE CHOICE OF PARTICULAR
ACTIONS TO CARRY OUT THE BROAD POLICIES STATED BY CONGRESS.  INSTEAD,
IT IS ENOUGH TO SATISFY THE REQUIREMENTS OF JUDICIAL OVERSIGHT OF
ADMINISTRATIVE ACTION IF THE AGENCY ASSERTS DISTINCTIONS THAT, WHEN
FAIRLY AND SYMPATHETICALLY READ IN THE CONTEXT OF THE ENTIRE OPINION OF
THE AGENCY, REVEAL THE POLICIES IT IS PURSUING.  SO LONG AS THE
POLICIES CAN BE DISCERNED, THE COURT MAY EXERCISE ITS PROPER FUNCTION
OF DETERMINING WHETHER THE AGENCY'S POLICIES ARE CONSISTENT WITH
CONGRESSIONAL DIRECTIVES. 

THESE PRINCIPLES GAIN CONTENT WHEN APPLIED TO THE PRESENT CASES. 
THE DISTRICT COURT HELD THAT THE COMMISSION HAD NOT REPUDIATED OR
ADEQUATELY DISTINGUISHED ITS PRIOR CASES ESTABLISHING THE RULE THAT "IT
WILL NOT ALLOW A SEPARATE CHARGE FOR AN ACCESSORIAL SERVICE PREVIOUSLY
PERFORMED AS PART OF THE LINE-HAUL RATES WITHOUT SUBSTANTIAL EVIDENCE
THAT SUCH AN ADDITIONAL CHARGE IS JUSTIFIED MEASURED AGAINST THE
OVERALL SERVICES RENDERED AND THE OVERALL REASONABLENESS OF THE
INCREASED LINE-HAUL RATE RESULTING THEREFROM."  352 F. SUPP., AT 368. 
WHILE THIS IS A FAIR SUMMARY OF THE COMMISSION'S ESTABLISHED PRACTICE,
/6/  IT CONCEALS THE APPARENT PURPOSE OF THE RULE, TO PROTECT TWO
DISTINCT CLASSES:  SHIPPERS WHO WILL CONTINUE TO UTILIZE THE
ACCESSORIAL SERVICE -- IN THIS CASE, THOSE WHO WILL STILL HAVE THEIR
GRAIN INSPECTED WHILE IN TRANSIT -- AND SHIPPERS WHO WILL NOT.  TO
DECIDE WHETHER THE COMMISSION HAS ADEQUATELY EXPLAINED ITS FAILURE TO
FOLLOW THAT RULE, WE MUST CONSIDER EACH CLASS IN TURN, FOR THE
COMMISSION MAY HAVE MADE CLEAR WHY IT NEED NOT PROTECT ONE CLASS BY
INVOKING THE RULE BUT IT MAY NONETHELESS HAVE FAILED TO SAY WHY IT NEED
NOT PROTECT THE OTHER CLASS. 

IN UNLOADING LUMBER TO NEW YORK HARBOR, 256 I.C.C. 463 (1943), THE
COMMISSION DEALT WITH A PROPOSAL TO CHARGE SEPARATELY FOR UNLOADING, A
SERVICE THAT WAS INEXTRICABLY BOUND UP WITH THE LINE-HAUL SERVICE.  CF.
SECRETARY OF AGRICULTURE V. UNITED STATES, SUPRA, AT 648 - 649.  THE
COMMISSION SAID, "IT FOLLOWS THAT RESPONDENTS MAY NOT NOW SEGREGATE A
COMPONENT OF THAT (LINE-HAUL) SERVICE, MAKING A SEPARATE CHARGE
THEREFOR, WITHOUT AN ADEQUATE SHOWING THAT THE AGGREGATE CHARGE FOR THE
THROUGH SERVICE IS REASONABLE."  256 I.C.C., AT 468.  THE EXPLICIT
PURPOSE OF THE RULE IN THIS SITUATION IS TO GUARANTEE THAT SHIPPERS
RECEIVING THE SAME SERVICE THAT THEY HAD PREVIOUSLY RECEIVED DO NOT PAY
AN UNREASONABLE AMOUNT.  SEE ALSO DULUTH DOCKAGE ABSORPTION, 44 I.C.C.
300 (1917), TERMINAL CHARGES AT PACIFIC COAST PORTS, 255 I.C.C. 673,
682 (1943).  THE RULE, IN THIS REGARD, IS THAT THE RAILROADS MUST
DEMONSTRATE BOTH THAT THE PROPOSED CHARGE IS REASONABLE IN LIGHT OF THE
COSTS OF THE SEPARATE SERVICE, AND THAT THE TOTAL CHARGE FOR LINE-HAUL
PLUS THE SEPARATE SERVICE IS REASONABLE. 

THE COMMISSION JUSTIFIED ITS DEPARTURE FROM ITS PRIOR CASES BY
GIVING TWO REASONS THAT RELATE TO THIS ASPECT OF THE RULE.  FIRST, IT
NOTED THAT "(THE LINE-HAUL RATES APPLICABLE ON THE GRAIN TO, FROM, AND
THROUGH (THE) INSPECTION POINTS NUMBER IN THE THOUSANDS AND, BECAUSE OF
THE COMPLEXITIES OF THE GRAIN RATE STRUCTURE, VARY TO A LARGE DEGREE." 
THUS, APPLYING THE GENERAL RULE "EFFECTIVELY PRECLUDES RESPONDENTS FROM
EVER ESTABLISHING A SEPARATE CHARGE FOR THE ACCESSORIAL FIRST STOP FOR
INSPECTION REGARDLESS OF THE NEED FOR SUCH A CHARGE."  SECOND, THE
COMMISSION SAID THAT "THE LINE-HAUL RATE APPLICABLE TO ANY MOVEMENT OF
GRAIN . . . WHEN COUPLED WITH THE PROPOSED CHARGE IS LESS THAN THE
MAXIMUM REASONABLE LEVEL DETERMINED BY THIS COMMISSION.  IN NO INSTANCE
WILL THE COMBINED RATE AND CHARGE EXCEED THE MAXIMUM LEVEL PRESCRIBED
IN GRAIN AND GRAIN PRODUCTS, (205 I.C.C. 301 (1934) AND 215 I.C.C. 83
(1936))."  339 I.C.C., AT 286 - 387. 

THE MAXIMUM RATES PRESCRIBED IN GRAIN AND GRAIN PRODUCTS HAVE BEEN
SUBJECTED TO A LARGE NUMBER OF GENERAL RATE INCREASES.  /7/  SEE, E.G.,
EX PARTE NOS. 265 AND 267, INCREASED FREIGHT RATES, 1970 AND 1971, 339
I.C.C. 125 (1971).  IN THOSE PROCEEDINGS, THE COMMISSION'S FOCUS IS ON
THE GENERAL REVENUE NEEDS OF THE RAILROADS.  ACROSS-THE-BOARD
PERCENTAGE INCREASES ARE PERMITTED WITHOUT DETAILED EXAMINATION OF
INDIVIDUAL RATES.  AS A RESULT, THERE MAY BE SPECIFIC ROUTES ON WHICH
THE MAXIMUM IS IN FACT UNREASONABLE, BECAUSE, FOR EXAMPLE, THE COSTS OF
OPERATING THOSE ROUTES HAVE NOT INCREASED AS RAPIDLY AS THE COSTS
ELSEWHERE.  THUS, THE COMMISSION HAS HELD THAT ITS APPROVAL OF A
GENERAL INCREASE "DOES NOT HAVE THE EFFECT OF APPROVING ANY PARTICULAR
INCREASED RATE AS NOT BEING IN EXCESS OF A MAXIMUM REASONABLE RATE." 
COAL FROM ILLINOIS TO ALTON AND EAST ST. LOUIS, 274 I.C.C. 637, 670
(1949).  SEE ALSO TENNESSEE PRODUCE & CHEMICAL CORP. V. ALABAMA G.S.R.
CO., 277 I.C.C. 207 (1950); BRIMSTONE R. CO. V. UNITED STATES, 276 U.S.
104 (1928).  HOWEVER, IN OTHER CONTEXTS, THE COMMISSION HAS TREATED THE
PRESCRIBED RATES AS MODIFIED BY GENERAL INCREASES AS "THE BEST EVIDENCE
OF THE REASONABLENESS OF CORRESPONDING RATES ON A . . . DATE" AFTER THE
GENERAL INCREASE.  AGSCO CHEMICALS, INC. V. ALABAMA G.S.R. CO., 314
I.C.C. 725, 733 (1961).  CF. PUBLIC SERVICE COMM'N OF NORTH DAKOTA V.
GREAT NORTHERN R. CO., 340 I.C.C. 739, 750 (1972). 

THE COMMISSION THUS HAS NOT DETERMINED THAT A RATE WHICH DOES NOT
EXCEED THE CURRENT GENERAL MAXIMUM IS REASONABLE.  A SHIPPER CAN
CHALLENGE ANY SUCH RATE AS UNREASONABLE AND, IF HE SUCCEEDS, MAY
RECOVER REPARATIONS.  IN ADDITION, THE COMMISSION MAY PRESCRIBE A RATE
TO BE CHARGED IN THE FUTURE.  49 U.S.C. ^^ 8, 9, 13 (1), 15 (1); ICC V.
INLAND WATERWAYS CORP., 319 U.S. 671, 687 (1943).  IN SUCH PROCEEDINGS,
THE SHIPPER MUST SHOW THAT THE RATE CHARGED WAS UNREASONABLE.  CF.
LOUISVILLE & N.R. CO. V. UNITED STATES, 238 U.S. 1 (1915); SHAW
WAREHOUSE CO. V. SOUTHERN R. CO., 288 F.2D 759 (CA5 1961).  /8/  IN
CONTRAST, WHEN A PROPOSED RATE INCREASE IS CHALLENGED BY A SHIPPER
BEFORE IT GOES INTO EFFECT, "THE BURDEN OF PROOF SHALL BE UPON THE
CARRIER TO SHOW THAT THE PROPOSED CHANGED RATE . . . IS JUST AND
REASONABLE."  49 U.S.C. ^ 15 (7).  /9/ 

THE COMMISSION IN THIS LITIGATION REFERRED TO THE BURDEN THAT
APPLYING THE RULE WOULD PLACE ON THE RAILROADS.  IT RATHER CLEARLY
INTENDED BY THIS TO SUGGEST THAT THE IMPORTANCE OF IMPLEMENTING THE NEW
CHARGES AND SO OF INCREASING THE SUPPLY OF AVAILABLE FREIGHT CARS
JUSTIFIED SOME MODIFICATION OF ITS USUAL ALLOCATION OF THE BURDEN OF
GOING FORWARD.  INSTEAD OF REQUIRING THE RAILROADS TO PRODUCE
SUBSTANTIAL EVIDENCE THAT THE TOTAL CHARGES WERE REASONABLE, IT WOULD
LEAVE THAT DETERMINATION TO LATER PROCEEDINGS IN WHICH A SHIPPER
SEEKING REPARATIONS MIGHT POINT TO PARTICULAR INDIVIDUAL CHARGES AS
UNREASONABLE. 

IF THIS WERE ALL THAT WAS AT STAKE, THE COMMISSION WOULD HAVE
ADEQUATELY IDENTIFIED THE CONCERNS BEHIND ITS COURSE -- IN LIGHT OF THE
PRESSING NEED TO INCREASE THE FREIGHT CAR SUPPLY, IT WAS NOT TOO MUCH
TO REQUIRE THAT SHIPPERS CARRY THE BURDEN OF GOING FORWARD.  SUCH AN
ASSESSMENT WOULD SURELY PERMIT A REVIEWING COURT TO DETERMINE WHETHER
THE COMMISSION'S ACTION WAS CONSISTENT WITH CONGRESSIONAL
TRANSPORTATION POLICY.  UNFORTUNATELY, THOUGH, THE CHANGE INVOLVED IN
MAKING THE SHIPPERS CLAIM THAT PARTICULAR RATES ARE UNREASONABLE IS NOT
ALL THAT IS AT STAKE.  FOR IN PROCEEDINGS FOR REPARATIONS, THERE IS
ALSO A CHANGE IN THE BURDEN OF PROOF:  THE SHIPPER MUST PRODUCE
SUBSTANTIAL EVIDENCE THAT THE RATE IS UNREASONABLE.  THIS WOULD APPEAR
TO AFFECT THE LIKELIHOOD THAT THE SHIPPER WILL PREVAIL.  THERE IS A
ZONE IN WHICH RATES ARE REASONABLE, UNITED STATES V. CHICAGO, M., ST.P.
& P.R. CO., 294 U.S. 499, 506 (1935), AND IT WOULD SEEM TO BE HARDER TO
ESTABLISH THAT THE PROPOSED RATES FELL OUTSIDE THAT ZONE THAN THAT THEY
FELL WITHIN IT.  OR SO CONGRESS BELIEVED, FOR IT SPECIFIED THE
ALLOCATION OF THE BURDEN OF PROOF IN SUSPENSION PROCEEDINGS AS PART OF
THE COST TO THE CARRIERS; IN RETURN FOR CONFINING THE POWER TO SUSPEND
RATES TO THE COMMISSION, AND SO OF ELIMINATING THE THREAT OF LONG-DRAWN
OUT INJUNCTIVE PROCEEDINGS IN THE COURTS, CONGRESS MADE THE CARRIERS
CARRY A BURDEN OF PROOF THAT WOULD OTHERWISE NOT HAVE BEEN THEIRS.  CF.
PART III, INFRA.  /10/ 

THE COMMISSION DID NOT SUGGEST THAT ITS APPROVAL OF THE PROPOSED
RATES ON THE GROUNDS IT GAVE WOULD ALTER THE USUAL PRACTICE IN ACTIONS
FOR REPARATIONS.  NOR DID IT SAY WHY THE NEED FOR AN INCREASED SUPPLY
OF FREIGHT CARS JUSTIFIED A SIGNIFICANT CHANGE IN THE BURDEN OF PROOF. 
IN THIS SENSE, THE COMMISSION'S ACTION WAS, AS THE DISTRICT COURT
NOTED, "DISCRIMINATORY PER SE." 

IT IS EVEN HARDER TO UNDERSTAND FROM THE COMMISSION'S OPINION WHY IT
DEPARTED FROM THE RULE IN PRIOR CASES PROTECTING SHIPPERS WHO DECIDE
NOT TO HAVE IN-TRANSIT INSPECTIONS.  IF THE SEPARATE CHARGES ARE TO BE
EFFECTIVE IN ALLEVIATING THE CAR-SHORTAGE PROBLEM, THERE MUST BE A
SUBSTANTIAL NUMBER OF SHIPPERS WHO DO NOT SEEK IN-TRANSIT INSPECTIONS. 
YET ACCORDING TO THE COMMISSION, THE RAILROADS NEED NOT SHOW THAT THE
PRESENT LINE-HAUL RATES ARE REASONABLE CHARGES FOR THE SERVICES
PROVIDED TO SHIPPERS WHO DO NOT SEEK IN-TRANSIT INSPECTIONS.  IT WOULD
APPEAR, THUS, THAT THE COMMISSION HAS APPROVED A POLICY THAT
DISCRIMINATES AGAINST WHAT IT HOPES WILL BE A VERY LARGE NUMBER OF
SHIPPERS; IT SEEMS TO HAVE TRIED TO JUSTIFY ITS POLICY BY CITING
REASONS THAT AFFECT ONLY A MUCH SMALLER CLASS. 

SOME OF THE SHIPPERS WHO PREVIOUSLY SOUGHT IN-TRANSIT INSPECTIONS
WILL NO LONGER DO SO.  OTHERS HAD THE OPPORTUNITY FOR SUCH
INSPECTIONS.  NOW THE RAILROADS PROPOSE TO ELIMINATE SOME OF THE
SERVICE PREVIOUSLY PROVIDED, YET CHARGE THE SAME RATES.  THE COMMISSION
IN ITS PRIOR CASES HAS REQUIRED RAILROADS PROPOSING A SIMILAR REDUCTION
IN SERVICE EITHER TO SHOW THAT THE RATES THEN IN EFFECT DID NOT
COMPENSATE THEM FOR THE SERVICE, AND THUS THAT THE SERVICE WAS BEING
PROVIDED AT NO CHARGE, OR TO REDUCE THE EXISTING RATES.  SEE, E. G.,
TRANSIT CHARGES, SOUTHERN TERRITORY, 332 I.C.C. 664, 683 (1938);
LOADING OF LESS-THAN-CARLOAD FREIGHT ON LIGHTERS IN NORFOLK, VA.,
HARBOR, 91 I.C.C. 394 (1924); ICC V. CHICAGO, B. & Q. R. CO., 186 U.S.
320 (1902). 

NOTHING THE COMMISSION SAID SUGGESTS ANY REASON WHY THE RAILROADS
SHOULD NOT BE REQUIRED TO FOLLOW THE SAME RULE IN THIS CASE.  AT NO
TIME HAVE RATES EVER BEEN ESTABLISHED, OR FOUND JUST AND REASONABLE,
WHEN THE RAILROADS DID NOT INCLUDE THE SERVICE OF IN-TRANSIT
INSPECTION.  PERHAPS THE IMPERATIVE NEED TO INCREASE THE NUMBER OF
FREIGHT CARS AVAILABLE TO ALL SHIPPERS JUSTIFIES SOME ALTERATION OF THE
GENERAL RULE.  YET THE COMMISSION, WHEN DEALING WITH SHIPPERS WHO WILL
CONTINUE TO HAVE IN-TRANSIT INSPECTIONS, INVOKED THE FACT THAT THE NEW
CHARGES WOULD NOT RAISE RATES ABOVE THOSE PERMITTED BY THE GENERAL
MAXIMA.  AS TO THAT CLASS, THE COMMISSION APPARENTLY BELIEVED THAT IT
COULD NOT SIMPLY REFUSE TO FOLLOW PREEXISTING PRACTICES ON THE GROUND
OF EXIGENCY ALONE.  THE COMMISSION OFFERED NO REASON TO DISTINGUISH THE
LARGER CLASS FROM THE SMALLER ONE, IN THAT RESPECT.  BUT IT MIGHT BE
THAT RATES FOR SERVICES INCLUDING AN IN-TRANSIT INSPECTION, AT THE
LEVEL OF THE GENERAL MAXIMUM, WOULD BE REASONABLE WHILE RATES FOR
SERVICES WITHOUT SUCH INSPECTIONS WOULD BE UNREASONABLE AT THAT LEVEL,
OR EVEN BELOW IT.  THUS, THE FACT THAT THE NEW CHARGES WILL NOT EXCEED
THE GENERAL MAXIMUM SEEMS TO HAVE NO BEARING ON THE QUESTION OF THE
REASONABLENESS OF THE RATES THAT WILL CONTINUE TO BE IN FORCE FOR NOW
REDUCED SERVICES.  /11/ 

PERHAPS THE CURRENT LINE-HAUL RATES REALLY DO NOT INCLUDE A
SUBSTANTIAL AMOUNT ATTRIBUTABLE TO THE COST OF PROVIDING IN-TRANSIT
INSPECTIONS.  BUT CF. TRANSCRIPT OF HEARING 231 - 232, 258 - 266.  OR
PERHAPS THE COMMISSION HAS SOME REASON TO REINTERPRET THE PRIOR CASES
SUGGESTING THAT ITS RULE REFLECTS A CONCERN FOR RATES THAT ARE
"INCREASED" SIMPLY BECAUSE OF A REDUCTION IN SERVICES. 

AS IN SECRETARY OF AGRICULTURE V. UNITED STATES, 347 U.S., AT 652,
THE COMMISSION MAY HAVE REASONS FOR "FOLLOWING A PROCEDURE FAIRLY
ADAPTED TO THE UNIQUE CIRCUMSTANCES OF THIS CASE."  /12/  BUT, AS IN
THAT CASE, IT MUST MAKE THESE REASONS KNOWN TO A REVIEWING COURT WITH
SUFFICIENT CLARITY TO PERMIT IT TO DO ITS JOB.  EVEN GIVING THE
COMMISSION'S OPINION THE MOST SYMPATHETIC READING THAT WE FIND
POSSIBLE, WE CANNOT DISCOVER IN IT AN EXPRESSED REASON FOR PERMITTING
THE RAILROADS TO REDUCE THEIR SERVICES WITHOUT SHOWING THAT THE RATES
THEY PROPOSE TO MAINTAIN ARE REASONABLE RATES FOR THE SERVICE THEY
INTEND TO PROVIDE. 

        III 

AFTER HOLDING THAT THE MATTER MUST BE REMANDED TO THE INTERSTATE
COMMERCE COMMISSION FOR FURTHER PROCEEDINGS, THE DISTRICT COURT
ORDERED, "THE PROPOSED CHARGES ARE SUSPENDED AND SHALL BE INEFFECTIVE
UNTIL AND UNLESS OTHERWISE ORDERED BY THIS COURT."  NO REASONS FOR SUCH
AN ORDER WERE GIVEN; THE DISTRICT COURT DID NOT, FOR EXAMPLE, SPECIFY
THE NATURE OF THE HARM TO THE SHIPPERS THAT WOULD, PRESUMABLY, INJURE
THEM IRREPARABLY.  NOR DID IT EXPLAIN THE BASIS FOR ITS APPARENT BELIEF
THAT ARROW TRANSPORTATION CO. V. SOUTHERN R. CO., 372 U.S. 658 (1963),
WAS DISTINGUISHABLE. 

IT WAS ERROR TO ENTER SUCH AN INJUNCTION.  THE DISTRICT COURT
CLEARLY HAD POWER TO SUSPEND THE OPERATION OF THE COMMISSION'S ORDER
PENDING THE FINAL DETERMINATION OF THE SHIPPERS' SUIT.  THAT POWER IS
GIVEN IN TERMS BY 28 U.S.C. ^ 2324:  "THE PENDENCY OF AN ACTION TO
ENJOIN, SET ASIDE, ANNUL, OR SUSPEND ANY ORDER OF THE INTERSTATE
COMMERCE COMMISSION SHALL NOT OF ITSELF STAY OR SUSPEND THE OPERATION
OF THE ORDER, BUT THE COURT MAY RESTRAIN OR SUSPEND, IN WHOLE OR IN
PART, THE OPERATION OF THE ORDER PENDING THE FINAL HEARING AND
DETERMINATION OF THE ACTION."  BUT AN INJUNCTION FORBIDDING THE
RAILROADS TO IMPLEMENT A PROPOSED CHANGE IN RATES IS NOT, STRICTLY
SPEAKING, AN INJUNCTION SUSPENDING THE COMMISSION'S ORDER.  IN THIS
CASE, FOR EXAMPLE, THE COMMISSION'S ORDER STATED THAT "THE PROPOSED NEW
OR INCREASED CHARGES FOR IN-TRANSIT INSPECTION OF GRAIN AT VARIOUS
POINTS IN THE UNITED STATES ARE JUST AND REASONABLE . . ."  340 I.C.C.,
AT 74.  THE ONLY CONSEQUENCE OF SUSPENDING THAT ORDER IS THAT THE
RAILROADS MAY NOT RELY, IN SOME SUBSEQUENT PROCEEDING, ON A COMMISSION
FINDING THAT THE PROPOSED RATES WERE JUST AND REASONABLE.  IN AN ACTION
FOR REPARATIONS, FOR EXAMPLE, THE RAILROADS COULD NOT GAIN ANY BENEFIT
FROM THE PURPORTED COMMISSION APPROVAL OF THE INCREASES.  /13/  SEE
ARIZONA GROCERY V. ATCHISON, T. & S.F.R. CO., 284 U.S. 370 (1932).  SEE
ALSO 49 U.S.C. ^^ 1 (5), 10 (1).  THE COMMISSION'S ORDER ALSO PROVIDED
THAT THE PROCEEDING BE DISCONTINUED, AND SUSPENSION OF THE ORDER
REQUIRES THE COMMISSION TO REOPEN ITS INQUIRY. 

CARRIERS MAY PUT INTO EFFECT ANY RATE THAT THE COMMISSION HAS NOT
DECLARED UNREASONABLE.  49 U.S.C. ^^ 6(3), 15(1).  SUSPENSION OF THE
COMMISSION'S ORDER THUS DOES NOT IN ITSELF PRECLUDE THE CARRIERS FROM
IMPLEMENTING A NEW RATE.  THE POWER CONFERRED ON THE DISTRICT COURT BY
^ 2324 DOES NOT IN ITSELF INCLUDE A POWER TO ENJOIN THE RAILROADS FROM
IMPLEMENTING A PROPOSED NEW CHARGE.  RATHER, THAT POWER MUST BE
CONSIDERED AS AT BEST ANCILLARY TO THE GENERAL EQUITABLE POWERS OF THE
REVIEWING COURT, AND PROTECTIVE OF ITS JURISDICTION.  SEE ARROW
TRANSPORTATION CO. V. SOUTHERN R. CO., SUPRA, AT 671 N. 22; ORDER OF
CONDUCTORS V. PITNEY, 326 U.S.C. ^ 1651(A).  AS THIS COURT NOTED IN
SCRIPPS-HOWARD RADIO, INC. V. FCC, 316 U.S. 4 (1942), SUCH A POWER MUST
BE INFERRED FROM CONGRESS' DECISION TO PERMIT JUDICIAL REVIEW OF THE
AGENCY ACTION.  "IF THE ADMINISTRATIVE AGENCY HAS COMMITTED ERRORS OF
LAW FOR THE CORRECTION OF WHICH THE LEGISLATURE HAS PROVIDED
APPROPRIATE RESORT TO THE COURTS, SUCH JUDICIAL REVIEW WOULD BE AN IDLE
CEREMONY IF THE SITUATION WERE IRREPARABLY CHANGED BEFORE THE
CORRECTION COULD BE MADE."  ID., AT 10. 

YET IT WOULD BE SURPRISING IF THAT POWER COULD BE EXERCISED TO THE
EXTENT THAT IT MIGHT SUBSTANTIALLY INTERFERE WITH THE FUNCTION OF THE
ADMINISTRATIVE AGENCY.  "THE EXISTENCE OF POWER IN A REVIEWING COURT TO
STAY THE ENFORCEMENT OF AN ADMINISTRATIVE ORDER DOES NOT MEAN, OF
COURSE, THAT ITS EXERCISE SHOULD BE WITHOUT REGARD TO THE DIVISION OF
FUNCTION WHICH THE LEGISLATURE HAS MADE BETWEEN THE ADMINISTRATIVE BODY
AND THE COURT OF REVIEW."  IBID.  PROPER REGARD FOR THAT DIVISION OF
FUNCTION REQUIRES THAT WE HOLD ERRONEOUS THE DISTRICT COURT'S DECISION
TO ENJOIN NOT ONLY THE COMMISSION'S ORDER FINDING THE PROPOSED RATES
JUST AND REASONABLE BUT ALSO THE IMPLEMENTATION OF THOSE RATES. 

IN ARROW TRANSPORTATION CO. V. SOUTHERN R. CO., SUPRA, THIS COURT
CONSIDERED A SIMILAR PROBLEM.  THE INTERSTATE COMMERCE COMMISSION HAS
THE POWER TO SUSPEND PROPOSED RATE CHANGES FOR SEVEN MONTHS, WHILE IT
PROCEEDS TO CONSIDER THE REASONABLENESS OF THE PROPOSAL.  "IF THE
PROCEEDING HAS NOT BEEN CONCLUDED AND AN ORDER MADE WITHIN THE PERIOD
OF SUSPENSION, THE PROPOSED CHANGE OF RATE . . . SHALL GO INTO EFFECT
AT THE END OF SUCH PERIOD."  49 U.S.C. ^ 15(7).  IN ARROW, PARTIES
AFFECTED BY PROPOSED REDUCTIONS SOUGHT AN INJUNCTION AGAINST THE
IMPLEMENTATION OF THE PROPOSED REDUCTIONS WHEN, AT THE END OF THE
SUSPENSION PERIOD, THE RAILROADS ANNOUNCED THAT THEY INTENDED TO PUT
THE NEW RATES INTO EFFECT.  THE COMMISSION HAD NOT DETERMINED THAT
THOSE RATES WERE REASONABLE.  THE COURT CONCLUDED THAT CONGRESS, BY
GIVING THE COMMISSION THE POWER TO SUSPEND RATES, HAD INTENDED TO
PRECLUDE THE COURTS FROM DOING THE SAME. 

HERE, OF COURSE, THE COMMISSION'S PROCEEDING HAS BEEN CONCLUDED, OR
AT LEAST SO THE COMMISSION THOUGHT WHEN IT ENTERED ITS ORDER.  THE
TERMS OF ^ 15(7) DO NOT SPECIFICALLY GOVERN THIS SITUATION.  NOR IS
THERE ANY OTHER PROVISION IN THE RELEVANT STATUTES DEPRIVING FEDERAL
COURTS OF THEIR GENERAL EQUITABLE POWER TO PRESERVE THE STATUS QUO TO
AVOID IRREPARABLE HARM PENDING REVIEW.  YET MANY OF THE CONSIDERATIONS,
RELIED ON IN ARROW AND INFLUENCING THIS COURT'S DEFINITION OF THE
PROPER RELATION BETWEEN THE COURTS AND THE INTERSTATE COMMERCE
COMMISSION, MUST BE DRAWN ON TO DELINEATE GUIDELINES FOR THE EXERCISE
OF THE ANCILLARY POWER, IN A PROCEEDING TO REVIEW A COMMISSION ORDER,
TO ENJOIN A RATE INCREASE PENDING FINAL DETERMINATION OF THE SUIT. 

THE MOST IMPORTANT OF THESE CONSIDERATIONS IS THE GROUP OF POLICIES
THAT ARE ENCOMPASSED BY THE TERM "PRIMARY JURISDICTION."  NATIONAL
TRANSPORTATION POLICY REFLECTS MANY OFTEN-COMPETING INTERESTS. 
CONGRESS HAS ESTABLISHED AN ADMINISTRATIVE AGENCY THAT HAS DEVELOPED A
CLOSE UNDERSTANDING OF THE VARIOUS INTERESTS AND THAT MAY DRAW UPON ITS
EXPERIENCE TO ILLUMINATE, FOR THE COURTS, THE PLAY OF THOSE INTERESTS
IN A PARTICULAR CASE.  CF. GREAT NORTHERN R. CO. V. MERCHANTS ELEVATOR
CO., 259 U.S. 285 (1922); UNITED STATES V. WESTERN PACIFIC R. CO., 352
U.S. 59 (1956).  ORDINARILY, THEN, A COURT SHOULD REFRAIN FROM
EXPRESSING A PRELIMINARY VIEW ON WHAT NATIONAL TRANSPORTATION POLICY
PERMITS, BEFORE THE ICC EXPRESSES ITS VIEW.  BUT WHEN A COURT ISSUES AN
INJUNCTION PENDING FINAL DETERMINATION, ONE IMPORTANT ELEMENT OF ITS
JUDGMENT IS ITS ESTIMATE OF THE PROBABILITY OF ULTIMATE SUCCESS ON THE
MERITS BY THE PARTY CHALLENGING THE AGENCY ACTION.  VIRGINIA PETROLEUM
JOBBERS ASSN. V. FPC, 104 U.S. APP. D.C. 106, 110, 259 F.2D 921, 925
(1958).  DEPENDING ON THE TYPE OF ERROR THE REVIEWING COURT FINDS IN
THE ADMINISTRATIVE PROCEEDINGS, THE ISSUANCE OF AN INJUNCTION PENDING
FURTHER ADMINISTRATIVE ACTION MAY INDICATE WHAT THE COURT BELIEVES IS
PERMITTED BY NATIONAL TRANSPORTATION POLICY, PRIOR TO AN EXPRESSION BY
THE COMMISSION OF ITS VIEW.  THIS IS PRECISELY WHAT THE DOCTRINE OF
PRIMARY JURISDICTION IS DESIGNED TO AVOID.  CF. ORDER OF CONDUCTORS V.
PITNEY, SUPRA; LOCOMOTIVE ENGINEERS V. M.-K.-T.R. CO., 363 U.S. 528,
533 (1960).  THE FACT THAT ISSUING AN INJUNCTION MAY UNDERCUT THE
POLICIES SERVED BY THE DOCTRINE OF PRIMARY JURISDICTION IS THEREFORE AN
IMPORTANT ELEMENT TO BE CONSIDERED WHEN A FEDERAL COURT CONTEMPLATES
SUCH ACTION.  /14/ 

AS WE HAVE INDICATED IN PART II OF THIS OPINION, WE REQUIRE THE
AGENCY TO JUSTIFY ITS DEPARTURE FROM ITS PRIOR DECISIONS SO THAT WE MAY
UNDERSTAND WHAT POLICIES IT IS PURSUING.  IF A REVIEWING COURT CANNOT
DISCERN THOSE POLICIES, IT MAY REMAND THE CASE TO THE AGENCY FOR
CLARIFICATION AND FURTHER JUSTIFICATION OF THE DEPARTURE FROM
PRECEDENT.  BUT AN INJUNCTION PENDING THE COMPLETION OF THOSE
PROCEEDINGS WOULD BE WARRANTED ONLY IF THE REVIEWING COURT ENTERTAINED
SUBSTANTIAL DOUBT ABOUT THE CONSISTENCY OF THE COMMISSION'S ACTION WITH
ITS MANDATE FROM CONGRESS.  CF. VIRGINIAN R. CO. V. UNITED STATES, 272
U.S. 658, 673 (1926).  /15/  WHEN A CASE IS REMANDED ON THE GROUND THAT
THE AGENCY'S POLICIES ARE UNCLEAR, AN INJUNCTION ORDINARILY INTERFERES
WITH THE PRIMARY JURISDICTION OF THE COMMISSION.  /16/  CF. ARROW
TRANSPORTATION CO. V. SOUTHERN R. CO., 372 U.S., AT 669 - 670. 

IN ADDITION, THE REVIEWING COURT MUST CONSIDER WHETHER IRREPARABLE
HARM WILL RESULT IF THE INJUNCTION IS NOT ISSUED AND THE PARTY SEEKING
IT PREVAILS ON THE MERITS.  ORDER OF CONDUCTORS V. PITNEY, SUPRA.  THAT
TOO MAY INTERFERE WITH THE AGENCY'S PRIMARY JURISDICTION.  WE DEAL HERE
WITH A DISPUTE BETWEEN SHIPPERS AND CARRIERS.  IN GIVING THE INTERSTATE
COMMERCE COMMISSION POWER TO SUSPEND PROPOSED RATE INCREASES, CONGRESS
ALLOCATED THE BENEFIT AND HARM OF A SUSPENSION.  FOR A PERIOD OF UP TO
SEVEN MONTHS, THE CARRIERS MAY NOT COLLECT THE INCREASES IF THE
COMMISSION SUSPENDS THEM.  THE INCOME THAT THEY MIGHT HAVE GAINED IS
LOST TO THEM FOREVER.  CONGRESS DID PROVIDE PROTECTION TO SHIPPERS FOR
THE PERIOD AFTER THE RATES GO INTO EFFECT.  THE COMMISSION MAY REQUIRE
THE CARRIERS TO KEEP DETAILED ACCOUNTS OF THE INCOME RECEIVED AS A
RESULT OF THE INCREASE.  IF THE INCREASE IS UTLIMATELY FOUND
UNJUSTIFIED, THE COMMISSION MAY ORDER A REFUND.  49 U.S.C. ^ 15(7). 
EVEN IF THE COMMISSION DOES NOT DO SO IN A SUSPENSION PROCEEDING, THE
SHIPPERS MAY RECOVER REPARATIONS UNDER SOME CIRCUMSTANCES, 49 U.S.C. ^^
8, 9.  THUS, IT IS OFTEN QUITE UNLIKELY THAT SHIPPERS WILL BE
IRREPARABLY DAMAGED BY THE IMPLEMENTATION OF A RATE INCREASE.  /17/ 

THERE ARE, HOWEVER, PUBLIC INTERESTS AT STAKE IN THIS LITIGATION, AS
WELL AS THE PRIVATE INTERESTS OF THE SHIPPERS AND CARRIERS.  THE
COMMISSION FOUND THAT INSPECTION OF GRAIN IS REQUIRED FOR THE ORDERLY
MARKETING OF GRAIN.  339 I.C.C., AT 385.  INSPECTIONS WILL THUS
CONTINUE TO BE MADE.  BUT NOW, IF THE COMMISION ULTIMATELY APPROVES THE
NEW CHARGES, THERE WILL BE A SEPARATE CHARGE FOR THEM, EITHER BY THE
RAILROADS UNDER THE NEW CHARGES, OR BY SOMEONE ELSE ENGAGED IN
MARKETING GRAIN.  THIS EXTRA COST MUST BE ABSORBED BY SOMEONE, PERHAPS
BY FARMERS, PERHAPS BY THE ULTIMATE CONSUMERS OF GRAIN.  SEE TR. 1299. 
THE IMPACT OF RATES ON VARIOUS GROUPS IN THIS COUNTRY IS SURELY
RELEVANT TO DECIDING THAT THE RATES ARE CONSISTENT WITH NATIONAL
TRANSPORTATION POLICY. 

BUT THE PUBLIC INTEREST IS NOT A SIMPLE FACT, EASILY DETERMINED BY
COURTS.  HERE, FOR EXAMPLE, THE INTERESTS OF FARMERS AND CONSUMERS OF
GRAIN MUST BE BALANCED AGAINST THE INTERESTS OF PRODUCERS AND CONSUMERS
OF ALL SORTS OF OTHER GOODS SHIPPED BY RAIL.  FOR THE PREMISE OF THE
COMMISSION'S ACTION IN THIS CASE WAS THAT SEPARATE CHARGES FOR IN
TRANSIT INSPECTIONS WOULD ALLEVIATE THE FREIGHT-CAR SHORTAGE.  THE
SHORTAGE ITSELF INCREASES THE COST OF TRANSPORTING A WIDE RANGE OF
PRODUCTS BY RAIL.  THUS, THE DECISION THAT MUST BE MADE IS WHETHER THE
CAR SHORTAGE HAS A MORE SIGNIFICANT IMPACT ON THE NATIONAL ECONOMY THAN
DOES INCREASED COST FOR GRAIN PRODUCTS.  CONGRESS HAS COMMITTED THAT
DECISION TO THE INTERSTATE COMMERCE COMMISSION IN THE FIRST INSTANCE,
AND THE EXTENT OF HARM TO FARMERS AND CONSUMERS OF GRAIN CANNOT BE
ESTIMATED WITHOUT INTERFERING WITH THE PRIMARY JURISDICTION OF THE
COMMISSION.  /18/ 

AS THIS DISCUSSION SHOWS, IT IS VERY LIKELY THAT A DECISION TO
ENJOIN RATES PENDING RECONSIDERATION BY THE COMMISSION IN ORDER TO
CLARIFY ITS POLICIES WILL IMPLY SOME VIEW BY THE DISTRICT COURT ABOUT
DECISIONS COMMITTED TO THE COMMISSION BY THE DOCTRINE OF PRIMARY
JURISDICTION.  THE DISTRICT COURT'S POWER TO ENJOIN RATES, IN ORDER TO
PROTECT ITS JURISDICTION TO REVIEW COMMISSION ORDERS, MUST THEREFORE BE
EXERCISED WITH GREAT CARE AND AFTER FULL AND DETAILED CONSIDERATION OF
THE PROBLEMS SET OUT ABOVE.  IT WILL NOT DO TO ENTER SUCH AN INJUNCTION
IN THE OFFHAND MANNER OF THE DISTRICT COURT.  CF. VIRGINIAN R. CO. V.
UNITED STATES, 272 U.S. 658 (1926).  HERE THE DISTRICT COURT COULD NOT
CONSIDER THE LIKELIHOOD OF SUCCESS ON THE MERITS OR WHERE THE PUBLIC
INTEREST LIES WITHOUT INFRINGING ON DECISIONS COMMITTED BY CONGRESS TO
THE PRIMARY JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION, AND THE
POSSIBILITY OF HARM TO THE SHIPPERS WAS SMALL.  IT WAS THEREFORE
IMPROPER TO ENTER AN INJUNCTION AGAINST THE IMPLEMENTATION OF THE
PROPOSED NEW CHARGES. 

HERE THE COMMISSION ORDERED THE RAILROADS TO MAINTAIN RECORDS OF THE
AMOUNTS COLLECTED AS A RESULT OF THE NEW CHARGE.  IT MAY BE THAT THIS
ADEQUATELY PROTECTS THE SHIPPERS FROM IRREPARABLE DAMAGE, IN LIGHT OF
THE AVAILABILITY OF ACTIONS FOR REPARATIONS.  THE COMMISSION MAY
DETERMINE ON REMAND THAT SOME FURTHER STEPS MUST BE TAKEN TO PROTECT
THE SHIPPERS.  BUT IN ANY EVENT, IT IS CLEAR THAT THE DISTRICT COURT
SHOULD NOT HAVE ENTERED THE INJUNCTION IT DID.  THE ACTION OF THE
DISTRICT COURT IS AFFIRMED AS TO THE REMAND TO THE COMMISSION AND IS
REVERSED AS TO THE INJUNCTION SUSPENDING THE PROPOSED CHARGES. 

              SO ORDERED. 

/1/  WE HAVE PREVIOUSLY STAYED THE JUDGMENT OF THE DISTRICT COURT ON
CONDITION THAT APPELLANT RAILROADS KEEP ACCOUNTS OF THE AMOUNTS
RECEIVED FROM THE IN-TRANSIT CHARGES.  409 U.S. 801 (1972).  WE HEREBY
DIRECT THE DISTRICT COURT TO ENTER AN ORDER, CONSISTENT WITH THIS
OPINION, REGARDING THE DISPOSITION OF THOSE AMOUNTS. 

/2/  SUCH A CHARGE IS ALREADY MADE FOR THE FIRST IN-TRANSIT
INSPECTION IN THE EASTERN TERRITORY.  THE PROPOSED RATES WOULD INCREASE
THAT CHARGE FROM $7.42 TO $14.33.  THERE WOULD BE A SLIGHT INCREASE IN
THE CURRENTLY EFFECTIVE CHARGE FOR THE SECOND AND SUBSEQUENT
INSPECTIONS.  A LARGE MAJORITY OF THE NUMBER OF IN-TRANSIT INSPECTIONS
OCCUR IN THE WESTERN TERRITORY, WHERE MOST OF THIS COUNTRY'S GRAIN IS
PRODUCED AND WHERE NO SEPARATE CHARGE IS NOW MADE FOR THE FIRST IN
TRANSIT INSPECTION.  ONLY A FEW CARS ARE STOPPED FOR MORE THAN ONE
INSPECTION.  THUS, FOR CONVENIENCE OF EXPOSITION, WE TREAT THIS
LITIGATION AS INVOLVING A PROPOSAL FOR A SEPARATE NEW CHARGE; THAT IS
THE REAL EFFECT OF THE RAILROADS' PROPOSAL IN MOST INSTANCES. 

/3/  THE REPORT OF DIVISION 2 OF THE COMMISSION IS FOUND AT 339
I.C.C. 364 (1971).  THE ENTIRE COMMISSION "ADOPTED) AND AFFIRMED) THE
FINDINGS AND CONCLUSIONS REACHED" IN THAT REPORT.  340 I.C.C. 69, 70
(1971). 

/4/  FOR A DESCRIPTION OF THE CAR-UTILIZATION PROBLEMS, SEE UNITED
STATES V. ALLEGHENY-LUDLUM STEEL CORP., 406 U.S. 742, 745 - 746
(1972). 

/5/  SEE ALSO 5 U.S.C. ^ 706(2). 

/6/  IN TRANSIT CHARGES, SOUTHERN TERRITORY, 332 I.C.C. 664, 683
(1968), THE COMMISSION STATED THE RULE IN THESE TERMS: "(THE PROPOSED
CHARGE MAY NOT BE DIVORCED FROM THE LINE-HAUL RATE, FOR BOTH, INSOFAR
AS TRANSIT IS CONCERNED, ARE INEXTRICABLY INTERDEPENDENT.  (CITATIONS
OMITTED.)  WHILE IT WOULD SEEM PREFERABLE TO HAVE THE VARIOUS ELEMENTS
ENTERING INTO, AND CONSTITUTING, THE WHOLE ANALYZED, IF INDEED THEY
COULD BE SEPARATED, THE ENTIRE TRANSPORTATION SERVICE RENDERED,
INCLUDING TRANSIT, MUST BE EXAMINED IN RELATION TO THE TOTAL RATES AND
CHARGES ASSESSED."  THE DISTRICT COURT REVIEWING THAT CASE REPHRASED
THE RULE:  "THE QUESTION HERE IS WHAT SHOULD THE CARRIER BE PAID FOR A
SERVICE WHICH IT HAS BEEN RENDERING, AND HAS BEEN CHARGING FOR, AND HAS
BEEN PAID FOR (ONE KNOWETH NOT WHAT) WHICH IT PROPOSES TO SEPARATE AND
CHARGE SEPARATELY FOR.  BOTH THE COURTS AND THE COMMISSION HAVE
CONSISTENTLY HELD THAT WHAT IS A JUST AND REASONABLE RATE FOR THE
SERVICE TO BE SEPARATED AND CHARGED FOR SEPARATELY CANNOT BE DETERMINED
BY EXAMINING ONLY THE TYPICAL QUESTIONS OF COST, ETC., WITH RESPECT TO
THE SEPARATE SERVICE.  ON THE CONTRARY, THE TYPICAL QUESTIONS MUST BE
DIRECTED TO THE OVERALL OR COMBINED PICTURE SO THAT ONE MAY CONCLUDE
(A) THAT THE RATE FOR THE SEPARATED SERVICE, LOOKED AT BY ITSELF IN THE
LIGHT OF THE APPLICABLE QUESTIONS, IS JUST AND REASONABLE; AND (B) THAT
THE REMAINING RATE FOR THE SERVICES, SANS THE SEPARATED SERVICE, IS NOT
RENDERED UNJUST OR UNREASONABLE."  CINCINNATI, N.O. & T.P.R. CO. V.
UNITED STATES, CIVIL ACTION NO. 6992 (SD OHIO, JAN. 12, 1970), AFF'D,
400 U.S. 932 (1970).  THE DISTRICT COURT CONTINUED, SOMEWHAT MORE
OBSCURELY:  "WHETHER THE EXAMINATION IS IN TERMS OF 'WHAT PORTION OF
THE LINE-HAUL RATE REPRESENTED THE RATE FOR THE SERVICE TO BE
SEPARATED,' OR WHETHER THE SEARCH IN TERMINOLOGY IS FOR THE ANSWER TO
THIS QUESTION:  DOES THE NEW AGGREGATE RATE, COMPOSED OF LINE-HAUL PLUS
TRANSIT RATES REPRESENT A JUST AND REASONABLE RATE FOR ALL OF THE
SERVICES (THE AGGREGATE OF THE SEVERED AND THE NON-SEVERED)-- THE
PRINCIPLE IS THE SAME."  AND IN SECRETARY OF AGRICULTURE V. UNITED
STATES, 347 U.S. 645, 654 (1954), THIS COURT REFERRED TO IT AS "THE
PREVAILING RULE . . . THAT A SERVICE NECESSARILY ENCOMPASSED BY THE
LINE-HAUL RATE CANNOT BE SEPARATELY RESTATED WITHOUT EXAMINING THE
SUFFICIENCY OF THE LINE-HAUL RATE TO COVER IT."     /7/  CURRENTLY
EFFECTIVE RATES ARE, ON ALMOST EVERY ROUTE, LOWER THAN THE RATES
PERMITTED BY THE GENERAL MAXIMUM.  SEE 340 I.C.C., AT 71.  OFTEN THIS
RESULTS FROM COMPETITION FROM OTHER MODES OF TRANSPORT WHICH FORCES
RATES BELOW WHAT THE RAILROADS WOULD LIKE TO CHARGE.     /8/  MR.
JUSTICE WHITE ARGUES THAT, IF A RATE AT THE LEVEL OF THE GENERAL
MAXIMUM IS REASONABLE, AND IF THE SEPARATE CHARGE IS REASONABLE, THEN
SURELY A LINE-HAUL RATE THAT IS EQUAL TO THE GENERAL MAXIMUM LESS THE
SEPARATE CHARGE IS REASONABLE.  THE FLAW IN HIS ARGUMENT IS THAT THE
COMMISSION HAS NEVER DETERMINED THAT RATES AT THE LEVEL OF THE CURRENT
GENERAL MAXIMUM ARE REASONABLE.  THAT IS, IN THE EXAMPLE SUGGESTED BY
MR. JUSTICE WHITE, THE COMMISSION HAS NOT DETERMINED WHAT HE SAYS THAT
IT HAS "PREVIOUSLY FOUND -- THAT 120 IS A REASONABLE CHARGE FOR BOTH
SERVICES."  WITHOUT THIS PREMISE, HIS ARGUMENT FAILS. 

/9/  IF THE COMMISSION FINDS THAT THE PROPOSED RATES ARE
UNREASONABLE, RATHER THAN THAT THE RAILROADS FAILED TO CARRY THEIR
BURDEN OF PROOF, THAT FINDING MIGHT BE CONCLUSIVE IN A SUBSEQUENT
PROCEEDING.  CF. MITCHELL COAL & COKE CO. V. PENNSYLVANIA R. CO., 230
U.S. 247, 258 (1913); ICC V. ATLANTIC COAST LINE R. CO., 383 U.S. 576,
590 - 594 (1966).  THIS DOES NOT, HOWEVER, AFFECT THE BURDEN PLACED ON
CARRIERS IN THE SUSPENSION PROCEEDINGS. 

/10/  THE ARGUMENT URGED IN SUPPORT OF THE COMMISSION'S ORDER IS, IN
ESSENCE, THAT THE SEPARATE CHARGE APPROVED BY IT WAS JUST LIKE A
GENERAL RATE INCREASE BECAUSE OF THE BREADTH OF ITS APPLICATION. 
HOWEVER, THE COMMISSION DID NOT USE THE LANGUAGE CHARACTERISTIC OF
GENERAL INCREASE PROCEEDINGS.  SEE, E. G., EX PARTE 259, INCREASED
FREIGHT RATES, 1968, 332 I.C.C. 714, 715, 792 (1969).  AND, IF THIS
WERE JUST LIKE A GENERAL RATE INCREASE, SERIOUS QUESTIONS WOULD ARISE
ABOUT THE JURISDICTION OF THE DISTRICT COURT TO REVIEW THE COMMISSION'S
ORDER.  SEE ATLANTIC CITY ELECTRIC CO. V. UNITED STATES, 306 F. SUPP.
338 (SDNY 1969); ALABAMA POWER CO. V. UNITED STATES, 316 F. SUPP. 337
(DC 1969), BOTH AFF'D BY AN EQUALLY DIVIDED COURT, 400 U.S. 73 (1970). 
YET, ALTHOUGH THE PARTIES HAVE CITED THOSE CASES TO US, SEE BRIEF OF
THE INTERSTATE COMMERCE COMMISSION 35; BRIEF OF THE SECRETARY OF
AGRICULTURE 18; BRIEF OF WICHITA BOARD OF TRADE 32, THEY HAVE NOT
CONTENDED AT ANY LENGTH THAT THE DISTRICT COURT LACKED JURISDICTION
OVER THIS LITIGATION.  THIS SUGGESTS THAT THE PARTIES, INCLUDING THE
COMMISSION, DO NOT INTERPRET THE COMMISSION'S OPINION AS RESTING ON THE
SIMILARITY BETWEEN THESE CASES AND GENERAL RATE INCREASE CASES. 

/11/  THE COMMISSION MAY HAVE INTENDED TO LEAVE THIS QUESTION FOR
LATER PROCEEDINGS.  BUT THIS COURSE RUNS INTO THE DIFFICULTIES NOTED
SUPRA, AT 813 - 814. 

/12/  ON REMAND, THE COMMISSION MIGHT EXPLAIN MORE FULLY THE COURSE
IT FOLLOWED, OR IT MIGHT ADOPT A DIFFERENT COURSE, FOR EXAMPLE, BY
REQUIRING THE CARRIERS TO DEMONSTRATE THE REASONABLENESS OF THE LINE
HAUL RATES FOR SERVICES PROVIDED WITHOUT AN IN-TRANSIT INSPECTION ON A
REPRESENTATIVE SAMPLE OF ROUTES.  MOST OF THE PRIOR CASES IN WHICH THE
COMMISSION INVOKED THE RULE INVOLVED QUITE LIMITED PROBLEMS, OFTEN
CONFINED TO A SINGLE ROUTE.  BUT CF. TRANSIT CHARGES, SOUTHERN
TERRITORY, 332 I.C.C. 664 (1968).  IF THE COMMISSION THEN EXPLAINED WHY
THAT PROCEDURE WAS RESPONSIVE TO THE NEEDS OF THE PARTICULAR CASE, THE
PREREQUISITES OF JUDICIAL REVIEW WOULD BE SATISFIED. 

/13/  THE COMMISSION MAY, OF COURSE, APPROVE THE RATES ON A THEORY
SIMILAR TO THAT DISCUSSED IN PART II OF THIS OPINION, JUSTIFYING ITS
REFUSAL TO REQUIRE A SHOWING OF REASONABLENESS BY THE FACT THAT THAT
QUESTION WOULD BE OPEN IN SUBSEQUENT PROCEEDINGS.  A SUSPENSION OF THE
COMMISSION ORDER WOULD THEN HAVE ALMOST NO PRACTICAL MEANING. 

/14/  LOCOMOTIVE ENGINEERS V. M.-K.-T. R. CO., 363 U.S. 528 (1960),
SHOWS THAT NOT ALL JUDICIAL INJUNCTIONS INFRINGE ON AN AGENCY'S PRIMARY
JURISDICTION.  THERE THE COURT NOTED THAT THE DISTRICT COURT'S
"EXAMINATION OF THE NATURE OF THE DISPUTE IS SO UNLIKE THAT WHICH THE
(AGENCY) WILL MAKE OF THE MERITS OF THE SAME DISPUTE, AND IS FOR SUCH A
DISSIMILAR PURPOSE, THAT IT COULD NOT INTERFERE WITH THE LATER
CONSIDERATION OF THE GRIEVANCE BY THE (AGENCY)."  ID., AT 534.  HERE,
IN CONTRAST, THE DISTRICT COURT MUST CONSIDER WHETHER THE COMMISSION IS
LIKELY TO FIND REASONS FOR ITS ACTION THAT ARE CONSISTENT WITH
CONGRESSIONAL POLICY.  NOT ONLY IS SUCH A QUESTION EXCEEDINGLY COMPLEX,
IT IS ALSO JUST WHAT THE COMMISSION ITSELF MUST DECIDE BEFORE APPROVING
THE PROPOSED NEW CHARGES. 

/15/  IN SOME CASES, THE REVIEWING COURT MIGHT EXPLICITLY REFRAIN
FROM CONSIDERING THE LIKELIHOOD OF SUCCESS ON THE MERITS IN DECIDING
WHETHER OR NOT TO ISSUE AN INJUNCTION.  THEN, IF THE POSSIBILITY OF
IRREPARABLE DAMAGE TO THE PARTY SEEKING REVIEW OR TO OTHER INTERESTS IS
GREAT ENOUGH, AN INJUNCTION MAY PERHAPS BE JUSTIFIED.  SEE, E.G.,
SEMMES MOTORS, INC. V. FORD MOTOR CO., 429 F.2D 1197, 1205 - 1206 (CA2
1970); CHECKER MOTORS CORP. V. CHRYSLER CORP., 405 F.2D 319, 323 (CA2
1969).  HERE, HOWEVER, THE DISTRICT COURT DID NOT CLEARLY REFUSE TO
ASSESS THE LIKELIHOOD OF ULTIMATE SUCCESS AND, AS INDICATED INFRA, THE
POSSIBILITY OF IRREPARABLE HARM TO THE SHIPPERS IS QUITE SMALL. 

/16/  THIS ANALYSIS TURNS ON THE FACT THAT THE TYPE OF ERROR IN
THESE CASES INVOLVES PRECISELY A FAILURE BY THE COMMISSION TO DO THE
JOB COMMITTED TO IT, THE PROPER PERFORMANCE OF WHICH IS A PREDICATE OF
THE DOCTRINE OF PRIMARY JURISDICTION.  WHERE THE ERROR MIGHT BE
CONSIDERED PURELY PROCEDURAL, FOR EXAMPLE WHERE THE COMMISSION FAILED
TO CONSIDER RELEVANT EVIDENCE ON GROUNDS THE REVIEWING COURT FINDS
INADEQUATE, THE ISSUANCE OF AN INJUNCTION MIGHT NOT INTERFERE WITH THE
AGENCY'S PRIMARY JURISDICTION QUITE SO SEVERELY.  YET EVEN THERE,
BEFORE ISSUING AN INJUNCTION THE REVIEWING COURT MUST CONSIDER WHETHER
THE COMMISSION WOULD HAVE COME TO A DIFFERENT CONCLUSION HAD IT
CONSIDERED THE EVIDENCE.  AND THAT MAY SOMETIMES IMPINGE ON THE SPHERE
COMMITTED TO THE COMMISSION FOR INITIAL DECISION. 

THIS COURT HAS DISTINGUISHED BETWEEN BLATANTLY LAWLESS ACTION AND
MERE PROCEDURAL ERROR IN CASES RAISING SIMILAR QUESTIONS OF THE POWER
OF COURTS IN INTERVENE IN ADMINISTRATIVE ACTION.  SEE OESTEREICH V.
SELECTIVE SERVICE BD., 393 U.S. 233 (1968); FEIN V. SELECTIVE SERVICE
SYSTEM, 405 U.S. 365 (1972). 

DIFFERENT CONSIDERATIONS WOULD COME INTO PLAY, TOO, WHEN THE
REVIEWING COURT FINDS SOME FAILURE BY THE CARRIERS IN THE SUSPENSION
PROCEEDING, RATHER THAN A FAILURE BY THE COMMISSION TO DO ITS TASK.  A
REVIEWING COURT MIGHT FIND, FOR EXAMPLE, THAT THE COMMISSION'S
CONCLUSION THAT THE CARRIERS HAD CARRIED THE BURDEN OF PROOF TO JUSTIFY
THE INCREASE WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.  ALTHOUGH
PHRASED AS A FINDING OF ADMINISTRATIVE ERROR, THIS IN FACT RELATES TO
THE PRESENTATION OF EVIDENCE BY THE CARRIERS. 

FINALLY, THIS LITIGATION INVOLVES ONLY CLAIMS UNDER THE INTERSTATE
COMMERCE ACT.  SUBSEQUENT LEGISLATION MIGHT AFFECT THE RELATION BETWEEN
COURT AND AGENCY AND SO THE PROPRIETY OF INJUNCTIVE RELIEF.  WHETHER IT
DOES SO MUST BE DETERMINED BY EXAMINING THAT LEGISLATION. 

/17/  THE INTERESTS OF OTHER CARRIERS WHO MIGHT OBJECT TO A PROPOSED
RATE CHANGE ARE SOMEWHAT DIFFERENT.  THEY ARE NOT DAMAGED, AS THE
SHIPPERS ARE, BY OUT-OF-POCKET EXPENDITURES, AND REFUNDS OR REPARATIONS
DO NOT REMEDY THE LOSS OF BUSINESS THAT THEY MIGHT SUFFER.  THIS FACTOR
WOULD THUS HAVE LESS WEIGHT IN SUITS BY SUCH CARRIERS, ALTHOUGH THE
PROBLEM OF INTERFERING WITH PRIMARY JURISDICTION MUST STILL BE
CONSIDERED. 

/18/  ALTHOUGH THEY ARE FAR LESS SUBSTANTIAL THAN THE PROBLEMS OF
PRIMARY JURISDICTION AND IRREPARABLE INJURY, PROCEDURAL PROBLEMS MIGHT
ALSO ARISE WHEN A DISTRICT COURT CONSIDERS A REQUEST FOR AN INJUNCTION
LIKE THAT ISSUED HERE.  REVIEW OF COMMISSION ORDERS IS BY A THREE-JUDGE
DISTRICT COURT.  THE UNITED STATES IS THE DEFENDANT.  28 U.S.C. ^^
2321, 2322.  RAILROADS WHICH APPEARED BEFORE THE COMMISSION HAVE A
RIGHT TO INTERVENE, 28 U.S.C. ^ 2323, BUT THEY NEED NOT DO SO.  IF A
RAILROAD CHOSE NOT TO INTERVENE, THE DISTRICT COURT COULD NOT ENJOIN IT
FROM IMPLEMENTING THE NEW CHARGE.  THE PLAINTIFFS COULD, OF COURSE,
COMPEL AN UNWILLING RAILROAD TO APPEAR.  FED. RULE DIV. PROC. 19(A). 
BUT, EVEN THOUGH SERVICE OF PROCESS IS NATIONWIDE, 28 U.S.C. ^ 2321,
SOME PLAINTIFFS MIGHT FIND IT DIFFICULT TO SERVE EVERY RAILROAD THAT
DID NOT APPEAR WILLINGLY.  THE PRESENCE BEFORE THE REVIEWING COURT OF
ALL INTERESTED PARTIES, OR ONLY SOME OF THEM, IS THEREFORE RELEVANT TO
THE EXERCISE OF THE COURT'S DISCRETION TO ENJOIN A PROPOSED RATE
INCREASE.  LIKE THE OTHER FACTORS DISCUSSED IN THIS OPINION, THIS DOES
NOT ESTABLISH THAT THE DISTRICT COURT LACKS POWER TO ENJOIN THE
IMPLEMENTATION OF PROPOSED RATE INCREASES AFTER A FINAL COMMISSION
ORDER, BUT IT IS A FACTOR TO BE CONSIDERED IN DETERMINING WHETHER TO
EXERCISE EQUITABLE DISCRETION TO ISSUE SUCH AN INJUNCTION. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE AFFIRMANCE OF THE REMAND TO
THE COMMISSION AND DISSENTING FROM THE REVERSAL OF THE DECREE
AUTHORIZING THE INJUNCTION. 

THOUGH I CONCUR IN THE AFFIRMANCE OF THE REMAND TO THE INTERSTATE
COMMERCE COMMISSION, I DISSENT FROM THE REVERSAL OF THE DECREE
AUTHORIZING THE INJUNCTION, SINCE IN MY VIEW THE DISTRICT COURT WAS
QUITE CORRECT IN ISSUING ITS INJUNCTION.  ARROW TRANSPORTATION CO. V.
SOUTHERN R. CO., 372 U.S. 658, IS NOT RELEVANT HERE, FOR THE REASON
THAT 49 U.S.C. 15(7) ONLY PURPORTS TO CONTROL THE SUSPENSION OF RATES
UP UNTIL THE TIME THE COMMISSION HAS RENDERED A DECISION.  AFTER THAT
DECISION HAS BEEN MADE, THE REVIEWING COURT HAS, I BELIEVE, THE POWER
TO ENJOIN THE AFFECTED RATES.  THE NEW CHARGES WHICH THE COMMISSION
WOULD IMPOSE WOULD HAVE AN IMMEDIATE IMPACT UPON THE GRAIN MARKETING
SYSTEM.  IT WOULD AFFECT THE VOLUME OF BUSINESS OF THE GRAIN MERCHANTS,
IT WOULD AFFECT THE EMPLOYMENT OF GRAIN INSPECTORS, AND IT WOULD RESULT
IN LOWER PRICES BEING PAID TO THE FARMERS.  NONE OF THESE INCIDENCES
CAN BE REMEDIED UNDER THE EXISTING STATUTORY SCHEME, BECAUSE NONE OF
THESE INTERESTS IS ENABLED TO BRING SUIT FOR A LATER RATE REFUND. 
HENCE, IN MY VIEW, THE GRAIN TRADE AND THE FARMERS NEED THIS INTERIM
PROTECTION LEST IN INSPECTION THE MARKETING SYSTEM SUFFER SEVERE
ATTRITION DURING THE PERIOD OF REMAND.  THE DECIDING PRINCIPLE IS THAT
THE DISTRICT COURT SITS AS A COURT OF EQUITY, UNITED STATES V. MORGAN,
307 U.S. 183, 191, AND AS A COURT OF EQUITY HAS, I BELIEVE, AMPLE POWER
TO PROTECT THE GRAIN MARKET NATIONALLY WHICH WOULD OTHERWISE BE WITHOUT
REMEDY UNDER THE EXISTING STATUTORY REGIME. 

JURISDICTION IS GRANTED THE DISTRICT COURT "TO ENFORCE, ENJOIN, SET
ASIDE, ANNUL OR SUSPEND" ANY ORDER OF THE INTERSTATE COMMERCE
COMMISSION.  28 U.S.C. ^ 1336(A).  FOR YEARS, THE TYPE OF ORDER HERE
INVOLVED WAS NOT REVIEWABLE.  SEE PROCTER & GAMBLE CO. V. UNITED
STATES, 225 U.S. 282.  BUT THAT "NEGATIVE" ORDER CONCEPT WAS ABANDONED
IN ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, 145.  THE
PROVISIONS OF 28 U.S.C. ^ 1336(A), ARE AN EXPLICIT GRANT OF POWER TO
PROVIDE INJUNCTIVE RELIEF.  UNDER THAT ACT THE "GOVERNING PRINCIPLE" IS
"THAT IT IS THE DUTY OF A COURT OF EQUITY GRANTING INJUNCTIVE RELIEF TO
DO SO UPON CONDITIONS THAT WILL PROTECT ALL -- INCLUDING THE PUBLIC --
WHOSE INTERESTS THE INJUNCTION MAY AFFECT."  INLAND STEEL CO. V. UNITED
STATES, 306 U.S. 153, 157.  THAT POWER EXISTS WHETHER THE COMMISSION'S
AUTHORITY OVER RATES IS CHALLENGED UNDER 49 U.S.C. ^ 15(1) AS BEING
UNJUST OR UNREASONABLE OR UNDER 49 U.S.C. ^ 15(7) RELATING, AS HERE, TO
"A NEW INDIVIDUAL OR JOINT RATE, FARE, OR CHARGE."  IN ALL CASES THE
DISTRICT COURT BY REASON OF 28 U.S.C. ^ 1336(A) SITS AS A COURT OF
EQUITY. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
REHNQUIST JOIN, CONCURRING IN THE REVERSAL OF THE INJUNCTION AND
DISSENTING FROM THE AFFIRMANCE OF THE REMAND TO THE COMMISSION. 

I DISSENT BECAUSE THE DISTRICT COURT ERRED BOTH IN HOLDING THAT THE
COMMISSION HAD INADEQUATELY EXPLAINED THE BASIS FOR ITS JUDGMENT AND IN
SUSPENDING THE NEW INTRANSIT INSPECTION TARIFF BEYOND THE TIME THE
STATUTE PERMITS NEW RATES TO BE SUSPENDED WITHOUT A FINDING THAT THEY
ARE UNJUST AND UNREASONABLE. 

AS TO THE LATTER, 49 U.S.C. ^ 15(7) FORBIDS THE SUSPENSION OF NEW
FREIGHT RATES FOR MORE THAN SEVEN MONTHS WITHOUT THE REQUISITE FINDING
OF UNREASONABLENESS BY THE COMMISSION.  ONLY THE COMMISSION MAY SUSPEND
IN THE FIRST INSTANCE; AND IF THE AGENCY REFUSES TO DO SO, THE COURT IS
POWERLESS ITSELF TO SUSPEND.  THE COMMISSION MAY POSTPONE EFFECTIVENESS
OF NEW RATES FOR SEVEN MONTHS, BUT IF IT DOES, THE STATUTE COMMANDS
THAT, ABSENT THE APPROPRIATE ORDER OF THE COMMISSION WITHIN THAT
PERIOD, "THE PROPOSED CHANGE OF RATE . . . SHALL GO INTO EFFECT . . ." 
TO PERMIT THE DISTRICT COURT NEVERTHELESS TO EXTEND THIS PERIOD SEEMS
TO ME TO BE FLATLY CONTRARY TO THE WILL OF CONGRESS.  I THEREFORE
CANNOT AGREE THAT, ALTHOUGH THE DISTRICT COURT HAS NO STATUTORY POWER
TO DO SO, IT NEVERTHELESS RETAINS SUFFICIENT POWER TO ENJOIN THE RATES
AS "ANCILLARY TO THE GENERAL EQUITABLE POWERS OF THE REVIEWING COURT,
AND PROTECTIVE OF ITS JURISDICTION."  ANTE, P. 819.  AS I SEE IT, THE
DISTRICT COURT CONTRAVENED THE PRECEPTS OF ARROW TRANSPORTATION CO. V.
SOUTHERN R. CO., 372 U.S. 658 (1963).     AS FOR THE REMAND TO THE
COMMISSION, THERE IS SOMEWHAT MORE TO BE SAID.  THE COMMISSION FOUND,
AND IT IS NOT QUESTIONED BY THE DISTRICT COURT OR BY THE MAJORITY HERE,
THAT IN-TRANSIT INSPECTION OF GRAIN IS NOT AN ESSENTIAL PART OF
TRANSPORATION SERVICE BUT ONLY ANCILLARY TO IT; THAT THE PREMARKETING
INSPECTION OF GRAIN, IN TRANSIT OR OTHERWISE, IS NO LONGER REQUIRED BY
FEDERAL LAW; THAT IN-TRANSIT INSPECTION OF GRAIN HAS BEEN THE REGULAR
PRACTICE IN WESTERN TERRITORY, TO SOME EXTENT THE PRACTICE IN SOUTHERN
TERRITORY, BUT NOT IN EASTERN TERRITORY; THAT THE LINE-HAUL RATES FOR
GRAIN IN WESTERN AND SOUTHERN TERRITORIES ESTABLISHED BY THE RAILROADS
OR PRESCRIBED BY THE COMMISSION HAVE PROVIDED ONE FREE IN-TRANSIT
INSPECTION STOP, BUT A SEPARATE CHARGE FOR THAT SERVICE IS THE PRACTICE
IN EASTERN TERRITORY; /1/  AND THAT, BECAUSE OF RECENT DEVELOPMENTS IN
TRANSIT INSPECTION IS NO LONGER AN ESSENTIAL SERVICE FOR THE ORDERLY
MARKETING OF GRAIN IN WESTERN AND SOUTHERN TERRITORIES.  FURTHERMORE,
THE UNQUESTIONED FINDING OF THE COMMISSION WAS THAT THE PRINCIPAL
MOTIVATION FOR IMPOSING A SEPARATE CHARGE FOR IN-TRANSIT GRAIN
INSPECTION WAS NOT TO INCREASE RAILROAD REVENUES THROUGH COLLECTION OF
THE CHARGE ITSELF BUT TO PROMOTE EFFICIENT UTILIZATION OF FREIGHT CARS
BY DISCOURAGING THE PRACTICE OF IN-TRANSIT INSPECTION WHICH HAD PROVED
EXTREMELY WASTEFUL IN TERMS OF CAR UTILIZATION.  THE COMMISSION
FINDING, ALSO UNDISTRUBED, WAS THAT THE SEPARATELY STATED INSPECTION
FEE WOULD DISCOURAGE THE PRACTICE OF IN-TRANSIT INSPECTION, WOULD
CONTRIBUTE TO A MORE EFFICIENT UTILIZATION OF FREIGHT CARS, AND HENCE
HELP RELIEVE THE UNQUESTIONED GRAIN-CAR SHORTAGE. 

WITH THESE IMPORTANT PRELIMINARY FINDINGS AND CONCLUSIONS BEHIND IT,
THE COMMISSION EXAMINED IN DETAIL THE REASONABLENESS OF THE SEPARATE
CHARGE BEING IMPOSED FOR IN-TRANSIT INSPECTION OF GRAIN.  ITS
CONCLUSION WAS THAT THE CHARGE WAS REASONABLE, A JUDGMENT NOT OVER
TURNED EITHER HERE OR IN THE DISTRICT COURT.  FINALLY, THE COMMISSION
NOTED THAT BY THE TERMS OF THE NEW TARIFF ITSELF, SEPARATE IN-TRANSIT
INSPECTION CHARGES COULD NOT BE COLLECTED WHERE THE COMBINATION OF THE
NEW, SEPARATE CHARGE AND THE EXISTING LINE-HAUL RATE EXCEEDED THE
MAXIMUM REASONABLE LEVEL OF GRAIN RATES ESTABLISHED IN DOCKET 17,000,
PART 7, GRAIN AND GRAIN PRODUCTS, 205 I.C.C. 301 (1934); 215 I.C.C. 83
(1936), AS RAISED BY SUBSEQUENT GENERAL REVENUE INCREASES.  DOCKET
17,000, PART 7, RATE STRUCTURE INVESTIGATION, WAS A MAJOR NATIONAL
EFFORT, A COMPREHENSIVE INVESTIGATION OF RATES ON AGRICULTURAL
PRODUCTS, AND RESULTED, AMONG OTHER THINGS, IN THE COMMISSION'S
PRESCRIBING MAXIMUM REASONABLE FREIGHT RATE LEVELS FOR MOVEMENTS OF
GRAIN.  SINCE THAT TIME, THERE HAVE BEEN GENERAL RATE INCREASES FOR
REVENUE PURPOSES, IN THE COURSE OF WHICH THE RATES ON AGRICULTURAL
PRODUCTS, AND RESULTED, AMONG OTHER THINGS, IN THE COMMISSION'S
PRESCRIBING MAXIMUM REASONABLE FREIGHT RATE LEVELS FOR MOVEMENTS OF
GRAIN.  SINCE THAT TIME, THERE HAVE BEEN GENERAL RATE INCREASES FOR
REVENUE PURPOSES, IN THE COURSE OF WHICH THE RATES ON GRAIN AND THEIR
STRUCTURE AS REQUIRED BY THE 1934 AND 1936 DETERMINATIONS HAVE BEEN
GIVEN SPECIAL ATTENTION.  SEE, FOR EXAMPLE, INCREASED FREIGHT RATES,
1967, 332 I.C.C. 280, 300 (1968). 

UNDER THE NEW TARIFFS NOW FILED, AS I HAVE SAID, IF THE APPLICABLE
LINE-HAUL RATE ON THE PARTICULAR GRAIN MOVEMENT INVOLVED IS AT THE
MAXIMUM REASONABLE LEVEL THERETOFORE PRESCRIBED BY THE COMMISSION IN
PREVIOUS PROCEEDINGS, NO SEPARATE IN-TRANSIT INSPECTION CHARGE IS
IMPOSED OR ALLOWABLE, NOR MAY THE COMBINATION OF THE NEW CHARGE AND THE
EXISTING LINE-HAUL RATE COLLECTED BY THE RAILROAD EXCEED THE MAXIMUM
ALLOWABLE RATE AS PREVIOUSLY DETERMINED.  THIS IS THE KEY TO
UNDERSTANDING THAT, IN APPROVING THE SEPARATE INSPECTION CHARGE, THE
COMMISSION DID NOT IGNORE ITS LONGSTANDING RULE THAT RAILROADS MAY NOT
IMPOSE SEPARATE CHARGES FOR AN ANCILLARY SERVICE PREVIOUSLY FURNISHED
UNDER A LINE-HAUL RATE UNLESS BOTH THE REASONABLENESS OF THE SEPARATE
CHARGE AND THE LINE-HAUL RATE ARE SCRUTINIZED.  TRANSIT CHARGES,
SOUTHERN TERRITORY, 332 I.C.C. 664, 683 - 684 (1968), IS, FOR EXAMPLE A
RELATIVELY RECENT RESTATEMENT OF THE RULE.  /2/  THE COMMISSION THOUGHT
THIS RULE NOT CONTROLLING HERE BECAUSE, IN THE FIRST PLACE, THE
MAGNITUDE OF THE TASK OF JUSTIFYING EACH ONE OF A COUNTLESS NUMBER OF
LINE-HAUL GRAIN RATES WOULD, AS A PRACTICAL MATTER, PROHIBIT THE
IMPOSITION OF A SEPARATE IN-TRANSIT INSPECTION CHARGE AND SO FRUSTRATE
THE IMPORTANT NONREVENUE GOAL OF DISCOURAGING IN-TRANSIT INSPECTION AND
SO IMPROVING CAR UTILIZATION. 

BUT, MORE FUNDAMENTALLY, THE COMMISSION IN ANY EVENT DEEMED THE RULE
SATISFIED; FOR HERE THE REASONABLENESS OF THE LINE-HAUL RATE WAS
SUFFICIENTLY EXAMINED AND ENSURED BY PROOF THAT THE NEW CHARGE WAS
ITSELF REASONABLE AND BY PROHIBITING ITS COLLECTION IF THE TOTAL COST
OF THE GRAIN MOVEMENT -- ITS LINE-HAUL CHARGE PLUS THE SEPARATE
INSPECTION CHARGE -- EXCEEDED THE MAXIMUM REASONABLE RATE THERETOFORE
PRESCRIBED BY THE COMMISSION, THAT IS, THE MAXIMUM REASONABLE RATE THE
COMMISSION HAD THERETOFORE PRESCRIBED FOR BOTH THE TRANSPORTATION
SERVICE AND THE PRIVILEGE OF IN-TRANSIT INSPECTION. 

THIS APPROACH SEEMS STRAIGHTFORWARD AND ADEQUATE.  KEEPING IN MIND
THAT DOCKET 17,000, PART 7, AS WAS CUSTOMARY IN WESTERN TERRITORY,
PRESCRIBED RATES FOR GRAIN MOVEMENTS PERMITTING ONE IN-TRANSIT
INSPECTION WITHOUT EXTRA CHARGE, LET US ASSUME, FOR EXAMPLE, THAT THE
MAXIMUM RATE PRESCRIBED BY THE COMMISSION FOR A PARTICULAR GRAIN
MOVEMENT WITH IN-TRANSIT INSPECTION PRIVILEGES WAS 120.  ASSUME FURTHER
WHAT IS THE RECURRING SITUATION IN THE CASE BEFORE US -- THAT THE
RAILROAD IS CHARGING LESS THAN IT MAY, SAY 100, FOR THE GRAIN MOVEMENT
WITH THAT PRIVILEGE.  THE RAILROAD THEN PUBLISHES A TARIFF UNDER WHICH
THE LINE-HAUL RATE OF 100 NO LONGER ENTITLES THE SHIPPER TO IN-TRANSIT
INSPECTION, AND A SEPARATE CHARGE OF 20 IS IMPOSED ON THOSE WHO WANT
THAT SERVICE.  THE LINE-HAUL CHARGE PLUS THE SEPARATE IN-TRANSIT
INSPECTION CHARGE DOES NOT EXCEED WHAT THE COMMISSION HAS HERETOFORE
RULED THE RAILROAD MAY COLLECT FOR BOTH THE TRANSPORTATION AND THE
INSPECTION SERVICE.  THIS CALCULUS SEEMS TO ME AN ADEQUATE BASIS FOR
CONCLUDING THAT THE LINE-HAUL RATE OF 100 IS ITSELF WITHIN THE ZONE OF
REASONABLENESS.  IF A RAILROAD MAY CHARGE 120 FOR A GRAIN MOVEMENT WITH
IN-TRANSIT INSPECTION PROVIDED, AND THE INSPECTION STOP IS PROVED
REASONABLY WORTH 20, WHY SHOULD THERE ALSO BE OCCASION FOR CONSIDERING
THE REASONABLENESS OF 100 AS A LINE-HAUL RATE AND SO PROVING AGAIN WHAT
THE COMMISSION PREVIOUSLY FOUND -- THAT 120 IS A REASONABLE CHARGE FOR
BOTH SERVICES? 

THE DISTRICT COURT THOUGHT THE COMMISSION IGNORED SECRETARY OF
AGRICULTURE V. UNITED STATES, 347 U.S. 645 (1954), BUT I READ THAT CASE
FAR DIFFERENTLY.  THERE THE COURT, ALTHOUGH BEING OF THE OPINION THAT
THE COMMISSION HAD NOT ADEQUATELY EXPLAINED WHY IT WAS APPROVING A
SEPARATE CHARGE WITHOUT EXAMINING THE LEGALITY OF THE LINE-HAUL RATE,
WAS CAREFUL TO POINT OUT THAT THE COMMISSION WAS NOT PRECLUDED "FROM
FOLLOWING A PROCEDURE FAIRLY ADAPTED TO THE UNIQUE CIRCUMSTANCES OF
THIS CASE"; NOR DID THE COURT QUESTION "THE COMMISSION'S POWER, UNDER
APPROPRIATE FINDINGS, TO APPROVE SUCH UNLOADING CHARGES WITHOUT
PURSUING ONE OF THESE COURSES.  IN DEALING WITH TECHNICAL AND COMPLEX
MATTERS LIKE THESE, THE COMMISSION MUST NECESSARILY HAVE WIDE
DISCRETION IN FORMULATING APPROPRIATE SOLUTIONS."  ID., AT 652.  THAT
CASE DOES NOT STAND FOR THE RULE THAT A SEPARATE CHARGE FOR AN
ANCILLARY SERVICE MAY IN NO CIRCUMSTANCES BE PERMITTED WITHOUT NEW
PROOF IN THAT PROCEEDING OF THE REASONABLENESS OF THE LINE-HAUL RATE. 

THE PRIOR DECISIONS OF THE COMMISSION RELIED UPON BY THE DISTRICT
COURT ESTABLISH CLEARLY ENOUGH THAT THE COMMISSION MUST BE SATISFIED
WITH THE REASONABLENESS OF THE LINE-HAUL RATE AS AN EXACTION FOR THE
REMAINING SERVICES BEFORE APPROVING A SEPARATE CHARGE FOR A SERVICE
PREVIOUSLY COVERED BY THE LINE-HAUL RATE.  TRANSIT CHARGES, SOUTHERN
TERRITORY, SUPRA.  TERMINAL CHARGES AT PACIFIC COAST PORTS, 255 I.C.C.
673 (1943); RECONSIGNMENT CASE NO. 3, 53 I.C.C. 455 (1919); LOADING OF
LESS-THAN-CARLOAD FREIGHT ON LIGHTERS IN NORFOLK, VA., HARBOR, 91
I.C.C. 394 (1924).  IN THESE CASES, THE CARRIERS SIMPLY FAILED TO CARRY
THEIR BURDEN OF PROOF. 

THE DISTRICT COURT ALSO CITED FOR THIS PROPOSITION GRAND FORKS
CHAMBER OF COMMERCE V. GREAT NORTHERN R. CO., 321 I.C.C. 356 (1963),
BUT THE COMMISSION IN THAT CASE, SEE ID., AT 360-362, DID PRECISELY
WHAT IT HAS DONE IN THIS ONE: IT APPROVED A SEPARATE IN-TRANSIT
INSPECTION CHARGE IN THE CASE OF SO-CALLED GROUP 3 RATES WHERE THE LINE
HAUL RATE AND THE NEW CHARGE TOGETHER WERE LESS THAN SO-CALLED GROUP 1
RATES PRESCRIBED IN GRAIN AND GRAIN PRODUCTS, 205 I.C.C. 301 (1934);
215 I.C.C. 83 (1936).  SEE ALSO PUBLIC SERVICE COMM'N OF NORTH DAKOTA
V. GREAT NORTHERN R. CO., 340 I.C.C. 739 (1972); 321 I.C.C. 347 (1963);
AGSCO CHEMICALS, INC. V. ALABAMA G.S.R. CO., 314 I.C.C. 725 (1961). 

NEITHER DO I UNDERSTAND WHY THE MAJORITY IS COMFORTED BY THE OPINION
IN CINCINNATI N.O. & T.P.R. CO. V. UNITED STATES, CIVIL ACTION NO. 6992
(SD OHIO, JAN. 12, 1970), IN WHICH THE DISTRICT COURT AFFIRMED, BUT ON
VERY LIMITED GROUNDS (GROUNDS THAT WOULD SAVE THE CASES BEFORE US NOW),
THE COMMISSION'S DISALLOWANCE OF A SEPARATE TRANSIT CHARGE FOR COTTON
MOVEMENTS BUT DISAPPROVED THE STRINGENT STANDARD BY WHICH THE
COMMISSION REQUIRED THE RAILROADS TO PROVE THE REASONABLENESS OF THE
RESULTING LINE-HAUL RATE.  THE DISTRICT COURT RESTATED THE PREVAILING
RUBRIC: 

"THE QUESTION HERE IS WHAT SHOULD THE CARRIER BE PAID FOR A SERVICE
WHICH IT HAS BEEN RENDERING, AND HAS BEEN CHARGING FOR, AND HAS BEEN
PAID FOR (ONE KNOWETH NOT WHAT) WHICH IT PROPOSES TO SEPARATE AND
CHARGE SEPARATELY FOR.  BOTH THE COURTS AND THE COMMISSION HAVE
CONSISTENTLY HELD THAT WHAT IS A JUST AND REASONABLE RATE FOR THE
SERVICE TO BE SEPARATED AND CHARGED FOR SEPARATELY CANNOT BE DETERMINED
BY EXAMINING ONLY THE TYPICAL QUESTIONS OF COST, ETC., WITH RESPECT TO
THE SEPARATE SERVICE.  ON THE CONTRARY, THE TYPICAL QUESTIONS MUST BE
DIRECTED TO THE OVERALL OR COMBINED PICTURE SO THAT ONE MAY CONCLUDE
(A) THAT THE RATE FOR THE SEPARATED SERVICE, LOOKED AT BY ITSELF IN THE
LIGHT OF THE APPLICABLE QUESTIONS, IS JUST AND REASONABLE; AND (B) THAT
THE REMAINING RATE FOR THE SERVICES, SANS THE SEPARATED SERVICE, IS NOT
RENDERED UNJUST OR UNREASONABLE."  THE DISTRICT COURT CONTINUED: 

"WHETHER THE EXAMINATION IS IN TERMS OF 'WHAT PORTION OF THE LINE
HAUL RATE REPRESENTED THE RATE FOR THE SERVICE TO BE SEPARATED,' OR
WHETHER THE SEARCH IN TERMINOLOGY IS FOR THE ANSWER TO THIS QUESTION:
DOES THE NEW AGGREGATE RATE, COMPOSED OF LINE-HAUL PLUS TRANSIT RATES
REPRESENT A JUST AND REASONABLE RATE FOR ALL OF THE SERVICES (THE
AGGREGATE OF THE SEVERED AND THE NONSEVERED) -- THE PRINCIPLE IS THE
SAME."  A FEW PARAGRAPHS LATER, THE COURT REPEATED THE SAME ALTERNATE
APPROACH.  THIS COURT AFFIRMED THE DISTRICT COURT SUMMARILY.  400 U.S.
932 (1970).  IN THE LITIGATION NOW BEFORE US THE TOTAL OF THE LINE-HAUL
RATE AND THE SEPARATE IN-TRANSIT CHARGE WILL IN NO CASE EXCEED WHAT THE
COMMISSION HAS HERETOFORE FOUND TO BE A REASONABLE CHARGE FOR THE
AGGREGATE SERVICE. 

THE MAXIMUM PERMISSIBLE RATES FOR GRAIN MOVEMENTS WITH IN-TRANSIT
INSPECTION PRIVILEGES WERE ESTABLISHED SOME YEARS ASO, IT IS TRUE, BUT
THEY HAVE BEEN SUBJECT TO REPEATED EXAMINATION UPON THE OCCASIONS OF
GENERAL RATE INCREASES AND, AS THIS LITIGATION ITSELF SHOWS, THEY ARE
FAR FROM DEAD LETTERS FROM THE STANDPOINT OF EITHER THE RAILROADS OR
THE COMMISSION.  THEY REMAIN THE FOUNDATION OF THE COMMISSION'S OPINION
AS TO WHAT JUST AND REASONABLE GRAIN RATES ARE WITH IN-TRANSIT
PRIVILEGES FURNISHED BY THE RAILROAD.  I SEE NO REASON FOR NOU
DISAGREEING WITH THE COMMISSION'S JUDGMENT THAT THE REASONABLENESS OF A
LINE-HAUL RATE LOWER THAN THE MAXIMUM ALLOWABLE HAS BEEN SUFFICIENTLY
RE-EXAMINED TO PERMIT IMPOSITION OF A SEPARATE IN-TRANSIT INSPECTION
CHARGE, IN ITSELF FOUND REASONABLE, WHEN IT IS ALSO DETERMINED THAT THE
EXISTING LINE-HAUL RATE AND THE NEW INSPECTION CHARGE TOGETHER TOTAL
LESS THAN THE MAXIMUM COMMISSION-PRESCRIBED RATE FOR THE TWO SERVICES
COMBINED.  SURELY THIS PRESENTS AN INADEQUATE OCCASION OR CONTEXT IN
WHICH TO FRUSTRATE WHAT THE COMMISSION FOUND TO BE A PROMISING EFFORT
TO SOLVE A CRITICAL PROBLEM -- THE FREIGHT CAR SHORTAGE -- BY SEEKING
TO DETER A WASTEFUL PRACTICE NOT INDISPENSABLE OR EVEN, IN THE
COMMISSION'S VIEW, UNUSUALLY IMPORTANT TO THE ORDERLY MARKETING OF
GRAIN UNDER MODERN CONDITIONS. 

FOR THESE REASONS, I RESPECTFULLY DISSENT. 

/1/  THE COMMISSION NOTED: 

"IT IS AGAIN EMPHASIZED THAT THE MAJOR IMPACT OF THE PROPOSAL UNDER
CONSIDERATION WILL BE ON THE MOVEMENT OF GRAIN IN THE WESTERN
DISTRICT.  MOST INSPECTIONS OCCUR IN THIS TERRITORY.  THERE IS
PRESENTLY EFFECTIVE A SEPARATE CHARGE FOR THIS SERVICE IN THE EAST.  A
SUBSTANTIAL INCREASE IN THOSE CHARGES WILL RESULT, HOWEVER, IF THE
PROPOSED CHARGES ARE PERMITTED TO BECOME EFFECTIVE.  THE NUMBER OF IN
TRANSIT INSPECTIONS IN THE SOUTH IS LIMITED AND TAKE PLACE CHIEFLY AT
THE PORTS ON EXPORT GRAIN TONNAGE.  THERE IS LITTLE, IF ANY, OPPOSITION
TO ESTABLISHMENT OF THE CHARGES IN SOUTHERN TERRITORY.  PRACTICALLY ALL
OF THE CONTROVERSY IS CONCERNED WITH ESTABLISHMENT OF THE SEPARATE
CHARGE FOR THE FIRST INSPECTION OF GRAIN WITHIN THE WESTERN DISTRICT." 
339 I.C.C. 364, 385. 

/2/  THE COMMISSION'S ORDER WAS SUSTAINED, ON OTHER GROUNDS, IN
CINCINNATI, N.O. & T.P.R. CO. V. UNITED STATES, CIVIL ACTION NO. 6692
(SD OHIO, JAN. 12, 1970), AFF'D, 400 U.S. 932 (1970).  THE DISTRICT
COURT SUSTAINED THE COMMISSION ON THE BASIS THAT THE PROPOSED INCREASE
IN CHARGES MIGHT WELL RESULT IN A SUBSTANTIAL DIVERSION OF THE
CONSIDERED TRAFFIC, WITH A DIMINUTION, RATHER THAN AN INCREASE, IN
REVENUES.  IN THE PRESENT CASE, THE COMMISSION NOTED:  "SIMILAR
CONCLUSIONS ARE NOT WARRANTED HERE."     EARL E. POLLOCK ARGUED THE
CAUSE FOR APPELLANTS IN NO. 72 - 214.  WITH HIM ON THE BRIEFS WERE
WILLIAM F. COTTRELL AND CHRISTOPHER A. MILLS.  BETTY JO CHRISTIAN
ARGUED THE CAUSE FOR APPELLANT IN NO. 72 - 433.  WITH HER ON THE BRIEFS
WERE FRITZ R. KAHN AND HANFORD O'HARA. 

DANIEL J. SWEENEY ARGUED THE CAUSE FOR WICHITA BOARD OF TRADE ET
AL., APPELLEES IN BOTH CASES.  WITH HIM ON THE BRIEF WAS HAROLD E.
SPENCER, WILLIAM A. IMHOF ARGUED THE CAUSE FOR THE SECRETARY OF
AGRICULTURE.  WITH HIM ON THE BRIEF WERE JOHN A. KNEBEL, HAROLD M.
CARTER, AND KENNETH H. VAIL. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL KAUPER, KEITH
A. JONES, AND HOWARD E. SHAPIRO FILED A MEMORANDUM FOR THE UNITED
STATES. 
..END :










BARNES V. UNITED STATES 412 U.S. 837 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT 

     NO. 72 - 5443.  ARGUED MARCH 20, 1973--DECIDED JUNE 18, 1973;
466 F.2D 1361, AFFIRMED. 


    PETITIONER WAS CONVICTED OF POSSESSING UNITED STATES TREASURY

  CHECKS STOLEN FROM THE MAILS, KNOWING THEM TO BE STOLEN; FORGING;

  AND UTTERING THE CHECKS, KNOWING THE ENDORSEMENTS TO BE FORGED. 

  THE DISTRICT COURT INSTRUCTED THE JURY THAT "(POSSESSION OF

  RECENTLY STOLEN PROPERTY, IF NOT SATISFACTORILY EXPLAINED, IS

  ORDINARILY A CIRCUMSTANCE FROM WHICH YOU MAY REASONABLY DRAW THE

  INFERENCE AND FIND, IN THE LIGHT OF THE SURROUNDING CIRCUMSTANCES

SHOWN BY THE EVIDENCE IN THE CASE, THAT THE PERSON IN POSSESSION

  KNEW THE PROPERTY HAD BEEN STOLEN"  THE COURT OF APPEALS

  AFFIRMED, FINDING NO LACK OF "RATIONAL CONNECTION" BETWEEN

  UNEXPLAINED POSSESSION OF RECENTLY STOLEN PROPERTY AND KNOWLEDGE

  THAT THE PROPERTY WAS STOLEN.  HELD:  THE INSTRUCTION COMPORTS

  WITH DUE PROCESS.  PP. 841 - 847. 

      (A) IF A STATUTORY INFERENCE SUBMITTED TO THE JURY AS

  SUFFICIENT TO SUPPORT CONVICTION SATISFIES THE REASONABLE-DOUBT

  STANDARD (I.E., THE EVIDENCE NECESSARY TO INVOKE THE INFERENCE IS

  SUFFICIENT FOR A RATIONAL JUROR TO FIND THE INFERRED FACT BEYOND

  A REASONABLE DOUBT) AS WELL AS THE MORE-LIKELY-THAN-NOT STANDARD,

  THEN IT CLEARLY ACCORDS WITH DUE PROCESS.  PP. 841 - 843. 

     (B) HERE, WHERE THE EVIDENCE ESTABLISHED THAT PETITIONER

  POSSESSED RECENTLY STOLEN TREASURY CHECKS PAYABLE TO PERSONS HE

  DID NOT KNOW AND IT PROVIDED NO PLAUSIBLE EXPLANATION FOR SUCH

POSSESSION CONSISTENT WITH INNOCENCE, THE TRADITIONAL COMMON-LAW

  INFERENCE SATISFIES THE REASONABLE-DOUBT STANDARD, THE MOST

  STRINGENT STANDARD APPLIED BY THE COURT IN JUDGING PERMISSIVE

  CRIMINAL LAW INFERENCES, AND, THEREFORE, COMPORTS WITH DUE

  PROCESS.  PP. 843 - 846. 

     (C) ALTHOUGH THE INTRODUCTION OF ANY EVIDENCE, DIRECT OR

  CIRCUMSTANTIAL, TENDING TO IMPLICATE THE DEFENDANT IN THE ALLEGED

  CRIME INCREASES THE PRESSURE ON HIM TO TESTIFY, THE MERE MASSING

  OF EVIDENCE AGAINST HIM CANNOT BE REGARDED AS A VIOLATION OF HIS

  PRIVILEGE AGAINST SELF-INCRIMINATION.  YEE HEM V. UNITED STATES,

  268 U.S. 178, 185.  PP. 846 - 847. 

     (D) IN LIGHT OF ITS LEGISLATIVE HISTORY AND CONSISTENT
JUDICIAL

  CONSTRUCTION, THE STATUTE REQUIRES ONLY KNOWLEDGE THAT THE CHECKS

  WERE STOLEN, AND NOT KNOWLEDGE THAT THEY WERE STOLEN FROM THE

  MAILS.  P. 847. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 848.  BRENNAN, J.,
FILED A DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED, POST, P.
852. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

PETITIONER BARNES WAS CONVICTED IN UNITED STATES DISTRICT COURT ON TWO
COUNTS OF POSSESSING UNITED STATES TREASURY CHECKS STOLEN FROM THE
MAILS, KNOWING THEM TO BE STOLEN, TWO COUNTS OF FORGING THE CHECKS, AND
TWO COUNTS OF UTTERING THE CHECKS, KNOWING THE ENDORSEMENTS TO BE
FORGED.  THE TRIAL COURT INSTRUCTED THE JURY THAT ORDINARILY IT WOULD
BE JUSTIFIED IN INFERRING FROM UNEXPLAINED POSSESSION OF RECENTLY
STOLEN MAIL THAT THE DEFENDANT POSSESSED THE MAIL WITH KNOWLEDGE THAT
IT WAS STOLEN.  WE GRANTED CERTIORARI TO CONSIDER WHETHER THIS
INSTRUCTION COMPORTS WITH DUE PROCESS.  409 U.S. 1037 (1972). 

THE EVIDENCE AT PETITIONER'S TRIAL ESTABLISHED THAT ON JUNE 2, 1971,
HE OPENED A CHECKING ACCOUNT USING THE PSEUDONYM "CLARENCE SMITH."  ON
JULY 1, AND JULY 3, 1971, THE UNITED STATES DISBURSING OFFICE AT SAN
FRANCISCO MAILED FOUR GOVERNMENT CHECKS IN THE AMOUNTS OF $269.02,
$154.70, $184, AND $168.80 TO NETTIE LEWIS, ALBERT YOUNG, ARTHUR
SALAZAR, AND MARY HERNANDEZ, RESPECTIVELY.  ON JULY 8, 1971, PETITIONER
DEPOSITED THESE FOUR CHECKS INTO THE "SMITH" ACCOUNT.  EACH CHECK BORE
THE APPARENT ENDORSEMENT OF THE PAYEE AND A SECOND ENDORSEMENT BY
"CLARENCE SMITH." 

AT PETITIONER'S TRIAL THE FOUR PAYEES TESTIFIED THAT THEY HAD NEVER
RECEIVED, ENDORSED, OR AUTHORIZED ENDORSEMENT OF THE CHECKS.  A
GOVERNMENT HANDWRITING EXPERT TESTIFIED THAT PETITIONER HAD MADE THE
"CLARENCE SMITH" ENDORSEMENT ON ALL FOUR CHECKS AND THAT HE HAD SIGNED
THE PAYEES' NAMES ON THE LEWIS AND HERNANDEZ CHECKS.  /1/  ALTHOUGH
PETITIONER DID NOT TAKE THE STAND, A POSTAL INSPECTOR TESTIFIED TO
CERTAIN STATEMENTS MADE BY PETITIONER AT A POST-ARREST INTERVIEW. 
PETITIONER EXPLAINED TO THE INSPECTOR THAT HE RECEIVED THE CHECKS IN
QUESTION FROM PEOPLE WHO SOLD FURNITURE FOR HIM DOOR TO DOOR AND THAT
THE CHECKS HAD BEEN SIGNED IN THE PAYEES' NAMES WHEN HE RECEIVED THEM. 
PETITIONER FURTHER STATED THAT HE COULD NOT NAME OR IDENTIFY ANY OF THE
SALESPEOPLE.  NOR COULD HE SUBSTANTIATE THE EXISTENCE OF ANY FURNITURE
ORDERS BECAUSE THE SALESPEOPLE ALLEGEDLY WROTE THEIR ORDERS ON SCRATCH
PAPER THAT HAD NOT BEEN RETAINED.  PETITIONER ADMITTED THAT HE EXECUTED
THE CLARENCE SMITH ENDORSEMENTS AND DEPOSITED THE CHECKS BUT DENIED
MAKING THE PAYEES' ENDORSEMENTS.  /2/ 

THE DISTRICT COURT INSTRUCTED THE JURY THAT "(POSSESSION OF RECENTLY
STOLEN PROPERTY, IF NOT SATISFACTORILY EXPLAINED, IS ORDINARILY A
CIRCUMSTANCE FROM WHICH YOU MAY REASONABLY DRAW THE INFERENCE AND FIND,
IN THE LIGHT OF THE SURROUNDING CIRCUMSTANCES SHOWN BY THE EVIDENCE IN
THE CASE, THAT THE PERSON IN POSSESSION KNEW THE PROPOERTY HAD BEEN
STOLEN"  /3/ 

THE JURY BROUGHT IN GUILTY VERDICTS ON ALL SIX COUNTS, AND THE
DISTRICT COURT SENTENCED PETITIONER TO CONCURRENT THREE-YEAR PRISON
TERMS.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED, FINDING NO
LACK OF "RATIONAL CONNECTION" BETWEEN UNEXPLAINED POSSESSION OF
RECENTLY STOLEN PROPERTY AND KNOWLEDGE THAT THE PROPERTY WAS STOLEN. 
466 F.2D 1361 (1972).  BECAUSE PETITIONER RECEIVED IDENTICAL CONCURRENT
SENTENCES ON ALL SIX COUNTS, THE COURT DECLINED TO CONSIDER HIS
CHALLENGES TO CONVICTION ON THE FORGERY AND UTTERING COUNTS.  WE
AFFIRM. 

        I 

WE BEGIN OUR CONSIDERATION OF THE CHALLENGED JURY INSTRUCTION WITH A
REVIEW OF FOUR RECENT DECISIONS WHICH HAVE CONSIDERED THE VALIDITY
UNDER THE DUE PROCESS CLAUSE OF CRIMINAL LAW PRESUMPTIONS AND
INFERENCES.  TURNER V. UNITED STATES, 396 U.S. 398 (1970); LEARY V.
UNITED STATES, 395 U.S. 6 (1969); UNITED STATES V. ROMANO, 382 U.S. 136
(1965); UNITED STATES V. GAINEY, 380 U.S. 63 (1965). 

IN UNITED STATES V. GAINEY, SUPRA, THE COURT SUSTAINED THE
CONSTITUTIONALITY OF AN INSTRUCTION TRACKING A STATUTE WHICH AUTHORIZED
THE JURY TO INFER FROM DEFENDANT'S UNEXPLAINED PRESENCE AT AN ILLEGAL
STILL THAT HE WAS CARRYING ON "THE BUSINESS OF A DISTILLER OR RECTIFIER
WITHOUT HAVING GIVEN BOND AS REQUIRED BY LAW."  RELYING ON THE HOLDING
OF TOT V. UNITED STATES, 319 U.S. 463, 467 (1943), THAT THERE MUST BE A
"RATIONAL CONNECTION BETWEEN THE FACT PROVED AND THE ULTIMATE FACT
PRESUMED,"  THE COURT UPHELD THE INFERENCE ON THE BASIS OF THE
COMPREHENSIVE NATURE OF THE "CARRYING ON" OFFENSE AND THE COMMON
KNOWLEDGE THAT ILLEGAL STILLS ARE SECLUDED, SECRET OPERATIONS.  THE
FOLLOWING TERM THE COURT DETERMINED, HOWEVER, THAT PRESENCE AT AN
ILLEGAL STILL COULD NOT SUPPORT THE INFERENCE THAT THE DEFENDANT WAS IN
POSSESSION, CUSTODY, OR CONTROL OF THE STILL, A NARROWER OFFENSE. 
"PRESENCE IS RELEVANT AND ADMISSIBLE EVIDENCE IN A TRIAL ON A
POSSESSION CHARGE; BUT ABSENT SOME SHOWING OF THE DEFENDANT'S FUNCTION
AT THE STILL, ITS CONNECTION WITH POSSESSION IS TOO TENUOUS TO PERMIT A
REASONABLE INFERENCE OF GUILT -- 'THE INFERENCE OF THE ONE FROM PROOF
OF THE OTHER IS ARBITRARY . . .'  TOT V. UNITED STATES, 319 U.S. 463,
467."  UNITED STATES V. ROMANO, SUPRA, AT 141. 

THREE AND ONE-HALF YEARS AFTER ROMANO, THE COURT IN LEARY V. UNITED
STATES, SUPRA, CONSIDERED A CHALLENGE TO A STATUTORY INFERENCE THAT
POSSESSION OF MARIHUANA, UNLESS SATISFACTORILY EXPLAINED, WAS
SUFFICIENT TO PROVE THAT THE DEFENDANT KNEW THAT THE MARIHUANA HAD BEEN
ILLEGALLY IMPORTED INTO THE UNITED STATES.  THE COURT CONCLUDED THAT IN
VIEW OF THE SIGNIFICANT POSSIBILITY THAT ANY GIVEN MARIHUANA WAS
DOMESTICALLY GROWN AND THE IMPROBABILITY THAT A MARIHUANA USER WOULD
KNOW WHETHER HIS MARIHUANA WAS OF DOMESTIC OR IMPORTED ORIGIN, THE
INFERENCE DID NOT MEET THE STANDARDS SET BY TOT, GAINEY, AND ROMANO. 
REFERRING TO THESE THREEE CASES, THE LEARY COURT STATED THAT AN
INFERENCE IS "'IRRATIONAL' OR 'ARBITRARY,' AND HENCE UNCONSTITUTIONAL,
UNLESS IT CAN AT LEAST BE SAID WITH SUBSTANTIAL ASSURANCE THAT THE
PRESUMED FACT IS MORE LIKELY THAN NOT TO FLOW FROM THE PROVED FACT ON
WHICH IT IS MADE TO DEPEND."  395 U.S., AT 36.  IN A FOOTNOTE THE COURT
STATED THAT SINCE THE CHALLENGED INFERENCE FAILED TO SATISFY THE MORE
LIKELY-THAN-NOT STANDARD, IT DID NOT HAVE TO "REACH THE QUESTION
WHETHER A CRIMINAL PRESUMPTION WHICH PASSES MUSTER WHEN SO JUDGED MUST
ALSO SATISFY THE CRIMINAL 'REASONABLE DOUBT' STANDARD IF PROOF OF THE
CRIME CHARGED OR AN ESSENTIAL ELEMENT THEREOF DEPENDS UPON ITS USE." 
ID., AT 36 N. 64. 

FINALLY, IN TURNER V. UNITED STATES, SUPRA, DECIDED THE YEAR
FOLLOWING LEARY, THE COURT CONSIDERED THE CONSTITUTIONALITY OF
INSTRUCTING THE JURY THAT IT MAY INFER FROM POSSESSION OF HEROIN AND
COCAINE THAT THE DEFENDANT KNEW THESE DRUGS HAD BEEN ILLEGALLY
IMPORTED.  /4/  THE COURT NOTED THAT LEARY RESERVED THE QUESTION OF
WHETHER THE MORE-LIKELY-THAN-NOT OR THE REASONABLE-DOUBT STANDARD
CONTROLLED IN CRIMINAL CASES, BUT IT LIKEWISE FOUND NO NEED TO RESOLVE
THAT QUESTION.  IT HELD THAT THE INFERENCE WITH REGARD TO HEROIN WAS
VALID JUDGED BY EITHER STANDARD.  396 U.S., AT 416.  WITH REGARD TO
COCAINE, THE INFERENCE FAILED TO SATISFY EVEN THE MORE-LIKELY-THAN-NOT
STANDARD.  ID., AT 419. 

THE TEACHING OF THE FOREGOING CASES IS NOT ALTOGETHER CLEAR.  TO THE
EXTENT THAT THE "RATIONAL CONNECTION," "MORE LIKELY THAN NOT," AND
"REASONABLE DOUBT" STANDARDS BEAR AMBIGUOUS RELATIONSHIPS TO ONE
ANOTHER, THE AMBIGUITY IS TRACEABLE IN LARGE PART TO VARIATIONS IN
LANGUAGE AND FOCUS RATHER THAN TO DIFFERENCES OF SUBSTANCE.  WHAT HAS
BEEN ESTABLISHED BY THE CASES, HOWEVER, IS AT LEAST THIS:  THAT IF A
STATUTORY INFERENCE SUBMITTED TO THE JURY AS SUFFICIENT TO SUPPORT
CONVICTION SATISFIES THE REASONABLE-DOUBT STANDARD (THAT IS, THE
EVIDENCE NECESSARY TO INVOKE THE INFERENCE IS SUFFICIENT FOR A RATIONAL
JUROR TO FIND THE INFERRED FACT BEYOND A REASONABLE DOUBT) AS WELL AS
THE MORE-LIKELY-THAN-NOT STANDARD, THEN IT CLEARLY ACCORDS WITH DUE
PROCESS. 

IN THE PRESENT CASE WE DEAL WITH A TRADITIONAL COMMONLAW INFERENCE
DEEPLY ROOTED IN OUR LAW.  FOR CENTURIES COURTS HAVE INSTRUCTED JURIES
THAT AN INFERENCE OF GUILTY KNOWLEDGE MAY BE DRAWN FROM THE FACT OF
UNEXPLAINED POSSESSION OF STOLEN GOODS.  JAMES THAYER, WRITING IN HIS
PRELIMINARY TREATISE ON EVIDENCE (1898), CITED THIS INFERENCE AS THE
DESCENDANT OF A PRESUMPTION "RUNNING THROUGH A DOZEN CENTURIES."  /5/
ID., AT 327.  EARLY AMERICAN CASES CONSISTENTLY UPHELD INSTRUCTIONS
PERMITTING CONVICTION UPON SUCH AN INFERENCE, /6/  AND THE COURTS OF
APPEALS ON NUMEROUS OCCASIONS HAVE APPROVED INSTRUCTIONS ESSENTIALLY
IDENTICAL TO THE INSTRUCTION GIVEN IN THISE CASE.  /7/  THIS
LONGSTANDING AND CONSISTENT JUDICIAL APPROVAL OF THE INSTRUCTION,
REFLECTING ACCUMULATED COMMON EXPERIENCE, PROVIDES STRONG INDICATION
THAT THE INSTRUCTION COMPORTS WITH DUE PROCESS. 

THIS IMPRESSIVE HISTORICAL BASIS, HOWEVER, IS NOT IN ITSELF
SUFFICIENT TO ESTABLISH THE INSTRUCTION'S CONSTITUTIONALITY.  COMMON
LAW INFERENCES, LIKE THEIR STATUTORY COUNTERPARTS, MUST SATISFY DUE
PROCESS STANDARDS IN LIGHT OF PRESENT-DAY EXPERIENCE.  /8/  IN THE
PRESENT CASE THE CHALLENGED INSTRUCTION ONLY PERMITTED THE INFERENCE OF
GUILT FROM UNEXPLAINED POSSESSION OF RECENTLY STOLEN PROPERTY.  /9/
THE EVIDENCE ESTABLISHED THAT PETITIONER POSSESSED RECENTLY STOLEN
TREASURY CHECKS PAYABLE TO PERSONS HE DID NOT KNOW, AND IT PROVIDED NO
PLAUSIBLE EXPLANATION FOR SUCH POSSESSION CONSISTENT WITH INNOCENCE. 
ON THE BASIS OF THIS EVIDENCE ALONE COMMON SENSE AND EXPERIENCE TELL US
THAT PETITIONER MUST HAVE KNOWN OR BEEN AWARE OF THE HIGH PROBABILITY
THAT THE CHECKS WERE STOLEN.  CF. TURNER V. UNITED STATES, 396 U.S., AT
417; /10/  LEARY V. UNITED STATES, 395 U.S., AT 46.  SUCH EVIDENCE WAS
CLEARLY SUFFICIENT TO ENABLE THE JURY TO FIND BEYOND A REASONABLE DOUBT
THAT PETITIONER KNEW THE CHECKS WERE STOLEN.  SINCE THE INFERENCE THUS
SATISFIES THE REASONABLE-DOUBT STANDARD, THE MOST STRINGENT STANDARD
THE COURT HAS APPLIED IN JUDGING PERMISSIVE CRIMINAL LAW INFERENCES, WE
CONCLUDE THAT IT SATISFIES THE REQUIREMENTS OF DUE PROCESS.  /11/

        II 

PETITIONER ALSO ARGUES THAT THE PERMISSIVE INFERENCE IN QUESTION
INFRINGES HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  THE COURT HAS
TWICE REJECTED THIS ARGUMENT, /12/  TURNER V. UNITED STATES, 396 U.S.,
AT 417 - 418, YEE HEM V. UNITED STATES, 268 U.S. 178, 185 (1925), AND
WE FIND NO REASON TO RE-EXAMINE THE ISSUE AT LENGTH.  THE TRIAL COURT
SPECIFICALLY INSTRUCTED THE JURY THAT PETITIONER HAD A CONSTITUTIONAL
RIGHT NOT TO TAKE THE WITNESS STAND AND THAT POSSESSION COULD BE
SATISFACTORILY EXPLAINED BY EVIDENCE INDEPENDENT OF PETITIONER'S
TESTIMONY.  INTRODUCTION OF ANY EVIDENCE, DIRECT OR CIRCUMSTANTIAL,
TENDING TO IMPLICATE THE DEFENDANT IN THE ALLEGED CRIME INCREASES THE
PRESSURE ON HIM TO TESTIFY.  THERE MERE MASSING OF EVIDENCE AGAINST A
DEFENDANT CANNOT BE REGARDED AS A VIOLATION OF HIS PRIVILEGE AGAINST
SELF-INCRIMINATION.  YEE HEM V. UNITED STATES, SUPRA, AT 185. 

        III 

PETITIONER FURTHER CHALLENGES HIS CONVICTION ON THE GROUND THAT
THERE WAS INSUFFICIENT EVIDENCE THAT HE KNEW THE CHECKS WERE STOLEN
FROM THE MAILS.  HE CONTENDS THAT 18 U.S.C. ^ 1708 /13/  REQUIRES
KNOWLEDGE NOT ONLY THAT THE CHECKS WERE STOLEN, BUT SPECIFICALLY THAT
THEY WERE STOLEN FROM THE MAILS.  THE LEGISLATIVE HISTORY OF THE
STATUTE CONCLUSIVELY REFUTES THIS ARGUMENT /14/  AND THE COURTS OF
APPEALS THAT HAVE ADDRESSED THE ISSUE HAVE UNIFORMLY INTERPRETED THE
STATUTE TO REQUIRE ONLY KNOWLEDGE THAT THE PROPERTY WAS STOLEN.  /15/ 

SINCE WE FIND THAT THE STATUTE WAS CORRECTLY INTERPRETED AND THAT
THE TRIAL COURT'S INSTRUCTIONS ON THE INFERENCE TO BE DRAWN FROM
UNEXPLAINED POSSESSION OF STOLEN PROPERTY WERE FULLY CONSISTENT WITH
PETITIONER'S CONSTITUTIONAL RIGHTS, IT IS UNNECESSARY TO CONSIDER
PETITIONER'S CHALLENGES TO HIS CONVICTION ON THE FORGING AND UTTERING
COUNTS.  /16/

              AFFIRMED. 

/1/  THE WITNESS' FINDINGS WITH RESPECT TO THE YOUNG AND SALAZAR
SIGNATURES WERE INCONCLUSIVE. 

/2/  THIS EXPLANATION OF PETITIONER'S POSSESSION OF THE CHECKS,
PRESENTED THROUGH THE POSTAL INSPECTOR'S TESTIMONY, WAS ADOPTED BY
PETITIONER'S COUNSEL IN ARGUMENT TO THE JURY.  TR. 107 - 108. 

/3/  THE FULL INSTRUCTION ON THE INFERENCE ARISING FROM POSSESSION
OF STOLEN PROPERTY STATED: 

"POSSESSION OF RECENTLY STOLEN PROPERTY, IF NOT SATISFACTORILY
EXPLAINED, IS ORDINARILY A CIRCUMSTANCE FROM WHICH YOU MAY REASONABLY
DRAW THE INFERENCE AND FIND, IN THE LIGHT OF THE SURROUNDING
CIRCUMSTANCES SHOWN BY THE EVIDENCE IN THE CASE, THAT THE PERSON IN
POSSESSION KNEW THE PROPERTY HAD BEEN STOLEN. 

"HOWEVER, YOU ARE NEVER REQUIRED TO MAKE THIS INFERENCE.  IT IS THE
EXCLUSIVE PROVINCE OF THE JURY TO DETERMINE WHETHER THE FACTS AND
CIRCUMSTANCES SHOWN BY THE EVIDENCE IN THIS CASE WARRANT ANY INFERENCE
WHICH THE LAW PERMITS THE JURY TO DRAW FROM THE POSSESSION OF RECENTLY
STOLEN PROPERTY. 

"THE TERM 'RECENTLY' IS A RELATIVE TERM, AND HAS NO FIXED MEANING. 
WHETHER PROPERTY MAY BE CONSIDERED AS RECENTLY STOLEN DEPENDS UPON THE
NATURE OF THE PROPERTY, AND ALL THE FACTS AND CIRCUMSTANCES SHOWN BY
THE EVIDENCE IN THE CASE.  THE LONGER THE PERIOD OF TIME SINCE THE
THEFT THE MORE DOUBTFUL BECOMES THE INFERENCE WHICH MAY REASONABLY BE
DRAWN FROM UNEXPLAINED POSSESSION. 

"IF YOU SHOULD FIND BEYOND A REASONABLE DOUBT FROM THE EVIDENCE IN
THE CASE THAT THE MAIL DESCRIBED IN THE INDICTMENT WAS STOLEN, AND THAT
WHILE RECENTLY STOLEN THE CONTENTS OF SAID MAIL HERE, THE FOUR UNITED
STATES TREASURY CHECKS, WERE IN THE POSSESSION OF THE DEFENDANT YOU
WOULD ORDINARILY BE JUSTIFIED IN DRAWING FROM THOSE FACTS THE INFERENCE
THAT THE CONTENTS WERE POSSESSED BY THE ACCUSED WITH KNOWLEDGE THAT IT
WAS STOLEN PROPERTY, UNLESS SUCH POSSESSION IS EXPLAINED BY FACTS AND
CIRCUMSTANCES IN THIS CASE WHICH ARE IN SOME WAY CONSISTENT WITH THE
DEFENDANT'S INNOCENCE.     "IN CONSIDERING WHETHER POSSESSION OF
RECENTLY STOLEN PROPERTY HAS BEEN SATISFACTORILY EXPLAINED, YOU ARE
REMINDED THAT IN THE EXERCISE OF CONSTITUTIONAL RIGHTS THE ACCUSED NEED
NOT TAKE THE WITNESS STAND AND TESTIFY. 

"POSSESSION MAY BE SATISFACTORILY EXPLAINED THROUGH OTHER
CIRCUMSTANCES, OTHER EVIDENCE, INDEPENDENT OF ANY TESTIMONY OF THE
ACCUSED."  TR. 123 - 124. 

/4/  THE TURNER COURT ALSO CONSIDERED THE VALIDITY OF INFERRING THAT
A DEFENDANT KNOWINGLY PURCHASED, SOLD, DISPENSED, OR DISTRIBUTED A
NARCOTIC DRUG NOT IN OR FROM THE ORIGINAL PACKAGE BEARING TAX STAMPS
FROM THE FACT THAT THE DRUGS HAD NO TAX STAMPS WHEN FOUND IN THE
DEFENDANT'S POSSESSION.  26 U.S.C. ^ 4704(A) (1964 ED.).  THE COURT
UPHELD THE INFERENCE THAT A DEFENDANT POSSESSING UNSTAMPED HEROIN
KNOWINGLY PURCHASED IT IN VIOLATION OF THE STATUTE, BUT STRUCK DOWN THE
INFERENCE WITH REGARD TO COCAINE.  396 U.S., 398, 419 - 424. 

/5/  THAYER ALSO DESCRIBED THE HISTORICAL DEVELOPMENT OF THE
PRESUMPTION: "(THE LAWS OF INE (KING OF WESSEX, A. D. 688 - 725)
PROVIDE THAT, 'IF STOLEN PROPERTY BE ATTACHED WITH A CHAPMAN, AND HE
HAVE NOT BROUGHT IT BEFORE GOOD WITNESSES, LET HIM PROVE . . . THAT HE
WAS NEITHER PRIVY (TO THE THEFT) NOR THIEF; OR PAY AS WITE (FINE) XXXVI
SHILLINGS.'  TO BE FOUND THUS IN THE POSSESSION OF STOLEN GOODS WAS A
SERIOUS THING; IF THEY WERE RECENTLY STOLEN, THEN WAS ONE 'TAKEN WITH
THE MAINOUR,' -- A STATE OF THINGS THAT FORMERLY MIGHT INVOLVE
IMMEDIATE PUNISHMENT, WITHOUT A TRIAL; AND, LATER, A TRIAL WITHOUT A
FORMAL ACCUSATION; AND, LATER STILL, A PRESUMPTION OF GUILT WHICH, IN
THE ABSENCE OF CONTRARY EVIDENCE, JUSTIFIED A VERDICT, AND AT THE
PRESENT TIME IS VANISHING AWAY INTO THE MERE JUDICIAL RECOGNITION OF A
PERMISSIBLE INFERENCE . . ."  ID., AT 328.  (CITATIONS OMITTED.) 

/6/  SEE, E. G., WILSON V. UNITED STATES, 162 U.S. 613 (1896);
COMMONWEALTH V. MILLARD, 1 MASS. 6 (1804); KNICKERBOCKER V. PEOPLE, 43
N.Y. 177 (1870); STATE V. RAYMOND, 46 CONN. 345 (1878); COOK V. STATE,
84 TENN. 461 (1886). 

/7/  E. G., UNITED STATES V. RUSSO, 413 F.2D 432 (CA2 1969); UNITED
STATES V. SMITH, 446 F.2D 200 (CA4 1971); UNITED STATES V. WINBUSH, 428
F.2D 357 (CA6), CERT. DENIED, 400 U.S. 918 (1970); UNITED STATES V.
HOOD, 422 F.2D 737 (CA7), CERT. DENIED, 400 U.S. 820 (1970); UNITED
STATES V. DILELLA, 354 F.2D 584 (CA7 1965). 

/8/  THE REASONING OF THE STATUTORY-INFERENCE CASES IS APPLICABLE TO
ANALYSIS OF COMMON-LAW INFERENCES.  CF. UNITED STATES V. GAINEY, 380
U.S. 63, 70 (1965); RULES OF EVIDENCE FOR UNITED STATES COURTS AND
MAGISTRATES (PROPOSED NOV. 20, 1972), RULE 303(A), 56 F.R.D. 212. 
COMMON-LAW INFERENCES, HOWEVER, PRESENT FEWER CONSTITUTIONAL PROBLEMS. 
SUCH INFERENCES ARE INVOKED ONLY IN THE DISCRETION OF THE TRIAL JUDGE. 
WHILE STATUTES CREATING CRIMINAL LAW INFERENCES MAY BE INTERPRETED ALSO
TO PRESERVE THE TRIAL COURT'S TRADITIONAL DISCRETION IN DETERMINING
WHETHER THERE IS SUFFICIENT EVIDENCE TO GO TO THE JURY AND IN CHARGING
THE JURY, TURNER V. UNITED STATES, 396 U.S., AT 406 N. 6; UNITED STATES
V. GAINEY, SUPRA, AT 68 - 70, SUCH DISCRETION IS INHERENT IN THE USE OF
COMMON-LAW INFERENCES. 

/9/  OF COURSE, THE MERE FACT THAT THERE IS SOME EVIDENCE TENDING TO
EXPLAIN A DEFENDANT'S POSSESSION CONSISTENT WITH INNOCENCE DOES NOT BAR
INSTRUCTING THE JURY ON THE INFERENCE.  THE JURY MUST WEIGH THE
EXPLANATION TO DETERMINE LHETHER IT IS "SATISFACTORY."  SUPRA, AT 840
N. 3.  THE JURY IS NOT BOUND TO ACCEPT OR BELIEVE ANY PARTICULAR
EXPLANATION ANY MORE THAN IT IS BOUND TO ACCEPT THE CORRECTNESS OF THE
INFERENCE.  BUT THE BURDEN OF PROVING BEYOND A REASONABLE DOUBT THAT
THE DEFENDANT DID HAVE KNOWLEDGE THAT THE PROPERTY WAS STOLEN, AN
ESSENTIAL ELEMENT OF THE CRIME, REMAINS ON THE GOVERNMENT. 

/10/  "'COMMON SENSE' . . . TELLS US THAT THOSE WHO TRAFFIC IN
HEROIN WILL INEVITABLY BECOME AWARE THAT THE PRODUCT THEY DEAL IN IS
SMUGGLED, UNLESS THEY PRACTICE A STUDIED IGNORANCE TO WHICH THEY ARE
NOT ENTITLED." 

/11/  IT IS TRUE THAT THE PRACTICAL EFFECT OF INSTRUCTING THE JURY
ON THE INFERENCE ARISING FROM UNEXPLAINED POSSESSION OF RECENTLY STOLEN
PROPERTY IS TO SHIFT THE BURDEN OF GOING FORWARD WITH EVIDENCE TO THE
DEFENDANT.  IF THE GOVERNMENT PROVES POSSESSION AND NOTHING MORE, THIS
EVIDENCE REMAINS UNEXPLAINED UNLESS THE DEFENDANT INTRODUCES EVIDENCE,
SINCE ORDINARILY THE GOVERNMENT'S EVIDENCE WILL NOT PROVIDE AN
EXPLANATION OF HIS POSSESSION CONSISTENT WITH INNOCENCE.  IN TOT V.
UNITED STATES, 319 U.S. 463 (1943), THE COURT STATED THAT THE BURDEN OF
GOING FORWARD MAY NOT BE FREELY SHIFTED TO THE DEFENDANT.  SEE ALSO
LEARY V. UNITED STATES, 395 U.S. 6, 44 - 45 (1969).  TOT HELD, HOWEVER,
THAT WHERE THERE IS A "RATIONAL CONNECTION" BETWEEN THE FACTS PROVED
AND THE FACT PRESUMED OR INFERRED, IT IS PERMISSIBLE TO SHIFT THE
BURDEN OF GOING FORWARD TO THE DEFENDANT.  WHERE AN INFERENCE SATISFIES
THE REASONABLE-DOUBT STANDARD, AS IN THE PRESENT CASE, THERE WILL
CERTAINLY BE A RATIONAL CONNECTION BETWEEN THE FACT PERSUMED OR
INFERRED (IN THIS CASE, KNOWLEDGE) AND THE FACTS THE GOVERNMENT MUST
PROVE IN ORDER TO SHIFT THE BURDEN OF GOING FORWARD (POSSESSION OF
RECENTLY STOLEN PROPERTY). 

WE DO NOT DECIDE TODAY WHETHER A JUDGE-FORMULATED INFERENCE OF LESS
ANTIQUITY OR AUTHORITY MAY PROPERLY BE EMPHASIZED BY A JURY
INSTRUCTION. 

/12/  NOR CAN THE INSTRUCTION "BE FAIRLY UNDERSTOOD AS A COMMENT ON
THE PETITIONER'S FAILURE TO TESTIFY."  UNITED STATES V. GAINEY, 380
U.S., AT 70 - 71. 

/13/  "WHOEVER . . . UNLAWFULLY HAS IN HIS POSSESSION, ANY . . .
MAIL . . . WHICH HAS BEEN SO STOLEN . . ., KNOWING THE SAME TO HAVE
BEEN STOLEN, . . . (SHALL BE FINED OR IMPRISONED OR BOTH)." 

/14/  PRIOR TO 1939 THE STATUTE REQUIRED PROOF OF POSSESION OF
ARTICLES STOLEN FROM THE MAIL "KNOWING THE SAME TO HAVE BEEN SO
STOLEN."  18 U.S.C. 317 (1934 ED.).  SEE, E. G., BRANDENBURG V. UNITED
STATES, 78 F.2D 811 (CA3 1935).  IN 1939 CONGRESS ELIMINATED THE WORD
"SO" PRECEDING THE WORD "STOLEN."  H. R. REP. NO. 734, 76TH CONG., 1ST
SESS., 1 (1939), EXPLAINS THE CHANGE:  "THE REPORTED BILL AMENDS THE
EXISTING LAW SO THAT IT WILL SUSTAIN A CONVICTION FOR THE GOVERNMENT TO
PROVE THAT THE PROPERTY WAS IN FACT STOLEN FROM THE MAILS AND THAT THE
DEFENDANT KNEW THE PROPERTY HE RECIEVED HAD BEEN STOLEN.  THE COMMITTEE
FEEL THAT THIS SHOULD BE SUFFICIENT WITHOUT REQUIRING THE GOVERNMENT TO
PROVE ALSO THAT THE DEFENDANT KNEW THE PROPERTY RECEIVED HAD BEEN
STOLEN FROM THE MAILS."  SEE ALSO S. REP. NO. 864, 76TH CONG., 1ST SESS
(1939). 

/15/  UNITED STATES V. HINES, 256 F.2D 561 (CA2 1958); SMITH V.
UNITED STATES, 343 F.2D 539 (CA5), CERT. DENIED, 382 U.S. 861 (1965);
UNITED STATES V. GARDNER, 454 F.2D 534 (CA9), CERT. DENIED, 409 U.S.
867 (1972); UNITED STATES V. SCHULTZ, 462 F.2D 622 (CA9 1972). 

/16/  ALTHOUGH AFFIRMANCE OF PETITIONER'S CONVICTION ON TWO OF THE
SIX COUNTS CARRYING IDENTICAL CONCURRENT SENTENCES DOES NOT MOOT THE
ISSUES HE RAISES PERTAINING TO THE REMAINING COUNTS, BENTON V.
MARYLAND, 395 U.S. 784 (1969), WE DECLINE AS A DISCRETIONARY MATTER TO
REACH THESE ISSUES.  CF. UNITED STATES V. ROMANO, 382 U.S., AT 138. 

MR. JUSTICE DOUGLAS, DISSENTING. 

POSSESSION OF STOLEN PROPERTY IS TRADITIONALLY UNDER OUR FEDERAL
SYSTEM A LOCAL LAW QUESTION.  IT BECOMES A FEDERAL CONCERN IN THE
PRESENT CASE ONLY IF THE "MAIL" WAS IMPLICATED.  THE INDICTMENT,
INSOFAR AS THE UNLAWFUL POSSESSION COUNTS ARE CONCERNED, CHARGES THAT
THE ITEMS HAD BEEN "STOLEN FROM THE MAIL."  WHILE THERE WAS EVIDENCE
THAT THESE ITEMS HAD GONE THROUGH THE MAIL, PETITIONER DID NOT TAKE THE
STAND, NOR WAS THERE ANY EVIDENCE THAT PETITIONER KNEW THAT THE ITEMS
HAD BEEN "STOLEN FROM THE MAIL."  AS TO THE POSSESSION COUNTS IN THE
INDICTMENT THE DISTRICT COURT CHARGED THE JURY THAT "THREE ESSENTIAL
ELEMENTS" WERE REQUIRED TO PROVE THE POSSESSION OFFENSES: 

   "FIRST:  THE ACT OR ACTS OF UNLAWFULLY HAVING IN ONE'S

  POSSESSION THE CONTENTS OF A LETTER, NAMELY, THE UNITED STATES

  TREASURY CHECKS AS ALLEGED; 

     "SECOND:  THAT THE CONTENTS OF THE LETTER, NAMELY, THE UNITED

  STATES TREASURY CHECKS AS ALLEGED, WERE STOLEN FROM THE MAIL;

AND 

     "THIRD:  THAT THE DEFENDANT JAMES EDWARD BARNES KNEW THE

  CONTENTS HAD BEEN STOLEN."  THE DISTRICT COURT ALSO CHARGED THE

  JURY: 

     "IF YOU SHOULD FIND BEYOND A REASONABLE DOUBT FROM THE
EVIDENCE

  IN THE CASE THAT THE MAIL DESCRIBED IN THE INDICTMENT WAS STOLEN,

  AND THAT WHILE RECENTLY STOLEN THE CONTENTS OF SAID MAIL HERE,

THE FOUR UNITED STATES TREASURY CHECKS, WERE IN THE POSSESSION OF

  THE DEFENDANT YOU WOULD ORDINARILY BE JUSTIFIED IN DRAWING FROM

  THOSE FACTS THE INFERENCE THAT THE CONTENTS WERE POSSESSED BY THE

  ACCUSED WITH KNOWLEDGE THAT IT WAS STOLEN PROPERTY, UNLESS SUCH

  POSSESSION IS EXPLAINED BY FACTS AND CIRCUMSTANCES IN THIS CASE

  WHICH ARE IN SOME WAY CONSISTENT WITH THE DEFENDANT'S." 

AS NOTED BY THE COURT, THE ACT, WHICH ORIGINALLY REQUIRED PROOF OF
POSSESSION OF ARTICLES STOLEN FROM THE MAIL "KNOWING THE SAME TO HAVE
BEEN SO STOLEN," 18 U.S.C. ^ 317 (1934 ED.), WAS CHANGED BY ELIMINATING
THE WORD "SO" BEFORE "STOLEN."  H. R. REP. NO. 734, 76TH CONG., 1ST
SESS., 1.  AND THE ACT UNDER WHICH PETITIONER WAS CHARGED AND CONVICTED
DOES NOT REQUIRE AS AN INGREDIENT OF THE OFFENSE THAT PETITIONER KNEW
THE PROPERTY HAD BEEN STOLEN FROM THE MAILS. 

THAT, HOWEVER, IS THE BEGINNING, NOT THE END OF THE PROBLEM.  FOR
WITHOUT A NEXUS WITH THE "MAIL" THERE IS NO FEDERAL OFFENSE.  HOW CAN
WE RATIONALLY SAY THAT "POSSESSION" OF A STOLEN CHECK ALLOWS A JUDGE OR
JURY TO CONCLUDE THAT THE ACCUSED KNEW THE CHECK WAS STOLEN FROM THE
MAILS?  WE HELD IN TOT V. UNITED STATES, 319 U.S. 463, THAT WHERE A
FEDERAL ACT MADE IT UNLAWFUL FOR ANY CONVICTED PERSON TO POSSESS A
FIREARM THAT HAD BEEN SHIPPED IN INTERSTATE OR FOREIGN COMMERCE, IT WAS
UNCONSTITUTIONAL TO PRESUME THAT A FIREARM POSSESSED BY SUCH PERSON HAD
BEEN RECEIVED IN INTERSTATE OR FOREIGN COMMERCE.  /1/  THE DECISION WAS
UNANIMOUS.  THE VICE IN TOT WAS THAT THE BURDEN IS ON THE GOVERNMENT IN
A CRIMINAL CASE TO PROVE GUILT BEYOND A REASONABLE DOUBT AND THAT USE
OF THE PRESUMPTION SHIFTS THAT BURDEN.  WE SAID:  "(IT IS NOT
PERMISSIBLE THUS TO SHIFT THE BURDEN BY ARBITRARILY MAKING ONE FACT,
WHICH HAS NO RELEVANCE TO GUILT OF THE OFFENSE, THE OCCASION OF CASTING
ON THE DEFENDANT THE OBLIGATION OF EXCULPATION."  ID., AT 469.  THE USE
OF PRESUMPTIONS AND INFERENCES TO PROVE AN ELEMENT OF THE CRIME IS
INDEED TREACHEROUS, FOR IT ALLOWS MEN TO GO TO JAIL WITHOUT ANY
EVIDENCE ON ONE ESSENTIAL INGREDIENT OF THE OFFENSE.  IT THUS
IMPLICATES THE INTEGRITY OF THE JUDICIAL SYSTEM.  WE HELD IN IN RE
WINSHIP, 397 U.S. 358, 364, THAT THE DUE PROCESS CLAUSE REQUIRES "PROOF
BEYOND A REASONABLE DOUBT OF EVERY FACT NECESSARY TO CONSTITUTE THE
CRIME.  . ."  SOME EVIDENCE OF WRONG-DOING IS BASIC AND ESSENTIAL IN
THE JUDICIAL SYSTEM, UNLESS THE WAY OF PROSECUTORS BE MADE EASY BY
DISPENSING WITH THE REQUIREMENT OF PRESUMPTION OF INNOCENCE, WHICH IS
THE EFFECT OF WHAT THE COURT DOES TODAY.  IN PRACTICAL EFFECT THE USE
OF THESE PRESUMPTIONS OFTEN MEANS THAT THE GREAT BARRIERS TO THE
PROTECTION OF PROCEDURAL DUE PROCESS CONTAINED IN THE BILL OF RIGHTS
ARE SUBTLY DILUTED.  /2/ 

MAY CONGRESS CONSTITUTIONALLY ENACT A LAW THAT SAYS JURIES CAN
CONVICT A DEFENDANT WITHOUT ANY EVIDENCE AT ALL FROM WHICH AN INFERENCE
OF GUILT COULD BE DRAWN?  IT THOMPSON V. LOUISVILLE, 362 U.S. 199,
MEANS ANYTHING, THE ANSWER IS IN THE NEGATIVE.  THE CONGRESS IS AS
UNWARRANTED IN TELLING COURTS WHAT EVIDENCE IS ENOUGH TO CONVICT AN
ACCUSED AS WE WOULD BE TO TELL CONGRESS WHAT CRIMINAL LAWS SHOULD BE
ENACTED.  THAT SEEMS INESCAPABLY PLAIN BY THE REGIME OF SEPARATION OF
POWERS UNDER WHICH WE LIVE. 

IN LEARY V. UNITED STATES, 395 U.S. 6, WE HELD THAT IT WAS
CONSTITUTIONALLY IMPERMISSIBLE TO PRESUME THAT ONE WHO POSSESSED
MARIHUANA WOULD BE PRESUMED TO KNOW OF ITS UNLAWFUL IMPORTATION.  WE
SAID IT WOULD BE SHEER "SPECULATION" TO CONCLUDE THAT EVEN A MAJORITY
OF THE USERS OF THE PLANT KNEW THE SOURCE OF IT.  ID., AT 53.  THE
OVERALL TEST, WE SAID, WAS WHETHER IT CAN BE SAID "WITH SUBSTANTIAL
ASSURANCE THAT THE PRESUMED FACT IS MORE LIKELY THAN NOT TO FLOW FROM
THE PROVED FACT ON WHICH IT IS MADE TO DEPEND."  ID., AT 36. 

IN THAT CASE THERE WERE SOME STATISTICS AS TO QUANTITY OF MARIHUANA
GROWN HERE AND THE AMOUNT GROWN ABROAD THAT ENTERS THE COUNTRY.  THERE
WAS EVIDENCE OF THE CHARACTERISTICS OF LOCAL AND FOREIGN MARIHUANA, AND
THE LIKE. 

STOLEN CHECKS MAY BE THE PRODUCT OF LOCAL BURGLARIES OF PRIVATE
HOMES OR OFFICES. 

STOLEN CHECKS MAY COME FROM PURSES SNATCHED OR PURLOINED. 

STOLEN CHECKS MAY INVOLVE ANY ONE OF NUMEROUS ARTIFICES OR TRICKS. 

IN OTHER WORDS, THERE ARE VARIOUS SOURCES OF STOLEN CHECKS WHICH IN
NO WAY IMPLICATE FEDERAL JURISDICTION. 

CHECKS STOLEN FROM NATIONAL BANKS, CHECKS STOLEN FROM FEDERAL
AGENCIES, CHECKS LIFTED FROM THE MAILS ARE OTHER SOURCES. 

BUT, UNLIKE LEARY, WE HAVE NO EVIDENCE WHATSOEVER SHOWING WHAT
AMOUNT OF STOLEN PROPERTY, LET ALONE STOLEN CHECKS, IMPLICATE THE
MAILS.  WITHOUT SOME EVIDENCE OR STATISTICS OF THAT NATURE WE HAVE NO
WAY OF ASSESSING THE LIKELIHOOD THAT THIS PETITIONER KNEW THAT THESE
CHECKS WERE STOLEN FROM THE MAILS.  WE CAN TAKE JUDICIAL NOTICE THAT
CHECKS ARE STOLEN FROM THE MAILS.  BUT IT WOULD TAKE A LARGE DEGREE OF
ASSUMED OMNISCIENCE TO SAY WITH "SUBSTANTIAL ASSURANCE" THAT THIS
PETITIONER MORE LIKELY THAN NOT KNEW FROM THE REALITIES OF THE
UNDERWORLD THAT THIS STOLEN PROPERTY CAME FROM THE MAILS.  BUT WITHOUT
EVIDENCE OF THAT KNOWLEDGE THERE WOULD BE NO FEDERAL OFFENSE OF THE
KIND CHARGED.     THE STEP WE TAKE TODAY WILL BE APPLAUDED BY
PROSECUTORS, AS IT MAKES THEIR WAY EASY.  BUT THE BILL OF RIGHTS WAS
DESIGNED TO MAKE THE JOB OF THE PROSECUTOR DIFFICULT.  THERE IS A
PRESUMPTION OF INNOCENCE.  PROOF BEYOND A REASONABLE DOUBT IS
NECESSARY.  THE JURY, NOT THE COURT, IS THE FACTFINDER.  THESE BASIC
PRINCIPLES MAKE THE USE OF THESE EASY PRESUMPTIONS DANGEROUS.  /3/
WHAT WE DO TODAY IS, I THINK, EXTREMELY DISRESPECTFUL OF THE
CONSTITUTIONAL REGIME THAT CONTROLS THE DISPENSATION OF CRIMINAL
JUSTICE. 

/1/  TOT V. UNITED STATES WAS DECIDED IN 1943, FOUR YEARS AFTER THE
PASSAGE BY CONGRESS OF THE 1939 AMENDMENT TO THE PRESENT ACT
ELIMINATING THE NEED TO PROVE KNOWLEDGE THAT THE PROPERTY HAD BEEN
STOLEN FROM THE MAILS.  HAD TOT BEEN DECIDED BEFORE 1939 IT IS
INCONCEIVABLE THAT CONGRESS WOULD HAVE MADE THE 1939 CHANGE IN THE
PRESENT ACT. 

/2/  MR. JUSTICE BLACK AND I PREVIOUSLY HAVE VOICED THIS CONCERN. 
TURNER V. UNITED STATES, 396 U.S. 398, 425 (DISSENTING OPNION); UNITED
STATES V. GAINEY, 380 U.S. 63, 72, 74 (DISSENTING OPINIONS). 

/3/  WHAT WE SAID IN CHRISTOFFEL V. UNITED STATES, 338 U.S. 84, 89,
THAT "ALL THE ELEMENTS OF THE CRIME CHARGED SHALL BE PROVED BEYOND A
REASONABLE DOUBT" HAS BEEN THE GUIDING RULE AT LEAST ON THE ISSUE OF
GUILT.  AND IT IS COGENTLY ARGUED THAT PRESUMPTIONS OF THE EXISTENCE OF
ELEMENTS OF A CRIME HAVE NO PLACE IN OUR CONSTITUTIONAL FRAMEWORK.  SEE
22 STAN.  L. REV. 341 (1970).  THAT SEEMS INDUBITABLY TRUE TO ME, AT
LEAST IN THE PRESENT CASE WHERE KNOWLEDGE THAT THE CHECKS WERE STOLEN
FROM THE MAILS HAS ONLY SUSPICION TO SUPPORT IT. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

PETITIONER WAS CHARGED IN TWO COUNTS OF A SIX-COUNT INDICTMENT WITH
POSSESSION OF UNITED STATES TREASURY CHECKS STOLEN FROM THE MAILS,
KNOWING THEM TO BE STOLEN.  THE ESSENTIAL ELEMENTS OF SUCH AN OFFENSE
ARE (1) THAT THE DEFENDANT WAS IN POSSESSION OF THE CHECKS, (2) THAT
THE CHECKS WERE STOLEN FROM THE MAILS, AND (3) THAT THE DEFENDANT KNEW
THAT THE CHECKS WERE STOLEN.  THE GOVERNMENT PROVED THAT PETITIONER HAD
BEEN IN POSSESSION OF THE CHECKS AND THAT THE CHECKS HAD BEEN STOLEN
FROM THE MAILS; AND, IN ADDITION, THE GOVERNMENT INTRODUCED SOME
EVIDENCE INTENDED TO SHOW THAT PETITIONER KNEW OR SHOULD HAVE KNOWN
THAT THE CHECKS WERE STOLEN.  BUT RATHER THAN LEAVING THE JURY TO
DETERMINE THE ELEMENT OF "KNOWLEDGE" ON THE BASIS OF THAT EVIDENCE, THE
TRIAL COURT INSTRUCTED IT THAT IT WAS FREE TO INFER THE ESSENTIAL
ELEMENT OF "KNOWLEDGE" FROM PETITIONER'S UNEXPLAINED POSSESSION OF THE
CHECKS.  IN MY VIEW, THAT INSTRUCTION VIOLATED THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT BECAUSE IT PERMITTED THE JURY TO CONVICT EVEN
THOUGH THE ACTUAL EVIDENCE BEARING ON "KNOWLEDGE" MAY HAVE BEEN
INSUFFICIENT TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT.  I THEREFORE
DISSENT. 

WE HELD IN IN RE WINSHIP, 397 U.S. 358, 364 (1970), THAT THE DUE
PROCESS CLAUSE REQUIRES "PROOF BEYOND A REASONABLE DOUBT OF EVERY FACT
NECESSARY TO CONSTITUTE THE CRIME . . ."  THUS, IN TURNER V. UNITED
STATES, 396 U.S. 398, 417 (1970), WE APPROVED THE INFERENCE OF
"KNOWLEDGE" FROM THE FACT OF POSSESSING SMUGGLED HEROIN BECAUSE
"'(COMMON SENSE' . . . TELLS US THAT THOSE WHO TRAFFIC IN HEROIN WILL
INEVITABLY BECOME AWARE THAT THE PRODUCT THEY DEAL IN IS SMUGGLED . .
."  THE BASIS OF THAT "COMMON SENSE" JUDGMENT WAS, OF COURSE, THE
INDISPUTABLE FACT THAT ALL OR VIRTUALLY ALL HEROIN IN THIS COUNTRY IS
NECESSARILY SMUGGLED.  HERE, HOWEVER, IT CANNOT BE SAID THAT ALL OR
VIRTUALLY ALL ENDORSED UNITED STATES TREASURY CHECKS HAVE BEEN STOLEN. 
INDEED, IT IS NEITHER UNLAWFUL NOR UNUSUAL FOR PEOPLE TO USE SUCH
CHECKS AS DIRECT PAYMENT FOR GOODS AND SERVICES.  THUS, UNLIKE TURNER,
"COMMON SENSE" SIMPLY WILL NOT PERMIT THE INFERENCE THAT THE POSSESSOR
OF STOLEN TREASURY CHECKS "INEVITABLY"  KNEW THAT THE CHECKS WERE
STOLEN.  CF. LEARY V. UNITED STATES, 395 U.S. 6 (1969). 

IN SHORT, THE PRACTICAL EFFECT OF THE CHALLENGED INSTRUCTION WAS TO
PERMIT THE JURY TO CONVICT PETITIONER EVEN IF IT FOUND INSUFFICIENT OR
DISBELIEVED ALL OF THE GOVERNMENT'S EVIDENCE BEARING DIRECTLY ON THE
ISSUE OF "KNOWLEDGE."  BY AUTHORIZING THE JURY TO RELY EXCLUSIVELY ON
THE INFERENCE IN DETERMINING THE ELEMENT OF "KNOWLEDGE," THE
INSTRUCTION RELIEVED THE GOVERNMENT OF THE BURDEN OF PROVING THAT
ELEMENT BEYOND A REASONABLE DOUBT.  THE INSTRUCTION THEREBY VIOLATED
THE PRINCIPLE OF WINSHIP THAT EVERY ESSENTIAL ELEMENT OF THE CRIME MUST
BE PROVED BEYOND A REASONABLE DOUBT. 

MALCOLM H. MACKEY, BY APPOINTMENT OF THE COURT, 411 U.S. 946, ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL PETERSEN, MARK L. EVANS, AND SIDNEY M.
GLAZER. 
..END :















STRUNK, AKA WAGNER V. UNITED STATES, 412 U.S. 434 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 72 - 5521.  ARGUED APRIL 24, 1973--DECIDED JUNE 11,

           1973; 467 F.2D 969, REVERSED AND REMANDED. 


    PETITIONER WAS CONVICTED OF A FEDERAL OFFENSE AND WAS SENTENCED

  TO A TERM OF FIVE YEARS, TO RUN CONCURRENTLY WITH A SENTENCE OF

  ONE TO THREE YEARS THAT HE WAS SERVING PURSUANT TO A STATE-COURT

  CONVICTION.  BEFORE TRIAL, THE DISTRICT COURT DENIED HIS MOTION

  TO DISMISS THE FEDERAL CHARGE ON THE GROUND THAT HE HAD BEEN

  DENIED A SPEEDY TRIAL.  THE COURT OF APPEALS REVERSED, HOLDING

  THAT HE HAD BEEN DENIED A SPEEDY TRIAL, BUT THAT THE "EXTREME"

  REMEDY OF DISMISSAL OF THE CHARGES WAS NOT WARRANTED.  THE CASE

  WAS REMANDED TO THE DISTRICT COURT TO REDUCE THE SENTENCE BY 259

  DAYS, TO COMPENSATE FOR THE UNNECESSARY DELAY THAT HAD OCCURRED

  BETWEEN THE RETURN OF THE INDICTMENT AND PETITIONER'S

  ARRAIGNMENT.  THE GOVERNMENT DID NOT FILE A CROSS-PETITION FOR

  CERTIORARI CHALLENGING THE FINDING OF DENIAL OF A SPEEDY TRIAL. 

  HELD:  IN THE CASE, THE ONLY QUESTION FOR REVIEW IS THE PROPRIETY

  OF THE REMEDY FASHIONED BY THE COURT OF APPEALS.  IN LIGHT OF THE

  POLICIES UNDERLYING THE RIGHT TO A SPEEDY TRIAL, DISMISSAL MUST

REMAIN, AS NOTED IN BARKER V. WINGO, 407 U.S. 514, 522, "THE ONLY

  POSSIBLE REMEDY" FOR DEPRIVATION OF THIS CONSTITUTIONAL RIGHT. 

  PP. 435 - 440. 

BURGER, C. J., WROTE THE OPINION FOR A UNANIMOUS COURT. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE BURGER, ANNOUNCED BY MR.
JUSTICE DOUGLAS. 

[[HC434'(ORIGINAL DOCUMENT PAGE 434)' 

PETITIONER WAS FOUND GUILTY IN UNITED STATES DISTRICT COURT OF
TRANSPORTING A STOLEN AUTOMOBILE FROM WISCONSIN TO ILLINOIS IN
VIOLATION OF 18 U.S.C. ^ 2312 AND WAS SENTENCED TO A TERM OF FIVE
YEARS. 

[[HC435'(ORIGINAL DOCUMENT PAGE 435)' THE FIVE-YEAR SENTENCE WAS TO
RUN CONCURRENTLY WITH A SENTENCE OF ONE TO THREE YEARS THAT PETITIONER
WAS THEN SERVING IN THE NEBRASKA STATE PENITENTIARY PURSUANT TO A
CONVICTION IN THE COURTS OF THAT STATE. 

PRIOR TO TRIAL, THE DISTRICT COURT DENIED A MOTION TO DISMISS THE
FEDERAL CHARGE, IN WHICH PETITIONER ARGUED THAT HE HAD BEEN DENIED HIS
RIGHT TO A SPEEDY TRIAL.  AT TRIAL, PETITIONER CALLED NO WITNESSES AND
DID NOT TAKE THE STAND; THE JURY RETURNED A VERDICT OF GUILTY.  THE
COURT OF APPEALS REVERSED THE DISTRICT COURT, HOLDING THAT PETITIONER
HAD IN FACT BEEN DENIED A SPEEDY TRIAL.  HOWEVER, THE COURT WENT ON TO
HOLD THAT THE "EXTREME" REMEDY OF DISMISSAL OF THE CHARGES WAS NOT
WARRANTED; THE CASE WAS REMANDED TO THE DISTRICT COURT TO REDUCE
PETITIONER'S SENTENCE TO THE EXTENT OF 259 DAYS IN ORDER TO COMPENSATE
FOR THE UNNECESSARY DELAY WHICH HAD OCCURRED BETWEEN RETURN OF THE
INDICTMENT AND PETITIONER'S ARRAIGNMENT. 

      I 

CERTIORARI WAS GRANTED ON PETITIONER'S CLAIM THAT, ONCE A JUDICIAL
DETERMINATION HAS BEEN MADE THAT AN ACCUSED HAS BEEN DENIED A SPEEDY
TRIAL, THE ONLY REMEDY AVAILABLE TO THE COURT IS "TO REVERSE THE
CONVICTION, VACATE THE SENTENCE, AND DISMISS THE INDICTMENT."  NO CROSS
PETITION WAS FILED BY THE GOVERNMENT TO REVIEW THE DETERMINATION OF THE
COURT OF APPEALS THAT THE DEFENDANT HAD BEEN DENIED A SPEEDY TRIAL. 
THE GOVERNMENT ACKNOWLEDGES THAT, IN ITS PRESENT POSTURE, THE CASE
PRESENTS A NOVEL AND UNRESOLVED ISSUE, NOT CONTROLLED BY ANY PRIOR
DECISIONS OF THIS COURT. 

THE COURT OF APPEALS STATED THAT THE 10-MONTH DELAY WHICH OCCURRED
WAS "UNUSUAL AND CALLED) FOR EXPLANATION AS WELL AS JUSTIFICATION,"
467 F.2D 969, 972.  THE GOVERNMENT RESPONDED THAT PETITIONER HAD, AFTER
RECEIVING THE PROPER WARNINGS, FREELY ADMITTED HIS GUILT TO AN FBI
AGENT WHILE INCARCERATED IN THE NEBRASKA PENITENTIARY, AND HAD STATED
THAT HE INTENDED TO DEMAND A SPEEDY TRIAL UNDER FED. RULE CRIM. PROC.
20. 

[[HC436'(ORIGINAL DOCUMENT PAGE 436)'  THE GOVERNMENT CLAIMED THAT
IT HAD POSTPONED PROSECUTION BECAUSE OF PETITIONER'S REFERENCE TO RULE
20, AND CONSEQUENTLY, THAT A LARGE PORTION OF THE DELAY WHICH ENSUED
WAS ATTRIBUTABLE TO PETITIONER.  THE COURT OF APPEALS REGARDED THIS
EXPLANATION AS TENUOUS; IT ALSO REJECTED THE LACK OF STAFF PERSONNEL IN
THE UNITED STATES ATTORNEY'S OFFICE AS A JUSTIFICATION FOR THE DELAY. 
THE ENTIRE COURSE OF EVENTS FROM THE TIME OF ARREST THROUGH THE COURT
OF APPEALS PLAINLY PLACED THE GOVERNMENT ON NOTICE THAT THE SPEEDY
TRIAL ISSUE WAS BEING PRESERVED BY THE ACCUSED AND WOULD BE PRESSED, AS
INDEED IT HAS BEEN. 

ON THIS RECORD, IT SEEMS CLEAR THAT PETITIONER WAS RESPONSIBLE FOR A
LARGE PART OF THE 10-MONTH DELAY WHICH OCCURRED AND THAT PETITIONER
NEITHER SHOWED NOR CLAIMED THAT THE PREPARATION OF HIS DEFENSE WAS
PREJUDICED BY REASON OF THE DELAY.  IT MAY ALSO WELL BE CORRECT THAT
THE UNITED STATES ATTORNEY WAS UNDERSTAFFED DUE TO INSUFFICIENT
APPROPRIATIONS AND, CONSEQUENTLY, WAS UNABLE TO PROVIDE AN ORGANIZATION
CAPABLE OF DEALING WITH THE RISING CASELOAD IN HIS OFFICE, ESPECIALLY
WITH RESPECT TO CRIMINAL CASES.  UNINTENTIONAL DELAYS CAUSED BY
OVERCROWDED COURT DOCKETS OR UNDERSTAFFED PROSECUTORS ARE AMONG THE
FACTORS TO BE WEIGHED LESS HEAVILY THAN INTENTIONAL DELAY, CALCULATED
TO HAMPER THE DEFENSE, IN DETERMINING WHETHER THE SIXTH AMENDMENT HAS
BEEN VIOLATED BUT, AS WE NOTED IN BARKER V. WINGO, 407 U.S. 514, 531
(1972), THEY MUST 

"NEVERTHELESS . . . BE CONSIDERED SINCE THE ULTIMATE RESPONSIBILITY
FOR SUCH CIRCUMSTANCES MUST REST WITH THE GOVERNMENT RATHER THAN WITH
THE DEFENDANT."  THIS SERVED TO REAFFIRM WHAT THE COURT HELD EARLIER IN
DICKEY V. FLORIDA, 398 U.S. 30, 37 - 38 (1970) 

[[HC437'(ORIGINAL DOCUMENT PAGE 437)' 

"ALTHOUGH A GREAT MANY ACCUSED PERSONS SEEK TO PUT OFF THE
CONFRONTATION AS LONG AS POSSIBLE, THE RIGHT TO A PROMPT INQUIRY INTO
CRIMINAL CHARGES IS FUNDAMENTAL AND THE DUTY OF THE CHARGING AUTHORITY
IS TO PROVIDE A PROMPT TRIAL."  /1/  (FOOTNOTE OMITTED.) 

HOWEVER, IN THE ABSENCE OF A CROSS-PETITION FOR CERTIORARI,
QUESTIONING THE HOLDING THAT PETITIONER WAS DENIED A SPEEDY TRIAL, THE
ONLY QUESTION PROPERLY BEFORE US FOR REVIEW IS THE PROPRIETY OF THE
REMEDY FASHIONED BY THE COURT OF APPEALS.  WHETHER IN SOME
CIRCUMSTANCES, AND AS TO SOME QUESTIONS, THE COURT MIGHT DEAL WITH AN
ISSUE INVOLVING CONSTITUTIONAL CLAIMS, ABSENT ITS BEING RAISED BY CROSS
PETITION, WE NEED NOT RESOLVE.  SUFFICE IT THAT IN THE CIRCUMSTANCES
PRESENTED HERE IN WHICH THE SPEEDY TRIAL ISSUE HAS BEEN PRESSED BY THE
ACCUSED FROM THE TIME OF ARREST FORWARD AND RESOLVED IN HIS FAVOR, WE
ARE NOT DISPOSED TO EXAMINE THE ISSUE SINCE WE MUST ASSUME THE
GOVERNMENT DELIBERATELY ELECTED TO ALLOW THE CASE TO BE RESOLVED ON THE
ISSUE RAISED BY THE PETITION FOR CERTIORARI. 

        II 

TURNING TO THE REMAINING QUESTION OF THE POWER OF THE COURT OF
APPEALS TO FASHION WHAT IT APPEARED TO CONSIDER AS A "PRACTICAL"
REMEDY, WE NOTE THAT THE COURT CLEARLY PERCEIVED THAT THE ACCUSED HAD
AN INTEREST IN BEING TRIED PROMPTLY, EVEN THOUGH HE WAS CONFINED IN A
PENITENTIARY FOR AN UNRELATED CHARGE.  UNDER THESE CIRCUMSTANCES, 

"THE POSSIBILITY THAT THE DEFENDANT ALREADY IN PRISON MIGHT RECEIVE
A SENTENCE AT LEAST PARTIALLY CONCURRENT WITH THE ONE HE IS SERVING MAY
BE FOREVER LOST IF TRIAL OF THE PENDING CHARGE IS POSTPONED." 

[[HC438'(ORIGINAL DOCUMENT PAGE 438)'

  SMITH V. HOOEY, 393 U.S. 374, 378 (1969) (FOOTNOTE OMITTED).  THE
COURT OF APPEALS WENT ON TO STATE: 

     "THE REMEDY FOR A VIOLATION OF THIS CONSTITUTIONAL RIGHT HAS

TRADITIONALLY BEEN THE DISMISSAL OF THE INDICTMENT OR THE

 VACATION OF THE SENTENCE.  PERHAPS THE SEVERITY OF THAT REMEDY

  HAS CAUSED COURTS TO BE EXTREMELY HESITANT IN FINDING A FAILURE

  TO AFFORD A SPEEDY TRIAL.  BE THAT AS IT MAY, WE KNOW OF NO

  REASON WHEY LESS DRASTIC RELIEF MAY NOT BE GRANTED IN APPROPRIATE

  CASES.  HERE NO QUESTION IS RAISED ABOUT THE SUFFICIENCY OF

  EVIDENCE SHOWING DEFENDANT'S GUILT, AND AS WE HAVE SAID, HE MAKES

  NO CLAIM OF HAVING BEEN PREJUDICED IN PRESENTING HIS DEFENSE.  IN

  THESE CIRCUMSTANCES, THE VACATION OF THE SENTENCE AND A DISMISSAL

 OF THE INDICTMENT WOULD SEEM INAPPROPRIATE.  RATHER, WE THINK THE

  PROPER REMEDY IS TO REMAND THE CASE TO THE DISTRICT COURT WITH

  DIRECTION TO ENTER AN ORDER INSTRUCTING THE ATTORNEY GENERAL TO

  CREDIT THE DEFENDANT WITH THE PERIOD OF TIME ELAPSING BETWEEN THE

  RETURN OF THE INDICTMENT AND THE DATE OF THE ARRAIGNMENT.  FED.

  R. CRIM. P. 35 PROVIDES THAT THE DISTRICT COURT MAY CORRECT AN

  ILLEGAL SENTENCE AT ANY TIME.  WE COOSE TO TREAT THE SENTENCE

  HERE IMPOSED AS ILLEGAL TO THE EXTENT OF THE DELAY WE HAVE

CHARACTERIZED AS UNREASONABLE."  467 F.2D, AT 973. 

IT IS CORRECT, AS THE COURT OF APPEALS NOTED, THAT BARKER PRESCRIBES
"FLEXIBLE" STANDARDS BASED ON PRACTICAL CONSIDERATIONS.  HOWEVER, THAT
ASPECT OF THE HOLDING IN BARKER WAS DIRECTED AT THE PROCESS OF
DETERMINING WHETHER A DENIAL OF SPEEDY TRIAL HAD OCCURRED; IT DID NOT
DEAL WITH THE REMEDY FOR DENIAL OF THIS RIGHT.  BY DEFINITION, SUCH
DENIAL IS UNLIKE SOME OF THE OTHER GUARANTEES OF THE SIXTH AMENDMENT. 

[[HC439'(ORIGINAL DOCUMENT PAGE 439)'  FOR EXAMPLE, FAILURE TO
AFFORD A PUBLIC TRIAL, AN IMPARTIAL JURY, NOTICE OF CHARGES, OR
COMPULSORY SERVICE CAN ORDINARILY BE CURED BY PROVIDING THOSE
GUARANTEED RIGHTS IN A NEW TRIAL.  THE SPEEDY TRIAL GUARANTEE
RECOGNIZES THAT A PROLONGED DELAY MAY SUBJECT THE ACCUSED TO AN
EMOTIONAL STRESS THAT CAN BE PRESUMED TO RESULT IN THE ORDINARY PERSON
FROM UNCERTAINTIES IN THE PROSPECT OF FACING PUBLIC TRIAL OR OF
RECEIVING A SENTENCE LONGER THAN, OR CONSECUTIVE TO, THE ONE HE IS
PRESENTLY SERVING -- UNCERTAINTIES THAT A PROMPT TRIAL REMOVES.  SMITH
V. HOOEY, 393 U.S., AT 379; UNITED STATES V. EWELL, 383 U.S. 116, 120
(1966).  WE RECOGNIZE, AS THE COURT DID IN SMITH V. HOOEY, THAT THE
STRESS FROM A DELAYED TRIAL MAY BE LESS ON A PRISONER ALREADY CONFINED,
WHOSE FAMILY TIES AND EMPLOYMENT HAVE BEEN INTERRUPTED, /2/  BUT OTHER
FACTORS SUCH AS THE PROSPECT OF REHABILITATION MAY ALSO BE AFFECTED
ADVERSELY.  THE REMEDY CHOSEN BY THE COURT OF APPEALS DOES NOT DEAL
WITH THESE DIFFICULTIES. 

THE GOVERNMENT'S RELIANCE ON BARKER TO SUPPORT THE REMEDY FASHIONED
BY THE COURT OF APPEALS IS FURTHER UNDERMINED WHEN WE EXAMINE THE
COURT'S OPINION IN THAT CASE AS A WHOLE.  IT IS TRUE THAT BARKER
DESCRIBED DISMISSAL OF AN INDICTMENT FOR DENIAL OF A SPEEDY TRIAL AS AN
"UNSATISFACTORILY SEVERE REMEDY."  INDEED, IN PRACTICE, "IT MEANS THAT
A DEFENDANT WHO MAY BE GUILTY OF A SERIOUS CRIME WILL GO FREE, WITHOUT
HAVING BEEN TRIED."  407 U.S., AT 522.  BUT SUCH SEVERE REMEDIES ARE
NOT UNIQUE IN THE APPLICATION OF CONSTITUTIONAL STANDARDS.  IN LIGHT OF
THE POLICIES WHICH UNDERLIE THE RIGHT TO A SPEEDY TRIAL, DISMISSAL MUST
REMAIN, AS BARKER NOTED, "THE ONLY POSSIBLE REMEDY."  IBID. 

[[HC440'(ORIGINAL DOCUMENT PAGE 440)' 

GIVEN THE UNCHALLENGED DETERMINATION THAT PETITIONER WAS DENIED A
SPEEDY TRIAL, /3/  THE DISTRICT COURT JUDGMENT OF CONVICTION MUST BE
SET ASIDE; THE JUDGMENT IS THEREFORE REVERSED AND THE CASE REMANDED TO
THE COURT OF APPEALS TO DIRECT THE DISTRICT COURT TO SET ASIDE ITS
JUDGMENT, VACATE THE SENTENCE, AND DISMISS THE INDICTMENT. 

       REVERSED AND REMANDED. 

/1/  AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, SPEEDY TRIAL 27 - 28 (APPROVED DRAFT 1968) (HEREAFTER ABA,
SPEEDY TRIAL). 

/2/  IT CAN ALSO BE SAID THAT AN ACCUSED RELEASED PENDING TRIAL OFTEN
HAS LITTLE OR NO INTEREST IN BEING TRIED QUICKLY; BUT THIS, STANDING
ALONE, DOES NOT ALTER THE PROSECUTOR'S OBLIGATION TO SEE TO IT THAT THE
CASE IS BROUGHT ON FOR TRIAL.  THE DESIRES OR CONVENIENCE OF
INDIVIDUALS CANNOT BE CONTROLLING.  THE PUBLIC INTEREST IN A BROAD
SENSE, AS WELL AS THE CONSTITUTIONAL GUARANTEE, COMMAND PROMPT
DISPOSITION OF CRIMINAL CHARGES. 

/3/  ABA, SPEEDY TRIAL 40 - 41. 

JOHN R. WIDEIKIS ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER
PRO HAC VICE. 

WILLIAM BRADFORD REYNOLDS ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL PETERSEN, AND JEROME M. FEIT. 
..END :



VLANDIS V. KLINE ET AL., 412 U.S. 441 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT 

     NO. 72 - 493.  ARGUED MARCH 20, 1973 -- DECIDED JUNE 11, 1973;
346 F. SUPP. 526 AFFIRMED. 


    CONNECTICUT REQUIRES NONRESIDENTS ENROLLED IN THE STATE

  UNIVERSITY SYSTEM TO PAY TUITION AND OTHER FEES AT HIGHER RATES

  THAN STATE RESIDENTS AND PROVIDES AN IRREVERSIBLE AND

  IRREBUTTABLE STATUTORY PRESUMPTION THAT BECAUSE THE LEGAL ADDRESS

  OF A STUDENT, IF MARRIED, WAS OUTSIDE THE STATE AT THE TIME OF

  APPLICATION FOR ADMISSION OR, IF SINGLE, WAS OUTSIDE THE STATE AT

  SOME POINT DURING THE PRECEDING YEAR, HE REMAINS A NONRESIDENT AS

  LONG AS HE IS A STUDENT IN CONNECTICUT.  APPELLEES CHALLENGE THAT

  PRESUMPTION, CLAIMING THAT THEY HAVE A CONSTITUTIONAL RIGHT TO

  CONTROVERT IT BY PRESENTING EVIDENCE OF BONA FIDE RESIDENCE IN

  THE STATE.  THE DISTRICT COURT UPHELD THEIR CLAIM.  HELD:  THE

  DUE PROCESS CLAUSE DOES NOT PERMIT CONNECTICUT TO DENY AN

  INDIVIDUAL THE OPPORTUNITY TO PRESENT EVIDENCE THAT HE IS A BONA

  FIDE RESIDENT ENTITLED TO IN-STATE RATES, ON THE BASIS OF A

  PERMANENT AND IRREBUTTABLE PRESUMPTION OF NONRESIDENCE, WHEN THAT

  PRESUMPTION IS NOT NECESSARILY OR UNIVERSALLY TRUE IN FACT, AND

  WHEN THE STATE HAS REASONABLE ALTERNATIVE MEANS OF MAKING THE

  CRUCIAL DETERMINATION.  PP. 446 - 454. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
MARSHALL, BLACKMUN, AND POWELL, JJ., JOINED.  MARSHALL, J., FILED A
CONCURRING OPINION, IN WHICH BRENNAN, J., JOINED, POST, P. 454.  WHITE,
J., FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 456.  BURGER,
C. J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, J., JOINED,
POST, P. 459.  REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH
BURGER, C. J., AND DOUGLAS, J., JOINED, POST, P. 463. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT.  /1/ 

[[HC442'(ORIGINAL DOCUMENT PAGE 442)' 

LIKE MANY OTHER STATES, CONNECTICUT REQUIRES NONRESIDENTS OF THE
STATE WHO ARE ENROLLED IN THE STATE UNIVERSITY SYSTEM TO PAY TUITION
AND OTHER FEES AT HIGHER RATES THAN RESIDENTS OF THE STATE WHO ARE SO
ENROLLED.  CONN. GEN. STAT. REV. ^ 10 - 329(B) (SUPP. 1969), AS AMENDED
BY PUBLIC ACT NO. 5, ^ 122 (JUNE SESS. 1971).  /2/  THE CONSTITUTIONAL
VALIDITY OF THAT REQUIREMENT IS NOT AT ISSUE IN THE CASE BEFORE US.
WHAT IS AT ISSUE HERE IS CONNECTICUT'S STATUTORY DEFINITION OF
RESIDENTS AND NONRESIDENTS FOR PURPOSES OF THE ABOVE PROVISION. 

PROVIDES THAT AN UNMARRIED STUDENT SHALL BE CLASSIFIED AS A
NONRESIDENT, OR "OUT OF STATE," STUDENT IF HIS "LEGAL ADDRESS FOR ANY
PART OF THE ONE-YEAR PERIOD IMMEDIATELY PRIOR TO HIS APPLICATION FOR
ADMISSION AT A CONSTITUENT UNIT OF THE STATE SYSTEM OF HIGHER EDUCATION
WAS OUTSIDE OF CONNECTICUT."  WITH RESPECT TO MARRIED STUDENTS, ^ 126
(A) (3) OF THE ACT PROVIDES THAT SUCH A STUDENT, IF LIVING WITH HIS
SPOUSE, SHALL BE CLASSIFIED AS "OUT OF STATE" IF HIS "LEGAL ADDRESS AT
THE TIME OF HIS APPLICATION FOR ADMISSION TO SUCH A UNIT WAS OUTSIDE OF
CONNECTICUT." 

[[HC443'(ORIGINAL DOCUMENT PAGE 443)'  THESE CLASSIFICATIONS ARE
PERMANENT AND IRREBUTTABLE FOR THE WHOLE TIME THAT THE STUDENT REMAINS
AT THE UNIVERSITY, SINCE ^ 126(A) (5) OF THE ACT COMMANDS THAT:  "THE
STATUS OF A STUDENT, AS ESTABLISHED AT THE TIME OF HIS APPLICATION FOR
ADMISSION AT A CONSTITUENT UNIT OF THE STATE SYSTEM OF HIGHER EDUCATION
UNDER THE PROVISIONS OF THIS SECTION, SHALL BE HIS STATUS FOR THE
ENTIRE PERIOD OF HIS ATTENDANCE AT SUCH CONSTITUENT UNIT."  THE PRESENT
CASE CONCERNS THE CONSTITUTIONAL VALIDITY OF THIS CONCLUSIVE AND
UNCHANGEABLE PRESUMPTION OF NONRESIDENT STATUS FROM THE FACT THAT, AT
THE TIME OF APPLICATION FOR ADMISSION, THE STUDENT, IF MARRIED, WAS
THEN LIVING OUTSIDE OF CONNECTICUT, OR, IF SINGLE, HAD LIVED OUTSIDE
THE STATE AT SOME POINT DURING THE PRECEDING YEAR. 

ONE APPELLEE, MARGARET MARSH KLINE, IS AN UNDERGRADUATE STUDENT AT
THE UNIVERSITY OF CONNECTICUT.  IN MAY 1971, WHILE ATTENDING COLLEGE IN
CALIFORNIA, SHE BECAME ENGAGED TO PETER KLINE, A LIFELONG CONNECTICUT
RESIDENT.  BECAUSE THE KLINES WISHED TO RESIDE IN CONNECTICUT AFTER
THEIR MARRIAGE, MRS. KLINE APPLIED TO THE UNIVERSITY OF CONNECTICUT
FROM CALIFORNIA.  IN LATE MAY, SHE WAS ACCEPTED AND INFORMED BY THE
UNIVERSITY THAT SHE WOULD BE CONSIDERED AN IN-STATE STUDENT.  ON JUNE
26, 1971, THE APPELLEE AND PETER KLINE WERE MARRIED IN CALIFORNIA, AND
SOON THEREAFTER TOOK UP RESIDENCE IN STORRS, CONNECTICUT, WHERE THEY
HAVE ESTABLISHED A PERMANENT HOME. 

[[HC444'(ORIGINAL DOCUMENT PAGE 444)'  MRS. KLINE HAS A CONNECTICUT
DRIVER'S LICENSE, HER CAR IS REGISTERED IN CONNECTICUT, AND SHE IS
REGISTERED AS A CONNECTICUT VOTER.  IN JULY 1971, PUBLIC ACT NO. 5 WENT
INTO EFFECT.  ACCORDINGLY, THE APPELLANT, DIRECTOR OF ADMISSIONS AT THE
UNIVERSITY OF CONNECTICUT, IRREVERSIBLY CLASSIFIED MRS. KLINE AS AN OUT
OF-STATE STUDENT, PURSUANT TO ^ 126(A) (3) OF THAT ACT.  AS A
CONSEQUENCE, SHE WAS REQUIRED TO PAY $150 TUITION AND A $200
NONRESIDENT FEE FOR THE FIRST SEMESTER, WHEREAS A STUDENT CLASSIFIED AS
A CONNECTICUT RESIDENT PAID NO TUITION; AND UPON REGISTRATION FOR THE
SECOND SEMESTER, SHE WAS REQUIRED TO PAY $425 TUITION PLUS ANOTHER $200
NONRESIDENT FEE, WHILE A STUDENT CLASSIFIED AS A CONNECTICUT RESIDENT
PAID ONLY $175 TUITION.  /3/ 

THE OTHER APPELLEE, PATRICIA CATAPANO, IS AN UNMARRIED GRADUATE
STUDENT AT THE SAME UNIVERSITY.  SHE APPLIED FOR ADMISSION FROM OHIO IN
JANUARY 1971, AND WAS ACCEPTED IN FEBRUARY OF THAT YEAR.  IN AUGUST
1971, SHE MOVED HER RESIDENCE FROM OHIO TO CONNECTICUT AND REGISTERED
AS A FULL-TIME STUDENT AT THE UNIVERSITY.  LIKE MRS. KLINE, SHE HAS A
CONNECTICUT DRIVER'S LICENSE, HER CAR IS REGISTERED IN CONNECTICUT, AND
SHE IS REGISTERED AS A CONNECTICUT VOTER.  PURSUANT TO ^ 126(A) (2) OF
THE 1971 ACT, THE APPELLANT CLASSIFIED HER PERMANENTLY AS AN OUT-OF
STATE STUDENT.  CONSEQUENTLY, SHE, TOO, WAS REQUIRED TO PAY $150
TUITION AND A $200 NONRESIDENT FEE FOR HER FIRST SEMESTER, AND $425
TUITION PLUS A $200 NONRESIDENT FEE FOR HER SECOND SEMESTER. 

APPELLEES THEN BROUGHT SUIT IN THE DISTRICT COURT PURSUANT TO THE
CIVIL RIGHTS ACTS, 42 U.S.C. ^ 1983, CONTENDING THAT THEY WERE BONA
FIDE RESIDENTS OF CONNECTICUT, AND THAT ^ 126 OF PUBLIC ACT NO. 5,
UNDER WHICH THEY WERE CLASSIFIED AS NONRESIDENTS FOR PURPOSES OF THEIR
TUITION AND FEES, INFRINGED THEIR RIGHTS TO DUE PROCESS OF LAW AND
EQUAL PROTECTION OF THE LAWS, GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE CONSTITUTION.  /4/ 

[[HC445'(ORIGINAL DOCUMENT PAGE 445)'  AFTER THE CONVENING OF A
THREE-JUDGE DISTRICT COURT, THAT COURT UNANIMOUSLY HELD ^^ 126(A) (2),
(A) (3), AND (A) (5) UNCONSTITUTIONAL, AS VIOLATIVE OF THE FOURTEENTH
AMENDMENT, AND ENJOINED THE APPELLANT FROM ENFORCING THOSE SECTIONS. 
346 F. SUPP. 526 (1972).  THE COURT ALSO FOUND THAT BEFORE THE
COMMENCEMENT OF THE SPRING SEMESTER IN 1972, EACH APPELLEE WAS A BONA
FIDE RESIDENT OF CONNECTICUT; AND IT ACCORDINGLY ORDERED THAT THE
APPELLANT REFUND TO EACH OF THEM THE AMOUNT OF TUITION AND FEES PAID IN
EXCESS OF THE AMOUNT PAID BY RESIDENT STUDENTS FOR THAT SEMESTER.  ON
DECEMBER 4, 1972, WE NOTED PROBABLE JURISDICTION OF THIS APPEAL.  409
U.S. 1036. 

THE APPELLEES DO NOT CHALLENGE, NOR DID THE DISTRICT COURT
INVALIDATE, THE OPTION OF THE STATE TO CLASSIFY STUDENTS AS RESIDENT
AND NONRESIDENT STUDENTS, THEREBY OBLIGATING NONRESIDENT STUDENTS TO
PAY HIGHER TUITION AND FEES THAN DO BONA FIDE RESIDENTS.  THE STATE'S
RIGHT TO MAKE SUCH A CLASSIFICATION IS UNQUESTIONED HERE.  RATHER, THE
APPELLEES ATTACK CONNECTICUT'S IRREVERSIBLE AND IRREBUTTABLE STATUTORY
PRESUMPTION THAT BECAUSE A STUDENT'S LEGAL ADDRESS WAS OUTSIDE THE
STATE AT THE TIME OF HIS APPLICATION FOR ADMISSION OR AT SOME POINT
DURING THE PRECEDING YEAR, HE REMAINS A NONRESIDENT FOR AS LONG AS HE
IS A STUDENT THERE.  THIS CONCLUSIVE PRESUMPTION, THEY SAY, IS INVALID
IN THAT IT ALLOWS THE STATE TO CLASSIFY AS "OUT-OF-STATE STUDENTS"
THOSE WHO ARE, IN FACT, BONA FIDE RESIDENTS OF THE STATE.  THE
APPELLEES CLAIM THAT THEY HAVE A CONSTITUTIONAL RIGHT TO CONTROVERT
THAT PRESUMPTION OF NONRESIDENCE BY PRESENTING EVIDENCE THAT THEY ARE
BONA FIDE RESIDENTS OF CONNECTICUT. 

[[HC446'(ORIGINAL DOCUMENT PAGE 446)'  THE DISTRICT COURT AGREED:
"ASSUMING THAT IT IS PERMISSIBLE FOR THE STATE TO IMPOSE A HEAVIER
BURDEN OF TUITION AND FEES ON NON-RESIDENT THAN ON RESIDENT STUDENTS,
THE STATE MAY NOT CLASSIFY AS 'OUT OF STATE STUDENTS' THOSE WHO DO NOT
BELONG IN THAT CLASS."  346 F. SUPP., AT 528.  WE AFFIRM THE JUDGMENT
OF THE DISTRICT COURT. 

STATUTES CREATING PERMANENT IRREBUTTABLE PRESUMPTIONS HAVE LONG BEEN
DISFAVORED UNDER THE DUE PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH
AMENDMENTS.  IN HEINER V. DONNAN, 285 U.S. 312 (1932), THE COURT WAS
FACED WITH A CONSTITUTIONAL CHALLENGE TO A FEDERAL STATUTE THAT CREATED
A CONCLUSIVE PRESUMPTION THAT GIFTS MADE WITHIN TWO YEARS PRIOR TO THE
DONOR'S DEATH WERE MADE IN CONTEMPLATION OF DEATH, THUS REQUIRING
PAYMENT BY HIS ESTATE OF A HIGHER TAX.  IN HOLDING THAT THIS
IRREFUTABLE ASSUMPTION WAS SO ARBITRARY AND UNREASONABLE AS TO DEPRIVE
THE TAXPAYER OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW, THE COURT
STATED THAT IT HAD "HELD MORE THAN ONCE THAT A STATUTE CREATING A
PRESUMPTION WHICH OPERATES TO DENY A FAIR OPPORTUNITY TO REBUT IT
VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT."  ID., AT
329.  SEE, E. G., SCHLESINGER V. WISCONSIN, 270 U.S. 230 (1926); HOEPER
V. TAX COMM'N, 284 U.S. 206 (1931).  SEE ALSO TOT V. UNITED STATES, 319
U.S. 463, 468 - 469 (1943); LEARY V. UNITED STATES, 395 U.S. 6, 29 - 53
(1969).  CF. TURNER V. UNITED STATES, 396 U.S. 398, 418 - 419 (1970). 

THE MORE RECENT CASE OF BELL V. BURSON, 402 U.S. 535 (1971),
INVOLVED A GEORGIA STATUTE WHICH PROVIDED THAT IF AN UNINSURED MOTORIST
WAS INVOLVED IN AN ACCIDENT AND COULD NOT POST SECURITY FOR THE AMOUNT
OF DAMAGES CLAIMED, HIS DRIVER'S LICENSE MUST BE SUSPENDED WITHOUT ANY
HEARING ON THE QUESTION OF FAULT OR RESPONSIBILITY.  THE COURT HELD
THAT SINCE THE STATE PURPORTED TO BE CONCERNED WITH FAULT IN SUSPENDING
A DRIVER'S LICENSE, IT COULD NOT, CONSISTENT WITH PROCEDURAL DUE
PROCESS, CONCLUSIVELY PRESUME FAULT FROM THE FACT THAT THE UNINSURED
MOTORIST WAS INVOLVED IN AN ACCIDENT, AND COULD NOT, THEREFORE, SUSPEND
HIS DRIVER'S LICENSE WITHOUT A HEARING ON THAT CRUCIAL FACTOR. 

[[HC447'(ORIGINAL DOCUMENT PAGE 447)' 

LIKEWISE, IN STANELY V. ILLINOIS, 405 U.S. 645 (1972), THE COURT
STRUCK DOWN, AS VIOLATIVE OF THE DUE PROCESS CLAUSE, ILLINOIS'
IRREBUTTABLE STATUTORY PRESUMPTION THAT ALL UNMARRIED FATHERS ARE
UNQUALIFIED TO RAISE THEIR CHILDREN.  BECAUSE OF THAT PRESUMPTION, THE
STATUTE REQUIRED THE STATE, UPON THE DEATH OF THE MOTHER, TO TAKE
CUSTODY OF ALL SUCH ILLEGITIMATE CHILDREN, WITHOUT PROVIDING ANY
HEARING ON THE FATHER'S PARENTAL FITNESS.  IT MAY BE, THE COURT SAID,
"THAT MOST UNMARRIED FATHERS ARE UNSUITABLE AND NEGLECTFUL PARENTS.  .
.  BUT ALL UNMARRIED FATHERS ARE NOT IN THIS CATEGORY; SOME ARE WHOLLY
SUITED TO HAVE CUSTODY OF THEIR CHILDREN."  ID., AT 654.  HENCE, THE
COURT HELD THAT THE STATE COULD NOT CONCLUSIVELY PRESUME THAT ANY
INDIVIDUAL UNMARRIED FATHER WAS UNFIT TO RAISE HIS CHILDREN; RATHER, IT
WAS REQUIRED BY THE DUE PROCESS CLAUSE TO PROVIDE A HEARING ON THAT
ISSUE.  ACCORDING TO THE COURT, ILLINOIS "INSISTS ON PRESUMING RATHER
THAN PROVING STANLEY'S UNFITNESS SOLELY BECAUSE IT IS MORE CONVENIENT
TO PRESUME THAN TO PROVE.  UNDER THE DUE PROCESS CLAUSE THAT ADVANTAGE
IS INSUFFICIENT TO JUSTIFY REFUSING A FATHER A HEARING . . ."  ID., AT
658.  /5/ 

THE SAME CONSIDERATIONS OBTAIN HERE. 

[[HC448'(ORIGINAL DOCUMENT PAGE 448)'  IT MAY BE THAT MOST APPLICANTS
TO CONNECTICUT'S UNIVERSITY SYSTEM WHO APPLY FROM OUTSIDE THE STATE OR
WITHIN A YEAR OF LIVING OUT OF STATE HAVE NO REAL INTENTION OF BECOMING
CONNECTICUT RESIDENTS AND WILL NEVER DO SO.  BUT IT IS CLEAR THAT NOT
ALL OF THE APPLICANTS FROM OUT OF STATE INEVITABLY FALL IN THIS
CATEGORY.  INDEED, IN THE PRESENT CASE, BOTH APPELLEES POSSESS MANY OF
THE INDICIA OF CONNECTICUT RESIDENCY, SUCH AS YEAR-ROUND CONNECTICUT
HOMES, CONNECTICUT DRIVERS'  LICENSES, CAR REGISTRATION, VOTER
REGISTRATIONS, ETC.; AND BOTH WERE FOUND BY THE DISTRICT COURT TO HAVE
BECOME BONA FIDE RESIDENTS OF CONNECTICUT BEFORE THE 1972 SPRING
SEMESTER.  YET, UNDER THE STATE'S STATUTORY SCHEME, NEITHER WAS
PERMITTED ANY OPPORTUNITY TO DEMONSTRATE THE BONA FIDES OF HER
CONNECTICUT RESIDENCY FOR TUITION PURPOSES, AND NEITHER WILL EVER HAVE
SUCH AN OPPORTUNITY IN THE FUTURE SO LONG AS SHE REMAINS A STUDENT. 

THE STATE PREFERS THREE REASONS TO JUSTIFY THAT PERMANENT
IRREBUTTABLE PRESUMPTION.  THE FIRST IS THAT THE STATE HAS A VALID
INTEREST IN EQUALIZING THE COST OF PUBLIC HIGHER EDUCATION BETWEEN
CONNECTICUT RESIDENTS AND NONRESIDENTS, AND THAT BY FREEZING A
STUDENT'S RESIDENTIAL STATUS AS OF THE TIME HE APPLIES, THE STATE
ENSURES THAT ITS BONA FIDE IN-STATE STUDENTS WILL RECEIVE THEIR FULL
SUBSIDY.  THE STATE'S OBJECTIVE OF COST EQUALIZATION BETWEEN BONA FIDE
RESIDENTS AND NONRESIDENTS MAY WELL BE LEGITIMATE, BUT BASING THE BONA
FIDES OF RESIDENCY SOLELY ON WHERE A STUDENT LIVED WHEN HE APPLIED FOR
ADMISSION TO THE UNIVERSITY IS USING A CRITERION WHOLLY UNRELATED TO
THAT OBJECTIVE. 

[[HC449'(ORIGINAL DOCUMENT PAGE 449)'  AS IS EVIDENT FROM THE
SITUATION OF THE APPELLEES, A STUDENT MAY BE A BONA FIDE RESIDENT OF
CONNECTICUT EVEN THOUGH HE APPLIED TO THE UNIVERSITY FROM OUT OF
STATE.  THUS, CONNECTICUT'S CONCLUSIVE PRESUMPTION OF NONRESIDENCE,
INSTEAD OF ENSURING THAT ONLY ITS BONA FIDE RESIDENTS RECEIVE THEIR
FULL SUBSIDY, ENSURES THAT CERTAIN OF ITS BONA FIDE RESIDENTS, SUCH AS
THE APPELLEES, DO NOT RECEIVE THEIR FULL SUBSIDY, AND CAN NEVER DO SO
WHILE THEY REMAIN STUDENTS. 

SECOND, THE STATE ARGUES THAT EVEN IF A STUDENT WHO APPLIED TO THE
UNIVERSITY FROM OUT OF STATE MAY AT SOME POINT BECOME A BONA FIDE
RESIDENT OF CONNECTICUT, THE STATE CAN NONETHELESS REASONABLY DECIDE TO
FAVOR WITH THE LOWER RATES ONLY ITS ESTABLISHED RESIDENTS, WHOSE PAST
TAX CONTRIBUTIONS TO THE STATE HAVE BEEN HIGHER.  ACCORDING TO THE
STATE, THE FACT THAT ESTABLISHED RESIDENTS OR THEIR PARENTS HAVE
SUPPORTED THE STATE IN THE PAST JUSTIFIES THE CONCLUSION THAT
APPLICANTS FROM OUT OF STATE -- WHO ARE PRESUMED NOT TO BE SUCH
ESTABLISHED RESIDENTS -- MAY BE DENIED THE LOWER RATES, EVEN IF THEY
HAVE BECOME BONA FIDE RESIDENTS. 

CONNECTICUT'S STATUTORY SCHEME, HOWEVER, MAKES NO DISTINCTION ON ITS
FACE BETWEEN ESTABLISHED RESIDENTS AND NEW RESIDENTS.  RATHER, THROUGH
^ 122, THE STATE PURPORTS TO DISTINGUISH, FOR TUITION PURPOSES, BETWEEN
RESIDENTS AND NONRESIDENTS BY GRANTING THE LOWER RATES TO THE FORMER
AND DENYING THEM TO THE LATTER.  /6/  IN THESE CIRCUMSTANCES, THE STATE
CANNOT NOW SEEK TO JUSTIFY ITS CLASSIFICATION OF CERTAIN BONA FIDE
RESIDENTS AS NONRESIDENTS, ON THE BASIS THAT THEIR CONNECTICUT
RESIDENCY IS "NEW."     MOREOVER, ^ 126 WOULD NOT ALWAYS OPERATE TO
EFFECTUATE THE STATE'S ASSERTED INTEREST.  FOR IT IS NOT AT ALL CLEAR
THAT THE CONCLUSIVE PRESUMPTION REQUIRED BY THAT SECTION PREVENTS ONLY
"NEW" RESIDENTS, RATHER THAN "ESTABLISHED" RESIDENTS, FROM OBTAINING
THE LOWER TUITION RATES. 

[[HC450'(ORIGINAL DOCUMENT PAGE 450)'  FOR EXAMPLE, A STUDENT WHOSE
PARENTS WERE LIFELONG RESIDENTS OF CONNECTICUT, BUT WHO WENT TO COLLEGE
AT HARVARD, ESTABLISHED A LEGAL ADDRESS THERE, AND APPLIED TO THE
UNIVERSITY OF CONNECTICUT'S GRADUATE SCHOOL DURING HIS SENIOR YEAR,
WOULD BE PERMANENTLY CLASSFIED AS AN "OUT OF STATE STUDENT," DESPITE
HIS FAMILY'S STATUS AS "ESTABLISHED"  RESIDENTS OF CONNECTICUT. 
SIMILARLY, THE APPELLEE KLINE MAY HERSELF BE A "NEW" RESIDENT OF
CONNECTICUT; BUT HER HUSBAND IS AN ESTABLISHED, LIFELONG RESIDENT,
WHOSE PAST TAX CONTRIBUTION TO THE STATE, UNDER THE STATE'S THEORY,
SHOULD ENTITLE HIS FAMILY TO THE LOWER RATES.  CONVERSELY, THE STATE
MAKES NO ATTEMPT TO ENSURE THAT THOSE STUDENTS TO WHOM IT DOES GRANT IN
STATE STATUS ARE "ESTABLISHED"  RESIDENTS OF CONNECTICUT.  ANY MARRIED
PERSON, FOR INSTANCE, WHO MOVES TO CONNECTICUT BEFORE APPLYING TO THE
UNIVERSITY WOULD BE CONSIDERED A CONNECTICUT RESIDENT, EVEN IF HE HAS
LIVED THERE ONLY ONE DAY.  THUS, EVEN IN TERMS OF THE STATE'S OWN
ASSERTED INTEREST IN FAVORING ESTABLISHED RESIDENTS OVER NEW RESIDENTS,
THE PROVISIONS OF ^ 126 ARE SO ARBITRARY AS TO CONSTITUTE A DENIAL OF
DUE PROCESS OF LAW.  /7/ 

THE THIRD GROUND ADVANCED TO JUSTIFY ^ 126 IS THAT IT PROVIDES A
DEGREE OF ADMINISTRATIVE CERTAINTY. 

[[HC451'(ORIGINAL DOCUMENT PAGE 451)'  THE STATE POINTS TO ITS
INTEREST IN PREVENTING OUT-OF-STATE STUDENTS FROM COMING TO CONNECTICUT
SOLELY TO OBTAIN AN EDUCATION AND THEN CLAIMING CONNECTICUT RESIDENCE
IN ORDER TO SECURE THE LOWER TUITION AND FEES.  THE IRREBUTTABLE
PRESUMPTION, THE STATE CONTENDS, MAKES IT EASIER TO SEPARATE OUT
STUDENTS WHO COME TO THE STATE SOLELY FOR ITS EDUCATIONAL FACILITIES
FROM TRUE CONNECTICUT RESIDENTS, BY ELIMINATING THE NEED FOR AN
INDIVIDUAL DETERMINATION OF THE BONA FIDES OF A PERSON WHO LIVED OUT OF
STATE AT THE TIME OF HIS APPLICATION.  SUCH AN INDIVIDUAL
DETERMINATION, IT IS SAID, WOULD NOT ONLY BE AN EXPENSIVE
ADMINISTRATIVE BURDEN, BUT WOULD ALSO BE VERY DIFFICULT TO MAKE, SINCE
IT IS HARD TO EVALUATE WHEN BONA FIDE RESIDENCY EXISTS.  WITHOUT THE
CONCLUSIVE PRESUMPTION, THE STATE ARGUES, IT WOULD BE ALMOST IMPOSSIBLE
TO PREVENT OUT-OF-STATE STUDENTS FROM CLAIMING A CONNECTICUT RESIDENCE
MERELY TO OBTAIN THE LOWER RATES. 

IN STANLEY V. ILLINOIS, SUPRA, HOWEVER, THE COURT STATED THAT "THE
CONSTITUTION RECOGNIZES HIGHER VALUES THAN SPEED AND EFFICIENCY."  405
U.S., AT 656.  THE STATE'S INTEREST IN ADMINISTRATIVE EASE AND
CERTAINTY CANNOT, IN AND OF ITSELF, SAVE THE CONCLUSIVE PRESUMPTION
FROM INVALIDITY UNDER THE DUE PROCESS CLAUSE WHERE THERE ARE OTHER
REASONABLE AND PRACTICABLE MEANS OF ESTABLISHING THE PERTINENT FACTS ON
WHICH THE STATE'S OBJECTIVE IS PREMISED.  IN THE SITUATION BEFORE US,
REASONABLE ALTERNATIVE MEANS FOR DETERMINING BONA FIDE RESIDENCE ARE
AVAILABLE.  INDEED, ONE SUCH METHOD HAS ALREADY BEEN ADOPTED BY
CONNECTICUT; AFTER ^ 126 WAS INVALIDATED BY THE DISTRICT COURT, THE
STATE ESTABLISHED REASONABLE CRITERIA FOR EVALUATING BONA FIDE
RESIDENCE FOR PURPOSES OF TUITION AND FEES AT ITS UNIVERSITY SYSTEM. 
/8/  THESE CRITERIA, WHILE PERHAPS MORE BURDENSOME TO APPLY THAN AN
IRREBUTTABLE PRESUMPTION, ARE CERTAINLY SUFFICIENT TO PREVENT ABUSE OF
THE LOWER, IN-STATE RATES BY STUDENTS WHO COME TO CONNECTICUT SOLELY TO
OBTAIN AN EDUCATION.  /9/ 

[[HC452'(ORIGINAL DOCUMENT PAGE 452)' 

IN SUM, SINCE CONNECTICUT PURPORTS TO BE CONCERNED WITH RESIDENCY IN
ALLOCATING THE RATES FOR TUITION AND FEES AT ITS UNIVERSITY SYSTEM, IT
IS FORBIDDEN BY THE DUE PROCESS CLAUSE TO DENY AN INDIVIDUAL THE
RESIDENT RATES ON THE BASIS OF A PERMANENT AND IRREBUTTABLE PRESUMPTION
OF NONRESIDENCE, WHEN THAT PRESUMPTION IS NOT NECESSARILY OR
UNIVERSALLY TRUE IN FACT, AND WHEN THE STATE HAS REASONABLE ALTERNATIVE
MEANS OF MAKING THE CRUCIAL DETERMINATION.  RATHER, STANDARDS OF DUE
PROCESS REQUIRE THAT THE STATE ALLOW SUCH AN INDIVIDUAL THE OPPORTUNITY
TO PRESENT EVIDENCE SHOWING THAT HE IS A BONA FIDE RESIDENT ENTITLED TO
THE IN-STATE RATES.  SINCE ^ 126 PRECLUDED THE APPELLEES FROM EVER
REBUTTING THE PRESUMPTION THAT THEY WERE NONRESIDENTS OF CONNECTICUT,
THAT STATUTE OPERATED TO DEPRIVE THEM OF A SIGNIFICANT AMOUNT OF THEIR
MONEY WITHOUT DUE PROCESS OF LAW. 

WE ARE AWARE, OF COURSE, OF THE SPECIAL PROBLEMS INVOLVED IN
DETERMINING THE BONA FIDE RESIDENCE OF COLLEGE STUDENTS WHO COME FROM
OUT OF STATE TO ATTEND THAT STATE'S PUBLIC UNIVERSITY.  OUR HOLDING
TODAY SHOULD IN NO WISE BE TAKEN TO MEAN THAT CONNECTICUT MUST CLASSIFY
THE STUDENTS IN ITS UNIVERSITY SYSTEM AS RESIDENTS, FOR PURPOSES OF
TUITION AND FEES, JUST BECAUSE THEY GO TO SCHOOL THERE.  NOR SHOULD OUR
DECISION BE CONSTRUED TO DENY A STATE THE RIGHT TO IMPOSE ON A STUDENT,
AS ONE ELEMENT IN DEMONSTRATING BONA FIDE RESIDENCE, A REASONABLE
DURATIONAL RESIDENCY REQUIREMENT, WHICH CAN BE MET WHILE IN STUDENT
STATUS.  /10/  WE FULLY RECOGNIZE THAT A STATE HAS A LEGITIMATE
INTEREST IN PROTECTING AND PRESERVING THE QUALITY OF ITS COLLEGES AND
UNIVERSITIES AND THE RIGHT OF ITS OWN BONA FIDE RESIDENTS TO ATTEND
SUCH INSTITUTIONS ON A PREFERENTIAL TUITION BASIS. 

[[HC453'(ORIGINAL DOCUMENT PAGE 453)' 

WE HOLD ONLY THAT A PERMANENT IRREBUTTABLE PRESUMPTION OF
NONRESIDENCE -- THE MEANS ADOPTED BY CONNECTICUT TO PRESERVE THAT
LEGITIMATE INTEREST -- IS VIOLATIVE OF THE DUE PROCESS CLAUSE, BECAUSE
IT PROVIDES NO OPPORTUNITY FOR STUDENTS WHO APPLIED FROM OUT OF STATE
TO DEMONSTRATE THAT THEY HAVE BECOME BONA FIDE CONNECTICUT RESIDENTS. 
THE STATE CAN ESTABLISH SUCH REASONABLE CRITERIA FOR IN-STATE STATUS AS
TO MAKE VIRTUALLY CERTAIN THAT STUDENTS WHO ARE NOT, IN FACT, BONA FIDE
RESIDENTS OF THE STATE, BUT WHO HAVE COME THERE SOLELY FOR EDUCATIONAL
PURPOSES, CANNOT TAKE ADVANTAGE OF THE IN-STATE RATES. 

[[HC454'(ORIGINAL DOCUMENT PAGE 454)'  INDEED, AS STATED ABOVE, SUCH
CRITERIA EXIST; AND SINCE ^ 126 WAS INVALIDATED, CONNECTICUT, THROUGH
AN OFFICIAL OPINION OF ITS ATTORNEY GENERAL, HAS ADOPTED ONE SUCH
REASONABLE STANDARD FOR DETERMINING THE RESIDENTIAL STATUS OF A
STUDENT.  THE ATTORNEY GENERAL'S OPINION STATES: 

     "IN REVIEWING A CLAIM OF IN-STATE STATUS, THE ISSUE BECOMES

  ESSENTIALLY ONE OF DOMICILE.  IN GENERAL, THE DOMICILE OF AN

  INDIVIDUAL IS HIS TRUE, FIXED AND PERMANENT HOME AND PLACE OF

  HABITATION.  IT IS THE PLACE TO WHICH, WHENEVER HE IS ABSENT, HE

  HAS THE INTENTION OF RETURNING.  THIS GENERAL STATEMENT, HOWEVER,

IS DIFFICULT OF APPLICATION.  EACH INDIVIDUAL CASE MUST BE

  DECIDED ON ITS OWN PARTICULAR FACTS.  IN REVIEWING A CLAIM,

  RELEVANT CRITERIA INCLUDE YEAR-ROUND RESIDENCE, VOTER

  REGISTRATION, PLACE OF FILING TAX RETURNS, PROPERTY OWNERSHIP,

  DRIVER'S LICENSE, CAR REGISTRATION, MARITAL STATUS, VACATION

  EMPLOYMENT, ETC."  /11/ 

BECAUSE WE HOLD THAT THE PERMANENT IRREBUTTABLE PRESUMPTION OF
NONRESIDENCE CREATED BY SUBSECTIONS (A) (2), (A) (3), AND (A) (5) OF
CONN. GEN. STAT. REV. ^ 10 - 329 (B) (SUPP. 1969), AS AMENDED BY PUBLIC
ACT NO. 5, ^ 126 (JUNE SESS. 1971), VIOLATES THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, THE JUDGMENT OF THE DISTRICT COURT IS
AFFIRMED. 

              IT IS SO ORDERED. 

/1/  MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL JOIN THE OPINION
OF THE COURT WITH THE QUALIFICATION NOTED IN MR. JUSTICE MARSHALL'S
CONCURRING OPINION, POST, P. 454. 

/2/  SECTION 122 OF THAT ACT PROVIDES THAT "THE BOARD OF TRUSTEES OF
THE UNIVERSITY OF CONNECTICUT SHALL FIX FEES FOR TUITION OF NOT LESS
THAN THREE HUNDRED FIFTY DOLLARS FOR RESIDENTS OF THIS STATE AND NOT
LESS THAN EIGHT HUNDRED FIFTY DOLLARS FOR NONRESIDENTS.  . ."  PURSUANT
TO THIS STATUTE, THE UNIVERSITY PROMULGATED REGULATIONS FIXING THE
TUITION PER SEMESTER AS FOLLOWS:  (TABLE OMITTED) IN ADDITION, OUT-OF
STATE STUDENTS MUST PAY A $200 NONRESIDENT FEE PER SEMESTER. 

/3/  SEE N. 1, SUPRA. 

/4/  WHILE THE CASE WAS PENDING IN THE DISTRICT COURT, THE
CONNECTICUT LEGISLATURE PASSED A BILL RELATING TO TUITION PAYMENTS BY
NONRESIDENTS, HOUSE BILL NO. 5302, WHICH WOULD HAVE REPEALED THE
PARTICULAR PORTIONS OF THE STATUTE THAT WERE UNDER CONSTITUTIONAL
ATTACK.  ON MAY 18, 1972, HOWEVER, THE GOVERNOR OF CONNECTICUT VETOED
THAT BILL. 

/5/  MOREOVER, IN CARRINGTON V. RASH, 380 U.S. 89 (1965), THE COURT
HELD THAT A PERMANENT IRREBUTTABLE PRESUMPTION OF NONRESIDENCE VIOLATED
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THAT CASE
INVOLVED A PROVISION OF THE TEXAS CONSTITUTION WHICH PROHIBITED ANY
MEMBER OF THE ARMED FORCES WHO ENTERED THE SERVICE AS A RESIDENT OF
ANOTHER STATE AND THEN MOVED HIS HOME TO TEXAS DURING THE COURSE OF HIS
MILITARY DUTY, FROM EVER SATISFYING THE RESIDENCE REQUIREMENT FOR
VOTING IN TEXAS ELECTIONS, SO LONG AS HE REMAINED A MEMBER OF THE ARMED
FORCES.  THE EFFECT OF THAT PROVISION WAS TO CREATE A CONCLUSIVE
PRESUMPTION THAT ALL SERVICEMEN WHO MOVED TO TEXAS DURING THEIR
MILITARY SERVICE, EVEN IF THEY BECAME BONA FIDE RESIDENTS OF TEXAS,
NONETHELESS REMAINED NONRESIDENTS FOR PURPOSES OF VOTING.  THE COURT
HELD THAT "(BY FORBIDDING A SOLDIER EVER TO CONTROVERT THE PRESUMPTION
OF NONRESIDENCE, THE TEXAS CONSTITUTION IMPOSES AN INVIDIOUS
DISCRIMINATION IN VIOLATION OF THE FOURTEENTH AMENDMENT."  ID., AT 96. 
SEE ALSO DUNN V. BLUMSTEIN, 405 U.S. 330, 349 - 352 (1972); SHAPIRO V.
THOMPSON, 394 U.S. 618 (1969). 

/6/  SEE N. 1, SUPRA. 

/7/  BUT EVEN IF WE ACCEPTED THE STATE'S ARGUMENT THAT ITS STATUTORY
SCHEME OPERATES TO APPORTION TUITION RATES ON THE BASIS OF OLD AND NEW
RESIDENCY, THAT JUSTIFICATION ITSELF WOULD GIVE RISE TO GRAVE PROBLEMS
UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  FOR IN
SHAPIRO V. THOMPSON, SUPRA, THE COURT REJECTED THE CONTENTION THAT A
CHALLENGED CLASSIFICATION COULD BE SUSTAINED AS AN ATTEMPT TO
DISTINGUISH BETWEEN OLD AND NEW RESIDENTS ON THE BASIS OF THE
CONTRIBUTION THEY HAVE MADE TO THE COMMUNITY THROUGH PAST PAYMENT OF
TAXES.  THAT REASONING, THE COURT STATES, "WOULD LOGICALLY PERMIT THE
STATE TO BAR NEW RESIDENTS FROM SCHOOLS, PARKS, AND LIBRARIES OR
DEPRIVE THEM OF POLICE AND FIRE PROTECTION.  INDEED IT WOULD PERMIT THE
STATE TO APPORTION ALL BENEFITS AND SERVICES ACCORDING TO THE PAST TAX
CONTRIBUTIONS OF ITS CITIZENS.  THE EQUAL PROTECTION CLAUSE PROHIBITS
SUCH AN APPORTIONMENT OF STATE SERVICES."  394 U.S., AT 632 - 633.  CF.
CARRINGTON V. RASH, 380 U.S., AT 96; DUNN V. BLUMSTEIN, 405 U.S., AT
354. 

/8/  SEE INFRA, AT 454. 

/9/  CF. CARRINGTON V. RASH, SUPRA, AT 95 - 96; DUNN V. BLUMSTEIN,
SUPRA, AT 349 - 352; SHAPIRO V. THOMPSON, SUPRA, AT 636. 

/10/  IN STARNS V. MALKERSON, 326 F. SUPP. 234 (MINN. 1970), THE
DISTRICT COURT UPHELD A REGULATION OF THE UNIVERSITY OF MINNESOTA
PROVIDING THAT NO STUDENT COULD QUALIFY AS A RESIDENT FOR TUITION
PURPOSES UNLESS HE HAD BEEN A BONA FIDE DOMICILIARY OF THE STATE FOR AT
LEAST A YEAR IMMEDIATELY PRIOR THERETO.  THIS COURT AFFIRMED
SUMMARILY.  401 U.S. 985 (1971).  MINNESOTA'S ONE-YEAR DURATIONAL
RESIDENCY REQUIREMENT, HOWEVER, DIFFERED IN AN IMPORTANT RESPECT FROM
THE PERMANENT IRREBUTTABLE PRESUMPTION AT ISSUE IN THE PRESENT CASE. 
UNDER THE REGULATION INVOLVED IN STARNS, A STUDENT WHO APPLIED TO THE
UNIVERSITY FROM OUT OF STATE COULD REBUT THE PRESUMPTION OF
NONRESIDENCY, AFTER HAVING LIVED IN THE STATE FOR ONE YEAR, BY
PRESENTING SUFFICIENT OTHER EVIDENCE TO SHOW BONA FIDE DOMICILE WITHIN
MINNOSOTA.  IN OTHER WORDS, RESIDENCE WITHIN THE STATE FOR ONE YEAR,
WHETHER OR NOT IN STUDENT STATUS, WAS MERELY ONE ELEMENT WHICH
MINNESOTA REQUIRED TO DEMONSTRATE BONA FIDE DOMICILE.  BY CONTRAST, THE
CONNECTICUT STATUTE PREVENTS A STUDENT WHO APPLIED TO THE UNIVERSITY
FROM OUT OF STATE, OR WITHIN A YEAR OF LIVING OUT OF STATE, FROM EVER
REBUTTING THE PRESUMPTION OF NONRESIDENCE DURING THE ENTIRE TIME THAT
HE REMAINS A STUDENT, NO MATTER HOW LONG HE HAS BEEN A BONA FIDE
RESIDENT OF THE STATE FOR OTHER PURPOSES.  UNDER MINNESOTA'S DURATIONAL
RESIDENCY REQUIREMENT, A STUDENT COULD QUALIFY FOR IN-STATE RATES BY
LIVING WITHIN THE STATE FOR A YEAR IN STUDENT STATUS; WHEREAS UNDER
CONNECTICUT'S SCHEME, A PERSON WHO APPLIED FROM OUT OF STATE CAN NEVER
SO QUALIFY SO LONG AS HE REMAINS IN STUDENT STATUS.  SEE ALSO KIRK V.
BOARD OF REGENTS OF UNIV.  OF CALIFORNIA, 273 CAL. APP. 2D 430, 78 CAL.
RPTR.  260 (1969), APPEAL DISMISSED, 396 U.S. 554 (1970). 

/11/  OPINION OF THE ATTORNEY GENERAL OF THE STATE OF CONNECTICUT
REGARDING NON-RESIDENT TUITION, SEPT. 6, 1972 (UNREPORTED). 

[[DOP 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING. 

I JOIN THE OPINION OF THE COURT EXCEPT INSOFAR AS IT SUGGESTS THAT A
STATE MAY IMPOSE A ONE-YEAR RESIDENCY REQUIREMENT AS A PREREQUISITE TO
QUALIFYING FOR IN-STATE TUITION BENEFITS.  SEE ANTE, AT 452 AND N. 9. 
THAT QUESTION IS NOT PRESENTED BY THIS CASE SINCE HERE WE DEAL WITH A
PERMANENT, IRREBUTTABLE PRESUMPTION OF NONRESIDENCY BASED ON THE FACT
THAT A STUDENT WAS A NONRESIDENT AT THE TIME HE APPLIED FOR ADMISSION
TO THE STATE UNIVERSITY SYSTEM.  I RECOGNIZE THAT IN STARNS V.
MALKERSON, 401 U. S. 985 (1971), WE SUMMARILY AFFIRMED A DISTRICT COURT
DECISION SUSTAINING A ONE-YEAR RESIDENCY REQUIREMENT FOR RECEIPT OF IN
STATE TUITION BENEFITS.  BUT I NOW HAVE SERIOUS QUESTION AS TO THE
VALIDITY OF THAT SUMMARY DECISION IN LIGHT OF WELL-ESTABLISHED
PRINCIPLES, UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, WHICH LIMIT THE STATES' ABILITY TO SET RESIDENCY
REQUIREMENTS FOR THE RECEIPT OF RIGHTS AND BENEFITS BESTOWED ON BONA
FIDE STATE RESIDENTS.  SEE DUNN V. BLUMSTEIN, 405 U.S. 330 (1972);
SHAPIRO V. THOMPSON, 394 U.S. 618 (1969).  BECAUSE THE COURT FINDS
SUFFICIENT BASIS IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
TO DISPOSE OF THE CONSTITUTIONALITY OF THE CONNECTICUT STATUTE HERE AT
ISSUE, IT HAS NO OCCASION TO ADDRESS THE SERIOUS EQUAL PROTECTION
QUESTIONS RAISED BY THIS AND OTHER TUITION RESIDENCY LAWS.  IN THE
ABSENCE OF FULL CONSIDERATION OF THOSE EQUAL PROTECTION QUESTIONS, I
WOULD LEAVE THE VALIDITY OF A ONE-YEAR RESIDENCE REQUIREMENT FOR A
FUTURE CASE IN WHICH THE ISSUE IS SQUARELY PRESENTED.     IN ADDITION,
I CANNOT AGREE WITH MY BROTHER REHNQUIST'S ASSERTION IN DISSENT THAT
THE COURT'S OPINION TODAY REPRESENTS A RETURN TO THE DOCTRINE OF
SUBSTANTIVE DUE PROCESS.  THIS CASE INVOLVES ONLY THE VALIDITY OF THE
CONCLUSIVE PRESUMPTION OF NONRESIDENCY ERECTED BY THE STATE, AND, AS
SUCH, CONCERNS NOTHING MORE THAN THE PROCEDURES BY WHICH THE STATE
DETERMINES WHETHER OR NOT A PERSON IS A RESIDENT FOR TUITION PURPOSES. 

[[DOP 

MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT. 

IN STARNS V. MALKERSON, 401 U.S. 985 (1971), A REGULATION ISSUED BY
THE BOARD OF REGENTS PROVIDED THAT NO STUDENT COULD QUALIFY FOR THE
LOWER, IN-STATE TUITION TO THE UNIVERSITY OF MINNESOTA UNTIL HE HAD
BEEN A BONA FIDE DOMICILIARY OF THE STATE FOR ONE YEAR.  THE DISTRICT
COURT UPHELD THE LAW, 326 F. SUPP. 234 (MINN. 1970), AND WE AFFIRMED
SUMMARILY, ALTHOUGH THE EFFECT OF THE REGENTS' REGULATION WAS TO
PREVENT AN ADMITTED MINNESOTA DOMICILIARY FROM BEING TREATED AS SUCH
FOR A PERIOD OF ONE YEAR.  I THOUGHT THE CASE WARRANTED PLENARY
TREATMENT, BUT I DID NOT THEN, NOR DO I NOW, DISAGREE WITH THE
JUDGMENT.  BECAUSE I HAVE DIFFICULTY DISTINGUISHING, ON DUE PROCESS
GROUNDS, WHETHER DEEMED PROCEDURAL OR SUBSTANTIVE OR WHETHER PUT IN
TERMS OF CONCLUSIVE PRESUMPTIONS, BETWEEN THE MINNESOTA ONE-YEAR
REQUIREMENT AND THE CONNECTICUT LAW THAT, FOR TUITION PURPOSES, DOES
NOT PERMIT CONNECTICUT RESIDENCE TO BE ACQUIRED WHILE ATTENDING
CONNECTICUT SCHOOLS, I CANNOT JOIN THE COURT'S OPINION. 

I CONCUR IN THE JUDGMENT, HOWEVER, BECAUSE CONNECTICUT, ALTHOUGH IT
MAY LEGALLY DISCRIMINATE BETWEEN ITS RESIDENTS AND NONRESIDENTS FOR
PURPOSES OF TUITION, HERE INVIDIOUSLY DISCRIMINATES AMONG AT LEAST
THREE CLASSES OF BONA FIDE CONNECTICUT RESIDENTS.  FIRST, THERE ARE
THOSE UNMARRIED STUDENTS WHO HAVE RESIDED IN CONNECTICUT ONE YEAR PRIOR
TO APPLICATION OR WHO LATER RESIDE IN CONNECTICUT FOR A YEAR WITHOUT
GOING TO SCHOOL.  THEY PAY THE SUBSTANTIALLY LOWER IN-STATE TUITION. 
SECOND, THERE ARE THE MARRIED STUDENTS WHO HAVE A LEGAL ADDRESS IN
CONNECTICUT AT THE TIME OF APPLICATION.  THEY ALSO PAY THE LOWER
TUITION, WHETHER OR NOT THEY HAVE RESIDED IN CONNECTICUT FOR A YEAR
PRIOR TO APPLICATION.  THIRD, THERE ARE THE UNMARRIED STUDENTS WHOSE
LEGAL ADDRESS HAS BEEN OUTSIDE CONNECTICUT AT SOME TIME DURING THE YEAR
PRIOR TO APPLICATION BUT WHO LATER BECOME LEGAL RESIDENTS OF
CONNECTICUT, BEFORE OR AFTER APPLICATION OR BEFORE OR AFTER
MATRICULATION, AND REMAIN SUCH FOR A LEAST ONE YEAR.  THESE STUDENTS,
ALTHOUGH YEAR-LONG RESIDENTS, MUST CONTINUE TO PAY OUT-OF-STATE TUITION
FOR AS LONG AS THEY ARE IN SCHOOL. 

THIS DISCRIMINATION BETWEEN CLASSES OF BONA FIDE RESIDENTS OF THE
STATE IS SOUGHT TO BE JUSTIFIED, AS I UNDERSTAND IT. ON THE SOLE GROUND
THAT TOO FEW STUDENTS FROM OUT OF STATE ACTUALLY BECOME CONNECTICUT
RESIDENTS TO REQUIRE THE STATE TO SORT OUT THIS SMALL NUMBER BY
INVESTIGATING THE INEVITABLY LARGER NUMBER OF RESIDENCY CLAIMS WHICH
WOULD BE SUBMITTED IF THE RULE WERE OTHERWISE BUT WHICH FOR THE MOST
PART WOULD BE BOGUS. 

IN BELL V. BURSON, 402 U.S. 535 (1971), UNDER THE APPLICABLE STATE
LAW A DRIVER'S LICENSE COULD NOT BE REVOKED WITHOUT PROOF OF FAULT,
BUT, UPON THE OCCURRENCE OF AN ACCIDENT, THE STATE AUTOMATICALLY
SUSPENDED THE LICENSE WITHOUT SHOWING EVEN PROBABLE FAULT AND WITHOUT
AN OPPORTUNITY TO PROVE NONFAULT.  THE STATE NEITHER ARGUED NOR CLAIMED
THAT THERE WAS A MORE LIKELY THAN NOT INFERENCE OF FAULT FROM THE MERE
EVENT OF AN ACCIDENT. 

IN CARRINGTON V. RASH, 380 U.S. 89 (1965), THE STATE REFUSED THOSE
IN ACTIVE MILITARY SERVICE THE OPPORTUNITY TO PROVE RESIDENCE IN THE
STATE AND THUS THEIR ELIGIBILITY TO VOTE.  THE COURT STRUCK DOWN THIS
RESTRICTION.  THE STATE'S INTEREST IN AVOIDING THE TASK OF VERIFYING
CLAIMS OF RESIDENCY WAS INSUFFICIENTLY WEIGHTY TO WARRANT INTERFERENCE
WITH THE RIGHT TO VOTE OF THE MILITARY PERSONNEL WHO HAD ACTUALLY
BECOME DOMICILED IN THE STATE. 

IN STANLEY V. ILLINOIS, 405 U.S. 645 (1972), THE STATE STANDARD FOR
SEPARATING CHILD AND PARENT WAS UNFITNESS OF PARENT.  ACCEPTING THE
STATE'S ARGUMENT THAT MOST UNWED FATHERS ARE UNFIT, WE NEVERTHELESS
REQUIRED THE STATE TO GIVE THOSE FATHERS A HEARING ON THEIR FITNESS
PRIOR TO DEPRIVING THEM OF THE CUSTODY OF THEIR CHILDREN.  IT WAS
ADMINISTRATIVELY CONVENIENT FOR THE STATE TO PRESUME UNFITNESS AND SO
AVOID HEARINGS TO IDENTIFY THE PERHAPS SMALLER NUMBER OF FIT, UNWED
FATHERS; BUT THIS JUSTIFICATION WAS FOUND INSUFFICIENT IN VIEW OF THE
STRONG INTEREST OF A NATURAL PARENT IN THE CUSTODY OF HIS CHILD, AN
INTEREST THAT WE THOUGHT CAME TO THIS COURT "'WITH A MOMENTUM FOR
RESPECT LACKING WHEN APPEAL IS MADE TO LIBERTIES WHICH DERIVE MERELY
FROM SHIFTING ECONOMIC ARRANGEMENTS.'"  ID., AT 651, QUOTING FROM
KOVACS V. COOPER, 336 U.S. 77, 95 (1949) (FRANKFURTER, J.,
CONCURRING).  THE UNWED FATHER'S INTEREST WAS AT LEAST COGNIZABLE AND
SUBSTANTIAL ENOUGH TO FORBID THE STATE, IN THE NAME OF ADMINISTRATIVE
CONVENIENCE, FROM DENYING THE UNWED FATHER A HEARING ON PARENTAL
FITNESS PRIOR TO DECLARING HIS CHILD A WARD OF THE STATE.  THE SAME
CONSIDERATIONS LED US TO CONCLUDE THAT THE UNWED FATHER WAS DENIED
EQUAL PROTECTION OF THE LAWS. 

FROM THESE AND OTHER CASES, SUCH AS DANDRIDGE V. WILLIAMS, 397 U.S.
471 (1970); REED V. REED, 404 U.S. 71 (1971); FRONTIERO V. RICHARDSON,
411 U.S. 677 (1973); AND WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S.
164 (1972), IT IS CLEAR THAT WE EMPLOY NOT JUST ONE, OR TWO, BUT, AS MY
BROTHER MARSHALL HAS SO ABLY DEMONSTRATED, A "SPECTRUM OF STANDARDS IN
REVIEWING DISCRIMINATION ALLEGEDLY VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE."  SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ, 411
U.S. 1, 98 - 99 (MARSHALL, J., DISSENTING).  SOMETIMES WE JUST SAY THE
CLAIM IS "INVIDIOUS" AND LET THE MATTER REST THERE, AS MR. JUSTICE
STEWART DID, FOR EXAMPLE, IN CONCURRING IN THE JUDGMENT IN FRONTIERO. 
BUT AT OTHER TIMES WE SUSTAIN THE DISCRIMINATION, IF IT IS JUSTIFIABLE
ON ANY CONCEIVABLE RATIONAL BASIS, OR IF IT IS JUSTIFIABLE ON ANY
CONCEIVABLE RATIONAL BASIS, OR STRIKE IT DOWN, UNLESS SUSTAINED BY SOME
COMPELLING INTEREST OF THE STATE, AS, FOR EXAMPLE, WHEN A STATE IMPOSES
A DISCRIMINATION THAT BURDENS OR PENALIZES THE EXERCISE OF A
CONSTITUTIONAL RIGHT.  SEE, E. G., SHAPIRO V. THOMPSON, 394 U.S. 618
(1969).  I AM UNCOMFORTABLE WITH THE DICHOTOMY, FOR IT MUST NOW BE
OBVIOUS, OR HAS BEEN ALL ALONG, THAT, AS THE COURT'S ASSESSMENT OF THE
WEIGHT AND VALUE OF THE INDIVIDUAL INTEREST ESCALATES, THE LESS LIKELY
IT IS THAT MERE ADMINISTRATIVE CONVENIENCE AND AVOIDANCE OF HEARINGS OR
INVESTIGATIONS WILL BE SUFFICIENT TO JUSTIFY WHAT OTHERWISE WOULD
APPEAR TO BE IRRATIONAL DISCRIMINATIONS. 

HERE, IT IS ENOUGH FOR ME THAT THE INTEREST INVOLVED IS THAT OF
OBTAINING A HIGHER EDUCATION, THAT THE DIFFERENCE BETWEEN IN-STATE AND
OUT-OF-STATE TUITION IS SUBSTANTIAL, AND THAT THE STATE, WITHOUT
SUFFICIENT JUSTIFICATION, IMPOSES A ONE-YEAR RESIDENCY REQUIREMENT ON
SOME STUDENTS BUT NOT ON OTHERS, AND ALSO REFUSES, NO MATTER WHAT THE
CIRCUMSTANCES, TO PERMIT THE REQUIREMENT TO BE SATISFIED THROUGH BONA
FIDE RESIDENCE WHILE IN SCHOOL.  IT IS PLAIN ENOUGH THAT THE STATE HAS
ONLY THE MOST ATTENUATED INTEREST IN TERMS OF ADMINISTRATIVE
CONVENIENCE IN MAINTAINING THIS BIZARRE PATTERN OF DISCRIMINATION AMONG
THOSE WHO MUST OR MUST NOT PAY A SUBSTANTIAL TUITION TO THE
UNIVERSITY.  THE DISCRIMINATION IMPOSED BY THE STATE IS INVIDIOUS AND
VIOLATES THE EQUAL PROTECTION CLAUSE. 

[[DOP 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

I FIND MYSELF UNABLE TO JOIN THE ACTION TAKEN TODAY BECAUSE THE
COURT IN THIS CASE STRAYS FROM WHAT SEEM TO ME SOUND AND ESTABLISHED
CONSTITUTIONAL PRINCIPLES IN ORDER TO REACH WHAT IT CONSIDERS A JUST
RESULT IN A PARTICULAR CASE; THIS GIVES MEANING TO THE ANCIENT WARNING
THAT "HARD CASES MAKE BAD LAW."  THE COURT PERMITS THIS "HARD" CASE TO
MAKE SOME VERY DUBIOUS LAW. 

A STATE UNIVERSITY TODAY IS AN ESTABLISHMENT WITH CAPITAL COSTS OF
MANY MILLIONS OF DOLLARS OF INVESTMENT.  ITS ANNUAL OPERATING COSTS
LIKEWISE MAY RUN INTO THE MILLIONS.  PARENTS AND OTHER TAXPAYERS
WILLINGLY CARRY THIS HEAVY BURDEN BECAUSE THEY BELIEVE IN THE VALUES OF
HIGHER EDUCATION.  IT IS NOT NARROW PROVINCIALISM FOR THE STATE TO
THINK THAT EACH STATE SHOULD CARRY ITS OWN EDUCATIONAL BURDENS.  UNTIL
WE REDEFINE OUR SYSTEM OF GOVERNMENT -- AS WE ARE FREE TO DO BY
CONSTITUTIONALLY PRESCRIBED MEANS -- THE STATES MAY RESTRICT SUBSIDIZED
EDUCATION TO THEIR OWN RESIDENTS.  THIS MUCH THE COURT RECOGNIZES AND
IT LIKEWISE RECOGNIZES THAT THE STATUTORY SCHEME UNDER REVIEW
REASONABLY TENDS TO SUPPORT THAT END. 

COMMENDABLY, THE COURT HAS TRIED TO CAST THE OPINION IN THE
NARROWEST POSSIBLE TERMS, BUT IT SEEMS NONETHELESS TO ACCOMPLISH A
TRANSFERRENCE OF THE ELUSIVE AND ARBITRARY "COMPELLING STATE INTEREST"
CONCEPT INTO THE ORBIT OF THE DUE PROCESS CLAUSE.  THE COURT
CATEGORIZES THE CONNECTICUT STATUTORY CLASSIFICATION AS A "PERMANENT
AND IRREBUTTABLE PRESUMPTION"; IT EXPLAINS THAT THIS "PRESUMPTION"
LEADS TO UNSEEMLY RESULTS IN THIS AND OTHER ISOLATED CASES; AND IT
RELIES UPON THE STATE'S STOPGAP GUIDELINES FOR DETERMINING BONA FIDE
RESIDENCY TO DEMONSTRATE THAT "THE STATE HAS REASONABLE ALTERNATIVE
MEANS OF MAKING THE CRUCIAL DETERMINATION."  THIS IS THE LANGUAGE OF
STRICT SCRUTINY.  WE OUGHT NOT TRY TO CORRECT "UNSEEMLY RESULTS" OF
STATE STATUTES BY RESORTING TO CONSITUTIONAL ADJUDICATION. 

DISTRESSINGLY, THE COURT APPLIES "STRICT SCRUTINY" AND INVALIDATES
CONNECTICUT'S STATUTORY SCHEME WITHOUT EXPLAINING WHY THE STATUTE
IMPAIRS A GENUINE CONSTITUTIONAL INTEREST TRULY WORTHY OF THE STANDARD
OF CLOSE JUDICIAL SCRUTINY.  THE REAL ISSUE HERE IS NOT WHETHER HOLES
CAN BE PICKED IN THE CONNECTICUT SCHEME; OF COURSE, THAT IS READILY
DONE WITH THIS "BAD" STATUTE.  WHETHER WE DEAL WITH STATUTES OF
CONNECTICUT OR OF CONGRESS, WE CAN FIND FLAWS, GAPS, AND HARD AND
UNSEEMLY RESULTS AT TIMES.  BUT OUR FUNCTION IN CONSTITUTIONAL
ADJUDICATION IS NOT TO SEE WHETHER THERE IS SOME CONCEIVABLY "LESS
RESTRICTIVE" ALTERNATIVE TO THE STATUTORY CLASSIFICATIONS UNDER
REVIEW.  THE COURT'S TASK IS TO EXPLAIN WHY THE "STRICT SCRUTINY" TEST,
PREVIOUSLY CONFINED TO OTHER AREAS, SHOULD NOW IN PRACTICAL EFFECT BE
READ INTO THE DUE PROCESS CLAUSE.  THE DRIFT OF STANELY V. ILLINOIS,
405 U.S. 645 (1972), ON WHICH THE COURT RELIES HEAVILY, WAS TO APPLY A
SIMILAR TEST, BUT AT LEAST THERE THE COURT ESSAYED TO EXPLAINED THAT
THE RIGHTS OF FATHERHOOD AND FAMILY WERE REGARDED AS "'ESSENTIAL'" AND
"'BASIC CIVIL RIGHTS OF MAN,'" 405 U.S., AT 651, AND TO PROVIDE AN
ANALYTIC BASIS FOR THE RESULT REACHED.  TO THE SAME EFFECT WAS BELL V.
BURSON, 402 U.S. 535 (1971), WHERE THE COURT NOTED THAT REVOCATION OF A
DRIVER'S LICENSE MIGHT IMPAIR THE PURSUIT OF A LIVELIHOOD, THEREBY
INFRINGING "IMPORTANT INTERESTS OF THE LICENSEES."  402 U.S., AT 539. 
CARRINGTON V. RASH, 380 U.S. 89 (1965), AN EQUAL PROTECTION CASE,
INVOLVED DEPRIVATION OF THE RIGHT TO VOTE, BY THE COURT'S, AND MR.
JUSTICE STEWART'S OWN DESCRIPTION, A MATTER "CLOSE TO THE CORE OF OUR
CONSTITUTIONAL SYSTEM."  ID., AT 96.  /1/ 

THERE WILL BE, I FEAR, SOME GROUND FOR A BELIEF THAT THE COURT NOW
ENGRAFTS THE "CLOSE JUDICIAL SCRUTINY" TEST ONTO THE DUE PROCESS CLAUSE
WHENEVER WE DEAL WITH SOMETHING LIKE "PERMANENT IRREBUTTABLE
PRESUMPTIONS."  BUT LITERALLY THOUSANDS OF STATE STATUTES CREATE
CLASSIFICATIONS PERMANENT IN DURATION, WHICH ARE LESS THAN PERFECT, AS
ALL LEGISLATIVE CLASSIFICATIONS ARE, AND MIGHT BE IMPROVED ON BY
INDIVIDUALIZED DETERMINATIONS SO AS TO AVOID THE UNTOWARD RESULTS
PRODUCED HERE DUE TO THE VERY UNUSUAL FACTS OF THIS CASE.  BOTH THE
ANOMALY PRESENT HERE AND THE ARGUABLE ALTERNATIVES TO IT DO NOT DIFFER
FROM THOSE PRESENT WHEN, FOR EXAMPLE, A STATE PROVIDES THAT A PERSON
MAY NOT BE LICENSED TO PRACTICE MEDICINE OR LAW UNLESS HE OR SHE IS A
GRADUATE OF AN ACCREDITED PROFESSIONAL GRADUATE SCHOOL; A PERFECTLY
CAPABLE PRACTITIONER MAY AS A CONSEQUENCE BE BARRED "PERMANENTLY AND
IRREBUTTABLY" FROM PURSUING HIS CALLING, WITHOUT EVER HAVING AN
OPPORTUNITY TO PROVE HIS PERSONAL SKILLS.  THE DOCTRINAL DIFFICULTIES
OF THE EQUAL PROTECTION CLAUSE ARE INDEED TRYING, BUT TODAY THE COURT
MAKES AN UNCHARTED DRIFT TOWARD COMPLICATIONS FOR THE DUE PROCESS
CLAUSE COMPARABLE IN SCOPE AND SERIOUSNESS WITH THOSE WE ARE
ENCOUNTERING IN THE EQUAL PROTECTION AREA.  CAN THIS BE WHAT WE ARE
HEADED FOR? 

THE PRESSURE OF TODAY'S HOLDING MAY WELL PUSH THE STATES TO ENACT
RECIPROCAL STATUTES TO THE END THAT CONNECTICUT WILL UNDERTAKE TO ADMIT
AS "RESIDENT" STUDENTS ONLY THOSE STUDENTS FROM OTHER STATES THAT GIVE
THE SAME STATUS TO CONNECTICUT RESIDENTS.  WHEN A STATE ALLOCATES A
LARGE SHARE OF ITS RESOURCES TO CREATE AND MAINTAIN A UNIVERSITY WHOSE
QUALITY IS FOUND ATTRACTIVE TO MANY STUDENTS FROM OTHER STATES, ITS
VERY SUCCESS AND STATURE MAY WELL OPERATE TO CRIPPLE IT BECAUSE THEN,
NOT UNNATURALLY, IT WILL BE FLOODED WITH APPLICATIONS FROM STUDENTS
FROM AFAR.  PERHAPS ON LESS "HIGH GROUND" STUDENTS WHO FAVOR WINTER
SPORTS WILL FLOCK TO THE NORTHEAST AND NORTHWEST AND THE SUN WORSHIPERS
WILL HEAD SOUTH.  IS THE COURT WILLING TO SAY THAT CONNECTICUT MAY NOT
GRANT PARTIAL SCHOLARSHIPS TO PERSONS WHO HAVE ATTENDED A CONNECTICUT
SECONDARY SCHOOL FOR -- LET US SAY -- AT LEAST ONE FULL SCHOOL YEAR AND
THEN SET NONRESIDENT TUITION AS IT DOES NOW?  WE SHOULD NOT BE
SURPRISED AT THE NATURAL RESPONSE OF STATES WHICH, HAVING PLACED HIGH
VALUE ON UNIVERSITIES, HAVING DEVELOPED GREAT INSTITUTIONS AT LARGE
COST, BELIEVE THAT OTHER STATES SHOULD DO THE SAME AND THEREFORE SEEK
WAYS TO KEEP THE INSTITUTION IN BEING FOR ITS OWN CITIZENS.  I DO NOT
SUGGEST THESE THINGS OUGHT TO BE DONE OR THAT THEY ARE DESIRABLE;
RATHER, I SUBMIT, WHEN WE EXAMINE A STATUTE OF A STATE WE SHOULD LAY
ASIDE PREFERENCES FOR OR AGAINST WHAT THE STATE DOES IN A FEW
PARTICULAR OR ISOLATED CASES AND LOOK ONLY TO WHAT THE CONSTITUTION
FORBIDS A STATE TO DO, SO AS TO AVOID PUTTING PRESSURE ON THE STATES TO
ENGAGE IN LEGISLATIVE DEVICES TO ESCAPE FROM THE HOBBLES WE PLACE ON
THEM ON MATTERS OF PURELY STATE CONCERN. 

THE URGE TO CURE EVERY DISADVANTAGE HUMAN BEINGS CAN EXPERIENCE
EXERTS AN INEXORABLE PRESSURE TO EXPAND JUDICIAL DOCTRINE.  BUT THAT
URGE SHOULD NOT MOVE THE COURT TO ERECT STANDARDS THAT ARE UNREALISTIC
AND INDEED UNEXPLAINED FOR EVALUATING THE CONSTITUTIONALITY OF STATE
STATUTES. 

[[DFN 

/1/  IMPLICIT IN MY DISSENTING VOTE, OF COURSE, IS MY DISAGREEMENT
WITH MR. JUSTICE WHITE'S SUGGESTION THAT THE "WEIGHT AND VALUE" OF THE
APPELLEES' INTEREST IN OBTAINING A HIGHER EDUCATION REQUIRE US TO PAY
SOMETHING LESS THAN THE USUAL DEFERENCE TO THE JUDGMENT OF THE
CONNECTICUT LEGISLATURE.  IF APPELLEES' CHANCES OF SECURING HIGHER
EDUCATION WERE TRULY IN JEOPARDY AS A RESULT OF THE TUITION
DIFFERENTIAL AT ISSUE HERE, THERE WOULD AT LEAST BE AN ARGUABLE BASIS
FOR SPECIAL CONCERN, THOUGH FOR ME THE SAN ANTONIO CASE WOULD PROVIDE A
SERIOUS OBSTACLE TO ANY DEPARTURE FROM THE TRADITIONAL "RATIONAL BASIS"
TEST.  IN THIS CASE, THERE IS, IN ANY EVENT, NO ALLEGATION BY EITHER
APPELLEE THAT THE HIGHER OUT-OF-STATE TUITION CHARGE DOES, WILL, OR
EVEN MAY DEPRIVE HERE OF THE OPPORTUNITY TO ATTEND THE UNIVERSITY OF
CONNECTICUT.  THUS, TRY AS I MAY, I FIND IT IMPOSSIBLE TO UNDERSTAND
WHY THE INTEREST OF APPELLEES AT ISSUE HERE AMOUNTS TO ANY MORE OR ANY
LESS THAN THE NUMBER OF DOLLARS THEY ARE REQUIRED TO PAY IN EXCESS OF
CONNECTICUT'S IN-STATE TUITION RATE.  THAT AMOUNT MAY BE "SUBSTANTIAL,"
BUT THE COURT HAS NEVER SUGGESTED THAT FINANCIAL IMPACT, PER SE,
REQUIRES ABANDONMENT OF THE "RATIONAL BASIS" TEST OF EQUAL PROTECTION
REVIEW AS MR. JUSTICE WHITE SUGGESTS.  INDEED, I HAD ALWAYS THOUGHT
THAT A SIMPLE FINANCIAL DEPRIVATION WAS THE CLASSIC CASE FOR JUDICIAL
DEFERENCE TO LEGISLATIVE CHOICES. 

[[DOP 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

THE COURT'S OPINION RELEGATES TO THE LIMBO OF UNCONSTITUTIONALITY A
CONNECTICUT LAW THAT REQUIRES HIGHER TUITION FROM THOSE WHO COME FROM
OUT OF STATE TO ATTEND ITS STATE UNIVERSITIES THAN FROM THOSE WHO COME
FROM WITHIN THE STATE.  THE OPINION ACCOMPLISHES THIS RESULT BY A
HIGHLY THEORECTICAL ANALYSIS THAT RELIES HEAVILY ON NOTIONS OF
SUBSTANTIVE DUE PROCESS THAT HAVE BEEN AUTHORITATIVELY REPUDIATED BY
SUBSEQUENT DECISIONS OF THE COURT.  BELIEVING AS I DO THAT THE
CONNECTICUT STATUTORY SCHEME IS A CONSTITUTIONALLY PERMISSIBLE MEANS OF
DEALING WITH AN INCREASINGLY ACUTE PROBLEM FACING STATE SYSTEMS OF
HIGHER EDUCATION, I DISSENT. 

THIS COUNTRY'S SYSTEM OF HIGHER EDUCATION PRESENTLY FACES A SERIOUS
CRISIS, PRODUCED IN PART BY ESCALATING COSTS OF FURNISHING EDUCATIONAL
SERVICES AND IN PART BY SHARPLY INCREASED DEMANDS FOR THOSE SERVICES. 
BECAUSE STATE SYSTEMS HAVE AVAILABLE TO THEM STATE FINANCIAL RESOURCES
THAT ARE NOT AVAILABLE TO PRIVATE INSTITUTIONS, THEY MAY FIND IT
RELATIVELY EASIER TO GRAPPLE WITH THE FINANCIAL ASPECT OF THIS CRISIS. 
BUT FOR THIS VERY REASON, STATES HAVE GENERALLY FELT THAT STATE
RESOURCES SHOULD BE DEVOTED, AT LEAST IN LARGE PART, TO THE EDUCATION
OF CHILDREN OF THE STATE'S OWN RESIDENTS, AND THAT THOSE WHO COME FROM
ELSEWHERE TO ATTEND A STATE UNIVERSITY SHOULD HAVE TO MAKE A MORE
SUBSTANTIAL CONTRIBUTION TOWARD THE FULL COSTS OF THE EDUCATION THEY
WOULD RECEIVE THAN THE ALL BUT NOMINAL TUITION REQUIRED OF THOSE WHO
COME FROM WITHIN THE STATE. 

ONE WAY TO ACCOMPLISH SUCH A DIFFERENTIATION WOULD BE TO MAKE THE
TUITION DIFFERENTIAL TURN ON WHETHER OR NOT THE STUDENT WAS A
"RESIDENT"  OR "NONRESIDENT" OF THE STATE AT THE TIME TUITION IS PAID. 
THE COURT, AT LEAST BY IMPLICATION, CONCEDES THAT SUCH A
DIFFERENTIATION WOULD VIOLATE NO COMMAND OF THE CONSTITUTION, BUT EVEN
A CASUAL EXAMINATION OF HOW SUCH A PLAN WOULD OPERATE INDICATES WHY IT
DID NOT COMMEND ITSELF TO THE CONNECTICUT LEGISLATURE.  THE VERY ACT OF
ENROLLING IN A CONNECTICUT UNIVERSITY WITH THE INTENTION OF COMPLETING
A PROGRAM OF STUDIES LEADING TO A DEGREE NECESSITATES THE PHYSICAL
PRESENCE OF THE STUDENT IN THE STATE OF CONNECTICUT.  ADDITIONAL
INDICIA OF RESIDENCY, BY WHICH THE COURT APPARENTLY SETS GREAT STORE --
OBTAINING A CONNECTICUT MOTOR VEHICLE REGISTRATION OR DRIVER'S LICENSE,
REGISTERING TO VOTE IN CONNECTICUT -- IMPOSE NO SIGNIFICANT BURDEN ON
THE OUT-OF-STATE STUDENT IN COMPARISON WITH THE THOUSANDS OF DOLLARS HE
WILL SAVE IN TUITION AND FEES DURING THE PURSUIT OF A FOUR-YEAR COURSE
IN UNDERGRADUATE STUDIES.  THUS, WHAT THE COURT CONCEDES TO THE STATES
IN THE WAY OF DISTINGUISHING BETWEEN RESIDENT AND NONRESIDENT STUDENTS,
WHILE PERHAPS A VALUABLE BIT OF AUTHORITY IN ISSUING FISHING AND
HUNTING LICENSES, IS ALL BUT USELESS IN MAKING STUDENTS WHO COME FROM
OUT OF STATE PAY EVEN A PORTION OF THEIR FAIR SHARE OF THE COST OF THE
EDUCATION THAT THEY SEEK TO RECEIVE IN CONNECTICUT STATE UNIVERSITIES. 

THE SYSTEM TO WHICH CONNECTICUT HAS TURNED IS ONE THAT LIMITS THE
VIRTUALLY COMPLETE SUBSIDY THAT IS AFFORDED TO THOSE WHO PAY IN-STATE
TUITION TO THOSE WHO RESIDED IN CONNECTICUT AT THE TIME OF APPLYING FOR
ADMISSION, AND WHOSE RESIDENCE IN CONNECTICUT DID NOT RESULT FROM THEIR
DESIRE TO ATTEND THE STATE UNIVERSITIES.  SOME SUCH PLAN MUST BE
DEVISED BY ANY STATE THAT WISHES TO DIFFERENTIATE BETWEEN THOSE WHO
HAVE PAID TAXES TO THE STATE OVER A PERIOD OF YEARS IN ORDER TO SUPPORT
THE UNIVERSITY, AND THOSE WHO HAVE SIMPLY COME TO THE STATE IN ORDER TO
ATTEND THE UNIVERSITY.  SINCE INSTITUTIONS OF HIGHER LEARNING ARE NOT
BUILT IN A YEAR OR IN A DECADE, SUCH A DISTINCTION STRIKES ME AS
ENTIRELY RATIONAL, AND I DO NOT UNDERSTAND THE COURT TO HOLD
OTHERWISE. 

UNDERSTANDABLY, ANY SUCH GENERAL PRINCIPLE WILL HAVE A NUMBER OF
SPECIFIC APPLICATIONS, AND JUST AS UNDERSTANDABLY A CAPABLE LAWYER WILL
BE ABLE TO FOCUS ON ONE OR MORE OF THESE SPECIFIC APPLICATIONS THAT
APPEAR TO DIVERGE FROM THE PRINCIPLE THAT THE STATE IS ATTEMPTING TO
ENFORCE.  THE COURT'S OPINION DEALS WITH THE SITUATION OF THE
PARTICULAR LITIGANTS HERE INVOLVED, DOUBTLESS CHOSEN WITH AN EYE TO
ILLUSTRATING THE CONNECTICUT SYSTEM AT ITS WORST, AND WITH STILL OTHER
HYPOTHETICAL EXAMPLES UPON WHICH IT EXPATIATES DURING THE COURSE OF ITS
OPINION.  BUT THE FACT THAT A GENERALLY VALID RULE MAY HAVE ROUGH EDGES
AROUND ITS PERIMETER DOES NOT MAKE IT UNCONSTITUTIONAL UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT: 

"(THE LAW NEED NOT BE IN EVERY RESPECT LOGICALLY CONSISTENT WITH ITS
AIMS TO BE CONSITUTIONAL.  IT IS ENOUGH THAT THERE IS AN EVIL AT HAND
FOR CORRECTION, AND THAT IT MIGHT BE THOUGHT THAT THE PARTICULAR
LEGISLATIVE MEASURE WAS A RATIONAL WAY TO CORRECT IT."  WILLIAMSON V.
LEE OPTICAL CO., 348 U.S. 483, 487 - 488 (1955). 

THROUGHOUT THE COURT'S OPINION ARE FOUND REFERENCES TO THE
"IRREBUTTABLE" PRESUMPTION AS TO RESIDENCY CREATED BY THE CONNECTICUT
STATUTES.  BUT A FAIR READING OF THESE LAWS INDICATES THAT CONNECTICUT
HAS NOT CHOSEN TO DEFINE ELIGIBILITY FOR A STATE-SUBSIDIZED EDUCATION
IN TERMS OF "RESIDENCY" AT THE MOMENT THAT THE APPLICANT SEEKS
ADMISSION TO THE UNIVERSITY SYSTEM, BUT INSTEAD HAS INSISTED THAT THE
APPLICANT HAVE SOME PRIOR CONNECTION WITH THE STATE OF CONNECTICUT
INDEPENDENT OF THE DESIRE TO ATTEND A STATE-SUPPORTED UNIVERSITY. 
THUS, IT WOULD NOT SATISFY CONNECTICUT'S GOALS IN SEEKING TO SUBSIDIZE
THE EDUCATION OF CONNECTICUT'S YOUNG PEOPLE IN CONNECTICUT STATE
UNIVERSITIES TO IMPOSE A CLASSIC RESIDENCY TEST AS OF THE MOMENT OF
ENTRY INTO THE SYSTEM OF HIGHER EDUCATION.  ALL STUDENTS, AND NOT ONLY
THOSE WITH SUBSTANTIAL CONNECTICUT CONNECTIONS, WILL BE PRESENT IN
CONNECTICUT ON THIS DATE, AND THOSE WHO HAVE BEEN ASTUTE ENOUGH TO
CONSULT COUNSEL WILL HAVE OBTAINED CONNECTICUT DRIVERS' LICENSES,
REGISTERED THEIR CARS IN CONNECTICUT, AND REGISTERED TO VOTE IN
CONNECTICUT. 

MEANINGFUL DIFFERENTIATION BETWEEN CHILDREN OF FAMILIES WHO HAVE
SUPPORTED THE STATE EDUCATIONAL SYSTEM BY PAYMENT OF TAXES TO THE STATE
OF CONNECTICUT, AND CHILDREN FROM FAMILIES WHO HAVE NOT DONE THIS,
WOULD BE IMPOSSIBLE IF THE TEST WERE RESIDENCY AS OF THE DATE OF
ADMISSION, OR THE DATE ON WHICH TUITION IS DUE, AT LEAST AS THE COURT
ENUNCIATES SUCH A TEST.  BUT THIS IS NOT WHAT CONNECTICUT TRIED TO DO,
AND, AS I READ THE COURT'S OPINION, CONNECTICUT IS NOT LIMITED TO THE
IMPOSITION OF SUCH AN EASILY CIRCUMVENTED TEST.  FOR THE COURT
REAFFIRMS STARNS V. MALKERSON, 326 F. SUPP. 234 (MINN. 1970), AFF'D,
401 U.S. 985 (1971), IN WHICH THE STATE OF MINNESOTA HAD BY REGULATION
PROVIDED THAT NO STUDENT COULD QUALIFY AS A RESIDENT FOR TUITION
PURPOSES UNLESS HE HAD BEEN A BONA FIDE DOMICILIARY OF THE STATE FOR AT
LEAST A YEAR IMMEDIATELY PRIOR THERETO.  A REGULATION SUCH AS
MINNESOTA'S ENABLES THE STATE PARTIALLY TO MAINTAIN THE DISTINCTION
THAT CONNECTICUT HAS SOUGHT TO PROTECT HERE.  THE COURT INDICATES THAT
THE CRITICAL DISTINCTION BETWEEN THE MINNESOTA REGULATION AND THE
CONNECTICUT STATUTE IS THAT THE MINNESOTA REGULATION OPERATED TO FIX
NONRESIDENCY ONLY FOR THE FIRST YEAR OF ATTENDANCE AT THE UNIVERSITY. 
BUT THIS SUPPOSED DISTINCTION MERELY HIGHLIGHTS THE ERROR IN THE
COURT'S APPROACH TO THIS ENTIRE PROBLEM.  MINNESOTA WAS NO MORE
CONCERNED DURING THE FIRST YEAR THAN IS CONNECTICUT WITH "RESIDENCY" AS
THAT TERM IS USED IN OTHER LEGAL CONTEXTS.  ONE WHO HAD HIS VEHICLE
LICENSED IN MINNESOTA, OBTAINED A MINNESOTA DRIVER'S LICENSE, AND
REGISTERED TO VOTE IN MINNESOTA COULD MAKE THE SAME ATTACK ON THE
"IRREBUTTABLE"  PRESUMPTION OF RESIDENCY INVOLVED IN STARNS AS THESE
RESPONDENTS DO ON THE CONNECTICUT STATUTE.  THE COURT'S RESPONSE IS
THAT WHILE MINNESOTA'S FIXING OF RESIDENCY AS OF A DATE PRIOR TO
APPLICATION ENDURED FOR ONLY ONE YEAR, CONNECTICUT'S ENDURES FOR FOUR
YEARS.  THIS IS ADMITTEDLY A FACTUAL DIFFERENCE, BUT ONE MAY READ THE
COURT'S OPINION IN VAIN TO ASCERTAIN WHY IT IS A DIFFERENCE OF
CONSTITUTIONAL SIGNIFICANCE. 

THE MAJORITY'S RELIANCE ON CASES SUCH AS HEINER V. DONNAN, 285 U.S.
312 (1932), HARKS BACK TO A DAY WHEN THE PRINCIPLES OF SUBSTANTIVE DUE
PROCESS HAD REACHED THEIR ZENITH IN THIS COURT.  LATER AND SOUNDER
CASES THOROUGHLY REPUDIATED THESE PRINCIPLES IN LARGE PART.  TEN YEARS
AGO, THE COURT REVIEWED THESE DOCTRINES IN FERGUSON V. SKRUPA, 372 U.S.
726, 730 (1963), AND MADE THE FOLLOWING OBSERVATION: 

     "THE DOCTRINE THAT PREVAILED IN LOCHNER, COPPAGE, ADKINS,

  BURNS, AND LIKE CASES -- THAT DUE PROCESS AUTHORIZES COURTS TO

  HOLD LAWS UNCONSTITUTIONAL WHEN THEY BELIEVE THE LEGISLATURE HAS

  ACTED UNWISELY -- HAS LONG SINCE BEEN DISCARDED.  WE HAVE

  RETURNED TO THE ORIGINAL CONSTITUTIONAL PROPOSITION THAT COURTS

  DO NOT SUBSTITUTE THEIR SOCIAL AND ECONOMIC BELIEFS FOR THE

  JUDGMENT OF LEGISLATIVE BODIES, WHO ARE ELECTED TO PASS LAWS.  AS

  THIS COURT STATED IN A UNANIMOUS OPINION IN 1941, 'WE ARE NOT

  CONCERNED . . . WITH THE WISDOM, NEED, OR APPROPRIATENESS OF THE

  LEGISLATION.'" 

THE COURT'S HIGHLY ABSTRACT AND THEORETICAL ANALYSIS OF THIS PRACTICAL
PROBLEM LEADS TO A CONCLUSION THAT IS CONTRARY TO THE TEACHING OF
FERGUSON, SUPRA. 

THE TYPICAL 18-YEAR-OLD ENTERING COLLEGE AS A FRESHMAN, DOUBTLESS
TYPIFYING THE LARGEST GROUP OF ENTERING STUDENTS IN CONNECTICUT AS
ELSEWHERE, HAS IN MOST CASES MADE LITTLE OR NO CONTRIBUTION BY WAY OF
TAX PAYMENT TO THE COST OF HIS PUBLIC HIGHER EDUCATION WHETHER IT BE IN
CONNECTICUT OR ELSEWHERE.  MORE LIKELY IT IS HIS PARENTS, THEMSELVES
LONG PAST COLLEGE AGE, WHO HAVE SUPPORTED THE STATE UNIVERSITIES OVER A
PERIOD OF YEARS WITH THE THOUGHT THAT THEY WOULD EVENTUALLY REALIZE
SOME RETURN FROM THIS INVOLUNTARY INVESTMENT IN THE FORM OF IN-STATE
TUITION FOR THEIR OWN CHILDREN WHO SOUGHT TO ATTEND A STATE
UNIVERSITY.  THE STATE OF CONNECTICUT HAS SOUGHT TO ALLOW THIS HOPE TO
BE REALIZED THROUGH THE DISTINCTION THAT IT HAS MADE BETWEEN THOSE WHO
ARE TO PAY NOMINAL TUITION AND THOSE WHO ARE TO PAY THE MORE
SUBSTANTIAL OUT-OF-STATE TUITION.  TO THE EXTENT THAT TODAY'S DECISION
REQUIRES STUDENTS WITH NO PREVIOUS CONNECTION WITH THE STATE OF
CONNECTICUT TO BE ADMITTED TO THAT STATE'S UNIVERSITY SYSTEM AS IN
STATE STUDENTS, UPON OBTAINING A DRIVER'S LICENSE AND REGISTERING TO
VOTE, IT MEANS THAT LONGTIME CONNECTICUT RESIDENTS WILL NOT ONLY
CONTINUE TO SUPPORT THE STATE UNIVERSITY SYSTEM, BUT THAT THEY WILL BE
REQUIRED TO SUPPORT IT IN INCREASED MEASURE IN ORDER TO HELP SUBSIDIZE
THE EDUCATION OF NONRESIDENTS.  THE COURT'S INVALIDATION OF THE
CONNECTICUT PLAN IS QUITE INCONSISTENT WITH DOCTRINES OF SUBSTANTIVE
DUE PROCESS THAT HAVE OBTAINED IN THIS COURT FOR A LEAST A DECADE, AND
TO WHICH I WOULD CONTINUE TO ADHERE. 

JOHN G. HILL, JR., ASSISTANT ATTORNEY GENERAL OF CONNECTICUT, ARGUED
THAT CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF WAS ROBERT K. KILLIAN,
ATTORNEY GENERAL. 

JOHN A. DZIAMBA ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS DOUGLAS M. CROCKETT.  LEONARD J. SCHWARTZ FILED A BRIEF FOR
THE AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC., AS AMICUS CURIAE
URGING AFFIRMANCE.     SLADE GORTON, ATTORNEY GENERAL, JAMES B. WILSON,
SENIOR ASSISTANT ATTORNEY GENERAL, AND GERALD L. COE, ASSISTANT
ATTORNEY GENERAL, FILED A BRIEF FOR THE STATE OF WASHINGTON AS AMICUS
CURIAE. 
..END :



















WARDIUS V. OREGON, 412 U.S. 470 


       CERTIORARI TO THE SUPREME COURT OF OREGON 

NO. 71 - 6042.  ARGUED JANUARY 10, 1973 -- DECIDED JUNE 11,

  1973; REVERSED AND REMANDED; SEE 6 ORE.  APP.  391, 487 P. 2D

  1380. 


    AT PETITIONER'S CRIMINAL TRIAL, A WITNESS' ALIBI EVIDENCE WAS

  STRUCK BY AS A SANCTION FOR PETITIONER'S FAILURE TO FILE A NOTICE

  OF ALIBI IN ACCORDANCE WITH OREGON'S SATUTORY REQUIREMENT, AND

  PETITIONER HIMSELF WAS NOT ALLOWED TO GIVE ALIBI TESTIMONY. 

  FOLLOWING PETITIONER'S CONVICTION THE APPELLATE COURT, AFFIRMING,

  REJECTED HIS CONSTITUTIONAL CHALLENGE TO THE STATE STATUTE, WHICH

  GRANTS NO DISCOVERY RIGHTS TO CRIMINAL DEFENDANTS.  HELD:

  RECIPROCAL DISCOVERY IS REQUIRED BY FUNDAMENTAL FAIRNESS AND IT

  IS INSUFFICIENT THAT ALTHOUGH THE STATUTE DOES NOT REQUIRE IT,

  THE STATE MIGHT GRANT RECIPROCAL DISCOVERY IN A GIVEN CASE.  IN

  THE ABSENCE OF FAIR NOTICE THAT PETITIONER WILL HAVE AN

  OPPORTUNITY TO DISCOVER THE STATE'S REBUTTAL WITNESSES,

  PETITIONER CANNOT, CONSISTENTLY WITH DUE PROCESS REQUIREMENTS, BE

  REQUIRED TO REVEAL HIS ALIBI DEFENSE.  PP. 473 - 479. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BURGER,
C. J., CONCURRED IN THE RESULT.  DOUGLAS, J., FILED AN OPINION
CONCURRING IN THE RESULT, POST, P. 479. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

[[HC471'(ORIGINAL DOCUMENT PAGE 471)' 

THIS CASE INVOLVES IMPORTANT QUESTIONS CONCERNING THE RIGHT OF A
DEFENDANT FORCED TO COMPLY WITH A "NOTICE-OF-ALIBI" RULE TO RECIPROCAL
DISCOVERY. 

IN WILLIAMS V. FLORIDA, 399 U.S. 78 (1970), WE UPHELD THE
CONSITUTIONALITY OF FLORIDA'S NOTICE-OF-ALIBI RULE WHICH REQUIRED
CRIMINAL DEFNDANTS INTENDING TO RELY ON AN ALIBI DEFENSE TO NOTIFY THE
PROSECTUION OF THE PLACE AT WHICH THEY CLAIMED TO BE AT THE TIME IN
QUESTION, AND OF THE NAMES AND ADDRESSES OF WITNESSES THEY INTENDED TO
CALL IN SUPPORT OF THE ALIBI.  /1/ IN SO HOLDING, HOWEVER, WE
EMPHASIZED THAT THE CONSTITUTIONALITY OF SUCH RULES MIGHT DEPEND ON
"WHETHER THE DEFENDANT ENJOYS RECIPROCAL DISCOVERY AGAINST THE STATE." 
ID., AT 82 N. 11.  /2/ 

IN THE CASE PRESENTLY BEFORE US, OREGON PREVENTED A CRIMINAL
DEFENDANT FROM INTRODUCING ANY EVIDENCE TO SUPPORT HIS ALIBI DEFENSE AS
A SANCTION FOR HIS FAILURE TO COMPLY WITH A NOTICE-OF-ALIBI RULE WHICH,
ON ITS FACE, MADE NO PROVISION FOR RECIPROCAL DISCOVERY. 

[[HC472'(ORIGINAL DOCUMENT PAGE 472)'  THE CASE THUS SQUARELY
PRESENTS THE QUESTION LEFT OPEN IN WILLIAMS, AND WE GRANTED CERTIORARI
SO THAT THIS QUESTION COULD BE RESOLVED.  406 U.S. 957 (1972). 

WE HOLD THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
FORBIDS ENFORCEMENT OF ALIBI RULES UNLESS RECIPROCAL DISCOVERY RIGHTS
ARE GIVEN TO CRIMINAL DEFENDANTS.  SINCE THE OREGON STATUTE DID NOT
PROVIDE FOR RECIPROCAL DISCOVERY, IT WAS ERROR FOR THE COURT BELOW TO
ENFORCE IT AGAINST PETITIONER, AND HIS CONVICTION MUST BE REVERSED. 
/4/

        I 

ON MAY 22, 1970, PETITIONER WAS INDICTED UNDER ORE.  REV.  STAT. ^
474.020 FOR UNLAWFUL SALE OF NARCOTICS.  THE SALE ALLEGEDLY OCCURRED
THE PREVIOUS DAY.  AT TRIAL, AFTER THE STATE HAD CONCLUDED ITS CASE,
PETITIONER CALLED ONE COLLEEN MCFADDEN WHO TESTIFIED THAT ON THE NIGHT
IN QUESTION, SHE HAD BEEN WITH PETITIONER AT A DRIVE-IN MOVIE. 

[[HC473'(ORIGINAL DOCUMENT PAGE 473)'  THE PROSECUTOR THEREUPON
BROUGHT TO THE JUDGE'S ATTENTION PETITIONER'S FAILURE TO FILE A NOTICE
OF ALIBI, AND AFTER HEARING ARGUMENT THE TRIAL JUDGE GRANTED THE
STATE'S MOTION TO STRIKE MCFADDEN'S TESTIMONY BECAUSE OF THIS FAILURE. 
PETITIONER HIMSELF THEN TOOK THE STAND AND ATTEMPTED TO TESTIFY THAT HE
WAS AT THE DRIVE-IN WITH MCFADDEN AT THE TIME WHEN THE STATE ALLEGED
THE SALE OCCURRED.  ONCE AGAIN, HOWEVER, THE STATE OBJECTED AND THE
TRIAL JUDGE AGAIN REFUSED TO PERMIT THE EVIDENCE. 

PETITIONER WAS CONVICTED AS CHARGED AND SENTENCED TO 18 MONTHS'
IMPRISONMENT.  ON APPEAL, THE OREGON COURT OF APPEALS REJECTED
PETITIONER'S CONTENTIONS THAT THE OREGON STATUTE WAS UNCONSTITUTIONAL
IN THE ABSENCE OF RECIPROCAL DISCOVERY RIGHTS AND THAT THE EXCLUSION
SANCTION ABRIDGED HIS RIGHT TO TESTIFY IN HIS OWN BEHALF AND HIS RIGHT
TO COMPULSORY PROCESS.  6 ORE.  APP.  391, 487 P.2D 1380 (1971).  IN AN
UNREPORTED ORDER, THE OREGON SUPREME COURT DENIED PETITIONER'S PETITION
TO REVIEW.  SEE APP. 21. 

        II 

NOTICE-OF-ALIBI RULES, NOW IN USE IN A LARGE AND GROWING NUMBER OF
STATES, /5/  ARE BASED ON THE PROPOSITION THAT THE ENDS OF JUSTICE WILL
BEST BE SERVED BY A SYSTEM OF LIBERAL DISCOVERY WHICH GIVES BOTH
PARTIES THE MAXIMUM POSSIBLE AMOUNT OF INFORMATION WITH WHICH TO
PREPARE THEIR CASES AND THEREBY REDUCES THE POSSIBILITY OF SURPRISE AT
TRIAL.  SEE, E. G., BRENNAN, THE CRIMINAL PROSECTUION:  SPORTING EVENT
OR QUEST FOR TRUTH?, 1963 WASH. U. L. Q. 279; AMERICAN BAR ASSOCIATION
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, DISCOVERY AND PROCEDURE
BEFORE TRIAL 23 - 43 (APPROVED DRAFT 1970); GOLDSTEIN, THE STATE AND
THE ACCUSED:  BALANCE OF ADVANTAGE IN CRIMINAL PROCEDURE, 69 YALE L. J.
1149 (1960). 

[[HC474'(ORIGINAL DOCUMENT PAGE 474)'  THE GROWTH OF SUCH DISCOVERY
DEVICES IS A SALUTARY DEVELOPMENT WHICH, BY INCREASING THE EVIDENCE
AVAILABLE TO BOTH PARTIES, ENHANCES THE FAIRNESS OF THE ADVERSARY
SYSTEM.  AS WE RECOGNIZED IN WILLIAMS, NOTHING IN THE DUE PROCESS
CLAUSE PRECLUDES STATES FROM EXPERIMENTING WITH SYSTEMS OF BROAD
DISCOVERY DESIGNED TO ACHIEVE THESE GOALS.  "THE ADVERSARY SYSTEM OF
TRIAL IS HARDLY AN END IN ITSELF; IT IS NOT YET A POKER GAME IN WHICH
PLAYERS ENJOY AN ABSOLUTE RIGHT ALWAYS TO CONCEAL THEIR CARDS UNTIL
PLAYED.  WE FIND AMPLE ROOM IN THAT SYSTEM, AT LEAST AS FAR AS 'DUE
PROCESS' IS CONCERNED, FOR (A RULE) WHICH IS DESIGNED TO ENHANCE THE
SEARCH FOR TRUTH IN THE CRIMINAL TRIAL BY INSURING BOTH THE DEFENDANT
AND THE STATE AMPLE OPPORTUNITY TO INVESTIGATE CERTAIN FACTS CRUCIAL TO
THE DETERMINATION OF GUILT OR INNOCENCE."  399 U.S., AT 82 (FOOTNOTE
OMITTED). 

ALTHOUGH THE DUE PROCESS CLAUSE HAS LITTLE TO SAY REGARDING THE
AMOUNT OF DISCOVERY WHICH THE PARTIES MUST BE AFFORDED, BUT CF. BRADY
V. MARYLAND, 373 U.S. 83 (1963), IT DOES SPEAK TO THE BALANCE OF FORCES
BETWEEN THE ACCUSED AND HIS ACCUSER.  CF. IN RE WINSHIP, 397 U.S. 358,
361 - 364 (1970).  /6/  THE WILLIAMS COURT WAS THEREFORE CAREFUL TO
NOTE THAT "FLORIDA LAW PROVIDES FOR LIBERAL DISCOVERY BY THE DEFENDANT
AGAINST THE STATE, AND THE NOTICE-OF-ALIBI RULE IS ITSELF CAREFULLY
HEDGED WITH RECIPROCAL DUTIES REQUIRING STATE DISCLOSURE TO THE
DEFENDANT."  399 U.S., AT 81 (FOOTNOTE OMMITTED). 

[[HC475'(ORIGINAL DOCUMENT PAGE 475)'  THE SAME CANNOT BE SAID OF
OREGON LAW.  AS THE STATE CONCEDED AT ORAL ARGUMENT, SEE TR. OF ORAL
ARG. 19, OREGON GRANTS NO DISCOVERY RIGHTS TO CRIMINAL DEFENDANTS, AND,
INDEED, DOES NOT EVEN PROVIDE DEFENDANTS WITH BILLS OF PARTICULARS. 
/7/  MORE SIGNIFICANTLY, OREGON, UNLIKE FLORIDA, HAS NO PROVISION WHICH
REQUIRES THE STATE TO REVEAL THE NAMES AND ADDRESSES OF WITNESSES IT
PLANS TO USE TO REFUTE AN ALIBI DEFENSE.  /8/ 

WE DO NOT SUGGEST THAT THE DUE PROCESS CLAUSE OF ITS OWN FORCE
REQUIRES OREGON TO ADOPT SUCH PROVISIONS.  CF. UNITED STATES V.
AUGENBLICK, 393 U.S. 348 (1969); CICENIA V. LAGAY, 357 U.S. 504
(1958).  BUT WE DO HOLD THAT IN THE ABSENCE OF A STRONG SHOWING OF
STATE INTERESTS TO THE CONTRARY, DISCOVERY MUST BE A TWO-WAY STREET. 
THE STATE MAY NOT INSIST THAT TRIALS BE RUN AS A "SEARCH FOR TRUTH" SO
FAR AS DEFENSE WITNESSES ARE CONCERNED, WHILE MAINTAINING "POKER GAME"
SECRECY FOR ITS OWN WITNESSES.  /9/  IT IS FUNDAMENTALLY UNFAIR TO
REQUIRE A DEFENDANT TO DIVULGE THE DETAILS OF HIS OWN CASE WHILE AT THE
SAME TIME SUBJECTING HIM TO THE HAZARD OF SURPRISE CONCERNING
REFUTATION OF THE VERY PIECES OF EVIDENCE WHICH HE DISCLOSED TO THE
STATE. 

[[HC476'(ORIGINAL DOCUMENT PAGE 476)' 

INDEED, NEITHER THE RESPONDENT NOR THE OREGON COURT OF APPEALS
CONTESTS THESE PRINCIPLES.  NOR DOES THE STATE SUGGEST ANY SIGNIFICANT
GOVERNMENTAL INTERESTS WHICH MIGHT SUPPORT THE LACK OF RECIPROCITY. 
INSTEAD, RESPONDENT HAS CHOSEN TO REST ITS CASE ON A PROCEDURAL POINT. 
WHILE CONCEDING THAT OREGON LAW FAILS TO PROVIDE FOR RECIPROCAL
DISCOVERY ON ITS FACE, THE STATE CONTENDS THAT IF PETITIONER HAD GIVEN
NOTICE OF HIS ALIBI DEFENSE, THE STATE COURTS MIGHT HAVE READ THE
OREGON STATUTE AS REQUIRING THE STATE TO GIVE THE PETITIONER THE NAMES
AND ADDRESSES OF STATE WITNESSES USED TO REFUTE THE ALIBI DEFENSE. 
SINCE PETITIONER FAILED TO GIVE NOTICE, HIS ALIBI DEFENSE WAS NOT
PERMITTED AND THERE WERE, THEREFORE, NO STATE REBUTTAL WITNESSES WHOSE
TESTIMONY TENDED TO DISPROVE THE ALIBI.  SINCE NO SUCH TESTIMONY WAS
INTRODUCED, RESPONDENT ARGUES THAT OREGON'S WILLINGNESS TO PERMIT
RECIPROCAL DISCOVERY REMAINS UNTESTED. 

[[HC477'(ORIGINAL DOCUMENT PAGE 477)'  THE STATE SAYS, IN EFFECT,
THAT PETITIONER SHOULD NOT BE PERMITTED TO LITIGATE THE RECIPROCITY
ISSUE IN THE ABSTRACT IN FEDERAL COURT AFTER BYPASSING AN OPPORTUNITY
TO CONTEST THE ISSUE CONCRETELY BEFORE THE STATE JUDICIARY.  /10/ 

IT IS, OF COURSE, TRUE THAT THE OREGON COURTS ARE THE FINAL ARBITERS
OF THE STATE'S OWN LAW, AND WE CANNOT PREDICT WHAT THE STATE COURT
MIGHT HAVE DONE HAD IT BEEN FACED WITH A DEFENDANT WHO HAD GIVEN THE
REQUIRED NOTICE OF ALIBI AND THEN SOUGHT RECIPROCAL DISCOVERY RIGHTS. 
BUT IT IS THIS VERY LACK OF PREDICTABILITY WHICH ULTIMATELY DEFEATS THE
STATE'S ARGUMENT.  AT THE TIME PETITIONER WAS FORCED TO DECIDE WHETHER
OR NOT TO REVEAL HIS ALIBI DEFENSE TO THE PROSECUTION, HE HAD TO DEAL
WITH THE STATUTE AS WRITTEN WITH NO WAY OF KNOWING HOW IT MIGHT
SUBSEQUENTLY BE INTERPRETED.  NOR COULD HE RETRACT THE INFORMATION ONCE
PROVIDED SHOULD IT TURN OUT LATER THAT THE HOPED-FOR RECIPROCAL
DISCOVERY RIGHTS WERE NOT GRANTED. 

FOR THIS REASON, HAD PETITIONER CHALLENGED THE LACK OF RECIPROCITY
BY GIVING NOTICE AND THEN DEMANDING DISCOVERY, HE WOULD HAVE DONE SO AT
CONSIDERABLE RISK.  TO BE SURE, THE STATE COURT MIGHT HAVE CONSTRUED
THE OREGON STATUTES SO AS TO SAVE THE CONSTITUTIONALITY OF THE NOTICE
REQUIREMENT AND GRANTED RECIPROCAL DISCOVERY RIGHTS. 

[[HC478'(ORIGINAL DOCUMENT PAGE 478)'  BUT THE STATE COURT WOULD
ALSO HAVE HAD THE OPTION OF READING STATE LAW AS PRECLUDING RECIPROCAL
DISCOVERY.  IF THE COURT ADOPTED THIS LATTER ALTERNATIVE, IT WOULD HAVE
HAD TO STRIKE DOWN THE NOTICE-OF-ALIBI REQUIREMENT.  BUT PETITIONER
WOULD HAVE HAD ONLY A PYRRHIC VICTORY, SINCE ONCE HAVING GIVEN THE
STATE HIS ALIBI INFORMATION, HE COULD NOT HAVE RETRACTED IT.  THUS,
UNDER THIS SCENARIO, EVEN THOUGH THE NOTICE-OF-ALIBI RULE WOULD HAVE
BEEN INVALIDATED, THE STATE WOULD STILL HAVE HAD THE BENEFIT OF
NONRECIPROCAL DISCOVERY RIGHTS IN PETITIONER CASE -- THE VERY RESULT
WHICH PETITIONER WISHES TO AVOID BY CHALLENGING THE RULE. 

THE STATUTE AS WRITTEN DID NOT PROVIDE FOR RECIPROCAL DISCOVERY, AND
PETITIONER CANNOT BE FAULTED FOR TAKING THE LEGISLATURE AT ITS WORD. 
/11/  INDEED, EVEN AT THIS STAGE OF THE PROCEEDINGS, THE RESPONDENT HAS
MADE NO REPRESENTATION THAT THE STATE WOULD IN FACT PROVIDE RECIPROCAL
DISCOVERY RIGHTS TO A DEFENDANT WHO COMPLIED WITH THE NOTICE-OF-ALIBI
SCHEME.  RESPONDENT SAYS ONLY THAT THE STATE MIGHT HAVE GRANTED SUCH
RIGHTS.  /12/  BUT THE STATE CANNOT CONSTITUTIONALLY FORCE COMPLIANCE
WITH ITS SCHEME ON THE BASIS OF A TOTALLY UNSUBSTANTIATED POSSIBILITY
THAT THE STATUTE MIGHT BE READ IN A MANNER CONTRARY TO ITS PLAIN
LANGUAGE. 

[[HC479'(ORIGINAL DOCUMENT PAGE 479)'  THUS, IN THE ABSENCE OF FAIR
NOTICE THAT HE WOULD HAVE AN OPPORTUNITY TO DISCOVER THE STATE'S
REBUTTAL WITNESSES, PETITIONER CANNOT BE COMPELLED TO REVEAL HIS ALIBI
DEFENSE. 

SINCE THE TRIAL COURT ERRED AND SINCE THERE IS A SUBSTANTIAL
POSSIBILITY THAT ITS ERROR MAY HAVE INFECTED THE VERDICT, THE
CONVICTION MUST BE REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  THE REQUIREMENT WAS ATTACKED AS A VIOLATION OF THE DEFENDANT'S
DUE PROCESS RIGHT TO A FAIR TRIAL AND AN INVASION OF HIS PRIVILEGE
AGAINST SELF-INCRIMINATION.  BUT THE COURT FOUND THAT "(GIVEN THE EASE
WITH WHICH AN ALIBI CAN BE FABRICATED, THE STATE'S INTEREST IN
PROTECTING ITSELF AGAINST AN ELEVENTH-HOUR DEFENSE IS BOTH OBVIOUS AND
LEGITIMATE."  399 U.S., AT 81.  MOREOVER, WE HELD THAT "THE PRIVILEGE
AGAINST SELF-INCRIMINATION IS NOT VIOLATED BY A REQUIREMENT THAT THE
DEFENDANT GIVE NOTICE OF AN ALIBI DEFENSE AND DISCLOSE HIS ALIBI
WITNESSES."  ID., AT 83. 

/2/  THE FLORIDA RULE PROVIDED:  "'NOT LESS THAN FIVE DAYS AFTER
RECEIPT OF DEFENDANT'S WITNESS LIST, OR SUCH OTHER TIMES AS THE COURT
MAY DIRECT, THE PROSECUTING ATTORNEY SHALL FILE AND SERVE UPON THE
DEFENDANT THE NAMES AND ADDRESSES (AS PARTICULARLY AS ARE KNOWN TO THE
PROSECUTING ATTORNEY) OF THE WITNESSES THE STATE PROPOSES TO OFFER IN
REBUTTAL TO DISCREDIT THE DEFENDANT'S ALIBI AT THE TRIAL OF THE
CAUSE.'"  SEE 399 U.S., AT 104. 

/3/ ORE.  REV.  STAT. ^ 135.875 PROVIDES:  "(1) IF THE DEFENDANT IN
A CRIMINAL ACTION PROPOSES TO RELY IN ANY WAY ON ALIBI EVIDENCE, HE
SHALL, NOT LESS THAN FIVE DAYS BEFORE THE TRIAL OF THE CAUSE, FILE AND
SERVE UPON THE DISTRICT ATTORNEY A WRITTEN NOTICE OF HIS PURPOSE TO
OFFER SUCH EVIDENCE, WHICH NOTICE SHALL STATE SPECIFICALLY THE PLACE OR
PLACES WHERE THE DEFENDANT CLAIMS TO HAVE BEEN AT THE TIME OR TIMES OF
THE ALLEGED OFFENSE TOGETHER WITH THE NAME AND RESIDENCE OR BUSINESS
ADDRESS OF EACH WITNESS UPON WHOM THE DEFENDANT INTENDS TO RELY FOR
ALIBI EVIDENCE.  IF THE DEFENDANT FAILS TO FILE AND SERVE SUCH NOTICE,
HE SHALL NOT BE PERMITTED TO INTRODUCE ALIBI EVIDENCE AT THE TRIAL OF
THE CAUSE UNLESS THE COURT FOR GOOD CAUSE ORDERS OTHERWISE. 

"(2) AS USED IN THIS SECTION, 'ALIBI EVIDENCE' MEANS EVIDENCE THAT
THE DEFENDANT IN A CRIMINAL ACTION WAS, AT THE TIME OF COMMISSION OF
THE ALLEGED OFFENSE, AT A PLACE OTHER THAN THE PLACE WHERE SUCH OFFENSE
WAS COMMITTED." 

/4/  PETITIONER ALSO ARGUES THAT EVEN IF OREGON'S NOTICE-OF-ALIBI
RULE WERE VALID, IT COULD NOT BE ENFORCED BY EXCLUDING EITHER HIS OWN
TESTIMONY OR THE TESTIMONY OF SUPPORTING WITNESSES AT TRIAL.  BUT IN
LIGHT OF OUR HOLDING THAT OREGON'S RULE IS FACIALLY INVALID, WE EXPRESS
NO VIEW AS TO WHETHER A VALID RULE COULD BE SO ENFORCED.  CF. WILLIAMS
V. FLORIDA, SUPRA, AT 83 N. 14. 

/5/  SEE ID., AT 82 N. 11; NOTE, THE PRECLUSION SANCTION -- A
VIOLATION OF THE CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE, 81 YALE L.
J. 1342 N. 4 (1972).     /6/  THIS COURT HAS THEREFORE BEEN
PARTICULARLY SUSPICIOUS OF STATE TRIAL RULES WHICH PROVIDE
NONRECIPROCAL BENEFITS TO THE STATE WHEN THE LACK OF RECIPROCITY
INTERFERES WITH THE DEFENDANT'S ABILITY TO SECURE A FAIR TRIAL.  SEE,
E. G., WASHINGTON V. TEXAS, 388 U.S. 14, 22 (1967); GIDEON V.
WAINWRIGHT, 372 U.S. 335, 344 (1963).  CF. GOLDSTEIN, THE STATE AND THE
ACCUSED:  BALANCE OF ADVANTAGE IN CRIMINAL PROCEDURE, 69 YALE L. J.
1149, 1180 - 1192 (1960). 

/7/  AS THE OREGON COURT OF APPEALS HAS RECENTLY POINTED OUT,
"OREGON'S CRIMINAL CODE IS ALMOST COMPLETELY LACKING IN PRETRIAL
DISCOVERY PROCEDURES."  STATE V. KELSAW, -- ORE.  APP.  --, 502 P.2D
278, 280 - 281 (1972), PET. FOR CERT. PENDING, NO. 72 - 6012. 

/8/  THE ONLY DISCOVERY RIGHTS OREGON APPEARS TO PERMIT ARE THE
RIGHTS TO VIEW WRITTEN STATEMENTS MADE BY STATE WITNESSES AND BY THE
DEFENDANT, IN THE HANDS OF THE POLICE.  SEE STATE V. FOSTER, 242 ORE. 
101, 407 P.2D 901 (1965); ORE.  REV.  STAT. ^ 133.750; ^ 133.755.  CF.
STATE V. KELSAW, SUPRA. 

/9/  INDEED, THE STATE'S INHERENT INFORMATION-GATHERING ADVANTAGES
SUGGEST THAT IF THERE IS TO BE ANY IMBALANCE IN DISCOVERY RIGHTS, IT
SHOULD WORK IN THE DEFENDANT'S FAVOR.  AS ONE COMMENTATOR HAS NOTE: 

"BESIDES GREATER FINANCIAL AND STAFF RESOURCES WITH WHICH TO
INVESTIGATE AND SCIENTIFICIALLY ANALYZE EVIDENCE, THE PROSECUTOR HAS A
NUMBER OF TACTICAL ADVANTAGES.  FIRST, HE BEGINS HIS INVESTIGATION
SHORTLY AFTER THE CRIME HAS BEEN COMMITTED WHEN PHYSICAL EVIDENCE IS
MORE LIKELY TO BE FOUND AND WHEN WITNESSES ARE MORE APT TO REMEMBER
EVENTS.  ONLY AFTER THE PROSECUTOR HAS GATHERED SUFFICIENT EVIDENCE IS
THE DEFENDANT INFORMED OF THE CHARGES AGAINST HIM; BY THE TIME THE
DEFENDANT OR HIS ATTORNEY BEGINS ANY INVESTIGATION INTO THE FACTS OF
THE CASE, THE TRAIL IS NOT ONLY COLD, BUT A DILIGENT PROSECUTOR WILL
HAVE REMOVED MUCH OF THE EVIDENCE FROM THE FIELD.  IN ADDITION TO THE
ADVANTAGE OF TIMING, THE PROSECUTOR MAY COMPEL PEOPLE, INCLUDING THE
DEFENDANT, TO COOPERATE.  THE DEFENDANT MAY BE QUESTIONED WITHIN
LIMITS, AND IF ARRESTED HIS PERSON MAY BE SEARCHED.  HE MAY ALSO BE
COMPELLED TO PARTICIPATE IN VARIOUS NONTESTIMONIAL IDENTIFICATION
PROCEDURES.  THE PROSECUTOR MAY FORCE THIRD PERSONS TO COOPERATE
THROUGH THE USE OF GRAND JURIES AND MAY ISSUE SUBPOENAS REQUIRING
APPEARANCE BEFORE PROSECUTORIAL INVESTIGATORY BOARDS.  WITH PROBABLE
CAUSE THE POLICE MAY SEARCH PRIVATE AREAS AND SEIZE EVIDENCE AND MAY
TAP TELEPHONE CONVERSATIONS.  THEY MAY USE UNDERCOVER AGENTS AND HAVE
ACCESS TO VAST AMOUNT OF INFORMATION IN GOVERNMENT FILES.  FINALLY,
RESPECT FOR GOVERNMENT AUTHORITY WILL CAUSE MANY PEOPLE TO COOPERATE
WITH THE POLICE OR PROSECUTOR VOLUNTARILY WHEN THEY MIGHT NOT COOPERATE
WITH THE DEFENDANT."  NOTE, PROSECUTORIAL DISCOVERY UNDER PROPOSED RULE
16, 85 HARV. L. REV. 994, 1018 - 1019 (1972) (FOOTNOTES OMITTED). 

/10/  BEFORE THIS COURT, RESPONDENT PRESSES THE RELATED ARGUMENT
THAT PETITIONER FAILED TO OBJECT TO THE EXCLUSION OF HIS ALIBI
TESTIMONY AT TRIAL AND THAT HIS CONVICTION THEREFORE RESTS ON AN
INDEPENDENT STATE PROCEDURAL GROUND.  SEE BRIEF FOR RESPONDENT 5 N. 2. 
BUT, AS THE TRANSCRIPT MAKES CLEAR, THE ISSUE AROSE WHEN THE TRIAL
COURT SUSTAINED THE STATE'S OBJECTION TO INTRODUCTION OF THE ALIBI
TESTIMONY.  PETITIONER THEN PROCEEDED TO MAKE AN "OFFER OF PROOF" IN
ORDER TO PROTECT THE RECORD ON APPEAL.  RESPONDENT CITES US TO NO
OREGON CASES WHICH WOULD REQUIRE PETITIONER TO OBJECT TO THE SUSTAINING
OF AN OBJECTION IN THIS CONTEST, AND THE STATE APPELLATE COURT'S
WILLINGNESS TO TEACH THE MERITS OF PETITIONER'S FEDERAL CLAIMS PROVIDES
CONVINCING PROOF THAT THE JUDGMENT DOES NOT REST ON ADEQUATE STATE
GROUNDS.  SEE WARDEN V. HAYDEN, 387 U.S. 294, 297 N. 3 (1967). 

/11/  NOR DID PETITIONER'S ATTORNEY REST ENTIRELY ON HIS OWN READING
OF OREGON'S DISCOVERY PROVISIONS.  AS THE ATTORNEY ARGUED AT TRIAL, 

"SEVERAL WEEKS AGO THIS CAME UP AGAIN -- THIS CAME UP IN THE CIRCUIT
COURT HERE WITH JUDGE PERRY, AND JUDGE PERRY ALLOWED THE ALIBI
TESTIMONY IN BASED UPON (WILLIAMS V. FLORIDA) AND SAID THAT HE AT THAT
TIME, BASED ON OUR STATUTE AND BASED ON THIS OPINION, THAT HE DIDN'T
FEEL THAT OUR CRIMINAL CODE AND OUR STATUTE SHOULD ALLOW A SUBSTANTIVE
EVIDENCE (SIC) THAT THE DEFENDANT MIGHT HAVE TO BE KEPT OUT DUE TO
THIS, AND THAT IS THE REASON THAT NOTICE WAS NOT GIVEN.  I RELIED
SOMEWHAT UPON THAT AND MY OWN INTERPRETATION OF THIS CASE ALSO."  APP.
6. 

/12/  THE STATE CITES US TO STATE V. KELSAW, SUPRA, A RECENT OREGON
COURT OF APPEALS DECISION HOLDING THAT A DEFENDANT MUST BE GIVEN
RECIPROCAL INFORMATION AS TO THE TIME AND PLACE OF THE ALLEGED OFFENSE
BEFORE HE CAN BE REQUIRED TO COMPLY WITH THE NOTICE-OF-ALIBI RULE.  BUT
MERELY INFORMING THE DEFENDANT OF THE TIME AND PLACE OF THE CRIME DOES
NOT APPROACH THE SORT OF RECIPROCITY WHICH DUE PROCESS DEMANDS. 
MOREOVER, IN VIEW OF THE FACT THAT KELSAW WAS DECIDED AFTER
PETITIONER'S TRIAL, IT CANNOT BE SUGGESTED THAT THE DECISION GAVE HIM
NOTICE THAT EVEN THIS LIMITED RECIPROCITY WOULD BE GRANTED. 

[[DOP 

THE CHIEF JUSTICE CONCURS IN THE RESULT. 

[[DOP 

MR. JUSTICE DOUGLAS, CONCURRING IN THE RESULT. 

IN WILLIAMS V. FLORIDA, 399 U.S. 78, 106, I JOINED MR. JUSTICE BLACK
IN DISSENT FROM THAT PART OF THE COURT'S DECISION WHICH UPHELD THE
CONSTITUTIONALITY OF FLORIDA'S "NOTICE OF ALIBI" RULE, WE CONCLUDED
THAT THE DECISION WAS "A RADICAL AND DANGEROUS DEPARTURE FROM THE
HISTORICAL AND CONSTITUTIONALLY GUARANTEED RIGHT OF A DEFENDANT IN A
CRIMINAL CASE TO REMAIN COMPLETELY SILENT, REQUIRING THE STATE TO PROVE
ITS CASE WITHOUT ANY ASSISTANCE OF ANY KIND FROM THE DEFENDANT
HIMSELF."  ID., AT 108.  ONE NEED NOT GO FAR FOR THE TEXTUAL SUPPORT
FOR THIS POSITION.  THE FIFTH AMENDMENT, WRITTEN WITH THE INQUISITORIAL
PRACTICES OF THE STAR CHAMBER FIRMLY IN MIND, PROVIDES THAT "(NO PERSON
. . . SHALL BE COMPELLED . . . TO BE A WITNESS AGAINST HIMSELF."  IT
SEEMS DIFFICULT TO QUARREL WITH THE CONCLUSION THAT A "NOTICE OF ALIBI"
PROVISION CONTRAVENES THIS CLEAR MANDATE, FOR THE STATE WOULD SEE NO
NEED FOR THE RULE UNLESS IT BELIEVED THAT SUCH NOTICE WOULD EASE ITS
BURDEN OF PROVING ITS CASE OR INCREASE THE EFFICIENCY OF ITS BURDEN OF
PROVING ITS CASE OR INCREASE THE EFFICIENCY OF ITS PRESENTATION.  IN
EITHER CASE, THE DEFENDANT HAS BEEN COMPELLED TO AID THE STATE IN HIS
PROSECUTION. 

THE COURT VIEWS THE GROWTH OF "SUCH DISCOVERY DEVICES" AS A
"SALUTARY DEVELOPMENT" BECAUSE IT INCREASES THE EVIDENCE AVAILABLE TO
BOTH PARTIES.  ANTE, AT 474.  THIS DEVELOPMENT, HOWEVER, HAS ALTERED
THE BALANCE STRUCK BY THE CONSTITUTION.  THE BILL OF RIGHTS DOES NOT
ENVISION AN ADVERSARY PROCEEDING BETWEEN TWO EQUAL PARTIES.  IF THAT
WERE SO, WE MIGHT WELL BENEFIT FROM PROCEDURES PATTERNED AFTER THE
RULES OF THE MARQUIS OF QUEENSBERRY.  BUT, THE CONSTITUTION RECOGNIZED
THE AWESOME POWER OF INDICTMENT AND THE VIRTUALLY LIMITLESS RESOURCES
OF GOVERNMENT INVESTIGATORS.  MUCH OF THE BILL OF RIGHTS IS DESIGNED TO
REDRESS THE ADVANTAGE THAT INHERES IN A GOVERNMENT PROSECUTION.  IT IS
NOT FOR THE COURT TO CHANGE THAT BALANCE.  SEE WILLIAMS V. FLORIDA
SUPRA, AT 111 - 114 (BLACK, J., DISSENTING). 

I AGREE WITH THE COURT THAT PETITIONER'S CONVICTION MUST BE REVERSED,
BUT FOR THE REASONS STATED BY MR. JUSTICE BLACK IN HIS DISSENT IN
WILLIAMS.  TO REVERSE IT BECAUSE OF UNCERTAINTY AS TO THE PRESENCE OF
RECIPROCAL DISCOVERY IS NOT TO TAKE THE CONSTITUTION AS WRITTEN BUT TO
EMBELLISH IT IN THE MANNER OF THE OLD MASTERS OF SUBSTANTIVE DUE
PROCESS. 

J. MARVIN KUHN ARGUED THE CAUSE AND FILED A BRIEF FOR PEITIONER. 

W. MICHAEL GILLETTE, ASSISTANT ATTORNEY GENERAL OF OREGON, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEFS WERE LEE JOHNSON,
ATTORNEY GENERAL, JOHN W. OSBURN, SOLICITOR GENERAL, AND JOHN H.
CLOUGH, ASSISTANT ATTORNEY GENERAL.  JEROME B. FALK, JR., FILED A BRIEF
FOR VIRGIL JENKINS AS AMICUS CURIAE URGING REVERSAL. 
..END :




MATTZ V. ARNETT, DIRECTOR, DEPARTMENT OF FISH AND GAME, 412 U.S. 481 




       CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST

           APPELLATE DISTRICT 

     NO. 71 - 1182.  ARGUED MARCH 27 - 28, 1973 -- DECIDED JUNE 11,

  1973; 20 CAL. APP. 3D 729, 97 CAL. RPTR.  894, REVERSED AND

  REMANDED. 


    PETITIONER, A YUROK, OR KLAMATH RIVER INDIAN, INTERVENED IN A

  FORFEITURE PROCEEDING, SEEKING THE RETURN OF FIVE GILL NETS

  CONFISCATED BY A CALIFORNIA GAME WARDEN.  HE ALLEGED THAT THE

  NETS WERE SEIZED IN INDIAN COUNTRY, WITHIN THE MEANING OF 18

  U.S.C. ^ 1151, AND THAT THE STATE STATUTES PROHIBITING THEIR USE

  DID NOT APPLY TO HIM.  THE STATE TRIAL COURT FOUND THAT THE

  KLAMATH RIVER RESERVATION IN 1892 "FOR ALL PRACTICAL PURPOSES

  ALMOST IMMEDIATELY LOST ITS IDENTITY," AND CONCLUDED THAT THE

  AREA WAS NOT INDIAN COUNTRY.  THE STATE COURT OF APPEAL AFFIRMED,

HOLDING THAT SINCE THE AREA HAD BEEN OPENED FOR UNRESTRICTED

  HOMESTEAD ENTRY IN 1892, THE EARLIER RESERVATION STATUS OF THE

  LAND HAD TERMINATED.  INDIAN COUNTRY IS DEFINED BY ^ 1151 AS

  INCLUDING "ALL LAND WITHIN THE LIMITS OF ANY INDIAN RESERVATION

  UNDER THE JURISDICTION OF THE UNITED STATES GOVERNMENT,

  NOTWITHSTANDING THE ISSUANCE OF ANY PATENT."  THE KLAMATH RIVER

  RESERVATION WAS ESTABLISHED BY EXECUTIVE ORDER IN 1855 AND

  INCLUDED THE AREA IN QUESTION.  IN 1891 BY EXECUTIVE ORDER, THE

  KLAMATH RIVER RESERVATION WAS MADE PART OF THE HOOPA VALLEY

  RESERVATION.  THE ACT OF JUNE 17, 1892, PROVIDED THAT "ALL OF THE

  LANDS EMBRACED IN WHAT WAS KLAMATH RIVER RESERVATION" RESERVED

 UNDER THE 1855 EXECUTIVE ORDER, ARE "DECLARED TO BE SUBJECT TO

  SETTLEMENT, ENTRY, AND PURCHASE UNDER THE LAWS OF THE UNITED

  STATES GRANTING HOMESTEAD RIGHTS . . . PROVIDED, THAT ANY INDIAN

  NOW LOCATED UPON SAID RESERVATION MAY, AT ANY TIME WITHIN ONE

  YEAR . . . APPLY TO THE SECRETARY OF THE INTERIOR FOR AN

  ALLOTMENT OF LAND . . . AND THE SECRETARY OF THE INTERIOR MAY

  RESERVE FROM SETTLEMENT, ENTRY, OR PURCHASE ANY TRACT . . . UPON

  WHICH ANY VILLAGE OR SETTLEMENT OF INDIANS IS NOW LOCATED, AND

  MAY SET APART THE SAME FOR THE PERMANENT USE AND OCCUPATION OF

  SAID VILLAGE OR SETTLEMENT OF INDIANS."  THE ACT FURTHER PROVIDED

  THAT PROCEEDS FROM THE SALE OF THE LANDS "SHALL CONSTITUTE A FUND

  . . . FOR THE MAINTENANCE AND EDUCATION OF THE INDIANS NOW

  RESIDING ON SAID LANDS AND THEIR CHILDREN."  HELD:  THE KLAMATH

  RIVER RESERVATION WAS NOT TERMINATED BY THE ACT OF JUNE 17, 1892,

  AND THE LAND WITHIN THE RESERVATION BOUNDARIES IS STILL INDIAN

  COUNTRY, WITHIN THE MEANING OF 18 U.S.C. ^ 1151.  PP. 494 - 506. 

     (A) THE ALLOTMENT PROVISIONS OF THE 1892 ACT, RATHER THAN

  INDICATING AN INTENTION TO TERMINATE THE RESERVATION, ARE

COMPLETELY CONSISTENT WITH CONTINUED RESERVATION STATUS.  SEYMOUR

  V. SUPERINTENDENT, 368 U.S. 351.  PP. 496 - 497. 

    (B) THE REFERENCE IN THE ACT TO THE KLAMATH RIVER RESERVATION

  IN THE PAST TENSE DID NOT MANIFEST A CONGRESSIONAL PURPOSE TO

  TERMINATE THE RESERVATION, BUT WAS MERELY A CONVENIENT WAY OF

  IDENTIFYING THE LAND, WHICH HAD JUST RECENTLY BEEN INCLUDED IN

  THE HOOPA VALLEY RESERVATION.  PP. 498 - 499. 

     (C) THE ACT'S LEGISLATIVE HISTORY DOES NOT SUPPORT THE VIEW

  THAT THE RESERVATION WAS TERMINATED, BUT BY CONTRAST WITH THE

  FINAL ENACTMENT, IT COMPELS THE CONCLUSION THAT EFFORTS TO

  TERMINATE BY DENYING ALLOTMENTS TO THE INDIANS FAILED

  COMPLETELY.  PP. 499 - 504. 

     (D) A CONGRESSIONAL DETERMINATION TO TERMINATE A RESERVATION

  MUST BE EXPRESSED ON THE FACE OF THE STATUTE OR BE CLEAR FROM THE

  SURROUNDING CIRCUMSTANCES AND LEGISLATIVE HISTORY, NEITHER OF

  WHICH OBTAINED HERE.  PP. 504 - 505. 

     (E) THE CONCLUSION THAT THE 1892 ACT DID NOT TERMINATE THE

  RESERVATION IS REINFORCED BY REPEATED RECOGNITION THEREAFTER BY

  THE DEPARTMENT OF THE INTERIOR AND BY THE CONGRESS.  CONGRESS HAS

  RECOGNIZED THE RESERVATION'S CONTINUED EXISTENCE BY EXTENDING, IN

  1942, THE PERIOD OF TRUST ALLOTMENTS, AND IN 1958, BY RESTORING

  TO TRIBAL OWNERSHIP CERTAIN VACANT AND UNDISPOSED-OF CEDED LANDS

 IN THE RESERVATION.  P. 505. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

[[HC483'(ORIGINAL DOCUMENT PAGE 483)' 

OUR DECISION IN THIS CASE TURNS ON THE RESOLUTION OF THE NARROW
QUESTION WHETHER THE KLAMATH RIVER INDIAN RESERVATION IN NORTHERN
CALIFORNIA WAS TERMINATED BY ACT OF CONGRESS OR WHETHER IT REMAINS
"INDIAN COUNTRY," WITHIN THE MEANING OF 18 U.S.C. ^ 1151.  /1/  WHEN
ESTABLISHED, THE RESERVATION WAS DESCRIBED AS "A STRIP OF TERRITORY
COMMENCING AT THE PACIFIC OCEAN AND EXTENDING 1 MILE IN WIDTH ON EACH
SIDE OF THE KLAMATH RIVER" FOR A DISTANCE OF APPROXIMATELY 20 MILES,
ENCOMPASSING AN AREA NOT EXCEEDING 25,000 ACRES. 

[[HC484'(ORIGINAL DOCUMENT PAGE 484)'  THIS DESCRIPTION IS TAKEN
FROM PRESIDENT FRANKLIN PIERCE'S EXECUTIVE ORDER ISSUED NOVEMBER 16,
1855, PURSUANT TO THE AUTHORITY GRANTED BY THE ACT OF MARCH 3, 1853, 10
STAT. 226, 238, AND THE ACT OF MARCH 3, 1855, 10 STAT. 686, 699.  /2/ 

PETITIONER RAYMOND MATTZ IS A YUROK, OR KLAMATH RIVER, INDIAN WHO,
SINCE THE AGE OF NINE, REGULARLY FISHED, AS HIS GRANDFATHER DID BEFORE
HIM, WITH DIP, GILL, AND TRIGGER NETS, AT A LOCATION CALLED BROOKS
RIFFLE ON THE KLAMATH RIVER.  ON SEPTEMBER 24, 1969, A CALIFORNIA GAME
WARDEN CONFISCATED FIVE GILL NETS OWNED BY MATTZ.  THE NETS WERE STORED
NEAR BROOKS RIFFLE, APPROXIMATELY 200 FEET FROM THE RIVER, AND WITHIN
20 MILES OF THE RIVER'S MOUTH. 

THE RESPONDENT DIRECTOR OF THE DEPARTMENT OF FISH AND GAME
INSTITUTED A FORFEITURE PROCEEDING IN STATE COURT.  MATTZ INTERVENED
AND ASKED FOR THE RETURN OF HIS NETS.  HE ALLEGED, AMONG OTHER THINGS,
THAT HE WAS AN ENROLLED MEMBER OF THE YUROK TRIBE, THAT THE NETS WERE
SEIZED WITHIN INDIAN COUNTRY, AND THAT THE STATE STATUTES PROHIBITING
THE USE OF GILL NETS, CAL. FISH & GAME CODE ^^ 8664, 8686, AND 8630,
THEREFORE WERE INAPPLICABLE TO HIM.  THE STATE TRIAL COURT, RELYING ON
ELSER V. GILL NET NUMBER ONE, 246 CAL. APP. 2D 30, 54 CAL. RPTR.  568
(1966), FOUND THAT THE KLAMATH RIVER RESERVATION IN 1892 "FOR ALL
PRACTICAL PURPOSES ALMOST IMMEDIATELY LOST ITS IDENTITY,"  /3/  AND
CONCLUDED THAT THE AREA WHERE THE NETS WERE SEIZED WAS NOT INDIAN
COUNTRY. 

[[HC485'(ORIGINAL DOCUMENT PAGE 485)'  THE COURT THEREBY DISPOSED OF
PETITIONER'S PRIMARY DEFENSE TO THE FORFEITURE.  IT DID NOT REACH OTHER
ISSUES BEARING UPON THE APPLICATION OF THE CALIFORNIA STATUTES TO
INDIAN COUNTRY AND THE EXISTENCE OF INDIAN FISHING RIGHTS THERE. 

ON APPEAL, THE STATE COURT OF APPEAL AFFIRMED, HOLDING THAT,
INASMUCH AS THE AREA IN QUESTION HAD BEEN OPENED FOR UNRESTRICTED
HOMESTEAD ENTRY IN 1892, THE EARLIER RESERVATION STATUS OF THE LAND HAD
TERMINATED.  20 CAL. APP. 3D 729, 97 CAL. RPTR.  894 (1971).  THE
SUPREME COURT OF CALIFORNIA, ONE JUDGE DISSENTING, DENIED A PETITION
FOR HEARING.  SEE 20 CAL. APP. 3D, AT 735, 97 CAL. RPTR., AT 898.  WE
GRANTED CERTIORARI, 409 U.S. 1124 (1973), BECAUSE THE JUDGMENTS OF THE
STATE COURTS APPEARED TO BE IN CONFLICT WITH APPLICABLE DECISIONS OF
THE COURT. 

WE NOW REVERSE.  THE REVERSAL, OF COURSE, DOES NOT DISPOSE OF THE
UNDERLYING FORFEITURE ISSUE.  ON REMAND, THE QUESTIONS RELATING TO THE
EXISTENCE OF MATTZ' FISHING RIGHTS AND TO THE APPLICABILITY OF
CALIFORNIA LAW NOTWITHSTANDING RESERVATION STATUS WILL BE ADDRESSED. 
WE INTIMATE NO OPINION ON THOSE ISSUES. 

        I 

WHILE THE CURRENT RESERVATION STATUS OF THE KLAMATH RIVER
RESERVATION TURNS PRIMARILY UPON THE EFFECT OF AN 1892 ACT OF CONGRESS
WHICH OPENED THE RESERVATION LAND FOR SETTLEMENT, THE MEANING AND
EFFECT OF THAT ACT CANNOT BE DETERMINED WITHOUT SOME REFERENCE TO THE
YUROK TRIBE AND THE HISTORY OF THE RESERVATION BETWEEN 1855 AND 1892. 

THE YUROK INDIANS APPARENTLY RESIDED IN THE AREA OF THE LOWER
KLAMATH RIVER FOR A SUBSTANTIAL PERIOD BEFORE 1855 WHEN THE KLAMATH
RIVER RESERVATION WAS ESTABLISHED.  LITTLE IS KNOWN OF THEIR PRIOR
HISTORY.  THERE ARE SOURCES, HOWEVER, THAT PROVIDE US WITH RELATIVELY
DETAILED INFORMATION ABOUT THE TRIBE, ITS CULTURE, LIVING CONDITIONS,
AND CUSTOMS FOR THE PERIOD FOLLOWING 1955.  /4/ 

[[HC486'(ORIGINAL DOCUMENT PAGE 486)'  THAT THE TRIBE HAD INHABITED
THE LOWER KLAMATH RIVER WELL BEFORE 1855 IS SUGGESTED BY THE NAME. 
YUROK MEANS "DOWN THE RIVER."  THE NAMES OF THE NEIGHBORING TRIBES, THE
KAROK AND THE MODOK, MEAN, RESPECTIVELY, "UP THE RIVER" AND "HEAD OF
THE RIVER," AND THESE APPELLATIONS, AS WOULD BE EXPECTED, COINCIDE WITH
THE RESPECTIVE HOMELANDS.  POWERS 19; KROEBER 15.  /5/ 

BY THE ACT OF MARCH 3, 1853, 10 STAT. 238, THE PRESIDENT WAS
"AUTHORIZED TO MAKE FIVE MILITARY RESERVATIONS FROM THE PUBLIC DOMAIN
IN THE STATE OF CALIFORNIA OR THE TERRITORIES OF UTAH AND NEW MEXICO
BORDERING ON SAID STATE, FOR INDIAN PURPOSES." 

[[HC487'(ORIGINAL DOCUMENT PAGE 487)'  THE ACT OF MARCH 3, 1855, 10
STAT. 699, APPROPRIATED FUNDS FOR "COLLECTING, REMOVING, AND SUBSISTING
THE INDIANS OF CALIFORNIA . . . ON TWO ADDITIONAL MILITARY
RESERVATIONS, TO BE SELECTED AS HERETOFORE . . . PROVIDED, THAT THE
PRESIDENT MAY ENLARGE THE QUANTITY OF RESERVATIONS HERETOFORE SELECTED,
EQUAL TO THOSE HEREBY PROVIDED FOR."  PRESIDENT PIERCE THEN ISSUED HIS
ORDER OF NOVEMBER 16, 1855, SPECIFYING THE KLAMATH RIVER RESERVATION
AND STATING, "LET THE RESERVATION BE MADE, AS PROPOSED."  KAPPLER 817. 

THE SITE WAS IDEALLY SELECTED FOR THE YUROKS.  THEY HAD LIVED IN THE
AREA; THE ARABLE LAND, ALTHOUGH LIMITED, WAS "PECULIARLY ADAPTED TO THE
GROWTH OF VEGETABLES," 1856 REPORT 238; AND THE RIVER, WHICH RAN
THROUGH A CANYON ITS ENTIRE LENGTH, ABOUNDED IN SALMON AND OTHER FISH. 
IBID.; 1858 REPORT 286.  /6/ 

IN 1861 NEARLY ALL THE ARABLE LANDS ON THE KLAMATH RIVER RESERVATION
WERE DESTROYED BY A FRESHET, AND, UPON RECOMMENDATION OF THE LOCAL
INDIAN AGENT, SOME OF THE INDIANS WERE REMOVED TO THE SMITH RIVER
RESERVATION, ESTABLISHED FOR THAT PURPOSE IN 1862.  ONLY A SMALL NUMBER
OF YUROKS MOVED TO THE NEW RESERVATION, HOWEVER, AND NEARLY ALL THOSE
WHO DID MOVE RETURNED WITHIN A FEW YEARS TO THE KLAMATH RIVER. 

[[HC488'(ORIGINAL DOCUMENT PAGE 488)'  CRICHTON V. SHELTON, 33 I.D.
205, 208 (1904); KAPPLER 830; 1864 REPORT 122.  THE SMITH RIVER
RESERVATION WAS THEN DISCONTINUED.  ACT OF JULY 27, 1868, 15 STAT. 198,
221. 

THE TOTAL YUROK POPULATION ON THE KLAMATH RIVER RESERVATION IN THE
1860'S CANNOT BE STATED WITH PRECISION.  IN 1852, BASED IN PART ON A
ROUGH CENSUS MADE BY A TRADER, IT WAS ESTIMATED AT 2,500.  KROEBER 16 -
17.  /7/  THE EFFECT OF THE 1861 FLOOD CANNOT BE FIRMLY ESTABLISHED;
BUT IT IS CLEAR THAT THE TRIBE REMAINED ON THE KLAMATH THEREAFTER. 
/8/ 

[[HC489'(ORIGINAL DOCUMENT PAGE 489)'  FOR LATER YEARS, KROEBER
ESTIMATED THAT THE POPULATION IN 1895 WAS 900, AND, IN 1910, 668. 
KROEBER 19.  FROM THIS IT WOULD APPEAR THAT THE FLOOD AT LEAST DID NOT
CAUSE A DISSOLUTION OF THE TRIBE; ON THE CONTRARY, THE YUROKS CONTINUED
TO RESIDE IN THE AREA THROUGH THE TURN OF THE CENTURY AND BEYOND. 

THE ACT OF APRIL 8, 1864, 13 STAT. 39, DESIGNATED CALIFORNIA AS ONE
INDIAN SUPERINTENDENCY.  IT ALSO RECITED THAT "THERE SHALL BE SET APART
BY THE PRESIDENT, AND AT HIS DISCRETION, NOT EXCEEDING FOUR TRACTS OF
LAND, WITHIN THE LIMITS OF SAID STATE, TO BE RETAINED BY THE UNITED
STATES FOR THE PURPOSES OF INDIAN RESERVATIONS."  IT FURTHER PROVIDED
THAT "THE SEVERAL INDIAN RESERVATIONS IN CALIFORNIA WHICH SHALL NOT BE
RETAINED . . . UNDER . . . THIS ACT, SHALL . . . BE SURVEYED INTO LOTS
OR PARCELS . . . AND . . . BE OFFERED FOR SALE AT PUBLIC OUTCRY, AND
THENCE AFTERWARD SHALL BE HELD SUBJECT TO SALE AT PRIVATE ENTRY."  ID.,
AT 40. 

AT THE TIME OF THE PASSAGE OF THE 1864 ACT THERE WERE, APPARENTLY,
THREE RESERVATIONS IN CALIFORNIA:  THE KLAMATH RIVER, THE MENDOCINO,
AND THE SMITH RIVER.  IT APPEARS, ALSO, THAT THE PRESIDENT DID NOT TAKE
IMMEDIATE ACTION, UPON THE PASSAGE OF THE ACT, TO RECOGNIZE
RESERVATIONS IN CALIFORNIA. 

[[HC490'(ORIGINAL DOCUMENT PAGE 490)'  IT WAS NOT UNTIL 1868 THAT
ANY FORMAL RECOGNITION OCCURRED, AND THEN IT WAS THE CONGRESS, RATHER
THAN THE PRESIDENT, THAT ACTED.  IN THAT YEAR CONGRESS DISCONTINUED THE
SMITH RIVER RESERVATION, 15 STAT. 221, AND RESTORED THE MENDOCINO TO
THE PUBLIC LANDS.  ID., AT 223.  NO SIMILAR ACTION WAS TAKEN WITH
RESPECT TO THE KLAMATH RIVER RESERVATION.  CRICHTON V. SHELTON, 33
I.D., AT 209.  CONGRESS MADE APPROPRIATIONS FOR THE ROUND VALLEY
RESERVATION, 15 STAT. 221, AND FOR IT AND THE HOOPA VALLEY RESERVATION
IN 1869, 16 STAT. 37, ALTHOUGH NEITHER OF THESE, APPARENTLY, HAD BEEN
ESTABLISHED THERETOFORE BY FORMAL EXECUTIVE ORDER.  /9/ 

THE KLAMATH RIVER RESERVATION, ALTHOUGH NOT REESTABLISHED BY EXECUTIVE
ORDER OR SPECIFIC CONGRESSIONAL ACTION, CONTINUED, CERTAINLY, IN DE
FACTO EXISTENCE.  YUROKS REMAINED ON RESERVATION LAND, AND THE
DEPARTMENT OF INDIAN AFFAIRS REGARDED THE KLAMATH RIVER RESERVATION AS
"IN A STATE OF RESERVATION" THROUGHOUT THE PERIOD FROM 1864 TO 1891. 
/10/  NO STEPS WERE TAKEN TO SELL THE RESERVATION, OR PARTS THEREOF,
UNDER THE 1864 ACT.  INDEED, IN 1879, ALL TRESPASSERS THERE WERE
REMOVED BY THE MILITARY.  IN 1883 THE SECRETARY OF THE INTERIOR
DIRECTED THAT ALLOTMENTS OF LAND BE MADE TO THE INDIANS ON THE
RESERVATION.  /11/  IN FEBRUARY 1889, THE SENATE, BY RESOLUTION,
DIRECTED THE SECRETARY OF THE INTERIOR "TO INFORM THE SENATE WHAT
PROCEEDINGS, IF ANY, HAVE BEEN HAD IN HIS DEPARMENT RELATIVE TO THE
SURVEY AND SALE OF THE KLAMATH INDIAN RESERVATION . . . IN PURSUANCE OF
THE PROVISIONS OF THE ACT APPROVED APRIL 8, 1864. 

[[HC491'(ORIGINAL DOCUMENT PAGE 491)'  20 CONG. REC. 1818.  IN
RESPONSE, THE COMMISSIONER OF INDIAN AFFAIRS, BY LETTER DATED FEBRUARY
18, 1889, TO THE SECRETARY DISCLOSED THAT NO PROCEEDINGS TO THIS EFFECT
HAD BEEN UNDERTAKEN.  /12/  AN ASSISTANT ATTORNEY GENERAL FOR THE
DEPARTMENT OF THE INTERIOR EXPRESSED A SIMILAR VIEW IN AN OPINION DATED
JANUARY 20, 1891.  /13/ 

IN 1888, IN A FORFEITURE SUIT, THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF CALIFORNIA CONCLUDED THAT THE AREA WITHIN THE
KLAMATH RIVER RESERVATION WAS NOT INDIAN COUNTRY, WITHIN THE MEANING OF
REV. STAT. ^ 2133, PRESCRIBING THE PENALTY FOR UNLICENSED TRADING IN
INDIAN COUNTRY. 

[[HC492'(ORIGINAL DOCUMENT PAGE 492)'  THE COURT CONCLUDED THAT THE
LAND COMPOSING THE RESERVATION WAS NOT RETAINED OR RECOGNIZED AS
RESERVATION LAND PURSUANT TO THE 1864 ACT AND THAT, THEREFORE, IT NO
LONGER CONSTITUTED AN INDIAN RESERVATION.  UNITED STATES V. FORTY-EIGHT
POUNDS OF RISING STAR TEA, 35 F. 403 (ND CAL. 1888).  THIS HOLDING WAS
EXPRESSLY AFFIRMED ON APPEAL TO A CIRCUIT JUDGE.  38 F. 400 (CCND CAL.
1889).  THE ASSISTANT ATTORNEY GENERAL, IN THE OPINION REFERRED TO
ABOVE, CONCEDED THE PROBABLE CORRECTNESS OF THE JUDGMENT BUT WAS NOT
CONVINCED THAT HIS OWN VIEWS WERE ERRONEOUS, AND HE COULD NOT ASSENT TO
THE REASONING OF THE COURT.  HE FELT THAT THE COURT'S COMMENTS AS TO
THE ABANDONED STATUS OF THE RESERVATION "WERE DICTA AND NOT ESSENTIAL
TO THE DECISION OF THE CASE BEFORE THE COURT."  CRICHTON V. SHELTON, 33
I.D., AT 215. 

THUS, AS OF 1891, IT MAY BE FAIR TO SAY THAT THE EXACT LEGAL STATUS
OF THE KLAMATH RIVER RESERVATION WAS OBSCURE AND UNCERTAIN.  THE
PETITIONER IN HIS BRIEF HERE, P. 14, STATES THAT THE RESERVATION
"CEASED TO EXIST IN 1876, AT THE LATEST." 

[[HC493'(ORIGINAL DOCUMENT PAGE 493)' 

ANY QUESTION CONCERNING THE RESERVATION'S CONTINUING LEGAL
EXISTENCE, HOWEVER, APPEARS TO HAVE BEEN EFFECTIVELY LAID TO REST BY AN
EXECUTIVE ORDER DATED OCTOBER 16, 1891, ISSUED BY PRESIDENT BENJAMIN
HARRISON.  /14/  BY THE SPECIFIC TERMS OF THAT ORDER, THE HOOPA VALLEY
RESERVATION, WHICH, AS WE ALREADY HAVE NOTED, WAS LOCATED IN 1864 AND
FORMALLY SET APART IN 1876, AND WHICH WAS SITUATED ABOUT 50 MILES
UPSTREAM FROM THE KLAMATH RIVER'S MOUTH, WAS EXTENDED SO AS TO INCLUDE
ALL LAND, ONE MILE IN WIDTH ON EACH SIDE OF THE RIVER, FROM "THE
PRESENT LIMITS" OF THE HOOPA VALLEY RESERVATION TO THE PACIFIC OCEAN. 
THE KLAMATH RIVER RESERVATION, OR WHAT HAD BEEN THE RESERVATION, THUS
WAS MADE PART OF THE HOOPA VALLEY RESERVATION, AS EXTENDED. 

THE REASON FOR INCORPORATING THE KLAMATH RIVER RESERVATION IN THE
HOOPA VALLEY RESERVATION IS APPARENT.  THE 1864 ACT HAD AUTHORIZED THE
PRESIDENT TO "SET APART" NO MORE THAN FOUR TRACTS FOR INDIAN
RESERVATIONS IN CALIFORNIA.  BY 1876, AND CERTAINLY BY 1891, FOUR
RESERVATIONS ALREADY HAD BEEN SO SET APART.  THESE WERE THE ROUND
VALLEY, REFERRED TO ABOVE, THE MISSION, /15/  THE HOOPA VALLEY, AND THE
TULE RIVER.  KAPPLER 830 - 831. 

[[HC494'(ORIGINAL DOCUMENT PAGE 494)'  THUS, RECOGNITION OF A FIFTH
RESERVATION ALONG THE KLAMATH RIVER WAS NOT PERMISSIBLE UNDER THE 1864
ACT.  ACCORDINGLY, THE PRESIDENT TURNED TO HIS AUTHORITY UNDER THE ACT
TO EXPAND AN EXISTING, RECOGNIZED RESERVATION.  HE ENLARGED THE HOOPA
VALLEY RESERVATION TO INCLUDE WHAT HAD BEEN THE KLAMATH RIVER
RESERVATION AS WELL AS AN INTERVENING RIPARIAN STRIP CONNECTING THE TWO
TRACTS.  /16/  THE PRESIDENT'S CONTINUING AUTHORITY SO TO ENLARGE
RESERVATIONS AND, SPECIFICALLY, THE LEGALITY OF THE 1891 EXECUTIVE
ORDER, WAS AFFIRMED BY THIS COURT IN DONNELLY V. UNITED STATES, 228
U.S. 243, 255 - 259 (1913), ID., AT 708, AND IS NOT CHALLENGED HERE. 
     II 

THIS GENERAL BACKGROUND AS TO THE ORIGIN AND DEVELOPMENT OF THE
KLAMATH RIVER RESERVATION IS NOT CONTESTED BY EITHER PARTY.  THE
RESERVATION'S EXISTENCE, PURSUANT TO THE EXECUTIVE ORDER OF 1891, IS
CONCEDED.  THE PRESENT CONTROVERSY RELATES TO ITS TERMINATION
SUBSEQUENT TO 1891, AND TURNS PRIMARILY UPON THE EFFECT OF THE ACT OF
JUNE 17, 1892, 17 STAT. 52, ENTITLED "AN ACT TO PROVIDE FOR THE
DISPOSITION AND SALE OF LANDS KNOWN AS THE KLAMATH RIVER INDIAN
RESERVATION." 

[[HC495'(ORIGINAL DOCUMENT PAGE 495)'  THIS ACT PROVIDED:     "THAT
ALL OF THE LANDS EMBRACED IN WHAT WAS KLAMATH RIVER RESERVATION IN THE
STATE OF CALIFORNIA, AS SET APART AND RESERVED UNDER AUTHORITY OF LAW
BY AN EXECUTIVE ORDER DATED NOVEMBER SIXTEENTH, EIGHTEEN HUNDRED AND
FIFTY-FIVE, ARE HEREBY DECLARED TO BE SUBJECT TO SETTLEMENT, ENTRY, AND
PURCHASE UNDER THE LAWS OF THE UNITED STATES GRANTING HOMESTEAD RIGHTS
AND AUTHORIZING THE SALE OF MINERAL, STONE, AND TIMBER LANDS:
PROVIDED, THAT ANY INDIAN NOW LOCATED UPON SAID RESERVATION MAY, AT ANY
TIME WITHIN ONE YEAR FROM THE PASSAGE OF THIS ACT, APPLY TO THE
SECRETARY OF THE INTERIOR FOR AN ALLOTMENT . . . AND THE SECRETARY OF
THE INTERIOR MAY RESERVE FROM SETTLEMENT, ENTRY, OR PURCHASE ANY TRACT
OR TRACTS OF LAND UPON WHICH ANY VILLAGE OR SETTLEMENT OF INDIANS IS
NOW LOCATED, AND MAY SET APART THE SAME FOR THE PERMANENT USE AND
OCCUPATION OF SAID VILLAGE OR SETTLEMENT OF INDIANS.  . .  PROVIDED
FURTHER, THAT THE PROCEEDS ARISING FROM THE SALE OF SAID LANDS SHALL
CONSTITUTE A FUND TO BE USED UNDER THE DIRECTION OF THE SECRETARY OF
THE INTERIOR FOR THE MAINTENANCE AND EDUCATION OF THE INDIANS NOW
RESIDING ON SAID LANDS AND THEIR CHILDREN." 

THE RESPONDENT DIRECTOR ARGUES THAT THIS STATUTE EFFECTED THE
TERMINATION OF THE KLAMATH RIVER RESERVATION.  THE PETITIONER URGES THE
CONTRARY.  IT IS OUR TASK, IN LIGHT OF THE LANGUAGE AND PURPOSE OF THE
ACT, AS WELL AS OF THE HISTORCIAL BACKGROUND, OUTLINED ABOVE, TO
DETERMINED THE PROPER MEANING OF THE ACT AND, CONSEQUENTLY, THE CURRENT
STATUS OF THE RESERVATION. 

THE RESPONDENT RELIES UPON WHAT HE FEELS IS SIGNIFICANT LANGUAGE IN
THE ACT AND UPON REFERENCES IN THE LEGISLATIVE HISTORY. 

[[HC496'(ORIGINAL DOCUMENT PAGE 496)'  HE CONTENDS, "THE FACT THAT
THE LANDS WERE TO BE OPENED UP FOR SETTLEMENT AND SALE BY HOMESTEADERS
STRONGLY MILITATES AGAINST A CONTINUATION OF SUCH RESERVATION STATUS." 
BRIEF FOR RESPONDENT 3. 

WE CONCLUDE, HOWEVER, THAT THIS IS A MISREADING OF THE EFFECT OF THE
ALLOTMENT PROVISIONS IN THE 1892 ACT.  THE MEANING OF THOSE TERMS IS TO
BE ASCERTAINED FROM THE OVERVIEW OF THE EARLIER GENERAL ALLOTMENT ACT
OF 1887, 24 STAT. 388.  THAT ACT PERMITTED THE PRESIDENT TO MAKE
ALLOTMENTS OF RESERVATION LANDS TO RESIDENT INDIANS AND, WITH TRIBAL
CONSENT, TO SELL SURPLUS LANDS.  ITS POLICY WAS TO CONTINUE THE
RESERVATION SYSTEM AND THE TRUST STATUS OF INDIAN LANDS, BUT TO ALLOT
TRACTS TO INDIVIDUAL INDIANS FOR AGRICULTURE AND GRAZING.  WHEN ALL THE
LANDS HAD BEEN ALLOTTED AND THE TRUST EXPIRED, THE RESERVATION COULD BE
ABOLISHED.  /17/  UNALLOTTED LANDS WERE MADE AVAILABLE TO NON-INDIANS
WITH THE PURPOSE, IN PART, OF PROMOTING INTERACTION BETWEEN THE RACES
AND OF ENCOURAGING INDIANS TO ADOPT WHITE WAYS.  SEE ^ 6 OF THE GENERAL
ALLOTMENT ACT, 24 STAT. 390; UNITED STATES DEPARTMENT OF THE INTERIOR,
FEDERAL INDIAN LAW 115 - 117, 127 - 129, 776 - 777 (1958).  /18/  UNDER
THE 1887 ACT, HOWEVER, THE PRESIDENT WAS NOT REQUIRED TO OPEN
RESERVATION LAND FOR ALLOTMENT; HE MERELY HAD THE DISCRETION TO DO SO. 

IN VIEW OF THE DISCRETIONARY NATURE OF THIS PRESIDENTIAL POWER,
CONGRESS OCCASIONALLY ENACTED SPECIAL LEGISLATION IN ORDER TO ASSURE
THAT A PARTICULAR RESERVATION WAS IN FACT OPENED TO ALLOTMENT.  /19/
THE 1892 ACT WAS BUT ONE EXAMPLE OF THIS.  ITS ALLOTMENT PROVISIONS,
WHICH DO NOT DIFFER MATERIALLY FROM THOSE OF THE GENERAL ALLOTMENT ACT
OF 1887, AND WHICH IN FACT REFER TO THE EARLIER ACT, DO NOT, ALONE,
RECITE OR EVEN SUGGEST THAT CONGRESS INTENDED THEREBY TO TERMINATE THE
KLAMATH RIVER RESERVATION.  SEE SEYMOUR V. SUPERINTENDENT, 368 U.S.
351, 357 - 358 (1962).  RATHER, ALLOTMENT UNDER THE 1892 ACT IS
COMPLETELY CONSISTENT WITH CONTINUED RESERVATION STATUS.  THIS COURT
UNANIMOUSLY OBSERVED, IN AN ANALOGOUS SETTING IN SEYMOUR, ID., AT 356,
"THE ACT DID NO MORE (IN THIS RESPECT) THAN OPEN THE WAY FOR NON-INDIAN
SETTLERS TO OWN LAND ON THE RESERVATION IN A MANNER WHICH THE FEDERAL
GOVERNMENT, ACTING AS GUARDIAN AND TRUSTEE FOR THE INDIANS, REGARDED AS
BENEFICIAL TO THE DEVELOPMENT OF ITS WARDS."  SEE UNITED STATES V.
CELESTINE, 215 U.S. 278 (1909); UNITED STATES V. NICE, 241 U.S. 591
(1916).  SEE ALSO WILBUR V. UNITED STATES, 281 U.S. 206 (1930);
DONNELLY V. UNITED STATES, 228 U.S. 243 (1913). 

        III 

THE RESPONDENT FURTHER URGES, HOWEVER, THAT HIS VIEW OF THE EFFECT
OF THE 1892 ACT IS SUPPORTED BY THE ACT'S REFERENCE TO "WHAT WAS (THE)
KLAMATH RIVER RESERVATION." 

[[HC498'(ORIGINAL DOCUMENT PAGE 498)'  ACCORDING TO THE RESPONDENT,
THIS REFERENCE, AND OTHER REFERENCES IN THE LEGISLATIVE HISTORY, COMPEL
THE CONCLUSION THAT CONGRESS INTENDED TO TERMINATE THE RESERVATION IN
1892. 

THE 1892 ACT, TO BE SURE, DOES REFER TO THE KLAMATH RIVER
RESERVATION IN THE PAST TENSE.  BUT THIS IS NOT TO BE READ AS A CLEAR
INDICATION OF CONGRESSIONAL PURPOSE TO TERMINATE.  JUST A FEW WEEKS
BEFORE THE BILL (H. R. 38, 52N CONG., 1ST SESS.), WHICH EVENTUALLY
BECAME THE ACT, WAS REPORTED OUT OF COMMITTEE ON FEBRUARY 5, 1892, H.
R. REP. NO. 161, 52 CONG., 1ST SESS., THE PRESIDENT HAD FORMALLY
EXTENDED THE HOOPA VALLEY RESERVATION TO INCLUDE THE KLAMATH RIVER
RESERVATION.  AND ONLY THAT PORTION OF THE EXTENSION WHICH HAD BEEN THE
KLAMATH RIVER RESERVATION WAS THE SUBJECT OF THE 1892 ACT.  THE
REFERENCE TO THE KLAMATH RIVER RESERVATION IN THE PAST TENSE SEEMS,
THEN, MERELY TO HAVE BEEN A NATURAL, CONVENIENT, AND SHORTHAND WAY OF
IDENTIFYING THE LAND SUBJECT TO ALLOTMENT UNDER THE 1892 ACT.  /20/  WE
DO NOT BELIEVE THE REFERENCE CAN BE READ AS INDICATING ANY CLEAR
PURPOSE TO TERMINATE THE RESERVATION DIRECTLY OR BY INNUENDO. 

THE RESPONDENT ALSO POINTS TO NUMEROUS STATEMENTS IN THE LEGISLATIVE
HISTORY THAT, IN HIS VIEW, INDICATE THAT THE RESERVATION WAS TO BE
TERMINATED.  WE NEED NOT REFER IN DETAIL TO THE CITED PASSAGES IN H. R.
REP. NO. 161, SUPRA, OR TO THE DEBATES ON THE BILL, 23 CONG. REC. 1598
1599, 3918 - 3919 (1892), FOR THERE IS NO CHALLENGE HERE TO THE VIEW
THAT THE HOUSE WAS GENERALLY HOSTILE TO CONTINUED RESERVATION STATUS OF
THE LAND IN QUESTION.  IN OUR ESTIMATION, HOWEVER, THIS VERY FACT, IN
PROPER PERSPECTIVE, SUPPORTS THE PETITIONER AND UNDERMINES THE
RESPONDENT'S POSITION. 

AS EARLY AS 1879, THERE WERE EFFORTS IN CONGRESS TO ABOLISH THE
KLAMATH RIVER RESERVATION.  FROM THAT DATE TO 1892 STRONG SENTIMENT
EXISTED TO THIS EFFECT.  BUT IT DOES NOT APPEAR THAT TERMINATION EVER
COMMANDED MAJORITY SUPPORT.  THE ADVOCATES OF TERMINATION ARGUED THAT
THE RESERVATION, AS OF 1879, LONG HAD BEEN ABANDONED; THAT THE LAND WAS
USELESS AS A RESERVATION; AND THAT MANY WHITE SETTLERS HAD MOVED ON TO
THE LAND AND THEIR PROPERTY SHOULD BE PROTECTED.  SEE H. R. REP. NO.
1354, 46TH CONG., 2D SESS., 5 (1880).  THAT WHITES HAD SETTLED THERE IS
CLEAR, BUT THE VIEW THAT NO INDIANS REMAINED AFTER THE FLOOD OF 1861
APPEARS TO HAVE BEEN A GROSS MISCONCEPTION ON THE PART OF THOSE WHO
SOUGHT TERMINATION.  /21/ 

THE FIRST BILL PROVIDING FOR PUBLIC ENTRY AND SALE OF THE KLAMATH
RIVER RESERVATION WAS INTRODUCED IN THE SENATE ON MAY 18, 1879. 

[[HC500'(ORIGINAL DOCUMENT PAGE 500)'  S. RES. 34, 46TH CONG., 1ST
SEES.; 9 CONG. REC. 1651.  THE RESOLUTION REFERRED TO THE RESERVATION'S
HAVING BEEN "ABANDONED" IN 1855 "AND THE TRIBE REMOVED TO ANOTHER
RESERVATION ESTABLISHED FOR ITS USE."  NO ACTION WAS TAKEN ON THE BILL,
AND ANOTHER, OF THE SAME PURPORT, WAS INTRODUCED ON JANUARY 12, 1880,
IN THE HOUSE.  H. R. 3454, 46TH CONG., 2D SESS.; 10 CONG. REC. 286. 
THIS BILL PROVIDED THAT THE RESERVATION "BE, AND THE SAME IS HEREBY,
ABOLISHED," AND AUTHORIZED AND DIRECTED THE SECRETARY OF THE INTERIOR
TO SURVEY THE LANDS AND HAVE THEM MADE SUBJECT TO HOMESTEAD AND
PREEMPTION ENTRY AND SALE "THE SAME AS OTHER PUBLIC LANDS."  IT IS
CLEAR FROM THE REPORT ON THIS SECOND BILL, H. R. REP. NO. 1354, SUPRA,
AT 1 - 5, THAT THE ESTABLISHMENT OF THE RESERVATION IN 1855 WAS VIEWED
AS A MISTAKE AND AN INJUSTICE.  ACCORDING TO THE REPORT, THE
RESERVATION HAD BEEN ABANDONED AFTER THE 1861 FRESHET, AND THE INDIANS
HAD MOVED TO THE SMITH RIVER AND, LATER, THE HOOPA VALLEY
RESERVATIONS.  WHITE SETTLERS HAD MOVED IN AND WISHED TO EXPLOIT THE
LUMBER AND SOIL OF THE AREA WHICH, SOME SAID, "HAS NO EQUAL IN
CALIFORNIA AS A FRUIT AND WINE GROWING COUNTRY."  ID., AT 5.  INASMUCH
AS THE RESERVATION BLOCKED ACCESS TO THE RIVER, THE RESOURCES OF THE
AREA COULD NOT BE DEVELOPED.  ALTHOUGH UNMENTIONED IN THAT REPORT, THE
OFFICE OF INDIAN AFFAIRS OPPOSED THE BILL.  SEE H. R. REP. NO. 1148,
47TH CONG., 1ST SESS., 1 (1882).  THE BILL AS REPORTED WAS RECOMMITTED
AND NO FURTHER ACTION WAS TAKEN.  10 CONG. REC. 3126 (1880). 

AN IDENTICAL BILL WAS INTRODUCED IN THE FOLLOWING CONGRESS.  H. R.
60, 47TH CONG., 1ST SESS.; 13 CONG. REC. 90 (1881).  THE COMMISSIONER
OF INDIAN AFFAIRS OPPOSED THE BILL AS INTRODUCED, BUT STATED THAT HE
WOULD NOT OPPOSE IT IF PROVISION FOR PRIOR ALLOTMENTS TO THE INDIANS
WAS MADE.  H. R. REP. NO. 1148, SUPRA, AT 2.  THE COMMISSIONER'S
PROPOSED AMENDMENT WAS APPROVED BY THE COMMITTEE, 13 CONG. REC. 3414
(1882), BUT NO ACTION ON THE BILL WAS TAKEN BY THE FULL HOUSE. 

[[HC501'(ORIGINAL DOCUMENT PAGE 501)' 

IN 1883 AND 1884 THREE MORE BILLS WERE INTRODUCED.  IT IS OF
INTEREST TO NOTE THAT EACH ACCEDED TO THE REQUEST OF THE COMMISSIONER
THAT PROVISION BE MADE FOR PRIOR ALLOTMENTS TO RESIDENT INDIANS.  H. R.
112, 48TH CONG., 1ST SESS.; 15 CONG. REC. 62 (1883); S. 813, 48TH
CONG., 1ST SESS.; 15 CONG. REC. 166 (1883); H. R. 7505, 48TH CONG., 1ST
SESS.; 15 CONG. REC. 5923 (1884).  EACH BILL WOULD HAVE "ABOLISHED"
THE RESERVATION AND WOULD HAVE MADE THE LAND SUBJECT TO HOMESTEAD AND
PRE-EMPTION ENTRY.  NONE OF THE BILLS WAS ENACTED, ALTHOUGH PASSAGE
MUST HAVE BEEN GENERALLY REGARDED AS LIKELY, FOR THE INDIAN BUREAU IN
1883 BEGAN THE WORK OF ALLOTMENT AND SURVEY, PERHAPS IN ANTICIPATION OF
PASSAGE. 

IN 1885 TWO BILLS WERE INTRODUCED IN THE HOUSE.  EACH WAS
SUBSTANTIALLY INDENTICAL TO THOSE INTRODUCED IN 1883 AND 1884.  H. R.
158 AND H. R. 165, 49TH CONG., 1ST SESS.; 17 CONG. REC. 370 (1885).  NO
ACTION WAS TAKEN ON EITHER BILL. 

NO FURTHER BILLS, APPARENTLY, WERE INTRODUCED UNTIL 1889.  DURING
THE INTERVENING PERIOD, HOWEVER, THE GENERAL ALLOTMENT ACT OF 1887, 24
STAT. 388, WAS PASSED AND THEREAFTER AMENDED, 26 STAT. 794.  THE RISING
STAR TEA CASE, SUPRA, 35 F. 403, WAS ALSO DECIDED. 

IN 1889 A BILL PROVIDING FOR THE ALLOTMENT OF THE KLAMATH RIVER
RESERVATION WAS INTRODUCED.  THE ALLOTMENTS, HOWEVER, WERE TO BE MADE
IN A MANNER INCONSISTENT WITH THE GENERAL ALLOTMENT ACT.  H. R. 12104,
50TH CONG., 2D SESS.; 20 CONG. REC. 756 (1889).  AND AFTER AFFIRMANCE
OF THE RISING STAR TEA CASE BY THE CIRCUIT COURT, 38 F. 400 (1889),
IDENTICAL BILLS WERE INTRODUCED IN THE HOUSE AND THE SENATE PROVIDING,
WITHOUT MENTION OF ALLOTMENT, THAT "ALL OF THE LANDS EMBRACED IN WHAT
WAS KLAMATH RIVER RESERVATION . . . ARE HEREBY DECLARED TO BE SUBJECT
TO SETTLEMENT, ENTRY, AND PURCHASE" UNDER THE LAND LAWS. 

[[HC502'(ORIGINAL DOCUMENT PAGE 502)'  H. R. 113, 52ST CONG., 1ST
SESS.; 21 CONG. REC. 229 (1889); S. 2297, 51ST CONG., 1ST SESS.; 21
CONG. REC. 855 (1890).  THE INDIAN OFFICE OPPOSED THE BILLS,
RECOMMENDING THAT THEY BE AMENDED TO PROVIDE FOR ALLOTMENTS TO THE
INDIANS UNDER THE GENERAL ALLOTMENT ACT, THAT SURPLUS LANDS BE RESTORED
TO THE PUBLIC DOMAIN, AND THAT THE PROCEEDS BE HELD IN TRUST FOR THE
KLAMATH RIVER INDIANS.  SEE SHORT V. UNITED STATES, NO. 102 - 63
(REPORT OF COMMISSIONER, COURT OF CLAIMS, 1972), PP. 44 - 45.  H. R.
113 WAS REPORTED OUT OF COMMITTEE WITH CERTAIN AMENDMENTS, INCLUDING
ONE TO THE EFFECT THAT PROCEEDS ARISING FROM THE SALE OF LANDS WERE TO
BE USED FOR THE "REMOVAL, MAINTENANCE, AND EDUCATION" OF THE RESIDENT
INDIANS, THE HOOPA VALLEY RESERVATION BEING CONSIDERED THE PLACE OF
REMOVAL.  ALLOTMENTS TO THE INDIANS ON THE KLAMATH RESERVATION,
HOWEVER, WERE EMPHATICALLY REJECTED.  H. R. REP. NO. 1176, 51ST CONG.,
1ST SESS., 2 (1890).  THE BILL WAS SO AMENDED AND PASSED THE HOUSE.  21
CONG. REC. 10701 - 10702 (1890).  IT DIED IN THE SENATE. 

IN LIGHT OF THE PASSAGE OF THIS LAST BILL IN THE HOUSE AND THE
PRESENCE OF THE RISING STAR TEA OPINIONS, THE INDIAN DEPARTMENT MOVED
TO HAVE THE KLAMATH RIVER RESERVATION LAND PROTECTED FOR THE INDIANS
RESIDING THERE.  THE DETAILS OF THIS EFFORT, INCLUDING THE OPINION OF
THE ASSISTANT ATTORNEY GENERAL, REFERRED TO ABOVE, ARE OUTLINED IN THE
COMMISSIONER'S REPORT IN SHORT V. UNITED STATES, SUPRA, AT 45 - 50. 
THESE EFFORTS CULMINATED IN PRESIDENT HARRISON'S EXECUTIVE ORDER OF
OCTOBER 1891 EXPANDING THE HOOPA VALLEY RESERVATION TO INCLUDE THE
KLAMATH RIVER RESERVATION. 

IT IS AGAINST THIS BACKGROUND OF REPEATED LEGISLATIVE EFFORTS TO
TERMINATE THE RESERVATION, AND TO AVOID ALLOTTING RESERVATION LANDS TO
THE INDIANS, THAT THE 1892 ACT WAS INTRODUCED.  H. R. 38, 52D CONG.,
1ST SESS.; 23 CONG. REC. 125 (1892). 

[[HC503'(ORIGINAL DOCUMENT PAGE 503)'  THE BILL PROVIDED FOR THE
SETTLEMENT, ENTRY, AND PURCHASE OF THE RESERVATION LAND AND SPECIFIED
THAT THE PROCEEDS SHOULD BE USED FOR THE "REMOVAL, MAINTENANCE, AND
EDUCATION" OF THE RESIDENT INDIANS.  NO ALLOTMENTS WERE PROVIDED FOR,
AS THE INDIANS WERE "SEMICIVILIZED, DISINCLINED TO LABOR, AND HAVE NO
CONCEPTION OF LAND VALUES OR DESIRE TO CULTIVATE THE SOIL."  H. R. REP.
NO. 161, 52D CONG., 1ST SESS., 1 (1892).  THE HOUSE COMMITTEE ON INDIAN
AFFAIRS AMENDED THE BILL BY CHANGING THE WORD "AND" TO "OR" IN THE
PROVISON RELATING TO THE USE OF PROCEEDS.  ID., AT 2.     THE BILL
PASSED THE HOUSE WITHOUT CHANGE.  23 CONG. REC. 1598 - 1599 (1892).  IT
WAS STRUCK OUT IN THE SENATE, HOWEVER, AND ANOTHER VERSION WAS
SUBSTITUTED DELETING REFERENCE TO THE REMOVAL OF THE INDIANS AND
PROVIDING THAT BEFORE PUBLIC SALE THE LAND SHOULD BE ALLOTTED TO THE
INDIANS UNDER THE GENERAL ALLOTMENT ACT OF 1887, AS AMENDED.  ID., AT
3918 - 3919.  THIS SUBSTITUTE MEASURE HAD THE SUPPORT OF THE INTERIOR
DEPARTMENT.  ID., AT 3918.  THE SENATE CALLED FOR A CONFERENCE WITH THE
HOUSE, ID., AT 3919, AND THE CONFERENCE ADOPTED THE SENATE VERSION WITH
AMENDMENTS.  SEN. MISC. DOC. NO. 153, 52D CONG., 1ST SESS. (1892).  THE
BILL WAS THEN PASSED AND BECAME THE 1892 ACT. 

 IV 

SEVERAL CONCLUSIONS MAY BE DRAWN FROM THIS ACCOUNT.  FIRST, THE
RESPONDENT'S RELIANCE ON THE HOUSE REPORT AND ON COMMENTS MADE ON THE
FLOOR OF THE HOUSE IS NOT WELL PLACED.  ALTHOUGH THE PRIMARY IMPETUS
FOR TERMINATION OF THE KLAMATH RIVER RESERVATION HAD BEEN WITH THE
HOUSE SINCE 1871, THIS EFFORT CONSISTENTLY HAD FAILED TO ACCOMPLISH THE
VERY OBJECTIVES THE RESPONDENT NOW SEEKS TO ACHIEVE.  LIKEWISE, THE
HOUSE IN 1892 FAILED TO ACCOMPLISH THESE OBJECTIVES, FOR THE SENATE
VERSION, SUPPORTED BY THE INTERIOR DEPARTMENT, WAS SUBSTITUTED FOR THAT
OF THE HOUSE. 

[[HC504'(ORIGINAL DOCUMENT PAGE 504)'  THE SENATE VERSION,
ULTIMATELY ENACTED, PROVIDED FOR ALLOTMENTS TO THE INDIANS AND FOR THE
PROCEEDS OF SALES TO BE HELD IN TRUST FOR THE "MAINTENANCE AND
EDUCATION," NOT THE REMOVAL, OF THE INDIANS.  THE LEGISLATIVE HISTORY
RELIED UPON BY THE RESPONDENT DOES NOT SUPPORT THE VIEW THAT THE
RESERVATION WAS TERMINATED; RATHER, BY CONTRAST WITH THE BILL AS
FINALLY ENACTED, IT COMPELS THE CONCLUSION THAT EFFORTS TO TERMINATE
THE RESERVATION BY DENYING ALLOTMENTS TO THE INDIANS FAILED
COMPLETELY. 

A SECOND CONCLUSION IS ALSO INESCAPABLE.  THE PRESENCE OF ALLOTMENT
PROVISIONS IN THE 1892 ACT CANNOT BE INTERPRETED TO MEAN THAT THE
RESERVATION WAS TO BE TERMINATED.  THIS IS APPARENT FROM THE VERY
LANGUAGE OF 18 U.S.C. ^ 1151, DEFINING INDIAN COUNTRY "NOTWITHSTANDING
THE ISSUANCE OF ANY PATENT" THEREIN.  MORE SIGNIFICANTLY, THROUGHOUT
THE PERIOD FROM 1871 - 1892 NUMEROUS BILLS WERE INTRODUCED WHICH
EXPRESSLY PROVIDED FOR THE TERMINATION OF THE RESERVATION AND DID SO IN
UNEQUIVOCAL TERMS.  CONGRESS WAS FULLY AWARE OF THE MEANS BY WHICH
TERMINATION COULD BE EFFECTED.  BUT CLEAR TERMINATION LANGUAGE WAS NOT
EMPLOYED IN THE 1892 ACT.  THIS BEING SO, WE ARE NOT INCLINED TO INFER
AN INTENT TO TERMINATE THE RESERVATION.  /22/  THE COURT STATED IN
UNITED STATES V. CELESTINE, 215 U.S., AT 285, THAT "WHEN CONGRESS HAS
ONCE ESTABLISHED A RESERVATION ALL TRACTS INCLUDED WITHIN IT REMAIN A
PART OF THE RESERVATION UNTIL SEPARATED THEREFROM BY CONGRESS." 

[[HC505'(ORIGINAL DOCUMENT PAGE 505)'  A CONGRESSIONAL DETERMINATION
TO TERMINATE MUST BE EXPRESSED ON THE FACE OF THE ACT OR BE CLEAR FROM
THE SURROUNDING CIRCUMSTANCES AND LEGISLATIVE HISTORY.  SEE SEYMOUR V.
SUPERINTENDENT, 368 U.S. 351 (1962); UNITED STATES V. NICE, 241 U.S.
591 (1916).  /23/ 

FINALLY, OUR CONCLUSION THAT THE 1892 ACT DID NOT TERMINATE THE
KLAMATH RIVER RESERVATION IS REINFORCED BY REPEATED RECOGNITION OF THE
RESERVATION STATUS OF THE LAND AFTER 1892 BY THE DEPARTMENT OF THE
INTERIOR AND BY CONGRESS.  IN 1904 THE DEPARTMENT, IN CRICHTON V.
SHELTON, 33 I.D. 205, RULED THAT THE 1892 ACT RECONFIRMED THE CONTINUED
EXISTENCE OF THE RESERVATION.  IN 1932 THE DEPARTMENT CONTINUED TO
RECOGNIZE THE KLAMATH RIVER RESERVATION, ALBEIT AS PART OF THE HOOPA
VALLEY RESERVATION, /24/  AND IT CONTINUES TO DO SO TODAY.  AND
CONGRESS HAS RECOGNIZED THE RESERVATION'S CONTINUED EXISTENCE BY
EXTENDING THE PERIOD OF TRUST ALLOTMENTS FOR THIS VERY RESERVATION BY
THE 1942 ACT, DESCRIBED ABOVE, 25 U.S.C. ^ 348A, AND BY RESTORING TO
TRIBAL OWNERSHIP CERTAIN VACANT AND UNDISPOSED-OF CEDED LANDS IN THE
RESERVATION BY THE 1958 ACT, SUPRA.  /25/ 

WE CONCLUDE THAT THE KLAMATH RIVER RESERVATION WAS NOT TERMINATED BY
THE ACT OF JUNE 17, 1892, AND THAT THE LAND WITHIN THE BOUNDARIES OF
THE RESERVATION IS STILL INDIAN COUNTRY, WITHIN THE MEANING OF 18
U.S.C. ^ 1151. 

[[HC506'(ORIGINAL DOCUMENT PAGE 506)' 

THE JUDGMENT OF THE COURT OF APPEAL IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS. 

              IT IS SO ORDERED. 

/1/  TITLE 18 U.S.C. ^ 1151 DEFINES THE TERM "INDIAN COUNTRY" TO
INCLUDE, INTER ALIA, "ALL LANDS WITHIN THE LIMITS OF ANY INDIAN
RESERVATION UNDER THE JURISDICTION OF THE UNITED STATES GOVERNMENT,
NOTWITHSTANDING THE ISSUANCE OF ANY PATENT.  . ." 

TITLE 18 U.S.C. ^ 1162(A) PROVIDES THAT, WITH RESPECT TO INDIAN
COUNTRY WITHIN CALIFORNIA, THAT STATE "SHALL HAVE JURISDICTION OVER
OFFENSES COMMITTED BY OR AGAINST INDIANS IN THE AREAS OF INDIAN COUNTRY
. . . TO THE SAME EXTENT THAT SUCH STATE . . . HAS JURISDICTION OVER
OFFENSES COMMITTED ELSEWHERE WITHIN THE STATE . . ., AND THE CRIMINAL
LAWS OF SUCH STATE . . . SHALL HAVE THE SAME FORCE AND EFFECT WITHIN
SUCH INDIAN COUNTRY AS THEY HAVE ELSEWHERE WITHIN THE UNITED . . ." 
DEPRIVE ANY INDIAN OR ANY INDIAN TRIBE, BAND, OR COMMUNITY OF ANY
RIGHT, PRIVILEGE, OR IMMUNITY AFFORDED UNDER FEDERAL TREATY, AGREEMENT,
OR STATUTE WITH RESPECT TO HUNTING, TRAPPING, OR FISHING OR THE
CONTROL, LICENSING, OR REGULATION THEREOF." 

FINALLY, THE CALIFORNIA FISH & GAME CODE ^ 12300 (SUPP. 1973),
READS: 

"IRRESPECTIVE OF ANY OTHER PROVISION OF LAW, THE PROVISIONS OF THIS
CODE ARE NOT APPLICABLE TO CALIFORNIA INDIANS WHOSE NAMES ARE INSCRIBED
UPON THE TRIBAL ROLLS, WHILE ON THE RESERVATION OF SUCH TRIBE AND UNDER
THOSE CIRCUMSTANCES IN THIS STATE WHERE THE CODE WAS NOT APPLICABLE TO
THEM IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 280, CHAPTER
505, FIRST SESSION, 1953, 83D CONGRESS OF THE UNITED STATES (18 U.S.C.
^ 1162)." 

/2/  THE EXECUTIVE ORDER IS REPRODUCED IN 1 C. KAPPLER, INDIAN
AFFAIRS -- LAWS AND TREATIES 817 (1904) (HEREINAFTER KAPPLER). 

AT THE END OF THIS OPINION, AS THE APPENDIX, IS A MAP OF THE KLAMATH
RIVER RESERVATION.  THE AREA DESCRIBED IN THE TEXT IS INDICATED AS THE
"OLD KLAMATH RIVER RESERVATION."  (MAP OMITTED) 

/3/  SEE PET. FOR CERT., APP. B 4 - 5. 

/4/  A. KROEBER, HANDBOOK OF THE INDIANS OF CALIFORNIA, CC. 1 - 4,
PUBLISHED AS BULLETIN 78, BUREAU OF AMERICAN ETHNOLOGY 1 - 97 (1925)
(HEREINAFTER KROEBER); S. POWERS, TRIBES OF CALIFORNIA, CC. 4 AND 5,
PUBLISHED AS 3 CONTRIBUTIONS TO NORTH AMERICAN ETHNOLOGY 44 - 64 (1877)
(HEREINAFTER POWERS).  VARIOUS ANNUAL REPORTS OF THE COMMISSIONER OF
INDIAN AFFAIRS PROVIDE FURTHER INFORMATION; SEE, FOR EXAMPLE, THE 1856
REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS 249 - 250 (HEREINAFTER
REPORT). 

/5/  KROEBER, IN THE PREFACE TO HIS WORK, SUGGESTS THAT THE FACTUAL
MATERIAL CONTAINED IN POWERS' MANUSCRIPT IS SUBJECT TO SOME CRITICISM. 
KROEBER'S REFERENCE TO POWERS DESERVES REPRODUCTION IN FULL HERE: 

"I SHOULD NOT CLOSE WITHOUT EXPRESSING MY SINCERE APPRECIATION OF MY
ONE PREDECESSOR IN THIS FIELD, THE LATE STEPHEN POWERS, WELL KNOWN FOR
HIS CLASSIC "TRIBES OF CALIFORNIA,' ONE OF THE MOST REMARKABLE REPORTS
EVER PRINTED BY AN GOVERNMENT.  POWERS WAS A JOURNALIST BY PROFESSION
AND IT IS TRUE THAT HIS ETHNOLOGY IS OFTEN OF THE CRUDEST.  PROBABLY
THE MAJORITY OF HIS STATEMENTS ARE INACCURATE, MANY ARE MISLEADING, AND
A VERY FAIR PROPORTION ARE WITHOUT ANY FOUNDATION OR POSITIVELY
ERRONEOUS.  HE POSSESSED, HOWEVER, AN ASTOUNDINGLY QUICK AND VIVID
SYMPATHY, A POWER OF OBSERVATION AS KEEN AS IT WAS UNTRAINED, AND AN
INVARIABLY SPIRITED GIFT OF PORTRAYAL THAT RISES AT TIMES INTO THE
REALM OF THE SHEERLY FASCINATING.  ANTHROPOLOGICALLY HIS GREAT SERVICE
LIES IN THE FACT THAT WITH ALL THE LOOSENESS OF HIS DATA AND METHOD HE
WAS ABLE TO A GREATER DEGREE THAN ANYONE BEFORE OR AFTER HIM TO SEIZE
AND FIX THE SALIENT QUALITIES OF THE MENTALITY OF THE PEOPLE HE
DESCRIBED.  THE ETHNOLOGIST MAY THEREFORE BY TURNS WRITHE AND SMILE AS
HE FINGERS POWERS'S PAGES, BUT FOR THE BROAD OUTLINES OF THE CULTURE OF
THE CALIFORNIA INDIAN, FOR ITS VALUES WITH ALL THEIR HIGH LIGHTS AND
SHADOWS, HE CAN STILL DO NO BETTER THAN CONSULT THE BOOK.  WITH ALL ITS
FLIMSY TEXTURE AND SLOVENLY EDGES, IT WILL ALWAYS REMAIN THE BEST
INTRODUCTION TO THE SUBJECT."  KROEBER IX. 

/6/  OF THIS AREA ONE AGENT STATED, "NO PLACE CAN BE FOUND SO WELL
ADAPTED TO THESE INDIANS, AND TO WHICH THEY THEMSELVES ARE SO WELL
ADAPTED, AS THIS VERY SPOT.  NO POSSESSIONS OF THE GOVERNMENT CAN BE
BETTER SPARED TO THEM.  NO TERRITORY OFFERS MORE TO THESE INDIANS AND
VERY LITTLE TERRITORY OFFERS LESS TO THE WHITE MAN.  THE ISSUE OF THEIR
REMOVAL SEEMS TO DISAPPEAR."  1885 REPORT 266. 

/7/  IT IS INTERESTING TO NOTE THAT POWERS BELIEVED THE YUROK
POPULATION AT ONE TIME FAR EXCEEDED 2,500 AND PERHAPS NUMBERED OVER
5,000.  THIS WAS, AS POWERS STATED, "BEFORE THE WHITES HAD COME AMONG
THEM, BRINGING THEIR CORRUPTIONS AND THEIR MALADIES . . ."  POWERS 59. 
THE RENOWNED MAJOR JOHN WESLEY POWELL, WHO WAS THEN IN CHARGE OF THE
UNITED STATES GEOGRAPHICAL AND GEOLOGICAL SURVEY OF THE ROCKY MOUNTAIN
REGION, DEPARTMENT OF THE INTERIOR, PLACED LITTLE FAITH IN POWERS'
FIGURES AND REQUESTED THAT HE MODIFY HIS ESTIMATES.  POWERS EXPRESSED
HIS DISPLEASURE AT THIS IN A LETTER TO MAJOR POWELL STATING, IN
CHARACTERISTIC FASHION, 

"I HAVE THE GREATEST RESPECT FOR YOUR VIEWS AND BELIEFS, AND, WITH
YOUR RICH FUND OF PERSONAL EXPERIENCE AND OBSERVATION; IF YOU DESIRE TO
CUT OUT THE PARAGRAPH AND INSERT ONE UNDER YOUR OWN SIGNATURE, IN
BRACKETS, OR SOMETHING OF THAT KIND, I WILL SUBMIT WITHOUT A MURMUR, IF
YOU WILL ADD THIS REMARK, AS QUOTED FROM MYSELF, TO WIT:  'I DESIRE
SIMPLY TO ASK THE READER TO REMEMBER THAT MAJOR POWELL HAS BEEN
ACCUSTOMED TO THE VAST STERILE WASTES OF THE INTERIOR OF THE CONTINENT,
AND HAS NOT VISITED THE RICH FORESTS AND TEEMING RIVERS OF
CALIFORNIA.'  BUT I SHOULD GREATLY PREFER THAT YOU WOULD SIMPLY DISAVOW
THE ESTIMATES, AND THROW THE WHOLE RESPONSIBILITY UPON ME. 

"THIS PERMISSION I GIVE YOU; BUT I HAVE WADED TOO MANY RIVERS AND
CLIMBED TOO MANY MOUNTAINS TO ABATE ONE JOT OF MY OPINIONS OR BELIEFS
FOR ANY CARPET-KNIGHT WHO YIELDS A COMPILING-PEN IN THE OFFICE OF THE -
OR --.  IF ANY CRITIC, SITTING IN HIS COMFORTABLE PARLOR IN NEW YORK,
AND READING ABOUT THE SPARSE ABORIGINAL POPULATIONS OF THE COLD FORESTS
OF THE ATLANTIC STATES, CAN OVERTHROW ANY OF MY CONCLUSIONS WITH A DASH
OF HIS PEN, WHAT IS THE USE OF THE BOOK AT ALL?  AS LUTHER SAID, AT THE
DIET OF WORMS, 'HERE I STAND; I CANNOT DO OTHERWISE.' 

"I BEG YOU, MY DEAR MAJOR, NOT TO CONSIDER ANYTHING ABOVE WRITTEN AS
IN THE SLIGHTEST DEGREE DISRESPECTFUL TO YOURSELF; SUCH IS THE FARTHEST
REMOVE FROM MY THOUGHTS."  POWERS 2 - 3. POWERS' ESTIMATES WERE NOT
ALTERED, AND THE ABOVE-QUOTED LETTER WAS PLACED SYMPATHETICALLY BY
MAJOR POWELL IN THE INTRODUCTORY SECTION OF POWERS' PUBLISHED STUDY. 

/8/  1864 REPORT 122; OPINION DATED JAN. 20, 1891, OF THE ASSISTANT
ATTORNEY GENERAL FOR THE DEPARTMENT OF THE INTERIOR, QUOTED IN CRICHTON
V. SHELTON, 33 I. D. 205, 210 (1904); KROEBER 19.  ANOTHER SOURCE
ESTIMATES THAT IN 1871 THE INDIAN POPULATION ALONG THE KLAMATH WAS
2,500.  REPORT OF D. H. LOWRY, INDIAN AGENT, SEPT. 1, 1871, NOTED IN
SHORT V. UNITED STATES, NO. 102 - 63, P. 35 (REPORT OF COMMISSIONER,
COURT OF CLAIMS, 1972). 

/9/  THE HOOPA VALLEY RESERVATION WAS LOCATED AUGUST 21, 1864, BUT
FORMALLY SET APART FOR INDIAN PURPOSES, AS AUTHORIZED BY THE 1864 ACT,
BY PRESIDENT GRANT ONLY BY EXECUTIVE ORDER DATED JUNE 23, 1876. 
KAPPLER 815.  SEE APPENDIX MAP.  THE AREA IS THAT DESCRIBED AS THE
"ORIGINAL HOOPA VALLEY RESERVATION."  (MAP OMITTED) 

/10/  LETTER DATED APR. 4, 1888, FROM THE COMMISSIONER OF INDIAN
AFFAIRS TO THE SECRETARY OF THE INTERIOR, QUOTED IN CRICHTON V.
SHELTON, 33 I.D., AT 211. 

/11/  THE ALLOTMENTS, HOWEVER, WERE POSTPONED "ON ACCOUNT OF THE
DISCOVERY OF GROSS ERRORS IN THE PUBLIC SURVEYS."  ID., AT 211; 1885
REPORT XLVIII. 

/12/  "IN RESPONSE TO SAID RESOLUTION, I HAVE TO STATE THAT I AM
UNABLE TO DISCOVER FROM THE RECORDS OF CORRESPONDENCE OF THIS OFFICE
THAT ANY PROCEEDINGS WERE EVER HAD OR CONTEMPLATED BY THIS DEPARTMENT
FOR THE SURVEY AND SALE OF SAID RESERVATION UNDER THE PROVISIONS OF THE
ACT AFORESAID; ON THE CONTRARY, IT APPEARS TO HAVE BEEN THE DECLARED
PURPOSE AND INTENTION OF THE SUPERINTENDENT OF INDIAN AFFAIRS FOR
CALIFORNIA, WHO WAS CHARGED WITH THE SELECTION OF THE FOUR RESERVATIONS
TO BE RETAINED UNDER SAID ACT, EITHER TO EXTEND THE HOOPA VALLEY
RESERVATION (ONE OF THE RESERVATIONS SELECTED UNDER THE ACT), SO AS TO
INCLUDE THE KLAMATH RIVER RESERVATION, OR ELSE KEEP IT AS A SEPARATE
INDEPENDENT RESERVATION, WITH A STATION OR SUBAGENCY THERE, TO BE UNDER
CONTROL OF THE AGENT AT THE HOOPA VALLEY RESERVATION, AND THE LANDS
HAVE BEEN HELD IN A STATE OF RESERVATION FROM THAT DAY TO THIS (EX.
DOC. 140, PP. 1,2)."  QUOTED IN CRICHTON V. SHELTON, 33 I.D., AT 212. 

/13/  "PUSHING ASIDE ALL TECHNICALITIES OF CONSTRUCTION, CAN ANY ONE
DOUBT THAT FOR ALL PRACTICAL PURPOSES THE TRACT IN QUESTION CONSTITUTES
AN INDIAN RESERVATION?  SURELY, IT HAS ALL THE ESSENTIAL
CHARACTERISTICS OF SUCH A RESERVATION; WAS REGULARLY ESTABLISHED BY THE
PROPER AUTHORITY; HAS BEEN FOR YEARS AND IS SO OCCUPIED BY INDIANS NOW,
AND IS REGARDED AND TREATED AS SUCH RESERVATION BY THE EXECUTIVE BRANCH
OF THE GOVERNMENT, TO WHICH HAS BEEN COMMITTED THE MANAGEMENT OF INDIAN
AFFAIRS AND THE ADMINISTRATION OF THE PUBLIC LAND SYSTEM . . . IT IS
SAID, HOWEVER, THAT THE KLAMATH RIVER RESERVATION WAS ABOLISHED BY
    .          . 

"IN THE PRESENT INSTANCE, THE INDIANS HAVE LIVED UPON THE DESCRIBED
TRACT AND MADE IT THEIR HOME FROM TIME IMMEMORIAL; AND IT WAS REGULARLY
SET APART AS SUCH BY THE CONSTITUTED AUTHORITIES, AND DEDICATED TO THAT
PURPOSE WITH ALL THE SOLEMNITIES KNOWN TO THE LAW, THUS ADDING OFFICIAL
SANCTION TO A RIGHT OF OCCUPATION ALREADY IN EXISTENCE.  IT SEEMS TO ME
SOMETHING MORE THAN A MERE IMPLICATION, ARISING FROM A RIGID AND
TECHNICAL CONSTRUCTION OF AN ACT OF CONGRESS, IS REQUIRED TO SHOW THAT
IT WAS THE INTENTION OF THAT BODY TO DEPRIVE THESE INDIANS OF THEIR
RIGHT OF OCCUPANCY OF SAID LANDS, WITHOUT CONSULTATION WITH THEM OR
THEIR ASSENT.  AND AN IMPLICATION TO THAT EFFECT IS ALL, I THINK THAT
CAN BE MADE OUT OF THAT PORTION OF THE THIRD SECTION OF THE ACT OF 1864
WHICH IS SUPPOSED TO BE APPLICABLE."  QUOTED IN CRICHTON V. SHELTON, 33
I. D., AT 212 - 213. 

/14/  "IT IS HEREBY ORDERED THAT THE LIMITS OF THE HOOPA VALLEY
RESERVATION IN THE STATE OF CALIFORNIA, A RESERVATION DULY SET APART
FOR INDIAN PURPOSES, AS ONE OF THE INDIAN RESERVATIONS AUTHORIZED TO BE
SET APART, IN SAID STATE, BY ACT OF CONGRESS APPROVED APRIL (8), 1864,
(13 STATS., 39), BE AND THE SAME ARE HEREBY EXTENDED SO AS TO INCLUDE A
TRACT OF COUNTRY ONE MILE IN WIDTH ON EACH SIDE OF THE KLAMATH RIVER,
AND EXTENDING FROM THE PRESENT LIMITS OF THE SAID HOOPA VALLEY
RESERVATION TO THE PACIFIC OCEAN; PROVIDED, HOWEVER, THAT ANY TRACT OR
TRACTS INCLUDED WITHIN THE ABOVE DESCRIBED BOUNDARIES TO WHICH VALID
RIGHTS HAVE ATTACHED UNDER THE LAWS OF THE UNITED STATES ARE HEREBY
EXCLUDED FROM THE RESERVATION AS HEREBY EXTENDED."  KAPPLER 815. 

/15/  KAPPLER 819 - 824.  IT IS NOTEWORTHY THAT THE BOUNDARIES OF
THE MISSION RESERVATION WERE ALTERED REPEATEDLY BETWEEN 1870 AND 1875,
AND EVEN THEREAFTER.  THESE ACTIONS WERE TAKEN UNDER THE PRESIDENT'S
CONTINUING AUTHORITY TO SET APART AND ADD TO OR DIMINISH THE FOUR
RESERVATIONS AUTHORIZED UNDER THE 1864 ACT.  DONNELLY V. UNITED STATES,
228 U.S. 243 AND 708 (1913).  IN ITS FINAL FORM, THE MISSION
RESERVATION CONSISTED OF NO LESS THAN 19 DIFFERENT AND NONCONTIGUOUS
TRACTS.  KAPPLER 819 - 824; CRICHTON V. SHELTON, 33 I.D., AT 209 -
210. 

/16/  SEE APPENDIX MAP.  THE STIP OF LAND BETWEEN THE HOOPA VALLEY
RESERVATION AND THE KLAMATH RIVER RESERVATION IS REFERRED TO THERE AS
THE "CONNECTING STRIP."  (MAP OMITTED) UNDER THE 1891 EXECUTIVE ORDER
THE HOOPA VALLEY RESERVATION WAS EXTENDED TO ENCOMPASS ALL THREE AREAS
INDICATED ON THE MAP.  THE CONNECTING STRIP AND THE OLD KLAMATH RIVER
RESERVATION FREQUENTLY ARE REFERRED TO AS THE HOOPA VALLEY EXTENSION. 

/17/  THE TRUST PERIOD ON ALLOTMENTS TO INDIANS ON THE KLAMATH RIVER
RESERVATION EXPIRED IN 1919, BUT WAS LATER EXTENDED BY CONGRESS BY THE
ACT OF DEC. 24, 1942, 56 STAT. 1081, 25 U.S.C. ^ 348A.  SEE S. REP. NO.
1714, 77TH CONG., 2D SESS. (1942).  AND IN 1958 CONGRESS RESTORED TO
TRIBAL OWNERSHIP VACANT AND UNDISPOSED-OF CEDED LANDS ON VARIOUS
RESERVATIONS, INCLUDING 159.57 ACRES ON THE KLAMATH RIVER RESERVATION. 
PUB. L. 85 - 420, 72 STAT. 121. 

/18/  FOR AN EXTENDED TREATMENT OF ALLOTMENT POLICY, SEE D. OTIS,
HISTORY OF THE ALLOTMENT POLICY, IN READJUSTMENT OF INDIAN AFFAIRS,
HEARINGS ON H. R. 7902 BEFORE THE HOUSE COMMITTEE ON INDIAN AFFAIRS,
73D CONG., 2D SESS., 428 - 440 (1934).  THE POLICY OF ALLOTMENT AND
SALE OF SURPLUS RESERVATION LAND WAS REPUDIATED IN 1934 BY THE INDIAN
REORGANIZATION ACT, 48 STAT. 984, NOW AMENDED AND CODIFIED AS 25 U.S.C.
^ 461 ET SEQ. 

/19/  SEE, FOR EXAMPLE, THE ACT OF MAR. 2, 1889, 25 STAT. 888 (SIOUX
RESERVATIONS), AND UNITED STATES V. NICE, 241 U.S. 591 (1916); THE ACT
OF MAR. 22, 1906, 34 STAT. 80 (COLVILLE RESERVATION), AND SEYMOUR V.
SUPERINTENDENT, 368 U.S. 351 (1962); THE ACT OF MAY 29, 1908, 35 STAT.
460 (CHEYENNE RIVER AND STANDING ROCK RESERVATIONS), AND UNITED STATES
EX REL. CONDON V. ERICKSON, 478 F.2D 684 (CA8 1973), AFF'G 344 F. SUPP.
777 (SD 1972). 

/20/  THE RESPONDENT ARGUES, HOWEVER, THAT CONGRESS, PERHAPS
UNACQUAINTED WITH THE EXECUTIVE ORDER OF OCTOBER 1891, INTENDED THIS
LANGUAGE TO CONVEY THE VIEW EXPRESSED IN THE HOUSE REPORT, H. R. REP.
NO. 161, SUPRA, 23 CONG. REC. 1598 - 1599 (1892), THAT THE KLAMATH
RIVER RESERVATION HAD LONG BEEN ABANDONED AND, IN FACT AND IN LAW, HAD
ALREADY BEEN TERMINATED. 

IT IS CLEAR FROM THE TEST, INFRA, THAT THERE WERE EFFORTS IN CERTAIN
QUARTERS OF THE HOUSE TO TEMINATE THE RESERVATION AND OPEN IT FOR WHITE
SETTELEMENT.  SEE SHORT V. UNITED STATES, SUPRA, AT 34 - 52.  WHILE THE
RESPONDENT'S INTERPRETATION OF THE PHRASE IS PLAUSIBLE, IT IS NO LESS
PLAUSIBLE TO CONCLUDE, IN LIGHT OF THE REPEATED AND UNSUCCESSFUL
EFFORTS BY THE HOUSE OF TERMINATE THE RESERVATION, THAT THE SENATE
PROPONENTS OF THE LEGISLATION WERE NOT INCLINED TO MAKE THEIR CAUSE
(REQUIRING ALLOTMENTS) LESS ATTRACTIVE TO THE HOUSE BY AMENDING THE
BILL TO REFER TO THE "FORMER KLAMATH RIVER RESERVATION, NOW PART OF THE
HOOPA VALLEY RESERVATION"  RATHER THAN "WHAT WAS (THE) KLAMATH RIVER
RESERVATION." 

/21/  THE DEPARTMENT OF THE INTERIOR TOOK ISSUE WITH THE COMMITTEE'S
POPULATION ESTIMATES.  H. R. REP. NO. 1148, 47TH CONG., 1ST SESS., 1 -
3 (1882).  IN A LETTER TRANSMITTED TO THE COMMITTEE ON INDIAN AFFAIRS
IN 1881, AN INFANTRY LIEUTENANT, ACTING AS INDIAN AGENT, SUGGESTED THAT
THE COMMITTEE'S POPULATION ESTIMATES WERE "GLEANED PRINCIPALLY FROM
CIVILIANS, WHO ARE, I BELIEVE, SOMEWHAT INCLINED TO LESSEN THE NUMBER,
THINKING DOUBTLESSLY THAT THE SMALLER THE NUMBER THE GREATER THE
LIKELIHOOD OF ITS BEING THROWN OPEN TO SETTLERS."  ID., AT 2. 

/22/  CONGRESS HAS USED CLEAR LANGUAGE OF EXPRESS TERMINATION WHEN
THAT RESULT IS DESIRED.  SEE, FOR EXAMPLE, 15 STAT. 221 (1868) ("THE
SMITH RIVER RESERVATION IS HEREBY DISCONTINUED"); 27 STAT. 63 (1892)
(ADOPTED JUST TWO WEEKS AFTER THE 1892 ACT WITH WHICH THIS CASE IS
CONCERNED, PROVIDING THAT THE NORTH HALF OF THE COLVILLE INDIAN
RESERVATION, "THE SAME BEING A PORTION OF THE COLVILLE INDIAN
RESERVATION . . . BE, AND IS HEREBY, VACATED AND RESTORED TO THE PUBLIC
DOMAIN"), AND SEYMOUR V. SUPERINTENDENT, 368 U.S., AT 354; 33 STAT. 218
(1904) ("THE RESERVATION LINES OF THE SAID PONCA AND OTOE AND MISSOURIA
INDIAN RESERVATIONS BE, AND THE SAME ARE HEREBY, ABOLISHED"). 

/23/  IN UNITED STATES EX REL. CONDON V. ERICKSON, 478 F.2D 684
(1973), THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
REACHED A SIMILAR CONCLUSION IN A CASE PRESENTING ISSUES NOT UNLIKE
THOSE BEFORE US.  THE COURT CONCLUDED, ID., AT 689, THAT "A HOLDING
FAVORING FEDERAL JURISDICTION IS REQUIRED UNLESS CONGRESS HAS EXPRESSLY
OR BY CLEAR IMPLICATION DIMINISHED THE BOUNDARIES OF THE RESERVATION
OPENED TO SETTLEMENT" (EMPHASIS IN ORIGINAL). 

/24/  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
INDIAN AFFAIRS, SURVEY OF CONDITIONS OF THE INDIANS IN THE UNITED
STATES, PT. 29, CALIFORNIA, 72D CONG., 1ST SESS., 15532 (1934). 

/25/  ALTHOUGH SUBSEQUENT LEGISLATION USUALLY IS NOT ENTITLED TO
MUCH WEIGHT IN CONSTRUING EARLIER STATUTES, UNITED STATES V.
SOUTHWESTERN CABLE CO., 392 U.S. 157, 170 (1968), IT IS NOT ALWAYS
WITHOUT SIGNIFICANCE.  SEE SEYMOUR V. SUPERINTENDENT, 368 U.S., AT 356
357. 

LEE J. SCLAR ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

RODERICK WALSTON, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEFS WERE EVELLE J. YOUNGER,
ATTORNEY GENERAL, AND CARL BORONKAY, ASSISTANT ATTORNEY GENERAL. 

HARRY R. SACHSE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL FRIZZELL, CARL STRASS, AND GLEN R.
GOODSELL. 
..END :








CITY OF KENOSHA ET AL. V. BRUNO ET AL., 412 U.S. 507 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF WISCONSIN 

     NO. 72 - 658.  ARGUED APRIL 18, 1973 -- DECIDED JUNE 11, 1973;

346 F. SUPP. 43, VACATED AND REMANDED. 


    APPELLEES, WHO APPARENTLY BECAUSE OF ALLEGED NUDE DANCING AT

  THEIR RETAIL LIQUOR ESTABLISHMENTS WERE DENIED RENEWAL OF THE

  ONE-YEAR LIQUOR LICENSES, BROUGHT SUIT UNDER 42 U.S.C. ^ 1983 FOR

  DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE CITIES OF RACINE

  AND KENOSHA.  APPELLEES CLAIMED DEPRIVATION OF PROCEDURAL DUE

  PROCESS ARISING FROM THE CITIES' FAILURE TO HOLD FULL-BLOWN

  ADVERSARY HEARINGS BEFORE REFUSING TO ISSUE LICENSE RENEWALS, AND

  THE UNCONSTITUTIONALITY OF THE LOCAL LICENSING SCHEME.  THE

  WISCONSIN ATTORNEY GENERAL INTERVENED AS A PARTY DEFENDANT IN THE

  PROCEEDINGS.  THE CASES WERE SUBMITTED ON CROSS-MOTIONS FOR

  SUMMARY JUDGMENT AND STIPULATIONS OF FACT.  A THREE-JUDGE

  DISTRICT COURT HELD THAT IN LIGHT OF THE "EQUITABLE NATURE" OF

  THE ACTIONS IT HAD JURISDICTION UNDER 28 U.S.C. ^ 1343 AND THE

  COURT DECLARED THE STATUTORY SCHEME UNCONSTITUTIONAL AND ENJOINED

  ITS ENFORCEMENT.  HELD: 

     1.  A CITY IS NOT A "PERSON" UNDER 42 U.S.C. ^ 1983 WHERE

  EQUITABLE RELIEF IS SOUGHT, ANY MORE THAN IT IS WHERE DAMAGES ARE

  SOUGHT, MONROE V. PAPE, 365 U.S. 167, 187, AND THE DISTRICT

  COURT, THEREFORE, ERRED IN CONCLUDING THAT IT HAD JURISDICTION

  OVER THE COMPLAINTS UNDER 28 U.S.C. ^ 1343 SINCE ONLY THE TWO

  MUNICIPALITIES WERE NAMED AS DEFENDANTS.  PP. 511 - 513. 

     2.  THE DISTRICT COURT ON REMAND SHOULD CONSIDER THE

  JURISDICTIONAL QUESTIONS PRESENTED BY THE STATE ATTORNEY

  GENERAL'S INTERVENTION AND THE AVAILABILITY OF 28 U.S.C. ^ 1331

  JURISDICTION, AS WELL AS THE DECISIONS IN BOARD OF REGENTS V.

  ROTH, 408 U.S. 564, AND PERRY V. SINDERMANN, 408 U.S. 593, WHICH

ARE GERMANE TO THE DUE PROCESS ISSUE, AND THE SUPERVENING

 DECISION IN CALIFORNIA V. LARUE, 409 U.S. 109, DEALING WITH BROAD

  STATE AUTHORITY OVER LIQUOR DISTRIBUTION.  PP. 513 - 515. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, AND POWELL,
JJ., JOINED.  BRENNAN, J., FILED A CONCURRING OPINION, IN WHICH
MARSHALL, J., JOINED, POST, P. 516.  DOUGLAS, J., FILED AN OPINION
DISSENTING IN PART, POST, P. 516. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

[[HC508'(ORIGINAL DOCUMENT PAGE 508)' 

APPELLEES, OWNERS OF RETAIL LIQUOR ESTABLISHMENTS, WERE HOLDERS OF
TAVERN LIQUOR LICENSES /1/  ISSUED UNDER WISCONSIN LAW BY APPELLANTS,
THE CITIES OF RACINE AND KENOSHA.  ACTING PURSUANT TO WIS. STAT. ANN.
^^ 176.05(1), (8) (1957 AND SUPP. 1973), THE CITIES DENIED APPELLEES'
APPLICATIONS FOR RENEWAL OF THEIR ONE-YEAR LICENSES AFTER HOLDING
PUBLIC "LEGISLATIVE" HEARINGS.  ALLEGING, INTER ALIA, DEPRIVATIONS OF
THEIR FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS RIGHTS IN SUCH
DENIALS AND, BY AMENDED COMPLAINTS, THE UNCONSTITUTIONALITY OF ^^
176.05(1), (8), APPELLEES BROUGHT THESE FEDERAL CIVIL RIGHTS ACTIONS
FOR DECLARATORY AND INJUNCTIVE RELIEF NAMING IN EACH CASE ONLY THE
APPROPRIATE MUNICIPALITY AS A DEFENDANT.  THE DISTRICT COURT ENTERED
TEMPORARY RESTRAINING ORDERS COMMANDING THE IMMEDIATE ISSUANCE OF
LICENSES AND CONVENED A THREE-JUDGE DISTRICT COURT PURSUANT TO 28
U.S.C. ^ 2281 TO RULE ON THE CONSTITUTIONALITY OF THE STATUTORY
LICENSING PROCEDURE.  THEREAFTER, THE ATTORNEY GENERAL OF WISCONSIN WAS
ALLOWED TO INTERVENE AS A PARTY DEFENDANT ON HIS OWN MOTION.  ON CROSS
MOTIONS FOR SUMMARY JUDGMENT, THE DISTRICT COURT DECLARED THE STATUTE
UNCONSTITUTIONAL AND ENJOINED ITS ENFORCEMENT. 

[[HC509'(ORIGINAL DOCUMENT PAGE 509)'  THIS DIRECT APPEAL FOLLOWED. 

UNDER THE WISCONSIN LOCAL LICENSING SCHEME, THE GOVERNING BODIES OF
MUNICIPALITIES ARE AUTHORIZED TO GRANT LIQUOR LICENSES "TO SUCH PERSONS
ENTITLED TO A LICENSE UNDER THIS CHAPTER AS THEY DEEM PROPER TO KEEP
PLACES WITHIN THEIR RESPECTIVE TOWNS, VILLAGES, OR CITIES FOR THE SALE
OF INTOXICATING LIQUORS.  . ."  WIS. STAT. ANN. ^ 176.05(1) (1957). 
/2/  THE STATUTORY SCHEME HAS BEEN INTERPRETED BY THE WISCONSIN SUPREME
COURT TO REQUIRE A "LEGISLATIVE TYPE OF HEARING WHEREIN ONE IS GIVEN
NOTICE OF THE HEARING AND A FAIR OPPORTUNITY TO STATE HIS POSITION ON
THE ISSUE," IN SITUATIONS WHERE MUNICIPALITIES HAVE DENIED AN
APPLICATION FOR RENEWAL OF A LICENSE.  RUFFALO V. COMMON COUNCIL, 38
WIS. 2D 518, 524, 157 N. W. 2D 568, 571 (1968).  SUCH APPLICATIONS MAY
NOT BE REJECTED "WITHOUT A STATEMENT ON THE CLERK'S MINUTES AS TO THE
REASONS FOR SUCH REJECTION," WIS. STAT. ANN. ^ 176.05 (8) (SUPP. 1973),
/3/ AND THE STATE COURTS HAVE CERTIORARI JURISDICTION TO REVIEW WHETHER
SUCH REFUSALS BY THE COUNCILS ARE ARBITRARY, CAPRICIOUS, OR
DISCRIMINATORY. 

[[HC510'(ORIGINAL DOCUMENT PAGE 510)'  RUFFALO V. COMMON COUNCIL,
SUPRA. 

IN THE CASE OF THE RACINE DENIALS, /4/  IT WAS STIPULATED THAT THE
QUESTION OF THE APPELLEES' APPLICATIONS FOR LICENSES WAS REFERRED TO
THE LICENSE AND WELFARE COMMITTEE OF THE COMMON COUNCIL AND THAT AT
PUBLIC HEARINGS CONDUCTED BY THAT COMMITTEE, APPELLEES WERE PRESENT AND
HEARD ORAL OBJECTIONS TO THE RENEWAL OF THE LICENSES FOR THEIR
TAVERNS.  /5/  AFTER HOLDING A PUBLIC HEARING, THE COMMON COUNCIL
FOLLOWED THE COMMITTEE'S RECOMMENDATION AND VOTED TO DENY THE
APPLICATIONS, APPARENTLY BECAUSE OF THE ADVERSE EFFECTS ON THE
COMMUNITY OF NUDE DANCING IN THE BARS. 

IT WAS ALSO STIPULATED THAT AT ALL MEETINGS, ALL PERSONS INCLUDING
APPELLEES WERE GIVEN AN OPPORTUNITY TO SPEAK, BUT NO SPEAKER WAS
SWORN.  NONE OF THE TESTIMONY WAS RECORDED AND NO VERBATIM TRANSCRIPT
WAS MADE.  APPELLEES WERE NOT ADVISED THAT THEY COULD CROSS-EXAMINE ANY
OF THE SPEAKERS, AND THEY DID NOT REQUEST SUCH AN OPPORTUNITY.  AND
THERE WAS NO ADVANCE WRITTEN SPECIFICATION OF THE CHARGES AGAINST ANY
OF THE BARS. 

RELYING ON TWO SEVENTH CIRCUIT DECISIONS, /6/  THE THREE-JUDGE COURT
(AS HAD THE SINGLE JUDGE) HELD THAT "IN LIGHT OF THE EQUITABLE NATURE
OF THIS ACTION" IT HAD JURISDICTION PURSUANT TO 28 U.S.C. ^ 1343(3). 
/7/  CONCLUDING THAT RACINE'S INTEREST IN BEING ABLE TO DENY THE
RENEWAL OF LIQUOR LICENSES WITH NO OTHER SAFEGUARD THAN A LEGISLATIVE
HEARING IS "MINIMAL," THE COURT BALANCED THAT INTEREST AGAINST THAT OF
APPELLEES, ASSERTEDLY THEIR OCCUPATIONS AND THEIR INVESTMENTS, AND
DETERMINED THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES MUNICIPALITIES TO GRANT AN "ADVERSARY-TYPE HEARING IN WHICH
THE APPLICANT IS GIVEN TIMELY NOTICE OF THE REASONS URGED FOR DENIAL
(OF RENEWAL OF HIS LICENSE) AND AN OPPORTUNITY TO PRESENT, CONFRONT,
AND CROSS-EXAMINE WITNESSES UNDER OATH WITH A VERBATIM TRANSCRIPT." 
346 F. SUPP. 43, 51. 

        I 

NEITHER PARTY TO THE APPEAL HAS QUESTIONED THE JURISDICTION OF THE
DISTRICT COURT, BUT "IT IS THE DUTY OF THIS COURT TO SEE TO IT THAT THE
JURISDICTION OF THE (DISTRICT COURT), WHICH IS DEFINED AND LIMITED BY
STATUTE, IS NOT EXCEEDED."  LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY,
211 U.S. 149, 152 (1908).  APPELLEES ALLEGED THAT THEY BROUGHT THEIR
ACTION UNDER 42 U.S.C. ^ 1983, /8/  AND THAT THE DISTRICT COURT
THEREFORE HAD JURISDICTION UNDER 28 U.S.C. ^ 1343. 

[[HC512'(ORIGINAL DOCUMENT PAGE 512)'  THE DISTRICT COURT AGREED. 
THE ONLY DEFENDANTS NAMED IN THE COMPLAINTS, HOWEVER, WERE THE
MUNICIPALITIES OF KENOSHA AND RACINE.  IN CONSIDERING THE REACH OF ^
1983 IN MONROE V. PAPE, 365 U.S. 167 (1961), THIS COURT EXAMINED THE
LEGISLATIVE HISTORY SURROUNDING ITS ENACTMENT AND SAID: 

     "THE RESPONSE OF THE CONGRESS TO THE PROPOSAL TO MAKE

  MUNICIPALITIES LIABLE FOR CERTAIN ACTIONS BEING BROUGHT WITHIN

  FEDERAL PURVIEW BY THE ACT OF APRIL 20, 1871, WAS SO ANTAGONISTIC

  THAT WE CANNOT BELIEVE THAT THE WORD 'PERSON' WAS USED IN THIS

  PARTICULAR ACT TO INCLUDE THEM."  ID., AT 191. 

THE DISTRICT COURT RELIED ON SCHNELL V. CITY OF CHICAGO, 407 F.2D
1084 (CA7 1969), AND ADAMS V. CITY OF PARK RIDGE, 293 F.2D 585 (1961),
IN HOLDING THAT MONROE WAS LIMITED TO ACTIONS FOR DAMAGES, AND THAT
CITIES WERE PROPER DEFENDANTS UNDER ^ 1983 WHERE EQUITABLE RELIEF WAS
SOUGHT.  ADAMS, SUPRA, /9/  IN TURN, RELIED ON THIS COURT'S PER CURIAM
OPINION IN HOLMES V. CITY OF ATLANTA, 350 U.S. 879 (1955).  BUT IN NONE
OF THE THREE OPINIONS IN HOLMES WAS THE ISSUE OF WHETHER OR NOT A
MUNICIPALITY IS A "PERSON" WITHIN THE MEANING OF ^ 1983 DISCUSSED.  THE
AUTHORITY OF THAT CASE AS SUPPORT FOR THE PROPOSITION THAT A CITY IS A
"PERSON" UNDER ^ 1983 WHERE EQUITABLE RELIEF IS SOUGHT, BUT IS NOT A
"PERSON" UNDER THE SAME SECTION WHERE DAMAGES ARE PRAYED FOR, IS AT
LEAST SERIOUSLY WEAKENED BY THE FOLLOWING OBSERVATION IN MONROE, SUPRA,
AT 191 N. 50: 

[[HC513'(ORIGINAL DOCUMENT PAGE 513)' 

"IN A FEW CASES IN WHICH EQUITABLE RELIEF HAS BEEN SOUGHT, A
MUNICIPALITY HAS BEEN NAMED, ALONG WITH CITY OFFICIALS, AS DEFENDANT
WHERE VIOLATIONS OF 42 U.S.C. ^ 1983 WERE ALLEGED.  SEE, E. G., DOUGLAS
V. CITY OF JEANNETTE, 319 U.S. 157; HOLMES V. CITY OF ATLANTA, 350 U.S.
879.  THE QUESTION DEALT WITH IN OUR OPINION WAS NOT RAISED IN THOSE
CASES, WIETHER BY THE PARTIES OR BY THE COURT.  SINCE WE HOLD THAT A
MUNICIPAL CORPORATION IS NOT A 'PERSON' WITHIN THE MEANING OF ^ 1983,
NO INFERENCE TO THE CONTRARY CAN ANY LONGER BE DRAWN FROM THOSE
CASES." 

WE FIND NOTHING IN THE LEGISLATIVE HISTORY DISCUSSED IN MONROE, OR
IN THE LANGUAGE ACTUALLY USED BY CONGRESS, TO SUGGEST THAT THE GENERIC
WORD "PERSON" IN ^ 1983 WAS INTENDED TO HAVE A BIFURCATED APPLICATION
TO MUNICIPAL CORPORATIONS DEPENDING ON THE NATURE OF THE RELIEF SOUGHT
AGAINST THEM.  SINCE, AS THE COURT HELD IN MONROE, "CONGRESS DID NOT
UNDERTAKE TO BRING MUNICIPAL CORPORATIONS WITHIN THE AMBIT OF" ^ 1983,
ID., AT 187, THEY ARE OUTSIDE OF ITS AMBIT FOR PURPOSES OF EQUITABLE
RELIEF AS WELL AS FOR DAMAGES.  THE DISTRICT COURT WAS THEREFORE WRONG
IN CONCLUDING THAT IT HAD JURISDICTION OF APPELLEES' COMPLAINTS UNDER
1343. 

AS PREVIOUSLY NOTED, AFTER THE COMPLAINTS HAD BEEN FILED AND ISSUE
JOINED, THE ATTORNEY GENERAL OF WISCONSIN WAS ALLOWED TO INTERVENE AS A
PARTY DEFENDANT IN THE ACTIONS.  THE DISTRICT COURT, HAVING CONCLUDED
THAT IT HAD JURISDICTION TO ENTERTAIN THE ORIGINAL COMPLAINTS UNDER ^
1343, UNDERSTANDABLY DID NOT ADDRESS ITSELF TO THE QUESTION OF WHETHER
THE INTERVENTION OF THE ATTORNEY GENERAL AS A PARTY WOULD CURE THE
JURISDICTIONAL DEFECT WHICH WE NOW FIND TO EXIST IN APPELLEES'
COMPLAINTS.  THE DISTRICT COURT ALSO OBSERVED THAT "WERE NOT CIVIL
RIGHTS JURISDICTION PROPER, EACH OF THE PLAINTIFFS HEREIN WOULD BE ABLE
TO ASSERT THE NECESSARY . . . CONTROVERSY REQUIREMENT OF TITLE 28
U.S.C. ^ 1331."  346 F. SUPP., AT 50.  BUT ALTHOUGH APPELLEES IN THE
RACINE DENIALS ALLEGED JURIDICTION PURSUANT TO 28 U.S.C. ^ 1331 AS WELL
AS ^ 1343, AND IN EACH COMPLAINT THERE WAS AN ALLEGATION OF AN
INVESTMENT IN A TAVERN OF A LEAST $20,000, THE DEFENDANT MUNICIPAL
CORPORATIONS ANSWERED BY PUTTING THE APPELLEES TO THEIR PROOF AS TO THE
AMOUNT IN CONTROVERSY.  SINCE THE CASES WERE SUBMITTED AND DECIDED ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT AND STIPULATIONS OF FACT, AND NO
STIPULATION AS TO THE AMOUNT IN CONTROVERSY WAS FILED, WE CANNOT SAY ON
THIS STATE OF THE RECORD WHETHER OR NOT JURISDICTION OVER THE
COMPLAINTS WAS AFFIRMATIVELY ESTABLISHED.  SEE HAGUE V. CIO, 307 U.S.
496, 507 - 508 (1939), AND CASES THEREIN CITED.  WITH RESPECT TO THE
KNEOSHA DENIALS, THERE WAS A STIPULATION AS TO JURISDICTIONAL AMOUNT IN
THE PROCEEDINGS BEFORE THE SINGLE-JUDGE DISTRICT COURT, AND AN
ALLEGATION OF THE REQUISITE JURISDICTIONAL AMOUNT IN THE AMENDED
COMPLAINT, WHICH FOR THE FIRST TIME CHALLANGED THE CONSTITUTIONAL
VALIDITY OF THE WISCONSIN STATUTORY LICENSING SCHEME.  NO ANSWER WAS
FILED TO THE AMENDED COMPLAINT PRIOR TO THE ENTRY OF JUDGMENT BY THE
DISTRICT COURT. 

WE HAVE HAD THE BENEFIT OF NEITHER BRIEFS, ARGUMENTS, NOR EXPLICIT
CONSIDERATION BY THE DISTRICT COURT OF THE JURISDICTIONAL QUESTIONS
PRESENTED BY THE INTERVENTION OF THE ATTORNEY GENERAL AS A PARTY, AND
THE AVAILABILITY OF ^ 1331 JURISDICTION IN VIEW OF THE STATE OF THE
RECORD BELOW.  WE THEREFORE REMAND THE CASE TO THE DISTRICT COURT FOR
CONSIDERATION OF THESE ISSUES. 

        II 

APPELLEES' LICENSES HAVE BEEN NEITHER REVOKED NOR SUSPENDED. 

[[HC515'(ORIGINAL DOCUMENT PAGE 515)'  THEIR CLAIM OF DEPRIVATION OF
FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS RIGHTS ARISES FORM THE
FAILURE OF THE CITIES OF KENOSHA AND RACINE TO HOLD FULLBLOWN ADVERSARY
HEARINGS BEFORE REFUSING TO RENEW THEIR ONE-YEAR LICENSES.  OUR
DECISONS LAST YEAR IN BOARD OF REGENTS V. ROTH, 408 U.S. 564 (1972),
AND PERRY V. SINDERMANN, 408 U.S. 593 (1972), DISCUSSED THE NATURE OF
"LIBERTY" AND "PROPERTY" THAT IS PROTECTED AGAINST DENIAL WITHOUT DUE
PROCESS BY THE FOURTEENTH AMENDMENT.  THE DISTRICT COURT DID NOT
DISCUSS THESE RECENT CASES, AND IT FOLLOWED, IN PART, THE DECISION OF
THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT WHICH WAS REVERSED IN
ROTH.  IT, THEREFORE, MADE NO EVALUATION OF "PROPERTY"  OF "LIBERTY"
INTERESTS WHICH MIGHT REQUIRE A DUE PROCESS HEARING, OR OF THE NATURE
OF SUCH A HEARING IF IT WERE REQUIRED IN THE LIGHT OF OUR OPINIONS IN
ROTH, SUPRA, AND PERRY, SUPRA. 

THE DISTRICT COURT, ALSO, DID NOT HAVE THE BENEFIT OF THIS COURT'S
DECISION IN CALIFORNIA V. LARUE, 409 U.S. 109 (1972).  THERE WE HELD
AGAIN THAT WHILE THE TWENTY-FIRST AMENDMENT DID NOT ABROGATE A
REQUIREMENT OF PROCEDURAL DUE PROCESS, WISCONSIN V. CONSTANTINEAU, 400
U.S. 433 (1971), IT DID GRANT THE STATES BROAD AUTHORITY OVER THE
DISTRIBUTION AND SALE OF LIQUOR.  WE ALSO HELD THAT REGULATIONS
PROHIBITING THE SALE OF LIQUOR BY THE DRINK ON PREMISES WHERE THERE
WERE NUDE BUT NOT NECESSARILY OBSCENE PERFORMANCES WERE FACIALLY
CONSTITUTIONAL. 

WE, THEREFORE, DIRECT THE DISTRICT COURT, AFTER ADDRESSING THE ISSUE
OF JURISDICTION, TO RECONSIDER ITS JUDGMENT IN THE LIGHT OF ROTH,
PERRY, AND LARUE.  THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND
THE CAUSE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

    IT IS SO ORDERED. 

/1/  IN THE CASE OF APPELLEE MISURELLI, IT APPEARS FROM THE RECORD
THAT HIS PARTNER WAS ACTUALLY THE HOLDER OF THE EXPIRED LICENSE.  THE
DISTRICT COURT HELD, HOWEVER, THAT IN SUBSTANCE HIS APPLICATION WAS NO
DIFFERENT FROM THOSE OF THE OTHER APPELLEES. 

/2/  WIS. STAT. ANN. ^ 176.05 PROVIDES: 

"(1) AUTHORITY TO GRANT LICENSES.  EACH TOWN BOARD, VILLAGE BOARD
AND COMMON COUNCIL MAY GRANT RETAIL LICENSES, UNDER THE CONDITIONS AND
RESTRICTIONS IN THIS CHAPTER CONTAINED, TO SUCH PERSONS ENTITLED TO A
LICENSE UNDER THIS CHAPTER AS THEY DEEM PROPER TO KEEP PLACES WITHIN
THEIR RESPECTIVE TOWNS, VILLAGES, OR CITIES FOR THE SALE OF
INTOXICATING LIQUORS.  NO MEMBER OF ANY SUCH TOWN BOARD, VILLAGE BOARD
OR COMMON COUNCIL SHALL SELL DIRECTLY OR INDIRECTLY OR OFFER FOR SALE,
TO ANY PERSON, FIRM, OR CORPORATION THAT HOLDS OR APPLIES FOR ANY SUCH
LICENSE ANY BOND, MATERIAL, PRODUCT, OR OTHER MATTER OR THING THAT MAY
BE USED BY ANY SUCH LICENSEE OR PROSPECTIVE LICENSEE IN THE CARRYING ON
OF HIS OR ITS SAID BUSINESS." 

/3/  WIS. STAT. ANN. ^ 176.05 PROVIDES: 

"(8) ANNUAL LICENSE MEETINGS.  ALL TOWN AND VILLAGE BOARDS AND
COMMON COUNCILS, OR THE DULY AUTHORIZED COMMITTEES OF SUCH COUNCILS,
SHALL MEET NOT LATER THAN MAY 15 OF EACH YEAR AND BE IN SESSION FROM
DAY TO DAY THEREAFTER, SO LONG AS IT MAY BE NECESSARY, FOR THE PURPOSE
OF ACTING UPON SUCH APPLICATIONS FOR LICENSE AS MAY BE PRESENTED TO
THEM ON OR BEFORE APRIL 15, AND ALL APPLICATIONS FOR LICENSE SO FILED
SHALL BE GRANTED, ISSUED OR DENIED NOT LATER THAN JUNE 15 FOR THE
ENSUING LICENSE YEAR, PROVIDED THAT NOTHING SHALL PREVENT ANY GOVERNING
BODY FROM GRANTING ANY LICENSES WHICH ARE APPLIED FOR AT ANY OTHER
TIME.  AS SOON AS AN APPLICATION HAS BEEN APPROVED, A DUPLICATE COPY
THEREOF SHALL BE FORWARDED TO THE SECRETARY OF REVENUE.  NO APPLICATION
FOR A LICENSE WHICH IS IN EXISTENCE AT THE TIME OF SUCH ANNUAL LICENSE
MEETING SHALL BE REJECTED WITHOUT A STATEMENT ON THE CLERK'S MINUTES AS
TO THE REASONS FOR SUCH REJECTION."     /4/  THE RACINE DENIALS WERE
UTILIZED BY THE DISTRICT COURT AS THE BASIS FOR THE MAIN OPINION
HOLDING THE WISCONSIN SCHEME UNCONSTITUTIONAL AND THE OTHER CASES WERE
DECIDED ON THE BASIS OF THE MAIN OPINION.  WE ARE THEREFORE PRIMARILY
CONSIDERING THE FACTUAL BACKGROUND OF THE RACINE DENIALS IN OUR
DISPOSTION. 

/5/  NO SUCH STIPULATION WAS FILED FOR APPELLEE ROBERS, HOWEVER. 

/6/  SCHNELL V. CITY OF CHICAGO, 407 F.2D 1084 (CA7 1969), AND ADAMS
V. CITY OF PARK RIDGE, 293 F.2D 585 (CA7 1961). 

/7/  TITLE 28 U.S.C. ^ 1343 PROVIDES: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION AUTHORIZED BY LAW TO BE COMMENCED BY ANY PERSON:

        .         .          .          . 

"(3) TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,
STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT,
PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED STATES
OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF CITIZENS OR OF
ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES . . ." 

/8/  TITLE 42 U.S.C. ^ 1983 PROVIDES: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

/9/  THE COURT IN SCHNELL V. CITY OF CHICAGO, SUPRA, SIMPLY FOLLOWED
THE PREVIOUS CIRCUIT DECISION IN ADAMS V. CITY OF PARK RIDGE, SUPRA,
WITH NO INDEPENDENT ANALYSIS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING. 

ALTHOUGH I JOIN THE OPINION OF THE COURT, I WOULD ADD THAT I FIND
UNIMPEACHABLY CORRECT THE DISTRICT COURT'S CONCLUSION THAT APPELLANTS
FAILED TO COMPLY WITH THE REQUIREMENTS OF THE DUE PROCESS CLAUSE IN
DENYING RENEWAL OF APPELLEES' LIQUOR LICENSES.  NEVERTHELESS, SINCE THE
DEFENDANTS NAMED IN THE COMPLAINTS WERE THE MUNICIPALITIES OF KENOSHA
AND RACINE, JURISDICTION CANNOT BE BASED ON 28 U.S.C. ^ 1343.  MOOR V.
COUNTY OF ALAMEDA, 411 U.S. 693 (1973); MONROE V. PAPE, 365 U.S. 167
(1961).  APPELLEES DID ASSERT 28 U.S.C. ^ 1331 AS AN ALTERNATIVE GROUND
OF JURISDICTION, BUT I AGREE WITH THE COURT'S CONCLUSION THAT EXISTENCE
OF THE REQUISITE AMOUNT IN CONTROVERSY IS NOT, ON THIS RECORD, CLEARLY
ESTABLISHED.  IF APPELLEES CAN PROVE THEIR ALLEGATION THAT AT LEAST
$10,000 IS IN CONTROVERSY, THEN ^ 1331 JURISDICTION IS AVAILABLE, BELL
V. HOOD, 327 U.S. 678 (1946); CF. BIVENS V. SIX FED. NARCOTICS AGENTS,
403 U.S. 388 (1971), AND THEY ARE CLEARLY ENTITLED TO RELIEF. 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I HAVE EXPRESSED MY DOUBTS IN MOOR V. COUNTY OF ALAMEDA, 411 U.S.
693, 722, THAT OUR DECISION IN MONROE V. PAPE, 365 U.S. 167, BARS
EQUITABLE RELIEF AGAINST A MUNICIPALITY.  IN THAT CASE THE LEGISLATIVE
HISTORY* ON WHICH THAT CONSTRUCTION OF "PERSON" AS USED IN 42 U.S.C.  ^
1983 WAS BASED RELATED TO THE FEAR OF MULCTING MUNICIPALITIES WITH
DAMAGE AWARDS FOR UNAUTHORIZED ACTS OF ITS POLICE OFFICERS.  MONROE V.
PAPE MAY BE READ AS CONTAINING DICTA THAT A REMEDY BY WAY OF
DECLARATORY RELIEF OR BY INJUNCTION IS BARRED BY ^ 1983 AS WELL AS
SUITS FOR DAMAGES.  YET I DO NOT THINK WE SHOULD DECIDE THAT QUESTION
WITHOUT FULL BRIEFING AND CONSIDERED ARGUMENT. 

I DO, HOWEVER, CONCUR IN A REMAND FOR RECONSIDERATION BY THE
DISTRICT COURT IN LIGHT OF BOARD OF REGENTS V. ROTH, 408 U.S. 564,
PERRY V. SINDERMANN, 408 U.S. 593, AND CALIFORNIA V. LARUE, 409 U.S.
109. 

[[DOP

        APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING IN

           PART 

THE HOLDING IN MONROE V. PAPE THAT MUNICIPALITIES ARE NOT SUBJECT TO
SUITS FOR DAMAGES UNDER ^ 1983 WAS BASED LARGELY ON CONGRESS'
REJECTION OF THE SHERMAN AMENDMENT, WHICH WOULD HAVE PROVIDED
COMPENSATION FOR INDIVIDUALS FROM THE COUNTY, CITY, OR PARISH FOR ANY
DAMAGE CAUSED BY RIOTS, ETC.  TWO THEORIES WERE EXPRESSED IN THE
DEBATES FOR REJECTING THE AMENDMENT. 

THE FIRST WAS THE NOTION THAT CIVIL LIABILITY FOR DAMAGES MIGHT
DESTROY OR PARALYZE LOCAL GOVERNMENTS.  ALSO, IT WAS THOUGHT UNJUST
THAT LOCAL GOVERNMENTS (AND INDIRECTLY THE CITIZENRY AT LARGE) SHOULD
BE SUBJECT TO DAMAGES WHEN THEY BORE NO RESPONSIBILITY.  ALTHOUGH THE
SENATE PASSED THE AMENDMENT, SENATOR STEVENSON STATED IN OPPOSITION: 

 "THIS AMENDMENT WHOLLY IGNORES HE MUNICIPAL LIABILITY CREATED

  BY THE OMISSION OF DIRECT, ABSOLUTE CORPORATE DUTY.  WE ARE NOW,

  FOR THE FIRST TIME, PRESENTED WITH AN ENACTMENT WHICH UNDERTAKES

  TO CREATE A CORPORATE LIABILITY FOR PERSONAL INJURY WHICH NO

  PRUDENCE OR FORESIGHT COULD HAVE PREVENTED.  . . 

     "BUT, MR. PRESIDENT, THIS AMENDMENT IS CLEARLY

  UNCONSTITUTIONAL.  IF IT IS ATTEMPTED TO BE CARRIED OUT IT WILL

  DESTROY THE MUNICIPAL GOVERNMENT OF EVERY CITY AND THE LOCAL

  GOVERNMENT OF EVERY COUNTY WHERE THIS LIABILITY IS CREATED . . .

  LET A JUGMENT BE RECOVERED AGAINST ANY OF OUR CITIES IN THE EAST

  OR WEST AND A LIEN IS BY THIS AMENDMENT CREATED NOT ONLY UPON THE

  MUNICIPAL PROPERTY OF SUCH CITY, BUT UPON EVERY DOLLAR IN THE

  CITY TREASURY.  THE CREDIT OF THE CITY, THE MEANS TO DISCHARGE

  ITS CONTRACTS AND ITS MOST SOLEMN OBLIGATIONS ARE BY THE

  OPERATION OF THIS ACT TO BE APPLIED TO SUCH JUDGMENT. 

     "I HAVE HEARD NO REASON FOR SUCH A LIEN.  IF CARRIED OUT TO
ITS

  FULL EXTENT, IT MUST PROVE UTTERLY DESTRUCTIVE OF THE STATE

  MUNICIPALITIES.  AND WHENCE DOES THE FEDERAL GOVERNMENT DERIVE

  ITS POWER IN ANY MANNER OR FORM TO TOUCH THE REVENUES OF THE

  STATE GOVERNMENTS OR ANY OF ITS AGENCIES?  . . ."  CONG. GLOBE,

  42D CONG., 1ST SESS., 762. 

SENATORS CASSERLY AND BAYARD EXPRESSED SIMILAR CONCERNS.  ID., AT 763 -
764, 776. 

IN THE HOUSE, CONGRESSMAN KERR STATED: 

     "THERE IS, THEREFORE, A TOTAL AND ABSOLUTE ABSENCE OF NOTICE,

  CONSTRUCTIVE OR IMPLIED, WITHIN ANY DECENT LIMITS OF LAW OR

  REASON.  AND THE BILL ITSELF IS SIGNIFICANTLY SILENT ON THE

  SUBJECT OF NOTICE TO THESE COUNTIES AND PARISHES OR CITIES. 

  UNDER THIS SECTION IT IS NOT REQUIRED, BEFORE LIABILITY SHALL

  ATTACH, THAT IT SHALL BE KNOWN THAT THERE WAS ANY INTENTION TO

  COMMIT THESE CRIMES, SO AS TO FASTEN LIABILITY JUSTLY UPON THE

MUNICIPALITY.  . .  IT TAKES THE PROPERTY OF ONE AND GIVES IT TO

  ANOTHER BY MERE FORCE, WITHOUT RIGHT, IN THE ABSENCE OF GUILT OR

  KNOWLEDGE . ..."  ID., AT 788. 

SEE ALSO ID., AT 791 (STATEMENT OF CONG. WILLARD).  AND CONGRESSMAN
FARNSWORTH WAS CONCERNED THAT THE AMENDMENT WOULD "PUT THE HAND OF THE
NATIONAL GOVERNMENT INTO (LOCAL GOVERNMENT'S) TREASURY."  ID., AT 799. 

THERE WAS ANOTHER STRAIN, HOWEVER.  CONGRESSMAN BROOKS VIEWED THE
AMENDMENT AS RAISING THE OLD STRUGGLE BETWEEN THE FEDERALISTS AND THE
DEMOCRATS.  ID., AT 790.  IN THE WORDS OF CONGRESSMAN POLAND, ONE OF
THE HOUSE MANAGERS OF THE CONFERENCE COMMITTEE, "(WITH THESE LOCAL
SUBDIVISIONS WE HAVE NOTHING TO DO.  WE CAN IMPOSE NO DUTY UPON THEM;
WE CAN IMPOSE NO LIABILITY UPON THEM IN ANY MANNER WHATEVER."  ID., AT
793.  HE STATED FURTHER: 

"BUT THE ENFORCING A LIABLITY, EXISTING BY THEIR OWN CONTRACT, OR BY
A STATE LAW, IN THE COURTS, IS A VERY WIDELY DIFFERENT THING FROM
DEVOLVING A NEW DUTY OR LIABILITY UPON THEM BY THE NATIONAL GOVERNMENT,
WHICH HAS NO POWER EITHER TO CREATE OR DESTROY THEM, AND NO POWER OR
CONTROL OVER THEM WHATEVER.  . . ".  . . COUNTIES AND TOWNS ARE
SUBDIVISIONS OF THE STATE GOVERNMENT, AND EXERCISE IN A LIMITED SPHERE
AND EXTENT THE POWERS OF THE STATE DELEGATED TO THEM; THEY ARE CREATED
BY THE STATE FOR THE PURPOSE OF CARRYING OUT THE LAWS AND POLICY OF THE
STATE, AND ARE SUBJECT ONLY TO SUCH DUTIES AND LIABILITIES AS STATE
LAWS IMPOSE UPON THEM."  ID., AT 794.  AFTER THE HOUSE FINALLY HAD
DEFEATED THE SHERMAN AMENDMENT AND THE CONFERENCE SUBSTITUTE FOR THE
AMENDMENT, POLAND STATED: 

"I DID UNDERSTAND FROM THE ACTION AND VOTE OF THE HOUSE THAT THE
HOUSE HAD SOLEMNLY DECIDED THAT IN THEIR JUDGMENT CONGRESS HAD NO
CONSTITUTIONAL POWER TO IMPOSE ANY OBLIGATION UPON COUNTY AND TOWN
ORGANIZATIONS, THE MERE INSTRUMENTALITY FOR THE ADMINISTRATION OF STATE
LAW."  ID., AT 804.  SEE ALSO ID., AT 795 (STATEMENT OF CONG.
BURCHARD), 799 (STATEMENT OF CONG. FARNSWORTH). 

TO THE EXTENT THAT THE SHERMAN AMENDMENT WAS DIRECTED ONLY AT
LIABILITY FOR DAMAGES AND THE DEVASTATING EFFECT THOSE DAMAGES MIGHT
HAVE ON MUNICIPALITIES, IT SEEMS THAT THE DEFEAT OF THE AMENDMENT DOES
NOT AFFECT THE EXISTENCE VEL NON OF AN EQUITABLE ACTION.  ONE MAY, OF
COURSE, ARGUE THAT THE SWEEPING STATEMENTS OF POLAND AND OTHERS THAT
CONGRESS HAD NO CONSTITUTIONAL POWER (HOWEVER DEFECTIVE THAT ARGUMENT
IS IN LIGHT OF DEVELOPED CONSTITUTIONAL DOCTRINE) TO AUTHORIZE ANY
ACTION AGAINST A SUBDIVISION OF STATE GOVERNMENT INDICATED A PURPOSE TO
GO THE WHOLE WAY AND NOT ALLOW EVEN INJUNCTIVE RELIEF AGAINST A
MUNICIPALITY.  BUT THIS IS A MATTER WHICH THE COURT HAS NEVER FACED. 

LEROY L. DALTON, ASSISTANT ATTORNEY GENERAL OF WISCONSIN, ARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE ROBERT W. WARREN,
ATTORNEY GENERAL, MICHAEL S. FISHER, AND EDWARD A. KRENZKE. 

JAMES A. WALRATH ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES
SLEEPY'S INC., ET AL.
..END :























LOGUE ET AL. V. UNITED STATES, 412 U.S. 521 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT 

     NO. 72 - 656.  ARGUED APRIL 24, 1973 -- DECIDED JUNE 11, 1973;

  459 F.2D 408 AND 463 F.2D 1340, VACATED AND REMANDED. 


    PETITIONERS, CLAIMING THAT THEIR SON'S SUICIDE WHILE HE WAS

  CONFINED AS A FEDERAL PRISONER IN A COUNTY JAIL WAS PROXIMATELY

  CAUSED BY THE NEGLIGENCE OF GOVERNMENT AGENTS AND EMPLOYEES,

  BROUGHT SUIT UNDER THE FEDERAL TORT CLAIMS ACT, WHICH ESTABLISHES

  GOVERNMENT LIABILITY FOR NEGLIGENT ACTS OR OMISSIONS OF AN

  "EMPLOYEE OF THE GOVERNMENT," DEFINED, INTER ALIA, AS A PERSON

  OFFICIALLY "ACTING ON BEHALF OF A FEDERAL AGENCY . . . WITH OR

  WITHOUT COMPENSATION."  THE ACT EXCLUDES ANY CONTRACTOR WITH THE

  UNITED STATES FROM THE DEFINITION OF FEDERAL AGENCY.  THOUGH

 FINDING THAT THE COUNTY HAD CONTRACTED WITH THE FEDERAL

 GOVERNMENT TO HOUSE FEDERAL PRISONERS IN ITS JAIL, THE DISTRICT

  COURT HELD THAT THE GOVERNMENT WAS LIABLE ON THE GROUNDS THAT THE

  SHERIFF'S EMPLOYEES NEGLIGENTLY FAILED TO MAINTAIN ADEQUATE

  SURVEILLANCE OF THE DECEDENT (WHO HAD ATTEMPTED SUICIDE WHILE

  INITIALLY INCARCERATED) AND THAT THE DEPUTY UNITED STATES MARSHAL

  NEGLIGENTLY FAILED SPECIFICALLY TO ARRANGE FOR CONSTANT

  SURVEILLANCE.  THE COURT OF APPEALS REVERSED ON THE GROUNDS THAT

  UNDER THE "CONTRACTOR" EXCLUSION THE UNITED STATES WAS NOT

  ACCOUNTABLE FOR THE NEGILGENCE OF THE SERIFF'S EMPLOYEES AND

  THOSE EMPLOYEES WERE NOT ACTING ON BEHALF OF A FEDERAL AGENCY IN

  AN OFFICIAL CAPACITY WITHIN THE MEANING OF THE ACT.  HELD: 

     1.  THE COURT OF APPEALS CORRECTLY CONCLUDED THAT, CONTRARY TO

  PETITIONERS' CONTENTION, THE DEPUTY MARSHAL HAD NO AUTHORITY TO

  CONTROL THE ACTIVITIES OF THE SHERIFF'S EMPLOYEES AND THAT THE

  JAIL WAS A "CONTRACTOR," NOT A "FEDERAL AGENCY," WITHIN THE

  MEANING OF THE ACT; AND STATUTORY AUTHORIZATION FOR THE HOUSING

  OF FEDERAL PRISONERS IN STATE FACILITIES CLEARLY CONTEMPLATED

  THAT THE DAY-TO-DAY OPERATION OF THE CONTRACTOR'S FACILITES WAS

  TO BE IN THE CONTRACTOR'S, NOT THE GOVERNMENT'S, HANDS.  PP. 526

  - 530. 

     2.  PETITIONERS' ALTERNATIVE CONTENTION THAT EVEN THOUGH THE

  SHERIFF'S EMPLOYEES MIGHT NOT BE "EMPLOYEES"  OF A FEDERAL

  AGENCY, THEY MIGHT NONETHELESS BE "ACTING ON BEHALF OF A FEDERAL

  AGENCY IN AN OFFICIAL CAPACITY"  AND THUS "EMPLOYEES) OF THE

  GOVERNMENT" WITHIN THE MEANING OF THE ACT IS NOT CONSISTENT WITH

  THE LEGISLATIVE PURPOSE OF THE ACT.  PP. 530 - 532. 

     3.  THE COURT OF APPEALS, NOT HAVING GIVEN CONSIDERATION TO
THE

QUESTION OF THE DEPUTY MARSHAL'S NEGLIGENCE APART FROM OTHER

  ISSUES, SHOULD ADDRESS ITSELF TO THAT QUESTION ON REMAND.  PP.

  532 - 533. 

REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  STEWART
AND MARSHALL, JJ., FILED A SEPARATE STATEMENT. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

[[HC522'(ORIGINAL DOCUMENT PAGE 522)' 

REAGAN LOGUE, A FEDERAL PRISONER CONFINED IN A COUNTY JAIL PENDING
TRIAL, FASHIONED A NOOSE FROM A BANDAGE COVERING A LACERATION ON HIS
LEFT ARM AND HANGED HIMSELF.  HIS MOTHER AND ADOPTIVE FATHER SUED THE
UNITED STATES FOR DAMAGES UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C.
^ 1346(B), /1/  CLAIMING THAT NEGLIGENCE ON THE PART OF GOVERNMENT
AGENTS AND EMPLOYEES PROXIMATELY CAUSED THE DEATH OF THEIR SON.  THE
DISTRICT COURT DETERMINED THAT LOGUE'S DEATH WAS THE RESULT OF
NEGLIGENCE FOR WHICH THE UNITED STATES WAS LIABLE, AND AWARDED
DAMAGES.  334 F. SUPP. 322 (SD TEX. 1971).  THE COURT OF APPEALS
REVERSED THIS JUDGMENT, 459 F. 2D 408 (CA 5 1972), REHEARING EN BANC
DENIED, 463 F. 2D 1340 (CA5 1972). 

[[HC523'(ORIGINAL DOCUMENT PAGE 523)'  WE GRANTED CERTIORARI IN
ORDER TO CONSIDER THE APPLICATION TO THIS CASE OF THE ACT'S EXCLUSION
OF EMPLOYEES OF A "CONTRACTOR WITH THE UNITED STATES."  28 U.S.C. ^
2671. 

ON MAY 22, 1968, REAGAN LOGUE WAS ARRESTED BY DEPUTY UNITED STATES
MARSHAL DEL BOWERS ON A BENCH WARRANT CHARGING LOGUE WITH CONSPIRACY TO
SMUGGLE 229 POUNDS OF MARIHUANA INTO THE UNITED STATES.  AFTER A
HEARING, HE WAS TAKEN TO THE NUECES COUNTY JAIL IN CORPUS CHRISTI,
TEXAS, TO AWAIT TRIAL.  THIS JAIL IS ONE OF SOME 800 INSTITUTIONS
OPERATED BY STATE AND LOCAL GOVERNMENTS THAT CONTRACT WITH THE FEDERAL
BUREAU OF PRISONS TO PROVIDE FOR THE SAFEKEEPING, CARE, AND SUBSISTENCE
OF FEDERAL PRISONERS.  /2/ 

ON THE DAY AFTER HIS INITIAL INCARCERATION LOGUE ATTEMPTED TO COMMIT
SUICIDE BY SLASHING VEINS IN HIS LEFT ARM.  HE WAS IMMEDIATELY TAKEN TO
A HOSPITAL EMERGENCY ROOM FOR TREATMENT OF THE LACERATION.  WHILE THE
WOUND TURNED OUT TO BE RELATIVELY MINOR, LOGUE WAS ADMITTED TO THE
HOSPITAL'S PSYCHIATRIC FLOOR BECAUSE OF THE ATTENDING DOCTOR'S
OBSERVATION THAT HE WAS ACTIVELY HALLUCINATING AND OUT OF TOUCH WITH
REALITY.  THE PSYCHIATRIST WHO LATER TOOK CHARGE OF THE CASE,
RECOGNIZING LOGUE'S SUICIDAL TENDENCIES, RECOMMENDED TO FEDERAL
OFFICIALS THAT HE BE COMMITTED TO A MEDICAL FACILITY FOR
REHABILITATION.  /3/ 

ON THE FOLLOWING DAY, MAY 24, THE DISTRICT COURT ORDERED THAT LOGUE
BE TRANSFERRED TO A FEDERAL MEDICAL FACILITY PURSUANT TO 18 U.S.C. ^
4244.  WHILE AWAITING THE PROCESSING OF PAPERS AND OTHER STEPS
PREPARATORY TO THE ACTUAL TRANSFER, HOWEVER, FEDERAL OFFICIALS MADE
ARRANGEMENT TO TRANSFER LOGUE BACK TO THE NUECES COUNTY JAIL.  /4/
BEFORE THE TRANSFER, BOWERS INFORMED THE CHIEF JAILER OF LOGUE'S
SUICIDAL TENDENCIES AND REQUESTED THAT HE PREPARE FOR LOGUE A SPECIAL
CELL REMOVED OF ALL DANGEROUS OBJECTS THAT MIGHT BE USED IN ANOTHER
SUICIDE ATTEMPT.  SUCH A CELL WAS PREPARED BY THE JAIL AUTHORITIES, AND
LOGUE WAS PLACED IN IT.  BOWERS MADE NO SPECIFIC ARRANGEMENTS FOR
CONSTANT SURVEILLANCE OF LOGUE ONCE HE WAS CONFINED, AND THE JAIL
EMPLOYEES MADE ONLY PERIODIC CHECKS WHEN THEY WERE ON THAT FLOOR FOR
SOME OTHER REASON.  THE DAY AFTER HIS RETURN TO THE JAIL, LOGUE REMOVED
THE KERLIX BANDAGE THAT HAD BEEN APPLIED TO THE LACERATION ON HIS LEFT
ARM AND HANGED HIMSELF. 

[[HC525'(ORIGINAL DOCUMENT PAGE 525)' 

THE DISTRICT COURT FOUND THAT THERE HAD BEEN A CONTRACT BETWEEN THE
GOVERNMENT AND NUECES COUNTY WHEREBY THE LATTER UNDERTOOK TO HOUSE
FEDERAL PRISONERS IN THE COUNTY JAIL AT CORPUS CHRISTI.  THAT COURT
NONETHELESS FOUND THAT THE UNITED STATES WAS LIABLE FOR THE NEGLIGENCE
OF THE EMPLOYEES OF THE NUECES COUNTY SHERIFF AS WELL AS FOR THE
NEGLIGENCE OF ITS OWN EMPLOYEE.  THE COURT FOUND THE FORMER TO HAVE
BEEN NEGLIGENT BECAUSE THEIR SURVEILLANCE OF LOGUE WAS "INADEQUATE,"
AND IT FOUND BOWERS TO HAVE BEEN NEGLIGENT IN FAILING TO MAKE "SPECIFIC
ARRANGEMNTS . . . FOR CONSTANT SURVEILLANCE OF THE PRISONER." 

THE COURT OF APPEALS REVERSED THE JUDGMENT OF THE DISTRICT COURT,
STATING IN ITS OPINION THAT: 

"WE INTERPRET (18 U.S.C. ^ 4002) AS FIXING THE STATUS OF THE NUECES
COUNTY JAIL AS THAT OF A CONTRACTOR.'  TITLE 28 U.S.C., SEC. 2671 . . .
THIS INSULATES THE UNITED STATES FROM LIABILITY UNDER THE FTCA FOR THE
NEGILGENT ACTS OF OMISSIONS OF THE JAIL'S EMPLOYEES.  WE FIND NO
SUPPORT IN THE RECORD FOR HOLDING THAT DEPUTY MARSHAL BOWERS HAD ANY
POWER OR AUTHORITY TO CONTROL ANY OF THE INTERNAL FUNCTIONS OF THE
NUECES COUNTY JAIL.  THE DEPUTY MARSHAL, ACCORDINGLY, VIOLATED NO DUTY
OF SAFEKEEPING WITH RESPECT TO THE DECEASED."  459 F.2D, AT 411  

THE FEDERAL TORT CLAIMS ACT MAKES THE UNITED STATES LIABLE FOR MONEY
DAMAGES "CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY
EMPLOYEE OF THE GOVERNMENT . . ."  28 U.S.C. ^ 1346(B).  SECTION 2671
OF TITLE 28 U.S.C. CONTAINS THE FOLLOWING DEFINITIONS: 

     "AS USED IN THIS CHAPTER AND SECTIONS 1346(B) AND 2401(B) OF

  THIS TITLE, THE TERM 'FEDERAL AGENCY' INCLUDES THE EXECUTIVE

  DEPARTMENTS, THE MILITARY DEPARTMENTS, INDEPENDENT

  ESTABLISHEMENTS OF THE UNITED STATES, AND CORPORATIONS PRIMARILY

  ACTING AS INSTRUMENTALITIES OR AGENCIES OF THE UNITED STATES, BUT

  DOES NOT INCLUDE ANY CONTRACTOR WITH THE UNITED STATES. 

     "'EMPLOYEE OF THE GOVERNMENT' INCLUDES OFFICERS OR EMPLOYEES
OF

  ANY FEDERAL AGENCY, MEMBERS OF THE MILITARY OR NAVAL FORCES OF

  THE UNITED STATES, AND PERSONS ACTING ON BEHALF OF A FEDERAL

  AGENCY IN AN OFFICIAL CAPACITY, TEMPORARILY OR PERMANENTLY IN THE

  SERVICE OF THE UNITED STATES, WHETHER WITH OR WITHOUT

COMPENSATION." 

FOR THE GOVERNMENT TO BE LIABLE FOR THE NEGLIGENCE OF AN EMPLOYEE OF
THE NUECES COUNTY JAIL, HE MUST BE SHOWN TO BE AN "EMPLOYEE OF THE
GOVERNMENT" AS THAT TERM IS USED IN THE FEDERAL TORT CLAIMS ACT. 
THOUGH PEITIONERS DO NOT ALWAYS DISTINGUISH BETWEEN THEIR TWO THEORIES,
THEY APPEAR TO CONTEND ALTERNATIVELY THAT THE NUECES COUNTY JAIL IS A
"FEDERAL AGENCY" BY REASON OF ITS CONTRACT FOR THE CARE OF FEDERAL
PRISONERS, OR THAT THE EMPLOYEES OF THE JAIL ARE "ACTING ON BEHALF OF"
THE BUREAU OF PRISONS OR THE GOVERNMENT IN PERFORMING SERVICES FOR
FEDERAL PRISONERS.  THE COURT OF APPEALS REJECTED THESE CONTENTIONS,
AND WE BELIEVE THAT IT WAS RIGHT IN DOING SO. 

WE READ THAT PORTION OF THE COURT OF APPEALS' OPINION QUOTED SUPRA
AS TREATING THE "CONTRACTOR" EXEMPTION FROM THE DEFINITION OF "FEDERAL
AGENCY" IN ^ 2671 AS ADOPTING THE COMMON-LAW DISTINCTION BETWEEN THE
LIABILITY OF AN EMPLOYER FOR THE NEGLIGENT ACTS OF HIS OWN EMPLOYEES
AND HIS LIABILITY FOR THE EMPLOYEES OF A PARTY WITH WHOM HE CONTRACTS
FOR A SPECIFIED PERFORMANCE. 

[[HC527'(ORIGINAL DOCUMENT PAGE 527)'  BOTH THE MODERN COMMON LAW AS
REFLECTED IN THE RESTATEMENT OF AGENCY /5/  AND THE LAW OF TEXAS /6/
MAKE THE DISTINCTION BETWEEN THE SERVANT OR AGENT RELATIONSHIP AND THAT
OF INDEPENDENT CONTRACTOR TURN ON THE ABSENCE OF AUTHORITY IN THE
PRINCIPAL TO CONTROL THE PHYSICAL CONDUCT OF THE CONTRACTOR IN
PERFORMANCE OF THE CONTRACT. 

IN MARYLAND V. UNITED STATES, 381 U.S. 41 (1965), ONE OF THE FACTORS
RELIED UPON BY THE COURT IN DETERMINING THAT BOTH MILITARY AND CIVILIAN
NATIONAL GUARD PERSONNEL WERE EMPLOYEES OF THE STATES, RATHER THAN OF
THE UNITED STATES, FOR PURPOSES OF THE FEDERAL TORT CLAIMS ACT, WAS THE
"SUPERVISION EXERCISED BY THE STATES OVER BOTH MILITARY AND CIVILIAN
PERSONNEL," ID., AT 53.  THE COURTS OF APPEALS THAT HAVE HAD OCCASION
TO DECIDE THE QUESTION APPEAR TO HAVE UNVARYINGLY HELD THAT THE
"CONTRACTOR WITH THE UNITED STATES" LANGUAGE OF ^ 2671 ADOPTS THE
TRADITIONAL DISTINCTION BETWEEN EMPLOYEES OF THE PRINCIPAL AND
EMPLOYEES OF AN INDEPENDENT CONTRACTOR WITH THE PRINCIPAL, AND TO HAVE
ALSO HELD THAT THE CRITICAL FACTOR IN MAKING THIS DETERMINATION IS THE
AUTHORITY OF THE PRINCIPAL TO CONTROL THE DETAILED PHYSICAL PERFORMANCE
OF THE CONTRACTOR. 

[[HC528'(ORIGINAL DOCUMENT PAGE 528)'  SEE, E. G., GOWDY V. UNITED
STATES, 412 F.2D 525, 534 (CA61969); EUTSLER V. UNITED STATES, 376 F.2D
634 (CA10 1967); YATES V. UNITED STATES, 365 F.2D 663 (CA4 1966); KIRK
V. UNITED STATES, 270 F.2D 110 (CA9 1959). 

PETITONERS CITE THE COMMENTARY TO THE RESTATEMENT (SECOND) OF TORTS
^ 409 (1965), TO THE EFFECT THAT THE COMMON-LAW DISTINCTION THAT
SHIELDS THE EMPLOYER FROM LIABILITY FOR INQUIRES CAUSED TO ANOTHER BY
THE NEGLIGENT ACT OF A CONTRACTOR OR HIS SERVANT IS SUBJECT TO SO MANY
EXCEPTIONS THAT IT IS THE GENERAL RULE "ONLY IN THE SENSE THAT IT IS
APPLIED WHERE NO GOOD REASON IS FOUND FOR DEPARTING FROM IT." 
CONGRESS, OF COURSE, COULD HAVE LEFT THE DETERMINATION AS TO WHOSE
NEGLIGENCE THE GOVERNMENT SHOULD BE LIABLE FOR UNDER THE FEDERAL TORT
CLAIMS ACT TO THE LAW OF THE STATE INVOLVED, AS IT DID WITH OTHER
ASPECTS OF LIABILITY UNDER THE ACT.  BUT IT CHOSE NOT TO DO THIS, AND
INSTEAD INCORPORATED INTO THE DEFINITIONS OF THE ACT THE EXEMPTION FROM
LIABILITY FOR INJURY CAUSED BY EMPLOYEES OF A CONTRACTOR.  WHILE THIS
CONGRESSIONAL CHOICE LEAVES THE COURTS FREE TO LOOK TO THE LAW OF TORTS
AND AGENCY TO DEFINE "CONTRACTOR," IT DOES NOT LEAVE THEM FREE TO
ABROGATE THE EXEMPTION THAT THE ACT PROVIDES. 

PETITIONERS SUGGEST THAT BECAUSE 18 U.S.C. ^ 4042 IMPOSED A DUTY ON
THE BUREAU OF PRISONS TO "PROVIDE FOR THE SAFEKEEPING, CARE, AND
SUBSISTENCE OF ALL PERSONS CHARGED WITH . . . OFFENSES AGAINST THE
UNITED STATES . . ."  THE NUECES COUNTY EMPLOYEES WHO WERE DISCHARGING
THE GOVERNMENT'S OBLIGATION BY CONTRACT SHOULD BE HELD TO BE EMPLOYEES
OF THE GOVERNMENT FOR PURPOSES OF LIABILITY UNDER THE ACT.  /7/  THIS
COURT HELD IN UNITED STATES V. MUNIZ, 374 U.S. 150 (1963), THAT A
BREACH OF THE DUTY IMPOSED ON THE GOVERNMENT BY 18 U.S.C. ^ 4042 WAS
ACTIONABLE UNDER THE ACT. 

[[HC529'(ORIGINAL DOCUMENT PAGE 529)'  BUT THE SAME PUBLIC LAW THAT
IMPOSED THIS DUTY ON THE GOVERNMENT ALSO AUTHORIZED THE GOVERNMENT TO
CONTRACT WITH STATE AND LOCAL AUTHORITIES TO PROVIDE SAFEKEEPING AND
CARE: 

     "FOR THE PURPOSE OF PROVIDING SUITABLE QUARTERS FOR THE

  SAFEKEEPING, CARE, AND SUBSISTENCE OF ALL PERSONS HELD UNDER

  AUTHORITY OF ANY ENACTMENT OF CONGRESS, THE DIRECTOR OF THE

  BUREAU OF PRISONS MAY CONTRACT, FOR A PERIOD NOT EXCEEDING THREE

  YEARS, WITH THE PROPER AUTHORITIES OF ANY STATE, TERRITORY, OR

  POLITICAL SUBDIVISION THEREOF, FOR THE IMPRISONMENT, SUBSISTENCE,

  CARE, AND PROPER EMPLOYMENT OF SUCH PERSONS. 

        .  .          .          . 

     "THE RATES TO BE PAID FOR THE CARE AND CUSTODY OF SAID PERSONS

  SHALL TAKE INTO CONSIDERATION THE CHARACTER OF THE QUARTERS

  FURNISHED, SANITARY CONDITIONS, AND QUALITY OF SUBSISTENCE AND

  MAY BE SUCH AS WILL PERMIT AND ENCOURAGE THE PROPER AUTHORITIES

  TO PROVIDE REASONABLY DECENT, SANITARY, AND HEALTHFUL QUARTERS

  AND SUBSISTENCE FOR SUCH PERSONS."  18 U.S.C. - 4002. 

THUS, CONGRESS NOT ONLY AUTHORIZED THE GOVERNMENT TO MAKE CONTRACTS
SUCH AS THE ONE HERE IN QUESTION, BUT RATHER CLEARLY CONTEMPLATED THAT
THE DAY-TO-DAY OPERATIONS OF THE CONTRACTOR'S FACILITIES WERE TO BE IN
THE HANDS OF THE CONTRACTOR, WITH THE GOVERNMENT'S ROLE LIMITED TO THE
PAYMENT OF SUFFICIENTLY HIGH RATES TO INDUCE THE CONTRACTOR TO DO A
GOOD JOB.  THE CONTRACT ENTERED INTO BETWEEN THE GOVERNMENT AND NUECES
COUNTY REFLECTS A SIMILAR DIVISION OF RESPONSIBLITY.  THE COUNTY
UNDERTAKES TO PROVIDE CUSTODY IN ACCORDANCE WITH THE BUREAU OF
PRISONS'"RULES AND REGULATIONS GOVERNING THE CARE AND CUSTODY OF
PERSONS COMMITTED" UNDER THE CONTRACT.  THESE RULES IN TURN SPECIFY
STANDARDS OF TREATMENT FOR FEDERAL PRISONERS, INCLUDING METHODS OF
DISCIPLINE, RULES FOR COMMUNICATING WITH ATTORNEYS, VISITATION
PROVILEGES, MAIL, MEDICAL SERVICES, AND EMPLOYMENT. 

[[HC530'(ORIGINAL DOCUMENT PAGE 530)'  BUT THE AGREEMENT GIVES THE
UNITED STATES NO AUTHORITY TO PHYSCIALLY SUPERVISE THE CONDUCT OF THE
JAIL'S EMPLOYEES; IT RESERVES TO THE UNITED STATES ONLY "THE RIGHT TO
ENTER THE INSTITUTION . . . AT REASONABLE HOURS FOR THE PURPOSE OF
INSPECTING THE SAME AND DETERMINING THE CONDITIONS UNDER WHICH FEDERAL
OFFENDERS ARE HOUSED." 

THE COURT OF APPELS' CONCLUSION THAT THE DEPUTY MARSHAL HAD NO
AUTHORITY TO CONTROL THE ACTIVITIES OF THE SHERIFF'S EMPLOYEES IS
SUPPORTED BY BOTH THE ENABLING STATUTE AND THE CONTRACT ACTUALLY
EXECUTED BETWEEN THE PARTIES.  WE AGREE WITH ITS RESULTANT HOLDING THAT
THE SHERIFF'S EMPLOYEES WERE EMPLOYEES OF A "CONTRACTOR WITH THE UNITED
STATES," AND NOT, THEREFORE, EMPLOYEES OF A "FEDERAL AGENCY." 

THE JUDGES OF THE COURT OF APPEALS WHO DISSENTED FROM THE DENIAL OF
REHEARING EN BANC POINTED OUT THAT PETITIONERS ALTERNATELY CONTENDED IN
THAT COURT, AS THEY DO HERE, THAT EVEN THOUGH THE SHERIFFS'  EMPLOYEES
MIGHT NOT BE "EMPLOYEES" OF A FEDERAL AGENCY, THEY MIGHT NONETHELESS BE
"ACTING ON BEHALF OF A FEDERAL AGENCY IN AN OFFICIAL CAPACITY . . ." 
463 F.2D, AT 1342.  IF PETITIONERS WERE SUCCESSFUL IN ESTABLISHING THIS
CONTENTION, OF COURSE AN EMPLOYEE OF THE NUECES COUNTY JAIL WOULD BE AN
"EMPLOYEE OF THE GOVERNMENT" UNDER ^ 2671 EVEN THOUGH HE WAS NOT AN
"EMPLOYEE" OF A FEDERAL AGENCY. 

THE LEGISLATIVE HISTORY TO WHICH WE ARE REFERRED BY THE PARTIES
SHEDS VIRTUALLY NO LIGHT ON THE CONGRESSIONAL PURPOSE IN ENACTING THE
"ACTING ON BEHALF OF" LANGUAGE OF ^ 2671.  THE LONG GESTATION PERIOD OF
THE ACT IN THE COMMITTEES OF CONGRESS HAS BEEN RECOUNTED IN DALEHITE V.
UNITED STATES, 346 U.S. 15, 24 - 30 (1953), AND THIS LENGTHY PERIOD MAY
HAVE SOMETHING TO DO WITH THE PAUCITY OF HELPFUL COMMITTEE REPORTS ON
THIS POINT.     [[HC531'(ORIGINAL DOCUMENT PAGE 531)'  ONE OF THE MORE
IMMEDIATE ANTECEDENTS OF THE BILL THAT CONGRESS ENACTED CONTAINED
IDENTICAL "ACTING ON BEHALF OF" LANGUAGE:  "AND PERSONS ACTING ON
BEHALF OF A FEDERAL AGENCY IN AN OFFICIAL CAPACITY, TEMPORARILY OR
PERMANENTLY IN THE SERVICE OF THE UNITED STATES, WHETHER WITH OR
WITHOUT COMPENSATION."  H. R. 5373, 77TH CONG., 2D SESS., ^ 101 (1942),
QUOTED IN HEARINGS ON H. R. 5373 AND H. R. 6463 BEFORE THE HOUSE
COMMITTEE ON THE JUDICIARY, 77TH CONG., 2D SESS., SER.  13, P. 1
(1942).  ONE OF THE APPENDICES TO THE HEARINGS ON THESE BILLS COMPARES
THE PROVISIONS OF H. R. 6463, CONTAINING THE "ACTING ON BEHALF OF"
LANGUAGE, WITH PREVIOUS DRAFTS, AND STATES THAT "'EMPLOYEE OF THE
GOVERNMENT' IN THE PRESENT BILL IS DEFINED TO INCLUDE UNCOMPENSATED OR
TEMPORARY OFFICERS OR EMPLOYEES OF THE UNITED STATES."  HEARINGS,
SUPRA, AT 58.  THE COMMITTEE'S OBSERVATION THUS AFFORDS SOME SUPPORT TO
THE GOVERNMENT'S CONTENTION THAT THE LANGUAGE IS DESIGNED TO COVER
SPECIAL SITUATIONS SUCH AS THE "DOLLAR-A-YEAR" MAN WHO IS IN THE
SERVICE OF THE GOVERNMENT WITHOUT PAY, OR AN EMPLOYEE OF ANOTHER
EMPLOYER WHO IS PLACED UNDER DIRECT SUPERVISION OF A FEDERAL AGENCY
PURSUANT TO CONTRACT OR OTHER ARRANGEMENT. 

  THE DISSENTING JUDGES IN THE COURT OF APPEALS EXPRESSED THE VIEW
THAT "WHEN THE GOVERNMENT DECIDES THAT A PARTICULAR INDIVIDUAL SHOULD
ASSUME OBLIGATIONS AND RESPONSIBILITIES VIRTUALLY IDENTICAL TO THOSE OF
A SALARIED FEDERAL EMPLOYEE, THERE MAY VERY WELL BE SOME PERSUASIVE
BASIS FOR THE SUGGESTION THAT SUCH AN INDIVIDUAL'S BREACH OF A SPECIFIC
STATUTORY DUTY OWED BY THE SALARIED EMPLOYEE TO A SPECIFIC CLASS OF
PERSONS SHOULD VISIT IDENTICAL LIABILITY UPON THE UNITED STATES."  463
F.2D, AT 1342 - 1343.  BUT WE ARE NOT PERSUADED THAT EMPLOYEES OF A
CONTRACTOR WITH THE GOVERNMENT, WHOSE PHYSICAL PERFORMANCE IS NOT
SUBJECT TO GOVERNMENTAL SUPERVISION, ARE TO BE TREATED AS "ACTING ON
BEHALF OF" A FEDERAL AGENCY SIMPLY BECAUSE THEY ARE PERFORMING TASKS
THAT WOULD OTHERWISE BE PERFORMED BY SALARIED EMPLOYEES OF THE
GOVERNMENT. 

[[HC532'(ORIGINAL DOCUMENT PAGE 532)'  IF THIS WERE TO BE THE LAW,
THE EXCLUSION OF CONTRACTORS FROM THE DEFINITION OF "FEDERAL AGENCY" IN
^ 2671 WOULD BE VIRTUALLY MEANINGLESS, SINCE IT WOULD BE A RARE
SITUATION INDEED IN WHICH AN INDEPENDENT CONTRACTOR WITH THE GOVERNMENT
WOULD BE PERFORMING TASKS THAT WOULD NOT OTHERWISE BE PERFORMED BY
SALARIED GOVERNMENT EMPLOYEES.  /8/ 

WHILE WE THEREFORE AGREE WITH THE CONCLUSION OF THE COURT OF APPEALS
THAT THE GOVERNMENT WAS NOT LIABLE FOR THE NEGLIGENCE OF THE EMPLOYEES
OF NUECES COUNTY, WE DISAGREE WITH ITS IMPLICIT DETERMINATION THAT SUCH
A CONCLUSION ENDS THE CASE.  FOR THE DISTRICT COURT IMPOSED LIABILITY
ON THE GOVERNMENT, NOT ONLY FOR THE NEGLIGENT ACTS OF EMPLOYEES OF THE
NUECES COUNTY SHERIFF, BUT ALSO FOR NEGLIGENT ACTS OF DEPUTY MARSHAL
BOWERS, WHO WAS CONCEDEDLY AN EMPLOYEE OF THE GOVERNMENT.  THE DISTRICT
COURT FOUND THAT BOWERS, KNOWING OF THE PRISONER'S SUICIDAL TENDENCIES,
SHOULD HAVE MADE "SPECIFIC ARRANGEMENTS . . . FOR CONSTANT SURVEILLANCE
OF THE PRISONER," AND THAT HIS FAILURE TO DO SO WAS NEGLIGENCE.  THE
COURT OF APPEALS IN THAT PORTION OF ITS OPINION QUOTED SUPRA, AT 525,
STATED THAT "(THE DEPUTY MARSHAL, ACCORDINGLY, VIOLATED NO DUTY OF
SAFEKEEPING WITH RESPECT TO THE DECREASED." 

[[HC533'(ORIGINAL DOCUMENT PAGE 533)'  459 F.2D, AT 411.  BUT THAT
CONCLUSION APPEARS TO US TO FOLLOW FROM THE COURT'S DISCUSSION OF THE
NATURE OF THE INTERGOVERNMENTAL RELATIONSHIP AND THE STATUS OF THE
SHERIFF'S EMPLOYEES RATHER THAN BEING A SEPARATE REJECTION OF THE
FINDING OF THE DISTRICT COURT THAT BOWERS HIMSELF WAS NEGLIGENT.  SINCE
THE COURT OF APPEALS THUS DID NOT CONSIDER THE DISTINCT QUESTION
REGARDING THE NEGLIGENCE OF BOWERS, WE BELIEVE THAT THE PARTIES'
ARGUMENTS ON THAT QUESTION SHOULD BE ADDRESSED IN THE FIRST INSTANCE TO
THE COURT OF APPEALS. 

WE THEREFORE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE FOR CONSIDERATION OF THE LIABILITY OF THE GOVERNMENT INSOFAR
AS THAT LIABILITY MAY BE BASED ON THE NEGLIGENCE OF DEPUTY MARSHAL
BOWERS. 

          IT IS SO ORDERED. 

/1/  "SUBJECT TO THE PROVISIONS OF CHAPTER 171 OF THIS TITLE, THE
DISTRICT COURTS, TOGETHER WITH THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF THE CANAL ZONE AND THE DISTRICT COURT OF THE VIRGIN
ISLANDS, SHALL HAVE EXCLUSIVE JURISDICTION OF CIVIL ACTIONS ON CLAIMS
AGAINST THE UNITED STATES, FOR MONEY DAMAGES, ACCRUING ON AND ATER
JANUARY 1, 1945, FOR INJURY OR LOST 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."  28 U.S.C. ^
1346(B). 

/2/  THE FEDERAL BUREAU OF PRISONS HAS STATUTORY AUTHORITY TO
CONTRACT WITH STATE PRISONS FOR THE HOUSING OF FEDERAL PRISONERS: 

"FOR THE PURPOSE OF PROVIDING SUITABLE QUARTERS FOR THE SAFEKEEPING,
CARE, AND SUBSISTENCE OF ALL PERSONS HELD UNDER AUTHORITY OF ANY
ENACTMENT OF CONGRESS, THE DIRECTOR OF THE BUREAU OF PRISONS MAY
CONTRACT, FOR A PERIOD NOT EXCEEDING THREE YEARS, WITH THE PROPER
AUTHORITIES OF ANY STATE, TERRITORY, OR POLITICAL SUBDIVISION THEREOF,
FOR THE IMPRISONMENT, SUBSISTENCE, CARE, AND PROPER EMPLOYMENT OF SUCH
PERSONS. 

"SUCH FEDERAL PRISONERS SHALL BE EMPLOYED ONLY IN THE MANUFACTURE OF
ARTICLES FOR, THE PRODUCTION OF SUPPLIES FOR, THE CONSTRUCTIONS OF, THE
STATE OR POLITICAL SUBDIVISION IN WHICH THEY ARE IMPRISONED. 

"THE RATES TO BE PAID FOR THE CARE AND CUSTODY OF SAID PERSONS SHALL
TAKE INTO CONSIDERATION THE CHARACTER OF THE QUARTERS FURNISHED,
SANITARY CONDITIONS, AND QUALITY OF SUBSISTENCE AND MAY BE SUCH AS WILL
PERMIT AND ENCOURAGE THE PROPER AUTHORITIES TO PROVIDE REASONABLY
DECENT, SANITARY, AND HEALTHFUL QUARTERS AND SUBSISTENCE FOR SUCH
PERSONS."  18 U.S.C. ^ 4002.  THE CONTRACT WITH THE NUECES COUNTY JAIL
INCORPORATES BY REFERENCE THE STANDARD OF CARE SET FORTH IN THIS
STATUTE. 

/3/  THERE WAS TESTIMONY THAT LOGUE HAD TWICE BEFORE MADE SUICIDE
ATTEMPTS. 

/4/  THERE WAS TESTIMONY AT TRIAL THAT IT NORMALLY TAKES ABOUT A
WEEK OR TWO AFTER A COMMITMENT ORDER HAS BEEN ENTERED BEFORE A PRISONER
CAN BE PHYSICALLY TRANSFERRED TO A MENTAL INSTITUTION.  THERE WAS ALSO
TESTIMONY THAT THIS PROCESS CAN BE EXPEDITED TO OBTAIN COMMITMENT AS
EARLY AS 24 HOURS AFTER AN ORDER HAS BEEN SIGNED. 

/5/  RESTATEMENT (SECOND) OF AGENCY ^ 2 (1958): 

"(1) A MASTER IS A PRINCIPAL WHO EMPLOYS AN AGENT TO PERFORM SERVICE
IN HIS AFFAIRS AND WHO CONTROLS OR HAS THE RIGHT TO CONTROL THE
PHYSICAL CONDUCT OF THE OTHER IN THE PERFORMANCE OF THE SERVICE. 

"(2) A SERVANT IS AN AGENT EMPLOYED BY A MASTER TO PERFORM SERVICE
IN HIS AFFAIRS WHOSE PHYSICAL CONDUCT IN THE PERFORMANCE OF THE SERVICE
IS CONTROLLED OR IS SUBJECT TO THE RIGHT TO CONTROL BY THE MASTER. 

"(3) AN INDEPENDENT CONTRACTOR IS A PERSON WHO CONTRACTS WITH
ANOTHER TO DO SOMETHING FOR HIM BUT WHO IS NOT CONTROLLED BY THE OTHER
NOR SUBJECT TO THE OTHER'S RIGHT TO CONTROL WITH RESPECT TO HIS
PHYSICAL CONDUCT IN THE PERFORMANCE OF THE UNDERTAKING.  HE MAY OR MAY
NOT BE AN AGENT." 

/6/  E. G., GREAT WESTERN DRILLING CO. V. SIMMONS, 157 TEX. 268, 302
S. W. 2D 400 (1957). 

/7/  THIS ARGUMENT IS ALSO PUT IN TERMS OF A "NON-DELEGABLE DUTY"
OWED BY THE GOVERNMENT TO A PRISONER UNDER 18 U.S.C. ^ 4042. 

/8/  THE TWO COURTS OF APPEALS' CASES RELIED UPON BY PETITIONERS
INVOLVED FINDINGS OF CONTROL BY THE GOVERNMENT THAT ARE CONTRARY TO THE
DETERMINATION OF THE COURT OF APPEALS IN THIS CASE.  IN CLOSE V. UNITED
STATES, 130 U.S. APP. D. C. 125, 397 F.2D 686 (1968), THE COURT
REVERSED A SUMMARY JUDGMENT IN FAVOR OF THE GOVERNMENT, OBSERVING THAT
THERE WAS NO REASON TO ASSUME THAT THE ATTORNEY GENERAL WAS WITHOUT
POWER TO SUPERVISE THE DISTRICT OF COLUMBIA'S JAILER.  THE COURT
EXPRESSLY NOTED THAT NO CONTENTION WAS MADE THAT THE DISTRICT OF
COLUMBIA JAIL WAS A "CONTRACT" JAIL.  ID., AT 126, 397 F.2D, AT 687. 
IN WITT V. UNITED STATES, 462 F.2D 1261 (CA2 1972), THE COURT HELD THAT
THE SUPERVISING EMPLOYEE "WAS CERTAINLY AMENABLE TO SOME DEGREE OF
CONTROL BY THE DISCIPLINARY BARRACKS," ID., AT 1264, AND THAT HE WAS
THEREFORE "ACTING ON BEHALF OF" THE GOVERNMENT. 

[[DOP 

MR. JUSTICE STEWART AND MR. JUSTICE MARSHALL JOIN THE OPINION OF THE
COURT UPON THE UNDERSTANDING THAT, UPON REMAND, THE COURT OF APPEALS'
CONSIDERATION OF BOWERS' NEGLIGENCE WILL NOT BE LIMITED TO HIS ALLEGED
FAILURE TO MAKE "SPECIFIC ARRANGEMENTS . . . FOR CONSTANT SURVEILLANCE
OF THE PRISONER." 

JAMES DEANDA ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE J. ROBERT MCKISSICK, ED IDAR, JR., MARIO OBLEDO, AND MICHAEL
MENDELSON. 

MARK L. EVANS ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WOOD, AND ROBERT E. KOPP. 
..END :













UNITED STATES V. NEVADA ET AL., 412 U.S. 534 


       ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT 

   NO. 59, ORIG.  ARGUED APRIL 16, 1973 -- DECIDED JUNE 11, 1973;
MOTION DENIED. 


    THE UNITED STATES ASK LEAVE TO FILE A BILL OF COMPLAINT AGAINST

  CALIFORNIA AND NEVADA SEEKING A DECLARATION OF THE RESPECTIVE

  RIGHTS OF THE PARTIES IN THE TRUCKEE RIVER, WHICH FLOWS THROUGH

  PART OF CALIFORNIA INTO NEVADA, TERMINATING IN PYRAMID LAKE.  THE

  COMPLAINT STATES THAT THE UNITED STATES CREATED A RESERVATION IN

  1859 FOR THE PAIUTE INDIAN TRIBE THAT INCLUDED PYRAMID LAKE, AND

  THAT THE LAKE LEVEL HAS DECLINED SINCE 1906 DUE CHIEFLY TO

  UPSTREAM USES AND DIVERSIONS, MAKING IT IMPERATIVE THAT THE

GOVERNMENT'S PRIOR RIGHT TO SUFFICIENT WATER TO MAINTAIN THE LAKE

  BE JUDICIALLY DECLARED.  BY DECREE ENTERED IN 1944, IN UNITED

  STATES V. ORR WATER DITCH CO., THE GOVERNMENT WAS AUTHORIZED TO

  DIVERT TRUCKEE RIVER WATER FOR A RECLAMATION PROJECT UPSTREAM

  FROM PYRAMID LAKE, AND ITS PRIOR RIGHT WAS DECLARED TO SUFFICIENT

  TRUCKEE RIVER WATER TO IRRIGATE CERTAIN BOTTOM LAND AND BENCH

  LAND ON THE PYRAMID LAKE RESERVATION.  THE DEFENDANT STATES HAVE

  MADE A COMPACT, WHICH IS THE SUBJECT OF BILLS PENDING IN

  CONGRESS, RESPECTING THEIR SHARES OF TRUCKEE RIVER WATER.  HELD:

  THE MOTION TO FILE THE BILL OF COMPLAINT IS DENIED WITHOUT

  PREJUDICE TO REFILING IT IF THE POSTURE OF THE LITIGATION SHOULD

  CHANGE IN A MANNER THAT PRESENTS A MORE SUBSTANTIAL BASIS FOR THE

  EXERCISE OF ORIGINAL JURISDICTION.  PP. 537 - 540. 

      (A) THERE BEING NO CONTROVERSY BETWEEN CALIFORNIA AND NEVADA,

  THE DISPUTE IS BETWEEN THE UNITED STATES AND TWO STATES, OVER

  WHICH THE COURT HAS ORIGINAL BUT NOT EXCLUSIVE JURISDICTION UNDER

  28 U.S.C. ^ 1251(B) (2).  P. 537. 

     (B) THE COURT SEEKS TO EXERCISE ITS ORIGINAL JURISDICTION

  SPARINGLY, ESPECIALLY WHERE THE PLAINTIFF HAS ANOTHER ADEQUATE

  FORUM IN WHICH TO SETTLE HIS CLAIM.  P. 538. 

     (C) THE DISPUTES OVER THE ORR WATER DITCH DECREE AND THE

  EXISTENCE OF PRIOR WATER RIGHTS CONCERNING THE PYRAMID LAKE

  RESERVATION INVOLVE COMPETING CLAIMS WITHIN NEVADA, OVER WHICH

  THE DISTRICT COURT HAS JURISDICTION.  ANY POSSIBLE DISPUTE

  BETWEEN THE UNITED STATES AND CALIFORNIA RESPECTING PYRAMID LAKE

  WATER RIGHTS IS REMOTE, AND ANY DISPUTE WITH CALIFORNIA

  CONCERNING WATER RIGHTS IN THAT STATE CAN BE SETTLED IN THE LOWER

  FEDERAL COURTS IN CALIFORNIA.  PP. 538 - 540. 

PER CURIAM. 

[[HC535'(ORIGINAL DOCUMENT PAGE 535)' 

THE UNITED STATES ASKS LEAVE TO FILE A BILL OF COMPLAINT PURSUANT TO
THIS COURT'S ORGINAL JURISDICTION AGAINST THE STATES OF CALIFORNIA AND
NEVADA SEEKING A DECLARATION OF THE RESPECTIVE RIGHTS OF THE STATES AND
OF THE UNITED STATES IN THE TRUCKEE RIVER, A NAVIGABLE INTERSTATE
STREAM.  THE TRUCKEE RISES IN THE HIGH SIERRA, FLOWS INTO LAKE TAHOE,
THROUGH WHICH THE CALIFORNIA-NEVADA BOUNDARY RUNS, EXITS ON THE
CALIFORNIA SIDE OF THE LAKE, AND FLOWS 20 MILES BEFORE CROSSING INTO
NEVADA.  IT THEN CONTINUES ANOTHER 65 MILES, THROUGH RENO AND BEYOND,
TO ITS TERMINATION IN PYRAMID LAKE, A DESERT LAKE 20 MILES LONG AND
FIVE MILES WIDE, WITH NO OUTLET AND A WATER LEVEL DETERMINED BY THE
BALANCE OR IMBALANCE BETWEEN INFLOW AND EVAPORATION. 

[[HC536'(ORIGINAL DOCUMENT PAGE 536)' 

THE COMPLAINT SOUGHT TO BE FILED STATES THAT IN 1859 THE UNITED
STATES CREATED A RESERVATION FOR THE PAIUTE INDIAN TRIBE THAT INCLUDED
PYRAMID LAKE AND AN EXTENSIVE AREA SURROUNDING IT. ALLEGEDLY, THE
UNITED STATES INTENDED AT THE TIME TO RESERVE SUFFICIENT WATER FROM THE
TRUCKEE RIVER TO MAINTAIN PYRAMID LAKE AND THE LOWER REACHES OF THE
RIVER AS A VIABLE FISHERY ON WHICH THE INDIANS COULD DEPEND FOR THEIR
SUBSISTENCE AND LIVELIHOOD.  THE LEVEL OF THE LAKE, HOWEVER, IS SAID TO
HAVE DECLINED SOME 70 FEET SINCE 1906, DUE CHIEFLY TO UPSTREAM USES AND
DIVERSIONS WHICH MAKE IT IMPERATIVE THAT THE PRIOR RIGHT OF THE UNITED
STATES TO SUFFICIENT WATER TO MAINTAIN PYRAMID LAKE BE JUDICIALLY
DECLARED AS AGAINST EACH OF THE DEFENDANT STATES. 

IT APPEARS FROM THE BILL OF COMPLAINT THAT THE UNITED STATES HAS
SEVERAL OTHER INTERESTS IN THE WATERS OF THE TRUCKEE RIVER, CHIEF AMONG
WHICH IS THE RIGHT TO DIVERT AT ITS DERBY DAM, SOME DISTANCE UPSTREAM
FROM PYRAMID LAKE, LARGE AMOUNTS OF WATER FROM THE TRUCKEE RIVER FOR
TRANSPORTATION AND USE IN CONNECTION WITH THE NEWLANDS RECLAMATION
PROJECT, INITIATED AND COMPLETED BY THE UNITED STATES PURSUANT TO THE
RECLAMATION ACT OF 1902, 32 STAT. 388.  /1/  JUDICIAL APPROVAL FOR THIS
DIVERSION WAS SOUGHT BY THE UNITED STATES IN A SUIT BROUGHT BY IT IN
1913 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA. 

[[HC537'(ORIGINAL DOCUMENT PAGE 537)'  UNITED STATES V. ORR WATER
DITCH CO., EQUITY NO. A - 3 (1944).  THE DECREE ENTERED IN THIS ACTION
IN 1944 AUTHORIZED THE UNITED STATES TO DIVERT TRUCKEE RIVER WATER AT
DERBY DAM FOR DELIVERY TO THE NEWLANDS PROJECT; IT ALSO DECLARED THE
PRIOR RIGHT OF THE UNITED STATES TO SUFFICIENT TRUCKEE RIVER WATER TO
IRRIGATE SOME 3,130 ACRES OF BOTTOM LAND AND 2,745 ACRES OF BENCH LAND
ON THE PYRAMID LAKE INDIAN RESERVATION.  APP. D TO MOTION FOR LEAVE TO
FILE COMPLAINT. 

THE FOREMOST PURPOSE OF THE UNITED STATES IN SEEKING TO INSTITUTE
THE PRESENT LITIGATION IS TO PERFECT A PRIOR WATER RIGHT AGAINST ALL
UPSTREAM USES THAT WILL MAINTAIN PYRAMID LAKE AT ITS CURRENT LEVEL AND
SO PREVENT FURTHER DETERIORATION OF THE LAKE AND THE RIVER AS A HABITAT
FOR THE NATIVE FISH THAT HAVE HISTORICALLY THRIVED IN THE LAKE AND THAT
HAVE PROVIDED SUSTENANCE FOR THE TRIBE. 

THE MOTION FOR LEAVE TO FILE A COMPLAINT IS DENIED.  THE STATES OF
CALIFORNIA AND NEVADA HAVE ENTERED INTO A COMPACT WITH RESPECT TO THEIR
RESPECTIVE SHARES IN THE TRUCKEE RIVER WATER, AND THAT COMPACT IS THE
SUBJECT OF PENDING BILLS IN CONGRESS.  H. R. 15, S. 24, 93D CONG., 1ST
SESS.  THERE IS NOW NO CONTROVERSY BETWEEN THE TWO STATES WITH RESPECT
TO THE TRUCKEE RIVER.  THE COMPLAINT, THEREFORE, AS THE UNITED STATES
CONCEDES, IS NOT ONE ALLEGING A CASE OR CONTROVERSY BETWEEN TWO STATES
WITHIN THE EXCLUSIVE JURISDICTION OF THIS COURT, UNDER 28 U.S.C. ^ 1251
(A), BUT A DISPUTE BETWEEN THE UNITED STATES AND TWO STATES OVER WHICH
THIS COURT HAS ORIGINAL BUT NOT EXCLUSIVE JURISDICTION UNDER ^ 1251(B)
(2). 

WE SEEK TO EXERCISE OUR ORIGINAL JURISDICTION SPARINGLY AND ARE
PARTICULARLY RELUCTANT TO TAKE JURISDICTION OF A SUIT WHERE THE
PLAINTIFF HAS ANOTHER ADEQUATE FORUM IN WHICH TO SETTLE HIS CLAIM. 

HC538'(ORIGINAL DOCUMENT PAGE 538)'  ILLINOIS V. CITY OF MILWAUKEE,
406 U.S. 91 (1972); OHIO V. WYANDOTTE CHEMICALS CORP., 401 U.S. 493
(1971); MASSACHUSETTS V. MISSOURI, 308 U.S. 1 (1939).  HERE, NEVADA
DISPUTES THE RIGHT OF THE UNITED STATES TO SUFFICIENT WATER TO MAINTAIN
PYRAMID LAKE AT ANY PARTICULAR LEVEL.  IT ALSO ASSERTS THAT THE UNITED
STATES IS BOUND BY THE 1944 ORR DITCH DECREE TO RESPECT THE PRIVATE
WATER RIGHTS OF HUNDREDS OF LANDOWNERS WHO ARE SERVED BY THE NEWLANDS
PROJECT AND WHOSE RIGHTS ARE DEPENDENT UPON THE RIGHT OF THE UNITED
STATES TO DIVERT TRUCKEE RIVER WATER, THE DECREE AUTHORIZING THAT
DIVERSION, AND A CONTRACT WITH THE UNITED STATES TO DELIVER THE WATER
TO THE PROJECT.  THIS DISPUTE OVER THE ORR DITCH DECREE AND THE
EXISTENCE AND EXTENT OF THE PRIOR WATER RIGHTS OF THE UNITED STATES
WITH RESPECT TO THE PYRAMID LAKE INDIAN RESERVATION IS WITHIN THE
JURISDICTION OF THE DISTRICT COURT.  WE NEED NOT EMPLOY OUR ORIGINAL
JURISDICTION TO SETTLE COMPETING CLAIMS TO WATER WITHIN A SINGLE
STATE.  THIS IS PARTICULARLY THE CASE WHERE THE INDIVIDUAL USERS OF
WATER IN THE NEWLANDS PROJECT, WHO ORDINARILY WOULD HAVE NO RIGHT TO
INTERVENE IN AN ORIGINAL ACTION IN THIS COURT, NEW JERSEY V. NEW YORK,
345 U.S. 369, 373 - 375 (1953), WOULD HAVE AN OPPORTUNITY TO
PARTICIPATE IN THEIR OWN BEHALF IF THIS LITIGATION GOES FORWARD IN THE
DISTRICT COURT. 

WE RECOGNIZE THAT THE UNITED STATES WILL NOT BE ABLE TO JOIN
CALIFORNIA AS A DEFENDANT IN A SUIT IN NEVADA TO PERFECT PYRAMID
RESERVATION WATER RIGHTS AND THAT, ABSENT CALIFORNIA'S VOLUNTARY
APPEARANCE, A NEVADA DECREE WOULD NOT BIND THAT STATE.  HINDERLIDER V.
LAPLATA CO., 304 U.S. 92, 103 (1938).   BUT THESE ARE NOT DETERMINATIVE
CONSIDERATIONS.  UNDER THE PROPOSED INTERSTATE COMPACT, CALIFORNIA AND
NEVADA HAVE AGREED UPON THEIR RESPECTIVE SHARES OF TRUCKEE RIVER
WATER.  IN NEVADA BY THE UNITED STATES OR ITS WARDS ARE TO BE CHARGED
AGAINST NEVADA'S SHARE OF TRUCKEE WATER.  FOR THE PURPOSES OF DIVIDING
THE WATERS OF AN INTERSTATE STREAM WITH ANOTHER STATE, NEVADA HAS THE
RIGHT, PARENS PATRIAE, TO REPRESENT ALL THE NONFEDERAL USERS IN ITS OWN
STATE INSOFAR AS THE SHARE ALLOCATED TO THE OTHER STATE IS CONCERNED. 
IT IS THEREFORE DOUBTFUL AS BEST THAT THERE IS NOW ANY DISPUTE AT ALL
BETWEEN CALIFORNIA AND THE UNITED STATES WITH RESPECT TO THE LATTER'S
CLAIM TO WATER RIGHTS AT PYRAMID LAKE.  NEW JERSEY V. NEW YORK, SUPRA,
AT 372 - 373; HINDERLIDER V. LA PLATA CO., SUPRA, AT 106; NEBRASKA V.
WYOMING, 295 U.S. 40, 43 (1935), 325 U.S. 589, 612 - 615, 629 (1945). 
IT IS TRUE THAT UPSTREAM OR DOWNSTREAM WATER USES AND PRIORITIES ARE
IMPORTANT CONSIDERATIONS WHEN THE JUDICIARY EQUITABLY APPORTIONS AN
INTERSTATE STREAM, HINDERLIDER V. LA PLATA CO., SUPRA, AT 102; NEBRASKA
V. WYOMING, 325 U.S., AT 617; WYOMING V. COLORADO, 259 U.S. 419, 470
(1922), BUT THE UNITED STATES WOULD APPEAR TO HAVE OCCASION TO OBJECT
TO UPSTREAM DIVERSIONS IN CALIFORNIA ON THE GROUNDS OF INTERFERENCE
WITH ITS PYRAMID LAKE WATER RIGHTS ONLY IF THE COMPACT BETWEEN THE TWO
STATES IS NOT APPROVED OR NEVADA, PRIOR TO SUCH APPROVAL, DISOWNS THE
AGREED-UPON DIVISION OF TRUCKEE RIVER WATER.  IN THAT EVENT, A DISPUTE
BETWEEN THE TWO STATES MAY ARISE, AND THE UNITED STATES WOULD THEN
PERHAPS HAVE SOME GROUND TO PARTICIPATE AND ASSERT THAT CALIFORNIA'S
SHARE MUST BE REDUCED IN ORDER TO ACCOMMODATE A PRIOR, LONG-ESTABLISHED
USE BY THE UNITED STATES IN THE STATE OF NEVADA.  CF. ARIZONA V.
CALIFORNIA, 373 U.S. 546 (1963); NEBRASKA V. WYOMING, SUPRA.  ANY
POSSIBLE DISPUTE WITH CALIFORNIA WITH RESPECT TO UNITED STATES WATER
USES IN THAT STATE CAN BE SETTLED IN THE LOWER FEDERAL COURTS IN
CALIFORNIA; AND THE POSSIBILITY OF A RIPE CONTROVERSY BETWEEN THE
UNITED STATES AND CALIFORNIA WITH RESPECT TO PYRAMID LAKE WATER RIGHTS
APPEARS TOO REMOTE TO WARRANT GRANTING THE GOVERNMENT'S MOTION FOR
LEAVE TO FILE THE INSTANT COMPLAINT. 

[[HC540'(ORIGINAL DOCUMENT PAGE 540)'  WE DENY THE MOTION, BUT
WITHOUT PREJUDICE TO REFILING IT SHOULD THE POSTURE OF THE LITIGATION
CHANGE IN A MANNER THAT PRESENTS A MORE SUBSTANTIAL BASIS FOR THE
EXERCISE OF OUR ORIGINAL JURISDICTION

              SO ORDERED. 

/1/  THE UNITED STATES ALSO OPERATES THE WASHOE RECLAMATION PROJECT
IN NEVADA AND CALIFORNIA WHICH WAS ESTABLISHED UNDER THE WASHOE PROJECT
ACT OF 1956, 70 STAT. 775.  THE ACT PROVIDES, INTER ALIA, FOR
ESTABLISHING FACILITIES TO PERMIT INCREASED RELEASES OF WATER FROM LAKE
TAHOE AND RESTORATION OF THE PYRAMID LAKE FISHERY, 43 U.S.C. ^ 614C. 

IN ADDITION TO THE RIGHT CLAIMED FOR PYRAMID LAKE, THE UNITED STATES
SEEKS TO HAVE RIGHTS DECREED FOR IT TO THE USE OF WATERS IN AND ON
NATIONAL FORESTS WITHIN THE TRUCKEE RIVER WATERSHED, TO WATERS RESERVED
AS PUBLIC WATER HOLES AND HOT SPRINGS, TO THE USE OF WATERS IN AND ON
PUBLIC LANDS WHERE THE WATERS HAVE HERETOFORE BEEN PUT TO BENEFICIAL
USE ON THOSE LANDS, AND TO THE USE OF RUNOFF WATERS FROM THE NEWLANDS
PROJECT FOR USE IN A WILDLIFE REFUGE. 

MR. JUSTICE DOUGLAS DISSENTS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEFS WERE ASSISTANT ATTORNEY GENERAL FRIZZELL, DEPUTY
ASSISTANT ATTORNEY GENERAL KIECHEL, AND HARRY R. SACHSE. 

E. BARRETT PRETTYMAN, JR., ARGUED THE CAUSE FOR DEFENDANT STATE OF
NEVADA.  WITH HIM ON THE BRIEF WERE ROBERT F. LIST, ATTORNEY GENERAL,
TIMOTHY JAMES BLOOMFIELD, AND EDWARD C. REED, JR. RODERICK WALSTON,
DEPUTY ATTORNEY GENERAL, ARGUED THE CAUSE FOR DEFENDANT STATE OF
CALIFORNIA.  WITH HIM ON THE BRIEF WERE EVELLE J. YOUNGER, ATTORNEY
GENERAL, CARL BORONKAY, ASSISTANT ATTORNEY GENERAL, AND BERTRAM G.
BUZZINI AND DENNIS ANTENORE, DEPUTY ATTORNEYS GENERAL. 

BRIEFS OF AMICI CURIAE IN SUPPORT OF MOTION FOR LEAVE TO FILE BILL
OF COMPLAINT WERE FILED BY ROBERT S. PELCYGER, DAVID H. GETCHES, AND
ROBERT D. STITSER FOR THE PYRAMID LAKE PAIUTE TRIBE OF INDIANS, AND BY
ARTHUR LAZARUS, JR., FOR THE ASSOCIATION ON AMERICAN INDIANS AFFAIRS,
INC. 

JAMES W. JOHNSON, JR., AND E. J. SKEEN FILED A BRIEF FOR TRUCKEE
CARSON IRRIGATION DISTRICT AS AMICUS CURIAE IN OPPOSITION TO MOTION FOR
LEAVE TO FILE BILL OF COMPLAINT. 
..END :
















FRI, ACTING ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY V. SIERRA
CLUB ET AL, 412 U.S. 541 



       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT 

     NO. 72 - 804.  ARGUED APRIL 18, 1973 -- DECIDED JUNE 11, 1973;

  AFFIRMED BY AN EQUALLY DIVIDED COURT. 


PER CURIAM. 

[[HC542'(ORIGINAL DOCUMENT PAGE 542)' 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

DEPUTY SOLICTOR GENERAL WALLACE ARGUED THE CAUSE FOR PETITIONER. 
WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL FRIZZELL, HARRIET S. SHAPIRO, EDMUND B. CLARK, AND
MARTIN H. GREEN. 

BRUCE J. TERRIS ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE HELEN C. NEEDHAM, NATHALIE VAYSSIE BLACK, AND JAMES W.
MOORMAN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MARK WILMER,
REX E. LEE, GARY K. NELSON, ATTORNEY GENERAL, J. A. HUGHES, JOHN
CONWAY, WILLIAM DUNCAN, GORDON PEARCE, RICHARD G. CAMPBELL, LAWRENCE V.
ROBERTSON, JR., AND DONALD E. DICKERMAN FOR THE STATE OF ARIZONA AND
TEN NAMED PUBLIC UTILITIES; BY ANDREW P. MILLER, ATTORNEY GENERAL AND
C. TABOR CRONK, ASISTANT ATTORNEY GENERAL, FOR THE COMMONWEALTH OF
VIRGINIA; BY MILTON A. SMITH AND STANLEY W. SCHROEDER FOR THE CHAMBER
OF COMMERCE OF THE UNITED STATES; BY CAMERON F. MACRAE, G. S. PETER
BERGEN, AND HENRY V. NICKEL FOR THE EDISON ELECTRIC INSTITUTE; AND BY
EDWARD A. MCCABE, LAURENCE P. SHERFY, AND DAVID W. MILLER FOR THE
AMERICAN MINING CONGRESS. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL, PRO SE, ROBERT H. O'BRIEN, ASSISTANT
ATTORNEY GENERAL, AND NICHOLAS C. YOST, ANTHONY M. SUMMERS, AND C.
FOSTER KNIGHT, DEPUTY ATTORNEYS GENERAL, FOR THE ATTORNEY GENERAL OF
CALIFORNIA; BY WILLIAM J. SCOTT, ATTORNEY GENERAL, FRED F. HERZOG,
FIRST ASSISTANT ATTORNEY GENERAL, AND HARVEY M. SHELDON, ASSISTANT
ATTORNEY GENERAL, FOR THE STATE OF ILLINOIS; BY FRANK J. KELLEY,
ATTORNEY GENERAL, ROBERT A. DERENGOSKI, SOLICITOR GENERAL, AND JEROME
MASLOWSKI, STEWART H. FREEMAN, AND CHARLES S. ALPERT, ASSISTANT
ATTORNEYS GENERAL, FOR THE STATE OF MICHIGAN, JOINED BY WARREN
SPANNAUS, ATTORNEY GENERAL, AND CURTIS D. FORSLUND, SOLICITOR GENERAL,
FOR THE STATE OF MINNESOTA; BY LOUIS J. LEFKOWITZ, ATTORNEY GENERAL,
SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND PHILIP
WEINBERG AND JAMES P. CORCORAN, ASSISTANT ATTORNEYS GENERAL, FOR THE
STATE OF NEW YORK; BY JOHN L. HILL, ATTORNEY GENERAL, LARRY F. YORK,
FIRST ATTORNEY GENERAL, AND MIKE WILLATT, PHIL MAXWELL, AND TROY C.
WEBB, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF NEW MEXICO, JOINED
BY THE ATTORNEYS GENERAL FOR THEIR RESPECTIVE STATES AS FOLLOWS:
WILLIAM J. BAXLEY OF ALABAMA, ROBERT KILLIAN OF CONNECTICUT, ROBERT L.
SHEVIN OF FLORIDA, VERN MILLER OF KANSAS, WILLIAM J. GUSTE, JR., OF
LOUISIANA, JON A. LUND OF MAINE, ROBERT H. QUINN OF MASSACHUSETTS,
LOUIS J. LEFKOWITZ OF NEW YORK, ROBERT MORGAN OF NORTH CAROLINA,
WILLIAM J. BROWN OF OHIO, LEE L. JOHNSON OF OREGON, ISRAEL PACKEL OF
PENNSYLVANIA, KERMIT A. SANDE OF SOUTH DAKOTA, JOHN L. HILL OF TEXAS,
AND KIMBERLEY B. CHENEY OF VERMOUNT; BY NORMAN REDLICH FOR THE CITIES
OF NEW YORK AND BOSTON; BY ALFRED S. FORSYTH FOR THE ASSOCIATION OF THE
BAR OF THE CITY OF NEW YORK; BY DAVID H. GETCHES FOR THE JICARILLA
APACHE TRIBE OF INDIANS ET AL.; AND BY NEAL A. JACKSON, AND JAMES F.
BROMLEY FOR NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. 

[[DOP 

MR. JUSTICE POWELL TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :























DEAN V. GADSEN TIMES PUBLISHING CORP., 412 U.S. 543 


       ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL

           APPEALS OF ALABAMA 

     NO. 72 - 1310.  DECIDED JUNE 11, 1973; CERTIORARI GRANTED; 49

  ALA. APP. 45, 268 SO. 2D 829, REVERSED. 


    AN ALABAMA STATUTE THAT PROVIDES THAT AN EMPLOYEE EXCUSED 

     FOR JURY DUTY "SHALL BE ENTITLED TO HIS USUAL COMPENSATION . .

  . LESS THE FEE OR COMPENSATION HE RECEIVED FOR SERVING" AS A

  JUROR, DOES NOT DEPRIVE THE EMPLOYER OF PROPERTY IN VIOLATION OF

  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  DAY-BRITE

  LIGHTING, INC. V. MISSOURI, 342 U.S. 421. 

PER CURIAM. 

[[HC543'(ORIGINAL DOCUMENT PAGE 543)' 

PETITIONER SUED RESPONDENT, HIS EMPLOYER, TO RECOVER COMPENSATION LOST
AS A RESULT OF THE EMPLOYEE'S BEING REQUIRED TO SERVE AS A JUROR.  AN
ALABAMA STATUTE PROVIDES THAT AN EMPLOYEE EXCUSED FOR JURY DUTY "SHALL
BE ENTITLED TO HIS USUAL COMPENSATION RECEIVED FROM SUCH EMPLOYMENT
LESS THE FEE OR COMPENSATION HE RECEIVED FOR SERVING"  AS A JUROR. 
ALA. CODE OF 1940, TIT. 30, ^ 7(1) (SUPP. 1971).  IT APPEARS THAT
PETITIONER SERVED ON A JURY, RECEIVED PAY FOR THE JURY DUTY AND
SUBMITTED A BILL OF $63 TO RESPONDENT, THE DIFFERENCE BETWEEN HIS
REGULAR WAGES AND HIS JURY PAY.  RESPONDENT REFUSED TO PAY; THE TRIAL
COURT RENDERED A JUDGMENT FOR PETITIONER; BUT THE COURT OF CIVIL
APPEALS OF ALABAMA HELD THE STATE ACT UNCONSTITUTIONAL.  49 ALA. APP.
45, 268 SO. 2D 829. 

THE SUPREME COURT OF ALABAMA DENIED CERTIORARI TO REVIEW THAT
JUDGMENT.  289 ALA. 743, 268 SO.2D 834.  THE CASE IS HERE ON PETITION
FOR A WRIT OF CERTIORARI WHICH WE GRANT. 

THE COURT OF CIVIL APPEALS HELD THAT THE ACT DEPRIVES THE EMPLOYER
OF PROPERTY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, ITS MAIN RELIANCE BEING ON COPPAGE V. KANSAS, 236 U.S. 1. 

[[HC544'(ORIGINAL DOCUMENT PAGE 544)'  COPPAGE DECLARED
UNCONSTITUTIONAL AS VIOLATIVE OF DUE PROCESS A STATE STATUTE WHICH MADE
IT A MISDEMEANOR FOR AN EMPLOYER TO REQUIRE AN EMPLOYEE TO AGREE NOT TO
JOIN OR REMAIN A MEMBER OF A UNION DURING HIS EMPLOYMENT.  THAT WAS
WHEN SUBSTANTIVE DUE PROCESS WAS IN ITS HEYDAY.  WE CITED COPPAGE ALONG
WITH OTHER DECISIONS OF LIKE TENOR IN DAY-BRITE LIGHTING, INC. V.
MISSOURI, 342 U.S. 421, WHERE WE SUSTAINED A STATE STATUTE WHICH MADE
IT A MISDEMEANOR FOR AN EMPLOYER TO DEDUCT WAGES OF AN EMPLOYEE FOR
FOUR HOURS WHEN THE EMPLOYEE ABSENTS HIMSELF FROM HIS JOB IN ORDER TO
VOTE.  WE HELD THAT THE REQUIREMENT PLACED ON THE EMPLOYER TO PAY WAGES
FOR THIS BRIEF PERIOD WHEN THE EMPLOYEE IS VOTING STOOD CONSTITUTIONAL
MUSTER. 

WE SAID: 

"MOST REGULATIONS OF BUSINESS NECESSARILY IMPOSE FINANCIAL BURDENS
ON THE ENTERPRISE FOR WHICH NO COMPENSATION IS PAID.  THOSE ARE PART OF
THE COSTS OF OUR CIVILIZATION.  EXTREME CASES ARE CONJURED UP WHERE AN
EMPLOYER IS REQUIRED TO PAY WAGES FOR A PERIOD THAT HAS NO RELATION TO
THE LEGITIMATE END.  THOSE CASES CAN AWAIT DECISION AS AND WHEN THEY
ARISE.  THE PRESENT LAW HAS NO SUCH INFIRMITY.  IT IS DESIGNED TO
ELIMINATE ANY PENALTY FOR EXERCISING THE RIGHT OF SUFFRAGE AND TO
REMOVE A PRACTICAL OBSTACLE TO GETTING OUT THE VOTE.  THE PUBLIC
WELFARE IS A BROAD AND INCLUSIVE CONCEPT.  THE MORAL, SOCIAL, ECONOMIC,
AND PHYSICAL WELL-BEING OF THE COMMUNITY IS ONE PART OF IT; THE
POLITICAL WELL-BEING, ANOTHER.  THE POLICE POWER WHICH IS ADEQUATE TO
FIX THE FINANCIAL BURDEN FOR ONE IS ADEQUATE FOR THE OTHER.  THE
JUDGMENT OF THE LEGISLATURE THAT TIME OUT FOR VOTING SHOULD COST THE
EMPLOYEE NOTHING MAY BE A DEBATABLE ONE.  IT IS INDEED CONCEDED BY THE
OPPOSITION TO BE SUCH. 

[[HC545'(ORIGINAL DOCUMENT PAGE 545)'

  BUT IF OUR RECENT CASES MEAN ANYTHING, THEY LEAVE DEBATABLE
ISSUES AS RESPECTS BUSINESS,

  ECONOMIC, AND SOCIAL AFFAIRS TO LEGISLATIVE DECISION.  WE COULD
STRIKE DOWN THIS LAW ONLY IF

  WE RETURNED TO THE PHILOSOPHY OF THE LOCHNER, /1/  COPPAGE, AND
ADKINS /2/  CASES."  ID., AT

  424 - 425.  THE ALABAMA STATUTE STANDS ON NO LESS STURDY A
FOOTING. 

              REVERSED. 

/1/  LOCHNER V. NEW YORK, 198 U.S. 45. 

/2/  ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525. 
..END :



















UNITED STATES V. STATE TAX COMMISSION OF MISSISSIPPI ET AL, 412 U.S.
363 



       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF MISSISSIPPI 

     NO. 72 - 350.  .ARGUED MARCH 19, 1973 -- DECIDED JUNE 4, 1973;

  340 F. SUPP. 903, VACATED AND REMANDED. 


    THE UNITED STATES BROUGHT THIS ACTION CONTESTING THE VALIDITY

  OF APPELLEE TAX COMMISSION'S REGULATION REQUIRING OUT-OF-STATE

  LIQUOR DISTILLERS AND SUPPLIERS TO COLLECT AND REMIT TO THE

  COMMISSION A WHOLESALE MARKUP ON LIQUOR SOLD TO MILITARY

  OFFICERS' CLUBS AND OTHER NONAPPROPRIATED FUND ACTIVITIES LOCATED

  ON BASES WITHIN MISSISSIPPI, OVER TWO OF WHICH THE UNITED STATES

  EXERCISES EXCLUSIVE JURISDICTION, AND THE REMAINING TWO OF WHICH

  CONCURRENT JURISDICTION.  RELYING ON THE TWENTY-FIRST AMENDMENT,

THE DISTRICT COURT UPHELD THE REGULATION.  HELD: 

     1.  THE TWENTY-FIRST AMENDMENT DOES NOT EMPOWER A STATE TO TAX

  OR OTHERWISE REGULATE THE IMPORTATION OF DISTILLED SPIRITS INTO A

  TERRITORY OVER WHICH THE UNITED STATES EXERCISES EXCLUSIVE

  JURISDICTION, COLLINS V. YOSEMITE PART & CURRY CO., 304 U.S. 518,

  REGARDLESS OF WHETHER SOME OF THE LIQUOR MAY HAVE BEEN CONSUMED

  OFF BASE.  PP. 369 - 378. 

     2.  WHETHER THE MARKUP CAN BE VIEWED AS A SALES TAX TO WHOSE

  IMPOSITION IN THE CONTEXT OF THE TWO EXCLUSIVE-JURISDICTION BASES

  THE UNITED STATES HAS CONSENTED UNDER THE BUCK ACT, AND WHETHER,

  IN ANY EVENT, THE MARKUP UNCONSITUTIONALLY TAXES FEDERAL

  INSTRUMENTALITIES, AND VIOLATES THE SUPREMACY CLAUSE AS

  CONFLICTING WITH FEDERAL PROCUREMENT REGULATIONS AND POLICY, ARE

  ISSUES THAT THE DISTRICT COURT DID NOT REACH AND SHOULD CONSIDER

  INITIALLY ON REMAND.  PP. 378 - 381. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BRENNAN, STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, J.,
JOINED, POST, P. 381. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

[[HC364'(ORIGINAL DOCUMENT PAGE 364)' 

IN THIS CASE WE ARE CALLED UPON TO REVIEW THE JUDGMENT OF THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI THAT THE STATE
OF MISSISSIPPI MAY REQUIRE OUT-OF-STATE LIQUOR DISTILLERS AND SUPPLIERS
TO COLLECT AND REMIT TO THE STATE A WHOLESALE MARKUP ON LIQUOR SOLD TO
OFFICERS' CLUBS, SHIP'S STORES, AND POST EXCHANGES LOCATED ON VARIOUS
MILITARY BASES OVER WHICH THE UNITED STATES EXERCISES EITHER EXCLUSIVE
JURISDICTION OR JURISDICTION CONCURRENT WITH THE STATE. 

PRIOR TO 1966, THE STATE OF MISSISSIPPI PROHIBITED THE SALE OR
POSSESSION OF ALCOHOLIC BEVERAGES WITHIN ITS BORDERS.  IN THAT YEAR,
MISSISSIPPI PASSED A LOCAL OPTION ALCOHOLIC BEVERAGE CONTROL LAW
SUBJECT TO THE REQUIREMENTS THAT THE STATE TAX COMMISSION BE THE SOLE
IMPORTER AND WHOLESALER OF ALCOHOLIC BEVERAGES DISTRIBUTED WITHIN THE
STATE.  /1/  THE TAX COMMISSION WAS GIVEN EXCLUSIVE AUTHORITY TO ACT AS
WHOLESALE DISTRIBUTOR IN THE SALE OF ALCOHOLIC BEVERAGES TO LICENSED
RETAILERS WITHIN THE STATE "INCLUDING, AT THE DISCRETION OF THE
COMMISSION, ANY RETAIL DISTRIBUTORS OPERATING WITHIN ANY MILITARY POST
. . . WITHIN THE BOUNDARIES OF THE STATE, . . . EXERCISING SUCH CONTROL
OVER THE DISTRIBUTION OF ALCOHOLIC BEVERAGES AS (SEEMS) RIGHT AND
PROPER IN KEEPING WITH THE PROVISIONS AND PURPOSES OF THIS ACT."  /2/
IN CONJUNCTION WITH THESE TRANSACTIONS WITH RETAILERS, THE COMMISSION
WAS DIRECTED TO "ADD TO THE COST OF ALL ALCOHOLIC BEVERAGES SUCH . . .
MARKUPS AS IN ITS DISCRETION WILL BE ADEQUATE TO COVER THE COST OF
OPERATION OF THE STATE WHOLESALE LIQUOR BUSINESS, YIELD A RESONABLE
PROFIT, AND BE COMPETITIVE WITH LIQUOR PRICES IN NEIGHBORING STATES." 
/3/ 

[[HC365'(ORIGINAL DOCUMENT PAGE 365)'  UNDER THE AUTHORITY GRANTED TO
IT BY THE ACT, THE TAX COMMISSION PROMULGATED REGULATION 25 /4/  WHICH
GIVES MILITARY POST EXCHANGES, SHIP'S STORES, AND OFFICERS' CLUBS THE
OPTION OF PURCHASING LIQUOR EITHER FROM THE COMMISSION OR DIRECTLY FROM
THE DISTILLER.  HOWEVER, INSOFAR AS PURCHASES ARE MADE DIRECTLY FROM
THE DISTILLERS BY SUCH MILITARY FACILITIES, THE REGULATION REQUIRES THE
DISTILLER TO COLLECT AND REMIT TO THE TAX COMMISSION THE LATTER'S
"USUAL WHOLESALE MARKUP."  DURING THE PERIOD INVOLVED IN THIS CASE, THE
TAX COMMISSION'S WHOLESALE MARKUP WAS 17% ON DISTILLED SPIRITS AND 20%
ON WINE. 

FOUR UNITED STATES MILITARY BASES ARE LOCATED IN THE STATE OF
MISSISSIPPI -- KEESLER AIR FORCE BASE, THE NAVAL CONSTRUCTION BATTALION
CENTER, COLUMBUS AIR FORCE BASE, AND MERIDIAN NAVAL AIR STATION.  PRIOR
TO 1966, THE OFFICERS' CLUBS, THE POST EXCHANGES, AND THE SHIP'S STORES
-- WHICH ARE RUN WITH FUNDS DERIVED FROM OPERATIONS RATHER THAN FROM
FUNDS APPROPRIATED BY THE UNITED STATES -- ON THESE FOUR BASES HAD
PURCHASED LIQUOR FROM DISTILLERS AND SUPPLIERS LOCATED OUTSIDE THE
STATE OF MISSISSIPPI. 

[[HC366'(ORIGINAL DOCUMENT PAGE 366)'  FOLLOWING THE PASSAGE OF THE
MISSISSIPPI LOCAL OPTION LAW, THESE NONAPPROPRIATED FUND ACTIVITIES
ELECTED TO CONTINUE THE PRACTICE OF PURCHASING LIQUOR SUPPLIES OUTSIDE
THE STATE RATHER THAN TO PURCHASE LIQUOR FROM THE COMMISSION.  EFFORTS
WERE MADE BY MILITARY AUTHORITIES TO CONVINCE THE COMMISSION NOT TO
COLLECT THE MARKUP ON OUT-OF-STATE LIQUOR PURCHASES BY NONAPPROPRIATED
FUND ACTIVITIES, BUT THESE EFFORTS FAILED, AND THE COMMISSION COMPELLED
OUT-OF-STATE DISTILLERS AND SUPPLIERS TO COLLECT AND REMIT THE MARK-UP
ON MILITARY SALES UNDER THREAT OF CRIMINAL PROSECUTION AND OF
DELISTING, THAT IS, WITHDRAWAL OF THE PRIVILEGE OF SELLING TO THE
COMMISSION FOR RETAILING WITHIN MISSISSIPPI.  /5/  THE MILITARY
AUTHORITIES SOUGHT TO PAY THE MARKUP INTO AN ESCROW FUND PENDING
JUDICIAL DETERMINATION OF THE LEGALITY OF THE MARKUP AS APPLIED TO
MILITARY PURCHASES.  BUT THE COMMISSION REFUSED TO ACCEPT SUCH AN
ARRANGEMENT, AND IN ORDER TO OBTAIN LIQUOR SUPPLIES THE NONAPPROPRIATED
FUND ACTIVITIES HAVE HAD TO PAY THE MARKUP TO THE DISTILLERS AND
SUPPLIERS, ALBEIT UNDER PROTEST.  /6/ 

IN NOVEMBER 1969, THE UNITED STATES BROUGHT THIS ACTION SEEKING
DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE CONTINUED ENFORCEMENT OF
REGULATION 25, PLUS A JUDGMENT IN THE TOTAL AMOUNT PAID TO THE
COMMISSION, THROUGH THE SUPPLIERS, SINCE THE IMPOSITION OF THE MARKUP
ON MILITARY PURCHASES.  THE COMPLAINT ALLEGED THAT THE UNITED STATES
HAS EXCLUSIVE JURISDICTION OVER KEESLER AIR FORCE BASE AND THE NAVAL
CONSTRUCTION BATTALION CENTER, AND THAT MISSISSIPPI AND THE UNITED
STATES EXERCISE CONCURRENT JURISDICTION OVER COLUMBUS AIR FORCE BASE
AND MERIDIAN NAVAL AIR STATION. 

[[HC367'(ORIGINAL DOCUMENT PAGE 367)'  THE COMPLAINT CONTENDED THAT
THE REGULATION WAS INVALID BECAUSE IT CONTENDED THAT THE REGULATION WAS
INVALID BECAUSE IT CONSITUTED AN ATTEMPT BY THE STATE TO LEGISLATE WITH
RESPECT TO MILITARY FACILITIES AND TERRITORY OVER WHICH THE CONGRESS
HAS EXCLUSIVE LEGISLATIVE AUTHORITY; /7/  TO IMPOSE A TAX ON FEDERAL
INSTRUMENTALITIES AND THEREBY INFRINGE UPON THE FEDERAL GOVERNMENT'S
IMMUNITY FROM STATE TAXATION; /8/  AND TO INTERFERE WITH FEDERAL
PROCUREMENT REGULATIONS AND POLICY ESTABLISHED BY THE SECRETARY OF
DEFENSE PURSUANT TO AUTHORITY GRANTED TO HIM BY CONGRESS.  /9/  THE
COMPLAINT ALSO ASKED THAT A THREE-JUDGE COURT BE CONVENED. 

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, THE DISTRICT COURT RULED IN
FAVOR OF THE COMMISSION, UPHOLDING THE VALIDITY OF THE CHALLENGED
REGULATION.  340 F. SUPP. 903 (SD MISS.  1972).  THE DISTRICT COURT
AGREED THAT THE UNITED STATES HAD EXCLUSIVE JURISDICTION OVER TWO OF
THE FOUR BASES AND CONCURRENT JURISDICTION OVER THE REMAINING TWO.  BUT
IT CONCLUDED THAT CONGRESS' CONSITUTIONAL POWERS OVER THE MILITARY
FORCES AND OVER TERRITORY BELONGING TO THE UNITED STATES "ARE
DIMINISHED BY THE EXPRESS PROHIBITION OF THE XXI AMENDMENT AS TO ALL
PACKAGED LIQUOR TRANSACTIONS WHICH (1) ARE MADE ON EXCLUSIVELY FEDERAL
ENCLAVES BUT WITHOUT RESTRICTION UPON USE AND CONSUMPTION OF SUCH
LIQUORS OUTSIDE THE BASE, OR (2) TAKE PLACE ON MILITARY INSTALLATIONS
OVER WHICH THE STATE AND FEDERAL GOVERNMENT EXERCISE CONCURRENT
JURISDICTION."  ID., AT 904.  IN LIGHT OF THIS CONCLUSION THE DISTRICT
COURT FOUND IT UNNECESSARY TO CONSIDER THE IMPORT OF THE PROCUREMENT
REGULATIONS ISSUED BY THE SECRETARY OF DEFENSE.  NOR DID IT DISCUSS THE
CONTENTION THAT THE MARKUP CONSTITUTED AN IMPERMISSIBLE TAX UPON
FEDERAL INSTRUMENTALITIES. 

[[HC368'(ORIGINAL DOCUMENT PAGE 368)'  ON APPEAL BY THE UNITED
STATES, WE NOTED PROBABLE JURISDICTION, 409 U.S. 1005 (1972).  /10/
FOR THE REASONS WHICH FOLLOW, WE NOW HOLD THAT THE DISTRICT COURT ERRED
IN CONCLUDING THAT THE TWENTY-FIRST AMENDMENT PROVIDES THE STATE WITH
SUFFICIENT AUTHORITY OVER LIQUOR TRANSACTIONS TO SUPPORT THE
APPLICATION OF THE REGULATION TO THE TWO BASES OVER WHICH THE UNITED
STATES EXERCISES EXCLUSIVE JURISDICTION, /11/  AND WE VACATE AND REMAND
THE CASE TO THE DISTRICT COURT FOR CONSIDERATION OF FURTHER ARGUMENTS,
RELEVANT TO THE NONAPPROPRIATED FUND ACTIVITIES ON ALL FOUR BASES, THAT
IT DID NOT REACH. 

        I 

[[HC369'(ORIGINAL DOCUMENT PAGE 369)' 

A. WITH RESPECT TO THE TWO BASES OVER WHICH IT CLAIMS EXCLUSIVE
JURISDICTION, KEESLER AIR FORCE BASE AND THE NAVAL CONSTRUCTION
BATTALION CENTER, THE GOVERNMENT PLACES PRINCIPAL RELIANCE UPON AR. I,
^ 8, CL. 17, OF THE CONSTITUTION.  THAT CLAUSE EMPOWERS CONGRESS TO
"EXERCISE EXCLUSIVE LEGISLATION . . . OVER ALL PLACES PURCHASED BY THE
CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR
THE ERECTION OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER
NEEDFUL BUILDINGS." 

IN PACIFIC COAST DAIRY, INC. V. DEPT. OF AGRICULTURE, 318 U.S. 285
(1943), THE COURT CONSIDERED THAT CLAUSE SUFFICIENT TO RENDER
INEFFECTIVE AN ATTEMPT BY THE STATE OF CALIFORNIA TO FIX THE PRICES AT
WHICH CALIFORNIA MILK PRODUCERS COULD SELL MILK TO MILITARY AUTHORITIES
AT MOFFETT FIELD, OVER WHICH THE UNITED STATES EXERCISED EXCLUSIVE
JURISDICTION. 

     "WHEN THE FEDERAL GOVERNMENT ACQUIRED THE TRACT (UPON WHICH

MOFFETT FIELD WAS LOCATED), LOCAL LAW NOT INCONSISTENT WITH

 FEDERAL POLICY REMAINED IN FORCE UNTIL ALTERED BY NATIONAL

  LEGISLATION.  THE STATE STATUTE INVOLVED WAS ADOPTED LONG AFTER

  THE TRANSFER OF SOVEREIGNTY AND WAS WITHOUT FORCE IN THE

  ENCLAVE.  IT FOLLOWS THAT CONTRACTS TO SELL AND SALES CONSUMMATED

  WITHIN THE ENCLAVE CANNOT BE REGULATED BY THE CALIFORNIA LAW.  TO

  HOLD OTHERWISE WOULD BE TO AFFIRM THAT CALIFORNIA MAY IGNORE THE

  CONSTITUTIONAL PROVISION THAT "THIS CONSTITUTION, AND THE LAWS OF

  THE UNITED STATES WHICH SHALL BE MADE IN PURSUANCE THEREOF; . . .

SHALL BE THE SUPREME LAW OF THE LAND; . . .'  IT WOULD BE A

  DENIAL OF THE FEDERAL POWER 'TO EXERCISE EXCLUSIVE LEGISLATION.' 

  AS RESPECTS SUCH FEDERAL TERRITORY CONGRESS HAS THE COMBINED

  POWERS OF A GENERAL AND A STATE GOVERNMENT."  ID., AT 294

  (FOOTNOTES OMITTED). 

[[HC370'(ORIGINAL DOCUMENT PAGE 370)' 

THE VIEW OF ART. I, ^ 8, CL. 17, EXPRESSED IN PACIFIC COAST DAIRY
WAS REAFFIRMED IN PAUL V. UNITED STATES, 371 U.S. 245, 263 - 270
(1963).  THERE THE COURT WAS CONFRONTED WITH ANOTHER ATTEMPT BY
CALIFORNIA TO ENFORCE MINIMUM WHOLESALE PRICE REGULATIONS ON SALES OF
MILK TO THE UNITED STATES AT THREE OTHER MILITARY INSTALLATIONS LOCATED
WITHIN THE STATE.  A PORTION OF THE MILK WAS PURCHASED -- AS ARE THE
LIQUOR SUPPLIES HERE AT ISSUE -- WITH NONAPPROPRIATED FUNDS FOR USE AT
OFFICERS CLUBS AND FOR RESALE AT POST EXCHANGES.  AS TO THESE
NONAPPROPRIATED FUND PURCHASES, THE COURT FOUND IT NECESSARY TO REMAND
THE CASE TO DETERMINE WHETHER THE STATE REGULATORY SCHEME PREDATED THE
TRANSFER OF SOVEREIGNTY OVER ANY OF THE PARTICULAR BASES TO THE UNITED
STATES, /12/  AND, EVEN IF NOT, WHETHER THE UNITED STATES IN FACT
EXERCISED EXCLUSIVE JURISDICTION OVER THE AREAS IN WHICH PURCHASES AND
SALES OF MILK WERE MADE.  BUT IN SO DOING THE COURT EMPHASIZED THAT
"(THE CASES MAKE CLEAR THAT THE GRANT OF 'EXCLUSIVE' LEGISLATIVE POWER
TO CONGRESS OVER ENCLAVES THAT MEET THE REQUIREMENTS OF ART. I, ^ 8,
CL. 17, BY ITS OWN WEIGHT, BARS STATE REGULATION WITHOUT SPECIFIC
CONGRESSIONAL ACTION."  ID., AT 263. 

WERE IT NOT FOR THE FACT THAT WE DEAL HERE WITH A STATE'S ATTEMPT TO
REGULATE AND DERIVE INCOME FROM WHOLESALE TRANSACTIONS IN LIQUOR -- A
FACT WHICH RAISES FURTHER QUESTIONS AS TO THE EXTENT OF THE POWER
CONFERRED UPON THE STATES UNDER THE TWENTY-FIRST AMENDMENT AND THE
POSSIBILITY OF CONSENT BY THE UNITED STATES TO STATE TAXATION --
PACIFIC COAST DAIRY AND PAUL WOULD SEEM TO BE SUFFICIENT TO DISPOSE OF
THIS CASE INSOFAR AS KEESLER AIR FORCE BASE AND THE NAVAL CONSTRUCTION
BATTALION CENTER ARE CONCERNED. 

[[HC371'(ORIGINAL DOCUMENT PAGE 371)'  SEE ALSO JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, 140 (1937); STANDARD OIL CO. V.
CALIFORNIA, 291 U.S. 242 (1934).  THE TRANSACTIONS HERE AT ISSUE ARE
STRICTLY BETWEEN THE UNITED STATES AND OUT-OF-STATE DISTILLERS AND
SUPPLIERS.  THE GOODS ARE ORDERED BY THE OFFICERS'  CLUBS AND OTHER
NONAPPROPRIATED FUND ACTIVITIES AND THEN DELIVERED WITHIN THE MILITARY
BASES OVER WHICH THE UNITED STATES CLAIMS EXCLUSIVE JURISDICTION. 
THUS, WITH RESPECT TO THE INITIAL SALE AND DELIVERY OF THE LIQUOR BY
THE SUPPLIERS TO MILITARY FACILITIES LOCATED IN EXCLUSIVELY FEDERAL
ENCLAVES, NOTHING OCCURS WITHIN THE STATE THAT GIVES IT JURISDICTION TO
REGULATE THE INITIAL WHOLESALE TRANSACTION.  /13/  CF. POLAR ICE CREAM
& CREAMERY CO. V. ANDREWS, 375 U.S. 361, 382 - 383 (1964); PENN
DAIRIES, INC. V. MILK CONTROL COMM'N, 318 U.S. 261 (1943). 

THERE CAN BE NO QUESTION THAT THE TRACTS OF LAND UPON WHICH KEESLER
AIR FORCE BASE AND THE NAVAL CONSTRUCTION BATTALION CENTER ARE LOCATED
WERE "PURCHASED BY THE CONSENT OF THE LEGISLATURE" OF MISSISSIPPI
WITHIN THE MEANING OF ART. I, ^ 8, CL. 17.  DESPITE ITS ULTIMATE
RESOLUTION OF THE CASE, THE DISTRICT COURT ACKNOWLEDGED THAT THE UNITED
STATES HAD ACQUIRED EXCLUSIVE JURISDICTION OVER THESE TWO BASES.  340
F. SUPP., AT 904, 906.  THE FEDERAL GOVERNMENT ACQUIRED THE RELEVANT
LANDS BY CONDEMNATION BETWEEN 1941 AND 1950.  /14/ 

[[HC372'(ORIGINAL DOCUMENT PAGE 372)'  AND, THROUGHOUT THE PERIOD OF
ACQUISITION, THE STATE HAD EXPRESSLY GIVEN ITS "CONSENT . . ., IN
ACCORDANCE WITH THE 17TH CLAUSE, 8TH SECTION, AND OF THE 1ST ARTICLE OF
THE CONSTITUTION OF THE UNITED STATES, TO THE ACQUISITION BY THE UNITED
STATES, BY PURCHASE, CONDEMNATION OR OTHERWISE, OF ANY LAND IN THIS
STATE . . . FOR CUSTOM HOUSES, POST OFFICES, OR OTHER PUBLIC
BUILDINGS,"  /15/  SUBJECT ONLY TO THE RIGHT OF THE STATE TO SERVE
CIVIL AND CRIMINAL PROCESS UPON SUCH PUBLIC LANDS.  /16/  TRUE, THE
ASSENT OF THE UNITED STATES TO THE EXERCISE OF EXCLUSIVE JURISDICTION
OVER THE LANDS OCCUPIED BY THE TWO BASES WAS A NECESSARY FINAL STEP IN
LIGHT OF 40 U.S.C. ^ 255, /17/  BUT SUCH ASSENT WAS GIVEN THROUGH A
SERIES OF LETTERS FROM GOVERNMENT OFFICIALS TO THE GOVERNORS OF
MISSISSIPPI BETWEEN 1942 AND 1950.  /18/ 

[[HC373'(ORIGINAL DOCUMENT PAGE 373)' 

ACCORDINGLY, UNLESS THE FACT THAT IN THIS CASE THE STATE HAS
ATTEMPTED TO DERIVE REVENUE FROM PRIVATE WHOLESALE LIQUOR TRANSACTIONS
PROVIDES A DECISIVE DISTINCTION, OUR PRIOR CASES MAKE IT CLEAR THAT THE
TAX COMMISSION COULD NOT ATTACH ITS MARKUP TO THE SALE AND DELIVERY OF
LIQUOR BY OUT-OF-STATE SUPPLIERS TO NONAPPROPRIATED FUND ACTIVITIES
WITHIN KEESLER AIR FORCE BASE AND THE NAVAL CONSTRUCTION BATTALION
CENTER.     B. BUT THE TAX COMMISSION CONTENDS -- AS THE DISTRICT COURT
HELD -- THAT THE APPLICATION OF THE MARKUP REGULATION TO THE TWO BASES
OVER WHICH THE UNITED STATES EXERCISES EXCLUSIVE JURISDICTION IS
SUSTAINABLE ON THE BASIS OF THE BROAD REGULATORY AUTHORITY CONFERRED
UPON THE STATES BY THE TWENTY-FIRST AMENDMENT.  THE SECOND SECTION OF
THE TWENTY-FIRST AMENDMENT PROVIDES: 

      "THE TRANSPORTATION OR IMPORTATION INTO ANY STATE, TERRITORY,

  OR POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE THEREIN OF

  INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY

  PROHIBITED." 

IN COLLINS V. YOSEMITE PARK & CURRY CO., 304 U.S. 518 (1938), A
CONCESSIONAIRE WHICH OPERATED HOTELS, CAMPS, AND STORES IN YOSEMITE
NATIONAL PARK, UNDER A CONTRACT WITH THE SECRETARY OF THE INTERIOR,
SOUGHT TO ENJOIN THE EFFORTS OF CALIFORNIA AUTHORITIES TO ENFORCE THE
STATE'S ALCOHOLIC BEVERAGE CONTROL ACT WITHIN THE LIMITS OF THE PARK. 

[[HC374'(ORIGINAL DOCUMENT PAGE 374)'  THE STATE LIQUOR LAW WOULD
HAVE REQUIRED THE CONCESSIONAIRE TO APPLY FOR PERMITS FOR THE
IMPORTATION AND SALE OF LIQUOR AND TO PAY RELATED TACES AND FEES.  THE
COURT FOUND THAT THE STATE HAD CEDED TO THE UNITED STATES, AND THAT THE
UNITED STATES HAD ACCEPTED, EXCLUSIVE JURISDICTION OVER YOSEMITE
NATIONAL PARK, EXCEPT INSOFAR AS THE STATE HAD EXPRESSLY RESERVED THE
RIGHT TO TAX PERSONS AND CORPORATIONS WITHIN THE PARK.  ID., AT 527 -
530.  IN LIGHT OF THIS DETERMINATION, THE COURT HELD THAT "(AS THERE IS
NO RESERVATION OF THE RIGHT TO CONTROL THE SALE OR USE OF ALCOHOLIC
BEVERAGES, SUCH REGULATORY PROVISIONS AS ARE FOUND IN THE ACT" --
NAMELY, THE PROVISIONS CONCERNING IMPORTATION AND SALES PERMITS -- "ARE
UNENFORCEABLE IN THE PARK."  ID., AT 530.  IN SUPPORT OF ITS ATTEMPT TO
APPLY THE PERMIT PROVISIONS WITHIN THE PARK, THE STATE PLACED SPECIFIC
RELIANCE UPON THE REGULATORY AUTHORITY CONFERRED UPON IT BY ^ 2 OF THE
TWENTY-FIRST AMENDMENT.  BUT THE COURT REJECTED THIS ARGUMENT, AGREEING
INSTEAD WITH THE DISTRICT COURT'S CONCLUSION "THAT THOUGH THE AMENDMENT
MAY HAVE INCREASED 'THE STATE'S POWER TO DEAL WITH THE PROBLEM . . .(OF
LIQUOR IMPORTATION), IT DID NOT INCREASE ITS JURISDICTION.'"  ID., AT
538.  THE COURT THEN WENT ON TO STATE: 

"AS TERRITORIAL JURISDICTION OVER THE PARK WAS IN THE UNITED STATES,
THE STATE COULD NOT LEGISLATE FOR THE AREA MERELY ON ACCOUNT OF THE XXI
AMENDMENT.  THERE WAS NO TRANSPORTATION INTO CALIFORNIA 'FOR DELIVERY
OR USE THEREIN.'  THE DELIVERY AND USE IS IN THE PARK, AND UNDER A
DISTINCT SOVEREIGNTY.  WHERE EXCLUSIVE JURISDICTION IS IN THE UNITED
STATES, WITHOUT POWER IN THE STATE TO REGULATE ALCOHOLIC BEVERAGES, THE
XXI AMENDMENT IS NOT APPLICABLE."  IBID. (FOOTNOTES OMITTED.) 

[[HC375'(ORIGINAL DOCUMENT PAGE 375)'  IT IS TRUE, AS THE TAX
COMMISSION ARGUES, THAT THE COURT DID SUSTAIN THE APPLICATION OF THE
TAX PROVISIONS OF THE STATE LIQUOR LAW WITHIN THE PARK.  BUT THIS
ASPECT OF THE DECISION WAS BOTTOMED SPECIFICALLY ON THE STATE'S
RESERVATION OF TAXING AUTHORITY IN ITS CESSION OF LANDS TO THE UNITED
STATES, ID., AT 532, 536. 

COLLINS WOULD SEEM TO COMPEL THE CONCLUSION THAT ABSENT AN
APPROPRIATE EXPRESS RESERVATION -- WHICH IS LACKING HERE -- THE TWENTY
FIRST AMENDMENT CONFERS NO POWER ON A STATE TO REGULATE -- WHETHER BY
LICENSING, TAXATION, OR OTHERWISE -- THE IMPORTATION OF DISTILLED
SPIRITS INTO TERRITORY OVER WHICH THE UNITED STATES EXERCISES EXCLUSIVE
JURISDICTION.  SEE ALSO JOHNSON V. YELLOW CAB TRANSIT CO., 321 U.S. 383
(1944).  CERTAINLY, THE AMENDMENT WAS INTENDED TO FREE THE STATE OF
"TRADITIONAL COMMERCE CLAUSE LIMITATIONS WHEN IT RESTRICTS THE
IMPORTATION OF INTOXICANTS DESTINED FOR USE, DISTRIBUTION, OR
CONSUMPTION WITHIN ITS BORDERS."  HOSTETTER V. IDLEWILD BON VOYAGE
LIQUOR CORP., 377 U.S. 324, 330 (1964).  SEE ALSO JOSEPH E. SEAGRAM &
SONS, INC. V. HOSTETTER, 384 U.S. 35, 42 (1966).  BUT THE GOVERNMENT
CONTENDS THAT HERE, AS IN COLLINS, THERE WAS NO "TRANSPORTATION OR
IMPORTATION (OF LIQUOR) INTO (THE) STATE . . . FOR DELIVERY OR USE
THEREIN" WITHIN THE MEANING OF THE SECOND SECTION AND THEREFORE THE
TWENTY-FIRST AMENDMENT DOES NOT ASSIST THE TAX COMMISSION'S CASE.  WE
AGREE. 

THE DISTRICT COURT ACKNOWLEDGED THAT KEESLER AIR FORCE BASE AND THE
NAVAL CONSTRUCTION BATTALION CENTER "ARE TO MISSISSIPPI AS THE
TERRITORY OF ONE OF HER SISTER STATES OR A FOREIGN LAND.  THEY
CONSTITUTE FEDERAL ISLANDS WHICH NO LONGER CONSTITUTE ANY PART OF
MISSISSIPPI NOR FUNCTION UNDER ITS CONTROL."  340 F. SUPP., AT 906. 
AND IT RECOGNIZED THAT IN LIGHT OF COLLINS, "(THE IMPORTATION OF
PROPERTY ONTO THESE BASES FOR USE THEREON WOULD CLEARLY BE OUTSIDE THE
AMBIT OF THE XXI AMENDMENT." 

[[HC376'(ORIGINAL DOCUMENT PAGE 376)'  ID., AT 906 - 907.  BUT THE
COURT CONSIDERED COLLINS TO BE LIMITED STRICTLY TO THE SITUATION IN
WHICH DELIVERY AND USE OF THE LIQUOR WAS RESTRICTED TO THE EXCLUSIVE
ENCLAVE, WHEREAS IN THIS CASE "(THE UNDISPUTED FACTS SHOW THAT IT WAS
ACQUIRED FOR THE PURPOSE OF BEING SOLD TO INDIVIDUALS FOR THEIR USE AND
CONSUMPTION EITHER ON THE BASE OR IN THE SURROUNDING STATE."  ID., AT
907.  SUCH OFF-BASE CONSUMPTION WAS SUFFICIENT, IN THE DISTRICT COURT'S
VIEW, TO SUBJECT THE TRANSACTIONS BETWEEN THE OUT-OF-STATE SUPPLIERS
AND THE NONAPPROPIRATED FUND ACTIVITIES TO THE REGULATORY AUTHORITY
GRANTED TO MISSISSIPPI UNDER THE TWENTY-FIRST AMENDMENT.  WE THINK,
HOWEVER, THAT THE DISTRICT COURT UNJUSTIFIABLY NARROWED THE DECISION IN
COLLINS. 

THERE IS, IN FACT, NO INDICATION IN COLLINS THAT THE LIQUOR PURCHASED
FROM THE CONCESSIONAIRE'S FACILITIES IN THE PARK WAS ALWAYS CONSUMED
WITHIN THE LIMITS OF THE PARK.  TO THE CONTRARY, THE COMPLAINT IN THAT
CASE SPECIFICALLY STATED THAT THE LIQUOR IMPORTED FOR SALE IN THE PARK
FACILITIES WAS SOLD "FOR CONSUMPTION ON OR OFF THE PREMISES WHERE
SOLD."  /19/  HENCE, IT IS JUST AS REASONABLE TO ASSUME THAT SOME OF
THE LIQUOR SOLD IN THE PARK WAS CONSUMED OUTSIDE ITS LIMITS IN THE
STATE OF CALIFORNIA AS IT IS TO ASSUME THAT SOME OF THE LIQUOR SOLD ON
THESE TWO BASES WAS ULTIMATELY CONSUMED IN THE STATE OF MISSISSIPPI. 
/20/  THE COLLINS COURT, IN REJECTING CALIFORNIA'S RELIANCE UPON THE
TWENTY-FIRST AMENDMENT, POINTED, TO BE SURE, TO THE FACT THAT "DELIVERY
AND USE" OF THE LIQUOR WAS "IN THE PARK," 304 U.S., AT 538. 

[[HC377'(ORIGINAL DOCUMENT PAGE 377)'  BUT, CONSIDERED IN THE
CONTEXT OF THE CASE, THE COURT'S REFERENCE CLEARLY WAS TO THE
TRANSACTION BETWEEN THE OUT-OF-STATE SUPPLIERS AND THE PARK
CONCESSIONAIRE.  IT WAS THAT TRANSACTION WHICH CALIFORNIA SOUGHT TO
REGULATE, AND INSOFAR AS THAT TRANSACTION WAS CONCERNED, THE DELIVERY
AND USE -- THAT IS, THE DELIVERY, STORAGE, AND SALE -- OF THE LIQUOR
OCCURRED EXCLUSIVELY WITHIN THE PARK.  THE PARTICULAR TRANSACTIONS AT
ISSUE IN THIS CASE BETWEEN OUT-OF-STATE SUPPLIERS AND THE MILITARY
FACILITIES STAND ON NO DIFFERENT FOOTING, AND THUS, GIVEN THAT THE
STATE HAS RETAIN ONLY THE RIGHT TO SERVE PROCESS ON THE TWO BASES,
COLLINS IS DISPOSITIVE OF THE COMMISSION'S EFFORT TO INVOKE THE STATE'S
AUTHORITY UNDER THE SECOND SECTION OF THE TWENTY-FIRST AMENDMENT TO
IMPOSE ITS MARKUP ON THESE TRANSACTIONS. 

THIS IS NOT TO SUGGEST THAT THE STATE IS WITHOUT AUTHORITY EITHER TO
REGULATE LIQUOR SHIPMENTS DESTINE FOR THE BASES WHILE SUCH SHIPMENTS
ARE PASSING THROUGH MISSISSIPPI OR TO REGULATE THE TRANSPORTATION OF
LIQUOR OFF THE BASES AND INTO MISSISSIPPI FOR CONSUMPTION THERE.  THUS,
WHILE IT MAY BE TRUE THAT THE MERE "SHIPMENT (OF LIQUOR) THROUGH A
STATE IS NOT TRANSPORTATION OR IMPORTATION INTO THE STATE WITHIN THE
MEANING OF THE (TWENTY-FIRST) AMENDMENT,"  CARTER V. VIRGINIA, 321 U.S.
131, 137(1944), A STATE MAY, IN THE ABSENCE OF CONFLICTING FEDERAL
REGULATION, PROPERLY EXERCISE ITS POLICE POWERS TO REGULATE AND CONTROL
SUCH SHIPMENTS DURING THEIR PASSAGE THROUGH ITS TERRITORY INSOFAR AS
NECESSARY TO PREVENT THE "UNLAWFUL DIVERSION" OF LIQUOR "INTO THE
INTERNAL COMMERCE OF THE STATE,"  SEE HOSTETTER V. IDLEWILD BON VOYAGE
LIQUOR CORP., 377 U.S., AT 333, 331 N. 10; CARTER V. VIRGINIA, SUPRA;
DUCKWORTH V. ARKANSAS, 314 U.S. 390 (1941). 

[[HC378'(ORIGINAL DOCUMENT PAGE 378)'  AND THE STATE, OF COURSE,
REMAINS FREE TO REGULATE OR RESTRICT, UNDER ^ 2 OF THE TWENTY-FIRST
AMENDMENT, THE TRANSPORTATION OFF THE TWO BASES OF LIQUOR THAT HAS BEEN
PURCHASED AND IS IN FACT "DESTINED FOR USE, DISTIBUTION, OR
CONSUMPTION" WITHIN ITS BORDERS, SEE JOSEPH E. SEAGRAM & SONS, INC. V.
HOSTETTER, 384 U.S., AT 42; SEE ALSO CALIFORNIA V. LARUE, 409 U.S. 109,
114 (1972). 

BUT THERE IS NO INDICATION HERE THAT THE MARKUP IS AN EFFORT TO DEAL
WITH PROBLEMS OF DIVERSION OF LIQUOR FROM OUT-OF-STATE SHIPMENTS
DESTINED FOR ONE OF THE TWO BASES.  NOR NEED WE NOW DECIDE THE PRECISE
PARAMETERS OF THE STATE'S AUTHORITY TO REGULATE EFFORTS TO IMPORT
LIQUOR FROM THE EXCLUSIVELY FEDERAL ENCLAVES, SINCE THAT QUESTION IS
NOT BEFORE US.  FOR OUR PURPOSES HERE, IT SUFFICES TO NOTE THAT ANY
LEGITIMATE STATE INTEREST IN REGULATING THE IMPORTATION INTO
MISSISSIPPI OF LIQUOR PURCHASED ON THE BASES BY INDIVIDUALS CANNOT
EFFECT AN EXTENSION OF THE STATE'S TERRITORIAL JURISDICTION SO AS TO
PERMIT IT TO REGULATE THE DISTINCT TRANSACTIONS BETWEEN THE SUPPLIERS
AND THE NONAPPROPRIATED FUND ACTIVITIES THAT INVOLVE ONLY THE
IMPORTATION OF LIQUOR INTO THE FEDERAL ENCLAVES WHICH "ARE TO
MISSISSIPPI AS THE TERRITORY OF ONE OF HER SISTER STATES OR A FOREIGN
LAND," 340 F. SUPP., AT 906.  TO CONCLUDE OTHERWISE WOULD BE TO GIVE AN
UNINTENDED SCOPE TO A PROVISION DESIGNED ONLY TO AUGMENT THE POWERS OF
THE STATES TO REGULATE THE IMPORTATION OF LIQUOR DESTINED FOR USE,
DISTRIBUTION, OR CONSUMPTION IN ITS OWN TERRITORY, NOT TO "'INCREASE
ITS JURISDICTION,'" COLLINS V. YOSEMITE PARK & CURRY CO., 304 U.S., AT
538. 

C. BEFORE THIS COURT THE TAX COMMISSION ALSO ASSERTS THAT THE MARKUP
MIGHT PROPERLY BE VIEWED AS A SALES TAX AND THAT THE UNITED STATES HAS
CONSENTED TO THE IMPOSITION OF SUCH A "TAX" IN THE CONTEXT OF THE TWO
EXCLUSIVE JURISDICTION BASES UNDER THE BUCK ACT OF 1940, 54 STAT. 1059,
NOW 4 U.S.C. ^^ 105 - 110. 

[[HC379'(ORIGINAL DOCUMENT PAGE 379)'  SECTION 105 (A) OF THAT ACT
PROVIDES IN PART: 

"NO PERSON SHALL BE RELIEVED FROM LIABILITY FOR PAYMENT OF,
COLLECTION OF, OR ACCOUNTING FOR ANY SALES OR USE TAX LEVIED BY ANY
STATE, OR BY ANY DULY CONSTITUTED TAXING AUTHORITY THEREIN, HAVING
JURISDICTION TO LEVY SUCH A TAX, ON THE GROUND THAT THE SALE OR USE,
WITH RESPECT TO WHICH SUCH TAX IS LEVIED, OCCURRED IN WHOLE OR IN PART
WITHIN A FEDERAL AREA . . ."  4 U.S.C. ^ 105(A).  HOWEVER, ^ 107(A) OF
THE ACT SPELLS OUT CERTAIN EXCEPTIONS TO THE CONSENT PROVISION
CONTAINED IN ^ 105(A).  SPECIFICALLY, ^ 107(A) STATES THAT ^ 105(A)
"SHALL NOT BE DEEMED TO AUTHORIZE THE LEVY OR COLLECTION OF ANY TAX ON
OR FROM THE UNITED STATES OR ANY INSTRUMENTALITY THEREOF . . ." 
WHETHER THE MARKUP SHOULD BE TREATED AS A TAX ON SALES OCCURRING WITHIN
A FEDERAL AREA WITHIN THE MEANING OF ^ 105(A), SEE ALSO 4 U.S.C. ^
110(B), AND, IF SO, WHETHER THE EXCEPTION CONTAINED IN ^ 107(A)
NEVERTHELESS SERVES TO REMOVE THE MARKUP FROM THE CONSENT PROVISION FOR
PURPOSES OF THE TWO EXCLUSIVELY FEDERAL ENCLAVES ARE ISSUES WHICH THE
RECORD REVEALS WERE NEVER CONSIDERED, MUCH LESS DECIDED, BY THE
DISTRICT COURT.  HAVING FOUND THAT THE DISTRICT COURT ERRED IN THE
BASIS ON WHICH IT DID DISPOSE OF THIS CASE, WE THINK THAT THESE
ADDITIONAL ISSUES ARE APPROPRIATELY LEFT FOR DETERMINATION BY THAT
COURT IN THE FIRST INSTANCE ON REMAND. 

        II 

THE TWO BASES OVER WHICH THE UNITED STATES CLAIMS TO EXERCISE
JURISDICTION CONCURRENT WITH THE STATE -- COLUMBUS AIR FORCE BASE AND
MERIDIAN NAVAL AIR STATION -- PRESENT SOMEWHAT DIFFERENT PROBLEMS. 
SINCE THE UNITED STATES HAS NOT ACQUIRED EXCLUSIVE JURISDICTION OVER
THE LAND UPON WHICH THESE BASES ARE LOCATED, THE GOVERNMENT IS UNABLE
TO REST ITS CLAIMS FOR IMMUNITY FROM THE MARKUP WITH RESPECT TO
PURCHASES OF LIQUOR FOR THE NONAPPROPRIATED FUND ACTIVITIES OF THESE
BASES ON ART. I, ^ 8, CL. 17. 

[[HC380'(ORIGINAL DOCUMENT PAGE 380)'  RATHER, IT BASES ITS ARGUMENT
ON THE THEORIES THAT THE MARKUP EITHER IS AN UNCONSTITUTIONAL TAX UPON
INSTRUMENTALITIES OF THE UNITED STATES /21/  OR IS INVALID UNDER THE
SUPREMACY CLAUSE BECAUSE IT CONFLICTS WITH FEDERAL PROCUREMENT
REGULATIONS AND POLICY.  /22/  THE DISTRICT COURT SPECIFICALLY FOUND IT
UNNECESSARY TO REACH THE GOVERNMENT'S ARGUMENT UNDER THE SUPREMACY
CLAUSE, AND IMPLICITLY DECLINED TO REACH THE GOVERNMENT'S ARGUMENT
CONCERNING TAXATION OF UNITED STATES INSTRUMENTALITIES.  INSTEAD,
HAVING CONCLUDED THAT, DESPITE AR. I, ^ 8, CL. 17, THE TWENTY-FIRST
AMENDMENT PERMITTED THE TAX COMMISSION TO APPLY THE MARKUP TO OUT-OF
STATE PURCHASES DESTINED FOR NONAPPROPRIATED FUND ACTIVITIES ON THE TWO
BASES OVER WHICH THE UNITED STATES EXERCISES EXCLUSIVE JURISDICTION,
THE DISTRICT COURT SIMPLY REASONED THAT "(A) FORTIORI, THE LIQUOR SALES
MADE ON THE TWO BASES OVER WHICH THE FEDERAL AND STATE GOVERNMENTS
EXERCISE CONCURRENT JURISDICTION -- MERIDIAN AND COLUMBUS -- ARE
SIMILARLY SUBJECT TO MISSISSIPPI LAW."  340 F. SUPP., AT 907. 

THE DISTRICT COURT'S RATIONALE FOR ADOPTING THIS VIEW IS NOT
ENTIRELY CLEAR.  CERTAINLY IT WAS CORRECT WHEN IT FURTHER OBSERVED THAT
"AS TO THE CONCURRENT JURISDICTION BASES, THE LIQUOR SALES TRANSACTIONS
OCCURRED WITHIN THE JURISDICTION OF THE STATE OF MISSISSIPPI, EVEN
WHERE THE CONSUMPTION OR OTHER USE OF THE LIQUOR WAS CONSUMMATED WITHIN
THE TERITORIAL CONFINES OF THE BASE."  IBID.  BUT THIS SERVES ONLY TO
DISPOSE OF ANY QUESTION UNDER ART. I, ^ 8, CL. 17.  AS ALREADY NOTED,
HOWEVER, THE GOVERNMENT DOES NOT PURPORT TO REST ITS CASE WITH RESPECT
TO TRANSACTIONS INVOLVING THE TWO BASES OVER WHICH IT EXERCISES ONLY
CONCURRENT JURISDICTION UPON THAT CLAUSE.     [[HC381'(ORIGINAL
DOCUMENT PAGE 381)'  IN ANY EVENT, WE HAVE NOW CONCLUDED THAT THE
DISTRICT COURT ERRED IN RULING THAT THE TWENTY-FIRST AMENDMENT
EMPOWERED THE STATE TAX COMMISSION TO APPLY THE MARKUP TO TRANSACTIONS
BETWEEN OUT-OF-STATE DISTILLERS AND NONAPPROPRIATED FUND ACTIVITIES
LOCATED ON THE TWO EXCLUSIVELY FEDERAL ENCLAVES.  OUR CONCLUSION
ELIMINATES THE ESSENTIAL PREMISE OF THE DISTRICT COURT'S DECISION
CONCERNING THE TWO CONCURRENT JURISDICTION BASES.  WHILE THE ARGUMENTS
UPON WHICH THE GOVERNMENT DOES RELY WITH RESPECT TO THE PURCHASE OF
LIQUOR DESTINED FOR THOSE TWO BASES PRESENT, TO BE SURE, ONLY QUESTIONS
OF LAW WHICH WE MIGHT NOW DECIDE, WE BELIEVE IT WOULD BE USEFUL TO HAVE
THE VIEWS OF THE DISTRICT COURT ON THESE ADDITIONAL ARGUMENTS, AND WE
THEREFORE REMAND THE CASE TO THE DISTRICT COURT TO ALLOW IT TO CONSIDER
INITIALLY THE GOVERNMENT'S INSTRUMENTALITY AND SUPREMACY CLAUSE
ARGUMENTS.  CF. LEWIS V. MARTIN, 397 U.S. 552, 560 (1970); FCC V. WJR,
337 U.S. 265, 285 (1949). 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  MISS.  CODE ANN. ^ 10265 - 01 ET SEQ. (SUPP. 1972). 

/2/  ID., ^ 10265 - 18(C). 

/3/  ID., ^ 10265 - 106. 

/4/  THE REGULATION, WHICH WAS ORIGINALLY NUMBERED 22, READS AS
FOLLOWS: 

"POST EXCHANGES, SHIP STORES, AND OFFICERS' CLUBS LOCATED ON
MILITARY RESERVATIONS AND OPERATED BY MILITARY PERSONNEL (INCLUDING
THOSE OPERATED BY THE NATIONAL GUARD) SHALL HAVE THE OPTION OF ORDERING
ALCOHOLIC BEVERAGES DIRECT FROM THE DISTILLER OR FROM THE ALCOHOLIC
BEVERAGE CONTROL DIVISION OF THE STATE TAX COMMISSION.  IN THE EVENT AN
ORDER IS PLACED BY SUCH ORGANIZATION DIRECTLY WITH A DISTILLER, A COPY
OF SUCH ORDER SHALL BE IMMEDIATELY MAILED TO THE ALCOHOLIC BEVERAGE
CONTROL DIVISION OF THE STATE TAX COMMISSION. 

"ALL ORDERS OF SUCH ORGANIZATIONS SHALL BEAR THE USUAL WHOLESALE
MARKUP IN PRICE BUT SHALL BE EXEMPT FROM ALL STATE TAXES.  THE PRICE OF
SUCH BEVERAGES SHALL BE PAID BY SUCH ORGANIZATIONS DIRECTLY TO THE
DISTILLER, WHICH SHALL IN TURN REMIT THE WHOLESALE MARKUP TO THE
ALCOHOLIC BEVERAGE CONTROL DIVISION OF THE STATE TAX COMMISSION MONTHLY
COVERING SHIPMENTS MADE FOR THE PREVIOUS MONTH." 

/5/  SEE STIPULATION OF FACTS (HEREINAFTER STIPULATION) APP. 36 -
38. 

/6/  OUT-OF-STATE SUPPLIERS HAD BEEN PAID $648,421.92 UNDER PROTEST
FOR SUCH MARKUPS BY JULY 31, 1971. 

/7/  SEE U.S. CONST., ART. I, ^ 8 CLS. 14 AND 17, ART. IV, ^ 3. 

/8/  SEE, E. G., M'CULLOCH V. MARYLAND, 4 WHEAT.  316 (1819). 

/9/  SEE 32 CFR ^ 261.4(C). 

/10/  SEE PAUL V. UNITED STATES, 371 U.S. 245, 249 - 250 (1963). 

/11/  IN A SPECIAL CONCURRING OPINION, JUDGE COX ADDED THAT
RECOUPMENT OF THE SUMS PAID UNDER THE MARKUP WAS ALSO BARRED BECAUSE,
IN HIS VIEW, THE PAYMENTS HAD BEEN VOLUNTARILY MADE BY THE NON
APPROPRIATED FUND ACTIVITIES.  340 F. SUPP., AT 909.  IT IS TRUE THAT
WHERE VOLUNTARY PAYMENT IS KNOWINGLY MADE PURSUANT TO AN ILLEGAL
DEMAND, RECOVERY OF THAT PAYMENT MAY BE DENIED.  SEE, E. G., UNITED
STATES V. NEW YORK & CUBA MAIL S. S. CO., 200 U.S. 488, 493 - 494
(1906); LITTLE V. BOWERS, 134 U.S. 547, 554 (1890); RAILROAD CO. V.
COMMISSIONERS, 98 U.S. 541, 543 - 544 (1879).  BUT NO SUCH VOLUNTARY
PAYMENTS ARE INVOLVED HERE.  THE TAX COMMISSION REFUSED TO ACCEPT AN
ESCROW ARRANGEMENT AND IT MADE CLEAR TO THE OUT-OF-STATE SUPPLIERS THAT
SEVERE SANCTIONS WOULD BE APPLIED TO ANYONE WHO FAILED TO CHARGE THE
MARKUP AND TO REMIT THE RESULTING FUNDS TO IT.  THUS, THE TAX
COMMISSION GAVE THE NONAPPROPRIATED FUND ACTIVITIES NO CHOICE EXCEPT TO
PAY THE MARKUP -- EITHER TO ITSELF OR TO THE OUT-OF-STATE SUPPLIERS --
IN ORDER TO OBTAIN LIQUOR SUPPLIES OR ELSE TO CEASE DISPENSING
ALCOHOLIC BEVERAGES ALTOGETHER -- THAT IS, TO DISCONTINUE AN ENTIRE
LINE OF BUSINESS.  OBVIOUSLY, THIS WAS NO CHOICE AT ALL.  THE PAYMENTS
OF THE MARKUP WERE OBTAINED ONLY BY COERCION; THEY WERE PAID UNDER
PROTEST; AND THUS THEY HARDLY CAN BE SAID TO HAVE BEEN VOLUNTARY.  SEE,
E. G., WARD V. BOARD OF COUNTY COMMR'S OF LOVE COUNTY, 253 U.S. 17, 23
(1920); ATCHISON, T. & S. F. R. CO. V. O'CONNOR, 223 U.S. 280, 286 -
287 (1912); OCEANIC STEAM NAVIGATION CO. V. STRANAHAN, 214 U.S. 320,
329 (1909); SWIFT CO. V. UNITED STATES, 111 U.S. 22, 28 - 29 (1884). 

/12/  "THE CONSTITUTION DOES NOT COMMAND THAT EVERY VESTIGE OF THE
LAWS OF THE FORMER SOVEREIGNTY MUST VANISH.  ON THE CONTRARY ITS
LANUAGE HAS LONG BEEN INTERPRETED SO AS TO PERMIT THE CONTINUANCE UNTIL
ABROGATED OF THOSE RULES EXISTING AT THE TIME OF THE SURRENDER OF
SOVEREIGNTY WHICH GOVERN THE RIGHTS OF THE OCCUPANTS OF THE TERRITORY
TRANSFERRED.  THIS ASSURES THAT NO AREA HOWEVER SMALL WILL BE WITHOUT A
DEVELOPED LEGAL SYSTEM FOR PRIVATE RIGHTS."  JAMES STEWART & CO. V.
SADRAKULA, 309 U.S. 94, 99 - 100 (1940).  SEE ALSO PACIFIC COAST DAIRY,
INC. V. DEPT. OF AGRICULTURE, 318 U.S. 285, 294 (1943); MURRAY V. JOE
GERRICK & CO., 291 U.S. 315, 318 (1943); CHICAGO, R. I. & P. R. CO. V.
MCGLINN, 114 U.S. 542, 546 - 547 (1885). 

/13/  THE STATE'S POWER TO REGULATE TRANSPORTATION OF ALCOHOLIC
BEVERAGES THROUGH ITS TERRITORY TO THE BASES OR FROM THE BASES BACK
INTO ITS JURISDICTION IS, HOWEVER, A DIFFERENT QUESTION, SEE INFRA, AT
377 - 378. 

/14/  SEE STIPULATION, APP. 28 - 29, AND EX 1 - 7.  IT IS WELL
ESTABLISHED THAT LAND WHICH THE GOVERNMENT ACQUIRES BY CONDEMNATION HAS
BEEN "PURCHASED" WITHIN THE MEANING OF CLAUSE 17.  SEE PAUL V. UNITED
STATES, 371 U.S., AT 264; HUMBLE PIPE LINE CO. V. WAGGONNER, 376 U.S.
369, 371 - 372 (1964). 

/15/  MISS.  CODE ANN. ^ 4153.  GENERAL CONSENT STATUTES ARE NOT
UNCOMMON, SEE PAUL V. UNITED STATES, SUPRA, AT 265 AND N. 31; JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 134, 143 AND N. 4 (1937), AND THEY ARE
AS EFFECTIVE FOR PURPOSES OF ART. I, ^ 8, CL. 17, AS CONSENT TO EACH
PARTICULAR ACQUISITION, SEE PAUL V. UNITED STATES, SUPRA, AT 268 -
269. 

/16/  SEE MISS.  CODE ANN. ^ 4154.  THE EFFECTIVENESS OF SUCH
QUALIFICATIONS TO CONSENT HAS LONG BEEN ACCEPTED, SEE, E. G., PAUL V.
UNITED STATES, SUPRA, AT 264 - 265; JAMES V. DRAVO CONTRACTING CO.,
UPRA, AT 146 - 149. 

/17/  SECTION 255 PROVIDES IN RELEVANT PART: 

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE OBTAINING OF
EXCLUSIVE JURISDICTION IN THE UNITED STATES OVER LANDS OR INTERESTS
THEREIN WHICH HAVE BEEN OR SHALL HEREAFTER BE ACQUIRED BY IT SHALL NOT
BE REQUIRED; BUT THE HEAD OR OTHER AUTHORIZED OFFICER OF ANY DEPARTMENT
OR INDEPENDENT ESTABLISHMENT OR AGENCY OF THE GOVERNMENT MAY, IN SUCH
CASES AND AT SUCH TIMES AS HE MAY DEEM DESIRABLE, ACCEPT OR SECURE FROM
THE STATE IN WHICH ANY LANDS OR INTERESTS THEREIN UNDER HIS IMMEDIATE
JURISDICTION, CUSTODY, OR CONTROL ARE SITUATED, CONSENT TO OR CESSION
OF SUCH JURISDICTION, EXCLUSIVE OR PARTIAL, NOT THERETOFORE OBTAINED,
OVER ANY SUCH LANDS OR INTERESTS AS HE MAY DEEM DESIRABLE AND INDICATE
ACCEPTANCE OF SUCH JURISDICTION ON BEHALF OF THE UNITED STATES BY
FILING A NOTICE OF SUCH ACCEPTANCE WITH THE GOVERNOR OF SUCH STATE OR
IN SUCH OTHER MANNER AS MAY BE PRESCRIBED BY THE LAWS OF THE STATE
WHERE SUCH LANDS ARE SITUATED.  UNLESS AND UNTIL THE UNITED STATES HAS
ACCEPTED JURISDICTION OVER LANDS HEREAFTER TO BE ACQUIRED AS AFORESAID,
IT SHALL BE CONCLUSIVELY PRESUMED THAT NO SUCH JURISDICTION HAS BEEN
ACCEPTED." 

/18/  SEE STIPULATION, APP. 28 - 29, AND EX. 1 - 7. 

SINCE THE CHALLENGED REGULATION FIRST BECAME EFFECTIVE IN 1966, LONG
AFTER THE UNITED STATES HAD ACQUIRED JURISDICTION OVER THE BASES, THERE
IS NO QUESTION HERE AS TO THE APPLICATION WITHIN A FEDERAL ENCLAVE OF A
STATE LAW THAT PREDATES THE TRANSFER OF SOVEREIGN AUTHORITY, SEE N. 12,
SUPRA. 

/19/  TRANSCRIPT OF RECORD, NO. 870, O. T. 1937, P. 3. 

/20/  IN FACT, THE RECORD IN THIS CASE CONTAINS NO EXPRESS
INDICATION AS TO THE EXTENT TO WHICH PACKAGED LIQUOR PURCHASED FROM THE
NONAPPROPRIATED FUND ACTIVITIES IS CONSUMED OUTSIDE THE JURISDICTION OF
THE TWO BASES.  THE DISTRICT COURT INFERRED OFF-BASE CONSUMPTION FROM
THE FACTS THAT "NUMEROUS CLASSES OF NON MILITARY PERSONS ARE AUTHORIZED
TO MAKE PURCHASES; AND EVERY SELLING FACILITY EXACTS A PROMISE FROM
EACH PURCHASER THAT HE WILL OBEY THE LAWS OF THE STATE AS TO SUCH OF
THE LIQUOR BOUGHT AS MAY BE TAKEN OFF OF THE INSTALLATION."  340 F.
SUPP., AT 905.  BY A PARITY OF REASONING THE LIKELIHOOD THAT SOME OF
THE LIQUOR PURCHASED FROM STORES LOCATED IN YOSEMITE NATIONAL PARK WAS
TRANSPORTED TO AND CONSUMED IN CALIFORNIA IS EVEN GREATER SINCE THOSE
STORES WERE OPEN TO THE PUBLIC AT LARGE. 

/21/  SEE, E. G., M'CULLOCH V. MARYLAND, 4 WHEAT.  316 (1819). 

/22/  SEE 32 CFR ^ 261.4(C).  SEE ALSO PAUL V. UNITED STATES, 371
U.S., AT 253. 

[[DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REHNQUIST CONCURS,
DISSENTING. 

THIS IS AN AMAZING DECISION DOING IRREPARABLE HARM TO THE CAUSE OF
STATES' RIGHTS UNDER THE TWENTY-FIRST AMENDMENT.  THAT AMENDMENT GIVES
THE STATES PERVASIVE CONTROL OVER THE "TRANSPORTATION . . . INTO (THE)
STATE . . . FOR DELIVERY OR USE THEREIN OF INTOXICATING LIQUORS, IN
VIOLATION" OF ITS LAWS.  THE LIQUORS CANNOT REACH THESE FEDERAL
ENCLAVES UNLESS THEY ARE TRANSPORTED INTO OR ACROSS THE STATE AND THEY
ARE OBIOUSLY DELIVERED AND USED WITHIN MISSISSIPPI. 

TWO OF THE POSTS ARE INLAND ENCLAVES WITHIN THE STATE.  TWO ARE ON
MISSISSIPPI'S COASTLINE.  BUT TO REACH THE LATTER BY WATER A VESSEL
MUST ENTER MISSISSIPPI'S TERRITORIAL WATERS.  AS WE HELD IN SKIRIOTES
V. FLORIDA, 313 U.S. 69, THE TERRITORIAL WATERS ARE PART OF THE DOMAIN
OVER WHICH THE COASTAL STATE HAS SOVEREIGNTY.  THESE SHIPMENTS
THEREFORE CONSTITUTE "TRANSPORTATION OR IMPORTATION INTO" MISSISSIPPI
FOR "DELIVERY . . . THEREIN OF INTOXICATING LIQUORS" WITHIN THE MEANING
OF THE TWENTY-FIRST AMENDMENT.  THE POWER OF THE STATE TO BAR THE
TRANSPORTATION OF LIQUOR INTO THE STATE CERTAINLY INCLUDES THE POWER TO
MANAGE ITS DISTRIBUTION WITHIN THE STATE.  MISSISSIPPI HAS DONE NO MORE
THAN THAT.  SO IT SEEMS CLEAR TO ME THAT THIS IS A CLASSIC EXAMPLE OF
THE EXERCISE OF BASIC STATES RIGHTS UNDER THE TWENTY-FIRST AMENDMENT. 

MISSISSIPPI IN HER REGULATION OF ALCOHOLIC BEVERAGES IS A SO-CALLED
MONOPOLY STATE, /1/  LIKE 17 OTHER STATES.  SOME OF THESE MONOPOLY
STATES MAKE THEMSELVES THE EXCLUSIVE WHOLESALER /2/  OF LIQUOR AND WINE
AND EXCLUSIVE RETAILER AS WELL.  MISSISSIPPI ONLY MAKES ITSELF THE
EXCLUSIVE WHOLESALER.  THE SALES INVOLVED IN THIS LITIGATION ARE
WHOLESALE SALES TO CLUBS OF MEMBERS OF THE ARMED SERVICES ON FOUR
FEDERAL BASES IN MISSISSIPPI, OVER TWO OF WHICH MISSISSIPPI AND THE
UNITED STATES HAVE CONCURRENT JURISDICTION, THE UNITED STATES HAVING
EXCLUSIVE JURISDICTION OVER THE OTHER TWO. 

UNDER MISSISSIPPI LAW THESE POST EXCHANGES AND OTHER FACILITIES
(HEREAFTER POST EXCHANGES) MAY ORDER LIQUOR DIRECT FROM THE DISTILLER
OR FROM THE STATE COMMISSION.  THE MISSISSIPPI REGULATION PROVIDES,
"ALL ORDERS OF SUCH ORGANIZATIONS SAHLL BEAR THE USUAL WHOLESALE MARKUP
/3/  IN PRICE BUT SHALL BE EXEMPT FROM ALL STATE TAXES."  THE WHOLESALE
MARKUP ON DISTILLED SPIRITS IS 17% AND ON WINE, 20%.  IF THE PURCHASE
IS MADE FROM THE DISTILLER, IT REMITS THE WHOLESALE MARKUP TO THE
STATE.  A DISTILLER WHO FAILS OR REFUSES TO OBSERVE THESE CONDITIONS IS
DEPRIVED OF THE BENEFITS OF THIS STATE LAW AND MAY BE PROSECUTED. 

THIS SUIT BROUGHT BEFORE A THREE-JUDGE DISTRICT COURT WAS TO COLLECT
THE AMOUNT OF THE MARKUPS PAID BY THE POST EXCHANGES AND TO ENJOIN THE
ENFORCEMENT OF THE MISSISSIPPI REGULATION AGAINST DISTILLERS OR
SUPPLIERS DOING BUSINESS WITH THE POST EXCHANGES ON THE TERMS OF
MISSISSIPPI LAW.  THE THREE-JUDGE DISTRICT COURT, RELYING ON THE TWENTY
FIRST AMENDMENT, /4/  GAVE APPELLEES A SUMMARY JUDGMENT, 340 F. SUPP.
903.  ITS JUDGMENT SHOULD BE AFFIRMED. 

THE FOUR FEDERAL ENCLAVES INVOLVED IN THIS DISPUTE ARE IN THE STATE
OF MISSISSIPPI.  THE SPIRITS ARE MADE OUT OF STATE AND DELIVERED TO THE
POST EXCHANGES WITHIN THE STATE.  THE QUESTION IS WHETHER THE TERMS OF
THE TWENTY-FIRST AMENDMENT ARE MET, THAT IS TO SAY, WHETHER THERE IS
"TRANSPORTATION . . . INTO . . .(THE) STATE . . . FOR DELIVERY OR USE
THEREIN OF INTOXICATING LIQUORS." 

THE SPIRITS ARE NOT ALL CONSUMED ON OR AT THE POST EXCHANGES. 
RATHER, THEY ARE RESOLD TO MEMBERS OF THE ARMED SERVICES, TO RETIRED
MEMBERS AND THE FAMILIES OF MEMBERS; AND SOME OF THE SPIRITS ARE
CONSUMED IN MISSISSIPPI AND OUTSIDE THE FEDERAL ENCLAVES BY GUESTS OF
MEMBERS AND RETIREES AND THEIR FAMILIES.  AS THE DISTRICT COURT SAID,
THE SPRITS ARE NOT BROUGHT INTO THE FEDERAL ENCLAVES FOR SOLE USE
THERE.  THE SPIRITS ARE RESOLD TO INDIVIDUALS FOR THEIR USE OR
CONSUMPTION EITHER ON THE FEDERAL ENCLAVE OR IN THE SURROUNDING STATE
AREA. 

PRIVATE RETAILERS IN MISSISSIPPI PAY THE STATE A TAX OF $2.50 A
GALLON ON DISTILLED SPIRITS.  THE POST EXCHANGES PAY NO STATE TAX ON
THEIR RESALES; AND IT IS STIPULATED THAT THESE POST EXCHANGES EACH MAKE
A PROFIT. 

AMENDED IN 1951, AUTHORIZES THE SECRETARY OF DEFENSE TO MAKE
REGULATIONS "GOVERNING THE SALE, CONSUMPTION, POSSESSION OF OR TRAFFIC
IN . . . INTOXICATING LIQUORS TO OR BY MEMBERS" OF THE ARMED FORCES "AT
OR NEAR ANY CAMP, STATION, POST, OR OTHER PLACE PRIMARILY OCCUPIED BY
(THEM)."  50 U.S.C. APP. ^ 473.  AND IT MAKES CRIMINAL KNOWING
VIOLATIONS OF SUCH REGULATIONS.  DEPARTMENT OF DEFENSE DIRECTIVE
1330.15 ISSUED MAY 4, 1964, AND AMENDED JUNE 9, 1966, PROVIDES THAT
"THE PURCHASE OF ALL ALCOHOLIC BEVERAGES FOR RESALE AT ANY CAMP, POST,
STATION, BASE OR OTHER PLACE PRIMARILY OCCUPIED BY MEMBERS OF THE ARMED
FORCES WITHIN THE UNITED STATES SHALL BE IN SUCH A MANNER AND UNDER
SUCH CONDITIONS AS SHALL OBTAIN FOR THE GOVERNMENT THE MOST
ADVANTAGEOUS CONTRACT, PRICE AND OTHER FACTORS CONSIDERED."  THE ACT
AND THE DEPARTMENT OF DEFENSE REGULATION DO NOT ON THEIR FACE PURPORT
TO OVERRIDE OR DISPLACE STATE PRICE CONTROL OF LIQUOR.  IT IS SAID,
HOWEVER, THAT THAT IS IMMATERIAL.     THE SOLICITOR GENERAL RELIES ON
ART. I, ^ 8, CL. 17, OF THE CONSTITUTION, WHICH EMPOWERS CONGRESS TO
"EXERCISE EXCLUSIVE LEGISLATION . . . OVER ALL PLACES PURCHASED BY THE
CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR
THE ERECTION OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER
NEEDFUL BUILDINGS."  THIS PROVISION, IT IS SAID, BARS STATE PRICE
REGULATIONS AS RESPECTS SALES TO POST EXCHANGES ON THE TWO FEDERAL
ENCLAVES OVER WHICH THE UNITED STATES HAS EXCLUSIVE JURISDICTION EVEN
IN ABSENCE OF A CONFLICTING FEDERAL STATUTE OR REGULATION.  RELIANCE IS
PLACED ON PAUL V. UNITED STATES, 371 U.S. 245, 263 - 268.  THE PAUL
CASE DID NOT INVOLVE THE TWENTY-FIRST AMENDMENT.  THERE POST EXCHANGES
RESOLD MILK AND CALIFORNIA PROVIDED MINIMUM WHOLESALE PRICE
REGULATIONS; AND WE HELD THAT ART. I, ^ 8, CL. 17, "BY ITS OWN WEIGHT,
BARS STATE REGULATION WITHOUT SPECIFIC CONGRESSIONAL ACTION."  ID., AT
263. 

THE TWENTY-FIRST AMENDMENT AND ART. I, ^ 8, CL. 17, ARE PARTS OF THE
SAME CONSTITUTION.  IN HOSTETTER V. IDLEWILD BON VOYAGE LIQUOR CORP.,
377 U.S. 324, WE HELD THAT WHILE THE TWENTY-FIRST AMENDMENT GAVE THE
STATES CONTROL WHERE OTHERWISE THE COMMERCE CLAUSE WOULD BE A BAR TO
ITS ACTION (ID., AT 330), THE TWENTY-FIRST AMENDMENT DID NOT GIVE A
STATE THE POWER TO PROHIBIT THE PASSAGE OF LIQUOR THROUGH ITS TERRITORY
FOR DELIVERY TO CONSUMERS IN FOREIGN COUNTRIES.  CONGRESS HAD ENACTED A
LAW GOVERNING TRAFFIC IN LIQUOR TO FOREIGN NATIONS; AND THAT ASPECT OF
THE COMMERCE CLAUSE GAVE CONGRESS EXCLUSIVE AUTHORITY OVER FOREIGN
TRADE.  HENCE IT IS ARGUED HERE THAT THE POWER OF CONGRESS TO EXERCISE
SECLUSIVE JURISDICTION OVER A FEDERAL ENCLAVE PRE-EMPTS STATE POWER. 
BUT ALL THAT WE HAVE HERE IS "TRANSPORTATON" INTO A STATE NOT BEYOND
IT. 

COLLINS V. YOSEMITE PARK & CURRY CO., 304 U.S. 518, HELD AS RESPECTS
A STATE REGULATORY REGIME OF ALCOHOLIC BEVERAGES WITHIN YOSEMITE
NATIONAL PARK IN CALIFORNIA THAT THE TWENTY-FIRST AMENDMENT GAVE THE
STATE NO POWER TO SUPERVISE LIQUOR TRANSACTIONS WITHIN THE FEDERAL
ENCLAVE.  THE COURT SAID: 

"AS TERRITORIAL JURISDICTION OVER THE PARK WAS IN THE UNITED STATES,
THE STATE COULD NOT LEGISLATE FOR THE AREA MERELY ON ACCOUNT OF THE XXI
AMENDMENT.  THERE WAS NO TRANSPORTATION INTO CALIFORNIA 'FOR DELIVERY
OR USE THEREIN.'  THE DELIVERY AND USE IS IN THE PARK, AND UNDER A
DISTINCT SOVEREIGNTY.  WHERE EXCLUSIVE JURISDICTION IS IN THE UNITED
STATES, WITHOUT POWER IN THE STATE TO REGULATE ALCOHOLIC BEVERAGES, THE
XXI AMENDMENT IS NOT APPLICABLE."  ID., AT 538. 

THAT OBSERVATION WAS APT, FOR CALIFORNIA UNDERTOOK TO ASSERT A
REGULATORY AUTHORITY WITHIN THE PARK.  THE SOLICITOR GENERAL PRESSES
FOR AN APPLICATION OF COLLINS TO THE PRESENT POST EXCHANGES.  YET
MISSISSIPPI ASSERTS NO REGULATORY POWER OVER THESE MILITARY BASES OR
OVER THE DISPENSING OF LIQUOR BY THE POST EXCHANGES.  MISSISSIPPI ONLY
COLLECTS A TAX FROM OUT-OF-STATE DISTILLERS AND SUPPLIERS WHO SHIP
LIQUOR TO THE POST EXCHANGES.  THOSE SHIPMENTS, AS NOTED, MUST ENTER
MISSISSIPPI TO REACH THE MILITARY BASES. 

MOREOVER, MISSISSIPPI ASSERTS NO AUTHORITY TO COLLECT THE TAX FROM
THE FEDERAL GOVERNMENT OR ITS INSTRUMENTALITIES, THE POST EXCHANGES. 
THE LEGAL INCIDENCE OF THE SO-CALLED SALES TAX IS ON THE DISTRIBUTOR
ONLY.  THE ECONOMIC INCIDENCE IS OF COURSE ON THE POST EXCHANGES.  BUT
IT HAS LONG BEEN HELD THAT THERE IS NO CONSTITUTIONAL BARRIER TO THAT
RESULT. 

THAT RAISES THE OTHER PHASE OF THE CASE WHICH SHOULD BE DECIDED
HERE, AS IT IS COVERED BY OUR DECISIONS AND REQUIRES NO ADDITIONAL
FACTFINDINGS FOR ITS RESOLUTION. 

  AT LEAST SINCE ALABAMA V. KING & BOOZER, 314 U.S. 1, STATE TAXES
HAVE BEEN UPHELD ON THOSE DOING BUSINESS WITH THE FEDERAL GOVERNMENT
EVEN AS RESPECTS COST-PLUS CONTRACTS WHERE THE TERMS OF THE CONTRACT
FORCED THEIR PAYMENT OUT OF THE FEDERAL TREASURY.  /5/  THE PRINCIPLE
OF KING & BOOZER PERMITS NO EXCEPTION FOR DISTILLERS WHO MAKE WHOLESALE
TRANSACTIONS WITH POST EXCHANGES, AS THE LEGAL INCIDENCE OF THE TAX IS
ON THE DISTILLERS, NOT ON THE POST EXCHANGES.  MOREOVER, THE BUCK ACT,
54 STAT. 1059, NOW 4 U.S.C. ^ 105 ET SEQ., AUTHORIZES THE APPLICATION
OF STATE SALES AND USE TAXES TO ALL POST EXCHANGE PURCHASES WHERE "THE
SALE OR USE, WITH RESPECT TO WHICH SUCH TAX IS LEVIED, OCCURRED IN
WHOLE OR IN PART WITHIN A FEDERAL AREA."  THE BUCK ACT EXEMPTS FROM
SUCH TAXES, SALES, PURCHASES, STORAGE OR USE OF PERSONAL PROPERTY SOLD
BY THE UNITED STATES OR ANY INSTRUMENTALITY THEREOF TO "ANY AUTHORIZED
PURCHASER" (^ 107), WHO IS DEFINED AS ONE PERMITTED TO PURCHASE AT
COMMISSARIES, SHIP'S STORES, POST EXCHANGES, AND THE LIKE, BY
REGULATIONS OF THE DEPARTMENTAL SECRETARY. 

IT ALSO DOES NOT AUTHORIZE "THE LEVY OR COLLECTION OF ANY TAX ON OR
FROM THE UNITED STATES OR ANY INSTRUMENTALITY THEREOF."  4 U.S.C. ^ 107
(A). 

THE MARKUP WHICH THE STATE REQUIRES WHOLESALERS OF LIQUOR TO MAKE IS
IN ITS WORST LIGHT A SALES TAX.  THERE IS NO "LEVY OR COLLECTION"  BY
THE STATE FROM A POST EXCHANGE IN ANY TECHNICAL, LEGAL SENSE.  AS
NOTED, THE ECONOMIC BUT NOT THE LEGAL INCIDENCE OF THE TAX IS IN THE
POST EXCHANGES.  THE POST EXCHANGE IS MERELY PAYING INDIRECTLY THE COST
OF DOING BUSINESS IN THE MANNER IN WHICH KING & BOOZER HELD THAT THERE
WAS NO CONSTITUIONAL IMMUNITY FROM STATE TAXATION. 

THAT ALONE IS SUFFICIENT TO DISTINGUISH THE PRESENT CASE FROM PAUL
V. UNITED STATES, 371 U.S. 245, WHERE STATE MINIMUM PRICE REGULATIONS
WERE HELD TO BE INOPERATIVE AS APPLIED TO PURCHASES OF MILK BY FEDERAL
INSTRUMENTALITIES, SUCH AS POST EXCHANGES.  PAUL IN OTHER WORDS
INVOLVED NO TAX AT ALL.  THE LEVY OF MISSISSIPPI ON WHOLESALERS IS, AS
NOTED, A SUM DESIGNED TO COVER THE COST TO THE STATE OF OPERATING THE
WHOLESALE LIQUOR BUSINESS, YIELD A REASONABLE PROFIT, AND BE
COMPETITIVE WITH LIQUOR PRICES IN NEIGHBORING STATES.  IT IS PLAINLY,
THEREFORE, A TAX ON SALES AND IN MY VIEW AUTHORIZED BY CONGRESS UNDER
THE BUCK ACT.  THE SOLICITOR GENERAL CONCEDES IN HIS BRIEF THAT THE
MISSISSIPPI REGULATION IS MEANT ONLY "TO RAISE REVENUE."  BY REASON OF
THE BUCK ACT IT MATTERS NOT, THEREFORE, THAT THE POST EXCHANGES, AS
HELD IN PAUL, ARE FEDERAL INSTRUMENTALITIES.  HERE, AS IN KING &
BOOZER, WE DEAL ONLY WITH THE "ECONOMIC" BURDEN OF THE LOCAL TAX, ITS
LEGAL INCIDENCE BEING SOLELY ON THE DISTRIBUTOR. 

FIRST AGRICULTURAL NATIONAL BANK V. STATE TAX COMM'N, 392 U.S. 339,
IS INAPPOSITE.  IN THAT CASE CONGRESS HAD SPECIFICALLY PROVIDED FOUR
WAYS IN WHICH THE STATES COULD TAX NATIONAL BANKS, APART FROM TAXES ON
THEIR REAL ESTATE.  ID., AT 341 - 342.  EFFORTS TO ALLOW BROADER
TAXATION WERE DEFEATED IN CONGRESS.  BECAUSE OF THAT HISTORY, WE READ
THE MASSACHUSETTS SALES TAX CLOSELY AND NOTING THAT THE TAX WAS
"'RECOVERABLE AT LAW'" FROM THE NATIONAL BANK, ID., AT 347, HELD THAT
IT TRANSCENDED THE CONGRESSIONAL WAIVER OF IMMUNITY. 

THAT CASE DOES NOT CONTROL HERE FOR TWO REASONS. 

FIRST, THE LEGAL INCIDENCE OF THE PRESENT TAX IS NOT IN THE POST
EXCHANGES, ONLY THE ECONOMIC INCIDENCE. 

SECOND, THE MASSACHUSETTS SALES TAX HAD NO RELATION TO THE TWENTY
FIRST AMENDMENT.  THE PRESENT CASE INVOLVES "TRANSPORTATION OR
IMPORTATION" OF LIQUOR INTO THE STATE OF MISSISSIPPI OVER WHICH THE
POWER TO BAR LIQUOR COMPLETELY FROM MISSISSIPPI, CAN ADMIT IT ON SUCH
TERMS AND CONDITIONS AS SHE CHOOSES.  IF SHE SOUGHT TO LEVY A TAX ON
THE POST EXCHANGES A DIFFERENT ISSUE WOULD ARISE.  BUT THERE IS NO
FEDERAL IMMUNITY AGAINST INCLUDING STATE COSTS IN FEDERAL CONTRACTS. 

WHILE THE BUCK ACT BY ^ 107(A) BARS A STATE TAX ON FEDERAL
INSTRUMENTALITIES -- WHICH AS PAUL HOLDS INCLUDES POST EXCHANGES --
KING & BOOZER ALLOWS A STATE TAX ON THOSE WHO, LIKE THE WHOLESALERS IN
THIS CASE, DO BUSINESS WITH THE UNITED STATES.  KING & BOOZER, DECIDED
IN 1941, AFTER THE BUCK ACT, STATED THE MODERN VERSION OF THE SCOPE OF
INTERGOVERNMENTAL IMMUNITY.  /6/ THE PRESENT CASE IS THEREFORE ON ALL
FOURS WITH THE EXCISE TAX IMPOSED BY FLORIDA ON MILK DISTRIBUTORS WHO
IN TURN SOLD TO FEDERAL ENCLAVES.  IN REFERRING TO THE BUCK ACT WE
SAID: 

"WE THINK THIS PROVISION PROVIDES AMPLE BASIS FOR FLORIDA TO LEVY A
TAX MEASURED BY THE AMOUNT OF MILK POLAR DISTRIBUTES MONTHLY, INCLUDING
MILK SOLD TO THE UNITED STATES FOR USE ON FEDERAL ENCLAVES IN
FLORIDA."  POLAR ICE CREAM & CREAMERY CO. V. ANDREWS, 375 U.S. 361,
383. 

THE JUDGMENT BELOW SHOULD BE AFFIRMED. 

[[DFN 

/1/  MISS.  CODE ANN. ^ 10265 - 01 ET SEQ. (SUPP. 1972). 

/2/  WHOLESALER IS DEFINED AS "ANY PERSON, OTHER THAN A
MANUFACTURER, ENGAGED IN DISTRIBUTING OR SELLING ANY ALCOHOLIC BEVERAGE
AT WHOLESALE FOR DELIVERY WITHIN OR WITHOUT THIS STATE WHEN SUCH SALE
IS FOR THE PURPOSE OF RESALE BY THE PURCHASER."  ID., ^ 10265 - 05(G). 

/3/  THE ACT PROVIDES IN ^ 10265 - 106, "THE COMMISSION SHALL ADD TO
THE COST OF ALL ALCOHOLIC BEVERAGES SUCH VARIOUS MARKUPS AS IN ITS
DISCRETION WILL BE ADEQUATE TO COVER THE COST OF OPERATION OF THE STATE
WHOLESALE LIQUOR BUSINESS, YIELD A REASONABLE PROFIT, AND BE
COMPETITIVE WITH LIQUOR PRICES IN NEIGHBORING STATES." 

/4/  IT PROVIDES IN ^ 2, "THE TRANSPORTATION OR IMPORTATION INTO ANY
STATE, TERRITORY, OR POSSESSION OF THE UNITED STATES FOR DELIVERY OR
USE THEREIN OF INTOXICATING LIQUORS, IN VIOLATION OF THE LAW THEREOF,
IS HEREBY PROHIBITED." 

/5/  IN NEW YORK V. UNITED STATES, 326 U.S. 572, IN DISCUSSING THE
FEDERAL GOVERNMENT'S RIGHT TO LEVY TAXES ON NEW YORK STATE'S SALE OF
MINERAL WATERS, THE COURT STATED, "IN THE OLDER CASES, THE EMPHASIS WAS
ON IMMUNITY FROM TAXATION.  THE WHOLE TENDENCY OF RECENT CASES REVEALS
A SHIFT IN EMPHASIS TO THAT OF LIMITATION UPON IMMUNITY.  THEY ALSO
INDICATE AN AWARENESS OF THE LIMITED ROLE OF COURTS IN ASSESSING THE
RELATIVE WEIGHT OF THE FACTORS UPON WHICH IMMUNITY IS BASED."  ID., AT
581. 

THAT TREND CONTINUED IN ESSO STANDARD OIL CO., V. EVANS, 345 U.S.
495, WHERE THE COURT UPHELD THE VALIDITY OF A STATE PRIVILEGE TAX ON
ESSO, OCCASIONED BY ITS STORAGE OF GASOLINE OWNED BY THE UNITED STATES,
EVEN THOUGH IT WAS SHOWN THAT THE UNITED STATES HAS CONTRACTUALLY
OBLIGATED ITSELF TO REIMBURSE THE CONTRACTOR FOR ANY STATE TAX
LIABILITY INCURRED.  THE COURT DISTINGUISHED THOSE CASES WHICH HAD HELD
THAT THERE COULD BE NO STATE TAX ON FEDERALLY OWNED PROPERTY BY
INDICATING THAT IN ESSO THE TAX WAS ON THE PRIVILEGE OF STORING
GOVERNMENT PROPERTY. 

UNITED STATES V. CITY OF DETROIT, 355 U. S. 466, AND UNITED STATES
V. MUSKEGON, 355 U.S. 484, CONCERNED THE APPLICATION OF A 1953 MICHIGAN
STATUTE PROVIDING THAT WHEN TAX-EXEMPT REAL PROPERTY IS USED BY A
PRIVATE PERSON IN A BUSINESS CONDUCTED FOR PROFIT THE PRIVATE PERSON IS
SUBJECT TO TAXATION TO THE SAME EXTENT AS IF HE WERE THE OWNER OF THE
PROPERTY.  BOTH CASES INVOLVED GOVERNMENT CONTRACTORS OCCUPYING DEFENSE
PLANTS, ONE UNDER A LEASE AND THE OTHER UNDER A PERMIT WHICH COULD BE
TERMINATED AT WILL.  THE COURT UPHELD THE IMPOSITION OF THE TAX, SAYING
THE CONSTITUTIONAL IMMUNITY OF THE FEDERAL GOVERNMENT FROM STATE
TAXATION WAS NOT VIOLATED AND THAT THE STATE STATUTE WAS NOT
DISCRIMINATORY NOR WAS THE STATUTE DISCRIMINATORILY ADMINISTERED.  THIS
RESULT WAS REACHED NOTWITHSTANDING THE FACT THAT THE FEDERAL GOVERNMENT
HAD FOR YEARS REIMBURSED ITS CONTRACTORS FOR THE COSTS OF POSSESSORY
INTEREST TAXES. 

IN CITY OF DETROIT V. MURRAY CORP., 355 U.S. 489, THE COURT UPHELD A
TAX IMPOSED ON MURRAY, AN AIR FORCE SUBCONTRACTOR, ON THE BASIS OF WORK
IN PROCESS AND INVENTORY, TITLE TO WHICH WAS IN THE FEDERAL GOVERNMENT
ON THE TAX DAY.  THE COURT FOUND NO CONSTITUTIONAL IMPEDIMENT TO
PERMITTING A POSSESSORY-INTEREST TAX ON GOVERNMENT-OWNED PERSONAL
PROPERTY.  UNLIKE THE REAL PROPERTY SITUATION, THE MICHIGAN STATUTE DID
NOT SPECIFICALLY AUTHORIZE SUCH TAX, BUT IT WAS IMPOSED PURSUANT TO THE
USUAL PERSONAL PROPERTY TAX STATUTE, LEVYING THE TAX ON THE PROPERTY. 
IN COMMENTING ON THE DISPARITY BETWEEN THE STATUTES, THE COURT STATED,
" IT IS TRUE THAT THE PARTICULAR MICHIGAN TAXING STATUTES INVOLVED HERE
DO NOT EXPRESSLY STATE THAT THE PERSON IN POSSESSION IS TAXED 'FOR THE
PRIVILEGE OF USING OR POSSESSING' PERSONAL PROPERTY, BUT TO STRIKE DOWN
A TAX ON THE POSSESSOR BECAUSE OF SUCH A VERBAL OMISSION WOULD ONLY
PROVE A VICTORY FOR EMPTY FORMALISMS.  AND EMPTY FORMALISMS ARE TOO
SHADOWY A BASIS FOR INVALIDATING STATE TAX LAWS.  . .  IN THE
CIRCUMSTANCES OF THIS CASE THE STATE COULD OBVIATE SUCH GROUNDS FOR
INVALIDITY BY MERELY ADDING A FEW WORDS TO ITS STATUTES."  ID., AT
493. 

/6/  DURING THE FIRST THIRD OF THIS CENTURY THE DOCTRINE OF
INTERGOVERNMENTAL IMMUNITY, AS IT APPLIES TO STATE TAXATION OF
ALLEGEDLY FEDERAL GOVERNMENTAL ACTIVITIES, WENT THROUGH A HIGHLY
EXPANSIVE PHASE.  AMONG THE TAXES HELD INVALID WERE THE FOLLOWING:
SALES TAX ON ARTICLES SOLD TO THE GOVERNMENT, PANHANDLE OIL CO. V.
MISSISSIPPI, 277 U.S. 218; INCOME TAX ON EARNINGS FROM PATENTS AND
COPYRIGHTS, LONG V. ROCKWOOD, 277 U.S. 142; INCOME TAX ON INCOME
DERIVED BY LESSEES OF PUBLIC LANDS, GILLESPIE V. OKLAHOMA, 257 U.S.
501. 

AT THE SAME TIME, HOWEVER, A NUMBER OF INROADS OR QUALIFICATIONS ON
THE DOCTRINE WERE ESTABLISHED.  AMONG THE TAXES HELD VALID WERE THE
FOLLOWING:  CORPORATE FRANCHISE TAX MEASURED BY INCOME INCLUDING THAT
FROM GOVERNMENT BONDS, FLINT V. STONE TRACY CO., 220 U.S. 107;
INHERITANCE OR ESTATE TAX MEASURED IN PART BY GOVERNMENT BONDS, PLUMMER
V. COLER, 178 U.S. 115; INCOME TAX ON CAPITAL GAIN ON RESALE OF
GOVERNMENT BONDS, WILLCUTS V. BUNN, 282 U.S. 216; INCOME TAX ON NET
INCOME OF CONTRACTORS WITH THE GOVERNMENT, METCALF & EDDY V. MITCHELL,
269 U.S. 514.  THIS TREND CULMINATED IN THE DECISION OF THE COURT IN
ALABAMA V. KING & BOOZER, 314 U.S. 1.     THAT TREND LED A COMMENTATOR
TO NOTE, "TODAY, THE UNITED STATES CONDUCTS MUCH OF ITS BUSINESS
THROUGH A VAST NUMBER OF PRIVATE PARTIES.  THE TREND IN THE U. S.
SUPREME COURT HAS BEEN TO REJECT IMMUNIZING THESE PRIVATE PARTIES FROM
NON-DISCRIMINATORY STATE TAXES, AS A MATTER OF CONSTITUTIONAL LAW, EVEN
THOUGH THE UNITED STATES BEARS THE ECONOMIC BRUNT OF THE TAX,
INDIRECTLY IN SOME INSTANCES, BY INCLUSION IN PRICE, AND MORE DIRECTLY
IN MANY INSTANCES, BY REIMBURSEMENT TO THE CONTRACTOR AS AN ITEM OF
COST."  ROLLMAN, RECENT DEVELOPMENTS IN SOVEREIGN IMMUNITY OF THE
FEDERAL GOVERNMENT FROM STATE AND LOCAL TAXES, 38 N.D.L. REV. 26, 30. 

JEWELL S. LAFONTANT ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WOOD,
MARK L. EVANS, ROBERT E. KOPP, AND ANTHONY J. STEINMEYER. 

ROBERT L. WRIGHT ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS GUY N. ROGERS, ASSISTANT ATTORNEY GENERAL OF MISSISSIPPI. 
..END :




UNITED STATES V. MASON, ADMINISTRATOR, ET AL, 412 U.S. 391 


       CERTIORARI TO THE UNITED STATES COURT OF CLAIMS 

     NO. 72 - 654.  ARGUED APRIL 18, 1973 -- DECIDED JUNE 4, 1973;

  TOGETHER WITH NO. 72 - 606, OKLAHOMA V. MASON, ADMINISTRATOR, ET

  AL., ALSO ON CERTIORARI TO THE SAME COURT.  198 CT. CL. 599, 461

  F.2D 1364, REVERSED. 


    THE UNITED STATES DID NOT BREACH ITS FIDUCIARY DUTY AS TRUSTEE

  OF INDIAN PROPERTY BY PAYING THE OKLAHOMA INHERITANCE TAX

  ASSESSED AGAINST THE ESTATE OF DECEDENT, A RESTRICTED OSAGE

  INDIAN, IN RELIANCE ON WEST V. OKLAHOMA TAX COMM'N 334 U.S. 717,

  WHICH HAD UPHELD THE VALIDITY OF THAT TAX AS APPLIED TO THE SAME

  KIND OF ESTATE.  PP. 394 - 400. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, AND REHNQUIST,
JJ., JOINED.  DOUGLAS, J., CONCURRED IN THE RESULT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

[[HC391'(ORIGINAL DOCUMENT PAGE 391)' 

THE ISSUE IN THESE CASES IS WHETHER A TRUSTEE IN THE COURSE OF
ADMINISTERING ITS FIDUCIARY OBLIGATIONS IS ENTITLED TO RELY ON A
DIRECTLY RELEVANT DECISION OF THIS COURT WHICH HAS NEITHER BEEN
OVERRULED NOR QUESTIONED. 

[[HC392'(ORIGINAL DOCUMENT PAGE 392)'  THE COURT OF CLAIMS RULED
THAT THE UNITED STATES BREACHED ITS FIDUCIARY DUTY BY FAILING TO RESIST
PAYMENT OF OKLAHOMA'S ESTATE TAX ON CERTAIN TRUST PROPERTY HELD BY THE
UNITED STATES ACTING AS TRUSTEE FOR THE BENEFIT OF THE OSAGE INDIANS. 
THE COURT OF CLAIMS RECOGNIZED THAT THIS COURT, IN WEST V. OKLAHOMA TAX
COMM'N, 334 U.S. 717 (1948), HAD SQUARELY UPHELD THE VALIDITY OF
OKLAHOMA'S INHERITANCE TAX AS APPLIED TO RESTRICTED OSAGE INDIANS.  BUT
THE LOWER COURT BELIEVED THAT WEST HAD BEEN SO UNDERMINED BY LATER
DECISIONS OF THIS AND OTHER COURTS THAT THE UNITED STATES HAD AN
OBLIGATION TO CHALLENGE ITS CONTINUING VALIDITY.  SINCE THE COURT ALSO
BELIEVED THAT SUCH A CHALLENGE WOULD HAVE BEEN SUCCESSFUL, IT UPHELD
BOTH THE PLAINTIFFS'  CLAIM AGAINST THE UNITED STATES FOR THE AMOUNT OF
THE TAX AND THE UNITED STATES' THIRD-PARTY CLAIM AGAINST OKLAHOMA FOR
INDEMNIFICATION.  WE REVERSE.  WE HOLD THAT THE UNITED STATES WAS
ENTITLED TO RELY ON WEST IN PAYING THE TAX AND THUS DID NOT BREACH ITS
FIDUCIARY OBLIGATIONS.  IT FOLLOWS THAT THE PLAINTIFFS BELOW SUFFERED
NO COMPENSABLE DAMAGES AND THAT THE CLAIM OVER BY THE UNITED STATES
DROPS OUT OF THE CASE. 

        I 

THE FACTS AND LEGAL BACKGROUND OF THIS DISPUTE MAY BE BRIEFLY
STATED.  BEFORE 1906, THE OSAGE RESERVATION WAS HELD IN TRUST FOR THE
OSAGE TRIBE BY THE UNITED STATES.  /1/  IN THAT YEAR, THE OSAGE
ALLOTMENT ACT, 34 STAT. 539, WAS PASSED, WHICH DIVIDED TRIBAL LAND
EQUALLY AMONG MEMBERS OF THE TRIBE. 

[[HC393'(ORIGINAL DOCUMENT PAGE 393)'  HOWEVER, AN INDIVIDUAL INDIAN
WAS NOT PERMITTED TO ALIENATE THE LAND UNLESS "THE SECRETARY OF THE
INTERIOR, IN HIS DISCRETION . . . (ISSUED) . . . A CERTIFICATE OF
COMPETENCY, AUTHORIZING HIM TO SELL AND CONVEY ANY OF THE LANDS DEEDED
HIM BY REASON OF THIS ACT."  /2/  34 STAT. 542.  /3/  IN ADDITION, THE
ACT CREATED SO-CALLED "HEADRIGHTS" WHICH ARE EACH TRIBAL MEMBER'S
INDIVIDUAL SHARE OF THE INCOME DERIVED FROM THE MINERALS LOCATED ON THE
LAND.  THE MINERALS AND THIS INCOME WERE TO BE PLACED IN TRUST FOR THE
INDIVIDUAL TRIBAL MEMBERS, SUBJECT TO PERIODIC DISTRIBUTION FROM
INCOME, UNTIL 1984, WHEN LEGAL TITLE TO THE MINERALS TOGETHER WITH THE
ACCUMULATED INCOME WOULD VEST IN THE INDIVIDUAL INDIANS.  /4/  VARIOUS
TRIBAL FUNDS WERE ALSO PLACED IN TRUST UNTIL THAT YEAR.  AS AMENDED,
THE ACT PROVIDES THAT LAND AND FUNDS WHICH ARE EITHER RESTRICTED OR
HELD IN TRUST "SHALL NOT BE SUBJECT TO LIEN, LEVY, ATTACHMENT, OR
FORCED SALE . . . PRIOR TO THE ISSUANCE OF A CERTIFICATE OF
COMPETENCY."  61 STAT. 747. 

THE DECEDENT IN THIS CASE, ROSE MASON, WAS AN OSAGE INDIAN WHO HAD
NOT RECEIVED A CERTIFICATE OF COMPETENCY.  PURSUANT TO THE OSAGE
ALLOTMENT ACT, THE UNITED STATES HELD CERTAIN OF HER PROPERTY IN TRUST
FOR HER.  UPON HER DEATH INTESTATE, AN OKLAHOMA ESTATE TAX RETURN WAS
FILED WHICH INCLUDED IN HER GROSS ESTATE THESE TRUST PROPERTIES. 

[[HC394'(ORIGINAL DOCUMENT PAGE 394)'  THE FEDERAL GOVERNMENT THEN
PAID OKLAHOMA SOME $8,087.10 IN ESTATE TAXES OUT OF THE TRUST
PROPERTIES.  ALTHOUGH THE DECEDENT'S ADMINISTRATORS WERE DISCHARGED IN
1968, IN 1970 THE ESTATE WAS REOPENED FOR THE PURPOSE OF PERMITTING THE
ADMINISTRATORS TO CHALLENGE THE UNITED STATES'  PAYMENT OF THE TAX.  A
SUIT WAS FILED IN THE COURT OF CLAIMS ALLEGING THAT THE UNITED STATES
HAD BREACHED ITS FIDUCIARY DUTY IN MAKING THE PAYMENT, /5/  AND THAT
COURT UPHELD THE CLAIM TOGETHER WITH THE UNITED STATES' THIRD-PARTY
CLAIM AGAINST OKLAHOMA.  SEE 198 CT. CL. 599, 461 F.2D 1364 (1972).  WE
GRANTED CERTIORARI BECAUSE OF THE SEEMING INCONSISTENCY BETWEEN THE
DECISION BELOW AND OUR PRIOR DECISION IN WEST V. OKLAHOMA TAX COMM'N,
SUPRA.  /6/  409 U.S. 1124. 

        II 

IN OKLAHOMA TAX COMM'N V. UNITED STATES, 319 U.S. 598 (1943), THIS
COURT RULED THAT IT COULD NOT INFER A TAX IMMUNITY EXTENDING TO ESTATE
TAXES ON OSAGE PROPERTY FROM THE FACT THAT CONGRESS HAD PLACED
RESTRICTIONS ON THE ALIENABILITY OF THE PROPERTY.  THE WEST COURT
EXTENDED THAT RULING TO PROPERTY, SUCH AS THAT INVOLVED IN THIS CASE,
HELD IN TRUST FOR THE OSAGE INDIANS.  THE COURT HELD THAT BY PLACING
THE PROPERTY IN TRUST, CONGRESS DID NOT INTEND TO IMMUNIZE IT FROM
LOCAL TAXATION. 

[[HC395'(ORIGINAL DOCUMENT PAGE 395)' MOREOVER, THE FEDERAL
INSTRUMENTALITY DOCTRINE WAS FOUND TO BE NO BAR TO OKLAHOMA'S ESTATE
TAX.  ALTHOUGH THIS DOCTRINE HAD BEEN USED IN EARLIER CASES TO
INVALIDATE STATE PROPERTY TAXES ON TRUST PROPERTY, SEE, E. G., MCCURDY
V. UNITED STATES, 264 U.S. 484 (1924); UNITED STATES V. RICKERT, 188
U.S. 432 (1903), THE COURT DISTINGUISHED ESTATE TAXES SINCE "(AN
INHERITANCE OR ESTATE TAX IS NOT LEVIED ON THE PROPERTY OF WHICH AN
ESTATE IS COMPOSED.  RATHER IT IS IMPOSED UPON THE SHIFTING OF ECONOMIC
BENEFITS AND THE PRIVILEGE OF TRANSMITTING OR RECEIVING SUCH
BENEFITS."  334 U.S., AT 727.  DISCERNING NO CONGRESSIONAL INTENT TO
IMMUNIZE OSAGE TRUST PROPERTY FROM STATE TAXATION AND NO CONSTITUTIONAL
BAR TO THE TAX THE COURT UPHELD OKLAHOMA'S CLAIM. 

AS THE COURT OF CLAIMS ITSELF RECOGNIZED, THE WEST DECISION "APPLIED
TO THE VERY TYPE OF TRUST PROPERTY NOW BEFORE US."  198 CT. CL., AT
609, 461 F.2D, AT 1370.  NONETHELESS, THE COURT THOUGHT THAT THE
RATIONALE OF WEST HAD BEEN SUBSTANTIALLY UNDERMINED BY SQUIRE V.
CAPOEMAN, 351 U.S. 1 (1956), WHICH HELD THAT THE PROFITS FROM THE SALE
OF TIMBER ON THE LAND OF A QUINAIELT INDIAN HELD IN TRUST FOR HIM
PURSUANT TO THE GENERAL ALLOTMENT ACT, 25 U.S.C. ^ 331, WAS IMMUNE FROM
FEDERAL CAPITAL GAINS TAXES. 

IT MUST BE NOTED, HOWEVER, THAT THE SQUIRE COURT DID NOT PURPORT TO
QUESTION OR OVERRULE WEST, AND, INDEED, DID NOT SO MUCH AS MENTION THAT
DECISION.  THE SQUIRE CASE INVOLVED A DIFFERENT TAX BY A DIFFERENT
LEVEL OF GOVERNMENT ON THE TRUST PROPERTIES OF A DIFFERENT TRIBE HELD
PURSUANT TO A DIFFERENT STATUTE.  AS THE WEST DECISION ITSELF MADE
CLEAR, DECISIONS RELATING TO OTHER TYPES OF TAXES ARE NOT READILY
TRANSFERABLE TO THE AREA OF ESTATE AND GIFT TAXATION WHERE THE TAX IS
IMPOSED ON THE TRANSFER OF PROPERTY RATHER THAN ON THE PROPERTY ITSELF
OR THE INCOME IT GENERATES. 

[[HC396'(ORIGINAL DOCUMENT PAGE 396)'  CF. PLUMMER V. COLER, 178
U.S. 115 (1900).  MOREOVER, THE SQUIRE DECISION RESTED HEAVILY ON THE
PROVISION IN THE GENERAL ALLOTMENT ACT PROVIDING FOR THE REMOVAL OF
"ALL RESTRICTIONS AS TO SALE, ENCUMBRANCE, OR TAXATION" WHEN INDIAN
PROPERTY IS GRANTED IN FEE -- A PROVISION WHICH HAS NO ANALOGUE IN THE
OSAGE ALLOTMENT ACT INSOFAR AS THESE TRUST PROPERTIES ARE CONCERNED. 
/7/ 

NOR CAN WE AGREE WITH THE COURT OF CLAIMS THAT THE FOUNDATIONS OF
WEST HAVE BEEN SUBSTANTIALLY WEAKENED BY SUBSEQUENT LOWER COURT
DECISIONS.  APART FROM OUR DIFFICULTY IN COMPREHENDING HOW DECISIONS BY
LOWER COURTS CAN EVER UNDERMINE THE AUTHORITY OF A DECISION OF THIS
COURT, WE THINK IT CLEAR THAT EACH OF THE CASES RELIED UPON BELOW IS
DISTINGUISHABLE FROM WEST.  THUS, WHILE IT IS TRUE THAT THE NINTH
CIRCUIT CONSTRUED THE MISSION INDIAN ACT, 26 STAT. 712, TO INVALIDATE
CALIFORNIA'S ESTATE TAX AS APPLIED TO A CALIFORNIA MISSION INDIAN IN
KIRKWOOD V. ARENAS, 243 F.2D 863 (CA9 1957), THE KIRKWOOD COURT
CAREFULLY DISTINGUISHED WEST AND RECOGNIZED ITS CONTINUING VALIDITY. 
SEE ID., AT 865.  SIMILARLY, THE COURT OF CLAIMS' RELIANCE ON ITS OWN
DECISION IN BIG EAGLE V. UNITED STATES, 156 CT. CL. 665, 300 F.2D 765
(1962), IS MISPLACED SINCE THAT DECISION, LIKE SQUIRE, CONCERNED A
FEDERAL INCOME TAX. 

[[HC397'(ORIGINAL DOCUMENT PAGE 397)'  SEE ALSO UNITED STATES V.
HALLAM, 304 F.2D 620 (CA10 1962).  AND CASES SUCH AS NASH V. WISEMAN,
227 F. SUPP. 552 (WD OKLA. 1963), AND ASENAP V. UNITED STATES, 283 F.
SUPP. 566 (WD OKLA. 1968), ARE OF QUESTIONABLE RELEVANCE, SINCE THEY
AROSE UNDER THE GENERAL ALLOTMENT ACT RATHER THAN THE OSAGE ALLOTMENT
ACT.  CF. REV. RUL. 69 - 164, 1969 - I CUM. BULL.  220.  /8/ 

THUS, AS THE COURT OF CLAIMS ITSELF CONCEDED, "SINCE THE WEST CASE IN
1948, THERE HAS BEEN NO HOLDING EXACTLY ON THE PRECISE ISSUE NOW BEFORE
US -- THE LIABILITY OF SUCH OSAGE PROPERTY TO STATE DEATH TAXATION." 
198 CT. CL., AT 613, 461 F.2D, AT 1372.  ALTHOUGH IT MIGHT BE FAIR TO
SAY THAT OVER THE YEARS THE FRINGES OF THE WEST DOCTRINE HAVE BEEN WORN
AWAY, ITS CORE HOLDING REMAINS UNIMPEACHED BY ANY DECISIONS OF THIS OR
ANY OTHER COURT. 

WE NEED NOT DECIDE, HOWEVER, WHETHER IN A CASE SQUARELY PRESENTING
THE ISSUE, WE WOULD CONTINUE TO ADHERE TO WEST.  FOR THE ISSUE IN THIS
CASE IS NOT WHETHER WEST SHOULD BE OVERRULED, BUT RATHER WHETHER THE
UNITED STATES BREACHED ITS FIDUCIARY DUTY IN FAILING TO ANTICIPATE THAT
IT WOULD BE OVERRULED.  CF. HELVERING V. GRIFFITHS, 318 U.S. 371, 394
(1943).  /9/ 

WHEN THE QUESTION IS SO POSED, WE THINK THAT THE ANSWER IS OBVIOUS. 

[[HC398'(ORIGINAL DOCUMENT PAGE 398)'  THERE IS NO DOUBT THAT THE
UNITED STATES SERVES IN A FIDUCIARY CAPACITY WITH RESPECT TO THESE
INDIANS AND THAT, AS SUCH, IT IS DUTY BOUND TO EXERCISE GREAT CARE IN
ADMINISTERING ITS TRUST.  SEE, E. G., SEMINOLE NATION V. UNITED STATES,
316 U.S. 286, 296 - 297 (1942).  BUT IT HAS LONG BEEN RECOGNIZED THAT A
TRUSTEE IS NOT AN INSURER OF TRUST PROPERTY.  AS PROFESSOR SCOTT HAS
WRITTEN, "A TRUSTEE IS UNDER A DUTY IN ADMINISTERING THE TRUST TO
EXERCISE SUCH CARE AND SKILL AS A MAN OF ORDINARY PRUDENCE WOULD
EXERCISE IN DEALING WITH HIS OWN PROPERTY."  2 A. SCOTT, TRUSTS 1408
(3D ED. 1967) (HEREINAFTER CITED AS SCOTT).  SEE, E. G., PHELPS V.
HARRIS, 101 U. S. 370, 383 (1880).  IF FOLLOWS THAT "(IF THE TRUST
PROPERTY IS LOST OR DESTROYED OR DIMINISHED IN VALUE, THE TRUSTEE IS
NOT SUBJECT TO A SURCHARGE UNLESS HE FAILED TO EXERCISE THE REQUIRED
CARE AND SKILL."  2 SCOTT 1419. 

APPLYING THESE FAMILIAR PRINCIPLES TO THE FACTS BEFORE US, WE ARE
REQUIRED TO DECIDE WHETHER THE UNITED STATES CAN BE SAID TO HAVE ACTED
WITH LESS THAN THE REQUISITE CARE IN REFUSING TO CONTEST THE OKLAHOMA
TAX.  WHEN THE STATE ASSERTS A DOUBTFUL TAX CLAIM AGAINST TRUST
PROPERTY, THE TRUSTEE IS OFTEN PRESENTED WITH A CLOSE QUESTION. 
NORMALLY, THE TRUSTEE IS OBLIGATED TO PAY TAXES ON THE TRUST ESTATE,
AND, INDEED, IF HE NEGLIGENTLY FAILS TO DO SO, HE MAY BE HELD LIABLE
FOR ANY RESULTING PENALTY.  SEE, E. G., 2 SCOTT 1422.  YET, AS THESE
CASES DEMONSTRATE, IF HE PAYS THE TAX, HE MAY SIMILARLY BE CALLED UPON
TO REIMBURSE THE TRUST ESTATE FOR THE AMOUNT OF THE TAX. 

IN ORDER TO AVOID PLACING A TRUSTEE ON THE HORNS OF THIS DILEMMA,
MOST COURTS WHICH HAVE CONSIDERED THE PROBLEM HAVE GIVEN A TRUSTEE
BROAD DISCRETION TO PAY TAXES CLAIMED BY THE STATE SO LONG AS THE
TRUSTEE'S JUDGMENT THAT THE TAXES ARE VALID OR THAT THE COSTS AND RISKS
OF LITIGATION OUTWEIGH THE ADVANTAGES IS NOT WHOLLY UNREASONABLE. 

[[HC399'(ORIGINAL DOCUMENT PAGE 399)'  SEE, E. G., CRUTCHER V.
JOYCE, 146 F.2D 518, 519 (CA10 1945); IN RE ESTATE OF MILLER, 259 CAL.
APP. 2D 536, 550, 551, 66 CAL. RPTR.  756, 766 (1968); IN RE ESTATE OF
WEHRHANE, 41 N. J. SUPER.  158, 166, 124 A. 2D 334, 338 (1956); HENSHIE
V. MCPHERSON & CITIZENS STATE BANK, 177 KAN. 458, 479, 280 P. 2D 937,
953 (1955); IN RE VANDERBILT'S WILL, 190 MISC. 824, 850, 77 N. Y. S. 2D
403, 427 (1948); SELLECK V. HAWLEY, 331 MO. 1038, 1056 - 1057, 56 S.W.
2D 387, 395 - 396 (1932). 

THUS, EVEN IF THE WEST CASE HAD NEVER BEEN DECIDED, THE PLAINTIFFS
BELOW WOULD STILL HAVE HAD DIFFICULTY IN MAKING OUT A CASE THAT THE
UNITED STATES HAD BREACHED ITS FIDUCIARY DUTY BY PAYING THE TAX.  BUT,
OF COURSE, WEST HAD BEEN DECIDED AT THE TIME THE TAX WAS PAID, AND WE
THEREFORE DEAL HERE WITH AN ASSERTION OF TAXING AUTHORITY WHICH WAS NOT
MERELY PLAUSIBLE BUT HAD BEEN EXPRESSLY APPROVED BY A DECISION OF THIS
COURT.  GENERALLY, WHEN A TRUSTEE IS IN DOUBT AS TO WHAT COURSE TO
PURSUE, THE PROPER PROCEDURE FOR HIM TO FOLLOW IS TO CONFORM HIS
CONDUCT TO THE INSTRUCTIONS GIVEN HIM BY THE COURTS.  SEE, E. G.,
MOSSER V. DARROW, 341 U.S. 267, 274 (1951).  HERE, THE UNITED STATES
DID JUST THAT, AND PLAINTIFFS BELOW ASK US TO FIND THAT OBEDIENCE TO
THE INSTRUCTIONS OF THIS COURT CONSTITUTES A BREACH OF FIDUCIARY DUTY. 

IT IS OF COURSE, TRUE THAT SUPREME COURT DECISIONS ARE ON OCCASION
OVERRULED AND THAT THE OPPORTUNITY TO OVERRULE THEM WOULD NEVER ARISE
IF LITIGANTS DID NOT CONTINUE TO CHALLENGE THEIR VALIDITY.  BUT, IN
THIS CONTEXT AT LEAST, IT IS UNNECESSARY TO PENALIZE THE UNITED STATES'
PROPER RELIANCE ON OUR PAST DECISIONS IN ORDER TO RE-EXAMINE THEM,
SINCE THERE IS NO BAR TO A SUIT BY PLAINTIFFS BELOW DIRECTLY AGAINST
OKLAHOMA FOR RECOVERY OF THE TAX.  CF. POAFPYBITTY V. SKELLY OIL CO.,
390 U.S. 365 (1968).  AND IF THE DOCTRINE OF STARE DECISIS HAS ANY
MEANING AT ALL, IT REQUIRES THAT PEOPLE IN THEIR EVERYDAY AFFAIRS BE
ABLE TO RELY ON OUR DECISIONS AND NOT BE NEEDLESSLY PENALIZED FOR SUCH
RELIANCE.     [[HC400'(ORIGINAL DOCUMENT PAGE 400)'  CF. FLOOD V. KUHN,
407 U.S. 258, 283 (1972); WALLACE V. M'CONNELL, 13 PET. 136, 150
(1839). 

WE DO NOT HAVE TO SAY THAT A FIDUCIARY MAY NEVER BE HELD LIABLE FOR
RELIANCE ON PRIOR DECISIONS OF THIS COURT, BUT, AS THE DISCUSSION ABOVE
DEMONSTRATES, THE UNITED STATES' RELIANCE ON WEST WAS REASONABLE IN
THIS SITUATION.  THE WEST DECISION HAS NEITHER BEEN OVERRULED NOR
QUESTIONED IN OUR SUBSEQUENT CASES.  IT IS FULLY CONSISTENT WITH LATER
DEVELOPMENTS AND HAS BEEN FOLLOWED WITHOUT PROTEST FOR 24 YEARS.  SINCE
WE FIND THAT THE UNITED STATES ACTED WITH THE REQUISITE CARE AND
PRUDENCE IN FOLLOWING WEST, THE DECISION BELOW MUST BE REVERSED WITH
INSTRUCTIONS TO ENTER JUDGMENT DISMISSING THE COMPLAINT. 

        SO ORDERED. 

/1/  THE LAND IN QUESTION ORIGINALLY BELONGED TO THE CHEROKEE
NATION, BUT IN 1866, THE CHEROKEES ENTERED A TREATY WITH THE UNITED
STATES AUTHORIZING THE UNITED STATES TO SETTLE FRIENDLY INDIANS IN
CHEROKEE TERRITORY.  SEE 14 STAT. 799.  PURSUANT TO THIS TREATY, THE
OSAGE INDIANS SETTLED THE LAND IN QUESTION, AND IN 1883, THE CHEROKEES
CONVEYED THE AREA TO THE UNITED STATES TO BE HELD IN TRUST FOR THE
OSAGE INDIANS.  SEE WEST V. OKLAHOMA TAX COMM'N, 334 U.S. 717, 720
(1948). 

/2/  THE ACT FOLLOWED THE PATTERN OF THE GENERAL ALLOTMENT ACT OF
1887, 24 STAT. 388, 25 U.S.C. ^ 331, WHICH EMPOWERED THE PRESIDENT TO
ALLOT RESERVATION LAND TO CERTAIN INDIANS, BUT FROM WHICH THE OSAGE
INDIANS WERE OMITTED. 

/3/  THE ACT HAS BEEN FREQUENTLY AMENDED.  78 STAT. 1008; 61 STAT.
747; 52 STAT. 1034; 45 STAT. 1478; 37 STAT. 86. 

/4/  ORIGINALLY, THE ACT PROVIDED THAT THE PROPERTY IN QUESTION
WOULD VEST IN THE INDIANS IN 25 YEARS.  SEE 34 STAT. 544.  HOWEVER, AN
AMENDMENT WAS PASSED IN 1938 EXTENDING THE TRUST PERIOD TO 1984.  SEE
52 STAT. 1035. 

/5/  THE SUIT WAS BROUGHT UNDER 28 U.S.C. ^ 1491, WHICH GIVES THE
COURT OF CLAIMS JURISDICTION "TO RENDER JUDGMENT UPON ANY CLAIM AGAINST
THE UNITED STATES FOUNDED EITHER UPON THE CONSTITUTION, OR ANY ACT OF
CONGRESS, OR ANY REGULATION OF AN EXECUTIVE DEPARTMENT, OR UPON ANY
EXPRESS OR IMPLIED CONTRACT WITH THE UNITED STATES, OR FOR LIQUIDATED
OR UNLIQUIDATED DAMAGES IN CASES NOT SOUNDING IN TORT." 

/6/  BOTH THE UNITED STATES, AS DEFENDANT BELOW, AND OKLAHOMA, AS
THIRD-PARTY DEFENDANT BELOW, PETITIONED FOR CERTIORARI.  WE GRANTED
BOTH PETITIONS, CF. 41 U.S.C. ^ 114(B) AND CONSOLIDATED THE CASES. 

/7/  RESPONDENTS ARGUE BEFORE THIS COURT THAT OUR RECENT DECISION IN
MCCLANAHAN V. ARIZONA STATE TAX COMM'N, 411 U.S. 164 (1973),
SUBSTANTIALLY EXTENDED THE PROTECTION AFFORDED INDIAN TRIBES AGAINST
STATE TAXATION AND THEREFORE UNDERMINED WEST.  MCCLANAHAN, HOWEVER,
CONCERNED A STATE INCOME TAX ON THE INCOME OF A RESERVATION INDIAN
WHICH WAS EARNED WITHIN THE RESERVATION -- A SITUATION WHOLLY DIFFERENT
FROM THAT PRESENTED HERE.  MOREOVER, MCCLANAHAN CITED OKLAHOMA TAX
COMM'N V. UNITED STATES, 319 U.S. 598 (1943), THE PREDECESSOR OF WEST,
WITH APPROVAL, AND SPECIFICALLY DISTINGUISHED THE CASE OF THE OSAGE
INDIANS BY HOLDING THAT "THE (INDIAN SOVEREIGNTY) DOCTRINE HAS NOT BEEN
RIGIDLY APPLIED IN CASES WHERE INDIANS HAVE LEFT THE RESERVATION AND
BECOME ASSIMILATED INTO THE GENERAL COMMUNITY."  411 U.S., AT 171. 

/8/  THE COURT OF CLAIMS RELIED IN PART UPON A TECHNICAL ADVICE
MEMORANDUM ISSUED BY THE INTERNAL REVENUE SERVICE TO THE OKLAHOMA
DISTRICT DIRECTOR OF INTERNAL REVENUE ON AUGUST 15, 1969.  THE
MEMORANDUM ANNOUNCED THAT HENCEFORTH, OSAGE TRUST PROPERTY WOULD BE
EXEMPT FROM FEDERAL ESTATE TAXATION.  THE COURT ALSO POINTED TO
BEARTRACK V. UNITED STATES, CT. CL. NO. 281 - 67, IN WHICH THE UNITED
STATES SETTLED A SUIT FOR REFUND OF FEDERAL ESTATE TAXES PAID ON
RESTRICTED TRUST PROPERTIES.  IT IS OBVIOUS, HOWEVER, THAT INTERNAL
REVENUE SERVICE DECISIONS AS TO THE SCOPE OF ITS OWN TAXING POWER HAVE
NO EFFECT ON THE TAXING POWER OF THE STATES. 

/9/  AS ALL PARTIES APPARENTLY RECOGNIZE, THE SCOPE OF THE UNITED
STATES' FIDUCIARY DUTY IN ADMINISTERING THE TRUST PROPERTY IS A
QUESTION OF FEDERAL LAW.  CF. CLEARFIELD TRUST CO. V. UNITED STATES,
318 U.S. 363 (1943). 

[[DOP 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES IN
NO. 72 - 654.  WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL
FRIZZELL, DEPUTY SOLICITOR GENERAL LACOVARA, HARRY R. SACHSE, EDMUNT B.
CLARK, AND CARL STRASS.  PAUL C. DUNCAN, ASSISTANT ATTORNEY GENERAL OF
OKLAHOMA, ARGUED THE CAUSE FOR PETITIONER IN NO. 72 - 606.  WITH HIM ON
THE BRIEF WAS LARRY DERRYBERRY, ATTORNEY GENERAL. 

CHARLES A. HOBBS ARGUED THE CAUSE FOR RESPONDENTS IN BOTH CASES. 
WITH HIM ON THE BRIEF WAS PIERRE J. LAFORCE, DAVID H. GETCHES FILED A
BRIEF FOR NATIVE AMERICAN RIGHTS FUND AS AMICUS CURIAE URGING
AFFIRMANCE IN NO. 72 - 654. 
..END :












UNITED STATES V. CHICAGO, BURLINGTON & QUINCY RAILROAD CO., 412 U.S.
401 


       CERTIORARI TO THE UNITED STATES COURT OF CLAIMS 

     NO. 72 - 90.  ARGUED FEBRUARY 26, 1973 -- DECIDED JUNE 4,
1973;

  197 CT. CL. 264, 455 F.2D 993, REVERSED AND REMANDED. 


    IN THIS REFUND SUIT, RESPONDENT RAILROAD SEEKS TO RECOVER AN

  ALLEGED INCOME TAX OVERPAYMENT RESULTING FROM ITS FAILURE TO TAKE

  DEDUCTIONS FOR DEPRECIATION WITH RESPECT TO THE COST OF

  FACILITIES CONSTRUCTED AT HIGHWAY-RAILROAD INTERSECTIONS AND

  ELSEWHERE THAT WERE PAID FOR, NOT BY RESPONDENT, BUT OUT OF

  GOVERMENT FUNDS APPROPRIATED TO FURTHER PUBLIC SAFETY AND IMPROVE

  HIGHWAY SYSTEMS.  RESPONDENT CLAIMED THAT THE SUBSIDIES QUALIFIED

  AS CONTRIBUTIONS TO ITS CAPITAL BY A NONSHAREHOLDER UNDER ^

  113(A) (8) OF THE INTERNAL REVENUE CODE OF 1939, THEREBY

  PERMITTING RESPONDENT TO DEPRECIATE THE GOVERNMENT'S COST IN THE

 ASSETS.  THE COURT OF CLAIMS RULED THAT RESPONDENT WAS ENTITLED

  TO THE CLAIMED DEPRECIATION DEDUCTION.  HELD:  THE GOVERNMENTAL

  SUBSIDIES DID NOT CONSTITUTE CONTRIBUTIONS TO RESPONDENT'S

  CAPITAL WITHIN THE MEANING OF ^ 113(A) (8); THE ASSETS IN

  QUESTION HAVE A ZERO BASIS; AND RESPONDENT CANNOT CLAIM A

  DEPRECIATION ALLOWANCE WITH RESPECT TO THOSE ASSETS.  AS CAN BE

  GLEANED FROM DETROIT EDISON CO. V. COMMISSIONER, 319 U.S. 98, AND

  BROWN SHOE CO. V. COMMISSIONER, 339 U.S. 583, TO QUALIFY AS A

  NONSHAREHOLDER CONTRIBUTION TO CAPITAL, THE ASSET MUST BECOME A

  PERMANENT PART OF THE TRANSFEREE'S WORKING CAPITAL STRUCTURE; MAY

  NOT BE COMPENSATION FOR THE TRANSFEREE'S SERVICES; MUST BE

  BARGAINED FOR; MUST BENEFIT THE TRANSFEREE COMMENSURATELY WITH

  ITS VALUE; AND ORDINARILY WILL BE USED TO PRODUCE ADDITIONAL

  INCOME.  HERE, ALMOST NONE OF THESE CRITERIA WAS MET, SINCE THE

  FACILITIES WERE NOT BARGAINED FOR AND, BUT FOR THE GOVERNMENTAL

  SUBSIDIES, WOULD NOT HAVE BEEN CONSTRUCTED.  NO SUBSTANTIAL

  INCREMENTAL BENEFIT IN TERMS OF INCOME PRODUCTION WAS CONSIDERED

  AT THE TIME THE FACILITIES WERE TRANSFERRED, AND SUCH MINOR

  BENEFIT AS MAY HAVE ACCRUED TO RESPONDENT FROM THE FACILITIES WAS

MERELY PERIPHERAL TO THE RAILROAD'S BUSINESS.  NOR WOULD

RESPONDENT'S ASSERTED OBLIGATION TO REPLACE THE FACILITIES

  WARRANT THE CLAIMED DEPRECIATION.  PP. 405 - 416. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BRENNAN, WHITE, MARSHALL, AND REHNQUIST, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 416, STEWART, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P.
417.  POWELL, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

[[HC402'(ORIGINAL DOCUMENT PAGE 402)' 

THE ISSUE IN THIS FEDERAL INCOME TAX CASE IS WHETHER THE RESPONDENT,
CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY (CB&Q), AN INTERSTATE
COMMON CARRIER RAILROAD, MAY DEPRECIATE THE COST OF CERTAIN FACILITIES
PAID FOR PRIOR TO JUNE 22, 1954, NOT BY IT OR BY ITS SHAREHOLDERS, BUT
FROM PUBLIC FUNDS. 

STARTING ABOUT 1930, CB&Q ENTERED INTO A SERIES OF CONTRACTS WITH
VARIOUS MIDWESTERN STATES.  BY THESE AGREEMENTS THE STATES WERE TO FUND
SOME OR ALL OF THE COSTS OF CONSTRUCTION OF SPECIFIED IMPROVEMENTS, AND
THE RAILROAD APPARENTLY WAS TO BEAR, AT LEAST IN PART, THE COSTS OF
MAINTENANCE AND REPLACEMENT OF THE IMPROVEMENTS ONCE THEY HAD BEEN
INSTALLED.  IN 1933, AS PART OF THE PROGRAM OF THE NATIONAL INDUSTRIAL
RECOVERY ACT, 48 STAT. 195, CONGRESS AUTHORIZED FEDERAL REIMBURSEMENT
TO THE STATES OF THE SHARES OF THE COSTS THE STATES INCURRED IN THE
CONSTRUCTION OF THOSE IMPROVEMENTS THAT INURED TO THE BENEFIT OF PUBLIC
SAFETY AND IMPROVED HIGHWAY TRAFFIC CONTROL.  /1/  IN 1944 CONGRESS
WENT FURTHER AND AUTHORIZED REIMBURSEMENT, WITH STATED LIMITATIONS, TO
THE STATES FOR THE ENTIRE COST OF THE IMPROVEMENTS, SUBJECT TO THE
CONDITION THAT A RAILROAD THAT RECEIVED A BENEFIT FROM A FACILITY SO
CONSTRUCTED WAS LIABLE TO THE GOVERNMENT FOR UP TO 10% OF THE COST OF
THE PROJECT PRO RATA IN RELATION TO THE BENEFIT RECEIVED BY THE
RAILROAD.  /2/ 

[[HC403'(ORIGINAL DOCUMENT PAGE 403)' 

UNDER THESE PROGRAMS CB&Q RECEIVED, AT PUBLIC EXPENSE, HIGHWAY
UNDERCROSSINGS AND OVERCROSSINGS HAVING A COST OF $1,538,543; CROSSING
SIGNALS, SIGNS, AND FLOODLIGHTS HAVING A COST OF $548,877; AND JETTIES
AND BRIDGES HAVING A COST OF $58,721.  /3/  THESE IMPROVEMENTS,
AGGREGATING $2,146,141, WERE CARRIED ON THE RAILROAD'S BOOKS AS CAPITAL
ASSETS EVEN THOUGH MOST OF THE AGREEMENTS BETWEEN CB&Q AND THE SEVERAL
STATES DID NOT EXPRESSLY CONVEY TITLE TO THE RAILROAD. 

CB&Q INSTITUTED A TIMELY SUIT IN THE COURT OF CLAIMS ALLEGING, AMONG
OTHER THINGS, THAT IT HAD OVERPAID ITS 1955 FEDERAL INCOME TAX BECAUSE
IT HAD FAILED TO ASSERT, AS A DEDUCTION ON ITS RETURN AS FILED,
ALLOWABLE DEPRECIATION ON THE SUBSIDIZED ASSETS.  /4/  BY A 4 - TO - 3
DECISION ON THIS ISSUE (ONLY ONE OF SEVERAL IN THE CASE), THE COURT OF
CLAIMS CONCLUDED THAT, UNDER ^ 167 OF THE INTERNAL REVENUE CODE OF
1954, 26 U.S.C. ^ 167, CB&Q WAS ENTITLED TO THE DEPRECIATION DEDUCTION
IT CLAIMED.  THIS WAS ON THE THEORY THAT THE SUBSIDIES QUALIFIED AS
CONTRIBUTIONS TO THE RAILROAD'S CAPITAL UNDER ^^ 362 AND 1052(C) OF
THAT CODE, 26 U.S.C. ^^ 362 AND 1052(C), AND UNDER ^ 113 (A) (8) OF THE
INTERNAL REVENUE CODE OF 1939. 

[[HC404'(ORIGINAL DOCUMENT PAGE 404)' 

IN ARRIVING AT THIS CONCLUSION, THE COURT OF CLAIMS MAJORITY RELIED
ON BROWN SHOE CO. V. COMMISSIONER, 339 U.S. 583 (1950), AND REASONED
THAT, EVEN THOUGH THE GOVERNMENTAL PAYMENTS FOR THE FACILITIES MAY NOT
HAVE BEEN INTENDED AS CONTRIBUTIONS TO THE RAILROAD'S CAPITAL, THE
"PRINCIPAL PURPOSE" BEING, INSTEAD, "TO BENEFIT THE COMMUNITY-AT
LARGE,"  197 CT. CL., AT 276, 455 F.2D, AT 1000, THE FACILITIES DID IN
FACT ENLARGE THE RAILROAD'S WORKING CAPITAL, WERE USED IN ITS BUSINESS,
AND PRODUCED ECONOMIC BENEFITS FOR IT, THEREBY QUALIFYING AS
CONTRIBUTIONS TO ITS CAPITAL UNDER THE CITED SECTION OF THE 1939 CODE. 
THE THREE DISSENTING JUDGES DISAGREED WITH THIS INTERPRETATION OF BROWN
SHOE, AND, INSTEAD RELIED ON DETROIT EDISON CO. V. COMMISSIONER, 319
U.S. 98 (1943).  THEY CONCLUDED THAT THE CRITICAL FEATURES WERE THE
DONOR'S ATTITUDE, PURPOSE, AND INTENT, AND THAT, WITH GOVERNMENTAL
PAYMENTS, THERE COULD BE NO INTENTION TO CONFER A BENEFIT UPON CB&Q.
INSTEAD, AS THE FINDINGS REVEALED, /5/  THE INTENTION WAS TO EXPEDITE
TRAFFIC FLOW AND TO IMPROVE PUBLIC SAFETY AT HIGHWAY-RAILROAD
CROSSINGS.  197 CT. CL., AT 315, 320, 455 F.2D, AT 1023, 1026. 

BECAUSE THE COURT OF CLAIMS DECISION APPARENTLY WOULD AFFORD A
PRECEDENT FOR THE TAX TREATMENT OF SUBSTANTIAL SUMS, /6/  WE GRANTED
CERTIORARI.  409 U.S. 947. 

        I 

[[HC405'(ORIGINAL DOCUMENT PAGE 405)' 

1954 CODE, 26 U.S.C. ^ 167(A), ALLOW A TAXPAYER "AS A DEPRECIATION
DEDUCTION A REASONABLE ALLOWANCE FOR THE EXHAUSTION, WEAR AND TEAR . .
. OF PROPERTY USED IN THE TRADE OR BUSINESS."  IN THE USUAL SITUATION
THE TAXPAYER HIMSELF INCURS COST IN ACQUIRING THE ASSETS AS TO WHICH
THE DEPRECIATION DEDUCTION IS ASSERTED.  /7/  BUT THERE ARE OTHER AND
DIFFERENT SITUATIONS FORMALLY RECOGNIZED IN THE GOVERNING TAX
STATUTES.  A FAMILIAR EXAMPLE IS GIFT PROPERTY.  /8/  ANOTHER IS
PROPERTY ACQUIRED BY A CORPORATION FROM ITS SHAREHOLDERS AS PAID-IN
SURPLUS OR AS A CONTRIBUTION TO CAPITAL.  /9/ 

[[HC406'(ORIGINAL DOCUMENT PAGE 406)' 

ANOTHER, AND THE ONE THAT IS PERTINENT HERE, IS COVERED BY ^ 113(A)
(8) /10/  OF THE 1939 CODE AND BY THE CONTRASTING PROVISIONS OF ^^
362(A) AND (C) OF THE 1954 CODE, 26 U.S.C. ^^ 362(A) AND (C).  /11/
THIS CONCERNS A CONTRIBUTION TO CAPITAL BY A NONSHAREHOLDER. 

[[HC407'(ORIGINAL DOCUMENT PAGE 407)'  SEE TREAS. REG. 111, ^
29.113(A) (8) - 1 (1943).  UNDER ^^ 113(A) (8) AND 114(A) OF THE
EARLIER CODE, THE NONSHAREHOLDER-CONTRIBUTED ASSET IN THE HANDS OF THE
RECEIVING CORPORATION HAD THE SAME BASIS, SUBJECT TO ADJUSTMENT, FOR
DEPRECIATION PURPOSES AS IT HAD IN THE HANDS OF THE TRANSFEROR; UNDER
THE 1954 CODE, HOWEVER, ITS BASIS FOR THE TRANSFEREE IS ZERO. 

PERTINENT TO ALL THIS IS THE COURT'S DECISION IN EDWARDS V. CUBA R.
CO., 268 U.S. 628 (1952).  THE COURT THERE HELD THAT SUBSIDIES GRANTED
BY THE CUBAN GOVERNMENT TO A RAILROAD TO PROMOTE CONSTRUCTION IN CUBA
"WERE NOT PROFITS OR GAINS FROM THE USE OR OPERATION OF THE RAILROAD,"
AND DID NOT CONSTITUTE INCOME TO THE RECEIVING CORPORATION.  ID., AT
633.  THE HOLDING IN EDWARDS, TAKEN WITH ^ 113 (A) (8) OF THE 1939
CODE, PRODUCED A SEEMINGLY ANOMALOUS RESULT, FOR IT MEANT THAT A
CORPORATE TAXPAYER RECEIVING PROPERTY FROM A NONSHAREHOLDER AS A
CONTRIBUTION TO CAPITAL NOT ONLY RECEIVED THE PROPERTY FREE FROM INCOME
TAX BUT WAS ALLOWED TO ASSERT A DEDUCTION FOR DEPRECIATION ON THE ASSET
SO RECEIVED TAX FREE.  THIS RESULT ALSO ENSUED UNDER THE COURT'S
HOLDING IN BROWN SHOE AND LED TO THE ENACTMENT OF THE ZERO-BASIS
PROVISION, REFERRED TO ABOVE, IN ^ 362(C) OF THE 1954 CODE, 26 U.S.C. ^
362(C). 

[[HC408'(ORIGINAL DOCUMENT PAGE 408)'  VETERANS FOUNDATION V.
COMMISSIONER, 317 F.2D 456, 458 (CA10 1963). 

CB&Q ARGUES THAT THIS VERY RESULT SHOULD FOLLOW HERE.  IT IS SAID
THAT THE RAILROAD RECEIVED NO TAXABLE INCOME AND INCURRED NO INCOME TAX
LIABILITY WHEN IT RECEIVED, AT GOVERNMENTAL EXPENSE PRIOR TO JUNE 22,
1954, THE FACILITIES, CB&Q ARGUES, THE GOVERNMENT INTENDED TO MAKE A
CONTRIBUTION TO THE RAILROAD'S CAPITAL, WITHIN THE MEANING OF ^ 113(A)
(8), THEREBY PERMITTING CB&Q TO DEPRECIATE THE GOVERNMENT'S COST IN THE
ASSETS.  WHETHER THE GOVERNMENTAL SUBSIDIES QUALIFIED AS INCOME TO THE
RAILROAD IS AN ISSUE NOT RAISED IN THIS CASE, AND WE INTIMATE NO
OPINION WITH RESPECT TO IT.  THE UNITED STATES, HOWEVER, ASSERTS THAT
THE SUBSIDIES DID NOT CONSTITUTE A "CONTRIBUTION TO CAPITAL" UNDER ^
113(A) (8), AND THAT, ACCORDINGLY, THE TRANSFEREE RAILROAD'S TAX BASIS
IS ZERO AND NO DEPRECIATION DEDUCTION IS AVAILABLE. 

OUR INQUIRY, THEREFORE, IS A NARROW ONE:  WHETHER THE NONSHAREHOLDER
PAYMENT IN THIS CASE CONSTITUTED A "CONTRIBUTION TO CAPITAL," WITHIN
THE MEANING OF ^ 113(A) (8).  BECAUSE BOTH DETROIT EDISON AND BROWN
SHOE BEAR UPON THE ISSUE, WE TURN TO THOSE TWO DECISIONS. 

     II 

DETROIT EDISON CONCERNED CUSTOMERS' PAYMENTS TO A UTILITY FOR THE
ESTIMATED COSTS OF CONSTRUCTION OF SERVICE FACILITIES (PRIMARY POWER
LINES) THAT THE UTILITY OTHERWISE WAS NOT OBLIGATED TO PROVIDE.  FOR
ITS TAX YEARS 1936 AND 1937, TO WHICH THE REVENUE ACT OF 1936, 49 STAT.
1648, APPLIED, THE UTILITY CLAIMED THE FULL COST OF THE FACILITIES IN
ITS BASE FOR COMPUTING DEPRECIATION.  THE COMMISSIONER DISALLOWED, FOR
DEPRECIATION PURPOSES, THAT PORTION OF THE COST PAID BY CUSTOMERS AND
NOT REFUNDABLE.  THE BOARD OF TAX APPEALS, 45 B. T. A. 358 (1941), AND
THE COURT OF APPEALS, 131 F.2D 619 (CA6 1942), SUSTAINED THE
COMMISSIONER. 

[[HC409'(ORIGINAL DOCUMENT PAGE 409)' 

THIS COURT AFFIRMED. 

MR. JUSTICE JACKSON, SPEAKING FOR A UNANIMOUS COURT (THE CHIEF
JUSTICE NOT PARTICIPATING), OBSERVED, "THE END AND PURPOSE OF IT ALL
(DEPRECIATION) IS TO APPROXIMATE AND REFLECT THE FINANCIAL CONSEQUENCES
TO THE TAXPAYER OF THE SUBTLE EFFECTS OF TIME AND USE ON THE VALUE OF
HIS CAPITAL ASSETS."  319 U.S., AT 101.  THE STATUTE, ^ 113(A) OF THE
1936 ACT, IT WAS SAID, "MEANS . . . COST TO THE TAXPAYER," EVEN THOUGH
THE PROPERTY "MAY HAVE A COST HISTORY QUITE DIFFERENT FROM ITS COST TO
THE TAXPAYER."  ALSO, THE "TAXPAYER'S OUTLAY IS THE MEASURE OF HIS
RECOUPMENT THROUGH DEPRECIATION ACCRUALS."  319 U.S., AT 102.  THE
UTILITY'S ATTEMPT TO AVOID THIS RESULT BY ITS CONTENTION THAT THE
PAYMENTS WERE GIFTS OR CONTRIBUTIONS TO ITS CAPITAL, AND ENTITLED TO
THE TRANSFERORS' BASES, WAS REJECTED. 

"IT IS ENOUGH TO SAY THAT IT OVERTAXES IMAGINATION TO REGARD THE
FARMERS AND OTHER CUSTOMERS WHO FURNISHED THESE FUNDS AS MAKERS EITHER
OF DONATIONS OR CONTRIBUTIONS TO THE COMPANY.  THE TRANSACTION NEITHER
IN FORM NOR IN SUBSTANCE BORE SUCH A SEMBLANCE. 

     "THE PAYMENTS WERE TO THE CUSTOMER THE PRICE OF THE SERVICE. 
.

  .  THEY HAVE NOT BEEN TAXED AS INCOME.  . .  BUT IT DOES NOT

  FOLLOW THAT THE COMPANY MUST BE PERMITTED TO RECOUP THROUGH

  UNTAXED DEPRECIATION ACCRUALS ON INVESTMENT IT HAS REFUSED TO

  MAKE."  ID., AT 102 - 103. 

DETROIT EDISON, BY ITSELF, WOULD APPEAR ALMOST TO FORECLOSE CB&Q'S
CLAIMS HERE, FOR THERE IS AN OBVIOUS PARALLEL BETWEEN THE CUSTOMERS'
PAYMENT FOR THE UTILITY SERVICE FACILITIES IN DETROIT EDISON, AND THE
GOVERNMENTAL PAYMENTS FOR IMPROVEMENTS TO THE RAILROAD'S SERVICE
FACILITIES IN THE CASE BEFORE US. 

BUT DETROIT EDISON WAS NOT THE LAST WORD. 

[[HC410'(ORIGINAL DOCUMENT PAGE 410)'  BROWN SHOE WAS DECIDED SEVEN
YEARS LATER, AND THE OPPOSITE TAX RESULT WAS REACHED BY AN 8 - 1 VOTE
OF THE COURT, WITH MR. JUSTICE BLACK IN DISSENT WITHOUT OPINION. 

BROWN SHOE CONCERNED A CORPORATE TAXPAYER'S EXCESS PROFITS TAX,
UNDER THE SECOND REVENUE ACT OF 1940, 54 STAT. 974, AS AMENDED, FOR ITS
FISCAL YEARS 1942 AND 1943.  COMMUNITY GROUPS PAID CASH OR TRANSFERRED
PROPERTY TO THE TAXPAYER AS AN INDUCEMENT FOR THE LOCATION OR EXPANSION
OF FACTORY OPERATIONS IN THEIR COMMUNITIES.  CONTRACTS WERE ENTERED
INTO, AND IN EACH INSTANCE THE TAXPAYER OBLIGATED ITSELF TO LOCATE OR
ENLARGE A FACILITY IN THE COMMUNITY AND TO OPERATE IT FOR AT LEAST A
MINIMUM TERM.  THE VALUE OF THE PAYMENTS AND TRANSFERS WAS THE FOCUS OF
THE CONTROVERSY BETWEEN THE TAXPAYER AND THE COMMISSIONER, FOR
DEPRECIATION ON THE TRANSFERRED ASSETS WAS CLAIMED AND THEIR INCLUSION
IN EQUITY INVESTED CAPITAL WAS ASSERTED.  THE TAX COURT OVERRULED THE
COMMISSIONER'S DISALLOWANCE WITH RESPECT TO THE ACQUISITIONS PAID FOR
WITH CASH, BUT SUSTAINED THE COMMISSIONER WITH RESPECT TO BUILDINGS
TRANSFERRED.  10 T. C. 291 (1948).  THE COURT OF APPEALS UPHELD THE
COMMISSIONER ON BOTH ITEMS.  175 F.2D 305 (CA8 1949).  THIS COURT
REVERSED. 

MR. JUSTICE CLARK, WRITING THE OPINION FOR THE MAJORITY OF THE
COURT, CONCLUDED THAT THE ASSETS TRANSFERRED BY THE COMMUNITY GROUPS TO
THE TAXPAYER WERE CONTRIBUTIONS TO CAPITAL, WITHIN THE MEANING OF ^
113(A) (8) OF THE 1939 CODE.  THE COURT NOTED THAT IN TIME THEY WOULD
WEAR OUT AND, IF THE TAXPAYER CONTINUED IN BUSINESS, THE PHYSICAL PLANT
EVENTUALLY WOULD HAVE TO BE REPLACED.  DETROIT EDISON WAS CITED AND
RECOGNIZED, BUT WAS CONSIDERED NOT TO BE CONTROLLING.  IN BROWN SHOE
THERE WERE "NEITHER CUSTOMERS NOR PAYMENTS FOR SERVICE," AND THEREFORE
THE COURT "MAY INFER A DIFFERENT PURPOSE IN THE TRANSACTIONS BETWEEN
PEITIONER AND THE COMMUNITY GROUPS."  339 U.S., AT 591.  THE ONLY
EXPECTATION OF THE GROUPS WAS THAT "SUCH CONTRIBUTIONS MIGHT PROVE
ADVANTAGEOUS TO THE COMMUNITY AT LARGE." 

[[HC411'(ORIGINAL DOCUMENT PAGE 411)'  THUS, IT WAS SAID, "THE
TRANSFERS MANIFESTED A DEFINITE PURPOSE TO ENLARGE THE WORKING CAPITAL
OF THE COMPANY."  IBID. 

THE COURT THUS PROFESSED TO DISTINGUISH AND NOT AT ALL TO OVERRULE
DETROIT EDISON.  IT DID SO ON AN ANALYSIS OF THE PURPOSES BEHIND THE
RESPECTIVE TRANSFERS IN THE TWO CASES.  WHERE THE FACTS WERE SUCH THAT
THE TRANSFERORS COULD NOT BE REGARDED AS HAVING INTENDED TO MAKE
CONTRIBUTIONS TO THE CORPORATION, AS IN DETROIT EDISON, THE ASSETS
TRANSFERRED WERE NOT DEPRECIABLE.  BUT WHERE THE TRANSFERS WERE MADE
WITH THE PURPOSE NOT OF RECEIVING DIRECT SERVICE OR RECOMPENSE BUT ONLY
OF OBTAINING ADVANTAGE FOR THE GENERAL COMMUNITY, AS IN BROWN SHOE, THE
RESULT WAS A CONTRIBUTION TO CAPITAL. 

        III 

IT SEEMS FAIR TO SAY THAT NEITHER IN DETROIT EDISON NOR IN BROWN
SHOE DID THE COURT FOCUS UPON THE USE TO WHICH THE ASSETS TRANSFERRED
WERE APPLIED, OR UPON THE ECONOMIC AND BUSINESS CONSEQUENCES FOR THE
TRANSFEREE CORPORATION.  INSTEAD, THE COURT STRESSED THE INTENT OR
MOTIVE OF THE TRANSFEROR AND DETERMINED THE TAX CHARACTER OF THE
TRANSACTION BY THAT INTENT OR MOTIVE.  THUS, THE DECISIONAL DISTINCTION
BETWEEN DETROIT EDISON AND BROWN SHOE RESTED UPON THE NATURE OF THE
BENEFIT TO THE TRANSFEROR, RATHER THAN TO THE TRANSFEREE, AND UPON
WHETHER THAT BENEFIT WAS DIRECT OR INDIRECT, SPECIFIC OR GENERAL,
CERTAIN OR SPECULATIVE.  /12/  THESE FACTORS, OF COURSE, ARE SIMPLY
INDICIA OF THE TRANSFEROR'S INTENT OR MOTIVE.     THAT THIS LINE OF
INQUIRY, AND THESE DISTINCTIONS, HAVE RELATIVELY LITTLE TO DO WITH THE
ECONOMIC AND BUSINESS CONSEQUENCES OF THE TRANSACTION SEEMS SELF
EVIDENT.  /13/ 

[[HC412'(ORIGINAL DOCUMENT PAGE 412)'  IN BOTH CASES THE ASSETS
TRANSFERRED WERE ACTUALLY USED IN THE TRANSFEREE'S TRADE OR BUSINESS
FOR THE PRODUCTION OF INCOME.  IN NEITHER CASE DID THE TRANSFEREE
PROVIDE THE INVESTMENT FOR THE ASSETS SOUGHT TO BE DEPRECIATED.  YET IN
BOTH CASES, THE ASSETS IN QUESTION WERE TRANSFERRED FOR A CONSIDERATION
PURSUANT TO AN AGREEMENT.  IF, AT FIRST GLANCE, DETROIT EDISON AND
BROWN SHOE SEEM SOMEWHAT INCONSISTENT, THEY MAY BE RECONCILED, AND
INDEED MUST BE, ON THE GROUND THAT IN DETROIT EDISON THE TRANSFEROR
INTENDED NO CONTRIBUTION TO THE TRANSFEREE'S CAPITAL, WHEREAS IN BROWN
SHOE THE TRANSFERORS DID HAVE THAT INTENT. 

THE STATUTORY PHRASE "CONTRIBUTION TO CAPITAL" IS NOWHERE EXPRESSLY
DEFINED IN EITHER THE 1939 CODE OR THE 1954 CODE, AND OUR PRIOR
DECISIONS PROVIDE ONLY LIMITED GUIDANCE AS TO ITS PRECISE MEANING. 
DETROIT EDISON MIGHT BE SAID TO BE ONLY A HOLDING THAT A PAYMENT FOR
SERVICES IS NOT A CONTRIBUTION TO CAPITAL.  BROWN SHOE SHEDS LITTLE
ADDITIONAL LIGHT, FOR THE COURT STATED ONLY THAT BECAUSE THE COMMUNITY
PAYMENTS WERE NOT COMPENSATION FOR SPECIFIC SERVICES RENDERED, AND DID
NOT CONSTITUTE GIFTS, THEY MUST HAVE BEEN MADE IN ORDER TO ENLARGE THE
WORKING CAPITAL OF THE COMPANY. 

[[HC413'(ORIGINAL DOCUMENT PAGE 413)'  339 U.S., AT 591. 

BUT OTHER CHARACTERISTICS OF A CONTRIBUTION TO CAPITAL ARE IMPLICIT
IN THE TWO CASES AND BECOME APPARENT WHEN VIEWED IN THE LIGHT OF THE
FACTS PRESENTLY BEFORE US.  IN BROWN SHOE, FOR EXAMPLE, THE CONTRIBUTED
FUNDS WERE INTENDED TO BENEFIT NOT ONLY THE TRANSFERORS BUT THE
TRANSFEREE AS WELL, FOR THE ASSETS WERE PUT TO IMMEDIATE USE BY THE
TAXPAYER FOR THE GENERATION OF ADDITIONAL INCOME.  WITHOUT BENEFIT TO
THE TAXPAYER, THE AGREEMENT CERTAINLY WOULD NOT HAVE BEEN MADE. 
PERHAPS TO SOME EXTENT THIS WAS TRUE IN DETROIT EDISON; THAT TAXPAYER,
HOWEVER, WAS A PUBLIC UTILITY, AND THE ANTICIPATED REVENUE FROM THE
SERVICE LINES TO THE CUSTOMERS WOULD NOT HAVE WARRANTED THE INVESTMENT
BY THE UTILITY ITSELF.  319 U.S., AT 99.  ITS BENEFIT, THEREFORE, WAS
MARGINAL. 

WE CAN DISTILL FROM THESE TWO CASES SOME OF THE CHARACTERISTICS OF A
NONSHAREHOLDER CONTRIBUTION TO CAPITAL UNDER THE INTERNAL REVENUE
CODES.  IT CERTAINLY MUST BECOME A PERMANENT PART OF THE TRANSFEREE'S
WORKING CAPITAL STRUCTURE.  IT MAY NOT BE COMPENSATION, SUCH AS A
DIRECT PAYMENT FOR A SPECIFIC, QUANTIFIABLE SERVICE PROVIDED FOR THE
TRANSFEROR BY THE TRANSFEREE.  IT MUST BE BARGAINED FOR.  THE ASSET
TRANSFERRED FORESEEABLY MUST RESULT IN BENEFIT TO THE TRANSFEREE IN AN
AMOUNT COMMENSURATE WITH ITS VALUE.  AND THE ASSET ORDINARILY, IF NOT
ALWAYS, WILL BE EMPLOYED IN OR CONTRIBUTE TO THE PRODUCTION OF
ADDITIONAL INCOME AND ITS VALUE ASSURED IN THAT RESPECT. 

BY THIS MEASURE, THE ASSETS WITH WHICH THIS CASE IS CONCERNED
CLEARLY DO NOT QUALIFY AS CONTRIBUTIONS TO CAPITAL.  ALTHOUGH THE
ASSETS WERE NOT PAYMENTS FOR SPECIFIC, QUANTIFIABLE SERVICES PERFORMED
BY CB&Q FOR THE GOVERNMENT AS A CUSTOMER, OTHER CHARACTERISTICS OF THE
TRANSACTION LEAD US TO THE CONCLUSION THAT, DESPITE THIS, THE ASSETS
DID NOT QUALIFY AS CONTRIBUTIONS TO CAPITAL. 

[[HC414'(ORIGINAL DOCUMENT PAGE 414)'  THE FACILITIES WERE NOT IN
ANY REAL SENSE BARGAINED FOR BY CB&Q.  INDEED, EXCEPT FOR THE ORDERS BY
STATE COMMISSIONS AND THE GOVERNMENTAL SUBSIDIES, THE FACILITIES MOST
LIKELY WOULD NOT HAVE BEEN CONSTRUCTED AT ALL.  /14/  SEE NASHVILLE, C.
& ST. L. R. CO. V. WALTERS, 294 U.S. 405, 421 - 424 (1935).  THE
TRANSACTION IN SUBSTANCE WAS UNILATERAL:  CB&Q WOULD ACCEPT THE
FACILITIES IF THE GOVERNMENT WOULD REQUIRE THEIR CONSTRUCTION AND WOULD
PAY FOR THEM.  ANY INCREMENTAL ECONOMIC BENEFIT TO CB&Q FROM THE
FACILITIES WAS MARGINAL; ITS EXTENT AND IMPORTANCE WERE INDICATED AND
ACCOUNTED FOR BY THE REQUIREMENT THAT THE RAILROAD PAY NOT TO EXCEED
10% OF THE COST IN RELATION TO ITS OWN BENEFIT.  /15/  THE FACILITIES
WERE PERIPHERAL TO ITS BUSINESS AND DID NOT MATERIALLY CONTRIBUTE TO
THE PRODUCTION OF FURTHER INCOME BY THE RAILROAD.  THEY SIMPLY REPLACED
EXISTING FACILITIES OR PROVIDED NEW, BETTER, AND SAFER ONES WHERE NONE
OTHERWISE WOULD HAVE BEEN DEEMED NECESSARY.  AS THE COURT OF CLAIMS
FOUND, THE FACILITIES WERE CONSTRUCTED "PRIMARILY FOR THE BENEFIT OF
THE PUBLIC TO IMPROVE SAFETY AND TO EXPEDITE HIGHWAY TRAFFIC FLOW,"
/16/  AND THE NEED OF THE RAILROAD FOR CAPITAL FUNDS WAS NOT
CONSIDERED, 197 CT. CL., AT 326.  WHILE SOME INCREMENTAL BENEFIT FROM
LOWER ACCIDENT RATES, FROM REDUCED EXPENSES OF OPERATING CROSSING
FACILITIES, AND FROM POSSIBLY HIGHER TRAIN SPEED MIGHT HAVE RESULTED,
THESE WERE INCIDENTAL AND INSUBSTANTIAL IN RELATION TO THE VALUE NOW
SOUGHT TO BE DEPRECIATED, AND THEY WERE PRESUMABLY CONSIDERED IN
COMPUTING THE RAILROAD'S MAXIMUM 10% LIABILITY UNDER THE ACT. 

[[HC415'(ORIGINAL DOCUMENT PAGE 415)'  IN OUR VIEW, NO SUBSTANTIAL
INCREMENTAL BENEFIT IN TERMS OF THE PRODUCTION OF INCOME WAS
FORESEEABLE OR TAKEN INTO CONSIDERATION AT THE TIME THE FACILITIES WERE
TRANSFERRED.  ACCORDINGLY, NO CONTRIBUTION TO CAPITAL WAS EFFECTED. 

CB&Q NEVERTHELESS CONTENDS THAT IT IS ENTITLED TO DEPRECIATE THE
FACILITIES BECAUSE OF ITS OBLIGATION TO MAINTAIN AND REPLACE THEM. 
WHATEVER MAY BE THE DESIRABILITY OF CREATING A DEPRECIATION RESERVE
UNDER THESE CIRCUMSTANCES, AS A MATTER OF GOOD BUSINESS AND ACCOUNTING
PRACTICE, THE ANSWER IS, AS JUDGE DAVIS OF THE COURT OF CLAIMS OBSERVED
IN DISSENT, 197 CT. CL., AT 318, 455 F.2 D, AT 1025, "DEPRECIATION
REFLECTS THE COST OF AN EXISTING CAPITAL ASSET, NOT THE COST OF A
POTENTIAL REPLACEMENT."  REISINGER V. COMMISSIONER, 144 F.2D 475, 478
(CA2 1944).  SEE UNITED STATES V. LUDEY, 274 U.S. 295, 300 - 301
(1927); WEISS V. WIENER, 279 U.S. 333, 335 - 336 (1929); HELVERING V.
LAZARUS & CO., 308 U.S. 252, 254 (1939); MASSEY MOTORS V. UNITED
STATES, 364 U.S. 92 (1960); FRIBOURG NAV. CO. V. COMMISSIONER, 383 U.S.
272 (1966). 

WE CONCLUDE THAT THE GOVERNMENTAL SUBSIDIES DID NOT CONSTITUTE
CONTRIBUTIONS TO CB&Q'S CAPITAL, WITHIN THE MEANING OF ^ 113 (A) (8) OF
THE 1939 CODE; THAT THE ASSETS IN QUESTION IN THE HANDS OF CB&Q HAVE A
ZERO BASIS, UNDER ^^ 113 AND 114 OF THAT CODE AND ^ 1052(C) OF THE 1954
CODE, 26 U.S.C. ^ 1052(C); AND THAT CB&Q IS THEREFORE PRECLUDED FROM
CLAIMING A DEPRECIATION ALLOWANCE WITH RESPECT TO THOSE ASSETS.  /17/
THE JUDGMENT OF THE COURT OF CLAIMS ON THIS ISSUE IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS. 

[[HC416'(ORIGINAL DOCUMENT PAGE 416)'

              IT IS SO ORDERED. 

/1/  NATIONAL INDUSTRIAL RECOVERY ACT, ^ 204(A) (1), 48 STAT. 203. 

/2/  FEDERAL-AID HIGHWAY ACT OF 1944, ^ 5, 58 STAT. 840. 

/3/  THE COURT OF CLAIMS, BOTH THE MAJORITY AND DISSENTERS,
ASSERTED, AND INDEED FOUND, THAT THE $1,538,543 FIGURE RELATED TO
HIGHWAY UNDERCROSSINGS AND OVERCROSSINGS.  197 CT. CL. 264, 271 - 272,
325, 455 F.2D 993, 997 - 998 (1972).  CB&Q, IN ITS BRIEF, P. 3, AND IN
ORAL ARGUMENT, TR. OF ORAL ARG. 25, CLAIMS THAT THIS FIGURE HAS TO DO
ONLY WITH RAILROAD BRIDGES AND THAT THE ASSETS SOUGHT TO BE DEPRECIATED
RELATE ONLY TO RAILROAD USE.  ACCORDING TO CB&Q, NO FACILITIES DIRECTLY
RELATED TO HIGHWAY USE ARE INVOLVED.  INASMUCH AS THE RESOLUTION OF
THIS FACTUAL ISSUE WOULD NOT AFFECT THE RESULT WE REACH, IT NEED NOT BE
RESOLVED. 

/4/  THE PARTIES ARE IN AGREEMENT AS TO WHAT THE ADJUSTED BASES OF
THE ASSETS IN QUESTION WOULD BE, AND AS TO THE APPLICABLE RATES OF
DEPRECIATION, IF DEPRECIATION FOR TAX PURPOSES IS ALLOWABLE AT ALL. 

/5/  THE TRIAL COMMISSIONER AND THE COURT OF CLAIMS MADE THE
FOLLOWING FINDING OF FACT: 

"9.  THE FACILITIES NOTED IN FINDING 7 WERE CONSTRUCTED PRIMARILY
FOR THE BENEFIT OF THE PUBLIC TO IMPROVE SAFETY AND TO EXPEDITE HIGHWAY
TRAFFIC FLOW.  PLAINTIFF (CB&Q), HOWEVER, RECEIVED BENEFITS FROM THE
FACILITIES, AMONG OTHERS, PROBABLE LOWER ACCIDENT RATES, REDUCED
EXPENSES OF OPERATING CROSSING FACILITIES, AND, WHERE PERMITTED, HIGHER
TRAIN SPEED LIMITS, ALL OF WHICH PERMITTED PLAINTIFF TO FUNCTION MORE
EFFICIENTLY AND PRESUMABLY LESS EXPENSIVELY."  197 CT. CL., AT 326 -
327. 

/6/  THE SOLICTOR GENERAL ASSERTS, PET. FOR CERT. 15 - 16, THAT
$623,000,000 IN FEDERAL FUNDS WERE PAID OUT FOR PROJECTS AND
IMPROVEMENTS AT RAILROAD-HIGHWAY GRADE CROSSINGS ALONE BETWEEN 1934 AND
1954.  SEE U.S. DEPARTMENT OF TRANSPORTATION, REPORT TO CONGRESS:
RAILROAD-HIGHWAY SAFETY, PART I:  A COMPREHENSIVE STATEMENT OF THE
PROBLEM 38 (1971).  THE COMMISSIONER OF INTERNAL REVENUE ESTIMATES
THAT, TAKING INTO ACCOUNT GRANTS OF THIS KIND TO RAILROADS AND FEDERAL
GRANTS TO UTILITY COMPANIES, DEPRECIATION ON PROPERTY WITH ASSERTED
COST BASES BETWEEN A HALF BILLION AND ONE BILLION DOLLARS IS DEPENDENT
UPON THE RESOLUTION OF THIS ISSUE AND IS STILL LITIGABLE.  PET. FOR
CERT. 16. 

/7/  SECTION 113(A) OF THE 1939 CODE AND ^ 1012 OF THE 1954 CODE, 26
U.S.C. ^ 1012, STATE THE GENERAL RULE THAT THE "BASIS OF PROPERTY SHALL
BE THE COST OF SUCH PROPERTY." 

/8/  SECTION 113(A) (2) OF THE 1939 CODE PROVIDES THAT WITH RESPECT
TO "PROPERTY . . . ACQUIRED BY GIFT AFTER DECEMBER 31, 1920, THE BASIS
SHALL BE THE SAME AS IT WOULD BE IN THE HANDS OF THE DONOR OR THE LAST
PRECEDING OWNER BY WHOM IT WAS NOT ACQUIRED BY GIFT, EXCEPT . . ." 
THIS PROVISION WAS CARRIED OVER INTO ^ 1015(A) OF THE 1954 CODE, 26
U.S.C. ^ 1015(A).  THE LANGUAGE OF ^ 362(C) OF THE 1954 CODE, TO THE
EFFECT THAT THE BASIS OF A NONSHAREHOLDER'S CONTRIBUTION MADE ON OR
AFTER JUNE 22, 1954, TO THE CAPITAL OF A CORPORATION SHALL BE ZERO IN
THE HANDS OF THE TRANSFEREE, HAS BEEN SAID NOT TO AFFECT THE
AVAILABILITY OF A CARRYOVER BASIS WITH RESPECT TO GIFTS.  SEE H. R.
REP. NO. 1337, 83D CONG., 2D SESS., A128 (1954); S. REP. NO. 1622, 83D
CONG., 2D SESS., 272 (1954); B. BITTKER & J. EUSTICE, FEDERAL INCOME
TAXATION OF CORPORATIONS AND SHAREHOLDERS PARA. 3.14, PP. 3 - 51 AND N.
81 (3D ED. 1971); 3A J. MERTENS, LAW OF FEDERAL INCOME TAXATION ^
21.134 (1968 REV.). 

/9/  SECTION 113(A) (8) OF THE 1939 CODE; ^ 362(A) OF THE 1954 CODE,
26 U.S.C. - 362(2). 

/10/ 113.  ADJUSTED BASIS FOR DETERMINING GAIN OF LOSS. 

"(A) BASIS (UNADJUSTED) OF PROPERTY. 

"THE BASIS OF PROPERTY SHALL BE THE COST OF SUCH PROPERTY; EXCEPT
THAT --

        .        .          .          . 

"(8) PROPERTY ACQUIRED BY ISSUANCE OF STOCK OR AS PAID-IN SURPLUS. 

"IF THE PROPERTY WAS ACQUIRED AFTER DECEMBER 31, 1920, BY A
CORPORATION -- 

"(A) BY THE ISSUANCE OF ITS STOCK OR SECURITIES IN CONNECTION WITH A
TRANSACTION DESCRIBED IN SECTION 112(B) (5) (INCLUDING, ALSO, CASES
WHERE PART OF THE CONSIDERATION FOR THE TRANSFER OF SUCH PROPERTY TO
THE CORPORATION WAS PROPERTY OR MONEY, IN ADDITION TO SUCH STOCK OR
SECURITIES), OR 

"(B) AS PAID-IN SURPLUS OR AS A CONTRIBUTION TO CAPITAL, THEN THE
BASIS SHALL BE THE SAME AS IT WOULD BE IN THE HANDS OF THE TRANSFEROR,
INCREASED IN THE AMOUNT OF GAIN OR DECREASED IN THE AMOUNT OF LOSS
RECOGNIZED TO THE TRANSFEROR UPON SUCH TRANSFER UNDER THE LAW
APPLICABLE TO THE YEAR IN WHICH THE TRANSFER WAS MADE." 

/11/  "^ 362.  BASIS TO CORPORATIONS. 

"(A) PROPERTY ACQUIRED BY ISSUANCE OF STOCK OR AS PAID-IN SURPLUS. 

"IF PROPERTY WAS ACQUIRED ON OR AFTER JUNE 22, 1954, BY A
CORPORATION -- 

"(1) IN CONNECTION WITH A TRANSACTION TO WHICH SECTION 351 (RELATING
TO TRANSFER OF PROPERTY TO CORPORATION CONTROLLED BY TRANSFEROR)
APPLIES, OR 

"(2) AS PAID-IN SURPLUS OR AS A CONTRIBUTION TO CAPITAL, THEN THE
BASIS SHALL BE THE SAME AS IT WOULD BE IN THE HANDS OF THE TRANSFEROR,
INCREASED IN THE AMOUNT OF GAIN RECOGNIZED TO THE TRANSFEROR ON SUCH
TRANSFER. 

        .          .          .          . 

"(C) SPECIAL RULE FOR CERTAIN CONTRIBUTIONS TO CAPITAL. 

"(1) PROPERTY OTHER THAN MONEY. 

"NOTWITHSTANDING SUBSECTION (A) (2), IF PROPERTY OTHER THAN MONEY -
 

"(A) IS ACQUIRED BY A CORPORATION, ON OR AFTER JUNE 22, 1954, AS A
CONTRIBUTION TO CAPITAL, AND "(B) IS NOT CONTRIBUTED BY A SHAREHOLDER
AS SUCH, THEN THE BASIS OF SUCH PROPERTY SHALL BE ZERO. 

"(2) MONEY. 

"NOTWITHSTANDING SUBSECTION (A) (2), IF MONEY -- 

"(A) IS RECEIVED BY A CORPORATION, ON OR AFTER JUNE 22, 1954, AS A
CONTRIBUTION TO CAPITAL, AND 

"(B) IS NOT CONTRIBUTED BY A SHAREHOLDER AS SUCH, THEN THE BASIS OF
ANY PROPERTY ACQUIRED WITH SUCH MONEY DURING THE 12-MONTH PERIOD
BEGINNING ON THE DAY THE CONTRIBUTION IS RECEIVED SHALL BE REDUCED BY
THE AMOUNT OF SUCH CONTRIBUTION." 

/12/  SEE, FOR EXAMPLE, TELESERVICE CO. V. COMMISSIONER, 254 F.2D
105 (CA3 1958), CERT. DENIED, 357 U.S. 919 (1959); UNITED GROCERS, LTD.
V. UNITED STATES, 308 F. 2D 634 (CA9 1962).  THERE IS SUPPORT IN THE
LEGISLATIVE HISTORY OF ^ 118 OF THE 1954 CODE, 26 U.S.C. ^ 118,
PROVIDING FOR THE EXCLUSION FROM GROSS INCOME OF "ANY CONTRIBUTION TO
THE CAPITAL OF THE TAXPAYER," FOR THE INDIRECT BENEFIT -- PREPAYMENT
FOR-FUTURE-SERVICES DISTINCTION.  H. R. REP. NO. 1337, 83D CONG., 2D
SESS., 17 (1954). 

/13/  THE DISTINCTIONS WROUGHT BY DETROIT EDISON AND BROWN SHOE HAVE
BEEN THE SUBJECT OF SCHOLARLY CRITICISM.  SEE, FOR EXAMPLE, NOTE,
TAXATION OF NONSHAREHOLDER CONTRIBUTIONS TO CORPORATE CAPITAL, 82 HAR. 
L. REV. 619 (1969); LANDIS, CONTRIBUTIONS TO CAPITAL OF CORPORATIONS,
24 TAX L. REV. 241 (1969); NOTE, TAX CONSEQUENCES OF NON-SHAREHOLDER
CONTRIBUTIONS TO CORPORATE CAPITAL, 66 YALE L. J. 1085 (1957); FREEMAN
& SPEILLER, TAX CONSEQUENCES OF SUBSIDIES TO INDUCE BUSINESS LOCATION,
9 TAX.  L. REV. 255 (1954).  IN THE ARTICLE LAST CITED THE AUTHORS
SUGGEST THAT DETROIT EDISON AND BROWN SHOE ARE IRRECONCILABLE, THE
LATTER IN EFFECT OVERRULING THE FORMER.  ID., AT 262.  SEE ALSO THE
SUPREME COURT, 1949 TERM, 64 HARV. L. REV. 114, 149 - 151 (1950). 
/14/  COUNSEL FOR CB&Q STATED AT ORAL ARGUMENT THAT THE RAILROAD WAS
UNDER A "PREEXISTING LEGAL OBLIGATION TO CONSTRUCT THESE FACILITIES"
THAT WERE FUNDED BY THE GOVERNMENTAL SUBSIDIES.  TR. OF ORAL ARG. 30,
35 - 36.     /15/  THE GOVERNMENT DOES NOT CHALLENGE THE CB&Q'S RIGHT
TO DEPRECIATE THOSE PORTIONS OF A FACILITY FOR WHICH IT WAS REQUIRED TO
PAY. 

/16/  SEE N. 5, SUPRA. 

/17/  THE GOVERNMENT HAS ARGUED, IN THE ALTERNATIVE, THAT, BY VIRTUE
OF A "TERMS LETTER" AGREEMENT ENTERED INTO BY CB&Q AND THE COMMISSIONER
WITH RESPECT TO A CHANGE IN THE RAILROAD'S ACCOUNTING METHOD FROM
RETIREMENT TO STRAIGHT-LINE DEPRECIATION, CB&Q IRREVOCABLY AGREED TO
EXCLUDE DONATED PROPERTY, OR CONTRIBUTIONS OR GRANTS IN AID OF
CONSTRUCTION FROM ANY SOURCE, FROM ITS DEPRECIATION BASE.  BECAUSE OF
OUR CONCLUSION THAT THE GOVERNMENTAL PAYMENTS DID NOT QUALIFY AS
CONTRIBUTIONS TO CAPITAL, WE NEED NOT DETERMINE WHETHER THE "TERMS
LETTER" AGREEMENT BARRED CB&Q FROM CLAIMING DEPRECIATION ON THE ASSETS
IN QUESTION. 

[[DOP 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHILE I JOIN THE DISSENT OF MR. JUSTICE STEWART, I ADD A FEW WORDS. 
FUNDS WERE CONTRIBUTED BY THE STATES AND BY THE FEDERAL GOVERNMENT TO
RESPONDENT FOR THE CONSTRUCTION OF HIGHWAY OVERPASSES AND UNDERPASSES
AND FOR GRADE-CROSSING PROTECTION EQUIPMENT.  WHILE THE GOVERNMENT
PROVIDED MOST OF THE FUNDS, THE RESPONDENT DID MOST OF THE CONSTRUCTION
WORK -- ALL AS FOUND BY THE COURT OF CLAIMS.  197 CT. CL. 264, 271, 455
F.2D 993, 997 - 998. 

THIS CASE IS NOT CONTROLLED BY DETROIT EDISON CO. V. COMMISSIONER,
319 U.S. 98, AS MR JUSTICE STEWART SAYS, FOR THERE THE ADVANCES WERE
MADE BY CUSTOMERS OF A UTILITY AS PART OF "THE PRICE OF THE SERVICE." 
ID., AT 103.  HERE, HOWEVER, THE SITUATION WAS DIFFERENT.  AS THE COURT
OF CLAIMS FOUND: 

"UNDER ALL THE AGREEMENTS, PLAINTIFF WAS OBLIGATED TO MAINTAIN AND
REPLACE AS NECESSARY, AT ITS OWN EXPENSE, FACILITIES ORIGINALLY BUILT. 
THE FACILITIES WERE CONSTRUCTED PRIMARILY FOR THE BENEFIT OF THE PUBLIC
TO IMPROVE SAFETY AND TO EXPEDITE MOTOR-VEHICLE TRAFFIC FLOW.  THE
RECORD SHOWS, HOWEVER, THAT PLAINTIFF RECEIVED ECONOMIC BENEFITS FROM
THE FACILITIES, E. G., PROBABLE LOWER ACCIDENT RATES, REDUCED EXPENSES
OF OPERATING CROSSING EQUIPMENT AND, WHERE PERMITTED, HIGHER TRAIN
SPEED LIMITS.  PLAINTIFF ALSO RECEIVED INTANGIBLE BENEFITS, E. G.,
GOODWILL FROM THE COMMUNITY-AT-LARGE, WHICH WAS TO PLAINTIFF'S LONG
TERM ECONOMIC ADVANTAGE."  197 CT. CL., AT 272, 455 F.2D, AT 998. 

THE CASE IS THEREFORE ON ALL FOURS WITH BROWN SHOE CO. V.
COMMISSIONER, 339 U.S. 583.  IN DISTINGUISHING DETROIT EDISON WE SAID: 

"SINCE IN THIS CASE THERE ARE NEITHER CUSTOMERS NOR PAYMENTS FOR
SERVICE, WE MAY INFER A DIFFERENT PURPOSE IN THE TRANSACTIONS BETWEEN
PETITIONER AND THE COMMUNITY GROUPS.  THE CONTRIBUTIONS TO PETITIONER
WERE PROVIDED BY CITIZENS OF THE RESPECTIVE COMMUNITIES WHO NEITHER
SOUGHT NOR COULD HAVE ANTICIPATED ANY DIRECT SERVICE OR RECOMPENSE
WHATEVER, THEIR ONLY EXPECTATION BEING THAT SUCH CONTRIBUTIONS MIGHT
PROVE ADVANTAGEOUS TO THE COMMUNITY AT LARGE.  UNDER THESE
CIRCUMSTANCES THE TRANSFERS MANIFESTED A DEFINITE PURPOSE TO ENLARGE
THE WORKING CAPITAL OF THE COMPANY."  ID., AT 591. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF CLAIMS. 

[[DOP 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THIS CASE INVOLVES THE DEPRECIATION OF CERTAIN RAILROAD FACILITIES
CONSTRUCTED WITH PUBLIC FUNDS PRIOR TO JUNE 22, 1954.  THE PRECISE
QUESTION BEFORE THE COURT IS WHETHER THOSE FACILITIES CONSTITUTED
"CONTRIBUTIONS TO CAPITAL" WITHIN THE MEANING OF ^ 113(A) (8) (B) OF
THE INTERNAL REVENUE CODE OF 1939. 

BEGINNING IN THE EARLY 1930'S, VARIOUS STATE GOVERNMENTS ENTERED
INTO AGREEMENTS WITH THE RESPONDENT RAILROAD FOR THE CONSTRUCTION OF
HIGHWAY OVERPASSES AND UNDERPASSES AT HIGHWAY-RAILROAD INTERSECTIONS,
AND CONSTRUCTION OF GRADE-CROSSING PROTECTION EQUIPMENT SUCH AS
FLASHING-LIGHT SIGNALS AND AUTOMATIC GATES.  THE AGREEMENTS GENERALLY
PROVIDED THAT THE STATES WOULD PAY 50% AUTHORIZED THE FEDERAL
GOVERNMENT TO ASSUME THE STATE'S SHARE OF THE CONSTRUCTION COSTS.  SEE
NATIONAL INDUSTRIAL RECOVERY ACT SEC. 204(A), 48 STAT. 203.  UNDER THE
FEDERAL-AID HIGHWAY ACT OF 1944, SEC. 5, 58 STAT. 840, THE FEDERAL
GOVERNMENT REIMBURSED THE STATES FOR THE ENTIRE COST OF THE HIGHWAY
RAILROAD CROSSING PROJECTS, SUBJECT TO PAYMENT BY THE RAILROADS FOR UP
TO 10% OF THE COST OF THE PROJECT IF THE RAILROADS WERE BENEFITED BY
THE FACILITIES. 

THE RESPONDENT FILED SUIT IN THE COURT OF CLAIMS SEEKING A REFUND ON
ITS 1955 INCOME TAXES, CLAIMING THAT THE COMMISSIONER OF INTERNAL
REVENUE HAD ERRED BY REFUSING TO ALLOW A DEPRECIATION DEDUCTION FOR
THESE PUBLICLY CONTRIBUTED FACILITES.  THE RESPONDENT ASSERTED THAT
THESE FACILITIES WERE "DEPRECIABLE PROPERTY" HELD THROUGHOUT 1955 "FOR
USE IN ITS TRADE OR BUSINESS," AND THAT THEY WERE ACQUIRED PRIOR TO
JUNE 22, 1954, AS "CONTRIBUTIONS TO CAPITAL." 

THE RESPONDENT'S CLAIM WAS AN UNCOMPLICATED ONE.  SECTION 167 OF THE
INTERNAL REVENUE CODE OF 1954, 26 U.S.C. ^ 167, APPLICABLE TO THE
RESPONDENT'S 1955 INCOME TAX RETURN, ALLOWED AS A DEPRECIATION
DEDUCTION "A REASONABLE ALLOWANCE FOR THE EXHAUSTION, WEAR AND TEAR
(INCLUDING A REASONABLE ALLOWANCE FOR OBSOLESCENCE) -- (1) OF PROPERTY
USED IN THE TRADE OR BUSINESS . . ."  SECTION 1052(C) OF THE 1954 CODE,
26 U.S.C. ^ 1052(C), PROVIDED FOR USING THE BASIS RULES OF THE 1939
CODE FOR CERTAIN PROPERTY THAT WAS ACQUIRED IN TRANSACTIONS TO WHICH
THE 1939 CODE APPLIED, INCLUDING "CONTRIBUTIONS TO CAPITAL."  /1/  THE
RESPONDENT CONTENDED THAT THE PUBLICLY CONTRIBUTED FACILITIES WERE
"CONTRIBUTIONS TO CAPITAL," AND THAT UNDER ^ 113(A) (8) (B) OF THE 1939
CODE, IT COULD CARRY OVER THE TRANSFEROR'S BASIS; IN SHORT, IT CLAIMED
THAT ITS BASIS FOR THE HIGHWAY-SAFETY FACILITIES WAS THE COST OF THE
FACILITIES TO THE GOVERNMENTS THAT HAD FINANCED THEM.  /2/ 

THE COURT OF CLAIMS AGREED WITH THE RESPONDENT THAT THESE FACILITIES
WERE EXHAUSTIBLE ASSETS PROPERLY DEPRECIABLE TO THE FULL EXTENT OF
THEIR VALUE.  197 CT. CL. 264, 276, 455 F.2D 993, 1002.  THE
DEPRECIABLE NATURE OF THE FACILITIES WAS UNDISPUTED, SINCE THE
GOVERNMENT CONCEDED THAT "THE FACILITES ARE OF A CHARACTER NORMALLY
SUBJECT TO ALLOWANCE FOR DEPRECIATION AND THAT TO THE EXTENT THEY WERE
PAID FOR BY THE RESPONDENT, APPROPRIATE DEPRECIATION DEDUCTIONS ARE
PROPER."  ID., AT 273 - 274, 455 F.2D, AT 999.  THE COURT CONCLUDED
THAT THE FACILITIES WERE "CONTRIBUTIONS TO CAPITAL" UNDER ^ 113 (A) (8)
(B) OF THE 1939 CODE AND THAT THE GOVERNMENT'S COST BASIS IN THE
FACILITIES WAS, THEREFORE, AVAILABLE TO THE RESPONDENT.  /3/  "THE
FACILITIES WERE CONSTRUCTED PRIMARILY FOR THE BENEFIT OF THE PUBLIC TO
IMPROVE SAFETY AND TO EXPEDITE MOTORVEHICLE TRAFFIC FLOW.  THE RECORD
SHOWS, HOWEVER, THAT THE RESPONDENT RECEIVED ECONOMIC BENEFITS FROM THE
FACILITIES, E. G., PROBABLE LOWER ACCIDENT RATES, REDUCED EXPENSES OF
OPERATING CROSSING EQUIPMENT AND, WHERE PERMITTED, HIGHER TRAIN SPEED
LIMITS.  THE RESPONDENT ALSO RECEIVED INTANGIBLE BENEFITS, E.G.,
GOODWILL FROM THE COMMUNITY-AT-LARGE, WHICH WAS TO THE RESPONDENT'S
LONG-TERM ECONOMIC ADVANTAGE."  ID., AT 272, 455 F.2D, AT 998.  /4/
THE COURT THUS CONCLUDED "THAT THE FACILITIES ENLARGED THE RESPONDENT'S
WORKING CAPITAL AND WERE USED BY THE RESPONDENT IN ITS BUSINESS; AND
THOUGH THEY MAY NOT PRODUCE INCOME TO THE SAME EXTENT AS OTHER RAILROAD
PROPERTY, SUCH AS TRACK OR FREIGHT CARS, THE RESPONDENT DERIVED
ECONOMIC BENEFITS FROM THEM."  ID., AT 276, 455 F.2D, AT 1000. 

I THINK THE COURT OF CLAIMS WAS ENTIRELY RIGHT IN HOLDING THAT THESE
PUBLICLY CONTRIBUTED FACILITIES CONSTITUTED CONTRIBUTIONS TO CAPITAL
WITHIN THE MEANING OF ^ 113(A) (8) (B) OF THE 1939 CODE.  /5/  THE
FACILITIES AT ISSUE FALL WITHIN THE PLAIN LANGUAGE OF A "CONTRIBUTION
TO CAPITAL."  AS THE COURT NOTED, THEY WERE "CONTRIBUTED"  TO THE
RESPONDENT IN THE SENSE THAT THE RAILROAD NOW OWNS THEM.  AND THEY ARE
NOW PART OF THE "CAPITAL" OF THE RAILROAD AS THAT TERM IS GENERALLY
USED IN BUSINESS AND ACCOUNTING PRACTICE, PART OF THE PERMANENT
INVESTMENT IN THE BUSINESS.  SEE BROWN SHOE CO. V. COMMISSIONER, 339
U.S. 583, 589 AND N. 11; TEXAS & PACIFIC R. CO. V. UNITED STATES, 286
U.S. 285; EDWARDS V. CUBA R. CO., 268 U.S. 628, 631 - 633; H. GUTHMANN
& H. DOUGALL, CORPORATE FINANCIAL POLICY 136 - 138 (4TH ED.); R.
MARPLE, CAPITAL SURPLUS AND CORPORATE NET WORTH 136 - 137; I. J.
MERTENS, LAW OF FEDERAL INCOME TAXATION ^ 5.06 N. 47 (J. MALONE REV.
ED.); HARVEY, SOME INDICIA OF CAPITAL TRANSFERS UNDER THE FEDERAL
INCOME TAX LAWS, 37 MICH. L. REV. 745, 747 - 749.  /6/ 

THE ONLY TWO PRIOR DECISIONS OF THIS COURT THAT BEAR DIRECTLY ON THE
QUESTION BEFORE US -- DETROIT EDISON CO. V. COMMISSIONER, 319 U.S. 98,
AND BROWN SHOE CO. V. COMMISSIONER, SUPRA -- CONFIRM THAT THESE
PUBLICLY CONTRIBUTED FACILTIES ARE CONTRIBUTIONS TO THE RESPONDENT'S
CAPITAL. 

IN DETROIT EDISON CO. V. COMMISSIONER, SUPRA, PROSPECTIVE CUSTOMERS
OF AN ELECTRIC COMPANY WERE REQUIRED TO PAY FOR THE CONSTRUCTION OF
ADDITIONAL FACILITIES IN ORDER TO RECEIVE THE COMPANY'S SERVICES.  THE
COURT REJECTED THE CONTENTION THAT THOSE PAYMENTS WERE CONTRIBUTIONS TO
CAPITAL:  "IT OVERTAXES IMAGINATION TO REGARD THE FARMERS AND OTHER
CUSTOMERS WHO FURNISHED THESE FUNDS AS MAKERS EITHER OF DONATIONS OR
CONTRIBUTIONS TO THE COMPANY.  . .  THE PAYMENTS WERE TO THE CUSTOMER
THE PRICE OF THE SERVICE."  ID., AT 102 - 103. 

IN BROWN SHOE, SUPRA, VARIOUS COMMUNITY GROUPS CONTRIBUTED CASH AND
PROPERTY TO THE TAXPAYER CORPORATION TO INDUCE IT TO LOCATE IN OR
EXPAND ITS OPERATIONS IN THE RESPECTIVE COMMUNITIES.  THE COURT HELD
THESE ASSETS TO BE "CONTRIBUTIONS TO CAPITAL" WITHIN THE MEANING OF ^
113(A) (8) (B), STRESSING THE FACT THAT THEY WERE IN A VERY PRACTICAL
SENSE AN ADDITION TO THE CORPORATION'S CAPITAL:  "'THE ASSETS RECEIVED
. . . ARE BEING USED BY THE TAXPAYER IN THE OPERATION OF ITS BUSINESS. 
THEY WILL IN TIME WEAR OUT, AND IF THE TAXPAYER IS TO CONTINUE IN
BUSINESS, THE PHYSICAL PLANT MUST EVENTUALLY BE REPLACED.  LOOKING AS
THEY DO TOWARD BUSINESS CONTINUITY, THE INTERNAL REVENUE CODE'S
DEPRECIATION PROVISIONS -- AND ESPECIALLY THOSE WHICH PROVIDE FOR A
SUBSTITUTED RATHER THAN A COST BASIS -- WOULD SEEM TO ENVISION
ALLOWANCE OF A DEPRECIATION DEDUCTION IN STIUATIONS LIKE THIS.  . .'" 
ID., AT 590 (QUOTING COMMISSIONER V. MCKAY PRODUCTS CORP., 178 F.2D
639, 643).  THE COURT EXPLAINED DETROIT EDISON AS A CASE OF PAYMENTS
FOR SERVICES RATHER THAN CONTRIBUTIONS TO CAPITAL.  BY CONTRAST, IN
BROWN SHOE, "THE CONTRIBUTIONS TO THE TAXPAYER WERE NEITHER SOUGHT NOR
COULD HAVE ANTICIPATED ANY DIRECT SERVICE OR RECOMPENSE WHATEVER, THEIR
ONLY EXPECTATION BEING THAT SUCH CONTRIBUTIONS MIGHT PROVE ADVANTAGEOUS
TO THE COMMUNITY AT LARGE."  ID., AT 591.  /7/ 

IT SEEMS PLAIN TO ME THAT THE PRESENT CASE IS CONTROLLED BY BROWN
SHOE.  AS IN THAT CASE, THESE PUBLICLY CONTRIBUTED FACILITIES WERE IN
NO SENSE DIRECT PAYMENTS FOR SERVICES.  THE STATE AND FEDERAL
GOVERNMENTS DID NOT PURCHASE ANY SERVICES IN CONNECTION WITH
CONSTRUCTION OF THE FACILITIES.  RATHER, TO ACHIEVE THE PUBLIC GOAL OF
TRANSPORTATION SAFETY THEY TRANSFERRED ASSETS TO THE RAILROAD WHICH
INCREASED ITS WORKING CAPITAL.  IN SHORT, THESE ASSETS FELL WITHIN THE
PRACTICAL, WORKING DEFINITION OF "CONTRIBUTIONS TO CAPITAL" THAT WAS
RECOGNIZED BY THE COURT IN BROWN SHOE, AND THEY DID NOT FALL WITHIN THE
NARROW EXCEPTION OF PAYMENTS FOR SERVICES THAT THE COURT FOUND
SIGNIFICANT IN DETROIT EDISON. 

THE GOVERNMENT URGES US TO READ BROWN SHOE AS HOLDING THAT, IN ORDER
TO ESTABLISH A "CONTRIBUTION TO CAPITAL," A TAXPAYER MUST PROVE THAT
THE TRANSFEROR OF THE ASSET HAD A DEFINITE PURPOSE TO ENLARGE THE
TAXPAYER'S WORKING CAPITAL.  BUT THAT CASE DID NOT TURN ON THE PRESENCE
OF ANY SUCH SPECIFIC PURPOSE.  THE PURPOSE OF THE COMMUNITY
CONTRIBUTIONS IN BROWN SHOE WAS TO INDUCE THE TAXPAYER TO LOCATE OR
EXPAND ITS OPERATIONS IN THE LOCAL AREA, AND THIS PURPOSE WAS
ACCOMPLISHED BY CONTRIBUTING ASSETS; THERE WAS NO GRATUITOUS ATTEMPT TO
ENLARGE THE TAXPAYER'S CAPITAL.  THE COURT NOTED IN PASSING THE
EXISTENCE OF A PURPOSE TO ENLARGE THE TAXPAYER'S WORKING CAPITAL ONLY
IN ORDER TO UNDERLINE THE FACT THAT THE COMMUNITY GROUPS THERE WERE NOT
CUSTOMERS PAYING COMPENSATION FOR SERVICES RENDERED.  AND, AS IN BROWN
SHOE, THE STATE AND FEDERAL GOVERNMENTS HERE ATTEMPTED TO ACCOMPLISH A
GENERAL PUBLIC GOAL BY CONTRIBUTING FACILITIES TO THE TAXPAYER.  AS IN
BROWN SHOE, THEY WERE NOT PAYING FOR SERVICES. 

THE COURT TODAY, HOWEVER, DOES NOT APPEAR TO DECIDE THIS CASE ON THE
PRESENCE OR ABSENCE OF ANY SPECIFIC MOTIVE, INTENT, OR PURPOSE. 
RATHER, THE COURT CONSTRUCTS A SERIES OF GUIDELINES THAT MUST BE MET
BEFORE THERE CAN BE A "CONTRIBUTION TO CAPITAL."  THESE GUIDELINES SEEM
TO BE BASED UPON THE VALUE OF THE ASSETS TO THE TRANSFEREE.  FOR THE
COURT RELIES PRIMARILY ON THE FACT THAT THE PUBLICLY FINANCED
FACILITIES WERE "PERIPHERAL" TO THE RAILROAD'S BUSINESS AND DID NOT
MATERIALLY CONTRIBUTE TO THE PRODUCTION OF FURTHER INCOME, AND
CONCLUDES THAT THEY WERE NOT THEREFORE CONTRIBUTIONS TO THE RAILROAD'S
CAPITAL.  BUT THE COURT CITES NOTHING IN THE STATUTE, THE REGULATIONS,
OR OUR PRIOR CASES TO WARRANT THIS STRANGE DEFINITION OF "CAPITAL" WHEN
THAT TERM IS USED IN THE PHRASE "CONTRIBUTION TO CAPITAL."     BROWN
SHOE MADE CLEAR THAT "CAPITAL" WAS TO BE DEFINED "AS THAT TERM HAS
COMMONLY BEEN UNDERSTOOD IN BOTH BUSINESS AND ACCOUNTING PRACTICE.  .
."  339 U.S., AT 589.  THE FACILITIES IN THE PRESENT CASE MEET THAT
TEST.  THEY ARE CERTAINLY PART OF THE RESPONDENT'S CAPITAL UNDER ANY
TRADITIONAL UNDERSTANDING OF THAT TERM; THEY ARE ASSETS PERMANENTLY
INVESTED IN THE RAILROAD'S BUSINESS.  SEE SUPRA, AT 421.  INDEED, MANY
OF THESE FACILITIES ARE ESSENTIAL TO THE RAILROAD'S CONTINUED OPERATION
-- A RAILROAD BRIDGE, FOR EXAMPLE, IS AN OBVIOUS PHYSICAL NECESSITY IF
THE RAILROAD IS TO OPERATE.  ALL OF THE FACILITIES ENLARGED THE
RAILROAD'S WORKING CAPITAL, WERE USED IN ITS BUSINESS, AND YIELDED
TANGIBLE AND INTANGIBLE ECONOMIC BENEFITS TO THE RAILROAD.  AND THE
COURT EVEN APPEARS TO ACKNOWLEDGE THAT THESE ASSETS ARE "CAPITAL" IN
THE NORMAL SENSE OF THAT TERM, SINCE IT CONCEDES THAT THE PORTION OF
THE FACILITIES CONSTRUCTED BY THE RAILROAD WITH ITS OWN FUNDS IS
DEPRECIABLE.  /8/  I DO NOT UNDERSTAND WHY THAT PORTION OF THE SAME
ASSETS THAT WAS CONTRIBUTED TO THE RAILROAD IS NOT ALSO PART OF THE
RAILROAD'S CAPITAL.  I WOULD MAINTAIN THE STRAIGHTFORWARD APPROACH
TAKEN BY BROWN SHOE AND DETROIT EDISON -- NONSHAREHOLDER ADDITIONS TO
CAPITAL ARE "CONTRIBUTIONS TO CAPITAL" UNLESS THEY ARE DIRECT PAYMENTS
FOR SERVICES RENDERED. 

THE GOVERNMENT ARGUES THAT TO ALLOW THE RAILROAD TO CLAIM A
DEPRECIATION DEDUCTION ON THESE FACILITIES AS "CONTRIBUTIONS TO
CAPITAL" WOULD LEAD TO THE "ANOMALOUS" RESULT THAT ALTHOUGH THE
RAILROAD HAD INCURRED NO EXPENSE WITH RESPECT TO THE PUBLICLY FINANCED
FACILITIES, IT COULD NEVERTHELESS RECOUP THEIR COST.  BUT IF THIS IS AN
ANOMALY, IT IS THE SAME ANOMALY THAT EXISTED IN BROWN SHOE.  THE
TAXPAYER THERE HAD NOT PAID FOR THE PROPERTY CONTRIBUTED BY THE
COMMUNITY GROUPS, YET IT WAS ABLE TO CLAIM A FULL DEPRECIATION
DEDUCTION ON IT.  IN SHORT, THIS SO-CALLED ANOMALY IS THE INELUCTABLE
RESULT OF ^ 113(A) (8) (B) WHICH ALLOWED A CARRYOVER BASIS FOR
NONSHAREHOLDER CONTRIBUTIONS TO CAPITAL.  IT WAS CONGRESS THAT HAD
CREATED THE ANOMALY, AND IT WAS FOR CONGRESS TO CORRECT IT.  IN
ENACTING ^ 362(C) OF THE 1954 CODE, /9/  CONGRESS DID PRECISELY THAT. 
IT ELIMINATED ANY DEPRECIATION DEDUCTION FOR NONSHAREHOLDER
CONTRIBUTIONS TO CAPITAL BY PROVIDING A ZERO BASIS FOR SUCH TRANSFERS,
BUT IT DID SO ONLY FOR PROPERTY ACQUIRED ON OR AFTER JUNE 22, 1954. 

IN SUM, CONGRESS IN 1954 REWROTE THE TAX LAW SO AS TO OVERRULE BROWN
SHOE AND PROHIBIT DEPRECIATION TO BE TAKEN ON CONTRIBUTIONS TO CAPITAL
MADE BY NONSHAREHOLDERS ON OR AFTER JUNE 22, 1954.  /10/  AS IT NOW
TURNS OUT, CONGRESS COULD HAVE SAVED ITSELF THE TROUBLE.  FOR TODAY THE
COURT REWRITES THE LAW AND PROHIBITS DEPRECIATION TO BE TAKEN ON SUCH
ASSETS THE RAILROAD HAS OWNED SINCE THE 1930'S.  I WOULD FOLLOW THE LAW
AS CONGRESS WROTE IT AND AFFIRM THE JUDGMENT OF THE COURT OF CLAIMS. 

[[DFN 

/1/  THE BASIS PROVISION OF THE 1954 CODE, WHICH PROVIDES A ZERO
BASIS FOR NONSHAREHOLDER CONTRIBUTIONS TO CAPITAL, APPLIES ONLY TO
PROPERTY ACQUIRED ON OR AFTER JUNE 22, 1954.  26 U.S.C. ^ 362.  SEE N.
9, INFRA.  ALL THE PROPERTY AT ISSUE IN THE PRESENT CASE WAS ACQUIRED
BEFORE JUNE 22, 1954. 

/2/ SECTION 113(A) (8) PROVIDES IN PERTINENT PART:  "IF THE PROPERTY
WAS ACQUIRED AFTER DECEMBER 31, 1920, BY A CORPORATION --

       .          .          .          . 

"(B) AS PAID-IN SURPLUS OR AS A CONTRIBUTION TO CAPITAL, THEN THE
BASIS SHALL BE THE SAME AS IT WOULD BE IN THE HANDS OF THE TRANSFEROR,
INCREASED IN THE AMOUNT OF GAIN OR DECREASED IN THE AMOUNT OF LOSS
RECOGNIZED TO THE TRANSFEROR UPON SUCH TRANSFER UNDER THE LAW
APPLICABLE TO THE YEAR IN WHICH THE TRANSFER WAS MADE." 

/3/  IT WAS UNDISPUTED THAT THE FACILITIES HAD BEEN "CONTRIBUTED" TO
THE RESPONDENT BY THE STATES, "AND THIS IS TAKEN TO MEAN THAT THE
RESPONDENT OWNS THEM . . ."  197 CT. CL. 264, 272, 455 F.2D 993, 998. 

/4/  THE FINDINGS OF FACT OF THE TRIAL COMMISSIONER WHICH WERE
ACCEPTED BY THE COURT INDICATED AS FOLLOWS: 

"THE FACILITIES . . . WERE CONSTRUCTED PRIMARILY FOR THE BENEFIT OF
THE PUBLIC TO IMPROVE SAFETY AND TO EXPEDITE HIGHWAY TRAFFIC FLOW. 
(THE RESPONDENT), HOWEVER, RECEIVED BENEFITS FROM THE FACILITIES, AMONG
OTHERS, PROBABLE LOWER ACCIDENT RATES, REDUCED EXPENSES OF OPERATING
CROSSING FACILITIES, AND, WHERE PERMITTED, HIGHER TRAIN SPEED LIMITS,
ALL OF WHICH PERMITTED THE RESPONDENT TO FUNCTION MORE EFFICIENTLY AND
PRESUMABLY LESS EXPENSIVELY."  197 CT. CL., AT 326 - 327. 

/5/  THE GOVERNMENT HAS SUGGESTED AS AN ALTERNATIVE BASIS FOR
REVERSAL THAT THE RESPONDENT ENTERED INTO A "TERMS LETTER" AGREEMENT
WITH THE COMMISSIONER WHEREBY IT AGREED TO EXCLUDE CONTRIBUTED PROPERTY
FROM ITS DEPRECIATION BASE.  THE COURT DOES NOT REACH THIS CONTENTION. 
I AGREE WITH THE REASONING OF THE COURT OF CLAIMS IN HOLDING THAT THE
TERMS LETTER DID NOT BAR THE RESPONDENT FROM CLAIMING A DEPRECIATION
DEDUCTION ON CONTRIBUTED PROPERTY. 

/6/  THE TEXT OF ^ 113 INDICATES THAT THERE IS NO SIGNIFICANCE IN
THE FACT THAT THE STATE AND FEDERAL GOVERNMENTS ATTEMPTED HERE TO
ACHIEVE THE PUBLIC GOAL OF TRANSPORTATION SAFETY RATHER THAN SIMPLY TO
MAKE A GRATUITOUS TRANSFER TO THE RAILROAD.  FOR IF A DONATIVE PURPOSE
WERE REQUIRED FOR A "CONTRIBUTION TO CAPITAL" THEN THAT PROVISION WOULD
SIMPLY BE DUPLICATIVE OF ^ 113(A)(2) OF THE 1939 CODE WHICH ALLOWS A
CARRYOVER BASIS FOR GIFTS. 

AND SIMILARLY IT IS OF NO CONSEQUENCE THAT THE CONTRIBUTION WAS BY A
NONSHAREHOLDER, FOR A CONTRIBUTION BY A SHAREHOLDER WOULD HAVE A
CARRYOVER BASIS UNDER THE "PAID-IN SURPLUS" PROVISION OF ^ 113(A) (8)
(B).  SEE TREAS. REG. 111, ^ 29.113(A) (8) - 1. 

IN SHORT, A "CONTRIBUTION TO CAPITAL" IS ANY NONGRATUITOUS TRANSFER
TO A CORPORATION BY A NONSHAREHOLDER, SUCH AS IS INVOLVED IN THE
PRESENT CASE.  SEE FREEMAN & SPEILLER, TAX CONSEQUENCES OF SUBSIDIES TO
INDUCE BUSINESS LOCATION, 9 TAX L. REV. 255, 261. 

/7/  FEDERAL COURTS IN DISTINGUISHING BETWEEN BROWN SHOE AND DETROIT
EDISON HAVE RELIED ON THE FACT THAT DETROIT EDISON INVOLVED DIRECT
PAYMENTS BY CUSTOMERS FOR SERVICES.  SEE UNITED GROCERS, LTD. V. UNITED
STATES, 308 F.2D 634, 639 - 640; TELESERVICE CO. V. COMMISSIONER, 254
F.2D 105, 110 - 111.  SEE ALSO NOTE, TAXATION OF NONSHAREHOLDER
CONTRIBUTIONS TO CORPORATE CAPITAL, 82 HARV. L. REV. 619, 626 - 627. 

/8/  THERE IS NO DISPUTE THAT THE RAILROAD CAN CLAIM A DEPRECIATION
DEDUCTION FOR ITS 10% SHARE OF THE COST OF THE FACILITIES. 

/9/  SECTION 362 OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. ^
362, PROVIDES IN PERTINENT PART: 

"(A) PROPERTY ACQUIRED BY ISSUANCE OF STOCK OR AS PAID-IN SURPLUS. 

"IF PROPERTY WAS ACQUIRED ON OR AFTER JUNE 22, 1954, BY A
CORPORATION --

    .          .          .          . 

"(2) AS PAID-IN SURPLUS OR AS A CONTRIBUTION TO CAPITAL, THEN THE
BASIS SHALL BE THE SAME AS IT WOULD BE IN THE HANDS OF THE TRANSFEROR,
INCREASED IN THE AMOUNT OF GAIN RECOGNIZED TO THE TRANSFEROR ON SUCH
TRANSFER. 

        .          .          .          . 

"(C) SPECIAL RULE FOR CERTAIN CONTRIBUTIONS TO CAPITAL. 

"(1) PROPERTY OTHER THAN MONEY. 

NOTWITHSTANDING SUBSECTION (A) (2), IF PROPERTY OTHER THAN MONEY -- 

"(A) IS ACQUIRED BY A CORPORATION, ON OR AFTER JUNE 22, 1954, AS A
CONTRIBUTION TO CAPITAL, AND 

"(B) IS NOT CONTRIBUTED BY A SHAREHOLDER AS SUCH, "THEN THE BASIS OF
SUCH PROPERTY SHALL BE ZERO. 

"(2) MONEY. 

"NOTWITHSTANDING SUBSECTION (A) (2), IF MONEY -- 

"(A) IS RECEIVED BY A CORPORATION, ON OR AFTER JUNE 22, 1954, AS A
CONTRIBUTION TO CAPITAL, AND 

"(B) IS NOT CONTRIBUTED BY A SHAREHOLDER AS SUCH, "THEN THE BASIS OF
ANY PROPERTY ACQUIRED WITH SUCH MONEY DURING THE 12-MONTH PERIOD
BEGINNING ON THE DAY THE CONTRIBUTION IS RECEIVED SHALL BE REDUCED BY
THE AMOUNT OF SUCH CONTRIBUTION.  THE EXCESS (IF ANY) OF THE AMOUNT OF
SUCH CONTRIBUTION OVER THE AMOUNT OF THE REDUCTION UNDER THE PRECEDING
SENTENCE SHALL BE APPLIED TO THE REDUCTION (AS OF THE LAST DAY OF THE
PERIOD SPECIFIED IN THE PRECEDING SENTENCE) OF THE BASIS OF ANY OTHER
PROPERTY HELD BY THE TAXPAYER.  THE PARTICULAR PROPERTIES TO WHICH THE
REDUCTIONS REQUIRED BY THIS PARAGRAPH SHALL BE ALLOCATED SHALL BE
DETERMINED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OR HIS
DELEGATE." 

/10/  IT WAS EXPLICITLY RECOGNIZED THAT 26 U.S.C. ^ 362(C) WAS
ENACTED TO OVERCOME THE EFFECT OF BROWN SHOE.  H. R. REP. NO. 1337, 83D
CONG., 2D SESS., A128; S. REP. NO. 1622, 83D CONG., 2D SESS., 271 -
272; VETERANS FOUNDATION V. COMMISSIONER, 317 F.2D 456, 458. 

RICHARD B. STONE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY
GENERAL UGAST, MEYER ROTHWACKS, AND GRANT W. WIPRUD. 

RICHARD J. SCHREIBER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS RICHARD T. CUBBAGE. 
..END :







NORTHCROSS ET AL. V. BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS
ET AL., 412 U.S. 427 



       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATE COURT

           OF APPEALS FOR THE SIXTH CIRCUIT 

    NO. 72 - 1164.  DECIDED JUNE 4, 1973; CERTIORARI GRANTED;
VACATED AND REMANDED. 


    SINCE THE COURT OF APPEALS' DENIAL OF COSTS AND ATTORNEYS'

  FEES UNDER ^ 718 OF THE EMERGENCY SCHOOL AID ACT OF 1972 TO

  PETITIONERS, WHO WERE SUCCESSFUL IN LITIGATION AIMED AT

  DESEGREGATING MEMPHIS, TENNESSEE'S, PUBLIC SCHOOLS, WAS WITHOUT

  STATED REASONS, THIS COURT CANNOT DETERMINE WHETHER THE PROPER

  STANDARD, NEWMAN V. PIGGIE PARK ENTERPRISES, INC., 390 U.S. 400,

  WAS CORRECTLY APPLIED. 

PER CURIAM. 

THIS CASE PRESENTS THE QUESTION OF THE PROPRIETY, UNDER ^ 718 OF THE
EMERGENCY SCHOOL AID ACT OF 1972, 86 STAT. 369, OF A DENIAL OF COSTS
AND ATTORNEYS' FEES TO THE SUCCESSFUL PLAINTIFFS IN THIS LITIGATION
AIMED AT DESEGREGATING THE PUBLIC SCHOOLS OF MEMPHIS, TENNESSEE. 

[[HC427'(ORIGINAL DOCUMENT PAGE 427)'  SECTION 718, WHICH BECAME
EFFECTIVE ON JULY 1, 1972, PROVIDES THAT "(UPON THE ENTRY OF A FINAL
ORDER BY A COURT OF THE UNITED STATES AGAINST A LOCAL EDUCATIONAL
AGENCY, A STATE (OR ANY AGENCY THEREOF), OR THE UNITED STATES (OR ANY
AGENCY THEREOF)," IN ANY ACTION SEEKING TO REDRESS ILLEGAL OR
UNCONSTITUTIONAL DISCRIMINATION WITH RESPECT TO "ELEMENTARY AND
SECONDARY EDUCATION, THE COURT, IN ITS DISCRETION, UPON A FINDING THAT
THE PROCEEDINGS WERE NECESSARY TO BRING ABOUT COMPLIANCE, MAY ALLOW THE
PREVAILING PARTY, OTHER THAN THE UNITED STATES, A REASONABLE ATTORNEY'S
FEE AS PART OF THE COSTS."  IN THIS CASE, THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT DENIED PETITIONERS' MOTION FOR AN AWARD
OF COSTS AND ATTORNEYS' FEES.  THE COURT OF APPEALS DID NOT, HOWEVER,
STATE REASONS FOR THE DENIAL AND IT IS THEREFORE NOT POSSIBLE FOR THIS
COURT TO DETERMINE WHETHER THE COURT OF APPEALS APPLIED THE PROPER
STANDARD IN REACHING THIS RESULT.  /1/ 

[[HC428'(ORIGINAL DOCUMENT PAGE 428)' 

OF 1964, 78 STAT. 244, 42 U.S.C. ^ 2000A - 3(B), WHICH PROVIDES THAT,
IN AN ACTION SEEKING TO ENFORCE TITLE II OF THAT ACT, " THE COURT, IN
ITS DISCRETION, MAY ALLOW THE PREVAILING PARTY, OTHER THAN THE UNITED
STATES, A REASONABLE ATTORNEY'S FEE AS PART OF THE COSTS.  . ."  IN
NEWMAN V. PIGGIE PARK ENTERPRISES, INC., 390 U.S. 400 (1968), WE HELD
THAT, UNDER ^ 204(B), "ONE WHO SUCCEEDS IN OBTAINING AN INJUNCTION
UNDER THAT TITLE SHOULD ORDINARILY RECOVER AN ATTORNEY'S FEE UNLESS
SPECIAL CIRCUMSTANCES WOULD RENDER SUCH AN AWARD UNJUST."  ID., AT
402.  THE SIMILARITY OF LANGUAGE IN ^ 718 AND ^ 204(B) IS, OF COURSE, A
STRONG INDICATION THAT THE TWO STATUTES SHOULD BE INTERPRETED PARI
PASSU.  MOREOVER, "THE TWO PROVISIONS SHARE A COMMON RAISON D'ETRE. 
THE PLAINTIFFS IN SCHOOL CASES ARE 'PRIVATE ATTORNEYS GENERAL'
VINDICATING NATIONAL POLICY IN THE SAME SENSE AS ARE PLAINTIFFS IN
TITLE II ACTIONS.  THE ENACTMENT OF BOTH PROVISIONS WAS FOR THE SAME
PURPOSE -- ' TO ENCOURAGE INDIVIDUALS INJURED BY RACIAL DISCRIMINATION
TO SEEK JUDICIAL RELIEF . . .'"  JOHNSON V. COMBS, 471 F.2D 84, 86 (CA5
1972), QUOTING NEWMAN V. PIGGIE PARK ENTERPRISES, INC., SUPRA, AT 402. 
WE THEREFORE CONCLUDE THAT, AS WITH ^ 204(B), IF OTHER REQUIREMENTS OF
^ 718 ARE SATISFIED, THE SUCCESSFUL PLAINTIFF "SHOULD ORDINARILY
RECOVER AN ATTORNEY'S FEE UNLESS SPECIAL CIRCUMSTANCES WOULD RENDER
SUCH AN AWARD UNJUST."  390 U.S., AT 402.  SINCE IT IS IMPOSSIBLE FOR
US TO DETERMINE WHETHER THE COURT OF APPEALS APPLIED THIS STANDARD AND,
IF SO, WHETHER IT DID SO CORRECTLY, WE GRANT THE PETITION FOR
CERTIORARI, VACATE THE JUDGMENT BELOW INSOFAR AS IT RELATES TO THE
DENIAL OF COST AND ATTORNEYS' FEES, AND REMAND TO THE COURT OF APPEALS
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  /2/ 

[[HC429'(ORIGINAL DOCUMENT PAGE 429)'  SEE TAYLOR V. MCKEITHEN, 407
U.S. 191 (1972); CF. CALIFORNIA V. KRIVDA, 409 U.S. 33 (1972). 

/1/  RESPONDENTS SUGGEST THAT PETITIONERS' MOTION FOR COSTS AND
ATTORNEYS' FEES MIGHT HAVE BEEN DENIED DUE TO UNTIMELINESS.  ALTHOUGH
IT IS CLEAR THAT THE PETITIONS FOR REHEARING EN BANC WERE DENIED AS
UNTIMELY, THERE IS NO INDICATION THAT THE BILL OF COSTS WAS FILED OUT
OF TIME, OR THAT COSTS AND ATTORNEYS' FEES WERE DENIED FOR THAT
REASON. 

/2/  WE NEED NOT, AND THEREFORE DO NOT, DECIDE WHETHER ^ 718
AUTHORIZES AN AWARD OF ATTORNEYS' FEES INSOFAR AS THOSE EXPENSES WERE
INCURRED PRIOR TO THE DATE THAT THAT SECTION CAME INTO EFFECT.  WE ALSO
DO NOT DECIDE WHETHER, AND UNDER WHAT CIRCUMSTANCES, AN AWARD OF
ATTORNEYS' FEES IS PERMISSIBLE IN SUITS BROUGHT UNDER 42 U.S.C. ^ 1983
IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION FOR SUCH AN AWARD. 
SEE KNIGHT V. AUCIELLO, 453 F.2D 852 (CA1 1972); LEE V. SOUTHERN HOME
SITES CORP., 444 F.2D 143 (CA5 1971). 
..END :




















DOUGLAS V. BUDER, JUDGE, 412 U.S. 430 


       ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           MISSOURI 

     NO. 72 - 6198.  DECIDED JUNE 4, 1973; CERTIORARI GRANTED; 485

  S. W. 2D 609, REVERSED AND REMANDED. 


    PETITIONER, WHO HAD BEEN GIVEN A SUSPENDED SENTENCE FOR

  MANSLAUGHTER AND PLACED ON PROBATION FOR FOUR YEARS, WITH A

  CONDITION THAT "ALL ARRESTS FOR ANY REASON MUST BE REPORTED

  WITHOUT DELAY,"  WAS THEREAFTER INVOLVED IN AN AUTOMOBILE

  ACCIDENT IN ARKANSAS, FOR WHICH HE RECEIVED A TRAFFIC CITATION. 

  ELEVEN DAYS LATER, HE MENTIONED THE CITATION TO HIS PROBATION

  OFFICER, WHO NOTIFIED RESPONDENT JUDGE.  AT A HEARING, THE

  PROSECUTOR AND THE PROBATION OFFICER RECOMMENDED CONTINUED

  PROBATION BUT RESPONDENT, STATING THAT THE FAILURE TO REPORT THE

  ACCIDENT AND THE CITATION WAS NOT IN "STRICT COMPLIANCE WITH THE

  TERMS OF THE PROBATION," REVOKED PROBATION AND SENTENCED

  PETITIONER TO JAIL ON THE ORIGINAL COUNTS.  THE MISSOURI SUPREME

  COURT DENIED A WRIT OF PROHIBITION.  HELD:  THE ISSUANCE OF THE

  TRAFFIC CITATION WAS NOT AN "ARREST" UNDER EITHER MISSOURI OR

  ARKANSAS LAW, AND THE FINDING THAT PETITIONER HAD VIOLATED HIS

  PROBATION CONDITIONS WAS SO TOTALLY DEVOID OF EVIDENTIARY SUPPORT

  AS TO VIOLATE DUE PROCESS.  EVEN WERE IT CLEAR THAT RESPONDENT

  HELD MISSOURI LAW TO BE THAT A TRAFFIC CITATION IS THE EQUIVALENT

  OF AN ARREST, SUCH AN UNFORESEEABLE HOLDING, RETROACTIVELY

  APPLIED, WOULD ALSO DEPRIVE PETITIONER OF DUE PROCESS. 

PER CURIAM. 

IN NOVEMBER 1971, PETITIONER, A 50-YEAR-OLD TRUCK DRIVER WITH NO
PRIOR OFFENSES, PLEADED GUILTY TO TWO COUNTS OF MANSLAUGHTER AND WAS
GIVEN A SUSPENDED SENTENCE AND PLACED ON PROBATION FOR A PERIOD OF FOUR
YEARS BY THE RESPONDENT MISSOURI CIRCUIT COURT JUDGE. 

[[HC430'(ORIGINAL DOCUMENT PAGE 430)'  ONE OF THE CONDITIONS OF
PROBATION WAS THAT "(ALL ARRESTS FOR ANY REASON MUST BE REPORTED
WITHOUT DELAY TO (PETITIONER'S) PROBATION AND PAROLE OFFICER."  IN
JANUARY 1972, PETITIONER WAS INVOLVED IN A SEVEN-VEHICLE CHAIN-REACTION
ACCIDENT ON AN ARKANSAS HIGHWAY.  THE DRIVER OF THE FIRST VEHICLE WAS
ISSUED A TRAFFIC CITATION FOR FAILURE TO YIELD THE RIGHT OF WAY, AND
PETITIONER, ALONG WITH FOUR OTHER DRIVERS INVOLVED IN THE ACCIDENT, WAS
ISSUED A CITATION FOR DRIVING TOO FAST FOR EXISTING CONDITIONS. 

[[HC431'(ORIGINAL DOCUMENT PAGE 431)'  AT THE NEXT SCHEDULED MEETING
WITH HIS PROBATION OFFICER, 11 DAYS AFTER THE ACCIDENT, PETITIONER
MENTIONED THE ACCIDENT AND THE RECEIPT OF THE TRAFFIC CITATION.  ON THE
SAME DAY, THE PROBATION OFFICER REPORTED THIS INFORMATION TO RESPONDENT
WHO THEREUPON SCHEDULED A HEARING FOR THE PURPOSE OF DETERMINING
WHETHER PETITIONER'S PROBATION SHOULD BE REVOKED.  AT THE HEARING, BOTH
THE PROBATION OFFICER AND THE PROSECUTOR TOOK THE POSITION THAT
PETITIONER HAD NOT VIOLATED ANY OF THE CONDITIONS OF HIS PROBATION AND
BOTH RECOMMENDED THAT PROBATION BE CONTINUED.  NEVERTHELESS,
RESPONDENT, STATING THAT PETITIONER'S FAILURE TO REPORT THE ACCIDENT
AND THE TRAFFIC CITATION "DISPLAYED POOR ATTITUDE TOWARD HIS PROBATION"
AND WAS NOT IN "STRICT COMPLIANCE WITH THE TERMS OF THE PROBATION,"
REVOKED PROBATION AND SENTENCED PETITIONER TO CONCURRENT TERMS OF TWO
YEARS ON EACH OF THE ORIGINAL TWO COUNTS.  PETITIONER SOUGHT A WRIT OF
PROHIBITION IN THE MISSOURI SUPREME COURT, BUT THAT COURT, IN A 4 - 3
DECISION, CONCLUDED THAT RESPONDENT HAD NOT ABUSED HIS DISCRETION AND
THEREFORE DENIED RELIEF. 

THE APPARENT PREMISE UPON WHICH RESPONDENT PROCEEDED IN REVOKING
PETITIONER'S PROBATION WAS THAT PETITIONER HAD FAILED PROMPTLY TO
REPORT AN "ARREST."  BUT THE ISSUANCE OF THE TRAFFIC CITATION WAS NOT
AN "ARREST" UNDER EITHER MISSOURI OR ARKANSAS LAW.  BY STATUTE,
MISSOURI DEFINES AN "ARREST" AS "AN ACTUAL RESTRAINT OF THE PERSON OF
THE DEFENDANT, OR . . . SUBMISSION TO THE CUSTODY OF THE OFFICER, UNDER
AUTHORITY OF A WARRANT OR OTHERWISE."  MO. REV. STAT. ^ 544.180
(1953).  SIMILARLY, ARKANSAS DEFINES AN "ARREST" AS THE "PLACING OF THE
PERSON OF THE DEFENDANT IN RESTRAINT, OR . . . SUBMITTING TO THE
CUSTODY OF THE PERSON MAKING THE ARREST."  ARK. STAT. ANN. ^ 43 - 412
(1947). 

[[HC432'(ORIGINAL DOCUMENT PAGE 432)'  THE RECORD BEFORE US
DISCLOSES ABSOLUTELY NO EVIDENCE THAT PETITIONER WAS SUBJECTED TO AN
"ACTUAL RESTRAINT" OR TAKEN INTO "CUSTODY" AT THE SCENE OF THE ACCIDENT
OR ELSEWHERE.  CONSEQUENTLY, WE CONCLUDE THAT THE FINDING THAT
PETITIONER HAD VIOLATED THE CONDITIONS OF HIS PROBATION BY FAILING TO
REPORT "ALL ARRESTS . . . WITHOUT DELAY" WAS SO TOTALLY DEVOID OF
EVIDENTIARY SUPPORT AS TO BE INVALID UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  THOMPSON V. LOUISVILLE, 362 U.S. 199 (1960);
GARNER V. LOUISIANA, 368 U.S. 157 (1961). 

THE STATE ARGUES, HOWEVER, THAT THE REVOCATION OF PETITIONER'S
PROBATION SHOULD BE VIEWED AS A DETERMINATION BY RESPONDENT THAT, FOR
PURPOSES OF MISSOURI LAW, A TRAFFIC CITATION IS THE EQUIVALENT OF AN
ARREST EVEN THOUGH NOT ACCOMPANIED BY AN ACTUAL RESTRAINT.  BUT NEITHER
RESPONDENT NOR THE MISSOURI SUPREME COURT SPECIFICALLY MADE SUCH A
FINDING AND NO PRIOR MISSOURI DECISIONAL LAW IS CITED TO SUPPORT THE
CONTENTION THAT A TRAFFIC CITATION HAS EVER BEFORE BEEN TREATED AS THE
EQUIVALENT OF AN ARREST.  MOREOVER, EVEN IF IT WERE CLEAR THAT
RESPONDENT HAD DECLARED MISSOURI LAW TO BE THAT A TRAFFIC CITATION IS
THE EQUIVALENT OF AN ARREST, WE WOULD HAVE TO CONCLUDE THAT UNDER THE
RATIONALE OF BOUIS V. CITY OF COLUMBIA, 378 U.S. 347 (1964), THE
UNFORESEEABLE APPLICATION OF THAT INTERPRETATION IN THE CASE BEFORE US
DEPRIVED PETITIONER OF DUE PROCESS.  WE HELD IN BOUIS THAT "(WHEN . . .
(AN) UNFORESEEABLE STATE-COURT CONSTRUCTION OF A CRIMINAL STATUTE IS
APPLIED RETROACTIVELY TO SUBJECT A PERSON TO CRIMINAL LIABILITY FOR
PAST CONDUCT, THE EFFECT IS TO DEPRIVE HIM OF DUE PROCESS OF LAW IN THE
SENSE OF FAIR WARNING THAT HIS CONTEMPLATED CONDUCT CONSTITUTES A
CRIME."  ID., AT 354 - 355.  AND THAT SAME PRINCIPLE OF DUE PROCESS IS
FULLY APPLICABLE IN THE CONTEXT OF THE CASE BEFORE US. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED. 

[[HC433'(ORIGINAL DOCUMENT PAGE 433)'  THE JUDGMENT IS REVERSED AND
THE CAUSE IS REMANDED TO THE MISSOURI SUPREME COURT FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

[[DOP 

THE CHIEF JUSTICE AND MR. JUSTICE REHNQUIST CONCUR IN THE RESULT. 

[[DOP 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :

















COLUMBIA BROADCASTING V. DEMOCRATIC COMMITTEE 412 U.S. 94 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT 

NO. 71 - 863.  ARGUED OCTOBER 16, 1972--DECIDED MAY 29, 1973; 146
U.S. APP. D.C. 181, 450 F.2D 642, REVERSED.  TOGETHER WITH NOS. 71 -
864, FEDERAL CUMMUNICATIONS COMMISSION ET AL. V. BUSINESS EXECUTIVES'
MOVE FOR VIETNAM PEACE ET AL.; 71 - 865, POST-NEWSWEEK STATIONS,
CAPITAL AREA, INC. V. BUSINESS EXECUTIVES' MOVE FOR VIETNAM PEACE; AND
71 - 866, AMERICAN BROADCASTING COS., INC. V. DEMOCRATIC NATIONAL
COMMITTEE, ALSO ON CERTIORARI TO THE SAME COURT. 


    THE DEMOCRATIC NATIONAL COMMITTEE REQUESTED A DECLARATORY

  RULING FROM THE FEDERAL COMMUNICATIONS COMMISSION (FCC) THAT THE

  COMMUNICATIONS ACT OR THE FIRST AMENDMENT PRECLUDED A LICENSEE

  FROM HAVING A GENERAL POLICY OF REFUSING TO SEE TIME TO

  "RESPONSIBLE ENTITIES" TO PRESENT THEIR VIEWS ON PUBLIC ISSUES. 

  THE BUSINESS EXECUTIVES' MOVE FOR VIETNAM PEACE FILED A COMPLAIN

  WITH THE FCC, ALLEGING THAT A BROADCASTER HAD VIOLATED THE FIRST

  AMENDMENT BY REFUSING TO SELL IT TIME TO BROADCAST SPOT

  ANNOUNCEMENTS EXPRESSING THE GROUP'S VIEWS ON THE VIETNAM

  CONFLICT AND THAT THE STATION'S COVERAGE OF ANTIWAR VIEWS DID NOT

MEET THE REQUIREMENTS OF THE FAIRNESS DOCTRINE.  THE FCC REJECTED

  THE FAIRNESS DOCTRINE CHALLENGE AND RULED THAT A BROADCASTER WAS

  NOT PROHIBITED FROM HAVING A POLICY OF REFUSING TO ACCEPT PAID

  EDITORIAL ADVERTISEMENTS BY INDIVIDUALS AND ORGANIZATIONS LIKE

  RESPONDENTS.  THE COURT OF APPEALS REVERSED, HOLDING THAT "A FLAT

  BAN ON PAID PUBLIC ISSUE ANNOUNCEMENTS IS IN VIOLATION OF THE

  FIRST AMENDMENT, AT LEAST WHEN OTHER SORTS OF PAID ANNOUNCEMENTS

  ARE ACCEPTED," AND REMANDED THE CAUSES TO THE FCC TO DEVELOP

REGULATIONS GOVERNING WHICH, AND HOW MANY, EDITORIAL

ANNOUNCEMENTS WOULD BE AIRED.  HELD:  NEITHER THE COMMUNICATIONS

  ACT NOR THE FIRST AMENDMENT REQUIRES BROADCASTERS TO ACCEPT PAID

  EDITORIAL ADVERTISEMENTS.  PP. 101 - 114; 121 - 170. 

     MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT

  WITH RESPECT TO PARTS I, II, AND IV, FINDING THAT: 

     1. THE BASIC CRITERION GOVERNING USE OF BROADCAST FREQUENCIES

  IS THE RIGHT OF THE PUBLIC TO BE INFORMED; THE MANNER BY WHICH

  THIS INTEREST IS BEST SERVED IS DISPOSITIVE OF THE RESPONDENTS'

  STATUTORY AND FIRST AMENDMENT CONTENTIONS.  PP. 101 - 114. 

     (A) IN EVALUATING RESPONDENTS' CLAIMS, GREAT WEIGHT MUST BE

  AFFORDED THE DECISIONS OF CONGRESS AND THE EXPERIENCE OF THE

  FCC.  PP. 101 - 103. 

     (B) CONGRESS HAS CONSISTENTLY REJECTED EFFORTS TO IMPOSE ON

  BROADCASTERS A "COMMON CARRIER" RIGHT OF ACCESS FOR ALL PERSONS

  WISHING TO SPEAK OUT ON PUBLIC ISSUES.  INSTEAD, IT REPOSED IN

  THE FCC REGULATORY AUTHORITY BY WHICH THE FAIRNESS DOCTRINE WAS

  EVOLVED TO REQUIRE THAT THE BROADCASTER'S COVERAGE OF IMPORTANT

PUBLIC ISSUES MUST BE ADEQUATE AND MUST FAIRLY REFLECT DIFFERING

  VIEWPOINTS; THUS, NO PRIVATE INDIVIDUAL OR GROUP HAS A RIGHT TO

  COMMAND THE USE OF BROADCAST FACILITIES.  PP. 103 - 114. 

     2. THE "PUBLIC INTEREST" STANDARDS OF THE COMMUNICATIONS ACT,

  WHICH INCORPORATES FIRST AMENDMENT PRINCIPLES, DOES NOT REQUIRE

  BROADCASTERS TO ACCEPT EDITORIAL ADVERTISEMENTS.  PP. 121 - 131. 

     (A) THE FCC WAS JUSTIFIED IN CONCLUDING THAT THE PUBLIC

  INTEREST IN HAVING ACCESS TO THE MARKETPLACE OF "IDEAS AND

  EXPERIENCES" WOULD NOT BE SERVED BY ORDERING A RIGHT OF ACCESS TO

ADVERTISING TIME.  THERE IS SUBSTANTIAL RISK THAT SUCH A SYSTEM

  WOULD BE MONOPOLIZED BY THOSE WHO COULD AND WOULD PAY THE COSTS,

  THAT THE EFFECTIVE OPERATION OF THE FAIRNESS DOCTRINE ITSELF

  WOULD BE UNDERMINED, AND THAT THE PUBLIC ACCOUNTABILITY WHICH NOW

  RESTS WITH THE BROADCASTER WOULD BE DILUTED.  PP. 121 - 125. 

     (B) THE DIFFICULT PROBLEMS INVOLVED IN IMPLEMENTING AN
ABSOLUTE

  RIGHT OF ACCESS WOULD INEVITABLY IMPLICATE THE FCC IN A

  CASE-BY-CASE DETERMINATION OF WHO SHOULD BE HEARD AND WHEN, THUS

  ENLARGING THE INVOLVEMENT OF THE GOVERNMENT IN BROADCASTING

  OPERATIONS.  THE FCC COULD PROPERLY TAKE INTO ACCOUNT THE FACT

  THAT LISTENERS AND VIEWERS CONSTITUTE A KIND OF "CAPTIVE

  AUDIENCE" AND THAT THE PUBLIC INTEREST REQUIRES THAT A

  SUBSTANTIAL DEGREE OF JOURNALISTIC DISCRETION MUST REMAIN WITH

  BROADCASTERS.  PP. 126 - 130. 

     THE CHIEF JUSTICE, JOINED BY MR. JUSTICE STEWART AND MR.

  JUSTICE REHNQUIST, CONCLUDED, IN PART III, THAT A BROADCAST

  LICENSEE'S REFUSAL TO ACCEPT A PAID EDITORIAL ADVERTISEMENT DOES

  NOT CONSTITUTE "GOVERNMENTAL ACTION" FOR FIRST AMENDMENT

  PURPOSES.  THE GOVERNMENT IS NEITHER A "PARTNER" TO THE ACTION

  COMPLAINED OF NOR ENGAGED IN A "SYMBIOTIC RELATIONSHIP" WITH THE

  LICENSEE.  PP. 114 - 121. 

     (A) UNDER THE COMMUNICATIONS ACT A BROADCAST LICENSEE IS
VESTED

 WITH SUBSTANTIAL JOURNALISTIC DISCRETION IN DECIDING HOW TO MEET

  ITS STATUTORY OBLIGATIONS AS A "PUBLIC TRUSTEE."  PP. 114 - 117. 

     (B) THE LICENSEE'S POLICY AGAINST ACCEPTING EDITORIAL

  ADVERTISING IS COMPATIBLE WITH THE COMMUNICATIONS ACT AND WITH

  THE BROADCASTER'S OBLIGATION TO PROVIDE A BALANCED TREATMENT OF

  CONTROVERSIAL QUESTIONS.  PP. 118 - 121. 

     (C) THE FCC HAS NOT FOSTERED THE LICENSEE POLICY AGAINST

  ACCEPTING EDITORIAL ADVERTISEMENTS; IT HAS MERELY DECLINED TO

  COMMAND ACCEPTANCE BECAUSE THE SUBJECT WAS A MATTER WITHIN THE

  AREA OF JOURNALISTIC DISCRETION.  P. 118. 

BURGER, C. J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION OF THE COURT WITH RESPECT TO PARTS I, II, AND IV, IN WHICH
WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED AND IN WHICH AS TO
PARTS I, II, AND III STEWART AND REHNQUIST, JJ., JOINED.  STEWART, J.,
FILED AN OPINION CONCURRING IN PARTS I, II, AND III, POST, P. 132. 
WHITE, J., FILED AN OPINION CONCURRING IN PARTS I, II, AND IV, POST, P.
146.  BLACKMUN, J., FILED AN OPINION CONCURRING IN PARTS I, II, AND IV,
IN WHICH POWELL, J., JOINED, POST, P. 147.  DOUGLAS, J., FILED A
SEPARATE OPINION CONCURRING IN THE JUDGMENT, POST, P. 148.  BRENNAN,
J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED, POST, P.
170. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT (PARTS I,
II, AND IV) TOGETHER WITH AN OPINION (PART III), IN WHICH MR. JUSTICE
STEWART AND MR. JUSTICE REHNQUIST JOINED. 

WE GRANTED THE WRITS OF CERTIORARI IN THESE CASES TO CONSIDER WHETHER
A BROADCAST LICENSEE'S GENERAL POLICY OF NOT SELLING ADVERTISING TIME
TO INDIVIDUALS OR GROUPS WISHING TO SPEAK OUT ON ISSUES THEY CONSIDER
IMPORTANT VIOLATES THE FEDERAL COMMUNICATIONS ACT OF 1934, 48 STAT.
1064, AS AMENDED, 47 U.S.C. ^ 151 ET SEQ., OR THE FIRST AMENDMENT. 

IN TWO ORDERS ANNOUNCED THE SAME DAY, THE FEDERAL COMMUNICATIONS
COMMISSION RULED THAT A BROADCASTER WHO MEETS HIS PUBLIC OBLIGATION TO
PROVIDE FULL AND FAIR COVERAGE OF PUBLIC ISSUES IS NOT REQUIRED TO
ACCEPT EDITORIAL ADVERTISEMENTS.  DEMOCRATIC NATIONAL COMMITTEE, 25
F.C.C. 2D 216; BUSINESS EXECUTIVES' MOVE FOR VIETNAM PEACE, 25 F.C.C.
2D 242.  A DIVIDED COURT OF APPEALS REVERSED THE COMMISSION, HOLDING
THAT A BROADCASTER'S FIXED POLICY OF REFUSING EDITORIAL ADVERTISEMENTS
VIOLATES THE FIRST AMENDMENT; THE COURT REMANDED THE CASES TO THE
COMMISSION TO DEVELOP PROCEDURES AND GUIDELINES FOR ADMINISTERING A
FIRST AMENDMENT RIGHT OF ACCESS.  BUSINESS EXECUTIVES'  MOVE FOR
VIETNAM PEACE V. FCC, 146 U.S. APP. D.C. 181, 450 F. 2D 642 (1971). 

THE COMPLAINANTS IN THESE ACTIONS ARE THE DEMOCRATIC NATIONAL
COMMITTEE (DNC) AND THE BUSINESS EXECUTIVES' MOVE FOR VIETNAM PEACE
(BEM), A NATIONAL ORGANIZATION OF BUSINESSMEN OPPOSED TO UNITED STATES
INVOLVEMENT IN THE VIETNAM CONFLICT.  IN JANUARY 1970, BEM FILED A
COMPLAINT WITH THE COMMISSION CHARGING THAT RADIO STATION WTOP IN
WASHINGTON, D.C., HAD REFUSED TO SELL IT TIME TO BROADCAST A SERIES OF
ONE-MINUTE SPOT ANNOUNCEMENTS EXPRESSING BEM VIEWS ON VIETNAM.  WTOP,
IN COMMON WITH MANY, BUT NOT ALL, BROADCASTERS, FOLLOWED A POLICY OF
REFUSING TO SELL TIME FOR SPOT ANNOUNCEMENTS TO INDIVIDUALS AND GROUPS
WHO WISHED TO EXPOUND THEIR VIEWS ON CONTROVERSIAL ISSUES.  WTOP TOOK
THE POSITION THAT SINCE IT PRESENTED FULL AND FAIR COVERAGE OF
IMPORTANT PUBLIC QUESTIONS, INCLUDING THE VIETNAM CONFLICT, IT WAS
JUSTIFIED IN REFUSING TO ACCEPT EDITORIAL ADVERTISEMENTS.  WTOP ALSO
SUBMITTED EVIDENCE SHOWING THAT THE STATION HAD AIRED THE VIEWS OF
CRITICS OF OUR VIETNAM POLICY ON NUMEROUS OCCASIONS.  BEM CHALLENGED
THE FAIRNESS OF WTOP'S COVERAGE OF CRITICISM OF THAT POLICY, BUT IT
PRESENTED NO EVIDENCE IN SUPPORT OF THAT CLAIM. 

FOUR MONTHS LATER, IN MAY 1970, DNC FILED WITH THE COMMISSION A
REQUEST FOR A DECLARATORY RULING:

     "THAT UNDER THE FIRST AMENDMENT TO THE CONSTITUTION AND THE

  COMMUNICATIONS ACT, A BROADCASTER MAY NOT, AS A GENERAL POLICY,

  REFUSE TO SELL TIME TO RESPONSIBLE ENTITIES, SUCH AS THE DNC, FOR

  THE SOLICITATION OF FUNDS AND FOR COMMENT ON PUBLIC ISSUES." 

DNC CLAIMED THAT IT INTENDED TO PURCHASE TIME FROM RADIO AND TELEVISION
STATIONS AND FROM THE NATIONAL NETWORKS IN ORDER TO PRESENT THE VIEWS
OF THE DEMOCRATIC PARTY AND TO SOLICIT FUNDS.  UNLIKE BEM, DNC DID NOT
OBJECT TO THE POLICIES OF ANY PARTICULAR BROADCASTER BUT CLAIMED THAT
ITS PRIOR "EXPERIENCES IN THIS AREA MAKE IT CLEAR THAT IT WILL
ENCOUNTER CONSIDERABLE DIFFICULTY--IF NOT TOTAL FRUSTRATION OF ITS
EFFORTS--IN CARRYING OUT ITS PLANS IN THE EVENT THE COMMISSION SHOULD
DECLINE TO ISSUE A RULING AS REQUESTED."  DNC CITED RED LION
BROADCASTING CO. V. FCC, 395 U.S. 367 (1969), AS ESTABLISHING A LIMITED
CONSTITUTIONAL RIGHT OF ACCESS TO THE AIRWAVES. 

IN TWO SEPARATE OPINIONS, THE COMMISSION REJECTED RESPONDENTS'
CLAIMS THAT "RESPONSIBLE" INDIVIDUALS AND GROUPS HAVE A RIGHT TO
PURCHASE ADVERTISING TIME TO COMMENT ON PUBLIC ISSUES WITHOUT REGARD TO
WHETHER THE BROADCASTER HAS COMPLIED WITH THE FAIRNESS DOCTRINE.  THE
COMMISSION VIEWED THE ISSUE AS ONE OF MAJOR SIGNIFICANCE IN
ADMINISTERING THE REGULATORY SCHEME RELATING TO THE ELECTRONIC MEDIA,
ONE GOING "TO THE HEART OF THE SYSTEM OF BROADCASTING WHICH HAS
DEVELOPED IN THIS COUNTRY . . . ."  25 F.C.C. 2D, AT 221.  AFTER
REVIEWING THE LEGISLATIVE HISTORY OF THE COMMUNICATIONS ACT, THE
PROVISIONS OF THE ACT ITSELF, THE COMMISSION'S DECISIONS UNDER THE ACT
AND THE DIFFICULT PROBLEMS INHERENT IN ADMINISTERING A RIGHT OF ACCESS,
THE COMMISSION REJECTED THE DEMANDS OF BEM AND DNC. 

THE COMMISSION ALSO REJECTED BEM'S CLAIM THAT WTOP HAD VIOLATED THE
FAIRNESS DOCTRINE BY FAILING TO AIR VIEWS SUCH AS THOSE HELD BY MEMBERS
OF BEM; THE COMMISSION POINTED OUT THAT BEM HAD MADE ONLY A "GENERAL
ALLEGATION" OF UNFAIRNESS IN WTOP'S COVERAGE OF THE VIETNAM CONFLICT
AND THAT THE STATION HAD ADEQUATELY REBUTTED THE CHARGE BY AFFIDAVIT. 
THE COMMISSION DID, HOWEVER, UPHOLD DNC'S POSITION THAT THE STATUTE
RECOGNIZED A RIGHT OF POLITICAL PARTIES TO PURCHASE BROADCAST TIME FOR
THE PURPOSE OF SOLICITING FUNDS.  THE COMMISSION NOTED THAT CONGRESS
HAS ACCORDED SPECIAL CONSIDERATION FOR ACCESS BY POLITICAL PARTIES, SEE
47 U.S.C. ^ 315 (A), AND THAT SOLICITATION OF FUNDS BY POLITICAL
PARTIES IS BOTH FEASIBLE AND APPROPRIATE IN THE SHORT SPACE OF TIME
GENERALLY ALLOTTED TO SPOT ADVERTISEMENTS.  /1/ 

A MAJORITY OF THE COURT OF APPEALS REVERSED THE COMMISSION, HOLDING
THAT "A FLAT BAN ON PAID PUBLIC ISSUE ANNOUNCEMENTS IS IN VIOLATION OF
THE FIRST AMENDMENT, AT LEAST WHEN OTHER SORTS OF PAID ANNOUNCEMENTS
ARE ACCEPTED."  146 U.S. APP. D.C., AT 185, 450 F. 2D, AT 646. 
RECOGNIZING THAT THE BROADCAST FREQUENCIES ARE A SCARCE RESOURCE
INHERENTLY UNAVAILABLE TO ALL, THE COURT NEVERTHELESS CONCLUDED THAT
THE FIRST AMENDMENT MANDATED AN "ABRIDGEABLE" RIGHT TO PRESENT
EDITORIAL ADVERTISEMENTS.  THE COURT REASONED THAT A BROADCASTER'S
POLICY OF AIRING COMMERCIAL ADVERTISEMENTS BUT NOT EDITORIAL
ADVERTISEMENTS CONSTITUTES UNCONSTITUTIONAL DISCRIMINATION.  THE COURT
DID NOT, HOWEVER, ORDER THAT EITHER BEM'S OR DNC'S PROPOSED
ANNOUNCEMENTS MUST BE ACCEPTED BY THE BROADCASTERS; RATHER, IT REMANDED
THE CASES TO THE COMMISSION TO DEVELOP "REASONABLE PROCEDURES AND
REGULATIONS DETERMINING WHICH AND HOW MANY 'EDITORIAL ADVERTISEMENTS'
WILL BE PUT ON THE AIR."  IBID. 

JUDGE MCGOWAN DISSENTED; IN HIS VIEW, THE FIRST AMENDMENT DID NOT
COMPEL THE COMMISSION TO UNDERTAKE THE TASK ASSIGNED TO IT BY THE
MAJORITY: 

"IT IS PRESENTLY THE OBLIGATION OF A LICENSEE TO ADVANCE THE
PUBLIC'S RIGHT TO KNOW BY DEVOTING A SUBSTANTIAL AMOUNT OF TIME TO THE
PRESENTATION OF CONTROVERSIAL VIEWS ON ISSUES OF PUBLIC IMPORTANCE,
STRIKING A BALANCE WHICH IS ALWAYS SUBJECT TO REDRESS BY REFERENCE TO
THE FAIRNESS DOCTRINE.  FAILURE TO DO SO PUTS CONTINUATION OF THE
LICENSE AT RISK--A SANCTION OF TREMENDOUS POTENCY, AND ONE WHICH THE
COMMISSION IS UNDER INCREASING PRESSURE TO EMPLOY. 

 "THIS IS THE SYSTEM WHICH CONGRESS HAS, WISELY OR NOT, PROVIDED

  AS THE ALTERNATIVE TO PUBLIC OWNERSHIP AND OPERATION OF RADIO AND

  TELEVISION COMMUNICATIONS FACILITIES.  THIS APPROACH HAS NEVER

  BEEN THOUGHT TO BE OTHER THAN WITHIN THE PERMISSIBLE LIMITS OF

  CONSTITUTIONAL CHOICE."  146 U.S. APP. D.C., AT 205, 450 F. 2D,

  AT 666. 

JUDGE MCGOWAN CONCLUDED THAT THE COURT'S DECISION TO OVERRULE THE
COMMISSION AND TO REMAND FOR DEVELOPMENT AND IMPLEMENTATION OF A
CONSTITUTIONAL RIGHT OF ACCESS PUT THE COMMISSION IN A "CONSTITUTIONAL
STRAITJACKET" ON A HIGHLY COMPLEX AND FAR-REACHING ISSUE. 

        I 

MR. JUSTICE WHITE'S OPINION FOR THE COURT IN RED LION BROADCASTING
CO. V. FCC, 395 U.S. 367 (1969), MAKES CLEAR THAT THE BROADCAST MEDIA
POSE UNIQUE AND SPECIAL PROBLEMS NOT PRESENT IN THE TRADITIONAL FREE
SPEECH CASE.  UNLIKE OTHER MEDIA, BROADCASTING IS SUBJECT TO AN
INHERENT PHYSICAL LIMITATION.  BROADCAST FREQUENCIES ARE A SCARCE
RESOURCE; THEY MUST BE PORTIONED OUT AMONG APPLICANTS.  ALL WHO POSSESS
THE FINANCIAL RESOURCES AND THE DESIRE TO COMMUNICATE BY TELEVISION OR
RADIO CANNOT BE SATISFACTORILY ACCOMMODATED.  THE COURT SPOKE TO THIS
REALITY WHEN, IN RED LION, WE SAID "IT IS IDLE TO POSIT AN
UNABRIDGEABLE FIRST AMENDMENT RIGHT TO BROADCAST COMPARABLE TO THE
RIGHT OF EVERY INDIVIDUAL TO SPEAK, WRITE, OR PUBLISH."  RED LION,
SUPRA, AT 388. 

BECAUSE THE BROADCAST MEDIA UTILIZE A VALUABLE AND LIMITED PUBLIC
RESOURCE, THERE IS ALSO PRESENT AN UNUSUAL ORDER OF FIRST AMENDMENT
VALUES.  RED LION DISCUSSED AT LENGTH THE APPLICATION OF THE FIRST
AMENDMENT TO THE BROADCAST MEDIA.  IN ANALYZING THE BROADCASTERS' CLAIM
THAT THE FAIRNESS DOCTRINE AND TWO OF ITS COMPONENT RULES VIOLATED
THEIR FREEDOM OF EXPRESSION, WE HELD THAT "(NO ONE HAS A FIRST
AMENDMENT RIGHT TO A LICENSE OR TO MONOPOLIZE A RADIO FREQUENCY; TO
DENY A STATION LICENSE BECAUSE 'THE PUBLIC INTEREST' REQUIRES IT 'IS
NOT A DENIAL OF FREE SPEECH.'"  RED LION, SUPRA, AT 389.  ALTHOUGH THE
BROADCASTER IS NOT WITHOUT PROTECTION UNDER THE FIRST AMENDMENT, UNITED
STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131, 166 (1948), "(IT IS
THE RIGHT OF THE VIEWERS AND LISTENERS, NOT THE RIGHT OF THE
BROADCASTERS, WHICH IS PARAMOUNT.  . . . IT IS THE RIGHT OF THE PUBLIC
TO RECEIVE SUITABLE ACCESS TO SOCIAL, POLITICAL, ESTHETIC, MORAL, AND
OTHER IDEAS AND EXPERIENCES WHICH IS CRUCIAL HERE.  THAT RIGHT MAY NOT
CONSTITUTIONALLY BE ABRIDGED EITHER BY CONGRESS OR BY THE FCC."  RED
LION, SUPRA, AT 390. 

BALANCING THE VARIOUS FIRST AMENDMENT INTERESTS INVOLVED IN THE
BROADCAST MEDIA AND DETERMINING WHAT BEST SERVES THE PUBLIC'S RIGHT TO
BE INFORMED IS A TASK OF A GREAT DELICACY AND DIFFICULTY.  THE PROCESS
MUST NECESSARILY BE UNDERTAKEN WITHIN THE FRAMEWORK OF THE REGULATORY
SCHEME THAT HAS EVOLVED OVER THE COURSE OF THE PAST HALF CENTURY.  FOR,
DURING THAT TIME, CONGRESS AND ITS CHOSEN REGULATORY AGENCY HAVE
ESTABLISHED A DELICATELY BALANCED SYSTEM OF REGULATION INTENDED TO
SERVE THE INTERESTS OF ALL CONCERNED.  THE PROBLEMS OF REGULATION ARE
RENDERED MORE DIFFICULT BECAUSE THE BROADCAST INDUSTRY IS DYNAMIC IN
TERMS OF TECHNOLOGICAL CHANGE; SOLUTIONS ADEQUATE A DECADE AGO ARE NOT
NECESSARILY SO NOW, AND THOSE ACCEPTABLE TODAY MAY WELL BE OUTMODED 10
YEARS HENCE. 

THUS, IN EVALUATING THE FIRST AMENDMENT CLAIMS OF RESPONDENTS, WE
MUST AFFORD GREAT WEIGHT TO THE DECISIONS OF CONGRESS AND THE
EXPERIENCE OF THE COMMISSION.  PROFESSOR CHAFEE APTLY OBSERVED: 

"ONCE WE GET AWAY FROM THE BARE WORDS OF THE (FIRST) AMENDMENT, WE
MUST CONSTRUE IT AS PART OF A CONSTITUTION WHICH CREATES A GOVERNMENT
FOR THE PURPOSE OF PERFORMING SEVERAL VERY IMPORTANT TASKS.  THE
(FIRST) AMENDMENT SHOULD BE INTERPRETED SO AS NOT TO CRIPPLE THE
REGULAR WORK OF THE GOVERNMENT.  A PART OF THIS WORK IS THE REGULATION
OF INTERSTATE AND FOREIGN COMMERCE, AND THIS HAS COME IN OUR MODERN AGE
TO INCLUDE THE JOB OF PARCELING OUT THE AIR AMONG BROADCASTERS, WHICH
CONGRESS HAS ENTRUSTED TO THE FCC.  THEREFORE, EVERY FREE-SPEECH
PROBLEM IN THE RADIO HAS TO BE CONSIDERED WITH REFERENCE TO THE
SATISFACTORY PERFORMANCE OF THIS JOB AS WELL AS TO THE VALUE OF OPEN
DISCUSSION.  ALTHOUGH FREE SPEECH SHOULD WEIGH HEAVILY IN THE SCALE IN
THE EVENT OF CONFLICT, STILL THE COMMISSION SHOULD BE GIVEN AMPLE SCOPE
TO DO ITS JOB."  2 CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS 640 - 641
(1947).  THE JUDGMENT OF THE LEGISLATIVE BRANCH CANNOT BE IGNORED OR
UNDERVALUED SIMPLY BECAUSE ONE SEGMENT OF THE BROADCAST CONSTITUENCY
CASTS ITS CLAIM UNDER THE UMBRELLA OF THE FIRST AMENDMENT.  THAT IS NOT
TO SAY WE "DEFER" TO THE JUDGMENT OF THE CONGRESS AND THE COMMISSION ON
A CONSTITUTIONAL QUESTION, OR THAT WE WOULD HESITATE TO INVOKE THE
CONSTITUTION SHOULD WE DETERMINE THAT THE COMMISSION HAS NOT FULFILLED
ITS TASK WITH APPROPRIATE SENSITIVITY TO THE INTERESTS IN FREE
EXPRESSION.  THE POINT IS, RATHER, THAT WHEN WE FACE A COMPLEX PROBLEM
WITH MANY HARD QUESTIONS AND FEW EASY ANSWERS WE DO WELL TO PAY CAREFUL
ATTENTION TO HOW THE OTHER BRANCHES OF GOVERNMENT HAVE ADDRESSED THE
SAME PROBLEM.  THUS, BEFORE CONFRONTING THE SPECIAL LEGAL ISSUES IN
THESE CASES, WE TURN TO AN EXAMINATION OF THE LEGISLATIVE AND
ADMINISTRATIVE DEVELOPMENT OF OUR BROADCAST SYSTEM OVER THE LAST HALF
CENTURY. 

        II 

THIS COURT HAS ON NUMEROUS OCCASIONS RECOUNTED THE ORIGINS OF OUR
MODERN SYSTEM OF BROADCAST REGULATION.  SEE, E. G., RED LION, SUPRA, AT
375 - 386; NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190,
210 - 217 (1943); FCC V. SANDERS BROTHERS RADIO STATION, 309 U.S. 470,
474 (1940); FCC V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 137 - 138
(1940).  WE HAVE NOTED THAT PRIOR TO THE PASSAGE OF THE RADIO ACT OF
1927, 44 STAT. 1162, BROADCASTING WAS MARKED BY CHAOS.  THE UNREGULATED
AND BURGEONING PRIVATE USE OF THE NEW MEDIA IN THE 1920'S HAD RESULTED
IN AN INTOLERABLE SITUATION DEMANDING CONGRESSIONAL ACTION: 

"IT QUICKLY BECAME APPARENT THAT BROADCAST FREQUENCIES CONSTITUTED A
SCARCE RESOURCE WHOSE USE COULD BE REGULATED AND RATIONALIZED ONLY BY
THE GOVERNMENT.  WITHOUT GOVERNMENT CONTROL, THE MEDIUM WOULD BE OF
LITTLE USE BECAUSE OF THE CACAPHONY OF COMPETING VOICES, NONE OF WHICH
COULD BE CLEARLY AND PREDICTABLY HEARD."  RED LION, SUPRA, AT 376. 
BUT, ONCE IT WAS ACCEPTED THAT BROADCASTING WAS SUBJECT TO REGULATION,
CONGRESS WAS CONFRONTED WITH A MAJOR DILEMMA:  HOW TO STRIKE A PROPER
BALANCE BETWEEN PRIVATE AND PUBLIC CONTROL.  CF. FARMERS UNION V. WDAY,
360 U.S. 525, 528 (1959).     ONE OF THE EARLIEST AND MOST FREQUENTLY
QUOTED STATEMENTS OF THIS DILEMMA IS THAT OF HERBERT HOOVER, WHEN HE
WAS SECRETARY OF COMMERCE.  WHILE HIS DEPARTMENT WAS MAKING EXPLORATORY
ATTEMPTS TO DEAL WITH THE INFANT BROADCASTING INDUSTRY IN THE EARLY
1920'S, HE TESTIFIED BEFORE A HOUSE COMMITTEE: 

"WE CAN NOT ALLOW ANY SINGLE PERSON OR GROUP TO PLACE THEMSELVES IN
(A) POSITION WHERE THEY CAN CENSOR THE MATERIAL WHICH SHALL BE
BROADCASTED TO THE PUBLIC, NOR DO I BELIEVE THAT THE GOVERNMENT SHOULD
EVER BE PLACED IN THE POSITION OF CENSORING THIS MATERIAL."  HEARINGS
ON H. R. 7357 BEFORE THE HOUSE COMMITTEE ON THE MERCHANT MARINE AND
FISHERIES, 68TH CONG., 1ST SESS., 8 (1924).  THAT STATEMENT
FORESHADOWED THE "TIGHTROPE" ASPECTS OF GOVERNMENT REGULATION OF THE
BROADCAST MEDIA, A PROBLEM THE CONGRESS, THE COMMISSION, AND THE COURTS
HAVE STRUGGLED WITH EVER SINCE.  CONGRESS APPEARS TO HAVE CONCLUDED,
HOWEVER, THAT OF THESE TWO CHOICES--PRIVATE OR OFFICIAL CENSORSHIP-
GOVERNMENT CENSORSHIP WOULD BE THE MOST PERVASIVE, THE MOST SELF
SERVING, THE MOST DIFFICULT TO RESTRAIN AND HENCE THE ONCE MOST TO BE
AVOIDED. 

THE LEGISLATIVE HISTORY OF THE RADIO ACT OF 1927, THE MODEL FOR OUR
PRESENT STATUTORY SCHEME, SEE FCC V. POTTSVILLE BROADCASTING CO., 309
U.S., AT 137, REVEALS THAT IN THE AREA OF DISCUSSION OF PUBLIC ISSUES
CONGRESS CHOSE TO LEAVE BROAD JOURNALISTIC DISCRETION WITH THE
LICENSEE.  CONGRESS SPECIFICALLY DEALT WITH--AND FIRMLY REJECTED--THE
ARGUMENT THAT THE BROADCAST FACILITIES SHOULD BE OPEN ON A NONSELECTIVE
BASIS TO ALL PERSONS WISHING TO TALK ABOUT PUBLIC ISSUES.  SOME MEMBERS
OF CONGRESS--THOSE WHOSE VIEWS WERE ULTIMATELY REJECTED--STRENUOUSLY
OBJECTED TO THE UNREGULATED POWER OF BROADCASTERS TO REJECT
APPLICATIONS FOR SERVICE.  SEE, E. G., H. R. REP. NO. 404, 69TH CONG.,
1ST SESS., 18 (MINORITY REPORT).  THEY REGARDED THE EXERCISE OF SUCH
POWER TO BE "PRIVATE CENSORSHIP," WHICH SHOULD BE CONTROLLED BY
TREATING BROADCASTERS AS PUBLIC UTILITIES.  /2/  THE PROVISION THAT
CAME CLOSEST TO IMPOSING AN UNLIMITED RIGHT OF ACCESS TO BROADCAST TIME
WAS PART OF THE BILL REPORTED TO THE SENATE BY THE COMMITTEE ON
INTERSTATE COMMERCE.  THE BILL THAT EMERGED FROM THE COMMITTEE
CONTAINED THE FOLLOWING PROVISION: 

"(IF ANY LICENSEE SHALL PERMIT A BROADCASTING STATION TO BE USED . .
. BY A CANDIDATE OR CANDIDATES FOR ANY PUBLIC OFFICE, OR FOR THE
DISCUSSION OF ANY QUESTION AFFECTING THE PUBLIC, HE SHALL MAKE NO
DISCRIMINATION AS TO THE USE OF SUCH BROADCASTING STATION, AND WITH
RESPECT TO SAID MATTERS THE LICENSEE SHALL BE DEEMED A COMMON CARRIER
IN INTERSTATE COMMERCE:  PROVIDED, THAT SUCH LICENSEE SHALL HAVE NO
POWER TO CENSOR THE MATERIAL BROADCAST."  67 CONG. REC. 12503 (1926). 
WHEN THE BILL CAME TO THE SENATE FLOOR, THE PRINCIPAL ARCHITECT OF THE
RADIO ACT OF 1927, SENATOR DILL, OFFERED AN AMENDMENT TO THE PROVISION
TO ELIMINATE THE COMMON CARRIER OBLIGATION AND TO RESTRICT THE RIGHT OF
ACCESS TO CANDIDATES FOR PUBLIC OFFICE.  SENATOR DILL EXPLAINED THE
NEED FOR THE AMENDMENT: 

"WHEN WE RECALL THAT BROADCASTING TODAY IS PURELY VOLUNTARY, AND THE
LISTENER-IN PAYS NOTHING FOR IT, THAT THE BROADCASTER GIVES IT FOR THE
PURPOSE OF BUILDING UP HIS REPUTATION, IT SEEMED UNWISE TO PUT THE
BROADCASTER UNDER THE HAMPERING CONTROL OF BEING A COMMON CARRIER AND
COMPELLED TO ACCEPT ANYTHING AND EVERYTHING THAT WAS OFFERED HIM SO
LONG AS THE PRICE WAS PAID."  67 CONG. REC. 12502.  THE SENATORS WERE
ALSO SENSITIVE TO THE PROBLEMS INVOLVED IN LEGISLATING "EQUAL
OPPORTUNITIES" WITH RESPECT TO THE DISCUSSION OF PUBLIC ISSUES. 
SENATOR DILL STATED: 

"('PUBLIC QUESTIONS') IS SUCH A GENERAL TERM THAT THERE IS PROBABLY
NO QUESTION OF A-Y INTEREST WHATSOEVER THAT COULD BE DISCUSSED BUT THAT
THE OTHER SIDE OF IT COULD DEMAND TIME; AND THUS A RADIO STATION WOULD
BE PLACED IN THE POSITION THAT THE SENATOR FROM IOWA MENTIONS ABOUT
CANDIDATES, NAMELY, THAT THEY WOULD HAVE TO GIVE ALL THEIR TIME TO THAT
KIND OF DISCUSSION, OR NO PUBLIC QUESTION COULD BE DISCUSSED."  67
CONG. REC. 12504. 

THE SENATE ADOPTED SENATOR DILL'S AMENDMENT.  THE PROVISION FINALLY
ENACTED, ^ 18 OF THE RADIO ACT OF 1927, 44 STAT. 1170, WAS LATER RE
ENACTED AS ^ 315 (A) OF THE COMMUNICATIONS ACT OF 1934, /3/  BUT ONLY
AFTER CONGRESS REJECTED ANOTHER PROPOSAL THAT WOULD HAVE IMPOSED A
LIMITED OBLIGATION ON BROADCASTERS TO TURN OVER THEIR MICROPHONES TO
PERSONS WISHING TO SPEAK OUT ON CERTAIN PUBLIC ISSUES.  /4/  INSTEAD,
CONGRESS AFTER PROLONGED CONSIDERATION ADOPTED ^ 3 (H), WHICH
SPECIFICALLY PROVIDES THAT "A PERSON ENGAGED IN RADIO BROADCASTING
SHALL NOT INSOFAR AS SUCH PERSON IS SO ENGAGED, HE DEEMED A COMMON
CARRIER."  /5/ 

OTHER PROVISIONS OF THE 1934 ACT ALSO EVINCE A LEGISLATIVE DESIRE TO
PRESERVE VALUES OF PRIVATE JOURNALISM UNDER A REGULATORY SCHEME WHICH
WOULD INSURE FULFILLMENT OF CERTAIN PUBLIC OBLIGATIONS.  ALTHOUGH THE
COMMISSION WAS GIVEN THE AUTHORITY TO ISSUE RENEWABLE THREE-YEAR
LICENSES TO BROADCASTERS /6/  AND TO PROMULGATE RULES AND REGULATIONS
GOVERNING THE USE OF THOSE LICENSES, /7/  BOTH CONSISTENT WITH THE
"PUBLIC CONVENIENCE, INTEREST, OR NECESSITY," ^ 326 OF THE ACT
SPECIFICALLY PROVIDES THAT: 

     "NOTHING IN THIS CHAPTER SHALL BE UNDERSTOOD OR CONSTRUED TO

  GIVE THE COMMISSION THE POWER OF CENSORSHIP OVER THE RADIO

  COMMUNICATIONS OR SIGNALS TRANSMITTED BY ANY RADIO STATION, AND

  NO REGULATION OR CONDITION SHALL BE PROMULGATED OR FIXED BY THE

  COMMISSION WHICH SHALL INTERFERE WITH THE RIGHT OF FREE SPEECH BY

  MEANS OF RADIO COMMUNICATION."  47 U.S.C. ^ 326. 

FROM THESE PROVISIONS IT SEEMS CLEAR THAT CONGRESS INTENDED TO
PERMIT PRIVATE BROADCASTING TO DEVELOP WITH THE WIDEST JOURNALISTIC
FREEDOM CONSISTENT WITH ITS PUBLIC OBLIGATIONS.  ONLY WHEN THE
INTERESTS OF THE PUBLIC ARE FOUND TO OUTWEIGH THE PRIVATE JOURNALISTIC
INTERESTS OF THE BROADCASTERS WILL GOVERNMENT POWER BE ASSERTED WITHIN
THE FRAMEWORK OF THE ACT.  LICENSE RENEWAL PROCEEDINGS, IN WHICH THE
LISTENING PUBLIC CAN BE HEARD, ARE A PRINCIPAL MEANS OF SUCH
REGULATION.  SEE OFFICE OF COMMUNICATION OF THE UNITED CHURCH OF CHRIST
V. FCC, 123 U.S. APP. D.C. 328, 359 F. 2D 994 (1966), AND 138 U.S. APP.
D.C. 112, 425 F. 2D 543 (1969). 

SUBSEQUENT DEVELOPMENTS IN BROADCAST REGULATION ILLUSTRATE HOW THIS
REGULATORY SCHEME HAS EVOLVED.  OF PARTICULAR IMPORTANCE, IN LIGHT OF
CONGRESS' FLAT REFUSAL TO IMPOSE A "COMMON CARRIER" RIGHT OF ACCESS FOR
ALL PERSONS WISHING TO SPEAK OUT ON PUBLIC ISSIES, IS THE COMMISSION'S
"FAIRNESS DOCTRINE," WHICH EVOLVED GRADUALLY OVER THE YEARS SPANNING
FEDERAL REGULATION OF THE BROADCAST MEDIA.  /8/  FORMULATED UNDER THE
COMMISSION'S POWER TO ISSUE REGULATIONS CONSISTENT WITH THE "PUBLIC
INTEREST," THE DOCTRINE IMPOSES TWO AFFIRMATIVE RESPONSIBILITIES ON THE
BROADCASTER:  COVERAGE OF ISSUES OF PUBLIC IMPORTANCE MUST BE ADEQUATE
AND MUST FAIRLY REFLECT DIFFERING VIEWPOINTS, SEE RED LION, 395 U.S.,
AT 377.  IN FULFILLING THE FAIRNESS DOCTRINE OBLIGATIONS, THE
BROADCASTER MUST PROVIDE FREE TIME FOR THE PRESENTATION OF OPPOSING
VIEWS IF A PAID SPONSOR IS UNAVAILABLE, CULLMAN BROADCASTING CO., 25 P
& F RADIO REG. 895 (1963), AND MUST INITIATE PROGRAMMING ON PUBLIC
ISSUES IF NO ONE ELSE SEEKS TO DO SO.  SEE JOHN J. DEMPSEY, 6 P & F
RADIO REG. 615 (1950); RED LION, SUPRA, AT 378. 

SINCE IT IS PHYSICALLY IMPOSSIBLE TO PROVIDE TIME FOR ALL
VIEWPOINTS, HOWEVER, THE RIGHT TO EXERCISE EDITORIAL JUDGMENT WAS
GRANTED TO THE BROADCASTER.  THE BROADCASTER, THEREFORE, IS ALLOWED
SIGNIFICANT JOURNALISTIC DISCRETION IN DECIDING HOW BEST TO FULFILL THE
FAIRNESS DOCTRINE OBLIGATIONS, /9/  ALTHOUGH THAT DISCRETION IS BOUNDED
BY RULES DESIGNED TO ASSURE THAT THE PUBLIC INTEREST IN FAIRNESS IS
FURTHERED.  IN ITS DECISION IN THE INSTANT CASES, THE COMMISSION
DESCRIBED THE BOUNDARIES AS FOLLOWS: 

"THE MOST BASIC CONSIDERATION IN THIS RESPECT IS THAT THE LICENSEE
CANNOT RULE OFF THE AIR COVERAGE OF IMPORTANT ISSUES OR VIEWS BECAUSE
OF HIS PRIVATE ENDS OR BELIEFS.  AS A PUBLIC TRUSTEE, HE MUST PRESENT
REPRESENTATIVE COMMUNITY VIEWS AND VOICES ON CONTROVERSIAL ISSUES WHICH
ARE OF IMPORTANCE TO HIS LISTENERS.  . . . THIS MEANS ALSO THAT SOME OF
THE VOICES MUST BE PARTISAN.  A LICENSEE POLICY OF EXCLUDING PARTISAN
VOICES AND ALWAYS ITSELF PRESENTING VIEWS IN A BLAND, INOFFENSIVE
MANNER WOULD RUN COUNTER TO THE 'PROFOUND NATIONAL COMMITMENT THAT
DEBATE ON PUBLIC ISSUES SHOULD BE UNINHIBITED, ROBUST, AND WIDE-OPEN." 
NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 270 (1964); SEE ALSO RED
LION BROADCASTING CO., INC. V. F.C.C., 395 U.S. 367, 392 (N. 18) (1969)
. . . ."  25 F.C.C. 2D, AT 222 - 223. 

THUS, UNDER THE FAIRNESS DOCTRINE BROADCASTERS ARE RESPONSIBLE FOR
PROVIDING THE LISTENING AND VIEWING PUBLIC WITH ACCESS TO A BALANCED
PRESENTATION OF INFORMATION ON ISSUES OF PUBLIC IMPORTANCE.  /10/  THE
BASIC PRINCIPLE UNDERLYING THAT RESPONSIBILITY IS "THE RIGHT OF THE
PUBLIC TO BE INFORMED, RATHER THAN ANY RIGHT ON THE PART OF THE
GOVERNMENT, ANY BROADCAST LICENSEE OR ANY INDIVIDUAL MEMBER OF THE
PUBLIC TO BROADCAST HIS OWN PARTICULAR VIEWS ON ANY MATTER . . . ." 
REPORT ON EDITORIALIZING BY BROADCAST LICENSEES, 13 F.C.C. 1246, 1249
(1949).  CONSISTENT WITH THAT PHILOSOPHY, THE COMMISSION ON SEVERAL
OCCASIONS HAS RULED THAT NO PRIVATE INDIVIDUAL OR GROUP HAS A RIGHT TO
COMMAND THE USE OF BROADCAST FACILITIES.  /11/  SEE, E. G., DOWIE A.
CRITTENDEN, 18 F.C.C. 2D 499 (1969); MARGARET Z. SCHERBINA, 21 F.C.C.
2D 141 (1969); BOALT HALL STUDENT ASSN., 20 F.C.C. 2D 612 (1969);
MADALYN MURRAY, 40 F.C.C. 647 (1965); F.C.C. 2D 833 (1968); U.S.
BROADCASTING CORP., 2 F.C.C. 208 (1935).  CONGRESS HAS NOT YET SEEN FIT
TO ALTER THAT POLICY, ALTHOUGH SINCE 1934 IT HAS AMENDED THE ACT ON
SEVERAL OCCASIONS /12/  AND CONSIDERED VARIOUS PROPOSALS THAT WOULD
HAVE VESTED PRIVATE INDIVIDUALS WITH A RIGHT OF ACCESS.  /13/ 

WITH THIS BACKGROUND IN MIND, WE NEXT PROCEED TO CONSIDER WHETHER A
BROADCASTER'S REFUSAL TO ACCEPT EDITORIAL ADVERTISEMENTS IS
GOVERNMENTAL ACTION VIOLATIVE OF THE FIRST AMENDMENTS. 

III 

THAT "CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE FREEDOM OF
SPEECH, OR OF THE PRESS" IS A RESTRAINT ON GOVERNMENT ACTION, NOT THAT
OF PRIVATE PERSONS.  PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451,
461 (1952).  THE COURT HAS NOT PREVIOUSLY CONSIDERED WHETHER THE ACTION
OF A BROADCAST LICENSEE SUCH AS THAT CHALLENGED HERE IS "GOVERNMENTAL
ACTION" FOR PURPOSES OF THE FIRST AMENDMENT.  THE HOLDING UNDER REVIEW
THUS PRESENTS A NOVEL QUESTION, AND ONE WITH FAR-REACHING
IMPLICATIONS.  SEE L. JAFFE, THE EDITORIAL RESPONSIBILITY OF THE
BROADCASTER: REFLECTIONS ON FAIRNESS AND ACCESS, 85 HARV. L. REV. 768,
782 - 787 (1972). 

THE COURT OF APPEALS HELD THAT BROADCASTERS ARE INSTRUMENTALITIES OF
THE GOVERNMENT FOR FIRST AMENDMENT PURPOSES, RELYING ON THE THESIS,
FAMILIAR IN OTHER CONTEXTS, THAT BROADCAST LICENSEES ARE GRANTED USE OF
PART OF THE PUBLIC DOMAIN AND ARE REGULATED AS "PROXIES" OR
"'FIDUCIARIES' OF THE PEOPLE."  146 U.S. APP.D.C., AT 191, 450 F. 2D,
AT 652.  THESE CHARACTERIZATIONS ARE NOT WITHOUT VALIDITY FOR SOME
PURPOSES, BUT THEY DO NOT RESOLVE THE SENSITIVE CONSTITUTIONAL ISSUES
INHERENT IN DESCRIBING WHETHER A PARTICULAR LICENSEE ACTION IS SUBJECT
TO FIRST AMENDMENT RESTRAINTS.  /14/ 

IN DEALING WITH THE BROADCAST MEDIA, AS IN OTHER CONTEXTS, THE LINE
BETWEEN PRIVATE CONDUCT AND GOVERNMENTAL ACTION CANNOT BE DEFINED BY
REFERENCE TO ANY GENERAL FORMULA UNRELATED TO PARTICULAR EXERCISES OF
GOVERNMENTAL AUTHORITY.  WHEN GOVERNMENTAL ACTION IS ALLEGED THERE MUST
BE CAUTIOUS ANALYSIS OF THE QUALITY AND DEGREE OF GOVERNMENT
RELATIONSHIP TO THE PARTICULAR ACTS IN QUESTION.  "ONLY BY SIFTING
FACTS AND WEIGHING CIRCUMSTANCES CAN THE NONOBVIOUS INVOLVEMENT OF THE
STATE IN PRIVATE CONDUCT BE ATTRIBUTED ITS TRUE SIGNIFICANCE."  BURTON
V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715, 722 (1961). 

IN DECIDING WHETHER THE FIRST AMENDMENT ENCOMPASSES THE CONDUCT
CHALLENGED HERE, IT MUST BE KEPT IN MIND THAT WE ARE DEALING WITH A
VITAL PART OF OUR SYSTEM OF COMMUNICATION.  THE ELECTRONIC MEDIA HAVE
SWIFTLY BECOME A MAJOR FACTOR IN THE DISSEMINATION OF IDEAS AND
INFORMATION.  MORE THAN 7,000 LICENSED BROADCAST STATIONS UNDERTAKE TO
PERFORM THIS IMPORTANT FUNCTION.  TO A LARGE EXTENT THEY SHARE WITH THE
PRINTED MEDIA THE ROLE OF KEEPING PEOPLE INFORMED. 

AS WE HAVE SEEN, WITH THE ADVENT OF RADIO A HALF CENTURY AGO,
CONGRESS WAS FACED WITH A FUNDAMENTAL CHOICE BETWEEN TOTAL GOVERNMENT
OWNERSHIP AND CONTROL OF THE NEW MEDIUM--THE CHOICE OF MOST OTHER
COUNTRIES--OR SOME OTHER ALTERNATIVE.  LONG BEFORE THE IMPACT AND
POTENTIAL OF THE MEDIUM WAS REALIZED, CONGRESS OPTED FOR A SYSTEM OF
PRIVATE BROADCASTERS LICENSED AND REGULATED BY GOVERNMENT.  THE
LEGISLATIVE HISTORY SUGGESTS THAT THIS CHOICE WAS INFLUENCED NOT ONLY
BY TRADITIONAL ATTITUDES TOWARD PRIVATE ENTERPRISE, BUT BY A DESIRE TO
MAINTAIN FOR LICENSEES, SO FAR AS CONSISTENT WITH NECESSARY REGULATION,
A TRADITIONAL JOURNALISTIC ROLE.  THE HISTORIC AVERSION TO CENSORSHIP
LED CONGRESS TO ENACT ^ 326 OF THE ACT, WHICH EXPLICITLY PROHIBITS THE
COMMISSION FROM INTERFERING WITH THE EXERCISE OF FREE SPEECH OVER THE
BROADCAST FREQUENCIES.  CONGRESS POINTEDLY REFRAINED FROM DIVESTING
BROADCASTERS OF THEIR CONTROL OVER THE SELECTION OF VOICES; ^ 3 (H) OF
THE ACT STANDS AS A FIRM CONGRESSIONAL STATEMENT THAT BROADCAST
LICENSEES ARE NOT TO BE TREATED AS COMMON CARRIERS, OBLIGED TO ACCEPT
WHATEVER IS TENDERED BY MEMBERS OF THE PUBLIC.  BOTH THESE PROVISIONS
CLEARLY MANIFEST THE INTENTION OF CONGRESS TO MAINTAIN A SUBSTANTIAL
MEASURE OF JOURNALISTIC INDEPENDENCE FOR THE BROADCAST LICENSEE.  /15/ 
THE REGULATORY SCHEME EVOLVED SLOWLY, BUT VERY EARLY THE LICENSEE'S
ROLE DEVELOPED IN TERMS OF A "PUBLIC TRUSTEE" CHARGED WITH THE DUTY OF
FAIRLY AND IMPARTIALLY INFORMING THE LISTENING AND VIEWING PUBLIC.  IN
THIS STRUCTURE THE COMMISSION ACTS IN ESSENCE AS AN "OVERSEER," BUT THE
INITIAL AND PRIMARY RESPONSIBILITY FOR FAIRNESS, BALANCE, AND
OBJECTIVITY RESTS WITH THE LICENSEE.  THIS ROLE OF THE GOVERNMENT AS AN
"OVERSEER" AND ULTIMATE ARBITER AND GUARDIAN OF THE PUBLIC INTEREST AND
THE ROLE OF THE LICENSEE AS A JOURNALISTIC "FREE AGENT" CALL FOR A
DELICATE BALANCING OF COMPETING INTERESTS.  THE MAINTENANCE OF THIS
BALANCE FOR MORE THAN 40 YEARS HAS CALLED ON BOTH THE REGULATORS AND
THE LICENSEES TO WALK A "TIGHTROPE" TO PRESERVE THE FIRST AMENDMENT
VALUES WRITTEN INTO THE RADIO ACT AND ITS SUCCESSOR, THE COMMUNICATIONS
ACT. 

THE TENSIONS INHERENT IN SUCH A REGULATORY STRUCTURE EMERGE MORE
CLEARLY WHEN WE COMPARE A PRIVATE NEWSPAPER WITH A BROADCAST LICENSEE. 
THE POWER OF A PRIVATELY OWNED NEWSPAPER TO ADVANCE ITS OWN POLITICAL,
SOCIAL, AND ECONOMIC VIEWS IS BOUNDED BY ONLY TWO FACTORS:  FIRST, THE
ACCEPTANCE OF A SUFFICIENT NUMBER OF READERS--AND HENCE ADVERTISERS--TO
ASSURE FINANCIAL SUCCESS; AND, SECOND, THE JOURNALISTIC INTEGRITY OF
ITS EDITORS AND PUBLISHERS.  A BROADCAST LICENSEE HAS A LARGE MEASURE
OF JOURNALISTIC FREDDOM BUT NOT AS LARGE AS THAT EXERCISED BY A
NEWSPAPER.  A LICENSEE MUST BALANCE WHAT IT MIGHT PREFER TO DO AS A
PRIVATE ENTREPRENEUR WITH WHAT IT IS REQUIRED TO DO AS A "PUBLIC
TRUSTEE."  TO PERFORM ITS STATUTORY DUTIES, THE COMMISSION MUST OVERSEE
WITHOUT CENSORING.  THIS SUGGESTS SOMETHING OF THE DIFFICULTY AND
DELICACY OF ADMINISTERING THE COMMUNICATIONS ACT--A FUNCTION CALLING
FOR FLEXIBILITY AND THE CAPACITY TO ADJUST AND READJUST THE REGULATORY
MECHANISM TO MEET CHANGING PROBLEMS AND NEEDS. 

THE LICENSEE POLICY CHALLENGED IN THIS CASE IS INTIMATELY RELATED TO
THE JOURNALISTIC ROLE OF A LICENSEE FOR WHICH IT HAS BEEN GIVEN INITIAL
AND PRIMARY RESPONSIBILITY BY CONGRESS.  THE LICENSEE'S POLICY AGAINST
ACCEPTING EDITORIAL ADVERTISING CANNOT BE EXAMINED AS AN ABSTRACT
PROPOSITION, BUT MUST BE VIEWED IN THE CONTEXT OF ITS JOURNALISTIC
ROLE.  IT DOES NOT HELP TO PRESS ON US THE IDEA THAT EDITORIAL ADS ARE
"LIKE" COMMERCIAL ADS, FOR THE LICENSEE'S POLICY AGAINST EDITORIAL SPOT
ADS IS EXPRESSLY BASED ON A JOURNALISTIC JUDGMENT THAT 10- TO 60-SECOND
SPOT ANNOUNCEMENTS ARE ILL-SUITED TO INTELLIGIBLE AND INTELLIGENT
TREATMENT OF PUBLIC ISSUES; THE BROADCASTER HAS CHOSEN TO PROVIDE A
BALANCED TREATMENT OF CONTROVERSIAL QUESTIONS IN A MORE COMPREHENSIVE
FORM.  OBVIOUSLY THE LICENSEE'S EVALUATION IS BASED ON ITS OWN
JOURNALISTIC JUDGMENT OF PRIORITIES AND NEWSWORTHINESS. 

MOREOVER, THE COMMISSION HAS NOT FOSTERED THE LICENSEE POLICY
CHALLENGED HERE; IT HAS SIMPLY DECLINED TO COMMAND PARTICULAR ACTION
BECAUSE IT FELL WITHIN THE AREA OF JOURNALISTIC DISCRETION.  THE
COMMISSION EXPLICITLY EMPHASIZED THAT "THERE IS OF COURSE NO COMMISSION
POLICY THWARTING THE SALE OF TIME TO COMMENT ON PUBLIC ISSUES."  25
F.C.C. 2D, AT 226.  THE COMMISSION'S REASONING, CONSISTENT WITH NEARLY
40 YEARS OF PRECEDENT, IS THAT SO LONG AS A LICENSEE MEETS ITS "PUBLIC
TRUSTEE" OBLIGATION TO PROVIDE BALANCED COVERAGE OF ISSUES AND EVENTS,
IT HAS BROAD DISCRETION TO DECIDE HOW THAT OBLIGATION WILL BE MET.  WE
DO NOT REACH THE QUESTION WHETHER THE FIRST AMENDMENT OR THE ACT CAN BE
READ TO PRECLUDE THE COMMISSION FROM DETERMINING THAT IN SOME
SITUATIONS THE PUBLIC INTEREST REQUIRES LICENSEES TO RE-EXAMINE THEIR
POLICIES WITH RESPECT TO EDITORIAL ADVERTISEMENTS.  THE COMMISSION HAS
NOT YET MADE SUCH A DETERMINATION; IT HAS FOR THE PRESENT AT LEAST,
FOUND THE POLICY TO BE WITHIN THE SPHERE OF JOURNALISTIC DISCRETION
WHICH CONGRESS HAS LEFT WITH THE LICENSEE. 

THUS, IT CANNOT BE SAID THAT THE GOVERNMENT IS A "PARTNER" TO THE
ACTION OF BROADCAST LICENSEE COMPLAINED OF HERE, NOR IS IT ENGAGED IN A
"SYMBIOTIC RELATIONSHIP" WITH THE LICENSEE, PROFITING FROM THE
INVIDIOUS DISCRIMINATION OF ITS PROXY.  COMPARE MOOSE LODGE NO. 107 V.
IRVIS, 407 U.S. 163, 174 - 177 (1972), WITH BURTON V. WILMINGTON
PARKING AUTHORITY, 365 U.S., AT 723 - 724.  THE FIRST AMENDMENT DOES
NOT REACH ACTS OF PRIVATE PARTIES IN EVERY INSTANCE WHERE THE CONGRESS
OR THE COMMISSION HAS MERELY PERMITTED OR FAILED TO PROHIBIT SUCH
ACTS. 

OUR CONCLUSION IS NOT ALTERED MERELY BECAUSE THE COMMISSION REJECTED
THE CLAIMS OF BEM AND DNC AND CONCLUDED THAT THE CHALLENGED LICENSEE
POLICY IS NOT INCONSISTENT WITH THE PUBLIC INTEREST.  IT IS TRUE THAT
IN PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451 (1952), WE FOUND
GOVERNMENTAL ACTION SUFFICIENT TO TRIGGER FIRST AMENDMENT PROTECTION ON
A RECORD INVOLVING AGENCY APPROVAL OF THE CONDUCT OF A PUBLIC UTILITY. 
THOUGH WE HELD THAT THE DECISION OF A DISTRICT OF COLUMBIA BUS COMPANY
TO INSTALL RADIO RECEIVERS IN ITS PUBLIC BUSES WAS WITHIN THE REACH OF
THE FIRST AMENDMENT, THERE CONGRESS HAD EXPRESSLY AUTHORIZED THE AGENCY
TO UNDERTAKE PLENARY INTERVENTION INTO THE AFFAIRS OF THE CARRIER AND
IT WAS PURSUANT TO THAT AUTHORIZATION THAT THE AGENCY INVESTIGATED THE
CHALLENGED POLICY AND APPROVED IT ON PUBLIC INTEREST STANDARDS.  ID.,
AT 462. 

HERE, CONGRESS HAS NOT ESTABLISHED A REGULATORY SCHEME FOR BROADCAST
LICENSEES AS PERVASIVE AS THE REGULATION OF PUBLIC TRANSPORTATION IN
POLLAK.  MORE IMPORTANT, AS WE HAVE NOTED, CONGRESS HAS AFFIRMATIVELY
INDICATED IN THE COMMUNICATIONS ACT THAT CERTAIN JOURNALISTIC DECISIONS
ARE FOR THE LICENSEE, SUBJECT ONLY TO THE RESTRICTIONS IMPOSED BY
EVALUATION OF ITS OVERALL PERFORMANCE UNDER THE PUBLIC INTEREST
STANDARD.  IN POLLAK THERE WAS NO SUGGESTION THAT CONGRESS HAD
CONSIDERED WORTHY OF PROTECTION THE CARRIER'S INTEREST IN EXERCISING
DISCRETION OVER THE CONTENT OF COMMUNICATIONS FORCED ON PASSENGERS.  A
MORE BASIC DISTINCTION, PERHAPS, BETWEEN POLLAK AND THIS CASE IS THAT
POLLAK WAS CONCERNED WITH A TRANSPORTATION UTILITY THAT ITSELF DERIVES
NO PROTECTION FROM THE FIRST AMENDMENT.  SEE UNITED STATES V. PARAMOUNT
PICTURES, INC., 334 U.S. 131, 166 (1948). 

WERE WE TO READ THE FIRST AMENDMENT TO SPELL OUT GOVERNMENTAL ACTION
IN THE CIRCUMSTANCES PRESENTED HERE, FEW LICENSEE DECISIONS ON THE
CONTENT OF BROADCASTS OR THE PROCESSES OF EDITORIAL EVALUATION WOULD
ESCAPE CONSTITUTIONAL SCRUTINY.  IN THIS SENSITIVE AREA SO SWEEPING A
CONCEPT OF GOVERNMENTAL ACTION WOULD GO FAR IN PRACTICAL EFFECT TO
UNDERMINE NEARLY A HALF CENTURY OF UNMISTAKABLE CONGRESSIONAL PURPOSE
TO MAINTAIN--NO MATTER HOW DIFFICULT THE TASK--ESSENTIALLY PRIVATE
BROADCAST JOURNALISM HELD ONLY BROADLY ACCOUNTABLE TO PUBLIC INTEREST
STANDARDS.  TO DO THIS CONGRESS, AND THE COMMISSION AS ITS AGENT, MUST
REMAIN IN A POSTURE OF FLEXIBILITY TO CHART A WORKABLE "MIDDLE COURSE"
IN ITS QUEST TO PRESERVE A BALANCE BETWEEN THE ESSENTIAL PUBLIC
ACCOUNTABILITY AND THE DESIRED PRIVATE CONTROL OF THE MEDIA. 

MORE PROFOUNDLY, IT WOULD BE ANOMALOUS FOR US TO HOLD, IN THE NAME
OF PROMOTING THE CONSTITUTIONAL GUARANTEES OF FREE EXPRESSION, THAT THE
DAY-TO-DAY EDITORIAL DECISIONS OF BROADCAST LICENSEES ARE SUBJECT TO
THE KIND OF RESTRAINTS URGED BY RESPONDENTS.  TO DO SO IN THE NAME OF
THE FIRST AMENDMENT WOULD BE A CONTRADICTION.  JOURNALISTIC DISCRETION
WOULD IN MANY WAYS BE LOST TO THE RIGID LIMITATIONS THAT THE FIRST
AMENDMENT IMPOSES ON GOVERNMENT.  APPLICATION OF SUCH STANDARDS TO
BROADCAST LICENSEES WOULD BE ANTITHETICAL TO THE VERY IDEAL OF
VIGOROUS, CHALLENGING DEBATE ON ISSUES OF PUBLIC INTEREST.  EVERY
LICENSEE IS ALREADY HELD ACCOUNTABLE FOR THE TOTALITY OF ITS
PERFORMANCE OF PUBLIC INTEREST OBLIGATIONS. 

THE CONCEPT OF PRIVATE, INDEPENDENT BROADCAST JOURNALISM, REGULATED
BY GOVERNMENT TO ASSURE PROTECTION OF THE PUBLIC INTEREST, HAS EVOLVED
SLOWLY AND CAUTIOUSLY OVER MORE THAN 40 YEARS AND HAS BEEN NURTURED BY
PROCESSES OF ADJUDICATION.  THAT CONCEPT OF JOURNALISTIC INDEPENDENCE
COULD NOT CO-EXIST WITH A READING OF THE CHALLENGED CONDUCT OF THE
LICENSEE AS GOVERNMENTAL ACTION.  NOR COULD IT EXIST WITHOUT
ADMINISTRATIVE FLEXIBILITY TO MEET CHANGING NEEDS AND SWIFT
TECHNOLOGICAL DEVELOPMENTS.  WE THEREFORE CONCLUDE THAT THE POLICIES
COMPLAINED OF DO NOT CONSTITUTE GOVERNMENTAL ACTION VIOLATIVE OF THE
FIRST AMENDMENT.  SEE MCINTIRE V. WILLIAM PENN BROADCASTING CO., 151 F.
2D 597, 601 (CA3 1945), CERT. DENIED, 327 U.S. 779 (1946);
MASSACHUSETTS UNIVERSALIST CONVENTION V. HILDRETH & ROGERS CO., 183 F.
2D 497 (CA1 1950); POST V. PAYTON, 323 F. SUPP. 799, 803 (EDNY 1971). 

        IV 

THERE REMAINS FOR CONSIDERATION THE QUESTION WHETHER THE "PUBLIC
INTEREST" STANDARD OF THE COMMUNICATIONS ACT REQUIRES BROADCASTERS TO
ACCEPT EDITORIAL ADVERTISEMENTS OR, WHETHER, ASSUMING GOVERNMENTAL
ACTION, BROADCASTERS ARE REQUIRED TO DO SO BY REASON OF THE FIRST
AMENDMENT.  IN RESOLVING THOSE ISSUES, WE ARE GUIDED BY THE "VENERABLE
PRINCIPLE THAT THE CONSTRUCTION OF A STATUTE BY THOSE CHARGED WITH ITS
EXECUTION SHOULD BE FOLLOWED UNLESS THERE ARE COMPELLING INDICATIONS
THAT IT IS WRONG . . . ."  RED LION, 395 U.S., AT 381.  WHETHER THERE
ARE "COMPELLING INDICATIONS" OF ERROR IN THESE CASES MUST BE ANSWERED
BY A CAREFUL EVALUATION OF THE COMMISSION'S REASONING IN LIGHT OF THE
POLICIES EMBODIED BY CONGRESS IN THE "PUBLIC INTEREST" STANDARD OF THE
ACT.  MANY OF THOSE POLICIES, AS THE LEGISLATIVE HISTORY MAKES CLEAR,
WERE DRAWN FROM THE FIRST AMENDMENT ITSELF; THE "PUBLIC INTEREST"
STANDARD NECESSARILY INVITES REFERENCE TO FIRST AMENDMENT PRINCIPLES. 
THUS, THE QUESTION BEFORE US IS WHETHER THE VARIOUS INTERESTS IN FREE
EXPRESSION OF THE PUBLIC, THE BROADCASTER, AND THE INDIVIDUALS REQUIRE
BROADCASTERS TO SELL COMMERCIAL TIME TO PERSONS WISHING TO DISCUSS
CONTROVERSIAL ISSUES.  IN RESOLVING THAT ISSUE IT MUST CONSTANTLY BE
KEPT IN MIND THAT THE INTEREST OF THE PUBLIC IS OUR FOREMOST CONCERN. 
WITH BROADCASTING, WHERE THE AVAILABLE MEANS OF COMMUNICATION ARE
LIMITED IN BOTH SPACE AND TIME, THE ADMONITION OF PROFESSOR ALEXANDER
MEIKLEJOHN THAT "(WHAT IS ESSENTIAL IS NOT THAT EVERYONE SHALL SPEAK,
BUT THAT EVERYTHING WORTH SAYING SHALL BE SAID" IS PECULIARLY
APPROPRIATE.  POLITICAL FREEDOM 26 (1948). 

AT THE OUTSET WE REITERATE WHAT WAS MADE CLEAR EARLIER THAT NOTHING
IN THE LANGUAGE OF THE COMMUNICATIONS ACT OR ITS LEGISLATIVE HISTORY
COMPELS A CONCLUSION DIFFERENT FROM THAT REACHED BY THE COMMISSION.  AS
WE HAVE SEEN, CONGRESS HAS TIME AND AGAIN REJECTED VARIOUS LEGISLATIVE
ATTEMPTS THAT WOULD HAVE MANDATED A VARIETY OF FORMS OF INDIVIDUAL
ACCESS.  THAT IS NOT TO SAY THAT CONGRESS' REJECTION OF SUCH PROPOSALS
MUST BE TAKEN TO MEAN THAT CONGRESS IS OPPOSED TO PRIVATE RIGHTS OF
ACCESS UNDER ALL CIRCUMSTANCES.  RATHER, THE POINT IS THAT CONGRESS HAS
CHOSEN TO LEAVE SUCH QUESTIONS WITH THE COMMISSION, TO WHICH IT HAS
GIVEN THE FLEXIBILITY TO EXPERIMENT WITH NEW IDEAS AS CHANGING
CONDITIONS REQUIRE.  IN THIS CASE, THE COMMISSION HAS DECIDED THAT ON
BALANCE THE UNDESIRABLE EFFECTS OF THE RIGHT OF ACCESS URGED BY
RESPONDENTS WOULD OUTWEIGH THE ASSERTED BENEFITS.  THE COURT OF APPEALS
FAILED TO GIVE DUE WEIGHT TO THE COMMISSION'S JUDGMENT ON THESE
MATTERS. 

THE COMMISSION WAS JUSTIFIED IN CONCLUDING THAT THE PUBLIC INTEREST
IN PROVIDING ACCESS TO THE MARKETPLACE OF "IDEAS AND EXPERIENCES" WOULD
SCARCELY BE SERVED BY A SYSTEM SO HEAVILY WEIGHTED IN FAVOR OF THE
FINANCIALLY AFFLUENT, OR THOSE WITH ACCESS TO WEALTH.  CF. RED LION,
SUPRA, AT 392.  EVEN UNDER A FIRST-COME-FIRST-SERVED SYSTEM, PROPOSED
BY THE DISSENTING COMMISSIONER IN THESE CASES, /16/  THE VIEWS OF THE
AFFLUENT COULD WELL PREVAIL OVER THOSE OF OTHERS, SINCE THEY WOULD HAVE
IT WITHIN THEIR POWER TO PURCHASE TIME MORE FREQUENTLY.  MOREOVER,
THERE IS THE SUBSTANTIAL DANGER, AS THE COURT OF APPEALS ACKNOWLEDGED,
146 U.S. APP. D.C., AT 203, 450 F. 2D, AT 664, THAT THE TIME ALLOTTED
FOR EDITORIAL ADVERTISING COULD BE MONOPOLIZED BY THOSE OF ONE
POLITICAL PERSUASION. 

THESE PROBLEMS WOULD NOT NECESSARILY BE SOLVED BY APPLYING THE
FAIRNESS DOCTRINE, INCLUDING THE CULLMAN DOCTRINE, TO EDITORIAL
ADVERTISING.  IF BROADCASTERS WERE REQUIRED TO PROVIDE TIME, FREE WHEN
NECESSARY, FOR THE DISCUSSION OF THE VARIOUS SHADES OF OPINION ON THE
ISSUE DISCUSSED IN THE ADVERTISEMENT, THE AFFLUENT COULD STILL
DETERMINE IN LARGE PART THE ISSUES TO BE DISCUSSED.  THUS, THE VERY
PREMISE OF THE COURT OF APPEALS' HOLDING--THAT A RIGHT OF ACCESS IS
NECESSARY TO ALLOW INDIVIDUALS AND GROUPS THE OPPORTUNITY FOR SELF
INITIATED SPEECH--WOULD HAVE LITTLE MEANING TO THOSE WHO COULD NOT
AFFORD TO PURCHASE TIME IN THE FIRST INSTANCE.  /17/ 

IF THE FAIRNESS DOCTRINE WERE APPLIED TO EDITORIAL ADVERTISING,
THERE IS ALSO THE SUBSTANTIAL DANGER THAT THE EFFECTIVE OPERATION OF
THAT DOCTRINE WOULD BE JEOPARDIZED.  TO MINIMIZE FINANCIAL HARDSHIP AND
TO COMPLY FULLY WITH ITS PUBLIC RESPONSIBILITIES A BROADCASTER MIGHT
WELL BE FORCED TO MAKE REGULAR PROGRAMMING TIME AVAILABLE TO THOSE
HOLDING A VIEW DIFFERENT FROM THAT EXPRESSED IN AN EDITORIAL
ADVERTISEMENT; INDEED, BEM HAS SUGGESTED AS MUCH IN ITS BRIEF.  THE
RESULT WOULD BE A FURTHER EROSION OF THE JOURNALISTIC DISCRETION OF
BROADCASTERS IN THE COVERAGE OF PUBLIC ISSUES, AND A TRANSFER OF
CONTROL OVER THE TREATMENT OF PUBLIC ISSUES FROM THE LICENSEES WHO ARE
ACCOUNTABLE FOR BROADCAST PERFORMANCE TO PRIVATE INDIVIDUALS WHO ARE
NOT. THE PUBLIC INTEREST WOULD NO LONGER BE "PARAMOUNT" BUT, RATHER,
SUBORDINATE TO PRIVATE WHIM ESPECIALLY SINCE, UNDER THE COURT OF
APPEALS' DECISION, A BROADCASTER WOULD BE LARGELY PRECLUDED FROM
REJECTING EDITORIAL ADVERTISEMENTS THAT DEALT WITH MATTERS TRIVIAL OR
INSIGNIFICANT OR ALREADY FAIRLY COVERED BY THE BROADCASTER.  146 U.S.
APP. D.C., AT 196 N. 36, 197, 450 F. 2D, AT 657 N. 36, 658.  IF THE
FAIRNESS DOCTRINE AND THE CULLMAN DOCTRINE WERE SUSPENDED TO ALLEVIATE
THESE PROBLEMS, AS RESPONDENTS SUGGEST MIGHT BE APPROPRIATE, THE
QUESTION ARISES WHETHER WE WOULD HAVE ABANDONED MORE THAN WE HAVE
GAINED.  UNDER SUCH A REGIME THE CONGRESSIONAL OBJECTIVE OF BALANCED
COVERAGE OF PUBLIC ISSUES WOULD BE SERIOUSLY THREATENED.     NOR CAN WE
ACCEPT THE COURT OF APPEALS' VIEW THAT EVERY POTENTIAL SPEAKER IS "THE
BEST JUDGE" OF WHAT THE LISTENING PUBLIC OUGHT TO HEAR OR INDEED THE
BEST JUDGE OF THE MERITS OF HIS OR HER VIEWS.  ALL JOURNALISTIC
TRADITION AND EXPERIENCE IS TO THE CONTRARY.  FOR BETTER OF WORSE,
EDITING IS WHAT EDITORS ARE FOR; AND EDITING IS SELECTION AND CHOICE OF
MATERIAL.  THAT EDITORS--NEWSPAPER OR BROADCAST--CAN AND DO ABUSE THIS
POWER IS BEYOND DOUBT, BUT THAT IS NO REASON TO DENY THE DISCRETION
CONGRESS PROVIDED.  CALCULATED RISKS OF ABUSE ARE TAKEN IN ORDER TO
PRESERVE HIGHER VALUES.  THE PRESENCE OF THESE RISKS IS NOTHING NEW;
THE AUTHORS OF THE BILL OF RIGHTS ACCEPTED THE REALITY THAT THESE RISKS
WERE EVILS FOR WHICH THERE WAS NO ACCEPTABLE REMEDY OTHER THAN A SPIRIT
OF MODERATION AND A SENSE OF RESPONSIBILITY--AND CIVILITY--ON THE PART
OF THOSE WHO EXERCISE THE GUARANTEED FREEDOMS OF EXPRESSION. 

IT WAS REASONABLE FOR CONGRESS TO CONCLUDE THAT THE PUBLIC INTEREST
IN BEING INFORMED REQUIRES PERIODIC ACCOUNTABILITY ON THE PART OF THOSE
WHO ARE ENTRUSTED WITH THE USE OF BROADCAST FREQUENCIES, SCARCE AS THEY
ARE.  IN THE DELICATE BALANCING HISTORICALLY FOLLOWED IN THE REGULATION
OF BROADCASTING CONGRESS AND THE COMMISSION COULD APPROPRIATELY
CONCLUDE THAT THE ALLOCATION OF JOURNALISTIC PRIORITIES SHOULD BE
CONCENTRATED IN THE LICENSEE RATHER THAN DIFFUSED AMONG MANY.  THIS
POLICY GIVES THE PUBLIC SOME ASSURANCE THAT THE BROADCASTER WILL BE
ANSWERABLE IF HE FAILS TO MEET ITS LEGITIMATE NEEDS.  NO SUCH
ACCOUNTABILITY ATTACHES TO THE PRIVATE INDIVIDUAL, THOSE ONLY
QUALIFICATIONS FOR USING THE BROADCAST FACILITY MAY BE ABUNDANT FUNDS
AND A POINT OF VIEW.  TO AGREE THAT DEBATE ON PUBLIC ISSUES SHOULD BE
"ROBUST, AND WIDE-OPEN" DOES NOT MEAN THAT WE SHOULD EXCHANGE "PUBLIC
TRUSTEE" BROADCASTING, WITH ALL ITS LIMITATIONS, FOR A SYSTEM OF SELF
APPOINTED EDITORIAL COMMENTATORS. 

THE COURT OF APPEALS DISCOUNTED THOSE DIFFICULTIES BY STRESSING THAT
IT WAS MERELY MANDATING A "MODEST REFORM," REQUIRING ONLY THAT
BROADCASTERS BE REQUIRED TO ACCEPT SOME EDITORIAL ADVERTISING.  146
U.S. APP. D.C., AT 202, 450 F. 2D, AT 663.  THE COURT SUGGESTED THAT
BROADCASTERS COULD PLACE AN "OUTSIDE LIMIT ON THE TOTAL AMOUNT OF
EDITORIAL ADVERTISING THEY WILL SELL" AND THAT THE COMMISSION AND THE
BROADCASTERS COULD DEVELOP "'REASONABLE REGULATIONS' DESIGNED TO
PREVENT DOMINATION BY A FEW GROUPS OR A FEW VIEWPOINTS."  ID., AT 202,
203, 450 F. 2D, AT 663, 664.  IF THE COMMISSION DECIDED TO APPLY THE
FAIRNESS DOCTRINE TO EDITORIAL ADVERTISEMENTS AND AS A RESULT
BROADCASTERS SUFFERED FINANCIAL HARM, THE COURT THOUGHT THE "COMMISSION
COULD MAKE NECESSARY ADJUSTMENTS."  ID., AT 203, 450 F. 2D, AT 664. 
THUS, WITHOUT PROVIDING ANY SPECIFIC ANSWERS TO THE SUBSTANTIAL
OBJECTIONS RAISED BY THE COMMISSION AND THE BROADCASTERS, OTHER THAN TO
EXPRESS REPEATEDLY ITS "CONFIDENCE" IN THE COMMISSION'S ABILITY TO
OVERCOME ANY DIFFICULTIES, THE COURT REMANDED THE CASES TO THE
COMMISSION FOR THE DEVELOPMENT OF REGULATIONS TO IMPLEMENT A
CONSTITUTIONAL RIGHT OF ACCESS. 

BY MINIMIZING THE DIFFICULT PROBLEMS INVOLVED IN IMPLEMENTING SUCH A
RIGHT OF ACCESS, THE COURT OF APPEALS FAILED TO COME TO GRIPS WITH
ANOTHER PROBLEM OF CRITICAL IMPORTANCE TO BROADCAST REGULATION AND THE
FIRST AMENDMENT--THE RISK OF AN ENLARGEMENT OF GOVERNMENT CONTROL OVER
THE CONTENT OF BROADCAST DISCUSSION OF PUBLIC ISSUES.  SEE, E. G.,
FOWLER V. RHODE ISLAND, 345 U.S. 67 (1953); NIEMOTKO V. MARYLAND, 340
U.S. 268 (1951).  THIS RISK IS INHERENT IN THE COURT OF APPEALS' REMAND
REQUIRING REGULATIONS AND PROCEDURES TO SORT OUT REQUESTS TO BE HEARD-
A PROCESS INVOLVING THE VERY EDITING THAT LICENSEES NOW PERFORM AS TO
REGULAR PROGRAMMING.  ALTHOUGH THE USE OF A PUBLIC RESOURCE BY THE
BROADCAST MEDIA PERMITS A LIMITED DEGREE OF GOVERNMENT SURVEILLANCE, AS
IS NOT TRUE WITH RESPECT TO PRIVATE MEDIA, SEE NATIONAL BROADCASTING
CO. V. UNITED STATES, 319 U.S., AT 216 - 219, THE GOVERNMENT'S POWER
OVER LICENSEES, AS WE HAVE NOTED, IS BY NO MEANS ABSOLUTE AND IS
CAREFULLY CIRCUMSCRIBED BY THE ACT ITSELF.  /18/ 

UNDER A CONSTITUTIONALLY COMMANDED AND GOVERNMENT SUPERVISED RIGHT
OF-ACCESS SYSTEM URGED BY RESPONDENTS AND MANDATED BY THE COURT OF
APPEALS, THE COMMISSION WOULD BE REQUIRED TO OVERSEE FAR MORE OF THE
DAY-TO-DAY OPERATIONS OF BROADCASTERS' CONDUCT, DECIDING SUCH QUESTIONS
AS WHETHER A PARTICULAR INDIVIDUAL OR GROUP HAS HAD SUFFICIENT
OPPORTUNITY TO PRESENT ITS VIEWPOINT AND WHETHER A PARTICULAR VIEWPOINT
AAS ALREADY BEEN SUFFICIENTLY AIRED.  REGIMENTING BROADCASTERS IS TOO
RADICAL A THERAPY FOR THE AILMENT RESPONDENTS COMPLAIN OF. 

UNDER THE FAIRNESS DOCTRINE THE COMMISSION'S RESPONSIBILITY IS TO
JUDGE WHETHER A LICENSEE'S OVERALL PERFORMANCE INDICATES A SUSTAINED
GOOD-FAITH EFFORT TO MEET THE PUBLIC INTEREST IN BEING FULLY AND FAIRLY
INFORMED.  /19/ THE COMMISSION'S RESPONSIBILITIES UNDER A RIGHT-OF
ACCESS SYSTEM WOULD TEND TO DRAW IT INTO A CONTINUING CASE-BY-CASE
DETERMINATION OF WHO SHOULD BE HEARD AND WHEN.  INDEED, THE LIKELIHOOD
OF GOVERNMENT INVOLVEMENT IS SO GREAT THAT IT HAS BEEN SUGGESTED THAT
THE ACCEPTED CONSTITUTIONAL PRINCIPLES AGAINST CONTROL OF SPEECH
CONTENT WOULD NEED TO BE RELAXED WITH RESPECT TO EDITORIAL
ADVERTISEMENTS.  /20/  TO SACRIFICE FIRST AMENDMENT PROTECTIONS FOR SO
SPECULATIVE A GAIN IS NOT WARRANTED, AND IT WAS WELL WITHIN THE
COMMISSION'S DISCRETION TO CONSTRUE THE ACT SO AS TO AVOID SUCH A
RESULT.  /21/ 

THE COMMISSION IS ALSO ENTITLED TO TAKE INTO ACCOUNT THE REALITY
THAT IN A VERY REAL SENSE LISTENERS AND VIEWERS CONSTITUTE A "CAPTIVE
AUDIENCE."  CF. PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S., AT 463;
KOVACS V. COOPER, 336 U.S. 77 (1949).  THE "CAPTIVE" NATURE OF THE
BROADCAST AUDIENCE WAS RECOGNIZED AS EARLY AS 1924, WHEN COMMERCE
SECRETARY HOOVER REMARKED AT THE FOURTH NATIONAL RADIO CONFERENCE THAT
"THE RADIO LISTENER DOES NOT HAVE THE SAME OPTION THAT THE READER OF
PUBLICATIONS HAS--TO IGNORE ADVERTISING IN WHICH HE IS NOT INTERESTED-
AND HE MAY RESENT ITS INVASION OF HIS SET."  /22/  AS THE BROADCAST
MEDIA BECAME MORE PERVASIVE IN OUR SOCIETY, THE PROBLEM HAS BECOME MORE
ACUTE.  IN A RECENT DECISION UPHOLDING THE COMMISSION'S POWER TO
PROMULGATE RULES REGARDING CIGARETTE ADVERTISING, JUDGE BAZELON,
WRITING FOR A UNANIMOUS COURT OF APPEALS, NOTED SOME OF THE EFFECTS OF
THE UBIQUITOUS COMMERCIAL: 

"WRITTEN MESSAGES ARE NOT COMMUNICATED UNLESS THEY ARE READ, AND
READING REQUIRES AN AFFIRMATIVE ACT.  BROADCAST MESSAGES, IN CONTRAST,
ARE 'IN THE AIR.'  IN AN AGE OF OMNIPRESENT RADIO, THERE SCARCELY
BREATHES A CITIZEN WHO DOES NOT KNOW SOME PART OF A LEADING CIGARETTE
JINGLE BY HEART.  SIMILARLY, AN ORDINARY HABITUAL TELEVISION WATCHER
CAN AVOID THESE COMMERCIALS ONLY BY FREQUENTLY LEAVING THE ROOM,
CHANGING THE CHANNEL, OR DOING SOME OTHER SUCH AFFIRMATIVE ACT.  IT IS
DIFFICULT TO CALCULATE THE SUBLIMINAL IMPACT OF THIS PERVASIVE
PROPAGANDA, WHICH MAY BE HEARD EVEN IF NOT LISTENED TO, BUT IT MAY
REASONABLY BE THOUGHT GREATER THAN THE IMPACT OF THE WRITTEN WORD." 
BANZHAF V. FCC, 132 U.S. APP. D.C. 14, 32- 33, 405 F. 2D 1082, 1100 -
1101 (1968), CERT. DENIED, 396 U.S. 842 (1969).  IT IS NO ANSWER TO SAY
THAT BECAUSE WE TOLERATE PERVASIVE COMMERCIAL ADVERTISEMENTS WE CAN
ALSO LIVE WITH ITS POLITICAL COUNTERPARTS. 

THE RATIONALE FOR THE COURT OF APPEALS' DECISION IMPOSING A
CONSTITUTIONAL RIGHT OF ACCESS ON THE BROADCAST MEDIA WAS THAT THE
LICENSEE IMPERMISSIBLY DISCRIMINATES BY ACCEPTING COMMERCIAL
ADVERTISEMENTS WHILE REFUSING EDITORIAL ADVERTISEMENTS.  THE COURT
RELIED ON DECISIONS HOLDING THAT STATE-SUPPORTED SCHOOL NEWSPAPERS AND
PUBLIC TRANSIT COMPANIES WERE PROHIBITED BY THE FIRST AMENDMENT FROM
EXCLUDING CONTROVERSIAL EDITORIAL ADVERTISEMENTS IN FAVOR OF COMMERCIAL
ADVERTISEMENTS.  /23/  THE COURT ALSO ATTEMPED TO ANALOGIZE THIS CASE
TO SOME OF OUR DECISIONS HOLDING THAT STATES MAY NOT CONSTITUTIONALLY
BAN CERTAIN PROTECTED SPEECH WHILE AT THE SAME TIME PERMITTING OTHER
SPEECH IN PUBLIC AREAS.  COX V. LOUISIANA, 379 U.S. 536 (1965); FOWLER
V. RHODE ISLAND, 345 U.S. 67 (1953); NIEMOTKO V. MARYLAND, 340 U.S. 268
(1951).  THIS THEME OF "INVIDIOUS DISCRIMINATION" AGAINST PROTECTED
SPEECH IS ECHOED IN THE BRIEFS OF BEM AND DNC TO THIS COURT. 
RESPONDENTS ALSO RELY ON OUR RECENT DECISIONS IN GRAYNED V. CITY OF
ROCKFORD, 408 U.S. 104 (1972), AND POLICE DEPT. OF CHICAGO V. MOSLEY,
408 U.S. 92 (1972), WHERE WE HELD UNCONSTITUTIONAL CITY ORDINANCES THAT
PERMITTED "PEACEFUL PICKETING OF ANY SCHOOL INVOLVED IN A LABOR
DISPUTE," ID., AT 93, BUT PROHIBITED DEMONSTRATIONS FOR ANY OTHER
PURPOSES ON THE STREETS AND SIDEWALKS WITHIN 150 FEET OF THE SCHOOL. 

THOSE DECISIONS PROVIDE LITTLE GUIDANCE, HOWEVER, IN RESOLVING THE
QUESTION WHETHER THE FIRST AMENDMENT REQUIRES THE COMMISSION TO MANDATE
A PRIVATE RIGHT OF ACCESS TO THE BROADCAST MEDIA.  IN NONE OF THOSE
CASES DID THE FORUM SOUGHT FOR EXPRESSION HAVE AN AFFIRMATIVE AND
INDEPENDENT STATUTORY OBLIGATION TO PROVIDE FULL AND FAIR COVERAGE OF
PUBLIC ISSUES, SUCH AS CONGRESS HAS IMPOSED ON ALL BROADCAST
LICENSEES.  IN SHORT, THERE IS NO "DISCRIMINATION" AGAINST
CONTROVERSIAL SPEECH PRESENT IN THIS CASE.  THE QUESTION HERE IS NOT
WHETHER THERE IS TO BE DISCUSSION OF CONTROVERSIAL ISSUES OF PUBLIC
IMPORTANCE ON THE BROADCAST MEDIA, BUT RATHER WHO SHALL DETERMINE WHAT
ISSUES ARE TO BE DISCUSSED BY WHOM, AND WHEN. 

THE OPINION OF THE COURT OF APPEALS ASSERTED THAT THE FAIRNESS
DOCTRINE, INSOFAR AS IT ALLOWS BROADCASTERS TO EXERCISE CERTAIN
JOURNALISTIC JUDGMENTS OVER THE DISCUSSION OF PUBLIC ISSUES, IS
INADEQUATE TO MEET THE PUBLIC'S INTEREST IN BEING INFORMED.  THE
PRESENT SYSTEM, THE COURT HELD, "CONFORMS . . . TO A PATERNALISTIC
STRUCTURE IN WHICH LICENSEES AND BUREAUCRATS DECIDE WHAT ISSUES ARE
'IMPORTANT,' AND HOW 'FULLY' TO COVER THEM, AND THE FORMAT, TIME AND
STYLE OF THE COVERAGE."  146 U.S. APP. D.C., AT 195, 450 F. 2D, AT
656.  THE FORCED SALE OF ADVERTISING TIME FOR EDITORIAL SPOT
ANNOUNCEMENTS WOULD, ACCORDING TO THE COURT OF APPEALS MAJORITY, REMEDY
THIS DEFICIENCY.  THAT CONCLUSION WAS PREMISED ON THE NOTION THAT
ADVERTISING TIME, AS OPPOSED TO PROGRAMMING TIME, INVOLVES A "SPECIAL
AND SEPARATE MODE OF EXPRESSION" BECAUSE ADVERTISING CONTENT, UNLIKE
PROGRAMMING CONTENT, IS GENERALLY PREPARED AND EDITED BY THE
ADVERTISER.  THUS, THAT COURT CONCLUDED, A BROADCASTER'S POLICY AGAINST
USING ADVERTISING TIME FOR EDITORIAL MESSAGES "MAY WELL IGNORE
OPPORTUNITIES TO ENLIVEN AND ENRICH THE PUBLIC'S OVERALL INFORMATION." 
ID., AT 197, 450 F. 2D, AT 658.  THE COURT OF APPEALS' HOLDING WOULD
SERVE TO TRANSFER A LARGE SHARE OF RESPONSIBILITY FOR BALANCED
BROADCASTING FROM AN IDENTIFIABLE, REGULATED ENTITY--THE LICENSEE--TO
UNREGULATED SPEAKERS WHO COULD AFFORD THE COST. 

WE REJECT THE SUGGESTION THAT THE FAIRNESS DOCTRINE PERMITS
BROADCASTERS TO PRESIDE OVER A "PATERNALISTIC" REGIME.  SEE RED LION,
395 U.S., AT 390.  THAT DOCTRINE ADMITTEDLY HAS NOT ALWAYS BROUGHT TO
THE PUBLIC PERFECT OR, INDEED, EVEN CONSISTENTLY HIGH-QUALITY TREATMENT
OF ALL PUBLIC EVENTS AND ISSUES; BUT THE REMEDY DOES NOT LIE IN
DILUTING LICENSEE RESPONSIBILITY.  THE COMMISSION STRESSED THAT, WHILE
THE LICENSEE HAS DISCRETION IN FULFILLING ITS OBLIGATIONS UNDER THE
FAIRNESS DOCTRINE, IT IS REQUIRED TO "PRESENT REPRESENTATIVE COMMUNITY
VIEWS AND VOICES ON CONTROVERSIAL ISSUES WHICH ARE OF IMPORTANCE TO
(ITS) LISTENERS," AND IT IS PROHIBITED FROM "EXCLUDING PARTISAN VOICES
AND ALWAYS ITSELF PRESENTING VIEWS IN A BLANC, INOFFENSIVE MANNER . . .
."  25 F.C.C. 2D, AT 222.  A BROADCASTER NEGLECTS THAT OBLIGATION ONLY
AT THE RISK OF LOSING HIS LICENSE. 

CONCEIVABLY AT SOME FUTURE DATE CONGRESS OR THE COMMISSION--OR THE
BROADCASTERS--MAY DEVISE SOME KINE OF LIMITED RIGHT OF ACCESS THAT IS
BOTH PRACTICABLE AND DESIRABLE.  INDEED, THE COMMISSION NOTED IN THESE
PROCEEDINGS THAT THE ADVENT OF CABLE TELEVISION WILL AFFORD INCREASED
OPPORTUNITIES FOR THE DISCUSSION OF PUBLIC ISSUES.  IN ITS PROPOSED
RULES ON CABLE TELEVISION THE COMMISSION HAS PROVIDED THAT CABLE
SYSTEMS IN MAJOR TELEVISION MARKETS 

"SHALL MAINTAIN AT LEAST ONE SPECIALLY DESIGNATED, NONCOMMERCIAL
PUBLIC ACCESS CHANNEL AVAILABLE ON A FIRST-COME, NONDISCRIMINATORY
BASIS.  THE SYSTEM SHALL MAINTAIN AND HAVE AVAILABLE FOR PUBLIC USE AT
LEASE THE MINIMAL EQUIPMENT AND FACILITIES NECESSARY FOR THE PRODUCTION
OF PROGRAMMING FOR SUCH A CHANNEL."  37 FED REG. 3289, ^ 76.251
(A)(4). 

FOR THE PRESENT, THE COMMISSION IS CONDUCTING A WIDE-RANGING STUDY
INTO THE EFFECTIVENESS OF THE FAIRNESS DOCTRINE TO SEE WHAT NEEDS TO BE
DONE TO IMPROVE THE COVERAGE AND PRESENTATION OF PUBLIC ISSUES ON THE
BROADCAST MEDIA.  NOTICE OF INQUIRY IN DOCKET 19260, 30 F.C.C. 2D 26,
36 FED. REG. 11825.  AMONG OTHER THINGS, THE STUDY WILL ATTEMPT TO
DETERMINE WHETHER "THERE IS ANY FEASIBLE METHOD OF PROVIDING ACCESS FOR
DISCUSSION OF PUBLIC ISSUES OUTSIDE THE REQUIREMENTS OF THE FAIRNESS
DOCTRINE."  30 F.C.C. 2D, AT 33.  THE COMMISSION MADE IT CLEAR,
HOWEVER, THAT IT DOES NOT INTEND TO DISCARD THE FAIRNESS DOCTRINE OR TO
REQUIRE BROADCASTERS TO ACCEPT ALL PRIVATE DEMANDS FOR AIR TIME.  /24/
THE COMMISSION'S INQUIRY ON THIS SCORE WAS ANNOUNCED PRIOR TO THE
DECISION OF THE COURT OF APPEALS IN THIS CASE AND HEARINGS ARE UNDER
WAY.     THE PROBLEMS PERCEIVED BY THE COURT OF APPEALS MAJORITY ARE BY
NO MEANS NEW; AS WE HAVE SEEN, THE HISTORY OF THE COMMUNICATIONS ACT
AND THE ACTIVITIES OF THE COMMISSION OVER A PERIOD OF 40 YEARS REFLECT
A CONTINUING SEARCH FOR MEANS TO ACHIEVE REASONABLE REGULATION
COMPATIBLE WITH THE FIRST AMENDMENT RIGHTS OF THE PUBLIC AND THE
LICENSEES.  THE COMMISSION'S PENDING HEARINGS ARE BUT ONE STEP IN THIS
CONTINUING PROCESS.  AT THE VERY LEAST, COURTS SHOULD NOT FREEZE THIS
NECESSARILY DYNAMIC PROCESS INTO A CONSTITUTIONAL HOLDING.  SEE
AMERICAN COMMERCIAL LINES, INC. V. LOUISVILLE & N.R. CO., 392 U.S. 571,
590 - 593 (1968). 

THE JUDGMENT OF THE COURT OF APPEALS IS

REVERSED. 

/1/  THE COMMISSION'S RULING AGAINST BEM'S FAIRNESS DOCTRINE
COMPLAINT AND IN FAVOR OF DNC'S CLAIM THAT POLITICAL PARTIES SHOULD BE
PERMITTED TO PURCHASE AIR TIME FOR SOLICITATION OF FUNDS WERE NOT
APPEALED TO THE COURT OF APPEALS AND ARE NOT BEFORE US HERE. 

/2/  CONGRESSMAN DAVIS, FOR EXAMPLE, STATED ON THE FLOOR OF THE
HOUSE THE VIEW THAT CONGRESS FOUND UNACCEPTABLE: "I DO NOT THINK ANY
MEMBER OF THE COMMITTEE WILL DENY THAT IT IS ABSOLUTELY INEVITABLE THAT
WE ARE GOING TO HAVE TO REGULATE THE RADIO PUBLIC UTILITIES JUST AS WE
REGULATE OTHER PUBLIC UTILITIES.  WE ARE GOING TO HAVE TO REGULATE THE
RATES AND THE SERVICE, AND TO FORCE THEM TO GIVE EQUAL SERVICE AND
EQUAL TREATMENT TO ALL."  67 CONG. REC. 5483.  SEE ALSO 67 CONG. REC.
5484. 

/3/  SECTION 315 (A) NOW READS: 

"IF ANY LICENSEE SHALL PERMIT ANY PERSON WHO IS A LEGALLY QUALIFIED
CANDIDATE FOR ANY PUBLIC OFFICE TO USE A BROADCASTING STATION, HE SHALL
AFFORD EQUAL OPPORTUNITIES TO ALL OTHER SUCH CANDIDATES FOR THAT OFFICE
IN THE USE OF SUCH BROADCASTING STATION:  PROVIDED, THAT SUCH LICENSEE
SHALL HAVE NO POWER OF CENSORSHIP OVER THE MATERIAL BROADCAST UNDER THE
PROVISIONS OF THIS SECTION.  NO OBLIGATION IS IMPOSED UPON ANY LICENSEE
TO ALLOW THE USE OF ITS STATION BY ANY SUCH CANDIDATE.  APPEARANCE BY A
LEGALLY QUALIFIED CANDIDATE ON ANY-- 

"(1) BONA FIDE NEWSCAST, 

"(2) BONA FIDE NEWS INTERVIEW, 

"(3) BONA FIDE NEWS DOCUMENTARY (IF THE APPEARANCE OF THE CANDIDATE
IS INCIDENTAL TO THE PRESENTATION OF THE SUBJECT OR SUBJECTS COVERED BY
THE NEWS DOCUMENTARY), OR 

"(4) ON-THE-SPOT COVERAGE OF BONA FIDE NEWS EVENTS (INCLUDING BUT
NOT LIMITED TO POLITICAL CONVENTIONS AND ACTIVITIES INCIDENTAL
THERETO), "SHALL NOT BE DEEMED TO BE USE OF A BROADCASTING STATION
WITHIN THE MEANING OF THIS SUBSECTION.  NOTHING IN THE FOREGOING
SENTENCE SHALL BE CONSTRUED AS RELIEVING BROADCASTERS, IN CONNECTION
WITH THE PRESENTATION OF NEWSCASTS, NEWS INTERVIEWS, NEWS
DOCUMENTARIES, AND ON-THE-SPOT COVERAGE OF NEWS EVENTS, FROM THE
OBLIGATION IMPOSED UPON THEM UNDER THIS CHAPTER TO OPERATE IN THE
PUBLIC INTEREST AND TO AFFORD REASONABLE OPPORTUNITY FOR THE DISCUSSION
OF CONFLICTING VIEWS ON ISSUES OF PUBLIC IMPORTANCE."  47 U.S.C. ^ 315
(A). 

/4/  THE SENATE PASSED A PROVISION PROVIDING THAT: "(IF ANY LICENSEE
SHALL PERMIT ANY PERSON TO USE A BROADCASTING STATION IN SUPPORT OF OR
IN OPPOSITION TO ANY CANDIDATE FOR PUBLIC OFFICE, OR IN THE
PRESENTATION OF VIEWS ON A PUBLIC QUESTION TO BE VOTED UPON AT AN
ELECTION, HE SHALL AFFORD EQUAL OPPORTUNITY TO AN EQUAL NUMBER OF OTHER
PERSONS TO USE SUCH STATION IN SUPPORT OF AN OPPOSING CANDIDATE FOR
SUCH PUBLIC OFFICE, OR TO REPLY TO A PERSON WHO HAS USED SUCH
BROADCASTING STATION IN SUPPORT OF OR IN OPPOSITION TO A CANDIDATE, OR
FOR THE PRESENTATION OF OPPOSITE VIEWS ON SUCH PUBLIC QUESTIONS."  SEE
HEARINGS ON S. 2910 BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE,
73D CONG., 2D SESS., 19 (1934).  THE PROVISION FOR DISCUSSION OF PUBLIC
ISSUES WAS DELETED BY THE HOUSE-SENATE CONFERENCE.  SEE H. R. CONF.
REP. NO. 1918 ON S. 3285, 73D CONG., 2D SESS., 49. 

ALSO NOTEWORTHY ARE TWO BILLS OFFERED IN 1934 THAT WOULD HAVE
RESTRICTED THE CONTROL OF BROADCASTERS OVER THE DISCUSSION OF CERTAIN
ISSUES.  CONGRESSMAN MCFADDEN PROPOSED A BILL THAT WOULD HAVE FORBIDDEN
BROADCASTERS TO DISCRIMINATE AGAINST PROGRAMS SPONSORED BY RELIGIOUS,
CHARITABLE, OR EDUCATIONAL ASSOCIATIONS.  H. R. 7986, 73D CONG, 2D
SESS.  THE BILL WAS NOT REPORTED OUT OF COMMITTEE.  AND, DURING THE
DEBATES ON THE 1934 ACT, SENATOR WAGNER AND HATFIELD OFFERED AN
AMENDMENT THAT WOULD HAVE ORDERED THE COMMISSION TO "RESERVE AND
ALLOCATE ONLY TO EDUCATIONA, RELIGIOUS, AGRICULTURAL, LABOR,
COOPERATIVE, AND SIMILAR NON-PROFIT-MAKING ASSOCIATIONS ONE-FOURTH OF
ALL THE RADIO BROADCASTING FACILITIES WITHIN ITS JURISDICTION."  78
CONG. REC. 8828.  SENATOR DILL EXPLAINED WHY THE COMMITTEE HAD REJECTED
THE PROPOSED AMENDMENT, INDICATING THAT THE PRACTICAL DIFFICULTIES AND
THE DANGERS OF CENSORSHIP WERE CRUCIAL: 

"MR. DILL.  . . . . IF WE SHOULD PROVIDE THAT 25 PERCENT OF TIME
SHALL BE ALLOCATED TO NONPROFIT ORGANIZATIONS, SOMEONE WOULD HAVE TO
DETERMINE--CONGRESS OR SOMEBODY ELSE--HOW MUCH OF THE 25 PERCENT SHOULD
GO TO EDUCATION, HOW MUCH OF IT TO RELIGION, AND HOW MUCH OF IT TO
AGRICULTURE, HOW MUCH OF IT TO LABOR, HOW MUCH OF IT TO FRATERNAL
ORGANIZATIONS, AND SO FORTH.  WHEN WE ENTER THIS FIELD WE MUST
DETERMINE HOW MUCH TO GIVE TO THE CATHOLICS PROBABLY AND HOW MUCH TO
THE PROTESTANTS AND HOW MUCH TO THE JEWS."  78 CONG. REC. 8843. 
SENATOR DILL WENT ON TO SAY THAT THE PROBLEM OF DETERMINING THE PROPER
ALLOCATION OF TIME FOR DISCUSSION OF THESE SUBJECTS SHOULD BE WORKED
OUT BY THE COMMISSION.  78 CONG. REC. 8844.  THE SENATE REJECTED THE
AMENDMENT.  78 CONG. REC. 8846. 

/5/ SECTION 3 (H) PROVIDES AS FOLLOWS: 

"'COMMON CARRIER' OR 'CARRIER' MEANS ANY PERSON ENGAGED AS A COMMON
CARRIER FOR HIRE, IN INTERSTATE OR FOREIGN RADIO TRANSMISSION OF
ENERGY, EXCEPT WHERE REFERENCE IS MADE TO COMMON CARRIERS NOT SUBJECT
TO THIS CHAPTER; BUT A PERSON ENGAGED IN RADIO BROADCASTING SHALL NOT,
INSOFAR AS SUCH PERSON IS SO ENGAGED, BE DEEMED A COMMON CARRIER."  48
STAT. 1066, AS AMENDED, 47 U.S.C. ^ 153 (H). 

/6/  48 STAT. 1083, AS AMENDED, 47 U.S.C. ^ 307. 

/7/  SECTION 303 OF THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1082,
AS AMENDED, 47 U.S.C. ^ 303, PROVIDES IN RELEVANT PART: 

"EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER, THE COMMISSION FROM
TIME TO TIME, AS PUBLIC CONVENIENCE, INTEREST, OR NECESSITY REQUIRES,
SHALL--

        .          .          .          . . 

"(B) PRESCRIBE THE NATURE OF THE SERVICE TO BE RENDERED BY EACH
CLASS OF LICENSED STATIONS AND EACH STATION WITHIN ANY CLASS;

        .          .          .          .  . 

"(R) MAKE SUCH RULES AND REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS
AND CONDITIONS, NOT INCONSISTENT WITH LAW, AS MAY BE NECESSARY TO CARRY
OUT THE PROVISIONS OF THIS CHAPTER . . . ." 

/8/  IN 1959, CONGRESS AMENDED ^ 315 OF THE ACT TO GIVE STATUTORY
APPROVAL TO THE FAIRNESS DOCTRINE.  ACT OF SEPT. 14, 1959 ^ 1, 73 STAT.
557, 47 U.S.C. ^ 315 (A). 

FOR A SUMMARY OF THE DEVELOPMENT AND NATURE OF THE FAIRNESS
DOCTRINE, SEE RED LION BROADCASTING CO. V. FCC, 395 U.S. 367, 375 - 386
(1969). 

/9/  SEE MADALYN MURRAY, 5 P & F RADIO REG. 2D 263 (1965).  FACTORS
THAT THE BROADCASTER MUST TAKE INTO ACCOUNT IN EXERCISING HIS
DISCRETION INCLUDE THE FOLLOWING: "IN DETERMINING WHETHER TO HONOR
SPECIFIC REQUESTS FOR TIME, THE STATION WILL INEVITABLY BE CONFRONTED
WITH SUCH QUESTIONS AS WHETHER THE SUBJECT IS WORTH CONSIDERING,
WHETHER THE VIEWPOINT OF THE REQUESTING PARTY HAS ALREADY RECEIVED A
SUFFICIENT AMOUNT OF BROADCAST TIME, OR WHETHER THERE MAY NOT BE OTHER
AVAILABLE GROUPS OR INDIVIDUALS WHO MIGHT BE MORE APPROPRIATE SPOKESMEN
FOR THE PARTICULAR POINT OF VIEW THAN THE PERSON (OR GROUP) MAKING THE
REQUEST."  REPORT ON EDITORILIZING BY BROADCAST LICENSEES, 13 F.C.C.
1246, 1251 - 1252 (1949). 

/10/  THE COMMISSION HAS ALSO ADOPTED VARIOUS COMPONENT REGULATIONS
UNDER THE FAIRNESS DOCTRINE, THE MOST NOTABLE OF WHICH ARE THE
"PERSONAL ATTACK" AND "POLITICAL EDITORIALIZING" RULES WHICH WE UPHELD
IN RED LION.  THE "PERSONAL ATTACK" RULE PROVIDES THAT "(WHEN, DURING
THE PRESENTATION OF VIEWS ON A CONTROVERSIAL ISSUE OF PUBLIC
IMPORTANCE, AN ATTACK IS MADE UPON THE HONESTY, CHARACTER, INTEGRITY OR
LIKE PERSONAL QUALITIES OF AN IDENTIFIED PERSON," THE LICENSEE MUST
NOTIFY THE PERSON ATTACKED AND GIVE HIM AN OPPORTUNITY TO RESPOND.  E.
G., 47 CFR ^ 73.123.  SIMILARLY, THE "POLITICAL EDITORIALIZING" RULE
PROVIDES THAT, WHEN A LICENSEE ENDORSES A POLITICAL CANDIDATE IN AN
EDITORIAL, HE MUST GIVE OTHER CANDIDATES OR THEIR SPOKESMEN AN
OPPORTUNITY TO RESPOND.  E. G., 47 CFR ^ 73.123. 

THE COMMISSION, OF COURSE, HAS TAKEN OTHER STEPS BEYOND THE FAIRNESS
DOCTRINE TO EXPAND THE DIVERSITY OF EXPRESSION ON RADIO AND
TELEVISION.  THE CHAIN BROADCASTING AND MULTIPLE OWNERSHIP RULES ARE
ESTABLISHED EXAMPLES.  E. G., 47 CFR ^^ 73.131, 73.240.  MORE RECENTLY,
THE COMMISSION PROMULGATED RULES LIMITING TELEVISION NETWORK
SYNDICATION PRACTICES AND RESERVING 25% OF PRIME TIME FOR NON-NETWORK
PROGRAMS.  47 CFR ^^ 73.658 (J), (K). 

/11/  THE COURT OF APPEALS, RESPONDENTS, AND THE DISSENT IN THIS
CASE HAVE RELIED ON DICTUM IN INITED BROADCASTING CO., 10 F.C.C. 515
(1945), AS ILLUSTRATING COMMISSION APPROVAL OF A PRIVATE RIGHT TO
PURCHASE AIR TIME FOR THE DISCUSSION OF CONTROVERSAL ISSUES.  IN THAT
CASE THE COMPLAINT ALLEGED, NOT ONLY THAT THE STATION HAD A POLICY OF
REFUSING TO SELL TIME FOR THE DISCUSSION OF PUBLIC ISSUES, BUT ALSO
THAT THE STATION HAD APPLIED ITS POLICY IN A DISCRIMINATORY MANNER, A
FACTOR NOT SHOWN IN THE CASES PRESENTLY BEFORE US.  FURTHERMORE, THE
DECISION WAS HANDED DOWN FOUR YEARS BEFORE THE COMMISSION HAD FULLY
DEVELOPED AND ARTICULATED THE FAIRNESS DOCTRINE.  SEE REPORT ON
EDITORIALIZING BY BROADCAST LICENSEES, 13 F.C.C. 1246 (1949).  THUS,
EVEN IF THE DECISION IS READ WITHOUT REFERENCE TO THE ALLEGATION OF
DISCRIMINATION, IT STANDS AS MERELY AN ISOLATED STATEMENT, MADE DURING
THE PERIOD IN WHICH THE COMMISSION WAS STILL WORKING OUT THE PROBLEMS
ASSOCIATED WITH THE DISCUSSION OF PUBLIC ISSUES; THE DICTUM HAS NOT
BEEN FOLLOWED SINCE AND HAS BEEN MODIFIED BY THE FAIRNESS DOCTRINE. 

/12/  IN 1959, AS NOTED EARLIER, CONGRESS AMENDED ^ 315 (A) OF THE
ACT TO GIVE STATUTORY APPROVAL TO THE COMMISSION'S FAIRNESS DOCTRINE. 
ACT OF SEPT. 14, 1959, ^ 1, 73 STAT. 557, 47 U.S.C. ^ 315 (A).  VERY
RECENTLY, CONGRESS AMENDED ^ 312 (A) OF THE 1934 ACT TO AUTHORIZE THE
COMMISSION TO REVOKE A STATION LICENSE "FOR WILLFUL OR REPEATED FAILURE
TO ALLOW REASONABLE ACCESS TO OR TO PERMIT PURCHASE OF REASONABLE
AMOUNTS OF TIME FOR THE USE OF A BROADCASTING STATION BY A LEGALLY
QUALIFIED CANDIDATE FOR FEDERAL ELECTIVE OFFICE ON BEHALF OF HIS
CANDIDACY."  CAMPAIGN COMMUNICATIONS REFORM ACT OF 1972, PUB. L. 92 -
225, 86 STAT. 4.  THIS AMENDMENT ESSENTIALLY CODIFIED THE COMMISSION'S
PRIOR INTERPRETATION OF ^ 315 (A) AS REQUIRING BROADCASTERS TO MAKE
TIME AVAILABLE TO POLITICAL CANDIDATES.  FARMERS UNION V. WDAY, 360
U.S. 525, 534 (1959).  SEE FCC MEMORANDUM ON SECOND SENTENCE OF SECTION
315 (A), IN POLITICAL BROADCASTS--EQUAL TIME, HEARINGS BEFORE
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
88TH CONG., 1ST SESS., ON H. J. RES. 247, PP. 84 - 90. 

/13/  SEE, E. G., H. R. 3595, 80TH CONG., 1ST SESS. (1947).  A MORE
RECENT PROPOSAL WAS OFFERED BY SENATOR FULBRIGHT.  HIS BILL WOULD HAVE
AMENDED ^ 315 OF THE ACT TO PROVIDE: 

"(D) LICENSEES SHALL PROVIDE A REASONABLE AMOUNT OF PUBLIC SERVICE
TIME TO AUTHORIZED REPRESENTATIVES OF THE SENATE OF THE UNITED STATES,
TO PRESENT THE VIEWS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES ON
ISSUES OF PUBLIC IMPORTANCE.  THE PUBLIC SERVICE TIME REQUIRED TO BE
PROVIDED UNDER THIS SUBSECTION SHALL BE MADE AVAILABLE TO EACH SUCH
AUTHORIZED REPRESENTATIVE AT LEAST, BUT NOT LIMITED TO, FOUR TIMES
DURING EACH CALENDER YEAR."  S. J. RES. 209, 91ST CONG., 2D SESS.
(1970). 

/14/  THE DISSENT OFFERS THE SAME ANALYSIS AS THE COURT OF APPEALS. 
AS ONE DISTINGUISHED COMMENTATOR HAS RECOGNIZED, THIS LINE OF REASONING
"STRETCHES) THE CONCEPT OF STATE ACTION VERY FAR."  JAFFE, THE
EDITORIAL RESPONSIBILITY OF THE BROADCASTER:  REFLECTIONS ON FAIRNESS
AND ACCESS, 85 HARV. L. REV. 768, 784 (1972).  THE NOTION THAT
BROADCASTERS ARE ENGAGED IN "GOVERNMENTAL ACTION" BECAUSE THEY ARE
LICENSED TO UTILIZE THE "PUBLIC" FREQUENCIES AND BECAUSE THEY ARE
REGULATED IS SUPERFICIALLY APPEALING BUT, AS PROFESSOR JAFFE OBSERVES,
"NOT ENTIRELY SATISFACTORY."  ID., AT 783. 

/15/  THE DISSENTING VIEW WOULD APPEAR TO "WANT TO HAVE IT BOTH
WAYS" ON THE QUESTION OF GOVERNMENT CONTROL OF THE BROADCAST MEDIA.  IN
FINDING GOVERNMENTAL ACTION, THE DISSENT STRESSES WHAT IS PERCEIVED AS
AN "ELABORATE STATUTORY SCHEME GOVERNING VIRTUALLY ALL ASPECTS OF THE
BROADCAST INDUSTRY."  "INDEED," THE DISSENT SUGGESTS, "FEDERAL AGENCY
REVIEW AND GUIDANCE OF BROADCASTER CONDUCT IS AUTOMATIC, CONTINUING,
AND PERVASIVE."  POST, AT 176 - 177.  YET LATER IN THE DISSENT OBJECTS
TO THE SUBSTANTIAL INDEPENDENCE AFFORDED BROADCASTERS IN COVERING
ISSUES OF PUBLIC IMPORTANCE.  THUS, IT IS SAID THAT "BROADCASTERS
RETAIN ALMOST EXCLUSIVE CONTROL OVER THE SELECTION OF ISSUES AND
VIEWPOINTS TO BE COVERED, THE MANNER OF PRESENTATION AND, PERHAPS MOST
IMPORTANT, WHO SHALL SPEAK."  POST, AT 186 - 187. 

/16/  SEE 25 F.C.C. 2D 216, 230, 234 - 235 (JOHNSON, DISSENTING). 

/17/  TO OVERCOME THIS INCONSISTENCY IT HAS BEEN SUGGESTED THAT A
"SUBMARKET RATE SYSTEM" BE ESTABLISHED FOR THOSE UNABLE TO AFFORD THE
NORMAL COST FOR AIR TIME.  SEE NOTE, 85 HARV. L. REV. 689, 695 - 696
(1972).  THAT PROPOSAL HAS BEEN CRITICIZED, WE THINK JUSTIFIABLY, AS
RAISING "INCREDIBLE ADMINISTRATIVE PROBLEMS."  L. JAFFE, THE EDITORIAL
RESPONSIBILITY OF THE BROADCASTER:  REFLECTIONS ON FAIRNESS AND ACCESS,
85 HARV. L. REV. 768, 789 (1972).     /18/  SEE N. 8, SUPRA. 

/19/  SEE REPORT ON EDITORIALIZING BY BROADCAST LICENSEES, 13
F.C.C., AT 1251 - 1252. 

/20/  SEE NOTE, 85 HARV. L. REV. 689, 697 (1973). 

/21/  DNC HAS URGED IN THIS COURT THAT WE AT LEAST RECOGNIZE A RIGHT
OF OUR NATIONAL PARTIES TO PURCHASE AIR TIME FOR THE PURPOSE OF
DISCUSSING PUBLIC ISSUES.  WE SEE NO PRINCIPLED MEANS UNDER THE FIRST
AMENDMENT OF FAVORING ACCESS BY ORGANIZED POLITICAL PARTIES OVER OTHER
GROUPS AND INDIVIDUALS. 

/22/  REPRINTED IN HEARINGS BEFORE THE SENATE COMMITTEE ON
INTERSTATE COMMERCE ON RADIO CONTROL, 69TH CONG., 1ST SESS., 54
(1926). 

/23/  LEE V. BOARD OF REGENTS OF STATE COLLEGES, 306 F. SUPP. 1097
(WD WIS. 1969), AFF'D, 441 F. 2D 1257 (CA7 1971); ZUCKER V. PANITZ, 299
F. SUPP. 102 (SDNY 1969); KISSINGER V. NEW YORK CITY TRANSIT AUTHORITY,
274 F. SUPP. 438 (SDNY 1967); HILLSIDE COMMUNITY CHURCH, INC. V. CITY
OF TACOMA, 76 WASH. 2D 63, 455 P. 2D 350 (1969); WIRTA V. ALAMEDA
CONTRA COSTA TRANSIT DISTRICT, 68 CAL. 2D 51, 434 P. 2D 982 (1967). 

/24/  SUBSEQUENT TO THE ANNOUNCEMENT OF THE COURT OF APPEALS'
DECISION, THE COMMISSION EXPANDED THE SCOPE OF THE INQUIRY TO COMPLY
WITH THE COURT OF APPEALS' MANDATE.  FURTHER NOTICE OF INQUIRY IN
DOCKET 19260, 33 F.C.C. 2D 554, 37 FED. REG. 3383.  AFTER WE GRANTED
CERTIORARI AND STAYED THE MANDATE OF THE COURT OF APPEALS, THE
COMMISSION WITHDREW THAT NOTICE OF AN EXPANDED INQUIRY AND CONTINUED
ITS STUDY AS ORIGINALLY PLANNED.  ORDER AND FURTHER NOTICE OF INQUIRY
IN DOCKET 12960, 33 F.C.C. 2D 798, 37 FED. REG. 4980. 

MR. JUSTICE STEWART, CONCURRING. 

WHILE I JOIN PARTS I, II, AND III OF THE COURT'S OPINION, MY VIEWS
CLOSELY APPROACH THOSE EXPRESSED BY MR. JUSTICE DOUGLAS IN
CONCURRENCE. 

THE FIRST AMENDMENT PROHIBITS THE GOVERNMENT FROM IMPOSING CONTROLS
UPON THE PRESS.  /1/  PRIVATE BROADCASTERS ARE SURELY PART OF THE
PRESS.  UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131, 166. 
YET HERE THE COURT OF APPEALS HELD, AND THE DISSENTERS TODAY AGREE,
THAT THE FIRST AMENDMENT REQUIRES THE GOVERNMENT TO IMPOSE CONTROLS
UPON PRIVATE BROADCASTERS--IN ORDER TO PRESERVE FIRST AMENDMENT
"VALUES."  THE APPELLATE COURT ACCOMPLISHED THIS STRANGE CONVOLUTION BY
THE SIMPLE DEVICE OF HOLDING THAT PRIVATE BROADCASTERS ARE GOVERNMENT. 
THIS IS A STEP ALONG A PATH THAT COULD EVENTUALLY LEAD TO THE
PROPOSITION THAT PRIVATE NEWSPAPERS "ARE" GOVERNMENT.  FREEDOM OF THE
PRESS WOULD THEN BE GONE.  IN ITS PLACE WE WOULD HAVE SUCH GOVERNMENTAL
CONTROLS UPON THE PRESS AS A MAJORITY OF THIS COURT AT ANY PARTICULAR
MOMENT MIGHT CONSIDER FIRST AMENDMENT "VALUES" TO REQUIRE.  IT IS A
FRIGHTENING SPECTER. 

        I 

THERE IS SOME FIRST-BLUSH APPEAL IN SEEKING OUT ANALOGIES FROM AREAS
OF THE LAW WHERE GOVERNMENTAL INVOLVEMENT ON THE PART OF OTHERWISE
PRIVATE PARTIES HAS LED THE COURT TO HOLD THAT CERTAIN ACTIVITIES OF
THOSE PARTIES WERE TANTAMOUNT TO GOVERNMENTAL ACTION.  /2/  THE
EVOLUTION OF THE "STATE ACTION" CONCEPT UNDER THE FOURTEENTH AMENDMENT
IS ONE AVAILABLE ANALOGY.  /3/  ANOTHER IS THE DECISION OF THIS COURT
IN PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451, WHERE A POLICY OF A
PRIVATELY OWNED BUT PUBLICLY REGULATED BUS COMPANY THAT HAD BEEN
APPROVED BY THE REGULATORY COMMISSION WAS HELD TO ACTIVATE FIRST
AMENDMENT REVIEW.  THE FIRST AMENDMENT HAS ALSO BEEN HELD APPLICABLE
WHERE PRIVATE PARTIES CONTROL ESSENTIALLY PUBLIC FORUMS.  AMALGAMATED
FOOD EMPLOYEES V. LOGAN VALLEY PLAZA, 391 U.S. 308, MARSH V. ALABAMA,
326 U.S. 501; CF. LLOYD CORP. V. TANNER, 407 U.S. 551. 

THE PROBLEM BEFORE US, HOWEVER, IS TOO COMPLEX TO ADMIT OF SOLUTION
BY SIMPLY ANALOGIZING TO CASES IN VERY DIFFERENT AREAS.  FOR WE DEAL
HERE WITH THE ELECTRONIC PRESS, THAT IS ITSELF PROTECTED FROM
GOVERNMENT BY THE FIRST AMENDMENT.  /4/  BEFORE WOODENLY ACCEPTING
ANALOGIES FROM CASES DEALING WITH QUASI-PUBLIC RACIAL DISCRIMINATION,
REGULATED INDUSTRIES OTHER THAN THE PRESS, OR "COMPANY TOWNS," WE MUST
LOOK MORE CLOSELY AT THE STRUCTURE OF BROADCASTING AND THE LIMITS OF
GOVERNMENTAL REGULATION OF LICENSEES. 

WHEN CONGRESS ENACTED THE RADIO ACT OF 1927, 44 STAT. 1162, AND
FOLLOWED IT WITH THE FEDERAL COMMUNICATIONS ACT OF 1934, 48 STAT. 1064,
47 U.S.C. ^ 151 ET SEQ., IT WAS RESPONDING TO A THEN-EVIDENT NEED TO
REGULATE ACCESS TO THE PUBLIC AIRWAVES.  NOT EVERY MEMBER OF THE PUBLIC
COULD BROADCAST OVER THE AIR AS HE CHOSE, SINCE THE SCARCITY OF
FREQUENCIES MADE THIS A SURE ROAD TO CHAOS.  /5/  THE SYSTEM SELECTED
BY THE CONGRESS WAS A HYBRID.  THE FEDERAL RADIO COMMISSION (SUCCEEDED
BY THE FEDERAL COMMUNICATIONS COMMISSION), WAS TO LICENSE BROADCASTERS
FOR NO MORE THAN THREE-YEAR PERIODS.  47 U.S.C. ^ 307 (D).  THE
LICENSEES, THOUGH SUBJECT TO SOME PUBLIC REGULATION, WERE TO BE PRIVATE
COMPANIES. 

SCARCITY MEANT MORE THAN A NEED TO LIMIT ACCESS.  BECAUSE ACCESS WAS
TO BE LIMITED, IT WAS THOUGHT NECESSARY FOR THE REGULATORY APPARATUS TO
TAKE INTO ACCOUNT THE PUBLIC INTEREST IN OBTAINING "THE BEST
PRACTICABLE SERVICE TO THE COMMUNITY REACHED BY HIS (THE LICENSEE'S)
BROADCASTS."  FCC V. SANDERS BROTHERS RADIO STATION, 309 U.S. 470,
475.  PUBLIC REGULATION HAS NOT, THEN, BEEN MERELY A MATTER OF
ELECTROMAGNETIC ENGINEERING FOR THE SALKE OF KEEPING SIGNALS CLEAR.  IT
HAS ALSO INCLUDED SOME REGULATION OF PROGRAMMING.  WRITING IN DEFENSE
OF COMMISSION REGULATIONS REGARDING CHAIN BROADCASTING, MR. JUSTICE
FRANKFURTER SAID:  "THESE PROVISIONS (OF THE ACT), INDIVIDUALLY AND IN
THE AGGREGATE, PRECLUDE THE NOTION THAT THE COMMISSION IS EMPOWERED TO
DEAL ONLY WITH TECHNICAL AND ENGINEERING IMPEDIMENTS TO THE 'LARGER AND
MORE EFFECTIVE USE OF RADIO IN THE PUBLIC INTEREST.'"  NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 217. 

OVER TIME, FEDERAL REGULATION OF BROADCASTING IN THE PUBLIC INTEREST
HAS BEEN EXTENSIVE, AND, PRO TANTO, HAS RIGHTLY OR WRONGLY BEEN HELD TO
BE TOLERABLE UNDER THE FIRST AMENDMENT.  WE NOW HAVE THE FAIRNESS
DOCTRINE, WITH ITS PERSONAL ATTACK, EDITORIAL REPLY, AND FAIR-COVERAGE
OF-CONTROVERSIAL-ISSUE REQUIREMENTS.  /6/  IN RED LION BROADCASTING CO.
V. FCC, 395 U.S. 367, THIS DOCTRINE WAS HELD TO CONSTITUTE PERMISSIBLE
GOVERNMENTAL REGULATION OF BROADCASTERS, DESPITE THE FIRST AMENDMENT. 
THE COURT SAID: 

     "WHERE THERE ARE SUBSTANTIALLY MORE INDIVIDUALS WHO WANT TO

  BROADCAST THAN THERE ARE FREQUENCIES TO ALLOCATE, IT IS IDLE TO

  POSIT AN UNABRIDGEABLE FIRST AMENDMENT RIGHT TO BROADCAST

  COMPARABLE TO THE RIGHT OF EVERY INDIVIDUAL TO SPEAK, WRITE, OR

  PUBLISH . . . . .

 .          .          .          .          . 

     ". . . BECAUSE OF THE SCARCITY OF RADIO FREQUENCIES, THE

  GOVERNMENT IS PERMITTED TO PUT RESTRAINTS ON LICENSEES IN FAVOR

  OF OTHERS WHOSE VIEWS SHOULD BE EXPRESSED ON THIS UNIQUE MEDIUM. 

  BUT THE PEOPLE AS A WHOLE RETAIN THEIR INTEREST IN FREE SPEECH BY

  RADIO AND THEIR COLLECTIVE RIGHT TO HAVE THE MEDIUM FUNCTION

  CONSISTENTLY WITH THE ENDS AND PURPOSES OF THE FIRST AMENDMENTS. 

  IT IS THE RIGHT OF THE VIEWERS AND LISTENERS, NOT THE RIGHT OF

  THE BROADCASTERS, WHICH IS PARAMOUNT."  ID., AT 388, 390. 

THE FAIRNESS DOCTRINE HAS BEEN HELD APPLICABLE TO PAID ADVERTISING AS
WELL AS TO OTHER PROGRAMMING, BANZHAF V. FCC, 132 U.S. APP. D.C. 14,
405 F. 2D 1082.  AND THE PUBLIC INTEREST IN BROADCASTING HAS BEEN
RECOGNIZED AS A RATIONALE FOR LIBERALIZED STANDING ON THE PART OF
LISTENER GROUPS IN COMMISSION LICENSING PROCEEDINGS.  OFFICE OF
COMMUNICATION OF UNITED CHURCH OF CHRIST V. FCC, 123 U.S. APP. D.C.
328, 359 F. 2D 994. 

THROUGHOUT THIS LONG HISTORY OF REGULATION, HOWEVER, IT HAS BEEN
RECOGNIZED THAT BROADCASTERS RETAIN IMPORTANT FREEDOMS, AND THAT THE
COMMISSION'S REGULATORY POWER HAS LIMITS.  QUITE APART FROM WHAT MAY BE
REQUIRED BY THE FIRST AMENDMENT ITSELF, THE REGULATORY LEGISLATION
MAKES CLEAR WHAT SOME OF THESE FREEDOMS ARE.  SECTION 3 (H) OF THE ACT,
47 U.S.C. ^ 153 (H), PROVIDES THAT BROADCASTERS ARE NOT TO BE TREATED
AS COMMON CARRIERS.  WERE BROADCASTERS COMMON CARRIERS WITHIN THE
MEANING OF THE ACT, THEY WOULD BE SUBJECT TO 47 U.S.C. ^^ 201, 202. 

     "(A) IT SHALL BE THE DUTY OF EVERY COMMON CARRIER ENGAGED IN

  INTERSTATE OR FOREIGN COMMUNICATION BY WIRE OR RADIO TO FURNISH

  SUCH COMMUNICATION SERVICE UPON REASONABLE REQUEST THERFOR . . .

  ." 


     "(A) IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER TO MAKE ANY

  UNJUST OR UNREASONABLE DISCRIMINATION IN CHARGES, PRACTICES,

  CLASSIFICATIONS, REGULATIONS, FACILITIES, OR SERVICES FOR OR IN

  CONNECTION WITH LIKE COMMUNICATION SERVICE, DIRECTLY OR

  INDIRECTLY, BY ANY MEANS OR DEVICE, OR TO MAKE OR GIVE ANY UNDUE

  OR UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON,

  CLASS OF PERSONS, OR LOCALITY, OR TO SUBJECT ANY PARTICULAR

  PERSON, CLASS OF PERSONS, OR LOCALITY TO ANY UNDUE OR

  UNREASONABLE PREJUDICE OR DISADVANTAGE." 

THE ACT ALSO SPECIFICALLY GIVES LICENSEES "FREEDOM OF SPEECH": 

     "NOTHING IN THIS CHAPTER SHALL BE UNDERSTOOD OR CONSTRUED TO

  GIVE THE COMMISSION THE POWER OF CENSORSHIP OVER THE RADIO

  COMMUNICATIONS OR SIGNALS TRANSMITTED BY ANY RADIO STATION, AND

  NO REGULATION OR CONDITION SHALL BE PROMULGATED OR FIXED BY THE

 COMMISSION WHICH SHALL INTERFERE WITH THE RIGHT OF FREE SPEECH BY

  MEANS OF RADIO COMMUNICATION."  47 U.S.C. ^ 326. 

THUS, WHEN EXAMINED AS A WHOLE, THE FEDERAL COMMUNICATIONS ACT
ESTABLISHES A SYSTEM OF PRIVATELY OWNED BROADCAST LICENSEES.  THESE
LICENSEES, THOUGH REGULATED BY THE COMMISSION UNDER A FAIRLY BROAD
"PUBLIC INTEREST" STANDARD, HAVE, QUITE APART FROM WHATEVER ADDITIONAL
PROTECTIONS THE FIRST AMENDMENT MAY PROVIDE, IMPORTANT STATUTORY
FREEDOMS IN CONDUCTING THEIR PROGRAMMING. 

IN RED LION, SUPRA, THIS COURT HELD THAT, DESPITE THE FIRST
AMENDMENT, THE COMMISSION MAY IMPOSE A SO-CALLED FAIRNESS DOCTRINE UPON
BROADCASTERS, REQUIRING THEM TO PRESENT BALANCED COVERAGE OF VARIOUS
AND CONFLICTING VIEWS ON ISSUES OF PUBLIC IMPORTANCE.  I AGREED WITH
THE COURT IN RED LION, ALTHOUGH WITH CONSIDERABLE DOUBT, BECAUSE I
THOUGHT THAT THAT MUCH GOVERNMENT REGULATION OF PROGRAM CONTENT WAS
WITHIN THE OUTER LIMITS OF FIRST AMENDMENT TOLERABILITY.  WERE THE
COMMISSION TO REQUIRE BROADCASTERS TO ACCEPT SOME AMOUNT OF EDITORIAL
ADVERTISING AS PART OF THE PUBLIC INTEREST MANDATE UPON WHICH THEIR
LICENSES ARE CONDITIONAL, THE ISSUE BEFORE US WOULD BE IN THE SAME
POSTURE AS WAS THE FAIRNESS DOCTRINE ITSELF IN RED LION, AND WE WOULD
HAVE TO DETERMINE WHETHER THIS ADDITIONAL GOVERNMENTAL CONTROL OF
BROADCASTERS WAS CONSISTENT WITH THE STATUTE AND TOLERABLE UNDER THE
FIRST AMENDMENT.  HERE, HOWEVER, THE COMMISSION IMPOSED NO SUCH
REQUIREMENT, BUT LEFT PRIVATE BROADCASTERS FREE TO ACCEPT OR REJECT
SUCH ADVERTISING AS THEY SAW FIT.  THE COURT OF APPEALS HELD THAT THE
FIRST AMENDMENT COMPELS THE COMMISSION TO REQUIRE BROADCASTERS TO
ACCEPT SUCH ADVERTISING, BECAUSE IT EQUATED BROADCASTER ACTION WITH
GOVERNMENTAL ACTION.  THIS HOLDING NOT ONLY RAISES A SERIOUS STATUTORY
QUESTION UNDER ^ 3 (H) OF THE ACT, WHICH PROVIDES THAT BROADCASTERS ARE
NOT COMMON CARRIERS, BUT SEEMS TO ME TO REFLECT AN EXTRAORDINARILY ODD
VIEW OF THE FIRST AMENDMENT. 

THE DISSENTING OPINION TODAY ARGUES, IN SUPPORT OF THE DECISION OF
THE COURT OF APPEALS, THAT ONLY A LIMITED RIGHT OF ACCESS IS SOUGHT BY
THE RESPONDENTS AND REQUIRED BY THE FIRST AMENDMENT, AND THAT SUCH A
LIMITED RIGHT WOULD NOT TURN BROADCASTERS INTO COMMON CARRIERS.  THE
RESPONDENTS ARGUE, SOMEWHAT DIFFERENTLY, THAT THE CONSTITUTION REQUIRES
THAT ONLY "RESPONSIBLE" INDIVIDUALS AND GROUPS BE GIVEN THE RIGHT TO
PURCHASE ADVERTISING.  THESE POSITIONS ARE SAID TO BE ARRIVED AT BY
SOMEHOW BALANCING "COMPETING FIRST AMENDMENT VALUES."  BUT IF PRIVATE
BROADCASTERS ARE GOVERNMENT, HOW CAN THE FIRST AMENDMENT GIVE ONLY A
LIMITED RIGHT TO THOSE WHO WOULD SPEAK?  SINCE WHEN HAS THE FIRST
AMENDMENT GIVEN GOVERNMENT THE RIGHT TO SILENCE ALL SPEAKERS IT DOES
NOT CONSIDER "RESPONSIBLE?" 

THE FIRST AMENDMENT PROTECTS THE PRESS FROM GOVERNMENTAL
INTERFERENCE; IT CONFERS NO ANALOGOUS PROTECTION ON THE GOVERNMENT. 
/7/  TO HOLD THAT BROADCASTER ACTION IS GOVERNMENTAL ACTION WOULD THUS
SIMPLY STRIP BROADCASTERS OF THEIR OWN FIRST AMENDMENT RIGHTS.  THEY
WOULD BE OBLIGATED TO GRANT THE DEMANDS OF ALL CITIZENS TO BE HEARD
OVER THE AIR, SUBJECT ONLY TO REASONABLE REGULATIONS AS TO "TIME, PLACE
AND MANNER."  CF. POLICE DEPT. OF CHICAGO V. MOSELY, 408 U.S. 92, 98;
COX V. LOUISIANA, 379 U.S. 536, 554; POULOS V. NEW HAMPSHIRE, 345 U.S.
395; COX V. NEW HAMPSHIRE, 312 U.S. 569.  IF, AS THE DISSENT TODAY
WOULD HAVE IT, THE PROPER ANALOGY IS TO PUBLIC FORUMS /8/  --THAT IS,
IF BROADCASTERS ARE GOVERNMENT FOR FIRST AMENDMENT PURPOSES--THEN
BROADCASTERS ARE INEVITABLY DRAWN TO THE POSITION OF COMMON CARRIERS. 
FOR THIS IS PRECISELY THE STATUS OF GOVERNMENT WITH RESPECT TO PUBLIC
FORUMS--A STATUS MANDATED BY THE FIRST AMENDMENT. 

TO HOLD THAT BROADCASTER ACTION IS GOVERNMENTAL ACTION WOULD THUS
PRODUCE A RESULT WHOLLY INIMICAL TO THE BROADCASTERS' OWN FIRST
AMENDMENT RIGHTS, AND WHOLLY AT ODDS WITH THE BROADCASTING SYSTEM
ESTABLISHED BY CONGRESS AND WITH OUR MANY DECISIONS /10/ APPROVING
THOSE LEGISLATIVE PROVISIONS.  /11/  AS JUDGE MCGOWAN WROTE, DISSENTING
FROM THE JUDGMENT OF THE COURT OF APPEALS IN THESE CASES, 

     "THIS IS THE SYSTEM WHICH CONGRESS HAS, WISELY OR NOT,
PROVIDED

  AS THE ALTERNATIVE TO PUBLIC OWNERSHIP AND OPERATION OF RADIO AND

  TELEVISION COMMUNICATIONS FACILITIES.  THIS APPROACH HAS NEVER

  BEEN SOUGHT TO BE OTHER THAN WITHIN THE PERMISSIBLE LIMITS OF

  CONSTITUTIONAL CHOICE."  146 U.S. APP. D.C. 181, 205, 450 F. 2D

642, 666. 

        II     PART IV OF THE COURT'S OPINION, AS I UNDERSTAND IT,
SEEMS PRIMARILY TO DEAL WITH THE RESPONDENTS' STATUTORY ARGUMENT--THAT
THE OBLIGATION OF BROADCASTERS TO OPERATE IN THE "PUBLIC INTEREST"
SUPPORTS THE JUDGMENT OF THE COURT OF APPEALS.  YET TWO OF MY
CONCURRING BRETHREN UNDERSTAND PART IV AS A DISCUSSION OF THE FIRST
AMENDMENT ISSUE THAT WOULD EXIST IN THESE CASES WERE THE ACTION OF
BROADCASTERS TO BE EQUATED WITH GOVERNMENTAL ACTION.  SO, ACCORDING TO
MY BROTHER BLACKMUN, "THE GOVERNMENTAL ACTION ISSUE DOES NOT AFFECT THE
OUTCOME OF THIS CASE."  POST, AT 148.  THE COURT OF APPEALS ALSO
CONFLATED THE CONSTITUTIONAL AND STATUTORY ISSUES IN THESE CASES.  IT
REASONED THAT WHETHER ITS DECISION "IS STYLED AS A 'FIRST AMENDMENT
DECISION' OR AS A DECISION INTERPRETING THE FAIRNESS AND PUBLIC
INTEREST REQUIREMENTS 'IN LIGHT OF THE FIRST AMENDMENT' MATTERS
LITTLE."  146 U.S. APP. D.C., AT 188, 450 F. 2D, AT 649. 

I FIND THIS REASONING QUITE WRONG AND WHOLLY DISAGREE WITH IT, FOR
THE SIMPLE REASON THAT THE FIRST AMENDMENT AND THE PUBLIC INTEREST
STANDARD OF THE STATUTE ARE NOT COEXTENSIVE.  THE TWO ARE RELATED IN
THE SENSE THAT THE COMMISSION COULD NOT "IN THE PUBLIC INTEREST" PLACE
A REQUIREMENT ON BROADCASTERS THAT CONSTITUTED A VIOLATION OF THEIR
FIRST AMENDMENT RIGHTS.  THE TWO ARE ALSO RELATED IN THE SENSE THAT
BOTH FOSTER FREE SPEECH.  BUT WE HAVE HELD THAT THE COMMISSION CAN
UNDER THE STATUTE REQUIRE BROADCASTERS TO DO CERTAIN THINGS "IN THE
PUBLIC INTEREST" THAT THE FIRST AMENDMENT WOULD NOT REQUIRE IF THE
BROADCASTERS WERE THE GOVERNMENT.  FOR EXAMPLE, THE FAIRNESS DOCTRINE
IS AN ASPECT OF THE "PUBLIC INTEREST" REGULATION OF BROADCASTERS THAT
WOULD NOT BE COMPELLED OR EVEN PERMITTED BY THE FIRST AMENDMENT ITSELF
IF BROADCASTERS WERE THE GOVERNMENT.  /12/ 

IF THE "PUBLIC INTEREST" LANGUAGE OF THE STATUTE WERE INTENDED TO
ENACT THE SUBSTANCE OF THE FIRST AMENDMENT, A DISCUSSION OF WHETHER
BROADCASTER ACTION IS GOVERNMENTAL ACTION WOULD INDEED BE SUPERFLUOUS. 
FOR ANYTHING THAT GOVERNMENT COULD NOT DO BECAUSE OF THE FIRST
AMENDMENT, THE BROADCASTERS COULD NOT DO UNDER THE AMENDMENT, THE
BROADCASTERS COULD NOT DO UNDER THE STATUTE.  BUT THIS THEORY PROVES
FAR TOO MUCH, SINCE IT WOULD MAKE THE STATUTORY SCHEME, WITH ITS
EMPHASIS ON BROADCASTER DISCRETION AND ITS PROSCRIPTION ON INTERFERENCE
WITH "THE RIGHT OF FREE SPEECH BY MEANS OF RADIO COMMUNICATION," A
NULLITY.  WERE THE GOVERNMENT REALLY OPERATING THE ELECTRONIC PRESS, IT
WOULD, AS MY BROTHER DOUGLAS POINTS OUT, BE PREVENTED BY THE FIRST
AMENDMENT FROM SELECTION OF BROADCAST CONTENT AND THE EXERCISE OF
EDITORIAL JUDGMENT.  IT WOULD NOT BE PERMITTED IN THE NAME OF
"FAIRNESS" TO DENY TIME TO ANY PERSON OR GROUP ON THE GROUNDS THAT
THEIR VIEWS HAD BEEN HEARD "ENOUGH."  YET BROADCASTERS PERFORM
PRECISELY THESE FUNCTIONS AND ENJOY PRECISELY THESE FREEDOMS UNDER THE
ACT.  THE CONSTITUTIONAL AND STATUTORY ISSUES IN THESE CASES ARE THUS
QUITE DIFFERENT. 

IN EVALUATING THE STATUTORY CLAIMS, THE STARTING POINT MUST BE THE
"VENERABLE PRINCIPLE THAT THE CONSTRUCTION OF A STATUTE BY THOSE
CHARGED WITH ITS EXECUTION SHOULD BE FOLLOWED UNLESS THERE ARE
COMPELLING INDICATIONS THAT IT IS WRONG . . . ."  RED LION, SUPRA, AT
381. 

THOUGH I HAVE NO DOUBT THAT THE RESPONDENTS HERE WERE ATTEMPTING TO
COMMUNICATE WHAT THEY CONSIDERED TO BE IMPORTANT MESSAGES, IT DOES NOT
FOLLOW THAT THE COMMISSION ERRED WHEN IT REFUSED TO REQUIRE EVERY
BROADCASTER TO COMMUNICATE THOSE MESSAGES.  CONTRARY TO WHAT IS SAID IN
DISSENT TODAY, IT IS NOT THE CASE THAT A SELLER OF GOODS IS GRANTED
INSTANT ACCESS TO THE MEDIA, WHILE SOMEONE "SEEKING TO DISCUSS WAR,
PEACE, POLLUTION, OR THE SUFFERING OF THE POOR IS DENIED THIS RIGHT TO
SPEAK."  POST, AT 200.  THERE IS NO INDICATION THAT THE THOUSANDS OF
BROADCASTERS REGULATED BY THE COMMISSION HAVE ANYTHING LIKE A UNIFORM
POLICY OF TURNING DOWN "CONTROVERSIAL" OR "EDITORIAL" ADVERTISING.  IN
THE CASES BEFORE US, THE BUSINESS EXECUTIVES' SPOT ADVERTISEMENTS WERE
REJECTED BY A SINGLE RADIO STATION.  OF THE THREE TELEVISION NETWORKS,
ONLY ONE TURNED DOWN THE DEMOCRATIC NATIONAL COMMITTEE'S REQUEST FOR
AIR TIME.  WE ARE TOLD THAT MANY, IF NOT MOST BROADCASTERS DO ACCEPT
ADVERTISING OF THE TYPE AT ISSUE HERE.  THIS VARIATION IN BROADCASTER
POLICY REFLECTS THE VERY KIND OF DIVERSITY AND COMPETITION THAT BEST
PROTECTS THE FREE FLOW OF IDEAS UNDER A SYSTEM OF BROADCASTING
PREDICATED ON PRIVATE MANAGEMENT.  /13/ 

EVEN THOUGH IT WOULD BE IN THE PUBLIC INTEREST FOR THE RESPONDENTS'
ADVERTISEMENTS TO BE HEARD, IT DOES NOT FOLLOW THAT THE PUBLIC INTEREST
REQUIRES EVERY BROADCASTER TO BROADCAST THEM.  AND IT CERTAINLY DOES
NOT FOLLOW THAT THE PUBLIC INTEREST WOULD BE SERVED BY FORCING EVERY
BROADCASTER TO ACCEPT ANY PARTICULAR KIND OF ADVERTISING IN THE LIGHT
OF THESE DIVERSE BROADCASTER POLICIES--AND THE SERIOUS FIRST AMENDMENT
PROBLEM THAT A CONTRARY RULING WOULD HAVE PRESENTED--THERE ARE SURELY
NO "COMPELLING INDICATIONS" THAT THE COMMISSION MISUNDERSTOOD ITS
STATUTORY RESPONSIBILITY. 

        III 

THERE IS NEVER A PAUCITY OF ARGUMENTS IN FAVOR OF LIMITING THE
FREEDOM OF THE PRESS.  THE COURT OF APPEALS CONCLUDED THAT GREATER
GOVERNMENT CONTROL OF PRESS FREEDOM IS ACCEPTABLE HERE BECAUSE OF THE
SCARCITY OF FREQUENCIES FOR BROADCASTING.  BUT THERE ARE MANY MORE
BROADCASTING STATIONS THAN THERE ARE DAILY NEWSPAPERS.  /14/  AND IT
WOULD REQUIRE NO GREAT INGENUITY TO ARGUE THAT NEWSPAPERS TOO ARE
GOVERNMENT.  AFTER ALL, NEWSPAPERS GET GOVERNMENT MAIL SUBSIDIES AND A
LIMITED ANTITRUST IMMUNITY.  /15/  THE REASONING OF THE COURT OF
APPEALS WOULD THEN LEAD TO THE CONCLUSION THAT THE FIRST AMENDMENT
REQUIRES THAT NEWSPAPERS, TOO, BE COMPELLED TO OPEN THEIR PAGES TO ALL
COMERS. 

PERHAPS I OVERSTATE THE LOGIC OF THE OPINION OF THE COURT OF
APPEALS.  PERHAPS ITS "BALANCING" OF THE FIRST AMENDMENT "VALUES" WOULD
REQUIRE NO MORE THAN THAT NEWSPAPERS BE COMPELLED TO GIVE "LIMITED"
ACCESS TO DISSIDENT VOICES, AND THEN ONLY IF THOSE VOICES WERE
"RESPONSIBLE."  AND PERHAPS IT WOULD REQUIRE THAT SUCH ACCESS BE
COMPELLED ONLY WHEN THERE WAS A SINGLE NEWSPAPER IN A PARTICULAR
COMMUNITY.  BUT IT WOULD BE A CLOSE QUESTION FOR ME WHICH OF THESE
VARIOUS ALTERNATIVE RESULTS WOULD BE MORE GROSSLY VIOLATIVE OF THE
FIRST AMENDMENT'S GUARANTEE OF A FREE PRESS.  FOR THAT GUARANTEE GIVES
EVERY NEWSPAPER THE LIBERTY TO PRINT WHAT IT CHOOSES AND REJECT WHAT IT
CHOOSES, FREE FROM THE INTRUSIVE EDITORIAL THUMB OF GOVERNMENT. 

I PROFOUNDLY TRUST THAT NO SUCH REASONING AS I HAVE ATTRIBUTED TO
THE COURT OF APPEALS WILL EVER BE ADOPTED BY THIS COURT.  AND IF I HAVE
EXAGGERATED, IT IS ONLY TO MAKE CLEAR THE DANGERS THAT BESET US WHEN WE
LOSE SIGHT OF THE FIRST AMENDMENT ITSELF, AND MARCH FORTH IN BLIND
PURSUIT OF ITS "VALUES." 

THOSE WHO WROTE OUR FIRST AMENDMENT PUT THEIR FAITH IN THE
PROPOSITION THAT A FREE PRESS IS INDISPENSABLE TO A FREE SOCIETY.  THEY
BELIEVED THAT "FAIRNESS" WAS FAR TOO FRAGILE TO BE LEFT FOR A
GOVERNMENT BUREAUCRACY TO ACCOMPLISH.  HISTORY HAS MANY TIMES CONFIRMED
THE WISDOM OF THEIR CHOISE. 

THIS COURT WAS PERSUADED IN RED LION TO ACCEPT THE COMMISSION'S VIEW
THAT A SO-CALLED FAIRNESS DOCTRINE WAS REQUIRED BY THE UNIQUE
ELECTRONIC LIMITATIONS OF BROADCASTING, AT LEAST IN THE THEN-EXISTING
STATE OF THE ART. RIGHTLY OR WRONGLY, WE THERE DECIDED THAT
BROADCASTERS' FIRST AMENDMENT RIGHTS WERE "ABRIDGEABLE."  BUT SURELY
THIS DOES NOT MEAN THAT THOSE RIGHTS ARE NONEXISTENT.  EVEN IF ALL ELSE
WERE IN EQUIPOISE, AND THE DECISION OF THE ISSUE BEFORE US WERE FINALLY
O REST UPON FIRST AMENDMENT "VALUES" ALONE, I COULD NOT AGREE WITH THE
COURT OF APPEALS.  FOR IF THOSE "VALUES" MEAN ANYTHING, THEY SHOULD
MEAN AT LEAST THIS:  IF WE MUST CHOOSE WHETHER EDITORIAL DECISIONS ARE
TO BE MADE IN THE FREE JUDGMENT OF INDIVIDUAL BROADCASTERS, OR IMPOSED
BY BUREAUCRATIC FIAT, THE CHOICE MUST BE FOR FREEDOM. 

/1/  U.S. CONST., AMEND. I PROVIDES, IN PERTINENT PART, THAT
"CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE FREEDOM OF SPEECH, OR
OF THE PRESS . . . ." 

/2/  SEE AMALGAMATED FOOD EMPLOYEES V. LOGAN VALLEY PLAZA, 391 U.S.
308; RAILWAY EMPLOYES' DEPT. V. HANSON, 351 U.S. 225; PUBLIC UTILITIES
COMM'N V. POLLAK, 343 U.S. 451; MARSH V. ALABAMA, 326 U.S. 501. 

/3/  "CONDUCT THAT IS FORMALLY 'PRIVATE' MAY BECOME SO ENTWINED WITH
GOVERNMENTAL POLICIES OR SO IMPREGNATED WITH A GOVERNMENTAL CHARACTER
AS TO BECOME SUBJECT TO THE CONSTITUTIONAL LIMITATIONS PLACED UPON
STATE ACTION."  EVANS V. NEWTON, 382 U.S. 296, 299.  EARLIER, IN BURTON
V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715, THE COURT HELD THAT A
PRIVATELY OWNED RESTAURANT LOCATED WITHIN A PUBLIC PARKING GARAGE WAS
SUFFICIENTLY INVOLVED WITH STATE AUTHORITY TO BRING ITS RACIALLY
DISCRIMINATORY ACTIONS WITHIN THE PROSCRIPTION OF THE FOURTEENTH
AMENDMENT. 

/4/  SEE, E. G., UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S.
131, 166.  THE FEDERAL COMMUNICATIONS ACT ALSO PROHIBITS THE COMMISSION
FROM INTERFERING WITH "THE RIGHT OF FREE SPEECH BY MEANS OF RADIO
COMMUNICATION."  47 U.S.C. ^ 326. 

/5/  FOR A HISTORY OF REGULATORY LEGISLATION REGARDING BROADCASTERS,
SEE RED LION BROADCASTING CO. V. FCC, 395 U.S. 367, 375 - 386; NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 210 - 214. 

/6/  THE PERSONAL ATTACK AND EDITORIAL REPLY RULES APPEAR AT 47 CFR
^^ 73.123, 73.300, 73.598, 73.679.  THE PUBLIC ISSUE ASPECT OF THE
FAIRNESS DOCTRINE REQUIRES THE BROADCASTER TO GIVE ADEQUATE COVERAGE TO
PUBLIC ISSUES, FAIRLY REFLECTING DIVERGENT VIEWS.  UNITED BROADCASTING
CO., 10 F.C.C. 515; NEW BROADCASTING CO., 6 P & F RADIO REG. 258; SEE
GENERALLY APPLICABILITY OF THE FAIRNESS DOCTRINE IN THE HANDLING OF
CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE, 29 FED. REG. 10415.  THIS
COVERAGE MUST BE PROVIDED AT THE BROADCASTER'S OWN EXPENSE IF
NECESSARY, CULLMAN BROADCASTING CO., 25 P & F RADIO REG. 895, AND THE
DUTY MUST BE MET BY PROVIDING PROGRAMMING OBTAINED AT THE LICENSEE'S
OWN INITIATIVE IF IT IS AVAILABLE FROM NO OTHER SOURCE.  JOHN J.
DEMPSEY, 6 P & F RADIO REG. 615. 

/7/  GOVERNMENT IS NOT RESTRAINED BY THE FIRST AMENDMENT FROM
CONTROLLING ITS OWN EXPRESSION, CF. NEW YORK TIMES CO. V. UNITED
STATES, 403 U.S. 713, 728 - 729 (STEWART, J., CONCURRING).  AS
PROFESSOR THOMAS EMERSON HAS WRITTEN, "THE PURPOSE OF THE FIRST
AMENDMENT IS TO PROTECT PRIVATE EXPRESSION AND NOTHING IN THE GUARANTEE
PRECLUDES THE GOVERNMENT FROM CONTROLLING ITS OWN EXPRESSION OR THAT OF
ITS AGENTS."  THE SYSTEM OF FREEDOM OF EXPRESSION 700 (1970). 

/8/  "(THE RIGHT TO SPEAK CAN FLOURISH ONLY IF IT IS ALLOWED TO
OPERATE IN AN EFFECTIVE FORUM--WHETHER IT BE A PUBLIC PARK, A
SCHOOLROOM, A TOWN MEETING HALL, A SOAPBOX, OR A RADIO AND TELEVISION
FREQUENCY."  POST, AT 193. 

/9/  PROFESSOR EMERSON HAS RECOGNIZED THE SCOPE OF THE "ACCESS"
ARGUMENT:  "THE LICENSEE THEREFORE CAN ONLY BE CONSIDERED AS THE AGENT
OF THE GOVERNMENT, OR TRUSTEE OF THE PUBLIC, IN A PROCESS OF FURTHER
ALLOCATION.  HENCE THE LICENSEE WOULD HAVE NO DIRECT FIRST AMENDMENT
RIGHTS OF HIS OWN, EXCEPT AS TO HIS OWN EXPRESSION."  SUPRA, N. 7, AT
663. 

THOUGH THE LICENSEE WOULD BE FREE TO SAY WHAT IT WISHED DURING ITS
OWN BROADCASTING, WHATEVER THAT MIGHT MEAN, IT SEEMS CLEAR THAT THE
LICENSEE WOULD HAVE NO SPECIAL CLAIM TO BROADCAST TIME AND WOULD LOSE
ENTIRELY THE FREEDOM TO PROGRAM AND SCHEDULE ACCORDING TO ITS OWN
JUDGMENT, VALUES, AND PRIORITIES.  CF. PUBLIC DEPT. OF CHICAGO V.
MOSLEY, 408 U.S. 92, 98; COX V. LOUISIANA, 379 U.S. 536, 554; POULOS V.
NEW HAMPSHIRE, 345 U.S. 395; COX V. NEW HAMPSHIRE, 312 U.S. 569. 
LICENSEES WOULD BE FORCED TO DEVELOP A PROCEDURALLY FAIR AND
SUBSTANTIVELY NONDISCRIMINATORY SYSTEM FOR CONTROLLING ACCESS, AND IN
MY VIEW THIS IS PRECISELY WHAT CONGRESS INTENDED TO AVOID THROUGH ^ 3
(H) OF THE ACT. 

/10/  RED LION BROADCASTING CO. V. FCC, 395 U.S. 367; NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190; FCC V. SANDERS
BROTHERS RADIO STATION, 309 U.S. 470; FCC V. POTTSVILLE BROADCASTING
CO., 309 U.S. 134. 

/11/  NONE OF THIS SUGGESTS ANY DISAGREEMENT ON MY PART WITH THE
EVOLUTION OF "STATE ACTION" UNDER THE FOURTEENTH AMENDMENT.  I
RECOGNIZE THAT IF MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163, WERE
RELEVANT, THE FACT THAT THE COMMISSION CONSIDERED AND REJECTED A
CHALLENGE TO BROADCASTER POLICY MIGHT BE SUFFICIENT TO CONSTITUTE
"STATE ACTION."  THUS, IN FACT, WAS THE BASIS OF THE COURT'S DECISION
IN PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451. 

/12/  THE BASIS FOR A FAIRNESS DOCTRINE IS STATUTORY, NOT
CONSTITUTIONAL.  AS THE COURT SAID IN RED LION: 

"IN LIGHT OF THE FACT THAT THE 'PUBLIC INTEREST' IN BROADCASTING
CLEARLY ENCOMPASSES THE PRESENTATION OF VIGOROUS DEBATE OF
CONTROVERSIAL ISSUES OF IMPORTANCE AND CONCERN TO THE PUBLIC; THE FACT
THAT THE FCC HAS RESTED UPON THAT LANGUAGE FROM ITS VERY INCEPTION A
DOCTRINE THAT THESE ISSUES MUST BE DISCUSSED, AND FAIRLY; AND THE FACT
THAT CONGRESS HAS ACKNOWLEDGED THAT THE ANALOGOUS PROVISIONS OF ^ 315
ARE NOT PRECLUSIVE IN THIS AREA, AND KNOWINGLY PRESERVED THE FCC'S
COMPLEMENTARY EFFORTS, WE THINK THE FAIRNESS DOCTRINE AND ITS COMPONENT
PERSONAL ATTACK AND POLITICAL EDITORIALIZING REGULATIONS ARE A
LEGITIMATE EXERCISE OF CONGRESSIONALLY DELEGATED AUTHORITY."  395 U.S.,
AT 385.     /13/  THE DEMOCRATIC NATIONAL COMMITTEE CITED THIS VERY
LACK OF UNIFORMITY AS A REASON FOR SEEKING A DECLARATORY RULING FROM
THE COMMISSION.  THERE WAS TOO MUCH DIVERSITY, IT THOUGHT, FOR IT TO
PLAN EFFECTIVELY AN ADVERTISING CAMPAIGN.  IN THE DNC'S REQUEST FOR A
DECLARATORY RULING BEFORE THE COMMISSION, IT STATED: "IN ADDITION TO
THE THREE NATIONAL COMMERCIAL NETWORKS, AS OF APRIL 1, 1970, THERE
WERE, ON THE AIR, 509 COMMERCIAL VHF TELEVISION STATIONS, 180
COMMERCIAL UHF STATIONS, 4,280 STANDARD BROADCAST STATIONS, AND 2,111
COMMERCIAL FM STATIONS.  WHILE SEVERAL OF THESE STATIONS HAVE COMMON
OWNERS, IT DOES NOT NECESSARILY FOLLOW THAT EVERY STATION OWNED BY AN
INDIVIDUAL OR GROUP WOULD FOLLOW THE SAME POLICIES." 

/14/  THERE ARE 1,792 DAILY NEWSPAPERS IN THE UNITED STATES.  AYER
DIRECTORY OF PUBLICATIONS VIII (1973).  COMPARE THE NUMBER OF
BROADCASTERS, N. 13, SUPRA. 

/15/  NEWSPAPERS AND OTHER PERIODICALS RECEIVE A GOVERNMENT SUBSIDY
IN THE FORM OF SECOND-CLASS POSTAGE RATES, 39 CFR ^ 132.  AN ANTITRUST
IMMUNITY IS ESTABLISHED BY THE NEWSPAPER PRESERVATION ACT, 15 U.S.C. ^
1801 ET SEQ. 

MR. JUSTICE WHITE, CONCURRING. 

I JOIN PARTS I, II, AND IV OF THE COURT'S OPINION AND ITS JUDGMENT. 
I DO NOT, HOWEVER, CONCUR IN PART III OF THE OPINION. 

I DO NOT SUGGEST THAT THE CONDUCT OF BROADCASTERS MUST ALWAYS, OR
EVEN OFTEN, BE CONSIDERED THAT OF A GOVERNMENT FOR THE PURPOSES OF THE
FIRST AMENDMENT.  BUT IT IS AT LEAST ARGUABLE, AND STRONGLY SO, THAT
THE COMMUNICATIONS ACT AND THE POLICIES OF THE COMMISSION, INCLUDING
THE FAIRNESS DOCTRINE, ARE HERE SUFFICIENTLY IMPLICATED TO REQUIRE
REVIEW OF THE COMMISSION'S ORDERS UNDER THE FIRST AMENDMENT.  FOR
MYSELF, THE HEART OF THE ARGUMENT IS SIMPLY STATES.  THE CLAIM IN THESE
CASES WAS THAT THE COMMUNICATIONS ACT AND THE FIRST AMENDMENT SHOULD BE
INTERPRETED TO CONFER A RIGHT OF ACCESS ON THOSE WHO WISHED TO BUY TIME
FOR EDITORIAL ADVERTISING AND TO RAISE POLITICAL FUNDS.  THE COMMISSION
REJECTED BOTH THE STATUTORY AND CONSTITUTIONAL POSITIONS.  TO CONFER A
RIGHT OF ACCESS, IT SAID, WOULD BE CONTRARY TO THE COMMUNICATIONS ACT
AND TO THE POLICIES ADOPTED BY THE COMMISSION TO IMPLEMENT THAT ACT. 
CONGRESS INTENDED THAT THE FAIRNESS DOCTRINE BE COMPLIED WITH, BUT IT
ALSO INTENDED THAT BROADCASTERS HAVE WIDE DISCRETION WITH RESPECT TO
THE METHOD OF COMPLIANCE.  THERE IS NO REQUIREMENT THAT BROADCASTERS
ACCEPT EDITORIAL ADS; THEY COULD, INSTEAD, PROVIDE THEIR OWN PROGRAMS,
WITH THEIR OWN FORMAT, OPINION AND OPINION SOURCES.  CONGRESS INTENDED
THAT THERE BE NO RIGHT OF ACCESS SUCH AS CLAIMED IN THESE CASES; AND,
IN THE COMMISSION'S VIEW, TO RECOGNIZE THAT RIGHT WOULD REQUIRE MAJOR
REVISIONS IN STATUTORY AND REGULATORY POLICY.  THE COMMISSION ALSO
RULED, CONTRARY TO THE VIEWS OF ITS DISSENTING MEMBER, THAT REJECTION
OF THE ASSERTED RIGHT OF ACCESS WAS WHOLLY CONSISTENT WITH THE FIRST
AMENDMENT. 

IN THIS CONTEXT I AM NOT READY TO CONCLUDE, AS THE COURT DOES IN
PART III, THAT THE FIRST AMENDMENT MAY BE PUT ASIDE FOR LACK OF
OFFICIAL ACTION NECESSARY TO INVOKE ITS PROSCRIPTIONS.  BUT, ASSUMING,
ARGUENDO, AS THE COURT DOES IN PART IV OF ITS OPINION, THAT CONGRESS OR
THE COMMISSION IS SUFFICIENTLY INVOLVED IN THE DENIAL OF ACCESS TO THE
BROADCASTING MEDIA TO REQUIRE REVIEW UNDER THE FIRST AMENDMENT, I WOULD
REVERSE THE JUDGMENT OF THE COURT OF APPEALS.  GIVEN THE
CONSTITUTIONALITY OF THE FAIRNESS DOCTRINE, AND ACCEPTING PART IV OF
THE COURT'S OPINION, I HAVE LITTLE DIFFICULTY IN CONCLUDING THAT
STATUTORY AND REGULATORY RECOGNITION OF BROADCASTER FREEDOM AND
DISCRETION TO MAKE UP THEIR OWN PROGRAMS AND TO CHOOSE THEIR METHOD OF
COMPLIANCE WITH THE FAIRNESS DOCTRINE IS CONSISTENT WITH THE FIRST
AMENDMENT. 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE POWELL JOINS,
CONCURRING. 

IN PART IV THE COURT DETERMINES "WHETHER, ASSUMING GOVERNMENTAL
ACTION, BROADCASTERS ARE REQUIRED" TO ACCEPT EDITORIAL ADVERTISEMENTS
"BY REASON OF THE FIRST AMENDMENT."  ANTE, AT 121.  THE COURT CONCLUDES
THAT THE COURT OF APPEALS ERRED WHEN IT FROZE THE "CONTINUING SEARCH
FOR MEANS TO ACHIEVE REASONABLE REGULATION COMPATIBLE WITH THE FIRST
AMENDMENT RIGHTS OF THE PUBLIC AND THE LICENSEES" INTO "A
CONSTITUTIONAL HOLDING."  ANTE, AT 132.  THE COURT'S CONCLUSION THAT
THE FIRST AMENDMENT DOES NOT COMPEL THE RESULT REACHED BY THE COURT OF
APPEALS DEMONSTRATES THAT THE GOVERNMENTAL ACTION ISSUE DOES NOT AFFECT
THE OUTCOME OF THIS CASE.  I THEREFORE REFRAIN FROM DECIDING IT. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE JUDGMENT. 

WHILE I JOIN THE COURT IN REVERSING THE JUDGMENT BELOW, I DO SO FOR
QUITE DIFFERENT REASONS. 

MY CONCLUSION IS THAT TV AND RADIO STAND IN THE SAME PROTECTED
POSITION UNDER THE FIRST AMENDMENT AS DO NEWSPAPERS AND MAGAZINES.  THE
PHILOSOPHY OF THE FIRST AMENDMENT REQUIRES THAT RESULT, FOR THE FEAR
THAT MADISON AND JEFFERSON HAD OF GOVERNMENT INTRUSION IS PERHAPS EVEN
MORE RELEVANT TO TV AND RADIO THAN IT IS TO NEWSPAPERS AND OTHER LIKE
PUBLICATIONS.  THAT FEAR WAS FOUNDED NOT ONLY ON THE SPECTRE OF A
LAWLESS GOVERNMENT BUT OF GOVERNMENT UNDER THE CON ROL OF A FACTION
THAT DESIRED TO FOIST ITS VIEWS OF THE COMMON GOOD ON THE PEOPLE.  IN
POPULAR TERMS THAT VIEW HAS BEEN EXPRESSED AS FOLLOWS: 

"THE GROUND RULES OF OUR DEMOCRACY, AS IT HAS GROWN, REQUIRE A FREE
PRESS, NOT NECESSARILY A RESPONSIBLE OR A TEMPERATE ONE.  THERE AREN'T
ANY HALFWAY STAGES.  AS ARISTOPHANES SAW, DEMOCRACY MEANS THAT POWER IS
GENERALLY CONFERRED ON SECOND-RATERS BY THIRD-RATERS, WHEREUPON
EVERYONE ELSE, FROM FIRST-RATERS TO FOURTH-RATERS, MOVES WITH GREAT
GLEE TO TRY TO DISLODGE THEM.  IT'S MESSY BUT MOST POLITICIANS
UNDERSTAND THAT IT CAN'T VERY WELL BE OTHERWISE AND STILL BE A
DEMOCRACY."  D. STEWART, REVIEWING EPSTEIN, NEWS FROM NOWHERE:
TELEVISION AND THE NEWS (1972), BOOK WORLD, WASHINGTON POST, MARCH 25,
1973, PP. 4 - 5. 

        I 

PUBLIC BROADCASTING, OF COURSE, RAISES QUITE DIFFERENT PROBLEMS FROM
THOSE TENDERED BY THE TV OUTLETS INVOLVED IN THIS LITIGATION. 

CONGRESS HAS AUTHORIZED THE CREATION OF THE CORPORATION FOR PUBLIC
BROADCASTING, WHOSE BOARD OF DIRECTORS IS APPOINTED BY THE PRESIDENT BY
AND WITH THE ADVICE AND CONSENT OF THE SENATE.  47 U.S.C. ^ 396.  A
TOTAL OF 223 TELEVISION AND 560 RADIO STATIONS MADE UP THIS NATIONWIDE
PUBLIC BROADCASTING SYSTEM AS OF JUNE 30, 1972.  SEE 1972 CORPORATION
FOR PUBLIC BROADCASTING ANNUAL REPORT.  IT IS A NONPROFIT ORGANIZATION
AND BY THE TERMS OF ^ 396 (B) IS SAID NOT TO BE "AN AGENCY OR
ESTABLISHMENT OF THE UNITED STATES GOVERNMENT."  YET, SINCE IT IS A
CREATURE OF CONGRESS WHOSE MANAGEMENT IS IN THE HANDS OF A BOARD NAMED
BY THE PRESIDENT AND APPROVED BY THE SENATE, IT IS DIFFICULT TO SEE WHY
IT IS NOT A FEDERAL AGENCY ENGAGED IN OPERATING A "PRESS" AS THAT WORD
IS USED IN THE FIRST AMENDMENT.  IF THESE CASES INVOLVED THAT
CORPORATION, WE WOULD HAVE A SITUATION COMPARABLE TO THAT IN WHICH THE
UNITED STATES OWNS AND MANAGES A PRESTIGIOUS NEWSPAPER LIKE THE NEW
YORK TIMES, WASHINGTON POST, AND SACRAMENTO BEE.  THE GOVERNMENT AS
OWNER AND MANAGER WOULD NOT, AS I SEE IT, BE FREE TO PICK AND CHOOSE
SUCH NEWS ITEMS AS IT DESIRED.  FOR BY THE FIRST AMENDMENT IT MAY NOT
CENSOR OR ENACT OR ENFORCE ANY OTHER "LAW" ABRIDGING FREEDOM OF THE
PRESS.  POLITICS, IDOLOGICAL SLANTS, RIGHTIST OR LEFTIST TENDENCIES
COULD PLAY NO PART IN ITS DESIGN OF PROGRAMS.  SEE MARKEL, WILL IT BE
PUBLIC OR PRIVATE TV?, WORLD, MARCH 13, 1973, P. 57; SHALES, WGBH-TV:
AN ULTIMATUM AGAINST 'IMPROPER' WHITE HOUSE INFLUENCE, WASHINGTON POST,
APRIL 27, 1973, P. E2.  MORE SPECIFICALLY, THE PROGRAMS TENDERED BY THE
RESPONDENTS IN THE PRESENT CASE COULD NOT THEN BE TURNED DOWN. 

GOVERNMENTAL ACTION MAY BE EVIDENCED BY VARIOUS FORMS OF SUPERVISION
OR CONTROL OF PRIVATE ACTIVITIES.  BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715.  I HAVE EXPRESSED THE VIEW THAT THE ACTIVITIES
OF LICENSEES OF THE GOVERNMENT OPERATING IN THE PUBLIC DOMAIN ARE
GOVERNMENTAL ACTIONS, SO FAR AS CONSTITUTIONAL DUTIES AND
RESPONSIBILITIES ARE CONCERNED.  SEE GARNER V. LOUISIANA, 368 U.S. 157,
183 - 185 (CONCURRING); LOMBARD V. LOUISIANA, 373 U.S. 267, 281
(CONCURRING); MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163, 179
(DISSENTING).  IT IS SOMEWHAT THE SAME IDEA EXPRESSED BY THE FIRST MR.
JUSTICE HARLAN IN HIS DISSENT IN PLESSY V. FERGUSON, 163 U.S. 537,
554.  BUT THAT VIEU HAS NOT BEEN ACCEPTED.  IF A TV OR RADIO LICENSEE
WERE A FEDERAL AGENCY, THE THESIS OF MY BROTHER BRENNAN WOULD
INEXORABLY FOLLOW, FOR A LICENSEE OF THE FEDERAL GOVERNMENT WOULD BE IN
PRECISELY THE SITUATION OF THE CORPORATION FOR PUBLIC BROADCASTING.  A
LICENSEE, LIKE AN AGENCY OF THE GOVERNMENT, WOULD WITHIN LIMITS OF ITS
TIME BE BOUND TO DISSEMINATE ALL VIEWS.  FOR, BEING AN ARM OF THE
GOVERNMENT, IT WOULD BE UNABLE BY REASON OF THE FIRST AMENDMENT TO
"ABRIDGE" SOME SECTORS OF THOUGHT IN FAVOR OF OTHERS.  THE COURT DOES
NOT, HOWEVER, DECIDE WHETHER A BROADCAST LICENSEE IS A FEDERAL AGENCY
WITHIN THE CONTEXT OF THESE CASES. 

        II 

IF A BROADCAST LICENSEE IS NOT ENGAGED IN GOVERNMENTAL ACTION FOR
PURPOSES OF THE FIRST AMENDMENT, I FAIL TO SEE HOW CONSTITUTIONALLY WE
CAN TREAT TV AND RADIO DIFFERENTLY THAN WE TREAT NEWSPAPERS.  IT WOULD
COME AS A SURPRISE TO THE PUBLIC AS WELL AS TO PUBLISHERS AND EDITORS
OF NEWSPAPERS TO BE INFORMED THAT A NEWLY CREATED FEDERAL BUREAU WOULD
HEREAFTER PROVIDE "GUIDELINES" FOR NEWSPAPERS OR PROMULGATE RULES THAT
WOULD GIVE A FEDERAL AGENCY POWER TO RIDE HERD ON THE PUBLISHING
BUSINESS TO MAKE SURE THAT FAIR COMMENT ON ALL CURRENT ISSUES WAS
MADE.  IN 1970 CONGRESSMAN FARBSTEIN INTRODUCED A BILL, /1/ NEVER
REPORTED OUT OF THE COMMITTEE, WHICH PROVIDED THAT ANY NEWSPAPER OF
GENERAL CIRCULATION PUBLISHED IN A CITY WITH A POPULATION GREATER THAN
25,000 AND IN WHICH FEWER THAN TWO SEPARATELY OWNED NEWSPAPERS OF
GENERAL CIRCULATION ARE PUBLISHED "SHALL PROVIDE A REASONABLE
OPPORTUNITY FOR A BALANCED PRESENTATION OF CONFLICTING VIEWS ON ISSUES
OF PUBLIC IMPORTANCE" AND GIVING THE FEDERAL COMMUNICATIONS COMMISSION
POWER TO ENFORCE THE REQUIREMENT. 

THOMAS I. EMERSON, OUR LEADING FIRST AMENDMENT SCHOLAR, HAS STATED
THAT: 

"(ANY EFFORT TO SOLVE THE BROADER PROBLEMS OF A MONOPOLY PRESS BY
FORCING NEWSPAPERS TO COVER ALL 'NEWSWORTHY' EVENTS AND PRINT ALL
VIEWPOINTS, UNDER THE WATCHFUL EYES OF PETTY PUBLIC OFFICIALS, IS
LIKELY TO UNDERMINE SUCH INDEPENDENCE AS THE PRESS NOW SHOWS WITHOUT
ACHIEVING ANY REAL DIVERSITY."  THE SYSTEM OF FREEDOM OF EXPRESSION 671
(1970). 

THE STURDY PEOPLE WHO FASHIONED THE FIRST AMENDMENT WOULD BE SHOCKED
AT THAT INTRUSION OF GOVERNMENT INTO A FIELD WHICH IN THIS NATION HAS
BEEN RESERVED FOR INDIVIDUALS, WHATEVER PART OF THE SPECTRUM OF OPINION
THEY REPRESENT.  BENJAMIN FRANKLIN, ONE OF THE FOUNDERS WHO WAS IN THE
NEWSPAPER BUSINESS, WROTE IN SIMPLE AND GRAPHIC FORM WHAT I HAD ALWAYS
ASSUMED WAS THE BASIC AMERICAN NEWSPAPER TRADITION THAT BECAME IMPLICIT
IN THE FIRST AMENDMENT: 

     "IN OUR EARLY HISTORY ONE VIEW WAS THAT THE PUBLISHER MUST
OPEN

  HIS COLUMNS 'TO ANY AND ALL CONTROVERSIALISTS, ESPECIALLY IF PAID

  FOR IT.'"  F. MOTT, AMERICAN JOURNALISM 55 (3D ED. 1962). 

  "FRANKLIN DISAGREED, DECLARING THAT HIS NEWSPAPER WAS NOT A

  STAGECOACH, WITH SEATS FOR EVERYONE; HE OFFERED TO PRINT

  PAMPHLETS FOR PRIVATE DISTRIBUTION, BUT REFUSED TO FILL HIS PAPER

  WITH PRIVATE ALTERCATIONS."  /2/  IBID. 

IT IS SAID THAT TV AND RADIO HAVE BECOME SO POWERFUL AND EXERT SUCH
AN INFLUENCE ON THE PUBLIC MIND THAT THEY MUST BE CONTROLLED BY
GOVERNMENT.  /3/ SOME NEWSPAPERS IN OUR HISTORY HAVE EXERTED A POWERFUL
-AND SOME HAVE THOUGHT--A HARMFUL INTEREST ON THE PUBLIC MIND.  BUT
EVEN THOMAS JEFFERSON, WHO KNEW HOW BASE AND OBNOXIOUS THE PRESS COULD
BE, NEVER DREAMED OF INTERFERING.  FOR HE THOUGHT THAT GOVERNMENT
CONTROL OF NEWSPAPERS WOULD BE THE GREATER OF TWO EVILS.  /4/ 

     "I DEPLORE . . . THE PUTRID STATE INTO WHICH OUR NEWSPAPERS

  HAVE PASSED, AND THE MALIGNITY, THE VULGARITY, AND MENDACIOUS

  SPIRIT OF THOSE WHO WRITE THEM.  . . . THESE ORDURES ARE RAPIDLY

  DEPRAVING THE PUBLIC TASTE. 

      "IT IS HOWEVER AN EVIL FOR WHICH THERE IS NO REMEDY, OUR

  LIBERTY DEPENDS ON THE FREEDOM OF THE PRESS, AND THAT CANNOT BE

  LIMITED WITHOUT BEING LOST." 

OF COURSE THERE IS PRIVATE CENSORSHIP IN THE NEWSPAPER FIELD.  BUT
FOR ONE PUBLISHER WHO MAY SUPPRESS A FACT, THERE ARE MANY WHO WILL
PRINT IT.  BUT IF THE GOVERNMENT IS THE CENSOR, ADMINISTRATIVE FIAT,
NOT FREEDOM OF CHOICE, CARRIES THE DAY. 

AS STATED RECENTLY BY HARRY KALVEN, JR.: 

"IT IS AN INSUFFICIENTLY NOTICED ASPECT OF THE FIRST AMENDMENT THAT
IT CONTEMPLATES THE VIGOROUS USE OF SELF-HELP BY THE OPPONENTS OF GIVEN
DOCTRINES, IDEAS, AND POLITICAL POSITIONS.  IT IS NOT THE THEORY THAT
ALL IDEAS AND POSITIONS ARE ENTITLED TO FLOURISH UNDER FREEDOM OF
DISCUSSION.  IT IS RATHER THEN THAT THEY MUST SURVIVE AND ENDURE
AGAINST HOSTILE CRITICISM.  THERE IS PERHAPS A PARADOX IN THAT THE
SUPRESSION OF SPEECH BY SPEECH IS PART AND PARCEL OF THE PRINCIPLE OF
FREEDOM OF SPEECH.  INDEED, ONE BIG REASON WHY POLICY DICTATES THAT
GOVERNMENT KEEP ITS HANDS OFF COMMUNICATION IS THAT, IN THIS AREA, SELF
HELP OF CRITICISM IS SINGULARLY EFFECTIVE.  . . . 

     "FREE, ROBUST CRITICISM OF GOVERNMENT, ITS OFFICERS, AND ITS

  POLICY IS THE ESSENCE OF THE DEMOCRATIC DIALECTIC--OF 'THE

  BELIEF,' AGAIN TO QUOTE BRANDEIS, 'IN THE POWER OF REASON AS

  APPLIED THROUGH PUBLIC DISCUSSION.'  THE GOVERNMENT CANNOT

  RECIPROCALLY CRITICIZE THE PERFORMANCE OF THE PRESS, ITS

  OFFICERS, AND ITS POLICIES WITHOUT ITS CRITICISM CARRYING

  IMPLICATIONS OF POWER AND COERCION.  THE GOVERNMENT SIMPLY CANNOT

  BE ANOTHER DISCUSSANT OF THE THE GOVERNMENT SIMPLY CANNOT BE

  ANOTHER DISCUSSANT OF THE PRESS'S PERFORMANCE.  WHETHER IT WILL

  IT OR NOT, IT IS A CRITIC WHO CARRIES THE THREAT OF THE CENSOR

AND MORE OFTEN THAN NOT IT WILLS IT.  NOR IS IT AT ALL CLEAR THAT

  ITS VOICE THAN NOT IT WILLS IT.  NOR IS IT AT ALL CLEAR THAT ITS

  VOICE WILL BE NEEDED; SURELY THERE WILL BE OTHERS TO CHAMPION

  WILL BE NEEDED; SURELY THERE WILL BE OTHERS TO CHAMPION ITS VIEW

  OF THE PERFORMANCE OF THE PRESS.  ITS VIEW OF THE PERFORMANCE OF

  THE PRESS. 

  "THE BALANCE STRUCK, THEN, IS AVOWEDLY, AND EVEN

  ENTHUSIASTICALLY, ONE-SIDED.  THE CITIZEN MAY CRITICIZE THE

PERFORMANCE AND MOTIVES OF HIS GOVERNMENT.  THE GOVERNMENT MAY

  DEFEND ITS PERFORMANCE AND ITS POLICIES, BUT IT MAY NOT CRITICIZE

  THE PERFORMANCE AND MOTIVES OF ITS CRITICS."  6 THE CENTER

  MAGAZINE, NO. 3, PP. 36 - 37 (MAY/JUNE 1973). 

RED LION BROADCASTING CO. V. FCC, 395 U.S. 367, IN A CAREFULLY
WRITTEN OPINION THAT WAS BUILT UPON PREDECESSOR CASES PUT TV AND RADIO
UNDER A DIFFERENT REGIME.  I DID NOT PARTICIPATE IN THAT DECISION AND,
WITH ALL RESPECT, WOULD NOT SUPPORT IT.  THE FAIRNESS DOCTRINE HAS NO
PLACE IN OUR FIRST AMENDMENT REGIME.  IT PUTS THE HEAD OF THE CAMEL
INSIDE THE TENT AND ENABLES ADMINISTRATION AFTER ADMINISTRATION TO TOY
WITH TV OR RADIO IN ORDER TO SERVE ITS SORDID OR ITS BENEVOLENT ENDS. 
IN 1973--AS IN OTHER YEARS--THERE IS CLAMORING TO MAKE TV AND RADIO
EMIT THE MESSAGES THAT CONSOLE CERTAIN GROUPS.  THERE ARE CHARGES THAT
THESE MASS MEDIA ARE TOO SLANTED, TOO PARTISAN, TOO HOSTILE IN THEIR
APPROACH TO CANDIDATES AND THE ISSUES. 

THE SAME CRY OF PROTEST HAS GONE UP AGAINST THE NEWSPAPERS AND
MAGAZINES.  WHEN SENATOR JOSEPH MCCARTHY WAS AT HIS PRIME, HOLDING IN
HIS HAND PAPERS CONTAINING THE NAMES OF 205 COMMUNISTS IN THE STATE
DEPARTMENT (R. FEURLICHT, JOE MCCARTHY AND MCCARTHYISM 54 (1972)),
THERE WERE SCARCELY A DOZEN PAPERS IN THIS NATION THAT STOOD FIRM FOR
THE CITIZEN'S RIGHT TO DUE PROCESS AND TO FIRST AMENDMENT PROTECTION. 
THAT, HOWEVER, WAS NO REASON TO PUT THE SADDLE OF THE FEDERAL
BUREAUCRACY ON THE BACKS OF PUBLISHERS.  UNDER OUR BILL OF RIGHTS
PEOPLE ARE ENTITLED TO HAVE EXTREME IDEAS, SILLY IDEAS, PARTISAN
IDEAS. 

THE SAME IS TRUE, I BELIEVE, OF TV AND RADIO.  AT TIMES THEY HAVE A
NAUSEATING MEDIOCRITY.  AT OTHER TIMES THEY SHOW THE DAZZLING
BRILLIANCE OF A LEONARD BERNSTEIN; AND THEY VERY OFTEN BRING HUMANISTIC
INFLUENCES OF FARAWAY PEOPLE INTO EVERY HOME. 

BOTH TV AND RADIO NEWS BROADCASTS FREQUENTLY TIP THE NEWS ONE
DIRECTION OR ANOTHER AND EVEN TRY TO TURN A PUBLIC FIGURE INTO A
CHARACTER OF DISREPUTE.  YET SO DO THE NEWSPAPERS AND THE MAGAZINES AND
OTHER SEGMENTS OF THE PRESS.  THE STANDARDS OF TV, RADIO, NEWSPAPERS,
OR MAGAZINES--WHETHER OF EXCELLENCE OR MEDIOCRITY--ARE BEYOND THE REACH
OF GOVERNMENT.  GOVERNMENT--ACTING THROUGH COURTS--DISCIPLINES
LAWYERS.  GOVERNMENT MAKES CRIMINAL SOME ACTS OF DOCTORS AND OF
ENGINEERS.  BUT THE FIRST AMENDMENT PUTS BEYOND THE REACH OF GOVERNMENT
FEDERAL REGULATION OF NEWS AGENCIES SAVE ONLY BUSINESS OR FINANCIAL
PRACTICES WHICH DO NOT INVOLVE FIRST AMENDMENT RIGHTS.  CONSPICUOUS IS
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, WHERE ENFORCEMENT OF THE
ANTITRUST LAWS AGAINST A NEWS-GATHERING AGENCY WAS HELD TO BE NOT
INCONSISTENT WITH FIRST AMENDMENT RIGHTS. 

GOVERNMENT HAS NO BUSINESS IN COLLATING, DISPENSING, AND ENFORCING,
SUBTLY OR OTHERWISE, ANY SET OF IDEAS ON THE PRESS.  BELIEFS, PROPOSALS
FOR CHANGE, CLAMOR FOR CONTROLS, PROTESTS AGAINST ANY GOVERNMENTAL
REGIME ARE PROTECTED BY THE FIRST AMENDMENT AGAINST GOVERNMENTAL BAN OR
CONTROL. 

THERE HAS BEEN DEBATE OVER THE MEANING OF THE FIRST AMENDMENT AS
APPLIED TO THE STATES BY REASON OF THE FOURTEENTH.  SOME HAVE THOUGHT
THAT AT THE STATE LEVEL, THE FIRST AMENDMENT WAS SOMEWHAT "WATERED
DOWN" AND DID NOT HAVE THE FULL VIGOR WHICH IT HAD AS APPLIED TO THE
FEDERAL GOVERNMENT.  SEE ROTH V. UNITED STATES, 354 U.S. 476, 502 - 503
(HARLAN, J., CONCURRING).  SO FAR, THAT HAS BEEN THE MINORITY VIEW. 
SEE MALLORY V. HOGAN 378 U.S. 1, 10.  BUT IT IS QUITE IRRELEVANT HERE,
FOR THE FIRST AMENDMENT, LIKE OTHER PARTS OF THE BILL OF RIGHTS, WAS AT
THE OUTSET APPLICABLE ONLY TO THE FEDERAL GOVERNMENT.  /5/  THE FIRST
AMENDMENT IS WRITTEN IN TERMS THAT ARE ABSOLUTE.  ITS COMMAND IS THAT
"CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE FREEDOM OF SPEECH, OR
OF THE PRESS . . . ." 

THAT GUARANTEE, CAN, OF COURSE, BE CHANGED BY A CONSTITUTIONAL
AMENDMENT WHICH CAN MAKE ALL THE PRESS OR SEGMENTS OF THE PRESS ORGANS
OF GOVERNMENT AND THUS CONTROL THE NEWS AND INFORMATION WHICH PEOPLE
RECEIVE.  SUCH A RESTRUCTURING OF THE FIRST AMENDMENT CANNOT BE DONE BY
JUDICIAL FIAT OR BY CONGRESSIONAL ACTION.  THE BAN OF "NO" LAW THAT
ABRIDGES FREEDOM OF THE PRESS IS IN MY VIEW TOTAL AND COMPLETE.  /6/
THE ALIEN AND SEDITION ACTS 1 STAT. 566, 570, 596, PASSED EARLY IN OUR
HISTORY WERE PLAINLY UNCONSTITUTIONAL, AS JEFFERSON BELIEVED. 
JEFFERSON, INDEED, SAID THAT BY REASON OF THE FIRST AMENDMENT 

"LIBELS, FALSEHOOD, AND DEFAMATION, EQUALLY WITH HERESY AND FALSE
RELIGION, ARE WITHHELD FROM THE COGNIZANCE OF FEDERAL TRIBUNALS.  THAT
THEREFORE THE ACT OF THE CONGRESS OF THE UNITED STATES, PASSED ON THE
14TH OF JULY, 1798, ENTITLED 'AN ACT IN ADDITION TO THE ACT ENTITLED
"AN ACT FOR THE PUNISHMENT OF CERTAIN CRIMES AGAINST THE UNITED
STATES,"' WHICH DOES ABRIDGE THE FREEDOM OF THE PRESS, IS NOT LAW, BUT
IS ALTOGETHER VOID, AND OF NO FORCE."  4 J. ELLIOT'S DEBATES ON THE
FEDERAL CONSTITUTION 541 (1876).  AND SEE 15 WRITINGS OF THOMAS
JEFFERSON 214 (MEMORIAL ED. 1904); 14 ID., AT 116; 11 ID., AT 43 - 44. 

THOSE ACTS HAD BUT A SHORT LIFE, AND WE NEVER RETURNED TO THEM.  WE
HAVE, HOWEVER, WITNESSED A SLOW ENCROACHMENT BY GOVERNMENT OVER THAT
SEGMENT OF THE PRESS THAT IS REPRESENTED BY TV AND RADIO LICENSEES. 
LICENSING IS NECESSARY FOR ENGINEERING REASONS; THE SPECTRUM IS LIMITED
AND WAVELENGTHS MUST BE ASSIGNED TO AVOID STATIONS INTERFERING /7/
WITH EACH OTHER.  RED LION BROADCASTING CO. V. FCC, 395 U.S., AT 388. 
THE COMMISSION HAS A DUTY TO ENCOURAGE A MULTITUDE OF VOICES BUT ONLY
IN A LIMITED WAY, VIZ., BY PREVENTING MONOPOLISTIC PRACTICES AND BY
PROMOTING TECHNOLOGICAL DEVELOPMENTS THAT WILL OPEN UP NEW CHANNELS. 
/8/  BUT CENSORSHIP /9/  OR EDITING OR THE SCREENING BY GOVERNMENT OF
WHAT LICENSEES MAY BROADCAST GOES AGAINST THE GRAIN OF THE FIRST
AMENDMENT. 

THE COURT IN NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S.
190, 226, SAID, "UNLIKE OTHER MODES OF EXPRESSION, RADIO INHERENTLY IS
NOT AVAILABLE TO ALL.  THAT IS ITS UNIQUE CHARACTERISTIC, AND THAT IS
WHY, UNLIKE OTHER MODES OF EXPRESSION, IT IS SUBJECT TO GOVERNMENTAL
REGULATION." 

THAT UNIQUENESS IS DUE TO ENGINEERING AND TECHNICAL PROBLEMS.  BUT
THE PRESS IN A REALISTIC SENSE IS LIKEWISE NOT AVAILABLE TO ALL.  SMALL
OR "UNDERGROUND" PAPERS APPEAR AND DISAPPEAR; AND THE WEEKLY IS AN
ESTABLISHED INSTITUTION.  BUT THE DAILY PAPERS NOW ESTABLISHED ARE
UNIQUE IN THE SENSE THAT IT WOULD BE VIRTUALLY IMPOSSIBLE FOR A
COMPETITOR TO ENTER THE FIELD DUE TO THE FINANCIAL EXIGENCIES OF THIS
ERA.  THE RESULT IS THAT IN PRACTICAL TERMS THE NEWSPAPERS AND
MAGAZINES, LIKE TV AND RADIO, ARE AVAILABLE ONLY TO A SELECT FEW.  WHO
AT THIS TIME WOULD HAVE THE FOLLY TO THINK HE COULD COMBAT THE NEW YORK
TIMES OR DENVER POST BY BUILDING A NEW PLANT AND BECOMING A
COMPETITOR?  THAT MAY ARGUE FOR A REDEFINITION OF THE RESPONSIBILITIES
OF THE PRESS IN FIRST AMENDMENT TERMS.  /10/  BUT I DO NOT THINK IT
GIVES US CARTE BLANCHE TO DESIGN SYSTEMS OF SUPERVISION AND CONTROL OR
EMPOWER CONGRESS TO READ THE MANDATE IN THE FIRST AMENDMENT THAT
"CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE FREEDOM . . . OF THE
PRESS" TO MEAN THAT CONGRESS MAY, ACTING DIRECTLY OR THROUGH ANY OF ITS
AGENCIES SUCH AS THE FCC MAKE "SOME" LAWS "ABRIDGING" FREEDOM OF THE
PRESS. 

POWERFUL ARGUMENTS, SUMMARIZED AND APPRAISED IN T. EMERSON, THE
SYSTEM OF FREEDOM OF EXPRESSION, CC. XVII, AND XVIII (1970), CAN BE
MADE FOR REVAMPING OR RECONDITIONING THE SYSTEM.  THE PRESENT ONE MAY
BE LARGELY ALIGNED ON THE SIDE OF THE STATUS QUO.  THE PROBLEM
IMPLICATES OUR EDUCATIONAL EFFORTS ON THE PRESS, FROM POLITICAL AND
FROM FINANCIAL SOURCES, TO FOIST BOILERPLATE POINTS OF VIEW ON OUR
PEOPLE RATHER THAN TO DISPLAY THE DIVERSITIES OF IDEOLOGIES AND CULTURE
IN A WORLD WHICH, AS BUCKMINSTER FULLER SAID, HAS BEEN "COMMUNIZED" BY
THE RADIO. 

WHAT KIND OF FIRST AMENDMENT WOULD BEST SERVE OUR NEEDS AS WE
APPROACH THE 21ST CENTURY MAY BE AN OPEN QUESTION.  BUT THE OLD
FASHIONED FIRST AMENDMENT THAT WE HAVE IS THE COURT'S ONLY GUIDELINE;
AND ONE HARD AND FAST PRINCIPLE WHICH IT ANNOUNCES IS THAT GOVERNMENT
SHALL KEEP ITS HANDS OFF THE PRESS.  THAT PRINCIPLE HAS SERVED US
THROUGH DAYS OF CALM AND ERAS OF STRIFE AND I WOULD ABIDE BY IT UNTIL A
NEW FIRST AMENDMENT IS ADOPTED.  THAT MEANS, AS I VIEW IT, THAT TV AND
RADIO, AS WELL AS THE MORE CONVENTIONAL METHODS FOR DISSEMINATING NEWS,
ARE ALL INCLUDED IN THE CONCEPT OF "PRESS" AS USED IN THE FIRST
AMENDMENT AND THEREFORE ARE ENTITLED TO LIVE UNDER THE LAISSEZ-FAIRE
REGIME WHICH THE FIRST AMENDMENT SANCTIONS. 

THE ISSUES PRESENTED IN THESE CASES ARE MOMENTOUS ONES.  TV AND
RADIO BROADCASTERS HAVE MINED MILLIONS BY SELLING MERCHANDISE, NOT IN
SELLING IDEAS ACROSS THE BROAD SPECTRUM OF THE FIRST AMENDMENT.  BUT
SOME NEWSPAPERS HAVE DONE PRECISELY THE SAME, LOADING THEIR PAGES WITH
ADVERTISEMENTS; THEY PUBLISH, NOT DISCUSSIONS OF CRITICAL ISSUES
CONFRONTING OUR SOCIETY, BUT STORIES ABOUT MURDERS, SCANDAL, AND
SLANDEROUS MATTER TOUCHING THE LIVES OF PUBLIC SERVANTS WHO HAVE NO
RECOURSE DUE TO NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254. 
COMMISSIONER JOHNSON OF THE FCC WROTE IN THE PRESENT CASE A POWERFUL
DISSENT.  HE SAID: 

     "ALTHOUGH THE FIRST AMENDMENT WOULD CLEARLY BAN GOVERNMENTAL

  CENSORSHIP OF SPEECH CONTENT, GOVERNMENT MUST BE CONCERNED ABOUT

  THE PROCEDURAL RULES THAT CONTROL THE PUBLIC FORUMS FOR

  DISCUSSION.  IF SOMEONE--A MODERATOR, OR RADIO-TELEVISION

  LICENSEE--APPLIES RULES THAT GIVE ONE SPEAKER, OR VIEWPOINT, LESS

  TIME (OR NONE AT ALL) TO PRESENT A POSITION, THEN A CENSORSHIP

  EXISTS AS INVIDIOUS AS OUTRIGHT THOUGHT CONTROL.  THERE IS LITTLE

  DOUBT IN MY MIND THAT FOR ANY GIVEN FORUM OF SPEECH THE FIRST

  AMENDMENT DEMANDS RULES PERMITTING AS MANY TO SPEAK AND BE HEARD

  AS POSSIBLE.  AND IF THIS COMMISSION DOES NOT ENACT THEM, THEN

  THE COURTS MUST REQUIRE THEM."  25 F.C.C. 2D 216, 232. 

BUT THE PROSPECT OF PUTTING GOVERNMENT IN A POSITION OF CONTROL OVER
PUBLISHERS IS TO ME AN APPALLING ONE, EVEN TO THE EXTENT OF THE
FAIRNESS DOCTRINE.  THE STRUGGLE FOR LIBERTY HAS BEEN A STRUGGLE
AGAINST GOVERNMENT.  THE ESSENTIAL SCHEME OF OUR CONSTITUTION AND BILL
OF RIGHTS WAS TO TAKE GOVERNMENT OFF THE BACKS OF PEOPLE.  SEPARATION
OF POWERS WAS ONE DEVICE.  THE BILL OF RIGHTS WAS STILL ANOTHER.  AND
IT IS ANATHEMA TO THE FIRST AMENDMENT TO ALLOW GOVERNMENT ANY ROLE OF
CENSORSHIP OVER NEWSPAPERS, MAGAZINES, BOOKS, ART, MUSIC, TV, RADIO, OR
ANY OTHER ASPECT OF THE PRESS.  THERE IS UNHAPPINESS IN SOME CIRCLES AT
THE IMPOTENCE OF GOVERNMENT.  BUT IF THERE IS TO BE A CHANGE, LET IT
COME BY CONSTITUTIONAL AMENDMENT.  THE COMMISSION HAS AN IMPORTANT ROLE
TO PLAY IN CURBING MONOPOLISTIC PRACTICES, IN KEEPING CHANNELS FREE
FROM INTERFERENCE, IN OPENING UP NEW CHANNELS AS TECHNOLOGY DEVELOPS. 
BUT IT HAS NO POWER OF CENSORSHIP.     IT IS SAID, OF COURSE, THAT
GOVERNMENT CAN CONTROL THE BROADCASTERS BECAUSE THEIR CHANNELS ARE IN
THE PUBLIC DOMAIN IN THE SENSE THAT THEY USE THE AIRSPACE THAT IS THE
COMMON HERITAGE OF ALL THE PEOPLE.  BUT PARKS ARE ALSO IN THE PUBLIC
DOMAIN.  YET PEOPLE WHO SPEAK THERE DO NOT COME UNDER GOVERNMENT
CENSORSHIP.  LOVELL V. GRIFFIN, 303 U.S. 444, 450 - 453; HAGUE V. CIO,
307 U.S. 496, 515 - 516.  IT IS THE TRADITION OF HYDE PARK, NOT THE
TRADITION OF THE CENSOR, THAT IS REFLECTED IN THE FIRST AMENDMENT.  TV
AND RADIO BROADCASTERS ARE A VITAL PART OF THE PRESS; AND SINCE THE
FIRST AMENDMENT ALLOWS NO GOVERNMENT CONTROL OVER IT, I WOULD LEAVE
THIS SEGMENT OF THE PRESS TO ITS DEVICES.     LICENSES ARE, OF COURSE,
RESTRICTED IN TIME AND WHILE, IN MY VIEW, CONGRESS HAS THE POWER TO
MAKE EACH LICENSE LIMITED TO A FIXED TERM AND NONREVIEWABLE, THERE IS
NO POWER TO DENY RENEWALS FOR EDITORIAL OR IDEOLOGICAL REASONS.  THE
REASON IS THAT THE FIRST AMENDMENT GIVES NO PREFERENCE TO ONE SCHOOL OF
THOUGHT OVER OTHERS.  /11/ 

THE COURT IN TODAY'S DECISION BY ENDORSING THE FAIRNESS DOCTRINE
SANCTIONS A FEDERAL SADDLE ON BROADCAST LICENSEES THAT IS AGREEABLE TO
THE TRADITIONS OF NATIONS THAT NEVER HAVE KNOWN FREEDOM OF PRESS /12/
AND THAT IS TOLERABLE IN COUNTRIES THAT DO NOT HAVE A WRITTEN
CONSTITUTION CONTAINING PROHIBITION AS ABSOLUTE AS THOSE IN THE FIRST
AMENDMENT.  INDEED AFTER THESE CASES WERE ARGUED THE FCC INSTITUTED A
"NON-PUBLIC" INQUIRY /13/  TO DETERMINE WHETHER ANY BROADCASTER OR
CABLECASTER HAS BROADCAST "'OBSCENE, INDECENT OR PROFANE LANGUAGE' IN
VIOLATION OF" 18 U.S.C. ^ 1464. 

IN APRIL 1973, THE FCC FINED SONDERLING BROADCASTING CORP., WHICH
OPERATES STATION WGLD IN OAK PARK, ILLINOIS, FOR ALLOWING "OBSCENE"
CONVERSATIONS ON A TELEPHONE "TALK SHOW."  IT USED ROTH V. UNITED
STATES, 354 U.S. 476, MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, AND
GINZBURG V. UNITED STATES, 383 U.S. 413, AND GINZBURG V. UNITED STATES,
383 U.S. 463, AS SUPPLYING THE CRITERIA FOR BROADCASTING.  IT FINED THE
CORPORATION $2,000 UNDER 18 U.S.C. ^ 1464, WHICH READS, "WHOEVER UTTERS
ANY OBSCENE, INDECENT, OR PROFANE LANGUAGE BY MEANS OF RADIO
COMMUNICATION SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT
MORE THAN TWO YEARS, OR BOTH."--F.C.C. 2D--. 

COMMISSIONER JOHNSON DISSENTED, SAYING THAT THE FCC PREFERS "TO SIT
AS AN OMNISCIENT PROGRAMMING REVIEW BOARD, ALLEGEDLY CAPABLE OF
DECIDING WHAT IS AND IS NOT GOOD FOR THE AMERICAN PUBLIC TO SEE AND
HEAR"; AND THAT WHEN THE FCC BARS A PARTICULAR PROGRAM IT CASTS "A PALL
OVER THE ENTIRE BROADCASTING INDUSTRY" FOR THE REASON THAT THE
LICENSEES "FEAR THE POTENTIAL LOSS OF THEIR HIGHLY PROFITABLE BROADCAST
LICENSES."  THAT, HE CONCLUDED, CREATES A "CHILLING EFFECT" WHICH HAS
"ENORMOUS PROPORTIONS" AND REACHES "ALL FORMS OF BROADCAST
EXPRESSION."  ID., AT--. 

WE OURSELVES HAVE, OF COURSE, MADE GREAT INROADS ON THE FIRST
AMENDMENT OF WHICH OBSCENITY IS ONLY ONE OF THE MANY EXAMPLES.  SO
PERHAPS WE ARE INCHING SLOWLY TOWARD A CONTROLLED PRESS.  BUT THE
REGIME OF FEDERAL SUPERVISION UNDER THE FAIRNESS DOCTRINE IS CONTRARY
TO OUR CONSTITUTIONAL MANDATE AND MAKES THE BROADCAST LICENSEE AN EASY
VICTIM OF POLITICAL PRESSURES AND REDUCES HIM TO A TIMID AND SUBMISSIVE
SEGMENT OF THE PRESS WHOSE MEASURE OF THE PUBLIC INTEREST WILL NOW BE
ECHOES OF THE DOMINANT POLITICAL VOICE THAT EMERGES AFTER EVERY
ELECTION.  THE AFFAIR WITH FREEDOM OF WHICH WE HAVE BEEN PROUD WILL NOW
BEAR ONLY A FAINT LIKENESS OF OUR FORMER ROBUST DAYS. 

        III 

I SAID THAT IT WOULD COME AS A SURPRISE TO THE PUBLIC AS WELL AS TO
PUBLISHERS AND EDITORS OF NEWSPAPERS TO LEARN THAT THEY WERE UNDER A
NEWLY CREATED FEDERAL BUREAU.  PERHAPS I SHOULD HAVE SAID THAT SUCH AN
EVENT SHOULD COME AS A SURPRISE.  IN FACT IT MIGHT NOT IN VIEW OF THE
RETROGRESSIVE STEPS WE HAVE WITNESSED. 

WE HAVE ALLOWED OMINOUS INROADS TO BE MADE ON THE HISTORIC FREEDOM
OF THE NEWSPAPERS.  THE EFFORT TO SUPPRESS THE PUBLICATION OF THE
PENTAGON PAPERS FAILED ONLY BY A NARROW MARGIN AND ACTUALLY SUCCEEDED
FOR A BRIEF SPELL IN IMPOSING PRIOR RESTRAINT ON OUR PRESS FOR THE
FIRST TIME IN OUR HISTORY.  SEE NEW YORK TIMES CO. V. UNITED STATES,
403 U.S. 713. 

IN RECENT YEARS THE ADMONITION OF MR. JUSTICE BLACK THAT THE FIRST
AMENDMENT GAVE THE PRESS FREEDOM SO THAT IT MIGHT "SERVE THE GOVERNED,
NOT THE GOVERNORS" (ID., AT 717) HAS BEEN DISREGARDED. 

"THE GOVERNMENT'S POWER TO CENSOR THE PRESS WAS ABOLISHED SO THAT
THE PRESS WOULD REMAIN FOREVER FREE TO CENSURE THE GOVERNMENT.  THE
PRESS WAS PROTECTED SO THAT IT COULD BARE THE SECRETS OF GOVERNMENT AND
INFORM THE PEOPLE.  ONLY A FREE AND UNRESTRAINED PRESS CAN EFFECTIVELY
EXPOSE DECEPTION IN GOVERNMENT.  AND PARAMOUNT AMONG THE
RESPONSIBILITIES OF A FREE PRESS IS THE DUTY TO PREVENT ANY PART OF THE
GOVERNMENT FROM DECEIVING THE PEOPLE AND SENDING THEM OFF TO DISTANT
LANDS TO DIE OF FOREIGN FEVERS AND FOREIGN SHOT AND SHELL."  IBID. 

THE RIGHT OF THE PEOPLE TO KNOW HAS BEEN GREATLY UNDERMINED BY OUR
DECISIONS REQUIRING, UNDER PAIN OF CONTEMPT, A REPORTER TO DISCLOSE THE
SOURCES OF THE INFORMATION HE COMES ACROSS IN INVESTIGATIVE REPORTING. 
BRANZBURG V. HAYES, 408 U.S. 665. 

THE BOSTON GLOBE REPORTS:  /14/ 

     "IN THE LAST TWO YEARS AT LEAST 20 FEDERAL GRAND JURIES HAVE

  BEEN USED TO INVESTIGATE RADICAL OR ANTIWAR DISSENT.  WITH THE

  POWER OF SUBPOENA, THE PROCEEDINGS SECRET, AND NOT BOUND BY THE

  RULES OF EVIDENCE REQUIRED IN OPEN COURT, THEY HAVE A LOT MORE

  LEVERAGE THAN, FOR EXAMPLE, THE OLD HOUSE UNAMERICAN ACTIVITIES

  COMMITTEE." 

MANY REPORTERS HAVE BEEN PUT IN JAIL, A POWERFUL WEAPON AGAINST
INVESTIGATIVE REPORTING.  AS THE BOSTON GLOBE STATES, "IN REALITY WHAT
IS BEING UNDERMINED HERE IS PRESS FREEDOM ITSELF."  /15/ 

IN THE SAME DIRECTION IS THE EASY USE OF THE STAMP "SECRET" OR "TOP
SECRET" WHICH THE COURT RECENTLY APPROVED IN ENVIRONMENTAL PROTECTION
AGENCY V. MINK, 410 U.S. 73.  THAT DECISION MAKES A SHAMBLES OF THE
FREEDOM OF INFORMATION ACT.  IN TUNE WITH THE OTHER RESTRAINTS ON THE
PRESS ARE PROVISIONS OF THE NEW PROPOSED RULES OF EVIDENCE WHICH THE
COURT RECENTLY SENT TO CONGRESS.  ROPOSED RULE 509 (B) PROVIDES: 

"THE GOVERNMENT HAS A PRIVILEGE TO REFUSE TO GIVE EVIDENCE AND

  TO PREVENT ANY PERSON FROM GIVING EVIDENCE UPON A SHOWING OF

  REASONABLE LIKELIHOOD OF DANGER THAT THE EVIDENCE WILL DISCLOSE A

  SECRET OF STATE OR OFFICIAL INFORMATION, AS DEFINED IN THIS

  RULE." 

UNDER THE STATUTE IF CONGRESS DOES NOT ACT, /16/  THIS NEW REGIME OF
SECRECY WILL BE IMPOSED ON THE NATION AND THE RIGHT OF PEOPLE TO KNOW
WILL BE FURTHER CURTAILED.  THE PROPOSED CODE SEDULOUSLY PROTECTS THE
GOVERNMENT; IT DOES NOT PROTECT NEWSMEN.  IT INDEED POINTEDLY OMITS ANY
MENTION OF THE PRIVILEGE OF NEWSMEN TO PROTECT THEIR CONFIDENTIAL
SOURCES. 

THESE GROWING RESTRAINTS ON NEWSPAPERS HAVE THE SAME OMINOUS MESSAGE
THAT THE OVERTONES OF THE PRESENT OPINION HAVE ON TV AND RADIO
LICENSEES. 

THE GROWING SPECTRE OF GOVERNMENTAL CONTROL AND SURVEILLANCE OVER
ALL ACTIVITIES OF PEOPLE MAKES OMINOUS THE THREAT TO LIBERTY BY THOSE
WHO HOLD THE EXECUTIVE POWER.  OVER AND OVER AGAIN, ATTEMPTS HAVE BEEN
MADE TO USE THE COMMISSION AS A POLITICAL WEAPON AGAINST THE
OPPOSITION, WHETHER TO THE LEFT OR TO THE RIGHT. 

EXPERIENCE HAS SHOWN THAT UNRESTRAINED POWER CANNOT BE TRUSTED TO
SERVE THE PUBLIC WEAL EVEN THOUGH IT BE IN GOVERNMENTAL HANDS.  THE
FATE OF THE FIRST AMENDMENT SHOULD NOT BE SO JEOPARDIZED.  /17/  THE
CONSTITUTIONAL MANDATE THAT THE GOVERNMENT SHALL MAKE "NO LAW"
ABRIDGING FREEDOM OF SPEECH AND THE PRESS IS CLEAR; THE ORDERS AND
RULINGS OF THE COMMISSION ARE COVERED BY THAT BAN; AND IT MUST BE
CAREFULLY CONFINED LEST BROADCASTING--NOW OUR MOST POWERFUL MEDIA--BE
USED TO SUBDUE THE MINORITIES OR HELP PRODUCE A NATION OF PEOPLE WHO
WALK SUBMISSIVELY TO THE EXECUTIVE'S NOTIONS OF THE PUBLIC GOOD. 

MILLS V. ALABAMA, 384 U.S. 214, INVOLVED A PROSECUTION OF A
NEWSPAPER EDITOR FOR PUBLISHING, CONTRARY TO A STATE STATUTE, AN
EDITORIAL ON ELECTION DAY URGING THE VOTERS TO VOTE AGAINST THE
EXISTING CITY COMMISSION AND TO REPLACE IT WITH A MAYOR-COUNCIL
GOVERNMENT.  THIS COURT, SPEAKING THROUGH MR. JUSTICE BLACK, REVERSED
THE JUDGMENT SAYING: 

"(THE PRESS SERVES AND WAS DESIGNED TO SERVE AS A POWERFUL ANTIDOTE
TO ANY ABUSES OF POWER BY GOVERNMENTAL OFFICIALS AND AS A
CONSTITUTIONALLY CHOSEN MEANS FOR KEEPING OFFICIALS ELECTED BY THE
PEOPLE RESPONSIBLE TO ALL THE PEOPLE WHOM THEY WERE SELECTED TO SERVE. 
SUPPRESSION OF THE RIGHT OF THE PRESS TO PRAISE OR CRITICIZE
GOVERNMENTAL AGENTS AND TO CLAMOR AND CONTEND FOR OR AGAINST CHANGE,
WHICH IS ALL THAT THIS EDITORIAL DID, MUZZLES ONE OF THE VERY AGENCIES
THE FRAMERS OF OUR CONSTITUTION THOUGHTFULLY AND DELIBERATELY SELECTED
TO IMPROVE OUR SOCIETY AND KEEP IT FREE.  THE ALABAMA CORRUPT PRACTICES
ACT BY PROVIDING CRIMINAL PENALTIES FOR PUBLISHING EDITORIALS SUCH AS
THE ONE HERE SILENCES THE PRESS AT A TIME WHEN IT CAN BE MOST
EFFECTIVE.  IT IS DIFFICULT TO CONCEIVE OF A MORE OBVIOUS AND FLAGRANT
ABRIDGMENT OF THE CONSTITUTIONALLY GUARANTEED FREEDOM OF THE PRESS." 
ID., AT 219.  I WOULD APPLY THE SAME TEST TO TV OR RADIO.  /18/ 

WHAT WALTER LIPPMAN WROTE ABOUT COOLIDGE'S CRITICISM OF THE PRESS
HAS PRESENT RELEVANCY.  PRESIDENT COOLIDGE, HE SAID, HAD 

"'DECLARED FOR PEACE, GOOD-WILL, UNDERSTANDING MODERATION;
DISAPPROVED OF CONQUEST, AGGRESSION, EXPLOITATION; PLEADED FOR A
PATRIOTIC PRESS, FOR A FREE PRESS; DENOUNCED A NARROW AND BIGOTED
NATIONALISM, AND ANNOUNCED THAT HE STOOD FOR LAW, ORDER, PROTECTION OF
LIFE, PROPERTY, RESPECT FOR SOVEREIGNTY AND PRINCIPLE OF INTERNATIONAL
LAW.  MR. COOLIDGE'S CATALOG OF THE VIRTUES WAS COMPLETE EXCEPT FOR ONE
VIRTUE.  . . . THAT IS THE HUMBLE REALIZATION THAT GOD HAS NOT ENDOWED
CALVIN COOLIDGE WITH AN INFALLIBLE POWER TO DETERMINE IN EACH CONCRETE
CASE EXACTLY WHAT IS RIGHT, WHAT IS JUST, WHAT IS PATRIOTIC.  . . . DID
HE RECOGNIZE THIS POSSIBILITY HE WOULD NOT CONTINUE TO LECTURE THE
PRESS IN SUCH A WAY AS TO MAKE IT APPEAR THAT WHEN NEWSPAPERS OPPOSE
HIM THEY ARE UNPATRIOTIC, AND THAT WHEN THEY SUPPORT HIM THEY DO SO NOT
BECAUSE THEY THINK HIS CASE IS GOOD BUT BECAUSE THEY BLINDLY SUPPORT
HIM.  MR. COOLIDGE'S NOTION . . . WOULD IF IT WERE ACCEPTED BY THE
AMERICAN PRESS REDUCE IT TO UTTER TRIVALITY.'"  J. LUSKIN, LIPPMAN,
LIBERTY, AND THE PRESS 60 (1972). 

THE SAME POLITICAL APPETITE FOR OVERSIGHT OF MOST SEGMENTS OF THE
PRESS HAS MARKEDLY INCREASED SINCE THE BLAND DAYS OF CALVIN COOLIDGE. 

/1/  H. R. 18927, 91ST CONG., 2D SESS. 

/2/  CONGRESS PROVIDED IN 47 U.S.C. ^ 153 (H) THAT "A PERSON ENGAGED
IN RADIO BROADCASTING SHALL NOT, INSOFAR AS SUCH PERSON IS SO ENGAGED,
BE DEEMED A COMMON CARRIER." 

/3/  "TO SAY THAT THE MEDIA HAVE GREAT DECISIONMAKING POWERS WITHOUT
DEFINED LEGAL RESPONSIBILITIES OR ANY FORMAL DUTIES OF PUBLIC
ACCOUNTABILITY IS BOTH TO OVERESTIMATE THEIR POWER AND TO PUT FORTH A
MEANINGLESS FORMULA FOR REFORM.  HOW SHALL WE MAKE THE NEW YORK TIMES
'ACCOUNTABLE' FOR ITS ANTI-VIETNAM POLICY?  REQUIRE IT TO PRINT LETTERS
TO THE EDITOR IN SUPPORT OF THE WAR?  IF THE SITUATION IS AS GRAVE AS
STATED, THE REMEDY IS FANTASTICALLY INADEQUATE.  BUT THE SITUATION IS
NOT THAT GRAVE.  THE NEW YORK TIMES, THE CHICAGO TRIBUNE, NBC, ABC, AND
CBS PLAY A ROLE IN POLICY FORMATION, BUT CLEARLY THEY WERE NOT ALONE
RESPONSIBLE, FOR EXAMPLE, FOR JOHNSON'S DECISION NOT TO RUN FOR RE
ELECTION, NIXON'S REFUSAL TO WITHDRAW THE TROOPS FROM VIETNAM, THE
REJECTION OF THE TWO BILLION DOLLAR NEW YORK BOND ISSUE, THE DEFEAT OF
CARSWELL AND HAYNSWORTH, OR THE SUPREME COURT'S SEGREGATION,
REAPPORTIONMENT AND PRAYER DECISIONS.  THE IMPLICATION THAT THE PEOPLE
OF THIS COUNTRY--EXCEPT THE PROPONENTS OF THE THEORY--ARE MERE
UNTHINKING AUTOMATONS MANIPULATED BY THE MEDIA, WITHOUT INTERESTS,
CONFLICTS, OR PREJUDICES IS AN ASSUMPTION WHICH I FIND QUITE
MADDENING.  THE DEVELOPMENT OF CONSTITUTIONAL DOCTRINE SHOULD NOT BE
BASED ON SUCH HYSTERICAL OVERESTIMATION OF MEDIA POWER AND
UNDERESTIMATION OF THE GOOD SENSE OF THE AMERICAN PUBLIC."  JAFFE, THE
EDITORIAL RESPONSIBILITY OF THE BROADCASTER: REFLECTIONS ON FAIRNESS
AND ACCESS, 85 HARV. L. REV. 768, 786 - 787 (1972). 

/4/  T. JEFFERSON, DEMOCRACY 150 - 151 (PADOVER ED. 1939). 

/5/  BARRON V. MAYOR OF BALTIMORE, 7 PET. 243. 

/6/  THE PRESS IN THIS COUNTRY, LIKE THAT OF BRITAIN, WAS AT ONE
TIME SUBJECT TO CONTEMPT FOR ITS COMMENTS ON PENDING LITIGATION. 
TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402.  BUT THAT POSITION
WAS CHANGED.  SEE BRIDGES V. CALIFORNIA, 314 U.S. 252, 267.  FEDERAL
HABEAS CORPUS, HOWEVER, IS AVAILABLE TO GIVE A MAN HIS FREEDOM AND THE
PROSECUTION AN OPPORTUNITY FOR A NEW TRIAL WHERE THE CONDUCT OF THE
PRESS HAS RESULTED IN AN UNFAIR TRIAL.  SHEPPARD V. MAXWELL, 384 U.S.
333.  AND CHANGE OF VENUE MAY BE HAD WHERE THE LOCAL ATMOSPHERE HAS
SATURATED THE COMMUNITY WITH PREJUDICE.  SEE RIDEAU V. LOUISIANA, 373
U.S. 723. 

/7/  THE SENATE REPORT WHICH ACCOMPANIED THE BILL THAT BECAME THE
RADIO ACT OF 1927, 44 STAT. 1162 STATED: 

"IF THE CHANNELS OF RADIO TRANSMISSION WERE UNLIMITED IN NUMBER THE
IMPORTANCE OF THE REGULATORY BODY WOULD BE GREATLY LESSENED, BUT THESE
CHANNELS ARE LIMITED AND RESTRICTED IN NUMBER AND THE DECISION AS TO
WHO SHALL BE PERMITTED TO USE THEM AND ON WHAT TERMS AND FOR WHAT
PERIODS OF TIME, TOGETHER WITH THE OTHER QUESTIONS CONNECTED WITH THE
SITUATION, REQUIRES THE EXERCISE OF A HIGH ORDER OF DISCRETION AND THE
MOST CAREFUL APPLICATION OF THE PRINCIPLES OF EQUITABLE TREATMENT TO
ALL THE CLASSES AND INTERESTS AFFECTED.  FOR THESE AND OTHER REASONS
YOUR COMMITTEE DECIDED THAT ALL POWER TO REGULATE RADIO COMMUNICATION
SHOULD BE CENTERED IN ONE INDEPENDENT BODY, A RADIO COMMISSION,
GRANTING IT FULL AND COMPLETE AUTHORITY OVER THE ENTIRE SUBJECT OF
RADIO."  S. REP. 772, 69TH CONG., 1ST SESS., 3.     /8/  SCARCITY MAY
SOON BE A CONSTRAINT OF THE PAST, THUS OBVIATING THE CONCERNS EXPRESSED
IN RED LION.  IT HAS BEEN PREDICTED THAT IT MAY BE POSSIBLE WITHIN 10
YEARS TO PROVIDE TELEVISION VIEWERS 400 CHANNELS THROUGH THE ADVANCES
OF CABLE TELEVISION.  R. SMITH, THE WIRED NATION 7 (1972); SEE
BRANDYWINE-MAIN LINE RADIO, INC. V. FCC, -- U.S. APP. D.C.--, ---, 473
F. 2D 16, 73 - 76 (BAZELON, J., DISSENTING). 

/9/  CURRENTLY, PRESS CENSORSHIP COVERS MOST OF THE GLOBE.  IN
BRAZIL THE PRESENT REGIME OF CENSORSHIP IS PERVASIVE.  AS REPORTED IN
THE NEW YORK TIMES FOR FEB. 17, 1973, P. 11:     "THE CENSORS' RULES,
ISSUED A FEW MONTHS AGO AND CONSTANTLY AMENDED, COVER A VAST FIELD AND
IF STRICTLY APPLIED WOULD LEAVE THE PRESS LITTLE TO DISCUSS.  IN
PRACTICE, HOWEVER, MUCH DEPENDS ON THE WHIMS AND SUSPICIONS OF THE
LOCAL CENSORS. 

"GENERAL PROHIBITIONS INCLUDE PROTESTS AGAINST CENSORSHIP, ANY
DISCUSSION OF A SUCCESSOR TO PRESIDENT EMILIO GARRASTAZU MEDICI, WHOSE
TERM IS UP IN 1974, CAMPAIGNS AGAINST THE GOVERNMENT'S SPECIAL POWERS
BY DECREE AND SENSATIONAL NEWS THAT MIGHT HURT THE IMAGE OF BRAZIL. 

"OTHERS ARE CAMPAIGNS TO DISCREDIT THE NATIONAL HOUSING PROGRAM, THE
FINANCIAL MARKET OR OTHER MATTERS OF VITAL IMPORTANCE TO THE
GOVERNMENT, THE PLAYING UP OF ASSAULTS ON BANKS OR CREDIT
ESTABLISHMENTS, TENSION BETWEEN THE ROMAN CATHOLIC CHURCH AND THE
STATE, AGITATION IN UNION AND STUDENT CIRCLES, AND PUBLICITY FOR
COMMUNIST PERSONALITIES AND NATIONS.  CRITICISM OF STATE GOVERNORS AND
'EXALTATION OR IMMORALITY' THROUGH NEWS OF HOMOSEXUALITY, PROSTITUTION
AND DRUGS ARE ALSO BARRED. 

"THE MOST CONTROVERSIAL ORDER, ISSUED BY THE MINISTER OF JUSTICE
LAST SEPTEMBER, BANS ALL NEWS, COMMENTS OR INTERVIEWS ON A POLITICAL
RELAXATION OF THE REGIME, ON DEMOCRACY FOR BRAZIL, AND ON THE ECONOMIC
AND FINANCIAL SITUATION IN GENERAL." 

/10/  INDEED, IT CAN BE ARGUED THAT THE EXISTENCE OF NEWSPAPERS, AND
THUS THEIR ACCESS TO THE PUBLIC, IS DEPENDENT UPON THE PREFERENTIAL
MAILING PRIVILEGES NEWSPAPERS RECEIVE THROUGH SECOND-CLASS POSTAGE
RATES.  THIS IS A PRIVILAGE AFFORDED BY THE GOVERNMENT, AND, AS MY
BROTHER STEWART RECOGNIZES, A FORM OF SUBSIDY. 

UNDER THE POSTAL REORGANIZATION ACT, THE NEW POSTAL RATE COMMISSION
IS EMPOWERED TO FIX POSTAGE RATES AT LEVELS HIGH ENOUGH TO MAKE EACH
CLASS OF MAIL PAY ITS OWN WAY.  JOHN FISCHER REPORTS THAT THE INCREASE
IN SECOND-CLASS MAIL RATES FOR MAGAZINES AND PERIODICALS (127%) IS
"NOTHING LESS THAN A DEATH SENTENCE FOR AN UNPREDICTABLE NUMBER OF
PUBLICATIONS."  FISCHER, THE EASY CHAIR, HARPER'S MAGAZINE 30, 31 (MAY
1973).  IT IS NOT THE ESTABLISHED GIANTS OF THE PUBLISHING FIELD THAT
WILL SUFFER MOST, FOR IT IS ESTIMATED THAT SOME 10,000 MAGAZINES AND
SMALL NEWSPAPERS WILL BE FORCED OUT OF EXISTENCE.  ID., AT 30.  FISCHER
MENTIONS SPECIFICALLY THE NATIONAL REVIEW, HUMAN EVENTS, THE NATION,
AND THE NEW REPUBLIC.  THESE ARE THE PUBLICATIONS THAT OFFER US THE
RICH DIVERSITY OF OPINION AND REPORTING THE FIRST AMENDMENT IS DESIGNED
TO PROMOTE AND PROTECT.  AS SENATOR MCGEE, CHAIRMAN OF THE POST OFFICE
AND CIVIL SERVICE COMMITTEE, HAS SAID:  "I BELIEVE THAT THE AMERICAN
PUBLIC GENERALLY HAS A VESTED INTEREST IN THE SURVIVAL OF NEWSPAPERS
AND MAGAZINES.  REGARDLESS OF THE ECONOMIC, POLITICAL, OR SOCIAL
POLICIES WHICH THEY ESPOUSE, THEY C-NTRIBUTE TO THE NATION'S THOUGHT
PROCESS.  I AM PERSONALLY CONVINCED THAT THE CONGRESS SHOULD NOT PERMIT
MAGAZINES TO GO UNDER BECAUSE THE COST OF DISTRIBUTING THEM THROUGH THE
POSTAL SYSTEM IS HIGHER THAN THEIR READERS ARE WILLING TO PAY."  ID.,
AT 32. 

IN ADDITION TO THE BENEFITS OF REDUCED POSTAGE RATES, NEWSPAPERS
HAVE BEEN AFFORDED A LIMITED ANTITRUST EXEMPTION.  NEWSPAPER
PRESERVATION ACT, 15 U.S.C. ^ 1801 ET SEQ. 

/11/  JUDGE BAZELON, DISSENTING IN BRANDYWINE-MAIN LINE RADIO, INC.
V. FCC,--U.S. APP. D.C., AT--, 473 F. 2D, AT 69 - 70, SAID: "WXUR WAS
NO DOUBT DEVOTED TO A PARTICULAR RELIGIOUS AND POLITICAL PHILOSOPHY;
BUT IT WAS ALSO A RADIO STATION DEVOTED TO SPEAKING OUT AND STIRRING
DEBATE ON CONTROVERSIAL ISSUES.  THE STATION WAS PURCHASED BY FAITH
THEOLOGICAL SEMINARY TO PROPAGATE.  A VIEWPOINT WHICH WAS NOT BEING
HEARD IN THE GREATER PHILADELPHIA AREA.  THE RECORD IS CLEAR THAT
THROUGH ITS INTERVIEW AND CALL-IN SHOWS IT DID OFFER A VARIETY OF
OPINIONS ON A BROAD RANGE OF PUBLIC ISSUES; AND THAT IT NEVER REFUSED
TO LEND ITS BROADCAST FACILITIES TO SPOKESMEN OF CONFLICTING
VIEWPOINTS. 

"THE COMMISSION'S STRICT RENDERING OF FAIRNESS REQUIREMENTS, AS
DEVELOPED IN ITS DECISION, HAS REMOVED WXUR FROM THE AIR.  THIS HAS
DEPRIVED THE LISTENING PUBLIC NOT ONLY OF A VIEWPOINT BUT ALSO OF
ROBUST DEBATE ON INNUMERABLE CONTROVERSIAL ISSUES.  IT IS BEYOND
DISPUTE THAT THE PUBLIC HAS LOST ACCESS TO INFORMATION AND IDEAS.  THIS
IS NOT A LOSS TO BE TAKEN LIGHTLY, HOWEVER UNPOPULAR OR DISRUPTIVE WE
MIGHT JUDGE THESE IDEAS TO BE."  (FOOTNOTES OMITTED.) 

/12/  IF EASTERN EUROPEAN EXPERIENCE SINCE WORLD WAR II IS ANY
CRITERION, THE NEWSPAPERS ARE PRETTY MUCH THE COMPANY PAPER IN THE HUGH
COMPANY (COMMUNIST) NATION.  THE EASIEST TARGET, HOWEVER, SEEMS TO BE
TV WHERE THE INPUT CAN BE CAREFULLY CONTROLLED AND "PRIME TIME" FILLED
WITH TAPES OF OFFICIAL MEETINGS, POLITICAL SPEECHES, AND THE TEDIOUS
ACCOUNTS OF ACHIEVEMENT OF THE WORKERS.  SEE MORGAN, PRESS OBEDIENCE IN
EAST EUROPE, WASHINGTON POST, MAY 19, 1973, P. A14. 

/13/  FCC ORDER NO. 73 - 331, 39 FED. REG. 8301 (MAR. 27, 1973). 

/14/  THE PEOPLE'S NEED TO KNOW, AN EDITORIAL SERIES, BOSTON GLOBE,
JAN. 21 - 27, 1973, P. 12. 

/15/  ID., AT 13. 

/16/  BY REASON OF AN ACT OF CONGRESS OF MAR. 30, 1973, THE RULES OF
EVIDENCE--AND AMENDMENTS TO THE RULES OF CIVIL PROCEDURE AND TO THE
RULES OF CRIMINAL PROCEDURE (WHICH WE SENT UP NOV. 20, 1972, AND DEC.
18, 1972)--WILL HAVE NO FORCE OR EFFECT EXCEPT TO THE EXTENT THAT
CONGRESS EXPRESSLY APPROVES.  87 STAT. 9. 

/17/  ALEXANDER BICKEL HAS SPURNED THE "TOTAL AGNOSTICISM" THAT
ALLOWS THE FIRST AMENDMENT TO HAVE ITS WAY BECAUSE "WHO REALLY KNOWS,
AFTER ALL, WHAT IS TRUE OR FALSE, EVIL OR GOOD, NOXIOUS OR WHOLESOME." 
THE PRESS AND GOVERNMENT:  ADVERSARIES WITHOUT ABSOLUTES, FREEDOM AT
ISSUE 5 (MAY - JUNE 1973).  HE ATTRIBUTES THIS VIEW TO MR. JUSTICE
HOLMES.  HE WOULD PLACE AT LEAST PARTIAL RESPONSIBILITY WITH THE
GOVERNMENT FOR DETERMINING THE "GOOD COUNSELS AND WHOLESOME DOCTRINE." 
IBID.  BUT, IT WAS PRECISELY THE MISTRUST OF THE EVANESCENT, NARROW,
FACTIONAL VIEWS OF THOSE IN POWER AND THE BELIEF THAT NO ONE HAS A
PATENT ON THE "TRUTH" THAT UNDERLAY THE FIRST AMENDMENT. 

/18/  THE MONETARY AND OTHER BURDENS IMPOSED ON THE PRESS BY THE
RIGHT OF A CRITICIZED PERSON TO REPLY, LIKE THE TRADITIONAL DAMAGE
REMEDY FOR LIBEL, LEAD OF COURSE TO SELF-CENSORSHIP RESPECTING MATTERS
OF IMPORTANCE TO THE PUBLIC THAT THE FIRST AMENDMENT DENIES THE
GOVERNMENT THE POWER TO IMPOSE.  THE BURDENS CERTAINLY ARE AS ONEROUS
AS THE INDIRECT RESTRICTIONS ON FIRST AMENDMENT RIGHTS WHICH WE HAVE
STRUCK DOWN:  (1) THE REQUIREMENT THAT A BOOKSELLER EXAMINE THE
CONTENTS OF HIS SHOP, SMITH V. CALIFORNIA, 361 U.S. 147 (1959); (2) THE
REQUIREMENT THAT A MAGAZINE PUBLISHER INVESTIGATE HIS ADVERTISERS,
MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478, 492 - 493 (1962)
(OPINION OF HARLAN, J.); (3) THE REQUIREMENT THAT NAMES AND ADDRESSES
OF SPONSORS BE PRINTED ON HANDBILLS, TALLEY V. CALIFORNIA, 362 U.S. 60
(1960); (4) THE REQUIREMENT THAT ORGANIZATIONS SUPPLY MEMBERSHIP LISTS,
GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S. 539
(1963); LOUISIANA EX REL. GREMILLION V. NAACP, 366 U.S. 293 (1961);
BATES V. CITY OF LITTLE ROCK, 361 U.S. 516 (1960); NAACP V. ALABAMA 357
U.S. 449 (1958); AND (5) THE REQUIREMENT THAT INDIVIDUALS DISCLOSE
ORGANIZATIONAL MEMBERSHIP, SHELTON V. TUCKER, 364 U.S. 479 (1960).  IN
EACH INSTANCE WE HELD THE RESTRICTION UNCONSTITUTIONAL ON THE GROUND
THAT IT DISCOURAGED OR CHILLED CONSTITUTIONALLY PROTECTED RIGHTS OF
SPEECH, PRESS, OR ASSOCIATION. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL CONCURS,
DISSENTING. 

THESE CASES REQUIRE US TO CONSIDER WHETHER RADIO AND TELEVISION
BROADCAST LICENSEES MAY, WITH THE APPROVAL OF THE FEDERAL
COMMUNICATIONS COMMISSION, /1/  REFUSE ABSOLUTELY TO SELL ANY PART OF
THEIR ADVERTISING TIME TO GROUPS OR INDIVIDUALS WISHING TO SPEAK OUT ON
CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE.  IN PRACTICAL EFFECT, THE
BROADCASTER POLICY HERE UNDER ATTACK PERMITS AIRING OF ONLY THOSE PAID
PRESENTATIONS WHICH ADVERTISE PRODUCTS OR DEAL WITH "NONCONTROVERSIAL"
MATTERS, WHILE RELEGATING THE DISCUSSION OF CONTROVERSIAL PUBLIC ISSUES
TO FORMATS SUCH AS DOCUMENTARIES, THE NEWS, OR PANEL SHOWS, WHICH ARE
TIGHTLY CONTROLLED AND EDITED BY THE BROADCASTER.  THE COURT HOLDS
TODAY THAT THIS POLICY--INCLUDING THE ABSOLUTE BAN ON THE SALE OF AIR
TIME FOR THE DISCUSSION OF CONTROVERSIAL ISSUES--IS CONSISTENT UITH THE
"PUBLIC INTEREST" REQUIREMENTS OF THE COMMUNICATIONS ACT OF 1934, 47
U.S.C. ^^ 307 (D), 309 (A).  /2/  THE COURT ALSO HOLDS THAT THE
CHALLENGED POLICY DOES NOT VIOLATE THE FIRST AMENDMENT.  IT IS
NOTEWORTHY THAT, IN REACHING THIS RESULT, THE COURT DOES NOT HOLD THAT
THERE IS SUFFICIENT "GOVERNMENTAL INVOLVEMENT" IN THE PROMULGATION AND
ENFORCEMENT OF THE CHALLENGED BAN TO ACTIVATE THE COMMANDS OF THE FIRST
AMENDMENT.  ON THE CONTRARY, ONLY THE CHIEF JUSTICE, AND MY BROTHERS
STEWART AND REHNQUIST EXPRESS THE VIEW THAT THE FIRST AMENDMENT IS
INAPPLICABLE TO THIS CASE.  MY BROTHERS WHITE, BLACKMUN, AND POWELL
QUITE PROPERLY DO NOT DECIDE THAT QUESTION, FOR THEY FIND THAT THE
BROADCASTER POLICY HERE UNDER ATTACK DOES NOT VIOLATE THE "SUBSTANCE"
OF THE FIRST AMENDMENT.  SIMILARLY, THERE IS NO MAJORITY FOR THE
HOLDING THAT THE CHALLENGED BAN DOES NOT VIOLATE THE "SUBSTANCE" OF THE
FIRST AMENDMENT.  FOR, ALTHOUGH THE CHIEF JUSTICE, AND MY BROTHER
REHNQUIST PURPORTS TO "DECIDE" THAT QUESTION, THEIR DISPOSITION OF THE
"GOVERNMENTAL INVOLVEMENT" ISSUE NECESSARILY RENDERS THEIR SUBSEQUENT
DISCUSSION OF THE "SUBSTANTIVE" QUESTION MERE DICTUM. 

IN MY VIEW, THE PRINCIPLE AT STAKE HERE IS ONE OF FUNDAMENTAL
IMPORTANCE, FOR IT CONCERNS THE PEOPLE'S RIGHT TO ENGAGE IN AND TO HEAR
VIGOROUS PUBLIC DEBATE ON THE BROADCAST MEDIA.  AND BALANCING WHAT I
PERCEIVE TO BE THE COMPETING INTERESTS OF BROADCASTERS, THE LISTENING
AND VIEWING PUBLIC, AND INDIVIDUALS SEEKING TO EXPRESS THEIR VIEWS OVER
THE ELECTRONIC MEDIA, I CAN ONLY CONCLUDE THAT THE EXCLUSIONARY POLICY
UPHELD TODAY CAN SERVE ONLY TO INHIBIT, RATHER THAN TO FURTHER, OUR
"PROFOUND NATIONAL COMMITMENT TO THE PRINCIPLE THAT DEBATE ON PUBLIC
ISSUES SHOULD BE UNINHIBITED, ROBUST, AND WIDE-OPEN."  NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S. 254, 270 (1964).  I WOULD THEREFORE AFFIRM
THE DETERMINATION OF THE COURT OF APPEALS THAT THE CHALLENGED
BROADCASTER POLICY IS VIOLATIVE OF THE FIRST AMENDMENT. 

        I 

THE COMMAND OF THE FIRST AMENDMENT THAT "CONGRESS SHALL MAKE NO LAW
. . . ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS" IS, ON ITS
FACE, DIRECTED AT GOVERNMENTAL RATHER THAN PRIVATE ACTION. 
NEVERTHELESS, OUR PRIOR DECISIONS MAKE CLEAR THAT "(CONDUCT THAT IS
FORMALLY 'PRIVATE' MAY BECOME SO ENTWINED WITH GOVERNMENTAL CHARACTER
AS TO BECOME SUBJECT TO THE CONSTITUTIONAL LIMITATIONS PLACED UPON
(GOVERNMENTAL) ACTION."  EVANS V. NEWTON, 382 U.S. 296, 299 (1966). 
THUS, THE REACH OF THE FIRST AMENDMENT DEPENDS NOT UPON ANY FORMALISTIC
"PRIVATE-PUBLIC" DICHOTOMY BUT, RATHER, UPON MORE FUNCTIONAL
CONSIDERATIONS CONCERNING THE EXTENT OF GOVERNMENTAL INVOLVEMENT IN,
AND PUBLIC CHARACTER OF, A PARTICULAR "PRIVATE" ENTERPRISE.  "ONLY BY
SIFTING FACTS AND WEIGHING CIRCUMSTANCES CAN THE NONOBVIOUS INVOLVEMENT
OF THE (GOVERNMENT) IN PRIVATE CONDUCT BE ATTRIBUTED ITS TRUE
SIGNIFICANCE."  BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715,
722 (1961); SEE MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163, 172
(1972).  AND BECAUSE OF THE INHERENT COMPLEXITY OF THIS CASE-BY-CASE
INQUIRY, "(THIS COURT HAS NEVER ATEEMPTED THE 'IMPOSSIBLE TASK' OF
FORMULATING AN INFALLIBLE TEST" FOR DETERMINING IN ALL INSTANCES
WHETHER PARTICULAR CONDUCT MUST BE DEEMED PRIVATE OR GOVERNMENTAL. 
REITMAN V. MULKEY, 387 U.S. 369, 378 (1967); SEE KOTCH V. PILOT
COMM'RS, 330 U.S. 552, 556 (1947). 

THIS DOES NOT MEAN, OF COURSE, THAT OUR PRIOR EXPERIENCE IN THIS
AREA OFFERS NO GUIDANCE FOR THE PURPOSES OF OUR PRESENT INQUIRY.  ON
THE CONTRARY, OUR PREVIOUS DECISIONS HAVE FOCUSED ON MYRIAD INDICIA OF
"GOVERNMENTAL ACTION," MANY OF WHICH ARE DIRECTLY APPLICABLE TO THE
OPERATIONS OF THE BROADCAST INDUSTRY.  /3/  AS THE COURT OF APPEALS
RECOGNIZED, "THE GENERAL CHARACTERISTICS OF THE BROADCAST INDUSTRY
REVEAL AN EXTRAORDINARY RELATIONSHIP BETWEEN THE BROADCASTERS AND THE
FEDERAL GOVERNMENT--A RELATIONSHIP WHICH PUTS THAT INDUSTRY IN A CLASS
WITH FEW OTHERS."  146 U.S. APP. D.C. 181, 190, 450 F. 2D 642, 651. 
MORE SPECIFICALLY, THE PUBLIC NATURE OF THE AIRWAVES, THE
GOVERNMENTALLY CREATED PREFERRED STATUS OF BROADCAST LICENSEES, THE
PERVASIVE FEDERAL REGULATION OF BROADCAST PROGRAMMING, AND THE
COMMISSION'S SPECIFIC APPROVAL OF THE CHALLENGED BROADCASTER POLICY
COMBINE IN THIS CASE TO BRING THE PROMULGATION AND ENFORCEMENT OF THAT
POLICY WITHIN THE ORBIT OF CONSTITUTIONAL IMPERATIVES. 

AT THE OUTSET, IT SHOULD BE NOTED THAT BOTH RADIO AND TELEVISION
BROADCASTING UTILIZE A NATURAL RESOURCE--THE ELECTROMAGNETIC SPECTRUM
/4/  --THAT IS PART OF THE PUBLIC DOMAIN.  AND, ALTHOUGH BROADCASTERS
ARE GRANTED THE TEMPORARY USE OF THIS VALUABLE RESOURCE FOR TERMINABLE
THREE-YEAR PERIODS, "OWNERSHIP" AND ULTIMATE CONTROL REMAIN VESTED IN
THE PEOPLE OF THE UNITED STATES.  THUS, ^ 301 OF THE COMMUNICATIONS ACT
OF 1934, 47 U.S.C. ^ 301, SPECIFICALLY PROVIDES: 

     "IT IS THE PURPOSE OF THIS (ACT) . . . TO MAINTAIN THE CONTROL

  OF THE UNITED STATES OVER ALL THE CHANNELS OF INTERSTATE AND

  FOREIGN RADIO TRANSMISSION; AND TO PROVIDE FOR THE USE OF SUCH

  CHANNELS, BUT NOT THE OWNERSHIP THEREOF, BY PERSONS FOR LIMITED

  PERIODS OF TIME, UNDER LICENSES GRANTED BY FEDERAL AUTHORITY, AND

  NO SUCH LICENSE SHALL BE CONSTRUED TO CREATE ANY RIGHT, BEYOND

  THE TERMS, CONDITIONS, AND PERIODS OF THE LICENSE.  . . ." 

SUCH PUBLIC "OWNERSHIP" OF AN ESSENTIAL ELEMENT IN THE OPERATIONS OF
A PRIVATE ENTERPRISE IS, OF COURSE, AN IMPORTANT AND ESTABLISHED
INDICIUM OF "GOVERNMENTAL INVOLVEMENT."  IN BURTON V. WILMINGTON
PARKING AUTHORITY, SUPRA, FOR EXAMPLE, WE EMPHASIZED THE FACT OF
"PUBLIC OWNERSHIP" IN HOLDING THE PROSCRIPTIONS OF THE FOURTEENTH
AMENDMENT APPLICABLE TO A PRIVATELY OWNED RESTAURANT LEASING SPACE IN A
BUILDING OWNED BY THE STATE.  /5/  IN REACHING THAT RESULT, WE
EXPLAINED THAT, IN PART BECAUSE OF THE "PUBLIC OWNERSHIP" OF THE
BUILDING, THE STATE "HAS ELECTED TO PLACE ITS POWER, PROPERTY AND
PRESTIGE BEHIND THE" ACTIONS OF THE PRIVATELY OWNED RESTAURANT.  365
U.S., AT 725.  AND, VIEWING THE RELATIONSHIP IN ITS ENTIRETY, WE
CONCLUDED THAT "(THE STATE HAS SO FAR INSINUATED ITSELF INTO A POSITION
OF INTERDEPENDENCE WITH (THE RESTAURANT) THAT IT MUST BE RECOGNIZED AS
A JOINT PARTICIPANT IN THE CHALLENGED ACTIVITY.  . . ."  IBID.; SEE
ALSO MOOSE LODGE NO. 107 V. IRVIS, SUPRA, AT 172 - 173, 175; TURNER V.
CITY OF MEMPHIS, 369 U.S. 350 (1962); KISSINGER V. NEW YORK CITY
TRANSIT AUTHORITY, 274 F. SUPP. 438 (SDNY 1967); FARMER V. MOSES, 232
F. SUPP. 154 (SDNY 1964). 

A SECOND INDICIUM OF "GOVERNMENTAL INVOLVEMENT" DERIVES FROM THE
DIRECT DEPENDENCE OF BROADCASTERS UPON THE FEDERAL GOVERNMENT FOR THEIR
"RIGHT" TO OPERATE BROADCAST FREQUENCIES.  THERE CAN BE NO DOUBT THAT,
FOR THE INDUSTRY AS A WHOLE, GOVERNMENTAL REGULATION ALONE MAKES "RADIO
COMMUNICATION POSSIBLE BY . . . LIMITING THE NUMBER OF LICENSES SO AS
NOT TO OVERCROWD THE SPECTRUM."  RED LION BROADCASTING CO. V. FCC, 395
U.S. 367, 389 (1969).  /6/  MOREOVER, WITH RESPECT TO INDIVIDUAL
LICENSEES, IT IS EQUALLY CLEAR THAT "EXISTING BROADCASTERS HAVE OFTEN
ATTAINED THEIR PRESENT POSITION," NOT AS A RESULT OF FREE MARKET
PRESSURES /7/  BUT, RATHER, "BECAUSE OF THEIR INITIAL GOVERNMENT
SELECTION.  . . . ."  ID., AT 400.  INDEED, THE "QUASI-MONOPOLISTIC"
ADVANTAGES ENJOYED BY BROADCAST LICENSEES "ARE THE FRUIT OF A PREFERRED
POSITION CONFERRED BY THE GOVERNMENT."  IBID.  THUS, AS MR. CHIEF
JUSTICE (THEN JUDGE) BURGER HAS HIMSELF RECOGNIZED, "(A) BROADCASTER
SEEKS AND IS GRANTED THE FREE AND EXCLUSIVE USE OF A LIMITED AND
VALUABLE PART OF THE PUBLIC DOMAIN; WHEN HE ACCEPTS THAT FRANCHISE IT
IS BURDENED BY ENFORCEABLE PUBLIC OBLIGATIONS."  OFFICE OF
COMMUNICATION OF UNITED CHURCH OF CHIRST V. FCC, 123 U.S. APP. D.C.
328, 337, 359 F. 2D 994, 1003 (1966).  AND, ALONG THESE SAME LINES, WE
HAVE CONSISTENTLY HELD THAT "WHEN AUTHORITY DERIVES IN PART FROM
GOVERNMENT'S THUMB ON THE SCALES, THE EXERCISE OF THAT POWER BY PRIVATE
PERSONS BECOMES CLOSELY AKIN, IN SOME RESPECTS TO ITS EXERCISE BY
GOVERNMENT ITSELF."  AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.
382, 401 (1950); SEE, E.G., PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S.
451, 462 N. 8 (1952). 

A FURTHER INDICIUM OF "GOVERNMENTAL INVOLVEMENT" IN THE PROMULGATION
AND ENFORCEMENT OF THE CHALLENGED BROADCASTER POLICY MAY BE SEEN IN THE
EXTENSIVE GOVERNMENTAL CONTROL OVER THE BROADCAST INDUSTRY.  IT IS
TRUE, OF COURSE, THAT THIS "COURT HAS NEVER HELD" THAT ACTIONS OF AN
OTHERWISE PRIVATE ENTITY NECESSARILY CONSTITUTE GOVERNMENTAL ACTION IF
THAT ENTITY "IS SUBJECT TO . . . REGULATION IN ANY DEGREE WHATEVER." 
MOOSE LODGE NO. 107 V. IRVIS, SUPRA, AT 173.  HERE, HOWEVER, WE ARE
CONFRONTED, NOT WITH SOME MINIMAL DEGREE OF REGULATION, BUT, RATHER,
WITH AN ELABORATE STATUTORY SCHEME GOVERNING VIRTUALLY ALL ASPECTS OF
THE BROADCAST INDUSTRY.  /8/  INDEED, FEDERAL AGENCY REVIEW AND
GUIDANCE OF BROADCASTER CONDUCT IS AUTOMATIC, CONTINUING, AND
PERVASIVE.  /9/  THUS, AS THE COURT OF APPEALS NOTED, "(ALMOST NO OTHER
PRIVATE BUSINESS--ALMOST NO OTHER REGULATED PRIVATE BUSINESS--IS SO
INTIMATELY BOUND TO GOVERNMENT . . . ."  146 U.S. APP. D.C., AT 191,
450 F. 2D, AT 652. 

EVEN MORE IMPORTANT THAN THIS GENERAL REGULATORY SCHEME, HOWEVER, IS
THE SPECIFIC GOVERNMENTAL INVOLVEMENT IN THE BROADCASTER POLICY
PRESENTLY UNDER CONSIDERATION.  THERE IS, FOR EXAMPLE, AN OBVIOUS NEXUS
BETWEEN THE COMMISSION'S FAIRNESS DOCTRINE AND THE ABSOLUTE REFUSAL OF
BROADCAST LICENSEES TO SELL ANY PART OF THEIR AIR TIME TO GROUPS OR
INDIVIDUAL WISHING TO SPEAK OUT ON CONTROVERSIAL ISSUES OF PUBLIC
IMPORTANCE.  INDEED, IN DEFENSE OF THIS POLICY, THE BROADCASTER
PETITIONERS ARGUE VIGOROUSLY THAT THIS EXCLUSIONARY POLICY IS
AUTHORIZED AND EVEN COMPELLED BY THE FAIRNESS DOCTRINE.  AND THE COURT
ITSELF RECOGNIZES REPEATEDLY THAT THE FAIRNESS DOCTRINE AND OTHER
COMMUNICATIONS ACT POLICIES ARE INEXTRICABLY LINKED TO THE CHALLENGED
BAN.  THUS, AT ONE POINT, THE COURT SUGGESTS THAT "(IF THE FAIRNESS
DOCTRINE WERE APPLIED TO EDITORIAL ADVERTISING, THERE IS . . . THE
SUBSTANTIAL DANGER THAT THE EFFECTIVE OPERATION OF THAT DOCTRINE WOULD
BE JEOPARDIZED."  ANTE, AT 124.  SIMILARLY, THE COURT MAINTAINS THAT,
IN LIGHT OF THE FAIRNESS DOCTRINE, THERE SIMPLY IS NO REASON TO ALLOW
INDIVIDUALS TO PURCHASE ADVERTISING TIME FOR THE EXPRESSION OF THEIR
OWN VIEWS ON PUBLIC ISSUES.  SEE ANTE, AT 130 - 131.  /10/ ALTHOUGH I
DO NOT IN ANY SENSE AGREE WITH THE SUBSTANCE OF THESE PROPOSITIONS,
THEY SERVE AT LEAST TO ILLUSTRATE THE EXTENT TO WHICH THE COMMISSION'S
FAIRNESS DOCTRINE HAS INFLUENCED THE DEVELOPMENT OF THE POLICY HERE
UNDER REVIEW. 

MOREOVER, THE COMMISSION'S INVOLVEMENT IN THE CHALLENGED POLICY IS
NOT LIMITED SOLELY TO THE INDIRECT EFFECTS OF ITS FAIRNESS DOCTRINE. 
ON THE CONTRARY, IN A DECISION WHICH MUST INEVITABLY PROVIDE GUIDANCE
FOR FUTURE BROADCASTER ACTION, THE COMMISSION HAS SPECIFICALLY
CONSIDERED AND SPECIFICALLY AUTHORIZED THE FLAT BAN.  SEE BUSINESS
EXECUTIVES MOVE FOR VIETNAM PEACE, 25 F.C.C. 2D 242 (1970); DEMOCRATIC
NATIONAL COMMITTEE, 25 F.C.C. 2D 216 (1970).  IN SO DOING, THE
COMMISSION--AND THROUGH IT THE FEDERAL GOVERNMENT--HAS UNEQUIVOCALLY
GIVEN ITS IMPRIMATUR TO THE ABSOLUTE BAN ON EDITORIAL ADVERTISING. 
AND, OF COURSE, IT IS NOW WELL SETTLED THAT SPECIFIC GOVERNMENTAL
APPROVAL OF OR ACQUIESENCE IN CHALLENGED ACTION BY A PRIVATE ENTITY
INDICATES "GOVERNMENTAL ACTION." 

THUS, IN MCCABE V. ATCHISON, T. & S. F. R. CO., 235 U.S. 151 (1914),
FOR EXAMPLE, THE COURT DEALT WITH A STATUTE WHICH, AS CONSTRUED BY THE
COURT, SIMPLY AUTHORIZED RAIL CARRIERS TO PROVIDE CERTAIN TYPES OF CARS
FOR WHITE PASSENGERS WITHOUT OFFERING EQUAL FACILITIES TO BLACKS. 
ALTHOUGH DISMISSAL OF THE COMPLAINT ON PROCEDURAL GROUNDS WAS AFFIRMED,
WE MADE CLEAR THAT SUCH A STATUTE, EVEN THOUGH PURELY PERMISSIVE IN
NATURE, WAS INVALID UNDER THE FOURTEENTH AMENDMENT BECAUSE A CARRIER
REFUSING EQUAL SERVICE TO BLACKS WOULD BE "ACTING IN THE MATTER UNDER
THE AUTHORITY OF A STATE LAW."  ID., AT 162.  AND, SOME 50 YEARS LATER,
WE EXPLAINED THIS FINDING OF "GOVERNMENTAL ACTION" IN MACABE AS
"NOTHING LESS THAN CONSIDERING A PERMISSIVE STATE STATUTE AS AN
AUTHORIZATION TO DISCRIMINATE AND AS SUFFICIENT STATE ACTION TO VIOLATE
THE FOURTEENTH AMENDMENT.  . . . ."  REITMAN V. MULKEY, 387 U.S., AT
379.  THUS, "(OUR PRIOR DECISIONS LEAVE NO DOUBT" THAT ANY ACTION OF
THE GOVERNMENT, THROUGH ANY OF ITS AGENCIES, APPROVING, AUTHORIZING,
ENCOURAGING, OR OTHERWISE SUPPORTING CONDUCT WHICH, IF PERFORMED BY THE
GOVERNMENT, WOULD VIOLATE THE CONSTITUTION, "CONSTITUTES ILLEGAL
(GOVERNMENTAL) INVOLVEMENT IN THOSE PERTINENT PRIVATE ACTS . . . THAT
SUBSEQUENTLY OCCUR."  ADICKES V. KRESS & CO., 398 U.S. 144, 202 (1970)
(OPINION OF BRENNAN, J.); SEE, E. G., MOOSE LODGE NO. 107 V. IRVIS,
SUPRA; HUNTER V. ERICKSON, 393 U.S. 385 (1969); REITMAN V. MULKEY,
SUPRA; EVANS V. NEWTON, 382 U.S. 296 (1966); ROBINSON V. FLORIDA, 378
U.S. 153 (1964); LOMBARD V. LOUISIANA, 373 U.S. 267 (1963); PETERSON V.
CITY OF GREENVILLE, 373 U.S. 244 (1963); BURTON V. WILMINGTON PARKING
AUTHORITY, SUPRA; MCCABE V. ATCHISON, T. & S. F. R. CO., SUPRA. 

FINALLY, AND PERHAPS MOST IMPORTANT, IN A CASE VIRTUALLY IDENTICAL
TO THOSE NOW BEFORE US, WE HELD THAT A POLICY PROMULGATED BY A
PRIVATELY OWNED BUS COMPANY, FRANCHISED BY THE FEDERAL GOVERNMENT AND
REGULATED BY THE PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF
COLUMBIA, MUST BE SUBJECTED TO THE CONSTRAINTS OF THE FIRST AMENDMENT. 
PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451 (1952).  IN REACHING
THAT RESULT, WE PLACED PRIMARY EMPHASIS ON THE SPECIFIC REGULATORY
ACQUIESENCE IN THE CHALLENGED ACTION OF THE BUS COMPANY.  THUS, AFTER
NOTING THAT THE BUS COMPANY "OPERATES ITS SERVICE UNDER THE REGULATORY
SUPERVISION OF THE PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF
COLUMBIA WHICH IS AN AGENCY AUTHORIZED BY CONGRESS," WE EXPLAINED THAT
OUR FINDING OF "GOVERNMENTAL ACTION" WAS PREDICATED SPECIFICALLY 

"UPON THE FACT THAT THE AGENCY, PURSUANT TO PROTESTS AGAINST THE
(CHALLENGED POLICY), ORDERED AN INVESTIGATION OF IT AND, AFTER FORMAL
PUBLIC HEARINGS, ORDERED ITS INVESTIGATION DISMISSED ON THE GROUND THAT
THE PUBLIC SAFETY COMFORT AND CONVENIENCE WERE NOT IMPAIRED THEREBY." 
ID., AT 462.  SEE MOOSE LODGE NO. 107 V. IRVIS, SUPRA, AT 175 - 176, N.
3. 

ALTHOUGH THE CHIEF JUSTICE, JOINED BY MR. JUSTICE STEWART AND MR.
JUSTICE REHNQUIST, STRAINS VALIANTLY TO DISTINGUISH POLLAK, HE OFFERS
NOTHING MORE THAN THE PROVERBIAL "DISTINCTIONS WITHOUT A DIFFERENCE." 
HERE, AS IN POLLAK, THE BROADCAST LICENSEE OPERATE "UNDER THE
REGULATORY SUPERVISION OF . . . AN AGENCY AUTHORIZED BY CONGRESS."  343
U.S., AT 462.  AND, AGAIN AS IN POLLAK, THAT AGENCY RECEIVED "PROTESTS"
AGAINST THE CHALLENGED POLICY AND, AFTER FORMAL CONSIDERATION,
"DISMISSED" THE COMPLAINTS ON THE GROUND THAT THE "PUBLIC INTEREST,
CONVENIENCE, AND NECESSITY" WERE NOT "IMPAIRED" BY THAT POLICY. 
INDEED, THE ARGUMENT FOR FINDING "GOVERNMENTAL ACTION"  HERE IS EVEN
STRONGER THAN IN POLLAK, FOR THIS CASE CONCERNS, NOT AN INCIDENTAL
ACTIVITY OF A BUS COMPANY, BUT, RATHER, THE PRIMARY ACTIVITY OF THE
REGULATED ENTITIES--COMMUNICATION. 

THUS, GIVEN THE CONFLUENCE OF THESE VARIOUS INDICIA OF "GOVERNMENTAL
ACTION"--INCLUDING THE PUBLIC NATURE OF THE AIRWAVES, /11/  THE
GOVERNMENTALLY CREATED PREFERRED STATUS OF BROADCASTERS, THE EXTENSIVE
GOVERNMENTAL REGULATION OF BROADCAST PROGRAMMING, AND THE SPECIFIC
GOVERNMENTAL APPROVAL OF THE CHALLENGED POLICY--I CAN ONLY CONCLUDE
THAT THE GOVERNMENT "HAS SO FAR INSINUATED ITSELF INTO A POSITION" OF
PARTICIPATION IN THIS POLICY THAT THE ABSOLUTE REFUSAL OF BROADCAST
LICENSEES TO SELL AIR TIME TO GROUPS OR INDIVIDUALS WISHING TO SPEAK
OUT ON CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE MUST BE SUBJECTED TO
THE RESTRAINTS OF THE FIRST AMENDMENT.  /12/

        II 

RADIO AND TELEVISION HAVE LONG BEEN RECOGNIZED AS FORMS OF
COMMUNICATION "AFFECTED BY A FIRST AMENDMENT INTEREST" AND, INDEED, IT
CAN HARDLY BE DOUBTED THAT BROADCAST LICENSEES ARE THEMSELVES PROTECTED
BY THAT AMENDMENT.  RED LION BROADCASTING CO. V. FCC, 395 U.S., AT
386.  SEE UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131, 166
(1948); Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 545 - 546 (1941). 
RECOGNITION OF THIS FACT DOES NOT END OUR INQUIRY, HOWEVER, FOR IT IS
EQUALLY CLEAR THAT THE PROTECTION OF THE FIRST AMENDMENT ON THIS
CONTEXT IS NOT LIMITED SOLELY TO BROADCASTERS.  ON THE CONTRARY, AT
LEAST ONE SET OF COMPETING CLAIMS TO THE PROTECTION OF THAT AMENDMENT
DERIVES FROM THE FACT THAT, BECAUSE OF THE LIMITED NUMBER OF BROADCAST
FREQUENCIES AVAILABLE AND THE POTENTIALLY PERVASIVE IMPACT OF THE
ELECTRONIC MEDIA, "THE PEOPLE AS A WHOLE RETAIN THEIR INTEREST IN FREE
SPEECH BY RADIO AND THEIR COLLECTIVE RIGHT TO HAVE THE MEDIUM FUNCTION
CONSISTENTLY WITH THE ENDS AND PURPOSES OF THE FIRST AMENDMENT."  RED
LION BROADCASTING CO. V. FCC, SUPRA, AT 390. 

OVER 50 YEARS AGO, MR. JUSTICE HOLMES SOUNDED WHAT HAS SINCE BECOME
A DOMINANT THEME IN APPLYING THE FIRST AMENDMENT TO THE CHANGING
PROBLEMS OF OUR NATION.  "(THE ULTIMATE GOOD," HE DECLARED, "IS BETTER
REACHED BY FREE TRADE IN IDEAS," AND "THE BEST TEST OF TRUTH IS THE
POWER OF THE THOUGHT TO GET ITSELF ACCEPTED IN THE COMPETITION OF THE
MARKET . . . ."  ABRAMS V. UNITED STATES, 250 U.S. 616, 630 (1919)
(DISSENTING OPINION); SEE ALSO WHITNEY V. CALIFORNIA, 274 U.S. 357, 375
- 376 (1927) (BRANDEIS, J., CONCURRING); GITLOW V. NEW YORK, 268 U.S.
652, 672 - 673 (1925) (HOLMES, J., DISSENTING).  INDEED, THE FIRST
AMENDMENT ITSELF TESTIFIES TO OUR "PROFOUND NATIONAL COMMITMENT TO THE
PRINCIPLE THAT DEBATE ON PUBLIC ISSUES SHOULD BE UNINHIBITED, ROBUST,
AND WIDE-OPEN,"  /13/  AND THE AMENDMENT "RESTS ON THE ASSUMPTION THAT
THE WIDEST POSSIBLE DISSEMINATION OF INFORMATION FROM DIVERSE AND
ANTAGONISTIC SOURCES IS ESSENTIAL TO WELFARE OF THE PUBLIC . . . ." 
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 20 (1945).  FOR "IT IS
ONLY THORUGH FREE DEBATE AND FREE EXCHANGE OF IDEAS THAT GOVERNMENT
REMAINS RESPONSIVE TO THE WILL OF THE PEOPLE AND PEACEFUL CHANGE IS
EFFECTED."  TERMINIELLO V. CHICAGO, 337 U.S. 1, 4 (1949); SEE ALSO
THORNHILL V. ALABAMA, 310 U.S. 88, 102 (1940); PALKO V. CONNECTICUT,
302 U.S. 319, 326 - 327 (1937).     WITH CONSIDERATIONS SUCH AS THESE
IN MIND, WE HAVE SPECIFICALLY DECLARED THAT, IN THE CONTEXT OF RADIO
AND TELEVISION BROADCASTING, THE FIRST AMENDMENT PROTECTS "THE RIGHT OF
THE PUBLIC TO RECEIVE SUITABLE ACCESS TO SOCIAL, POLITICAL, ESTHETIC,
MORAL, AND OTHER IDEAS AND EXPERIENCES . . . ."  RED LION BROADCASTING
CO. V. FCC, SUPRA, AT 390.  /14/  AND, BECAUSE "(IT IS THE PURPOSE OF
THE FIRST AMENDMENT TO PRESERVE AN UNINHIBITED MARKET-PLACE OF IDEAS IN
WHICH TRUTH WILL ULTIMATELY PREVAIL, RATHER THAN TO COUNTENANCE
MONOPOLIZATION OF THAT MARKET, WHETHER IT BE BY THE GOVERNMENT ITSELF
OR A PRIVATE LICENSEE," "(IT IS THE RIGHT OF THE VIEWERS AND LISTENERS,
NOT THE RIGHT OF THE BROADCASTERS, WHICH IS PARAMOUNT."  IBID. 

THUS, WE HAVE EXPLICITLY RECOGNIZED THAT, IN LIGHT OF THE UNIQUE
NATURE OF THE ELECTRONIC MEDIA, THE PUBLIC HAVE STRONG FIRST AMENDMENT
INTERESTS IN THE RECEPTION OF A FULL SPECTRUM OF VIEWS--PRESENTED IN A
VIGOROUS AND UNINHIBITED MANNER--ON CONTROVERSIAL ISSUES OF PUBLIC
IMPORTANCE.  AND, AS WE HAVE SEEN, IT HAS TRADITIONALLY BEEN THOUGHT
THAT THE MOST EFFECTIVE WAY TO INSURE THIS "UNINHIBITED, ROBUST, AND
WIDE-OPEN" DEBATE IS BY FOSTERING A "FREE TRADE IN IDEAS" BY MAKING OUR
FORUMS OF COMMUNICATION READILY AVAILABLE TO ALL PERSONS WISHING TO
EXPRESS THEIR VIEWS.  ALTHOUGH APPARENTLY CONCEDING THE LEGITIMACY OF
THESE PRINCIPLES, THE COURT NEVERTHELESS UPHOLDS THE ABSOLUTE BAN ON
EDITORIAL ADVERTISING BECAUSE, IN ITS VIEW, THE COMMISSION'S FAIRNESS
DOCTRINE, IN AND OF ITSELF, IS SUFFICIENT TO SATISFY THE FIRST
AMENDMENT INTERESTS OF THE PUBLIC.  I CANNOT AGREE. 

THE FAIRNESS DOCTRINE ORIGINATED EARLY IN THE HISTORY OF BROADCAST
REGULATION AND, RATHER THAN BEING SET FORTH IN ANY SPECIFIC STATUTORY
PROVISION, /15/  DEVELOPED GRADUALLY IN A LONG SERIES OF COMMISSION
RULINGS IN PARTICULAR CASES.  /16/  IN ESSENCE, THE DOCTRINE IMPOSES A
TWOFOLD DUTY UPON BROADCAST LICENSEES:  (1) COVERAGE OF ISSUES OF
PUBLIC IMPORTANCE MUST BE ADEQUATE, /17/  AND (2) SUCH COVERAGE MUST
FAIRLY REFLECT OPPOSING VIEWPOINTS.  /18/  IN FULFILLING THEIR
OBLIGATIONS UNDER THE FAIRNESS DOCTRINE, HOWEVER, BROADCAST LICENSEES
HAVE VIRTUALLY COMPLETE DISCRETION, SUBJECT ONLY TO THE COMMISSION'S
GENERAL REQUIREMENT THAT LICENSEES ACT "REASONABLY AND IN GOOD FAITH,"
/19/  "TO DETERMINE WHAT ISSUES SHOULD BE COVERED, HOW MUCH TIME SHOULD
BE ALLOCATED, WHICH SPOKESMEN SHOULD APPEAR, AND IN WHAT FORMAT."  /20/
THUS, THE FAIRNESS DOCTRINE DOES NOT IN ANY SENSE REQUIRE BROADCASTERS
TO ALLOW "NON-BROADCASTER" SPEAKERS TO USE THE AIRWAVES TO EXPRESS
THEIR OWN VIEWS ON CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE.  /21/  ON
THE CONTRARY, BROADCASTERS MAY MEET THEIR FAIRNESS RESPONSIBILITIES
THROUGH PRESENTATION OF CAREFULLY EDITED NEWS PROGRAMS, PANEL
DISCUSSIONS, INTERVIEWS, AND DOCUMENTARIES.  AS A RESULT, BROADCASTERS
RETAIN ALMOST EXCLUSIVE CONTROL OVER THE SELECTION OF ISSUES AND
VIEWPOINTS TO BE COVERED, THE MANNER OF PRESENTATION, AND, PERHAPS MOST
IMPORTANT, WHO SHALL SPEAK.  GIVEN THIS DOCTRINAL FRAMEWORK, I CAN ONLY
CONCLUDE THAT THE FAIRNESS DOCTRINE, STANDING ALONE, IS UNSUFFICIENT-
IN THEORY AS WELL AS IN PRACTICE--TO PROVIDE THE KIND OF "UNINHIBITED,
ROBUST, AND WIDE-OPEN" EXCHANGE OF VIEWS TO WHICH THE PUBLIC IS
CONSTITUTIONALLY ENTITLED. 

AS A PRACTICAL MATTER, THE COURT'S RELIANCE ON THE FAIRNESS DOCTRINE
AS AN "ADEQUATE" ALTERNATIVE TO EDITORIAL ADVERTISING SERIOUSLY
OVERESTIMATES THE ABILITY--OR WILLINGNESS--OF BROADCASTERS TO EXPOSE
THE PUBLIC TO THE "WIDEST POSSIBLE DISSEMINATION OF INFORMATION FROM
DIVERSE AND ANTAGONISTIC SOURCES."  /22/  AS PROFESSOR JAFFE HAS NOTED,
"THERE IS CONSIDERABLE POSSIBILITY THE BROADCASTER WILL EXERCISE A
LARGE AMOUNT OF SELF-CENSORSHIP AND TRY TO AVOID AS MUCH CONTROVERSY AS
HE SAFELY CAN."  /23/ INDEED, IN LIGHT OF THE STRONG INTEREST OF
BROADCASTERS IN MAXIMIZING THEIR AUDIENCE, AND THEREFORE THEIR PROFITS,
IT SEEMS ALMOST NAIVE TO EXPECT THE MAJORITY OF BROADCASTERS TO PRODUCE
THE VARIETY AND CONTROVERSIALITY OF MATERIAL NECESSARY TO REFLECT A
FULL SPECTRUM OF VIEWPOINTS.  STATED SIMPLY, ANGRY CUSTOMERS ARE NOT
GOOD CUSTOMERS AND, IN THE COMMERCIAL WORLD OF MASS COMMUNICATIONS, IT
IS SIMPLY "BAD BUSINESS" TO ESPOUSE--OR EVEN TO ALLOW OTHERS TO ESPOUSE
-THE HETERODOX OR THE CONTROVERSIAL.  AS A RESULT, EVEN UNDER THE
FAIRNESS DOCTRINE, BROADCASTERS GENERALLY TEND TO PERMIT ONLY
ESTABLISHED--OR AT LEAST MODERATED--VIEWS TO ENTER THE BROADCAST
WORLD'S "MARKETPLACE OF IDEAS."  /24/ 

MOREOVER, THE COURT'S RELIANCE ON THE FAIRNESS DOCTRINE AS THE SOLE
MEANS OF INFORMING THE PUBLIC SERIOUSLY MISCONCEIVES AND UNDERESTIMATES
THE PUBLIC'S INTEREST IN RECEIVING IDEAS AND INFORMATION DIRECTLY FROM
THE ADVOCATES OF THOSE IDEAS WITHOUT THE INTERPOSITION OF JOURNALISTIC
MIDDLEMEN.  UNDER THE FAIRNESS DOCTRINE, BROADCASTERS DECIDE WHAT
ISSUES ARE "IMPORTANT," HOW "FULLY" TO COVER THEM, AND WHAT FORMAT,
TIME, AND STYLE OF COVERAGE ARE "APPROPRIATE."  THE RETENTION OF SUCH
ABSOLUTE CONTROL IN THE HANDS OF A FEW GOVERNMENT LICENSEES IS INIMICAL
TO THE FIRST AMENDMENT, FOR VIGOROUS, FREE DEBATE CAN BE ATTAINED ONLY
WHEN MEMBERS OF THE PUBLIC HAVE AT LEAST SOME OPPORTUNITY TO TAKE THE
INITIATIVE AND EDITORIAL CONTROL INTO THEIR OWN HANDS. 

OUR LEGAL SYSTEM REFLECTS A BELIEF THAT TRUTH IS BEST ILLUMINATED BY
A COLLISION OF GENUINE ADVOCATES.  UNDER THE FAIRNESS DOCTRINE,
HOWEVER, ACCOMPANIED BY AN ABSOLUTE BAN ON EDITORIAL ADVERTISING, THE
PUBLIC IS COMPELLED TO RELY EXCLUSIVELY ON THE "JOURNALISTIC
DISCRETION" OF BROADCASTERS, WHO SERVE IN THEORY AS SURROGATE SPOKESMEN
FOR ALL SIDES OF ALL ISSUES.  THIS SEPARATION OF THE ADVOCATE FROM THE
EXPRESSION OF HIS VIEWS CAN SERVE ONLY TO DIMINISH THE EFFECTIVENESS OF
THAT EXPRESSION.  INDEED, WE EMPHASIZED THIS FACT IN RED LION:  /25/ 

"NOR IS IT ENOUGH THAT HE SHOULD HEAR THE ARGUMENTS OF ADVERSARIES
FROM HIS OWN TEACHERS, PRESENTED AS THEY STATE THEM, AND ACCOMPANIED BY
WHAT THEY OFFER AS REFUTATIONS.  THAT IS NOT THE WAY TO DO JUSTICE TO
THE ARGUMENTS, OR BRING THEM INTO REAL CONTACT WITH HIS OWN MIND.  HE
MUST BE ABLE TO HEAR THEM FROM PERSONS WHO ACTUALLY BELIEVE THEM; WHO
DEFEND THEM IN EARNEST, AND DO THEIR VERY UTMOST FOR THEM."  THUS, IF
THE PUBLIC IS TO BE HONESTLY AND FORTHRIGHTLY APPRISED OF OPPOSING
VIEWS ON CONTROVERSIAL ISSUES, IT IS IMPERATIVE THAT CITIZENS BE
PERMITTED AT LEAST SOME OPPORTUNITY TO SPEAK DIRECTLY FOR THEMSELVES AS
GENUINE ADVOCATES ON ISSUES THAT CONCERN THEM. 

MOREOVER, TO THE EXTENT THAT BROADCASTERS ACTUALLY PERMIT CITIZENS
TO APPEAR ON "THEIR" AIRWAVES UNDER FAIRNESS DOCTRINE, SUCH APPEARANCES
ARE SUBJECT TO EXTENSIVE EDITORIAL CONTROL.  YET IS IS CLEAR THAT THE
EFFECTIVENESS OF AN INDIVIDUAL'S EXPRESSION OF HIS VIEWS IS AS
DEPENDENT ON THE STYLE AND FORMAT OF PRESENTATION AS IT IS ON THE
CONTENT ITSELF.  AND THE RELEGATION OF AN INDIVIDUAL'S VIEWS TO SUCH
TIGHTLY CONTROLLED FORMATS AS THE NEWS, DOCUMENTARIES, EDITED
INTERVIEWS, OR PANEL DISCUSSIONS MAY TEND TO MINIMIZE, RATHER THAN
MAXIMIZE THE EFFECTIVENESS OF SPEECH.  UNDER A LIMITED SCHEME OF
EDITORIAL ADVERTISING, HOWEVER, THE CRUCIAL EDITORIAL CONTROLS ARE IN
THE SPEAKER'S OWN HANDS. 

NOR ARE THESE CASES CONCERNED SOLELY WITH THE ADEQUACY OF COVERAGE
OF THOSE VIEWS AND ISSUES WHICH GENERALLY ARE RECOGNIZED AS
"NEWSWORTHY."  FOR ALSO AT STAKE IS THE RIGHT OF THE PUBLIC TO RECEIVE
SUITABLE ACCESS TO NEW AND GENERALLY UNPERCEIVED IDEAS AND OPINIONS. 
UNDER THE FAIRNESS DOCTRINE, THE BROADCASTER IS REQUIRED TO PRESENT
ONLY "REPRESENTATIVE COMMUNITY VIEWS AND VOICES ON CONTROVERSIAL
ISSUES" OF PUBLIC IMPORTANCE.  /26/  THUS, BY DEFINITION, THE FAIRNESS
DOCTRINE TENDS TO PERPETUATE COVERAGE OF THOSE "VIEWS AND VOICES" THAT
ARE ALREADY ESTABLISHED, WHILE FAILING TO PROVIDE FOR EXPOSURE OF THE
PUBLIC TO THOSE "VIEWS AND VOICES" THAT ARE NOVEL, UNORTHODOX, OR
UNREPRESENTATIVE OF PREVAILING OPINION.  /27/ 

FINALLY, IT SHOULD BE NOTED THAT THE FAIRNESS DOCTRINE PERMITS,
INDEED REQUIRES, BROADCASTERS TO DETERMINE FOR THEMSELVES WHICH VIEWS
AND ISSUES ARE SUFFICIENTLY "IMPORTANT" TO WARRANT DISCUSSION.  THE
BRIEFS OF THE BROADCASTER-PETITIONERS IN THIS CASE ILLUSTRATE THE TYPE
OF "JOURNALISTIC DISCRETION" LICENSEES NOW EXERCISE IN THIS REGARD. 
THUS, ABC SUGGESTS THAT IT WOULD REFUSE TO AIR THOSE VIEWS WHICH IT
CONSIDERS "SCANDALOUS" OR "CRACKPOT,"  /28/ WHILE CBS WOULD EXCLUDE
THOSE ISSUES OR OPINIONS THAT ARE "INSIGNIFICANT"  /29/  OR "TRIVIAL." 
/30/  SIMILARLY, NBC WOULD BAR SPEECH THAT STRAYS "BEYOND THE BOUNDS OF
NORMALLY ACCEPTED TASTE,"  /31/  AND WTOP WOULD PROTECT THE PUBLIC FROM
SUBJECTS THAT ARE "SLIGHT, PAROCHIAL OR INAPPROPRIATE."  /32/ 

THE GENIUS OF THE FIRST AMENDMENT, HOWEVER, IS THAT IT HAS ALWAYS
DEFINED WHAT THE PUBLIC OUGHT TO HEAR BY PERMITTING SPEAKERS TO SAY
WHAT THEY WISH.  AS THE COURT OF APPEALS RECOGNIZED, "(IT HAS
TRADITIONALLY BEEN THOUGHT THAT THE BEST JUDGE OF THE IMPORTANCE OF A
PARTICULAR VIEWPOINT OR ISSUE IS THE INDIVIDUAL OR GROUP HOLDING THE
VIEWPOINT AND WISHING TO COMMUNICATE IT TO OTHERS."  146 U.S. APP.
D.C., AT 195, 450 F. 2D AT 656.  INDEED, "SUPERVISED AND ORDAINED
DISCUSSION" IS DIRECTLY CONTRARY TO THE UNDERLYING PURPOSES OF THE
FIRST AMENDMENT, /33/  FOR THAT AMENDMENT "PRESUPPOSES THAT RIGHT
CONCLUSIONS ARE MORE LIKELY TO BE GATHERED OUT OF A MULTITUDE OF
TONGUES, THAN THROUGH ANY KIND OF AUTHORITATIVE SELECTION."  /34/
THUS, IN A RELATED CONTEXT, WE HAVE EXPLICITLY RECOGNIZED THAT
EDITORIAL ADVERTISEMENTS CONSTITUTE "AN IMPORTANT OUTLET FOR THE
PROMULGATION OF INFORMATION AND IDEAS BY PERSONS WHO DO NOT THEMSELVES
HAVE ACCESS TO (MEDIA) FACILITIES," AND THE UNABAILABILITY OF SUCH
EDITORIAL ADVERTISING CAN SERVE ONLY "TO SHACKLE THE FIRST AMENDMENT IN
ITS ATTEMPT TO SECURE 'THE WIDEST POSSIBLE DISSEMINATION OF INFORMATION
FROM DIVERSE AND ANTAGONISTIC SOURCES.'"  NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S., AT 266. 

THE FAIRNESS DOCTRINE'S REQUIREMENT OF FULL AND FAIR COVERAGE OF
CONTROVERSIAL ISSUES IS, BEYOND DOUBT, A COMMENDABLE AND, INDEED,
ESSENTIAL TOOL FOR EFFECTIVE REGULATION OF THE BROADCAST INDUSTRY. 
BUT, STANDING ALONE, IT SIMPLY CANNOT ELIMINATE THE NEED FOR A FURTHER,
COMPLEMENTARY AIRING OF CONTROVERSIAL VIEWS THROUGH THE LIMITED
AVAILABILITY OF EDITORIAL ADVERTISING.  INDEED, THE AVAILABILITY OF AT
LEAST SOME OPPORTUNITY FOR EDITORIAL ADVERTISING IS IMPERATIVE IF WE
ARE EVER TO ATTAIN THE "'FREE AND GENERAL DISCUSSION OF PUBLIC MATTERS
(THAT) SEEMS ABSOLUTELY ESSENTIAL TO PREPARE THE PEOPLE FOR AN
INTELLIGENT EXERCISE OF THEIR RIGHTS AS CITIZENS.'"  GROSJEAN V.
AMERICAN PRESS CO., 297 U.S. 233, 250 (1936). 

        III 

MOREOVER, A PROPER BALANCING OF THE COMPETING FIRST AMENDMENT
INTERESTS AT STAKE IN THIS CONTROVERSY MUST CONSIDER, NOT ONLY THE
INTERESTS OF BROADCASTERS AND OF THE LISTENING AND VIEWING PUBLIC, BUT
ALSO THE INDEPENDENT FIRST AMENDMENT INTEREST OF GROUPS AND INDIVIDUALS
IN EFFECTIVE SELF-EXPRESSION.  SEE, E. G., T. EMERSON, TOWARD GENERAL
THEORY OF THE FIRST AMENDMENT 4 - 7 (1966); Z. CHAFEE, FREE SPEECH IN
THE UNITED STATES 33 (1941).  "(SPEECH CONCERNING PUBLIC AFFAIRS . . .
IS THE ESSENCE OF SELF-GOVERNMENT," GARRISON V. LOUISIANA, 379 U.S. 64,
74 - 75 (1964), AND THE FIRST AMENDMENT MUST THEREFORE SAFEGUARD NOT
ONLY THE RIGHT OF THE PUBLIC TO HEAR DEBATE, BUT ALSO THE RIGHT OF
INDIVIDUALS TO PARTICIPATE IN THAT DEBATE AND TO ATTEMPT TO PERSUADE
OTHERS TO THEIR POINTS OF VIEW.  SEE, E. G., THOMAS V. COLLINS, 323
U.S. 415, 429 - 430 (1963).  AND, IN A TIME OF APPARENTLY GROWING
ANONYMITY OF THE INDIVIDUAL IN OUR SOCIETY, IT IS IMPERATIVE THAT WE
TAKE SPECIAL CARE TO PRESERVE THE VITAL FIRST AMENDMENT INTEREST IN
ASSURING "SELF-FULFILLMENT (OF EXPRESSION) FOR EACH INDIVIDUAL." 
POLICE DEPT. OF CHICAGO V. MOSLEY, 408 U.S. 92, 96 (1972).  FOR OUR
CITIZENS MAY NOW FIND GREATER THAN EVER THE NEED TO EXPRESS THEIR OWN
VIEWS DIRECTLY TO THE PUBLIC, RATHER THAN THROUGH A GOVERNMENTALLY
APPOINTED SURROGATE, IF THEY ARE TO FEEL THAT THEY CAN ACHIEVE AT LEAST
SOME MEASURE OF CONTROL OVER THEIR OWN DESTINIES. 

IN LIGHT OF THESE CONSIDERATIONS, THE COURT WOULD CONCEDE, I ASSUME,
THAT OUR CITIZENS HAVE AT LEAST AN ABSTRACT RIGHT TO EXPRESS THEIR
VIEWS ON CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE.  BUT FREEDOM OF
SPEECH DOES NOT EXIST IN THE ABSTRACT.  ON THE CONTRARY, THE RIGHT TO
SPEAK CAN FLOURISH ONLY IF IT IS ALLOWED TO OPERATE IN AN EFFECTIVE
FORUM--WHETHER IT BE A PUBLIC PARK, A SCHOOLROOM, A TOWN MEETING HALL,
A SOAPBOX, OR A RADIO AND TELEVISION FREQUENCY.  FOR IN THE ABSENCE OF
AN EFFECTIVE MEANS OF COMMUNICATION, THE RIGHT TO SPEAK WOULD RING
HOLLOW INDEED.  AND, IN RECOGNITION OF THESE PRINCIPLES, WE HAVE
CONSISTENTLY HELD THAT THE FIRST AMENDMENT EMBODIES, NOT ONLY THE
ABSTRACT RIGHT TO BE FREE FROM CENSORSHIP, BUT ALSO THE RIGHT OF AN
INDIVIDUAL TO UTILIZE AN APPROPRIATE AND EFFECTIVE MEDIUM FOR THE
EXPRESSION OF HIS VIEWS.  SEE, E. G., LLOYD CORP., LTD. V. TANNER, 407
U.".  551, 559 (1972); TINKER V. DES MOINES INDEPENDENT SCHOOL
DISTRICT, 393 U.S. 503 (1969); AMALGAMATED FOOD EMPLOYEES UNION V.
LOGAN VALLEY PLAZA, 391 U.S. 308 (1968); BROWN V. LOUISIANA, 383 U.S.
131 (1966); EDWARDS V. SOUTH CAROLINA, 372 U.S. 229 (1963); KUNZ V. NEW
YORK, 340 U.S. 290 (1951); MARSH V. ALABAMA, 326 U.S. 501 (1946);
JAMISON V. TEXAS, 318 U.S. 413 (1943); SCHNEIDER V. STATE, 308 U.S. 147
(1939); HAGUE V. CIO, 397 U.S. 496 (1939). 

HERE, OF COURSE, THERE CAN BE NO DOUBT THAT THE BROADCAST
FREQUENCIES ALLOTTED TO THE VARIOUS RADIO AND TELEVISION LICENSEES
CONSTITUTE APPROPRIATE "FORUMS" FOR THE DISCUSSION OF CONTROVERSIAL
ISSUES OF PUBLIC IMPORTANCE.  /35/  INDEED, UNLIKE THE STREETS, PARKS,
PUBLIC LIBRARIES, AND OTHER "FORUMS" THAT WE HAVE HELD TO BE
APPROPRIATE FOR THE EXERCISE OF FIRST AMENDMENT RIGHTS, THE BROADCAST
MEDIA ARE DEDICATED SPECIFICALLY TO COMMUNICATION.  AND, SINCE THE
EXPRESSION OF IDEAS--WHETHER POLITICAL, COMMERCIAL, MUSICAL, OR
OTHERWISE--IS THE EXCLUSIVE PURPOSE OF THE BROADCAST SPECTRUM, IT SEEMS
CLEAR THAT THE ADOPTION OF A LIMITED SCHEME OF EDITORIAL ADVERTISING
WOULD IN NO SENSE DIVERT THAT SPECTRUM FROM ITS INTENDED USE.  CF.
LLOYD CORP., LTD. V. TANNER, SUPRA, AT 563; AMALGAMATED FOOD EMPLOYEES
UNION V. LOGAN VALLEY PLAZA, SUPRA, AT 320.     MOREOVER, IT IS EQUALLY
CLEAR THAT, WITH THE ASSISTANCE OF THE FEDERAL GOVERNMENT, THE
BROADCAST INDUSTRY HAS BECOME WHAT IS POTENTIALLY THE MOST EFFICIENT
AND EFFECTIVE "MARKETPLACE OF IDEAS"  EVER DEVISED.  /36/  INDEED, THE
ELECTRONIC MEDIA ARE TODAY "THE PUBLIC'S PRIME SOURCE OF INFORMATION,"
/37/  AND WE HAVE OURSELVES RECOGNIZED THAT BROADCAST "TECHNOLOGY . . .
SUPPLANTS ATOMIZED, RELATIVELY INFORMAL COMMUNICATION WITH MASS MEDIA
AS A PRIME SOURCE OF NATIONAL COHESION AND NEWS . . . ."  RED LION
BROADCASTING CO. V. FCC, 395 U.S., AT 386 N. 15.  THUS, ALTHOUGH "FULL
AND FREE DISCUSSION" OF IDEAS MAY HAVE BEEN A REALITY IN THE HEYDAY OF
POLITICAL PAMPHLETEERING MODERN TECHNOLOGICAL DEVELOPMENTS IN THE FIELD
OF COMMUNICATIONS HAVE MADE THE SOAPBOX ORATOR AND THE LEAFLETEER
VIRTUALLY OBSOLETE.  AND, IN THE LIGHT OF THE CURRENT DOMINANCE OF THE
ELECTRONIC MEDIA AS THE MOST EFFECTIVE MEANS OF REACHING THE PUBLIC,
ANY POLICY THAT ABSOLUTELY DENIES CITIZENS ACCESS TO THE AIRWAVES
NECESSARILY RENDERS EVEN THE CONCEPT OF "FULL AND FREE DISCUSSION"
PRACTICALLY MEANINGLESS. 

REGRETTABLY, IT IS PRECISELY SUCH A POLICY THAT THE COURT UPHOLDS
TODAY.  AND, SINCE EFFECTUATION OF THE INDIVIDUAL'S RIGHT TO SPEAK
THROUGH A LIMITED SCHEME OF EDITORIAL ADVERTISING CAN SERVE ONLY TO
FURTHER, RATHER THAN TO INHIBIT, THE PUBLIC'S INTEREST IN RECEIVING
SUITABLE EXPOSURE TO "UNINHIBITED, ROBUST, AND WIDE-OPEN" DEBATE ON
CONTROVERSIAL ISSUES, THE CHALLENGED BAN CAN BE UPHELD ONLY IF IT IS
DETERMINED THAT SUCH EDITORIAL ADVERTISING WOULD UNJUSTIFIABLY IMPAIR
THE BROADCASTER'S ASSERTEDLY OVERRIDING INTEREST IN EXERCISING ABSOLUTE
CONTROL OVER "HIS" FREQUENCY.  /38/  SUCH AN ANALYSIS, HOWEVER, HARDLY
REFLECTS THE DELICATE BALANCING OF INTERESTS THAT THIS SENSITIVE
QUESTION DEMANDS.  INDEED, THIS "ABSOLUTIST" APPRAOCH WHOLLY DISREGARDS
THE COMPETING FIRST AMENDMENT RIGHTS OF ALL "NON-BROADCASTER" CITIZENS,
IGNORES THE TEACHINGS OF OUR RECENT DECISION IN RED LION BROADCASTING
CO. V. FCC, SUPRA, AND IS NOT SUPPORTED BY THE HISTORICAL PURPOSES
UNDERLYING BROADCAST REGULATION IN THIS NATION. 

PRIOR TO 1927, IT MUST BE REMEMBERED, IT WAS CLEARLY RECOGNIZED THAT
THE BROADCAST SPECTRUM WAS PART OF THE PUBLIC DOMAIN.  AS A RESULT, THE
ALLOCATION OF FREQUENCIES WAS LEFT ENTIRELY TO THE PRIVATE SECTOR, /39/
AND GROUPS AND INDIVIDUALS THEREFORE HAD THE SAME RIGHT OF ACCESS TO
RADIO FACILITIES AS THEY HAD, AND STILL HAVE, TO THE PRINTED PRESS-
THAT IS, "ANYONE WHO WILL MAY TRANSMIT."  /40/  UNDER THIS SCHEME,
HOWEVER, THE NUMBER OF BROADCASTERS INCREASED SO DRAMATICALLY THAT BY
1927 EVERY FREQUENCY WAS OCCUPIED BY AT LEAST ONE STATION, AND MANY
WERE OCCUPIED BY SEVERAL.  "THE RESULT WAS CONFUSION AND CHAOS.  WITH
EVERYBODY ON THE AIR, NOBODY COULD BE HEARD."  NATIONAL BROADCASTING
CO. V. UNITED STATES, 319 U.S. 190, 212 (1943).  IT SOON BECAME
"APPARENT THAT BROADCAST FREQUENCIES CONSTITUTED A SCARCE RESOURCE
WHOSE USE COULD BE REGULATED AND RATIONALIZED ONLY BY THE GOVERNMENT." 
RED LION BROADCASTING CO. V. FCC, SUPRA, AT 376.  THUS, IN THE RADIO
ACT OF 1927, 44 STAT. 1162, CONGRESS PLACED THE BROADCAST SPECTRUM
UNDER FEDERAL REGULATION AND SOUGHT TO RECONCILE COMPETITING USES OF
THE AIRWAVES BY SETTING ASIDE A LIMITED NUMBER OF FREQUENCIES FOR EACH
OF THE IMPORTANT USES OF RADIO.  /41/  AND, SINCE THE NUMBER OF
FREQUENCIES ALLOCATED TO PUBLIC BROADCASTING WAS NECESSARILY LIMITED,
THE GOVERNMENT WAS COMPELLED TO GRANT LICENSES TO SOME APPLICANTS WHILE
DENYING THEM TO OTHERS.  SEE GENERALLY RED LION BROADCASTING CO. V.
FCC, SUPRA, AT 375 - 377, 388; NATIONAL BROADCASTING CO. V. UNITED
STATES, SUPRA, AT 210 - 214. 

ALTHOUGH THE OVERRIDING NEED TO AVOID OVERCROWDING THE AIRWAVES
CLEARLY JUSTIFIES THE IMPOSITION OF A CEILING ON THE NUMBER OF
INDIVIDUALS WHO WILL BE PERMITTED TO OPERATE BROADCAST STATIONS /42/
AND, INDEED, RENDERS IT "IDLE TO POSIT AN UNABRIDGEABLE FIRST AMENDMENT
RIGHT TO BROADCAST COMPARABLE TO THE RIGHT OF EVERY INDIVIDUAL TO
SPEAK, WRITE, OR PUBLISH,"  /43/ IT DOES NOT IN ANY SENSE DICTATE THAT
THE CONTINUING FIRST AMENDMENT RIGHTS OF ALL NONLICENSEES BE BRUSHED
ASIDE ENTIRELY.  UNDER THE EXISTING SYSTEM, BROADCAST LICENSEES ARE
GRANTED A PREFERRED STATUS WITH RESPECT TO THE AIRWAVES, NOT BECAUSE
THEY HAVE COMPETED SUCCESSFULLY IN THE FREE MARKET BUT, RATHER,
"BECAUSE OF THEIR INITIAL GOVERNMENT SELECTION . . . ."  RED LION
BROADCASTING CO. V. FCC, SUPRA, AT 400.  AND, IN RETURN FOR THAT
"PREFERRED STATUS," LICENSEES MUST RESPECT THE COMPETING FIRST
AMENDMENT RIGHTS OF OTHERS.  THUS, ALTHOUGH THE BROADCASTER HAS A CLEAR
FIRST AMENDMENT RIGHT TO BE FREE FROM GOVERNMENT CENSORSHIP IN THE
EXPRESSION OF HIS OWN VIEWS /44/  AND, INDEED, HAS A SIGNIFICANT
INTEREST IN EXERCISING REASONABLE JOURNALISTIC CONTROL OVER THE USE OF
HIS FACILITIES, "(THE RIGHT OF FREE SPEECH OF A BROADCASTER . . . DOES
NOT EMBRACE A RIGHT TO SNUFF OUT THE FREE SPEECH OF OTHERS."  ID., AT
387.  INDEED, AFTER CAREFUL CONSIDERATION OF THE NATURE OF BROADCAST
REGULATION IN THIS COUNTRY, WE HAVE SPECIFICALLY DECLARED THAT 

"AS FAR AS THE FIRST AMENDMENT IS CONCERNED THOSE WHO ARE LICENSED
STAND NO BETTER THAN THOSE TO WHOM LICENSES ARE REFUSED.  A LICENSE
PERMITS BROADCASTING, BUT THE LICENSEE HAS NO CONSTITUTIONAL RIGHT TO
MONOPOLIZE A RADIO FREQUENCY TO THE EXCLUSION OF HIS FELLOW CITIZENS." 
ID., AT 389.  BECAUSE I BELIEVE THIS VIEW IS AS SOUND TODAY AS WHEN
VOICED ONLY FOUR YEARS AGO, I CAN ONLY CONCLUDE THAT THERE IS SIMPLY NO
OVERRIDING FIRST AMENDMENT INTEREST OF BROADCASTERS THAT CAN JUSTIFY
THE ABSOLUTE EXCLUSION OF VIRTUALLY ALL OUR CITIZENS FROM THE MOST
EFFECTIVE "MARKETPLACE OF IDEAS" EVER DEVISED. 

THIS IS NOT TO SAY, OF COURSE, THAT BROADCASTERS HAVE NO FIRST
AMENDMENT INTEREST IN EXERCISING JOURNALISTIC SUPERVISION OVER THE USE
OF THEIR FACILITIES.  ON THE CONTRARY, SUCH AN INTEREST DOES INDEED
EXIST, AND IT IS AN INTEREST THAT MUST BE WEIGHED HEAVILY IN ANY
LEGITIMATE EFFORT TO BALANCE THE COMPETING FIRST AMENDMENT INTERESTS
INVOLVED IN THIS CASE.  IN STRIKING SUCH A BALANCE, HOWEVER, IT MUST BE
EMPHASIZED THAT THIS CASE DEALS ONLY WITH THE ALLOCATION OF ADVERTISING
TIME--AIR TIME THAT BROADCASTERS REGULARLY RELINQUISH TO OTHERS WITHOUT
THE RETENTION OF SIGNIFICANT EDITORIAL CONTROL.  THUS, WE ARE CONCERNED
HERE, NOT WITH THE SPEECH OF BROADCASTERS THEMSELVES, /45/  BUT,
RATHER, WITH THEIR "RIGHT" TO DECIDE WHICH OTHER INDIVIDUALS WILL BE
GIVEN AN OPPORTUNITY TO SPEAK IN A FORUM THAT HAS ALREADY BEEN OPENED
TO THE UBLIC. 

VIEWED IN THIS CONTEXT, THE ABSOLUTE BAN ON EDITORIAL ADVERTISING
SEEMS PARTICULARLY OFFENSIVE BECAUSE, ALTHOUGH BROADCASTERS REFUSE TO
SELL ANY AIR TIME WHATEVER TO GROUPS OR INDIVIDUALS WISHING TO SPEAK
OUT ON CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE, THEY MAKE SUCH AIR
TIME READILY AVAILABLE TO THOSE "COMMERCIAL" ADVERTISERS WHO SEEK TO
PEDDLE THEIR GOODS AND SERVICES TO THE PUBLIC.  THUS, AS THE SYSTEM NOW
OPERATES ANY PERSON WISHING TO MARKET A PARTICULAR BRAND OF BEER, SOAP,
TOOTHPASTE, OR DEODORANT HAS DIRECT, PERSONAL, AND INSTANTANEOUS ACCESS
TO THE ELECTRONIC MEDIA.  HE CAN PRESENT HIS OWN MESSAGE, IN HIS OWN
WORDS, IN ANY FORMAT HE SELECTS, AND AT A TIME OF HIS OWN CHOOSING. 
YET A SIMILAR INDIVIDUAL SEEKING TO DISCUSS WAR, PEACE, POLLUTION, OR
THE SUFFERING OF THE POOR IS DENIED THIS RIGHT TO SPEAK.  INSTEAD, HE
IS COMPELLED TO RELY ON THE BENEFICIENCE OF A CORPORATE "TRUSTEE"
APPOINTED BY THE GOVERNMENT TO ARGUE HIS CASE FOR HIM. 

IT HAS LONG BEEN RECOGNIZED, HOWEVER, THAT ALTHOUGH ACCESS TO PUBLIC
FORUMS MAY BE SUBJECTED TO REASONABLE "TIME, PLACE, AND MANNER"
REGULATIONS, /46/  "(SELECTIVE EXCLUSIONS FROM A PUBLIC FORUM MAY NOT
BE BASED ON CONTENT ALONE . . . ."  POLICE DEPT. OF CHICAGO V. MOSLEY,
408 U.S., AT 96; 

SEE, E. G., SHUTTLESWORTH V. CITY OF BIRMINGHAM, 394 U.S. 147
(1969); EDWARDS V. SOUTH CAROLINA, 372 U.S. 229 (1963); FOWLER V. RHODE
ISLAND, 345 U.S. 67 (1953); NIEMOTKO V. MARYLAND, 340 U.S. 268 (1951);
SAIA V. NEW YORK, 334 U.S. 558 (1948).  HERE, OF COURSE, THE
DIFFERENTIAL TREATMENT ACCORDED "COMMERCIAL" AND "CONTROVERSIAL" SPEECH
CLEARLY VIOLATES THAT PRINCIPLE.  /47/  MOREOVER, AND NOT WITHOUT SOME
IRONY, THE FAVORED TREATMENT GIVEN "COMMERCIAL" SPEECH UNDER THE
EXISTING SCHEME CLEARLY REVERSES TRADITIONAL FIRST AMENDMENT
PRIORITIES.  FOR IT HAS GENERALLY BEEN UNDERSTOOD THAT "COMMERCIAL"
SPEECH ENJOYS LESS FIRST AMENDMENT PROTECTION THAN SPEECH DIRECTED AT
THE DISCUSSION OF CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE.  SEE, E.
G., BREARD V. ALEXANDRIA, 341 U.S. 622 (1951); VALENTINE V.
CHRESTENSEN, 316 U.S. 52 (1942). 

THE FIRST AMENDMENT VALUES OF INDIVIDUAL SELFFULFILLMENT THROUGH
EXPRESSION AND INDIVIDUAL PARTICIPATION IN PUBLIC DEBATE ARE CENTRAL TO
OUR CONCEPT OF LIBERTY.  IF THESE VALUES ARE TO SURVIVE IN THE AGE OF
TECHNOLOGY, IT IS ESSENTIAL THAT INDIVIDUALS BE PERMITTED AT LEAST SOME
OPPORTUNITY TO EXPRESS THEIR VIEWS ON PUBLIC ISSUES OVER THE ELECTRONIC
MEDIA.  BALANCING THOSE INTERESTS AGAINST THE LIMITED INTEREST OF
BROADCASTERS IN EXERCISING "JOURNALISTIC SUPERVISION" OVER THE MERE
ALLOCATION OF ADVERTISING TIME THAT IS ALREADY MADE AVAILABLE TO SOME
MEMBERS OF THE PUBLIC, I SIMPLY CANNOT CONCLUDE THAT THE INTEREST OF
BROADCASTERS MUST PREVAIL. 

        IV 

FINALLY, THE COURT RAISES THE SPECTER OF ADMINISTRATIVE APOCALYPSE
AS JUSTIFICATION FOR ITS DECISION TODAY.  THE COURT'S FEARS DERIVE
LARGELY FROM THE ASSUMPTION, IMPLICIT IN ITS ANALYSIS, THAT THE COURT
OF APPEALS MANDATED AN ABSOLUTE RIGHT OF ACCESS TO THE AIRWAVES.  IN
REALITY, HOWEVER, THE ISSUE IN THESE CASES IS NOT WHETHER THERE IS AN
ABSOLUTE RIGHT OF ACCESS BUT, RATHER, WHETHER THERE MAY BE AN ABSOLUTE
DENIAL OF SUCH ACCESS.  THE DIFFERENCE IS, OF COURSE, CRUCIAL, AND THE
COURT'S MISCONCEPTION OF THE ISSUE SERIOUSLY DISTORTS ITS EVALUATION OF
THE ADMINISTRATIVE DIFFICULTIES THAT AN INVALIDATION OF THE ABSOLUTE
BAN MIGHT CONCEIVABLY ENTAIL. 

SPECIFICALLY, THE COURT HYPOTHESIZES THREE POTENTIAL SOURCES OF
DIFFICULTY:  (1) THE AVAILABILITY OF EDITORIAL ADVERTISING MIGHT, IN
THE ABSENCE OF ADJUSTMENTS IN THE SYSTEM, TEND TO FAVOR THE WEALTHY;
(2) APPLICATION OF THE FAIRNESS DOCTRINE TO EDITORIAL ADVERTISING MIGHT
ADVERSELY AFFECT THE OPERATION OF THAT DOCTRINE; AND (3) REGULATION OF
EDITORIAL ADVERTISING MIGHT LEAD TO AN ENLARGEMENT OF GOVERNMENT
CONTROL OVER THE CONTENT OF BROADCAST DISCUSSION.  THESE ARE, OF
COURSE, LEGITIMATE AND, INDEED, IMPORTANT CONCERNS.  BUT, AT THE
PRESENT TIME, THEY ARE CONCERNS--NOT REALITIES.  WE SIMPLY HAVE NO SURE
WAY OF KNOWING WHETHER, AND TO WHAT EXTENT, IF ANY, THESE POTENTIAL
DIFFICULTIES WILL ACTUALLY MATERIALIZE.  THE COURT'S BARE ASSUMPTION
THAT THESE HYPOTHETICAL PROBLEMS ARE BOTH INEVITABLE AND INSURMOUNTABLE
INDICATES AN UTTER LACK OF CONFIDENCE IN THE ABILITY OF THE COMMISSION
AND LICENSEES TO ADJUST TO THE CHANGING CONDITIONS OF A DYNAMIC
MEDIUM.  THIS SUDDEN LACK OF CONFIDENCE IS, OF COURSE, STRIKINGLY
INCONSISTENT WITH THE GENERAL PROPOSITIONS UNDERLYING ALL OTHER ASPECTS
OF THE COURT'S APPROACH TO THIS CASE. 

MOREOVER, IT IS NOTEWORTHY THAT, SOME 28 YEARS AGO, THE COMMISSION
ITSELF DECLARED THAT 

"THE OPERATION OF ANY STATION UNDER THE EXTREME PRINCIPLES THAT NO
TIME SHALL BE SOLD FOR THE DISCUSSION OF CONTROVERSIAL PUBLIC ISSUES .
. . IS INCONSISTENT WITH THE CONCEPT OF PUBLIC INTEREST.  . . . THE
COMMISSION RECOGNIZES THAT GOOD PROGRAM BALANCE MAY NOT PERMIT THE SALE
OR DONATION OF TIME TO ALL WHO MAY SEEK IT FOR SUCH PURPOSES AND THAT
DIFFICULT PROBLEMS CALLING FOR CAREFUL JUDGMENT ON THE PART OF STATION
MANAGEMENT MAY BE INVOLVED IN DECIDING AMONG APPLICANTS FOR TIME WHEN
ALL CANNOT BE ACCOMMODATED.  HOWEVER, COMPETENT MANAGEMENT SHOULD BE
ABLE TO MEET SUCH PROBLEMS IN THE PUBLIC INTEREST AND WITH FAIRNESS TO
ALL CONCERNED.  THE FACT THAT IT PLACES AN ARDUOUS TASK ON MANAGEMENT
SHOULD NOT BE MADE A REASON FOR EVADING THE ISSUE BY A STRICT RULE
AGAINST THE SALE OF TIME FOR ANY PROGRAMS OF THE TYPE MENTIONED." 
UNITED BROADCASTING CO., F.C.C. 515, 518 (1945).  I CAN SEE NO REASON
WHY THE COMMISSION AND LICENSEES SHOULD BE DEEMED ANY LESS COMPETENT
TODAY THEN THEY WERE IN 1945.  AND EVEN IF INTERVENING DEVELOPMENTS
HAVE INCREASED THE COMPLEXITIES INVOLVED IN IMPLEMENTING A LIMITED
RIGHT OF ACCESS, THERE IS CERTAINLY NO DEARTH OF PROPOSED SOLUTIONS TO
THE POTENTIAL DIFFICULTIES FEARED BY THE COURT.  SEE, E. G., CANBY, THE
FIRST AMENDMENT RIGHT TO PERSUADE:  ACCESS TO RADIO AND TELEVISION, 19
U.C.L.A.L. REV. 723, 754 - 757 (1972); MALONE, BROADCASTING, THE
RELUCTANT DRAGON:  WILL THE FIRST AMENDMENT RIGHT OF ACCESS END THE
SUPPRESSING OF CONTROVERSIAL IDEAS?, 5 U. MICH. J. L. REF. 193, 252 -
269 (1972); JOHNSON & WESTEN, A TWENTIETH-CENTURY SOAPBOX:  THE RIGHT
TO PURCHASE RADIO AND TELEVISION TIME, 57 VA. L. REV. 574 (1971); NOTE,
85 HARV. L. REV. 689, 693 - 699 (1972). 

WITH THESE CONSIDERATIONS IN MIND, THE COURT OF APPEALS CONFINED
ITSELF TO INVALIDATING THE FLAT BAN ALONE, LEAVING BROAD LATITUDE /48/
TO THE COMMISSION AND LICENSEES TO DEVELOP IN THE FIRST INSTANCE
REASONABLE REGULATIONS TO GOVERN THE AVAILABILITY OF EDITORIAL
ADVERTISING.  IN THE CONTEXT OF THESE CASES, THIS WAS SURELY THE WISEST
COURSE TO FOLLOW, FOR "IF EXPERIENCE WITH THE ADMINISTRATION OF THESE
DOCTRINES INDICATES THAT THEY HAVE THE NET EFFECT OF REDUCING RATHER
THAN ENHANCING (FIRST AMENDMENT VALUES), THERE WILL BE TIME ENOUGH TO
RECONSIDER THE CONSTITUTIONAL IMPLICATIONS."  RED LION BROADCASTING CO.
V. FCC, 395 U.S., AT 393.     FOR THE PRESENT, HOWEVER, AND UNTIL SUCH
TIME, IF EVER AS THESE ASSERTEDLY "OVERRIDING" ADMINISTRATIVE
DIFFICULTIES ACTUALLY MATERIALIZE, I MUST AGREE WITH THE CONCLUSION OF
THE COURT OF APPEALS THAT ALTHOUGH "IT MAY UNSETTLE SOME OF US TO SEE
AN ANTIWAR MESSAGE OR A POLITICAL PARTY MESSAGE IN THE ACCUSTOMED PLACE
OF A SOAP OR BEER COMMERCIAL . . . WE MUST NOT EQUATE WHAT IS HABITUAL
WITH WHAT IS RIGHT--OR WHAT IS CONSTITUTIONAL.  A SOCIETY ALREADY SO
SATURATED WITH COMMERCIALISM CAN WELL AFFORD ANOTHER OUTLET FOR SPEECH
ON PUBLIC ISSUES.  ALL THAT WE MAY LOSE IS SOME OF OUR APATHY."  /49/ 

/1/  SEE BUSINESS EXECUTIVES MOVE FOR VIETNAM PEACE, 25 F.C.C. 2D
242 (1970); DEMOCRATIC NATIONAL COMMITTEE, 25 F.C.C. 2D 216 (1970). 

/2/  I DO NOT SPECIFICALLY ADDRESS THE "STATUTORY" QUESTION IN THIS
CASE BECAUSE, IN PRACTICAL EFFECT, THE CONSIDERATIONS UNDERLYING THE
"STATUTORY" QUESTION ARE IN MANY RESPECTS SIMILAR TO THOSE RELEVANT TO
THE "SUBSTANCE" OF THE "CONSTITUTIONAL" CLAIM.  THERE IS ONE ASPECT OF
THE COURT'S "STATUTORY" DISCUSSION, HOWEVER, THAT MERITS AT LEAST BRIEF
ATTENTION.  IN UPHOLDING THE ABSOLUTE BAN ON THE SALE OF EDITORIAL
ADVERTISING, THE COURT RELIES HEAVILY UPON 47 U.S.C. ^ 153 (H), WHICH
DECLARES THAT BROADCASTERS SHALL NOT BE DEEMED "COMMON CARRIERS."  IN
MY VIEW, THIS RELIANCE IS MISPLACED.  EVEN A CURSORY EXAMINATION OF THE
LEGISLATIVE HISTORY OF THIS PROVISION REVEALS THAT IT WAS ENACTED IN
RECOGNITION OF THE FACT THAT TRADITIONAL DOCTRINES GOVERNING TRUE
"COMMON CARRIERS," SUCH AS TRANSPORTATION COMPANIES, WOULD NOT SUIT THE
PARTICULAR PROBLEMS OF RADIO BROADCASTING.  SPECIFICALLY, IT WAS FEARED
THAT SUCH "COMMON CARRIER" STATUS FOR BROADCASTERS WOULD MEAN THAT THEY
"WOULD HAVE TO GIVE ALL THEIR TIME TO (PUBLIC ISSUES)."  67 CONG. REC.
12504 (SEN. DILL); SEE ALSO IBID.  (SEN. BROUSSARD); ID., AT 12356
(SEN. FESS).  SECTION 153 (H) WAS INTENDED SOLELY TO ASSURE THAT
BROADCASTERS WOULD NOT BE REQUIRED TO SURRENDER ALL OF THEIR AIR TIME
TO WILLING PURCHASERS; IT DOES NOT BEAR UPON THE QUESTION WHETHER THEY
MAY BE REQUIRED TO SELL A REASONABLE AND LIMITED AMOUNT OF AIR TIME TO
MEMBERS OF THE PUBLIC FOR DISCUSSION OF CONTROVERSIAL ISSUES.  SEE 2 Z.
CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS 635 N. 75 (1947).  INDEED,
THE COMMISSION ITSELF HAS REJECTED THE COURT'S INTERPRETATION OF ^ 153
(H) WHEN IT DECLARED, OVER 25 YEARS AGO, THAT "THE OPERATION OF ANY
STATION UNDER THE EXTREME PRINCIPLES THAT NO TIME SHALL BE SOLD FOR THE
DISCUSSION OF CONTROVERSIAL PUBLIC ISSUES . . . IS INCONSISTENT WITH
THE CONCEPT OF PUBLIC INTEREST ESTABLISHED BY THE COMMUNICATIONS ACT. 
. . ."  UNITED BROADCASTING CO., 10 F.C.C. 515, 518 (1945). 

/3/  SEE GENERALLY BUSINESS EXECUTIVES MOVE FOR VIETNAM PEACE, 25
F.C.C. 2D, AT 253 - 264 (DISSENTING OPINION), WHEREIN COMMISSIONER
JOHNSON IDENTIFIED NO LESS THAN EIGHT SEPARATE INDICIA OF "GOVERNMENTAL
ACTION" INVOLVED IN THE PROMULGATION AND ENFORCEMENT OF THE CHALLENGED
BROADCASTER POLICY. 

/4/  FOR A DISCUSSION OF THE ATTRIBUTES OF THE ELECTROMAGNETIC
SPECTRUM, SEE GENERALLY W. JONES, REGULATED INDUSTRIES 1019 (1967);
LEVIN, THE RADIO SPECTRUM RESOURCE, 11 J. LAW & ECON.  433 (1968). 

/5/  IT IS TRUE, OF COURSE, THAT UNLIKE THE STATE IN BURTON, THE
FEDERAL GOVERNMENT HERE DOES NOT RECEIVE SUBSTANTIAL FINANCIAL
COMPENSATION FOR THE USE OF THE "PUBLIC" PROPERTY.  SEE BURTON V.
WILMINGTON PARKING AUTHORITY, 365 U.S. 715, 723 - 724 (1961); MOOSE
LODGE NO. 107 V. IRVIS, 407 U.S. 163, 174 - 175 (1972).  NEVERTHELESS,
THE ABSENCE OF SUCH A FINANCIAL ARRANGEMENT REPRESENTS, IN PRACTICAL
EFFECT, GOVERNMENT SUBSIDIZATION OF BROADCASTERS, THEREBY ENHANCING THE
DEGREE OF GOVERNMENTAL INVOLVEMENT.  CF. KALVEN, BROADCASTING PUBLIC
POLICY AND THE FIRST AMENDMENT, 10 J. LAW & ECON.  15, 31 (1967). 
MOREOVER, AS IN BURTON, THE PUBLICLY OWNED PROPERTY IS "NOT SURPLUS
STATE PROPERTY" BUT, RATHER, CONSTITUTES AN "INTEGRAL AND, INDEED,
INDISPENSABLE PART" OF THE GOVERNMENTAL SCHEME.  BURTON V. WILMINGTON
PARKING AUTHORITY, SUPRA, AT 723.  SEE ALSO 47 U.S.C. ^ 303 (G). 

/6/  FOR A DISCUSSION OF THE FAIRNESS DOCTRINE AND ITS RELEVANCE TO
THIS CASE, SEE TEXT AND NOTES, AT NN. 15 - 34, INFRA. 

/7/  INDEED, THE COMMUNICATIONS ACT OF 1934 MAKES IT A CRIMINAL
OFFENSE TO OPERATE A BROADCAST TRANSMITTER WITHOUT A LICENSE.  SEE 47
U.S.C. ^ 501.  THUS, THE FEDERAL GOVERNMENT SPECIFICALLY INSULATES THE
LICENSEE FROM ANY REAL THREAT OF ECONOMIC COMPETITION. 

/8/  THUS, THE COMMUNICATIONS ACT OF 1934 AUTHORIZES THE FEDERAL
COMMUNICATIONS COMMISSION TO ASSIGN FREQUENCY BANDS, 47 U.S.C. ^ 303
(C); ALLOCATE LICENSES BY LOCATION, ^ 303 (D); REGULATE APPARATUS, ^
303 (E); ESTABLISH SERVICE AREAS, ^ 303 (H); REGULATE CHAIN OWNERSHIP,
^ 303 (I); REQUIRE THE KEEPING OF DETAILED RECORDS, ^ 303 (J);
ESTABLISH QUALIFICATIONS OF LICENSEES, ^ 303 (L); SUSPEND LICENSES, ^
303 (M) (1); INSPECT STATION FACILITIES, ^ 303 (N); REQUIRE PUBLICATION
OF CALL LETTERS AND OTHER INFORMATION, ^ 303 (P); MAKE RULES TO EFFECT
REGULATION OF RADIO AND TELEVISION, ^ 303 (R); REQUIRE THAT TELEVISION
SETS BE CAPABLE OF RECEIVING ALL SIGNALS, ^ 303 (S); REGULATE THE
GRANTING OF LICENSES AND THE TERMS THEREOF, ^^ 307, 309; PRESCRIBE
INFORMATION TO BE SUPPLIED BY APPLICANTS FOR LICENSES, ^ 308 (B);
REGULATE THE TRANSFER OF LICENSES, ^ 310; IMPOSE SANCTIONS ON
LICENSEES, INCLUDING REVOCATION OF LICENSE, ^ 312; REQUIRE FAIR
COVERAGE OF CONTROVERSIAL ISSUES, ^ 315; CONTROL THE OPERATION OF
TRANSMITTING APPARATUS, ^ 318; AND PROHIBIT THE USE OF OFFENSIVE
LANGUAGE, 18 U.S.C. ^ 1464. 

/9/  PURSUANT TO STATUTORY AUTHORITY, SEE N. 8, SUPRA, THE
COMMISSION HAS PROMULGATED MYRIAD REGULATIONS GOVERNING ALL ASPECTS OF
LICENSEE CONDUCT.  SEE 47 CFR ^ 73.17 ET SEQ. THESE REGULATIONS AFFECT
SUCH MATTERS AS HOURS OF OPERATION, ^ 73.23; MULTIPLE OWNERSHIP OF
LICENSES BY A SINGLE INDIVIDUAL, ^ 73.35; STATION LOCATION AND PROGRAM
ORIGINATION, ^ 73.30; MAINTENANCE OF DETAILED LOGS OF PROGRAMMING,
OPERATION, AND MAINTENANCE, ^^ 73.111 - 116; BILLING PRACTICES, ^
73.124; THE PERSONAL ATTACK AND POLITICAL EDITORIAL FAIRNESS
REQUIREMENTS, ^ 73.123; RELATIONSHIP OF LICENSEES TO ETWORKS, ^^ 73.131
- 139; PERMISSIBLE EQUIPMENT, ^^ 73.39 - 50.  THE ABOVE-CITED
REGULATIONS RELATE ONLY TO AM RADIO, BUT SIMILAR REGULATIONS EXIST FOR
FM RADIO, ^ 73.201 ET SEQ., AND TELEVISION, ^ 73.601 ET SEQ. 

/10/  IN ADDITION, THE COURT CONTENDS THAT, BECAUSE OF THE FAIRNESS
DOCTRINE, THE CHALLENGED BROADCASTER POLICY DOES NOT DISCRIMINATE
AGAINST CONTROVERSIAL SPEECH.  SEE ANTE, AT 128 - 130. 

/11/  MOREOVER, THE APPROPRIATENESS OF A PARTICULAR FORUM, EVEN IF
PRIVATELY OWNED, FOR EFFECTIVE COMMUNICATION HAS IN SOME INSTANCES BEEN
EMPHASIZED TO ESTABLISH THE RELEVANCE OF FIRST AMENDMENT PROTECTIONS. 
SEE, E. G., AMALGAMATED FOOD EMPLOYEES UNION V. LOGAN VALLEY PLAZA, 391
U.S. 308 (1968); MARSH V. ALABAMA, 326 U.S. 501 (1946).  HERE, AS THE
COURT OF APPEALS RECOGNIZED, "THE BROADCAST MEDIA ARE SPECIFICALLY
DEDICATED TO COMMUNICATION.  THEY FUNCTION AS BOTH OUR FOREMOST FORUM
FOR PUBLIC SPEECH AND OUR MOST IMPORTANT EDUCATOR OF AN INFORMED
PEOPLE."  146 U.S. APP.D.C. 181, 192, 450 F. 2D 642, 653.  SEE ALSO
TEXT AND NOTES, AT NN. 35 - 37, INFRA. 

/12/  IN HIS CONCURRING OPINION, MY BROTHER STEWART SUGGESTS THAT A
FINDING OF GOVERNMENTAL ACTION IN THIS CONTEXT NECESSARILY MEANS THAT
"PRIVATE BROADCASTERS ARE GOVERNMENT."  ANTE, AT 139. 

IN MY VIEW, THIS ASSERTION REFLECTS A COMPLETE MISUNDERSTANDING OF
THE NATURE OF THE GOVERNMENTAL INVOLVEMENT IN THIS CASE.  HERE, THE
GOVERNMENT HAS SELECTED THE PERSONS WHO WILL BE PERMITTED TO OPERATE A
BROADCAST STATION, EXTENSIVELY REGULATES THOSE BROADCASTERS, AND HAS
SPECIFICALLY APPROVED THE CHALLENGED BROADCASTER POLICY.  THUS, THE
COMMANDS OF THE FIRST AMENDMENT COME INTO PLAY, NOT BECAUSE "PRIVATE
BROADCASTERS ARE GOVERNMENT," BUT, RATHER, BECAUSE THE GOVERNMENT "HAS
SO FAR INSINUATED ITSELF INTO A POSITION" OF PARTICIPATION IN THE
CHALLENGED POLICY AS TO MAKE THE GOVERNMENT ITSELF RESPONSIBLE FOR ITS
EFFECTS.  SIMILARLY, I CANNOT AGREE WITH MY BROTHER STEWART'S
SUGGESTION THAT A FINDING OF GOVERNMENTAL INVOLVEMENT IN THIS CASE
"WOULD . . . SIMPLY STRIP BROADCASTERS OF THEIR OWN FIRST AMENDMENT
RIGHTS."  IBID.  THE ACTIONS OF A PURELY PRIVATE INDIVIDUAL ARE, OF
COURSE, NOT SUBJECT TO THE CONSTRAINTS OF THE FIRST AMENDMENT.  BUT
WHERE, AS HERE, THE GOVERNMENT HAS IMPLICATED ITSELF IN THE ACTIONS OF
AN OTHERWISE PRIVATE INDIVIDUAL, THAT INDIVIDUAL MUST EXERCISE HIS OWN
RIGHTS WITH DUE REGARD FOR THE FIRST AMENDMENT RIGHTS OF OTHERS.  IN
OTHER WORDS, AN ACCOMMODATION OF COMPETING RIGHTS IS REQUIRED, AND
"BALANCING," NOT THE "ABSOLUTIST" APPROACH SUGGESTED BY MY BROTHER
STEWART, IS THE RESULT.  INDEED, IT IS THIS MISUNDERSTANDING OF THE
SIGNIFICANCE OF GOVERNMENTAL INVOLVEMENT THAT APPARENTLY LEADS TO MY
BROTHER STEWART'S DISAGREEMENT WITH MY BROTHERS WHITE, BLACKMUN, AND
POWELL AS TO THE RELATIONSHIP BETWEEN THE "PUBLIC INTEREST" STANDARD OF
THE ACT AND FIRST AMENDMENT "VALUES." 

I MIGHT ALSO NOTE THAT, CONTRARY TO THE SUGGESTION OF MY BROTHER
STEWART, A FINDING OF GOVERNMENTAL INVOLVEMENT IN THIS CASE DOES NOT IN
ANY SENSE COMMAND A SIMILAR CONCLUSION UITH RESPECT TO NEWSPAPERS. 
INDEED, THE FACTORS THAT COMPEL THE CONCLUSION THAT THE GOVERNMENT IS
INVOLVED IN THE PROMULGATION AND ENFORCEMENT OF THE CHALLENGED
BROADCASTER POLICY HAVE SIMPLY NO RELEVANCE TO NEWSPAPERS.  THE
DECISION AS TO WHO SHALL OPERATE NEWSPAPERS IS MADE IN THE FREE MARKET,
NOT BY GOVERNMENT FIAT.  THE NEWSPAPER INDUSTRY IS NOT EXTENSIVELY
REGULATED AND, INDEED, IN LIGHT OF THE DIFFERENCES BETWEEN THE
ELECTRONIC AND PRINTED MEDIA, SUCH REGULATION WOULD VIOLATE THE FIRST
AMENDMENT WITH RESPECT TO NEWSPAPERS.  FINALLY, SINCE SUCH REGULATION
OF NEWSPAPERS WOULD BE IMPOSSIBLE, IT WOULD LIKEWISE BE IMPOSSIBLE FOR
THE GOVERNMENT TO APPROVE AN EXCLUSIONARY POLICY OF NEWSPAPERS IN THE
SENSE THAT IT HAS APPROVED THE CHALLENGED POLICY OF THE BROADCASTERS. 

/13/  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 270 (1964); SEE
ALSO PICKERING V. BOARD OF EDUCATION, 391 U.S. 563, 473 (1968); MILLS
V. ALABAMA, 384 U.S. 214, 218 (1966). 

/14/  THIS WAS NOT NEW DOCTRINE, FOR WE HAVE LONG RECOGNIZED IN A
VARIETY OF CONTEXTS THAT THE FIRST AMENDMENT "NECESSARILY PROTECTS THE
RIGHT TO RECEIVE (INFORMATION)."  MARTIN V. CITY OF STRUTHERS, 319 U.S.
141, 143 (1943); SEE, E. G., STANLEY V. GEORGIA, 394 U.S. 557, 564
(1969); TIME, INC. V. HILL, 385 U.S. 374, 388 (1967); GRISWOLD V.
CONNECTICUT, 381 U.S. 479, 482 (1965); LAMONT V. POSTMASTER GENERAL,
381 U.S. 301 (1965). 

/15/  THE FAIRNESS DOCTRINE WAS RECOGNIZED AND IMPLICITLY APPROVED BY
CONGRESS IN THE 1959 AMENDMENTS TO ^ 315 OF THE COMMUNICATIONS ACT. 
ACT OF SEPT. 14, 1959, ^ 1, 73 STAT. 557, 47 U.S.C. ^ 315 (A).  AS
AMENDED, ^ 315 (A) RECOGNIZES THE OBLIGATION OF BROADCASTERS "TO
OPERATE IN THE PUBLIC INTEREST AND TO AFFORD REASONABLE OPPORTUNITY FOR
THE DISCUSSION OF CONFLICTING VIEWS ON ISSUES OF PUBLIC IMPORTANCE." 

/16/  THE FAIRNESS DOCTRINE WAS FIRST FULLY SET FORTH IN REPORT IN
THE MATTER OF EDITORIALIZING BY BROADCAST LICENSEES, 13 F.C.C. 1246
(1949), AND WAS ELABORATED UPON IN APPLICABILITY OF THE FAIRNESS
DOCTRINE IN THE HANDLING OF CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE,
29 FED. REG. 10415 (1964).  THE STATUTORY AUTHORITY OF THE COMMISSION
TO PROMULGATE THIS DOCTRINE AND RELATED REGULATIONS DERIVES FROM THE
MANDATE TO THE "COMMISSION FROM TIME TO TIME, AS PUBLIC CONVENIENCE,
INTEREST, OR NECESSITY REQUIRES," TO PROMULGATE "SUCH RULES AND
REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS AND CONDITIONS . . . AS MAY
BE NECESSARY TO CARRY OUT THE PROVISIONS OF (THE ACT).  . . ."  47
U.S.C. ^^ 303, 303 (R). 

/17/ SEE JOHN J. DEMPSEY, 6 P & F RADIO REG. 615 (1950); SEE ALSO
METROPOLITAN BROADCASTING CORP., 19 P & F RADIO REG. 602 (1960); THE
EVENING NEWS ASSN., 6 P & F RADIO REG. 283 (1950). 

/18/  IF THE BROADCASTER PRESENTS ONE SIDE OF A QUESTION, AND DOES
NOT WISH TO PRESENT THE OTHER SIDE HIMSELF, HE CAN FULFILL HIS FAIRNESS
OBLIGATION BY ANNOUNCING HIS WILLINGNESS TO BROADCAST OPPOSING VIEWS BY
VOLUNTEERS.  SEE MID-FLORIDA TELEVISION CORP., 40 F.C.C. 620 (1964). 
IF THE BROADCASTER REJECTS A VOLUNTEER SPOKESMAN AS "INAPPROPRIATE," HE
MUST SEEK OUT OTHERS.  SEE RICHARD G. RUFF, 19 F.C.C. 2D 838 (1969). 
THE BROADCASTER MUST PROVIDE FREE TIME FOR THE PRESENTATION OF OPPOSING
VIEWS IF SPONSORSHIP IS UNAVAILABLE.  SEE CULLMAN BROADCASTING CO., 25
P & F RADIO REG. 895 (1963). 

/19/  APPLICABILITY OF THE FAIRNESS DOCTRINE IN THE HANDLING OF
CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE, SUPRA, N. 16, AT 10424. 

/20/  NOTICE IN INQUIRY:  THE HANDLING OF PUBLIC ISSUES UNDER THE
FAIRNESS DOCTRINE AND THE PUBLIC INTEREST STANDARDS OF THE
COMMUNICATIONS ACT, 30 F.C.C. 2D 26, 27 - 28 (1971); SEE ALSO
APPLICABILITY OF THE FAIRNESS DOCTRINE IN THE HANDLING OF CONTROVERSIAL
ISSUES OF PUBLIC IMPORTANCE, SUPRA, N. 16, AT 10416; REPORT IN THE
MATTER OF EDITORILIZING BY BROADCAST LICENSEES, SUPRA, N. 16. 

/21/  THUS, THE FAIRNESS DOCTRINE MUST BE SHARPLY DISTINGUISHED FROM
THE "EQUAL TIME" REQUIREMENT, WHICH PROVIDES THAT A BROADCASTER WHO
AFFORDS AIR TIME TO ONE POLITICAL CANDIDATE MUST MAKE EQUAL TIME
AVAILABLE TO OTHER CANDIDATES FOR THE SAME OFFICE.  47 U.S.C. ^ 315. 
SEE ALSO NICHOLAS ZAPPLE, 23 F.C.C. 2D 707 (1970) (EXTENSION OF "EQUAL
TIME" RULE TO COVER A CANDIDATE'S SUPPORTERS WHERE SPOKESMEN FOR OTHER
CANDIDATES ARE PERMITTED TO PURCHASE AIR TIME).  SIMILARLY, THE
FAIRNESS DOCTRINE MUST NOT BE CONFUSED WITH THE COMMISSION'S "PERSONAL
ATTACK" AND "POLITICAL EDITORIALIZING" RULES WHICH WERE UPHELD IN RED
LION BROADCASTING CO. V. FCC, 395 U.S. 367 (1969).  THE "PERSONAL
ATTACK" RULE PROVIDES THAT "(WHEN, DURING THE PRESENTATION OF VIEWS ON
A CONTROVERSIAL ISSUE OF PUBLIC IMPORTANCE, AN ATTACK IS MADE UPON THE
HONESTY, CHARACTER, INTEGRITY OR LIKE PERSONAL QUALITIES OF AN
IDENTIFIED PERSON," THE LICENSEE MUST NOTIFY THE PERSON ATTACKED AND
OFFER HIM AN OPPORTUNITY TO RESPOND.  47 CFR 73.123.  THE "POLITICAL
EDITORIALIZING" RULE PROVIDES THAT WHEN A LICENSEE ENDORSES A CANDIDATE
FOR POLITICAL OFFICE IT MUST GIVE OTHER CANDIDATES OR THEIR SPOKESMEN
AN OPPORTUNITY TO RESPOND.  SEE, E. G., 47 CFR ^ 73.123.  THUS, UNLIKE
THE FAIRNESS DOCTRINE, THE "EQUAL TIME," "PERSONAL ATTACK," AND
"POLITICAL EDITORIALIZING" RULES GRANT A PARTICULAR GROUP OR INDIVIDUAL
A LIMITED "RIGHT OF ACCESS" TO THE AIRWAYS NOT SUBJECT TO THE
"JOURNALISTIC SUPERVISION" OF THE BROADCASTER. 

/22/  ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 20 (1945). 

/23/  THE EDITORIAL RESPONSIBILITY OF THE BROADCASTER:  REFLECTIONS
ON FAIRNESS AND ACCESS, 85 HARV. L. REV. 768, 773 N. 26 (1972). 

/24/  SEE GENERALLY D. LACY, FREEDOM AND COMMUNICATIONS 69 (1961);
MALLAMUD, THE BROADCAST LICENSEE AS FIDUCIARY:  TOWARD THE ENFORCEMENT
OF DISCRETION, 1973 DUKE L. J. 89, 94 - 95, 98 - 99; JAFFE, SUPRA, N.
23, AT 773 N. 26; CANBY, THE FIRST AMENDMENT RIGHT TO PERSUADE:  ACCESS
TO RADIO AND TELEVISION, 19 U.C.L.A. L. REV. 723, 727 (1972); MALONE,
BROADCASTING, THE RELUCTANT DRAGON:  WILL THE FIRST AMENDMENT RIGHT OF
ACCESS END THE SUPRESSING OF CONTROVERSIAL IDEAS?, 5 U. MICH. J. L.
REFORM 193, 205 - 211, 216 (1972); JOHNSON & WESTEN, A TWENTIETH
CENTURY SOAPBOX:  THE RIGHT TO PURCHASE RADIO AND TELEVISION TIME, 57
VA. L. REV. 574 (1971); BARRON, ACCESS TO THE PRESS--A NEW FIRST
AMENDMENT RIGHT, 80 HARV. L. REV. 1641 (1967); NOTE, FREE SPEECH AND
THE MASS MEDIA, 57 VA. L. REV. 636 (1971); NOTE, A FAIR BREAK FOR
CONTROVERSIAL SPEAKERS:  LIMITATIONS OF THE FAIRNESS DOCTRINE AND THE
NEED FOR INDIVIDUAL ACCESS, 39 GEO. WASH. L. REV. 532 (1971); NOTE, THE
WASTELAND REVISITED:  A MODEST ATTACK UPON THE FCC'S CATEGORY SYSTEM,
17 U.C.L.A. L. REV. 868, 870 - 875 (1970); COMMENT, FREEDOM OF SPEECH
AND THE INDIVIDUAL'S RIGHT OF ACCESS TO THE AIRWAVES, 1970 LAW & SOCIAL
ORDER 424, 428; NOTE, THE FEDERAL COMMUNICATIONS COMMISSION'S FAIRNESS
REGULATIONS:  A FIRST STEP TOWARDS CREATION OF A RIGHT OF ACCESS TO THE
MASS MEDIA, 54 CORNELL L. REV. 294, 296 (1969). 

ALTHOUGH ADMITTING THAT THE FAIRNESS DOCTRINE "HAS NOT ALWAYS
BROUGHT TO THE PUBLIC PERFECT OR, INDEED, EVEN CONSISTENTLY HIGH
QUALITY TREATMENT OF ALL PUBLIC EVENTS AND ISSUES," THE COURT
NEVERTHELESS SUGGESTS THAT A BROADCASTER WHO FAILS TO FULFILL HIS
FAIRNESS OBLIGATIONS DOES SO "AT THE RISK OF LOSING HIS LICENSE." 
ANTE, AT 130 - 131.  THE COURT DOES NOT CITE A A SINGLE INSTANCE,
HOWEVER, IN WHICH THIS SANCTION HAS EVER BEEN INVOKED BECAUSE OF A
BROADCASTER'S FAILURE TO COMPLY WITH THE FAIRNESS DOCTRINE.  INDEED,
THIS IS NOT SURPRISING, FOR THE COMMISSION HAS ACTED WITH GREAT
RELUCTANCE IN THIS AREA, INTERVENING IN ONLY THE MOST EXTREME CASES OF
BROADCASTER ABUSE.  SEE MALLAMUD, SUPRA, AT 115 - 122; CANBY, SUPRA, AT
725 - 727; MALONE, SUPRA, AT 215 - 216; SEE ALSO COX & JOHNSON,
BROADCASTING IN AMERICA AND THE FCC'S LICENSE RENEWAL PROCESS:  AN
OKLAHOMA CASE STUDY, 14 F.C.C. 2D 1 (1968). 

/25/  RED LION BROADCASTING CO. V. FCC, SUPRA, AT 392 N. 18, QUOTING
J. MILL, ON LIBERTY 32 (R. MCCALLUM ED. 1947). 

/26/  DEMOCRATIC NATIONAL COMMITTEE, 25 F.C.C. 2D, AT 222. 

/27/  INDEED, THE FAILURE TO PROVIDE ADEQUATE MEANS FOR GROUPS AND
INDIVIDUALS TO BRING NEW ISSUES OR IDEAS TO THE ATTENTION OF THE PUBLIC
EXPLAINS, AT LEAST TO SOME EXTENT, "THE DEVELOPMENT OF NEW MEDIA TO
CONVEY UNORTHODOX, UNPOPULAR, AND NEW IDEAS.  SIT-INS AND
DEMONSTRATIONS TESTIFY TO . . . THE INABILITY TO SECURE ACCESS TO THE
CONVENTIONAL MEANS OF REACHING AND CHANGING PUBLIC OPINION.  (FOR BY)
THE BIZARRE AND UNSETTLING NATURE OF HIS TECHNIQUE, THE DEMONSTRATOR
HOPES TO ARREST AND DIVERT ATTENTION LONG ENOUGH TO COMPEL THE PUBLIC
TO PONDER HIS MESSAGE."  BARRON, 80 HARV. L. REV., AT 1647; CF.
ADDERLEY V. FLORIDA, 385 U.S. 39, 50 - 51 (1966) (DOUGLAS, J.,
DISSENTING). 

/28/  BRIEF FOR AMERICAN BROADCASTING COMPANIES, INC. 52. 

/29/  BRIEF FOR COLUMBIA BROADCASTING SYSTEM, INC. 34. 

/30/  ID., AT 40. 

/31/  BRIEF FOR NATIONAL BROADCASTING COMPANY, INC. 10. 

/32/  BRIEF FOR POST-NEWSWEEK STATIONS, CAPITAL AREA, INC. 31. 

/33/  TINKER V. DES MOINES INDEPENDENT SCHOOL DISTRICT, 393 U.S.
503, 512 (1969). 

/34/  UNITED STATES V. ASSOCIATED PRESS, 52 F. SUPP. 362, 372 (SDNY
1943), AFF'D, 326 U.S. 1 (1945).  SEE ALSO THOMAS V. COLLINS, 323 U.S.
516, 545 (1945) (JACKSON, J., CONCURRING). 

/35/  THE COURT DOES MAKE THE RATHER NOVEL SUGGESTION, HOWEVER, THAT
EDITORIAL ADVERTISING MIGHT INDEED BE "INAPPROPRIATE" BECAUSE
"LISTENERS AND VIEWERS CONSTITUTE A 'CAPTIVE AUDIENCE.'"  ANTE, AT
127.  IN SUPPORT OF THIS PROPOSITION, THE COURT CITES OUR DECISIONS IN
PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451 (1952), AND KOVACS V.
COOPER, 336 U.S. 77 (1949).  IN POLLAK, HOWEVER, WE EXPLICITLY REJECTED
A CLAIM THAT THE BROADCASTING OF RADIO PROGRAMS IN STREETCARS VIOLATED
THE FIRST AND FIFTH AMENDMENT RIGHTS OF PASSENGERS WHO DID NOT WISH TO
LISTEN TO THOSE PROGRAMS.  AND IN KOVACS, ALTHOUGH WE HPHELD AN
ORDINANCE FORBIDDING THE USE ON PUBLIC STREETS OF SOUND TRUCKS WHICH
EMIT "LOUD AND RAUCOUS NOISES," WE DID SO BECAUSE THE ORDINANCE WAS
CONCERNED, NOT WITH THE CONTENT OF SPEECH, BUT, RATHER, WITH THE
OFFENSIVENESS OF THE SOUNDS THEMSELVES.  HERE, HOWEVER, THE COURT SEEMS
PERFECTLY WILLING TO ALLOW BROADCASTERS TO CONTINUE TO INVATE THE
"PRIVACY" OF THE HOME THROUGH COMMERCIAL ADVERTISING AND EVEN
CONTROVERSIAL PROGRAMMING UNDER THE FAIRNESS DOCTRINE.  THUS, THE COURT
DRAWS ITS LINE SOLELY ON THE BASIS OF THE CONTENT OF THE PARTICULAR
SPEECH INVOLVED AND, OF COURSE, WE HAVE CONSISTENTLY HELD THAT, WHERE
CONTENT IS AT ISSUE, CONSTITUTIONALLY PROTECTED SPEECH MAY NOT BE
PROHIBITED BECAUSE OF A "MERE DESIRE TO AVOID THE DISCOMFORT AND
UNPLEASANTNESS THAT ALWAYS ACCOMPANY AN UNPOPULAR VIEWPOINT."  TINKER
V. DES MOINES INDEPENDENT SCHOOL DISTRICT, 393 U.S., AT 509; SEE, E.
G., GRAYNED V. CITY OF ROCKFORD, 408 U.S. 104, 117 (1972).  THE
SUGGESTION THAT CONSTITUTIONALLY PROTECTED SPEECH MAY BE BANNED BECAUSE
SOME PERSONS MAY FIND THE IDEAS EXPRESSED OFFENSIVE IS, IN ITSELF,
OFFENSIVE TO THE VERY MEANING OF THE FIRST AMENDMENT. 

/36/  INDEED, APPROXIMATELY 95% OF AMERICAN HOMES CONTAIN AT LEAST
ONE TELEVISION SET, AND THAT SET IS TURNED ON FOR AN AVERAGE OF MORE
THAN GIVE AND ONE-HALF HOURS PER DAY.  SEE HEARINGS ON H. R. 13721
BEFORE THE SUBCOMMITTEE ON COMMUNICATIONS AND POWER OF THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 91ST CONG., 2D SESS., 7
(1970) (STATEMENT OF DEAN BURCH, CHAIRMAN OF THE FEDERAL COMMUNICATIONS
COMMISSION).  AS TO THE POTENTIAL INFLUENCE OF THE ELECTRONIC MEDIA ON
AMERICAN THOUGHT, SEE GENERALLY A. KROCK, THE CONSENT OF THE GOVERNED
66 (1971); H. MENDELSOHN & I. CRESPI, POLLS, TELEVISION, AND THE NEW
POLITICS 256, 264 (1970); MALONE, 5 U. MICH. J. L. REFORM, AT 197. 

/37/  H. R. REP. NO. 91 - 257, P. 6 (1969).  ACCORDING TO ONE STUDY,
67% OF AMERICANS PREFER THE ELECTRONIC MEDIA TO OTHER SOURCES OF
INFORMATION.  SEE G. WYCKOFF, THE IMAGE CANDIDATES 13 - 14 (1968).  SEE
ALSO AMENDMENT OF SECTIONS 73.35, 73.240, AND 73.636 OF THE
COMMISSION'S RULES, 22 F.C.C. 2D 339, 344 (1970) (59% OF AMERICANS
DEPEND ON TELEVISION AS THEIR PRINCIPAL SOURCE OF NEWS). 

/38/  IT SHOULD BE NOTED THAT, ALTHOUGH THE FAIRNESS DOCTRINE IS AT
LEAST ARGUABLY RELEVANT TO THE PUBLIC'S INTEREST IN RECEIVING SUITABLE
EXPOSURE TO "UNINHIBITED, ROBUST, AND WIDE-OPEN" DEBATE ON
CONTROVERSIAL ISSUES, IT IS NOT IN ANY SENSE RELEVANT TO THE
INDIVIDUAL'S INTEREST IN OBTAINING ACCESS TO THE AIRWAVES FOR THE
PURPOSE OF EFFECTIVE SELF-EXPRESSION.  FOR THE INDIVIDUAL'S INTEREST IN
EXPRESSING HIS OWN VIEWS IN A MANNER OF HIS OWN CHOOSING IS AN
INHERENTLY PERSONAL ONE, AND IT CAN NEVER BE SATISFIED BY THE
EXPRESSION OF "SIMILAR" VIEWS BY A SURROGATE SPOKESMAN. 

/39/ INDEED, PRE-1927 REGULATION OF RADIO GAVE NO DISCRETION TO THE
FEDERAL GOVERNMENT TO DENY THE RIGHT TO OPERATE A BROADCAST STATION. 
SEE 1 A. SOCOLOW, THE LAW OF RADIO BROADCASTING 38 (1939); H. WARNER,
RADIO & TELEVISION LAW 757 ET SEQ. (1948); SEE GENERALLY NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 210 - 214 (1943). 

/40/  67 CONG. REC. 5479 (REP. WHITE). 

/41/  THESE INCLUDE, OF COURSE, NOT ONLY PUBLIC BROADCASTING, BUT
ALSO "AMATEUR OPERATION, AIRCRAFT, POLICE, DEFENSE, AND NAVIGATION . .
. ."  RED LION BROADCASTING CO. V. FCC, 395 U.S., AT 388. 

/42/  ALTHOUGH THIS LICENSING SCHEME NECESSARILY RESTRICTS THE FIRST
AMENDMENT RIGHTS OF THOSE GROUPS OR INDIVIDUALS WHO ARE DENIED THE
"RIGHT" TO OPERATE A BROADCAST STATION, IT DOES NOT, IN AND OF ITSELF,
VIOLATE THE FIRST AMENDMENT.  FOR IT HAS LONG BEEN RECOGNIZED THAT WHEN
"(CONFLICTING DEMANDS ON THE SAME (FORUM) . . . COMPEL THE (GOVERNMENT)
TO MAKE CHOICES AMONG POTENTIAL USERS AND USES," NEUTRAL RULES OF
ALLOCATION TO GOVERN THAT SCARCE COMMUNICATIONS RESOURCE ARE NOT PER SE
UNCONSTITUTIONAL.  POLICE DEPT. OF CHICAGO V. MOSLEY, 408 U.S. 92, 98
(1972); CF. COX V. LOUISIANA, 379 U.S. 536, 554 (1965); COX V. NEW
HAMPSHIRE, 312 U.S. 569, 574 (1941); SCHNEIDER V. STATE, 308 U.S. 147,
160 (1939).  AND, IN THE CONTEXT OF BROADCASTING, IT WOULD BE IRONIC
INDEED "IF THE FIRST AMENDMENT, AIMED AT PROTECTING AND FURTHERING
COMMUNICATIONS, PREVENTED THE GOVERNMENT FROM MAKING RADIO
COMMUNICATION POSSIBLE . . . BY LIMITING THE NUMBER OF LICENSES SO AS
NOT TO OVERCROWD THE SPECTRUM."  RED LION BROADCASTING CO. V. FCC,
SUPRA, AT 389. 

/43/  ID., AT 388. 

/44/  SEE, D. G., 47 U.S.C. ^ 326. 

/45/  THUS, AS THE COURT OF APPEALS RECOGNIZED, "(IN NORMAL
PROGRAMMING TIME, CLOSELY CONTROLLED AND EDITED BY BROADCASTERS, THE
CONSTELLATION OF CONSTITUTIONAL INTERESTS WOULD BE SUBSTANTIALLY
DIFFERENT."  146 U.S. APP. D.C., AT 193, 450 F. 2D, AT 654. 

/46/  SEE, E. G., POLICE DEPT. OF CHICAGO V. MOSLEY, SUPRA, AT 98;
GRAYNED V. CITY OF ROCKFORD, 408 U.S., AT 115; COX V. LOUISIANA, 379
U.S., AT 554; POULOS V. NEW HAMPSHIRE, 345 U.S. 395, 398 (1953); COX V.
NEW HAMPSHIRE, 312 U.S., AT 575 - 576; SCHNEIDER V. STATE, 308 U.S., AT
160. 

/47/  CONTRARY TO THE COURT'S ASSERTION, THE EXISTENCE OF THE
FAIRNESS DOCTRINE CANNOT IN ANY SENSE RATIONALIZE THIS DISCRIMINATION. 
INDEED, THE FAIRNESS DOCTRINE IS WHOLLY UNRESPONSIVE TO THE NEED FOR
INDIVIDUAL ACCESS TO THE AIRWAVES FOR THE PURPOSE OF EFFECTIVE SELF
EXPRESSION.  SEE ALSO N. 38, SUPRA. 

/48/  THE COURT OF APPEALS DID, HOWEVER, SUGGEST CERTAIN POSSIBLE
CONTOURS OF IMPLEMENTATION.  FOR EXAMPLE, THE COURT NOTED THAT
BROADCASTERS DHOULD BE PERMITTED "TO PLACE AN OUTSIDE LIMIT ON THE
TOTAL AMOUNT OF EDITORIAL ADVERTISING THEY WILL SELL," AND "'REASONABLE
REGULATION' OF THE PLACEMENT OF ADVERTISEMENTS IS ALTOGETHER PROPER." 
146 U.S. APP. D.C., AT 202, 450 F. 2D, AT 663. 

/49/  ID., AT 204 - 205, 450 F. 2D, AT 665 - 666. 

J. ROGER WOLLENBERG ARGUED THE CAUSE FOR PETITIONER IN NO. 71 -
863.  WITH HIM ON THE BRIEFS WERE LLOYD N. CUTLER, TIMOTHY B. DYK,
DANIEL MARCUS, ROBERT V. EVANS, JOHN D. APPEL, AND JOSEPH DEFRANCO. 
SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR PETITIONERS IN NO. 71 -
864.  WITH HIM ON THE BRIEF WERE ACTING ASSISTANT ATTORNEY GENERAL
COMEGYS, HOWARD E. SHAPIRO, AND JOHN W. PETTIT.  ERNEST W. JENNES
ARGUED THE CAUSE FOR PETITIONER IN NO. 71 - 865.  WITH HIM ON THE
BRIEFS WERE CHARLES A. MILLER AND MICHAEL BOUDIN.  VERNON L. WILKINSON
ARGUED THE CAUSE FOR PETITIONER IN NO. 71 - 866.  WITH HIM ON THE BRIEF
WERE JAMES A. MCKENNA, JR., AND CARL R. RAMEY. 

JOSEPH A. CALIFANO, JR., ARGUED THE CAUSE FOR RESPONDENT DEMOCRATIC
NATIONAL COMMITTEE IN NOS. 71 - 863, 71 - 864, AND 71 - 866.  WITH HIM
ON THE BRIEF WAS JOHN G. KESTER.  THOMAS R. ASHER ARGUED THE CAUSE FOR
RESPONDENT BUSINESS EXECUTIVES' MOVE FOR VIETNAM PEACE IN NOS. 71 -
864 

FLOYD ABRAMS AND CORYDON B. DUNHAM FILED A BRIEF FOR NATIONAL
BROADCASTING CO., INC., AS AMICUS CURIAE URGING REVERSAL. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :























KEEBLE V. UNITED STATES 412 U.S. 205 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT 

     NO. 72 - 5323.  ARGUED MARCH 27, 1973--DECIDED MAY 29, 1973;
459

  F. 2D 757 AND 762, REVERSED AND REMANDED. 


    PETITIONER, AN INDIAN, WAS CONVICTED OF ASSAULT WITH INTENT TO

  COMMIT SERIOUS BODILY INJURY ON AN INDIAN RESERVATION, A FEDERAL

  CRIME UNDER THE MAJOR CRIMES ACT OF 1885, AFTER THE COURT REFUSED

  TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF SIMPLE

  ASSAULT.  THE COURT OF APPEALS AFFIRMED ON THE GROUND THAT SINCE

  SIMPLE ASSAULT IF NOT ONE OF THE OFFENSES ENUMERATED IN THE ACT,

  IT WOULD BE EXCLUSIVELY "A MATTER FOR THE TRIBE."  HELD:  AN

INDIAN PROSECUTED IN FEDERAL COURT UNDER THE ACT IS ENTITLED TO A

  JURY INSTRUCTION ON LESSER INCLUDED OFFENSES, IF THE FACTS

  WARRANT.  SUCH AN INSTRUCTION WOULD NOT EXPAND THE REACH OF THE

  ACT OR PERMIT THE GOVERNMENT TO INFRINGE THE RESIDUAL

  JURISDICTION OF THE INDIAN TRIBES BY BRINGING IN FEDERAL COURT

  PROSECUTIONS NOT AUTHORIZED BY STATUTE.  PP. 207 - 214. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  STEWART,
J., FILED A DISSENTING OPINION, IN WHICH POWELL AND REHNQUIST, JJ.,
JOINED, POST, P. 215. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE MAJOR CRIMES ACT OF 1885 /1/  AUTHORIZES THE PROSECUTION IN
FEDERAL COURT OF AN INDIAN CHARGED WITH THE COMMISSION ON AN INDIAN
RESERVATION OF CERTAIN SPECIFICALLY ENUMERATED OFFENSES.  /2/  THIS
CASE REQUIRES US TO DECIDE WHETHER AN INDIAN PROSECUTED UNDER THE ACT
IS ENTITLED TO A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE WHERE
THAT LESSER OFFENSE IS NOT ONE OF THE CRIMES ENUMERATED IN THE ACT. 

AT THE CLOSE OF PETITIONER'S TRIAL FOR ASSAULT WITH INTENT TO COMMIT
SERIOUS BODILY INJURY, THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF SOUTH DAKOTA REFUSED TO INSTRUCT THE JURY, AS PETITIONER
REQUESTED, THAT THEY MIGHT CONVICT HIM OF SIMPLE ASSAULT.  THE COURT
REASONED THAT SINCE SIMPLE ASSAULT IS NOT AN OFFENSE ENUMERATED IN THE
ACT, IT IS EXCLUSIVELY "A MATTER FOR THE TRIBE."  APP. 15.  A PANEL OF
THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, ONE JUDGE
DISSENTING, UPHELD THAT DETERMINATION ON THE STRENGTH OF THE COURT'S
EARLIER DECISION IN KILLS CROW V. UNITED STATES, 451 F. 2D 323 (CA8
1971).  459 F. 2D 757 (1972).  FOLLOWING A REMAND TO THE DISTRICT COURT
FOR A HEARING ON AN UNRELATED ISSUE, /3/  THE CASE RETURNED TO THE
COURT OF APPEALS AND THE CONVICTION WAS AFFIRMED.  ID., AT 762
(SUPPLEMENTAL OPINION).  WE GRANTED CERTIORARI LIMITED TO THE QUESTION
OF THE VALIDITY OF DENYING THE REQUESTED INSTRUCTION, /4/  409 U.S.
1037 (1972), AND WE REVERSE. 

THE EVENTS THAT LED TO THE DEATH OF PETITIONER'S BROTHER-IN-LAW,
ROBERT POMANI, AND HENCE TO THIS CRIMINAL PROSECUTION, TOOK PLACE ON
THE SOUTH DAKOTA RESERVATION OF THE CROW CREEK SIOUX TRIBE.  PETITIONER
AND THE DECEASED, BOTH INDIANS OF THAT TRIBE, SPENT THE EVENING OF
MARCH 6, 1971, DRINKING AND QUARRELING OVER PETITIONER'S ALLEGED
MISTREATMENT OF HIS WIFE, POMANI'S SISTER.  THE ARGUMENT SOON BECAME
VIOLENT, AND IT ENDED ONLY WHEN PETITIONER, HAVING BEATEN POMANI
SEVERELY AND LEFT HIM BLEEDING FROM THE HEAD AND FACE, WENT TO BED. 
THE NEXT MORNING HE DISCOVERED POMANI'S LIFELESS BODY ON THE GROUND A
SHORT DISTANCE FROM THE HOUSE WHERE THE BEATING HAD OCCURRED.  HE
REPORTED THE DEATH TO AN OFFICIAL OF THE DEPARTMENT OF THE INTERIOR
SERVING AS CAPTAIN OF THE TRIBAL POLICE AT FORT THOMPSON, SOUTH
DAKOTA.  AN AUTOPSY REVEALED THAT POMANI DIED BECAUSE OF EXPOSURE TO
EXCESSIVE COLD, ALTHOUGH THE BEATING WAS A CONTRIBUTING FACTOR. 
PETITIONER WAS CONVICTED OF ASSAULT WITH INTENT TO INFLICT GREAT BODILY
INJURY, AND SENTENCED TO FIVE YEARS' IMPRISONMENT. 

ALTHOUGH THE LESSER INCLUDED OFFENSE DOCTRINE DEVELOPED AT COMMON
LAW TO ASSIST THE PROSECUTION IN CASES WHERE THE EVIDENCE FAILED TO
ESTABLISH SOME ELEMENT OF THE OFFENSE ORIGINALLY CHARGED, /5/  IT IS
NOW BEYOND DISPUTE THAT THE DEFENDANT IS ENTITLED TO AN INSTRUCTION ON
A LESSER INCLUDED OFFENSE IF THE EVIDENCE WOULD PERMIT A JURY
RATIONALLY TO FIND HIM GUILTY OF THE LESSER OFFENSE AND ACQUIT HIM OF
THE GREATER.  THE FEDERAL RULES OF CRIMINAL PROCEDURE EXPRESSLY SO
PROVIDE, SEE RULE 31 (C), /6/  AND THE DEFENDANT'S RIGHT TO SUCH AN
INSTRUCTION HAS BEEN RECOGNIZED IN NUMEROUS DECISIONS OF THIS COURT. 
SEE SANSONE V. UNITED STATES, 380 U.S. 343, 349 (1965); BERRA V. UNITED
STATES, 351 U.S. 131, 134 (1956); STEVENSON V. UNITED STATES, 162 U.S.
313 (1896).  /7/ 

IN DEFENDING THE TRIAL COURT'S REFUSAL TO OFFER THE REQUESTED
INSTRUCTION, THE GOVERNMENT DOES NOT DISPUTE THIS GENERAL PROPOSITION,
NOR DOES IT ARGUE THAT A LESSER OFFENSE INSTRUCTION WAS INCOMPATIBLE
WITH THE EVIDENCE PRESENTED AT TRIAL.  CF. SANSONE V. UNITED STATES,
SUPRA; SPARF V. UNITED STATES, 156 U.S. 51, 63 - 64 (1895).  ON THE
CONTRARY, THE GOVERNMENT EXPLICITLY CONCEDES THAT ANY NON-INDIAN WHO
HAD COMMITTED THIS SAME ACT ON THE SAME RESERVATION AND REQUESTED THIS
SAME INSTRUCTION WOULD HAVE BEEN ENTITLED TO THE JURY CHARGE THAT
PETITIONER WAS REFUSED.  BRIEF FOR THE UNITED STATES 13 N. 16.  /8/
THE GOVERNMENT DOES MAINTAIN, HOWEVER, THAT THE MAJOR CRIMES ACT
PRECLUDES THE DISTRICT COURT FROM OFFERING A LESSER OFFENSE INSTRUCTION
ON BEHALF OF AN INDIAN, SUCH AS THE PETITIONER BEFORE US.
SPECIFICALLY, THE GOVERNMENT CONTENDS THAT THE ACT REPRESENTS A
CAREFULLY LIMITED INTRUSION OF FEDERAL POWER INTO THE OTHERWISE
EXCLUSIVE JURISDICTION OF THE INDIAN TRIBES TO PUNISH INDIANS FOR
CRIMES COMMITTED ON INDIAN LAND.  TO GRANT AN INSTRUCTION ON THE LESSER
OFFENSE OF SIMPLE ASSAULT WOULD, IN THE GOVERNMENT'S VIEW, INFRINGE THE
TRIBE'S RESIDUAL JURISDICTION IN A MANNER INCONSISTENT WITH THE ACT. 
UNDER THE GOVERNMENT'S APPROACH, IN OTHER WORDS, THE INTERESTS OF AN
INDIVIDUAL INDIAN DEFENDANT IN OBTAINING A JURY INSTRUCTION ON A LESSER
OFFENSE MUST FALL BEFORE THE CONGRESSIONALLY SANCTIONED INTERESTS OF
THE TRIBE IN PRESERVING ITS INHERENT JURISDICTION.  SINCE THAT
CONCLUSION IS COMPELLED NEITHER BY THE LANGUAGE, NOR THE PURPOSES, NOR
THE HISTORY OF THE ACT, WE CANNOT AGREE. 

THE MAJOR CRIMES ACT WAS PASSED BY CONGRESS IN DIRECT RESPONSE TO
THE DECISION OF THIS COURT IN EX PARTE CROW DOG, 109 U.S. 556 (1883). 
THE COURT HELD THERE THAT A FEDERAL COURT LACKED JURISDICTION TO TRY AN
INDIAN FOR THE MURDER OF ANOTHER INDIAN, A CHIEF OF THE BRULE SIOUX
NAMED SPOTTED TAIL, IN INDIAN COUNTRY.  ALTHOUGH RECOGNIZING THE POWER
OF CONGRESS TO CONFER SUCH JURISDICTION ON THE FEDERAL COURTS, /9/  THE
COURT REASONED THAT, IN THE ABSENCE OF EXPLICIT CONGRESSIONAL
DIRECTION, THE INDIAN TRIBE RETAINED EXCLUSIVE JURISDICTION TO PUNISH
THE OFFENSE.  CF. TALTON V. MAYES, 163 U.S. 376 (1896); WORCESTER V.
GEORGIA, 6 PET. 515 (1832). 

THE PROMPT CONGRESSIONAL RESPONSE--CONFERRING JURISDICTION ON THE
FEDERAL COURTS TO PUNISH CERTAIN OFFENSES--REFLECTED A VIEW THAT TRIBAL
REMEDIES WERE EITHER NONEXISTENT OR INCOMPATIBLE WITH PRINCIPLES THAT
CONGRESS THOUGHT SHOULD BE CONTROLLING.  REPRESENTATIVE CUTCHEON,
SPONSOR OF THE ACT, DESCRIBED THE EVENTS THAT FOLLOWED THE REVERSAL BY
THIS COURT OF CROW DOG'S CONVICTION: 

"THUS CROW DOG WENT FREE.  HE RETURNED TO HIS RESERVATION, FEELING,
AS THE COMMISSIONER SAYS, A GREAT DEAL MORE IMPORTANT THAN ANY OF THE
CHIEFS OF HIS TRIBE.  THE RESULT WAS THAT ANOTHER MURDER GREW OUT OF
THAT--A MURDER COMMITTED BY SPOTTED TAIL, JR., UPON WHITE THUNDER.  AND
SO THESE THINGS MUST GO ON UNLESS WE ADOPT PROPER LEGISLATION ON THE
SUBJECT. 

     "IT IS AN INFAMY UPON OUR CIVILIZATION, A DISGRACE TO THIS

  NATION, THAT THERE SHOULD BE ANYWHERE WITHIN ITS BOUNDARIES A

  BODY OF PEOPLE WHO CAN, WITH ABSOLUTE IMPUNITY, COMMIT THE CRIME

  OF MURDER, THERE BEING NO TRIBUNAL BEFORE WHICH THEY CAN BE

  BROUGHT FOR PUNISHMENT.  UNDER OUR PRESENT LAW THERE IS NO

  PENALTY THAT CAN BE INFLICTED EXCEPT ACCORDING TO THE CUSTOM OF

 THE TRIBE, WHICH IS SIMPLY THAT THE 'BLOOD-AVENGER'--THAT IS, THE

  NEXT OF KIN TO THE PERSON MURDERED--SHALL PURSUE THE ONE WHO HAS

  BEEN GUILTY OF THE CRIME AND COMMIT A NEW MURDER UPON HIM.  . .
. 

     "IF . . . AN INDIAN COMMITS A CRIME AGAINST AN INDIAN ON AN

  INDIAN RESERVATION THERE IS NOW NO LAW TO PUNISH THE OFFENSE

  EXCEPT, AS I HAVE SAID, THE LAW OF THE TRIBE, WHICH IS JUST NO

  LAW AT ALL."  16 CONG. REC. 934 (1885).  /10/

THE SECRETARY OF THE INTERIOR, WHO SUPPORTED THE ACT, STRUCK A SIMILAR
NOTE: 

"IF OFFENSES OF THIS CHARACTER (THE KILLING OF SPOTTED TAIL) CAN NOT
BE TRIED IN THE COURTS OF THE UNITED STATES, THERE IS NO TRIBUNAL IN
WHICH THE CRIME OF MURDER CAN BE PUNISHED.  MINOR OFFENSES MAY BE
PUNISHED THROUGH THE AGENCY OF THE 'COURT OF INDIAN OFFENSES,' BUT IT
WILL HARDLY DO TO LEAVE THE PUNISHMENT OF THE CRIME OF MURDER TO A
TRIBUNAL THAT EXISTS ONLY BY THE CONSENT OF THE INDIANS OF THE
RESERVATION.  IF THE MURDERER IS LEFT TO BE PUNISHED ACCORDING TO THE
OLD INDIAN CUSTOM, IT BECOMES THE DUTY OF THE NEXT OF KIN TO AVENGE THE
DEATH OF HIS RELATIVE BY EITHER KILLING THE MURDERER OR SOME ONE OF HIS
KINSMEN . . . ."  /11/ 

IN SHORT, CONGRESS EXTENDED FEDERAL JURISDICTION TO CRIMES COMMITTED
BY INDIANS ON INDIAN LAND OUT OF A CONVICTION THAT MANY INDIANS WOULD
"BE CIVILIZED A GREAT DEAL SOONER BY BEING PUT UNDER (FEDERAL CRIMINAL)
LAWS AND TAUGHT TO REGARD LIFE AND THE PERSONAL PROPERTY OF OTHERS." 
16 CONG. REC. 936 (1885) (REMARKS OF REP. CUTCHEON).  THAT IS
EMPHATICALLY NOT TO SAY, HOWEVER, THAT CONGRESS INTENDED TO DEPRIVE
INDIAN DEFENDANTS OF PROCEDURAL RIGHTS GUARANTEED TO OTHER DEFENDANTS,
OR TO MAKE IT EASIER TO CONVICT AN INDIAN THAN ANY OTHER DEFENDANT. 
INDEED, THE ACT EXPRESSLY PROVIDES THAT INDIANS CHARGED UNDER ITS
PROVISIONS "SHALL BE TRIED IN THE SAME COURTS, AND IN THE SAME MANNER,
AS ARE ALL OTHER PERSONS COMMITTING ANY OF THE ABOVE CRIMES WITHIN THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES."  18 U.S.C. 3242.  /12/
IN THE FACE OF THAT EXPLICIT STATUTORY DIRECTION, WE CAN HARDLY
CONCLUDE THAT CONGRESS INTENDED TO DISQUALIFY INDIANS FROM THE BENEFITS
OF A LESSER OFFENSE INSTRUCTION, WHEN THOSE BENEFITS ARE MADE AVAILABLE
TO ANY NON-INDIAN CHARGED WITH THE SAME OFFENSE. 

MOREOVER, IT IS NO ANSWER TO PETITIONER'S DEMAND FOR A JURY
INSTRUCTION ON A LESSER OFFENSE TO ARGUE THAT A DEFENDANT MAY BE BETTER
OFF WITHOUT SUCH AN INSTRUCTION.  TRUE, IF THE PROSECUTION HAS NOT
ESTABLISHED BEYOND A REASONABLE DOUBT EVERY ELEMENT OF THE OFFENSE
CHARGED, AND IF NO LESSER OFFENSE INSTRUCTION IS OFFERED, THE JURY
MUST, AS A THEORETICAL MATTER, RETURN A VERDICT OF ACQUITTAL.  BUT A
DEFENDANT IS ENTITLED TO A LESSER OFFENSE INSTRUCTION--IN THIS CONTEXT
OR ANY OTHER--PRECISELY BECAUSE HE SHOULD NOT BE EXPOSED TO THE
SUBSTANTIAL RISK THAT THE JURY'S PRACTICE WILL DIVERGE FROM THEORY. 
WHERE ONE OF THE ELEMENTS OF THE OFFENSE CHARGED REMAINS IN DOUBT, BUT
THE DEFENDANT IS PLAINLY GUILTY OF SOME OFFENSE, THE JURY IS LIKELY TO
RESOLVE ITS DOUBTS IN FAVOR OF CONVICTION.  IN THE CASE BEFORE US, FOR
EXAMPLE, AN INTENT TO COMMIT SERIOUS BODILY INJURY IS A NECESSARY
ELEMENT OF THE CRIME WITH WHICH PETITIONER WAS CHARGED, BUT NOT OF THE
CRIME OF SIMPLE ASSAULT.  SINCE THE NATURE OF PETITIONER'S INTENT WAS
VERY MUCH IN DISPUTE AT TRIAL, THE JURY COULD RATIONALLY HAVE CONVICTED
HIM OF SIMPLE ASSAULT IF THAT OPTION HAD BEEN PRESENTED.  BUT THE JURY
WAS PRESENTED WITH ONLY TWO OPTIONS:  CONVICTING THE DEFENDANT OF
ASSAULT WITH INTENT TO COMMIT GREAT BODILY INJURY, OR ACQUITTING HIM
OUTRIGHT.  WE CANNOT SAY THAT THE AVAILABILITY OF A THIRD OPTION-
CONVICTING THE DEFENDANT OF SIMPLE ASSAULT--COULD NOT HAVE RESULTED IN
A DIFFERENT VERDICT.  INDEED, WHILE WE HAVE NEVER EXPLICITLY HELD THAT
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT GUARANTEES THE RIGHT OF A
DEFENDANT TO HAVE THE JURY INSTRUCTED ON A LESSER INCLUDED OFFENSE, IT
IS NEVERTHELESS CLEAR THAT A CONSTRUCTION OF THE MAJOR CRIMES ACT TO
PRECLUDE SUCH AN INSTRUCTION WOULD RAISE DIFFICULT CONSTITUTIONAL
QUESTIONS.  IN VIEW OF OUR INTERPRETATION OF THE ACT, THOSE ARE
QUESTIONS THAT WE NEED NOT FACE.  /13/ 

FINALLY, WE EMPHASIZE THAT OUR DECISION TODAY NEITHER EXPANDS THE
REACH OF THE MAJOR CRIMES ACT NOR PERMITS THE GOVERNMENT TO INFRINGE
THE RESIDUAL JURISDICTION OF A TRIBE BY BRINGING PROSECUTIONS IN
FEDERAL COURT THAT ARE NOT AUTHORIZED BY STATUTE.  /14/  WE HOLD ONLY
THAT WHERE AN INDIAN IS PROSECUTED IN FEDERAL COURT UNDER THE
PROVISIONS OF THE ACT, THE ACT DOES NOT REQUIRE THAT HE BE DEPRIVED OF
THE PROTECTION AFFORDED BY AN INSTRUCTION ON A LESSER INCLUDED OFFENSE,
ASSUMING OF COURSE THAT THE EVIDENCE WARRANTS SUCH AN INSTRUCTION.  NO
INTEREST OF A TRIBE IS JEOPARDIZED BY THIS DECISION.  ACCORDINGLY, THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  ACT OF MAR. 3, 1885, C. 341, ^ 9, 23 STAT. 385, NOW 18 U.S.C.
^^ 1153, 3242. 

/2/  AS ORIGINALLY ENACTED, THE STATUTE PROVIDED: 

"THAT IMMEDIATELY UPON AND AFTER THE DATE OF PASSAGE OF THIS ACT ALL
INDIANS, COMMITTING AGAINST THE PERSON OR PROPERTY OF ANOTHER INDIAN OR
OTHER PERSON ANY OF THE FOLLOWING CRIMES, NAMELY, MURDER, MANSLAUGHTER,
RAPE, ASSAULT WITH INTENT TO KILL, ARSON, BURGLARY, AND LARCENY WITHIN
ANY TERRITORY OF THE UNITED STATES, AND EITHER WITHIN OR WITHOUT AN
INDIAN RESERVATION, SHALL BE SUBJECT THEREFOR TO THE LAWS OF SUCH
TERRITORY RELATING TO SAID CRIMES, AND SHALL BE TRIED THEREFOR IN THE
SAME COURTS AND IN THE SAME MANNER AND SHALL BE SUBJECT TO THE SAME
PENALTIES AS ARE ALL OTHER PERSONS CHARGED WITH THE COMMISSION OF SAID
CRIMES, RESPECTIVELY; AND THE SAID COURTS ARE HEREBY GIVEN JURISDICTION
IN ALL SUCH CASES; AND ALL SUCH INDIANS COMMITTING ANY OF THE ABOVE
CRIMES AGAINST THE PERSON OR PROPERTY OF ANOTHER INDIAN OR OTHER PERSON
WITHIN THE BOUNDARIES OF ANY STATE OF THE UNITED STATES, AND WITHIN THE
LIMITS OF ANY INDIAN RESERVATION, SHALL BE SUBJECT TO THE SAME LAWS,
TRIED IN THE SAME COURTS AND IN THE SAME MANNER, AND SUBJECT TO THE
SAME PENALTIES AS ARE ALL OTHER PERSONS COMMITTING ANY OF THE ABOVE
CRIMES WITHIN THE EXCLUSIVE JURISDICTION OF THE UNITED STATES."  23
STAT. 385.  BY SUCCESSIVE AMENDMENTS, CONGRESS HAS INCREASED THE NUMBER
OF ENUMERATED CRIMES FROM SEVEN TO 13, ADDING CARNAL KNOWLEDGE, ASSAULT
WITH INTENT TO COMMIT RAPE, INCEST, ASSAULT WITH A DANGEROUS WEAPON,
ASSAULT RESULTING IN SERIOUS BODILY INJURY, AND ROBBERY.     /3/  THE
CASE WAS REMANDED TO THE DISTRICT COURT FOR A HEARING ON THE
VOLUNTARINESS OF PETITIONER'S CONFESSION, IN LIGHT OF THE REQUIREMENTS
OF 18 U.S.C. ^ 3501.  ON REMAND, THE DISTRICT COURT CONCLUDED THAT THE
CONFESSION WAS VOLUNTARY, NOTWITHSTANDING A LAPSE OF TIME BETWEEN
PETITIONER'S ARREST AND HIS CONFESSION. 

/4/  THE PETITION FOR CERTIORARI ALSO ASKED US TO CONSIDER THE
VALIDITY OF ADMITTING PETITIONER'S CONFESSION IN VIEW OF THE
REQUIREMENTS OF FED. RULE CRIM. PROC. 5 (A). 

/5/  SEE KELLY V. UNITED STATES, 125 U.S. APP. D.C. 205, 207, 370 F.
2D 227, 229 (1966); UNITED STATES V. MARKIS, 352 F. 2D 860, 866 (CA2
1965); 2 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE--CRIMINAL ^ 515, P.
372 (1969). 

/6/  RULE 31 (C) PROVIDES THAT "(THE DEFENDANT MAY BE FOUND GUILTY
OF AN OFFENSE NECESSARILY INCLUDED IN THE OFFENSE CHARGED OR OF AN
ATTEMPT TO COMMIT EITHER THE OFFENSE CHARGED OR AN OFFENSE NECESSARILY
INCLUDED THEREIN IF THE ATTEMPT IS AN OFFENSE."  THE RULE CODIFIED PRE
EXISTING LAW, IN PARTICULAR FORMER ^ 565 OF TIT. 18, ACT OF JUNE 1,
1872, ^ 9, 17 STAT. 198.  SEE BERRA V. UNITED STATES, 351 U.S. 131, 134
AND N. 6 (1956). 

/7/  SEE ALSO, E. G., GOVERNMENT OF VIRGIN ISLANDS V. CARMONA, 422
F. 2D 95, 100 (CA3 1970); UNITED STATES V. COMER, 137 U.S. APP. D.C.
214, 218, 421 F. 2D 1149, 1153 (1970). 

/8/  IF A NON-INDIAN HAD COMMITTED THIS SAME ACT ON AN INDIAN
RESERVATION, HE WOULD, OF COURSE, BE TRIED IN FEDERAL COURT UNDER
FEDERAL ENCLAVE LAW.  18 U.S.C. ^ 1152. 

/9/  THE CONSTITUTIONALITY OF THE MAJOR CRIMES ACT WAS UPHELD IN
UNITED STATES V. KAGAMA, 118 U.S. 375 (1886), WHERE THE COURT REJECTED
THE ARGUMENT THAT PUNISHMENT OF CRIMINAL OFFENSES BY INDIANS ON INDIAN
LAND IS EXCLUSIVELY A STATE FUNCTION. 

/10/  THE SAME CONGRESSIONAL PURPOSE IS EVIDENT IN THE MOST RECENT
AMENDMENT TO THE ACT, THE 1968 ADDITION TO THE LIST OF ENUMERATED
CRIMES OF THE OFFENSE OF ASSAULT RESULTING IN SERIOUS BODILY INJURY. 
SEE S. REP. NO. 721, 90TH CONG., 1ST SESS., 32 (1967): "WITHOUT THIS
AMENDMENT AN INDIAN CAN COMMIT A SERIOUS CRIME AND RECEIVE ONLY A
MAXIMUM SENTENCE OF 6 MONTHS.  SINCE INDIAN COURTS CANNOT IMPOSE MORE
THAN A 6-MONTH SENTENCE, THE CRIME OF AGGRAVATED ASSAULT SHOULD BE
PROSECUTED IN A FEDERAL COURT, WHERE THE PUNISHMENT WILL BE IN
PROPORTION TO THE GRAVITY OF THE OFFENSE." 

/11/  THE REMARK, FROM THE SECRETARY'S ANNUAL REPORT, WAS QUOTED BY
REPRESENTATIVE CUTCHEON DURING DEBATE IN THE HOUSE OF REPRESENTATIVES
ON THE PROPOSED STATUTE.  16 CONG. REC. 935 (1885). 

/12/  IN MAKING THE MOST RECENT AMENDMENT TO THE MAJOR CRIMES ACT,
SEE N. 10, SUPRA, CONGRESS NEGLECTED TO ADD THE OFFENSE OF ASSAULT
RESULTING IN SERIOUS BODILY INJURY TO BOTH OF THE SECTIONS IN WHICH THE
ACT IS NOW CODIFIED.  THE GOVERNMENT CONCEDES THAT THE FAILURE TO ADD
THIS NEW OFFENSE TO THE LIST OF THOSE ENUMERATED IN 18 U.S.C. ^ 3242 IS
"PROBABLY A CONGRESSIONAL OVERSIGHT."  BRIEF FOR THE UNITED STATES 18
N. 17.  IN ANY CASE, CONGRESS PLAINLY DID NOT INTEND TO PROVIDE A
SPECIAL RULE FOR THE TRIAL OF INDIANS CHARGED WITH ASSAULT RESULTING IN
SERIOUS BODILY INJURY. 

/13/  SIMILARLY, IN VIEW OF OUR CONCLUSION THAT THE TRIAL COURT
ERRED IN DENYING THE REQUESTED INSTRUCTION, WE NEED NOT DECIDE WHETHER
AN APPARENT DEFECT IN THE INDICTMENT--A DEFECT TO WHICH PETITIONER DID
NOT OBJECT--PROVIDES AN INDEPENDENT GROUND FOR REVERSAL.  THE MAJOR
CRIMES ACT PROVIDES THAT AN INDIAN MAY BE TRIED IN FEDERAL COURT FOR
THE OFFENSE OF ASSAULT RESULTING IN SERIOUS BODILY INJURY.  THE STATUTE
FURTHER PROVIDES THAT THIS OFFENSE "SHALL BE DEFINED AND PUNISHED IN
ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH SUCH OFFENSE WAS
COMMITTED."  PETITIONER WAS NOT CHARGED, HOWEVER, WITH ASSAULT
RESULTING IN SERIOUS BODILY INJURY, BUT RATHER WITH ASSAULT WITH INTENT
TO COMMIT SERIOUS BODILY INJURY.  SEE S. D. COMP. LAWS ANN. ^ 22 - 28 -
12 (1967).  THE SOUTH DAKOTA CRIMINAL CODE DOES NOT SPECIFICALLY
PROSCRIBE THE OFFENSE OF ASSAULT RESULTING IN SERIOUS BODILY INJURY. 
WHETHER THE PROSECUTION SHOULD HAVE BEEN REQUIRED TO PROVE NOT ONLY
THAT THE PETITIONER INTENDED TO COMMIT SERIOUS BODILY INJURY, BUT ALSO
THAT THE ASSAULT RESULTED IN SERIOUS BODILY INJURY, IS A QUESTION WE DO
NOT NOW DECIDE. 

/14/  THE GOVERNMENT ARGUES THAT "(THE RULING PETITIONER SEEKS
WOULD, UNDER THE PRINCIPLE OF MUTUALITY, EMPOWER FEDERAL PROSECUTORS,
DISSATISFIED WITH THE LENIENCY OF TRIBAL COURTS, TO PROSECUTE IN
MARGINAL CASES, KNOWING THAT IF THE MAJOR OFFENSE IS NOT PROVED THE
PENALTY FOR THE MINOR OFFENSE WOULD BE MORE SUBSTANTIAL THAN IN THE
TRIBAL COURTS."  BRIEF FOR THE UNITED STATES 22.  THE LOWER COURTS HAVE
OFTEN HELD THAT A DEFENDANT IS ENTITLED TO AN INSTRUCTION ON A LESSER
INCLUDED OFFENSE ONLY IN CIRCUMSTANCES WHERE THE PROSECUTION COULD ALSO
ASK FOR SUCH AN INSTRUCTION.  SEE, E. G., KELLY V. UNITED STATES, 125
U.S. APP. D.C. 205, 207, 370 F. 2D 227, 229 (1966).  THAT IS THE
PRINCIPLE OF MUTUALITY TO WHICH THE GOVERNMENT REFERS.  NEVERTHELESS,
JUDGE WILKEY, SPEAKING FOR A PANEL OF THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT, RECENTLY CONCLUDED THAT "DESPITE THE
PATINA OF ANTIQUITY, CONSIDERATIONS OF JUSTICE AND GOOD JUDICIAL
ADMINISTRATION WARRANT DISPENSING WITH MUTUALITY AS AN ESSENTIAL
PREREQUISITE TO THE DEFENSE'S RIGHT TO A LESSER INCLUDED OFFENSE
CHARGE."  UNITED STATES V. WHITAKER, 144 U.S. APP. D.C. 344, 351, 447
F. 2D 314, 321 (1971).  WHETHER THAT CONCLUSION IS SOUND, AT LEAST IN
THE SPECIAL SITUATION PRESENTED BY THE CASE BEFORE US, IS A QUESTION
THAT WE NEED NOT NOW DECIDE. 

MR. JUSTICE STEWART, WITH WHOM JR. JUSTICE POWELL AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

AS THE OPINION OF THE COURT DEMONSTRATES, THE MAJOR CRIMES ACT, 18
U.S.C. ^^ 1153, 3242, WAS ENACTED IN RESPONSE TO THIS COURT'S DECISION
IN EX PARTE CROW DOG, 109 U.S. 556.  THE ACT CONFERRED JURISDICTION
UPON FEDERAL DISTRICT COURTS OVER CERTAIN ENUMERATED CRIMES COMMITTED
BY INDIANS ON AN INDIAN RESERVATION, LEAVING TRIBAL JURISDICTION INTACT
AS TO ALL OTHER CRIMES.  AN INDIAN TRIED IN A FEDERAL COURT UNDER THE
ACT IS GUARANTEED EQUAL PROCEDURAL RIGHTS, 18 U.S.C. ^ 3242, INCLUDING
THE BENEFITS AND BURDENS OF FED. RULE CRIM. PROC. 31 (C), DEALING WITH
THE LESSER INCLUDED OFFENSE JURY INSTRUCTION. 

IN THESE RESPECTS, I AGREE WITH THE COURT.  BUT THE COURT GOES ON TO
HOLD "THAT WHERE AN INDIAN IS PROSECUTED IN A FEDERAL COURT UNDER THE
PROVISIONS OF THE ACT, THE ACT DOES NOT REQUIRE THAT HE BE DEPRIVED OF
THE PROTECTION AFFORDED BY AN INSTRUCTION ON A LESSER INCLUDED
OFFENSE.  . . ."  ANTE, AT 214.  I THINK THIS HOLDING WOULD BE CORRECT
ONLY IF THE LESSER INCLUDED OFFENSE WERE ONE OVER WHICH THE FEDERAL
COURT HAS JURISDICTION.  BECAUSE THE TRIAL COURT DID NOT HAVE
JURISDICTION OVER THE "LESSER INCLUDED OFFENSE" IN THE PRESENT CASE, I
MUST RESPECTFULLY DISSENT.  /1/ 

IT IS A COMMONPLACE THAT FEDERAL COURTS ARE COURTS OF LIMITED
JURISDICTION, AND THAT THERE ARE NO COMMON-LAW OFFENSES AGAINST THE
UNITED STATES.  "THE LEGISLATIVE AUTHORITY OF THE UNION MUST FIRST MAKE
AN ACT A CRIME, AFFIX A PUNISHMENT TO IT, AND DECLARE THE COURT THAT
SHALL HAVE JURISDICTION OF THE OFFENSE."  UNITED STATES V. HUDSON, 7
CRANCH 32, 34.  "IT IS AXIOMATIC THAT STATUTES CREATING AND DEFINING
CRIMES CANNOT BE EXTENDED BY INTENDMENT, AND THAT NO ACT, HOWEVER
WRONGFUL, CAN BE PUNISHED UNDER SUCH A STATUTE UNLESS CLEARLY WITHIN
ITS TERMS."  TODD V. UNITED STATES, 158 U.S. 278, 282.  SEE 1 J. MOORE,
FEDERAL PRACTICE PARA. 0.60 (7).  AND IT IS ALSO CLEAR THAT SIMPLE
ASSAULT BY AN INDIAN ON AN INDIAN RESERVATION, THE PURPORTED "LESSER
INCLUDED OFFENSE" IN THIS CASE, COMES WITHIN NO FEDERAL JURISDICTIONAL
STATUTE.  THE COURT IN EFFECT HOLDS THAT FED. RULE CRIM. PROC. 31 (C)
IMPLICITLY OPERATES TO CONFER FEDERAL JURISDICTION OVER SIMPLE ASSAULT
IN THE CIRCUMSTANCES OF THIS CASE, AND WITH ALL RESPECT THIS SEEMS TO
ME A HOLDING UTTERLY WITHOUT SUPPORT. 

THE RULE STATES THAT: 

"THE DEFENDANT MAY BE FOUND GUILTY OF AN OFFENSE NECESSARILY
INCLUDED IN THE OFFENSE CHARGED OR OF AN ATTEMPT TO COMMIT EITHER THE
OFFENSE CHARGED OR AN OFFENSE NECESSARILY INCLUDED THEREIN IF THE
ATTEMPT IS AN OFFENSE."  THE RULE IS THUS PHRASED IN TERMS OF
"OFFENSES."  IT SEEMS TO ME CLEAR THAT "OFFENSE" MEANS FEDERAL OFFENSE,
AND THIS VIEW IS CONFIRMED BY THE FACT THAT THE RULE AUTHORIZES A
LESSER INCLUDED OFFENSE INSTRUCTION WITH RESPECT TO "AN ATTEMPT" ONLY
WHERE THE ATTEMPT ITSELF IS ALSO A FEDERAL CRIME. 

THE CONCLUSION THAT A LESSER INCLUDED OFFENSE INSTRUCTION IS
POSSIBLE ONLY WHEN THE LESSER OFFENSE IS WITHIN FEDERAL JURISDICTION
DOES NOT VIOLATE 18 U.S.C. ^ 3242, PROVIDING THAT INDIANS CHARGED UNDER
ITS PROVISIONS "SHALL BE TRIED IN THE SAME COURTS, AND IN THE SAME
MANNER, AS ARE ALL OTHER PERSONS COMMITTING ANY OF THE ABOVE CRIMES
WITHIN THE EXCLUSIVE JURISDICTION OF THE UNITED STATES."  FOR THIS
CONCLUSION WOULD APPLY AS WELL IN ANY INSTANCE WHERE CONGRESS HAS
ESTABLISHED A DIVIDED CRIMINAL JURISDICTION BETWEEN A FEDERAL DISTRICT
COURT AND ANOTHER FORUM.  SEE, E. G., DEFLUMER V. MANCUSI, 443 F. 2D
940 (CRIMINAL JURISDICTION IN FEDERAL DISTRICT COURT OVER 16-YEAR-OLD
DEFENDANTS ONLY WHEN CHARGED WITH CERTAIN ENUMERATED CRIMES).  CONGRESS
ESTABLISHED JURISDICTION IN THE FEDERAL DISTRICT COURTS ONLY OVER
CERTAIN SPECIFICALLY ENUMERATED OFFENSES COMMITTED BY INDIANS ON INDIAN
RESERVATIONS.  IT VESTED A RESIDUAL JURISDICTION IN OTHER FORUMS OVER
ALL OTHER OFFENSES.  ACCORDINGLY, I CONCLUDE THAT A LESSER INCLUDED
OFFENSE INSTRUCTION WOULD HAVE BEEN IMPROPER IN THE PRESENT CASE, WHERE
THE FEDERAL COURT HAD NO JURISDICTION OVER THE LESSER OFFENSE OF SIMPLE
ASSAULT.  /2/  SEE KILLS CROW V. UNITED STATES, 451 F. 2D 323, 325. 

THE COURT SEEMS TO AGREE THAT A UNITED STATES ATTORNEY COULD NOT
SEEK AN INDICTMENT IN A FEDERAL DISTRICT COURT OF AN INDIAN FOR SIMPLE
ASSAULT COMMITTED ON AN INDIAN RESERVATION.  THIS BEING SO, I CAN FIND
NO BASIS FOR CONCLUDING THAT JURISDICTION COMES INTO BEING SIMPLY BY
MOTION OF THE DEFENSE.  "IT NEEDS NO CITATION OF AUTHORITIES TO SHOW
THAT THE MERE CONSENT OF PARTIES CANNOT CONFER UPON A COURT OF THE
UNITED STATES THE JURISDICTION TO HEAR AND DECIDE A CASE."  PEOPLE'S
BANK V. CALHOUN, 102 U.S. 256, 260 - 261.  SEE ALSO 1 J. MOORE, FEDERAL
PRACTICE PARA. 0.60 (4).  WERE THE PETITIONER'S MOTION FOR AN
INSTRUCTION ON SIMPLE ASSAULT TO BE GRANTED, AND WERE A JURY TO CONVICT
ON THAT OFFENSE, I SHOULD HAVE SUPPOSED UNTIL THE COURT'S DECISION
TODAY THAT THE CONVICTION COULD HAVE BEEN SET ASIDE FOR WANT OF
JURISDICTION. 

/1/ THE COURT DOES NOT REACH ANY OTHER POSSIBLE GROUND FOR REVERSING
THIS CONVICTION, AND, ACCORDINGLY, NEITHER DO I. 

/2/  THE PETITIONER WAS NOT CHARGED WITH "ASSAULT RESULTING IN
SERIOUS BODILY INJURY," THE OFFENSE SPECIFIED IN THE MAJOR CRIMES ACT,
BUT INSTEAD WITH ASSAULT WITH INTENT TO COMMIT SERIOUS BODILY INJURY,
S. D. COMP. LAWS ANN. ^ 22 - 28 - 12 (1967).  THIS WAS APPARENTLY
BECAUSE THE MAJOR CRIMES ACT PROVIDES THAT "ASSAULT RESULTING IN
SERIOUS BODILY INJURY" IS TO BE "DEFINED AND PUNISHED IN ACCORDANCE
WITH THE LAWS OF THE STATE IN WHICH SUCH OFFENSE WAS COMMITTED."  SINCE
SOUTH DAKOTA APPEARS TO HAVE NO STATUTE IDENTICALLY MATCHING THE
OFFENSE DESCRIBED IN THE MAJOR CRIMES ACT, ' 22 - 18 - 12 OF THE SOUTH
DAKOTA LAWS WAS RELIED UPON TO PROSECUTE THE OFFENSE CHARGED HERE.  SEE
ALSO KILLS CROW V. UNITED STATES, 451 F. 2D 323.  IN A CASE WHERE NO
SERIOUS BODILY INJURY OCCURRED, A DEFENDANT MIGHT WELL ARGUE THAT HIS
PROSECUTION UNDER THIS STATE LAW DEFINITION IS NO MORE UNDER THE
JURISDICTION OF A FEDERAL DISTRICT COURT THAN WOULD BE A PROSECUTION
FOR SIMPLE ASSAULT. 

MARK V. MEIERHENRY ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER
PRO HAC VICE. 

RICHARD B. STONE ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
PETERSEN, DEPUTY SOLICITOR GENERAL LACOVARA, HARRY R. SACHSE, AND
JEROME M. FEIT. 
..END :







SCHNECKLOTH V. BUSTAMONTE 412 U.S. 218 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT 

     NO. 71 - 732.  ARGUED OCTOBER 10, 1972--DECIDED MAY 29, 1973;
448 F. 2D 699, REVERSED. 


    DURING THE COURSE OF A CONSENTED SEARCH OF A CAR THAT HAD BEEN

  STOPPED BY OFFICERS FOR TRAFFIC VIOLATIONS, EVIDENCE WAS

  DISCOVERED THAT WAS USED TO CONVICT RESPONDENT OF UNLAWFULLY

  POSSESSING A CHECK.  IN A HABEAS CORPUS PROCEEDING, THE COURT OF

  APPEALS, REVERSING THE DISTRICT COURT, HELD THAT THE PROSECUTION

  HAD FAILED TO PROVE THAT CONSENT TO THE SEARCH HAD BEEN MADE WITH

  THE UNDERSTANDING THAT IT COULD FREELY BE WITHHELD.  HELD:  WHEN

  THE SUBJECT OF A SEARCH IS NOT IN CUSTODY AND THE STATE WOULD

JUSTIFY A SEARCH ON THE BASIS OF HIS CONSENT, THE FOURTH AND

  FOURTEENTH AMENDMENTS REQUIRE THAT IT DEMONSTRATE THAT THE

  CONSENT WAS IN FACT VOLUNTARY; VOLUNTARINESS IS TO BE DETERMINED

  FROM THE TOTALITY OF THE SURROUNDING CIRCUMSTANCES.  WHILE

  KNOWLEDGE OF A RIGHT TO REFUSE CONSENT IS A FACTOR TO BE TAKEN

  INTO ACCOUNT, THE STATE NEED NOT PROVE THAT THE ONE GIVING

  PERMISSION TO SEARCH KNEW THAT HE HAD A RIGHT TO WITHHOLD HIS

  CONSENT.  PP. 223 - 239. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
BLACKMUN, J., FILED A CONCURRING OPINION, POST, P. 249.  POWELL, J.,
FILED A CONCURRING OPINION IN WHICH BURGER, C. J., AND REHNQUIST, J.,
JOINED, POST, P. 250.  DOUGLAS, J., POST, P. 275, BRENNAN, J., POST, P.
276, AND MARSHALL, J., POST, P. 277, FILED DISSENTING OPINIONS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IT IS WELL SETTLED UNDER THE FOURTH AND FOURTEENTH AMENDMENTS THAT A
SEARCH CONDUCTED WITHOUT A WARRANT ISSUED UPON PROBABLE CAUSE IS "PER
SE UNREASONABLE . . . SUBJECT ONLY TO A FEW SPECIFICALLY ESTABLISHED
AND WELL-DELINEATED EXCEPTIONS."  KATZ V. UNITED STATES, 389 U.S., 347,
357; COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 454 - 455; CHAMBERS V.
MARONEY, 399 U.S. 42, 51.  IT IS EQUALLY WELL SETTLED THAT ONE OF THE
SPECIFICALLY ESTABLISHED EXCEPTIONS TO THE REQUIREMENTS OF BOTH A
WARRANT AND PROBABLE CAUSE IS A SEARCH THAT IS CONDUCTED PURSUANT TO
CONSENT.  DAVIS V. UNITED STATES, 328 U.S. 582, 593 - 594; ZAP V.
UNITED STATES, 328 U.S. 624, 630.  THE CONSTITUTIONAL QUESTION IN THE
PRESENT CASE CONCERNS THE DEFINITION OF "CONSENT" IN THIS FOURTH AND
FOURTEENTH AMENDMENT CONTEXT. 

        I 

THE RESPONDENT WAS BROUGHT TO TRIAL IN A CALIFORNIA COURT UPON A
CHARGE OF POSSESSING A CHECK WITH INTENT TO DEFRAUD.  /1/  HE MOVED TO
SUPPRESS THE INTRODUCTION OF CERTAIN MATERIAL AS EVIDENCE AGAINST HIM
ON THE GROUND THAT THE MATERIAL HAD BEEN ACQUIRED THROUGH AN
UNCONSTITUTIONAL SEARCH AND SEIZURE.  IN RESPONSE TO THE MOTION, THE
TRIAL JUDGE CONDUCTED AN EVIDENTIARY HEARING WHERE IT WAS ESTABLISHED
THAT THE MATERIAL IN QUESTION HAD BEEN ACQUIRED BY THE STATE UNDER THE
FOLLOWING CIRCUMSTANCES: 

WHILE ON ROUTINE PATROL IN SUNNYVALE, CALIFORNIA, AT APPROXIMATELY
2:40 IN THE MORNING, POLICE OFFICER JAMES RAND STOPPED AN AUTOMOBILE
WHEN HE OBSERVED THAT ONE HEADLIGHT AND ITS LICENSE PLATE LIGHT WERE
BURNED OUT.  SIX MEN WERE IN THE VEHICLE.  JOE ALCALA AND THE
RESPONDENT, ROBERT BUSTAMONTE, WERE IN THE FRONT SEAT WITH JOE
GONZALES, THE DRIVER.  THREE OLDER MEN WERE SEATED IN THE REAR.  WHEN,
IN RESPONSE TO THE POLICEMEN'S QUESTION, GONZALES COULD NOT PRODUCE A
DRIVER'S LICENSE, OFFICER RAND ASKED IF ANY OF THE OTHER FIVE HAD ANY
EVIDENCE OF IDENTIFICATION.  ONLY ALCALA PRODUCED A LICENSE, AND HE
EXPLAINED THAT THE CAR WAS HIS BROTHER'S.  AFTER THE SIX OCCUPANTS HAD
STEPPED OUT OF THE CAR AT THE OFFICER'S REQUEST AND AFTER TWO
ADDITIONAL POLICEMEN HAD ARRIVED, OFFICER RAND ASKED ALCALA IF HE COULD
SEARCH THE CAR.  ALCALA REPLIED, "SURE, GO AHEAD."  PRIOR TO THE SEARCH
NO ONE WAS THREATENED WITH ARREST AND, ACCORDING TO OFFICER RAND'S
UNCONTRADICTED TESTIMONY, IT "WAS ALL VERY CONGENIAL AT THIS TIME." 
GONZALES TESTIFIED THAT ALCALA ACTUALLY HELPED IN THE SEARCH OF THE
CAR, BY OPENING THE TRUNK AND GLOVE COMPARTMENT.  IN GONZALES' WORDS:
"(THE POLICE OFFICER ASKED JOE (ALCALA), HE GOES, 'DOES THE TRUNK
OPEN?'  AND JOE SAID, 'YES.'  HE WENT TO THE CAR AND GOT THE KEYS AND
OPENED UP THE TRUNK."  WADDED UP UNDER THE LEFT REAR SEAT, THE POLICE
OFFICERS FOUND THREE CHECKS THAT HAD PREVIOUSLY BEEN STOLEN FROM A CAR
WASH. 

THE TRIAL JUDGE DENIED THE MOTION TO SUPPRESS, AND THE CHECKS IN
QUESTION WERE ADMITTED IN EVIDENCE AT BUSTAMONTE'S TRIAL.  ON THE BASIS
OF THIS AND OTHER EVIDENCE HE WAS CONVICTED, AND THE CALIFORNIA COURT
OF APPEAL FOR THE FIRST APPELLATE DISTRICT AFFIRMED THE CONVICTION. 
270 CAL. APP. 2D 648, 76 CAL. RPTR.  17.  IN AGREEING THAT THE SEARCH
AND SEIZURE WERE CONSTITUTIONALLY VALID, THE APPELLATE COURT APPLIED
THE STANDARD EARLIER FORMULATED BY THE SUPREME COURT OF CALIFORNIA IN
AN OPINION BY THEN JUSTICE TRAYNOR:  "WHETHER IN A PARTICULAR CASE AN
APPARENT CONSENT WAS IN FACT VOLUNTARY GIVEN OR WAS IN SUBMISSION TO AN
EXPRESS OR IMPLIED ASSERTION OF AUTHORITY, IS A QUESTION OF FACT TO BE
DETERMINED IN THE LIGHT OF ALL THE CIRCUMSTANCES."  PEOPLE V. MICHAEL,
45 L. 2D 751, 753, 290 P. 2D 852, 854.  THE APPELLATE COURT FOUND THAT
"(IN THE INSTANT CASE THE PROSECUTION MET THE NECESSARY BURDEN OF
SHOWING CONSENT . . . SINCE THERE WERE CLEARLY CIRCUMSTANCES FROM WHICH
THE TRIAL COURT COULD ASCERTAIN THAT CONSENT HAD BEEN FREELY GIVEN
WITHOUT COERCION OR SUBMISSION TO AUTHORITY.  NOT ONLY OFFICER RAND,
BUT GONZALES, THE DRIVER OF THE AUTOMOBILE, TESTIFIED THAT ALCALA'S
ASSENT TO THE SEARCH OF HIS BROTHER'S AUTOMOBILE WAS FREELY, EVEN
CASUALLY GIVEN.  AT THE TIME OF THE REQUEST TO SEARCH THE AUTOMOBILE
THE ATMOSPHERE, ACCORDING TO RAND, WAS 'CONGENIAL' AND THERE HAD BEEN
NO DISCUSSION OF ANY CRIME.  AS NOTED, GONZALES SAID ALCALA EVEN
ATTEMPTED TO AID IN THE SEARCH."  270 CAL. APP. 2D, AT 652, 76 CAL.
RPTR., AT 20.  THE CALIFORNIA SUPREME COURT DENIED REVIEW.  /2/ 

THEREAFTER, THE RESPONDENT SOUGHT A WRIT OF HABEAS CORPUS IN A
FEDERAL DISTRICT COURT.  IT WAS DENIED.  /3/  ON APPEAL, THE COURT OF
APPEALS FOR THE NINTH CIRCUIT, RELYING ON ITS PRIOR DECISIONS IN CIPRES
V. UNITED STATES, 343 F. 2D 95, AND SCHOEPFIN V. UNITED STATES, 391 F.
2D 390, SET ASIDE THE DISTRICT COURT'S ORDER.  448 F. 2D 699.  THE
APPELLATE COURT REASONED THAT A CONSENT WAS A WAIVER OF A PERSON'S
FOURTH AND FOURTEENTH AMENDMENT RIGHTS, AND THAT THE STATE WAS UNDER AN
OBLIGATION TO DEMONSTRATE, NOT ONLY THAT THE CONSENT HAD BEEN
UNCOERCED, BUT THAT IT HAD BEEN GIVEN WITH AN UNDERSTANDING THAT IT
COULD BE FREELY AND EFFECTIVELY WITHHELD.  CONSENT COULD NOT BE FOUND,
THE COURT HELD, SOLELY FROM THE ABSENCE OF COERCION AND A VERBAL
EXPRESSION OF ASSENT.  SINCE THE DISTRICT COURT HAD NOT DETERMINED THAT
ALCALA HAD KNOWN THAT HIS CONSENT COULD HAVE BEEN WITHHELD AND THAT HE
COULD HAVE REFUSED TO HAVE HIS VEHICLE SEARCHED, THE COURT OF APPEALS
VACATED THE ORDER DENYING THE WRIT AND REMANDED THE CASE FOR FURTHER
PROCEEDINGS.  WE GRANTED CERTIORARI TO DETERMINE WHETHER THE FOURTH AND
FOURTEENTH AMENDMENTS REQUIRE THE SHOWING THOUGHT NECESSARY BY THE
COURT OF APPEALS.  405 U.S. 953. 

        II 

IT IS IMPORTANT TO MAKE IT CLEAR AT THE OUTSET WHAT IS NOT INVOLVED
IN THIS CASE.  THE RESPONDENT CONCEDES THAT A SEARCH CONDUCTED PURSUANT
TO A VALID CONSENT IS CONSTITUTIONALLY PERMISSIBLE.  IN KATZ V. UNITED
STATES, 389 U.S., AT 358, AND MORE RECENTLY IN VALE V. LOUISIANA, 399
U.S. 30, 35, WE RECOGNIZED THAT A SEARCH AUTHORIZED BY CONSENT IS
WHOLLY VALID.  SEE ALSO DAVIS V. UNITED STATES, 328 U.S., AT 593 - 594;
ZAP V. UNITED STATES, 328 U.S., AT 630.  /4/  AND SIMILARLY THE STATE
CONCEDES THAT "(WHEN A PROSECUTOR SEEKS TO RELY UPON CONSENT TO JUSTIFY
THE LAWFULNESS OF A SEARCH, HE HAS THE BURDEN OF PROVING THAT THE
CONSENT WAS, IN FACT, FREELY AND VOLUNTARILY GIVEN."  BUMER V. NORTH
CAROLINA, 391 U.S. 543, 548.  SEE ALSO JOHNSON V. UNITED STATES, 333
U.S. 10; AMOS V. UNITED STATES, 255 U.S. 313. 

THE PRECISE QUESTION IN THIS CASE, THEN, IS WHAT MUST THE
PROSECUTION PROVE TO DEMONSTRATE THAT A CONSENT WAS "VOLUNTARILY"
GIVEN.  AND UPON THAT QUESTION THERE IS A SQUARE CONFLICT OF VIEWS
BETWEEN THE STATE AND FEDERAL COURTS THAT HAVE REVIEWED THE SEARCH
INVOLVED IN THE CASE BEFORE US.  THE COURT OF APPEALS FOR THE NINTH
CIRCUIT CONCLUDED THAT IT IS AN ESSENTIAL PART OF THE STATE'S INITIAL
BURDEN TO PROVE THAT A PERSON KNOWS HE HAS A RIGHT TO REFUSE CONSENT. 
THE CALIFORNIA COURTS HAVE FOLLOWED THE RULE THAT VOLUNTARINESS IS A
QUESTION OF FACT TO BE DETERMINED FROM THE TOTALITY OF ALL THE
CIRCUMSTANCES, AND THAT THE STATE OF A DEFENDANT'S KNOWLEDGE IS ONLY
ONE FACTOR TO BE TAKEN INTO ACCOUNT IN ASSESSING THE VOLUNTARINESS OF A
CONSENT.  SEE, E. G., PEOPLE V. TREMAYNE, 20 CAL. APP. 3D 1006, 98 CAL.
RPTR.  193; PEOPLE V. ROBERTS, 246 CAL. APP. 2D 715, 55 CAL. RPTR. 
62. 

        A 

THE MOST EXTENSIVE JUDICIAL EXPOSITION OF THE MEANING OF
"VOLUNTARINESS" HAS BEEN DEVELOPED IN THOSE CASES IN WHICH THE COURT
HAS HAD TO DETERMINE THE "VOLUNTARINESS" OF A DEFENDANT'S CONFESSION
FOR PURPOSES OF THE FOURTEENTH AMENDMENT.  ALMOST 40 YEARS AGO, IN
BROWN V. MISSISSIPPI, 297 U.S. 278, THE COURT HELD THAT A CRIMINAL
CONVICTION BASED UPON A CONFESSION OBTAINED BY BRUTALITY AND VIOLENCE
WAS CONSTITUTIONALLY INVALID UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  IN SOME 30 DIFFERENT CASES DECIDED DURING THE
ERA THAT INTERVENED BETWEEN BROWN AND ESCOBEDO V. ILLINOIS, 378 U.S.
478, THE COURT WAS FACED WITH THE NECESSIRY OF DETERMINING WHETHER IN
FACT THE CONFESSIONS IN ISSUE HAD BEEN "VOLUNTARILY" GIVEN.  /5/  IT IS
TO THAT BODY OF CASE LAW TO WHICH WE TURN FOR INITIAL GUIDANCE ON THE
MEANING OF "VOLUNTARINESS" IN THE PRESENT CONTEXT.  /6/ 

THOSE CASES YIELD NO TALISMANIC DEFINITION OF "VOLUNTARINESS,"
MECHANICALLY APPLICABLE TO THE HOST OF SITUATIONS WHERE THE QUESTION
HAS ARISEN.  "THE NOTION OF 'VOLUNTARINESS,'" MR. JUSTICE FRANKFURTER
ONCE WROTE, "IS ITSELF AN AMPHIBIAN."  CULOMBE V. CONNECTICUT, 367 U.S.
568, 604 - 605.  IT CANNOT BE TAKEN LITERALLY TO MEAN A "KNOWING"
CHOICE.  "EXCEPT WHERE A PERSON IS UNCONSCIOUS OR DRUGGED OR OTHERWISE
LACKS CAPACITY FOR CONSCIOUS CHOICE, ALL INCRIMINATING STATEMENTS--EVEN
THOSE MADE UNDER BRUTAL TREATMENT--ARE 'VOLUNTARY' IN THE SENSE OF
REPRESENTING A CHOICE OF ALTERNATIVES.  ON THE OTHER HAND, IF
'VOLUNTARINESS' INCORPORATES NOTIONS OF 'BUT-FOR' CAUSE, THE QUESTION
SHOULD BE WHETHER THE STATEMENT WOULD HAVE BEEN MADE EVEN ABSENT
INQUIRY OR OTHER OFFICIAL ACTION.  UNDER SUCH A TEST, VIRTUALLY NO
STATEMENT WOULD BE VOLUNTARY BECAUSE VERY FEW PEOPLE GIVE INCRIMINATING
STATEMENTS IN THE ABSENCE OF OFFICIAL ACTION OF SOME KINE."  /7/  IT IS
THUS EVIDENT THAT NEITHER LINGUISTICS NOR EPISTEMOLOGY WILL PROVIDE A
READY DEFINITION OF THE MEANING OF "VOLUNTARINESS." 

RATHER, "VOLUNTARINESS" HAS REFLECTED AN ACCOMMODATION OF THE
COMPLEX OF VALUES IMPLICATED IN POLICE QUESTIONING OF A SUSPECT.  AT
ONE END OF THE SPECTRUM IS THE ACKNOWLEDGED NEED FOR POLICE QUESTIONING
AS A TOOL FOR THE EFFECTIVE ENFORCEMENT OF CRIMINAL LAWS.  SEE CULOMBE
V. CONNECTICUT, SUPRA, AT 578 - 580.  WITHOUT SUCH INVESTIGATION, THOSE
WHO WERE INNOCENT MIGHT BE FALSELY ACCUSED, THOSE WHO WERE GUILTY MIGHT
WHOLLY ESCAPE PROSECUTION, AND MANY CRIMES WOULD GO UNSOLVED.  IN
SHORT, THE SECURITY OF ALL WOULD BE DIMINISHED.  HAYNES V. WASHINGTON,
373 U.S. 503, 515.  AT THE OTHER END OF THE SPECTRUM IS THE SET OF
VALUES REFLECTING SOCIETY'S DEEPLY FELT BELIEF THAT THE CRIMINAL LAW
CANNOT BE USED AS AN INSTRUMENT OF UNFAIRNESS, AND THAT THE POSSIBILITY
OF UNFAIR AND EVEN BRUTAL POLICE TACTICS POSES A REAL AND SERIOUS
THREAT TO CIVILIZED NOTIONS OF JUSTICE.  "(IN CASES INVOLVING
INVOLUNTARY CONFESSIONS, THIS COURT ENFORCES THE STRONGLY FELT ATTITUDE
OF OUR SOCIETY THAT IMPORTANT HUMAN VALUES ARE SACRIFICED WHERE AN
AGENCY OF THE GOVERNMENT, IN THE COURSE OF SECURING A CONVICTION,
WRINGS A CONFESSION OUT OF AN ACCUSED AGAINST HIS WILL."  BLACKBURN V.
ALABAMA, 361 U.S. 1 9, 206 - 207.  SEE ALSO CULOMBE V. CONNECTICUT,
SUPRA, AT 581 - 584; CHAMBERS V. FLORIDA, 309 U.S. 227, 235 - 238. 

THIS COURT'S DECISIONS REFLECT A FRANK RECOGNITION THAT THE
CONSTITUTION REQUIRES THE SACRIFICE OF NEITHER SECURITY NOR LIBERTY. 
THE DUE PROCESS CLAUSE DOES NOT MANDATE THAT THE POLICE FORGO ALL
QUESTIONING, NOR THAT THEY BE GIVEN CARTE BLANCHE TO EXTRACT WHAT THEY
CAN FROM A SUSPECT.  "THE ULTIMATE TEST REMAINS THAT WHICH HAS BEEN THE
ONLY CLEARLY ESTABLISHED TEST IN ANGLO-AMERICAN COURTS FOR TWO HUNDRED
YEARS:  THE TEST OF VOLUNTARINESS.  IS THE CONFESSION THE PRODUCT OF AN
ESSENTIALLY FREE AND UNCONSTRAINED CHOICE BY ITS MAKER?  IF IT IS, IF
HE HAS WILLED TO CONFESS, IT MAY BE USED AGAINST HIM.  IF IT IS NOT, IF
HIS WILL HAS BEEN OVERBORNE AND HIS CAPACITY FOR SELF-DETERMINATION
CRITICALLY IMPAIRED, THE USE OF HIS CONFESSION OFFENDS DUE PROCESS." 
CULOMBE V. CONNECTICUT, SUPRA, AT 602. 

IN DETERMINING WHETHER A DEFENDANT'S WILL WAS OVERBORNE IN A
PARTICULAR CASE, THE COURT HAS ASSESSED THE TOTALITY OF ALL THE
SURROUNDING CIRCUMSTANCES--BOTH THE CHARACTERISTICS OF THE ACCUSED AND
THE DETAILS OF THE INTERROGATION.  SOME OF THE FACTORS TAKEN INTO
ACCOUNT HAVE INCLUDED THE YOUTH OF THE ACCUSED, E. G., HALEY V. OHIO,
332 U.S. 596; HIS LACK OF EDUCATION, E. G., PAYNE V. ARKANSAS, 356 U.S.
560; OR HIS LOW INTELLIGENCE, E. G., FIKES V. ALABAMA, 352 U.S. 191;
THE LACK OF ANY ADVICE TO THE ACCUSED OF HIS CONSTITUTIONAL RIGHTS, E.
G., DAVIS V. NORTH CAROLINA, 384 U.S. 737; THE LENGTH OF DETENTION, E.
G., CHAMBERS V. FLORIDA, SUPRA; THE REPEATED AND PROLONGED NATURE OF
THE QUESTIONING, E. G., ASHCRAFT V. TENNESSEE, 322 U.S. 143; AND THE
USE OF PHYSICAL PUNISHMENT SUCH AS THE DEPRIVATION OF FOOD OR SLEEP, E.
G., RECK V. PATE, 367 U.S. 433.  /8/  IN ALL OF THESE CASES, THE COURT
DETERMINED THE FACTUAL CIRCUMSTANCES SURROUNDING THE CONFESSION,
ASSESSED THE PSYCHOLOGICAL IMPACT ON THE ACCUSED, AND EVALUATED THE
LEGAL SIGNIFICANCE OF HOW THE ACCUSED REACTED.  CULOMBE V. CONNECTICUT,
SUPRA, AT 603. 

THE SIGNIFICANT FACT ABOUT ALL OF THESE DECISIONS IS THAT NONE OF
THEM TURNED ON THE PRESENCE OR ABSENCE OF A SINGLE CONTROLLING
CRITERION; EACH REFLECTED A CAREFUL SCRUTINY OF ALL THE SURROUNDING
CIRCUMSTANCES.  SEE MIRANDA V. ARIZONA, 384 U.S. 436, 508 (HARLAN, J.,
DISSENTING); ID., AT 534 - 535 (WHITE, J., DISSENTING).  IN NONE OF
THEM DID THE COURT RULE THAT THE DUE PROCESS CLAUSE REQUIRED THE
PROSECUTION TO PROVE AS PART OF ITS INITIAL BURDEN THAT THE DEFENDANT
KNEW HE HAD A RIGHT TO REFUSE TO ANSWER THE QUESTIONS THAT WERE PUT. 
WHILE THE STATE OF THE ACCUSED'S MIND, AND THE FAILURE OF THE POLICE TO
ADVISE THE ACCUSED OF HIS RIGHTS, WERE CERTAINLY FACTORS TO BE
EVALUATED IN ASSESSING THE "VOLUNTARINESS" OF AN ACCUSED'S RESPONSES,
THEY WERE NOT IN AND OF THEMSELVES DETERMINATIVE.  SEE, E. G., DAVIS V.
NORTH CAROLINA, SUPRA; HAYNES V. WASHINGTON, SUPRA, AT 510 - 511;
CULOMBE V. CONNECTICUT, SUPRA, AT 610; TURNER V. PENNSYLVANIA, 338 U.S.
62, 64.              B 

SIMILAR CONSIDERATIONS LEAD US TO AGREE WITH THE COURTS OF
CALIFORNIA THAT THE QUESTION WHETHER A CONSENT TO A SEARCH WAS IN FACT
"VOLUNTARY" OR WAS THE PRODUCT OF DURESS OR COERCION, EXPRESS OR
IMPLIED, IS A QUESTION OF FACT TO BE DETERMINED FROM THE TOTALITY OF
ALL THE CIRCUMSTANCES.  WHILE KNOWLEDGE OF THE RIGHT TO REFUSE CONSENT
IS ONE FACTOR TO BE TAKEN INTO ACCOUNT, THE GOVERNMENT NEED NOT
ESTABLISH SUCH KNOWLEDGE AS THE SINE QUA NON OF AN EFFECTIVE CONSENT. 
AS WITH POLICE QUESTIONING, TWO COMPETING CONCERNS MUST BE ACCOMMODATED
IN DETERMINING THE MEANING OF A "VOLUNTARY" CONSENT-- THE LEGITIMATE
NEED FOR SUCH SEARCHES AND THE EQUALLY IMPORTANT REQUIREMENT OF
ASSURING THE ABSENCE OF COERCION. 

IN SITUATIONS WHERE THE POLICE HAVE SOME EVIDENCE OF ILLICIT
ACTIVITY, BUT LACK PROBABLE CAUSE TO ARREST OR SEARCH, A SEARCH
AUTHORIZED BY A VALID CONSENT MAY BE THE ONLY MEANS OF OBTAINING
IMPORTANT AND RELIABLE EVIDENCE.  /9/  IN THE PRESENT CASE FOR EXAMPLE,
WHILE THE POLICE HAD REASON TO STOP THE CAR FOR TRAFFIC VIOLATIONS, THE
STATE DOES NOT CONTEND THAT THERE WAS PROBABLE CAUSE TO SEARCH THE
VEHICLE OR THAT THE SEARCH WAS INCIDENT TO A VALID ARREST OF ANY OF THE
OCCUPANTS.  /10/  YET, THE SEARCH YIELDED TANGIBLE EVIDENCE THAT SERVED
AS A BASIS FOR A PROSECUTION, AND PROVIDED SOME ASSURANCE THAT OTHERS,
WHOLLY INNOCENT OF THE CRIME, WERE NOT MISTAKENLY BROUGHT TO TRIAL. 
AND IN THOSE CASES WHERE THERE IS PROBABLE CAUSE TO ARREST OR SEARCH,
BUT WHERE THE POLICE LACK A WARRANT, A CONSENT SEARCH MAY STILL BE
VALUABLE.  IF THE SEARCH IS CONDUCTED AND PROVES FRUITLESS, THAT IN
ITSELF MAY CONVICE THE POLICE THAT AN ARREST WITH ITS POSSIBLE STIGMA
AND EMBARRASSMENT IS UNNECESSARY, OR THAT A FAR MORE EXTENSIVE SEARCH
PURSUANT TO A WARRANT IS NOT JUSTIFIED.  IN SHORT, A SEARCH PURSUANT TO
CONSENT MAY RESULT IN CONSIDERABLY LESS INCONVENIENCE FOR THE SUBJECT
OF THE SEARCH, AND, PROPERLY CONDUCTED, IS A CONSTITUTIONALLY
PERMISSIBLE AND WHOLLY LEGITIMATE ASPECT OF EFFECTIVE POLICE ACTIVITY. 

BUT THE FOURTH AND FOURTEENTH AMENDMENTS REQUIRE THAT A CONSENT NOT
BE COERCED, BY EXPLICIT OR IMPLICIT MEANS, BY IMPLIED THREAT OR COVERT
FORCE.  FOR, NO MATTER HOW SUBTLY THE COERCION WERE APPLIED, THE
RESULTING "CONSENT" WOULD BE NO MORE THAN A PRETEXT FOR THE UNJUSTIFIED
POLICE INTRUSION AGAINST WHICH THE FOURTH AMENDMENT IS DIRECTED.  IN
THE WORDS OF THE CLASSIC ADMONITION ON BOYD V. UNITED STATES, 116 U.S.
616, 635: 

"IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS MILDEST AND LEAST
REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET
THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT APPROACHES AND
SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE.  THIS CAN ONLY BE
OBVIATED BY ADHERING TO THE RULE THAT CONSTITUTIONAL PROVISIONS FOR THE
SECURITY OF PERSON AND PROPERTY SHOULD BE LIBERALLY CONSTRUED.  A CLOSE
AND LITERAL CONSTRUCTION DEPRIVES THEM OF HALF THEIR EFFICACY, AND
LEADS TO GRADUAL DEPRECIATION OF THE RIGHT, AS IF IT CONSISTED MORE IN
SOUND THAN IN SUBSTANCE.  IT IS THE DUTY OF COURTS TO BE WATCHFUL FOR
THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST ANY STEALTHY
ENCROACHMENTS THEREON." 

THE PROBLEM OF RECONCILING THE RECOGNIZED LEGITIMACY OF CONSENT
SEARCHES WITH THE REQUIREMENT THAT THEY BE FREE FROM ANY ASPECT OF
OFFICIAL COERCION CANNOT BE RESOLVED BY AN INFALLIBLE TOUCHSTONE.  TO
APPROVE SUCH SEARCHES WITHOUT THE MOST CAREFUL SCRUTINY WOULD SANCTION
THE POSSIBILITY OF OFFICIAL COERCION; TO PLACE ARTIFICIAL RESTRICTIONS
UPON SUCH SEARCHES WOULD JEOPARDIZE THEIR BASIC VALIDITY.  JUST AS WAS
TRUE WITH CONFESSIONS, THE REQUIREMENT OF A "VOLUNTARY" CONSENT
REFLECTS A FAIR ACCOMMODATION OF THE CONSTITUTIONAL REQUIREMENTS
INVOLVED.  IN EXAMINING ALL THE SURROUNDING CIRCUMSTANCES TO DETERMINE
IF IN FACT THE CONSENT TO SEARCH WAS COERCED, ACCOUNT MUST BE TAKEN OF
SUBTLY COERCIVE POLICE QUESTIONS, AS WELL AS THE POSSIBLY VULNERABLE
SUBJECTIVE STATE OF THE PERSON WHO CONSENTS.  THOSE SEARCHES THAT ARE
THE PRODUCT OF POLICE COERCION CAN THUS BE FILTERED OUT WITHOUT
UNDERMINING THE CONTINUING VALIDITY OF CONSENT SEARCHES.  IN SUM, THERE
IS NO REASON FOR US TO DEPART IN THE AREA OF CONSENT SEARCHES, FROM THE
TRADITIONAL DEFINITION OF "VOLUNTARINESS." 

THE APPROACH OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT FINDS NO
SUPPORT IN ANY OF OUR DECISIONS THAT HAVE ATTEMPTED TO DEFINE THE
MEANING OF "VOLUNTARINESS."  ITS RULING, THAT THE STATE MUST
AFFIRMATIVELY PROVE THAT THE SUBJECT OF THE SEARCH KNEW THAT HE HAD A
RIGHT TO REFUSE CONSENT, WOULD, IN PRACTICE, CREATE SERIOUS DOUBT
WHETHER CONSENT SEARCHES COULD CONTINUE TO BE CONDUCTED.  THERE MIGHT
BE RARE CASES WHERE IT COULD BE PROVED FROM THE RECORD THAT A PERSON IN
FACT AFFIRMATIVELY KNEW OF HIS RIGHT TO REFUSE--SUCH AS A CASE WHERE HE
ANNOUNCED TO THE POLICE THAT IF HE DIDN'T SIGN THE CONSENT FORM, "YOU
(POLICE) ARE GOING TO GET A SEARCH WARRANT;"  /11/  OR A CASE WHERE BY
PRIOR EXPERIENCE AND TRAINING A PERSON HAD CLEARLY AND CONVINCINGLY
DEMONSTRATED SUCH KNOWLEDGE.  /12/  BUT MORE COMMONLY WHERE THERE WAS
NO EVIDENCE OF ANY COERCION, EXPLICIT OR IMPLICIT, THE PROSECUTION
WOULD NEVERTHELESS BE UNABLE TO DEMONSTRATE THAT THE SUBJECT OF THE
SEARCH IN FACT HAD KNOWN OF HIS RIGHT TO REFUSE CONSENT. 

THE VERY OBJECT OF THE INQUIRY--THE NATURE OF A PERSON'S SUBJECTIVE
UNDERSTANDING--UNDERLINES THE DIFFICULTY OF THE PROSECUTION'S BURDEN
UNDER THE RULE APPLIED BY THE COURT OF APPEALS IN THIS CASE.  ANY
DEFENDANT WHO WAS THE SUBJECT OF A SEARCH AUTHORIZED SOLELY BY HIS
CONSENT COULD EFFECTIVELY FRUSTRATE THE INTRODUCTION INTO EVIDENCE OF
THE FRUITS OF THAT SEARCH BY SIMPLY FAILING TO TESTIFY THAT HE IN FACT
KNEW HE COULD REFUSE TO CONSENT.  AND THE NEAR IMPOSSIBILITY OF MEETING
THIS PROSECUTORIAL BURDEN SUGGESTS WHY THIS COURT HAS NEVER ACCEPTED
ANY SUCH LITMUS-PAPER TEST OF VOLUNTARINESS.  IT IS INSTRUCTIVE TO
RECALL THE FEARS OF THEN JUSTICE TRAYNOR OF THE CALIFORNIA SUPREME
COURT: 

"(IT IS NOT UNREASONABLE FOR OFFICERS TO SEEK INTERVIEWS WITH
SUSPECTS OR WITNESSES OR TO CALL UPON THEM AT THEIR HOMES FOR SUCH
PURPOSES.  SUCH INQUIRIES, ALTHOUGH COURTEOUSLY MADE AND NOT
ACCOMPANIED WITH ANY ASSERTION OF A RIGHT TO ENTER OR SEARCH OR SECURE
ANSWERS, WOULD PERMIT THE CRIMINAL TO DEFEAT HIS PROSECUTION BY
VOLUNTARILY REVEALING ALL OF THE EVIDENCE AGAINST HIM AND THEN
CONTENDING THAT HE ACTED ONLY IN RESPONSE TO AN IMPLIED ASSERTION OF
UNLAWFUL AUTHORITY."  PEOPLE V. MICHAEL, 45 CAL. 2D, AT 754, 290 P. 2D,
AT 854. 

ONE ALTERNATIVE THAT WOULD GO FAR TOWARD PROVING THAT THE SUBJECT OF
A SEARCH DID KNOW HE HAD A RIGHT TO REFUSE CONSENT WOULD BE TO ADVISE
HIM OF THAT RIGHT BEFORE ELICITING HIS CONSENT.  THAT, HOWEVER, IS A
SUGGESTION THAT HAS BEEN ALMOST UNIVERSALLY REPUDIATED BY BOTH FEDERAL
/13/  AND STATE COURTS, /14/  AND, WE THINK, RIGHTLY SO.  FOR IT WOULD
BE THOROUGHLY IMPRACTICAL TO IMPOSE ON THE NORMAL CONSENT SEARCH THE
DETAILED REQUIREMENTS OF AN EFFECTIVE WARNING.  CONSENT SEARCHES ARE
PART OF THE STANDARD INVESTIGATORY TECHNIQUES OF LAW ENFORCEMENT
AGENCIES.  THEY NORMALLY OCCUR ON THE HIGHWAY, OR IN A PERSON'S HOME OR
OFFICE, AND UNDER INFORMAL AND UNSTRUCTURED CONDITIONS.  THE
CIRCUMSTANCES THAT PROMPT THE INITIAL REQUEST TO SEARCH MAY DEVELOP
QUICKLY OR BE A LOGICAL EXTENSION OF INVESTIGATIVE POLICE QUESTIONING. 
THE POLICE MAY SEEK TO INVESTIGATE FURTHER SUSPICIOUS CIRCUMSTANCES OR
TO FOLLOW UP LEADS DEVELOPED IN QUESTIONING PERSONS AT THE SCENE OF A
CRIME.  THESE SITUATIONS ARE A FAR CRY FROM THE STRUCTURED ATMOSPHERE
OF A TRIAL WHERE, ASSISTED BY COUNSEL IF HE CHOOSES, A DEFENDANT IS
INFORMED OF HIS TRIAL RIGHTS.  CF. BOYKIN V. ALABAMA, 395 U.S. 238,
243.  AND, WHILE SURELY A CLOSER QUESTION, THESE SITUATIONS ARE STILL
IMMEASURABLY FAR REMOVED FROM "CUSTODIAL INTERROGATION" WHERE, IN
MIRANDA V. ARIZONA, SUPRA, WE FOUND THAT THE CONSTITUTION REQUIRED
CERTAIN NOW FAMILIAR WARNINGS AS A PREREQUISITE TO POLICE
INTERROGATION.  INDEED, IN LANGUAGE APPLICABLE TO THE TYPICAL CONSENT
SEARCH, WE REFUSED TO EXTEND THE NEED FOR WARNINGS: 

"OUR DECISION IS NOT INTENDED TO HAMPER THE TRADITIONAL FUNCTION OF
POLICE OFFICERS IN INVESTIGATING CRIME.  . . . WHEN AN INDIVIDUAL IS IN
CUSTODY ON PROBABLE CAUSE, THE POLICE MAY, OF COURSE, SEEK OUT EVIDENCE
IN THE FIELD TO BE USED AT TRIAL AGAINST HIM.  SUCH INVESTIGATION MAY
INCLUDE INQUIRY OF PERSONS NOT UNDER RESTRAINT.  GENERAL ON-THE-SCENE
QUESTIONING AS TO FACTS SURROUNDING A CRIME OR OTHER GENERAL
QUESTIONING OF CITIZENS IN THE FACT-FINDING PROCESS IS NOT AFFECTED BY
OUR HOLDING.  IT IS AN ACT OF RESPONSIBLE CITIZENSHIP FOR INDIVIDUALS
TO GIVE WHATEVER INFORMATION THEY MAY HAVE TO AID IN LAW ENFORCEMENT." 
384 U.S., AT 477 - 478. 

CONSEQUENTLY, WE CANNOT ACCEPT THE POSITION OF THE COURT OF APPEALS
IN THIS CASE THAT PROOF OF KNOWLEDGE OF THE RIGHT TO REFUSE CONSENT IS
A NECESSARY PREREQUISITE TO DEMONSTRATING A "VOLUNTARY" CONSENT. 
RATHER, IT IS ONLY BY ANALYZING ALL THE CIRCUMSTANCES OF AN INDIVIDUAL
CONSENT THAT IT CAN BE ASCERTAINED WHETHER IN FACT IT WAS VOLUNTARY OR
COERCED.  IT IS THIS CAREFUL SIFTING OF THE UNIQUE FACTS AND
CIRCUMSTANCES OF EACH CASE THAT IS EVIDENCED IN OUR PRIOR DECISIONS
INVOLVING CONSENT SEARCHES. 

FOR EXAMPLE, IN DAVIS V. UNITED STATES, 328 U.S. 582, FEDERAL AGENTS
ENFORCING WARTIME GASOLINE-RATIONING REGULATIONS, ARRESTED A FILLING
STATION OPERATOR AND ASKED TO SEE HIS RATIONING COUPONS.  HE EVENTUALLY
UNLOCKED A ROOM WHERE THE AGENTS DISCOVERED THE COUPONS THAT FORMED THE
BASIS FOR HIS CONVICTION.  THE DISTRICT COURT FOUND THAT THE PETITIONER
HAD CONSENTED TO THE SEARCH--THAT ALTHOUGH HE HAD AT FIRST REFUSED TO
TURN THE COUPONS OVER, HE HAD SOON BEEN PERSUADED TO DO SO AND THAT
FORCE OR THREAT OF FORCE HAD NOT BEEN EMPLOYED TO PERSUADE HIM. 
CONCLUDING THAT IT COULD NOT BE SAID THAT THIS FINDING WAS ERRONEOUS,
THIS COURT, IN AN OPINION BY MR. JUSTICE DOUGLAS THAT LOOKED TO ALL THE
CIRCUMSTANCES SURROUNDING THE CONSENT, AFFIRMED THE JUDGMENT OF
CONVICTION:  "THE PUBLIC CHARACTER OF THE PROPERTY, THE FACT THAT THE
DEMAND WAS MADE DURING BUSINESS HOURS AT THE PLACE OF BUSINESS WHERE
THE COUPONS WERE REQUIRED TO BE KEPT, THE EXISTENCE OF THE RIGHT TO
INSPECT, THE NATURE OF THE REQUEST, THE FACT THAT THE INITIAL REFUSAL
TO TURN THE COUPONS OVER WAS SOON FOLLOWED BY ACQUIESENCE IN THE DEMAND
-THESE CIRCUMSTANCES ALL SUPPORT THE CONCLUSION OF THE DISTRICT
COURT."  ID., AT 593 - 594.  SEE ALSO ZAP V. UNITED STATES, 328 U.S.
624. 

CONVERSELY, IF UNDER ALL THE CIRCUMSTANCES IT HAS APPEARED THAT THE
CONSENT WAS NOT GIVEN VOLUNTARILY--THAT IT WAS COERCED BY THREATS OR
FORCE, OR GRANTED ONLY IN SUBMISSION TO A CLAIM OF LAWFUL AUTHORITY-
THEN WE HAVE FOUND THE CONSENT INVALID AND THE SEARCH UNREASONABLE. 
SEE, E. G., BUMPER V. NORTH CAROLINA, 391 U.S., AT 548 - 549; JOHNSON
V. UNITED STATES, 333 U.S. 10; AMOS V. UNITED STATES, 255 U.S. 313.  IN
BUMPER, A 66-YEAR-OLD NEGRO WIDOW, WHO LIVED IN A HOUSE LOCATED IN A
RURAL AREA AT THE END OF AN ISOLATED MILE-LONG DIRT ROAD, ALLOWED FOUR
WHITE LAW ENFORCEMENT OFFICIALS TO SEARCH HER HOME AFTER THEY ASSERTED
THEY HAD A WARRANT TO SEARCH THE HOUSE.  WE HELD THE ALLEGED CONSENT TO
BE INVALID, NOTING THAT "(WHEN A LAW ENFORCEMENT OFFICER CLAIMS
AUTHORITY TO SEARCH A HOME UNDER A WARRANT, HE ANNOUNCES IN EFFECT THAT
THE OCCUPANT HAS NO RIGHT TO RESIST THE SEARCH.  THE SITUATION IS
INSTINCT WITH COERCION--ALBEIT COLORABLY LAWFUL COERCION.  WHERE THERE
IS COERCION THERE CANNOT BE CONSENT."  391 U.S., AT 550. 

IMPLICIT IN ALL OF THESE CASES IS THE RECOGNITION THAT KNOWLEDGE OF
A RIGHT TO REFUSE IS NOT A PREREQUISITE OF A VOLUNTARY CONSENT.  IF THE
PROSECUTION WERE REQUIRED TO DEMONSTRATE SUCH KNOWLEDGE, DAVIS AND ZAP
COULD NOT HAVE FOUND CONSENT WITHOUT EVIDENCE OF THAT KNOWLEDGE.  AND
SIMILARLY IF THE FAILURE TO PROVE SUCH KNOWLEDGE WERE SUFFICIENT TO
SHOW AN INEFFECTIVE CONSENT, THE AMOS, JOHNSON, AND BUMPER OPINIONS
WOULD SURELY HAVE FOCUSED UPON THE SUBJECTIVE MENTAL STATE OF THE
PERSON WHO CONSENTED.  YET THEY DID NOT. 

IN SHORT, NEITHER THIS COURT'S PRIOR CASES, NOR THE TRADITIONAL
DEFINITION OF "VOLUNTARINESS" REQUIRES PROOF OF KNOWLEDGE OF A RIGHT TO
REFUSE AS THE SINE QUA NON OF AN EFFECTIVE CONSENT TO A SEARCH.  /15/

      C 

IT IS SAID, HOWEVER, THAT A "CONSENT" IS A "WAIVER" OF A PERSON'S
RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS.  THE ARGUMENT IS
THAT BY ALLOWING THE POLICE TO CONDUCT A SEARCH, A PERSON "WAIVES"
WHATEVER RIGHT HE HAD TO PREVENT THE POLICE FROM SEARCHING.  IT IS
ARGUED THAT UNDER THE DOCTRINE OF JOHNSON V. ZERBST, 304 U.S. 458, 464,
TO ESTABLISH SUCH A "WAIVER" THE STATE MUST DEMONSTRATE "AN INTENTIONAL
RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE." 

BUT THESE STANDARDS WERE ENUNCIATED IN JOHNSON IN THE CONTEXT OF THE
SAFEGUARDS OF A FAIR CRIMINAL TRIAL.  OUR CASES DO NOT REFLECT AN
UNCRITICAL DEMAND FOR A KNOWING AND INTELLIGENT WAIVER IN EVERY
SITUATION WHERE A PERSON HAS FAILED TO INVOKE A CONSTITUTIONAL
PROTECTION.  AS MR. JUSTICE BLACK ONCE OBSERVED FOR THE COURT:
"'WAIVER' IS A VAGUE TERM USED FOR A GREAT VARIETY OF PURPOSES, GOOD
AND BAD, IN THE LAW."  GREEN V. UNITED STATES, 355 U.S. 184, 191.  WITH
RESPECT TO PROCEDURAL DUE PROCESS, FOR EXAMPLE, THE COURT HAS
ACKNOWLEDGED THAT WAIVER IS POSSIBLE, WHILE EXPLICTLY LEAVING OPEN THE
QUESTION WHETHER A "KNOWING AND INTELLIGENT" WAIVER NEED BE SHOWN. 
/16/  SEE D. H. OVERMYER CO. V. FRICK CO., 405 U.S. 174, 185 - 186;
FUENTES V. SHEVIN, 407 U.S. 67, 94 - 96.  /17/     THE REQUIREMENT OF A
"KNOWING" AND "INTELLIGENT" WAIVER WAS ARTICULATED IN A CASE INVOLVING
THE VALIDITY OF A DEFENDANT'S DECISION TO FORGO A RIGHT
CONSTITUTIONALLY GUARANTEED TO PROTECT A FAIR TRIAL AND THE RELIABILITY
OF THE TRUTH-DETERMINING PROCESS.  JOHNSON V. ZERBST, SUPRA, DEALT WITH
THE DENIAL OF COUNSEL IN A FEDERAL CRIMINAL TRIAL.  THERE THE COURT
HELD THAT UNDER THE SIXTH AMENDMENT A CRIMINAL DEFENDANT IS ENTITLED TO
THE ASSISTANCE OF COUNSEL, AND THAT IF HE LACKS SUFFICIENT FUNDS TO
RETAIN COUNSEL, IT IS THE GOVERNMENT'S OBLIGATION TO FURNISH HIM WITH A
LAWYER.  AS MR. JUSTICE BLACK WROTE FOR THE COURT:  "THE SIXTH
AMENDMENT STANDS AS A CONSTANT ADMONITION THAT IF THE CONSTITUTIONAL
SAFEGUARDS IT PROVIDES BE LOST, JUSTICE WILL NOT 'STILL BE DONE.'  IT
EMBODIES A REALISTIC RECOGNITION OF THE OBVIOUS TRUTH THAT THE AVERAGE
DEFENDANT DOES NOT HAVE THE PROFESSIONAL LEGAL SKILL TO PROTECT HIMSELF
WHEN BROUGHT BEFORE A TRIBUNAL WITH POWER TO TAKE HIS LIFE OR LIBERTY,
WHEREIN THE PROSECUTION IS PRESENTED BY EXPERIENCED AND LEARNED
COUNSEL.  THAT WHICH IS SIMPLE, ORDERLY AND NECESSARY TO THE LAWYER, TO
THE UNTRAINED LAYMAN MAY APPEAR INTRICATE, COMPLEX AND MYSTERIOUS." 
ID., AT 462 - 463 (FOOTNOTE OMITTED).  TO PRESERVE THE FAIRNESS OF THE
TRIAL PROCESS THE COURT ESTABLISHED AN APPROPRIATELY HEAVY BURDEN ON
THE GOVERNMENT BEFORE WAIVER COULD BE FOUND--"AN INTENTIONAL
RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE."  ID., AT
464. 

ALMOST WITHOUT EXCEPTION, THE REQUIREMENT OF A KNOWING AND
INTELLIGENT WAIVER HAS BEEN APPLIED ONLY TO THOSE RIGHTS WHICH THE
CONSTITUTION GUARANTEES TO A CRIMINAL DEFENDANT IN ORDER TO PRESERVE A
FAIR TRIAL.  /18/  HENCE, AND HARDLY SURPRISINGLY IN VIEW OF THE FACTS
OF JOHNSON ITSELF, THE STANDARD OF A KNOWING AND INTELLIGENT WAIVER HAS
MOST OFTEN BEEN APPLIED TO TEST THE VALIDITY OF A WAIVER OF COUNSEL,
EITHER AT TRIAL, /19/ OR UPON A GUILTY PLEA.  /20/  AND THE COURT HAS
ALSO APPLIED THE JOHNSON CRITERIA TO ASSESS THE EFFECTIVENESS OF A
WAIVER OF OTHER TRIAL RIGHTS SUCH AS THE RIGHT TO CONFRONTATION, /21/
TO A JURY TRIAL, /22/  AND TO A SPEEDY TRIAL, /23/  AND THE RIGHT TO BE
FREE FROM TWICE BEING PUT IN JEOPARDY.  /24/  GUILTY PLEAS HAVE BEEN
CAREFULLY SCRUTINIZED TO DETERMINE WHETHER THE ACCUSED KNEW AND
UNDERSTOOD ALL THE RIGHTS TO WHICH HE WOULD BE ENTITLED AT TRIAL, AND
THAT HE HAD INTENTIONALLY CHOSEN TO FORGO THEM.  /25/  AND THE COURT
HAS EVALUATED THE KNOWING AND INTELLIGENT NATURE OF THE WAIVER OF TRIAL
RIGHTS IN TRIAL-TYPE SITUATIONS, SUCH AS THE WAIVER OF THE PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION BEFORE AN ADMINISTRATIVE AGENCY
/26/  OR A CONGRESSIONAL COMMITTEE, /27/  OR THE WAIVER OF COUNSEL IN A
JUVENILE PROCEEDING.  /28/ 

THE GUARANTEES AFFORDED A CRIMINAL DEFENDANT AT TRIAL ALSO PROTECT
HIM AT CERTAIN STAGES BEFORE THE ACTUAL TRIAL, AND ANY ALLEGED WAIVER
MUST MEET THE STRICT STANDARD OF AN INTENTIONAL RELINQUISHMENT OF A
"KNOWN" RIGHT.  BUT THE "TRIAL" GUARANTEES THAT HAVE BEEN APPLIED TO
THE "PRE-TRIAL" STAGE OF THE CRIMINAL PROCESS ARE SIMILARLY DESIGNED TO
PROTECT THE FAIRNESS OF THE TRIAL ITSELF. 

HENCE, IN UNITED STATES V. WADE, 388 U.S. 218, AND GILBERT V.
CALIFORNIA, 388 U.S. 263, THE COURT HELD "THAT A POST-INDICTMENT
PRETRIAL LINEUP AT WHICH THE ACCUSED IS EXHIBITED TO IDENTIFYING
WITNESSES IS A CRITICAL STAGE OF THE CRIMINAL PROSECUTION; THAT POLICE
CONDUCT OF SUCH A LINEUP WITHOUT NOTICE TO AND IN THE ABSENCE OF HIS
COUNSEL DENIES THE ACCUSED HIS SIXTH (AND FOURTEENTH) AMENDMENT RIGHT
TO COUNSEL . . . ."  ID., AT 272.  ACCORDINGLY, THE COURT INDICATED
THAT THE STANDARD OF A KNOWING AND INTELLIGENT WAIVER MUST BE APPLIED
TO TEST THE WAIVER OF COUNSEL AT SUCH A LINEUP.  SEE UNITED STATES V.
WADE, SUPRA, AT 237.  THE COURT STRESSED THE NECESSARY
INTERRELATIONSHIP BETWEEN THE PRESENCE OF COUNSEL AT A POST-INDICTMENT
LINEUP BEFORE TRIAL AND THE PROTECTION OF THE TRIAL PROCESS ITSELF: 

"INSOFAR AS THE ACCUSED'S CONVICTION MAY REST ON A COURTROOM
IDENTIFICATION IN FACT THE FRUIT OF A SUSPECT PRETRIAL IDENTIFICATION
WHICH THE ACCUSED IS HELPLESS TO SUBJECT TO EFFECTIVE SCRUTINY AT
TRIAL, THE ACCUSED IS DEPRIVED OF THAT RIGHT OF CROSS-EXAMINATION WHICH
IS AN ESSENTIAL SAFEGUARD TO HIS RIGHT TO CONFRONT THE WITNESSES
AGAINST HIM.  POINTER V. TEXAS, 380 U.S. 500.  AND EVEN THOUGH CROSS
EXAMINATION IS A PRECIOUS SAFEGUARD TO A FAIR TRIAL, IT CANNOT BE
VIEWED AS AN ABSOLUTE ASSURANCE OF ACCURACY AND RELIABILITY.  THUS IN
THE PRESENT CONTEXT, WHERE SO MANY VARIABLES AND PITFALLS EXIST, THE
FIRST LINE OF DEFENSE MUST BE THE PREVENTION OF UNFAIRNESS AND THE
LESSENING OF THE HAZARDS OF EYEWITNESS IDENTIFICATION AT THE LINEUP
ITSELF.  THE TRIAL WHICH MIGHT DETERMINE THE ACCUSED'S FATE MAY WELL
NOT BE THAT IN THE COURTROOM BUT THAT AT THE PRETRIAL CONFRONTATION,
WITH THE STATE ALIGNED AGAINST THE ACCUSED, THE WITNESS THE SOLE JURY,
AND THE ACCUSED UNPROTECTED AGAINST THE OVERREACHING, INTENTIONAL OR
UNINTENTIONAL, AND WITH LITTLE OR NO EFFECTIVE APPEAL FROM THE JUDGMENT
THERE RENDERED BY THE WITNESS--'THAT'S THE MAN.'"  ID., AT 235 - 236. 

AND IN MIRANDA V. ARIZONA, 384 U.S. 436, THE COURT FOUND THAT
CUSTODIAL INTERROGATION BY THE POLICE WAS INHERENTLY COERCIVE, AND
CONSEQUENTLY HELD THAT DETAILED WARNINGS WERE REQUIRED TO PROTECT THE
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION.  THE COURT MADE IT
CLEAR THAT THE BASIS FOR DECISION WAS THE NEED TO PROTECT THE FAIRNESS
OF THE TRIAL ITSELF. 

"THAT COUNSEL IS PRESENT WHEN STATEMENTS ARE TAKEN FROM AN
INDIVIDUAL DURING INTERROGATION OBVIOUSLY ENHANCES THE INTEGRITY OF THE
FACT-FINDING PROCESSES IN COURT.  THE PRESENCE OF AN ATTORNEY, AND THE
WARNINGS DELIVERED TO THE INDIVIDUAL, ENABLE THE DEFENDANT UNDER
OTHERWISE COMPELLING CIRCUMSTANCES TO TELL HIS STORY WITHOUT FEAR,
EFFECTIVELY, AND IN A WAY THAT ELIMINATES THE EVILS IN THE
INTERROGATION PROCESS.  WITHOUT THE PROTECTIONS FLOWING FROM ADEQUATE
WARNINGS AND THE RIGHTS OF COUNSEL, 'ALL THE CAREFUL SAFEGUARDS ERECTED
AROUND THE GIVING OF TESTIMONY, WHETHER BY AN ACCUSED OR ANY OTHER
WITNESS, WOULD BECOME EMPTY FORMALITIES IN A PROCEDURE WHERE THE MOST
COMPELLING POSSIBLE EVIDENCE OF GUILT, A CONFESSION, WOULD HAVE ALREADY
BEEN OBTAINED AT THE UNSUPERVISED PLEASURE OF THE POLICE.'"  ID., AT
466. 

THE STANDARDS OF JOHNSON WERE, THEREFORE, FOUND TO BE A NECESSARY
PREREQUISITE TO A FINDING OF A VALID WAIVER.  SEE 384 U.S., AT 475 -
479.  CF. ESCOBEDO V. ILLINOIS, 378 U.S., AT 490 N. 14.  /29/ 

THERE IS A VAST DIFFERENCE BETWEEN THOSE RIGHTS THAT PROTECT A FAIR
CRIMINAL TRIAL AND THE RIGHTS GUARANTEED UNDER THE FOURTH AMENDMENT. 
NOTHING, EITHER IN THE PURPOSES BEHIND REQUIRING A "KNOWING" AND
"INTELLIGENT" WAIVER OF TRIAL RIGHTS, OR IN THE PRACTICAL APPLICATION
OF SUCH A REQUIREMENT SUGGESTS THAT IT OUGHT TO BE EXTENDED TO THE
CONSTITUTIONAL GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES. 

A STRICT STANDARD OF WAIVER HAS BEEN APPLIED TO THOSE RIGHTS
GUARANTEED TO A CRIMINAL DEFENDANT TO INSURE THAT HE WILL BE ACCORDED
THE GREATEST POSSIBLE OPPORTUNITY TO UTILIZE EVERY FACET OF THE
CONSTITUTIONAL MODEL OF A FAIR CRIMINAL TRIAL.  ANY TRIAL CONDUCTED IN
DEROGATION OF THAT MODEL LEAVES OPEN THE POSSIBILITY THAT THE TRIAL
REACHED AN UNFAIR RESULT PRECISELY BECAUSE ALL THE PROTECTIONS
SPECIFIED IN THE CONSTITUTION WERE NOT PROVIDED.  A PRIME EXAMPLE IS
THE RIGHT TO COUNSEL.  FOR WITHOUT THAT RIGHT, A WHOLLY INNOCENT
ACCUSED FACES THE REAL AND SUBSTANTIAL DANGER THAT SIMPLY BECAUSE OF
HIS LACK OF LEGAL EXPERTISE HE MAY BE CONVICTED.  AS MR. JUSTICE HARLAN
ONCE WROTE:  "THE SOUND REASON WHY (THE RIGHT TO COUNSEL) IS SO FREELY
EXTENDED FOR A CRIMINAL TRIAL IS THE SEVERE INJUSTICE RISKED BY
CONFRONTING AN UNTRAINED DEFENDANT WITH A RANGE OF TECHNICAL POINTS OF
LAW, EVIDENCE, AND TACTICS FAMILIAR TO THE PROSECUTOR BUT NOT TO
HIMSELF."  MIRANDA V. ARIZONA, SUPRA, AT 514 (DISSENTING OPINION).  THE
CONSTITUTION REQUIRES THAT EVERY EFFORT BE MADE TO SEE TO IT THAT A
DEFENDANT IN A CRIMINAL CAUSE HAS NOT UNKNOWINGLY RELINQUISHED THE
BASIC PROTECTIONS THAT THE FRAMERS THOUGHT INDISPENSABLE TO A FAIR
TRIAL.  /30/ 

THE PROTECTIONS OF THE FOURTH AMENDMENT ARE OF A WHOLLY DIFFERENT
ORDER, AND HAVE NOTHING WHATEVER TO DO WITH PROMOTING THE FAIR
ASCERTAINMENT OF TRUTH AT A CRIMINAL TRIAL.  RATHER, AS MR. JUSTICE
FRANKFURTER'S OPINION FOR THE COURT PUT IT IN WOLF V. COLORADO, 338
U.S. 25, 27, THE FOURTH AMENDMENT PROTECTS THE "SECURITY OF ONE'S
PRIVACY AGAINST ARBITRARY INTRUSION BY THE POLICE . . . ."  IN
DECLINING TO APPLY THE EXCLUSIONARY RULE OF MAPP V. OHIO, 367 U.S. 643,
TO CONVICTIONS THAT HAD BECOME FINAL BEFORE RENDITION OF THAT DECISION,
THE RELIABILITY OR COERCION PRESENT IN A SEARCH-AND-SEIZURE CASE,"
LINKLETTER V. WALKER, 381 U.S. 618, 638.  IN LINKLETTER, THE COURT
INDICATED THAT THOSE CASES THAT HAD BEEN GIVEN RETROACTIVE EFFECT WENT
TO "THE FAIRNESS OF THE TRIAL--THE VERY INTEGRITY OF THE FACT-FINDING
PROCESS.  HERE . . . THE FAIRNESS OF THE TRIAL IS NOT UNDER ATTACK." 
ID., AT 639.  THE FOURTH AMENDMENT "IS NOT AN ADJUNCT TO THE
ASCERTAINMENT OF TRUTH."  THE GUARANTEES OF THE FOURTH AMENDMENT STAND
"AS A PROTECTION OF QUITE DIFFERENT CONSTITUTIONAL VALUES--VALUES
REFLECTING THE CONCERN OF OUR SOCIETY FOR THE RIGHT OF EACH INDIVIDUAL
TO BE LET ALONE.  TO RECOGNIZE THIS IS NO MORE THAN TO ACCORD THOSE
VALUES UNDILUTED RESPECT."  TEHNAN V. UNITED STATES EX REL. SHOTT, 382
U.S. 406, 416. 

NOR CAN IT EVEN BE SAID THAT A SEARCH, AS OPPOSED TO AN EVENTUAL
TRIAL, IS SOMEHOW "UNFAIR" IF A PERSON CONSENTS TO A SEARCH.  WHILE THE
FOURTH AND FOURTEENTH AMENDMENTS LIMIT THE CIRCUMSTANCES UNDER WHICH
THE POLICE CAN CONDUCT A SEARCH, THERE IS NOTHING CONSTITUTIONALLY
SUSPECT IN A PERSON'S VOLUNTARILY ALLOWING A SEARCH.  THE ACTUAL
CONDUCT OF THE SEARCH MAY BE PRECISELY THE SAME AS IF THE POLICE HAD
OBTAINED A WARRANT.  AND, UNLIKE THOSE CONSTITUTIONAL GUARANTEES THAT
PROTECT A DEFENDANT AT TRIAL, IT CANNOT BE SAID EVERY REASONABLE
PRESUMPTION OUGHT TO BE INDULGED AGAINST VOLUNTARY RELINQUISHMENT.  WE
HAVE ONLY RECENTLY STATED:  "(IT IS NO PART OF THE POLICY UNDERLYING
THE FOURTH AND FOURTEENTH AMENDMENTS TO DISCOURAGE CITIZENS FROM AIDING
TO THE UTMOST OF THEIR ABILITY IN THE APPREHENSION OF CRIMINALS." 
COOLIDGE V. NEW HAMPSHIRE, 403 U.S., AT 488.  RATHER, THE COMMUNITY HAS
A REAL INTEREST IN ENCOURAGING CONSENT, FOR THE RESULTING SEARCH MAY
YIELD NECESSARY EVIDENCE FOR THE SOLUTION AND PROSECUTION OF CRIME,
EVIDENCE THAT MAY INSURE THAT A WHOLLY INNOCENT PERSON IS NOT WRONGLY
CHARGED WITH A CRIMINAL OFFENSE. 

THOSE CASES THAT HAVE DEALT WITH THE APPLICATION OF THE JOHNSON V.
ZERBST RULE MAKE CLEAR THAT IT WOULD BE NEXT TO IMPOSSIBLE TO APPLY TO
A CONSENT SEARCH THE STANDARD OF "AN INTENTIONAL RELINQUISHMENT OR
ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE."  /31/  TO BE TRUE TO
JOHNSON AND ITS PROGENY, THERE MUST BE EXAMINATION INTO THE KNOWING AND
UNDERSTANDING NATURE OF THE WAIVER, AN EXAMINATION THAT WAS DESIGNED
FOR A TRIAL JUDGE IN THE STRUCTURED ATMOSPHERE OF A COURTROOM.  AS THE
COURT EXPRESSED IT IN JOHNSON: 

     "THE CONSTITUTIONAL RIGHT OF AN ACCUSED TO BE PRESENTED BY

  COUNSEL INVOKES, OF ITSELF, THE PROTECTION OF A TRIAL COURT, IN

  WHICH THE ACCUSED--WHOSE LIFE OR LIBERTY IS AT STAKE--IS WITHOUT

  COUNSEL.  THIS PROTECTING DURY IMPOSES THE SERIOUS AND WEIGHTY

  RESPONSIBILITY UPON THE TRIAL JUDGE OF DETERMINING WHETHER THERE

  IS AN INTELLIGENT AND COMPETENT WAIVER BY THE ACCUSED.  WHILE AN

  ACCUSED MAY WAIVE THE RIGHT TO COUNSEL, WHETHER THERE IS A PROPER

  WAIVER SHOULD BE CLEARLY DETERMINED BY THE TRIAL COURT, AND IT

  WOULD BE FITTING AND APPROPRIATE FOR THAT DETERMINATION TO APPEAR

  UPON THE RECORD."  304 U.S., AT 465.  /32/

IT WOULD BE UNREALISTIC TO EXPECT THAT IN THE INFORMAL, UNSTRUCTURED
CONTEXT OF A CONSENT SEARCH, A POLICEMEN, UPON PAIN OF TAINTING THE
EVIDENCE OBTAINED, COULD MAKE THE DETAILED TYPE OF EXAMINATION DEMANDED
BY JOHNSON.  AND, IF FOR THIS REASON A DILUTED FORM OF "WAIVER" WERE
FOUND ACCEPTABLE, THAT WOULD ITSELF BE AMPLE RECOGNITION OF THE FACT
THAT THERE IS NO UNIVERSAL STANDARD THAT MUST BE APPLIED IN EVERY
SITUATION WHERE A PERSON FORGOES A CONSTITUTIONAL RIGHT.  /33/ 

SIMILARLY, A "WAIVER" APPROACH TO CONSENT SEARCHES WOULD BE
THOROUGHLY INCONSISTENT WITH OUR DECISIONS THAT HAVE APPROVED "THIRD
PARTY CONSENTS."  IN COOLIDGE V. NEW HAMPSHIRE, 403 U.S., AT 487 - 490,
WHERE A WIFE SURRENDERED TO THE POLICE GUNS AND CLOTHING BELONGING TO
HER HUSBAND, WE FOUND NOTHING CONSTITUTIONALLY IMPERMISSIBLE IN THE
ADMISSION OF THAT EVIDENCE AT TRIAL SINCE THE WIFE HAD NOT BEEN
COERCED.  FRAZIER V. CUPP, 394 U.S. 731, 740, HELD THAT EVIDENCE SEIZED
FROM THE DEFENDANT'S DUFFEL BAG IN A SEARCH AUTHORIZED BY HIS COUSIN'S
CONSENT WAS ADMISSIBLE AT TRIAL.  WE FOUND THAT THE DEFENDANT HAS
ASSUMED THE RISK THAT HIS COUSIN, WITH WHOM HE SHARED THE BAG, WOULD
ALLOW THE POLICE TO SEARCH IT.  SEE ALSO ABEL V. UNITED STATES, 362
U.S. 217.  AND IN HILL V. CALIFORNIA, 401 U.S. 797, 802 - 805, WE HELD
THAT THE POLICE HAD VALIDLY SEIZED EVIDENCE FROM THE PETITIONER'S
APARTMENT INCIDENT TO THE ARREST OF A THIRD PARTY, SINCE THE POLICE HAD
PROBABLE CAUSE TO ARREST THE PETITIONER AND REASONABLY, THOUGH
MISTAKENLY, BELIEVED THE MAN THEY HAD ARRESTED WAS HE.  YET IT IS
INCONCEIVABLE THAT THE CONSTITUTION COULD COUNTENANCE THE WAIVER OF A
DEFENDANT'S RIGHT TO COUNSEL BY A THIRD PARTY, OR THAT A WAIVER COULD
BE FOUND BECAUSE A TRIAL JUDGE REASONABLY, THOUGH MISTAKENLY, BELIEVED
A DEFENDANT HAD WAIVED HIS RIGHT TO PLEAD NOT GUILTY.  /34/ 

IN SHORT, THERE IS NOTHING IN THE PURPOSES OR APPLICATION OF THE
WAIVER REQUIREMENTS OF JOHNSON V. ZERBST THAT JUSTIFIES, MUCH LESS
COMPELS, THE EASY EQUATION OF A KNOWING WAIVER WITH A CONSENT SEARCH. 
TO MAKE SUCH AN EQUATION IS TO GENERALIZE FROM THE BROAD RHETORIC OF
SOME OF OUR DECISIONS, AND TO IGNORE THE SUBSTANCE OF THE DIFFERING
CONSTITUTIONAL GUARANTEES.  WE DECLINE TO FOLLOW WHAT ONE JUDICIAL
SCHOLAR HAS TERMED "THE DOMINO METHOD OF CONSTITUTIONAL ADJUDICATION .
. . WHEREIN EVERY EXPLANATORY STATEMENT IN A PREVIOUS OPINION IS MADE
THE BASIS FOR EXTENSION TO A WHOLLY DIFFERENT SITUATION."  /35/
D 

MUCH OF WHAT HAS ALREADY BEEN SAID DISPOSES OF THE ARGUMENT THAT THE
COURT'S DECISION IN THE MIRANDA CASE REQUIRES THE CONCLUSION THAT
KNOWLEDGE OF A RIGHT TO REFUSE IS AN INDISPENSABLE ELEMENT OF A VALID
CONSENT.  THE CONSIDERATIONS THAT INFORMED THE COURT'S HOLDING IN
MIRANDA ARE SIMPLY INAPPLICABLE IN THE PRESENT CASE.  IN MIRANDA THE
COURT FOUND THAT THE TECHNIQUES OF POLICE QUESTIONING AND THE NATURE OF
CUSTODIAL SURROUNDINGS PRODUCE AN INHERENTLY COERCIVE SITUATION.  THE
COURT CONCLUDED THAT "(UNLESS ADEQUATE PROTECTIVE DEVICES ARE EMPLOYED
TO DISPEL THE COMPULSION INHERENT IN CUSTODIAL SURROUNDINGS, NO
STATEMENT OBTAINED FROM THE DEFENDANT CAN TRULY BE THE PRODUCT OF HIS
FREE CHOICE."  384 U.S., AT 458.  AND AT ANOTHER POINT THE COURT NOTED
THAT "WITHOUT PROPER SAFEGUARDS THE PROCESS OF IN-CUSTODY INTERROGATION
OF PERSONS SUSPECTED OR ACCUSED OF CRIME CONTAINS INHERENTLY COMPELLING
PRESSURES WHICH WORK TO UNDERMINE THE INDIVIDUAL'S WILL TO RESIST AND
TO COMPEL HIM TO SPEAK WHERE HE WOULD NOT OTHERWISE DO SO FREELY." 
ID., AT 467. 

IN THIS CASE, THERE IS NO EVIDENCE OF ANY INHERENTLY COERCIVE
TACTICS--EITHER FROM THE NATURE OF THE POLICE QUESTIONING OR THE
ENVIRONMENT IN WHICH IT TOOK PLACE.  INDEED, SINCE CONSENT SEARCHES
WILL NORMALLY OCCUR ON A PERSON'S OWN FAMILIAR TERRITORY, THE SPECTER
OF INCOMMUNICADO POLICE INTERROGATION IN SOME REMOTE STATION HOUSE IS
SIMPLY INAPPOSITE.  /36/  THERE IS NO REASON TO BELIEVE, UNDER
CIRCUMSTANCES SUCH AS ARE PRESENT HERE, THAT THE RESPONSE TO A
POLICEMAN'S QUESTION IS PRESUMPTIVELY COERCED; AND THERE IS, THEREFORE,
NO REASON TO REJECT THE TRADITIONAL TEST FOR DETERMINING THE
VOLUNTARINESS OF A PERSON'S RESPONSE.  MIRANDA, OF COURSE, DID NOT
REACH INVESTIGATIVE QUESTIONING OF A PERSON NOT IN CUSTODY, WHICH IS
MOST DIRECTLY ANALOGOUS TO THE SITUATION OF A CONSENT SEARCH, AND IT
ASSUREDLY DID NOT INDICATE THAT SUCH QUESTIONING OUGHT TO BE DEEMED
INHERENTLY COERCIVE.  SEE SUPRA, AT 232. 

IT IS ALSO ARGUED THAT THE FAILURE TO REQUIRE THE GOVERNMENT TO
ESTABLISH KNOWLEDGE AS A PREREQUISITE TO A VALID CONSENT, WILL RELEGATE
THE FOURTH AMENDMENT TO THE SPECIAL PROVINCE OF "THE SOPHISTICATED, THE
KNOWLEDGEABLE AND THE PRIVILEGED."  WE CANNOT AGREE.  THE TRADITIONAL
DEFINITION OF VOLUNTARINESS WE ACCEPT TODAY HAS ALWAYS TAKEN INTO
ACCOUNT EVIDENCE OF MINIMAL SCHOOLING, LOW INTELLIGENCE, AND THE LACK
OF ANY EFFECTIVE WARNINGS TO A PERSON OF HIS RIGHTS; AND THE
VOLUNTARINESS OF ANY STATEMENT TAKEN UNDER THOSE CONDITIONS HAS BEEN
CAREFULLY SCRUTINIZED TO DETERMINE WHETHER IT WAS IN FACT VOLUNTARILY
GIVEN.  /37/

        E 

OUR DECISION TODAY IS A NARROW ONE.  WE HOLD ONLY THAT WHEN THE
SUBJECT OF A SEARCH IS NOT IN CUSTODY AND THE STATE ATTEMPTS TO JUSTIFY
A SEARCH ON THE BASIS OF HIS CONSENT, THE FOURTH AND FOURTEENTH
AMENDMENTS REQUIRE THAT IT DEMONSTRATE THAT THE CONSENT WAS IN FACT
VOLUNTARILY GIVEN, AND NOT THE RESULT OF DURESS OR COERCION, EXPRESS OR
IMPLIED.  VOLUNTARINESS IS A QUESTION OF FACT TO BE DETERMINED FROM ALL
THE CIRCUMSTANCES, AND WHILE THE SUBJECT'S KNOWLEDGE OF A RIGHT TO
REFUSE IS A FACTOR TO BE TAKEN INTO ACCOUNT, THE PROSECUTION IS NOT
REQUIRED TO DEMONSTRATE SUCH KNOWLEDGE AS A PREREQUISITE TO
ESTABLISHING A VOLUNTARY CONSENT.  /38/  BECAUSE THE CALIFORNIA COURTS
FOLLOWED THESE PRINCIPLES IN AFFIRMING THE RESPONDENT'S CONVICTION, AND
BECAUSE THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN REMANDING FOR AN
EVIDENTIARY HEARING REQUIRED MORE, ITS JUDGMENT MUST BE REVERSED. 

             IT IS SO ORDERED. 

/1/  CAL. PENAL CODE ^ 475A. 

/2/  THE ORDER OF THE CALIFORNIA SUPREME COURT IS UNREPORTED. 

/3/  THE DECISION OF THE DISTRICT COURT IS UNREPORTED. 

/4/  "ONE WOULD EXPECT A HARD-HEADED SYSTEM LIKE THE COMMON LAW TO
RECOGNIZE EXCEPTIONS EVEN TO THE MOST COMPREHENSIVE PRINCIPLE FOR
SAFEGUARDING LIBERTY.  THIS IS TRUE OF THE PROHIBITION OF ALL SEARCHES
AND SEIZURES AS UNREASONABLE UNLESS AUTHORIZED BY A JUDICIAL WARRANT
APPROPRIATELY SUPPORTED."  DAVIS V. UNITED STATES, 328 U.S. 582, 609
(FRANKFURTER, J., DISSENTING). 

/5/  SEE MIRANDA V. ARIZONA, 384 U.S. 436, 507, AND N. 3 (HARLAN,
J., DISSENTING); SPANO V. NEW YORK, 360 U.S. 315, 321 N. 2 (CITING 28
CASES). 

/6/  SIMILARLY, WHEN WE RECENTLY CONSIDERED THE MEANING OF A
"VOLUNTARY" GUILTY PLEA, WE RETURNED TO THE STANDARDS OF
"VOLUNTARINESS" DEVELOPED IN THE COERCED-CONFESSION CASES.  SEE BRADY
V. UNITED STATES, 397 U.S. 742, 749.  SEE ALSO N. 25, INFRA. 

/7/  BATOR & VORENBERG, ARREST, DETENTION, INTERROGATION AND THE
RIGHT TO COUNSEL:  BASIC PROBLEMS AND POSSIBLE LEGISLATIVE SOLUTIONS,
66 COL. L. REV. 62, 72 - 73.  SEE ALSO 3 J. WIGMORE, EVIDENCE ^ 836 (J.
CHADBOURN REV. 1970):  "WHEN, FOR EXAMPLE THREATS ARE USED, THE
SITUATION IS ONE OF CHOICE BETWEEN ALTERNATIVES, EITHER ONE
DISAGREEABLE, TO BE SURE, BUT STILL SUBJECT TO A CHOICE.  AS BETWEEN
THE RACK AND A CONFESSION, THE LATTER WOULD USUALLY BE CONSIDERED THE
LESS DISAGREEABLE; BUT IT IS NONETHELESS A VOLUNTARY CHOICE." 

/8/  SEE GENERALLY MIRANDA V. ARIZONA, 384 U.S., AT 508 (HARLAN, J.,
DISSENTING); 3 J. WIGMORE, EVIDENCE ^ 826 (J. CHADBOURN REV. 1970);
NOTE, DEVELOPMENTS IN THE LAW:  CONFESSIONS, 79 HARV. L. REV. 938, 954
984. 

/9/  SEE NOTE, CONSENT SEARCHES:  A REAPPRAISAL AFTER MIRANDA V.
ARIZONA, 67 COL. L. REV. 130, 130 - 131. 

/10/  IF THERE HAD BEEN PROBABLE CAUSE FOR THE SEARCH OF THE
AUTOMOBILE, A SEARCH WARRANT WOULD NOT HAVE BEEN NECESSARY IN THIS
CASE.  SEE BRINEGAR V. UNITED STATES, 338 U.S. 160; CARROLL V. UNITED
STATES, 267 U.S. 132. 

/11/  UNITED STATES V. CURIALE, 414 F. 2D 744, 747. 

/12/  CF. ROSENTHALL V. HENDERSON, 389 F. 2D 514, 516. 

/13/  SEE, E. G., GORMAN V. UNITED STATES, 380 F. 2D 158, 164 (CA1);
UNITED STATES EX REL. COLE V. MANCUSI, 429 F. 2D 61, 66 (CA2); UNITED
STATES EX REL. HARRIS V. HENDRICKS, 423 F. 2D 1096, 1101 (CA3); UNITED
STATES V. VICKERS, 387 F. 2D 703, 707 (CA4); UNITED STATES V. GOOSBEY,
419 F. 2D 818 (CA6); UNITED STATES V. NOA, 443 F. 2D 144, 147 (CA9);
LEEPER V. UNITED STATES, 446 F. 2D 281, 284 (CA10).  BUT SEE, UNITED
STATES V. NIKRASCH, 367 F. 2D 740, 744 (CA7); UNITED STATES V.
MODERACKI, 280 F. SUPP. 633 (DEL.); UNITED STATES V. BLALOCK, 255 F.
SUPP. 268 (ED PA.).  WHILE THERE IS DICTUM IN NIKRASCH TO THE EFFECT
THAT WARNINGS ARE NECESSARY FOR AN EFFECTIVE FOURTH AMENDMENT CONSENT,
THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT SUBSEQUENTLY RECANTED THAT
POSITION AND TERMED IT "OF DUBIOUS PROPRIETY."  BYRD V. LANE, 398 F. 2D
750, 755.  THE COURT OF APPEALS LIMITED NIKRASCH TO ITS FACTS--A CASE
WHERE A SUSPECT ARRESTED ON A DISORDERLY CONDUCT CHARGE AND
INCERCERATED FOR EIGHT HOURS "CONSENTED" FROM HIS JAIL CELL TO A SEARCH
OF HIS CAR. 

/14/  SEE, E. G., PEOPLE V. ROBERTS, 246 CAL. APP. 2D 715, 55 CAL.
RPTR.  62; PEOPLE V. DAHLKE, 257 CAL. APP. 2D 82, 64 CAL. RPTR.  599;
STATE V. CUSTER, 251 SO. 2D 287 (FLA. APP.); STATE V. OLDHAM, 92 IDAHO
124, 438 P. 2D 275; STATE V. MCCARTY, 199 KAN. 116, 427 P. 2D 616,
VACATED IN PART ON OTHER GROUNDS, 392 U.S. 308; HOHNKE V. COMMONWEALTH,
451 S. W. 2D 162 (KY.); STATE V. ANDRUS, 250 LA. 765, 199 SO. 2D 867;
MORGAN V. STATE, 2 MD. APP. 440, 234 A. 2D 762; STATE V. WITHERSPOON,
460 S. W. 2D 281 (MO.); STATE V. FORNEY, 181 NEB. 757, 150 N. W. 2D
915; STATE V. DOUGLAS, 260 ORE.  60, 488 P. 2D 1366. 

/15/  THIS VIEW IS BOLSTERED BY COOLIDGE V. NEW HAMPSHIRE, 403 U.S.
443.  THERE THE COURT DETERMINED THAT A SUSPECT'S WIFE WAS NOT
OPERATING AS AN AGENT OF THE STATE WHEN SHE HANDED OVER HER HUSBAND'S
GUNS AND CLOTHING TO THE POLICE.  WE FOUND NOTHING CONSTITUTIONALLY
SUSPECT IN THE SUBJECTIVE FORCES THAT IMPELLED THE SPOUSE TO COOPERATE
WITH THE POLICE.  "AMONG THESE ARE THE SIMPLE BUT OFTEN POWERFUL
CONVENTION OF OPENNESS AND HONESTY, THE FEAR THAT SECRETIVE BEHAVIOR
WILL INTENSIFY SUSPICION, AND UNCERTAINTY AS TO WHAT COURSE IS MOST
LIKELY TO BE HELPFUL TO THE ABSENT SPOUSE."  ID., AT 488.  "THE TEST .
. . IS WHETHER MRS. COOLIDGE, IN LIGHT OF ALL THE CIRCUMSTANCES OF THE
CASE, MUST BE REGARDED AS HAVING ACTED AS AN 'INSTRUMENT' OR AGENT OF
THE STATE WHEN SHE PRODUCED HER HUSBAND'S BELONGINGS."  ID., AT 487. 

JUST AS IT WAS NECESSARY IN COOLIDGE TO ANALYZE THE TOTALITY OF THE
SURROUNDING CIRCUMSTANCES TO ASSESS THE VALIDITY OF MRS. COOLIDGE'S
OFFER OF EVIDENCE, IT IS EQUALLY NECESSARY TO ASSESS ALL THE
CIRCUMSTANCES SURROUNDING A SEARCH WHERE CONSENT IS OBTAINED IN
RESPONSE TO AN INITIAL POLICE QUESTION. 

/16/  JOHNSON V. ZERBST, 304 U.S. 458, ITSELF RELIED ON THREE CIVIL
CASES, BUT NONE OF THOSE CASES ESTABLISHED THE PROPOSITION THAT A
WAIVER, TO BE EFFECTIVE, MSUT BE KNOWING AND INTELLIGENT.  HODGES V.
EASTON, 106 U.S. 408, WHICH CONCERNED THE WAIVER OF A CIVIL JURY TRIAL
BY THE SUBMISSION OF A SPECIAL VERDICT TO THE JURY, INDICATES ONLY THAT
"EVERY REASONABLE PRESUMPTION SHOULD BE INDULGED AGAINST . . .
WAIVER."  ID., AT 412.  AETNA INS. CO. V. KENNEDY, 301 U.S. 389, IS TO
THE SAME EFFECT.  OHIO BELL TEL. CO. V. PUBLIC UTILITIES COMM'N, 301
U.S. 292, WHICH INVOLVED THE POSSIBLE WAIVER OF PROCEDURAL DUE PROCESS
RIGHTS, STANDS ONLY FOR THE PROPOSITION THAT:  "WE DO NOT PRESUME
ACQUIESENCE IN THE LOSS OF FUNDAMENTAL RIGHTS."  ID., AT 307. 

/17/  CF. PARDEN V. TERMINAL R. CO., 377 U.S. 184 (OPERATION OF
COMMON CARRIER RAILROAD FOUND TO BE WAIVER OF STATE'S SOVEREIGN
IMMUNITY DESPITE OBJECTION THAT THERE WAS NO "WAIVER" UNDER JOHNSON);
NATIONAL EQUIPMENT RENTAL, LTD. V. SZUKHENT, 375 U.S. 311 (VALID WAIVER
OF PROCEDURAL DUE PROCESS FOUND OVER OBJECTION OF NO COMPLIANCE WITH
JOHNSON).  SEE ALSO EMPLOYEES V. MISSOURI PUBLIC HEALTH DEPT., 411 U.S.
279, 296 (MARSHALL, J., CONCURRING). 

/18/  ONE APPARENT EXCEPTION WAS MARCHETTI V. UNITED STATES, 390
U.S. 39, 51 - 52, WHERE WE FOUND NO MEANINGFUL WAIVER OF THE PRIVILEGE
AGAINST COMPULSOTY SELF-INCRIMINATION WHEN A GAMBLER WAS FORCED TO PAY
A WAGERING TAX.  WE REASONED THAT THERE COULD BE NO CHOICE WHEN THE
GAMBLER WAS FACED WITH THE ALTERNATIVE OF GIVING UP GAMBLING OR
PROVIDING INCRIMINATORY INFORMATION.  ANALYTICALLY, THEREFORE, ALTHOUGH
THE COURT CITED JOHNSON, MARCHETTI TURNED ON THE LACK OF A "VOLUNTARY"
WAIVER RATHER THAN THE LACK OF ANY "KNOWING" AND "INTELLIGENT" WAIVER. 

/19/  SEE, E. G., GLASSER V. UNITED STATES, 315 U.S. 60; ADAMS V.
UNITED STATES EX REL. MCCANN, 317 U.S. 269; CARNLEY V. CHCHRAN, 369
U.S. 506; CF. CHESSMAN V. TEETS, 354 U.S. 156 (NO WAIVER OF COUNSEL
SHOWN AT SETTLEMENT OF STATE COURT RECORD). 

/20/  SEE, E. G., VON MOLTKE V. GILLIES, 332 U.S. 708; UVEGES V.
PENNSYLVANIA, 335 U.S. 437; MOORE V. MICHIGAN, 355 U.S. 155; BOYD V.
DUTTON, 405 U.S. 1. 

/21/  SEE, E. G., BROOKHART V. JANIS, 384 U.S. 1; BARBER V. PAGE,
390 U.S. 719. 

/22/  SEE, E. G., ADAMS V. UNITED STATES EX REL. MCCANN, SUPRA. 

/23/  SEE, E. G., BARKER V. WINGO, 407 U.S. 514. 

/24/  SEE, E. G., GREEN V. UNITED STATES, 355 U.S. 184. 

/25/  SEE, E. G., MCCARTHY V. UNITED STATES, 394 U.S. 459; BOYKIN V.
ALABAMA, 395 U.S. 238. 

OUR CASES CONCERNING THE VALIDITY OF GUILTY PLEAS UNDERSCORE THE
FACT THAT THE QUESTION WHETHER A PERSON HAS ACTED "VOLUNTARILY" IS
QUITE DISTINCT FROM THE QUESTION WHETHER HE HAS "WAIVED" A TRIAL
RIGHT.  THE FORMER QUESTION, AS WE MADE CLEAR IN BRADY V. UNITED
STATES, 397 U.S., AT 749, CAN BE ANSWERED ONLY BY EXAMINING ALL THE
RELEVANT CIRCUMSTANCES TO DETERMINE IF HE HAS BEEN COERCED.  THE LATTER
QUESTION TURNS ON THE EXTENT OF HIS KNOWLEDGE.  WE DREW THE SAME
DISTINCTION IN MCMANN V. RICHARDSON, 397 U.S. 759, 766: 

"A CONVICTION AFTER A PLEA OF GUILTY NORMALLY RESTS ON THE
DEFENDANT'S OWN ADMISSION IN OPEN COURT THAT HE COMMITTED THE ACTS WITH
WHICH HE IS CHARGED.  . . . THAT ADMISSION MAY NOT BE COMPELLED, AND
SINCE THE PLEA IS ALSO A WAIVER OF TRIAL--AND UNLESS THE APPLICABLE LAW
OTHERWISE PROVIDES, A WAIVER OF THE RIGHT TO CONTEST THE ADMISSIBILITY
OF ANY EVIDENCE THE STATE MIGHT HAVE OFFERED AGAINST THE DEFENDANT--IT
MUST BE AN INTELLIGENT ACT 'DONE WITH SUFFICIENT AWARENESS OF THE
RELEVANT CIRCUMSTANCES AND LIKELY CONSEQUENCES.'"  (FOOTNOTE OMITTED.) 

/26/  SEE, E. G., SMITH V. UNITED STATES, 337 U.S. 137. 

/27/  SEE, E. G., EMSPAK V. UNITED STATES, 349 U.S. 190. 

/28/  SEE IN RE GAULT, 387 U.S. 1, 42. 

/29/  AS WE HAVE ALREADY NOTED, SUPRA, AT 232, MIRANDA ITSELF
INVOLVED INTERROGATION OF A SUSPECT DETAINED IN CUSTODY AND DID NOT
CONCERN THE INVESTIGATORY PROCEDURES OF THE POLICE IN GENERAL ON-THE
SCENE QUESTIONING.  384 U.S., AT 477. 

BY THE SAME TOKEN, THE PRESENT CASE DOES NOT REQUIRE A DETERMINATION
OF THE PROPER STANDARD TO BE APPLIED IN ASSESSING THE VALIDITY OF A
SEARCH AUTHORIZED SOLELY BY AN ALLEGED CONSENT THAT IS OBTAINED FROM A
PERSON AFTER HE HAS BEEN PLACED IN CUSTODY.  WE DO NOTE, HOWEVER, THAT
OTHER COURTS HAVE BEEN PARTICULARLY SENSITIVE TO THE HEIGHTENED
POSSIBILITIES FOR COERCION WHEN THE "CONSENT" TO A SEARCH WAS GIVEN BY
A PERSON IN CUSTODY.  SEE, E. G., JUDD V. UNITED STATES, 89 U.S. APP.
D.C. 64, 66, 190 F. 2D 649, 651; CHANNEL V. UNITED STATES, 285 F. 2D
217; VILLANO V. UNITED STATES, 310 F. 2D 680, 684; UNITED STATES V.
MARRESE, 336 F. 2D 501.     /30/  "(IN) THE UNIFORMLY STRUCTURED
SITUATION OF THE DEFENDANT WHOSE CASE IS FORMALLY CALLED FOR PLEA OR
TRIAL, WHERE, WITH EVERYTHING TO BE GAINED BY THE PRESENCE OF COUNSEL
AND NO INTEREST DESERVING CONSIDERATION TO BE LOST, AN INFLEXIBLE RULE
SERVES WELL."  FRIENDLY, THE BILL OF RIGHTS AS A CODE OF CRIMINAL
PROCEDURE, 53 CALIF. L. REV. 929, 950. 

/31/  WHILE WE HAVE OCCASIONALLY REFERRED TO A CONSENT SEARCH AS A
"WAIVER," WE HAVE NEVER USED THAT TERM TO MEAN "AN INTENTIONAL
RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE."  HENCE,
FOR EXAMPLE, IN JOHNSON V. UNITED STATES, 333 U.S. 10, THIS COURT FOUND
THE CONSENT TO BE INEFFECTIVE:  "ENTRY TO DEFENDANT'S LIVING QUARTERS,
WHICH WAS THE BEGINNING OF THE SEARCH, WAS DEMANDED UNDER COLOR OF
OFFICE.  IT WAS GRANTED IN SUBMISSION TO AUTHORITY RATHER THAN AS AN
UNDERSTANDING AND INTENTIONAL WAIVER OF A CONSTITUTIONAL RIGHT."  ID.,
AT 13.  WHILE THE COURT SPOKE IN TERMS OF "WAIVER" IT ARRIVED AT THE
CONCLUSION THAT THERE HAD BEEN NO "WAIVER" FROM AN ANALYSIS OF THE
TOTALITY OF THE OBJECTIVE CIRCUMSTANCES--NOT FROM THE ABSENCE OF ANY
EXPRESS INDICATION OF JOHNSON'S KNOWLEDGE OF A RIGHT TO REFUSE OR THE
LACK OF EXPLICIT WARNINGS.  SEE ALSO AMOS V. UNITED STATES, 255 U.S.
313. 

/32/  THE COURT WAS EVEN MORE EXPLICIT IN VON MOLTKE V. GILLIES, 332
U.S., AT 723 - 724: "TO DISCHARGE THIS DUTY (OF ASSURING THE
INTELLIGENT NATURE OF THE WAIVER) PROPERLY IN LIGHT OF THE STRONG
PRESUMPTION AGAINST WAIVER OF THE CONSTITUTIONAL RIGHT TO COUNSEL, A
JUDGE MUST INVESTIGATE AS LONG AND AS THOROUGHLY AS THE CIRCUMSTANCES
OF THE CASE BEFORE HIM DEMAND.  THE FACT THAT AN ACCUSED MAY TELL HIM
THAT HE IS INFORMED OF HIS RIGHT TO COUNSEL AND DESIRES TO WAIVE THIS
RIGHT DOES NOT AUTOMATICALLY END THE JUDGE'S RESPONSIBILITY.  TO BE
VALID SUCH WAIVER MUST BE MADE WITH AN APPREHENSION OF THE NATURE OF
THE CHARGES, THE STATUTORY OFFENSES INCLUDED WITHIN THEM, THE RANGE OF
ALLOWABLE PUNISHMENTS THEREUNDER, POSSIBLE DEFENSES TO THE CHARGES AND
CIRCUMSTANCES IN MITIGATION THEREOF, AND ALL OTHER FACTS ESSENTIAL TO A
BROAD UNDERSTANDING OF THE WHOLE MATTER.  A JUDGE CAN MAKE CERTAIN THAT
AN ACCUSED'S PROFESSED WAIVER OF COUNSEL IS UNDERSTANDINGLY AND WISELY
MADE ONLY FROM A PENETRATING AND COMPREHENSIVE EXAMINATION OF ALL THE
CIRCUMSTANCES UNDER WHICH SUCH A PLEA IS TENDERED." 

/33/  IT SEEMS CLEAR THAT EVEN A LIMITED VIEW OF THE DEMANDS OF "AN
INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR
PRIVILEGE" STANDARD WOULD INEVITABLY LEAD TO A REQUIREMENT OF DETAILED
WARNINGS BEFORE ANY CONSENT SEARCH--A REQUIREMENT ALL BUT UNIVERSALLY
REJECTED TO DATE.  SEE NN. 13 AND 14, SUPRA.  AS THE COURT STATED IN
MIRANDA WITH RESPECT TO THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION:  "(WE WILL NOT PAUSE TO INQUIRE IN INDIVIDUAL CASES
WHETHER THE DEFENDANT WAS AWARE OF HIS RIGHTS WITHOUT A WARNING BEING
GIVEN.  ASSESSMENTS OF THE KNOWLEDGE THE DEFENDANT POSSESSED, BASED ON
INFORMATION AS TO HIS AGE, EDUCATION, INTELLIGENCE, OR PRIOR CONTACT
WITH AUTHORITIES, CAN NEVER BE MORE THAN SPECULATION; A WARNING IS A
CLEARCUT FACT."  MIRANDA V. ARIZONA, 384 U.S., AT 468 - 469 (FOOTNOTE
OMITTED).  SEE UNITED STATES V. MODERACKI, 280 F. SUPP. 633; UNITED
STATES V. BLALOCK, 255 F. SUPP. 268. 

/34/  OUR DECISION TODAY IS, OF COURSE, CONCERNED WITH WHAT
CONSTITUTES A VALID CONSENT, NOT WHO CAN CONSENT.  BUT, THE
CONSTITUTIONAL VALIDITY OF THIRD-PARTY CONSENTS DEMONSTRATES THE
FUNDAMENTALLY DIFFERENT NATURE OF A CONSENT SEARCH FROM THE WAIVER OF A
TRIAL RIGHT. 

/35/  FRIENDLY, SUPRA, N. 30, AT 950. 

/36/  AS NOTED ABOVE, SUPRA, N. 29, THE PRESENT CASE DOES NOT
REQUIRE A DETERMINATION OF WHAT EFFECT CUSTODIAL CONDITIONS MIGHT HAVE
ON A SEARCH AUTHORIZED SOLELY BY AN ALLEGED CONSENT. 

/37/  SEE, E. G., CLEWIS V. TEXAS, 386 U.S. 707; CULOMBE V.
CONNECTICUT, 367 U.S. 568; RECK V. PATE, 367 U.S. 433; PAYNE V.
ARKANSAS, 356 U.S. 560; FIKES V. ALABAMA, 352 U.S. 191; HARRIS V. SOUTH
CAROLINA, 338 U.S. 68; HALEY V. OHIO, 332 U.S. 596. 

MR. JUSTICE WHITE ONCE ANSWERED A SIMILAR ARGUMENT: 

"THE COURT MAY BE CONCERNED WITH A NARROWER MATTER:  THE UNKNOWING
DEFENDANT WHO RESPONDS TO POLICE QUESTIONING BECAUSE HE MISTAKENLY
BELIEVES THAT HE MUST AND THAT HIS ADMISSIONS WILL NOT BE USED AGAINST
HIM.  . . . THE FAILURE TO INFORM AN ACCUSED THAT HE NEED NOT ANSWER
AND THAT HIS ANSWERS MAY BE USED AGAINST HIM IS VERY RELEVANT INDEED TO
WHETHER THE DISCLOSURES ARE COMPELLED.  CASES IN THIS COURT, TO SAY THE
LEAST, HAVE NEVER PLACED A PREMIUM ON IGNORANCE OF CONSTITUTIONAL
RIGHTS.  IF AN ACCUSED IS TOLD HE MUST ANSWER AND DOES NOT KNOW BETTER,
IT WOULD BE VERY DOUBTFUL THAT THE RESULTING ADMISSIONS COULD BE USED
AGAINST HIM.  WHEN THE ACCUSED HAS NOT BEEN INFORMED OF HIS RIGHTS AT
ALL THE COURT CHARACTERISTICALLY AND PROPERLY LOOKS VERY CLOSELY AT THE
SURROUNDING CIRCUMSTANCES."  ESCOBEDO V. ILLINOIS, 378 U.S. 478, 499
(WHITE, J., DISSENTING). 

/38/  THE STATE ALSO URGES US TO HOLD THAT A VIOLATION OF THE
EXCLUSIONARY RULE MAY NOT BE RAISED BY A STATE OR FEDERAL PRISONER IN A
COLLATERAL ATTACK ON HIS CONVICTION, AND THUS ASKS US TO OVERTURN OUR
CONTRARY HOLDINGS IN KAUFMAN V. UNITED STATES, 394 U.S. 217; WHITELEY
V. WARDEN, 401 U.S. 560; HARRIS V. NELSON, 394 U.S. 286; AND MANCUSI V.
DEFORTE, 392 U.S. 364.  SINCE WE HAVE FOUND NO VALID FOURTH AND
FOURTEENTH AMENDMENT CLAIM IN THIS CASE, WE DO NOT CONSIDER THAT
QUESTION. 

MR. JUSTICE BLACKMUN, CONCURRING. 

I JOIN THE COURT'S OPINION AND ITS JUDGMENT. 

AT THE TIME KAUFMAN V. UNITED STATES, 394 U.S. 217 (1969), WAS
DECIDED, I, AS A MEMBER OF THE COURT OF APPEALS (BUT NOT OF ITS PANEL)
WHOSE ORDER WAS THERE REVERSED, FOUND MYSELF IN AGREEMENT WITH THE
VIEWS EXPRESSED BY MR. JUSTICE HARLAN, WRITING FOR HIMSELF AND MY
BROTHER STEWART IN DISSENT.  ID., AT 242.  MY ATTITUDE HAS NOT CHANGED
IN THE FOUR YEARS THAT HAVE PASSED SINCE KAUFMAN WAS DECIDED. 

ALTHOUGH I AGREE WITH NEARLY ALL THAT MR. JUSTICE POWELL HAS TO SAY
IN HIS DETAILED AND PERSUASIVE CONCURRING OPINION, POST, P. 250, I
REFRAIN FROM JOINING IT AT THIS TIME BECAUSE, AS MR. JUSTICE STEWART'S
OPINION REVEALS, IT IS NOT NECESSARY TO RECONSIDER KAUFMAN IN ORDER TO
DECIDE THE PRESENT CASE. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, IT DOES NOT ADDRESS WHAT
SEEMS TO ME THE OVERRIDING ISSUE BRIEFED AND ARGUED IN THIS CASE:  THE
EXTENT TO WHICH FEDERAL HABEAS CORPUS SHOULD BE AVAILABLE TO A STATE
PRISONER SEEKING TO EXCLUDE EVIDENCE FROM AN ALLEGEDLY UNLAWFUL SEARCH
AND SEIZURE.  I WOULD HOLD THAT FEDERAL COLLATERAL REVIEW OF A STATE
PRISONER'S FOURTH AMENDMENT CLAIMS--CLAIMS WHICH RARELY BEAR ON
INNOCENCE--SHOULD BE CONFINED SOLELY TO THE QUESTION OF WHETHER THE
PETITIONER WAS PROVIDED A FAIR OPPORTUNITY TO RAISE AND HAVE
ADJUDICATED THE QUESTION IN STATE COURTS.  IN VIEW OF THE IMPORTANCE OF
THIS ISSUE TO OUR SYSTEM OF CRIMINAL JUSTICE, I THINK IT APPROPRIATE TO
EXPRESS MY VIEWS. 

        I 

ALTHOUGH PETITIONS FOR FEDERAL HABEAS CORPUS ASSERT A WIDE VARIETY
OF CONSTITUTIONAL QUESTIONS, WE ARE CONCERNED IN THIS CASE ONLY WITH A
FOURTH AMENDMENT CLAIM THAT AN UNLAWFUL SEARCH OCCURRED AND THAT THE
STATE COURT ERRED IN FAILING TO EXCLUDE THE EVIDENCE OBTAINED
THEREFROM.  A DIVIDED COURT IN KAUFMAN V. UNITED STATES, 394 U.S. 217
(1969), HELD THAT COLLATERAL REVIEW OF SEARCH AND SEIZURE CLAIMS WERE
APPROPRIATE ON MOTIONS FILED BY FEDERAL PRISONERS UNDER 28 U.S.C. ^
2255.  UNTIL KAUFMAN, A SUBSTANTIAL MAJORITY OF THE FEDERAL COURTS OF
APPEALS HAD CONSIDERED THAT CLAIMS OF UNLAWFUL SEARCH AND SEIZURE "'ARE
NOT PROPER MATTERS TO BE PRESENTED BY A MOTION TO VACATE SENTENCE UNDER
^ 2255 . . . .'"  ID., AT 220.  THE RATIONALE OF THIS VIEW WAS FAIRLY
SUMMARIZED BY THE COURT:

"THE DENIAL OF FOURTH AMENDMENT PROTECTION AGAINST UNREASONABLE
SEARCHES AND SEIZURES, THE GOVERNMENT'S ARGUMENT RUNS, IS OF A
DIFFERENT NATURE FROM DENIALS OF OTHER CONSTITUTIONAL RIGHTS WHICH WE
HAVE HELD SUBJECT TO COLLATERAL ATTACK BY FEDERAL PRISONERS.  FOR
UNLIKE A CLAIM OF DENIAL OF EFFECTIVE COUNSEL OR OF VIOLATION OF THE
PRIVILEGE AGAINST SELF INCRIMINATION, AS EXAMPLES, A CLAIM OF ILLEGAL
SEARCH AND SEIZURE DOES NOT IMPUGN THE INTEGRITY OF THE FACT-FINDING
PROCESS OR CHALLENGE EVIDENCE AS INHERENTLY UNRELIABLE; RATHER, THE
EXCLUSION OF ILLEGALLY SEIZED EVIDENCE IS SIMPLY A PROPHYLACTIC DEVICE
INTENDED GENERALLY TO DETER FOURTH AMENDMENT VIOLATIONS BY LAW
ENFORCEMENT OFFICERS."  ID., AT 224. 

IN REJECTING THIS RATIONALE, THE COURT NOTED THAT UNDER PRIOR
DECISIONS "THE FEDERAL HABEAS REMEDY EXTENDS TO STATE PRISONERS
ALLEGING THAT UNCONSTITUTIONALLY OBTAINED EVIDENCE WAS ADMITTED AGAINST
THEM AT TRIAL,"  /1/  AND CONCLUDED THAT THERE WAS NO BASIS FOR
RESTRICTING "ACCESS BY FEDERAL PRISONERS WITH ILLEGAL SEARCH-AND
SEIZURE CLAIMS TO FEDERAL COLLATERAL REMEDIES, WHILE PLACING NO SIMILAR
RESTRICTION ON ACCESS BY STATE PRISONERS."  ID., AT 225 - 226.  IN
SHORT, ON PETITION FOR HABEAS CORPUS OR COLLATERAL REVIEW FILED IN A
FEDERAL DISTRICT COURT, WHETHER BY STATE PRISONERS UNDER ^ 2254 OR
FEDERAL PRISONERS UNDER ^ 2255, THE PRESENT RULE IS THAT FOURTH
AMENDMENT CLAIMS MAY BE ASSERTED AND THE EXCLUSIONARY RULE MUST BE
APPLIED IN PRECISELY THE SAME MANNER AS ON DIRECT REVIEW.  NEITHER THE
HISTORY OR PURPOSE OF HABEAS CORPUS, THE DESIRED PROPHYLACTIC UTILITY
OF THE EXCLUSIONARY RULE AS APPLIED TO FOURTH AMENDMENT CLAIMS, NOR ANY
SOUND REASON RELEVANT TO THE ADMINISTRATION OF CRIMINAL JUSTICE IN OUR
FEDERAL SYSTEM JUSTIFIES SUCH A POWER. 

        II 

THE FEDERAL REVIEW INVOLVED IN THIS FOURTH AMENDMENT CASE GOES WELL
BEYOND THE TRADITIONAL PURPOSE OF THE WRIT OF HABEAS CORPUS.  MUCH OF
THE PRESENT PERCEPTION OF HABEAS CORPUS STEMS FROM A REVISIONIST VIEW
OF THE HISTORIC FUNCTION THAT WRIT WAS MEANT TO PERFORM.  THE CRITICAL
HISTORICAL ARGUMENT WAS FOCUSED ON THE NATURE OF THE WRIT AT THE TIME
OF ITS INCORPORATION IN OUR CONSTITUTION AND AT THE TIME OF THE HABEAS
CORPUS ACT OF 1867, THE DIRECT ANCESTOR OF CONTEMPORARY HABEAS CORPUS
STATUTES.  /2/  IN FAY V. NOIA, 372 U.S. 391, 426 (1963), THE COURT
INTERPRETED THE WRIT'S HISTORIC POSITION AS FOLLOWS: 

"AT THE TIME THE PRIVILEGE OF THE WRIT WAS WRITTEN INTO THE FEDERAL
CONSTITUTION IT WAS SETTLED THAT THE WRIT LAY TO TEST ANY RESTRAINT
CONTRARY TO FUNDAMENTAL LAW, WHICH IN ENGLAND STEMMED ULTIMATELY FROM
MAGNA CHARTA BUT IN THIS COUNTRY WAS EMBODIED IN THE WRITTEN
CONSTITUTION.  CONGRESS IN 1867 SOUGHT TO PROVIDE A FEDERAL FORUM FOR
STATE PRISONERS HAVING CONSTITUTIONAL DEFENSES BY EXTENDING THE HABEAS
CORPUS POWERS OF THE FEDERAL COURTS TO THEIR CONSTITUTIONAL MAXIMUM. 
OBEDIENT TO THIS PURPOSE, WE HAVE CONSISTENTLY HELD THAT FEDERAL COURT
JURISDICTION IS CONFERRED BY THE ALLEGATION OF AN UNCONSTITUTIONAL
RESTRAINT AND IS NOT DEFEATED BY ANYTHING THAT MAY OCCUR IN THE STATE
COURT PROCEEDINGS." 

IF THIS WERE A CORRECT INTERPRETATION OF THE RELEVANT HISTORY, THE
PRESENT WIDE SCOPE ACCORDED THE WRIT WOULD HAVE ARGUABLE SUPPORT,
DESPITE THE IMPRESSIVE REASONS TO THE CONTRARY.  BUT RECENT SCHOLARSHIP
HAS CAST GRAVE DOUBT ON FAY'S VERSION OF THE WRIT'S HISTORIC FUNCTION. 

IT HAS BEEN ESTABLISHED THAT BOTH THE FRAMERS OF THE CONSTITUTION
AND THE AUTHORS OF THE 1867 ACT EXPECTED THAT THE SCOPE OF HABEAS
CORPUS WOULD BE DETERMINED WITH REFERENCE TO THE WRIT'S HISTORIC,
COMMON-LAW DEVELOPMENT.  /3/  MR. CHIEF JUSTICE MARSHALL EARLY REFERRED
TO THE COMMON-LAW CONCEPTION OF THE WRIT IN DETERMINING ITS
CONSTITUTIONAL AND STATUTORY SCOPE, EX PARTE BOLLMAN, 4 CRANCH 75, 93 -
94 (1807), EX PARTE WATKINS, 3 PET. 193, 201 - 202 (1830), AND
PROFESSOR OAKS HAS NOTED THAT "WHEN THE 1867 CONGRESS PROVIDED THAT
PERSONS RESTRAINED OF THEIR LIBERTY IN VIOLATION OF THE CONSTITUTION
COULD OBTAIN A WRIT OF HABEAS CORPUS FROM A FEDERAL COURT, IT
UNDOUBTEDLY INTENDED--EXCEPT TO THE EXTENT THE LEGISLATION PROVIDED
OTHERWISE--TO INCORPORATE THE COMMON-LAW USES AND FUNCTIONS OF THIS
REMEDY."  /4/ 

IT THUS BECOMES IMPORTANT TO UNDERSTAND EXACTLY WHAT WAS THE COMMON
LAW SCOPE OF THE WRIT BOTH WHEN EMBRACED BY OUR CONSTITUTION AND
INCORPORATED INTO THE HABEAS CORPUS ACT OF 1867.  TWO RESPECTED
SCHOLARS HAVE RECENTLY EXPLORED PRECISELY THESE QUESTIONS.  /5/  THEIR
EFFORTS HAVE BEEN BOTH METICULOUS AND REVEALING.  THEIR CONCLUSIONS
DIFFER SIGNIFICANTLY FROM THOSE OF THE COURT IN FAY V. NOIA, THAT
HABEAS CORPUS TRADITIONALLY HAS BEEN AVAILABLE "TO REMEDY ANY KIND OF
GOVERNMENTAL RESTRAINT CONTRARY TO FUNDAMENTAL LAW."  372 U.S., AT
405. 

THE CONSIDERABLE EVIDENCE MARSHALED BY THESE SCHOLARS NEED NOT BE
RESTATED HERE.  PROFESSOR OAKS MAKES A CONVINCING CASE THAT UNDER THE
COMMON LAW OF HABEAS CORPUS AT THE TIME OF THE ADOPTION OF THE
CONSTITUTION, "ONCE A PERSON HAD BEEN CONVICTED BY A SUPERIOR COURT OF
GENERAL JURISDICTION, A COURT DISPOSING OF A HABEAS CORPUS PETITION
COULD NOT GO BEHIND THE CONVICTION OF ANY PURPOSE OTHER THAN TO VERIFY
THE FORMAL JURISDICTION OF THE COMMITTING COURT."  /6/  CERTAINLY THAT
WAS WHAT MR. CHIEF JUSTICE MARSHALL UNDERSTOOD WHEN HE STATED: 

     "THIS WRIT (HABEAS CORPUS) IS, AS HAS BEEN SAID, IN THE NATURE

  OF A WRIT OF ERROR WHICH BRINGS UP THE BODY OF THE PRISONER WITH

  THE CAUSE OF COMMITMENT.  THE COURT CAN UNDOUBTEDLY INQUIRE INTO

  THE SUFFICIENCY OF THAT CAUSE; BUT IF IT BE THE JUDGMENT OF A

  COURT OF COMPETENT JURISDICTION, ESPECIALLY A JUDGMENT WITHDRAWN

  BY LAW FROM THE REVISION OF THIS COURT, IS NOT THAT JUDGMENT IN

  ITSELF SUFFICIENT CAUSE?  CAN THE COURT, UPON THIS WRIT, LOOK

  BEYOND THE JUDGMENT, AND RE-EXAMINE THE CHARGES ON WHICH IT WAS

  RENDERED.  A JUDGMENT, IN ITS NATURE, CONCLUDES THE SUBJECT ON

  WHICH IT IS RENDERED, AND PRONOUNCES THE LAW OF THE CASE.  THE

  JUDGMENT OF A COURT OF RECORD WHOSE JURISDICTION IS FINAL, IS AS

  CONCLUSIVE ON ALL THE WORLD AS THE JUDGMENT OF THIS COURT WOULD

  BE. IT IS AS CONCLUSIVE ON THIS COURT AS IT IS ON OTHER COURTS. 

  IT PUTS AN END TO INQUIRY CONCERNING THE FACT, BY DECIDING IT." 

  EX PARTE WATKINS, 3 PET., AT 202 - 203. 

THE RESPECT SHOWN UNDER COMMON LAW FOR THE FINALITY OF THE JUDGMENT
OF A COMMITTING COURT AT THE TIME OF THE CONSTITUTION AND IN THE EARLY
19TH CENTURY DID NOT, OF COURSE, EXPLICITLY CONTEMPLATE THE OPERATION
OF HABEAS CORPUS IN THE CONTEXT OF FEDERAL-STATE RELATIONS.  FEDERAL
HABEAS REVIEW FOR STATE PRISONERS WAS NOT AVAILABLE UNTIL PASSAGE OF
THE HABEAS CORPUS ACT OF 1867.  YET THERE IS NO EVIDENCE THAT CONGRESS
INTENDED THAT ACT TO JETTISON THE RESPECT THERETOFORE SHOWN BY A
REVIEWING COURT FOR PRIOR JUDGMENTS BY A COURT OF PROPER JURISDICTION. 
THE ACT "RECEIVED ONLY THE MOST PERFUNCTORY ATTENTION AND CONSIDERATION
IN THE CONGRESS; INDEED, THERE WERE COMPLAINTS THAT ITS EFFECTS COULD
NOT BE UNDERSTOOD AT ALL."  /7/  IN FACT, AS PROFESSOR BATOR NOTES, IT
WOULD REQUIRE OVERWHELMING EVIDENCE, WHICH SIMPLY IS NOT PRESENT, TO
CONCLUDE THAT THE 1867 CONGRESS INTENDED "TO TEAR HABEAS CORPUS
ENTIRELY OUT OF THE CONTEXT OF ITS HISTORICAL MEANING AND SCOPE AND
CONVERT IT INTO AN ORDINARY WRIT OF ERROR WITH RESPECT TO ALL FEDERAL
QUESTIONS IN ALL CRIMINAL CASES."  /8/  RATHER, THE HOUSE JUDICIARY
COMMITTEE WHEN IT REVIEWED THE ACT IN 1884 UNDERSTOOD THAT IT WAS NOT
"CONTEMPLATED BY ITS FRAMERS OR . . . PROPERLY . . . CONSTRUED TO
AUTHORIZE THE OVERTHROW OF THE FINAL JUDGMENTS OF THE STATE COURTS OF
GENERAL JURISDICTION, BY THE INFERIOR FEDERAL JUDGES.  . . ."  /9/ 

MUCH, OF COURSE, HAS TRANSPIRED SINCE THAT FIRST HABEAS CORPUS ACT. 
SEE FAY V. NOIA, 372 U.S., AT 449 - 463 (HARLAN, J., DISSENTING).  THE
SCOPE OF FEDERAL HABEAS CORPUS FOR STATE PRISONERS HAS EVOLVED FROM A
QUITE LIMITED INQUIRY INTO WHETHER THE COMMITTING STATE COURT HAD
JURISDICTION, ANDREWS V. SWARTZ, 156 U.S. 272 (1895); IN RE MORAN, 203
U.S. 96 (1906), TO WHETHER THE APPLICANT HAD BEEN GIVEN AN ADEQUATE
OPPORTUNITY IN STATE COURT TO RAISE HIS CONSTITUTIONAL CLAIMS, FRANK V.
MANGUM, 237 U.S. 309 (1915); AND FINALLY TO ACTUAL REDETERMINATION IN
FEDERAL COURT OF STATE COURT RULINGS ON A WIDE VARIETY OF
CONSTITUTIONAL CONTENTIONS, BROWN V. ALLEN, 344 U.S. 443 (1953).  NO
ONE WOULD NOW SUGGEST THAT THIS COURT BE IMPRISONED BY EVERY PARTICULAR
OF HABEAS CORPUS AS IT EXISTED IN THE LATE 18TH AND 19TH CENTURIES. 
BUT RECOGNITION OF THAT REALITY DOES NOT LIBERATE US FROM ALL
HISTORICAL RESTRAINT.  THE HISTORICAL EVIDENCE DEMONSTRATES THAT THE
PURPOSES OF THE WRIT, AT THE TIME OF THE ADOPTION OF THE CONSTITUTION,
WERE TEMPERED BY A DUE REGARD FOR THE FINALITY OF THE JUDGMENT OF THE
COMMITTING COURT.  THIS REGARD WAS MAINTAINED SUBSTANTIALLY INTACT WHEN
CONGRESS, IN THE HABEAS CORPUS ACT OF 1867, FORST EXTENDED FEDERAL
HABEAS REVIEW TO THE DELICATE INTERRELATIONS OF OUR DUAL COURT
SYSTEMS. 

        III 

RECENT DECISIONS, HOWEVER, HAVE TENDED TO DEPRECIATE THE IMPORTANCE
OF THE FINALITY OF PRIOR JUDGMENTS IN CRIMINAL CASES.  KAUFMAN, 394
U.S., AT 228; SANDERS V. UNITED STATES, 373 U.S. 1, 8 (1963); FAY,
SUPRA, AT 424.  THIS TREND MAY BE A JUSTIFIABLE EVOLUTION OF THE USE OF
HABEAS CORPUS WHERE THE ONE IN STATE CUSTODY RAISES A CONSTITUTIONAL
CLAIM BEARING ON HIS INNOCENCE.  BUT THE JUSTIFICATION FOR DISREGARDING
THE HISTORIC SCOPE AND FUNCTION OF THE WRIT IS MEASURABLY LESS APPARENT
IN THE TYPICAL FOURTH AMENDMENT CLAIM ASSERTED ON COLLATERAL ATTACK. 
IN THIS LATTER CASE, A CONVICTED DEFENDANT IS MOST OFTEN ASKING SOCIETY
TO REDETERMINE A MATTER WITH NO BEARING AT ALL ON THE BASIC JUSTICE OF
HIS INCARCERATION. 

HABEAS CORPUS INDEED SHOULD PROVIDE THE ADDED ASSURANCE FOR A FREE
SOCIETY THAT NO INNOCENT MAN SUFFERS AN UNCONSTITUTIONAL LOSS OF
LIBERTY.  THE COURT IN FAY DESCRIBED HABEAS CORPUS AS A REMEDY FOR
"WHATEVER SOCIETY DEEMS TO BE INTOLERABLE RESTRAINTS," AND RECOGNIZED
THAT THOSE TO WHOM THE WRIT SHOULD BE GRANTED "ARE PERSONS WHOM SOCIETY
HAS GREVIOUSLY WRONGED AND FOR WHOM BELATED LIBERATION IS LITTLE ENOUGH
COMPENSATION."  ID., AT 401 - 402, 441.  THE COURT THERE ACKNOWLEDGED
THAT THE CENTRAL REASON FOR THE WRIT LAY IN REMEDYING INJUSTICE TO THE
INDIVIDUAL.  RECENT COMMENTATORS HAVE RECOGNIZED THE SAME CORE CONCEPT,
ONE NOTING THAT "WHERE PERSONAL LIBERTY IS INVOLVED, A DEMOCRATIC
SOCIETY . . . INSISTS THAT IT IS LESS IMPORTANT TO REACH AN UNSHAKABLE
DECISION THAN TO DO JUSTICE,"  /10/  AND ANOTHER EXTOLLING THE USE OF
THE WRIT IN LEYRA V. DENNO, 347 U.S. 556 (1954), WITH THE ASSERTION
THAT "(BUT FOR FEDERAL HABEAS CORPUS, THESE TWO MEN WOULD HAVE GONE TO
THEIR DEATHS FOR CRIMES OF WHICH THEY WERE FOUND NOT GUILTY."  /11/ 

I AM AWARE THAT HISTORY REVEALS NO EXACT TIE OF THE WRIT OF HABEAS
CORPUS TO A CONSTITUTIONAL CLAIM RELATING TO INNOCENCE OR GUILT. 
TRADITIONALLY, THE WRIT WAS UNAVAILABLE EVEN FOR MANY CONSTITUTIONAL
PLEAS GROUNDED ON A CLAIMANT'S INNOCENCE, WHILE MANY CONTEMPORARY
PROPONENTS OF EXPANDED EMPLOYMENT OF THE WRIT WOULD PERMIT ITS ISSUANCE
FOR ONE WHOSE DESERVED CONFINEMENT WAS NEVER IN DOUBT.  WE ARE NOW
FACED, HOWEVER, WITH THE TASK OF ACCOMMODATING THE HISTORIC RESPECT FOR
THE FINALITY OF THE JUDGMENT OF A COMMITTING COURT WITH RECENT COURT
EXPANSIONS OF THE ROLE OF THE WRIT.  THIS ACCOMMODATION CAN BEST BE
ACHIEVED, WITH DUE REGARD TO ALL OF THE VALUES IMPLICATED, BY RECOURSE
TO THE CENTRAL REASON FOR HABEAS CORPUS:  THE AFFORDING OF MEANS,
THROUGH AN EXTRAORDINARY WRIT, OF REDRESSING AN UNJUST INCARCERATION. 

FEDERAL HABEAS REVIEW OF SEARCH AND SEIZURE CLAIMS IS RARELY
RELEVANT TO THIS REASON.  PRISONERS RAISING FOURTH AMENDMENT CLAIMS
COLLATERALLY USUALLY ARE QUITE JUSTLY DETAINED.  THE EVIDENCE OBTAINED
FROM SEARCHES AND SEIZURES IS OFTEN "THE CLEAREST PROOF OF GUILT" WITH
A VERY HIGH CONTENT OF RELIABILITY.  /12/  RARELY IS THERE ANY
CONTENTION THAT THE SEARCH RENDERED THE EVIDENCE UNRELIABLE OR THAT ITS
MEANS CAST DOUBT UPON THE PRISONER'S GUILT.  THE WORDS OF MR. JUSTICE
BLACK DRIVE HOME THE POINT: 

"A CLAIM OF ILLEGAL SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT IS
CRUCIALLY DIFFERENT FROM MANY OTHER CONSTITUTIONAL RIGHTS; ORDINARILY
THE EVIDENCE SEIZED CAN IN NO WAY HAVE BEEN RENDERED UNTRUSTWORTHY BY
THE MEANS OF ITS SEIZURE AND INDEED OFTEN THIS EVIDENCE ALONE
ESTABLISHES BEYONE VIRTUALLY ANY SHADOW OF A DOUBT THAT THE DEFENDANT
IS GUILTY."  KAUFMAN V. UNITED STATES, 394 U.S., AT 237 (1969) (BLACK,
J., DISSENTING). 

HABEAS CORPUS REVIEW OF SEARCH AND SEIZURE CLAIMS THUS BRINGS A
DEFICIENCY OF OUR SYSTEM OF CRIMINAL JUSTICE INTO SHARP FOCUS:  A
CONVICTED DEFENDANT ASSERTING NO CONSTITUTIONAL CLAIM BEARING ON
INNOCENCE AND RELYING SOLELY ON AN ALLEGED UNLAWFUL SEARCH, IS NOW
ENTITLED TO FEDERAL HABEAS REVIEW OF STATE CONVICTION AND THE
LIKELIHOOD OF RELEASE IF THE REVIEWING COURT CONCLUDES THAT THE SEARCH
WAS UNLAWFUL.  THAT FEDERAL COURTS WOULD ACTUALLY REDETERMINE
CONSTITUTIONAL CLAIMS BEARING NO RELATION TO THE PRISONER'S INNOCENCE
WITH THE POSSIBILITY OF RELEASING HIM FROM CUSTODY IF THE SEARCH IS
HELD UNLAWFUL NOT ONLY DEFEATS OUR SOCIETAL INTEREST IN A RATIONAL
LEGAL SYSTEM BUT SERVES NO COMPENSATING ENDS OF PERSONAL JUSTICE. 

        IV 

THIS UNPRECEDENTED EXTENSION OF HABEAS CORPUS FAR BEYOND ITS
HISTORIC BOUNDS AND IN DISREGARD OF THE WRIT'S CENTRAL PURPOSE IS AN
ANOMALY IN OUR SYSTEM SOUGHT TO BE JUSTIFIED ONLY BY EXTRINSIC REASONS
WHICH WILL BE ADDRESSED IN PART V OF THIS OPINION.  BUT FIRST LET US
LOOK AT THE COSTS OF THIS ANOMALY--COSTS IN TERMS OF SERIOUS INTRUSIONS
ON OTHER SOCIETAL VALUES.  IT IS THESE OTHER VALUES THAT HAVE BEEN
SUBORDINATED--NOT TO FURTHER JUSTICE ON BEHALF OF ARGUABLY INNOCENT
PERSONS BUT ALL TOO OFTEN TO SERVE MECHANISTIC RULES QUITE UNRELATED TO
JUSTICE IN A PARTICULAR CASE.  NOR ARE THESE NEGLECTED VALUES
UNIMPORTANT TO JUSTICE IN THE BROADEST SENSE OR TO OUR SYSTEM OF
GOVERNMENT.  THEY INCLUDE (I) THE MOST EFFECTIVE UTILIZATION OF LIMITED
JUDICIAL RESOURCES, (II) THE NECESSITY OF FINALITY IN CRIMINAL TRIALS,
(III) THE MINIMIZATION OF FRICTION BETWEEN OUR FEDERAL AND STATE
SYSTEMS OF JUSTICE, AND (IV) THE MAINTENANCE OF THE CONSTITUTIONAL
BALANCE UPON WHICH THE DOCTRINE OF FEDERALISM IS FOUNDED. 

WHEN RAISED ON FEDERAL HABEAS, A CLAIM GENERALLY HAS BEEN CONSIDERED
BY TWO OR MORE TIERS OF STATE COURTS.  IT IS THE SOLEMN DUTY OF THESE
COURTS, NO LESS THAN FEDERAL ONES, TO SAFEGUARD PERSONAL LIBERTIES AND
CONSIDER FEDERAL CLAIMS IN ACCORD WITH FEDERAL LAW.  THE TASK WHICH
FEDERAL COURTS ARE ASKED TO PERFORM ON HABEAS IS THUS MOST OFTEN ONE
THAT HAS OR SHOULD HAVE BEEN DONE BEFORE.  THE PRESUMPTION THAT "IF A
JOB CAN BE WELL DONE ONCE, IT SHOULD NOT BE DONE TWICE" IS SOUND AND
ONE CALCULATED TO UTILIZE BEST "THE INTELLECTUAL, MORAL, AND POLITICAL
RESOURCES INVOLVED IN THE LEGAL SYSTEM."  /13/ 

THOSE RESOURCES ARE LIMITED BUT DEMAND ON THEM CONSTANTLY
INCREASES.  THERE IS AN INSISTENT CALL ON FEDERAL COURTS BOTH IN CIVIL
ACTIONS, MANY NOVEL AND COMPLEX, WHICH AFFECT INTIMATELY THE LIVES OF
GREAT NUMBERS OF PEOPLE AND IN ORIGINAL CRIMINAL TRIALS AND APPEALS
WHICH DESERVE OUR MOST CAREFUL ATTENTION.  /14/  TO THE EXTENT THE
FEDERAL COURTS ARE REQUIRED TO RE-EXAMINE CLAIMS ON COLLATERAL ATTACK,
/15/  THEY DEPRIVE PRIMARY LITIGANTS OF THEIR PROMPT AVAILABILITY AND
MATURE REFLECTION.  AFTER ALL, THE RESOURCES OF OUR SYSTEM ARE FINITE:
THEIR OVEREXTENSION JEOPARDIZES THE CARE AND QUALITY ESSENTIAL TO FAIR
ADJUDICATION. 

THE PRESENT SCOPE OF FEDERAL HABEAS CORPUS ALSO HAS WORKED TO DEFEAT
THE INTEREST OF SOCIETY IN A RATIONAL POINT OF TERMINATION FOR CRIMINAL
LITIGATION.  PROFESSOR AMSTERDAM HAS IDENTIFIED SOME OF THE FINALITY
INTERESTS AT STAKE IN COLLATERAL PROCEEDINGS: 

"THEY INVOLVE (A) DUPLICATION OF JUDICIAL EFFORT; (B) DELAY IN
SETTING THE CRIMINAL PROCEEDING AT REST; (C) INCONVENIENCE AND POSSIBLY
DANGER IN TRANSPORTING A PRISONER TO THE SENTENCING COURT FOR HEARING;
(D) POSTPONED LITIGATION OF FACT, HENCE LITIGATION WHICH WILL OFTEN BE
LESS RELIABLE IN REPRODUCING THE FACTS (I) RESPECTING THE
POSTCONVICTION CLAIM ITSELF, AND (II) RESPECTING THE ISSUE OF GUILT IF
THE COLLATERAL ATTACK SUCCEEDS IN A FORM WHICH ALLOWS RETRIAL.  . . ." 

HE CONCLUDED THAT: 

"(IN COMBINATION, THESE FINALITY CONSIDERATIONS AMOUNT TO A MORE OR
LESS PERSUASIVE ARGUMENT AGAINST THE COGNIZABILITY OF ANY PARTICULAR
COLLATERAL CLAIM, THE STRENGTH OF THE ARGUMENT DEPENDING UPON THE
NATURE OF THE CLAIM, THE MANNER OF ITS TREATMENT (IF ANY) IN THE
CONVICTION PROCEEDINGS, AND THE CIRCUMSTANCES UNDER WHICH COLLATERAL
LITIGATION MUST BE HAD."  /16/ 

NO EFFECTIVE JUDICIAL SYSTEM CAN AFFORD TO CONCEDE THE CONTINUING
THEORETICAL POSSIBILITY THAT THERE IS ERROR IN EVERY TRIAL AND THAT
EVERY INCARCERATION IS UNFOUNDED.  AT SOME POINT THE LAW MUST CONVEY TO
THOSE IN CUSTODY THAT A WRONG HAS BEEN COMMITTED, THAT CONSEQUENT
PUNISHMENT HAS BEEN IMPOSED, THAT ONE SHOULD NO LONGER LOOK BACK WITH
THE VIEW TO RESURRECTING EVERY IMAGINABLE BASIS FOR FURTHER LITIGATION
BUT RATHER SHOULD LOOK FORWARD TO REHABILITATION AND TO BECOME A
CONSTRUCTIVE CITIZEN.  /17/ 

NOWHERE SHOULD THE MERIT OF THIS VIEW BE MORE SELF-EVIDENT THAN IN
COLLATERAL ATTACK ON AN ALLEGEDLY UNLAWFUL SEARCH AND SEIZURE, WHERE
THE PETITIONER OFTEN ASKS SOCIETY TO REDETERMINE A CLAIM WITH NO
RELATIONSHIP AT ALL TO THE JUSTNESS OF HIS CONFINEMENT.  PROFESSOR
AMSTERDAM HAS NOTED THAT "FOR REASONS WHICH ARE COMMON TO ALL SEARCH
AND SEIZURE CLAIMS," HE "WOULD HOLD EVEN A SLIGHT FINALITY INTEREST
SUFFICIENT TO DENY THE COLLATERAL REMEDY."  /18/  BUT, IN FACT, A
STRONG FINALITY INTEREST MILITATES AGAINST ALLOWING COLLATERAL REVIEW
OF SEARCH AND SEIZURE CLAIMS.  APART FROM THE DUPLICATION OF RESOURCES
INHERENT IN MOST HABEAS CORPUS PROCEEDINGS, THE VALIDITY OF A SEARCH
AND SEIZURE CLAIM FREQUENTLY HINGES ON A COMPLEX MATRIX OF EVENTS WHICH
MAY BE DIFFICULT INDEED FOR THE HABEAS COURT TO DISINTER ESPECIALLY
WHERE, AS OFTEN HAPPENS, THE TRIAL OCCURRED YEARS BEFORE THE COLLATERAL
ATTACK AND THE STATE RECORD IS THINLY SKETCHED.  /19/ 

FINALLY, THE PRESENT SCOPE OF HABEAS CORPUS TENDS TO UNDERMINE THE
VALUES INHERENT IN OUR FEDERAL SYSTEM OF GOVERNMENT.  TO THE EXTENT
THAT EVERY STATE CRIMINAL JUDGMENT IS TO BE SUBJECT INDEFINITELY TO
BROAD AND REPETITIVE FEDERAL OVERSIGHT, WE RENDER THE ACTIONS OF STATE
COURTS A SERIOUS DISRESPECT IN DEROGATION OF THE CONSTITUTIONAL BALANCE
BETWEEN THE TWO SYSTEMS.  /20/  THE PRESENT EXPANSIVE SCOPE OF FEDERAL
HABEAS REVIEW HAS PROMPTED NO SMALL FRICTION BETWEEN STATE AND FEDERAL
JUDICIARIES.  JUSTICE PAUL C. REARDON OF THE MASSACHUSETTS SUPREME
JUDICIAL COURT AND THEN PRESIDENT OF THE NATIONAL CENTER FOR STATE
COURTS, IN IDENTIFYING PROBLEMS BETWEEN THE TWO SYSTEMS, NOTED BLUNTLY
THAT "(THE FIRST, WITHOUT QUESTION, IS THE EFFECT OF FEDERAL HABEAS
CORPUS PROCEEDINGS ON STATE COURTS."  HE SPOKE OF THE "HUMILIATION OF
REVIEW FROM THE FULL BENCH OF THE HIGHEST STATE APPELLATE COURT TO A
SINGLE UNITED STATES DISTRICT COURT JUDGE."  SUCH BROAD FEDERAL HABEAS
POWERS ENCOURAGE IN HIS VIEW THE "GROWING DENIGRATION OF THE STATE
COURTS AND THEIR FUNCTIONS IN THE PUBLIC MIND."  /21/  IN SO SPEAKING
JUSTICE REARDON ECHOED THE WORDS OF PROFESSOR BATOR: 

"I COULD IMAGINE NOTHING MORE SUBVERSIVE OF A JUDGE'S SENSE OF
RESPONSIBILITY, OF THE INNER SUBJECTIVE CONSCIENTIOUSNESS WHICH IS SO
ESSENTIAL A PART OF THE DIFFICULT AND SUBTLE ART OF JUDGING WELL, THAN
AN INDISCRIMINATE ACCEPTANCE OF THE NOTION THAT ALL THE SHOTS WILL
ALWAYS BE CALLED BY SOMEONE ELSE."  /22/ 

IN MY VIEW, THIS COURT HAS FEW MORE PRESSING RESPONSIBILITIES THAN
TO RESTORE THE MUTUAL RESPECT AND THE BALANCED SHARING OF
RESPONSIBILITY BETWEEN THE STATE AND FEDERAL COURTS WHICH OUR TRADITION
AND THE CONSTITUTION ITSELF SO WISELY CONTEMPLATE.  THIS CAN BE
ACCOMPLISHED WITHOUT RETREAT FROM OUR INHEREITED INSISTENCE THAT THE
WRIT OF HABEAS CORPUS RETAIN ITS FULL VITALITY AS A MEANS OF REDRESSING
INJUSTICE. 

THIS CASE INVOLVES ONLY A RELATIVELY NARROW ASPECT OF THE
APPROPRIATE REACH OF HABEAS CORPUS.  THE SPECIFIC ISSUE BEFORE US, AND
THE ONLY ONE THAT NEED BE DECIDED AT THIS TIME, IS THE EXTENT TO WHICH
A STATE PRISONER MAY OBTAIN FEDERAL HABEAS CORPUS REVIEW OF A FOURTH
AMENDMENT CLAIM.  WHATEVER MAY BE FORMULATED AS A MORE COMPREHENSIVE
ANSWER TO THE IMPORTANT BROADER ISSUES (WHETHER BY CLARIFYING
LEGISLATION OR IN SUBSEQUENT DECISIONS), MR. JUSTICE BLACK HAS
SUGGESTED WHAT SEEMS TO ME TO BE THE APPROPRIATE THRESHOLD REQUIREMENT
IN A CASE OF THIS KIND:     "I WOULD ALWAYS REQUIRE THAT THE CONVICTED
DEFENDANT RAISE THE KIND OF CONSTITUTIONAL CLAIM THAT CASTS SOME SHADOW
OF A DOUBT ON HIS GUILT."  KAUFMAN V. UNITED STATES, 394 U.S., AT 242
(DISSENTING OPINION).  IN A PERCEPTIVE ANALYSIS, JUDGE HENRY J.
FRIENDLY EXPRESSED A SIMILAR VIEW.  HE WOULD DRAW THE LINE AGAINST
HABEAS CORPUS REVIEW IN THE ABSENCE OF A "COLORABLE CLAIM OF
INNOCENCE": 

"(WITH A FEW IMPORTANT EXCEPTIONS, CONVICTIONS SHOULD BE SUBJECT TO
COLLATERAL ATTACK ONLY WHEN THE PRISONER SUPPLEMENTS HIS CONSTITUTIONAL
PLEA WITH A COLORABLE CLAIM OF INNOCENCE."  /23/ 

WHERE THERE IS NO CONSTITUTIONAL CLAIM BEARING ON INNOCENCE, THE
INQUIRY OF THE FEDERAL COURT ON HABEAS REVIEW OF A STATE PRISONER'S
FOURTH AMENDMENT CLAIM SHOULD BE CONFINED SOLELY TO THE QUESTION
WHETHER THE DEFENDANT WAS PROVIDED A FAIR OPPORTUNITY IN THE STATE
COURTS TO RAISE AND HAVE ADJUDICATED THE FOURTH AMENDMENT CLAIM. 
LIMITING THE SCOPE OF HABEAS REVIEW IN THIS MANNER WOULD REDUCE THE
ROLE OF THE FEDERAL COURTS IN DETERMINING THE MERITS OF CONSTITUTIONAL
CLAIM WITH NO RELATION TO A PETITIONER'S INNOCENCE AND CONTRIBUTE TO
THE RESTORATION OF RECENTLY NEGLECTED VALUES TO THEIR PROPER PLACE IN
OUR CRIMINAL JUSTICE SYSTEM. 

        V 

THE IMPORTANCE OF THE VALUES REFERRED TO ABOVE IS NOT QUESTIONED. 
WHAT, THEN, IS THE REASON WHICH HAS PROMPTED THIS COURT IN RECENT
DECISIONS TO EXTEND HABEAS CORPUS TO FOURTH AMENDMENT CLAIMS LARGELY IN
DISREGARD OF ITS HISTORY AS WELL AS THESE VALUES?  IN ADDRESSING MR.
JUSTICE BLACK'S DISSENTING VIEW THAT CONSTITUTIONAL CLAIMS RAISED
COLLATERALLY SHOULD BE RELEVANT TO THE PETITIONER'S INNOCENCE, THE
MAJORITY IN KAURMAN NOTED: 

"IT (MR. JUSTICE BLACK'S VIEW) BRINGS INTO QUESTION THE PROPRIETY OF
THE EXCLUSIONARY RULE ITSELF.  THE APPLICATION OF THAT RULE IS NOT MADE
TO TURN ON THE EXISTENCE OF A POSSIBILITY OF INNOCENCE; RATHER,
EXCLUSION OF ILLEGALLY OBTAINED EVIDENCE IS DEEMED NECESSARY TO PROTECT
THE RIGHT OF ALL CITIZENS, NOT MERELY THE CITIZEN ON TRIAL, TO BE
SECURE AGAINST UNREASONABLE SEARCHES AND SEIZURES."  394 U.S., AT 229. 

THE EXCLUSIONARY RULE HAS OCCASIONED MUCH CRITICISM, LARGELY ON
GROUNDS THAT ITS APPLICATION PERMITS GUILTY DEFENDANTS TO GO FREE AND
LAW-BREAKING OFFICERS TO GO UNPUNISHED.  /24/  THE OFT-ASSERTED REASON
FOR THE RULE IS TO DETER ILLEGAL SEARCHES AND SEIZURES BY THE POLICE,
ELKINS V. UNITED STATES, 364 U.S. 206, 217 (1960); MAPP V. OHIO, 367
U.S. 643, 656 (1961); LINKLETTER V. WALKER, 381 U.S. 618, 636 (1965);
TERRY V. OHIO, 392 U.S. 1, 29 (1968).  /25/  THE EFFICACY OF THIS
DETERRENT FUNCTION, HOWEVER, HAS BEEN BROUGHT INTO SERIOUS QUESTION BY
RECENT EMPIRICAL RESEARCH.  WHATEVER THE RULE'S MERITS ON AN INITIAL
TRIAL AND APPEAL /26/  --A QUESTION NOT IN ISSUE HERE--THE CASE FOR
COLLATERAL APPLICATION OF THE RULE IS AN ANEMIC ONE.  ON COLLATERAL
ATTACK, THE EXCLUSIONARY RULE RETAINS ITS MAJOR LIABILITIES WHILE THE
ASSERTED BENEFIT OF THE RULE DISSOLVES.  FOR WHATEVER DETERRENT
FUNCTION THE RULE MAY SERVE WHEN APPLIED ON TRIAL AND APPEAL BECOMES
GREATLY ATTENUATED WHEN, MONTHS OR YEARS AFTERWARD, THE CLAIM SURFACES
FOR COLLATERAL REVIEW.  THE IMPERMISSIBLE CONDUCT HAS LONG SINCE
OCCURRED, AND THE BELATED WRIST SLAP OF STATE POLICE BY FEDERAL COURTS
HARMS NO ONE BUT SOCIETY ON WHOM THE CONVICTED CRIMINAL IS NEWLY
RELEASED.  /27/ 

SEARCHES AND SEIZURES ARE AN OPAQUE AREA OF THE LAW:  FLAGRANT
FOURTH AMENDMENT ABUSES WILL RARELY ESCAPE DETECTION BUT THERE IS A
VAST TWILIGHT ZONE WITH RESPECT TO WHICH ONE JUSTICE HAS STATED THAT
OUR OWN "DECISIONS . . . ARE HARDLY NOTABLE FOR THEIR PREDICTABILITY,"
/28/  AND ANOTHER HAS OBSERVED THAT THIS COURT WAS "'BIFURCATING
ELEMENTS TOO INFINITESIMAL TO BE SPLIT.'"  /29/  SERIOUS FOURTH
AMENDMENT INFRACTIONS CAN BE DEALT WITH BY STATE JUDGES OR BY THIS
COURT ON DIRECT REVIEW.  BUT THE NONFRIVOLOUIS FOURTH AMENDMENT CLAIMS
THAT SURVIVE FOR COLLATERAL ATTACK ARE MOST LIKELY TO BE IN THIS GRAY,
TWILIGHT AREA, WHERE THE LAW IS DIFFICULT FOR COURTS TO APPLY, LET
ALONE FOR THE POLICEMAN ON THE BEAT TO UNDERSTAND.  THIS IS PRECISELY
THE TYPE OF CASE WHERE THE DETERRENT FUNCTION OF THE EXCLUSIONARY RULE
IS LEAST EFFICACIOUS, AND WHERE THERE IS THE LEAST JUSTIFICATION FOR
FREEING A DULY CONVICTED DEFENDANT.  /30/ 

OUR DECISIONS HAVE NOT ENCOURAGED THE THOUGHT THAT WHAT MAY BE AN
APPROPRIATE CONSTITUTIONAL POLICY IN ONE CONTEXT AUTOMATICALLY BECOMES
SUCH FOR ALL TIMES AND ALL SEASONS.  IN LINKLETTER V. WALKER, 381 U.S.,
AT 629, THE COURT RECOGNIZED THE COMPELLING PRACTICAL CONSIDERATIONS
AGAINST RETROACTIVE APPLICATION OF THE EXCLUSIONARY RULE.  RATHER THAN
VIEWING THE RULE AS HAVING ETERNAL CONSTITUTIONAL VERITY, THE COURT
DECIDED TO 

"WEIGH THE MERITS AND DEMERITS IN EACH CASE BY LOOKING TO THE PRIOR
HISTORY OF THE RULE IN QUESTION, ITS PURPOSE AND EFFECT, AND WHETHER
RETROSPECTIVE OPERATION WILL FURTHER OR RETARD ITS OPERATION.  WE
BELIEVE THAT THIS APPROACH IS PARTICULARLY CORRECT WITH REFERENCE TO
THE FOURTH AMENDMENT'S PROHIBITIONS AS TO UNREASONABLE SEARCHES AND
SEIZURES."  ID., AT 629. 

SUCH A PRAGMATIC APPROACH COMPELLED THE COURT TO CONCLUDE THAT THE
RULE'S DETERRENT FUNCTION WOULD NOT BE ADVANCED BY ITS RETROSPECTIVE
APPLICATION: 

"THE MISCONDUCT OF THE POLCIE PRIOR TO MAPP HAS ALREADY OCCURRED AND
WILL NOT BE CORRECTED BY RELEASING THE PRISONERS INVOLVED.  . . .
FINALLY, THE RUPTURED PRIVACY OF THE VICTIMS'  HOMES AND EFFECTS CANNOT
BE RESTORED.  REPARATION COMES TOO LATE."  ID., AT 637.  SEE ALSO
DESIST V. UNITED STATES, 394 U.S. 244 (1969). 

THE SAME PRACTICAL, PARTICULARIZED ANALYSIS OF THE EXCLUSIONARY
RULE'S NECESSARY ALSO WAS EVIDENT IN WALDER V. UNITED STATES, 347 U.S.
62 (1954), WHEN THE COURT PERMITTED THE GOVERNMENT TO UTILIZE
UNLAWFULLY SEIZED EVIDENCE TO IMPEACH THE CREDIBILITY OF A DEFENDANT
WHO HAD FIRST TESTIFIED BROADLY IN HIS OWN DEFENSE.  THE COURT HELD, IN
EFFECT, THAT THE POLICIES PROTECTED BY THE EXCLUSIONARY RULE WERE
OUTWEIGHED IN THIS CASE BY THE NEED TO PREVENT PERJURY AND ASSURE THE
INTEGRITY OF PROCEEDINGS AT TRIAL.  THE COURT CONCLUDED THAT TO APPLY
THE EXCLUSIONARY RULE IN SUCH CIRCUMSTANCES "WOULD BE A PERVERSION OF
THE FOURTH AMENDMENT."  ID., AT 65.  THE JUDGMENT IN WALDER REVEALED
MOST POINTEDLY THAT THE POLICIES BEHIND THE EXCLUSIONARY RULE ARE
NEITHER ABSOLUTE NOR ALL-ENCOMPASSING, BUT RATHER MUST BE WEIGHED AND
BALANCED AGAINST A COMPETING AND MORE COMPELLING POLICY, NAMELY THE
NEED FOR EFFECTIVE DETERMINATION OF TRUTH AT TRIAL. 

IN SUM:  THE CASE FOR THE EXCLUSIONARY RULE VARIES WITH THE SETTING
IN WHICH IT IS IMPOSED.  IT MAKES LITTLE SENSE TO EXTEND THE MAPP
EXCLUSIONARY RULE TO A FEDERAL HABEAS PROCEEDING WHERE ITS ASSERTED
DETERRENT EFFECT MUST BE LEAST EFFICACIOUS, AND ITS OBVIOUS HARMFUL
CONSEQUENCES PERSIST IN FULL FORCE. 

        VI 

THE FINAL INQUIRY IS WHETHER THE ABOVE POSITION CONFORMS TO 28
U.S.C. ^ 2254 (A) WHICH PROVIDES: 

     "THE SUPREME COURT, A JUSTICE THEREOF, A CIRCUIT JUDGE, OR A

  DISTRICT COURT SHALL ENTERTAIN AN APPLICATION FOR A WRIT OF

  HABEAS CORPUS IN BEHALF OF A PERSON IN CUSTODY PURSUANT TO THE

  JUDGMENT OF A STATE COURT ONLY ON THE GROUND THAT HE IS IN

  CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS OR TREATIES OF

  THE UNITED STATES." 

THE TREND IN RECENT YEARS HAS WITNESSED A PROLIFERATION OF
CONSTITUTIONAL RIGHTS, "A VAST EXPANSION OF THE CLAIMS OF ERROR IN
CRIMINAL CASES FOR WHICH A RESOURCEFUL DEFENSE LAWYER CAN FIND A
CONSTITUTIONAL BASIS."  /31/  FEDERAL HABEAS JURISDICTION HAS BEEN
EXTENDED FAR BEYOND ANYONE'S EXPECTATIONS OR INTENDMENT WHEN THE
CONCEPT OF "CUSTODY IN VIOLATION OF THE CONSTITUTION," NOW IN ^ 2254
(A), FIRST APPEARED IN FEDERAL LAW OVER A CENTURY AGO.  /32/ 

MR. JUSTICE BLACK WAS CLEARLY CORRECT IN NOTING THAT "NOT EVERY
CONVICTION BASED IN PART ON A DENIAL OF A CONSTITUTIONAL RIGHT IS
SUBJECT TO ATTACK BY HABEAS CORPUS OR ^ 2255 PROCEEDINGS AFTER A
CONVICTION HAS BECOME FINAL."  KAUFMAN, 394 U.S., AT 232 (BLACK, J.,
DISSENTING).  NO EVIDENCE EXISTS THAT CONGRESS INTENDED EVERY
ALLEGATION OF A CONSTITUTIONAL VIOLATION TO AFFORD AN APPROPRIATE BASIS
FOR COLLATERAL REVIEW:  INDEED, THE LATEST REVISIONS OF THE FEDERAL
HABEAS CORPUS STATUTE IN 1966 /33/  AND THE ENACTMENT OF ^ 2254 (A)
CAME AT THE TIME A MAJORITY OF THE COURTS OF APPEALS HELD THAT CLAIMS
OF UNLAWFUL SEARCH AND SEIZURE "'ARE NOT PROPER MATTERS TO BE PRESENTED
BY A MOTION TO VACATE SENTENCE UNDER ^ 2255 BUT CAN ONLY BE PROPERLY
PRESENTED BY APPEAL FROM THE CONVICTION.'"  ID., AT 220, QUOTING WARREN
V. UNITED STATES, 311 F. 2D 673, 675 (CA8 1963).  /34/  THOUGH THE
PRECISE DISCUSSION IN KAUFMAN CONCERNED THE CLAIMS OF FEDERAL PRISONERS
UNDER ^ 2255, THE THEN-EXISTING PRINCIPLE OF A DISTINCTION BETWEEN
REVIEW OF SEARCH AND SEIZURE CLAIMS IN DIRECT AND COLLATERAL
PROCEEDINGS CLEARLY EXISTED. 

THERE IS NO INDICATION THAT CONGRESS INTENDED TO WIPE OUT THIS
DISTINCTION.  INDEED, THE BROAD PURPOSE OF THE 1966 AMENDMENTS POINTED
IN THE OPPOSITE DIRECTION.  THE REPORT OF THE SENATE JUDICIARY
COMMITTEE NOTES THAT: 

     "ALTHOUGH ONLY A SMALL NUMBER OF THESE (HABEAS) APPLICATIONS

  HAVE BEEN FOUND MERITORIOUS, THE APPLICATIONS IN THEIR TOTALITY

HAVE IMPOSED A HEAVY BURDEN ON THE FEDERAL COURTS.  . . . THE BILL

  SEEKS TO ALLEVIATE THE UNNECESSARY BURDEN BY INTRODUCING A

  GREATER DEGREE OF FINALITY OF JUDGMENTS IN HABEAS CORPUS

  PROCEEDINGS."  S. REP. NO. 1797, 89TH CONG., 2D SESS., 2 (1966). 

  /35/

THE HOUSE REPORT STATES SIMILARLY THAT: 

"WHILE IN ONLY A SMALL NUMBER OF THESE APPLICATIONS HAVE THE
PETITIONERS BEEN SUCCESSFUL, THEY NEVERTHELESS HAVE NOT ONLY IMPOSED AN
UNNECESSARY BURDEN ON THE WORK OF THE FEDERAL COURTS BUT HAVE ALSO
GREATLY INTERFERED WITH THE PROCEDURES AND PROCESSES OF THE STATE
COURTS BY DENYING, IN MANY CASES, THE PROPER ENFORCEMENT OF THEIR
JUDGMENTS."  H. R. REP. NO. 1892, 89TH CONG., 2D SESS., 5 (1966). 

THIS MOST RECENT CONGRESSIONAL EXPRESSION ON THE SCOPE OF FEDERAL
HABEAS CORPUS REFLECTED THE SENTIMENT, SHARED ALIKE BY JUDGES AND
LEGISLATORS, THAT THE WRIT HAS OVERRUN ITS HISTORICAL BANKS TO INUNDATE
THE DOCKETS OF FEDERAL COURTS AND DENIGRATE THE ROLE OF STATE COURTS. 
THOUGH CONGRESS DID NOT ADDRESS THE PRECISE QUESTION AT HAND, NOTHING
IN ^ 2254 (A), THE STATE OF THE LAW AT THE TIME OF ITS ADOPTION, OR THE
HISTORICAL USES OF THE LANGUAGE "CUSTODY IN VIOLATION OF THE
CONSTITUTION" FROM WHICH ^ 2254 (A) IS DERIVED, /36/  COMPELS A HOLDING
THAT RULING OF STATE COURTS ON CLAIMS OF UNLAWFUL SEARCH AND SEIZURE
MUST BE REVIEWED AND REDETERMINED IN COLLATERAL PROCEEDINGS. 

        VII 

PERHAPS NO SINGLE DEVELOPMENT OF THE CRIMINAL LAW HAS HAD
CONSEQUENCES SO PROFOUND AS THE ESCALATING USE, OVER THE PAST TWO
DECADES, OF FEDERAL HABEAS CORPUS TO REOPEN THE READJUDICATE STATE
CRIMINAL JUDGMENTS.  I HAVE COMMENTED IN PART IV ABOVE ON THE FAR
REACHING CONSEQUENCES:  THE BURDEN ON THE SYSTEM, /37/  IN TERMS OF
DEMANDS ON THE COURTS, PROSECUTORS, DEFENSE ATTORNEYS, AND OTHER
PERSONNEL AND FACILITIES; THE ABSENCE OF EFFICIENCY AND FINALITY IN THE
CRIMINAL PROCESS, FRUSTRATING BOTH THE DETERMINATION; THE UNDUE
SUBORDINATION OF STATE COURTS, WITH THE RESULTING EXACERBATION OF STATE
FEDERAL RELATIONS; AND THE SUBTLE EROSION OF THE DOCTRINE OF FEDERALISM
ITSELF.  PERHAPS THE SINGLE MOST DISQUIETING CONSEQUENCE OF OPEN-ENDED
HABEAS REVIEW IS REFLECTED IN THE PRESCIENCE OF MR. JUSTICE JACKSON'S
WARNING THAT "(IT MUST PREJUDICE THE OCCASIONAL MERITORIOUS APPLICATION
TO BE BURIED IN A FLOOD OF WORTHLESS ONES."  /38/ 

IF THESE CONSEQUENCES FLOWED FROM THE SAFEGUARDING OF CONSTITUTIONAL
CLAIMS OF INNOCENCE THEY SHOULD, OF COURSE, BE ACCEPTED AS A TOLERABLE
PRICE TO PAY FOR CHERISHED STANDARDS OF JUSTICE AT THE SAME TIME THAT
EFFORTS ARE PURSUED TO FIND MORE RATIONAL PROCEDURES.  YET, AS
ILLUSTRATED BY THE CASE BEFORE US TODAY, THE QUESTION ON HABEAS CORPUS
IS TOO RARELY WHETHER THE PRISONER WAS INNOCENT OF THE CRIME FOR WHICH
HE WAS CONVICTED /39/  AND TOO FREQUENTLY WHETHER SOME EVIDENCE OF
UNDOUBTED PROBATIVE VALUE HAS BEEN ADMITTED IN VIOLATION OF AN
EXCLUSIONARY RULE RITUALISTICALLY APPLIED WITHOUT DUE REGARD TO WHETHER
IT HAS THE SLIGHTEST LIKELIHOOD OF ACHIEVING ITS AVOWED PROPHYLACTIC
PURPOSE. 

IT IS THIS PARADOX OF A SYSTEM, WHICH SO OFTEN SEEMS TO SUBORDINATE
SUBSTANCE TO FORM, THAT INCREASINGLY PROVOKES CRICITISM AND LACK OF
CONFIDENCE.  INDEED, IT IS DIFFICULT TO EXPLAIN WHY A SYSTEM OF
CRIMINAL JUSTICE DESERVES RESPECT WHICH ALLOWS REPETITIVE REVIEWS OF
CONVICTIONS LONG SINCE HELD TO HAVE BEEN FINAL AT THE END OF THE NORMAL
PROCESS OF TRIAL AND APPEAL WHERE THE BASIS FOR RE-EXAMINATION IS NOT
EVEN THAT THE CONVICTED DEFENDANT WAS INNOCENT.  THERE HAS BEEN A HALO
ABOUT THE "GREAT WRIT" THAT NO ONE WOULD WITH TO DIM.  YET ONE MUST
WONDER WHETHER THE STRETCHING OF ITS USE FAR BEYOND ANY JUSTIFIABLE
PURPOSE WILL NOT IN THE END WEAKEN RATHER THAN STRENGTHEN THE WRIT'S
VITALITY. 

/1/  CASES CITED AS EXAMPLES INCLUDED MANCUSI V. DEFORTE, 392 U.S.
364 (1968); CARAFAS V. LAVALLEE, 391 U.S. 234 (1968); WARDEN V. HAYDEN,
387 U.S. 294 (1967). 

/2/  THE ACT OF FEB. 5, 1867, C. 28, ^ 1, 14 STAT. 385, PROVIDED
THAT:  "THE SEVERAL COURTS OF THE UNITED STATES . . . WITHIN THEIR
RESPECTIVE JURISDICTIONS, IN ADDITION TO THE AUTHORITY ALREADY
CONFERRED BY LAW, SHALL HAVE POWER TO GRANT WRITS OF HABEAS CORPUS IN
ALL CASES WHERE ANY PERSON MAY BE RESTRAINED OF HIS OR HER LIBERTY IN
VIOLATION OF THE CONSTITUTION, OR OF ANY TREATY OR LAW OF THE UNITED
STATES . . . ." 

FEDERAL HABEAS REVIEW FOR THOSE IN STATE CUSTODY IS NOW AUTHORIZED
BY 28 U.S.C. ^ 2254 (A):     "THE SUPREME COURT, A JUSTICE THEREOF, A
CIRCUIT JUDGE, OR A DISTRICT COURT SHALL ENTERTAIN AN APPLICATION FOR A
WRIT OF HABEAS CORPUS IN BEHALF OF A PERSON IN CUSTODY PURSUANT TO THE
JUDGMENT OF A STATE COURT ONLY ON THE GROUND THAT HE IS IN CUSTODY IN
VIOLATION OF THE CONSTITUTION OR LAWS OR TREATIES OF THE UNITED
STATES." 

/3/  BATOR, FINALITY IN CRIMINAL LAW AND FEDERAL HABEAS CORPUS FOR
STATE PRISONERS, 76 HARV. L. REV. 441, 466 (1963); OAKS, LEGAL HISTORY
IN THE HIGH COURT--HABEAS CORPUS, 64 MICH. L. REV. 451, 451 - 456
(1966). 

/4/  OAKS, SUPRA, N. 3, AT 452.     /5/  PROFESSOR PAUL M. BATOR OF
HARVARD LAW SCHOOL AND PROFESSOR DALLIN H. OAKS FORMERLY OF THE
UNIVERSITY OF CHICAGO SCHOOL OF LAW.  CITATIONS TO THE RELEVANT
ARTICLES ARE IN N. 3, SUPRA. 

/6/  OAKS, SUPRA, N. 3, AT 468. 

/7/  BATOR, SUPRA, N. 3, AT 475 - 476. 

/8/  ID., AT 475. 

/9/  H. R. REP. NO. 730, 48TH CONG., 1ST SESS., 5 (1884), QUOTED IN
BATOR, SUPRA, N. 3, AT 477. 

/10/  POLLAK, PROPOSALS TO CURTAIL FEDERAL HABEAS CORPUS FOR STATE
PRISONERS:  COLLATERAL ATTACK ON THE GREAT WRIT, 66 YALE L. J. 50, 65
(1956). 

/11/  REITZ, FEDERAL HABEAS CORPUS:  POSTCONVICTION REMEDY FOR STATE
PRISONERS, 108 U. PA. L. REV. 461, 497 (1960). 

/12/  FRIENDLY, IS INNOCENCE IRRELEVANT?  COLLATERAL ATTACK ON
CRIMINAL JUDGMENTS, 38 U. CHI.  L. REV. 142, 160 (1970). 

/13/  BATOR, SUPRA, N. 3, AT 451. 

THE CONVENTIONAL JUSTIFICATIONS FOR EXTENDING FEDERAL HABEAS CORPUS
TO AFFORD COLLATERAL REVIEW OF STATE COURT JUDGMENTS WERE SUMMARIZED IN
KAUFMAN V. UNITED STATES, 394 U.S. 217, 225 - 226, AS FOLLOWS: "(THE
NECESSITY THAT FEDERAL COURTS HAVE THE 'LAST SAY' WITH RESPECT TO
QUESTIONS OF FEDERAL LAW, THE INADEQUACY OF STATE PROCEDURES TO RAISE
AND PRESERVE FEDERAL CLAIMS, THE CONCERN THAT STATE JUDGES MAY BE
UNSYMPATHETIC TO FEDERALLY CREATED RIGHTS, THE INSTITUTIONAL
CONSTRAINTS ON THE EXERCISE OF THIS COURT'S CERTIORARI JURISDICTION TO
REVIEW STATE CONVICTIONS . . . ."  EACH OF THESE JUSTIFICATIONS HAS
MERIT IN CERTAIN SITUATIONS, ALTHOUGH THE ASSERTED INADEQUACY OF STATE
PROCEDURES AND UNSYMPATHETIC ATTITUDE OF STATE JUDGES ARE FAR LESS
REALISTIC GROUNDS OF CONCERN THAN IN YEARS PAST.  THE ISSUE,
FUNDAMENTALLY, IS ONE OF PERSPECTIVE AND A RATIONAL BALANCING.  THE
APPROPRIATENESS OF FEDERAL COLLATERAL REVIEW IS EVIDENT IN MANY
INSTANCES.  BUT IT HARDLY FOLLOWS THAT, IN ORDER TO PROMOTE THE ENDS OF
INDIVIDUAL JUSTICE WHICH ARE THE FOREMOST CONCERNS OF THE WRIT, IT IS
NECESSARY TO EXTEND THE SCOPE OF HABEAS REVIEW INDISCRIMINATELY.  THIS
IS ESPECIALLY TRUE WITH RESPECT TO FEDERAL REVIEW OF FOURTH AMENDMENT
CLAIMS WITH THE CONSEQUENT DENIGRATION OF OTHER IMPORTANT SOCIETAL
VALUES AND INTERESTS. 

/14/  BRIEFLY, CIVIL FILINGS IN THE UNITED STATES DISTRICT COURTS
INCREASED FROM 58,293 IN 1961 TO 96,173 IN 1972.  TOTAL APPEALS
COMMENCED IN THE UNITED STATES COURTS OF APPEALS ADVANCED FROM 4,204 IN
1961 TO 14,535 IN 1972.  PETITIONS FOR FEDERAL HABEAS CORPUS FILED BY
STATE PRISONERS JUMPED FROM 1,020 IN 1961 TO 7,949 IN 1972.  THOUGH
HABEAS PETITIONS FILED BY STATE PRISONERS DID DECLINE FROM 9,063 IN
1970 TO 7,949 IN 1972, THE OVERALL INCREASE FROM 1,000 AT THE START OF
THE LAST DECADE IS FORMIDABLE.  FURTHERMORE, CIVIL RIGHTS PRISONER
PETITIONS UNDER 42 U.S.C. ^ 1983 INCREASED FROM 1,072 TO 3,348 IN THE
PAST FIVE YEARS.  SOME OF THESE CHALLENGED THE FACT AND DURATION OF
CONFINEMENT AND SOUGHT RELEASE FROM PRISON AND MUST NOW BE BROUGHT AS
ACTIONS FOR HABEAS CORPUS, PREISER V. RODRIGUEZ, 411 U.S. 475 (1973). 
SEE 1972 ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS II-5, II-22, II-28-32. 

/15/  MR. CHIEF JUSTICE BURGER HAS ILLUSTRATED THE ABSURD EXTENT TO
WHICH RELITIGATION IS SOMETIMES ALLOWED: "IN SOME OF THESE MULTIPLE
TRIAL AND APPEAL CASES (ON COLLATERAL ATTACK) THE ACCUSED CONTINUED HIS
WARFARE WITH SOCIETY FOR EIGHT, NINE, TEN YEARS AND MORE.  IN ONE CASE
. . . MORE THAN FIFTY APPELLATE JUDGES REVIEWED THE CASE ON APPEALS." 
ADDRESS BEFORE THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK,
N.Y.L.J., FEB. 19, 1970, P. 1. 

THE ENGLISH COURTS, "LONG ADMIRED FOR (THEIR) FAIR TREATMENT OF
ACCUSED PERSONS," HAVE NEVER SO EXTENDED HABEAS CORPUS.  FRIENDLY,
SUPRA, N. 12, AT 145. 

/16/  AMSTERDAM, SEARCH, SEIZURE, AND SECTION 2255:  A COMMENT, 112
U. PA. L. REV. 378, 383 - 384 (1964).  THE ARTICLE ADDRESSES THE
PROBLEM OF COLLATERAL RELIEF FOR FEDERAL PRISONERS, BUT ITS RATIONALE
APPLIES FORCEFULLY TO FEDERAL HABEAS FOR STATE PRISONERS AS WELL. 

/17/  MR. JUSTICE HARLAN PUT IT VERY WELL: "BOTH THE INDIVIDUAL
CRIMINAL DEFENDANT AND SOCIETY HAVE AN INTEREST IN INSURING THAT THERE
WILL AT SOME POINT BE THE CERTAINTY THAT COMES WITH AN END TO
LITIGATION, AND THAT ATTENTION WILL ULTIMATELY BE FOCUSED NOT ON
WHETHER A CONVICTION WAS FREE FROM ERROR BUT RATHER ON WHETHER THE
PRISONER CAN BE RESTORED TO A USEFUL PLACE IN THE COMMUNITY."  SANDERS
V. UNITED STATES, 373 U.S. 1, 24 - 25 (1963) (DISSENTING OPINION). 

/18/  SUPRA, N. 16, AT 388. 

/19/  THE LATTER OCCURS FOR VARIOUS REASONS, NAMELY, FAILURE OF THE
ACCUSED TO RAISE THE CLAIM AT TRIAL, A DETERMINATION BY THE STATE
COURTS THAT THE CLAIM DID NOT MERIT A HEARING, OR A RECENT DECISION OF
THIS COURT EXTENDING RIGHTS OF THE ACCUSED (ALTHOUGH, ON FOURTH
AMENDMENT CLAIMS, SUCH DECISIONS HAVE SELDOM BEEN APPLIED
RETROACTIVELY, SEE, E. G., LINKLETTER V. WALKER, 381 U.S. 618 (1965)). 

/20/  THE DISPERSION OF POWER BETWEEN STATE AND FEDERAL GOVERNMENTS
IS CONSTITUTIONALLY PREMISED, AS MR. JUSTICE HARLAN OBSERVED:  "(IT
WOULD SURELY BE SHALLOW NOT TO RECOGNIZE THAT THE STRUCTURE OF OUR
POLITICAL SYSTEM ACCOUNTS NO LESS FOR THE FREE SOCIETY WE HAVE. 
INDEED, IT WAS UPON THE STRUCTURE OF GOVERNMENT THAT THE FOUNDERS
PRIMARILY FOCUSED IN WRITING THE CONSTITUTION.  OUT OF BITTER
EXPERIENCE THEY WERE SUSPICIOUS OF EVERY FORM OF ALL-POWERFUL CENTRAL
AUTHORITY AND THEY SOUGHT TO ASSURE THAT SUCH A GOVERNMENT WOULD NEVER
EXIST IN THIS COUNTRY BY STRUCTURING THE FEDERAL ESTABLISHMENT SO AS TO
DIFFUSE POWER BETWEEN THE EXECUTIVE, LEGISLATIVE, AND JUDICIAL
BRANCHES.  THE DIFFUSION OF POWER BETWEEN FEDERAL AND STATE AUTHORITY
SERVES THE SAME ENDS AND TAKES ON ADDED SIGNIFICANCE AS THE SIZE OF THE
FEDERAL BUREAUCRACY CONTINUES TO GROW."  THOUGHTS AT A DEDICATION:
KEEPING THE JUDICIAL FUNCTION IN BALANCE, 49 A.B.A.J. 943, 943 - 944
(1963). 

THE JUSTICE RECOGNIZED THAT PROBLEMS OF HABEAS CORPUS JURISDICTION
WERE "OF CONSTITUTIONAL DIMENSIONS GOING TO THE HEART OF THE DIVISION
OF JUDICIAL POWERS IN A FEDERAL SYSTEM."  FAY V. NOIA, 372 U.S. 391,
464 (1963) (HARLAN, J., DISSENTING).  NOR HAVE SUCH PERCEPTIONS EVER
BEEN THE PRODUCT OF BUT A SINGLE JUSTICE.  AS THE COURT NOTED IN A
HISTORIC DECISION ON THE CONFLICTING REALMS OF STATE AND FEDERAL
JUDICIAL POWER:  "(THE CONSTITUTION OF THE UNITED STATES . . .
RECOGNIZES AND PRESERVES THE AUTONOMY AND INDEPENDENCE OF THE STATES-
INDEPENDENCE IN THEIR LEGISLATIVE AND INDEPENDENCE IN THEIR JUDICIAL
DEPARTMENTS.  SUPERVISION OVER EITHER THE LEGISLATIVE OR THE JUDICIAL
ACTION OF THE STATES IS IN NO CASE PERMISSIBLE EXCEPT AS TO MATTERS BY
THE CONSTITUTION SPECIFICALLY AUTHORIZED OR DELEGATED TO THE UNITED
STATES.  ANY INTERFERENCE WITH EITHER, EXCEPT AS THUS PERMITTED, IS AN
INVASION OF THE AUTHORITY OF THE STATE AND, TO THAT EXTENT, A DENIAL OF
ITS INDEPENDENCE."  ERIE R. CO. V. TOMPKINS, 304 U.S. 64, 78 - 79
(1938), QUOTING MR. JUSTICE FIELD IN BALTIMORE & O. R. CO. V. BAUGH,
149 U.S. 368, 401 (1893). 

/21/  ADDRESS AT THE ANNUAL DINNER OF THE SECTION OF JUDICIAL
ADMINISTRATION, AMERICAN BAR ASSOCIATION, SAN FRANCISCO, CALIFORNIA,
AUG. 14, 1972, PP. 5, 9, AND 10. 

/22/ BATOR, SUPRA, N. 3, AT 451. 

/23/  FRIENDLY, SUPRA, N. 12, AT 142.  JUDGE FRIENDLY'S THESIS, AS
HE DEVELOPS IT, WOULD ENCOMPASS COLLATERAL ATTACK BROADLY BOTH WITHIN
THE FEDERAL SYSTEM AND WITH RESPECT TO FEDERAL HABEAS FOR STATE
PRISONERS.  SUBJECT TO THE EXCEPTIONS CAREFULLY DELINEATED IN HIS
ARTICLE, JUDGE FRIENDLY WOULD APPLY THE CRITERION OF A "COLORABLE
SHOWING OF INNOCENCE" TO ANY COLLATERAL ATTACK OF A CONVICTION,
INCLUDING CLAIMS UNDER THE FIFTH AND SIXTH AS WELL AS THE FOURTH
AMENDMENTS.  ID., AT 151 - 157.  IN THIS CASE WE NEED NOT CONSIDER
ANYTHING OTHER THAN THE FOURTH AMENDMENT CLAIMS. 

/24/  SEE BIVENS V. SIX UNKNOWN FED. NARCOTICS AGENTS, 403 U.S. 388,
411 (BURGER, C. J., DISSENTING); PAULSEN, THE EXCLUSIONARY RULE AND
MISCONDUCT BY THE POLICE, 52 J. CRIM. L. C. & P. S. 255, 256 (1961);
SEE ALSO J. WILSON, VARIETIES OF POLICE BEHAVIOR (1968); 8 J. WIGMORE,
EVIDENCE ^ 2184, PP. 51 - 52 (J. MCNAUGHTON ED. 1961), AND H. FRIENDLY,
BENCHMARKS 260 - 261 (1967), SUGGESTING THAT EVEN AT TRIAL THE
EXCLUSIONARY RULE SHOULD BE LIMITED TO EXCLUSION OF "THE FRUIT OF
ACTIVITY INTENTIONALLY OR FLAGRANTLY ILLEGAL."  BUT SEE KAMISAR PUBLIC
SAFETY V. INDIVIDUAL LIBERTIES:  SOME "FACTS" AND "THEORIES," 53 J.
CRIM. L. C. & P. S. 171, 188 - 190 (1962), AND KAMISAR, ON THE TACTICS
OF POLICE-PROSECUTION ORIENTED CRITICS OF THE COURTS, 49 CORNELL L. Q.
436 (1964). 

/25/  THESE EXPRESSIONS ANTEDATED THE ONLY SCHOLARLY EMPIRICAL
RESEARCH, MR. JUSTICE STEWART HAVING NOTED IN ELKINS V. UNITED STATES,
364 U.S. 206, 218 (1960), THAT "(EMPIRICAL STATISTICS ARE NOT
AVAILABLE" AS TO THE EFFICACY OF THE RULE--A SITUATION WHICH CONTINUED
UNTIL PROFESSOR OAKS' STUDY.  INDEED, IN REFERRING TO THE BASIS FOR THE
EXCLUSIONARY RULE, PROFESSOR OAKS NOTED THAT IT HAS BEEN SUPPORTED--NOT
BY FACTS--BUT BY "RECOURSE TO POLEMIC, RHETORIC, AND INTUITION." 
STUDYING THE EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37 U. CHI.  L.
REV. 665, 755 (1970).  SEE ALSO BURGER, WHO WILL WATCH THE WATCHMAN?,
14 AM. U. L. REV. 1 (1964). 

I MENTION THE CONTROVERSY OVER THE EXCLUSIONARY RULE--NOT TO SUGGEST
HERE ITS TOTAL ABANDONMENT (CERTAINLY NOT IN THE ABSENCE OF SOME OTHER
DETERRENT TO DEVIANT POLICE CONDUCT) BUT RATHER TO EMPHASIZE ITS
PRECARIOUS AND UNDEMONSTRATED BASIS, ESPECIALLY WHEN APPLIED TO A
FOURTH AMENDMENT CLAIM ON FEDERAL HABEAS REVIEW OF A STATE COURT
DECISION. 

/26/  THE MOST SEARCHING EMPIRICAL STUDY OF THE EFFICACY OF THE
EXCLUSIONARY RULE WAS MADE BY PROFESSOR OAKS, WHO CONCLUDED THAT "(AS A
DEVICE FOR DIRECTLY DETERRING ILLEGAL SEARCHES AND SEIZURES BY THE
POLICE, THE EXCLUSIONARY RULE IS A FAILURE."  SUPRA, N. 25, AT 755. 
PROFESSOR OAKS, THOUGH RECOGNIZING THAT CONCLUSIVE DATA MAY NOT YET BE
AVAILABLE, SUMMARIZED THE RESULTS OF HIS STUDY AS FOLLOWS:  "THERE IS
NO REASON TO EXPECT THE RULE TO HAVE ANY DIRECT EFFECT ON THE
OVERWHELMING MAJORITY OF POLICE CONDUCT THAT IS NOT MEANT TO RESULT IN
PROSECUTIONS, AND THERE IS HARDLY ANY EVIDENCE THAT THE RULE EXERTS ANY
DETERRENT EFFECT ON THE SMALL FRACTION OF LAW ENFORCEMENT ACTIVITY THAT
IS AIMED AT PROSECUTION.  WHAT IS KNOWN ABOUT THE DETERRENT EFFECT OF
SANCTIONS SUGGESTS THAT THE EXCLUSIONARY RULE OPERATES UNDER CONDITIONS
THAT ARE EXTREMELY UNFAVORABLE FOR DETERRING THE POLICE.  THE HARSHEST
CRITICISM OF THE RULE IS THAT IT IS INEFFECTIVE.  IT IS THE SOLE MEANS
OF ENFORCING THE ESSENTIAL GUARANTEES OF FREEDOM FROM UNREASONABLE
ARRESTS AND SEARCHES AND SEIZURES BY LAW ENFORCEMENT OFFICERS, AND IT
IS A FAILURE IN THAT VITAL TASK. 

"THE USE OF THE EXCLUSIONARY RULE IMPOSES EXCESSIVE COSTS ON THE
CRIMINAL JUSTICE SYSTEM.  IT PROVIDES NO RECOMPENSE FOR THE INNOCENT
AND IT FREES THE GUILTY.  IT CREATES THE OCCASION AND INCENTIVE FOR
LARGESCALE LYING BY LAW ENFORCEMENT OFFICERS.  IT DIVERTS THE FOCUS OF
THE CRIMINAL PROSECUTION FROM THE GUILT OR INNOCENCE OF THE DEFENDANT
TO A TRIAL OF THE POLICE.  ONLY A SYSTEM WITH LIMITLESS PATIENCE WITH
IRRATIONALITY COULD TOLERATE THE FACT THAT WHERE THERE HAS BEEN ONE
WRONG, THE DEFENDANT'S, HE WILL BE PUNISHED, BUT WHERE THERE HAVE BEEN
TWO WRONGS, THE DEFENDANT'S AND THE OFFICER'S, BOTH WILL GO FREE.  THIS
WOULD NOT BE AN EXCESSIVE COST FOR AN EFFECTIVE REMEDY AGAINST POLICE
MISCONDUCT, BUT IT IS A PROHIBITIVE PRICE TO PAY FOR AN ILLUSORY ONE." 
ID., AT 755.  DESPITE A CONVICTION THAT THE EXCLUSIONARY RULE IS A
"FAILURE," PROFESSOR OAKS WOULD NOT ABOLISH IT ALTOGETHER UNTIL THERE
IS SOMETHING TO TAKE ITS PLACE.  HE RECOMMENDS "AN EFFECTIVE TORT
REMEDY AGAINST THE OFFENDING OFFICER OR HIS EMPLOYER."  HE NOTES THAT
SUCH A "TORT REMEDY WOULD GIVE COURTS AN OCCASION TO RULE ON THE
CONTENT OF CONSTITUTIONAL RIGHTS (THE CANADIAN EXAMPLE SHOWS HOW), AND
IT WOULD PROVIDE THE REAL CONSEQUENCE NEEDED TO GIVE CREDIBILITY TO THE
GUARANTEE."  ID., AT 756 - 757. 

/27/  "AS THE EXCLUSIONARY RULE IS APPLIED TIME AFTER TIME, IT SEEMS
THAT ITS DETERRENT EFFICACY AT SOME STAGE REACHES A POINT OF
DIMINISHING RETURNS, AND BEYOND THAT POINT ITS CONTINUED APPLICATION IS
A PUBLIC NUISANCE."  AMSTERDAM, SUPRA, N. 16, AT 389: 

/28/  KER V. CALIFORNIA, 374 U.S. 23, 45 (1963) (HARLAN, J.,
CONCURRING IN RESULT). 

/29/  COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 493 (1971) (OPINION
OF BURGER, C. J.).  THE CHIEF JUSTICE WAS QUOTING MR. JUSTICE STONE OF
THE MINNESOTA SUPREME COURT. 

/30/  FRIENDLY, SUPRA, N. 12, AT 162 - 163. 

/31/  FRIENDLY, SUPRA, N. 12, AT 156. 

/32/  SEE PART II, SUPRA. 

/33/  THE 1966 REVISION OF THE FEDERAL HABEAS CORPUS STATUTE ENACTED
AMONG OTHER THINGS, THE PRESENT 28 U.S.C. ^^ 2254 (A), (D), (E), AND
(F). 

/34/  SEE KAUFMAN, SUPRA, AT 220 - 221, NN. 3 AND 4, FOR A LISTING
OF THE RESPECTIVE POSITIONS OF THE COURTS OF APPEALS. 

/35/  THE LETTER FROM CIRCUIT JUDGE ORIE L. PHILLIPS, CHAIRMAN OF
THE COMMITTEE ON HABEAS CORPUS OF THE JUDICIAL CONFERENCE OF THE UNITED
STATES, WHICH SPONSORED THE 1966 LEGISLATION, TO THE CHAIRMAN OF THE
SENATE SUBCOMMITTEE ON IMPROVEMENTS IN JUDICIAL MACHINERY ALSO STRONGLY
EMPHASIZED THE NECESSIRY OF EXPEDITING "THE DETERMINATION IN FEDERAL
COURTS OF NONMERITORIOUS AND REPETITIOUS APPLICATIONS FOR THE WRIT BY
STATE COURT PRISONERS."  S. REP. NO. 1797, 89TH CONG., 2D SESS., 5
(1966).    /36/  SEE PART II, SUPRA. 

/37/  MR. JUSTICE JACKSON, CONCURRING IN THE RESULT 20 YEARS AGO IN
BROWN V. ALLEN, 344 U.S. 443, 532 (1953), LAMENTED THE "FLOODS OF
STALE, FRIVOLOUS AND REPETITIOUS PETITIONS (FOR FEDERAL HABEAS CORPUS
BY STATE PRISONERS WHICH) INUNDATE THE DOCKET OF THE LOWER COURTS AND
SWELL OUR OWN."  ID., AT 536.  THE INUNDATION WHICH CONCERNED MR.
JUSTICE JACKSON CONSISTED OF 541 SUCH PETITIONS.  IN 1971, THE LATEST
YEAR FOR WHICH FIGURES ARE AVAILABLE, STATE PRISONERS ALONE FILED 7,949
PETITIONS FOR HABEAS IN FEDERAL DISTRICT COURTS, OVER 14 TIMES THE
NUMBER FILED WHEN MR. JUSTICE JACKSON VOICED HIS MISGIVINGS. 

/38/  BROWN V. ALLEN, SUPRA, AT 537. 

/39/  COMMENTING ON THIS DISTORTION OF OUR CRIMINAL JUSTICE SYSTEM,
JUSTICE WALTER SCHAEFER OF THE ILLINOIS SUPREME COURT HAD SAID: 

"WHAT BOTHERS ME IS THAT ALMOST NEVER DO WE HAVE A GENUINE ISSUE OF
GUILT OR INNOCENCE TODAY.  THE SYSTEM HAS SO CHANGED THAT WHAT WE ARE
DOING IN THE COURTROOM IS TRYING THE CONDUCT OF THE POLICE AND THAT OF
THE PROSECUTOR ALL ALONG THE LINE."  ADDRESS BEFORE CENTER FOR THE
STUDY OF DEMOCRATIC INSTITUTIONS, JUNE 1968, CITED BY FRIENDLY, SUPRA,
N. 12, AT 145 N. 12. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH THE COURT OF APPEALS THAT "VERBAL ASSENT" TO A SEARCH
IS NOT ENOUGH, THAT THE FACT THAT CONSENT WAS GIVEN TO THE SEARCH DOES
NOT IMPLY THAT THE SUSPECT KNEW THAT THE ALTERNATIVE OF A REFUSAL
EXISTED.  448 F. 2D 699, 700.  AS THAT COURT STATED: 

"(UNDER MANY CIRCUMSTANCES A REASONABLE PERSON MIGHT READ AN
OFFICER'S 'MAY I' AS THE COURTEOUS EXPRESSION OF A DEMAND BACKED BY
FORCE OF LAW."  ID., AT 701. 

A CONSIDERABLE CONSTITUTIONAL GUARANTEE RIDES ON THIS NARROW ISSUE. 
AT THE TIME OF THE SEARCH THERE WAS NO PROBABLE CAUSE TO BELIEVE THAT
THE CAR CONTAINED CONTRABAND OR OTHER UNLAWFUL ARTICLES.  THE CAR WAS
STOPPED ONLY BECAUSE A HEADLIGHT AND THE LICENSE PLATE LIGHT WERE
BURNED OUT.  THE CAR BELONGED TO ALCALA'S BROTHER, FROM WHOM IT WAS
BORROWED, AND ALCALA HAD A DRIVER'S LICENSE.  TRAFFIC CITATIONS WERE
APPROPRIATELY ISSUED.  THE CAR WAS SEARCHED, THE PRESENT RECORD SHOWING
THAT ALCALA CONSENTED.  BUT WHETHER ALCALA KNEW HE HAD THE RIGHT TO
REFUSE, WE DO NOT KNOW.  ALL THE COURT OF APPEALS DID WAS TO REMAND THE
CASE TO THE DISTRICT COURT FOR A FINDING--AND IF NECESSARY, A HEARING
ON THAT ISSUE. 

I WOULD LET THE CASE GO FORWARD ON THAT BASIS.  THE LONG, TIME
CONSUMING CONTEST IN THIS COURT MIGHT WELL WASH OUT.  AT LEAST WE COULD
BE ASSURED THAT, IF IT CAME BACK, WE WOULD NOT BE RENDERING AN ADVISORY
OPINION.  HAD I VOTED TO GRANT THIS PETITION, I WOULD SUGGEST WE
DISMISS IT AS IMPROVIDENTLY GRANTED.  BUT BEING IN THE MINORITY, I AM
BOUND BY THE RULE OF FOUR. 

MR. JUSTICE BRENNAN, DISSENTING. 

THE FOURTH AMENDMENT SPECIFICALLY GUARANTEES "(THE RIGHT OF THE
PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS,
AGAINST UNREASONABLE SEARCHES AND SEIZURES . . . ."  WE HAVE
CONSISTENTLY HELD THAT GOVERNMENTAL SEARCHES CONDUCTED PURSUANT TO A
VALIDLY OBTAINED WARRANT OR REASONABLY INCIDENT TO A VALID ARREST DO
NOT VIOLATE THIS GUARANTEE.  HERE, HOWEVER, AS THE COURT ITSELF
RECOGNIZES, NO SEARCH WARRANT WAS OBTAINED AND THE STATE DOES NOT EVEN
SUGGEST "THAT THERE WAS PROBABLE CAUSE TO SEARCH THE VEHICLE OR THAT
THE SEARCH WAS INCIDENT TO A VALID ARREST OF ANY OF THE OCCUPANTS." 
ANTE, AT 227 - 228.  AS A RESULT, THE SEARCH OF THE VEHICLE CAN BE
JUSTIFIED SOLELY ON THE GROUND THAT THE OWNER'S BROTHER GAVE HIS
CONSENT--THAT IS, THAT HE WAIVED HIS FOURTH AMENDMENT RIGHT "TO BE
SECURE" AGAINST AN OTHERWISE "UNREASONABLE" SEARCH.  THE COURT HOLDS
TODAY THAT AN INDIVIDUAL CAN EFFECTIVELY WAIVE THIS RIGHT EVEN THOUGH
HE IS TOTALLY IGNORANT OF THE FACT THAT, IN THE ABSENCE OF HIS CONSENT,
SUCH INVASIONS OF HIS PRIVACY WOULD BE CONSTITUTIONALLY PROHIBITED.  IT
WHOLLY ESCAPES ME HOW OUR CITIZENS CAN MEANINGFULLY BE SAID TO HAVE
WAIVED SOMETHING AS PRECIOUS AS A CONSTITUTIONAL GUARANTEE WITHOUT EVER
BEING AWARE OF ITS EXISTENCE.  IN MY VIEW, THE COURT'S CONCLUSION IS
SUPPORTED NEITHER BY "LINGUISTICE,"  NOR BY "EPISTEMOLOGY," NOR,
INDEED, BY "COMMON SENSE."  I RESPECTFULLY DISSENT. 

MR. JUSTICE MARSHALL, DISSENTING. 

SEVERAL YEARS AGO, MR. JUSTICE STEWART REMINDED US THAT "(THE
CONSTITUTION GUARANTEES . . . A SOCIETY OF FREE CHOICE.  SUCH A SOCIETY
PRESUPPOSES THE CAPACITY OF ITS MEMBERS TO CHOOSE."  GINSBURG V. NEW
YORK, 390 U.S. 629, 649 (1968) (CONCURRING IN RESULT).  I WOULD HAVE
THOUGHT THAT THE CAPACITY TO CHOOSE NECESSARILY DEPENDS UPON KNOWLEDGE
THAT THERE IS A CHOICE TO BE MADE.  BUT TODAY THE COURT REACHES THE
CURIOUS RESULT THAT ONE CAN CHOOSE TO RELINQUISH A CONSTITUTIONAL RIGHT
-THE RIGHT TO BE FREE OF UNREASONABLE SEARCHES--WITHOUT KNOWING THAT HE
HAS THE ALTERNATIVE OF REFUSING TO ACCEDE TO A POLICE REQUEST TO
SEARCH.  /1/  I CANNOT AGREE, AND THEREFORE DISSENT. 

        I 

I BELIEVE THAT THE COURT MISSTATES THE TRUE ISSUE IN THIS CASE. 
THAT ISSUE IS NOT, AS THE COURT SUGGESTS, WHETHER THE POLICE OVERBORE
ALCALA'S WILL IN ELICITING HIS CONSENT, BUT RATHER, WHETHER A SIMPLE
STATEMENT OF ASSENT TO SEARCH, WITHOUT MORE, /2/ SHOULD BE SUFFICIENT
TO PERMIT THE POLICE TO SEARCH AND THUS ACT AS A RELINQUISHMENT OF
ALCALA'S CONSTITUTIONAL RIGHT TO EXCLUDE THE POLICE.  /3/  THIS COURT
HAS ALWAYS SCRUTINIZED WITH GREAT CARE CLAIMS THAT A PERSON HAS FORGONE
THE OPPORTUNITY TO ASSERT CONSTITUTIONAL RIGHTS.  SEE, E. G., FUENTES
V. SHEVIN, 407 U.S. 67 (1972); D. H. OVERMYER CO. V. FRICK CO., 405
U.S. 174 (1972); BOYKIN V. ALABAMA, 395 U.S. 238 (1969); CARNLEY V.
COCHRAN, 369 U.S. 506 (1962).  I SEE NO REASON TO GIVE THE CLAIM THAT A
PERSON CONSENTED TO A SEARCH ANY LESS RIGOROUS SCRUTINY.  EVERY CASE IN
THIS COURT INVOLVING THIS KIND OF SEARCH HAS THEREFORE SPOKEN OF
CONSENT AS A WAIVER.  /4/  SEE, E. G., AMOS V. UNITED STATES, 255 U.S.
313, 317 (1921); ZAP V. UNITED STATES, 328 U.S. 624, 628 (1946);
JOHNSON V. UNITED STATES, 333 U.S. 10, 13 (1948).  /5/  PERHAPS ONE
SKILLED IN LINGUISTICS OR EPISTEMOLOGY CAN DISREGARD THOSE COMMENTS,
BUT I FIND THEM HARD TO IGNORE. 

TO BEGIN, IT IS IMPORTANT TO UNDERSTAND THAT THE OPINION OF THE
COURT IS MISLEADING IN ITS TREATMENT OF THE ISSUE HERE IN THREE WAYS. 
FIRST, IT DERIVES ITS CRITERION FOR DETERMINING WHEN A VERBAL STATEMENT
OF ASSENT TO SEARCH OPERATES AS A RELINQUISHMENT OF A PERSON'S RIGHT TO
PRECLUDE ENTRY FROM A JUSTIFICATION OF CONSENT SEARCHES THAT IS
INCONSISTENT WITH OUR TREATMENT IN EARLIER CASES OF EXCEPTIONS TO THE
REQUIREMENTS OF THE FOURTH AMENDMENT, AND THAT IS NOT RESPONSIVE TO THE
UNIQUE NATURE OF THE CONSENT-SEARCH EXCEPTION.  SECOND, IT APPLIES A
STANDARD OF VOLUNTARINESS THAT WAS DEVELOPED IN A VERY DIFFERENT
CONTEXT, WHERE THE STANDARD WAS BASED ON POLICIES DIFFERENT FROM THOSE
INVOLVED IN THIS CASE.  THIRD, IT MISCHARACTERIZES OUR PRIOR CASES
INVOLVING CONSENT SEARCHES. 

        A 

THE COURT ASSUMES THAT THE ISSUE IN THIS CASE IS, WHAT ARE THE
STANDARDS BY WHICH COURTS ARE TO DETERMINE THAT CONSENT IS VOLUNTARILY
GIVEN?  IT THEN IMPORTS INTO THE LAW OF SEARCH AND SEIZURE STANDARDS
DEVELOPED TO DECIDE ENTIRELY DIFFERENT QUESTIONS ABOUT COERCED
CONFESSIONS.  /6/ 

THE FIFTH AMENDMENT, IN TERMS, PROVIDES THAT NO PERSON "SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  NOR
IS THE INTEREST PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT ANY DIFFERENT.  THE INQUIRY IN A CASE WHERE A CONFESSION IS
CHALLENGED AS HAVING BEEN ELICITED IN AN UNCONSTITUTIONAL MANNER IS,
THEREFORE, WHETHER THE BEHAVIOR OF THE POLICE AMOUNTED TO COMPULSION OF
THE DEFENDANT.  /7/  BECAUSE OF THE NATURE OF THE RIGHT TO BE FREE OF
COMPULSION, IT WOULD BE POINTLESS TO ASK WHETHER A DEFENDANT KNEW OF IT
BEFORE HE MADE A STATEMENT; NO SANE PERSON WOULD KNOWINGLY RELINQUISH A
RIGHT TO BE FREE OF COMPULSION.  THUS, THE QUESTIONS OF COMPULSION AND
OF VIOLATION OF THE RIGHT ITSELF ARE INEXTRICABLY INTERTWINED.  THE
CASES INVOLVING COERCED CONFESSIONS, THEREFORE, PASS OVER THE QUESTION
OF KNOWLEDGE OF THAT RIGHT AS IRRELEVANT, AND TURN DIRECTLY TO THE
QUESTION OF COMPULSION. 

MIRANDA V. ARIZONA, 384 U.S. 436 (1966), CONFIRMS THIS ANALYSIS. 
THERE THE COURT HELD THAT CERTAIN WARNINGS MUST BE GIVEN TO SUSPECTS
PRIOR TO THEIR INTERROGATION SO THAT THE INHERENTLY COERCIVE NATURE OF
IN-CUSTODY QUESTIONING WOULD BE DIMINISHED BY THE SUSPECT'S KNOWLEDGE
THAT HE COULD REMAIN SILENT.  BUT, ALTHOUGH THOSE WARNINGS, OF COURSE,
CONVEY INFORMATION ABOUT VARIOUS RIGHTS OF THE ACCUSED, THE INFORMATION
IS INTENDED ONLY TO PROTECT THE SUSPECT AGAINST ACCEDING TO THE OTHER
COERCIVE ASPECTS OF POLICE INTERROGATION.  WHILE WE WOULD NOT
ORDINARILY THINK THAT A SUSPECT COULD WAIVE HIS RIGHT TO BE FREE OF
COERCION, FOR EXAMPLE, WE DO PERMIT SUSPECTS TO WAIVE THE RIGHTS THEY
ARE INFORMED OF BY POLICE WARNINGS, ON THE BELIEF THAT SUCH INFORMATION
IN ITESLF SUFFICIENTLY DECREASES THE CHANCE THAT A STATEMENT WOULD BE
ELICTED BY COMPULSION.  ID., AT 475 - 476.  THUS, NOTHING THE DEFENDANT
DID IN THE CASES INVOLVING COERCED CONFESSIONS WAS TAKEN TO OPERATE AS
A RELINQUISHMENT OF HIS RIGHTS; CERTAINLY THE FACT THAT THE DEFENDANT
MADE A STATEMENT WAS NEVER TAKEN TO BE A RELINQUISHMENT OF THE RIGHT TO
BE FREE OF COERCION.  /8/

      B 

IN CONTRAST, THIS CASE DEALS NOT WITH "COERCION," BUT WITH
"CONSENT," A SUBTLY DIFFERENT CONCEPT TO WHICH DIFFERENT STANDARDS HAVE
BEEN APPLIED IN THE PAST.  FREEDOM FROM COERCION IS A SUBSTANTIVE
RIGHT, GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS.  CONSENT,
HOWEVER, IS A MECHANISM BY WHICH SUBSTANTIVE REQUIREMENTS, OTHERWISE
APPLICABLE, ARE AVOIDED.  IN THE CONTEXT OF THE FOURTH AMENDMENT, THE
RELEVANT SUBSTANTIVE REQUIREMENTS ARE THAT SEARCHES BE CONDUCTED ONLY
AFTER EVIDENCE JUSTIFYING THEM HAS BEEN SUBMITTED TO AN IMPARTIAL
MAGISTRATE FOR A DETERMINATION OF PROBABLE CAUSE.  THERE ARE, OF
COURSE, EXCEPTIONS TO THESE REQUIREMENTS BASED ON A VARIETY OF EXIGENT
CIRCUMSTANCES THAT MAKE IT IMPRACTICAL TO INVALIDATE A SEARCH SIMPLY
BECAUSE THE POLICE FAILED TO GET A WARRANT.  /9/  BUT NONE OF THE
EXCEPTIONS RELATING TO THE OVERRIDING NEEDS OF LAW ENFORCEMENT ARE
APPLICABLE WHEN A SEARCH IS JUSTIFIED SOLELY BY CONSENT.  ON THE
CONTRARY, THE NEEDS OF LAW ENFORCEMENT ARE SIGNIFICANTLY MORE
ATTENUATED, FOR PROBABLE CAUSE TO SEARCH MAY BE LACKING BUT A SEARCH
PERMITTED IF THE SUBJECT'S CONSENT HAS BEEN OBTAINED.  THUS, CONSENT
SEARCHES ARE PERMITTED, NOT BECAUSE SUCH AN EXCEPTION TO THE
REQUIREMENTS OF PROBABLE CAUSE AND WARRANT IS ESSENTIAL TO PROPER LAW
ENFORCEMENT, BUT BECAUSE WE PERMIT OUR CITIZENS TO CHOOSE WHETHER OR
NOT THEY WISH TO EXERCISE THEIR CONSTITUTIONAL RIGHTS.  OUR PRIOR
DECISIONS SIMPLY DO NOT SUPPORT THE VIEW THAT A MEANINGFUL CHOICE HAS
BEEN MADE SOLELY BECAUSE NO COERCION WAS BROUGHT TO BEAR ON THE
SUBJECT. 

FOR EXAMPLE, IN BUMPER V. NORTH CAROLINA, 391 U.S. 543 (1968), FOUR
LAW ENFORCEMENT OFFICERS WENT TO THE HOME OF BUMPER'S GRANDMOTHER. 
THEY ANNOUNCED THAT THEY HAD A SEARCH WARRANT, AND SHE PERMITTED THEM
TO ENTER.  SUBSEQUENTLY, THE PROSECUTOR CHOSE NOT TO RELY ON THE
WARRANT, BUT ATTEMPTED TO JUSTIFY THE SEARCH BY THE WOMAN'S CONSENT. 
WE HELD THAT CONSENT COULD NOT BE ESTABLISHED "BY SHOWING NO MORE THAN
ACQUIESCENCE TO A CLAIM OF LAWFUL AUTHORITY," ID., AT 548 - 549.  WE
DID NOT THERE INQUIRE INTO ALL THE CIRCUMSTANCES, BUT FOCUSED ON A
SINGLE FACT, THE CLAIM OF AUTHORITY, EVEN THOUGH THE GRANDMOTHER
TESTIFIED THAT NO THREATS WERE MADE.  ID., AT 547 N. 8.  IT MAY BE
THAT, ON THE FACTS OF THAT CASE, HER CONSENT WAS UNDER ALL THE
CIRCUMSTANCES INVOLUNTARY, BUT IT IS PLAIN THAT WE DID NOT APPLY THE
TEST ADOPTED BY THE COURT TODAY.  AND, WHATEVER THE POSTURE OF THE CASE
WHEN IT REACHED THIS COURT, IT COULD NOT BE SAID THAT THE POLICE IN
BUMPER ACTED IN A THREATENING OR COERCIVE MANNER, FOR THEY DID HAVE THE
WARRANT THEY SAID THEY HAD; THE DECISION NOT TO RELY ON IT WAS MADE
LONG AFTER THE SEARCH, WHEN THE CASE CAME INTO COURT.  /10/ 

THAT CASE MAKES IT CLEAR THAT POLICE OFFICERS MAY NOT COURTEOUSLY
ORDER THE SUBJECT OF A SEARCH SIMPLY TO STAND ASIDE WHILE THE OFFICERS
CARRY OUT A SEARCH THEY HAVE SETTLED ON.  YET THERE WOULD BE NO
COERCION OR BRUTALITY IN GIVING THAT ORDER.  NO INTERESTS THAT THE
COURT TODAY RECOGNIZES WOULD BE DAMAGED IN SUCH A SEARCH.  THUS, ALL
THE POLICE MUST DO IS CONDUCT WHAT WILL INEVITABLY BE A CHARADE OF
ASKING FOR CONSENT.  IF THEY DISPLAY ANY FIRMNESS AT ALL, A VERBAL
EXPRESSION OF ASSENT WILL UNDOUBTEDLY BE FORTHCOMING.  I CANNOT BELIEVE
THAT THE PROTECTIONS OF THE CONSTITUTION MEAN SO LITTLE. 

  II 

MY APPROACH TO THE CASE IS STRAIGHTFORWARD AND, TO ME, OBVIOUSLY
REQUIRED BY THE NOTION OF CONSENT AS A RELINQUISHMENT OF FOURTH
AMENDMENT RIGHTS.  I AM AT A LOSS TO UNDERSTAND WHY CONSENT "CANNOT BE
TAKEN LITERALLY TO MEAN A 'KNOWING CHOICE."  ANTE, AT 224, IN FACT, I
HAVE DIFFICULTY IN COMPREHENDING HOW A DECISION MADE WITHOUT KNOWLEDGE
OF AVAILABLE ALTERNATIVES CAN BE TREATED AS A CHOICE AT ALL. 

IF CONSENT TO SEARCH MEANS THAT A PERSON HAS CHOSEN TO FORGO HIS
RIGHT TO EXCLUDE THE POLICE FROM THE PLACE THEY SEEK TO SEARCH, IT
FOLLOWS THAT HIS CONSENT CANNOT BE CONSIDERED A MEANINGFUL CHOICE
UNLESS HE KNEW THAT HE COULD IN FACT EXCLUDE THE POLICE.  THE COURT
APPEARS, HOWEVER, TO REJECT EVEN THE MODEST PROPOSITION THAT, IF THE
SUBJECT OF A SEARCH CONVINCES THE TRIER OF FACT THAT HE DID NOT KNOW OF
HIS RIGHT TO REFUSE ASSENT TO A POLICE REQUEST FOR PERMISSION TO
SEARCH, THE SEARCH MUST BE HELD UNCONSTITUTIONAL.  FOR IT SAYS ONLY
THAT "KNOWLEDGE OF THE RIGHT TO REFUSE CONSENT IS ONE FACTOR TO BE
TAKEN INTO ACCOUNT."  ANTE, AT 227.  I FIND THIS INCOMPREHENSIBLE.  I
CAN THINK OF NO OTHER SITUATION IN WHICH WE WOULD SAY THAT A PERSON
AGREED TO SOME COURSE OF ACTION IF HE CONVINCED US THAT HE DID NOT KNOW
THAT THERE WAS SOME OTHER COURSE HE MIGHT HAVE PURSUED.  I WOULD
THEREFORE HOLD, AT A MINIMUM, THAT THE PROSECUTION MAY NOT RELY ON A
PURPORTED CONSENT TO SEARCH IF THE SUBJECT OF THE SEARCH DID NOT KNOW
THAT HE COULD REFUSE TO GIVE CONSENT.  THAT, I THINK, IS THE IMPORT OF
BUMPER V. NORTH CAROLINA, SUPRA.  WHERE THE POLICE CLAIM AUTHORITY TO
SEARCH YET IN FACT LACK SUCH AUTHORITY, THE SUBJECT DOES NOT KNOW THAT
HE MAY PERMISSIBLY REFUSE THEM ENTRY, AND IT IS THIS LACK OF KNOWLEDGE
THAT INVALIDATES THE CONSENT. 

IF ONE ACCEPTS THIS VIEW, THE QUESTION THEN IS A SIMPLE ONE:  MUST
THE GOVERNMENT SHOW THAT THE SUBJECT KNEW OF HIS RIGHTS, OR MUST THE
SUBJECT SHOW THAT HE LACKED SUCH KNOWLEDGE? 

I THINK THAT ANY FAIR ALLOCATION OF THE BURDEN WOULD REQUIRE THAT IT
BE PLACED ON THE PROSECUTION.  ON THIS QUESTION, THE COURT INDULGES IN
WHAT MIGHT BE CALLED THE "STRAW MAN" METHOD OF ADJUDICATION.  THE COURT
RESPONDS TO THIS SUGGESTION BY OVERINFLATING THE BURDEN.  AND, WHEN IT
IS SUGGESTED THAT THE PROSECUTION'S BURDEN OF PROOF COULD BE EASILY
SATISFIED IF THE POLICE INFORMED THE SUBJECT OF HIS RIGHTS, THE COURT
RESPONDS BY REFUSING TO REQUIRE THE POLICE TO MAKE A "DETAILED"
INQUIRY.  ANTE, AT 245.  IF THE COURT CANDIDLY FACED THE REAL QUESTION
OF ALLOCATING THE BURDEN OF PROOF, NEITHER OF THESE MANEUVERS WOULD BE
AVAILABLE TO IT. 

IF THE BURDEN IS PLACED ON THE DEFENDANT, ALL THE SUBJECT CAN DO IS
TO TESTIFY THAT HE DID NOT KNOW OF HIS RIGHTS.  AND I DOUBT THAT MANY
TRIAL JUDGES WILL FIND FOR THE DEFENDANT SIMPLY ON THE BASIS OF THAT
TESTIMONY.  PRECISELY BECAUSE THE EVIDENCE IS VERY HARD TO COME BY,
COURTS HAVE TRADITIONALLY BEEN RELUCTANT TO REQUIRE A PARTY TO PROVE
NEGATIVES SUCH AS THE LACK OF KNOWLEDGE.  SEE, E. G., 9 J. WIGMORE,
EVIDENCE 274 (3D ED. 1940); F. JAMES, CIVIL PROCEDURE ^ 7.8 (1965); E.
MORGAN, SOME PROBLEMS OF PROOF UNDER THE ANGLO-AMERICAN SYSTEM OF
LITIGATION 75 - 76 (1956). 

IN CONTRAST, THERE ARE SEVERAL WAYS BY WHICH THE SUBJECT'S KNOWLEDGE
OF HIS RIGHTS MAY BE SHOWN.  THE SUBJECT MAY AFFIRMATIVELY DEMONSTRATE
SUCH KNOWLEDGE BY HIS RESPONSES AT THE TIME THE SEARCH TOOK PLACE, AS
IN UNITED STATES V. CURIALE, 414 F. 2D 744 (CA2 1969).  WHERE, AS IN
THIS CASE, THE PERSON GIVING CONSENT IS SOMEONE OTHER THAN THE
DEFENDANT, THE PROSECUTION MAY REQUIRE HIM TO TESTIFY UNDER OATH. 
DENIALS OF KNOWLEDGE MAY BE DISPROVED BY ESTABLISHING THAT THE SUBJECT
HAD, IN THE RECENT PAST, DEMONSTRATED HIS KNOWLEDGE OF HIS RIGHTS, FOR
EXAMPLE, BY REFUSING ENTRY WHEN IT WAS REQUESTED BY THE POLICE.  THE
PRIOR EXPERIENCE OR TRAINING OF THE SUBJECT MIGHT IN SOME CASES SUPPORT
AN INFERENCE THAT HE KNEW OF HIS RIGHT TO EXCLUDE THE POLICE. 

THE BURDEN ON THE PROSECUTOR WOULD DISAPPEAR, OF COURSE, IF THE
POLICE, AT THE TIME THEY REQUESTED CONSENT TO SEARCH, ALSO TOLD THE
SUBJECT THAT HE HAD A RIGHT TO REFUSE CONSENT AND THAT HIS DECISION TO
REFUSE WOULD BE RESPECTED.  THE COURT'S ASSERTIONS TO THE CONTRARY
NOTWITHSTANDING, THERE IS NOTHING IMPRACTICAL ABOUT THIS METHOD OF
SATISFYING THE PROSECUTION'S BURDEN OF PROOF.  /11/  IT MUST BE
EMPHASIZED THAT THE DECISION ABOUT INFORMING THE SUBJECT OF HIS RIGHTS
WOULD LIE WITH THE OFFICERS SEEKING CONSENT.  IF THEY BELIEVED THAT
PROVIDING SUCH INFORMATION WOULD IMPEDE THEIR INVESTIGATION, THEY MIGHT
SIMPLY ASK FOR CONSENT, TAKING THE RISK THAT AT SOME LATER DATE THE
PROSECUTOR WOULD BE UNABLE TO PROVE THAT THE SUBJECT KNEW OF HIS RIGHTS
OR THAT SOME OTHER BASIS FOR THE SEARCH EXISTED. 

THE COURT CONTENDS THAT IF AN OFFICER PAUSED TO INFORM THE SUBJECT
OF HIS RIGHTS, THE INFORMALITY OF THE EXCHANGE WOULD BE DESTROYED.  I
DOUBT THAT A SIMPLE STATEMENT BY AN OFFICER OF AN INDIVIDUAL'S RIGHT TO
REFUSE CONSENT WOULD DO MUCH TO ALTER THE INFORMALITY OF THE EXCHANGE,
EXCEPT TO ALERT THE SUBJECT TO A FACT THAT HE SURELY IS ENTITLED TO
KNOW.  IT IS NOT WITHOUT SIGNIFICANCE THAT FOR MANY YEARS THE AGENTS OF
THE FEDERAL BUREAU OF INVESTIGATION HAVE ROUTINELY INFORMED SUBJECTS OF
THEIR RIGHT TO REFUSE CONSENT, WHEN THEY REQUEST CONSENT TO SEARCH. 
NOTE, CONSENT SEARCHES:  A REAPPRAISAL AFTER MIRANDA V. ARIZONA, 67
COL. L. REV. 130, 143 N. 75 (CITING LETTER FROM J. EDGAR HOOVER).  THE
REPORTED CASES IN WHICH THE POLICE HAVE INFORMED SUBJECTS OF THEIR
RIGHT TO REFUSE CONSENT SHOW, ALSO, THAT THE INFORMATION CAN BE GIVEN
WITHOUT DISRUPTING THE CASUAL FLOW OF EVENTS.  SEE, E. G., UNITED
STATES V. MILLER, 395 F. 2D 116 (CA7 1968).  WHAT EVIDENCE THERE IS,
THEN, RATHER STRONGLY SUGGESTS THAT NOTHING DISASTROUS WOULD HAPPEN IF
THE POLICE, BEFORE REQUESTING CONSENT, INFORMED THE SUBJECT THAT HE HAD
A RIGHT TO REFUSE CONSENT AND THAT HIS REFUSAL WOULD BE RESPECTED. 
/12/ 

I MUST CONCLUDE, WITH SOME RELUCTANCE, THAT WHEN THE COURT SPEAKS OF
PRACTICALITY, WHAT IT REALLY IS TALKING OF IS THE CONTINUED ABILITY OF
THE POLICE TO CAPITALIZE ON THE IGNORANCE OF CITIZENS SO AS TO
ACCOMPLISH BY SUBTERFUGE WHAT THEY COULD NOT ACHIEVE BY RELYING ONLY ON
THE KNOWING RELINQUISHMENT OF CONSTITUTIONAL RIGHTS.  OF COURSE IT
WOULD BE "PRACTICAL" FOR THE POLICE TO IGNORE THE COMMANDS OF THE
FOURTH AMENDMENT, IF BY PRACTICALITY WE MEAN THAT MORE CRIMINALS WILL
BE APPREHENDED, EVEN THOUGH THE CONSTITUTIONAL RIGHTS OF INNOCENT
PEOPLE ALSO GO BY THE BOARD.  BUT SUCH A PRACTICAL ADVANTAGE IS
ACHIEVED ONLY AT THE COST OF PERMITTING THE POLICE TO DISREGARD THE
LIMITATIONS THAT THE CONSTITUTION PLACES ON THEIR BEHAVIOR, A COST THAT
A CONSTITUTIONAL DEMOCRACY CANNOT LONG ABSORB. 

I FIND NOTHING IN THE OPINION OF THE COURT TO DISPEL MY BELIEF THAT,
IN SUCH A CASE, AS THE COURT OF APPEALS FOR THE NINTH CIRCUIT SAID,
"(UNDER MANY CIRCUMSTANCES A REASONABLE PERSON MIGHT READ AN OFFICER'S
'MAY I' AS THE COURTEOUS EXPRESSION OF A DEMAND BACKED BY FORCE OF
LAW."  BUSTAMONTE V. SCHNECKLOTH, 448 F. 2D 699, 701.  MOST CASES, IN
MY VIEW, ARE AKIN TO BUMPER V. NORTH CAROLINA, 391 U.S. 543 (1968):
CONSENT IS ORDINARILY GIVEN AS ACQUIESENCE IN AN IMPLICIT CLAIM OF
AUTHORITY TO SEARCH.  PERMITTING SEARCHES IN SUCH CIRCUMSTANCES,
WITHOUT ANY ASSURANCE AT ALL THAT THE SUBJECT OF THE SEARCH KNEW THAT,
BY HIS CONSENT, HE WAS RELINQUISHING HIS CONSTITUTIONAL RIGHTS, IS
SOMETHING THAT I CANNOT BELIEVE IS SANCTIONED BY THE CONSTITUTION. 

III 

THE PROPER RESOLUTION OF THIS CASE TURNS, I BELIEVE, ON A REALISTIC
ASSESSMENT OF THE NATURE OF THE INTERCHANGE BETWEEN CITIZENS AND THE
POLICE, AND OF THE PRACTICAL IMPORT OF ALLOCATING THE BURDEN OF PROOF
IN ONE WAY RATHER THAN ANOTHER.  THE COURT SEEKS TO ESCAPE SUCH
ASSESSMENTS BY ESCALATING ITS RHETORIC TO UNWARRANTED HEIGHTS, BUT NO
MATTER HOW FORCEFUL THE ADJECTIVES THE COURT USES, IT CANNOT AVOID
BEING JUDGED BY HOW WELL ITS IMAGE OF THESE INTERCHANGES ACCORDS WITH
REALITY.  ALTHOUGH THE COURT SAYS WITHOUT REAL ELABORATION THAT IT
"CANNOT AGREE," ANTE, AT 248, THE HOLDING TODAY CONFINES THE PROTECTION
OF THE FOURTH AMENDMENT AGAINST SEARCHES CONDUCTED WITHOUT PROBABLE
CAUSE TO THE SOPHISTICATED, THE ANALYSIS, THE COURT NOW SANCTIONS A
GAME OF BLINDMAN'S BUFF, IN WHICH THE POLICE ALWAYS HAVE THE UPPER
HAND, FOR THE SAKE OF NOTHING MORE THAN THE CONVENIENCE OF THE POLICE. 
BUT THE GUARANTEES OF THE FOURTH AMENDMENT WERE NEVER INTENDED TO
SHRINK BEFORE SUCH AN EPHEMERAL AND CHANGEABLE INTEREST.  THE FRAMERS
OF THE FOURTH AMENDMENT STRUCK THE BALANCE AGAINST THIS SORT OF
CONVENIENCE AND IN FAVOR OF CERTAIN BASIC CIVIL RIGHTS.  IT IS NOT FOR
THIS COURT TO RESTRIKE THAT BALANCE BECAUSE OF ITS OWN VIEWS OF THE
NEEDS OF LAW ENFORCEMENT OFFICERS.  I FEAR THAT THAT IS THE EFFECT OF
THE COURT'S DECISION TODAY. 

IT IS REGRETTABLE THAT THE OBSESSION WITH VALIDATING SEARCHES LIKE
THAT CONDUCTED IN THIS CASE, SO EVIDENT IN THE COURT'S HYPERBOLE, HAS
OBSCURED THE COURT'S VISION OF HOW THE FOURTH AMENDMENT WAS DESIGNED TO
GOVERN THE RELATIONSHIP BETWEEN POLICE AND CITIZEN IN OUR SOCIETY.  I
BELIEVE THAT EXPERIENCE AND CAREFUL REFLECTION SHOW HOW NARROW AND
INACCURATE THAT VISION IS, AND I RESPECTFULLY DISSENT. 

/1/  THE COURT HOLDS THAT ALCALA'S CONSENT TO SEARCH WAS SHOWN, IN
THE STATE COURT PROCEEDINGS, TO BE CONSTITUTIONALLY VALID AS A
RELINQUISHMENT OF HIS FOURTH AMENDMENT RIGHTS.  IN THOSE PROCEEDINGS,
NO EVIDENCE WAS ADDUCED AS TO ALCALA'S KNOWLEDGE OF HIS RIGHT TO REFUSE
ASSENT.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT, WHOSE JUDGMENT IS
TODAY REVERSED, WOULD HAVE REQUIRED PETITIONER TO PRODUCE SUCH
EVIDENCE.  AS DISCUSSED BELOW, INFRA, AT 286, THE COURT OF APPEALS DID
NOT HOLD THAT THE POLICE MUST INFORM A SUBJECT OF INVESTIGATION OF HIS
RIGHT TO REFUSE ASSENT AS AN ESSENTIAL PREDICATE TO THEIR EFFORT TO
SECURE CONSENT TO SEARCH. 

/2/  THE COURT CONCEDES THAT THE POLICE LACKED PROBABLE CAUSE TO
SEARCH.  ANTE, AT 227 - 228.  AT THE TIME THE SEARCH WAS CONDUCTED,
THERE WERE THREE POLICE VEHICLES NEAR THE CAR.  270 CAL. APP. 2D 648,
651, 76 CAL. RPTR.  17, 19 (1969).  PERHAPS THE POLICE IN FACT HAD SOME
REASON, NOT DISCLOSED IN THIS RECORD, TO BELIEVE THAT A SEARCH WOULD
TURN UP INCRIMINATING EVIDENCE.  BUT IT IS ALSO POSSIBLE SEARCH WOULD
TURN UP INCRIMINATING EVIDENCE.  BUT IT IS ALSO POSSIBLE THAT THE LATE
HOUR AND THE NUMBER OF MEN IN THE CAR SUGGESTED TO THE FIRST OFFICER ON
THE SCENE THAT IT WOULD BE PRUDENT TO WAIT UNTIL OTHER OFFICERS HAD
ARRIVED BEFORE INVESTIGATING ANY FURTHER. 

/3/  BECAUSE BUSTAMONTE WAS CHARGED WITH POSSESSING STOLEN CHECKS
FOUND IN THE SEARCH AT WHICH HE WAS PRESENT, HE WAS STANDING TO OBJECT
TO THE SEARCH EVEN THOUGH HE CLAIMS NO POSSESSORY OR PROPRIETARY
INTEREST IN THE CAR.  JONES V. UNITED STATES, 362 U.S. 257 (1960).  CF.
PEOPLE V. IBARRA, 60 CAL. 2D 460, 386 P. 2D 487 (1963); PEOPLE V.
PEREZ, 62 CAL. 2D 769, 401 P. 2D 934 (1965). 

/4/  THE COURT READS DAVIS V. UNITED STATES, 328 U.S. 582 (1946), AS
UPHOLDING A SEARCH LIKE THE ONE IN THIS CASE ON THE BASIS OF CONSENT. 
BUT IT WAS CENTRAL TO THE REASONING OF THE COURT IN THAT CASE THAT THE
ITEMS SEIZED WERE THE PROPERTY OF THE GOVERNMENT TEMPORARILY IN DAVIS'
CUSTODY.  SEE ID., AT 587 - 593.  THE AGENTS OF THE GOVERNMENT WERE
THUS SIMPLY DEMANDING THAT PROPERTY TO WHICH THEY HAD A LAWFUL CLAIM BE
RETURNED TO THEM.  BECAUSE OF THIS, THE COURT HELD THAT "PERMISSIBLE
LIMITS OF PERSUASION ARE NOT SO NARROW AS WHERE PRIVATE PAPERS ARE
SOUGHT."  ID., AT 593.  THE OPINION OF THE COURT THEREFORE EXPLICITLY
DISCLAIMED STATING A GENERAL RULE FOR ORDINARY SEARCHES FOR EVIDENCE. 
THAT THE DISTINCTION, FOR PURPOSES OF FOURTH AMENDMENT ANALYSIS,
BETWEEN MERE EVIDENCE AND CONTRABAND OR INSTRUMENTALITIES HAS NOW BEEN
ABOLISHED, WARDEN V. HAYDEN, 387 U.S. 394 (1967), IS NO REASON TO
DISREGARD THE FACT THAT WHEN DAVIS WAS DECIDED, THAT DISTINCTION PLAYED
AN IMPORTANT ROLE IN SHAPING ANALYSIS. 

IN ZAP V. UNITED STATES, 328 U.S. 624, 628 (1946), THE COURT HELD
THAT "WHEN PETITIONER, IN ORDER TO OBTAIN THE GOVERNMENT'S BUSINESS,
SPECIFICALLY AGREED TO PERMIT INSPECTION OF HIS ACCOUNTS AND RECORDS,
HE VOLUNTARILY WAIVED SUCH CLAIM TO PRIVACY WHICH HE OTHERWISE MIGHT
HAVE HAD AS RESPECTS BUSINESS DOCUMENTS RELATED TO THOSE CONTRACTS." 
BECAUSE ZAP HAD SIGNED A CONTRACT SPECIFICALLY PROVIDING THAT HIS
RECORDS WOULD BE OPEN AT ALL TIME TO THE GOVERNMENT, HE HAD INDEED
WAIVED HIS RIGHT TO KEEP THOSE RECORDS PRIVATE.  CF. UNITED STATES V.
BISWELL, 406 U.S. 311 (1972). 

/5/  ASIDE FROM ZAP AND DAVIS, SUPRA, N. 4, I HAVE FOUND NO CASES
DECIDED BY THIS COURT EXPLICTLY UPHOLDING A SEARCH BASED ON THE CONSENT
OF THE DEFENDANT.  IT IS HARDLY SURPRISING, THEN, THAT "(THE APPROACH
OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT FINDS NO SUPPORT OF ANY
OF OUR DECISIONS," ANTE, AT 229.  BUT IN NEARLY EVERY CASE DISCUSSING
THE PROBLEM AT LENGTH, THE COURT REFERRED TO CONSENT AS A WAIVER.  AND
IT MISCHARACTERIZES THOSE CASES TO DESCRIBE THEM AS ANALYZING THE
TOTALITY OF THE CIRCUMSTANCES, ANTE, AT 243 N. 31.  SEE INFRA, AT 283 -
284. 

/6/  THAT THIS APPLICATION OF THE "DOMINO" METHOD OF ADJUDICATION IS
MISGUIDED IS SHOWN, I BELIEVE, BY THE FACT THAT THE PHRASE "VOLUNTARY
CONSENT" SEEMS REDUNDANT IN A WAY THAT THE PHRASE "VOLUNTARY
CONFESSION" DOES NOT. 

/7/  THE COURT USED THE TERMS "VOLUNTARY" OR "INVOLUNTARY" IN THOSE
CASES AS SHORTHAND LABELS FOR AN ASSESSMENT OF THE POLICE BEHAVIOR IN
LIGHT OF THE PARTICULAR CHARACTERISTICS OF THE INDIVIDUAL DEFENDANT
BECAUSE BEHAVIOR THAT MIGHT NOT BE COERCIVE OF SOME INDIVIDUALS MIGHT
NONETHELESS COMPEL OTHERS TO GIVE INCRIMINATING STATEMENTS.  SEE, E.
G., HALEY V. OHIO, 332 U.S. 596, 599 (1948); STEIN V. NEW YORK, 346
U.S. 156, 599 (1948); STEIN V. NEW YORK, 346 U.S. 156, 185 (1953);
FIKES V. ALABAMA, 352 U.S. 191 (1957). 

/8/  I, OF COURSE, AGREE WITH THE COURT'S ANALYSIS TO THE EXTENT
THAT IT TREATS A VERBAL EXPRESSION OF ASSENT AS NO TRUE CONSENT WHEN IT
IS ELICITED THROUGH COMPULSION.  ANTE, AT 229.  SINCE, IN MY VIEW, IT
IS JUST AS UNCONSTITUTIONAL TO SEARCH AFTER COERCING CONSENT AS IT IS
TO SEARCH AFTER UNINFORMED CONSENT, I AGREE WITH THE RATIONALE OF AMOS
V. UNITED STATES, 255 U.S. 313 (1921), JOHNSON V. UNITED STATES, 333
U.S. 10 (1948), AND BUMPER V. NORTH CAROLINA, 391 U.S. 543 (1968). 
THAT AN ALTERNATIVE RATIONALE MIGHT HAVE BEEN USED IN THOSE CASES SEEMS
TO ME IRRELEVANT. 

/9/  SEE, E. G., COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443 (1971);
CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969); WARDEN V. HAYDEN, 387 U.S.
294 (1967). 

IN CHIMEL, WE EXPLAINED THAT SEARCHES INCIDENT TO ARREST WERE
JUSTIFIED BY THE NEED TO PROTECT OFFICERS FROM ATTACKS BY THE PERSONS
THEY HAVE ARRESTED, AND BY THE NEED TO ASSURE THAT EASILY DESTRUCTIBLE
EVIDENCE IN THE REACH OF THE SUSPECT WILL NOT BE DESTROYED.  395 U.S.,
AT 762 - 763.  AND IN COOLIDGE, WE SAID THAT SEARCHES OF AUTOMOBILES ON
THE HIGHWAY ARE JUSTIFIED BECAUSE AN ALERTED CRIMINAL MIGHT EASILY
DRIVE THE EVIDENCE AWAY WHILE A WARRANT WAS SOUGHT.  403 U.S., AT 459 -
462.  IN NEITHER SITUATION IS POLICE CONVENIENCE ALONE A SUFFICIENT
REASON FOR ESTABLISHING AN EXCEPTION TO THE WARRANT REQUIREMENT.  YET
THE COURT TODAY SEEMS TO SAY THAT CONVENIENCE ALONE JUSTIFIES CONSENT
SEARCHES.     /10/  THE COURT'S INTERPRETATION OF JOHNSON V. UNITED
STATES, 333 U.S. 10 (1948), A SIMILAR CASE, IS BAFFLING.  THE COURT IN
JOHNSON DID NOT IN FACT ANALYZE THE TOTALITY OF THE CIRCUMSTANCES, AS
THE COURT NOW ARGUES, ANTE, AT 243 N. 31; THE SINGLE FACT THAT THE
POLICE CLAIMED AUTHORITY TO SEARCH WHEN IN TRUTH THEY LACKED SUCH
AUTHORITY CONCLUSIVELY ESTABLISHED THAT NO VALID CONSENT HAD BEEN
GIVEN. 

/11/  THE PROPOSITION REJECTED IN THE CASES CITED BY THE COURT IN
NN. 13 AND 14, WAS THAT, AS IN MIRANDA V. ARIZONA, 384 U.S. 436 (1966),
A STATEMENT TO THE SUBJECT OF HIS RIGHTS MUST BE GIVEN AS AN
INDISPENSABLE PREREQUISITE TO A REQUEST FOR CONSENT TO SEARCH.  THIS
CASE DOES NOT REQUIRE US TO ADDRESS THAT PROPOSITION, FOR ALL THAT IS
INVOLVED HERE IS THE CONTENTION THAT THE PROSECUTION COULD SATISFY THE
BURDEN OF ESTABLISHING THE KNOWLEDGE OF THE SUBJECT TO REFUSE CONSENT
BY SHOWING THAT THE POLICE ADVISED THE SUBJECT OF A SEARCH, THAT IS
SOUGHT TO BE JUSTIFIED BY CONSENT, OF THAT RIGHT. 

/12/  THE COURT'S SUGGESTION THAT IT WOULD BE "UNREALISTIC" TO
REQUIRE THE OFFICERS TO MAKE "THE DETAILED TYPE OF EXAMINATION"
INVOLVED WHEN A COURT CONSIDERS WHETHER A DEFENDANT HAS WAIVED A TRIAL
RIGHT, ANTE, AT 245, DESERVES LITTLE COMMENT.  THE QUESTION BEFORE US
RELATES TO THE INQUIRY TO BE MADE IN COURT WHEN THE PROSECUTION SEEKS
TO ESTABLISH THAT CONSENT WAS GIVEN.  I THEREFORE DO NOT ADDRESS THE
COURT'S STRAINED ARGUMENT THAT ONE MAY WAIVE CONSTITUTIONAL RIGHTS
WITHOUT MAKING A KNOWING AND INTENTIONAL CHOICE SO LONG AS THE RIGHTS
DO NOT RELATE TO THE FAIRNESS OF A CRIMINAL TRIAL.  I WOULD SUGGEST,
HOWEVER, THAT THE ARGUMENT IS FUNDAMENTALLY INCONSISTENT WITH THE LAW
OF UNCONSTITUTIONAL CONDITIONS.  SEE, E. G., PERRY V. SINDERMANN, 408
U.S. 593 (1972); SHAPIRO V. THOMPSON, 394 U.S. 618 (1969); SHERBERT V.
VERNER, 374 U.S. 398 (1963); SPEISER V. RANDALL, 357 U.S. 513 (1958). 
THE DISCUSSION OF UNITED STATES V. WADE, 388 U.S. 218 (1967), ANTE, AT
239 - 240, ALSO SEEMS INCONSISTENT WITH THE OPINION OF MR. JUSTICE
STEWART IN KIRBY V. ILLINOIS, 406 U.S. 682 (1972).  IN ANY EVENT, I DO
NOT UNDERSTAND HOW ONE CAN RELINQUISH A RIGHT WITHOUT KNOWING OF ITS
EXISTENCE, AND THAT IS THE ONLY ISSUE IN THIS CASE. 

/13/  THE COURT'S HALF-HEARTED DEFENSE, THAT LACK OF KNOWLEDGE IS TO
BE "TAKEN INTO ACCOUNT," RINGS RATHER HOLLOW, IN LIGHT OF THE APPARENT
IMPORT OF THE OPINION THAT EVEN A SUBJECT WHO PROVES HIS LACK OF
KNOWLEDGE MAY NONETHELESS HAVE CONSENTED "VOLUNTARILY," UNDER THE
COURT'S PECULIAR DEFINITION OF VOLUNTARINESS. 

ROBERT R. GRANUCCI, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE EVELLE J.
YOUNGER, ATTORNEY GENERAL, HERBERT L. ASHBY, CHIEF ASSISTANT ATTORNEY
GENERAL, DORIS H. MAIER, ASSISTANT ATTORNEY GENERAL, AND EDWARD P.
O'BRIEN, DEPUTY ATTORNEY GENERAL. 

STUART P. TOBISMAN, BY APPOINTMENT OF THE COURT, 405 U.S. 1062,
ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT PRO HAC VICE. 

WILLIAM J. SCOTT, ATTORNEY GENERAL, AND JAMES B. ZAGEL AND JAYNE A.
CARR, ASSISTANT ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF
ILLINOIS ET AL. AS AMICI CURIAE URGING REVERSAL. 

MELVIN L. WULF, SANFORD J. ROSEN, JOEL M. GORA, A. L. WIRIN, FRED
OKRAND, AND LAWRENCE R. SPERBER FILED A BRIEF FOR THE AMERICAN CIVIL
LIBERTIES UNION ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :




CUPP V. MURPHY 412 U.S. 291 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT 

     NO.72 - 212.  ARGUED MARCH 20, 1973--DECIDED MAY 29, 1973; 461
F. 2D 1006, REVERSED. 


    OVER RESPONDENT'S PROTEST AND WITHOUT A WARRENT, POLICE IN THE

  COURSE OF STATION HOUSE QUESTIONING IN CONNECTION WITH A MURDER

  TOOK SAMPLES FROM THE RESPONDENT'S FINGERNAILS AND DISCOVERED

  EVIDENCE USED TO CONVICT HIM.  RESPONDENT HAD COME TO THE STATION

  HOUSE VOLUNTARILY AND HAD NOT BEEN ARRESTED, ALTHOUGH HE WAS

  DETAINED AND THERE WAS PROBABLE CAUSE TO BELIEVE THAT HE HAD

  COMMITTED THE MURDER.  IN REVERSING THE DISTRICT COURT'S DENIAL

  OF HABEAS CORPUS, THE COURT OF APPEALS CONCLUDED THAT, ABSENT

ARREST OR OTHER EXIGENT CIRCUMSTANCES, THE SEARCH WAS

  UNCONSTITUTIONAL.  HELD:  IN VIEW OF THE STATION HOUSE DETENTION

  UPON PROBABLE CAUSE, THE VERY LIMITED INTRUSION UNDERTAKEN TO

  PRESERVE HIGHLY EVANESCENT EVIDENCE WAS NOT VIOLATIVE OF THE

  FOURTH AND FOURTEENTH AMENDMENTS.  PP. 293 - 296. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, MARSHALL, BLACKMUN, POWELL, AND REHNQUIST, JJ.,
JOINED.  WHITE, J., FILED A CONCURRING STATEMENT, POST, P. 297. 
MARSHALL, J., FILED A CONCURRING OPINION, POST, P. 297.  BLACKMUN, J.,
FILED A CONCURRING OPINION, IN WHICH BURGER, C. J., JOINED, POST, P.
300.  POWELL, J., FILED A CONCURRING OPINION, IN WHICH BURGER, C. J.,
AND REHNQUIST, J., JOINED, POST, P. 300.  DOUGLAS, J., POST, P. 301,
AND BRENNAN, J., POST, P. 305, FILED OPINIONS DISSENTING IN PART. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, DANIEL MURPHY, WAS CONVICTED BY A JURY IN AN OREGON
COURT OF THE SECOND-DEGREE MURDER OF HIS WIFE.  THE VICTIM DIES BY
STRANGULATION IN HER HOME IN THE CITY OF PORTLAND, AND ABRASIONS AND
LACERATIONS WERE FOUND ON HER THROAT.  THERE WAS NO SIGN OF A BREAK-IN
OR ROBBERY.  WORD OF THE MURDER WAS SENT TO THE RESPONDENT, WHO WAS NOT
THEN LIVING WITH HIS WIFE.  UPON RECEIVING THE MESSAGE, MURPHY PROMPTLY
TELEPHONED THE PORTLAND POLICE AND VOLUNTARILY CAME INTO PORTLAND FOR
QUESTIONING.  SHORTLY AFTER THE RESPONDENT'S ARRIVAL AT THE STATION
HOUSE, WHERE HE WAS MET BY RETAINED COUNSEL, THE POLICE NOTICED A DARK
SPOT ON THE RESPONDENT'S FINGER.  SUSPECTING THAT THE SPOT MIGHT BE
DRIED BLOOD AND KNOWING THAT EVIDENCE OF STRANGULATION IS OFTEN FOUND
UNDER THE ASSAILANT'S FINGERNAILS, THE POLICE ASKED MURPHY IF THEY
COULD TAKE A SAMPLE OF SCRAPINGS FROM HIS FINGERNAILS.  HE REFUSED. 
UNDER PROTEST AND WITHOUT A WARRANT, THE POLICE PROCEEDED TO TAKE THE
SAMPLES, WHICH TURNED OUT TO CONTAIN TRACES OF SKIN AND BLOOD CELLS,
AND FABRIC FROM THE VICTIM'S NIGHTGOWN.  THIS INCRIMINATING EVIDENCE
WAS ADMITTED AT THE TRIAL. 

THE RESPONDENT APPEALED HIS CONVICTION, CLAIMING THAT THE FINGERNAIL
SCRAPINGS WERE THE PRODUCT OF AN UNCONSTITUTIONAL SEARCH UNDER THE
FOURTH AND FOURTEENTH AMENDMENTS.  THE OREGON COURT OF APPEALS AFFIRMED
THE CONVICTION, 2 ORE.  APP.  251, 465 P. 2D 900, AND WE DENIED
CERTIORARI, 400 U.S. 944.  MURPHY THEN COMMENCED THE PRESENT ACTION FOR
FEDERAL HABEAS CORPUS RELIEF.  THE DISTRICT COURT, IN AN UNREPORTED
DECISION, DENIED THE HABEAS PETITION, AND THE COURT OF APPEALS FOR THE
NINTH CIRCUIT REVERSED, 461 F. 2D 1006.  THE COURT OF APPEALS ASSUMED
THE PRESENCE OF PROBABLE CAUSE TO SEARCH OR ARREST, BUT HELD THAT IN
THE ABSENCE OF AN ARREST OR OTHER EXIGENT CIRCUMSTANCES, THE SEARCH WAS
UNCONSTITUTIONAL.  ID., AT 1007.  WE GRANTED CERTIORARI, 409 U.S. 1036,
TO CONSIDER THE CONSTITUTIONAL QUESTION PRESENTED. 

THE TRIAL COURT, THE OREGON COURT OF APPEALS, AND THE FEDERAL
DISTRICT COURT ALL AGREED THAT THE POLICE HAD PROBABLE CAUSE TO ARREST
THE RESPONDENT AT THE TIME THEY DETAINED HIM AND SCRAPED HIS
FINGERNAILS.  AS THE OREGON COURT OF APPEALS SAID, 

"AT THE TIME THE DETECTIVES TOOK THESE SCRAPINGS THEY KNEW: 

     "THE BEDROOM IN WHICH THE WIFE WAS FOUND DEAD SHOWED NO SIGNS

  OF A DISTURBANCE, WHICH FACT TENDED TO INDICATE A KILLER KNOWN TO

  THE VICTIM RATHER THAN TO A BURGLAR OR OTHER STRANGER. 

     "THE DECEDENT'S SON, THE ONLY OTHER PERSON IN THE HOUSE THAT

  NIGHT, DID NOT HAVE FINGERNAILS WHICH COULD HAVE MADE THE

  LACERATIONS OBSERVED ON THE VICTIM'S THROAT. 

     "THE DEFENDANT AND HIS DECEASED WIFE HAD HAD A STORMY MARRIAGE
AND DID NOT GET ALONG WELL. 

     "THE DEFENDANT HAD, IN FACT, BEEN AT HIS HOME ON THE NIGHT OF

  THE MURDER.  HE LEFT AND DROVE BACK TO CENTRAL OREGON CLAIMING

  THAT HE DID NOT ENTER THE HOUSE OR SEE HIS WIFE.  HE VOLUNTEERED

  A GREAT DEAL OF INFORMATION WITHOUT BEING ASKED, YET EXPRESSED NO

  CONCERN OR CURIOSITY ABOUT HIS WIFE'S FATE."  2 ORE.  APP., AT
259

  - 260, 465 P. 2D, AT 904. 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT DID NOT DISAGREE WITH THE
CONCLUSION THAT THE POLICE HAD PROBABLE CAUSE TO MAKE AN ARREST, 461 F.
2D, AT 1007, NOR DO WE. 

IT IS ALSO UNDISPUTED THAT THE POLICE DID NOT OBTAIN AN ARREST
WARRANT OR FORMALLY "ARREST" THE RESPONDENT, AS THAT TERM IS UNDERSTOOD
UNDER OREGON LAW.  /1/  THE RESPONDENT WAS DETAINED ONLY LONG ENOUGH TO
TAKE THE FINGERNAIL SCRAPINGS, AND WAS NOT FORMALLY "ARRESTED" UNTIL
APPROXIMATELY ONE MONTH LATER.  NEVERTHELESS, THE DETENTION OF THE
RESPONDENT AGAINST HIS WILL CONSTITUTED A SEIZURE OF HIS PERSON, AND
THE FOURTH AMENDMENT GUARANTEE OF FREEDOM FROM "UNREASONABLE SEARCHES
AND SEIZURES" IS CLEARLY IMPLICATED, CF. UNITED STATES V. DIONISIO, 410
U.S. 1, TERRY V. OHIO, 392 U.S. 1, 19.  AS THE COURT SAID IN DAVIS V.
MISSISSIPPI, 394 U.S. 721, 726 - 727, "NOTHING IS MORE CLEAR THAN THAT
THE FOURTH AMENDMENT WAS MEANT TO PREVENT WHOLESALE INTRUSIONS UPON THE
PERSONAL SECURITY OF OUR CITIZENRY, WHETHER THESE INTRUSIONS BE TERMED
'ARRESTS'  OR 'INVESTIGATORY DETENTIONS.'" 

IN DAVIS, THE COURT HELD THAT FINGERPRINTS OBTAINED DURING THE BRIEF
DETENTION OF PERSONS SEIZED IN A POLICE DRAGNET PROCEDURE, WITHOUT
PROBABLE CAUSE, WERE INADMISSIBLE IN EVIDENCE.  THOUGH THE COURT
RECOGNIZED THAT FINGERPRINTING "INVOLVES NONE OF THE PROBING INTO AN
INDIVIDUAL'S PRIVATE LIFE AND THOUGHTS THAT MARKS AN INTERROGATION OR
SEARCH," 394 U.S., AT 727, THE COURT HELD THE STATION HOUSE DETENTION
IN THAT CASE TO BE VIOLATIVE OF THE FOURTH AND FOURTEENTH AMENDMENTS. 
"INVESTIGATORY SEIZURES WOULD SUBJECT UNLIMITED NUMBERS OF INNOCENT
PERSONS TO THE HARASSMENT AND IGNOMINY INCIDENT TO INVOLUNTARY
DETENTION," ID., AT 726. 

THE RESPONDENT IN THIS CASE, LIKE DAVIS, WAS BRIEFLY DETAINED AT THE
STATION HOUSE.  YET HERE, THERE WAS, AS THREE COURTS HAVE FOUND,
PROBABLE CAUSE TO BELIEVE THAT THE RESPONDENT HAD COMMITTED THE
MURDER.  THE VICE OF THE DETENTION IN DAVIS IS THEREFORE ABSENT IN THE
CASE BEFORE US.  CF. UNITED STATES V. DIONSIO, SUPRA. 

THE INQUIRY DOES NOT END HERE, HOWEVER, BECAUSE MURPHY WAS SUBJECTED
TO A SEARCH AS WELL AS A SEIZURE OF HIS PERSON.  UNLIKE THE
FINGERPRINTING IN DAVIS, THE VOICE EXEMPLAR OBTAINED IN UNITED STATES
V. DIONISIO, SUPRA, OR THE HANDWRITING EXEMPLAR OBTAINED IN UNITED
STATES V. MARA, 410 U.S. 19, THE SEARCH OF THE RESPONDENT'S FINGERNAILS
WENT BEYOND MERE "PHYSICAL CHARACTERISTICS . . . CONSTANTLY EXPOSED TO
THE PUBLIC," UNITED STATES V. DIONISIO, SUPRA, AT 14, AND CONSTITUTED
THE TYPE OF "SEVERE, THOUGH BRIEF, INTRUSION UPON CHERISHED PERSONAL
SECURITY" THAT IS SUBJECT TO CONSTITUTIONAL SCRUTINY.  TERRY V. OHIO,
SUPRA, AT 24 - 25. 

WE BELIEVE THIS SEARCH WAS CONSTITUTIONALLY PERMISSIBLE UNDER THE
PRINCIPLES OF CHIMEL V. CALIFORNIA, 395 U.S. 752.  CHIMEL STANDS IN A
LONG LINE OF CASES RECOGNIZING AN EXCEPTION TO THE WARRANT REQUIREMENT
WHEN A SEARCH IS INCIDENT TO A VALID ARREST.  ID., AT 755 - 762.  THE
BASIS FOR THIS EXCEPTION IS THAT WHEN AN ARREST IS MADE, IT IS
REASONABLE FOR A POLICE OFFICER TO EXPECT THE ARRESTEE TO USE ANY
WEAPONS HE MAY HAVE AND TO ATTEMPT TO DESTROY ANY INCRIMINATING
EVIDENCE THEN IN HIS POSSESSION.  ID., AT 762 - 763.  THE COURT
RECOGNIZED IN CHIMEL THAT THE SCOPE OF A WARRANTLESS SEARCH MUST BE
COMMENSURATE WITH THE RATIONALE THAT EXCEPTS THE SEARCH FROM THE
WARRANT REQUIREMENT.  /2/  THUS, A WARRANTLESS SEARCH INCIDENT TO
ARREST, THE COURT HELD IN CHIMEL, MUST BE LIMITED TO THE AREA "INTO
WHICH AN ARRESTEE MIGHT REACH."  395 U.S., AT 763. 

WHERE THERE IS NO FORMAL ARREST, AS IN THE CASE BEFORE US, A PERSON
MIGHT WELL BE LESS HOSTILE TO THE POLICE AND LESS LIKELY TO TAKE
CONSPICUOUS, IMMEDIATE STEPS TO DESTROY INCRIMINATING EVIDENCE ON HIS
PERSON.  SINCE HE KNOWS HE IS GOING TO BE RELEASED, HE MIGHT BE LIKELY
INSTEAD TO BE CONCERNED WITH DIVERTING ATTENTION AWAY FROM HIMSELF. 
ACCORDINGLY, WE DO NOT HOLD THAT A FULL CHIMEL SEARCH WOULD HAVE BEEN
JUSTIFIED IN THIS CASE WITHOUT A FORMAL ARREST AND WITHOUT A WARRANT. 
BUT THE RESPONDENT WAS NOT SUBJECTED TO SUCH A SEARCH. 

AT THE TIME MURPHY WAS BEING DETAINED AT THE STATION HOUSE, HE WAS
OBVIOUSLY AWARE OF THE DETECTIVES' SUSPICIONS.  THOUGH HE DID NOT HAVE
THE FULL WARNING OF OFFICIAL SUSPICION THAT A FORMAL ARREST PROVIDES,
MURPHY WAS SUFFICIENTLY APPRISED OF HIS SUSPECTED ROLE IN THE CRIME TO
MOTIVATE HIM TO ATTEMPT TO DESTROY WHAT EVIDENCE HE COULD WITHOUT
ATTRACTING FURTHER ATTENTION.  TESTIMONY AT TRIAL INDICATED THAT AFTER
HE REFUSED TO CONSENT TO THE TAKING OF FINGERNAIL SAMPLES, HE PUT HIS
HANDS BEHIND HIS BACK AND APPEARED TO RUB THEM TOGETHER.  HE THEN PUT
HIS HANDS IN HIS POCKETS, AND A "METALLIC SOUND, SUCH AS KEYS OR CHANGE
RATTLING" WAS HEARD.  THE RATIONALE OF CHIMEL, IN THESE CIRCUMSTANCES,
JUSTIFIED THE POLICE IN SUBJECTING HIM TO THE VERY LIMITED SEARCH
NECESSARY TO PRESERVE THE HIGHLY EVANESCENT EVIDENCE THEY FOUND UNDER
HIS FINGERNAILS, CF. SCHMERBER V. CALIFORNIA, 384 U.S. 757. 

ON THE FACTS OF THIS CASE, CONSIDERING THE EXISTENCE OF PROBABLE
CAUSE, THE VERY LIMITED INTRUSION UNDERTAKEN INCIDENT TO THE STATION
HOUSE DETENTION, AND THE READY DESTRUCTIBILITY OF THE EVIDENCE, WE
CANNOT SAY THAT THIS SEARCH VIOLATED THE FOURTH AND FOURTEENTH
AMENDMENTS.  ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  OREGON DEFINES ARREST AS "THE TAKING OF A PERSON INTO CUSTODY
SO THAT HE MAY BE HELD TO ANSWER FOR A CRIME."  ORE.  REV. STAT. ^
133.210. 

/2/  AS THE COURT STATED IN TERRY V. OHIO, "OUR INQUIRY IS A DUAL
ONE--WHETHER THE OFFICER'S ACTION WAS JUSTIFIED AT ITS INCEPTION, AND
WHETHER IT WAS REASONABLY RELATED IN SCOPE TO THE CIRCUMSTANCES WHICH
JUSTIFIED THE INTERFERENCE IN THE FIRST PLACE."  392 U.S. 1, 19 - 20. 

MR. JUSTICE WHITE JOINS THE OPINION OF THE COURT BUT DOES NOT
CONSIDER THE ISSUE OF PROBABLE CAUSE TO HAVE BEEN DECIDED HERE OR TO BE
FORECLOSED ON REMAND TO THE COURT OF APPEALS WHERE IT HAS NEVER BEEN
CONSIDERED. 

MR. JUSTICE MARSHALL, CONCURRING. 

I JOIN THE OPINION OF MY BROTHER STEWART. 

MURPHY'S FREEDOM OF MOVEMENT WAS UNQUESTIONABLY LIMITED WHEN THE
POLICE DID NOT ACQUIESCE IN HIS REFUSAL TO PERMIT THEM TO TAKE
SCRAPINGS FROM HIS FINGERNAILS.  BUT THAT DETENTION, ALTHOUGH A SEIZURE
OF THE PERSON PROTECTED BY THE FOURTH AMENDMENT, DID NOT AMOUNT TO AN
ARREST UNDER OREGON LAW.  SEE ORE.  REV.  STAT. ^ 133.210.  THE POLICE,
UNDERSTANDING THIS, DID NOT, FOR EXAMPLE, TAKE MURPHY PROMPTLY BEFORE A
MAGISTRATE AFTER THIS DETENTION, AS STATE LAW REQUIRES AFTER AN
ARREST.  ORE.  REV. STAT. ^ 133.550.  /1/  AS WE HAVE SAID BEFORE,
HOWEVER, "IT IS QUITE PLAIN THAT THE FOURTH AMENDMENT GOVERNS
'SEIZURES' OF THE PERSON WHICH DO NOT EVENTUATE IN A TRIP TO THE
STATION HOUSE AND PROSECUTION FOR CRIME--'ARRESTS' IN TRADITIONAL
TERMINOLOGY.  IT MUST BE RECOGNIZED THAT WHENEVER A POLICE OFFICER
ACCOSTS AN INDIVIDUAL AND RESTRAINS HIS FREEDOM TO WALK AWAY, HE HAS
'SEIZED' THAT PERSON."  TERRY V. OHIO, 392 U.S. 1, 16 (1968).  SEE ALSO
ID., AT 19 N. 16, 26; SIBRON V. NEW YORK, 392 U.S. 40, 67 (1968). 

MURPHY ARGUES, HOWEVER, THAT THE DETENTION WAS UNLAWFUL BECAUSE THE
POLICE DID NOT SATISFY "THE GENERAL REQUIREMENT THAT THE AUTHORIZATION
OF A JUDICIAL OFFICER BE OBTAINED IN ADVANCE OF DETENTION," DAVIS V.
MISSISSIPPI, 394 U.S. 721, 728 (1969).  SEE ALSO TERRY V. OHIO, SUPRA,
AT 20.  BUT UNTIL THE OFFICER SAW A DARK SPOT UNDER MURPHY'S THUMBNAIL,
AND REMEMBERED THAT HE HAD SEEN LACERATIONS ON THE THROAT OF THE
DECEASED, HE HAD NO REASON TO DETAIN MURPHY FOR THE LIMITED PURPOSE OF
TAKING FINGERNAIL SCRAPINGS.  THEN, WHEN HE BROUGHT TO MURPHY'S
ATTENTION HIS INTEREST IN TAKING SUCH SCRAPINGS, HE WAS DEALING WITH A
SUSPECT ALERTED TO THE DESIRE OF THE POLICE TO INSPECT HIS
FINGERNAILS.  AT THAT POINT, THERE WAS NO WAY TO PRESERVE THE STATUS
QUO WHILE A WARRANT WAS SOUGHT, AND THERE WAS GOOD REASON TO BELIEVE
THAT MURPHY MIGHT ATTEMPT TO ALTER THE STATUS QUO UNLESS HE WERE
PREVENTED FROM DOING SO.  THE POLICE COULD NOT ASSURE THE PRESERVATION
OF THE EVIDENCE SIMPLY BY PLACING MURPHY UNDER CLOSE SURVEILLANCE,
BECAUSE OF THE NATURE OF THE EVIDENCE.  AND, FOR PURPOSES OF FOURTH
AMENDMENT ANALYSIS, DETAINING HIM WHILE A WARRANT WAS SOUGHT WOULD HAVE
BEEN AS MUCH A SEIZURE AS DETAINING HIM WHILE HIS FINGERNAILS WERE
SCRAPED.  IF THE FOURTH AMENDMENT PERMITS A STOP-AND-FRISK WHEN THE
POLICE HAVE SPECIFIC ARTICULABLE FACTS FROM WHICH THEY MAY INFER THAT A
PERSON, WHO THEY SUSPECT IS ABOUT TO COMMIT A CRIME, IS ARMED AND
DANGEROUS, TERRY V. OHIO, SUPRA, IT ALSO PERMITS DETENTION, WHERE THE
POLICE HAVE PROBABLE CAUSE TO ARREST, /2/  TO TAKE FINGERNAIL SCRAPINGS
IN THE CIRCUMSTANCES OF THIS CASE.  /3/ 

MURPHY'S ARGUMENT IS, OF COURSE, A TROUBLESOME ONE, AND, IF THE
POLICE HAD DONE MORE THAN TAKE FINGERNAIL SCRAPINGS, I WOULD BE
INCLINED TO HOLD THE SEARCH ILLEGAL.  FOR, AS A GENERAL PRINCIPLE OF
THE LAW OF THE FOURTH AMENDMENT, THE SCOPE OF A SEARCH MUST BE STRICTLY
LIMITED IN TERMS OF THE CIRCUMSTANCES THAT JUSTIFY THE SEARCH.  SEE, E.
G., TERRY V. OHIO, SUPRA, AT 19 - 20; CHIMEL V. CALIFORNIA, 395 U.S.
752 (1969).  WHEN A PERSON IS DETAINED, BUT NOT ARRESTED, THE DETENTION
MUST BE JUSTIFIED BY PARTICULARIZED POLICE INTERESTS OTHER THAN A
DESIRE TO INITIATE A CRIMINAL PROCEEDING AGAINST THE PERSON THEY
DETAIN.  THE POLICE THEREFORE CANNOT DO MORE THAN INVESTIGATE THE
CIRCUMSTANCES THAT OCCASION THE DETENTION.  IN THIS CASE, THE POLICE
LIMITED THEIR INTRUSION TO PRECISELY THE AREA THAT LED THEM TO RESTRICT
MURPHY'S FREEDOM; HE WAS NOT SEARCHED AS EXTENSIVELY AS HE MIGHT HAVE
BEEN HAD AN ARREST OCCURRED.  INDEED, IN MY VIEW, THE FOURTH AMENDMENT
WOULD HAVE BARRED A MORE EXTENSIVE SEARCH, FOR THE POLICE HAD NO REASON
AT ALL TO BELIEVE THAT MURPHY HAD ON HIS PERSON MORE EVIDENCE RELATING
TO THE CRIME, OR, IN LIGHT OF THE FACT THAT THIS CASE INVOLVED A
STRANGULATION, A WEAPON THAT HE MIGHT USE AT THE STATION HOUSE. 

I REALIZE THAT EXCEPTIONS TO THE WARRANT REQUIREMENT MAY BE
ESTABLISHED BECAUSE OF "POWERFUL HYDRAULIC PRESSURES . . . THAT BEAR
HEAVILY ON THE COURT TO WATER DOWN CONSTITUTIONAL GUARANTEES," TERRY V.
OHIO, SUPRA, AT 39 (DOUGLAS, J., DISSENTING), AND THAT THOSE SAME
PRESSURES MAY LEAD TO LATER EXPANSION OF THE EXCEPTIONS BEYOND THE
NARROW CONFINES OF THE CASES IN WHICH THEY ARE ESTABLISHED, ADAMS V.
WILLIAMS, 407 U.S. 143, 161 - 162 (1972) (MARSHALL, J., DISSENTING). 
BUT I CANNOT SAY THAT, IN THE PRECISE CIRCUMSTANCES OF THIS CASE, THE
POLICE VIOLATED THE FOURTH AMENDMENT IN DETAINING MURPHY FOR THE
LIMITED PURPOSE OF SCRAPING HIS FINGERNAILS.  I EMPHASIZE, AS DOES THE
OPINION OF THE COURT, THAT THE SEARCH CONDUCTED INCIDENT TO THIS
DETENTION WAS EXTREMELY NARROW IN SCOPE, AND THAT ITS SCOPE WAS TIED
CLOSELY TO THE REASONS JUSTIFYING THE DETENTION.  ON THIS
UNDERSTANDING, I JOIN THE OPINION OF THE COURT. 

/1/  THUS THIS CASE DOES NOT REQUIRE US TO DETERMINE WHETHER THE
POLICE WERE REQUIRED TO OBTAIN A WARRANT FOR MURPHY'S ARREST AT THE
RELEVANT TIME.  CF. JONES V. UNITED STATES, 357 U.S. 493, 499 - 500
(1958); COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 477 - 481 (1971). 

/2/  THE COURT OF APPEALS ASSUMED THAT THERE WAS PROBABLE CAUSE TO
ARREST, AND I PROCEED ON THAT ASSUMPTION.  I AGREE WITH MR. JUSTICE
WHITE THAT THE QUESTION OF PROBABLE CAUSE TO ARREST IS OPEN ON REMAND. 

/3/  MR. JUSTICE DOUGLAS SUGGESTS THAT THE TAKING OF FINGERNAIL
SCRAPINGS MIGHT VIOLATE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF
INCRIMINATION.  IN MY VIEW, HOWEVER, THAT PRIVILEGE IS CONFINED TO
SITUATIONS IN WHICH THE EVIDENCE COULD BE SECURED BY THE STATE ONLY
WITH THE DEFENDANT'S "AFFIRMATIVE COOPERATION," UNITED STATES V.
DIONISIO, 410 U.S. 1, 31 (1973) (MARSHALL, J., DISSENTING). 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE JOINS,
CONCURRING. 

THE COURT TODAY PERMITS A SEARCH FOR EVIDENCE WITHOUT AN ARREST BUT
UNDER CIRCUMSTANCES WHERE PROBABLE CAUSE FOR AN ARREST EXISTED, WHERE
THE OFFICERS HAD REASONABLE CAUSE TO BELIEVE THAT THE EVIDENCE WAS ON
RESPONDENT'S PERSON, AND WHERE THAT EVIDENCE WAS HIGHLY DESTRUCTIBLE. 
THE COURT, HOWEVER, RESTRICTS THE PERMISSIBLE QUEST TO "THE VERY
LIMITED SEARCH NECESSARY TO PERSERVE THE HIGHLY EVANESCENT EVIDENCE
THEY FOUND UNDER (RESPONDENT'S) FINGERNAILS." 

WHILE I JOIN THE COURT'S OPINION, I DO SO WITH THE UNDERSTANDING
THAT WHAT THE COURT SAYS HERE APPLIES ONLY WHERE NO ARREST HAS BEEN
MADE.  FAR DIFFERENT FACTORS, IN MY VIEW, GOVERN THE PERMISSIBLE SCOPE
OF A SEARCH INCIDENT TO A LAWFUL ARREST. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, CONCURRING. 

IN THIS CASE THE DISTRICT COURT AND THE COURT OF APPEALS ENTERTAINED
A HABEAS CORPUS ATTACK UPON A STATE COURT CONVICTION ON THE GROUND THAT
THE EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT HAD BEEN
WRONGLY ADMITTED AT THE STATE TRIAL.  FOR THE REASONS SET FORTH IN MY
CONCURRING OPINION IN SCHNECKLOTH V. BUSTAMONTE, ANTE, P. 250, I THINK
A CLAIM SUCH AS THIS IS PROPERLY AVAILABLE IN FEDERAL HABEAS CORPUS
ONLY TO THE EXTENT OT ASCERTAINING WHETHER THE PRISONER WAS AFFORDED A
FAIR OPPORTUNITY TO RAISE AND HAVE ADJUDICATED THE QUESTION IN STATE
COURTS.  THE COURT TODAY, HOWEVER, REACHES THE MERITS OF THE
RESPONDENT'S FOURTH AMENDMENT CLAIM, AND ON THE MERITS I JOIN THE
COURT'S OPINION. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I AGREE WITH THE COURT THAT EXIGENT CIRCUMSTANCES EXISTED MAKING IT
LIKELY THAT THE FINGERNAIL SCRAPINGS OF SUSPECT MURPHY MIGHT VANISH IF
HE WERE FREE TO MOVE ABOUT.  THE POLICE WOULD THEREFORE HAVE BEEN
JUSTIFIED IN DETAINING HIM WHILE A SEARCH WARRANT WAS SOUGHT FROM A
MAGISTRATE.  NONE WAS SOUGHT AND THE COURT NOW HOLDS THERE WAS PROBABLE
CAUSE TO SEARCH OR ARREST, MAKING A WARRANT UNNECESSARY. 

WHETHER THERE WAS OR WAS NOT PROBABLE CAUSE IS DIFFICULT TO
DETERMINE ON THIS RECORD.  IT IS A QUESTION THAT THE COURT OF APPEALS
NEVER REACHED.  WE SHOULD THEREFORE REMAND TO IT FOR A DETERMINATION OF
THAT QUESTION. 

THE QUESTION IS CLOUDED IN MY MIND BECAUSE THE POLICE DID NOT ARREST
MURPHY UNTIL A MONTH LATER.  IT IS A CASE NOT COVERED BY CHIMEL V.
CALIFORNIA, 395 U.S. 752, ON WHICH THE COURT RELIES, FOR IN CHIMEL AN
ARREST HAD BEEN MADE. 

AS THE COURT STATES, OREGON DEFINES ARREST AS "THE TAKING OF A
PERSON INTO CUSTODY SO THAT HE MAY BE HELD TO ANSWER FOR A CRIME." 
ORE.  REV. STAT. ^ 133.210.  NO SUCH ARREST WAS MADE UNTIL A MONTH
AFTER MURPHY'S FINGERNAILS WERE SCRAPED.  AS WE STATED IN JOHNSON V.
UNITED STATES, 333 U.S. 10, 15 N. 5, "STATE LAW DETERMINES THE VALIDITY
OF ARRESTS WITHOUT WARRANT."  THE CASE IS THEREFORE ON ALL FOURS WITH
DAVIS V. MISSISSIPPI, 394 U.S. 721, WHERE A SUSPECT WAS DETAINED FOR
THE SOLE PURPOSE OF OBTAINING FINGERPRINTS BUT AT THE TIME THE POLICE
WERE NOT DETAINING HIM TO CHARGE HIM WITH THE CRIME.  LIKE THE SEIZURE
IN THIS CASE, DAVIS INVOLVED AN INVESTIGATIVE SEIZURE.  IN DAVIS, AT
727, AS IN TERRY V. OHIO, 392 U.S. 1, 19, THE COURT REJECTED THE VIEW
THAT THE FOURTH AMENDMENT DOES NOT LIMITE POLICE CONDUCT "IF THE
OFFICERS STOP SHORT OF SOMETHING CALLED A 'TECHNICAL ARREST' OR A 'FULL
BLOWN SEARCH.'" 

THE REASON WHY NO ARREST OF MURPHY WAS MADE ON THE DAY HIS
FINGERNAILS WERE SCRAPED CREATES A NAGGING DOUBT THAT THEY DID NOT THEN
HAVE PROBABLE CAUSE TO MAKE AN ARREST AND DID NOT REACH THAT CONCLUSION
UNTIL A MONTH LATER.  WHY WAS MURPHY ALLOWED TO ORAM AT WILL, A FREE
MAN, FOR THE NEXT MONTH?  THE EVOLVING PATTERN OF A CONSPIRACY OFFENSE
MIGHT INDUCE THE POLICE TO TURN A SUSPECT LOOSE IN ORDER TO TAIL HIM
AND SEE WHAT OTHER SUSPECTS COULD BE BROUGHT INTO THEIR NET.  BUT NO
SUCH CIRCUMSTANCES WERE PRESENT HERE. 

WHAT THE DECISION MADE TODAY COMES DOWN TO, I FEAR, IS THAT
"SUSPICION" IS THE BASIS FOR A SEARCH OF THE PERSON WITHOUT A WARRANT. 
YET "PROBABLE CAUSE" IS THE REQUIREMENT OF THE FOURTH AMENDMENT WHICH
IS APPLICABLE TO THE STATES BY REASON OF THE FOURTEENTH AMENDMENT. 
MAPP V. OHIO, 367 U.S. 643.  SUSPICION HAS NEVER BEEN SUFFICIENT FOR A
WARRANTLESS SEARCH, SAVE FOR THE NARROW SITUATION OF SEARCHES INCIDENT
TO AN ARREST AS WAS INVOLVED IN CHIMEL.  THAT EXCEPTION IS DESIGNED
(SEE SCHMERBER V. CALIFORNIA, 384 U.S. 757, 769 - 770) TO PROTECT THE
OFFICER AGSINST ASSAULTS THROUGH WEAPONS WITHIN EASY REACH OF THE
ACCUSED OR TO SAVE EVIDENCE WITHIN THAT NARROW ZONE FROM DESTRUCTION. 
HOWEVER, THIS IS A CASE WHERE A WARRANT MIGHT HAVE BEEN SOUGHT BUT WAS
NOT.  IT IS THEREFORE GOVERNED BY THE RULE THAT THE RIGHTS OF A PERSON
"AGAINST UNLAWFUL SEARCH AND SEIZURE ARE TO BE PROTECTED EGEN IF THE
SAME RESULT MIGHT HAVE BEEN ACHIEVED IN A LAWFUL WAY"  SILVERTHORNE
LUMBER CO. V. UNITED STATES, 351 U.S. 385, 392.  NO WARRANT COULD HAVE
BEEN ISSUED BY THE POLICE, FOR AS WE HELD IN COOLIDGE V. NEW HAMPSHIRE,
403 U.S. 443, 453, A WARRANT MUST BE ISSUED BY "THE NEUTRAL AND
DETACHED MAGISTRATE REQUIRED BY THE CONSTITUTION."  AND SEE MANCUSI V.
DEFORTE, 392 U.S. 364, 371.  AS STATED IN JOHNSON V. UNITED STATES, 333
U.S., AT 14, "WHEN THE RIGHT OF PRIVACY MUST REASONABLY YIELD TO THE
RIGHT OF SEARCH IS AS A RULE, TO BE DECIDED BY A JUDICIAL OFFICER, NOT
BY A POLICEMAN OR GOVERNMENT ENFORCEMENT AGENT."  IN THAT CASE THE
OFFICERS, SMELLING OPIUM, ASKED FOR ENTRANCE, WHICH WAS GIVEN.  ON
ENTRY, DISCOVERING THAT THE ACCUSED WAS THE SOLE OCCUPANT, THE POLICE
ARRESTED HER.  "THUS THE GOVERNMENT IS OBLIGED TO JUSTIFY THE ARREST BY
THE SEARCH AND AT THE SAME TIME TO JUSTIFY THE SEARCH BY THE ARREST. 
THIS WILL NOT DO."  ID., AT 16 - 17. 

IT WILL NOT DO HERE EITHER.  AS BOYD V. UNITED STATES, 116 U.S. 616,
STATED, THE FOURTH AMENDMENT IS CLOSELY RELATED TO THE SELF
INCRIMINATION CLAUSE OF THE FIFTH.  /1/  A WARRANTLESS SEARCH ON
SUSPICION, TODAY SUSTAINED, GIVES THE POLICE EVIDENCE OTHERWISE
PROTECTED BY THE SELF INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT.  IT
WAS IN THAT REGARD THAT THE COURT IN BOYD SAID:  "(THE FOURTH AND FIFTH
AMENDMENTS RUN ALMOST INTO EACH OTHER."  ID., AT 630.  AND THAT COURT
WENT ON TO SAY:  "FOR THE 'UNREASONABLE SEARCHES AND SEIZURES'
CONDEMNED IN THE FOURTH AMENDMENT ARE ALMOST ALWAYS MADE FOR T-E
PURPOSE OF COMPELLING A MAN TO GIVE EVIDENCE AGAINST HIMSELF, WHICH IN
CRIMINAL CASES IS CONDEMNED IN THE FIFTH AMENDMENT; AND COMPELLING A
MAN 'IN A CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF,' WHICH IS
CONDEMNED IN THE FIFTH AMENDMENT, THROWS LIGHT ON THE QUESTION AS TO
WHAT IS AN 'UNREASONABLE SEARCH AND SEIZURE' WITHIN THE MEANING OF THE
FOURTH AMENDMENT.  AND WE HAVE BEEN UNABLE TO PERCEIVE THAT THE SEIZURE
OF A MAN'S PRIVATE BOOKS AND PAPERS TO BE USED IN EVIDENCE AGAINST HIM
IS SUBSTANTIALLY DIFFERENT FROM COMPELLING HIM TO BE A WITNESS AGAINST
HIMSELF.  WE THINK IT IS WITHIN THE CLEAR INTENT AND MEANING OF THOSE
TERMS."  ID., AT 633. 

THE SAME CAN BE SAID OF INCRIMINATING EVIDENCE FOUND UNDER A
SUSPECT'S FINGERNAILS.  SEE ROCHIN V. CALIFORNIA, 342 U.S. 165. 
MOREOVER, THE FOURTH AMENDMENT GUARANTEES THE RIGHT OF THE PEOPLE TO BE
SECURE "IN THEIR PERSONS."  SCRAPING A MAN'S FINGERNAILS IS AN INVASION
OF THAT PRIVACY AND IT IS TOLERABLE, CONSTITUTIONALLY SPEAKING, ONLY IF
THERE IS A WARRANT FOR A SEARCH OF SEIZURE ISSUED BY A MAGISTRATE ON A
SHOWING OF "PROBABLE CAUSE" THAT THE SUSPECT HAD COMMITTED THE CRIME. 
THERE WAS TIME TO GET A WARRANT; MURPHY COULD HAVE BEEN DETAINED WHILE
ONE WAS SOUGHT; AND THAT DETENTION WOULD HAVE PRESERVED THE PERISHABLE
EVIDENCE THE POLICE SOUGHT.  A SUSPECT ON THE LOOSE COULD GET RID OF
IT; BUT A SUSPECT CLOSELY DETAINED UNTIL A WARRANT IS OBTAINED PLAINLY
COULD NOT. 

OUR APPROVAL OF THE SHORTCUT TAKEN TO AVOID THE FOURTH AND FIFTH
AMENDMENTS MAY BE TYPICAL OF THIS AGE.  EROSIONS OF CONSTITUTIONAL
GUARANTEES USUALLY START SLOWLY, NOT IN DRAMATIC ONSETS.  AS STATED IN
BOYD "ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET THEIR FIRST
FOODING . . . BY SILENT APPROACHES AND SLIGHT DEVIATIONS FROM LEGAL
MODES OF PROCEDURE."  116 U.S., AT 635. 

THE ISSUE OF PROBABLE CAUSE SHOULD BE CONSIDERED BY THE COURT OF
APPEALS.  ON THE RECORD BEFORE US AND THE ARGUMENTS BASED ON IT I
CANNOT SAY THERE WAS 'PROBABLE CAUSE" FOR AN ARREST AND FOR A SEARCH,
SINCE THE ARREST CAME AFTER A MONTH'S DELAY.  THE ONLY WEIGHT WE CAN
PUT IN THE SCALES TO TURN SUSPICION INTO PROBABLE CAUSE IS MURPHY'S
CONVICTION BY A JURY BASED ON THE ILLEGALLY OBTAINED EVIDENCE.  THAT IS
BUT A SIMPLE WAY OF MAKING THE END JUSTIFY THE MEANS--A PRINCIPLE
WHOLLY AT WAR WITH OUR CONSTITUTIONALLY ENSHRINED ADVERSARY SYSTEM. 

/1/  MY BROTHER MARSHALL SAYS THAT THIS PRIVILEGE IS CONFINED TO
CASES WHERE THE EVIDENCE CAN BE OBTAINED ONLY WITH THE DEFENDANT'S
COOPERATION.  BUT THAT EXTENDS EVEN THE BOUNDARIES SET BY SCHMERBER V.
CALIFORNIA, INVOLVING FORCED GIVING OF BLOOD, 384 U.S. 757, 761, WITH
WHICH MY BROTHER MARSHALL DISAGREES.  UNITED STATES V. DIONISIO, 410
U.S. 1. 

MR. JUSTICE BRENNAN, DISSENTING IN PART. 

WITHOUT EFFECTING AN ARREST, AND WITHOUT FIRST SEEKING TO OBTAIN A
SEARCH WARRANT FROM A MAGISTRATE, THE POLICE DECIDED TO SCRAPE
RESPONDENT'S FINGERNAILS FOR POTENTIALLY DESTRUCTIBLE EVIDENCE.  IN
UPHOLDING THIS SEARCH, THE COURT ENGRAFTS ANOTHER, ALBEIT LIMITED,
EXCEPTION ON THE WARRANT REQUIREMENT.  BEFORE WE TAKE THE SERIOUS STEP
OF LEGITIMATING EVEN LIMITED SEARCHES MERELY UPON PROBABLE CAUSE-
WITHOUT A WARRANT OR AS INCIDENT TO AN ARREST--WE OUGHT FIRST BE
CERTAIN THAT SUCH PROBABLE CAUSE IN FACT EXISTED.  HERE, AS MY BROTHER
DOUGLAS CONVINCINGLY DEMONSTRATES "(WHETHER THERE WAS OR WAS NOT
PROBABLE CAUSE IS DIFFICULT TO DETERMINE ON THIS RECORD."  ANTE, AT
301.  AND, SINCE THE COURT OF APPEALS DID NOT CONSIDER THAT QUESTION,
THE PROPER COURSE WOULD BE TO REMAND TO THAT COURT SO THAT IT MIGHT
DECIDE IN THE FIRST INSTANCE WHETHER THERE WAS PROBABLE CAUSE TO ARREST
OR SEARCH.  THERE IS SIMPLY NO NEED FOR THIS COURT TO DECIDE, UPON A
DISPUTED RECORD AND AT THIS STAGE OF THE LITIGATION, WHETHER THE
INSTANT SEARCH WOULD BE PERMISSIBLE IF PROBABLE CAUSE EXISTED. 

THOMAS H. DENNEY, ASSISTANT ATTORNEY GENERAL OF OREGON, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE LEE JOHNSON, ATTORNEY
GENERAL, AND JOHN W. OSBORN, SOLICITOR GENERAL. 

HOWARD R. LONERGAN ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT.  /1/ 

/1/ ALAN S. GANZ, FRANK CARRINGTON, RONALD E. SHERK, AND FRED E.
INBAU FILED A BRIEF FOR AMERICANS FOR EFFECTIVE LAW ENFORCEMENT, INC.,
ET AL. AS AMICI CURIAE URGING REVERSAL. 

MELVIN L. WULF, BURT NEUBORNE, AND JOEL M. GORA FILED A BRIEF FOR
THE AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING AFFIRMANCE. 

..END :









DOE ET AL. V. MCMILLAN ET AL., 412 U.S. 306 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT 

     NO. 71 - 6356.  ARGUED DECEMBER 13, 1972 -- DECIDED MAY 29,

1973; 148 U.S. APP. D. C. 280, 459 F.2D 1304, REVERSED IN PART,

  AFFIRMED IN PART, AND REMANDED. 


    PETITIONERS, PARENTS OF DISTRICT OF COLUMBIA (D.C.)  SCHOOL

  CHILDREN, BROUGHT THIS ACTION SEEKING DAMAGES AND DECLARATORY AND

  INJUNCTIVE RELIEF FOR INVASION OF PRIVACY THAT THEY CLAIMED

  RESULTED FROM THE DISSEMINATION OF A CONGRESSIONAL REPORT ON THE

  D. C. SCHOOL SYSTEM THAT INCLUDED IDENTIFICATION OF STUDENTS IN

  DEROGATORY CONTEXTS.  THE NAMED DEFENDANTS INCLUDED MEMBERS OF A

  HOUSE COMMITTEE, COMMITTEE EMPLOYEES, A COMMITTEE INVESTIGATOR,

  AND A CONSULTANT; THE PUBLIC PRINTER AND THE SUPERINTENDENT OF

  DOCUMENTS; AND OFFICIALS AND EMPLOYEES CONNECTED WITH THE SCHOOL

  SYSTEM.  THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S

  DISMISSAL OF THE COMPLAINT ON THE GROUNDS THAT THE FIRST TWO

  CATEGORIES OF DEFENDANTS WERE IMMUNE BY REASON OF THE SPEECH OR

  DEBATE CLAUSE, AND THAT THE D. C. OFFICIALS AND THE LEGISLATIVE

  EMPLOYEES WERE PROTECTED BY THE OFFICIAL IMMUNITY DOCTRINE

  RECOGNIZED IN BARR V. MATTEO, 360 U.S. 564.  HELD: 

     1.  THE CONGRESSIONAL COMMITTEE MEMBERS, MEMBERS OF THEIR

  STAFF, THE CONSULTANT, AND THE INVESTIGATOR ARE ABSOLUTELY IMMUNE

  UNDER THE SPEECH OR DEBATE CLAUSE INSOFAR AS THEY ENGAGED IN THE

  LEGISLATIVE ACTS OF COMPILING THE REPORT, REFERRING IT TO THE

  HOUSE, OR VOTING FOR ITS PUBLICATION.  PP. 311 - 313. 

    2.  THE CLAUSE DOES NOT AFFORD ABSOLUTE IMMUNITY FROM PRIVATE

  SUIT TO PERSONS WHO, WITH AUTHORIZATION FROM CONGRESS, PERFORM

  THE FUNCTION, WHICH IS NOT PART OF THE LEGISLATIVE PROCESS, OF

  PUBLICLY DISTRIBUTING MATERIALS THAT ALLEGEDLY INFRINGE UPON THE

  RIGHTS OF INDIVIDUALS.  THE COURT OF APPEALS, THEREFORE, ERRED IN

  HOLDING THAT RESPONDENTS WHO (EXCEPT FOR THE COMMITTEE MEMBERS

  AND PERSONNEL) WERE CHARGED WITH SUCH PUBLIC DISTRIBUTION WERE

  PROTECTED BY THE CLAUSE.  PP. 313 - 318. 

     3.  THE PUBLIC PRINTER AND THE SUPERINTENDENT OF DOCUMENTS ARE

  PROTECTED BY THE DOCTRINE OF OFFICIAL IMMUNITY ENUNCIATED IN BARR

V. MATTEO, SUPRA, FOR PUBLISHING AND DISTRIBUTING THE REPORT ONLY

  TO THE EXTENT THAT THEY SERVED LEGITIMATE LEGISLATIVE FUNCTIONS

  IN DOING SO, AND THE COURT OF APPEALS ERRED IN HOLDING THAT THEIR

  IMMUNITY EXTENDED BEYOND THAT LIMIT.  PP. 318 - 324. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, MARSHALL, AND POWELL, JJ., JOINTED.  DOUGLAS, J., FILED A
CONCURRING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ., JOINTED, POST,
P. 325.  BURGER, C. J., FILED AN OPINION CONCURRING IN PART AND
DISSENTING IN PART, POST, P. 331.  BLACKMUN, J., FILED AN OPINION
CONCURRING IN PART AND DISSENTING IN PART, IN WHICH BURGER, C. J.,
JOINED, POST, P. 332.  REHNQUIST, J., FILED AN OPINION CONCURRING IN
PART AND DISSENTING IN PART, IN WHICH BURGER, C. J., AND BLACKMUN, J.,
JOINED, AND IN PART I OF WHICH STEWART, J., JOINED, POST, P. 338. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

[[HC307'(ORIGINAL DOCUMENT PAGE 307)' 

THIS CASE CONCERNS THE SCOPE OF CONGRESSIONAL IMMUNITY UNDER THE
SPEECH OR DEBATE CLAUSE OF THE UNITED STATES CONSTITUTION, ART. I, ^ 6,
CL. 1, AS WELL AS THE REACH OF OFFICIAL IMMUNITY IN THE LEGISLATIVE
CONTEXT.  SEE BARR V. MATTEO, 360 U.S. 564 (1959); TENNEY V. BRANDHOVE,
341 U.S. 367 (1951). 

BY RESOLUTION ADOPTED FEBRUARY 5, 1969, H. RES. 76, 91ST CONG., 1ST
SESS., 115 CONG. REC. 2784, THE HOUSE OF REPRESENTATIVE AUTHORIZED THE
COMMITTEE ON THE DISTRICT OF COLUMBIA OR ITS SUBCOMMITTEE "TO CONDUCT A
FULL AND COMPLETE INVESTIGATION AND STUDY OF . . . THE ORGANIZATION,
MANAGEMENT, OPERATION, AND ADMINISTRATION" OF ANY DEPARTMENT OR AGENCY
OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA OR OF ANY INDEPENDENT
AGENCY OR INSTRUMENTALITY OF GOVERNMENT OPERATING SOLELY WITHIN THE
DISTRICT OF COLUMBIA. 

[[HC308'(ORIGINAL DOCUMENT PAGE 308)'  THE COMMITTEE WAS GIVEN
SUBPOENA POWER AND WAS DIRECTED TO "REPORT TO THE HOUSE AS SOON AS
PRACTICABLE . . . THE RESULTS OF ITS INVESTIGATION AND STUDY TOGETHER
WITH SUCH RECOMMENDATIONS AS IT DEEMS ADVISABLE."  ON DECEMBER 8, 1970,
A SPECIAL SELECT SUBCOMMITTEE OF THE COMMITTEE ON THE DISTRICT OF
COLUMBIA SUBMITTED TO THE SPEAKER OF THE HOUSE A REPORT, H. R. REP. NO.
91 - 1681 (1970), REPRESENTED TO BE A SUMMARY OF THE SUBCOMMITTEE'S
INVESTIGATION AND HEARINGS DEVOTED TO THE PUBLIC SCHOOL SYSTEM OF THE
DISTRICT OF COLUMBIA.  ON THE SAME DAY, THE REPORT WAS REFERRED TO THE
COMMITTEE OF THE WHOLE HOUSE ON THE STATE OF THE UNION AND WAS ORDERED
PRINTED.  116 CONG. REC. 40311 (1970).  THEREAFTER, THE REPORT WAS
PRINTED AND DISTRIBUTED BY THE GOVERNMENT PRINTING OFFICE PURSUANT TO
44 U.S.C. ^^ 501 AND 701. 

THE 450 - PAGE REPORT INCLUDED AMONG ITS SUPPORTING DATA SOME 45
PAGES THAT ARE THE GRAVAMEN OF PETITIONERS' SUIT.  INCLUDED IN THE
PERTINENT PAGES WERE COPIES OF ABSENCE SHEETS, LISTS OF ABSENTEES,
COPIES OF TEST PAPERS, AND DOCUMENTS RELATING TO DISCIPLINARY PROBLEMS
OF CERTAIN SPECIFICALLY NAMED STUDENTS.  /1/  THE REPORT STATED THAT
THESE MATERIALS WERE INCLUDED TO "GIVE A REALISTIC VIEW" OF A TROUBLED
SCHOOL AND "THE LACK OF ADMINISTRATIVE EFFORTS TO RECTIFY THE
MULTITUDINOUS PROBLEMS THERE,"  TO SHOW THE LEVEL OF READING ABILITY OF
SEVENTH GRADERS WHO WERE GIVEN A FIFTH-GRADE HISTORY TEST, AND TO
ILLUSTRATE SUSPENSION AND DISCIPLINARY PROBLEMS.  /2/ 

[[HC309'(ORIGINAL DOCUMENT PAGE 309)' 

ON JANUARY 8, 1971, PETITONERS, UNDER PSEUDONYMS, BROUGHT AN ACTION
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON
BEHALF OF THEMSELVES, THEIR CHILDREN, AND ALL OTHER CHILDREN AND
PARENTS SIMILARLY SITUATED.  THE NAMED DEFENDANTS WERE (1) THE CHAIRMAN
AND MEMBERS OF THE HOUSE COMMITTEE ON THE DISTRICT OF COLUMBIA; (2) THE
CLERK; STAFF DIRECTOR, AND COUNSEL OF THE COMMITTEE; (3) A CONSULTANT
AND AN INVESTIGATOR FOR THE COMMITTEE; (4) THE SUPERINTENDENT OF
DOCUMENTS AND THE PUBLIC PRINTER; (5) THE PRESIDENT AND MEMBERS OF THE
BOARD OF EDUCATION OF THE DISTRICT OF COLUMBIA; (6) THE SUPERINTENDENT
OF PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA; (7) THE PRINCIPAL OF
JEFFERSON JUNIOR HIGH SCHOOL AND ONE OF THE TEACHERS AT THAT SCHOOL;
AND (8) THE UNITED STATES OF AMERCIA. 

PETITIONERS ALLEGED THAT, BY DISCLOSING, DISSEMINATING, AND
PUBLISHING THE INFORMATION CONTAINED IN THE REPORT, THE DEFENDANTS HAD
VIOLATED THE PETITIONERS' AND THEIR CHILDREN'S STATUTORY,
CONSITUTIONAL, AND COMMON-LAW RIGHTS TO PRIVACY AND THAT SUCH
PUBLICATION HAD CAUSED AND WOULD CAUSE GRAVE DAMAGE TO THE CHILDREN'S
MENTAL AND PHYSICAL HEALTH AND TO THEIR REPUTATIONS, GOOD NAMES, AND
FUTURE CAREERS.  PETITIONERS ALSO ALLEGED VARIOUS VIOLATIONS OF LOCAL
LAW.  PETITIONERS FURTHER CHARGED THAT "UNLESS RESTRAINED, DEFENDANTS
WILL CONTINUE TO DISTRIBUTE AND PUBLISH INFORMATION CONCERNING
PLAINTIFFS, THEIR CHILDREN AND OTHER STUDENTS."  THE COMPLAINT PRAYED
FOR AN ORDER ENJOINING THE DEFENDANTS FROM FURTHER PUBLICATON,
DISSEMINATION, AND DISTRIBUTION OF ANY REPORT CONTAINING THE
OBJECTIONABLE MATERIAL AND FOR AN ORDER RECALLING THE REPORTS TO THE
EXTENT PRACTICABLE AND DELETING THE OBJECTIONABLE MATERIAL FROM THE
REPORTS ALREADY IN CIRCULATION. 

[[HC310'(ORIGINAL DOCUMENT PAGE 310)'  PETITIONERS ALSO ASKED FOR
COMPENSATORY AND PUNITIVE DAMAGES.  /3/ 

THE DISTRICT COURT, AFTER A HEARING ON MOTIONS FOR A TEMPORARY
RESTRAINING ORDER AND FOR AN ORDER AGAINST FURTHER DISTRIBUTION OF THE
REPORT, DISMISSED THE ACTION AGAINST THE INDIVIDUAL DEFENDANTS ON THE
GROUND THAT THE CONDUCT COMPLAINED OF WAS ABSOLUTELY PRIVILEGED.  /4/
A DIVIDED PANEL OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT AFFIRMED.  WITHOUT DETERMINING WHETHER THE
COMPLAINT STATED A CAUSE OF ACTION UNDER THE CONSITUTION OR ANY
APPLICABLE LAW, THE MAJORITY HELD THAT THE MEMBERS OF CONGRESS, THE
COMMITTEE STAFF EMPLOYEES, AND THE PUBLIC PRINTER AND SUPERINTENDENT OF
DOCUMENTS WERE IMMUNE FROM THE LIABILITY ASSERTED AGAINST THEM BECAUSE
OF THE SPEECH OR DEBATE CLAUSE AND THAT THE OFFICIAL IMMUNITY DOCTRINE
RECOGNIZED IN BARR V. MATTEO, SUPRA, BARRED ANY LIABILITY ON THE PART
OF THE DISTRICT OF COLUMBIA OFFICIALS AS WELL AS THE LEGISLATIVE
EMPLOYEES.  /5/  WE GRANTED CERTIORARI, 408 U.S. 922. 

        I 

[[HC311'(ORIGINAL DOCUMENT PAGE 311)' 

TO "PREVENT INTIMIDATION OF LEGISLATORS BY THE EXECUTIVE AND
ACCOUNTABILITY BEFORE A POSSIBLY HOSTILE JUDICIARY," GRAVEL V. UNITED
STATES, 408 U.S. 606, 617 (1972), ART. I, ^ 6, CL. 1, OF THE
CONSTITUTION PROVIDES THAT "FOR ANY SPEECH OR DEBATE IN EITHER HOUSE,
THEY (MEMBERS OF CONGRESS) SHALL NOT BE QUESTIONED IN ANY OTHER
PLACE." 

     "THE SPEECH OR DEBATE CLAUSE WAS DESIGNED TO ASSURE A CO-EQUAL

  BRANCH OF THE GOVERNMENT WIDE FREEDOM OF SPEECH, DEBATE, AND

  DELIBERATION WITHOUT INTIMIDATION OR THREATS FROM THE EXECUTIVE

  BRANCH.  IT THUS PROTECTS MEMBERS AGAINST PROSECUTIONS THAT

  DIRECTLY IMPINGE UPON OR THREATEN THE LEGISLATIVE PROCESS."  ID.,

  AT 616.  /6/

THE SPEECH OR DEBATE CLAUSE HAS BEEN READ "BROADLY TO EFFECTUATE ITS
PURPOSES,"  UNITED STATES V. JOHNSON, 383 U.S. 169, 180 (1966); GRAVEL
V. UNITED STATES, SUPRA, AT 624, AND INCLUDES WITHIN ITS PROTECTIONS
ANYTHING "GENERALLY DONE IN A SESSION OF THE HOUSE BY ONE OF ITS
MEMBERS IN RELATION TO THE BUSINESS BEFORE IT."  KILBOURN V. THOMPSON,
103 U.S. 168, 204 (1881); UNITED STATES V. JOHNSON, SUPRA, AT 179;
GRAVEL V. UNITED STATES, SUPRA, AT 624; POWELL V. MCCORMACK, 395 U.S.
486, 502 (1969); UNITED STATES V. BREWSTER, 408 U.S. 501, 509, 512 -
513 (1972).  THUS "VOTING BY MEMBERS AND COMMITTEE REPORTS ARE
PROTECTED"  AND "A MEMBER'S CONDUCT AT LEGISLATIVE COMMITTEE HEARINGS,
ALTHOUGH SUBJECT TO JUDICIAL REVIEW IN VARIOUS CIRCUMSTANCES, AS IS
LEGISLATION ITSELF, MAY NOT BE MADE THE BASIS FOR A CIVIL OR CRIMINAL
JUDGMENT AGAINST A MEMBER BECAUSE THAT CONDUCT IS WITHIN THE 'SPHERE OF
LEGITIMATE LEGISLATIVE ACTIVITY.'" 

[[HC312'(ORIGINAL DOCUMENT PAGE 312)' GRAVEL V. UNITED STATES,
SUPRA, AT 624. 

WITHOUT BELABORING THE MATTER FURTHER, IT IS PLAIN TO US THAT THE
COMPLAINT IN THIS CASE WAS BARRED BY THE SPEECH OR DEBATE CLAUSE
INSOFAR AS IT SOUGHT RELIEF FROM THE CONGRESSMEN-COMMITTEE MEMBERS,
FROM THE COMMITTEE STAFF, FROM THE CONSULTANT, OR FROM THE
INVESTIGATOR, FOR INTRODUCING MATERIAL AT COMMITTEE HEARINGS THAT
IDENTIFIED PARTICULAR INDIVIDUALS, FOR REFERRING THE REPORT THAT
INCLUDED THE MATERIAL TO THE SPEAKER OF THE HOUSE, AND FOR VOTING FOR
PUBLICATION OF THE REPORT.  DOUBTLESS, ALSO, A PUBLISHED REPORT MAY,
WITHOUT LOSING SPEECH OR DEBATE CLAUSE PROTECTION, BE DISTRIBUTED TO
AND USED FOR LEGISLATIVE PURPOSES BY MEMEBERS OF CONGRESS,
CONGRESSIONAL COMMITTEES, AND INSTITUTIONAL OR INDIVIDUAL LEGISLATIVE
FUNCTIONAIRES.  AT LEAST IN THESE RESPECTS, THE ACTIONS UPON WHICH
PETITIONERS SOUGHT TO PREDICATE LIABILITY WERE "LEGISLATIVE ACTS,"
GRAVEL V. UNITED STATES, SUPRA, AT 618, AND, AS SUCH, WERE IMMUNE FROM
SUIT.  /7/ 

PETITIONERS ARGUE THAT INCLUDING IN THE RECORD OF THE HEARINGS AND
IN THE REPORT ITSELF MATERIALS DESCRIBING PARTICULAR CONDUCT ON THE
PART OF IDENTIFIED CHILDREN WAS ACTIONABLE BECAUSE UNNECESSARY AND
IRRELEVANT TO ANY LEGISLATIVE PURPOSE.  CASES IN THIS COURT, HOWEVER,
FROM KILBOURN TO GRAVEL PRETERMIT THE IMPOSITION OF LIABILITY ON ANY
SUCH THEORY.  CONGRESSMEN AND THEIR AIDES ARE IMMUNE FROM LIABILITY FOR
THEIR ACTIONS WITHIN THE "LEGISLATIVE SPHERE," GRAVEL V. UNITED STATES,
SUPRA, AT 624 - 625, EVEN THOUGH THEIR CONDUCT, IF PERFORMED IN OTHER
THAN LEGISLATIVE CONTEXTS, WOULD IN ITSELF BE UNCONSTITUTIONAL OR
OTHERWISE CONTRARY TO CRIMINAL OR CIVIL STATUTES. 

[[HC313'(ORIGINAL DOCUMENT PAGE 313)'  ALTHOUGH WE MIGHT DISAGREE
WITH THE COMMITTEE AS TO WHETHER IT WAS NECESSARY, OR EVEN REMOTELY
USEFUL, TO INCLUDE THE NAMES OF INDIVIDUAL CHILDREN IN THE EVIDENCE
SUBMITTED TO THE COMMITTEE AND IN THE COMMITTEE REPORT, WE HAVE NO
AUTHORITY TO OVERSEE THE JUDGMENT OF THE COMMITTEE IN THIS RESPECT OR
TO IMPOSE LIABILITY ON ITS MEMBERS IF WE DISAGREE WITH THEIR
LEGISLATIVE JUDGMENT.  THE ACTS OF AUTHORIZING AN INVESTIGATION
PURSUANT TO WHICH THE SUBJECT MATERIALS WERE GATHERED, HOLDING HEARINGS
WHERE THE MATERIALS WERE PRESENTED, PREPARING A REPORT WHERE THEY WERE
REPRODUCED, AND AUTHORIZING THE PUBLICATION AND DISTRIBUTION OF THAT
REPORT WERE ALL "INTEGRAL PARTS) OF THE DELIBERATIVE AND COMMUNICATIVE
PROCESSES BY WHICH MEMBERS PARTICIPATE IN COMMITTEE AND HOUSE
PROCEEDINGS WITH RESPECT TO THE CONSIDERATION AND PASSAGE OR REJECTION
OF PROPOSED LEGISLATION OR WITH RESPECT TO OTHER MATTERS WHICH THE
CONSTITUTION PLACES WITHIN THE JURISDICTION OF EITHER HOUSE."  ID., AT
625.  AS SUCH, THE ACTS WERE PROTECTED BY THE SPEECH OR DEBATE CLAUSE. 

OUR CASES MAKE PERFECTLY APPARENT, HOWEVER, THAT EVERYTHING A MEMBER
OF CONGRESS MAY REGULARLY DO IS NOT A LEGISLATIVE ACT WITHIN THE
PROTECTION OF THE SPEECH OR DEBATE CLAUSE.  "(THE CLAUSE HAS NOT BEEN
EXTENDED BEYOND THE LEGISLATIVE SPHERE," AND "(LEGISLATIVE ACTS ARE NOT
ALL-ENCOMPASSING."  ID., AT 624 - 625.  MEMBERS OF CONGRESS MAY
FREQUENTLY BE IN TOUCH WITH AND SEEK TO INFLUENCE THE EXECUTIVE BRANCH
OF GOVERNMENT, BUT THIS CONDUCT "THOUGH GENERALLY DONE, IS NOT
PROTECTED LEGISLATIVE ACTIVITY."  ID., AT 625; UNITED STATES V.
JOHNSON, SUPRA.  NOR DOES THE SPEECH OR DEBATE CLAUSE PROTECT A PRIVATE
REPUBLICATION OF DOCUMENTS INTRODUCED AND MADE PUBLIC AT A COMMITTEE
HEARING, ALTHOUGH THE HEARING WAS UNQUESTIONABLY PART OF THE
LEGISLATIVE PROCESS. 

[[HC314'(ORIGINAL DOCUMENT PAGE 314)'  GRAVEL V. UNITED STATES,
SUPRA. 

THE PROPER SCOPE OF OUR INQUIRY, THEREFORE, IS WHETHER THE SPEECH OR
DEBATE CLAUSE AFFORDS ABSOLUTE IMMUNITY FROM PRIVATE SUIT TO PERSONS
WHO, WITH AUTHORIZATION FROM CONGRESS, DISTRIBUTE MATERIALS WHICH
ALLEGEDLY INFRINGE UPON THE RIGHTS OF INDIVIDUALS.  THE RESPONDENTS
INSIST THAT SUCH PUBLIC DISTRIBUTIONS ARE PROTECTED, THAT THE CLAUSE
IMMUNIZES NOT ONLY PUBLICATION FOR THE INFORMATION AND USE OF MEMBERS
IN THE PERFORMANCE OF THEIR LEGISLATIVE DUTIES BUT ALSO MUST BE HELD TO
PROTECT "PUBLICATIONS TO THE PUBLIC THROUGH THE FACILITIES OF
CONGRESS."  PUBLIC DISSEMINATION, IT IS ARGUED, WILL SERVE "THE
IMPORTANT LEGISLATIVE FUNCTION OF INFORMING THE PUBLIC CONCERNING
MATTERS PENDING BEFORE CONGRESS . . ."  BRIEF FOR LEGISLATIVE
RESPONDENTS 27. 

WE DO NOT DOUBT THE IMPORTANCE OF INFORMING THE PUBLIC ABOUT THE
BUSINESS OF CONGRESS.  HOWEVER, THE QUESTION REMAINS WHETHER THE ACT OF
DOING SO, SIMPLY BECAUSE AUTHORIZED BY CONGRESS, MUST ALWAYS BE
CONSIDERED "AN INTEGRAL PART OF THE DELIBERATIVE AND COMMUNICATIVE
PROCESSES BY WHICH MEMBERS PARTICIPATE IN COMMITTEE AND HOUSE
PROCEEDINGS" WITH RESPECT TO LEGISLATIVE OR OTHER MATTERS BEFORE THE
HOUSE.  GRAVEL V. UNITED STATES, SUPRA, AT 625.  A MEMBER OF CONGRESS
MAY NOT WITH IMPUNITY PUBLISH A LIBEL FROM THE SPEAKER'S STAND IN HIS
HOME DISTRICT, AND CLEARLY THE SPEECH OR DEBATE CLAUSE WOULD NOT
PROTECT SUCH AN ACT EVEN THOUGH THE LIBEL WAS READ FROM AN OFFICIAL
COMMITTEE REPORT.  /8/  THE REASON IS THAT REPUBLISHING A LIBEL UNDER
SUCH CIRCUMSTANCES IS NOT AN ESSENTIAL PART OF THE LEGISLATIVE PROCESS
AND IS NOT PART OF THAT DELIBERATIVE PROCESS "BY WHICH MEMBERS
PARTICIPATE IN COMMITTEE AND HOUSE PROCEEDINGS." 

[[HC315'(ORIGINAL DOCUMENT PAGE 315)'  IBID.  BY THE SAME TOKEN,
OTHERS, SUCH AS THE SUPERINTENDENT OF DOCUMENTS OR THE PUBLIC PRINTER
OR LEGISLATIVE PERSONNEL, WHO PARTICIPATE IN DISTRIBUTION OF ACTIONABLE
MATERIAL BEYOND THE REASONABLE BOUNDS OF THE LEGISLATIVE TASK, ENJOY NO
SPEECH OR DEBATE CLAUSE IMMUNITY. 

MEMBERS OF CONGRESS ARE THEMSELVES IMMUNE FOR ORDERING OR VOTING FOR
A PUBLICATION GOING BEYOND THE REASONABLE REQUIREMENTS OF THE
LEGISLATIVE FUNCTION, KILBOURN V. THOMPSON, SUPRA, BUT THE SPEECH OR
DEBATE CLAUSE NO MORE INSULATES LEGISLATIVE FUNCTIONARIES CARRYING OUT
SUCH NONLEGISLATIVE DIRECTIVES THAN IT PROTECTED THE SERGEANT AT ARMS
IN KILBOURN V. THOMPSON WHEN, AT THE DIRECTION OF THE HOUSE, HE MADE AN
ARREST THAT THE COURTS SUBSEQUENTLY FOUND TO BE "WITHOUT AUTHORITY." 
103 U.S., AT 200.  /9/  SEE ALSO POWELL V. MCCORMACK, 395 U.S., AT 504;
CF. DOMBROWSKI V. EASTLAND, 387 U.S. 82 (1967).  THE CLAUSE DOES NOT
PROTECT "CRIMINAL CONDUCT THREATENING THE SECURITY OF THE PERSON OR
PROPERTY OF OTHERS, WHETHER PERFORMED AT THE DIRECTION OF THE SENATOR
IN PREPARATION FOR OR IN EXECUTION OF A LEGISLATIVE ACT OR DONE WITHOUT
HIS KNOWLEDGE OR DIRECTION."  GRAVEL V. UNITED STATES, SUPRA, AT 622. 
NEITHER, WE THINK, DOES IT IMMUNIZE THOSE WHO PUBLISH AND DISTRIBUTE
OTHERWISE ACTIONABLE MATERIALS BEYOND THE REASONABLE REQUIREMENTS OF
THE LEGISLATIVE FUNCTION.  /10/    [[HC316'(ORIGINAL DOCUMENT PAGE
316)' 

THUS, WE CANNOT ACCEPT THE PROPOSITON THAT IN ORDER TO PERFORM ITS
LEGISLATIVE FUNCTION CONGRESS NOT ONLY MUST AT TIMES CONSIDER AND USE
ACTIONABLE MATERIAL BUT ALSO MUST BE FREE TO DISSEMINATE IT TO THE
PUBLIC AT LARGE, NO MATTER HOW INJURIOUS TO PRIVATE REPUTATION THAT
MATERIAL MIGHT BE.  WE CANNOT BELIEVE THAT THE PURPOSE OF THE CLAUSE --
"TO PREVENT INTIMIDATION OF LEGISLATORS BY THE EXECUTIVE AND
ACCOUNTABILITY BEFORE A POSSIBLY HOSTILE JUDICIARY," GRAVEL V. UNITED
STATES, SUPRA, AT 617; POWELL V. MCCORMACK, SUPRA, AT 502; UNITED
STATES V. JOHNSON, 383 U.S., AT 181 -- WILL SUFFER IN THE SLIGHTEST IF
IT IS HELD THAT THOSE WHO, AT THE DIRECTION OF CONGRESS OR OTHERWISE,
DISTRIBUTE ACTIONABLE MATERIAL TO THE PUBLIC AT LARGE HAVE NO AUTOMATIC
IMMUNITY UNDER THE SPEECH OR DEBATE CLAUSE BUT MUST RESPOND TO PRIVATE
SUITS TO THE EXTENT THAT OTHERS MUST RESPOND IN LIGHT OF THE
CONSITUTION AND APPLICABLE LAWS.  /11/  TO HOLD OTHERWISE WOULD BE IN
INVITE GRATUITOUS INJURY TO CITIZENS FOR LITTLE IF ANY PUBLIC PURPOSE. 

[[HC317'(ORIGINAL DOCUMENT PAGE 317)'  WE ARE UNWILLING TO SANCTION
SUCH A RESULT, AT LEAST ABSENT MORE SUBSTANTIAL EVIDENCE THAT, IN ORDER
TO PERFORM ITS LEGISLATIVE FUNCTION.  CONGRESS MUST NOT ONLY INFORM THE
PUBLIC ABOUT THE FUNDAMENTALS OF ITS BUSINESS BUT ALSO MUST DISTRIBUTE
TO THE PUBLIC GENERALLY MATERIALS OTHERWISE ACTIONABLE UNDER LOCAL
LAW. 

CONTRARY TO THE SUGGESTION OF OUR DISSENTING BRETHREN, WE CANNOT
ACCEPT THE PROPOSITION THAT OUR CONCLUSION, THAT GENERAL, PUBLIC
DISSEMINATION OF MATERIALS OTHERWISE ACTIONABLE UNDER LOCAL LAW IS NOT
PROTECTED BY THE SPEECH OR DEBATE CLAUSE, WILL SERIOUSLY UNDERMINE THE
"INFORMING FUNCTION" OF CONGRESS.  TO THE EXTENT THAT THE COMMITTEE
REPORT IS PRINTED AND INTERNALLY DISTRIBUTED TO MEMBERS OF CONGRESS
UNDER THE PROTECTION OF THE SPEECH OR DEBATE CLAUSE, THE WORK OF
CONGRESS IS IN NO WAY INHIBITED.  MOREOVER, THE INTERNAL DISTRIBUTION
IS "PUBLIC" IN THE SENSE THAT MATERIALS INTERNALLY CIRCULATED, UNLESS
SHELTERED BY SPECIFIC CONGRESSIONAL ORDER, ARE AVAILABLE FOR INSPECTION
BY THE PRESS AND BY THE PUBLIC.  WE ONLY DEAL, IN THE PRESENT CASE,
WITH GENERAL, PUBLIC DISTRIBUTION BEYOND THE HALLS OF CONGRESS AND THE
ESTABLISHMENTS OF ITS FUNCTIONARIES, AND BEYOND THE APPARENT NEEDS OF
THE "DUE FUNCTIONING OF THE (LEGISLATIVE) PROCESS."  UNITED STATES V.
BREWSTER, 408 U.S., AT 516. 

THAT THE SPEECH OR DEBATE CLAUSE HAS FINITE LIMITS IS IMPORTANT FOR
PRESENT PURPOSES.  THE COMPLAINT BEFORE US ALLEGES THAT THE RESPONDENTS
CAUSED THE COMMITTEE REPORT "TO BE DISTRIBUTED TO THE PUBLIC," THAT
"DISTRIBUTION OF THE REPORT CONTINUES TO THE PRESENT," AND THAT,
"UNLESS RESTRAINED, DEFENDANTS WILL CONTINUE TO DISTRIBUTE AND PUBLISH"
DAMAGING INFORMATION ABOUT PETITIONERS AND THEIR CHILDREN.  IT DOES
NOT EXPRESSLY APPEAR FROM THE COMPLAINT, NOR IS IT CONTENDED IN THIS
COURT, THAT EITHER THE MEMBERS OF CONGRESS OR THE COMMITTEE PERSONNEL
DID ANYTHING MORE THAN CONDUCT THE HEARINGS, PREPARE THE REPORT, AND
AUTHORIZE ITS PUBLICATION. 

[[HC318'(ORIGINAL DOCUMENT PAGE 318)'  AS WE HAVE STATED, SUCH ACTS
BY THOSE RESPONDENTS ARE PROTECTED BY THE SPEECH OR DEBATE CLAUSE AND
MAY NOT SERVE AS A PREDICATE FOR A SUIT.  THE COMPLAINT WAS THEREFORE
PROPERLY DISMISSED AS TO THESE RESPONDENTS.  OTHER RESPONDENTS,
HOWEVER, ARE ALLEGED TO HAVE CARRIED OUT A PUBLIC DISTRIBUTION AND TO
BE READY TO CONTINUE SUCH DISSEMINATION. 

IN RESPONSE TO THESE LATTER ALLEGATIONS, THE COURT OF APPEALS, AFTER
RECEIVING SUFFICIENT ASSURANCES FROM THE RESPONDENTS THAT THEY HAD NO
INTENTION OF SEEKING A REPUBLICATION OR CARRYING OUT FURTHER
DISTRIBUTION OF THE REPORT, CONCLUDED THAT THERE WAS NO BASIS FOR
INJUNCTIVE RELIEF.  BUT THIS LEFT THE QUESTION WHETHER ANY PART OF THE
PREVIOUS PUBLICATION AND PUBLIC DISTRIBUTION BY RESPONDENTS OTHER THAN
THE MEMBERS OF CONGRESS AND COMMITTEE PERSONNEL WENT BEYOND THE LIMITS
OF THE LEGISLATIVE IMMUNITY PROVIDED BY THE SPEECH OR DEBATE CLAUSE OF
THE CONSTITUTION.  UNTIL THAT QUESTION WAS RESOLVED, THE COMPLAINT
SHOULD NOT HAVE BEEN DISMISSED ON THRESHOLD IMMUNITY GROUNDS, UNLESS
THE COURT OF APPEALS WAS CORRECT IN RULING THAT THE ACTION AGAINST THE
OTHER RESPONDENTS WAS FORECLOSED BY THE DOCTRINE OF OFFICIAL IMMUNITY,
A QUESTION TO WHICH WE NOW TURN.  /12/

       II 

THE OFFICIAL IMMUNITY DOCTRINE, WHICH "HAS IN LARGE PART BEEN OF
JUDICIAL MAKING," BAR V. MATTEO, 360 U.S., AT 569, CONFERS IMMUNITY ON
GOVERNMENT OFFICIALS OF SUITABLE RANK FOR THE REASON THAT "OFFICIALS OF
GOVERNMENT SHOULD BE FREE TO EXERCISE THEIR DUTIES UNEMBARRASSED BY THE
FEAR OF DAMAGE SUITS IN RESPECT OF ACTS DONE IN THE COURSE OF THOSE
DUTIES -- SUITS WHICH WOULD CONSUME TIME AND ENERGIES WHICH WOULD
OTHERWISE BE DEVOTED TO GOVERNMENTAL SERVICE AND THE THREAT OF WHICH
MIGHT APPRECIABLY INHIBIT THE FEARLESS, VIGOROUS, AND EFFECTIVE
ADMINISTRATION OF POLICIES OF GOVERNMENT." 

[[HC319'(ORIGINAL DOCUMENT PAGE 319)'  ID., AT 571.  /13/  THE
OFFICIAL-IMMUNITY DOCTRINE SEEKS TO RECONCILE TWO IMPORTANT
CONSIDERATIONS -- 

    "(ON THE ONE HAND, THE PROTECTION OF THE INDIVIDUAL CITIZEN

  AGAINST PECUNIARY DAMAGE CAUSED BY OPPRESSIVE OR MALICIOUS ACTION

  ON THE PART OF OFFICIALS OF THE FEDERAL GOVERNMENT; AND ON THE

  OTHER, THE PROTECTION OF THE PUBLIC INTEREST BY SHIELDING

  RESPONSIBLE GOVERNMENTAL OFFICERS AGAINST THE HARASSMENT AND

  INEVITABLE HAZARDS OF VINDICTIVE OR ILL-FOUNDED DAMAGE SUITS

  BROUGHT ON ACCOUNT OF ACTION TAKEN IN THE EXERCISE OF THEIR

  OFFICIAL RESPONSIBILITIES."  ID., AT 565. 

IN THE BARR CASE, THE COURT REAFFIRMED EXISTING IMMUNITY LAW BUT
MADE IT CLEAR THAT THE IMMUNITY CONFERRED MIGHT NOT BE THE SAME FOR ALL
OFFICIALS FOR ALL PURPOSES.  ID., AT 573; SEE ALSO TENNEY V. BRANDHOVE,
341 U.S., AT 378; DOMBROWSKI V. EASTLAND, 387 U.S., AT 85.  JUDGES,
LIKE EXECUTIVE OFFICERS WITH DISCRETIONARY FUNCTIONS, HAVE BEEN HELD
ABSOLUTELY IMMUNE REGARDLESS OF THEIR MOTIVE OR GOOD FAITH.  BARR V
MATTEO, SUPRA, AT 569; PIERSON V. RAY, 386 U.S. 547, 553 - 555 (1967). 
BUT POLICEMEN AND LIKE OFFICIALS APPARENTLY ENJOY A MORE LIMITED
PRIVILEGE.  ID., AT 555 - 558.  ALSO, THE COURT DETERMINED IN BARR THAT
THE SCOPE OF IMMUNITY FROM DEFAMATION SUITS SHOULD BE DETERMINED BY THE
RELATION OF THE PUBLICATION COMPLAINED OF TO THE DUTIES ENTRUSTED TO
THE OFFICER. 

[[HC 320 BARR V. MATTEO, SUPRA, AT 573 - 574; SEE ALSO THE COMPANION
CASE, HOWARD V. LYONS, 360 U.S. 593, 597 - 598 (1959).  THE SCOPE OF
IMMUNITY HAS ALWAYS BEEN TIED TO THE "SCOPE OF . . . AUTHORITY." 
WHEELDIN V. WHEELER, 373 U.S. 647, 651 (1963).  IN THE LEGISLATIVE
CONTEXT, FOR INSTANCE, "(THIS COURT HAS NOT HESITATED TO SUSTAIN THE
RIGHTS OF PRIVATE INDIVIDUALS WHEN IT FOUND CONGRESS WAS ACTING OUTSIDE
ITS LEGISLATIVE ROLE."  TENNEY V. BRANDHOVE, SUPRA, AT 377.  THUS, WE
HAVE RECOGNIZED "THE IMMUNITY OF LEGISLATORS FOR ACTS WITHIN THE
LEGISLATIVE ROLE,"  PERSON V. RAY, SUPRA, AT 554, BUT HAVE CAREFULLY
CONFINED THAT IMMUNITY TO PROTECT ONLY ACTS WITHIN "THE SPHERE OF
LEGITIMATE LEGISLATIVE ACTIVITY."  TENNEY V. BRANDHOVE, SUPRA, AT 376;
CF. POWELL V. MCCORMACK, SUPRA. 

BECAUSE THE COURT HAS NOT FASHIONED A FIXED, INVARIABLE RULE OF
IMMUNITY BUT HAS ADVISED A DISCERNING INQUIRY INTO WHETHER THE
CONTRIBUTIONS OF IMMUNITY TO EFFECTIVE GOVERNMENT IN PARTICULAR
CONTEXTS OUTWEIGH THE PERHAPS RECURRING HARM TO INDIVIDUAL CITIZENS,
THERE IS NO READYMADE ANSWER AS TO WHETHER THE REMAINING FEDERAL
RESPONDENTS -- THE PUBLIC PRINTER AND THE SUPERINTENDENT OF DOCUMENTS -
SHOULD BE ACCORDED ABSOLUTE IMMUNITY IN THIS CASE.  OF COURSE, TO THE
EXTENT THAT THEY SERVE LEGISLATIVE FUNCTIONS, THE PERFORMANCE OF WHICH
WOULD BE IMMUNE CONDUCT IF DONE BY CONGRESSMEN, THESE OFFICIALS ENJOY
THE PROTECTION OF THE SPEECH OR DEBATE CLAUSE.  OUR INQUIRY HERE,
HOWEVER, IS WHETHER, IF THEY PARTICIPATE IN PUBLICATION AND
DISTRIBUTION BEYOND THE LEGISLATIVE SPHERE, AND THUS BEYOND THE
PROTECTION OF THE SPEECH OR DEBATE CLAUSE, THEY ARE NEVERTHELESS
PROTECTED BY THE DOCTRINE OF OFFICIAL IMMUNITY.  OUR STARTING POINT IS
AT LEAST A MINIMUM FAMILIARITY WITH THEIR FUNCTIONS AND DUTIES. 

THE STATUTES OF THE UNITED STATES CREATED THE OFFICE OF PUBLIC
PRINTER TO MANAGE AND SUPERVISE THE GOVERNMENT PRINTING OFFICE, WHICH,
WITH CERTAIN EXCEPTIONS, IS THE AUTHORIZED PRINTER FOR THE VARIOUS
BRANCHES OF THE FEDERAL GOVERNMENT. 

[[HC321'(ORIGINAL DOCUMENT PAGE 321)'  44 U.S.C. ^ 301.  "PRINTING
OR BINDING MAY BE DONE AT THE GOVERNMENT PRINTING OFFICE ONLY WHEN
AUTHORIZED BY LAW."  ^ 501.  THE PUBLIC PRINTER IS AUTHORIZED TO DO
PRINTING FOR CONGRESS, ^^ 701 - 741, 901 - 910, AS WELL AS FOR THE
EXECUTIVE AND JUDICIAL BRANCHES OF GOVERNMENT, ^^ 1101 - 1123.  THE
PUBLIC PRINTER IS AUTHORIZED TO APPOINT THE SUPERINTENDENT OF DOCUMENTS
WITH DUTIES CONCERNING THE DISTRIBUTION AND SALE OF DOCUMENTS.  ^^ 1701
- 1722. 

UNDER THE APPLICABLE STATUTES, WHEN EITHER HOUSE OF CONGRESS ORDERS
A DOCUMENT PRINTED, THE PUBLIC PRINTER IS TO PRINT THE "USUAL NUMBER"
UNLESS A GREATER NUMBER IS ORDERED.  ^ 701.  THE "USUAL NUMBER" IS
1,682, TO BE DIVIDED BETWEEN BOUND AND UNBOUND COPIES AND DISTRIBUTED
TO NAMED OFFICERS OR OFFICES OF THE HOUSE AND SENATE, TO THE LIBRARY OF
CONGRESS, AND TO THE SUPERINTENDENT OF DOCUMENTS FOR FURTHER
DISTRIBUTION "TO THE STATE LIBRARIES AND DESIGNATED DEPOSITORIES." 
IBID.  /14/  THERE ARE ALSO STATUTORY PROVISIONS FOR THE PRINTING OF
EXTRA COPIES, ^ 702, BILLS AND RESOLUTIONS, ^^ 706 - 708, PUBLIC AND
PRIVATE LAWS, POSTAL CONVENTIONS, AND TREATIES, ^^ 709 - 712, JOURNALS,
^ 713, THE CONGRESSIONAL DIRECTORY, ^^ 721 - 722, MEMORIAL ADDRESSES,
^^ 723 - 724, AND THE STATUTES AT LARGE, ^^ 728 - 729.  SECTION 733
PROVIDES THAT "(THE PUBLIC PRINTER ON ORDER OF A MEMBER OF CONGRESS, ON
PREPAYMENT OF THE COST, MAY REPRINT DOCUMENTS AND REPORTS OF COMMITTEES
TOGETHER WITH THE EVIDENCE PAPERS SUBMITTED, OR ANY PART ORDERED
PRINTED BY THE CONGRESS." 

WITH RESPECT TO PRINTING FOR THE EXECUTIVE AND JUDICIAL BRANCHES, IT
IS PROVIDED THAT "(A) HEAD OF AN EXECUTIVE DEPARTMENT . . . MAY NOT
CAUSE TO BE PRINTED, AND THE PUBLIC PRINTER MAY NOT PRINT, A DOCUMENT
OR MATTER UNLESS IT IS AUTHORIZED BY LAW AND NECESSARY TO THE PUBLIC
BUSINESS." 

[[HC322'(ORIGINAL DOCUMENT PAGE 322)'  ^ 1102(A).  THE EXECUTIVE
DEPARTMENTS AND THE COURTS ARE TO REQUISITION PRINTING BY CERTIFYING
THAT IT IS "NECESSARY FOR THE PUBLIC SERVICE."  ^ 1103. 

THE SUPERINTENDENT OF DOCUMENTS HAS CHARGE OF THE DISTRIBUTION OF
ALL PUBLIC DOCUMENTS EXCEPT THOSE PRINTED FOR USE OF THE EXECUTIVE
DEPARTMENTS, "WHICH SHALL BE DELIVERED TO THE DEPARTMENTS," AND FOR
EITHER HOUSE OF CONGRESS, "WHICH SHALL BE DELIVERED TO THE SENATE
SERVICE DEPARTMENT AND HOUSE OF REPRESENTATIVES PUBLICATIONS
DISTRIBUTION SERVICE."  ^ 1702.  HE IS THUS IN CHARGE OF THE PUBLIC
SALE AND DISTRIBUTION OF DOCUMENTS.  THE PUBLIC PRINTER IS INSTRUCTED
TO "PRINT ADDITIONAL COPIES OF A GOVERNMENT PUBLICATION, NOT
CONFIDENTIAL IN CHARACTER, REQUIRED FOR SALE TO THE PUBLIC BY THE
SUPERINTENDENT OF DOCUMENTS," SUBJECT TO REGULATION BY THE JOINT
COMMITTEE ON PRINTING.  ^ 1705. 

IT IS APPARENT THAT UNDER THIS STATUTORY FRAMEWORK, THE PRINTING OF
DOCUMENTS AND THEIR GENERAL DISTRIBUTION TO THE PUBLIC WOULD BE "WITHIN
THE OUTER PERIMETER" OF THE STATUTORY DUTIES OF THE PUBLIC PRINTER AND
THE SUPERINTENDENT OF DOCUMENTS.  BARR V. MATEO, 360 U.S., AT 575. 
THUS, IF OFFICIAL IMMUNITY AUTOMATICALLY ATTACHES TO ANY CONDUCT
EXPRESSLY OR IMPLIEDLY AUTHORIZED BY LAW, THE COURT OF APPEALS
CORRECTLY DISMISSED THE COMPLAINT AGAINST THESE OFFICIALS.  THIS,
HOWEVER, IS NOT THE GOVERNING RULE. 

THE DUTIES OF THE PUBLIC PRINTER AND HIS APPOINTEE, THE
SUPERINTENDENT OF DOCUMENTS, ARE TO PRINT, HANDLE, DISTRIBUTE, AND SELL
GOVERNMENT DOCUMENTS.  THE GOVERNMENT PRINTING OFFICE ACTS AS A SERVICE
ORGANIZATION FOR THE BRANCHES OF THE GOVERNMENT.  WHAT IT PRINTS IS
PRODUCED ELSEWHERE AND IS PRINTED AND DISTRIBUTED AT THE DIRECTION OF
THE CONGRESS, THE DEPARTMENTS, THE INDEPENDENT AGENCIES AND OFFICES, OR
THE JUDICIAL BRANCH OF THE GOVERNMENT. 

[[HC323'(ORIGINAL DOCUMENT PAGE 323)'  THE PUBLIC PRINTER AND
SUPERINTENDENT OF DOCUMENTS EXERCISE DISCRETION ONLY WITH RESPECT TO
ESTIMATING THE DEMAND FOR PARTICULAR DOCUMENTS AND ADJUSTING THE SUPPLY
ACCORDINGLY.  THE EXISTENCE OF A PUBLIC PRINTER MAKES IT UNNECESSARY
FOR EVERY GOVERNMENT AGENCY AND OFFICE TO HAVE A PRINTER OF ITS OWN. 
THE PRINTING OFFICE IS INDEPENDENTLY CREATED AND MANNED AND INVESTED
WITH ITS OWN STATUTORY DUTIES; BUT, WE DO NOT THINK THAT ITS
INDEPENDENT ESTABLISHMENT CARRIES WITH IT AN INDEPENDENT IMMUNITY. 
RATHER, THE PRINTING OFFICE IS IMMUNE FROM SUIT WHEN IT PRINTS FOR AN
EXECUTIVE DEPARTMENT FOR EXAMPLE, ONLY TO THE EXTENT THAT IT WOULD BE
IF IT WERE PART OF THE DEPARTMENT ITSELF OR, IN OTHER WORDS, TO THE
EXTENT THAT THE DEPARTMENT HEAD HIMSELF WOULD BE IMMUNE IF HE RAN HIS
OWN PRINTING PRESS AND DISTRIBUTED HIS OWN DOCUMENTS.  TO HOLD
OTHERWISE WOULD MEAN THAT AN EXECUTIVE DEPARTMENT COULD ACQUIRE
IMMUNITY FOR NON-IMMUNE MATERIALS MERELY BY PRESENTING THE PROPER
CERTIFICATE TO THE PUBLIC PRINTER, WHO WOULD THEN HAVE THE DUTY TO
PRINT THE MATERIAL.  UNDER SUCH A HOLDING, THE DEPARTMENT WOULD HAVE A
SEEMINGLY FOOLPROOF METHOD FOR MANUFACTURING IMMUNITY FOR MATERIALS
WHICH THE COURT WOULD NOT OTHERWISE HOLD IMMUNE IF NOT SUFFICIENTLY
CONNECTED WITH THE "OFFICIAL DUTIES" OF THE DEPARTMENT.  HOWARD V.
LYONS, 360 U.S., AT 597.     CONGRESS HAS CONFERRED NO EXPRESS
STATUTORY IMMUNITY ON THE PUBLIC PRINTER OR THE SUPERINTENDENT OF
DOCUMENTS.  CONGRESS HAS NOT PROVIDED THAT THESE OFFICIALS SHOULD BE
IMMUNE FOR PRINTING AND DISTRIBUTING MATERIALS WHERE THOSE WHO AUTHOR
THE MATERIALS WOULD NOT BE.  WE THUS FACE NO STATUTORY OR
CONSTITUTIONAL PROBLEMS IN INTERPRETING THIS DOCTRINE OF "JUDICIAL
MAKING."  BARR V. MATTEO, 360 U.S., AT 569.  WE DO, HOWEVER, WRITE IN
THE SHADOW OF BOARD OF REGENTS OF STATE COLLEGES V. ROTH, 408 U.S. 564
(1972), AND WISCONSIN V. CONSTANTINEAU, 400 U.S. 433 (1971), WHERE THE
COURT ADVISED CAUTION "(WHERE A PERSON'S GOOD NAME, REPUTATION, HONOR,
OR INTEGRITY IS AT STAKE BECAUSE OF WHAT THE GOVERNMENT IS DOING TO HIM
. . ." 

[[HC324'(ORIGINAL DOCUMENT PAGE 324)'  ID., AT 437.  WE CONCLUDE
THAT, FOR THE PURPOSES OF THE JUDICIALLY FASHIONED DOCTRINE OF
IMMUNITY, THE PUBLIC PRINTER AND THE SUPERINTENDENT OF DOCUMENTS ARE NO
MORE FREE FROM SUIT IN THE CASE BEFORE US THAN WOULD BE A LEGISLATIVE
AIDE WHO MADE COPIES OF THE MATERIALS AT ISSUE AND DISTRIBUTED THEM TO
THE PUBLIC AT THE DIRECTION OF HIS SUPERIORS.  SEE DOMBROWSKI V.
EASTLAND, 387 U.S. 82 (1967).  THE SCOPE OF INQUIRY BECOMES EQUIVALENT
TO THE INQUIRY IN THE CONTEXT OF THE SPEECH OR DEBATE CLAUSE, AND THE
ANSWER IS THE SAME.  THE BUSINESS OF CONGRESS IS TO LEGISLATE;
CONGRESSMEN AND AIDES ARE ABSOLUTELY IMMUNE WHEN THEY ARE LEGISLATING. 
BUT WHEN THEY ACT OUTSIDE THE "SPHERE OF LEGITIMATE LEGISLATIVE
ACTIVITY," TENNEY V. BRANDHOVE, 341 U.S., AT 376, THEY ENJOY NO SPECIAL
IMMUNITY FROM LOCAL LAWS PROTECTING THE GOOD NAME OR THE REPUTATION OF
THE ORDINARY CITIZEN. 

BECAUSE WE THINK THE COURT OF APPEALS APPLIED THE IMMUNITIES OF THE
SPEECH OR DEBATE CLAUSE AND OF THE DOCTRINE OF OFFICIAL IMMUNITY TOO
BROADLY, WE MUST REVERSE ITS JUDGMENT AND REMAND THE CASE FOR
APPROPRIATE FURTHER PROCEEDINGS.  /15/  WE ARE UNAWARE, FROM THIS
RECORD, OF THE EXTENT OF THE PUBLICATION AND DISTRIBUTION OF THE REPORT
WHICH HAS TAKEN PLACE TO DATE.  THUS, WE HAVE LITTLE BASIS FOR JUDGING
WHETHER THE LEGITIMATE LEGISLATIVE NEEDS OF CONGRESS, AND HENCE THE
LIMITS OF IMMUNITY, HAVE BEEN EXCEEDED. 

[[HC325'(ORIGINAL DOCUMENT PAGE 325)'  THESE MATTERS ARE FOR THE
LOWER COURTS IN THE FIRST INSTANCE. 

OF COURSE, LIKE THE COURT OF APPEALS, WE INDICATE NOTHING AS TO
WHETHER PETITIONERS HAVE PLEADED A GOOD CAUSE OF ACTION OR WHETHER
RESPONDENTS HAVE OTHER DEFENSES, CONSTITUTIONAL OR OTHERWISE.  WE HAVE
DEALT ONLY WITH THE THRESHOLD QUESTION OF IMMUNITY.  /16/ 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED IN PART AND
AFFIRMED IN PART, AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/  THE COURT OF APPEALS' OPINION TERMS THE MATERIALS "SOMEWHAT
DEROGATORY."  THE ABSENTEE LISTS NAMED STUDENTS WHO WERE FREQUENT
"CLASS CUTTERS."  OF THE 29 TEST PAPERS PUBLISHED IN THE REPORT, 21
BORE FAILING GRADES; ALL INCLUDED THE NAME OF THE STUDENT BEING
TESTED.  THE LETTERS, MEMORANDA, AND OTHER DOCUMENTS RELATING TO
DISCIPLINARY PROBLEMS DETAILED CONDUCT OF SPECIFICALLY NAMED STUDENTS. 
SOME OF THE DEVIANT CONDUCT DESCRIBED INVOLVED SEXUAL PERVERSION AND
CRIMINAL VIOLATIONS. 

/2/  THE INFORMATION WAS OBTAINED VOLUNTARILY FROM DISTRICT OF
COLUMBIA SCHOOL PERSONNEL BY COMMITTEE INVESTIGATORS. 

/3/  THE PRAYER ALSO INCLUDED A REQUEST FOR AN UNJUNCTION
PROHIBITING FUTURE DISCLOSURE OF "CONFIDENTIAL INFORMATION" AND
REQUIRING THE DISTRICT OF COLUMBIA SCHOOL BOARD "TO ESTABLISH RULES AND
REGULATIONS REGARDING THE CONFIDENTIALITY OF SCHOOL PAPERS AND THE
RIGHT OF PRIVACY OF STUDENTS IN THE SCHOOLS OF THE DISTRICT OF
COLUMBIA." 

/4/  THE DISTRICT COURT ALSO DISMISSED THE SUIT AGAINST THE UNITED
STATES FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES.  28 U.S.C. ^
2675(A).  THAT RULING IS NOT CHALLENGED HERE. 

/5/  THE COURT OF APPEALS ALSO INDEPENDENTLY FOUND THAT INJUNCTIVE
RELIEF WOULD NOT ISSUE BECAUSE OF ASSURANCES FROM THE FEDERAL
DEFENDANTS THAT NO REPUBLICATION OR FURTHER DISTRIBUTION OF THE REPORT
WAS CONTEMPLATED.  WITH RESPECT TO PETITIONERS' REQUEST FOR INJUNCTIVE
RELIEF AGAINST THE DISTRICT OF COLUMBIA OFFICIALS, THE COURT FOUND
THAT, BECAUSE OF THE ADOPTION OF NEW POLICIES CONCERNING CONFIDENTIAL
INFORMATION, "THERE IS NO SUBSTANTIAL THREAT OF FUTURE INJURY TO
APPELLANTS." 

/6/  "OUR SPEECH OR DEBATE PRIVILEGE WAS DESIGNED TO PRESERVE
LEGISLATIVE INDEPENDENCE, NOT SUPREMACY.  OUR TASK, THEREFORE, IS TO
APPLY THE CLAUSE IN SUCH A WAY AS TO INSURE THE INDEPENDENCE OF THE
LEGISLATURE WITHOUT ALTERING THE HISTORIC BALANCE OF THE THREE CO-EQUAL
BRANCHES OF GOVERNMENT."  UNITED STATES V. BREWSTER, 408 U.S. 501, 508
(1972). 

/7/  IN GRAVEL, WE HELD THAT "THE SPEECH OR DEBATE CLAUSE APPLIES
NOT ONLY TO A MEMBER BUT ALSO TO HIS AIDES INSOFAR AS THE CONDUCT OF
THE LATTER WOULD BE A PROTECTED LEGISLATIVE ACT IF PERFORMED BY THE
MEMBER HIMSELF."  GRAVEL V. UNITED STATES, 408 U.S. 606, 618 (1972). 

/8/  THE REPUBLICATION OF A LIBEL, IN CIRCUMSTANCES WHERE THE
INITIAL PUBLICATION IS PRIVILEGED, IS GENERALLY UNPROTECTED.  SEE
GENERALLY 1 F. HARPER & F. JAMES, THE LAW OF TORTS ^ 5.18 (1956); W.
PROSSER, TORTS 766 - 769 (4TH ED. 1971).  SEE ALSO GRAVEL V. UNITED
STATES, 408 U.S., AT 622 - 627. 

/9/  "IN KILBOURN, THE SPEECH OR DEBATE CLAUSE PROTECTED HOUSE
MEMBERS WHO HAD ADOPTED A RESOLUTION AUTHORIZING KILBOURN'S ARREST;
THAT ACT WAS CLEARLY LEGISLATIVE IN NATURE.  BUT THE RESOLUTION WAS
SUBJECT TO JUDICIAL REVIEW INSOFAR AS ITS EXECUTION IMPINGED ON A
CITIZEN'S RIGHTS AS IT DID THERE.  THAT THE HOUSE COULD WITH IMPUNITY
ORDER AN UNCONSTITUTIONAL ARREST AFFORDED NO PROTECTION FOR THOSE WHO
MADE THE ARREST."  GRAVEL V. UNITED STATES, 408 U.S., AT 618. 

/10/  ALTHOUGH, AS POINTED OUT BY MY DISSENTING BRETHREN, THE ACTS
OF SENATOR GRAVEL WERE NOT ORDERED OR AUTHORIZED BY CONGRESS OR A
CONGRESSIONAL COMMITTEE, GRAVEL V. UNITED STATES, 408 U.S., AT 626, THE
FACT OF CONGRESSIONAL AUTHORIZATION FOR THE QUESTIONED ACT IS NOT
SUFFICIENT TO INSULATE THE ACT FROM JUDICIAL SCRUTINY.  IN POWELL V.
MCCORMACK, 395 U.S. 486 (1969), FOR INSTANCE, WE REVIEWED THE ACTS OF
HOUSE EMPLOYEES "ACTING PURSUANT TO EXPRESS ORDERS OF THE HOUSE."  ID.,
AT 504.  WE CONCLUDED THAT "ALTHOUGH AN ACTION AGAINST A CONGRESSMAN
MAY BE BARRED BY THE SPEECH OR DEBATE CLAUSE, LEGISLATIVE EMPLOYEES WHO
PARTICIPATED IN THE UNCONSTITUTIONAL ACTIVITY ARE RESPONSIBLE FOR THEIR
ACTS."  IBID.  SEE ALSO KILBOURN V. THOMPSON, 103 U.S. 168 (1881);
DOMBROWSKI V. EASTLAND, 387 U.S. 82 (1967). 

/11/  WE HAVE NO OCCASION IN THIS CASE TO DECIDE WHETHER OR UNDER
WHAT CIRCUMSTANCES, THE SPEECH OR DEBATE CLAUSE WOULD AFFORD IMMUNITY
TO DISTRIBUTORS OF ALLEGEDLY ACTIONABLE MATERIALS FROM GRAND JURY
QUESTIONING, CRIMINAL CHARGES, OR A SUIT BY THE EXECUTIVE TO RESTRAIN
DISTRIBUTION, WHERE CONGRESS HAS AUTHORIZED THE PARTICULAR PUBLIC
DISTRIBUTION. 

/12/  WHILE AN INQUIRY SUCH AS IS INVOLVED IN THE PRESENT CASE,
BECAUSE IT INVOLVES TWO COORDINATE BRANCHES OF GOVERNMENT, MUST
NECESSARILY HAVE SEPARATION OF POWERS IMPLICATIONS, THE SEPARATION OF
POWERS DOCTRINE HAS NOT PREVIOUSLY PREVENTED THIS COURT FROM REVIEWING
THE ACTS OF CONGRESS, SEE, E. G., KILBOURN V. THOMPSON, SUPRA;
DOMBROWSKI V. EASTLAND, SUPRA, EVEN WHEN THE EXECUTIVE BRANCH IS ALSO
INVOLVED, SEE, E. G., UNITED STATES V. BREWSTER, SUPRA; GRAVEL V.
UNITED STATES, SUPRA. 

/13/  BOTH BEFORE AND AFTER BARR, OFFICIAL IMMUNITY HAS BEEN HELD
APPLICABLE TO OFFICIALS OF THE LEGISLATIVE BRANCH.  SEE TENNEY V.
BRANDHOVE, 341 U.S. 367 (1951); DOMBROWSKI V. EASTLAND, SUPRA. 

/14/  FOR THE AUTHORIZATION TO SUPPLY SUFFICIENT COPIES FOR SUCH
DISTRIBUTION SEE ^ 738.  THE PUBLIC PRINTER IS ALSO REQUIRED TO FURNISH
THE DEPARTMENT OF STATE WITH 20 COPIES OF ALL CONGRESSIONAL DOCUMENTS
AND REPORTS.  44 U.S.C. ^ 715. 

/15/  WITH RESPECT TO THE DISTRICT OF COLUMBIA RESPONDENTS, THE
COURT OF APPEALS FOUND THAT THEY WERE ACTING WITHIN THE SCOPE OF THEIR
AUTHORITY UNDER APPLICABLE LAW AND, AS A RESULT, WERE IMMUNE FROM
SUIT.  WE DO NOT DISTURB THE JUDGMENT OF THE COURT OF APPEALS IN THIS
RESPECT. 

/16/  WE THUS HAVE NO OCCASION TO CONSIDER ART. I, ^ 5, CL. 3, WHICH
REQUIRES THAT "EACH HOUSE SHALL KEEP A JOURNAL OF ITS PROCEEDINGS, AND
FROM TIME TO TIME PUBLISH THE SAME, EXCEPTING SUCH PARTS AS MAY IN
THEIR JUDGMENT REQUIRE SECRECY . . ."; NOR NEED WE DEAL WITH
PUBLICATIONS OF THE JUDICIAL BRANCH AND THE LEGAL IMMUNITIES THAT MAY
BE ATTACHED THERETO. 

[[DOP 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, CONCURRING. 

I AGREE WITH THE COURT THAT THE ISSUE TENDERED IS JUSTICIABLE, AND
THAT THE COMPLAINT STATES A CAUSE OF ACTION.  THOUGH I JOIN THE OPINION
OF THE COURT, I AMPLIFY MY OWN VIEWS AS THEY TOUCH ON THE MERITS. 

        I 

RESPONDENTS, RELYING PRIMARILY ON GRAVEL V. UNITED STATES, 408 U.S.
606, URGE THAT THE REPORT, CONCEDEDLY PART AND PARCEL OF THE
LEGISLATIVE PROCESS, IS IMMUNE FROM THE PURVIEW OF THE COURTS UNDER THE
SPEECH OR DEBATE CLAUSE OF ART. I, ^ 6, OF THE CONSTITUTION.  /1/  IN
GRAVEL WE HELD THAT NEITHER SENATOR GRAVEL NOR HIS AIDES COULD BE HELD
ACCOUNTABLE OR QUESTIONED WITH RESPECT TO EVENTS OCCURRING AT THE
SUBCOMMITTEE HEARING AT WHICH THE PENTAGON PAPERS WERE INTRODUCED INTO
THE PUBLIC RECORD.  THE IMMUNITY IN THAT CASE ATTACHED TO THE SENATOR
AND HIS AIDES, AND THERE IS NO INTIMATION WHATSOEVER THAT COMMITTEE
REPORTS ARE SACROSANCT FROM JUDICIAL SCRUTINY.  IN FACT, THE COURT
DISCLAIMED ANY NEED TO "ADDRESS ISSUES THAT MAY ARISE WHEN CONGRESS OR
EITHER HOUSE, AS DISTINGUISHED FROM A SINGLE MEMBER, ORDERS THE
PUBLICATION AND/OR PUBLIC DISTRIBUTION OF COMMITTEE HEARINGS, REPORTS,
OR OTHER MATERIALS."  /2/  ID., AT 626 N. 16. 

"LEGISLATIVE IMMUNITY DOES NOT, OF COURSE, BAR ALL JUDICIAL REVIEW OF
LEGISLATIVE ACTS."  POWELL V. MCCORMACK, 395 U.S. 486, 503.  "THE
PURPOSE OF THE PROTECTION AFFORDED LEGISLATORS IS NOT TO FORESTALL
JUDICIAL REVIEW OF LEGISLATIVE ACTION BUT TO INSURE THAT LEGISLATORS
ARE NOT DISTRACTED FROM OR HINDERED IN THE PERFORMANCE OF THEIR
LEGISLATIVE TASKS BY BEING CALLED INTO COURT TO DEFEND THEIR ACTIONS." 
ID., AT 505.  THIS HAS BEEN CLEAR SINCE CHIEF JUSTICE MARSHALL'S
SEMINAL DECISION IN MARBURY V. MADISON, 1 CRANCH 137.  WE ALWAYS HAVE
RECOGNIZED THE "JUDICIAL POWER TO DETERMINE THE VALIDITY OF LEGISLATIVE
ACTIONS IMPINGING ON INDIVIDUAL RIGHTS."  GRAVEL V. UNITED STATES,
SUPRA, AT 620. 

IN KILBOURN V. THOMPSON, 103 U.S. 168, THE COURT'S FIRST DECISION TO
CONSIDER THE SPEECH OR DEBATE CLAUSE, THE COURT HELD UNCONSITUTIONAL A
RESOLUTION OF THE HOUSE ORDERING THE ARREST OF KILBOURN FOR REFUSING TO
HONOR A SUBPOENA OF A HOUSE INVESTIGATING COMMITTEE, SINCE THE HOUSE
HAD NO POWER TO PUNISH FOR CONTEMPT.  ALTHOUGH THE COURT BARRED A CLAIM
FOR FALSE IMPRISONMENT AGAINST MEMEBERS OF THE HOUSE, IT NEVERTHELESS
REACHED THE MERITS OF KILBOURN'S CLAIM AND ALLOWED AN ACTION AGAINST
THE HOUSE'S SERGEANT AT ARMS, WHO HAD EXECUTED THE WARRANT FOR
KILBOURN'S ARREST. 

DOMBROWSKI V. EASTLAND, 387 U.S. 82, INVOLVED SUITS FOR AN
INJUNCTION AND FOR DAMAGES AGAINST A SENATOR WHO HEADED A SUBCOMMITTEE
OF THE SENATE JUDICIARY COMMITTEE AND COUNSEL TO THE SUBCOMMITTEE FOR
WRONGFUL AND UNLAWFUL SEIZURE OF PROPERTY IN VIOLATION OF THE FOURTH
AMENDMENT.  WE AGREED THAT THE COMPLAINT AGAINST THE SENATOR MUST BE
DISMISSED BECAUSE THE RECORD "DOES NOT CONTAIN EVIDENCE OF HIS
INVOLVEMENT IN ANY ACTIVITY THAT COULD RESULT IN LIABILITY."  ID., AT
84.  AS RESPECTS COUNSEL TO THE SUBCOMMITTEE WE HELD, IN RELIANCE ON
TENNEY V. BRANDHOVE, 341 U.S. 367, THAT THE IMMUNITY GRANTED BY THE
SPEECH OR DEBATE CLAUSE "IS LESS ABSOLUTE, ALTHOUGH APPLICABLE, WHEN
APPLIED TO OFFICERS OR EMPLOYEES OF A LEGISLATIVE BODY, RATHER THAN TO
LEGISLATORS THEMSELVES."  387 U.S., AT 85.  ACCORDINGLY, WE REMANDED
THE CASE AGAINST COUNSEL TO THE SUBCOMMITTEE FOR TRIAL BECAUSE THERE
WAS "A SUFFICIENT FACTUAL DISPUTE" TO REQUIRE A TRIAL.  ACTS DONE IN
VIOLATION OF THE FOURTH AMENDMENT -- LIKE ASSAULTS WITH FISTS OR CLUBS
OR GUNS -- ARE OUTSIDE THE PROTECTIVE AMBIT OF THE SPEECH OR DEBATE
CLAUSE; CERTAINLY VIOLATIONS OF THE FOURTH AMENDMENT ARE NOT WITHIN THE
SCOPE OF A LEGITIMATE LEGISLATIVE PURPOSE. 

A STRIKING ILLUSTRATION OF THE SAME PRINCIPLE WAS STATED IN WATKINS
V. UNITED STATES, 354 U.S. 178, 188:  "THE BILL OF RIGHTS IS APPLICABLE
TO INVESTIGATIONS AS TO ALL FORMS OF GOVERNMENTAL ACTION.  WITNESSES
CANNOT BE COMPELLED TO GIVE EVIDENCE AGAINST THEMSELVES.  THEY CANNOT
BE SUBJECTED TO UNREASONABLE SEARCH AND SEIZURE.  NOR CAN THE FIRST
AMENDMENT FREEDOMS OF SPEECH, PRESS, RELIGION, OR POLITICAL BELIEF AND
ASSOCIATION BE ABRIDGED."  AND SEE BARENBLATT V. UNITED STATES, 360
U.S. 109, 153, 166 (DISSENTING OPINIONS OF BLACK, J., AND BRENNAN,
J.).  A WITNESS SUBPOENAED TO TESTIFY BEFORE A CONGRESSIONAL COMMITTEE
MAY NOT BE FORCED TO REVEAL HIS BELIEFS.  ONE'S CONSCIENCE AND THOUGHTS
ARE MATTERS OF PRIVACY AS IS THE WHOLE ARRAY OF ONE'S BELIEFS OR
VALUES.  AND, AS WATKINS INDICATES, A WITNESS REFUSING TO SO TESTIFY
MAY NOT BE PUNISHED FOR CONTEMPT.  VIOLATIONS OF THE COMMANDS OF THE
FIRST AMENDMENT ARE NOT WITHIN THE SCOPE OF A LEGITIMATE LEGISLATIVE
PURPOSE. 

I CANNOT AGREE, THEN, THAT THE QUESTION FOR US IS "WHETHER (PUBLIC
DISSEMINATION), SIMPLY BECAUSE AUTHORIZED BY CONGRESS, MUST ALWAYS BE
CONSIDERED 'AN INTEGRAL PART OF THE DELIBERATIVE AND COMMUNICATIVE
PROCESSES BY WHICH MEMBERS PARTICIPATE IN COMMITTEE AND HOUSE
PROCEEDINGS' WITH RESPECT TO LEGISLATIVE OR OTHER MATTERS BEFORE THE
THE HOUSE."  A LEGISLATOR'S FUNCTION IN INFORMING THE PUBLIC CONCERNING
MATTERS BEFORE CONGRESS OR CONCERNING THE ADMINISTRATION OF GOVERNMENT
IS ESSENTIAL TO MAINTAINING OUR REPRESENTATIVE DEMOCRACY.  UNLESS WE
ARE TO PUT BLINDERS ON OUR CONGRESSMEN AND ISOLATE THEM FROM THEIR
CONSTITUENTS, THE INFORMING FUNCTION MUST BE ENTITLED TO THE SAME
PROTECTION OF THE SPEECH OR DEBATE CLAUSE AS THOSE ACTIVITIES WHICH
RELATE DIRECTLY AND NECESSARILY TO THE IMMEDIATE FUNCTION OF
LEGISLATING.  SEE GRAVEL V. UNITED STATES, SUPRA, AT 634 - 637
(DOUGLAS, J., DISSENTING), ID., AT 649 - 662 (BRENNAN, J.,
DISSENTING).  IN MY VIEW THE QUESTION TO WHICH WE SHOULD DIRECT OUR
ATTENTION IS WHETHER THE HOUSE REPORT INFRINGES UPON THE CONSTITUTIONAL
RIGHTS OF PETITIONERS AND THEREFORE IS SUBJECT TO SCRUTINY BY THE
FEDERAL COURTS. 

II 

THE HOUSE AUTHORIZED ITS DISTRICT COMMITTEE "TO CONDUCT A FULL AND
COMPLETE INVESTIGATION AND STUDY OF . . . (1) THE ORGANIZATION,
MANAGEMENT, OPERATION, AND ADMINISTRATION OF ANY DEPARTMENT OR AGENCY
OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA; (2) THE ORGANIZATION,
MANAGEMENT, OPERATION, AND ADMINISTRATION OF ANY INDEPENDENT AGENCY OR
INSTRUMENTALITY OF GOVERNMENT OPERATING SOLELY IN THE DISTRICT OF
COLUMBIA."  /3/ 

IT WAS PURSUANT TO THIS INVESTIGATION AND STUDY THAT THE REPORT IN
EFFECT BRANDS CERTAIN NAMED STUDENTS AS JUVENILE DELINQUENTS.  AS
STATED BY JUDGE WRIGHT IN HIS DISSENT BELOW: 

     "THE MATERIAL INCLUDED IN THE COMMITTEE REPORT IS NOT, AS THE

MAJORITY CONTENDS, MERELY 'SOMEWHAT DEROGATORY.'  ONE

  DISCIPLINARY LETTER, FOR EXAMPLE, ALLEGES THAT A SPECIFICALLY

  NAMED CHILD WAS 'INVOLVED IN THE LOSS OF FIFTY CENTS' AND

  'INVITED A MALE SUBSTITUTE TO HAVE SEXUAL RELATIONS WITH HER,

  GAPPING HER LEGS OPEN FOR ENTICEMENT.'  SIMILAR LETTERS ACCUSED

  NAMED CHILDREN OF DISRESPECT, PROFANITY, VANDALISM, ASSAULT AND

  THEFT.  OF THE 29 TEST PAPERS PUBLISHED IN THE REPORT, 21 BORE

  FAILING GRADES.  YET APPELLANTS SEEK ONLY TO PROHIBIT USE OF THE

  CHILDREN'S NAMES WITHOUT THEIR CONSENT.  THEY DO NOT CONTEST THE

  PROPRIETY OF THE INVESTIGATION GENERALLY, NOR DO THEY SEEK TO

  ENJOIN THE CONCLUSIONS OR TEST OF THE REPORT.  INDEED, THEY DO

 NOT EVEN CHALLENGE THE RIGHT OF CONGRESS TO EXAMINE AND SUMMARIZE

  THE CONFIDENTIAL MATERIAL INVOLVED.  THEY WISH ONLY TO RETAIN

  THEIR ANONYMITY."  148 U.S. APP. D. C. 280, 300, 459 F.2D 1304,

  1324. 

WE ALL SHOULD BE PAINFULLY AWARE OF THE POTENTIALLY DEVASTATING
EFFECTS OF CONGRESSIONAL ACCUSATIONS.  THERE ARE GREAT STAKES INVOLVED
WHEN OFFICIALS CONDEMN INDIVIDUALS BY NAME.  THE AGE OF TECHNOLOGY HAS
PRODUCED DATA BANKS INTO WHICH ALL SOCIAL SECURITY NUMBERS GO; AND
FOLLOWING THOSE NUMBERS GO DATA IN DESIGNATED CATEGORIES CONCERNING THE
LIVES OF MEMBERS OF OUR COMMUNITIES.  ARRESTS GO IN, THOUGH MANY
ARRESTS ARE UNCONSTITUTIONAL.  ACTS OF JUVENILE DELINQUENCY ARE
PERMANENTLY RECORDED AND THEY AND OTHER ALLEGED MISDEEDS OR
INDISCRETIONS MAY BE DEVASTATING TO A PERSON IN LATER YEARS WHEN HE HAS
OUTGROWN YOUTHFUL INDISCRETIONS AND IS TRYING TO LAUNCH A PROFESSIONAL
CAREER OR MOVE INTO A POSITION WHERE STEADFASTNESS IS REQUIRED. 

CONGRESS, IN NAMING THE STUDENTS WITHOUT JUSTIFICATION EXCEEDED THE
"SPHERE OF LEGITIMATE LEGISLATIVE ACTIVITY."  TENNEY V. BRANDHOVE, 341
U.S., AT 376.  THERE CAN BE NO QUESTION THAT THE RESOLUTION AUTHORIZING
THE INVESTIGATION AND STUDY EXPRESSED A LEGITIMATE LEGISLATIVE
PURPOSE.  NEVERTHELESS, NEITHER THE INVESTIGATORY NOR, INDEED, THE
INFORMING FUNCTION OF CONGRESS AUTHORIZES ANY "CONGRESSIONAL POWER TO
EXPOSE FOR THE SAKE OF EXPOSURE."  WATKINS V. UNITED STATES, 354 U.S.,
AT 200.  TO THE CONTRARY, THERE IS SIMPLY "NO GENERAL AUTHORITY TO
EXPOSE THE PRIVATE AFFAIRS OF INDIVIDUALS WITHOUT JUSTIFICATION IN
TERMS OF THE FUNCTIONS OF THE CONGRESS."  ID., AT 187.  THE NAMES OF
SPECIFIC STUDENTS WERE TOTALLY IRRELEVANT TO THE PURPOSES OF THE
STUDY.  THE FUNCTIONS OF THE COMMITTEE WOULD HAVE BEEN SERVED EQUALLY
WELL IF THE STUDENTS HAD REMAINED ANONYMOUS. 

IT IS TRUE, OF COURSE, THAT MEMBERS OF CONGRESS MAY, EVEN IN A CASE
SUCH AS THIS, RETAIN THEIR IMMUNITY UNDER THE SPEECH OR DEBATE CLAUSE. 
BUT IN THIS CASE, BOTH THE PUBLIC PRINTER AND THE SUPERINTENDENT OF
DOCUMENTS, OFFICIAL AGENCIES ENTRUSTED BY CONGRESS WITH PRINTING
RESPONSIBILITIES, ARE NAMED AS DEFENDANTS.  AND IN THE CONTEXT OF THIS
CASE, SUCH DEFENDANTS MAY BE HELD RESPONSBILE FOR THEIR ACTIONS.  SEE
POWELL V. MCCORMACK, SUPRA; DOMBROWSKI V. EASTLAND, SUPRA; KILBOURN V.
THOMPSON, SUPRA. 

AT THE VERY LEAST PETITIONERS ARE ENTITLED TO INJUNCTIVE RELIEF. 
THE SCOPE OF THE INJUNCTION AND AGAINST WHOM IT SHOULD OPERATE ONLY CAN
BE DETERMINED UPON REMAND AFTER A FULL HEARING ON THE FACTS.  WE CANNOT
SAY WHETHER THERE IS A FUTURE PUBLIC DISTRIBUTION OR WHETHER IT WILL BE
FEASIBLE FOR ANY PERSON SUBJECT TO THE EQUITABLE POWERS OF THE COURT TO
EXCISE THE STUDENTS' NAMES FROM REPORTS PREVIOUSLY DISTRIBUTED.  WITH
RESPECT TO DAMAGES -- THAT IS, WHETHER RESPONDENTS, INCLUDING THE
MEMBERS OF THE DISTRICT OF COLUMBIA GOVERNMENT IF A VALID CLAIM IS
STATED AGAINST THEM, ARE PROTECTED BY THE DOCTRINE OF OFFICIAL IMMUNITY
AS SET FORTH IN THE OPINION FOR THE COURT -- I AGREE THAT IT IS A
MATTER FOR THE LOWER COURTS IN THE FIRST INSTANCE. 

[[DFN 

/1/  THAT CLAUSE IN RELEVANT PART PROVIDES:  "(AND FOR ANY SPEECH OR
DEBATE IN EITHER HOUSE, (SENATORS AND REPRESENTATIVES) SHALL NOT BE
QUESTIONED IN ANY OTHER PLACE." 

/2/  THE COMMITTEE REPORT WAS TRANSMITTED TO THE HOUSE BY THE
CHAIRMAN OF THE COMMITTEE, WAS REFERRED TO THE CALENDAR OF THE
COMMITTEE OF THE WHOLE HOUSE ON THE STATE OF THE UNION, AND WAS ORDERED
TO BE PRINTED. 

/3/  H. RES. 76, 91ST CONG., 1ST SESS., 115 CONG. REC. 2784. 

[[DOP 

MR. CHIEF JUSTICE BURGER, CONCURRING IN PART AND DISSENTING IN
PART. 

I CANNOT ACCEPT THE PROPOSITION THAT THE JUDICIARY HAS POWER TO CARRY
ON A CONTINUING SURVEILLANCE OF WHAT CONGRESS MAY AND MAY NOT PUBLISH
BY WAY OF REPORTS ON INQUIRY INTO SUBJECTS PLAINLY WITHIN THE
LEGISLATIVE POWERS CONFERRED ON CONGRESS BY THE CONSTITUTION.  THE
INQUIRIES CONDUCTED BY CONGRESS HERE WERE WITHIN ITS BROAD LEGISLATIVE
AUTHORITY AND THE SPECIFIC POWERS CONFERRED BY ART. I, ^ 8, CL. 17. 

IT SEEMS EXTRAORDINARY TO ME THAT WE GRANT TO THE STAFF AIDES OF
MEMBERS OF THE SENATE AND THE HOUSE AN IMMUNITY THAT THE COURT TODAY
DENIES TO A VERY SENIOR FUNCTIONARY, THE PUBLIC PRINTER.  HISTORICALLY
AND FUNCTIONALLY THE PUBLIC PRINTER IS SIMPLY THE EXTENDED ARM OF THE
CONGRESS ITSELF, CHARGED BY LAW WITH EXECUTING CONGRESSIONAL COMMANDS. 

VERY RECENTLY, IN UNITED STATES V. BREWSTER, 408 U.S. 501, 516
(1972), WE EXPLICITLY TOOK NOTE OF THE "CONSCIOUS CHOICE" MADE BY THE
AUTHORS OF THE CONSTITUTION TO GIVE BROAD PRIVILEGES AND PROTECTION TO
MEMBERS OF CONGRESS FOR ACTS WITHIN THE SCOPE OF THEIR LEGISLATIVE
FUNCTION.  AS JUSTICES BLACKMUN AND REHNQUIST HAVE DEMONSTRATED SO
WELL, THE ACTS HERE COMPLAINED OF WERE NOT OUTSIDE THE TRADITIONAL
LEGISLATIVE FUNCTION OF CONGRESS.  I JOIN FULLY IN THE CONCURRING AND
DISSENTING OPINION OF MR. JUSTICE BLACKMUN, POST, THIS PAGE, AND THAT
OF MR. JUSTICE REHNQUIST, POST, P. 338. 

[[DOP 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING
IN PART AND DISSENTING IN PART. 

I JOIN MR. JUSTICE REHNQUIST'S OPINION, POST, P. 338, BUT ADD SOME
COMMENTS OF MY OWN. 

EACH STEP IN THE LEGISLATIVE REPORT PROCESS, FROM THE GATHERING OF
INFORMATION IN THE COURSE OF AN OFFICIALLY AUTHORIZED INVESTIGATION TO
AND INCLUDING THE OFFICIAL PRINTING AND OFFICIAL DISTRIBUTION OF THAT
INFORMATION IN THE FORMAL REPORT, IS LEGITIMATE LEGISLATIVE ACTIVITY
AND IS DESIGNED TO FULFILL A PARTICULAR OBJECTIVE.  MORE OFTEN THAN
NOT, WHEN A CONGRESSIONAL COMMITTEE PREPARES A REPORT, IT DOES SO NOT
ONLY WITH THE OBJECT OF ADVISING FELLOW MEMBERS OF CONGRESS AS TO THE
SUBJECT MATTER, BUT WITH THE FURTHER OBJECTS (1) OF ADVISING THE PUBLIC
OF PROPOSED LEGISLATIVE ACTION, (2) OF INFORMING THE PUBLIC OF THE
PRESENCE OF PROBLEMS AND ISSUES, (3) OF RECEIVING FROM THE PUBLIC, IN
RETURN, CONSTRUCTIVE COMMENTS AND SUGGESTIONS, AND (4) OF ENABLING THE
PUBLIC TO EVALUATE THE PERFORMANCE OF THEIR ELECTED REPRESENTATIVES IN
THE CONGRESS.  THE COURT HAS RECOGNIZED AND SPECIFICALLY EMPHASIZED THE
IMPORTANCE, AND THE SIGNIFICANT POSTURE, OF THE COMMITTEE REPORT AS AN
INTEGRAL PART OF THE LEGISLATIVE PROCESS WHEN, REPEATEDLY AND CLEARLY,
IT HAS AFFORDED SPEECH OR DEBATE COVERAGE FOR A MEMBER'S WRITING,
SIGNING, OR VOTING IN FAVOR OF A COMMITTEE REPORT JUST AS IT HAS FOR A
MEMBER'S SPEAKING IN FORMAL DEBATE ON THE FLOOR.  GRAVEL V. UNITED
STATES, 408 U.S. 606, 617, 624 (1972); POWELL V. MCCORMACK, 395 U.S.
486, 502 (1969); KILBOURN V. THOMPSON, 103 U.S. 168, 204 (1881).  /1/
THAT PROTECTION IS PRESERVED BY THE COURT IN THIS CASE, ANTE, AT 311 -
313, BECAUSE THE COURT APPRECIATES THAT CONGRESS MUST POSSESS
UNINHIBITED INTERNAL COMMUNICATION. 

THE COURT PREVIOUSLY HAS OBSERVED THAT CONGRESS POSSESSES THE POWER
"TO INQUIRE INTO AND PUBLICIZE CORRUPTION, MALADMINISTRATION OR
INEFFICIENCY IN THE AGENCIES OF THE GOVERNMENT" BECAUSE THE PUBLIC IS
"ENTITLED TO BE INFORMED CONCERNING THE WORKINGS OF ITS GOVERNMENT." 
WATKINS V. UNITED STATES, 354 U.S. 178, 200 AND N. 33 (1957).  INDEED,
AS TO THIS KIND OF ACTIVITY, WOODROW WILSON LONG AGO OBSERVED, "THE
INFORMING FUNCTION OF CONGRESS SHOULD BE PREFERRED EVEN TO ITS
LEGISLATIVE FUNCTION."  /2/  THE SPEECH OR DEBATE CLAUSE IS AN
OUTGROWTH OF THE ENGLISH DOCTRINE THAT THE COURTS SHOULD NOT BE
UTILIZED AS INSTRUMENTS TO IMPEDE THE EFFICIENT FUNCTIONING OF
PARLIAMENT.  KILBOURN V. THOMPSON, 103 U.S., AT 201 - 205.  BECAUSE THE
"INFORMING FUNCTION" IS AN ESSENTIAL ATTRIBUTE OF AN EFFECTIVE
LEGISLATIVE BRANCH, I FEEL THE COURT'S CURTAILMENT OF THAT FUNCTION
TODAY VIOLATES THE HISTORICAL TRADITION SIGNIFIED TEXTUALLY BY THE
SPEECH OR DEBATE CLAUSE AND UNDERLYING OUR DOCTRINE OF SEPARATION OF
POWERS. 

IT MAY BE THAT A CONGRESSIONAL COMMITTEE'S ACTIVITIES AND REPORT ARE
NOT PROTECTED ABSOLUTELY BY THE SPEECH OR DEBATE CLAUSE.  ONE MAY
ASSUME THAT THERE MUST BE A LEGITIMATE LEGISLATIVE PURPOSE IN
UNDERTAKING THE INVESTIGATION OR HEARING THAT CULMINATES IN THE
REPORT.  WATKINS V. UNITED STATES, 354 U.S., AT 200; BARENBLATT V.
UNITED STATES, 360 U.S. 109 (1959).  I SUGGEST, HOWEVER, THAT THE
PUBLICATION AND DISTRIBUTION OF A REPORT COMPILED IN CONNECTION WITH AN
OFFICIALLY AUTHORIZED INVESTIGATION IS AS MUCH AN "INTEGRAL PART OF THE
DELIBERATIVE AND COMMUNICATIVE PROCESSES BY WHICH MEMBERS PARTICIPATE
IN COMMITTEE AND HOUSE PROCEEDINGS WITH RESPECT TO THE CONSIDERATION
AND PASSAGE OR REJECTION OF PROPOSED LEGISLATION," GRAVEL V. UNITED
STATES, 408 U.S., AT 625, AS IS THE GATHERING OF INFORMATION OR WRITING
AND VOTING FOR THE PUBLICATION OF THE REPORT.  IN THE CASE BEFORE US,
THERE CAN BE NO QUESTION THAT THE ACTIVITIES OF THE DISTRICT OF
COLUMBIA COMMITTEE OF THE HOUSE OF REPRESENTATIVES WERE OFFICIALLY
AUTHORIZED AND UNDERTAKEN FOR A PROPER LEGISLATIVE PURPOSE.  PLENARY
JURISDICTION OVER THE DISTRICT OF COLUMBIA IS SPECIFICALLY VESTED IN
CONGRESS BY ART. I, ^ 8, OF THE CONSITUTION.  /3/  MATTERS SUCH AS THE
QUALITY OF EDUCATION AFFORDED BY THE DISTRICT'S SCHOOLS, AND THE
ADMINISTRATIVE PROBLEMS THEY FACE, OBVIOUSLY ARE WITHIN THE SCOPE OF
THE JURISDICTION OF THE DISTRICT COMMITTEE.  IN THIS CASE, IT
LEGITIMATELY UNDERTOOK ITS INVESTIGATION OF THE ADMINISTRATION OF THE
SCHOOL SYSTEM.  /4/  AT THE CONCLUSION OF ITS INVESTIGATION THE
COMMITTEE DECIDED, AS DID THE COMMITTEE OF THE WHOLE HOUSE ON THE STATE
OF THE UNION, /5/  THAT, AS A MATTER OF LEGISLATIVE JUDGMENT, THE
REPORT SHOULD BE PRINTED.  IT WAS STATED THAT ATTACHMENTS TO ONE
PORTION THEREOF WERE INCLUDED TO "GIVE A REALISTIC VIEW" OF A TROUBLED
SCHOOL "AND THE LACK OF ADMINISTRATIVE EFFORTS TO RECTIFY THE
MULTITUDINOUS PROBLEMS THERE."  /6/  THE REPORT WAS PRINTED AND
DISTRIBUTED BY THE GOVERNMENT PRINTING OFFICE PURSUANT TO 44 U.S.C. ^^
501 AND 701.  /7/  THIS DECISION, THOUGH REASONABLE MEN WELL MAY DIFFER
AS TO ITS WISDOM, WAS A CONSCIOUS EXERCISE OF LEGISLATIVE DISCRETION
CONSTITUTIONALLY VESTED IN THE LEGISLATIVE BRANCH AND NOT SUBJECT TO
REVIEW BY THE JUDICIARY.  INDEED, AS MR. JUSTICE REHNQUIST OBSERVES,
POST, AT 339 - 340, THIS COURT HAS STATED THAT IT IS "NOT CONSONANT
WITH OUR SCHEME OF GOVERNMENT FOR A COURT TO INQUIRE INTO THE MOTIVES
OF LEGISLATORS."  TENNEY V. BRANDHOVE, 341 U.S. 367, 377 (1951). 

ALTHOUGH THE COURT IN THE PRESENT CASE HOLDS THAT THE GATHERING OF
INFORMATION, THE PREPARATION OF A REPORT, AND THE VOTING ON A
RESOLUTION AUTHORIZING THE PRINTING OF A COMMITTEE REPORT ARE PROTECTED
ACTIVITIES UNDER THE SPEECH OR DEBATE CLAUSE, IT RENDERS THAT
PROTECTION FOR MEMBERS OF CONGRESS AND LEGISLATIVE PERSONNEL LESS THAN
MEANINGFUL BY FURTHER HOLDING THAT THE AUTHORIZED PUBLIC DISTRIBUTION
OF A COMMITTEE DOCUMENT MAY BE ENJOINED AND THOSE RESPONSIBLE FOR THE
DISTRIBUTION HELD LIABLE WHEN THE DOCUMENT CONTAINS MATERIALS
"OTHERWISE ACTIONABLE UNDER LOCAL LAW."  ANTE, AT 317.  THE COURT'S
HOLDING THUS IMPOSES ON CONGRESS THE ONEROUS BURDEN OF JUSTIFYING,
APPARENTLY BY "SUBSTANTIAL EVIDENCE," IBID., THE INCLUSION OF ALLEGEDLY
ACTIONABLE MATERIAL IN COMMITTEE DOCUMENTS.  /8/  THIS, UNFORTUNATELY,
IGNORES THE REALITIES OF THE "DELIBERATIVE AND COMMUNICATIVE
PROCESSES,"  GRAVEL V. UNITED STATES, 408 U.S., AT 625, BY WHICH
LEGISLATIVE DECISIONMAKING TAKES PLACE. 

ALTHOUGH IT IS REGRETTABLE THAT A PERSON'S REPUTATION MAY BE DAMAGED
BY THE NECESSITIES OR THE MISTAKES OF THE LEGISLATIVE PROCESS, /9/  THE
VERY ACT OF DETERMINING JUDICIALLY WHETHER THERE IS "SUBSTANTIAL
EVIDENCE" TO JUSTIFY THE INCLUSION OF "ACTIONABLE"  INFORMATION IN A
COMMITTEE REPORT IS A CENSORSHIP THAT VIOLATES THE CONGRESSIONAL FREE
SPEECH CONCEPT EMBODIED IN THE SPEECH OR DEBATE CLAUSE /10/  AND IS, AS
WELL, THE IMPOSITION OF THIS COURT'S JUDGMENT IN MATTERS TEXTUALLY
COMMITTED TO THE DISCRETION OF THE LEGISLATIVE BRANCH BY ART. I OF THE
CONSTITUTION.  I SUSPECT THAT MR. CHIEF JUSTICE MARSHALL AND HIS
CONCURRING JUSTICES WOULD BE ASTONISHED TO LEARN THAT THE TIME-HONORED
DOCTRINE OF JUDICIAL REVIEW THEY ENUNCIATED IN MARBURY V. MADISON, 1
CRANCH 137 (1803), HAS BEEN UTILIZED TO FOSTER THE RESULT REACHED BY
THE COURT TODAY.  /11/     STATIONING THE FEDERAL JUDICIARY AT THE
DOORS OF THE HOUSES OF CONGRESS FOR THE PURPOSE OF SANITIZING
CONGRESSIONAL DOCUMENTS IN ACCORD WITH THIS COURT'S CONCEPT OF WISE
LEGISLATIVE DECISIONMAKING POLICY APPEARS TO ME TO REVEAL A LACK OF
CONFIDENCE IN OUR POLITICAL PROCESSES AND IN THE ABILITY OF CONGRESS TO
POLICE ITS OWN MEMBERS.  IT IS INEVITABLE THAT OCCASIONALLY, AS PERHAPS
IN THIS CASE, CONGRESS IN FULFILLING ITS LEGISLATIVE RESPONSIBLITY. 
THAT, HOWEVER, IS THE PRICE WE PAY FOR REPRESENTATIVE GOVERNMENT.  I AM
FIRMLY CONVINCED THAT THE ABUSES WE COUNTENANCE IN OUR SYSTEM ARE
VASTLY OUTWEIGHED BY THE DEMONSTRATED ABILITY OF THE POLITICAL PROCESS
TO CORRECT OVERZEALOUSNESS ON THE PART OF ELECTED REPRESENTATIVES. 

[[DFN 

/1/  WE ARE TO READ THE SPEECH OR DEBATE CLAUSE "BROADLY TO
EFFECTUATE ITS PURPOSES."  UNITED STATES V. JOHNSON, 383 U.S. 169, 180
(1966); GRAVEL V. UNITED STATES, 408 U.S. 606, 624 (1972).  THE
"CENTRAL ROLE" OF THE CLAUSE IS "TO PREVENT INTIMIDATION OF LEGISLATORS
BY THE EXECUTIVE AND ACCOUNTABILITY BEFORE A POSSIBLY HOSTILE
JUDICIARY," ID., AT 617.  THE BREADTH OF COVERAGE OF THE SPEECH OR
DEBATE CLAUSE MUST BE NO LESS EXTENSIVE THAN THE LEGISLATIVE PROCESS IT
IS DESIGNED TO PROTECT, FOR THE CLAUSE INSURE FOR CONGRESS "WIDE
FREEDOM OF SPEECH, DEBATE, AND DELIBERATION WITHOUT INTIMIDATION OR
THREATS FROM THE EXECUTIVE BRANCH," ID., AT 616, OR, I MIGHT SUPPOSE,
FROM THE JUDICIARY. 

/2/  "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.  THE ARGUMENT IS NOT ONLY THAT DISCUSSED AND
INTERROGATED ADMINISTRATION IS THE ONLY PURE AND EFFICIENT
ADMINISTRATION, BUT, MORE THAN THAT, THAT THE ONLY REALLY SELF
GOVERNING PEOPLE IS THAT PEOPLE WHICH DISCUSSES AND INTERROGATES ITS
ADMINISTRATION."  W. WILSON, CONGRESSIONAL GOVERNMENT 303 (1885). 

/3/  ARTICLE I, ^ 8, READS IN PART AS FOLLOWS: 

"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 . . ." 

/4/  HOUSE RES. 76, 91ST CONG., 1ST SESS., 115 CONG. REC. 2784
(1969), AUTHORIZED THE COMMITTEE, "AS A WHOLE OR BY SUBCOMMITTEE . . .
TO CONDUCT A FULL AND COMPLETE INVESTIGATION" OF THE "ORGANIZATION,
MANAGEMENT, OPERATION, AND ADMINISTRATION OF ANY DEPARTMENT OR AGENCY,"
AND OF "ANY INDEPENDENT AGENCY OR INSTRUMENTALITY" OF GOVERNMENT IN
THE DISTRICT OF COLUMBIA. 

/5/  116 CONG. REC. 40311 (1970). 

/6/  H.R. REP. NO. 91 - 1681, P. 212 (1970). 

/7/  THE COURT NOTES, ANTE, AT 323, APPARENTLY IN ALLEVIATION OF ITS
CONCLUSION AS TO POSSIBLE LIABILITY, THAT A SPECIFIC STATUTORY GRANT OF
IMMUNITY TO THE PUBLIC PRINTER AND THE SUPERINTENDENT OF DOCUMENTS
RELIEVING THEM OF PERSONAL LIABILITY FOR THE DISTRIBUTION OF AN
UNPROTECTED DOCUMENT HAS NOT BEEN CONFERRED.  BUT IT IS NOT CLEAR HOW,
IF LIABILITY OTHERWISE EXISTS, SUCH A GRANT OF IMMUNITY WOULD SHIELD
THESE PUBLIC SERVANTS IN A CASE INVOLVING ALLEGED CONSITUTIONAL
VIOLATIONS.  THUS, THE COURT HAS PLACED THE PUBLIC PRINTER AND
SUPERINTENDENT OF DOCUMENTS IN THE UNTENABLE POSITON EITHER OF
ACCEPTING THE RISK OF PERSONAL LIABILITY, WHENEVER A CONGRESSIONAL
DOCUMENT OFFICIALLY IS PRINTED AND DISTRIBUTED, OR OF VIOLATING THE
SPECIFIC COMMAND OF A CONGRESSIONAL RESOLUTION ORDERING THE PRINTING
AND DISTRIBUTION. 

/8/  AN INTERESTING DILEMMA IS PRESENTED BY THE POSSIBILITY OF AN
INJUNCTION AGAINST DISTRIBUTION WHERE "OTHERWISE ACTIONABLE" MATERIAL
IS PRINTED IN THE CONGRESSIONAL RECORD.  THE COURT RECOGNIZES THE
EXISTENCE OF THIS PROBLEM AND RESERVES ITS RESOLUTION FOR ANOTHER DAY. 
ANTE, AT 325 N. 16.  THE CONGRESSIONAL RECORD, HOWEVER, RECEIVES WIDE
PUBLIC DISTRIBUTION ON A REGULAR BASIS AND IT IS NOT AN UNCOMMON
OCCURRENCE FOR ALL OR PART OF A COMMITTEE REPORT OR OTHER DOCUMENT TO
BE READ INTO THE RECORD BY A MEMBER OF CONGRESS.  IN LIGHT OF SEPARATE
PUBLICATION AS A COMMITTEE DOCUMENT, A COMMITTEE REPORT CONTAINING
POSSIBLY ACTIONABLE MATERIAL HEREAFTER WILL BE PRINTED IN THE RECORD IN
ORDER TO EFFECTUATE PUBLIC DISTRIBUTION.  IT APPEARS TO ME ALMOST
BEYOND QUESTION THAT AN INJUNCTION AGAINST THE DISTRIBUTION OF THE
CONGRESSIONAL RECORD IS CLEARLY PRECLUDED BY THE SPEECH OR DEBATE
CLAUSE AND BY THE CONSTITUTION'S ART. I, ^ 5, CL. 3, PROVIDING THAT
"(EACH HOUSE SHALL KEEP A JOURNAL OF ITS PROCEEDINGS, AND FROM TIME TO
TIME PUBLISH THE SAME, EXCEPTING SUCH PARTS AS MAY IN THEIR JUDGMENT
REQUIRE SECRECY." 

/9/  ONLY LAST TERM, IN UNITED STATES V. BREWSTER, 408 U.S. 501, 516
- 517 (1972), THE COURT EMPHASIZED THAT:  "IN ITS NARROWEST SCOPE, THE
(SPEECH OR DEBATE) CLAUSE IS A VERY LARGE, ALBEIT ESSENTIAL, GRANT OF
PRIVILEGE.  IT HAS ENABLED RECKLESS MEN TO SLANDER AND EVEN DESTORY
OTHERS WITH IMPUNITY, BUT THAT WAS THE CONSCIOUS CHOICE OF THE
FRAMERS. 

". . . THE AUTHORS OF OUR CONSITUTION WERE WELL AWARE OF THE HISTORY
OF BOTH THE NEED FOR THE PRIVILEGE AND THE ABUSES THAT COULD FLOW FROM
TOO SWEEPING SAFEGUARDS.  IN ORDER TO PRESERVE OTHER VALUES, THEY WROTE
THE PRIVILEGE SO THAT IT TOLERATES AND PROTECTS BEHAVIOR ON THE PART OF
MEMBERS NOT TOLERATED AND PROTECTED WHEN DONE BY OTHER CITIZENS, BUT
THE SHIELD DOES NOT EXTEND BEYOND WHAT IS NECESSARY TO PRESERVE THE
INTEGRITY OF THE LEGISLATIVE PROCESS." 

/10/  I DO NOT REACH THE QUESTION WHETHER THE WITHHOLDING OF
INFORMATION FROM THE PUBLIC WITH RESPECT TO MATTERS BEING CONSIDERED BY
ELECTED REPRESENTATIVES IN ANY WAY DIMINISHES PROTECTED FIRST AMENDMENT
VALUES. 

/11/  "THE PREMISE THAT COURTS MAY REFUSE TO ENFORCE LEGISLATION
THEY THINK UNCONSITUTIONAL DOES NOT SUPPORT THE CONCLUSION THAT THEY
MAY CENSOR CONGRESSIONAL LANGUAGE THEY THINK LIBELOUS.  WE HAVE NO MORE
AUTHORITY TO PREVENT CONGRESS, OR A COMMITTEE OR PUBLIC OFFICER ACTING
AT THE EXPRESS DIRECTION OF CONGRESS, FROM PUBLISHING A DOCUMENT THAN
TO PREVENT THEM FROM PUBLISHING THE CONGRESSIONAL RECORD.  IF IT
UNFORTUNATELY HAPPENS THAT A DOCUMENT.WHICH CONGRESS HAS ORDERED
PUBLISHED CONTAINS STATEMENTS THAT ARE ERRONEOUS AND DEFAMATORY, AND
ARE MADE WITHOUT ALLOWING THE PERSONS AFFECTED AN OPPORTUNITY TO BE
HEARD, THIS ADDS NOTHING TO OUR AUTHORITY.  ONLY CONGRESS CAN DEAL WITH
SUCH A PROBLEM."  METHODIST FEDERATION FOR SOCIAL ACTION V. EASTLAND,
141 F. SUPP. 729, 731 - 732 (DC 1956 (THREE-JUDGE COURT)). 

[[DOP 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, AND WITH WHOM MR. JUSTICE STEWART JOINS AS TO PART I,
CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN THE COURT'S HOLDING THAT THE RESPONDENT MEMBERS OF
CONGRESS AND THEIR COMMITTEE AIDES AND EMPLOYEES ARE IMMUNE UNDER THE
SPEECH OR DEBATE CLAUSE FOR PREPARATION OF THE COMMITTEE REPORT FOR
DISTRIBUTION WITHIN THE HALLS OF CONGRESS.  I DISSENT FROM THE COURT'S
HOLDING THAT MEMBERS OF CONGRESS MIGHT BE HELD LIABLE IF THEY WERE IN
FACT RESPONSIBLE FOR PUBLIC DISSEMINATION OF A COMMITTEE REPORT, AND
THAT THEREFORE THE PUBLIC PRINTER OR THE SUPERINTENDENT OF DOCUMENTS
MIGHT LIKEWISE BE LIABLE FOR SUCH DISTRIBUTION.  AND QUITE APART FROM
THE IMMUNITY WHICH I BELIEVE THE SPEECH OR DEBATE CLAUSE CONFERS UPON
CONGRESSIONALLY AUTHORIZED PUBLIC DISTRIBUTION OF COMMITTEE REPORTS, I
BELIEVE THAT THE PRINCIPLE OF SEPARATION OF POWERS ABSOLUTELY PROHIBITS
ANY FORM OF INJUNCTIVE RELIEF IN THE CIRUMSTANCES HERE PRESENTED. 

        I 

IN GRAVEL V. UNITED STATES, 408 U.S. 606 (1972), WE DECIDED THAT THE
SPEECH OR DEBATE CLAUSE OF THE CONSITUTION DID NOT PROTECT PRIVATE
REPUBLICATION OF A COMMITTEE REPORT, BUT LEFT OPEN THE QUESTION OF
WHETHER PUBLICATION AND PUBLIC DISTRIBUTION OF SUCH REPORTS AUTHORIZED
BY CONGRESS WOULD BE INCLUDED WITHIN THE PRIVILEGE.  ID., AT 626 N.
16.  WHILE THERE ARE INTIMATIONS IN TODAY'S OPINION THAT THE PRIVILEGE
DOES NOT COVER SUCH AUTHORIZED PUBLIC DISTRIBUTION, THE ULTIMATE
HOLDING IS APPARENTLY THAT THE DISTRICT COURT MUST TAKE EVIDENCE AND
DETERMINE FOR ITSELF WHETHER OR NOT SUCH PUBLICATION IN THIS CASE WAS
WITHIN THE "LEGITIMATE LEGISLATIVE NEEDS OF CONGRESS," ANTE, AT 324. 

WHILE THERE IS NO REASON FOR A RIGID, MECHANICAL APPLICATION OF THE
SPEECH OR DEBATE CLAUSE, THERE WOULD SEEM TO BE EQUALLY LITTLE REASON
FOR A COMPLETELY AD HOC, FACTUAL DETERMINATION IN EACH CASE OF PUBLIC
DISTRIBUTION AS TO WHETHER THAT DISTRIBUTION SERVED THE "LEGITIMATE
LEGISLATIVE NEEDS OF CONGRESS."  A SUPPOSED PRIVILEGE AGAINST BEING
HELD JUDICIALLY ACCOUNTABLE FOR AN ACT IS OF VIRTUALLY NO USE TO THE
CLAIMANT OF THE PRIVILEGE IF IT MAY ONLY BE SUSTAINED AFTER ELABORATE
JUDICIAL INQUIRY INTO THE CIRCUMSTANCES UNDER WHICH THE ACT WAS
PERFORMED.  THIS DISPOSITION IS PARTICULARLY ANOMALOUS WHEN VIEWED IN
LIGHT OF OUR EARLIER VIEWS ON THE SCOPE OF THE CONSITUTIONAL PRIVILEGE
TO THE EFFECT THAT IT IS "NOT CONSONANT WITH OUR SCHEME OF GOVERNMENT
FOR A COURT TO INQUIRE INTO THE MOTIVES OF LEGISLATORS."  TENNEY V.
BRANDHOVE, 341 U.S. 367, 377 (1951).  A FACTUAL HEARING IN THE DISTRICT
COURT COULD SCARCELY AVOID INQUIRY INTO LEGISLATIVE MOTIVATION. 

PREVIOUS DECISIONS OF THIS COURT HAVE UPHELD THE IMMUNITY OF MEMBERS
WHENEVER THEY ARE "ACTING IN THE SPHERE OF LEGITIMATE LEGISLATIVE
ACTIVITY."  ID., AT 376.  IN KILBOURN V. THOMPSON, 103 U.S. 168 (1881),
WE HELD THAT THIS IMMUNITY EXTENDS TO EVERYTHING "GENERALLY DONE IN A
SESSION OF THE HOUSE BY ONE OF ITS MEMBERS IN RELATION TO THE BUSINESS
BEFORE IT."  ID., AT 204.  THIS RELATIVELY EXPANSIVE INTERPRETATION OF
THE SCOPE OF IMMUNITY HAS BEEN CONSISTENTLY REAFFIRMED.  UNITED STATES
V. JOHNSON, 383 U.S. 169, 179 (1966); UNITED STATES V. BREWSTER, 408
U.S. 501, 509 (1972). 

THE SUBJECT MATTER OF THE COMMITTEE REPORT HERE IN QUESTION WAS, AS
THE COURT NOTES, CONCEDEDLY WITHIN THE LEGISLATIVE AUTHORITY OF
CONGRESS.  CONGRESS HAS JURISDICTION OVER ALL MATTERS WITHIN THE
DISTRICT OF COLUMBIA, U.S. CONST., ART. I, ^ 8, CL. 17, AND THE
COMMITTEE WAS AUTHORIZED BY THE FULL HOUSE TO INVESTIGATE THE
DISTRICT'S PUBLIC SHCOOL SYSTEM.  H. RES. 76, 91ST CONG., 1ST SESS.,
115 CONG. REC. 2784 (1969).  AND WE HAVE HELD THAT WITH RESPECT TO THE
PRELIMINARY INQUIRIES, SUCH AS THE FINDINGS HERE REPRESENT, CONCERNING
POTENTIAL LEGISLATION, CONGRESS' POWER "IS AS PENETRATING AND FAR
REACHING AS THE POTENTIAL POWER TO ENACT AND APPROPRIATE UNDER THE
CONSTITUTION."  BARENBLATT V. UNITED STATES, 360 U.S. 109, 111 )1959). 

IN KILBOURN V. THOMPSON, SUPRA, AT 204, POWELL V. MCCORMACK, 395
U.S. 486, 502 (1969), AND GRAVEL V. UNITED STATES, 408 U.S., AT 624,
THE COURT HAS HELD THAT COMMITTEE REPORTS ARE ABSOLUTELY PRIVILEGED. 
IN NEITHER KILBOURN NOR POWELL WAS ANY DISTINCTION INTIMATED BETWEEN
INTERNAL AND PUBLIC DISTRIBUTION OF THE REPORTS.  AND WHILE THE
QUESTION WAS RESERVED IN GRAVEL, A COMPARISON OF THE FACTUAL BACKGROUND
SURROUNDING SENATOR GRAVEL'S READING INTO THE COMMITTEE RECORD THE
PENTAGON PAPERS, AND THE LIMITED PUBLICATION APPARENTLY UNDERTAKEN
HERE, INDICATES THAT THE DIFFERENCE IN ACTUAL EFFECT BETWEEN THE TWO IS
INDEED MINIMAL.  THE ONLY DIFFERENCE BETWEEN SENATOR GRAVEL'S WIDELY
PUBLICIZED READING, IN THE PRESENCE OF NUMEROUS SPECTATORS AND
JOURNALISTS, AND THE PUBLIC DISTRIBUTION OF THIS REPORT, IS THAT THE
FORMER WAS CONFINED WITHIN THE LEGISLATIVE HALLS.  BUT IT CAN SCARCELY
BE DOUBTED THAT INFORMATION PRODUCED AT A PUBLICLY ATTENDED COMMITTEE
HEARING WITHIN THE LEGISLATIVE HALLS MAY WELL AS A PRACTICAL MATTER
RECEIVE EVERY BIT AS MUCH PUBLIC CIRCULATION AS INFORMATION CONTAINED
IN A COMMITTEE REPORT WHICH IS ITSELF PUBLICLY CIRCULATED. 

TO THE EXTENT THAT PUBLIC PARTICIPATION IN A RELATIVELY OPEN
LEGISLATIVE PROCESS IS DESIRABLE, THE COURT'S HOLDING MAKES THE
MATERIALS BEARING ON THAT PROCESS LESS AVAILABLE THAN THEY MIGHT BE.
AN THE LIMITATION THUS JUDICIALLY IMPOSED IS SQUARELY CONTRARY TO THE
EXPRESSED INTENT OF CONGRESS.  THE COMMITTEE REPORT WAS ORDERED PRINTED
BY THE FULL HOUSE SITTING AS A COMMITTEE OF THE WHOLE HOUSE ON THE
STATE OF THE UNION.  116 CONG. REC. 40311 (DEC 8, 1970).  IT WAS
THEREAFTER PRINTED AND DISTRIBUTED BY THE GOVERNMENT PRINTING OFFICE
SOLELY IN ACCORDANCE WITH STATUTORY PROVISIONS.  44 U.S.C. ^^ 501,
701.  THESE PROVISIONS STATE SPECIFICALLY THAT THE PUBLIC PRINTER MAY
PRINT ONLY THE NUMBER OF COPIES DESIGNATED BY THE CONGRESS, SUCH
NUMBER, IN THE ABSENCE OF CONTRARY INDICATION, BEING THE "USUAL NUMBER"
ESTABLISHED BY STATUTE AS 1,682.  THESE COPIES MAY BE DISTRIBUTED ONLY
"AMONG THOSE ENTITLED TO RECEIVE THEM."  ^ 701(A).  THE DISTRIBUTEES
ARE SPECIFICALLY DESIGNATED IN THE STATUTE ITSELF.  ^ 701(C).  EXTRA
COPIES MAY BE PRINTED ONLY BY SIMPLE, CONCURRENT, OR JOINT RESOLUTION. 
^ 703.  THUS, EVERY ACTION TAKEN BY THE PUBLIC PRINTER AND THE
SUPERINTENDENT OF DOCUMENTS, SO FAR AS THIS RECORD INDICATES, WAS UNDER
THE DIRECTION OF CONGRESS.     I AGREE WITH THE COURT THAT THE PUBLIC
PRINTER AND THE SUPERINTENDENT OF DOCUMENTS HAVE NO "OFFICIAL IMMUNITY"
UNDER THE AUTHORITY OF BARR V. MATTEO, 360 U.S. 564 (1959).  THERE IS
NO IMMUNITY THERE WHEN OFFICIALS ARE SIMPLY CARRYING OUT THE DIRECTIVES
OF OFFICIALS IN THE OTHER BRANCHES OF GOVERNMENT, RATHER THAN
PERFORMING ANY DISCRETIONARY FUNCTION OF THEIR OWN.  BUT FOR THIS VERY
REASON, IF THE BODY DIRECTING THE PUBLICATION OR ITS MEMBERS WOULD
THEMSELVES BE IMMUNE FROM PUBLISHING AND DISTRIBUTING, THE PUBLIC
PRINTER AND THE SUPERINTENDENT SHOULD BE LIKEWISE IMMUNE.  I DO NOT
UNDERSTAND THE COURT TO HOLD OTHERWISE.  BECAUSE I WOULD HOLD THE
MEMBERS IMMUNE HAD THEY UNDERTAKEN THE PUBLIC DISTRIBUTION, I WOULD
LIKEWISE HOLD THE SUPERINTENDENT AND THE PUBLIC PRINTER IMMUNE FOR
HAVING DONE SO UNDER THE AUTHORITY OF THE RESOLUTION AND STATUTE.  THE
COURT'S CONTRARY CONCLUSION, PERHAPS INFLUENCED BY THE ALLEGATIONS OF
SERIOUS HARM TO THE PETITIONERS CONTAINED IN THEIR COMPLAINT, UNDULY
RESTRICTS THE PRIVILEGE.  THE SUSTAINING OF ANY CLAIM OF PRIVILEGE
INVARIABLY FORECLOSES FURTHER INQUIRY INTO A FACTUAL SITUATION WHICH,
IN THE ABSENCE OF PRIVILEGE, MIGHT WELL HAVE WARRANTED JUDICIAL
RELIEF.  THE REASON WHY THE LAW HAS NONETHELESS ESTABLISHED CATEGORIES
OF PRIVILEGE HAS NEVER BEEN BETTER SET FORTH THAN IN THE OPINION OF
JUDGE LEARNED HAND IN GREGOIRE V. BIDDLE, 177 F.2D 579, 581 (CA 2
1949): 

     "IT DOES INDEED GO WITHOUT SAYING THAT AN OFFICIAL, WHO IS IN

  FACT GUILTY OF USING HIS POWERS TO VENT HIS SPLEEN UPON OTHERS,

  OR FOR ANY OTHER PERSONAL MOTIVE NOT CONNECTED WITH THE PUBLIC

  GOOD, SHOULD NOT ESCAPE LIABILITY FOR THE INJURIES HE MAY SO

CAUSE; AND, IF IT WERE POSSIBLE IN PRACTICE TO CONFINE SUCH

  COMPLAINTS TO THE GUILTY, IT WOULD BE MONSTROUS TO DENY

  RECOVERY.  THE JUSTIFICATION FOR DOING SO IS THAT IT IS

  IMPOSSIBLE TO KNOW WHETHER THE CLAIM IS WELL FOUNDED UNTIL THE

  CASE HAS BEEN TRIED, AND THAT TO SUBMIT ALL OFFICIALS, THE

  INNOCENT AS WELL AS THE GUILTY, TO THE BURDEN OF A TRIAL AND TO

  THE INEVITABLE DANGER OF ITS OUTCOME, WOULD DAMPEN THE ARDOR OF

  ALL BUT THE MOST RESOLUTE, OR THE MOST IRRESPONSIBLE, IN THE

  UNFLINCHING DISCHARGE OF THEIR DUTIES.  AGAIN AND AGAIN THE

  PUBLIC INTEREST CALLS FOR ACTION WHICH MAY TURN OUT TO BE FOUNDED

  ON A MISTAKE, IN THE FACE OF WHICH AN OFFICIAL MAY LATER FIND

  HIMSELF HARD PUT TO IT TO SATISFY A JURY OF HIS GOOD FAITH. 

  THERE MUST INDEED BE MEANS OF PUNISHING PUBLIC OFFICERS WHO HAVE

  BEEN TRUANT TO THEIR DUTIES; BUT THAT IS QUITE ANOTHER MATTER

  FROM EXPOSING SUCH AS HAVE BEEN HONESTLY MISTAKEN TO SUIT BY

  ANYONE WHO HAS SUFFERED FROM THEIR ERRORS.  AS IS SO OFTEN THE

  CASE, THE ANSWER MUST BE FOUND IN A BALANCE BETWEEN THE EVILS

  INEVITABLE IN EITHER ALTERNATIVE.  IN THIS INSTANCE IT HAS BEEN

  THOUGHT IN IN THE END BETTER TO LEAVE UNREDRESSED THE WRONGS DONE

  BY DISHONEST OFFICERS THAN TO SUBJECT THOSE WHO TRY TO DO THEIR

  DUTY TO THE CONSTANT DREAD OF RETALIATION." 

        II 

ENTIRELY APART FROM THE IMMUNITY CONFERRED BY THE SPEECH OR DEBATE
CLAUSE ON THESE RESPONDENTS, I BELIEVE THAT THE PRINCIPLE OF SEPARATION
OF POWERS FORBIDS THE GRANTING OF INJUNCTIVE RELIEF BY THE DISTRICT
COURT IN A CASE SUCH AS THIS.  WE HAVE JURISDICTION TO REVIEW THE
COMPLETED ACTS OF THE LEGISLATIVE AND EXECUTIVE BRANCHES.  SEE, E. G.,
MARBURY -. MADISON, 1 CRANCH 137 (1803); YOUNGSTOWN SHEET & TUBE CO. V.
SAWYER, 343 U.S. 579 (1952); KILBOURN V. THOMPSON, SUPRA.  BUT THE
PROSPECT OF THE DISTRICT COURT'S ENJOINING A COMMITTEE OF CONGRESS,
WHICH, IN THE LEGISLATIVE SHEME OF THINGS, IS FOR ALL PRACTICAL
PURPOSES CONGRESS ITSELF, FROM UNDERTAKING TO PUBLICLY DISTRIBUTE ONE
OF ITS REPORTS IN THE MANNER THAT CONGRESS HAS BY STATUTE PRESCRIBED
THAT IT BE DISTRIBUTED, IS ONE THAT I BELIEVE WOULD HAVE BOGGLED THE
MINDS OF THE FRAMERS OF THE CONSTITUTION. 

IN MISSISSIPPI V. JOHNSON, 4 WALL.  475 (1867), AN ACTION WAS
BROUGHT SEEKING TO ENJOIN THE PRESIDENT FROM EXECUTING A DULY ENACTED
STATUTE ON THE GROUND THAT SUCH EXECUTIVE ACTION WOULD BE
UNCONSITUTIONAL.  THE COURT THERE EXPRESSED THE VIEW THAT I BELIEVE
SHOULD CONTROL THE AVAILABILITY OF THE INJUNCTIVE RELIEF HERE: 

"THE CONGRESS IS THE LEGISLATIVE DEPARTMENT OF THE GOVERNMENT;

  THE PRESIDENT IS THE EXECUTIVE DEPARTMENT.  NEITHER CAN BE

  RESTRAINED IN ITS ACTION BY THE JUDICIAL DEPARTMENT; THOUGH THE

  ACTS OF BOTH, WHEN PERFORMED, ARE, IN PROPER CASES, SUBJECT TO

  ITS COGNIZANCE."  ID., AT 500. 

IN KILBOURN V. THOMPSON, SUPRA, THE COURT REVIEWED THE ARREST AND
CONFINEMENT OF A PRIVATE CITIZEN BY THE SERGEANT AT ARMS OF THE HOUSE
OF REPRESENTATIVES.  IN WATKINS V. UNITED STATES, 354 U.S. 178 (1957),
THE COURT REVIEWED THE SCOPE OF THE INVESTIGATORY POWERS OF CONGRESS
WHEN THE EXECUTIVE HAD PROSECUTED A RECALCITRANT WITNESS AND SOUGHT A
JUDICIAL FORUM FOR THE PURPOSE OF IMPOSING CRIMINAL SANCTIONS ON HIM. 
NEITHER OF THESE CASES COMES CLOSE TO HAVING THE MISCHIEVOUS
POSSIBILITIES OF CENSORHIP BEING IMPOSED BY ONE BRANCH OF THE
GOVERNMENT UPON THE OTHER AS DOES THIS ONE. 

IN NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713 (1971), THIS
COURT HELD THAT PRIOR RESTRAINT COMES BEFORE IT BEARING A HEAVY
BURDEN.  ID., AT 714.  WHATEVER MAY BE THE DIFFERENCE IN THE
CONSITUTIONAL POSTURE OF THE TWO SITUATIONS, ON THE ISSUE OF INJUNCTIVE
RELIEF, WHICH IS NOTHING IF NOT A FORM OF PRIOR RESTRAINT, A
CONGRESSMAN SHOULD STAND IN NO WORSE POSITION IN THE FEDERAL COURTS
THAN DOES A PRIVATE PUBLISHER.  CF. HURD V. HODGE, 334 U.S. 24, 34 - 35
(1948).  PURELY AS A MATTER OF REGULATING THE EXERCISE OF FEDERAL
EQUITABLE JURISDICTION IN THE LIGHT OF THE PRINCIPLE OF SEPARATION OF
POWERS, I WOULD FORECLOSE THE AVAILABILITY OF INJUNCTIVE RELIEF AGAINST
THESE RESPONDENTS. 

MICHAEL J. VALDER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS JEAN CAMPER CAHN. 

FRED M. VINSON, JR., AND WILLIAM C. CRAMER ARGUED THE CAUSE FOR THE
LEGISLATIVE RESPONDENTS.  WITH THEM ON THE BRIEF WERE ROBERT S. ERDAHL,
JAMES S. RUBIN, RICHARD M. HABER, BENTON L. BECKER, AND WALTER C.
DEVAUGHN.  DAVID P. SUTTON ARGUED THE CAUSE FOR THE DISTRICT OF
COLUMBIA RESPONDENTS.  WITH HIM ON THE BRIEF WERE C. FRANCIS MURPHY AND
RICHARD W. BARTON. 
..END :





UNITED STATES V. BISHOP, 412 U.S. 346 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT 

     NO. 71 - 1698.  ARGUED JANUARY 16, 1973 -- DECIDED MAY 29,

  1973; 455 F.2D 612, REVERSED AND REMANDED. 


    RESPONDENT WAS CONVICTED OF VIOLATING 26 U.S.C. - 7206(1),

  MAKES IT A FELONY WHEN ONE "(WILLFULLY MAKES AND SUBSCRIBES ANY

  RETURN . . . WHICH HE DOES NOT BELIEVE TO BE TRUE AND CORRECT AS

  TO EVERY MATERIAL MATTER," AFTER THE DISTRICT COURT REFUSED A

  LESSER-INCLUDED-OFFENSE JURY CHARGE UNDER ^ 7207, WHICH MAKES IT

  A MISDEMEANOR WHEN ONE "WILLFULLY DELIVERS OR DISCLOSES" TO THE

  INTERNAL REVENUE SERVICE ANY RETURN OR DOCUMENT "KNOWN BY HIM TO

  BE FRAUDULENT OR TO BE FALSE AS TO ANY MATERIAL MATTER."  THE

 COURT OF APPEALS REVERSED ON THE GROUND THAT "WILLFULLY" AS USED

  IN ^ 7206 IMPLIED AN EVIL MOTIVE AND BAD FAITH, BUT THE SAME WORD

  AS USED IN ^7207 REQUIRED ONLY A SHOWING OF UNREASONABLE,

  CAPRICIOUS, OR CARELESS DISREGARD FOR THE TRUTH.  HELD:  THE WORD

  "WILLFULLY" HAS THE SAME MEANING IN ^^ 7206(1) AND 7207,

  CONNOTING THE VOLUNTARY, INTENTIONAL VIOLATION OF A KNOWN LEGAL

  DUTY, AND THE DISTINCTION BETWEEN THE STATUTES IS FOUND IN THE

  ADDITIONAL MISCONDUCT THAT IS ESSENTIAL TO THE VIOLATION OF THE

  FELONY PROVISION; HENCE, THE DISTRICT COURT PROPERLY REFUSED THE

  REQUESTED LESSER-INCLUDED-OFFENSE INSTRUCTION BASED ON

 RESPONDENT'S ERRONEOUS CONTENTION THAT THE WORD "WILLFULLY" IN

  THE MISDEMEANOR STATUTE IMPLIED LESS SCIENTER THAN THE SAME WORD

  IN THE FELONY STATUTE.  PP. 350 - 361. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, STEWART, WHITE, MARSHALL, POWELL, AND REHNQUIST, JJ.,
JOINED.  DOUGLAS, J., FILED A DISSENTING STATEMENT, POST, P. 362. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

[[HC347'(ORIGINAL DOCUMENT PAGE 347)' 

CHAPTER 75, SUBCHAPTER A, OF THE INTERNAL REVENUE CODE OF 1954, AS
AMENDED, 26 U.S.C. ^^ 7201 - 7241, IS CONCERNED WITH TAX CRIMES. 
ATTEMPTS TO EVADE OR DEFEAT TAX, TO FAILURES TO ACT, AND TO FRAUD, ALL
INCLUDE THE WORD "WILLFULLY" IN THEIR RESPECTIVE CONTEXTS. 
SPECIFICALLY, ^ 7206 IS A FELONY STATUTE AND READS: 

"^ 7206.  FRAUD AND FALSE STATEMENTS. 

     "ANY PERSON WHO -- 

    "(1) DECLARATION UNDER PENALTIES OF PERJURY. 

"WILLFULLY MAKES AND SUBSCRIBES ANY RETURN, STATEMENT, OR OTHER

  DOCUMENT, WHICH CONTAINS OR IS VERIFIED BY A WRITTEN DECLARATION

  THAT IT IS MADE UNDER THE PENALTIES OF PERJURY, AND WHICH HE DOES

  NOT BELIEVE TO BE TRUE AND CORRECT AS TO EVERY MATERIAL MATTER .

  . .

        .  .          .          . 

"SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION THEREOF, SHALL BE
FINED NOT MORE THAN $5,000, OR IMPRISONED NOT MORE THAN 3 YEARS, OR
BOTH, TOGETHER WITH THE COSTS OF PROSECUTION."  SECTION 7207 IS A
MISDEMEANOR STATUTE /1/  AND READS: 

"7207.  FRAUDULENT RETURNS, STATEMENTS, OR OTHER DOCUMENTS. 

     "ANY PERSON WHO WILLFULLY DELIVERS OR DISCLOSES TO THE

  SECRETARY OR HIS DELEGATE ANY LIST, RETURN, ACCOUNT, STATEMENT,

  OR OTHER DOCUMENT, KNOWN BY HIM TO BE FRAUDULENT OR TO BE FALSE

  AS TO ANY MATERIAL MATTER, SHALL BE FINED NOT MORE THAN $1,000,

  OR IMPRISONED NOT MORE THAN 1 YEAR, OR BOTH." 

[[HC348'(ORIGINAL DOCUMENT PAGE 348)' 

THIS CASE PRESENTS THE ISSUE OF THE MEANING OF THE CRITICAL WORD
"WILLFULLY" AS IT IS EMPLOYED IN THESE TWO SUCCESSIVE STATUTES.  IS ITS
MEANING THE SAME IN EACH, OR IS THE WILLFULNESS SPECIFIED BY THE
MISDEMEANOR STATUTE, ^ 7207, OF SOMEWHAT LESS DEGREE THAN THE FELONY
WILLFULNESS SPECIFIED BY ^ 7206? 

        I 

RESPONDENT, CECIL J. BISHOP, WAS CONVICTED BY A JURY ON ALL THREE
COUNTS OF AN INDICTMENT CHARGING HIM WITH FELONY VIOLATIONS OF ^
7206(1) WITH RESPECT TO HIS FEDERAL INCOME TAX RETURNS FOR THE CALENDAR
YEARS 1963, 1964, AND 1965.  THE COURT OF APPEALS, HOLDING THAT A
LESSER-INCLUDED-OFFENSE INSTRUCTION DIRECTED TO THE MISDEMEANOR
STATUTE, ^ 7207, WAS IMPROPERLY REFUSED BY THE TRIAL JUDGE, REVERSED
THE JUDGMENT OF THE DISTRICT COURT AND REMANDED THE CASE FOR A NEW
TRIAL.  455 F.2D 612 (CA9 1972).  SINCE THE MEANING OF "WILLFULLY," AS
USED IN THE TAX CRIME STATUTES, HAS DIVIDED THE CIRCUITS, /2/  WE
GRANTED CERTIORARI.  409 U.S. 841 (1972). 

WE CONCLUDE THAT IT WAS PROPER AND CORRECT FOR THE DISTRICT COURT TO
REFUSE THE LESSER-INCLUDED-OFFENSE INSTRUCTION. 

[[HC349'(ORIGINAL DOCUMENT PAGE 349)'  IN OUR VIEW, THE WORD
"WILLFULLY" HAS THE SAME MEANING IN BOTH STATUTES.  CONSEQUENTLY, WE
REVERSE AND REMAND SO THAT THE COURT OF APPEALS MAY NOW PROCEED TO
CONSIDER THE ADDITIONAL ISSUES THAT COURT FOUND IT UNNECESSARY TO
REACH. 

        II 

MR. BISHOP IS A LAWYER WHO HAS PRACTICED HIS PROFESSION IN
SACRAMENTO, CALIFORNIA, SINCE 1951.  DURING THAT PERIOD, HE OWNED AN
INTEREST IN A WALNUT RANCH HE AND HIS FATHER OPERATED.  IN 1960 HIS
SECRETARY, LOUISE, MARRIED HIS FATHER.  THE FATHER DIED, AND THEREAFTER
RESPONDENT'S STEPMOTHER MANAGED THE RANCH. 

RESPONDENT PERIODICALLY SENT CHECKS TO LOUISE.  THESE WERE USED TO
RUN THE RANCH, TO PAY PRINCIPAL ON LOANS, AND TO MAKE IMPROVEMENTS. 

LOUISE MAINTAINED A RECORD OF RANCH EXPENDITURES AND SUBMITTED AN
ITEMIZED LIST OF THESE DISBURSEMENTS TO RESPONDENT AT THE END OF EACH
CALENDAR YEAR.  IN HIS 1963 RETURN RESPONDENT ASSERTED AS BUSINESS
DEDUCTIONS ALL AMOUNTS PAID TO LOUISE AND, IN ADDITION, ALL THE
EXPENSES LOUISE LISTED.  THIS NECESSARILY RESULTED IN A DOUBLE
DEDUCTION FOR ALL RANCH EXPENDITURES IN 1963.  MOREOVER, SOME OF THESE
EXPENDITURES WERE FOR REPAYMENT OF LOANS AND FOR OTHER PERSONAL ITEMS
THAT DID NOT QUALIFY AS INCOME TAX DEDUCTIONS.  IN HIS 1964 AND 1965
RETURNS RESPONDENT SIMILARLY INCLUDED NONDEDUCTIBLE AMOUNTS AMONG THE
RANCH FIGURES THAT WERE DEDUCTED. 

THE AGGREGATE AMOUNT OF IMPROPER DEDUCTIONS TAKEN BY RESPONDENT FOR
THE THREE TAXABLE YEARS EXCEEDED $45,000. 

[[HC350'(ORIGINAL DOCUMENT PAGE 350)'  HE ENJOYED AGGREGATE GROSS
INCOME FOR THOSE YEARS OF ABOUT $70,000. 

THE INCORRECTNESS OF THE RETURNS AS FILED FOR THE THREE YEARS WAS
NOT DISPUTED AT TRIAL.  TRANSCRIPT OF TRIAL 869 - 872, 1148.  NEITHER
IS IT DISPUTED HERE.  BRIEF FOR RESPONDENT 4. 

        III 

"(WILLFULLY MAKES AND SUBSCRIBES ANY RETURN," UNDER PENALTIES OF
PERJURY, "WHICH HE DOES NOT BELIEVE TO BE TRUE AND CORRECT AS TO EVERY
MATERIAL MATTER."  RESPONDENT BASED HIS DEFENSE AT TRIAL ON THE GROUND
THAT HE WAS NOT AWARE OF THE DOUBLE DEDUCTIONS ASSERTED IN 1963 OR OF
THE IMPROPER DEDUCTIONS TAKEN IN THE THREE TAXABLE YEARS.  HE CLAIMED
THAT HIS LAW OFFICE SECRETARY PREPARED THE RETURN SCHEDULES FROM HIS
RECORDS AND FROM THE INFORMATION FURNISHED BY LOUISE; HE MERELY FAILED
TO CHECK THE RETURNS FOR ACCURACY. 

RESPONDENT REQUESTED LESSER-INCLUDED-OFFENSE INSTRUCTIONS BASED ON
THE MISDEMEANOR STATUTE, ^ 7207.  THIS TAX MISDEMEANOR IS COMMITTED BY
ONE "WHO WILLFULLY DELIVERS OR DISCLOSES" TO THE INTERNAL REVENUE
SERVICE ANY RETURN OR DOCUMENT "KNOWN BY HIM TO BE FRAUDULENT OR TO BE
FALSE AS TO ANY MATERIAL MATTER."  RESPONDENT ARGUED THAT THE WORD
"WILLFULLY" IN THE MISDEMEANOR STATUTE SHOULD BE CONSTRUED TO REQUIRE
LESS SCIENTER THAN THE SAME WORD IN THE FELONY STATUTE.  APP. 28.  WITH
THE STATE OF RESPONDENT'S GUILTY KNOWLEDGE IN DISPUTE, HIS PROPOSED
INSTRUCTIONS WOULD HAVE ALLOWED THE JURY TO CHOOSE BETWEEN A
MISDEMEANOR BASED ON CAPRICE OR CARELESS DISREGARD AND A FELONY
REQUIRING EVIL PURPOSE.  THE TRIAL JUDGE DECLINED TO GIVE THE REQUESTED
INSTRUCTIONS AND, INSTEAD, GAVE AN INSTRUCTION ONLY ON THE FELONY,
REQUIRING A FINDING BY THE JURY THAT THE DEFENDANT INTENDED "WITH EVIL
MOTIVE OR BAD PURPOSE EITHER TO DISOBEY OR TO DISREGARD THE LAW." 

[[HC351'(ORIGINAL DOCUMENT PAGE 351)'  APP. 24. 

AFTER THE GUILTY VERDICT ON ALL COUNTS WAS RETURNED, RESPONDENT WAS
SENTENCED TO TWO YEARS' IMPRISONMENT ON EACH ACOUNT, THE SENTENCES TO
RUN CONCURRENTLY.  THE COURT, HOWEVER, SUSPENDED ALL BUT 90 DAYS OF
EACH SENTENCE AND PLACED RESPONDENT ON PROBATION FOR FIVE YEARS ON
CONDITION THAT HE PAY A FINE OF $5,000.  APP. 31. 

        IV 

THE COURT OF APPEALS RELIED UPON AND FOLLOWED, 455 F.2D, AT 614, A
SERIES OF ITS OWN CASES, /3/  PARTICULARLY ABDUL V. UNITED STATES, 254
F.2D 292 (1958), ENUNCIATING THE PROPOSITION THAT THE WORD "WILLFULLY"
HAS A MEANING IN TAX FELONY STATUTES THAT IS MORE STRINGENT THAN ITS
MEANING IN TAX MISDEMEANOR STATUTES.  /4/  OUR EXAMINATION OF THESE
NINTH CIRCUIT PRECEDENTS IN THE LIGHT OF THIS COURT'S DECISIONS LEADS
US TO CONCLUDE THAT THE COURT OF APPEALS'  OPINION CANNOT BE SUSTAINED
BY THIS ASSERTED DISTINCTION BETWEEN ^ 7206(1) AND ^ 7207. 

A. THE NINTH CIRCUIT RULE APPEARS TO HAVE BEEN EVOLVED FROM LANGUAGE
IN THIS COURT'S OPINION IN SPIES V. UNITED STATES, 317 U.S. 492
(1943).  IN SPIES THE DEFENDANT REQUESTED AN INSTRUCTION TO THE EFFECT
THAT AN AFFIRMATIVE ACT WAS NECESSARY TO CONSTITUTE A WILLFUL ATTEMPT
TO EVADE OR DEFEAT A TAX, WITHIN THE MEANING OF ^ 145(B) OF THE REVENUE
ACT OF 1936, 49 STAT. 1703.  THE TRIAL COURT REFUESED THE REQUEST. 

[[HC352'(ORIGINAL DOCUMENT PAGE 352)'  THE SECOND CIRCUIT AFFIRMED. 
THIS COURT REVERSED.  WE WERE CONCERNED IN SPIES WITH A FELONY STATUTE,
^ 145(B), APPLYING TO ONE "WHO WILLFULLY ATTEMPTS IN ANY MANNER TO
EVADE OR DEFEAT ANY TAX," AND WITH A COMPANION MISDEMEANOR STATUE, ^
145(A), APPLYING TO ONE WHO "WILLFULLY FAILS TO PAY SUCH TAX, MAKE SUCH
RETURN, KEEP SUCH RECORDS, OR SUPPLY SUCH INFORMATION, AT THE TIME OR
TIMES REQUIRED BY LAW OR REGULATIONS."  THESE STATUTES WERE THE
PREDECESSORS OF THE CURRENT ^^ 7201 AND 7203, RESPECTIVELY, OF THE 1954
CODE.  IN DISTINGUISHING BETWEEN THE TWO OFFENSES, THE COURT SAID: 

"THE DIFFERENCE BETWEEN WILLFUL FAILURE TO PAY A TAX WHEN DUE,

  WHICH IS MADE A MISDEMEANOR, AND WILLFUL FAILURE TO A TAX TO

  DEFEAT AND EVADE ONE, WHICH IS MADE A FELONY, IS NOT EASY TO

  DETECT OR DEFINE.  BOTH MUST BE WILLFUL AND WILLFUL, AS WE HAVE

  SAID, IS A WORD OF MANY MEANINGS, ITS CONSTRUCTION OFTEN BEING

  INFLUENCED BY ITS CONTEXT.  UNITED STATES V. MURDOCK, 290 U.S.

  389.  IT MAY WELL MEAN SOMETHING MORE AS APPLIED TO NONPAYMENT OF

  A TAX THAN WHEN APPLIED TO FAILURE TO MAKE A RETURN.  MERE

  VOLUNTARY AND PURPOSEFUL, AS DISTINGUISHED FROM ACCIDENTAL,

  OMISSION TO MAKE A TIMELY RETURN MIGHT MEET THE TEST OF

  WILLFULNESS.  BUT IN VIEW OF OUR TRADITIONAL AVERSION TO

  IMPRISONMENT FOR DEBT, WE WOULD NOT WITHOUT THE CLEAREST

  MANIFESTATION OF CONGRESSIONAL INTENT ASSUME THAT MERE KNOWING

  AND INTENTIONAL DEFAULT IN PAYMENT OF A TAX, WHERE THERE HAD BEEN

  NO WILLFUL FAILURE TO DISCLOSE THE LIABILITY, IS INTENDED TO

  CONSTITUTE A CRIMINAL OFFENSE OF ANY DEGREEE.  WE WOULD EXPECT

  WILLFULNESS IN SUCH A CASE TO INCLUDE SOME ELEMENT OF EVIL MOTIVE

  AND WANT OF JUSTIFICATION IN VIEW OF ALL THE FINANACIAL

  CIRCUMSTANCES OF THE TAXPAYER. 

      "HAD ^ 145(A) NOT INCLUDED WILLFUL FAILURE TO PAY A TAX, IT

  WOULD HAVE DEFINED AS MISDEMEANORS GENERALLY A FAILURE TO OBSERVE

  STATUTORY DUTIES TO MAKE TIMELY RETURNS, KEEP RECORDS, OR SUPPLY

  INFORMATION -- DUTIES IMPOSED TO FACILITATE ADMINISTRATION OF THE

  ACT EVEN IF, BECAUSE OF INSUFFICIENT NET INCOME, THERE WERE NO

  DUTY TO PAY A TAX. 

[[HC353'(ORIGINAL DOCUMENT PAGE 353)'

  IT WOULD THEN BE A PERMISSIBLE AND PERHAPS AN APPROPRIATE
CONSTRUCTION OF ^ 145(B) THAT IT

  MADE FELONIES OF THE SAME WILLFUL OMISSIONS WHEN THERE WAS THE
ADDED ELEMENT OF DUTY TO PAY A

TAX.  THE DEFINITION OF SUCH NONPAYMENT AS A MISDEMEANOR, WE THINK,
ARGUES STRONGLY AGAINST

  SUCH AN INTERPRETATION."  317 U.S., AT 497 - 498. 

IN ABDUL THE COURT CONSIDERED AN APPEAL BY A TAXPAYER CONVICTED OF
TAX MISDEMEANORS (^ 2707(B) OF THE 1939 CODE AND ^ 7203 OF THE 1954
(CODE) BASED ON FAILURE TO FILE BUT ACQUITTED OF TAX FELONIES (^
2707(C) OF THE 1939 CODE AND ^ 7202 OF THE 1954 CODE) BASED ON FAILURE
TO ACCOUNT FOR AND PAY WITHHOLDING TAXES.  THE DEFENSE WAS INABILITY TO
PAY.  THE TRIAL JUDGE INSTRUCTED THE JURY THAT THE TERM "WILFUL" IN THE
MISDEMEANOR COUNTS MEANT, AMONG OTHER THINGS, "CAPRICIOUSLY OR WITH A
CARELESS DISREGARD WHETHER ONE HAS THE RIGHT SO TO ACT,"  WHEREAS THE
SAME WORD IN THE FELONY COUNTS MEANT "WITH KNOWLEDGE OF ONE'S
OBLIGATION TO PAY THE TAXES DUE AND WITH INTENT TO DEFRAUD THE
GOVERNMENT OF THAT TAX BY ANY AFFIRMATIVE CONDUCT."  254 F.2D, AT 294. 
RELYING ON SPIES, THE COURT OF APPEALS APPROVED THESE INSTRUCTIONS AND
CONCLUDED THAT 

"THE WORD 'WILFUL' AS USED IN THE MISDEMEANOR STATUTE MEANS
SOMETHING LESS WHEN APPLIES TO A FAILURE TO MAKE A RETURN THAN AS
APPLIED TO A FELONY NON-PAYMENT OF A TAX.  THIS BEING TRUE, THEN THE
WORDS USED IN THE INSTRUCTION DEFINING 'WILFUL' AS RELATES TO A
MISDEMEANOR ADEQUATELY AND CLEARLY POINT UP THAT DIFFERENCE."  IBID.
BECAUSE OF AN ERROR IN THE CROSS-EXAMINATION OF ABDUL, HIS CONVICTION
WAS REVERSED. 

[[HC354'(ORIGINAL DOCUMENT PAGE 354)'  ON RETRIAL, HE WAS AGAIN
CONVICTED.  HE APPEALED, AND THE JUDGMENT WAS AFFIRMED.  ABDUL V.
UNITED STATES, 278 F.2D 234 (CA9 1960).  WHEN ABDUL SOUGHT CERTIORARI,
THE SOLICITOR GENERAL CONCEDED THAT THE SENTENCE UNDER ONE OF THE
COUNTS COULD NOT STAND AND UNDERTOOK TO SAY THAT THE GOVERNMENT WOULD
PRESENT TO THE DISTRICT COURT A MOTION FOR CORRECTION OF THE SENTENCE. 
CERTIORARI, ACCORDINGLY, WAS DENIED.  TWO JUSTICES WOULD HAVE GRANTED
THE WRIT TO REVIEW THE CORRECTNESS OF THE CHARGE "REGARDING THE
REQUIREMENT OF WILLFULNESS."  364 U.S. 832 (1960). 

IN THE PRESENT CASE THE COURT OF APPEALS CONTINUED THIS ABDUL
DISTINCTION BETWEEN WILLFULNESS IN TAX MISDEMEANOR CHARGES AND
WILLFULNESS IN TAX FELONY CHARGES.  SECTION 7207, IT WAS SAID, REQUIRES
ONLY A SHOWING OF "UNREASONABLE, CAPRICIOUS, OR CARELESS DISREGARD FOR
THE TRUTH OR FALSITY OF INCOME TAX RETURNS FILED,"  WHEREAS ^ 7206 (1)
F.2D, AT 615.  THE LEVEL OF WILLFULNESS, THUS, WOULD CREATE A DISPUTED
FACTUAL ELEMENT THAT MADE APPROPRIATE A LESSER-INCLUDED-OFFENSE
INSTRUCTION. 

B. THE DECISIONS OF THIS COURT DO NOT SUPPORT THE HOLDING IN ABDUL,
AND IMPLICITLY THEY REJECT THE APPROACH TAKEN BY THE COURT OF APPEALS. 
IN SPIES, THE COURT SPECULATED, 317 U.S., AT 495 - 498, THAT CONGRESS
COULD HAVE DISTINGUISHED BETWEEN THE REGULATORY ASPECTS OF THE TAX
SYSTEM, WHICH CALL FOR COMPLIANCE REGARDLESS OF FINANCIAL STATUS, AND
THE REVENUE-COLLECTING ASPECTS, WHICH MAY PLACE DEMANDS ON A TAXPAYER
HE CANNOT MEET.  SINCE THE ANTECEDENT OF ^ 7203 (AS DOES THAT SECTION
ITSELF TODAY) PUNISHED BOTH FAILURE TO FILE AND FAILURE TO PAY AS
MISDEMEANORS, THE COURT CONCLUDED THAT CONGRESS HAD NOT DRAWN THE LINE
BETWEEN FELONIES AND MISDEMEANORS ON THE BASIS OF DISTINCTIONS BETWEEN
THE SYSTEM'S REGULATORY ASPECTS AND ITS REVENUE-COLLECTING ASPECTS. 
THE RELIANCE IN ABDUL ON THAT HYPOTHETICAL STATUTORY SCHEME, DISCUSSED
BY THIS COURT IN SPIES BUT FOUND NOT IN LINE WITH WHAT CONGRESS HAD
ACTUALLY DONE, WAS MISPLACED. 

[[HC355'(ORIGINAL DOCUMENT PAGE 355)'  UTILIZING THE UNSUPPORTED
ABDUL DISTINCTION AS A FOUNDATION, THE COURT OF APPEALS CONSTRUCTED THE
FURTHER GENERAL DISTINCTION BETWEEN TAX FELONIES AND TAX MISDEMEANORS,
A DISTINCTION ALSO INCONSISTENT WITH PRIOR DECISIONS OF THIS COURT. 

IN BERRA V. UNITED STATES, 351 U.S. 131 (1956), A DEFENDANT WAS
CONVICTED OF VIOLATING THE ANTECEDENT OF ^ 7201, NAMELY, ^ 145(B) OF
THE 1939 CODE, A FELONY STATUTE IDENTICAL, FOR PRESENT PURPOSES, WITH
THE SECTION OF THE SAME NUMBER IN THE REVENUE ACT OF 1936 AT ISSUE IN
SPIES.  THE DEFENDANT CLAIMED THAT HE WAS ENTITLED TO A LESSER-INCLUDED
OFFENSE INSTRUCTION BASED ON ^ 3616(A) OF THE 1939 CODE, THE
ANTENCEDENT OF ^ 7207.  THE COURT REJECTED THIS CONTENTION, CONCLUDING
THAT THE TWO SECTIONS OF THE 1939 CODE THEN "COVERED PRECISELY THE SAME
GROUND."  351 U.S., AT 134.  IMPLICIT IN THIS WAS THE CONCLUSION THAT
THE LEVEL OF INTENT REQUIRED FOR TAX MISDEMEANORS WAS NOT AUTOMATICALLY
LOWER THAN THE LEVEL OF INTENT REQUIRED FOR TAX FELONIES. 

ALTHOUGH THE MISDEMEANOR STATUTE, ^ 3616(A), PROFFERED BY THE
DEFENDANT IN BERRA DID NOT CONTAIN THE WORD "WILLFULLY," THE BERRA
FACTS WERE PRESENTED TO THE COURT AGAIN IN SANSONE V. UNITED STATES,
380 U.S. 343 (1965), WHEN THE MISDEMEANOR STATUTES THERE IN ISSUE, ^^
7207 AND 7203 OF THE 1954 CODE, BOTH CONTAINED THE WORD "WILLFULLY." 
/5/  IN SANSONE THE COURT REJECTED THE ARGUMENT THAT A SET OF FACTS
COULD EXIST THAT WOULD SATISFY THE WILLFULNESS ELEMENT IN THE ^ 7207
MISDEMEANOR BUT NOT IN THE ^ 7201 FELONY: 

[[HC356'(ORIGINAL DOCUMENT PAGE 356)' 

"GIVEN PETITIONER'S MATERIAL MISSTATEMENT WHICH RESULTED IN A TAX
DEFICIENCY, IF, AS THE JURY OBVIOUSLY FOUND, PETITIONER'S ACT WAS
WILLFUL IN THE SENSE THAT HE KNEW THAT HE SHOULD HAVE REPORTED MORE
INCOME THAN HE DID FOR THE YEAR 1957, HE WAS GUILTY OF VIOLATING BOTH
^^ 7201 AND 7207.  IF HIS ACTION WAS NOT WILLFUL, HE WAS GUILTY OF
VIOLATING NEITHER."  380 U.S., AT 353.  THE SAME ANALYSIS WAS APPLIED
TO THE REQUESTED LESSER-INCLUDED-OFFENSE INSTRUCTION FOR ^ 7203.  ID.,
AT 352.  THE CLEAR IMPLICATION OF THE DECISION IN SANSONE IS THAT THE
WORD "WILLFULLY" POSSESSES THE SAME MEANING IN ^^ 7201, 7203, AND
7207.  SANSONE THUS FORECLOSED THE ARGUMENT THAT THE WORD "WILLFULLY"
WAS TO BE GIVEN ONE MEANING IN THE TAX FELONY STATUTES AND ANOTHER
MEANING IN THE TAX MISDEMEANOR STATUTES. 

THE THESIS RELIED UPON BY THE COURT OF APPEALS, THEREFORE, WAS
INCORRECT. 

     V 

IT WOULD BE POSSIBLE, OF COURSE, THAT THE WORD "WILLFULLY" WAS
INTENDED BY CONGRESS TO HAVE A MEANING IN ^ 7206 (1) DIFFERENT FROM ITS
MEANING IN ^ 7207, AND WE TURN NOW TO THAT POSSIBILITY. 

WE CONTINUE TO RECOGNIZE THAT CONTEXT IS IMPORTANT IN THE QUEST FOR
THE WORD'S MEANING.  SEE UNITED STATES V. MURDOCK, 290 U.S. 389, 394 -
395 (1933).  HERE, AS IN SPIES, THE "LEGISLATIVE HISTORY OF THE
WE MUST FIND THE ANSWER FROM THE (SECTIONS THEMSELVES) AND (THEIR)
CONTEXT IN THE REVENUE LAWS."  /6/  317 U.S., AT 495. 

[[HC357'(ORIGINAL DOCUMENT PAGE 357)'  WE CONSIDER FIRST, THEN, THE

A. RESPONDENT ARGUES THAT BOTH ^^ 7206 (1) AND 7207 APPLY TO A
FRAUDULENT "RETURN" AND COVER THE SAME GROUND IF THE WORD "WILLFULLY"
HAS THE SAME MEANING IN BOTH SECTIONS.  SINCE "IT WOULD BE UNUSUAL AND
WE WOULD NOT READILY ASSUME THAT CONGRESS BY THE FELONY . . . MEANT NO
MORE THAN THE SAME DERELICTIONS IF HAS JUST DEFINED . . . AS A
MISDEMEANOR," 317 U.S., AT 497, RESPONDENT CONCLUDES THAT CONGRESS MUST
HAVE INTENDED TO REQUIRE A MORE WILLFUL VIOLATION FOR THE FELONY THAN
FOR THE MISDEMEANOR. 

THE CRITICAL DIFFICULTY FOR RESPONDENT IS THAT THE TWO SECTIONS HAVE
SUBSTANTIALLY DIFFERENT EXPRESS TERMS.  THE MOST OBVIOUS DIFFERENCE IS
THAT ^ 7206 (1) APPLIES ONLY IF THE DOCUMENT "CONTAINS OR IS VERIFIED
BY A WRITTEN DECLARATION THAT IT IS MADE UNDER THE PENALTIES OF
PERJURY."  NO EQUIVALENT REQUIREMENTS IS PRESENT IN ^ 7207.  RESPONDENT
RECOGNIZES THIS BUT THEN RELIES ON THE PRESENCE OF PERJURY DECLARATIONS
ON ALL FEDERAL INCOME TAX RETURNS, A FACT THAT EFFECTIVELY EQUALIZES
THE SECTIONS WHERE A FEDERAL TAX RETURN IS AT ISSUE.  SEE 26 U.S.C. ^
6065 (A).  /7/ 

THIS APPROACH, HOWEVER, IS NOT PERSUASIVE FOR TWO REASONS.  FIRST,
THE SECRETARY OR HIS DELEGATE HAS THE POWER UNDER ^ 6065(A) TO PROVIDE
THAT NO PERJURY DECLARATION IS REQUIRED.  IF HE DOES SO PROVIDE, THEN ^
7207 IMMEDIATELY BECOMES OPERATIVE IN THE AREA THERETOFORE COVERED BY ^
7206 (1). 

[[HC358'(ORIGINAL DOCUMENT PAGE 358)'  SECOND, THE TERM "RETURN" IS
NOT NECESSARILY LIMITED TO A FEDERAL INCOME TAX RETURN.  A STATE OR
OTHER NONFEDERAL RETURN COULD BE INTENDED AND MIGHT NOT CONTAIN A
PERJURY WARNING.  IF THIS TYPE OF RETURN WERE SUBMITTED IN SUPPORT OF A
FEDERAL RETURN, OR IN THE COURSE OF A TAX AUDIT, ^ 7207 COULD APPLY
EVEN IF ^ 7206 (1) COULD NOT. 

THERE ARE OTHER DISTINCTIONS.  THE FELONY APPLIES TO A DOCUMENT THAT
A TAXPAYER "(WILLFULLY MAKES AND SUBSCRIBES . . . AND WHICH HE DOES NOT
BELIEVE TO BE TRUE AND CORRECT AS TO EVERY MATERIAL MATTER,"  WHEREAS
THE MISDEMEANOR APPLIES TO A DOCUMENT THAT A TAXPAYER "WILLFULLY
DELIVERS OR DISCLOSES TO THE SECRETARY OR HIS DELEGATE . . . KNOWN BY
HIM . . . TO BE FALSE AS TO ANY MATERIAL MATTER."  IN THE FELONY, THEN,
THE TAXPAYER MUST VERIFY THE RETURN OR DOCUMENT IN WRITING, AND HE IS
LIABLE IF HE DOES NOT AFFIRMATIVELY BELIEVE THAT THE MATERIAL
STATEMENTS ARE TRUE.  FOR THE MISDEMEANOR, HOWEVER, A DOCUMENT PREPARED
BY ANOTHER COULD GIVE RISE TO LIABILITY ON THE PART OF THE TAXPAYER IF
HE DELIVERED OR DISCLOSED IT TO THE SERVICE; ADDITIONAL PROTECTION IS
GIVEN TO THE TAXPAYER IN THIS SITUATION BECAUSE THE DOCUMENT MUST BE
KNOWN BY HIM TO BE FRAUDULENT OR TO BE FALSE. 

THESE DIFFERENCES IN THE RESPECTIVE APPLICATIONS OF 7206 (1) AND
7207 PROVIDE SOLID EVIDENCE THAT CONGRESS DISTINGUISHED THE STATUTES IN
WAYS THAT DO NOT TURN ON THE MEANING OF THE WORD "WILLFULLY."  JUDGE
HASTIE, IN ANALYZING THIS COURT'S HOLDING IN SPIES, APPROPRIATELY
DESCRIBED THIS DISTINCTION AS FOLLOWS: 

"HOWEVER, THIS DISTINCTION IS FOUND IN THE ADDITIONAL MISCONDUCT
WHICH IS ESSENTIAL TO THE VIOLATION OF THE FELONY STATUTE . . . AND NOT
IN THE QUALITY OF WILLFULNESS WHICH CHARACTERIZES THE WRONGDOING." 
UNITED STATES V. VITIELLO, 363 F.2D 240, 243 (CA3 1966). 

[[HC359'(ORIGINAL DOCUMENT PAGE 359)'  THUS THE WORD "WILLFULLY" MAY
HAVE A UNIFORM MEANING IN THE SEVERAL STATUTES WITHOUT RENDERING ANY
ONE OF THEM SURPLUSAGE.  WE NEXT TURN TO CONTEXT. 

B. THE HIERARCHY OF TAX OFFENSES SET FORTH IN ^^ 7201 - 7207,
INCLUSIVE, UTILIZES THE MENTAL STATE OF THE OFFENDER AS A GUIDE IN
ESTABLISHING THE PENALTY.  SECTION 7201, RELATING TO ATTEMPTS TO EVADE
OR DEFEAT TAX, HAS BEEN DESCRIBED AND RECOGNIZED BY THE COURT AS THE
"CLIMAX OF THIS VARIETY OF SANCTIONS" AND AS THE "CAPSTONE OF A SYSTEM
OF SANCTIONS WHICH SINGLY OR IN COMBINATION WERE CALCULATED TO INDUCE
PROMPT AND FORTHRIGHT FULFILLMENT OF EVERY DUTY UNDER THE INCOME TAX
LAW AND TO PROVIDE A PENALTY SUITABLE TO EVERY DEGREE OF DELINQUENCY." 
SPIES, 317 U.S., AT 497; SANSOME, 380 U.S., AT 350 - 351.  THE ACTOR'S
MENTAL STATE IS DESCRIBED BOTH BY THE REQUIREMENT THAT ACTS BE DONE
"WILLFULLY" AND BY THE DESIGNATION OF CERTAIN EXPRESS ELEMENTS OF THE
OFFENSES.  IN ^ 7201, FOR EXAMPLE, THE COURT HAS HELD THAT, BY
REQUIRING AN ATTEMPT TO EVADE, "CONGRESS INTENDED SOME WILLFUL
COMMISSION IN ADDITION TO THE WILLFUL OMISSIONS THAT MAKE UP THE LIST
OF MISDEMEANORS."  SPIES, 317 U.S., AT 499.  SIMILARLY, IN ^ 7207, THE
GOVERNMENT MUST SHOW THAT THE DOCUMENT WAS KNOWN BY THE TAXPAYER TO BE
FRAUDULENT OR TO BE FALSE AS TO A MATERIAL MATTER. 

ALL THESE OFFENSES, EXCEPT TWO SUBSECTIONS OF ^ 7206, VIZ.,
SUBSECTIONS (3) AND (4), REQUIRE THAT ACTS BE DONE "WILLFULLY." 
ALTHOUGH THE DESCRIBED STATES OF MIND MIGHT BE INCLUDED IN THE NORMAL
MEANING OF THE WORD "WILLFULLY," THE PRESENCE OF BOTH AN EXPRESS
DESIGNATION AND THE SIMULTANEOUS REQUIREMENT THAT A VIOLATION BE
COMMITTED "WILLFULLY"  IS STRONG EVIDENCE THAT CONGRESS USED THE WORD
"WILLFULLY" TO DESCRIBE A CONSTANT RATHER THAN A VARIABLE IN THE TAX
PENATLY FORMULA.  /8/ 

[[HC360'(ORIGINAL DOCUMENT PAGE 360)' 

THE COURT, IN FACT, HAS RECOGNIZED THAT THE WORD "WILLFULLY" IN
THESE STATUTES GENERALLY CONNOTES A VOLUNTARY, INTENTIONAL VIOLATION OF
A KNOWN LEGAL DUTY.  IT HAS FORMULATED THE REQUIREMENT OF WILLFULNESS
AS "BAD FAITH OR EVIL INTENT," MURDOCK, 290 U.S., AT 398, OR "EVIL
MOTIVE AND WANT OF JUSTIFICATION IN VIEW OF ALL THE FINANCIAL
CIRCUMSTANCES OF THE TAXPAYER," SPIES, 317 U.S., AT 498, OR KNOWLEDGE
THAT THE TAXPAYER "SHOULD HAVE REPORTED MORE INCOME THAN HE DID." 
SANSONE, 380 U.S., AT 358.  SEE JAMES V. UNITED STATES, 366 U.S. 213,
221 (1961); MCCARTHY V. UNITED STATES, 394 U.S. 459, 471 (1969). 

THIS LONGSTANDING INTERPRETATION OF THE PURPOSE OF THE RECURRING
WORD "WILLFULLY" PROMOTES COHERENCE IN THE GROUP OF TAX CRIMES.  IN OUR
COMPLEX TAX SYSTEM, UNCERTAINTY OFTEN ARISES EVEN AMONG TAXPAYERS WHO
EARNESTLY WISH TO FOLLOW THE LAW.  THE COURT HAS SAID "IT IS NOT THE
PURPOSE OF THE LAW TO PENALIZE FRANK DIFFERENCE OF OPINION OR INNOCENT
ERRORS MADE DESPITE THE EXERCISE OF REASONABLE CARE. 
[[HC361'(ORIGINAL DOCUMENT PAGE 361)'  SPIES, 317 U.S., AT 496. 
DEGREES OF NEGLIGENCE GIVE RISE IN THE TAX SYSTEM TO CIVIL PENALTIES. 
THE REQUIREMENT OF AN OFFENSE COMMITTED "WILLFULLY" IS NOT MET,
THEREFORE, IF A TAXPAYER HAS RELIED IN GOOD FAITH ON A PRIOR DECISION
OF THIS COURT.  JAMES V. UNITED STATES, SUPRA, 366 U.S., AT 221 - 222. 
CF. LAMBERT V. CALIFORNIA, 355 U.S. 225 (1957).  THE COURT'S CONSISTENT
INTERPRETATION OF THE WORD "WILLFULLY" TO REQUIRE AN ELEMENT OF MENS
REA IMPLEMENTS THE PERVASIVE INTENT OF CONGRESS TO CONSTRUCT PENALTIES
THAT SEPARATE THE PURPOSEFUL TAX VIOLATOR FROM THE WELLMEANING, BUT
EASILY CONFUSED, MASS OF TAXPAYERS. 

UNTIL CONGRESS SPEAKS OTHERWISE, WE THEREFORE SHALL CONTINUE TO
REQUIRE, IN BOTH TAX FELONIES AND TAX MISDEMEANORS THAT MUST BE DONE
"WILLFULLY," THE BAD PURPOSE OR EVIL MOTIVE DESCRIBED IN MURDOCK,
SUPRA.  WE HOLD, CONSEQUENTLY, THAT THE WORD "WILLFULLY" HAS THE SAME
MEANING IN ^ 7207 THAT IT HAS IN ^ 7206 (1).  SINCE THE ONLY ISSUE IN
DISPUTE IN THIS CASE CENTERED ON WILLFULNESS, IT FOLLOWS THAT A
CONVICTION OF THE MISDEMEANOR WOULD CLEARLY SUPPORT A CONVICTION FOR
THE FELONY.  /9/  UNDER THESE CIRCUMSTANCES A LESSER-INCLUDED-OFFENSE
INSTRUCTION WAS NOT REQUIRED OR PROPER, FOR IN THE FEDERAL SYSTEM IT IS
NOT THE FUNCTION OF THE JURY TO SET THE PENALTY.  BERRA V. UNITED
STATES, 351 U.S., AT 134 - 135. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS. 

              IT IS SO ORDERED. 

/1/  TITLE 18 U.S.C. ^ 1 DEFINES FELONY AND MISDEMEANOR:  "^ 1. 
OFFENSES CLASSIFIED.  "NOTWITHSTANDING ANY ACT OF CONGRESS TO THE
CONTRARY: 

"(1) ANY OFFENSE PUNISHABLE BY DEATH OR IMPRISONMENT FOR A TERM
EXCEEDING ONE YEAR IS A FELONY. 

"(2) ANY OTHER OFFENSE IS A MISDEMEANOR." 

/2/  COMPARE UNITED STATES V. VITIELLO, 363 F.2D 240, 243 (CA 1966)
(^^ 7201 AND 7203), AND HANER V. UNITED STATES, 315 F.2D 792, 794 (CA5
1963) (^7203), WHERE THE NINTH CIRCUIT ANALYSIS WAS REJECTED, WITH
UNITED STATES V. FAHEY, 411 F.2D 1213 (CA9), CERT. DENIED, 396 U.S. 957
(1969) (^7203); MARTIN V. UNITED STATES, 317 F.2D 753 (CA9 1963)
(^7203); ABDUL V. UNITED STATES, 254 F.2D 292 (CA9 1958) (^^ 2707(B)
AND (C) OF THE 1939 CODE AND ^^ 7202 AND 7203 OF THE 1954 CODE).  SEE
ALSO JANKO V. UNITED STATES, 281 F.2D 156, 166 - 167 (CA8 1960), REV'D
ON CONFESSION OF ERROR BY THE SOLICITOR GENERAL, 366 U.S. 716 (1961)
(^^ 7201 AND 7207); LUMETTA V. UNITED STATES, 362 F.2D 644, 646 N. 3
(CA81966) (^^ 7201 AND 7203); ESCOBAR V. UNITED STATES, 388 F.2D 661
(CA 5 1967), CERT. DENIED, 390 U.S. 1024 (1968) (^^ 7206 (1) AND
7207).  OTHER INCONSISTENCIES IN INTERPRETING THE WORD "WILLFULLY" HAVE
COMPOUNDED THE CONFUSION.  SEE N. 8, INFRA.  CF. UNITED STATES V.
LACHMANN, 469 F.2D 1043 (CA 1 1972) (^^ 7201 AND 7203). 

/3/  UNITED STATES V. HASELTINE, 419 F.2D 579, 581 (1970) (^^ 7201
AND 7203); UNITED STATES V. FAHEY, N. 2, SUPRA; EUSTIS V. UNITED
STATES, 409 F.2D 228 (1969) (^ 7203); EDWARDS V. UNITED STATES, 375
F.2D 862 (1967) (^^ 7201, 7203, AND 7206 (2)); MARTIN V. UNITED STATES,
N. 2, SUPRA; ABDUL V. UNITED STATES, N. 2, SUPRA. 

/4/  ONE POSSIBLE RESULT OF THIS DISTINCTION, OF COURSE, IS THAT THE
GOVERNMENT'S BURDEN IN A MISDEMEANOR CASE COULD BE LESS THAN IN A
FELONY CASE. 

/5/  THE APPLICABILITY OF ^ 3616(A) OF THE 1939 CODE TO INCOME TAX
RETURNS WAS NOT CONTESTED IN BERRA V. UNITED STATES, 351 U.S. 131, 133
)1956), BUT THE COURT SOON HELD THAT THAT STATUTE "DID NOT APPLY TO
EVASION OF THE INCOME TAX."  ACHILLI V. UNITED STATES, 353 U.S. 373,
379 (1957).  IN SANSONE, HOWEVER, STATUTORY REVISIONS EFFECTED BY THE
ENACTMENT OF THE 1954 CODE WERE HELD TO MAKE ^ 7207 APPLICABLE TO
INCOME TAX VIOLATIONS.  SANSONE V. UNITED STATES, 380 U.S. 343, 347 -
349 (1965). 

/6/  SEE H. R. REP. NO. 1337, 83D CONG., 2D SESS., A425 (1954); S.
REP. NO. 1622, 83D CONG., 2D SESS., 602 - 603 (1954).  THE PREDECESSOR
TO ^ 7206 (1) WAS ^ 3809(A) OF THE 1939 CODE.  THE ANTECEDENT TO ^ 7207
WAS, AS WE HAVE NOTED ABOVE, ^ 3616(A) OF THE 1939 CODE.  SEE SANSONE,
380 U.S., AT 347. 

/7/  "^ 6065.  VERIFICATION OF RETURNS. 

"(A) PENALTIES OF PERJURY. 

"EXCEPT AS OTHERWISE PROVIDED BY THE SECRETARY OR HIS DELEGATE, ANY
RETURN, DECLARATION, STATEMENT, OR OTHER DOCUMENT REQUIRED TO BE MADE
UNDER ANY PROVISION OF THE INTERNAL REVENUE LAWS OR REGULATIONS SHALL
CONTAIN OR BE VERIFIED BY A WRITTEN DECLARATION THAT IT IS MADE UNDER
THE PENALTIES OF PERJURY."  SEE ALSO TREAS. REG. ^ 1.6065 - 1 (1972). 

/8/  SEMANTIC CONFUSION SOMETIMES HAS BEEN CREATED WHEN COURTS
DISCUSS THE EXPRESS REQUIREMENT OF AN "ATTEMPT TO EVADE" IN ^ 7201 AS
IF IT WERE IMPLICIT IN THE WORD "WILLFULLY" IN THAT STATUTE.  THIS TYPE
OF ANALYSIS PRODUCES LANGUAGE SUGGESTING THAT "WILLFULLY" IN ^ 7201 HAS
A DIFFERENT MEANING FROM THE SAME TERM IN ^7203.  SEE UNITED STATES V.
MING, 466 F.2D 1000, 1004 (CA7), CERT. DENIED, 409 U.S. 915 (1972) (^^
7201 AND 7203); UNITED STATES V. MATOSKY, 421 F.2D 410 (CA7), CERT.
DENIED, 398 U.S. 904 (1970) (^ 7203); UNITED STATES V. HASELTINE, 419
F.2D, AT 581; EDWARDS V. UNITED STATES, 375 F.2D, AT 867; UNITED STATES
V. SCHIPANI, 362 F.2D 825, 831 (CA2), CERT. DENIED, 385 U.S. 934
(1966).  THIS COURT MAY BE SOMEWHAT RESPONSIBLE FOR THIS IMPRECISION
BECAUSE A SIMILAR ANALYSIS WAS EMPLOYED IN SPIES V. UNITED STATES, 317
U.S. 492, 497 - 499 (1943).  GREATER CLARITY MIGHT WELL RESULT FROM AN
ANALYSIS THAT DISTINGUISHES THE EXPRESS ELEMENTS, SUCH AS AN "ATTEMPT
TO EVADE,"  PRESCRIBED BY ^ 7201, FROM THE UNIFORM REQUIREMENT OF
WILLFULNESS. 

/9/  THE GOVERNMENT HAS ARGUED THAT THE MISDEMEANOR OF ^ 7207 COULD
NEVER BE A LESSER INCLUDED OFFENSE IN ^ 7206 (1) BECAUSE THE
MISDEMEANOR REQUIRES THAT THE ACTOR HAVE KNOWLEDGE OF THE FALSITY. 
THIS IS SAID TO CREATE AN ADDITIONAL ELEMENT IN THE MISDEMEANOR, NOT
PRESENT IN THE FELONY, SO THE MISDEMEANOR IS NOT "NECESSARILY INCLUDED"
IN THE FELONY, WITHIN THE MEANING OF FED. RULE CRIM. PROC. 31(C).  OUR
CONCLUSION THAT THE WORD "WILLFULLY" HAS THE SAME MEANING IN BOTH
STATUTES MAKES IT UNNECESSARY TO REACH THIS CONTENTION. 

[[DOP 

MR. JUSTICE DOUGLAS WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS FOR THE NINTH CIRCUIT ON THE OPINION WRITTEN FOR THAT COURT BY
JUDGE POWELL.  455 F.2D 612. 

RICHARD B. STONE ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
CRAMPTON, DEPUTY SOLICITOR GENERAL LACOVARA, KEITH A. JONES, AND JOHN
P. BURKE. 

J. RICHARD JOHNSTON ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE NEIL F. HORTON AND ROBERT H. SOLOMON. 
..END :





HALL V. COLE 412 U.S. 1 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 72 - 630.  ARGUED MARCH 21, 1973--DECIDED MAY 21, 1973;

462 F.2D 777, AFFIRMED. 


    RESPONDENT, EXPELLED FROM HIS UNION FOR DELIBERATE AND

  MALICIOUS VILIFICATION OF UNION MANAGEMENT FOLLOWING HIS

  RESOLUTIONS UNSUCCESSFULLY CONDEMNING THAT MANAGEMENT'S ALLEGED

  UNDEMOCRATIC ACTIONS AND SHORTSIGHTED POLICIES, REGAINED HIS

  UNION MEMBERSHIP IN A SUIT UNDER SEC. 102 OF THE LABOR-MANAGEMENT

  REPORTING AND DISCLOSURE ACT (LMRDA) AND WAS AWARDED $5,500 IN

  LEGAL FEES.  THE COURT OF APPEALS AFFIRMED.  HELD: 

     1.  RESPONDENT'S SUIT UNDER ^ 102 OF THE LMRDA VINDICATED NOT

  ONLY HIS OWN RIGHTS OF FREE SPEECH GUARANTEED BY THE STATUTE BUT

  FURTHERED THE INTERESTS OF THE UNION AND ITS MEMBERS AS WELL.  AS

A RESULT, THE AWARD TO RESPONDENT OF ATTORNEYS' FEES UNDER THESE

  CIRCUMSTANCES COMPORTED WITH THE TRIAL COURT'S INHERENT EQUITABLE

  POWER OF MAKING SUCH AN AWARD WHENEVER "OVERRIDING CONSIDERATIONS

  INDICATE THE NEED FOR SUCH A RECOVERY."  MILLS V. ELECTRIC

  AUTO-LITE CO., 396 U.S. 375, 391 - 392.  PP. 4 - 9. 

     2.  THE ALLOWANCE OF COUNSEL FEES TO THE SUCCESSFUL PLAINTIFF

  IN A SUIT BROUGHT UNDER ^ 102 IS NOT PRECLUDED BY THAT STATUTORY

  PROVISION AND, INDEED, IS SUPPORTED BY THE LEGISLATIVE HISTORY OF

  THE LMRDA.  PP. 9 - 14. 

     3.  UNDER ALL THE FACTS OF THE CASE, THE DISTRICT COURT DID
NOT

  ABUSE ITS DISCRETION IN AWARDING COUNSEL FEES TO RESPONDENT.  PP.

  14 - 15. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, STEWART, BLACKMUN, AND POWELL, JJ., JOINED.  WHITE,
J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, J., JOINED, POST,
P. 16.  MARSHALL, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US TO CONSIDER THE PROPRIETY OF AN AWARD OF
COUNSEL FEES TO A SUCCESSFUL PLAINTIFF IN A SUIT BROUGHT UNDER ^ 102 OF
THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT.
523, 29 U.S.C. ^ 412.  /1/  ON AUGUST 6, 1962, AT A REGULAR MEETING OF
THE MEMBERSHIP OF PETITIONER SEAFARERS INTERNATIONAL UNION OF NORTH
AMERICA--ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, RESPONDENT
INTRODUCED A SET OF RESOLUTIONS ALLEGING VARIOUS INSTANCES OF
UNDEMOCRATIC ACTIONS AND SHORTSIGHTED POLICIES ON THE PART OF UNION
OFFICERS.  THE RESOLUTIONS WERE DEFEATED AND, ON NOVEMBER 26, 1962,
RESPONDENT WAS EXPELLED FROM THE UNION ON THE GROUND THAT HIS
PRESENTATION OF THE RESOLUTIONS VIOLATED A UNION RULE PROSCRIBING
"DELIBERATE OR MALICIOUS VILIFICATION WITH REGARD TO THE EXECUTION OR
THE DUTIES OF ANY OFFICE OR JOB."  AFTER EXHAUSTING HIS INTRA-UNION
REMEDIES, RESPONDENT FILED THIS SUIT UNDER ^ 102 OF THE LMRDA, CLAIMING
THAT HIS EXPULSION UNDER THESE CIRCUMSTANCES VIOLATED HIS RIGHT OF FREE
SPEECH AS SECURED BY ^ 101 (A)(2) OF THE ACT, 29 U.S.C. ^ 411 (A)(2). 
/2/ 

ON MAY 27, 1964, THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF NEW YORK ISSUED A TEMPORARY INJUNCTION RESTORING
RESPONDENT'S MEMBERSHIP IN THE UNION, AND THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  339 F. 2D 881 (1965).  SOME
FIVE YEARS LATER, THE CASE CAME ON FOR TRIAL AND THE DISTRICT COURT,
FINDING A VIOLATION OF RESPONDENT'S RIGHTS UNDER ^ 101 (A)(2), ORDERED
HIM PERMANENTLY REINSTATED TO MEMBERSHIP IN THE UNION AND, ALTHOUGH
DENYING RESPONDENT'S DAMAGES CLAIMS, /3/  GRANTED HIM COUNSEL FEES IN
THE SUM OF $5,500 AGAINST THE UNION.  THE COURT OF APPEALS AFFIRMED IN
ALL RESPECTS, 462 F. 2D 777 (1972).  WE GRANTED CERTIORARI LIMITED TO
THE QUESTIONS WHETHER (1) AN AWARD OF ATTORNEY'S FEES IS PERMISSIBLE
UNDER ^ 102 OF THE LMRDA, AND (2) IF SO, WHETHER SUCH AN AWARD UNDER
THE FACTS OF THIS CASE CONSTITUTED AN ABUSE OF THE DISTRICT COURT'S
DISCRETION.  409 U.S. 1074.  WE AFFIRM. 

        I 

ALTHOUGH THE TRADITIONAL AMERICAN /4/  RULE ORDINARILY DISFAVORS THE
ALLOWANCE OF ATTORNEYS' FEES IN THE ABSENCE OF STATUTORY /5/  OR
CONTRACTUAL AUTHORIZATION, /6/  FEDERAL COURTS, IN THE EXERCISE OF
THEIR EQUITABLE POWERS, MAY AWARD ATTORNEYS' FEES WHEN THE INTERESTS OF
JUSTICE SO REQUIRE.  INDEED, THE POWER TO AWARD SUCH FEES "IS PART OF
THE ORIGINAL AUTHORITY OF THE CHANCELLOR TO DO EQUITY IN A PARTICULAR
SITUATION," SPRAGUE V. TICONIC NATIONAL BANK, 307 U.S. 161, 166 (1939),
AND FEDERAL COURTS DO NOT HESITATE TO EXERCISE THIS INHERENT EQUITABLE
POWER WHENEVER "OVERRIDING CONSIDERATIONS INDICATE THE NEED FOR SUCH A
RECOVERY."  MILLS V. ELECTRIC AUTO-LITE CO., 396 U.S. 375, 391 - 392
(1970); SEE FLEISCHMANN DISTILLING CORP. V. MAIER BREWING CO., 386 U.S.
714, 718 (1967). 

THUS, IT IS UNQUESTIONED THAT A FEDERAL COURT MAY AWARD COUNSEL FEES
TO A SUCCESSFUL PARTY WHEN HIS OPPONENT HAS ACTED "IN BAD FAITH,
VEXATIOUSLY, WANTONLY, OR FOR OPPRESSIVE REASONS."  6 J. MOORE, FEDERAL
PRACTICE PARA. 54.77 (2), P. 1709 (2D ED. 1972); SEE, E. G., NEWMAN V.
PIGGIE PARK ENTERPRISES, INC., 390 U.S. 400, 402 N. 4 (1968); VAUGHAN
V. ATKINSON, 369 U.S. 527 (1962); BELL V. SCHOOL BD. OF POWHATAN
COUNTY, 321 F. 2D 494 (CA4 1963); ROLAX V. ATLANTIC COAST LINE R. CO.,
186 F. 2D 473 (CA4 1951).  IN THIS CLASS OF CASES, THE UNDERLYING
RATIONALE OF "FEE SHIFTING" IS, OF COURSE, PUNITIVE, AND THE ESSENTIAL
ELEMENT IN TRIGGERING THE AWARD OF FEES IS THEREFORE THE EXISTENCE OF
"BAD FAITH" ON THE PART OF THE UNSUCCESSFUL LITIGANT. 

ANOTHER ESTABLISHED EXCEPTION INVOLVES CASES IN WHICH THE PLAINTIFF'S
SUCCESSFUL LITIGATION CONFERS "A SUBSTANTIAL BENEFIT ON THE MEMBERS OF
AN ASCERTAINABLE CLASS, AND WHERE THE COURT'S JURISDICTION OVER THE
SUBJECT MATTER OF THE SUIT MAKES POSSIBLE AN AWARD THAT WILL OPERATE TO
SPREAD THE COSTS PROPORTIONATELY AMONG THEM."  MILLS V. ELECTRIC AUTO
LITE, SUPRA, AT 393 - 394.  /7/  "FEE SHIFTING" IS JUSTIFIED IN THESE
CASES, NOT BECAUSE OF ANY "BAD FAITH" OF THE DEFENDANT BUT, RATHER,
BECAUSE "TO ALLOW THE OTHERS TO OBTAIN FULL BENEFIT FROM THE
PLAINTIFF'S EFFORTS WITHOUT CONTRIBUTING EQUALLY TO THE LITIGATION
EXPENSES WOULD BE TO ENRICH THE OTHERS UNJUSTLY AT THE PLAINTIFF'S
EXPENSE."  ID., AT 392; SEE ALSO FLEISCHMANN DISTILLING CORP. V. MAIER
BREWING CO., SUPRA, AT 719; TRUSTEES V. GREENOUGH, 105 U.S. 527, 532
(1882).  THUS, IN MILLS V. ELECTRIC AUTO-LITE CO., SUPRA, WE APPROVED
AN AWARD OF ATTORNEYS' FEES TO SUCCESSFUL SHAREHOLDER PLAINTIFFS IN A
SUIT BROUGHT TO SET ASIDE A CORPORATE MERGER ACCOMPLISHED THROUGH THE
USE OF A MISLEADING PROXY STATEMENT IN VIOLATION OF ^ 14 (A) OF THE
SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 895, 15 U.S.C. ^ 78N (A).  IN
REACHING THIS RESULT, WE REASONED THAT, SINCE THE DISSEMINATION OF
MISLEADING PROXY SOLICITATIONS JEOPARDIZED IMPORTANT INTERESTS OF BOTH
THE CORPORATION AND "'THE STOCKHOLDERS AS A GROUP,'"  /8/  THE
SUCCESSFUL ENFORCEMENT OF THE STATUTORY POLICY NECESSARILY "RENDERED A
SUBSTANTIAL SERVICE TO THE CORPORATION AND ITS SHAREHOLDERS."  MILLS V.
ELECTRIC AUTO-LITE CO., SUPRA, AT 396.  UNDER THESE CIRCUMSTANCES,
REIMBURSEMENT OF THE PLAINTIFFS' ATTORNEYS' FEES OUT OF THE CORPORATE
TREASURY SIMPLY SHIFTED THE COSTS OF LITIGATION TO "THE CLASS THAT HAS
BENEFITED FROM THEM AND THAT WOULD HAVE HAD TO PAY THEM HAD IT BROUGHT
THE SUIT."  ID., AT 397. 

THE INSTANT CASE IS CLEARLY GOVERNED BY THIS ASPECT OF MILLS.  THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 WAS BASED, IN
PART, ON A CONGRESSIONAL FINDING "FROM RECENT INVESTIGATIONS IN THE
LABOR AND MANAGEMENT FIELDS, THAT THERE HAVE BEEN A NUMBER OF INSTANCES
OF BREACH OF TRUST, CORRUPTION, DISREGARD OF THE RIGHTS OF INDIVIDUAL
EMPLOYEES, AND OTHER FAILURES TO OBSERVE HIGH STANDARDS OF
RESPONSIBILITY AND ETHICAL CONDUCT . . . ."  29 U.S.C. ^ 401 (B).  IN
AN EFFORT TO ELIMINATE THESE ABUSES, CONGRESS RECOGNIZED THAT IT WAS
IMPERATIVE THAT ALL UNION MEMBERS BE GUARANTEED AT LEAST "MINIMUM
STANDARDS OF DEMOCRATIC PROCESS.  . . ."  /9/  THUS, TITLE I /10/  OF
THE LMRDA--THE "BILL OF RIGHTS OF MEMBERS OF LABOR ORGANIZATIONS"--WAS
SPECIFICALLY DESIGNED TO PROMOTE THE "FULL AND ACTIVE PARTICIPATION BY
THE RANK AND FILE IN THE AFFAIRS OF THE UNION,"  /11/  AND, AS THE
COURT OF APPEALS NOTED, THE RIGHTS ENUMERATED IN TITLE I /12/ WERE
DEEMED "VITAL TO THE INDEPENDENCE OF THE MEMBERSHIP AND THE EFFECTIVE
AND FAIR OPERATION OF THE UNION AS THE REPRESENTATIVE OF ITS
MEMBERSHIP."  462 F. 2D, AT 780.  SEE ALSO INTERNATIONAL ASSN. OF
MACHINISTS V. NIX, 415 F. 2D 212 (CA5 1969); SALZHANDLER V. CAPUTO, 316
F. 2D 445 (CA2 1963). 

VIEWED IN THIS CONTEXT, THERE CAN BE NO DOUBT THAT, BY VINDICATING
HIS OWN RIGHT OF FREE SPEECH GUARANTEED BY ^ 101 (A)(2) OF TITLE I OF
THE LMRDA, RESPONDENT NECESSARILY RENDERED A SUBSTANTIAL SERVICE TO HIS
UNION AS AN INSTITUTION AND TO ALL OF ITS MEMBERS.  WHEN A UNION MEMBER
IS DISCIPLINED FOR THE EXERCISE OF ANY OF THE RIGHTS PROTECTED BY TITLE
I, THE RIGHTS OF ALL MEMBERS OF THE UNION ARE THREATENED.  AND, BY
VINDICATING HIS OWN RIGHT, THE SUCCESSFUL LITIGANT DISPELS THE "CHILL"
CAST UPON THE RIGHTS OF OTHERS.  INDEED, TO THE EXTENT THAT SUCH
LAWSUITS CONTRIBUTE TO THE PRESERVATION OF UNION DEMOCRACY, THEY
FREQUENTLY PROVE BENEFICIAL "NOT ONLY IN THE IMMEDIATE IMPACT OF THE
RESULTS ACHIEVED BUT IN THEIR IMPLICATIONS FOR THE FUTURE CONDUCT OF
THE UNION'S AFFAIRS."  YABLONSKI V. UNITED MINE WORKERS OF AMERICA, 150
U.S. APP. D.C. 253, 260, 466 F. 2D 424, 431 (1972).  THUS, AS IN MILLS,
REIMBURSEMENT OF RESPONDENT'S ATTORNEYS' FEES OUT OF THE UNION TREASURY
/13/  SIMPLY SHIFTS THE COST OF LITIGATION TO "THE CLASS THAT HAS
BENEFITED FROM THEM AND THAT WOULD HAVE HAD TO PAY THEM HAD IT BROUGHT
THE SUIT."  MILLS V. ELECTRIC AUTO-LITE CO., SUPRA, AT 397.  SEE ALSO
YABLONSKI V. UNITED MINE WORKERS OF AMERICA, SUPRA; ROBINS V.
SCHONFELD, 326 F. SUPP. 525 (SDNY 1971); CEFALO V. INTERNATIONAL UNION
OF DISTRICT 50 UNITED MINE WORKERS, 311 F. SUPP. 946 (DC 1970); SANDS
V. ABELLI, 290 F. SUPP. 677 (SDNY 1968).  WE MUST THEREFORE CONCLUDE
THAT AN AWARD OF COUNSEL FEES TO A SUCCESSFUL PLAINTIFF IN AN ACTION
UNDER ^ 102 OF THE LMRDA FALLS SQUARELY WITHIN THE TRADITIONAL
EQUITABLE POWER OF FEDERAL COURTS TO AWARD SUCH FEES WHENEVER
"OVERRIDING CONSIDERATIONS INDICATE THE NEED FOR SUCH A RECOVERY." 
MILLS V. ELECTRIC AUTO-LITE CO., SUPRA, AT 391 - 392. 

        II 

THIS DOES NOT END OUR INQUIRY, HOWEVER, FOR EVEN WHERE "FREE
SHIFTING" WOULD BE APPROPRIATE AS A MATTER OF EQUITY, CONGRESS HAS THE
POWER TO CIRCUMSCRIBE SUCH RELIEF.  IN FLEISCHMANN DISTILLING CORP. V.
MAIER BREWING CO., SUPRA, FOR EXAMPLE, WE HALD THAT ^ 35 OF THE LANHAM
ACT, 60 STAT. 439, 15 U.S.C. ^ 1117, PRECLUDED AN AWARD OF ATTORNEYS'
FEES AS A SEPARATE ELEMENT OF RECOVERY IN A SUIT FOR DELIBERATE
INFRINGEMENT OF A TRADEMARK.  IN REACHING THAT RESULT, WE REASONED
THAT, SINCE ^ 35 "METICULOUSLY DETAILED THE REMEDIES AVAILABLE TO A
PLAINTIFF WHO PROVES THAT HIS VALID TRADEMARK HAS BEEN INFRINGED,"
CONGRESS MUST HAVE INTENDED THE EXPRESS REMEDIAL PROVISIONS OF ^ 35 "TO
MARK THE BOUNDARIES OF THE POWER TO AWARD MONETARY RELIEF IN CASES
ARISING UNDER THE ACT."  ID., AT 719, 721.  PETITIONERS CONTEND THAT
THIS REASONING DICTATES A SIMILAR CONCLUSION WITH RESPECT TO ^ 102 OF
THE LMRDA.  WE DO NOT AGREE.  UNLIKE ^ 35 OF THE LANHAM ACT, WHICH
SPECIFICALLY "PROVIDED NOT ONLY FOR INJUNCTIVE RELIEF, BUT ALSO FOR
COMPENSATORY RECOVERY MEASURED BY THE PROFITS THAT ACCRUED TO THE
DEFENDANT BY VIRTUE OF HIS INFRINGEMENT, THE COSTS OF THE ACTION, AND
DAMAGES WHICH MAY BE TREBLED,"  /14/  ^ 102 OF THE LMRDA BROADLY
AUTHORIZES THE COURTS TO GRANT "SUCH RELIEF (INCLUDING INJUNCTIONS) AS
MAY BE APPROPRIATE."  29 U.S.C. ^ 412.  THUS, ^ 102 DOES NOT
"METICULOUSLY DETAIL THE REMEDIES AVAILABLE TO A PLAINTIFF,"  AND WE
CANNOT FAIRLY INFER FROM THE LANGUAGE OF THAT PROVISION AN INTENT TO
DENY TO THE COURTS THE TRADITIONAL EQUITABLE POWER TO GRANT COUNSEL
FEES IN "APPROPRIATE" SITUATIONS. 

PETITIONERS ARGUE FURTHER, HOWEVER, THAT BECAUSE CONGRESS EXPRESSLY
AUTHORIZED THE RECOVERY OF COUNSEL FEES IN ^^ 201 (C) AND 501 (B) OF
THE LMRDA, 29 U.S.C. ^^ 431 (C), 501 (B), THE ABSENCE OF A SIMILAR
EXPRESS PROVISION IN ^ 102, INDICATES AN INTENT TO PRECLUDE "FEE
SHIFTING" IN SUITS BROUGHT UNDER THAT SECTION.  SECTIONS 201 (C) AND
501 (B), WHICH ARE NOT A PART OF TITLE I, DEAL ITH NARROWLY DEFINED
PROBLEMS UNDE THE ACT, AND SPECIFICALLY AUTHORIZE SUCH LIMITED REMEDIES
AS AN EXAMINATION OF THE UNION'S BOOKS AND RECORDS AND AN ACCOUNTING. 
/15/  BY CONTRAST, ^ 102 WAS PREMISED UPON THE FACT THAT TITLE I
LITIGATION NECESSARILY DEMANDS THAT REMEDIES "BE TAILORED TO FIT FACTS
AND CIRCUMSTANCES ADMITTING OF ALMOST INFINITE VARIETY,"  /16/  AND ^
102 WAS THEREFORE CAST AS A BROAD MANDATE TO THE COURTS TO FASHION
"APPROPRIATE" RELIEF.  INDEED, ANY ATTEMPT ON THE PART OF CONGRESS TO
SPELL OUT ALL OF THE REMEDIES AVAILABLE UNDER ^ 102 WOULD CREATE THE
"DANGER THAT THOSE (REMEDIES) NOT LISTED MIGHT BE PROSCRIBED WITH THE
RESULT THAT THE COURTS WOULD BE FETTERED IN THEIR EFFORTS TO 'GRANT
RELIEF ACCORDING TO THE NECESSITIES OF THE CASE.'"  GARTNER V. SOLONER,
384 F. 2D 348, 353 (CA3 1967).  SEE FLEISCHMANN DISTILLING CORP. V.
MAIER BREWING CO., SUPRA.  CONFRONTED WITH A VIRTUALLY IDENTICAL
SITUATION IN MILLS, WE EXPLAINED THAT THE INCLUSION IN CERTAIN SECTIONS
OF THE SECURITIES EXCHANGE ACT OF 1934 OF EXPRESS PROVISIONS FOR
RECOVERY OF ATTORNEYS' FEES "SHOULD NOT BE READ AS DENYING TO THE
COURTS THE POWER TO AWARD COUNSEL FEES IN SUITS UNDER OTHER SECTIONS OF
THE ACT WHEN CIRCUMSTANCES MAKE SUCH AN AWARD APPROPRIATE . . . ." 
MILLS V. ELECTRIC AUTO-LITE CO., SUPRA, AT 390 - 391.  THAT REASONING
IS EQUALLY PERSUASIVE TODAY.  /17/ 

FINALLY, PETITIONERS CALL OUR ATTENTION TO TWO ISOLATED COMMENTS IN
THE LEGISLATIVE HISTORY OF TITLE I--ONE BY SENATOR GOLDWATER IN HIS
TESTIMONY BEFORE A HOUSE COMMITTEE /18/  AND THE OTHER CONTAINED IN A
DISSENTING STATEMENT TO A HOUSE COMMITTEE REPORT /19/  --EXPRESSING THE
FEAR THAT, IN THE ABSENCE OF A SPECIFIC PROVISION FOR THE AWARD OF
COUNSEL FEES, SUCH RELIEF WOULD BE UNAVAILABLE IN SUITS BROUGHT UNDER ^
102.  ALTHOUGH THESE STATEMENTS PLAINLY INDICATE "A FEELING BY SOME
MEMBERS OF THE CONGRESS THAT IT WOULD HAVE BEEN DESIRABLE AND PRUDENT
TO SPELL OUT UNMISTAKABLY A RIGHT TO ATTORNEY'S FEES," THEY "HARDLY
AMOUNT TO A DEFINITIVE AND ABSOLUTE SETTING OF THE CONGRESSIONAL FACE
AGAINST THE GIVING OF SUCH INCIDENTAL RELIEF BY THE COURTS WHERE
COMPATIBLE WITH SOUND AND ESTABLISHED EQUITABLE PRINCIPLES."  YABLONSKI
V. UNITED MINE WORKERS OF AMERICA, 150 U.S. APP. D.C., AT 258, 466 F.
2D, AT 429.  SEE GARTNER V. SOLONER, 384 F. 2D, AT 352.  INDEED, BOTH
OF THESE COMMENTS EXPRESSLY FAVORED THE ALLOWANCE OF COUNSEL FEES IN
TITLE I LITIGATION, AND THERE IS NO SUGGESTION ANYWHERE IN THE
LEGISLATIVE HISTORY THAT EVEN A SINGLE MEMBER OF CONGRESS WAS OPPOSED
TO SUCH RELIEF OR DESIRED THE WORDS "SUCH RELIEF . . . AS MAY BE
APPROPRIATE" TO RESTRICT THE HISTORIC EQUITY POWERS OF THE FEDERAL
COURTS.  ON THE CONTRARY, THERE ARE NUMEROUS EXPRESSIONS BY SPONSORS
AND OTHER SUPPORTERS OF THE ACT INDICATING THAT ^ 102 WAS INTENDED TO
AFFORD THE COURTS "A WIDE LATITUDE TO GRANT RELIEF ACCORDING TO THE
NECESSITIES OF THE CASE,"  /20/  AND "TO GIVE SUCH RELIEF AS (THE
COURT) DEEMS EQUITABLE UNDER ALL THE CIRCUMSTANCES."  /21/ 
MOREOVER, THE AWARD OF ATTORNEYS' FEES UNDER ^ 102 IS CLEARLY CONSONANT
WITH CONGRESS' EXPRESS DESIRE TO ADOPT "LEGISLATION THAT WILL AFFORD
NECESSARY PROTECTION OF THE RIGHTS AND INTERESTS OF EMPLOYEES AND THE
PUBLIC GENERALLY . . . ."  29 U.S.C. ^ 401 (B).  AS THE COURT OF
APPEALS RECOGNIZED:     "NOT TO AWARD COUNSEL FEES IN CASES SUCH AS
THIS WOULD BE TANTAMOUNT TO REPEALING THE ACT ITSELF BY FRUSTRATING ITS
BASIC PURPOSE.  IT IS DIFFICULT FOR INDIVIDUAL MEMBERS OF LABOR UNIONS
TO STAND UP AND FIGHT THOSE WHO ARE IN CHARGE.  THE LATTER HAVE THE
TREASURY OF THE UNION AT THEIR COMMAND AND THE PAID UNION COUNSEL AT
THEIR BECK AND CALL WHILE THE MEMBER IS ON HIS OWN.  . . . AN
INDIVIDUAL UNION MEMBER COULD NOT CARRY SUCH A HEAVY FINANCIAL BURDEN. 
WITHOUT COUNSEL FEES THE GRANT OF FEDERAL JURISDICTION IS BUT A GESTURE
FOR FEW UNION MEMBERS COULD AVAIL THEMSELVES OF IT."  462 F. 2D, AT 780
- 781.  THUS, IT IS SIMPLY "UNTENABLE TO ASSERT THAT IN ESTABLISHING
THE BILL OF RIGHTS UNDER THE ACT CONGRESS INTENDED TO HAVE THOSE RIGHTS
DIMINISHED BY THE UNESCAPABLE FACT THAT AN AGGRIEVED UNION MEMBER WOULD
BE UNABLE TO FINANCE LITIGATION . . . ."  GARTNER V. SOLONER, SUPRA, AT
355.  SEE YABLONSKI V. UNITED MINE WORKERS OF AMERICA, SUPRA, AT 259,
466 F. 2D, AT 430; ROBINS V. SCHONFELD, 326 F. SUPP., AT 531; SANDS V.
ABELI, 290 F. SUPP., AT 686; CF. NEWMAN V. PIGGIE PARK ENTERPRISES,
INC., 390 U.S., AT 402.  WE THEREFORE HOLD THAT THE ALLOWANCE OF
COUNSEL FEES TO THE SUCCESSFUL PLAINTIFF IN A SUIT BROUGHT UNDER ^ 102
OF THE LMRDA IS CONSISTENT WITH BOTH THE ACT AND THE HISTORIC EQUITABLE
POWER OF FEDERAL COURTS TO GRANT SUCH RELIEF IN THE INTERESTS OF
JUSTICE. 

        III 

FINALLY, PETITIONERS MAINTAIN THAT THE AWARD OF COUNSEL FEES TO
RESPONDENT UNDER THE FACTS OF THIS CASE CONSTITUTED AN ABUSE OF THE
DISTRICT COURT'S DISCRETION.  SPECIFICALLY, PETITIONERS ARGUE THAT THE
DISTRICT COURT'S FINDING THAT SOME OF RESPONDENT'S ACTIONS "WERE, IN
PART, MOTIVATED BY (HIS) POLITICAL AMBITIONS FOR UNION OFFICE"
REPRESENTS A FINDING OF "BAD FAITH" ON THE PART OF RESPONDENT.  THE
DISTRICT COURT CLEARLY REJECTED THE "LOGIC" OF THIS CONTENTION, AND WE
AGREE.  TITLE I OF THE LMRDA WAS SPECIFICALLY DESIGNED TO PROTECT THE
UNION MEMBER'S RIGHT TO SEEK HIGHER OFFICE WITHIN THE UNION, /22/  AND
WE CAN HARDLY ACCEPT THE PROPOSITION THAT THE EXERCISE OF THAT RIGHT IS
TANTAMOUNT TO "BAD FAITH."  SEE YABLONSKI V. UNITED MINE WORKERS OF
AMERICA, SUPRA, AT 259 - 260, 466 F. 2D, AT 430 - 431. 

PETITIONERS ALSO CONTEND THAT THE AWARD OF ATTORNEYS' FEES IN THIS
CASE WAS IMPROPER BECAUSE THE DISTRICT COURT, IN DENYING RESPONDENT'S
CLAIM FOR PUNITIVE DAMAGES, FOUND THAT "THE DEFENDANTS, IN GOOD FAITH,
BELIEVED THAT THEY HAD A RIGHT TO CHARGE AND DISCIPLINE (RESPONDENT)
FOR HIS ACTIONS."  IT IS CLEAR, HOWEVER, THAT "BAD FAITH" MAY BE FOUND,
NOT ONLY IN THE ACTIONS THAT LED TO THE LAWSUIT, BUT ALSO IN THE
CONDUCT OF THE LITIGATION.  AND, AS THE COURT OF APPEALS NOTED, THE
CONDUCT OF THIS PARTICULAR LITIGATION WAS MARKED BY "THE DILATORY
ACTION OF THE UNION AND ITS OFFICERS . . . ."  462 F. 2D, AT 780. 
MOREOVER, ALTHOUGH THE PRESENCE OF "BAD FAITH" IS ESSENTIAL TO "FEE
SHIFTING" UNDER A "PUNISHMENT" RATIONALE, NEITHER THE PRESENCE NOR
ABSENCE OF "BAD FAITH"  IS IN ANY SENSE DISPOSITIVE WHERE ATTORNEYS'
FEES ARE AWARDED TO THE SUCCESSFUL PLAINTIFF UNDER THE "COMMON BENEFIT"
RATIONALE RECOGNIZED IN MILLS AND OPERATIVE TODAY.  UNDER THAT THEORY,
COUNSEL FEES ARE GRANTED, NOT BECAUSE OF THE "BAD FAITH" OF THE
DEFENDANT BUT, RATHER, BECAUSE THE LITIGATION CONFERS SUBSTANTIAL
BENEFITS ON AN ASCERTAINABLE CLASS OF BENEFICIARIES.  IN THAT
SITUATION, THE ELEMENT OF "BAD FAITH"  OF THE DEFENDANT IS SIMPLY ONE
OF MANY CONSIDERATIONS BEST ADDRESSED TO THE SOUND DISCRETION OF THE
DISTRICT COURT.  /23/  UNDER THE FACTS OF THIS CASE, WE CANNOT SAY THAT
THE DISTRICT COURT ABUSED THAT DISCRETION. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              AFFIRMED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  SECTION 102 OF THE ACT, 29 U.S.C. ^ 412, PROVIDES IN PERTINENT
PART: 

"ANY PERSON WHOSE RIGHTS SECURED BY THE PROVISIONS OF THIS
SUBCHAPTER HAVE BEEN INFRINGED BY ANY VIOLATION OF THIS SUBCHAPTER MAY
BRING A CIVIL ACTION IN A DISTRICT COURT OF THE UNITED STATES FOR SUCH
RELIEF (INCLUDING INJUNCTIONS) AS MAY BE APPROPRIATE." 

/2/  SECTION 101 (A) (2) OF THE ACT, 29 U.S.C. ^ 411 (A) (2),
PROVIDES: 

"EVERY MEMBER OF ANY LABOR ORGANIZATION SHALL HAVE THE RIGHT TO MEET
AND ASSEMBLE FREELY WITH OTHER MEMBERS; AND TO EXPRESS ANY VIEWS,
ARGUMENTS, OR OPINIONS; AND TO EXPRESS AT MEETINGS OF THE LABOR
ORGANIZATION HIS VIEWS, UPON CANDIDATES IN AN ELECTION OF THE LABOR
ORGANIZATION OR UPON ANY BUSINESS PROPERLY BEFORE THE MEETING, SUBJECT
TO THE ORGANIZATION'S ESTABLISHED AND REASONABLE RULES PERTAINING TO
THE CONDUCT OF MEETINGS:  PROVIDED, THAT NOTHING HEREIN SHALL BE
CONSTRUED TO IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO ADOPT AND
ENFORCE REASONABLE RULES AS TO THE RESPONSIBILITY OF EVERY MEMBER
TOWARD THE ORGANIZATION AS AN INSTITUTION AND TO HIS REFRAINING FROM
CONDUCT THAT WOULD INTERFERE WITH ITS PERFORMANCE OF ITS LEGAL OR
CONTRACTURAL OBLIGATIONS." 

/3/  IN ITS UNREPORTED OPINION, THE DISTRICT COURT FOUND THAT
RESPONDENT "SUFFERED NO LOSS OF WAGES AS A RESULT OF HIS EXPULSION FROM
THE UNION."  AND ALTHOUGH RESPONDENT "WAS DEPRIVED OF HIS RIGHT TO
ATTEND MEETINGS, AND RUN FOR UNION OFFICE" DURING THE PERIOD OF HIS
EXPULSION, THE DISTRICT COURT CONCLUDED THAT "(THE RECORD IS BARREN OF
ANY PROOF ON WHICH THE COURT MIGHT MAKE A DETERMINATION OF THE VALUE OF
(THESE RIGHTS)."  FINALLY, THE COURT DENIED RESPONDENT'S CLAIM FOR
PUNITIVE DAMAGES ON THE GROUND THAT THE UNION'S DECISION TO EXPEL
RESPONDENT WAS MOTIVATED NEITHER BY MALICE NOR BAD FAITH. 

/4/  THE AMERICAN RULE, IT MIGHT BE NOTED, IS MORE RESTRICTIVE THAN
THE GENERAL RULE THAT PREVAILS IN MOST OTHER NATIONS.  SEE, E. G.,
EHRENZWEIG, REIMBURSEMENT OF COUNSEL FEES AND THE GREAT SOCIETY, 54
CALIF. L. REV. 792, 793 (1966).  MANY COMMENTATORS HAVE ARGUED FOR A
"LIBERALIZATION" OF THE AMERICAN RULE.  SEE, E. G., STOEBUCK, COUNSEL
FEES INCLUDED IN COSTS:  A LOGICAL DEVELOPMENT, 38 U. COLO. L. REV. 202
(1966); EHRENZWEIG, SUPRA; KUENZEL, THE ATTORNEY'S FEE:  WHY NOT A COST
OF LITIGATION?, 49 IOWA L. REV. 75 (1963); MCCORMICK, COUNSEL FEES AND
OTHER EXPENSES OF LITIGATION AS AN ELEMENT OF DAMAGES, 15 MINN. L. REV.
619 (1931); COMMENT, THE ALLOCATION OF ATTORNEY'S FEES AFTER MILLS V.
ELECTRIC AUTO-LITE CO., 38 U. CHI.  L. REV. 316 (1971); NOTE,
ATTORNEY'S FEES:  WHERE SHALL THE ULTIMATE BURDEN LIE?, 20 VAND.  L.
REV. 1216 (1967). 

/5/  SEE, E. G., CLAYTON ACT, ^ 4, 38 STAT. 731, 15 U.S.C. ^ 15;
COMMUNICATIONS ACT OF 1934, ^ 206, 48 STAT. 1072, 47 U.S.C. ^ 206;
INTERSTATE COMMERCE ACT, ^ 16, 34 STAT. 590, 49 U.S.C. ^ 16 (2);
SECURITIES EXCHANGE ACT OF 1934, ^^ 9 (E), 18 (A), 48 STAT. 890, 897,
15 U.S.C. ^^ 78I (E), 78R (A). 

/6/  SEE, E. G., FLEIS MANN DISTILLING CORP. V. MAIER BREWING CO.,
386 U.S. 714, 717 (1967); HAUENSTEIN V. LYNHAM, 100 U.S. 483 (1880);
DAY V. WOODWORTH, 13 HOW.  363 (1852). 

/7/  THIS EXCEPTION HAS ITS ORIGINS IN THE "COMMON FUND" CASES,
WHICH HAVE TRADITIONALLY AWARDED ATTORNEYS' FEES TO THE SUCCESSFUL
PLAINTIFF WHEN HIS REPRESENTATIVE ACTION CREATES OR TRACES A "COMMON
FUND," THE ECONOMIC BENEFIT OF WHICH IS SHARED BY ALL MEMBERS OF THE
CLASS.  SEE, E. G., CENTRAL RAILROAD & BANKING CO. V. PETTUS, 113 U.S.
116 (1885); TRUSTEES V. GREENOUGH, 105 U.S. 527 (1882).  IN SPRAGUE V.
TICONIC NATIONAL BANK, 307 U.S. 161 (1939), THE RATIONALE OF THESE
CASES WAS EXTENDED TO AUTHORIZE AN AWARD OF ATTORNEYS' FEES TO A
SUCCESSFUL PLAINTIFF WHO, ALTHOUGH SUING ON HER OWN BEHALF RATHER THAN
AS REPRESENTATIVE OF A CLASS, NEVERTHELESS ESTABLISHED THE RIGHT OF
OTHERS TO RECOVER OUT OF SPECIFIC ASSETS OF THE SAME DEFENDANT THROUGH
THE OPERATION OF STARE DECISIS.  IN REACHING THIS RESULT, THE COURT
EXPLAINED THAT THE BENEFICIARIES OF THE PLAINTIFF'S LITIGATION COULD BE
MADE TO CONTRIBUTE TO THE COSTS OF THE SUIT BY AN ORDER REIMBURSING THE
PLAINTIFF OUT OF THE DEFENDANT'S ASSETS FROM WHICH THE BENEFICIARIES
EVENTUALLY WOULD RECOVER.  FINALLY, IN MILLS V. ELECTROC AUTO-LITE CO.,
396 U.S. 375 (1970), WE HELD THAT THE RATIONALE OF THESE CASES MUST
LOGICALLY EXTEND, NOT ONLY TO LITIGATION THAT CONFERS A MONETARY
BENEFIT ON OTHERS, BUT ALSO TO LITIGATION "'WHICH CORRECTS OR PREVENTS
AN ABUSE WHICH WOULD BE PREJUDICIAL TO THE RIGHTS AND INTERESTS'" OF
THOSE OTHERS.  ID., AT 396, QUOTING BOSCH V. MEEKER COOPERATIVE LIGHT &
POWER ASSN., 257 MINN. 362, 366 - 367, 101 N.W. 2D 423, 427 (1960). 

CITING OUR DECISIONS IN MILLS, SUPRA, AND NEWMAN V. PIGGIE PARK
ENTERPRISES, INC., 390 U.S. 400 (1968), RESPONDENT CONTENDS THAT THE
AWARD OF ATTORNEYS' FEES IN THIS CASE MIGHT ALSO BE JUSTIFIED ON THE
GROUND THAT, BY SUCCESSFULLY PROSECUTING THIS LITIGATION, RESPONDENT
ACTED AS A "'PRIVATE ATTORNEY GENERAL,' VINDICATING A POLICY THAT
CONGRESS CONSIDERED OF THE HIGHEST PRIORITY."  ID., AT 402.  SEE ALSO
KNIGHT V. AUCIELLO, 453 F. 2D 852 (CA1 1972); LEE V. SOUTHERN HOME
SITES CORP., 444 F. 2D 143 (CA5 1971).  IN LIGHT OF OUR CONCLUSION WITH
RESPECT TO THE "COMMON BENEFIT" RATIONALE, HOWEVER, WE HAVE NO OCCASION
TO CONSIDER THAT QUESTION. 

/8/  MILLS V. ELECTRIC AUTO-LITE CO., SUPRA, AT 392, QUOTING J. I.
CASE CO. V. BORAK, 377 U.S. 426, 432 (1964). 

/9/  105 CONG. REC. 6471 (1959) (SEN. MCCLELLAN). 

/10/  29 U.S.C. ^^ 411 - 415. 

/11/  AMERICAN FEDERATION OF MUSICIANS V. WITTSTEIN, 379 U.S. 171,
182 - 183 (1964). 

/12/  IN ADDITION TO THE TIT.  I GUARANTEE OF FREEDOM OF SPEECH AND
ASSEMBLY INVOLVED IN THIS CASE, 29 U.S.C. ^ 411 (A) (2), SEE N. 2,
SUPRA, TIT.  I ALSO GUARANTEES EQUAL "POLITICAL" RIGHTS TO ALL UNION
MEMBERS, 29 U.S.C. ^ 411 (A) (1); STABILITY AND FAIRNESS IN THE
ASSESSMENT OF DUES, INITIATION FEES, AND OTHER ASSESSMENTS, 29 U.S.C. ^
411 (A) (3); THE RIGHT OF ALL UNION MEMBERS TO SUE AND TO PARTICIPATE
IN LITIGATION, 29 U.S.C. ^ 411 (A) (4); AND PROCEDURAL FAIRNESS IN THE
DISCIPLINE PROCESS, 29 U.S.C. ^ 411 (A) (5). 

/13/  PETITIONERS CONTEND THAT THE PAYMENT OF COUNSEL FEES OUT OF
THE UNION TREASURY MIGHT DEPLETE UNION FUNDS TO SUCH AN EXTENT AS TO
IMPAIR THE UNION'S ABILITY TO OPERATE AS AN EFFECTIVE COLLECTIVE
BARGAINING AGENT AND TO ENDANGER UNION STABILITY.  ALTHOUGH THIS
CONSIDERATION IS UNDOUBTEDLY AN IMPORTANT ONE, IT IS RELEVANT, NOT TO
THE POWER OF FEDERAL COURTS TO AWARD COUNSEL FEES GENERALLY, BUT,
RATHER, TO THE EXERCISE OF THE DISTRICT COURT'S DISCRETION ON A CASE-BY
CASE BASIS.  SEE N. 23, INFRA. 

/14/  FLEISCHMANN DISTILLING CORP. V. MAIER BREWING CO., SUPRA, AT
719. 

/15/  SECTION 201 (C) PROVIDES FOR THE AWARD OF COUNSEL FEES IN A
SUIT BROUGHT BY A UNION MEMBER TO OBTAIN ACCESS TO UNION BOOKS,
RECORDS, AND ACCOUNTS TO VERIFY ANNUAL FINANCIAL STATEMENTS.  29 U.S.C.
^ 431 (C).  SECTION 501 (B) AUTHORIZES "FEE SHIFTING" IN A SUIT BROUGHT
BY A MEMBER AGAINST A UNION OFFICIAL TO RECOVER DAMAGES OR FOR AN
ACCOUNTING FOR THE BENEFIT OF THE UNION ON THE GROUND THAT THE OFFICIAL
IS VIOLATING HIS DUTIES.  29 U.S.C. ^ 501 (B). 

/16/  GARTNER V. SOLONER, 384 F. 2D 348, 353 (CA3 1967). 

/17/  INDEED, THE MILLS REASONING MAY BE PARTICULARLY APPROPRIATE WITH
RESPECT TO THE LMRDA.  AS PROFESSOR COX HAS NOTED, "BECAUSE MUCH OF THE
BILL WAS WRITTEN ON THE FLOOR OF THE SENATE OR HOUSE OF REPRESENTATIVES
AND BECAUSE MANY SECTIONS CONTAIN CALCULATED AMBIGUITIES OR POLITICAL
COMPROMISES . . . , THE COURTS WOULD BE WELL ADVISED TO SEEK OUT THE
UNDERLYING RATIONALE WITHOUT PLACING GREAT EMPHASIS UPON CLOSE
CONSTRUCTION OF THE WORDS," COX, INTERNATIONAL AFFAIRS OF LABOR UNIONS
UNDER THE LABOR REFORM ACT OF 1959, 58 MICH. L. REV. 819, 852 (1960). 

/18/  IN HIS TESTIMONY BEFORE THE HOUSE COMMITTEE ON EDUCATION AND
LABOR, AFTER PASSAGE OF THE SENATE VERSION OF THE LMRDA, SENATOR
GOLDWATER STATED THAT "THE BILL DOES NOT GRANT (THE UNION MEMBER), EVEN
WHERE SUCCESSFUL IN HIS SUIT, REASONABLE COUNSEL FEES OR OTHER COSTS. 
IT THUS FORCES HIM TO ASSUME THE ENTIRE FINANCIAL BURDEN OF THE
LITIGATION.  FOR AN ORDINARY RANK-AND-FILE UNION MEMBER WHO IS
GENERALLY A WAGE WORKER, SUCH A LITIGATION THUS BECOMES AN IMPOSSIBLE
FINANCIAL BURDEN."  105 CONG. REC. 10095 (1959). 

/19/  IN OPPOSING THE REPORTING OF THE ELLIOTT BILL, H. R. 8342,
86TH CONG., 1ST SESS. (1959), TO THE HOUSE, THE NINE DISSENTING MEMBERS
OF THE HOUSE COMMITTEE ON EDUCATION AND LABOR PROTESTED THAT "(UNDER
THAT BILL THE INDIVIDUAL MEMBER MUST SHOULDER THE BURDEN OF LITIGATION
COSTS HIMSELF."  H. R. REP. NO. 741, 86TH CONG., 1ST SESS., 95 (1959). 
AT THE END OF THEIR CRITICISMS OF THE ELLIOTT BILL, THE DISSENTERS
EXPLAINED THAT "(FOR THE REASONS OUTLINED ABOVE, WE INTEND TO SUPPORT .
. . THE SO-CALLED LANDRUM-GRIFFIN BILL (H. R. 8400 AND 8401)."  ID., AT
98.  THUS, ALTHOUGH THE ENFORCEMENT PROVISIONS OF THE ELLIOTT BILL AND
THE LANDRUM-GRIFFIN BILL WERE VIRTUALLY IDENTICAL, THE DISSENTERS
APPARENTLY BELIEVED THAT THE LATTER, WHICH EVENTUALLY WAS ENACTED,
ALLOWED THE UNION MEMBER TO RECOVER COUNSEL FEES. 

/20/  105 CONG. REC. 15548 (1959) (REP. ELLIOTT). 

/21/  ID., AT 6717 (SEN. KUCHEL).  SEE ID., AT 15864 ET SEQ. (REP.
O'HARA); SEE ALSO 29 U.S.C. ^^ 413, 523 (A).     /22/  IN DESCRIBING TO
THE SENATE THE VARIOUS "OFFENSES" FOR WHICH A UNION MEMBER COULD BE
EXPELLED UNDER THEN-EXISTING UNION CONSTITUTIONS, SENATOR MCCLELLAN
POINTED OUT IN PARTICULAR THE "OFFENSE" OF "APPLYING FOR THE POSITION
OF ANOTHER UNION MAN IN OFFICE."  HE OBSERVED, WITH EVIDENT SARCASM,
THAT:  "A MEMBER HAD BETTER NOT DO THAT.  THE OFFICERS HAVE SQUATTERS'
RIGHTS.  MEMBERS HAD BETTER NOT OFFER ANY COMPETITION.  THEY HAD BETTER
NOT SEEK ELECTION.  THEY HAD BETTER NOT ASPIRE TO THE PRESIDENCY OR THE
SECRETARYSHIP, OR THEY WILL BE EXPELLED OR DISCIPLINED."  105 CONG.
REC. 6478 (1959).     /23/  ANOTHER SUCH CONSIDERATION IS, OF COURSE,
THE EXTENT TO WHICH THE PAYMENT OF THE PLAINTIFF'S COUNSEL FEES OUT OF
THE UNION TREASURY MIGHT IMPAIR THE UNION'S ABILITY TO OPERATE
EFFECTIVELY.  SEE N. 13, SUPRA.  HERE, PETITIONERS DO NOT, AND INDEED
CANNOT, CONTEND THAT THE AWARD OF ONLY $5,500 WOULD IN ANY SENSE
JEOPARDIZE UNION STABILITY. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

I WOULD NEED A FAR CLEARER SIGNAL FROM CONGRESS THAN WE HAVE HERE TO
PERMIT AWARDING ATTORNEYS' FEES IN MEMBER-UNION LITIGATION, WHICH SO
OFTEN INVOLVES PRIVATE FEUDING HAVING NO GENERAL SIGNIFICANCE.  THE
AWARD OF FEES IN THE OCCASIONALLY SUCCESSFUL AND MERITORIOUS CASE WILL
NOT BE WORTH THE LITIGATION THE COURT'S DECISION WILL INVITE AND
FOSTER. 

HOWARD SCHULMAN ARGUED TO CAUSE AND FILED A BRIEF FOR PETITIONERS. 

BURTON H. HALL ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING REVERSAL. 

MELVIN L. WULF AND SANFORD J. ROSEN FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :







CHAFFIN V. STYNCHCOMBE, SHERIFF 412 U.S. 17 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 71 - 6732.  ARGUED FEBRUARY 22, 1973--DECIDED MAY 21,

           1973; 455 F.2D 640, AFFIRMED. 


    UPON RETRIAL FOLLOWING THE REVERSAL OF HIS CONVICTION,

  PETITIONER WAS AGAIN FOUND GUILTY AND SENTENCED BY THE JURY TO A

  GREATER TERM THAN HAD BEEN IMPOSED BY THE FIRST JURY.  AFTER

  EXHAUSTING HIS STATE COURT APPEALS, PETITIONER WAS DENIED HABEAS

  CORPUS ON HIS CLAIM THAT IMPOSING A HIGHER SENTENCE ON RETRIAL

  WAS UNCONSTITUTIONAL, AND THE COURT OF APPEALS AFFIRMED.  HELD:

  THE RENDITION OF A HIGHER SENTENCE BY A JURY UPON RETRIAL DOES

  NOT VIOLATE THE DOUBLE JEOPARDY CLAUSE, NORTH CAROLINA V. PEARCE,

395 U.S. 711, 719 - 721, AND DOES NOT OFFEND THE DUE PROCESS

  CLAUSE AS LONG AS THE JURY IS NOT INFORMED OF THE PRIOR SENTENCE

  AND THE SECOND SENTENCE IS NOT OTHERWISE SHOWN TO BE A PRODUCT OF

  VINDICTIVENESS.  NOR DOES THE POSSIBILITY OF A HIGHER SENTENCE

  IMPERMISSIBLY "CHILL" THE EXERCISE OF A CRIMINAL DEFENDANT'S

  RIGHT TO CHALLENGE HIS FIRST CONVICTION BY DIRECT APPEAL OR

  COLLATERAL ATTACK.  PP. 23 - 35. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING STATEMENT, POST, P. 35.  STEWART, J., FILED A
DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED, POST P. 35. 
MARSHALL, J., FILED A DISSENTING OPINION, POST, P. 38. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

A WRIT OF CERTIORARI WAS GRANTED IN THIS CASE TO CONSIDER WHETHER, IN
THOSE STATES THAT ENTRUST THE SENTENCING RESPONSIBILITY TO THE JURY,
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BARS THE JURY FROM
RENDERING HIGHER SENTENCES ON RETRIALS FOLLOWING REVERSALS OF PRIOR
CONVICTIONS.  IN NORTH CAROLINA V. PEARCE, 395 U.S. 711 (1969), THIS
COURT ESTABLISHED LIMITATIONS ON THE IMPOSITION OF HIGHER SENTENCES BY
JUDGES IN SIMILAR CIRCUMSTANCES.  WHILE WE AFFIRM THE UNDERLYING
RATIONALE OF PEARCE THAT VINDICTIVENESS AGAINST THE ACCUSED FOR HAVING
SUCCESSFULLY OVERTURNED HIS CONVICTION HAS NO PLACE IN THE RESENTENCING
PROCESS, WHETHER BY JUDGE OR JURY, WE HOLD TODAY THAT DUE PROCESS OF
LAW DOES NOT REQUIRE EXTENSION OF PEARCE-TYPE RESTRICTIONS TO JURY
SENTENCING. 

        I 

EARLY IN 1969, PETITIONER WAS TRIED BY A JURY IN A GEORGIA STATE
CRIMINAL COURT ON A CHARGE OF ROBBERY BY OPEN FORCE OR VIOLENCE, A
CAPITAL OFFENSE AT THAT TIME.  THE JURY, WHICH HAD BEEN INSTRUCTED THAT
IT WAS EMPOWERED TO IMPOSE A SENTENCE OF DEATH, LIFE IMPRISONMENT, OR A
TERM OF YEARS, /1/  FOUND PETITIONER GUILTY AND SENTENCED HIM TO 15
YEARS IN PRISON.  HE APPEALED TO THE GEORGIA SUPREME COURT, CLAIMING
PRIMARILY THAT THE TRIAL JUDGE HAD GIVEN AN ERRONEOUS JURY INSTRUCTION
AS TO THE DEFENDANT'S BURDEN OF PROVING AN ALIBI DEFENSE.  HIS CLAIM
WAS REJECTED AND HIS CONVICTION WAS AFFIRMED.  225 GA. 602, 170 S.E. 2D
426 (1969).  THEREAFTER, HE RENEWED THAT CLAIM IN A PETITION FOR A WRIT
OF HABEAS CORPUS TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA.  THE DISTRICT COURT FOUND PETITIONER'S CONTENTION
MERITORIOUS, GRANTED THE WRIT, AND ORDERED HIM RETURNED TO THE STATE
COURT FOR RETRIAL. 

UPON RETRIAL BEFORE A DIFFERENT JUDGE AND A NEW JURY, PETITIONER WAS
AGAIN FOUND GUILTY.  A COMPARISON OF THE TRIAL TRANSCRIPTS IN THE TWO
CASES INDICATES THAT THE TRIALS WERE SIMILAR IN MOST RESPECTS.  THE
CASE WAS PROSECUTED ON BOTH OCCASIONS BY THE SAME STATE'S ATTORNEY AND
THE SAME PROSECUTION WITNESSES TESTIFIED TO THE FACTS SURROUNDING THE
ALLEGED ROBBERY.  PETITIONER, HOWEVER, WAS REPRESENTED BY NEW COUNSEL
AND, IN ADDITION TO REPEATING HIS ALIBI DEFENSE, HE INTERPOSED AN
INSANITY DEFENSE NOT OFFERED AT THE FORMER TRIAL.  NEW WITNESSES WERE
CALLED TO TESTIFY FOR BOTH SIDES ON THIS ISSUE.  ALSO, WHILE PETITIONER
TOOK THE STAND AND MADE AN UNSWORN STATEMENT IN EACH CASE, HIS
STATEMENT AT THE LATTER TRIAL WAS LONGER AND CONTAINED AUTOBIOGRAPHICAL
INFORMATION NOT PRESENTED TO THE FORMER JURY, INCLUDING AN EMOTIONAL
DISCUSSION OF HIS FAMILY BACKGROUND, AN ACCOUNT OF HIS RELIGIOUS
AFFILIATION, JOB HISTORY, AND PREVIOUS PHYSICAL INJURIES, AND A
RENDITION OF SEVERAL RELIGIOUS POEMS AND SONGS HE HAD WRITTEN.  /2/ 

THE JURY INSTRUCTIONS ON THE PERMISSIBLE RANGE OF PUNISHMENT WERE
THE SAME AT EACH TRIAL AND THE PROSECUTOR AT THE SECOND TRIAL URGED THE
JURY TO SENTENCE PETITIONER TO DEATH, AS HE HAD IN HIS CLOSING ARGUMENT
AT THE PRIOR TRIAL.  /3/  THIS TIME, HOWEVER, THE JURY RETURNED A
SENTENCE OF LIFE IMPRISONMENT.  THE PARTIES AGREE THAT THE JURY WAS NOT
AWARE OF THE LENGTH OF THE SENTENCE METED OUT BY THE FORMER JURY.  AND,
ALTHOUGH THE JURY WAS INFORMED BY ONE OF PETITIONER'S OWN WITNESSES
THAT HE HAD BEEN TRIED PREVIOUSLY ON THE SAME CHARGE, /4/  THE JURY WAS
NOT TOLD THAT PETITIONER HAD BEEN CONVICTED AND THAT HIS CONVICTION HAD
BEEN OVERTURNED ON COLLATERAL ATTACK.  /5/ 

CLAIMING PRIMARILY THAT IT WAS IMPROPER FOR THE STATE TO ALLOW THE
JURY TO RENDER A HARSHER SENTENCE ON RETRIAL, PETITIONER APPEALED AGAIN
TO THE STATE SUPREME COURT.  THAT COURT AFFIRMED THE LOWER COURT'S
JUDGMENT AND REFUSED TO ALTER PETITIONER'S SENTENCE.  227 GA. 327, 180
S.E. 2D 741 (1971).  HE THEN FILED HIS SECOND APPLICATION FOR HABEAS
RELIEF IN THE FEDERAL DISTRICT COURT, ARGUING THAT THE HIGHER SENTENCE
WAS INVALID UNDER PEARCE.  THE DISTRICT COURT DISAGREED AND DECLINED TO
ISSUE THE WRIT.  ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT, THE DISTRICT COURT'S JUDGMENT WAS AFFIRMED IN AN
OPINION HOLDING THAT THE HIGHER SENTENCE RECEIVED IN THIS CASE WAS NOT
VIOLATIVE OF DUE PROCESS.  455 F. 2D 640 (1972).  BECAUSE TWO OTHER
FEDERAL COURTS OF APPEALS HAD HELD TO THE CONTRARY THAT PEARCE
RESTRICTIONS ARE APPLICABLE, /6/  WE GRANTED CERTIORARI TO RESOLVE THE
CONFLICT.  409 U.S. 912 (1972). 

        II 

GEORGIA IS ONE OF A SMALL NUMBER OF STATES THAT ENTRUST THE
SENTENCING FUNCTION IN FELONY CASES TO THE JURY RATHER THAN TO THE
JUDGE.  /7/  WHILE MUCH HAS BEEN WRITTEN ON THE QUESTIONS WHETHER JURY
SENTENCING IS DESIRABLE /8/  AND WHETHER IT IS COMPATIBLE WITH THE
MODERN PHILOSOPHY OF CRIMINAL SENTENCING THAT "THE PUNISHMENT SHOULD
FIT THE OFFENDER AND NOT MERELY THE CRIME," WILLIAM V. NEW YORK, 337
U.S. 241, 247 (1949), THIS COURT HAS NEVER EXPRESSED DOUBT ABOUT THE
CONSTITUTIONALITY OF THAT PRACTICE.  SEE MCGAUTHA V. CALIFORNIA, 402
U.S. 183, 196 - 208 (1971); WITHERSPOON V. ILLINOIS, 391 U.S. 510, 519
520 AND N. 15 (1968); SPENCER V. TEXAS, 385 U.S. 554, 560 (1967);
GIACCIO V. PENNSYLVANIA, 382 U.S. 399, 405 N. 8 (1966).  THE STATES
HAVE ALWAYS ENJOYED "WIDE LEEWAY IN DIVIDING RESPONSIBILITY BETWEEN
JUDGE AND JURY IN CRIMINAL CASES."  SPENCER V. TEXAS, SUPRA, AT 560. 
IF A STATE CONCLUDES THAT JURY SENTENCING IS PREFERABLE BECAUSE, FOR
INSTANCE, IT GUARANTEES THE MAINTENANCE OF A "LINK BETWEEN CONTEMPORARY
COMMUNITY VALUES AND THE PENAL SYSTEM," WITHERSPOON V. ILLINOIS, SUPRA,
AT 519 N. 15, OR BECAUSE "JURIES ARE MORE LIKELY TO ACT WITH
COMPASSION, FAIRNESS, AND UNDERSTANDING THAN THE JUDGE,"  STUBBS, JURY
SENTENCING IN GEORGIA--TIME FOR A CHANGE?, 5 GA. ST. B. J. 421, 426
(1969), NOTHING IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
INTRUDES UPON THAT CHOICE. 

PETITIONER DOES NOT QUESTION THIS PROPOSITION.  INSTEAD, HE CONTENDS
THAT, ALTHOUGH THE JURY MAY SET THE SENTENCE, ITS RANGE OF DISCRETION
MUST BE SUBJECTED TO LIMITATIONS SIMILAR TO THOSE IMPOSED WHEN THE
SENTENCING FUNCTION ON RETRIAL IS PERFORMED BY THE JUDGE.  WHILE
PRIMARY RELIANCE, THEREFORE, IS PLACED ON THIS COURT'S RECENT OPINION
IN PEARCE, PETITIONER ASSERTS THREE DISTINCT DUE PROCESS CLAIMS:  (A)
HIGHER SENTENCES ON RETRIAL VIOLATE THE DOUBLE JEOPARDY PROVISION OF
THE FIFTH AMENDMENT, MADE BINDING ON THE STATES THROUGH THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT, BENTON V. MARYLAND, 395 U.S. 784,
793 - 796 (1969); (B) HIGHER SENTENCES OCCASIONED BY VINDICTIVENESS ON
THE PART OF THE SENTENCING AUTHORITY VIOLATE TRADITIONAL CONCEPTS OF
FAIRNESS IN THE CRIMINAL PROCESS; AND (C) THE POSSIBILITY OF A HIGHER
SENTENCE, EVEN ABSENT A REASONABLE FEAR OF VINDICTIVENESS, HAS AN
IMPERMISSIBLE "CHILLING EFFECT" ON THE EXERCISE OF THE RIGHTS TO APPEAL
AND TO ATTACK COLLATERALLY A CONVICTION.  EACH CLAIM WILL BE CONSIDERED
SEPARATELY. 

        A 

THE QUESTION PRESENTED IN PEARCE, ARISING IN THE CONTEXT OF JUDICIAL
RESENTENCING, WAS FRAMED AS FOLLOWS:  "WHEN AT THE BEHEST OF THE
DEFENDANT A CRIMINAL CONVICTION HAS BEEN SET ASIDE AND A NEW TRIAL
ORDERED, TO WHAT EXTENT DOES THE CONSTITUTION LIMIT THE IMPOSITION OF A
HARSHER SENTENCE AFTER CONVICTION UPON RETRIAL?"  395 U.S., AT 713.  IN
ADDRESSING FIRST THE DOUBLE JEOPARDY CLAIM, THE COURT RECOGNIZED THE
LONG-ACCEPTED POWER OF A STATE "TO RETRY A DEFENDANT WHO HAS SUCCEEDED
IN GETTING HIS FIRST CONVICTION SET ASIDE," ID., AT 720 (EMPHASIS IN
ORIGINAL); UNITED STATES V. TATEO, 377 U.S. 463 (1964), AND, AS A
"COROLLARY" OF THAT POWER, "TO IMPOSE WHATEVER SENTENCE MAY BE LEGALLY
AUTHORIZED, WHETHER OR NOT IT IS GREATER THAN THE SENTENCE IMPOSED
AFTER THE FIRST CONVICTION."  395 U.S., AT 720. 

THE FOUNDATIONAL PRECEDENT FROM WHICH THE COURT'S VIEW OF
RESENTENCING DISCRETION DERIVES IS STROUD V. UNITED STATES, 251 U.S. 15
(1919), A CASE WHICH, BECAUSE IT INVOLVED JURY RESENTENCING, IS CENTRAL
TO THE DOUBLE JEOPARDY CLAIM IN THE PRESENT CASE.  ROBERT STROUD,
POPULARLY KNOWN AS "THE BIRDMAN OF ALCATRAZ,"  /9/  WAS INDICTED FOR
THE MURDER OF A FEDERAL PRISON GUARD AT LEAVENWORTH, KANSAS.  AFTER
BEING CONVICTED AND SENTENCED BY A JURY TO LIFE IMPRISONMENT, HE WON A
RETRIAL UPON A CONFESSION OF ERROR BY THE SOLICITOR GENERAL.  HIS
RETRIAL RESULTED IN ANOTHER VERDICT OF GUILTY OF MURDER IN THE FIRST
DEGREE AND A SENTENCE, AGAIN IMPOSED BY THE JURY, OF DEATH.  ON A
DIRECT APPEAL, A UNANIMOUS COURT HELD THAT DESPITE THE HARSHER SENTENCE
ON RETRIAL STROUD HAD NOT BEEN "PLACED IN SECOND JEOPARDY WITHIN THE
MEANING OF THE CONSTITUTION."  ID., AT 18. 

THE COURT IN PEARCE REAFFIRMED THAT DECISION, EMPHASIZING THAT IT
NOW CONSTITUTES A "'WELL-ESTABLISHED PART OF OUR CONSTITUTIONAL
JURISPRUDENCE'" WHICH RESTS ON THE "PREMISE THAT THE ORIGINAL
CONVICTION HAS, IN THE DEFENDANT'S BEHEST, BEEN WHOLLY NULLIFIED AND
THE SLATE WIPED CLEAN."  395 U.S., AT 720 - 721.  PETITIONER, RELYING
ON THE VIEWS OF MR. JUSTICE DOUGLAS AND MR. JUSTICE HARLAN EXPRESSED IN
THEIR SEPARATE OPINIONS IN PEARCE, ID., AT 726, 744, URGES THE COURT TO
OVERRULE STROUD, /10/  A STEP FOR WHICH, FOR THE REASONS STATED IN
PEARCE, WE AGAIN DECLINE TO TAKE. 

        B 

PETITIONER'S SECOND CONTENTION FOCUSES ON THE PROBLEM OF
VINDICTIVENESS.  IN PEARCE IT WAS HELD THAT VINDICTIVENESS, MANIFESTING
ITSELF IN THE FORM OF INCREASED SENTENCES UPON CONVICTION AFTER
RETRIAL, CAN HAVE NO PLACE IN THE RESENTENCING PROCESS.  UNDER OUR
CONSTITUTIONAL SYSTEM IT WOULD BE IMPERMISSIBLE FOR THE SENTENCING
AUTHORITY TO METE OUT HIGHER SENTENCES ON RETRIAL AS PUNISHMENT FOR
THOSE WHO SUCCESSFULLY EXERCISED THEIR RIGHT TO APPEAL, OR TO ATTACK
COLLATERALLY THEIR CONVICTION.  /11/  THOSE ACTUALLY SUBJECTED TO
HARSHER RESENTENCING AS A CONSEQUENCE OF SUCH MOTIVATION WOULD BE MOST
DIRECTLY INJURED, BUT THE WRONG WOULD EXTEND AS WELL TO THOSE WHO ELECT
NOT TO EXERCISE THEIR RIGHTS OF APPEAL BECAUSE OF A LEGITIMATE FEAR OF
RETALIATION.  THUS, THE COURT HELD THAT FUNDAMENTAL NOTIONS OF FAIRNESS
EMBODIED WITHIN THE CONCEPT OF DUE PROCESS REQUIRED THAT CONVICTED
DEFENDANTS BE "FREED OF APPREHENSION OF SUCH A RETALIATORY
MOTIVATION."  ID., AT 725.  TO THAT END, THE COURT CONCLUDED THAT
"WHENEVER A JUDGE IMPOSES A MORE SEVERE SENTENCE UPON A DEFENDANT AFTER
A NEW TRIAL, THE REASONS FOR HIS DOING SO MUST AFFIRMATIVELY APPEAR." 
ID., AT 726.  AND, AS A FURTHER PROPHYLAXIS, IT WAS STATED THAT THOSE
REASONS MUST BE BASED UPON "OBJECTIVE INFORMATION CONCERNING
IDENTIFIABLE CONDUCT ON THE PART OF THE DEFENDANT OCCURRING AFTER THE
TIME OF THE ORIGINAL SENTENCING PROCEEDING."  IBID. 

PETITIONER SEEKS THE EXTENSION OF THE PEARCE RATIONALE TO JURY
SENTENCING.  THAT DECISION, AS WE HAVE SAID, WAS PREMISED ON THE
APPARENT NEED TO GUARD AGAINST VINDICTIVENESS IN THE RESENTENCING
PROCESS.  PEARCE WAS NOT WRITTEN WITH A VIEW TO PROTECTING AGAINST THE
MERE POSSIBILITY THAT, ONCE THE SLATE IS WIPED CLEAN AND THE
PROSECUTION BEGINS ANEW, A FRESH SENTENCE MAY BE HIGHER FOR SOME VALID
REASON ASSOCIATED WITH THE NEED FOR FLEXIBILITY AND DISCRETION IN THE
SENTENCING PROCESS.  THE POSSIBILITY OF A HIGHER SENTENCE WAS
RECOGNIZED AND ACCEPTED AS A LEGITIMATE CONCOMITANT OF THE RETRIAL
PROCESS.  ID., AT 723. 

SUBSEQUENT CASES HAVE DISPELLED ANY DOUBT THAT PEARCE WAS PREMISED
ON THE HAZARD OF VINDICTIVENESS.  IN MOON V. MARYLAND, 398 U.S. 319
(1970), A CASE GRANTED WITH A VIEW TO DETERMINING THE RETROACTIVITY OF
PEARCE, THE COURT ORDERED THE CASE DISMISSED AS IMPROVIDENTLY GRANTED
WHEN IT BECAME CLEAR THAT THERE WAS NO CLAIM THERE THAT THE HIGHER
SENTENCE RECEIVED ON RETRIAL WAS A PRODUCT OF VINDICTIVENESS ON THE
PART OF THE SENTENCING JUDGE.  BECAUSE COUNSEL FOR THE RECONVICTED
DEFENDANT ESCHEWED THAT CONTENTION, THE COURT HELD THAT "THERE IS NO
CLAIM IN THIS CASE THAT THE DUE PROCESS STANDARD OF PEARCE WAS
VIOLATED."  ID., AT 320.  A SIMILAR FOCUS ON ACTUAL VINDICTIVENESS IS
REFLECTED IN THE DECISION LAST TERM IN COLTEN V. KENTUCKY, 407 U.S. 104
(1972).  THE QUESTION IN THAT CASE WAS WHETHER THE PEARCE PRINCIPLE
APPLIED TO BAR THE IMPOSITION OF A HIGHER SENTENCE AFTER A DE NOVO
TRIAL IN THOSE JURISDICTIONS THAT EMPLOY A TWO-TIER SYSTEM OF TRIAL
COURTS.  WHILE NOTING THAT "(IT MAY OFTEN BE THAT THE (DE NOVO "APPEAL"
COURT) WILL IMPOSE A PUNISHMENT MORE SEVERE THAN THAT RECEIVED FROM THE
INFERIOR COURT," ID., AT 117, WE WERE SHOWN NOTHING TO PERSUADE US THAT
"THE HAZARD OF BEING PENALIZED FOR SEEKING A NEW TRIAL, WHICH UNDERLAY
THE HOLDING OF PEARCE, ALSO INHERES IN THE DE NOVO TRIAL ARRANGEMENT." 
ID., AT 116 (EMPHASIS SUPPLIED).  IN SHORT, THE DUE PROCESS CLAUSE WAS
NOT VIOLATED BECAUSE THE POSSIBILITY OF VINDICTIVENESS" WAS NOT FOUND
TO INHERE IN THE TWO-TIER SYSTEM.  IBID. 

THIS CASE, THEN, IS CONTROLLED BY THE INQUIRY INTO POSSIBLE
VINDICTIVENESS COUNSELED BY PEARCE, MOON, AND COLTEN.  THE POTENTIAL
FOR SUCH ABUSE OF THE SENTENCING PROCESS BY THE JURY IS, WE THINK, DE
MINIMIS IN A PROPERLY CONTROLLED RETRIAL.  THE FIRST PREREQUISITE FOR
THE IMPOSITION OF A RETALIATORY PENALTY IS KNOWLEDGE OF THE PRIOR
SENTENCE.  IT HAS BEEN CONCEDED IN THIS CASE THAT THE JURY WAS NOT
INFORMED OF THE PRIOR SENTENCE.  IT HAS BEEN CONCEDED IN THIS CASE THAT
THE JURY WAS NOT INFORMED OF THE PRIOR SENTENCE.  WE HAVE NO REASON TO
SUSPECT THAT THIS IS NOT CUSTOMARY IN A PROPERLY TRIED JURY CASE.  IT
IS MORE LIKELY THAT THE JURY WILL BE AWARE THAT THERE WAS A PRIOR
TRIAL, BUT IT DOES NOT FOLLOW FROM THIS THAT THE JURY WILL KNOW WHETHER
THAT TRIAL WAS ON THE SAME CHARGE, OR WHETHER IT RESULTED IN A
CONVICTION OR MISTRIAL.  /12/  OTHER DISTINGUISHING FACTORS BETWEEN
JURY AND JUDICIAL SENTENCING FURTHER DIMINISH THE POSSIBILITY OF
IMPROPRIETY IN JURY SENTENCING.  AS WAS TRUE IN COLTEN, THE SECOND
SENTENCE IS NOT METED OUT BY THE SAME JUDICIAL AUTHORITY WHOSE HANDLING
OF THE PRIOR TRIAL WAS SUFFICIENTLY UNACCEPTABLE TO HAVE REQUIRED A
REVERSAL OF THE CONVICTION.  THUS, THE JURY, UNLIKE THE JUDGE WHO HAS
BEEN REVERSED, WILL HAVE NO PERSONAL STAKE IN THE PRIOR CONVICTION AND
NO MOTIVATION TO ENGAGE IN SELF-VINDICATION.  SIMILARLY, THE JURY IS
UNLIKELY TO BE SENSITIVE TO THE INSTITUTIONAL INTERESTS THAT MIGHT
OCCASION HIGHER SENTENCES BY A JUDGE DESIROUS OF DISCOURAGING WHAT HE
REGARDS AS MERITLESS APPEALS.  /13/ 

IN LIGHT OF THESE CONSIDERATIONS, AND WHERE IMPROPER AND PREJUDICIAL
INFORMATION REGARDING THE PRIOR SENTENCE IS WITHHELD, /14/  THERE IS NO
BASIS FOR HOLDING THAT JURY RESENTENCING POSES ANY REAL THREAT OF
VINDICTIVENESS.  /15/

        C 

PETITIONER'S FINAL ARGUMENT IS THAT HARSHER SENTENCES ON RETRIAL ARE
IMPERMISSIBLE BECAUSE, IRRESPECTIVE OF THEIR CAUSES AND EVEN CONCEDING
THAT VINDICTIVENESS PLAYS NO DISCERNIBLE ROLE, /16/  THEY HAVE A
"CHILLING EFFECT" ON THE CONVICTED DEFENDANT'S EXERCISE OF HIS RIGHT TO
CHALLENGE HIS FIRST CONVICTION EITHER BY DIRECT APPEAL OR COLLATERAL
ATTACK.  WHAT WE HAVE SAID AS TO PEARCE DEMONSTRATES THAT IT PROVIDES
NO FOUNDATION FOR THIS CLAIM.  TO THE CONTRARY, THE COURT THERE
INTIMATED NO DOUBT ABOUT THE CONSTITUTIONAL VALIDITY OF HIGHER
SENTENCES IN THE ABSENCE OF VINDICTIVENESS DESPITE WHATEVER INCIDENTAL
DETERRENT EFFECT THEY MIGHT HAVE ON THE RIGHT TO APPEAL.  COLTEN
LIKEWISE REPRESENTS A VIEW INCOMPATIBLE WITH PETITIONER'S CONTENTION. 

PETITIONER RELIES INSTEAD ON UNITED STATES V. JACKSON, 390 U.S. 570
(1968), IN WHICH THE COURT HELD UNCONSTITUTIONAL THE CAPITAL PUNISHMENT
PROVISION OF THE FEDERAL ANTIKIDNAPING LAW.  BY LIMITING TO THE JURY
THE POWER TO IMPOSE A DEATH SENTENCE, THE STATUTE "DISCOURAGED" THE
EXERCISE BY THE ACCUSED OF HIS RIGHTS TO TRIAL BY JURY AND TO PLEAD NOT
GUILTY.  ID., AT 581.  THE COURT FOUND THAT THE INTEREST OF THE
GOVERNMENT IN HAVING THE JURY RETAIN THE POWER TO RENDER THE DEATH
PENALTY COULD BE REALIZED WITHOUT THIS IMPOSITION ON THE RIGHTS OF THE
ACCUSED.  THEREFORE, THE SENTENCING STRUCTURE OF THE STATUTE WAS STRUCK
DOWN BECAUSE IT "UNNECESSARILY" AND "NEEDLESSLY CHILLED) THE EXERCISE
OF BASIC CONSTITUTIONAL RIGHTS."  ID., AT 582.  /17/ 

JACKSON DID NOT HOLD, AS SUBSEQUENT DECISIONS HAVE MADE CLEAR, THAT
THE CONSTITUTION FORBITS EVERY GOVERNMENT-IMPOSED CHOICE IN THE
CRIMINAL PROCESS THAT HAS THE EFFECT OF DISCOURAGING THE EXERCISE OF
CONSTITUTIONAL RIGHTS.  IN BRADY V. UNITED STATES, 397 U.S. 742 (1970),
PARKER V. NORTH CAROLINA, 397 U.S. 790 (1970), AND NORTH CAROLINA V.
ALFORD, 400 U.S. 25 (1970), DEFENDANTS ENTERED PLEAS OF GUILTY IN ORDER
TO AVOID THE POTENTIAL IMPOSITION OF DEATH SENTENCES BY A JURY.  EACH
WAS DISSUADED FROM EXERCISING HIS RIGHTS TO A JURY TRIAL AND TO PLEAD
NOT GUILTY.  EACH WAS, IN THAT SENSE, "DISCOURAGED" FROM ASSERTING HIS
RIGHTS, BUT THE COURT FOUND NO CONSTITUTIONAL INFIRMITY DESPITE THE
CLAIM IN EACH CASE THAT JACKSON COMPELLED A CONTRARY RESULT.  BRADY IS
PARTICULARLY INSTRUCTIVE.  THE COURT THERE CANVASSED SEVERAL COMMON
PLEA-BARGAINING CIRCUMSTANCES IN WHICH THE ACCUSED IS CONFRONTED WITH
THE "CERTAINTY OR PROBABILITY" THAT, IF HE DETERMINES TO EXERCISE HIS
RIGHT TO PLEAD INNOCENT AND TO DEMAND A JURY TRIAL, HE WILL RECEIVE A
HIGHER SENTENCE THAN WOULD HAVE FOLLOWED A WAIVER OF THOSE RIGHTS.  397
U.S., AT 751.  ALTHOUGH EVERY SUCH CIRCUMSTANCE HAS A DISCOURAGING
EFFECT ON THE DEFENDANT'S ASSERTION OF HIS TRIAL RIGHTS, THE IMPOSITION
OF THESE DIFFICULT CHOICES WAS UPHELD AS AN INEVITABLE ATTRIBUTE OF ANY
LEGITIMATE SYSTEM WHICH TOLERATES AND ENCOURAGES THE NEGOTIATION OF
PLEAS.  /18/ 

MR. JUSTICE HARLAN'S OPINION FOR THE COURT IN CRAMPTON V. OHIO, A
COMPANION CASE TO MCGAUTHA V. CALIFORNIA, 402 U.S. 183 (1971), DEALS AT
SOME LENGTH WITH THE CONSTITUTIONAL PROBLEMS SURROUNDING THE IMPOSITION
OF DIFFICULT CHOICES IN THE CRIMINAL PROCESS AND IS OF PARTICULAR
RELEVANCE SINCE IT ARISES IN THE CONTEXT OF JURY SENTENCING. 
PETITIONER CRAMPTON ATTACKED THE OHIO SYSTEM OF CONDUCTING CAPITAL
TRIALS.  OHIO ALLOWED THE JURY TO DETERMINE GUILT AND PUNISHMENT IN A
SINGLE TRIAL AND A SINGLE VERDICT, AND CRAMPTON COMPLAINED THAT DUE
PROCESS REQUIRED A BIFURCATED TRIAL BECAUSE IN A SINGLE TRIAL HE COULD
NOT ARGUE HIS CASE FOR MITIGATION OF PUNISHMENT TO THE JURY WITHOUT
FORGOING HIS RIGHT TO REMAIN SILENT ON THE ISSUE OF GUILT.  ID., AT 220
- 221.  THUS, THE FREE EXERCISE OF HIS FIFTH AMENDMENT RIGHT TO REMAIN
SILENT WAS "CHILLED" BY THE PROSPECT THAT A HARSHER JURY SENTENCE MIGHT
ENSUE.  /19/  THE COURT DID NOT AGREE, HOWEVER, THAT THE BURDEN IMPOSED
ON THE RIGHT WAS IMPERMISSIBLE. 

IN TERMS PERTINENT TO THE CASE BEFORE US TODAY, THE COURT IN
CRAMPTON STATED: 

     "THE CRIMINAL PROCESS, LIKE THE REST OF THE LEGAL SYSTEM, IS

  REPLETE WITH SITUATIONS REQUIRING 'THE MAKING OF DIFFICULT

  JUDGMENTS' AS TO WHICH COURSE TO FOLLOW.  . . . . ALTHOUGH A

  DEFENDANT MAY HAVE A RIGHT, EVEN OF CONSTITUTIONAL DIMENSIONS, TO

FOLLOW WHICHEVER COURSE HE CHOOSES, THE CONSTITUTION DOES NOT BY

  THAT TOKEN ALWAYS FORBID REQUIRING HIM TO CHOOSE."  ID., AT 213. 

RECOGNIZING THAT THE INQUIRY, BY ITS VERY NATURE, MUST BE MADE ON A
CASE-BY-CASE BASIS, THE COURT INDICATED THAT THE "THRESHOLD QUESTION IS
WHETHER COMPELLING THE ELECTION IMPAIRS TO AN APPRECIABLE EXTENT ANY OF
THE POLICIES BEHIND THE RIGHTS INVOLVED."  IBID.  THE CHOICE IMPOSED BY
THE OHIO SYSTEM WAS SIMILAR TO THE CHOICE FREQUENTLY FACED BY A
CRIMINAL DEFENDANT IN DECIDING WHETHER TO ASSERT HIS RIGHT TO REMAIN
SIENT.  AND THE FACT THAT THE CONSEQUENCE OF SILENCE MIGHT BE A HARSHER
SENTENCE WAS NOT REGARDED AS A DISTINGUISHING FACTOR. 

THESE CASES, WE THINK, ERASE ANY QUESTION WHETHER JACKSON MIGHT CALL
FOR ABROGATION OF GEORGIA'S UNRESTRICTED JURY-RESENTENCING PROCESS. 
JURY SENTENCING BASED ON EACH JURY'S ASSESSMENT OF THE EVIDENCE IT
HEARS AND APPRAISAL OF THE DEMEANOR AND CHARACTER OF THE ACCUSED, IS A
LEGITIMATE PRACTICE.  SUPRA, AT 21 - 22.  JUST AS IN THE GUILTY-PLEA
CASES AND CRAMPTON, AN INCIDENTAL CONSEQUENCE OF THAT PRACTICE /20/  IS
THAT IT MAY REQUIRE THE ACCUSED TO CHOOSE WHETHER TO ACCEPT THE RISK OF
A HIGHER SENTENCE OR TO WAIVE HIS RIGHTS.  WE SEE NOTHING IN THE RIGHT
TO APPEAL OR THE RIGHT TO ATTACK COLLATERALLY A CONVICTION, EVEN WHERE
CONSTITUTIONAL ERRORS ARE CLAIMED, WHICH ELEVATES THOSE RIGHTS ABOVE
THE RIGHTS TO JURY TRIAL AND TO REMAIN SILENT. 

PETITIONER WAS NOT HIMSELF "CHILLED" IN THE EXERCISE OF HIS RIGHT TO
APPEAL BY THE POSSIBILITY OF A HIGHER SENTENCE ON RETRIAL AND WE DOUBT
THAT THE "CHILL FACTOR" WILL OFTEN BE A DETERRENT OF ANY SIGNIFICANCE. 
UNLIKE THE GUILTY-PLEA SITUATION AND, TO A LESSER EXTENT, THE
NONBIFURCATED CAPITAL TRIAL, THE LIKLIHOOD OF ACTUALLY RECEIVING A
HARSHER SENTENCE IS QUITE REMOTE AT THE TIME A CONVICTED DEFENDANT
BEGINS TO WRIGH THE QUESTION WHETHER HE WILL APPEAL.  SEVERAL
CONTINGENCIES MUST COALESCE.  FIRST, HIS APPEAL MUST SUCCEED.  SECOND,
IT MUST RESULT IN AN ORDER REMANDING THE CASE FOR RETRIAL RATHER THAN
DISMISSING OUTRIGHT.  THIRD, THE PROSECUTOR MUST AGAIN MAKE THE
DECISION TO PROSECUTE AND THE ACCUSED MUST AGAIN SELECT TRIAL BY JURY
RATHER THAN SECURING A BENCH TRIAL OR NEGOTIATING A PLEA.  /21/
FINALLY, THE JURY MUST AGAIN CONVICT AND THEN ULTIMATELY THE JURY OR
THE JUDGE MUST ARRIVE AT A HARSHER SENTENCE IN CIRCUMSTANCES DEVOID OF
A GENUINE LIKELIHOOD OF VINDICTIVENESS.  WHILE IT MAY NOT BE WHOLLY
UNREALISTIC FOR A CONVICTED DEFENDANT TO ANTICIPATE THE OCCURRENCE OF
EACH OF THESE EVENTS, /22/  ESPECIALLY IN THE INFREQUENT CASE IN WHICH
HIS CLAIM FOR REVERSAL IS STRONG AND HIS FIRST SENTENCE WAS UNUSUALLY
LOW, WE CANNOT AGREE WITH PETITIONER THAT SUCH SPECULATIVE PROSPECTS
INTERFERE WITH THE RIGHT TO MAKE A FREE CHOICE WHETHER TO APPEAL. 

        III 

GUIDED BY THE PRECEDENTS OF THIS COURT, THESE ARE THE CONCLUSIONS WE
REACH.  THE RENDITION OF A HIGHER SENTENCE BY A JURY UPON RETRIAL DOES
NOT VIOLATE THE DOUBLE JEOPARDY CLAUSE.  NOR DOES SUCH A SENTENCE
OFFEND THE DUE PROCESS CLAUSE SO LONG AS THE JURY IS NOT INFORMED OF
THE PRIOR SENTENCE AND THE SECOND SENTENCE IS NOT OTHERWISE SHOWN TO BE
A PRODUCT OF VINDICTIVENESS.  THE CHOICE OCCASIONED BY THE POSSIBILITY
OF A HARSHER SENTENCE, EVEN IN THE CASE IN WHICH THE CHOICE MAY IN FACT
BE "DIFFICULT," DOES NOT PLACE AN IMPERMISSIBLE BURDEN ON THE RIGHT OF
A CRIMINAL DEFENDANT TO APPEAL OR ATTACK COLLATERALLY HIS CONVICTION. 

         AFFIRMED. 

/1/  PETITIONER WAS INDICTED UNDER A STATUTE THAT PROVIDED FOR THE
FOLLOWING RANGE OF PUNISHMENTS: 

"ROBBERY BY OPEN FORCE OR VIOLENCE SHALL BE PUNISHED BY DEATH,
UNLESS THE JURY RECOMMENDS MERCY, IN WHICH EVENT PUNISHMENT SHALL BE
IMPRISONMENT IN THE PENITENTIARY FOR LIFE:  PROVIDED, HOWEVER, THE JURY
IN ALL CASES MAY RECOMMEND THAT THE DEFENDANT BE IMPRISONED IN THE
PENITENTIARY FOR NOT LESS THAN FOUR YEARS NOR LONGER THAN 20 YEARS, IN
THE DISCRETION OF THE COURT."  GA. CODE ANN. ^ 26 - 2502 (1935),
REPLACED BY GA. CODE ANN. ^ 26 - 1902 (1972). 

/2/  FOR A DETAILED DESCRIPTION OF THE UNIQUE UNSWORN-STATEMENT
PRACTICE IN GEORGIA SEE FERGUSON V. GEORGIA, 365 U.S. 570 (1961). 

/3/  DURING ORAL ARGUMENT IN THIS COURT, COUNSEL DISAGREED AS TO
WHETHER THE PROSECUTOR ASKED FOR THE DEATH PENALTY AT THE FIRST TRIAL. 
TR. OF ORAL ORG.  13, 26, 32 - 33.  AT THE COURT'S REQUEST, COUNSEL
HAVE FILED POST-ARGUMENT AFFIDAVITS ON THIS QUESTION.  ALTHOUGH THE
CLOSING ARGUMENTS THEMSELVES WERE NOT TRANSCRIBED, THE STATE PROSECUTOR
STATES THAT, WHILE HIS MEMORY IS NOT ENTIRELY CLEAR ON THE MATTER, HIS
NOTES INDICATE, AND HIS CUSTOMARY PRACTICE SUGGESTS, THAT HE ASKED FOR
THE DEATH SENTENCE AT BOTH TRIALS.  ANY REMAINING DOUBT IS FORECLOSED
BY THE AFFIDAVIT FILED BY THE ATTORNEY WHO REPRESENTED PETITIONER
DURING THE FIRST TRIAL.  HE STATES UNEQUIVOCALLY THAT THE PROSECUTOR
ARGUED "VIGOROUSLY" IN FAVOR OF IMPOSITION OF THE DEATH PENALTY DURING
THE CLOSING ARGUMENT IN THAT TRIAL. 

/4/  DURING THE SECOND TRIAL, PETITIONER'S COUNSEL FROM THE FIRST
TRIAL WAS CALLED TO TESTIFY IN PETITIONER'S BEHALF IN SUPPORT OF HIS
INSANITY DEFENSE.  THE SUBSTANCE OF HIS TESTIMONY WAS THAT HE HAD AN
AMPLE OPPORTUNITY TO STUDY PETITIONER DURING THE PREVIOUS PROCEEDINGS
AND THAT HE WAS CONVINCED THAT PETITIONER WAS SUFFERING FROM A "MENTAL
DEFECT."  HE EXPLAINED THAT, DESPITE HIS OWN EVALUATION, HE ACQUIESCED
IN PETITIONER'S REQUEST THAT HE NOT INTERPOSE AN INSANITY DEFENSE AT
THAT TIME. 

/5/  AT THE MOST, THEN, THE JURY MIGHT HAVE SPECULATED AS TO WHETHER
PETITIONER'S RETRIAL WAS THE PRODUCT OF A MISTRIAL OR OF A REVERSAL OF
A PRIOR CONVICTION.  INDEED, COUNSEL FOR RESPONDENT INDICATED AT ORAL
ARGUMENT THAT GEORGIA HAS MANY MORE RETRIALS OCCASIONED BY MISTRIALS
THAN RETRIALS FOLLOWING CONVICTION REVERSALS.  TR. OF ORAL ARG. 38. 

/6/  COMPARE THE FIFTH CIRCUIT OPINION IN THE INSTANT CASE (455 F.
2D 640 (1972)), AND CASIAS V. BETO, 459 F. 2D 54 (CA5 1972), WITH
LEVINE V. PEYTON, 444 F. 2D 525 (CA4 1971), AND PENDERGRASS V. NEIL,
456 F. 2D 469 (CA6 1972) (PET. FOR CERT. PENDING, NO. 71 - 1472). 
STATE COURT DECISIONS ON THIS QUESTION APPEAR UNIFORMLY TO HOLD PEARCE
INAPPLICABLE TO JURY RESENTENCING.  SEE CASES DISCUSSED IN APLIN,
SENTENCE INCREASES ON RETRIAL AFTER NORTH CAROLINA V. PEARCE, 39 U.
CIN.  L. REV. 427, 430 - 432 (1970). 

/7/  GEORGIA IS ONE OF 12 STATES THAT PROVIDE FOR JURY SENTENCING IN
AT LEAST SOME CATEGORIES OF NONCAPITAL FELONY CASES.  APLIN, SUPRA, N.
6, AT 429 AND N. 10. 

/8/  SEE, E. G., STUBBS, JURY SENTENCING IN GEORGIA--TIME FOR A
CHANGE?, 5 GA. ST. B. J. 421 (1969); NOTE, JURY SENTENCING IN VIRGINIA,
53 VA. L. REV. 968 (1967); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT
AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY
145 (1967), AND AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR
CRIMINAL JUSTICE, SENTENCING ALTERNATIVES AND PROCEDURES ^ 1.1
(APPROVED DRAFT 1968) (BOTH RECOMMENDING THE ABOLITION OF JURY
SENTENCING). 

/9/  SEE T. GADDIS, BIRDMAN OF ALCATRAZ (1955); R. STROUD, DISEASES
OF CANARIES (1935); R. STROUD, DIGEST ON THE DISEASES OF BIRDS (1939);
STROUD V. UNITED STATES, 283 F. 2D 137 (CA10 1960), CERT. DENIED, 365
U.S. 864 (1961). 

/10/  BRIEF FOR PETITIONER 9; TR. OF ORAL ARG. 40 - 41. 

/11/  WHILE THERE IS NO PER SE CONSTITUTIONAL RIGHT TO APPEAL, THIS
COURT HAS FREQUENTLY HELD THAT ONCE A STATE ESTABLISHES AN APPELLATE
FORUM IT MUST ASSURE ACCESS TO IT UPON TERMS AND CONDITIONS EQUALLY
APPLICABLE AND AVAILABLE TO ALL.  395 U.S., AT 724; GRIFFIN V.
ILLINOIS, 351 U.S. 12 (1956); DOUGLAS V. CALIFORNIA, 372 U.S. 353
(1963); RINALDI V. YEAGER, 384 U.S. 305 (1966).  SEE ALSO JOHNSON V.
AVERY, 393 U.S. 483 (1969). 

/12/ SEE N. 4, SUPRA, AND ACCOMPANYING TEXT.  SEE ALSO N. 14,
INFRA. 

/13/  FINALLY, DEPENDING UPON THE CIRCUMSTANCES, IT MAY BE A
DESIRABLE PRECAUTION FOR THE TRIAL JUDGE TO GIVE THE SAME INSTRUCTIONS
ON THE RANGE OF PUNISHMENT AT BOTH TRIALS AND FOR THE PROSECUTOR TO
SEEK THE SAME SENTENCE IN EACH CASE.  SEE N. 3, SUPRA. 

IT HAS BEEN SUGGESTED THAT HIGHER SENTENCES ON RETRIAL MIGHT RESULT
FROM VINDICTIVENESS ON THE PART OF THE PROSECUTOR.  AS PUNISHMENT FOR A
SUCCESSFUL APPEAL, FOR INSTANCE, A PROSECUTOR MIGHT RECOMMEND TO THE
JURY, AND STRENUOUSLY ARGUE IN FAVOR OF, A HIGHER SENTENCE THAN HE
PREVIOUSLY SOUGHT.  NO SUCH INDICATION EXISTS ON THIS RECORD SINCE THE
PROSECUTOR VIGOROUSLY URGED THE IMPOSITION OF THE DEATH PENALTY AT THE
FIRST TRIAL.  IN ANY EVENT, IT WOULD BE ERRONEOUS TO INFER A VINDICTIVE
MOTIVE MERELY FROM THE SEVERITY OF THE SENTENCE RECOMMENDED BY THE
PROSECUTOR.  PROSECUTORS OFTEN REQUEST MORE THAN THEY CAN REASONABLY
EXPECT TO GET, KNOWING THAT THE JURY WILL CUSTOMARILY ARRIVE AT SOME
COMPROMISE SENTENCE.  THE PROSECUTOR'S STRATEGY ALSO MIGHT WELL VARY
FROM CASE TO CASE DEPENDING ON SUCH FACTORS AS HIS ASSESSMENT OF THE
JURY'S REACTION TO THE PROOF AND TO THE TESTIMONY OF WITNESSES FOR AND
AGAINST THE STATE.  GIVEN THESE PRACTICAL CONSIDERATIONS, AND
CONSTRAINED BY THE BAR AGAINST HIS INFORMING THE JURY OF THE FACTS OF
PRIOR CONVICTION AND SENTENCE, THE POSSIBILITY THAT A HARSHER SENTENCE
WILL BE OBTAINED THROUGH PROSECUTORIAL MALICE SEEMS REMOTE.  SEE
WILLIAMS V. MCMANN, 436 F. 2D 103, 105 - 106 (CA2 1970). 

/14/  THE STATE AGREED AT ORAL ARGUMENT THAT IT WOULD BE IMPROPER TO
INFORM THE JURY OF THE PRIOR SENTENCE AND THAT PEARCE MIGHT BE APPLIED
IN A CASE IN WHICH, EITHER BECAUSE OF THE HIGHLY PUBLICIZED NATURE OF
THE PRIOR TRIAL OR BECAUSE OF SOME OTHER IRREGULARITY, THE JURY WAS SO
INFORMED.  TR. OF ORAL ARG. 39.  WE DO NOT DECIDE, HOWEVER, WHETHER
IMPROPERLY INFORMING THE JURY WOULD ALWAYS REQUIRE LIMITATION OF THE
SENTENCE OR WHETHER SUCH ERROR MIGHT BE CURED BY CAREFUL QUESTIONING OF
THE JURY VENIRE OR BY A CAUTIONARY JURY INSTRUCTION. 

/15/  BECAUSE WE HAVE CONCLUDED THAT JURY SENTENCING IS NOT
SUSCEPTIBLE TO THE ABUSE THAT PROMPTED THE PEARCE DECISION, WE NEED NOT
CONSIDER WHAT REMEDY WOULD BE REQUIRED IF JURY SENTENCING WERE
SUBJECTED TO PEARCE-TYPE RESTRICTIONS.  IT IS SUFFICIENT HERE TO NOTE
THAT BECAUSE THE INSTITUTION OF JURY SENTENCING IS UNLIKE JUDICIAL
SENTENCING IN A NUMBER OF FUNDAMENTAL WAYS THOSE RESTRICTIONS MAY NOT
BE EASILY INVOKED.  NORMALLY, THERE WOULD BE NO WAY FOR A JURY TO PLACE
ON THE RECORD THE REASONS FOR ITS COLLECTIVE SENTENCING DETERMINATION,
AND ORDINARILY THE RESENTENCING JURY WOULD NOT BE INFORMED OF ANY
CONDUCT OF THE ACCUSED UNLESS RELEVANT TO THE QUESTION OF GUILT.  SEE
NOTE, SUPRA, N. 8, AT 978 - 980; STUBBS, SUPRA, N. 8, AT 428 - 429;
LAFONT, ASSESSMENT OF PUNISHMENT--A JUDGE OR JURY FUNCTION?, 38 TEX. L.
REV. 835, 837 - 842 (1960).  THESE IMPORTANT DIFFERENCES WOULD NOT BE
ENTIRELY OVERCOME BY REQUIRING THAT JURY TRIALS BE BIFURCATED AS
SUGGESTED BY THE SIXTH CIRCUIT IN PENDERGRASS V. NEIL, 456 F. 2D, AT
472 (PET. FOR CERT. PENDING, NO. 71 - 1472).  WHILE SOME JURY
SENTENCING STATES HAVE ADOPTED BIFURCATED JURY TRIALS, IN WHICH THE
JURY ASSESSES THE PUNISHMENT IN A SEPARATE PROCEEDING AFTER A VERDICT
OF GUILTY HAS BEEN RENDERED (SEE APLIN, SUPRA, N. 6, AT 430, 441 - 442;
GA. CODE ANN. ^ 27 - 2534 (1972)), BIFURCATION ALONE WOULD NOT WIPE
AWAY THE FUNDAMENTAL DIFFERENCES BETWEEN JURY AND JUDICIAL SENTENCING. 
IT MAY MAKE LITTLE SENSE TO SUPPLY THE JURY WITH INFORMATION ABOUT THE
DEFENDANT'S CONDUCT IF THE GOAL OF JURY SENTENCING IS NOT NECESSARILY
TO FIT THE PUNISHMENT TO THE OFFENDER, AND IF THE JURY IS, THEREFORE,
NOT CONCERNED ABOUT MATTERS CONSIDERED PERTINENT TO JUDICIAL
SENTENCING. 

PETITIONER AND RECENT COURT OF APPEALS CASES SUGGEST THAT AN
APPROXIMATION OF THE PEARCE LIMITATIONS COULD BE REALIZED EITHER BY
INSTRUCTING THE JURY THAT IT MAY RETURN NO VERDICT HIGHER THAN THE
FORMER SENTENCE, OR BY EMPOWERING THE JUDGE TO REDUCE THE SECOND
SENTENCE WHENEVER IT EXCEEDS THE FORMER SENTENCE.  SEE LEVINE V.
PEYTON, 444 F. 2D 525 (CA4 1971); PENDERGRASS V. NEIL, SUPRA.  ALTHOUGH
THESE ALTERNATIVES WOULD PROVIDE AN ABSOLUTE PROTECTION ORDINARY
SENTENCING DISCRETION IN A MANNER MORE INTRUSIVE THAN CONTEMPLATED BY
PEARCE.  THEY WOULD ACHIEVE, IN THE NAME OF DUE PROCESS, THE SUBSTANCE
OF THE RESULT WE HAVE DECLINED TO APPROVE UNDER THE DOUBLE JEOPARDY
CLAUSE. 

/16/  DURING ORAL ARGUMENT, TR. OF ORAL ARG. 11 - 12, PETITIONER'S
COUNSEL SEEMED TO CONCEDE THE ABSENCE OF AN IMPROPER MOTIVATION ON THE
JURY'S PART: 

"QUESTION.  DID THE JURY KNOW ANYTHING ABOUT THE FIRST TRIAL? 

"(PETITIONER'S COUNSEL).  NO, THEY DID NOT. 

    .          .          .          .          . 

"QUESTION.  WAS THERE ANY POSSIBILITY OF VINDICTIVENESS? 

"(PETITIONER'S COUNSEL).  THERE IS NONE, OBVIOUSLY NOT. 

"QUESTION.  WHY NOT? 

"(PETITIONER'S COUNSEL).  BECAUSE THE JURY DID NOT KNOW (ABOUT) THE
FIRST SENTENCE." 

/17/  IN BRADY V. UNITED STATES, 397 U.S. 742 (1970), THE COURT
SUCCINCTLY ARTICULATED THE NARROW HOLDING IN JACKSON: "BECAUSE THE
LEGITIMATE GOAL OF LIMITING THE DEATH PENALTY TO CASES IN WHICH A JURY
RECOMMENDS IT COULD BE ACHIEVED WITHOUT PENALIZING THOSE DEFENDANTS WHO
PLEAD NOT GUILTY AND ELECT A JURY TRIAL, THE DEATH PENALTY PROVISION
'NEEDLESSLY PENALIZED) THE ASSERTION OF A CONSTITUTIONAL RIGHT.'"  ID.,
AT 746 (EMPHASIS SUPPLIED). 

/18/  THE LEGITIMACY OF THE PRACTICE OF "PLEA BARGAINING," AS THE
COURT NOTED LAST TERM IN SANTOBELLO V. NEW YORK, 404 U.S. 257 (1971),
HAS NOT BEEN DOUBTED AND WHERE "PROPERLY ADMINISTERED" IT IS TO BE
"ENCOURAGED" AS AN "ESSENTIAL" AND "DESIRABLE" "COMPONENT OF THE
ADMINISTRATION OF JUSTICE."  ID., AT 260 - 261.  SEE ALSO BRADY V.
UNITED STATES, 397 U.S., AT 751 - 753. 

/19/  THE CASE WAS ARGUED ON THE THEORY THAT THE OHIO SINGLE
PROCEEDING CREATED A "TENSION BETWEEN CONSTITUTIONAL RIGHTS," 402 U.S.,
AT 211, SIMILAR TO THAT INVOLVED IN SIMMONS V. UNITED STATES, 390 U.S.
377 (1968).  THE COURT DECLINED TO DECIDE THE CASE IN THOSE TERMS, 402
U.S., AT 212 - 213, BUT FOCUSED INSTEAD ON THE EXTENT TO WHICH THE LACK
OF A BIFURCATED PROCEEDING CREATED A BURDEN ON THE EXERCISE OF THE
RIGHT TO REMAIN SILENT, OR, STATED DIFFERENTLY, ENCOURAGED ITS WAIVER. 
ID., AT 213 - 217. 

/20/  WE REITERATE THAT WE ARE DEALING HERE ONLY WITH THE CASE IN
WHICH JURY SENTENCING IS UTILIZED FOR LEGITIMATE PURPOSES AND NOT AS A
MEANS OF PUNISHING OR PENALIZING THE ASSERTION OF PROTECTED RIGHTS. 
JACKSON AND PEARCE ARE CLEAR AND SUBSEQUENT CASES HAVE NOT DULLED THEIR
FORCE:  IF THE ONLY OBJECTIVE OF A STATE PRACTICE IS TO DISCOURAGE THE
ASSERTION OF CONSTITUTIONAL RIGHTS IT IS "'PATENTLY
UNCONSTITUTIONAL.'"  SHAPIRO V. THOMPSON, 394 U.S. 618, 631 (1969). 

/21/  A FOOTNOTE IN THE COURT OF APPEALS OPINION INDICATES THAT
PETITIONER ARGUED IN THAT COURT THAT UNRESTRICTED JURY RESENTENCING
WOULD HAVE AN IMPERMISSIBLE "CHILLING EFFECT" ON HIS RIGHT TO SELECT A
JURY TRIAL UPON RETRIAL.  455 F. 2D, AT 641 N. 7.  ALTHOUGH THIS
ARGUMENT IS NOT MENTIONED IN HIS APPELLATE BRIEF IN THIS COURT,
PETITIONER'S COUNSEL TOUCHED ON IT BRIEFLY AT ORAL ARGUMENT.  TR. OF
ORAL ARG. 13 - 14.  WHAT WE HAVE SAID HERE REGARDING THE COLLECTIVE
FORCE OF PEARCE, COLTEN, THE GUILTY-PLEA CASES, AND CRAMPTON SHOULD
MAKE CLEAR THAT THIS CLAIM IS WITHOUT MERIT.  JACKSON IS NOT TO THE
CONTRARY.  UNLIKE THAT CASE, THE CHOICE HERE IS SUBJECT TO CONSIDERABLE
SPECULATION.  APPLYING PEARCE, THE JUDGE MAY OR MAY NOT GIVE A SENTENCE
AS HIGH AS THE JURY MIGHT GIVE.  MORE IMPORTANTLY, THE DISCOURAGING
EFFECT CANNOT BE SAID TO BE "NEEDLESS."  390 U.S., AT 583.  THE
PARAMETERS OF JUDGE AND JURY SENTENCING POWER, GIVEN THE BINDING NATURE
OF PEARCE, CAN ONLY BE MADE CONTERMINOUS BY EITHER (1) RESTRICTING THE
JURY'S POWER OF INDEPENDENT ASSESSMENT, OR (2) REQUIRING JURY
SENTENCING IN EVERY FELONY CASE IRRESPECTIVE WHETHER GUILT IS
DETERMINED BY A BENCH TRIAL OR A GUILTY PLEA AFTER REVERSAL OF THE
CONVICTION.  EITHER ALTERNATIVE WOULD INTERFERE WITH CONCEDEDLY
LEGITIMATE STATE INTERESTS, AND THUS THE BURDEN IMPOSED ON THE RIGHT TO
TRIAL BY JURY IS NO LESS "NECESSARY," POST, AT 44 - 46, THAN THE
BURDENS TOLERATED IN BRADY AND CRAMPTON.  WHERE THE BURDEN OF THE
CHOICE IS AS SPECULATIVE AS THIS ONE IS, SUCH INCURSIONS UPON VALID
STATE INTERESTS ARE NOT JUSTIFIED. 

/22/  IN PRACTICAL TERMS, AS THOSE CLOSEST TO THE CRIMINAL APPELLATE
PROCESS WELL KNOW (SEE HERMANN, FRIVOLOUS CRIMINAL APPEALS, 47 N.Y.U.L.
REV. 701 (1972); CARRINGTON, CROWDED DOCKETS AND THE COURTS OF APPEALS:
THE THREAT TO THE FUNCTION OF REVIEW AND THE NATIONAL LAW, 82 HARV. L.
REV. 542 (1969)), THE LIKLIHOOD THAT A CONVICTED DEFENDANT WILL FORGO
HIS RIGHT TO APPEAL OR TO ATTACK COLLATERALLY HIS CONVICTION HAS BEEN
DIMINISHING IN RECENT YEARS, IN PART AS A CONSEQUENCE OF DECISIONS
REMOVING ROADBLOCKS AND DISINCENTIVES TO APPEAL.  SEE, E. G., GRIFFIN
V. ILLINOIS, 351 U.S. 12 (1956); DOUGLAS V. CALIFORNIA, 372 U.S. 353
(1963); ANDERS V. CALIFORNIA, 386 U.S. 738 (1967); JOHNSON V. AVERY,
393 U.S. 483 (1969); YOUNGER V. GILMORE, 404 U.S. 15 (1971).  AVAILABLE
STATISTICAL EVIDENCE, FROM BOTH THE FEDERAL AND STATE CRIMINAL SYSTEMS,
DEMONSTRATES THAT THE VOLUME AND RATE OF APPEAL HAVE RISEN STEADILY
OVER THE LAST FEW YEARS.  IN A CRIMINAL SYSTEM IN WHICH APPEAL IS THE
RULE RATHER THAN THE EXCEPTION, THE POSSIBILITY OF A HIGHER SENTENCE IS
A REMOTE CONSIDERATION.  SEE AMERICAN BAR ASSOCIATION PROJECT ON
STANDARDS FOR CRIMINAL JUSTICE, CRIMINAL APPEALS 19 - 21 (APPROVED
DRAFT 1970) ("THE TREND TODAY IS CLEARLY TOWARD A MUCH HIGHER RATE OF
APPEAL"); ADMINISTRATIVE OFFICE OF THE U.S. COURTS, 1972 ANNUAL REPORT
OF THE DIRECTOR II - 11 (DIRECT CRIMINAL APPEALS IN 1972 UP NEARLY 25%
FROM 1971); CARRINGTON, SUPRA, AT 545 (APPROXIMATELY A 200% INCREASE IN
FEDERAL DIRECT APPEALS FROM 1959 - 1960 TO 1966 - 1967). 

MR. JUSTICE DOUGLAS DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN MOON V. MARYLAND, 398 U.S. 319, 321 (1970).  HE ALSO AGREES
WITH MR. JUSTICE STEWART AND MR. JUSTICE MARSHALL THAT ESTABLISHING ONE
RULE FOR RESENTENCING BY JUDGES AND ANOTHER FOR RESENTENCING BY JURIES
BURDENS THE DEFENDANT'S RIGHT TO CHOOSE TO BE TRIED BY A JURY AFTER A
SUCCESSFUL APPEAL.  UNITED STATES V. JACKSON, 390 U.S. 570 (1968). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

IN NORTH CAROLINA V. PEARCE, 395 U.S. 711, 725, THE COURT HELD THAT
"VINDICTIVENESS AGAINST A DEFENDANT FOR HAVING SUCCESSFULLY ATTACKED
HIS FIRST CONVICTION MUST PLAY NO PART IN THE SENTENCE HE RECEIVES
AFTER A NEW TRIAL."  AS I SEE IT, THERE IS A REAL DANGER OF SUCH
VINDICTIVENESS EVEN WHEN A JURY RATHER THAN A JUDGE IMPOSES THE
SENTENCE AFTER RETRIAL.  BECAUSE THE COURT TODAY DECLINES TO REQUIRE
ANY PROCEDURES TO ELIMINATE THAT DANGER, EVEN THOUGH PROCEDURES QUITE
SIMILAR TO THOSE ADOPTED IN PEARCE COULD READILY BE APPLIED WITHOUT
SACRIFICING THE VALUES OF JURY SENTENCING, I MUST DISSENT. 

THE TRUE THREAT OF VINDICTIVENESS AT A RETRIAL WHERE THE JURY METES
OUT THE SENTENCE COMES FROM THE TRIAL JUDGE AND PROSECUTOR.  EITHER OR
BOTH MIGHT HAVE PERSONAL AND INSTITUTIONAL REASONS FOR DESIRING TO
PUNISH A DEFENDANT WHO HAS SUCCESSFULLY CHALLENGED HIS CONVICTION.  OUT
OF VINDICTIVENESS THE PROSECUTOR MIGHT WELL ASK FOR A SENTENCE MORE
SEVERE THAN THAT METED OUT AFTER THE FIRST TRIAL, AND A JUDGE BY THE
MANNER IN WHICH HE CHARGES THE JURY MIGHT INFLUENCE THE JURY TO IMPOSE
A HIGHER SENTENCE AT THE SECOND TRIAL.  IN THE PRESENT CASE, FOR
EXAMPLE, WHILE THE PETITIONER WAS SENTENCED TO 15 YEARS' IMPRISONMENT
AFTER HIS FIRST TRIAL, ON RETRIAL THE PROSECUTOR ASKED THE JURY TO
IMPOSE THE DEATH PENALTY, AND THE JUDGE INSTRUCTED THE JURORS THAT THEY
COULD INFLICT THAT PUNISHMENT.  IT IS SAID THAT THE PROSECUTOR AND
JUDGE GAVE THE JURY THE OPTION TO IMPOSE CAPITAL PUNISHMENT AT THE
RETRIAL SIMPLY AS A TACTICAL MOVE TO ASSURE THAT THE PETITIONER WOULD
AGAIN RECEIVE AT LEAST A 15-YEAR SENTENCE.  BUT IT IS NOT INCONCEIVABLE
IN THIS SETTING THAT A PROSECUTOR OR A JUDGE MIGHT SEEK TO SECURE A
HIGHER SENTENCE FOR A DEFENDANT IN ORDER TO PUNISH HIM FOR HIS
SUCCESSFUL APPEAL.  /1/ 

IT WAS TO PURGE THAT POSSIBILITY OF RETALIATION THAT PEARCE REQUIRED
PROPHYLACTIC MEASURES FOR JUDICIAL SENTENCING.  WITHOUT SUCH
PROCEDURES, AS THE COURT POINTED OUT IN PEARCE, IT WOULD BE EXTREMELY
DIFFICULT FOR A DEFENDANT TO ESTABLISH THAT HIS HIGHER SENTENCE WAS THE
RESULT OF A RETALIATORY MOTIVATION. 

I AGREE WITH THE COURT TODAY THAT SOME MEASURES ARE ILL-SUITED TO
ELIMINATING THE POSSIBILITY OF RETALIATION IN A CASE WHERE THE JURY
IMPOSES THE SENTENCE.  FOR EXAMPLE, THE JURY OUGHT NOT TO BE TOLD THAT
ITS SENTENCING POWER IS LIMITED BY THE TERM IMPOSED AT THE FIRST TRIAL,
FOR THE JURY MIGHT THEN IMPOSE A LESS SEVERE SENTENCE IN REACHING A
COMPROMISE VERDICT.  BUT THERE IS NO REASON WHY THE TRIAL JUDGE SHOULD
NOT BE COMPELLED TO REDUCE ANY SENTENCE IMPOSED BY THE JURY AFTER
RETRIAL TO THAT IMPOSED AFTER THE FIRST TRIAL, UNLESS HE CAN
AFFIRMATIVELY SET FORTH THE KIND OF REASONS REQUIRED IN PEARCE FOR THE
INCREASED SENTENCE.  "THOSE REASONS MUST BE BASED UPON OBJECTIVE
INFORMATION CONCERNING IDENTIFIABLE CONDUCT ON THE PART OF THE
DEFENDANT OCCURRING AFTER THE TIME OF THE ORIGINAL SENTENCING
PROCEEDING."  395 U.S., AT 726. 

AS IN PEARCE, THAT PROCEDURE WOULD SERVE TO MINIMIZE THE POSSIBILITY
THAT VINDICTIVENESS HAD PLAYED A ROLE IN THE SENTENCE A DEFENDANT
RECEIVED AFTER A NEW TRIAL, AND IT WOULD FREE A CONVICTED MAN FROM THE
FEAR THAT A SUCCESSFUL CHALLENGE TO HIS CONVICTION MIGHT LEAD TO A
VINDICTIVELY IMPOSED HARSHER SENTENCE AFTER A SECOND TRIAL.  SINCE THIS
MEASURE WOULD, AT THE MOST, REINSTATE THE SENTENCE IMPOSED BY THE
ORIGINAL JURY, NONE OF THE BASIC PURPOSES SERVED BY JURY SENTENCING
WOULD BE JEOPARDIZED. 

I ALSO AGREE WITH MY BROTHER MARSHALL THAT ALLOWING A MORE SEVERE
SENTENCE TO BE IMPOSED BY A JURY ON RETRIAL, WHEN THAT SENTENCE WOULD
BE IMPERMISSIBLE FOR A JUDGE TO IMPOSE, IS AN INFRINGEMENT UPON A
DEFENDANT'S CONSTITUTIONAL RIGHT TO A JURY TRIAL.  SEE UNITED STATES V.
JACKSON, 390 U.S. 570.  REQUIRING THAT A JUDGE REDUCE A JURY-IMPOSED
SENTENCE TO THAT IMPOSED AFTER THE FIRST TRIAL, UNLESS HE CAN MAKE THE
KIND OF FINDINGS REQUIRED BY PEARCE, WOULD ELIMINATE THAT ILLEGITIMATE
BURDEN UPON A CONSTITUTIONAL RIGHT.     /1/  THE COURT FINDS THE
POSSIBILITY OF PROSECUTORIAL MALICE "REMOTE."  ANTE, AT 27.  THE ONLY
BASIS FOR THAT CONCLUSION APPEARS TO BE THAT THE PROSECUTOR MAY HAVE
QUITE INNOCENT STRATEGIC REASONS FOR REQUESTING AN INCREASED SENTENCE
AFTER A RETRIAL.  BUT THAT DOES NOT FORCLOSE THE POSSIBILITY THAT A
PROSECUTOR MIGHT HAVE QUITE VINDICTIVE REASONS FOR SEEKING A MORE
SEVERE PENALTY, AND IT UNDERLINES THE EXTRAORDINARILY DIFFICULTY A
DEFENDANT WOULD HAVE IN ATTEMPTING TO PROVE A RETALIATORY MOTIVATION. 

MR. JUSTICE MARSHALL, DISSENTING.     I CANNOT AGREE WITH THE COURT
THAT IT IS PERMISSIBLE FOR A JURY, BUT NOT FOR A JUDGE, TO GIVE A
DEFENDANT ON HIS RETRIAL A SENTENCE MORE SEVERE THAN THE ONE HE
RECEIVED IN HIS FIRST TRIAL, WITHOUT SPECIFYING PARTICULAR ASPECTS OF
HIS BEHAVIOR SINCE THE TIME OF HIS FIRST TRIAL THAT JUSTIFY THE
ENHANCED SENTENCE.  SUCH A RULE IS DEFECTIVE IN TWO WAYS.  FIRST, THE
COURT ACKNOWLEDGES THAT A JURY VIOLATES THE CONSTITUTION WHEN IT GIVES
SUCH A DEFENDANT A MORE SEVERE SENTENCE TO PUNISH HIM FOR SUCCESSFULLY
TAKING AN APPEAL.  ANTE, AT 26 - 28.  YET, WHEN THE COSTS, IN TERMS OF
OTHER VALUES SERVED BY JURIES, OF THE METHODS PREVENTING, DETECTING,
AND REMEDYING THAT KIND OF VIOLATION ARE BALANCED AGAINST THE MINOR
DEGREE TO WHICH RESTRICTIONS ON JURY RESENTENCING IMPAIR THE VALUES
SERVED BY JURY SENTENCING, THE NEED TO VINDICATE THE CONSTITUTIONAL
RIGHT WARRANTS RESTRICTIONS ON JURIES SIMILAR TO THOSE WE PLACED ON
JUDGES IN NORTH CAROLINA V. PEARCE, 395 U.S. 711 (1969).  SECOND, AS IN
UNITED STATES V. JACKSON, 390 U.S. 570 (1968), THE POSSIBILITY THAT A
JURY MIGHT INCREASE A SENTENCE FOR REASONS THAT WOULD BE UNAVAILABLE TO
A JUDGE UNNECESSARILY BURDENS THE DEFENDANT'S RIGHT TO CHOOSE A JURY
TRIAL.  I THEREFORE RESPECTFULLY DISSENT. 

I BEGIN WITH WHAT APPEARS TO BE A COMMON GROUND.  IF THE JURY ON
RETRIAL HAS BEEN INFORMED OF THE DEFENDANT'S PRIOR CONVICTION AND
SENTENCE, THE POSSIBILITY IS REAL THAT IT WILL ENHANCE HIS PUNISHMENT
SIMPLY BECAUSE HE SUCCESSFULLY APPEALED.  THE COURT APPARENTLY AGREES,
ANTE, AT 27 N. 13, 28 - 29, NN. 14 - 15, AND SUGGESTS THAT A VARIETY OF
PREVENTIVE AND REMEDIAL MEASURES MUST BE TAKEN TO MINIMIZE THAT
POSSIBILITY.  THOSE MEASURES, I BELIEVE, ARE TOO INTRUSIVE ON THE
PROCESS OF SELECTING THE JURY AND INSULATING ITS DELIBERATIONS FROM
INQUIRY.  IN PEARCE WE DEVISED A REMEDY FOR JUDICIAL VINDICTIVENESS IN
SENTENCING THAT WAS BROADER THAN THE CONSTITUTIONAL VICE, BECAUSE A
REMEDY MORE CLOSELY TAILORED TO THE VICE WOULD TOO SEVERELY INTRUDE ON
THE PROCESS BY WHICH THE JUDGE MADE HIS SENTENCING DECISIONS.  A
SIMILAR REMEDY IS JUSTIFIED FOR THE SAME REASONS IN THE CASE OF JURY
RESENTENCING. 

OF COURSE A JURY THAT DOES NOT KNOW OF A PRIOR CONVICTION AND
SENTENCE CANNOT TAKE THEM INTO ACCOUNT WHEN IT RESENTENCES THE
OFFENDER.  BUT THERE IS A REAL POSSIBILITY THAT A JURY WILL KNOW OF A
PRIOR SENTENCE AND WILL ENHANCE THE PUNISHMENT IT IMPOSES OUT OF
VINDICTIVENESS AS THE COURT APPARENTLY CONCEDES IN LIMITING ITS HOLDING
TO "PROPERLY CONTROLLED RETRIALS."  ANTE.  AT 26.  AND ONLY WHEN THE
POSSIBILITY OF VINDICTIVENESS CAN CONFIDENTLY BE SAID TO BE DE MINIMIS
CAN PEARCE BE DISTINGUISHED.  EVEN IN PEARCE WE ACKNOWLEDGED THE
DIFFICULTY IN ESTABLISHING THAT SENTENCES WERE FREQUENTLY ENHANCED OUT
OF VINDICTIVENESS.  395 U.S., AT 725 N. 20.  INDEED, WE COULD CITE ONLY
STUDIES THAT SHOWED THAT INCREASED SENTENCES ON RECONVICTION WERE "FAR
FROM RARE," IBID.; WE HAD BEFORE US NO EVIDENCE AT ALL THAT
VINDICTIVENESS ACTUALLY PLAYED A PART IN A SUBSTANTIAL NUMBER OF CASES
WHERE SENTENCES WERE INCREASED.  /1/ 

GIVEN THE POSSIBILITY OF VINDICTIVENESS, A DEFENDANT IS ENTITLED TO
A REMEDY DESIGNED TO ELIMINATE, OR AT LEAST MINIMIZE, THAT
POSSIBILITY.  IT FOLLOWS, I BELIEVE, THAT THE DEFENSE IS ENTITLED
TOHAVE PROSPECTIVE JURORS ASKED CAREFULLY FRAMED QUESTIONS DESIGNED TO
EXPLORE THEIR KNOWLEDGE OF A PRIOR CONVICTION AND SENTENCE.  CF. HAM V.
SOUTH CAROLINA, 409 U.S. 524 (1973).  BUT IT WILL INEVITABLY BE
DIFFICULT TO FRAME QUESTIONS THAT WILL DO SO WITHOUT INFORMING THE
JURORS OF THOSE FACTS IN THE VERY ACT OF QUESTIONING THEM.  IN
ADDITION, THE RIGHT TO HAVE QUESTIONS ASKED OF PROSPECTIVE JURORS WOULD
BE MEANINGLESS UNLESS THE DEFENSE COULD CHALLENGE JURORS FOR CAUSE
SOLELY ON THE BASIS OF THE ANSWERS TO THOSE QUESTIONS.  YET NEARLY ALL
OF THE STATES IN WHICH JURY SENTENCING IS REQUIRED HAVE LARGE RURAL
AREAS, /2/  WHERE IT IS QUITE LIKELY THAT A RETRIAL AFTER A SUCCESSFUL
APPEAL WILL BE A NOTORIOUS PUBLIC EVENT.  IT SEEMS TO ME PROBABLE,
THEN, THAT THE RIGHT RECOGNIZED BY THE COURT WILL SUBSTANTIALLY IMPEDE
EXPEDITIOUS SELECTION OF JURIES, FOR IT WILL GENERALLY BE EASY TO MAKE
A THRESHOLD SHOWING OF LOCAL PUBLICITY, AND MAY OFTEN SO SEVERELY LIMIT
THE NUMBER OF AVAILABLE JURORS AS TO RAISE SERIOUS QUESTIONS OF THE
REPRESENTATIVENESS OF THE JURY FINALLY CHOSEN.  /3/ 

THE COURT SUGGESTS THAT A CURATIVE INSTRUCTION MIGHT MINIMIZE THE
POSSIBILITY THAT THE JURY WILL BE IMPROPERLY INFLUENCED BY ITS
KNOWLEDGE OF A PRIOR CONVICTION OR SENTENCE.  ANTE, AT 28 N. 14.  WE
HAVE ALREADY RECOGNIZED, HOWEVER, THAT IT IS QUITE UNREALISTIC TO
BELIEVE THAT INSTRUCTIONS TO DISREGARD EVIDENCE THAT A JURY MIGHT TREAT
IN A MANNER HIGHLY PREJUDICIAL TO A DEFENDANT WILL OFTEN BE FOLLOWED. 
JACKSON V. DENNO, 378 U.S. 368, 388 - 389 (1964); BRUTON V. UNITED
STATES, 391 U.S. 123, 128 - 137 (1968).  CF. E. MORGAN, SOME PROBLEMS
OF PROOF UNDER THE ANGLO-AMERICAN SYSTEM OF LITIGATION 105 (1956).  AND
CURATIVE INSTRUCTIONS MAY SERVE ONLY TO HIGHLIGHT THE PROBLEM.  NOT
EVERY SUCH INSTRUCTION IS INEFFECTIVE, OF COURSE, BUT I WOULD NOT
BURDEN THE JUDICIAL PROCESS WITH DIFFICULT INQUIRIES INTO THE
EFFECTIVENESS OF SUCH AN INSTRUCTION WHERE, AS HERE, THE STATE'S
INTEREST IN HAVING SENTENCES IMPOSED BY A JURY CAN EASILY BE SATISFIED
WITHOUT REQUIRING SUCH INQUIRIES.  SEE INFRA, AT 43. 

FINALLY, A POST-SENTENCING INQUIRY OF A JURY THAT IMPOSES A MORE
SEVERE SENTENCE MIGHT DISCLOSE THAT VINDICTIVENESS PLAYED NO PART IN
ITS SENTENCING DECISION.  BUT THIS COULD BE ACHIEVED ONLY BY
SACRIFICING THE TRADITIONAL SECRECY OF JURY DELIBERATIONS.  CF. CLARK
V. UNITED STATES, 289 U.S. 1 (1933), AND CASES CITED THEREIN. 

BECAUSE OF THE DIFFERING INSTITUTIONAL POSITIONS OF JUDGE AND JURY,
/4/  AND BECAUSE THE JURY THAT SENTENCES ALSO CONVICTS AND SO FOCUSES
ON THE FACTS OF THE OFFENSE, THE QUESTION OF APPLYING THE LIMITATIONS
IMPOSED BY PEARCE ON RESENTENCING BY JUDGES TO RESENTENCING BY JURIES
WOULD SURELY BE A CLOSE ONE, IF ONLY THE ISSUE OF POSSIBLE
VINDICTIVENESS WERE INVOLVED.  SINCE NO STATE INTERESTS IN JURY
SENTENCING WOULD BE IMPAIRED TO ANY SIGNIFICANT DEGREE BY IMPOSING SUCH
LIMITATIONS, HOWEVER, THE QUESTION SHOULD BE RESOLVED IN FAVOR OF
LIMITING THE JURY'S POWER. 

ONE GROUP OF POLICIES UNDERLYING JURY SENTENCING DERIVES FROM THE
BELIEF THAT JURIES WILL BE MORE HUMANE AND COMPASSIONATE THAN JUDGES:
JUDGES, IT IS SAID, REPRESENT A CENTRALIZED GOVERNMENT REMOTE FROM THE
DETAILS OF LOCAL LIFE; JUDGES WHO OFTEN MUST SEEK RE-ELECTION MAY BE
UNDULY SWAYED BY POLITICAL CONSIDERATIONS THAT HAVE LITTLE IMPACT ON
JURORS; AND JUDGES WHO ROUTINELY DEAL WITH CRIMINAL CASES MAY BECOME
CALLOUS AND INSENSITIVE TO THE HUMAN PROBLEMS OF DEFENDANTS.  IN
CONTRAST, THE JURY HAS CLOSE TIES TO THE LOCAL COMMUNITY, AND BECAUSE
IT SITS ONLY ONCE AND THEN DISSOLVES, ITS MEMBERS ORDINARILY HAVE
LITTLE EXPERIENCE WITH CRIMINAL OFFENDERS.  CF. NOTE, JURY SENTENCING
IN VIRGINIA, 53 VA. L. REV. 968, 988 - 991 (1967).  IT IS SOMEWHAT
ANOMALOUS, HOWEVER, TO CONTEND THAT BECAUSE JURIES ARE MORE
COMPASSIONATE THAN JUDGES, THEY MAY IMPOSE A SENTENCE MORE SEVERE THAN
A JUDGE MAY CONSTITUTIONALLY IMPOSE.  I CANNOT UNDERSTAND, THEREFORE,
HOW THE BELIEF THAT JURIES ARE MORE COMPASSIONATE THAN JUDGES JUSTIFIES
A RULE THAT PERMITS A JURY ON RETRIAL TO IMPOSE A SENTENCE MORE SEVERE
THAN THAT IMPOSED BY THE ORIGINAL JURY. 

THE SECOND POLICY IMPLICATED IN JURY SENTENCING IS THAT THE JURY
SERVES AS A "LINK BETWEEN CONTEMPORARY COMMUNITY VALUES AND THE PENAL
SYSTEM," WITHERSPOON V. ILLINOIS, 391 U.S. 510, 519 N. 15 (1968).  MORE
ACCURATELY THAN A JUDGE, THE JURY REFLECTS THE COMMUNITY'S MORAL
ATTITUDE TOWARD THE PARTICULAR OFFENDER.  THE JURY'S FUNCTION IN
SENTENCING, THEN, IS TO MAKE THE PUNISHMENT FIT THE CRIME, NOT THE
CRIMINAL.  LIMITATIONS ON THE SENTENCES A JURY MIGHT IMPOSE DO IMPAIR
ITS ABILITY TO DECIDE WHAT PUNISHMENT FITS THE CRIME BEFORE IT.  BUT IN
CASES LIKE THIS ONE, ONE JURY HAS ALREADY DETERMINED WHAT IT, AS A
REPRESENTATIVE OF COMMUNITY VIEWS, THINKS IS AN APPROPRIATE SENTENCE. 
INDEED, IT HAS DONE SO AFTER A TRIAL IN WHICH REVERSIBLE ERROR,
PRESUMABLY PREJUDICAL TO THE DEFENDANT, OCCURRED.  THUS, THIS STATE
INTEREST IS NOT SUBSTANTIALLY IMPAIRED BY LIMITATIONS DESIGNED TO
PRECLUDE THE SECOND JURY FROM IMPOSING A SENTENCE BASED, IN PART, ON A
DESIRE TO PUNISH THE DEFENDANT FOR TAKING AN APPEAL. 

IN SHORT, EVEN IF ONLY THE QUESTION OF VINDICTIVENESS WERE INVOLVED
IN THE CASE OF JURY RESENTENCING, I WOULD HOLD THAT LIMITATIONS SIMILAR
TO THOSE IN PEARCE MUST BE IMPOSED ON JURY RESENTENCING:  ALTERNATIVE
METHODS OF MINIMIZING VINDICTIVENESS MAY SERIOUSLY IMPAIR OTHER VALUES,
AND THE LIMITATIONS OF PEARCE DO NOT GREATLY AFFECT THE VALUES SERVED
BY JURY SENTENCING.  /5/  BUT VINDICTIVENESS ALONE IS NOT THE ONLY
ISSUE HERE.  FOR, BY ESTABLISHING ONE RULE FOR SENTENCING BY JUDGES AND
ANOTHER FOR SENTENCING BY JURIES, THE COURT PLACES AN UNNECESSARY
BURDEN ON THE DEFENDANT'S RIGHT TO CHOOSE TO BE TRIED BY A JURY AFTER A
SUCCESSFUL APPEAL. 

WE HELD UNCONSTITUTIONAL IN UNITED STATES V. JACKSON, 390 U.S. 570
(1968), A SENTENCING STRUCTURE THAT PLACED AN UNNECESSARY BURDEN ON A
DEFENDANT'S RIGHT TO A JURY TRIAL.  THE COURT TODAY PURPORTS TO
DISTINGUISH JACKSON ON THE GROUND THAT SUBSEQUENT CASES SHOW THAT
JACKSON DOES NOT MAKE UNCONSTITUTIONAL SENTENCING STRUCTURES THAT
IMPOSE A BURDEN ON THE EXERCISE OF CONSTITUTIONAL RIGHTS AS "AN
INCIDENTAL CONSEQUENCE."  ANTE, AT 32.  YET IN JACKSON WE SAID, "THE
QUESTION IS NOT WHETHER THE CHILLING EFFECT IS 'INCIDENTAL' RATHER THAN
INTENTIONAL; THE QUESTION IS WHETHER THAT EFFECT IS UNNECESSARY AND
THEREFORE EXCESSIVE."  390 U.S., AT 582.  BRADY V. UNITED STATES, 397
U.S. 742 (1970), AND CRAMPTON V. OHIO, 402 U.S. 183 (1971), THE CASES
THAT THE COURT NOW RELIES ON, DID NOT OVERRULE JACKSON; NOR DID THEY
CHANGE THE CONSTITUTIONAL TEST.  THE QUESTION IS STILL WHETHER THE
BURDEN ON THE EXERCISE OF THE RIGHT TO BE TRIED BY A JURY IS NECESSARY,
NOT WHETHER IT IS ONLY INCIDENTAL TO THE ACCOMPLISHMENT OF SOME
LEGITIMATE STATE PURPOSE. 

IN BRADY, A DEFENDANT SOUGHT TO VACATE HIS GUILTY PLEA ON THE GROUND
THAT HE HAD PLEADED GUILTY ONLY TO AVOID CAPITAL PUNISHMENT, UNDER A
STATUTE THAT PROVIDED FOR THE DEATH PENALTY ONLY ON THE RECOMMENDATION
OF THE JURY.  THE COURT VIEWED HIS ARGUMENT AS APPLICABLE TO EVERY KIND
OF INDUCEMENT THAT THE PROSECUTION OFFERS TO A DEFENDANT IN ORDER TO
ELICIT A PLEA OF GUILTY.  SEE 397 U.S., AT 750 - 753.  THUS, ON THE
COURT'S ANALYSIS, UPHOLDING HIS CHALLENGE WOULD HAVE NECESSARILY
INVALIDATED THE WIDESPREAD PRACTICE OF PLEA BARGAINING, WHICH THE COURT
THOUGHT ESSENTIAL TO OUR SYSTEM OF CRIMINAL JUSTICE.  THE BURDEN ON THE
EXERCISE OF A DEFENDANT'S RIGHT NOT TO INCRIMINATE HIMSELF WAS
THEREFORE NECESSARY, IN THE TERMS OF THE ANALYSIS REQUIRED BY JACKSON. 

SIMILARLY, THE DEFENDANT IN CRAMPTON CONTENDED THAT FAILURE TO
SEPARATE THE TRIAL OF A CAPITAL CASE INTO A GUILT-DETERMINING PHRASE
AND A SENTENCING PHRASE DETERRED HIM FROM TESTIFYING TO FACTS BEARING
ON SENTENCE ALONE, FOR TO TESTIFY WOULD HAVE OPENED HIM UP TO
IMPEACHMENT AND TO QUESTIONS BEARING ON GUILT.  TO THE COURT, HOWEVER,
SUCH PRESSURE WAS INDISTINGUISHABLE FROM THAT PLACED ON HIM BY A VERY
POWERFUL CASE FOR THE PROSECUTION THAT MIGHT REQUIRE REBUTTAL, OR BY A
LARGE NUMBER OF OTHER WIDELY ACCEPTED PROCEDURAL RULES.  SEE 402 U.S.,
AT 213 - 216.  AS IN BRADY, THEN, THE COURT COULD NOT AGREE WITH THE
DEFENDANT WITHOUT HOLDING UNCONSTITUTIONAL MANY PROCEDURES THAT IT
THOUGHT ESSENTIAL TO THE CRIMINAL PROCESS. 

BOTH BRADY AND CRAMPTON APPLIED THE TEST OF NECESSITY.  THE COURT
TODAY DOES NOT, AS IT CONCEDES WHEN IT SAYS THAT "WHERE THE BURDEN . .
. IS SPECULATIVE AS THIS ON IS," CONSTITUTIONAL LIMITATIONS ON
RESENTENCING ARE NOT JUSTIFIED.  ANTE, AT 34 N. 21.  BUT JACKSON,
BRADY, AND CRAMPTON DID NOT INVOLVE ASSESSMENTS OF THE RELATIVE
SEVERITY OF THE BURDEN ON THE RIGHT TO CHOOSE TO BE TRIED BY A JURY;
/6/  THEY TURNED ON THE QUESTION OF STRICT NECESSITY.  /7/  NO
LEGITIMATE STATE INTEREST IS MATERIALLY ADVANCED BY PERMITTING A SECOND
JURY TO ENHANCE PUNISHMENT WITHOUT LIMITATIONS LIKE THOSE PLACED BY
PEARCE ON JUDGES, AND SUCH LIMITATIONS WOULD NOT SUBSTANTIALLY AFFECT
ANY SUCH INTEREST.  THUS, THE RULE ENDORSED BY THE COURT TODAY IS NOT
ONLY UNNECESSARY, BUT IT UNQUESTIONABLY BURDENS A DEFENDANT'S CHOICE OF
JURY TRIAL AFTER A SUCCESSFUL APPEAL.  /8/ 

I BELIEVE THAT PEARCE AND JACKSON REQUIRE THAT STATES WITH JURY
SENTENCING ADOPT PROCEDURES BY WHICH JURIES RESENTENCING AN OFFENDER
ARE PRECLUDED FROM CONSIDERING THE FACT THAT THE OFFENDER SUCCESSFULLY
APPEALED IN DETERMINING THE NEW SENTENCE, AND SO I DISSENT. 

/1/  I ASSUME THAT THE COURT WOULD TREAT JURY SENTENCING AS IT
TREATED JUDGE SENTENCING IN PEARCE IF IT WERE PRESENTED WITH THE SAME
KIND OF EVIDENCE WE DREW ON IN PEARCE.  CF. WITHERSPOON V. ILLINOIS,
391 U.S. 510, 516 - 518 (1968).  BECAUSE OF THE DIFFERING INSTITUTIONAL
POSITIONS OF JUDGES, WHO WILL BE REPEATEDLY REVIEWED BY APPELLATE
COURTS, AND JURIES, WHICH ARE NOT CONTINUING BODIES, CF. ILLINOIS V.
SOMERVILLE, 410 U.S. 458, 477 (1973) (MARSHALL, J., DISSENTING),
EVIDENCE SUPPORTING THE INFERENCE THAT VINDICTIVENESS MAY NOT
INFREQUENTLY INFLUENCE JURY DECISIONS WOULD BE ESPECIALLY VALUABLE FROM
CASES IN WHICH THE EVIDENCE ON RETRIAL WAS NOT SUBSTANTIALLY DIFFERENT
FROM THE EVIDENCE AT THE FIRST TRIAL.     /2/  IN ADDITION TO GEORGIA,
THESE STATES INCLUDE ARKANSAS, KENTUCKY, MISSOURI, OKLAHOMA, TENNESSEE,
AND VIRGINIA. 

/3/  EVEN ON THE COURT'S ANALYSIS, IF A DEFENDANT MUST PROCEED TO
TRIAL BEFORE A JURY THAT KNOWS OF HIS PRIOR CONVICTION AND SENTENCE,
DUE PROCESS WOULD REQUIRE LIMITATIONS ON THE SENTENCE IMPOSED, THOUGH
SUCH LIMITATIONS WOULD NOT BE REQUIRED IN "PROPERLY CONTROLLED
RETRIALS."  THUS, THE COURT DOES NOT TODAY ENDORSE THE PROPOSITION THAT
LIMITATIONS ON JURY SENTENCING ON A RETRIAL ARE NEVER REQUIRED.  SEE
ANTE, AT 28 N. 14.  AT MOST, IT HOLDS ONLY THAT, IN THE ABSENCE OF
KNOWLEDGE OF THE PRIOR CONVICTION AND SENTENCE, NO LIMITATIONS ARE
CONSTITUTIONALLY COMPELLED. 

/4/  THE COURT DISTINGUISHES PEARCE FROM THIS CASE IN PART ON THE
GROUND THAT THERE "THE SECOND SENTENCE WAS METED OUT BY THE SAME
JUDICIAL AUTHORITY WHOSE HANDLING OF THE PRIOR TRIAL WAS SUFFICIENTLY
UNACCEPTABLE TO HAVE REQUIRED A REVERSAL OF THE CONVICTION," WHILE HERE
"THE JURY, UNLIKE THE JUDGE WHO HAS BEEN REVERSED, WILL HAVE NO
PERSONAL STAKE IN THE PRIOR CONVICTION AND NO MOTIVATION TO ENGAGE IN
SELF-VINDICATION."  ANTE, AT 27.  THE COURT CANNOT MEAN THAT PEARCE
HIMSELF WAS RESENTENCED BY THE SAME JUDGE WHO SENTENCED HIM IN THE
FIRST PLACE, FOR PEARCE WAS TRIED BEFORE TWO DIFFERENT JUDGES.  SEE
STATE V. PEARCE, 266 N.C. 234, 236, 145 S.E. 2D 918, 920 (1966) (JUDGE
WILLIAMS AT FIRST TRIAL); STATE V. PEARCE, 268 N.C. 707, 708, 151 S.E.
2D 571, 572 (1966) (JUDGE MCLAUGHLIN AT SECOND TRIAL).  THUS, THE ONLY
DIFFERENCES IN THIS RESPECT ARE INSTITUTIONAL, NOT PERSONAL:  JURIES
ARE NOT CONTINUING BODIES AND MAY HAVE LITTLE INTEREST IN DETERRING
APPEALS OR VINDICATING A COLLEAGUE. 

/5/  THE COURT SUGGESTS THAT THE LIMITATIONS OF PEARCE CANNOT THE
SENTENCE IMPOSED OR STATING THAT THE PRIOR CONVICTION AND SENTENCE WERE
NOT TAKEN INTO ACCOUNT, INSTRUCTING THE JURY THAT THE MAXIMUM SENTENCE
AVAILABLE TO IT IS THAT IMPOSED EARLIER, OR EMPOWERING THE JUDGE TO
REDUCE THE SENTENCE IF IT EXCEEDS THE PRIOR SENTENCE, ARE SOME OBVIOUS
ALTERNATIVES.  THE COURT SUGGESTS THAT THE FIRST TWO ARE INCONSISTENT
WITH THE BASIC PURPOSE OF JURY SENTENCING--MAKING THE PUNISHMENT FIT
THE CRIME--AND THAT THE LATTER TWO "WOULD ACHIEVE, IN THE NAME OF DUE
PROCESS, THE SUBSTANCE OF THE RESULT WE HAVE DECLINED TO APPROVE UNDER
THE DOUBLE JEOPARDY CLAUSE."  ANTE, AT 29 N. 15.  THE LATTER POINT
CONFUSES LIMITATIONS IMPOSED BY THE CONSTITUTION WITH CHOICES A STATE
MIGHT MAKE TO CARRY OUT THE POLICIES IT SEEKS TO VINDICATE THROUGH JURY
SENTENCING; IF A STATE CHOOSES TO IMPOSE A MAXIMUM LIMIT ON
RESENTENCING INSTEAD OF ESTABLISHING A BIFURCATED PROCEDURE, FOR
EXAMPLE, THE RESULT IS NOT, EVEN IN SUBSTANCE, THE RESULT URGED UNDER
DOUBLE JEOPARDY CLAUSE, FOR IT RESULTS FROM CHOICE AMONG ALTERNATIVES
AND NOT FROM CONSTITUTIONAL COMMANDS.  SIMILARLY, BIFURCATION MAY
INJECT INTO JURY SENTENCING CONSIDERATIONS THAT THE STATE THINKS ARE
IRRELEVANT TO ITS PURPOSES IN ESTABLISHING A SYSTEM IN WHICH JURIES ARE
THE SENTENCING AUTHORITY, AND IT MAY DECIDE TO ADOPT SOME OTHER METHOD
OF COMPLYING WITH THE CONSTITUTIONAL REQUIREMENTS.  BUT SURELY THERE IS
NO CLEAR CONFLICT BETWEEN BIFURCATION OR SPECIAL VERDICTS AND THE
PURPOSES OF JURY SENTENCING. 

/6/  GEORGIA PERMITS A DEFENDANT TO PLEAD NOT GUILTY AND WAIVE HIS
RIGHT TO JURY TRIAL.  SEE BERRY V. STATE, 61 GA. APP. 315, 6 S.E. 2D
148 (1939).  OF THE STATES WITH JURY SENTENCING, APPARENTLY ONLY
KENTUCKY DOES NOT PERMIT SUCH A WAIVER.  SEE MEYER V. COMMONWEALTH, 472
S.W. 2D 479, 482 (KY. 1971).  WHERE THE PROSECUTION MUST AGREE TO SUCH
A WAIVER, CF. FED. RULE CRIM. PROC. 23 (A), IT WOULD OF COURSE BE
IMPERMISSIBLE TO REFUSE AGREEMENT SOLELY BECAUSE A JUDGE WOULD BE
RESTRICTED IN RESENTENCING WHILE A JURY WOULD NOT, CF. SINGER V. UNITED
STATES, 380 U.S. 24, 37 (1965). 

/7/  IN DISCUSSING WHETHER THE HOLDING TODAY BURDENS THE RIGHT TO
APPEAL, THE COURT SAYS THAT FOR THE UNDESIRED OUTCOME TO OCCUR,
"SEVERAL CONTINGENCIES MUST COALESCE."  THUS, "THE LIKLIHOOD OF
ACTUALLY RECEIVING A HARSHER SENTENCE IS QUITE REMOTE AT THE TIME A
CONVICTED DEFENDANT BEGINS TO WEIGH THE QUESTION WHETHER HE WILL
APPEAL."  ANTE, AT 33.  BUT, OF THE LIST THE COURT PROVIDES, ONLY TWO
REMAIN CONTINGENT WHEN THE DEFENDANT MUST DECIDE TO WAIVE OR INSIST
UPON A JURY TRIAL--RECONVICTION AND SENTENCE.  THE COURT ACKNOWLEDGES
THAT IN SOME CASES, EVEN WHEN ALL THE CONTINGENCIES MUST BE TAKEN INTO
ACCOUNT, THE POSSIBILITY OF A HARSHER SENTENCE MIGHT WELL AFFECT THE
DECISION TO APPEAL.  ANTE, AT 34 - 35.  THE BURDEN WILL SURELY BE
SUBSTANTIAL WHEN THE CONTINGENCIES ARE REDUCED TO TWO. 

/8/  THE COURT, IN ITS FOOTNOTE DISCUSSING THIS ARGUMENT, DOES
ASSERT THAT THE BURDEN "CANNOT BE SAID TO BE 'NEEDLESS.'"  ANTE, AT 33
N. 21.  THE SENTENCE FOLLOWING THAT ASSERTION DOES NOT SUPPLY ANY
REASON WHY THE BURDEN IS NECESSARY; IT SIMPLY STATES TWO WAYS IN WHICH
THE BURDEN MIGHT BE ELIMINATED WITHOUT SAYING WHY THOSE ALTERNATIVES
ARE SO IMPRACTICAL AS TO MAKE NECESSARY THE BURDEN THAT AFTER TODAY'S
DECISION, MAY BE PLACED ON THE RIGHT TO JURY TRIAL. 

GLEN ZELL, BY APPOINTMENT OF THE COURT, 409 U.S. 1123, ARGUED THE
CAUSE AND FILED A BRIEF FOR PETITIONER. 

RICHARD E. HICKS ARGUED THE CAUSE FOR RESPONDENT.  ON THE BRIEF WERE
LEWIS R. SLATON, JOEL M. FELDMAN, AND CARTER GOODE.  /1/ 

DAVID M. PACK, ATTORNEY GENERAL, PRO SE, AND BART C. DURHAM,
ASSISTANT ATTORNEY GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL OF
TENNESSEE AS AMICUS CURIAE. 
..END :














MICHIGAN V. PAYNE 412 U.S. 47 


       CERTIORARI TO THE SUPREME COURT OF MICHIGAN

   NO. 71 - 1005.  ARGUED FEBRUARY 22, 1973--DECIDED MAY 21,

           1973; 386 MICH. 84, 191 N.W. 2D 375, REVERSED AND

           REMANDED. 


    THE "PROPHYLACTIC" DUE PROCESS LIMITATIONS ESTABLISHED BY NORTH

  CAROLINA V. PEARCE, 395 U.S. 711, 723 - 726, TO GUARD AGAINST THE

  POSSIBILITY OF VINDICTIVENESS IN CASES WHERE A JUDGE IMPOSES A

  MORE SEVERE SENTENCE UPON A DEFENDANT AFTER A NEW TRIAL, ARE NOT

  RETROACTIVELY APPLICABLE TO RESENTENCING PROCEEDINGS THAT, LIKE

  THE ONE INVOLVED IN THIS CASE, OCCURRED PRIOR TO THE DATE OF THE

  PEARCE DECISION.  PP. 50 - 57. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, POST, P. 58.  MARSHALL, J., FILED A
DISSENTING OPINION, IN PART III OF WHICH STEWART, J., JOINED, POST, P.
59. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

A WRIT OF CERTIORARI WAS GRANTED IN THIS CASE, 409 U.S. 911 (1972), TO
DECIDE WHETHER THE DUE PROCESS HOLDING OF NORTH CAROLINA V. PEARCE, 395
U.S. 711, 723 - 726 (1969), IS TO BE GIVEN RETROACTIVE EFFECT.  FOR THE
REASONS THAT FOLLOW, WE HOLD TODAY THAT THIS DECISION IS
NONRETROACTIVE. 

        I 

RESPONDENT, LEROY PAYNE, PLEADED GUILTY IN A COUNTY CIRCUIT COURT IN
MICHIGAN IN A CHARGE OF ASSAULT WITH INTENT TO COMMIT MURDER IN
CONNECTION WITH AN ARMED ATTACK UPON TWO SHERIFF'S DEPUTIES.  IN MARCH
1963 HE WAS SENTENCED TO A PRISON TERM OF FROM 19 TO 40 YEARS.  SEVERAL
YEARS LATER, RESPONDENT'S CONVICTION AND SENTENCE WERE SET ASIDE WHEN A
HEARING, ORDERED BY THE MICHIGAN COURT OF APPEALS, DISCLOSED THAT HIS
CONFESSION AND SUBSEQUENT GUILTY PLEA WERE INVOLUNTARY.  FOLLOWING A
RETRIAL, AT WHICH HE EXERCISED HIS RIGHTS TO TRIAL BY JURY AND TO PLEAD
INNOCENT, RESPONDENT AGAIN WAS FOUND GUILTY ON THE SAME ASSAULT
CHARGE.  ON AUGUST 30, 1967, HE WAS RESENTENCED TO PRISON FROM 25 TO 50
YEARS WITH FULL CREDIT FOR ALL TIME SERVED UNDER THE PRIOR SENTENCE. 
DURING THE RESENTENCING HEARING, THE JUDGE EXPLAINED THAT THE HIGHER
SENTENCE WAS "BASED ON THE NATURE OF THE CRIME AND ON THE IMPRESSIONS
WHICH I FORMED OF (RESPONDENT) AND OF THE CRIME." 

RESPONDENT APPEALED TO THE MICHIGAN COURT OF APPEALS, WHICH AFFIRMED
HIS CONVICTION AND APPROVED THE HIGHER SENTENCE.  18 MICH. APP. 42, 170
N.W. 2D 523 (1969).  WHILE THE CASE WAS PENDING BEFORE THE MICHIGAN
SUPREME COURT, THE TRIAL JUDGE WHO HAD PRESIDED OVER RESPONDENT'S
SECOND TRIAL WAS REQUESTED TO SUBMIT AN AFFIDAVIT DETAILING HIS REASONS
FOR IMPOSING A HIGHER SENTENCE.  THE JUDGE'S AFFIDAVIT STATED THAT HIS
SENTENCING DETERMINATION WAS BASED PRIMARILY ON (I) HIS PERSONAL BELIEF
THAT THE RESPONDENT'S ATTITUDE SINCE THE FIRST SENTENCING PROCEEDING
HAD CHANGED FROM ONE OF REGRET TO REMORSELESSNESS, (II) HIS VIEW THAT
RESPONDENT'S ALIBI DEFENSE, GIVEN UNDER OATH, WAS A "TISSUE OF LIES,"
AND (III) HIS HEIGHTENED OPPORTUNITY TO LEARN OF THE DETAILS OF THE
CRIME DURING THE THREE-DAY TRIAL.  /1/ 

THE MICHIGAN SUPREME COURT, IN A 4 - TO - 3 DECISION, UPHELD THE
CONVICTION BUT REJECTED THE HIGHER SENTENCE AS VIOLATIVE OF THE DUE
PROCESS RESTRICTIONS ESTABLISHED IN NORTH CAROLINA V. PEARCE, SUPRA.
386 MICH. 84, 191 N.W. 2D 375 (1971).  THE COURT RECOGNIZED THAT THIS
COURT HAD NOT YET DECIDED WHETHER PEARCE APPLIED TO RESENTENCING
PROCEEDINGS WHICH, AS IN THIS CASE, OCCURRED PRIOR TO PEARCE'S DATE OF
DECISION.  /2/  WHILE DECLINING TO PREDICT HOW THE RETROACTIVITY
QUESTION WOULD ULTIMATELY BE RESOLVED, THE MICHIGAN SUPREME COURT
DECIDED TO APPLY PEARCE TO THE CASE THEN BEFORE IT "PENDING
CLARIFICATION" BY THIS COURT.  ID., AT 90 N. 3, 191 N.W. 2D, AT 378 N.
2.  BEFORE THIS COURT, THE STATE CONTENDS THAT PEARCE SHOULD NOT BE
APPLIED RETROSPECTIVELY, BUT THAT, EVEN IF APPLICABLE, THE STATE
SUPREME COURT ERRED IN HOLDING THE HIGHER SENTENCE INVALID UNDER THE
PEARCE TEST.  BECAUSE WE HOLD TODAY THAT PEARCE DOES NOT APPLY
RETROACTIVELY, WE DO NOT REACH THE STATE'S SECOND CONTENTION.  /3/

      II 

IN PEARCE, THE COURT EMPHASIZED THAT "(IT CAN HARDLY BE DOUBTED"
THAT, WHILE "THERE EXISTS NO ABSOLUTE CONSTITUTIONAL BAR TO THE
IMPOSITION OF A MORE SEVERE SENTENCE UPON RETRIAL," IT WOULD BE
ENTIRELY IMPERMISSIBLE FOR JUDGES TO RENDER HARSHER PENALTIES AS
PUNISHMENT FOR THOSE DEFENDANTS WHO HAVE SUCCEEDED IN GETTING THEIR
CONVICTIONS REVERSED.  395 U.S., AT 723.  "(VINDICTIVENESS" AGAINST A
DEFENDANT FOR HAVING EXERCISED HIS RIGHTS TO APPEAL OR TO ATTACK HIS
CONVICTION COLLATERALLY, THE COURT HELD, "MUST PLAY NO PART IN THE
SENTENCE (A DEFENDANT) RECEIVES AFTER A NEW TRIAL."  ID., AT 725.  IN
SO HOLDING, THE COURT RECOGNIZED THAT "FUNDAMENTAL NOTIONS OF FAIRNESS
EMBODIED WITHIN THE CONCEPT OF DUE PROCESS" ABSOLUTELY PRECLUDE THE
IMPOSITION OF SENTENCES BASED UPON SUCH A "'RETALIATORY MOTIVATION.'" 
CHAFFIN V. STYNCHCOMBE, ANTE, AT 25.  NO "NEW" CONSTITUTIONAL RULE WAS
THEREBY ESTABLISHED AND IT CANNOT BE QUESTIONED THAT THIS BASIC DUE
PROCESS PROTECTION ARTICULATED IN PEARCE IS AVAILABLE EQUALLY TO
DEFENDANTS RESENTENCED BEFORE AND AFTER THE DATE OF DECISION IN THAT
CASE.  ON THIS POINT THE PARTIES DO NOT DISAGREE. 

THE DISPUTE IN THIS CASE CENTERS, INSTEAD, AROUND THE "PROPHYLACTIC"
/4/  LIMITATIONS PEARCE ESTABLISHED TO GUARD AGAINST THE POSSIBILITY
OF VINDICTIVENESS IN THE RESENTENCING PROCESS.  THOSE LIMITATIONS,
APPLICABLE "WHENEVER A JUDGE IMPOSES A MORE SEVERE SENTENCE UPON A
DEFENDANT AFTER A NEW TRIAL," 395 U.S., AT 726, REQUIRE THAT THE
SENTENCING JUDGE'S REASONS "MUST AFFIRMATIVELY APPEAR," AND THAT THOSE
REASONS "MUST BE BASED UPON OBJECTIVE INFORMATION CONCERNING
IDENTIFIABLE CONDUCT ON THE PART OF THE DEFENDANT OCCURRING AFTER THE
TIME OF THE ORIGINAL SENTENCING PROCEEDING."  IBID.  THE QUESTION HERE
IS WHETHER THESE RESTRICTIONS GOVERN RESENTENCING PROCEEDINGS PREDATING
PEARCE. 

THE CONTOURS OF THE RETROACTIVITY INQUIRY HAVE BEEN CLEARLY
DELINEATED IN NUMEROUS DECISIONS OVER THE LAST DECADE.  THE TEST
UTILIZED REPEATEDLY BY THIS COURT TO ASCERTAIN WHETHER "NEW"
CONSTITUTIONAL PROTECTIONS IN THE AREA OF CRIMINAL PROCEDURE ARE TO BE
APPLIED RETROACTIVELY CALLS FOR THE CONSIDERATION OF THREE CRITERIA:
"(A) THE PURPOSE TO BE SERVED BY THE NEW STANDARDS, (B) THE EXTENT OF
THE RELIANCE BY LAW ENFORCEMENT AUTHORITIES ON THE OLD STANDARDS, AND
(C) THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A RETROACTIVE
APPLICATION OF THE NEW STANDARDS."  STOVALL V. DENNO, 388 U.S. 293, 297
(1967).  SEE ALSO LINKLETTER V. WALKER, 381 U.S. 618, 629, 636 (1965);
TEHAN V. SHOTT, 382 U.S. 406, 410 - 418 (1966); JOHNSON V. NEW JERSEY,
384 U.S. 719, 726 - 727 (1966). 

THE TWO PURPOSES FOR THE RESENTENCING RESTRICTIONS IMPOSED BY PEARCE
WERE TO ENSURE (I) "THAT VINDICTIVENESS AGAINST A DEFENDANT FOR HAVING
SUCCESSFULLY ATTACKED HIS FIRST CONVICTION . . . (WOULD) PLAY NO PART
IN THE SENTENCE HE RECEIVES AFTER A NEW TRIAL . . ."  AND (II) THAT
APPREHENSION OF SUCH VINDICTIVENESS WOULD NOT "DETER A DEFENDANT'S
EXERCISE OF THE RIGHT TO APPEAL OR COLLATERALLY ATTACK HIS FIRST
CONVICTION.  . . . ."  395 U.S. AT 725; COLTEN V. KENTUCKY, 407 U.S.
104, 116 (1972).  THE LATTER PURPOSE IS NOT PERTINENT TO THIS CASE,
SINCE RESPONDENT WAS NOT DETERRED FROM EXERCISING HIS RIGHT TO
CHALLENGE HIS FIRST CONVICTION.  BUT, IN ANY EVENT, WE THINK IT CLEAR
THAT THIS FUNCTION OF THE NEW RESENTENCING RULES COULD BE SERVED ONLY
IN FUTURO:  NOTHING IN PEARCE SUGGESTS THAT THE COURT CONTEMPLATED THAT
ITS DECISION MIGHT PROVIDE A GROUND FOR THE UNTIMELY REOPENING OF
APPEALS BY DEFENDANTS WHO DECIDED NOT TO APPEAL PRIOR TO THE DATE OF
DECISION IN PEARCE.  /5/  SEE JAMES V. COPINGER, 441 F. 2D 23 (CA4
1971). 

THE FIRST-ARTICULATED PURPOSE OF THE PEARCE RULES--TO PROTECT
AGAINST THE POSSIBILITY THAT ACTUAL VINDICTIVENESS WILL INFECT A
RESENTENCING PROCEEDING--DESERVES CLOSER SCRUTINY.  UNLIKE THE PURPOSES
UNDERLYING MANY OF THE DECISIONS HERETOFORE ACCORDED RETROSPECTIVE
APPLICATION, /6/  THIS PURPOSE DOES NOT IMPLICATE THE "'FAIR
DETERMINATION' OF . . . GUILT OR INNOCENCE."  ROBERTS V. RUSSELL, 392
U.S. 293, 294 (1968) (EMPHASIS SUPPLIED).  IT DOES, HOWEVER, INVOLVE
QUESTIONS TOUCHING ON THE "INTEGRITY" OF ONE ASPECT OF THE JUDICIAL
PROCESS.  MCCONNELL V. RHAY, 393 U.S. 2, 3 (1968).  THE PEARCE
RESTRICTIONS SERVE TO ENSURE THAT RESENTENCING DECISIONS WILL NOT BE
BASED ON IMPROPER CONSIDERATIONS, SUCH AS JUDGE'S UNARTICULATED
RESENTMENT AT HAVING BEEN REVERSED ON APPEAL, OR HIS SUBJECTIVE
INSTITUTIONAL INTEREST IN DISCOURAGING MERITLESS APPEALS.  BY
ELIMINATING THE POSSIBILITY THAT THESE FACTORS MIGHT OCCASION ENHANCED
SENTENCES.  THE PEARCE PROPHYLACTIC RULES ASSIST IN GUARANTEEING THE
PROPRIETY OF THE SENTENCING PHRASE OF THE CRIMINAL PROCESS.  IN THIS
PROTECTIVE ROLE, PEARCE IS ANALOGOUS TO MIRANDA V. ARIZINA, 384 U.S.
436 (1966), IN WHICH THE COURT ESTABLISHED RULES TO GOVERN POLICE
PRACTICES DURING CUSTODIAL INTERROGATIONS IN ORDER TO SAFEGUARD THE
RIGHTS OF THE ACCUSED AND TO ASSURE THE RELIABILITY OF STATEMENTS MADE
DURING THOSE INTERROGATIONS.  THUS, THE PROPHYLACTIC RULES IN PEARCE
AND MIRANDA ARE SIMILAR IN THAT EACH WAS DESIGNED TO PRESERVE THE
INTEGRITY OF A PHASE OF THE CRIMINAL PROCESS.  BECAUSE OF THIS
SIMILARITY, WE FIND THAT JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966),
WHICH HELD MIRANDA NONRETROACTIVE, PROVIDES CONSIDERABLE GUIDANCE
HERE.  SEE ALSO JENKINS V. DELAWARE, 395 U.S. 213 (1969). 

IT IS AN INHERENT ATTRIBUTE OF PROPHYLACTIC CONSTITUTIONAL RULES,
SUCH AS THOSE ESTABLISHED IN MIRANDA AND PEARCE, THAT THEIR
RETROSPECTIVE APPLICATION WILL OCCASION WINDFALL BENEFITS FOR SOME
DEFENDANTS WHO HAVE SUFFERED NO CONSTITUTIONAL DEPRIVATION.  MIRANDA'S
WELL-KNOWN WARNING REQUIREMENTS PROVIDED A PROTECTION "AGAINST THE
POSSIBILITY OF UNRELIABLE STATEMENTS IN EVERY INSTANCE OF IN-CUSTODY
INTERROGATION," AND THEREBY COVERED MANY "SITUATIONS IN WHICH THE
DANGER (WAS) NOT NECESSARILY AS GREAT AS WHEN THE ACCUSED IS SUBJECTED
TO OVERT AND OBVIOUS COERCION."  JOHNSON V. NEW JERSEY, SUPRA, AT 730
(EMPHASIS SUPPLIED).  THUS, HAD MIRANDA BEEN APPLIED RETROACTIVELY, IT
WOULD HAVE REQUIRED THE REVERSAL OF MANY CONVICTIONS IN WHICH NO
SERIOUS CONSTITUTIONAL VIOLATION HAD OCCURRED.  ID., AT 731.  LIKEWISE,
THE RETROACTIVE APPLICATION OF PEARCE WOULD REQUIRE THE REPUDIATION OF
MANY SENTENCES RENDERED UNDER CIRCUMSTANCES IN WHICH THERE WAS NO
GENUINE POSSIBILITY THAT VINDICTIVENESS PLAYED A ROLE.  JUDICIAL
IMPROPRIETY IN THE RESENTENCING PROCESS, ALBEIT INTOLERABLE WHEREVER IT
HAPPENS, SURELY IS NOT A COMMON PRACTICE.  INDEED, NOTHING IN PEARCE
INTIMATES THAT THE COURT REGARDED IT AS ANYTHING MORE THAN AN
INFREQUENTLY APPEARING BLEMISH ON THE SENTENCING PROCESS.  /7/  ABSENT
COUNTERVAILING CONSIDERATIONS ROOTED IN THE PURPOSES UNDERLYING A NEW
RULE, THIS FACTOR--THAT RETROACTIVE APPLICATION OF SUCH BROADLY
PROTECTIVE RULES WOULD OCCASION REVERSALS IN MANY INSTANCES IN WHICH NO
ACTUAL PREJUDICE HAS BEEN SUFFERED--POINTS TOWARD A RULING OF
PROSPECTIVITY. 

NONRETROACTIVITY IS ALSO SUGGESTED BY THE SECOND SIMILARITY BETWEEN
MIRANDA AND PEARCE.  WHILE EACH CREATED A PROTECTIVE UMBRELLA SERVING
TO ENHANCE A CONSTITUTIONAL GUARENTEE, NEITHER CONFERRED A
CONSTITUTIONAL RIGHT THAT HAD NOT EXISTED PRIOR TO THOSE DECISIONS. 
THE RIGHT AGAINST USE OF AN INVOLUNTARY CONFESSION LONG PRECEDED
MORANDA JUST AS THE RIGHT TO BE FREE FROM FUNDAMENTALLY UNFAIR
SENTENCING CONSIDERATIONS PREDATED PEARCE.  SUPRA, AT 50.  BECAUSE
THESE FOUNDATIONAL RIGHTS REMAIN AVAILABLE TO DEFENDANTS IN PRE-MIRANDA
AND THE PRE-PEARCE CASES, A DECISION OF NONRETROACTIVITY IS LESS LIKE
TO RESULT IN THE CONTINUED INCARCERATION OF THOSE WHOSE CONVICTIONS OR
SENTENCES REST ON UNCONSTITUTIONAL ACTS.  /8/  LINKLETTER V. WALKER,
381 U.S., AT 640 (BLACK, J., DISSENTING). 

OF COURSE, THE QUESTION OF THE IMPACT OF PARTICULAR DECISIONS ON THE
RELIABILITY AND FAIRNESS OF ANY ASPECT OF A CRIMINAL PROCEEDING IS
INHERENTLY A MATTER OF BALANCING "PROBABILITIES."  JOHNSON V. NEW
JERSEY, 384 U.S., AT 729; ABRAMS V. ILLINOIS, 405 U.S. 278, 281
(1972).  YET IN VIEW OF THE FACT THAT, IF RETROACTIVE, PEARCE WOULD
APPLY TO INNUMERABLE CASES IN WHICH NO HINT OF VINDICTIVENESS APPEARS,
COUPLED WITH THE CONSIDERATION THAT DUE PROCESS CLAIMS MAY ALWAYS BE
MADE IN THOSE PRIOR CASES IN WHICH SOME EVIDENCE OF RETALIATORY
MOTIVATION EXISTS, /9/  WE HAVE LITTLE DOUBT THAT THE "PROBABILITIES"
IN THIS CASE PREPONDERATE IN FAVOR OF A RULING OF NONRETROACTIVITY. 
/10/ 

ALTHOUGH THE REMAINING FACTORS--RELIANCE AND BURDEN ON THE ADMINIS
RATION OF JUSTICE--HAVE BEEN REGARDED AS HAVING CONTROLLING
SIGNIFICANCE "ONLY WHEN THE PURPOSE OF THE RULE IN QUESTION DID NOT
CLEARLY FAVOR EITHER RETROACTIVITY OR PROSPECTIVITY," DESIST V. UNITED
STATES, 394 U.S. 244, 251 (1969), THOSE CONSIDERATIONS ALSO SUPPORT THE
NONRETROACTIVITY OF PEARCE.  THE RESULT IN PEARCE WAS NOT
"FORESHADOWED" BY ANY PRIOR DECISION OF THIS COURT.  /11/  INDEED,
PRIOR TO PEARCE, RESENTENCING JUDGES WERE BOUND BY NO REQUIREMENT THAT
THEY ARTICULATED THEIR REASONS AND GENERALLY ENJOYED A WIDE DISCRETION
IN TERMS OF THE FACTORS THEY MIGHT LEGITIMATELY CONSIDER.  SEE WILLIAMS
V. NEW YORK, 337 U.S. 241 (1949).  NOR COULD IT BE SAID THAT THE
COURT'S DECISION WAS CLEARLY FORECAST BY ANY TREND OF LOWER COURT
DECISIONS.  IN PEARCE ITSELF THE COURT NOTED THAT LOWER FEDERAL AND
STATE COURTS WERE DIVIDED IN ALL OF THE QUESTIONS POSED.  395 U.S., AT
715 N. 5.  UNDER THESE CIRCUMSTANCES, JUDICIAL RELIANCE ON PRIOR LAW
WAS CERTAINLY JUSTIFIABLE.  /12/ 

BECAUSE OF THAT RELIANCE, IT IS FAIR TO ASSUME THAT IN PRIOR YEARS
FEW, IF ANY, JUDGES COMPLIED DURING RESENTENCING WITH PEARCE'S
RECORDATION REQUIREMENTS, AND THAT THEY OFTEN CONSIDERED A VARIETY OF
FACTORS RELATING TO THE DEFENDANT AND HIS CRIME WHICH MIGHT OR MIGHT
NOT HAVE FALLEN WITHIN THE PEARCE STANDARD.  WE HAVE BEEN PRESENTED
WITH NO STATISTICAL INDICATIONS AS TO HOW MANY PERSONS RECEIVED
INCREASED PENALTIES AFTER RETRIALS.  /13/  WE CANNOT SAY, HOWEVER, THAT
THE POTENTIAL INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE WOULD BE
INSUBSTANTIAL IF PEARCE WERE APPLIED RETROACTIVELY.  IN ORDER TO COMPLY
WITH PEARCE, A RESENTENCING JUDGE--ASSUMING HE IS STILL ON THE BENCH OR
OTHERWISE AVAILABLE--WOULD BE REQUIRED TO MAKE A FACTUAL DETERMINATION
AS TO THE REASONS FOR SENTENCES HE MAY HAVE METED OUT YEARS IN THE
PAST.  COMPLIANCE WITH THAT REQUIREMENT WOULD PRESENT CONSIDERABLE
DIFFICULTIES, SINCE JUDGES, LIKE WITNESSES IN CRIMINAL TRIALS, LACK
INFALLIBLE MEMORIES AND PERFECT RECORDS OF THEIR MOTIVATIONS.  /14/
LINKLETTER V. WALKER, 381 U.S., AT 637.  WHILE WE WOULD NOT SHY FROM
IMPOSING THESE BURDENS WERE WE PERSUADED THAT IT WAS NECESSARY TO DO SO
IN ORDER TO EFFECTUATE THE PURPOSES UNDERLYING PEARCE, WE HAVE FOUND NO
SUCH NEED HERE.  IN SUM, UPON APPLICATION OF THE THREE-PART TEST, WE
HOLD THAT THE PEARCE REQUIREMENTS ARE NOT TO BE ACCORDED RETROACTIVE
APPLICATION.  /15/

        III 

SINCE THE RESENTENCING HEARING IN THIS CASE TOOK PLACE APPROXIMATELY
TWO YEARS BEFORE PEARCE WAS DECIDED, WE HOLD THAT THE MICHIGAN SUPREME
COURT ERRED IN APPLYING ITS PROSCRIPTIONS HERE.  ACCORDINGLY, THE
JUDGMENT OF THAT COURT IS REVERSED, AND THE CASE IS REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

     IT IS SO ORDERED. 

/1/  IN HIS AFFIDAVIT, THE SECOND SENTENCING JUDGE INDICATED THAT A
DIFFERENT JUDGE WHO PRESIDED OVER RESPONDENT'S PRIOR GUILTY PLEA AND
SENTENCING HEARINGS DID NOT HAVE AS GOOD AN OPPORTUNITY TO BECOME FULLY
INFORMED OF THE DETAILS OF THE "DELIBERATE, COLD-BLOODED ATTACK."  IN A
SUBSEQUENT AMENDATORY AFFIDAVIT FILED BY THE SAME JUDGE, HE CORRECTED
HIS PRIOR AFFIDAVIT BY STATING THAT THE FIRST JUDGE DID HAVE "SOME
LIMITED OPPORTUNITY TO SEE AND HEAR (RESPONDENT) WHEN HE TESTIFIED AS A
WITNESS FOR THE PROSECUTION AGAINST HIS ACCOMPLICE" IN A SEPARATE
TRIAL.  THE PARTIES IN THIS CASE NOW AGREE THAT THE FIRST JUDGE DID
PRESIDE OVER THE TRIAL OF RESPONDENT'S CODEFENDANT BEFORE SENTENCING
RESPONDENT AND THAT RESPONDENT DID TESTIFY AT THAT TRIAL.  THE PARTIES
CONTINUE, HOWEVER, TO DISPUTE WHETHER THAT OPPORTUNITY WAS AS COMPLETE
AS THE OPPORTUNITY AFFORDED THE SECOND JUDGE, AND, IF NOT, WHETHER THIS
IS A PERMISSIBLE CONSIDERATION IN RESENTENCING UNDER PEARCE.  BECAUSE
OF THE MANNER IN WHICH WE DISPOSE OF THIS CASE, WE NEED NOT RESOLVE
THIS CONTROVERSY.  SEE N. 3, INFRA. 

/2/  THIS COURT HAS TWICE PREVIOUSLY GRANTED CERTIORARI TO RESOLVE
THIS QUESTION, BUT ON EACH OCCASION THE WRIT WAS DISMISSED AS
IMPROVIDENTLY GRANTED.  MOON V. MARYLAND, 398 U.S. 319 (1970) (CERT.
GRANTED, 395 U.S. 975 (1969)); ODOM V. UNITED STATES, 400 U.S. 23
(1970) (CERT. GRANTED, 399 U.S.904 (1970)). 

/3/  THIS COURT HAS CONSISTENTLY DECLINED TO REACH OUT TO RESOLVE
UNSETTLING QUESTIONS REGARDING THE SCOPE OR MEANING OF DECISIONS
ESTABLISHING "NEW" CONSTITUTIONAL REQUIREMENTS IN CASES IN WHICH IT
HOLDS ANY SUCH DECISIONS NONRETROACTIVE.  SEE STOVALL V. DENNO, 388
U.S. 293 (1967) (HOLDING UNITED STATES V. WADE, 388 U.S. 218 (1967),
AND GILBERT V. CALIFORNIA, 388 U.S. 263 (1967), NONRETROACTIVE WITHOUT
RESOLVING THE QUESTION WHETHER THOSE CASES WERE APPLICABLE TO PREFORMAL
ACCUSATION CONFRONTATIONS, A QUESTION LATER DECIDED IN KIRBY V.
ILLINOIS, 406 U.S. 682 (1972)); DESTEFANO V. WOODS, 392 U.S. 631 (1968)
(HOLDING DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), AND BLOOM V.
ILLINOIS, 391 U.S. 194 (1968), NONRETROACTIVE AND DECLINING TO DECIDE
WHETHER A SUMMARY CONTEMPT PROCEEDING THAT RESULTS IN A ONE-YEAR
SENTENCE IS A "SERIOUS" OFFENSE REQUIRING TRIAL BY JURY, A QUESTION
LATER DECIDED IN BALDWIN V. NEW YORK, 399 U.S. 66 (1970)); CARCERANO V.
GLADDEN (A COMPANION CASE WITH DESTEFANO, IN WHICH THE COURT DECLINED
TO DECIDE WHETHER THE RIGHT TO JURY TRIAL CONTEMPLATED BY DUNCAN ALSO
REQUIRED A UNANIMOUS VERDICT, A QUESTION LATER DECIDED IN APODACA V.
OREGON, 406 U.S. 404 (1972)); ELKANICH V. UNITED STATES (A COMPANION
CASE WITH WILLIAMS V. UNITED STATES, 401 U.S. 646 (1971), HOLDING
CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969), NONRETROACTIVE AND DECLINING
TO DECIDE WHETHER THE SEARCH WAS OTHERWISE COMPATIBLE WITH THE CHIMEL
LIMITATIONS ON SEARCHES INCIDENT TO LAWFUL ARRESTS). 

/4/  CHAFFIN V. STYNCHCOMBE, AT 25; COLTEN V. KENTUCKY, 407 U.S.
104, 116, 118 (1972). 

/5/  THIS IS NOT TO SUGGEST, OF COURSE, THAT THERE MAY NOT BE
SPECIFIC CASES IN WHICH A CONVICTED DEFENDANT MIGHT SHOW THAT HIS
INITIAL WAIVER OF HIS RIGHT TO APPEAL WAS INVOLUNTARY BECAUSE CAUSED BY
A REASONABLY BASED FEAR OF ACTUAL VINDICTIVENESS ON THE PART OF A
PARTICULAR JUDGE.  CF. NORTH CAROLINA V. PEARCE, 395 U.S., AT 725 N.
20. 

/6/  SEE, E. G., IN RE WINSHIP, 397 U.S. 358 (1970) (HELD
RETROACTIVE IN IVAN V. V. NEW YORK, 407 U.S. 203 (1972)); BARBER V.
PAGE, 390 U.S. 719 (1968) (HELD RETROACTIVE IN BERGER V. CALIFORNIA,
393 U.S. 314 (1969)); BRUTON V. UNITED STATES, 391 U.S. 123 (1968)
(HELD RETROACTIVE IN ROBERTS V. RUSSELL, 392 U.S. 293 (1968)); GIDEON
V. WAINWRIGHT, 372 U.S. 355 (1963). 

/7/  THE MOST THAT MAY BE SAID IS THAT THE COURT IN PEARCE FOUND
THAT "INCREASED SENTENCES ON RECONVICTION ARE FAR FROM RARE," 395 U.S.,
AT 725 N. 20, AND THAT IT WAS PERSUADED THAT VINDICTIVENESS PLAYED A
ROLE IN A SUFFICIENT NUMBER OF THOSE CASES TO "WARRANT THE IMPOSITION
OF A PROPHYLACTIC RULE."  COLTEN V. KENTUCKY, 407 U.S., AT 116. 

/8/  SEE JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966).  SEE ALSO
STOVALL V. DENNO, 388 U.S., AT 299 (IN PRE-WADE-GILBERT CASES "IT
REMAINS OPEN TO ALL PERSONS TO ALLEGE AND PROVE . . . THAT THE
CONFRONTATION . . . INFRINGED HIS RIGHT TO DUE PROCESS OF LAW"); CF.
HALLIDAY V. UNITED STATES, 394 U.S. 831, 833 (1969). 

/9/  OF COURSE, IT REMAINS TRUE THAT "RETALIATORY MOTIVATION" MAY BE
"DIFFICULT TO PRIVE IN ANY INDIVIDUAL CASE."  NORTH CAROLINA V. PEARCE,
395 U.S., AT 725 N. 20.  AND, THIS IS CERTAINLY ONE OF THE REASONS WHY
THE COURT IN PEARCE ADOPTED PROPHYLACTIC RULES.  SIMILAR PROBLEMS OF
PROOF PROMPTED THE DECISIONS IN MIRANDA AND WADE, BUT SUCH PROBLEMS IN
THEMSELVES WERE NOT SUFFUCIENT TO WARRANT RETROSPECTIVE APPLICATION. 

/10/  WE REITERATE HERE WHAT THE COURT HAS REPEATEDLY SAID IN
RETROACTIVITY CASES:  "(WE DO NOT DISPARAGE A CONSTITUTIONAL GUARANTEE
IN ANY MANNER BY DECLINING TO APPLY IT RETROACTIVELY."  JOHNSON V. NEW
JERSEY, 384 U.S., AT 728; CF; LINKLETTER V. WALKER, 381 U.S. 618, 629
(1965). 

/11/  COMPARE BERGER V. CALIFORNIA, 393 U.S. 31411969), AND ROBERTS
V. RUSSELL, 392 U.S. 293 (1968), WITH ADAMS V. ILLINOIS, 405 U.S. 278
(1972), AND JOHNSON V. NEW JERSEY, 384 U.S., AT 731. 

/12/  WE NEED NOT DISAGREE WITH MR. JUSTICE MARSHALL'S NOTATION,
POST, AT 66 N. 9, THAT THE RESULT IN PEARCE WAS FORESHADOWED, I. E.,
THAT HIGHER SENTENCES ON RETRIAL WERE BEING QUESTIONED.  OUR FOCUS
HERE, HOWEVER, IS ON THE PROPHYLACTIC MEASURE ADOPTED TO ACHIEVE THAT
RESULT.  AS TO THIS, WE DO NOT THINK THERE IS ANY SERIOUS QUESTION THAT
NEITHER THE RECORDATION REQUIREMENT NOR THE LIMITATIONS ON MATTERS TO
BE CONSIDERED WERE SO CLEARLY FORECAST AS TO RENDER A CONTRARY STATE
RELIANCE UNJUSTIFIABLE. 

/13/  SEE NOTE, CONSTITUTIONAL LAW:  INCREASED SENTENCE AND DENIAL
OF CREDIT ON RETRIAL SUSTAINED UNDER TRADITIONAL WAIVER THEORY, 1965
DUKE L. J. 395, 399 N. 25 (INFORMAL SURVEY OF NORTH CAROLINA COURTS
SHOWED THAT SIX OF 50 RECONVICTED DEFENDANTS RECEIVED HIGHER
SENTENCES). 

/14/  THUS, THE RETROACTIVITY OF PEARCE WOULD PRESENT DIFFICULTIES
NOT ENCOUNTERED IN TWO OF THE COURT'S RECENT DECISIONS HOLDING
RETROACTIVE CASES INVOLVING RESENTENCING:  FURMAN V. GEORGIA, 408 U.S.
238 (1972) (THE "DEATH PENALTY" CASE); ROBINSON V. NEIL, 409 U.S. 505
(1973) (HOLDING WALLER V. FLORIDA, 397 U.S. 387 (1970) RETROACTIVE). 
IN BOTH CASES, "(THAT WHICH WAS CONSTITUTIONALLY INVALID COULD BE
ISOLATED AND EXCISED WITHOUT REQUIRING THE STATE TO BEGIN THE ENTIRE
FACTFINDING PROCESS ANEW."  ROBINSON V. NEIL, SUPRA, AT 510. 

/15/  RESPONDENT, RELYING ON LINKLETTER V. WALKER, SUPRA, AND TEHAN
V. SHOTT, 382 U.S. 406 (1966), URGES THE COURT TO DISTINGUISH BETWEEN
CASES, LIKE HIS, ON DIRECT APPEAL AND THOSE ARISING AFTER A CONVICTION
AND SENTENCE HAVE BECOME FINAL.  WE THINK THE ABOVE-STATED REASONS FOR
APPLYING PEARCE PROSPECTIVELY APPLY WITH EQUAL FORCE TO ALL CASES IN
WHICH RESENTENCING PROCEEDINGS OCCURED BEFORE JUNE 23, 1969, THE DATE
OF DECISION IN PEARCE.  SEE STOVALL V. DENNO, 388 U.S., AT 300; DESIST
V. UNITED STATES, 394 U.S., AT 252; WILLIAMS V. UNITED STATES, 401
U.S., AT 651 - 652. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WE DEAL HERE WITH THE GUARANTEE CONTAINED IN THE FIFTH AMENDMENT,
APPLICABLE TO THE STATES BY REASON OF THE FOURTEENTH, BENTON V.
MARYLAND, 395 U.S. 784, THAT NO PERSON SHALL "BE SUBJECT FOR THE SAME
OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB."  THE CONSTRUCTION
GIVEN THAT CLAUSE WAS APPLIED RETROACTIVELY IN NORTH CAROLINA V.
PEARCE, 395 U.S. 711; AND I THINK THAT PAYNE AS WELL AS PEARCE SHOULD
HAVE THE BENEFIT OF THE "NEW" CONSTITUTIONAL RULE.  MY VIEWS HAVE BEEN
AT ODDS WITH THOSE OF THE COURT AS WITNESSED BY THE DISSENT OF MR.
JUSTICE BLACK IN LINKLETTER V. WALKER, 381 U.S. 618, 640, WHICH I
JOINED, AND BY MY SEPARATE DISSENT IN DESIST V. UNITED STATES, 394 U.S.
244, 255.  I COULD UNDERSTAND MAKING A "NEW"  CONSTITUTIONAL RULE
APPLICABLE ONLY PROSPECTIVELY.  BUT I CANNOT BRING MYSELF TO MAKING THE
"NEW" RULE APPLICABLE TO SOME BUT NOT TO OTHERS.  IF A STATE HAS
VIOLATED THE FEDERAL CONSTITUTION IN CONVICTING OR SENTENCING A
PRISONER, I SEE NO WAY OF DENYING HIM RELIEF FROM THAT UNCONSTITUTIONAL
TRIAL OR UNCONSTITUTIONAL SENTENCE. 

THE DOUBLE JEOPARDY CLAUSE IN MY VIEW WAS DESIGNED TO DISCOURAGE THE
ABUSIVE USE BY THE EXECUTIVE AND JUDICIAL BRANCHES OF THE AWESOME POWER
OF GOVERNMENT OVER THE INDIVIDUAL.  JEOPARDY ATTACHES ONCE THE TRIAL
STARTS.  IF THERE IS ERROR IN THAT TRIAL AND AS A RESULT A NEW TRIAL IS
HAD, THE GOVERNMENT CANNOT IMPOSE AN ADDED OR INCREASED SENTENCE ON THE
SECOND TRIAL.  THAT IS MY VIEW, AS EXPLAINED IN NORTH CAROLINA V.
PEARCE, SUPRA, AT 726 - 737.  RESPONDENT RECEIVED A SENTENCE OF 19 TO
40 YEARS ON HIS FIRST TRIAL AND A GREATER ONE OF 25 TO 50 YEARS ON HIS
SECOND TRIAL.  I THEREFORE WOULD AFFIRM THE JUDGMENT BELOW. 

MR. JUSTICE MARSHALL, DISSENTING. 

THE COURT TODAY HOLDS THAT NO LIMITATIONS NEED BE PLACED ON
RESENTENCINGS THAT OCCURRED BEFORE THE DATE OF DECISION IN NORTH
CAROLINA V. PEARCE, 395 U.S. 711 (1969).  I BELIEVE HOWEVER, THAT THE
STATE HAS AN OBLIGATION TO PRESENT TO THE COURT REVIEWING THE SECOND
CONVICTION EVIDENCE FROM WHICH THAT COURT CAN DETERMINE WHETHER A NEW
SENTENCE, MORE SEVERE THAN THAT IMPOSED AT A PRIOR TRIAL, RESULTED IN
PART FROM THE SENTENCING AUTHORITY'S DESIRE TO PUNISH THE DEFENDANT FOR
SUCCESSFULLY APPEALING HIS FIRST CONVICTION.  /1/  I THEREFORE
RESPECTFULLY DISSENT. 

        I 

THIS CASE RAISES THE ISSUE OF RETROACTIVITY ONLY BECAUSE OF THE
ALMOST UNBELIEVABLE SLUGGISHNESS OF THE APPELLATE PROCESS IN MICHIGAN. 
PAYNE'S SECOND SENTENCE WAS IMPOSED ON AUGUST 30, 1967, NEARLY TWO
YEARS BEFORE PEARCE WAS DECIDED.  HOWEVER, THE MICHIGAN COURT OF
APPEALS DID NOT DECIDE PAYNE'S APPEAL UNTIL JULY 28, 1969, ONE MONTH
AFTER THE DECISION IN PEARCE.  THE MICHIGAN SUPREME COURT CONSIDERED
THE CASE FOR TWO MORE YEARS, FINALLY DECIDING IT ON NOVEMBER 9, 1971. 
HAD THE APPELLATE PROCESS IN MICHIGAN BEEN AT ALL EXPENDITIOUS, THIS
COURT MIGHT HAVE USED PAYNE'S CASE AS THE VEHICLE TO DECIDE THAT
HARSHER SENTENCES ON RECONVICTION COULD BE JUSTIFIED ONLY BY OBJECTIVE
EVIDENCE OF POST-SENTENCING CONDUCT BY THE DEFENDANT, THE RULE ADOPTED
IN PEARCE.  THE ONLY DIFFERENCE BETWEEN PEARCE'S CASE AND PAYNE'S,
THEN, IS THAT THE FORMER MOVED UP TO THIS COURT MORE QUICKLY THAN THE
LATTER.  DIFFERENT TREATMENT OF TWO CASES IS JUSTIFIED UNDER OUR
CONSTITUTION ONLY WHEN THE CASES DIFFER IN SOME RESPECT RELEVANT TO THE
DIFFERENT TREATMENT.  /2/  AND A DIFFERENCE IN THE SPEED WITH WHICH A
JUDICIAL SYSTEM DISPOSES OF AN APPEAL IS NOT RELATED IN ANY WAY TO THE
PURPOSES SERVED BY THE LIMITATIONS THAT PEARCE PLACED ON RESENTENCING. 
THUS, CONSIDERATIONS OF FAIRNESS ROOTED IN THE CONSTITUTION LEAD ME TO
CONCLUDE THAT CASES IN THE PIPELINE WHEN A NEW CONSTITUTIONAL RULE IS
ANNOUNCED MUST BE GIVEN THE BENEFIT OF THAT RULE. 

THE RULE ADOPTED BY THE COURT TODAY IS CURIOUS IN ANOTHER WAY.  THE
COURT APPEARS TO SAY THAT A DEFENDANT WHO FAILED TO APPEAL HIS FIRST
CONVICTION OUT OF "A REASONABLY BASED FEAR OF ACTUAL VINDICTIVENESS,"
ANTE, AT 52 N. 5, IS ENTITLED TO REVIEW OF HIS CONVICTION.  CF. FAY V.
NOIA, 372 U.S. 391, 396 - 397, N. 3 (1963).  /3/ IF HIS APPEAL IS
SUCCESSFUL, HIS NEW TRIAL WILL OCCUR AFTER THE DATE OF DECISION IN
PEARCE.  THUS, ANY NEW SENTENCE WILL BE SUBJECT TO THE LIMITATIONS
IMPOSED BY PEARCE.  THE RATHER STRANGE RESULT IS THAT SOMEONE LIKE
PAYNE, WHO ADHERED TO STATE PROCEDURAL RULES FOR VINDICATING HIS RIGHT
TO AN ERROR-FREE TRIAL, MAY RECEIVE AN ENHANCED SENTENCE WITHOUT
LIMITATION, WHILE SOMEONE WHO DID NOT ADHERE TO THOSE RULES MAY NOT
HAVE HIS SENTENCE INCREASED UNLESS THE REQUIREMENTS OF PEARCE ARE MET. 
I SUPPOSE THAT ANOMALIES ARE OCCASIONALLY INEVITABLE, BUT I SUBMIT THAT
WE SHOULD CONSIDER VERY CAREFULLY ANY RULE OF RETROACTIVITY THAT HAS
THE EFFECT OF PENALIZING COMPLIANCE WITH STATE PROCEDURAL RULES. 

        II 

THE COURT APPLIES THE NOW-FAMILIAR THREE-PRONGED TEST TO DETERMINE
WHETHER PEARCE SHOULD BE GIVEN RETROACTIVE EFFECT, AND IT REACHES THE
NOW-FAMILIAR RESULT OF NONRETROACTIVITY.  /4/  I BELIEVE THAT
PRINCIPLED ADJUDICATION REQUIRES THE COURT TO ABANDON THE CHARADE OF
CAREFULLY BALANCING COUNTERVAILING CONSIDERATIONS WHEN DECIDING THE
QUESTION OF RETROACTIVITY.  INSPECTING THE CASES DEALING WITH
RETROACTIVITY, I FIND THAT THEY APPEAR TO FALL INTO THREE GROUPS.  IN
SOME CASES, THIS COURT HAS HELD THAT THE TRIAL COURT LACKED
JURISDICTION IN THE TRADITIONAL SENSE.  SEE, E. G., BENTON V. MARYLAND,
395 U.S. 784 (1969); WALLER V. FLORIDA, 397 U.S. 387 (1970).  THOSE
HOLDINGS HAVE BEEN MADE FULLY RETROACTIVE.  ASHE V. SWENSON, 397 U.S.
436 (1970); ROBINSON V. NEIL, 409 U.S. 505 (1973).  CF. UNITED STATES
V. U.S. COIN & CURRENCY, 401 U.S. 715 (1971).  IN OTHER CASES THE COURT
ANNOUNCED A RULE THAT WAS CENTRAL TO THE PROCESS OF DETERMINING GUILT
OR INNOCENCE, AND WHOSE APPLICATION MIGHT WELL HAVE LED TO THE
ACQUITTAL OF THE DEFENDANT.  SEE, E. G., GIDEON V. WAINWRIGHT, 372 U.S.
335 (1963); IN RE WINSHIP, 397 U.S. 358 (1970).  THOSE HOLDINGS TOO
HAVE BEEN GIVEN RETROACTIVE EFFECT.  PICKELSIMER V. WAINWRIGHT, 375
U.S. 2 (1963); IVAN V. V. NEW YORK, 407 U.S. 203 (1972).  CF. ADAMS V.
ILLINOIS, 405 U.S. 278 (1972).  ALL OTHER CONSTITUTIONAL RULES OF
CRIMINAL PROCEDURE HAVE BEEN GIVEN PROSPECTIVE EFFECT ONLY.  /5/ 

I CONFESS THAT I HAVE BEEN UNABLE TO DISCOVER A PRINCIPLED BASIS FOR
THAT THREEFOLD CLASSIFICATION, BUT IT DOES APPEAR TO BE THE FACTOR
OPERATING IN OUR CASES.  AND I SEE LITTLE POINT IN FORCING LOWER COURTS
TO FLOUNDER WITHOUT SUBSTANTIAL GUIDANCE IN THE MORASS OF OUR CASES, BY
INFORMING THEM THAT THEY ARE TO APPLY A BALANCING TEST, WHEN IN FACT IT
INVARIABLY OCCURS THAT THE BALANCING TEST RESULTS IN HOLDINGS OF
NONRETROACTIVITY.  FURTHERMORE, IT DEMEANS THIS COURT TO PRETEND TO
CONSIDER A VARIETY OF FACTORS IF, NO MATTER HOW THOSE FACTORS ARE
ARRAYED, THE FESULT IS PREDETERMINED.  AN OPEN-MINDED EXAMINATION OF
THIS COURT'S CASES ON RETROACTIVITY COMPELS THE CONCLUSION THAT THE
COURT DIVIDES CASES INTO SEVERAL CLASSES, AND IT IS THE CLASSIFICATION,
NOT THE THREE-PRONGED TEST, THAT DETERMINES THE RESULT.  OUR TIME WOULD
BE BETTER SPENT, I THINK, IN ATTEMPTING TO DELINEATE THE BASIS FOR
THOSE CLASSIFICATIONS, AND TO DERIVE THEM FROM SOME CONSTITUTIONAL
PRINCIPLES, RATHER THAN IN "APPLYING" A BALANCING TEST.  INDEED, IT
MIGHT HAVE BEEN THOUGHT THAT ROBINSON V. NEIL, SUPRA, HAD BEGUN THE
TASK OF RATIONALIZING OUR CASES, BUT APPARENTLY THAT IS NOT SO.

        III 

THE HOLDING OF PEARCE IS A SIMPLE ONE:  THE DUE PROCESS CLAUSE
REQUIRES STATES TO ADOPT PROCEDURES DESIGNED TO MINIMIZE THE
POSSIBILITY THAT A NEW SENTENCE AFTER A SUCCESSFUL APPEAL WILL BE BASED
IN PART ON VINDICTIVENESS FOR THE DEFENDANT'S HAVING TAKEN THE APPEAL. 
THE COURT AGREES THAT "THIS BASIC DUE PROCESS PROTECTION . . . IS
AVAILABLE EQUALLY TO DEFENDANTS RESENTENCED BEFORE AND AFTER THE DATE
OF DECISION IN THAT CASE."  ANTE, AT 50, 51.  THE QUESTION THEN IS WHAT
PROCEDURES ARE REQUIRED TO INSURE THAT THAT PROTECTION HAS BEEN
AFFORDED DEFENDANTS RESENTENCED BEFORE PEARCE WAS DECIDED.  THIS
QUESTION, LIKE MANY OF THOSE INVOLVING RETROACTIVITY, RELATES TO THE
INTEGRITY OF THE JUDICIAL PROCESS, NOT TO THE LIMITATIONS PLACED BY THE
CONSTITUTION ON POLICE BEHAVIOR.  ONE CAN AGREE THAT THE PRECISE
REQUIREMENTS OF PEARCE ARE INAPPROPRIATE FOR RETROSPECTIVE APPLICATION,
LARGELY BECAUSE THEY THEY ARE PROCEDURALLY ILL-ADAPTED TO THE PROBLEM,
YET DISAGREE WITH THE COURT THAT THE STATES NEED DO NOTHING AT ALL TO
CONVINCE A REVIEWING COURT THAT VINDICTIVENESS PLAYED NO PART IN THE
RESENTENCING.  SEE, E. G., COMMONWEALTH V. ALLEN, 443 PA. 96, 102, 277
A. 2D 803 (1971). 

THE ISSUE NEED NOT BE FRAMED AS THE "RETROACTIVITY" OF PEARCE.  THE
PROBLEM, AS I SEE IT, IS TO DEVISE PROCEDURES THAT WILL PERMIT
REVIEWING COURTS TO DETERMINE WHETHER THE REQUIREMENTS OF THE DUE
PROCESS CLAUSE HAVE BEEN MET.  IN PEARCE WE CONCLUDED THAT IT WOULD BE
ENOUGH FOR A JUDGE, ON RESENTENCING A DEFENDANT, TO STATE HIS REASONS
FOR IMPOSING A MORE SEVERE SENTENCE.  IF THE MORE SEVERE SENTENCE WAS
BASED UPON OBJECTIVE INFORMATION, PLACED ON THE RECORD, CONCERNING THE
CONDUCT OF THE DEFENDANT AFTER THE FIRST SENTENCING, THE MORE SEVERE
SENTENCE WAS PERMISSIBLE.  SUCH A RULE, ALTHOUGH NOT ABSOLUTELY
GUARANTEEING THAT VINDICTIVENESS WILL PLAY NO PART, /6/  NONETHELESS
SUBSTANTIALLY REDUCES THE POSSIBILITY THAT IT WILL, WITHOUT
SIGNIFICANTLY INTERFERING WITH THE JUDGE'S LAWFUL DISCRETION. 

A RATHER SIMILAR PROCEDURE WOULD ACCOMPLISH THE SAME RESULT FOR
DEFENDANTS RESENTENCED BEFORE PEARCE WAS DECIDED.  IF A DEFENDANT DID
RECEIVE A HARSHER SENTENCE AFTER A SUCCESSFUL APPEAL, AND HE SEEKS TO
HAVE IT REDUCED TO THE ORIGINAL SENTENCE, THE STATE SHOULD BE REQUIRED
TO PRESENT EVIDENCE THAT THE NEW SENTENCE WAS BASED ON POST-SENTENCE
CONDUCT.  IN THE ABSENCE OF SUCH EVIDENCE, THE SENTENCE MUST BE
REDUCED.  /7/  THE COURT SUGGESTS THAT SUCH A PROCEDURE WOULD "OCCASION
WINDFALL BENEFITS FOR SOME DEFENDANTS WHO HAVE SUFFERED NO
CONSTITUTIONAL DEPRIVATION."  ANTE, AT 53.  THAT ASSERTION MUST BE
CONSIDERED MORE CLOSELY. 

AS THE COURT NOTES, THERE IS LITTLE EVIDENCE THAT MORE SEVERE
SENTENCES ARE OFTEN IMPOSED.  IT CITES AN INFORMAL SURVEY SUGGESTING
THAT 12% OF RECONVICTED DEFENDANTS RECEIVE HIGHER SENTENCES.  ANTE, AT
56 N. 13.  EVEN IF THAT ESTIMATE IS ONLY HALF AS LARGE AS THE ACTUAL
FIGURE FOR PRE-PEARCE CASES, STILL THERE ARE CLEARLY VERY FEW
DEFENDANTS WHO HAVE RECEIVED HARSHER SENTENCES.  WITH RESPECT TO MANY
OF THEM, IT WILL NOT BE DIFFICULT TO PRODUCE EVIDENCE SUPPORTING THE
NEW SENTENCE.  AS IN MOON V. MARYLAND, 398 U.S. 319 (1970), AND ODOM V.
UNITED STATES, 400 U.S. 23 (1970), THE SENTENCING JUDGE MIGHT INDICATE
BY AFFIDAVIT OR ORDER THE GROUNDS FOR HIS SENTENCING DECISION.  IF
MEMORIES HAVE FADED, THE STATE MIGHT SHOW THAT A PRESENTENCE REPORT
CONSIDERED BY THE JUDGE RECITED POST-SENTENCE CONDUCT BY THE DEFENDANT
THAT WOULD JUSTIFY THE HARSHER SENTENCE. 

THUS, I DO NOT THINK THAT IT CAN FAIRLY BE SAID THAT THE
REQUIREMENTS I WOULD IMPOSE WOULD IN FACT RESULT IN WINDFALL BENEFITS
TO "INNUMERABLE" DEFENDANTS, ANTE, AT 55; THEY WOULD ACCRUE TO THOSE
FEW DEFENDANTS WHO WERE CONVICTED, SUCCESSFULLY APPEALED, WERE
RECONVICTED, AND RECEIVED HARSHER SENTENCES SO LONG AGO THAT THE STATE
CANNOT PRODUCE EVIDENCE FROM WHICH A REVIEWING COURT COULD FIND THAT
VINDICTIVENESS PLAYED NO PART IN THE SENTENCING DECISION.  /8/  AND THE
"WINDFALL BENEFITS" WOUDL IMPAIR NO SUBSTANTIAL STATE INTEREST IN
INCARCERATING THOSE FEW OFFENDERS.  UNLIKE THE SUPPRESSION OF PROBATIVE
EVIDENCE THAT MIGHT SEVERELY LIMIT THE STATE'S ABILITY TO SECURE A
CONVICTION OF A PERSON WHO UNDOUBTEDLY COMMITTED AN OFFENSE, HERE THE
REMEDY IS SIMPLY THE REDUCTION OF SENTENCE.  NORTH CAROLINE V. RICE,
404 U.S. 244, 247 (1971).  THE SENTENCE TO BE SERVED WOULD BE ONE THAT
HAD ALREADY BEEN FOUND APPROPRIATE BY ONE JUDGE, AND WOULD THEREFORE
SATISFY THE VARIOUS INTERESTS ADVANCED BY INCARCERATION.  /9/ 

FOR THESE REASONS, I DISSENT. 

MR. JUSTICE STEWART JOINS PART III OF THIS OPINION. 

/1/  THE STATE DID PRESENT AN AFFIDAVIT FROM THE SENTENCING JUDGE IN
THIS CASE.  THE MICHIGAN SUPREME COURT HELD THAT IT DID NOT SATISFY THE
REQUIREMENT OF NORTH CAROLINA V. PEARCE, 395 U.S. 711, 726 (1969), THAT
MORE SEVERE SENTENCES CAN BE JUSTIFIED ONLY BY "OBJECTIVE INFORMATION
CONCERNING IDENTIFIABLE CONDUCT ON THE PART OF THE DEFENDANT OCCURRING
AFTER THE TIME OF THE ORIGINAL SENTENCING PROCEEDING."  SEE PEOPLE V.
PAYNE, 386 MICH. 84, 97, 191 N.W. 2D 375, 381 (1971).  PETITIONER
CONTENDS THAT THIS HOLDING WAS ERRONEOUS.  PETITION FOR WRIT OF
CERTIORARI 5 - 6.  THE COURT DOES NOT ADDRESS THIS CONTENTION, NOR
SHALL I. 

/2/  SINCE PAYNE'S APPEAL WAS PENDING WHEN PEARCE WAS DECIDED, I
NEED NOT CONSIDER WHETHER DIFFERENT CONSIDERATIONS, SUCH AS THE
DEFENDANT'S FAILURE TO RAISE THE ISSUE IN SEEKING REVIEW FROM THIS
COURT OR TO PERSUADE US ON THE MERITS, MIGHT SUFFICE UNDER THE DUE
PROCESS CLAUSE TO JUSTIFY DIFFERENT TREATMENT OF DEFENDANTS WHOSE
SENTENCES HAD BECOME FINAL. 

/3/  MR. JUSTICE HARLAN, DISSENTING IN FAY V. NOIA, 372 U.S. 391,
475 (1963), SUGGESTED THAT THE POSSIBILITY OF AN ENHANCED SENTENCE
AFTER A SUCCESSFUL APPEAL, ACCORDING TO THE COURT, PRECLUDED THE STATE
FROM RELYING ON A FAILURE TO APPEAL AS AN ADEQUATE STATE GROUND
SUPPORTING THE DENIAL OF RELIEF UNDER FEDERAL HABEAS CORPUS.  ON HIS
INTERPRETATION, THEN, FAY ANTICIPATED THE HOLDING IN PEARCE. 

/4/  IN HOLDING VARIOUS RULINGS RETROACTIVE, THIS COURT HAS GIVEN
ONLY THE MOST CURSORY NOD TO THE THREE-PRONGED TEST.  SEE, E. G.,
ROBERTS V. RUSSELL, 392 U.S. 293 (1968); MCCONNELL V. RHAY, 393 U.S. 2
(1968); ARSENAULT V. MASSACHUSETTS, 393 U.S. 5 (1968). 

/5/  LINKLETTER V. WALKER, 381 U.S. 618 (1965), GIVING A LIMITED
RETROACTIVE EFFECT TO MAPP V. OHIO, 367 U.S. 643 (1961), IS AN ANOMALY
AT ODDS WITH THE COURT'S SUBSEQUENT TREATMENT OF PROBLEMS OF
RETROACTIVITY AND CAN BE EXPLAINED ONLY BY THE COURT'S UNFAMILIARITY
WITH THOSE PROBLEMS WHEN THE CASE WAS DECIDED.  SEE ALSO JOHNSON V. V.
NEW JERSEY, 384 U.S. 719 (1966). 

/6/  FOR EXAMPLE, THE SENTENCING JUDGE, HAD HE CONSIDERED THE CASE
AS AN INITIAL MATTER, MIGHT HAVE IMPOSED A SENTENCE SHORTER THAN THAT
IMPOSED AT THE FIRST TRIAL, BUT, OUT OF VINDICTIVENESS, HE MIGHT DECIDE
TO REIMPOSE THE ORIGINAL SENTENCE.  THE PROCEDURES OUTLINED IN PEARCE
CANNOT PREVENT THIS. 

/7/  I ASSUME THAT THE COURT'S RELIANCE ON THE CONTINUING
AVAILABILITY OF THE "FOUNDATIONAL" RIGHT MEANS THAT AN OFFENDER WHO
SHOWS THAT VINDICTIVENESS PLAYED A PART IN HIS RESENTENCING IS ENTITLED
TO RELIEF.  I WOULD SIMPLY SHIFT THE BURDEN OF PROOF TO THE STATE,
WHICH HAS BETTER ACCESS TO THE RELEVANT FACTS. 

/8/  STATE COURTS, CLOSER TO THE PROBLEMS OF ADMINISTERING THE RULE
I SUGGEST, HAVE WIDELY THOUGHT THAT THOSE BURDENS ARE NOT SUBSTANTIAL. 
SEE, E. G., STONOM V. WAINWRIGHT, 235 SO. 2D 545 (FLA. APP. 1970);
PEOPLE V. BAZE, 43 ILL. 2D 298, 253 N.E. 2D 392 (1969); STATE V.
PILCHER, 171 N.W. 2D 251 (IOWA 1969); HORD V. COMMONWEALTH, 450 S.W. 2D
530 (KY. 1970); STATE V. RENTSCHLER, 444 S.W. 2D 453 (MO. 1969);
COMMONWEALTH V. ALLEN, 443 PA. 96, 277 A. 2D 803 (1971); DENNY V.
STATE, 47 WIS. 2D 541, 178 N.W. 2D 38 (1970). 

/9/  THE COURT'S CONCLUSION THAT PEARCE WAS NOT FORESHADOWED BY
DECISIONS IN THIS COURT OR BY A TREND OF LOWER COURT DECISIONS IS
SOMEWHAT MISLEADING.  THIS COURT'S DECISION IN GREEN V. UNITED STATES,
355 U.S. 184 (1957), RAISED SUBSTANTIAL QUESTIONS UNDER THE DOUBLE
JEOPARDY CLAUSE OF THE CONSTITUTIONALITY OF ENHANCED SENTENCES AFTER A
SUCCESSFUL APPEAL.  ALSO, ONE READING OF FAY V. NOIA, 372 U.S. 391
(1963), SUGGESTED BY THE DISSENT OF MR. JUSTICE HARLAN, IS THAT A STATE
MAY NOT BURDEN THE RIGHT TO APPEAL WITH THE POSSIBILITY OF AN ENHANCED
SENTENCE.  AND PRIOR TO PEARCE, THE FIRST, SECOND, FOURTH, FIFTH, AND
SEVENTH CIRCUITS HAD HELD THAT ENHANCED SENTENCES AFTER RECONVICTION
COULD BE JUSTIFIED ONLY IN LIMITED CIRCUMSTANCES.  SEE MARANO V. UNITED
STATES, 374 F. 2D 583 (CA1 1967); UNITED STATES V. COKE, 404 F. 2D 836
(CA2 1968) (EN BANC); PATTON V. NORTH CAROLINA, 381 F. 2D 636 (CA4
1967); SIMPSON V. RICE, 396 F. 2D 499 (CA5 1968); UNITED STATES V.
WHITE, 382 F. 2D 445 (CA7 1967).  SO HAD THE CALIFORNIA SUPREME COURT,
IN A POWERFUL OPINION BY JUSTICE TRAYNOR.  PEOPLE V. HENDERSON, 60 CAL.
2D 482, 386 P. 2D 677 (1963).  FINALLY, A "LERNED AND EFFECTIVE
ARTICLE," AS JUDGE FRIENDLY CALLED IT IN UNITED STATES V. COKE, SUPRA,
ARGUING THE SAME POINT, APPEARED IN 1965.  VAN ALSTYNE, IN GIDEON'S
WAKE:  HARSHER PENALTIES AND THE "SUCCESSFUL" CRIMINAL APPELLANT, 74
YALE L. J. 606 (1965).  I WOULD THINK THAT THESE DECISIONS AND
COMMENTARY HAD PREPARED THE GROUND RATHER WELL FOR PEARCE, AS THE COURT
CONCEDES, ANTE, AT 56 N. 12.  YET IF THE RESULT WAS FORESHADOWED, IT IS
NOT UNREASONABLE TO REQUIRE STATES NOW TO SUPPLEMENT THE RECORD, SO
THAT IT WILL BE CLEAR THAT UNCONSTITUTIONAL SENTENCES WERE NOT
IMPOSED.  BECAUSE IT INSISTS ON TREATING THE ISSUE HERE AS A QUESTION
AS RETROACTIVITY, THE COURT DOES NOT ADDRESS THIS ARGUMENT. 

JOHN A. SMIETANKA ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE FRANK J. KELLEY, ATTORNEY GENERAL OF MICHIGAN, ROBERT A.
DERENGOSKI, SOLICITOR GENERAL, AND RONALD J. TAYLOR. 

JAMES R. NEUHARD ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS ARTHUR J. TARNOW. 
..END :



















NLRB V. BOEING CO. 412 U.S. 67 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 71 - 1607.  ARGUED MARCH 26, 1973--DECIDED MAY 21, 1973;

           148 U.S. APP. D.C. 119, 459 F.2D 1143, REVERSED. 


    THE ADJUDICATION BY THE NATIONAL LABOR RELATION BOARD (NLRB)

  UNDER ^ 8 (B) (1) (A) OF THE NATIONAL LABOR RELATIONS ACT OF AN

  UNFAIR LABOR PRACTICE ALLEGEDLY COMMITTED BY A UNION DOES NOT

  INCLUDE AUTHORITY TO DETERMINE WHETHER THE AMOUNT OF A

  DISCIPLINARY FINE LEVIED BY THE UNION AGAINST A MEMBER IS

  REASONABLE, THE ISSUE BEING ONE OF INTERNAL UNION AFFAIRS OVER

  WHICH THE NLRB EXERCISED NO JURISDICTION.  PP. 71 - 78. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, WHITE, MARSHALL, AND POWELL, JJ., JOINED.  BURGER, C. J.,
FILED A DISSENTING OPINION, POST, P. 78.  DOUGLAS, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C. J., AND BLACKMUN, J., JOINED,
POST, P. 79. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER THE NATIONAL LABOR
RELATIONS BOARD REQUIRED BY ^ 8 (B) (1) (A) OF THE NATIONAL LABOR
RELATIONS ACT /1/  TO INQUIRE INTO THE REASONABLENESS OF A DISCIPLINARY
FINE IMPOSED BY A UNION UPON A MEMBER WHEN THE BOARD EXERCISES ITS
ADMITTED AUTHORITY UNDER THAT SECTION TO DETERMINE WHETHER THE FINE
OTHERWISE CONSTITUTES AN UNFAIR LABOR PRACTICE.  THE BOARD HELD THAT
THE VALIDITY OF UNION FINES UNDER THE ACT DOES NOT DEPEND ON THEIR
BEING REASONABLE IN AMOUNT.  BOOSTER LODGE NO. 405, 185 N.L.R.B. 380,
383 N. 16, 75 L.R.R.M. 1004, 1007 N. 16 (1970).  ON PETITION FOR
JUDICIAL REVIEW OF THIS DETERMINATION, THE COURT OF APPEALS HELD THAT
AN UNREASONABLY LARGE FINE IS COERCIVE AND RESTRAINING WITHIN THE
MEANING OF ^ 8 (B) (1) (A), AND REMANDED THE CASE TO THE BOARD WITH
DIRECTIONS TO CONSIDER "QUESTIONS RELATING TO THE REASONABLENESS OF THE
FINES IMPOSED BY THE UNION."  BOOSTER LODGE NO. 405, INTERNATIONAL
ASSOCIATION OF MACHINISTS V. NLRB, 148 U.S. APP. D.C. 119, 137, 459 F.
2D 1143, 1161 (1972).  WE GRANTED CERTIORARI, 409 U.S. 1074 (1972), AND
NOW REVERSE THE JUDGMENT BELOW. 

FROM MAY 16, 1963, THROUGH SEPTEMBER 15, 1965, BOOSTER LODGE NO.
405, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL
CIO, AND THE BOEING CO. WERE PARTIES TO A COLLECTIVE-BARGAINING
AGREEMENT.  UPON EXPIRATION OF THIS AGREEMENT THE UNION CALLED A LAWFUL
ECONOMIC STRIKE AT THE COMPANY'S MICHOUD PLANT IN NEW ORLEANS AND AT
OTHER LOCATIONS.  AS OF OCTOBER 2, 1965, THE PARTIES SIGNED A NEW
COLLECTIVE-BARGAINING AGREEMENT AND THE STRIKERS THEREAFTER RETURNED TO
WORK.  BOTH AGREEMENTS CONTAINED MAINTENANCE-OF-MEMBERSHIP CLAUSES THAT
REQUIRED UNION MEMBERS TO RETAIN THEIR MEMBERSHIP DURING THE CONTRACT
TERM.  NEW EMPLOYEES WERE REQUIRED TO NOTIFY THE UNION AND THE COMPANY
WITHIN 40 DAYS OF ACCEPTING EMPLOYMENT IF THEY ELECTED NOT TO JOIN THE
UNION. 

DURING THE 18-DAY STRIKE SOME 143 EMPLOYEES OUT OF 1,900 PRODUCTION
AND MAINTENANCE EMPLOYEES IN THE BARGAINING UNIT AT THE MICHOUD PLANT
CROSSED THE PICKET LINES AND RETURNED TO WORK.  ALL OF THESE EMPLOYEES
WERE UNION MEMBERS AT THE TIME THE STRIKE BEGAN, ALTHOUGH SOME OF THEM
TENDERED THEIR RESIGNATIONS EITHER BEFORE OR AFTER CROSSING THE PICKET
LINES.  /2/  IN LATE OCTOBER OR EARLY NOVEMBER 1965 THE UNION NOTIFIED
THESE EMPLOYEES THAT CHARGES HAD BEEN PREFERRED AGAINST THEM FOR
VIOLATING THE INTERNATIONAL UNION'S CONSTITUTION.  THE CONSTITUTION
PROVIDES PENALTIES FOR THE "IMPROPER CONDUCT OF A MEMBER," WHICH TERM
INCLUDES "(ACCEPTING EMPLOYMENT . . . IN AN ESTABLISHMENT WHERE A
STRIKE . . . EXISTS."  IN ACCORDANCE WITH APPROPRIATE UNION PROCEDURES,
INCLUDING NOTICE AND OPPORTUNITY FOR A HEARING, ALL STRIKE-BREAKERS
WERE FOUND GUILTY, FINED $450, AND BARRED FROM HOLDING UNION OFFICE FOR
A PERIOD OF FIVE YEARS.  /3/  WHILE SOME OF THE FINES WERE REDUCED AND
SOME PARTIAL PAYMENTS RECEIVED BY THE UNION, NO MEMBER PAID THE FULL
$450.  /4/  AFTER WARNING MEMBERS TO PAY THEIR FINES OR FACE THE
CONSEQUENCES, THE UNION FILED SUITS IN STATE COURT AGAINST NINE
INDIVIDUAL EMPLOYEES TO COLLECT THE FINES.  NONE OF THESE SUITS HAS
BEEN FINALLY ADJUDICATED. 

IN FEBRUARY 1966 THE COMPANY FILED A CHARGE WITH THE LABOR BOARD
ALLEGING THAT THE ATTEMPTED COURT ENFORCEMENT OF THE FINES VIOLATED ^ 8
(B) (1) (A) OF THE NATIONAL LABOR RELATIONS ACT.  THE ALLEGATIONS WERE
BASICALLY TWOFOLD:  FIRST, THAT THE UNION COMMITTED AN UNFAIR LABOR
PRACTICE BY FINING EMPLOYEES WHO HAD RESIGNED FROM THE UNION, AN ISSUE
THAT WE CONSIDER IN THE COMPANION CASE THAT FOLLOWS, MACHINISTS &
AEROSPACE WORKERS V. NLRB, POST, P. 84; AND, SECOND, THAT AS TO THE
MEMBERS WHO WERE OTHERWISE VALIDLY FINED, THE FINES WERE UNREASONABLE
IN AMOUNT.  THEREAFTER THE BOARD'S GENERAL COUNSEL ISSUED A COMPLAINT
AND THE CASE WAS HEARD BY A TRIAL EXAMINER.  WITH RESPECT TO THE SECOND
ISSUE, THE TRIAL EXAMINER DETERMINED THAT THE FINES WERE IMPERMISSIBLY
EXCESSIVE, BUT THE BOARD REFUSED TO ADOPT HIS CONCLUSION.  IT RELIED ON
A CASE DECIDED THE SAME DAY, MACHINISTS, LOCAL LODGE 504 (ARROW
DEVELOPMENT CO.), 185 N.L.R.B. 365, 75 L.R.R.M. 1008 (1970), REVERSED
SUB NOM.  O'REILLY V. NLRB, 472 F. 2D 426 (CA9 1972), IN WHICH IT HELD
THAT CONGRESS DID NOT INTEND TO GIVE THE BOARD AUTHORITY TO REGULATE
THE SIZE OF UNION FINES OR TO ESTABLISH STANDARDS WITH RESPECT TO A
FINE'S REASONABLENESS. 

IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION "TO
RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE RIGHTS
GUARANTEED IN SECTION 157 OF THIS TITLE."  29 U.S.C. ^ 158 (B) (1)
(A).  /5/  AMONG THE ^ 157 RIGHTS GUARANTEED TO EMPLOYEES IS THE RIGHT
TO REFRAIN FROM ANY OF THE CONCERTED ACTIVITIES DESCRIBED IN THAT
(A) WAS NOT INTENDED TO GIVE THE BOARD POWER TO REGULATE INTERNAL UNION
AFFAIRS, INCLUDING THE IMPOSITION OF DISCIPLINARY FINES, WITH THEIR
CONSEQUENT COURT ENFORCEMENT, AGAINST MEMBERS WHO VIOLATE THE UNIONS'
CONSTITUTIONS AND BYLAWS.  NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S.
175 (1967); SCOFIELD V. NLRB, 394 U.S. 423 (1969).  IN ALLIS-CHALMERS
WE HELD THAT COURT ENFORCEMENT OF FINES RANGING FROM $20 TO $100 FOR
CROSSING PICKET LINES DID NOT "RESTRAIN OR COERCE" EMPLOYEES WITHIN THE
MEANING OF THE ACT.  AND IN SCOFIELD WE HELD THAT THE UNION DID NOT
VIOLATE THE ACT IN IMPOSING FINES OF $50 AND $100 ON MEMBERS FOR
VIOLATING A UNION RULE RELATING TO PRODUCTION CEILINGS. 

IN DECIDING THESE CASES, THE COURT SEVERAL TIMES REFERRED TO THE
UNIONS' IMPOSITION OF "REASONABLE" FINES.  IN PARTICULAR, THE SCOFIELD
COURT CONCLUDED "THAT THE UNION RULE IS VALID AND THAT ITS ENFORCEMENT
BY REASONABLE FINES DOES NOT CONSTITUTE THE RESTRAINT OR COERCION
PROSCRIBED BY ^ 8 (B) (1) (A)."  394 U.S., AT 436 (EMPHASIS ADDED). 
THE COMPANY CONTENDS, NOT ILLOGICALLY, THAT THE COURT'S USE OF THE
ADJECTIVE "REASONABLE" WAS INTENDED TO SUGGEST TO THE BOARD THAT AN
UNREASONABLE FINE WOULD AMOUNT TO AN UNFAIR LABOR PRACTICE. 

THIS INTERPRETATION, HOWEVER, PERMISSIBLE AS IT MAY BE, IS ONLY
DICTA, SINCE IN BOTH ALLIS-CHALMERS AND IN SCHFIELD THE REASONABLENESS
OF THE FINES WAS ASSUMED.  388 U.S., AT 192 - 193, N. 30; 394 U.S., AT
430.  /7/  BEING SQUARELY PRESENTED WITH THE ISSUE IN THIS CASE, WE
RECEDE FROM THE IMPLICATIONS OF THE DICTA IN THESE EARLIER CASES. 
WHILE "UNREASONABLE" FINES MAY BE MORE COERCIVE THAN "REASONABLE"
FINES, ALL FINES ARE COERCIVE TO A GREATER OR LESSER DEGREE.  THE
UNDERLYING BASIS FOR THE HOLDINGS OF ALLIS-CHALMERS AND SCHFIELD WAS
NOT THAT REASONABLE FINES WERE NONCOERCIVE UNDER THE LANGUAGE OF ^ 8
(B) (1) (A) OF THE ACT, BUT WAS INSTEAD THAT THOSE PROVISIONS WERE NOT
INTENDED BY CONGRESS TO APPLY TO THE IMPOSITION BY THE UNION OF FINES
NOT AFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP AND NOT OTHERWISE
PROHIBITED BY THE ACT.  THE REASON FOR THIS DETERMINATION, IN TURN, WAS
THAT CONGRESS HAD NOT INTENDED BY ENACTING THIS SECTION TO REGULATE THE
INTERNAL AFFAIRS OF UNIONS TO THE EXTENT THAT WOULD BE REQUIRED IN
ORDER TO BASE UNFAIR LABOR PRACTICE CHARGES ON THE LEVYING OF SUCH
FINES. 

THE COURT'S EXAMINATION OF THE LEGISLATIVE HISTORY OF THIS PROVISION
IN ALLIS-CHALMERS LED TO THE CONCLUSION THAT: 

     "WHAT LEGISLATIVE MATERIALS THERE ARE DEALING WITH ^ 8 (B) (1)

  (A) CONTAIN NOT A SINGLE WORD REFERRING TO THE APPLICATION OF ITS

  PROHIBITIONS TO TRADITIONAL INTERNAL UNION DISCIPLINE IN GENERAL,

  OR DISCIPLINARY FINES IN PARTICULAR.  ON THE CONTRARY THERE ARE A

  NUMBER OF ASSURANCES BY ITS SPONSORS THAT THE SECTION WAS NOT

  MEANT TO REGULATE THE INTERNAL AFFAIRS OF UNIONS."  388 U.S., AT

  185 - 186 (EMPHASIS ADDED).  /8/

IN SCHFIELD WE DECIDED THAT CONGRESS INTENDED TO DISTINGUISH BETWEEN
THE EXTERNAL AND THE INTERNAL ENFORCEMENT OF UNION RULES, AND THAT
THEREFORE THE BOARD WOULD HAVE AUTHORITY TO PASS ON THOSE RULES
AFFECTING AN INDIVIDUAL'S EMPLOYMENT STATUS BUT NOT ON HIS UNION
MEMBERSHIP STATUS.  394 U.S., AT 428 - 430. 

INQUIRY BY THE BOARD INTO THE MULTIPLICITY OF FACTORS THAT THE
PARTIES AND THE COURT OF APPEALS CORRECTLY THOUGHT TO HAVE A BEARING ON
THE ISSUE OF REASONABLENESS WOULD NECESSARILY LEAD THE BOARD TO A
SUBSTANTIAL INVOLVEMENT IN STRICTLY INTERNAL UNION AFFAIRS.  WHILE THE
LINE MAY NOT ALWAYS BE CLEAR BETWEEN THOSE MATTERS THAT ARE INTERNAL
AND THOSE THAT ARE EXTERNAL, TO THE EXTENT THAT THE BOARD WAS REQUIRED
TO EXAMINE INTO SUCH QUESTIONS AS A UNION'S MOTIVATION FOR IMPOSING A
FINE IT WOULD BE DELVING INTO INTERNAL UNION AFFAIRS IN A MANNER WHICH
WE HAVE PREVIOUSLY HELD CONGRESS DID NOT INTEND.  /9/  GIVEN THE
RATIONALE OF ALLIS-CHALMERS AND SCHFIELD, THE BOARD'S CONCLUSION THAT ^
8 (B) (1) (A) OF THE ACT HAS NOTHING TO SAY ABOUT UNION FINES OF THIS
NATURE, WHATEVER THEIR SIZE, IS CORRECT.  ISSUES AS TO THE
REASONABLENESS OR UNREASONABLENESS OF SUCH FINES MUST BE DECIDED UPON
THE BASIS OF THE LAW OF CONTRACTS, VOLUNTARY ASSOCIATIONS, OR SUCH
OTHER PRINCIPLES OF LAW AS MAY BE APPLIED IN A FORUM COMPETENT TO
ADJUDICATE THE ISSUE.  UNDER OUR HOLDING, STATE COURTS WILL BE WHOLLY
FREE TO APPLY STATE LAW TO SUCH ISSUES AT THE SUIT OF EITHER THE UNION
OR THE MEMBER FINED. 

OUR CONCLUSION IS ALSO SUPPORTED BY THE BOARD'S LONG-STANDING
ADMINISTRATIVE CONSTRUCTION TO THE SAME EFFECT.  AT LEAST SINCE 1954,
IT HAS BEEN THE BOARD'S CONSISTENT POSITION THAT IT HAS "NOT BEEN
EMPOWERED BY CONGRESS . . . TO PASS JUDGMENT ON THE PENALTIES A UNION
MAY IMPOSE ON A MEMBER SO LONG AS THE PENALTY DOES NOT IMPAIR THE
MEMBER'S STATUS AS AN EMPLOYEE."  LOCAL 283, UAW, 145 N.L.R.B. 1097,
1104 (1964).  SEE ALSO MINNEAPOLIS STAR & TRIBUNE CO., 109 N.L.R.B.
727, 34 L.R.R.M. 1431 (1954).  WE HAVE HELD IN ANALOGOUS SITUATIONS
THAT SUCH A CONSISTENT AND CONTEMPORANEOUS CONSTRUCTION OF A STATUTE BY
THE AGENCY CHARGED WITH ITS ENFORCEMENT IS ENTITLED TO GREAT DEFERENCE
BY THE COURTS.  GRIGGS V. DUKE POWER CO., 401 U.S. 424, 433 - 434
(1971); UDALL V. TALLMAN, 380 U.S. 1, 16 (1965).  /10/ 

THE COURT OF APPEALS AND THE COMPANY HAVE SUGGESTED SEVERAL POLICY
REASONS WHY THE BOARD SHOULD NOT LEAVE THE DETERMINATIONS OF
REASONABLENESS ENTIRELY TO THE STATE COURTS.  THEIR BASIC REASONS ARE,
FIRST, THAT MORE UNIFORMITY IN THE DETERMINATION OF WHAT IS REASONABLE
WILL RESULT IF THE BOARD SUGGESTS STANDARDS AND, SECOND, THAT MORE
EXPERTISE IN LABOR MATTERS WILL BE BROUGHT TO BEAR IF THE ISSUE IS
DECIDED BY THE BOARD RATHER THAN SOLELY BY THE COURTS.  EVEN IF WE WERE
TO CONCEDE THE RELEVANCE OF POLICY FACTORS IN DETERMINING CONGRESSIONAL
INTENT, WE ARE NOT PERSUADED THAT THE BOARD IS NECESSARILY THE BETTER
FORUM FOR DETERMINING THE REASONABLENESS OF A FINE. 

AS WE NOTED IN ALLIS-CHALMERS, COURT ENFORCEMENT OF UNION FINES IS
NOT A RECENT INNOVATION BUT HAS BEEN KNOWN AT LEAST SINCE 1867.  388
U.S., AT 182 N. 9.  SEE ALSO SUMMERS, THE LAW OF UNION DISCIPLINE:
WHAT THE COURTS DO IN FACT, 70 YALE L.J. 175 (1960).  THE RELATIONSHIP
BETWEEN A MEMBER AND HIS UNION IS GENERALLY VIEWED AS CONTRACTUAL IN
NATURE, INTERNATIONAL ASSOCIATION OF MACHINISTS V. GONZALES, 356 U.S.
617, 618 (1958); SCHFIELD V. NLRB, 394 U.S., AT 426 N. 3; NLRB V.
TEXTILE WORKERS, 409 U.S. 213, 217 (1972), AND THE LOCAL LAW OF
CONTRACTS OR VOLUNTARY ASSOCIATIONS USUALLY GOVERNS THE ENFORCEMENT OF
THIS RELATIONSHIP.  NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S., AT 182
AND 193 N. 32; SCHFIELD V. NLRB, SUPRA, AT 426 N. 3. 

WE ALLUDED TO STATE COURT ENFORCEMENT OF UNUSUALLY HARSH UNION
DISCIPLINE IN ALLIS-CHALMERS WHEN WE STATED THAT "STATE COURTS, IN
REVIEWING THE IMPOSITION OF UNION DISCIPLINE, FIND WAYS TO STRIKE DOWN
'DISCIPLINE (WHICH) INVOLVES A SEVERE HARDSHIP.'"  388 U.S., AT 193 N.
32, QUOTING SUMMERS, LEGAL LIMITATIONS ON UNION DISCIPLINE, 64 HARV. L.
REV. 1049, 1078 (1951).  THE BOARD ASSUMED THAT IN VIEW OF THIS
STATEMENT, OUR REFERENCE TO "REASONABLE" FINES, WHEN REASONABLENESS WAS
NOT IN ISSUE, IN ALLIS-CHALMERS AND IN SCHFIELD, WAS MERELY ADVERTING
TO THE USUAL STANDARD APPLIED BY STATE COURTS IN DECIDING WHETHER TO
ENFORCE UNION-IMPOSED FINES.  THE BOARD READS THESE CASES, THEREFORE,
AS ENCOURAGING STATE COURTS TO USE A REASONABLENESS STANDARD, NOT AS A
DIRECTIVE TO THE BOARD.  /11/ 

OUR REVIEW OF STATE COURT CASES DECIDED BOTH BEFORE AND AFTER OUR
DECISIONS IN ALLIS-CHALMERS AND SCOFIELD REVEALS THAT STATE COURTS
APPLYING STATE LAW ARE QUITE IWLLING TO DETERMINE WHETHER DISCIPLINARY
FINES ARE REASONABLE IN AMOUNT.  /12/  INDEED, THE EXPERTISE REQUIRED
FOR A DETERMINATION OF REASONABLENESS MAY WELL BE MORE EVIDENT IN A
JUDICIAL FORUM THAT IS CALLED UPON TO ASSESS REASONABLENESS IN VARYING
FACTUAL CONTEXTS THAN IT IS IN A SPECIALIZED AGENCY.  IN ASSESSING THE
REASONABLENESS OF DISCIPLINARY FINES, FOR EXAMPLE, STATE COURTS ARE
OFTEN ABLE TO DRAW ON THEIR EXPERIENCE IN AREAS OF THE LAW APART FROM
LABOR RELATIONS.  /13/ 

NOR IS IT CLEAR, AS CONTENDED BY THE COURT OF APPEALS, THAT THE
BOARD'S SETTING OF STANDARDS OF REASONABLENESS WILL NECESSARILY RESULT
IN GREATER UNIFORMITY IN THIS AREA AVEN IF UNIFORMITY IS THOUGHT TO BE
A DESIRABLE GOAL.  SINCE STATE COURTS WILL HAVE JURISDICTION TO
DETERMINE REASONABLENESS IN THE ENFORCEMENT CONTEXT IN ANY EVENT, THE
BOARD'S INDEPENDENT DETERMINATION OF REASONABLENESS IN AN UNFAIR LABOR
PRACTICE CONTEXT MIGHT WELL YIELD A CONFLICT WHEN THE TWO FORUMS ARE
CALLED UPON TO REVIEW THE SAME FINE.     FOR ALL OF THE FOREGOING
REASONS, WE CONCLUDE THAT THE BOARD WAS WARRANTED IN DETERMINING THAT
WHEN THE UNION DISCIPLINE DOES NOT INTERFERE WITH THE EMPLOYEE-EMPLOYER
RELATIONSHIP OR OTHERWISE VIOLATE A POLICY OF THE NATIONAL LABOR
RELATIONS ACT, /14/  THE CONGRESS DID NOT AUTHORIZE IT "TO EVALUATE THE
FAIRNESS OF UNION DISCIPLINE METED OUT TO PROTECT A LEGITIMATE UNION
INTEREST."  /15/  THE JUDGMENT OF THE COURT OF APPEALS IS, THEREFORE,

              REVERSED. 

/1/  "(B) IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION OR ITS AGENTS-- 

"(1) TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7:  PROVIDED, THAT THIS PARAGRAPH SHALL
NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN . .
. ."  61 STAT. 141, 29 U.S.C. ^ 158 (B) (1) (A). 

/2/  OF THE 143 EMPLOYEES WHO CROSSED THE PICKET LINES, 24 MADE NO
ATTEMPT TO RESIGN FROM THE UNION, 61 RESIGNED BEFORE CROSSING THE
PICKET LINES, AND 58 RESIGNED AFTER CROSSING THE PICKET LINES AND
REPORTING FOR WORK.  THE VALIDITY OF THE FINES IMPOSED AGAINST THOSE
WHO RESIGNED FROM THE UNION IS CONSIDERED IN A COMPANION CASE,
MACHINISTS & AEROSPACE WORKERS V. NLRB, POST, P. 84.  SEE ALSO NLRB V.
TEXTILE WORKERS, 409 U.S. 213 (1972). 

/3/  THE UNION CONSTITUTION PROVIDES THAT MEMBERS FOUND GUILTY OF
MISCONDUCT AFTER NOTICE AND A HEARING ARE SUBJECT TO "REPRIMAND, FINE,
SUSPENSION, OR EXPULSION FROM MEMBERSHIP OR ANY LESSER PENALTY OR
COMBINATION."  THE CONSTITUTION SETS NO MAXIMUM DOLLAR LIMITATION ON
FINES. 

/4/  THE BASE INCOME OF THE EMPLOYEES FINED RANGES FROM $95 TO $145
FOR A 40-HOUR WORKWEEK. 

FINES WERE REDUCED TO 50% OF WAGES EARNED DURING THE STRIKE FOR 35
MEMBERS WHO APPEARED FOR THE UNION TRIAL, APOLOGIZED FOR THEIR ACTIONS,
AND PLEDGED LOYALTY TO THE UNION.  EIGHTEEN OF THESE REDUCED FINES HAVE
BEEN PAID IN FULL. 

/5/  THE PROVISO TO THIS SECTION STATES:  "THAT THIS PARAGRAPH SHALL
NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN." 
IT HAS BEEN THE BOARD'S POSITION THAT THIS PROVISO AUTHORIZES THE
UNIONS TO IMPOSE DISCIPLINARY FINES ON UNION MEMBERS.  MINNEAPOLIS STAR
& TRIBUNE CO., 109 N.L.R.B. 727, 34 L.R.R.M. 1431 (1954); WISCONSIN
MOTOR CORP., 145 N.L.R.B. 1097, 55 L.R.R.M. 1085 (1964); ALLIS-CHALMERS
MFG. CO., 149 N.L.R.B. 67, 57 L.R.R.M. 1242 (1964).  THIS COURT,
HOWEVER, IN HOLDING THAT COURT ENFORCEMENT OF UNION FINES WAS NOT AN
UNFAIR LABOR PRACTICE IN NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S. 175
(1967), RELIED ON CONGRESSIONAL INTENT ONLY WITH RESPECT TO THE FIRST
PART OF THIS SECTION.  THE PARTIES' PRINCIPAL CONTENTIONS IN THIS CASE
DO NOT DEPEND ON THE SCOPE OF THE PROVISO AND WE DO NOT CONSIDER ITS
INTERPRETATION NECESSARY TO OUR CONCLUSION. 

/6/  IN ITS ENTIRETY ^ 7 PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM NAY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 158 (A) (3) OF THIS
TITLE."  29 U.S.C. ^ 157. 

/7/  MOREOVER, SINCE THE BOARD HAS CONSISTENTLY OVER A LONG PERIOD
OF TIME INTERPRETED THE ACT AS NOT GIVING IT AUTHORITY TO EXAMINE THE
REASONABLENESS OF DISCIPLINARY FINES, INFRA, AT 74 - 75, IT IS NOT
LIKELY THAT THE COURT SPECIFICALLY INTENDED, BY THE USE OF A SINGLE
ADJECTIVE, AND WITHOUT MENTIONING THE LABOR BOARD CASES TO THE
CONTRARY, TO OVERTURN THE BOARD'S INTERPRETATION OF THE ACT.  NOR CAN
IT BE ARGUED THAT THE COURT WAS UNAWARE OF THE BOARD'S INTERPRETATION,
FOR THE SCOFIELD COURT STATED THAT IN ALLIS-CHALMERS IT "ESSENTIALLY
ACCEPTED THE POSITION OF THE NATIONAL LABOR RELATIONS BOARD DATING FROM
MINNEAPOLIS STAR & TRIBUNE CO., 109 N.L.R.B. 727 (1954) WHERE THE BOARD
ALSO DISTINGUISHED INTERNAL FROM EXTERNAL ENFORCEMENT IN HOLDING THAT A
UNION COULD FINE A MEMBER FOR HIS FAILURE TO TAKE PART IN PICKETING
DURING A STRIKE . . . ."  SCOFIELD V. NLRB, 394 U.S. 423, 428 (1969). 

/8/  AS WE ALSO NOTED IN ALLIS-CHALMERS, THIS INTERPRETATION IS
SUPPORTED BY THE LANDRUM-GRIFFIN ACT, WHERE "CONGRESS EXPRESSLY
RECOGNIZED THAT A UNION MEMBER MAY BE 'FINED, SUSPENDED, EXPELLED, OR
OTHERWISE DISCIPLINED," AND ENACTED ONLY PROCEDURAL REQUIREMENTS TO BE
OBSERVED.  73 STAT. 523, 29 U.S.C. ^ 411 (A) (5)."  NLRB V. ALLIS
CHALMERS MFG. CO., SUPRA, AT 194. 

/9/  CF. MOTOR COACH EMPLOYEES V. LOCKRIDGE, 403 U.S. 274, 296
(1971); U.O.P. NORPLEX V. NLRB, 445 F. 2D 155, 158 (CA7 1971) ("THE
REASONABLENESS OF THE FINES IS A MATTER FOR THE STATE COURT TO
DETERMINE SHOULD THE UNION SEEK JUDICIAL ENFORCEMENT OF THE FINES"). 

/10/  IT IS ALSO NOTEWORTHY THAT WHEN CONGRESS HAS INTENDED THE
BOARD TO EXAMINE A FEE FOR BEING EXCESSIVE OR UNREASONABLE, IT HAS
SPECIFICALLY SO STATED AND HAS PROVIDED STATUTORY STANDARDS FOR THE
BOARD TO FOLLOW IN MAKING SUCH A DETERMINATION.  SEE, E. G., 29 U.S.C.
^ 158 (B) (5) (UNION INITIATION FEES). 

/11/  THE BOARD'S INTERPRETATION OF OUR DECISIONS IS BASICALLY THE
FOLLOWING: 

"THUS, THE COURT'S FINDINGS THAT THE FINES IN THOSE CASES WERE
REASONABLE SEEMS DIRECTED TO ENFORCING COURTS, ENCOURAGING THOSE COURTS
TO MAKE AN INDEPENDENT DETERMINATION OF THE REASONABLENESS OF THE FINE
IN EACH CASE PRESENTED, IN THE SAME FASHION AS COURTS LIMIT OTHER UNION
DISCIPLINE WHICH IMPOSES A SEVERE HARDSHIP.  SUCH CONSIDERATIONS ARE OF
AN EQUITABLE NATURE RATHER THAN OF THE CHARACTER OF RESTRAINT AND
COERCION WITH WHICH THE NATIONAL LABOR RELATIONS ACT TREATS." 
MACHINISTS, LOCAL LODGE 504 (ARROW DEVELOPMENT CO.), 185 N.L.R.B. 365,
368, 75 L.R.R.M. 1008.  1010 (1970). 

/12/  AUTO WORKERS LOCAL 283 V. SCOFIELD, 76 L.R.R.M. 2433 (WIS.
SUP. CT. 1971) ($100 FINE DEEMED REASONABLE); FARNUM V. KURTZ, 70
L.R.R.M. 2035 (LOS ANGELES MUN.  CT. 1968) ($592 FINE DEEMED
UNREASONABLE AND REDUCED TO $100); MCCAULEY V. FEDERATION OF MUSICIANS,
26 L.R.R.M. 2304 (PA. CT. OF COMMON PLEAS 1950) ($300 FINE DEEMED
EXCESSIVE AND REDUCED TO $100); NORTH JERSEY NEWSPAPER GUILD LOCAL NO.
173 V. RAKOS, 110 N.J. SUPER.  77, 264 A. 2D 453 (1970) ($750 FINE
REDUCED TO $500, WHICH WAS DEEMED REASONABLE); WALSH V. COMMUNICATIONS
WORKERS OF AMERICA, LOCAL 2336, 259 MD. 608, 271 A. 2D 148 (1970) ($500
FINE DEEMED UNREASONABLE; LOCAL 248, UNITED AUTO WORKERS V. NATZKE, 36
WIS. 2D 237, 153 N.W. 2D 602 (1967) ($100 FINE UPHELD); JOST V.
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 9408, 13 CAL. APP. 3D SUPP. 7,
91 CAL. RPTR.  722 (1970) ($299 FINE UPHELD, THE COURT STATING THAT "IT
IS THE SETTLED LAW IN THIS COUNTRY THAT SUCH A FINE BECOMES A DEBT
ENFORCEABLE BY THE COURTS IN AN AMOUNT THAT IS NOT UNREASONABLY
LARGE."  ID., AT 12, 91 CAL. RPTR., AT 725). 

/13/  SEE, E. G., FARNUM V. KURTZ, SUPRA, AT 2041, WHERE A MUNICIPAL
COURT JUDGE, IN REDUCING A UNION-IMPOSED FINE OF $592 TO $100, REVEALED
THAT THE KIND OF EXPERTISE REQUIRED BY THIS TYPE OF CASE IS NOT THAT OF
A TECHNICAL KNOWLEDGE OF LABOR LAW: 

"BASED UPON THE FACTS HEREIN AND THE COURT'S EXPERIENCES (IN PASSING
JUDGMENT IN THOUSANDS OF MISDEMEANOR CASES), THE FINE ASSESSED IS MUCH
TO LARGE AND UNREASONABLE.  THE COURT FINDS THAT A FINE OF $100.00
SERVES THE ENDS OF JUSTICE AND IS MORE IN KEEPING WITH THE
CIRCUMSTANCES HEREIN AND REASONABLE." 

/14/  SCOFIELD V. NLRB, 394 U.S., AT 429; NLRB V. MARINE WORKERS,
391 U.S. 418 (1968). 

/15/  MACHINISTS, LOCAL LODGE 504 (ARROW DEVELOPMENT CO.), 185
N.L.R.B. 365, 638, 75 L.R.R.M. 1008, 1011 (1970).  THE BOARD HAS LONG
HELD THAT THE ACT PROSCRIBES CERTAIN UNACCEPTABLE METHODS OF UNION
COERCION, SUCH AS PHYSICAL VIOLENCE TO FORCE AN EMPLOYEE TO JOIN A
UNION OR TO PARTICIPATE IN A STRIKE.  IN RE MARITIME UNION, 78 N.L.R.B.
971, ENFORCED, 175 F. 2D 686 (CA2 1949), CITED IN SCOFIELD V. NLRB,
SUPRA, AT 428 N. 4. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

IT IS ODD, TO SAY THE LEAST, TO FIND A UNION URGING ON US SEVERE
LIMITATIONS ON NLRB AUTHORITY, AND TELLING US THAT STATE COURTS ARE THE
PROPER FORUM TO RESOLVE QUESTIONS REGARDING THE REASONABLENESS OF FINES
IMPOSED ON WORKERS FOR VIOLATION OF UNION RULES.  FOR YEARS, THERE HAS
BEEN UNRELENTING UNION OPPOSITION TO STATE COURT "INTERVENTION" INTO
INDUSTRIAL DISPUTES AND UNION ACTIVITIES.  WE HAVE BEEN TOLD COUNTLESS
TIMES THAT THE "EXPERTISE" OF THE LABOR BOARD, BASED ON ITS OVERVIEW
AND INTIMATE FAMILIARITY WITH LABOR PROBLEMS, IS ESSENTIAL IN THIS
AREA. 

A UNION MUST, OF COURSE, HAVE SOME DISCIPLINARY POWERS OR IT WOULD
DISINTEGRATE.  HOWEVER, THE POWER TO DISCIPLINE CAN EASILY TURN FROM A
MEANS OF ENFORCING VALID RULES TO AN OPPRESSIVE AND COERCIVE DEVICE OF
RETRIBUTION, A WEAPON WHICH, WHEN USED TO EXTREMES, MAY DEPRIVE A
WORKING MAN OF HIS VERY MEANS OF SUSTENANCE.  WHETHER A PARTICULAR FINE
IS REQUIRED IN A PARTICULAR SITUATION INVOLVES A WEIGHING OF THE
DELICATE BALANCE OF RELATIONS BETWEEN THE EMPLOYERS, EMPLOYEES, AND THE
UNION INVOLVED.  SUCH AN INTIMATE KNOWLEDGE OF LABOR RELATIONS HAS
CONSISTENTLY BEEN ASCRIBED TO THE BOARD, OFTEN BY THE UNIONS.  IT IS
THE BOARD THAT DEALS WITH SUCH MATTERS ON A DAILY BASIS.  IT IS THE
BOARD THAT HAS THE JURISDICTION AND EXPERIENCE TO DEVISE AND EMPLOY
NATIONAL STANDARDS TO GOVERN UNION CONDUCT; THERE ARE VALID REASONS FOR
ESSENTIAL UNIFORMITY AND CONSISTENCY IN THE THE MATTERS OF FINES.  TO
ISOLATE THIS SENSITIVE SUBJECT AND THRUST IT ON THE STATE COURTS IS
CONTRARY TO THE ENTIRE HISTORY OF THE FEDERAL LABOR STATUTES AND OPENS
THE DOOR TO A WIDE DISPARITY OF FINES FOR THE SAME CONDUCT IN DIFFERENT
STATES. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN CONCUR, DISSENTING. 

I DISSENT FROM THE HOLDING OF THE COURT THAT THE BOARD HAS NO
JURISDICTION TO DETERMINE THE "REASONABLENESS" OF THE FINES PLACED BY
THE UNION ON ITS DISSIDENT MEMBERS. 

THE UNION AND BOEING HAD AN EFFECTIVE COLLECTIVE-BARGAINING
AGREEMENT FROM MAY 16, 1963 THROUGH SEPTEMBER 15, 1965.  ON THE
EXPIRATION OF THAT CONTRACT THE UNION STRUCK AGAINST BOEING, CAUSING A
WORK STOPPAGE THAT LASTED 18 DAYS.  ON OCTOBER 2, 1965, A NEW
COLLECTIVE AGREEMENT WAS REACHED AND WORK WAS RESUMED. 

DURING THE STRIKE, ABOUT 143 EMPLOYEES AT THE MICHOUD PLANT CROSSED
THE PICKET LINE AND REPORTED FOR WORK.  ALL OF THESE HAD BEEN UNION
MEMBERS DURING THE 1963 - 1965 CONTRACT PERIOD.  SOME OF THE 143 WHO
WORKED DURING THE STRIKE DID NOT RESIGN FROM THE UNION; 119 DID RESIGN-
61 BEFORE THEY CROSSED THE PICKET LINE AND RETURNED TO WORK; 58
RESIGNED DURING THE COURSE OF THE STRIKE, BUT AFTER THEY HAD CROSSED
THE PICKET LINE.  ALL OF THESE RESIGNATIONS WERE SUBMITTED AFTER THE
EXPIRATION OF THE 1963 - 1965 COLLECTIVE AGREEMENT.  THE UNION NEVER
WARNED MEMBERS ON THIS OR ON EARLIER OCCASIONS, THAT DISCIPLINARY
MEASURES COULD OR WOULD BE TAKEN AGAINST MEMBERS WHO CROSSED THE PICKET
LINE. 

AFTER THE NEW COLLECTIVE AGREEMENT WAS REACHED, THE UNION NOTIFIED
ALL MEMBERS WHO HAD CROSSED THE PICKET LINE TO WORK DURING THE STRIKE
THAT CHARGES HAD BEEN LAID AGAINST THEM AND THAT THEY WOULD BE TRIED BY
THE UNION FOR "IMPROPER" CONDUCT, THE UNION'S CONSTITUTION PERMITTING
DISCIPLINARY MEASURES, INCLUDING "REPRIMAND, FINE, SUSPENSION AND/OR
EXPULSION FROM MEMBERSHIP, OR ANY LESSER PENALTY OR ANY COMBINATION." 

THOSE WHO APPEARED FOR TRIAL AND THOSE WHO DID NOT APPEAR WERE FOUND
GUILTY AND FINED $450 EACH AND BARRED FROM HOLDING A UNION OFFICE FOR
FIVE YEARS.  THE FINES OF SOME 35 WHO APPEARED AND APOLOGIZED AND TOOK
A LOYALTY OATH WERE REDUCED TO 50% OF THEIR EARNINGS DURING THE STRIKE;
AND THE PROHIBITION AGAINST HOLDING UNION OFFICE WAS REDUCED IN THOSE
CASES. 

THE UNION SENT OUT A WRITTEN NOTICE SAYING THAT THE UNPAID FINES HAD
BEEN REFERRED TO AN ATTORNEY FOR COLLECTION AND THAT THE REDUCED FINES
WOULD BE RESTORED TO $450 IF NOT PAID.  SUITS AGAINST NINE EMPLOYEES
WERE FILED IN A STATE COURT TO COLLECT THE FINES PLUS ATTORNEYS' FEES
AND INTEREST; AND THEY ARE UNRESOLVED. 

BOEING FILED A CHARGE OF AN UNFAIR LABOR PRACTICE AGAINST THE UNION
UNDER ^ 8 (B) (1) (A) OF THE ACT.  /1/  THE GENERAL COUNSEL ISSUED A
COMPLAINT AND THE BOARD DECIDED THAT THE UNION HAD VIOLATED ^ 8 (B) (1)
(A) EXCEPT FOR THE FINES ON MEMBERS FOR CROSSING THE PICKET LINE TO
WORK AND FOR THE FINES ON THOSE WHO RESIGNED AFTER RETURNING TO WORK
DURING THE STRIKE, FOR WORK PERFORMED DURING THE STRIKE PRIOR TO THEIR
RESIGNATIONS.  BUT THE BOARD, ONE MEMBER DISSENTING, REFUSED TO PASS ON
THE REASONABLENESS OF THE FINES, HOLDING IT LACKED THE POWER TO DO SO. 

THE UNFAIR LABOR PRACTICE UNDER ^ 8 (B) (1) (A) IS THE ACTION OF A
UNION "TO RESTRAIN OR COERCE" AN EMPLOYEE FROM THE "RIGHT TO REFRAIN
FROM" ASSISTING A UNION AS THAT RIGHT IS DEFINED IN ^ 7.  IN SCOFIELD
V. NLRB, 394 U.S. 423, WE UPHELD A UNION RULE AND CONCLUDED "THAT ITS
ENFORCEMENT BY REASONABLE FINES DOES NOT CONSTITUTE THE RESTRAINT OR
COERCION PROSCRIBED BY ^ 8 (B) (1) (A)."  ID., AT 436 (EMPHASIS
ADDED).  SEE ALSO NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S. 175.  THE
IMPOSITION OF A NOMINAL FINE OF $1 MIGHT SUIT THE CIRCUMSTANCES OF A
CASE, UHERE A $1,000 FINE WOULD BE MONSTROUS.  A NOMINAL FINE MIGHT BE
JUSTIFIED WHERE, AS HERE, THE EMPLOYEES HAD NO WARNING THAT THEY WOULD
OR COULD BE FINED FOR WORKING BEHIND A PICKET LINE.  A FINE WHERE THE
ONLY SANCTION WOULD BE TEMPORARY SUSPENSION FROM THE UNION MIGHT BE
"REASONABLE," YET UNREASONABLE IF IT WAS COURT ENFORCEABLE, MEANING, AS
IT DOES HERE, THAT ATTORNEYS' FEES, COSTS, AND INTEREST MAY BE ADDED. 
A MEMBER WHO MUST PAY THE UNION'S ATTORNEY AS WELL AS HIS OWN IF HE
CHALLENGES THE REASONABLENESS OF A FINE IN A STATE COURT AND LOSES, MAY
WELL BE SUFFERING AN UNCONSCIONABLE PENALTY.  MOREOVER, THE FINE MAY BE
IMPOSED BY A UNION WHICH BELIEVED AS DID THE PRESENT UNION THAT THE
MEMBER HAD NO "RIGHT" TO RESIGN, THOUGH NLRB V. TEXTILE WORKERS, 409
U.S. 213, HELD TO THE CONTRARY.  THE PRESENT FINES SEEM TO BE SWOLLEN
BY THAT PREDILECTION OF THE UNION.  THE PRESENT FINES ALSO EXCEED THE
EARNINGS OF THE WORKERS DURING THE STRIKE PERIOD.  BY WHAT STANDARD CAN
THAT POSSIBLY BE JUSTIFIED?  AS MEMBER STANDARD MCCULLOCH OF THE BOARD,
DISSENTING, SAID, THE EXCESS OF THE FINES OVER THE WAGES COLLECTED
DURING THIS PERIOD IS IN ACTUAL EFFECT AN ASSESSMENT AFTER THE STRIKE
IS OVER.  IF AFTER THE STRIKE THE UNION CAUSED BOEING TO SUSPEND A
MEMBER WITHOUT PAY AFTER THE STRIKE BECAUSE HE HAD WORKED DURING THE
STRIKE, THERE COULD BE NO QUESTION BUT THAT THE UNION VIOLATED ^ 8 (B)
(1) (A).  YET, THE ASSESSMENT OF FINES GREATER THAN THE WAGES EARNED
DURING THE STRIKE HAS PRECISELY THAT EFFECT.  THUS, IN ASSESSING AN
UNREASONABLE FINE THE UNION, IN MY VIEW, GOES BEYOND THE PERMISSIBLE
BOUNDS OF REGULATING ITS INTERNAL AFFAIRS. 

IT IS NO ANSWER TO SAY THAT THE REASONABLENESS OF A FINE MAY BE
TESTED IN A STATE-COURT SUIT.  THAT ENVISAGES A RICH AND POWERFUL UNION
SUING A RICH AND POWERFUL EMPLOYEE.  EMPLOYEES, HOWEVER, ARE OFTEN AT
THE BOTTOM OF THE TOTEM POLE, INDIGENT, AND UNWORLDLY WHEN IT COMES TO
LITIGATION.  SUCH A SUIT IS LIKELY TO BE NO CONTEST.  THE BOARD
PROCEDURES, ON THE OTHER HAND, MAY BE READILY AVAILABLE.  IF AN
EMPLOYEE FILES A CHARGE WITH ANY MERIT, THE REGIONAL DIRECTOR WILL
ISSUE A COMPLAINT.  THEREAFTER, THE GENERAL COUNSEL REPRESENTS THE
EMPLOYEE, AND THE AGENCY BEARS ANY COST OF PROSECUTING THE CLAIM. 

BUT MY DIFFICULTY WITH THE COURT'S DECISION IS EVEN GREATER.  STATE
JUDGES, THOUGH HONEST AND COMPETENT, HAVE NO EXPERTISE IN LABOR
MANAGEMENT RELATIONS.  THE BOARD DOES NOT HAVE THAT EXPERTISE AND CAN
EVOLVE GUIDELINES BASED ON ITS BROAD EXPERIENCE.  IT IS SAID THAT
CONGRESS HAS PROVIDED THE BOARD WITH NO GUIDELINES FOR PASSING ON THE
"REASONABLENESS" OF UNION-IMPOSED FINES.  BUT THE BOARD THROUGH CASE-BY
CASE TREATMENT HAS BEEN DEVELOPING AN ADMINISTRATIVE COMMON LAW
CONCERNING "UNFAIR" PRACTICES OF EMPLOYERS AND UNIONS ALIKE.  WE HAVE
SAID ON OTHER OCCASIONS THAT THE "EXPERIENCE AND COMMONSENSE"  WHICH
ARE FACETS OF THE EXPERTISE OF THE BOARD, NLRB V. RADIO & TELEVISION
BROADCAST ENGINEERS, 364 U.S. 573, 582 - 583, ARE ADEQUATE FOR THE
DIFFICULT AND DELICATE RESPONSIBILITIES WHICH CONGRESS HAS ENTRUSTED TO
IT, SUBJECT OF COURSE TO JUDICIAL REVIEW.  A FINE DISCRETELY RELATED TO
A LEGITIMATE UNION NEED AND REFLECTING PRINCIPLED MOTIVATIONS UNDER THE
LAW IS ONE THING.  A FINE THAT REFLECTS THE RAW POWER EXERCISED BY A
UNION IN ITS HUNGER FOR ALL-PERVASIVE AUTHORITY OVER MEMBERS IS QUITE
ANOTHER PROBLEM.  THE LABOR BOARD, WHICH KNOWS THE NUANCES OF THIS
PROBLEM BETTER THAN ANY OTHER TRIBUNAL, IS THE KEEPER OF THE CONSCIENCE
UNDER THE ACT.  IT AND IT ALONE HAS PRIMARILY RESPONSIBILITY TO POLICE
UNIONS, AS WELL AS EMPLOYERS, IN PROTECTION OF THE RIGHTS OF WORKERS. 
IN MY VIEW IT CANNOT PROPERLY PERFORM ITS DUTIES UNDER ^ 8 (B) (1) (A)
UNLESS IT DETERMINES WHETHER THE NATURE AND AMOUNT OF THE FINE LEVIED
BY A UNION CONSTITUTE AN UNFAIR LABOR PRACTICE. 

/1/  THAT SECTION PROVIDES: 

"(B) IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS-- 

"(1) TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 157 OF THIS TITLE:  PROVIDED, THAT THIS
PARAGRAPH SHALL NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO
PRESCRIBE ITS OWN RULES WITH RESPECT TO THE ACQUISITION OR RETENTION OF
MEMBERSHIP THEREIN."  SECTION 157 PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 158 (A) (3) OF THIS
TITLE." 

NORTON J. COME ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, PETER G. NASH, AND PATRICK
HARDIN. 

SAMUEL LANG ARGUED THE CAUSE FOR RESPONDENT BOEING CO. WITH HIM ON
THE BRIEF WERE C. DALE STOUT AND FREDERICK A. KULLMAN.  BERNARD DUNAU
ARGUED THE CAUSE FOR RESPONDENT BOOSTER LODGE NO. 405, INTERNATIONAL
ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO.  WITH HIM ON
THE BRIEFS WERE PLATO E. PAPPS, LOUIS P. POULTON, AND C. PAUL BARKER. 
J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF FOR
THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING REVERSAL. 

MILTON SMITH, GERARD C. SMETANA, AND JERRY KRONENBERG FILED A BRIEF
FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICUS CURIAE
URGING AFFIRMANCE. 
..END :




MACHINISTS & AEROSPACE WORKERS V. NLRB 412 U.S. 84 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 71 - 1417.  ARGUED MARCH 26, 1973--DECIDED MAY 21, 1973;

           148 U.S. APP. D.C. 119, 459 F.2D 1143, AFFIRMED. 


    WHERE THE UNION'S CONSTITUTION AND BYLAWS ARE SILENT ON THE

  SUBJECT OF VOLUNTARY RESIGNATION FROM THE UNION, THE UNION

  COMMITTED AN UNFAIR LABOR PRACTICE WHEN IT SOUGHT COURT

  ENFORCEMENT OF FINES IMPOSED FOR STRIKEBREAKING ACTIVITIES BY

  EMPLOYEES WHO HAD RESIGNED FROM THE UNION, EVEN THOUGH THE UNION

  CONSTITUTION EXPRESSLY PROHIBITED MEMBERS FROM STRIKEBREAKING. 

  NLRB V. TEXTILE WORKERS, 409 U.S. 213. 

PER CURIAM. 

IN THIS COMPANION CASE TO NLRB V. BOEING CO., ANTE, P. 67, WE MUST
DECIDE WHETHER OUR DECISION IN NLRB V. TEXTILE WORKERS, 409 U.S. 213,
AUTHORIZES THE BOARD TO FIND THAT A UNION COMMITS AN UNFAIR LABOR
PRACTICE IN SEEKING COURT ENFORCEMENT OF FINES IMPOSED FOR
STRIKEBREAKING ACTIVITIES BY EMPLOYEES WHO HAVE RESIGNED FROM THE
UNION, EVEN THOUGH THE UNION CONSTITUTION EXPRESSLY PROHIBITS MEMBERS
FROM STRIKEBREAKING.  WE HOLD THAT IT DOES. 

ON SEPTEMBER 16, 1965, THE DAY AFTER THE EXPIRATION OF THE
COLLECTIVE-BARGAINING AGREEMENT BETWEEN BOOSTER LODGE NO. 405,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO
(THE UNION), AND THE BOEING CO. (THE COMPANY), THE UNION CALLED A
LAWFUL STRIKE AND PICKETED THE COMPANY'S MICHOUD, LOUISIANA, PLANT TO
FURTHER ITS DEMANDS FOR A NEW CONTRACT.  THE STRIKE CONTINUED FOR 18
DAYS, DURING WHICH TIME 143 OF THE 1,900 PRODUCTION AND MAINTENANCE
EMPLOYEES REPRESENTED BY THE UNION CROSSED THE PICKET LINE TO WORK. 
ALL OF THE EMPLOYEES HAD BEEN MEMBERS OF THE UNION BEFORE THE STRIKE,
/1/  BUT 61 RESIGNED THEIR MEMBERSHIP PRIOR TO RETURNING TO WORK AND
ANOTHER 58 RESIGNED AFTER THEY RETURNED TO WORK.  /2/  THESE
RESIGNATIONS WERE TENDERED IN REGISTERED OR CERTIFIED LETTERS TO THE
UNION.  NEITHER ITS CONSTITUTION NOR ITS BYLAWS CONTAINED ANY PROVISION
EXPRESSLY PERMITTING OR FORBIDDING SUCH RESIGNATIONS. 

THE STRIKE ENDED ON OCTOBER 4, 1965, AFTER RATIFICATION OF A NEW
COLLECTIVE-BARGAINING AGREEMENT BY THE UNION MEMBERSHIP.  DURING LATE
OCTOBER AND EARLY NOVEMBER, THE UNION NOTIFIED ALL EMPLOYEES WHO HAD
CROSSED THE PICKET LINE TO WORK DURING THE STRIKE THAT CHARGES HAD BEEN
PREFERRED AGAINST THEM UNDER THE UNION CONSTITUTION FOR "IMPROPER
CONDUCT OF A MEMBER" BECAUSE OF THEIR HAVING "ACCEPTED EMPLOYMENT ...
IN AN ESTABLISHMENT WHERE A STRIKE OR LOCKOUT EXISTED."  THEY WERE
ADVISED OF THE DATES OF THEIR UNION TRIALS, WHICH WERE TO BE HELD EVEN
IN THEIR ABSENCE, AND OF THEIR RIGHT TO BE REPRESENTED BY ANY COUNSEL
WHO WAS A MEMBER OF THE INTERNATIONAL UNION.  FINES WERE IMPOSED ON ALL
EMPLOYEES WHO HAD WORKED DURING THE STRIKE WITHOUT REGARD TO WHETHER OR
NOT SUCH EMPLOYEES HAD RESIGNED OR HAD REMAINED MEMBERS.  /3/  NONE OF
THE DISCIPLINED EMPLOYEES PROCESSED INTRA-UNION APPEALS.  TO THE EXTENT
THAT FINES WERE NOT PAID, /4/ THE UNION SENT WRITTEN NOTICES TO THE
OFFENDING EMPLOYEES STATING THAT THE MATTER HAD BEEN REFERRED TO AN
ATTORNEY FOR COLLECTION.  SUITS WERE INITIATED IN STATE COURT AGAINST
NINE EMPLOYEES FOR THE PURPOSE OF COLLECTING THE FINES PAID ATTORNEYS'
FEES AND INTEREST.  NONE OF THESE SUITS HAS BEEN RESOLVED. 

THE COMPANY FILED AN UNFAIR LABOR PRACTICE CHARGE WITH THE NATIONAL
LABOR RELATIONS BOARD ALLEGING THAT THE UNION HAD VIOLATED ^ 8
(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 141, 29 U.S.C.
^ 158 (B)(1)(A).  /5/  THE GENERAL COUNSEL ISSUED A COMPLAINT, AND THE
BOARD HELD THAT THE UNION VIOLATED ^ 8 (B)(1)(A), BY FINING THOSE
EMPLOYEES WHO HAD RESIGNED FROM THE UNION BEFORE RETURNING TO WORK
DURING THE STRIKE, AND BY FINING THOSE WHO HAD RESIGNED AFTER RETURNING
TO WORK TO THE EXTENT THAT SUCH FINES WERE BASED ON POST-RESIGNATION
WORK.  NO VIOLATION WAS FOUND IN THE UNION'S FINING MEMBERS FOR
CROSSING THE PICKET LINE TO WORK DURING THE STRIKE OR IN ITS FINING
THOSE EMPLOYEES WHO RESIGNED AFTER THEY RETURNED TO WORK FOR WORK
PERFORMED PRIOR TO RESIGNATION.  THE BOARD ORDERED THE UNION TO CEASE
AND DESIST FROM FINING EMPLOYEES WHO HAD RESIGNED FROM THE UNION FOR
THEIR POST-RESIGNATION WORK DURING THE STRIKE AND FROM SEEKING COURT
ENFORCEMENT OF SUCH FINES.  IT FURTHER ORDERED REIMBURSEMENT TO
EMPLOYEES WHO HAD ALREADY PAID FINES FOR ANY AMOUNT IMPOSED BECAUSE OF
POST-RESIGNATION WORK.  THE COURT OF APPEALS SUSTAINED THESE HOLDINGS,
148 U.S. APP. D.C. 119, 459 F. 2D 1143 (1972), AND, ON THE UNION'S
PETITION FOR REVIEW, WE GRANTED CERTIORARI.  409 U.S. 1074. 

IN NLRB V. TEXTILE WORKERS, 409 U.S., AT 217, WE HELD THAT WHERE A
MEMBER LAWFULLY RESIGNS FROM A UNION AND THEREAFTER ENGAGES IN CONDUCT
WHICH THE UNION RULE PROSCRIBES, THE UNION COMMITS AN UNFAIR LABOR
PRACTICE WHEN IT SEEKS ENFORCEMENT OF FINES FOR THAT CONDUCT."  SINCE
IN THAT CASE THERE WAS NO PROVISION IN THE UNION'S CONSTITUTION OR
BYLAWS LIMITING THE CIRCUMSTANCES IN WHICH A MEMBER COULD RESIGN, WE
CONCLUDED THAT THE MEMBERS WERE FREE TO RESIGN AT WILL AND THAT ^ 7 OF
THE ACT, 29 U.S.C. ^ 157, /6/ PROTECTED THAT RIGHT TO RETURN TO WORK
DURING A STRIKE WHICH HAD BEEN COMMENCED WHILE THEY WERE UNION
MEMBERS.  /7/  THE UNION'S IMPOSITION OF COURT-COLLECTIBLE FINES
AGAINST THE FORMER MEMBERS FOR SUCH WORK WAS, THEREFORE, HELD TO
VIOLATE ^ 8 (B)(1)(A). 

HERE, AS IN TEXTILE WORKERS, THE UNION'S CONSTITUTION AND BYLAWS ARE
SILENT ON THE SUBJECT OF VOLUNTARY RESIGNATION FROM THE UNION.  /8/ AND
HERE, AS THERE, WE LEAVE OPEN THE QUESTION OF THE EXTENT TO WHICH
CONTRACTUAL RESTRICTION ON A MEMBER'S RIGHT TO RESIGN MAY BE LIMITED BY
THE ACT.  SINCE THERE IS NO EVIDENCE THAT THE EMPLOYEES HERE EITHER
KNEW OF OR HAD CONSENTED TO ANY LIMITATION ON THEIR RIGHT TO RESIGN, WE
NEED "ONLY TO APPLY THE LAW WHICH NORMALLY IS REFLECTED IN OUR FREE
INSTITUTIONS--THE RIGHT OF THE INDIVIDUAL TO JOIN OR TO RESIGN FROM
ASSOCIATIONS, AS HE SEES FIT 'SUBJECT OF COURSE TO ANY FINANCIAL
OBLIGATIONS DUE AND OWING' THE GROUP WITH WHICH HE WAS ASSOCIATED." 
TEXTILE WORKERS, SUPRA, AT 216. 

THE UNION CONTENDS, HOWEVER, THAT A RESULT DIFFERENT FROM TEXTILE
WORKERS IS WARRANTED IN THIS CASE BECAUSE, EVEN THOUGH ITS CONSTITUTION
DOES NOT EXPRESSLY RESTRICT THE RIGHT TO RESIGN DURING A STRIKE, IT
DOES IMPOSE ON MEMBERS AN OBLIGATION TO REFRAIN FROM STRIKEBREAKING. 
THE UNION ASSERTS THAT THIS PROVISION HAS BEEN CONSISTENTLY INTERPRETED
TO BIND A MEMBER, NOTWITHSTANDING HIS RESIGNATION, TO ABSTAIN FROM
STRIKEBREAKING FOR THE DURATION OF AN EXISTING STRIKE.  IT URGES THAT
THIS PROVISION MAY BE ENFORCED AS A MATTER OF CONTRACT LAW AGAINST ONE
WHOSE MEMBERSHIP HAS CEASED, BECAUSE IT WAS AN OBLIGATION HE UNDERTOOK
WHILE A MEMBER. 

THE PROVISION IN THE UNION'S CONSTITUTION WHICH PROSCRIBES
STRIKEBREAKING BY ITS TERMS PURPORTS ONLY TO DEFINE "MISCONDUCT OF A
MEMBER."  NOTHING IN THE RECORD INDICATES THAT UNION MEMBERS WERE
INFORMED, PRIOR TO THE BRINGING OF THE CHARGES THAT WERE THE BASIS OF
THIS ACTION, THAT THE PROVISION WAS INTERPRETED AS IMPOSING ANY
OBLIGATION ON A RESIGNEE.  /9/  THUS, IN ORDER TO SUSTAIN THE UNION'S
POSITION, WE WOULD FIRST HAVE TO FIND, CONTRARY TO THE DETERMINATION OF
THE BOARD AND OF THE COURT OF APPEALS, THAT THE UNION CONSTITUTION BY
IMPLICATION EXTENDED ITS SANCTIONS TO NONMEMBERS, AND THEN FURTHER
CONCLUDE THAT SUCH SANCTIONS WERE CONSISTENT WITH THE ACT.  BUT WE ARE
NO MORE DISPOSED TO FIND AN IMPLIED POST-RESIGNATION COMMITMENT FROM
THE STRIKEBREAKING PROSCRIPTION IN THE UNION'S CONSTITUTION HERE THAN
WE WERE TO FIND IT FROM THE EMPLOYEES' PARTICIPATION IN THE STRIKE VOTE
AND RATIFICATION OF PENALTIES IN TEXTILE WORKERS.  /10/  ACCORDINGLY,
THE JUDGMENT OF THE COURT OF APPEALS SUSTAINING THE BOARD'S FINDING OF
AN UNFAIR LABOR PRACTICE ON THE PART OF PETITIONER UNION IS

            AFFIRMED. 

/1/  THE EXPIRED COLLECTIVE AGREEMENT CONTAINED A MAINTENANCE-OF
MEMBERSHIP PROVISION THAT REQUIRED NEW EMPLOYEES, AS A CONDITION OF
CONTINUED EMPLOYMENT, TO BECOME MEMBERS OF THE UNION UNLESS THEY
NOTIFIED BOTH THE UNION AND THE COMPANY WITHIN 40 DAYS OF ACCEPTING
EMPLOYMENT THAT THEY DID NOT WISH TO JOIN.  FURTHER, UNION MEMBERS WERE
REQUIRED TO MAINTAIN THEIR MEMBERSHIP DURING THE LIFE OF THE CONTRACT. 

/2/  THE REMAINING EMPLOYEES WHO RETURNED TO WORK DURING THE STRIKE
DID NOT RESIGN FROM THE UNION. 

/3/  A STANDARD FINE OF $450 WAS IMPOSED ON EACH OF THE DISCIPLINED
EMPLOYEES.  THE AMOUNT WAS REDUCED, HOWEVER, FOR THOSE FEW MEMBERS WHO
APPEARED AT THEIR HEARINGS, APOLIGIZED FOR THEIR ACTIONS, AND PLEDGED
LOYALTY TO THE UNION. 

/4/  NONE OF THE $450 FINES HAS BEEN PAID, BUT REDUCED FINES HAVE
BEEN PAID IN A FEW INSTANCES. 

/5/  SECTION 8 (B)(1)(A) OF THE ACT PROVIDES, IN RELEVANT PART: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR
ITS AGENTS-- 

"(1) TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7:  PROVIDED, THAT THIS PARAGRAPH SHALL
NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN . .
. ." 

/6/  SECTION 7 OF THE ACT PROVIDES, IN RELEVANT PART: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES . . . ." 

/7/  IT WAS STIPULATED IN THAT CASE THAT ALL 31 OF THE EMPLOYEES WHO
RESIGNED FROM THE UNION DURING THE STRIKE AND RETURNED TO WORK
PARTICIPATED IN THE STRIKE VOTE, AND VOTED IN FAVOR OF THE STRIKE. 
NLRB V. TEXTILE WORKERS, 409 U.S. 213, 219 N. 2 (BLACKMUN, J.,
DISSENTING). 

/8/  SINCE THE COLLECTIVE-BARGAINING AGREEMENT EXPIRED PRIOR TO THE
TIMES OF THE RESIGNATIONS, THE MAINTENANCE-OF-MEMBERSHIP CLAUSE THEREIN
WAS NO IMPEDIMENT TO RESIGNING. 

/9/  THE UNION POINTS OUT IN ITS BRIEF THAT AT THE 1972
INTERNATIONAL UNION CONVENTION ITS INTERPRETATION OF THE STRIKEBREAKING
PROSCRIPTION WAS MADE EXPLICIT.  THIS CONSTITUTIONAL AMENDMENT, MADE
SEVEN YEARS AFTER THE STRIKE HERE, IS PERSUASIVE EVIDENCE THAT IT WAS
NOT THERE BEFORE, OR AT A MINIMUM, THAT THE PROSCRIPTION THEN EXISTING
DID NOT APPRISE THE EMPLOYEES OF THEIR ASSERTED OBLIGATIONS TO THE
UNION. 

/10/  IN ITS REPLY BRIEF, THE UNION ARGUES THAT IN TEXTILE WORKERS
THERE WAS NO LIMITING RULE ON POST-RESIGNATION RETURN TO WORK DURING
THE COURSE OF THE STRIKE, BUT THAT IN THIS CASE, THE UNION CONSTITUTION
PROSCRIBED SUCH CONDUCT.  IN TEXTILE WORKERS, HOWEVER, THERE WAS A DULY
ENACTED RULE PROHIBITING ANY MEMBER FROM AIDING AND ABETTING THE
EMPLOYER DURING THE STRIKE AND SUBJECTING VIOLATORS TO A $2,000 FINE. 
ON ITS FACE, THE CONSTITUTIONAL PROSCRIPTION HERE ADVANCED IS NO
BROADER THAN THAT RULE. 

MR. JUSTICE BLACKMUN, CONCURRING IN THE JUDGMENT. 

IN NLRB V. TEXTILE WORKERS, 409 U.S. 213 (1972), THE STRIKEBREAKING
EMPLOYEES, WHILE THEY WERE MEMBERS OF THE UNION, HAD ALL VOTED TO
STRIKE.  ON THE DAY FOLLOWING THE INCEPTION OF THE STRIKE, THESE
EMPLOYEES ALSO VOTED IN FAVOR OF A UNION RESOLUTION THAT ANYONE AIDING
OR ABETTING THE COMPANY DURING THE STRIKE WOULD BE SUBJECT TO A FINE. 
/11/  AND ALL HAD PARTICIPATED IN THE STRIKE PRIOR TO RESIGNING FROM
THE UNION. 

I WAS IN SOLITARY DISSENT IN TEXTILE WORKERS, ID., AT 218.  I
EMPHASIZED THERE THAT "IT SEEMS LIKELY THAT THE THREE FACTORS OF A
MEMBER'S STRIKE VOTE, HIS RATIFICATION OF STRIKEBREAKING PENALTIES, AND
HIS ACTUAL PARTICIPATION IN THE STRIKE, WOULD BE FAR MORE RELIABLE
INDICIA OF HIS OBLIGATION TO THE UNION AND ITS MEMBERS THAN THE
PRESENCE OF BOILERPLATE PROVISIONS IN A UNION'S CONSTITUTION," ID., AT
220; THAT THE COURT'S OPINION SEEMED TO ME "TO EXALT THE FORMALITY OF
RESIGNATION OVER THE SUBSTANCE OF THE VARIOUS INTERESTS AND NATIONAL
LABOR POLICIES THAT WERE AT STAKE," ID., AT 221; THAT ^ 7 OF THE
NATIONAL LABOR RELATIONS ACT "DOES NOT NECESSARILY GIVE HIM (THE
EMPLOYEE) THE RIGHT TO ABANDON THESE (UNION) ACTIVITIES IN MIDCOURSE
ONCE HE HAS UNDERTAKEN THEM VOLUNTARILY," ID., AT 222, QUOTING FROM 446
F. 2D 369, 373; AND THAT THE POLICY OF ^ 7 WOULD NOT BE FRUSTRATED BY A
HOLDING THAT AN EMPLOYEE, IN THE CIRCUMSTANCES OF THAT CASE, COULD
"KNOWINGLY WAIVE HIS ^ 7 RIGHT TO RESIGN FROM THE UNION AND TO RETURN
TO WORK WITHOUT SANCTION."  ID., AT 222 - 223. 

THE PRESENT CASE, HOWEVER, IS A VERY DIFFERENT SITUATION.  NONE OF
THE BOEING EMPLOYEES WHO RESIGNED FROM THE UNION HAD BEEN GIVEN NOTICE
OF A STRIKEBREAKING PENALTY BEFORE THE STRIKE VOTE OR BEFORE THEIR
PARTICIPATION IN THE STRIKE.  THE IMPOSITION OF A PENALTY WAS NEVER
RATIFIED FORMALLY BY THE UNION MEMBERSHIP.  THE MEMBERS WERE NOT
NOTIFIED THAT POST-RESIGNATION STRIKEBREAKING WAS PROSCRIBED AND WOULD
SUBJECT THEM TO UNION DISCIPLINE.  AND THE PROVISION IN THE UNION'S
CONSTITUTION, REFERRED TO BY THE COURT, ANTE, AT 89, AS TO A MEMBER'S
GENERAL OBLIGATION TO REFRAIN FROM STRIKEBREAKING, SURELY DOES NOT MAKE
UP FOR THIS LACK OF NOTICE, AND IT WOULD NOT DO SO EVEN IF IT WERE
CLEARLY APPLICABLE, WHICH IT IS NOT, TO STRIKEBREAKING AFTER
RESIGNATION FROM THE UNION. 

WITHOUT EFFECTIVE NOTICE OF OBLIGATIONS THAT ARE SUPPOSED TO BE
ASSUMED, THERE CAN BE NO WAIVER OF A MEMBER'S ^ 7 RIGHT TO REFRAIN FROM
PARTICIPATION IN A LEGAL STRIKE.  IN THE ABSENCE OF SUCH NOTICE, ^ 8
(B)(1)(A) BARS THE UNION FROM SUBJECTING A MEMBER TO A CHOICE BETWEEN
THE SUBSTANTIAL OBLIGATION OF WEATHERING THE STRIKE AND THAT OF BEING
SUBJECTED TO COURT-COLLECTIBLE FINES FOR FAILURE TO DO SO.     I,
THEREFORE, JOIN IN THE COURT'S JUDGMENT. 

/11/  SEE 409 U.S., AT 218 - 219, NN. 1 AND 2. 

BERNARD DUNAU ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE PLATO E. PAPPS, LOUIS P. POULTON, AND C. PAUL BARKER. 

NORTON J. COME ARGUED THE CAUSE FOR RESPONDENT NATIONAL LABOR
RELATIONS BOARD.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, HARRIET S. SHAPIRO, PETER G. NASH, JOHN S. IRVING, AND
PATRICK HARDIN.  SAMUEL LANG ARGUED THE CAUSE FOR RESPONDENT BOEING CO.
WITH HIM ON THE BRIEF WERE C. DALE STOUT AND FREDERICK A. KULLMAN.* 
*J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF FOR
THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING REVERSAL. 

MILTON SMITH, GERARD C. SMETANA, AND JERRY KRONENBERG FILED A BRIEF
FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICUS CURIAE
URGING AFFIRMANCE. 
..END :



















RICHMOND SCHOOL BOARD V. BOARD OF EDUCATION 412 U.S. 92 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT 

     NO. 72 - 549.  ARGUED APRIL 23, 1973--DECIDED MAY 21, 1973;
462

  F. 2D 1058, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

TOGETHER WITH NO. 72 - 550, BRADLEY ET AL. V. STATE BOARD OF
EDUCATION OF VIRGINIA ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

GEORGE B. LITTLE ARGUED THE CAUSE FOR PETITIONERS IN NO. 72 - 549. 
WITH HIM ON THE BRIEFS WAS CONRAD B. MATTOX, JR. WILLIAM T. COLEMAN,
JR., ARGUED THE CAUSE FOR PETITIONERS IN NO. 72 - 550.  WITH HIM ON THE
BRIEFS WERE JACK GREENBERG, JAMES M. NABRIT III, NORMAN J. CHACHKIN,
LOUIS R. LUCAS, WILLIAM L. TAYLOR, AND ANTHONY G. AMSTERDAM. 

PHILIP B. KURLAND ARGUED THE CAUSE FOR RESPONDENTS IN BOTH CASES. 
WITH HIM ON THE BRIEF WERE EDWARD I. ROTHSCHILD, ANDREW P. MILLER,
ATTORNEY GENERAL OF VIRGINIA, WILLIAM G. BROADDHUS AND D. PATRICK LACY,
JR., ASSISTANT ATTORNEY GENERAL, FREDERICK T. GRAY, WALTER E. ROGERS,
J. SEGAR GRAVATT, R. D. MCILWAINE III, L. PAUL BYRNE, AND J. MERCER
WHITE, JR. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE URGING AFFIRMANCE IN BOTH CASES.  WITH HIM ON THE BRIEF
WERE ASSISTANT ATTORNEY GENERAL POTTINGER, A. RAYMOND RANDOLPH, JR.,
BRIAN K. LANDSBERG, AND JOHN C. HOYLE. 

BRIEFS OF AMICI CURIAE URGING REVERSAL IN BOTH CASES WERE FILED BY
STEPHEN J. POLLAK, RICHARD M. SHARP, AND DAVID RUBIN FOR THE NATIONAL
EDUCATION ASSOCIATION, AND BY MELVIN L. WULF, SANFORD JAY ROSEN, AND
PHILIP HIRSCHKOP FOR THE AMERICAN CIVIL LIBERTIES UNION ET. AL.  MARGIE
PITTS HAMES FILED A BRIEF FOR THE BLACK PARENTS OF ATLANTA, GEORGIA, AS
AMICUS CURIAE URGING REVERSAL IN NO. 72 - 550. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN BOTH CASES WERE FILED BY
DAVID I. CAPLAN FOR THE JEWISH RIGHTS COUNCIL, AND BY HAROLD H. FUHRMAN
FOR THE NATIONAL SUBURBAN LEAGUE, LTD.  CHARLES S. CONLEY AND FLOYD B.
MCKISSICK FILED A BRIEF FOR THE CONGRESS OF RACIAL EQUALITY AS AMICUS
CURIAE URGING AFFIRMANCE IN NO. 72 - 549. 
..END :






















CITY OF BURBANK ET AL. V. LOCKHEED AIR TERMINAL, INC., ET AL., 411
U.S. 624 



       APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH

           CIRCUIT 

     NO. 71 - 1637.  ARGUED FEBRUARY 20, 1973--DECIDED MAY 14,
1973; 457 F.2D 667, AFFIRMED 


    APPELLEES SOUGHT AN INJUNCTION AGAINST ENFORCEMENT OF A BURBANK

  CITY ORDINANCE PLACING AN 11 P.M. TO 7 A.M. CURFEW ON JET FLIGHTS

  FROM THE HOLLYWOOD-BURBANK AIRPORT.  THE DISTRICT COURT FOUND THE

  ORDINANCE UNCONSTITUTIONAL ON SUPREMACY CLAUSE AND COMMERCE

  CLAUSE GROUNDS, AND THE COURT OF APPEALS AFFIRMED ON THE BASIS OF

  THE SUPREMACY CLAUSE, WITH RESPECT TO BOTH PRE-EMPTION AND

  CONFLICT.  HELD:  IN LIGHT OF THE PERVASIVE NATURE OF THE SCHEME

OF FEDERAL REGULATION OF AIRCRAFT NOISE, AS REAFFIRMED AND

REINFORCED BY THE NOISE CONTROL ACT OF 1972, THE FEDERAL AVIATION

  ADMINISTRATION, NOW IN CONJUNCTION WITH THE ENVIRONMENTAL

  PROTECTION AGENCY, HAS FULL CONTROL OVER AIRCRAFT NOISE,

  PRE-EMPTING STATE AND LOCAL CONTROL.  PP. 626 - 640. 

      DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, BLACKMUN, AND POWELL, JJ., JOINED. 

  REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH STEWART,

  WHITE, AND MARSHALL, JJ., JOINED, POST, P. 640. 

[[HC625'(ORIGINAL DOCUMENT PAGE 625)' 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE COURT IN COOLEY V. BOARD OF WARDENS, 12 HOW.  299, FIRST STATED
THE RULE OF PRE-EMPTION WHICH IS THE CRITICAL ISSUED IN THE PRESENT
CASE.  SPEAKING THROUGH MR. JUSTICE CURTIS, IT SAID: 

"NOW THE POWER TO REGULATE COMMERCE, EMBRACES A VAST FIELD,
CONTAINING NOT ONLY MANY, BUT EXCEEDINGLY VARIOUS SUBJECTS, QUITE
UNLIKE IN THEIR NATURE; SOME IMPERATIVELY DEMANDING A SINGLE UNIFORM
RULE, OPERATING EQUALLY ON THE COMMERCE OF THE UNITED STATES IN EVERY
PORT; AND SOME, LIKE THE SUBJECT NOW IN QUESTION, AS IMPERATIVELY
DEMANDING THAT DIVERSITY, WHICH ALONE CAN MEET THE LOCAL NECESSITIES OF
NAVIGATION. 

     ". . . WHATEVER SUBJECTS OF THIS POWER ARE IN THEIR NATURE

  NATIONAL, OR ADMIT ONLY OF ONE UNIFORM SYSTEM, OR PLAN OF

  REGULATION, MAY JUSTLY BE SAID TO BE OF SUCH A NATURE AS TO

  REQUIRE EXCLUSIVE LEGISLATION BY CONGRESS."  ID., AT 319. 

THIS SUIT BROUGHT BY APPELLEES ASKED FOR AN INJUNCTION AGAINST THE
ENFORCEMENT OF AN ORDINANCE ADOPTED BY THE CITY COUNCIL OF BURBANK,
CALIFORNIA, WHICH MADE IT UNLAWFUL FOR A SO-CALLED PURE JET AIRCRAFT TO
TAKE OFF FROM THE HOLLYWOOD-BURBANK AIRPORT BETWEEN 11 P.M. OF ONE DAY
AND 7 A.M. THE NEXT DAY, AND MAKING IT UNLAWFUL FOR THE OPERATOR OF
THAT AIRPORT TO ALLOW ANY SUCH AIRCRAFT TO TAKE OFF FROM THAT AIRPORT
DURING SUCH PERIODS.  /1/ 

[[HC626'(ORIGINAL DOCUMENT PAGE 626)'  THE ONLY REGULARLY SCHEDULED
FLIGHT AFFECTED BY THE ORDINANCE WAS AN INTRASTATE FLIGHT OF PACIFIC
SOUTHWEST AIRLINES ORIGINATING IN OAKLAND, CALIFORNIA, AND DEPARTING
FROM HOLLYWOOD-BURBANK AIRPORT FOR SAN DIEGO EVERY SUNDAY NIGHT AT
11:30. 

THE DISTRICT COURT FOUND THE ORDINANCE TO BE UNCONSTITUTIONAL ON
BOTH SUPREMACY CLAUSE AND COMMERCE CLAUSE GROUNDS.  318 F.SUPP.  914. 
THE COURT OF APPEALS AFFIRMED ON THE GROUNDS OF THE SUPREMACY CLAUSE
BOTH AS RESPECTS PRE-EMPTION AND AS RESPECTS CONFLICT.  /2/  457 F.2D
667.  THE CASE IS HERE ON APPEAL 28 U.S.C. ^ 1254 (2).  WE NOTED
PROBABLE JURISDICTION.  409 U.S. 840.  WE AFFIRM THE COURT OF APPEALS. 

THE FEDERAL AVIATION ACT OF 1958, 72 STAT. 731, 49 U.S.C. ^ 1301 ET
SEQ., AS AMENDED BY THE NOISE CONTROL ACT OF 1972, 86 STAT. 1234, AND
THE REGULATIONS UNDER IT, 14 CFR PTS.  71, 73, 75, 77, 91, 93, 95, 97,
ARE CENTRAL TO THE QUESTION OF PRE-EMPTION. 

DECLARED TO POSSESS AND EXERCISE COMPLETE AND EXCLUSIVE NATIONAL
SOVEREIGNITY IN THE AIRSPACE OF THE UNITED STATES.  . . ." 

[[HC627'(ORIGINAL DOCUMENT PAGE 627)'  BY ^^ 1348 (A), (C) THE
ADMINISTRATOR OF THE FEDERAL AVIATION ADMINISTRATION (FAA) HAS BEEN
GIVEN BROAD AUTHORITY TO REGULATE THE USE OF THE NAVIGABLE AIRSPACE,
"IN ORDER TO INSURE THE SAFETY OF AIRCRAFT AND THE EFFICIENT
UTILIZATION OF SUCH AIRSPACE . . ."  AND "FOR THE PROTECTION OF PERSONS
AND PROPERTY ON THE GROUND.  . . ."  /3/ 

THE SOLICITOR GENERAL, THOUGH ARGUING AGAINST PRE-EMPTION, CONCEDES
THAT AS RESPECTS "AIRSPACE MANAGEMENT" THERE IS PRE-EMPTION.  THAT,
HOWEVER, IS A FATAL CONCESSION, FOR AS THE DISTRICT COURT FOUND:  "THE
IMPOSITION OF CURFEW ORDINANCES ON A NATIONWIDE BASIS WOULD RESULT IN A
BUNCHING OF FLIGHTS IN THOSE HOURS IMMEDIATELY PRECEDING THE CURFEW. 
THIS BUNCHING OF FLIGHTS DURING THESE HOURS WOULD HAVE THE TWOFOLD
EFFECT OF INCREASING AN ALREADY SERIOUS CONGESTION PROBLEM AND ACTUALLY
INCREASING, RATHER THAN RELIEVING, THE NOISE PROBLEM BY INCREASING
FLIGHTS IN THE PERIOD OF GREATEST ANNOYANCE TO SURROUNDING
COMMUNITIES.  SUCH A RESULT IS TOTALLY INCONSISTENT WITH THE OBJECTIVES
OF THE FEDERAL STATUTORY AND REGULATORY SCHEME." 

[[HC628'(ORIGINAL DOCUMENT PAGE 628)'  IT ALSO FOUND "(THE
IMPOSITION OF CURFEW ORDINANCES ON A NATIONWIDE BASIS WOULD CAUSE A
SERIOUS LOSS OF EFFICIENCY IN THE USE OF THE NAVIGABLE AIRSPACE." 

CURFEWS SUCH AS BURBANK HAS IMPOSED WOULD, ACCORDING TO THE
TESTIMONY AT THE TRIAL AND THE DISTRICT COURT'S FINDINGS, INCREASE
CONGESTION, CAUSE A LOSS OF EFFICIENCY, AND AGGRAVATE THE NOISE
PROBLEM.  FAA HAS OCCASIONALLY ENFORCED CURFEWS.  SEE VIRGINIANS FOR
DULLES V. VOLPE, 344 F.SUPP.  573.  BUT THE RECORDS SHOWS THAT FAA HAS
CONSISTENTLY OPPOSED CURFEWS, UNLESS MANAGED BY IT, IN THE INTERESTS OF
ITS MANAGEMENT OF THE "NAVIGABLE AIRSPACE." 

AS STATED BY JUDGE DOOLING IN AMERICAN AIRLINES V. HEMPSTEAD, 272
F.SUPP.  226, 230, AFF'D, 398 F.2D 369: 

"THE AIRCRAFT AND ITS NOISE ARE INDIVISIBLE; THE NOISE OF THE

  AIRCRAFT EXTENDS OUTWARD FROM IT WITH THE SAME INSEPARABILITY AS

  ITS WINGS AND TAIL ASSEMBLY; TO EXCLUDE THE AIRCRAFT NOISE FROM

  THE TOWN IS TO EXCLUDE THE AIRCRAFT; TO SET A GROUND LEVEL

  DECIBEL LIMIT FOR THE AIRCRAFT IS DIRECTLY TO EXCLUDE IT FROM THE

  LOWER AIR THAT IT CANNOT USE WITHOUT EXCEEDING THE DECIBEL

  LIMIT." 

THE NOISE CONTROL ACT OF 1972, WHICH WAS APPROVED OCTOBER 27, 1972,
PROVIDES THAT THE ADMINISTRATOR "AFTER CONSULTATION WITH APPROPRIATE
FEDERAL, STATE, AND LOCAL AGENCIES AND INTERESTED PERSONS" SHALL
CONDUCT A STUDY OF VARIOUS FACETS OF THE AIRCRAFT "NOISE" PROBLEMS AND
REPORT TO THE CONGRESS WITHIN NINE MONTHS, /4/  I.E., BY JULY 1973. 
THE 1972 ACT, BY AMENDING ^ 611 OF THE FEDERAL AVIATION ACT, /5/  ALSO
INVOLVES THE ENVIRONMENTAL PROTECTION AGENCY (EPA) IN THE COMPREHENSIVE
SCHEME OF FEDERAL CONTROL OF THE AIRCRAFT NOISE PROBLEM. 

[[HC629'(ORIGINAL DOCUMENT PAGE 629)'  UNDER THE AMENDED ^ 611 (B)
(1), FAA, AFTER CONSULTING WITH EPA, SHALL PROVIDE "FOR THE CONTROL AND
ABATEMENT OF AIRCRAFT NOISE AND SONIC BOOM, INCLUDING THE APPLICATION
OF SUCH STANDARDS AND REGULATIONS IN THE ISSUANCE, AMENDMENT,
MODIFICATION, SUSPENSION, OF REVOCATION OF ANY CERTIFICATE AUTHORIZED
BY THIS TITLE."  /6/  SECTION 611 (B) (2), AS AMENDED, PROVIDES THAT
FUTURE CERTIFICATES FOR AIRCRAFT OPERATIONS SHALL NOT ISSUE UNLESS THE
NEW AIRCRAFT NOISE REQUIREMENTS ARE MET.  /7/ 

[[HC630'(ORIGINAL DOCUMENT PAGE 630)'  SECTION 611 (C) (1), AS
AMENDED, PROVIDES THAT NOT LATER THAN JULY 1973 EPA SHALL SUBMIT TO FAA
PROPOSED REGULATIONS TO PROVIDE SUCH "CONTROL AND ABATEMENT OF AIRCRAFT
NOISE AND SONIC BOOM" AS EPA DETERMINES IS "NECESSARY TO PROTECT THE
PUBLIC HEALTH AND WELFARE."  FAA IS DIRECTED WITHIN 30 DAYS TO PUBLISH
THE PROPOSED REGULATIONS IN A NOTICE OF PROPOSED RULEMAKING.  WITHIN 60
DAYS AFTER THAT PUBLICATION, FAA IS DIRECTED TO COMMENCE A PUBLIC
HEARING ON THE PROPOSED RULES.  SECTION 611 (C) (1).  THAT SUBSECTION
GOES ON TO PROVIDE THAT WITHIN "A REASONABLE TIME AFTER THE CONCLUSION
OF SUCH HEARING AND AFTER CONSULTATION WITH EPA," FAA IS DIRECTED
EITHER TO PRESCRIBE THE REGULATIONS SUBSTANTIALLY AS SUBMITTED BY EPA,
OR PRESCRIBE THEM IN MODIFIED FORM, OR PUBLISH IN THE FEDERAL REGISTER
A NOTICE THAT IT IS NOT PRESCRIBING ANY REGULATION IN RESPONSE TO EPA'S
SUBMISSION TOGETHER WITH ITS REASONS THEREFOR. 

PROTECT THE PUBLIC HEALTH AND WELFARE FROM AIRCRAFT NOISE OR SONIC
BOOM," EPA SHALL CONSULT WITH FAA AND MAY REQUEST FAA TO REVIEW AND
REPORT TO EPA ON THE ADVISABILITY OF PRESCRIBING THE REGULATION
ORIGINALLY PROPOSED BY EPA. 

[[HC631'(ORIGINAL DOCUMENT PAGE 631)'  THAT REQUEST SHALL BE
PUBLISHED IN THE FEDERAL REGISTER; FAA SHALL COMPLETE THE REVIEW
REQUESTED AND REPORT TO EPA IN THE TIME SPECIFIED TOGETHER WITH A
DETAILED STATEMENT OF FAA'S FINDINGS AND THE REASONS FOR ITS CONCLUSION
AND SHALL IDENTIFY ANY IMPACT STATEMENT FILED UNDER ^ 102 (2) (C) OF
THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, /8/  83 STAT. 853, 42
U.S.C. ^ 4332, WITH RESPECT TO FAA'S ACTION. 

[[HC632'(ORIGINAL DOCUMENT PAGE 632)'  FAA'S ACTION, IF ADVERSE TO
EPA'S PROPOSAL, SHALL BE PUBLISHED IN THE FEDERAL REGISTER. 

CONGRESS DID NOT LEAVE FAA TO ACT AT LARGE BUT PROVIDED IN ^ 611
(D), AS AMENDED, PARTICULARIZED STANDARDS: 

   "IN PRESCRIBING AND AMENDING STANDARDS AND REGULATIONS UNDER
THIS SECTION, THE FAA SHALL-- 

     "(1) CONSIDER RELEVANT AVAILABLE DATA RELATING TO AIRCRAFT

  NOISE AND SONIC BOOM, INCLUDING THE RESULTS OF RESEARCH,

  DEVELOPMENT, TESTING, AND EVALUATION ACTIVITIES CONDUCTED

  PURSUANT TO THIS ACT AND THE DEPARTMENT OF TRANSPORTATION ACT; 

     "(2) CONSULT WITH SUCH FEDERAL, STATE, AND INTERSTATE AGENCIES
AS HE DEEMS APPROPRIATE; 

     "(3) CONSIDER WHETHER ANY PROPOSED STANDARD OR REGULATION IS

  CONSISTENT WITH THE HIGHEST DEGREE OF SAFETY IN AIR COMMERCE OR

  AIR TRANSPORTATION IN THE PUBLIC INTEREST; 

     "(4) CONSIDER WHETHER ANY PROPOSED STANDARD OR REGULATION IS

  ECONOMICALLY REASONABLE, TECHNOLOGICALLY PRACTICABLE, AND

  APPROPRIATE FOR THE PARTICULAR TYPE OF AIRCRAFT, AIRCRAFT ENGINE,

  APPLICANCE, OR CERTIFICATE TO WHICH IT WILL APPLY; AND 

     "(5) CONSIDER THE EXTENT TO WHICH SUCH STANDARD OR REGULATION

WILL CONTRIBUTE TO CARRYING OUT THE PURPOSES OF THIS SECTION." 

THE ORIGINAL COMPLAINT WAS FILED ON MAY 14, 1970; THE DISTRICT COURT
ENTERED ITS JUDGMENT NOVEMBER 30, 1970; AND THE COURT OF APPEALS
ANNOUNCED ITS JUDGMENT AND OPINION MARCH 22, 1972--ALL BEFORE THE NOISE
CONTROL ACT OF 1972 WAS APPROVED BY THE PRESIDENT ON OCTOBER 27, 1972. 

[[HC633'(ORIGINAL DOCUMENT PAGE 633)'  THAT ACT REAFFIRMS AND
REINFORCES THE CONCLUSION THAT FAA, NOW IN CONJUNCTION WITH EPA, HAS
FULL CONTROL OVER AIRCRAFT NOISE, PRE-EMPTING STATE AND LOCAL CONTROL. 

THERE IS, TO BE SURE, NO EXPRESS PROVISION OF PRE-EMPTION IN THE
1972 ACT.  THAT, HOWEVER, IS NOT DECISIVE.  AS WE STATED IN RICE V.
SANTA FE ELEVATOR CORP., 331 U.S. 218, 230: 

     "CONGRESS LEGISLATED HERE IN A FIELD WHICH THE STATES HAVE

  TRADITIONALLY OCCUPIED.  . . . SO WE START WITH THE ASSUMPTION

THAT THE HISTORIC POLICE POWERS OF THE STATES WERE NOT TO BE

  SUPERSEDED BY THE FEDERAL ACT UNLESS THAT WAS THE CLEAR AND

  MANIFEST PURPOSE OF CONGRESS.  . . . SUCH A PURPOSE MAY BE

  EVIDENCED IN SEVERAL WAYS.  THE SCHEME OF FEDERAL REGULATION MAY

  BE SO PERVASIVE AS TO MAKE REASONABLE THE INFERENCE THAT CONGRESS

  LEFT NO ROOM FOR THE STATES TO SUPPLEMENT IT. . . . OR THE ACT OF

  CONGRESS MAY TOUCH A FIELD IN WHICH THE FEDERAL INTEREST IS SO

  DOMINANT THAT THE FEDERAL SYSTEM WILL BE ASSUMED TO PRECLUDE

  ENFORCEMENT OF STATE LAWS ON THE SAME SUBJECT.  . . . LIKEWISE,

  THE OBJECT SOUGHT TO BE OBTAINED BY THE FEDERAL LAW AND THE

CHARACTER OF OBLIGATIONS IMPOSED BY IT MAY REVEAL THE SAME

  PURPOSE.  . . . OR THE STATE POLICY MAY PRODUCE A RESULT

  INCONSISTENT WITH THE OBJECTIVE OF THE FEDERAL STATUTE." 

IT IS THE PERVASIVE NATURE OF THE SCHEME OF FEDERAL REGULATION OF
AIRCRAFT NOISE THAT LEADS US TO CONCLUDE THAT THERE IS PRE-EMTPION.  AS
MR. JUSTICE JACKSON STATED, CONCURRING IN NORTHWEST AIRLINES, INC. V.
MINNESOTA, 322 U.S. 292, 303: 

"FEDERAL CONTROL IS INTENSIVE AND EXCLUSIVE.  PLANES DO NOT WANDER
ABOUT IN THE SKY LIKE VAGRANT CLOUDS. 

[[HC634'(ORIGINAL DOCUMENT PAGE 634)'

  THEY MOVE ONLY BY FEDERAL PERMISSION, SUBJECT TO FEDERAL
INSPECTION, IN THE HANDS OF FEDERALLY

CERTIFIED PERSONNEL AND UNDER AN INTRICATE SYSTEM OF FEDERAL
COMMANDS.  THE MOMENT A SHIP

  TAXIS ONTO A RUNWAY IT IS CAUGHT UP IN AN ELABORATE AND DETAILED
SYSTEM OF CONTROLS." 

BOTH THE SENATE AND HOUSE COMMITTEES INCLUDED IN THEIR REPORTS CLEAR
STATEMENTS THAT THE BILLS WOULD NOT CHANGE THE EXISTING PRE-EMPTION
RULE.  THE HOUSE REPORT STATED:  /9/  "NO PROVISION OF THE BILL IS
INTENDED TO ALTER IN ANY WAY THE RELATIONSHIP BETWEEN THE AUTHORITY OF
THE FEDERAL GOVERNMENT AND THAT OF THE STATE AND LOCAL GOVERNMENTS THAT
EXISTED WITH RESPECT TO MATTERS COVERED BY SECTION 611 OF THE FEDERAL
AVIATION ACT OF 1958 PRIOR TO THE ENACTMENT OF THE BILL."  THE SENATE
REPORT STATED: /10/  "STATES AND LOCAL GOVERNMENTS ARE PRE-EMPTED FROM
ESTABLISHING OR ENFORCING NOISE EMISSION STANDARDS FOR AIRCRAFT UNLESS
SUCH STANDARDS ARE IDENTICAL TO STANDARDS PRESCRIBED UNDER THIS BILL. 
THIS DOES NOT ADDRESS RESPONSIBILITIES OR POWERS OF AIRPORT OPERATORS,
AND NO PROVISION OF THE BILL IS INTENDED TO ALTER IN ANY WAY THE
RELATIONSHIP BETWEEN THE AUTHORITY OF THE FEDERAL GOVERNMENT AND THAT
OF STATE AND LOCAL GOVERNMENTS THAT EXISTED WITH RESPECT TO MATTERS
COVERED BY SECTION 611 OF THE FEDERAL AVIATION ACT OF 1958 PRIOR TO THE
ENACTMENT OF THE BILL." 

THESE STATEMENTS DO NOT AVAIL APPELLANTS.  PRIOR TO THE 1972 ACT, ^
611 (A) PROVIDED THAT THE ADMINISTRATOR "SHALL PRESCRIBE AND AMEND SUCH
RULES AND REGULATIONS AS HE MAY FIND NECESSARY TO PROVIDE FOR THE
CONTROL AND ABATEMENT OF AIRCRAFT NOISE AND SONIC BOOM."  82 STAT.
395.  UNDER ^ 611 (B) (3) THE ADMINISTRATOR WAS REQUIRED TO "CONSIDER
WHETHER ANY PROPOSED STANDARD, RULE, OR REGULATION IS CONSISTENT WITH
THE HIGHEST DEGREE OF SAFETY IN AIR COMMERCE OR AIR TRANSPORTATION IN
THE PUBLIC INTEREST." 

[[HC635'(ORIGINAL DOCUMENT PAGE 635)'  82 STAT. 395.  WHEN THE
LEGISLATION WHICH ADDED THIS SECTION TO THE FEDERAL AVIATION ACT /11/
WAS CONSIDERED AT SENATE HEARINGS, SENATOR MONRONEY (THE AUTHOR OF THE
1958 ACT) ASKED SECRETARY OF TRANSPORTATION BOYD WHETHER THE PROPOSED
LEGISLATION WOULD "TO ANY DEGREE PREEMPT STATE AND LOCAL GOVERNMENT
REGULATION OF AIRCRAFT NOISE AND SONIC BOOM."  /12/  THE SECRETARY
REQUESTED LEAVE TO SUBMIT A WRITTEN OPINION, AND IN A LETTER DATED JUNE
22, 1968, HE STATED:     "THE COURTS HAVE HELD THAT THE FEDERAL
GOVERNMENT PRESENTLY PREEMPTS THE FIELD OF NOISE REGULATION INSOFAR AS
IT INVOLVES CONTROLLING THE FLIGHT OF AIRCRAFT.  . . . H.R. 3400 WOULD
MERELY EXPAND THE FEDERAL GOVERNMENT'S ROLE IN A FIELD ALREADY
PREEMPTED.  IT WOULD NOT CHANGE THIS PREEMPTION.  STATE AND LOCAL
GOVERNMENTS WILL REMAIN UNABLE TO USE THEIR POLICE POWERS TO CONTROL
AIRCRAFT NOISE BY REGULATING THE FLIGHT OF AIRCRAFT." 

ACCORDING TO THE SENATE REPORT, /13/  IT WAS "NOT THE INTENT OF THE
COMMITTEE IN RECOMMENDING THIS LEGISLATION TO EFFECT ANY CHANGE IN THE
EXISTING APPORTIONMENT OF POWERS BETWEEN THE FEDERAL AND STATE AND
LOCAL GOVERNMENTS," AND THE REPORT CONCURRED IN THE VIEWS SET FORTH BY
THE SECRETARY IN HIS LETTER.  /14/ 

[[HC636'(ORIGINAL DOCUMENT PAGE 636)' 

THE SENATE VERSION OF THE 1972 ACT AS IT PASSED THE SENATE CONTAINED
AN EXPRESS PRE-EMPTION SECTION.  /15/  BUT THE SENATE VERSION NEVER WAS
PRESENTED TO THE HOUSE.  INSTEAD, THE SENATE PASSED, WITH AMENDMENTS,
THE HOUSE VERSION; /16/  THE HOUSE, ALSO WITH AMENDMENTS, THEN
CONCURRED IN THE SENATE AMENDMENTS.  /17/  THE ACT AS PASSED COMBINED
PROVISIONS OF BOTH THE HOUSE AND SENATE BILLS ON THE SUBJECT THAT EACH
HAD EARLIER APPROVED.  WHEN THE HOUSE, CONGRESSMAN STAGGERS, CHAIRMAN
OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, IN URGING
THE HOUSE TO ACCEPT THE AMENDED VERSION, SAID: 

"I CANNOT SAY WHAT INDUSTRY'S INTENTION MAY BE, BUT I CAN SAY TO THE
GENTLEMAN WHAT MY INTENTION IS IN TRYING TO GET THIS BILL PASSED.  WE
HAVE EVIDENCE THAT ACROSS AMERICA SOME CITIES AND STATES ARE TRYING TO
PASS NOISE REGULATIONS. 

[[HC637'(ORIGINAL DOCUMENT PAGE 637)'

  CERTAINLY WE DO NOT WANT THAT TO HAPPEN.  IT WOULD HARASS
INDUSTRY AND PROGRESS IN

  AMERICA.  THAT IS THE REASON WHY I WANT TO GET THIS BILL PASSED
DURING THIS SESSION." 

WHEN THE HOUSE APPROVED THE BLENDED PROVISIONS OF THE BILL, SENATOR
TUNNEY MOVED THAT THE SENATE CONCUR.  HE MADE CLEAR /19/  THAT THE
REGULATIONS TO BE CONSIDERED BY EPA FOR RECOMMENDATION TO FAA WOULD
INCLUDE: 

"PROPOSED MEANS OF REDUCING NOISE IN AIRPORT ENVIRONMENTS THROUGH
THE APPLICATION OF EMISSION CONTROLS ON AIRCRAFT, THE REGULATION OF
FLIGHT PATTERNS AND AIRCRAFT AND AIRPORT OPERATIONS, AND MODIFICATIONS
IN THE NUMBER, FREQUENCY, OR SCHEDULING OF FLIGHTS (AS WELL AS) . . .
THE IMPOSITION OF CURFEWS ON NOISY AIRPORTS, THE IMPOSITION OF FLIGHT
PATH ALTERATIONS IN AREAS WHERE NOISE WAS A PROBLEM, THE IMPOSITION OF
NOISE EMISSION STANDARDS ON NEW AND EXISTING AIRCRAFT--WITH THE
EXPECTATION OF A RETROFIT SCHEDULE TO ABATE NOISE EMISSIONS FROM
EXISTING AIRCRAFT--THE IMPOSITION OF CONTROLS TO INCREASE THE LOAD
FACTOR ON COMMERCIAL FLIGHTS, OR OTHER REDUCTIONS IN THE JOINT USE OF
AIRPORTS, AND SUCH OTHER PROCEDURES AS MAY BE DETERMINED USEFUL AND
NECESSARY TO PROTECT PUBLIC HEALTH AND WELFARE."  (EMPHASIS ADDED.) 

THE STATEMENTS BY CONGRESSMAN STAGGERS AND SENATOR TUNNEY ARE
WEIGHTY ONES.  FOR CONGRESSMAN STAGGERS WAS CHAIRMAN OF THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE WHICH SUBMITTED THE NOISE
CONTROL ACT AND REPORT; AND SENATOR TUNNEY WAS A MEMBER OF THE SENATE
COMMITTEE ON PUBLIC WORKS, WHICH SUBMITTED THE ACT AND REPORT. 

WHEN THE PRESIDENT SIGNED THE BILL HE STATED THAT "MANY OF THE MOST
SIGNIFICANT SOURCES OF NOISE MOVE IN INTERSTATE COMMERCE AND CAN BE
EFFECTIVELY REGULATED ONLY AT THE FEDERAL LEVEL."  /20/ 

[[HC638'(ORIGINAL DOCUMENT PAGE 638)' 

OUR PRIOR CASES ON PRE-EMPTION ARE NOT PRECISE GUIDELINES IN THE
PRESENT CONTROVERSY, FOR EACH CASE TURNS ON THE PECULIARITIES AND
SPECIAL FEATURES OF THE FEDERAL REGULATORY SCHEME IN QUESTION.  CF.
HINES V. DAVIDOWITZ, 312 U.S. 52; HURON PORTLAND CEMENT CO. V. DETROIT,
362 U.S. 440.  CONTROL OF NOISE IS OF COURSE DEEP SEATED IN THE POLICE
POWER OF THE STATES.  YET THE PERVASIVE CONTROL VESTED EPA AND IN FAA
UNDER THE 1972 ACT SEEMS TO US TO LEAVE NO ROOM FOR LOCAL CURFEWS OR
OTHER LOCAL CONTROLS.  WHAT THE ULTIMATE REMEDY MAY BE FOR AIRCRAFT
NOISE WHICH PLAGUES MANY COMMUNITIES AND TENS OF THOUSANDS OF PEOPLE IS
NOT KNOWN.  THE PROCEDURES UNDER THE 1972 ACT ARE UNDER WAY.  /21/  IN
ADDITION, THE ADMINISTRATOR HAS IMPOSED A VARIETY OF REGULATIONS
RELATING TO TAKEOFF AND LANDING PROCEDURES AND RUNWAY PREFERENCES.  THE
FEDERAL AVIATION ACT REQUIRES A DELICATE BALANCE BETWEEN SAFETY AND
EFFICIENCY, 49 U.S.C. ^ 1348 (A), AND THE PROTECTION OF PERSONS ON THE
GROUND. 

[[HC639'(ORIGINAL DOCUMENT PAGE 639)'  49 U.S.C. ^ 1348 (C).  ANY
REGULATIONS ADOPTED BY THE ADMINISTRATOR TO CONTROL NOISE POLLUTION
MUST BE CONSISTENT WITH THE "HIGHEST DEGREE OF SAFETY."  49 U.S.C. ^
1431 (D) (3).  THE INTERDEPENDENCE OF THESE FACTORS REQUIRES A UNIFORM
AND EXCLUSIVE SYSTEM OF FEDERAL REGULATION IF THE CONGRESSIONAL
OBJECTIVES UNDERLYING THE FEDERAL AVIATION ACT ARE TO BE FULFILLED. 

IF WE WERE TO UPHOLD THE BURBANK ORDINANCE AND A SIGNIFICANT NUMBER
OF MUNICIPALITIES FOLLOWED SUIT, IT IS OBVIOUS THAT FACTIONALIZED
CONTROL OF THE TIMING OF TAKEOFFS AND LANDINGS WOULD SEVERELY LIMIT THE
FLEXIBILITY OF THE FAA IN CONTROLLING AIR TRAFFIC FLOW.  /22/  THE
DIFFICULTIES OF SCHEDULING FLIGHTS TO AVOID CONGESTION AND THE
CONCOMITANT DECREASE IN SAFETY WOULD BE COMPOUNDED.  IN 1960 THE FAA
REJECTED A PROPOSED RESTRICTION ON JET OPERATIONS AT THE LOS ANGELES
AIRPORT BETWEEN 10 P.M. AND 7 A.M. BECAUSE SUCH RESTRICTIONS COULD
"CREATE CRITICALLY SERIOUS PROBLEMS TO ALL AIR TRANSPORTATION
PATTERNS."  25 FED. REG. 1764 - 1765.  THE COMPLETE FAA STATEMENT
SAID: 

     "THE PROPOSED RESTRICTION ON THE USE OF THE AIRPORT BY JET

  AIRCRAFT BETWEEN THE HOURS OF 10 P.M. AND 7 A.M. UNDER CERTAIN

  SURFACE WIND CONDITIONS HAS ALSO BEEN REEVALUATED AND THIS

  PROVISION HAS BEEN OMITTED FROM THE RULE. 

[[HC640'(ORIGINAL DOCUMENT PAGE 640)'

THE PRACTICE OF PROHIBITING THE USE OF VARIOUS AIRPORTS DURING
CERTAIN SPECIFIC HOURS COULD

  CREATE CRITICALLY SERIOUS PROBLEMS TO ALL AIR TRANSPORTATION
PATTERNS.  THE NETWORK OF

  AIRPORTS THROUGHOUT THE UNITED STATES AND THE CONSTANT
AVAILABILITY OF THESE AIRPORTS ARE

  ESSENTIAL TO THE MAINTENANCE OF A SOUND AIR TRANSPORTATION AND
THE INCREASINGLY SIGNIFICANT

  ROLE OF COMMERCIAL AVIATION IN THE NATION'S ECONOMY ARE
ACCOMPLISHMENTS WHICH CANNOT BE

  INHIBITED IF THE BEST INTEREST OF PUBLIC IS TO BE SERVED.  IT WAS
CONCLUDED THEREFORE THAT THE

  EXTENT OF RELIEF FROM THE NOISE PROBLEM WHICH THIS PROVISION
MIGHT HAVE ACHIEVED WOULD NOT

  HAVE COMPENSATED THE DEGREE OF RESTRICTION IT WOULD HAVE IMPOSED
ON DOMESTIC AND FOREIGN AIR

  COMMERCE." 

THIS DECISION, ANNOUNCED IN 1960, REMAINS PECULIARLY WITHIN THE
COMPETENCE OF THE FAA, SUPPLEMENTED NOW BY THE INPUT OF THE EPA.  WE
ARE NOT AT LIBERTY TO DIFFUSE THE POWER GIVEN BY CONGRESS TO FAA AND
EPA BY LETTING THE STATES OR MUNICIPALITIES IN ON THE PLANNING.  IF
THAT CHANGE IS TO MADE, CONGRESS ALONE MUST DO IT.

     AFFIRMED. 

/1/  BURBANK MUNICIPAL CODE ^ 20 - 32.1.  THE ORDINANCE PROVIDES AN
EXCEPTION FOR "EMERGENCY" FLIGHTS APPROVED BY THE CITY POLICE
DEPARTMENT. 

/2/  THE COURT OF APPEALS HELD THAT THE BURBANK ORDINANCE CONFLICTED
WITH THE RUNWAY PREFERENCE ORDER, BUR 7100.5B, ISSUED BY THE FAA CHIEF
OF THE AIRPORT TRAFFIC CONTROL TOWER AT THE HOLLYWOOD BURBANK AIRPORT. 
THE ORDER STATED THAT "(PROCEDURES ESTABLISHED FOR THE HOLLYWOOD
BURBANK AIRPORT ARE DESIGNED TO REDUCE COMMUNITY EXPOSURE TO NOISE TO
THE LOWEST PRACTICABLE MINIMUM.  . . ."  THE COURT OF APPEALS CONCLUDED
THAT THE ORDINANCE "INTERFERES WITH THE BALANCE SET BY THE FAA AMONG
THE INTERESTS WITH WHICH IT IS EMPOWERED TO DEAL, AND FRUSTRATES THE
FULL ACCOMPLISHMENT OF THE GOALS OF CONGRESS."  457 F.2D 667, 676.  IN
VIEW OF OUR DISPOSITION OF THIS APPEAL UNDER THE DOCTRINE OF PRE
EMPTION, WE NEED NOT REACH THIS QUESTION. 

/3/  SECTION 1348 PROVIDES IN RELEVANT PART AS FOLLOWS: 

"(A) THE ADMINISTRATOR IS AUTHORIZED AND DIRECTED TO DEVELOP PLANS
FOR AND FORMULATE POLICY WITH RESPECT TO THE USE OF THE NAVIGABLE
AIRSPACE; AND ASSIGN BY RULE, REGULATION, OR ORDER THE USE OF THE
NAVIGABLE AIRSPACE UNDER SUCH TERMS, CONDITIONS, AND LIMITATIONS AS HE
MAY DEEM NECESSARY IN ORDER TO INSURE THE SAFETY OF AIRCRAFT AND THE
EFFICIENT UTILIZATION OF SUCH AIRSPACE.  . . .

        *          *       *          * 

"(C) THE ADMINISTRATOR IS FURTHER AUTHORIZED AND DIRECTED TO
PRESCRIBE AIR TRAFFIC RULES AND REGULATIONS GOVERNING THE FLIGHT OF
AIRCRAFT, FOR THE NAVIGATION, PROTECTION, AND IDENTIFICATION OF
AIRCRAFT, FOR THE PROTECTION OF PERSONS AND PROPERTY ON THE GROUND, AND
FOR THE EFFICIENT UTILIZATION OF THE NAVIGABLE AIRSPACE, INCLUDING
RULES AS TO SAFE ALTITUDES OF FLIGHT AND RULES FOR THE PREVENTION OF
COLLISION BETWEEN AIRCRAFT, BETWEEN AIRCRAFT AND LAND OR WATER
VEHICLES, AND BETWEEN AIRCRAFT AND AIRBORNE OBJECTS." 

/4/  SECTION 7 (A) PROVIDES: 

"THE ADMINISTRATOR, AFTER CONSULTATION WITH APPROPRIATE FEDERAL,
STATE, AND LOCAL AGENCIES AND INTERESTED PERSONS, SHALL CONDUCT A STUDY
OF THE (1) ADEQUACY OF FEDERAL AVIATION ADMINISTRATION FLIGHT AND
OPERATIONAL NOISE CONTROLS; (2) ADEQUACY OF NOISE EMISSION STANDARDS ON
NEW AND EXISTING AIRCRAFT, TOGETHER WITH RECOMMENDATIONS ON THE
RETROFITTING AND PHASEOUT OF EXISTING AIRCRAFT; (3) IMPLICATIONS OF
IDENTIFYING AND ACHIEVING LEVELS OF CUMULATIVE NOISE EXPOSURE AROUND
AIRPORTS; AND (4) ADDITIONAL MEASURES AVAILABLE TO AIRPORT OPERATORS
AND LOCAL GOVERNMENTS TO CONTROL AIRCRAFT NOISE.  HE SHALL REPORT ON
SUCH STUDY TO THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE OF THE
HOUSE OF REPRESENTATIVES AND THE COMMITTEES ON COMMERCE AND PUBLIC
WORKS OF THE SENATE WITHIN NINE MONTHS AFTER THE DATE OF THE ENACTMENT
OF THIS ACT." 

/5/  SECTION 611 OF THE FEDERAL AVIATION ACT, 49 U.S.C. ^ 1431, WAS
ADDED IN JULY 1968.  ACT OF JULY 21, 1968, PUB. L. 90 - 411, 82 STAT.
395.  PRIOR TO AMENDMENT BY THE 1972 ACT, IT PROVIDED IN PART THAT THE
ADMINISTRATOR, "(IN ORDER TO AFFORD PRESENT AND FUTURE RELIEF AND
PROTECTION TO THE PUBLIC FROM UNNECESSARY AIRCRAFT NOISE AND SONIC
BOOM, . . . SHALL PRESCRIBE AND AMEND SUCH RULES AND REGULATIONS AS HE
MAY FIND NECESSARY TO PROVIDE FOR THE CONTROL AND ABATEMENT OF AIRCRAFT
NOISE AND SONIC BOOM."  49 U.S.C. 1431(A) 

/6/  SECTION 6UUB)(1), AS AMENDED, READS: 

"IN ORDER TO AFFORD PRESENT AND FUTURE RELIEF AND PROTECTION TO THE
PUBLIC HEALTH AND WELFARE FROM AIRCRAFT NOISE AND SONIC BOOM, THE FAA,
AFTER CONSULTATION WITH THE SECRETARY OF TRANSPORTATION AND WITH EPA,
SHALL PRESCRIBE AND AMEND STANDARDS FOR THE MEASUREMENT OF AIRCRAFT
NOISE AND SONIC BOOM AND SHALL PRESCIIBE AND AMEND SUCH REGULATIONS AS
THE FAA MAY FIND NECESSARY TO PROVIDE FOR THE CONTROL AND ABATEMENT OF
AIRCRAFT NOISE AND SONIC BOOM, INCLUDING THE APPLICATION OF SUCH
STANDARDS AND REGULATIONS IN THE ISSUANCE, AMENDMENT, MODIFICATION,
SUSPENSION, OR REVOCATION OF ANY CERTIFICATE AUTHORIZED BY THIS TITLE. 
NO EXEMPTION WITH RESPECT TO ANY STANDARD OR REGULATION UNDER THIS
SHALL HAVE CONSULTED WITH EPA BEFORE SUCH EXEMPTION IS GRANTED, EXCEPT
THAT IF THE FAA DETERMINES THAT SAFETY IN AIR COMMERCE OR AIR
TRANSPORTATION REQUIRES THAT SUCH AN EXEMPTION BE GRANTED BEFORE EPA
CAN BE CONSULTED, THE FAA SHALL CONSULT WITH EPA AS SOON AS PRACTICABLE
AFTER THE EXEMPTION IS GRANTED." 

/7/  SUBSECTION (B) (2) PROVIDES: 

"THE FAA SHALL NOT ISSUE AN ORIGINAL TYPE CERTIFICATE UNDER SECTION
603 (A) OF THIS ACT FOR ANY AIRCRAFT FOR WHICH SUBSTANTIAL NOISE
ABATEMENT CAN BE ACHIEVED BY PRESCRIBING STANDARDS AND REGULATIONS IN
ACCORDANCE WITH THIS SECTION, UNLESS HE SHALL HAVE PRESCRIBED STANDARDS
AND REGULATIONS IN ACCORDANCE WITH THIS SECTION WHICH APPLY TO SUCH
AIRCRAFT AND WHICH PROTECT THE PUBLIC FROM AIRCRAFT NOISE AND SONIC
BOOM, CONSISTENT WITH THE CONSIDERATIONS LISTED IN SUBSECTION (D)." 

/8/  SECTION 102 READS IN PART AS FOLLOWS: 

"THE CONGRESS AUTHORIZES AND DIRECTS THAT, TO THE FULLEST EXTENT
POSSIBLE:  (1) THE POLICIES, REGULATIONS, AND PUBLIC LAWS OF THE UNITED
STATES SHALL BE INTERPRETED AND ADMINISTERED IN ACCORDANCE WITH THE
POLICIES SET FORTH IN THIS CHAPTER, AND (2) ALL AGENCIES OF THE FEDERAL
GOVERNMENT SHALL-- . .. (C) INCLUDE IN EVERY RECOMMENDATION OR REPORT
ON PROPOSALS FOR LEGISLATION AND OTHER MAJOR FEDERAL ACTIONS
SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT, A
DETAILED STATEMENT BY THE RESPONSIBLE OFFICIAL ON-- (I) THE
ENVIRONMENTAL IMPACT OF THE PROPOSED ACTION, (II) ANY ADVERSE
ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED SHOULD THE PROPOSAL BE
IMPLEMENTED, (III) ALTERNATIVES TO THE PROPOSED ACTION, (IV) THE
RELATIONSHIP BETWEEN LOCAL SHORT-TERM USES OF MAN'S ENVIRONMENT AND THE
MAINTENANCE AND ENHANCEMENT OF LONG-TERM PRODUCTIVITY, AND (V) ANY
IRREVERSIBLE AND IRRETRIEVABLE COMMITMENTS OF RESOURCES WHICH WOULD BE
INVOLVED IN THE PROPOSED ACTION SHOULD IT BE IMPLEMENTED.  PRIOR TO
MAKING ANY DETAILED STATEMENT, THE RESPONSIBLE FEDERAL OFFICIAL SHALL
CONSULT WITH AND OBTAIN THE COMMENTS OF ANY FEDERAL AGENCY WHICH HAS
JUDISDICTION BY LAW OR SPECIAL EXPERTISE WITH RESPECT TO ANY
ENVIRONMENTAL IMPACT INVOLVED.  COPIES OF SUCH STATEMENT AND THE
COMMENTS AND VIEWS OF THE APPROPRIATE FEDERAL, STATE, AND LOCAL
AGENCIES, WHICH ARE AUTHORIZED TO DEVELOP AND ENFORCE ENVIRONMENTAL
STANDARDS, SHALL BE MADE AVAILABLE TO THE PRESIDENT, THE COUNCIL ON
ENVIRONMENTAL QUALITY AND TO THE PUBLIC AS PROVIDED BY SECTION 552 OF
TITLE 5, AND SHALL ACCOMPANY THE PROPOSAL THROUGH THE EXISTING AGENCY
REVIEW PROCESSES." 

PROVIDES THAT IF FAA FILES NO STATEMENT UNDER ^ 102 (2) (C) OF THE
NATIONAL ENVIRONMENTAL POLICY ACT "THEN EPA MAY REQUEST THE FAA TO FILE
A SUPPLEMENTAL REPORT, WHICH SHALL BE PUBLISHED IN THE FEDERAL REGISTER
WITHIN SUCH A PERIOD AS EPA MAY SPECIFY (BUT SUCH TIME SPECIFIED SHALL
NOT BE LESS THAN NINETY DAYS FROM THE DATE THE REQUEST WAS MADE), AND
WHICH SHALL CONTAIN A COMPARISON OF (A) THE ENVIRONMENTAL EFFECTS
(INCLUDING THOSE WHICH CANNOT BE AVOIDED) OF THE ACTION ACTUALLY TAKEN
BY THE FAA IN RESPONSE TO EPA'S PROPOSED REGULATIONS, AND (B) EPA'S
PROPOSED REGULATIONS."     /9/  H.R. REP. NO. 92 - 842, P. 10. 

/10/  S.REP.  NO. 92 - 1160, PP. 10 - 11.     /11/  SEE N.5, SUPRA. 

/12/  HEARING BEFORE THE AVIATION SUBCOMMITTEE OF THE SENATE
COMMITTEE ON COMMERCE ON S.707 AND H.R. 3400, AIRCRAFT NOISE ABATEMENT
REGULATION, 90TH CONG., 2D SESS., 29. 

/13/  S.REP.  NO. 1353, 90TH CONG., 2D SESS., 6. 

/14/  THE LETTER FROM THE SECRETARY OF TRANSPORTATION ALSO EXPRESSED
THE VIEW THAT "THE PROPOSED LEGISLATION WILL NOT AFFECT THE RIGHTS OF A
STATE OR LOCAL PUBLIC AGENCY, AS THE PROPRIETOR OF AN AIRPORT, FROM
ISSUING REGULATIONS OR ESTABLISHING REQUIREMENTS AS TO THE PERMISSIBLE
LEVEL OF NOISE WHICH CAN BE CREATED BY AIRCRAFT USING THE MISSIBLE
LEVEL OF NOISE WHICH CAN BE CREATED BY AIRCRAFT USING THE AIRPORT. 
AIRPORT OWNERS ACTING AS A PROPRIETORS CAN PRESENTLY DENY THE USE OF
THEIR AIRPORTS TO AIRCRAFT ON THE BASIS OF NOISE CONSIDERATIONS SO LONG
AS SUCH EXCLUSION IS NONDISCRIMINATORY."  THIS PORTION AS WELL WAS
QUOTED WITH APPROVAL IN THE SENATE REPORT.  IBID. 

APPELLANTS AND THE SOLICITOR GENERAL SUBMIT THAT THIS INDICATES THAT
A MUNICIPALITY WITH JURISDICTION OVER AN AIRPORT HAS THE POWER TO
IMPOSE A CURFEW ON THE AIRPORT, NOTWITHSTANDING FEDERAL RESPONSIBILITY
IN THE AREA.  BUT, WE ARE CONCERNED HERE NOT WITH AN ORDNANCE IMPOSED
BY THE CITY OF BURBANK AS "PROPRIETOR" OF THE AIRPORT, BUT WITH THE
EXERCISE OF POLICE POWER.  WHILE THE HOLLYWOOD-BURBANK AIRPORT MAY BE
THE ONLY MAJOR AIRPORT WHICH IS PRIVATELY OWNED, MANY AIRPORTS ARE
OWNED BY ONE MUNICIPALITY YET PHYSICALLY LOCATED IN ANOTHER.  FOR
EXAMPLE, THE PRINCIPAL AIRPORT SERVING CINCINNATI IS LOCATED IN
KENTUCKY.  THUS; AUTHORITY THAT A MUNICIPALITY MAY HAVE AS A LANDLORD
IS NOT NECESSARILY CONGRUENT WITH ITS POLICE POWER.  WE DO NOT CONSIDER
HERE WHAT LIMITS, IF ANY APPLY TO A MUNICIPALITY AS A PROPRIETOR. 

/15/  118 CONG. REC. S 17989 (OCT. 13, 1972). 

/16/  ID., AT S 18007 (OCT. 13, 1972). 

/17/  19 CONG. REC. H 10287 (OCT. 18, 1972). 

/18/  ID., AT H 10294 (OCT. 18, 1972). 

/19/  ID., AT S 18644 (OCT. 18, 1972). 

/20/  8 WEEKLY COMP. PRES.  DOCS.  1582, 1583 (OCT. 28, 1972). 

/21/  THE ADMINISTRATOR HAS ADOPTED REGULATIONS PRESCRIBING NOISE
STANDARDS WHICH MUST BE MET AS A CONDITION TO TYPE CERTIFICATION FOR
ALL NEW SUBSONIC TURBOJET-POWERED AIRCRAFT.  14 CFR PT. 36.  ON JANUARY
30, 1973, THE FEDERAL AVIATION ADMINISTRATION GAVE ADVANCE NOTICE OF
PROPOSED RULEMAKING FOR THE CONTROL OF FLEET NOISE LEVELS (FNL) OF
AIRPLANES OPERATING IN INTERSTATE COMMERCE.  38 FED. REG. 2769.  (THE
REGULATIONS WOULD NOT PERTAIN TO CARRIERS ALSO OPERATING IN FOREIGN
COMMERCE.)  THE PROPOSED RULES ARE DESIGNED TO LIMIT FNL PRIOR TO JULY
1, 1978, WHEN THE COVERED AIRCRAFT BECOME SUBJECT TO THE REQUIREMENTS
OF 14 CFR PT. 36. 

THE FNL WOULD BE DETERMINED AS A FUNCTION OF THE TAKEOFF AND
APPROACH NOISE LEVELS OF EACH AIRPLANE IN THE FLEET AND THE NUMBER OF
TAKEOFFS AND LANDINGS OF THE FLEET.  UNTIL JULY 1, 1976, THE CUMULATIVE
NOISE LEVEL OF ANY FLEET SUBJECT TO REGULATION COULD NOT EXCEED THE FNL
DURING THE PREVIOUS 90-DAY BASE PERIOD.  IN 1976 EACH FLEET WOULD BE
REQUIRED TO REDUCE ITS FNL BY 50% OF THE DIFFERENCE BETWEEN THE
ORIGINAL BASE-PERIOD LEVEL AND THE LEVEL ULTIMATELY REQUIRED BY 14 CFR
PT. 36. 

/22/  IN ORDER TO INSURE EFFICIENT AND SAFE USE OF THE NAVIGABLE
AIRSPACE, THE FAA USES CENTRALIZED "FLOW CONTROL," REGULATING THE
NUMBER OF AIRCRAFT THAT WILL BE ACCEPTED IN A GIVEN AREA AND
RESTRICTING ALTITUDES AND ROUTES THAT MAY BE FLOWN.  FLOW CONTROL HAS
RESULTED IN THE LOS ANGELES AIR ROUTE TRAFFIC CONTROL CENTER HOLDING
AIRCRAFT ON THE GROUND AT THE HOLLYWOOD-BURBANK AIRPORT. 

PRIOR TO APRIL 1970, 21 REGIONAL AIR ROUTE TRAFFIC CONTROL CENTERS
EXERCISED INDEPENDENT CONTROL OVER TRAFFIC FLOW IN THEIR AREAS.  IN
APRIL 1970 THE FAA ESTABLISHED A CENTRAL FLOW FACILITY TO COORDINATE
FLOW CONTROL THROUGHOUT THE AIR TRAFFIC CONTROL SYSTEM.  THIS CHANGE
WAS NECESSITATED BECAUSE NO REGIONAL CENTER "HAD ENOUGH INFORMATION TO
MAKE A JUDGMENT BASED ON THE OVERALL CONDITION OF THE ATC SYSTEM.  . .
."  FOURTH ANNUAL REPORT OF THE SECRETARY OF TRANSPORTATION FOR FISCAL
YEAR 1970. 

[[DOP 

MR. JUSTICE REHNQUIST, WITH WHOM MR. JUSTICE STEWART, MR. JUSTICE
WHITE, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

THE COURT CONCLUDES THAT CONGRESSIONAL LEGISLATION DEALING WITH
AIRCRAFT NOISE HAS SO "PERVADED" THAT FIELD THAT CONGRESS HAS IMPLIEDLY
PRE-EMPTED IT, AND THEREFORE THE ORDINANCE OF THE CITY OF BURBANK HERE
CHALLENGED IS INVALID UNDER THE SUPREMACY CLAUSE OF THE CONSTITUTION. 

[[HC641'(ORIGINAL DOCUMENT PAGE 641)' 

THE COURT SAYS THAT THE 1972 "ACT REAFFIRMS AND REINFORCES THE
CONCLUSION THAT FAA, NOW IN CONJUNCTION WITH EPA, HAS FULL CONTROL OVER
AIRCRAFT NOISE, PRE-EMPTING STATE AND LOCAL CONTROL."  ANTE, 633.  YET
THE HOUSE AND SENATE COMMITTEE REPORTS EXPLICITLY STATE THAT THE 1972
ACT TO WHICH THE COURT REFERS WAS NOT INTENDED TO ALTER THE BALANCE
BETWEEN STATE AND FEDERAL REGULATION WHICH HAD BEEN STRUCK BY EARLIER
CONGRESSIONAL LEGISLATION IN THIS AREA.  THE HOUSE REPORT, H.R. REP.
NO. 92 - 842, IN DISCUSSING THE GENERAL PRE-EMPTIVE EFFECT OF THE
ENTIRE BILL, STATED: 

"THE AUTHORITY OF STATE AND LOCAL GOVERNMENT TO REGULATE USE,
OPERATION, OR MOVEMENT OF PRODUCTS IS NOT AFFECTED AT ALL BY THE BILL. 
(THE PREEMPTION PROVISION DISCUSSED IN THIS PARAGRAPH DOES NOT APPLY TO
AIRCRAFT.  SEE DISCUSSION OF AIRCRAFT NOISE BELOW.)"  ID., AT 8 

THE REPORT WENT ON TO STATE SPECIFICALLY: 

     "NO PROVISION OF THE BILL IS INTENDED TO ALTER IN ANY WAY THE

RELATIONSHIP BETWEEN THE AUTHORITY OF THE FEDERAL GOVERNMENT AND

  THAT OF STATE AND LOCAL GOVERNMENTS THAT EXISTED WITH RESPECT TO

  MATTERS COVERED BY SECTION 611 OF THE FEDERAL AVIATION ACT OF

  1958 PRIOR TO THE ENACTMENT OF THE BILL."  ID., AT 10. 

THE REPORT OF THE SENATE PUBLIC WORKS COMMITTEE, S.REP.  NO. 92 -
1160, EXPRESSED THE IDENTICAL INTENT WITH RESPECT TO PRE-EMPTION: 

     "STATES AND LOCAL GOVERNMENTS ARE PREEMPTED FROM ESTABLISHING

  OR ENFORCING NOISE EMISSION STANDARDS FOR AIRCRAFT (SEE AMERICAN

  AIRLINES V. HEMPSTEAD, 272 F.SUPP.  226 (EDNY 1967)), UNLESS SUCH

STANDARDS ARE IDENTICAL TO STANDARDS PRESCRIBED UNDER THIS BILL. 

  THIS DOES NOT ADDRESS RESPONSIBILITIES OR POWERS OF AIRPORT

  OPERATORS, AND NO PROVISION OF THE BILL IS INTENDED TO ALTER IN

  ANY WAY THE RELATIONSHIP BETWEEN THE AUTHORITY OF THE FEDERAL

  GOVERNMENT AND THAT OF STATE AND LOCAL GOVERNMENTS THAT EXISTED

  WITH RESPECT TO MATTERS COVERED BY SECTION 611 OF THE FEDERAL

  AVIATION ACT OF 1958 PRIOR TO THE ENACTMENT OF THE BILL."  ID.,

  AT 10 - 11. 

[[HC642'(ORIGINAL DOCUMENT PAGE 642)' 

IN THE LIGHT OF THESE SPECIFIC CONGRESSIONAL DISCLAIMERS OF PRE
EMPTION IN THE 1972 ACT, REFERENCE MUST NECESSARILY BE HAD TO EARLIER
CONGRESSIONAL LEGISLATION ON THAT SUBJECT.  /1/  IT WAS ON THE BASIS OF
THESE EARLIER ENACTMENTS THAT THE COURT OF APPEALS CONCLUDED THAT
CONGRESS HAD PRE-EMPTED THE FIELD FROM STATE OR LOCAL REGULATION OF THE
TYPE THAT THE CITY OF BURBANK ENACTED. 

THE BURBANK ORDINANCE PROHIBITED JET TAKEOFFS FROM THE HOLLYWOOD
BURBANK AIRPORT DURING THE LATE EVENING AND EARLY MORNING HOURS.  ITS
PURPOSE WAS TO AFFORD LOCAL RESIDENTS AT LEAST PARTIAL RELIEF, DURING
NORMAL SLEEPING HOURS, FROM THE NOISE ASSOCIATED WITH JET AIRPLANES. 
THE ORDINANCE IN NO WAY DEALT WITH FLIGHTS OVER THE CITY, CF. AMERICAN
AIRLINES V. HEMPSTEAD, 272 F.SUPP.  226 (EDNY 1967), AFF'D 398 F.2D 369
(CA2 1968), CERT., DENIED, 393 U.S. 1017 (1969), NOR DID IT
CATEGORICALLY PROHIBIT ALL JET TAKEOFFS DURING THOSE HOURS. 

APPELLEES DO NOT CONTEND THAT THE NOISE PRODUCED BY JET ENGINES
COULD NOT REASONABLY BE DEEMED TO AFFECT ADVERSELY THE HEALTH AND
WELFARE OF PERSONS CONSTANTLY EXPOSED TO IT; CONTROL OF NOISE,
SUFFICIENTLY LOUD TO BE CLASSIFIED AS A PUBLIC NUISANCE AT COMMON LAW,
WOULD BE A TYPE OF REGULATION WELL WITHIN THE TRADITIONAL SCOPE OF THE
POLICE POWER POSSESSED BY STATES AND LOCAL GOVERNING BODIES. 

[[HC643'(ORIGINAL DOCUMENT PAGE 643)'  BECAUSE NOISE REGULATION HAS
TRADITIONALLY BEEN AN AREA OF LOCAL, NOT NATIONAL, CONCERN, IN
DETERMINING WHETHER CONGRESSIONAL LEGISLATION HAS, BY IMPLICATION,
FORECLOSED REMEDIAL LOCAL ENACTMENTS "WE START WITH THE ASSUMPTION THAT
THE HISTORIC POLICE POWERS OF THE STATES WERE NOT TO BE SUPERSEDED BY
THE FEDERAL ACT UNLESS THAT WAS THE CLEAR AND MANIFEST PURPOSE OF
CONGRESS."  RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218, 230 (1947). 
THIS ASSUMPTION DERIVES FROM OUR BASIC CONSTITUTIONAL DIVISION OF
LEGISLATIVE COMPETENCE BETWEEN THE STATES AND CONGRESS; FROM "DUE
REGARD FOR THE PRESUPPOSITIONS OF OUR EMBRACING FEDERAL SYSTEM,
INCLUDING THE PRINCIPLE OF DIFFUSION OF POWER NOT AS A MATTER OF
DOCTRINAIRE LOCALISM BUT AS A PROMOTER OF DEMOCRACY.  . . ."  SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, 243 (1959). 

UNLESS THE REQUISITE PRE-EMPTIVE INTENT IS ABUNDANTLY CLEAR, WE
SHOULD HESITATE TO INVALIDATE STATE AND LOCAL LEGISLATION FOR THE ADDED
REASON THAT "THE STATE IS POWERLESS TO REMOVE THE ILL EFFECTS OF OUR
DECISION, WHILE THE NATIONAL GOVERNMENT, WHICH HAS THE ULTIMATE POWER,
REMAINS FREE TO REMOVE THE BURDEN."  PENN DAIRIES, INC. V. MILK CONTROL
COMM'N, 318 U.S. 261, 275 (1943). 

SINCE CONGRESS' INTENT IN ENACTING THE 1972 ACT WAS CLEARLY TO RETAIN
THE STATUS QUO BETWEEN THE FEDERAL REGULATION AND LOCAL REGULATION, A
HOLDING OF IMPLIED PRE-EMPTION OF THE FIELD DEPENDS UPON WHETHER TWO
EARLIER CONGRESSIONAL ENACTMENTS, THE FEDERAL AVIATION ACT OF 1958, 72
STAT. 731, 49 U.S.C. ^ 1301 ET SEQ., AND THE 1968 NOISE ABATEMENT
AMENDMENT TO THAT ACT, 49 U.S.C. ^ 1431, MANIFESTED THE CLEAR INTENT TO
PRECLUDE LOCAL REGULATIONS, THAT OUR PRIOR DECISIONS REQUIRE. 

[[HC644'(ORIGINAL DOCUMENT PAGE 644)' 

THE 1958 ACT WAS INTENDED TO CONSOLIDATE IN ONE AGENCY IN THE
EXECUTIVE BRANCH THE CONTROL OVER AVIATION THAT HAD PREVIOUSLY BEEN
DIFFUSED WITHIN THAT BRANCH.  THE PARAMOUNT SUBSTANTIVE CONCERNS OF
CONGRESS WERE TO REGULATE FEDERALLY ALL ASPECTS OF AIR SAFETY, SEE,
E.G., 49 U.S.C. ^ 1422 AND, ONCE AIRCRAFT WERE IN "FLIGHT," AIRSPACE
MANAGEMENT, SEE E.G., 49 U.S.C. ^ 1348 (A).  SEE S.REP.  NO. 1811, 85TH
CONG., 2D SESS., 5 - 6, 13 - 15.  WHILE THE ACT MIGHT BE BROAD ENOUGH
TO PERMIT THE ADMINISTRATOR TO PROMULGATE TAKEOFF AND LANDING RULES TO
AVOID EXCESSIVE NOISE AT CERTAIN HOURS OF THE DAY, SEE 49 U.S.C. ^ 1348
(C), CONGRESS WAS NOT CONCERNED WITH THE PROBLEM OF NOISE CREATED BY
AIRCRAFT AND DID NOT INTEND TO PRE-EMPT ITS REGULATION.  FURTHERMORE,
WHILE CONGRESS CLEARLY INTENDED TO PRE-EMPT THE STATES FROM REGULATING
AIRCRAFT IN FLIGHT, THE AUTHOR OF THE BILL, SENATOR MONRONEY,
SPECIFICALLY STATED THAT THE FAA WOULD NOT HAVE CONTROL "OVER THE
GROUND SPACE" OF AIRPORTS.  /2/ 

THE DEVELOPMENT AND INCREASING USE OF CIVILIAN JET AIRCRAFT RESULTED
IN CONGRESSIONAL CONCERN OVER THE NOISE ASSOCIATED WITH THOSE
AIRCRAFT.  HEARINGS WERE HELD OVER A PERIOD OF SEVERAL YEARS, RESULTING
IN A REPORT BUT NO LEGISLATION.  THE REPORT OF THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, H.R. REP. NO. 36, 88TH CONG., 1ST
SESS., SHOWS CLEARLY THAT THE 1958 ACT WAS THOUGHT BY AT LEAST SOME IN
CONGRESS NEITHER TO PRE-EMPT LOCAL LEGISLATIVE ACTION TO ALLEVIATE THE
GROWING NOISE PROBLEM, NOR TO PROHIBIT LOCAL CURFEWS: 

"UNTIL FEDERAL ACTION IS TAKEN, THE LOCAL GOVERNMENTAL AUTHORITIES
MUST BE DEEMED TO POSSESS THE POLICE POWER NECESSARY TO PROTECT THEIR
CITIZENS AND PROPERTY FROM THE UNREASONABLE INVASION OF AIRCRAFT
NOISE. 

[[HC645'(ORIGINAL DOCUMENT PAGE 645)'

  THE WISDOM OF EXERCISING SUCH POWER OR THE MANNER OF THE EXERCISE
IS A PROBLEM TO BE RESOLVED

  ON THE LOCAL GOVERNMENTAL LEVEL. 

        *          *          *          * 

"AIRPORTS IN THE UNITED STATES, AS A GENERAL RULE, ARE OPERATED BY A
LOCAL GOVERNMENTAL AUTHORITY, EITHER A MUNICIPALITY, A COUNTY, OR SOME
INDEPENDENT UNIT.  THESE AIRPORT OPERATORS ARE CLOSER, BOTH
GEOGRAPHICALLY AND POLITICALLY, TO THE PROBLEM OF THE CONFLICT OF
INTERESTS BETWEEN THOSE CITIZENS WHO HAVE BEEN ADVERSELY AFFECTED BY
THE AIRCRAFT NOISE AND THE NEEDS OF THE COMMUNITY FOR AIR COMMERCE. 
SOME AIRPORT OPERATORS HAVE EXERCISED THE PROPRIETARY RIGHT TO RESTRICT
IN A REASONABLE MANNER, THE USE OF ANY RUNWAY BY LIMITING EITHER THE
HOURS DURING WHICH IT MAY BE USED OR THE TYPES OF CIVIL TRANSPORT
AIRCRAFT THAT MAY USE IT."  H.R. REP. NO. 36, 88TH CONG., 1ST SESS.,
27. 

SEVERAL YEARS AFTER THE CONCLUSION OF THESE HEARINGS, CONGRESS
ENACTED THE 1968 NOISE ABATEMENT AMENDMENT, 82 STAT. 395, TO THE 1958
ACT, 49 U.S.C. ^ 1431, WHICH WAS THE FIRST CONGRESSIONAL LEGISLATION
DEALING WITH THE PROBLEM OF AIRCRAFT NOISE.  ON ITS FACE, /3/ THE
PRESENT ^ 611 NEITHER PRE-EMPTS THE GENERAL FIELD OF REGULATION OF
AIRCRAFT NOISE NOR DEALS SPECIFICALLY WITH THE MORE LIMITED QUESTION OF
CURFEWS. 

[[HC646'(ORIGINAL DOCUMENT PAGE 646)'  THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, AFTER RECITING THE SERIOUS PROPORTIONS
OF THE PROBLEM, OUTLINED THE TYPE OF FEDERAL REGULATION THAT THE ACT
SOUGHT TO IMPOSE: 

     "THE NOISE PROBLEM IS BASICALLY A CONFLICT BETWEEN TWO GROUPS

  OR INTERESTS.  ON THE ONE HAND, THERE IS A GROUP WHO PROVIDE

  VARIOUS AIR TRANSPORTATION SERVICES. 

[[HC647'(ORIGINAL DOCUMENT PAGE 647)'

  ON THE OTHER HAND THERE IS A GROUP WHO LIVE, WORK, AND GO TO
SCHOOLS AND CHURCHES IN

  COMMUNITIES NEAR AIRPORTS.  THE LATTER GROUP IS FREQUENTLY
BURDENED TO THE POINT WHERE THEY

  CAN NEITHER ENJOY NOR REASONABLY USE THEIR LAND BECAUSE OF NOISE
RESULTING FROM AIRCRAFT

  OPERATIONS.  MANY OF THEM DERIVE NO DIRECT BENEFIT FROM THE
AIRCRAFT OPERATIONS WHICH CREATE

  THE UNWANTED NOISE.  THEREFORE, IT IS EASY TO UNDERSTAND WHY THEY
COMPLAIN, AND COMPLAIN MOST

  VEHEMENTLY.  THE POSSIBLE SOLUTIONS TO THIS DEMANDING AND VEXING
PROBLEM WHICH APPEAR TO OFFER

  THE MOST PROMISE ARE (1) NEW OR MODIFIED ENGINE AND AIRFRAME
DESIGNS, (2) SPECIAL FLIGHT

  OPERATING TECHNIQUES AND PROCEDURES, AND (3) PLANNING FOR LAND
USE IN AREAS ADJACENT TO

  AIRPORTS SO THAT SUCH LAND USE WILL BE MOST COMPATIBLE WITH
AIRCRAFT OPERATIONS.  THIS

  LEGISLATION IS DIRECTED TOWARD THE PRIMARY PROBLEM; NAMELY,
REDUCTION OF NOISE AT ITS

  SOURCE."  H.R. REP. NO. 1463, 90TH CONG., 2D SESS., 4. 

FAR FROM INDICATING ANY TOTAL PRE-EMPTIVE INTENT, THE HOUSE
COMMITTEE OBSERVED: 

"RATHER, THE COMMITTEE EXPECTS MANUFACTURERS, AIR CARRIERS, ALL
OTHER SEGMENTS OF THE AVIATION COMMUNITY, AND STATE AND LOCAL CIVIC AND
GOVERNMENTAL ENTITIES TO CONTINUE AND INCREASE THEIR CONTRIBUTIONS
TOWARD THE COMMON GOAL OF QUIET."  IBID. 

THE SENATE COMMERCE COMMITTEE'S VIEW OF THE HOUSE BILL FOLLOWED A
SIMILAR VEIN: 

     "THIS INVESTMENT BY THE INDUSTRY IS REPRESENTATIVE OF ONE OF

  THE AVENUES OF APPROACH TO AIRCRAFT NOISE REDUCTION, THAT IS, THE

DEVELOPMENT OF AIRCRAFT WHICH GENERATE LESS NOISE.  ANOTHER

  APPROACH TO NOISE REDUCTION IS THROUGH THE ESTABLISHMENT OF

  SPECIAL FLIGHT OPERATING TECHNIQUES AND PROCEDURES. 

[[HC648'(ORIGINAL DOCUMENT PAGE 648)'

  THE THIRD PRINCIPAL CONTROL TECHNIQUE WHICH MERITS SERIOUS
CONSIDERATION IS THE PLANNING FOR

  LAND USE IN AREAS NEAR AIRPORTS SO AS TO MAKE SUCH USE COMPATIBLE
WITH AIRCRAFT

  OPERATIONS.  THIS IS A MATTER LARGELY WITHIN THE PROVINCE OF
STATE AND LOCAL

 GOVERNMENTS.  WHILE ALL OF THESE TECHNIQUES MUST BE THOROUGHLY
STUDIED AND EMPLOYED, THE FIRST

  ORDER OF BUSINESS IS TO STOP THE ESCALATION OF AIRCRAFT NOISE BY
IMPOSING STANDARDS WHICH

  REQUIRE THE FULL APPLICATION OF NOISE REDUCTION TECHNOLOGY. 

     "A COMPLETELY QUIET AIRPLANE WILL NOT BE DEVELOPED WITHIN THE

  FORESEEABLE FUTURE.  HOWEVER, WITH THE TECHNOLOGICAL AND

  REGULATORY MEANS NOW AT HAND, IT IS POSSIBLE TO REDUCE BOTH THE

  LEVEL AND THE IMPACT OF AIRCRAFT NOISE.  WITHIN THE LIMITS OF

  TECHNOLOGY AND ECONOMIC FEASIBILITY, IT IS THE VIEW OF THE

  COMMITTEE THAT THE FEDERAL GOVERNMENT MUST ASSURE THAT THE

  POTENTIAL REDUCTIONS ARE IN FACT REALIZED."  S. REP. NO. 1353,

  90TH CONG., 2D SESS., 2 - 3. 

WITH SPECIFIC EMPHASIS ON PRE-EMPTION, THE STATE COMMITTEE OBSERVED:

        "RELATION TO LOCAL GOVERNMENT INITIATIVES" 

     "THE BILL IS AN AMENDMENT TO A STATUTE DESCRIBING THE POWERS

  AND DUTIES OF THE FEDERAL GOVERNMENT WITH RESPECT TO AIR

  COMMERCE.  AS INDICATED EARLIER IN THIS REPORT, CERTAIN ACTIONS

  BY STATE AND LOCAL PUBLIC AGENCIES, SUCH AS ZONING TO ASSURE

  COMPATIBLE LAND USE, ARE A NECESSARY PART OF THE TOTAL ATTACK ON

AIRCRAFT NOISE.  IN THIS CONNECTION, THE QUESTION IS RAISED

  WHETHER THIS BILL ADDS OR SUBTRACTS ANYTHING FROM THE POWERS OF

  STATE OF LOCAL GOVERNMENTS.  IT IS NOT THE INTENT OF THE

  COMMITTEE IN RECOMMENDING THIS LEGISLATION TO EFFECT ANY CHANGE

  IN THE EXISTING APPORTIONMENT OF POWERS BETWEEN THE FEDERAL AND

  STATE AND LOCAL GOVERNMENTS. 

[[HC649'(ORIGINAL DOCUMENT PAGE 649)' 

     "IN THIS REGARD, WE CONCUR IN THE FOLLOWING VIEWS SET FORTH BY

  THE SECRETARY IN HIS LETTER TO THE COMMITTEE OF JUNE 22, 1968: 

   "'THE COURTS HAVE HELD THAT THE FEDERAL GOVERNMENT PRESENTLY

  PREEMPTS THE FIELD OF NOISE REGULATION INSOFAR AS IT INVOLVES

  CONTROLLING THE FLIGHT OF AIRCRAFT.  LOCAL NOISE CONTROL

  LEGISLATION LIMITING THE PERMISSIBLE NOISE LEVEL OF ALL

  OVERFLYING AIRCRAFT HAS RECENTLY BEEN STRUCK DOWN BECAUSE IT

  CONFLICTED WITH FEDERAL REGULATION OF AIR TRAFFIC.  AMERICAN

  AIRLINES V. TOWN OF HEMPSTEAD, 272 F. SUPP. 226 (U.S.D.C., E.D.,

  N.Y., 1966).  THE COURT SAID AT 231, 

"THE LEGISLATION OPERATES IN AN AREA COMMITTED TO FEDERAL CARE, AND
NOISE LIMITING RULES OPERATING AS DO THOSE OF THE ORDINANCE MUST COME
FROM A FEDERAL SOURCE."  H.R. 3400 WOULD MERELY EXPAND THE FEDERAL
GOVERNMENT'S ROLE IN A FIELD ALREADY PREEMPTED.  IT WOULD NOT CHANGE
THIS PREEMPTION.  STATE AND LOCAL GOVERNMENTS WILL REMAIN UNABLE TO USE
THEIR POLICE POWERS TO CONTROL AIRCRAFT NOISE BY REGULATING THE FLIGHT
OF AIRCRAFT. 

     "'HOWEVER, THE PROPOSED LEGISLATION WILL NOT AFFECT THE RIGHTS

  OF A STATE OR LOCAL PUBLIC AGENCY, AS THE PROPRIETOR OF AN

  AIRPORT, FROM ISSUING REGULATIONS OR ESTABLISHING REQUIREMENTS AS

  TO THE PERMISSIBLE LEVEL OF NOISE WHICH CAN BE CREATED BY

  AIRCRAFT USING THE AIRPORT.  AIRPORT OWNERS ACTING AS PROPRIETORS

  CAN PRESENTLY DENY THE USE OF THEIR AIRPORTS TO AIRCRAFT ON THE

  BASIS OF NOISE CONSIDERATIONS SO LONG AS SUCH EXCLUSION IS

  NONDISCRIMINATORY. 

     "'JUST AS AN AIRPORT OWNER IS RESPONSIBLE FOR DECIDING HOW
LONG

  THE RUNWAYS WILL BE, SO IS THE OWNER RESPONSIBLE FOR OBTAINING

  NOISE EASEMENTS NECESSARY TO PERMIT THE LANDING AND TAKEOFF OF

  THE AIRCRAFT.  THE FEDERAL GOVERNMENT IS IN NO POSITION TO

  REQUIRE AN AIRPORT TO ACCEPT SERVICE BY LARGER AIRCRAFT AND, FOR

  THAT PURPOSE, TO OBTAIN LONGER RUNWAYS. 

[[HC650'(ORIGINAL DOCUMENT PAGE 650)'

  LIKEWISE, THE FEDERAL GOVERNMENT IS IN NO POSITION TO REQUIRE AN
AIRPORT TO ACCEPT SERVICE BY

  NOISIER AIRCRAFT, AND FOR THAT PURPOSE TO OBTAIN ADDITIONAL NOISE
EASEMENTS.  THE ISSUE IS THE

  SERVICE DESIRED BY THE AIRPORT OWNER AND THE STEPS IT IS WILLING
TO TAKE TO OBTAIN THE

  SERVICE.  IN DEALING WITH THIS ISSUE, THE FEDERAL GOVERNMENT
SHOULD NOT SUBSTITUTE ITS

  JUDGMENT FOR THAT OF THE STATES OR ELEMENTS OF LOCAL GOVERNMENT
WHO, FOR THE MOST PART, OWN

  AND OPERATE OUR NATION'S AIRPORTS.  THE PROPOSED LEGISLATION IS
NOT DESIGNED TO DO THIS AND

  WILL NOT PREVENT AIRPORT PROPRIETORS FROM EXCLUDING ANY AIRCRAFT
ON THE BASIS OF NOISE

  CONSIDERATIONS.' 

     "OF COURSE, THE AUTHORITY OF UNITS OF LOCAL GOVERNMENT TO

  CONTROL THE EFFECTS OF AIRCRAFT NOISE THROUGH THE EXERCISE OF

  LAND USE PLANNING AND ZONING POWERS IS NOT DIMINISHED BY THE

  BILL. 

     "FINALLY, SINCE THE FLIGHT OF AIRCRAFT HAS BEEN PRE-EMPTED BY

  THE FEDERAL GOVERNMENT, STATE AND LOCAL GOVERNMENTS CAN PRESENTLY

  EXERCISE NO CONTROL OVER SONIC BOOM.  THE BILL MAKES NO CHANGE IN

  THIS REGARD."  ID., AT 6 - 7. 

IN TERMS OF PRE-EMPTION ANALYSIS, THE MOST REASONABLE READING OF ^
611 APPEARS TO BE THAT IT WAS ENACTED TO ENABLE THE FEDERAL GOVERNMENT
TO DEAL WITH THE NOISE PROBLEM CREATED BY JET AIRCRAFT THROUGH STUDY
AND REGULATION OF THE "SOURCE" OF THE PROBLEM--THE MECHANICAL AND
STRUCTURAL ASPECTS OF JET AND TURBINE AIRCRAFT DESIGN.  THE AUTHORITY
TO "PRESCRIBE AND AMEND SUCH RULES AND REGULATIONS AS HE MAY FIND
NECESSARY TO PROVIDE FOR THE CONTROL AND ABATEMENT OF AIRCRAFT NOISE
AND SONIC BOOM," 49 U.S.C. ^ 1431 (A), WHILE A BROAD GRANT OF AUTHORITY
TO THE ADMINISTRATOR, CANNOT FAIRLY BE READ AS PROHIBITING THE STATES
FROM ENACTING EVERY TYPE OF MEASURE, WHICH MIGHT HAVE THE EFFECT OF
REDUCING AIRCRAFT NOISE, IN THE ABSENCE OF A REGULATION TO THAT EFFECT
UNDER THIS SECTION. 

[[HC651'(ORIGINAL DOCUMENT PAGE 651)'  THE STATUTE ESTABLISHED
EXCLUSIVE FEDERAL CONTROL OF THE TECHNOLOGICAL METHODS FOR REDUCING THE
OUTPUT OF NOISE BY JET AIRCRAFT, BUT THAT IS A FAR CRY FROM SAYING THAT
IT PROHIBITED ANY LOCAL REGULATION OF THE TIMES AT WHICH THE LOCAL
AIRPORT MIGHT BE AVAILABLE FOR THE USE OF JET AIRCRAFT. 

THE COURT OF APPEALS FOUND CRITICAL TO ITS DECISION THE DISTINCTION
BETWEEN THE LOCAL GOVERNMENT AS AN AIRPORT PROPRIETOR AND THE LOCAL
GOVERNMENT AS A REGULATORY AGENCY, WHICH WAS REFLECTED IN THE VIEWS OF
THE SECRETARY OF TRANSPORTATION OUTLINED IN THE SENATE REPORT ON THE
1968 AMENDMENT.  UNDER ITS REASONING, A LOCAL GOVERNMENT UNIT THAT
OWNED AND OPERATED AN AIRPORT WOULD NOT BE PRE-EMPTED BY ^ 611 FROM
TOTALLY, OR, AS HERE, PARTIALLY, EXCLUDING NOISY AIRCRAFT FROM USING
ITS FACILITIES, BUT A MUNICIPALITY HAVING TERRITORIAL JURISDICTION OVER
THE AIRPORT WOULD BE PRE-EMPTED FROM ENACTING AN ORDINANCE HAVING A
SIMILAR EFFECT.  IF THE STATUTE ACTUALLY ENACTED DREW THIS DISTINCTION,
I WOULD OF COURSE RESPECT IT.  BUT SINCE WE ARE DEALING WITH
"LEGISLATIVE HISTORY," RATHER THAT THE WORDS ACTUALLY WRITTEN BY
CONGRESS INTO LAW, I DO NOT BELIEVE IT IS OF THE CONTROLLING
SIGNIFICANCE ATTRIBUTED TO IT BY THE COURT BELOW. 

THE PRE-EMPTION QUESTION TO WHICH THE SECRETARY'S LETTER WAS
ADDRESSED RELATED TO "THE FILED OF NOISE REGULATION INSOFAR AS IT
INVOLVES CONTROLLING THE FLIGHT OF AIRCRAFT", AND THUS INCLUDED.TYPES
OF REGULATION QUITE DIFFERENT FROM THAT ENACTED BY THE CITY OF BURBANK
THAT WOULD BE CLEARLY PRECLUDED.  SEE AMERICAN AIRLINES V. HEMPSTEAD,
SUPRA.  BUT MORE IMPORTANT IS THE HIGHLY PRACTICAL CONSIDERATION THAT
THE HOLLYWOOD-BURBANK AIRPORT IS PROBABLY /4/  THE ONLY NONFEDERAL
AIRPORT IN THE COUNTRY USED BY FEDERALLY CERTIFIED AIR CARRIERS THAT IS
NOT OWNED AND OPERATED BY A STATE OR LOCAL GOVERNMENT. 

[[HC652'(ORIGINAL DOCUMENT PAGE 652)'  THERE IS NO INDICATION THAT
THIS FACT WAS BROUGHT TO THE ATTENTION OF THE SENATE COMMITTEE, OR THAT
THE SECRETARY OF TRANSPORTATION WAS AWARE OF IT IN FRAMING HIS LETTER. 
IT SIMPLY STRAINS CREDULITY TO BELIEVE THAT THE SECRETARY, THE SENATE
COMMITTEE, OR CONGRESS INTENDED THAT ALL AIRPORTS EXCEPT THE HOLLYWOOD
BURBANK AIRPORT COULD ENACT CURFEWS. 

CONSIDERING THE LANGUAGE CONGRESS ENACTED INTO LAW, THE AVAILABLE
LEGISLATIVE HISTORY, AND THE LIGHT SHED BY THESE ON THE CONGRESSIONAL
PURPOSE, CONGRESS DID NOT INTEND EITHER BY THE 1958 ACT OR THE 1968
AMENDMENT TO OUST LOCAL GOVERNMENTS FROM THE ENACTMENT OF REGULATIONS
SUCH AS THAT OF THE CITY OF BURBANK.  THE 1972 ACT QUITE CLEARLY
INTENDED TO MAINTAIN THE STATUS QUO BETWEEN FEDERAL AND LOCAL
AUTHORITIES.  THE LEGISLATIVE HISTORY OF THE 1972 ACT, QUITE APART FROM
ITS CONCERN WITH AVOIDING ADDITIONAL PRE-EMPTION, DISCLOSES A PRIMARY
FOCUS ON THE ALTERATION OF PROCEDURES WITHIN THE FEDERAL GOVERNMENT FOR
DEALING WITH PROBLEMS OF AIRCRAFT NOISE ALREADY ENTRUSTED BY CONGRESS
TO FEDERAL COMPETENCE.  THE 1972 ACT SET UP PROCEDURES BY WHICH THE
ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY WOULD HAVE A ROLE
TO PLAY IN THE FORMULATION AND REVIEW OF STANDARDS PROMULGATED BY THE
FEDERAL AVIATION ADMINISTRATION DEALING WITH NOISE EMISSIONS OF JET
AIRCRAFT.  BUT BECAUSE THESE AGENCIES HAVE EXCLUSIVE AUTHORITY TO
REDUCE NOISE BY PROMULGATING REGULATIONS AND IMPLEMENTING STANDARDS
DIRECTED AT ONE OR SEVERAL OF THE CAUSES OF THE LEVEL OF NOISE, LOCAL
GOVERNMENTAL BODIES ARE NOT THEREBY FORECLOSED FROM DEALING WITH THE
NOISE PROBLEM BY EVERY OTHER CONCEIVABLE METHOD. 

[[HC653'(ORIGINAL DOCUMENT PAGE 653)' 

A LOCAL GOVERNING BODY THAT OWNS AND OPERATES AN AIRPORT IS
CERTAINLY NOT, BY THE COURT'S OPINION, PROHIBITED FROM PERMANENTLY
CLOSING DOWN ITS FACILITIES.  A LOCAL GOVERNING BODY COULD LIKEWISE USE
ITS TRADITIONAL POLICE POWER TO PREVENT THE ESTABLISHMENT OF A NEW
AIRPORT OR THE EXPANSION OF AN EXISTING ONE WITHIN ITS TERRITORIAL
JURISDICTION BY DECLINING TO GRANT THE NECESSARY ZONING FOR SUCH A
FACILITY.  EVEN THOUGH THE LOCAL GOVERNMENT'S DECISION IN EACH CASE
WERE MOTIVATED ENTIRELY BECAUSE OF THE NOISE ASSOCIATED WITH AIRPORTS,
I DO NOT READ THE COURT'S OPINION AS INDICATING THAT SUCH ACTION WOULD
BE PROHIBITED BY THE SUPREMACY CLAUSE MERELY BECAUSE THE FEDERAL
GOVERNMENT HAS UNDERTAKEN THE RESPONSIBILITY FOR SOME ASPECTS OF
AIRCRAFT NOISE CONTROL.  YET IS THIS MAY BE DONE, THE COURT'S OPINION
SURELY DOES NOT SATISFACTORILY EXPLAIN WHY A LOCAL GOVERNING BODY MAY
NOT ENACT A FAR LESS "INTRUSIVE" ORDINANCE SUCH AS THAT OF THE CITY OF
BURBANK. 

THE HISTORY OF CONGRESSIONAL ACTION IN THIS FIELD DEMONSTRATES, I
BELIEVE, AN AFFIRMATIVE CONGRESSIONAL INTENT TO ALLOW LOCAL
REGULATION.  BUT EVEN IF IT DID NOT GO THAT FAR, THAT HISTORY SURELY
DOES NOT REFLECT "THE CLEAR AND MANIFEST PURPOSE OF CONGRESS" TO
PROHIBIT THE EXERCISE OF "THE HISTORIC POLICE POWERS OF THE STATES"
WHICH OUR DECISIONS REQUIRE BEFORE A CONCLUSION OF IMPLIED PRE-EMPTION
IS REACHED.  CLEARLY CONGRESS COULD PRE-EMPT THE FILED TO LOCAL
REGULATION IF IT CHOSE, AND VERY LIKELY THE AUTHORITY CONFERRED ON THE
ADMINISTRATOR OF THE FEDERAL AVIATION ADMINISTRATION BY 49 U.S.C. ^
1431 IS SUFFICIENT TO AUTHORIZE HIM TO PROMULGATE REGULATIONS
EFFECTIVELY PRE-EMPTING LOCAL ACTION.  BUT NEITHER CONGRESS NOR THE
ADMINISTRATOR HAS CHOSEN TO GO THAT ROUTE.  UNTIL ONE OF THEM DOES, THE
ORDINANCE OF THE CITY OF BURBANK IS A VALID EXERCISE OF ITS POLICE
POWER.    THE DISTRICT COURT FOUND THAT THE BURBANK ORDINANCE WOULD
IMPOSE AN UNDUE BURDEN ON INTERSTATE COMMERCE, AND HELD IT INVALID
UNDER THE COMMERCE CLAUSE FOR THAT REASON. 

[[HC654'(ORIGINAL DOCUMENT PAGE 654)'  NEITHER THE COURT OF APPEALS
NOR THIS COURT'S OPINION, IN VIEW OF THEIR DETERMINATION AS TO PRE
EMPTION, REACHED THAT QUESTION.  THE DISTRICT COURT'S CONCLUSION
APPEARS TO BE BASED, AT LEAST IN PART, ON A CONSIDERATION OF THE EFFECT
ON INTERSTATE COMMERCE THAT WOULD RESULT IF ALL MUNICIPAL AIRPORTS IN
THE COUNTRY ENACTED ORDINANCES SUCH AS THAT OF BURBANK.  SINCE THE
PROPER DETERMINATION OF THE QUESTION TURNS ON AN EVALUATION OF THE
FACTS OF EACH CASE, SEE, E.G., BIBB V. NAVAJO FREIGHT LINES, 359 U.S.
520 (1959), AND NOT ON A PREDICTED PROLIFERATION OF POSSIBILITIES, THE
DISTRICT COURT'S CONCLUSION IS OF DOUBTFUL VALIDITY.  THE BURBANK
ORDINANCE DID NOT AFFECT EMERGENCY FLIGHTS, AND HAD THE TOTAL EFFECT OF
PROHIBITING ONE SCHEDULED COMMERCIAL FLIGHT EACH WEEK AND SEVERAL
ADDITIONAL PRIVATE FLIGHTS BY CORPORATE EXECUTIVES; SUCH A RESULT CAN
HARDLY BE HELD TO BE AN UNREASONABLE BURDEN ON COMMERCE.  SINCE THE
COURT EXPRESSES NO OPINION ON THE QUESTION, HOWEVER, I REFRAIN FROM ANY
FURTHER ANALYSIS OF IT.  /5/

[[DFN 

/1/  STATEMENTS OR COMMENTS OF INDIVIDUAL SENATORS OR
REPRESENTATIVES ON THE FLOOR OF EITHER HOUSE ARE NOT TO BE GIVEN GREAT,
LET ALONE CONTROLLING, WEIGHT IN ASCERTAINING THE INTENT OF CONGRESS AS
A WHOLE, SEE, E.G., DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443,
474 (1921); MCCAUGHN V. HERSHEY CHOCOLATE CO., 283 U.S. 488, 494,
(1931); CF. WRIGHT V. VINTON BRANCH OF MOUNTAIN TRUST BANK, 300 U.S.
440, 464 (1937).  THIS GUIDANCE IS PARTICULARLY APPROPRIATE IN THIS
CASE, AS THE STATEMENTS OF TWO INDIVIDUAL CONGRESSMEN QUOTED IN THE
COURT'S OPINION ARE AT ODDS WITH THE VIEWS EXPRESSED IN THE COMMITTEE
REPORTS. 

/2/  HEARINGS BEFORE THE SUBCOMMITTEE ON AVIATION OF THE SENATE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE (HEREAFTER COMMERCE
COMMITTEE), ON S. 3880, FEDERAL AVIATION AGENCY ACT, 85TH CONG., 2D
SESS., 279. 

/3/  "(A) CONSULTATIONS; STANDARDS; RULES AND REGULATIONS. 

"IN ORDER TO AFFORD PRESENT AND FUTURE RELIEF AND PROTECTION TO THE
PUBLIC FROM UNNECESSARY AIRCRAFT NOISE AND SONIC BOOM, THE
ADMINISTRATOR OF THE FEDERAL AVIATION ADMINISTRATION, AFTER
CONSULTATION WITH THE SECRETARY OF TRANSPORTATION, SHALL PRESCRIBE AND
AMEND STANDARDS FOR THE MEASUREMENT OF AIRCRAFT NOISE AND SONIC BOOM
AND SHALL PRESCRIBE AND AMEND SUCH RULES AND REGULATIONS AS HE MAY FIND
NECESSARY TO PROVIDE FOR THE CONTROL AND ABATEMENT OF AIRCRAFT NOISE
AND SONIC BOOM, INCLUDING THE APPLICATION OF SUCH STANDARDS, RULES, AND
REGULATIONS IN THE ISSUANCE, AMENDMENT, MODIFICATION, SUSPENSION, OR
REVOCATION OF ANY CERTIFICATE AUTHORIZED BY THIS SUBCHAPTER. 

"(B) CONSIDERATIONS DETERMINATIVE OF STANDARDS, RULES, AND
REGULATIONS. 

"IN PRESCRIBING AND AMENDING STANDARDS, RULES AND REGULATIONS UNDER
THIS SECTION, THE ADMINISTRATOR SHALL-- 

"(1) CONSIDER RELEVANT AVAILABLE DATA RELATING TO AIRCRAFT NOISE AND
SONIC BOOM, INCLUDING THE RESULTS OF RESEARCH, DEVELOPMENT, TESTING,
AND EVALUATION ACTIVITIES CONDUCTED PURSUANT TO THIS CHAPTER AND
CHAPTER 23 OF THIS TITLE; 

"(2) CONSULT WITH SUCH FEDERAL, STATE, AND INTERSTATE AGENCIES AS HE
DEEMS APPROPRIATE; 

"(3) CONSIDER WHETHER ANY PROPOSED STANDARD, RULE, OR REGULATION IS
CONSISTENT WITH THE HIGHEST DEGREE OF SAFETY IN AIR COMMERCE OR AIR
TRANSPORTATION IN THE PUBLIC INTEREST; 

"(4) CONSIDER WHETHER ANY PROPOSED STANDARD, RULE, OR REGULATION IS
ECONOMICALLY REASONABLE, TECHNOLOGICALLY PRACTICABLE, AND APPROPRIATE
FOR THE PARTICULAR TYPE OF AIRCRAFT, AIRCRAFT ENGINE, APPLIANCE, OR
CERTIFICATE TO WHICH IT WILL APPLY; AND 

"(5) CONSIDER THE EXTENT TO WHICH SUCH STANDARD, RULE, OR REGULATION
WILL CONTRIBUTE TO CARRYING OUT THE PURPOSES OF THIS SECTION. 

"(C) AMENDMENT, MODIFICATION, SUSPENSION, OR REVOCATION OF
CERTIFICATE; NOTICE AND APPEAL RIGHTS. 

"IN ANY ACTION TO AMEND, MODIFY, SUSPEND, OR REVOKE A CERTIFICATE IN
WHICH VIOLATION (OF) AIRCRAFT NOISE OR SONIC BOOM STANDARDS, RULES, OR
REGULATIONS IS AT ISSUE, THE CERTIFICATE HOLDER SHALL HAVE THE SAME
NOTICE AND APPEAL RIGHTS AS ARE CONTAINED IN SECTION 1429 OF THIS
TITLE, AND IN ANY APPEAL TO THE NATIONAL TRANSPORTATION SAFETY BOARD,
THE BOARD MAY AMEND, MODIFY, OR REVERSE THE ORDER OF THE ADMINISTRATOR
IF IT FINDS THAT CONTROL OR ABATEMENT OF AIRCRAFT NOISE OR SONIC BOOM
AND THE PUBLIC INTEREST DO NOT REQUIRE THE AFFIRMATION OF SUCH ORDER,
OR THAT SUCH ORDER IS NOT CONSISTENT WITH SAFETY IN AIR COMMERCE OR AIR
TRANSPORTATION." 

/4/  THE RECORD IS NOT EXACTLY CLEAR ON THIS POINT, BUT IT DOES
APPEAR TO BE THE CASE.  ALTHOUGH THERE ARE SEVERAL AIRPORTS OWNED BY
MUNICIPALITIES OR OTHER GOVERNMENTAL UNITS THAT ARE LOCATED OUTSIDE OF
THE BOUNDARIES OF THE UNITS, THERE DOES NOT APPEAR TO BE ANY OTHER
PRIVATELY OWNED AIRPORT, AT WHICH CERTIFIED AIR CARRIERS OPERATE, IN
THE COUNTRY. 

/5/  ALTHOUGH CITED BY THE COURT, THIS SITUATION IS CLEARLY NOT A
COOLEY SITUATION, IN WHICH THE CONTROL OF AIRCRAFT NOISE "ADMITS) ONLY
OF ONE UNIFORM SYSTEM, OR PLAN OF REGULATION, (WHICH) MAY JUSTLY BE
SAID TO BE OF SUCH A NATURE AS TO REQUIRE EXCLUSIVE LEGISLATION BY
CONGRESS."  COOLEY V. BOARD OF WARDENS, 12 HOW.  299, 319 (1852).  THE
COURT BELOW ALSO HELD, BUT BY A DIVIDED VOTE, THAT THE BURBANK
ORDINANCE WAS INVALID BECAUSE IT WAS IN CONFLICT WITH A CLEARLY
ARTICULATED FEDERAL POLICY, TO WIT, A NON-MANDATORY RUNWAY PREFERENCE
ORDER OF THE FAA TOWER CHIEF AT BURBANK WHICH REQUESTED PILOTS TO USE A
PARTICULAR RUNWAY AT NIGHT.  THE COURT DOES NOT DECIDE THIS CASE ON
THAT GROUND; I SEE NO OCCASION TO EXPRESS IN DETAIL MY VIEWS ON THE
CONFLICT ISSUE, EXCEPT TO NOTE MY DOUBT AS TO THE CORRECTNESS OF THE
DISPOSITION OF THAT QUESTION. 

RICHARD L. SIEG, JR., ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEFS WAS SAMUEL GORLICK. 

WARREN CHRISTOPHER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEFS WAS RALPH W. DAU. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES AS AMICUS CURIAE URGING REVERSAL.  ON THE BRIEF WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WOOD, ANDREW L. FREY, AND
JOHN W. BARNUM.  NICHOLAS C. YOST, DEPUTY ATTORNEY GENERAL ARGUED THE
CAUSE FOR THE ATTORNEY GENERAL OF CALIFORNIA AS AMICUS CURIAE URGING
REVERSAL.  WITH HIM ON THE BRIEF WERE EVELLE J. YOUNGER, ATTORNEY
GENERAL, PRO SE, JAY L. SHAVELSON, ASSISTANT ATTORNEY GENERAL, AND
LARRY C. KING, DEPUTY ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY PATRICK J.
FALVEY, JOSEPH LESSER, ISOBEL E. MURIHEAD, AND VIGDOR D. BERNSTEIN FOR
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY; BY ROBERT D. POWELL FOR
THE NATIONAL BUSINESS AIRCRAFT ASSOCIATION, INC.; AND BY SAMUEL J.
COHEN FOR THE AIR LINE PILOTS ASSOCIATION, INTERNATIONAL. 
..END :



UNITED STATES V. PENNSYLVANIA INDUSTRIAL CHEMICAL CORP., 411 U.S.
655 



       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT 

     NO. 72 - 624.  ARGUED MARCH 27, 1973,--DECIDED MAY 14, 1973;

  461 F.2D 468, MODIFIED AND REMANDED TO DISTRICT COURT. 


    AFTER THE DISTRICT COURT REFUSED RESPONDENT'S OFFERS OF PROOF

  OF RELIANCE ON ARMY CORPS OF ENGINEERS REGULATIONS LIMITING

  VIOLATIONS TO THOSE IMPEDING NAVIGATION, RESPONDENT WAS CONVICTED

  OF VIOLATING ^ 13 OF THE RIVERS AND HARBORS ACT OF 1899 BY

  DISCHARGING INDUSTRIAL POLLUTANTS INTO A NAVIGABLE RIVER.  THE

  COURT OF APPEALS REVERSED ON THE GROUND THAT ^ 13 DID NOT APPLY

  ABSENT FORMALIZED PERMIT PROCEDURES OR, ALTERNATIVELY, THAT

  RESPONDNET SHOULD HAVE BEEN ALLOWED TO PROVE THAT IT WAS

  AFFIRMATIVELY MISLED BY THE CORPS OF ENGINEERS REGULATIONS TO

  BELIEVE THAT NO PERMIT WAS NEEDED FOR THESE INDUSTRIAL

  POLLUTANTS.  HELD: 

     1.  SECTION 13 PROHIBITIONS APPLY WITHOUT REGARD TO FORMALIZED

  PERMIT PROCEDURES THAT IT AUTHORIZES BUT DOES NOT MANDATE, AND

  CONGRESS DID NOT INTEND TO PERMIT DISCHARGES SPECIFICALLY

  PROHIBITED BY ^ 13, WHEN IT ENACTED THE 1965 AND 1970 WATER

  QUALITY ACTS DIRECTING STATES TO CREATE POLLUTION PREVENTION AND

  ABATEMENT PROGRAMS.  PP. 662 - 670. 

     2.  ALTHOUGH ^ 13 BARS ALL DISCHARGES OF POLLUTANTS AND NOT

  ONLY THOSE THAT CONSTITUTE OBSTRUCTIONS TO NAVIGATION, THE CORPS

  OF ENGINEERS CONSISTENTLY LIMITED ITS REGULATIONS TO SUCH

  OBSTRUCTIONS AND THUS MAY HAVE DEPRIVED RESPONDENT OF FAIR

  WARNING AS TO WHAT CONDUCT THE GOVERNMENT INTENDED TO MAKE

  CRIMINAL.  PP. 670 - 675. 

     BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, WHITE, AND MARSHALL, JJ., JOINED; IN PART II OF WHICH

  BURGER, C.J., AND STEWART AND POWELL, JJ., JOINED; AND IN PART I

  IN WHICH BLACKMUN AND REHNQUIST, JJ., JOINED.  BURGER, C.J., AND

  STEWART AND POWELL, JJ., FILED A STATEMENT DISSENTING FROM PART

 I, POST, P. 675.  BLACKMUN AND REHNQUIST, JJ., FILED A STATEMENT

  DISSENTING FROM THE JUDGMENT AND PART II, POST, P. 675. 

[[HC656'(ORIGINAL DOCUMENT PAGE 656)' 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

WE REVIEW HERE THE REVERSAL BY THE COURT OF APPEALS FOR THE THIRD
CIRCUIT OF RESPONDENT'S CONVICTION FOR VIOLATION OF ^ 13 /1/  OF THE
RIVERS AND HARBORS ACT OF 1899, 30 STAT. 1152, 33 U.S.C. ^ 407. 

[[HC657'(ORIGINAL DOCUMENT PAGE 657)'  TWO QUESTIONS ARE PRESENTED. 
THE FIRST IS WHETHER THE GOVERNMENT MAY PROSECUTE AN ALLEGED POLLUTER
UNDER ^ 13 IN THE ABSENCE OF THE PROMULGATION OF A FORMAL REGULATORY
PERMIT PROGRAM BY THE SECRETARY OF THE ARMY.  /2/  THE SECOND IS
WHETHER, IF THE PROSECUTION IS MAINTAINABLE DESPITE THE NONEXISTENCE OF
A FORMAL REGULATORY-PERMIT PROGRAM, THIS RESPONDENT WAS ENTITLED TO
ASSERT AS A DEFENSE ITS ALLEGED RELIANCE ON THE ARMY CORPS OF
ENGINEERS'  LONGSTANDING ADMINISTRATIVE CONSTRUCTION OF ^ 13 AS LIMITED
TO WATER DEPOSITS THAT IMPEDE OR OBSTRUCT NAVIGATION. 

ON APRIL 6, 1971, THE UNITED STATES FILED A CRIMINAL INFORMATION
AGAINST THE RESPONDENT, PENNSYLVANIA INDUSTRIAL CHEMICAL CORP. 

[[HC658'(ORIGINAL DOCUMENT PAGE 658)'  (PICCO), ALLEGING THAT ON
FOUR SEPARATE OCCASIONS IN AUGUST 1970 THE CORPORATION HAD DISCHARGED
INDUSTRIAL REFUSE MATTERS /3/  INTO THE MONONGAHELA RIVER /4/  IN
VIOLATION OF ^ 13 OF THE 1899 ACT.  BY ITS TERMS, ^ 13 /5/  PROHIBITS
THE DISCHARGE OR DEPOSIT INTO NAVIGABLE WATERS OF "ANY REFUSE MATTER OF
ANY KIND OF DESCRIPTION WHATEVER OTHER THAN THAT FLOWING FROM STREETS
AND SEWERS AND PASSING THEREFROM IN A LIQUID STATE."  THE SECOND
PROVISO TO ^ 13 PROVIDES, HOWEVER, THAT "THE SECRETARY OF THE ARMY . .
. MAY PERMIT THE DEPOSIT"  /6/  OF REFUSE MATTER DEEMED BY THE ARMY
CORPS OF ENGINEERS NOT TO BE INJURIOUS TO NAVIGATION, "PROVIDED
APPLICATION IS MADE TO (THE SECRETARY) PRIOR TO DEPOSITING SUCH
MATERIAL.  . . ."  /7/  AT TRIAL, IT WAS STIPULATED THAT PICCO OPERATED
A MANUFACTURING PLANT ON THE BANK OF THE MONONGAHELA RIVER, THAT PICCO
OWNED CONCRETE AND IRON PIPES DISCHARGED THE REFUSE MATTER INTO THE
RIVER, AND THAT PICCO HAD NOT OBTAINED A PERMIT FROM THE SECRETARY OF
THE ARMY PRIOR TO THE DISCHARGES IN QUESTION. 

[[HC659'(ORIGINAL DOCUMENT PAGE 659)'  PICCO ARGUED, HOWEVER, THAT
THE DISCHARGES DID NOT VIOLATE ^ 13 BECAUSE (1) THE LIQUID SOLUTION
FLOWING FROM ITS PIPES WAS "SEWAGE" EXEMPT FROM THE STATUTORY
PROSCRIPTION; (2) THE DISCHARGE DID NOT CONSTITUTE "REFUSE MATTER"
WITHIN THE MEANING OF ^ 13 BECAUSE IT WAS NOT MATTER THAT WOULD "IMPEDE
NAVIGATION"; AND (3) THE TERM "REFUSE" AS USED IN ^ 13 MUST BE DEFINED
IN LIGHT OF THE WATER QUALITY STANDARDS ESTABLISHED PURSUANT TO THE
WATER POLLUTION CONTROL ACT OF 1948 AND ITS AMENDMENTS.  /8/  IN
ADDITION, PICCO SOUGHT TO INTRODUCE EVIDENCE TO SHOW THAT ITS FAILURE
TO OBTAIN A ^ 13 PERMIT WAS EXCUSABLE IN THIS INSTANCE BECAUSE PRIOR TO
DECEMBER 1970 /9/  THE ARMY CORPS OF ENGINEERS HAD NOT ESTABLISHED A
FORMAL PROGRAM FOR ISSUING PERMITS UNDER ^ 13 AND, MOREOVER, BECAUSE
THE CORPS CONSISTENTLY CONSTRUED ^ 13 AS LIMITED TO THOSE DEPOSITS THAT
WOULD IMPEDE OR OBSTRUCT NAVIGATION, THEREBY AFFIRMATIVELY MISLEADING
PICCO INTO BELIEVING THAT A ^ 13 PERMIT WAS NOT REQUIRED AS A CONDITION
TO DISCHARGES OF MATTER INVOLVED IN THIS CASE. 

[[HC660'(ORIGINAL DOCUMENT PAGE 660)'  THE DISTRICT COURT REJECTED
EACH OF PICCO'S ARGUMENTS AS TO THE SCOPE AND MEANING OF ^ 13,
DISALLOWED PICCO'S OFFERS OF PROOF ON THE GROUND THAT THEY WERE NOT
RELEVANT TO THE ISSUE OF GUILT UNDER ^ 13, AND INSTRUCTED THE JURY
ACCORDINGLY.  PICCO WAS CONVICTED ON ALL FOUR COUNTS AND ASSESSED THE
MAXIMUM FINE OF $2,500 ON EACH COUNT.  329 F.SUPP.  1118 (WD PA.
1971). 

ON APPEAL, THE COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED THE
DISTRICT COURT'S HOLDINGS AS TO THE APPLICATION OF ^ 13 TO THE MATTER
DISCHARGED BY PICCO INTO THE RIVER, /10/  BUT REJECTED THE DISTRICT
COURT'S CONCLUSION THAT THE ^ 13 PROHIBITION WAS OPERATIVE IN THE
ABSENCE OF FORMALIZED PERMIT PROCEDURES.  461 F.2D 468 (CA3 1972).  THE
COURT OF APPEALS REASONED THAT THIS INTERPRETATION WAS TANTAMOUNT TO
READING ^ 13 TO BE AN ABSOLUTE PROHIBITION AGAINST THE DEPOSIT OF ANY
"FOREIGN SUBSTANCE" INTO THE NAVIGABLE WATERS OF THE COUNTRY AND THIS
WOULD HAVE HAD SUCH A "DRASTIC IMPACT . . . ON THE NATION'S ECONOMY
EVEN IN 1899," ID., AT 473, THAT THIS INTERPRETATION COULD NOT
REASONABLY BE IMPUTED TO CONGRESS.  INSTEAD, THE COURT OF APPEALS
CONCLUDED THAT CONGRESS INTENDED TO CONDITION ENFORCEMENT OF ^ 13 ON
THE CREATION AND OPERATION OF AN ADMINISTRATIVE PERMIT PROGRAM.  THE
COURT OF APPEALS STATED: 

"CONGRESS CONTEMPLATED A REGULATORY PROGRAM PURSUANT TO WHICH
PERSONS IN PICCO'S POSITION WOULD BE ABLE TO DISCHARGE INDUSTRIAL
REFUSE AT THE DISCRETION OF THE SECRETARY OF THE ARMY.  IT INTENDED
CRIMINAL PENALTIES FOR THOSE WHO FAILED TO COMPLY WITH THIS REGULATORY
PROGRAM.  CONGRESS DID NOT, HOWEVER, INTEND CRIMINAL PENALTIES FOR
PEOPLE WHO FAILED TO COMPLY WITH A NON-EXISTENT REGULATORY PROGRAM." 
ID., AT 475. 

[[HC661'(ORIGINAL DOCUMENT PAGE 661)' 

THE COURT OF APPEALS SEEMS TO HAVE FOUND SUPPORT FOR THIS
INTERPRETATION OF ^ 13 IN "CONGRESS' SUBSEQUENT ENACTMENTS IN THE WATER
QUALITY FIELD."  ID., AT 473.  THE COURT STATED THAT "(THERE WOULD
APPEAR TO BE SOMETHING FUNDAMENTALLY INCONSISTENT BETWEEN THE PROGRAM
OF DEVELOPING AND ENFORCING WATER QUALITY STANDARDS UNDER THE WATER
QUALITY ACT AND SECTION 407 OF THE RIVERS AND HARBORS ACT (^ 13), IF
THE EFFECT OF THE LATTER IS TO PROHIBIT ALL DISCHARGES OF INDUSTRIAL
WASTE INTO NAVIGABLE WATERS."  IBID.  AS IT VIEWED THE MATTER, "(WHAT
MAKES THE TWO STATUTES COMPATIBLE IS THE PERMIT PROGRAM CONTEMPLATED BY
ERROR FOR THE DISTRICT COURT TO HAVE REFUSED PICCO THE OPPORTUNITY TO
PROVE THE NONEXISTENCE OF A FORMAL PERMIT PROGRAM AT THE TIME OF THE
ALLEGED OFFENSES. 

AS AN ALTERNATIVE GROUND FOR REVERSAL, A MAJORITY OF THE COURT OF
APPEALS HELD THAT THE DISTRICT COURT ERRED IN DISALLOWING PICCO'S OFFER
OF PROOF THAT IT HAD BEEN AFFIRMATIVELY MISLED BY THE CORPS OF
ENGINEERS INTO BELIEVING THAT IT WAS NOT NECESSARY TO OBTAIN A ^ 13
PERMIT FOR THE DISCHARGE OF INDUSTRIAL EFFLUENTS SUCH AS THOSE INVOLVED
IN THIS CASE.  IF SUCH FACTS WERE TRUE, THE COURT OF APPEALS STATED, IT
WOULD BE FUNDAMENTALLY UNFAIR TO ALLOW PICCO'S CONVICTION TO STAND. 

THUS, THE COURT OF APPEALS SET ASIDE PICCO'S CONVICTION AND REMANDED
THE CASE TO THE DISTRICT COURT TO GIVE PICCO AN OPPORTUNITY TO PRESENT
THE PROFFERED PROOFS THAT HAD BEEN DISALLOWED BY THE DISTRICT COURT. 

WE GRANTED THE GOVERNMENT'S PETITION FOR CERTIORARI.  409 U.S. 1074
(1972).  WE AGREE WITH THE COURT OF APPEALS THAT THE DISTRICT COURT'S
JUDGMENT OF CONVICTION MUST BE REVERSED, BUT WE CANNOT AGREE WITH THE
COURT OF APPEALS' INTERPRETATION OF ^ 13 AS FORECLOSING PROSECUTION IN
THE ABSENCE OF THE EXISTENCE OF A FORMAL REGULATORY-PERMIT PROGRAM. 

[[HC662'(ORIGINAL DOCUMENT PAGE 662)'

        I 

OF "ANY REFUSE MATTER" INTO NAVIGABLE WATERS (WITH THE STREETS-AND
SEWERS EXCEPTION); AND THE DEPOSIT OF "MATERIAL OF ANY KIND" ON THE
BANK OF ANY NAVIGABLE WATERWAY OR TRIBUTARY WHERE IT MIGHT BE WASHED
INTO THE WATER AND THEREBY IMPEDE OR OBSTRUCT NAVIGATION.  LA MERCED,
84 F.2D 444, 445 (CA9 1936); UNITED STATES V. CONSOLIDATION COAL CO.,
354 F.SUPP.  173, 175, (ND W.VA. 1973).  THE SECOND PROVIOS TO ^ 13
AUTHORIZES THE SECRETARY OF THE ARMY TO EXEMPT CERTAIN WATER DEPOSITS
FROM THE PROHIBITIONS OF ^ 13, "PROVIDED APPLICATION IS MADE TO HIM
PRIOR TO DEPOSITING SUCH MATERIAL."  IN EXERCISING THAT AUTHORITY, THE
PROVISO REQUIRES THE SECRETARY TO RELY ON THE JUDGMENT OF THE CHIEF OF
ENGINEERS THAT ANCHORAGE AND NAVIGATION WILL NOT BE INJURED BY SUCH
DEPOSITS.  BUT, EVEN IN A SITUATION WHERE THE CHIEF OF ENGINEERS
CONCEDES THAT A CERTAIN DEPOSIT WILL NOT INJURE ANCHORAGE AND
NAVIGATION, THE SECRETARY NEED NOT NECESSARILY PERMIT THE DEPOSIT, FOR
THE PROVISO MAKES THE SECRETARY'S AUTHORITY DISCRETIONARY--I.E., IT
PROVISO FURTHER REQUIRES THAT PERMITS ISSUED BY THE SECRETARY ARE TO
PRESCRIBE LIMITS AND CONDITIONS, ANY VIOLATION OF WHICH IS UNLAWFUL. 
IT IS CRUCIAL TO OUR INQUIRY, HOWEVER, THAT NEITHER THE PROVISO NOR ANY
OTHER PROVISION OF THE STATUTE REQUIRES THAT THE SECRETARY PRESCRIBE
GENERAL REGULATIONS OR SET CRITERIA GOVERNING ISSUANCE OF PERMITS. 

THUS, WHILE NOTHING IN ^ 13 PRECLUDES THE ESTABLISHMENT OF A FORMAL
REGULATORY PROGRAM BY THE SECRETARY, IT IS EQUALLY CLEAR THAT NOTHING
IN THE SECTION REQUIRES THE ESTABLISHMENT OF SUCH A PROGRAM AS A
CONDITION TO RENDERING ^ 13 OPERATIVE.  UNITED STATES V. GRANITE STATE
PACKING CO., 470 F.2D 303, 304 (CA1 1972). 

[[HC663'(ORIGINAL DOCUMENT PAGE 663)'  IN CONTRAST, OTHER PROVISIONS
OF THE RIVERS AND HARBORS ACT OF 1899, /11/  DO INCLUDE A REQUIREMENT
FOR REGULATIONS.  CONSEQUENTLY, WE DISAGREE WITH THE COURT OF APPEALS
THAT ^ 13 ITSELF PRECLUDES PROSECUTION FOR VIOLATION OF ITS PROVISIONS
IN THE ABSENCE OF A FORMAL REGULATORY-PERMIT PROGRAM. 

SIMILARLY, THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF ^ 13 THAT
SUPPORTS THE CONCLUSION OF THE COURT OF APPEALS THAT SUCH A REQUIREMENT
IS TO BE READ INTO THE SECTION.  SECTION 13 IS ONE SECTION OF A
COMPREHENSIVE LAW ENACTED IN 1899 TO CODIFY PRE-EXISTING STATUTES
DESIGNED TO PROTECT AND PRESERVE OUR NATION'S NAVIGABLE WATERWAYS. 
UNITED STATES V. STANDARD OIL CO., 384 U.S. 2 4, 226 (1966). 

THE HISTORY OF THE 1899 ACT BEGINS WITH THIS COURT'S DECISION IN
1888 IN WILLAMETTE IRON BRIDGE CO. V. HATCH, 125 U.S. 1.  THE COURT
THERE HELD THAT THERE WAS NO FEDERAL COMMON LAW PROHIBITING
OBSTRUCTIONS AND NUISANCES IN NAVIGABLE WATERS.  IN RESPONSE TO THAT
DECISION, CONGRESS PASSED A SERIES OF LAWS THAT WERE LATER REENACTED AS
THE RIVERS AND HARBORS ACT OF 1899.  SECTION 6 OF THE FIRST SUCH LAW,
THE RIVERS AND HARBORS ACT OF 1890, PROVIDED IN PART:  10"THAT IT SHALL
NOT BE LAWFUL TO CAST, THROW, EMPTY,

  OR UNLADE, OR CAUSE, SUFFER, OR PROCURE TO BE CAST, THROWN,
EMPTIED, OR UNLADEN, EITHER FROM

  OR OUT OF ANY SHIP, VESSEL, LIGHTER, BARGE, BOAT, OR OTHER CRAFT,
OR FROM THE SHORE, PIER,

  WHARF, FURNACE, MANUFACTURING ESTABLISHMENTS, OR MILLS OF ANY
KIND WHATEVER, ANY BALLAST,

  STONE, SLATE, GRAVEL, EARTH, RUBBISH, WRECK, FILTH, SLABS,
EDGINGS, SAWDUST, SLAG, CINDERS,

  ASHES, REFUSE, OR OTHER WASTE OF ANY KIND, INTO ANY PORT, ROAD,
ROADSTEAD, HARBOR, HAVEN,

  NAVIGABLE RIVER, OR NAVIGABLE WATERS OF THE UNITED STATES WHICH
SHALL TEND TO IMPEDE OR

  OBSTRUCT NAVIGATION, OR TO DEPOSIT OR PLACE OR CAUSE, SUFFER, OR
PROCURE TO BE DEPOSITED OR

  PLACED, ANY BALLAST, STONE, SLATE, GRAVEL, EARTH, RUBBISH, WRECK,
FILTH, SLABS, EDGINGS,

  SAWDUST, OR OTHER WASTE IN ANY PLACE OR SITUATION ON THE BANK OF
ANY NAVIGABLE WATERS WHERE

  THE SAME SHALL BE LIABLE TO BE WASHED INTO SUCH NAVIGABLE WATERS,
EITHER BY ORDINARY OR HIGH

  TIDES, OR BY STORMS OR FLOODS, OR OTHERWISE, WHEREBY NAVIGATION
SHALL OR MAY BE IMPEDED OR

  OBSTRUCTED: PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL EXTEND
OR BE CONSTRUED TO EXTEND

  . . . TO PREVENT THE DEPOSITING OF ANY SUBSTANCE ABOVE MENTIONED
UNDER A PERMIT FROM THE

  SECRETARY OF WAR, WHICH HE IS HEREBY AUTHORIZED TO GRANT, IN ANY
PLACE DESIGNATED BY HIM WHERE

  NAVIGATION WILL NOT BE OBSTRUCTED THEREBY."  26 STAT. 453. 

[[HC664'(ORIGINAL DOCUMENT PAGE 664)' 

FOUR YEARS LATER, CONGRESS ENACTED THE RIVERS AND HARBORS ACT OF
1894.  SECTION 6 OF THAT ACT PROVIDED IN PART: 

     "THAT IT SHALL NOT BE LAWFUL TO PLACE, DISCHARGE, OR DEPOSIT,

  BY ANY PROCESS OR IN ANY MANNER, BALLAST, REFUSE, DIRT, ASHES,

  CINDERS, MUD, SAND DREDGINGS, SLUDGE, ACID, OR ANY OTHER MATTER

  OF ANY KIND OTHER THAN THAT FLOWING FROM STREETS, SEWERS, AND

  PASSING THEREFROM IN A LIQUID STATE, IN THE WATERS OF ANY HARBOR

  OR RIVER OF THE UNITED STATES, FOR THE IMPROVEMENT OF WHICH MONEY

  HAS BEEN APPROPRIATED BY CONGRESS, ELSEWHERE THAN WITHIN THE

  LIMITS DEFINED AND PERMITTED BY THE SECRETARY OF WAR; NEITHER

 SHALL IT BE LAWFUL FOR ANY PERSON OR PERSONS TO MOVE, DESTROY, OR

  INJURE IN ANY MANNER WHATEVER ANY SEA WALL, BULKHEAD, JETTY,

  DIKE, LEVEE, WHARF, PIER OR OTHER WORK BUILT BY THE UNITED

  STATES, IN WHOLE OR IN PART, FOR THE PRESERVATION AND IMPROVEMENT

  OF ANY OF ITS NAVIGABLE WATERS, OR TO PREVENT FLOODS, OR AS

  BOUNDARY MARKS, TIDE GAUGES, SURVEYING STATIONS, BUOYS, OR OTHER

  ESTABLISHED MARKS.  . . ."  28 STAT. 363.  /12/ 

[[HC665'(ORIGINAL DOCUMENT PAGE 665)' 

IN 1896, CONGRESS COMMISSIONED THE SECRETARY OF WAR TO COMPILE THE
VARIOUS ACTS PROTECTING NAVIGABLE WATERS AND "TO SUBMIT THE SAME TO
CONGRESS . . . TOGETHER WITH SUCH RECOMMENDATION AS TO REVISION,
EMENDATION, OR ENLARGEMENT OF THE SAID LAWS AS, IN HIS JUDGMENT, WILL
BE ADVANTAGEOUS TO THE PUBLIC INTEREST."  /13/  THE SECRETARY, IN TURN,
DELEGATED THE TASK TO THE CHIEF OF ENGINEERS, AND IN FEBRUARY 1897, THE
CHIEF OF ENGINEERS DELIVERED A DRAFT PROPOSAL TO THE SECRETARY TOGETHER
WITH A COVER LETTER THAT READ IN PART:     "I HAVE THE HONOR TO SUBMIT
HEREWITH (1) A COMPILATION (OF THE VARIOUS EXISTING LAWS PROTECTING
NAVIGABLE WATERS) AND (2) A DRAFT OF AN ACT EMBODYING SUCH REVISION AND
ENLARGEMENT OF THE AFORESAID LAWS AS THE EXPERIENCE OF THIS OFFICE HAS
SHOWN TO BE ADVANTAGEOUS TO THE PUBLIC INTEREST."  /14/ 

IN HIS COMPILATION, THE CHIEF OF ENGINEERS COMBINED THE ESSENTIALS
OF ^ 6 OF THE 1890 ACT AND OF ^ 6 OF THE 1894 ACT TO FORM THE PRESENT ^
13 OF THE RIVERS AND HARBORS ACT OF 1899.  CONGRESS ENACTED THE
COMPILATION WITH VIRTUALLY NO DEBATE THAT CONTAINS MENTION OF THE
INTENDED OPERATIVE SCOPE OF ^ 13.  IT SEEMS QUITE CLEAR, HOWEVER, THAT
^ 13 WAS INTENDED TO HAVE NO WIDER OR NARROWER A SCOPE THAN THAT OF ITS
TWO PREDECESSOR STATUTES. 

[[HC666'(ORIGINAL DOCUMENT PAGE 666)'  UNITED STATES V. STANDARD OIL
CO., 384 U.S., AT 227 - 228.  IT IS TRUE, OF COURSE, THAT THE CHIEF OF
ENGINEERS WAS AUTHORIZED TO RECOMMEND A "REVISION" OR "ENLARGEMENT" OF
THE EXISTING LAWS AND THAT HIS COVER LETTER ACCOMPANYING THE
COMPILATION REFERRED TO "A DRAFT OF AN ACT EMBODYING SUCH REVISION AND
ENLARGEMENT OF THE AFORESAID LAWS."  BUT THE REVISION AND ENLARGEMENT
WERE LIMITED TO "THE EXISTING LAW RELATING TO THE REMOVAL OF WRECKS,"
/15/  AND EVEN ON THAT SUBJECT THE CHANGES WERE MINOR.  INDEED, SENATOR
FRYE, THE CHAIRMAN OF THE SENATE RIVERS AND HARBORS COMMITTEE, STATED
IN RESPONSE TO A QUESTION WHETHER ANY GREAT CHANGE WAS MADE IN THE
EXISTING LAW BY THE COMPILATION:  "OH, NO. THERE ARE NOT TEN WORDS
CHANGED IN THE ENTIRE THIRTEEN SECTIONS.  IT IS A COMPILATION . . .
(WITH) (VERY SLIGHT CHANGES TO REMOVE AMBIGUITIES."  /16/ 

THUS, THE COURT OF APPEALS' INTERPRETATION OF ^ 13 HAS NO SUPPORT IN
THE PREDECESSOR STATUTES OF ^ 13.  PLAINLY, NEITHER OF THE PREDECESSOR
STATUTES CONTEMPLATED THAT APPLICATION OF THEIR OPERATIVE PROVISIONS
WOULD TURN ON THE EXISTENCE OF A FORMAL REGULATORY PROGRAM.  ON THE
CONTRARY, ^ 6 OF THE 1890 ACT PROVIDED ONLY THAT ITS ABSOLUTE BAN ON
THE DISCHARGE OF ENUMERATED SUBSTANCES COULD NOT BE CONSTRUED "TO
PREVENT" THE SECRETARY OF WAR FROM GRANTING, IN HIS DISCRETION, A
PERMIT TO DEPOSIT SUCH MATERIAL INTO NAVIGABLE WATERS.  AND ^ 6 OF THE
1894 ACT CONTAINED NO DIRECT PERMIT AUTHORIZATION WHATSOEVER.  /17/ 

[[HC667'(ORIGINAL DOCUMENT PAGE 667)' 

WE TURN, THEN, TO THE COURT OF APPEALS' ASSERTION THAT ITS
CONCLUSION IS SUPPORTED BY LATER CONGRESSIONAL ENACTMENTS IN THE WATER
QUALITY FIELD.  IN THIS REGARD, THE COURT OF APPEALS PLACED PRIMARY
RELIANCE /18/  ON THE 1965 AND 1970 AMENDMENTS TO THE WATER POLLUTION
CONTROL ACT OF 1948--THE WATER QUALITY ACT OF 1965, 79 STAT. 903, AND
THE WATER QUALITY IMPROVEMENT ACT OF 1970, 84 STAT. 91.  /19/ 

[[HC668'(ORIGINAL DOCUMENT PAGE 668)'  THE COURT OF APPEALS
CONCLUDED THAT SINCE THE 1965 AND 1970 ACTS CONTEMPLATED THAT
DISCHARGES MUST MEET MINIMUM WATER QUALITY STANDARDS, AS SET FORTH BY
STATE AGENCIES, IT WOULD BE "FUNDAMENTALLY INCONSISTENT" TO READ ^ 13
AS IMPOSING A BAN ON ALL POLLUTANT DISCHARGES.  461 F.2D, AT 473.  WE
CANNOT AGREE.  THE WATER QUALITY ACTS WERE A CONGRESSIONAL ATTEMPT TO
ENLIST STATE AND LOCAL AID IN A CONCENTRATED WATER POLLUTION CONTROL
AND ABATEMENT PROGRAM.  THE LEGISLATIVE DIRECTIVE OF THOSE STATUTES WAS
THAT STATE AND LOCAL OFFICIALS, WORKING IN COOPERATION WITH FEDERAL
OFFICIALS, ESTABLISH MINIMUM WATER QUALITY STANDARDS AND CREATE
POLLUTION PREVENTION AND ABATEMENT PROGRAMS.  NOTHING IN THE CHARGES
THAT WOULD OTHERWISE BE PROHIBITED BY ^ 13, AND IN EACH CASE CONGRESS
SPECIFICALLY PROVIDED THAT THE NEW STATUTES WERE NOT TO BE CONSTRUED AS
"AFFECTING OR IMPAIRING THE PROVISIONS OF (^ 13 OF THE RIVERS AND
HARBORS ACT OF 1899)."  /20/ 

INDEED, THE WATER QUALITY LEGISLATION EXPRESSLY COMPLEMENTS THE
PROVISIONS OF ^ 13 OF THE 1899 ACT.  SECTION 13, ALTHOUGH AUTHORIZING
THE SECRETARY OF THE ARMY TO PERMIT CERTAIN WATER DEPOSITS, CONTAINS NO
CRITERIA TO BE FOLLOWED BY THE SECRETARY IN ISSUING SUCH PERMITS.  THE
WATER QUALITY LEGISLATION, ON THE OTHER HAND, CALLS FOR THE SETTING OF
MINIMUM WATER QUALITY STANDARDS, AND ONCE SUCH STANDARDS ARE
ESTABLISHED, FEDERAL PERMIT AUTHORITY, SUCH AS THAT VESTED IN THE
SECRETARY OF THE ARMY BY THE SECOND PROVISO TO ^ 13, IS SPECIFICALLY
LIMITED TO THAT EXTENT--I.E., A PERMIT COULD NOT BE GRANTED BY THE
SECRETARY UNLESS THE DISCHARGE MATERIAL MET THE APPLICABLE STANDARDS. 

[[HC669'(ORIGINAL DOCUMENT PAGE 669)'  WATER QUALITY IMPROVEMENT ACT
OF 1970, ^ 103, 84 STAT. 107.  IN ESSENCE, THEREFORE, THE WATER QUALITY
ACTS PLACED A LIMITATION ON THE SECRETARY'S PERMIT AUTHORITY WITHOUT
UNDERMINING THE GENERAL PROHIBITIONS OF ^ 13.  SEE UNITED STATES V.
MAPLEWOOD POULTRY CO., 327 F.SUPP.  686, 688 (ME. 1971); UNITED STATES
V. UNITED STATES STEEL CORP., 328 F.SUPP.  354, 357 (ND IND. 1970);
UNITED STATES V. INTERLAKE STEEL CORP., 297 F.SUPP.  912, 916 (ND ILL.
1969). 

WE, THEREFORE, FIND NOTHING FUNDAMENTALLY INCONSISTENT BETWEEN ^ 13
AND THE SUBSEQUENT FEDERAL ENACTMENTS IN THE WATER QUALITY FIELD. 
"ALMOST AN INSULT TO THE SOPHISTICATED WASTES OF MODERN TECHNOLOGY"
/21/  THAT "(IT SHALL NOT BE LAWFUL" TO DISCHARGE OR DEPOSIT INTO
NAVIGABLE WATERS OF THE UNITED STATES "ANY REFUSE MATTER OF ANY KIND OR
DESCRIPTION WHATEVER"  EXCEPT AS PERMITTED BY THE SECRETARY OF THE
ARMY.  IN ENACTING SUBSEQUENT LEGISLATION IN THE WATER QUALITY FIELD,
CONGRESS TOOK SPECIAL PRECAUTIONS TO PRESERVE THE BROAD PROHIBITIONS OF
^ 13 AND IN NO WAY IMPLIED THAT THOSE PROHIBITIONS WERE OPERATIVE IN NO
WAY IMPLIED THAT THOSE PROHIBITIONS WERE OPERATIVE ONLY UNDER A FORMAL
REGULATORY-PERMIT PROGRAM.  SIMILARLY, NOTHING IN THE LANGUAGE OR
HISTORY OF ^ 13 CONDITIONS ENFORCEMENT OF ITS PROHIBITIONS ON THE
ESTABLISHMENT OF A FORMAL REGULATORY-PERMIT PROGRAM AND, AS WE HAVE
SAID IN THE PAST, "THE HISTORY OF THIS PROVISION AND OF RELATED
LEGISLATION DEALING WITH OUR FREE-FLOWING RIVERS 'FORBIDS A NARROW,
CRAMPED READING' OF ^ 13." 

[[HC670'(ORIGINAL DOCUMENT PAGE 670)' UNITED STATES V. STANDARD OIL
CO., 384 U.S., AT 226; UNITED STATES V. REPUBLIC STEEL CORP. 362 U.S.
482, 491 (1960). 

  II 

WE TURN, THEREFORE, TO THE COURT OF APPEALS' ALTERNATIVE GROUND FOR
REVERSING PICCO'S CONVICTION, NAMELY, THAT IN LIGHT OF THE
LONGSTANDING, OFFICIAL ADMINISTRATIVE CONSTRUCTION OF ^ 13 AS LIMITED
TO THOSE WATER DEPOSITS THAT TEND TO IMPEDE OR OBSTRUCT NAVIGATION,
PICCO MAY HAVE BEEN "AFFIRMATIVELY MISLED" INTO BELIEVING THAT ITS
CONDUCT WAS NOT CRIMINAL.  /22/ WE AGREE WITH THE COURT OF APPEALS THAT
PICCO SHOULD HAVE BEEN PERMITTED TO PRESENT RELEVANT EVIDENCE TO
ESTABLISH THIS DEFENSE. 

AT THE OUTSET, WE OBSERVE THAT THE ISSUE HERE IS NOT WHETHER ^ 13 IN
FACT APPLIES TO WATER DEPOSITS THAT HAVE NO TENDENCY TO AFFECT
NAVIGATION.  FOR, ALTHOUGH THERE WAS MUCH DISPUTE ON THIS QUESTION IN
THE PAST, /23/  IN UNITED STATES V. STANDARD OIL CO., SUPRA, WE HELD
THAT "THE 'SERIOUS INJURY' TO OUR WATERCOURSES . . . SOUGHT TO BE
REMEDIED (BY THE 1899 ACT) WAS CAUSED IN PART BY POLLUTION," AND THAT
THE TERM "REFUSE" AS USED IN ^ 13 "INCLUDES ALL FOREIGN SUBSTANCES AND
POLLUTANTS.  . . ." 

[[HC671'(ORIGINAL DOCUMENT PAGE 671)'  384 U.S., AT 228 - 229, 230. 
/24/  SEE ALSO ILLINOIS V. CITY OF MILWAUKEE, 406 U.S. 91, 101 (1972). 
SINCE THEN, THE LOWER COURTS HAVE ALMOST UNIVERSALLY AGREED, AS DID THE
COURTS BELOW, THAT ^ 13 IS TO BE READ IN ACCORDANCE WITH ITS PLAIN
LANGUAGE AS IMPOSING A FLAT BAN ON THE UNAUTHORIZED DEPOSIT OF FOREIGN
SUBSTANCES INTO NAVIGABLE WATERS, REGARDLESS OF THE EFFECT ON
NAVIGATION.  SEE, E.G., UNITED STATES V. GRANITE STATE PACKING CO., 343
F.SUPP.  57 AFF'D, 470 F.2D 303 (CA1 1972); UNITED STATES V. ESSO
STANDARD OIL CO. OF PUERTO RICO, 375 F.2D 621 (CA3 1967); UNITED STATES
V. CONSOLIDATION COAL CO., 354 F.SUPP.  173 (ND W.VA. 1973); UNITED
STATES V. GENOA COOPERATIVE CREAMERY CO., 336 F.SUPP.  539 (WD WIS.
1972); UNITED STATES V. MAPLEWOOD POULTRY CO., 327 F.SUPP.  686 (ME.
1971); UNITED STATES V. UNITED STATES STEEL CORP., 328 F.SUPP.  354 (ND
IND. 1970); UNITED STATES V. INTERLAKE STEEL CORP., 297 F.SUPP.  912
(ND ILL. 1969); CONTRA, GUTHRIE V. ALABAMA BY-PRODUCTS CO., 328
F.SUPP.  1140 (ND ALA. 1971), AFF'D, 456 F.2D 1294 (CA5 1972). 

[[HC672'(ORIGINAL DOCUMENT PAGE 672)' 

NEVERTHELESS, IT IS UNDISPUTED THAT PRIOR TO DECEMBER 1970 THE ARMY
CORPS OF ENGINEERS CONSISTENTLY CONSTRUED ^ 13 AS LIMITED TO WATER
DEPOSITS THAT AFFECTED NAVIGATION.  THUS, AT THE TIME OF OUR DECISION
IN STANDARD OIL, THE PUBLISHED REGULATION PERTAINING TO ^ 13 READ AS
FOLLOWS: 

     "^ 209.395.  DEPOSIT OF REFUSE.  SECTION 13 OF THE RIVER AND

HARBOR ACT OF MARCH 3, 1899 (30 1152; 33 U.S.C. 407), PROHIBITS

  THE DEPOSIT IN NAVIGABLE WATERS GENERALLY OF 'REFUSE MATTER OF

  ANY KIND OR DESCRIPTION WHATEVER OTHER THAN THAT FLOWING FROM

  STREETS AND SEWERS AND PASSING THEREFROM IN A LIQUID STATE.'  THE

  JURISDICTION OF THE DEPARTMENT OF THE ARMY, DERIVED FROM THE

  FEDERAL LAWS ENACTED FOR THE PROTECTION AND PRESERVATION OF THE

  NAVIGABLE WATERS OF THE UNITED STATES, IS LIMITED AND DIRECTED TO

  SUCH CONTROL AS MAY BE NECESSARY TO PROTECT THE PUBLIC RIGHT OF

NAVIGATION.  ACTION UNDER SECTION 13 HAS THEREFORE BEEN DIRECTED

  BY THE DEPARTMENT PRINCIPALLY AGAINST THE DISCHARGE OF THOSE

  MATERIALS THAT ARE OBSTRUCTIVE OR INJURIOUS TO NAVIGATION."  33

  CFR ^ 209.395 (1967). 

IN DECEMBER 1968, THE CORPS OF ENGINEERS PUBLISHED A COMPLETE
REVISION OF THE REGULATIONS PERTAINING TO NAVIGABLE WATERS.  THE NEW
REGULATIONS PERTAINING TO ^^ 9 AND 10 OF THE RIVERS AND HARBORS ACT OF
1899, DEALING WITH CONSTRUCTION AND EXCAVATION IN NAVIGABLE WATERS,
STATED FOR THE FIRST TIME THAT THE CORPS WOULD CONSIDER POLLUTION AND
OTHER CONSERVATION AND ENVIRONMENTAL FACTORS IN PASSING ON APPLICATIONS
UNDER THOSE SECTIONS FOR PERMITS TO "WORK IN NAVIGABLE WATERS." 

[[HC673'(ORIGINAL DOCUMENT PAGE 673)'  33 CFR ^ 209.120 (D) (1969). 
BUT NOTWITHSTANDING THIS REFERENCE TO ENVIRONMENTAL FACTORS AND IN
SPITE OF OUR INTERVENING DECISION IN STANDARD OIL, THE NEW REGULATION
PERTAINING TO ^ 13 OF THE 1899 ACT CONTINUED TO CONSTRUE THAT PROVISION
AS LIMITED TO WATER DEPOSITS THAT AFFECTED NAVIGATION: 

     "SECTION 13 OF THE RIVER AND HARBOR ACT OF MARCH 3, 1899 (30

  STAT. 1152; 33 U.S.C. 407) AUTHORIZES THE SECRETARY OF THE ARMY

  TO PERMIT THE DEPOSIT OF REFUSE MATTER IN NAVIGABLE WATERS,

  WHENEVER IN THE JUDGMENT OF THE CHIEF OF ENGINEERS ANCHORAGE AND

  NAVIGATION WILL NOT BE INJURED THEREBY, WITHIN LIMITS TO BE

  DEFINED AND UNDER CONDITIONS TO BE PRESCRIBED BY HIM.  ALTHOUGH

  THE DEPARTMENT HAS EXERCISED THIS AUTHORITY FROM TIME TO TIME, IT

  IS CONSIDERED PREFERABLE TO ACT UNDER SECTION 4 OF THE RIVER AND

  HARBOR ACT OF MARCH 3, 1905 (33 STAT. 1147; 33 U.S.C. 419).  AS A

  MEANS OF ASSISTING THE CHIEF OF ENGINEERS IN DETERMINING THE

EFFECT ON ANCHORAGE OF VESSELS, THE VIEWS OF THE U.S. COAST GUARD

  WILL BE SOLICITED BY COORDINATION WITH THE COMMANDER OF THE LOCAL

  COAST GUARD DISTRICT."  33 CFR ^ 209.200 (E) (2) (1969).  /25/ 

AT TRIAL, PICCO OFFERED TO PROVE THAT, IN RELIANCE ON THE
CONSISTENT, LONGSTANDING ADMINISTRATIVE CONSTRUCTION OF ^ 13, THE
DEPOSITS IN QUESTION WERE MADE IN GOOD-FAITH BELIEF THAT THEY WERE
PERMISSIBLE UNDER LAW.  PICCO DOES NOT CONTEND, THEREFORE, THAT IT WAS
IGNORANT OF THE LAW OR THAT THE STATUTE IS IMPERMISSIBLY VAGUE, SEE
CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385 (1926); BOUIE V.
CITY OF COLUMBIA, 378 U.S. 347 (1964), BUT RATHER THAT IT WAS
AFFIRMATIVELY MISLED BY THE RESPONSIBLE ADMINISTRATIVE AGENCY INTO
BELIEVING THAT THE LAW DID NOT APPLY IN THIS SITUATION.  CF. RALEY V.
OHIO, 360 U.S. 423 (1959); COX V. LOUISIANA, 379 U.S. 559 (1965). 

[[HC674'(ORIGINAL DOCUMENT PAGE 674)' 

OF COURSE, THERE CAN BE NO QUESTION THAT PICCO HAD A RIGHT TO LOOK
TO THE CORPS OF ENGINEERS' REGULATIONS FOR GUIDANCE.  THE CORPS IS THE
RESPONSIBLE ADMINISTRATIVE AGENCY UNDER THE 1899 ACT, AND "THE RULINGS,
INTERPRETATIONS AND OPINIONS OF THE (RESPONSIBLE AGENCY) . . . , WHILE
NOT CONTROLLING UPON THE COURTS BY REASON OF THEIR AUTHORITY, DO
CONSTITUTE A BODY OF EXPERIENCE AND INFORMED JUDGMENT TO WHICH . . .
LITIGANTS MAY PROPERLY RESORT FOR GUIDANCE."  SKIDMORE V. SWIFT & CO.,
323 U.S. 134, 140 (1944); MARITIME BOARD V. ISBRANDTSEN CO., 356 U.S.
481, 499 (1958).  MOREOVER, ALTHOUGH THE REGULATIONS DID NOT OF
THEMSELVES PURPORT TO CREATE OR DEFINE THE STATUTORY OFFENSE IN
QUESTION, SEE UNITED STATES V. MERSKY, 361 U.S. 431 (1960), IT IS
CERTAINLY TRUE THAT THEIR DESIGNED PURPOSE WAS TO GUIDE PERSONS AS TO
THE EXTENT THAT THE REGULATIONS DEPRIVED PICCO OF OF FAIR WARNING AS TO
WHAT CONDUCT THE GOVERNMENT INTENDED TO MAKE CRIMINAL, WE THINK THERE
CAN BE NO DOUBT THAT TRADITIONAL NOTIONS OF FAIRNESS INHERENT IN OUR
SYSTEM OF CRIMINAL JUSTICE PREVENT THE GOVERNMENT FROM PROCEEDING WITH
THE PROSECUTION.  SEE NEWMAN, SHOULD OFFICIAL ADVICE BE RELIABLE?-
PROPOSALS AS TO ESTOPPEL AND RELATED DOCTRINES IN ADMINISTRATIVE LAW,
53 CO. L. REV. 374 (1953); NOTE, APPLYING ESTOPPEL PRINCIPLES IN
CRIMINAL CASES, 78 YALE L.J. 1046 (1969). 

THE GOVERNMENT ARGUES, HOWEVER, THAT OUR PRONOUNCEMENT IN STANDARD
OIL PRECLUDES PICCO FROM ASSERTING RELIANCE ON THE CORPS OF ENGINEERS'
REGULATIONS AND THAT, IN ANY EVENT, THE REVISED REGULATION ISSUED IN
1968, WHEN CONSIDERED IN LIGHT OF OTHER PERTINENT FACTORS, /26/  WAS
NOT MISLEADING TO PERSONS IN PICCO'S POSITION. 

[[HC675'(ORIGINAL DOCUMENT PAGE 675)'  BUT WE NEED NOT RESPOND TO
THE GOVERNMENT'S ARGUMENTS HERE, FOR THE SUBSTANCE OF THOSE ARGUMENTS
PERTAINS, NOT TO THE ISSUE OF THE AVAILABILITY OF RELIANCE AS A
DEFENSE, BUT RATHER TO THE ISSUES WHETHER THERE WAS IN FACT RELIANCE
AND, IF SO, WHETHER THAT RELIANCE WAS REASONABLE UNDER THE
CIRCUMSTANCES--ISSUES THAT MUST BE DECIDED IN THE FIRST INSTANCE BY THE
TRIAL COURT.  AT THIS STATE, IT IS SUFFICIENT THAT WE HOLD THAT IT WAS
ERROR FOR THE DISTRICT COURT TO REFUSE TO PERMIT PICCO TO PRESENT
EVIDENCE IN SUPPORT OF ITS CLAIM THAT IT HAD BEEN AFFIRMATIVELY MISLED
INTO BELIEVING THAT THE DISCHARGES IN QUESTION WERE NOT A VIOLATION OF
THE STATUTE.     ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS
MODIFIED TO REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED.     /1/  SECTION 13, 33 U.S.C. ^
407, PROVIDES: 

"IT SHALL NOT BE LAWFUL TO THROW, DISCHARGE, OR DEPOSIT, OR CAUSE,
SUFFER, OR PROCURE TO BE THROWN, DISCHARGED, OR DEPOSITED EITHER FROM
OR OUT OF ANY SHIP, BARGE, OR OTHER FLOATING CRAFT OF ANY KIND, OR FROM
THE SHORE, WHARF, MANUFACTURING ESTABLISHMENT, OR MILL OF ANY KIND, ANY
REFUSE MATTER OF ANY KIND OR DESCRIPTION WHATEVER OTHER OTHER THAN
FLOWING FROM STREETS AND SEWERS AND PASSING THEREFROM IN A LIQUID
STATE, INTO ANY NAVIGABLE WATER OF THE UNITED STATES, OR INTO ANY
TRIBUTARY OF ANY NAVIGABLE WATER FROM WHICH THE SAME SHALL FLOAT OR BE
WASHED INTO SUCH NAVIGABLE WATER; AND IT SHALL NOT BE LAWFUL TO
DEPOSIT, OR CAUSE, SUFFER, OR PROCURE TO BE DEPOSITED MATERIAL OF ANY
KIND IN ANY PLACE ON THE BANK OF ANY NAVIGABLE WATER, OR ON THE BANK OF
ANY TRIBUTARY OF ANY NAVIGABLE WATER, WHERE THE SAME SHALL BE LIABLE TO
BE WASHED INTO SUCH NAVIGABLE WATER, EITHER BY ORDINARY OR HIGH TIDES,
OR BY STORMS OR FLOODS, OR OTHERWISE, WHEREBY NAVIGATION SHALL OR MAY
BE IMPEDED OR OBSTRUCTED:  PROVIDED, THAT NOTHING HEREIN CONTAINED
SHALL EXTEND TO, APPLY TO, OR PROHIBIT THE OPERATIONS IN CONNECTION
WITH THE IMPROVEMENT OF NAVIGABLE WATERS OR CONSTRUCTION OF PUBLIC
WORKS, CONSIDERED NECESSARY AND PROPER BY THE UNITED STATES OFFICERS
SUPERVISING SUCH IMPROVEMENT OR PUBLIC WORK:  AND PROVIDED FURTHER,
THAT THE SECRETARY OF THE ARMY, WHENEVER IN THE JUDGMENT OF THE CHIEF
OF ENGINEERS ANCHORAGE OF ANY MATERIAL ABOVE MENTIONED IN NAVIGABLE
WATERS, WITHIN LIMITS TO BE DEFINED AND UNDER CONDITIONS TO BE
PRESCRIBED BY HIM PROVIDED APPLICATION IS MADE TO HIM PRIOR TO
DEPOSITING SUCH MATERIAL; AND WHENEVER ANY PERMIT IS SO GRANTED THE
CONDITIONS THEREOF SHALL BE STRICTLY COMPLIED WITH, AND ANY VIOLATION
THEREOF SHALL BE UNLAWFUL." 

PROVIDES: 

"EVERY PERSON AND EVERY CORPORATION THAT SHALL VIOLATE, OR THAT
SHALL KNOWINGLY AID, ABET, AUTHORIZE, OR INSTIGATE A VIOLATION OF THE
PROVISIONS OF SECTION 407, 408, AND 409 OF THIS TITLE SHALL BE GUILTY
OF A MISDEMEANOR, AND ON CONVICTION THEREOF SHALL BE PUNISHED BY A FINE
NOT EXCEEDING $2,500 NOR LESS THAN $500, OR BY IMPRISONMENT (IN THE
CASE OF A NATURAL PERSON) FOR NOT LESS THAN THIRTY DAYS NOR MORE THAN
ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT, IN THE DISCRETION OF
THE COURT, ONE-HALF OF SAID FINE TO BE PAID TO THE PERSON OR PERSONS
GIVING INFORMATION WHICH SHALL LEAD TO CONVICTION." 

/2/  A FORMAL PERMIT PROGRAM UNDER ^ 13 WAS ESTABLISHED SUBSEQUENT
TO THE DATES OF THE ALLEGED VIOLATIONS INVOLVED IN THIS CASE.  SEE N.9,
INFRA.  ON OCTOBER 18, 1972 CONGRESS PASSED A COMPREHENSIVE PIECE OF
LEGISLATION PROVIDING FOR NATIONAL WATER QUALITY STANDARDS AND FOR A
FEDERAL PERMIT PROGRAM RELATING TO THE DISCHARGE OF POLLUTANTS INTO
NAVIGABLE WATERS.  FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF
1972, PUB. L. NO. 92 - 500, 86 STAT. 816.  SECTION 402 OF THE 1972 ACT
PROHIBITS FURTHER ISSUANCE OF PERMITS UNDER ^ 13 OF THE RIVERS AND
HARBORS ACT OF 1899 AND DESIGNATES THE ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY AS THE EXCLUSIVE AUTHORITY TO PERMIT
DISCHARGES OF POLLUTANTS INTO NAVIGABLE WATERS. 

/3/  THE REFUSE MATTERS WERE IDENTIFIED AS "IRON, ALUMINUM, AND
COMPOUNDS CONTAINING THESE CHEMICALS, AND CHLORIDES, PHOSPHATES,
SULFATES AND SOLIDS."  APP. 3 

/4/  THE MONOGAHELA RIVER IS A 128-MILE-LONG, NAVIGABLE WATERWAY
THAT FLOWS THROUGH WESTERN PENNSYLVANIA AND NORTHERN WEST VIRGINIA. 

/5/  SECTION 13 IS SOMETIMES REFERRED TO AS THE "REFUSE ACT OF
1899," BUT THAT TERM IS A POST-1970 LABEL NOT USED BY CONGRESS, PAST OR
PRESENT.  MOREOVER, SOME AUTHORS USE THE TERM TO REFER ONLY TO ^ 13,
SEE, E.G., NOTE, THE REFUSE ACT OF 1899: NEW TASKS FOR AN OLD LAW, 22
HASTINGS L.J. 782 (1971), WHILE OTHERS USE IT TO REFER TO THE ENTIRE
RIVERS AND HARBORS ACT OF 1899, SEE, E.G., RODGERS, INDUSTRIAL WATER
POLLUTION AND THE REFUSE ACT:  A SECOND CHANCE FOR WATER QUALITY, 119
U.PA.L.REV.  761, 766 (1971). 

/6/  IT HAS BEEN SUGGESTED THAT SINCE ^ 13 PROHIBITS THE "DISCHARGE,
OR DEPOSIT" OF REFUSE BUT AUTHORIZES THE SECRETARY TO PERMIT ONLY "THE
DEPOSIT" OF REFUSE, IT MAY BE APPROPRIATE TO DISTINGUISH BETWEEN A
"DISCHARGE" AND A "DEPOSIT" AND HOLD THAT ONLY A "DEPOSIT" OF REFUSE
MAY BE PERMITTED BY THE SECRETARY.  HEARINGS BEFORE THE SUBCOMMITTEE ON
THE ENVIRONMENT OF THE SENATE COMMITTEE ON COMMERCE, 92D CONG., 1ST
SESS., 31 (1971).  HOWEVER, WE FIND NO SUPPORT FOR SUCH A DISTINCTION
IN EITHER THE ACT ITSELF OR ITS LEGISLATIVE HISTORY. 

/7/  THE SECRETARY'S AUTHORITY TO ISSUE PERMITS UNDER ^ 13
TERMINATED ON OCTOBER 18, 1972.  SEE N.2, SUPRA. 

/8/  62 STAT. 1155, AS AMENDED, ACT OF JULY 17, 1952, C.927, 66
STAT. 755; WATER POLLUTION CONTROL ACT AMENDMENTS OF 1956, 70 STAT.
498; FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1961, PUB. L. 87
- 88, 75 STAT. 204; WATER QUALITY ACT OF 1965, PUB. L. 89 - 234, 79
STAT. 903; CLEAN WATER RESTORATION ACT OF 1966, PUB. L. 89 - 753, 80
STAT. 1246; WATER QUALITY IMPROVEMENT ACT OF 1970, PUB. L. 91 - 224, 84
STAT. 91. 

/9/  ON DECEMBER 23, 1970, THE PRESIDENT ANNOUNCED THE ESTABLISHMENT
OF A FORMAL ^ 13 PERMIT PROGRAM.  EXECUTIVE ORDER 11574, 35 FED. REG.
19627 (DEC. 25, 1970).  THE CORPS OF ENGINEERS FOLLOWED ON DECEMBER 30,
1970, WITH PROPOSED REGULATIONS.  35 FED. REG. 20005 (DEC. 31, 1970). 
FINAL REGULATIONS IMPLEMENTING THE PRESIDENT'S PROGRAM BECAME EFFECTIVE
APRIL 7, 1971.  33 CFR ^ 209.131 (1972).  THAT PROGRAM, WITH CERTAIN
CHANGES, HAS NOW BECOME PART OF THE NEW PERMIT PROGRAM AUTHORIZED BY ^
402 OF THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972.  SEE
N.2, SUPRA. 

/10/  THIS PART OF THE COURT OF APPEALS' DECISION IS NOT BEFORE US
FOR REVIEW.  SEE BRENNAN V. ARNHEIM & NEELY, 410 U.S. 512, 516 (1973);
NLRB V. INTERNATIONAL VAN LINES, 409 U.S. 48, 52 N.4 (1972). 

/11/  SEE ^ 11 OF THE RIVERS AND HARBORS ACT OF 1899, 33 U.S.C. ^
404, WHICH INSTRUCTS THE SECRETARY OF THE ARMY TO ESTABLISH HARBOR
LINES BEYOND WHICH WORKS MAY NOT BE EXTENDED OR DEPOSITS MADE "EXCEPT
UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED FROM TIME TO TIME BY HIM." 
SEE ALSO ^ 4 OF THE RIVERS AND HARBORS ACT OF 1905, 33 STAT. 1147, 33
U.S.C. ^ 419, AUTHORIZING REGULATIONS REGARDING THE TRANSPORTATION AND
DUMPING OF DREDGING MATERIAL. 

/12/  THIS SECTION OF 1894 ACT, AS WELL AS ^ 6 OF THE 1890 ACT, WERE
MODELED AFTER STATUTES PASSED IN 1888 AND 1886 PERTAINING ONLY TO NEW
YORK HARBOR.  SEE UNITED STATES V. STANDARD OIL CO., 384 U.S. 224, 226
228 (1966). 

/13/  ACT OF JUNE 3, 1896, C. 314, ^ 2, 29 STAT. 234. 

/14/  H.R. DOC. NO. 293, 54TH CONG., 2D SESS. (1897). 

/15/  IBID.  SEE 33 U.S.C. ^ 414. 

/16/  32 CONG. REC. 2297 (1899). 

/17/  IT IS TRUE THAT ^ 6 OF THE 1894 ACT PROHIBITED DISCHARGES AND
DEPOSITS ONLY "ELSEWHERE THAN WITHIN THE LIMITS DEFINED AND PERMITTED
BY THE SECRETARY OF WAR," BUT THAT LANGUAGE DID NOT CONTEMPLATE THE
ESTABLISHMENT OF A FORMAL REGULATORY PROGRAM BY THE SECRETARY.  SECTION
6 OF THE 1890 ACT GRANTED THE SECRETARY DISCRETIONARY AUTHORITY TO
PERMIT NONIMPEDING DISCHARGES AND NOTHING IN THE 1894 ACT PURPORTED TO
CURTAIL THAT EARLIER GRANT OF AUTHORITY TO THE SECRETARY.  THUS, THE
REFERENCE IN THE 1894 PROVISION TO "LIMITS DEFINED AND PERMITTED BY THE
SECRETARY"  REFERS MERELY TO THE SECRETARY'S EXISTING PERMIT AUTHORITY
UNDER THE 1890 PROVISION. 

/18/  INFERENTIALLY, THE COURT OF APPEALS ALSO REFERRED TO ^ 4 OF
THE RIVERS AND HARBORS ACT OF 1905, 33 U.S.C. ^ 419.  SEE 461 F.2D 468,
475 N.7.  BUT THAT PROVISION, WHICH WAS ORIGINALLY PROPOSED AS AN
AMENDMENT TO ^ 13 OF THE 1899 ACT AND CLEARLY CONTEMPLATED THE
ESTABLISHMENT OF A FORMAL REGULATORY PROGRAM BY THE SECRETARY (ALTHOUGH
IT DID NOT REQUIRE THAT SUCH A PROGRAM BE ESTABLISHED), PROVIDES NO
SUPPORT FOR THE COURT OF APPEALS'  INTERPRETATION OF ^ 13.  ON THE
CONTRARY, THE EXISTENCE OF ^ 4 OF THE 1905 ACT TENDS TO CONFIRM THE
CONCLUSION THAT ^ 13 IS NOT CONDITIONED ON THE ESTABLISHMENT OF A
FORMAL REGULATORY PROGRAM.  FOR THE LEGISLATIVE HISTORY OF ^ 4 EXPLAINS
THAT IT WAS DEEMED DESIRABLE TO GIVE THE SECRETARY AUTHORITY TO
PROMULGATE GENERAL PERMISSIVE DUMPING REGULATIONS AS TO SOME BODIES OF
WATER (SUCH AS NEW YORK AND BOSTON HARBORS) BECAUSE A LARGE AMOUNT OF
ILLEGAL DUMPING WAS GOING ON IN THESE WATERS AT NIGHT AND IT WAS
"ALMOST IMPOSSIBLE TO DETECT" THE VIOLATORS, THEREBY MAKING IT
"IMPOSSIBLE TO SECURE CONVICTIONS."  39 CONG. REC. 3078 (1905).  A
FORMAL REGULATORY PROGRAM, IN OTHER WORDS, WAS THE LESSER OF TWO EVILS
AS TO THESE BODIES OF WATER SINCE THERE WERE INSUFFICIENT FACILITIES
AND PERSONNEL TO EFFECTIVELY ENFORCE THE GENERAL PROHIBITIONS OF ^ 13. 
THE IMPLICATION IS CLEAR, HOWEVER, THAT HAD THE PERSONS RESPONSIBLE FOR
THE UNAUTHORIZED DUMPING BEEN DISCOVERED, PROSECUTION FOR VIOLATION OF
^ 13 WOULD HAVE BEEN THE APPROPRIATE REMEDY, EVEN THOUGH THEN, AS AT
THE TIME OF THE PRESENT OFFENSES, THERE EXISTED NO FORMAL REGULATORY
PROGRAM UNDER ^ 13. 

NO EXPLANATION WAS GIVEN BY CONGRESS FOR ITS ULTIMATE DECISION TO
CODIFY ^ 4 OF THE 1905 ACT SEPARATELY RATHER THAN AS AN AMENDMENT TO ^
13.  POSSIBLY, CONGRESS HOPED THAT SUCH REGULATIONS WOULD BE ISSUED
SPARINGLY SO AS NOT TO EVISCERATE THE BROAD ANTIDUMPING PROHIBITIONS OF
^ 13.  IN ANY EVENT, THE SECRETARY'S DISCRETIONARY REGULATORY-PROGRAM
AUTHORITY UNDER ^ 4 OF THE 1905 ACT CERTAINLY CANNOT BE READ INTO ^ 13
AS AN OPERATIVE REQUIREMENT, AND ABSENT ESTABLISHMENT OF A REGULATORY
PROGRAM UNDER ^ 4 OF THE 1905 ACT AS TO A PARTICULAR BODY OF WATER,
PROHIBITIONS OF ^ 13 REMAIN INTACT AND COMPLETELY ENFORCEABLE. 

/19/  THESE STATUTES ARE TO A LARGE EXTENT SUPERSEDED BY THE 1972
AMENDMENTS TO THE WATER POLLUTION CONTROL ACT.  SEE N.2, SUPRA. 

/20/  SEE ^ 11 OF THE WATER POLLUTION CONTROL ACT OF 1948, 62 STAT.
1161, AS AMENDED IN 1956, 70 STAT. 507, AS FURTHER AMENDED BY THE WATER
QUALITY ACT OF 1965, 79 STAT. 903, AND AS FURTHER AMENDED BY THE WATER
QUALITY IMPROVEMENT ACT OF 1970, 84 STAT. 113. 

/21/  RODGERS, INDUSTRIAL WATER POLLUTION AND THE REFUSE ACT:  A
SECOND CHANCE FOR WATER QUALITY, 119 U.PA.L. REV. 761, 766 (1971). 

/22/  IT WAS CONCEDED FOR PURPOSES OF THIS CASE THAT THE REFUSE
MATTER INVOLVED WAS NOT OF A NATURE THAT WOULD IMPEDE OR OBSTRUCT
NAVIGATION.  461 F.2D, AT 478.  SEE ALSO N.3, SUPRA. 

/23/  THE SEEMING AMBIGUITY OF THE LANGUAGE OF ^ 13 AND THE SPARSE
LEGISLATIVE HISTORY OF THAT PROVISION CAUSED THE LOWER COURT TO
DISAGREE OVER THE YEARS AS TO THE PROPER SCOPE OF ^ 13.  THE SECOND
CLAUSE OF ^ 13, WHICH PROHIBITS THE DEPOSIT OF REFUSE ON THE "BANK" OF
ANY NAVIGABLE WATER OR TRIBUTARY WHERE SUCH REFUSE MAY BE WASHED INTO
THE WATER, IS EXPRESSLY LIMITED TO DEPOSITS THAT SHALL OR MAY IMPEDE OR
OBSTRUCT NAVIGATION.  THE FIRST CLAUSE OF ^ 13, HOWEVER, WHICH IS SET
OFF FROM THE SECOND CLAUSE BY A SEMICOLON, CONTAINS NO LANGUAGE OF ITS
OWN LIMITING ITS PROHIBITION TO NAVIGATION-IMPEDING DEPOSITS. 
SIMILARLY, IN REGARD TO THE TWO PREDECESSOR STATUTES OF ^ 13, ^ 6 OF
THE 1890 ACT WAS EXPRESSLY LIMITED TO NAVIGATION-IMPEDING DEPOSITS, BUT
^ 6 OF THE 1894 ACT WAS NOT.  AND THE LEGISLATIVE HISTORY OF ^ 13 AND
ITS PREDECESSOR STATUTES IS HARDLY CONCLUSIVE ON THIS ISSUE.  BUT SEE
COMMENT, DISCHARGING NEW WINE INTO OLD WINESKINS:  THE METAMORPHOSIS OF
THE RIVERS AND HARBORS ACT OF 1899, 33 U.PITT.L. REV. 483 (1972). 

SEE AS CONSTRUING ^ 13 TO BE APPLICABLE TO ALL WATER DEPOSITS
REGARDLESS OF THEIR TENDENCY TO OBSTRUCT OR IMPEDE NAVIGATION, LA
MERCED, 84 F.2D 444 (CA9 1936); THE PRESIDENT COOLIDGE, 101 F.2D 638
(CA9 1939); UNITED STATES V. BALLARD OIL CO. OF HARTFORD, 195 F.2D 369
(CA2 1952).  SEE AS CONSTRUING ^ 13 TO BE APPLICABLE ONLY TO NAVIGATION
IMPEDING DEPOSITS, UNITED STATES V. CROUCH (1922) (UNREPORTED, SEE
UNITED STATES V. STANDARD OIL CO., 384 U.S. AT 229 N.5); WARNER-QUINLAN
CO. V. UNITED STATES, 273 F. 503 (CA3 1921); NICROLI V. DEN NORSKI
AFRIKA-OG AUSTRALIELINIE, 332 F.2D 651 (CA2 1964). 

/24/  STANDARD OIL INVOLVED AN ACCIDENTAL DISCHARGE OF AVIATION
GASOLINE INTO NAVIGABLE WATERS.  THE DISTRICT COURT HAD MADE THE
FINDING THAT THE GASOLINE "WAS NOT SUCH AS TO IMPEDE NAVIGATION." 
UNITED STATES V. STANDARD OIL CO., NO. 291, O.P. 1965, APP. 8 - 11. 

/25/  SECTION 4 OF THE RIVERS AND HARBORS ACT OF 1905 AUTHORIZES THE
SECRETARY OF THE ARMY TO PRESCRIBE REGULATIONS TO GOVERN THE
TRANSPORTATION AND DUMPING INTO NAVIGABLE WATERS OF DREDGINGS, EARTH,
GARBAGE, AND OTHER REFUSE MATTER WHENEVER IN HIS JUDGMENT SUCH
REGULATIONS ARE REQUIRED "IN THE INTEREST OF NAVIGATION."  33 U.S.C. ^
419.  THUS, THE REFERENCE TO THAT PROVISION IN THE CORPS' REVISED
REGULATION DID NOT SIGNIFY A CHANGE IN THE CORPS' CONSTRUCTION OF ^
13. 

/26/  THE OTHER FACTORS THAT THE GOVERNMENT ARGUES MUST BE TAKEN
INTO CONSIDERATION ARE POST-1968 REGULATIONS ISSUED WITH RESPECT TO
OTHER SECTIONS OF THE 1899 ACT AND WITH RESPECT TO OTHER ACTS, AND
CERTAIN CORPS OF ENGINEERS PRESS RELEASES AND PERIODIC PUBLICATIONS. 
BRIEF FOR UNITED STATES 35 - 38.     [[DOP 

THE CHIEF JUSTICE, MR. JUSTICE STEWART, AND MR. JUSTICE POWELL
DISSENT IN PART, BECAUSE THEY AGREE WITH THE COURT OF APPEALS THAT THE
RESPONDENT ON REMAND SHOULD ALSO BE GIVEN THE OPPORTUNITY TO PROVE THE
NON-EXISTENCE OF A PERMIT PROGRAM AT THE TIME OF THE ALLEGED OFFENSES. 

MR. JUSTICE BLACKMUN AND MR. JUSTICE REHNQUIST AGREE WITH PART I,
BUT BELIEVING THAT THE COURT'S OPINION AND JUDGMENT IN UNITED STATES V.
STANDARD OIL CO., 384 U.S. 224 (1966), MAKE ABSOLUTELY CLEAR THE
MEANING AND REACH OF ^ 13 WITH RESPECT TO PICCO'S INDUSTRIAL DISCHARGE
INTO THE MONONGAHELA RIVER; THAT SUBSEQUENT RELIANCE UPON ANY CONTRARY
ADMINISTRATIVE ATTITUDE ON THE PART OF THE CORPS OF ENGINEERS, EXPRESS
OR BY IMPLICATION, IS UNWARRANTED; AND THAT THE DISTRICT COURT WAS
CORRECT IN REJECTING PICCO'S OFFER OF PROOF OF RELIANCE AS IRRELEVANT,
WOULD REVERSE THE COURT OF APPEALS WITH DIRECTIONS TO REINSTATE THE
JUDGMENT OF CONVICTION. 

[[HC676'(ORIGINAL DOCUMENT PAGE 676)' 

WILLIAM BRADFORD REYNOLDS ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL FRIZZELL, DEPUTY ASSISTANT ATTORNEY GENERAL KIECHEL,
RAYMOND N. ZAGONE, AND JAMES R. MOORE. 

HAROLD GONDELMAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS HERBERT B. SACHS. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY MILTON A.
SMITH AND HENRY L. PITTS FOR THE CHAMBER OF COMMERCE OF THE UNITED
STATES; BY DAVID MCNEIL OLDS AND WILLIAM FOSTER FOR THE UNITED STATES
STEEL CORP. ET AL.; AND BY JUDD N. POFFINBERGER, JR., FOR JONES &
LAUGHLIN STEEL CORP.
..END :


















FRONTIERO ET VIR V. RICHARDSON, SECRETARY OF DEFENSE, ET AL., 411
U.S. 677 



       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF ALABAMA 

     NO 71 - 1694.  ARGUED JANUARY 17, 1973--DECIDED MAY 14, 1973;
341 F.SUPP.  201, REVERSED. 


    A MARRIED WOMAN AIR FORCE OFFICER (HEREAFTER APPELLANT) SOUGHT

  INCREASED BENEFITS FOR HER HUSBAND AS A "DEPENDENT" UNDER 37

  U.S.C. ^^ 401, 403, AND 10 U.S.C. ^^ 1072, 1076.  THOSE STATUTES

  PROVIDE, SOLELY FOR ADMINISTRATIVE CONVENIENCE THAT SPOUSES OF

  MALE MEMBERS OF THE UNIFORMED SERVICES ARE DEPENDENTS FOR

  PURPOSES OF OBTAINING INCREASED QUARTERS ALLOWANCE AND MEDICAL

  AND DENTAL BENEFITS, BUT THAT SPOUSES OF FEMALE MEMBERS ARE NOT

  DEPENDENTS UNLESS THEY ARE IN FACT DEPENDENT FOR OVER ONE-HALF OF

THEIR SUPPORT.  WHEN HER APPLICATION WAS DENIED FOR FAILURE TO

  SATISFY THE STATUTORY DEPENDENCY STANDARD, APPELLANT AND HER

  HUSBAND BROUGHT THIS SUIT IN DISTRICT COURT, CONTENDING THAT THE

  STATUTES DEPRIVED SERVICEWOMEN OF DUE PROCESS.  FROM THAT COURT'S

  ADVERSE RULING, THEY TOOK A DIRECT APPEAL.  HELD:  THE JUDGMENT

  IS REVERSED.  PP. 682 - 691; 691 - 692. 

      MR. JUSTICE BRENNAN, JOINED BY MR. JUSTICE DOUGLAS, MR.
JUSTICE

  WHITE, AND MR. JUSTICE MARSHALL, CONCLUDED THAT 37 U.S.C. ^^ 401,

  403 AND 10 U.S.C. ^^ 1072, 1076, AS INHERENTLY SUSPECT STATUTORY

  CLASSIFICATIONS BASED ON SEX, ARE SO UNJUSTIFIABLY DISCRIMINATORY

  AS TO VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  PP.

  682 - 691. 

     MR. JUSTICE STEWART CONCLUDED THAT THE CHALLENGED STATUTES
WORK

  AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE CONSTITUTION. 

  REED V. REED, 404 U.S. 71.  P. 691. 

     MR. JUSTICE POWELL, JOINED BY THE CHIEF JUSTICE AND MR.
JUSTICE

  BLACKMUN, WHILE AGREEING THAT THE STATUTES DEPRIVE SERVICEWOMEN

  OF DUE PROCESS, CONCLUDED THAT IN THE LIGHT OF REED V. REED, 404

  U.S. 71, AND THE FACT THAT THE EQUAL RIGHTS AMENDMENT HAS BEEN

  SUBMITTED TO THE STATES FOR RATIFICATION, IT IS INAPPROPRIATE TO

  DECIDE AT THIS TIME WHETHER SEX IS A SUSPECT CLASSIFICATION.  PP.

691 - 692. 

[[HC678'(ORIGINAL DOCUMENT PAGE 678)' 

 BRENNAN, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN

  OPINION, IN WHICH DOUGLAS, WHITE, AND MARSHALL, JJ., JOINED

  STEWARD, J., FILED STATEMENT CONCURRING IN THE JUDGMENT, POST, P.

  691.  POWELL, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN

  WHICH BURGER, C.J., AND BLACKMUN, J., JOINED, POST, P. 691. 

  REHNQUIST, J., FILED A DISSENTING STATEMENT, POST, P. 691. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, AND MR.
JUSTICE MARSHALL JOIN. 

THE QUESTION BEFORE US CONCERNS THE RIGHT OF A FEMALE MEMBER OF THE
UNIFORMED SERVICES /1/  TO CLAIM HER SPOUSE AS A "DEPENDENT" FOR THE
PURPOSES OF OBTAINING INCREASED QUARTERS ALLOWANCES AND MEDICAL AND
DENTAL BENEFITS UNDER 37 U.S.C. ^^ 401, 403, AND 10 U.S.C. ^^ 1072,
1076, ON AN EQUAL FOOTING WITH MALE MEMBERS.  UNDER THESE STATUTES, A
SERVICEMAN MAY CLAIM HIS WIFE AS A "DEPENDENT" WITHOUT REGARD TO
WHETHER SHE IS IN FACT DEPENDENT UPON HIM FOR ANY PART OF HER SUPPORT. 
37 U.S.C. SEC. 401(1); 10 U.S.C. SEC. 1072(2)(A).  A SERVICEWOMEN, ON
THE OTHER HAND, MAY NOT CLAIM HER HUSBAND AS A "DEPENDENT" UNDER THESE
PROGRAMS UNLESS HE IS IN FACT DEPENDENT UPON HER FOR OVER ONE-HALF OF
HIS SUPPORT. 

[[HC679'(ORIGINAL DOCUMENT PAGE 679)'  37 U.S.C. ^ 401; 10 U.S.C. ^
1072 (2) (C).  /2/  THUS, THE QUESTION FOR DECISION IS WHETHER THIS
DIFFERENCE IN TREATMENT CONSTITUTES AN UNCONSTITUTIONAL DISCRIMINATION
AGAINST SERVICEWOMEN IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT.  A THREE-JUDGE DISTRICT COURT FOR THE MIDDLE DISTRICT
OF ALABAMA, ONE JUDGE DISSENTING, REJECTED THIS CONTENTION AND
SUSTAINED THE CONSTITUTIONALITY OF THE PROVISIONS OF THE STATUTES
MAKING THIS DISTINCTION.  341 F.SUPP.  201 (1972).  WE NOTED PROBABLE
JURISDICTION.  409 U.S. 840 (1972).  WE REVERSE. 

        I 

IN AN EFFORT TO ATTRACT CAREER PERSONNEL THROUGH REENLISTMENT,
CONGRESS ESTABLISHED, IN 37 U.S.C. ^ 401 ET SEQ., AND 10 U.S.C. ^ 1071
ET SEQ., A SCHEME FOR THE PROVISION OF FRINGE BENEFITS TO MEMBERS OF
THE UNIFORMED SERVICES ON A COMPETITIVE BASIS WITH BUSINESS AND
INDUSTRY.  /3/  THUS, UNDER 37 U.S.C. ^ 403, A MEMBER OF THE UNIFORMED
SERVICES WITH DEPENDENTS IS ENTITLED TO AN INCREASED "BASIC ALLOWANCE
FOR QUARTERS" AND, UNDER 10 U.S.C. ^ 1076, A MEMBER'S DEPENDENTS ARE
PROVIDED COMPREHENSIVE MEDICAL AND DENTAL CARE. 

[[HC680'(ORIGINAL DOCUMENT PAGE 680)' 

APPELLANT SHARRON FRONTIERO, A LIEUTENANT IN THE UNITED STATES AIR
FORCE, SOUGHT INCREASED QUARTERS ALLOWANCES, AND HOUSING AND MEDICAL
BENEFITS FOR HER HUSBAND, APPELLANT JOSEPH FRONTIERO, ON THE GROUND
THAT HE WAS HER "DEPENDENT."  ALTHOUGH SUCH BENEFITS WOULD
AUTOMATICALLY HAVE BEEN GRANTED WITH RESPECT TO THE WIFE OF A MALE
MEMBER OF THE UNIFORMED SERVICES, APPELLANT'S APPLICATION WAS DENIED
BECAUSE SHE FAILED TO DEMONSTRATE THAT HER HUSBAND WAS DEPENDENT ON HER
FOR MORE THAN ONE-HALF OF HIS SUPPORT.  /4/  APPELLANTS THEN COMMENCED
THIS SUIT, CONTENDING THAT, BY MAKING THIS DISTINCTION, THE STATUTES
UNREASONABLY DISCRIMINATE ON THE BASIS OF SEX IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  /5/  IN ESSENCE, APPELLANTS
ASSERTED THAT THE DISCRIMINATORY IMPACT OF THE STATUTES IS TWOFOLD:
FIRST, AS A PROCEDURAL MATTER, A FEMALE MEMBER IS REQUIRED TO
DEMONSTRATE HER SPOUSE'S DEPENDENCY, WHILE NO SUCH BURDEN IS IMPOSED
UPON MALE MEMBERS; AND, SECOND, AS A SUBSTANTIVE MATTER, A MALE MEMBER
WHO DOES NOT PROVIDE MORE THAN ONE-HALF OF HIS WIFE'S SUPPORT RECEIVES
BENEFITS, WHILE A SIMILARLY SITUATED FEMALE MEMBER IS DENIED SUCH
BENEFITS.  APPELLANTS THEREFORE SOUGHT A PERMANENT INJUNCTION AGAINST
THE CONTINUED ENFORCEMENT OF THESE STATUTES AND AN ORDER DIRECTING THE
APPELLEES TO PROVIDE LIEUTENANT FRONTIERO WITH THE SAME HOUSING AND
MEDICAL BENEFITS THAT A SIMILARLY SITUATED MALE MEMBER WOULD RECEIVE. 

[[HC681'(ORIGINAL DOCUMENT PAGE 681)' 

ALTHOUGH THE LEGISLATIVE HISTORY OF THESE STATUTES SHEDS VIRTUALLY
NO LIGHT ON THE PURPOSES UNDERLYING THE DIFFERENTIAL TREATMENT ACCORDED
MALE AND FEMALE MEMBERS, /6/  A MAJORITY OF THE THREE-JUDGE DISTRICT
COURT SURMISED THAT CONGRESS MIGHT REASONABLY HAVE CONCLUDED THAT,
SINCE THE HUSBAND IN OUR SOCIETY IS GENERALLY THE "BREADWINNER" IN THE
FAMILY--AND THE WIFE TYPICALLY THE "DEPENDENT" PARTNER--"IT WOULD BE
MORE ECONOMICAL TO REQUIRE MARRIED FEMALE MEMBERS CLAIMING HUSBANDS TO
PROVE ACTUAL DEPENDENCY THAN TO EXTEND THE PRESUMPTION OF DEPENDENCY TO
SUCH MEMBERS."  341 F.SUPP., AT 207.  INDEED, GIVEN THE FACT THAT
APPROXIMATELY 99% OF ALL MEMBERS OF THE UNIFORMED SERVICES ARE MALE,
THE DISTRICT COURT SPECULATED THAT SUCH DIFFERENTIAL TREATMENT MIGHT
CONCEIVABLY LEAD TO A "CONSIDERABLE SAVING OF ADMINISTRATIVE EXPENSE
AND MANPOWER."  IBID. 

[[HC682'(ORIGINAL DOCUMENT PAGE 682)'

        II 

AT THE OUTSET, APPELLANTS CONTEND THAT CLASSIFICATIONS BASED UPON
SEX, LIKE CLASSIFICATIONS BASED UPON RACE, /7/  ALIENAGE, /8/  AND
NATIONAL ORIGIN, /9/  ARE INHERENTLY SUSPECT AND MUST THEREFORE BE
SUBJECTED TO CLOSE JUDICIAL SCRUTINY.  WE AGREE AND, INDEED, FIND AT
LEAST IMPLICIT SUPPORT FOR SUCH AN APPROACH IN OUR UNANIMOUS DECISION
ONLY LAST TERM IN REED V. REED, 404 U.S. 71 (1971). 

IN REED, THE COURT CONSIDERED THE CONSTITUTIONALITY OF AN IDAHO
STATUTE PROVIDING THAT, WHEN TWO INDIVIDUALS ARE OTHERWISE EQUALLY
ENTITLED TO APPOINTMENT AS ADMINISTRATOR OF AN ESTATE, THE MALE
APPLICANT MUST BE PREFERRED TO THE FEMALE.  APPELLANT, THE MOTHER OF
THE DECEASED, AND APPELLEE, THE FATHER, FILED COMPETING PETITION FOR
APPOINTMENT AS ADMINISTRATOR OF THEIR SON'S ESTATE.  SINCE THE PARTIES,
AS PARENTS OF THE DECEASED, WERE MEMBERS OF THE SAME ENTITLEMENT CLASS,
THE STATUTORY PREFERENCE WAS INVOKED AND THE FATHER'S PETITION WAS
THEREFORE GRANTED.  APPELLANT CLAIMED THAT THIS STATUTE, BY GIVING A
MANDATORY PREFERENCE TO MALES OVER FEMALES WITHOUT REGARD TO THEIR
INDIVIDUAL QUALIFICATIONS, VIOLATED THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT. 

THE COURT NOTED THAT THE IDAHO STATUTE "PROVIDES THAT DIFFERENT
TREATMENT BE ACCORDED TO THE APPLICANTS ON THE BASIS OF THEIR SEX; IT
THUS ESTABLISHES A CLASSIFICATION SUBJECT TO SCRUTINY UNDER THE EQUAL
PROTECTION CLAUSE." 

[[HC683'(ORIGINAL DOCUMENT PAGE 683)'  404 U.S., AT 75.  UNDER
"TRADITIONAL" EQUAL PROTECTION ANALYSIS, A LEGISLATIVE CLASSIFICATION
MUST BE SUSTAINED UNLESS IT IS "PATENTLY ARBITRARY" AND BEARS NO
RATIONAL RELATIONSHIP TO A LEGITIMATE GOVERNMENTAL INTEREST.  SEE
JEFFERSON V. HACKNEY, 406 U.S. 535, 546 (1972); RICHARDSON V. BELCHER,
404 U.S. 78, 81 (1971); FLEMMING V. NESTOR, 363 U.S. 603, 611 (1960);
MCGOWAN V. MARYLAND, 366 U.S. 420, 426 (1961); DANDRIDGE V. WILLIAMS,
397 U.S. 471, 485 (1970). 

IN AN EFFORT TO MEET THIS STANDARD, APPELLEE CONTENDED THAT THE
STATUTORY SCHEME WAS A REASONABLE MEASURE DESIGNED TO REDUCE THE
WORKLOAD ON PROBATE COURTS BY ELIMINATING ONE CLASS OF CONTESTS. 
MOREOVER, APPELLEE ARGUED THAT THE MANDATORY PREFERENCE FOR MALE
APPLICANTS WAS IN ITSELF REASONALBE SINCE "MEN (ARE) AS A RULE MORE
CONVERSANT WITH BUSINESS AFFAIRS THAN . . . WOMEN."  /10/  INDEED,
APPELLEE MAINTAINED THAT "IT IS A MATTER OF COMMON KNOWLEDGE, THAT
WOMEN STILL ARE NOT ENGAGED IN POLITICS, THE PROFESSIONS, BUSINESS OR
INDUSTRY TO THE EXTENT THAT MEN ARE."  /11/  AND THE IDAHO SUPREME
COURT, IN UPHOLDING THE CONSTITUTIONALITY OF THIS STATUTE, SUGGESTED
THAT THE IDAHO LEGISLATURE MIGHT REASONABLY HAVE "CONCLUDED THAT IN
GENERAL MEN ARE BETTER QUALIFIED TO ACT AS AN ADMINISTRATOR THAN ARE
WOMEN."  /12/ 

DESPITE THESE CONTENTIONS, HOWEVER, THE COURT HELD THE STATUTORY
PREFERENCE FOR MALE APPLICANTS UNCONSTITUTIONAL.  IN REACHING THIS
RESULT, THE COURT IMPLICITLY REJECTED APPELLEE'S APPARENTLY RATIONAL
EXPLANATION OF THE STATUTORY SCHEME, AND CONCLUDED THAT, BY IGNORING
THE INDIVIDUAL QUALIFICATIONS OF PARTICULAR APPLICANTS, THE CHALLENGED
STATUTE PROVIDED "DISSIMILAR TREATMENT FOR MEN AND WOMEN WHO ARE . . .
SIMILARLY SITUATED."  REED V. REED, SUPRA, AT 77. 

[[HC684'(ORIGINAL DOCUMENT PAGE 684)'  THE COURT THEREFORE HELD
THAT, EVEN THOUGH THE STATE'S INTEREST IN ACHIEVING ADMINISTRATIVE
EFFICIENCY "IS NOT WITHOUT SOME LEGITIMACY," "(TO GIVE A MANDATORY
PREFERENCE TO MEMBERS OF EITHER SEX OVER MEMBERS OF THE OTHER, MERELY
TO ACCOMPLISH THE ELIMINATION OF HEARINGS ON THE MERITS, IS TO MAKE THE
VERY KIND OF ARBITRARY LEGISLATIVE CHOICE FORBIDDEN BY THE
(CONSTITUTION).  . . ."  ID., AT 76.  THIS DEPARTURE FROM "TRADITIONAL"
RATIONAL-BASIS ANALYSIS WITH RESPECT TO SEX-BASED CLASSIFICATIONS IS
CLEARLY JUSTIFIED. 

THERE CAN BE NO DOUBT THAT OUR NATION HAS HAD A LONG AND UNFORTUNATE
HISTORY OF SEX DISCRIMINATION.  /13/  TRADITIONALLY, SUCH
DISCRIMINATION WAS RATIONALIZED BY AN ATTITUDE OF "ROMANTIC
PATERNALISM" WHICH, IN PRACTICAL EFFECT, PUT WOMEN, NOT ON A PEDESTAL,
BUT IN A CAGE.  INDEED, THIS PATERNALISTIC ATTITUDE BECAME SO FIRMLY
ROOTED IN OUR NATIONAL CONSCIOUSNESS THAT, 100 YEARS AGO, A
DISTINGUISHED MEMBER OF THIS COURT WAS ABLE TO PROCLAIM: 

"MAN IS, OR SHOULD BE, WOMAN'S PROTECTOR AND DEFENDER.  THE NATURAL
AND PROPER TIMIDITY AND DELICACY WHICH BELONGS TO THE FEMALE SEX
EVIDENTLY UNFITS IT FOR MANY OF THE OCCUPATIONS OF CIVIL LIFE.  THE
CONSTITUTION OF THE FAMILY ORGANIZATION, WHICH IS FOUNDED IN THE DIVINE
ORDINANCE, AS WELL AS IN THE NATURE OF THINGS, INDICATES THE DOMESTIC
SPHERE AS THAT WHICH PROPERLY BELONGS TO THE DOMAIN AND FUNCTIONS OF
WOMANHOOD.  THE HARMONY, NOT TO SAY IDENTITY, OF INTERESTS AND VIEWS
WHICH BELONG, OR SHOULD BELONG, TO THE FAMILY INSTITUTION IS REPUGNANT
TO THE IDEA OF A WOMAN ADOPTING A DISTINCT AND INDEPENDENT CAREER FROM
THAT OF HER HUSBAND.  . . . 

    ". . . THE PARAMOUNT DESTINY AND MISSION OF WOMAN ARE TO FULFIL

  THE NOBLE AND BENIGN OFFICES OF WIFE AND MOTHER.  THIS IS THE LAW

  OF THE CREATOR."  BRADWELL V. STATE, 16 WALL.  130, 141 (1873)

  (BRADLEY, J., CONCURRING). 

[[HC685'(ORIGINAL DOCUMENT PAGE 685)' 

AS A RESULT OF NOTIONS SUCH AS THESE, OUR STATUTE BOOKS GRADUALLY
BECAME LADEN WITH GROSS, STEREOTYPED DISTINCTIONS BETWEEN THE SEXES
AND, INDEED, THROUGHOUT MUCH OF THE 19TH CENTURY THE POSITION OF WOMEN
IN OUR SOCIETY WAS, IN MANY RESPECTS, COMPARABLE TO THAT OF BLACKS
UNDER THE PRE-CIVIL WAR SLAVES CODES.  NEITHER SLAVES NOR WOMEN COULD
HOLD OFFICE, SERVE ON JURIES, OR BRING SUIT IN THEIR OWN NAMES, AND
MARRIED WOMEN TRADITIONALLY WERE DENIED THE LEGAL CAPACITY TO HOLD OR
CONVEY PROPERTY OR TO SERVE AS LEGAL GUARDIANS OF THEIR OWN CHILDREN. 
SEE GENERALLY L. KANOWITZ, WOMEN AND THE LAW:  THE UNFINISHED
REVOLUTION 5 - 6 (1969); G. MYRDAL, AN AMERICAN DILEMMA 1073 (20TH
ANNIVERSARY ED. 1962).  AND ALTHOUGH BLACKS WERE GUARANTEED THE RIGHT
TO VOTE IN 1870, WOMEN WERE DENIED EVEN THAT RIGHT--WHICH IS ITSELF
"PRESERVATIVE OF OTHER BASIC CIVIL AND POLITICAL RIGHTS"  /14/  --UNTIL
ADOPTION OF THE NINETEENTH AMENDMENT HALF A CENTURY LATER. 

IT IS TRUE, OF COURSE, THAT THE POSITION OF WOMEN IN AMERICA HAS
IMPROVED MARKEDLY IN RECENT DECADES.  /15/ 

[[HC686'(ORIGINAL DOCUMENT PAGE 686)'  NEVERTHELESS, IT CAN HARDLY
BE DOUBTED THAT, IN PART BECAUSE OF THE HIGH VISIBILITY OF THE SEX
CHARACTERISTIC, /14/  WOMEN STILL FACE PERVASIVE, ALTHOUGH AT TIMES
MORE SUBTLE, DISCRIMINATION IN OUR EDUCATIONAL INSTITUTIONS, IN THE JOB
MARKET AND PERHAPS MOST CONSPICUOUSLY, IN THE POLITICAL ARENA.  /17/
SEE GENERALLY K. AMUNDSEN, THE SILENCES MAJORITY:  WOMEN AND AMERICAN
DEMOCRACY (1971); THE PRESIDENT'S TASK FORCE ON WOMEN'S RIGHTS AND
RESPONSIBILITIES, A MATTER OF SIMPLE JUSTICE (1970). 

MOREOVER, SINCE SEX, LIKE RACE AND NATIONAL ORIGIN, IS AN IMMUTABLE
CHARACTERISTIC DETERMINED SOLELY BY THE ACCIDENT OF BIRTH, THE
IMPOSITION OF SPECIAL DISABILITIES UPON THE MEMBERS OF A PARTICULAR SEX
BECAUSE OF THEIR SEX WOULD SEEM TO VIOLATE "THE BASIC CONCEPT OF OUR
SYSTEM THAT LEGAL BURDENS SHOULD BEAR SOME RELATIONSHIP TO INDIVIDUAL
RESPONSIBILITY.  . . ."  WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S.
164, 175 (1972).  AND WHAT DIFFERENTIATES SEX FROM SUCH NONSUSPECT
STATUTES AS INTELLIGENCE OR PHYSICAL DISABILITY, AND ALIGNS IT WITH THE
RECOGNIZED SUSPECT CRITERIA, IS THAT THE SEX CHARACTERISTIC FREQUENTLY
BEARS NO RELATION TO ABILITY TO PERFORM OR CONTRIBUTE TO SOCIETY.  /18/
AS A RESULT, STATUTORY DISTINCTIONS BETWEEN THE SEXES OFTEN HAVE THE
EFFECT OF INVIDIOUSLY RELEGATING THE ENTIRE CLASS OF FEMALES TO
INFERIOR LEGAL STATUS WITHOUT REGARD TO THE ACTUAL CAPABILITES OF ITS
INDIVIDUAL MEMBERS. 

[[HC687'(ORIGINAL DOCUMENT PAGE 687)' 

WE MIGHT ALSO NOTE THAT, OVER THE PAST DECADE, CONGRESS HAS ITSELF
MANIFESTED AN INCREASING SENSITIVITY TO SEX-BASED CLASSIFICATIONS.  IN
TIT. VII OF THE CIVIL RIGHTS ACT OF 1964, FOR EXAMPLE, CONGRESS
EXPRESSLY DECLARED THAT NO EMPLOYER, LABOR UNION, OR OTHER ORGANIZATION
SUBJECT TO THE PROVISIONS OF THE ACT SHALL DISCRIMINATE AGAINST ANY
INDIVIDUAL ON THE BASIS OF "RACE, COLOR, RELIGION, SEX, OR NATIONAL
ORIGIAN."  /19/  SIMILARLY, THE EQUAL PAY ACT OF 1963 PROVIDES THAT NO
EMPLOYER COVERED BY THE ACT "SHALL DISCRIMINATE . . . BETWEEN EMPLOYEES
ON THE BASIS OF SEX."  /20/  AND ^ 1 OF THE EQUAL RIGHTS AMENDMENT,
PASSED BY CONGRESS ON MARCH 22, 1972, AND SUBMITTED TO THE LEGISLATURES
OF THE STATES FOR RATIFICATION, DECLARES THAT "(EQUALITY OF RIGHTS
UNDER THE LAW SHALL NOT BE DENIED OR ABRIDGED BY THE UNITED STATES OR
BY ANY STATE ON ACCOUNT OF SEX."  /21/  THUS, CONGRESS ITSELF HAS
CONCLUDED THAT CLASSIFICATIONS BASED UPON SEX ARE INHERENTLY INVIDIOUS,
AND THIS CONCLUSION OF A COEQUAL BRANCH OF GOVERNMENT IS NOT WITHOUT
SIGNIFICANCE TO THE QUESTION PRESENTLY UNDER CONSIDERATION. 
[[HC688'(ORIGINAL DOCUMENT PAGE 688)'  CF. OREGON V. MITCHELL, 400 U.S.
112, 240, 248 - 249 (1970) (OPINION OF BRENNAN, WHITE, AND MARSHALL,
JJ.); KATZENBACH V. MORGAN, 384 U.S. 641, 648 - 649 (1966). 

WITH THESE CONSIDERATIONS IN MIND, WE CAN ONLY CONCLUDE THAT
CLASSIFICATIONS BASED UPON SEX, LIKE CLASSIFICATIONS BASED UPON RACE,
ALIENAGE, OR NATIONAL ORIGIN, ARE INHERENTLY SUSPECT, AND MUST
THEREFORE BE SUBJECTED TO STRICT JUDICIAL SCRUTINY.  APPLYING THE
ANALYSIS MANDATED BY THAT STRICTER STANDARD OF REVIEW, IT IS CLEAR THAT
THE STATUTORY SCHEME NOW BEFORE US IS CONSTITUTIONALLY INVALID. 

        III 

THE SOLE BASIS OF THE CLASSIFICATION ESTABLISHED IN THE CHALLENGED
STATUTES IS THE SEX OF THE INDIVIDUALS INVOLVED.  THUS, UNDER 37 U.S.C.
^^ 401, 403, AND 10 U.S.C. ^^ 1072, 1076, A FEMALE MEMBER OF THE
UNIFORMED SERVICES SEEKING TO OBTAIN HOUSING AND MEDICAL BENEFITS FOR
HER SPOUSE MUST PROVE HIS DEPENDENCY IN FACT, WHEREAS NO SUCH BURDEN IS
IMPOSED UPON MALE MEMBERS.  IN ADDITION, THE STATUTES OPERATE SO AS TO
DENY BENEFITS TO A FEMALE MEMBER, SUCH AS APPELLANT SHARRON FRONTIERO,
WHO PROVIDES LESS THAN ONE-HALF OF HER SPOUSE'S SUPPORT, WHILE AT THE
SAME TIME GRANTING SUCH BENEFITS TO A MALE MEMBER WHO LIKEWISE PROVIDES
LESS THAN ONE-HALF OF HIS SPOUSE'S SUPPORT.  THUS, TO THIS EXTENT AT
LEAST, IT MAY FAIRLY BE SAID THAT THESE STATUTES COMMAND "DISSIMILAR
TREATMENT FOR MEN AND WOMEN WHO ARE . . . SIMILARLY SITUATED."  REED V.
REED, 404 U.S., AT 77. 

MOREOVER, THE GOVERNMENT CONCEDES THAT THE DIFFERENTIAL TREATMENT
ACCORDED MEN AND WOMEN UNDER THESE STATUTES SERVES NO PURPOSE OTHER
THAN MERE "ADMINISTRATIVE CONVENIENCE."  IN ESSENCE, THE GOVERNMENT
MAINTAINS THAT, AS AN EMPIRICAL MATTER, WIVES IN OUR SOCIETY FREQUENTLY
ARE DEPENDENT UPON THEIR HUSBANDS, WHILE HUSBANDS RARELY ARE DEPENDENT
UPON THEIR WIVES. 

[[HC689'(ORIGINAL DOCUMENT PAGE 689)'  THUS, THE GOVERNMENT ARGUES
THAT CONGRESS MIGHT REASONABLY HAVE CONCLUDED THAT IT WOULD BE BOTH
CHEAPER AND EASIER SIMPLY CONCLUSIVELY TO PRESUME THAT WIVES OF MALE
MEMBERS ARE FINANCIALLY DEPENDENT UPON THEIR HUSBANDS, WHILE BURDENING
FEMALE MEMBERS WITH THE TASK OF ESTABLISHING DEPENDENCY IN FACT.  /22/ 

THE GOVERNMENT OFFERS NO CONCRETE EVIDENCE, HOWEVER, TENDING TO
SUPPORT ITS VIEW THAT SUCH DIFFERENTIAL TREATMENT IN FACT SAVES THE
GOVERNMENT ANY MONEY.  IN ORDER TO SATISFY THE DEMANDS OF STRICT
JUDICIAL SCRUTINY, THE GOVERNMENT MUST DEMONSTRATE, FOR EXAMPLE, THAT
IT IS ACTUALLY CHEAPER TO GRANT INCREASED BENEFITS AND TO GRANT
INCREASED BENEFITS ONLY TO THOSE MEMBERS WHOSE WIVES ACTUALLY MEET THE
DEPENDENCY REQUIREMENT.  HERE, HOWEVER, THERE IS SUBSTANTIAL EVIDENCE
THAT, IF PUT TO THE TEST, MANY OF THE WIVES OF MALE MEMBERS WOULD FAIL
TO QUALIFY FOR BENEFITS.  /23/  AND IN LIGHT OF THE FACT THAT THE
DEPENDENCY DETERMINATION WITH RESPECT TO THE HUSBANDS OF FEMALE MEMBERS
IS PRESENTLY MADE SOLELY ON THE BASIS OF AFFIDAVITS, RATHER THAN
THROUGH THE MORE COSTLY HEARING PROCESS, /24/  THE GOVERNMENT'S
EXPLANATION OF THE STATUTORY SCHEME IS, TO SAY THE LEAST,
QUESTIONABLE. 

[[HC690'(ORIGINAL DOCUMENT PAGE 690)' 

IN ANY CASE, OUR PRIOR DECISIONS MAKE CLEAR THAT ALTHOUGH
EFFICACIOUS ADMINISTRATION OF GOVERNMENTAL PROGRAMS IS NOT WITHOUT SOME
IMPORTANCE, "THE CONSTITUTION RECOGNIZES HIGHER VALUES THAN SPEED AND
EFFICIENCY."  STANLEY V. ILLINOIS, 405 U.S. 645, 656 (1972).  AND WHEN
WE ENTER THE REALM OF "STRICT JUDICIAL SCRUTINY," THERE CAN BE NO DOUBT
THAT "ADMINISTRATIVE CONVENIENCE" IS NOT A SHIBBOLETH, THE MERE
RECITATION OF WHICH DICTATES CONSTITUTIONALITY.  SEE SHAPIRO V.
THOMPSON, 394 U.S. 618 (1969); CARRINGTON V. RASH, 380 U.S. 89 (1965). 
ON THE CONTRARY, ANY STATUTORY SCHEME WHICH DRAWS A SHARP LINE BETWEEN
THE SEXES, SOLELY FOR THE PURPOSE OF ACHIEVING ADMINISTRATIVE
CONVENIENCE, NECESSARILY COMMANDS "DISSIMILAR TREATMENT FOR MEN AND
WOMEN WHO ARE . . . SIMILARLY SITUATED," AND THEREFORE INVOLVES THE
"VERY KIND OF ARBITRARY LEGISLATIVE CHOICE FORBIDDEN BY THE
(CONSTITUTION).  . . ."  REED V. REED, 404 U.S., AT 77, 76.  WE
THEREFORE CONCLUDE THAT, BY ACCORDING DIFFERENTIAL TREATMENT TO MALE
AND FEMALE MEMBERS OF THE UNIFORMED SERVICES FOR THE SOLE PURPOSE OF
ACHIEVING ADMINISTRATIVE CONVENIENCE, THE CHALLENGED STATUTES VIOLATE
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT INSOFAR AS THEY REQUIRE A
FEMALE MEMBER TO PROVE THE DEPENDENCY OF HER HUSBAND.  /25/ 

[[HC691'(ORIGINAL DOCUMENT PAGE 691)'

       REVERSED. 

/1/  THE "UNIFORMED SERVICES" INCLUDE THE ARMY, NAVY, AIR FORCE,
MARINE CORPS, COAST GUARD, ENVIRONMENTAL SCIENCE SERVICES
ADMINISTRATION, AND PUBLIC HEALTH SERVICE.  37 U.S.C. ^ 101 (3); 10
U.S.C. ^ 1072 (1). 

/2/  TITLE 37 U.S.C. ^ 401 PROVIDES IN PERTINENT PART: 

"IN THIS CHAPTER, 'DEPENDENT,' WITH RESPECT TO A MEMBER OF A
UNIFORMED SERVICE, MEANS-- 

"(1) HIS SPOUSE;

        *          *     *          * 

"HOWEVER, A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER UNLESS HE
IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT.  . . ." 

TITLE 10 U.S.C. ^ 1072 (2) PROVIDES IN PERTINENT PART: 

"'DEPENDENT,' WITH RESPECT TO A MEMBER . . . OF A UNIFORMED SERVICE,
MEANS-- 

"(A) THE WIFE;

        *          *          *          * 

"(C) THE HUSBAND, IF HE IS IN FACT DEPENDENT ON THE MEMBER . . . FOR
OVER ONE-HALF OF HIS SUPPORT.  . . ." 

/3/  SEE 102 CONG. REC. 3849 - 3850 (CONG. KILDAY), 8043 (SEN.
SALTONSTALL); 95 CONG. REC. 7662 (CONG. KILDAY), 7664 (CONG. SHORT),
7666 (CONG. HAVENNER), 7667 (CONG. BATES), 7671 (CONG. PRICE).  SEE
ALSO 10 U.S.C. ^ 1071. 

/4/  APPELLANT JOSEPH FRONTIERO IS A FULL-TIME STUDENT AT HUNTINGDON
COLLEGE IN MONTGOMERY, ALABAMA.  ACCORDING TO THE AGREED STIPULATION OF
FACTS, HIS LIVING EXPENSES, INCLUDING HIS SHARE OF THE HOUSEHOLD
EXPENSES, TOTAL APPROXIMATELY $354 PER MONTH.  SINCE HE RECEIVES $205
PER MONTH IN VETERANS' BENEFITS, IT IS CLEAR THAT HE IS NOT DEPENDENT
UPON APPELLANT SHARRON FRONTIERO FOR MORE THAN ONE-HALF OF HIS
SUPPORT. 

/5/  "(WHILE THE FIFTH AMENDMENT CONTAINS NO EQUAL PROTECTION
CLAUSE, IT DOES FORBID DISCRIMINATION THAT IS 'SO UNJUSTIFIABLE AS TO
BE VIOLATIVE OF DUE PROCESS.'"  SCHNEIDER V. RUSK, 377 U.S. 163, 168
(1964); SEE SHAPIRO V. THOMPSON, 394 U.S. 618, 641 - 642 (1969);
BOLLING V. SHARPE, 347 U.S. 497 (1954). 

/6/  THE HOUSING PROVISIONS, SET FORTH IN 37 U.S.C. SEC. 401 ET
SEQ., WERE ENACTED AS PART OF THE CAREER COMPENSATION ACT OF 1949,
WHICH ESTABLISHED A UNIFORM PATTERN OF MILITARY PAY AND ALLOWANCES,
CONSOLIDATING AND REVISING THE PIECEMEAL LEGISLATION THAT HAD BEEN
DEVELOPED OVER THE PREVIOUS 40 YEARS.  SEE H.R. REP. NO. 779, 81ST
CONG., 1ST SESS.; S. REP. NO. 733, 81ST CONG., 1ST SESS.  THE ACT
APPARENTLY RETAINED IN SUBSTANCE THE DEPENDENCY DEFINITIONS OF ^ 4 OF
THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 361), AS AMENDED BY ^ 6 OF
THE ACT OF SEPTEMBER 7, 1944 (58 STAT. 730), WHICH REQUIRED A FEMALE
MEMBER OF THE SERVICE TO DEMONSTRATE HER SPOUSE'S DEPENDENCY.  IT
APPEARS THAT THIS PROVISION WAS ITSELF DERIVED FROM UNSPECIFIED EARLIER
ENACTMENTS.  SEE S. REP. NO. 917, 78TH CONG., 2D SESS., 4. 

THE MEDICAL BENEFITS LEGISLATION, 10 U.S.C. ^ 1071 ET SEQ., WAS
ENACTED AS THE DEPENDENTS' MEDICAL CARE ACT OF 1956.  AS SUCH, IT WAS
DESIGNED TO REVISE AND MAKE UNIFORM THE EXISTING LAW RELATING TO
MEDICAL SERVICES FOR MILITARY PERSONNEL.  IT, TOO, APPEARS TO HAVE
CARRIED FORWARD, WITHOUT EXPLANATION, THE DEPENDENCY PROVISIONS FOUND
IN OTHER MILITARY PAY AND ALLOWANCE LEGISLATION.  SEE H.R. REP. NO.
1805, 84TH CONG., 2D SESS.; S. REP. NO. 1878, 84TH CONG., 2D SESS. 

/7/  SEE LOVING V. VIRGINIA, 388 U.S. 1, 11 (1967); MCLAUGHLIN V.
FLORIDA, 379 U.S. 184, 191 - 192 (1964); BOLLING V. SHARPE, 347 U.S.,
AT 499. 

/8/  SEE GRAHAM V. RICHARDSON, 403 U.S. 365, 372 (1971). 

/9/  SEE OYAMA V. CALIFORNIA, 332 U.S. 633, 644 - 646 (1948);
KOREMATSU V. UNITED STATES, 323 U.S. 214, 216 (1944); HIRABAYASHI V.
UNITED STATES, 320 U.S. 81, 100 (1943). 

/10/  BRIEF FOR APPELLEE IN NO. 70 - 4, O.T., 1971, REED V. REED,
P.12. 

/11/  ID., AT 12 - 13. 

/12/  REED V. REED, 93 IDAHO 511, 514, 465 P.2D 635, 638 (1970). 

/13/  INDEED, THE POSITION OF WOMEN IN THIS COUNTRY AT ITS INCEPTION
IS REFLECTED IN THE VIEW EXPRESSED BY THOMAS JEFFERSON THAT WOMEN
SHOULD BE NEITHER SEEN NOR HEARD IN SOCIETY'S DECISIONMAKING COUNCILS. 
SEE M. GRUBERG, WOMEN IN AMERICAN POLITICS 4 (1968).  SEE ALSO 2 A. DE
TOCQUERVILLE, DEMOCRACY IN AMERICA (REEVES TRANS.  1948). 

/14/  REYNOLDS V. SIMS, 377 U.S. 533, 562 (1964); SEE DUNN V.
BLUMSTEIN, 405 U.S. 330 336 (1972); KRAMER V. UNION FREE SCHOOL
DISTRICT, 395 U.S. 621, 626 (1969); YICK WO V. HOPKINS, 118 U.S. 356,
370 (1886). 

/15/  SEE GENERALLY THE PRESIDENT'S TASK FORCE ON WOMEN'S RIGHTS AND
RESPONSIBILITIES, A MATTER OF SIMPLE JUSTICE (1970); L. KANOWITZ, WOMEN
AND THE LAW:  THE UNFINISHED REVOLUTION (1969); A. MONTAGU, MAN'S MOST
DANGEROUS MYTH (4TH ED. 1964); THE PRESIDENT'S COMMISSION ON THE STATUS
OF WOMEN, AMERICAN WOMEN (1963). 

/16/  SEE, E.G., NOTE, SEX DISCRIMINATION AND EQUAL PROTECTION:  DO
WE NEED A CONSTITUTIONAL AMENDMENT?, 84 HARV. L. REV. 1499, 1507
(1971). 

/17/  IT IS TRUE, OF COURSE, THAT WHEN VIEWED IN THE ABSTRACT, WOMEN
DO NOT CONSTITUTE A SMALL AND POWERLESS MINORITY.  NEVERTHELESS, IN
PART BECAUSE OF PAST DISCRIMINATION, WOMEN ARE VASTLY UNDERREPRESENTED
IN THIS NATION'S DECISIONMAKING COUNCILS.  THERE HAS NEVER BEEN A
FEMALE PRESIDENT, NOR A FEMALE MEMBER OF THIS COURT.  NOT A SINGLE
WOMAN PRESENTLY SITS IN THE UNITED STATES SENATE, AND ONLY 14 WOMEN
HOLD SEATS IN THE HOUSE OF REPRESENTATIVES.  AND, AS APPELLANTS POINT
OUT, THIS UNDERREPRESENTATION IS PRESENT THROUGHOUT ALL LEVELS OF OUR
STATE AND FEDERAL GOVERNMENT.  SEE JOINT REPLY BRIEF OF APPELLANTS AND
AMERICAN CIVIL LIBERTIES UNION (AMICUS CURIAE) 9. 

/18/  SEE, E.G., DEVELOPMENTS IN THE LAW--EQUAL PROTECTION, 82 HARV.
L. REV. 1065, 1173 - 1174 (1969). 

/19/  42 U.S.C. ^^ 2000E - 2 (A), (B), (C) (EMPHASIS ADDED).  SEE
GENERALLY, SAPE & HART, TITLE VII RECONSIDERED:  THE EQUAL EMPLOYMENT
OPPORTUNITY ACT OF 1972, 40 GEO. WASH. L. REV. 824 (1972); DEVELOPMENTS
IN THE LAW--EMPLOYMENT DISCRIMINATION AND TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, 84 HARV. L. REV. 1109 (1971). 

/20/  29 U.S.C. ^ 206 (D) (EMPHASIS ADDED).  SEE GENERALLY MURPHY,
FEMALE WAGE DISCRIMINATION:  A STUDY OF THE EQUAL PAY ACT 1963 - 1970,
39 U.CIN.L. REV. 615 (1970). 

/21/ H.R.J. RES. NO. 208, 92D CONG., 2D SESS. (1972).  IN CONFORMITY
WITH THESE PRINCIPLES, CONGRESS IN RECENT YEARS HAS AMENDED VARIOUS
STATUTORY SCHEMES SIMILAR TO THOSE PRESENTLY UNDER CONSIDERATION SO AS
TO ELIMINATE THE DIFFERENTIAL TREATMENT OF MEN AND WOMEN.  SEE 5 U.S.C.
^ 2108, AS AMENDED, 85 STAT. 644; 5 U.S.C. ^ 7152, AS AMENDED, 85 STAT.
644; 5 U.S.C. ^ 8341, AS AMENDED, 84 STAT. 1961; 38 U.S.C. ^ 102 (B),
AS AMENDED, 86 STAT. 1092. 

/22/  IT SHOULD BE NOTED THAT THESE STATUTES ARE NOT IN ANY SENSE
DESIGNED TO RECTIFY THE EFFECTS OF PAST DISCRIMINATION AGAINST WOMEN. 
SEE GRUENWALD V. GARDNER, 390 F.2D 591 (CA2), CERT. DENIED, 393 U.S.
982 (1968); CF. JONES V. ALFRED H. MAYER CO., 392 U.S. 409 (1968);
SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301 (1966).  ON THE CONTRARY,
THESE STATUTES SEIZE UPON A GROUP--WOMEN--WHO HAVE HISTORICALLY
SUFFERED DISCRIMINATION IN EMPLOYMENT, AND RELY ON THE EFFECTS OF THIS
PAST DISCRIMINATION AS A JUSTIFICATION FOR HEAPING ON ADDITIONAL
ECONOMIC DISADVANTAGES.  CF. GASTON COUNTY V. UNITED STATES, 395 U.S.
285, 296 - 297 (1969). 

/23/  IN 1971, 43% OF ALL WOMEN OVER THE AGE OF 16 WERE IN THE LABOR
FORCE, AND 18% OF ALL WOMEN WORKED FULL TIME 12 MONTHS PER YEAR.  SEE
U.S. WOMEN'S BUREAU, DEPT. OF LABOR, HIGHLIGHTS OF WOMEN'S EMPLOYMENT &
EDUCATION 1 (W.B. PUB. NO. 72 - 191, MAR. 1972).  MOREOVER, 41.5% OF
ALL MARRIED WOMEN ARE EMPLOYED.  SEE U.S. BUREAU OF LABOR STATISTICS,
DEPT. OF LABOR, WORK EXPERIENCE OF THE POPULATION IN 1971, P.4 (SUMMARY
SPECIAL LABOR FORCE REPORT, AUT.  1972).  IT IS ALSO NOTEWORTHY THAT,
WHILE THE MEDIAN INCOME OF A MALE MEMBER OF THE ARMED FORCES IS
APPROXIMATELY $3,686, SEE THE REPORT OF THE PRESIDENT'S COMMISSION ON
AN ALL-VOLUNTEER ARMED FORCE 51, 181 (1970), THE MEDIAN INCOME FOR ALL
WOMEN OVER THE AGE OF 14, INCLUDING THOSE WHO ARE NOT EMPLOYED, IS
APPROXIMATELY $2,237.  SEE STATISTICAL ABSTRACT OF THE UNITED STATES
TABLE NO. 535 (1972), SOURCE: U.S. BUREAU OF THE CENSUS, CURRENT
POPULATION REPORTS, SERIES P - 60, NO. 80.  APPLYING THE STATUTORY
DEFINITION OF "DEPENDENCY" TO THESE STATISTICS, IT APPEARS THAT, IN THE
"MEDIAN" FAMILY, THE WIFE OF A MALE MEMBER MUST HAVE PERSONAL EXPENSES
OF APPROXIMATELY $4,474, OF ABOUT 75% OF THE TOTAL FAMILY INCOME, IN
ORDER TO QUALIFY AS A "DEPENDENT." 

/24/  TR. OF ORAL ARG. 27 - 28. 

/25/  AS NOTED EARLIER, THE BASIC PURPOSE OF THESE STATUTES WAS TO
PROVIDE FRINGE BENEFITS TO MEMBERS OF THE UNIFORMED SERVICES IN ORDER
TO ESTABLISH A COMPENSATION PATTERN WHICH WOULD ATTRACT CAREER
PERSONNEL THROUGH RE-ENLISTMENT.  SEE N.3, SUPRA, AND ACCOMPANYING
TEXT.  OUR CONCLUSION IN NO WISE INVALIDATES THE STATUTORY SCHEMES
EXCEPT INSOFAR AS THEY REQUIRE A FEMALE MEMBER TO PROVE THE DEPENDENCY
OF HER SPOUSE.  SEE WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164
(1972); LEVY V. LOUISIANA, 391 U.S. 68 (1968); MORITZ V. COMMISSIONER
OF INTERNAL REVENUE, 469 F.2D 466 (CA10 1972).  SEE ALSO 1 U.S.C. ^ 1. 

MR. JUSTICE STEWART CONCURS IN THE JUDGMENT, AGREEING THAT THE
STATUTES BEFORE US WORK AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE
CONSTITUTION.  REED V. REED, 404 U.S. 71.       DOP 

MR. JUSTICE REHNQUIST DISSENTS FOR THE REASONS STATED BY JUDGE RIVES
IN HIS OPINION FOR THE DISTRICT COURT, FRONTIERO V. LAIRD, 341 F.SUPP. 
201 (1972). 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, CONCURRING IN THE JUDGEMENT. 

I AGREE THAT THE CHALLENGED STATUTES CONSTITUTE AN UNCONSTITUTIONAL
DISCRIMINATION AGAINST SERVICEWOMEN IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT, BUT I CANNOT JOIN THE OPINION OF MR.
JUSTICE BRENNAN, WHICH WOULD HOLD THAT ALL CLASSIFICATIONS BASED UPON
SEX, "LIKE CLASSIFICATIONS BASED UPON RACE, ALIENAGE, AND NATIONAL
ORIGIN," ARE "INHERENTLY SUSPECT AND MUST THEREFORE BE SUBJECTED TO
CLOSE JUDICIAL SCRUTINY."  ANTE, AT 682.  IT IS UNNECESSARY FOR THE
COURT IN THIS CASE TO CHARACTERIZE SEX AS A SUSPECT CLASSIFICATION,
WITH ALL OF THE FAR-REACHING IMPLICATIONS OF SUCH A HOLDING. 

[[HC692'(ORIGINAL DOCUMENT PAGE 692)'  REED V. REED, 404 U.S. 71
(1971), WHICH ABUNDANTLY SUPPORTS OUR DECISION TODAY, DID NOT ADD SEX
TO THE NARROWLY LIMITED GROUP OF CLASSIFICATIONS WHICH ARE INHERENTLY
SUSPECT.  IN MY VIEW, WE CAN AND SHOULD DECIDE THIS CASE ON THE
AUTHORITY OF REED AND RESERVE FOR THE FUTURE ANY EXPANSION OF ITS
RATIONALE. 

THERE IS ANOTHER, AND I FIND COMPELLING, REASON FOR DEFERRING A
GENERAL CATEGORIZING OF SEX CLASSIFICATIONS AS INVOKING THE STRICTEST
TEST OF JUDICIAL SCRUTINY.  THE EQUAL RIGHTS AMENDMENT, WHICH IF
ADOPTED WILL RESOLVE THE SUBSTANCE OF THIS PRECISE QUESTION, HAS BEEN
APPROVED BY THE CONGRESS AND SUBMITTED FOR RATIFICATION BY THE STATES. 
IF THIS AMENDMENT IS DULY ADOPTED, IT WILL REPRESENT THE WILL OF THE
PEOPLE ACCOMPLISHED IN THE MANNER PRESCRIBED BY THE CONSTITUTION.  BY
ACTING PREMATURELY AND UNNECESSARILY, AS I VIEW IT, THE COURT HAS
ASSUMED A DECISIONAL RESPONSIBILITY AT THE VERY TIME WHEN STATE
LEGISLATURES, FUNCTIONING WITHIN THE TRADITIONAL DEMOCRATIC PROCESS,
ARE DEBATING THE PROPOSED AMENDMENT.  IT SEEMS TO ME THAT THIS REACHING
OUT TO PRE-EMPT BY JUDICIAL ACTION A MAJOR POLITICAL DECISION WHICH IS
CURRENTLY IN PROCESS OF RESOLUTION DOES NOT REFLECT APPROPRIATE RESPECT
FOR DULY PRESCRIBED LEGISLATIVE PROCESSES. 

THERE ARE TIMES WHEN THIS COURT, UNDER OUR SYSTEM, CANNOT AVOID A
CONSTITUTIONAL DECISION ON ISSUES WHICH NORMALLY SHOULD BE RESOLVED BY
THE ELECTED REPRESENTATIVES OF THE PEOPLE.  BUT DEMOCRATIC INSTITUTIONS
ARE WEAKENED, AND CONFIDENCE IN THE RESTRAINT OF THE COURT IS IMPAIRED,
WHEN WE APPEAR UNNECESSARILY TO DECIDE SENSITIVE ISSUES OF BROAD SOCIAL
AND POLITICAL IMPORTANCE AT THE VERY TIME THEY ARE UNDER CONSIDERATION
WITHIN THE PRESCRIBED CONSTITUTIONAL PROCESSES. 

JOSEPH J. LEVIN, JR., ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEF WAS MORRIS S. DEES, JR. 

SAMUEL HUNTINGTON ARGUED THE CAUSE FOR APPELLEES.  ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WOOD, AND MARK
L. EVANS. 

RUTH BADER GINSBURG ARGUED THE CAUSE FOR THE AMERICAN CIVIL
LIBERTIES UNION AS AMICUS CURIAE URGING REVERSAL.  WITH HER ON THE
BRIEF WAS MELVIN L. WULF. 
..END :



















MOOR ET AL. V. COUNTY OF ALAMEDA ET AL., 411 U.S. 693 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT 

NO. 72 - 10.  ARGUED FEBRUARY 27, 1973--DECIDED MAY 14,

  1973; 458 F.2D 1217, AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED. 


    PETITONERS MOOR AND RUNDLE BROUGHT DAMAGES ACTIONS IN THE

  DISTRICT COURT AGAINST RESPONDENTS, SEVERAL LAW ENFORCEMENT

  OFFICERS AND ALAMEDA COUNTY.  AGAINST THE COUNTY THEY ALLEGED

  FEDERAL CAUSES OF ACTION UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. ^^

  1983 AND 1988, AND PENDENT STATE CLAIMS UNDER THE STATE TORT

  CLAIMS STATUTE, THE FEDERAL, AS WELL AS THE STATE, CAUSES OF

  ACTION BEING GROUNDED ON THE THEORY THAT THE COUNTY WAS

  VICARIOUSLY LIABLE UNDER STATE LAW FOR THE OFFICERS' ACTS.  BOTH

  PETITIONERS ALLEGED FEDERAL JURISDICTION UNDER 28 U.S.C. ^ 1343

  AND MOOR, ADDITIONALLY, ON DIVERSITY GROUNDS.  THE COUNTY MOVED

TO DISMISS IN EACH CASE, CONTENDING THAT, AS TO THE CIVIL RIGHTS

  ACT CLAIMS, IT WAS NOT A SUABLE "PERSON" UNDER MONROE V. PAPE,

  365 U.S. 167; THAT, ABSENT A CLAIM AGAINST IT AS TO WHICH THERE

  EXISTS AN INDEPENDENT BASIS OF FEDERAL JURISDICTION, APPLICATION

  OF THE PENDENT JURISDICTION DOCTRINE WITH RESPECT TO THE STATE

  LAW CLAIMS WOULD BE INAPPROPRIATE; AND THAT IN MOOR'S SUIT IT WAS

  NOT A "CITIZEN" FOR FEDERAL DIVERSITY PURPOSES.  THE DISTRICT

  COURT GRANTED THE MOTIONS TO DISMISS, AND THE COURT OF APPEALS

AFFIRMED.  HELD: 

     1.  SECTION 1988, AS IS CLEAR FROM ITS LEGISLATIVE HISTORY,

  DOES NOT INDEPENDENTLY CREATE A FEDERAL CAUSE OF ACTION FOR THE

  VIOLATION OF FEDERAL CIVIL RIGHTS, AND TO APPLY THAT PROVISION

  HERE BY IMPOSING VICARIOUS LIABILITY UPON THE COUNTY WOULD

  CONTRAVENE THE HOLDING IN MONROE V. PAPE, SUPRA, AND CONGRESS'

  INTENT TO EXCLUDE A STATE'S POLITICAL SUBDIVISION FROM CIVIL

LIABILITY UNDER ^ 1983.  PP. 698 - 710. 

     2.  EVEN ASSUMING, ARGUENDO, THAT THE DISTRICT COURT HAD

  JUDICIAL POWER TO EXERCISE PENDENT JURISDICTION OVER PETITIONERS'

STATE LAW CLAIMS WHICH WOULD REQUIRE THAT THE COUNTY BE BROUGHT

  IN AS A NEW PARTY DEFENDANT, AGAINST WHICH PETITIONERS COULD NOT

  STATE A FEDERALLY COGNIZABLE CLAIM, IN ADDITION TO THE INDIVIDUAL

  DEFENDANTS AGAINST WHOM THEY COULD ASSERT SUCH A CLAIM, THE COURT

  DID NOT ABUSE ITS DISCRETION IN NOT EXERCISING THAT POWER IN VIEW

  OF UNSETTLED QUESTIONS OF STATE LAW THAT IT WOULD HAVE BEEN

  CALLED UPON TO RESOLVE AND THE LIKELIHOOD OF JURY CONFUSION

  RESULTING FROM THE SPECIAL DEFENSES TO A COUNTY AVAILABLE UNDER

THE STATE TORT CLAIMS LAW.  PP. 710 - 717. 

[[HC694'(ORIGINAL DOCUMENT PAGE 694)' 

     3.  THE DISTRICT COURT ERRED IN REJECTING PETITIONER MOOR'S

  STATE LAW CLAIM AGAINST THE COUNTY, WHICH UNDER CALIFORNIA LAW

  HAS AN INDEPENDENT STATUS, ON THE BASIS OF DIVERSITY OF

  CITIZENSHIP, SINCE DIVERSITY JURISDICTION EXTENDS TO A STATE'S

  POLITICAL SUBDIVISION THAT IS NOT SIMPLY THE ARM OR ALTER EGO OF

  THE STATE, COWLES V. MERCER COUNTY, 7 WALL.  118.  PP. 717 -
722. 

     MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION,

  POST, P. 722. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES THREE DISTINCT QUESTIONS CONCERNING THE SCOPE OF
FEDERAL JURISDICTION.  WE ARE CALLED UPON TO DECIDE WHETHER A FEDERAL
CAUSE OF ACTION LIES AGAINST A MUNICIPALITY UNDER 42 U.S.C. ^^ 1983 AND
1988 FOR THE ACTIONS OF ITS OFFICERS WHICH VIOLATE AN INDIVIDUAL'S
FEDERAL CIVIL RIGHTS WHERE THE MUNICIPALITY IS SUBJECT TO SUCH
LIABILITY UNDER STATE LAW.  IN ADDITION, WE MUST DECIDE WHETHER, IN A
FEDERAL CIVIL RIGHTS SUIT BROUGHT AGAINST A MUNICIPALITY'S POLICE
OFFICERS, A FEDERAL COURT MAY REFUSE TO EXERCISE PENDENT JURISDICTION
OVER A STATE LAW CLAIM AGAINST THE MUNICIPALITY BASED ON A THEORY OF
VICARIOUS LIABILITY, AND WHETHER A COUNTY OF THE STATE OF CALIFORNIA IS
A CITIZEN OF THE STATE FOR PURPOSES OF FEDERAL DIVERSITY JURISDICTION. 

[[HC695'(ORIGINAL DOCUMENT PAGE 695)' 

IN FEBRUARY 1970, PETITIONERS MOOR AND RUNDLE /1/ FILED SEPARATE
ACTIONS IN DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SEEKING TO RECOVER ACTUAL AND PUNITIVE DAMAGES FOR INJURIES ALLEGEDLY
SUFFERED BY THEM AS A RESULT OF THE WRONGFUL DISCHARGE OF A SHOTGUN BY
AN ALAMEDA COUNTY, CALIFORNIA, DEPUTY SHERIFF ENGAGED IN QUELLING A
CIVIL DISTURBANCE.  /2/  IN THEIR COMPLAINTS, PETITIONERS NAMED THE
DEPUTY SHERIFF, PLUS THREE OTHER DEPUTIES, THE SHERIFF, AND THE COUNTY
OF ALAMEDA AS DEFENDANTS.  THE COMPLAINTS ALLEGED BOTH FEDERAL AND
STATE CAUSES OF ACTION. 

THE FEDERAL CAUSES OF ACTION AGAINST THE INDIVIDUAL DEFENDANTS WERE
BASED ON ALLEGATIONS OF CONSPIRACY AND INTENT TO DEPRIVE PETITIONERS OF
THEIR CONSTITUTIONAL RIGHTS OF FREE SPEECH AND ASSEMBLY, AND TO BE
SECURE FROM THE DEPRIVATION OF LIFE AND LIBERTY WITHOUT DUE PROCESS OF
LAW.  THESE FEDERAL CAUSES OF ACTION AGAINST THE INDIVIDUAL DEFENDANTS
WERE ALLEGED TO ARISE UNDER, INTER ALIA, 42 U.S.C. ^^ 1983 AND 1985,
AND JURISDICTION WAS ASSERTED TO EXIST UNDER 28 U.S.C. ^ 1343. 

[[HC696'(ORIGINAL DOCUMENT PAGE 696)' 

AS TO THE COUNTY, BOTH THE FEDERAL AND STATE LAW CLAIMS WERE
PREDICATED ON THE CONTENTION THAT UNDER THE CALIFORNIA TORT CLAIMS ACT
OF 1963, CAL. GOVT. CODE ^ 815.2 (A), THE COUNTY WAS VICARIOUSLY LIABLE
FOR THE ACTS OF ITS DEPUTIES AND SHERIFF COMMITTED IN VIOLATION OF THE
FEDERAL CIVIL RIGHTS ACT.  /3/  THE FEDERAL CAUSES OF ACTION AGAINST
THE COUNTY WERE BASED ON 42 U.S.C. ^^ 1983 AND 1988, /4/  AND THUS
JURISDICTION WAS ALSO ALLEGED TO EXIST WITH RESPECT TO THESE CLAIMS
UNDER 28 U.S.C. ^ 1343.  BOTH PETITIONERS ARGUED BEFORE THE DISTRICT
COURT THAT IT HAD AUTHORITY TO HEAR THEIR STATE LAW CLAIMS AGAINST THE
COUNTY UNDER THE DOCTRINE OF PENDENT JURISDICTION.  IN ADDITION,
PETITIONER MOOR WHO ALLEGED THAT HE WAS A CITIZEN OF ILLINOIS ASSERTED
IN HIS COMPLAINT THAT THE DISTRICT COURT ALSO HAD JURISDICTION OVER HIS
STATE LAW CLAIM AGAINST THE COUNTY ON THE BASIS OF DIVERSITY OF
CITIZENSHIP.  /5/ 

INITIALLY, THE DEFENDANTS ANSWERED BOTH COMPLAINTS DENYING
LIABILITY, ALTHOUGH THE COUNTY ADMITTED THAT IT HAD CONSENTED TO BE
SUED.  /6/  THEREAFTER, THE COUNTY, ARGUING LACK OF JURISDICTION, MOVED
TO DISMISS ALL OF THE CLAIMS AGAINST IT IN THE RUNDLE SUIT AND TO
DISMISS THE FEDERAL CIVIL RIGHTS CLAIMS IN THE MOOR SUIT.  THE COUNTY
RELIED UPON THIS COURT'S DECISION IN MONROE V. PAPE, 365 U.S. 167, 187
191 (1961), AS HAVING RESOLVED THAT A MUNICIPALITY SUCH AS IT IS NOT A
"PERSON" WITHIN THE MEANING OF 42 U.S.C. ^ 1983, AND ON THIS BASIS
ALONE IT CONSIDERED THE CIVIL RIGHTS CLAIMS AGAINST IT TO BE BARRED. 

[[HC697'(ORIGINAL DOCUMENT PAGE 697)'  MOREOVER, IN RUNDLE, THE
COUNTY ARGUED THAT SINCE THERE WAS BEFORE THE DISTRICT COURT NO CLAIM
AGAINST THE COUNTY AS TO WHICH THERE EXISTED AN INDEPENDENT BASIS OF
FEDERAL JURISDICTION, IT WOULD BE INAPPROPRIATE TO EXERCISE PENDENT
JURISDICTION OVER THE STATE LAW CLAIM AGAINST IT. 

THE DISTRICT COURT AGREED WITH THE COUNTY'S ARGUMENTS AND GRANTED
THE MOTION TO DISMISS THE RUNDLE SUIT.  IT, HOWEVER, POSTPONED RULING
IN THE MOOR CASE PENDING CONSIDERATION OF POSSIBLE DIVERSITY
JURISDICTION OVER THE STATE LAW CLAIM AGAINST THE COUNTY IN THAT CASE. 
SUBSEQUENTLY, THE COUNTY SOUGHT TO HAVE THE STATE LAW CLAIM IN MOOR
DISMISSED ON THE BASIS THAT IT WAS NOT A CITIZEN OF CALIFORNIA FOR
PURPOSES OF DIVERSITY JURISDICTION.  WHILE THIS MOTION WAS PENDING, A
MOTION WAS FILED IN THE RUNDLE CASE.  FOLLOWING ARGUMENT WITH RESPECT
TO THE JURISDICTIONAL ISSUES, THE DISTRICT COURT ENTERED AN ORDER IN
MOOR HOLDING THAT THERE WAS NO DIVERSITY JURISDICTION AND INCORPORATING
BY REFERENCE AN ORDER FILED IN THE RUNDLE CASE WHICH AGAIN REJECTED
PETITIONERS' CIVIL RIGHTS AND PENDENT JURISDICTION ARGUMENTS.  UPON THE
REQUEST OF THE PETITIONERS, THE DISTRICT COURT, FINDING "NO JUST REASON
FOR DELAY," ENTERED A FINAL JUDGMENT IN BOTH SUITS WITH RESPECT TO THE
COUNTY UNDER FED. RULE CIV. PROC. 54 (B), THEREBY ALLOWING IMMEDIATE
APPEAL OF ITS JURISDICTIONAL DECISIONS.  /7/ 

[[HC698'(ORIGINAL DOCUMENT PAGE 698)' 

THE TWO CASES WERE THEN CONSOLIDATED FOR PURPOSES OF APPEAL, AND THE
COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED THE DISTRICT COURT WITH
RESPECT TO ALL THREE ISSUES RAISED BY THE TWO CASES, 458 F.2D 1217
(1972).  IN ADDITION TO REJECTING PETITIONERS'  ARGUMENTS CONCERNING
THE EXISTENCE OF PENDENT JURISDICTION AND DIVERSITY JURISDICTION OVER
THE STATE LAW CLAIMS, THE COURT OF APPEALS DISAGREED IN PARTICULAR WITH
PETITIONERS' CONTENTION THAT ^ 1988 ALONE ESTABLISHED A FEDERAL CAUSE
OF ACTION AGAINST THE COUNTY FOR THEIR INJURIES ON THE BASIS OF
CALIFORNIA LAW WHICH CREATED VICARIOUS LIABILITY AGAINST THE COUNTY FOR
THE ACTIONS OF ITS OFFICERS THAT VIOLATED PETITIONERS' FEDERAL CIVIL
RIGHTS.  BECAUSE OF THE IMPORTANCE OF THE QUESTIONS DECIDED BY THE
COURT OF APPEALS, WE GRANTED CERTIORARI.  409 U.S. 841 (1972).  FOR
REASONS STATED BELOW, WE NOW AFFIRM THAT PORTION OF THE COURT OF
APPEALS' DECISION WHICH HELD THAT PETITIONER HAD FAILED TO ESTABLISH A
CAUSE OF ACTION AGAINST THE COUNTY UNDER 42 U.S.C. ^^ 1983 AND 1988,
AND THAT THE TRIAL COURT PROPERLY REFUSED TO EXERCISE PENDENT
JURISDICTION OVER THE STATE LAW CLAIMS.  WE REVERSE, HOWEVER, ITS
HOLDING THAT THE COUNTY IS NOT A CITIZEN OF CALIFORNIA FOR PURPOSES OF
FEDERAL DIVERSITY JURISDICTION. 

  I 

WE CONSIDER FIRST PETITIONERS' ARGUMENT CONCERNING THE EXISTENCE OF
A FEDERAL CAUSE OF ACTION AGAINST THE COUNTY UNDER 42 U.S.C. ^ 1988. 
PETITIONERS' THESIS IS, IN ESSENCE, THAT UNDER CALIFORNIA LAW THE
COUNTY HAS BEEN MADE VICARIOUSLY LIABLE FOR THE CONDUCT OF ITS SHERIFF
AND DEPUTY SHERIFFS WHICH VIOLATES THE FEDERAL CIVIL RIGHTS ACTS /8/
AND THAT, IN THE CONTEXT OF THIS CASE, ^ 1988 AUTHORIZES THE ADOPTION
OF SUCH STATE LAW INTO FEDERAL LAW IN ORDER TO RENDER THE CIVIL RIGHTS
ACTS FULLY EFFECTIVE, THEREBY CREATING A FEDERAL CAUSE OF ACTION
AGAINST THE COUNTY. 

[[HC699'(ORIGINAL DOCUMENT PAGE 699)' 


     "THE JURISDICTION IN CIVIL . . . MATTERS CONFERRED ON THE

DISTRICT COURTS BY (THE CIVIL RIGHTS ACTS) . . . , FOR THE

 PROTECTION OF ALL PERSONS IN THE UNITED STATES IN THEIR CIVIL

  RIGHTS, AND FOR THEIR VINDICATION, SHALL BE EXERCISED AND

  ENFORCED IN CONFORMITY WITH THE LAWS OF THE UNITED STATES, SO FAR

  AS SUCH LAWS ARE SUITABLE TO CARRY THE SAME INTO EFFECT; BUT IN

  ALL CASES WHERE THEY ARE NOT ADAPTED TO THE OBJECT, OR ARE

  DEFICIENT IN THE PROVISIONS NECESSARY TO FURNISH SUITABLE

  REMEDIES . . . , THE COMMON LAW, AS MODIFIED AND CHANGED BY THE

  CONSTITUTION AND STATUTES OF THE STATE WHEREIN THE COURT HAVING

  JURISDICTION OF SUCH CIVIL . . . CAUSE IS HELD, SO FAR AS THE

  SAME IS NOT INCONSISTENT WITH THE CONSTITUTION AND LAWS OF THE

UNITED STATES, SHALL BE EXTENDED TO AND GOVERN THE SAID COURTS IN

  THE TRIAL AND DISPOSITION OF THE CAUSE.  . . ." 

THE STARTING POINT FOR PETITIONERS' ARGUMENT IS THIS COURT'S DECISION
IN MONROE V. PAPE, 365 U.S. 167 (1961).  THERE THE COURT HELD THAT 42
U.S.C. ^ 1983, WHICH WAS DERIVED FROM ^ 1 OF THE KU KLUX KLAN ACT OF
APRIL 20, 1871, 17 STAT. 13, WAS INTENDED TO PROVIDE PRIVATE PARTIES A
CAUSE OF ACTION FOR ABUSES OF OFFICIAL AUTHORITY WHICH RESULTED IN THE
DEPRIVATION OF CONSTITUTIONAL RIGHTS, PRIVILEGES, AND IMMUNITIES.  /9/
AT THE SAME TIME, HOWEVER, THE COURT HELD THAT A MUNICIPALITY IS NOT A
"PERSON" WITHIN THE MEANING OF ^ 1983. 

[[HC700'(ORIGINAL DOCUMENT PAGE 700)'  ID., AT 187 - 191. 
PETITIONERS DO NOT SQUARELY TAKE ISSUE WITH THE HOLDING IN MONROE
CONCERNING THE STATUS UNDER ^ 1983 OF PUBLIC ENTITIES SUCH AS THE
COUNTY.  INSTEAD, PETITIONERS ARGUE THAT SINCE THE CONSTRUCTION PLACED
UPON ^ 1983 IN MONROE WITH RESPECT TO MUNICIPALITIES EFFECTIVELY
RESTRICTS THE INJURED PARTY IN A CASE SUCH AS THIS TO RECOVERY FROM THE
INDIVIDUAL DEFENDANTS, THE SECTION CANNOT BE CONSIDERED TO BE FULLY
"ADAPTED" TO THE PROTECTION OF FEDERAL CIVIL RIGHTS OR IS "DEFICIENT IN
THE PROVISIONS NECESSARY TO FURNISH PETITIONERS' VIEW, THE PERSONAL
LIABILITY OF THE INDIVIDUAL DEFENDANTS UNDER ^ 1983 IS, AS A PRACTICAL
MATTER, INADEQUATE BECAUSE PUBLIC OFFICERS ARE FREQUENTLY JUDGMENT
PROOF.  /10/  THUS, PETITIONERS CONTEND IT IS APPROPRIATE UNDER ^ 1988
FOR THIS COURT TO ADOPT INTO FEDERAL LAW THE CALIFORNIA LAW OF
VICARIOUS LIABILITY FOR MUNICIPALITIES--THAT IS, THE "COMMON LAW, AS
MODIFIED . . . BY . . . STATUTES OF THE STATE WHEREIN THE COURT HAVING
JURISDICTION OF SUCH CIVIL . . . CAUSE IS HELD."  HAVING THUS
INTRODUCED THE STATE'S LAW OF VICARIOUS LIABILITY INTO FEDERAL LAW
THROUGH ^ 1988, THEY THEN ASSERT THAT THERE IS FEDERAL JURISDICTION TO
HEAR THEIR FEDERAL CLAIMS AGAINST THE COUNTY UNDER 28 U.S.C. ^ 1343
(4). 

[[HC701'(ORIGINAL DOCUMENT PAGE 701)'  SECTION 1343 (4) GRANTS
JURISDICTION TO THE FEDERAL DISTRICT COURTS TO HEAR ANY CIVIL ACTION
"COMMENCED BY ANY PERSON . . . (TO RECOVER DAMAGES OR TO SECURE
EQUITABLE OR OTHER RELIEF UNDER ANY ACT OF CONGRESS PROVIDING FOR THE
PROTECTION OF CIVIL RIGHTS.  . . .," AND ^ 1988 IS, PETITIONERS SAY,
SUCH AN "ACT OF CONGRESS." 

PETITIONERS IN THIS CASE ARE NOT ASKING US TO CREATE A SUBSTANTIVE
FEDERAL LIABILITY WITHOUT LEGISLATIVE DIRECTION.  SEE UNITED STATES V.
STANDARD OIL CO., 332 U.S. 301 (1947); CF. UNITED STATES V. GILMAN, 347
U.S. 507 (1954).  IT IS THEIR VIEW, RATHER, THAT IN ^ 1988 CONGRESS HAS
EFFECTIVELY MANDATED THE ADOPTION OF CALIFORNIA'S LAW OF VICARIOUS
LIABILITY INTO FEDERAL LAW.  IT IS, OF COURSE, NOT UNCOMMON FOR
CONGRESS TO DIRECT THAT STATE LAW BE USED TO FILL THE INTERSTICES OF
FEDERAL LAW.  /11/  BUT IN SUCH CIRCUMSTANCES OUR FUNCTION IS
NECESSARILY THE PROCESS OF JUDICIAL IMPLICATION THE TASK OF SELECTING
IN ANY PARTICULAR CASE APPROPRIATE RULES FROM STATE LAW TO SUPPLEMENT
ESTABLISHED FEDERAL LAW, THE APPLICATION OF THAT PROCESS IS RESTRICTED
TO THOSE CONTEXTS IN WHICH CONGRESS HAS IN FACT AUTHORIZED RESORT TO
STATE AND COMMON LAW.  /12/  CF. RICHARDS V. UNITED STATES, 369 U.S. 1,
7 - 8 (1962).  CONSIDERING ^ 1988 FROM THIS PERSPECTIVE, WE ARE UNABLE
TO CONCLUDE THAT CONGRESS INTENDED THAT SECTION, STANDING ALONE, TO
AUTHORIZE THE FEDERAL COURTS TO BORROW ENTIRE CLAUSES OF ACTION FROM
STATE LAW. 

[[HC702'(ORIGINAL DOCUMENT PAGE 702)' 

FIRST, PETITIONERS' ARGUMENT COMPLETELY OVERLOOKS THE FULL LANGUAGE
OF THE STATUTE.  SECTION 1988 DOES NOT ENJOY THE INDEPENDENT STATURE OF
AN "ACT OF CONGRESS PROVIDING FOR THE PROTECTION OF CIVIL RIGHTS," 28
U.S.C. ^ 1343 (4).  RATHER, AS IS PLAIN ON THE FACE OF THE STATUTE, THE
FEDERAL CAUSES OF ACTION FOR THE VIOLATION OF FEDERAL CIVIL RIGHTS. 
/13/  THUS, ^ 1988 SPECIFIES THAT "(THE JURISDICTION IN CIVIL AND
CRIMINAL MATTERS CONFERRED ON THE DISTRICT COURTS BY THE PROVISIONS OF
THIS CHAPTER (CIVIL RIGHTS) AND TITLE 18, FOR CIVIL RIGHTS, AND FOR
THEIR VINDICATION, SHALL BE EXERCISED AND ENFORCED IN CONFORMITY WITH
THE LAWS OF THE UNITED STATES."  BUT INEVITABLE EXISTING FEDERAL LAW
WILL NOT COVER EVERY ISSUE THAT MAY ARISE IN THE CONTEST OF A FEDERAL
CIVIL RIGHTS ACTION.  /14/  THUS, ^ 1988 PROCEEDS TO AUTHORIZE FEDERAL
COURTS, WHERE FEDERAL LAW IS UNSUITED OR INSUFFICIENT "TO FURNISH
SUITABLE REMEDIES," TO LOOK TO PRINCIPLES OF THE COMMON LAW, AS ALTERED
BY STATE LAW, SO LONG AS SUCH PRINCIPLES ARE NOT INCONSISTENT WITH THE
CONSTITUTION AND LAWS OF THE UNITED STATES. 

[[HC703'(ORIGINAL DOCUMENT PAGE 703)'  THE ROLE OF ^ 1988 IN THE
SCHEME OF FEDERAL CIVIL RIGHTS LEGISLATION IS AMPLY ILLUSTRATED BY OUR
DECISION IN SULLIVAN V. LITTLE HUNTING PARK, 396 U.S. 229 (1969).  IN
SULLIVAN, THE COURT WAS CONFRONTED WITH A QUESTION AS TO THE
AVAILABILITY OF DAMAGES IN A SUIT CONCERNING DISCRIMINATION IN THE
DISPOSITION OF PROPERTY BROUGHT PURSUANT TO ^ 1982 WHICH MAKES NO
EXPRESS PROVISION FOR A DAMAGES REMEDY.  /15/  THE COURT CONCLUDED THAT
"(THE EXISTENCE OF A STATUTORY RIGHT IMPLIES THE EXISTENCE OF ALL
NECESSARY AND APPROPRIATE REMEDIES," ID., AT 239, AND PROCEEDED TO
CONSTRUE ^ 1988, WHICH PROVIDES THE GOVERNING STANDARD IN SUCH A CASE,
TO MEAN "THAT BOTH FEDERAL AND STATE RULES ON DAMAGES MAY BE UTILIZED,
WHICHEVER BETTER SERVES THE POLICIES EXPRESSED IN THE FEDERAL
STATUTES.  . . . THE RULE OF DAMAGES, WHETHER DRAWN FROM FEDERAL OR
STATE SOURCES, IS A FEDERAL RULE RESPONSIVE TO THE NEED WHENEVER A
FEDERAL RIGHT IS IMPAIRED."  ID., AT 240.  /16/  PROPERLY VIEWED, THEN,
^ 1988 INSTRUCTS FEDERAL COURTS AS TO WHAT LAW TO APPLY IN CAUSES OF
ACTIONS ARISING UNDER FEDERAL CIVIL RIGHTS ACTS.  BUT WE DO NOT BELIEVE
THAT THE SECTION, WITHOUT MORE, WAS MEANT TO AUTHORIZE THE WHOLESALE
IMPORTATION INTO FEDERAL LAW OF STATE CAUSES OF ACTION /17/  --NOT EVEN
ONE PURPORTEDLY DESIGNED FOR THE PROTECTION OF FEDERAL CIVIL RIGHTS. 
[[HC704'(ORIGINAL DOCUMENT PAGE 704)' 

THIS VIEW IS FULLY CONFIRMED BY THE LEGISLATIVE HISTORY OF THE
STATUTE.  SECTION 1988 WAS FIRST ENACTED AS A PORTION OF ^ 3 OF THE
CIVIL RIGHTS ACT OF APRIL 9, 1866, C. 31, 14 STAT. 27.  SECTION 1 OF
THAT ACT IS THE SOURCE OF 42 U.S.C. ^ 1982, THE PROVISION UNDER WHICH
SUIT WAS BROUGHT IN SULLIVAN.  THE INITIAL PORTION OF ^ 3 OF THE ACT
ESTABLISHED FEDERAL JURISDICTION TO HEAR, AMONG OTHER THINGS, CIVIL
ACTIONS BROUGHT TO ENFORCE ^ 1. 

[[HC705'(ORIGINAL DOCUMENT PAGE 705)'  SECTION 3 THEN WENT ON TO
PROVIDE THAT THE JURISDICTION THEREBY ESTABLISHED SHOULD BE EXERCISED
IN CONFORMITY WITH FEDERAL LAW WHERE SUITABLE AND WITH REFERENCE TO THE
COMMON LAW, AS MODIFIED BY STATE LAW, WHERE FEDERAL LAW IS DEFICIENT. 
/18/  CONSIDERED IN CONTEXT, THIS LATTER PORTION OF ^ 3, WHICH HAS
BECOME ^ 1988 AND HAS BEEN MADE APPLICABLE TO THE CIVIL RIGHTS ACTS
GENERALLY, WAS OBVIOUSLY INTENDED TO DO NOTHING MORE THAN TO EXPLAIN
THE SOURCE OF LAW TO BE APPLIED IN ACTIONS BROUGHT TO ENFORCE THE
SUBSTANTIVE PROVISIONS OF THE ACT, INCLUDING ^ 1.  /19/  TO HOLD
OTHERWISE WOULD TEAR ^ 1988 LOOSE FROM ITS ROOTS IN ^ 3 OF THE 1866
CIVIL RIGHTS ACT. 

[[HC706'(ORIGINAL DOCUMENT PAGE 706)' 

THERE IS YET ANOTHER REASON WHY PETITIONERS' RELIANCE UPON ^ 1988
MUST FAIL.  THE STATUTE EXPRESSLY LIMITS THE AUTHORITY GRANTED FEDERAL
COURTS TO LOOK TO THE COMMON LAW, AS MODIFIED BY STATE LAW, TO
INSTANCES IN WHICH THAT LAW "IS NOT INCONSISTENT WITH THE CONSTITUTION
AND LAWS OF THE UNITED STATES."  YET IF WE WERE TO LOOK TO CALIFORNIA
LAW IMPOSING VICARIOUS LIABILITY UPON MUNICIPALITIES, AS PETITIONERS
WOULD HAVE US DO, THE RESULT WOULD EFFECTIVELY BE TO SUBJECT THE COUNTY
TO FEDERAL COURT SUIT ON A FEDERAL CIVIL RIGHTS CLAIM.  SUCH A RESULT
WOULD SEEM TO BE LESS THAN CONSISTENT WITH THIS COURT'S PRIOR HOLDING
IN MONROE V. PAPE, 365 U.S., AT 187 - 191, THAT CONGRESS DID NOT INTEND
TO RENDER MUNICIPAL CORPORATIONS LIABLE TO FEDERAL CIVIL RIGHTS CLAIMS
UNDER ^ 1983.  SEE, E.G., BROWN V. TOWN OF CALIENTE, 392 F.2D 546 (CA9
1968); RIES V. LYNSKEY, 452 F.2D 172, 174 - 175 (CA7 1971); BROWN V.
AMES, 346 F.SUPP.  1173, 1176 (MINN. 1972); WILCHER V. GAIN, 311
F.SUPP.  754, 755 (ND CAL. 1970). 

PETITIONERS ARGUE, HOWEVER, THAT THERE IS IN FACT NO INCONSISTENCY
BETWEEN THE INTERPRETATION PLACED UPON ^ 1983 IN MONROE AND THE
INTERPRETATION OF ^ 1988 FOR WHICH THEY NOW ARGUE HERE. 

[[HC707'(ORIGINAL DOCUMENT PAGE 707)'  THEY SUGGEST THAT MONROE
INVOLVED NO QUESTION OF THE SUSCEPTIBILITY TO SUIT OF A MUNICIPALITY
WHICH HAS SURRENDERED ITS COMMONLAW IMMUNITY UNDER STATE LAW; THE
INTERPRETATION OF ^ 1983 IN MONROE WAS, IN THEIR VIEW, PREMISED UPON AN
ASSUMPTION THAT THE MUNICIPALITY HAD NOT BEEN DEPRIVED OF ITS
IMMUNITY.  AND CONGRESS, PETITIONERS ARGUE, DID NOT INTEND TO EXCLUDE
FROM THE REACH OF ^ 1983 MUNICIPALITIES THAT HAVE SURRENDERED THEIR
IMMUNITY FROM SUIT UNDER STATE LAW.  THUS, THEY CONCLUDE THAT IN A CASE
SUCH AS THIS, WHERE THE MUNICIPALITY HAS LOST ITS IMMUNITY, THERE IS NO
INCONSISTENCY BETWEEN ^ 1983 AND THE INTRODUCTION OF THE STATE CAUSE OF
ACTION AGAINST THE COUNTY INTO FEDERAL LAW UNDER ^ 1988. 

IN EFFECT, PETITIONERS ARE ARGUING THAT THEIR PARTICULAR ACTIONS MAY
BE PROPERLY BROUGHT AGAINST THIS COUNTY ON THE BASIS OF ^ 1983.  BUT
WHATEVER THE FACTUAL PREMISES OF MONROE, WE FIND THE CONSTRUCTION WHICH
PETITIONERS SEEK TO IMPOSE UPON ^ 1983 CONCERNING THE STATUS OF
MUNICIPALITIES AS "PERSONS" TO BE SIMPLY UNTENABLE. 

IN MONROE, THE COURT, IN EXAMINING THE LEGISLATIVE EVOLUTION OF THE
KU KLUX KLAN ACT OF APRIL 20, 1871, WHICH IS THE SOURCE OF ^ 1983,
POINTED OUT THAT SENATOR SHERMAN INTRODUCED AN AMENDMENT WHICH WOULD
HAVE ADDED TO THE ACT A NEW SECTION PROVIDING EXPRESSLY FOR MUNICIPAL
LIABILITY IN CIVIL ACTIONS BASED ON THE DEPRIVATION OF CIVIL RIGHTS. 
ALTHOUGH THE AMENDMENT WAS PASSED BY THE SENATE, /20/  IT WAS REJECTED
BY THE HOUSE, /21/  AS WAS ANOTHER VERSION INCLUDED IN THE FIRST
CONFERENCE COMMITTEE REPORT.  /22/ 

[[HC708'(ORIGINAL DOCUMENT PAGE 708)'  THE PROPOSAL FOR MUNICIPAL
LIABILITY ENCOUNTERED STRONGLY HELD VIEWS IN THE HOUSE ON THE PART OF
BOTH ITS SUPPORTERS AND OPPONENTS, /23/  BUT THE ROOT OF THE PROPOSAL'S
DIFFICULTIES STEMMED FROM SERIOUS LEGISLATIVE CONCERN AS TO CONGRESS'
CONSTITUTIONAL POWER TO IMPOSE LIABILITY ON POLITICAL SUBDIVISIONS OF
THE STATES.  /24/ 

[[HC709'(ORIGINAL DOCUMENT PAGE 709)' 

AS IN MONROE, WE HAVE NO OCCASION HERE TO "REACH THE CONSTITUTIONAL
QUESTION WHETHER CONGRESS HAS THE POWER TO MAKE MUNICIPALITIES LIABLE
FOR ACTS OF ITS OFFICERS THAT VIOLATE THE CIVIL RIGHTS OF
INDIVIDUALS."  365 U.S., AT 191.  FOR IN INTERPRETING THE STATUTE IT IS
NOT OUR TASK TO CONSIDER WHETHER CONGRESS WAS MISTAKEN IN 1871 IN ITS
VIEW OF THE LIMITS OF ITS POWER OVER MUNICIPALITIES; RATHER, WE MUST
CONSTRUE THE STATUTE IN LIGHT OF THE IMPRESSIONS UNDER WHICH CONGRESS
DID IN FACT ACT, SEE RIES V. LYNSKEY, 452 F.2D, AT 175.  IN THIS
RESPECT, IT CANNOT BE DOUBTED THAT THE HOUSE ARRIVED AT THE FIRM
CONCLUSION THAT CONGRESS LACKED THE CONSTITUTIONAL POWER TO IMPOSE
LIABILITY UPON MUNICIPALITIES, AND THUS, ACCORDING TO REPRESENTATIVE
POLAND, THE SENATE CONFEREES WERE INFORMED BY THE HOUSE CONFEREES THAT
THE "SECTION IMPOSING LIABILITY UPON TOWNS AND COUNTIES MUST GO OUT OR
WE SHOULD FAIL TO AGREE."  /25/  TO SAVE THE ACT, THE PROPOSAL FOR
MUNICIPAL LIABILITY WAS GIVEN UP.  /26/ 

[[HC710'(ORIGINAL DOCUMENT PAGE 710)'  IT MAY BE THAT EVEN IN 1871
MUNICIPALITIES WHICH WERE SUBJECT TO SUIT UNDER STATE LAW DID NOT POSE
IN THE MINDS OF THE LEGISLATORS THE CONSTITUTIONAL PROBLEMS THAT CAUSED
THE DEFEAT OF THE PROPOSAL.  YET NEVERTHELESS THE PROPOSAL WAS REJECTED
IN TOTO, AND FROM THIS ACTION WE CANNOT INFER ANY CONGRESSIONAL INTENT
OTHER THAN TO EXCLUDE ALL MUNICIPALITIES--REGARDLESS OF WHETHER OR NOT
THEIR IMMUNITY HAS BEEN LIFTED BY STATE LAW--FROM THE CIVIL LIABILITY
CREATED IN THE ACT OF APRIL 20, 1871, AND ^ 1983.  /27/  THUS, ^ 1983
IS UNAVAILABLE TO THESE PETITIONERS INSOFAR AS THEY SEEK TO SUE THE
COUNTY.  AND IT, CANNOT BE USED TO ACCOMPLISH WHAT CONGRESS CLEARLY
REFUSED TO DO IN ENACTING ^ 1983. 

ACCORDINGLY, WE CONCLUDE THAT THE DISTRICT COURT PROPERLY GRANTED
THE MOTION TO DISMISS THE CAUSES OF ACTION BROUGHT AGAINST THE COUNTY
BY PETITIONERS UNDER ^ 1983 AND ^ 1988. 

        II 

ALTHOUGH UNABLE TO ESTABLISH A FEDERAL CAUSE OF ACTION AGAINST THE
COUNTY ON THE BASIS OF THE CALIFORNIA LAW IMPOSING VICARIOUS LIABILITY
ON A MUNICIPALITY FOR THE ACTIONS OF ITS OFFICERS THAT VIOLATE FEDERAL
CIVIL RIGHTS, PETITIONERS CONTEND THAT THE DISTRICT COURT NEVERTHELESS
HAD JURISDICTION TO HEAR THEIR STATE LAW CLAIMS OF VICARIOUS LIABILITY
AGAINST THE COUNTY UNDER THE DOCTRINE OF PENDENT JURISDICTION. 

[[HC711'(ORIGINAL DOCUMENT PAGE 711)' 

PETITIONERS RELY PRINCIPALLY UPON THE DECISION IN MINE WORKERS V.
GIBBS, 383 U.S. 715, 725 (1966), WHERE THE COURT ESCHEWED THE
"UNNECESSARILY GRUDGING" APPROACH OF HURN V. OURSLER, 289 U.S. 238
(1933), TO THE DOCTRINE OF PENDENT JURISDICTION.  GIBBS INVOLVED A SUIT
BROUGHT UNDER BOTH FEDERAL AND STATE LAW BY A CONTRACTOR TO RECOVER
DAMAGES ALLEGEDLY SUFFERED AS A RESULT OF A SECONDARY BOYCOTT IMPOSED
UPON IT BY A UNION.  THERE EXISTED INDEPENDENT FEDERAL JURISDICTION AS
TO THE FEDERAL CLAIM, BUT THERE WAS NO INDEPENDENT BASIS OF
JURISDICTION TO SUPPORT THE STATE LAW CLAIM.  NEVERTHELESS, THE COURT
CONCLUDED THAT FEDERAL COURTS COULD EXERCISE PENDENT JURISDICTION OVER
THE STATE LAW CLAIM. 

IN DECIDING THE QUESTION OF PENDENT JURISDICTION, THE GIBBS COURT
INDICATED THAT THERE WERE TWO DISTINCT ISSUES TO BE CONSIDERED.  FIRST,
THERE IS THE ISSUE OF JUDICIAL POWER TO HEAR THE PENDENT CLAIM.  IN
THIS RESPECT THE COURT INDICATED THAT THE REQUISITE "POWER" EXISTS 

"WHENEVER THERE IS A CLAIM 'ARISING UNDER (THE) CONSTITUTION, THE
LAWS OF THE UNITED STATES, AND TREATIES MADE, OR WHICH SHALL BE MADE,
UNDER THEIR AUTHORITY . . . ,' U.S. CONST., ART. III, ^ 2, AND THE
RELATIONSHIP BETWEEN THAT CLAIM AND THE STATE CLAIM PERMITS THE
CONCLUSION THAT THE ENTIRE ACTION BEFORE THE COURT COMPRISES BUT ONE
CONSTITUTIONAL 'CASE.'  THE FEDERAL CLAIM MUST HAVE SUBSTANCE
SUFFICIENT TO CONFER SUBJECT MATTER JURISDICTION ON THE COURT.  . . .
THE STATE AND FEDERAL CLAIMS MUST DERIVE FROM A COMMON NUCLEUS OF
OPERATIVE FACT.  BUT IF, CONSIDERED WITHOUT REGARD TO THEIR FEDERAL OR
STATE CHARACTER, A PLAINTIFF'S CLAIMS ARE SUCH THAT HE WOULD ORDINARILY
BE EXPECTED TO TRY THEM ALL IN ONE JUDICIAL PROCEEDING, THEN, ASSUMING
SUBSTANTIALITY OF THE FEDERAL ISSUES, THERE IS POWER IN FEDERAL COURTS
TO HEAR THE WHOLE."  ID., AT 725 (FOOTNOTES OMITTED). 

[[HC712'(ORIGINAL DOCUMENT PAGE 712)' 

YET EVEN IF THERE EXISTS POWER TO HEAR THE PENDENT CLAIM, "(IT HAS
CONSISTENTLY BEEN RECOGNIZED THAT PENDENT JURISDICTION IS A DOCTRINE OF
DISCRETION, NOT OF PLAINTIFF'S RIGHT.  ITS JUSTIFICATION LIES IN
CONSIDERATIONS OF JUDICIAL ECONOMY, CONVENIENCE AND FAIRNESS TO
LITIGANTS; IF THESE ARE NOT PRESENT A FEDERAL COURT SHOULD HESITATE TO
EXCERISE JURISDICTION OVER STATE CLAIMS, EVEN THOUGH BOUND TO APPLY
STATE LAW TO THEM.  . . ."  ID., AT 726.  BY WAY OF EXPLANATION OF THE
CONSIDERATIONS WHICH SHOULD INFORM A DISTRICT COURT'S DISCRETION, THE
COURT IN GIBBS SUGGESTED, INTER ALIA, THAT "(NEEDLESS DECISIONS OF
STATE LAW SHOULD BE AVOIDED BOTH AS A MATTER OF COMITY AND TO PROMOTE
JUSTICE BETWEEN THE PARTIES, BY PROCURING FOR THEM A SURER-FOOTED
READING OF APPLICABLE LAW,"  IBID., AND THAT "REASONS INDEPENDENT OF
JURISDICTIONAL CONSIDERATIONS, SUCH AS THE LIKELIHOOD OF JURY CONFUSION
IN TREATING DIVERGENT LEGAL THEORIES OF RELIEF, (MAY) JUSTIFY
SEPARATING STATE AND FEDERAL CLAIMS FOR TRIAL," ID., AT 727.  IN GIBBS,
THE COURT FOUND THAT THE EXERCISE OF PENDENT JURISDICTION OVER THE
STATE LAW CLAIMS WAS PROPER BOTH AS A MATTER OF POWER AND DISCRETION. 

IN THESE CASES, THERE IS NO QUESTION THAT PETITIONERS' COMPLAINTS
STATED SUBSTANTIAL FEDERAL CAUSES OF ACTION AGAINST THE INDIVIDUAL
DEFENDANTS UNDER 42 U.S.C. ^ 1983.  SEE MONROE V. PAPE, 365 U.S. 167
(1961).  NOR IS THERE ANY DISPUTE THAT THE FEDERAL CLAIMS AGAINST THE
INDIVIDUAL DEFENDANTS AND THE STATE CLAIMS AGAINST THE INDIVIDUAL
DEFENDANTS MAY BE SAID TO INVOLVE "A COMMON NUCLEUS OF OPERATIVE
FACT."  BUT, BEYOND THIS, THERE IS A SIGNIFICANT DIFFERENCE BETWEEN
GIBBS AND THESE CASES. 

[[HC713'(ORIGINAL DOCUMENT PAGE 713)'  FOR THE EXERCISE OF PENDENT
JURISDICTION OVER THE CLAIMS AGAINST THE COUNTY WOULD REQUIRE US TO
BRING AN ENTIRELY NEW PARTY--A NEW DEFENDANT--INTO EACH LITIGATION. 
GIBBS, OF COURSE, INVOLVED NO SUCH PROBLEM OF A "PENDENT PARTY,"  /25/
THAT IS, OF THE ADDITION OF A PARTY WHICH IS IMPLICATED IN THE
LITIGATION ONLY WITH RESPECT TO THE PENDENT STATE LAW CLAIM AND NOT
ALSO WITH RESPECT TO ANY CLAIM AS TO WHICH THERE IS AN INDEPENDENT
BASIS OF FEDERAL JURISDICTION.  FACED WITH THIS DISTINCTION, THE COURTS
BELOW CONCLUDED THAT THE EXERCISE OF PENDENT JURISDICTION IN THE
CONTEXT OF THESE CASES WAS INAPPROPRIATE AS A MATTER OF BOTH JUDICIAL
POWER AND DISCRETION. 

AS TO THE QUESTION OF JUDICIAL POWER, THE DISTRICT COURT AND COURT
OF APPEALS CONSIDERED THEMSELVES BOUND BY THE NINTH CIRCUIT'S PREVIOUS
DECISION IN HYMER V. CHAI, 407 F.2D 136 (1969), WHEREIN THE COURT
REFUSED TO PERMIT THE JOINDER OF A PENDENT PLAINTIFF.  PETITIONERS
VIGOROUSLY ATTACK THE DECISION IN HYMER AS AT ODDS WITH THE CLEAR TREND
OF LOWER FEDERAL COURT AUTHORITY SINCE THIS COURT'S DECISION IN GIBBS. 
IT IS TRUE THAT NUMEROUS DECISIONS THROUGHOUT THE COURTS OF APPEALS
SINCE GIBBS HAVE RECOGNIZED THE EXISTENCE OF JUDICIAL POWER TO HEAR
PENDENT CLAIMS INVOLVING PENDENT PARTIES WHERE "THE ENTIRE ACTION
BEFORE THE COURT COMPRISES BUT ONE CONSTITUTIONAL 'CASE'" AS DEFINED IN
GIBBS.  /29/  HYMER STANDS VIRTUALLY ALONE AGAINST THIS POST-GIBBS
TREND IN THE COURTS OF APPEALS, /30/  AND SIGNIFICANTLY HYMER WAS
LARGELY BASED ON THE COURT OF APPEALS' EARLIER DECISION IN KATAOKA V.
MAY DEPARTMENT STORES CO., 115 F.2D 521 (CA9 1940), A DECISION WHICH
PREDATED GIBBS AND THE EXPANSION OF THE CONCEPT OF PENDENT JURISDICTION
BEYOND THE NARROW LIMITS SET BY HURN V. OURSLER, SUPRA. 

[[HC714'(ORIGINAL DOCUMENT PAGE 714)'  MOREOVER, THE EXERCISE OF
FEDERAL JURISDICTION OVER CLAIMS AGAINST PARTIES AS TO WHOM THERE
EXISTS NO INDEPENDENT BASIS FOR FEDERAL JURISDICTION FINDS SUBSTANTIAL
ANALOGUES IN THE JOINDER OF NEW PARTIES UNDER THE WELL-ESTABLISHED
DOCTRINE OF ANCILLARY JURISDICTION IN THE CONTEXT OF COMPULSORY
COUNTERCLAIMS UNDER FED. RULES CIV. PROC. 13 (A) AND 13 (H), /31/  AND
IN THE CONTEXT OF THIRD-PARTY CLAIMS UNDER FED. RULE CIV. PROC. 14
(A).  /32/ 

[[HC715'(ORIGINAL DOCUMENT PAGE 715)'  AT THE SAME TIME, THE COUNTY
COUNSELS THAT THE COURT SHOULD NOT BE QUICK TO SWEEP STATE LAW CLAIMS
AGAINST AN ENTIRELY NEW PARTY WITHIN THE JURISDICTION OF THE LOWER
FEDERAL COURTS WHICH ARE COURTS OF LIMITED JURISDICTION--A JURISDICTION
SUBJECT, WITHIN THE LIMITS OF THE CONSTITUTION, TO THE WILL OF
CONGRESS, NOT THE COURTS.  /33/  WHETHER THERE EXISTS JUDICIAL POWER TO
HEAR THE STATE LAW CLAIMS AGAINST THE COUNTY IS, IN SHORT, A SUBTLE AND
COMPLEX QUESTION WITH FAR-REACHING IMPLICATIONS.  BUT WE DO NOT
CONSIDER IT APPROPRIATE TO RESOLVE THIS DIFFICULT ISSUE IN THE PRESENT
CASE, FOR WE HAVE CONCLUDED THAT EVEN ASSUMING, ARGUENDO, THE EXISTENCE
OF POWER TO HEAR THE CLAIM, THE DISTRICT COURT, IN EXERCISE OF ITS
LEGITIMATE DISCRETION, PROPERLY DECLINED TO JOIN THE CLAIMS AGAINST THE
COUNTY IN THESE SUITS.     THE DISTRICT COURT INDICATED, AND THE COURT
OF APPEALS AGREED, THAT EXERCISE OF JURISDICTION OVER THE STATE LAW
CLAIMS WAS INAPPROPRIATE FOR AT LEAST TWO REASONS.  FIRST, THE DISTRICT
COURT POINTED OUT THAT IT "WOULD BE CALLED UPON TO RESOLVE DIFFICULT
QUESTIONS OF CALIFORNIA LAW UPON WHICH STATE COURT DECISIONS ARE NOT
LEGION."  /34/ 

[[HC716'(ORIGINAL DOCUMENT PAGE 716)'  IN ADDITION, THE COURT FELT
THAT "WITH THE INTRODUCTION OF A CLAIM AGAINST THE COUNTY UNDER THE
CALIFORNIA TORT CLAIMS ACT, WITH THE SPECIAL DEFENSES AVAILABLE TO THE
COUNTY, THE CASE" WHICH WILL BE TRIED TO A JURY, "COULD BECOME UNDULY
COMPLICATED."  /35/  AS IS EVIDENT FROM THIS COURT'S DECISION IN GIBBS,
383 U.S., AT 726 - 727, THE UNSETTLED NATURE OF STATE LAW AND THE
LIKELIHOOD OF JURY CONFUSION WERE ENTIRELY APPROPRIATE FACTORS FOR THE
DISTRICT COURT TO CONSIDER.  AND THOSE FACTORS HAD TO BE WEIGHED BY THE
DISTRICT COURT AGAINST THE ECONOMY WHICH MIGHT BE ACHIEVED BY TRYING
THE PETITIONERS' CLAIMS AGAINST BOTH THE POLICE AND THE COUNTY IN
SINGLE PROCEEDINGS.  IN LIGHT OF THE BROAD DISCRETION WHICH DISTRICT
COURTS MUST BE GIVEN IN EVALUATING SUCH MATTERS, WE CANNOT SAY THAT THE
DISTRICT JUDGE IN THESE CASES STRUCK THE BALANCE IMPROPERLY.  /36/  WE
THEREFORE HOLD THAT THE DISTRICT COURT DID NOT ERR, AS A MATTER OF
DISCRETION, IN REFUSING TO EXERCISE PENDENT JURISDICTION OVER
PETITIONERS' CLAIMS AGAINST THE COUNTY. 

[[HC717'(ORIGINAL DOCUMENT PAGE 717)'

        III 

THERE REMAINS, HOWEVER, THE QUESTION WHETHER THE DISTRICT COURT HAD
JURISDICTION OVER PETITIONER MOOR'S STATE LAW CLAIM AGAINST THE COUNTY
ON THE BASIS OF DIVERSITY OF CITIZENSHIP, 28 U.S.C. ^ 1332 (A). 
PETITIONER MOOR, A CITIZEN OF ILLINOIS, CONTENDS THAT THE COUNTY IS A
CITIZEN OF CALIFORNIA FOR THE PURPOSES OF FEDERAL DIVERSITY
JURISDICTION.  THE DISTRICT COURT CONCLUDED OTHERWISE, HOWEVER.  FOR
WHILE ACKNOWLEDGING THAT THERE EXISTS A SUBSTANTIAL BODY OF CONTRARY
AUTHORITY, IT CONSIDERED ITSELF "BOUND TO RECOGNIZE AND ADHERE TO THE
NINTH CIRCUIT DECISIONS WHICH HOLD THAT CALIFORNIA COUNTIES AND OTHER
SUBDIVISIONS OF THE STATE ARE NOT 'CITIZENS' FOR DIVERSITY PURPOSES,"
/37/  SEE MILLER V. COUNTY OF LOS ANGELES, 341 F.2D 964 (CA9 1965);
LOWE V. MANHATTAN BEACH CITY SCHOOL DIST., 222 F.2D 258 (CA9 1955). 
NOT SURPRISINGLY, THE COURT OF APPEALS ALSO ADHERED TO ITS PRIOR
PRECEDENTS. 

THERE IS NO QUESTION THAT A STATE IS NOT A "CITIZEN" FOR PURPOSES OF
THE DIVERSITY JURISDICTION.  THAT PROPOSITION HAS BEEN ESTABLISHED AT
LEAST SINCE THIS COURT'S DECISION IN POSTAL TELEGRAPH CABLE CO. V.
ALABAMA, 155 U.S. 482, 487 (1894).  SEE ALSO MINNESOTA V. NORTHERN
SECURITIES CO., 194 U.S. 48, 63 (1904).  AT THE SAME TIME, HOWEVER,
THIS COURT HAS RECOGNIZED THAT A POLITICAL SUBDIVISION OF A STATE,
UNLESS IT IS SIMPLY "THE ARM OR ALTER EGO OF THE STATE,"  /38/  IS A
CITIZEN OF THE STATE FOR DIVERSITY PURPOSES. 

[[HC718'(ORIGINAL DOCUMENT PAGE 718)'  SEE, E.G., BULLARD V. CITY OF
CISCO, 290 U.S. 179 (1933); LOEB V. COLUMBIA TOWNSHIP TRUSTEES, 179
U.S. 472, 485 - 486 (1900); CHICOT COUNTY V. SHERWOOD, 148 U.S. 529,
533 - 534 (1893); LINCOLN COUNTY V. LUNING, 133 U.S. 529 (1890); COWLES
V. MERCER COUNTY, 7 WALL.  118 (1869).  THE ORIGINAL SOURCE OF THIS
LATTER PRINCIPLE WAS THE RULE THAT CORPORATIONS ARE CITIZENS OF THE
STATE IN WHICH THEY ARE FORMED, AND ARE SUBJECT AS SUCH TO THE
DIVERSITY JURISDICTION OF THE FEDERAL COURTS.  /39/  SEE, E.G.,
LOUISVILLE, C. & C.R. CO. V. LETSON, 2 HOW.  497, 558 - 559 (1844);
BARROW S.S. CO. V. KANE, 170 U.S. 100, 106 (1898).  THUS, IN THE
SEMINAL CASE OF COWLES V. MERCER COUNTY, SUPRA, THE COURT HELD WITHOUT
HESITATION THAT AN ILLINOIS COUNTY, WHICH UNDER ILLINOIS LAW WAS A
"BODY POLITIC AND CORPORATE" AND HAD BEEN AUTHORIZED TO SUE AND BE
SUED, WAS SUBJECT TO FEDERAL DIVERSITY JURISDICTION AS A CITIZEN OF THE
STATE OF ILLINOIS.  /40/  THE PRINCIPLE FIRST ANNOUNCED IN COWLES HAS
BECOME SO FIRMLY ROOTED IN FEDERAL LAW THAT WE WERE ABLE TO SAY ONLY
LAST TERM THAT "(IT IS WELL SETTLED THAT FOR PURPOSES OF DIVERSITY OF
CITIZENSHIP, POLITICAL SUBDIVISIONS ARE CITIZENS OF THEIR RESPECTIVE
STATES.  . . ."  ILLINOIS V. CITY OF MILWAUKEE, 406 U.S. 91, 97
(1972). 

THE COUNTY IN THIS CASE CONTENDS, HOWEVER, THAT UNLIKE THE COUNTIES
OF MOST STATES, IT IS NOT A MUNICIPAL CORPORATION OR AN OTHERWISE
INDEPENDENT POLITICAL SUBDIVISION, BUT THAT IT IS, UNDER CALIFORNIA
LAW, NOTHING MORE THAN AN AGENT OR A MERE ARM OF THE STATE ITSELF. 

[[HC719'(ORIGINAL DOCUMENT PAGE 719)'  IN PARTICULAR, THE COUNTY
CITES TO US ART. 11, ^ 1 (A), OF THE CALIFORNIA CONSTITUTION WHICH
PROVIDES THAT "(THE STATE IS DIVIDED INTO COUNTIES WHICH ARE LEGAL
SUBDIVISIONS OF THE STATE."  THE COUNTY THUS APPARENTLY BELIEVES ITS
STATUS, FOR PURPOSES OF THE DIVERSITY JURISDICTION, TO BE GOVERNED BY
POSTAL TELEGRAPH CABLE RATHER THAN BY COWLES AND ITS PROGENY.  DESPITE
THE COUNTY'S CONTENTIONS, A DETAILED EXAMINATION OF THE RELEVANT
PROVISIONS OF CALIFORNIA LAW--BEYOND SIMPLY THE GENERALIZATION
CONTAINED IN ART. 11, ^ 1, OF THE STATE CONSTITUTION--CONVINCES US THAT
THE COUNTY CANNOT BE DEEMED A MERE AGENT OF THE STATE OF CALIFORNIA. 

MOST NOTABLY, UNDER CALIFORNIA LAW A COUNTY IS GIVEN "CORPORATE
POWERS"  /41/  AND IS DESIGNATED A "BODY CORPORATE AND POLITIC."  /42/
IN THIS CAPACITY, A COUNTY MAY SUE AND BE SUED, /43/  AND,
SIGNIFICANTLY FOR PURPOSES OF SUIT, IT IS DEEMED TO BE A "LOCAL PUBLIC
ENTITY"  /44/  IN CONTRAST TO THE STATE AND STATE AGENCIES.  /45/  IN
ADDITION, THE COUNTY, AND FROM ALL THAT APPEARS THE COUNTY ALONE, /46/
IS LIABLE FOR ALL JUDMENTS AGAINST IT AND IS AUTHORIZED TO LEVY TAXES
TO PAY SUCH JUDGMENTS.  /47/  A CALIFORNIA COUNTY MAY ALSO SELL, HOLD,
OR OTHERWISE DEAL IN PROPERTY, /48/  AND IT MAY CONTRACT FOR THE
CONSTRUCTION AND REPAIRS OF STRUCTURES.  /49/  THE COUNTIES ALSO ARE
AUTHORIZED TO PROVIDE A VARIETY OF PUBLIC SERVICES SUCH AS WATER
SERVICE, FLOOD CONTROL, RUBBISH DISPOSAL, AND HARBOR AND AIRPORT
FACILITIES.  /50/ 

[[HC720'(ORIGINAL DOCUMENT PAGE 720)'  FINANCIALLY, THE COUNTIES ARE
EMPOWERED TO ISSUE GENERAL OBLIGATION BONDS /51/  PAYABLE FROM COUNTY
TAXES.  /52/  SUCH BONDS CREATE NO OBLIGATION ON THE PART OF THE STATE,
EXCEPT THAT THE STATE IS AUTHORIZED TO INTERVENE AND TO IMPOSE COUNTY
TAXES TO PROTECT THE BONDHOLDERS IF THE COUNTY FAILS TO FULFILL ITS
OBLIGATIONS VOLUNTARILY.  /53/  IN SUM, THESE PROVISIONS STRIKE US AS
PERSUASIVE INDICIA OF THE INDEPENDENT STATUS OCCUPIED BY CALIFORNIA
COUNTIES RELATIVE TO THE STATE OF CALIFORNIA. 

BUT EVEN IF OUR OWN EXAMINATION WERE NOT SUFFICIENT FOR PRESENT
PURPOSES, WE HAVE THE CLEAREST INDICATION POSSIBLE FROM CALIFORNIA'S
SUPREME COURT OF THE STATUS OF CALIFORNIA'S COUNTIES.  IN PEOPLE EX
REL. YOUNGER V. COUNTY OF EL DORADO, 5 CAL. 3D 480, 487 P.2D 1193
(1971), THE ATTORNEY GENERAL OF THE STATE SOUGHT A WRIT OF MANDATE
AGAINST TWO CALIFORNIA COUNTIES TO COMPEL THEM TO PAY OUT CERTAIN
ALLOTTED MONIES.  UNDER STATE LAW, SUCH A WRIT MAY BE ISSUED ONLY TO
ANY "INFERIOR TRIBUNAL, CORPORATION, BOARD, OR PERSON."  CAL. CIV.
PROC. CODE 1085.  IN HOLDING THAT THE WRIT COULD BE ISSUED AGAINST THE
COUNTIES, THE CALIFORNIA SUPREME COURT SAID: 

"WHILE IT HAS BEEN SAID THAT COUNTIES ARE NOT MUNICIPAL CORPORATIONS
BUT ARE POLITICAL SUBDIVISIONS OF THE STATE FOR PURPOSES OF GOVERNMENT
. . . , COUNTIES HAVE ALSO BEEN DECLARED PUBLIC CORPORATIONS OR QUASI
CORPORATIONS.  . . . IN VIEW OF GOVERNMENT CODE SECTION 23003, WHICH
PROVIDES THAT A COUNTY IS 'A BODY CORPORATE AND (POLITIC),'  AND
COUNTIES MAY SUE AND BE SUED, WE THINK THAT A COUNTY IS SUFFICIENTLY
CORPORATE IN CHARACTER TO JUSTIFY THE ISSUANCE OF A WRIT OF MANDATE TO
IT." 

[[HC721'(ORIGINAL DOCUMENT PAGE 721)'

5 CAL. 3D, AT 491 N.12, 487 P.2D, AT 1199 N.12. 

SEE ALSO PITCHESS V. SUPERIOR COURT, 2 CAL. APP. 3D 653, 656, 83
CAL. RPTR.  41, 43 (1969). 

WE DO NOT LIGHTLY REJECT THE COURT OF APPEALS' PREVIOUS CONCLUSION
THAT CALIFORNIA COUNTIES ARE MERELY PART OF THE STATE ITSELF AND AS
SUCH ARE NOT CITIZENS OF THE STATE FOR DIVERSITY PURPOSES.  /54/  BUT
IN LIGHT OF BOTH THE HIGHEST STATE COURT'S RECENT DETERMINATION OF THE
CORPORATE CHARACTER OF COUNTIES AND OUR OWN EXAMINATION OF RELEVANT
CALIFORNIA LAW, WE MUST CONCLUDE THAT THIS COUNTY HAS A SUFFICIENTLY
INDEPENDENT CORPORATE CHARACTER TO DICTATE THAT IT BE TREATED AS A
CITIZEN OF CALIFORNIA UNDER OUR DECISION IN COWLES V. MERCER COUNTY,
SUPRA. 

THUS, WE HOLD THAT PETITIONER MOOR'S STATE LAW CLAIM AGAINST THE
COUNTY IS WITHIN THE DIVERSITY JURISDICTION. 

[[HC722'(ORIGINAL DOCUMENT PAGE 722)'  ACCORDINGLY, WE REVERSE THE
JUDGMENT OF THE COURT OF APPEALS IN THIS RESPECT AND REMAND THIS CASE
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  NAMED AS PLAINTIFFS IN THE RUNDLE CASE IN ADDITION TO
PETITIONER WILLIAM D. RUNDLE, JR., WERE HIS GUARDIAN AD LITEM, WILLIAM
D. RUNDLE AND SARAH RUNDLE.  WILLIAM D. RUNDLE AND SARAH RUNDLE ARE
ALSO PETITIONERS HERE, BUT FOR EASE OF DISCUSSION WE WILL REFER SIMPLY
TO PETITIONER RUNDLE. 

/2/  NEITHER COMPLAINT SPECIFICALLY STATES ANY CLAIM FOR EQUITABLE
RELIEF.  FURTHERMORE, THE COMPLAINTS CONTAIN NO ALLEGATIONS OF AN ON
GOING COURSE OF CONDUCT, IRREPARABLE INJURY, INADEQUACY OF LEGAL
REMEDY, OR OTHER SIMILAR ALLEGATIONS GENERALLY FOUND IN COMPLAINTS
SEEKING EQUITABLE RELIEF.  THROUGHOUT THE COURSE OF THIS LITIGATION THE
PETITIONERS HAVE GIVEN NO INDICATION THAT THEY SEEK EQUITABLE, AS WELL
AS LEGAL, RELIEF.  BEFORE THIS COURT THE PETITIONERS STATE NOTHING MORE
THAN THE "(PLAINTIFFS IN BOTH CASES SEEK DAMAGES FROM THE DEFENDANTS. 
. . ."  BRIEF FOR PETITIONERS 4.  THEREFORE, THE QUESTION ON WHICH OUR
BROTHER DOUGLAS HINGES HIS DISSENT--NAMELY, WHETHER A MUNICIPALITY MAY
BE SUED FOR EQUITABLE RELIEF UNDER ^ 1983--SIMPLY IS NOT PRESENTED
HERE. 

/3/  ALTHOUGH THE COUNTY VIGOROUSLY DISPUTES THE PETITIONERS'
CONSTRUCTION OF ^ 815.2 (A) OF THE CALIFORNIA TORT CLAIMS ACT, WE DO
NOT PASS UPON THE PARTIES' CONFLICTING CONSTRUCTIONS SINCE THE QUESTION
WAS NOT DECIDED BY EITHER OF THE COURTS BELOW. 

/4/  IN THEIR COMPLAINTS, PETITIONERS ALSO ASSERTED CAUSES OF ACTION
UNDER 42 U.S.C. ^^ 1981 AND 1986.  BUT BEFORE THIS COURT PETITIONERS
HAVE RESTRICTED THEIR ARGUMENTS TO ^^ 1983 AND 1988.  HENCE, ONLY THOSE

/5/  PETITIONER RUNDLE ALLEGED IN HIS COMPLAINT THAT HE WAS A
CITIZEN OF CALIFORNIA, AND THEREFORE HE WAS UNABLE TO ASSERT
JURISDICTION OVER HIS STATE LAW CLAIMS ON THE BASIS OF DIVERSITY OF
CITIZENSHIP. 

/6/  SEE ANSWER TO COMPLAINT, MOOR V. MADIGAN, APP. 12; ANSWER TO
COMPLAINT, RUNDLE V. MADIGAN, APP. 29. 

/7/  SUBSEQUENT TO THIS DECISION WITH RESPECT TO THE COUNTY, THE
DISTRICT COURT DENIED THE INDIVIDUAL DEFENDANTS' MOTION TO DISMISS OR,
IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT.  THE DISTRICT COURT ALSO
DENIED PETITIONERS' MOTION FOR SUMMARY JUDGMENT.  SEE EX. A TO REPLY
BRIEF FOR PETITIONERS. 

/8/  SEE 42 U.S.C. ^ 1981 ET SEQ. 

/9/  SECTION 1983 PROVIDES: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

/10/  SEE, E.G., KATES & KOUBA, LIABILITY OF PUBLIC ENTITIES UNDER
157 (1972); NOTE, PHILADELPHIA POLICE PRACTICE AND THE LAW OF ARREST,
100 U. PA. L. REV. 1182, 1208 - 1209 (1952); CF. LANKFORD V. GELSTON,
364 F.2D 197, 202 (CA4 1966). 

BEFORE THIS COURT THE PARTIES HAVE DISAGREED AS TO THE EXTENT OF THE
INDIVIDUAL DEFENDANTS' PERSONAL ASSETS AND INSURANCE THAT MIGHT BE
AVAILABLE TO SATISFY ANY FAVORABLE FINAL JUDGMENT WHICH PETITIONERS
MIGHT ULTIMATELY OBTAIN.  SEE BRIEF FOR RESPONDENTS 15; TR. OR ORAL
ARG. 25; ID., AT 50 - 51.  IN LIGHT OF OUR CONCLUSION AS TO THE LIMITED
FUNCTION OF ^ 1988 IN THE SCHEME OF FEDERAL CIVIL RIGHTS LEGISLATION WE
HAVE NO OCCASION HERE TO PASS UPON THE ADEQUACY OF THE RELIEF AVAILABLE
AGAINST THE INDIVIDUAL DEFENDANTS. 

/11/  A READY EXAMPLE OF SUCH FEDERAL ADOPTION OF STATE LAW IS TO BE
FOUND IN THE FEDERAL TORT CLAIMS ACT UNDER WHICH THE UNITED STATES IS
MADE LIABLE FOR CERTAIN TORTS OF ITS EMPLOYEES IN ACCORDANCE WITH
RELEVANT STATE LAW.  SEE 28 U.S.C. ^^ 1346 (B); 2671 - 2680.  SEE ALSO
RICHARDS V. UNITED STATES, 369 U.S. 1, 6 - 10 (1962).  STILL OTHER
EXAMPLES ARE THE OUTER CONTINENTAL SHELF LANDS ACT, 43 U.S.C. ^^ 1331 -
1343, AND THE PROVISIONS OF THE ASSIMILATIVE CRIMES ACT WHICH PROVIDES
FOR PUNISHMENT AS FEDERAL CRIMES OF ACTS, COMMITTED WITHIN THE MARITIME
OR TERRITORIAL JURISDICTION OF THE UNITED STATES, THAT WOULD HAVE BEEN
PUNISHABLE AS A CRIME UNDER THE LAWS OF THE STATE, TERRITORY, OR
DISTRICT WHERE COMMITTED, 18 U.S.C. ^^ 7, 11. 

/12/  HENCE, THIS IS A WHOLLY DIFFERENT CASE FROM THOSE IN WHICH,
LACKING ANY CLEAR EXPRESSION OF CONGRESSIONAL WILL, WE HAVE BEEN CALLED
UPON TO DECIDE WHETHER IT IS APPROPRIATE TO LOOK TO STATE LAW OR TO
FASHION A SINGLE FEDERAL RULE IN ORDER TO FILL THE INTERSTICES OF
FEDERAL LAW.  SEE, E.G., UNITED STATES V. YAZELL, 382 U.S. 342 (1966);
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSN. V. PARNELL, 352 U.S. 29
(1956); HOLMBERG V. ARMBRECHT, 327 U.S. 392 (1946); CLEARFIELD TRUST
CO. V. UNITED STATES, 318 U.S. 363 (1943); D'OENCH, DUHME & CO. V.
FEDERAL DEPOSIT INS. CORP., 315 U.S. 447 (1942).     /13/  SEE, E.G.,
42 U.S.C. ^^ 1981, 1982, 1983, 1985.  SEE ALSO 18 U.S.C. ^^ 241 - 245. 

/14/  ONE SUCH PROBLEM HAS BEEN THE SURVIVAL OF CIVIL RIGHTS ACTIONS
UNDER ^ 1983 UPON THE DEATH OF EITHER THE PLAINTIFF OR DEFENDANT. 
ALTHOUGH AN INJURED PARTY'S PERSONAL CLAIM WAS EXTINGUISHED AT COMMON
LAW UPON THE DEATH OF EITHER THE INJURED PARTY HIMSELF OR THE ALLEGED
WRONGDOER, SEE W. PROSSER, TORTS 885 - 891 (4TH ED. 1971), IT HAS BEEN
HELD THAT PURSUANT TO ^ 1988 STATE SURVIVORSHIP STATUTES WHICH REVERSE
THE COMMON-LAW RULE MAY BE USED IN THE CONTEXT OF ACTIONS BROUGHT UNDER
^ 1983.  SEE, E.G., BRAZIER V. CHERRY, 293 F.2D 401 (CA5 1962);
PRITCHARD V. SMITH, 289 F.2D 153 (CA8 1961). 

/15/  SECTION 1982 PROVIDES: 

"ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT, IN
EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS THEREOF TO
INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL
PROPERTY." 

/16/  SEE ALSO MCDANIEL V. CARROLL, 457 F.2D 968 (CA6 1972), AND
CASES CITED N.14, SUPRA. 

/17/  WE KNOW OF NO LOWER COURT DECISION THAT HAS HELD OTHERWISE. 
TO THE CONTRARY, THE LOWER FEDERAL COURTS HAVE REPEATEDLY REJECTED THE
ARGUMENT ^ 1988 INDEPENDENTLY CREATES A FEDERAL CAUSE OF ACTION FOR THE
VIOLATION OF FEDERAL CIVIL RIGHTS.  SEE PIERRE V. JORDAN, 333 F.2D 951,
958 (CA9 1964); OTTO V. SOMERS, 332 F.2D 697, 699 (CA6 1964); POST V.
PAYTON, 323 F.SUPP.  799, 802 - 803 (EDNY 1971); (EDNY 1970), AFF'D 449
F.2D 871 (CA2 1971), VACATED AND REMANDED ON OTHER GROUNDS, 409 U.S. 75
(1972); DYER V. KAZUHISA ABE, 138 F.SUPP.  220, 228 - 229 (HAW.  1956),
REV'D ON OTHER GROUNDS, 256 F.2D 728 (CA9 1958); SCHATTE V.
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE
OPERATORS OF UNITED STATES AND CANADA, 70 F.SUPP.  1008 (SD CAL. 1947),
AFF'D, PER CURIAM, 165 F.2D 216 (CA9 1948); CF. IN RE STUPP, 23 F. CAS.
296, 299 (NO. 13,563) (CCSDNY 1875). 

PETITIONERS' RELIANCE IN THIS CASE UPON HESSLGESSER V. REILLY, 440
F.2D 901, 903 (CA9 1971), AND LEWIS V. BRAUTIGAM, 227 F.2D 124, 128
(CA5 1955), IS MISPLACED.  IN HESSELGESSER, THE COURT OF APPEALS RULED
THAT A SHERIFF COULD BE HELD VICARIOUSLY LIABLE IN DAMAGES FOR THE
WRONGFUL ACT OF HIS DEPUTY WHICH DEPRIVED A PRISONER OF HIS CIVIL
RIGHTS WHERE STATE LAW PROVIDED FOR SUCH VICARIOUS LIABILITY.  THE
COURT, TO BE SURE, FOUND AUTHORITY FOR THE INCORPORATION OF STATE LAW
INTO FEDERAL LAW IN ^ 1988, BUT IT WAS ACTING IN THE CONTEXT OF A SUIT
BROUGHT AGAINST THE SHERIFF ON THE BASIS OF ^ 1983.  LIKEWISE IN LEWIS,
WHERE A SHERIFF WAS HELD TO BE LIABLE FOR THE CIVIL RIGHTS VIOLATIONS
OF HIS DEPUTIES IN LIGHT OF STATE LAW WHICH IMPOSED SUCH LIABILITY--A
DECISION WHICH ALSO RESTED APPARENTLY UPON ^ 1988, ALTHOUGH THAT
BASED ON ^ 1983.  THESE DECISIONS SIMPLY DO NOT SUPPORT THE SUGGESTION
THAT ^ 1988 ALONE AUTHORIZES THE CREATION OF A FEDERAL CAUSE OF ACTION
AGAINST THE COUNTY.  AND HERE, AS DISCUSSED BELOW, ^ 1983 IS
UNAVAILABLE AS A BASIS FOR SUIT AGAINST THE COUNTY. 

/18/  AS ENACTED, ^ 3 READS, IN PART, AS FOLLOWS: 

"THAT THE DISTRICT COURTS OF THE UNITED STATES, WITHIN THEIR
RESPECTIVE DISTRICTS, SHALL HAVE, EXCLUSIVELY OF THE COURTS OF THE
SEVERAL STATES, COGNIZANCE OF ALL CRIMES AND OFFENCES COMMITTED AGAINST
THE PROVISIONS OF THIS ACT, AND ALSO, CONCURRENTLY WITH THE CIRCUIT
COURTS OF THE UNITED STATES, OF ALL CAUSES, CIVIL AND CRIMINAL,
AFFECTING PERSONS WHO ARE DENIED OR CANNOT ENFORCE IN THE COURTS OR
JUDICIAL TRIBUNALS OF THE STATE OF LOCALITY WHERE THEY MAY BE ANY OF
THE RIGHTS SECURED TO THEM BY THE FIRST SECTION OF THIS ACT.  . . . THE
JURISDICTION IN CIVIL AND CRIMINAL MATTERS HEREBY CONFERRED ON THE
DISTRICT AND CIRCUIT COURTS OF THE UNITED STATES SHALL BE EXERCISED AND
ENFORCED IN CONFORMITY WITH THE LAWS OF THE UNITED STATES, SO FAR AS
SUCH LAWS ARE SUITABLE TO CARRY THE SAME INTO EFFECT; BUT IN ALL CASES
WHERE SUCH LAWS ARE NOT ADAPTED TO THE OBJECT, OR ARE DEFICIENT IN THE
PROVISIONS NECESSARY TO FURNISH SUITABLE REMEDIES AND PUNISH OFFENCES
AGAINST LAW, THE COMMON LAW, AS MODIFIED AND CHANGED BY THE
CONSTITUTION AND STATUTES OF THE STATE WHEREIN THE COURT HAVING
JURISDICTION OF THE CAUSE, CIVIL OR CRIMINAL, IS HELD, SO FAR AS THE
SAME IS NOT INCONSISTENT WITH THE CONSTITUTION AND LAWS OF THE UNITED
STATES, SHALL BE EXTENDED TO AND GOVERN SAID COURTS IN THE TRIAL AND
DISPOSITION OF SUCH CAUSE, AND, IF OF A CRIMINAL NATURE, IN THE
INFLICTION OF PUNISHMENT ON THE PART FOUND GUILTY." 

/19/  FOLLOWING THE RATIFICATION OF THE FOURTEENTH AMENDMENT IN
1868, THE ACT OF APRIL 9, 1866, WAS RE-ENACTED WITHOUT CHANGE IN THE
ACT OF MAY 31, 1870, C. 114, ^ 18, 16 STAT. 144.  AT THE SAME TIME,
CONGRESS ENACTED WHAT IS NOW U.S.C. ^ 1981.  SEE ACT OF MAY 31, 1870,
C. 114, ^ 16, 16 STAT. 144.  SECTION 18 OF THE ACT ALSO PROVIDED THAT
THE PROVISION NOW CONTAINED IN ^ 1981 WAS TO BE ENFORCED IN ACCORDANCE
WITH THE PROVISIONS OF THE ACT OF APRIL 9, 1866.  THUS, CONGRESS AGAIN
DIRECTED MERELY THAT ^ 1988 WOULD GUIDE COURTS IN THE ENFORCEMENT OF A
PARTICULAR CAUSE OF ACTION, NAMELY, THAT CREATED IN ^ 1981.  SIMILARLY,
WHEN 42 U.S.C. ^ 1983 WAS FIRST ENACTED, IT WAS MADE "SUBJECT TO THE
SAME RIGHTS OF APPEAL, REVIEW UPON ERROR, AND OTHER REMEDIES PROVIDED
IN LIKE CASES . . . UNDER THE PROVISIONS OF THE ACT OF THE NINTH OF
APRIL, EIGHTEEN HUNDRED AND SIXTY-SIX.  . . ."  ACT OF APR. 20, 1871,
C.22, ^ 1, 17 STAT. 13.  CODIFICATION SAW ^ 1988 MADE INTO ^ 722 OF THE
REVISED STATUTES, WITH THE STATUTE BEING MADE GENERALLY APPLICABLE TO,
INTER ALIA, THE CIVIL RIGHTS PORTION OF THE REVISED STATUTES, SEE ^^
1977 - 1991. 

/20/  CONG. GLOBE, 42D CONG., 1ST SESS., 704 - 705 (1871).  THE
PROPOSED AMENDMENT IS QUOTED IN MONREO V. PAPE, 365 U.S. 167, 188 N.38
(1961). 

/21/  CONG. GLOBE, 42D CONG., 1ST SESS., 725 (1871). 

/22/  ID., AT 800 - 801.  THE VERSION PROPOSED BY THE CONFERENCE
COMMITTEE REPORT IS QUOTED IN MONROE V. PAPE, 365 U.S., AT 188 - 189,
N.41. 

/23/  THE ESSENCE OF THE POSITION TAKEN BY THE SUPPORTERS OF THE
PROVISION IMPOSING VICARIOUS LIABILITY ON LOCAL MUNICIPALITIES FOR
INJURIES SUFFERED DUE TO THE VIOLATION OF CIVIL RIGHTS WAS "THAT BY
MAKING THE WHOLE BODY OF CITIZENS INSURERS FOR THE VICTIMS YOU WILL
HAVE A SAFEGUARD WHICH NO POLICE ARRANGEMENT CAN MAKE, ONE MORE
EFFECTIVE THAN ANY OTHER.  . . ."  CONG. GLOBE, 42D CONG., 1ST SESS.,
794 (1871) (REMARKS OF REP. KELLEY).  SEE ALSO ID., AT 792 (REMARKS OF
REP. BUTLER).  AS TO GENERAL VIEW IN OPPOSITION, SEE ID., AT 788 - 789
(REMARKS OF REP. KERR); ID., AT 791 (REMARKS OF REP. WILLARD). 

/24/  FOR INSTANCE, REPRESENTATIVE KERR ARGUED: 

"I NOW COME TO INQUIRE IS IT COMPETENT FOR THE CONGRESS OF THE
UNITED STATES TO PUNISH MUNICIPAL ORGANIZATIONS OF THIS KIND IN THIS
WAY AT ALL, WITH OR WITHOUT NOTICE?  MY JUDGMENT IS THAT SUCH POWER
NOWHERE EXISTS; THAT IT CANNOT BE FOUND WITHIN THE LIMITS OF THE
CONSTITUTION; THAT ITS EXERCISE CANNOT BE JUSTIFIED BY ANY RATIONAL
CONSTRUCTION OF THAT INSTRUMENT.  I HOLD THAT THE CONSTITUTIONAL POWER
OF THE FEDERAL GOVERNMENT TO PUNISH THE CITIZENS OF THE UNITED STATES
FOR ANY OFFENSES PUNISHABLE BY IT AT ALL MAY BE EXERCISED AND EXHAUSTED
AGAINST THE INDIVIDUAL OFFENDER AND HIS PROPERTY; BUT WHEN YOU GO ONE
INCH BEYOND THAT YOU ARE COMPELLED, BY THE VERY NECESSITIES WHICH
SURROUND YOU, TO INVADE POWERS WHICH ARE SECURED TO THE STATES, WHICH
ARE A NECESSARY AND MOST ESSENTIAL PART OF THE AUTONOMY OF STATE
GOVERNMENTS, WITHOUT WHICH THERE CAN LOGICALLY BE NOT STATE
GOVERNMENT."  ID., AT 788. 

SIMILARLY, REPRESENTATIVE WILLARD EXPLAINED HIS OPPOSITION TO THE
AMENDMENT AS FOLLOWS: 

"NOW, SIR, THE CONSTITUTION HAS NOT IMPOSED, WE HAVE NOT BY THE
CONSTITUTION IMPOSED, ANY DUTY UPON A COUNTY, CITY, PARISH, OR ANY
OTHER SUBDIVISION OF A STATE, TO ENFORCE THE LAWS, TO PROVIDE
PROTECTION FOR THE PEOPLE, TO GIVE THEM EQUAL RIGHTS, PRIVILEGES, AND
IMMUNITIES.  THE CONSTITUTION HAS DECLARED THAT TO BE THE DUTY OF THE
STATE.  THE CONSTITUTION, IN EFFECT, SAYS THAT NO STATE SHALL DENY TO
ITS CITIZENS THE EQUAL PROTECTION OF THE LAWS, AND I UNDERSTAND THAT
THAT DECLARATION, THAT PROHIBITION, APPLIES ONLY TO THE STATES, SO FAR
AS POLITICAL OR MUNICIAPL ACTION IS CONCERNED.  BUT THE STATE, WITHIN
ITS BOUNDARIES, HAS THE CREATION AND THE CONTROL OF THE LAWS FOR THE
PROTECTION OF THE PEOPLE."  ID., AT 791. 

AND REPRESENTATIVE POLAND CONTENDED: 

"AS I UNDERSTAND THE THEORY OF OUR CONSTITUTION, THE NATIONAL
GOVERNMENT DEALS EITHER WITH STATES OR WITH INDIVIDUAL PERSONS.  SO FAR
AS WE ARE A NATIONAL GOVERNMENT IN THE STRICT SENSE WE DEAL WITH
PERSONS, WITH EVERY MAN WHO IS AN INHABITANT OF THE UNITED STATES, AS
IF THERE WERE NO STATES, TOWNS, OR COUNTIES; AS IF THE WHOLE COUNTRY
WERE IN ONE GENERAL MASS, WITHOUT ANY SUBDIVISIONS OF STATES, COUNTIES,
OR TOWNS.  WE DEAL WITH THEM AS CITIZENS OR INHABITANTS OF THIS GREAT
REPUBLIC.  WITH THESE LOCAL SUBDIVISIONS WE HAVE NOTHING TO DO.  WE CAN
IMPOSE NO DUTY UPON THEM; WE CAN IMPOSE NO LIABILITY UPON THEM IN ANY
MANNER WHATEVER."  ID., AT 793. 

SEE ALSO ID., AT 795 (REMARKS OF REP. BLAIR); ID., AT 798 (REMARKS OF
REP. BINGHAM). 

/25/  ID., AT 804. 

/26/  ALL REFERENCE TO MUNICIPAL LIABILITY WAS DELETED FROM THE
PROVISION SUBMITTED BY THE CONFERENCE COMMITTEE, AND IT WAS ENACTED AS
42 U.S.C. ^ 1986, WHICH IMPOSES LIABILITY UPON ANY PERSON WHO HAS
"KNOWLEDGE (OF) ANY OF THE WRONGS CONSPIRED TO BE DONE, AND MENTIONED
IN" 42 U.S.C. ^ 1985. 

/27/  PETITIONERS ARGUE THAT MERELY BECAUSE "CONGRESS (DID) NOT
INTEND, AS A MATTER OF FEDERAL LAW, TO IMPOSE VICARIOUS LIABILITY UPON
A PUBLIC ENTITY FOR VIOLATIONS OF THE CIVIL RIGHTS ACTS COMMITTED BY
THE ENTITY'S EMPLOYEES," IT DOES NOT FOLLOW "THAT CONGRESS ALSO
INTENDED TO PRECLUDE A STATE FROM IMPOSING SUCH VICARIOUS LIABILITY AS
A MATTER OF STATE LAW."  REPLY BRIEF FOR PETITIONERS 4 - 5.  CERTAINLY
THIS HERE IS ULTIMATELY WHAT CONGRESS INTENDED FEDERAL LAW TO BE, AND,
AS PETITIONERS THEMSELVES RECOGNIZE, CONGRESS DID NOT INTEND, AS A
MATTER OF FEDERAL LAW, TO IMPOSE VICARIOUS LIABILITY ON MUNICIPALITIES
FOR VIOLATIONS OF FEDERAL CIVIL RIGHTS BY ITS EMPLOYEES. 

/28/  SEE GENERALLY NOTE, UMW V. GIBBS AND PENDENT JURISDICTION, 81
HARV. L. REV. 657, 662 - 664 (1968). 

/29/  SEE ALMENARES V. WYMAN, 453 F.2D 1075, 1083 - 1085 (CA2 1971);
LEATHER'S BEST, INC. V. S.S. MORMACLYNX, 451 F.2D 800, 809 - 810 (CA2
1971); NELSON V. KEEFER, 451 F.2D 289, 291 (CA3 1971); ASTOR-HONOR,
INC. V. GROSSET & DUNLAP, INC. 441 F.2D 627 (CA2 1971); F.C. STILES
CONTRACTING CO. V. HOME INSURANCE CO., 431 F.2D 917, 919 - 920 (CA6
1970); BEAUTYTUFT, INC. V. FACTORY INS. ASSN., 431 F.2D 1122, 1128 (CA6
1970); HATRIDGE V. AETNA CASUALTY & SURETY CO., 415 F.2D 809, 816 - 817
(CA8 1969); STONE V. STONE, 405 F.2D 94 (CA4 1968); CONNECTICUT GENERAL
LIFE INS. CO. V. CRATON, 405 F.2D 41, 48 (CA5 1968); JACOBSON V.
ATLANTIC CITY HOSPITAL, 392 F.2D 149, 153 - 154 (CA3 1968); WILSON V.
AMERICAN CHAIN & CABLE CO., 364 F.2D 558, 564 (CA3 1966).  SEE ALSO,
E.G., EIDSCHUN V. PIERCE, 335 F.SUPP.  603, 609 - 610 (SD IOWA 1971);
THOMAS V. OLD FORGE COAL CO., 329 F.SUPP.  1000 (MD PA. 1966); JOHNS
MANVILLE SALES CORP. V. CHICAGO TITLE & TRUST CO., 261 F.SUPP.  905,
907 - 908 (ND ILL. 1966); MORRIS V. GIMBEL BROTHERS, INC. 246 F.SUPP. 
984 (ED PA. 1965).  ON OCCASION, DECISIONS OF DISTRICT COURTS REFUSING
TO EXERCISE JURISDICTION OVER CLAIMS AGAINST PENDENT PARTIES HAVE BEEN
SUSTAINED ON APPEAL SIMPLY ON THE GROUND THAT THE DECISIONS WERE NOT AN
ABUSE OF DISCRETION.  SEE PATRUM V. CITY OF GREENSBURG, 419 F.2D 1300,
1302 (CA6 1969); WILLIAMS V. UNITED STATES, 405 F.2D 951, 955 (CA9
1969). 

/30/  THE ONLY COURT OF APPEALS DECISION OUTSIDE OF THE NINTH
CIRCUIT CITED TO US BY THE COUNTY IN SUPPORT OF ITS POSITION IS WOJTAS
V. VILLAGE OF NILES, 334 F.2D 797 (CA7 1964), A DECISION WHICH PRECEDED
THE EXPANSION OF PENDENT JURISDICTION IN MINE WORKERS V. GIBBS.  A
NUMBER OF DISTRICT COURTS, HOWEVER, HAVE REFUSED TO RELYING ON WOJTAS
AND/OR HYMER V. CHAI.  SEE, E.G., REDDEN V. CINCINNATI, INC., 347
F.SUPP.  1229, 1231 (ND GA. 1972); PAYNE FAULKNER, 327 F.SUPP.  1190
(ND OKLA. 1971); LETMATE V. BALTIMORE & O.R. CO., 311 F.SUPP.  1059,
1060 - 1062 (MD. 1970); TUCKER V. SHAW, 308 F.SUPP.  1, 9 - 10 (EDNY
1970); HALL V. PACIFIC MARITIME ASSN., 281 F.SUPP.  54, 61 (ND CAL.
1968); ROSENTHAL & ROSENTHAL, INC. V. AETNA CASUALTY & SURETY CO., 259
F.SUPP.  624, 630 - 631 (SDNY 1966). 

/31/  SEE, E.G., H.L. PETERSON CO. V. APPLEWHITE, 383 F.2D 430, 433
434 (CA5 1967); ALBRIGHT V. GATES, 362 F.2D 928 (CA9 1966); UNION
PAVING CO. V. DOWNER CORP., 276 F.2D 468, 471 (CA9 1960); UNITED
ARTISTS CORP. V. MASTERPIECE PRODUCTIONS, INC., 221 F.2D 213, 216 - 217
(CA2 1955); MARKUS V. DILLINGER, 191 F.SUPP.  732, 735 (ED PA. 1961);
CF. DEWEY V. WEST FAIRMONT GAS COAL CO., 123 U.S. 329 (1887); MOORE V.
NEW YORK COTTON EXCHANGE, 270 U.S. 593, 608 - 609 (1926). 

/32/  SEE, E.G., PENNSYLVANIA R. CO. V. ERIE AVE. WAREHOUSE CO., 302
F.2D 843, 844 (CA3 1962); SOUTHERN MILLING CO. V. UNITED STATES, 270
F.2D 80, 84 (CA5 1959); DERY V. WYER, 265 F.2D 804, 807 - 808 (CA2
1959); WAYLANDER-PETERSON CO. V. GREAT NORTHERN R. CO., 201 F.2D 408,
415 (CA8 1953). 

/33/  CF. SHAKMAN, THE NEW PENDENT JURISDICTION OF THE FEDERAL
COURTS, 20 STAN.  L. REV. 262, 265 - 266, 270 - 271 (1968). 

/34/  RUNDLE V. MADIGAN, 331 F.SUPP.  492, 495 N.5 (ND CAL. 1971). 

/35/  IBID.     /36/  SINCE WE HOLD IN PART III THAT THE COUNTY IS A
CITIZEN OF CALIFORNIA FOR PURPOSES OF DIVERSITY JURISDICTION, THE STATE
LAW CLAIM AGAINST THE COUNTY WILL IN FACT BE BEFORE THE DISTRICT COURT
ON REMAND IN THE MOOR CASE.  BUT THIS FACT DOES NOT IN OUR OPINION CALL
FOR FURTHER CONSIDERATION OF THE PENDENT JURISDICTION ISSUE BY THE
DISTRICT COURT.  GIVEN OUR DECISION IN PART III, THE ISSUE OF PENDENT
JURISDICTION IS WITHOUT FURTHER CONSEQUENCE FOR PETITIONER MOOR.  AND
IT IS CLEAR THAT THE MERE FACT THAT THE COUNTY WILL BE BEFORE THE
DISTRICT COURT IN PETITIONER MOOR'S CASE DOES NOT SIGNIFICANTLY AFFECT
THE BASIS OF THE DISTRICT COURT'S DISCRETIONARY JUDGMENT WITH RESPECT
TO PETITIONER RUNDLE'S SUIT.  FOR COUNSEL FOR PETITIONERS SPECIFICALLY
INDICATED AT ORAL ARGUMENT THAT THE PETITIONERS' SUITS WERE
CONSOLIDATED ONLY FOR PURPOSES OF APPEAL, AND THAT
PETITIONERS'"INJURIES ARE DIFFERENT AND THE CASES WILL BE TRIED
SEPARATELY," TR. OF ORAL ARG. 47.  THUS, EVEN CONSIDERING OUR DECISION
IN PART III AS TO PETITIONER MOOR'S CLAIM AGAINST THE COUNTY, WE SEE NO
REASON TO UPSET THE DISTRICT COURT'S DETERMINATION THAT IT WOULD NOT
HEAR THE COMPLICATING STATE LAW CLAIM AGAINST THE COUNTY WHERE, AS IN
RUNDLE'S SUIT, IT HAS A CHOICE IN LIGHT OF THE SUBSTANTIAL ELEMENT OF
DISCRETION INHERENT IN THE DOCTRINE OF PENDENT JURISDICTION. 

/37/  APPENDIX E TO PETITION FOR CERTIORARI 18 - 19. 

/38/  STATE HIGHWAY COMM'N OF WYOMING V. UTAH CONSTRUCTION CO., 278
U.S. 194, 199 (1929). 

/39/  UNDER 28 U.S.C. ^ 1332 (C), A CORPORATION IS, OF COURSE, ALSO
A CITIZEN OF "THE STATE WHERE IT HAS ITS PRINCIPAL PLACE OF BUSINESS." 

/40/  INDEED, MERCER COUNTY WAS ABLE TO POINT TO A PROVISION OF
STATE LAW THAT LIMITED LIABILITY OF ILLINOIS COUNTIES TO SUIT IN THE
CIRCUIT COURTS OF THE COUNTY ITSELF.  NEVERTHELESS, THIS COURT
CONCLUDED THAT "NO STATUTE LIMITATION OF SUABILITY CAN DEFEAT A
JURISDICTION GIVEN BY THE CONSTITUTION," 7 WALL.  118, 122.  MOREOVER,
SUBSEQUENT TO COWLES, THE COURT RULED THAT A COUNTY WAS SUBJECT TO
DIVERSITY JURISDICTION EVEN WHERE THERE WAS NO STATE STATUTE UNDER
WHICH COUNTIES WERE AUTHORIZED TO SUE AND BE SUED.  SEE CHICOT COUNTY
V. SHERWOOD, 148 U.S. 529, 533 - 534 (1893). 

/41/  SEE CA. GOVT. CODE ^ 23000. 

/42/  SEE ID., ^ 23003. 

/43/  SEE ID., ^^ 945, 23004 (A). 

/44/  SEE ID., ^ 940.4 

/45/  SEE ID., ^ 940.6 

/46/  THUS, ANY LIABILITY ON THE PART OF THE COUNTY AS A RESULT OF
THIS SUIT WOULD BE THE COUNTY'S ALONE; NO OBLIGATION WOULD ARISE WITH
RESPECT TO THE STATE. 

/47/  SEE CAL. GOVT. CODE ^ 50171. 

/48/  SEE ID., ^^ 23004 (D), 25520 - 25539. 

/49/  SEE ID., ^^ 23004 (C), 25450 - 25467. 

/50/  SEE ID., ^^ 25690 - 26224. 

/51/  SEE ID., ^^ 29900 - 29929. 

/52/  SEE ID., ^^ 29922 - 29924. 

/53/  SEE ID., ^^ 29925 - 29927. 

/54/  WE DO THINK IT BEARS NOTING, THOUGH, THAT THE COURT OF
APPEALS, IN INITIALLY CONCLUDING IN MILLER V. COUNTY OF LOS ANGELES,
341 F.2D 964 (CA9 1965), THAT CALIFORNIA COUNTIES WERE NOT CITIZENS FOR
DIVERSITY PURPOSES, MADE NO EFFORT TO ANALYZE INDEPENDENTLY THE STATUS
OF CALIFORNIA COUNTIES BUT SIMPLY RESTED ITS DECISION ON ITS PRIOR
OPINION IN LOWE V. MANHATTAN BEACH CITY SCHOOL DIST., 22 F.2D 258, 259
(CA9 1955).  LOWE IN FACT DID NOT INVOLVE A SUIT AGAINST A CALIFORNIA
COUNTY BUT RATHER A SUIT AGAINST A CALIFORNIA SCHOOL DISTRICT.  AND, IN
LOWE THE COURT OF APPEALS DID NOT UNDERTAKE ANY ANALYSIS OF THE LEGAL
CHARACTER OF EVEN CALIFORNIA SCHOOL DISTRICTS--MUCH LESS CALIFORNIA
COUNTIES--BUT INSTEAD RESTED ITS DECISION ON THE EQUALLY CONCLUSORY
ORDER OF THE DISTRICT COURT, SEE LOWE V. MANHATTAN BEACH CITY SCHOOL
DIST., NO. 16646 - WM CIVIL (SD CA. 1954), REPRINTED IN BRIEF FOR
PETITIONERS APPENDIX A. MOREOVER, DISTRICT COURTS IN STATES OTHER THAN
CALIFORNIA WITHIN THE NINTH CIRCUIT HAVE QUESTIONED THE CORRECTNESS OF
LOWE AND MILLER, AND HAVE REFUSED TO FOLLOW THOSE DECISIONS FOR
COUNTIES OF THEIR OWN STATES.  SEE UNIVERSAL SURETY CO. V. LESCHER &
MAHONEY, ARCH.  & ENG., 340 F.SUPP.  303 (ARIZ. 1972); WHITE V.
UMATILLA COUNTY, 247 F.SUPP.  918 (ORE.  1965). 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE CLAIMS IN THE INSTANT ACTIONS AROSE OUT OF THE MAY 1969,
PEOPLE'S PARK DISTURBANCE, IN WHICH PETITIONERS WERE ALLEGEDLY INJURED
BY AN ALAMEDA COUNTY DEPUTY SHERIFF WHO WAS PERFORMING DUTIES AT THAT
TIME ON BEHALF OF THE COUNTY.  PETITIONERS BROUGHT ACTIONS AGAINST
SEVERAL DEPUTIES, THE SHERIFF, AND THE COUNTY.  THE COMPLAINTS AGAINST
THE COUNTY ALLEGED FEDERAL CAUSES OF ACTION UNDER THE CIVIL RIGHTS ACT,
42 U.S.C. ^^ 1981, 1983, 1985, 1986, 1988, AND PENDENT STATE CLAIMS
UNDER ^ 810 ET SEQ. OF THE CALIFORNIA GOVERNMENT CODE.  BOTH FEDERAL
AND STATE CAUSES OF ACTION WERE PREMISED ON THE THEORY THAT THE COUNTY
COULD BE HELD VICARIOUSLY LIABLE FOR THE ACTS OF THE DEPUTIES.  THE
COUNTY SUBSEQUENTLY FILED MOTIONS TO DISMISS THE CLAIMS AGAINST IT IN
EACH CASE, CONTENDING THAT, AS TO THE CIVIL RIGHTS ACT CLAIMS, THE
COUNTY WAS NOT A "PERSON"  WHO COULD BE SUED UNDER THE ACT.  THE TRIAL
COURT ULTIMATELY GRANTED THESE MOTIONS AND ORDERED THAT ALL CLAIMS
AGAINST THE COUNTY BE DISMISSED.  THE COURT OF APPEALS AFFIRMED THESE
ORDERS OF THE DISTRICT COURT, MOOR V. MADIGAN, 458 F.2D 1217 (CA9). 

TITLE 42 U.S.C. ^ 1983 PROVIDES: 

     "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,

  REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY,

  SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED

  STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE

  DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY

THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED

  IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING

  FOR REDRESS." 

[[HC723'(ORIGINAL DOCUMENT PAGE 723)' 

IN MONROE V. PAPE, 365 U.S. 167, WE HELD THAT A MUNICIPALITY WAS NOT
A "PERSON" WITHIN THE MEANING OF THAT ACT.  THE ISSUE WAS WHETHER OR
NOT THE ACT MADE MUNICIPALITIES LIABLE IN DAMAGES, ID., AT 187 - 191,
THAT CLAIM BEING STRONGLY PRESSED BECAUSE "PRIVATE REMEDIES AGAINST
OFFICERS FOR ILLEGAL SEARCHES AND SEIZURES ARE CONSPICUOUSLY
INEFFECTIVE AND BECAUSE MUNICIPAL LIABILITY WILL NOT ONLY AFFORD
PLAINTIFFS RESPONSIBLE DEFENDANTS BUT CAUSE THOSE DEFENDANTS TO
ERADICATE ABUSES THAT EXIST AT THE POLICE LEVEL."  ID., AT 191.  WE
CERTAINLY SAID, AS WITHIN THE MEANING OF ^ 1983.  IBID.  BUT ^ 1983
PERMITS EQUITABLE RELIEF, AS WELL AS DAMAGES, NOT DIRECTLY INVOLVED IN
MONROE V. PAPE BUT A MATTER WE EXPLORED AT SOME LENGTH LAST TERM IN
MITCHUM V. FOSTER, 407 U.S. 225. 

THERE MAY BE OVERTONES IN MONROE V. PAPE, THAT EVEN SUITS IN EQUITY
ARE BARRED.  YET WE NEVER HAVE SO HELD.  CERTAINLY A RESIDUUM OF POWER
SEEMS AVAILABLE IN ^ 1983 TO ENJOIN SUCH BIZARRE CONDUCT AS THE
OFFERING TO THE POLICE OF CLASSES IN TORTURE.  MORE REALISTICALLY, ^
1983 AS CONSTRUED IN MITCHUM V. FOSTER MIGHT UNDER SOME CIRCUMSTANCES
AUTHORIZE A FEDERAL INJUNCTION AGAINST A MUNICIPAL PROSECUTION OF AN
OFFENDER.  SUCH BEING MY UNDERSTANDING OF MONROE V. PAPE AND MITCHUM V.
FOSTER, I WOULD HOLD THAT THE COUNTY OF ALAMEDA IN THIS CASE IS A
"PERSON" WITHIN THE MEANING OF ^ 1983 FOR A NARROW GROUP OF EQUITY
ACTIONS AND THAT THEREFORE THE DISTRICT COURT DID NOT LACK
JURISDICTION. 

ALTHOUGH THE COMPLAINT IN THE INSTANT ACTION ASKED FOR DAMAGES, IT
ALSO PRAYED FOR ANY FURTHER RELIEF THAT THE COURT MIGHT DEEM JUST AND
PROPER.  SINCE THE COMPLAINT WAS DISMISSED AT THE THRESHOLD OF THE
LITIGATION, IT IS IMPOSSIBLE TO DETERMINE WHETHER OR NOT GROUNDS FOR
EQUITABLE RELIEF WOULD HAVE EMERGED DURING THE NORMAL COURSE OF THE
LITIGATION. 

[[HC724'(ORIGINAL DOCUMENT PAGE 724)'  BUT THE PRAYER FOR ANY
"FURTHER RELIEF" WOULD EMBRACE IT. 

IN ANY EVENT AN AMENDED COMPLAINT COULD MAKE THE MATTER CLEAR BEYOND
PERADVENTURE. 

THAT RAISES THE QUESTION AS TO THE LIABILITY OF THE COUNTY OF
ALAMEDA, BY REASON OF 42 U.S.C. ^ 1988, WHICH READS: 

     "THE JURISDICTION IN CIVIL AND CRIMINAL MATTERS CONFERRED ON

  THE DISTRICT COURTS BY THE PROVISIONS OF THIS CHAPTER AND TITLE

  18, FOR THE PROTECTION OF ALL PERSONS IN THE UNITED STATES IN

  THEIR CIVIL RIGHTS, AND FOR THEIR VINDICATION, SHALL BE EXERCISED

  AND ENFORCED IN CONFORMITY WITH THE LAWS OF THE UNITED STATES, SO

  FAR AS SUCH LAWS ARE SUITABLE TO CARRY THE SAME INTO EFFECT; BUT

  IN ALL CASES WHERE THEY ARE NOT ADAPTED TO THE OBJECT, OR ARE

  DEFICIENT IN THE PROVISIONS NECESSARY TO FURNISH SUITABLE

  REMEDIES AND PUNISH OFFENSES AGAINST LAW, THE COMMON LAW, AS

  MODIFIED AND CHANGED BY THE CONSTITUTION AND STATUTES OF THE

  STATE WHEREIN THE COURT HAVING JURISDICTION OF SUCH CIVIL OR

  CRIMINAL CAUSE IS HELD, SO FAR AS THE SAME IS NOT INCONSISTENT

  WITH THE CONSTITUTION AND LAWS OF THE UNITED STATES, SHALL BE

  EXTENDED TO AND GOVERN THE SAID COURTS IN THE TRIAL AND

  DISPOSITION OF THE CAUSE, AND, IF IT IS OF A CRIMINAL NATURE, IN

  THE INFLICTION OF PUNISHMENT ON THE PARTY FOUND GUILTY." 

UNDER CALIFORNIA LAW "(A) PUBLIC ENTITY MAY SUE AND BE SUED." 
(GOVT. CODE ^ 945), ALTHOUGH A PUBLIC ENTITY HAS A GENERAL IMMUNITY
FROM SUIT INVOLVING INJURY.  ID., ^ 815.  MOREOVER, AN OFFICER, WHILE
GENERALLY IMMUNE, MAY BECOME LIABLE IN DAMAGES, IF HE USES UNREASONABLE
FORCE AGAINST A CITIZEN, IN WHICH EVENT THE MUNICIPALITY LOSES ITS
IMMUNITY.  THAT AT LEAST IS THE WAY I READ SCRUGGS V. HAYNES, 252 CAL.
APP.2D 256, 60 CA. RPTR.  355. 

SINCE ^ 1983 DOES NOT ALLOW DAMAGES AGAINST THE MUNICIPALITY IN A
FEDERAL SUIT, FEDERAL LAWS "ARE NOT ADAPTED TO THE OBJECTS,"  AND ARE
"DEFICIENT IN THE PROVISIONS NECESSARY TO FURNISH SUITABLE REMEDIES,"
WITHIN THE MEANING OF ^ 1988. 

[[HC725'(ORIGINAL DOCUMENT PAGE 725)'  WHILE IT IS "INCONSISTENT"
WITH THE "LAWS OF THE UNITED STATES,"  AS THOSE WORDS WERE USED IN ^
1988, TO ENFORCE A FEDERAL CAUSE OF ACTION FOR DAMAGES AGAINST THE
COUNTY OF ALAMEDA, IT ARGUABLY IS WITHIN THE SCHEME OF THE STATE CAUSE
OF ACTION.  THIS IS NOT TO ALLOW STATE LAW TO ENLARGE THE SCOPE OF ^
1983.  SECTION 1983 BY REASON OF ITS EQUITY PROVISION MERELY GIVES
"JURISDICTION" TO THE DISTRICT COURT, WHILE ^ 1988 ALLOWS THE DISTRICT
COURT TO APPLY STATE LAW. 

AS WE SAID IN MITCHUM V. FOSTER: 

     THIS LEGISLATIVE HISTORY MAKES EVIDENT THAT CONGRESS CLEARLY

  CONCEIVED THAT IT WAS ALTERING THE RELATIONSHIP BETWEEN THE

  STATES AND THE NATION WITH RESPECT TO THE PROTECTION OF FEDERALLY

  CREATED RIGHTS; IT WAS CONCERNED THAT STATE INSTRUMENTALITIES

  COULD NOT PROTECT THOSE RIGHTS; IT REALIZED THAT STATE OFFICERS

 MIGHT, IN FACT, BE ANTIPATHETIC TO THE VINDICATION OF THOSE

  RIGHTS; AND IT BELIEVED THAT THESE FAILINGS EXTENDED TO THE STATE

  COURTS."  407 U.S., AT 242. 

THE FEDERAL RIGHT HERE IS NOT TO OBTAIN DAMAGES BUT TO OBTAIN SOME
KIND OF EQUITABLE RELIEF.  APPLICATION BY THE FEDERAL COURT OF A STATE
CAUSE OF ACTION FOR DAMAGES IS THEREFORE IN HARMONY WITH BOTH ^ 1983
AND ^ 1988.  AS WE STATED SULLIVAN V. LITTLE HUNTING PARK, 396 U.S.
229, 240, "THIS MEANS, AS WE READ ^ 1988, THAT BOTH FEDERAL AND STATE
RULES ON DAMAGES MAY BE UTILIZED, WHICHEVER BETTER SERVES THE POLICIES
EXPRESSED IN THE FEDERAL STATUTES.  . . . THE RULE OF DAMAGES, WHETHER
DRAWN FROM FEDERAL OR STATE SOURCES, IS A FEDERAL RULE RESPONSIVE TO
THE NEED WHENEVER A FEDERAL RIGHT IS IMPAIRED."  THE FEDERAL RIGHT HERE
IS THE ALLEGED "DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES
SECURED BY THE CONSTITUTION AND LAWS" AS THESE WORDS ARE USED IN 1983. 

RONALD M. GREENBERG ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONERS. 

PETER W. DAVIS ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS RAOUL D. KENNEDY. 
..END :













FEDERAL MARITIME COMMISSION V. SEATRAIN LINES, INC., ET AL., 411 U.S.
726 



       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT 

     NO. 71 - 1647.  ARGUED MARCH 21, 1973--DECIDED MAY 14, 1973;

 148 U.S. APP. D.C. 424, 460 F.2D 932, AFFIRMED. 


    IN ENACTING 15 OF THE SHIPPING ACT, 1916, CONGRESS CONFERRED ON

  THE FEDERAL MARITIME COMMISSION (FMC) THE POWER TO EXEMPT FROM

  THE ANTITRUST LAWS AGREEMENTS, OR THOSE PORTIONS OF AGREEMENTS,

  BETWEEN CARRIERS THAT CREATE AN ONGOING ARRANGEMENT IN WHICH BOTH

  PARTIES UNDERTAKE CONTINUING RESPONSIBILITIES, WHICH THEREFORE

  NECESSITATE CONTINUOUS FMC SUPERVISION, BUT NOT ONETIME

  ACQUISITIONS OF ASSETS THAT RESULT IN ONE OF THE CONTRACTING

  PARTIES CEASING TO EXIST.  PP. 731 - 746. 

     MARSHALL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

U.S.C. ^ 814, REQUIRES ALL PERSONS SUBJECT TO THE ACT TO FILE WITH THE
FEDERAL MARITIME COMMISSION /1/  EVERY AGREEMENT WITHIN SPECIFIED
CATEGORIES REACHED WITH ANY OTHER PERSON SUBJECT TO THE ACT. 

[[HC727'(ORIGINAL DOCUMENT PAGE 727)'  THE SECTION FURTHER EMPOWERS
THE COMMISSION TO DISAPPROVE, CANCEL, OR MODIFY ANY SUCH AGREEMENT
WHICH IT FINDS TO BE UNJUSTLY DISCRIMINATORY, TO THE DETRIMENT OF THE
COMMERCE OF THE UNITED STATES, CONTRARY TO THE PUBLIC INTEREST, OR
VIOLATIVE OF THE TERMS OF THE ACT.  /2/  THE COMMISSION IS DIRECTED TO
APPROVE ALL OTHER AGREEMENTS, AND THE STATUTE EXPRESSLY PROVIDES THAT
AGREEMENTS SO APPROVED ARE EXEMPT FROM THE ANTITURST LAWS.  /3/ 

[[HC728'(ORIGINAL DOCUMENT PAGE 728)' 

THE QUESTION PRESENTLY BEFORE US IS WHETHER A CONTRACT WHICH CALLS
FOR THE ACQUISITION OF ALL THE ASSETS OF ONE CARRIER BY ANOTHER CARRIER
AND WHICH CREATES NO ONGOING OBLIGATIONS IS AN "AGREEMENT" WITHIN THE
MEANING OF THE SECTION.  THE QUESTION IS OF SOME IMPORTANCE, SINCE IF
SUCH CONTRACTS ARE NOT APPROVED BY THE COMMISSION, THE ANTITRUST LAWS
ARE FULLY APPLICABLE TO THEM.  SEE CARNATION CO. V. PACIFIC WESTBOUND
CONFERENCE, 383 U.S. 213 (1966).  CF. UNITED STATES V. BORDEN CO., 308
U.S. 188 (1939).  BUT CF. UNITED STATES NAVIGATION CO. V. CUNARD S.S.
CO., 284 U.S. 474 (1932); FAR EAST CONFERENCE V. UNITED STATES, 342
U.S. 570 (1952).  ON THE OTHER HAND, IF THEY ARE WITHIN THE
COMMISSION'S JURISDICTION, THE COMMISSION MAY APPROVE THEM EVEN THOUGH
THEY ARE VIOLATIVE OF THE ANTITRUST LAWS, ALTHOUGH THE COMMISSION MUST
TAKE ANTITRUST PRINCIPLES INTO ACCOUNT IN REACHING ITS DECISION.  SEE
VOLKSWAGENWERK AKTIENGESELLSCHAFT V. FMC, 390 U.S. 261, 273 - 274
(1968); FMC V. AKTIEBOLAGET SVENSKA AMERIKA LINIEN, 390 U.S. 238, 244 -
246 (1968). 

[[HC729'(ORIGINAL DOCUMENT PAGE 729)' 

IN THIS CASE, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT CONCLUDED THAT ^ 15 DID NOT CONFER JURISDICTION UPON THE
COMMISSION TO APPROVE DISCRETE ACQUISION OF ASSETS AGREEMENTS.  IN SO
HOLDING, IT FOLLOWED A PRIOR DISTRICT COURT DECISION IN UNITED STATES
V. R.J. REYNOLDS TOBACCO CO., 325 F.SUPP.  656 (NJ 1971), BUT DECLINED
TO FOLLOW A NINTH CIRCUIT HOLDING THAT THE COMMISSION HAD SUCH
JURISDICTION.  SEE MATSON NAVIGATION CO. V. FMC, 405 F.2D 796 (CA9
1968).  WE GRANTED CERTIORARI IN ORDER TO RESOLVE THIS CONFLICT AND
BECAUSE THE CASE POSED AN IMPORTANT ISSUE CONCERNING THE INTERFACE
BETWEEN THE ANTITRUST LAWS AND THE COMMISSION'S REGULATORY POWERS.  WE
CONCLUDE THAT IN ENACTING ^ 15, CONGRESS DID NOT INTEND TO INVEST THE
COMMISSION WITH THE POWER TO SHIELD FROM ANTITRUST LIABILITY MERGER OR
ACQUISITION OF ASSETS AGREEMENTS WHICH IMPOSE NO ONGOING
RESPONSIBILITIES.  RATHER, CONGRESS INTENDED TO INVEST THE COMMISSION
WITH JURISDICTION OVER ONLY THOSE AGREEMENTS, OR THOSE PORTIONS OF
AGREEMENTS, WHICH CREATED ONGOING RIGHTS AND RESPONSIBILITIES AND
WHICH, THEREFORE, NECESSITATED CONTINUOUS COMMISSION SUPERVISION.  WE
THEREFORE AFFIRM THE JUDGMENT BELOW. 

   I 

THIS CASE WAS INITIATED WHEN RESPONDENT SEATRAIN LINES, INC.
(SEATRAIN) FILED A PROTEST WITH THE COMMISSION AGAINST AN AGREEMENT
REACHED BETWEEN PACIFIC FAR EAST LINES, INC. (PFEL) AND OCEANIC
STEAMSHIP CO. (OCEANIC), BOTH OF WHICH ARE ALSO RESPONDENTS HERE,
WHEREBY OCEANIC AGREED TO SELL ALL ITS ASSETS TO PFEL.  UNDER THE TERMS
OF THE AGREEMENT, OCEANIC PROMISED TO TRANSFER ITS ENTIRE FLEET AND ALL
THE RELATED EQUIPMENT TOGETHER WITH OCEANIC'S INTEREST IN TWO CONTAINER
SHIPS THEN BEING CONSTRUCTED AND ALL OF OCEANIC'S EMPLOYEES TO PFEL. 

[[HC730'(ORIGINAL DOCUMENT PAGE 730)'  ALTHOUGH OCEANIC DID NOT
FORMALLY MERGE WITH PFEL AND RETAINED ITS CORPORATE EXISTENCE, IT WAS
LEFT AS A SHELL CORPORATION WHOLLY WITHOUT ASSETS.  HOWEVER, OCEANIC
UNDERTOOK NO CONTINUING OBLIGATION NOT TO RE-ENTER THE BUSINESS AND
COMPETE WITH PFEL.  ON OCTOBER 6, 1970, OCEANIC AND PFEL NOTIFIED THE
COMMISSION OF THE AGREEMENT, BUT ACCOMPANIED THE NOTIFICATION WITH AN
EXPRESS STATEMENT THAT, IN THEIR VIEW, THE AGREEMENT WAS NOT WITHIN THE
COMMISSION'S JURISDICTION.  THE COMMISSION PUBLISHED NOTICE OF THE
AGREEMENT, SEE 35 FED. REG. 16114, AND ALLOWED 10 DAYS FOR INTERESTED
PARTIES TO PROTEST AND REQUEST A HEARING.  SEATRAIN FILED SUCH A
REQUEST ON OCTOBER 21, 1970, ALLEGING THAT IT WAS A POTENTIAL
COMPETITOR OF PFEL AND THAT THE ACQUISITION HENCE, WAS CONTRARY TO THE
PUBLIC-INTEREST STANDARD OF THE STATUTE. 

INSTEAD OF HOLDING A HEARING TO INVESTIGATE THESE ALLEGATIONS,
HOWEVER, THE COMMISSION ISSUED A SUMMARY ORDER DENYING THE REQUEST FOR
AN INVESTIGATION AND APPROVING THE AGREEMENT.  THE COMMISSION HELD THAT
"(WHILE SECTION 15 OF THE SHIPPING ACT, 1916, REQUIRES APPROVAL, THERE
IS NO REQUIREMENT OF LAW THAT THE MERE FILING OF A PROTEST IS
SUFFICIENT TO REQUIRE THAT A HEARING BE HELD BEFORE THE COMMISSION MAY
GRANT APPROVAL OF ANY PROTESTED AGREEMENT."  FINDING THAT "THE
LIKELIHOOD OF ANY IMPACT AT ALL UPON (SEATRAIN'S) OPERATIONS WHICH
MIGHT RESULT FROM APPROVAL OF THE AGREEMENT IS A MATTER OF MERE
SPECULATION," THE COMMISSION CONCLUDED THAT "SEATRAIN HAS NO STANDING
IN THIS MATTER, AND THAT ITS PROTEST IS WITHOUT SUBSTANCE."  /4/ 

[[HC731'(ORIGINAL DOCUMENT PAGE 731)' 

AFTER SEATRAIN'S PETITION TO REOPEN WAS DENIED, IT APPEALED THE
COMMISSION'S RULING TO THE COURT OF APPEALS.  /5/  SEATRAIN ARGUED THAT
THE COMMISSION WAS REQUIRED TO HOLD A HEARING ON ITS OBJECTION, WHILE
THE UNITED STATES, AS STATUTORY RESPONDENT, /6/  AND OCEANIC AND PFEL,
AS INTERVENORS, ARGUED THAT THE COMMISSION LACKED JURISDICTION OVER THE
AGREEMENT.  IN A COMPREHENSIVE OPINION, THE COURT OF APPEALS FOUND IT
UNNECESSARY TO REACH THE HEARING ISSUE, SINCE IT FOUND THAT THE
COMMISSION "LACKS JURISDICTION UNDER SECTION 15 OF THE SHIPPING ACT,
1916, TO APPROVE ARRANGEMENTS OF THE TYPE INVOLVED HERE, WHICH DO NOT
REQUIRE THE CONTINUED EXISTENCE OR PARTICIPATION OF THE PARTIES IN SUCH
ARRANGEMENTS."  148 U.S. APP. D.C. 424, 441, 460 F.2D 932, 949 (1972). 
THE COURT THEREFORE VACATED THE COMMISSION'S DECISION AND DIRECTED THAT
THE AGREEMENT BE REMOVED FROM ITS DOCKET.  THE CASE THEN CAME HERE ON
THE COMMISSION'S PETITION FOR CERTIORARI.  409 U.S. 1058 (1972). 

        II 

AT THE OUTSET, IT MUST BE RECOGNIZED THAT THE STATUTORY LANGUAGE
NEITHER CLEARLY EMBRACES NOR CLEARLY EXCLUDES DISCRETE MERGER OR
ACQUISITION-OF-ASSETS AGREEMENTS.  THE SITUATION IS THEREFORE
FUNDAMENTALLY DIFFERENT FROM THAT POSED IN VOLKSWAGENWERK
AKTIENGESELLSCHAFT V. FMC, RELIED UPON HEAVILY BY PETITIONER, WHERE WE
HELD IN THE CONTEXT OF AN ONGOING AGREEMENT THAT THE COMMISSION'S
RULING THAT THE AGREEMENT WAS WITHOUT ITS ^ 15 JURISDICTION "SIMPLY
DOES NOT SQUARE WITH THE STRUCTURE OF THE STATUTE."  390 U.S., AT 275. 
IN THIS CASE, THE STATUTE IS AMBIGUOUS IN ITS SCOPE AND MUST THEREFORE
BE READ IN LIGHT OF ITS HISTORY AND THE GOVERNING STATUTORY
PRESUMPTIONS. 

[[HC732'(ORIGINAL DOCUMENT PAGE 732)' 

BY ITS TERMS, THE STATUTE REQUIRES THOSE COVERED BY IT TO "FILE
IMMEDIATELY WITH THE COMMISSION A TRUE COPY, OR, IF ORAL, A TRUE AND
COMPLETE MEMORANDUM, OF EVERY AGREEMENT . . . OR MODIFICATION OR
CANCELLATION THEROF" WHICH FALLS INTO ANY ONE OF SEVEN CATEGORIES. 
THESE ARE AGREEMENTS 

"(1) FIXING OR REGULATING TRANSPORTATION RATES OR FARES; (2) GIVING
OR RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER SPECIAL PRIVILEGES
OR ADVANTAGES; (3) CONTROLLING, REGULATING, PREVENTING, OR DESTROYING
COMPETITION; (4) POOLING OR APPORTIONING EARNINGS, LOSSES, OR TRAFFIC;
(5) ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE NUMBER
AND CHARACTER OF SAILINGS BETWEEN PORTS; (6) LIMITING OR REGULATING IN
ANY WAY THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO BE
CARRIED; (7) OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL,
OR COOPERATIVE WORKING ARRANGEMENT." 

NONE OF THESE SEVEN CATEGORIES EXPRESSLY REFERS TO A ONE-TIME MERGER
OR ACQUISITION-OF-ASSETS AGREEMENT WHICH IMPOSES NO CONTINUING
OBLIGATION AND WHICH, INDEED, EFFECTIVELY DESTROYS ONE OF THE PARTIES
TO THE AGREEMENT.  THE COMMISSION VIGOROUSLY ARGUES THAT SUCH
AGREEMENTS CAN BE INTERPRETED AS FALLING WITHIN THE THIRD CATEGORY-
WHICH CONCERNS AGREEMENTS "CONTROLLING REGULATING, PREVENTING, OR
DESTROYING COMPETITION."  /7/  WITHOUT MORE, WE MIGHT BE INCLINED TO
AGREE THAT MANY MERGER AGREEMENTS PROBABLY FIT WITHIN THIS CATEGORY. 

[[HC733'(ORIGINAL DOCUMENT PAGE 733)'  BUT A BROAD READING OF THE
THIRD CATEGORY WOULD CONFLICT WITH OUR FREQUENTLY EXPRESSED VIEW THAT
EXEMPTIONS FROM ANTITRUST LAWS ARE STRICTLY CONSTRUED, SEE, E.G.,
UNITED STATES V. MCKESSON & ROBBINS, INC., 351 U.S. 305, 316 (1956),
AND THAT "(REPEALS OF THE ANTITRUST LAWS BY IMPLICATION FROM A
REGULATORY STATUTE ARE STRONGLY DISFAVORED, AND HAVE ONLY BEEN FOUND IN
CASES OF PLAIN REPUGNANCY BETWEEN THE ANTITRUST AND REGULATORY
PROVISIONS."  UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321, 350 - 351 (1963) (FOOTNOTES OMITTED).  AS WE OBSERVED ONLY
RECENTLY:  "WHEN . . . RELATIONSHIPS ARE GOVERNED IN THE FIRST INSTANCE
BY BUSINESS JUDGMENT AND NOT REGULATORY COERCION, COURTS MUST BE
HESITANT TO CONCLUDE THAT CONGRESS INTENDED TO OVERRIDE THE FUNDAMENTAL
NATIONAL POLICIES EMBODIED IN THE ANTITRUST LAWS."  OTTER TAIL POWER
CO. V. UNITED STATES, 410 U.S. 366, 374 (1973).  SEE ALSO SILVER V. NEW
YORK STOCK EXCHANGE, 373 U.S. 341 (1963); PAN AMERICAN WORLD AIRWAYS,
INC. V. UNITED STATES, 371 U.S. 296 (1963); CALIFORNIA V. FPC, 369 U.S.
482 (1962); UNITED STATES V. BORDEN CO. 308 U.S. 188 (1939).  THIS
PRINCIPLE HAS LED US TO CONSTRUE THE SHIPPING ACT AS CONFERRING ONLY A
"LIMITED ANTITRUST EXEMPTION" IN LIGHT OF THE FACT THAT "ANTITRUST LAWS
REPRESENT A FUNDAMENTAL NATIONAL ECONOMIC POLICY."  CARNATION CO. V.
PACIFIC WESTBOUND CONFERENCE, 383 U.S. AT 219, 218.  /8/ 

OUR RELUCTANCE TO CONSTRUE THE THIRD CATEGORY OF AGREEMENTS BROADLY
SO AS TO INCLUDE DISCRETE MERGER ARRANGEMENTS IS BOLSTERED BY THE
STRUCTURE OF THE ACT.  IT SHOULD BE NOTED THAT OF THE SEVEN CATEGORIES,
SIX ARE EXPRESSLY LIMITED TO ONGOING ARRANGEMENTS IN WHICH BOTH PARTIES
UNDERTAKE CONTINUING RESPONSIBILITIES. 

[[HC734'(ORIGINAL DOCUMENT PAGE 734)'  INDEED, EVEN THE THIRD
CATEGORY REFERS TO AGREEMENTS "CONTROLLING,"  "REGULATING" AND
"PREVENTING" COMPETITION--ALL OF WHICH ARE CONTINUING ACTIVITIES.  ONLY
THE REFERENCE TO THE DESTRUCTION OF COMPETITION SUPPORTS THE
COMMISSION'S ARGUMENT THAT THE PROVISION WAS INTENDED TO COVER ONE
TIME, DISCRETE TRANSACTIONS.  BUT EVEN THIS REFERENCE MUST BE READ IN
LIGHT OF THE FINAL, COMPREHENSIVE CATEGORY WHICH REFERS TO AGREEMENTS
"IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL, OR COOPERATIVE
WORKING ARRANGEMENT."  AS THE COURT OF APPEALS NOTED, THIS LAST
CATEGORY WAS CLEARLY MEANT AS A CATCHALL PROVISION, "INTENDED . . . TO
SUMMARIZE THE TYPE OF AGREEMENTS COVERED."  148 U.S. APP. D.C., AT 427,
460 F.2D, AT 935.  CF. FMB V. ISBRANDTSEN CO., 356 U.S. 481, 492
(1958).  IT IS, OF COURSE, A FAMILIAR CANON OF STATUTORY CONSTRUCTION
THAT SUCH CLAUSES ARE TO BE READ AS BRINGING WITHIN A STATUTE
CAGEGORIES SIMILAR IN TYPE TO THOSE SPECIFICALLY ENUMERATED.  SEE 2 J.
SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION ^ 4908 ET SEQ. (3D ED.
1943) AND CASES THERE CITED.  SINCE THE SUMMARY PROVISION IS EXPLICITLY
LIMITED TO "WORKING ARRANGEMENTS),"  IT IS REASONABLE TO CONCLUDE THAT
CONGRESS INTENDED THIS LIMITATION TO APPLY TO THE SPECIFICALLY
ENUMERATED CATEGORIES AS WELL.  /9/ 

THIS READING OF THE STATUTE IS ESPECIALLY COMPELLING IN LIGHT OF THE
REST OF THE STATUTORY SCHEME, WHICH SIMPLY DOES NOT MAKE SENSE IF THE
STATUTE IS READ TO ENCOMPASS ONE-TIME AGREEMENTS CREATING NO CONTINUING
OBLIGATIONS.  FOR EXAMPLE, THE STATUTE DIRECTS THE COMMISSION TO
"DISAPPROVE, CANCEL OR MODIFY AND AGREEMENT . . . WHETHER OR NOT
PREVIOUSLY APPROVED BY IT, THAT IT FINDS TO BE UNJUSTLY DISCRIMINATORY
OR UNFAIR AS BETWEEN CARRIERS, SHIPPERS, EXPORTERS, IMPORTERS, OR
PORTS, OR BETWEEN EXPORTERS FROM THE UNITED STATES AND THEIR FOREIGN
COMPETITORS, OR TO OPERATE TO THE DETRIMENT OF THE COMMERCE OF THE
UNITED STATES, OR TO BE CONTRARY TO THE PUBLIC INTEREST, OR TO BE IN
VIOLATION OF THIS CHAPTER." 

[[HC735'(ORIGINAL DOCUMENT PAGE 735)'  THE STATUTE THUS ENVISIONS A
CONTINUING SUPERVISORY ROLE FOR THE COMMISSION AND INVESTS IT WITH
POWER TO DISALLOW AN AGREEMENT AFTER A PERIOD OF TIME EVEN THOUGH IT
HAD INITIALLY BEEN PERMITTED.  BUT IT IS HARD TO SEE HOW THE COMMISSION
CAN EXERCISE THIS SUPERVISORY FUNCTION WHEN THERE ARE NO CONTINUING
OBLIGATIONS TO SUPERVISE.  AND WE THINK IT UNLIKELY THAT CONGRESS
INTENDED TO PERMIT THE COMMISSION TO APPROVE ACQUISITION-OF-ASSETS
AGREEMENTS, ALLOW THEM TO GO INTO EFFECT, AND THEN, SOMETIME IN THE
INDEFINITE FUTURE, RESUSCITATE THE EXPIRED COMPANY AND UNSCRAMBLE THE
ASSETS UNDER ITS CONTINUING POWER TO DISAPPROVE AGREEMENTS PREVIOUSLY
APPROVED.     SIMILARLY, THE PROVISION IN THE ACT WHICH PROVIDES THAT
"(THE COMMISSION SHALL DISAPPROVE ANY . . . AGREEMENT . . . ON A
FINDING OF INADEQUATE POLICING OF THE OBLIGATIONS UNDER IT" MAKES NO
SENSE UNLESS THE AGREEMENTS CREATE CONTINUING OBLIGATIONS TO POLICE. 
THE STATUTORY REQUIREMENT THAT "CONTINUED APPROVAL" SHALL NOT BE
PERMITTED FOR AGREEMENTS "BETWEEN CARRIERS NOT MEMBERS OF THE SAME
CONFERENCE OR CONFERENCES OF CARRIERS SERVING DIFFERENT TRADES THAT
WOULD OTHERWISE BE NATURALLY COMPETITIVE, UNLESS IN THE CASE OF
AGREEMENTS BETWEEN CARRIERS, EACH CARRIER, OR IN THE CASE OF AGREEMENT
BETWEEN CONFERENCES, EACH CONFERENCE, RETAINS THE RIGHT OF INDEPENDENT
ACTION," SUGGESTS AN ONGOING RELATIONSHIP BETWEEN THE CONTRACTING
PARTIES.  AND THE REQUIREMENT THAT THE CONTRACTING PARTIES "ADOPT AND
MAINTAIN REASONABLE PROCEDURES FOR PROMPTLY AND FAIRLY HEARING AND
CONSIDERING SHIPPERS' REQUESTS AND COMPLAINTS" CAN ONLY BE UNDERSTOOD
IN THE CONTEXT OF A CONTINUING RELATIONSHIP BETWEEN THE CONTRACTING
PARTIES. 

[[HC736'(ORIGINAL DOCUMENT PAGE 736)' 

IN SHORT, WHILE THE STATUTE NEITHER EXPRESSLY INCLUDES NOR EXPRESSLY
EXCLUDES ONE-TIME ACQUISITION-OF-ASSETS ARRANGEMENTS, THE WORDS MUST BE
READ IN CONTEXT, AND THE CONTEXT MAKES UNDENIABLY CLEAR THE ONGOING,
SUPERVISORY ROLE WHICH THE COMMISSION WAS INTENDED TO PERFORM.  AS THE
COURT OF APPEALS CONCLUDED, "(THE WHOLE STRUCTURE OF SECTION 15, NOT
ONLY THE FIRST PARAGRAPH LISTING THE TYPE AGREEMENT COVERED, SHOWS AN
INTENT TO GRANT THE COMMISSION AUTHORITY TO DEAL WITH AGREEMENTS OF A
CONTINUING NATURE."  148 U.S. APP. D.C., AT 427, 460 F.2D, AT 935. 

III 

THIS CONSTRUCTION OF THE SHIPPING ACT IS STRONGLY SUPPORTED BY THE
LEGISLATIVE HISTORY OF THE ACT AND BY CONGRESS' TREATMENT OF OTHER
INDUSTRIES IN CONTEMPORANEOUS AND RELATED STATUTES.  AS THIS COURT
RECOGNIZED IN FMB V. ISBRANDTSEN CO., 356 U.S., AT 490, MOST OF THE
LEGISLATIVE HISTORY OF THE ACT IS CONTAINED IN THE SO-CALLED ALEXANDER
REPORT WHICH CULMINATED A COMPREHENSIVE INVESTIGATION INTO THE SHIPPING
INDUSTRY BY THE HOUSE COMMITTEE ON THE MERCHANT MARINE AND FISHERIES
CHAIRED BY CONGRESSMAN ALEXANDER.  SEE HOUSE COMMITTEE ON THE MERCHANT
MARINE AND FISHERIES, REPORT ON STEAMSHIP AGREEMENTS AND AFFILIATIONS
IN THE AMERICAN FOREIGN AND DOMESTIC TRADE, H.R. DOC. NO. 805, 63D
CONG., 2D SESS. (1914) (HEREINAFTER ALEXANDER REPORT).  ALTHOUGH
LEGISLATION DESIGNED TO CARRY OUT THE REPORT'S RECOMMENDATIONS
INITIALLY FAILED TO PASS, SEE H.R. 17328, 63D CONG., 2D SESS., A
SUBSTANTIALLY SIMILAR BILL WAS ENACTED IN THE NEXT CONGRESS AND WAS
CLEARLY INTENDED TO WRITE THE ALEXANDER PROPOSALS INTO LAW.  SEE H.R.
REP. NO. 659, 64TH CONG., 1ST SESS., 27; S. REP. NO. 689, 64TH CONG.,
1ST SESS., 7 

[[HC737'(ORIGINAL DOCUMENT PAGE 737)' 

AFTER EXAMINING SOME 80 STEAMSHIP AGREEMENTS AND CONFERENCE
ARRANGEMENTS, THE ALEXANDER COMMITTEE CONCLUDED THAT "PRACTICALLY ALL
THE ESTABLISHED LINES OPERATING TO AND FROM AMERICAN PORTS WORK IN
HARMONIOUS COOPERATION, EITHER THROUGH WRITTEN OR ORAL AGREEMENTS,
CONFERENCE ARRANGEMENTS, OR GENTLEMEN'S UNDERSTANDINGS."  ALEXANDER
REPORT 281.  THE COMMITTEE FOUND THAT THIS NETWORK OF AGREEMENTS, MANY
OF THEM SECRET, PROVIDED A COMPREHENSIVE SYSTEM FOR FIXING RATES AND
SUPPRESSING COMPETITION.  SEE ID., AT 282 - 295.  AS THE COMMITTEE
DESCRIBED THE RESULTING COMPETITIVE STRUCTURE OF THE INDUSTRY. 

    "THE PRIMARY OBJECT OF (THE) CONFERENCES AND AGREEMENTS IS TO

  PREVENT NEW LINES FROM BEING ORGANIZED IN A TRADE AND TO CRUSH

  EXISTING LINES WHICH REFUSE TO COMPLY WITH CONDITIONS PRESCRIBED

  BY THE COMBINATIONS, OR WHICH, FOR OTHER REASONS, ARE NOT

  ACCEPTABLE AS MEMBERS OF THE CONFERENCE.  THE METHODS WHICH HAVE

  BEEN ADOPTED FROM TIME TO TIME TO ELIMINATE COMPETITION SHOW THE

  FUTILITY OF A WEAK LINE ATTEMPTING TO ENTER A TRADE IN OPPOSITION

  TO THE COMBINED POWER OF THE ESTABLISHED LINES WHEN UNITED BY

AGREEMENT.  BY RESORTING TO THE USE OF THE 'FIGHTING SHIP,' OR TO

  UNLIMITED RATE CUTTING, THE CONFERENCE LINES SOON EXHAUST THE

  RESOURCES OF THEIR ANTAGONISTS.  BY DISTRIBUTING THE LOSS

  RESULTING FROM THE RATE WAR OVER THE SEVERAL MEMBERS OF THE

  CONFERENCE, EACH CONSTITUENT LINE SUFFERS PROPORTIONATELY A MUCH

  SMALLER LOSS THAN THE ONE LINE WHICH IS FIGHTING THE ENTIRE

  GROUP.  MOREOVER, THE FEDERATED LINES CAN CONDUCT THE COMPETITIVE

  STRUGGLE WITH THE COMFORTABLE ASSURANCE THAT, THEY ARE IN A

  POSITION TO REIMBURSE THEMSELVES THROUGH AN INCREASE IN RATES. 

  TO ALLOW CONFERENCES, THEREFORE, GENERALLY MEANS GIVING THE TRADE

  TO THE LINES NOW ENJOYING IT.  ONLY A POWERFUL LINE CAN HOPE TO

  FIGHT ITS WAY INTO THE TRADE, AND WITH THE INEVITABLE RESULT, IF

  SUCCESSFUL, THAT IT WILL JOIN THE COMBINATION OR BE ALLOWED TO

  EXIST BY VIRTUE OF SOME RATE UNDERSTANDING."  ALEXANDER REPORT

  304 - 305. 

[[HC738'(ORIGINAL DOCUMENT PAGE 738)' 

YET DESPITE THESE FINDINGS, THE COMMITTEE DECIDED AGAINST
RECOMMENDING THE OUTRIGHT BANNING OF THE CONFERENCE SYSTEM.  INSTEAD,
IT CHOSE TO PLACE THAT SYSTEM UNDER GOVERNMENT SUPERVISION AND TO
INVEST AN ADMINISTRATIVE AGENCY WITH THE POWER TO APPROVE OR DISAPPROVE
VARIOUS CONFERENCE ARRANGEMENTS.  THE COMMITTEE'S REASONS FOR THIS
DECISION ARE CRUCIAL TO THE ISSUE PRESENTLY BEFORE US.  THE COMMITTEE
FOUND THAT: 

"(OPEN COMPETITION CAN NOT BE ASSURED FOR ANY LENGTH OF TIME BY
ORDERING EXISTING AGREEMENTS TERMINATED.  THE ENTIRE HISTORY OF
STEAMSHIP AGREEMENTS SHOWS THAT IN OCEAN COMMERCE THERE IS NO HAPPY
MEDIUM BETWEEN WAR AND PEACE WHEN SEVERAL LINES ENGAGE IN THE SAME
TRADE.  MOST OF THE NUMEROUS AGREEMENTS AND CONFERENCE ARRANGEMENTS
DISCUSSED IN THE FOREGOING REPORT WERE THE OUTCOME OF RATE WARS, AND
REPRESENT A TRUCE BETWEEN THE CONTENDING LINES.  TO TERMINATE EXISTING
AGREEMENTS WOULD NECESSARILY BRING ABOUT ONE OF TWO RESULTS:  THE LINES
WOULD EITHER ENGAGE IN RATE WARS WHICH WOULD MEAN THE ELIMINATION OF
THE WEAK AND THE SURVIVAL OF THE STRONG, OR, TO AVOID A COSTLY
STRUGGLE, THEY WOULD CONSOLIDATE THROUGH COMMON OWNERSHIP.  NEITHER
RESULT CAN BE PREVENTED BY LEGISLATION, AND EITHER WOULD MEAN A
MONOPOLY FULLY AS EFFECTIVE, AND IT IS BELIEVED MORE SO, THAN CAN EXIST
BY VIRTUE OF AN AGREEMENT."  ID., AT 416. 

THUS, THE COMMITTEE CHOSE TO PERMIT CONTINUATION OF THE CONFERENCE
SYSTEM, BUT TO CURB ITS ABUSES BY REQUIRING GOVERNMENT APPROVAL OF
CONFERENCE AGREEMENTS.  IT DID SO BECAUSE IT FEARED THAT IF CONFERENCES
WERE ABOLISHED, THE RESULT WOULD BE A NET DECREASE IN COMPETITION
THROUGH THE MERGERS AND ACQUISITION OF ASSETS AGREEMENTS THAT WOULD
RESULT FROM UNREGULATED RATE WARS. 

[[HC739'(ORIGINAL DOCUMENT PAGE 739)' 

IT IS READILY APPARENT THAT THE COMMISSION'S READING OF THE STATUTE
WOULD FRUSTRATE THIS LEGISLATIVE PURPOSE.  THE COMMITTEE GAVE THE
COMMISSION POWER TO INSULATE CERTAIN ANTI-COMPETITIVE ARRANGEMENTS IN
ORDER TO PREVENT OUTRIGHT MERGERS.  YET THE COMMISSION WOULD HAVE US
CONSTRUE THIS AUTHORITY IN SUCH A WAY AS TO ALLOW IT TO SHIELD THE
MERGERS THEMSELVES--THE VERY THING WHICH CONGRESS INTENDED TO PREVENT. 
CF. CARNATION CO. V. PACIFIC WESTBOUND CONFERENCE, 383 U.S., AT 218 -
220. 

THE ILLOGICAL NATURE OF THE COMMISSION'S ARGUMENT IS ESPECIALLY
APPARENT WHEN ONE REMEMBERS THAT AT THE TIME THE ACT WAS PASSED, THE
COMMISSION WAS ARGUABLY NOT PERMITTED TO TAKE ANTITRUST POLICIES INTO
ACCOUNT WHEN RULING ON PROPOSED AGREEMENTS.  WE HAVE CONSTRUED THE
"PUBLIC INTEREST" STANDARD CONTAINED IN THE ACT AS REQUIRING THE
COMMISSION TO CONSIDER THE ANTITRUST IMPLICATIONS OF AN AGREEMENT
BEFORE APPROVING IT.  SEE VOLKSWAGENWERK AKTIENGESELLSCHAFT V. FMC, 390
U.S., AT 274 N.20; FMC V. AKTIEBOLAGET SVENSKA AMERIKA LINIEN, 390
U.S., AT 242 - 244.  CF. MEDITERRANEAN POOLS INVESTIGATION, 9 F.MC.
264, 289 (1966).  BUT THE "PUBLIC INTEREST" CRITERION WAS NOT ADDED TO
THE ACT UNTIL 1961.  SEE 75 STAT. 763.  THUS, UNDER THE PETITIONER'S
INTERPRETATION, AT THE TIME THE ACT WAS PASSED, THE COMMISSION WAS
ARGUABLY REQUIRED TO APPROVE MERGER AGREEMENTS DESPITE STRONG ANTITRUST
OBJECTIONS TO THEM IF THE OTHER CRITERIA OF THE ACT WERE MET.  WE
SIMPLY CANNOT BELIEVE THAT CONGRESS INTENDED TO REQUIRE APPROVAL OF THE
VERY ARRANGEMENTS WHICH, AS THE LEGISLATIVE HISTORY CLEARLY SHOWS, IT
WANTED TO PREVENT. 

THE LEGISLATIVE HISTORY ALSO DEMONSTRATES THAT THE ALEXANDER
COMMITTEE USED THE TERM "AGREEMENTS" AS A WORD OF ART AND THAT MERGERS
AND OTHER ARRANGEMENTS CREATING NO CONTINUING RIGHTS AND OBLIGATIONS
WERE NOT INCLUDED WITHIN ITS DEFINITION. 

[[HC740'(ORIGINAL DOCUMENT PAGE 740)'  AS THE DISTRICT COURT IN
UNITED STATES V. R.J. REYNOLDS TOBACCO CO. OBSERVED, 

    "THE CATALOG OR 'FULL CLASSIFICATION OF THESE AGREEMENTS'

  (I.E., THE 'AGREEMENTS' TO WHICH THE ALEXANDER COMMITTEE'S

  ATTENTION WAS PRIMARILY DIRECTED AND TO WHICH ITS RECOMMENDATIONS

  WERE EXCLUSIVELY DIRECTED) DOES NOT INCLUDE A SINGLE AGREEMENT OF

  MERGER OR OTHER FORM OF CORPORATE REORGANIZATION.  THE

  'AGREEMENTS' REPRESENTED IN THE REPORT ARE ALL 'ON-GOING' IN

  NATURE.  MOST OF THESE 'AGREEMENTS' ARE COOPERATIVE WORKING

  ARRANGEMENTS.  THESE 'AGREEMENTS' DESCRIBE PRACTICES OR REGULAR

  ACTIVITIES IN WHICH TWO OR MORE SHIPPING COMPANIES HAVE AGREED TO

  PARTICIPATE OVER A CONSIDERABLE PERIOD OF TIME.  NONE OF THE

'AGREEMENTS' STUDIED BY THE ALEXANDER COMMITTEE BEARS THE

SLIGHTEST RESEMBLANCE TO AN AGREEMENT OF MERGER, WHICH IS

  ESSENTIALLY A SINGLE, DISCRETE EVENT, WHICH TRANSFORMS THE

  RELATIONSHIP OF THE MERGING PARTIES AT THE INSTANT OF MERGER." 

  325 F.SUPP., AT 658 - 659 (FOOTNOTES OMITTED).  /10/ 

[[HC741'(ORIGINAL DOCUMENT PAGE 741)' 

MOREOVER, IN THE FEW PLACES WHERE THE COMMITTEE DID DISCUSS MERGERS,
IT DISTINGUISHED SHARPLY BETWEEN SUCH ARRANGEMENTS AND THE ONGOING
AGREEMENTS TO WHICH ITS RECOMMENDATIONS WERE DIRECTED.  FOR EXAMPLE, IN
SUMMARIZING ITS FINDINGS THE COMMITTEE WROTE: 

 "THE NUMEROUS METHODS OF CONTROLLING COMPETITION BETWEEN WATER

  CARRIERS IN THE DOMESTIC TRADE, REFERRED TO IN THE PRECEDING

  PAGES, MAY BE GROUPED UNDER THREE HEADINGS, VIZ, (1) CONTROL

  THROUGH THE ACQUISITION OF WATER LINES OR THE OWNERSHIP OF

  ACCESSORIES TO THE LINES; (2) CONTROL THROUGH AGREEMENTS OR

  UNDERSTANDINGS; AND (3) CONTROL THROUGH SPECIAL PRACTICES." 

  ALEXANDER REPORT 409. 

AS THE REYNOLDS COURT CONCLUDED, 

     "CONSISTENTLY THROUGHOUT THE REPORT, MERGERS AND OTHER

  CORPORATE REORGANIZATIONS, WHEN OCCASIONALLY MENTIONED, ARE

  REFERRED TO BY THE TERMS 'CONSOLIDATION BY OWNERSHIP' AND

  'CONTROL THROUGH ACQUISITION,' OR VARIATIONS THEREOF.  NEVER IS

  THE WORK 'AGREEMENT' USED IN THE REPORT TO REFER TO A MERGER

  AGREEMENT. 

[[HC742'(ORIGINAL DOCUMENT PAGE 742)'

  IT IS CLEAR THAT THE ALEXANDER COMMITTEE DISTINGUISHED
CONCEPTUALLY BETWEEN AGREEMENTS IN THE

  SENSE OF ON-GOING, COOPERATIVE AGREEMENTS AND AGREEMENTS OF
'CONSOLIDATION' OR

  'ACQUISITION' (OF WHICH MERGER AGREEMENTS ARE A FORM)."  325
F.SUPP., AT 659 (FOOTNOTES

  OMITTED). 

FINALLY, AN EXAMINATION OF CONTEMPORANEOUS AND RELATED STATUTES
MAKES CLEAR THAT WHEN CONGRESS INTENDED TO BRING ACQUISITIONS AND
MERGERS UNDER CONTROL, IT DID SO IN UNAMBIGUOUS LANGUAGE.  FOR EXAMPLE,
ONLY A FEW YEARS PRIOR TO PASSAGE OF THE SHIPPING ACT, CONGRESS
EXPRESSLY DEALT WITH MERGERS INVOLVING WATER CARRIERS.  IN THE PANAMA
CANAL ACT, 49 U.S.C. ^ 5 (14), CONGRESS PROVIDED THAT: 

"(IT SHALL BE UNLAWFUL FOR ANY CARRIER (AS DEFINED IN THE INTERSTATE
COMMERCE ACT) . . . TO OWN, LEASE, (BY STOCK OWNERSHIP OR OTHERWISE,
EITHER DIRECTLY INDIRECTLY, THROUGH ANY HOLDING COMPANY, OR BY
STOCKHOLDERS OR DIRECTORS IN COMMON, OR IN ANY OTHER MANNER) IN ANY
COMMON CARRIER BY WATER OPERATED THROUGH THE PANAMA CANAL OR ELSEWHERE
WITH WHICH SUCH CARRIER AFORESAID DOES OR MAY COMPETE FOR TRAFFIC OR
ANY VESSEL CARRYING FREIGHT OR PASSENGERS UPON SAID WATER ROUTE OR
ELSEWHERE WITH WHICH SAID RAILROAD OR OTHER CARRIER AFORESAID DOES OR
MAY COMPETE FOR TRAFFIC." 

SIMILARLY, WHEN CONGRESS MEANT TO REQUIRE AGENCY APPROVAL FOR
MERGERS AND ACQUISITIONS, IT DID SO UNAMBIGUOUSLY.  THUS, THE
INTERSTATE COMMERCE ACT, 49 U.S.C. ^ 5 (2) (A) (I) AUTHORIZES THE
INTERSTATE COMMERCE COMMISSION TO GIVE ITS APPROVAL "FOR TWO OR MORE
CARRIERS TO CONSOLIDATE OR MERGE THEIR PROPERTIES OR FRANCHISES, OR ANY
PART THEREOF, INTO ONE CORPORATION FOR THE OWNERSHIP, MANAGEMENT, AND
OPERATION OF THE PROPERTIES THERETOFORE IN SEPARATE OWNERSHIP." 

[[HC743'(ORIGINAL DOCUMENT PAGE 743)'  IN THE SAME MANNER, THE
FEDERAL COMMUNICATIONS ACT, 47 U.S.C. ^ 222 (B) (1) PROVIDES: 

     "IT SHALL BE LAWFUL, UPON APPLICATION TO AND APPROVAL BY THE

  (FEDERAL COMMUNICATIONS) COMMISSION AS HEREINAFTER PROVIDED, FOR

  ANY TWO OR MORE DOMESTIC TELEGRAPH CARRIERS TO EFFECT A

  CONSOLIDATION OR MERGER; AND FOR ANY DOMESTIC TELEGRAPH CARRIER,

AS A PART OF ANY SUCH CONSOLIDATION OR MERGER OR THEREAFTER, TO

  ACQUIRE ALL OR ANY PART OF THE DOMESTIC TELEGRAPH PROPERTIES,

  DOMESTIC TELEGRAPH FACILITIES, OR DOMESTIC TELEGRAPH OPERATIONS

  OF ANY CARRIER WHICH IS NOT PRIMARILY A TELEGRAPH CARRIER." 

EXAMINATION OF THE FEDERAL AVIATION ACT IS PARTICULARLY INSTRUCTIVE
IN THIS REGARD.  TITLE 49 U.S.C. ^ 1382 (A) REQUIRES AIR CARRIERS TO
FILE WITH THE CIVIL AERONAUTICS BOARD FOR PRIOR APPROVAL       'EVERY
CONTRACT OR AGREEMENT . . . FOR POOLING OR APPORTIONING EARNINGS,
LOSSES, TRAFFIC,

  SERVICE, OR EQUIPMENT, OR RELATING TO THE ESTABLISHMENT OF
TRANSPORTATION RATES, FARES,

  CHARGES, OR CLASSIFICATIONS, . . . OR OTHERWISE ELIMINATING
DESTRUCTIVE, OPPRESSIVE, OR

  WASTEFUL COMPETITION, OR FOR REGULATING STOPS, SCHEDULES, AND
CHARACTER OF SERVICE, OR FOR

  OTHER COOPERATIVE WORKING ARRANGEMENTS." 

THIS PROVISION CLOSELY PARALLELS ^ 15 OF THE SHIPPING ACT, AND WAS
OBVIOUSLY MODELED AFTER IT.  YET CONGRESS CLEARLY THOUGHT THE PROVISION
INSUFFICIENT TO BRING DISCRETE MERGER AND ACQUISITION AGREEMENTS WITHIN
THE CIVIL AERONAUTICS BOARD'S JURISDICTION, SINCE IT ENACTED ANOTHER,
SEPARATE PROVISION REQUIRING BOARD APPROVAL WHEN AIR CARRIERS
"CONSOLIDATE OR MERGE THEIR PROPERTIES."  TITLE 49 U.S.C. ^ 1378 (A)
(1).  /11/ 

[[HC744'(ORIGINAL DOCUMENT PAGE 744)'

        IV 

IN LIGHT OF THESE SPECIFIC GRANTS OF MERGER APPROVAL AUTHORITY, WE
ARE UNWILLING TO CONSTRUE THE AMBIGUOUS PROVISIONS OF ^ 15 TO SERVE
THIS PURPOSE--A PURPOSE FOR WHICH IT OBVIOUSLY WAS NOT INTENDED.  AS
THE COURT OF APPEALS FOUND, THE HOUSE COMMITTEE WHICH WROTE ^ 15
"NEITHER SOUGHT INFORMATION NOR HAD DISCUSSION ON SHIP SALE
AGREEMENTS.  THEY WERE NEITHER PART OF THE PROBLEM NOR PART OF THE
SOLUTION."  148 U.S. APP. D.C., AT 432, 460 F.2D, AT 940.  IF, AS
PETITIONER CONTENDS, THERE IS NOW A COMPELLING NEED TO FILL THE GAP IN
THE COMMISSION'S REGULATORY AUTHORITY, THE NEED SHOULD BE MET IN
CONGRESS WHERE THE COMPETING POLICY QUESTIONS CAN BE THRASHED OUT AND A
RESOLUTION FOUND. 

[[HC745'(ORIGINAL DOCUMENT PAGE 745)'  WE ARE NOT READY TO MEET THAT
NEED BY REWRITING THE STATUTE AND LEGISLATIVE HISTORY OURSELVES. 

BUT THE COMMISSION CONTENDS THAT SINCE IT IS CHARGED WITH
ADMINISTRATION OF THE STATUTORY SCHEME, ITS CONSTRUCTION OF THE STATUTE
OVER AN EXTENDED PERIOD SHOULD BE GIVEN GREAT WEIGHT.  SEE, E.G., NLRB
V. HEARST PUBLICATIONS, INC. 322 U.S. 111 (1944).  THIS PROPOSITION
MAY, AS A GENERAL MATTER, BE CONCEDED, ALTHOUGH IT MUST BE TEMPERED
WITH THE CAVEAT THAT AN AGENCY MAY NOT BOOTSTRAP ITSELF INTO AN AREA IN
WHICH IT HAS NO JURISDICTION BY REPEATEDLY VIOLATING ITS STATUTORY
MANDATE.  IN THIS CASE, HOWEVER, THERE IS A DISJUNCTION BETWEEN THE
ABSTRACT PRINCIPLE AND THE EMPIRICAL DATA.  THE COURT BELOW MADE A
DETAILED STUDY OF THE PRIOR COMMISSION CASES RELIED UPON BY PETITIONER
TO BOLSTER ITS INTERPRETATION OF THE STATUTE AND CONCLUDED THAT NONE OF
THEM INVOLVED ASSERTION OF JURISDICTION OVER A CASE SUCH AS THIS, WHERE
THE AGREEMENT IN QUESTION IMPOSED NO ONGOING OBLIGATIONS.  WE FIND IT
UNNECESSARY TO DECIDE WHETHER EVERY PRIOR CASE DECIDED BY THE
COMMISSION CAN BE RECONCILED WITH OUR OPINION TODAY.  IT IS SUFFICIENT
TO NOTE THAT THE CASES DO NOT DEMONSTRATE THE SORT OF LONGSTANDING,
CLEARLY ARTICULATED INTERPRETATION OF THE STATUTE WHICH WOULD BE
ENTITLED TO GREAT JUDICIAL DEFERENCE, PARTICULARLY IN LIGHT OF THE
CLEAR INDICATIONS THAT CONGRESS DID NOT INTEND TO VEST THE COMMISSION
WITH THE AUTHORITY IT IS NOW SEEKING TO ASSERT.  AS THIS COURT HELD IN
A RELATED CONTEXT, 

"THE CONSTRUCTION PUT ON A STATUTE BY THE AGENCY CHARGED WITH
ADMINISTERING IT IS ENTITLED TO DEFERENCE BY THE COURTS, AND ORDINARILY
THAT CONSTRUCTION WILL BE AFFIRMED IF IT HAS A 'REASONABLE BASIS IN
LAW.'  . . . BUT THE COURTS ARE THE FINAL AUTHORITIES ON ISSUES OF
STATUTORY CONSTRUCTION, FTC V. COLGATE-PALMOLIVE CO., 380 U.S. 374,
385, AND 'ARE NOT OBLIGED TO STAND ASIDE AND RUBBER-STAMP THEIR
AFFIRMANCE OF ADMINISTRATIVE DECISIONS THAT THEY DEEM INCONSISTENT WITH
A STATUTORY MANDATE OR THAT FRUSTRATE THE CONGRESSIONAL POLICY
UNDERLYING A STATUTE.' 

[[HC746'(ORIGINAL DOCUMENT PAGE 746)'

  NLRB V. BROWN, 380 U.S. 278, 291."  VOLKSWAGENWERK
AKTIENGESELLSCHAFT V. FMC, 390 U.S., AT

  272. 

IN THIS CASE, WE FIND THAT THE COMMISSION OVERSTEPPED THE LIMITS
WHICH CONGRESS PLACED ON ITS JURISDICTION.  THE JUDGMENT OF THE COURT
OF APPEALS MUST THEREFORE BE

              AFFIRMED. 

/1/  ORIGINALLY, THE SHIPPING ACT CONFERRED JURISDICTION ON THE
UNITED STATES SHIPPING BOARD.  SEE 39 STAT. 728, 729, 733.  OVER THE
YEARS, THE JURISDICTION HERE AT ISSUE HAS BEEN SHIFTED TO THE UNITED
STATES SHIPPING BOARD BUREAU OF THE DEPARTMENT OF COMMERCE, SEE EXEC.
ORDER NO. 6166, ^ 12 (1933), THE UNITED STATES MARITIME COMMISSION, SEE
49 STAT. 1985, THE FEDERAL MARITIME BOARD, SEE 64 STAT. 1273, AND
FINALLY, THE FEDERAL MARITIME COMMISSION, SEE 75 STAT. 840.  FOR
CONVENIENCE, WE WILL FOLLOW THE PRACTICE OF THE PARTIES AND THE COURT
BELOW AND REFER THROUGHOUT TO THE "COMMISSION." 

/2/  THE ACT PROVIDES IN PERTINENT PART, 

"EVERY COMMON CARRIER BY WATER, OR OTHER PERSON SUBJECT TO THIS
CHAPTER, SHALL FILE IMMEDIATELY WITH THE COMMISSION A TRUE COPY, OR, IF
ORAL, A TRUE AND COMPLETE MEMORANDUM OF EVERY AGREEMENT WITH ANOTHER
SUCH CARRIER OR OTHER PERSON SUBJECT TO THIS CHAPTER, OR MODIFICATION
OR CANCELLATION THEREOF, TO WHICH IT MAY BE A PARTY OR CONFORM IN WHOLE
OR IN PART, FIXING OR REGULATING TRANSPORTATION RATES OR FARES; GIVING
OR RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER SPECIAL PRIVILEGES
OR ADVANTAGES; CONTROLLING, REGULATING, PREVENTING, OR DESTROYING
COMPETITION; POOLING OR APPORTIONING EARNINGS, LOSSES, OR TRAFFIC;
ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE NUMBER AND
CHARACTER OF SAILINGS BETWEEN PORTS; LIMITING OR REGULATING IN ANY WAY
THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO BE CARRIED;
OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL, OR
COOPERATIVE WORKING ARRANGEMENT.  THE TERM 'AGREEMENT' IN THIS SECTION
INCLUDES UNDERSTANDINGS, CONFERENCES, AND OTHER ARRANGEMENTS. 

"THE COMMISSION SHALL BY ORDER, AFTER NOTICE AND HEARINGS,
DISAPPROVE, CANCEL, OR MODIFY ANY AGREEMENT, OR ANY MODIFICATION OR
CANCELLATION THEREOF, WHETHER OR NOT PREVIOUSLY APPROVED BY IT, THAT IT
FINDS TO BE UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN CARRIERS,
SHIPPERS, EXPORTERS, IMPORTERS, OR PORTS, OR BETWEEN EXPORTERS FROM THE
UNITED STATES AND THEIR FOREIGN COMPETITIORS, OR TO OPERATE TO THE
DETRIMENT OF THE COMMERCE OF THE UNITED STATES, OR TO BE CONTRARY TO
THE PUBLIC INTEREST, OR TO BE IN VIOLATION OF THIS CHAPTER, AND SHALL
APPROVE ALL OTHER AGREEMENTS, MODIFICATIONS, OR CANCELLATIONS.  . . .

     *          *          *          * 

"ANY AGREEMENT AND ANY MODIFICATION OR CANCELLATION OF ANY AGREEMENT
NOT APPROVED, OR DISAPPROVED, BY THE COMMISSION SHALL BE UNLAWFUL, AND
AGREEMENTS, MODIFICATIONS, AND CANCELLATIONS SHALL BE LAWFUL ONLY WHEN
AND AS LONG AS APPROVED BY THE COMMISSION.  . . ." 

/3/  THE ACT PROVIDES "(EVERY AGREEMENT, MODIFICATION, OR CANCELLATION
LAWFUL UNDER THIS SECTION . . . SHALL BE EXCEPTED FROM THE PROVISIONS
OF SECTIONS 1 TO 11 AND 15 OF TITLE 15, AND AMENDMENTS AND ACTS
SUPPLEMENTARY THERETO."  SINCE THE ACT MAKES LAWFUL THOSE AGREEMENTS
APPROVED BY THE COMMISSION, ITS EFFECT IS TO VEST THE COMMISSION WITH
THE POWER TO SHIELD THOSE AGREEMENTS APPROVED BY IT FROM ANTITRUST
ATTACK.  SEE CARNATION CO. V. PACIFIC WESTBOUND CONFERENCE, 383 U.S.
213, 216 (1966).  BUT CF. FMC V. AKTIEBOLAGET SVENSKA AMERIKA LINIEN,
390 U.S. 238, 242 - 246 (1968). 

/4/  IN LIGHT OF OUR HOLDING THAT THE COMMISSION LACKED JURISDICTION
OVER THIS AGREEMENT, WE DO NOT DECIDE WHETHER THE COMMISSION'S DECISION
THAT SEATRAIN WAS NOT ENTITLED TO A HEARING WOULD HAVE BEEN PROPER IN A
CASE IN WHICH THE COMMISSION PROPERLY ASSERTED JURISDICTION.  CF.
MARINE SPACE ENCLOSURES, INC. V. FMC, 137 U.S. APP. D.C. 9, 420 F.2D
577 (1969). 

/5/  DIRECT APPEAL TO THE COURT OF APPEALS OF FINAL ORDERS OF THE
FEDERAL MARITIME COMMISSION IS AUTHORIZED BY 28 U.S.C. ^ 2342 (3). 

/6/  SEE 28 U.S.C. ^ 2344. 

/7/  THE COMMISSION'S POSITION IN THIS REGARD IS NOT WITHOUT IRONY. 
IN DENYING SEATRAIN'S APPLICATION FOR A HEARING AND APPROVING THE
AGREEMENT, THE COMMISSION HELD THAT SEATRAIN HAD FAILED TO MAKE
SUFFICIENT ALLEGATIONS TO SHOW THAT THE ACQUISITION OF ASSETS WOULD BE
DESTRUCTIVE OF COMPETITION.  YET THE COMMISSION NOW CONTENDS THAT IT
HAD JURISDICTION OVER THE AGREEMENT BECAUSE IT WAS ONE "PREVENTING"
COMPETITION. 

/8/  IT IS TRUE THAT "ANTITURST EXEMPTION RESULTS, NOT WHEN AN
AGREEMENT IS SUBMITTED FOR FILING, BUT ONLY WHEN THE AGREEMENT IS
ACTUALLY APPROVED."  VOLKSWAGENWERK AKTIENGESELLSCHAFT V. FMC, 390 U.S.
261, 273 (1968).  BUT THE FACT REMAINS THAT AN EXPANSIVE READING OF THE
COMMISSION'S JURISDICTION WOULD INCREASE THE NUMBER OF CASES SUBJECT TO
POTENTIAL ANTITRUST IMMUNITY. 

/9/  THE STATUTE ITSELF PROVIDES NO DEFINITION OF THE TERM
"AGREEMENT" BEYOND THE STATEMENT THAT "(THE TERM 'AGREEMENT' IN THIS
ALTHOUGH CERTAINLY NOT DISPOSITIVE, IT IS AT LEAST WORTHY OF NOTE THAT
THESE SYNONYMS GIVEN FOR "AGREEMENT" ARE ALL EVOCATIVE OF ONGOING
ACTIVITY. 

/10/  THE REYNOLDS COURT'S OBSERVATIONS WERE DIRECTED AT THE
COMMITTEE'S STUDY OF FOREIGN TRADE.  IN THIS CONTEXT, THE COMMITTEE
FOUND THAT COMPETITION WAS LARGELY FRUSTRATED BY EXTENSIVE USE OF
CONFERENCE ARRANGEMENTS.  WHEN THE COMMITTEE TURNED TO DOMESTIC TRADE,
IT FOUND THAT "(UNLIKE THE PRACTICE OF WATER CARRIERS IN THE FOREIGN
TRADE OF THE UNITED STATES, AGREEMENTS TO DIVIDE THE TERRITORY OR
CHARGE CERTAIN RATES IN THE DOMESTIC TRADE ARE FEW."  ALEXANDER REPORT
421.  RATHER, IN THE DOMESTIC ARENA, THE COMMITTEE FOUND THAT
COMPETITION WAS CONTROLLED LARGELY THROUGH MERGERS, CHIEFLY BETWEEN
RAILROADS AND WATER CARRIERS.  THE COMMISSION ARGUES FROM THIS FACT
THAT CONGRESS INTENDED MERGER AGREEMENT TO BE FILED, SINCE THE
LEGISLATION WHICH WAS ULTIMATELY ENACTED MADE NO DISTINCTION BETWEEN
FOREIGN AND DOMESTIC TRADE.  BUT THROUGHOUT THE REPORT WHENEVER THE
COMMITTEE REFERRED TO MERGERS AND ACQUISITIONS, IT DISTINGUISHED
SHARPLY BETWEEN THEM AND AGREEMENTS, FOR WHICH THE FILING AND APPROVAL
MECHANISM WAS APPLICABLE.  SEE THE DISCUSSION IN TEXT.  CF. NOTE, THE
SHIPPING INDUSTRY SEEKS A SAFE HAVEN:  MERGER JURISDICTION FOR THE
FMC?, 5 LAW & POL.  INT'L BUS.  274, 285 - 286 (1973).  MOREOVER, A
CAREFUL READING OF THE REPORT MAKES CLEAR THAT THE COMMITTEE ENVISIONED
OTHER DEVICES FOR CONTROLLING THE MERGERS PREVALENT IN THE DOMESTIC
FIELD.  THUS, THE COMMITTEE NOTED THAT THE PANAMA CANAL ACT OF 1912, 49
U.S.C. ^ 5 (14), ALREADY PROHIBITED RAILROADS FROM OWNING OR
CONTROLLING WATER CARRIERS, SEE INFRA, AT 742, AND OBSERVED THAT THIS
REQUIREMENT WENT "FAR TOWARD ELIMINATING SOME OF THE UNDESIRABLE
PRACTICES WHICH WERE FOUND BY THE COMMITTEE TO EXIST IN THE DOMESTIC
COMMERCE OF THE UNITED STATES."  ALEXANDER REPORT 422.  WHILE THE
COMMITTEE MADE OTHER RECOMMENDATIONS WITH RESPECT TO DOMESTIC CARRIERS,
THESE MERELY PARALLELED ITS FOREIGN RECOMMENDATIONS AND, HENCE,
PERTAINED TO "AGREEMENTS" AND "ARRANGEMENTS" RATHER THAN "MERGERS" AND
"ACQUISITIONS" WHICH IT THOUGHT WERE SUFFICIENTLY REGULATED BY EXISTING
LEGISLATION.  SEE ID., AT 422 - 424. 

/11/  THE COMMISSION WOULD HAVE US INFER THAT THE 1916 ACT CONFERRED
JURISDICTION UPON IT FROM AN AMENDMENT ADDED IN 1950 TO ^ 7 OF CLAYTON
ACT, 15 U.S.C. ^ 18, AS AMENDED BY 64 STAT. 1125, 1126.  AS AMENDED,
THE PROVISION SPECIFIES THAT: 

"NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO TRANSACTIONS DULY
CONSUMMATED PURSUANT TO AUTHORITY GIVEN BY THE CIVIL AERONAUTICS BOARD,
FEDERAL COMMUNICATIONS COMMISSION, FEDERAL POWER COMMISSION, INTERSTATE
COMMERCE COMMISSION, THE SECURITIES AND EXCHANGE COMMISSION . . . THE
UNITED STATES MARITIME COMMISSION, OR THE SECRETARY OF AGRICULTURE." 

AS IS CLEAR FROM THE FACE OF THE STATUTE, THE ACT CONFERS NO NEW
JURISDICTION ON ANY OF THE LISTED AGENCIES, BUT MERELY PROVIDES THAT
MERGERS ALREADY EXEMPT FROM CLAYTON ACT COVERAGE WERE TO BE UNAFFECTED
BY CHANGES IN THE ACT.  AS THIS COURT HELD IN CALIFORNIA V. FPC, THE
AMENDED ^ 7 WAS "PLAINLY NOT A GRANT OF POWER TO ADJUDICATE ANTITRUST
ISSUES."  369 U.S. 482, 486 (1962).  HENCE, NOTHING ABOUT THE
COMMISSION'S JURISDICTION CAN BE INFERRED FROM THE INCLUSION OF ITS
PREDECESSOR ON THE LIST.  THIS VIEW IS CONFIRMED BY THE LEGISLATIVE
HISTORY OF THE 1950 AMENDMENT.  ALTHOUGH ACCEDING TO THE COMMISSION'S
REQUEST THAT IT BE INCLUDED IN THE LIST OF AGENCIES LEFT UNAFFECTED BY
THE CLAYTON ACT, SEE LETTER OF GRENVILLE MELLEN, VICE CHAIRMAN, UNITED
STATES MARITIME COMMISSION, TO SENATOR HERBERT O'CONOR, CHAIRMAN,
SENATE SUBCOMMITTEE TO CONSIDER H.R. 2734, SEPT. 29, 1949, REPRINTED IN
BRIEF FOR PETITIONER 52 - 54, THE COMMITTEE MADE EXPLICIT THAT "(IN
MAKING THIS ADDITION . . . IT IS NOT INTENDED THAT THE MARITIME
COMMISSION, OR, FOR THAT MATTER, ANY OTHER AGENCY INCLUDED IN THIS
CATEGORY, SHALL BE GRANTED ANY AUTHORITY OR POWERS WHICH IT DOES NOT
ALREADY POSSESS."  S. REP. NO. 1775, 81ST CONG., 2D SESS., 7 (1950). 

EDWARD G. GRUIS ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS DAVID FISHER. 

IRWIN A. SEIBEL ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF FOR THE UNITED STATES WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL KAUPER, AND WILLIAM BRADFORD REYNOLDS.  MARVIN J.
COLES, NEAL M. MAYER, AND G. BROCKWEL HEYLIN FILED A BRIEF FOR
RESPONDENT SEATRAIN LINES, INC. ODELL KOMINERS AND RICHARD S. SALZMAN
FILED A BRIEF FOR RESPONDENTS PACIFIC FAR EAST LINE, INC., ET AL. 

LAWRENCE E. WALSH, WILLIAM F. RAGAN, AND GUY MILLER STRUVE FILED A
BRIEF FOR R.J. REYNOLDS TOBACCO CO. AS AMICUS CURIAE. 
..END :




















GULF STATES UTILITIES CO. V. FEDERAL POWER COMMISSION ET AL., 411
U.S. 747 



       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT 

     NO. 71 - 1178.  ARGUED DECEMBER 5, 1972--DECIDED MAY 14, 1973;

  147 U.S. APP. D.C. 98, 454 F.2D 941, AFFIRMED. 


    FOLLOWING PETITIONER'S APPLICATION UNDER 204 OF THE FEDERAL

  POWER ACT TO RESPONDENT FEDERAL POWER COMMISSION (FPC) FOR

  AUTHORIZATION OF A BOND ISSUE, TWO INTERVENING CITIES OPPOSED THE

  AUTHORIZATION ON THE GROUND THAT THE PROCEEDS OF THE BOND ISSUE

  WOULD BE USED TO FINANCE OR REFINANCE CERTAIN ANTICOMPETITIVE

  ACTIVITIES IN VIOLATION OF THE ANTITRUST LAWS, THE FEDERAL POWER

  ACT, AND THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935.  SECTION

  204 (A) EMPOWERS THE FPC TO AUTHORIZE A SECURITY ISSUE ONLY IF

THE ISSUE IS FOUND TO BE FOR SOME LAWFUL PURPOSE AND COMPATIBLE

  WITH THE PUBLIC INTEREST.  THE FPC GRANTED THE CITIES' PETITION

  TO INTERVENE, DENIED THEIR REQUEST FOR A HEARING, AND AUTHORIZED

  THE BOND ISSUE, HOLDING THAT THE CITIES' ALLEGATIONS WERE

  IRRELEVANT TO A REQUESTED AUTHORIZATION OF SECURITIES UNDER ^

  204.  THE COURT OF APPEALS REMANDED THE CASE FOR CONSIDERATION OF

  THE CITIES'  CLAIM, HOLDING THAT, IN LINE WITH THE REASONING IN

  DENVER & R.G.W.R. CO. V. UNITED STATES, 387 U.S. 485, THE FPC

  SHOULD HAVE CONSIDERED THE ALLEGED COMPETITIVE CONSEQUENCES OF

 THE BOND ISSUE IN THE ^ 204 PROCEEDING.  HELD: 

     1.  THE FPC, AS A GENERAL RULE, MUST CONSIDER THE

  ANTICOMPETITIVE CONSEQUENCES OF A SECURITY ISSUE UNDER ^ 204. 

PP. 756 - 762. 

     (A) THE FEDERAL POWER ACT DID NOT RENDER ANTITRUST POLICY

  IRRELEVANT TO THE FPC'S REGULATION OF THE ELCTRIC POWER

  INDUSTRY.  PP. 757 - 759. 

(B) THE FACT THAT THE FPC HAS BROAD AUTHORITY UNDER OTHER

 PROVISIONS OF THE ACT TO DETERMINE WHETHER A PUBLIC UTILITY'S

  CONDUCT IS IN THE PUBLIC INTEREST DOES NOT MEAN THAT THE SAME

  STANDARD IS NOT EQUALLY GERMANE UNDER ^ 204.  P. 759. 

     (C) CONSIDERATION OF ANTITRUST POLICIES IN THE CONTEXT OF ^
204

  PROVIDES A FIRST LINE OF DEFENSE AGAINST ANTICOMPETITIVE

  PRACTICES THAT MIGHT LATER BECOME THE SUBJECT OF AN ANTITRUST

  PROCEEDING.  P. 760. 

(D) THE FPC, LIKE THE INTERSTATE COMMERCE COMMISSION, HAS BROAD

  REGULATORY AUTHORITY, WHICH INCLUDES RESPONSIBILITY FOR

  CONSIDERING ANTITRUST POLICY IN DISCHARGING ITS STATUTORY

  OBLIGATIONS.  CF. DENVER & R.G.W.R. CO. V. UNITED STATES, SUPRA.

  PP. 760 - 762. 

     2.  THOUGH THE FPC IS NOT NECESSARILY REQUIRED TO HOLD A

  HEARING OR MAKE A FULL INVESTIGATION IN ALL CASES, ITS SUMMARY

  DISPOSITION OF PROFFERED OBJECTIONS TO THE SECURITY ISSUE

  REQUIRES STRICT SCRUTINY BY A REVIEWING COURT IN LIGHT OF THE

COMMISSION'S OBLIGATIONS TO PROTECT THE PUBLIC INTEREST AND

  ENFORCE THE ANTITRUST LAWS.  PP. 762 - 763. 

     3.  UNEXPLAINED SUMMARY ADMINISTRATIVE ACTION IS INCOMPATIBLE

WITH THE REQUIREMENTS OF ^ 204 AND PRECLUDES APPROPRIATE JUDICIAL

  REVIEW.  PP. 763 - 764. 

[[HC748'(ORIGINAL DOCUMENT PAGE 748)' 

     BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND DOUGLAS, BRENNAN, WHITE, AND MARSHALL, JJ.,

  JOINED.  POWELL, J., FILED A DISSENTING OPINION, IN WHICH STEWART

  AND REHNQUIST, JJ., JOINED, POST, P. 764. 

[[HC749'(ORIGINAL DOCUMENT PAGE 749)' 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER, WHEN A PUBLIC UTILITY
APPLIES TO THE FEDERAL POWER COMMISSION FOR AUTHORITY TO ISSUE A
SECURITY, AS THE UTILITY IS REQUIRED TO DO UNDER ^ 204 OF THE FEDERAL
POWER ACT, 49 STAT. 850, 16 U.S.C. ^ 824C, /1/  THE COMMISSION, IN
PASSING UPON THE APPLICATION, MUST CONSIDER THE ISSUE'S ANTICOMPETITIVE
EFFECT IN DETERMINING WHETHER IT IS "COMPATIBLE WITH THE PUBLIC
INTEREST," AS THAT PHRASE IS EMPLOYED IN ^ 204 (A). 

[[HC750'(ORIGINAL DOCUMENT PAGE 750)'

        I 

IN OCTOBER 1970, GULF STATES UTILITIES COMPANY APPLIED TO THE
FEDERAL POWER COMMISSION FOR AUTHORITY TO ISSUE FOR CASH, ON
COMPETITIVE BIDDING, $30,000,000 FIRST MORTGAGE 30-YEAR BONDS FOR THE
PURPOSE OF REFUNDING PART OF GULF'S THEN-OUTSTANDING COMMERCIAL PAPER
AND SHORTTERM NOTES.  /2/ 

GULF, A TEXAS CORPORATION QUALIFIED TO DO BUSINESS IN LOUISIANA, IS
A PUBLIC UTILITY WITHIN THE MEANING OF ^ 201 (E) OF THE FEDERAL POWER
ACT, 16 U.S.C. ^ 824 (E).  IT IS ENGAGED PRINCIPALLY IN THE BUSINESS OF
GENERATING, DISTRIBUTING, AND SELLING ELECTRIC ENERGY IN SOUTHEASTERN
TEXAS AND SOUTH CENTRAL LOUISIANA IN AN AREA OF APPROXIMATELY 28,000
SQUARE MILES WITH A POPULATION OF ABOUT 1,225,000.  GULF SELLS ELECTRIC
ENERGY AT RETAIL IN NUMEROUS COMMUNITIES IN THAT MARKET AND, AT THE
TIME OF THE APPLICATION, WAS PROVIDING ELECTRIC ENERGY FOR RESALE TO
NINE MUNICIPAL SYSTEMS, 11 RURAL ELECTRIC COOPERATIVES (ONE SERVING
FOUR MUNICIPAL SYSTEMS), AND ONE OTHER UTILITY. 

THE COMMISSION FILED NOTICE OF GULF'S APPLICATION.  35 FED. REG.
16649 (1970).  THEREUPON THE CITIES OF LAFAYETTE AND PLAQUEMINE,
LOUISIANA (CITIES) FILED A PROTEST AND PETITION TO INTERVENE IN THE
PROCEEDINGS BEFORE THE COMMISSION AND REQUESTED A FORMAL HEARING ON
GULF'S APPLICATION. 

[[HC751'(ORIGINAL DOCUMENT PAGE 751)'  THE CITIES ALLEGED THAT GULF,
IN CONCERT WITH TWO OTHER INVESTOR-OWNED UTILITIES, LOUISIANA POWER AND
LIGHT COMPANY (LP&L) AND CENTRAL LOUISIANA ELECTRIC COMPANY (CLECO),
HAD ENGAGED IN ACTIVITIES "APPARENTLY VIOLATIVE OF THE ANTI-TRUST
LAWS," AS WELL AS OF ^ 10 (H) OF THE FEDERAL POWER ACT, 16 U.S.C. ^ 803
(H), /3/  AND OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49
STAT. 838, 15 U.S.C., C. 2C; THAT THESE ACTIVITIES, IN EFFECT, WOULD BE
"FINANCED OR REFINANCED BY THE BONDS HERE PROPOSED"; AND THAT THE
UTILITIES' ACTIVITIES WERE INCOMPATIBLE WITH THE PUBLIC INTEREST.  THE
CITIES OPPOSED THE REQUESTED AUTHORIZATION "UNLESS AND UNTIL GULF
STATES PURGES ITSELF OF THESE PAST VIOLATIONS, OR UNLESS THE COMMISSION
CONDITIONS ITS AUTHORIZATION." 

THE CITIES' CLAIM CENTERED ON AND STRESSED A 1968 INTER-CONNECTION
AND POOLING AGREEMENT BETWEEN THE CITIES, DOW CHEMICAL COMPANY, AND
LOUISIANA ELECTRIC COOPERATIVE, INC. (LEC).  DOW HAS A PLANT NEAR THE
CITIES; THE PLANT HAS GENERATING CAPACITY THAT COULD BE USED BY THE
OTHER MEMBERS OF THE POOL AS EMERGENCY STABILIZING CAPACITY.  LEC IS A
GENERATION AND TRANSMISSION ELECTRIC COOPERATIVE FINANCED BY THE RURAL
ELECTRIFICATION ADMINISTRATION; IT IS A SUPER-COOPERATIVE COMPOSED OF
12 ELECTRIC DISTRIBUTION COOPERATIVES, ALL LOCATED IN THE AREA SERVED
BY THE THREE UTILITIES. 

IN 1964, THE REA WAS CONSIDERING LOANS TO LEC FOR THE CONSTRUCTION
OF A GENERATION STATION AND TRANSMISSION LINES THROUGH WHICH LEC WOULD
BE ABLE TO SERVE EIGHT OF ITS 12 MEMBER ORGANIZATIONS.  THESE MEMBERS
WERE THEN PURCHASING THEIR POWER FROM THE THREE UTILITIES.  THE CITIES
CLAIMED THAT THE THREE UTILITIES HAD ATTEMPTED TO DESTROY LEC, AND
POINTED TO A HISTORY OF "EXTRAORDINARY LITIGATION" INSTITUTED BY THE
UTILITIES BETWEEN 1964 AND 1970 TO PREVENT THE CONSTRUCTION OF THE
STATION AND THE LINES, AND IN FACT DELAYING THAT CONSTRUCTION FOR FIVE
YEARS. 

[[HC752'(ORIGINAL DOCUMENT PAGE 752)'  THE ARRANGEMENT PROPOSED BY
THE 1968 AGREEMENT WOULD ASSURE A MARKET FOR THE PARTIES' SURPLUS
CAPACITY AND WOULD COORDINATE, AT SUBSTANTIAL SAVINGS, THE CONSTRUCTION
OF NEW GENERATORS BY THE PARTIES.  THE THREE UTILITIES,
CORRESPONDINGLY, WOULD LOSE SUBSTANTIAL BUSINESS IF THE 1968
ARRANGEMENT WERE CARRIED OUT.  ACCORDINGLY, CITIES ALLEGED, THE THREE
UTILITIES ENGAGED IN FRIVOLOUS AND REPETITIVE LITIGATION AND LAUNCHED A
PUBLIC RELATIONS AND LOBBYING DRIVE AGAINST LEC IN ORDER TO BLOCK THE
LOAN AND PREVENT FULFILLMENT OF THE AGREEMENT.  CF. CALIFORNIA
TRANSPORT V. TRUCKING UNLIMITED, 404 U.S. 508 (1972). 

THE REA LOAN WAS EFFECTED, HOWEVER, IN 1969.  BUT BY THAT TIME THE
LOAN WAS SUFFICIENT ONLY FOR THE GENERATING FACILITIES EXCLUSIVE OF THE
LINES.  CITIES, DOW, AND LEC, THEN WERE FORCED TO NEGOTIATE WITH THE
THREE UTILITIES FOR THE USE OF THE UTILITIES'  LINES TO TRANSMIT THEIR
POWER, THROUGH THE COURSE OF THE NEGOTIATIONS, TO BLOCK OR LIMIT THE
POOL BY AGREEING ONLY TO PROVIDE TRANSMISSION SERVICES TO SOME OF THE
POOL MEMBERS; BY REFUSING TO SUPPLY TRANSMISSION FACILITIES BETWEEN
POOL MEMBERS UNLESS THE 1968 POOLING AGREEMENT WERE CANCELED; AND BY
DEMANDING THAT LEC LIMIT ITS POWER CAPACITY TO THE WATTAGE ALREADY
PLANNED, THUS GIVING THE THREE UTILITIES THE EXCLUSIVE RIGHT TO SUPPLY
ALL FURTHER POWER NEEDS OF LEC'S 12 COOPERATIVES AND PRECLUDING FURTHER
EXPANSION BY LEC. 

THE CITIES, BY THEIR PROPOSED INTERVENTION, WOULD BRING THESE
ALLEGATIONS BEFORE THE FEDERAL POWER COMMISSION IN THE ^ 204
PROCEEDING.  THEY CLAIMED THAT SUCH ANTICOMPETITIVE CONDUCT WAS
PROPERLY THE SUBJECT OF A ^ 204 PROCEEDING AND THAT, UNDER ^ 204 (B),
16 U.S.C. ^ 824C (B), THE COMMISSION MAY CONDITION ITS APPROVAL OF THE
BOND ISSUE ACCORDINGLY AND PLACE RESTRICTIONS ON GULF'S USE OF THE
PROCEEDS. 

[[HC753'(ORIGINAL DOCUMENT PAGE 753)' 

BY ITS ANSWER, GULF DENIED ANY VIOLATION OF THE ANTI-TRUST LAWS, OF
THE FEDERAL POWER ACT, OR OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF
1935.  IT ALLEGED THAT THE PURPOSE OF ^ 204 OF THE FEDERAL POWER ACT
WAS "TO PREVENT UNSOUND FINANCING WHICH MIGHT IMPAIR THE FINANCIAL
INTEGRITY OF PUBLIC UTILITIES," AND THAT EVEN IF THE ALLEGATIONS OF THE
CITIES WERE ACCEPTED AS TRUE BY THE COMMISSION, THOSE MATTERS WERE
"IRRELEVANT TO THIS APPLICATION." 

BY ORDER ISSUED DECEMBER 3, 1970, 44 F.P.C. 1524, THE COMMISSION
GRANTED THE CITIES PERMISSION TO INTERVENE.  IT DENIED THEIR REQUEST
FOR A HEARING, HOWEVER, AND IT AUTHORIZED THE ISSUANCE AND SALE OF THE
BONDS.  THE ORDER RECITED: 

"THE REQUESTED APPROVAL OF THE ISSUANCE OF THE BONDS ALLOWS)

  THE COMPANY ONLY TO CHANGE THE FORM OF A PORTION OF ITS

  OUTSTANDING INDEBTEDNESS, IT DOES NOT CALL FOR THE INITIATION OF

  ANY CONSTRUCTION OR OTHER PROGRAM BY THE COMPANY WHICH MIGHT

  AFFECT THE INTEREST OF THE PETITIONERS.  THE ALLEGED VIOLATIONS

  WHICH PETITIONERS ATTEMPT TO RAISE IN THIS PROCEEDING ARE

  IRRELEVANT TO A REQUESTED AUTHORIZATION OF SECURITIES.  THERE IS

  NO RELIEF THAT THE COMMISSION CAN ORDER IN AUTHORIZING THE

  ISSUANCE OF THE BONDS FOR REFINANCING PURPOSES THAT WOULD HAVE

  ANY EFFECT ON THE INTEREST OF THE PETITIONERS, OR SOLVE ANY OF

  THE PROBLEMS OUTLINED BY THEM."  ID., AT 1525. 

THE COMMISSION SPECIFICALLY FOUND: 

     "THE MATTERS ASSERTED AND ACTIVITIES ALLEGED IN THE FILED

  PROTEST AND PETITION TO INTERVENE BY THE CITIES OF LAFAYETTE AND

  PLAQUEMINE, LOUISIANA, ARE IRRELEVANT TO THE PURPOSE OF ISSUING

  BONDS TO REFUND SHORT TERM INDEBTEDNESS HERETOFORE AUTHORIZED BY

  THIS COMMISSION."  ID., AT 1526. 

[[HC754'(ORIGINAL DOCUMENT PAGE 754)' 

THE PETITION FOR REHEARING REQUIRED BY ^ 313 (A) OF THE ACT, 16
U.S.C. ^ 825L (A), SEE DEPARTMENT OF FISH & GAME V. FPC, 359 F.2D 165,
168 - 169 (CA9), CERT. DENIED, 385 U.S. 932 (1966), WAS FILED BY THE
CITIES, AND WAS DENIED. 

REVIEW WAS SOUGHT PURSUANT TO ^ 313 (B) OF THE ACT, 16 U.S.C. ^ 825
L (B), IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.  A UNANIMOUS PANEL OF THAT COURT DISAGREED WITH THE
COMMISSION AND REMANDED THE CASE TO IT FOR CONSIDERATION OF THE CLAIMS
RAISED BY THE CITIES, SUB NOM. CITY OF LAFAYETTE V. SEC, 147 U.S. APP.
D.C. 98, 454 F.2D 941 (1971).  THE COURT RECOGNIZED THAT THE
COMMISSION'S CONTENTION THAT GULF'S OPERATIONS "COULD HAVE NO
MEANINGFUL RELATION TO AN APPLICATION THAT ONLY SOUGHT TO REPLACE SHORT
TERM NOTES WITH LONG TERM BONDS"  WAS "NOT WITHOUT APPEAL, AND ALSO NOT
WITHOUT PROBLEMS."  ID., AT 109, 454 F.2D, AT 952.  THE COURT
CONCLUDED, HOWEVER, THAT THE "CRYPTIC STATEMENT OF THE FPC DOES NOT
PERMIT US TO CONCLUDE WITH REASONABLE CONFIDENCE THAT THIS WAS THE
POSITION TAKEN BY THE FPC."  IBID.  IT OBSERVED THAT THE COMMISSION MAY
HAVE REJECTED THE CITIES' ALLEGATIONS OUT OF HAND UPON THE AUTHORITY OF
ITS EARLIER DECISION IN PACIFIC POWER & LIGHT CO., 27 F.P.C. 623
(1962), A POSITION THE COURT OF APPEALS VIEWED AS UNTENABLE UNDER THIS
COURT'S SUBSEQUENT DECISION IN DENVER & R.G.W.R. CO. V. UNITED STATES,
387 U.S. 485 (1967).  /4/ 

[[HC755'(ORIGINAL DOCUMENT PAGE 755)' 

INASMUCH AS THE DECISION OF THE COURT OF APPEALS RAISED ISSUES OF
POTENTIAL AND RECURRING IMPORTANCE WITH RESPECT TO THE AUTHORIZATION OF
SECURITIES BY THE FEDERAL POWER COMMISSION, WE GRANTED CERTIORARI.  406
U.S. 956 (1972).  THE COMMISSION TOOK THE POSITION THAT THE COURT OF
APPEALS WAS IN ERROR, BUT NEVERTHELESS OPPOSED THE GRANT. 

[[HC756'(ORIGINAL DOCUMENT PAGE 756)'

        II 

THE MANDATE THAT ^ 204 OF THE FEDERAL POWER ACT, 16 U.S.C. ^ 824C,
IMPOSES UPON THE COMMISSION IS A BROAD AND IMPRESSIVE ONE.  SECTION 204
(A) EMPOWERS THE COMMISSION TO AUTHORIZE THE ISSUE OF A SECURITY BY A
PUBLIC UTILITY ONLY "IF IT FINDS THAT SUCH ISSUE . . . IS FOR SOME
LAWFUL OBJECT, WITHIN THE CORPORATE PURPOSES OF THE APPLICANT AND
COMPATIBLE WITH THE PUBLIC INTEREST."  THIS REQUIRES THE COMMISSION TO
INQUIRE INTO AND TO BE SATISFIED WITH THE PURPOSES OF THE ISSUE AND ITS
LAWFULNESS.  AND EVEN IF ITS "OBJECT" IS LAWFUL, THE NECESSARY INQUIRY
IS NOT ENDED, FOR, IN ADDITION, THE OBJECT MUST BE "COMPATIBLE WITH THE
PUBLIC INTEREST." 

IN MAKING ITS DETERMINATION UNDER ^ 204 (A), THE COMMISSION IS GIVEN
BROAD POWERS OF INQUIRY AND ENFORCEMENT.  BY ^ 204 (B) IT MAY HOLD
HEARINGS ON THE APPLICATION, MAY GRANT THE APPLICATION "IN WHOLE OR IN
PART," MAY MODIFY IT, AND MAY IMPOSE SUCH TERMS OR CONDITIONS "AS IT
MAY FIND NECESSARY OR APPROPRIATE."  AFTER OPPORTUNITY FOR HEARING, AND
FOR GOOD CAUSE SHOWN, IT ALSO MAY SUPPLEMENT, MODIFY, OR CONDITION ANY
PREVIOUS ORDER "AS IT MAY FIND NECESSARY OR APPROPRIATE."  AFTER
OPPORTUNITY FOR HEARING, AND FOR GOOD CAUSE SHOWN, IT ALSO MAY
SUPPLEMENT, MODIFY, OR CONDITION ANY PREVIOUS ORDER "AS IT MAY FIND
NECESSARY OR APPROPRIATE."  IBID.  SECTION 204 (C) GRANTS THE
COMMISSION AUTHORITY TO SPECIFY THE PURPOSE TO WHICH THE PROCEEDS OF
THE SECURITY MAY BE APPLIED AND THE AMOUNT ALLOWED FOR THAT PURPOSE. 
WHILE, AS GULF OBSERVES, ^^ 204 (E) AND (F) EXEMPT FROM ^ 204 (A)
CERTAIN TRANSACTIONS THAT CONCERN SHORT-TERM OBLIGATIONS AS WELL AS
PUBLIC UTILTIES THAT ARE "ORGANIZED AND OPERATING IN A STATE UNDER THE
LAWS OF WHICH ITS SECURITY ISSUES ARE REGULATED BY A STATE COMMISSION,"
THESE EXEMPTIONS /5/  DO NOT SIGNIFICANTLY DETRACT FROM THE SWEEPING
POWERS AND RESPONSIBILITIES OF THE COMMISSION WITH RESPECT TO PUBLIC
UTILITY SECURITY ISSUES GENERALLY. 

[[HC757'(ORIGINAL DOCUMENT PAGE 757)' 

WE ARE ASKED TO HOLD THAT THE COMMISSION'S RESPONSIBILITIES UNDER ^
204 DO NOT EXTEND TO CONSIDERATION ON ITS PART OF POSSIBLE
ANTICOMPETITIVE CONSEQUENCES FLOWING FROM THE ISSUANCE OF A SECURITY. 
GULF AND THE COMMISSION BOTH ARGUE THAT ADMINISTRATIVE INQUIRY UNDER ^
204 IS TO BE NARROWLY CONFINED TO THE PREVENTION OF THE ISSUANCE OF A
SECURITY THAT MIGHT IMPAIR THE UTILITY'S FINANCIAL INTEGRITY OR ITS
ABILITY TO PERFORM ITS PUBLIC UTILITY SERVICES AND RESPONSIBILITIES. 
EXACTLY THIS INTERPRETATION WAS PLACED ON ^ 204 BY THE COMMISSION IN
1962 IN PACIFIC POWER & LIGHT CO., 27 F.P.C., AT 626.  /6/  GULF AND
THE COMMISSION CONTEND THAT ANTITRUST CONSIDERATIONS OF THE KIND
ASSERTED BY THE CITIES DO NOT FALL WITHIN THE LIMITED SCOPE OF ^ 204 AS
THUS DEFINED, AND CONSIDERATION BY THE COMMISSION OF SUCH BROAD-RANGING
ISSUES WOULD BE INCOMPATIBLE WITH THE NEED FOR RELATIVELY FAST ACTION
BY THE COMMISSION WHEN IT PASSES UPON A PROPOSED SECURITY ISSUE.  IT IS
SAID THAT ALLEGATIONS OF ANTICOMPETITIVE CONDUCT PROPERLY MAY BE RAISED
AND FULLY CONSIDERED IN OTHER PROCEEDINGS RELATED TO INTERCONNECTIONS
UNDER ^ 202 OF THE ACT, 16 U.S.C. ^ 824A, TO DISPOSITIONS AND MERGERS
UNDER ^ 203, 16 U.S.C. ^ 824B, TO RATES AND RATE-MAKING PRACTICES UNDER
^^ 205 AND 206, 16 U.S.C. ^^ 824D AND 824E, AND TO ADEQUACY OF SERVICE
UNDER ^ 207, 16 U.S.C. ^ 824F. 

ALTHOUGH ALLEGATIONS SIMILAR TO THOSE RAISED HERE MAY, INDEED, BE
MADE IN SUCH OTHER PROCEEDINGS UNDER THE FEDERAL POWER ACT, WE DO NOT
REGARD THAT FACT AS DETERMINATIVE OF THE SCOPE OF COMMISSION INQUIRY
UNDER ^ 204.  INSTEAD, THE COMMISSION'S BROAD AUTHORITY TO CONSIDER
ANTICOMPETITIVE AND OTHER CONDUCT TOUCHING THE "PUBLIC INTEREST" UNDER
THE OTHER SECTIONS OF THE ACT EMPHASIZES THE BREADTH OF ITS AUTHORITY
UNDER THE PUBLIC INTEREST STANDARD GENERALLY AND AS EMBODIED IN ^ 204. 
[[HC758'(ORIGINAL DOCUMENT PAGE 758)'  THIS STATUTE WAS ENACTED AS
PART OF TIT. II OF THE PUBLIC UTILITY ACT OF 1935, 49 STAT. 803, 850. 
THE ACT HAD TWO PRIMARY AND RELATED PURPOSES:  TO CURB ABUSIVE
PRACTICES OF PUBLIC UTILITY COMPANIES BY BRINGING THEM UNDER EFFECTIVE
CONTROL, AND TO PROVIDE EFFECTIVE FEDERAL REGULATION OF THE EXPANDING
BUSINESS OF TRANSMITTING AND SELLING ELECTRIC POWER IN INTERSTATE
COMMERCE.  49 STAT. 803 - 804, 847 - 848; S. REP. NO. 621, 74TH CONG.,
1ST SESS., 1 - 4, 17 - 20; H.R. REP. NO. 1318, 74TH CONG., 1ST SESS.,
3, 7 - 8; JERSEY CENTRAL CO. V. FPC, 319 U.S. 61, 67 - 68 (1943); SEE
NORTH AMERICAN CO. V. SEC, 327 U.S. 686 (1946).  THE ACT WAS PASSED IN
THE CONTEXT OF, AND IN RESPONSE TO, GREAT CONCENTRATIONS OF ECONOMIC
AND EVEN POLITICAL POWER VESTED IN POWER TRUSTS, AND THE ABSENCE OF
ANTITRUST ENFORCEMENT TO RESTRAIN THE GROWTH AND PRACTICES OF PUBLIC
UTILITY HOLDING COMPANIES.  SEE S. REP. NO. 621, SUPRA, AT 11 - 12;
UTILITY CORPORATIONS--SUMMARY REPORT, 70TH CONG., 1ST SESS., S. DOC.
NO. 92, PART 73 - A, 47 - 54; 79 CONG. REC. 8392 (1935). 

IN ORDER TO ACHIEVE FEDERAL REGULATION OF THESE AND OTHER PERCEIVED
PROBLEMS ON THE OPERATIONAL LEVEL OF THE INTERSTATE PUBLIC UTILITY
BUSINESS, TIT. II WAS ENACTED.  S.REP.  NO. 621, SUPRA, AT 17; H.R.
REP. NO. 1318, SUPRA, AT 7.  PART II OF TIT. II WAS DENOMINATED THE
FEDERAL POWER ACT, 49 STAT. 863.  TITLE II CERTAINLY DID NOT PRECLUDE
THE OPERATION OF THE ANTITRUST LAWS, AND IT VESTED THE FEDERAL POWER
COMMISSION WITH IMPORTANT AND BROAD REGULATORY POWER IN THE AREAS
DESCRIBED ABOVE.  SEE OTTER TAIL POWER CO. V. UNITED STATES, 410 U.S.
366 (1973); MEEKS, CONCENTRATION IN THE ELECTRIC POWER INDUSTRY:  THE
IMPACT OF ANTITRUST POLICY, 72 CO. L. REV. 64 (1972).  THIS POWER
CLEARLY CARRIES WITH IT THE RESPONSIBILITY TO CONSIDER, IN APPROPRIATE
CIRCUMSTANCES, THE ANTI-COMPETITIVE EFFECT OF REGULATED ASPECTS OF
INTERSTATE UTILITY OPERATIONS PURSUANT TO ^^ 202 AND 203, AND UNDER
LIKE DIRECTIVES CONTAINED IN ^^ 205, 206, AND 207. 

[[HC759'(ORIGINAL DOCUMENT PAGE 759)'  THE ACT DID NOT RENDER
ANTITRUST POLICY IRRELEVANT TO THE COMMISSION'S REGULATION OF THE
ELECTRIC POWER INDUSTRY.  INDEED, WITHIN THE CONFINES OF A BASIC
NATURAL MONOPOLY STRUCTURE, LIMITED COMPETITION OF THE SORT PROTECTED
BY THE ANTITRUST LAWS SEEMS TO HAVE BEEN ANTICIPATED.  SEE OTTER TAIL
POWER CO. V. UNITED STATES, SUPRA, AT 373 - 374; CALIFORNIA V. FPC, 369
U.S. 482 (1962); S. REP. NO. 621, SUPRA, AT 12; HEARINGS BEFORE THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 5423, 74TH
CONG., 1ST SESS., 157 - 159 (1935); SUMMARY REPORT, SUPRA, AT 52;
MEEKS, SUPRA. 

NOTHING IN THE ACT SUGGESTS THAT THE "PUBLIC INTEREST" STANDARD OF ^
204 CONTAINS ANY LESS BROAD DIRECTIVE THAN THAT CONTAINED IN THE OTHER
SIMILARLY WORDED AND ADJACENT SECTIONS.  UNDER THE EXPRESS LANGUAGE OF
^ 204 THE PUBLIC INTEREST IS STRESSED AS A GOVERNING FACTOR.  THERE IS
NOTHING THAT INDICATES THAT THE MEANING OF THAT TERM IS TO BE
RESTRICTED TO FINANCIAL CONSIDERATIONS, WITH EVERY OTHER ASPECT OF THE
PUBLIC INTEREST IGNORED.  FURTHER, THERE IS THE SECTION'S REQUIREMENT
THAT THE OBJECT OF THE ISSUE BE LAWFUL.  THE COMMISSION IS DIRECTED TO
INQUIRE INTO AND TO EVALUATE THE PURPOSE OF THE ISSUE AND THE USE TO
WHICH ITS PROCEEDS WILL BE PUT.  WITHOUT A MORE DEFINITE INDICATION OF
CONTRARY LEGISLATION PURPOSE, WE SHALL NOT READ OUT OF ^ 204 THE
REQUIREMENT THAT THE COMMISSION CONSIDER MATTERS RELATING TO BOTH THE
BROAD PURPOSES OF THE ACT AND THE FUNDAMENTAL NATIONAL ECONOMIC POLICY
EXPRESSED IN THE ANTITRUST LAWS.  SEE FMC V. SVENSKA AMERIKA LINIEN,
390 U.S. 238, 244 (1968); CALIFORNIA V. FPC, 369 U.S., AT 484 - 485;
FCC V. RCA COMMUNICIATIONS, INC., 346 U.S. 86, 94 (1953); MCLEAN
TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 80 (1944).  CF. REPORT OF
NATIONAL POWER POLICY COMMITTEE ON PUBLIC-UTILITY HOLDING COMPANIES, IN
S. REP. NO. 621, SUPRA, AT 55, 59 (APP.). 

[[HC760'(ORIGINAL DOCUMENT PAGE 760)'  CONSIDERATION OF ANTITRUST
AND ANTICOMPETITIVE ISSUES BY THE COMMISSION, MOREOVER, SERVES THE
IMPORTANT FUNCTION OF ESTABLISHING A FIRST LINE OF DEFENSE AGAINST
THOSE COMPETITIVE PRACTICES THAT MIGHT LATER BE THE SUBJECT OF
ANTITRUST PROCEEDINGS.  THIS IS PARTICULARLY SIGNIFICANT IN THE CONTEXT
OF A SECURITY ISSUE UNDER ^ 204, FOR APPROPRIATE CONSIDERATION AT A PRE
ISSUE STAGE MAY AVOID THE NEED LATER TO UNRAVEL COMPLEX TRANSACTIONS IN
GRANTING RELIEF UNDER THE ANTITRUST LAWS OR OTHER SECTIONS OF THE
FEDERAL POWER ACT. 

OUR CONCLUSION IS REINFORCED BY THE DECISION IN DENVER & R.G.W.R.
CO. V. UNITED STATES, 387 U.S. 485 (1967).  IN THAT CASE THE COURT
CONCLUDED THAT THE INTERSTATE COMMERCE COMMISSION, IN PERFORMING ITS
DUTY UNDER ^ 20A (2) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. ^ 20A
(2), TO DETERMINE WHETHER THE ISSUANCES OF A PARTICULAR SECURITY IS
"FOR SOME LAWFUL OBJECT . . . AND COMPATIBLE WITH THE PUBLIC INTEREST,"
IS REQUIRED, AS A GENERAL RULE, TO CONSIDER THE ANTICOMPETITIVE
CONSEQUENCES OF THE ISSUE.  SECTION 204 OF THE FEDERAL POWER ACT WAS
MODELED UPON ^ 20A OF THE INTERSTATE COMMERCE ACT.  THE INITIAL DRAFT
OF ^ 204 WAS WITHOUT ANY BROAD REFERENCE TO THE PUBLIC INTEREST. 
INSTEAD, IT IDENTIFIED FOUR SPECIFIC PURPOSES FOR WHICH A UTILITY COULD
ISSUE A SECURITY (PROPERTY ACQUISITION; EXPANSION OR IMPROVEMENT OF
FACILITIES OR SERVICE; DISCHARGE OR LAWFUL REFUNDING; AND REIMBURSEMENT
OF OTHER EXPENDITURES FOR SUCH PURPOSES).  H.R. 5423, ^ 206, 74TH
CONG., 1ST SESS., 108 - 109; S. 1725, ^ 206, 74TH CONG., 1ST SESS., 109
- 110.  /7/  THIS PROVISION INTENTIONALLY WAS REPLACED WITH THE BROADER
LANGUAGE NOW CONTAINED IN ^ 204 IN ORDER "TO ATTAIN GREATER FLEXIBILITY
AND WORKABILITY THAN WOULD HAVE BEEN POSSIBLE UNDER THE ORIGINAL

[[HC761'(ORIGINAL DOCUMENT PAGE 761)'  THE LANGUAGE DEFINING THE
PURPOSES FOR WHICH SECURITIES MAY BE ISSUED HAS BEEN TAKEN
SUBSTANTIALLY FROM SECTION 20A OF THE INTERSTATE COMMERCE ACT, WHICH
HAS PROVED ITS USEFULNESS."  S. REP. NO. 621, SUPRA, AT 20.  THERE WAS,
THUS, A DEPARTURE FROM THE SPECIFIC, AND A SELECTION OF THE GENERAL. 
WE PERCEIVE NO REASON TO VIEW THE RESPONSIBILITY PLACED ON THE FPC
UNDER ^ 204 DIFFERENTLY FROM THE ICC'S RESPONSIBILITY UNDER ^ 20A OF
THE INTERSTATE COMMERCE ACT.  EACH AGENCY POSSESSES BROAD REGULATORY
AUTHORITY.  EACH IS CHARGED WITH RESPONSIBILITY FOR CONSIDERING
ANTITRUST POLICY UNDER ITS STATUTE.  AND ^ 204 AND ^ 20A ARE VIRTUALLY
IDENTICAL IN LANGUAGE.  /8/  THE FACT THAT THE ICC HAS A SPECIFIC
OBLIGATION UNDER ^ 11 (A) OF THE CLAYTON ACT, 15 U.S.C. ^ 21 (A), TO
ENFORCE ^ 7 OF THAT ACT, AS WELL AS A RESPONSIBILITY TO ADVANCE THE
NATIONAL TRANSPORTATION POLICY, DID NOT CONTROL THE DECISION IN THE
DENVER CASE, SEE 387 U.S., AT 492 - 493, AND THE ABSENCE OF A PARALLEL
REFERENCE IN ^ 11 OF THE CLAYTON ACT WITH RESPECT TO THE FEDERAL POWER
COMMISSION IS NOT TO BE DEEMED CONTROLLING.  CF. CALIFORNIA V. FPC, 369
U.S. 482 (1962). 

[[HC762'(ORIGINAL DOCUMENT PAGE 762)'

        III 

OUR CONCLUSION THAT THE FPC MUST CONSIDER ANTICOMPETITIVE ASPECTS OF
A SECURITY ISSUE TO WHICH ^ 204 APPLIES DOES NOT END THE INQUIRY, FOR
TWO SUBORDINATE QUESTIONS REMAIN:  WHETHER THE AGENCY ABUSED ITS
AUTHORITY IN REFUSING TO HOLD A HEARING ON THE CITIES' OBJECTIONS, AND
WHETHER, ON THE FACTS OF THIS CASE, THE COMMISSION IMPROPERLY REJECTED
THE CITIES' ALLEGATIONS OUT OF HAND ON THE GROUND THAT THEY WERE
IRRELEVANT TO THE SECURITY ISSUE FOR WHICH GULF SOUGHT APPROVAL. 

GULF ASSERTS THAT EVEN IF THE COMMISSION IS REQUIRED TO INVESTIGATE
AND TO CONSIDER THE CITIES' OBJECTIONS UNDER ^ 204, ITS REFUSAL TO DO
SO HERE WAS NOT ERROR, FOR THE COMMISSION MAY SUMMARILY DISPOSE OF
OBJECTIONS OF THIS KIND WITHOUT A HEARING AND EXTENDED INVESTIGATIONS. 
OUR CONCLUSION THAT, AS A GENERAL RULE, THE COMMISSION MUST CONSIDER
ANTICOMPETITIVE CONSEQUENCES OF A SECURITY ISSUE UNDER ^ 204 DOES NOT
MEAN THAT THE COMMISSION MUST HOLD A HEARING ON OBJECTIONS IN EVERY
CASE.  NEITHER DOES IT MEAN THAT EVERY ALLEGATION MUST BE FULLY
INVESTIGATED REGARDLESS OF ITS FACIAL MERIT, OR THAT CONSIDERATION OF
THE ALLEGATIONS MAY NOT, IN APPROPRIATE CIRCUMSTANCES, BE DEFERRED, OR
THAT THE MAJOR PORTION OF A SECURITIES ISSUE MAY NOT FORTHWITH BE
AUTHORIZED AND ONLY THE REMAINDER WITHHELD FOR FURTHER STUDY.  /9/  SO
STRICT A RULE WOULD UNDULY LIMIT THE DISCRETION THE COMMISSION MUST
HAVE IN ORDER TO MOLD ITS PROCEDURES TO THE EXIGENCIES OF THE
PARTICULAR CASE, AND WOULD BE UNREALISTIC IN THE LIGHT OF THE NATURE OF
A PROCEEDING UNDER ^ 204.  THE NEED FOR FLEXIBILITY, PLANNING, AND
RAPID COORDINATED ACTION IS PARTICULARLY ACUTE WITH RESPECT TO THE SALE
OF A SECURITY ON THE MARKET. 

[[HC763'(ORIGINAL DOCUMENT PAGE 763)'  BUT WHERE THE COMMISSION
SUMMARILY DISPOSES OF PROFFERED OBJECTIONS, OR WHERE IT EXERCISES ITS
DISCRETION TO APPROVE AN ISSUE WITHOUT CONSIDERING ITS ANTI-COMPETITIVE
CONSEQUENCES, "THE REVIEWING COURT MUST CLOSELY SCRUTINIZE ITS ACTION
IN LIGHT OF THE . . . STATUTORY OBLIGATIONS TO PROTECT THE PUBLIC
INTEREST AND TO ENFORCE THE ANTITRUST LAWS.  WHETHER OR NOT AN ABUSE OF
DISCRETION IS PRESENT MUST ULTIMATELY DEPEND UPON THE TRANSACTION
APPROVED, ITS POSSIBLE CONSEQUENCES, AND ANY JUSTIFICATIONS FOR THE
DEFERRAL" OR SUMMARY TREATMENT.  DENVER, 387 U.S., AT 498.  DENVER, AS
WE HAVE NOTED, CONCERNED THE ICC, BUT THE FOREGOING QUOTATION FROM THAT
OPINION HAS EQUALLY FORCEFUL APPLICATION IN THE FPC CONTEXT. 

GULF ALSO STRENUOUSLY URGES THAT THE COMMISSION IN FACT DID CONSIDER
CITIES' ALLEGATIONS, ALTHOUGH SUMMARILY, AND PROPERLY REJECTED THEM ON
THEIR MERITS AS HAVING NO RELATION TO THE SECURITY ISSUE OR TO ANY
POSSIBLE FUTURE ANTICOMPETITIVE CONDUCT IN WHICH GULF MIGHT ENGAGE.  WE
HAVE NOTED ABOVE THAT THE COURT OF APPEALS OBSERVED, 147 U.S. APP.
D.C., AT 109, 454 F.2D, AT 952, THAT CERTAIN ASPECTS OF THIS ARGUMENT
ARE NOT WITHOUT SUBSTANTIAL APPEAL.  ON THE BASIS OF THE RECORD BEFORE
US, WE CANNOT SAY THAT, UPON CONSIDERATION OF THE OBJECTIONS RAISED BY
THE CITIES, THE COMMISSION WOULD NOT BE JUSTIFIED IN REJECTING THEM
SUMMARILY.  BUT SUCH SUMMARY ACTION MAY NOT GO UNEXPLAINED IN THE FACE
OF THE STATUTORY OBLIGATION PLACED ON THE COMMISSION UNDER ^ 204.  THE
DECISION THE COMMISSION WOULD NOT BE JUSTIFIED IN REJECTING THEM
SUMMARILY.  BUT SUCH SUMMARY ACTION MAY NOT GO UNEXPLAINED IN THE FACE
OF THE STATUTORY OBLIGATION PLACED ON THE COMMISSION UNDER ^ 204.  THE
DECISION THE COMMISSION THUS FAR HAS MADE PROVIDES US WITH AN
INADEQUATE EXPLANATION OF ITS REASONS FOR DISPOSING OF THE CITIES'
OBJECTIONS ON THEIR MERITS, IF THAT IN FACT IS WHAT OCCURRED.  WE ARE
PROVIDED WITH NO EXPLANATION OF WHY SUMMARY ACTION WAS WARRANTED, AND
WE ARE PROVIDED WITH NO REASON FOR THE COMMISSION'S POSSIBLE CONCLUSION
THAT THE OBJECTIONS WERE MERITLESS. 

[[HC764'(ORIGINAL DOCUMENT PAGE 764)'  WITHOUT MORE, WE ARE UNABLE
"CLOSELY (TO) SCRUTINIZE" THE COMMISSION'S ACTION.  NOR MAY WE SUPPLY
AN ALTERNATIVE, UNSTATED GROUND TO SUPPORT AN AGENCY'S DECISION IF THAT
GROUND IS ONE THAT "THE AGENCY ALONE IS AUTHORIZED TO MAKE."  SEC V.
CHENERY CORP., 318 U.S. 80, 88 (1943). 

THE DECISION OF THE COURT OF APPEALS IN REMANDING THE CASE TO THE
FEDERAL POWER COMMISSION IS

              AFFIRMED. 

/1/  "^ 824C.  ISSUANCE OF SECURITIES; ASSUMPTION OF LIABILITIES;
FILING DUPLICATE REPORTS WITH SECURITIES AND EXCHANGE COMMISSION. 

"(A) NO PUBLIC UTILITY SHALL ISSUE ANY SECURITY . . . UNLESS AND
UNTIL, AND THEN ONLY TO THE EXTENT THAT, UPON APPLICATION BY THE PUBLIC
UTILITY, THE COMMISSION BY ORDER AUTHORIZES SUCH ISSUE . . . . THE
COMMISSION SHALL MAKE SUCH ORDER ONLY IF IT FINDS THAT SUCH ISSUE . . .
(A) IS FOR SOME LAWFUL OBJECT, WITHIN THE CORPORATE PURPOSES OF THE
APPLICANT AND COMPATIBLE WITH THE PUBLIC INTEREST, WHICH IS NECESSARY
OR APPROPRIATE FOR OR CONSISTENT WITH THE PROPER PERFORMANCE BY THE
APPLICANT OF SERVICE AS A PUBLIC UTILITY AND WHICH WILL NOT IMPAIR ITS
ABILITY TO PERFORM THAT SERVICE, AND (B) IS REASONABLE NECESSARY OR
APPROPRIATE FOR SUCH PURPOSES.  . . . 

"(B) THE COMMISSION, AFTER OPPORTUNITY FOR HEARING, MAY GRANT ANY
APPLICATION UNDER THIS SECTION IN WHOLE OR IN PART, AND WITH SUCH
MODIFICATIONS AND UPON SUCH TERMS AND CONDITIONS AS IT MAY FIND
NECESSARY OR APPROPRIATE, AND MAY FROM TIME TO TIME, AFTER OPPORTUNITY
FOR HEARING AND FOR GOOD CAUSE SHOWN, MAKE SUCH SUPPLEMENTAL ORDERS IN
THE PREMISES AS IT MAY FIND NECESSARY OR APPROPRIATE, AND MAY BY ANY
SUCH SUPPLEMENTAL ORDER MODIFY THE PROVISIONS OF ANY PREVIOUS ORDER AS
TO THE PARTICULAR PURPOSES, USES, AND EXTENT TO WHICH, OR THE
CONDITIONS UNDER WHICH, ANY SECURITY SO THERETOFORE AUTHORIZED OR THE
PROCEEDS THEREOF MAY BE APPLIED, SUBJECT ALWAYS TO THE REQUIREMENTS OF
SUBSECTION (A) OF THIS SECTION. 

"(C) NO PUBLIC UTILITY SHALL, WITHOUT THE CONSENT OF THE COMMISSION,
APPLY ANY SECURITY OR ANY PROCEEDS THEREOF TO ANY PURPOSE NOT SPECIFIED
IN THE COMMISSION'S ORDER, OR SUPPLEMENTAL ORDER, OR TO ANY PURPOSE IN
EXCESS OF THE AMOUNT ALLOWED FOR SUCH PURPOSES IN SUCH ORDER, OR
OTHERWISE IN CONTRAVENTION OF SUCH ORDER." 

/2/  GULF, IN ITS SECURITIES AND EXCHANGE COMMISSION REGISTRATION
STATEMENT FOR THE BONDS, STATED THAT THE PROCEEDS RECEIVED FROM THE
NOTES TO BE REFINANCED HAD BEEN USED "IN CONNECTION WITH THE COMPANY'S
CONSTRUCTION PROGRAM AND FOR OTHER CORPORATE PURPOSES."  APP. 162.  THE
NOTES THEMSELVES HAD BEEN ISSUED UPON THE AUTHORITY OF AN UNCONTESTED
ORDER IN FPC DOCKET E - 7509.  THE COMMISSION IN THAT PROCEEDING
AUTHORIZED A TOTAL OF $80,000,000 IN SHORT-TERM DEBT.  ONLY $55,000,000
OF THIS WAS OUTSTANDING AT THE TIME OF GULF'S BOND AUTHORIZATION
PROCEEDING.  THUS, APART FROM THE BOND ISSUE, GULF COULD HAVE BORROWED
ANOTHER $25,000,000 IN SHORT-TERM CREDIT WITHOUT FURTHER COMMISSION
AUTHORIZATION.     /3/  "COMBINATIONS, AGREEMENTS, ARRANGEMENTS, OR
UNDERSTANDINGS, EXPRESS OR IMPLIED, TO LIMIT THE OUTPUT OF ELECTRICAL
ENERGY, TO RESTRAIN TRADE, OR TO FIX, MAINTAIN, OR INCREASE PRICES FOR
ELECTRICAL ENERGY OR SERVICE ARE HEREBY PROHIBITIED." 

/4/  CITIES ALSO OPPOSED AN APPLICATION OF LP&L FOR APPROVAL BY THE
SECURITIES AND EXCHANGE COMMISSION OF BOND AND STOCK ISSUES, THE
PROCEEDS OF WHICH WERE TO BE USED TO REPAY SHORT-TERM OBLIGATIONS AND
FOR OTHER CORPORATE PURPOSES.  CITIES CONTENDED THAT THE PROCEEDS OF
THESE ISSUES WOULD BE USED FOR THE CONSTRUCTION OF FACILITIES THAT
WOULD FURTHER THE UNLAWFUL OBJECTIVES OF LP&L, GULF, AND CLEC, AND
ASKED THAT APPROVAL BY THE SEC BE CONDITIONED ON CESSATION OF THE
ILLEGAL ACTIVITIES AND THE ESTABLISHMENT OF A PROGRAM TO REMEDY THE
DAMAGE ALREADY DONE. 

THE JURISDICTION OF THE SEC IN THIS INSTANCE WAS BASED ON ^^ 6 AND 7
OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 15 U.S.C. ^^ 79F AND
79G, WHICH ARE PART OF TIT. I OF THE PUBLIC UTILITY ACT OF 1935, 49
STAT. 803, 814 - 817.  SECTIONS 6 AND 7 CONTAIN A NUMBER OF
REQUIREMENTS THAT MUST BE MET FOR SEC APPROVAL OF A SECURITY ISSUE. 
THE MOST RELEVANT OF THESE IS IN ^ 7 (D), WHICH REQUIRES THAT THE SEC
"SHALL PERMIT A DECLARATION . . . TO BECOME EFFECTIVE UNLESS THE
COMMISSION FINDS THAT--. . . (6) THE TERMS AND CONDITIONS OF THE ISSUE
OR SALE OF THE SECURITY ARE DETRIMENTAL TO THE PUBLIC INTEREST OR THE
INTEREST OF INVESTORS OR CONSUMERS." 

THE SEC REFUSED TO ENTERTAIN THE CITIES' PROTEST, CONCLUDING THAT
ITS AUTHORITY UNDER ^ 7 (D) (6) RELATED SOLELY TO THE TERMS AND
CONDITIONS OF THE SECURITY TO BE ISSUED, AND DID NOT EXTEND TO
COLLATERAL AND UNRELATED CONTROVERSIES IN WHICH LP&L MIGHT BE ENGAGED. 
THE CITIES PETITIONED THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT FOR REVIEW OF THE SEC ORDERS, AND THE
MATTER WAS CONSOLIDATED WITH THE PRESENT CASE.  THE COURT OF APPEALS
AFFIRMED THE SEC ORDERS, BUT REMANDED GULF'S CASE TO THE FPC.  IT
EXPLAINED THIS DIVERSE TREATMENT AS FOLLOWS: 

"WHERE AN AGENCY HAS SOME REGULATORY JURISDICTION OVER OPERATIONS,
IT MUST CONSIDER WHETHER THERE IS A REASONABLE NEXUS BETWEEN THE
MATTERS SUBJECT TO ITS SURVEILLANCE AND THOSE UNDER ATTACK ON ANTI
COMPETITIVE GROUNDS.  BUT THE GENERAL DOCTRINE REQUIRING AN AGENCY TO
TAKE ACCOUNT OF ANTITRUST CONSIDERATIONS DOES NOT EXTEND TO A CASE LIKE
THE ONE BEFORE US WHERE THE ANTITRUST PROBLEM ARISES OUT OF OPERATIONS
OF THE REGULATED COMPANY (PAST AND PROJECTED) AND THE AGENCY, HERE THE
SEC, HAS NOT BEEN GIVEN ANY REGULATORY JURISDICTION OVER OPERATIONS OF
THE COMPANY.  THE SEC HAS NO JURISDICTION OVER OPERATIONS AND STANDS IN
A DIFFERENT POSTURE FROM THE FPC WHICH AS WE HAVE ALREADY NOTED, HAS
REGULATORY JURISDICTION OVER OPERATIONS IN VIEW OF ITS AUTHORITY, INTER
ALIA, TO DIRECT UTILITIES TO INTERCONNECT ON REASONABLE TERMS, OR TO
PROHIBIT A UTILITY FROM DISCRIMINATING IN RATES AND FACILITIES AGAINST
ITS MUNICIPAL CUSTOMERS" 147 U.S. APP. D.C. 98, 112 - 113, 454 F.2D
941, 955 - 956. 

/5/  THESE EXEMPTION PROVISIONS HAVE NO APPLICATION TO GULF'S
SECURITY ISSUE CHALLENGED BY THE CITIES HERE. 

/6/  CF., HOWEVER, BLACK HILLS POWER & LIGHT CO. 28 F.P.C. 1121
(1962), AND 31 F.P.C. 1605 (1964). 

/7/  "SEC.  206 (A).  NO PUBLIC UTILITY SHALL ISSUE ANY SECURITY, OR
ASSUME ANY OBLIGATION OR LIABILITY AS GUARANTOR, INDORSER, SURETY, OR
OTHERWISE IN RESPECT OF ANY SECURITY OF ANOTHER PERSON, UNLESS AND
UNTIL, AND THEN ONLY TO THE EXTENT THAT, UPON APPLICATION BY THE PUBLIC
UTILITY, THE COMMISSION BY ORDER AUTHORIZES SUCH ISSUE OR ASSUMPTION OF
LIABILITY.  THE COMMISSION SHALL MAKE SUCH ORDER ONLY IF IT FINDS THAT
SUCH ISSUE OR ASSUMPTION OF LIABILITY IS FOR ONE OR MORE OF THE
FOLLOWING PURPOSES AND NO OTHERS, AND IS REASONABLY NECESSARY OR
APPROPRIATE FOR SUCH PURPOSE OR PURPOSES; THE ACQUISITION OF PROPERTY;
THE CONSTRUCTION, COMPLETION, EXTENSION OR IMPROVEMENT OF THE
FACILITIES OR SERVICE OF THE PUBLIC UTILITY; THE DISCHARGE OR LAWFUL
REFUNDING OF ITS OBLIGATIONS; AND THE REIMBURSEMENT OF MONEYS ACTUALLY
EXPENDED FROM SOURCES OTHER THAN THE ISSUE OF SECURITIES FOR ANY OF THE
AFORESAID PURPOSES IN CASES WHERE THE APPLICANT SHALL HAVE KEPT ITS
ACCOUNTS AND VOUCHERS FOR SUCH EXPENDITURES IN SUCH MANNER AS TO ENABLE
THE COMMISSION TO ASCERTAIN THE AMOUNT OF MONEYS SO EXPENDED AND THE
PURPOSE FOR WHICH SUCH EXPENDITURE WAS MADE." 

THE FOREGOING WAS THE SENATE VERSION.  EXCEPT FOR ONE SPELLING AND
TWO PUNCTUATIONAL DIFFERENCES, THE HOUSE VERSION WAS IDENTICAL. 

/8/  THE FPC WAS SO RECOGNIZED.  PACIFIC POWER & LIGHT CO., 27
F.P.C. 623, 627 (1962). 

/9/  THE COURT OF APPEALS METICULOUSLY OUTLINED VARIOUS OPTIONS
AVAILABLE TO THE COMMISSION.  147 U.S. APP. D.C., AT 110 - 111, 454
F.2D, AT 953 - 954. 

[[DOP 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

THIS CASE RAISES THE QUESTION WHETHER THE FEDERAL POWER COMMISSION
(THE COMMISSION) MUST CONSIDER THE POSSIBLE ANTICOMPETITIVE EFFECT OF A
PUBLIC UTILITY'S APPLICATION UNDER ^ 204 OF THE FEDERAL POWER ACT, 16
U.S.C. ^ 824C, FOR AUTHORITY TO ISSUE A SECURITY.  SECTION 204 PROVIDES
IN RELEVANT PART THAT THE COMMISSION SHALL AUTHORIZE THE ISSUANCE OF A
SECURITY 

"ONLY IF IT FINDS THAT SUCH ISSUE OR ASSUMPTION (A) IS FOR SOME
LAWFUL OBJECT, WITHIN THE CORPORATE PURPOSES OF THE APPLICANT AND
COMPATIBLE WITH THE PUBLIC INTEREST, WHICH IS NECESSARY OR APPROPRIATE
FOR OR CONSISTENT WITH THE PROPER PERFORMANCE BY THE APPLICANT OF
SERVICE AS A PUBLIC UTILITY AND WHICH WILL NOT IMPAIR ITS ABILITY TO
PERFORM THAT SERVICE, AND (B) IS REASONABLY NECESSARY OR APPROPRIATE
FOR SUCH PURPOSES."  16 U.S.C. 824C (A). 

REJECTING THE COMMISSION'S OWN STRUCTURING OF ITS RESPONSIBILITIES
AND REPUDIATING ITS UNIFORM ADMINISTRATIVE INTERPRETATION FOR MORE THAN
A THIRD OF A CENTURY, THE COURT TODAY FINDS IMPLICIT IN ^ 204'S USE OF
THE PHRASE "THE PUBLIC INTEREST" A DUTY ON THE PART OF THE COMMISSION,
WHEN ACTING UPON A FINANCING APPLICATION, TO CONSIDER ANY POSSIBLE
ANTICOMPETITIVE EFFECT THAT MAY BE ALLEGED. 

[[HC765'(ORIGINAL DOCUMENT PAGE 765)'  AS I AM PERSUADED NEITHER BY
THE MAJORITY'S ANALYSIS OF THE STATUTORY LANGUAGE NOR BY ITS DISCUSSION
OF THE REGULATORY CONTEXT, I REMAIN OF THE VIEW THAT THE COMMISSION'S
POSITION IS CONSISTENT WITH THE STATUTE AND I WOULD ACCORD IT THE
DEFERENCE TO WHICH IT IS ENTITLED.  /1/  MOREOVER, FOR THE REASONS
STATED BELOW, I BELIEVE THAT THE COURT'S DECISION IS INCOMPATIBLE WITH
THE INTEREST OF THE PUBLIC IN ASSURING THAT UTILITIES ARE ENABLE TO
MEET THEIR NECESSARY REQUIREMENTS FOR CAPITAL UPON THE MOST FAVORABLE
TERMS.  ACCORDINGLY, I DISSENT. 

        I 

THE PRESENT PROCEEDINGS WERE INITIATED ON OCTOBER 12, 1970, WHEN
GULF STATES UTILITIES CO. (GULF STATES) FILED AN APPLICATION UNDER ^
204 SEEKING AUTHORITY TO SELL $30 MILLION OF FIRST MORTGAGE BONDS AT
COMPETITIVE BIDDING.  THE STATED PURPOSE FOR THE ISSUANCE WAS TO PAY
OFF PART OF ITS COMMERCIAL PAPER AND SHORT-TERM NOTES, WHOSE ISSUANCE
PREVIOUSLY HAD BEEN APPROVED BY THE COMMISSION. 

THE CITIES OF LAFAYETTE AND PLAQUEMINE, LOUISIANA (THE CITIES),
FILED A MOTION TO INTERVENE ON NOVEMBER 2, ALLEGING A CONTINUING
CONSPIRACY AMONG GULF STATES, LOUISIANA POWER & LIGHT CO., AND CENTRAL
LOUISIANA ELECTRIC CO. TO BLOCK THE IMPLEMENTATION OF AN
INTERCONNECTION AND POOLING AGREEMENT WHICH WOULD LINK THE CITIES, DOW
CHEMICAL CO., AND LOUISIANA ELECTRIC COOPERATIVE, INC. (THE
COOPERATIVE). 

[[HC766'(ORIGINAL DOCUMENT PAGE 766)'  THE COOPERATIVE HAD APPLIED
IN 1964 TO THE RURAL ELECTRIFICATION ADMINISTRATION FOR A LOAN TO BUILD
A GENERATING FACILITY AND TRANSMISSION LINES.  THE CITIES CONTENDED
THAT GULF STATES AND ITS COCONSPIRATORS HAD USED A NUMBER OF
TECHNIQUES, INCLUDING FRIVOLOUS LITIGATION, TO DELAY APPROVAL OF THE
LOAN UNTIL 1969, WITH THE RESULT THAT THE AMOUNT OF THE LOAN NO LONGER
SUFFICED TO BUILD TRANSMISSION LINES AS WELL AS A GENERATING PLANT. 
THE COOPERATIVE WAS THUS FORCED TO RELY FOR TRANSMISSION SERVICES ON
GULF STATES, WHICH, ALLEGEDLY, WOULD AGREE TO SELL THEM ONLY IF THE
COOPERATIVE WOULD RESTRICT THE SCOPE OF ITS OPERATIONS.  THE CITIES
ASSERTED, FINALLY THAT THE PROCEEDS FROM THE PRESENT BOND ISSUE WOULD
IN SOME WAY SUPPORT GULF STATE'S ANTICOMPETITIVE ACTIONS.  /2/ 

ON DECEMBER 3, THE COMMISSION GRANTED THE CITIES' MOTION TO
INTERVENE, BUT DECLINED TO HOLD A HEARING ON THEIR ALLEGATIONS.  THE
COMMISSION'S ORDER EXPLAINED MORE FULLY: 

     "THE REQUESTED APPROVAL OF THE ISSUANCE OF THE BONDS ALLOWS)

  THE COMPANY ONLY TO CHANGE THE FORM OF A PORTION OF ITS

  OUTSTANDING INDEBTEDNESS, IT DOES NOT CALL FOR THE INITIATION OF

  ANY CONSTRUCTION OR OTHER PROGRAM BY THE COMPANY WHICH MIGHT

  AFFECT THE INTEREST OF THE PETITIONERS.  THE ALLEGED VIOLATIONS

WHICH PETITIONERS ATTEMPT TO RAISE IN THIS PROCEEDING ARE

IRRELEVANT TO A REQUESTED AUTHORIZATION OF SECURITIES.  THERE IS

  NO RELIEF THAT THE COMMISSION CAN ORDER IN AUTHORIZING THE

  ISSUANCE OF THE BONDS FOR REFINANCING PURPOSES THAT WOULD HAVE

  ANY EFFECT ON THE INTEREST OF THE PETITIONERS, OR SOLVE ANY OF

  THE PROBLEMS OUTLINED BY THEM."  44 F.P.C. 1524, 1525. 

[[HC767'(ORIGINAL DOCUMENT PAGE 767)' 

IN THE SAME ORDER, THE COMMISSION AUTHORIZED THE ISSUANCE AND SALE
OF THE BONDS.  IT SUBSEQUENTLY MODIFIED THE ORDER IN RESPECTS NOT
RELEVANT HERE AND DENIED A PETITION FOR REHEARING. 

REVIEWING THE COMMISSION'S ORDER AT THE BEHEST OF THE CITIES, THE
COURT OF APPEALS HELD THAT IN A ^ 204 APPLICATION PROCEEDING THE
COMMISSION MUST CONSIDER CLAIMS OF ANTICOMPETITIVE CONDUCT WHEN URGED
BY INTERVENORS.  147 U.S. APP. D.C. 98, 454 F.2D 941 (1971).  WHILE THE
COURT'S RULING WAS FLEXIBLE IN TERMS, ALLOWING THE COMMISSION TO REJECT
WITHOUT A HEARING CLAIMS WHICH ARE "INSUBSTANTIAL OR BARREN" OR LACK A
"REASONABLE NEXUS" WITH THE PURPOSE OF THE SECURITIES ISSUANCE, IT
REQUIRED AN EXPLANATION "SUPPORTED IN THE RECORD," PRESUMABLY SOMETHING
IN ADDITION TO THAT OFFERED BY THE COMMISSION IN THIS CASE.  147 U.S.
APP. D.C., AT 110, 454 F.2D, AT 953.  /3/

        II 

IT IS COMMON GROUND THAT THE COMMISSION HAS A RESPONSIBILITY TO DEAL
WITH ANTICOMPETITIVE PRACTICES IN THE POWER INDUSTRY.  SECTION 10 OF
THE ACT, 16 U.S.C. ^ 803, PROVIDES THAT THE COMMISSION MAY ISSUE
LICENSES TO PUBLIC UTILITIES "ON THE FOLLOWING CONDITIONS," ONE OF
WHICH IS THAT: 

     "(H) COMBINATIONS, AGREEMENTS, ARRANGEMENTS, OR
UNDERSTANDINGS,

  EXPRESS OR IMPLIED, TO LIMIT THE OUTPUT OF ELECTRICAL ENERGY, TO

  RESTRAIN TRADE, OR TO FIX, MAINTAIN, OR INCREASE PRICES FOR

ELECTRICAL ENERGY OR SERVICE ARE HEREBY PROHIBITED."  16 U.S.C. ^

  803 (H). 

[[HC768'(ORIGINAL DOCUMENT PAGE 768)' 

THE QUESTION BEFORE THE COURT, THEN, IS NOT WHETHER THE COMMISSION
HAS RESPONSIBILITY, BUT HOW AND WHEN IT SHALL EXERCISE IT. 

STATED ABSTRACTLY, THE COMMISSION'S POSITION IS THAT THE MOST
SENSIBLE METHOD OF REGULATING ANTICOMPETITIVE CONDUCT IS TO FOCUS ON
THE CONDUCT ITSELF RATHER THAN ON THE MEANS BY WHICH IT MAY POSSIBLY BE
FINANCED.  THE COMMISSION ACKNOWLEDGES A DUTY TO SCRUTINIZE ALLEGEDLY
ANTICOMPETITIVE BEHAVIOR IN PROCEEDINGS:  TO ORDER AN INTERCONNECTION,
^ 202 OF THE ACT, 16 U.S.C. ^ 824A; TO APPROVE AN ACQUISITION OR
MERGER, ^ 203 OF THE ACT, 16 U.S.C. ^ 824B; TO REVIEW RATES, ^^ 205 AND
206 OF THE ACT, 16 U.S.C. ^^ 824D AND 824E; AND TO REVIEW A CHARGE OF
UNDULY DISCRIMINATORY RATES OR PRACTICES, 205 OF THE ACT, 16 U.S.C.
824D, OR OF INADEQUATE SERVICE, 207 OF THE ACT, 16 U.S.C. ^ 824F. 
ADDITIONALLY, THE COMMISSION MAY INVESTIGATE UNLAWFUL CONDUCT UPON A
COMPLAINT BY "(ANY PERSON, STATE, MUNICIPALITY, OR STATE COMMISSION," ^
306 OF THE ACT, 16 U.S.C. ^ 825E, OR ON ITS OWN MOTION, ^ 307 OF THE
ACT, 16 U.S.C. ^ 825F.  INDEED, UPON THE COMPLAINT OF THE RESPONDENT
CITIES, THE COMMISSION IS PRESENTLY INVESTIGATING THE CONDUCT AT ISSUE
HERE.  THE CITIES OF LAFAYETTE AND PLAQUEMINE, LOUISIANA VA. GULF
STATES UTILITIES CO., F.P.C. DOC. NO. E - 7676.  /4/ 

GIVEN ITS BROAD DIRECT AUTHORITY AND ITS UNDERTAKING TO INVESTIGATE
ALLEGATIONS OF ANTICOMPETITIVE BEHAVIOR IN EXERCISING THAT AUTHORITY,
THE COMMISSION DOES NOT THINK IT NECESSARY OR APPROPRIATE TO CONVERT ^
204 INTO AN ALL-PURPOSE SWORD.  /5/ 

[[HC769'(ORIGINAL DOCUMENT PAGE 769)'  AS THE COURT OF APPEALS
RECOGNIZED, THERE MAY BE NO NEXUS OR ONLY A VERY WEAK ONE BETWEEN THE
ISSUANCE OF A SECURITY AND ALLEGED ANTICOMPETITIVE CONDUCT AND, IN ANY
EVENT, THE CHARGES MAY BE UNFOUNDED.  IT IS NO ANSWER, IN THE
COMMISSION'S VIEW, TO SAY THAT NEXUS AND MERIT MUST BE DETERMINED ON
THE FACTS OF EACH CASE BECAUSE THE PROCESS OF INVESTIGATING THE
ALLEGATIONS WILL DELAY THE FINANCING AND OFTEN FRUSTRATE THE UTILITIES'
EFFORTS TO OBTAIN A FAVORABLE PRICE FOR THEIR SECURITIES. 

THE COMMISSION IS PROPERLY SENSITIVE TO THE COMPLEXITIES AND
SUBTLETIES OF RAISING VAST SUMS OF MONEY IN THE FINANCIAL MARKETS.  /6/
UTILITY FINANCING NORMALLY IS ACCOMPLISHED THROUGH COMPETITIVE BIDDING
PARTICIPATED IN BY A RELATIVELY SMALL NUMBER OF NATIONAL INVESTMENT
FIRMS WHICH SPECIALIZE IN THE PURCHASE FROM ISSUERS AND THE WHOLESALING
OF UTILITY SECURITIES.  THE MARKET IS HIGHLY COMPETITIVE AND IS
PARTICULARLY SENSITIVE TO UNCERTAINTIES.  THE MAINTENANCE OF AN ORDERLY
MARKET, WITH DEPENDABLE MARKETING TIMETABLES, IS ESSENTIAL TO THE
FINANCING PROCESS AND TO FAVORABLE DECISIONS BY THE INVESTMENT BANKERS
AS TO RATES AND OTHER TERMS.  IT IS SETTLED PRACTICE TO "BRING AN ISSUE
TO MARKET" PURSUANT TO A CAREFULLY STRUCTURED TIME SCHEDULE. 

[[HC770'(ORIGINAL DOCUMENT PAGE 770)'  WHEN FAVORABLE MARKET
CONDITIONS ARE OBSERVED OR ANTICIPATED, THIS TIME SCHEDULE IS
COMPRESSED USUALLY WITHIN A PERIOD FROM 45 TO 90 DAYS.  THE LONGER THE
LEAD TIME IS EXTENDED AND UNCERTAINTIES INJECTED INTO THE PROCESS, THE
GREATER THE RISK OF MARKET CHANGE OR RE-EVALUATION WITH A RESULTING
ADVERSE EFFECT ON THE COST OF CAPITAL AND, IN THE END, ON THE COST OF
SERVICE TO THE PUBLIC.  INDEED, THE PUBLIC HAS A DOUBLE INTEREST IN
THIS PROCESS.  APART FROM THE ULTIMATE IMPACT ON RATES WHICH MAY BE
OCCASIONED BY DISRUPTION OF THE FINANCING PROCESS, THE UTILITIES MAY
SIMPLY BE UNABLE TO KEEP PACE WITH THE BURGEONING PUBLIC DEMAND FOR
ELECTRIC ENERGY.  /7/     BOTH THE DELICACY OF FINANCING AND THE
AVAILABILITY OF ALTERNATIVE MEANS FOR REGULATING ANTICOMPETITIVE
CONDUCT, THEN, STRONGLY SUPPORT THE COMMISSION'S INTERPRETATION OF THE
ACT.  NOR DOES ANYTHING IN THE LEGISLATIVE HISTORY OF ^ 204 REQUIRE A
CONTRARY CONCLUSION.  /8/     [[HC771'(ORIGINAL DOCUMENT PAGE 771)'
THE SENATE REPORT STATES STRAIGHTFORWARDLY: 

     "CONTROL OVER THE CAPITALIZATION OF OPERATING UTILITIES IS

  PLAINLY AN ESSENTIAL MEANS OF SAFEGUARDING THE PUBLIC AGAINST THE

  UNSOUND FINANCIAL PRACTICES WHICH MAKE IMPOSSIBLE THE PROPER AND

  MOST ECONOMICAL PERFORMANCE OF PUBLIC-UTILITY FUNCTIONS."  S.

  REP. NO. 621, 74TH CONG., 1ST SESS., 50 (1935). 

AND IN COMPANION LEGISLATION ENTRUSTING TO THE SECURITIES AND
EXCHANGE COMMISSION (SEC) THE RESPONSIBILITY TO REGULATE THE ISSUANCE
OF SECURITIES BY PUBLIC UTILITY HOLDING COMPANIES, CONGRESS DECLINED TO
REQUIRE THE SEC TO INVESTIGATE ANTICOMPETITIVE CONDUCT, AT LEAST IN THE
ORDINARY CASE.  /9/  EVEN APART FROM ITS RELEVANCE TO CONGRESSIONAL
PURPOSE, THE ABSENCE OF A REQUIREMENT FOR SUCH AN INVESTIGATION WHEN A
PUBLIC UTILITY HOLDING COMPANY SEEKS AUTHORIZATION TO ISSUE A SECURITY
SUPPORTS THE COMMISSION'S PRUDENT JUDGMENT TO ACCORD LIKE TREATMENT TO
APPLICATIONS FROM OPERATING UTILITIES. 

[[HC772'(ORIGINAL DOCUMENT PAGE 772)' 

THE SECURITIES OF PUBLIC UTILITY HOLDING COMPANIES COMPETE IN THE
FINANCIAL MARKETS WITH THE SECURITIES OF PUBLIC UTILITY OPERATING
COMPANIES.  IT MAKES LITTLE SENSE, ESPECIALLY IN CONSTRUING COMPANION
LEGISLATION APPLICABLE TO THE SAME INDUSTRY, TO CONSTRUE THE TERM
"PUBLIC INTEREST" WHEN APPLIED TO THE OPERATING COMPANIES TO MEAN
SOMETHING DIFFERENT, AND TO IMPOSE A MORE BURDENSOME PROCEDURE, THAN
WHEN APPLIED TO UTILITIES WHICH ARE WITHIN A HOLDING COMPANY SYSTEM. 
/10/  YET, THIS WILL BE THE BIZARRE RESULT OF TODAY'S DECISION BY THIS
COURT. 

        III 

THE COURT RESTS ITS DECISION IN PART ON DENVER & R.G.W.R. CO. V.
UNITED STATES, 387 U.S. 485 (1967), A CASE INVOLVING THE ISSUANCE OF A
CONTROLLING STOCK INTEREST IN A CARRIER REGULATED BY THE INTERSTATE
COMMERCE COMMISSION (ICC).  IN MY VIEW, THAT CASE FALLS FAR SHORT OF
BEING A PERSUASIVE PRECEDENT.  THE TRANSACTION UNDER CONSIDERATION
THERE WAS A PROPOSED ISSUANCE OF COMMON STOCK BY THE RAILWAY EXPRESS
AGENCY (REA).  APPROXIMATELY 2,000,000 SHARES REA STOCK WERE HELD
EXCLUSIVELY BY RAILRAODS, EACH OF WHICH WAS OBLIGATED TO OFFER ITS
SHARES TO THE OTHERS BEFORE SELLING THEM TO OUTSIDERS.  REA ALSO WAS
AUTHORIZED TO ISSUE 500,000 SHARES TO WHOMEVER IT WISHED, AND IT
ENTERED INTO AN AGREEMENT TO SELL SUCH SHARES TO GREYHOUND ON THE
CONDITION THAT GREYHOUND WOULD OFFER TO PURCHASE AN ADDITIONAL
1,000,000 SHARES FROM PRESENT STOCKHOLDERS, THE OFFER TO REMAIN OPEN
FOR 60 DAYS. 

[[HC773'(ORIGINAL DOCUMENT PAGE 773)' 

AS REQUIRED BY ^ 20A OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. ^
20A, REA APPLIED TO THE ICC FOR AUTHORIZATION TO ISSUE THE 500,000
SHARES.  UNDER THE TERMS OF THAT SECTION, THE ICC MAY GRANT
AUTHORIZATION "ONLY IF IT FINDS THAT SUCH ISSUE . . . IS FOR SOME
LAWFUL OBJECT WITHIN (THE APPLICANT'S) CORPORATE PURPOSES, AND
COMPATIBLE WITH THE PUBLIC INTEREST.  . ."  49 U.S.C. ^ 20A (2).  THE
ICC AUTHORIZED THE ISSUE WITHOUT GRANTING A HEARING ON AN INTERVENOR'S
CLAIM THAT ISSUANCE TO GREYHOUND WOULD GIVE IT "CONTROL"  OVER REA, OR,
AT A MINIMUM, WOULD LEAD TO A LESSENING OF COMPETITION IN THE FREIGHT
TRANSPORTATION MARKET.  ON REVIEW IN THIS COURT, THE ICC ARGUED THAT
ITS RESPONSIBILITY UNDER ^ 20A WAS LIMITED TO PROTECTING AGAINST
FINANCIAL MANIPULATION, BUT THAT EVEN IF IT DID HAVE AN OBLIGATION TO
CONSIDER "CONTROL" AND "ANTICOMPETITIVE"  EFFECTS OF THE ISSUANCE, IT
COULD PROPERLY DEFER SUCH CONSIDERATION UNTIL THE EXPIRATION OF
GREYHOUND'S OFFER TO PURCHASE A LARGE ADDITIONAL PORTION OF REA'S
OUTSTANDING STOCK.  387 U.S., AT 491 - 492. 

IN ADDRESSING THE ICC'S FIRST CONTENTION, THE COURT GAVE SCANT
ATTENTION TO THE LEGISLATIVE HISTORY OF ^ 20A.  AFTER NOTING THAT AN
EARLIER VERSION OF WHAT WAS TO BECOME THE INTERSTATE COMMERCE ACT "LED
TO A STUDY WHICH CONDEMNED AS A 'PUBLIC EVIL'  INTERCORPORATE HOLDINGS
OF RAILROAD STOCK," ID., AT 492, N.4, THE OPINION SHIFTED FOCUS: 

"EVEN IF CONGRESS' PRIMARY CONCERN WAS TO PREVENT (FISCAL)
MANIPULATION, THE BROAD TERMS 'PUBLIC INTEREST" AND 'LAWFUL OBJECT'
NEGATE THE EXISTENCE OF A MANDATE TO THE ICC TO CLOSE ITS EYES TO FACTS
INDICATING THAT THE TRANSACTION MAY EXCEED LIMITATIONS IMPOSED BY OTHER
RELEVANT LAWS."  ID., AT 492. 

ONE OF THE ICC'S RESPONSIBILITIES, THE COURT FOUND, WAS TO CONSIDER
POSSIBLE CONTROL AND ANTICOMPETITIVE CONSEQUENCES, A RESPONSIBILITY
DERIVING SPECIFICALLY FROM ^ 5 OF THE INTERSTATE COMMERCE ACT, 49
U.S.C. ^ 5, AND FROM ^ 11 OF THE CLAYTON ACT, 15 U.S.C. ^ 21. 

[[HC774'(ORIGINAL DOCUMENT PAGE 774)'  UNDER ^ 5, ANY CONJOINING OF
TWO OR MORE CARRIERS, EITHER BY MERGER OR BY TRANSFER OF A CONTROLLING
INTEREST OF STOCK, MUST BE SUBMITTED FOR APPROVAL TO THE ICC, WHOSE
APPROVAL CONFERS ANTITRUST IMMUNITY.  SECTION 11 OF THE CLAYTON ACT
GRANTS TO THE ICC AUTHORITY TO ENFORCE COMPLIANCE WITH THE ANTITRUST
PROVISIONS OF ^ 7 OF THE SAME ACT, 15 U.S.C. ^ 18, WHICH PROHIBIT THE
ACQUISITION BY ONE CORPORATION OF THE STOCK OF THE ASSETS OF ANOTHER
WHERE "THE EFFECT OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION, OR TO TEND TO CREATE A MONOPOLY."  ON THE FACTS BEFORE IT,
THE COURT SAW NO ABUSE OF DISCRETION IN THE ICC'S DECISION TO POSTPONE
CONSIDERATION OF POSSIBLE CONTROL OF REA BY GREYHOUND UNTIL THE
EXPIRATION OF GREYHOUND'S 60-DAY OFFER, BUT HELD IT AN ABUSE OF
DISCRETION TO DEFER CONSIDERATION OF A POSSIBLE ^ 7 VIOLATION. 

WAS, AS THE MAJORITY POINTS OUT, THE MODEL FOR ^ 204 OF THE FEDERAL
POWER ACT.  /11/  BUT THIS TIE BY NO MEANS REQUIRES THAT THE TWO
INVOLVED A DIFFERENT STATUTE AND REGULATORY FRAMEWORK, WITH DIFFERENT
ADMINISTRATIVE HISTORY.  /13/ 

[[HC775'(ORIGINAL DOCUMENT PAGE 775)'  MOREOVER, THE TRANSACTION
INVOLVED IN DENVER, GREYHOUND'S PURCHASE OF STOCK IN A REGULATED
CARRIER, WAS ARGUABLY A PER SE VIOLATION OF THE ANTITRUST LAWS:  THE
EFFECT OF THE ACQUISITION MIGHT HAVE BEEN "SUBSTANTIALLY TO LESSEN
COMPETITION, OR TO TEND TO CREATE A MONOPOLY" IN VIOLATION OF ^ 7 OF
THE CLAYTON ACT.  AS INDICATED ABOVE, THE LEGISLATIVE HISTORY OF THE
INTERSTATE COMMERCE ACT SHOWED PARTICULAR CONCERN WITH "INTERCORPORATE
HOLDINGS OF RAILROAD STOCK."  THE IMMEDIACY OF THE ANTITRUST ISSUE AND
THE OBLIGATION IMPOSED BY ^ 5 ON THE ICC WITH RESPECT TO CLAYTON ACT
VIOLATIONS JUSTIFIED THE COURT IN OVERRIDING THE ICC'S DECISION NOT TO
ADDRESS THE ISSUE. 

IN SUM, DENVER HAS LITTLE PRECEDENTIAL WEIGHT IN A CASE UNDER THE
FEDERAL POWER ACT, ESPECIALLY WHERE THE TRANSACTION DOES NOT INVOLVE ON
ITS FACE AN ARGUABLE VIOLATION OF THE ANTITRUST LAWS. 

        IV 

I RETURN NOW TO THE FACTS IN THIS CASE.  THE RELATIONSHIP BETWEEN
GULF STATES' PROPOSAL TO SELL BONDS FOR CASH ON THE OPEN MARKET AND THE
ANTICOMPETITIVE ACTIVITIES ALLEGED BY THE CITIES IS, AT BEST, AN
ATTENUATED ONE.  INDEED, THE CITIES DO NOT CLAIM THAT THE ISSUANCE
ITSELF WILL HAVE AN ANTICOMPETITIVE EFFECT. 

[[HC776'(ORIGINAL DOCUMENT PAGE 776)'  NOR DO THEY CLAIM THAT THE
SIMPLE REFUNDING OF OBLIGATIONS WILL HAVE SUCH AN EFFECT.  THEIR
ASSERTION OF A RELATIONSHIP BARELY GOES BEYOND A BALD INSISTENCE THAT
THE ANTICOMPETITIVE CONDUCT ALLEGED WILL BE "FINANCED OR REFINANCED BY
THE BONDS HERE PROPOSED."  BRIEF FOR RESPONDENT CITIES 9.  THEIR FOCUS
CONSISTENTLY HAS BEEN NOT SO MUCH ON THE USES TO WHICH THE PROCEEDS
FROM THE BONDS WILL BE PUT AS ON THE CONDITIONS WHICH THE COMMISSION
MIGHT IMPOSE ON THEIR ISSUANCE.  INDEED, THE COMMISSION BELIEVES THAT
THE LACK OF A SUBSTANTIAL RELATIONSHIP BETWEEN THE CITIES' ALLEGATIONS
AND PETITIONER'S BOND ISSUE IS CHARACTERISTIC OF THE LACK OF NEXUS
BETWEEN ^ 204 FINANCING PROPOSALS GENERALLY AND ANTICOMPETITIVE CONDUCT
BY UTILITIES.  /14/ 

THIS, THEN, IS A PARTICULARLY UNLIKELY CASE IN WHICH TO FORCE THE
COMMISSION TO INVESTIGATE ALLEGATIONS OF ANTICOMPETITIVE CONDUCT.  THE
COURT APPARENTLY CONSIDERS THAT THE CITIES' CLAIM OF ANTICOMPETITIVE
CONDUCT IS AT LEAST COLORABLY RELEVANT TO THE PROPOSED REFINANCING.  IF
SO, IT IS UNLIKELY THAT ANY CLAIM CAN BE FOUND WHOLLY IRRELEVANT.  ON
THE BASIS OF TODAY'S PRECEDENT, THE ONLY JUSTIFICATION REASONABLY OPEN
TO THE COMMISSION FOR REFUSING TO CONSIDER ALLEGATIONS OF
ANTICOMPETITIVE CONDUCT WILL BE THAT THE ALLEGATIONS THEMSELVES ARE
PATENTLY FALSE. 

IF THE FIELD OF INQUIRY IS, AS THE CITIES INSIST, ALL OF A UTILITY'S
PROPOSED ACTIONS AND ALL OF ITS PAST ACTIONS AS THEY REFLECT ON ITS
PROPOSED ACTIONS, IT SHOULD BE NO DIFFICULT TASK FOR AN INTERVENOR TO
FORCE A HEARING AND FINDINGS OF FACT. 

[[HC777'(ORIGINAL DOCUMENT PAGE 777)'  AS THE PRESENT CASE AMPLY
DEMONSTRATES, THE QUESTIONS OF FACT MAY BE COMPLICATED ONES UNSUITED TO
SUMMARY ADJUDICATION.  IF THE COMMISSION FINDS NO ANTICOMPETITIVE
CONDUCT, THE INTERVENOR WILL REMAIN FREE TO SEEK JUDICIAL REVIEW OF THE
COMMISSION'S FINDINGS, AND THEREBY CAUSE FURTHER DELAY. 

IN CONVERTING A SPECIAL-PURPOSE PROCEEDING INTO A GENERAL-PURPOSE
ONE, THE COURT RENOUNCES AN ADMINISTRATIVE INTERPRETATION OF ^ 204
FOUNDED ON THE PRACTICALITIES OF UTILITY FINANCING AND REGULATION. 
/15/  ALTHOUGH OTHER ESTABLISHED MEANS ARE AVAILABLE FOR POLICING
ANTICOMPETITIVE CONDUCT, /16/  THE COURT IMPOSES FRESH AND ILL-DEFINED
OBSTACLES TO THE NECESSARY RAISING OF CAPITAL BY AN INDUSTRY THAT NEED
AN EXPEDITIOUS AND DEPENDABLE REGULATORY PROCESS.  AND, FINALLY, IN THE
NAME OF THE "PUBLIC INTEREST," IT IGNORES THE CRITICAL FACT THAT
MANDATING A PROLONGED FACTFINDING PROCESS WILL PRECLUDE THE COMMISSION
FROM VINDICATING THOSE ASPECTS OF THE PUBLIC INTEREST PECULIARLY
IMPLICATED BY FINANCING PROPOSALS. 

I WOULD UPHOLD THE COMMISSION AND WOULD REVERSE THE DECISION OF THE
COURT OF APPEALS. 

[[DFN 

/1/  THE INTERPRETATION IS ENTITLED TO GREAT DEFERENCE: 

"WHEN FACED WITH A PROBLEM OF STATUTORY CONSTRUCTION, THIS COURT
SHOWS GREAT DEFERENCE TO THE INTERPRETATION GIVEN THE STATUTE BY THE
OFFICERS OR AGENCY CHARGED WITH ITS ADMINISTRATION.  "TO SUSTAIN THE
COMMISSION'S APPLICATION OF THIS STATUTORY TERM, WE NEED NOT FIND THAT
ITS CONSTRUCTION IS THE ONLY REASONABLE ONE, OR EVEN THAT IT IS THE
RESULT WE WOULD HAVE REACHED HAD THE QUESTION ARISEN IN THE FIRST
INSTANCE IN JUDICIAL PROCEEDINGS.'  UNEMPLOYMENT COMM'N V. ARAGON, 329
U.S. 143, 153."  UDALL V. TALLMAN, 380 U.S. 1, 16 (1965). 

/2/  IT WAS STATED IN PETITIONER'S BRIEF, AND WAS NOT CHALLENGED,
THAT THE COMMISSION RECORDS FAIL TO SHOW ANY OTHER LIKE PETITION TO
INTERVENE IN A FINANCING APPLICATION UNDER ^ 204 SINCE ITS ENACTMENT IN
1935.  THE REMEDY WHICH INTERVENORS ARE SEEKING TO ESTABLISH IS A NEW
ONE NOT HERETOFORE DEEMED NECESSARY OR APPROPRIATE BY ANYONE.  BRIEF
FOR PETITIONER 26. 

/3/  ONE WOULD HAVE THOUGHT THAT BY ITS USE OF THE PHRASE
"IRRELEVANT TO A REQUESTED AUTHORIZATION OF SECURITIES,"  44 F.P.C.
1524, 1525, THE COMMISSION HAD ALREADY FOUND--TO USE THE LANGUAGE OF
THE COURT--THAT THE CLAIMS LACKED A "REASONABLE NEXUS"  WITH THE
PURPOSE OF THE SECURITIES ISSUANCE. 

/4/  NOR DOES THE COMMISSION HAVE EXCLUSIVE JURISDICTION OVER
ANTITRUST VIOLATIONS BY UTILITIES.  ANTITRUST SUITS MAY BE BROUGHT BY
PRIVATE PARTIES OR BY THE ANTITRUST DIVISION OF THE JUSTICE DEPARTMENT
AND AFFORD OTHER MEANS OF RELIEF. 

/5/  IN PACIFIC POWER & LIGHT CO., 27 F.P.C. 623 (1962), THE
COMMISSION TOOK THE SAME POSITION UNDER ANALOGOUS CIRCUMSTANCES. 
THERE, THE COMMISSION APPROVED A PROPOSED ISSUANCE OF SECURITIES TO
FUND CONSTRUCTION OF A POLITICALLY CONTROVERSIAL TRANSMISSION LINE,
STATING: 

"THE PLAIN PURPOSE OF SECTION 204 IS TO PREVENT THE ISSUANCE OF
SECURITIES WHICH MIGHT IMPAIR THE COMPANY'S FINANCIAL INTEGRITY OR ITS
ABILITY TO PERFORM ITS PUBLIC UTILITY RESPONSIBILITIES."  ID., AT 626. 

/6/  THE COMMISSION HAS RECOGNIZED THE IMPORTANCE OF EXPEDITION AND
ADHERENCE TO TIME SCHEDULES IN THE ADMINISTRATION OF ^ 204 OF THE ACT: 

"IT SHOULD ALSO BE OBSERVED THAT PROCEDURES FOR CONSIDERING SECURITY
ISSUES MUST BE EXPEDITIOUS IF, IN VIEW OF CHANGING MARKETING
CONDITIONS, UTILITIES ARE TO BE ABLE TO RAISE THE MONEY NEEDED TO CARRY
OUT THEIR RESPONSIBILITIES.  . . ."  ID., AT 629. 

/7/  PROF. PRIEST HAS COMMENTED ON THE URGENCY OF NEW CAPITAL FOR
THE ELECTRIC INDUSTRY: 

"SINCE WORLD WAR II, THE PROBLEM OF NEW CAPITAL HAS BEEN AND WILL
CONTINUE TO BE, COMPELLINGLY URGENT FOR PUBLIC UTILITY MANAGEMENTS." 
A. PRIEST, 1 PRINCIPLES OF PUBLIC UTILITY REGULATION 451 (1969). 

AFTER DESCRIBING THE "SPECTACULAR" GROWTH OF THE ELECTRIC UTILITY
INDUSTRY, PROF. PRIEST COMPARED THE URGENCY OF ACCESS TO THE CAPITAL
MARKETS OF UTILITIES WITH INDUSTRIAL ENTERPRISES: 

"(THE NEW CAPITAL REQUIREMENTS OF THE UTILITY INDUSTRY IN THE NEXT
TEN YEARS WILL CALL FOR EXTRAORDINARY EFFORT.  THE OBVIOUS REASONS ARE
(1) THAT REGULATED PUBLIC UTILITIES LITERALLY CANNOT PRODUCE AS MUCH
CASH THROUGH RETAINED EARNINGS AS UNREGULATED INDUSTRIAL ENTERPRISES
AND (2) THAT THE UTILITIES, IN ANY EVENT, NEED A MUCH LARGER INVESTMENT
PER DOLLAR OF ANNUAL REVENUE THAN THE CHARACTERISTIC INDUSTRIAL."  ID.,
AT 452.     IT IS STATED IN PETITIONER'S BRIEF, AND NOT QUESTIONED THAT
IN 1971, 43 APPLICATIONS WERE FILED WITH THE COMMISSION COVERING THE
ISSUANCE OF NEARLY $1.8 BILLION OF SECURITIES.  BRIEF FOR PETITIONER
24. 

/8/  SECTION 204 WAS ENACTED AS PART OF TIT. II OF THE PUBLIC
UTILITY ACT OF 1935.  TITLE II AMENDED THE FEDERAL WATER POWER ACT AND
REDESIGNATED IT THE FEDERAL POWER ACT. 

/9/  THE PUBLIC UTILITY HOLDING COMPANY ACT, THE SEC IS DIRECTED TO
DISAPPROVE AN ISSUE OF SECURITIES IF ITS TERMS AND CONDITIONS ARE
"DETRIMENTAL TO THE PUBLIC INTEREST OR THE INTEREST OF INVESTORS OR
CONSUMERS."  15 U.S.C. ^ 79G (D) (6).  THE SEC HAS INTERPRETED THIS
LANGUAGE AS NOT REQUIRING IT TO INVESTIGATE ALLEGED ANTICOMPETITIVE
CONDUCT, AND APPLIED THIS INTERPRETATION IN AN ASPECT OF THIS
LITIGATION INVOLVING A SUBSTANTIALLY IDENTICAL CHALLENGE BY THESE SAME
CITIES TO A PROPOSED ISSUANCE OF SECURITIES BY LOUISIANA POWER & LIGHT
CO., A PUBLIC UTILITY HOLDING COMPANY WHICH ALLEGEDLY CONSPIRED WITH
GULF STATES.  SEE ANTE, AT 754 - 755, N.4.  THE SEC REJECTED THE
CITIES' PROTESTS AS PERTAINING TO "COLLATERAL AND UNRELATED
CONTROVERSIES," 147 U.S. APP. D.C., AT 103, 454 F.2D, AT 946, AND WAS
UPHELD BY THE COURT OF APPEALS.  ID., AT 112, 454 F.2D, AT 955. 

/10/  FURTHER EVIDENCE OF CONGRESSIONAL INTENT CAN BE GLEANED FROM
THE FACT THAT CONGRESS EXEMPTED FROM SCRUTINY UNDER ^ 204 SECURITIES OF
"A PUBLIC UTILITY ORGANIZED AND OPERATING IN A STATE UNDER THE LAWS OF
WHICH ITS SECURITY ISSUES ARE REGULATED BY A STATE COMMISSION."  ^ 204
(F) OF THE ACT, 16 U.S.C. ^ 824C (F).  AT THE TIME OF THE ACT, 32
STATES REGULATED THE ISSUANCE OF UTILITY COMPANY SECURITIES.  79 CONG.
REC. 10378 (1935).  HAD CONGRESS INTENDED TO SUBJECT SECURITIES ISSUES
TO ANTITRUST SCREENING, IT WOULD NOT, PRESUMABLY, HAVE ESTABLISHED THIS
EXCEPTION. 

/11/  THE SENATE REPORT INDICATED THAT ^ 204 

"FOLLOWS SECTION 20A OF THE INTERSTATE COMMERCE ACT IN DEFINING THE
CONDITIONS UNDER WHICH SUCH AUTHORIZATION IS TO BE GIVEN, THE
COMMISSION'S POWER TO ISSUE ORDERS AND THE DUTY OF THE PUBLIC UTILITIES
TO COMPLY WITH SUCH ORDERS."  S. REP. NO. 621, 74TH CONG., 1ST SESS.,
50 (1935). 

/12/  ONE CAN HARDLY SUPPOSE THAT CONGRESS IN 1935 SPECIFICALLY
INTENDED TO BORROW THE WORDS OF ^ 20A AS THEY WOULD BE CONSTRUED BY
THIS COURT IN 1967.  CONGRESS BORROWED THE LANGUAGE AS IT WAS THEN
UNDERSTOOD, BECAUSE IT HAD "PROVED ITS USEFULNESS."  ID., AT 20. 

MOREOVER, CONGRESS DEPARTED FROM THE INTERSTATE COMMERCE ACT MODEL
WHEN IT ESTABLISHED AN EXCEPTION FOR STATE-REGULATED SECURITIES, SEE
N.10, SUPRA, AN EXCEPTION WHICH IS NOT FOUND IN THE INTERSTATE COMMERCE
ACT. 

/13/  NO LESS IMPORTANT ARE THE PRACTICAL DIFFERENCES BETWEEN
UTILITY AND RAILROAD FINANCING.  BECAUSE FOR SEVERAL DECADES THE
RAILROADS HAVE CONTRACTED RATHER THAN EXPANDED FACILITIES AND SERVICES,
THEY HAVE FOR THE MOST PART BEEN ABLE TO MEET THEIR CAPITAL NEEDS FROM
RETAINED EARNINGS AND EQUIPMENT TRUST FINANCING WITHOUT RESORTING TO
THE NATIONAL MARKETS FOR ADDITIONAL CAPITAL: 

RAILROADS MAY NOT ENLARGE THEIR TRACKAGE SIGNIFICANTLY AND MAY
CONTINUE TO RELY LARGELY ON INTERNAL RESOURCES AND THE UBIQUITOUS
EQUIPMENT TRUST TO FINANCE ADDITIONAL AND MORE EFFICIENT ROLLING
STOCK.  BUT THE ELECTRIC, NATURAL GAS, COMMUNICATIONS, AND WATER
INDUSTRIES, AS WELL AS THE AIRLINES, MUST GO TO THE INVESTMENT
FRATERNITY FOR STAGGERING AMOUNTS."  PRIEST, SUPRA, N.7, AT 451. 

/14/  IT IS WORTHY OF NOTE THAT A TRANSACTION BETWEEN TWO PUBLIC
UTILITIES RESEMBLING THE TRANSACTION PROPOSED IN DENVER & R.G.W.R. CO.
WOULD BE SUBMITTED TO THE COMMISSION, NOT UNDER ^ 204, BUT UNDER ^ 203,
WHICH PROVIDES IN PERTINENT PART THAT: 

"(A) NO PUBLIC UTILITY SHALL . . . PURCHASE, ACQUIRE, OR TAKE ANY
SECURITY OF ANY OTHER PUBLIC UTILITY, WITHOUT FIRST HAVING SECURED AN
ORDER OF THE COMMISSION AUTHORIZING IT TO DO SO."  16 U.S.C. ^ 824B. 
IN PASSING ON AN APPLICATION UNDER ^ 203, THE COMMISSION WOULD
INVESTIGATE CHARGES OF ANTICOMPETITIVE PRACTICES.  SEE SUPRA, AT 768. 
THUS THE SPECIFIC PROBLEM ADDRESSED BY THE COURT IN DENVER WOULD NOT
ARISE UNDER ^ 204. 

/15/  I WOULD NOT FORECLOSE THE POSSIBILITY THAT THE COMMISSION
SHOULD CONSIDER IN THE CONTEXT OF A ^ 204 APPLICATION AN ALLEGATION
THAT THE ISSUANCE OF THE SECURITY WAS ITSELF AN ANTITRUST VIOLATION. 
BUT SEE N.14, SUPRA.  THE PRESENT CASE IS NOT REMOTELY OF THIS TYPE. 

/16/  SEE N.4, SUPRA. 

BENNY HARRY HUGHES ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS BENJAMIN D. ORGAIN. 

LEO E. FORQUER ARGUED THE CAUSE FOR RESPONDENT FEDERAL POWER
COMMISSION IN SUPPORT OF PETITIONER.  WITH HIM ON THE BRIEF WAS GEORGE
W. MCHENRY, JR. 

ROBERT C. MCDIARMID ARGUED THE CAUSE FOR RESPONDENT CITIES OF
LAFAYETTE AND PLAQUEMINE, LOUISIANA.  WITH HIM ON THE BRIEF WAS GEORGE
SPIEGEL. 

HOWARD E. SHAPIRO ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL KAUPER, SAMUEL HUNTINGTON, AND
ROBERT B. NICHOLSON. 

HOWARD E. WAHRENBROCK FILED BRIEFS FOR PUBLIC SERVICE COMPANY OF
INDIANA, INC., AS AMICUS CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY NORTHCUTT ELY
FOR THE AMERICAN PUBLIC POWER ASSN., AND BY CHARLES J. MCCARTHY FOR DOW
CHEMICAL CO.
..END :









GAGNON, WARDEN V. SCARPELLI, 411 U.S. 778 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT 

     NO. 71 - 1225.  ARGUED JANUARY 9, 1973--DECIDED MAY 14, 1973;

  454 F.2D 416, AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 


    RESPONDENT, A FELONY PROBATIONER, WAS ARRESTED AFTER COMMITTING

  A BURGLARY.  HE ADMITTED INVOLVEMENT IN THE CRIME BUT LATER

  CLAIMED THAT THE ADMISSION WAS MADE UNDER DURESS AND WAS FALSE. 

  THE PROBATION OF RESPONDENT, WHO WAS NOT REPRESENTED BY AN

  ATTORNEY, WAS REVOKED WITHOUT A HEARING.  AFTER FILING A HABEAS

  CORPUS PETITION, HE WAS PAROLED.  THE DISTRICT COURT CONCLUDED

  THAT REVOCATION OF PROBATION WITHOUT HEARING AND COUNSEL WAS A

  DENIAL OF DUE PROCESS.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  DUE PROCESS MANDATES PRELIMINARY AND FINAL REVOCATION

 HEARINGS IN THE CASE OF A PROBATIONER UNDER THE SAME CONDITIONS

  AS ARE SPECIFIED IN MORRISSEY V. BREWER, 408 U.S. 471, IN THE

  CASE OF A PAROLEE.  PP. 781 - 782. 

2.  THE BODY CONDUCTING THE HEARINGS SHOULD DECIDE IN EACH

 INDIVIDUAL CASE WHETHER DUE PROCESS REQUIRES THAT AN INDIGENT

  PROBATIONER OR PAROLEE BE REPRESENTED BY COUNSEL.  THOUGH THE

  STATE IS NOT CONSTITUTIONALLY OBLIGED TO PROVIDE COUNSEL IN ALL

  CASES, IT SHOULD DO SO WHERE THE INDIGENT PROBATIONER OR PAROLEE

  MAY HAVE DIFFICULTY IN PRESENTING HIS VERSION OF DISPUTED FACTS

  WITHOUT THE EXAMINATION OR CROSS-EXAMINATION OF WITNESSES OR THE

  PRESENTATION OF COMPLICATED DOCUMENTARY EVIDENCE.  PRESUMPTIVELY,

  COUNSEL SHOULD BE PROVIDED WHERE, AFTER BEING INFORMED OF HIS

RIGHT, THE PROBATIONER OR PAROLEE REQUESTED COUNSEL, BASED ON A

  TIMELY AND COLORABLE CLAIM THAT HE HAS NOT COMMITTED THE ALLEGED

  VIOLATION OR, IF THE VIOLATION IS A MATTER OF PUBLIC RECORD OR

  UNCONTESTED, THERE ARE SUBSTANTIAL REASONS IN JUSTIFICATION OR

  MITIGATION THAT MAKE REVOCATION INAPPROPRIATE.  PP. 783 - 791. 

     3.  IN EVERY CASE WHERE A REQUEST FOR COUNSEL IS REFUSED, THE

  GROUNDS FOR REFUSAL SHOULD BE STATED SUCCINCTLY IN THE RECORD. 

  P. 791. 

     POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN,

  AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A STATEMENT

  DISSENTING IN PART, POST, P. 791. 

[[HC779'(ORIGINAL DOCUMENT PAGE 779)' 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE RELATED QUESTIONS WHETHER A PREVIOUSLY
SENTENCED PROBATIONER IS ENTITLED TO A HEARING WHEN HIS PROBATION IS
REVOKED AND, IF SO, WHETHER HE IS ENTITLED TO BE REPRESENTED BY
APPOINTED COUNSEL AT SUCH A HEARING. 

        I 

RESPONDENT, GERALD SCARPELLI, PLEADED GUILTY IN JULY 1965, TO A
CHARGE OF ARMED ROBBERY IN WISCONSIN.  THE TRIAL JUDGE SENTENCED HIM TO
15 YEARS' IMPRISONMENT, BUT SUSPENDED THE SENTENCE AND PLACED HIM ON
PROBATION FOR SEVEN YEARS IN THE CUSTODY OF THE WISCONSIN DEPARTMENT OF
PUBLIC WELFARE (THE DEPARTMENT).  /1/  AT THAT TIME, HE SIGNED AN
AGREEMENT SPECIFYING THE TERMS OF HIS PROBATION AND A "TRAVEL PERMIT
AND AGREEMENT TO RETURN" ALLOWING HIM TO RESIDE IN ILLINOIS, WITH
SUPERVISION THERE UNDER AN INTERSTATE COMPACT.  ON AUGUST 5, 1966, HE
WAS ACCEPTED FOR SUPERVISION BY THE ADULT PROBATION DEPARTMENT OF COOK
COUNTY, ILLINOIS. 

ON AUGUST 6, RESPONDENT WAS APPREHENDED BY ILLINOIS POLICE, WHO HAD
SURPRISED HIM AND ONE FRED KLECKNER, JR., IN THE COURSE OF THE BURGLARY
OF A HOUSE. 

[[HC780'(ORIGINAL DOCUMENT PAGE 780)' AFTER BEING APPRISED OF HIS
CONSTITUTIONAL RIGHTS, RESPONDENT ADMITTED THAT HE AND KLECKNER HAD
BROKEN INTO THE HOUSE FOR THE PURPOSE OF STEALING MERCHANDISE OR MONEY,
ALTHOUGH HE NOW ASSERTS THAT HIS STATEMENT WAS MADE UNDER DURESS AND IS
FALSE.  PROBATION WAS REVOKED BY THE WISCONSIN DEPARTMENT ON SEPTEMBER
1, WITHOUT A HEARING.  THE STATED GROUNDS FOR REVOCATION WERE THAT: 

"1.  (SCARPELLI) HAS ASSOCIATED WITH KNOWN CRIMINALS, IN DIRECT
VIOLATION OF HIS PROBATION REGULATIONS AND HIS SUPERVISING AGENT'S
INSTRUCTIONS; "2.  (SCARPELLI,) WHILE ASSOCIATING WITH A KNOWN
CRIMINAL, NAMELY FRED KLECKNER, JR., WAS INVOLVED IN, AND ARRESTED FOR,
A BURGLARY . . . IN DEERFIELD, ILLINOIS."  APP. 20. 

ON SEPTEMBER 4, 1965, HE WAS INCARCERATED IN THE WISCONSIN STATE
REFORMATORY AT GREEN BAY TO BEGIN SERVING THE 15 YEARS TO WHICH HE HAD
BEEN SENTENCED BY THE TRIAL JUDGE.  AT NO TIME WAS HE AFFORDED A
HEARING. 

SOME THREE YEARS LATER, ON DECEMBER 16, 1968, RESPONDENT APPLIED FOR
A WRIT OF HABEAS CORPUS.  AFTER THE PETITION HAD BEEN FILED, BUT BEFORE
IT HAD BEEN ACTED UPON, THE DEPARTMENT PLACED RESPONDENT ON PAROLE. 
/2/  THE DISTRICT COURT FOUND THAT HIS STATUS AS PAROLEE WAS SUFFICIENT
CUSTODY TO CONFER JURISDICTION ON THE COURT AND THAT THE PETITION WAS
NOT MOOT BECAUSE THE REVOCATION CARRIED "COLLATERAL CONSEQUENCES,"
PRESUMABLY INCLUDING THE RESTRAINTS IMPOSED BY HIS PAROLE.  ON THE
MERITS, THE DISTRICT COURT HELD THAT REVOCATION WITHOUT A HEARING AND
COUNSEL WAS A DENIAL OF DUE PROCESS.  317 F.SUPP.  72 (ED WIS. 1970). 
THE COURT OF APPEALS AFFIRMED SUBNOM.  GUNSOLUS V. GAGNON, 454 F.2D 416
(CA7 1971), AND WE GRANTED CERTIORARI.  408 U.S. 921 (1972). 

[[HC781'(ORIGINAL DOCUMENT PAGE 781)'

        II 

TWO PRIOR DECISIONS SET THE BOUNDS OF OUR PRESENT INQUIRY.  IN MEMPA
V. RHAY, 389 U.S. 128 (1967), THE COURT HELD THAT A PROBATIONER IS
ENTITLED TO BE REPRESENTED BY APPOINTED COUNSEL AT A COMBINED
REVOCATION AND SENTENCING HEARING.  REASONING THAT COUNSEL IS REQUIRED
"AT EVERY STAGE OF A CRIMINAL PROCEEDING WHERE SUBSTANTIAL RIGHTS OF A
CRIMINAL ACCUSED MAY BE AFFECTED,"  ID., AT 134, AND THAT SENTENCING IS
ONE SUCH STAGE, THE COURT CONCLUDED THAT COUNSEL MUST BE PROVIDED AN
INDIGENT AT SENTENCING EVEN WHEN IT IS ACCOMPLISHED AS PART OF A
SUBSEQUENT PROBATION REVOCATION PROCEEDING.  BUT THIS LINE OF REASONING
DOES NOT REQUIRE A HEARING OR COUNSEL AT THE TIME OF PROBATION
REVOCATION IN A CASE SUCH AS THE PRESENT ONE, WHERE THE PROBATIONER WAS
SENTENCED AT THE TIME OF TRIAL. 

OF GREATER RELEVANCE IS OUR DECISION LAST TERM IN MORRISSEY V.
BREWER, 408 U.S. 471 (1972).  THERE WE HELD THAT THE REVOCATION OF
PAROLE IS NOT A PART OF A CRIMINAL PROSECUTION. 

"PAROLE ARISES AFTER THE END OF THE CRIMINAL PROSECUTION, INCLUDING
IMPOSITION OF SENTENCE.  . . . REVOCATION DEPRIVES AN INDIVIDUAL, NOT
OF THE ABSOLUTE LIBERTY TO WHICH EVERY CITIZEN IS ENTITLED, BUT ONLY OF
THE CONDITIONAL LIBERTY PROPERLY DEPENDENT ON OBSERVANCE OF SPECIAL
PAROLE RESTRICTIONS."  ID., AT 480. 

EVEN THOUGH THE REVOCATION OF PAROLE IS NOT A PART OF THE CRIMINAL
PROSECUTION, WE HELD THAT THE LOSS OF LIBERTY ENTAILED IS A SERIOUS
DEPRIVATION REQUIRING THAT THE PAROLEE BE ACCORDED DUE PROCESS. 
SPECIFICALLY, WE HELD THAT A PAROLEE IS ENTITLED TO TWO HEARINGS, ONE A
PRELIMINARY HEARING AT THE TIME OF HIS ARREST AND DETENTION TO
DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE THAT HE HAS
COMMITTED A VIOLATION OF HIS PAROLE, AND THE OTHER A SOMEWHAT MORE
COMPREHENSIVE HEARING PRIOR TO THE MAKING OF THE FINAL REVOCATION
DECISION. 

[[HC782'(ORIGINAL DOCUMENT PAGE 782)' 

PETITIONER DOES NOT CONTEND THAT THERE IS ANY DIFFERENCE RELEVANT TO
THE GUARANTEE OF DUE PROCESS BETWEEN THE REVOCATION OF PAROLE AND THE
REVOCATION OF PROBATION, NOR DO WE PERCEIVE ONE.  /3/  PROBATION
REVOCATION, LIKE PAROLE REVOCATION, IS NOT A STAGE OF A CRIMINAL
PROSECUTION, BUT DOES RESULT IN A LOSS OF LIBERTY.  /4/  ACCORDINGLY,
WE HOLD THAT A PROBATIONER, LIKE A PAROLEE, IS ENTITLED TO A
PRELIMINARY AND A FINAL REVOCATION HEARING, UNDER THE CONDITIONS
SPECIFIED IN MORRISSEY V. BREWER, SUPRA.  /5/ 

[[HC783'(ORIGINAL DOCUMENT PAGE 783)'

        III 

THE SECOND, AND MORE DIFFICULT, QUESTION POSED BY THIS CASE IS
WHETHER AN INDIGENT PROBATIONER OR PAROLEE HAS A DUE PROCESS RIGHT TO
BE REPRESENTED BY APPOINTED COUNSEL AT THESE HEARINGS.  /6/  IN
ANSWERING THAT QUESTION, WE DRAW HEAVILY ON THE OPINION IN MORRISSEY. 
OUR FIRST POINT OF REFERENCE IS THE CHARACTER OF PROBATION OR PAROLE. 
AS NOTED IN MORRISSEY REGARDING PAROLE, THE "PURPOSE IS TO HELP
INDIVIDUALS REINTEGRATE INTO SOCIETY AS CONSTRUCTIVE INDIVIDUALS AS
SOON AS THEY ARE ABLE.  . . ."  408 U.S., AT 477.  THE DUTY AND
ATTITUDE OF THE PROBATION OR PAROLE OFFICER REFLECT THIS PURPOSE: 

     "WHILE THE PAROLE OR PROBATION OFFICER RECOGNIZES HIS DOUBLE

  DUTY TO THE WELFARE OF HIS CLIENTS AND TO THE SAFETY OF THE

  GENERAL COMMUNITY, BY AND LARGE CONCERN FOR THE CLIENT DOMINATES

  HIS PROFESSIONAL ATTITUDE. 

[[HC784'(ORIGINAL DOCUMENT PAGE 784)'

  THE PAROLE AGENT ORDINARILY DEFINES HIS ROLE AS REPRESENTING HIS
CLIENT'S BEST INTERESTS AS

  LONG AS THESE DO NOT CONSTITUTE A THREAT TO PUBLIC SAFETY."  /7/ 

BECAUSE THE PROBATION OR PAROLE OFFICER'S FUNCTION IS NOT SO MUCH TO
COMPEL CONFORMANCE TO A STRICT CODE OF BEHAVIOR AS TO SUPERVISE A
COURSE OF REHABILITATION, HE HAS BEEN ENTRUSTED TRADITIONALLY WITH
BROAD DISCRETION TO JUDGE THE PROGRESS OF REHABILITATION IN INDIVIDUAL
CASES, EVEN TO DECLARE REVOCATION. 

IN MORRISSEY, WE RECOGNIZED THAT THE REVOCATION DECISION HAS TWO
ANALYTICALLY DISTINCT COMPONENTS: 

"THE FIRST STEP IN A REVOCATION DECISION THUS INVOLVES A WHOLLY
RETROSPECTIVE FACTUAL QUESTION:  WHETHER THE PAROLEE HAS IN FACT ACTED
IN VIOLATION OF ONE OR MORE CONDITIONS OF HIS PAROLE.  ONLY IF IT IS
DETERMINED THAT THE PAROLEE DID VIOLATE THE CONDITIONS DOES THE SECOND
QUESTION ARISE:  SHOULD THE PAROLEE BE RECOMMITTED TO PRISON OR SHOULD
OTHER STEPS BE TAKEN TO PROTECT SOCIETY AND IMPROVE CHANCES OF
REHABILITATION?"  MORRISSEY V. BREWER, SUPRA, AT 479 - 480.  /8/ 

[[HC785'(ORIGINAL DOCUMENT PAGE 785)' 

THE PAROLE OFFICER'S ATTITUDE TOWARD THESE DECISIONS REFLECTS THE
REHABILITATIVE RATHER THAN PUNITIVE FOCUS OF THE PROBATION/PAROLE
SYSTEM: 

"REVOCATION . . . IS, IF ANYTHING, COMMONLY TREATED AS A FAILURE OF
SUPERVISION.  WHILE PRESUMABLY IT WOULD BE INAPPROPRIATE FOR A FIELD
AGENT NEVER TO REVOKE, THE WHOLE THRUST OF THE PROBATION-PAROLE
MOVEMENT IS TO KEEP MEN IN THE COMMUNITY, WORKING WITH ADJUSTMENT
PROBLEMS THERE, AND USING REVOCATION ONLY AS A LAST RESORT WHEN
TREATMENT HAS FAILED OR IS ABOUT TO FAIL."  /9/ 

BUT AN EXCLUSIVE FOCUS ON THE BENEVOLENT ATTITUDES OF THOSE WHO
ADMINISTER THE PROBATION/PAROLE SYSTEM WHEN IT IS WORKING SUCCESSFULLY
OBSCURES THE MODIFICATION IN ATTITUDE WHICH IS LIKELY TO TAKE PLACE
ONCE THE OFFICER HAS DECIDED TO RECOMMEND REVOCATION.  EVEN THOUGH THE
OFFICER IS NOT BY THIS RECOMMENDATION CONVERTED INTO A PROSECUTOR
COMMITTED TO CONVICT, HIS ROLE AS COUNSELLOR TO THE PROBATIONER OR
PAROLEE IS THEN SURELY COMPROMISED. 

WHEN THE OFFICER'S VIEW OF THE PROBATIONER'S OR PAROLEE'S CONDUCT
DIFFERS IN THIS FUNDAMENTAL WAY FROM THE LATTER'S OWN VIEW, DUE PROCESS
REQUIRES THAT THE DIFFERENCE BE RESOLVED BEFORE REVOCATION BECOMES
FINAL.  BOTH THE PROBATIONER OR PAROLEE AND THE STATE HAVE INTERESTS IN
THE ACCURATE FINDING OF FACT AND THE INFORMED USE OF DISCRETION--THE
PROBATIONER OR PAROLEE TO INSURE THAT HIS LIBERTY IS NOT UNJUSTIFIABLY
TAKEN AWAY AND THE STATE TO MAKE CERTAIN THAT IT IS NEITHER
UNNECESSARILY INTERRUPTING A SUCCESSFUL EFFORT AT REHABILITATION NOR
IMPRUDENTLY PREJUDICING THE SAFETY OF THE COMMUNITY. 

[[HC786'(ORIGINAL DOCUMENT PAGE 786)' 

IT WAS TO SERVE ALL OF THESE INTERESTS THAT MORRISSEY MANDATED
PRELIMINARY AND FINAL REVOCATION HEARINGS.  AT THE PRELIMINARY HEARING,
A PROBATIONER OR PAROLEE IS ENTITLED TO NOTICE OF THE ALLEGED
VIOLATIONS OF PROBATION OR PAROLE, AN OPPORTUNITY TO APPEAR AND TO
PRESENT EVIDENCE IN HIS OWN BEHALF, A CONDITIONAL RIGHT TO CONFRONT
ADVERSE WITNESSES, AN INDEPENDENT DECISIONMAKER, AND A WRITTEN REPORT
OF THE HEARING.  MORRISSEY V. BREWER, SUPRA, AT 487.  THE FINAL HEARING
IS A LESS SUMMARY ONE BECAUSE THE DECISION UNDER CONSIDERATION IS THE
ULTIMATE DECISION TO REVOKE RATHER THAN A MERE DETERMINATION OF
PROBABLE CAUSE, BUT THE "MINIMUM REQUIREMENTS OF THE PROCESS" INCLUDE
VERY SIMILAR ELEMENTS: 

"(A) WRITTEN NOTICE OF THE CLAIMED VIOLATIONS OF (PROBATION OR)
PAROLE; (B) DISCLOSURE TO THE (PROBATIONER OR) PAROLEE OF EVIDENCE
AGAINST HIM; (C) OPPORTUNITY TO BE HEARD IN PERSON AND TO PRESENT
WITNESSES AND DOCUMENTARY EVIDENCE; (D) THE RIGHT TO CONFRONT AND CROSS
EXAMINE ADVERSE WITNESSES (UNLESS THE HEARING OFFICER SPECIFICALLY
FINDS A GOOD CAUSE FOR NOT ALLOWING CONFRONTATION); (E) A 'NEUTRAL AND
DETACHED' HEARING BODY SUCH AS A TRADITIONAL PAROLE BOARD, MEMBERS OF
WHICH NEED NOT BE JUDICIAL OFFICERS OR LAWYERS; AND (F) A WRITTEN
STATEMENT BY THE FACTFINDERS AS TO THE EVIDENCE RELIED ON AND REASONS
FOR REVOKING (PROBATION OR) PAROLE."  MORRISSEY V. BREWER, SUPRA, AT
489. 

THESE REQUIREMENTS IN THEMSELVES SERVE AS SUBSTANTIAL PROTECTION
AGAINST ILL-CONSIDERED REVOCATION, AND PETITIONER ARGUES THAT COUNSEL
NEED NEVER BE SUPPLIED.  WHAT THIS ARGUMENT OVERLOOKS IS THAT THE
EFFECTIVENESS OF THE RIGHTS GUARANTEED BY MORRISSEY MAY IN SOME
CIRCUMSTANCES DEPEND ON THE USE OF SKILLS WHICH THE PROBATIONER OR
PAROLEE IS UNLIKELY TO POSSESS.  DESPITE THE INFORMAL NATURE OF THE
PROCEEDINGS AND THE ABSENCE OF TECHNICAL RULES OF PROCDURE OR EVIDENCE,
THE UNSKILLED OR UNEDUCATED PROBATIONER OR PAROLEE MAY WELL HAVE
DIFFICULTY IN PRESENTING HIS VERSION OF A DISPUTED SET OF FACTS WHERE
THE PRESENTATION REQUIRES THE EXAMINING OR CROSS-EXAMINING OF WITNESSES
OR THE OFFERING OR DISSECTING OF COMPLEX DOCUMENTARY EVIDENCE. 

[[HC787'(ORIGINAL DOCUMENT PAGE 787)' 

BY THE SAME TOKEN, WE THINK THAT THE COURT OF APPEALS ERRED IN
ACCEPTING RESPONDENT'S CONTENTION THAT THE STATE IS UNDER A
CONSTITUTIONAL DUTY TO PROVIDE COUNSEL FOR INDIGENTS IN ALL PROBATION
OR PAROLE REVOCATION CASES.  WHILE SUCH A RULE HAS THE APPEAL OF
SIMPLICITY, IT WOULD IMPOSE DIRECT COSTS AND SERIOUS COLLATERAL
DISADVANTAGES WITHOUT REGARD TO THE NEED OR THE LIKLIHOOD IN A
PARTICULAR CASE FOR A CONSTRUCTIVE CONTRIBUTION BY COUNSEL.  IN MOST
CASES, THE PROBATIONER OR PAROLEE HAS BEEN CONVICTED OF COMMITTING
ANOTHER CRIME OR HAS ADMITTED THE CHARGES AGAINST HIM.  /10/  AND WHILE
IN SOME CASES HE MAY HAVE A JUSTIFIABLE EXCUSE FOR THE VIOLATION OR A
CONVINCING REASON WHY REVOCATION IS NOT THE APPROPRIATE DISPOSITION,
MITIGATING EVIDENCE OF THIS KIND IS OFTEN NOT SUSCEPTIBLE OF PROOF OR
IS SO SIMPLE AS NOT TO REQUIRE EITHER INVESTIGATION OR EXPOSITION BY
COUNSEL. 

THE INTRODUCTION OF COUNSEL INTO A REVOCATION PROCEEDING WILL ALTER
SIGNIFICANTLY THE NATURE OF THE PROCEEDING.  IF COUNSEL IS PROVIDED FOR
THE PROBATIONER OR PAROLEE, THE STATE IN TURN WILL NORMALLY PROVIDE ITS
OWN COUNSEL; LAWYERS, BY TRAINING AND DISPOSITION, ARE ADVOCATES AND
BOUND BY PROFESSIONAL DUTY TO PRESENT ALL AVAILABLE EVIDENCE AND
ARGUMENTS IN SUPPORT OF THEIR CLIENTS'  POSITIONS AND TO CONTEST WITH
VIGOR ALL ADVERSE EVIDENCE AND VIEWS.  THE ROLE OF THE HEARING BODY
ITSELF, APTLY DESCRIBED IN MORRISSEY AS BEING "PREDICTIVE AND
DISCRETIONARY" AS WELL AS FACTFINDING, MAY BECOME MORE AKIN TO THAT OF
A JUDGE AT A TRIAL, AND LESS ATTUNED TO THE REHABILITATIVE NEEDS OF THE
INDIVIDUAL PROBATIONER OR PAROLEE. 

[[HC788'(ORIGINAL DOCUMENT PAGE 788)'  IN THE GREATER SELF
CONSCIOUSNESS OF ITS QUASI-JUDICIAL ROLE, THE HEARING BODY MAY BE LESS
TOLERANT OF MARGINAL DEVIANT BEHAVIOR AND FEEL MORE PRESSURE TO
REINCARCERATE OTHER THAN TO CONTINUE NONPUNITIVE REHABILITATION. 
CERTAINLY, THE DECISIONMAKING PROCESS WILL BE PROLONGED, AND THE
FINANCIAL COST TO THE STATE--FOR APPOINTED COUNSEL, COUNSEL FOR THE
STATE, A LONGER RECORD, AND THE POSSIBILITY OF JUDICIAL REVIEW--WILL
NOT BE INSUBSTANTIAL.  /11/    IN SOME CASES, THESE MODIFICATIONS IN
THE NATURE OF THE REVOCATION HEARING MUST BE ENDURED AND THE COSTS
BORNE BECAUSE, AS WE HAVE INDICATED ABOVE, THE PROBATIONER'S OR
PAROLEE'S VERSION OF A DISPUTED ISSUE CAN FAIRLY BE REPRESENTED ONLY BY
A TRAINED ADVOCATE.  BUT DUE PROCESS IS NOT SO RIGID AS TO REQUIRE THAT
THE SIGNIFICANT INTERESTS IN INFORMALITY, FLEXIBILITY, AND ECONOMY MUST
ALWAYS BE SACRIFICED. 

IN SO CONCLUDING, WE ARE OF COURSE AWARE THAT THE CASE-BY-CASE
APPROACH TO THE RIGHT TO COUNSEL IN FELONY PROSECUTIONS ADOPTED IN
BETTS V. BRADY, 316 U.S. 455 (1942), WAS LATER REJECTED IN FAVOR OF A
PER SE RULE IN GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963).  SEE ALSO
ARGERSINGER V. HAMLIN, 407 U.S. 25 (1972).  WE DO NOT, HOWEVER, DRAW
FROM GIDEON AND ARGERSINGER THE CONCLUSION THAT A CASE-BY-CASE APPROACH
TO FURNISHING COUNSEL IS NECESSARILY INADEQUATE TO PROTECT
CONSTITUTIONAL RIGHTS ASSERTED IN VARYING TYPES OF PROCEEDINGS:  THERE
ARE CRITICAL DIFFERENCES BETWEEN CRIMINAL TRIALS AND PROBATION OR
PAROLE REVOCATION HEARINGS, AND BOTH SOCIETY AND THE PROBATIONER OF
PAROLEE HAVE STAKES IN PRESERVING THESE DIFFERENCES. 

[[HC789'(ORIGINAL DOCUMENT PAGE 789)' 

IN A CRIMINAL TRIAL, THE STATE IS REPRESENTED BY A PROSECUTOR;
FORMAL RULES OF EVIDENCE ARE IN FORCE; A DEFENDANT ENJOYS A NUMBER OF
PROCEDURAL RIGHTS WHICH MAY BE LOST IF NOT TIMELY RAISED; AND, IN A
JURY TRIAL, A DEFENDANT MUST MAKE A PRESENTATION UNDERSTANDABLE TO
UNTRAINED JURORS.  IN SHORT, A CRIMINAL TRIAL UNDER OUR SYSTEM IS AN
ADVERSARY PROCEEDING WITH ITS OWN UNIQUE CHARACTERISTICS.  IN A
REVOCATION HEARING, ON THE OTHER HAND, THE STATE IS REPRESENTED, NOT BY
A PROSECUTOR, BUT BY A PAROLE OFFICER WITH THE ORIENTATION DESCRIBED
ABOVE; FORMAL PROCEDURES AND RULES OF EVIDENCE ARE NOT EMPLOYED; AND
THE MEMBERS OF THE HEARING BODY ARE FAMILIAR WITH THE PROBLEMS AND
PRACTICE OF PROBATION OR PAROLE.  THE NEED FOR COUNSEL AT REVOCATION
HEARINGS DERIVES, NOT FROM THE INVARIABLE ATTRIBUTES OF THOSE HEARINGS,
BUT RATHER FROM THE PECULIARITIES OF PARTICULAR CASES. 

THE DIFFERENCES BETWEEN A CRIMINAL TRIAL AND A REVOCATION HEARING DO
NOT DISPOSE ALTOGETHER OF THE ARGUMENT THAT UNDER A CASE-BY-CASE
APPROACH THERE MAY BE CASES IN WHICH A LAWYER WOULD BE USEFUL BUT IN
WHICH NONE WOULD BE APPOINTED BECAUSE AN ARGUABLE DEFENSE WOULD BE
UNCOVERED ONLY BY A LAWYER.  WITHOUT DENYING THAT THERE IS SOME FORCE
IN THIS ARGUMENT, WE THINK IT A SUFFICIENT ANSWER THAT WE DEAL HERE,
NOT WITH THE RIGHT OF AN ACCUSED TO COUNSEL IN A CRIMINAL PROSECUTION,
BUT WITH THE MORE LIMITED DUE PROCESS RIGHT OF ONE WHO IS A PROBATIONER
OR PAROLEE ONLY BECAUSE HE HAS BEEN CONVICTED OF A CRIME.  /12/ 

[[HC790'(ORIGINAL DOCUMENT PAGE 790)' 

WE THUS FIND NO JUSTIFICATION FOR A NEW INFLEXIBLE CONSTITUTIONAL
RULE WITH RESPECT TO THE REQUIREMENT OF COUNSEL.  WE THINK, RATHER,
THAT THE DECISION AS TO THE NEED FOR COUNSEL MUST BE MADE ON A CASE-BY
CASE BASIS IN THE EXERCISE OF A SOUND DISCRETION BY THE STATE AUTHORITY
CHARGED WITH RESPONSIBILITY FOR ADMINISTERING THE PROBATION AND PAROLE
SYSTEM.  ALTHOUGH THE PRESENCE AND PARTICIPATION OF COUNSEL WILL
PROBABLY BE BOTH UNDESIRABLE AND CONSTITUTIONALLY UNNECESSARY IN MOST
REVOCATION HEARINGS, THERE WILL REMAIN CERTAIN CASES IN WHICH
FUNDAMENTAL FAIRNESS--THE TOUCHSTONE OF DUE PROCESS--WILL REQUIRE THAT
THE STATE PROVIDE AT ITS EXPENSE COUNSEL FOR INDIGENT PROBATIONERS OR
PAROLEES. 

IT IS NEITHER POSSIBLE NOR PRUDENT TO ATTEMPT TO FORMULATE A PRECISE
AND DETAILED SET OF GUIDELINES TO BE FOLLOWED IN DETERMINING WHEN THE
PROVIDING OF COUNSEL IS NECESSARY TO MEET THE APPLICABLE DUE PROCESS
REQUIREMENTS.  THE FACTS AND CIRCUMSTANCES IN PRELIMINARY AND FINAL
HEARINGS ARE SUSCEPTIBLE OF ALMOST INFINITE VARIATION, AND A
CONSIDERABLE DISCRETION MUST BE ALLOWED THE RESPONSIBLE AGENCY IN
MAKING THE DECISION.  PRESUMPTIVELY, IT MAY BE SAID THAT COUNSEL SHOULD
BE PROVIDED IN CASES WHERE, PROBATIONER OR PAROLEE MAKES SUCH A
REQUEST, BASED ON A TIMELY AND COLORABLE CLAIM (I) THAT HE HAS NOT
COMMITTED THE ALLEGED VIOLATION OF THE CONDITIONS UPON WHICH HE IS AT
LIBERTY; OR (II) THAT, EVEN IF THE VIOLATION IS A MATTER OF PUBLIC
RECORD OR IS UNCONTESTED, THERE ARE SUBSTANTIAL REASONS WHICH JUSTIFIED
OR MITIGATED THE VIOLATION AND MAKE REVOCATION INAPPROPRIATE, AND THAT
THE REASONS ARE COMPLEX OR OTHERWISE DIFFICULT TO DEVELOP OR PRESENT. 
IN PASSING ON A REQUEST FOR THE APPOINTMENT OF COUNSEL, THE RESPONSIBLE
AGENCY ALSO SHOULD CONSIDER, ESPECIALLY IN DOUBTFUL CASES, WHETHER THE
PROBATIONER APPEARS TO BE CAPABLE OF SPEAKING EFFECTIVELY FOR HIMSELF. 

[[HC791'(ORIGINAL DOCUMENT PAGE 791)'  IN EVERY CASE IN WHICH A
REQUEST FOR COUNSEL AT A PRELIMINARY OR FINAL HEARING IS REFUSED, THE
GROUNDS FOR REFUSAL SHOULD BE STATED SUCCINCTLY IN THE RECORD. 

        IV 

WE RETURN TO THE FACTS OF THE PRESENT CASE.  BECAUSE RESPONDENT WAS
NOT AFFORDED EITHER A PRELIMINARY HEARING OR A FINAL HEARING, THE
REVOCATION OF HIS PROBATION DID NOT MEET THE STANDARDS OF DUE PROCESS
PRESCRIBED IN MORRISSEY, WHICH WE HAVE HERE HELD APPLICABLE TO
PROBATION REVOCATIONS.  ACCORDINGLY, RESPONDENT WAS ENTITLED TO A WRIT
OF HABEAS CORPUS.  ON REMAND, THE DISTRICT COURT SHOULD ALLOW THE STATE
AN OPPORTUNITY TO CONDUCT SUCH A HEARING.  AS TO WHETHER THE STATE MUST
PROVIDE COUNSEL, RESPONDENT'S ADMISSION TO HAVING COMMITTED ANOTHER
SERIOUS CRIME CREATES THE VERY SORT OF SITUATION IN WHICH COUNSEL NEED
NOT ORDINARILY BE PROVIDED.  BUT BECAUSE OF RESPONDENT'S SUBSEQUENT
ASSERTIONS REGARDING THAT ADMISSION, SEE SUPRA, AT 780, WE CONCLUDE
THAT THE FAILURE OF THE DEPARTMENT TO PROVIDE RESPONDENT WITH THE
ASSISTANCE OF COUNSEL SHOULD BE RE-EXAMINED IN LIGHT OF THIS OPINION. 
THE GENERAL GUIDELINES OUTLINED ABOVE SHOULD BE APPLIED IN THE FIRST
INSTANCE BY THOSE CHARGED WITH CONDUCTING THE REVOCATION HEARING. 

              AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED. 

/1/  THE COURT'S ORDER PLACING RESPONDENT ON PROBATION PROVIDED,
AMONG OTHER THINGS, THAT "(IN THE EVENT OF HIS FAILURE TO MEET THE
CONDITIONS OF HIS PROBATION HE WILL STAND COMMITTED UNDER THE SENTENCE
ALREADY IMPOSED."  APP. 10.  THE AGREEMENT SPECIFYING THE CONDITIONS OF
THE PROBATION, DULY EXECUTED BY RESPONDENT, OBLIGATED HIM TO "MAKE A
SINCERE ATTEMPT TO AVOID ALL ACTS WHICH ARE FORBIDDEN BY LAW.  . . ." 
APP. 12. 

/2/  RESPONDENT WAS INITIALLY PAROLED TO A FEDERAL DETAINER TO SERVE
A PREVIOUSLY IMPOSED FEDERAL SENTENCE ARISING FROM ANOTHER CONVICTION. 
HE WAS SUBSEQUENTLY RELEASED FROM FEDERAL CUSTODY, BUT REMAINS A
PAROLEE UNDER THE SUPERVISION OF THE DEPARTMENT. 

/3/  DESPITE THE UNDOUBTED MINOR DIFFERENCES BETWEEN PROBATION AND
PAROLE, THE COMMENTATORS HAVE AGREED THAT REVOCATION OF PROBATION WHERE
SENTENCE HAS BEEN IMPOSED PREVIOUSLY IS CONSTITUTIONALLY
INDISTINGUISHABLE FROM THE REVOCATION OF PAROLE.  SEE, E.G., VAN DYKE,
PAROLE REVOCATION HEARINGS IN CALIFORNIA:  THE RIGHT TO COUNSEL, 59
CALIF. L. REV. 1215, 1241 - 1243 (1971); SKLAR, LAW AND PRACTICE IN
PROBATION AND PAROLE REVOCATION HEARINGS, 55 J. CRIM. L.C. & P.S. 175,
198 N. 182 (1964). 

/4/  IT IS CLEAR AT LEAST AFTER MORRISSEY V. BREWER, 408 U.S. 471
(1972), THAT A PROBATIONER CAN NO LONGER BE DENIED DUE PROCESS, IN
RELIANCE ON THE DICTUM IN ESCOE V. ZERBST, 295 U.S. 490, 492 (1935),
THAT PROBATION IS "ACT OF GRACE." 

/5/  PETITIONER ARGUES, IN ADDITION, THAT THE MORRISSEY HEARING
REQUIREMENTS IMPOSE SERIOUS PRACTICAL PROBLEMS IN CASES SUCH AS THE
PRESENT ONE IN WHICH A PROBATIONER OR PAROLEE IS ALLOWED TO LEAVE THE
CONVICTING STATE FOR SUPERVISION IN ANOTHER STATE.  SUCH ARRANGEMENTS
ARE MADE PURSUANT TO AN INTERSTATE COMPACT ADOPTED BY ALL OF THE
STATES, INCLUDING WISCONSIN.  WIS. STAT. ANN. ^ 57.13 (1957). 
PETITIONER'S BRIEF ASSERTS THAT AS OF JUNE 30, 1972, WISCONSIN HAD A
TOTAL OF 642 PAROLEES AND PROBATIONERS UNDER SUPERVISION IN OTHER
STATES AND THAT INCOMPLETE STATISTICS AS OF JUNE 30, 1971, INDICATED A
NATIONAL TOTAL OF 24,693 PERSONS UNDER OUT-OF-STATE SUPERVISION.  BRIEF
FOR PETITIONER 21 - 22. 

SOME AMOUNT OF DISRUPTION INEVITABLY ATTENDS ANY NEW CONSTITUTIONAL
RULING.  WE ARE CONFIDENT, HOWEVER, THAT MODIFICATION OF THE INTERSTATE
COMPACT CAN REMOVE WITHOUT UNDUE STRAIN THE MORE SERIOUS TECHNICAL
HURDLES TO COMPLIANCE WITH MORRISSEY.  AN ADDITIONAL COMMENT IS
WARRANTED WITH RESPECT TO THE RIGHTS TO PRESENT WITNESSES AND TO
CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES.  PETITIONER'S GREATEST
CONCERN IS WITH THE DIFFICULTY AND EXPENSE OF PROCURING WITNESSES FROM
PERHAPS THOUSANDS OF MILES AWAY.  WHILE IN SOME CASES THERE IS SIMPLY
NO ADEQUATE ALTERNATIVE TO LIVE TESTIMONY, WE EMPHASIZE THAT WE DID NOT
IN MORRISSEY INTEND TO PROHIBIT USE WHERE APPROPRIATE OF THE
CONVENTIONAL SUBSTITUTES FOR LIVE TESTIMONY, INCLUDING AFFIDAVITS,
DEPOSITIONS, AND DOCUMENTARY EVIDENCE.  NOR DID WE INTEND TO FORECLOSE
THE STATES FROM HOLDING BOTH THE PRELIMINARY AND THE FINAL HEARINGS AT
THE PLACE OF VIOLATION OR FROM DEVELOPING OTHER CREATIVE SOLUTIONS TO
THE PRACTICAL DIFFICULTIES OF THE MORRISSEY REQUIREMENTS. 

/6/  IN MORRISSEY V. BREWER, WE LEFT OPEN THE QUESTION "WHETHER THE
PAROLEE IS ENTITLED TO THE ASSISTANCE OF RETAINED COUNSEL OR TO
APPOINTED COUNSEL IF HE IS INDIGENT."  408 U.S., AT 489.  SINCE
RESPONDENT DID NOT ATTEMPT TO RETAIN COUNSEL BUT ASKED ONLY FOR
APPOINTED COUNSEL, WE HAVE NO OCCASION TO DECIDE IN THIS CASE WHETHER A
PROBATIONER OR PAROLEE HAS A RIGHT TO BE REPRESENTED AT A REVOCATION
HEARING BY RETAINED COUNSEL IN SITUATIONS OTHER THAN THOSE WHERE THE
STATE WOULD BE OBLIGED TO FURNISH COUNSEL FOR AN INDIGENT. 

/7/  F. REMINGTON, D. NEWMAN, E. KIMBALL, M. MELLI & H. GOLDSTEIN,
CRIMINAL JUSTICE ADMINISTRATION, MATERIALS AND CASES 910 - 911 (1969). 

/8/  THE FACTORS ENTERING INTO THESE DECISIONS RELATE IN MAJOR PART
TO A PROFESSIONAL EVALUATION, BY TRAINED PROBATION OR PAROLE OFFICERS,
AS TO THE OVERALL SOCIAL READJUSTMENT OF THE OFFENDER IN THE COMMUNITY,
AND INCLUDE CONSIDERATION OF SUCH VARIABLES AS THE OFFENDER'S
RELATIONSHIP TOWARD HIS FAMILY, HIS ATTITUDE TOWARD THE FULFILLMENT OF
FINANCIAL OBLIGATIONS, THE EXTENT OF HIS COOPERATION WITH THE PROBATION
OFFICER ASSIGNED TO HIS CASE, HIS PERSONAL ASSOCIATIONS, AND--OF COURSE
-WHETHER THERE HAVE BEEN SPECIFIC AND SIGNIFICANT VIOLATIONS OF THE
CONDITIONS OF THE PROBATION.  THE IMPORTANCE OF THESE CONSIDERATIONS,
SOME FACTUAL AND OTHERS ENTIRELY JUDGMENTAL, IS ILLUSTRATED BY A
WISCONSIN EMPIRICAL STUDY WHICH DISCLOSED THAT, IN THE SAMPLE STUDIED,
PROBATION OR PAROLE WAS REVOKED IN ONLY 34.5% OF THE CASES IN WHICH THE
PROBATIONER OR PAROLEE VIOLATED THE TERMS OF HIS RELEASE.  S. HUNT, THE
REVOCATION DECISION:  A STUDY OF PROBATION AND PAROLE AGENTS'
DISCRETION 10 (UNPUBLISHED THESIS ON FILE AT THE LIBRARY OF THE
UNIVERSITY OF WISCONSIN) (1964), CITED IN BRIEF FOR PETITIONER,
ADDENDUM 106. 

/9/  REMINGTON, NEWMAN, KIMBALL, MELLI & GOLDSTEIN, SUPRA, N.7, AT
910. 

/10/  SEE SKLAR, SUPRA, N.3, AT 192 (PAROLE), 193 (PROBATION). 

/11/  THE SCOPE OF THE PRACTICAL PROBLEM WHICH WOULD BE OCCASIONED
BY A REQUIREMENT OF COUNSEL IN ALL REVOCATION CASES IS SUGGESTED BY THE
FACT THAT IN THE MID-1960'S THERE WAS AN ESTIMATED AVERAGE OF 20,000
ADULT FELONY PAROLE REVOCATIONS AND 108,000 ADULT PROBATION REVOCATIONS
EACH YEAR.  PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:  THE COURTS 56 N.18
(1967). 

/12/  CF. IN RE GAULT, 387 U.S. 1 (1967), ESTABLISHING A JUVENILE'S
RIGHT TO APPOINTED COUNSEL IN A DELINQUENCY PROCEEDING WHICH, WHILE
DENOMINATED CIVIL, WAS FUNCTIONALLY AKIN TO A CRIMINAL TRIAL.  A
JUVENILE CHARGED WITH VIOLATION OF A GENERALLY APPLICABLE STATUTE IS
DIFFERENTLY SITUATED FROM AN ALREADY-CONVICTED PROBATIONER OR PAROLEE,
AND IS ENTITLED TO A HIGHER DEGREE OF PROTECTION.  SEE IN RE WINSHIP,
397 U.S. 358 (1970) (THE STANDARD OF PROOF IN A JUVENILE DELINQUENCY
PROCEEDING MUST BE "PROOF BEYOND A REASONABLE DOUBT"). 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I BELIEVE THAT DUE PROCESS REQUIRES THE APPOINTMENT OF COUNSEL IN
THIS CASE BECAUSE OF THE CLAIM THAT RESPONDENT'S CONFESSION OF THE
BURGLARY WAS MADE UNDER DURESS.  SEE MORRISSEY V. BREWER, 408 U.S. 471,
498 (OPINION OF DOUGLAS, J.). 

WILLIAM A. PLATZ, ASSISTANT ATTORNEY GENERAL OF WISCONSIN, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WAS ROBERT W. WARREN,
ATTORNEY GENERAL. 

WILLIAM M. COFFEY, BY APPOINTMENT OF THE COURT, 408 U.S. 921, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :





















MCDONNELL DOUGLAS CORP. V. GREEN, 411 U.S. 792 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 72 - 490.  ARGUED MARCH 28, 1973--DECIDED MAY 14, 1973;

463 F.2D 337, VACATED AND REMANDED. 


    RESPONDENT, BLACK CIVIL RIGHTS ACTIVIST, ENGAGED IN DISRUPTIVE

  AND ILLEGAL ACTIVITY AGAINST PETITIONER AS PART OF HIS PROTEST

  THAT HIS DISCHARGE AS AN EMPLOYEE OF PETITIONER'S AND THE FIRM'S

  GENERAL HIRING PRACTICES WERE RACIALLY MOTIVATED.  WHEN

  PETITIONER, WHO SUBSEQUENTLY ADVERTISED FOR QUALIFIED PERSONNEL,

  REJECTED RESPONDENT'S RE-EMPLOYMENT APPLICATION ON THE GROUND OF

  THE ILLEGAL CONDUCT, RESPONDENT FILED A COMPLAINT WITH THE EQUAL

  EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) CHARGING VIOLATION OF

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.  THE EEOC FOUND THAT

  THERE WAS REASONABLE CAUSE TO BELIEVE THAT PETITIONER'S REJECTION

  OF RESPONDENT VIOLATED ^ 704 (A) OF THE ACT, WHICH FORBIDS

  DISCRIMINATION AGAINST APPLICANTS OR EMPLOYEES FOR ATTEMPTING TO

  PROTEST OR CORRECT ALLEGEDLY DISCRIMINATORY EMPLOYMENT

  CONDITIONS, BUT MADE NO FINDING ON RESPONDNET'S ALLEGATION THAT

  PETITIONER HAD ALSO VIOLATED ^ 703 (A) (1), WHICH PROHIBITS

  DISCRIMINATION IN ANY EMPLOYMENT DECISION.  FOLLOWING

  UNSUCCESSFUL EEOC CONCILIATION EFFORTS, RESPONDENT BROUGHT SUIT

  IN THE DISTRICT COURT, WHICH RULED THAT RESPONDENT'S ILLEGAL

  ACTIVITY WAS NOT PROTECTED BY ^ 704 (A) AND DISMISSED THE ^ 703

(A) (1) CLAIM BECAUSE THE EEOC HAD MAKE NO FINDING WITH RESPECT

  THERETO.  THE COURT OF APPEALS AFFIRMED THE ^ 704 (A) RULING, BUT

  REVERSED WITH RESPECT TO ^ 703 (A) (1), HOLDING THAT AN EEOC

  DETERMINATION OF REASONABLE CAUSE WAS NOT A JURISDICTIONAL

  PREREQUISITE TO CLAIMING A VIOLATION OF THAT PROVISION IN FEDERAL

  COURT.  HELD: 

     1.  A COMPLAINANT'S RIGHT TO BRING SUIT UNDER THE CIVIL RIGHTS

  ACT OF 1964 IS NOT CONFINED TO CHARGES AS TO WHICH THE EEOC HAS

  MADE A REASONABLE-CAUSE FINDING, AND THE DISTRICT COURT'S ERROR

  IN HOLDING TO THE CONTRARY WAS NOT HARMLESS SINCE THE ISSUES

  RAISED WITH RESPECT TO ^ 703 (A) (1) WERE NOT IDENTICAL TO THOSE

  WITH RESPECT TO ^ 704 (A) AND THE DISMISSAL OF THE FORMER CHARGE

  MAY HAVE PREJUDICED RESPONDENT'S EFFORTS AT TRIAL.  PP. 798 -

  800. 

2.  IN A PRIVATE, NON-CLASS-ACTION COMPLAINT UNDER TITLE VII

  CHARGING RACIAL EMPLOYMENT DISCRIMINATION, THE COMPLAINANT HAS

  THE BURDEN OF ESTABLISHING A PRIMA FACIE CASE, WHICH HE CAN

  SATISFY BY SHOWING THAT (I) HE BELONGS TO A RACIAL MINORITY; (II)

  HE APPLIED AND WAS QUALIFIED FOR A JOB THE EMPLOYER WAS TRYING TO

  FILL; (III) THOUGH QUALIFIED, HE WAS REJECTED; AND (IV)

  THEREAFTER THE EMPLOYER CONTINUED TO SEEK APPLICANTS WITH

  COMPLAINANT'S QUALIFICATIONS.  P. 802. 

[[HC793'(ORIGINAL DOCUMENT PAGE 793)' 

     3.  HERE, THE COURT OF APPEALS, THOUGH CORRECTLY HOLDING THAT

  RESPONDENT PROVED A PRIMA FACIE CASE, IN HOLDING THAT PETITIONER

  HAD NOT DISCHARGED ITS BURDEN OF PROOF IN REBUTTAL BY SHOWING

  THAT ITS STATED REASON FOR THE REHIRING REFUSAL WAS BASED ON

  RESPONDNET'S ILLEGAL ACTIVITY.  BUT ON REMAND RESPONDENT MUST BE

  AFFORDED A FAIR OPPORTUNITY OF PROVING THAT PETITIONER'S STATED

  REASON WAS JUST A PRETEXT FOR A RACIALLY DISCRIMINATORY DECISION,

  SUCH AS BY SHOWING THAT WHITES ENGAGING IN SIMILAR ILLEGAL

ACTIVITY WERE RETAINED OR HIRED BY PETITIONER.  OTHER EVIDENCE

  THAT MAY BE RELEVANT, DEPENDING ON THE CIRCUMSTANCES, COULD

  INCLUDE FACTS THAT PETITIONER HAD DISCRIMINATED AGAINST

  RESPONDENT WHEN HE WAS AN EMPLOYEE OR FOLLOWED A DISCRIMINATORY

  POLICY TOWARD MINORITY EMPLOYEES.  PP. 802 - 805. 

     POWELL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE CASE BEFORE US RAISES SIGNIFICANT QUESTIONS AS TO THE PROPER ORDER
AND NATURE OF PROOF IN ACTIONS UNDER TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964, 78 STAT. 253. 

[[HC794'(ORIGINAL DOCUMENT PAGE 794)' 

PETITIONER, MCDONNELL DOUGLAS CORP., IS AN AEROSPACE AND AIRCRAFT
MANUFACTURER HEADQUARTERED IN ST. LOUIS, MISSOURI, WHERE IT EMPLOYS
OVER 30,000 PEOPLE.  RESPONDENT, A BLACK CITIZEN OF ST. LOUIS, WORKED
FOR PETITIONER AS A MECHANIC AND LABORATORY TECHNICIAN FROM 1956 UNTIL
AUGUST 28, 1964 /1/  WHEN HE WAS LAID OFF IN THE COURSE OF A GENERAL
REDUCTION IN PETITIONER'S WORK FORCE. 

RESPONDENT, LONG-TIME ACTIVIST IN THE CIVIL RIGHTS MOVEMENT,
PROTESTED VIGOROUSLY THAT HIS DISCHARGE AND THE GENERAL HIRING
PRACTICES OF PETITIONER WERE RACIALLY MOTIVATED.  /2/  AS PART OF THIS
PROTEST, RESPONDENT AND OTHER MEMBERS OF THE CONGRESS ON RACIAL
EQUALITY ILLEGALLY STALLED THEIR CARS ON THE MAIN ROADS LEADING TO
PETITIONER'S PLANT FOR THE PURPOSE OF BLOCKING ACCESS TO IT AT THE TIME
OF THE MORNING SHIFT CHANGE.  THE DISTRICT JUDGE DESCRIBED THE PLAN
FOR, AND RESPONDENT'S PARTICIPATION IN, THE "STALL-IN" AS FOLLOWS: 

"(FIVE TEAMS, EACH CONSISTING OF FOUR CARS WOULD 'TIE UP' FIVE MAIN
ACCESS ROADS INTO MCDONNELL AT THE TIME OF THE MORNING RUSH HOUR.  THE
DRIVERS OF THE CARS WERE INSTRUCTED TO LINE UP NEXT TO EACH OTHER
COMPLETELY BLOCKING THE INTERSECTIONS OR ROADS.  THE DRIVERS WERE ALSO
INSTRUCTED TO STOP THEIR CARS, TURN OFF THE ENGINES, PULL THE EMERGENCY
BRAKE, RAISE ALL WINDOWS, LOCK THE DOORS, AND REMAIN IN THEIR CARS
UNTIL THE POLICE ARRIVED.  THE PLAN WAS TO HAVE THE CARS REMAIN IN
POSITION FOR ONE HOUR. 

[[HC795'(ORIGINAL DOCUMENT PAGE 795)' 

     "ACTING UNDER THE 'STALL IN' PLAN, PLAINTIFF (RESPONDENT IN
THE

 PRESENT ACTION) DROVE HIS CAR ONTO BROWN ROAD, A MCDONNELL ACCESS

  ROAD, AT APPROXIMATELY 7:00 A.M., AT THE START OF THE MORNING

  RUSH HOUR.  PLAINTIFF WAS AWARE OF THE TRAFFIC PROBLEMS THAT

  WOULD RESULT.  HE STOPPED HIS CAR WITH THE INTENT TO BLOCK

  TRAFFIC.  THE POLICE ARRIVED SHORTLY AND REQUESTED PLAINTIFF TO

  MOVE HIS CAR.  HE REFUSED TO MOVE HIS CAR VOLUNTARILY. 

  PLAINTIFF'S CAR WAS TOWED AWAY BY THE POLICE, AND HE WAS ARRESTED

  FOR OBSTRUCTING TRAFFIC.  PLAINTIFF PLEADED GUILTY TO THE CHARGE

  OF OBSTRUCTING TRAFFIC AND WAS FINED."  318 F.SUPP.  846, 849. 

ON JULY 2, 1965, A "LOCK-IN" TOOK PLACE WHEREIN A CHAIN AND PADLOCK
WERE PLACED ON THE FRONT DOOR OF A BUILDING TO PREVENT THE OCCUPANTS,
CERTAIN OF PETITIONER'S EMPLOYEES, FROM LEAVING.  THOUGH RESPONDENT
APPARENTLY KNEW BEFOREHAND OF THE "LOCK-IN," THE FULL EXTENT OF HIS
INVOLVEMENT REMAINS UNCERTAIN.  /3/ 

[[HC796'(ORIGINAL DOCUMENT PAGE 796)' 

SOME THREE WEEKS FOLLOWING THE "LOCK-IN," ON JULY 25, 1965,
PETITIONER PUBLICLY ADVERTISED FOR QUALIFIED MECHANICS, RESPONDENT'S
TRADE, AND RESPONDENT PROMPTLY APPLIED FOR RE-EMPLOYMENT.  PETITIONER
TURNED DOWN RESPONDENT, BASING ITS REJECTION ON RESPONDENT'S
PARTICIPATION IN THE "STALL-IN" AND "LOCK-IN".  SHORTLY THEREAFTER,
RESPONDENT FILED A FORMAL COMPLAINT WITH THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, CLAIMING THAT PETITIONER HAD REFUSED TO REHIRE
HIM BECAUSE OF HIS RACE AND PERSISTENT INVOLVEMENT IN THE CIVIL RIGHTS
MOVEMENT, IN VIOLATION OF ^^ 703 (A) (1) AND 704 (A) OF THE CIVIL
RIGHTS ACT OF 1964, 42 U.S.C. ^^ 2000E - 2 (A) (1) AND 2000E - 3 (A). 
/4/  THE FORMER SECTION GENERALLY PROHIBITS RACIAL DISCRIMINATION IN
ANY EMPLOYMENT DECISION WHILE THE LATTER FORBIDS DISCRIMINATION AGAINST
APPLICANTS OR EMPLOYEES FOR ATTEMPTING TO PROTEST OR CORRECT ALLEGEDLY
DISCRIMINATORY CONDITIONS OF EMPLOYMENT. 

[[HC797'(ORIGINAL DOCUMENT PAGE 797)' 

THE COMMISSION MADE NO FINDING ON RESPONDENT'S ALLEGATION OF RACIAL
BIAS UNDER ^ 703 (A) (1), BUT IT DID FIND REASONABLE CAUSE TO BELIEVE
PETITIONER HAD VIOLATED ^ 704 (A) BY REFUSING TO REHIRE RESPONDENT
BECAUSE OF HIS CIVIL RIGHTS ACTIVITY.  AFTER THE COMMISSION
UNSUCCESSFULLY ATTEMPTED TO CONCILIATE THE DISPUTE, IT ADVISED
RESPONDENT IN MARCH 1968, OF HIS RIGHT TO INSTITUTE A CIVIL ACTION IN
FEDERAL COURT WITHIN 30 DAYS. 

ON APRIL 15, 1968, RESPONDENT BROUGHT THE PRESENT ACTION, CLAIMING
INITIALLY A VIOLATION OF ^ 704 (A) AND, IN AN AMENDED COMPLAINT, A
VIOLATION OF ^ 703 (A) (1) AS WELL.  /5/  THE DISTRICT COURT DISMISSED
THE LATTER CLAIM OF RACIAL DISCRIMINATION IN PETITIONER'S HIRING
PROCEDURES ON THE GROUND THAT THE COMMISSION HAD FAILED TO MAKE A
DETERMINATION OF REASONABLE CAUSE TO BELIEVE THAT A VIOLATION OF THAT
PETITIONER'S REFUSAL TO REHIRE RESPONDENT WAS BASED SOLELY ON HIS
PARTICIPATION IN THE ILLEGAL DEMONSTRATIONS AND NOT ON HIS LEGITIMATE
CIVIL RIGHTS ACTIVITIES.  THE COURT CONCLUDED THAT NOTHING IN TITLE VII
OF ^ 704 PROTECTED "SUCH ACTIVITY AS EMPLOYED BY THE PLAINTIFF IN THE
'STALL IN' AND 'LOCK IN'  DEMONSTRATIONS."  318 F.SUPP., AT 850. 

ON APPEAL, THE EIGHTH CIRCUIT AFFIRMED THAT UNLAWFUL PROTESTS WERE
NOT PROTECTED ACTIVITIES UNDER ^ 704 (A), /6/  BUT REVERSED THE
DISMISSAL OF RESPONDENT'S ^ 703 (A) (1) CLAIM RELATING TO RACIALLY
DISCRIMINATORY HIRING PRACTICES, HOLDING THAT A PRIOR COMMISSION
DETERMINATION OF REASONABLE CAUSE WAS NOT A JURISDICTIONAL PREREQUISITE
TO RAISING A CLAIM UNDER THAT SECTION IN FEDERAL COURT.  THE COURT
ORDERED THE CASE REMANDED FOR TRIAL OF RESPONDENT'S CLAIM UNDER ^ 703
(A) (1). 

[[HC798'(ORIGINAL DOCUMENT PAGE 798)' 

IN REMANDING, THE COURT OF APPEALS ATTEMPTED TO SET FORTH STANDARDS
TO GOVERN THE CONSIDERATION OF RESPONDENT'S CLAIM.  THE MAJORITY NOTED
THAT RESPONDENT HAD ESTABLISHED A PRIMA FACIE CASE OF RACIAL
DISCRIMINATION; THAT PETITIONER'S REFUSAL TO REHIRE RESPONDENT RESTED
ON "SUBJECTIVE" CRITERIA WHICH CARRIED LITTLE WEIGHT IN REBUTTING
CHARGES OF DISCRIMINATION; THAT, THOUGH RESPONDENT'S PARTICIPATION IN
THE UNLAWFUL DEMONSTRATIONS MIGHT INDICATE A LACK OF A RESPONSIBLE
ATTITUDE TOWARD PERFORMING WORK FOR THAT EMPLOYER, RESPONDENT SHOULD BE
GIVEN THE OPPORTUNITY TO DEMONSTRATE THAT PETITIONER'S REASONS FOR
REFUSING TO REHIRE HIM WERE MERE PRETEXT.  /7/  IN ORDER TO CLARIFY THE
STANDARDS GOVERNING THE DISPOSITION OF AN ACTION CHALLENGING EMPLOYMENT
DISCRIMINATION, WE GRANTED CERTIORARI, 409 U.S. 1036 (1972). 

        I 

WE AGREE WITH THE COURT OF APPEALS THAT ABSENCE OF A COMMISSION
FINDING OF REASONABLE CAUSE CANNOT BAR SUIT UNDER AN APPROPRIATE
RESPONDENT'S CLAIM OF RACIAL DISCRIMINATION UNDER ^ 703 (A) (1). 
RESPONDENT SATISFIED THE JURISDICTIONAL PREREQUISITES TO A FEDERAL
ACTION (I) BY FILING TIMELY CHARGES OF EMPLOYMENT DISCRIMINATION WITH
THE COMMISSION AND (II) BY RECEIVING AND ACTING UPON THE COMMISSION'S
STATUTORY NOTICE OF THE RIGHT TO SUE, 42 U.S.C. ^^ 20003 - 5 (A) AND
20003 - 5 (E).  THE ACT DOES NOT RESTRICT A COMPAINANT'S RIGHT TO SUE
TO THOSE CHARGES AS TO WHICH THE COMMISSION HAS MADE FINDINGS OF
REASONABLE CAUSE, AND WE WILL NOT ENGRAFT ON THE STATUTE A REQUIREMENT
WHICH MAY INHIBIT THE REVIEW OF CLAIMS OF EMPLOYMENT DISCRIMINATION IN
THE FEDERAL COURTS. 

[[HC799'(ORIGINAL DOCUMENT PAGE 799)'  THE COMMISSION ITSELF DOES
NOT CONSIDER THE ABSENCE OF A "REASONABLE CAUSE" DETERMINATION AS
PROVIDING EMPLOYER IMMUNITY FROM SIMILAR CHARGES IN A FEDERAL COURT, 29
CFR ^ 1601.30, AND THE COURTS OF APPEAL HAVE HELD THAT, IN VIEW OF THE
LARGE VOLUME OF COMPLAINTS BEFORE THE COMMISSION AND THE NONADVERSARY
CHARACTER OF MANY OF ITS PROCEEDINGS, "COURT ACTIONS UNDER TITLE VII
ARE DE NOVO PROCEEDINGS AND . . . A COMMISSION 'NO REASONABLE CAUSE'
FINDING DOES NOT BAR A LAWSUIT IN THE CASE."  ROBINSON V. LORILLARD
CORP., 444 F.2D 791, 800 (CA4 1971); BEVERLY V. LONE STAR LEAD
CONSTRUCTION CORP., 437 F.2D 1136 (CA5 1971); FLOWERS V. LOCAL 6,
LABORERS INTERNATIONAL UNION OF NORTH AMERICA, 431 F.2D 205 (CA7 1970);
FEKETE V. U.S. STEEL CORP., 424 F.2D 331 (CA3 1970). 

PETITIONER ARGUES, AS IT DID BELOW, THAT RESPONDENT SUSTAINED NO
PREJUDICE FROM THE TRIAL COURT'S ERRONEOUS RULING BECAUSE IN FACT THE
ISSUE OF RACIAL DISCRIMINATION IN THE REFUSAL TO RE-EMPLOY "WAS TRIED
THOROUGHLY" IN A TRIAL LASTING FOUR DAYS WITH "AT LEAST 80%" OF THE
QUESTIONS RELATING TO THE ISSUE OF "RACE."  /8/  PETITIONER, THEREFORE,
REQUESTS THAT THE JUDGMENT BELOW BE VACATED AND THE CAUSE REMANDED WITH
INSTRUCTIONS THAT THE JUDGMENT OF THE DISTRICT COURT BE AFFIRMED.  /9/
WE CANNOT AGREE THAT THE DISMISSAL OF RESPONDENT'S ^ 703 (A) (1) CLAIM
WAS HARMLESS ERROR.  IT IS NOT CLEAR THAT THE DISTRICT COURT'S FINDINGS
AS TO RESPONDENT'S ^ 704 (A) CONTENTIONS INVOLVED THE IDENTICAL ISSUES
RAISED BY HIS CLAIM UNDER ^ 703 (A) (1).  THE FORMER SECTION RELATES
SOLELY TO DISCRIMINATION AGAINST AN APPLICANT OR EMPLOYEE ON ACCOUNT OF
HIS PARTICIPATION IN LEGITIMATE CIVIL RIGHTS ACTIVITIES OR PROTESTS,
WHILE THE LATTER SECTION DEALS WITH THE BROADER AND CENTRALLY IMPORTANT
QUESTION UNDER THE ACT OF WHETHER, FOR ANY REASON, A RACIALLY
DISCRIMINATORY EMPLOYMENT DECISION HAS BEEN MADE. 

[[HC800'(ORIGINAL DOCUMENT PAGE 800)'  MOREOVER, RESPONDENT SHOULD
HAVE BEEN ACCORDED THE RIGHT TO PREPARE HIS CASE AND PLAN THE STRATEGY
OF TRIAL WITH THE KNOWLEDGE THAT THE ^ 703 (A) (1) CAUSE OF ACTION WAS
PROPERLY BEFORE THE DISTRICT COURT.  /10/  ACCORDINGLY, WE REMAND THE
CASE FOR TRIAL OF RESPONDENT'S CLAIM OF RACIAL DISCRIMINATION
CONSISTENT WITH THE VIEWS SET FORTH BELOW. 

        II 

THE CRITICAL ISSUE BEFORE US CONCERNS THE ORDER AND ALLOCATION OF
PROOF IN A PRIVATE, NON-CLASS ACTION CHALLENGING EMPLOYMENT
DISCRIMINATION.  THE LANGUAGE OF TITLE VII MAKES PLAIN THE PURPOSE OF
CONGRESS TO ASSURE EQUALITY OF EMPLOYMENT OPPORTUNITIES AND TO
ELIMINATE THOSE DISCRIMINATORY PRACTICES AND DEVICES WHICH HAVE
FOSTERED RACIALLY STRATIFIED JOB ENVIRONMENTS TO THE DISADVANTAGE OF
MINORITY CITIZENS.  GRIGGS V. DUKE POWER CO., 401 U.S. 424, 429 (1971);
CASTRO V. BEECHER, 459 F.2D 725 (CA1 1972); CHANCE V. BOARD OF
EXAMINERS, 458 F.2D 1167 (CA2 1972); QUARLES V. PHILIP MORRIS, INC.,
279 F.SUPP.  505 (ED VA. 1968).  AS NOTED IN GRIGGS, SUPRA: 

"CONGRESS DID NOT INTEND BY TITLE VII, HOWEVER, TO GUARANTEE A JOB
TO EVERY PERSON REGARDLESS OF QUALIFICATIONS.  IN SHORT, THE ACT DOES
NOT COMMAND THAT ANY PERSON BE HIRED SIMPLY BECAUSE HE WAS FORMERLY THE
SUBJECT OF DISCRIMINATION, OR BECAUSE HE IS A MEMBER OF A MINORITY
GROUP.  DISCRIMINATORY PREFERENCE FOR ANY GROUP, MINORITY OR MAJORITY,
IS PRECISELY AND ONLY WHAT CONGRESS HAS PROSCRIBED. 

[[HC801'(ORIGINAL DOCUMENT PAGE 801)'

  WHAT IS REQUIRED BY CONGRESS IS THE REMOVAL OF ARTIFICIAL,
ARBITRARY, AND UNNECESSARY BARRIERS

TO EMPLOYMENT WHEN THE BARRIERS OPERATE INVIDIOUSLY TO DISCRIMINATE ON
THE BASIS OF RACIAL

  OR OTHER IMPERMISSIBLE CLASSIFICATION."  ID., AT 430 - 431. 

THERE ARE SOCIETAL AS WELL AS PERSONAL INTERESTS ON BOTH SIDES OF
THIS EQUATION.  THE BROAD, OVERRIDING INTEREST, SHARED BY EMPLOYER,
EMPLOYEE, AND CONSUMER, IS EFFICIENT AND TRUSTWORTHY WORKMANSHIP
ASSURED THROUGH FAIR AND RACIALLY NEUTRAL EMPLOYMENT AND PERSONNEL
DECISIONS.  IN THE IMPLEMENTATION OF SUCH DECISIONS, IT IS ABUNDANTLY
CLEAR THAT TITLE VII TOLERATES NO RACIAL DISCRIMINATION, SUBTLE OR
OTHERWISE. 

IN THIS CASE RESPONDENT, THE COMPLAINANT BELOW, CHARGES THAT HE WAS
DENIED EMPLOYMENT "BECAUSE OF HIS INVOLVEMENT IN CIVIL RIGHTS
ACTIVITIES" AND "BECAUSE OF HIS RACE AND COLOR."  /11/  PETITIONER
DENIED DISCRIMINATION OF ANY KIND, ASSERTING THAT ITS FAILURE TO RE
EMPLOY RESPONDENT WAS BASED UPON AND JUSTIFIED BY HIS PARTICIPATION IN
THE UNLAWFUL CONDUCT AGAINST IT.  THUS, THE ISSUE AT THE TRIAL ON
REMAND IS FRAMED BY THOSE OPPOSING FACTUAL CONTENTIONS.  THE TWO
OPINIONS OF THE COURT OF APPEALS AND THE SEVERAL OPINIONS OF THE THREE
JUDGES OF THAT COURT ATTEMPTED, WITH A NOTABLE LACK OF HARMONY, TO
STATE THE APPLICABLE RULES AS TO BURDEN OF PROOF AND HOW THIS SHIFTS
UPON THE MAKING OF A PRIMA FACIE CASE.  /12/  WE NOW ADDRESS THIS
PROBLEM. 

[[HC802'(ORIGINAL DOCUMENT PAGE 802)' 

THE COMPLAINANT IN A TITLE VII TRIAL MUST CARRY THE INITIAL BURDEN
UNDER THE STATUTE OF ESTABLISHING A PRIMA FACIE CASE OF RACIAL
DISCRIMINATION.  THIS MAY BE DONE BY SHOWING (I) THAT HE BELONGS TO A
RACIAL MINORITY; (II) THAT HE APPLIED AND WAS QUALIFIED FOR A JOB FOR
WHICH THE EMPLOYER WAS SEEKING APPLICANTS; (III) THAT, DESPITE HIS
QUALIFICATIONS, HE WAS REJECTED; AND (IV) THAT, AFTER HIS REJECTION,
THE POSITION REMAINED OPEN AND THE EMPLOYER CONTINUED TO SEEK
APPLICANTS FROM PERSONS OF COMPAINANT'S QUALIFICATIONS.  /13/  IN THE
INSTANT CASE, WE AGREE WITH THE COURT OF APPEALS THAT RESPONDENT PROVED
A PRIMA FACIE CASE.  463 F.2D 337, 353.  PETITIONER SOUGHT MECHANICS,
RESPONDENT'S TRADE, AND CONTINUED TO DO SO AFTER RESPONDENT'S
REJECTION.  PETITIONER, MOREOVER, DOES NOT DISPUTE RESPONDENT'S
QUALIFICATIONS /14/  AND ACKNOWLEDGES THAT HIS PAST WORK PERFORMANCE IN
PETITIONER'S EMPLOY WAS "SATISFACTORY."  /15/ 

THE BURDEN THEN MUST SHIFT TO THE EMPLOYER TO ARTICULATE SOME
LEGITIMATE, NONDISCRIMINATORY REASON FOR THE EMPLOYEE'S REJECTION.  WE
NEED NOT ATTEMPT IN THE INSTANT CASE TO DETAIL EVERY MATTER WHICH
FAIRLY COULD BE RECOGNIZED AS A REASONABLE BASIS FOR A REFUSAL TO
HIRE.     [[HC803'(ORIGINAL DOCUMENT PAGE 803)'  HERE PETITIONER HAS
ASSIGNED RESPONDENT'S PARTICIPATION IN UNLAWFUL CONDUCT AGAINST IT AS
THE CAUSE FOR HIS REJECTION.  WE THINK THAT THIS SUFFICES TO DISCHARGE
PETITIONER'S BURDEN OF PROOF AT THIS STAGE AND TO MEET RESPONDENT'S
PRIMA FACIE CASE OF DISCRIMINATION. 

THE COURT OF APPEALS INTIMATED, HOWEVER, THAT PETITIONER'S STATED
REASON FOR REFUSING TO REHIRE RESPONDENT WAS A "SUBJECTIVE" RATHER THAN
OBJECTIVE CRITERION WHICH "CARRIES) LITTLE WEIGHT IN REBUTTING CHARGES
OF DISCRIMINATION," 463 F.2D, AT 352.  THIS WAS AMONG THE STATEMENTS
WHICH CAUSED THE DISSENTING JUDGE TO READ THE OPINION AS TAKING "THE
POSITION THAT SUCH UNLAWFUL ACTS AS GREEN COMMITTED AGAINST MCDONNELL
WOULD NOT LEGALLY ENTITLE MCDONNELL TO REFUSE TO HIRE HIM, EVEN THOUGH
NO RACIAL MOTIVATION WAS INVOLVED.  . . ."  ID., AT 355.  REGARDLESS OF
WHETHER THIS WAS THE INTENDED IMPORT OF THE OPINION, WE THINK THE COURT
BELOW SERIOUSLY UNDERESTIMATED THE REBUTTAL WEIGHT TO WHICH
PETITIONER'S REASONS WERE ENTITLED.  RESPONDENT ADMITTEDLY HAD TAKEN
PART IN A CAREFULLY PLANNED "STALL-IN," DESIGNED TO TIE UP ACCESS TO
AND EGRESS FROM PETITIONER'S PLANT AT A PEAK TRAFFIC HOUR.  /16/
NOTHING IN THE TITLE VII COMPELS AN EMPLOYER TO ABSOLVE AND REHIRE ONE
WHO HAS ENGAGED IN SUCH DELIBERATE, UNLAWFUL ACTIVITY AGAINST IT.  /17/
IN UPHOLDING, UNDER THE NATIONAL LABOR RELATIONS ACT, THE DISCHARGE OF
EMPLOYEES WHO HAD SEIZED AND FORCIBLY RETAINED AN EMPLOYER'S FACTORY
BUILDINGS IN AN ILLEGAL SIT-DOWN STRIKE, THE COURT NOTED PERTINENTLY: 

"WE ARE UNABLE TO CONCLUDE THAT CONGRESS INTENDED TO COMPEL
EMPLOYERS TO RETAIN PERSONS IN THEIR EMPLOY REGARDLESS OF THEIR
UNLAWFUL CONDUCT,--TO INVEST THOSE WHO GO ON STRIKE WITH AN IMMUNITY
FROM DISCHARGE FOR ACTS OF TRESPASS OR VIOLENCE AGAINST THE EMPLOYER'S
PROPERTY.  . . . APART FROM THE QUESTION OF THE CONSTITUTIONAL VALIDITY
OF AN ENACTMENT OF THAT SORT, IT IS ENOUGH TO SAY THAT SUCH A
LEGISLATIVE INTENTION SHOULD BE FOUND IN SOME DEFINITE AND UNMISTAKABLE
EXPRESSION."  NLRB V. FANSTEEL CORP., 306 U.S. 240, 255 (1939). 

[[HC804'(ORIGINAL DOCUMENT PAGE 804)' 

PETITIONER'S REASON FOR REJECTION THUS SUFFICES TO MEET THE PRIMA
FACIE CASE, BUT THE INQUIRY MUST NOT END HERE.  WHILE TITLE VII DOES
NOT, WITHOUT MORE, COMPEL REHIRING OF RESPONDENT, NEITHER DOES IT
PERMIT PETITIONER TO USE RESPONDENT'S CONDUCT AS A PRETEXT FOR THE SORT
OF DISCRIMINATION PROHIBITED BY ^ 703 (A) (1).  ON REMAND, RESPONDENT
MUST, AS THE COURT OF APPEALS RECOGNIZED, BE AFFORDED A FAIR
OPPORTUNITY TO SHOW THAT PETITIONER'S STATED REASON FOR RESPONDENT'S
REJECTION WAS IN FACT PRETEXT.  ESPECIALLY RELEVANT TO SUCH A SHOWING
WOULD BE EVIDENCE THAT WHITE EMPLOYEES INVOLVED IN ACTS AGAINST
PETITIONER OF COMPARABLE SERIOUSNESS TO THE "STALL-IN" WERE
NEVERTHELESS RETAINED OR REHIRED.  PETITIONER MAY JUSTIFIABLY REFUSE TO
REHIRE ONE WHO WAS ENGAGED IN UNLAWFUL, DISRUPTIVE ACTS AGAINST IT, BUT
ONLY IF THIS CRITERION IS APPLIED ALIKE TO MEMBERS OF ALL RACES. 

OTHER EVIDENCE THAT MAY BE RELEVANT TO ANY SHOWING OF PRETEXT
INCLUDES FACTS AS TO THE PETITIONER'S TREATMENT OF RESPONDENT DURING
HIS PRIOR TERM OF EMPLOYMENT; PETITIONER'S REACTION, IF ANY, TO
RESPONDENT'S LEGITIMATE CIVIL RIGHTS ACTIVITIES; AND PETITIONER'S
GENERAL POLICY AND PRACTICE WITH RESPECT TO MINORITY EMPLOYMENT.  /18/ 

[[HC805'(ORIGINAL DOCUMENT PAGE 805)'  ON THE LATTER POINT,
STATISTICS AS TO PETITIONER'S EMPLOYMENT POLICY AND PRACTICE MAY BE
HELPFUL TO A DETERMINATION OF WHETHER PETITIONER'S REFUSAL TO REHIRE
RESPONDENT IN THIS CASE CONFORMED TO A GENERAL PATTERN OF
DISCRIMINATION AGAINST BLACKS.  JONES V. LEE WAY MOTOR FREIGHT, INC.,
431 F.2D 245 (CA10 1970); BLUMROSEN, STRANGERS IN PARADISE:  GRIGGS V.
DUKE POWER CO., AND THE CONCEPT OF EMPLOYMENT DISCRIMINATION, 71 MICH.
L. REV. 59, 91 - 94 (1972).  /19/  IN SHORT, ON THE RETRIAL RESPONDENT
MUST BE GIVEN A FULL AND FAIR OPPORTUNITY TO DEMONSTRATE BY COMPETENT
EVIDENCE THAT THE PRESUMPTIVELY VALID REASONS FOR HIS REJECTION WERE IN
FACT A COVERUP FOR A RACIALLY DISCRIMINATORY DECISION. 

THE COURT BELOW APPEARED TO RELY UPON GRIGGS V. DUKE POWER CO.,
SUPRA, IN WHICH THE COURT STATED:  "IF AN EMPLOYMENT PRACTICE WHICH
OPERATES TO EXCLUDE NEGROES CANNOT BE SHOWN TO RELATED TO JOB
PERFORMANCE, THE PRACTICE IS PROHIBITED." 

[[HC806'(ORIGINAL DOCUMENT PAGE 806)'  401 U.S., AT 431.  /20/  BUT
GRIGGS DIFFERS FROM THE INSTANT CASE IN IMPORTANT RESPECTS.  IT DEALT
WITH STANDARDIZED TESTING DEVICES WHICH, HOWEVER NEUTRAL ON THEIR FACE,
OPERATED TO EXCLUDE MANY BLACKS WHO WERE CAPABLE OF PERFORMING
EFFECTIVELY IN THE DESIRED POSITIONS.  GRIGGS WAS RIGHTLY CONCERNED
THAT CHILDHOOD DEFICIENCIES IN THE EDUCATION AND BACKGROUND OF MINORITY
CITIZENS, RESULTING FROM FORCES BEYOND THEIR CONTROL, NOT BE ALLOWED TO
WORK A CUMULATIVE AND INVIDIOUS BURDEN ON SUCH CITIZENS FOR THE
REMAINDER OF THEIR LIVES.  ID., AT 430.  RESPONDENT, HOWEVER, APPEARS
IN DIFFERENT CLOTHING.  HE HAD ENGAGED IN A SERIOUSLY DISRUPTIVE ACT
AGAINST THE VERY ONE FROM WHOM HE NOW SEEKS EMPLOYMENT.  AND PETITIONER
DOES NOT SEEK HIS EXCLUSION ON THE BASIS OF A TESTING DEVICE WHICH
OVERSTATES WHAT IS NECESSARY FOR COMPETENT PERFORMANCE, OR THROUGH SOME
SWEEPING DISQUALIFICATION OF ALL THOSE WITH ANY PAST RECORD OF UNLAWFUL
BEHAVIOR, HOWEVER REMOTE, INSUBSTANTIAL, OR UNRELATED TO APPLICANT'S
PERSONAL QUALIFICATIONS AS AN EMPLOYEE.  PETITIONER ASSERTEDLY REJECTED
RESPONDENT FOR UNLAWFUL CONDUCT AGAINST IT AND, IN THE ABSENCE OF PROOF
OF PRETEXT OR DISCRIMINATORY APPLICATION OF SUCH A REASON, THIS CANNOT
BE THOUGHT THE KIND OF "ARTIFICIAL, ARBITRARY, AND UNNECESSARY BARRIERS
TO EMPLOYMENT" WHICH THE COURT FOUND TO BE THE INTENTION OF CONGRESS TO
REMOVE.  ID., AT 431.  /21/ 

[[HC807'(ORIGINAL DOCUMENT PAGE 807)'

        III 

IN SUM, RESPONDENT SHOULD HAVE BEEN ALLOWED TO PURSUE HIS CLAIM
UNDER ^ 703 (A) (1).  IF THE EVIDENCE ON RETRIAL IS SUBSTANTIALLY IN
ACCORD WITH THAT BEFORE US IN THIS CASE, WE THINK THAT RESPONDENT
CARRIED HIS BURDEN OF ESTABLISHING A PRIMA FACIE CASE OF RACIAL
DISCRIMINATION AND THAT PETITIONER SUCCESSFULLY REBUTTED THAT CASE. 
BUT THIS DOES NOT END THE MATTER.  ON RETRIAL, RESPONDENT MUST BE
AFFORDED A FAIR OPPORTUNITY TO DEMONSTRATE THAT PETITIONER'S ASSIGNED
REASON FOR REFUSING TO RE-EMPLOY WAS A PRETEXT OF DISCRIMINATORY IN ITS
APPLICATION.  IF THE DISTRICT JUDGE SO FINDS, HE MUST ORDER A PROMPT
AND APPROPRIATE REMEDY.  IN THE ABSENCE OF SUCH A FINDING, PETITIONER'S
REFUSAL TO REHIRE MUST STAND. 

THE JUDGMENT IS VACATED AND THE CAUSE IS HEREBY REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/  HIS EMPLOYMENT DURING THESE YEARS WAS CONTINUOUS EXCEPT FOR 21
MONTHS OF SERVICE IN THE MILITARY. 

/2/  THE COURT OF APPEALS NOTED THAT RESPONDENT THEN "FILED FORMAL
COMPLAINTS OF DISCRIMINATION WITH THE PRESIDENT'S COMMISSION ON CIVIL
RIGHTS, THE JUSTICE DEPARTMENT, THE DEPARTMENT OF THE NAVY, THE DEFENSE
DEPARTMENT, AND THE MISSOURI COMMISSION ON HUMAN RIGHTS."  463 F.2D
337, 339 (1972). 

/3/  THE "LOCK-IN" OCCURRED DURING A PICKETING DEMONSTRATION BY
ACTION, A CIVIL RIGHTS ORGANIZATION, AT THE ENTRANCE TO A DOWNTOWN
OFFICE BUILDING WHICH HOUSED A PART OF PETITIONER'S OFFICES AND IN
WHICH CERTAIN OF PETITIONER'S EMPLOYEES WERE WORKING AT THE TIME.  A
CHAIN AND PADLOCK WERE PLACED ON THE FRONT DOOR OF THE BUILDING TO
PREVENT INGRESS AND EGRESS.  ALTHOUGH RESPONDENT ACKNOWLEDGES THAT HE
WAS CHAIRMAN OF ACTION AT THE TIME, THAT THE DEMONSTRATION WAS PLANNED
AND STAGED BY HIS GROUP, THAT HE PARTICIPATED IN AND INDEED WAS IN
CHARGE OF THE PICKET LINE OF FRONT OF THE BUILDING, THAT HE WAS TOLD IN
ADVANCE BY A MEMBER OF ACTION "THAT HE WAS PLANNING TO CHAIN THE FRONT
DOOR," AND THE "APPROVED OF" CHAINING THE DOOR, THERE IS NO EVIDENCE
THAT RESPONDENT PERSONALLY TOOK PART IN THE ACTUAL "LOCK-IN," AND HE
WAS NOT ARRESTED.  APP. 132 - 133. 

THE COURT OF APPEALS MAJORITY, HOWEVER, FOUND THAT THE RECORD DID
"NOT SUPPORT THE TRIAL COURT'S CONCLUSION THAT GREEN 'ACTIVELY
COOPERATED' IN CHAINING THE DOORS OF THE DOWNTOWN ST. LOUIS BUILDING
DURING THE 'LOCK-IN' DEMONSTRATION."  463 F.2D, AT 341.  SEE ALSO
CONCURRING OPINION OF JUDGE LAY.  ID., AT 345.  JUDGE JOHNSEN, IN
DISSENT, AGREED WITH THE DISTRICT COURT THAT THE "CHAINING AND
PADLOCKING (WERE) CARRIED OUT AS PLANNED, (AND THAT) GREEN HAD IN FACT
GIVEN IT . . . APPROVAL AND AUTHORIZATION."  ID., AT 348. 

IN VIEW OF RESPONDENT'S ADMITTED PARTICIPATION IN THE UNLAWFUL
"STALL-IN," WE FIND IT UNNECESSARY TO RESOLVE THE CONTRADICTORY
CONTENTIONS SURROUNDING THIS "LOCK-IN." 

/4/  SECTION 703 (A) (1) OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. ^
2000E - 2 (A) (1), IN PERTINENT PART PROVIDES: 

"IT SHALL BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER . . .
TO FAIL OR REFUSE TO HIRE OR TO DISCHARGE ANY INDIVIDUAL, OR OTHERWISE
TO DISCRIMINATE AGAINST ANY INDIVIDUAL WITH RESPECT TO HIS
COMPENSATION, TERMS, CONDITIONS, OR PRIVILEGES OF EMPLOYMENT, BECAUSE
OF SUCH INDIVIDUAL'S RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN.  .
. ." 

3 (A), IN PERTINENT PART PROVIDES: 

"IT SHALL BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER TO
DISCRIMINATE AGAINST ANY OF HIS EMPLOYEES OR APPLICANTS FOR EMPLOYMENT
. . . BECAUSE HE HAS OPPOSED ANY PRACTICE MADE AN UNLAWFUL EMPLOYMENT
PRACTICE BY THIS SUBCHAPTER.  . . ." 

/5/  RESPONDENT ALSO CONTESTED THE LEGALITY OF HIS 1964 DISCHARGE BY
PETITIONER, BUT BOTH COURTS HELD THIS CLAIM BARRED BY THE STATUTE OF
LIMITATIONS.  RESPONDENT DOES NOT CHALLENGE THOSE RULINGS HERE. 

/6/  RESPONDENT HAS NOT SOUGHT REVIEW OF THIS ISSUE. 

/7/  ALL REFERENCES HERE ARE TO PART V OF THE REVISED OPINION OF THE
COURT OF APPEALS, 463 F.2D, AT 352, WHICH SUPERSEDED PART V OF THE
COURT'S INITIAL OPINION WITH RESPECT TO THE ORDER AND NATURE OF PROOF. 

/8/  TR. OF ORAL ARG. 11. 

/9/  BRIEF FOR PETITIONER 40. 

/10/  THE TRIAL COURT DID NOT DISCUSS RESPONDENT'S ^ 703 (A) (1)
CLAIM IN ITS OPINION AND DENIED REQUESTS FOR DISCOVERY OF STATISTICAL
MATERIALS WHICH MAY HAVE BEEN RELEVANT TO THAT CLAIM. 

/11/  THE RESPONDENT INITIALLY CHARGED PETITIONER IN HIS COMPLAINT
FILED APRIL 15, 1968, WITH DISCRIMINATION BECAUSE OF HIS "INVOLVEMENT
IN CIVIL RIGHTS ACTIVITIES."  APP. 8.  IN HIS AMENDED COMPLAINT, FILED
MARCH 20, 1969, PLAINTIFF BROADENED HIS CHARGE TO INCLUDE DENIAL OF
EMPLOYMENT BECAUSE OF RACE IN VIOLATION OF ^ 703 (A) (1).  APP. 27. 

/12/  SEE ORIGINAL OPINION OF THE MAJORITY OF THE PANEL WHICH HEARD
THE CASE, 463 F.2D, AT 338; THE CONCURRING OPINION OF JUDGE LAY, ID.,
AT 344; THE FIRST OPINION OF JUDGE JOHNSEN, DISSENTING IN PART, ID., AT
346; THE REVISED OPINION OF THE MAJORITY, ID., AT 352; AND THE
SUPPLEMENTAL DISSENT OF JUDGE JOHNSEN, ID., AT 353.  A PETITION FOR
REHEARING EN BANC WAS DENIED BY AN EVENLY DIVIDED COURT OF APPEALS. 

/13/  THE FACTS NECESSARILY WILL VARY IN TITLE VII CASES, AND THE
SPECIFICATION ABOVE OF THE PRIMA FACIE PROOF REQUIRED FROM RESPONDENT
IS NOT NECESSARILY APPLICABLE IN EVERY RESPECT TO DIFFERING FACTUAL
SITUATIONS. 

/14/  WE NOTE THAT THE ISSUE OF WHAT MAY PROPERLY BE USED TO TEST
QUALIFICATIONS FOR EMPLOYMENT IS NOT PRESENT IN THIS CASE.  WHERE
EMPLOYERS HAVE INSTITUTED EMPLOYMENT TESTS AND QUALIFICATIONS WITH AN
EXCLUSIONARY EFFECT ON MINORITY APPLICANTS, SUCH REQUIREMENTS MUST BE
"SHOWN TO BEAR A DEMONSTRABLE RELATIONSHIP TO SUCCESSFUL PERFORMANCE OF
THE JOBS" FOR WHICH THEY WERE USED.  GRIGGS V. DUKE POWER CTO., 401
U.S. 424, 431 (1971).  CASTRO V. BEECHER, 459 F.2D 725 (CA1 1972);
CHANCE V. BOARD OF EXAMINERS, 458 F.2D 1167 (CA2 1972). 

/15/  TR. OF ORAL ARG. 3; 463 F.2D, AT 353. 

/16/  THE TRIAL JUDGE NOTED THAT NO PERSONAL INJURY OR PROPERTY
DAMAGE RESULTED FROM THE "STALL-IN" DUE "SOLELY TO THE FACT THAT LAW
ENFORCEMENT OFFICIALS HAD OBTAINED NOTICE IN ADVANCE OF PLAINTIFF'S
(HERE RESPONDENT'S) DEMONSTRATION AND WERE AT THE SCENE TO REMOVE
PLAINTIFF'S CAR FROM THE HIGHWAY."  318 F.SUPP.  846, 851. 

/17/  THE UNLAWFUL ACTIVITY IN THIS CASE WAS DIRECTED SPECIFICALLY
AGAINST PETITIONER.  WE NEED NOT CONSIDER OR DECIDE HERE WHETHER, OR
UNDER WHAT CIRCUMSTANCES, UNLAWFUL ACTIVITY NOT DIRECTED AGAINST THE
PARTICULAR EMPLOYER MAY BE A LEGITIMATE JUSTIFICATION FOR REFUSING TO
HIRE. 

/18/  WE ARE AWARE THAT SOME OF THE ABOVE FACTORS WERE, INDEED,
CONSIDERED BY THE DISTRICT JUDGE IN FINDING UNDER ^ 704 (A), THAT
"DEFENDANT'S (HERE PETITIONER'S) REASONS FOR REFUSING TO REHIRE THE
PLAINTIFF WERE MOTIVATED SOLELY AND SIMPLY BY THE PLAINTIFF'S
PARTICIPATION IN THE 'STALL IN' AND 'LOCK IN'  DEMONSTRATIONS."  318
F.SUPP., AT 850.  WE DO NOT INTIMATE THAT THIS FINDING MUST BE
OVERTURNED AFTER CONSIDERATION ON REMAND OF RESPONDENT'S ^ 703 (A) (1)
CLAIM.  WE DO, HOWEVER, INSIST THAT RESPONDENT UNDER ^ 703 (A) (1) MUST
BE GIVEN A FULL AND FAIR OPPORTUNITY TO DEMONSTRATE BY COMPETENT
EVIDENCE THAT WHATEVER THE STATED REASONS FOR HIS REJECTION, THE
DECISION WAS IN REALITY RACIALLY PREMISED. 

/19/  THE DISTRICT COURT MAY, FOR EXAMPLE, DETERMINE, AFTER
REASONABLE DISCOVERY THAT "THE (RACIAL) COMPOSITION OF DEFENDANT'S
LABOR FORCE IS ITSELF REFLECTIVE OF RESTRICTIVE OR EXCLUSIONARY
PRACTICES."  SEE BLUMROSEN, SUPRA, AT 92.  WE CAUTION THAT SUCH GENERAL
DETERMINATIONS, WHILE HELPFUL, MAY NOT BE IN AND OF THEMSELVES
CONTROLLING AS TO AN INDIVIDUALIZED HIRING DECISION, PARTICULARLY IN
THE PRESENCE OF AN OTHERWISE JUSTIFIABLE REASON FOR REFUSING TO
REHIRE.  SEE GENERALLY UNITED STATES V. BETHLEHEM STEEL CORP., 312
F.SUPP.  977, 992 (WDNY 1970), ORDER MODIFIED, 446 F.2D 652 (CA2
1971).  BLUMROSEN, SUPRA, N.19, AT 93.     /20/  SEE 463 F.2D, AT 352. 

/21/  IT IS, OF COURSE, A PREDICTIVE EVALUATION, RESISTANT TO
EMPIRICAL PROOF, WHETHER "AN APPLICANT'S PAST PARTICIPATION IN UNLAWFUL
CONDUCT DIRECTED AT HIS PROSPECTIVE EMPLOYER MIGHT INDICATE THE
APPLICANT'S LACK OF A RESPONSIBLE ATTITUDE TOWARD PERFORMING WORK FOR
THAT EMPLOYER."  463 F.2D, AT 353.  BUT IN THIS CASE, GIVEN THE
SERIOUSNESS AND HARMFUL POTENTIAL OF RESPONDENT'S PARTICIPATION IN THE
"STALL-IN" AND THE ACCOMPANYING INCONVENIENCE TO OTHER EMPLOYEES, IT
CANNOT BE SAID THAT PETITIONER'S REFUSAL TO EMPLOY LACKED A RATIONAL
AND NEUTRAL BUSINESS JUSTIFICATION.  AS THE COURT HAS NOTED ELSEWHERE:
"PAST CONDUCT MAY WELL RELATE TO PRESENT FITNESS; PAST LOYALTY MAY HAVE
A REASONABLE RELATIONSHIP TO PRESENT AND FUTURE TRUST."  GARNER V. LOS
ANGELES BOARD, 341 U.S. 716, 720 (1951). 

VERYL L. RIDDLE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE R. H. MCROBERTS AND THOMAS C. WALSH. 

LOUIS GILDEN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WERE JACK GREENBERG, JAMES M. NABRIT III, WILLIAM L. ROBINSON, AND
ALBERT ROSENTHAL. 

MILTON A. SMITH AND LAWRENCE M. COHEN FILED A BRIEF FOR THE CHAMBER
OF COMMERCE OF THE UNITED STATES AS AMICUS CURIAE URGING REVERSAL. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL POTTINGER,
DEPUTY SOLICITOR GENERAL WALLACE, KEITH A. JONES, DAVID L. ROSE, JULIA
P. COOPER, AND BEATRICE ROSENBERG FILED A BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :














BROWN, SECRETARY OF STATE OF CALIFORNIA V. CHOTE, 411 U.S. 452 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA 

     NO. 71 - 1583.  ARGUED FEBRUARY 22, 1973--DECIDED MAY 7, 1973

 342 F. SUPP. 1353, AFFIRMED AND REMANDED.  APPELLEE, WHO SOUGHT

  TO RUN FOR CONGRESS BUT ASSERTED THAT HE WAS UNABLE TO PAY

  CALIFORNIA'S SATUTORY FILING FEE, FILED A CLASS ACTION IN

  DISTRICT COURT, CHALLENGING THE CONSTITUTIONALITY OF THE

  FILING-FEE STATUTES.  IN THE FACE OF AN IMPENDING FILING

  DEADLINE, THE DISTRICT COURT GRANTED APPELLEE'S MOTION FOR A

  PRELIMINARY INJUNCTION.  HELD:  GIVEN THE POSSIBILITY THAT

  APPELLEE WOULD PREVAIL ON THE MERITS AND THE FACT THAT APPELLEE'S

  OPPORTUNITY TO BE A CANDIDATE WOULD HAVE BEEN FORECLOSED, ABSENT

  INTERIM RELIEF, THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

  IN GRANTING A PRELIMINARY INJUNCTION.  PP. 456 - 457. 


BURGER, C. J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES UNDER 28 U.S.C. ^ 1253 ON DIRECT APPEAL FROM A
THREE-JUDGE DISTRICT COURT IN THE NORTHERN DISTRICT OF CALIFORNIA.  THE
COURT WAS CONVENED PURSUANT TO 28 U.S.C. ^ 2281 WHEN APPELLEE CALLED
INTO QUESTION THE CONSTITUTIONALITY OF THOSE PROVISIONS OF THE
CALIFORNIA ELECTIONS CODE WHICH REQUIRE CANDIDATES IN A PRIMARY
ELECTION TO PAY A FILING FEE PRIOR TO HAVING THEIR NAMES LISTED ON THE
PRIMARY BALLOT. 

[[HC453'(ORIGINAL DOCUMENT PAGE 453)'  CAL. ELECTIONS CODE ^^ 6552
AND 6553 (SUPP. 1973).  UNDER THESE PROVISIONS, CANDIDATES FOR THE
FEDERAL HOUSE OF REPRESENTATIVES MUST PAY $425 (1% OF THE ANNUAL SALARY
OF THE OFFICE); CANDIDATES FOR THE FEDERAL SENATE MUST PAY $850 (2% OF
THE SALARY OF THE OFFICE).  THOSE WISHING TO RUN FOR STATEWIDE OFFICES
MUST PAY SIMILAR FEES RANGING IN AMOUNT FROM $192 FOR STATE ASSEMBLYMAN
(1% OF THE ANNUAL SALARY) TO $982 FOR GOVERNOR (2% OF THE ANNUAL
SALARY).  OTHER PORTIONS OF THE CALIFORNIA ELECTIONS CODE, NOT
CHALLENGED IN THE PRESENT SUIT, REQUIRE PROSPECTIVE CANDIDATES TO FILE
WITH APPROPRIATE STATE OFFICIALS A DECLARATION OF CANDIDACY AND SPONSOR
CERTIFICATES.  CAL. ELECTIONS CODE ^^ 6490 - 6491, 6494 - 6495 (1961
AND SUPP. 1973). 

APPELLEE COMMENCED THIS CLASS ACTION ON MARCH 3, 1972.  HE MOVED AND
WAS GRANTED PERMISSION BY A SINGLE DISTRICT JUDGE TO PROCEED IN FORMA
PAUPERIS AND AS HIS OWN ATTORNEY.  IN HIS COMPLAINT, APPELLEE ASSERTED
THAT HE WISHED TO BECOME A CANDIDATE FOR THE FEDERAL HOUSE OF
REPRESENTATIVES FROM THE 17TH DISTRICT OF CALIFORNIA, AND HAD TAKEN THE
FOLLOWING STEPS TO PLACE HIS NAME IN NOMINATION IN THE JUNE 6, 1972,
CALIFORNIA PRIMARY ELECTION.  ON FEBRUARY 17, 1972, APPELLEE CALLED THE
REGISTRAR OF VOTERS OF SANTA CLARA COUNTY, AN OFFICIAL DESIGNATED BY
STATE LAW TO DISPENSE THOSE FORMS NECESSARY TO PLACE A NAME IN
NOMINATION.  APPELLEE WAS PURPORTEDLY TOLD BY THE REGISTRAR OR A MEMBER
OF HIS OFFICE THAT HE WAS REQUIRED TO PAY $425 IN ADVANCE IN ORDER TO
SECURE BLANK COPIES OF THE NECESSARY PAPERS.  ACCORDING TO APPELLEE,
THE REGISTRAR'S OFFICE ALSO ADVISED HIM THAT THE PAPERS WOULD BE
DELIVERED IN EXCHANGE FOR A WORTHLESS CHECK.  /1/ 

APPELLEE PROCEEDED IMMEDIATELY TO THE REGISTRAR'S OFFICE WHERE HE
PRESENTED A PERSONAL CHECK FOR $425 AND REQUESTED COPIES OF THE
NECESSARY FORMS. 

[[HC454'(ORIGINAL DOCUMENT PAGE 454)'  TE^ STATE WAS GIVEN FIVE DAYS
IN WHICH TO RESPOND.  IT WAS NOT UNTIL MARCH 7 THAT THE CHIEF JUDGE OF
THE NINTH CIRCUIT WAS NOTIFIED OF THE APPLICATION FOR A THREE-JUDGE
COURT.  ON MARCH 8, HE DESIGNATED THE JUDGES WHO WERE TO COMPOSE THE
PANEL.  ON THE SAME DAY, THE COURT CONVENED AND HEARD ORAL ARGUMENT. 
BECAUSE OF THE SPEED WITH WHICH THE CASE HAD DEVELOPED, NEITHER THE
COURT NOR APPELLEE HAD AN OPPORTUNITY PRIOR TO THE HEARING TO CONSIDER
APPELLANT'S RETURN TO THE ORDER TO SHOW CAUSE, THE ONLY PAPER WHICH THE
STATE HAD BEEN ABLE TO PREPARE. 

ON MARCH 9, 1972, ONE DAY AFTER ORAL ARGUMENT AND ONE DAY BEFORE THE
DEADLINE FOR FILING NOMINATION PAPERS, THE DISTRICT COURT GRANTED
APPELLEE'S MOTION FOR A PRELIMINARY INJUNCTION, STATING: 

     "SINCE NO . . . SHOWING HAS BEEN MADE BY THE STATE, CONCERNING

  EITHER THE NECESSITY, THE PURPOSE OR THE REASONABLENESS OF THE

  FILING FEE STATUTES IN QUESTION, WE CONCLUDE THAT WITHIN THE

  RATIONALE AND HOLDING OF BULLOCK (V. CARTER, 405 U.S. 134

  (1972)), PLAINTIFF MAY PREVAIL ON THE MERITS AND THAT, ABSENT A

  PRELIMINARY INJUNCTION, HIS CONSTITUTIONAL RIGHT MAY BE

  IRREPARABLY LOST."  342 F. SUPP. 1353, 1355 - 1356.  (EMPHASIS

  ADDED.) 

UNDER THE TERMS OF THE PRELIMINARY INJUNCTION, THE STATE WAS REQUIRED
TO ALLOW APPELLEE AND OTHERS SIMILARLY SITUATED TO PLACE THEIR NAMES ON
THE BALLOT WITHOUT PAYING THE REQUIRED FEE, SO LONG AS THEY WERE
OTHERWISE ELIGIBLE FOR THE APPLICABLE STATE OR FEDERAL OFFICE AND HAD
DEPOSITED WITH AN APPROPRIATE STATE OFFICIAL AN AFFIDAVIT ATTESTING TO
THEIR INDIGENCY. 

THE STATE APPEALED DIRECTLY TO THIS COURT UNDER 28 U.S.C. ^ 1253. 

[[HC456'(ORIGINAL DOCUMENT PAGE 456)'  ITS JURISDICTIONAL STATEMENT
POSED TWO QUESTIONS: 

     "UNDER THE DECISION OF THIS COURT IN BULLOCK V. CARTER, 405

  U.S. 134 (1972), WHEN A STATE STATUE REQUIRING A CANDIDATE'S

  FILING FEE OF ONE PER CENT (1%) OF THE FIRST YEAR'S SALARY FOR

  THE OFFICE IS CHALLENGED ON EQUAL PROTECTION GROUNDS DOES THE

'RATIONAL BASIS' OR 'CLOSE SCRUTINY' STANDARD OF JUDICIAL REVIEW

  APPLY? 

     "DO CALIFORNIA ELECTIONS CODE SECTIONS 6552 AND 6553 DENY

  VOTERS OR INDIGENT PROSPECTIVE CANDIDATES EQUAL PROTECTION OF THE

  LAWS?" 

THUS, THE STATE OF CALIFORNIA, FOR REASONS NOT CLEAR TO US IN LIGHT OF
THE LIMITED RECORD, ASKED THE COURT TO ADDRESS ITSELF TO THE ULTIMATE
MERITS OF APPELLEE'S CONSTITUTIONAL CLAIM, A QUESTION WHICH THE
DISTRICT COURT DID NOT REACH.  IN THE PRESENT POSTURE OF THE CASE,
THERE IS NO OCCASION TO CONSIDER ANY ISSUES BEYOND THOSE ADDRESSED BY
THE DISTRICT COURT. 

THE ISSUANCE OF THE REQUESTED PRELIMINARY INJUNCTION WAS THE ONLY
ACTION TAKEN BY THE DISTRICT COURT.  IN DETERMINING WHETHER SUCH RELIEF
WAS REQUIRED, THAT COURT PROPERLY ADDRESSED ITSELF TO TWO RELEVANT
FACTORS:  FIRST, THE APPELLEE'S POSSIBILITIES OF SUCCESS ON THE MERITS;
AND SECOND, THE POSSIBILITY THAT IRREPARABLE INJURY WOULD HAVE
RESULTED, ABSENT INTERLOCUTORY RELIEF.  AS THE DISTRICT COURT OPINION
CLEARLY EVIDENCES, ISSUANCE OF THE INJUNCTION REFLECTED THE BALANCE
WHICH THAT COURT REACHED IN WEIGHING THESE FACTORS AND WAS NOT IN ANY
SENSE INTENDED AS A FINAL DECISION AS TO THE CONSTITUTIONALITY OF THE
CHALLENGED STATUTE.  IN THE EXIGENT CIRCUMSTANCES, THE GRANT OF
EXTRAORDINARY INTERIM RELIEF WAS A PERMISSIBLE CHOICE; BUT ON THE VERY
LIMITED RECORD BEFORE THE DISTRICT COURT A DECISION ON THE MERITS WOULD
NOT HAVE BEEN APPROPRIATE. 

IN REVIEWING SUCH INTERLOCUTORY RELIEF, THIS COURT MAY ONLY CONSIDER
WHETHER ISSUANCE OF THE INJUNCTION CONSTITUTED AN ABUSE OF DISCRETION. 

[[HC457'(ORIGINAL DOCUMENT PAGE 457)'  ALABAMA V. UNITED STATES, 279
U.S. 229 )1929); UNITED STATES V. CORRICK, 298 U.S. 435 (1936); UNITED
FUEL GAS CO. V. PUBLIC SERVICE COMM'N OF WEST VIRGINIA, 278 U.S. 322
(1929); NATIONAL FIRE INSURANCE CO. OF HARTFORD V. THOMPSON, 281 U.S.
331 (1930).  IN LIGHT OF THE ARGUMENTS PRESENTED BY APPELLEE AND THE
FACT THAT APPELLEE'S OPPORTUNITY TO BE A CANDIDATE WOULD HAVE BEEN
FORECLOSED, ABSENT SOME RELIEF, WE CANNOT CONCLUDE THAT THE COURT'S
ACTION WAS AN ABUSE OF DISCRETION.  WE THEREFORE AFFIRM THE ACTION
TAKEN BY THE DISTRICT COURT IN GRANTING INTERIM RELIEF. 

IN DOING SO, WE INTIMATE NO VIEW AS TO THE ULTIMATE MERITS OF
APPELLEE'S CONTENTIONS.  THE RECORD IN THIS CASE CLEARLY REFLECTS THE
LIMITED TIME WHICH THE PARTIES HAD TO ASSEMBLE EVIDENCE AND PREPARE
THEIR ARGUMENTS.  WHILE THE DISTRICT COURT'S SWIFT ACTION IS
UNDERSTANDABLE IN VIEW OF THE DEADLINE WHICH IT FACED, THE RESULTING
RECORD WAS SIMPLY INSUFFICIENT TO ALLOW THAT COURT TO CONSIDER FULLY
THE GRAVE, FAR-REACHING CONSTITUTIONAL QUESTIONS PRESENTED. 

THE SPECIFIC DEADLINE WHICH LED THE DISTRICT COURT TO GRANT
EQUITABLE RELIEF HAS NOW PASSED.  /4/  NOTHING PRECLUDES APPELLEE FROM
SEEKING A TRIAL ON THE MERITS, IF HE CHOOSES TO PROCEED.  THE CASE IS
THEREFORE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  /5/

              AFFIRMED AND REMANDED. 

/1/  THE STATE DENIES THAT SUCH ADVICE WAS EVER COMMUNICATED TO
APPELLEE.  IN AN AFFIDAVIT SUBMITTED TO THE DISTRICT COURT, THE
REGISTRAR OF VOTERS OF SANTA CLARA COUNTY STATED THAT IT WAS THE POLICY
OF HIS OFFICE NOT TO DISTRIBUTE THE REQUIRED FORMS TO ANYONE WHO
REPRESENTED TO THE REGISTRAR THAT THE CHECK SUBMITTED WAS WORTHLESS. 
THE REGISTRAR FURTHER STATED THAT, TO HIS KNOWLEDGE, NEITHER HE NOR
ANYONE IN HIS OFFICE HAD EVER INFORMED APPELLEE THAT FORMS WOULD BE
ISSUED UPON PRESENTATION OF A WORTHLESS CHECK. 

/2/  WHEN THE CASE WAS ARGUED BEFORE THE DISTRICT COURT, APPELLEE
CLAIMED THAT HE HAD ALSO TOLD THE REGISTRAR OR A MEMBER OF HIS OFFICE
THAT THE ACCOUNT ON WHICH THE CHECK WAS DRAWN DID NOT CONTAIN
SUFFICIENT FUNDS TO COVER IT.  HOWEVER, THIS FACT IS NOT ALLEGED IN THE
COMPLAINT. 

/3/  APPELLANT SUBMITTED TO THE DISTRICT COURT AN AFFIDAVIT FROM THE
DEPUTY SECRETARY OF STATE TO WHOM APPELLEE HAD SPOKEN, DISPUTING
APPELLEE'S CLAIM THAT HE HAD BEEN INFORMED THAT HIS NAME WOULD NOT BE
PLACED ON THE BALLOT IF HIS CHECK WAS NOT HONORED. 

/4/  ALTHOUGH THE JUNE 6 PRIMARY ELECTION HAS PASSED, THE QUESTION
RAISED IS ONE "CAPABLE OF REPETITION, YET EVADING REVIEW." 
CONSEQUENTLY, THE CASE IS NOT MOOT.  SOUTHERN PACIFIC TERMINAL CO. V.
ICC, 219 U.S. 498, 515 (1911); MOORE V. OGILVIE, 394 U.S. 814, 816
(1969). 

/5/  WE HAVE GRANTED CERTIORARI IN NO. 71 - 6852, LUBIN V. ALLISON,
POST, P. 964, IN ORDER TO CONSIDER CONFLICTS IN HOLDINGS REGARDING THE
CONSTITUTIONALITY OF STATE FILING-FEE STATUTES. 

HENRY G. ULLERICH, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF WERE EVELLE J. YOUNGER,
ATTORNEY GENERAL, AND IVER E. SKJEIE, ASSISTANT ATTORNEY GENERAL. 

PHILIP ELMAN, BY APPOINTMENT OF THE COURT, 409 U.S. 1035, ARGUED THE
CAUSE AND FILED A BRIEF FOR APPELLEE. 

MELVIN L. WULF, SANFORD J. ROSEN, MARGUERITE BUCKLEY, A. L. WIRIN,
FRED OKRAND, AND LAWRENCE R. SPERBER FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :
























FEDERAL POWER COMMISSION V. MEMPHIS LIGHT, GAS & WATER DIVISION ET
AL., 411 U.S. 458 



       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 72 - 486.  ARGUED MARCH 27, 1973 -- DECIDED MAY 7,

      1973,* 149 U.S. APP.D.C. 238, 462 F.2D 853, REVERSED AND

           REMANDED. 

*TOGETHER WITH NO. 72 - 488, TEXAS GAS TRANSMISSION CORP. V. MEMPHIS
LIGHT, GAS & WATER DIVISION ET AL., ALSO ON CERTIORARI TO THE SAME
COURT. 


    SECTION 441 OF THE TAX REFORM ACT OF 1969 DOES NOT DEPRIVE THE

  FEDERAL POWER COMMISSION OF THE AUTHORITY TO PERMIT A UTILITY

  THAT IS SUBJECT TO ITS JURISDICTION UNDER THE NATURAL GAS ACT TO

  CHANGE THE DEPRECIATION METHOD THAT IT USES FOR PURPOSES OF

  RATEMAKING FROM ACCELERATED DEPRECIATION WITH "FLOW THROUGH" OF

  THE UTILITY'S TAX SAVINGS TO CUSTOMERS TO ACCELERATED

  DEPRECIATION WITH NORMALIZATION (WHERE THE INCOME TAX EXPENSE

  ALLOWED IN THE COST OF SERVICE IS COMPUTED ON A STRAIGHT-LINE

  DEPRECIATION BASIS) WITH RESPECT TO PRE-1970 PROPERTY AS WELL AS

  REPLACEMENT PROPERTY.  PP. 465 - 474. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

[[HC459'(ORIGINAL DOCUMENT PAGE 459)' 

WE GRANTED CERTIORARI IN THESE CASES TO DETERMINE WHETHER ^ 441 OF
THE TAX REFORM ACT OF 1969, 26 U.S.C. ^ 167(L), CIRCUMSCRIBES THE
AUTHORITY OF THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT, 52
STAT. 821, AS AMENDED, 15 U.S.C. ^ 717 ET SEQ., TO PERMIT A REGULATED
UTILITY TO CHANGE ITS METHOD OF COMPUTING DEPRECIATION FOR RATEMAKING
PURPOSES FROM "FLOW-THROUGH" TO "NORMALIZATION" WITH RESPECT TO
PROPERTY ACQUIRED PRIOR TO 1970 AS WELL AS "REPLACEMENT"  PROPERTY. 

SINCE THE RESOLUTION OF THIS ISSUE DEPENDS LARGELY ON THE BACKGROUND
AND HISTORY OF ^ 441 AND THE COMMISSION'S REGULATORY POWERS, A BRIEF
REVIEW IS IN ORDER AT THE OUTSET.  SECTION 167 OF THE INTERNAL REVENUE
CODE AUTHORIZED TAXPAYERS, INCLUDING REGULATED UTILITIES, TO USE
ACCELERATED OR LIBERALIZED DEPRECIATION IN CALCULATING THEIR FEDERAL
INCOME TAXES.  /1/  THE COMMISSION RETAINED JURISDICTION TO PRESCRIBE
THE DEPRECIATION METHOD TO BE USED BY REGULATED UTILITIES IN
CALCULATING THEIR FEDERAL INCOME TAX EXPENSE FOR RATEMAKING PURPOSES. 
/2/ 

[[HC460'(ORIGINAL DOCUMENT PAGE 460)'  INITIALLY, THE COMMISSION
REQUIRED UTILITIES TO COMPUTE THEIR COST OF SERVICE, WHICH INCLUDES
FEDERAL INCOME TAXES, AS IF THEY WERE USING STRAIGHT-LINE
DEPRECIATION.  THIS METHOD, REFERRED TO AS "NORMALIZATION," WAS
DESIGNED TO AVOID GIVING THE PRESENT CUSTOMERS OF A UTILITY THE
BENEFITS OF TAX DEFERRAL ATTRIBUTABLE TO ACCELERATED DEPRECIATION.  IF
A UTILITY USED ACCELERATED DEPRECIATION IN DETERMINING ITS ACTUAL TAX
LIABILITY, THE DIFFERENCE BETWEEN THE TAXES ACTUALLY PAID AND THE
HIGHER TAXES REFLECTED AS A COST OF SERVICE FOR RATEMAKING PURPOSES WAS
REQUIRED TO BE PLACED IN A DEFERRED TAX RESERVE ACCOUNT.  SEE AMERE GAS
UTILITITES CO., 15 F. P. C. 760. 

IT SOON BECAME APPARENT THAT ACCELERATED DEPRECIATION IN PRACTICE
RESULTED IN PERMANENT TAX SAVINGS.  BECAUSE MOST UTILITIES HAD GROWING
OR AT LEAST STABLE PLANT INVESTMENTS, THE DEPRECIATION ALLOWANCES FROM
ADDITIONAL AND REPLACEMENT EQUIPMENT OFFSET THE DECLINING DEPRECIATION
ALLOWANCE ON EXISTING PROPERTY.  ACCORDINGLY, THE COMMISSION REQUIRED
UTILITIES USING ACCELERATED DEPRECIATION FOR TAX PURPOSES TO USE THE
SAME METHOD FOR CALCULATING THEIR COST OF SERVICE AND, THUS, TO "FLOW
THROUGH" ANY TAX SAVINGS TO THEIR CUSTOMER.  ALABAMA-TENNESSEE NATURAL
GAS CO., 31 F. P. C. 208, AFF'D SUB NOM. ALABAMA-TENNESSEE NATURAL GAS
CO. V. FPC, 359 F.2D 318 (CA5).  SUBSEQUENTLY, THE COMMISSION DECIDED
THAT IT WOULD IMPUTE THE USE OF ACCELERATED DEPRECIATION FOR RATEMAKING
PURPOSES REGARDLESS OF THE METHOD USED FOR COMPUTING ACTUAL TAXES. 
MIDWESTERN GAS TRANSMISSION CO., 36 F. P. C. 61, AFF'D SUB NOM.
MIDWESTERN GAS TRANSMISSION CO. V. FPC, 388 F.2D 444 (CA7). 

[[HC461'(ORIGINAL DOCUMENT PAGE 461)' 

WHEN THE HOUSE AND SENATE CONSIDERED TAX REFORM LEGISLATION IN 1969,
BOTH WERE CONCERNED WITH THE LOSS OF TAX REVENUES THAT STEMMED FROM THE
COMBINED EFFECT OF ACCELERATED DEPRECIATION FOR COMPUTING FEDERAL TAXES
(LEADING TO HIGHER DEDUCTIONS) AND FLOW-THROUGH FOR FIXING RATES
(LEADING TO LOWER RATES AND THUS LOWER GROSS REVENUES).  /3/  SECTION
441 OF THE TAX REFORM ACT, WHICH ADDED ^ 167(L) TO THE INTERNAL REVENUE
CODE, WAS DESIGNED IN GENERAL TO "FREEZE" EXISTING DEPRECIATION
PRACTICES.  /4/  AS PASSED BY THE HOUSE, ^ 441 WOULD HAVE ESTABLISHED
THREE RULES WITH RESPECT TO EXISTING DEPRECIABLE PROPERTY:  /5/ 

     "(1) IF STRAIGHT LINE DEPRECIATION IS PRESENTLY BEING TAKEN,

  THEN NO FASTER DEPRECIATION IS TO BE PERMITTED AS TO THAT

  PROPERTY. 

     "(2) IF THE TAXPAYER IS TAKING ACCELERATED DEPRECIATION AND IS

  'NORMALIZING' ITS DEFERRED TAXES, THEN IT MUST GO TO THE STRAIGHT

  LINE METHOD UNLESS IT CONTINUES TO NORMALIZE AS TO THAT

  PROPERTY. 

     "(3) IF THE TAXPAYER IS TAKING ACCELERATED DEPRECIATION AND

  FLOWING THROUGH TO ITS CUSTOMERS THE BENEFITS OF THE DEFERRED

  TAXES, THEN THE TAXPAYER MUST CONTINUE TO DO SO, UNLESS THE

  APPROPRIATE REGULATORY AGENCY PERMITS A CHANGE AS TO THAT

  PROPERTY." 

THE SENATE BILL AS PASSED WAS SIMILAR TO THAT OF THE HOUSE, EXCEPT THAT
UTILITIES ON FLOW-THROUGH WERE GIVEN THE RIGHT TO ELECT WITHIN 180 DAYS
"TO SHIFT FROM THE FLOW-THROUGH TO THE STRAIGHT-LINE METHOD, WITH OR
WITHOUT THE PERMISSION OF THE APPROPRIATE REGULATORY AGENCY, OR . . .
WITH THE PERMISSION OF THE REGULATORY AGENCY TO SHIFT TO THE
NORMALIZATION METHOD . . ."  /6/ 

[[HC462'(ORIGINAL DOCUMENT PAGE 462)'  THIS ELECTION WAS TO APPLY BOTH
TO NEW AND EXISTING PROPERTY.  IN CONFERENCE, HOWEVER, IT WAS AGREED
THAT THIS RIGHT OF ELECTION WOULD APPLY ONLY TO PROPERTY ACQUIRED BY
THE UTILITY AFTER 1969 TO EXPAND ITS FACILITIES.  /7/ 

THUS, AS ADDED TO THE INTERNAL REVENUE CODE IN 1969, ^ 167(L)
DISTINGUISHES BETWEEN TWO BASIC TYPES OF "PUBLIC UTILITY PROPERTY":
/8/  "PRE-1970 PROPERTY," WHICH IS PROPERTY ACQUIRED BY THE TAXPAYER
BEFORE JANUARY 1, 1970 ( ^ 167(L) (3) (B), AND ALL OTHER PROPERTY,
REFERRED TO AS "POST-1969 PROPERTY" ( ^ 167(L) (3) (C)).  A FURTHER
DISTINCTION IS DRAWN BETWEEN POST-1969 PROPERTY "WHICH INCREASES THE
PRODUCTIVE OR OPERATIONAL CAPACITY OF THE TAXPAYER" (EXPANSION
PROPERTY) AND POST-1969 PROPERTY WHICH MERELY REPLACES EXISTING
PROPERTY ( ^ 167(L) (4) (A)).  WITH RESPECT TO PRE-1970 PROPERTY, A
UTILITY MAY USE (1) STRAIGHT-LINE DEPRECIATION, (2) THE METHOD USED
PRIOR TO AUGUST 1969 IF IT ALSO EMPLOYS NORMALIZATION, OR (3)
ACCELERATED DEPRECIATION WITH FLOW-THROUGH, BUT ONLY IF THAT METHOD WAS
USED PRIOR TO AUGUST 1969 ( ^ 167(L) (1)). 

[[HC463'(ORIGINAL DOCUMENT PAGE 463)'  WITH RESPECT TO POST-1969
PROPERTY, A UTILITY MAY USE (1) STRAIGHT-LINE DEPRECIATION, (2)
ACCELERATED DEPRECIATION WITH NORMALIZATION, OR (3) ACCELERATED
DEPRECIATION WITH FLOW-THROUGH IF THE UTILITY USED FLOW-THROUGH PRIOR
TO AUGUST 1969 ( ^ 167(L) (2)).  IN ADDITION, UNDER ^ 167(L) (4) (A), A
UTILITY MAY ELECT TO ABANDON ACCELERATED DEPRECIATION WITH FLOW-THROUGH
WITH RESPECT TO POST-1969 EXPANSION PROPERTY. 

THE PROCEEDINGS IN ISSUE HERE INVOLVE TEXAS GAS TRANSMISSION CORP.,
THE OPERATOR OF A MAJOR INTERSTATE PIPELINE SYSTEM CERTIFICATED BY THE
FEDERAL POWER COMMISSION.  ALTHOUGH TEXAS GAS UTILITZED ACCELERATED
DEPRECIATION WITH FLOW-THROUGH PRIOR TO THE ADOPTION OF THE TAX REFORM
ACT, IT FILED A PROPOSED RATE INCREASE WITH THE COMMISSION ON JUNE 17,
1969, BASED UPON "THE PROPOSED DISCONTINUANCE OF THE USE OF LIBERALIZED
DEPRECIATION AND THE REVERSION TO A STRAIGHT-LINE METHOD OF TAX
DEPRECIATION."  AFTER ^ 167(L) WAS ENACTED, TEXAS GAS ADVISED THE
COMMISSION THAT IT INTENDED TO EXERCISE THE ELECTION PROVIDED IN ^
167(L) (4) (A) AND SOUGHT PERMISSION TO USE ACCELERATED DEPRECIATION
WITH NORMALIZATION WITH RESPECT TO ITS POST-1969 EXPANSION PROPERTY. 
/9/  IT ALSO SOUGHT ASSURANCE, BEFORE IT MADE THE ELECTION, THAT IT
WOULD BE ABLE TO CHANGE FROM FLOW-THROUGH TO STRAIGHT-LINE OR,
PREFERABLY, ACCELERATED DEPRECIATION WITH NORMALIZATION WITH RESPECT TO
ITS PRE-1970 PROPERTY AND POST-1969 REPLACEMENT PROPERTY. 

THE COMMISSION, HOLDING THAT ITS AUTHORITY "TO DETERMINE WHETHER A
COMPANY MAY EFFECT SUCH A CHANGE IS NOT DIMINISHED" UNDER THE TAX
REFORM ACT, PERMITTED TEXAS GAS TO CHANGE FROM FLOW-THROUGH TO
NORMALIZATION FOR RATEMAKING PURPOSES. 

[[HC464'(ORIGINAL DOCUMENT PAGE 464)'  OPINION NO. 578, 43 F. P. C.
824, 828, REHEARING DENIED, 44 F. P. C. 140.  /10/  THE COMMISSION
REASONED THAT THE BASIS OF ITS DECISIONS IN ALABAMA-TENNESSEE AND
MIDWESTERN WOULD NO LONGER BE APPLICABLE IF TEXAS GAS WERE TO SWITCH TO
NORMALIZATION WITH RESPECT TO POST-1969 EXPANSION PROPERTY.  IN THAT
EVENT, THE TAX SAVINGS RESULTING FROM THE DEFERRAL ATTRIBUTABLE TO
ACCELERATED DEPRECIATION WOULD NOT BE PERMANENT.  RATHER, IF TEXAS GAS
WERE REQUIRED TO CONTINUE FLOW-THROUGH FOR ALL BUT ITS NEW EXPANSION
PROPERTY, IT WOULD BE FACED WITH A STEADILY INCREASING COST OF SERVICE
WHICH WOULD NECESSITATE REPEATED RATE INCREASES.  UNDER THESE
CIRCUMSTANCES, THE COMMISSION CONCLUDED:  "TEXAS GAS IS CORRECT IN
CONTENDING THAT NORMALIZATION IN COMPUTING THE TAX ALLOWANCE FOR RATE
PURPOSES WITH RESPECT TO ITS PRE-1970 FACILITIES OFFERS MORE HOPE FOR
STABILITY OF RATES FOR ITS CUSTOMERS AND MORE ASSURANCE THAT THE
COMPANY CAN EARN ITS FAIR RATE OF RETURN WITHOUT FUTURE RATE
INCREASES.  FURTHER BENEFITS OF NORMALIZATION ARE THAT IT WILL IMPROVE
THE COMPANY'S BEFORE TAX COVERAGE OF INTEREST, THEREBY ENHANCING THE
QUALITY OF ITS SECURITIES, AND THAT IT WILL HELP ALLEVIATE PRESENT DAY
CASH SHORTAGES." 

[[HC465'(ORIGINAL DOCUMENT PAGE 465)'  ID., AT 829 - 830. 

THE COURT OF APPEALS, ON PETITIONS FOR REVIEW, REVERSED THE
COMMISSION'S ORDER.  /11/  149 U.S. APP. D. C. 238, 462 F.2D 853,
REHEARING DENIED, ID., AT 250, 462 F.2D, AT 865.  ALTHOUGH THE COURT
RECOGNIZED THAT THE VERSION OF THE TAX REFORM ACT PASSED BY THE HOUSE
WOULD HAVE SUPPORTED THE COMMISSION'S ORDER, IT HELD THAT THE LIMITED
NATURE OF THE ELECTION PROVISION AS FINALLY PASSED DEPRIVED THE
COMMISSION OF AUTHORITY TO PERMIT REGULATED UTILITIES TO ABANDON FLOW
THROUGH WITH RESPECT TO THEIR EXISTING AND REPLACEMENT PROPERTY.  WE
REVERSE AND REMAND TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

THE PRESENT CASES CONCERN SOLELY THE DEPRECIATION METHODS USED BY
UTILITIES IN CALCULATING THEIR FEDERAL INCOME TAX EXPENSES FOR
RATEMAKING PURPOSES. 

IN ^ 441 OF THE TAX REFORM ACT OF 1969, CONGRESS DEALT PRIMARILY
WITH A REVENUE MEASURE UNDER THE TAX LAWS AND ONLY INDIRECTLY WITH THE
REGULATORY POWER OF THE COMMISSION UNDER THE NATURAL GAS ACT.  WE HAVE
HAD BEFORE US ON NUMEROUS OCCASIONS CASES ARISING UNDER THE NATURAL GAS
ACT.  IN THE EARLY CASE OF FPC V. HOPE NATURAL GAS CO., 320 U.S. 591,
WE EMPHASIZED TWO ASPECTS OF THE POWER OF THE COMMISSION TO FIX "JUST
AND REASONABLE" RATES UNDER 15 U.S.C. ^ 717.  FIRST, WAS THE DESIRE "TO
PROTECT CONSUMERS AGAINST EXPLOITATION," 320 U.S., AT 610, AND SECOND,
WAS THE AIM TO PROMOTE THE "FINANCIAL INTEGRITY" OF THE NATURAL GAS
COMPANIES AS MEASURED, NOT ONLY BY REVENUES SUFFICIENT TO RECOVER
OPERATING EXPENSES AND CAPITAL COSTS, ID., AT 603, BUT ALSO BY REVENUES
"SUFFICIENT TO ASSURE CONFIDENCE IN THE FINANCIAL INTEGRITY OF THE
ENTERPRISE, SO AS TO MAINTAIN ITS CREDIT AND TO ATTRACT CAPITAL." 

[[HC466'(ORIGINAL DOCUMENT PAGE 466)'  IBID.  WE MENTION THOSE
MATTERS BECAUSE (1) THE TREATMENT OF DEPRECIATION BEARS ON RATES AND
(2) THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY TO THIS TAX
MEASURE THAT CONGRESS DESIRED TO MODIFY, AS RESPECTS THE PRECISE ISSUE
INVOLVED HERE, THE BROAD DISCRETION OF THE COMMISSION DELINEATED IN
HOPE NATURAL GAS AND IN OTHER RATE CASES. 

UNDER ^ 4(A) OF THE NATURAL GAS ACT, 15 U.S.C. ^ 717(A), ALL RATES
AND CHARGES MADE BY A NATURAL GAS COMPANY SUBJECT TO THE COMMISSION'S
JURISDICTION MUST BE "JUST AND REASONABLE."  SECTION 4(E), 15 U.S.C.
SEC. 717CE), SETS FORTH THE PROCEDURES WHEREBY THE COMMISSION CAN
DETERMINE WHETHER A PROPOSED RATE SCHEDULE IS LAWFUL, AND ^ 5, 15
U.S.C. ^ 717D, GIVES THE COMMISSION CERTAIN POWERS TO FIX RATES AND
CHARGES.  FINALLY, UNDER ^ 9(A), 15 U.S.C. ^ 717H (A), THE COMMISSION
MAY "REQUIRE NATURAL-GAS COMPANIES TO CARRY PROPER AND ADEQUATE
DEPRECIATION AND AMORTIZATION ACCOUNTS IN ACCORDANCE WITH SUCH RULES,
REGULATIONS, AND FORMS OF ACCOUNT AS THE COMMISSION MAY PRESCRIBE."  IN
FPC V. UNITED GAS PIPE LINE CO., 386 U.S. 237, 243, THE COURT STATED: 

"ONE OF (THE COMMISSION'S) STATUTORY DUTIES IS TO DETERMINE JUST AND
REASONABLE RATES WHICH WILL BE SUFFICIENT TO PERMIT THE COMPANY TO
RECOVER ITS COSTS OF SERVICE AND A REASONABLE RETURN ON ITS
INVESTMENT.  COST OF SERVICE IS THEREFORE A MAJOR FOCUS OF INQUIRY. 
NORMALLY INCLUDED AS A COST OF SERVICE IS A PROPER ALLOWANCE FOR TAXES,
INCLUDING FEDERAL INCOME TAXES.  THE DETERMINATION OF THIS ALLOWANCE,
AS A GENERAL PROPOSITION, IS OBVIOUSLY WITHIN THE JURISDICTION OF THE
COMMISSION." 

[[HC467'(ORIGINAL DOCUMENT PAGE 467)'  THE LOWER COURTS HAVE ALLOWED
THE COMMISSION BROAD DISCRETION IN DETERMINING PROPER DEPRECIATION
METHODS FOR RATEMAKING PURPOSES.  SEE, E. G., ALABAMA-TENNESSEE NATURAL
GAS CO. V. FPC, 359 F.2D 318; MIDWESTERN GAS TRANSMISSION CO. V. FPC,
388 F.2D 444. 

UNTOUCHED.  FOR EXAMPLE, A UTILITY USING STRAIGHT-LINE DEPRECIATION
WITH RESPECT TO ITS PRE-1970 PROPERTY COULD NOT SWITCH TO ACCELERATED
DEPRECIATION, NOR COULD A UTILITY BE REQUIRED TO SWITCH TO FLOW-THROUGH
WITH RESPECT TO PRE-1970 PROPERTY.  SEE ^ 167(L) (1).  BUT ^ 167(L) ON
ITS FACE DOES NOT PRECLUDE THE COMMISSION FROM EXERCISING ITS STATUTORY
POWERS TO PERMIT A UTILITY TO ABANDON FLOW-THROUGH.  SECTION 167(L) (1)
(B) PROVIDES THAT "(IN THE CASE OF ANY PRE-1970 PUBLIC UTILITY
PROPERTY, THE TAXPAYER MAY USE THE APPLICABLE 1968 METHOD FOR SUCH
PROPERTY IF -- (I) THE TAXPAYER USED A FLOW-THROUGH METHOD OF
ACCOUNTING" PRIOR TO AUGUST 1969.  (EMPHASIS ADDED.) 

THE COURT OF APPEALS, HOWEVER, FOUND ERROR IN THE COMMISSION'S
ACTION BASED ON ITS DETAILED AND CONSIDERED ANALYSIS OF THE LEGISLATIVE
HISTORY OF ^ 167(L).  IT CONCLUDED THAT "THE FINAL VERSION OF THE BILL
LIMITS THE APPLICABILITY OF THE RIGHT OF ELECTION TO POST-1969
EXPANSION (NON-REPLACEMENT) PROPERTY ALONE."  149 U.S. APP. D. C., AT
246, 462 F.2D, AT 861 (EMPHASIS IN ORIGINAL).  IT REASONED AS FOLLOWS. 
AT THE HOUSE STAGE THE ACTION OF THE COMMISSION WOULD HAVE BEEN
JUSTIFIED TO SWITCH TO NORMALIZATION BECAUSE, AS ALREADY NOTED, THE
HOUSE REPORT STATED:  /12/ 

     "YOUR COMMITTEE'S BILL PROVIDES THAT, IN THE CASE EXISTING

  PROPERTY, THE FOLLOWING RULES ARE TO APPLY: 

     "(1) IF STRAIGHT LINE DEPRECIATION IS PRESENTLY BEING TAKEN,

  THEN NO FASTER DEPRECIATION IS TO BE PERMITTED AS TO THAT

  PROPERTY. 

[[HC468'(ORIGINAL DOCUMENT PAGE 468)' 

     "(2) IF THE TAXPAYER IS TAKING ACCELERATED DEPRECIATION AND IS

  'NORMALIZING' ITS DEFERRED TAXES, THEN IT MUST GO TO THE STRAIGHT

LINE METHOD UNLESS IT CONTINUES TO NORMALIZE AS TO THAT

PROPERTY. 

     "(3) IF THE TAXPAYER IS TAKING ACCELERATED DEPRECIATION AND

  FLOWING THROUGH TO ITS CUSTOMERS THE BENEFITS OF THE DEFERRED

  TAXES, THEN THE TAXPAYER MUST CONTINUE TO DO SO, UNLESS THE

  APPROPRIATE REGULATORY AGENCY PERMITS A CHANGE AS TO THAT

  PROPERTY."  (EMPHASIS ADDED.) 

THE WORD "EXISTING" PROPERTY AS USED IN THAT REPORT INCLUDED
"REPLACEMENT" PROPERTY IN THE MIND OF THE COURT OF APPEALS. 

THE SENATE VERSION OF THE BILL /13/  WOULD HAVE PERMITTED TEXAS GAS
TO SHIFT FROM LIBERALIZED DEPRECIATION WITH FLOW-THROUGH EITHER TO
STRAIGHT-LINE DEPRECIATION OR WITH THE COMMISSION'S APPROVAL TO
LIBERALIZED DEPRECIATION WITH NORMALIZATION.  149 U.S. APP. D. C., AT
247, 462 F.2D, AT 862. 

THE COURT OF APPEALS, HOWEVER, CONCLUDED THAT BECAUSE THE RIGHT OF
ELECTION WAS RESTRICTED WHILE THE BILL WAS IN CONFERENCE TO APPLY ONLY
TO POST-1969 EXPANSION PROPERTY, THE COMMISSION COULD NOT PERMIT A
UTILITY TO CHANGE ITS METHOD WITH RESPECT TO EXISTING OR REPLACEMENT
PROPERTY. 

[[HC469'(ORIGINAL DOCUMENT PAGE 469)'  IBID.  IT RELIED ON THE
FOLLOWING FOUR PARAGRAPHS FROM THE CONFERENCE REPORT.  /14/ 

     "THE HOUSE BILL PROVIDES THAT IN THE CASE OF CERTAIN LISTED

  REGULATED INDUSTRIES (THE FURNISHING OR SALE OF . . . GAS THROUGH

  A LOCAL DISTRIBUTION SYSTEM, . . . AND TRANSPORTATION OF GAS BY

  PIPELINE) A TAXPAYER IS NOT PERMITTED TO USE ACCELERATED

  DEPRECIATION UNLESS IT 'NORMALIZES' THE CURRENT INCOME TAX

REDUCTION RESULTING FROM THE USE OF SUCH ACCELERATED

  DEPRECIATION.  . . 

     "THIS RULE IS NOT TO APPLY IN THE CASE OF A TAXPAYER THAT IS
AT

  PRESENT FLOWING THROUGH THE TAX REDUCTION TO EARNINGS FOR

  PURPOSES OF COMPUTING ITS ALLOWABLE EXPENSES ON ITS REGULATED

  BOOKS OF ACCOUNT.  ALSO, IF THE TAXPAYER IS NOW USING STRAIGHT

  LINE DEPRECIATION AS TO ANY PUBLIC UTILITY PROPERTY IT MAY NOT

  CHANGE TO ACCELERATED DEPRECIATION AS TO THAT PROPERTY. 

"THE SENATE AMENDMENT MAKES THE FOLLOWING CHANGES IN THE HOUSE

  BILL: . . . (D) AND ELECTION IS PERMITTED TO BE MADE WITHIN 180

  DAYS AFTER THE DATE OF ENACTMENT BY A COMPANY AT PRESENT ON

  FLOW-THROUGH TO COME UNDER THE RULES OF THE BILL . . . 

     "THE CONFERENCE SUBSTITUTE (SEC. 441 OF THE SUBSTITUTE AND
SEC.

  167(L) OF THE CODE) FOLLOWS THE SENATE AMENDMENT EXCEPT THAT THE

  SPECIAL PROVISION REFERRED TO IN (E) ABOVE IS STRICKEN AND THE

  180-DAY ELECTION (ITEM (D), ABOVE) IS MODIFIED TO APPLY TO NEW

  PROPERTY AND NOT TO REPLACEMENT PROPERTY.  EVEN IN THE CASE OF

  NEW PROPERTY, HOWEVER, THE RIGHT TO CHANGE OVER FROM THE

  FLOWTHROUGH METHOD IS TO BE AVAILABLE ONLY TO THE EXTENT THE NEW

  PROPERTY INCREASES THE PRODUCTIVE OR OPERATIONAL CAPACITY OF THE

  COMPANY."  (EMPHASIS ADDED.) 

[[HC470'(ORIGINAL DOCUMENT PAGE 470)' 

FROM THESE FOUR PARAGRAPHS THE COURT OF APPEALS CONCLUDED THAT THE
SECOND PARAGRAPH OF THE CONFERENCE REPORT PROHIBITS TEXAS GAS FROM
ABANDONING LIBERALIZED DEPRECIATION WITH FLOW-THROUGH AND THAT THE
RIGHT OF ELECTION WAS RESTRICTED TO POST-1969 EXPANSION PROPERTY ONLY. 

THE SECOND PARAGRAPH, HOWEVER, AS WE READ IT, WHEN IT USES THE WORDS
"THIS RULE" REFERS, NOT TO THE FINAL BILL, BUT TO THE INITIAL HOUSE
BILL.  THAT INITIAL BILL, AS SUMMARIZED IN THE HOUSE REPORT, AS ALREADY
NOTED, /15/  HAD SOMEWHAT DIFFERENT PROVISIONS FOR DEPRECIATION.  THE
FIRST PARAGRAPH OF THE QUOTATION FROM THE CONFERENCE REPORT IN OUR VIEW
SUMMARIZED THE HOUSE'S PROPOSED SECOND RULE.  THE WORDS "THIS RULE" IN
THE SECOND PARAGRAPH, THEREFORE, REFER TO THE HOUSE'S PROPOSED SECOND
RULE.  /16/  ONLY THE THIRD PARAGRAPH OF THE EXCERPT REACHED THE
CHANGES MADE BY THE SENATE.  ONLY THE FOURTH PARAGRAPH RESOLVED THE
DIFFERENCES BETWEEN THE TWO BILLS.  THERE IS NOTHING IN EITHER THE
THIRD OR THE FOURTH PARAGRAPH TO INDICATE THAT THE ELECTION AUTHORIZED
BY THE CONFERENCE REPORT WAS TO LIMIT OR REPLACE THE THREE GENERAL
RULES PROPOSED BY THE HOUSE, THE THIRD HOUSE-PROPOSED RULE /17/
AUTHORIZING PRECISELY WHAT THE COMMISSION ALLOWED IN THIS CASE. 

[[HC471'(ORIGINAL DOCUMENT PAGE 471)'  THE SECOND PARAGRAPH, READ IN
THE CONTEXT OF THE CONFERENCE REPORT, DOES NOT STATE THAT THE
COMMISSION LACKS AUTHORITY TO PERMIT A COMPANY ON FLOW-THROUGH TO
ABANDON IT WITH RESPECT TO EXISTING PROPERTY.  IT ONLY STATES THAT A
COMPANY ON FLOW-THROUGH MAY REMAIN ON FLOW-THROUGH.  THUS, IT IS SOLELY
A LIMITATION ON THE REQUIREMENT THAT A COMPANY MUST NORMALIZE IF IT
WANTS TO CONTINUE ACCELERATED DEPRECIATION WITH RESPECT TO PRE-1970
PROPERTY.  THIS IS ENTIRELY CONSISTENT WITH THE STRUCTURE OF ^ 167(L)
(1). 

NOR IS THE EXTENSION OF THE 180-DAY ELECTION TO POST-1969 EXPANSION
PROPERTY A LIMITING FACTOR.  THE "REASONABLE" ALLOWANCE FOR
DEPRECIATION OF POST-1969 PROPERTY AS USED IN ^ 167(L) (2) INCLUDES IN
SUBPARAGRAPH (C) "THE APPLICABLE 1968 METHOD, IF, WITH RESPECT TO ITS
PRE-1970 PUBLIC UTILITY PROPERTY OF THE SAME (OR SIMILAR) KIND MOST
RECENTLY PLACED IN SERVICE, THE TAXPAYER USED A FLOW-THROUGH METHOD OF
ACCOUNTING FOR ITS JULY 1969 ACCOUNTING PERIOD."  BUT ^ 167(L) (4) (A)
PROVIDES THAT WHERE THE TAXPAYER MAKES AN ELECTION WITHIN THE 180-DAY
PERIOD, PARAGRAPH (2) (C) SHALL NOT APPLY WITH RESPECT TO ANY POST-1969
PUBLIC UTILITY PROPERTY "TO THE EXTENT THAT SUCH PROPERTY CONSTITUTES
PROPERTY WHICH INCREASES THE PRODUCTIVE OR OPERATIONAL CAPACITY OF THE
TAXPAYER' AND DOES NOT REPRESENT "THE REPLACEMENT OF EXISTING
CAPACITY." 

THUS, THE ACT RECOGNIZES WAYS FOR A UTILITY TO ABANDON FLOW-THROUGH
WITH RESPECT TO EXISTING PROPERTY.  A UTILITY CANNOT DO SO ON ITS OWN;
THE OVERRIDING AUTHORITY IS IN THE FEDERAL POWER COMMISSION.  THE STAFF
OF THE JOINT COMMITTEE ON INTERNAL REVENUE TAXATION PREPARED A GENERAL
EXPLANATION OF THIS TAX MEASURE /18/  IN WHICH IT STATED: 

"IF THE TAXPAYER WAS TAKING ACCELERATED DEPRECIATION AND FLOWING
THROUGH TO ITS CUSTOMERS THE BENEFITS OF THE DEFERRED TAXES AS OF
AUGUST 1, 1969, THEN THE TAXPAYER WOULD CONTINUE TO DO SO (EXCEPT FOR A
SPECIAL ELECTION PROCEDURE DISCUSSED BELOW), UNLESS THE APPROPRIATE
REGULATORY AGENCY PERMITS A CHANGE AS TO THAT PROPERTY." 

[[HC472'(ORIGINAL DOCUMENT PAGE 472)' 

THIS DOCUMENT GOES ON TO STATE /19/  THAT AS RESPECTS NEW PROPERTY A
UTILITY ON FLOW-THROUGH MUST REMAIN ON FLOW-THROUGH "UNLESS THE
REGULATORY AGENCY PERMITS IT TO CHANGE (OR UNLESS THE ELECTION BELOW
APPLIES)." 

THIS DOCUMENT PROVIDES A COMPELLING CONTEMPORARY INDICATION THAT THE
FEDERAL POWER COMMISSION WAS NOT DEPRIVED OF ITS AUTHORITY TO PERMIT
ABANDONMENT OF FLOW-THROUGH APPLY TO THEIR EXPANSION PROPERTY. 

THE COURT OF APPEALS RELIED ON COMMENTS BOTH IN THE HOUSE /20/  AND
IN THE SENATE /21/  REPORTS OF THE DESIRE OF CONGRESS TO "FREEZE" THE
CURRENT PRACTICES RELATING TO DEPRECIATION ESPECIALLY AS RESPECTS "THE
MORE FLOURISHING UTILITY INDUSTRIES."  /22/ 

AS WE READ THE REPORTS, THE PURPOSE WAS TO FORESTALL SWITCHES TO
FASTER METHODS OF DEPRECIATION, TO GUARD AGAINST WIDESPREAD RATE
INCREASES, AND TO AVOID PUTTING SOME UTILITIES AT A COMPETITIVE
DISADVANTAGE.  BUT THE "FREEZE" WAS NOT PUT IN ABSOLUTE TERMS.  SHIFTS
FROM STRAIGHT-LINE TO ACCELERATED DEPRECIATION WERE OUTLAWED, AS WERE
SHIFTS FROM NORMALIZATION TO FLOW-THROUGH ON EXISTING PROPERTY.  WE
FIND NO TRACE OF A SUGGESTION THAT THE FEDERAL POWER COMMISSION WAS
DENIED AUTHORITY TO DETERMINE WHETHER ON PARTICULAR FACTS THE
ABANDONMENT OF FLOW-THROUGH BY A UTILITY WITHIN THE PARAMETER OF THE
TAX REFORM ACT OF 1969 WOULD BE IN THE PUBLIC INTEREST AS ENVISAGED BY
THE NATURAL GAS ACT, EVEN THOUGH IT MIGHT INCREASE RATES. 

[[HC473'(ORIGINAL DOCUMENT PAGE 473)'  THE "FREEZE" CERTAINLY WAS
DESIGNED TO COVER CHANGES TO FASTER METHODS OF TAX DEPRECIATION BUT NOT
CHANGES TO SLOWER METHODS OF TAX DEPRECIATION THAT THE COMMISSION MIGHT
PERMIT. 

THE COURT OF APPEALS SUSTAINED THE COMMISSION AS RESPECTS THE POST
1969 EXPANSION PROPERTY OF TEXAS GAS, AND REVERSED IT AS RESPECTS THE
PRE-1970 AND POST-1969 NONEXPANSION PROPERTY.  THE COURT OF APPEALS DID
NOT REACH THE VALIDITY OF THE COMMISSION'S ORDER, ASSUMING THE
COMMISSION WAS CORRECT IN ITS READING OF THE TAX REFORM ACT OF 1969, AS
WE THINK IT WAS.  THE COURT OF APPEALS DID, HOWEVER, STATE THAT ^
167(L) "SHOULD NOT BE CONSTRUED TO PREVENT" THE COMMISSION FROM FINDING
IN "EXTRAORDINARY CIRCUMSTANCES" THAT CONSUMER INTERESTS "WOULD BE
FURTHERED BY PERMITTING THE ABANDONMENT OF FLOW-THROUGH."  BUT IT
ADDED:  "IT IS CLEAR, HOWEVER, THAT SUCH CONSUMER INTERESTS WOULD NOT
BE FURTHERED BY PERMITTING TEXAS GAS TO ABANDON FLOW-THROUGH IN THE
CIRCUMSTANCES PRESENTED BY THE CASE AT BAR."  149 U.S. APP. D. C., AT
250, 462 F.2D, AT 865.  THE COMMISSION IN ITS PETITION FOR CERTIORARI
STATES THAT IN CONNECTION WITH THE MAIN QUESTION RAISED IT WOULD ARGUE,
IF THE PETITION WERE GRANTED, THAT ITS DECISION ON THE MERITS WAS
CORRECT IN ALL RESPECTS.  AND IN ITS BRIEF ON THE MERITS IT URGES US TO
DECIDE THE MERITS.  BUT BY STATUTE /23/  THE COURT OF APPEALS IS THE
TRIBUNAL WHERE REVIEW MUST BE SOUGHT; AND WE REMAND THE CASES TO IT FOR
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

[[HC474'(ORIGINAL DOCUMENT PAGE 474)'  WE NOTE IN CLOSING, HOWEVER,
THAT THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED IN TOTO.  ITS
HOLDING THAT THE CONSUMER INTERESTS WERE NOT FURTHERED BY THE
COMMISSION'S ACTION IS SHORT OF THE APPLICATION OF THE APPROPRIATE
STANDARD FOR REVIEW.  AS ALREADY NOTED, UNDER HOPE NATURAL GAS RATES
ARE "JUST AND REASONABLE" ONLY IF CONSUMER INTERESTS ARE PROTECTED AND
IF THE FINANCIAL HEALTH OF THE PIPELINE IN OUR ECONOMIC SYSTEM REMAINS
STRONG. 

              REVERSED AND REMANDED. 

/1/  SECTIONS 167(A) PROVIDES THAT "(THERE SHALL BE ALLOWED AS A
DEPRECIATION DEDUCTION A REASONABLE ALLOWANCE FOR THE EXHAUSTION, WEAR
AND TEAR (INCLUDING A REASONABLE ALLOWANCE FOR OBSOLESCENE)" OF
QUALIFIED PROPERTY.  SECTION 167(B) DEFINES "REASONABLE ALLOWANCE" TO
INCLUDE AN ALLOWANCE COMPUTED UNDER THE DECLINING BALANCE METHOD AND
THE SUM-OF-THE-YEARS-DIGITS METHOD, AS WELL AS THE STRAIGHT-LINE
METHOD.  UNDER THE DECLINING-BALANCE AND SUM-OF-THE-YEARS-DIGITS
METHOD, BOTH COMMONLY REFERRED TO AS ACCELERATED OR LIBERALIZED
DEPRECIATION METHODS, DEPRECIATION ALLOWANCES IN THE EARLY YEARS ARE
HIGHER THAN UNDER THE STRAIGHT-LINE METHOD, BUT STEADILY DECREASE OVER
THE USEFUL LIFE OF THE ASSET.  UNDER THE STRAIGHT-LINE METHOD, THE
DEPRECIATION ALLOWANCE FOR AN ASSET REMAINS EQUAL OVER ITS USEFUL
LIFE. 

/2/  FEDERAL INCOME TAXES ARE PROPERLY INCLUDED AS AN EXPENSE UNDER
THE COST-OF-SERVICE RATEMAKING UTILIZED BY THE COMMISSION IN THE
REGULATION OF RATES FOR SALES OF NATURAL GAS SUBJECT TO ITS
JURISDICTION UNDER THE NATURAL GAS ACT, 15 U.S.C. ^ 717 ET SEQ. SEE FPC
V. UNITED GAS PIPE LINE CO., 386 U.S. 237, 243. 

/3/  SEE H. R. REP. NO. 91 - 413, PT. 1, PP. 131 - 132; S. REP. NO.
91 - 552, P. 172. 

/4/  SEE H. R. REP. NO. 91 - 413, PT. 1, PP. 132 - 133; S. REP. NO.
91 - 552, P. 172. 

/5/  H. R. REP. NO. 91 - 413, PT. 1, P. 133. 

/6/  S. REP. NO. 91 - 552, P. 173. 

/7/  SEE H. R. CONF. REP. NO. 91 - 782, P. 313. 

/8/  SECTION 167(L) (3) (A) PROVIDES: 

"THE TERM 'PUBLIC UTILITY PROPERTY' MEANS PROPERTY USED
PREDOMINANTLY IN THE TRADE OR BUSINESS OF THE FURNISHING OR SALE OF -- 

"(I) ELECTRICAL ENERGY, WATER, OR SEWAGE DISPOSAL SERVICES, 

"(II) GAS OR STEAM THROUGH A LOCAL DISTRIBUTION SYSTEM. 

"(III) TELEPHONE SERVICES, OR OTHER COMMUNICATION SERVICES IF
FURNISHED OR SOLD BY THE COMMUNICATIONS SATELLITE CORPORATION FOR
PURPOSES AUTHORIZED BY THE COMMUNICATIONS SATELLITE ACT OF 1962 (47
U.S.C. 701), OR 

"(IV) TRANSPORATION OF GAS OR STEAM BY PIPELINE, "IF THE RATES FOR
SUCH FURNISHING OR SALE, AS THE CASE MAY BE, HAVE BEEN ESTABLISHED OR
APPROVED BY A STATE OR POLICTICAL SUBDIVISION THEREOF, BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES, OR BY A PUBLIC SERVICE OR PUBLIC
UTILITY COMMISSION OR OTHER SIMILAR BODY OF ANY STATE OR POLITICAL
SUBDIVISION THEREOF." 

/9/  IN ORDER NO. 404, 43 F. P. C. 740, REHEARING DENIED, 44 F. P.
C. 16, THE COMMISSION ANNOUNCED THAT AS A GENERAL POLICY IT WOULD
PERMIT UTILITIES MAKING THE ELECTION UNDER ^ 167(L) (4) (A) TO USE
ACCELERATED DEPRECIATION WITH NORMALIZATION WITH RESPECT TO THEIR
EXPANSION PROPERTY.  THE COURT OF APPEALS, IN THE SAME DECISION UNDER
REVIEW HERE, AFFIRMED THIS ORDER.  149 U.S. APP. D. C. 238, 250, 462
F.2D 853, 865.  THAT PART OF THE COURT'S DECISION IS NOT BEFORE US. 

/10/  THE COMMISSION'S ORDER READS:     "(A) IN THE COMPUTATION OF
ITS FEDERAL INCOME TAX ALLOWANCE FOR FOR RATEMAKING PURPOSES AS WELL AS
FOR ACCOUNTING PURPOSES, TEXAS GAS IS PERMITTED TO USE LIBERALIZED
DEPRECIATION WITH NORMALIZATION WITH RESPECT TO ITS PROPERTY OTHER THAN
THAT SUBJECT TO ELECTION UNDER SECTION 167(L) (4) (A) OF THE INTERNAL
REVENUE CODE AS AMENDED BY SECTION 441 OF THE TAX REFORM ACT OF 1969. 
SUCH ELECTION APPLIES TO PROPERTY CONSTRUCTED OR ACQUIRED ON OR AFTER
JANUARY 1, 1970, TO THE EXTENT IT INCREASES THE PRODUCTIVE OR
OPERATIONAL CAPACITY OF THE COMPANY AND DOES NOT REPRESENT THE
REPLACEMENT OF EXISTING CAPACITY.  TEXAS GAS MAY REFLECT ANY SUCH
CHANGE IN ITS RATES, AS WELL AS ANY CHANGE IN COSTS ARISING FROM ITS
PROPOSED ELECTION.  IN COMPUTING ITS COST-OF-SERVICE FOR RATEMAKING
PURPOSES BALANCES IN ACCOUNT 282 (DEFERRED TAX RESERVE ACCOUNT) SHOULD
CONTINUE TO BE DEDUCTED FROM THE RATE BASE."  43 F. P. C. 824, 831. 

/11/  MEMPHIS LIGHT, GAS & WATER DIVISION, A MUNICIPALLY OWNED
DISTRIBUTOR OF NATURAL GAS AND A CITY-GATE CUSTOMER OF TEXAS GAS, AND
THE PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK PETITIONED THE
COURT OF APPEALS FOR REVIEW OF THE COMMISSION'S OPINION NO. 578.  EACH
HAD FILED AN APPLICATION FOR REHEARING BEFORE THE COMMISSION WHICH WAS
DENIED IN OPINION NO. 578-A.  BOTH THE FEDERAL POWER COMMISSION (IN NO.
72 - 486) AND TEXAS GAS (IN NO. 72 - 488) PETITIONED THIS COURT FOR A
WRIT OF CERTIORARI. 

/12/  H. R. REP. NO. 91 - 413, PT. 1, P. 133. 

/13/  S. REP. NO. 91 - 552, PP. 173 - 174. 

"THE (SENATE) COMMITTEE AMENDMENTS, WHILE IN MOST RESPECTS THE SAME
AS THE HOUSE PROVISIONS, DIFFER IN ONE PRINCIPAL AREA.  THE AMENDMENTS
PERMIT AN ELECTION TO BE MADE WITHIN 180 DAYS AFTER THE DATE OF
ENACTMENT OF THE BILL FOR A UTILITY COVERED BY THIS PROVISION TO SHIFT
FROM THE FLOW-THROUGH TO THE STRAIGHT-LINE METHOD, WITH OR WITHOUT THE
PERMISSION OF THE APPROPRIATE REGULATORY AGENCY, OR PERMIT IT WITH THE
PERMISSION OF THE REGULATORY AGENCY TO SHIFT TO THE NORMALIZATION
METHOD (THAT IS, TO COME UNDER GENERAL RULES OF THE BILL). 

"THIS ELECTION APPLIES BOTH AS TO NEW AND EXISTING PROPERTY.  . .
SINCE THE COMPANY WOULD NO LONGER BE PERMITTED TO USE ACCELERATED
DEPRECIATION (UNLESS THE AGENCY LATER PERMITS IT TO NORMALIZE), THE
AGENCY WOULD NOT BE ABLE TO IMPUTE THE USE OF ACCELERATED DEPRECIATION
WITH FLOW-THROUGH."  (EMPHASIS ADDED.) 

/14/  H. R. CONF. REP. NO. 91 - 782, PP. 312 - 313. 

/15/  H. R. REP. NO. 91 - 413, PT. 1, P. 133. 

/16/  THE SECOND RULE, AS NOTED, PROVIDED, "IF THE TAXPAYER IS
TAKING ACCELERATED DEPRECIATION AND IS 'NORMALIZING' ITS DEFERRED
TAXES, THEN IT MUST GO TO THE STRAIGHT LINE METHOD UNLESS IT CONTINUES
TO NORMALIZE AS TO THAT PROPERTY."  IBID. 

/17/  THE THIRD RULE, AS NOTED, PROVIDED, "IF THE TAXPAYER IS TAKING
ACCELERATED DEPRECIATION AND FLOWING THROUGH TO ITS CUSTOMERS THE
BENEFITS OF THE DEFERRED TAXES, THEN THE TAXPAYER MUST CONTINUE TO DO
SO, UNLESS THE APPROPRIATE REGULATORY AGENCY PERMITS A CHANGE AS TO
THAT PROPERTY."  IBID. 

/18/  GENERAL EXPLANATION OF THE TAX REFORM ACT OF 1969, H. R.
13270, 91ST CONG., P. 151. 

/19/  IBID. 

/20/  H. R. REP. NO. 91 - 413, PT. 1, PP. 132 - 133. 

/21/  S. REP. NO. 91 - 552, P. 172 

/22/  IBID. 

/23/  SECTION 19(B) OF THE NATURAL GAS ACT, 15 U.S.C. ^ 717RB),
PROVIDES: 

"ANY PARTY TO A PROCEEDING UNDER THIS CHAPTER AGGRIEVED BY AN ORDER
ISSUED BY THE COMMISSION IN SUCH PROCEEDING MAY OBTAIN A REVIEW OF SUCH
ORDER IN THE COURT OF APPEALS OF THE UNITED STATES FOR ANY CIRCUIT
WHEREIN THE NATURAL-GAS COMPANY TO WHICH THE ORDER RELATES IS LOCATED
OR HAS ITS PRINCIPAL PLACE OF BUSINESS, OR IN THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA (CIRCUIT) . . ." 

SAMUEL HUNTINGTON ARGUED THE CAUSE FOR PETITIONER IN NO. 72 - 488. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, LEO E. FORQUER,
AND GEORGE W. MCHENRY, JR. CHRISTOPHER T. BOLAND ARGUED THE CAUSE FOR
PETITIONER IN NO. 72 - 488.  WITH HIM ON THE BRIEFS WERE MELVIN RICHTER
AND ROBERT O. KOCH. 

GEORGE E. MORROW ARGUED THE CAUSE FOR RESPONDENT MEMPHIS LIGHT, GAS
& WATER DIVISION IN BOTH CASES.  WITH HIM ON THE BRIEF WAS REUBEN
GOLDBERG.  RICHARD A. SOLOMON ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT PUBLIC SERVICE COMMISSION FOR THE STATE OF NEW YORK IN BOTH
CASES.  CHARLES F. WHEATLEY, JR., AND WILLIAM T. MILLER FILED A BRIEF
FOR RESPONDENT AMERICAN PUBLIC GAS ASSN. IN BOTH CASES.* 

*BRIEFS OF AMICI CURIAE URGING REVERSAL IN BOTH CASES WERE FILED BY
JEROME J. MCGRATH FOR THE INDEPENDENT NATURAL GAS ASSOCIATION OF
AMERICAN, AND BY THOMAS M. DEBEVOISE FOR JERSEY CENTRAL POWER & LIGHT
CO. ET AL.
..END :




















PREISER, CORRECTION COMMISSIONER, ET AL. V. RODRIGUEZ ET AL., 411
U.S. 475 



       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT 


    NO. 71 - 1369 ARGUED JANUARY 9, 1973--DECIDED MAY 7, 1973; 456

  F.2D 79, REVERSED.  RESPONDENTS WERE STATE PRISONERS WHO HAD

  ELECTED TO PARTICIPATE IN NEW YORK'S CONDITIONAL-RELEASE PROGRAM,

  BY WHICH A PRISIONER SERVING AN INDETERMINATE SENTENCE MAY EARN

  UP TO 10 DAYS PER MONTH GOOD-BEHAVIOR-TIME CREDITS TOWARD

  REDUCTION OF HIS MAXIMUM SENTENCE.  FOR IN-PRISON DISCIPLINARY

  REASONS THE GOOD-TIME CREDITS OF EACH WERE CANCELED.  EACH

  RESPONDENT BROUGHT A CIVIL RIGHTS ACTION UNDER 42 U.S.C. 1983, IN

  CONJUNCTION WITH A HABEAS CORPUS ACTION, CLAIMING THAT HIS

CREDITS WERE UNCONSTITUTIONALLY CANCELED AND SEEKING THEIR

 RESTORATION.  THE DISTRICT COURT IN EACH CASE VIEWED THE HABEAS

  CORPUS CLAIM MERELY AS AN ADJUNCT TO THE CIVIL RIGHTS ACTION,

  THUS OBVIATING THE NEED FOR EXHAUSTION OF STATE REMEDIES, AND ON

  THE MERITS RULED FOR THE RESPONDENT, A RULING THAT IN EACH CASE

  ENTITLED HIM TO IMMEDIATE RELEASE ON PAROLE.  THE COURT OF

  APPEALS CONSOLIDATED THE ACTIONS AND AFFIRMED.  HELD:  WHEN A

  STATE PRISIONER CHALLENGES THE FACT OR DURATION OF HIS PHYSICAL

  IMPRISONMENT AND BY WAY OF RELIEF SEEKS A DETERMINATION THAT HE

  IS ENTITLED TO IMMEDIATE RELEASE OR A SPEEDIER RELEASE, HIS SOLE

  FEDERAL REMEDY IS A WRIT OF HABEAS CORPUS.  PP. 488 - 499. 

      (A) ALTHOUGH THE BROAD LANGUAGE OF ^ 1983 SEEMS LITERALLY TO

  APPLY, CONGRESS' ENACTMENT OF THE SPECIFIC FEDERAL HABEAS CORPUS

  STATUTE, WITH ITS REQUIREMENT THAT A STATE PRISONER EXHAUST STATE

  REMEDIES, WAS INTENDED TO PROVIDE THE EXCLUSIVE MEANS OF RELIEF

  IN THIS TYPE OF SITUATION.  PP. 488 - 490. 

     (B) THE POLICY OF EXHAUSTION IN FEDERAL HABEAS CORPUS ACTIONS,

  WHICH IS ROOTED IN CONSIDERATIONS OF FEDERAL-STATE COMITY, HAS AS

  MUCH RELEVANCE IN AN ATTACK ON THE ACTIONS OF A STATE COURT; AND

  THAT POLICY APPLIES HERE WHERE RESPONDENTS SOUGHT NO DAMAGES, BUT

  ONLY A RULING THAT THEY WERE ENTITLED TO IMMEDIATE RELEASE OR A

  SPEEDIER RELEASE.  PP. 490 - 494. 

     (C) RECENT DECISIONS OF THE COURT RELIED ON BY RESPONDENTS,

  UPHOLDING STATE PRISONERS' CIVIL RIGHTS ACTIONS, ARE INAPPOSITE

  TO THE SITUATION HERE, FOR THE PRISONERS IN THOSE CASES

  CHALLENGED ONLY THE CONDITIONS OF THEIR CONFINEMENT, NOT THE FACT

  OR DURATION OF THAT CONFINEMENT ITSELF.  PP. 498 - 499. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BRENNAN,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ.,
JOINED, POST, P. 500. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

[[HC476'(ORIGINAL DOCUMENT PAGE 476)' 

THE RESPONDENTS IN THIS CASE WERE STATE PRISONERS WHO WERE DEPRIVED
OF GOOD-CONDUCT-TIME CREDITS BY THE NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES AS A RESULT OF DISICPLINARY PROCEEDINGS.  THEY
THEN BROUGHT ACTIONS IN A FEDERAL DISTRICT COURT, PURSUANT TO THE CIVIL
RIGHTS ACT OF 1871, 42 U.S.C. ^ 1983.  ALLEGING THAT THE DEPARTMENT HAD
ACTED UNCONSTITUTIONALLY IN DEPRIVING THEM OF THE CREDITS, THEY SOUGHT
INJUNCTIVE RELIEF TO COMPEL RESTORATION OF THE CREDITS, WHICH IN EACH
CASE WOULD RESULT IN THEIR IMMEDIATE RELEASE FROM CONFINEMENT IN
PRISON. 

[[HC477'(ORIGINAL DOCUMENT PAGE 477)'  THE QUESTION BEFORE US IS
WHETHER STATE PRISONERS SEEKING SUCH REDRESS MAY OBTAIN EQUITABLE
RELIEF UNDER THE CIVIL RIGHTS ACT, EVEN THOUGH THE FEDERAL HABEAS
CORPUS STATUTE, 28 U.S.C. ^ 2254, CLEARLY PROVIDES A SPECIFIC FEDERAL
REMEDY. 

THE QUESTION IS OF CONSIDERABLE PRACTICAL IMPORTANCE.  FOR IF A
REMEDY UNDER THE CIVIL RIGHTS ACT IS AVAILABLE, A PLAINTIFF NEED NOT
FIRST SEEK REDRESS IN A STATE FORUM.  MONROE V. PAPE, 365 U.S. 167, 183
(1961); MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668, 671 (1963); DAMICO
V. CALIFORNIA, 389 U.S. 416 (1967); KING V. SMITH, 392 U.S. 309, 312 N.
4 (1968); HOUGHTON V. SHAFER, 392 U.S. 639 (1968).  IF, ON THE OTHER
HAND, HABEAS CORPUS IS THE EXCLUSIVE FEDERAL REMEDY IN THESE
CIRCUMSTANCES, THEN A PLAINTIFF CANNOT SEEK THE INTERVENTION OF A
FEDERAL COURT UNTIL HE HAS FIRST SOUGHT AND BEEN DENIED RELIEF IN THE
STATE COURTS, IF A STATE REMEDY IS AVAILABLE AND ADEQUATE.  28 U.S.C. ^
2254(B). 

THE PRESENT CONSOLIDATED CASE ORIGINATED IN THREE SEPARATE ACTIONS,
BROUGHT INDIVIDUALLY BY THE THREE RESPONDENTS.  THE RESPONDENT
RODRIGUEZ, HAVING BEEN CONVICTED IN A NEW YORK STATE COURT OF PERJURY
AND ATTEMPTED LARCENY, WAS SENTENCED TO IMPRISONMENT FOR AN
INDETERMINATE TERM OF FROM ONE AND ONE-HALF TO FOUR YEARS.  UNDER NEW
YORK CORRECTION LAW ^ 803 AND PENAL LAW ^^ 70.30(4) (A), 70.40(1) (B),
A PRISONER SERVING AN INDETERMINATE SENTENCE MAY ELECT TO PARTICIPATE
IN A CONDITIONAL-RELEASE PROGRAM BY WHICH HE MAY EARN UP TO 10 DAYS PER
MONTH GOOD-BEHAVIOR-TIME CREDIT TOWARD REDUCTION OF THE MAXIMUM TERM OF
HIS SENTENCE.  RODRIGUEZ ELECTED TO PARTICIPATE IN THIS PROGRAM. 
OPTIMALLY, SUCH A PRISONER MAY BE RELEASED ON PAROLE AFTER HAVING
SERVED APPROXIMATELY TWO-THIRDS OF HIS MAXIMUM SENTENCE (20 DAYS OUT OF
EVERY 30); BUT ACCRUED GOOD-BEHAVIOR CREDITS SO EARNED MAY AT ANY TIME
BE WITHDRAWN, IN WHOLE OR IN PART, FOR BAD BEHAVIOR OR FOR VIOLATION OF
THE INSTITUTIONAL RULES. 

[[HC478'(ORIGINAL DOCUMENT PAGE 478)'  N. Y. CORRECTION LAW ^ 803(1). 

RODRIGUEZ WAS CHARGED IN TWO SEPARATE DISCIPLINARY ACTION REPORTS
WITH POSSESSION OF CONTRABAND MATERIAL IN HIS CELL.  THE DEPUTY WARDEN
DETERMINED THAT AS PUNISHMENT, 120 DAYS OF RODRIGUEZ' EARNED GOOD
CONDUCT-TIME CREDITS SHOULD BE CANCELED, AND THAT RODRIGUEZ SHOULD BE
PLACED IN SEGREGATION, WHERE HE REMAINED FOR MORE THAN 40 DAYS.  IN THE
"REMARKS" SECTION OF THE DEPUTY WARDEN'S DETERMINATION WAS A STATEMENT
THAT RODRIGUEZ HAD REFUSED TO DISCLOSE HOW HE HAD MANAGED TO OBTAIN
POSSESSION OF THE ITEMS IN QUESTION. 

RODRIGUEZ THEN FILED IN THE DISTRICT COURT A COMPLAINT PURSUANT TO ^
1983, COMBINED WITH A PETITION FOR A WRIT OF HABEAS CORPUS.  HE
ASSERTED THAT HE WAS NOT REALLY BEING PUNISHED FOR POSSESSION OF THE
CONTRABAND MATERIAL, BUT FOR REFUSAL TO DISCLOSE HOW HE HAD OBTAINED
IT, AND THAT HE HAD RECEIVED NO NOTICE OR HEARING ON THE CHARGES FOR
WHICH HE HAD OSTENSIBLY BEEN PUNISHED.  THUS, HE CONTENDED THAT HE HAD
BEEN DEPRIVED OF HIS GOOD-CONDUCT TIME CREDITS WITHOUT DUE PROCESS OF
LAW. 

AFTER A HEARING, THE DISTRICT COURT HELD THAT RODRIGUEZ' SUIT HAD
PROPERLY BEEN BROUGHT UNDER THE CIVIL RIGHTS ACT, THAT THE HABEAS
CORPUS CLAIM WAS "MERELY A PROPER ADJUNCT TO INSURE FULL RELIEF IF
(RODRIGUEZ) PREVAILS IN THE DOMINANT CIVIL RIGHTS CLAIM" 307 F. SUPP.
627, 628 - 629 (1969), AND THAT THEREFORE RODRIGUEZ WAS NOT REQUIRED TO
EXHAUST HIS STATE REMEDIES, AS HE WOULD HAVE HAD TO DO IF HE HAD SIMPLY
FILED A PETITION FOR HABEAS CORPUS.  ON THE MERITS, THE DISTRICT COURT
AGREED WITH RODRIGUEZ THAT THE QUESTIONING OF HIM BY PRISON OFFICIALS
RELATED SOLELY TO THE ISSUE OF HOW HE HAD OBTAINED THE CONTRABAND
MATERIALS, AND THAT HE HAD BEEN OSTENSIBLY PUNISHED FOR SOMETHING
DIFFERENT -- POSSESSION OF THE MATERIALS -- ON WHICH HE HAD HAD NO
NOTICE OR OPPORTUNITY TO ANSWER.  THIS, THE COURT FOUND, DENIED HIM DUE
PROCESS OF LAW, PARTICULARLY IN LIGHT OF THE FACT THAT THE PRISON
REGULATIONS PRESCRIBED NO PENALTY FOR FAILURE TO INFORM. 

[[HC479'(ORIGINAL DOCUMENT PAGE 479)'  THE DISTRICT COURT FURTHER
FOUND THAT THE PRISON COMMUTATION BOARD HAD FAILED TO FORWARD TO THE
COMMISSIONER OF CORRECTION WRITTEN REASONS FOR THE CANCELLATION OF
RODRIGUEZ' GOOD-CONDUCT TIME, AS REQUIRED BY FORMER N. Y. CORRECTION
LAW ^ 236, AND THAT THIS, TOO, HAD DEPRIVED RODRIGUEZ OF DUE PROCESS
AND EQUAL PROTECTION OF THE LAW.  ACCORDINGLY, THE COURT DECLARED THE
CANCELLATION OF 120 DAYS'  GOOD-BEHAVIOR-TIME CREDITS UNCONSTITUTIONAL,
AND DIRECTED THE COMMISSIONER OF CORRECTION TO RESTORE THOSE CREDITS TO
RODRIGUEZ.  SINCE, AT THAT TIME, RODRIGUEZ' CONDITIONAL-RELEASE DATE
HAD ALREADY PASSED, THE DISTRICT COURT'S ORDER ENTITLED HIM TO
IMMEDIATE RELEASE FROM PRISON ON PAROLE. 

THE COURT OF APPEALS REVERSED THIS DECISION BY A DIVIDED VOTE.  THE
APPELLATE COURT NOT ONLY DISAGREED WITH THE DISTRICT COURT ON THE
MERITS, BUT ALSO HELD THAT RODRIGUEZ' ACTION WAS REALLY A PETITION FOR
HABEAS CORPUS AND, AS SUCH, SHOULD NOT HAVE BEEN ENTERTAINED BY THE
DISTRICT COURT BECAUSE RODRIGUEZ HAD NOT EXHAUSTED HIS STATE REMEDIES
IN ACCORDANCE WITH ^ 2254(B).  AS THE COURT OF APPEALS PUT IT: 

"THE PRESENT APPLICATION, SINCE IT SEEKS RELEASE FROM CUSTODY, IS IN
FACT AN APPLICATION FOR HABEAS CORPUS.  '(RELEASE FROM PENAL CUSTODY IS
NOT AN AVAILABLE REMEDY UNDER THE CIVIL RIGHTS ACT.'  PEINADO V. ADULT
AUTHORITY OF DEPT. OF CORRECTIONS, 405 F.2D 1185, 1186 (9TH CIR.),
CERT. DENIED, 395 U.S. 968 (1969).  IN JOHNSON V. WALKER, 317 F.2D 418,
419 - 420 (5TH CIR. 1963) THE COURT SAID:  'USE OF THE CIVIL RIGHTS
STATUTES TO SECURE RELEASE OF PERSONS IMPRISONED BY STATE COURTS WOULD
THUS HAVE THE EFFECT OF REPEALING 18 U.S.C. ^ 2254; OF COURSE, SUCH WAS
NOT THE INTENT OF CONGRESS.'"  RODRIGUEZ V. MCGINNIS, 451 F.2D 730, 731
(1971).  THE JUDGMENT OF THE COURT OF APPEALS WAS SUBSEQUENTLY SET
ASIDE, AND THE CASE WAS REHEARED EN BANC, AS EXPLAINED BELOW. 

[[HC480'(ORIGINAL DOCUMENT PAGE 480)' 

THE RESPONDENT KATZOFF, WHO WAS SERVING A SENTENCE OF ONE TO THREE
YEARS IN PRISON FOLLOWING HIS CONVICTION FOR POSSESSION OF A DANGEROUS
WEAPON, ALSO ELECTED TO PARTICIPATE IN NEW YORK'S CONDITIONAL-RELEASE
PROGRAM.  DISCIPLINARY CHARGES WERE BROUGHT AGAINST HIM FOR MAKING
DEROGATORY COMMENTS ABOUT PRISON OFFICIALS IN HIS DIARY.  AS
PUNISHMENT, THE DEPUTY WARDEN DEPRIVED HIM OF 30 DAYS' GOOD-CONDUCT
TIME FOR THESE DIARY ENTRIES AND CONFINED HIM IN SEGREGATION FOR 57
DAYS.  KATZOFF ULTIMATELY LOST 50 DAYS'  GOOD-BEHAVIOR-TIME CREDITS --
30 DAYS DIRECTLY AND 20 ADDITIONAL DAYS BECAUSE HE WAS UNABLE TO EARN
ANY GOOD-CONDUCT TIME WHILE IN SEGREGATION.  HE BROUGHT A CIVIL RIGHTS
COMPLAINT UNDER ^ 1983, JOINED WITH A PETITION FOR HABEAS CORPUS, IN
FEDERAL DISTRICT COURT, ALLEGING THAT THE PRISON OFFICIALS HAD ACTED
UNCONSTITUTIONALLY. 

THE DISTRICT COURT HELD, IN AN UNREPORTED OPINION, THAT KATZOFF'S
FAILURE TO EXHAUST STATE REMEDIES WAS NO BAR TO HIS SUIT, SINCE IT WAS
A CIVIL RIGHTS ACTION AND THE PETITION FOR A WRIT OF HABEAS CORPUS WAS
ONLY AN INCIDENTAL ADJUNCT TO ASSURE ENFORCEMENT OF THE JUDGMENT.  ON
THE MERITS, THE DISTRICT COURT FOUND THAT THERE WAS NO PRISON
REGULATION AGAINST THE KEEPING OF A DIARY; THAT PUNISHMENT FOR ENTRIES
IN A PRIVATE DIARY VIOLATED KATZOFF'S CONSTITUTIONAL RIGHTS TO DUE
PROCESS, EQUAL PROTECTION, AND FREEDOM OF THOUGHT; AND THAT CONFINING
KATZOFF IN SEGREGATION FOR THIS OFFENSE CONSTITUTED CRUEL AND UNUSUAL
PUNISHMENT.  THE COURT, THEREFORE, ORDERED THAT THE 50 DAYS'  GOOD
BEHAVIOR-TIME CREDITS BE RESTORED TO KATZOFF, AND SINCE THIS
RESTORATION ENTITLED HIM TO IMMEDIATE RELEASE ON PAROLE, THE COURT
ORDERED SUCH RELEASE. 

THE COURT OF APPEALS REVERSED BY A DIVIDED VOTE.  WITHOUT REACHING
THE MERITS OF KATZOFF'S COMPLAINT, THE APPELLATE COURT HELD THAT HIS
ACTION WAS IN ESSENCE AN APPLICATION FOR HABEAS CORPUS SINCE IT SOUGHT
AND OBTAINED HIS IMMEDIATE RELEASE FROM CUSTODY, AND THAT THEREFORE HIS
COMPLAINT SHOULD HAVE BEEN DISMISSED BECAUSE KATZOFF HAD SOUGHT NO
RELIEF WHATEVER IN THE STATE COURTS AND HAD MADE NO SHOWING THAT AN
ADEQUATE STATE REMEDY WAS UNAVAILABLE. 

[[HC481'(ORIGINAL DOCUMENT PAGE 481)'  UNITED STATES EX REL. KATZOFF
V. MCGINNIS, 441 F.2D 558 (1971).  THIS JUDGMENT OF THE COURT OF
APPEALS WAS SUBSEQUENTLY SET ASIDE, AND THE CASE WAS REHEARD EN BANC,
AS EXPLAINED BELOW. 

THE RESPONDENT KRITSKY'S CASE IS SIMILAR.  WHILE SERVING A PRISON
SENTENCE OF 15 TO 18 YEARS UNDER A STATE COURT CONVICTION FOR ARMED
ROBBERY, HE WAS CHARGED BY PRISON OFFICIALS WITH BEING A LEADER IN A
PRISON-WIDE PROTEST DEMONSTRATION AND WITH ADVOCATING INSURRECTION
DURING THAT DEMONSTRATION.  WHEN BROUGHT BEFORE THE WARDEN AND ASKED
HOW HE WOULD PLEAD, KRITSKY STATED "NOT GUILTY."  THE WARDEN THEN
IMMEDIATELY AND SUMMARILY IMPOSED PUNISHMENT ON HIM -- DEPRIVATION OF
545 DAYS' GOOD-CONDUCT-TIME CREDITS, AND CONFINEMENT IN SEGREGATION FOR
FOUR AND ONE-HALF MONTHS, WHERE HE LOST ANOTHER 45 DAYS' GOOD TIME. 

KRITSKY SUBSEQUENTLY FILED A CIVIL RIGHTS ACTION, COMBINED WITH A
PETITION FOR HABEAS CORPUS, IN FEDERAL DISTRICT COURT, ALLEGING THAT
HIS SUMMARY PUNISHMENT HAD DEPRIVED HIM OF HIS GOOD-TIME CREDITS
WITHOUT DUE PROCESS OF LAW.  THE DISTRICT COURT FOUND KRITSKY'S
COMPLAINT TO BE A PROPER CIVIL RIGHTS ACTION, AND WENT ON TO RULE THAT
HE HAD BEEN DENIED DUE PROCESS BY THE IMPOSITION OF SUMMARY PUNISHMENT
AND BY THE FAILURE OF THE PRISON COMMUNTATION BOARD TO FILE WITH THE
COMMISSIONER WRITTEN REASONS FOR CANCELLATION OF KRITSKY'S GOOD-TIME
CREDITS, AS REQUIRED BY NEW YORK LAW.  313 F. SUPP. 1247 (1970). 
ACCORDINGLY, THE COURT ORDERED RESTORATION OF THE 590 DAYS' GOOD
CONDUCT-TIME CREDITS, WHICH ENTITLED KRITSKY TO IMMEDIATE RELEASE ON
PAROLE. 

AN APPEAL WAS ARGUED BEFORE A PANEL OF THE COURT OF APPEALS; BUT,
BEFORE DECISION, THAT COURT ORDERED THE CASE TO BE REHEARD EN BANC,
TOGETHER WITH THE RODRIGUEZ AND KATZOFF CASES. 

[[HC482'(ORIGINAL DOCUMENT PAGE 482)'  AFTER REHEARING EN BANC OF
THE THREE NOW-CONSOLIDATED CASES, THE COURT OF APPEALS, WITH THREE
DISSENTS, AFFIRMED THE JUDGMENTS OF THE DISTRICT COURT IN ALL OF THE
CASES "UPON CONSIDERATION OF THE MERITS AND UPON THE AUTHORITY OF
WILWORDING V. SWENSON, (404 U.S. 249) DECIDED BY THE SUPREME COURT OF
THE UNITED STATES ON DECEMBER 14, 1971."  RODRIGUEZ V. MCGINNIS, 456
F.2D 79, 80 (1972).  ALTHOUGH EIGHT JUDGES WROTE SEPARATE OPINIONS, IT
IS CLEAR THAT THE MAJORITY OF THE COURT RELIED PRIMARILY ON OUR OPINION
IN THE WILWORDING CASE, HOLDING THAT COMPLAINTS OF STATE PRISONERS
RELATING TO THE CONDITIONS OF THEIR CONFINEMENT WERE COGNIZABLE EITHER
IN FEDERAL HABEAS CORPUS OR UNDER THE CIVIL RIGHTS ACT, AND THAT AS
CIVIL RIGHTS ACTIONS THEY WERE NOT SUBJECT TO ANY REQUIREMENT OF
EXHAUSTION OF STATE REMEDIES. 

WE GRANTED CERTIORARI SUB NOM. OSWALD V. RODRIGUEZ, 407 U.S. 919, IN
ORDER TO CONSIDER THE BEARING OF THE WILWORDING DECISION UPON THE
SITUATION BEFORE US -- WHERE STATE PRISONERS HAVE CHALLENGED THE ACTUAL
DURATION OF THEIR CONFINEMENT ON THE GROUND THAT THEY HAVE BEEN
UNCONSTITUTIONALLY DEPRIVED OF GOOD-CONDUCT-TIME CREDITS, AND WHERE
RESTORATION OF THOSE CREDITS WOULD RESULT IN THEIR IMMEDIATE RELEASE
FROM PRISON OR IN SHORTENING THE LENGTH OF THEIR CONFINEMENT.  IN THAT
CONTEXT, THE QUESTION WHETHER A STATE PRISONER MAY BRING AN ACTION FOR
EQUITABLE RELIEF PURSUANT TO ^ 1983, OR WHETHER HE IS LIMITED TO THE
SPECIFIC REMEDY OF HABEAS CORPUS, PRESENTS AN UNRESOLVED AND IMPORTANT
PROBLEM IN THE ADMINISTRATION OF FEDERAL JUSTICE. 

THE PROBLEM INVOLVES THE INTERRELATIONSHIP OF TWO IMPORTANT FEDERAL
LAWS.  THE RELEVANT HABEAS CORPUS STATUTUES ARE 28 U.S.C. ^^ 2241 AND
2254.  SECTION 2241(C) PROVIDES THAT "(THE WRIT OF HABEAS CORPUS SHALL
NOT EXTEND TO A PRISONER UNLESS . . .(3) (HE IS IN CUSTODY IN VIOLATION
OF THE CONSTITUTION OR LAWS OR TREATIES OF THE UNITED STATES . . ." 

[[HC483'(ORIGINAL DOCUMENT PAGE 483)' 

     "(A) THE SUPREME COURT, A JUSTICE THEREOF, A CIRCUIT JUDGE, OR

  A DISTRICT COURT SHALL ENTERTAIN AN APPLICATION FOR A WRIT OF

  HABEAS CORPUS IN BEHALF OF A PERSON IN CUSTODY PURSUANT TO THE

  JUDGMENT OF A STATE COURT ONLY ON THE GROUND THAT HE IS IN

  CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS OR TREATIES OF

  THE UNITED STATES. 

      "(B) AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF
A

  PERSON IN CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL

  NOT BE GRANTED UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED

  THE REMEDIES AVAILABLE IN THE COURTS OF THE STATE CORRECTIVE

  PROCESS OR THE EXISTENCE OF CIRCUMSTANCES RENDERING SUCH PROCESS

  INEFFECTIVE TO PROTECT THE RIGHTS OF THE PRISONER. 

     "(C) AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE

  REMEDIES AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING

OF THIS SECTION, IF HE HAS THE RIGHT UNDER THE LAW OF THE STATE

  TO RAISE, BY ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

  /1/

THE CIVIL RIGHTS ACT, 42 U.S.C. ^ 1983, PROVIDES: 

     "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,

  REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY,

  SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN . . . OR OTHER

  PERSON . . . TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR

  IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE

  TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR

  OTHER PROPER PROCEEDING FOR REDRESS." 

[[HC484'(ORIGINAL DOCUMENT PAGE 484)' 

IT IS CLEAR, NOT ONLY FROM THE LANGUAGE OF ^ 2241(C) (3) AND ^
2254(A), BUT ALSO FROM THE COMMON-LAW HISTORY OF THE WRIT, THAT THE
ESSENCE OF HABEAS CORPUS IS AN ATTACK BY A PERSON IN CUSTODY UPON THE
LEGALITY OF THAT CUSTODY, AND THAT THE TRADITIONAL FUNCTION OF THE WRIT
IS TO SECURE RELEASE FROM ILLEGAL CUSTODY.  BY THE END OF THE 16TH
CENTURY, THERE WERE IN ENGLAND SEVERAL FORMS OF HABEAS CORPUS, OF WHICH
THE MOST IMPORTANT AND THE ONLY ONE WITH WHICH WE ARE HERE CONCERNED
WAS HABEAS CORPUS AD SUBJICIENDUM -- THE WRIT USED TO "INQUIRE) INTO
ILLEGAL DETENTION WITH A VIEW TO AN ORDER RELEASING THE PETITIONER." 
FAY V. NOIA, 372 U.S. 391, 399 N. 5 (1963).  /2/  WHETHER THE
PETITIONER HAD BEEN PLACED IN PHYSICAL CONFINEMENT BY EXECUTIVE
DIRECTION ALONE, /3/  OR BY ORDER OF A COURT, /4/  OR EVEN BY PRIVATE
PARTIES, /5/  HABEAS CORPUS WAS THE PROPER MEANS OF CHALLENGING THAT
CONFINEMENT AND SEEKING RELEASE.  INDEED, IN 1670, THE CHIEF JUSTICE OF
THE COMMON PLEAS WAS ABLE TO SAY, IN ORDERING THE IMMEDIATE DISCHARGE
OF A JUROR WHO HAD BEEN JAILED BY A TRIAL JUDGE FOR BRINGING IN A
VERDICT OF NOT GUILTY, THAT "(THE WRIT OF HABEAS CORPUS IS NOW THE MOST
USUAL REMEDY BY WHICH A MAN IS RESTORED AGAIN TO HIS LIBERTY, IF HE
HAVE BEEN AGAINST LAW DEPRIVED OF IT." 

[[HC485'(ORIGINAL DOCUMENT PAGE 485)'  BUSHELL'S CASE, VAUGHAN 135,
136, 124 ENG. REP. 1006, 1007. 

BY THE TIME THE AMERICAN COLONIES ACHIEVED INDEPENDENCE, THE USE OF
HABEAS CORPUS TO SECURE RELEASE FROM UNLAWFUL PHYSICAL CONFINEMENT,
WHETHER JUDICIALLY IMPOSED OR NOT, WAS THUS AN INTEGRAL PART OF OUR
COMMONLAW HERITAGE.  THE WRIT WAS GIVEN EXPLICIT RECOGNITION IN THE
SUSPENSION CLAUSE OF THE CONSTITUTION, ART. I, ^ 9, CL. 2; /6/  WAS
INCORPORATED IN THE FIRST CONGRESSIONAL GRANT OF JURISDICTION TO THE
FEDERAL COURTS, ACT OF SEPT. 24, 1789, C. 20, ^ 14, 1 STAT. 81 - 82;
AND WAS EARLY RECOGNIZED BY THIS COURT AS A "GREAT CONSTITUTIONAL
PRIVILEGE."  EX PARTE BOLLMAN, 4 CRANCH 75, 95 (1807).  SEE FAY V.
NOIA, SUPRA, AT 399 - 415. 

THE ORIGINAL VIEW OF A HABEAS CORPUS ATTACK UPON DETENTION UNDER A
JUDICIAL ORDER WAS A LIMITED ONE.  THE RELEVANT INQUIRY WAS CONFINED TO
DETERMINING SIMPLY WHETHER OR NOT THE COMMITTING COURT HAD BEEN
POSSESSED OF JURISDICTION.  E. G., EX PARTE KEARNEY, 7 WHEAT.  38
(1822); EX PARTE WATKINS, 3 PET. 193 (1830).  BUT, OVER THE YEARS, THE
WRIT OF HABEAS CORPUS EVOLVED AS A REMEDY AVAILABLE TO EFFECT DISCHARGE
FROM ANY CONFINEMENT CONTRARY TO THE CONSTITUTION OR FUNDAMENTAL LAW,
EVEN THOUGH IMPOSED PURSUANT TO CONVICTION BY A COURT OF COMPETENT
JURISDICTION.  SEE EX PARTE LANGE, 18 WALL.  163 (1874); EX PARTE
SIEBOLD, 100 U.S. 371 (1880); EX PARTE WILSON, 114 U.S. 417 (1885);
MOORE V. DEMPSEY, 261 U.S. 86 (1923); JOHNSON V. ZERBST, 304 U.S. 458
(1938); AND WALEY V. JOHNSTON, 316 U.S. 101 (1942).  SEE ALSO FAY V.
NOIA, SUPRA, AT 405 - 409, AND CASES CITED AT 409 N. 17. 

[[HC486'(ORIGINAL DOCUMENT PAGE 486)'  THUS, WHETHER THE
PETITIONER'S CHALLENGE TO HIS CUSTODY IS THAT THE STATUTE UNDER WHICH
HE STANDS CONVICTED IS UNCONSTITUTIONAL, AS IN EX PARTE SIEBOLD, SUPRA;
THAT HE HAS BEEN IMPRISONED PRIOR TO TRIAL ON ACCOUNT OF A DEFECTIVE
INDICTMENT AGAINST HIM, AS IN EX PARTE ROYALL, 117 U.S. 241 (1886);
THAT HE IS UNLAWFULLY CONFINED IN THE WRONG INSTITUTION, AS IN IN RE
BONNER, 151 U.S. 242 (1894), AND HUMPHREY V. CADEY, 405 U.S. 504
(1972); THAT HE WAS DENIED HIS CONSTITUTIONAL RIGHTS AT TRIAL, AS IN
JOHNSON V. ZERBST, SUPRA; THAT HIS GUILTY PLEAS WAS INVALID, AS IN VON
MOLTKE V. GILLIES, 332 U.S. 708 (1948); THAT HE IS BEING UNLAWFULLY
DETAINED BY THE EXECUTIVE OR THE MILITARY, AS IN PARISI V. DAVIDSON,
405 U.S. 34 (1972); OR THAT HIS PAROLE WAS UNLAWFULLY REVOKED, CAUSING
HIM TO BE REINCARCERATED IN PRISON, AS IN MORRISSEY V. BREWER, 408 U.S.
471 (1972) -- IN EACH CASE HIS GRIEVANCE IS THAT HE IS BEING UNLAWFULLY
SUBJECTED TO PHYSICAL RESTRAINT AND IN EACH CASE HABEAS CORPUS HAS BEEN
ACCEPTED AS THE SPECIFIC INSTRUMENT TO OBTAIN RELEASE FROM SUCH
CONFINEMENT.  /7/ 

IN THE CASE BEFORE US, THE RESPONDENTS' SUITS IN THE DISTRICT COURT
FELL SQUARELY WITHIN THIS TRADITIONAL SCOPE OF HABEAS CORPUS. 

[[HC487'(ORIGINAL DOCUMENT PAGE 487)'  THEY ALLEGED THAT THE
DEPRIVATION OF THEIR GOOD-CONDUCT-TIME CREDITS WAS CAUSING OR WOULD
CAUSE THEM TO BE IN ILLEGAL PHYSICAL CONFINEMENT, I. E., THAT ONE THEIR
CONDITIONAL-RELEASE DATE HAS PASSED, ANY FURTHER DETENTION OF THEM IN
PRISON WAS UNLAWFUL; AND THEY SOUGHT RESTORATION OF THOSE GOOD-TIME
CREDITS, WHICH, BY THE TIME THE DISTRICT COURT RULED ON THEIR
PETITIONS, MEANT THEIR IMMEDIATE RELEASE FROM PHYSICAL CUSTODY. 

EVEN IF THE RESTORATION OF THE RESPONDENTS' CREDITS WOULD NOT HAVE
RESULTED IN THEIR IMMEDIATE RELEASE, BUT ONLY IN SHORTENING THE LENGTH
OF THEIR ACTUAL CONFINEMENT IN PRISON, HABEAS CORPUS WOULD HAVE BEEN
THEIR APPROPRIATE REMEDY.  FOR RECENT CASES HAVE ESTABLISHED THAT
HABEAS CORPUS RELIEF IS NOT LIMITED TO IMMEDIATE RELEASE FROM ILLEGAL
CUSTODY, BUT THAT THE WRIT IS AVAILABLE AS WELL TO ATTACK FUTURE
CONFINEMENT AND OBTAIN FUTURE RELEASES.  IN PEYTON V. ROWE, 391 U.S. 54
(1968), THE COURT HELD THAT A PRISONER MAY ATTACK ON HABEAS THE SECOND
OF TWO CONSECUTIVE SENTENCES WHILE STILL SERVING THE FIRST.  THE COURT
POINTED OUT THAT THE FEDERAL COURTS POWER TO FASHION APPROPRIATE RELIEF
OTHER THAN IMMEDIATE RELEASE.  SINCE 1874, THE HABEAS CORPUS STATUTE
HAS DIRECTED THE COURTS TO DETERMINE THE FACTS AND DISPOSE OF THE CASE
SUMMARILY, 'AS LAW AND JUSTICE REQUIRE.'  REV. STAT. ^ 761 (1874),
SUPERSEDED BY 28 U.S.C. ^ 2243."  ID., AT 66 - 67.  SEE ALSO WALKER V.
WAINWRIGHT, 390 U.S. 335 (1968); CARAFAS V. LAVALLEE, 391 U.S. 234, 239
(1968); BRADEN V. 30TH JUDICIAL CIRCUIT COURT OF KENTUCKY, 410 U.S. 484
(1973).  SO, EVEN IF RESTORATION OF RESPONDENTS' GOOD-TIME CREDITS HAD
MERELY SHORTENED THE LENGTH OF THEIR CONFINEMENT, RATHER THAN REQUIRED
IMMEDIATE DISCHARGE FROM THAT CONFINEMENT, THEIR SUITS WOULD STILL HAVE
BEEN WITHIN THE CORE OF HABEAS CORPUS IN ATTACKING THE VERY DURATION OF
THEIR PHYSICAL CONFINEMENT ITSELF. 

[[HC488'(ORIGINAL DOCUMENT PAGE 488)'  IT IS BEYOND DOUBT, THEN,
THAT THE RESPONDENTS COULD HAVE SOUGHT AND OBTAINED FULLY EFFECTIVE
RELIEF THROUGH FEDERAL HABEAS CORPUS PROCEEDINGS.  /8/ 

ALTHOUGH CONCEDING THAT THEY COULD HAVE PROCEEDED BY WAY OF HABEAS
CORPUS, THE RESPONDENTS ARGUE THAT THE COURT OF APPEALS WAS CORRECT IN
HOLDING THAT THEY WERE NONETHELESS ENTITLED TO BRING THEIR SUITS UNDER
^ 1983, /9/  THEY ARGUE THAT SINCE THEIR COMPLAINTS PLAINLY CAME WITHIN
THE LITERAL TERMS OF THAT STATUTE, THERE IS NO JUSTIFIABLE REASON TO
EXCLUDE THEM FROM THE BROAD REMEDIAL PROTECTION PROVIDED BY THAT LAW. 
ACCORDING TO THE RESPONDENTS, STATE PRISONERS SEEKING RELIEF UNDER THE
CIVIL RIGHTS ACT SHOULD BE TREATED NO DIFFERENTLY FROM ANY OTHER CIVIL
RIGHTS PLAINTIFFS, WHEN THE LANGUAGE OF THE ACT CLEARLY COVERS THEIR
CAUSES OF ACTION. 

[[HC489'(ORIGINAL DOCUMENT PAGE 489)' 

THE BROAD LANGUAGE OF ^ 1983, HOWEVER, IS NOT CONCLUSIVE OF THE
ISSUE BEFORE US.  THE STATUTE IS A GENERAL ONE, AND, DESPITE THE
LITERAL APPLICABILITY OF ITS TERMS, THE QUESTION REMAINS WHETHER THE
SPECIFIC FEDERAL HABEAS CORPUS STATUTE, EXPLICITLY AND HISTORICALLY
DESIGNED TO PROVIDE THE MEANS FOR A STATE PRISONER TO ATTACK THE
VALIDITY OF HIS CONFINEMENT, MUST BE UNDERSTOOD TO BE THE EXCLUSIVE
REMEDY AVAILABLE IN A SITUATION LIKE THIS WHERE IT SO CLEARLY APPLIES. 
THE RESPONDENTS' COUNSEL ACKNOWLEDGED AT ORAL ARGUMENT THAT A STATE
PRISONER CHALLENGING HIS UNDERLYING CONVICTION AND SENTENCE ON FEDERAL
CONSTITUTIONAL GROUNDS IN A FEDERAL COURT IS LIMITED TO HABEAS CORPUS. 
IT WAS CONCEDED THAT HE CANNOT BRING A ^ 1983 ACTION, EVEN THOUGH THE
LITERAL TERMS OF ^ 1983 MIGHT SEEM TO COVER SUCH A CHALLENGE, BECAUSE
CONGRESS HAS PASSED A MORE SPECIFIC ACT TO COVER THAT SITUATION, AND,
IN DOING SO, HAS PROVIDED THAT A STATE PRISONER CHALLENGING HIS
CONVICTION MUST FIRST SEEK RELIEF IN A STATE FORUM, IF A STATE REMEDY
IS AVAILABLE.  IT IS CLEAR TO US THAT THE RESULT MUST BE THE SAME IN
THE CASE OF A STATE PRISONER'S CHALLENGE TO THE FACT OR DURATION OF HIS
CONFINEMENT, BASED, AS HERE, UPON THE ALLEGED UNCONSTITUTIONALITY OF
STATE ADMINISTRATIVE ACTION.  SUCH A CHALLENGE IS JUST AS CLOSE TO THE
CORE OF HABEAS CORPUS AS AN ATTACK ON THE PRISONER'S CONVICTION, FOR IT
GOES DIRECTLY TO THE CONSTITUTIONALITY OF HIS PHYSICAL CONFINEMENT
ITSELF AND SEEKS EITHER IMMEDIATE RELEASE FROM THAT CONFINEMENT OR THE
SHORTENING OF ITS DURATION. 

IN AMENDING THE HABEAS CORPUS LAWS IN 1948, CONGRESS CLEARLY
REQUIRED EXHAUSTION OF ADEQUATE STATE REMEDIES AS A CONDITION PRECEDENT
TO THE INVOCATION OF FEDERAL JUDICIAL RELIEF UNDER THOSE LAWS.  IT
WOULD WHOLLY FRUSTRATE EXPLICIT CONGRESSIONAL INTENT TO HOLD THAT THE
RESPONDENTS IN THE PRESENT CASE COULD EVADE THIS REQUIREMENT BY THE
SIMPLE EXPEDIENT OF PUTTING A DIFFERENT LABEL ON THEIR PLEADINGS. 

[[HC490'(ORIGINAL DOCUMENT PAGE 490)'  IN SHORT, CONGRESS HAS
DETERMINED THAT HABEAS CORPUS IS THE APPROPRIATE REMEDY FOR STATE
PRISONERS ATTACKING THE VALIDITY OF THE FACT OR LENGTH OF THEIR
CONFINEMENT, AND THAT SPECIFIC DETERMINATION MUST OVERRIDE THE GENERAL
TERMS OF ^ 1983. 

THE POLICY REASONS UNDERLYING THE HABEAS CORPUS STATUTE SUPPORT THIS
CONCLUSION.  THE RESPONDENTS CONCEDED THAT THE REASON WHY ONLY HABEAS
CORPUS CAN BE USED TO CHALLENGE A STATE PRISONER'S UNDERLYING
CONVICTION IS THE STRONG POLICY REQUIRING EXHAUSTION OF STATE REMEDIES
IN THAT SITUATION -- TO AVOID THE UNNECESSARY FRICTION BETWEEN THE
FEDERAL AND STATE COURT SYSTEMS THAT WOULD RESULT IF A LOWER FEDERAL
COURT UPSET A STATE COURT CONVICTION WITHOUT FIRST GIVING THE STATE
COURT SYSTEM AN OPPORTUNITY TO CORRECT ITS OWN CONSTITUTIONAL ERRORS. 
FAY V. NOIA, SUPRA, AT 419 - 420.  BUT THEY ARGUE THAT THIS CONCERN
APPLIES ONLY TO FEDERAL INTERFERENCE WITH STATE COURT CONVICTIONS; AND
TO SUPPORT THIS ARGUMENT, THEY QUOTE FROM EX PARTE ROYALL, SUPRA, THE
CASE THAT FIRST MANDATED EXHAUSTION OF STATE REMEDIES AS A PRECONDITION
TO FEDERAL HABEAS CORPUS: 

"THE INJUNCTION TO HEAR THE CASE SUMMARILY, AND THEREUPON 'TO DISPOSE
OF THE PARTY AS LAW AND JUSTICE REQUIRE' DOES NOT DEPRIVE THE COURT OF
DISCRETION AS TO THE TIME AND MODE IN WHICH IT WILL EXERT THE POWERS
CONFERRED UPON IT.  THAT DISCRETION SHOULD BE EXERCISED IN THE LIGHT OF
THE RELATIONS EXISTING, UNDER OUR SYSTEM OF GOVERNMENT, BETWEEN THE
JUDICIAL TRIBUNALS OF THE UNION AND OF THE STATES, AND IN RECOGNITION
OF THE FACT THAT THE PUBLIC GOOD REQUIRES THAT THOSE RELATIONS BE NOT
DISTURBED BY UNNECESSARY CONFLICT BETWEEN COURTS EQUALLY BOUND TO GUARD
AND PROTECT RIGHTS SECURED BY THE CONSTITUTION."  117 U.S., AT 251. 

IN THE RESPONDENTS' VIEW, THE WHOLE PURPOSE OF THE EXHAUSTION
REQUIREMENT, NOW CODIFIED IN ^ 2254(B), IS TO GIVE STATE COURTS THE
FIRST CHANCE AT REMEDYING THEIR OWN MISTAKES, AND THEREBY TO AVOID "THE
UNSEEMLY SPECTACLE OF FEDERAL DISTRICT COURTS TRYING THE REGULARITY OF
PROCEEDINGS HAD IN COURTS OF COORDINATE JURISDICTION." 

[[HC491'(ORIGINAL DOCUMENT PAGE 491)'  PARKER, LIMITING THE ABUSE OF
HABEAS CORPUS, 8 F. R. D. 171, 172 - 173 (1948).  THIS POLICY, THE
RESPONDENTS CONTEND, DOES NOT APPLY WHEN THE CHALLENGE IS NOT TO THE
ACTION OF A STATE COURT, BUT, AS HERE, TO THE ACTION OF A STATE
ADMINISTRATIVE BODY.  IN THAT SITUATION, THEY SAY, THE CONCERN WITH
AVOIDING UNNECESSARY INTERFERENCE BY ONE COURT WITH THE COURTS OF
ANOTHER SOVEREIGNTY WITH CONCURRENT POWERS, AND THE IMPORTANCE OF
GIVING STATE COURTS THE FIRST OPPORTUNITY TO CORRECT CONSTITUTIONAL
ERRORS MADE BY THEM, DO NOT APPLY; AND HENCE THE PURPOSE OF THE
EXHAUSTION REQUIREMENT OF THE HABEAS CORPUS STATUTE IS INAPPLICABLE. 

WE CANNOT AGREE.  THE RESPONDENTS, WE THINK, VIEW THE REASONS FOR
THE EXHAUSTION REQUIREMENT OF ^ 2254(B) FAR TOO NARROWLY.  THE RULE OF
EXHAUSTION IN FEDERAL HABEAS CORPUS ACTIONS IS ROOTED IN CONSIDERATIONS
OF FEDERAL-STATE COMITY.  THAT PRINCIPLE WAS DEFINED IN YOUNGER V.
HARRIS, 401 U.S. 37, 44 (1971), AS "A PROPER RESPECT FOR STATE
FUNCTIONS," AND IT HAS AS MUCH RELEVANCE IN AREAS OF PARTICULAR STATE
ADMINISTRATIVE CONCERN AS IT DOES WHERE STATE JUDICIAL ACTION IS BEING
ATTACKED.  THAT COMITY CONSIDERATIONS ARE NOT LIMITED TO CHALLENGES TO
THE VALIDITY OF STATE COURT CONVICTIONS IS EVIDENCED BY CASES SUCH AS
MORRISSEY V. BREWER, SUPRA, WHERE THE PETITIONER'S HABEAS CHALLENGE WAS
TO A STATE ADMINISTRATIVE DECISION TO REVOKE THEIR PAROLE, AND BRADEN
V. 30TH JUDICIAL CIRCUIT COURT OF KENTUCKY, SUPRA, WHERE THE
PETITIONER'S HABEAS ATTACK WAS ON THE FAILURE OF STATE PROSECUTORIAL
AUTHORITIES TO AFFORD HIM A SPEEDY TRIAL.     IT IS DIFFICULT TO
IMAGINE AN ACTIVITY IN WHICH A STATE HAS A STRONGER INTEREST, OR ONE
THAT IS MORE INTRICATELY BOUND UP WITH STATE LAWS, REGULATIONS, AND
PROCEDURES, THAN THE ADMINISTRATION OF ITS PRISONS. 

[[HC492'(ORIGINAL DOCUMENT PAGE 492)'  THE RELATIONSHIP OF STATE
PRISONERS AND THE STATE OFFICERS WHO SUPERVISE THEIR CONFINEMENT IS FAR
MORE INTIMATE THAN THAT OF A STATE AND A PRIVATE CITIZEN.  FOR STATE
PRISONERS, EATING, SLEEPING, DRESSING, WASHING, WORKING, AND PLAYING
ARE ALL DONE UNDER THE WATCHFUL EYE OF THE STATE, AND SO THE
POSSIBLITIES FOR LITIGATION UNDER THE FOURTEENTH AMENDMENT ARE
BOUNDLESS.  WHAT FOR A PRIVATE CITIZEN WOULD BE A DISPUTE WITH HIS
LANDLORD, WITH HIS EMPLOYER, WITH HIS TAILOR, WITH HIS NEIGHBOR, OR
WITH HIS BANKER BECOMES, FOR THE PRISONER, A DISPUTE WITH THE STATE. 
SINCE THESE INTERNAL PROBLEMS OF STATE PRISONS INVOLVE ISSUES SO
PECULIARLY WITHIN STATE AUTHORITY AND EXPERTISE, THE STATES HAVE AN
IMPORTANT INTEREST IN NOT BEING BYPASSED IN THE CORRECTION OF THOSE
PROBLEMS.  MOREOVER, BECAUSE MOST POTENTIAL LITIGATION INVOLVING STATE
PRISONERS ARISES ON A POTENTIAL LITIGATION INVOLVING STATE PRISONERS
ARISES ON A DAY-TO-DAY BASIS, IT IS MOST EFFICIENTLY AND PROPERLY
HANDLED BY THE STATE ADMINISTRATIVE BODIES AND STATE COURTS, WHICH ARE,
FOR THE MOST PART, FAMILIAR WITH THE GRIEVANCES OF STATE PRISONERS AND
IN A BETTER PHYSICAL AND PRACTICAL POSITION TO DEAL WITH THOSE
GRIEVANCES.  IN NEW YORK, FOR EXAMPLE, STATE JUDGES SIT ON A REGULAR
BASIS AT ALL BUT ONE OF THE STATE'S CORRECTIONAL FACILITIES, AND THUS
INMATES MAY PRESENT THEIR GRIEVANCES TO A COURT AT THE PLACE OF THEIR
CONFINEMENT, WHERE THE RELEVANT RECORDS ARE AVAILABLE AND WHERE
POTENTIAL WITNESSES ARE LOCATED.  THE STRONG CONSIDERATIONS OF COMITY
THAT REQUIRE GIVING A STATE COURT SYSTEM THAT HAS CONVICTED A DEFENDANT
THE FIRST OPPORTUNITY TO CORRECT ITS OWN ERRORS THUS ALSO REQUIRE
GIVING THE STATES THE FIRST OPPORTUNITY TO CORRECT THE ERRORS MADE IN
THE INTERNAL ADMINISTRATION OF THEIR PRISONS.  /10/ 

REQUIRING EXHAUSTION IN SITUATIONS LIKE THAT BEFORE US MEANS, OF
COURSE, THAT A PRISONER'S STATE REMEDY MUST BE ADEQUATE AND AVIALABLE,
AS INDEED ^ 2254(B) PROVIDES. 

[[HC493'(ORIGINAL DOCUMENT PAGE 493)'  THE RESPONDENTS IN THIS CASE
CONCEDE THAT NEW YORK PROVIDED THEM WITH AN ADEQUATE REMEDY FOR THE
RESTORATION OF THEIR GOOD-TIME CREDITS, THROUGH ^ 79-C OF THE NEW YORK
CIVIL RIGHTS LAW, WHICH EXPLICITLY PROVIDES FOR INJUNCTIVE RELIEF TO A
STATE PRISONER "FOR IMPROPER TREATMENT WHERE SUCH TREATMENT CONSTITUTES
A VIOLATION OF HIS CONSTITUTIONAL RIGHTS."  (SUPP. 1972 - 1973.) 

BUT WHILE CONCEDING THE AVILABILITY IN THE NEW YORK COURTS OF AN
OPPORTUNITY FOR EQUITABLE RELIEF, THE RESPONDENTS CONTEND THAT
CONFINING STATE PRISONERS TO FEDERAL HABEAS CORPUS, AFTER FIRST
EXHAUSTING STATE REMEDIES, COULD DEPRIVE THOSE PRISONERS OF ANY DAMAGES
REMEDY TO WHICH THEY MIGHT BE ENTITLED FOR THEIR MISTREATMENT, SINCE
DAMAGES ARE NOT AVAILABLE IN FEDERAL HABEAS CORPUS PROCEEDINGS, AND NEW
YORK PROVIDES NO DAMAGES REMEDY AT ALL FOR STATE PRISONERS.  IN THE
RESPONDENTS' VIEW, IF HABEAS CORPUS IS THE EXCLUSIVE FEDERAL REMEDY FOR
A STATE PRISONER ATTACKING THIS CONFINEMENT, DAMAGES MIGHT NEVER BE
OBTAINED, AT LEAST WHERE THE STATE MAKES NO PROVISION FOR THEM.  THEY
ARGUE THAT EVEN IF SUCH A PRISONER WERE TO BRING A SUBSEQUENT FEDERAL
CIVIL RIGHTS ACTION FOR DAMAGES, THAT ACTION COULD BE BARRED BY
PRINCIPLES OF RES JUDICATA WHERE THE STATE COURTS HAD PREVIOUSLY MADE
AN ADVERSE DETERMINATION OF HIS UNDERLYING CLAIM, EVEN THOUGH A FEDERAL
HABEAS COURT HAD LATER GRANTED HIM RELIEF ON HABEAS CORPUS. 

[[HC494'(ORIGINAL DOCUMENT PAGE 494)' 

THE ANSWER TO THIS CONTENTION IS THAT THE RESPONDENTS HERE SOUGHT NO
DAMAGES, BUT ONLY EQUITABLE RELIEF -- RESTORATION OF THEIR GOOD-TIME
CREDITS -- AND OUR HOLDING TODAY IS LIMITED TO THAT SITUATION.  IF A
STATE PRISONER IS SEEKING DAMAGES, HE IS ATTACKING SOMETHING OTHER THAN
THE FACT OR LENGTH OF HIS CONFINEMENT, AND HE IS SEEKING SOMETHING
OTHER THAN IMMEDIATE OR MORE SPEEDY RELEASE -- THE TRADITIONAL PURPOSE
OF HABEAS CORPUS.  IN THE CASE OF A DAMAGES CLAIM, HABEAS CORPUS IS NOT
AN APPROPRIATE OR AVAILABLE FEDERAL REMEDY.  ACCORDINGLY, AS
PETITIONERS THEMSELVES CONCEDE, A DAMAGES ACTION BY A STATE PRISONER
COULD BE BROUGHT UNDER THE CIVIL RIGHTS ACT IN FEDERAL COURT WITHOUT
ANY REQUIREMENT OF PRIOR EXHAUSTION OF STATE REMEDIES.  CF. RAY V.
FRITZ, 468 F.2D 586 (CA2 1972). 

THE RESPONDENTS NEXT ARGUE THAT TO REQUIRE EXHAUSTION OF STATE
REMEDIES IN A CASE SUCH AS THE ONE AT BAR WOULD DEPRIVE A STATE
PRISONER OF THE SPEEDY REVIEW OF HIS GRIEVANCE WHICH IS SO OFTEN
ESSENTIAL TO ANY EFFECTIVE REDRESS.  THEY CONTEND THAT IF, PRIOR TO
BRINGING AN APPLICATION FOR FEDERAL HABEAS CORPUS, A PRISONER MUST
EXHAUST STATE ADMINISTRATIVE REMEDIES AND THEN STATE JUDICIAL REMEDIES
THROUGH ALL AVAILABLE APPEALS, A VERY SIGNIFICANT PERIOD OF TIME MIGHT
ELAPSE BEFORE THE PRISONER COULD EVER GET INTO FEDERAL COURT.  BY THAT
TIME, NO MATTER HOW SWIFT AND EFFICIENT FEDERAL HABEAS CORPUS RELIEF
MIGHT BE, THE PRISONER MIGHT WELL HAVE SUFFERED IRREPARABLE INJURY AND
HIS GRIEVANCES MIGHT NO LONGER BE REMEDIABLE. 

IT IS TRUE THAT EXHAUSTION OF STATE REMEDIES TAKES TIME.  BUT THERE
IS NO REASON TO ASSUME THAT STATE PRISON ADMINISTRATORS OR STATE COURTS
WILL NOT ACT EXPEDITIOUSLY. 

[[HC495'(ORIGINAL DOCUMENT PAGE 495)'  INDEED, NEW REGULATIONS
ESTABLISHED BY THE NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES PROVIDE
FOR ADMINISTRATIVE REVIEW OF A PRISONER'S RECORD IN THE INSTITUTION
SHORTLY BEFORE THE EARLIEST POSSIBLE RELEASE DATE, 7 N. Y. CODES, RULES
& REGULATIONS' 261.3(B), /11/  AND STATE JUDGES IN NEW YORK ACTUALLY
SIT IN THE INSTITUTIONS TO HEAR PRISONER COMPLAINTS.  MOREOVER, ONCE A
STATE PRISONER ARRIVES IN FEDERAL COURT WITH HIS PETITION FOR HABEAS
CORPUS, THE FEDERAL HABEAS STATUTE PROVIDES FOR A SWIFT, FLEXIBLE, AND
SUMMARY DETERMINATION OF HIS CLAIM.  28 U.S.C. ^ 2243.  /12/  SEE ALSO
HARRIS V. NELSON, 394 U.S. 286 (1969); AND HENSLEY V. MUNICIAPL COURT,
ANTE, P. 345, AT 349 - 350. 

[[HC496'(ORIGINAL DOCUMENT PAGE 496)'  BY CONTRAST, THE FILING OF A
COMPLAINT PURSUANT TO ^ 1983 IN FEDERAL COURT INITIATES AN ORIGINAL
PLENARY CIVIL ACTION, GOVERNED BY THE FULL PANOPLY OF THE FEDERAL RULES
OF CIVIL PROCEDURE.  THAT SUCH A PROCEEDING, WITH ITS DISCOVERY RULES
AND OTHER PROCEDURAL FORMALITIES, CAN TAKE A SIGNIFICANT AMOUNT OF
TIME, VERY FREQUENTLY LONGER THAN A FEDERAL HABEAS CORPUS PROCEEDING,
IS DEMONSTRATED BY THE RESPONDENTS' ACTIONS IN THE PRESENT CASE. 
ALTHOUGH BOTH RODRIGUEZ AND KRITSKY INITIATED THEIR ACTIONS BEFORE
THEIR CONDITIONAL-RELEASE DATES, THE DISTRICT COURT DID NOT REACH ITS
DECISIONS UNTIL THREE AND 10 MONTHS LATER, RESPECTIVELY -- IN BOTH
CASES WELL AFTER THE CONDITIONAL-RELEASE DATES HAD PASSED.  ONLY IN
KATZOFF'S CASE WAS THERE A SPEEDY DETERMINATION, AND HIS ACTION WAS NOT
INITIATED UNTIL AFTER HIS ALLEGED RELEASE DATE. 

IN ANY EVENT, THE RESPONDENTS' TIME ARGUMENT WOULD LOGICALLY EXTEND
TO A STATE PRISONER WHO CHALLENGES THE CONSTITUTIONALITY OF A
CONVICTION THAT CARRIED A RELATIVELY SHORT SENTENCE; AND YET SUCH A
PRISONER IS CLEARLY COVERED BY ^ 2254(B). 

[[HC497'(ORIGINAL DOCUMENT PAGE 497)'  ARGUABLY, IN EITHER CASE, IF
THE PRISONER COULD MAKE OUT A SHOWING THAT, BECAUSE OF THE TIME FACTOR,
HIS OTHERWISE ADEQUATE STATE REMEDY WOULD BE INADEQUATE, A FEDERAL
COURT MIGHT ENTERTAIN HIS HABEAS CORPUS APPLICATION IMMEDIATELY, UNDER
^ 2254(B)'S LANGUAGE RELATING TO "THE EXISTENCE OF CIRCUMSTANCES
RENDERING SUCH (STATE) PROCESS INEFFECTIVE TO PROTECT THE RIGHTS OF THE
PRISONER."  BUT WE NEED NOT REACH THAT ISSUE HERE. 

PRINCIPLES OF RES JUDICATA ARE, OF COURSE, NOT WHOLLY APPLICABLE TO
HABEAS CORPUS PROCEEDINGS.  28 U.S.C. ^ 2254(D).  SEE SALINGER V.
LOISEL, 265 U.S. 224, 230 (1924).  HENCE, A STATE PRISONER IN THE
RESPONDENTS' SITUATION WHO HAS BEEN DENIED RELIEF IN THE STATE COURTS
IS NOT PRECLUDED FROM SEEKING HABEAS RELIEF ON THE SAME CLAIMS IN
FEDERAL COURT.  ON THE OTHER HAND, RES JUDICATA HAS BEEN HELD TO BE
FULLY APPLICABLE TO A CIVIL RIGHTS ACTION BROUGHT UNDER ^ 1983.  COOGAN
V. CINCINNATI BAR ASSN., 431 F.2D 1209, 1211 (CA6 1970); JENSON V.
OLSON, 353 F.2D 825 (CA8 1965); RHODES V. MEYER, 334 F.2D 709, 716 (CA8
1964); GOSS V. ILLINOIS, 312 F.2D 257 (CA7 1963).  ACCORDINGLY, THERE
WOULD BE AN INEVITABLE INCENTIVE FOR A STATE PRISONER TO PROCEED AT
ONCE IN FEDERAL COURT BY WAY OF A CIVIL RIGHTS ACTION, LEST HE LOSE HIS
RIGHT TO DO SO.  THIS WOULD HAVE THE UNFORTUNATE DUAL EFFECT OF DENYING
THE STATE PRISON ADMINISTRATION AND THE STATE COURTS THE OPPORTUNITY TO
CORRECT THE ERRORS COMMITTED IN THE STATE'S OWN PRISONS, AND OF
ISOLATING THOSE BODIES FROM AN UNDERSTANDING OF AND HOSPITALITY TO THE
FEDERAL CLAIMS OF STATE PRISONERS IN SITUATIONS SUCH AS THOSE BEFORE
US.  /13/  FEDERAL HABEAS CORPUS, ON THE OTHER HAND, SERVES THE
IMPORTANT FUNCTION OF ALLOWING THE STATE TO DEAL WITH THESE PECULIARLY
LOCAL PROBLEMS ON ITS OWN, WHILE PRESERVING FOR THE STATE PRISONER AN
EXPEDITIOUS FEDERAL FORUM FOR THE VINDICATION OF HIS FEDERALLY
PROTECTED RIGHTS, IF THE STATE HAS DENIED REDRESS. 

[[HC498'(ORIGINAL DOCUMENT PAGE 498)' 

THE RESPONDENTS PLACE A GREAT DEAL OF RELIANCE ON OUR RECENT
DECISIONS UPHOLDING THE RIGHT OF STATE PRISONERS TO BRING FEDERAL CIVIL
RIGHTS ACTIONS TO CHALLENGE THE CONDITIONS OF THEIR CONFINEMENT. 
COOPER V. PATE, 378 U.S. 546 (1964); HOUGHTON V. SHAFER, 392 U.S. 639
(1968); WILWORDING V. SWENSON, 404 U.S. 249 (1971); HAINES V. KERNER,
404 U.S. 519 (1972).  BUT NONE OF THE STATE PRISONERS IN THOSE CASES
WAS CHALLENGING THE FACT OR DURATION OF HIS PHYSICAL CONFINEMENT
ITSELF, AND NONE WAS SEEKING IMMEDIATE OR SPEEDIER RELEASE FROM THAT
CONFINEMENT -- THE HEART OF HABEAS CORPUS.  IN COOPER, THE PRISONER
ALLEGED THAT, SOLELY BECAUSE OF HIS RELIGIOUS BELIEFS, HE HAD BEEN
DENIED PERMISSION TO PURCHASE CERTAIN RELIGIOUS PUBLICATIONS AND HAD
BEEN DENIED OTHER PRIVILEGES ENJOYED BY HIS FELLOW PRISONERS.  IN
HOUGHTON, THE PRISONER'S CONTENTION WAS THAT PRISON AUTHORITIES HAD
VIOLATED THE CONSTITUTION BY CONFISCATING LEGAL MATERIALS WHICH HE HAD
ACQUIRED FOR PURSUING HIS APPEAL, BUT WHICH, IN VIOLATION OF PRISON
RULES, HAD BEEN FOUND IN THE POSSESSION OF ANOTHER PRISONER.  IN
WILWORDING, THE PRISONERS'  COMPLAINTS RELATED SOLELY TO THEIR LIVING
CONDITIONS AND DISCIPLINARY MEASURES WHILE CONFINED IN MAXIMUM
SECURITY.  AND IN HAINES, THE PRISONER CLAIMED THAT PRISON OFFICIALS
HAD ACTED UNCONSTITUTIONALLY BY PLACING HIM IN SOLITARY CONFINEMENT AS
A DISCIPLINARY MEASURE, AND HE SOUGHT DAMAGES FOR CLAIMED PHYSICAL
INJURIES SUSTAINED WHILE SO SEGREGATED.  IT IS CLEAR, THEN, THAT IN ALL
THOSE CASES, THE PRISONERS' CLAIMS RELATED SOLELY TO THE STATES'
ALLEGED UNCONSTITUTIONAL TREATMENT OF THEM WHILE IN CONFINEMENT. 

[[HC499'(ORIGINAL DOCUMENT PAGE 499)'  NONE SOUGHT, AS DID THE
RESPONDENTS HERE, TO CHALLENGE THE VERY FACT OF DURATION OF THE
CONFINEMENT ITSELF.  THOSE CASES, THEREFORE, MERELY ESTABLISH THAT A ^
1983 ACTION IS A PROPER REMEDY FOR A STATE PRISONER WHO IS MAKING A
CONSTITUTIONAL CHALLENGE TO THE CONDITIONS OF HIS PRISON LIFE, BUT NOT
TO THE FACT OR LENGTH OF HIS CUSTODY.  UPON THAT UNDERSTANDING, WE
REAFFIRM THOSE HOLDINGS.  CF. HUMPHREY V. CADY, SUPRA, AT 516 - 517, N.
18.  /14/ 

THIS IS NOT TO SAY THAT HABEAS CORPUS MAY NOT ALSO BE AVAILABLE TO
CHALLENGE SUCH PRISON CONDITIONS.  SEE JOHNSON V. AVERY, 393 U.S. 483
(1969); WILWORDING V. SWENSON, SUPRA, AT 251.  WHEN A PRISONER IS PUT
UNDER ADDITIONAL AND UNCONSTITUTIONAL RESTRAINTS DURING HIS LAWFUL
CUSTODY, IT IS ARGUABLE THAT HABEAS CORPUS WILL LIE TO REMOVE THE
RESTRAINTS MAKING THE CUSTODY ILLEGAL.  SEE NOTE, DEVELOPMENTS IN THE
LAW -- HABEAS CORPUS, 83 HARV. L. REV. 1038, 1084 (1970).  /15/ 

BUT WE NEED NOT IN THIS CASE EXPLORE THE APPROPRIATE LIMITS OF
HABEAS CORPUS AS AN ALTERNATIVE REMEDY TO A PROPER ACTION UNDER ^
1983. 

[[HC500'(ORIGINAL DOCUMENT PAGE 500)'  THAT QUESTION IS NOT BEFORE
US.  WHAT IS INVOLVED HERE IS THE EXTENT TO WHICH ^ 1983 IS A
PERMISSIBLE ALTERNATIVE TO THE TRADITIONAL REMEDY OF HABEAS CORPUS. 
UPON THAT QUESTION, WE HOLD TODAY THAT WHEN A STATE PRISONER IS
CHALLENGING THE VERY FACT OR DURATION OF HIS PHYSICAL IMPRISONMENT, AND
THE RELIEF HE SEEKS IS A DETERMINATION THAT HE IS ENTITLED TO IMMEDIATE
OR SPEEDIER RELEASE FROM THAT IMPRISONMENT, HIS SOLE FEDERAL REMEDY IS
A WRIT OF HABEAS CORPUS.  ACCORDINGLY, WE REVERSE THE JUDGMENT BEFORE
US.

              IT IS SO ORDERED. 

/1/  SEE ALSO 28 U.S.C. ^ 2243, QUOTED IN N. 12, INFRA. 

/2/  OTHER FORMS OF HABEAS CORPUS INCLUDE HABEAS CORPUS AD
RESPONDENDUM; AD SATISFACIENDUM; AD PROSEQUENDUM, TESTIFICANDUM,
DELIBERANDUM; AND AD FACIENDUM ET RECIPIENDUM.  SEE FAY V. NOIA, 372
U.S. 391, 399 N. 5 (1963).  BUT WHEN THE WORDS "HABEAS CORPUS" ARE USED
ALONE, THEY HAVE BEEN CONSIDERED A GENERIC TERM UNDERSTOOD TO REFER TO
THE COMMON-LAW WRIT OF HABEAS CORPUS AD SUBJICIENDUM, WHICH WAS THE
FORM TERMED THE "GREAT WRIT."  EX PARTE BOLLMAN, 4 CRANCH 75, 95
(1807).     /3/  SEE, E. G., DARNEL'S CASE, 3 HOSW.  ST. TR. 1 - 59 (K.
B. 1627); PETITION OF RIGHT, 3 CAR.  1, C. 1 (1627); HABEAS CORPUS ACT,
16 CAR.  L, C. 10, ^^ 3, 8 (1640).  SEE ALSO EX PARTE WELLS, 18 HOW. 
307 (1856); EX PARTE MILLIGAN, 4 WALL.  2 (1866); PARISI V. DAVIDSON,
405 U.U. 34 (1972). 

/4/  SEE, E. G., BUSHELL'S CASE, VAUGHAN 135, 124 ENG. REP. 1006
(1670); FAY V. NOIA, SUPRA. 

/5/  SEE, E. G., REX V. CLARKSON, 1 STRANGE 444, 93 ENG. REP. 625
(K.B. 1721); FORD V. FORD, 371 U.S. 187 (1962). 

/6/  "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE
SUSPENDED, UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC
SAFETY MAY REQUIRE IT."     /7/  IT WAS NOT UNTIL QUITE RECENTLY THAT
HABEAS CORPUS WAS MADE AVAILABLE TO CHALLENGE LESS OBVIOUS RESTRAINTS. 
IN 1963, THE COURT HELD THAT A PRISONER RELEASED ON PAROLE FROM
IMMEDIATE PHYSICAL CONFINEMENT WAS NONETHELESS SUFFICIENTLY RESTRAINED
IN HIS FREEDOM AS TO BE IN CUSTODY FOR PURPOSES OF FEDERAL HABEAS
CORPUS.  JONES V. CUNNINGHAM, 371 U.S. 236.  IN CARAFAS V. LAVALLEE,
391 U.S. 234 (1968), THE COURT FOR THE FIRST TIME DECIDED THAT ONCE
HABEAS CORPUS JURISDICTION HAS ATTACHED, IT IS NOT DEFEATED BY THE
SUBSEQUENT RELEASE OF THE PRISONER.  AND JUST THIS TERM, IN HENSLEY V.
MUNICIPAL COURT, ANTE, P. 345, WE HELD THAT A PERSON, WHO, AFTER
CONVICTION, IS RELEASED ON BAIL OR ON HIS OWN RECOGNIZANCE, IS "IN
CUSTODY" WITHIN THE MEANING OF THE FEDERAL HABEAS CORPUS STATUTE.  BUT
THOSE CASES MARKED NO MORE THAN A LOGICAL EXTENSION OF THE TRADITIONAL
MEANING AND PURPOSE OF HABEAS CORPUS -- TO EFFECT RELEASE FROM ILLEGAL
CUSTODY. 

/8/  OUR BROTHERS IN DISSENT STATE THAT THE RESPONDENTS' CLAIMS
"COULD NOT, IN ALL LIKELIHOOD, HAVE BEEN HEARD ON HABEAS CORPUS AT THE
TIME THE PRESENT HABEAS CORPUS STATUTE WAS ENACTED IN 1867, OR AT THE
TIME THE PRESENT HABEAS CORPUS STATUTE WAS ENACTED IN 1867, OR AT THE
TIME THE EXHAUSTION DOCTRINE WAS FIRST ANNOUNCED IN EX PARTE ROYALL,
117 U.S. 241 (1886), OR AT THE TIME THE REQUIREMENT WAS CODIFIED IN
1948 . . ."  POST, AT 512 - 513.  (FOOTNOTES OMITTED.)  THIS STATEMENT
IS APPRENTLY BASED ON THE ASSUMPTION THAT, IN THOSE YEARS, THE
RESPONDENTS' HABEAS ACTIONS WOULD HAVE BEEN BARRED BY THE "PREMATURITY"
DOCTRINE, WHICH PRECLUDED HABEAS RELIEF THAT WOULD HAVE MERELY REDUCED
THE LENGTH OF THE PRISONER'S CONFINEMENT RATHER THAN RESULTING IN HIS
IMMEDIATE RELEASE, AND WHICH WAS NOT REJECTED UNTIL 1968, PEYTON V.
ROWE, 391 U.S. 54.  WE NOTE, HOWEVER, THAT THE RESPONDENT KATZOFF
INITIATED HIS ACTION MORE THAN A MONTH AFTER HIS ALLEGED RELEASE DATE,
AND THUS HIS CLAIM, IF ACCEPTED, ENTITLED HIM TO IMMEDIATE RELEASE EVEN
AS OF THE DATE ON WHICH HE BROUGHT SUIT.  ALTHOUGH RODRIGUEZ INITIATED
HIS ACTION 15 DAYS BEFORE HIS ALLEGED RELEASE DATE, AND KRITSKY SIX
MONTHS BEFORE SUCH DATE, IN BOTH CASES THOSE DATES HAD LONG PASSED AT
THE TIME OF THE DISTRICT COURT'S DECISIONS, AND THESE RESPONDENTS WERE
THUS ENTITLED TO IMMEDIATE RELEASE AT THAT TIME.  IN ANY EVENT, THE
NATURE OF THE RESPONDENTS' SUITS WAS AN ATTACK ON THE LEGALITY OF THEIR
PHYSICAL CONFINEMENT ITSELF; AND TO DEAL WITH SUCH ATTACKS ON PHYSICAL
CUSTODY, HOWEVER IMPOSED AND WHETHER OR NOT RELATED TO CONVICTION BY A
COURT, IS THE LONG-ESTABLISHED FUNCTION OF HABEAS CORPUS.  SEE SUPRA,
AT 484 - 486. 

/9/  SEE SUPRA, AT 483 - 484. 

/10/  THE DISSENT ARGUES THAT THE RESPONDENTS' ATTACKS ON THE
ACTIONS OF THE PRISON ADMINISTRATION HERE ARE NO DIFFERENT, IN TERMS OF
THE POTENTIAL FOR EXACERBATING FEDERAL-STATE RELATIONS, FROM THE
ATTACKS MADE BY THE PETITIONERS IN MCNEESE V. BOARD OF EDUCATION, 373
U.S. 668 (1963), DAMICO V. CALIFORNIA, 389 U.S. 416 (1967), AND MONROE
V. PAPE, 365 U.S. 167 (1961), ON THE VARIOUS STATE ADMINISTRATIVE
ACTIONS THERE.  THUS, IT IS SAID, SINCE EXHAUSTION OF STATE REMEDIES
WAS NOT REQUIRED IN THOSE CASES, IT IS ANOMALOUS TO REQUIRE IT HERE. 
POST, AT 522.  THE ANSWER, OF COURSE, IS THAT IN THOSE CASES, BROUGHT
PURSUANT TO ^ 1983, NO OTHER, MORE SPECIFIC FEDERAL STATUTE WAS
INVOLVED THAT MIGHT HAVE REFLECTED A DIFFERENT CONGRESSIONAL INTENT. 
IN THE PRESENT CASE, HOWEVER, THE RESPONDENTS'  ACTIONS FELL SQUARELY
WITHIN THE TRADITIONAL PURPOSE OF FEDERAL HABEAS CORPUS, AND CONGRESS
HAS MADE THE SPECIFIC DETERMINATION IN ^ 2254(B) THAT REQUIRING THE
EXHAUSTION OF ADEQUATE STATE REMEDIES IN SUCH CASES WILL BEST SERVE THE
POLICIES OF FEDERALISM. 

/11/ THAT SECTION PROVIDES THAT EACH INMATE'S FILE "SHALL BE
CONSIDERED NOT MORE THAN THREE NOR LESS THAN TWO MONTHS BEFORE THE
EARLIEST POSSIBLE DATE HE WOULD BE ENTITLED TO CONSIDERATION FOR PAROLE
OR CONDITIONAL OR OTHER RELEASE IF THAT DATE DEPENDS UPON THE AMOUNT OF
GOOD BEHAVIOR ALLOWANCE TO BE GRANTED (BASED UPON THE ASSUMPTION THAT
HE HAS EARNED ALL GOOD BEHAVIOR ALLOWANCES THAT CAN BE GRANTED)." 

/12/  THAT SECTION PROVIDES 

"A COURT, JUSTICE OR JUDGE ENTERTAINING AN APPLICATION FOR A WRIT OF
HABEAS CORPUS SHALL FORTHWITH AWARD THE WRIT OR ISSUE AN ORDER
DIRECTING THE RESPONDENT TO SHOW CAUSE WHY THE WRIT SHOULD NOT BE
GRANTED, UNLESS IT APPEARS FROM THE APPLICATION THAT THE APPLICANT OR
PERSON DETAINED IS NOT ENTITLED THERETO. 

"THE WRIT, OR ORDER TO SHOW CAUSE SHALL BE DIRECTED TO THE PERSON
HAVING CUSTODY OF THE PERSON DETAINED.  IT SHALL BE RETURNED WITHIN
THREE DAYS UNLESS FOR GOOD CAUSE ADDITIONAL TIME, NOT EXCEEDING TWENTY
DAYS, IS ALLOWED. 

"THE PERSON TO WHOM THE WRIT OR ORDER IS DIRECTED SHALL MAKE A
RETURN CERTIFYING THE TRUE CAUSE OF THE DETENTION. 

"WHEN THE WRIT OR ORDER IS RETURNED A DAY SHALL BE SET FOR HEARING,
NOT MORE THAN FIVE DAYS AFTER THE RETURN UNLESS FOR GOOD CAUSE
ADDITIONAL TIME IS ALLOWED. 

"UNLESS THE APPLICATION FOR THE WRIT AND THE RETURN PRESENT ONLY
ISSUES OF LAW THE PERSON TO WHOM THE WRIT IS DIRECTED SHALL BE REQUIRED
TO PRODUCE AT THE HEARING THE BODY OF THE PERSON DETAINED. 

"THE APPLICANT OR THE PERSON DETAINED MAY, UNDER OATH, DENY ANY OF
THE FACTS SET FORTH IN THE RETURN OR ALLEGE ANY OTHER MATERIAL FACTS. 

"THE RETURN AND ALL SUGGESTIONS MADE AGAINST IT MAY BE AMENDED, BY
LEAVE OF COURT, BEFORE OR AFTER BEING FILED. 

"THE COURT SHALL SUMMARILY HEAR AND DETERMINE THE FACTS, AND DISPOSE
OF THE MATTER AS LAW AND JUSTICE REQUIRE."  SEE ALSO 28 U.S.C. ^
2254(E): 

IF THE APPLICANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE ADDUCED
IN SUCH STATE COURT PROCEEDING TO SUPPORT THE STATE COURT'S
DETERMINATION OF A FACTUAL ISSUE MADE THEREIN, THE APPLICANT, IF ABLE,
SHALL PRODUCE THAT PART OF THE RECORD PERTINENT TO A DETERMINATION OF
THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT SUCH DETERMINATION.  IF THE
APPLICANT, BECAUSE OF INDIGENCY OR OTHER REASON IS UNABLE TO PRODUCE
SUCH PART OF THE RECORD, THEN THE STATE SHALL PRODUCE SUCH PART OF THE
RECORD AND THE FEDERAL COURT SHALL DIRECT THE STATE TO DO SO BY ORDER
DIRECTED TO AN APPROPRIATE STATE OFFICIAL.  IF THE STATE CANNOT PROVIDE
SUCH PERTINENT PART OF THE RECORD, THEN THE COURT SHALL DETERMINE UNDER
THE EXISTING FACTS AND CIRCUMSTANCES WHAT WEIGHT SHALL BE GIVEN TO THE
STATE COURT'S FACTUAL DETERMINATION." 

/13/  THIS ISOLATION, OF COURSE, WILL NOT OCCUR IF THE PRISONER IS
REQUIRED TO PROCEED BY WAY OF FEDERAL HABEAS CORPUS, WITH ITS
EXHAUSTION REQUIREMENT.  FOR "EXHAUSTION PRESERVES THE ROLE OF THE
STATE COURTS IN THE APPLICATION AND ENFORCEMENT OF FEDERAL LAW:  EARLY
FEDERAL INTERVENTION IN STATE . . . PROCEEDINGS WOULD TEND TO REMOVE
FEDERAL QUESTIONS FROM THE STATE COURTS, ISOLATE THOSE COURTS FROM
CONSTITUTIONAL ISSUES, AND THEREBY REMOVE THEIR UNDERSTANDING OF AND
HOSPITALITY TO FEDERALLY PROTECTED INTERESTS."  NOTE, DEVELOPMENTS IN
THE LAW -- HABEAS CORPUS, 83 HARV. L. REV. 1038, 1094 (1970). 

/14/  IF A PRISONER SEEKS TO ATTACK BOTH THE CONDITIONS OF HIS
CONFINEMENT AND THE FACT OR LENGTH OF THAT CONFINEMENT, HIS LATTER
CLAIM, UNDER OUR DECISION TODAY, IS COGNIZABLE ONLY IN FEDERAL HABEAS
CORPUS, WITH ITS ATTENDANT REQUIREMENT OF EXHAUSTION OF STATE
REMEDIES.  BUT, CONSISTENT WITH OUR PRIOR DECISIONS, THAT HOLDING IN NO
WAY PRECLUDES HIM FROM SIMULTANEOUSLY LITIGATING IN FEDERAL COURT,
UNDER ^ 1983, HIS CLAIM RELATING TO THE CONDITIONS OF HIS CONFINEMENT. 

/15/  THE PARTIES DISAGREE AS TO THE ORIGINAL REASON FOR THE
EMERGENCE OF CONCURRENT FEDERAL REMEDIES IN PRISON CONDITION CASES. 
ACCORDING TO THE PETITIONERS, THE PARALLEL DEVELOPMENT REFLECTS THE
FACT THAT PRIOR TO THE COURT'S DECISIONS IN JONES V. CUNNINGHAM, SUPRA,
CARAFAS V. LAVALLEE, SUPRA, AND JOHNSON V. AVERY, 393 U.S. 483 (1969),
THE LIMITS OF THE CONCEPT OF CUSTODY FOR PURPOSES OF HABEAS CORPUS WERE
UNCERTAIN, AND SO THE CLEAREST REMEDY FOR PRISONERS CHALLENGING THEIR
CONDITIONS WAS THROUGH A CIVIL RIGHTS ACTION.  THE RESPONDENTS TAKE THE
CONVERSE POSITION -- THAT HABEAS CORPUS MAY ORIGINALLY HAVE BEEN MADE
AVAILABLE FOR THESE CHALLENGES BECAUSE THERE WAS NO OTHER REMEDY FOR IN
PRISON ABUSES BEFORE THE RESURRECTION OF ^ 1983 IN MONROE V. PAPER,
SUPRA, AND THE AFFIRMATION OF ITS AVAILABILITY FOR PRISONERS IN COOPER
V. PATE, 378 U.S. 546 (1964), AND HOUGHTON V. SHAFER, 392 U.S. 639
(1968). 

[[DOP 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE QUESTION PRESENTED BY THIS CASE IS ONE THAT I, LIKE THE COURT OF
APPEALS, HAD THOUGHT ALREADY RESOLVED BY OUR DECISION LAST TERM IN
WILWORDING V. SWENSON, 404 U.S. 249 (1971).  WE HELD THERE THAT THE KU
KLUX KLAN ACT OF 1871, /1/  42 U.S.C. ^ 1983; 28 U.S.C. ^ 1343(3),
CONFERS JURISDICTION ON THE UNITED STATES DISTRICT COURTS TO ENTERTAIN
A STATE PRISONER'S APPLICATION FOR INJUNCTIVE RELIEF AGAINST ALLEGEDLY
UNCONSTITUTIONAL CONDITIONS OF CONFINEMENT.  SEE ALSO HUMPHREY V. CADY,
405 U.S. 504, 516 - 517, N. 18 (1972); HOUGHTON V. SHAFER, 392 U.S. 639
(1968).  AT THE SAME TIME, WE HELD THAT "(THE REMEDY PROVIDED BY THESE
ACTS 'IS SUPPLEMENTARY TO THE STATE REMEDY, AND THE LATTER NEED NOT BE
FIRST SOUGHT AND REFUSED BEFORE THE FEDERAL ONE IS INVOKED."  MONROE V.
PAPER, 365 U.S. 167, 183 (1961); MCNEESE V. BOARD OF EDUCATION, 373
U.S. 668 (1963); DAMICO V. CALIFORNIA, 389 U.S. 416 (1967).  STATE
PRISONERS ARE NOT HELD TO ANY STRICTER STANDARD OF EXHAUSTION THAN
OTHER CIVIL RIGHTS PLAINTIFFS."  WILWORDING V. SWENSON, SUPRA, AT 251. 

REGRETTABLY, THE COURT TODAY EVISCERATES THAT PROPOSITION BY DRAWING
A DISTINCTION THAT IS BOTH ANALYTICALLY UNSOUND AND, I FEAR, UNWORKABLE
IN PRACTICE.  THE NET EFFECT OF THE DISTINCTION IS TO PRECLUDE
RESPONDENTS FROM MAINTAINING THESE ACTIONS UNDER ^ 1983, LEAVING A
PETITION FOR WRIT OF HABEAS CORPUS THE ONLY AVAILABLE FEDERAL REMEDY. 
AS A RESULT, RESPONDENTS MUST EXHAUST STATE REMEDIES BEFORE THEIR
CLAIMS CAN BE HEARD IN A FEDERAL DISTRICT COURT.  I REMAIN COMMITTED TO
THE PRINCIPLES SET FORTH IN WILWORDING V. SWENSON, AND I THEREFORE
RESPECTFULLY DISSENT. 

RESPONDENTS ARE THREE NEW YORK STATE PRISONERS WHO WERE PLACED IN
SEGREGATION AND DEPRIVED OF GOOD-CONDUCT-TIME CREDITS AS A RESULT OF
PRISON DISCIPLINARY PROCEEDINGS.  /2/  EACH OF THE RESPONDENTS
COMMENCED A PRO SE ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF NEW YORK BY FILING A COMBINED CIVIL RIGHTS
COMPLAINT AND PETITION FOR HABEAS CORPUS.  IN EACH CASE THE DISTRICT
COURT CONCLUDED THAT SINCE THE ACTION WAS PROPERLY BROUGHT UNDER ^
1983, THE PRISONER WAS NOT BOUND BY THE EXHAUSTION-OF-STATE-REMEDIES
REQUIREMENT OF THE FEDERAL HABEAS CORPUS STATUTE.  /3/  ON THE MERITS
OF THE THREE CASES, THE DISTRICT COURT HELD THAT STATE CORRECTIONAL
AUTHORITIES HAD DEPRIVED EACH RESPONDENT OF RIGHTS GUARANTEED BY THE
FOURTEENTH AMENDMENT, AND DIRECTED PETITIONER, THE COMMISSIONER OF
CORRECTIONAL SERVICES, TO RESTORE THE GOOD-CONDUCT-TIME CREDITS THAT
EACH OF THE RESPONDENTS HAD LOST. 

BY DIVIDED VOTE, TWO SEPARATE PANELS OF THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT REVERSED THE JUDGMENTS OF THE DISTRICT
COURT WITH RESPECT TO RESPONDENTS RODRIGUEZ AND KATZOFF.  PRIOR TO
DECISION IN THE CASE OF RESPONDENT KRITSKY, THE COURT OF APPEALS
VACATED THE TWO EARLIER DECISIONS AND SET ALL THREE CASES FOR REHEARING
EN BANC.  BY A VOTE OF 9 - 3, THE COURT AFFIRMED THE JUDGMENTS OF THE
DISTRICT COURT "UPON CONSIDERATION OF THE MERITS AND UPON THE AUTHORITY
OF WILWORDING V. SWENSON," DECIDED BY THIS COURT WHILE REHEARING EN
BANC WAS PENDING IN THE COURT OF APPEALS.  456 F.2D 79, 80 (1972). 
ALTHOUGH SEVERAL OF THE JUDGES WHO CONCURRED IN THE DECISION CANDIDLY
STATED THEIR MISGIVINGS ABOUT OUR HOLDING IN WILWORDING, THEY FELT
"CONSTRAINED," NONETHELESS, "TO CONCUR IN AFFIRMING THE ORDERS OF THE
DISTRICT COURT."  456 F.2D, AT 81 (FRIENDLY, C. J., CONCURRING).  /4/ 

THE COURT'S CONCLUSION THAT WILWORDING IS NOT CONTROLLING IS
ASSERTEDLY JUSTIFIED BY INVOCATION OF A CONCEPT, NEWLY INVENTED BY THE
COURT TODAY, VARIOUSLY TERMED THE "CORE OF HABEAS CORPUS," THE "HEART
OF HABEAS CORPUS," AND THE "ESSENCE OF HABEAS CORPUS."  ANTE, AT 489,
498, AND 484.  IN THE COURT'S VIEW, AN ACTION LYING AT THE "CORE OF
HABEAS CORPUS" IS ONE THAT "GOES DIRECTLY TO THE CONSTITUTIONALITY OF
(THE PRISONER'S) PHYSICAL CONFINEMENT ITSELF AND SEEKS EITHER IMMEDIATE
RELEASE FROM THAT CONFINEMENT OR THE SHORTENING OF ITS DURATION."  ID.,
AT 489.  WITH REGARD TO SUCH ACTIONS, HABEAS CORPUS IS NOW CONSIDERED
THE PRISONER'S EXCLUSIVE REMEDY.  IN SHORT, THE COURT DOES NOT GRAFT
THE HABEAS CORPUS EXHAUSTION REQUIREMENT ONTO PRISONER ACTIONS UNDER
THE KU KLUX KLAN ACT, BUT IT REACHES WHAT IS FUNCTIONALLY THE SAME
RESULT BY HOLDING THAT THE DISTRICT COURT'S JURISDICTION UNDER THE ACT
IS IN SOME INSTANCES DISPLACE BY THE HABEAS CORPUS REMEDY.  HENCEFORTH,
IN SUCH CASES A PRISONER BRINGS AN ACTION IN THE NATURE OF HABEAS
CORPUS -- OR HE BRINGS NO FEDERAL COURT ACTION AT ALL.     AT BOTTOM,
THE COURT'S HOLDING TODAY RESTS ON AN UNDERSTANDABLE APPREHENSION THAT
THE NO-EXHAUSTION RULE OF ^ 1983 MIGHT, IN THE ABSENCE OF SOME
LIMITATION, DEVOUR THE EXHAUSTION RULE OF THE HABEAS CORPUS STATUTE. 
THE PROBLEM ARISES BECAUSE THE TWO STATUTES NECESSARILY OVERLAP. 
INDEED, EVERY APPLICATION BY A STATE PRISONER FOR FEDERAL HABEAS CORPUS
RELIEF AGAINST HIS JAILERS COULD, AS A MATTER OF LOGIC AND SEMANTICS,
BE VIEWED AS AN ACTION UNDER THE KU KLUX KLAN ACT TO OBTAIN INJUNCTIVE
RELIEF AGAINST "THE DEPRIVATION,"  BY ONE ACTING UNDER COLOR OF STATE
LAW, "OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION AND LAWS" OF THE UNITED STATES.  42 U.S.C. ^ 1983.  TO
PREVENT STATE PRISONERS FROM NULLIFYING THE HABEAS CORPUS EXHAUSTION
REQUIREMENT BY INVARIABLY STYLING THEIR PETITIONS AS PLEAS FOR RELIEF
UNDER ^ 1983, THE COURT TODAY DEVISES AN UNGAINLY AND IRRATIONAL SCHEME
THAT PERMITS SOME PRISONERS TO SUE UNDER ^ 1983, WHILE OTHERS MAY
PROCEED ONLY BY WAY OF PETITION FOR HABEAS CORPUS.  AND THE ENTIRE
SCHEME OPERATES IN DEFIANCE OF THE PURPOSES UNDERLYING BOTH THE
EXHAUSTION REQUIREMENT OF HABEAS CORPUS AND THE ABSENCE OF A COMPARABLE
REQUIREMENT UNDER UNDER ^ 1983. 

        I AT THE OUTSET, IT IS IMPORTANT TO CONSIDER THE NATURE OF
THE LINE THAT THE COURT HAS DRAWN.  THE COURT HOLDS TODAY THAT "WHEN A
STATE PRISONER IS CHALLENGING THE VERY FACT OR DURATION OF HIS PHYSICAL
IMPRISONMENT, AND THE RELIEF HE SEEKS IS A DETERMINATION THAT HE IS
ENTITLED TO IMMEDIATE OR SPEEDIER RELEASE FROM THAT IMPRISONMENT, HIS
SOLE FEDERAL REMEDY IS A WRIT OF HABEAS CORPUS."  ANTE, AT 500.  BUT
EVEN UNDER THE COURT'S APPROACH, THERE ARE UNDOUBTEDLY SOME INSTANCES
WHERE A PRISONER HAS THE OPTION OF PROCEEDING EITHER BY PETITION FOR
HABEAS CORPUS OR BY SUIT UNDER ^ 1983. 

IN JOHNSON V. AVERY, 393 U.S. 483 (1969), WE HELD THAT THE WRIT OF
HABEAS CORPUS COULD BE USED TO CHALLENGE ALLEGEDLY UNCONSITUTIONAL
CONDITIONS OF CONFINEMENT.  CF. EX PARTE HULL, 312 U.S. 546, 549
(1941).  AND IN WILWORDING V. SWENSON, SUPRA, WHERE THE PETITIONERS
CHALLENGED "ONLY THEIR LIVING CONDITIONS AND DISCIPLINARY MEASURES
WHILE CONFINED IN MAXIMUM SECURITY AT MISSOURI STATE PENITENTIARY,"
ID., AT 249, WE HELD EXPLICITLY THAT THEIR CLAIMS WERE COGNIZABLE IN
HABEAS CORPUS.  THESE HOLDINGS ILLUSTRATE THE GENERAL PROPOSITION THAT
"(ANY UNLAWFUL RESTRAINT OF PERSONAL LIBERTY MAY BE INQUIRED INTO ON
HABEAS CORPUS.  . .  THIS RULE APPLIES ALTHOUGH A PERSON IS IN LAWFUL
CUSTODY.  HIS CONVICTION AND INCARCERATION DEPRIVE HIM ONLY OF SUCH
LIBERTIES AS THE LAW HAS ORDAINED HE SHALL SUFFER FOR HIS
TRANSGRESSIONS."  COFFIN V. REICHARD, 143 F.2D 443, 445 (CA6 1944); CF.
IN RE BONNER, 151 U.S. 242 (1894).  /5/ 

YET EVEN THOUGH A PRISONER MAY CHALLENGE THE CONDITIONS OF HIS
CONFINEMENT BY PETITION FOR WRIT OF HABEAS CORPUS, HE IS NOT PRECLUDED
BY TODAY'S OPINION FROM RAISING THE SAME OR SIMILAR CLAIM, WITHOUT
EXHAUSTION OF STATE REMEDIES, BY SUIT UNDER THE KU KLUX KLAN ACT,
PROVIDED HE ATTACKS ONLY THE CONDITIONS OF HIS CONFINEMENT AND NOT ITS
FACT OR DURATION.  TO THAT EXTENT, AT LEAST, THE COURT LEAVES
UNIMPAIRED OUR HOLDINGS IN WILWORDING V. SWENSON, SUPRA, AND THE OTHER
CASES IN WHICH WE HAVE UPHELD THE RIGHT OF PRISONERS TO SUE THEIR
JAILERS UNDER ^ 1983 WITHOUT EXHAUSTION OF STATE REMEDIES.  /6/
HUMPHREY V. CADY, 405 U.S., AT 516 - 517, N. 18; HOUGHTON V. SHAFER,
392 U.S. 639 (1968).  /7/  NOR DO I READ TODAY'S OPINION AS REJECTING,
OR EVEN QUESTIONING, THE RATIONALE OF NUMEROUS LOWER COURT DECISIONS
AUTHORIZING CHALLENGES TO PRISON CONDITIONS BY SUIT UNDER ^ 1983.  /8/
ACCORDINGLY, ONE CAN ONLY CONCLUDE THAT SOME INSTANCES REMAIN WHERE
HABEAS CORPUS PROVIDES A SUPPLEMENTARY BUT NOT AN EXCLUSIVE REMEDY --
OR, TO PUT IT ANOTHER WAY, WHERE AN ACTION MAY PROPERLY BE BROUGHT IN
HABEAS CORPUS, EVEN THOUGH IT IS SOMEHOW SUFFICIENTLY DISTANT FROM THE
"CORE OF HABEAS CORPUS" TO AVOID DISPLACING CONCURRENT JURISDICTION
UNDER THE KU KLUX KLAN ACT.  IN SUCH A CASE, A STATE PRISONER RETAINS
THE OPTION OF FORGOING THE

        II 

PUTTING MOMENTARILY TO ONE SIDE THE GRAVE ANALYTIC SHORTCOMINGS OF
THE COURT'S APPROACH, IT SEEMS CLEAR THAT THE SCHEME'S UNMANAGEABILITY
IS SUFFICIENT REASON TO CONDEMN IT.  FOR THE UNFORTUNATE BUT INEVITABLE
LEGACY OF TODAY'S OPINION IS A PERPLEXING SET OF UNCERTAINTIES AND
ANOMALIES.  AND THE NUB OF THE PROBLEM IS THE DEFINITION OF THE COURT'S
NEW-FOUND AND ESSENTIALLY ETHEREAL CONCEPT, THE "CORE OF HABEAS
CORPUS."  /9/ 

A PRISONER IS UNLUCKY ENOUGH TO HAVE HIS ACTION FALL WITHIN THE CORE
OF HABEAS CORPUS WHENEVER HE CHALLENGES THE FACT OR DURATION OF HIS
CONFINEMENT.  FOR EXAMPLE, AN ATTACK ON THE VALIDITY OF CONVICTION OR
SENTENCE IS PLAINLY DIRECTED AT THE FACT OR DURATION OF CONFINEMENT,
AND THE PRISONER CAN THEREFORE PROCEED ONLY BY PETITION FOR HABEAS
CORPUS.  SIMILARLY, WHERE PRISONERS ALLEGE, AS HERE, THAT "THE
DEPRIVATION OF THEIR GOOD-CONDUCT-TIME CREDITS (IS) CAUSING OR (WILL)
CAUSE THEM TO BE IN ILLEGAL PHYSICAL CONFINEMENT, I. E., THAT ONCE
THEIR CONDITIONAL-RELEASE DATE (HAS) PASSED, ANY FURTHER DETENTION OF
THEM IN PRISON (WILL BE) UNLAWFUL,"  THEIR CLAIM FALLS WITHIN THE
CORE.  AND "(EVEN IF THE RESTORATION OF THE RESPONDENTS' CREDITS WOULD
NOT HAVE RESULTED IN THEIR IMMEDIATE RELEASE, BUT ONLY IN SHORTENING
THE LENGTH OF THEIR ACTUAL CONFINEMENT IN PRISON,"  JURISDICTION UNDER
^ 1983 IS DISPLACED BY THE HABEAS CORPUS REMEDY.  ANTE, AT 487. 

AT THE OPPOSITE END OF THE SPECTRUM FROM AN ATTACK ON THE CONVICTION
ITSELF OR ON THE DEPRIVATION OF GOOD-TIME CREDITS IS A PRISONER'S
ACTION FOR MONETARY DAMAGES AGAINST HIS JAILERS.  "IF A STATE PRISONER
IS SEEKING DAMAGES," THE COURT MAKES CLEAR, HE IS SEEKING "SOMETHING
OTHER THAN IMMEDIATE OR MORE SPEEDY RELEASE -- THE TRADITIONAL PURPOSE
OF HABEAS CORPUS.  IN THE CASE OF A DAMAGES CLAIM, HABEAS CORPUS IS NOT
AN APPROPRIATE OR AVAILABLE FEDERAL REMEDY.  ACCORDINGLY, AS
PETITIONERS THEMSELVES CONCEDE, A DAMAGES ACTION BY A STATE PRISONER
COULD BE BROUGHT UNDER (^ 1983) IN FEDERAL COURT WITHOUT ANY
REQUIREMENT OF PRIOR EXHAUSTION OF STATE REMEDIES."  ANTE, AT 494
(EMPHASIS IN ORIGINAL). 

BETWEEN A SUIT FOR DAMAGES AND AN ATTACK ON THE CONVICTION ITSELF OR
ON THE DEPRIVATION OF GOOD-TIME CREDITS ARE CASES WHERE HABEAS CORPUS
IS AN APPROPRIATE AND AVAILABLE REMEDY, BUT WHERE THE ACTION FALLS
OUTSIDE THE "CORE OF HABEAS CORPUS" BECAUSE THE ATTACK IS DIRECTED AT
THE CONDITIONS OF CONFINEMENT, NOT AT ITS FACT OR DURATION. 
NOTWITHSTANDING TODAY'S DECISION, A PRISONER MAY CHALLENGE, BY SUIT
UNDER ^ 1983, PRISON LIVING CONDITIONS AND DISCIPLINARY MEASURES, /10/
OR CONFISCATION OF LEGAL MATERIALS, /11/  OR IMPAIRMENT OF THE RIGHT TO
FREE EXERCISE OF RELIGION, /12/  EVEN THOUGH FEDERAL HABEAS CORPUS IS
AVAILABLE AS AN ALTERNATIVE REMEDY.  IT SHOULD BE PLAIN ENOUGH THAT
SERIOUS DIFFICULTIES WILL ARISE WHENEVER A PRISONER SEEKS TO ATTACK IN
A SINGLE PROCEEDING BOTH THE CONDITIONS OF HIS CONFINEMENT AND THE
DEPRIVATION OF GOOD-TIME CREDITS.  AND THE ADDITION OF A PLEA FOR
MONETARY DAMAGES EXACERBATES THE PROBLEM. 

IF A PRISONER'S SOLE CLAIM IS THAT HE WAS PLACED IN SOLITARY
CONFINEMENT PURSUANT TO AN UNCONSTITUTIONAL DISCIPLINARY PROCEDURE,
/13/  HE CAN OBTAIN FEDERAL INJUNCTIVE RELIEF AND MONETARY DAMAGES IN
AN ACTION UNDER ^ 1983.  THE UNANSWERED QUESTION IS WHETHER HE LOSES
THE RIGHT TO PROCEED UNDER ^ 1983 IF, AS PUNISHMENT FOR HIS ALLEGED
MISCONDUCT, HIS JAILERS HAVE NOT ONLY SUBJECTED HIM TO UNLAWFUL
SEGREGATION AND THEREBY INFLICTED AN INJURY THAT IS COMPENSABLE IN
DAMAGES, BUT HAVE COMPOUNDED THE WRONG BY IMPROPERLY DEPRIVING HIM OF
GOOD-TIME CREDITS.  THREE DIFFERENT APPROACHES ARE POSSIBLE. 

FIRST, WE MIGHT CONCLUDE THAT JURISDICTION UNDER ^ 1983 IS LOST
WHENEVER GOOD-TIME CREDITS ARE INVOLVED, EVEN WHERE THE ACTION IS BASED
PRIMARILY ON THE NEED FOR MONETARY RELIEF OR AN INJUNCTION AGAINST
CONTINUED SEGREGATION.  IF THAT IS THE LOGIC OF THE COURT'S OPINION,
THEN THE SCHEME CREATES AN UNDENIABLE, AND IN ALL LIKELIHOOD
IRRESISTIBLE, INCENTIVE FOR STATE PRISON OFFICIALS TO DEFEAT THE
JURISDICTION OF THE FEDERAL COURTS BY ADDING THE DEPRIVATION OF GOOD
TIME CREDITS TO WHATEVER OTHER PUNISHMENT IS IMPOSED.  AND IF ALL OF
THE FEDERAL CLAIMS MUST BE HELD IN ABEYANCE PENDING EXHAUSTION OF STATE
REMEDIES, A PRISONER'S SUBSEQUENT EFFORT TO ASSERT A DAMAGES CLAIM
UNDER ^ 1983 MIGHT ARGUABLY BE BARRED BY PRINCIPLES OF RES JUDICATA. 
/14/  TO AVOID THE LOSS OF HIS DAMAGES CLAIM, A PRISONER MIGHT CONCLUDE
THAT HE SHOULD MAKE NO MENTION OF THE GOOD-TIME ISSUE AND INSTEAD SEEK
ONLY DAMAGES IN A ^ 1983 ACTION.  THAT APPROACH (ASSUMING IT WOULD NOT
BE DISALLOWED AS A SUBTERFUGE TO CIRCUMVENT THE EXHAUSTION REQUIREMENT)
CREATES ITS OWN DISTRESSING POSSIBILITIES.  FOR, HAVING OBTAINED
DECISION IN FEDERAL COURT ON THE ISSUE OF DAMAGES, THE PRISONER WOULD
PRESUMABLY BE REQUIRED TO REPAIR TO STATE COURT IN SEACH OF HIS LOST
GOOD-TIME CREDITS, RETURNING ONCE AGAIN TO FEDERAL COURT IF HIS STATE
COURT EFFORTS SHOULD PROVE UNAVAILING. 

MOREOVER, A DETERMINATION THAT NO FEDERAL CLAIM CAN BE RAISED WHERE
GOOD-TIME CREDITS ARE AT STAKE WOULD GIVE RISE TO A FURTHER ANOMALY. 
IF THE PRISONER IS CONFINED IN AN INSTITUTION THAT DOES NOT OFFER GOOD
TIME CREDITS, AND THEREFORE CANNOT WITHDRAW THEM, /15/  HIS PRISON
CONDITIONS CLAIMS COULD ALWAYS BE RAISED IN A SUIT UNDER ^ 1983.  ON
THE OTHER HAND, AN INMATE IN AN INSTITUTION THAT USES GOOD-TIME CREDITS
AS REWARD AND PUNISHMENT, WHO SEEKS A FEDERAL HEARING ON THE IDENTICAL
LEGAL AND FACTUAL CLAIMS, WOULD NORMALLY BE REQUIRED TO EXHAUST STATE
REMEDIES AND THEN PROCEED BY WAY OF FEDERAL HABEAS CORPUS.  THE
RATIONALITY OF THAT DIFFERENCE IN TREATMENT IS CERTAINLY OBSCURE.  YET
THAT IS THE PRICE OF PERMITTING THE AVAILABILITY OF A FEDERAL FORUM TO
BE CONTROLLED BY THE HAPPENSTANCE (OR STRATAGEM) THAT GOOD-TIME CREDITS
ARE AT STAKE. 

AS AN ALTERNATIVE, WE MIGHT REJECT OUTRIGHT THE PREMISES OF THE
FIRST APPROACH AND CONCLUDE THAT A PLEA FOR MONEY DAMAGES OR FOR AN
INJUNCTION AGAINST CONTINUED SEGREGATION IS SUFFICIENT TO BRING ALL
RELATED CLAIMS, INCLUDING THE QUESTION OF GOOD-TIME CREDITS, UNDER THE
UMBRELLA OF ^ 1983.  THAT APPROACH WOULD, OF COURSE, SIMPLIFY MATTERS
CONSIDERABLY.  AND IT WOULD MAKE UNNECESSARY THE FRACTIONATION OF THE
PRISONER'S CLAIMS INTO A NUMBER OF DIFFERENT ISSUES TO BE RESOLVED IN
DUPLICATIVE PROCEEDINGS IN STATE AND FEDERAL COURTS.  NEVERTHELESS, THE
APPROACH WOULD SEEM TO AFFORD A CONVENIENT MEANS OF SIDESTEPPING THE
BASIC THRUST OF THE COURT'S OPINION, AND WE COULD SURELY EXPECT STATE
PRISONERS ROUTINELY TO ADD TO THEIR OTHER CLAIMS A PLEA FOR MONETARY
RELIEF.  SO LONG AS THE PRISONER COULD FORMULATE AT LEAST A COLORABLE
DAMAGES CLAIM, HE WOULD BE ENTITLED TO LITIGATE ALL ISSUES IN FEDERAL
COURT WITHOUT FIRST EXHAUSTING STATE REMEDIES. 

IN ANY EVENT, THE COURT TODAY REJECTS PERHAPS FOR THE REASONS
SUGGESTED ABOVE, BOTH OF THE FOREGOING POSITIONS.  INSTEAD, IT HOLDS
THAT INSOFAR AS A PRISONER'S CLAIM RELATES TO GOOD-TIME CREDITS, HE IS
REQUIRED TO EXHAUST STATE REMEDIES; BUT HE IS NOT PRECLUDED FROM
SIMULTANEOUSLY LITIGATING IN FEDERAL COURT, UNDER ^ 1983, HIS CLAIM FOR
MONETARY DAMAGES OR AN INJUNCTION AGAINST CONTINUED SEGREGATION.  ANTE,
AT 499 N. 14.  UNDER THAT APPROACH, STATE CORRECTIONAL AUTHORITIES HAVE
NO ADDED INCENTIVE TO WITHDRAW GOOD-TIME CREDITS, SINCE THAT ACTION
CANNOT, STANDING ALONE, KEEP THE PRISONER OUT OF FEDERAL COURT.  AND,
AT THE SAME TIME, IT DOES NOT ENCOURAGE A PRISONER TO ASSERT AN
UNNECESSARY CLAIM FOR DAMAGES OR INJUNCTIVE RELIEF AS A MEANS OF
BRINGING HIS GOOD-TIME CLAIM UNDER THE PURVIEW OF ^ 1983. 
NEVERTHELESS, THIS APPROACH ENTAILS SUBSTANTIAL DIFFICULTIES -- PERHAPS
THE GREATEST DIFFICULTIES OF THE THREE.  IN THE FIRST PLACE, ITS
EXTREME INEFFICIENCY IS READILY APPARENT.  FOR IN MANY INSTANCES A
PRISONER'S CLAIMS WILL BE UNDER SIMULTANEOUS CONSIDERATION IN TWO
DISTINCT FORUMS, EVEN THOUGH THE IDENTICAL LEGAL AND FACTUAL QUESTIONS
ARE INVOLVED IN BOTH PROCEEDINGS.  THUS, IF A PRISONER'S PUNISHMENT FOR
SOME ALLEGED MISCONDUCT IS BOTH A TERM IN SOLITARY AND THE DEPRIVATION
OF GOOD-TIME CREDITS, AND IF HE BELIEVES THAT THE PUNISHMENT WAS
IMPOSED PURSUANT TO UNCONSTITUTIONAL DISCIPLINARY PROCEDURES, HE CAN
NOW LITIGATE THE LEGALITY OF THOSE PROCEDURES SIMULTANEOUSLY IN STATE
COURT (WHERE HE SEEKS RESTORATION OF GOOD-TIME CREDITS) AND IN FEDERAL
COURT (WHERE HE SEEKS DAMAGES OR AN INJUNCTION AGAINST CONTINUED
SEGREGATION).  MOREOVER, IF THE FEDERAL COURT IS THE FIRST TO REACH
DECISION, AND IF THAT COURT CONCLUDES THAT THE PROCEDURES ARE, IN FACT,
UNLAWFUL, THEN THE ENTIRE STATE PROCEEDING MUST BE IMMEDIATELY ABORTED,
EVEN THOUGH THE STATE COURT MAY HAVE DEVOTED SUBSTANTIAL TIME AND
EFFORT TO ITS CONSIDERATION OF THE CASE.  BY THE SAME TOKEN, IF
TRADITIONAL PRINCIPLES OF RES JUDICATA ARE APPLICABLE TO SUITS UNDER ^
1983, SEE SUPRA, AT 509 N. 14, THE PRIOR CONCLUSION OF THE STATE COURT
SUIT WOULD EFFECTIVELY SET AT NAUGHT THE ENTIRE FEDERAL COURT
PROCEEDING.  THIS IS PLAINLY A CURIOUS PRESCRIPTION FOR IMPROVING
RELATIONS BETWEEN STATE AND FEDERAL COURTS. 

SINCE SOME OF THE RAMIFICATIONS OF THIS NEW APPROACH ARE STILL
UNCLEAR, THE UNFORTUNATE OUTCOME OF TODAY'S DECISION -- AN OUTCOME THAT
MIGHT NOT BE IMMEDIATELY SURMISED FROM THE SEEMING SIMPLICITY OF THE
BASIC CONCEPT, THE "CORE OF HABEAS CORPUS" -- IS ALMOST CERTAIN TO BE
THE FURTHER COMPLICATION OF PRISON-CONDITIONS LITIGATION.  IN ITSELF
THAT IS DISQUIETING ENOUGH.  BUT IN IS ESPECIALLY DISTRESSING THAT THE
REMAINING QUESTIONS WILL HAVE TO BE RESOLVED ON THE BASIS OF PLEADINGS,
WHETHER IN HABEAS CORPUS OR SUIT UNDER ^ 1983, SUBMITTED BY STATE
PRISONERS, WHO WILL OFTEN HAVE TO COPE WITH THESE QUESTIONS WITHOUT
EVEN MINIMAL ASSISTANCE OF COUNSEL. 

        III     THE COURT'S CONCLUSION THAT RESPONDENTS MUST
PROCEED BY PETITION FOR HABEAS CORPUS IS UNFORTUNATE, NOT ONLY BECAUSE
OF THE UNCERTAINTIES AND PRACTICAL DIFFICULTIES TO WHICH THE CONCLUSION
NECESSARILY GIVES RISE, BUT ALSO BECAUSE IT DERIVES FROM A FAULTY
ANALYTIC FOUNDATION.  THE TEXT OF ^ 1983 CARRIES NO EXPLANATION FOR
TODAY'S DECISION; PRISONERS ARE STILL, I ASSUME, "PERSONS" WITHIN THE
MEANING OF THE STATUTE.  MOREOVER, PRIOR TO OUR RECENT DECISIONS
EXPANDING THE DEFINITION OF "CUSTODY,"  /16/  AND ABANDONING THE
"PREMATURITY" DOCTRINE, /17/  IT IS DOUBTFUL THAT HABEAS CORPUS WOULD
EVEN HAVE PROVIDED THEM A REMEDY.  SINCE THEIR CLAIMS COULD NOT, IN ALL
LIKELIHOOD, HAVE BEEN HEARD ON HABEAS CORPUS AT THE TIME THE PRESENT
HABEAS CORPUS STATUTE WAS ENACTED IN 1867, /18/  OR AT THE TIME THE
EXHAUSTION DOCTRINE WAS FIRST ANNOUNCED IN EX PARTE ROYALL, 117 U.S.
241 (1886), OR AT THE TIME THE REQUIREMENT WAS CODIFIED IN 1948, /19/
IT IS SURELY HARD TO VIEW THESE ACTS AS A DETERMINATION TO PRECLUDE
SUIT UNDER ^ 1983 AND LEAVE HABEAS CORPUS THE PRISONER'S ONLY REMEDY. 
NEVERTHELESS, TO PREVENT STATE PRISONERS FROM INVOKING THE
JURISDICTIONAL GRANT OF ^ 1983 AS A MEANS OF CIRCUMVENTING THE
EXHAUSTION REQUIREMENT OF THE HABEAS CORPUS STATUTE, THE COURT FINDS IT
NECESSARY TO HOLD TODAY THAT IN THIS ONE INSTANCE JURISDICTION UNDER ^
1983 IS DISPLACED BY THE HABEAS CORPUS REMEDY. 

THE CONCERN THAT ^ 1983 NOT BE USED TO NULLIFY THE HABEAS CORPUS
EXHAUSTION DOCTRINE IS, OF COURSE, LEGITIMATE.  BUT OUR EFFORT TO
PRESERVE THE INTEGRITY OF THE DOCTRINE MUST REST ON AN UNDERSTANDING OF
THE PURPOSES THAT UNDERLIE IT.  IN MY VIEW, THE COURT MISAPPREHENDS
THESE FUNDAMENTAL PURPOSES AND COMPOUNDS THE PROBLEM BY PAYING
INSUFFICIENT ATTENTION TO THE REASONS WHY EXHAUSTION OF STATE REMEDIES
IS NOT REQUIRED IN SUITS UNDER ^ 1983.  AS A RESULT, THE COURT
MISTAKENLY CONCLUDES THAT ALLOWING SUIT UNDER ^ 1983 WOULD JEOPARDIZE
THE PURPOSES OF THE EXHAUSTION RULE. 

BY ENACTMENT OF THE KU KLUX KLAN ACT IN 1871, AND AGAIN BY THE GRANT
IN 1875 OF ORIGINAL FEDERAL-QUESTION JURISDICTION TO THE FEDERAL
COURTS, /20/  CONGRESS RECOGNIZED IMPORTANT INTERESTS IN PERMITTING A
PLAINTIFF TO CHOOSE A FEDERAL FORUM IN CASES ARISING UNDER FEDERAL
LAW.  "IN THUS EXPANDING FEDERAL JUDICIAL POWER, CONGRESS IMPOSED THE
DUTY UPON ALL LEVELS OF THE FEDERAL JUDICIARY TO GIVE DUE RESPECT TO A
SUITOR'S CHOICE OF A FEDERAL FORUM FOR THE HEARING AND DECISION OF HIS
FEDERAL CONSTITUTIONAL CLAIMS.  PLAINLY, ESCAPE FROM THAT DUTY IS NOT
PERMISSIBLE MERELY BECAUSE STATE COURTS ALSO HAVE THE SOLEMN
RESPONSIBILITY, EQUALLY WITH THE FEDERAL COURTS, '.  . . TO GUARD,
ENFORCE, AND PROTECT EVERY RIGHT GRANTED OR SECURED BY THE CONSTITUTION
OF THE UNITED STATES . . .,' ROBB V. CONNOLLY, 111 U.S. 624, 637." 
ZWICKLER V. KOOTA, 389 U.S. 241, 248 (1967). 

THIS GRANT OF JURISDICTION WAS DESIGNED TO PRESERVE AND ENHANCE THE
EXPERTISE OF FEDERAL COURTS IN APPLYING FEDERAL LAW; TO ACHIEVE GREATER
UNIFORMITY OF RESULTS, CF. MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304,
347 - 348 (1816); AND, SINCE FEDERAL COURTS ARE "MORE LIKELY TO APPLY
FEDERAL LAW SYMPATHTICALLY AND UNDERSTANDINGLY THAN ARE STATE COURTS,"
ALI, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL
COURTS 166 (1969), TO MINIMIZE MISAPPLICATIONS OF FEDERAL LAW.  SEE
GENERALLY ID., AT 165 - 167. 

IN THE SERVICE OF THE SAME INTERESTS, WE HAVE TAKEN CARE TO
EMPHASIZE THAT THERE ARE 

"FUNDAMENTAL OBJECTIONS TO ANY CONCLUSION THAT A LITIGANT WHO HAS
PROPERLY INVOKED THE JURISDICTION OF A FEDERAL DISTRICT COURT TO
CONSIDER FEDERAL CONSTITUTIONAL CLAIMS CAN BE COMPELLED, WITHOUT HIS
CONSENT AND THROUGH NO FAULT OF HIS OWN, TO ACCEPT INSTEAD A STATE
COURT'S DETERMINATION OF THOSE CLAIMS.  SUCH A RESULT WOULD BE AT WAR
WITH THE UNQUALIFIED TERMS IN WHICH CONGRESS, PURSUANT TO
CONSTITUTIONAL AUTHORIZATION, HAS CONFERRED SPECIFIC CATEGORIES OF
JURISDICTION UPON THE FEDERAL COURTS, AND WITH THE PRINCIPLE THAT 'WHEN
A FEDERAL COURT IS PROPERLY APPEALED TO IN A CASE OVER WHICH IT HAS BY
LAW JURISDICTION, IT IS ITS DUTY TO TAKE SUCH JURISDICTION . . . THE
RIGHT OF A PARTY PLAINTIFF TO CHOOSE A FEDERAL COURT WHERE THERE IS A
CHOICE CANNOT BE PROPERLY DENIED.'  WILLCOX V. CONSOLIDATED GAS CO.,
212 U.S. 19, 40."  ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL
EXAMINERS, 375 U.S. 411, 415 (1964).  WE HAVE ALSO RECOGNIZED THAT
REVIEW BY THIS COURT OF STATE DECISIONS, "EVEN WHEN AVAILABLE BY APPEAL
RATHER THAN ONLY BY DISCRETIONARY WRIT OF CERTIORARI, IS AN INADEQUATE
SUBSTITUTE FOR THE INITIAL DISTRICT COURT DETERMINATION . . . TO WHICH
THE LITIGANT IS ENTITLED IN THE FEDERAL COURTS."  ID., AT 416.  THE
FEDERAL COURTS ARE, IN SHORT, THE "PRIMARY AND POWERFUL RELIANCES FOR
VINDICATING EVERY RIGHT GIVEN BY THE CONSTITUTION, THE LAWS, AND
TREATIES OF THE UNITED STATES."  F. FRANKFURTER & J. LANDIS, THE
BUSINESS OF THE SUPREME COURT:  A STUDY IN THE FEDERAL JUDICIAL SYSTEM
65 (1928).  SEE ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS,
SUPRA, AT 415. 

THESE CONSIDERATIONS, APPLICABLE GENERALLY IN CASES ARISING UNDER
FEDERAL LAW, HAVE SPECIAL FORCE IN THE CONTEXT OF THE KU KLUX KLAN ACT
OF 1871.  IN A SUIT TO ENFORCE FUNDAMENTAL CONSTITUTIONAL RIGHTS, THE
PLAINTIFF'S CHOICE OF A FEDERAL FORUM HAS SINGULAR URGENCY.  /21/  THE
STATUTORY PREDECESSOR TO ^ 1983 WAS, AFTER ALL, DESIGNED "TO AFFORD A
FEDERAL RIGHT IN FEDERAL COURTS BECAUSE, BY REASON OF PREJUDICE,
PASSION, NEGLECT, INTOLERANCE OR OTHERWISE, STATE LAWS MIGHT NOT BE
ENFORCED AND THE CLAIMS OF CITIZENS TO THE RIGHTS, PRIVILEGES, AND
IMMUNITIES GUARANTEED BY THE FOURTEENTH AMENDMENT MIGHT BE DENIED BY
THE STATE AGENCIES."  MONROE V. PAPE, 365 U.S. 167, 180 (1961).  AND
THE STATUTE'S LEGISLATIVE HISTORY 

"MAKES EVIDENT THAT CONGRESS CLEARLY CONCEIVED THAT IT WAS ALTERING
THE RELATIONSHIP BETWEEN THE STATES AND THE NATION WITH RESPECT TO THE
PROTECTION OF FEDERALLY CREATED RIGHTS; IT WAS CONCERNED THAT STATE
INSTRUMENTALITIES COULD NOT PROTECT THOSE RIGHTS; IT REALIZED THAT
STATE OFFICERS MIGHT, IN FACT, BE ANTIPATHETIC TO THE VINDICATION OF
THOSE RIGHTS; AND IT BELIEVED THAT THESE FAILINGS EXTENDED TO THE STATE
COURTS.  . .  THE VERY PURPOSE OF ^ 1983 WAS TO INTERPOSE THE FEDERAL
COURTS BETWEEN THE STATES AND THE PEOPLE, AS GUARDIANS OF THE PEOPLE'S
FEDERAL RIGHTS -- TO PROTECT THE PEOPLE FROM UNCONSTITUTIONAL ACTION
UNDER COLOR OF STATE LAW, 'WHETHER THAT ACTION BE EXECUTIVE,
LEGISLATIVE OR JUDICIAL.'  EX PARTE VIRGINIA (100 U.S. 339, 346
(1880)."  MITCHUM V. FOSTER, 407 U.S. 225, 242 (1972).  SEE ALSO
DISTRICT OF COLUMBIA V. CARTER, 409 U.S. 418, 426 - 428 (1973).  /22/ 

IT IS AGAINST THIS BACKGROUND THAT WE HAVE REFUSED TO REQUIRE
EXHAUSTION OF STATE REMEDIES BY CIVIL RIGHTS PLAINTIFFS.  /23/
PLAINLY, "(WE WOULD DEFEAT (THE PURPOSES OF ^ 1983) IF WE HELD THAT
ASSERTION OF A FEDERAL CLAIM IN A FEDERAL COURT MUST AWAIT AN ATTEMPT
TO VINDICATE THE SAME CLAIM IN A STATE COURT."  MCNEESE V. BOARD OF
EDUCATION, 373 U.S. 668, 672 (1963).  "WE YET LIKE TO BELIEVE THAT
WHEREVER THE FEDERAL COURTS SIT, HUMAN RIGHTS UNDER THE FEDERAL
CONSTITUTION ARE ALWAYS A PROPER SUBJECT FOR ADJUDICATION, AND THAT WE
HAVE NOT THE RIGHT TO DECLINE THE EXERCISE OF THAT JURISDICTION SIMPLY
BECAUSE THE RIGHTS ASSERTED MAY BE ADJUDICATED IN SOME OTHER FORUM." 
STAPLETON V. MITCHELL, 60 F. SUPP. 51, 55 (KAN. 1945); QUOTED WITH
APPROVAL IN ZWICKLER V. KOOTA, 389 U.S., AT 248; AND MCNEESE V. BOARD
OF EDUCATION, SUPRA, AT 674 N. 6.  SEE ALSO MONROE V. PAPE, SUPRA, AT
183; MORENO V. HENCKEL, 431 F.2D 1299, 1303 - 1307 (CA5 1970); H.
FRIENDLY, FEDERAL JURISDICTION:  A GENERAL VIEW 102 - 103 (1973). 

OUR DETERMINATION THAT PRINCIPLES OF FEDERALISM DO NOT REQUIRE THE
EXHAUSTION OF STATE REMEDIES IN CASES BROUGHT UNDER THE KU KLUX KLAN
ACT HOLDS TRUE EVEN WHERE THE STATE AGENCY OR PROCESS UNDER
CONSTITUTIONAL ATTACK IS INTIMATELY TIED TO THE STATE JUDICIAL
MACHINERY.  CF. LYNCH V. HOUSEHOLD FINANCE VORP., 405 U.S. 538 (1972). 
INDEED, ONLY LAST TERM WE HELD IN MITCHUM V. FOSTER, SUPRA, THAT ^ 1983
OPERATES AS AN EXCEPTION TO THE FEDERAL ANTI-INJUNCTION STATUTE, 28
U.S.C. ^ 2283, WHICH PROHIBITS FEDERAL COURT INJUNCTIONS AGAINST
ONGOING STATE JUDICIAL PROCEEDINGS AND WHICH IS DESIGNED TO PREVENT
"NEEDLESS FRICTION BETWEEN STATE AND FEDERAL COURTS."  OKLAHOMA PACKING
CO. V. GAS CO., 309 U.S. 4, 9 (1940).  ALTHOUGH THE ANTI-INJUNCTION
STATUTE RESTS IN PART ON CONSIDERATIONS AS FUNDAMENTAL AS THE
"CONSTITUTIONAL INDEPENDENCE OF THE STATES AND THEIR COURTS," ATLANTIC
C. L. R. CO. V. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, 398 U.S. 281, 287
(1970), AND ALTHOUGH EXCEPTIONS WILL "NOT BE ENLARGED BY LOOSE
STATUTORY CONSTRUCTION,"  IBID., WE NEVERTHELESS UNANIMOUSLY CONCLUDED
THAT ^ 1983 IS EXCEPTED FROM THE STATUTE'S PROHIBITION -- THAT THE ANTI
INJUNCTION STATUTE DOES NOT, IN OTHER WORDS, DISPLACE FEDERAL
JURISDICTION UNDER THE KU KLUX KLAN ACT. 

IN SUM, THE ABSENCE OF AN EXHAUSTION REQUIREMENT IN ^ 1983 IS NOT AN
ACCIDENT OF HISTORY OR THE RESULT OF CARELESS OVERSIGHT BY CONGRESS OR
THIS COURT.  ON THE CONTRARY, THE NO-EXHAUSTION RULE IS AN INTEGRAL
FEATURE OF THE STATUTORY SCHEME.  EXHAUSTION OF STATE REMEDIES IS NOT
REQUIRED PRECISELY BECAUSE SUCH A REQUIREMENT WOULD JEOPARDIZE THE
PURPOSES OF THE ACT.  FOR THAT REASON, THE IMPOSITION OF SUCH A
REQUIREMENT, EVEN IF DONE INDIRECTLY BY MEANS OF A DETERMINATION THAT
JURISDICTION UNDER ^ 1983 IS DISPLACED BY AN ALTERNATIVE REMEDIAL
DEVICE, MUST BE JUSTIFIED BY A CLEAR STATEMENT OF CONGRESSIONAL INTENT,
OR, AT THE VERY LEAST, BY THE PRESENCE OF THE MOST PERSUASIVE
CONSIDERATIONS OF POLICY.  IN MY VIEW, NO SUCH JUSTIFICATION CAN BE
FOUND. 

CRUCIAL TO THE COURT'S ANALYSIS OF THE CASE BEFORE US IS ITS
UNDERSTANDING OF THE PURPOSES THAT UNDERLIE THE HABEAS CORPUS
EXHAUSTION REQUIREMENT.  BUT JUST AS THE COURT PAYS TOO LITTLE
ATTENTION TO THE REASONS FOR A NO-EXHAUSTION RULE IN ACTIONS UNDER
1983, IT ALSO MISCONCEIVES THE PURPOSES OF THE EXHAUSTION REQUIREMENT
IN HABEAS CORPUS.  AS A RESULT, THE COURT REACHES WHAT SEEMS TO ME THE
ERRONEOUS CONCLUSION THAT THE PURPOSES OF THE EXHAUSTION REQUIREMENT
ARE FULLY IMPLICATED IN RESPONDENTS' ACTIONS, EVEN THOUGH RESPONDENTS
SOUGHT TO BRING THESE ACTIONS UNDER ^ 1983. 

"THE RULE OF EXHAUSTION IN FEDERAL HABEAS CORPUS ACTIONS IS,"
ACCORDING TO TODAY'S OPINION, "ROOTED IN CONSIDERATIONS OF FEDERAL
STATE COMITY.  THAT PRINCIPLE WAS DEFINED IN YOUNGER V. HARRIS, 401
U.S. 37, 44 (1971), AS 'A PROPER RESPECT FOR STATE FUNCTIONS,' AND IT
HAS AS MUCH RELEVANCE IN AREAS OF PARTICULAR STATE ADMINISTRATIVE
CONCERN AS IT DOES WHERE STATE JUDICIAL ACTION IS BEING ATTACKED." 
ANTE, AT 491.  MOREOVER, THE COURT REASONS THAT SINCE THE RELATIONSHIP
BETWEEN STATE PRISONERS AND STATE OFFICERS IS ESPECIALLY INTIMATE, AND
SINCE PRISON ISSUES ARE PECULIARLY WITHIN STATE AUTHORITY AND
EXPERTISE, "THE STATES HAVE AN IMPORTANT INTEREST IN NOT BEING BYPASSED
IN THE CORRECTION OF THOSE PROBLEMS."  ANTE, AT 492.  WITH ALL RESPECT,
I CANNOT ACCEPT EITHER THE PREMISES OR THE REASONING THAT LEAD TO THE
COURT'S CONCLUSION. 

ALTHOUGH CODIFIED IN THE HABEAS CORPUS STATUTE IN 1948, 28 U.S.C. ^
2254 (B), THE EXHAUSTION REQUIREMENT IS A "JUDICIALLY CRAFTED
INSTRUMENT WHICH REFLECTS A CAREFUL BALANCE BETWEEN IMPORTANT INTERESTS
OF FEDERALISM AND THE NEED TO PRESERVE THE WRIT OF HABEAS CORPUS AS A
'SWIFT AND IMPERATIVE REMEDY IN ALL CASES OF ILLEGAL RESTRAINT OR
CONFINEMENT.'  SECRETARY OF STATE FOR HOME AFFAIRS V. O'BRIEN, (1923)
A. C. 603, 609 (H. L.)."  BRADEN V. 30TH JUDICIAL CIRCUIT, 410 U.S.
484, 490 (1973).  THE INDISPUTABLE CONCERN OF ALL OUR DECISIONS
CONCERNING THE DOCTRINE HAS BEEN THE RELATIONSHIP "BETWEEN THE JUDICIAL
TRIBUNALS OF THE UNION AND OF THE STATES.  . . (THE PUBLIC GOOD
REQUIRES THAT THOSE RELATIONS BE NOT DISTURBED BY UNNECESSARY CONFLICT
BETWEEN COURTS EQUALLY BOUND TO GUARD AND PROTECT RIGHTS SECURED BY THE
CONSTITUTION."  EX PARTE ROYALL, 117 U.S., AT 251. 

EX PARTE ROYALL IS, OF COURSE, THE GERMINAL CASE, AND ITS CONCERN
WITH THE RELATIONS BETWEEN STATE AND FEDERAL COURTS IS MIRRORED IN OUR
SUBSEQUENT DECISIONS.  SEE, E. G., BRADEN V. 30TH JUDICIAL CIRCUIT,
SUPRA, AT 489 - 490; BAKER V. GRICE, 169 U.S. 284, 291 (1898); EX PARTE
HAWK, 321 U.S. 114, 116 - 117 (1944);CF. SOSTRE V. MCGINNIS, 442 F.2D
178, 182 (CA2 1971); EDWARDS V. SCHMIDT, 321 F. SUPP. 68, 74 - 75 (WD
WIS. 1971).  WE HAVE GROUNDED THE DOCTRINE SQUARELY ON THE VIEW THAT
"IT WOULD BE UNSEEMLY IN OUR DUAL SYSTEM OF GOVERNMENT FOR A FEDERAL
DISTRICT COURT TO UPSET A STATE COURT CONVICTION WITHOUT AN OPPORTUNITY
TO THE STATE COURTS TO CORRECT A CONSTITUTIONAL VIOLATION."  FAY V.
NOIA, 372 U.S. 391, 419 - 420 (1963) (EMPHASIS ADDED), QUOTING FROM
DARR V. BURFORD, 339 U.S. 200, 204 (1950).  SEE PARKER, LIMITING THE
ABUSE OF HABEAS CORPUS, 8 F. R. D. 171, 172 - 173 (1948). 

THAT IS NOT TO SAY, HOWEVER, THAT THE PURPOSES OF THE DOCTRINE ARE
IMPLICATED ONLY WHERE AN ATTACK IS DIRECTED AT A STATE COURT CONVICTION
OR SENTENCE.  EX PARTE ROYALL ITSELF DID NOT INVOLVE A CHALLENGE TO A
STATE CONVICTION, BUT RATHER AN EFFORT TO SECURE A PRISONER'S RELEASE
ON HABEAS CORPUS "IN ADVANCE OF HIS TRIAL IN THE (STATE) COURT IN WHICH
HE (WAS) INDICTED."  ID., AT 253.  BUT THERE, TOO, THE FOCUS WAS ON
RELATIONS BETWEEN THE STATE AND FEDERAL JUDICIARIES.  IT IS A
FUNDAMENTAL PURPOSE OF THE EXHAUSTION DOCTRINE TO PRESERVE THE "ORDERLY
ADMINISTRATION OF STATE JUDICIAL BUSINESS, PREVENTING THE INTERRUPTION
OF STATE ADJUDICATION BY FEDERAL HABEAS PROCEEDINGS.  IT IS IMPORTANT
THAT PETITIONERS REACH STATE APPELLATE COURTS, WHICH CAN DEVELOP AND
CORRECT ERRORS OF STATE AND FEDERAL LAW AND MOST EFFECTIVELY SUPERVISE
AND IMPOSE UNIFORMITY ON TRIAL COURTS."  NOTE, DEVELOPMENTS IN THE LAW
- FEDERAL HABEAS CORPUS, 83 HAR.  L. REV. 1038, 1094 (1970). 
SIGNIFICANTLY, THE IDENTICAL INTEREST IN PRESERVING THE INTEGRITY AND
ORDERLINESS OF JUDICIAL PROCEEDINGS GIVES RISE TO THE APPLICATION OF
THE EXHAUSTION DOCTRINE EVEN WHERE A FEDERAL PRISONER ATTACKS THE
ACTION OF A FEDERAL COURT.  ID., AT 1094 - 1095.  SEE, E. G., BOWEN V.
JOHNSTON, 306 U.S. 19, 26 - 27 (1939).  IN SUCH A CASE, CONSIDERATIONS
OF FEDERALISM OBVIOUSLY DO NOT COME INTO PLAY.  YET THE EXHAUSTION
REQUIREMENT IS NEVERTHELESS APPLIED IN ORDER TO PREVENT THE DISRUPTION
OF THE ORDERLY CONDUCT OF JUDICIAL ADMINISTRATION.     WITH THESE
CONSIDERATIONS IN MIND, IT BECOMES CLEAR THAT THE COURT'S DECISION DOES
NOT SERVE THE FUNDAMENTAL PURPOSES BEHIND THE EXHAUSTION DOCTRINE.  FOR
ALTHOUGH RESPONDENTS WERE CONFINED PURSUANT TO THE JUDGMENT OF A STATE
JUDICIAL TRIBUNAL, THEIR CLAIMS DO NOT RELATE TO THEIR CONVICTIONS OR
SENTENCES, BUT ONLY TO THE ADMINISTRATIVE ACTION OF PRISON OFFICIALS
WHO SUBJECTED THEM TO ALLEGEDLY UNCONSTITUTIONAL TREATMENT, INCLUDING
THE DEPRIVATION OF GOOD-TIME CREDITS.  THIS IS NOT A CASE, IN OTHER
WORDS, WHERE FEDERAL INTERVENTION WOULD INTERRUPT A STATE PROCEEDING OR
JEOPARDIZE THE ORDERLY ADMINISTRATION OF STATE JUDICIAL BUSINESS.  NOR
IS IT A CASE WHERE AN ACTION IN FEDERAL COURT MIGHT IMPERIL THE
RELATIONSHIP BETWEEN STATE AND FEDERAL COURTS.  THE "REGULARITY OF
PROCEEDINGS HAD IN COURTS OF COORDINATE JURISDICTION,"  PARKER, SUPRA,
AT 172 - 173, IS NOT IN ANY SENSE AT ISSUE. 

TO BE SURE, RESPONDENTS DO CALL INTO QUESTION THE CONSTITUTIONAL
VALIDITY OF ACTION BY STATE OFFICIALS, AND FRICTION BETWEEN THOSE
OFFICIALS AND THE FEDERAL COURT IS BY NO MEANS AN INCONCEIVABLE
RESULT.  BUT STANDING ALONE, THAT POSSIBLITY IS SIMPLY NOT ENOUGH TO
WARRANT APPLICATION OF AN EXHAUSTION REQUIREMENT.  FIRST, WHILE WE
SPOKE IN YOUNGER V. HARRIS, 401 U.S. 37, 44 (1971), OF THE NEED FOR
FEDERAL COURTS TO MAINTAIN A "PROPER RESPECT FOR STATE FUNCTIONS,"
NEITHER THAT STATEMENT NOR OUR HOLDING THERE SUPPORTS THE INSTANT
APPLICATION OF THE EXHAUSTION DOCTRINE.  OUR CONCERN IN YOUNGER V.
HARRIS WAS THE "LONGSTANDING PUBLIC POLICY AGAINST FEDERAL COURT
INTERFERENCE WITH STATE COURT PROCEEDINGS," ID., AT 43, BY MEANS OF A
FEDERAL INJUNCTION AGAINST THE CONTINUTATION OF THOSE PROCEEDINGS. 
YOUNGER IS THUS AN INSTRUCTIVE ILLUSTRATION OF THE VERY PROPOSITION
THAT THE COURT REGRETTABLY MISCONSTRUES.  IT DOES NOT IN ANY SENSE
DEMAND, OR EVEN COUNSEL, TODAY'S DECISION. 

SECOND, THE SITUATION THAT EXISTS IN THE CASE BEFORE US -- AN ATTACK
ON STATE ADMINISTRATIVE RATHER THAN JUDICIAL ACTION -- IS THE
STEROTYPICAL SITUATION IN WHICH RELIEF UNDER ^ 1983 IS AUTHORIZED. 
SEE, E. G., MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668 (1963) (ATTACK
ON SCHOOL DISTRICTING SCHEME); DAMICO V. CALIFORNIA, 389 U.S. 416
(1967) (ATTACK ON WELFARE REQUIREMENTS); MONROE V. PAPER, 365 U.S., AT
183 (ATTACK ON POLICE CONDUCT).  IN EACH OF THESE CASES THE EXERCISE OF
FEDERAL JURISDICTION WAS POTENTIALLY OFFENSIVE TO THE STATE AND ITS
OFFICIALS.  IN EACH OF THESE CASES THE ATTACK WAS DIRECTED AT AN
IMPORTANT STATE FUNCTION IN AN AREA IN WHICH THE STATE HAS WIDE POWERS
OF REGULATION.  YET IN EACH OF THESE CASES WE EXPLICITLY HELD THAT
EXHAUSTION OF STATE REMEDIES WAS NOT REQUIRED.  AND IN COMPARABLE CASES
WE HAVE TAKEN PAINS TO INSURE THAT THE ABSTENTION DOCTRINE IS NOT USED
TO DEFEAT THE PLAINTIFF'S INITIAL CHOICE OF A FEDERAL FORUM, SEE, E.
G., ZWICKLER V. KOOTA, 389 U.S., AT 249, EVEN THOUGH THE PLAINTIFF
COULD RESERVE THE RIGHT TO LITIGATE THE FEDERAL CLAIM IN FEDERAL COURT
AT THE CONCLUSION OF THE STATE PROCEEDING.  ENGLAND V. LOUISIANA STATE
BROAD OF MEDICAL EXAMINERS.  375 U.S. 411 (1964).  LIKE JUDGE KAUFMAN,
WHO CONCURRED IN THE AFFIRMANCE OF THE CASES NOW BEFORE US, "I CANNOT
BELIEVE THAT FEDERAL JURISDICTION IN CASES INVOLVING PRISONER RIGHTS IS
ANY MORE OFFENSIVE TO THE STATE THAN FEDERAL JURISDICTION IN THE AREAS"
WHERE THE EXHAUSTION REQUIREMENT HAS BEEN EXPLICITLY RULED
INAPPLICABLE.  456 F.2D, AT 82. 

THIRD, IF THE COURT IS CORRECT IN ASSUMING THAT THE EXHAUSTION
REQUIREMENT MUST BE APPLIED WHENEVER FEDERAL JURISDICTION MIGHT BE A
SOURCE OF SUBSTANTIAL FRICTION WITH THE STATE, THEN I SIMPLY DO NOT
UNDERSTAND WHY THE COURT STOPS WHERE IT DOES IN ROLLING BACK THE
DISTRICT COURTS' JURISDICTION UNDER ^ 1983.  APPLICATION OF THE
EXHAUSTION DOCTRINE NOW TURNS ON WHETHER OR NOT THE ACTION IS DIRECTED
AT THE FACT OR DURATION OF THE PRISONER'S CONFINEMENT.  IT SEEMS HIGHLY
DOUBTFUL TO ME THAT A CONSTITUTIONAL ATTACK ON PRISON CONDITIONS IS ANY
LESS DISRUPTIVE OF FEDERAL-STATE RELATIONS THAN AN ATTACK ON PRISON
CONDITIONS JOINED WITH A PLEA FOR RESTORATION OF GOOD-TIME CREDITS. 
CHIEF JUDGE FRIENDLY EXPRESSED THE VIEW, AS DID THE JUDGES IN DISSENT
BELOW, THAT "PETITIONS OF STATE PRISONERS COMPLAINING OF THE TIME OR
CONDITIONS OF THEIR CONFINEMENT HAVE THE SAME POTENTIALITIES FOR
EXACERBATING FEDERAL-STATE RELATIONS AS PETITIONS ATTACKING THE
VALIDITY OF THEIR CONFINEMENT -- PERHAPS EVEN MORE."  456 F.2D, AT 80. 
YET THE COURT HOLDS TODAY THAT EXHAUSTION IS REQUIRED WHERE A PRISONER
ATTACKS THE DEPRIVATION OF GOOD-TIME CREDITS, BUT NOT WHERE HE
CHALLENGES ONLY THE CONDITIONS OF THIS CONFINEMENT.  IT SEEMS OBVIOUS
TO ME THAT BOTH OF THOSE PROPOSITIONS CANNOT BE CORRECT. 

FINALLY, THE COURT'S DECISION MAY HAVE THE IRONIC EFFECT OF TURNING A
SITUATION WHERE STATE AND FEDERAL COURTS ARE NOT INITIALLY IN CONFLICT
INTO A SITUATION WHERE PRECISELY SUCH CONFLICT DOES RESULT.  SINCE
RESPONDENTS' ACTIONS WOULD NEITHER INTERRUPT A STATE JUDICIAL
PROCEEDING NOR, EVEN IF SUCCESSFUL, REQUIRE THE INVALIDATION OF A STATE
JUDICIAL DECISION, "(THE QUESTION IS SIMPLY WHETHER ONE COURT OR
ANOTHER IS GOING TO DECIDE THE CASE."  NOTE, EXHAUSTION OF STATE
REMEDIES UNDER THE CIVIL RIGHTS ACT, 68 COL. L. REV. 1201, 1205 - 1206
(1968).  IF WE HAD HELD, CONSISTENTLY WITH OUR PRIOR CASES, THAT THE
PLAINTIFF HAS THE RIGHT TO CHOOSE A FEDERAL FORUM, THE EXERCISE OF THAT
RIGHT WOULD NOT OFFEND OR EMBARRASS A STATE COURT WITH CONCURRENT
JURISDICTION.  NOW, HOWEVER, A PRISONER WHO SEEKS RESTORATION OF GOOD
TIME CREDITS MUST PROCEED FIRST IN STATE COURT, ALTHOUGH HE HAS THE
OPTION OF PETITIONING THE FEDERAL COURT FOR RELIEF IF HIS STATE SUIT IS
UNSUCCESSFUL.  IF THE PRISONER DOES RESORT TO A FEDERAL HABEAS CORPUS
ACTION, THE POTENTIAL FOR FRICTION WITH THE STATE IS CERTAIN TO
INCREASE.  THE STATE IS LIKELY, AFTER ALL, TO DERIVE LITTLE PLEASURE
FROM THE FEDERAL COURT'S EFFORT TO DETERMINE WHETHER THERE WAS "EITHER
AN ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER."  28 U.S.C. ^ 2254(B).  AND SINCE IT IS THE VALIDITY
OF THE STATE COURT'S DECISION THAT IS PLACED IN ISSUE, THE STATE WILL
HAVE TO ENDURE A FEDERAL COURT INQUIRY INTO WHETHER THE STATE'S
FACTFINDING PROCESS WAS ADEQUATE TO AFFORD A FULL AND FAIR HEARING, 28
U.S.C. ^ 2254(D) (2), WHETHER THE PETITIONER WAS DENIED DUE PROCESS OF
LAW IN THE STATE COURT PROCEEDING, ID., ^ 2254(D) (7), AND WHETHER THE
STATE COURT'S FACTUAL DETERMINATIONS WERE FAIRLY SUPPORTED BY THE
RECORD, ID., ^ 2254(D) (8).  CF. TOWNSEND V. SAIN, 372 U.S. 293
(1963).  SINCE NONE OF THESE QUESTIONS WOULD EVEN ARISE IF THE COURT
HAD HELD THESE ACTIONS PROPERLY BROUGHT UNDER ^ 1983, IT SEEMS A GOOD
DEAL PREMATURE TO PROCLAIM TODAY'S DECISION A MAJOR VICTORY IN OUR
CONTINUING EFFORT TO ACHIEVE A HARMONIOUS AND HEALTHY FEDERAL-STATE
SYSTEM. 

        IV 

IN SHORT, I SEE NO BASIS FOR CONCLUDING THAT JURISDICTION UNDER ^
1983 IS, IN THIS INSTANCE, PRE-EMPTED BY THE HABEAS CORPUS REMEDY. 
RESPONDENTS' EFFORT TO BRING THESE SUITS UNDER THE PROVISIONS OF THE KU
KLUX KLAN ACT SHOULD NOT BE VIEWED AS AN ATTEMPTED CIRCUMVENTION OF THE
EXHAUSTION REQUIREMENT OF THE HABEAS CORPUS STATUTE, FOR THE EFFORT
DOES NOT IN ANY SENSE CONFLICT WITH THE POLICIES UNDERLYING THAT
REQUIREMENT.  /24/  BY MEANS OF THESE SUITS, THEY DEMAND AN IMMEDIATE
END TO ACTION UNDER COLOR OF STATE LAW THAT HAS THE ALLEGED EFFECT OF
VIOLATING FUNDAMENTAL RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION. 
THE KU KLUX KLAN ACT WAS DESIGNED TO AFFORD AN EXPEDITIOUS FEDERAL
HEARING FOR THE RESOLUTION OF PRECISELY SUCH CLAIMS AS THESE.  SINCE I
SHARE THE COURT'S VIEW THAT EXHAUSTION OF STATE JUDICIAL REMEDIES IS
NOT REQUIRED IN ANY SUIT PROPERLY BROUGHT IN FEDERAL COURT UNDER ^
1983, ANTE, AT 477, AND SINCE I AM CONVINCED THAT RESPONDENTS HAVE
PROPERLY INVOKED THE JURISDICTIONAL GRANT OF ^ 1983, I WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS. 

[[DFN 

/1/  ACT OF APRIL 20, 1871, C. 22 ^ 1, 17 STAT. 13, REV. STAT. ^

  1979. 

/2/  IN HIS COMPLAINT, RESPONDENT RODRIGUEZ ALLEGED THAT
CORRECTIONAL AUTHORITIES HAD UNLAWFULLY CANCELED FOUR MONTHS AND 14
DAYS GOOD-CONDUCT-TIME CREDITS, "WITHOUT AFFORDING PLAINTIFF NOTICE OF
ANY CHARGES OR A FAIR HEARING AT WHICH PLAINTIFF WOULD HAVE THE
ASSISTANCE OF COUNSEL AND THE OPPORTUNITY TO CONFRONT WITNESSES,
PRESENT EVIDENCE ON HIS OWN BEHALF; AND A SPECIFICATION OF THE GROUNDS
AND UNDERLYING FACTS UPON WHICH THE (AUTHORITIES') DETERMINATION WAS
BASED."  APP. 12A.  AND, FURTHER, THAT THE CANCELLATION WAS AN ACT OF
HARASSMENT AND PERSECUTION AGAINST HIM BECAUSE OF HIS FAILURE TO
PROVIDE THE AUTHORITIES WITH CERTAIN INFORMATION.  ID., AT 13A. 

RESPONDENT KATZOFF ALLEGED THAT HE WAS WRONGFULLY PLACED IN SOLITARY
CONFINEMENT AND DEPRIVED OF GOOD-CONDUCT TIME AS PUNISHMENT FOR CERTAIN
ENTRIES HE HAD MADE IN HIS DIARY.  ACCORDING TO AN AFFIDAVIT HE FILED
IN DISTRICT COURT, THE ENTRIES IN QUESTION INCLUDED A REFERENCE TO ONE
PRISON OFFICIAL AS "A CIGAR-SMOKING S. O. B.," AND TO ANOTHER AS A
"CREEP."  APP. 54A. 

RESPONDENT KRITSKY STATED IN HIS COMPLAINT THAT CORRECTIONAL
AUTHORITIES HAD DEPRIVED HIM OF GOOD TIME CREDITS WITHOUT NOTICE OF
CHARGES OR A FAIR HEARING, AND AS PART OF A "PROGRAM OF HARASSMENT AND
OPPRESSION DIRECTED AT THE PLAINTIFF FOR HAVING PARTICIPATED IN A
PEACFUL AND NON-VIOLENT WORK STRIKE WHICH ULTIMATELY CULMINATED IN
LEGISLATION BEING PASSED . . ."  APP. 100A. 

/3/  TITLE 28 U.S.C. P 2254(B) PROVIDES: 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PERSON IN
CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT BE GRANTED
UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER AN
ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER." 

/4/  INDEED, CHIEF JUDGE FRIENDLY SUGGESTED THAT THE "PROPER COURSE
FOR THE IN BANC COURT (WOULD BE) TO AFFIRM THE ORDERS OF THE DISTRICT
COURT WITHOUT WRITING OPINIONS."  456 F.2D 79, 80.  JUDGE KAUFMAN, WHO
EXPRESSED NO MISGIVINGS ABOUT OUR HOLDING IN WILWORDING V. SWENSON, 404
U.S. 249 (1971), INDICATED IN HIS CONCURRING OPINION THAT HE, TOO,
THOUGHT THE JUDGMENTS OF THE DISTRICT COURT SHOULD HAVE BEEN SUMMARILY
AFFIRMED.  ID., AT 82. 

/5/  SEE NOTE, DEVELOPMENTS IN THE LAW -- FEDERAL HABEAS CORPUS, 83
HARV. L. REV. 1038, 1079 - 1087 (1970). 

/6/  INDEED, THE COURT EXPRESSLY VIEWS OUR PRIOR CASES AS
ESTABLISHING "THAT A ^ 1983 ACTION IS A PROPER REMEDY FOR A STATE
PRISONER WHO IS MAKING A CONSTITUTIONAL CHALLENGE TO THE CONDITIONS OF
HIS PRISON LIFE, BUT NOT TO THE FACT OR LENGTH OF HIS CUSTODY.  UPON
THAT UNDERSTANDING, WE REAFFIRM THOSE HOLDINGS."  ANTE, AT 499. 

/7/  IN ADDITION TO THE CASES CITED IN TEXT, IN WHICH WE EXPLICITLY
INDICATED THAT A PRISONER MIGHT PROCEED UNDER ^ 1983 WITHOUT EXHAUSTING
STATE REMEDIES, WE HAVE ALSO REPEATEDLY UPHELD A PRISONER'S RIGHT TO
CHALLENGE THE CONDITIONS OF HIS CONFINEMENT UNDER ^ 1983, WITHOUT ANY
SUGGESTION THAT EXHAUSTION OF STATE REMEDIES IS A NECESSARY
PRECONDITION TO THE BRINGING OF THE SUIT.  SEE HAINES V. KERNER, 404
U.S. 519 (1972); CRUZ V. BETO, 405 U.S. 319 (1972); YOUNGER V. GILMORE,
404 U.S. 15 (1971); CRUZ V. HAUCK, 404 U.S. 59 (1971); MCDONALD V.
BOARD OF ELECTION, 394 U.S. 802 (1969); LEE V. WASHINGTON, 390 U.S. 333
(1968); COOPER V. PATE, 378 U.S. 546 (1964). 

/8/  SEE, E. G., SOSTRE V. MCGINNIS, 442 F.2D 178, 182 (CA2 1971)
(CONDITIONS OF SEGREGATED CONFINEMENT); JACKSON V. BISHOP, 404 F.2D 571
(CA8 1968) (CRUEL AND UNUSUAL PUNISHMENT); HIRONS V. DIRECTOR, 351 F.2D
613 (CA4 1965) (MEDICAL TREATMENT); PIERCE V. LAVALLEE, 293 F.2D 233
(CA2 1961) (RELIGIOUS FREEDOM); EDWARDS V. SCHMIDT, 321 F. SUPP. 68 (WD
WIS. 1971) (TRANSFER OF JUVENILES TO ADULT FACILITY); HANCOCK V. AVERY,
301 F. SUPP. 786 (MD TENN. 1969) (SOLITARY CONFINEMENT). 

/9/  INDEED, ONE MUST INEVITABLY WONDER WHETHER THE "CORE " OF
HABEAS CORPUS WILL NOT PROVE AS INTRACTABLE TO DEFINITION AS THE "CORE"
OF ANOTHER CONCEPT THAT SOME OF US HAVE STRUGGLED TO DEFINE.  CF.
JACOBELLIS V. OHIO, 378 U.S. 184, 197 (1964) (STEWART, J.,
CONCURRING). 

/10/  E. G., WILWORDING V. SWENSON, 404 U.S. 249 (1971). 

/11/  E. G., HOUGHTON V. SHAFER, 392 U.S. 639 (1968). 

/12/  E. G., COOPER V. PATE, 378 U.S. 546 (1964). 

/13/  E. G., HAINES V. KERNER, 404 U.S. 519 (1972). 

/14/  THAT ASSUMES, OF COURSE, THAT A DAMAGES CLAIM CANNOT BE RAISED
ON HABEAS CORPUS, ANTE, AT 494, AND THAT THE SPECIAL RES JUDICATA RULES
OF HABEAS CORPUS WOULD NOT APPLY.  IN ANY CASE, WE HAVE NEVER HELD THAT
THE DOCTRINE OF RES JUDICATA APPLIES, IN WHOLE OR IN PART, TO BAR THE
RELITIGATION UNDER ^ 1983 OF QUESTIONS THAT MIGHT HAVE BEEN RAISED, BUT
WERE NOT, OR THAT WERE RAISED AND CONSIDERED IN STATE COURT
PROCEEDINGS.  THE COURT CORRECTLY NOTES THAT A NUMBER OF LOWER COURTS
HAVE ASSUMED THAT THE DOCTRINE OF RES JUDICATA IS FULLY APPLICABLE TO
CASES BROUGHT UNDER ^ 1983.  BUT IN VIEW OF THE PURPOSES UNDERLYING
ENACTMENT OF THE ACT -- IN PARTICULAR, THE CONGRESSIONAL MISGIVINGS
ABOUT THE ABILITY AND INCLINATION OF STATE COURTS TO ENFORCE FEDERALLY
PROTECTED RIGHTS, SEE INFRA, AT 515 - 518 -- THAT CONCLUSION MAY WELL
BE IN ERROR.     /15/  BRIEF FOR RESPONDENTS 25, CITING N. Y. PENAL LAW
^ 75.00 AND N. Y. CORREC.  LAW ^^ 803, 804 (REFORMATORY-SENTENCED
PRISONERS). 

/16/  SEE, E. G., HENSLEY V. MUNICIPAL COURT, ANTE, P. 345; CARAFAS
V. LAVALLEE, 391 U.S. 234 (1968); JONES V. CUNNINGHAM, 371 U.S. 236
(1963).  THESE DECISIONS HAVE ESTABLISHED HABEAS CORPUS AS AN AVAILABLE
AND APPROPRIATE REMEDY IN SITUATIONS WHERE THE PETITIONER'S CHALLENGE
IS NOT MERELY TO THE FACT OF HIS CONFINEMENT. 

/17/  SEE PEYTON V. ROWE, 391 U.S. 54 (1968), OVERRULING MCNALLY V.
HILL, 293 U.S. 131 (1934).  UNDER THE PREMATURITY DOCTRINE, A PRISONER
COULD NOT HAVE ATTACKED THE DEPRIVATION OF GOOD-CONDUCT-TIME CREDITS
WHERE RESTORATION OF THE CREDITS WOULD SHORTEN THE LENGTH OF HIS
CONFINEMENT BUT NOT BRING IT IMMEDIATELY TO AN END. 

/18/  ACT OF FEB. 5, 1867, C. 28 ^ 1, 14 STAT. 385, NOW 28 U.S.C. ^
2241(C) (3).  PRIOR TO THAT ENACTMENT, THE WRIT WAS MADE AVAILABLE TO
SPECIAL CATEGORIES OF STATE PRISONERS.  NOTE, DEVELOPMENTS IN THE LAW -
FEDERAL HABEAS CORPUS, 83 HAR.  L. REV. 1038, 1048 N. 46 (1970). 

/19/  ACT OF JUNE 25, 1948, C. 646, 62 STAT. 967, NOW 28 U.S.C. ^
2254 (B), (C).  IT IS AGREED THAT THE PURPOSE OF THE 1948 ENACTMENT WAS
TO CODIFY THE DOCTRINE AS FORMULATED IN EX PARTE HAWK, 321 U.S. 114
944), AND OTHER DECISIONS OF THIS COURT. 

/20/  ACT OF MAR. 3, 1875, C. 137, ^ 1, 18 STAT. 470, NOW 28 U.S.C.
^ 1331. 

/21/  SEE GENERALLY CHEVIGNY, SECTION 1983 JURISDICTION:  A REPLY,
83 HARV. L. REV. 1352, 1356 - 1358 (1970). 

/22/  SEE, E. G., REMARKS OF REP. COBURN:  "THE UNITED STATES COURTS
ARE FURTHER ABOVE MERE LOCAL INFLUENCE THAN THE COUNTY COURTS; THEIR
JUDGES CAN ACT WITH MORE INDEPENDENCE, CANNOT BE PUT UNDER TERROR, AS
LOCAL JUDGES CAN; THEIR SYMPATHIES ARE NOT SO NEARLY IDENTIFIED WITH
THOSE OF THE VICINAGE; THE JURORS ARE TAKEN FROM THE STATE, AND NOT THE
NEIGHBORHOOD; THEY WILL BE ABLE TO RISE ABOVE PREJUDICES OR BAD
PASSIONS OR TERROR MORE EASILY."  CONG. GLOBE, 42D CONG., 1ST SESS.,
460 (1871). 

AND THE REMARKS OF SEN. PRATT:  "(OF THE HUNDREDS OF OUTRAGES
COMMITTED UPON LOYAL PEOPLE THROUGH THE AGENCY OF THIS KU KLUX
ORGANIZATION NOT ONE HAS BEEN PUNISHED.  THIS DEFECT IN THE
ADMINISTRATION OF THE LAWS DOES NOT EXTEND TO OTHER CASES.  VIRGOROUSLY
ENOUGH ARE THE LAWS ENFORCED AGAINST UNION PEOPLE.  THEY ONLY FAIL IN
EFFICIENCY WHEN A MAN OF KNOWN UNION SENTIMENTS, WHITE OR BLACK,
INVOKES THEIR AID.  THEN JUSTICE CLOSES THE DOOR OF HER TEMPLES."  ID.,
AT 505. 

/23/  SEE, E. G., WILWORDING V. SWENSON, SUPRA; KING V. SMITH, 392
U.S. 309, 312 N. 4 (1968); MONROE V. PAPE, 365 U.S. 167 (1961); BACON
V. RUTLAND R. CO., 232 U.S. 134 (1914); CF. NOTE, EXHAUSTION OF STATE
REMEDIES UNDER THE CIVIL RIGHTS ACT, 68 COL. L. REV. 1201 (1968). 

/24/  IN A CASE WHERE THE HABEAS CORPUS STATUTE DOES PROVIDE AN
AVAILABLE AND APPROPRIATE REMEDY, AND WHERE A PRISONER'S SELECTION OF
AN ALTERNATIVE REMEDY WOULD UNDERMINE AND EFFECTIVELY NULLIFY THE
HABEAS CORPUS EXHAUSTION REQUIREMENT, IT WOULD, OF COURSE, BE POSSIBLE
TO VIEW THE SUIT AS AN IMPERMISSIBLE ATTEMPT TO CIRCUMVENT THAT
REQUIREMENT.  BUT BY THE SAME TOKEN, IF A PRISONER SEEKS TO CHALLENGE
ONLY THE CONDITIONS OF HIS CONFINEMENT -- IN WHICH CASE THE PURPOSES
UNDERLYING THE EXHAUSTION RULE DO NOT COME INTO PLAY -- HIS FILING
SHOULD BE CONSIDERED A COMPLAINT UNDER ^ 1983 EVEN IF THE PRISONER
TERMS IT A PETITION FOR HABEAS CORPUS.  THAT RESULT IS CONSISTENT WITH
THE VIEW THAT PRISONER PETITIONS SHOULD BE LIBERALLY CONSIDERED, PRICE
V. JOHNSTON, 334 U.S. 266 (1948), AND IT REPRESENTS NO THREAT TO THE
INTEGRITY OF THE EXHAUSTION DOCTRINE.  NOTHING IN TODAY'S DECISION
SUGGESTS THAT THE DISTRICT COURTS SHOULD FOLLOW ANY OTHER PRACTICE. 

LILLIAN Z. COHEN, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR PETITIONERS.  WITH HER ON THE BRIEF WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, AND SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL. 

HERMAN SCHWARTZ ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE JACK GREENBERG, STANLEY A BASS, AND MELVIN L. WULF. 

EVELLE J. YOUNGER, ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF
ASSISTANT ATTORNEY GENERAL, DORIS H. MAIER AND ARLO E. SMITH, ASSISTANT
ATTORNEYS GENERAL, AND DERALD E. GRANBERG, DEPUTY ATTORNEY GENERAL,
FILED A BRIEF FOR THE STATE OF CALIFORNIA AS AMICUS CURIAE URGING
REVERSAL. 

ROBERT MESERVE, ROBERT KUTAK, WILLIAM FALSGRAF, DANIEL SKOLER, AND
RICHARD SINGER FILED A BRIEF FOR THE AMERICAN BAR ASSN. AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :














GEORGIA ET AL. V. UNITED STATES, 411 U.S. 526 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA 

     NO. 72 - 75.  ARGUED FEBRUARY 21 - 22, 1973--DECIDED MAY 7,

  1973; 351 F. SUPP. 444, AFFIRMED AND REMANDED. 


    ON NOVEMBER 5, 1971, THE STATE OF GEORGIA SUBMITTED TO THE

  ATTORNEY GENERAL FOR CONSIDERATION UNDER ^ 5 OF THE VOTING RIGHTS

  ACT ITS 1971 HOUSE REAPPORTIONMENT PLAN.  TWO WEEKS LATER, THE

  ATTORNEY GENERAL REQUESTED ADDITIONAL INFORMATION, WHICH WAS

  RECEIVED ON JANUARY 6, 1972.  ON MARCH 3, THE ATTORNEY GENERAL,

  AFTER CITING THE COMBINATION, INTER ALIA, OF MULTIMEMBER

  DISTRICTS, MAJORITY RUNOFF ELECTIONS, AND NUMBERED POSTS,

  OBJECTED TO THE PLAN, BEING UNABLE TO CONCLUDE THAT IT DID NOT

  HAVE A DISCRIMINATORY RACIAL EFFECT ON VOTING.  THE STATE

  LEGISLATURE THEN ENACTED ITS SUPERSEDING 1972 PLAN, WHICH WAS

  SUBMITTED ON MARCH 15 AND REJECTED BY THE ATTORNEY GENERAL ON

MARCH 24 AS NOT OVERCOMING PREVIOUS OBJECTIONS.  THE UNITED

  STATES BROUGHT THIS SUIT TO ENJOIN THE HOLDING OF ELECTIONS UNDER

  THE 1972 PLAN AFTER THE LEGISLATURE DECIDED AGAINST A NEW

  REAPPORTIONMENT.  A THREE-JUDGE DISTRICT COURT HELD THAT THE 1972

  PLAN CAME UNDER ^ 5 OF THE ACT AND ISSUED AN INJUNCTION.  HELD: 

     1.  GEORGIA'S 1972 REAPPORTIONMENT CHANGES, WHICH HAVE THE

  POTENTIAL FOR DILUTING NEGRO VOTING POWER, ARE "STANDARDS,

  PRACTICES, OR PROCEDURES WITH RESPECT TO VOTING" WITHIN THE

  MEANING OF ^ 5 OF THE VOTING RIGHTS ACT, CF. ALLEN V. STATE BOARD

  OF ELECTIONS, 393 U.S. 544.  PP. 531 - 535. 

     2.  THE ATTORNEY GENERAL, APPLYING A PERMISSIBLE REGULATION,

  PLACED THE BURDEN ON GEORGIA AS THE SUBMITTING PARTY TO PROVE

THAT THE PLAN DID NOT HAVE A RACIALLY DISCRIMINATORY PURPOSE OR

  EFFECT ON VOTING, AND THE STATE FAILED TO MEET THAT BURDEN.  PP.

  536 - 539. 

     3.  GEORGIA'S CLAIM THAT THE ATTORNEY GENERAL DID NOT

  SEASONABLY OBJECT TO THE 1971 PLAN MAY WELL BE MOOT IN VIEW OF

  HIS TIMELY OBJECTION TO THE SUPERSEDING 1972 PLAN, BUT IN ANY

  EVENT THAT CLAIM LACKS MERIT AS THE ATTORNEY GENERAL'S REGULATION

  THAT THE STATUTORY 60-DAY PERIOD BEGINS TO RUN FROM THE TIME THAT

  NECESSARY INFORMATION IS FURNISHED IS REASONABLE AND COMPORTS

  WITH THE ACT.  PP. 539 - 541. 

     4.  ELECTIONS HAVING BEEN CONDUCTED UNDER THE 1972 PLAN UNDER

  THIS COURT'S STAY ORDER, NEW ELECTIONS ARE NOT REQUIRED, BUT

FUTURE ELECTIONS UNDER THAT PLAN WILL BE ENJOINED UNTIL A PLAN

  WITHSTANDING ^ 5 CLEARANCE PROCEDURES IS SUBMITTED.  P. 541. 

     STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, MARSHALL, AND BLACKMUN, JJ., JOINED.  BURGER,

  C.J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 541. 

  WHITE, J., FILED A DISSENTING OPINION IN WHICH POWELL AND

  REHNQUIST, JJ., JOINED, POST, P. 542.  POWELL, J., FILED A

  DISSENTING OPINION, POST, P. 545. 

[[HC527'(ORIGINAL DOCUMENT PAGE 527)' 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE ATTORNEY GENERAL OF THE UNITED STATES BROUGHT THIS SUIT UNDER ^
12 (D) OF THE VOTING RIGHTS ACT OF 1965 AS AMENDED, 42 U.S.C. ^ 1973J
(D), TO ENJOIN THE STATE OF GEORGIA FROM CONDUCTING ELECTIONS FOR ITS
HOUSE OF REPRESENTATIVES UNDER THE 1972 LEGISLATIVE REAPPORTIONMENT
LAW.  A THREE-JUDGE FEDERAL COURT IN THE NORTHERN DISTRICT OF GEORGIA
AGREED THAT CERTAIN ASPECTS OF THE REAPPORTIONMENT LAW CAME WITHIN THE
AMBIT OF ^ 5 OF THE ACT, 42 U.S.C. ^ 1973C, AND THAT THE STATE, WHICH
IS SUBJECT TO THE PROVISIONS OF ^ 5, /1/  HAD NOT OBTAINED PRIOR
CLEARANCE FROM EITHER THE ATTORNEY GENERAL OR THE DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA. 

[[HC528'(ORIGINAL DOCUMENT PAGE 528)'  ACCORDINGLY, AND WITHOUT
REACHING THE QUESTION WHETHER THE REAPPORTIONMENT PLAN HAD THE PURPOSE
OR EFFECT OF "DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE
OR COLOR," 42 U.S.C. ^ 1973C, THE DISTRICT COURT ISSUED THE REQUESTED
INJUNCTION.  /2/  THE STATE BROUGHT THIS APPEAL.  WE NOTED PROBABLE
JURISDICTION, STAYING ENFORCEMENT OF THE DISTRICT COURT JUDGMENT
PENDING DISPOSITION OF THE APPEAL.  409 U.S. 911. 

FOLLOWING THE 1970 CENSUS, THE GEORGIA LEGISLATURE SET OUT TO
REAPPORTION ITS STATE HOUSE OF REPRESENTATIVES, STATE SENATE, AND
FEDERAL CONGRESSIONAL ELECTORAL DISTRICTS.  WE ARE HERE CONCERNED ONLY
WITH THE REAPPORTIONMENT PLAN FOR THE STATE HOUSE OF REPRESENTATIVES. 
/3/  THE RESULTS OF THE LEGISLATURE'S DELIBERATIONS WAS A PLAN
(HEREINAFTER THE 1971 PLAN) THAT, AS COMPARED WITH THE PRIOR 1968
SCHEME, DECREASED THE NUMBER OF DISTRICTS FROM 118 TO 105, AND
INCREASED THE NUMBER OF MULTIMEMBER DISTRICTS FROM 47 TO 49.  WHEREAS
THE PRIOR APPORTIONMENT PLAN HAD GENERALLY PRESERVED COUNTY LINES, THE
1971 PLAN PLAN DID NOT:  31 OF THE 49 MULTIMEMBER DISTRICTS AND 21 OF
THE 56 SINGLE-MEMBER DISTRICTS IRREGULARLY CROSSED COUNTY BOUNDARIES. 
THE BOUNDARIES OF NEARLY ALL DISTRICTS WERE CHANGED, AND IN MANY
INSTANCES THE NUMBER OF REPRESENTATIVES PER DISTRICT WAS ALTERED. 

[[HC529'(ORIGINAL DOCUMENT PAGE 529)'  RESIDENTS OF SOME 31 COUNTIES
FORMERLY IN SINGLE-MEMBER DISTRICTS WERE BROUGHT INTO MULTIMEMBER
DISTRICTS.  UNDER CONTINUING GEORGIA LAW, A CANDIDATE RECEIVING LESS
THAN A MAJORITY OF THE VOTES CAST FOR A POSITION WAS REQUIRED TO
PARTICIPATE IN A MAJORITY RUNOFF ELECTION.  GA. CODE ANN. ^ 34 - 1513. 
AND IN THE MULTIMEMBER DISTRICTS, EACH CANDIDATE WAS REQUIRED TO
DESIGNATE THE SEAT FOR WHICH HE WAS RUNNING, REFERRED TO AS THE
"NUMBERED POST."  GA. CODE ANN. ^ 34 - 1015. 

FROM IMPLEMENTING ANY CHANGE IN A "VOTING QUALIFICATION OR PREREQUISITE
TO VOTING, OR STANDARD, PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING"
WITHOUT FIRST OBTAINING A DECLARATORY JUDGMENT FROM THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA THAT THE PROPOSED CHANGE "DOES NOT HAVE
THE PURPOSE AND WILL NOT HAVE THE EFFECT OF DENYING OR ABRIDGING THE
RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR," OR SUBMITTING THE PLAN TO
THE ATTORNEY GENERAL OF THE UNITED STATES AND RECEIVING NO OBJECTION
WITHIN 60 DAYS.  42 U.S.C. ^ 1973C.  PURSUANT TO THIS REQUIREMENT, THE
STATE OF GEORGIA SUBMITTED THE 1971 PLAN TO THE ATTORNEY GENERAL ON
NOVEMBER 5, 1971.  TWO WEEKS LATER, A REPRESENTATIVE OF THE DEPARTMENT
OF JUSTICE WROTE TO THE STATE ATTORNEY GENERAL, REQUESTING FURTHER
INFORMATION NEEDED TO ASSESS THE RACIAL IMPACT OF THE TENDERED PLAN. 
/4/  THIS INFORMATION WAS RECEIVED ON JANUARY 6, 1972, AND ON MARCH 3,
1972, THE ATTORNEY GENERAL OF THE UNITED STATES FORMALLY OBJECTED TO
THE STATE'S PLAN.  THE OBJECTION LETTER CITED THE COMBINATION OF
MULTIMEMBER DISTRICTS, NUMBERED POSTS, MAJORITY RUN-OFF ELECTIONS, AND
THE EXTENSIVE DEPARTURE FROM THE STATE'S PRIOR POLICY OF ADHERING TO
COUNTY LINES. 

[[HC530'(ORIGINAL DOCUMENT PAGE 530)'  ON THE BASIS OF POTENTIAL
BLACK MAJORITY SINGLE-MEMBER DISTRICTS, THE ATTORNEY GENERAL WAS
"UNABLE TO CONCLUDE THAT THE PLAN DOES NOT HAVE A DISCRIMINATORY RACIAL
EFFECT ON VOTING."  THE LETTER STATED THAT THE ATTORNEY GENERAL
THEREFORE FELT OBLIGATED TO "INTERPOSE AN OBJECTION TO CHANGES
SUBMITTED BY THESE REAPPORTIONMENT PLANS." 

THE STATE LEGISLATURE IMMEDIATELY ENACTED A NEW REAPPORTIONMENT PLAN
AND REPEALED ITS PREDECESSOR.  THE 1972 PLAN INCREASED THE NUMBER OF
DISTRICTS FROM 105 TO 128, AND DECREASED THE NUMBER OF MULTI-MEMBER
DISTRICTS FROM 49 TO 32.  TWENTY-TWO OF THE MULTIMEMBER DISTRICTS AND
37 OF THE SINGLE-MEMBER DISTRICTS STILL CROSSED COUNTY BOUNDARIES. 

THIS 1972 PLAN WAS SUBMITTED TO THE ATTORNEY GENERAL ON MARCH 15,
AND HE OBJECTED ON MARCH 24.  THE ASSISTANT ATTORNEY GENERAL'S LETTER
STATED, IN PART: 

     "AFTER A CAREFUL ANALYSIS OF THE ACT REDISTRICTING THE GEORGIA

HOUSE OF REPRESENTATIVES, I MUST CONCLUDE THAT THIS

  REAPPORTIONMENT DOES NOT SATISFACTORILY REMOVE THE FEATURES FOUND

  OBJECTIONABLE IN YOUR PRIOR SUBMISSION, NAMELY, THE COMBINATION

  OF MULTI-MEMBER DISTRICTS, NUMBERED POSTS, AND A MAJORITY

  (RUNOFF) REQUIREMENT DISCUSSED IN MY MARCH 3, 1972 LETTER TO YOU

  INTERPOSING AN OBJECTION TO YOUR EARLIER SECTION 5 SUBMISSION. 

  ACCORDINGLY, AND FOR THE REASONS ENUNCIATED IN MY MARCH 3, 1972,

  LETTER I MUST ON BEHALF OF THE ATTORNEY GENERAL, OBJECT TO S.B.

  690 REAPPORTIONING THE GEORGIA HOUSE OF REPRESENTATIVES." 

WHEN THE GEORGIA LEGISLATURE RESOLVED THAT IT WOULD TAKE NO FURTHER
STEPS TO ENACT A NEW PLAN, THE ATTORNEY GENERAL BROUGHT THE PRESENT
LAWSUIT. 

[[HC531'(ORIGINAL DOCUMENT PAGE 531)' 

THE STATE OF GEORGIA CLAIMS THAT ^ 5 IS INAPPLICALBE TO THE 1972
HOUSE PLAN, BOTH BECAUSE THE ACT DOES NOT REACH "REAPPORTIONMENT" AND
BECAUSE THE 1972 PLAN DOES NOT CONSTITUTE A CHANGE FROM PROCEDURES "IN
FORCE OR EFFECT ON NOVEMBER 1, 1964."  IF APPLICABLE, THE ACT IS
CLAIMED TO BE UNCONSTITUTIONAL AS APPLIED.  THE STATE ALSO CHALLENGES
TWO ASPECTS OF THE ATTORNEY GENERAL'S CONDUCT OF THE ^ 5 OBJECTION
PROCEDURE, CLAIMING, FIRST, THAT THE ATTORNEY GENERAL'S CANNOT OBJECT
TO A STATE PLAN WITHOUT FINDING THAT IT IN FACT HAS A DISCRIMINATORY
PURPOSE OR EFFECT, AND SECOND, THAT THE ATTORNEY GENERAL'S OBJECTION TO
THE 1971 PLAN WAS NOT MADE WITHIN THE 60-DAY TIME PERIOD ALLOWED FOR
OBJECTION UNDER THE ACT. 

        I 

DESPITE THE FACT THAT MULTIMEMBER DISTRICTS, NUMBERED POSTS, AND A
MAJORITY RUNOFF REQUIREMENT WERE FEATURES OF GEORGIA ELECTION LAW PRIOR
TO NOVEMBER 1, 1964, THE CHANGES THAT FOLLOWED FROM THE 1972
REAPPORTIONMENT ARE PLAINLY SUFFICIENT TO INVOKE ^ 5 IF THAT SECTION OF
THE ACT REACHES THE SUBSTANCE OF THOSE CHANGES.  SECTION 5 IS NOT
CONCERNED WITH A SIMPLE INVENTORY OF VOTING PROCEDURES, BUT RATHER WITH
THE REALITY OF CHANGED PRACTICES AS THEY AFFECT NEGRO VOTERS.  IT SEEMS
CLEAR THAT THE EXTENSIVE REORGANIZATION OF VOTING DISTRICTS AND THE
CREATION OF MULTI-MEMBER DISTRICTS IN PLACE OF SINGLE-MEMBER DISTRICTS
IN CERTAIN AREAS AMOUNTED TO SUBSTANTIAL DEPARTURES FROM THE ELECTORAL
STATE OF THINGS UNDER PREVIOUS LAW.  THE REAL QUESTION IS WHETHER THE
SUBSTANCE OF THESE CHANGES UNDERTAKEN AS PART OF THE STATE
REAPPORTIONMENT ARE "STANDARDS, PRACTICES, OR PROCEDURES WITH RESPECT
TO VOTING"  WITHIN THE MEANING OF ^ 5. 

THE PRIOR DECISIONS OF THIS COURT COMPEL THE CONCLUSION THAT CHANGES
OF THE SORT INCLUDED IN GEORGIA'S 1972 HOUSE REAPPORTIONMENT PLAN ARE
COGNIZABLE UNDER ^ 5.  IN SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301,
WE UPHELD THE BASIC CONSTITUTIONALITY OF THE VOTING RIGHTS ACT. 

[[HC532'(ORIGINAL DOCUMENT PAGE 532)'  MR. JUSTICE BLACK DISSENTED
FROM THAT JUDGMENT, PRECISELY DESCRIBING THE BROAD SWEEP OF ^ 5: 

"SECTION 5 GOES ON TO PROVIDE THAT A STATE COVERED BY ^ 4 (B) CAN IN
NO WAY AMEND ITS CONSTITUTION OR LAWS RELATING TO VOTING WITHOUT FIRST
TRYING TO PERSUADE THE ATTORNEY GENERAL OF THE UNITED STATES OR THE
FEDERAL DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THAT THE NEW
PROPOSED LAWS DO NOT HAVE THE PURPOSE AND WILL NOT HAVE THE EFFECT OF
DENYING THE RIGHT TO VOTE TO CITIZENS ON ACCOUNT OF THEIR RACE OR
COLOR."  383 U.S., AT 356 (CONCURRING AND DISSENTING OPINION). 

THE APPLICABILITY OF ^ 5 TO ELECTION LAW CHANGES SUCH AS THOSE
ENACTED BY GEORGIA IN ITS 1972 PLAN WAS ALL BUT CONCLUSIVELY
ESTABLISHED BY THE OPINION OF THIS COURT IN ALLEN V. STATE BOARD OF
ELECTIONS, 393 U.S. 544.  THE ALLEN OPINION, DEALING WITH FOUR
COMPANION CASES, HELD THAT ^ 5 APPLIED TO A BROAD RANGE OF VOTING LAW
CHANGES, AND WAS CONSTITUTIONAL AS APPLIED.  WITH RESPECT TO THE REACH
OF ^ 5, WE HELD THAT "(THE LEGISLATIVE HISTORY ON THE WHOLE SUPPORTS
THE VIEW THAT CONGRESS INTENDED TO REACH ANY STATE ENACTMENT WHICH
ALTERED THE ELECTION LAW OF A COVERED STATE IN EVEN A MINOR WAY."  ID.,
AT 566.  ONE OF THE COMPANION CASES, FAIRLEY V. PATTERSON, INVOLVED A
CLAIM THAT A CHANGE FROM DISTRICT TO AT-LARGE VOTING FOR COUNTY
SUPERVISOR WAS A CHANGE IN A "STANDARD, PRACTICE, OR PROCEDURE WITH
RESPECT TO VOTING."  THE CHALLENGED PROCEDURE WAS HELD TO BE COVERED BY
^ 5.  WE NOTED THAT "(THE RIGHT TO VOTE CAN BE AFFECTED BY A DILUTION
OF VOTING POWER AS WELL AS BY AN ABSOLUTE PROHIBITION ON CASTING A
BALLOT.  SEE REYNOLDS V. SIMS, 377 U.S. 533, 555 (1964).  ID., AT 569. 
IN HOLDING THAT ^ 5 REACHED VOTING LAW CHANGES THAT THREATENED TO
DILUTE NEGRO VOTING POWER, AND IN CITING REYNOLDS V. SIMS, WE
IMPLICITLY RECOGNIZED THE APPLICABILITY OF ^ 5 TO SIMILAR BUT MORE
SWEEPING ELECTION LAW CHANGES ARISING FROM THE REAPPORTIONMENT OF STATE
LEGISLATURES. 

[[HC533'(ORIGINAL DOCUMENT PAGE 533)'  393 U.S., AT 565 - 566, 583 -
586 (HARLAN, J., CONCURRING AND DISSENTING). 

HAD CONGRESS DISAGREED WITH THE INTERPRETATION OF ^ 5 IN ALLEN, IT
HAD AMPLE OPPORTUNITY TO AMEND THE STATUTE.  AFTER EXTENSIVE
DELIBERATIONS IN 1970 ON BILLS TO EXTEND THE VOTING RIGHTS ACT DURING
WHICH THE ALLEN CASE WAS REPEATEDLY DISCUSSED, /5/  THE ACT WAS
EXTENDED FOR FIVE YEARS, WITHOUT ANY SUBSTANTIVE MODIFICATION OF ^ 5. 
PUB. L. 91 - 285, 84 STAT. 314, 315.  WE CAN ONLY CONCLUDE, THEN, THAT
ALLEN CORRECTLY INTERPRETED THE CONGRESSIONAL DESIGN WHEN IT HELD THAT
"THE ACT GIVES A BROAD INTERPRETATION TO THE RIGHT TO VOTE, RECOGNIZING
THAT VOTING INCLUDES 'ALL ACTION NECESSARY TO MAKE A VOTE EFFECTIVE.'" 
393 U.S., AT 565 - 566. 

ANOTHER MEASURE OF THE DECISIVENESS WITH WHICH ALLEN CONTROLS THE
PRESENT CASE IS THE ACTUAL PRACTICE OF COVERED STATES SINCE THE ALLEN
CASE WAS DECIDED.  GEORGIA, FOR EXAMPLE, SUBMITTED ITS 1971 PLAN TO THE
ATTORNEY GENERAL BECAUSE IT CLEARLY BELIEVED THAT PLAN WAS COVERED BY ^
5.  ITS SUBMISSION WAS "MADE PURSUANT TO ^ 5" AND THE STATE ATTORNEY
GENERAL EXPLAINED IN HIS SUBMISSION THAT THE 1968 REAPPORTIONMENT OF
THE GEORGIA HOUSE OF REPRESENTATIVES "WAS NOT SUBMITTED BECAUSE AT THAT
TIME, PRIOR TO ALLEN V. BOARD OF ELECTIONS, . . . IT WAS BELIEVED TO BE
UNNECESSARY TO SUBMIT REAPPORTIONMENT PLANS TO THE UNITED STATES
ATTORNEY GENERAL PURSUANT TO THE VOTING RIGHTS ACT OF 1965." 

[[HC534'(ORIGINAL DOCUMENT PAGE 534)'  WHEN THE ATTORNEY GENERAL
OBJECTED, GEORGIA CHANGED ITS HOUSE PLAN AND RESUBMITTED IT PURSUANT TO
^ 5.  OTHER STATES COVERED BY THE ACT HAVE ALSO READ ALLEN AS
CONTROLLING.  THE BRIEF FOR THE UNITED STATES ADVISED US THAT AS OF
DECEMBER 1, 1972, 381 POST-ALLEN REAPPORTIONMENT PLANS HAD BEEN
PRESENTED TO THE ATTORNEY GENERAL BY VARIOUS STATES FOR ^ 5 APPROVAL. 

IN THE PRESENT POSTURE OF THIS CASE, THE QUESTION IS NOT WHETHER THE
REDISTRICTING OF THE GEORGIA HOUSE, INCLUDING EXTENSIVE SHIFTS FROM
SINGLE TO MULTIMEMBER DISTRICTS, IN FACT HAD A RACIALLY DISCRIMINATORY
PURPOSE OR EFFECT.  THE QUESTION, RATHER, IS WHETHER SUCH CHANGES HAVE
THE POTENTIAL FOR DILUTING THE VALUE OF THE NEGRO VOTE AND ARE WITHIN
THE DEFINITIONAL TERMS OF ^ 5.  IT IS BEYOND DOUBT THAT SUCH A
POTENTIAL EXISTS, CF. WHITCOMB V. CHAVIS, 403 U.S. 124, 141 - 144.  IN
VIEW OF THE TEACHING OF ALLEN, /6/  REAFFIRMED IN PERKINS V. MATTHEWS,
400 U.S. 379, WE HOLD THAT THE DISTRICT COURT WAS CORRECT IN DECIDING
THAT THE CHANGES ENACTED IN THE 1972 REAPPORTIONMENT PLAN FOR THE
GEORGIA HOUSE OF REPRESENTATIVES WERE WITHIN THE AMBIT OF ^ 5 OF THE
VOTING RIGHTS ACT.  /7/ 

[[HC535'(ORIGINAL DOCUMENT PAGE 535)'  AND FOR THE REASONS STATED AT
LENGTH IN SOUTH CAROLINA V. KATZENBACH, 383 U.S., AT 308 - 337, WE
REAFFIRM THAT THE ACT IS A PERMISSIBLE EXERCISE OF CONGRESSIONAL POWER
UNDER ^ 2 OF THE FIFTEENTH AMENDMENT. 

[[HC536'(ORIGINAL DOCUMENT PAGE 536)'

        II 

BY WAY OF IMPLEMENTING THE PERFORMANCE OF HIS OBLIGATION TO PASS ON
STATE SUBMISSIONS UNDER ^ 5, THE ATTORNEY GENERAL HAS PROMULGATED AND
PUBLISHED IN THE FEDERAL REGISTER CERTAIN ADMINISTRATIVE REGULATIONS,
28 CFR PART 51.  THE APPELLANTS CLAIM THESE REGULATIONS ARE WITHOUT
LEGISLATIVE AUTHORIZATION, AND OBJECT IN PARTICULAR TO THE APPLICATION
IN THE PRESENT CASE OF TWO REGULATIONS WHICH SET FORTH THE STANDARDS
FOR DECISION ON SUBMISSIONS AND MORE FULLY DEFINE THE 60-DAY TIME
PERIOD PROVIDED IN THE ACT.     IT IS TRUE, AS THE APPELLANTS CONTEND,
THAT ^ 5 ITSELF DOES NOT AUTHORIZE THE ATTORNEY GENERAL TO PROMULGATE
ANY REGULATIONS.  BUT ^ 5 IS ALSO SILENT AS TO THE PROCEDURES THE
ATTORNEY GENERAL IS TO EMPLOY IN DECIDING WHETHER OR NOT TO OBJECT TO
STATE SUBMISSIONS, AS TO THE STANDARDS GOVERNING THE CONTENTS OF THOSE
SUBMISSIONS, AND AS TO THE MEANING OF THE 60-DAY TIME PERIOD IN WHICH
THE ATTORNEY GENERAL IS TO OBJECT, IF AT ALL.  RATHER THAN READING THE
STATUTE TO GRANT HIM UNFETTERED DISCRETION AS TO PROCEDURES, STANDARDS,
AND ADMINISTRATION IN THIS SENSITIVE AREA, THE ATTORNEY GENERAL HAS
CHOSEN INSTEAD TO FORMULATE AND PUBLISH OBJECTIVE GROUND RULES.  IF
THESE REGULATIONS ARE REASONABLE AND DO NOT CONFLICT WITH THE VOTING
RIGHTS ACT ITSELF, THEN 5 U.S.C. ^ 301, WHICH GIVES TO ((THE HEAD OF AN
EXECUTIVE DEPARTMENT"  THE POWER TO "PRESCRIBE REGULATIONS FOR THE
GOVERNMENT OF HIS DEPARTMENT, . . . (AND) THE DISTRIBUTION AND
PERFORMANCE OF ITS BUSINESS.  . . , " IS SURELY AMPLE LEGISLATIVE
AUTHORITY FOR THE REGULATIONS.  SEE UNITED STATES V. MOREHEAD, 243 U.S.
607, SMITH V. UNITED STATES, 170 U.S. 372. 

IN 28 CFR ^ 51.19, THE ATTORNEY GENERAL HAS SET FORTH THE STANDARDS
TO BE EMPLOYED IN DECIDING WHETHER OR NOT TO OBJECT TO A STATE
SUBMISSION.  THE REGULATION STATES THAT THE BURDEN OF PROOF IS ON THE
SUBMITTING PARTY, AND THAT THE ATTORNEY GENERAL WILL REFRAIN FROM
OBJECTING ONLY IF HIS REVIEW OF THE MATERIAL SUBMITTED SATISFIES HIM
THAT THE PROPOSED CHANGE DOES NOT HAVE A RACIALLY DISCRIMINATORY
PURPOSE OR EFFECT. 

[[HC537'(ORIGINAL DOCUMENT PAGE 537)'  IF HE IS PERSUADED TO THE
CONTRARY, OR IF HE CANNOT WITHIN THE 60-DAY TIME PERIOD SATISFY HIMSELF
THAT THE CHANGE IS WITHOUT A DISCRIMINATORY PURPOSE OR EFFECT, THE
REGULATION STATES THAT THE ATTORNEY GENERAL WILL OBJECT TO THE
SUBMISSION.  /8/  IN OBJECTING TO THE 1971 PLAN, THE ASSISTANT ATTORNEY
GENERAL WROTE THAT HE WAS "UNABLE TO CONCLUDE THAT THE PLAN DOES NOT
HAVE A DISCRIMINATORY RACIAL EFFECT ON VOTING."  THE OBJECTION LETTER
TO THE 1972 PLAN DID NOT SPECIFY A DEGREE OF CERTAINTY AS TO THE PLAN'S
DISCRIMINATORY IMPACT, BUT INSTEAD STATED THAT THE NEW PLAN HAD NOT
REMEDIED THE FEATURES FOUND OBJECTIONABLE IN ITS PREDECESSOR. 

ALTHOUGH BOTH OBJECTIONS WERE CONSISTENT WITH THE ATTORNEY GENERAL'S
REGULATIONS, THE APPELLANTS IN EFFECT ATTACK THE LEGITIMACY OF THE
REGULATION DESCRIBED ABOVE IN CONTENDING THAT THE ATTORNEY GENERAL IS
WITHOUT POWER TO OBJECT UNLESS HE HAS ACTUALLY FOUND THAT THE CHANGES
CONTAINED IN A SUBMISSION HAVE A DISCRIMINATORY PURPOSE OR EFFECT. 

[[HC538'(ORIGINAL DOCUMENT PAGE 538)'  IN ASSESSING THIS CLAIM, IT IS
IMPORTANT TO FOCUS ON THE ENTIRE SCHEME OF ^ 5.  THAT PORTION OF THE
VOTING RIGHTS ACT ESSENTIALLY FREEZES THE ELECTION LAWS OF THE COVERED
STATES UNLESS A DECLARATORY JUDGMENT IS OBTAINED IN THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA HOLDING THAT A PROPOSED CHANGE IS WITHOUT
DISCRIMINATORY PURPOSE OR EFFECT.  THE ALTERNATIVE PROCEDURE OF
SUBMISSION TO THE ATTORNEY GENERAL "MERELY GIVES THE COVERED STATE A
RAPIST METHOD OF RENDERING A NEW STATE ELECTION LAW ENFORCEABLE." 
ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S., AT 549. 

IT IS WELL ESTABLISHED THAT IN A DECLARATORY JUDGMENT ACTION UNDER ^
5, THE PLAINTIFF STATE HAS THE BURDEN OF PROOF.  /9/  WHAT THE ATTORNEY
GENERAL'S REGULATIONS DO IS TO PLACE THE SAME BURDEN ON THE SUBMITTING
PARTY IN A ^ 5 OBJECTION PROCEDURE.  THOUGH THE CHOICE OF LANGUAGE IN
THE OBJECTION LETTER SENT TO THE STATE OF GEORGIA WAS NOT A MODEL OF
PRECISION, IN THE CONTEXT OF THE PROMULGATED REGULATIONS THE LETTER
SURELY NOTIFIED THE STATE WITH SUFFICIENT CLARITY THAT IT HAD NOT
SUSTAINED ITS BURDEN OF PROVING THAT THE PROPOSED CHANGES WERE FREE OF
A RACIALLY DISCRIMINATORY EFFECT.  IT IS NOT NECESSARY TO HOLD THAT
THIS ALLOCATION OF THE BURDEN OF PROOF BY THE ATTORNEY GENERAL WAS HIS
ONLY POSSIBLE CHOICE UNDER THE ACT, IN ORDER TO FIND IT A REASONABLE
MEANS OF ADMINISTERING HIS ^ 5 OBLIGATION.  ANY LESS STRINGENT STANDARD
MIGHT WELL HAVE RENDERED THE FORMAL DECLARATORY JUDGMENT PROCEDURE A
DEAD LETTER BY MAKING AVAILABLE TO COVERED STATES A FAR SMOOTHER PATH
TO CLEARANCE.  THE ATTORNEY GENERAL'S CHOICE OF A PROOF STANDARD WAS
THUS AT LEAST REASONABLE AND CONSISTENT WITH THE ACT, AND WE HOLD THAT
HIS OBJECTION PURSUANT TO THAT STANDARD WAS LAWFUL AND EFFECTIVE. 

[[HC539'(ORIGINAL DOCUMENT PAGE 539)' 

THE APPELLANT'S FINAL CONTENTION IS THAT THE ATTORNEY GENERAL'S
OBJECTION TO THE 1971 PLAN WAS UNTIMELY, AND SO THE SUBMITTED PLAN
SHOULD HAVE BEEN HELD BY THE DISTRICT COURT TO HAVE GONE INTO EFFECT. 
IT IS FAR FROM CLEAR THAT THIS CLAIM IS NOT SIMPLY MOOT, SINCE THE
STATE ENACTMENT ESTABLISHING THE 1972 PLAN EXPLICITLY REPEALED THE 1971
PLAN, /10/  AND THE OBJECTION TO THE 1972 PLAN WAS CLEARLY WITHIN THE
STATUTORY TIME PERIOD.  IN ANY EVENT, THE CLAIM IS WITHOUT MERIT. 

IN PROMULGATING REGULATIONS, THE ATTORNEY GENERAL DEALT WITH SEVERAL
ASPECTS OF THE 60-DAY TIME LIMIT ESTABLISHED BY ^ 5 OF THE ACT.  THE
REGULATIONS PROVIDE THAT ALL CALENDAR DAYS COUNT AS PART OF THE
ALLOTTED PERIOD, THAT PARTIES WHOSE SUBMISSIONS ARE OBJECTED TO MAY
SEEK RECONSIDERATION ON THE BASIS OF NEW INFORMATION AND OBTAIN A
RULING WITHIN 60 DAYS OF THAT REQUEST, AND THAT THE 60-DAY PERIOD SHALL
COMMENCE FROM THE TIME THE DEPARTMENT OF JUSTICE RECEIVES A SUBMISSION
SATISFYING THE ENUMERATED REQUIREMENTS.  28 CFR ^ 513 (B) - (D). 

IN THE PRESENT CASE, THE ATTORNEY GENERAL FOUND THE INITIAL
SUBMISSION OF THE 1971 PLAN INCOMPLETE UNDER THE REGULATIONS.  TWO
WEEKS AFTER RECEIVING IT, HE REQUESTED ADDITIONAL INFORMATION.  /11/
HIS LETTER REFERRED TO 28 CFR ^ 51.18, A REGULATION PROVIDING FOR A
REQUEST FOR ADDITIONAL INFORMATION, AND NOTED THE ADDITIONAL REGULATORY
PROVISION THAT THE 60-DAY PERIOD WOULD NOT COMMENCE UNTIL THE REQUESTED
INFORMATION WAS RECEIVED. 

[[HC540'(ORIGINAL DOCUMENT PAGE 540)'  THE STATE DID NOT SUBMIT THE
REQUESTED DATA UNTIL JANUARY 6, 1972.  UNDER THE ABOVE-MENTIONED
REGULATION THE 60-DAY PERIOD COMMENCED ON THAT DATE, AND THE DEPARTMENT
OF JUSTICE MADE ITS OBJECTION WITHIN 60 DAYS--ON MARCH 3. 

THE APPELLANTS ARGUE THAT THE ATTORNEY GENERAL HAS GRANTED HIMSELF
MORE TIME THAN THE STATUTE PROVIDES BY PROMULGATING REGULATIONS
SUSPENDING THE TIME PERIOD UNTIL A COMPLETE SUBMISSION IS RECEIVED. 
HERE AGAIN, THE QUESTION IS WHETHER THE REGULATION IS A REASONABLE
ADMINISTRATIVE EFFECTUATION OF ^ 5 OF THE ACT.  THE JUDGMENT THAT THE
ATTORNEY GENERAL MUST MAKE IS A DIFFICULT AND COMPLEX ONE, AND NO ONE
WOULD ARGUE THAT IT SHOULD BE MADE WITHOUT ADEQUATE INFORMATION.  THERE
IS NO SERIOUS CLAIM IN THIS CASE THAT THE ADDITIONAL INFORMATION
REQUESTED WAS UNNECESSARY OR IRRELEVANT TO ^ 5 EVALUATION OF THE
SUBMITTED REAPPORTIONMENT PLAN.  /12/  YET, IF THE ATTORNEY GENERAL
WERE DENIED THE POWER TO SUSPEND THE 60-DAY PERIOD UNTIL A COMPLETE
SUBMISSION WERE TENERED, HIS ONLY PLAUSIBLE RESPONSE TO AN INADEQUATE
OR INCOMPLETE SUBMISSION WOULD BE SIMPLY TO OBJECT TO IT.  HE WOULD
THEN LEAVE IT TO THE STATE TO SUBMIT ADEQUATE INFORMATION IF IT WISHED
TO TAKE ADVANTAGE OF THIS MEANS OF CLEARANCE UNDER ^ 5. 

[[HC541'(ORIGINAL DOCUMENT PAGE 541)'  THIS RESULT WOULD ONLY ADD
ACRIMONY TO THE ADMINISTRATION OF ^ 5.  WE CONCLUDE, THEREFORE, THAT
THIS FACET OF THE ATTORNEY GENERAL'S REGULATIONS IS WHOLLY REASONABLE
AND CONSISTENT WITH THE ACT.  /13/

        III 

FOR THE FOREGOING REASONS, THE JUDGMENT OF THE DISTRICT COURT IS
AFFIRMED.  SINCE, HOWEVER, ELECTIONS WERE CONDUCTED UNDER THE DISPUTED
1972 PLAN BY REASON OF THIS COURT'S STAY ORDER, IT WOULD BE INEQUITABLE
TO REQUIRE NEW ELECTIONS AT THIS TIME. 

THE CASE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS THAT
ANY FUTURE ELECTIONS UNDER THE GEORGIA HOUSE REAPPORTIONMENT PLAN BE
ENJOINED UNLESS AND UNTIL THE STATE, PURSUANT TO ^ 5 OF THE VOTING
RIGHTS ACT, TENDERS TO THE ATTORNEY GENERAL A PLAN TO WHICH HE DOES NOT
OBJECT, OR OBTAINS A FAVORABLE DECLARATORY JUDGMENT FROM THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA. 

              IT IS SO ORDERED. 

/1/  A STATE IS SUBJECT TO ^ 5 IF IT QUALIFIES UNDER ^ 4 (B), 42
U.S.C. ^ 1973B (B).  COVERED STATES ARE THOSE WHICH ON NOVEMBER 1,
1964, EMPLOYED ANY OF SEVERAL ENUMERATED TESTS OR DEVICES AS A
PREREQUISITE TO VOTING, AND IN WHICH LESS THAN 50% OF ELIGIBLE VOTERS
WERE REGISTERED TO VOTE OR ACTUALLY VOTED IN THE NOVEMBER 1964
PRESIDENTIAL ELECTION.  STATES THAT MEET IDENTICAL CRITERIA WITH
RESPECT TO THE 1968 PRESIDENTIAL ELECTION ARE ALSO COVERED UNDER THE
AMENDED ACT.  IT IS STIPULATED THAT GEORGIA IS COVERED UNDER ^ 4 (B). 

/2/  351 F.SUPP.  444, 446 - 447. 

/3/ NO OBJECTION WAS INTERPOSED WITH RESPECT TO THE STATE SENATE OR
FEDERAL CONGRESSIONAL DISTRICTS. 

/4/  THE JUSTICE DEPARTMENT ASKED FOR CENSUS MAPS OF THE 1964 AND
1968 HOUSE DISTRICTS; THE DISTRIBUTION OF WHITE AND NONWHITE POPULATION
WITHIN THE 1964, 1968, AND 1971 DISTRICTS; A HISTORY OF THE PRIMARY AND
GENERAL ELECTIONS IN WHICH NEGRO CANDIDATES RAN; DATA, INCLUDING RACE,
WITH RESPECT TO ALL ELECTED STATE REPRESENTATIVES; AND THE LEGISLATIVE
HISTORY OF ALL REDISTRICTING BILLS. 

/5/  SEE, E.G., HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 4249, H.R. 5538, AND SIMILAR
PROPOSALS, 91ST CONG., 1ST SESS., 1, 4, 18, 83, 130 - 131, 133, 147 -
149, 154 - 155, 182 - 184, 402 - 454; HEARINGS BEFORE THE SUBCOMMITTEE
ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY ON
BILLS TO AMEND THE VOTING RIGHTS ACT OF 1965, 91ST CONG., 1ST AND 2D
SESS., 48, 195 - 196, 369 - 370, 397 - 398, 426 - 427, 469.  DAVID L.
NORMAN, THEN DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION,
TESTIFIED THAT, "FROM COURT DECISIONS, ALL THESE REDISTRICTING PLANS
ARE GOING TO HAVE TO BE SUBMITTED TO THE ATTORNEY GENERAL FOR HIS
APPROVAL BECAUSE THEY ARE VOTING CHANGES."  SENATE HEARINGS, SUPRA, AT
507. 

/6/  THE APPELLANTS POINT TO LANGUAGE IN THE ALLEN OPINION THAT,
THEY SAY, LEFT OPEN THE QUESTION OF THE APPLICABILITY OF ^ 5 TO A STATE
REAPPORTIONMENT LAW.  THE CITED PASSAGE IN ALLEN IS AS FOLLOWS: 

"APPELLEES IN NO. 25 (FAIRLEY V. PATTERSON) ALSO ARGUE THAT ^ 5 WAS
NOT INTENDED TO APPLY TO A CHANGE FROM DISTRICT TO AT-LARGE VOTING,
BECAUSE APPLICATION OF ^ 5 WOULD CAUSE A CONFLICT IN THE ADMINISTRATION
OF REAPPORTIONMENT LEGISLATION.  THEY CONTEND THAT UNDER SUCH A BROAD
READING OF ^ 5, ENFORCEMENT OF A REAPPORTIONMENT PLAN COULD BE ENJOINED
FOR FAILURE TO MEET THE ^ 5 APPROVAL REQUIREMENTS, EVEN THOUGH THE PLAN
HAD BEEN APPROVED BY A FEDERAL COURT.  APPELLEES URGE THAT CONGRESS
COULD NOT HAVE INTENDED TO FORCE THE STATES TO SUBMIT A REAPPORTIONMENT
PLAN TO TWO DIFFERENT COURTS. 

"WE MUST REJECT A NARROW CONSTRUCTION THAT APPELLEES WOULD GIVE TO ^
5.  . . .

        *          *          *          * 

". . . THE ARGUMENT THAT SOME ADMINISTRATIVE PROBLEM MIGHT ARISE IN
THE FUTURE DOES NOT ESTABLISH THAT CONGRESS INTENDED THAT ^ 5 HAVE A
NARROW SCOPE; WE LEAVE TO ANOTHER CASE A CONSIDERATION OF ANY POSSIBLE
CONFLICT."  393 U.S. 544, 564 - 565, 569. 

THE CAVEAT IMPLICIT IN THIS LANGUAGE WOULD SUPPORT THE APPELLANTS'
POSITION ONLY IF PRACTICAL PROBLEMS OF ADMINISTRATION HAD EMERGED IN
THE PERIOD THAT HAS ELAPSED SINCE ALLEN WAS DECIDED.  THIS DOES NOT
APPEAR TO HAVE BEEN THE CASE.  THE BRIEF OF THE UNITED STATES ADVISES
US THAT THE DEPARTMENT OF JUSTICE HAS ADOPTED PROCEDURES DESIGNED TO
MINIMIZE ANY CONFLICTS BETWEEN ^ 5 ADMINISTRATIVE REVIEW AND FEDERAL
COURT LITIGATION BASED ON FOURTEENTH OR FIFTEENTH AMENDMENT ATTACKS
UPON STATE REAPPORTIONMENT PLANS.  WHERE A REAPPORTIONMENT PLAN HAS
BEEN PRESCRIBED BY FEDERAL JUDICIAL DECREE, THE ATTORNEY GENERAL DOES
NOT REVIEW IT.  SEE CONNOR V. JOHNSON, 402 U.S. 690, 691.  WHERE A PLAN
HAS BEEN SUBMITTED TO THE ATTORNEY GENERAL AND IS AT THE SAME TIME
BEING LITIGATED WITH RESPECT TO A FIFTEENTH AMENDMENT CLAIM, THE
ATTORNEY GENERAL HAS DEFERRED TO THE JUDICIAL DETERMINATION REGARDING
RACIAL DISCRIMINATION.  FINALLY, THE NUMBER OF INSTANCES PRESENTING AN
ADMINISTRATIVE-JUDICIAL OVERLAP HAS BEEN SMALL.  OF THE 381
REAPPORTIONMENTS SUBMITTED TO THE ATTORNEY GENERAL, ONLY 19 OF THE
OBJECTED-TO SUBMISSIONS WERE INVOLVED IN LITIGATION WHEN SUBMITTED. 

/7/  GEORGIA HAS ARGUED THAT ^ 5 APPROVAL IS NEEDED ONLY WITH
RESPECT TO THOSE ELECTORAL DISTRICTS IN WHICH A CHANGE IN A "STANDARD,
PRACTICE OR PROCEDURE WITH RESPECT TO VOTING"  OCCURRED.  IN AN
APPROPRIATE CASE, A STATE MIGHT ESTABLISH THAT A REAPPORTIONMENT PLAN
LEFT SOME DISTRICTS UNAFFECTED BY EVEN A MINOR CHANGE WITH THE
POTENTIAL FOR DILUTING THE VALUE OF THE NEGRO VOTE.  WE DO NOT DECIDE
WHETHER GEORGIA COULD SHOW THE EXISTENCE OF ANY UNAFFECTED DISTRICTS IN
THIS CASE, AND WE LEAVE THAT ISSUE FOR CONSIDERATION BY THE DISTRICT
COURT ON REMAND. 

/8/  TITLE 28 CFR ^ 51.19, IN PERTINENT PART, STATES THAT:  "THE
BURDEN OF PROOF ON THE SUBMITTING AUTHORITY IS THE SAME IN SUBMITTING
CHANGES TO THE ATTORNEY GENERAL AS IT WOULD BE IN SUBMITTING CHANGES TO
THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  . . . IF THE ATTORNEY
GENERAL IS SATISFIED THAT THE SUBMITTED CHANGE DOES NOT HAVE A RACIALLY
DISCRIMINATORY PURPOSE OR EFFECT, HE WILL NOT OBJECT TO THE CHANGE AND
WILL SO NOTIFY THE SUBMITTING AUTHORITY.  IF THE EVIDENCE AS TO THE
PURPOSE OR EFFECT OF THE CHANGE IS CONFLICTING, AND THE ATTORNEY
GENERAL IS UNABLE TO RESOLVE THE CONFLICT WITHIN THE 60-DAY PERIOD, HE
SHALL, CONSISTENT WITH THE ABOVE-DESCRIBED BURDEN OF PROOF APPLICABLE
IN THE DISTRICT COURT, ENTER AN OBJECTION AND SO NOTIFY THE SUBMITTING
AUTHORITY."     /9/  THE VERY EFFECT OF ^ 5 WAS TO SHIFT THE BURDEN OF
PROOF WITH RESPECT TO RACIAL DISCRIMINATION IN VOTING.  RATHER THAN
REQUIRING AFFECTED PARTIES TO BRING SUIT TO CHALLENGE EVERY CHANGED
VOTING PRACTICE, STATES SUBJECT TO ^ 5 WERE REQUIRED TO OBTAIN PRIOR
CLEARANCE BEFORE PROPOSED CHANGES COULD BE PUT INTO EFFECT.  THE BURDEN
OF PROOF IS ON "THE AREAS SEEKING RELIEF."  SOUTH CAROLINA V.
KATZENBACH, 383 U.S. 301, 335. 

/10/  SEE GA. SENATE BILL 690, MAR. 9, 1972. 

/11/  THE LETTER SENT TO THE ATTORNEY GENERAL OF GEORGIA STATED THAT
A "PRELIMINARY EXAMINATION" OF THE MATERIALS SUBMITTED LED THE
DEPARTMENT OF JUSTICE TO CONCLUDE "THAT THE DATA SENT TO THE ATTORNEY
GENERAL ARE INSUFFICIENT TO EVALUATE PROPERLY THE CHANGES YOU HAVE
SUBMITTED.  IN ACCORDANCE WITH SECTIONS 51.10 (A) (6) AND 51.18 (A) OF
THE PROCEDURES FOR THE ADMINISTRATION OF SECTION 5 OF THE VOTING RIGHTS
ACT OF 1965 . . . WOULD YOU PLEASE ASSIST US BY PROVIDING THIS
DEPARTMENT THE FOLLOWING ADDITIONAL INFORMATION: . . . ." 

THE PROMULGATED REGULATIONS DEFINE IN 28 CFR ^ 51.10 THE CONTENTS OF
A SUBMISSION.  SECTION 51.10 (A) (6) STATES: 

"WITH RESPECT TO REDISTRICTING, ANNEXATION, AND OTHER COMPLEX
CHANGES, OTHER INFORMATION WHICH THE ATTORNEY GENERAL DETERMINES IS
REQUIRED TO ENABLE HIM TO EVALUATE THE PURPOSE OR EFFECT OF THE
CHANGE.  SUCH OTHER INFORMATION MAY INCLUDE ITEMS LISTED UNDER
PARAGRAPH (B) OF THIS SECTION.  WHEN SUCH OTHER INFORMATION IS
REQUIRED, THE ATTORNEY GENERAL SHALL NOTIFY THE SUBMITTING AUTHORITY IN
THE MANNER PROVIDED IN ^ 51.18 (A)." 

THE INFORMATION ENUMERATED TO THE EXTENT IT IS AVAILABLE AND RELEVANT
TO THE SUBMITTED CHANGES.  VIRTUALLY ALL OF THE INFORMATION REQUESTED
IN THIS CASE, SEE N.4, SUPRA, FALLS WITHIN THE ENUMERATED CATEGORIES OF
^ 51.10 (B). 

/12/  SEE N.4, SUPRA 

/13/  THE APPELLANTS CONTEND THAT TO ALLOW THE ATTORNEY GENERAL TO
PROMULGATE THIS REGULATION IS TO OPEN THE WAY TO FRIVOLOUS AND REPEATED
DELAYS BY THE JUSTICE DEPARTMENT OF LAWS OF VITAL CONCERN TO THE
COVERED STATES.  NO SUCH CONDUCT BY THE ATTORNEY GENERAL IS PRESENTED
HERE, AND BY UPHOLDING THE BASIC VALIDITY OF THE REGULATION WE MOST
ASSUREDLY DO NOT PREJUDGE ANY CASE IN WHICH SUCH UNWARRANTED
ADMINISTRATIVE CONDUCT MAY BE SHOWN.  FURTHERMORE, A SUBMISSION TO THE
ATTORNEY GENERAL IS NOT THE EXCLUSIVE MODE OF PRECLEARANCE UNDER ^ 5. 
IF A STATE FINDS THE ATTORNEY GENERAL'S DELAYS UNREASONABLE, OR IF HE
OBJECTS TO THE SUBMISSION, THE STATE "MAY STILL ENFORCE THE LEGISLATION
UPON SECURING A DECLARATORY JUDGMENT IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA."  ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S., AT
549. 

[[DOP 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT REACHED BY THE COURT BUT I DO SO UNDER THE
MANDATE OF ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544 (1969). 

[[HC542'(ORIGINAL DOCUMENT PAGE 542)'  I HAVE PREVIOUSLY EXPRESSED
MY RESERVATIONS AS TO THE CORRECTNESS OF THAT HOLDING.  SEE PERKINS V.
MATTHEWS, 400 U.S. 379, 397 (1971) (BLACKMUN, J., CONCURRING IN
JUDGMENT). 

[[DOP 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE POWELL AND MR. JUSTICE
REHNQUIST JOIN DISSENTING. 

STATE MAY NOT PUT INTO EFFECT ANY CHANGE IN VOTING QUALIFICATIONS OR
VOTING STANDARDS, PRACTICES, OR PROCEDURES UNTIL IT EITHER PROCURES A
DECLARATORY JUDGMENT FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA TO THE EFFECT THAT THE ALTERATION DOES NOT HAVE
ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR, OR SUBMITS THE
ALTERATION TO THE ATTORNEY GENERAL AND AN OBJECTION HAS NOT BEEN
INTERPOSED BY THAT OFFICIAL DURING THE ENSUING 60 DAYS.  IN THIS CASE,
THE ATTORNEY GENERAL INTERPOSED AN OBJECTION ON MARCH 24, 1972, TO THE
MARCH 9 REAPPORTIONMENT PLAN OF THE GEORGIA HOUSE OF REPRESENTATIVES
AND SHORTLY THEREAFTER SUED TO ENJOIN THE USE OF THAT PLAN ON THE
GROUND THAT THE STATE HAD OBTAINED NEITHER THE APPROVAL OF THE ATTORNEY
GENERAL NOR A DECLARATORY JUDGMENT.  THE DISTRICT COURT HELD ^ 5 WAS
APPLICABLE TO CHANGES IN STATE APPORTIONMENT PLANS AND THAT THE SECTION
PREVENTED THE MARCH 9 REAPPORTIONMENT FROM GOING INTO EFFECT. 

I AGREE THAT IN THE LIGHT OF OUR PRIOR CASES AND CONGRESSIONAL RE
ENACTMENT OF ^ 5, THAT SECTION MUST BE HELD TO REACH STATE
REAPPORTIONMENT STATUTES.  CONTRARY TO THE COURT, HOWEVER, IT IS MY
VIEW THAT THE ATTORNEY GENERAL DID NOT INTERPOSE AN OBJECTION
CONTEMPLATED BY ^ 5 AND THAT THERE WAS THEREFORE NO BARRIER TO THE
MARCH 9 REAPPORTIONMENT GOING INTO EFFECT. 

IT IS ARGUABLE FROM THE SPARSE LANGUAGE OF THE ACT, WHICH MERELY
SAYS THAT THE STATE'S MODIFICATION WILL GO INTO EFFECT UNLESS THE
ATTORNEY GENERAL ENTERS AN OBJECTION, THAT ANY OBJECTION WHATSOEVER
FILED BY THAT OFFICIAL WILL SUFFICE TO FORECLOSE EFFECTIVENESS OF THE
NEW LEGISLATION AND FORCE THE STATE INTO THE DISTRICT COURT WITH THE
BURDEN OF PROVING THAT ITS LAW IS NOT UNCONSTITUTIONAL. 

[[HC543'(ORIGINAL DOCUMENT PAGE 543)'  I CANNOT BELIEVE, HOWEVER,
THAT CONGRESS INTENDED TO VISIT UPON THE STATES THE CONSEQUENCES OF
SUCH UNCONTROLLED DISCRETION IN THE ATTORNEY GENERAL.  SURELY,
OBJECTIONS BY THE ATTORNEY GENERAL WOULD NOT BE VALID IF THAT OFFICER
CONSIDERED HIMSELF TOO BUSY TO GIVE ATTENTION TO ^ 5 SUBMISSIONS AND
SIMPLY DECIDED TO OBJECT TO ALL OF THEM, TO ONE OUT OF 10 OF THEM OR TO
THOSE FILED BY STATES WITH GOVERNORS OF A DIFFERENT POLITICAL
PERSUASION.  NEITHER, I THINK, DID CONGRESS ANTICIPATE THAT THE
ATTORNEY GENERAL COULD DISCHARGE HIS STATUTORY DUTY BY SIMPLY STATING
THAT HE HAD NOT BEEN PERSUADED THAT A PROPOSED CHANGE IN ELECTION
PROCEDURES WOULD NOT HAVE THE FORBIDDEN DISCRIMINATORY EFFECT.  IT IS
FAR MORE REALISTIC AND REASONABLE TO ASSUME THAT CONGRESS EXPECTED THE
ATTORNEY GENERAL TO GIVE HIS CAREFUL AND GOOD-FAITH CONSIDERATION TO ^
5 SUBMISSIONS AND, WITHIN 60 DAYS AFTER RECEIVING ALL INFORMATION HE
DEEMED NECESSARY, TO MAKE UP HIS MIND AS TO WHETHER THE PROPOSED CHANGE
DID OR DID NOT HAVE A DISCRIMINATORY PURPOSE OR EFFECT, AND IF IT DID,
TO OBJECT THERETO. 

ALTHOUGH THE CONSTITUTIONALITY OF ^ 5 HAS LONG SINCE BEEN UPHELD,
SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301 (1966), IT REMAINS A SERIOUS
MATTER THAT A SOVEREIGN STATE MUST SUBMIT ITS LEGISLATION TO FEDERAL
AUTHORITIES BEFORE IT MAY TAKE EFFECT.  IT IS EVEN MORE SERIOUS TO
INSIST THAT IT INITIATE LITIGATION AND CARRY THE BURDEN OF PROOF AS TO
CONSTITUTIONALITY SIMPLY BECAUSE THE STATE HAS EMPLOYED A PARTICULAR
TEST OR DEVICE AND A SUFFICIENTLY LOW PERCENTAGE OF ITS CITIZENS HAS
VOTED IN ITS ELECTIONS.  AND WHY SHOULD THE STATE BE FORCED TO SHOULDER
THAT BURDEN WHERE ITS PROPOSED CHANGE IS SO COLORLESS THAT THE
COUNTRY'S HIGHEST LEGAL OFFICER PROFESSES HIS INABILITY TO MAKE UP HIS
MIND AS TO ITS LEGALITY? 

[[HC544'(ORIGINAL DOCUMENT PAGE 544)'  IF HE IS TO OBJECT, MUST HE
NOT HIMSELF CONCLUDE THAT THE PROPOSED CHANGE WILL HAVE THE FORBIDDEN
PURPOSE OR EFFECT?  GIVEN SUCH A PROPER OBJECTION, THE MATTER WOULD
TAKE ON A FAMILIAR ADVERSARY CAST; AND THERE WOULD THEN APPEAR TO BE A
SOLID BASIS--AT LEAST THE PROBABLE CAUSE THAT A FEDERAL CHARGE USUALLY
IMPORTS--FOR INSISTING ON JUDICIAL CLEARANCE.  MOREOVER, THE ISSUES
BETWEEN THE STATE AND THE UNITED STATES, AS WELL AS THE LITIGATIVE
BURDEN THE STATE WOULD HAVE TO BEAR, COULD BE KNOWN AND EXAMINED AND
INTELLIGENT DECISION MADE AS TO WHETHER TO INSTITUTE SUIT IN THE
DISTRICT COURT.  AS IT IS, THE STATE MAY BE LEFT MORE OR LESS AT SEA;
FOR THE ATTORNEY GENERAL NEED MERELY ANNOUNCE THAT HE IS NOT AT ALL
CONVINCED THAT THE LAW SUBMITTED TO HIM IS NOT DISCRIMINATORY. 

MY IDEA AS TO THE OBLIGATION OF THE DEPARTMENT OF JUSTICE WITH
RESPECT TO A SUBMISSION UNDER ^ 5 IS SIMILAR TO WHAT CONGRESS ITSELF
HAS PROVIDED IN ^ 4, 42 U.S.C. ^ 1973B (A).  UNDER THAT PROVISION, A
STATE OTHERWISE COVERED BY THE ACT CAN TERMINATE COVERAGE AS TO IT BY
SECURING A DECLARATORY JUDGMENT THAT NO DISCRIMINATORY TEST OR DEVICE
HAS BEEN USED DURING THE PAST 10 YEARS.  IN THAT LITIGATION, THE
ENTRY OF SUCH A JUDGMENT IF "HE HAS NO REASON TO BELIEVE" THAT A
DISCRIMINATORY TEST OR DEVICE HAS BEEN USED DURING THE 10 YEARS
PRECEDING THE FILING OF THE ACTION.  THUS, IN EVEN THE FAR MORE
IMPORTANT CONTEXT OF DETERMINING WHETHER A STATE IS IN ANY RESPECT
COVERED BY THE ACT, THE ATTORNEY GENERAL, IF HE IS TO OBJECT TO A
DECREE FAVORABLE TO THE STATE, MUST HAVE REASON TO BELIEVE, AND SO
STATE, THAT TESTS OR DEVICES WITH THE PROHIBITED EFFECT HAVE BEEN
EMPLOYED IN THE PAST.  SURELY, WHERE THE ISSUE IS NOT TERMINATION VEL
NON, BUT THE PURPOSE AND EFFECT OF A SINGLE STATUTE, REGULATION, OR
OTHER MODIFICATION OF VOTING PROCEDURES, IT IS NOT UNTOWARD TO INSIST
THAT THE ATTORNEY GENERAL NOT OBJECT TO THE IMPLEMENTATION OF THE
CHANGE UNTIL AND UNLESS HE HAS REASON TO BELIEVE THAT THE AMENDMENT HAS
THE PROHIBITED PURPOSE OR EFFECT. 

[[HC545'(ORIGINAL DOCUMENT PAGE 545)'  HE SHOULD NOT BE ABLE TO
OBJECT BY SIMPLY SAYING THAT HE CANNOT MAKE UP HIS MIND OR THAT THE
EVIDENCE IS IN EQUIPOISE. 

[[DOP 

MR. JUSTICE POWELL, DISSENTING. 

FOR THE REASONS STATED IN HIS OPINION, I AGREE WITH MR. JUSTICE
WHITE THAT THE ATTORNEY GENERAL DID NOT COMPLY WITH ^ 5 OF THE VOTING
RIGHTS ACT, 42 U.S.C. ^ 1973C, AND THAT THEREFORE GEORGIA'S
REAPPORTIONMENT ACT SHOULD HAVE BEEN ALLOWED TO GO INTO EFFECT.  IT IS
INDEED A SERIOUS INTRUSION, INCOMPATIBLE WITH THE BASIC STRUCTURE OF
OUR SYSTEM, FOR FEDERAL AUTHORITIES TO COMPEL A STATE TO SUBMIT ITS
LEGISLATION FOR ADVANCE REVIEW.  /1/  AS A MINIMUM, ASSUMING THE
CONSTITUTIONALITY OF THE ACT, THE ATTORNEY GENERAL SHOULD BE REQUIRED
TO COMPLY WITH IT EXPLICITLY AND TO INVOKE ITS PROVISIONS ONLY WHEN HE
IS ABLE TO MAKE AN AFFIRMATIVE FINDING RATHER THAN AN AMBIVALENT ONE. 

[[DFN 

/1/  AS MR. JUSTICE BLACK STATED, THE POWER VESTED IN FEDERAL
OFFICIALS UNDER ^ 5 OF THE ACT TO VETO STATE LAWS IN ADVANCE OF THEIR
EFFECTIVENESS "DISTORTS OUR CONSTITUTIONAL STRUCTURE OF GOVERNMENT." 
SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301, 358 (1966) (CONCURRING AND
DISSENTING).  A SIMILAR APPRAISAL WAS MADE BY MR. JUSTICE HARLAN, WHO
CHARACTERIZED ^ 5, AS CONSTRUED BY THE COURT, AS "A REVOLUTIONARY
INNOVATION IN AMERICAN GOVERNMENT."  ALLEN V. STATE BOARD OF ELECTIONS,
393 U.S. 544, 585 (1969) (CONCURRING AND DISSENTING).  I HAVE NO DOUBT
AS TO THE POWER OF THE CONGRESS UNDER THE FIFTEENTH AMENDMENT TO ENACT
APPROPRIATE LEGISLATION TO ASSURE THAT THE RIGHTS OF CITIZENS TO VOTE
SHALL NOT BE DENIED, ABRIDGED, OR INFRINGED IN ANY WAY "ON ACCOUNT OF
RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE."  INDEED, IN MY VIEW
THERE IS MORE THAN A POWER TO ENACT SUCH LEGISLATION, THERE IS A DUTY. 
MY DISAGREEMENT IS WITH THE UNPRECEDENTED REQUIREMENT OF ADVANCE REVIEW
OF STATE OR LOCAL LEGISLATIVE ACTS BY FEDERAL AUTHORITIES, RENDERED THE
MORE NOXIOUS BY ITS SELECTIVE APPLICATION TO ONLY A FEW STATES. 

HAROLD N. HILL, JR., EXECUTIVE ASSISTANT ATTORNEY GENERAL OF
GEORGIA, ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE
ARTHUR K. BOLTON, ATTORNEY GENERAL, AND ROBERT J. CASTELLANI AND
DOROTHY Y. KIRKLEY, ASSISTANT ATTORNEY GENERAL. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL NORMAN, JAMES P. TURNER, WILLIAM BRADFORD
REYNOLDS, AND JOHN C. HOYLE. 

STEPHEN J. POLLAK, RICHARD M. SHARP, AND ARMAND DERFNER FILED A
BRIEF FOR THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :














UNITED STATES V. CARTWRIGHT, EXECUTOR, 411 U.S. 546 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT 

     NO. 71 - 1665.  ARGUED JANUARY 16, 1973--DECIDED MAY 7, 1973;
457 F.2D 567 AFFIRMED. 


    SHARES IN MUTUAL FUNDS CAN BE "SOLD" BY THE SHAREHOLDER ONLY

  BACK TO THE FUND AND ONLY AT A SET REDEMPTION PRICE.  TREAS. REG.

  ^ 20.2031 - 8 (B), REQUIRING THAT SUCH SHARES BE VALUED FOR

  FEDERAL ESTATE TAX PURPOSES AT THE CURRENT PUBLIC OFFERING

  ("ASKED") PRICE, WHICH IS DETERMINED BY ADDING A LOAD OR SALES

  CHARGE TO THE NET ASSET VALUE, IS CLEARLY INCONSISTENT WITH THE

  INVESTMENT COMPANY ACT OF 1940, AND IS THEREFORE INVALID.  PP.

  550 - 557. 

      WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  DOUGLAS, BRENNAN, MARSHALL, BLACKMUN, AND POWELL, JJ., JOINED. 

  STEWART, J., FILED A DISSENTING OPINION, IN WHICH BURGER, C.J.,

  AND REHNQUIST, J., JOINED, POST, P. 557. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE INTERNAL REVENUE CODE OF 1954 REQUIRES THAT, FOR ESTATE TAX
PURPOSES, THE "VALUE" OF ALL PROPERTY HELD BY A DECEDENT AT THE TIME OF
DEATH BE INCLUDED IN THE GROSS ESTATE.  26 U.S.C. ^ 2031.  BY
REGULATION, THE SECRETARY OF THE TREASURY HAS DETERMINED THAT SHARES IN
OPEN-END INVESTMENT COMPANIES, OR MUTUAL FUNDS, ARE TO BE VALUED AT
THEIR PUBLIC OFFERING PRICE OR "ASKED"  PRICE AT THE DATE OF DEATH. 

[[HC547'(ORIGINAL DOCUMENT PAGE 547)'  TREAS. REG. ON ESTATE TAX ^
20.2031 - 8 (B) (1963).  THE QUESTION THIS CASE PRESENTS IS WHETHER
THAT DETERMINATION IS REASONABLE IN THE CONTEXT OF THE MARKET FOR
MUTUAL FUND SHARES. 

AT THE TIME OF HER DEATH IN 1964, ETHEL B. BENNETT OWNED
APPROXIMATELY 8,700 SHARES OF THREE MUTUAL FUNDS THAT ARE REGULATED BY
THE INVESTMENT COMPANY ACT OF 1940, 54 STAT. 789, AS AMENDED, 15 U.S.C.
^ 80A - 1 ET SEQ. /1/  THE 1940 ACT SEEKS GENERALLY TO REGULATE
PUBLICLY HELD COMPANIES THAT ARE ENGAGED IN INVESTING IN SECURITIES. 
OPEN-END INVESTMENT COMPANIES, OR MUTUAL FUNDS, "DOMINATE" THIS
INDUSTRY.  1966 SEC REPORT 43.  UNQUESTIONABLY, THE UNIQUE
CHARACTERISTIC OF MUTUAL FUNDS IS THAT THEY ARE PERMITTED, UNDER THE
ACT, TO MARKET THEIR SHARES CONTINUOUSLY TO THE PUBLIC, BUT ARE
REQUIRED TO BE PREPARED TO REDEEM OUTSTANDING SHARES AT ANY TIME.  ^
80A - 22 (E).  THE REDEMPTION PRICE ("BID" PRICE) THAT A SHAREHOLDER
MAY RECEIVE IS SET BY THE ACT AT APPROXIMATELY THE FRACTIONAL VALUE PER
SHARE OF THE FUND'S NET ASSETS AT THE TIME OF REDEMPTION.  ^ 80A - 2
(A) (32).  IN CONTRAST, THE "ASKED"  PRICE, OR THE PRICE AT WHICH THE
FUND INITIALLY OFFERS ITS SHARES TO THE PUBLIC, INCLUDES NOT ONLY THE
NET ASSET VALUE PER SHARE AT THE TIME OF SALE, BUT ALSO A FIXED SALES
CHARGE OR "SALES LOAD"  ASSESSED BY THE FUND'S PRINCIPAL UNDERWRITER
WHO ACTS AS AN AGENT IN MARKETING THE FUND'S SHARES.  ^ 80A - 2 (A)
(35).  /2/ 

[[HC548'(ORIGINAL DOCUMENT PAGE 548)'  SALES LOADS VARY WITHIN FIXED
LIMITS FROM MUTUAL FUNDS TO MUTUAL FUND, BUT ALL ARE PAID TO THE FUND'S
UNDERWRITERS; THE CHARGES DO NOT BECOME PART OF THE ASSETS OF THE
FUND.  /3/  THE SALES LOADS OF THE FUNDS HELD BY THE DECEDENT RANGED
FROM SEVEN AND EIGHT PERCENT TO ONE PERCENT OF THE FRACTIONAL NET ASSET
VALUE OF THE FUNDS' SHARES. 

[[HC549'(ORIGINAL DOCUMENT PAGE 549)' 

PRIVATE TRADING IN MUTUAL FUND SHARES IS VIRTUALLY NON-EXISTENT. 
/4/  THUS, AT ANY GIVEN TIME, UNDER THE STATUTORY SCHEME CREATED BY THE
INVESTMENT COMPANY ACT, SHARES OF ANY OPEN-END MUTUAL FUND WITH A SALES
LOAD ARE BEING SOLD AT TWO DISTINCT PRICES.  INITIAL PURCHASES BY THE
PUBLIC ARE MADE FROM THE FUND, AT THE "ASKED" PRICE, WHICH INCLUDES THE
LOAD.  BUT SHAREHOLDERS "SELL" THEIR SHARES BACK TO THE FUND AT THE
STATUTORILY DEFINED REDEMPTION OR BID PRICE. 

RESPONDENT IS THE EXECUTOR OF THE DECEDENT'S ESTATE.  ON THE FEDERAL
ESTATE TAX RETURN, HE REPORTED THE VALUE OF THE MUTUAL FUND SHARES HELD
BY THE DECEDENT AT THEIR REDEMPTION PRICE, WHICH AMOUNTED TO ABOUT
$124,400.  THE COMMISSIONER ASSESSED A DEFICIENCY BASED UPON HIS
VALUATION OF THE SHARES AT THEIR PUBLIC OFFERING OR ASKED PRICE,
PURSUANT TO TREAS. REG. ^ 20.2031 - 8 (B).  /5/  VALUED ON THAT BASIS,
THE SHARES WERE WORTH APPROXIMATELY $133,300. 

[[HC550'(ORIGINAL DOCUMENT PAGE 550)'  RESPONDENT PAID THE
DEFICIENCY OF ABOUT $3,100, INCLUDING INTEREST, FILED A TIMELY CLAIM
FOR A REFUND, AND, WHEN THAT CLAIM WAS DENIED, COMMENCED A REFUND
ACTION IN FEDERAL DISTRICT COURT ON THE GROUND THAT THE VALUATION BASED
ON ^ 20.2031 - 8 (B) WAS UNREASONABLE.  THE DISTRICT COURT AGREED WITH
RESPONDENT AND HELD THE REGULATION INVALID.  323 F.SUPP.  769.  THE
COURT OF APPEALS AFFIRMED.  457 F.2D 567.  WE GRANTED THE GOVERNMENT'S
PETITION FOR CERTIORARI, 409 U.S. 840, BECAUSE OF THE CONFLICT AMONG
THE CIRCUITS.  /6/ 

WE RECOGNIZE THAT THIS COURT IS NOT IN THE BUSINESS OF ADMINISTERING
THE TAX LAWS OF THE NATION.  CONGRESS HAS DELEGATED THAT TASK TO THE
SECRETARY OF THE TREASURY, 26 U.S.C. ^ 7805 (A), AND REGULATIONS
PROMULGATED UNDER HIS AUTHORITY, IF FOUND TO "IMPLEMENT THE
CONGRESSIONAL MANDATE IN SOME REASONABLE MANNER,"  MUST BE UPHELD. 
UNITED STATES V. CORRELL, 389 U.S. 299, 307 (1967).  SEE BINGLER V.
JOHNSON, 394 U.S. 741, 749 - 751 (1969); COMMISSIONER V. SOUTH TEXAS
LUMBER CO., 333 U.S. 496, 501 (1948).  BUT THAT PRINCIPLE IS TO SET THE
FRAMEWORK FOR JUDICIAL ANALYSIS; IT DOES NOT DISPLACE IT.  WE FIND THAT
THE CONTESTED REGULATION IS UNREALISTIC AND UNREASONABLE AND THEREFORE
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

IN IMPLEMENTING 26 U.S.C. ^ 2031, THE GENERAL PRINCIPLE OF THE
TREASURY REGULATIONS IS THAT THE VALUE OF PROPERTY IS TO BE DETERMINED
BY ITS FAIR MARKET VALUE AT THE TIME OF THE DECEDENT'S DEATH. 

[[HC551'(ORIGINAL DOCUMENT PAGE 551)'  "THE FAIR MARKET VALUE IS THE
PRICE AT WHICH THE PROPERTY WOULD CHANGE HANDS BETWEEN A WILLING BUYER
AND A WILLING SELLER, NEITHER BEING UNDER ANY COMPULSION TO BUY OR TO
SELL AND BOTH HAVING REASONABLE KNOWLEDGE OF RELEVANT FACTS."  TREAS.
REG. ^ 20.2031 - 1 (B).  THE WILLING BUYER-WILLING SELLER TEST OF FAIR
MARKET VALUE IS NEARLY AS OLD AS THE FEDERAL INCOME, ESTATE, AND GIFTS
TAXES THEMSELVES, AND IS NOT CHALLENGED HERE.  /7/  UNDER THIS TEST, IT
IS CLEAR THAT IF THE DECEDENT HAD OWNED ORDINARY CORPORATE STOCK LISTED
ON AN EXCHANGE, ITS "VALUE" FOR ESTATE TAX PURPOSES WOULD BE THE PRICE
THE ESTATE COULD HAVE OBTAINED IF IT HAD SOLD THE STOCK ON THE
VALUATION DATE, THAT PRICE BEING, UNDER TREAS. REG. ^ 20.2031 - 2 (B),
THE MEAN BETWEEN THE HIGHEST AND LOWEST QUOTED SELLING PRICES ON THAT
DAY.  RESPONDENT URGES THAT SIMILAR TREATMENT BE GIVEN MUTUAL FUND
SHARES AND THAT, ACCORDINGLY, THEIR VALUE BE MEASURED BY THE REDEMPTION
PRICE AT THE DATE OF DEATH, THE ONLY PRICE THAT THE ESTATE COULD HOPE
TO OBTAIN IF THE SHARES HAD BEEN SOLD. 

RESPONDENT'S ARGUMENT HAS THE CLEAR RING OF COMMON SENSE TO IT, BUT
THE UNITED STATES MAINTAINS THAT THE REDEMPTION PRICE DOES NOT REFLECT
THE PRICE THAT A WILLING BUYER WOULD PAY, INASMUCH AS THE MUTUAL FUND
IS UNDER A STATUTORY OBLIGATION TO REDEEM OUTSTANDING SHARES WHENEVER
THEY ARE OFFERED.  ACCORDING TO THE GOVERNMENT, THE ONLY MARKET FOR
MUTUAL FUND SHARES THAT HAS BOTH WILLING BUYERS AND WILLING SELLERS IS
THE PUBLIC OFFERING MARKET.  THEREFORE, THE PRICE IN THAT MARKET, THE
ASKED PRICE, IS AN APPROPRIATE BASIS FOR VALUATION. 

[[HC552'(ORIGINAL DOCUMENT PAGE 552)'  THE CENTRAL DIFFICULTY WITH
THIS ARGUMENT IS THAT IT UNREALISTICALLY BIFURCATES THE STATUTORY
SCHEME FOR THE TRADING IN MUTUAL FUND SHARES.  TO BE SURE, THE FUND IS
UNDER AN OBLIGATION TO REDEEM ITS SHARES AT THE STATED PRICE.  15
U.S.C. ^ 80A - 22 (E).  BUT, AT THE TIME OF THE ORIGINAL PURCHASES,
BOTH THE FUND AND THE PURCHASERS ARE AWARE OF THAT DUTY AND BOTH
WILLINGLY ENTER INTO THE SALE TRANSACTIONS NONETHELESS.  AS JUDGE
WINNER CORRECTLY OBSERVED IN HICKS V. UNITED STATES, 335 F.SUPP.  474,
481 (COLO. 1971): 

"VIEWING THE CONTRACT IN THIS LIGHT MEETS EVERY TEST OF THE 'WILLING
BUYER-WILLING SELLER'  DEFINITION USUALLY APPLIED IN THE DETERMINATION
OF MARKET VALUE.  THE 'WILLING BUYER' IS THE FULLY INFORMED PERSON WHO
AGREES TO BUY THE SHARES, AGREEING AT THAT TIME TO SELL THEM TO THE
FUND--THE ONLY AVAILABLE REPURCHASER--AT THE REDEMPTION PRICE.  THE
'WILLING SELLER' IS THE FUND WHICH SELLS THE SHARES AT MARKET VALUE
PLUS A LOAD CHARGE, AND WHICH AGREES TO BUY THE SHARES BACK AT MARKET
LESS THE LOAD CHARGE.  THAT IS THE MARKET, AND IT IS THE ONLY MARKET. 
IT IS A MARKET MADE UP OF INFORMED BUYERS AND AN INFORMED SELLER, ALL
DEALING AT ARM'S LENGTH." 

IN THE CONTEXT OF THE INVESTMENT COMPANY ACT, THE REDEMPTION PRICE
MAY THUS BE PROPERLY VIEWED ONLY AS THE FINAL STEP IN A VOLUNTARY
TRANSACTION BETWEEN A WILLING BUYER AND WILLING SELLER.  AS A MATTER OF
STATUTORY LAW, HOLDERS OF MUTUAL FUND SHARES CANNOT OBTAIN THE "ASKED"
PRICE FROM THE FUND.  THAT PRICE IS NEVER PAID BY THE FUND; IT IS USED
BY THE FUND WHEN SELLING ITS SHARES TO THE PUBLIC--AND EVEN THEN THE
FUND RECEIVES MERELY THE NET ASSET VALUE PER SHARE FROM THE SALE, WITH
THE SALES LOAD BEING PAID DIRECTLY TO THE UNDERWRITER.  IN SHORT, THE
ONLY PRICE THAT A SHAREHOLDER MAY REALIZE AND THAT THE FUND--THE ONLY
BUYER--WILL PAY IS THE REDEMPTION PRICE. 

[[HC553'(ORIGINAL DOCUMENT PAGE 553)'  IN THE TEETH OF THIS FACT,
REGULATION ^ 20.2031 - 8 (B) PURPORTS TO ASSIGN A VALUE TO MUTUAL FUND
SHARES THAT THE ESTATE COULD NOT HOPE TO OBTAIN AND THAT THE FUND COULD
NOT OFFER. 

IN SUPPORT OF THE REGULATION, THE GOVERNMENT STRESSES THAT MANY
TYPES OF PROPERTY ARE TAXED AT VALUES ABOVE THOSE WHICH COULD BE
REALIZED DURING AN ACTUAL SALE.  FOR EXAMPLE, ORDINARY CORPORATE STOCK
IS VALUED AT ITS FAIR MARKET PRICE WITHOUT TAKING INTO ACCOUNT THE
BROKERAGE COMMISSION THAT A SELLER MUST GENERALLY PAY IN ORDER TO SELL
THE STOCK.  RESPONDENT DOES NOT CONTEND THAT THAT APPROACH IS
INAPPROPRIATE OR THAT, FOR EXAMPLE, THE VALUE OF ORDINARY STOCK IN AN
ESTATE SHOULD BE THE MARKET PRICE AT THE TIME LESS ANTICIPATED
BROKERAGE FEES.  BUT ^ 20.2031 - 8 (B) OPERATES IN AN ENTIRELY
DIFFERENT FASHION.  THE REGULATION INCLUDES AS AN ELEMENT OF VALUE THE
COMMISSION COST INCURRED IN THE HYPOTHETICAL PURCHASE OF THE MUTUAL
FUND SHARES ALREADY HELD IN THE DECEDENT'S ESTATE.  IF THAT PRINCIPLE
WERE CARRIED OVER TO THE ORDINARY STOCK SITUATION, THEN A SHARE TRADED
AT $100 ON THE DATE OF DEATH WOULD BE VALUED, NOT AT $100 AS IT NOW IS,
BUT AT, SAY $102, REPRESENTING THE "VALUE" PLUS THE FEE THAT A PERSON
BUYING THE STOCK ON THAT DAY WOULD HAVE TO PAY.  IT HARDLY NEED BE SAID
THAT SUCH A VALUATION METHOD IS AT LEAST INCONSISTENT WITH LONG
ESTABLISHED TREASURY PRACTICE AND WOULD APPEAR AT ODDS WITH THE BASIC
NOTIONS OF VALUATION EMBODIED IN THE INTERNAL REVENUE CODE.  /8/  SEE
ESTATE OF WELLS V. COMMISSIONER, 50 T.C. 871, 880 (1968) (TANNENWALD,
J., DISSENTING). 

EVEN IF IT WERE ASSUMED THAT THE PUBLIC OFFERING PRICE WERE SOMEHOW
RELEVANT TO THE VALUE OF MUTUAL FUND SHARES PRIVATELY HELD, THERE WOULD
STILL BE THE DIFFICULTY THAT SHARES SO HELD ARE, IN IMPORTANT RESPECTS,
SIMILAR TO ORDINARY CORPORATE STOCK HELD SUBJECT TO A RESTRICTIVE
AGREEMENT (SUCH AS A FIRST-REFUSAL RIGHT AT A SPECIFIED PRICE). 

[[HC554'(ORIGINAL DOCUMENT PAGE 554)'  WITH RESPECT TO THE VALUE OF
SUCH STOCK, THE TREASURY REGULATIONS HAVE PROVIDED THAT THE PRICE THAT
MAY BE OBTAINED IN THE MARKETPLACE DOES NOT CONTROL.  RATHER, SO LONG
AS THE RESTRICTION IS A BONA FIDE ONE, THE VALUE OF THE SHARES IN THE
HANDS OF THE RESTRICTED STOCKHOLDER IS DETERMINED IN ACCORDANCE WITH
THE TERMS OF THE RESTRICTED STOCKHOLDER IS DETERMINED IN ACCORDANCE
WITH THE TERMS OF THE RESTRICTION.  TREAS. REG. ^ 20.2031 - 2 (H). 
OUTSTANDING MUTUAL FUND SHARES ARE LIKEWISE HELD SUBJECT TO A
RESTRICTION, AS THE COURT OF APPEALS NOTED.  457 F.2D, AT 571.  THOSE
SHARES MAY NOT BE "SOLD" AT THE PUBLIC OFFERING PRICE.  BY STATUTE,
THEY MAY BE "SOLD" BACK TO THE MUTUAL FUND ONLY AT THE REDEMPTION
PRICE.  WE SEE NO VALID JUSTIFICATION FOR DISREGARDING THIS REALITY
CONNECTED WITH THE OWNERSHIP OF MUTUAL FUND SHARES. 

THE GOVERNMENT NEVERTHELESS ARGUES THAT TREAS. REG. ^ 20.2031 - 8
(B) REASONABLY VALUES THE "BUNDLE OF RIGHTS" THAT IS TRANSFERRED WITH
THE OWNERSHIP OF THE MUTUAL FUNDS SHARES.  /9/  FOR THIS ARGUMENT,
HEAVY RELIANCE IS PLACED ON THIS COURT'S DECISIONS IN GUGGENHEIM V.
RASQUIN, 312 U.S. 254 (1941); POWERS V. COMMISSIONER, 312 U.S. 259
(1941); UNITED STATES V. RYERSON, 312 U.S. 260 (1941), WHICH HELD THAT
THE CASH-SURRENDER VALUE OF SINGLE-PREMIUM LIFE INSURANCE POLICY DID
NOT NECESSARILY REPRESENT ITS ONLY TAXABLE VALUE FOR FEDERAL GIFT TAX
PURPOSES.  /10/ 

[[HC555'(ORIGINAL DOCUMENT PAGE 555)'  IN GUGGENHEIM, THE LEAD CASE,
THE TAXPAYER PURCHASED SINGLE-PREMIUM LIFE INSURANCE POLICIES WITH AN
AGGREGATE FACE VALUE OF ONE MILLION DOLLARS FOR APPROXIMATELY $852,000
AND, SHORTLY THEREAFTER, GAVE THE POLICIES TO HER CHILDREN.  ON THE
GIFT TAX RETURN, THE POLICIES WERE LISTED AT THEIR CASH-SURRENDER VALUE
OF ABOUT $717,000--ADMITTEDLY THE ONLY AMOUNT THE DONOR OR THE DONEES
COULD RECEIVE, IF THE POLICIES WERE SURRENDERED.  BUT THE COMMISSIONER
VALUED THE GIFT AT THE COST OF THE POLICIES, AND THIS COURT UPHELD THAT
VALUATION:  "THE OWNER OF A FULLY PAID LIFE INSURANCE POLICY HAS MORE
THAN THE MERE RIGHT TO SURRENDER IT; HE HAS THE RIGHT TO RETAIN IT FOR
ITS INVESTMENT VIRTUES AND TO RECEIVE THE FACE AMOUNT OF THE POLICY
UPON THE INSURED'S DEATH.  THAT THESE LATTER RIGHTS ARE DEEMED BY
PURCHASERS OF INSURANCE TO HAVE SUBSTANTIAL VALUE IS CLEAR FROM THE
DIFFERENCE BETWEEN THE COST OF A SINGLE-PREMIUM POLICY AND ITS
IMMEDIATE OR EARLY CASH-SURRENDER VALUE.  . . ."  312 U.S., AT 257. 
BECAUSE THE "ENTIRE BUNDLE OF RIGHTS IN A SINGLE-PREMIUM POLICY" IS SO
DIFFICULT TO GIVE A REALISTIC VALUE TO, THE COURT DEFERRED TO THE
COMMISSIONER'S DETERMINATION AND PERMITTED VALUATION TO BE BASED ON
COST:  "COST IS COGENT EVIDENCE OF VALUE."  312 U.S., AT 258.  BUT AS
THE DISTRICT COURT OBSERVED, 323 F.SUPP., AT 773, SHARES IN MUTUAL
FUNDS ARE QUITE UNLIKE INSURANCE POLICIES, PARTICULARLY IN LIGHT OF THE
POLICYOWNER'S RIGHT TO RECEIVE THE FULL FACE VALUE OF THE POLICY UPON
THE INSURED'S DEATH.  MOREOVER, MUTUAL FUND SHARES PRESENT NO ANALOGOUS
DIFFICULTIES IN VALUTATION.     [[HC556'(ORIGINAL DOCUMENT PAGE 556)'
ON ANY GIVEN DAY, THEIR COMMERCIAL VALUE MAY BE DETERMINED BY TURNING
TO THE FINANCIAL PAGES OF A NEWSPAPER.  OBVIOUSLY, WITH RESPECT TO
MUTUAL FUNDS, THERE ARE "INVESTMENT VIRTUES" AND THE PROSPECTS OF
CAPITAL GAINS OR DIVIDENDS.  BUT THAT IS TRUE OF ANY CORPORATE
SECURITY.  NONETHELESS, SHAREHOLDERS IN MUTUAL FUNDS ARE SINGLED OUT BY
THE REGULATION AND THEIR HOLDINGS VALUED AT AN UNREALISTIC REPLACEMENT
COST--WHICH INCLUDES "BROKERS' COMMISSIONS"--WHILE OTHER SHAREHOLDINGS
ARE VALUED WITHOUT REGARD TO SUCH COMMISSIONS.     THE UNREALISTIC
NATURE OF THIS DIFFERENCE IN TREATMENT MAY BE DEMONSTRATED BY COMPARING
THE TREATMENT OF SHARES IN LOAD FUNDS, SUCH AS THE DECEDENT'S, WITH
SHARES IN NO-LOAD FUNDS.  OBVIOUSLY, EVEN IF IT COULD BE ARGUED THAT
THERE ARE RELEVANT DIFFERENCES BETWEEN MUTUAL FUND SHARES GENERALLY AND
CORPORATE STOCK, THERE ARE NO DIFFERENCES IN TERMS OF "INVESTMENT
VIRTUES" OR RELATED INTERESTS BETWEEN NO-LOAD AND LOAD FUND SHARES. 
INDEED, AS THE TERMS IMPLY, THE ONLY REAL DISTINCTION BETWEEN THE TWO
IS THAT ONE IMPOSES AN INITIAL SALES CHARGE AND THE OTHER DOES NOT. 
/11/  NONETHELESS, UNDER THE REGULATION, A SHARE IN A NO-LOAD FUND IS
VALUED AT ITS NET ASSET VALUE WHILE A SHARE IN A LOAD FUND IS VALUED AT
NET ASSET VALUE PLUS SALES CHARGE.  TO FURTHER ILLUSTRATE, CONSIDER A
DECEDENT WHO HAD PURCHASE ONE SHARE IN EACH OF TWO NO-LOAD MUTUAL
FUNDS, AT $100 PER SHARE.  THE DECEDENT DIED BEFORE EITHER APPRECIATED,
BUT AFTER ONE OF THE FUNDS HAD CHANGED TO A LOAD FUND.  ALTHOUGH BOTH
SHARES ARE STILL WORTH $100, AND COULD BE REDEEMED FOR ONLY THAT
AMOUNT, THE REGULATION WOULD REQUIRE THAT ONE BE VALUED AT $100 AND THE
OTHER AT $100 PLUS THE NEW LOAD CHARGE.  A REGULATION THAT RESULTS IN
SUCH DIFFERING TREATMENT OF IDENTICAL PROPERTY SHOULD BE SUPPORTED BY
SOMETHING MORE THAN A TRANSPARENT ANALOGY TO LIFE INSURANCE. 

[[HC557'(ORIGINAL DOCUMENT PAGE 557)' 

WE RECOGNIZE THAT NORMALLY "TREASURY REGULATIONS MUST BE SUSTAINED
UNLESS UNREASONABLE AND PLAINLY INCONSISTENT WITH THE REVENUE
STATUTES."  COMMISSIONER V. SOUTH TEXAS LUMBER CO., 333 U.S., AT 501. 
BUT EVEN IF THE REGULATION CONTESTED HERE IS NOT, ON ITS FACE,
TECHNICALLY INCONSISTENT WITH ^ 2031 OF THE INTERNAL REVENUE CODE, IT
IS MANIFESTLY INCONSISTENT WITH THE MOST ELEMENTARY PROVISIONS OF THE
INVESTMENT COMPANY ACT OF 1940 AND OPERATES WITHOUT REGARD FOR THE
MARKET IN MUTUAL FUND SHARES THAT THE ACT CREATED AND REGULATES.  CF.
L.E. SHUNK LATEX PRODUCTS, INC. V. COMMISSIONER, 18 T.C. 940 (1952). 
CONGRESS SURELY COULD NOT HAVE INTENDED ^ 2031 TO BE INTERPRETED IN
SUCH A MANNER.  THE REGULATION ALSO IMPOSES AN UNREASONABLE AND
UNREALISTIC MEASURE OF VALUE.  WE AGREE WITH JUDGE TANNENWALD, WHO
STATED AT THE VERY OUTSET OF THE DISPUTE OVER REGULATION ^ 20.2031 - 8
(B), THAT "IT DOES NOT FOLLOW THAT, BECAUSE (THE COMMISSIONER) HAS A
CHOICE OF ALTERNATIVES, HIS CHOICE SHOULD BE SUSTAINED WHERE THE
ALTERNATIVE CHOSEN IS UNREALISTIC.  IN SUCH A SITUATION THE REGULATIONS
EMBODYING THAT CHOICE SHOULD BE HELD TO BE UNREASONABLE."  ESTATE OF
WELLS V. COMMISSIONER, 50 T.C., AT 878 (DISSENTING OPINION). 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  THE DECEDENT OWNED 2,568.422 SHARES OF INVESTORS MUTUAL, INC.,
IN HER OWN NAME, AND 2,067.531 SHARES AS TRUSTEE FOR HER DAUGHTER.  THE
DECEDENT ALSO OWNED 2,269.376 SHARES OF INVESTORS STOCK FUND, INC., AND
1,869.159 SHARES OF INVESTORS SELECTIVE FUND, INC. 

FOR THOROUGH DISCUSSIONS OF THE OPERATIONS OF OPEN-END INVESTMENT
COMPANIES, SEE SEC REPORT ON PUBLIC POLICY IMPLICATIONS OF INVESTMENT
COMPANY GROWTH, H.R. REP. NO. 2337, 89TH CONG., 2D SESS. (1966)
(HEREINAFTER 1966 SEC REPORT); SEC REPORT OF SPECIAL STUDY OF
SECURITIES MARKETS, C. XI, OPEN-END INVESTMENT COMPANIES (MUTUAL
FUNDS), H.R. DOC. NO. 95, PT.4, 88TH CONG., 1ST SESS. (1963)
(HEREINAFTER 1963 SPECIAL STUDY). 

/2/  A NUMBER OF MUTUAL FUNDS ARE SO-CALLED "NO-LOAD FUNDS"; IN SUCH
CASES THE BID AND ASKED PRICES ARE THE SAME.  SEE 1966 SEC REPORT 58 -
59.  THE UNDERWRITER FOR ALL THREE FUNDS INVOLVED IN THE CASE IS
INVESTORS DIVERSIFIED SERVICES, INC. (IDS), WHICH IS NOT ITSELF AN OPEN
END INVESTMENT COMPANY.  IDS ALSO SERVES AS THE INVESTMENT MANAGER OF
THE FUNDS, FOR WHICH IT RECEIVES SEPARATE MANAGEMENT FEES.  SEE 15
U.S.C. ^ 80A - 15. 

/3/  THE 1963 SPECIAL STUDY 96 - 97 EXPLAINED THE TRADING IN MUTUAL
FUND SHARES AS FOLLOWS: 

"MUTUAL FUND SHARES ARE NOT TRADED ON EXCHANGES OR GENERALLY IN THE
OVER-THE-COUNTER MARKET, AS ARE OTHER SECURITIES, BUT ARE SOLD BY THE
FUND THROUGH A PRINCIPAL UNDERWRITER, AND REDEEMED BY THE FUND, AT
PRICES WHICH ARE RELATED TO 'NET ASSET VALUE.'  THE NET ASSET VALUE PER
SHARE IS NORMALLY COMPUTED TWICE DAILY BY TAKING THE MARKET VALUE AT
THE TIME OF ALL PORTFOLIO SECURITIES, ADDING THE VALUE OF OTHER ASSETS
AND SUBTRACTING LIABILITIES, AND DIVIDING THE RESULT BY THE NUMBER OF
SHARES OUTSTANDING.  SHARES OF MOST FUNDS ARE SOLD FOR A PRICE EQUAL TO
THEIR NET ASSET VALUE PLUS A SALES CHARGE OR COMMISSION, COMMONLY
REFERRED TO AS THE 'SALES LOAD,' AND USUALLY RANGING FROM 7.5 TO 8.5
PERCENT OF THE AMOUNT PAID, OR 8.1 TO 9.3 PERCENT OF THE AMOUNT
INVESTED.  A FEW FUNDS, HOWEVER, KNOWN AS 'NO-LOAD' FUNDS, OFFER THEIR
SHARES FOR SALE AT NET ASSET VALUE WITHOUT A SALES CHARGE.  SHARES OF
MOST FUNDS ARE REDEEMED OR REPURCHASED BY THE FUNDS AT THEIR NET ASSET
VALUE, ALTHOUGH A FEW FUNDS CHARGE A SMALL REDEMPTION FEE.  THE RESULT
OF THIS PRICING SYSTEM, IT IS APPARENT, IS THAT THE ENTIRE COST OF
SELLING FUND SHARES IS GENERALLY BORNE EXCLUSIVELY BY THE PURCHASER OF
NEW SHARES AND NOT BY THE FUND ITSELF.  IN THIS RESPECT THE OFFERING OF
NEW SHARES BY A CLOSED-END INVESTMENT COMPANY OR AN ADDITIONAL OFFERING
'AT THE MARKET' OF SHARES OF AN EXCHANGE-LISTED SECURITY, WHERE AT
LEAST A PORTION OF THE SELLING COST IS BORNE BY THE COMPANY SELLING THE
SHARES."  (FOOTNOTE OMITTED.) 

/4/  SEE ESTATE OF WELLS V. COMMISSIONER, 50 T.C. 871, 873 (1968),
AFF'D SUB NOM. RUEHLMANN V. COMMISSIONER, 418 F.2D 1302 (CA6 1969),
CERT. DENIED, 398 U.S. 950 (1970); 1966 SEC REPORT 42; AND 1963 SPECIAL
STUDY 96. 

/5/  THE REGULATION READS, IN PART, AS FOLLOWS: 

"(B) VALUATION OF SHARES IN AN OPEN-END INVESTMENT COMPANY.  (1) THE
FAIR MARKET VALUE OF A SHARE IN AN OPEN-END INVESTMENT COMPANY
(COMMONLY KNOWN AS A 'MUTUAL FUND') IS THE PUBLIC OFFERING PRICE OF A
SHARE, ADJUSTED FOR ANY REDUCTION IN PRICE AVAILABLE TO THE PUBLIC IN
ACQUIRING THE NUMBER OF SHARES BEING VALUED.  IN THE ABSENCE OF AN
AFFIRMATIVE SHOWING OF THE PUBLIC OFFERING PRICE IN EFFECT AT THE TIME
OF DEATH, THE LAST PUBLIC OFFERING PRICE QUOTED BY THE COMPANY FOR THE
DATE OF DEATH SHALL BE PRESUMED TO BE THE APPLICABLE PUBLIC OFFERING
PRICE.  . . . 

"(2) THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY WITH RESPECT TO
ESTATES OF DECEDENTS DYING AFTER OCTOBER 10, 1963." 

THIS REGULATION WAS PROMULGATED IN 1963, T.D. 6680, 28 FED. REG.
10872, AFTER SOME YEARS OF CONFUSION WITHIN THE TREASURY DEPARTMENT AND
BETWEEN THAT DEPARTMENT AND THE DEPARTMENT OF JUSTICE.  SEE THE
DISTRICT COURT'S OPINION, 323 F.SUPP.  769, 777.  A CORRESPONDING
REGULATION WAS ADOPTED FOR GIFT TAX PURPOSES.  TREAS. REG. ^ 25.2512 -
6 (B). 

/6/  IN ESTATE OF WELLS V. COMMISSIONER, SUPRA, THE TAX COURT
SUSTAINED THE REGULATION, WITH SIX JUDGES DISSENTING.  THAT DECISION
WAS AFFIRMED BY THE SIXTH CIRCUIT IN RUEHLMANN V. COMMISSIONER, 418
F.2D 1302 (1968), CERT. DENIED, 398 U.S. 950 (1970).  THE COMPANION
GIFT TAX REGULATION WAS UPHELD IN HOWELL V. UNITED STATES, 414 F.2D 45
(CA7 1969).  REGULATION ^ 20.2031 - 8 (B) WAS HELD INVALID IN DAVIS V.
UNITED STATES, 460 F.2D 769 (CA9 1972), AFF'G 306 F.SUPP.  949 (CD CAL.
1969).  SEE ALSO HICKS V. UNITED STATES, 335 F.SUPP.  474 (COLO. 1971),
APPEAL PENDING IN THE TENTH CIRCUIT, NO. 72 - 1360. 

/7/  SEE TREAS. REG. 63 RELATING TO ESTATE TAX UNDER THE REVENUE ACT
OF 1921, ART. 13 (1922 ED.)  ("THE CRITERION OF SUCH VALUE IS THE PRICE
WHICH A WILLING BUYER WILL PAY TO A WILLING SELLER FOR THE PROPERTY IN
QUESTION UNDER THE CIRCUMSTANCES EXISTING AT THE DATE OF THE DECEDENT'S
DEATH . . ."); TREAS. REG. 105 RELATING TO THE ESTATE TAX UNDER THE
INTERNAL REVENUE CODE (OF 1939), ^ 81.10 (1942). 

/8/  WHATEVER THE SITUATIONS MAY BE WHERE IT IS REALISTIC AND
APPROPRIATE UNDER TREAS. REG. ^ 20.2031 - 1 (B) TO USE A STANDARDIZED
RETAIL PRICE TO MEASURE VALUE FOR ESTATE TAX PURPOSES, IT IS SUFFICIENT
TO NOTE HERE THAT, FOR THE REASONS GIVEN, THE VALUATION OF MUTUAL FUND
SHARES DOES NOT PRESENT ONE OF THOSE SITUATIONS. 

/9/  THE GOVERNMENT ARGUES THAT, AS A PRACTICAL MATTER, AN ESTATE
WOULD RARELY BE HURT BY VALUATION OF MUTUAL FUND SHARES AT THE ASKED
PRICE, BECAUSE TREAS. REG. ^ 20.2053 - 3 (D) (2) PERMITS AN ESTATE TO
DEDUCT THE DIFFERENCE BETWEEN THE ASKED AND BID PRICES IF THE SHARES
ARE SOLD TO PAY CERTAIN ENUMERATED EXPENSES.  BY ITS TERMS, HOWEVER,
THAT REGULATION APPLIES ONLY IF "THE SALE IS NECESSARY" TO PAY THOSE
EXPENSES.  IN ANY EVENT, THE REGULATION IS INAPPLICABLE ALTOGETHER IF
THE SHARES ARE TRANSFERRED IN KIND TO AN HEIR OR LEGATEE. 

/10/  IT IS NO COINCIDENCE THAT THE CONTESTED REGULATION WAS PLACED IN
TREAS. REG. ^ 20.2031 - 8, WHICH DEALS WITH "(VALUATION OF CERTAIN LIFE
INSURANCE AND ANNUITY CONTRACTS.  . . ."  BUT WE AGREE WITH JUDGE
WINNER: 

"THE COMMISSIONER CANNOT CROSS-BREED LIFE INSURANCE AND INVESTMENT
TRUST SHARES BY THE SIMPLE EXPEDIENT OF DISCUSSING THEM IN SEPARATE
PARAGRAPHS OF A SINGLE REGULATION."  HICKS V. UNITED STATES, 335
F.SUPP., AT 482. 

/11/  SEE 1966 SEC REPORT 51 - 59. 

[[DOP 

MR. JUSTICE STEWART, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

THIS CASE PRESENTS A NARROW ISSUE OF LAW REGARDING THE VALUATION OF
CERTAIN ASSETS--SHARES IN AN OPEN-END INVESTMENT COMPANY OR "MUTUAL
FUND"--FOR PURPOSES OF THE FEDERAL ESTATE TAX.  THE CASE TURNS UPON A
SINGLE QUESTION OF LAW:  WHETHER OR NOT ^ 20.2031 - 8 (B) OF THE
TREASURY REGULATIONS, WHICH PROVIDES A SPECIFIC METHOD FOR VALUING SUCH
SHARES, REPRESENTS A REASONABLE IMPLEMENTATION OF THE LEGISLATION
ENACTED BY CONGRESS. 

[[HC558'(ORIGINAL DOCUMENT PAGE 558)' 

ON DECEMBER 4, 1964, MRS. ETHEL BENNETT DIED TESTATE LEAVING, AMONG
OTHER PROPERTY, SEVERAL THOUSAND SHARES IN THREE SEPARATE MUTUAL
FUNDS.  EACH OF THE FUNDS IN QUESTION IS MANAGED BY A FIRM KNOWN AS
INVESTORS DIVERSIFIED SERVICES, INC., AND ALL ARE SUBJECT TO REGULATION
BY THE SECURITIES AND EXCHANGE COMMISSION UNDER THE INVESTMENT COMPANY
ACT OF 1940.  IN HIS TAX RETURN FOR THESE SHARES AT THEIR SO-CALLED
"NET ASSET VALUE," THAT IS, THE AMOUNT AT WHICH THE ESTATE IS ENTITLED,
AS A MATTER OF LAW, TO HAVE THE SHARES REDEEMED BY THE ISSUER.  THE NET
ASSET VALUE OF A MUTUAL FUND SHARE IS CALCULATED DAILY BY THE ISSUING
COMPANY, AND IS EQUIVALENT TO THE FRACTIONAL VALUE PER SHARE OF THE
FUND'S TOTAL NET ASSETS ON THAT DAY.  IN ADDITION TO SERVING AS A GAUGE
FOR THE REDEMPTION VALUE OF FUND SHARES ALREADY ISSUED, NET ASSET VALUE
IS ALSO EMPLOYED BY THE ISSUING COMPANIES IN DETERMINING THE PRICE AT
WHICH THEY WILL OFFER NEW SHARES IN THE FUND TO THE PUBLIC ON ANY GIVEN
DAY.  IN GENERAL, SUCH SHARES ARE SOLD TO THE PUBLIC AT THEIR NET ASSET
VALUE PLUS A SALES CHARGE OR "LOAD."  THE LOAD IS A VARYING PERCENTAGE
OF THE VALUE OF THE SHARES SOLD, AND FLUCTUATES IN ACCORDANCE WITH SIZE
OF THE PURCHASE.  IN THE CASE OF MRS. BENNETT'S SHARES, THE MAXIMUM
ALLOWABLE SALES LOAD AT THE TIME OF HER DEATH RANGED BETWEEN 7% AND 8%,
AND THE MINIMUM WAS 1%. 

UPON RECEIPT OF RESPONDENT'S RETURN, THE COMMISSIONER ACTING IN
ACCORDANCE WITH TREAS. REG. ^ 20.2031 - 8 (B), /1/  ASSESSED A
DEFICIENCY, CONTENDING THAT THE VALUE OF MRS. BENNETT'S SHARES FOR
FEDERAL ESTATE TAX PURPOSES WAS THEIR PUBLIC OFFERING PRICE ON THE DATE
OF HER DEATH, THAT IS, THE PRICE WHICH A MEMBER OF THE PUBLIC WOULD
HAVE HAD TO PAY TO ACQUIRE SIMILAR SHARES FROM THE ISSUER. 

[[HC559'(ORIGINAL DOCUMENT PAGE 559)'  THIS PRICE WOULD, OF COURSE,
ENCOMPASS NOT ONLY THE NEW ASSET VALUE OF THE SHARES, BUT ALSO THE
APPLICABLE SALES LOAD.  SUCH A METHOD OF VALUATION FOR MUTUAL FUND
SHARES IS EXPRESSLY PRESCRIBED BY THE TREASURY REGULATION NOTED ABOVE. 
THUS, THE SOLE QUESTION BEFORE US IS WHETHER THAT REGULATION
CONSTITUTES A REASONABLE EXERCISE BY THE COMMISSIONER OF HIS STATUTORY
POWER TO PRESCRIBE "ALL NEEDFUL RULES" FOR THE PROPER ENFORCEMENT OF
THE TAX LAWS, SEE 26 U.S.C. ^ 7805, OR WHETHER THE REGULATION IS SO
INHERENTLY UNREASONABLE AND INCONSISTENT WITH THE STATUTE AS TO BE
INVALID.  UNITED STATES V. CORRELL, 389 U.S. 299; BINGLER V. JOHNSON,
394 U.S. 741.  UPON THE FACTS PRESENTED BY THIS CASE, I CANNOT SAY THAT
THE COMMISSIONER'S REGULATION IS INVALID, AND I THEREFORE DISSENT FROM
THE DECISION OF THE COURT. 

AT THE OUTSET, IT MAY BE WELL TO NOTE THE BASIC GENERAL RULE WITH
RESPECT TO VALUATION THAT PREVAILS UNDER OUR ESTATE TAX LAWS.  THIS
RULE IS EMBODIED IN TREAS. REG. ^ 20.2031 - 1 (B), AND PROVIDES THAT
THE VALUE OF PROPERTY INCLUDABLE IN A DECEDENT'S ESTATE SHALL BE THE
FAIR MARKET VALUE OF SUCH PROPERTY AT THE DATE OF THE DECEDENT'S
DEATH.  "THE FAIR MARKET VALUE IS THE PRICE AT WHICH THE PROPERTY WOULD
CHANGE HANDS BETWEEN A WILLING BUYER AND A WILLING SELLER, NEITHER
BEING.UNDER ANY COMPULSION TO BUY OR TO SELL AND BOTH HAVING REASONABLE
KNOWLEDGE OF RELEVANT FACTS."  26 CFR ^ 20 - 2031 - 1 (B). 

THE DIFFICULTY IN APPLYING THIS RULE TO MUTUAL FUND SHARES--A
DIFFICULTY WHICH, NO DOUBT, LED THE COMMISSIONER TO PROMULGATE
REGULATION ^ 20.2031 - 8 (B)--IS THAT SUCH SHARES ONCE ISSUED ARE NOT
SUBJECT TO DISPOSITION IN A MARKET OF "WILLING BUYERS" AND "WILLING
SELLERS."  INDEED, AS BOTH THE DISTRICT COURT AND THE COURT OF APPEALS
NOTED, THE ONLY PRACTICAL MEANS OF DISPOSING OF MUTUAL FUND SHARES ONCE
ACQUIRED IS REDEMPTION, AND REDEMPTION CANNOT BE DEEMED A SALE OF THE
SORT DESCRIBED IN THE GENERAL RULE (26 CFR ^ 20.2031 - 1 (B), SINCE THE
PARTY PURCHASING (THE ISSUING COMPANY) IS UNDER AN ABSOLUTE OBLIGATION
TO REDEEM THE SHARES WHEN TENERED, AND THE PARTY SELLING HAS NO
PRACTICAL ALTERNATIVE, IF HE WISHES TO LIQUIDATE HIS HOLDINGS, OTHER
THAN TO OFFER THEM TO THE ISSUING COMPANY FOR REDEMPTION. 
[[HC560'(ORIGINAL DOCUMENT PAGE 560)'     THIS BEING THE CASE, THE
COMMISSIONER WAS FACED WITH THE PROBLEM OF ESTABLISHING A METHOD OF
VALUING THE SHARES MOST NEARLY EQUAL TO THEIR INHERENT WORTH.  IN DOING
SO, HE CHOSE NOT TO TREAT THEIR REDEMPTION VALUE AS DISPOSITIVE OF THIS
QUESTION.  IN PROMULGATING HIS REGULATION, HE MIGHT RATIONALLY HAVE
CONSIDERED THAT "ON DEMAND" REDEMPTION AT NET ASSET VALUE IS BUT ONE OF
MANY RIGHTS INCIDENT TO THE OWNERSHIP OF MUTUAL FUND SHARES. 

FOR EXAMPLE, IN THE CASE OF MRS. BENNETT'S SHARES, HER ESTATE HAD
NOT ONLY THE RIGHT TO REDEEM THEM "ON DEMAND," BUT ALSO TO RETAIN THEM;
AND IF IT HAD DONE SO IT WOULD HAVE POSSESSED NOT ONLY THE NORMAL
DIVIDEND AND CAPITAL GAINS RIGHTS ASSOCIATED WITH MOST INVESTMENTS, BUT
ALSO THE RIGHT TO HAVE SUCH DIVIDENDS AND CAPITAL GAINS AS ACCRUED
APPLIED TOWARD THE PURCHASE OF ADDITIONAL SHARES AT A PRICE BELOW THAT
WHICH A MEMBER OF THE GENERAL PUBLIC WOULD HAVE HAD TO PAY FOR SUCH
SHARES.  IN ADDITION, UNDER THE INVESTMENT CONTRACTS INVOLVED HERE,
MRS. BENNETT'S ESTATE WOULD HAVE HAD THE RIGHT TO EXCHANGE HER SHARES
IN ANY ONE OF THE THREE MUTUAL FUNDS INVOLVED FOR THOSE OF EITHER OR
BOTH OF THE OTHER FUNDS MANAGED BY INVESTORS DIVERSIFIED SERVICES, INC.
-WITHOUT PAYING THE USUAL SALES CHARGE OR LOAD. 

THE COMMISSIONER HAS DETERMINED THAT THE PROPER METHOD OF VALUING
ALL THE RIGHTS, BOTH REDEMPTIVE AND OTHERWISE, INCIDENT TO THE
OWNERSHIP OF MUTUAL FUND SHARES IS TO DETERMINE WHAT A MEMBER OF THE
GENERAL PUBLIC, ACTING UNDER NO CONSTRAINTS, WOULD HAVE HAD TO PAY FOR
THESE RIGHTS IF PURCHASED ON THE OPEN MARKET. 

[[HC561'(ORIGINAL DOCUMENT PAGE 561)'  AND, AS NOTED EARLIER,
ALTHOUGH NO SUCH MARKET EXISTS FOR MUTUAL FUND SHARES ONCE ISSUED TO AN
INVESTOR, A PERFECTLY NORMAL MARKET OF WILLING BUYERS AND SELLERS DOES
EXIST WITH RESPECT TO SUCH SHARES PRIOR TO THEIR ISSUANCE.  THUS, THE
COMMISSIONER TOOK THE PRICE AT WHICH THE SHARES WOULD HAVE SOLD ON THIS
MARKET AS FAIRLY REFLECTIVE OF THEIR INHERENT WORTH.  I CANNOT SAY THAT
THIS METHOD OF VALUATION ADOPTED BY THE COMMISSIONER, AND EMBODIED IN
REGULATION ^ 20.2031 - 8 (B), IS SO UNREASONABLE AND INCONSISTENT WITH
THE STATUTE AS TO RENDER IT INVALID. 

THE RESPONDENT'S CLAIM THAT THE REGULATION IS INVALID IS GROUNDED
UPON TWO PRINCIPAL ARGUMENTS.  FIRST, HE SAYS, THE ESTATE IS BEING
TAXED ON AN AMOUNT IN EXCESS OF WHAT IT CAN, AS PRACTICAL MATTER,
REALIZE FROM THE DISPOSITION OF THE MUTUAL FUND SHARES.  BUT THIS IS
EQUALLY TRUE OF MANY OTHER ASSETS SUBJECT TO TAXATION UNDER OUR ESTATE
TAX LAWS.  FOR EXAMPLE, REAL PROPERTY PASSING INTO AN ESTATE IS TAXED
UPON ITS FULL FAIR MARKET VALUE, DESPITE THE FACT THAT AS A PRACTICAL
MATTER THE ESTATE MUST USUALLY PAY SOME PERCENTAGE OF THAT SUM IN
BROKERAGE FEES IF IT WISHES TO DISPOSE OF THE PROPERTY AND RECEIVE CASH
IN ITS STEAD.  THIS ATTACK UPON THE REGULATION THUS AMOUNTS TO NO LESS
THAN AN ATTACK UPON THE WHOLE SYSTEM OF VALUATION EMBODIED IN THE
TREASURY REGULATIONS ON ESTATE TAX, BASED AS IT IS UPON FAIR VALUE IN
AN OPEN MARKET.  I AM NOT READY TO HOLD THAT THIS LONG-ESTABLISHED AND
LONG-ACCEPTED SYSTEM IS BASICALLY INVALID. 

THE RESPONDENT'S SECOND ARGUMENT IS THAT THE REGULATION PLACES A
HIGHER VALUATION ON MUTUAL FUND SHARES THAN IS PLACED UPON REGISTERED
COMMON STOCK SHARES AND OTHER SIMILARLY TRADED SECURITIES.  THIS
ARGUMENT ASSUMES THAT THE REDEMPTION OR NET ASSET VALUE OF A MUTUAL
FUND SHARE IS IDENTICAL TO THE FAIR MARKET VALUE OF A TRADED SECURITY,
AND, BY A PARITY OF REASONING, THAT THE SALES CHARGE OR LOAD ASSOCIATED
WITH MUTUAL FUND PURCHASES IS EQUIVALENT TO THE COMMISSION THAT A
STOCKBROKER CHARGES A PURCHASER OF SECURITIES. 

[[HC562'(ORIGINAL DOCUMENT PAGE 562)'  UNDER THIS VIEW, THE
COMMISSIONER WOULD BE ENTITLED TO TAX MUTUAL FUND SHARES PASSING INTO
AN ESTATE ONLY ON THEIR NET ASSET VALUE, SINCE IN THE ALLEGEDLY
COMPARABLE SITUATION OF COMMON STOCK SHARES NO CONSIDERATION MAY BE
GIVEN TO BROKERS' COMMISSIONS IN ARRIVING AT AN APPROPRIATE VALUATION
FOR ESTATE TAX PURPOSES.  SEE 26 CFR ^ 20.2031 - 2 (B). 

ALTHOUGH THIS ARGUMENT HAS A CERTAIN SUPERFICIAL APPEAL, THE ANALOGY
ON WHICH IT RELIES IS HARDLY AN EXACT ONE.  FOR AN ESTATE IN DISPOSING
OF MARKETABLE SECURITIES MUST PAY A BROKERAGE COMMISSION ON THEIR SALE,
AND WILL THUS REALIZE LESS THAN THE AMOUNT AT WHICH THE SECURITIES HAVE
BEEN VALUED, WHILE AN ESTATE TURNING IN MUTUAL FUND SHARES FOR
REDEMPTION PAYS NO COMMISSION OR OTHER SURCHARGE WHATEVER.  MOREOVER,
UNLIKE TRADITIONAL SECURITIES THERE IS NO OPEN TRADING MARKET FOR
MUTUAL FUND SHARES ONCE ISSUED AND IN THE HANDS OF AN INVESTOR.  IF
SUCH A MARKET OF WILLING BUYERS AND SELLERS DID EXIST, THE COMMISSIONER
WOULD DOUBTLESS BE BOUND TO TREAT MUTUAL FUND SHARES EXACTLY LIKE OTHER
SECURITIES.  BUT WHERE NO MARKET FOR AN ASSET EXISTS, THERE SIMPLY IS
NO MARKET PRICE TO PROVIDE A READILY IDENTIFIABLE STANDARD FOR
VALUATION.  UNDER THESE CIRCUMSTANCES, IT IS THE COMMISSIONER'S DUTY
UNDER THE STATUTE TO ESTABLISH CRITERIA FOR DETERMINING THE TRUE WORTH
OF THE TOTALITY OF RIGHTS AND BENEFITS INCIDENT TO OWNERSHIP OF THE
ASSET.  THIS THE COMMISSION HAS DONE IN REGULATION ^ 20.231 - 8 (B) BY
PROVIDING THAT THE VALUE SHALL BE THE PRICE A MEMBER OF THE GENERAL
PUBLIC WOULD HAVE TO PAY TO ACQUIRE SUCH SHARE.  SUCH AN APPROACH OF
WILLING BUYERS AND SELLERS HAS ALREADY BEEN SUSTAINED BY THIS COURT IN
A CASE CLOSELY AKIN TO THE CASE BEFORE US.  SEE GUGGENHEIM V. RASQUIN,
312 U.S. 254. 

[[HC563'(ORIGINAL DOCUMENT PAGE 563)' 

GIVEN THE PECULIAR CHARACTERISTICS OF MUTUAL FUND SHARES, IT IS
ARGUABLE THAT THE COMMISSIONER MIGHT REASONABLY HAVE ADOPTED A METHOD
OF VALUATION DIFFERENT FROM THAT WHICH HE HAS CHOSEN.  BUT THAT IS A
QUESTION THAT IS NOT FOR USE TO DECIDE.  "(WE) DO NOT SIT AS A
COMMITTEE OF REVISION TO PERFECT THE ADMINISTRATION OF THE TAX LAWS. 
CONGRESS HAS DELEGATED TO THE COMMISSIONER, NOT TO THE COURTS, THE TASK
OF PRESCRIBING 'ALL NEEDFUL RULES AND REGULATIONS FOR THE ENFORCEMENT'
OF THE INTERNAL REVENUE CODE.  26 U.S.C. ^ 7805 (A).  IN THIS AREA OF
LIMITLESS FACTUAL VARIATIONS, 'IT IS THE PROVINCE OF CONGRESS AND THE
COMMISSIONER, NOT THE COURTS, TO MAKE THE APPROPRIATE ADJUSTMENTS.'" 
UNITED STATES V. CORRELL, 389 U.S., AT 306 - 307.  SEE BINGLER V.
JOHNSON, 394 U.S., AT 750. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND SUSTAIN THE
VALIDITY OF THE REGULATION. 

[[DFN 

/1/  THE TEXT OF THE REGULATION, INSOFAR AS RELEVANT HERE, READS AS
FOLLOWS:  "THE FAIR MARKET VALUE OF A SHARE IN AN OPEN-END INVESTMENT
COMPANY (COMMONLY KNOWN AS A 'MUTUAL FUND') IS THE PUBLIC OFFERING
PRICE OF A SHARE, ADJUSTED FOR ANY REDUCTION IN PRICE AVAILABLE TO THE
PUBLIC IN ACQUIRING THE NUMBER OF SHARES BEING VALUED.  . . ." 

THERE IS A COMPANION GIFT TAX REGULATION OF IDENTICAL IMPORT.  SEE
26 CFR ^ 25.2512 - 6 (B). 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL CRAMPTON, RICHARD
B. STONE, LORING W. POST, AND DAVID ENGLISH CARMACK. 

RALPH J. GREGG ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS GEORGE M. ZIMMERMANN. 

MEYER EISENBERG AND ROBERT L. AUGENBLICK FILED A BRIEF FOR THE
INVESTMENT COMPANY INSTITUTE AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :









GIBSON ET AL. V. BERRYHILL ET AL., 411 U.S. 564 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF ALABAMA

        NO. 71 - 653.  ARGUED JANUARY 9 - 10, 1973--DECIDED MAY 7,

    1973; 331 F.SUPP.  122, VACATED AND REMANDED. 


    APPELLEES, LICENSED OPTOMETRISTS EMPLOYED BY LEE OPTICAL CO.,

  WHO WERE NOT MEMBERS OF THE ALABAMA OPTOMETRIC ASSOCIATION

  (ASSOCIATION), WERE CHARGED BY THE ASSOCIATION WITH

  UNPROFESSIONAL CONDUCT WITHIN THE MEANING OF THE STATE OPTOMETRY

  STATUTE BECAUSE OF THEIR EMPLOYMENT WITH THE COMPANY.  THE

  COMPLAINT WAS FILED WITH THE ALABAMA BOARD OF OPTOMETRY (BOARD),

  ALL MEMBERS OF WHICH WERE ASSOCIATION SUIT IT HAD BROUGHT AGAINST

  OPTOMETRISTS AND THEIR EMPLOYER, LEE OPTICAL, TO ENJOIN THE

  COMPANY FROM PRACTICING OPTOMETRY WAS LITIGATED IN THE STATE

  TRIAL COURT.  THE CHARGES AGAINST THE INDIVIDUAL DEFENDANTS WERE

DISMISSED BUT THE COURT ENJOINED LEE OPTICAL FROM ENGAGING IN THE

  PRACTICE OF OPTOMETRY.  THE COMPANY APPEALED.  WHEN THE BOARD

  REVIVED THE ASSOCIATIONS'S CHARGES AGAINST APPELLEES, THEY SOUGHT

  AN INJUNCTION IN THE FEDERAL DISTRICT COURT UNDER THE CIVIL

  RIGHTS ACT CLAIMING THAT THE BOARD WAS BIASED.  THE COURT

  CONCLUDED THAT IT WAS NOT BARRED FROM ACTING BY THE FEDERAL

  ANTI-INJUNCTION STATUTE SINCE ONLY ADMINISTRATIVE PROCEEDINGS

  WERE INVOLVED AND THAT EXHAUSTION OF ADMINISTRATIVE REMEDIES WAS

  NOT MANDATED WHERE THE ADMINISTRATIVE PROCESS WAS BIASED IN THAT

  THE BOARD BY ITS LITIGATION IN THE STATE COURTS HAD PREJUDGED THE

  CASE AGAINST APPELLEES AND THE BOARD MEMBERS HAD AN INDIRECT

  PECUNIARY INTEREST IN THE OUTCOME.  THE DISTRICT COURT ENJOINED

  THE BOARD PROCEEDINGS BUT THEREAFTER AND BEFORE THIS APPEAL WAS

  TAKEN, THE STATE'S HIGHEST COURT REVERSED THE JUDGMENT AGAINST

  LEE OPTICAL AND HELD THAT THE OPTOMETRY LAW DID NOT PROHIBIT A

  LICENSED OPTOMETRIST FROM WORKING FOR A CORPORATION.  HELD: 

     1.  THE ANTI-INJUNCTION STATUTE DID NOT BAR THE DISTRICT COURT

  FROM ISSUING THE INJUNCTION SINCE APPELLEES BROUGHT SUIT UNDER

THE CIVIL RIGHTS ACT, 42 U.S.C. ^ 1983.  PP. 572 - 575. 

  2.  NOR DID THE RULE OF YOUNGER V. HARRIS, 401 U.S. 37, OR

  PRINCIPLES OF COMITY REQUIRE THE DISTRICT COURT TO DISMISS

  APPELLEES' SUIT IN VIEW OF THE PENDING BOARD PROCEEDING SINCE THE

  APPELLEES ALLEGED AND THE DISTRICT COURT CONCLUDED THAT THE

  BOARD'S BIAS RENDERED IT INCOMPETENT TO ADJUDICATE THE ISSUES. 

  PP. 575 - 577. 

[[HC565'(ORIGINAL DOCUMENT PAGE 565)' 

     3.  SINCE THE BOARD WAS COMPOSED SOLELY OF PRIVATE

  PRACTITIONERS AND THE CORPORATE EMPLOYEES IT SOUGHT TO BAR FROM

  PRACTICE CONSTITUTED HALF THE OPTOMETRISTS IN THE STATE, THE

  DISTRICT COURT WAS WARRANTED IN CONCLUDING THAT THE BOARD

  MEMBERS'  PECUNIARY INTEREST DISQUALIFIED THEM FROM PASSING ON

  THE ISSUES.  PP. 578 - 579. 

     4.  THOUGH THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

  NOT ABSTAINING UNTIL THE LEE OPTICAL DECISION WAS RENDERED BY THE

  ALABAMA SUPREME COURT, THE PRINCIPLES OF EQUITY, COMITY, AND

  FEDERALISM WARRANT RECONSIDERATION OF THIS CASE IN THE LIGHT OF

  THAT DECISION.  PP. 579 - 581. 

     WHITE, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

  BURGER, C.J., FILED A CONCURRING OPINION, POST, P. 581. 

  MARSHALL, J., FILED A CONCURRING OPINION, IN WHICH BRENNAN, J.,

  JOINED, POST, P. 581. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PRIOR TO 1965, THE LAWS OF ALABAMA RELATING TO THE PRACTICE OF
OPTOMETRY PERMITTED ANY PERSON, INCLUDING A BUSINESS FIRM OR
CORPORATION, TO MAINTAIN A DEPARTMENT IN WHICH "EYES ARE EXAMINED OR
GLASSES FITTED," PROVIDED THAT SUCH DEPARTMENT WAS IN THE CHARGE OF A
DULY LICENSED OPTOMETRIST.  THIS PERMISSION WAS EXPRESSLY CONFERRED BY
^ 210 OF TITLE 46 OF THE ALABAMA CODE OF 1940, AND ALSO INFERENTIALLY
BY ^ 211 OF THE CODE WHICH REGULATES THE ADVERTISING PRACTICES OF OF
OPTOMETRISTS, AND WHICH, UNTIL 1965, APPEARED TO CONTEMPLATE THE
EXISTENCE OF COMMERCIAL STORES WITH OPTICAL DEPARTMENTS.  /1/ 

[[HC566'(ORIGINAL DOCUMENT PAGE 566)'  IN 1965, ^ 210 WAS REPEALED
IN ITS ENTIRETY BY THE ALABAMA LEGISLATURE, AND ^ 211 WAS AMENDED SO AS
TO ELIMINATE ANY DIRECT REFERENCE TO OPTICAL DEPARTMENTS MAINTAINED BY
CORPORATIONS OR OTHER BUSINESS ESTABLISHMENTS UNDER THE DIRECTION OF
EMPLOYEE OPTOMETRISTS.  /2/ 

[[HC567'(ORIGINAL DOCUMENT PAGE 567)' 

SOON AFTER THESE STATUTORY CHANGES, THE ALABAMA OPTOMETRIC
ASSOCIATION, A PROFESSIONAL ORGANIZATION WHOSE MEMBERSHIP IS LIMITED TO
INDEPENDENT PRACTITIONERS OF OPTOMETRY NOT EMPLOYED BY OTHERS, FILED
CHARGES AGAINST VARIOUS NAMED OPTOMETRISTS, ALL OF WHOM WERE DULY
LICENSED UNDER ALABAMA LAW BUT WERE THE SALARIED EMPLOYEES OF LEE
OPTICAL CO. THE CHARGES WERE FILED WITH THE ALABAMA BOARD OF OPTOMETRY,
THE STATUTORY BODY WITH AUTHORITY TO ISSUE, SUSPEND, AND REVOKE
LICENSES FOR THE PRACTICE OF OPTOMETRY.  THE GRAVAMENT OF THESE CHARGES
WAS THAT THE NAMED OPTOMETRISTS, BY ACCEPTING EMPLOYMENT FROM LEE
OPTICAL, A CORPORATION, HAD ENGAGED IN "UNPROFESSIONAL CONDUCT" WITHIN
THE MEANING OF ^ 206 OF THE ALABAMA OPTOMETRY STATUTE, AND HENCE WERE
PRACTICING THEIR PROFESSION UNLAWFULLY.  /3/  MORE PARTICULARLY, THE
ASSOCIATION CHARGED THE NAMED INDIVIDUALS WITH, AMONG OTHER THINGS,
AIDING AND ABETTING A CORPORATION IN THE ILLEGAL PRACTICE OF OPTOMETRY;
PRACTICING OPTOMETRY UNDER A FALSE NAME, THAT IS, LEE OPTICAL CO.;
UNLAWFULLY SOLICITING THE SALE OF GLASSES; LENDING THEIR LICENSES TO
LEE OPTICAL CO.; AND SPLITTING OR DIVIDING FEES WITH LEE OPTICAL.  /4/ 

[[HC568'(ORIGINAL DOCUMENT PAGE 568)'  IT WAS APPARENTLY THE
ASSOCIATION'S POSITION THAT, FOLLOWING THE REPEAL OF ^ 210 AND THE
AMENDMENT OF ^ 211, THE PRACTICE OF OPTOMETRY BY INDIVIDUALS AS
EMPLOYEES OF BUSINESS CORPORATIONS WAS NO LONGER PERMISSIBLE IN
ALABAMA, AND THAT, BY ACCEPTING SUCH EMPLOYMENT, THE NAMED OPTOMETRISTS
HAD VIOLATED THE ETHICS OF THEIR PROFESSION.  IT WAS PRAYED THAT THE
BOARD REVOKE THE LICENSES OF THE INDIVIDUALS CHARGED FOLLOWING DUE
NOTICE AND A PROPER HEARING. 

TWO DAYS AFTER THESE CHARGES WERE FILED BY THE ASSOCIATION IN
OCTOBER 1965, THE BOARD FILED A SUIT OF ITS OWN IN STATE COURT AGAINST
LEE OPTICAL, SEEKING TO ENJOIN THE COMPANY FROM ENGAGING IN THE
"UNLAWFUL PRACTICE OF OPTOMETRY."  THE BOARD'S COMPLAINT ALSO NAMED 13
OPTOMETRISTS EMPLOYED BY LEE OPTICAL AS PARTIES DEFENDANT, CHARGING
THEM WITH AIDING AND ABETTING THE COMPANY IN ITS ILLEGAL ACTIVITIES, AS
WELL AS WITH OTHER IMPROPER CONDUCT VERY SIMILAR TO THAT CHARGED BY THE
ASSOCIATION IN ITS COMPLAINT TO THE BOARD. 

[[HC569'(ORIGINAL DOCUMENT PAGE 569)' 

PROCEEDINGS ON THE ASSOCIATION'S CHARGES WERE HELD IN ABEYANCE BY
THE BOARD WHILE ITS OWN STATE COURT SUIT PROGRESSED.  THE INDIVIDUAL
DEFENDANTS IN THAT SUIT WERE DISMISSED ON GROUNDS THAT DO NOT
ADEQUATELY APPEAR IN THE RECORD BEFORE US; AND, EVENTUALLY, ON MARCH
17, 1971, THE STATE TRIAL COURT RENDERED JUDGMENT FOR THE BOARD, AND
ENJOINED LEE OPTICAL BOTH FROM PRACTICING OPTOMETRY WITHOUT A LICENSE
AND FROM EMPLOYING LICENSED OPTOMETRISTS.  /5/  THE COMPANY APPEALED
THIS JUDGMENT. 

MEANWHILE, FOLLOWING ITS VICTORY IN THE TRIAL COURT, THE BOARD
REACTIVIATED THE PROCEEDINGS PENDING BEFORE IT SINCE 1965 AGAINST THE
INDIVIDUAL OPTOMETRISTS EMPLOYED BY LEE, NOTICING THEM FOR HEARINGS TO
BE HELD ON MAY 26 AND 27, 1971.  THOSE INDIVIDUALS COUNTERED ON MAY 14,
1971, BY FILING A COMPLAINT IN THE UNITED STATES DISTRICT COURT NAMING
AS DEFENDANTS THE BOARD OF OPTOMETRY AND ITS INDIVIDUAL MEMBERS, AS
WELL AS THE ALABAMA OPTOMETRIC ASSOCIATION AND OTHER INDIVIDUALS.  THE
SUIT, BROUGHT UNDER THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. ^ 1983,
SOUGHT AN INJUNCTION AGAINST THE SCHEDULED HEARINGS ON THE GROUNDS THAT
THE STATUTORY SCHEME REGULATING THE PRACTICE OF OPTOMETRY IN ALABAMA
/6/  WAS UNCONSTITUTIONAL INSOFAR AS IT PERMITTED THE BOARD TO HEAR THE
PENDING CHARGES AGAINST THE INDIVIDUAL PLAINTIFFS IN THE FEDERAL SUIT. 
/7/ 

[[HC570'(ORIGINAL DOCUMENT PAGE 570)'  THE THRUST OF THE COMPLAINT
WAS THAT THE BOARD WAS BIASED AND COULD NOT PROVIDE THE PLAINTIFFS WITH
A FAIR AND IMPARTIAL HEARING IN CONFORMITY WITH DUE PROCESS OF LAW. 

A THREE-JUDGE COURT WAS CONVENED IN AUGUST 1971, AND SHORTLY
THEREAFTER ENTERED JUDGMENT FOR PLAINTIFFS, ENJOINING MEMBERS OF THE
STATE BOARD AND THEIR SUCCESSORS "FROM CONDUCTING A HEARING ON THE
CHARGES HERETOFORE PREFERRED AGAINST THE PLAINTIFFS" AND FROM REVOKING
THEIR LICENSES TO PRACTICE OPTOMETRY IN THE STATE OF ALABAMA. 

IN ITS SUPPORTING OPINION, 331 F.SUPP.  122, THE DISTRICT COURT
FIRST CONSIDERED WHETHER IT SHOULD STAY ITS HAND AND DEFER TO THE THEN
PENDING STATE PROCEEDINGS--THAT IS, WHETHER THE SITUATION PRESENTED WAS
ONE WHICH WOULD PERMIT OF IMMEDIATE FEDERAL INTERVENTION TO RESTRAIN
THE ACTIONS OF A STATE ADMINISTRATIVE BODY.  THAT QUESTION WAS ANSWERED
IN THE AFFIRMATIVE, THE COURT HOLDING THAT 28 U.S.C. ^ 2283, THE
FEDERAL ANTI-INJUNCTION STATUTE, WAS NOT APPLICABLE TO STATE
ADMINISTRATIVE PROCEEDINGS EVEN WHERE THOSE PROCEEDINGS WERE
ADJUDICATORY IN CHARACTER.  MOREOVER, THE DISTRICT COURT ALSO HELD THAT
NEITHER YOUNGER V. HARRIS, 401 U.S. 37 (1971), NOR THE DOCTRINE
NORMALLY REQUIRING EXHAUSTION OF ADMINISTRATIVE REMEDIES FORBADE A
FEDERAL INJUNCTION WHERE, AS THE COURT FOUND TO BE TRUE HERE, THE
ADMINISTRATIVE PROCESS WAS SO DEFECTIVE AND INADEQUATE AS TO DEPRIVE
THE PLAINTIFFS OF DUE PROCESS OF LAW. 

THIS CONCLUSION WITH RESPECT TO THE DEFICIENCIES IN THE PENDING
PROCEEDINGS AGAINST PLAINTIFFS, ALTHOUGH AN AMALGAM OF SEVERAL
ELEMENTS, AMOUNTED BASICALLY TO A SUSTAINING OF THE PLAINTIFFS'
ALLEGATION OF BIAS. 

[[HC571'(ORIGINAL DOCUMENT PAGE 571)'  FOR THE DISTRICT COURT, THE
INQUIRY WAS NOT WHETHER THE BOARD MEMBERS WERE "ACTUALLY BIASED BUT
WHETHER, IN THE NATURAL COURSE OF OF EVENTS, THERE IS AN INDICATION OF
A POSSIBLE TEMPTATION TO AN AVERAGE MAN SITTING AS A JUDGE TO TRY THE
CASE WITH BIAS FOR OR AGAINST ANY ISSUE PRESENTED TO HIM."  331
F.SUPP., AT 125.  SUCH A POSSIBILITY OF BIAS WAS FOUND TO ARISE IN THE
PRESENT CASE FROM A NUMBER OF FACTORS.  FIRST, WAS THE FACT THAT THE
BOARD, WHICH ACTS AS BOTH PROSECUTOR AND JUDGE IN DELICENSING
PROCEEDINGS, HAD PREVIOUSLY BROUGHT SUIT AGAINST THE PLAINTIFFS ON
VIRTUALLY IDENTICAL CHARGES IN THE STATE COURTS.  THIS THE DISTRICT
COURT TOOK TO INDICATE THAT MEMBERS OF THE BOARD MIGHT HAVE
"PRECONCEIVED OPINIONS"  WITH REGARD TO THE CASES PENDING BEFORE THEM. 
SECOND, THE COURT FOUND AS A FACT THAT LEE OPTICAL CO. DID A LARGE
BUSINESS IN ALABAMA, AND THAT IF IT WERE FORCED TO SUSPEND OPERATIONS
THE INDIVIDUAL MEMBERS OF THE BOARD, ALONG WITH OTHER PRIVATE
PRACTITIONERS OF OPTOMETRY, WOULD FALL HEIR TO THIS BUSINESS.  THUS, A
SERIOUS QUESTION OF A PERSONAL FINANCIAL STAKE IN THE MATTER IN
CONTROVERSY WAS RAISED.  FINALLY, THE DISTRICT COURT APPEARED TO REGARD
THE BOARD AS A SUSPECT ADJUDICATIVE BODY IN THE CASES THEN PENDING
BEFORE IT, BECAUSE ONLY MEMBERS OF THE ALABAMA OPTOMETRIC ASSOCIATION
COULD BE MEMBERS OF THE BOARD, AND BECAUSE THE ASSOCIATION EXCLUDED
FROM MEMBERSHIP OPTOMETRISTS SUCH AS THE PLAINTIFFS WHO WERE EMPLOYED
BY OTHER PERSONS OR ENTITIES.  THE RESULT WAS THAT 92 OF THE 192
PRACTICING OPTOMETRISTS IN ALABAMA WERE DENIED PARTICIPATION IN THE
GOVERNANCE OF THEIR OWN PROFESSION. 

THE COURT'S ULTIMATE CONCLUSION WAS "THAT TO REQUIRE THE PLAINTIFFS
TO RESORT TO THE PROTECTION OFFERED BY STATE LAW IN THESE CASES WOULD
EFFECTIVELY DEPRIVE THEM OF THEIR PROPERTY, THAT IS, THEIR RIGHT TO
PRACTICE THEIR PROFESSIONS, WITHOUT DUE PROCESS OF LAW AND THAT
IRREPARABLE INJURY WOULD FOLLOW IN THE NORMAL COURSE OF EVENTS."  /8/ 

[[HC572'(ORIGINAL DOCUMENT PAGE 572)'  331 F.SUPP., AT 126. 

APPEAL WAS TAKEN TO THIS COURT AND PROBABLE JURISDICTION NOTED ON
JUNE 26, 1972.  408 U.S. 920.  MEANWHILE, ON MARCH 30, 1972, THE
SUPREME COURT OF ALABAMA REVERSED THE JUDGMENT OF THE STATE TRIAL COURT
IN THE LEE OPTICAL CO. CASE, /9/  HOLDING THAT NOTHING IN THE ALABAMA
STATUTES PERTAINING TO OPTOMETRY EVIDENCED "A LEGISLATIVE POLICY THAT
AN OPTOMETRIST DULY QUALIFIED AND LICENSED UNDER THE LAWS OF THIS
STATE, MAY NOT BE EMPLOYED BY ANOTHER TO EXAMINE EYES FOR THE PURPOSE
OF PRESCRIBING EYEGLASSES."  /10/  288 ALA. 338, 346, 261 SO.2D 17,
24. 

IT IS AGAINST THIS PROCEDURAL BACKGROUND THAT WE TURN TO A
CONSIDERATION OF THE ISSUES PRESENTED BY THIS APPEAL. 

        I 

WE AGREE WITH THE DISTRICT COURT THAT NEITHER STATUTE NOR CASE LAW
PRECLUDED IT FROM ADJUDICATING THE ISSUES BEFORE IT AND FROM ISSUING
THE INJUNCTION OF ITS DECISION ON THE MERITS WAS CORRECT. 

TITLE 28 U.S.C. ^ 2283, THE ANTI-INJUNCTION STATUTE, PROHIBITS
FEDERAL COURTS FROM ENJOINING STATE COURT PROCEEDINGS, BUT THE STATUTE
EXCEPTS FROM ITS PROHIBITION INJUNCTION WHICH ARE "EXPRESSLY
AUTHORIZED" BY ANOTHER ACT OF CONGRESS.  /11/ 

[[HC573'(ORIGINAL DOCUMENT PAGE 573)'  LAST TERM, AFTER THE DISTRICT
COURT'S DECISION HERE, THIS COURT DETERMINED THAT ACTIONS BROUGHT UNDER
THE CIVIL RIGHTS ACT, 42 U.S.C. ^ 1983, WERE WITHIN THE "EXPRESSLY
AUTHORIZED" EXCEPTION TO THE BAN ON FEDERAL INJUNCTIONS.  /12/  MITCHUM
V. FOSTER, 407 U.S. 225 (1972). 

OUR DECISION IN MITCHUM, HOWEVER, HELD.ONLY THAT A DISTRICT COURT
WAS NOT ABSOLUTELY BARRED BY STATUTE FROM ENJOINING A STATE COURT
PROCEEDINGS WHEN CALLED UPON TO DO SO IN A ^ 1983 SUIT.  AS WE
EXPRESSLY STATED IN MITCHUM, NOTHING IN THAT DECISION PURPORTED TO CALL
INTO QUESTION THE ESTABLISHED PRINCIPLES OF EQUITY, COMITY, AND
FEDERALISM WHICH MUST, UNDER APPROPRIATE CIRCUMSTANCES, RESTRAIN A
FEDERAL COURT FROM ISSUING SUCH INJUNCTIONS.  ID., AT 243.  THESE
PRINCIPLES HAVE BEEN EMPHASIZED BY THIS COURT MANY TIMES IN THE PAST,
ALBEIT UNDER A VARIETY OF DIFFERENT RUBRICS.  FIRST OF ALL, THERE IS
THE DOCTRINE, USUALLY APPLICABLE WHEN AN INJUNCTION IS SOUGHT, THAT A
PARTY MUST EXHAUST HIS AVAILABLE ADMINISTRATIVE REMEDIES BEFORE
INVOKING THE EQUITABLE JURISDICTION OF A COURT.  SEE, E.G., PRENTIS V.
ATLANTIC COAST LINE CO., 211 U.S. 210 (1908); ILLINOIS COMMERCE COMM'N
V. THOMSON, 318 U.S. 675 (1943).  SECONDLY, THERE IS THE THE BASIC
PRINCIPLE OF FEDERALISM, RESTATED AS RECENTLY AS 1971 IN YOUNGER V.
HARRIS, 401 U.S. 37 (1971), THAT A FEDERAL COURT MAY NOT ENJOIN A
PENDING STATE CRIMINAL PROCEEDING IN THE ABSENCE OF SPECIAL
CIRCUMSTANCES SUGGESTING BAD FAITH, HARASSMENT OR IRREPARABLE INJURY
THAT IS BOTH SERIOUS AND IMMEDIATE. 

[[HC574'(ORIGINAL DOCUMENT PAGE 574)'  AND FINALLY, THERE IS THE
DOCTRINE, DEVELOPED IN OUR CASES AT LEAST SINCE RAILROAD COMM'N V.
PULLMAN CO., 312 U.S. 496 (1941), THAT WHEN CONFRONTED WITH ISSUES OF
CONSTITUTIONAL DIMENSION WHICH IMPLICATE OR DEPEND UPON UNSETTLED
QUESTIONS OF STATE LAW, A FEDERAL COURT OUGHT TO ABSTAIN AND STAY ITS
PROCEEDINGS UNTIL THOSE STATE LAW QUESTIONS ARE DEFINITIVELY RESOLVED. 

IN THE INSTANT CASE THE MATTER OF EXHAUSTION OF ADMINISTRATIVE
REMEDIES NEED NOT DETAIN US LONG.  NORMALLY WHEN A STATE HAS INSTITUTED
ADMINISTRATIVE PROCEEDINGS AGAINST AN INDIVIDUAL WHO THEN SEEKS AN
INJUNCTION IN FEDERAL COURT, THE EXHAUSTION DOCTRINE WOULD REQUIRE THE
COURT TO DELAY ACTION UNTIL THE ADMINISTRATIVE PHASE OF THE STATE
PROCEEDINGS IS TERMINATED, AT LEAST WHERE COVERAGE OR LIABILITY IS
CONTESTED AND ADMINISTRATIVE EXPERTISE, DISCRETION, OR FACTFINDING IS
INVOLVED.  /13/  BUT THIS COURT HAS EXPRESSLY HELD IN RECENT YEARS THAT
STATE ADMINISTRATIVE REMEDIES NEED NOT BE EXHAUSTED WHERE THE FEDERAL
COURT PLAINTIFF STATES AN OTHERWISE GOOD CAUSE OF ACTION UNDER 42
U.S.C. ^ 1983.  MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668 (1963);
DAMICO V. CALIFORNIA, 389 U.S. 416 (1967).  WHETHER THIS IS INVARIABLY
THE CASE EVEN WHERE, AS HERE, A LICENSE REVOCATION PROCEEDING HAS BEEN
BROUGHT BY THE STATE AND IS PENDING BEFORE ONE OF ITS OWN AGENCIES AND
WHERE THE INDIVIDUAL CHARGED IS TO BE DEPRIVED OF NOTHING UNTIL THE
COMPLETION OF THAT PROCEEDING, IS A QUESTION WE NEED NOT NOW DECIDE;
FOR THE CLEAR PURPORT OF APPELLEES' COMPLAINT WAS THAT THE STATE BOARD
OF OPTOMETRY WAS UNCONSTITUTIONALLY CONSTITUTED AND SO DID NOT PROVIDE
THEM WITH AN ADEQUATE ADMINISTRATIVE REMEDY REQUIRING EXHAUSTION. 

[[HC575'(ORIGINAL DOCUMENT PAGE 575)'  THUS, THE QUESTION OF THE
ADEQUACY OF THE ADMINISTRATIVE REMEDY, AN ISSUE WHICH UNDER FEDERAL LAW
THE DISTRICT COURT WAS REQUIRED TO DECIDE, WAS FOR ALL PRACTICAL
PURPOSES IDENTICAL WITH THE MERITS OF APPELLEES' LAWSUIT.  /14/

        II     THIS BRINGS US TO THE QUESTION OF WHETHER YOUNGER V.
HARRIS, 401 U.S. 37 (1971); SAMUELS V. MACKELL, 401 U.S. 66 (1971), OR
THE PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM FOR WHICH THOSE CASES
STAND, PRECLUDED THE DISTRICT COURT FROM ACTING, IN VIEW OF THE FACT
THAT PROCEEDINGS AGAINST APPELLEES WERE PENDING BEFORE THE ALABAMA
BOARD OF OPTOMETRY.  THOSE CASES AND PRINCIPLES WOULD, UNDER ORDINARY
CIRCUMSTANCES, FORBID EITHER A DECLARATORY JUDGMENT OR INJUNCTION WITH
RESPECT TO THE VALIDITY OR ENFORCEMENT OF A STATE STATUTE WHEN A
CRIMINAL PROCEEDING UNDER THE STATUTE HAS BEEN COMMENCED.  WHETHER A
LIKE RULE OBTAINS WHERE STATE CIVIL PROCEEDINGS ARE PENDING WAS LEFT
OPEN IN YOUNGER AND ITS COMPANION CASES.     [[HC576'(ORIGINAL DOCUMENT
PAGE 576)' 

APPELLANTS NOW INSIST, NOT ONLY THAT THE ISSUE IS POSED HERE BY THE
PENDENCY OF PROCEEDINGS BEFORE THE STATE BOARD, BUT ALSO THAT THE ISSUE
WAS ACTUALLY DECIDED FOLLOWING YOUNGER BY OUR SUMMARY AFFIRMANCE IN THE
CASE OF GEIGER V. JENKINS, 401 U.S. 985 (1971).  IN THAT CASE THE STATE
MEDICAL BOARD OF GEORGIA NOTICED HEARINGS ON CHARGES FILED AGAINST A
MEDICAL PRACTITIONER WHO IMMEDIATELY BROUGHT SUIT IN FEDERAL COURT
UNDER ^ 1983 SEEKING AN INJUNCTION ON THE GROUND THAT THE UNDERLYING
STATUTE THE MEDICAL BOARD SOUGHT TO ENFORCE WAS UNCONSTITUTIONAL.  THE
DISTRICT COURT DISMISSED THE ACTION WITHOUT REACHING THE MERITS,
HOLDING THAT THE STATE PROCEEDINGS WERE "IN THE NATURE OF CRIMINAL
PROCEEDINGS" SUFFICIENTLY SO IN ANY EVENT TO TRIGGER THE 28 U.S.C. ^
2283 BAR TO FEDERAL INTERVENTION.  316 F.SUPP.  370, 372 (ND GA.
1970).  THE DECISION WAS APPEALED TO THIS COURT AND SUMMARILY AFFIRMED
WITHOUT OPINION BUT WITH CITATION TO YOUNGER AND MACKELL. 

AS FREQUENTLY OCCURS IN THE CASE OF SUMMARY AFFIRMANCE, THE DECISION
IN GEIGER IS SOMEWHAT OPAQUE.  WE DOUBT, HOWEVER, THAT IT IS
CONTROLLING HERE.  FIRST OF ALL, IT APPEARS FROM THE JURISDICTIONAL
STATEMENT AND MOTION TO AFFIRM IN GEIGER THAT STATE CRIMINAL
PROCEEDINGS WERE PENDING AT THE TIME OF THE CHALLENGED DISMISSAL OF THE
FEDERAL CASE.  MOREOVER, IT ALSO APPEARS THAT SUBSEQUENT TO THAT
DISMISSAL THE STATE MEDICAL BOARD COMPLETED ITS PROCEEDINGS AND REVOKED
GEIGER'S LICENSE, AND THAT JUDICIAL PROCEEDINGS TO REVIEW THAT ORDER
WERE ALREADY UNDER WAY IN THE STATE COURTS.  SECONDLY, THERE IS NO
JUDICIAL FINDING HERE AS THERE WAS IN GEIGER THAT UNDER APPLICABLE
STATE LAW LICENSE REVOCATION PROCEEDINGS ARE QUASI-CRIMINAL IN NATURE;
NOR IS THE ALABAMA CASE LAW NOW CITED FOR THIS PROPOSITION PERSUASIVE. 
SEE STATE V. KEEL, 33 ALA. APP. 609, 35 SO.2D 625 (1948).  FINALLY,
ALTHOUGH IT IS APPARENT FROM GEIGER THAT ADMINISTRATIVE PROCEEDINGS
LOOKING TOWARD THE REVOCATION OF A LICENSE TO PRACTICE MEDICINE MAY IN
PROPER CIRCUMSTANCES COMMAND THE RESPECT DUE COURT PROCEEDINGS, THERE
REMAINS THE CLAIM HERE, NOT PRESENT IN GEIGER, THAT THE ADMINISTRATIVE
BODY ITSELF WAS UNCONSTITUTIONALLY CONSTITUTED, AND SO NOT ENTITLED TO
HEAR THE CHARGES FILED AGAINST THE APPELLEES. 

[[HC577'(ORIGINAL DOCUMENT PAGE 577)' 

UNLIKE THOSE SITUATIONS WHERE A FEDERAL COURT MERELY ABSTAINS FROM
DECISION ON FEDERAL QUESTIONS UNTIL THE RESOLUTION OF UNDERLYING OR
RELATED STATE LAW ISSUES /15/  --A SUBJECT WE SHALL CONSIDER SHORTLY IN
THE CONTEXT OF THE PRESENT CASE--YOUNGER V. HARRIS CONTEMPLATES THE
OUTRIGHT DISMISSAL OF THE FEDERAL SUIT, AND THE PRESENTATION OF ALL
CLAIMS, BOTH STATE AND FEDERAL, TO THE STATE COURTS.  SUCH A COURSE
NATURALLY PRESUPPOSES THE OPPORTUNITY TO RAISE AND HAVE TIMELY DECIDED
BY A COMPETENT STATE TRIBUNAL THE FEDERAL ISSUES INVOLVED.  HERE THE
PREDICATE FOR A YOUNGER V. HARRIS DISMISSAL WAS LACKING, FOR THE
APPELLEES ALLEGED, AND THE DISTRICT COURT CONCLUDED, THAT THE STATE
BOARD OF OPTOMETRY WAS INCOMPETENT BY REASONS OF BIAS TO ADJUDICATE THE
ISSUES PENDING BEFORE IT.  IF THE DISTRICT COURT'S CONCLUSION WAS
CORRECT IN THIS REGARD, IT WAS ALSO CORRECT THAT IT NEED NOT DEFER TO
THE BOARD.  NOR, IN THESE CIRCUMSTANCES, WOULD A DIFFERENT RESULT BE
REQUIRED SIMPLY BECAUSE JUDICIAL REVIEW, DE NOVO OR OTHERWISE, WOULD BE
FORTHCOMING AT THE CONCLUSION OF THE ADMINISTRATIVE PROCEEDINGS.  /16/
CF. WARD V. VILLAGE OF MONROEVILLE, 409 U.S. 57 (1972). 

[[HC578'(ORIGINAL DOCUMENT PAGE 578)'

        III 

IT IS APPROPRIATE, THEREFORE, THAT WE CONSIDER THE DISTRICT COURT'S
CONCLUSIONS THAT THE STATE BOARD OF OPTOMETRY WAS SO BIASED BY
PREJUDGMENT AND PECUNIARY INTEREST THAT IT COULD NOT CONSTITUTIONALLY
CONDUCT HEARINGS LOOKING TOWARD THE REVOCATION OF APPELLEES' LICENSES
TO PRACTICE OPTOMETRY.  WE AFFIRM THE DISTRICT COURT IN THIS RESPECT. 

THE DISTRICT COURT THOUGHT THE BOARD TO BE IMPERMISSIBLY BIASED FOR
TWO REASONS.  FIRST, THE BOARD HAD FILED A COMPLAINT IN STATE COURT
ALLEGING THAT APPELLEES HAD AIDED AND ABETTED LEE OPTICAL CO. IN THE
UNLAWFUL PRACTICE OF OPTOMETRY AND ALSO THAT THEY HAD ENGAGED IN OTHER
FORMS OF "UNPROFESSIONAL CONDUCT" WHICH IF PROVED, WOULD JUSTIFY
REVOCATION OF THEIR LICENSES.  THESE CHARGES WERE SUBSTANTIALLY SIMILAR
TO THOSE PENDING AGAINST APPELLEES BEFORE THE BOARD AND CONCERNING
WHICH THE BOARD HAD NOTICED HEARINGS FOLLOWING ITS SUCCESSFUL
PROSECUTION OF LEE OPTICAL IN THE STATE TRIAL COURT. 

SECONDLY, THE DISTRICT COURT DETERMINED THAT THE AIM OF THE BOARD
WAS TO REVOKE THE LICENSES OF ALL OPTOMETRISTS IN THE STATE WHO WERE
EMPLOYED BY BUSINESS CORPORATIONS SUCH AS LEE, AND THAT THESE
OPTOMETRISTS ACCOUNTED FOR NEARLY HALF OF ALL THE OPTOMETRISTS
PRACTICING IN ALABAMA.  BECAUSE THE BOARD OF OPTOMETRY WAS COMPOSED
SOLELY OF OPTOMETRISTS IN PRIVATE PRACTICE FOR THEIR OWN ACCOUNT, THE
DISTRICT COURT CONCLUDED THAT SUCCESS IN THE BOARD'S EFFORTS WOULD
POSSIBLY REDOUND TO THE PERSONAL BENEFIT OF MEMBERS OF THE BOARD,
SUFFICIENTLY SO THAT IN THE OPINION OF THE DISTRICT COURT THE BOARD WAS
CONSTITUTIONALLY DISQUALIFIED FROM HEARING THE CHARGES FILED AGAINST
THE APPELLEES. 

THE DISTRICT COURT APPARENTLY CONSIDERED EITHER SOURCE OF POSSIBLE
BIAS--PREJUDGMENT OF THE FACTS OR PERSONAL INTEREST--SUFFICIENT TO
DISQUALIFY THE MEMBERS OF THE BOARD. 

[[HC579'(ORIGINAL DOCUMENT PAGE 579)'  ARGUABLY, THE DISTRICT COURT
WAS RIGHT ON BOTH SCORES, BUT WE NEED REACH, AND WE AFFIRM, ONLY ON THE
LATTER GROUND OF POSSIBLE PERSONAL INTEREST.  /17/ 

IT IS SUFFICIENTLY CLEAR FROM OUR CASES THAT THOSE WITH SUBSTANTIAL
PECUNIARY INTEREST IN LEGAL PROCEEDINGS SHOULD NOT ADJUDICATE THESE
DISPUTES.  TUMEY V. OHIO, 273 U.S. 510 (1927).  AND WARD V. VILLAGE OF
MONROEVILLE, 409 U.S. 57 (1972), INDICATES THAT THE FINANCIAL STAKE
NEED NOT BE AS DIRECT OR POSTIVE AS IT APPEARED TO BE IN TUMEY.  IT HAS
ALSO COME TO BE THE PREVAILING VIEW THAT "(MOST OF THE LAW CONCERNING
DISQUALIFICATION BECAUSE OF INTEREST APPLIES WITH EQUAL FORCE TO . . .
ADMINISTRATIVE ADJUDICATORS."  K. DAVIS, ADMINISTRATIVE LAW TEXT 12.04,
P. 250 (1972), AND CASES CITED.  THE DISTRICT COURT PROCEEDED ON THIS
BASIS AND, APPLYING THE STANDARDS TAKEN FROM OUR CASES, CONCLUDED THAT
THE PECUNIARY INTEREST OF THE MEMBERS OF THE BOARD OF OPTOMETRY HAD
SUFFICIENT SUBSTANCE TO DISQUALIFY THEM, GIVEN THE CONTEXT IN WHICH
THIS CASE AROSE.  AS REMOTE AS WE ARE FROM THE LOCAL REALITIES
UNDERLYING THIS CASE AND IT BEING VERY LIKELY THAT THE DISTRICT COURT
HAS FIRMER GRASP OF THE FACTS AND OF THEIR SIGNIFICANCE TO THE ISSUES
PRESENTED, WE HAVE NO GOOD REASON ON THIS RECORD TO OVERTURN ITS
CONCLUSION AND WE AFFIRM IT.

IV 

FINALLY, WE DO NOT THINK THAT THE DOCTRINE OF ABSTENTION, AS
DEVELOPED IN OUR CASES FROM RAILROAD COMM'N V. PULLMAN CO., 312 U.S.
496 (1941), TO LAKE CARRIERS' ASSN. V. MACMULLAN, 406 U.S. 498 (1972),
REQUIRED THE DISTRICT COURT TO STAY ITS PROCEEDINGS UNTIL THE APPELLEES
HAD PRESENTED UNSETTLED QUESTIONS OF STATE LAW TO THE STATE COURTS. 

[[HC580'(ORIGINAL DOCUMENT PAGE 580)'  THOSE QUESTIONS WENT TO THE
REACH AND EFFECT OF THE STATE OPTOMETRY LAW AND CONCERNED THE MERITS OF
THE CHARGES PENDING AGAINST THE APPELLEES, AT THE HEART OF WHICH WAS
THE ISSUE WHETHER ALABAMA LAW PERMITTED LICENSED OPTOMETRISTS TO BE
EMPLOYED BY BUSINESS CORPORATIONS AND OTHERS.  THAT CENTRAL QUESTION
WAS PENDING IN THE ALABAMA SUPREME COURT IN THE LEE OPTICAL CO. CASE AT
THE TIME THE DISTRICT COURT ENTERED ITS ORDER.  AS WAS NOTED EARLIER,
HOWEVER, APPELLEES HERE HAD BEEN DISMISSED FROM THAT CASE BY THE STATE
TRIAL COURT, AND IT WAS ONLY AFTER THIS DISMISSAL, AND AFTER THE BOARD
HAD REACTIVATED ITS CHARGES AGAINST THEM, THAT APPELLEES SOUGHT RELIEF
IN FEDERAL COURT. 

ARGUABLY, THE DISTRICT COURT SHOULD HAVE AWAITED THE OUTCOME OF THE
LEE OPTICAL CO. APPEAL, A DECISION WHICH MIGHT HAVE OBVIATED THE NEED
FOR AN INJUNCTION IN THE CASE.  /18/  BUT THE BOARD WAS PRESSING ITS
CHARGES AGAINST APPELLEES WITHOUT AWAITING THAT OUTCOME AND, IN ANY
EVENT, IT APPEARS THAT AT LEAST SOME OF THE CHARGES PENDING AGAINST
APPELLEES MIGHT HAVE SURVIVED A REVERSAL OF THE STATE TRIAL COURT'S
JUDGMENT BY THE ALABAMA SUPREME COURT.  UNDER THESE CIRCUMSTANCES, IT
WAS NOT AN ABUSE OF DISCRETION FOR THE DISTRICT COURT TO PROCEED AS IT
DID. 

NEVERTHELESS, THE ALABAMA SUPREME COURT HAS SINCE RENDERED ITS
DECISION NOT ONLY IN THE LEE OPTICAL CO. CASE, BUT ALSO IN A COMPANION
CASE, HOUSE OF $8.50 EYEGLASSES V. STATE BOARD OF OPTOMETRY, 288 ALA.
349, 261 SO.2D 27 (1972).  SEE N.10, SUPRA. INDIVIDUAL OPTOMETRISTS
WERE PARTIES TO THAT LATTER CASE, AND THE ALABAMA SUPREME COURT ENTERED
JUDGMENT IN THEIR BEHALF, HOLDING THAT NOTHING IN THE STATE'S OPTOMETRY
LAW PROHIBITED A LICENSED OPTOMETRIST FROM ACCEPTING EMPLOYMENT FROM A
BUSINESS CORPORATION. 

[[HC581'(ORIGINAL DOCUMENT PAGE 581)'  WHETHER THIS JUDGMENT
SUBSTANTIALLY DEVITALIZES THE POSITION OF THE BOARD WITH RESPECT TO THE
APPELLEES HERE, OR IN ANY WAY MAKES UNNECESSARY OR REMOVES THE "EQUITY"
FROM THE INJUNCTION ENTERED BY THE DISTRICT COURT, WE ARE UNABLE TO
DETERMINE.  BUT WE DO THINK THAT CONSIDERATIONS OF EQUITY, COMITY, AND
FEDERALISM WARRANT VACATING THE JUDGMENT OF THE DISTRICT COURT AND
REMANDING THE CASE TO THAT COURT FOR RECONSIDERATIONS IN LIGHT OF THE
ALABAMA SUPREME COURT'S JUDGMENTS IN THE LEE OPTICAL CO. AND HOUSE OF
$8.50 EYEGLASSES CASES.  WE IN NO WAY INTIMATE WHETHER OR NOT THE
INJUNCTION SHOULD BE REINSTATED BY THE DISTRICT COURT. 

          IT IS SO ORDERED. 

/1/  SECTIONS 210 AND 211 OF C.11, TIT. 46, OF THE CODE OF ALABAMA,
1940, PROVIDED, PRIOR TO 1965, AS FOLLOWS: 

"^ 210.  STORE WHERE GLASSES ARE SOLD; HOW DEPARTMENT CONDUCTED.  -
NOTHING IN THIS CHAPTER SHALL BE SO CONSTRUED AS TO PREVENT ANY PERSON,
FIRM, OR CORPORATION FROM OWNING OR OPERATING A STORE OR BUSINESS
ESTABLISHMENT WHEREIN EYES ARE EXAMINED OR GLASSES FITTED; PROVIDED,
THAT SUCH STORE, ESTABLISHMENT, OR OPTOMETRIC DEPARTMENT SHALL BE IN
CHARGE OF A DULY LICENSED OPTOMETRIST, WHOSE NAME MUST APPEAR ON AND IN
ALL OPTOMETRY ADVERTISING OF WHATSOEVER NATURE DONE BY SAID PERSON,
FIRM OR CORPORATION." 

"^ 211.  FALSE OR MISLEADING STATEMENTS IN ADVERTISEMENTS OR STORES
HAVING OPTOMETRY DEPARTMENT.  --IT SHALL BE UNLAWFUL FOR ANY PERSON,
FIRM OR CORPORATION, ENGAGED IN THE PRACTICE OF OPTOMETRY IN THIS
STATE, TO PRINT OR CAUSE TO BE PRINTED, OR CIRCULATE OR CAUSE TO BE
CIRCULATED, OR PUBLISH, BY ANY MEANS WHATSOEVER, ANY ADVERTISEMENT OR
CIRCULAR IN WHICH APPEARS ANY UNTRUTHFUL, IMPOSSIBLE, OR IMPROBABLE OR
MISLEADING STATEMENT OR STATEMENTS, OR ANYTHING CALCULATED OR INTENDED
TO MISLEAD OR DECEIVE THE PUBLIC.  AND IT SHALL BE UNLAWFUL FOR ANY
INDIVIDUAL, FIRM OR CORPORATION, ENGAGED IN THE SALE OF GOODS, WARES OR
MERCHANDISE WHO MAINTAINS OR OPERATES, OR WHO ALLOWS TO BE MAINTAINED
AND OPERATED IN CONNECTION WITH SAID MERCANTILE BUSINESS AN OPTOMETRY
DEPARTMENT; OR WHO RENTS OR SUBLEASES TO ANY PERSON OR PERSONS FOR THE
PURPOSE OF ENGAGING IN THE PRACTICE OF OPTOMETRY THEREIN, ANY PORTION
OF OR SPACE IN SAID STORE, PREMISES OR ESTABLISHMENT IN WHICH SUCH
PERSON, FIRM, OR CORPORATION IS ENGAGED IN SAID MERCANTILE BUSINESS, TO
PUBLISH, OR CIRCULATE, OR PRINT OR CAUSE TO BE PRINTED, BY ANY MEANS
WHATSOEVER, ANY ADVERTISEMENT OR NOTICE OF THE OPTOMETRY DEPARTMENT
MAINTAINED, OPERATED, OR CONDUCTED IN SAID ESTABLISHMENT OR PLACE OF
BUSINESS, IN WHICH SAID ADVERTISEMENT OR NOTICE APPEAR ANY UNTRUTHFUL,
IMPROBABLE, IMPOSSIBLE, OR MISLEADING STATEMENT OR STATEMENTS, OR
ANYTHING CALCULATED TO MISLEAD OR DECEIVE THE PUBLIC." 

WERE ORIGINALLY ADOPTED IN 1919. 

/2/  SECTION 211, AS AMENDED, READS AS FOLLOWS: 

"^ 211.  FALSE OR MISLEADING STATEMENTS IN ADVERTISEMENTS OR
CIRCULARS.  --IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN THE
PRACTICE OF OPTOMETRY IN THIS STATE TO PRINT OR CAUSE TO BE PRINTED, OR
CIRCULATE OR CAUSE TO BE CIRCULATED, OR PUBLISHED, BY ANY MEANS
WHATSOEVER, ANY ADVERTISEMENT OR CIRCULAR IN WHICH APPEARS ANY
UNTRUTHFUL, IMPOSSIBLE, OR IMPROBABLE OR MISLEADING STATEMENT OR
STATEMENTS, OR ANYTHING CALCULATED OR INTENDED TO MISLEAD OR DECEIVE
THE PUBLIC." 

/3/  SECTION 206, INSOFAR AS RELEVANT HERE, PROVIDES AS FOLLOWS: 

"^ 206.  LICENSE MAY BE SUSPENDED OR REVOKED.  --A LICENSE ISSUED TO
ANY PERSON MAY BE SUSPENDED FOR A DEFINITE PERIOD OF TIME, OR REVOKED
BY THE STATE BOARD OF OPTOMETRY FOR ANY OF THE FOLLOWING REASONS; TO
WIT: . . . FOR UNPROFESSIONAL CONDUCT.  'UNPROFESSIONAL CONDUCT' SHALL
BE DEFINED TO MEAN ANY CONDUCT OF A CHARACTER LIKELY TO DECEIVE OR
DEFRAUD THE PUBLIC, LENDING HIS LICENSE BY ANY LICENSED OPTOMETRIST TO
ANY PERSON, THE EMPLOYMENT OF 'CAPPERS,'  OR 'STEERERS' TO OBTAIN
BUSINESS, 'SPLITTING' OR DIVIDING A FEE WITH ANY PERSON OR PERSONS, THE
OBTAINING OF ANY FEE OR COMPENSATION BY FRAUD OR MISREPRESENTATION,
EMPLOYING DIRECTLY OR INDIRECTLY ANY SUSPENDED OR UNLICENSED
OPTOMETRIST TO DO ANY OPTOMETRICAL WORK, BY USE OF ANY ADVERTISING,
CARRYING THE ADVERTISING OF ARTICLES NOT CONNECTED WITH THE PROFESSION,
THE EMPLOYMENT OF ANY DRUGS OR MEDICINES IN HIS PRACTICE UNLESS
AUTHORIZED TO DO SO BY THE LAWS COVERING THE PRACTICE OF MEDICINE OF
THIS STATE, OR THE DOING OR PERFORMING OF ANY ACTS IN HIS PROFESSION
DECLARED BY THE ALABAMA OPTOMETRIC ASSOCIATION TO BE UNETHICAL OR
CONTRARY TO GOOD PRACTICE."     THE SECTION ALSO PROVIDES FOR A HEARING
BEFORE THE BOARD UPON DUE NOTICE OF AN ACCUSED LICENSE HOLDER.  AT SUCH
A HEARING THE ACCUSED IS ENTITLED TO BE REPRESENTED BY COUNSEL, TO
CROSS-EXAMINE THE WITNESSES AGAINST HIM, AND TO HAVE ALL TESTIMONY
TAKEN DOWN BY A STENOGRAPHER. 

/4/  SOME OF THE CHARGES LEVELED AGAINST THE NAMED OPTOMETRISTS ARE
COVERED BY SECTIONS OF THE ALABAMA OPTOMETRY STATUTE OTHER THAN ^ 206,
E.G., "PRACTICING OPTOMETRY UNDER A FALSE NAME"  (^ 191), "UNLAWFULLY
SOLICITING THE SALE OF GLASSES" (^203), ETC. 

/5/  A PERIOD OF NEARLY FIVE AND ONE-HALF YEARS PASSED BETWEEN THE
FILING OF THE BOARD'S COMPLAINT AGAINST LEE OPTICAL, AND THE DECISION
OF THE STATE TRIAL COURT.  MUCH OF THIS DELAY APPEARS TO BE
ATTRIBUTABLE TO CERTAIN PROCEDURAL WRANGLINGS IN THE COURT CONCERNING
WHETHER THE BOARD HAD THE POWER TO BRING AN INJUNCTIVE ACTION AGAINST
THOSE IT BELIEVED TO BE PRACTICING OPTOMETRY UNLAWFULLY.  DURING THE
PENDENCY OF THE LITIGATION, THE ALABAMA LEGISLATURE PASSED A STATUTE
EXPRESSLY CONFERRING SUCH POWER, BOTH PROSPECTIVELY AND RETROACTIVELY,
ON STATE LICENSING BOARDS, AND THE SUIT APPEARS TO HAVE PROCEEDED
EXPEDITIOUSLY THEREAFTER. 

/6/  ^^ 190 - 213 OF C.11, TIT. 46.  OF THE ALABAMA CODE OF 1940. 

/7/  MORE SPECIFICALLY, THE PLAINTIFFS ATTACKED ^^ 206 AND 192 OF
THE STATUTE WHICH PROVIDE, RESPECTIVELY, THAT THE BOARD SHALL HAVE THE
POWER TO ENTERTAIN DELICENSING PROCEEDINGS AND THAT ITS MEMBERSHIP
SHALL BE LIMITED TO MEMBERS OF THE ALABAMA OPTOMETRIC ASSOCIATION. 

/8/  THE DISTRICT COURT ALSO DISMISSED, WITHOUT PREJUDICE, THE
BOARD'S COUNTERCLAIM IN THE PRESENT SUIT WHICH SOUGHT A JUDGMENT
BARRING THE PLAINTIFFS FROM PRACTICING OPTOMETRY IN ALABAMA. 

/9/  SEE LEE OPTICAL CO. OF ALABAMA V. STATE BOARD OF OPTOMETRY, 288
ALA. 338, 261 SO.2D 17, REHEARING DENIED APRIL 27, 1972. 

/10/  IN A COMPANION CASE, HOUSE OF $8.50 EYEGLASSES V. STATE BOARD
OF OPTOMETRY, 288 ALA. 349, 261 SO.2D 27 (1972), THE ALABAMA SUPREME
COURT REVERSED THE JUDGMENT OF ANOTHER LOWER STATE COURT WHICH HAD
ENJOINED A CORPORATION FROM UNLAWFULLY PRACTICING OPTOMETRY THROUGH ITS
OPTOMETRIST EMPLOYEES.  IN THAT CASE, THE INDIVIDUAL OPTOMETRISTS
INVOLVED WERE ALSO ENJOINED FROM UNLAWFULLY PRACTICING THEIR
PROFESSION.  BOTH INJUNCTIONS WERE DISSOLVED BY THE ALABAMA SUPREME
COURT. 

/11/  TITLE 28 U.S.C. ^ 2283 PROVIDES: 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

/12/  THE DISTRICT COURT HELD ^ 2283 INAPPLICABLE IN THE PRESENT
CASE BECAUSE THE PLAINTIFFS SOUGHT AN INJUNCTION AGAINST A STATE
ADMINISTRATIVE BODY AND NOT A STATE COURT.  WHETHER THIS DISTINCTION IS
TENABLE IN ALL CIRCUMSTANCES--EVEN WHERE THE ADMINISTRATIVE PROCEEDING
IS ADJUDICATORY OR QUASI-JUDICIAL IN CHARACTER--WE NEED NOT DECIDE HERE
SINCE THE PRESENT ACTION WAS BROUGHT UNDER 42 U.S.C. ^ 1983. 

/13/  THIS EXHAUSTION REQUIREMENT DOES NOT APPLY GENERALLY TO STATE
"JUDICIAL," AS OPPOSED TO "ADMINISTRATIVE," REMEDIES.  SEE BACON V.
RUTLAND R. CO., 232 U.S. 134 (1914); CITY BANK FARMERS TRUST CO. V.
SCHNADER, 291 U.S. 24 (1934).  THE DOCTRINE OF EXHAUSTION OF
ADMINISTRATIVE REMEDIES SHOULD, HOWEVER, BE KEPT DISTINCT FROM OTHER
EQUITABLE DOCTRINES SUCH AS THOSE EXEMPLIFIED IN YOUNGER V. HARRIS, 401
U.S. 37 (1971), AND RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496
(1941), WHICH DO REQUIRE A FEDERAL COURT TO DEFER IN APPROPRAITE
CIRCUMSTANCES TO STATE JUDICIAL PROCEEDINGS. 

/14/  STATE ADMINISTRATIVE REMEDIES HAVE BEEN DEEMED INADEQUATE BY
FEDERAL COURTS, AND HENCE NOT SUBJECT TO THE EXHAUSTION REQUIREMENT, ON
A VARIETY OF GROUNDS.  MOST OFTEN THIS HAS BEEN BECAUSE OF DELAY BY THE
AGENCY, SMITH V. ILLINOIS BELL TEL. CO., 270 U.S. 587 (1926), OR
BECAUSE OF SOME DOUBT AS TO WHETHER THE AGENCY WAS EMPOWERED TO GRANT
EFFECTIVE RELIEF, UNION PAC. R. CO. V. BOARD OF COMM'RS OF WELD COUNTY,
247 U.S. 282 (1918); MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668
(1963).  STATE ADMINISTRATIVE REMEDIES HAVE ALSO BEEN HELD INADEQUATE,
HOWEVER, WHERE THE STATE ADMINISTRATIVE BODY WAS FOUND TO BE BIASED OR
TO HAVE PREDETERMINED THE ISSUE BEFORE IT.  KELLY V. BOARD OF
EDUCATION, 159 F.SUPP.  272 (MD TENN. 1958). 

/15/  SEE, E.G., RAILROAD COMM'N V. PULLMAN CO., SUPRA; ENGLAND V.
LOUISIANA STATE BD. OF MEDICAL EXAM'RS, 375 U.S. 411 (1964); LAKE
CARRIERS' ASSN. V. MACMULLAN, 406 U.S. 498 (1972). 

/16/  THIS COURT WAS ASSURED AT ORAL ARGUMENT BY COUNSEL FOR BOTH
PARTIES THAT ALABAMA LAW PROVIDES FOR DE NOVO COURT REVIEW OF
DELICENSING ORDERS ISSUED BY THE BOARD.  TR. OF ORAL ARG. 5, 19. 
NONETHELESS, THE DISTRICT COURT EXPRESSLY FOUND THAT THE REVOCATION BY
THE BOARD OF APPELLEES' LICENSES TO PRACTICE THEIR PROFESSION,
"TOGETHER WITH THE ATTENDANT PUBLICITY WHICH WOULD INEVITABLE TO
ASSOCIATED THEREWITH, WOULD CAUSE IRREPARABLE DAMAGE" TO THE APPELLEES
FOR WHICH NO ADEQUATE REMEDY IS AFFORDED BY STATE LAW.  331 F.SUPP. 
122, 126. 

/17/  THE EXTENT TO WHICH AN ADMINISTRATIVE AGENCY MAY INVESTIGATE
AND ACT UPON THE MATERIAL FACTS OF A CASE AND THEN, CONSISTENT WITH DUE
PROCESS, SIT AS AN ADJUDICATIVE BODY TO DETERMINE THOSE FACTS FINALLY
HAS OCCASIONED SOME DIVERGENCE OF VIEWS AMONG FEDERAL COURTS.  COMPARE
AMOS TREAT & CO. V. SEC, 113 U.S. APP.D.C. 100, 306 F.2D 260 (1962),
AND TRANS WORLD AIRLINES V. CAB, 102 U.S. APP.D.C. 391, 254 F.2D 90
(1958), WITH PANGBURN V. CAB, 311 F.2D 349 (CA1 1962).  SEE ALSO MACK
V. FLORIDA STATE BOARD OF DENTISTRY, 296 F.SUPP.  1259 (SD FLA. 1969). 
WE HAVE NO OCCASION TO PASS UPON THIS ISSUE HERE IN VIEW OF OUR
DISPOSITION OF THE PRESENT CASE. 

/18/  SEE ASKEW V. HARGRAVE, 401 U.S. 476 (1971). 

[[DOP 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I CONCUR, ALTHOUGH IN VIEW THE THREE-JUDGE DISTRICT COURT WOULD HAVE
BEEN BETTER ADVISED, AS A MATTER OF SOUND JUDICIAL DISCRETION, TO HAVE
REFRAINED FROM ACTING UNTIL THE OUTCOME OF THE LEE OPTICAL APPEAL.  SEE
MY DISSENTING OPINION IN WISCONSIN V. CONSTANTINEAU, 400 U.S. 433, 443
(1971). 

[[DOP 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING. 

I JOIN THE OPINION OF THE COURT EXCEPT INSOFAR AS IT SUGGESTS THAT
THE QUESTION REMAINS OPEN WHETHER PLAINTIFFS IN SOME SUITS BROUGHT
UNDER 42 U.S.C. ^ 1983 MAY HAVE TO EXHAUST ADMINISTRATIVE REMEDIES. 
SEE ANTE, AT 574 - 575.  IN MY OPINION, THE INAPPLICABILITY OF THE
EXHAUSTION REQUIREMENT TO ANY SUIT BROUGHT UNDER ^ 1983 HAS BEEN FIRMLY
SETTLED BY THIS COURT'S PRIOR DECISIONS, MCNEESE V. BOARD OF EDUCATION,
373 U.S. 668, 671 - 672 (1963).  SEE ALSO HOUGHTON V. SHAFER, 392 U.S.
639 (1968); KING V. SMITH, 392 U.S. 309, 312 N.4 (1968); DAMICO V.
CALIFORNIA, 389 U.S. 416 (1967). 

RICHARD A. BILLUPS, JR., ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM
ON THE BRIEF WERE WILLIAM BAXLEY, ATTORNEY GENERAL OF ALABAMA, AND
J.G.L. MARSTON III AND DONALD GEORGE VALESKA II, ASSISTANT ATTORNEYS
GENERAL. 

HARRY COLE ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
WERE JAMES J. CARTER AND DOUGLAS E. BERGMAN. 
..END :









KERN COUNTY LAND CO. V. OCCIDENTAL PETROLEUM CORP., 411 U.S. 582 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT 

     NO. 71 - 1059.  ARGUED DECEMBER 5 - 6, 1972--DECIDED MAY 7,
1973; 450 F.2D 157, AFFIRMED. 


    DURING A TENDER OFFER CAMPAIGN, RESPONDENT BROUGHT MORE THAN

  10% OF THE OUTSTANDING STOCK OF PETITIONER'S PREDECESSOR (OLD

  KERN).  RESPONDENT WAS BLOCKED IN ITS TAKEOVER EFFORTS BY A

  DEFENSIVE MERGER BETWEEN OLD KERN AND TENNECO, IN WHICH OLD KERN

  STOCKHOLDERS WERE TO RECEIVE NEW TENNECO STOCK ON A

  SHARE-FOR-SHARE BASIS.  LESS THAN A MONTH AFTER ITS INITIAL

  TENDER OFFER, RESPONDENT THEREUPON NEGOTIATED A BINDING OPTION TO

  SELL TO TENNECO AT THE NEW DATE OVER SIX MONTHS AFTER THE TENDER

  OFFER EXPIRED ALL THE NEW TENNECO STOCK TO WHICH RESPONDENT WOULD

  BE ENTITLED WHEN THE MERGER TOOK PLACE.  SALE OF THE POST-MERGER

  STOCK YIELDED RESPONDENT A PROFIT OF SOME $19 MILLION, WHICH

  PETITIONER SOUGHT TO RECOVER BY A SUIT UNDER ^ 16 (B) OF THE

  SECURITIES EXCHANGE ACT OF 1934, PROHIBITING PROFITABLE

  SHORT-SWING SPECULATION BY STATUTORY INSIDERS.  THE DISTRICT

  COURT'S SUMMARY JUDGMENT FOR PETITIONER WAS REVERSED BY THE COURT

  OF APPEALS.  HELD:  THE TRANSACTIONS, WHICH WERE NOT BASED ON A

  STATUTORY INSIDER'S INFORMATION AND WERE NOT SUSCEPTIBLE OF THE

  SPECULATIVE ABUSE THAT ^ 16 (B) WAS DESIGNED TO PREVENT, DID NOT

  CONSTITUTE "SALES" WITHIN THE MEANING OF THE PROVISION.  PP. 591

 - 604. 

      (A) THERE WAS NOTHING IN CONNECTION WITH RESPONDENT'S TENDER

  OFFER ACQUISITION OF OLD KERN STOCK OR THE EXCHANGE THEREOF FOR

  THE TENNECO STOCK THAT GAVE RESPONDENT "INSIDE INFORMATION," AND

  ONCE THE MERGER, WHICH RESPONDENT DID NOT ENGINEER, WAS APPROVED

  THE OLD KERN-TENNECO STOCK EXCHANGE WAS INVOLUNTARY.  PP. 596 -

  600. 

(B) THE OPTION AGREEMENT WAS NOT OF ITSELF A "SALE"; THE OPTION

  WAS GROUNDED ON THE MUTUAL ADVANTAGES TO RESPONDENT AS A MINORITY

  STOCKHOLDER THAT WANTED TO TERMINATE AN INVESTMENT IT HAD NOT

  CHOSEN TO MAKE AND TENNECO WHOSE MANAGEMENT DID NOT WANT A

  POTENTIALLY TROUBLESOME MINORITY STOCKHOLDER; AND THE OPTION WAS

  NOT A SOURCE OF POTENTIAL SPECULATIVE ABUSE, SINCE RESPONDENT HAD

  NO INSIDE INFORMATION ABOUT TENNECO OR ITS NEW STOCK.  PP. 601 -

  604. 

[[HC583'(ORIGINAL DOCUMENT PAGE 583)' 

     WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,

  C.J., AND MARSHALL, BLACKMUN, POWELL, REHNQUIST, JJ., JOINED. 

 DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND

  STEWART, JJ., JOINED, POST, P. 605. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

15 U.S.C. ^ 78P (B), /1/  PROVIDES THAT OFFICERS, DIRECTORS, AND
HOLDERS OF MORE THAN 10% OF THE LISTED STOCK OF ANY COMPANY SHALL BE
LIABLE TO THE COMPANY FOR ANY PROFITS REALIZED FROM ANY PURCHASE AND
SALE OR SALE AND PURCHASE OF SUCH STOCK OCCURRING WITHIN A PERIOD OF
SIX MONTHS. 

[[HC584'(ORIGINAL DOCUMENT PAGE 584)'  UNQUESTIONABLY, ONE OR MORE
STATUTORY PURCHASES OCCUR WHEN ONE COMPANY, SEEKING TO GAIN CONTROL OF
ANOTHER, ACQUIRES MORE THAN 10% OF THE STOCK OF THE LATTER THROUGH A
TENDER OFFER MADE TO ITS SHAREHOLDERS.  BUT IS IT A ^ 16 (B) "SALE"
WHEN THE TARGET OF THE TENDER OFFER DEFENDS ITSELF BY MERGING INTO A
THIRD COMPANY AND THE TENDER OFFEROR THEN EXCHANGES HIS STOCK FOR THE
STOCK OF THE SURVIVING COMPANY AND ALSO GRANTS AN OPTION TO PURCHASE
THE LATTER STOCK THAT IS NOT EXERCISABLE WITHIN THE STATUTORY SIX-MONTH
PERIOD?  THIS IS THE QUESTION BEFORE US IN THIS CASE. 

        I 

ON MAY 8, 1967, AFTER UNSUCCESSFULLY SEEKING TO MERGE WITH KERN
COUNTY LAND CO. (OLD KERN), /2/  OCCIDENTAL PETROLEUM CORP.
(OCCIDENTAL) /3/  ANNOUNCED AN OFFER, TO EXPIRE ON JUNE 8, 1967, TO
PURCHASE ON A FIRST-COME FIRST-SERVED BASIS 500,000 SHARES OF OLD KERN
COMMON STOCK /4/  AT A PRICE OF $83.50 PER SHARE PLUS A BROKERAGE
COMMISSION OF $1.50 PER SHARE.  /5/ 

[[HC585'(ORIGINAL DOCUMENT PAGE 585)'  BY MAY 10, 1967, 500,000
SHARES, MORE THAN 10% OF THE OUTSTANDING SHARES OF OLD KERN, /6/  HAD
BEEN TENDERED.  ON MAY 11, OCCIDENTAL EXTENDED ITS OFFER TO ENCOMPASS
AN ADDITIONAL 500,000 SHARES.  AT THE CLOSE OF THE TENDER OFFER, ON
JUNE 8, 1967, OCCIDENTAL OWNED 887,549 SHARES OF OLD KERN.  /7/ 

IMMEDIATELY UPON THE ANNOUNCEMENT OF OCCIDENTAL'S TENDER OFFER, THE
OLD KERN MANAGEMENT UNDERTOOK TO FRUSTRATE OCCIDENTAL'S TAKEOVER
ATTEMPT.  A MANAGEMENT LETTER TO ALL STOCKHOLDERS CAUTIONED AGAINST
TENDER AND INDICATED THAT OCCIDENTAL'S OFFER MIGHT NOT BE THE BEST
AVAILABLE, SINCE THE MANAGEMENT WAS ENGAGED IN MERGER DISCUSSIONS WITH
SEVERAL COMPANIES.  WHEN OCCIDENTAL EXTENDED ITS TENDER OFFER, THE
PRESIDENT OF OLD KERN SENT A TELEGRAM TO ALL STOCKHOLDERS AGAIN
ADVISING AGAINST TENDER.  IN ADDITION, OLD KERN UNDERTOOK MERGER
DISCUSSIONS WITH TENNECO, INC. (TENNECO), /8/  AND, ON MAY 19, 1967,
THE BOARD OF DIRECTORS OF OLD KERN ANNOUNCED THAT IT HAD APPROVED A
MERGER PROPOSAL ADVANCED BY TENNECO.  /9/ 

[[HC586'(ORIGINAL DOCUMENT PAGE 586)'  UNDER THE TERMS OF THE
MERGER, TENNECO WOULD ACQUIRE THE ASSETS, PROPERTY, AND GOODWILL OF OLD
KERN, SUBJECT TO ITS LIABILITIES, THROUGH "KERN COUNTY LAND COMPANY"
(NEW KERN), /10/  A NEW CORPORATION TO BE FORMED BY TENNECO TO RECEIVE
THE ASSETS AND CARRY ON THE BUSINESS OF OLD KERN.  THE SHAREHOLDERS OF
OLD KERN WOULD RECEIVE A SHARE OF TENNECO CUMULATIVE CONVERTIBLE
PREFERENCE STOCK WHICH THEY OWNED.  ON THE SAME DAY, MAY 19,
OCCIDENTAL, IN A QUARTERLY REPORT TO STOCKHOLDERS, APPRAISED THE VALUE
OF THE NEW TENNECO STOCK AT $105 PER SHARE.  /11/ 

[[HC587'(ORIGINAL DOCUMENT PAGE 587)' 

OCCIDENTAL, SEEING ITS TENDER OFFER AND TAKEOVER ATTEMPT BEING
BLOCKED BY THE OLD KERN-TENNECO "DEFENSIVE" MERGER, COUNTERED ON MAY 25
AND 31 WITH TWO MANDAMUS ACTIONS IN THE CALIFORNIA COURTS SEEKING TO
OBTAIN EXTENSIVE INSPECTION OF OLD KERN BOOKS AND RECORDS.  /12/
REALIZING THAT, IF THE OLD KERN-TENNECO MERGER WERE APPROVED AND
SUCCESSFULLY CLOSED, OCCIDENTAL WOULD HAVE TO EXCHANGE ITS OLD KERN
SHARES FOR TENNECO STOCK AND WOULD BE LOCKED INTO A MINORITY POSITION
IN TENNECO, OCCIDENTAL TOOK OTHER STEPS TO PROTECT ITSELF.  BETWEEN MAY
30 AND JUNE 2, IT NEGOTIATED AN ARRANGEMENT WITH TENNECO WHEREBY
OCCIDENTAL GRANTED TENNECO CORP., A SUBSIDIARY OF TENNECO, AN OPTION TO
PURCHASE AT $105 PER SHARE ALL OF THE TENNECO PREFERENCE STOCK TO WHICH
OCCIDENTAL WOULD BE ENTITLED IN EXCHANGE FOR ITS OLD KERN STOCK WHEN
AND IF THE OLD KERN-TENNECO MERGER WAS CLOSED.  /13/  THE PREMIUM TO
SECURE THE OPTION, AT $10 PER SHARE, TOTALED $8,866,230 AND WAS TO BE
PAID IMMEDIATELY UPON THE SIGNING OF THE OPTION AGREEMENT.  /14/  IF
THE OPTION WERE EXERCISED, THE PREMIUM WAS TO BE APPLIED TO THE
PURCHASE PRICE.  BY THE TERMS OF THE OPTION AGREEMENT, THE OPTION COULD
NOT BE EXERCISED PRIOR TO DECEMBER 9, 1967, A DATE SIX MONTHS AND ONE
DAY AFTER EXPIRATION OF OCCIDENTAL'S TENDER OFFER. 

[[HC588'(ORIGINAL DOCUMENT PAGE 588)'  ON JUNE 2, 1967, WITHIN SIX
MONTHS OF THE ACQUISITION BY OCCIDENTAL OF MORE THAN 10% OWNERSHIP OF
OLD KERN, OCCIDENTAL AND TENNECO CORP. EXECUTED THE OPTION.  /15/  SOON
THEREAFTER, OCCIDENTAL ANNOUNCED THAT IT WOULD NOT OPPOSE THE OLD KERN
TENNECO MERGER AND DISMISSED ITS STATE COURT SUITS AGAINST OLD KERN. 
/16/ 

THE OLD KERN-TENNECO MERGER PLAN WAS PRESENTED TO AND APPROVED BY
OLD KERN SHAREHOLDERS AT THEIR MEETING ON JULY 17, 1967.  OCCIDENTAL
REFRAINED FROM VOTING ITS OLD KERN SHARES, BUT IN A LETTER READ AT THE
MEETING OCCIDENTAL STATED THAT IT HAD DETERMINED PRIOR TO JUNE 2 NOT TO
OPPOSE THE MERGER AND THAT IT DID NOT CONSIDER THE PLAN UNFAIR OR
INEQUITABLE.  /17/  INDEED, OCCIDENTAL INDICATED THAT, HAD IT BEEN
VOTING, IT WOULD HAVE VOTED IN FAVOR OF THE MERGER. 

MEANWHILE, THE SECURITIES AND EXCHANGE COMMISSION HAD REFUSED
OCCIDENTAL'S REQUEST TO EXEMPT FROM POSSIBLE ^ 16 (B) LIABILITY
OCCIDENTAL'S EXCHANGE OF ITS OLD KERN STOCK FOR THE TENNECO PREFERENCE
SHARES THAT WOULD TAKE PLACE WHEN AND IF THE MERGER TRANSACTION WERE
CLOSED. 

[[HC589'(ORIGINAL DOCUMENT PAGE 589)'  VARIOUS OLD KERN
STOCKHOLDERS, WITH OCCIDENTAL'S INTERESTS IN MIND, THEREUPON SOUGHT TO
DELAY CONSUMMATION OF THE MERGER BY INSTITUTING VARIOUS LAWSUITS IN THE
STATE AND FEDERAL COURTS.  /18/  THESE ATTEMPTS WERE UNSUCCESSFUL,
HOWEVER, AND PREPARATIONS FOR THE MERGER NEARED COMPLETION WITH AN
INTERNAL REVENUE SERVICE RULING THAT CONSUMMATION OF THE PLAN WOULD
RESULT IN A TAX-FREE EXCHANGE WITH NO TAXABLE GAIN OR LOSS TO OLD KERN
SHAREHOLDERS, AND WITH THE ISSUANCE OF THE NECESSARY APPROVAL OF THE
MERGER CLOSING BY THE CALIFORNIA COMMISSIONER OF CORPORATIONS. 

THE OLD KERN-TENNECO MERGER TRANSACTION WAS CLOSED ON AUGUST 30. 
OLD KERN SHAREHOLDERS THEREUPON BECAME IRREVOCABLY ENTITLED TO RECEIVE
TENNECO PREFERENCE STOCK, SHARE FOR SHARE IN EXCHANGE FOR THEIR OLD
KERN STOCK.  OLD KERN WAS DISSOLVED AND ALL OF ITS ASSETS, INCLUDING
"ALL CLAIMS, DEMANDS, RIGHTS AND CHOSES IN ACTION ACCRUED OR TO ACCRUE
UNDER AND BY VIRTUE OF THE SECURITIES EXCHANGE ACT OF 1934 . . .," WERE
TRANSFERRED TO NEW KERN. 

THE OPTION GRANTED BY OCCIDENTAL ON JUNE 2, 1967, WAS EXERCISED ON
DECEMBER 11, 1967.  OCCIDENTAL, NOT HAVING PREVIOUSLY AVAILED ITSELF OF
ITS RIGHT, EXCHANGED CERTIFICATES REPRESENTING 887,549 SHARES OF OLD
KERN STOCK FOR A CERTIFICATE REPRESENTING A LIKE NUMBER OF SHARES OF
TENNECO PREFERENCE STOCK.  THE CERTIFICATE WAS THEN ENDORSED OVER TO
THE OPTIONEE-PURCHASER, AND IN RETURN $84,229,185 WAS CREDITED TO
OCCIDENTAL'S ACCOUNTS AT VARIOUS BANKS.  ADDING TO THIS AMOUNT THE
$8,886,230 PREMIUM PAID IN JUNE, OCCIDENTAL RECEIVED $93,905,415 FOR
ITS OLD KERN STOCK (INCLUDING THE 1,900 SHARES ACQUIRED PRIOR TO
ISSUANCE OF ITS TENDER OFFER).  IN ADDITION, OCCIDENTAL RECEIVED
DIVIDENDS TOTALING $1,793,439.22 OCCIDENTAL'S TOTAL PROFIT WAS
$19,506,419.22 ON THE SHARES OBTAINED THROUGH ITS TENDER OFFER. 

[[HC590'(ORIGINAL DOCUMENT PAGE 590)' 

ON OCTOBER 17, 1967, NEW KERN INSTITUTED A SUIT UNDER ^ 16 (B)
AGAINST OCCIDENTAL TO RECOVER THE PROFITS WHICH OCCIDENTAL HAD REALIZED
AS A RESULT OF ITS DEALINGS IN OLD KERN STOCK.  THE COMPLAIN ALLEGED
THAT THE EXECUTION OF THE OCCIDENTAL-TENNECO OPTION ON JUNE 2, 1967,
AND THE EXCHANGE OF OLD KERN SHARES FOR SHARES OF TENNECO TO WHICH
OCCIDENTAL BECAME ENTITLED PURSUANT TO THE MERGER CLOSED ON AUGUST 30,
1967, WERE BOTH "SALES" WITHIN THE COVERAGE OF ^ 16 (B).  SINCE BOTH
ACTS TOOK PLACE WITHIN SIX MONTHS OF THE DATE ON WHICH OCCIDENTAL
BECAME THE OWNER OF MORE THAN 10% OF THE STOCK OF OLD KERN, NEW KERN
ASSERTED THAT ^ 16 (B) REQUIRED SURRENDER OF THE PROFITS REALIZED BY
OCCIDENTAL.  /19/  NEW KERN EVENTUALLY MOVED FOR SUMMARY JUDGMENT, AND,
ON DECEMBER 27, 1970, THE DISTRICT COURT GRANTED SUMMARY JUDGMENT IN
FAVOR OF NEW KERN.  ABRAMS V. OCCIDENTAL PETROLEUM CORP., 323 F.SUPP. 
570 (SDNY 1970).  THE DISTRICT COURT HELD THAT THE EXECUTION OF THE
OPTION ON JUNE 2, 1967, AND THE EXCHANGE OF OLD KERN SHARES FOR SHARES
OF TENNECO ON AUGUST 30, 1967, WERE "SALES" UNDER ^ 16 (B).  THE COURT
ORDERED OCCIDENTAL TO DISGORGE ITS PROFITS PLUS INTEREST.  IN A
SUPPLEMENTAL OPINION, OCCIDENTAL WAS ALSO ORDERED TO REFUND THE
DIVIDENDS WHICH IT HAD RECEIVED PLUS INTEREST. 

ON APPEAL, THE COURT OF APPEALS REVERSED AND ORDERED SUMMARY
JUDGMENT ENTERED IN FAVOR OF OCCIDENTAL.  ABRAMS V. OCCIDENTAL
PETROLEUM CORP., 450 F.2D 157 (CA2 1971).  THE COURT HELD THAT NEITHER
THE OPTION NOR THE EXCHANGE CONSTITUTED A "SALE" WITHIN THE PURVIEW OF
^ 16 (B).  /20/  WE GRANTED CERTIORARI.  405 U.S. 1064 (1972).  WE
AFFIRM. 

[[HC591'(ORIGINAL DOCUMENT PAGE 591)'

        II 

MUST SURRENDER TO THE ISSUING CORPORATION "ANY PROFIT REALIZED BY HIM
FROM ANY PURCHASE AND SALE, OR ANY SALE AND PURCHASE, OF ANY EQUITY
SECURITY /22/  OF SUCH ISSUER . . . WITHIN ANY PERIOD OF LESS THAN SIX
MONTHS."  AS SPECIFIED IN ITS INTRODUCTORY CLAUSE, ^ 16 (B) WAS ENACTED
"(FOR THE PURPOSE OF PREVENTING THE UNFAIR USE OF INFORMATION WHICH MAY
HAVE BEEN OBTAINED BY (A STATUTORY INSIDER) . . . BY REASON OF HIS
RELATIONSHIP TO THE ISSUER."  CONGRESS RECOGNIZED THAT SHORT-SWING
SPECULATION BY STOCKHOLDERS WITH ADVANCE, INSIDE INFORMATION WOULD
THREATEN THE GOAL OF THE SECURITIES EXCHANGE ACT TO "INSURE THE
MAINTENANCE OF FAIR AND HONEST MARKETS." 

[[HC592'(ORIGINAL DOCUMENT PAGE 592)' 15 U.S.C. ^ 78B.  INSIDERS
COULD EXPLOIT INFORMATION NOT GENERALLY AVAILABLE TO OTHERS TO SECURE
QUICK PROFITS.  AS WE HAVE NOTED, "THE ONLY METHOD CONGRESS DEEMED
EFFECTIVE TO CURB THE EVILS OF INSIDER TRADING WAS FLAT RULE TAKING THE
PROFITS OUT OF A CLASS OF TRANSACTIONS IN WHICH THE POSSIBILITY OF
ABUSE WAS BELIEVED TO BE INTOLERABLY GREAT."  RELIANCE ELECTRIC CO. V.
EMERSON ELECTRIC CO., 404 U.S. 418, 422 (1972).  AS STATED IN THE
REPORT OF THE SENATE COMMITTEE, THE BILL AIMED AT PROTECTING THE PUBLIC
"BY PREVENTING DIRECTORS, OFFICERS, AND PRINCIPAL STOCKHOLDERS OF A
CORPORATION . . . FROM SPECULATING IN THE STOCK ON THE BASIS OF
INFORMATION NOT AVAILABLE TO OTHERS."  S.REP.  NO. 793, 73D CONG., 2D
SESS., 9 (1934).  /23/

[[HC593'(ORIGINAL DOCUMENT PAGE 593)' 

ALTHOUGH TRADITIONAL CASH-FOR-STOCK TRANSACTIONS THAT RESULT IN A
PURCHASE AND SALE OR A SALE AND PURCHASE WITHIN THE SIX-MONTH,
STATUTORY PERIOD ARE CLEARLY WITHIN THE PURVIEW OF ^ 16 (B), THE COURTS
HAVE WRESTLED WITH THE QUESTION OF INCLUSION OR EXCLUSION OF CERTAIN
"UNORTHODOX" TRANSACTIONS.  /24/  THE STATUTORY DEFINITIONS OF
"PURCHASE" AND "SALE" ARE BROAD AND, AT LEAST ARGUABLY, REACH MANY
TRANSACTIONS NOT ORDINARILY DEEMED A SALE OR PURCHASE.  /25/ 

[[HC594'(ORIGINAL DOCUMENT PAGE 594)'  IN DECIDING WHETHER
BORDERLINE TRANSACTIONS ARE WITHIN THE REACH OF THE STATUTE, THE COURTS
HAVE COME TO INQUIRE WHETHER THE TRANSACTION MAY SERVE AS A VEHICLE FOR
THE EVIL WHICH CONGRESS SOUGHT TO PREVENT--THE INSIDE INFORMATION /26/
--THEREBY ENDEAVORING TO IMPLEMENT CONGRESSIONAL OBJECTIVES WITHOUT
EXTENDING THE REACH OF THE STATUTE BEYOND ITS INTENDED LIMITS. 

[[HC595'(ORIGINAL DOCUMENT PAGE 595)'  THE STATUTE REQUIRES THE
INSIDE, SHORT-SWING TRADER TO DISGORGE ALL PROFITS REALIZED ON ALL
"PURCHASES" AND "SALES" WITHIN THE SPECIFIED TIME PERIOD, WITHOUT PROOF
OF ACTUAL ABUSE OF INSIDER INFORMATION, AND WITHOUT PROOF OF INTENT TO
PROFIT ON THE BASIS OF SUCH INFORMATION.  UNDER THESE STRICT TERMS, THE
PREVAILING VIEW IS TO APPLY THE STATUTE ONLY WHEN ITS APPLICATION WOULD
SERVE ITS GOALS.  "(WHERE ALTERNATIVE CONSTRUCTIONS OF THE TERMS OF ^
16 (B) ARE POSSIBLE, THOSE TERMS ARE TO BE GIVEN THE CONSTRUCTION THAT
BEST SERVES THE CONGRESSIONAL PURPOSE OF CURBING SHORT-SWING
SPECULATION BY CORPORATE INSIDERS."  RELIANCE ELECTRIC CO. V. EMERSON
ELECTRIC CO., 404 U.S., AT 424.  SEE BLAU V. LAMB, 363 F.2D 507 (CA2
1966), CERT. DENIED, 385 U.S. 1002 (1967).  THUS, "(IN INTERPRETING THE
TERMS 'PURCHASE' AND 'SALE,' COURTS HAVE PROPERLY ASKED WHETHER THE
PARTICULAR TYPE OF TRANSACTION INVOLVED IS ONE THAT GIVES RISE TO
SPECULATIVE ABUSE."  RELIANCE ELECTRIC CO. V. EMERSON ELECTRIC CO.,
SUPRA, AT 424 N.4.  /27/ 

IN THE PRESENT CASE, IT IS UNDISPUTED THAT OCCIDENTAL BECAME A
"BENEFICIAL OWNER" WITHIN THE TERMS OF ^ 16 (B) WHEN, PURSUANT TO ITS
TENDER OFFER, IT "PURCHASED" MORE THAN 10% OF THE OUTSTANDING SHARES OF
OLD KERN.  WE MUST DECIDE, HOWEVER, WHETHER A "SALE" WITHIN THE AMBIT
OF THE STATUTE TOOK PLACE EITHER WHEN OCCIDENTAL BECAME IRREVOCABLY
BOUND TO EXCHANGE ITS SHARES OF OLD KERN FOR SHARES OF TENNECO PURSUANT
TO THE TERMS OF THE MERGER AGREEMENT BETWEEN OLD KERN AND TENNECO OR
WHEN OCCIDENTAL GAVE AN OPTION TO TENNECO TO PURCHASE FROM OCCIDENTAL
THE TENNECO SHARES SO ACQUIRED.  /28/     [[HC596'(ORIGINAL DOCUMENT
PAGE 596)'

        III 

ON AUGUST 30, 1967, THE OLD KERN-TENNECO MERGER AGREEMENT WAS SIGNED,
AND OCCIDENTAL BECAME IRREVOCABLY ENTITLED TO EXCHANGE ITS SHARES OF
OLD KERN STOCK FOR SHARES OF TENNECO PREFERENCE STOCK.  CONCEDEDLY, THE
TRANSACTION MUST BE VIEWED AS THOUGH OCCIDENTAL HAD MADE THE EXCHANGE
ON THAT DAY.  BUT, EVEN SO, DID THE EXCHANGE INVOLVE A "SALE" OF OLD
KERN SHARES WITHIN THE MEANING OF ^ 16 (B)?  WE AGREE WITH THE COURT OF
APPEALS THAT IT DID NOT, FOR WE THINK IT TOTALLY UNREALISTIC TO ASSUME
OR INFER FROM THE FACTS BEFORE US THAT OCCIDENTAL EITHER HAD OR WAS
LIKELY TO HAVE ACCESS TO INSIDE INFORMATION, BY REASON OF ITS OWNERSHIP
OF MORE THAN 10% OF THE OUTSTANDING SHARES OF OLD KERN, SO AS TO AFFORD
IT AN OPPORTUNITY TO REAP SPECULATIVE, SHORT-SWING PROFITS FROM ITS
DISPOSITION WITHIN SIX MONTHS OF ITS TENDER OFFER PURCHASES. 

IT CANNOT BE CONTENDED THAT OCCIDENTAL WAS AN INSIDER WHEN, ON MAY
8, 1967, IT MADE AN IRREVOCABLE OFFER TO PURCHASE 500,000 SHARES OF OLD
KERN STOCK AT A PRICE SUBSTANTIALLY ABOVE MARKET.  AT THAT TIME, IT
OWNED ONLY 1,900 SHARES OF OLD KERN STOCK, FAR FEWER THAN THE 432,000
SHARES NEEDED TO CONSTITUTE THE 10% OWNERSHIP REQUIRED BY THE STATUTE. 
THERE IS NO BASIS FOR FINDING THAT, AT THE TIME THE TENDER OFFER WAS
COMMENCED, OCCIDENTAL ENJOYED AN INSIDER'S OPPORTUNITY TO ACQUIRE
INFORMATION ABOUT OLD KERN'S AFFAIRS. 

[[HC597'(ORIGINAL DOCUMENT PAGE 597)' 

IT IS ALSO WIDE OF THE MARK TO ASSERT THAT OCCIDENTAL, AS A
SOPHISTICATED CORPORATION KNOWLEDGEABLE IN MATTERS OF CORPORATE AFFAIRS
AND FINANCE, KNEW THAT ITS TENDER OFFER WOULD EITHER SUCCEED OR WOULD
BE MET WITH A "DEFENSIVE MERGER."  IF ITS TAKEOVER EFFORTS FAILED, IT
IS ARGUED, OCCIDENTAL KNEW IT COULD SELL ITS STOCK TO THE TARGET
COMPANY'S MERGER PARTNER AT A SUBSTANTIAL PROFIT.  CALCULATIONS OF THIS
SORT, HOWEVER, WHETHER SPECULATIVE OR NOT AND WHETHER FAIR OR UNFAIR TO
OTHER STOCKHOLDERS OR TO OLD KERN, DO NOT REPRESENT THE KIND OF
SPECULATIVE ABUSE AT WHICH THE STATUTE IS AIMED, FOR THEY COULD NOT
HAVE BEEN BASED ON INSIDE INFORMATION OBTAINED FROM SUBSTANTIAL
STOCKHOLDINGS THAT DID NOT YET EXIST.  ACCEPTING BOTH THAT OCCIDENTAL
MADE THIS VERY PREDICTION AND THAT IT WOULD RECURRINGLY BE AN ACCURATE
FORECAST IN TENDER-OFFER SITUATIONS, /29/  WE NEVERTHELESS FAIL TO
PERCEIVE HOW THE FRUITION OF SUCH ANTICIPATED EVENTS WOULD REQUIRE, OR
IN ANY WAY DEPEND UPON, THE RECEIPT AND USE OF INSIDE INFORMATION.  IF
THERE ARE EVILS TO BE REDRESSED BY WAY OF DETERRING THOSE WHO WOULD
MAKE TENDER OFFERS, ^ 16 (B) DOES NOT APPEAR TO US TO HAVE BEEN
DESIGNED FOR THIS TASK. 

[[HC598'(ORIGINAL DOCUMENT PAGE 598)' 

BY MAY 10, 1967, OCCIDENTAL HAD ACQUIRED MORE THAN 10% OF THE
OUTSTANDING SHARES OF OLD KERN.  IT WAS THUS A STATUTORY INSIDER WHEN,
ON MAY 11, IT EXTENDED ITS TENDER OFFER TO INCLUDE ANOTHER 500,000
SHARES.  WE ARE QUITE UNCONVINCED, HOWEVER, THAT THE SITUATION HAD
CHANGED MATERIALLY WITH RESPECT TO THE POSSIBILITIES OF SPECULATIVE
ABUSE OF INSIDE INFORMATION BY OCCIDENTAL.  PERHAPS OCCIDENTAL
ANTICIPATED THAT EXTENDING ITS OFFER WOULD INCREASE THE LIKELIHOOD OF
THE ULTIMATE SUCCESS OF ITS TAKEOVER ATTEMPT OR THE OCCURRENCE OF A
DEFENSIVE MERGER.  BUT, AGAIN, THE EXPECTATION OF SUCH BENEFITS WAS
UNRELATED TO THE USE OF INFORMATION UNAVAILABLE TO OTHER STOCKHOLDERS
OR MEMBERS OF THE PUBLIC WITH SUFFICIENT FUNDS AND THE INTENTION TO
MAKE THE PURCHASES OCCIDENTAL HAD OFFERED TO MAKE BEFORE JUNE 8, 1967. 

THE POSSIBILITY THAT OCCIDENTAL HAD, OR HAD THE OPPORTUNITY TO HAVE,
ANY CONFIDENTIAL INFORMATION ABOUT OLD KERN BEFORE OR AFTER MAY 11,
1967, SEEMS EXTREMELY REMOTE.  OCCIDENTAL WAS, AFTER ALL, A TENDER
OFFEROR, THREATENING TO SEIZE CONTROL OF OLD KERN, DISPLACE ITS
MANAGEMENT, AND USE THE COMPANY FOR ITS OWN ENDS.  THE OLD KERN
MANAGEMENT VIGOROUSLY AND IMMEDIATELY OPPOSED OCCIDENTAL'S EFFORTS. 
TWICE IT COMMUNICATED WITH ITS STOCKHOLDERS, ADVISING AGAINST
ACCEPTANCE OF OCCIDENTAL'S OFFER AND INDICATING PRIOR TO MAY 11 AND
PRIOR TO OCCIDENTAL'S EXTENSION OF ITS OFFER, THAT THERE WAS A
POSSIBILITY OF AN IMMINENT MERGER AND A MORE PROFITABLE EXCHANGE.  OLD
KERN'S MANAGEMENT REFUSED TO DISCUSS WITH OCCIDENTAL OFFICIALS THE
SUBJECT OF AN OLD KERN-OCCIDENTAL MERGER.  INSTEAD, IT UNDERTOOK
NEGOTIATIONS WITH TENNECO AND FORTHWITH CONCLUDED AN AGREEMENT,
ANNOUNCING THE MERGER TERMS ON MAY 19.  REQUESTS BY OCCIDENTAL FOR
INSPECTION OF OLD KERN RECORDS WERE SUFFICIENTLY FRUSTRATED BY OLD
KERN'S MANAGEMENT TO FORCE OCCIDENTAL TO LITIGATE TO SECURE THE
INFORMATION IT DESIRED. 

[[HC599'(ORIGINAL DOCUMENT PAGE 599)' 

THERE IS, THEREFORE, NOTHING IN CONNECTION WITH OCCIDENTAL'S
ACQUISITION OF OLD KERN STOCK PURSUANT TO ITS TENDER OFFER TO INDICATE
EITHER THE POSSIBILITY OF INSIDE INFORMATION BEING AVAILABLE TO
OCCIDENTAL BY VIRTUE OF ITS STOCK OWNERSHIP OR THE POTENTIAL FOR
SPECULATIVE ABUSE OF SUCH INSIDE INFORMATION BY OCCIDENTAL.  MUCH THE
SAME CAN BE SAID OF THE EVENTS LEADING TO THE EXCHANGE OF OCCIDENTAL'S
OLD KERN STOCK FOR TENNECO PREFERRED, WHICH IS ONE OF THE TRANSACTIONS
THAT IS SOUGHT TO BE CLASSIFIED A "SALE" UNDER ^ 16 (B).  THE CRITICAL
FACT IS THAT THE EXCHANGE TOOK PLACE AND WAS REQUIRED PURSUANT TO A
MERGER BETWEEN OLD KERN AND TENNECO.  THAT MERGER WAS NOT ENGINEERED BY
OCCIDENTAL BUT WAS SOUGHT BY OLD KERN TO FRUSTRATE THE ATTEMPTS OF
OCCIDENTAL TO GAIN CONTROL OF OLD KERN.  OCCIDENTAL OBVIOUSLY DID NOT
PARTICIPATE IN OR CONTROL THE NEGOTIATIONS OR THE AGREEMENT BETWEEN OLD
KERN AND TENNECO.  CF. NEWMARK V. RKO GENERAL, 425 F.2D 348 (CA2),
CERT. DENIED, 400 U.S. 854 (1970); PARK & TILFORD V. SCHULTE, 160 F.2D
984 (CA2), CERT. DENIED, 332 U.S. 761 (1947).  ONCE AGREEMENT BETWEEN
THOSE TWO COMPANIES CRYSTALIZED, THE COURSE OF SUBSEQUENT EVENTS WAS
OUT OF OCCIDENTAL'S HANDS.  OLD KERN NEEDED THE CONSENT OF ITS
STOCKHOLDERS, BUT AS IT TURNED OUT, OLD KERN'S MANAGEMENT HAD THE
NECESSARY VOTES WITHOUT THE AFFIRMATIVE VOTE OF OCCIDENTAL.  THE MERGER
AGREEMENT WAS APPROVED BY A MAJORITY OF THE STOCKHOLDERS OF OLD KERN,
EXCLUDING THE VOTES TO WHICH OCCIDENTAL WAS ENTITLED BY VIRTUE OF ITS
OWNERSHIP OF OLD KERN SHARES.  SEE GENERALLY FERRAIOLO V. NEWMAN, 259
F.2D 342 (CA6 1958), CERT. DENIED, 359 U.S. 927 (1959); ROBERTS V.
EATON, 212 F.2D 82 (CA2 1954).  OCCIDENTAL, ALTHOUGH REGISTERING ITS
OPINION THAT THE MERGER WOULD BE BENEFICIAL TO OLD KERN SHAREHOLDERS,
DID NOT IN FACT VOTE AT THE STOCKHOLDERS' MEETING AT WHICH MERGER
APPROVAL WAS OBTAINED. 

[[HC600'(ORIGINAL DOCUMENT PAGE 600)'  UNDER CALIFORNIA LAW, ITS
ABSTENTION WAS TANTAMOUNT TO A VOTE AGAINST APPROVAL OF THE MERGER. 
MOREOVER, AT THE TIME OF STOCKHOLDER RATIFICATION OF THE MERGER,
OCCIDENTAL'S PREVIOUS DEALING IN OLD KERN STOCK WAS, AS IT HAD ALWAYS
BEEN, FULLY DISCLOSED. 

ONCE THE MERGER AND EXCHANGE WERE APPROVED, OCCIDENTAL WAS LEFT WITH
NO REAL CHOICE WITH RESPECT TO THE FUTURE OF ITS SHARES OF OLD KERN. 
OCCIDENTAL WAS IN NO POSITION TO PREVENT THE ISSUANCE OF A RULING BY
THE INTERNAL REVENUE SERVICE THAT THE EXCHANGE OF OLD KERN STOCK FOR
TENNECO PREFERRED WOULD BE TAX FREE; AND ALTHOUGH VARIOUS LAWSUITS WERE
BEGUN IN STATE AND FEDERAL COURTS SEEKING TO POSTPONE THE MERGER
CLOSING BEYOND THE STATUTORY SIX-MONTH PERIOD, THOSE EFFORTS WERE
FUTILE.  THE CALIFORNIA CORPORATION COMMISSIONER ISSUED THE NECESSARY
PERMITS FOR THE CLOSING THAT TOOK PLACE ON AUGUST 30, 1967.  THE MERGER
LEFT NO RIGHT IN DISSENTERS TO SECURE APPRAISAL OF THEIR STOCK. 
OCCIDENTAL COULD, OF COURSE, HAVE DISPOSED OF ITS SHARES OF OLD KERN
FOR CASH BEFORE THE MERGER WAS CLOSED.  SUCH AN ACT WOULD HAVE BEEN A ^
16 (B) SALE AND WOULD HAVE LEFT OCCIDENTAL WITH A PRIMA FACIE ^ 16 (B)
LIABILITY.  IT WAS NOT, THEREFORE, A REALISTIC ALTERNATIVE FOR
OCCIDENTAL AS LONG AS IT FELT THAT IT COULD SUCCESSFULLY DEFEND A SUIT
LIKE THE PRESENT ONE.  SEE GENERALLY PETTEYS V. BUTLER, 367 F.2D 528
(CA8 1966), CERT. DENIED, 385 U.S. 1006 (1967); FERRAIOLO V. NEWMAN,
SUPRA; LYNAM V. LIVINGSTON, 276 S.SUPP.  104 (DEL. 1967); BLAU V.
HODGKINSON, 100 F.SUPP.  361 (SDNY 1951).  WE DO NOT SUGGEST THAT AN
EXCHANGE OF STOCK PURSUANT TO A MERGER MAY NEVER RESULT IN ^ 16 (B)
LIABILITY.  BUT THE INVOLUNTARY NATURE OF OCCIDENTAL'S EXCHANGE, WHEN
COUPLED WITH THE ABSENCE OF THE POSSIBILITY OF SPECULATIVE ABUSE OF
INSIDE INFORMATION, CONVINCES US THAT ^ 16 (B) SHOULD NOT APPLY TO
TRANSACTIONS SUCH AS THIS ONE. 

[[HC601'(ORIGINAL DOCUMENT PAGE 601)'

        IV 

PETITIONER ALSO CLAIMS THAT THE OCCIDENTAL-TENNECO OPTION AGREEMENT
SHOULD ITSELF BE CONSIDERED A SALE, EITHER BECAUSE IT WAS THE KIND OF
TRANSACTION THE STATUTE WAS DESIGNED TO PREVENT OR BECAUSE THE
AGREEMENT WAS AN OPTION IN FORM BUT A SALE IN FACT.  BUT THE MERE
EXECUTION OF AN OPTION TO SELL IS NOT GENERALLY REGARDED AS A "SALE." 
SEE BOOTH V. VARIAN ASSOCIATES, 334, F.2D 1 (CA1 1964), CERT. DENIED,
379 U.S. 961 (1965); ALLIS-CHALMERS MFG. CO. V. GULF & WESTERN
INDUSTRIES, 309 F.SUPP.  75 (ED WIS. 1970); MARQUETTE CEMENT MFG. CO.
V. ANDREAS, 239 F.SUPP.  962 (SDNY 1965).  AND WE DO NOT FIND IN THE
EXECUTION OF THE OCCIDENTAL-TENNECO OPTION AGREEMENT A SUFFICIENT
POSSIBILITY FOR THE SPECULATIVE ABUSE OF INSIDE INFORMATION WITH
RESPECT TO OLD KERN'S AFFAIRS TO WARRANT HOLDING THAT THE OPTION
AGREEMENT WAS ITSELF A "SALE"  WITHIN THE MEANING OF ^ 16 (B).  THE
MUTUAL ADVANTAGES OF THE ARRANGEMENT APPEAR QUITE CLEAR.  AS THE
DISTRICT COURT FOUND, OCCIDENTAL WANTED TO AVOID THE POSITION OF A
MINORITY STOCKHOLDER WITH A HUGE INVESTMENT IN A COMPANY OVER WHICH IT
HAD NO CONTROL AND IN WHICH IT HAD NOT CHOSEN TO INVEST.  ON THE OTHER
HAND, TENNECO DID NOT WANT A POTENTIALLY TROUBLESOME MINORITY
STOCKHOLDER THAT HAD JUST BEEN VANQUISHED IN A FIGHT FOR THE CONTROL OF
OLD KERN.  MOTIVATIONS LIKE THESE DO NOT SMACK OF INSIDER TRADING; AND
IT IS NOT CLEAR TO US, AS IT WAS NOT TO THE COURT OF APPEALS, HOW THE
NEGOTIATION AND EXECUTION OF THE OPTION AGREEMENT GAVE OCCIDENTAL ANY
POSSIBLE OPPORTUNITY TO TRADE ON INSIDE INFORMATION IT MIGHT HAVE
OBTAINED FROM ITS POSITION AS A MAJOR STOCKHOLDER OF OLD KERN. 
OCCIDENTAL WANTED TO GET OUT, BUT ONLY AT A DATE MORE THAN SIX MONTHS
THENCE.  IT WAS WILLING TO GET OUT AT A PRICE OF $105 PER SHARE, A
PRICE AT WHICH IT HAD PUBLICLY VALUED TENNECO PREFERRED ON MAY 19 WHEN
THE TENNECO-OLD KERN AGREEMENT WAS ANNOUNCED. 

[[HC602'(ORIGINAL DOCUMENT PAGE 602)'  IN ANY EVENT, OCCIDENTAL WAS
DEALING WITH THE PUTATIVE NEW OWNERS OF OLD KERN, WHO UNDOUBTEDLY KNEW
MORE ABOUT OLD KERN AND TENNECO'S AFFAIRS THAN DID OCCIDENTAL.  IF
OCCIDENTAL HAD LEVERAGE IN DEALING WITH TENNECO, IT IS INCREDIBLE THAT
ITS SOURCE WAS INSIDE INFORMATION RATHER THAN THE FACT OF ITS LARGE
STOCK OWNERSHIP ITSELF. 

NEITHER DOES IT APPEAR THAT THE OPTION AGREEMENT, AS DRAFTED AND
EXECUTED BY THE PARTIES, OFFERED MEASURABLE POSSIBILITIES FOR
SPECULATIVE ABUSE.  WHAT OCCIDENTAL GRANTED WAS A "CALL"  OPTION. 
TENNECO HAD THE RIGHT TO BUY AFTER SIX MONTHS, BUT OCCIDENTAL COULD NOT
FORCE TENNECO TO BUY.  THE PRICE WAS FIXED AT $105 FOR EACH SHARE OF
TENNECO PREFERRED.  OCCIDENTAL COULD NOT SHARE IN A RISING MARKET FOR
THE TENNECO STOCK.  SEE SILVERMAN V. LANDA, 306 F.2D 422 (CA2 1962). 
IF THE STOCK FELL MORE THAN $10 PER SHARE, THE OPTION MIGHT NOT BE
EXERCISED, AND OCCIDENTAL MIGHT SUFFER A LOSS IF THE MARKET FURTHER
DETERIORATED TO A POINT WHERE OCCIDENTAL WAS FORCED TO SELL.  THUS, THE
OPTION, BY ITS VERY FORM, LEFT OCCIDENTAL WITH NO CHOICE BUT TO SELL IF
TENNECO EXERCISED THE OPTION, WHICH IT WAS ALMOST SURE TO DO IF THE
VALUE OF TENNECO STOCK REMAINED RELATIVELY STEADY.  ON THE OTHER HAND,
IT IS DIFFICULT TO PERCEIVE ANY SPECULATIVE VALUE TO OCCIDENTAL IF THE
STOCK DECLINED AND TENNECO CHOSE NOT TO EXERCISE ITS OPTION.  SEE
GENERALLY NOTE, PUT AND CALL OPTIONS UNDER SECTION 16 OF THE SECURITIES
EXCHANGE ACT, 69 YALE L.J. 868 (1960); H.FILER, UNDERSTANDING PUT AND
CALL OPTIONS 96 - 111 (1959); G.LEFFLER, THE STOCK MARKET 363 - 378 (2D
ED. 1957). 

THE OPTION, THEREFORE, DOES NOT APPEAR TO HAVE BEEN AN INSTRUMENT
WITH POTENTIAL FOR SPECULATIVE ABUSE, WHETHER OR NOT OCCIDENTAL
POSSESSED INSIDE INFORMATION ABOUT THE AFFAIRS OF OLD KERN.  IN
ADDITION, THE OPTION COVERED TENNECO PREFERENCE STOCK, A STOCK AS YET
UNISSUED, UNREGISTERED, AND UNTRADED.  IT WAS THE VALUE OF THIS STOCK
THAT UNDERLAY THE OPTION AND THAT DETERMINED WHETHER THE OPTION WOULD
BE EXERCISED, WHETHER OCCIDENTAL WOULD BE ABLE TO PROFIT FROM THE
EXERCISE, AND WHETHER THERE WAS ANY REAL LIKELIHOOD OF THE EXPLOITATION
OF INSIDE INFORMATION. 

[[HC603'(ORIGINAL DOCUMENT PAGE 603)'  IF OCCIDENTAL HAD INSIDE
INFORMATION WHEN IT NEGOTIATED AND SIGNED THE OPTION AGREEMENT, IT WAS
INSIDE INFORMATION WITH RESPECT TO OLD KERN.  WHATEVER IT MAY HAVE
KNOWN OR EXPECTED AS TO THE FUTURE VALUE OF OLD KERN STOCK, OCCIDENTAL
HAD NO OWNERSHIP POSITION IN TENNECO GIVING IT ANY ACTUAL OR PRESUMED
INSIGHTS INTO THE FUTURE VALUE OF TENNECO STOCK.  THAT WAS THE CRITICAL
ITEM OF INTELLIGENCE IF OCCIDENTAL WAS TO USE, THE OPTION FOR PURPOSES
OF SPECULATION.  ALSO, THE DATE FOR EXERCISE OF THE OPTION WAS OVER SIX
MONTHS IN THE FUTURE, A PERIOD THAT, UNDER THE STATUTE ITSELF, IS
ASSUMED TO DISSIPATE WHATEVER TRADING ADVANTAGE MIGHT BE IMPUTED TO A
MAJOR STOCKHOLDER WITH INSIDE INFORMATION.  SEE COMMENT, STOCK
EXCHANGES PURSUANT TO CORPORATE CONSOLIDATION:  A SECTION 16 (B)
"PURCHASE OR SALE?," 117 U.PA.L. REV. 1034, 1054 (1969); SILVERMAN V.
LANDA, SUPRA.  BY ENSHRINING THE STATUTORY PERIOD INTO THE OPTION,
OCCIDENTAL ALSO, AT LEAST IF THE STATUTORY PERIOD IS TAKEN TO
ACCOMPLISH ITS INTENDED PURPOSE, LIMITED ITS SPECULATIVE
POSSIBILITIES.  NOR SHOULD IT BE FORGOTTEN THAT THERE WAS NO ABSOLUTE
ASSURANCE THAT THE MERGER, WHICH WAS NOT CONTROLLED BY OCCIDENTAL,
WOULD BE CONSUMMATED.  IN THE EVENT THE MERGER DID NOT CLOSE, THE
OPTION ITSELF WOULD BECOME NULL AND VOID.     NOR CAN WE AGREE THAT WE
MUST REVERSE THE COURT OF APPEALS ON THE GROUND THAT THE OPTION
AGREEMENT WAS IN FACT A SALE BECAUSE THE PREMIUM PAID WAS SO LARGE AS
TO MAKE THE EXERCISE OF THE OPTION ALMOST INEVITABLE, PARTICULARLY WHEN
COUPLED WITH TENNECO'S DESIRE TO RID ITSELF OF A POTENTIALLY
TROUBLESOME STOCKHOLDER.  THE ARGUMENT HAS FORCE, BUT RESOLUTION OF THE
QUESTION IS VERY MUCH A MATTER OF JUDGMENT, ECONOMIC AND OTHERWISE, AND
THE COURT OF APPEALS REJECTED THE ARGUMENT.     [[HC604'(ORIGINAL
DOCUMENT PAGE 604)'  THAT COURT EMPHASIZED THAT THE PREMIUM PAID WAS
WHAT EXPERTS HAD SAID THE OPTION WAS WORTH, THE POSSIBILITY THAT THE
MARKET MIGHT DROP SUFFICIENTLY IN THE SIX MONTHS FOLLOWING EXECUTION OF
THE OPTION TO MAKE EXERCISE UNLIKELY, AND THE FACT THAT HERE, UNLIKE
THE SITUATION IN BERSHAD V. MCDONOUGH, 428 F.2D 693 (CA7 1970), THE
OPTIONOR DID NOT SURRENDER PRACTICALLY ALL EMOLUMENTS OF OWNERSHIP BY
EXECUTING THE OPTION.  NOR DID ANY OTHER SPECIAL CIRCUMSTANCES INDICATE
THAT THE PARTIES UNDERSTOOD AND INTENDED THAT THE OPTION WAS IN FACT A
SALE.  /30/  WE SEE NO SATISFACTORY BASIS OR REASON FOR DISAGREEING
WITH THE JUDGMENT OF THE COURT OF APPEALS IN THIS RESPECT.  /31/ 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

          SO ORDERED. 

/1/  "FOR THE PURPOSE OF PREVENTING THE UNFAIR USE OF INFORMATION
WHICH MAY HAVE BEEN OBTAINED BY SUCH BENEFICIAL OWNER, DIRECTOR, OR
OFFICER BY REASON OF HIS RELATIONSHIP TO THE ISSUER, ANY PROFIT
REALIZED BY HIM FROM ANY PURCHASE AND SALE, OR ANY SALE AND PURCHASE,
OF ANY EQUITY SECURITY OF SUCH ISSUER (OTHER THAN AN EXEMPTED SECURITY)
WITHIN ANY PERIOD OF LESS THAN SIX MONTHS, UNLESS SUCH SECURITY WAS
ACQUIRED IN GOOD FAITH IN CONNECTION WITH A DEBT PREVIOUSLY CONTRACTED,
SHALL INURE TO AND BE RECOVERABLE BY THE ISSUER, IRRESPECTIVE OF ANY
INTENTION ON THE PART OF SUCH BENEFICIAL OWNER, DIRECTOR, OR OFFICER IN
ENTERING INTO SUCH TRANSACTION OF HOLDING THE SECURITY PURCHASED OR OF
NOT REPURCHASING THE SECURITY SOLD FOR A PERIOD EXCEEDING SIX MONTHS. 
SUIT TO RECOVER SUCH PROFIT MAY BE INSTITUTED AT LAW OR IN EQUITY IN
ANY COURT OF COMPETENT JURISDICTION BY THE ISSUER, OR BY THE OWNER OF
ANY SECURITY OF THE ISSUER IN THE NAME AND IN BEHALF OF THE ISSUER IF
THE ISSUER SHALL FAIL OR REFUSE TO BRING SUCH SUIT WITHIN SIXTY DAYS
AFTER REQUEST OR SHALL FAIL DILIGENTLY TO PROSECUTE THE SAME
THEREAFTER; BUT NO SUCH SUIT SHALL BE BROUGHT MORE THAN TWO YEARS AFTER
THE DATE SUCH PROFIT WAS REALIZED.  THIS SUBSECTION SHALL NOT BE
CONSTRUED TO COVER ANY TRANSACTION WHERE SUCH BENEFICIAL OWNER WAS NOT
SUCH BOTH AT THE TIME OF THE PURCHASE AND SALE, OR THE SALE AND
PURCHASE, OF THE SECURITY INVOLVED, OR ANY TRANSACTION OR TRANSACTIONS
WHICH THE COMMISSION BY RULES AND REGULATIONS MAY EXEMPT AS NOT
COMPREHENDED WITHIN THE PURPOSE OF THIS SUBSECTION."  15 U.S.C. ^ 78P
(B). 

/2/  OLD KERN WAS A CALIFORNIA CORPORATION HAVING SUBSTANTIAL REAL
ESTATE HOLDINGS, INCLUDING OIL-PRODUCING LANDS, OIL-EXPLORATION
ACTIVITIES, CATTLE RANCHING, CATTLE-FEEDING OPERATIONS, AND INTERESTS
IN THE MANUFACTURE OF AUTOMOTIVE PARTS, ELECTRONIC SYSTEMS AND DEVICES,
AND FARM MACHINERY AND CONSTRUCTION EQUIPMENT.  AFTER THE
REORGANIZATION DESCRIBED IN THE TEXT, OLD KERN BECAME KNOWN AS THE 600
CALIFORNIA CORPORATION UNTIL ITS EVENTUAL DISSOLUTION UNDER CALIFORNIA
LAW ON OCTOBER 6, 1967. 

/3/  OCCIDENTAL IS THE RESPONDENT IN THIS COURT.  A CALIFORNIA
CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS IN CALIFORNIA,
OCCIDENTAL IS ENGAGED IN THE PRODUCTION AND SALE OF OIL, GAS, COAL,
SULPHUR, AND FERTILIZERS. 

/4/  THE OLD KERN STOCK WAS REGISTERED PURSUANT TO ^ 12 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, 15 U.S.C. ^ 78L.  THE
STOCK WAS A NONEXEMPT, EQUITY SECURITY FOR PURPOSES OF ^ 16 (B). 

/5/  THE OLD KERN STOCK CLOSED AT 63 5/8 ON FRIDAY, MAY 8, 1967, THE
LAST TRADING DAY PRIOR TO THE ANNOUNCEMENT OF THE TENDER OFFER.  IT HAD
REACHED A HIGH OF 64 7/8 AND A LOW OF 57 3/8 IN 1967, A HIGH OF 76 1/4
AND A LOW OF 51 3/4 IN 1966, A HIGH OF 71 5/8 AND A LOW OF 56 IN 1965,
AND A HIGH OF 70 3/8 AND A LOW OF 56 5/8 IN 1964.  THUS, THE $85-PER
SHARE TENDER-OFFER PRICE REPRESENTED A SUBSTANTIAL PROFIT FOR
SHAREHOLDERS OF OLD KERN. 

/6/  ON MAY 10, OLD KERN HAD 4,328,000 SHARES OUTSTANDING. 

/7/  ON MAY 18, 1967, OCCIDENTAL FILED A FORM 3, INITIAL STATEMENT
OF BENEFICIAL OWNERSHIP OF SECURITIES, WITH THE SECURITIES AND EXCHANGE
COMMISSION INDICATING DIRECT OWNERSHIP OF 507,055 SHARES OF OLD KERN
STOCK; ON JUNE 9, 1967, OCCIDENTAL FILED A FORM 4, STATEMENT OF CHANGES
IN BENEFICIAL OWNERSHIP OF SECURITIES, FOR THE MONTH OF MAY, INDICATING
THE PURCHASE OF AN ADDITIONAL 376,326 SHARES OF OLD KERN STOCK, FOR A
TOTAL OWNERSHIP AS OF MAY 31, 1967, OF 883,381 SHARES.  AN ADDITIONAL
4,168 SHARES WERE PURCHASED BY JUNE 8, 1967, SO THAT AS OF JUNE 30,
1967, OCCIDENTAL HELD 887,549 SHARES OF OLD KERN STOCK.  THIS FIGURE
INCLUDED 1,900 SHARES WHICH OCCIDENTAL PURCHASED ON THE OPEN MARKET IN
APRIL 1967.  SECTION 16 (B) LIABILITY IS NOT ASSERTED WITH RESPECT TO
THESE SHARES, BECAUSE THESE PURCHASES DID NOT MAKE OCCIDENTAL A
"BENEFICIAL OWNER" FOR PURPOSES OF ^ 16 (B). 

/8/  TENNECO, A DELAWARE CORPORATION, IS A DIVERSIFIED INDUSTRIAL
COMPANY WITH OPERATIONS IN NATURAL GAS TRANSMISSION, OIL AND GAS,
CHEMICALS, PACKAGING, MANUFACTURING, AND SHIPBUILDING.  TENNECO IS NOT
A PARTY TO THIS LITIGATION. 

/9/  ALTHOUGH TECHNICALLY A SALE OF ASSETS, THE CORPORATE
COMBINATION HAS BEEN CONSISTENTLY REFERRED TO BY THE PARTIES AS A
"MERGER" AND WILL BE SIMILARLY DENOMINATED IN THIS OPINION.  THE ONLY
SIGNIFICANCE OF THE CHARACTERIZATION IS THE FACT THAT A SALE OF ASSETS
REQUIRED, UNDER CALIFORNIA LAW, APPROVAL OF ONLY A MAJORITY OF THE OLD
KERN SHAREHOLDERS AND PROVIDED NO APPRAISAL RIGHTS FOR DISSENTERS. 

/10/  NEW KERN, A DELAWARE CORPORATION WITH ITS PRINCIPAL PLACE OF
BUSINESS IN CALIFORNIA, IS THE PETITIONER IN THIS COURT AND IS A WHOLLY
OWNED SUBSIDIARY OF TENNECO CORPORATION.  TENNECO CORP. IS, IN TURN, A
WHOLLY OWNED SUBSIDIARY OF TENNECO AND OWNS ALL OF THE CAPITAL STOCK OR
CONTROLLING INTERESTS IN MOST OF TENNECO'S NON-PIPELINE OPERATING
SUBSIDIARIES.  WHEN FIRST INCORPORATED, NEW KERN WAS KNOWN AS KCL
CORPORATION. 

/11/  THE ANNUAL DIVIDENT OF $5.50 PER SHARE ON THE NEW TENNECO
STOCK WOULD BE MORE THAN DOUBLE THE CURRENT ANNUAL DIVIDEND OF $2.60
PER SHARE ON THE OLD KERN STOCK.  EACH SHARE OF THE NEW TENNECO
PREFERENCE STOCK WAS CONVERTIBLE INTO 3.6 SHARES OF TENNECO COMMON
STOCK.  DURING 1967, TENNECO COMMON STOCK HAD SOLD AT A HIGH OF 32 1/2
AND A LOW OF 20 7/8.  MOREOVER, IN CONTRAST TO OCCIDENTAL'S CASH OFFER,
THE TENNECO EXCHANGE WAS EXPECTED TO BE, AND WAS ULTIMATELY APPROVED BY
THE INTERNAL REVENUE SERVICE AS, FREE OF CAPITAL GAINS TAX. 

/12/  PRIOR TO ANY COURT RULING ON OCCIDENTAL'S MANDAMUS PETITIONS,
OLD KERN VOLUNTARILY PERMITTED INSPECTION OF OLD KERN'S GENERAL LEDGER,
CONSOLIDATED FINANCIAL STATEMENTS, CONSOLIDATED JOURNAL ENTRIES,
DETAILS OF CASH RECEIPTS FROM OIL OPERATIONS, SUPPORTING TRIAL
BALANCES, AND OTHER RECORDS OVER A SIX-DAY PERIOD.  A LIST OF
STOCKHOLDERS, HOWEVER, WAS WITHHELD. 

/13/  THE AGREEMENT COVERED 886,623 SHARES.  THIS FIGURE IS 926
SHARES LESS THAN THE NUMBER OF OLD KERN SHARES ULTIMATELY OWNED BY
OCCIDENTAL.  THIS DISCREPANCY APPARENTLY RESULTS FROM UNCERTAINTY AS TO
THE NUMBER OF SHARES TENDERED. 

/14/  AN OUTSIDE INVESTMENT BANKING FIRM IN NEW YORK HAD DETERMINED
THAT BETWEEN $9 AND $12 PER SHARE WAS A FAIR PREMIUM ON AN OPTION ON
THE OLD KERN STOCK. 

/15/  ON THAT DATE, AND ON THE DATE OF THE EXERCISE OF THE OPTION,
OLD KERN COMMON STOCK WAS SELLING AT APPROXIMATELY $95 PER SHARE. 

/16/  SEEKING TO PREVENT ITS ACQUISITION OF TENNECO SHARES PRUSUANT
TO THE MERGER FROM BEING MATCHED WITH THE SALE OF THOSE SHARES UPON
EXERCISE OF THE OPTION FOR PURPOSES OF ESTABLISHING ^ 16 (B) LIABILITY,
OCCIDENTAL ASKED THAT THE NEW TENNECO STOCK NOT BE IMMEDIATELY
REGISTERED PURSUANT TO ^ 12 OF THE SECURITIES EXCHANGE ACT OF 1934, 15
U.S.C. ^ 78L.  SEE 450 F.2D 157, 160 N.6. 

/17/  THE LETTER INDICATED THAT OCCIDENTAL "DID NOT CONSIDER IT TO
BE IN ITS BEST INTEREST, OR THE BEST INTEREST OF ITS SHAREHOLDERS, OR
THE BEST INTEREST OF KCL SHAREHOLDERS GENERALLY FOR IT TO (OPPOSE) THE
TRANSACTION."  HOWEVER, OCCIDENTAL STATED THAT "(IN VIEW OF THE FACT
THAT WE WOULD RATHER HAVE WORKED OUT OUR OWN TRANSACTION WITH KCL, WE
SHALL NOT VOTE OUR KCL SHARES AT THE KCL SHAREHOLDER'S MEETING ON JULY
17, 1967."  UNDER APPLICABLE CALIFORNIA LAW, THE ABSTENTION FROM VOTING
WAS TANTAMOUNT TO OPPOSING THE MERGER. 

/18/  THIS HISTORY OF THIS LITIGATION IS REVIEWED IN 600 CALIFORNIA
CORP. V. HARJEAN CO., 284 F.SUPP.  843 (ND TEX. 1968). 

/19/  OCCIDENTAL ANSWERED ASSERTING VARIOUS AFFIRMATIVE DEFENSES AND
SHAREHOLDERS, AND ONE WAS SUBSEQUENTLY BEGUN.  THE FOUR SUITS WERE
COUNTERCLAIMS.  TWO SUITS HAD ALREADY BEEN INSTITUTED BY OLD KERN
CONSOLIDATED. 

/20/ IN VIEW OF ITS DISPOSITION, THE COURT OF APPEALS DID NOT REACH
OCCIDENTAL'S CONTENTIONS THAT ONLY THE PURCHASES IN EXCESS OF 10% OF
OLD KERN'S STOCK, RATHER THAN ALL PURCHASES MADE PURSUANT TO THE TENDER
OFFER, SHOULD BE INCLUDED IN CALCULATING LIABILITY AND THAT THE AWARDS
OF PREJUDGMENT INTEREST AND DIVIDENDS WERE IMPROPER.  OCCIDENTAL ALSO
APPEALED FROM THE DISMISSAL OF ITS COUNTERCLAIMS.  THE COURT OF APPEALS
DISMISSED OCCIDENTAL'S APPEAL AS MOOT. 

/21/  FOR PURPOSES OF ^ 16 (B), A STATUTORY INSIDER INCLUDES A
"BENEFICIAL OWNER, DIRECTOR, OFFICER."  15 U.S.C. ^ 78P (B).  THE TERM
"BENEFICIAL OWNER" REFERS TO ONE WHO OWNS "MORE THAN 10 PER CENTUM OF
ANY CLASS OF ANY EQUITY SECURITY (OTHER THAN AN EXEMPTED SECURITY)
WHICH IS REGISTERED PURSUANT TO SECTION 78L (^ 12) OF THIS TITLE," 15
U.S.C. ^ 78P (A). 

/22/  THE TERM "EQUITY SECURITY" IS DEFINED TO INCLUDE "ANY STOCK OR
SIMILAR SECURITY; OR ANY SECURITY CONVERTIBLE, WITH OR WITHOUT
CONSIDERATION, INTO SUCH A SECURITY, OR CARRYING ANY WARRANT OR RIGHT
TO SUBSCRIBE TO OR PURCHASE SUCH A SECURITY; OR ANY SUCH WARRANT OR
RIGHT; OR ANY OTHER SECURITY WHICH THE COMMISSION SHALL DEEM TO BE OF
SIMILAR NATURE AND CONSIDER NECESSARY OR APPROPRIATE, BY SUCH RULES AND
REGULATIONS AS IT MAY PRESCRIBE IN THE PUBLIC INTEREST OR FOR THE
PROTECTION OF INVESTORS, TO TREAT AS AN EQUITY SECURITY."  15 U.S.C. ^
78 (A) (11). 

/23/  THE LEGISLATIVE HISTORY OF ^ 16 (B) REVEALS A CONGRESSIONAL
EFFORT TO CURB SHORT-SWING TRADING BY INSIDERS WHOSE POSITION GIVES
THEM ACCESS TO INFORMATION NOT AVAILABLE TO THE INVESTING PUBLIC AND
THE ABILITY TO INFLUENCE CORPORATE POLICY. 

"AMONG THE MOST VICIOUS PRACTICES UNEARTHED AT THE HEARINGS BEFORE
THE SUBCOMMITTEE WAS THE FLAGRANT BETRAYAL OF THEIR FIDUCIARY DUTIES BY
DIRECTORS AND OFFICERS OF CORPORATIONS WHO USED THEIR POSITIONS OF
TRUST AND THE CONFIDENTIAL INFORMATION WHICH CAME TO THEM IN SUCH
POSITIONS, TO AID THEM IN THEIR MARKET ACTIVITIES.  CLOSELY ALLIED TO
THIS TYPE OF ABUSE WAS THE UNSCRUPULOUS EMPLOYMENT OF INSIDE
INFORMATION BY LARGE STOCKHOLDERS WHO, WHILE NOT DIRECTORS AND
OFFICERS, EXERCISED SUFFICIENT CONTROL OVER THE DESTINIES OF THEIR
COMPANIES TO ENABLE THEM TO ACQUIRE AND PROFIT BY INFORMATION NOT
AVAILABLE TO OTHERS."  S. REP. NO. 1455, 73D CONG., 2D SESS., 55
(1934).  SEE ALSO 10 S.E.C. ANN. REP. 50 (1944); S. REP. NO. 792, 73D
CONG., 2D SESS. 9 (1934). 

"THE SECURITIES EXCHANGE ACT OF 1934 AIMS TO PROTECT THE INTERESTS
OF THE PUBLIC AGAINST THE PREDATORY OPERATIONS OF DIRECTORS, OFFICERS,
AND PRINCIPAL STOCKHOLDERS OF CORPORATIONS BY PREVENTING THEM FROM
SPECULATING IN THE STOCK OF THE CORPORATIONS TO WHICH THEY OWE A
FIDUCIARY DUTY.  . . . BY THIS SECTION (16 (B)) IT IS RENDERED UNLAWFUL
FOR PERSONS INTRUSTED WITH THE ADMINISTRATION OF CORPORATE AFFAIRS OR
VESTED WITH SUBSTANTIAL CONTROL OVER CORPORATIONS TO USE INSIDE
INFORMATION FOR THEIR OWN ADVANTAGE."  S. REP. NO. 1455, 73D CONG., 2D
SESS., 68 (1934). 

THE PURPOSE AND OPERATION OF ^ 16 (B) WAS EXPLAINED AS FOLLOWS BY
ONE OF ITS DRAFTSMEN. 

"(SECTION 16 (B)) IS TO PREVENT DIRECTORS RECEIVING THE BENEFITS OF
SHORT-TERM SPECULATIVE SWINGS ON THE SECURITIES OF THEIR OWN COMPANIES,
BECAUSE OF INSIDE INFORMATION.  THE PROFIT ON SUCH TRANSACTION UNDER
THE BILL WOULD GO TO THE CORPORATION.  YOU HOLD THE DIRECTOR,
IRRESPECTIVE OF ANY INTENTION OR EXPECTATION TO SELL THE SECURITY
WITHIN 6 MONTHS AFTER, BECAUSE IT WILL BE ABSOLUTELY IMPOSSIBLE TO
PROVE THE EXISTENCE OF SUCH INTENTION OR EXPECTATION, AND YOU HAVE TO
HAVE THIS CRUDE RULE OF THUMB, BECAUSE YOU CANNOT UNDERTAKE THE BURDEN
OF HAVING TO PROVE THAT THE DIRECTOR INTENDED, AT THE TIME HE BOUGHT,
TO GET OUT ON A SHORT SWING."  HEARINGS ON STOCK EXCHANGE PRACTICES
BEFORE THE SENATE COMMITTEE ON BANKING AND CURRENCY, 73D CONG., 2D
SESS., PT. 15, P. 6557 (1934). 

SEE GENERALLY HEARINGS ON H.R. 7852 AND H.R. 8720 BEFORE THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 73D CONG., 2D SESS., 85
(1934); HEARINGS ON STOCK EXCHANGE PRACTICES, SUPRA, AT 6463 - 6581
(1934); S. REP. NO. 792, 73D CONG., 2D SESS., 7 - 9 (1934); S. REP. NO.
1455, 73D CONG., 2D SESS., 55 - 68 (1934); H.R. REP. NO. 1383, 73D
CONG., 2D SESS., 13 - 14 (1934).  SEE ALSO BLAU V. LAMB, 363 F.2D 507
(CA2 1966), CERT. DENIED, 385 U.S. 1002 (1967); SMOLOWE V. DELENDO
CORP., 136 F.2D 231 (CA2), CERT. DENIED, 320 U.S. 751 (1943); YOURD,
TRADING IN SECURITIES BY DIRECTORS, OFFICERS AND STOCKHOLDERS:  SECTION
16 OF THE SECURITIES EXCHANGE ACT, 38 MICH. L. REV. 133 (1939); MEEKER
& COONEY, THE PROBLEM OF DEFINITION IN DETERMINING INSIDER LIABILITIES
UNDER SECTION 16 (B), 45 VA.L. REV. 949 (1959); COMMENT, STOCK
EXCHANGES PURSUANT TO CORPORATE CONSOLIDATION:  A SECTION 16 (B)
"PURCHASE OR SALE?," 117 U.PA.L. REV. 1034 (1969).     /24/  THE TERM,
SEE 2 L. LOSS, SECURITIES REGULATION 1069 (2D ED. 1961), HAS BEEN
APPLIED TO STOCK CONVERSIONS, EXCHANGES PURSUANT TO MERGERS AND OTHER
CORPORATE REORGANIZATIONS, STOCK RECLASSIFICATIONS, AND DEALINGS IN
OPTIONS, RIGHTS, AND WARRANTS. 

/25/  "WHEN USED IN THIS CHAPTER, UNLESS THE CONTEXT OTHERWISE
REQUIRES--

        *          *          *  * 

"(13) THE TERMS 'BUY' AND 'PURCHASE' EACH INCLUDE ANY CONTRACT TO
BUY, PURCHASE, OR OTHERWISE ACQUIRE. 

"(14) THE TERMS 'SALE' AND 'SELL' EACH INCLUDE ANY CONTRACT TO SELL
OR OTHERWISE DISPOSE OF."  15 U.S.C. ^^ 78C (A) (13), (14). 

/26/  SEVERAL DECISIONS HAVE BEEN READ AS TO APPLY A SO-CALLED
"OBJECTIVE" TEST IN INTERPRETING AND APPLYING ^ 16 (B).  SEE, E.G., 2D
984 (CA2), CERT. DENIED, 332 U.S. 761 (1947); HELI-COIL CORP. V.
WEBSTER, 352 F.2D 156 (CA3 1965).  UNDER SOME BROAD LANGUAGE IN THOSE
DECISIONS, ^ 16 (B) IS SAID TO BE APPLICABLE WHETHER OR NOT THE
TRANSACTION IN QUESTION COULD POSSIBLY LEND ITSELF TO THE TYPES OF
SPECULATIVE ABUSE THAT THE STATUTE WAS DESIGNED TO PREVENT.  BY FAR THE
GREATER WEIGHT OF AUTHORITY IS TO THE EFFECT THAT A "PRAGMATIC"
APPROACH TO ^ 16 (B) WILL BEST SERVE THE STATUTORY GOALS.  SEE, E.G.,
ROBERTS V. EATON, 212 F.2D 82 (CA2), CERT. DENIED, 348 U.S. 827 (1954);
FERRAIOLO V. NEWMAN, 259 F. 2D 342 (CA6 1958), CERT. DENIED, 359 U.S.
927 (1959); BLAU V. MAX FACTOR & CO., 342 F.2D 304 (CA9), CERT. DENIED,
382 U.S. 892 (1965); BLAU V. LAMB, SUPRA; PETTEYS V. BUTLER, 367 F.2D
528 (CA8 1966), CERT. DENIED, 385 U.S. 1006 (1967).  FOR A DISCUSSION
AND CRITICAL APPRAISAL OF THE VARIOUS "APPROACHES" TO THE
INTERPRETATION AND APPLICATION OF ^ 16 (B), SEE LOWENFELS, SECTION 16
(B):  A NEW TREND IN REGULATING INSIDER TRADING, 54 CORNELL
CONSOLIDATION:  A SECTION 16 (B) "PURCHASE OR SALE?," 117 U. PA. L.
REV. 1034 (1969); NOTE, RELIANCE ELECTRIC AND 16 (B) LITIGATION:  A
RETURN TO THE OBJECTIVE APPROACH?, 58 VA. L. REV. 907 (1972); GADSBY &
TREADWAY, RECENT DEVELOPMENTS UNDER SECTION 16 (B) OF THE SECURITIES
EXCHANGE ACT OF 1934, 17 N.Y.L.F. 687 (1971). 

/27/  OUR DIFFERENCES WITH THE DISSENT AS TO THE REACH AND SCOPE OF
CONGRESSIONAL INTENT AND PURPOSE ARE CLEAR.  IF WE ARE MISTAKEN, OR IF
CONGRESS WOULD NOW MANDATE A DIFFERENT RESULT, THE STATUTORY REMEDY
WOULD NOT BE DIFFICULT TO FASHION. 

/28/  BOTH EVENTS OCCURRED WITHIN SIX MONTHS OF OCCIDENTAL'S FIRST
ACQUISITION OF OLD KERN SHARES PURSUANT TO ITS TENDER OFFER.  ALTHOUGH
OCCIDENTAL DID NOT EXCHANGE ITS OLD KERN SHARES UNTIL DECEMBER 11,
1967, IT IS NOT CONTENDED THAT THAT DATE, RATHER THAN THE DATE ON WHICH
OCCIDENTAL BECAME IRREVOCABLY BOUND TO DO SO, SHOULD CONTROL. 
SIMILARLY, ALTHOUGH THE OPTION WAS NOT EXERCISED UNTIL DECEMBER 11,
1967, NO LIABILITY IS ASSERTED WITH RESPECT TO THAT EVENT, BECAUSE IT
OCCURRED MORE THAN SIX MONTHS AFTER OCCIDENTAL'S LAST ACQUISITION OF
OLD KERN STOCK. 

/29/  ALTHOUGH A "DEFENSIVE MERGER" IS ONE TACTIC AVAILABLE TO
INCUMBENT MANAGEMENT IN ITS ARSENAL OF ANTITENDER-OFFER WEAPONS, IT IS
BY NO MEANS A FOREGONE CONCLUSION THAT IT IS THE RESPONSE THAT WILL BE
MOST OFTEN, MUCH LESS INVARIABLY, EMPLOYED.  INCUMBENT MANAGEMENT
MIGHT, FOR INSTANCE, CHOOSE TO EXHORT SHAREHOLDERS NOT TO TENDER,
EMPLOY VARIOUS TECHNIQUES TO ELEVATE THE MARKET PRICE OF THE COMPANY'S
STOCK IN ORDER TO MAKE THE TENDER OFFER LESS ATTRACTIVE, INSTITUTE
LEGAL PROCEEDINGS, OR INCREASE THE COMPANY'S OUTSTANDING STOCK.  ANY
ONE OF THESE DEVICES MIGHT PROVE MORE ATTRACTIVE TO INCUMBENT
MANAGEMENT THAN A DEFENSIVE MERGER WHICH COULD PROVE TO BE HIGHLY
DETRIMENTAL TO THE ENTERPRISE.  SEE NOTE, DEFENSIVE TACTICS EMPLOYED BY
INCUMBENT MANAGEMENTS IN CONTESTING TENDER OFFERS, 21 STAN.  L. REV.
1104 (1969). 

/30/  IN BERSHAD V. MCDONOUGH, 428 F.2D 693 (CA7 1970), THE
DEFENDANTS WERE DIRECTORS AND GREATER-THAN-TEN-PERCENT STOCKHOLDERS OF
CUDAHY CO. THE DEFENDANTS, WITHIN SIX MONTHS OF THEIR ACQUISITION OF
BENEFICIAL OWNERSHIP OF CUDAHY, GRANTED AN OPTION TO SMELTING REFINING
& MINING CO. TO PURCHASE THEIR CUDAHY STOCK.  THE SEVENTH CIRCUIT HELD
THAT THE GRANT OF THE OPTION WAS A ^ 16 (B) "SALE" OF THE CUDAHY
STOCK.  THE COURT OF APPEALS IN THE PRESENT CASE DISTINGUISHED BERSHAD
AS FOLLOWS: 

"THAT CASE CAME BEFORE THE COURT OF APPEALS ON A FINDING BY THE
DISTRICT COURT THAT, UNDER THE CIRCUMSTANCES THERE PRESENTED, THE STOCK
HAD IN FACT BEEN SOLD WITHIN THE SIX MONTHS PERIOD, ALTHOUGH THE OPTION
WAS NOT FORMALLY EXERCISED UNTIL LATER.  THE DISTRICT COURT HAD RELIED
ON A NUMBER OF CIRCUMSTANCES, THE MOST SIGNIFICANT BEING THAT THE
OPTIONOR GAVE THE OPTIONEE AN IRREVOCABLE PROXY TO VOTE THE SHARES AND
THAT THE OPTIONOR AND ONE OF HIS ASSOCIATE DIRECTORS RESIGNED AS
DIRECTORS WITHIN A FEW DAYS AFTER THE GRANT OF THE OPTION AND WERE
REPLACED BY OFFICERS OF THE OPTIONEE.  IN OTHER WORDS, THE DISTRICT
COURT FOUND IN EFFECT THAT THE 'OPTION' WAS ACCOMPANIED BY A WINK OF
THE EYE, AND THE COURT OF APPEALS SUSTAINED THIS.  HERE THERE IS NO
SUCH FINDING, AND NO BASIS FOR ONE."  450 F.2D, AT 165. 

/31/  WITH RESPECT TO ENTERING JUDGMENT FOR OCCIDENTAL, THE DISSENT
SIMPLY HAS A DIFFERENT, BUT INSUFFICIENTLY PERSUASIVE, VIEW OF THE
FACTS FROM THAT OF JUDGE FRIENDLY AND HIS COLLEAGUES. 

[[HC605'(ORIGINAL DOCUMENT PAGE 605)' 

[[DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART CONCUR, DISSENTING. 

THE COURT, IN RESORTING TO AN AD HOC ANALYSIS OF THE "POSSIBILITY
FOR THE SPECULATIVE ABUSE OF INSIDE INFORMATION," CHARTS A COURSE FOR
THE INTERPRETATION OF ^ 16 (B) OF THE SECURITIES EXCHANGE ACT OF 1934,
15 U.S.C. ^ 78P (B), THAT IN MAND UNDERMINES THE CONGRESSIONAL
PURPOSE.  I RESPECTFULLY DISSENT. 

        I 

"THE STATUTE IS WRITTEN BROADLY, AND THE LIABILITY IT IMPOSES IS
STRICT."  RELIANCE ELECTRIC CO. V. EMERSON ELECTIRC CO., 404 U.S. 418,
431 (DOUGLAS, J., DISSENTING).  EXCEPT FOR NARROWLY DRAWN EXCEPTIONS,
IT IS ALL-INCLUSIVE.  /1/  THE OPERATIVE LANGUAGE PROVIDES: 

"(ANY PROFIT REALIZED BY (A BENEFICIAL OWNER, DIRECTOR, OR OFFICER)
FROM ANY PURCHASE AND SALE, OR ANY SALE AND PURCHASE, OF ANY EQUITY
SECURITY OF SUCH ISSUER (OTHER THAN AN EXEMPTED SECURITY) WITHIN ANY
PERIOD OF LESS THAN SIX MONTHS, UNLESS SUCH SECURITY WAS ACQUIRED IN
GOOD FAITH IN CONNECTION WITH A DEBT PREVIOUSLY CONTRACTED, SHALL INURE
TO AND BE RECOVERABLE BY THE ISSUER, IRRESPECTIVE OF ANY INTENTION ON
THE PART OF SUCH BENEFICIAL OWNER, DIRECTOR, OR OFFICER IN ENTERING
INTO SUCH TRANSACTION OF HOLDING THE SECURITY PURCHASED OR OF NOT
REPURCHASING THE SECURITY SOLD FOR A PERIOD EXCEEDING SIX MONTHS." 

[[HC606'(ORIGINAL DOCUMENT PAGE 606)' 

BY ITS OWN TERMS, THE SECTION SUBSUMES ALL TRANSACTIONS THAT ARE
TECHNICALLY PURCHASES AND SALES AND APPLIES IRRESPECTIVE OF ANY ACTUAL
OR POTENTIAL USE OF INSIDE INFORMATION TO GAIN A TRADING ADVANTAGE. 
SEE FEDER V. MARTIN MARIETTA CORP., 406 F.2D 260, 262 (CA2 1969).  THE
CONCLUSION SEEMS INESCAPABLE THAT OCCIDENTAL PETROLEUM CORP.
(OCCIDENTAL) PURCHASED AND SOLD SHARES OF KERN COUNTY LAND CO. (OLD
KERN) WITHIN A SIX-MONTH PERIOD AND THAT THIS "ROUND TRIP" IN OLD KERN
STOCK IS COVERED BY THE LITERAL TERMS OF ^ 16 (B). 

OCCIDENTAL, PURSUANT TO A CASH TENDER OFFER, ACQUIRED IN EXCESS OF
880,000 SHARES OF OLD KERN DURING MAY AND JUNE 1967.  IT IS UNDISPUTED
THAT THESE ACQUISITIONS WERE PURCHASES WITHIN THE MEANING OF THE
FORMED SUBSIDIARY OF TENNECO CORP., KERN COUNTY LAND CO. (NEW KERN), IN
EXCHANGE FOR CUMULATIVE CONVERTIBLE PREFERENCE STOCK OF TENNECO, INC.
(TENNECO), TENNECO CORP.'S PARENT. 

[[HC607'(ORIGINAL DOCUMENT PAGE 607)'  OLD KERN WAS DISSOLVED IN
OCTOBER 1967 (WITHIN SIX MONTHS OF THE TENDER OFFER), AND EACH
SHAREHOLDER BECAME IRREVOCABLY ENTITLED TO RECEIVE, SHARE FOR SHARE,
FOR HIS OLD KERN STOCK THE CUMULATIVE CONVERTIBLE PREFERENCE STOCK OF
TENNECO. 

THE QUESTION PRESENTED TO US IS WHETHER THIS EXCHANGE OF SHARES
CONSTITUTED A "SALE" OF THE OLD KERN SHARES.  THE TERM "SALE," AS USED
IN THE SECURITIES EXCHANGE ACT, INCLUDES "ANY CONTRACT TO SELL OR
OTHERWISE DISPOSE OF."  15 U.S.C. ^ 78C (A) (14).  CLEARLY, OCCIDENTAL
"DISPOSED" OF ITS OLD KERN SHARES THROUGH THE OLD KERN-TENNECO
CONSOLIDATION.  ITS STATUS AS A SHAREHOLDER OF OLD KERN TERMINATED, AND
IT BECAME INSTEAD A SHAREHOLDER OF TENNECO, PRIVY TO ALL THE RIGHTS
CONFERRED BY THE TENNECO SHARES.  /3/  SEE NEWMARK V. RKO GENERAL, 425
F.2D 348 (CA2 1970); PARK & TILFORD V. SCHULTE, 160 F.2D 984 (CA2
1947).  /4/  IN MY VIEW, WE NEED LOOK NO FURTHER. 

[[HC608'(ORIGINAL DOCUMENT PAGE 608)'  AS MY BROTHER BLACKMUN, THEN
CIRCUIT JUDGE, STATED IN DISSENT IN PETTEYS V. BUTLER, 367 F.2D 528,
538 (CA8 1966): 

    "MY OWN REACTION IS THAT EITHER THE STATUTE MEANS WHAT IT

  LITERALLY SAYS OR THAT IT DOES NOT; THAT IF THE CONGRESS INTENDED

  TO PROVIDE ADDITIONAL EXCEPTIONS, IT WOULD HAVE DONE SO IN CLEAR

  LANGUAGE; AND THAT THE RECOGNIZED PURPOSE AND AIM OF THE STATUTE

  ARE MORE CONSISTENTLY AND PROTECTIVELY TO BE SERVED IF THE

  STATUTE IS CONSTRUED LITERALLY AND OBJECTIVELY RATHER THAN

  NON-LITERALLY AND SUBJECTIVELY ON A CASE-BY-CASE APPLICATION. 

  THE LATTER INEVITABLE IS A WEAKENING PROCESS." 

THE MAJORITY FINESSES THE LITERAL IMPACE OF ^ 16 (B) BY EXAMINING
OCCIDENTAL'S WILLFULNESS AND ITS ACCESS TO INSIDE INFORMATION.  IT
CONCLUDES:  "BUT THE INVOLUNTARY NATURE OF OCCIDENTAL'S EXCHANGE, WHEN
COUPLED WITH THE ABSENCE OF THE POSSIBILITY OF SPECULATIVE ABUSE OF
INSIDE INFORMATION, CONVINCES US THAT ^ 16 (B) SHOULD NOT APPLY TO
TRANSACTIONS SUCH AS THIS ONE."  ANTE, AT 600.  THIS APPROACH IS
PLAINLY CONTRARY TO THE LEGISLATIVE PURPOSE. 

THE PURPOSE OF ^ 16 (B) IS STATED IN ITS PREAMBLE:  "PREVENTING THE
UNFAIR USE OF INFORMATION WHICH MAY HAVE BEEN OBTAINED BY SUCH
BENEFICIAL OWNER, DIRECTOR, OR OFFICER BY REASON OF HIS RELATIONSHIP TO
THE ISSUER.  . . ."  THE CONGRESSIONAL INVESTIGATIONS THAT LED TO THE
ENACTMENT OF THE SECURITIES EXCHANGE ACT REVEALED WIDESPREAD USE OF
CONFIDENTIAL INFORMATION BY CORPORATE INSIDERS TO GAIN AN UNFAIR
ADVANTAGE IN TRADING THEIR CORPORATIONS'  SECURITIES.  /5/  UNLIKE
OTHER REMEDIAL PROVISIONS OF THE ACT, THE MOST NOTEWORTHY BEING ^ 10
(B), 15 U.S.C. ^ 78 J (B), CONGRESS DRAFTED ^ 16 (B) AS AN OBJECTIVE
RULE, DESIGNED TO HAVE A CLEARLY "PROPHYLACTIC" EFFECT. 

[[HC609'(ORIGINAL DOCUMENT PAGE 609)'  BLAU V. LEHMAN, 368 U.S. 403,
414.  SEE HELICOIL CORP. V. WEBSTER, 352 F.2D 156, 165 - 166 (CA3
1965); SMOLOWE V. DELENDO CORP., 136 F.2D 231, 235 (CA2 1943).  AS
THOMAS CORCORAN, A PRINCIPAL DRAFTSMAN OF THE ACT, EXPLAINED TO
CONGRESS: 

"YOU HOLD THE DIRECTOR, IRRESPECTIVE OF ANY INTENTION OR EXPECTATION
TO SELL THE SECURITY WITHIN 6 MONTHS AFTER, BECAUSE IT WILL BE
ABSOLUTELY IMPOSSIBLE TO PROVE THE EXISTENCE OF SUCH INTENTION OR
EXPECTATION, AND YOU HAVE TO HAVE THIS CRUDE RULE OF THUMB, BECAUSE YOU
CANNOT UNDERTAKE THE BURDEN OF HAVING TO PROVE THAT THE DIRECTOR
INTENDED, AT THE TIME HE BOUGHT, TO GET OUT ON A SHORT SWING."  /6/ 

IN RELIANCE ELECTRIC, SUPRA, THE COURT NOTED THAT "THE ONLY METHOD
CONGRESS DEEMED EFFECTIVE TO CURB THE EVILS OF INSIDER TRADING WAS A
FLAT RULE TAKING THE PROFITS OUT OF A CLASS OF TRANSACTIONS IN WHICH
THE POSSIBILITY OF ABUSE WAS BELIEVED TO BE INTOLERABLY GREAT."  404
U.S., AT 422. 

CERTAINLY, MERGERS ARE SUCH A CLASS OF TRANSACTIONS.  /7/  IN
NEWMARK V. RKO GENERAL, SUPRA, FOR EXAMPLE, RKO SIGNED AN OPTION
CONTRACT TO PURCHASE SHARES OF THE COMPANY WHICH WAS TO BE MERGED INTO
A SUBSIDIARY OF RKO.  WHEN THE MERGER WAS APPROVED BY THE NECESSARY
PARTIES, RKO EXERCISED ITS OPTION AND THE MERGER WAS CONSUMMATED.  THE
COURT FOUND THAT RKO "NOT ONLY ACQUIRED KNOWLEDGE OF WHAT WOULD
TRANSPIRE BUT ALSO COULD EXERCISE SUBSTANTIAL INFLUENCE OVER THE COURSE
OF EVENTS." 

[[HC610'(ORIGINAL DOCUMENT PAGE 610)'  425 F.2D, AT 353.  "IN SUM,"
THE COURT CONCLUDED, "THE PURCHASE AND SUBSEQUENT EXCHANGE OF CENTRAL
SHARES WERE FRAUGHT WITH OPPORTUNITIES FOR THE KIND OF SPECULATIVE
ABUSE SECTION 16 (B) WAS INTENDED TO ABORT."  ID., AT 354. 

THE SECURITIES AND EXCHANGE COMMISSION HAS RESISTED A RULE THAT
WOULD EXEMPT MERGERS AS A CLASS FROM THE OPERATION OF ^ 16 (B).  IT
RESPONDED AS FOLLOWS TO A PROPOSAL OF THE SPECIAL COMMITTEE ON
SECURITIES REGULATION OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW
YORK:  /8/ 

"WE CONCLUDED, HOWEVER, THAT REMOVING THE 'TEETH'  OF SECTION 16 (B)
TO DISCOURAGE THE USE OF INSIDE INFORMATION WOULD ALLOW INSIDERS TO
CREATE AND TAKE ADVANTAGE OF SPECULATIVE OPPORTUNITIES DURING THE TIME
SURROUNDING SUCH SIGNIFICANT CORPORATE EVENTS WHICH OUTWEIGHED THIS
POTENTIAL CONFLICT.  ALSO, WE KNOW THAT SOME PERSONS ARE UNWITTINGLY
CAUGHT BY THE SECTION IN THESE AS IN OTHER SITUATIONS FALLING WITHIN
THE PROVISIONS OF SECTION 16 (B), BUT IN OUR OPINION THE PUBLIC
INTEREST AND THE INTEREST OF INVESTORS ARE BETTER SERVED IN THIS AREA
BY THE UNRESTRICTED OPERATION OF THE SECTION." 

IT IS TRUE THAT IN SOME CASES AN INSIDER MAY BE REQUIRED TO DISGORGE
PROFITS EVEN THOUGH HIS TRANSACTIONS DO NOT LEND THEMSELVES TO THE
ABUSES THAT UNDERLAY THE ENACTMENT OF ^ 16 (B).  THE DRAFTSMEN
CAREFULLY WEIGHED THIS EVENTUALITY AND OPTED FOR A BRIGHT-LINE RULE. 
AS THOMAS CORCORAN STATED:  "YOU HAVE TO HAVE A GENERAL RULE.  IN
PARTICULAR TRANSACTIONS IT MIGHT WORK A HARDSHIP, BUT THOSE
TRANSACTIONS THAT ARE A HARDSHIP REPRESENT THE SACRIFICE TO THE
NECESSITY OF HAVING A GENERAL RULE."  /9/ 

[[HC611'(ORIGINAL DOCUMENT PAGE 611)'     THE VERY CONSTRUCTION OF ^
16 (B) REINFORCES THE CONCLUSION THAT THE SECTION IS BASED IN THE FIRST
INSTANCE /10/ ON A TOTALLY OBJECTIVE APPRAISAL OF THE RELEVANT
TRANSACTIONS.  /11/  SEE SMOLOWE V. DELENDO CORP., SUPRA, AT 236.  HAD
THE DRAFTSMEN INTENDED THAT THE OPERATION OF THE SECTION HINGE ON ABUSE
OF ACCESS TO INSIDE INFORMATION IT WOULD HAVE BEEN ANOMALOUS TO LIMIT
THE SECTION TO PURCHASES AND SALES OCCURRING WITHIN SIX MONTHS.  /12/
INDEED, THE PURPOSE OF THE SIX-MONTH LIMITATION, COUPLED WITH THE
DEFINITION OF AN INSIDER, WAS TO CREATE A CONCLUSIVE PRESUMPTION THAT
AN INSIDER WHO TURNS A SHORT-SWING PROFIT IN THE STOCK OF HIS
CORPORATION HAD ACCESS TO INSIDE INFORMATION AND CAPITALIZED ON THAT
INFORMATION BY SPECULATING IN THE STOCK.  BUT, THE MAJORITY DEPARTS
FROM THE BENIGN EFFECTS OF THIS PRESUMPTION WHEN IT ASSUMES THAT IT IS
"TOTALLY UNREALISTIC TO ASSUME OR INFER FROM THE FACTS BEFORE US THAT
OCCIDENTAL EITHER HAD OR WAS LIKELY TO HAVE ACCESS TO INSIDE
INFORMATION.  . . "  ANTE, AT 596.  THE MAJORITY ABIDES BY THIS
ASSUMPTION EVEN FOR THAT PERIOD AFTER WHICH OCCIDENTAL BECAME A 10%
SHAREHOLDER AND THEN EXTENDED ITS TENDER OFFER IN ORDER TO PURCHASE
ADDITIONAL OLD KERN SHARES. 

THE MAJORITY TAKES HEART FROM THOSE DECISIONS OF LOWER FEDERAL
COURTS WHICH ENDORSE A "PRAGMATIC" APPROACH TO ^ 16 (B). 

[[HC612'(ORIGINAL DOCUMENT PAGE 612)'  MANY INVOLVED THE QUESTION
WHETHER A CONVERSION OF ONE SECURITY OF AN ISSUER INTO ANOTHER SECURITY
OF THE SAME ISSUER CONSTITUTED A PURCHASE OF A SALE.  /13/  IT WOULD
SERVE NO PURPOSE TO PARSE THEIR HOLDINGS BECAUSE AS LOUIS LOSS
DESCRIBES, THEY HAVE A "GENERALIZATION-DEFYING NATURE."  /14/  IN 1966
THE SECURITIES AND EXCHANGE COMMISSION EXERCISED ITS EXEMPTIVE POWER
UNDER ^ 16 (B) TO ADOPT RULE 16B - 9, /15/  WHICH UNDER SPECIFIED
CONDITIONS EXCLUDES A CONVERSION FROM THE OPERATION OF ^ 16 (B).  THIS
RULE WILL RELIEVE THE COURTS OF MUCH OF THE BURDEN THAT HAS DEVELOPED
FROM AD HOC ANALYSES IN THIS NARROW AREA.  BUT, BY SANCTIONING THE
APPROACH OF THESE CASES, THE MAJORITY BRINGS TO FRUITION LOUIS LOSS'
PROPHECY THAT THEY WILL "CONTINUE TO RULE US FROM THEIR GRAVES,"  /16/
FOR HENCEFORTH THEY CERTAINLY WILL BE APPLIED BY ANALOGY TO THE AREA OF
MERGERS AND OTHER CONSOLIDATIONS. 

THUS, THE COURTS WILL BE CAUGHT UP IN AN AD HOC ANALYSIS OF EACH
TRANSACTION, DETERMINING BOTH FROM THE ECONOMICS OF THE TRANSACTION AND
THE MODUS OPERANDI OF THE INSIDER WHETHER THERE EXISTS THE POSSIBILITY
OF SPECULATIVE ABUSE TO ADMINISTER AND BY ITS CLEARCUT TERMS
DISCOURAGES LITIGATION, WE HAVE INSTEAD A SECTION THAT FOSTERS
LITIGATION BECAUSE THE COURT'S DECISION HOLDS OUT THE HOPE FOR THE
INSIDER THAT HE MAY AVOID ^ 16 (B) LIABILITY.  IN SHORT, THE MAJORITY
DESTROYS MUCH OF THE SECTION'S PROPHYLACTIC EFFECT.  I WOULD BE THE
FIRST TO AGREE THAT "(EVERY TRANSACTION WHICH CAN REASONABLY BE DEFINED
AS A PURCHASE (SHOULD) BE SO DEFINED, IF THE TRANSACTION IS OF A KIND
WHICH CAN POSSIBLY LEND ITSLEF TO THE SPECULATION ENCOMPASSED BY

[[HC613'(ORIGINAL DOCUMENT PAGE 613)'  FERRAIOLO V. NEWMAN, 259 F.2D
342, 345 (CA6 1958) (STEWART, J., THEN CIRCUIT JUDGE).  SEE ALSO
RELIANCE ELECTRIC CO. V. EMERSON ELECTRIC CO., 404 U.S., AT 424. 
CERTAINLY WE CANNOT ALLOW TRANSACTIONS WHICH PRESENT THE POSSIBILITY OF
ABUSE BUT DO NOT FALL WITHIN THE CLASSIC CONCEPTION OF A PURCHASE OR
SALE TO ESCAPE THE CONFINES OF ^ 16 (B).  IT IS ONE THING TO INTERPRET
THE TERMS "PURCHASE" AND "SALE"  LIBERALLY IN ORDER TO INCLUDE THOSE
TRANSACTIONS WHICH EVIDENCE THE EVIL CONGRESS SOUGHT TO ELIMINATE; IT
IS QUITE ANOTHER TO ABANDON THE BRIGHT-LINE TEST OF ^ 16 (B) FOR THOSE
TRANSACTIONS WHICH CLEARLY FALL WITHIN ITS LITERAL BOUNDS.  SECTION 16
(B), BECAUSE OF THE SIX-MONTH LIMITATION, ALLOWS SOME TO ESCAPE WHO
HAVE ABUSED THEIR INSIDE INFORMATION.  IT SHOULD NOT BE SURPRISING,
GIVEN THE OBJECTIVE NATURE OF THE RULE, IF SOME ARE CAUGHT
UNWILLINGLY. 

IN RELIANCE ELECTRIC, SUPRA, AT 422, THE COURT QUOTED WITH APPROVAL
THE FOLLOWING LANGUAGE FROM BERSHAD V. MCDONOUGH, 428 F.2D 693, 696
(CA7 1970): 

     "IN ORDER TO ACHIEVE ITS GOALS, CONGRESS CHOSE A RELATIVELY

  ARBITRARY RULE CAPABLE OF EASY ADMINISTRATION.  THE OBJECTIVE

  STANDARD OF SECTION 16 (B) IMPOSES STRICT LIABILITY UPON

  SUBSTANTIALLY ALL TRANSACTIONS OCCURRING WITHIN THE STATUTORY

  TIME PERIOD, REGARDLESS OF THE INTENT OF THE INSIDER OR THE

  EXISTENCE OF ACTUAL SPECULATION.  THIS APPROACH MAXIMIZED THE

  ABILITY OF THE RULE TO ERADICATE SPECULATIVE ABUSES BY REDUCING

  DIFFICULTIES IN PROOF.  SUCH ARBITRARY AND SWEEPING COVERAGE WAS

  DEEMED NECESSARY TO INSURE THE THE OPTIMUM PROPHYLACTIC EFFECT." 

IT IS THIS "OBJECTIVE STANDARD" THAT THE COURT HUNG TO SO
TENACIOUSLY IN RELIANCE ELECTRIC, BUT NOW APPARENTLY WOULD ABANDON TO A
LARGE EXTENT.  IN MY VIEW, THE COURT IMPROPERLY TAKES UPON ITSELF THE
TASK OF REFASHIONING THE CONTOURS OF ^ 16 (B) /17/  AND CHANGING ITS
ESSENTAIL THRUST. 

[[HC614'(ORIGINAL DOCUMENT PAGE 614)'

        II 

ALTHOUGH I CONCLUDE THAT THE JUDGMENT BELOW SHOULD BE REVERSED ON
THE GROUNDS THAT THE EXCHANGE OF SHARES CONSTITUTED A SALE, I COULD NOT
CONCLUDE THAT IT WAS PROPER FOR THE COURT OF APPEALS TO DIRECT ENTRY OF
SUMMARY JUDGMENT IN FAVOR OF OCCIDENTAL EVEN IF I ACCEPTED THE MAJORITY
APPROACH TO ^ 16 (B).  IT DID THIS NOTWITHSTANDING THE FAILURE OF
OCCIDENTAL TO MOVE FOR SUMMARY JUDGMENT IN THE DISTRICT COURT.  TO SAY
THE LEAST, THIS IS AN EXTRAORDINARY PROCEDURE.  /18/  EVEN IF IT CAN BE
JUSTIFIED IN THE MOST LIMITED CIRCUMSTANCES--FOR EXAMPLE, WHERE THE
RECORD BELOW LEFT NO DOUBT WHATSOEVER THAT THE NONMOVING PARTY WAS
ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW--THIS IS NOT SUCH A
CASE. 

THE DISTRICT COURT CONCLUDED THAT "(IN CONSEQUENCE OF THE OPTION
AGREEMENT, OCCIDENTAL DISPOSED OF ITS HOLDINGS IN OLD KERN STOCK AT A
PROFIT OF ABOUT $20 PER SHARE.  . . . THIS PROFIT FALLS WITHIN THE
MEANING AND PURVIEW OF SECTION 16 (B).  . . ."  323 F.SUPP.  570, 579 -
580.  SINCE THE ACTUAL SALE PURSUANT TO THE EXERCISE OF THE OPTION DID
NOT OCCUR WITHIN THE SIX-MONTH PERIOD, THE ONLY REASONABLE
INTERPRETATION OF THIS CONCLUSION OF LAW IS THAT THE DISTRICT COURT
FOUND THAT THE EXECUTION OF THE OPTION WAS IN FACT AND SUBSTANCE A
SALE.  THE MAJORITY DOES NOT CONTEST THAT AN OPTION AGREEMENT MAY BE IN
ECONOMIC REALITY A SALE. 

[[HC615'(ORIGINAL DOCUMENT PAGE 615)'  SEE BERSHAD V. MCDONOUGH,
SUPRA.  IT DISTINGUISHES BUT DOES NOT REJECT BERSHAD.  RATHER, THE
MAJORITY CAN "SEE NO SATISFACTORY BASIS OR REASON FOR DISAGREEING" WITH
THE COURT OF APPEALS, WHICH CONCLUDED THAT THERE IS "NO BASIS" FOR A
FINDING THAT OCCIDENTAL'S OLD KERN STOCK WAS "SOLD" UPON EXECUTION OF
THE OPTION.  /19/  I CANNOT AGREE. 

IN BERSHAD, THE DEFENDANTS, WHO HAD PURCHASED APPROXIMATELY 18% OF
THE OUTSTANDING SHARES OF CUDAHY CO. AT $6.75 PER SHARE, EXECUTED AN
OPTION OBLIGATING THEMSELVES TO SELL THE SHARES AT $9 PER SHARE.  THE
MARKET PRICE OF THE SHARES WAS THEN $9.125.  THE OPTIONEE PAID $350,000
(14% OF THE PURCHASE PRICE) FOR THE OPTION, TO BE APPLIED AGAINST THE
PURCHASE PRICE IN THE EVENT OF EXERCISE AND FORFEITED IN THE EVENT OF
NONEXERCISE.  IN ADDITION, DEFENDANTS GAVE THE OPTIONEE AN IRREVOCABLE
PROXY WITH RESPECT TO THE OPTIONED STOCK, AND DEFENDANT MCDONOUGH AND
HIS COLLEAGUES RESIGNED FROM THE CUDAHY BOARD OF DIRECTORS.  THE COURT
OF APPEALS ALSO FOUND THAT "(THE CIRCUMSTANCES OF THE TRANSACTIONS
CLEARLY INDICATE THAT THE STOCK WAS EFFECTIVELY TRANSFERRED, FOR ALL
PRACTICAL PURPOSES, LONG BEFORE THE EXERCISE OF THE OPTION."  428 F.2D,
AT 698. 

BY COMPARISON, THE EXERCISE PRICE HERE WAS $105, AND THE PREMIUM TO
SECURE THE OPTION WAS $10 PER SHARE, OR $8,866,230, ALSO TO BE CREDITED
AGAINST THE PURCHASE PRICE IF THE OPTION WERE EXERCISED AND FORREITED
IN THE EVENT OF NONEXERCISE IF THE MERGER WAS CONSUMMATED.  THUS, THE
EFFECTIVE EXERCISE PRICE WAS NEARLY 10% BELOW THE ESTIMATED VALUE OF
THE TENNECO SHARES TO BE RECEIVED IN THE CONSOLIDATION.  /20/ 

[[HC616'(ORIGINAL DOCUMENT PAGE 616)'  WHEN THE OPTION WAS EXECUTED,
OCCIDENTAL'S ATTORNEY WAS AUTHORIZED TO VOTE OCCIDENTAL'S OLD KERN
SHARES IN FAVOR OF THE TENNECO ACQUISITION, AND IT WAS NOT UNTIL IT WAS
APPARENT THAT OCCIDENTAL'S VOTE WAS NOT NEEDED THAT OCCIDENTAL'S
ATTORNEY WAS RELIEVED OF HIS OBLIGATION.  OCCIDENTAL ALSO ABANDONED ITS
DEMAND FOR TWO SEATS ON OLD KERN'S BOARD, AS WELL AS ITS LITIGATION FOR
INSPECTION OF OLD KERN'S BOOKS AND RECORDS. 

IN CONCLUDING THAT THIS CASE WAS NOT CONTROLLED BY BERSHAD, THE
COURT OF APPEALS EMPHASIZED THE UNDISPUTED TESTIMONY /21/  THAT THE
FORFEITABLE DOWN PAYMENT WAS A REASONABLE, NONCOERCIVE PRICE.  THE
BASIS FOR THIS WAS THE DEPOSITION OF ONE OF OCCIDENTAL'S VICE
PRESIDENTS STATING THAT A NEW YORK INVESTMENT FIRM HAD ADVISED HIM THAT
$9 TO $12 PER SHARE WAS A REASONABLE PREMIUM FOR AN OPTION ON STOCK
SELLING AT $95.  THIS DEPOSITION SHOULD NOT SUFFICE TO SUPPORT SUMMARY
JUDGMENT.  FIRST, IT IS NOT CLEAR WHAT ASSUMPTIONS THE INVESTMENT FIRM
HAD MADE IN GIVING THIS ADVICE.  SECOND, WHILE IT MAY BE THAT $10 PER
SHARE PREMIUM WAS A REASONABLE PRICE FOR AN OPTION BASED UPON FACTORS
AVAILABLE TO THE GENERAL INVESTING PUBLIC, IT IS BY NO MEANS CLEAR THAT
AN OPTION EXECUTED BY TWO PARTIES PRIVY TO INSIDE INFORMATION SHOULD BE
JUDGED ON THE SAME TERMS.  /22/ 

[[HC617'(ORIGINAL DOCUMENT PAGE 617)'  IT MAY BE THAT UNDER THE
CIRCUMSTANCES PRESENT HERE THE EVENTUAL EXERCISE OF THE OPTION WAS A
"SURE THING."  IN SHORT, OCCIDENTAL MAY HAVE KNOWN THAT IT WAS "LOCKED
INTO" A $17 MILLION PROFIT.  /23/  FINALLY, IT HAS NOT BEEN DETERMINED
WHAT EFFECT, IF ANY, THE VERY SIZE OF THE DOWN PAYMENT--NEARLY $9
MILLION--HAD ON THE EVENTUAL EXERCISE.  WITH THESE UNCERTAINTIES AND IN
VIEW OF THE HOLDING OF THE DISTRICT COURT THAT THE OPTION AGREEMENT
CONSTITUTED A SALE, AT THE VERY LEAST THE CASE SHOULD HAVE BEEN
REMANDED TO THE DISTRICT COURT FOR A HEARING ON WHETHER THE TERMS OF
THE OPTION "COMPELLED" ITS EXERCISE.  SEE MOURNING V. FAMILY
PUBLICATIONS SERVICE, INC., ANTE, P. 356, AT 383 (DOUGLAS, J.,
DISSENTING); WHITE MOTOR CO. V. UNITED STATES, 372 U.S. 253, 263; 6 J.
MOORE, FEDERAL PRACTICE PARA. 56.12, P. 2243 (2D ED. 1972). 

[[DFN 

/1/  SECTION 16 (B) PROVIDES IN FULL: 

"FOR THE PURPOSE OF PREVENTING THE UNFAIR USE OF INFORMATION WHICH
MAY HAVE BEEN OBTAINED BY SUCH BENEFICIAL OWNER, DIRECTOR, OR OFFICER
BY REASON OF HIS RELATIONSHIP TO THE ISSUER, ANY PROFIT REALIZED BY HIM
FROM ANY PURCHASE AND SALE, OR ANY SALE AND PURCHASE, OF ANY EQUITY
SECURITY OF SUCH ISSUER (OTHER THAN AN EXEMPTED SECURITY) WITHIN ANY
PERIOD OF LESS THAN SIX MONTHS, UNLESS SUCH SECURITY WAS ACQUIRED IN
GOOD FAITH IN CONNECTION WITH A DEBT PREVIOUSLY CONTRACTED, SHALL INURE
TO AND BE RECOVERABLE BY THE ISSUER, IRRESPECTIVE OF ANY INTENTION ON
THE PART OF SUCH BENEFICIAL OWNER, DIRECTOR, OR OFFICER IN ENTERING
INTO SUCH TRANSACTION OF HOLDING THE SECURITY PURCHASED OR OF NOT
REPURCHASING THE SECURITY SOLD FOR A PERIOD EXCEEDING SIX MONTHS.  SUIT
TO RECOVER SUCH PROFIT MAY BE INSTITUTED AT LAW OR IN EQUITY IN ANY
COURT OF COMPETENT JURISDICTION BY THE ISSUER, OR BY THE OWNER OF ANY
SECURITY OF THE ISSUER IN THE NAME AND IN BEHALF OF THE ISSUER IF THE
ISSUER SHALL FAIL OR REFUSE TO BRING SUCH SUIT WITHIN SIXTY DAYS AFTER
REQUEST OR SHALL FAIL DILIGENTLY TO PROSECUTE THE SAME THEREAFTER; BUT
NO SUCH SUIT SHALL BE BROUGHT MORE THAN TWO YEARS AFTER THE DATE SUCH
PROFIT WAS REALIZED.  THIS SUBSECTION SHALL NOT BE CONSTRUED TO COVER
ANY TRANSACTION WHERE SUCH BENEFICIAL OWNER WAS NOT SUCH BOTH AT THE
TIME OF THE PURCHASE AND SALE, OR THE SALE AND PURCHASE, OF THE
SECURITY INVOLVED, OR ANY TRANSACTION OR TRANSACTIONS WHICH THE
COMMISSION BY RULES AND REGULATIONS MAY EXEMPT AS NOT COMPREHENDED
WITHIN THE PURPOSE OF THIS SUBSECTION."  15 U.S.C. ^ 78P (B). 

/2/  THE TERM "PURCHASE" INCLUDES "ANY CONTRACT TO BUY, PURCHASE, OR
OTHERWISE ACQUIRE."  15 U.S.C. ^ 78C (A) (13).  A "BENEFICIAL OWNER" IS
ONE WHO OWNS "MORE THAN 10 PER CENTUM OF ANY CLASS OF ANY EQUITY
SECURITY (OTHER THAN AN EXEMPTED SECURITY) WHICH IS REGISTERED PURSUANT
TO SECTION 78L (^ 12) OF THIS TITLE."  ID., ^ 78P A).  THE DISTRICT
COURT HELD THAT "(THE TENDER OFFER CONSTITUTED A SINGLE ACT OF
OCCIDENTAL, WHEREBY THE COMPANY BECAME A BENEFICIAL OWNER OF MORE THAN
10 PERCENT OF OLD KERN'S CAPITAL STOCK."  323 F.SUPP.  570, 579.  THUS,
THE DISTRICT COURT RULED THAT THE PROFIT MADE ON ALL STOCK PURCHASED IN
THE TENDER OFFER, NOT ONLY THE PROFIT ON THE PURCHASES IN EXCESS OF
10%, WOULD HAVE TO BE SURRENDERED.  THE COURT OF APPEALS DID NOT REACH
THIS ISSUE. 

/3/  THIS IS NOT A CASE WHERE THE STOCK SURRENDERED AND THE STOCK
RECEIVED IN THE EXCHANGE WERE ECONOMIC EQUIVALENTS.  CF., E.G., BLAU V.
LAMB, 363 F.2D 507, 523 - 525 (CA1 1966); BLAU V. MAX FACTOR & CO., 342
F.2D 304, 308 - 309 (CA9 1965). 

AN EXCHANGE OF SECURITIES IN DIFFERENT COMPANIES IS A "PURCHASE"  OR
"SALE" FOR PURPOSES OF ^ 10 (B).  E.G., SEC V. NATIONAL SECURITIES,
INC., 393 U.S. 453; DASHO V. SUSQUEHANNA CORP., 380 F.2D 262 (CA7
1967). 

/4/  JUDGE CLARK, IN PARK & TILFORD V. SCHULTE, ADOPTED A
STRAIGHTFORWARD APPROACH TO DEFINING "ACQUISITION":  "DEFENDANTS DID
NOT OWN THE COMMON STOCK IN QUESTION BEFORE THEY EXERCISED THEIR OPTION
TO CONVERT; THEY DID AFTERWARD.  THEREFORE THEY ACQUIRED THE STOCK,
WITHIN THE MEANING OF THE ACT."  160 F.2D 984, 987.  THE SAME ANALYSIS
HOLDS FOR "DISPOSITION." 

/5/  EXAMPLES OF THIS PRACTICE ARE CHRONICLED ELSEWHERE.  SEE, E.G.,
RELIANCE ELECTRIC CO. V. EMERSON ELECTRIC CO., 404 U.S. 418, 429 - 430
AND NN. 3 - 6 (DOUGLAS, J., DISSENTING) AND SOURCES CITED THEREIN.  IT
WOULD SERVE NO PURPOSE TO RECOUNT THEM HERE. 

/6/  HEARINGS ON STOCK EXCHANGE PRACTICES BEFORE THE SENATE
COMMITTEE ON BANKING AND CURRENCY, 73D CONG., 2D SESS., PT. 15, P. 6557
(1934).     /7/  SEE RECENT CASES, 84 HARV. L. REV. 1012, 1018 (1971). 

/8/  LETTER OF NOV. 24, 1965. 

/9/  HEARINGS, SUPRA, N.6, AT 6558. 

/10/  THE OBJECTIVE APPROACH MAY HAVE TO YIELD TO A MORE FLEXIBLE
INTERPRETATION OF THE TERMS "PURCHASE" AND "SALE" TO INCLUDE
TRANSACTIONS WHICH PRESENT THE EVIL CONGRESS SOUGHT TO ELIMINATE OR
TRANSACTIONS WHICH ARE DESIGNED TO EVADE ) ^16 (B).  SEE DISCUSSION,
INFRA, AT 612 - 613. 

/11/  THE PREAMBLE OF THE SECTION, WHICH EXPRESSES THE PURPOSE OF
THE SECTION, WAS INTENDED TO AID IN ESTABLISHING THE CONSTITUTIONALITY
OF THE SECTION AND GUIDING THE COMMISSION'S RULEMAKING AUTHORITY.  SEE
SMOLOWE V. DELENDO CORP., 136 F.2D 231, 236 (CA2 1943); 2 L. LOSS,
SECURITIES REGULATION 1041 (2D ED. 1961). 

/12/  IN ADDITION, THERE WOULD HAVE BEEN NO REASON TO EXEMPT
TRANSACTIONS WHEREIN THE "SECURITY WAS ACQUIRED IN GOOD FAITH IN
CONNECTION WITH A DEBT PREVIOUSLY CONTRACTED.  . . ." 

/13/  SEE, E.G., ROBERTS V. EATON, 212 F.2D 82 (CA2 1954); FERRAIOLO
V. NEWMAN, 359 F.2D 342 (CA6 1958); BLAU V. MAX FACTOR & CO., 342 F.2D
304 (CA9 1965); BLAU V. LAMB, 363 F.2D 507 (CA2 1966); PETTEYS V.
BUTLER, 367 F.2D 528 (CA8 1966). 

/14/  5 L. LOSS, SECURITIES REGULATION 3029 (SUPP. TO 2D ED. 1969). 

/15/  SECURITIES EXCHANGE ACT RELEASE 7826. 

/16/  5 L. LOSS, SECURITIES REGULATION 3029 (SUPP. TO 2D ED. 1969). 

/17/  OCCIDENTAL UNSUCCESSFULLY SOUGHT TO HAVE THE SECURITIES AND
EXCHANGE COMMISSION ADOPT A RULE WHICH WOULD HAVE EXEMPTED THIS
EXCHANGE.  NO INFERENCES SHOULD BE DRAWN FROM THIS REFUSAL.  BUT, I DO
BELIEVE THAT, GIVEN THE STRUCTURE AND POLICIES OF ^ 16 (B), ANY
"EXEMPTING" IS BEST LEFT TO THE COMMISSION AND CONGRESS.  SEE HELI-COIL
CORP. V. WEBSTER, 352 F.2D 156, 165 - 166 (CA3 1965). 

/18/  SEE GENERALLY 6 J. MOORE, FEDERAL PRACTICE PARA. 56.12 (2D ED.
1972). 

/19/  THE COURT OF APPEALS ALSO CONCLUDED THAT THE DISTRICT COURT
HAD MADE NO SUCH FINDING.  FOR THE REASONS INDICATED ABOVE, I DO NOT
AGREE.  IN ANY EVENT, I PRESUME THAT THE COURT OF APPEALS, HAD IT
CONFRONTED SUCH A FINDING, WOULD HAVE DETERMINED THAT IT WAS CLEARLY
ERRONEOUS. 

/20/  RESPONDENT ARGUES THAT, UNLIKE BERSHAD, THE EFFECTIVE EXERCISE
PRICE WAS NOT BELOW THE CURRENT MARKET VALUE BECAUSE THE OLD KERN
SHARES NEVER SOLD FOR MORE THAN $94.75.  IT CONTENDS THAT THIS TRADING
PRICE REFLECTED THE KERN BOARD'S ACCEPTANCE OF THE PROPOSED
CONSOLIDATION.  BUT, IT IS COMMON FOR A STOCK WHICH MAY BE EXCHANGED TO
SELL AT A DISCOUNT FROM THE STOCK TO BE RECEIVED UNTIL THE EXCHANGE
BECOMES A CERTAINTY.  THIS DISCOUNT REFLECTS THE RISK THAT THE EXCHANGE
MAY NOT BE CONSUMMATED.  THE OPTION AGREEMENT PROVIDED THAT THE PREMIUM
WOULD BE RETURNED IF THERE WERE NO EXCHANGE.  THUS, WE MUST APPRAISE
THIS TRANSACTION ON THE ASSUMPTION THAT THE CONSOLIDATION WOULD BE
APPROVED AND ACCOMPLISHED. 

/21/  PETITIONER CONTENDS HERE THAT IT DID NOT BELIEVE THAT IT WAS
NECESSARY TO REBUT THIS HEARSAY TESTIMONY IN ORDER TO PREVAIL ON ITS
MOTION FOR SUMMARY JUDGMENT; MOREOVER, IT WAS NOT FACED WITH A CROSS
MOTION. 

/22/  ALTHOUGH OCCIDENTAL MAY NOT HAVE BEEN TENNECO'S "ALLY,"  AS
THE MAJORITY INDICATES, IT WAS IN THEIR MUTUAL INTEREST TO ARRANGE FOR
A SATISFACTORY OPTION AGREEMENT. 

/23/  SHORTLY AFTER THE OPTION WAS EXERCISED, ARMAND HAMMER, THE
PRESIDENT OF OCCIDENTAL, COMMENTED ON THE PROFIT OF $17 MILLION THAT
OCCIDENTAL EXPECTED.  IN HIS MIND, IT WAS "NOT BAD FOR TWO WEEKS'
WORK." 

DAVID R. HYDE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS
WERE F. ARNOLD DAUM, WILLIAM E. HEGARTY, AND IMMANUEL KOHN. 

WHITNEY NORTH SEYMOUR ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE LOUIS NIZER, PAUL MARTINSON, AND BERNHARDT K. WRUBLE. 
..END :










GACA V. UNITED STATES, 411 U.S. 618 


       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE THIRD CIRCUIT

       NO. 72 - 6011.  DECIDED MAY 7, 1973; CERTIORARI GRANTED;

           VACATED AND REMANDED. 


    REINSTATEMENT, UNOPPOSED BY SOLICITOR GENERAL, OF IN FORMA

  PAUPERIS APPEAL THAT HAD BEEN DISMISSED FOR FAILURE TO PAY FILING

  FEE, DIRECTED IN EXERCISE OF COURT'S SUPERVIOSRY POWERS. 

PER CURIAM. 

PETITIONER WAS CONVICTED IN UNITED STATES DISTRICT COURT OF ILLEGAL
WIRETAPPING UNDER 18 U.S.C. ^ 2511.  HIS APPEAL WAS DISMISSED FOR WANT
OF TIMELY PROSECUTION WHEN HE FAILED TO PAY A $25 FILING FEE. 
PETITIONER CONTENDS THAT HE THOUGHT PAYMENT OF THE FEE UNNECESSARY
BECAUSE HE HAD BEEN GRANTED LEAVE TO APPEAL IN FORMA PAUPERIS BY THE
DISTRICT JUDGE. 

IN HIS MEMORANDUM BEFORE THIS COURT, THE SOLICITOR GENERAL STATES
THAT THE UNITED STATES DOES NOT OPPOSE A REMAND TO REINSTATE THE APPEAL
IN THE EXERCISE OF THIS COURT'S SUPERVISORY POWERS IN ORDER TO AVOID
POSSIBLE INJUSTICE AND THE POSSIBILITY OF COLLATERAL ATTACK UPON THE
CONVICTION.  IN LIGHT OF THIS REPRESENTATION, AND UPON OUR INDEPENDENT
EXAMINATION OF THE RECORD, THE MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND THE PETITION FOR CERTIORARI ARE GRANTED AND THE CASE IS
VACATED AND REMANDED WITH INSTRUCTIONS THAT THE APPEAL BE REINSTATED. 

     IT IS SO ORDERED. 

[[DOP 

MR. JUSTICE WHITE AND MR. JUSTICE REHNQUIST DISSENT. 
..END :











NEW JERSEY WELFARE RIGHTS ORGANIZATION V. CAHILL, 411 U.S. 619 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NEW JERSEY 

NO. 72 - 6258.  DECIDED MAY 7, 1973; 349 F.SUPP.  491, REVERSED. 


    STATUTE LIMITING BENEFITS OF THE "ASSISTANCE TO FAMILIES OF THE

  WORKING POOR" PROGRAM TO THOSE HOUSEHOLDS IN WHICH THE PARENTS

  ARE CEREMONIALLY MARRIED AND THE CHILDREN, IF NATURAL, ARE

  ADOPTED DENIES EQUAL PROTECTION TO ILLEGITIMATE CHILDREN. 

PER CURIAM. 

THIS CASE PRESENTS THE QUESTION OF THE CONSTITUTIONALITY UNDER THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE NEW JERSEY
"ASSISTANCE TO FAMILIES OF THE WORKING POOR" PROGRAM, N.J. STAT. ANN. ^
44:13 - 1 ET SEQ., THAT ALLEGEDLY DISCRIMINATES AGAINST ILLEGITIMATE
CHILDREN IN THE PROVISION OF FINANCIAL ASSISTANCE AND OTHER SERVICES. 
SPECIFICALLY, APPELLANTS CHALLENGE THAT ASPECT OF THE PROGRAM THAT
LIMITS BENEFITS TO ONLY THOSE OTHERWISE QUALIFIED FAMILIES "WHICH
CONSIST OF A HOUSEHOLD COMPOSED OF TWO ADULTS OF THE OPPOSITE SEX
CEREMONIALLY MARRIED TO EACH OTHER WHO HAVE AT LEAST ONE MINOR CHILD .
. . OF BOTH, THE NATURAL CHILD OF ONE AND ADOPTED BY THE OTHER, OR A
CHILD ADOPTED BY BOTH.  . . ."  N.J. STAT. ANN. ^ 44:13 - 3 (A). 
APPELLANTS DO NOT CHALLENGE THE STATUTE'S "HOUSEHOLD" REQUIREMENT. 
RATHER, THEY ARGUE THAT ALTHOUGH THE CHALLENGED CLASSIFICATIONS TURNS
UPON THE MARITAL STATUS OF THE PARENTS AS WELL AS UPON THE PARENT-CHILD
RELATIONSHIP, IN PRACTICAL EFFECT IT OPERATES ALMOST INVARIABLY TO DENY
BENEFITS TO ILLEGITIMATE CHILDREN WHILE GRANTING BENEFITS TO THOSE
CHILDREN WHO ARE LEGITIMATE. 

[[HC620'(ORIGINAL DOCUMENT PAGE 620)'  ALTHOUGH APPARENTLY CONCEDING
THE CORRECTNESS OF THIS POSITION, THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF NEW JERSEY, SITTING AS A THREE-JUDGE COURT,
/1/  UPHELD THE STATUTORY SCHEME ON THE GROUND THAT IT WAS DESIGNED "TO
PRESERVE AND STRENGTHEN FAMILY LIFE."  349 F.SUPP.  491, 496 (1972). 

CONFRONTED WITH SIMILAR ARGUMENTS IN THE PAST, WE HAVE SPECIFICALLY
DECLARED THAT: 

     "THE STATUS OF ILLEGITIMACY HAS EXPRESSED THROUGH THE AGES

  SOCIETY'S CONDEMNATION OF IRRESPONSIBLE LIAISONS BEYOND THE BONDS

  OF MARRIAGE.  BUT VISITING THIS CONDEMNATION ON THE HEAD OF AN

  INFANT IS ILLOGICAL AND UNJUST.  MOREOVER, IMPOSING DISABILITIES

  ON THE ILLEGITIMATE CHILD IS CONTRARY TO THE BASIC CONCEPT OF OUR

  SYSTEM THAT LEGAL BURDENS SHOULD BEAR SOME RELATIONSHIP TO

  INDIVIDUAL RESPONSIBILITY OR WRONGDOING.  OBVIOUSLY, NO CHILD IS

  RESPONSIBLE FOR HIS BIRTH AND PENALIZING THE ILLEGITIMATE CHILD

  IS AN INEFFECTUAL--AS WELL AS AN UNJUST--WAY OF DETERRING THE

  PARENT."  WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164, 175

  (1972). 

THUS, IN WEBER WE HELD THAT UNDER THE EQUAL PROTECTION CLAUSE A
STATE MAY NOT EXCLUDE ILLEGITIMATE CHILDREN FROM SHARING EQUALLY WITH
OTHER CHILDREN IN THE RECOVERY OF WORKMEN'S COMPENSATION BENEFITS FOR
THE DEATH OF THEIR PARENT.  SIMILARLY, IN LEVY V. LOUISIANA, 391 U.S.
68 (1968), WE HELD THAT A STATE MAY NOT CREATE A RIGHT OF ACTION IN
FAVOR OF CHILDREN FOR THE WRONGFUL DEATH OF A PARENT AND EXCLUDE
ILLEGITIMATE CHILDREN FROM THE BENEFIT OF SUCH A RIGHT. 

[[HC621'(ORIGINAL DOCUMENT PAGE 621)'  AND ONLY THIS TERM, IN GOMEZ
V. PEREZ, 409 U.S. 535 (1973), WE HELD THAT ONCE A STATE POSITS A
JUDICIALLY ENFORCEABLE RIGHT ON BEHALF OF CHILDREN TO NEEDED SUPPORT
FROM THEIR NATURAL FATHER, THERE IS NO CONSTITUTIONALLY SUFFICIENT
JUSTIFICATION FOR DENYING SUCH AN ESSENTIAL RIGHT TO ILLEGITIMATE
CHILDREN.  SEE ALSO DAVIS V. RICHARDSON, 342 F.SUPP.  588 (CONN.),
AFF'D, 409 U.S. 1069 (1972); GRIFFIN V. RICHARDSON, 346 F.SUPP.  1226
(MD.), AFF'D, 409 U.S. 1069 (1972). 

THOSE DECISIONS COMPEL THE CONCLUSION THAT APPELLANTS' CLAIM OF THE
DENIAL OF EQUAL PROTECTION MUST BE SUSTAINED, FOR THERE CAN BE NO DOUBT
THAT THE BENEFITS EXTENDED UNDER THE CHALLENGED PROGRAM ARE AS
INDISPENSABLE TO THE HEALTH AND WELL-BEING OF ILLEGITIMATE CHILDREN AS
TO THOSE WHO ARE LEGITIMATE.  ACCORDINGLY, WE GRANT THE MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS, REVERSE THE JUDGMENT OF THE
DISTRICT COURT, AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

/1/  IN PRIOR PROCEEDINGS IN THIS CASE, A SINGLE JUDGE OF THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW JERSEY, IN AN
UNREPORTED OPINION, DENIED APPELLANTS' PETITION TO CONVENE A THREE
JUDGE COURT ON THE GROUND THAT NO SUBSTANTIAL CONSTITUTIONAL QUESTION
WAS PRESENTED, AND DISMISSED THE COMPLAINT.  ON APPEAL, THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT HELD THAT A SUBSTANTIAL
CONSTITUTIONAL CLAIM HAD BEEN PRESENTED AND THEREFORE REMANDED THE CASE
WITH DIRECTIONS TO CONVENE A THREE-JUDGE COURT.  448 F.2D 1247, 1248
(1971). 

[[DOP 

THE CHIEF JUSTICE CONCURS IN THE RESULT. 

[[DOP 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE NEW JERSEY LEGISLATURE HAS ENACTED A STATUTE ENTITLED
"ASSISTANCE TO FAMILIES OF THE WORKING POOR," WHICH IS DESIGNED TO
PROVIDE GRANTS TO SUPPLEMENT THE INCOME OF A DISCRETE CLASS OF FAMILIES
WITH CHILDREN WHEN INDEPENDENT SOURCES OF INCOME ARE INADEQUATE TO
SUPPORT THE FAMILY UNIT.  THE PROGRAM IS COMPLETELY FINANCED BY THE
STATE, AND THEREFORE NEED NOT CONFORM TO ANY OF THE STRICTURES OF THE
SOCIAL SECURITY ACT.  THE NEW JERSEY PROGRAM FOR ASSISTANCE TO THE
WORKING POOR DOES NOT PROVIDE FINANCIAL GRANTS TO CLASSES OF CHILDREN
AS SUCH, AS IS THE CASE UNDER VARIOUS FEDERAL PLANS.  INSTEAD, IT
PROVIDES GRANTS TO CLASSES OF FAMILIES AS UNITS.  THE COURT HOLDS THAT
BECAUSE BENEFITS ARE LIMITED TO FAMILIES "WHICH CONSIST OF A HOUSEHOLD
COMPOSED OF TWO ADULTS OF THE OPPOSITE SEX CEREMONIALLY MARRIED TO EACH
OTHER WHO HAVE AT LEAST ONE MINOR CHILD . . . OF BOTH, THE NATURAL
CHILD OF ONE AND ADOPTED BY THE OTHER, OR A CHILD ADOPTED BY BOTH," THE
LEGISLATIVE SCHEME VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT. 

[[HC622'(ORIGINAL DOCUMENT PAGE 622)' 

THE COURT RELIES ON WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S.
164 (1972), WHERE A LOUISIANA STATUTE THAT DENIED WORKMEN'S
COMPENSATION BENEFITS TO AN ILLEGITIMATE CHILD WAS INVALIDATED.  BUT
THE VERY LANGUAGE THAT THE COURT QUOTES FROM WEBER SHOWS HOW DIFFERENT
THIS CASE IS FROM THAT.  THERE A DISABILITY WAS VISITED SOLELY ON AN
ILLEGITIMATE CHILD.  HERE THE STATUTE DISTINGUISHES AMONG TYPES OF
FAMILIES.  WHILE THE CLASSIFICATION ADOPTED BY THE NEW JERSEY
LEGISLATURE UNDOUBTEDLY RESULTS IN DENYING BENEFITS TO "FAMILIES"
CONSISTING OF A MOTHER AND FATHER NOT CEREMONIALLY MARRIED WHO ARE
LIVING WITH NATURAL CHILDREN, WHATEVER DENIAL OF BENEFITS THE
CLASSIFICATION MAKES IS IMPOSED EQUALLY ON THE PARENTS AS WELL AS THE
CHILDREN. 

HERE THE NEW JERSEY LEGISLATURE HAS DETERMINED THAT SPECIAL
FINANCIAL ASSISTANCE SHOULD BE GIVEN TO FAMILY UNITS THAT MEET THE
STATUTORY DEFINITION OF "WORKING POOR."  IT DOES NOT SEEM TO ME
IRRATIONAL IN ESTABLISHING SUCH A SPECIAL PROGRAM TO CONDITION THE
RECEIPT OF SUCH GRANTS ON THE SORT OF CEREMONIAL MARRIAGE THAT COULD
QUITE REASONABLY BE FOUND TO BE AN ESSENTIAL INGREDIENT OF THE FAMILY
UNIT THAT THE NEW JERSEY LEGISLATURE IS TRYING TO PROTECT FROM
DISSOLUTION DUE TO THE ECONOMIC VICISSITUDES OF MODERN LIFE.  THE
CONSTITUTION DOES NOT REQUIRE THAT SPECIAL FINANCIAL ASSISTANCE
DESIGNED BY THE LEGISLATURE TO HELP POOR FAMILIES BE EXTENDED TO
"COMMUNES" AS WELL. 

IN THE AREA OF ECONOMICS AND SOCIAL WELFARE THE EQUAL PROTECTION
CLAUSE DOES NOT PROHIBIT A STATE FROM TAKING ONE STEP AT A TIME IN
ATTEMPTING TO OVERCOME A SOCIAL ILL, PROVIDED ONLY THAT THE
CLASSIFICATIONS MADE BY THE STATE ARE RATIONAL. 

[[HC623'(ORIGINAL DOCUMENT PAGE 623)'  HERE THE CLASSIFICATION IS
BASED ON A PARTICULAR TYPE OF FAMILY UNIT, ONE OF, IF NOT THE, CORE
UNITES OF OUR SOCIAL SYSTEM.  THERE BEING A RATIONAL BASIS FOR THE
LEGISLATIVE CLASSIFICATION, THE CONSTITUTIONALITY OF THE LAW IS
GOVERNED BY DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), RATHER THAN BY
WEBER. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 
..END :














MOURNING V. FAMILY PUBLICATIONS SERVICE, INC., 411 U.S. 356 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT 

     NO. 71 - 829.  ARGUED NOVEMBER 9, 1972 -- DECIDED APRIL 24,

  1973; 449 F.2D 235, REVERSED AND REMANDED. 


    PETITONER, WHO CONTRACTED TO PURCHASE MAGAZINE SUBSCRIPTIONS

  FROM RESPONDENT, BROUGHT THIS ACTION IN DISTRICT COURT, ALLEGING

  THAT RESPONDENT HAD FAILED TO COMPLY WITH THE DISCLOSURE

  PROVISIONS OF THE TRUTH IN LENDING ACT, AS IMPLEMENTED BY FEDERAL

  RESERVE BOARD "REGULATION Z."  THE DISTRICT COURT FOUND THAT

  RESPONDENT HAD EXTENDED CREDIT TO PETITIONER, PAYABLE IN MORE

  THAN FOUR INSTALLMENTS, WITHOUT MAKING THE DISCLOSURE REQUIRED BY

  THE ACT.  THE COURT OF APPEALS REVERSED, HOLDING THAT THE BOARD

HAD EXCEEDED ITS STATUTORY AUTHORITY IN ISSUING REGULATION Z

  SINCE THE REGULATION REQUIRED DISCLOSURE IN SOME CREDIT

  TRANSACTIONS IN WHICH A FINANCE CHARGE HAD NOT BEEN MADE, AND,

  ALTERNATIVELY, THAT THE REGULATION VIOLATED DUE PROCESS BY

  CREATING A CONCLUSIVE PRESUMPTION THAT CREDIT PAYMENTS MADE IN

  MORE THAN FOUR INSTALLMENTS INCLUDED A FINANCE CHARGE.  HELD: 

     1.  THE "FOUR INSTALLMENT RULE" OF REGULATION Z IS A VALID

  EXERCISE OF THE FEDERAL RESERVE BOARD'S RULEMAKING AUTHORITY

  UNDER THE TRUTH IN LENDING ACT.  PP. 363 - 375. 

     (A) CONGRESS, WHICH WAS WELL AWARE THAT MERCHANTS COULD EVADE

  THE DISCLOSURE REQUIREMENTS OF THE ACT OF CONCEALING CREDIT

  CHARGES, GAVE THE BOARD BROAD RULEMAKING POWER TO PREVENT SUCH

  EVASION, AND, IN THE EXERCISE OF THAT POWER, THE BOARD ISSUED THE

CHALLENGED RULE TO DEAL WITH THE PRACTICE OF CONCEALING FINANCE

  CHARGES IN THE CASH PRICE OF MERCHANDISE SOLD.  PP. 363 - 369. 

     (B) NO CONFLICT ARISES FROM THE FACT THAT THE ACT MENTIONS

  DISCLOSURE ONLY IN REGARD TO TRANSACTIONS IN WHICH A FINANCE

  CHARGE IS IMPOSED WHILE THE DISCLOSURE REQUIREMENTS OF THE RULE

  SOMETIMES APPLY WHERE NO SUCH CHARGE EXISTS, SINCE CONGRESS DID

  NOT ATTEMPT TO SPECIFY ALL TYPES OF SITUATIONS UNDER WHICH THE

  BOARD'S REGULATIONS MIGHT APPLY, AND THE DETERRENT EFFECT OF THE

  RULE CLEARLY IMPLEMENTS THE OBJECTIVES OF THE ACT.  PP. 372 -

373. 

     (C) THE BOARD HAD AUTHORITY TO PROMULGATE A GENERAL RULE TO

  PREVENT CIRCUMVENTION, EVEN IF THE RULE EMBRACES SOME

  TRANSACTIONS THAT THE PROVISIONS OF THE ACT MIGHT NOT ON THEIR

  FACE REACH.  VILLAGE OF EUCLID V. AMBLER REALTY CO., 272 U.S.

  365.  PP. 373 - 374. 

(D) EXISTENCE OF PENALTY PROVISIONS IN THE ACT DOES NOT REQUIRE

  A NARROW CONSTRUCTION OF THE ACT'S NONPENALTY PROVISIONS.  FCC V.

  AMERICAN BROADCASTING CO., 347 U.S. 284, DISTINGUISHED.  PP. 374

  375. 

     2.  IMPOSITON, PURSUANT TO ^ 130, OF A MINIMUM PENALTY OF $100

  IN CASES SUCH AS THIS WHERE THE FINANCE CHARGE IS NONEXISTENT OR

UNDETERMINED, BUT WHERE DISCLOSURE HAS NOT BEEN MADE, IS A

PERMISSIBLE SANCTION.  P. 376. 

     3.  IN IMPOSING A DISCLOSURE REQUIREMENT ON ALL MEMBERS OF A

  DEFINED CLASS TO DISCOURAGE EVASION BY A SUBSTANTIAL PORTION OF

  THAT CLASS, THE CHALLENGED REGULATION DOES NOT CREATE A

  CONCLUSIVE PRESUMPTION VIOLATIVE OF THE FIFTH AMENDMENT.  PP. 376

  - 377. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED AN
OPINION DISSENTING IN PART, IN WHICH STEWART AND REHNQUIST, JJ.,
JOINED, POST, P. 378.  POWELL, J., FILED A DISSENTING OPINION, POST, P.
383. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

[[HC358'(ORIGINAL DOCUMENT PAGE 358)' 

WE GRANTED THE WRIT OF CERTIORARI IN THIS CASE TO RESOLVE WHETHER
THE FEDERAL RESERVE BOARD EXCEEDED ITS AUTHORITY UNDER ^ 105 OF THE
TRUTH IN LENDING ACT /1/  IN PROMULGATING THAT PORTION OF REGULATION Z
COMMONLY REFERRED TO AS THE "FOUR INSTALLMENT RULE."  /2/ 

RESPONDENT IS A DELAWARE CORPORATION WHICH SOLICITS SUBSCRIPTIONS TO
SEVERAL WELL-KNOWN PERIODICALS.  IN 1969, ONE OF RESPONDENT'S DOOR-TO
DOOR SALESMEN CALLED ON THE PETITIONER, A 73-YEAR-OLD WIDOW RESIDING IN
FLORIDA, AND SOLD HER A FIVE-YEAR SUBSCRIPTION TO FOUR MAGAZINES. 
PETITIONER AGREED TO PAY $3.95 IMMEDIATELY AND TO REMIT A SIMILAR
AMOUNT MONTHLY FOR 30 MONTHS.  THE CONTRACT FORM SHE SIGNED CONTAINED A
CLAUSE STATING THAT THE SUBSCRIPTIONS COULD NOT BE CANCELED AND AN
ACCELERATION PROVISION SIMILAR TO THAT FOUND IN MANY INSTALLMENT
UNDERTAKINGS, PROVIDING THAT ANY DEFAULT IN INSTALLMENT PAYMENTS WOULD
RENDER THE ENTIRE BALANCE DUE.  THE CONTRACT DID NOT RECITE THE TOTAL
PURCHASE PRICE OF THE SUBSCRIPTIONS OF THE AMOUNT WHICH REMAINED UNPAID
AFTER THE INITIAL REMITTANCE, AND MADE NO REFERENCE TO SERVICE OR
FINANCE CHARGES.  THE TOTAL DEBT ASSUMED BY THE PETITIONER WAS $122.45;
THE BALANCE DUE AFTER THE INITIAL PAYMENT WAS $118.50. 

PETITIONER MADE THE INITIAL PAYMENT, BEGAN TO RECEIVE THE MAGAZINES
FOR WHICH SHE HAD CONTRACTED, AND THEN DEFAULTED.  RESPONDENT DECLARED
THE ENTIRE BALANCE OF $118.50 DUE AND THREATENED LEGAL ACTION. 
PETITIONER BROUGHT THIS SUIT IN UNITED STATES DISTRICT COURT, ALLEGING
THAT RESPONDENT HAD FAILED TO COMPLY WITH THE DISCLOSURE PROVISIONS OF
THE TRUTH IN LENDING ACT.  SHE SOUGHT RECOVERY OF THE STATUTORY PENALTY
AND REIMBURSEMENT FOR THE COSTS OF THE LITIGATION, INCLUDING REASONABLE
ATTORNEY'S FEES. 

[[HC359'(ORIGINAL DOCUMENT PAGE 359)' 

IN SUPPORT OF HER CLAIM, PETITIONER SUBMITTED TO THE DISTRICT COURT
A SERIES OF "DUNNING" LETTERS WHICH SHE HAD RECEIVED FROM RESPONDENT. 
ONE LETTER, DATED DECEMBER 16, 1969, STATED: 

    "AFTER MAKING THE TERMS OF OUR CONTRACT CLEAR TO YOU, WE WENT

  AHEAD IN GOOD FAITH AND HAD YOUR SUBSCRIPTIONS ENTERED FOR THE

  ENTIRE PERIODS YOU HAD AGREED TO TAKE.  THE CONTRACT YOU SIGNED

  IS:  NOT SUBJECT TO CANCELLATION AFTER ACCEPTANCE OR

  VERIFICATION. 

     "KNOWING, THEREFORE, THE OBLIGATIONS WE HAVE INCURRED IN YOUR

  NAME, WE FEEL CONFIDENT THAT YOU WILL CONTINUE YOUR MAGAZINE

  SUBSCRIPTIONS AND MAKE THE CONVENIENT MONTHLY PAYMENTS REGULARLY

  AND PROMPTLY."  /3/

A SECOND LETTER, RECEIVED A WEEK LATER FROM RESPONDENT'S AGENT,
DECLARED: 

     "AFTER AN ACCOUNT IS THREE MONTHS DELINQUENT IT IS BROUGHT TO

  MY ATTENTION.  I FEEL THAT YOU SHOULD REALIZE THAT YOU ARE

  RECEIVING OUR MERCHANDISE WHICH WE HAVE PAID FOR.  HAD YOU DEALT

  DIRECTLY WITH THE PUBLISHERS YOURSELF, YOU WOULD HAVE HAD TO PAY

  THEM IN ADVANCE FOR THE MAGAZINES. 

     "AGAIN, LET ME REMIND YOU THAT WE HAVE ORDERED THESE MAGAZINES

  IN ADVANCE AND THAT YOU HAVE INCURRED AN OBLIGATION TO REPAY US.

  THIS IS A CREDIT ACCOUNT, AND AS SUCH MUST BE REPAID BY YOU ON A

  MONTHLY BASIS, MUCH THE SAME AS IF YOU HAD PURCHASED ANY OTHER

  TYPE OF MERCHANDISE ON A MONTHLY BUDGET PLAN.  (EMPHASIS

  SUPPLIED; UNDERLINED WORDS ARE EMPHASIZED IN THE ORIGINAL

  LETTER)."  /4/ 

[[HC360'(ORIGINAL DOCUMENT PAGE 360)'  RESPONDENT ADMITTED SENDING
EACH OF THE ABOVE LETTERS TO PETITIONER.  /5/  IN ADDITION, RESPONDENT
SUBMITTED ONE AFFIDAVIT TO THE DISTRICT COURT, DESCRIBING THE NATURE OF
THE CONTRACTS WHICH IT OFFERED TO ITS CLIENTS.  THE AFFIDAVIT STATED
THAT A CUSTOMER WHO ORDERED MAGAZINE SUBSCRIPTIONS FROM RESPONDENT WAS
REQUIRED TO PAY FOR ALL MAGAZINES DURING THE FIRST HALF OF THE CONTRACT
TERM.  /6/  THUS, ACCORDING TO THE AFFIDAVIT, AT ALL TIMES DURING THE
COURSE OF A CONTRACT, A PURCHASER WHO HAS COMPLIED WITH THE TERMS OF
THE CONTRACT HAS PAID FOR MORE MAGAZINES THAN HE HAS RECEIVED. 

[[HC361'(ORIGINAL DOCUMENT PAGE 361)'  RESPONDENT DID NOT, HOWEVER,
SUBMIT ANY AFFIDAVIT TO THE COURT CONTESTING ANY OF THE FACTS STATED IN
ITS "DUNNING" LETTERS.  ON THIS RECORD, BOTH PARTIES MOVED FOR SUMMARY
JUDGMENT, DECLARING EXPLICITLY THAT NO FACTUAL QUESTION REMAINED
UNDECIDED. 

REGULARLY EXTEND CREDIT, WITH ATTENDANT FINANCE CHARGES, /7/  TO
DISCLOSE CERTAIN CONTRACT INFORMATION "TO EACH PERSON TO WHOM CONSUMER
CREDIT IS EXTENDED AND UPON WHOM A FINANCE CHARGE IS OR MAY BE IMPOSED
. . ."  /8/  AMONG OTHER RELEVANT FACTS, THE MERCHANT MUST, WHERE
APPLICABLE, LIST THE CASH PRICE OF THE MERCHANDISE OR SERVICE SOLD, THE
AMOUNT OF FINANCE AND OTHER CHARGES, AND THE RATE OF THE CHARGES.  /9/
FAILURE TO DISCLOSE RENDERS THE SELLER LIABLE TO THE CONSUMER FOR A
PENALTY OF TWICE THE AMOUNT OF THE FINANCE CHARGE, BUT IN NO EVENT LESS
THAN $100 OR MORE THE $1,000.  /10/  THE CREDITOR MAY ALSO BE ASESSED
FOR THE COSTS OF THE LITIGATION, INCLUDING REASONABLE ATTORNEY'S FEES
/11/  AND, IN CERTAIN CIRCUMSTANCES NOT RELEVANT HERE, MAY BE THE
SUBJECT OF CRIMINAL CHARGES.  /12/ 


"THE (FEDERAL RESERVE) BOARD SHALL PRESCRIBE REGULATIONS TO

  CARRY OUT THE PURPOSES OF (THE ACT).  THESE REGULATIONS MAY

  CONTAIN SUCH CLASSIFICATIONS, DIFFERENTIATIONS, OR OTHER

  PROVISIONS, AND MAY PROVIDE FOR SUCH ADJUSTMENTS AND EXCEPTIONS

  FOR ANY CLASS OF TRANSACTIONS, AS IN THE JUDGMENT OF THE BOARD

  ARE NECESSARY OR PROPER TO EFFECTUATE THE PURPOSES OF (THE ACT),

  TO PREVENT CIRCUMVENTION OR EVASION THEREOF, OR TO FACILITATE

  COMPLIANCE THEREWITH." 

[[HC362'(ORIGINAL DOCUMENT PAGE 362)'  ACCORDINGLY, THE BOARD HAS
PROMULGATED REGULATION Z, WHICH DEFINES THE CIRCUMSTANCES IN WHICH A
SELLER WHO REGULARLY EXTENDS CREDIT MUST MAKE THE DISCLOSURES OUTLINED
IN ^ 128.  /14/  THE REGULATION PROVIDES THAT DISCLOSURE IS NECESSARY
WHENEVER CREDIT IS OFFERED TO A CONSUMER "FOR WHICH EITHER A FINANCE
CHARGE IS OR MAY BE IMPOSED OR WHICH PURSUANT TO AN AGREEMENT, IS OR
MAY BE PAYABLE IN MORE THAN FOUR INSTALLMENTS."  /15/ 

RELYING ON THE RULE GOVERNING CREDIT TRANSACTIONS OF MORE THAN FOUR
INSTALLMENTS, THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR
PETITIONER.  THE COURT FOUND THAT RESPONDENT HAD EXTENDED CREDIT TO
PETITIONER, /16/  WHICH BE AGREEMENT WAS PAYABLE IN MORE THAN FOUR
INSTALLMENTS, BUT HAD FAILED TO COMPLY WITH THE DISCLOSURE PROVISIONS
OF THE ACT. 

THE COURT OF APPEALS REVERSED, HOLDING THAT THE BOARD HAD EXCEEDED
ITS STATUTORY AUTHORITY IN PROMULGATING THE REGULATION UPON WHICH THE
DISTRICT COURT RELIED.  THE REGULATION WAS FOUND TO CONFLICT WITH ^ 121
OF THE ACT /17/  SINCE IT REQUIRED THAT DISCLOSURE BE MADE IN REGARD TO
SOME CREDIT TRANSACTIONS IN WHICH A FINANCE CHARGE HAD NOT BEEN
IMPOSED. 

[[HC363'(ORIGINAL DOCUMENT PAGE 363)'  AS AN ALTERNATIVE GROUND FOR
ITS DECISION, THE COURT OF APPEALS HELD THAT THE REGULATION CREATED A
CONCLUSIVE PRESUMPTION THAT CREDIT PAYMENTS MADE IN MORE THAN FOUR
INSTALLMENTS INCLUDED A FINANCE CHARGE.  RELYING ON SHCLESINGER V.
WISCONSIN, 270 U.S. 230 (1926), AND HEINER V. DONNAN, 285 U.S. 312
(1932), THE COURT CONCLUDED THAT SUCH AN IRREBUTTABLE PRESUMPTION OF
FACT VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

        I 

PASSAGE OF THE TRUTH IN LENDING ACT IN 1968 CULMINATED SEVERAL YEARS
OF CONGRESSIONAL STUDY AND DEBATE AS TO THE PROPRIETY AND USEFULNESS OF
IMPOSING MANDATORY DISCLOSURE REQUIREMENTS ON THOSE WHO EXTEND CREDIT
TO CONSUMERS IN THE AMERICAN MARKET.  BY THE TIME OF PASSAGE, IT HAD
BECOME ABUNDANTLY CLEAR THAT THE USE OF CONSUMER CREDIT WAS EXPANDING
AT AN EXTREMELY RAPID RATE.  FROM THE END OF WORLD WAR II THROUGH 1967,
THE AMOUNT OF SUCH CREDIT OUTSTANDING HAD INCREASE FROM $5.6 BILLION TO
$95.9 BILLION, A RATE OF GROWTH MORE THAN 4 1/2 TIMES AS GREAT AS THAT
OF THE ECONOMY.  /18/  YET, AS THE CONGRESSIONAL HEARINGS REVEALED,
CONSUMERS REMAINED REMARKABLY IGNORANT OF THE NATURE OF THEIR CREDIT
OBLIGATIONS AND OF THE COSTS OF DEFERRING PAYMENT.  /19/  BECAUSE OF
THE DIVERGENT, AND AT TIMES FRAUDULENT, PRACTICES BY WHICH CONSUMERS
WERE INFORMED OF THE TERMS OF THE CREDIT EXTENDED TO THEM, MANY
CONSUMERS WERE PREVENTED FROM SHIPPING FOR THE BEST TERMS AVAILABLE
AND, AT TIMES, WERE PROMPTED TO ASSUME LIABILITIES THEY COULD NOT
MEET.  /20/  JOSEPH BARR, THEN UNDER SECRETARY OF THE TREASUREY, NOTED
IN TESTIFYING BEFORE A SENATE SUBCOMMITTEE THAT SUCH BLIND ECONOMIC
ACTIVITY IS INCONSISTENT WITH THE EFFICIENT FUNCTIONING OF A FREE
ECONOMIC SYSTEM SUCH AS OURS, WHOSE ABILITY TO PROVIDE DESIRED MATERIAL
AT THE LOWEST COST IS DEPENDENT ON THE ASSERTED PREFERENCES AND
INFORMED CHOICES OF CONSUMERS.  /21/ 

[[HC364'(ORIGINAL DOCUMENT PAGE 364)' 

THE TRUTH IN LENDING ACT WAS DESIGNED TO REMEDY THE PROBLEMS WHICH
HAD DEVELOPED.  THE HOUSE COMMITTEE ON BANKING AND CURRENCY REPORTED,
IN REGARD TO THE THEN PROPOSED LEGISLATION: 

"(BY REQUIRING ALL CREDITORS TO DISCLOSE CREDIT INFORMATION IN A
UNIFORM MANNER, AND BY REQUIRING ALL ADDITIONAL MANDATORY CHARGES
IMPOSED BY THE CREDITOR AS AN INCIDENT TO CREDIT BE INCLUDED IN THE
COMPUTATION OF THE APPLICABLE PERCENTAGE RATE, THE AMERICAN CONSUMER
WILL BE GIVEN THE INFORMATION HE NEEDS TO COMPARE THE COST OF CREDIT
AND TO MAKE THE BEST INFORMED DECISION ON THE USE OF CREDIT."  /22/
THIS PURPOSE WAS STATED EXPLICITLY IN ^ 102 OF THE LEGISLATION
ENACTED: 

     "THE CONGRESS FINDS THAT ECONOMIC STABILIZATION WOULD BE

  ENHANCED AND THE COMPETITION AMONG THE VARIOUS FINANCIAL

  INSTITUTIONS AND OTHER FIRMS ENGAGED IN THE EXTENSION OF CONSUMER

  CREDIT WOULD BE STRENGTHENED BY THE INFORMED USE OF CREDIT.  THE

  INFORMED USE OF CREDIT RESULTS FROM AN AWARENESS OF THE COST

THEREOF BY CONSUMERS.  IT IS THE PURPOSE OF THIS SUBCHAPTER TO

  ASSURE A MEANINGFUL DISCLOSURE OF CREDIT TERMS SO THAT THE

  CONSUMER WILL BE ABLE TO COMPARE MORE READILY THE VARIOUS CREDIT

  TERMS AVAILABLE TO HIM AND AVOID THE UNINFORMED USE OF CREDIT." 

  /13/ 

[[HC365'(ORIGINAL DOCUMENT PAGE 365)' 

THE HEARINGS HELD BY CONGRESS REFLECT THE DIFFICULTY OF THE TASK IT
SOUGHT TO ACCOMPLISH.  WHATEVER LEGISLATION WAS PASSED HAD TO DEAL NOT
ONLY WITH THE MYRIAD FORMS IN WHICH CREDIT TRANSACTIONS THEN OCCURRED,
BUT ALSO WITH THOSE WHICH WOULD BE DEVISED IN THE FUTURE.  /24/  TO
ACCOMPLISH ITS DESIRED OBJECTIVE, CONGRESS DETERMINED TO LAY THE
STRUCTURE OF THE ACT BROADLY AND TO ENTRUST ITS CONSTRUCTION TO AN
AGENCY WITH THE NECESSARY EXPERIENCE AND RESOURC ES TO MONITOR ITS
OPERATION.  SECTION 105 DELEGATED TO THE FEDERAL RESERVE BOARD BROAD
AUTHORITY TO PROMULGATE REGULATIONS NECESSARY TO RENDER THE ACT
EFFECTIVE.  THE LANGUAGE EMPLOYED EVINCES THE AWARENESS OF CONGRESS
THAT SOME CREDITORS WOULD ATTEMPT TO CHARACTERIZE THEIR TRANSACTIONS SO
AS TO FALL ONE STEP OUTSIDE WHATEVER BOUNDARY CONGRESS ATTEMPTED TO
ESTABLISH.  IT INDICATES AS WELL THE CLEAR DESIRE OF CONGRESS TO INS,RE
THAT THE BOARD HAD ADEQUATE POWER TO DEAL WITH SUCH ATTEMPTED EVASION. 
IN ADDITION TO GRANTING TO THE BOARD THE AUTHORITY NORMALLY GIVEN TO
ADMINISTRATIVE AGENCIES TO PROMULGATE REGULATIONS DESIGNED TO "CARRY
OUT THE PURPOSES" OF THE ACT, CONGRESS SPECIFICALLY STATED: 

"THESE REGULATIONS MAY CONTAIN SUCH CLASSIFICATIONS,
DIFFERENTIATIONS, OR OTHER PROVISIONS, AND MAY PROVIDE FOR SUCH
ADMUSTMENTS AND EXCEPTIONS FOR ANY CLASS OF TRANSACTIONS, AS IN THE
JUDGMENT OF THE BOARD ARE NECESSARY OR PROPER . . . TO PREVENT
CIRCUMVENTION OR EVASION (OF THE ACT), OR TO FACILITATE COMPLIANCE
THEREWITH."  /25/ 

[[HC366'(ORIGINAL DOCUMENT PAGE 366)'  THE BOARD WAS THEREBY
EMPOWERED TO DEFINE SUCH CLASSIFICATIONS AS WERE REASONABLY NECESSARY
TO INSURE THAT THE OBJECTIVES OF THE ACT WERE FULFILLED, NO MATTER WHAT
ADROIT OR UNSCRUPULOUS PRACTICES WERE EMPLOYED BY THOSE EXTENDING
CREDIT TO CONSUMERS. 

ONE MEANS OF CIRCUMVENTING THE OBJECTIVES OF THE TRUTH IN LENDING
ACT, AS PASSED BY CONGRESS, WAS THAT OF "BURYING" THE COST OF CREDIT IN
THE PRICE OF GOODS SOLD.  THUS IN MANY CREDIT TRANSACTIONS IN WHICH
CREDITORS CLAIMED THAT NO FINANCE CHARGE HAD BEEN IMPOSED, THE CREDITOR
MERELY ASSUMED THE COST OF EXTENDING CREDIT AS AN EXPENSE OF DOING
BUSINESS, TO BE RECOUPED AS PART OF THE PRICE CHARGED IN THE
TRANSACTION.  /26/  CONGRESS WAS WELL AWARE, FROM ITS EXTENSIVE
STUDIES, OF THE POSSIBILITY THAT MERCHANTS COULD USE SUCH DEVICES TO
EVADE THE DISCLOSURE REQUIREMENTS OF THE ACT.  THE COMMITTEE HEARINGS
ARE REPLETE WITH SUGGESTIONS THAT SUCH MANIPULATION WOULD RENDER THE
ACT A FUTILE GESTURE IN THE CASE OF GOODS NORMALLY SOLD BY INSTALLMENT
CONTRACT.  /27/ 

[[HC367'(ORIGINAL DOCUMENT PAGE 367)'  OPPONENTS OF THE BILL
CONTENDED THAT THE REPORTING PROVISIONS WOULD ACTUALLY ENCOURAGE
MERCHANTS WHO HAD FORMERLY SEGREATED THEIR CREDIT COSTS NOT TO DO SO.
THEY PREDICTED THAT THE EFFECT OF THE ACT WOULD THUS BE TO REDUCE THE
AMOUNT OF INFORMATION AVAILABLE TO THE CONSUMER, A RESULT DIRECTLY
CONTRARY TO THAT WHICH WAS INTENDED.  /28/  PROPONENTS OF THE
LEGISLATION CLAIMED THAT THE ACT WOULD ENHANCE THE CONSUMER'S ABILITY
TO MAKE AN INFORMED CHOICE EVEN IF FINANCE CHARGES WERE HIDDEN.  IN
RESPONSE TO A CLAIM THAT CREDIT COSTS WOULD BE INCORPORATED IN THE
PRICE OF GOODS, SENATOR DOUGLAS, WHO FIRST PROPOSED THE TRUTH IN
LENDING ACT, STATED:     "I WOULD LIKE TO CALL TO YOUR ATTENTION,
SENATOR, FOR PURPOSES OF THE RECORD, THAT THIS BILL DOES NOT PROVIDE
FOR JUDGMENT SOELY ON THE BASIS OF THE . . . ANNUAL INTEREST RATE OR
THE TOTAL FINANCE CHARGES.  IT ALSO PROVIDES THAT THERE SHALL BE A
STATEMENT OF THE CASH PRICE OR DELIVERY PRICE OF THE PROPERTY OR
SERVICE TO BE ACQUIRED. 

[[HC368'(ORIGINAL DOCUMENT PAGE 368)'

  BOTH THINGS ARE TO BE STATED, PRICE AND FINANCE CHARGES, AND THE
JUDGMENT OF THE CONSUMER CAN       BE ON THE BASIS OF BOTH OF THESE
FACTORS, NOT MERELY ON ONE ALONE; AND IF A MERCHANT TRIES TO

  HAVE A LOW FINANCE CHARGE AND BURY IT IN A HIGH CASH PRICE OR
DELIVERED PRICE, THEN THE

  PURCHASER CAN SHOP ON PRICE JUST AS MUCH AS ON THE FINANCE
CHARGES."  /29/ 

IT WAS AGAINST THIS LEGISLATIVE BACKGROUND THAT THE FEDERAL RESERVE
BOARD PROMULGATED REGULATIONS GOVERNING ENFORCEMENT OF THE TRUTH IN
LENDING ACT.  IN SEPTEMBER 1968, WITH THE AID OF AN ADVISORY BOARD
COMPOSED OF REPRESENTATIVES OF DIVERSE RETAIL, LENDING, AND CONSUMER
GROUPS, THE BOARD COMPILED AND RELEASED A DRAFT OF PROPOSED
REGULATIONS.  /30/  COMMENTS AND CRITICISMS FROM INTEREST PARTIES WERE
INVITED.  AFTER MORE THAN 1,800 RESPONSES WERE RECEIVED AND CONSIDERED
BY THE BOARD, THE REGULATIONS WERE REVIEWED AND PUBLISHED IN THE
FEDERAL REGISTER.  /31/ 

THE FOUR INSTALLMENT RULE WAS INCLUDED IN THE ORIGINAL PUBLISHED
DRAFT OF THE REGULATIONS AND WAS NOT AMENDED PRIOR TO ITS FINAL
ADOPTION.  /32/  THE BOARD'S OBJECTIVE IN PROMULGATING THE RULE WAS TO
PREVENT THE ACT FROM FULFILLING THE PROPHECY WHICH ITS OPPONENTS HAD
FORECAST.  AS J. L. ROBERTSON, VICE CHAIRMAN OF THE BOARD OF GOVERNORS,
STATED IN AN ADVISORY LETTER ISSUED A YEAR LATER: 

     "THE BOARD FELT THAT IT WAS IMPERATIVE TO INCLUDE TRANSACTIONS

  INVOLVING MORE THAN FOUR INSTALLMENTS UNDER THE REGULATION SINCE

  WITHOUT THIS PROVISION THE PRACTICE OF BURYING THE FINANCE CHARGE

  IN THE CASH PRICE, A PRACTICE WHICH ALREADY EXISTS IN MANY CASES,

  WOULD HAVE BEEN ENCOURAGED BY TRUTH IN LENDING. 

[[HC369'(ORIGINAL DOCUMENT PAGE 369)'

  OBVIOUSLY THIS WOULD HAVE BEEN DIRECTLY CONTRARY TO CONGRESSIONAL
INTENT."  /33/ FURTHERMORE, EVEN AS TO SALES IN WHICH IT WAS IMPOSSIBLE
TO DETERMINE WHAT, IF ANY, PORTION OF THE PRICE RECOMPENSED THE
CREDITOR FOR DEFERRING PAYMENT, THE REGULATION AT LEAST REQUIRED THAT
THE CONSUMER BE PROVIDED WITH SOME INFORMATION WHICH WOULD ENABLE HIM
TO MAKE AN INFORMED ECONOMIC CHOICE.  /34/

        II 

THE STANDARD TO BE APPLIED IN DETERMINING WHETHER THE BOARD EXCEEDED
THE AUTHORITY DELEGATED TO IT UNDER THE TRUTH IN LENDING ACT IS WELL
ESTABLISHED UNDER OUR PRIOR CASES.  WHERE THE EMPOWERING PROVISION OF A
STATUTE STATES SIMPLY THAT THE AGENCY MAY "MAKE . . . SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS
ACT,"  /35/  WE HAVE HELD THAT THE VALIDITY OF A REGULATION PROMULGATED
THEREUNDER WILL BE SUSTAINED SO LONG AS IT IS "REASONABLY RELATED TO
THE PURPOSES OF THE ENABLING LEGISLATION."  THORPE V. HOUSING AUTHORITY
OF THE CITY OF DURHAM, 393 U.S. 268, 280 - 281 (1969).  SEE ALSO
AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 344 U.S. 298 (1953). 

WE HAVE ALSO CONSTRUED ENABLING PROVISIONS SIMILAR TO ^ 105 OF THE
TRUTH IN LENDING ACT, IN WHICH CONGRESS HAS STRESSED THE AGENCY'S POWER
TO COUNTERACT ATTEMPTS TO EVADE THE PURPOSES OF A STATUTE. 

[[HC370'(ORIGINAL DOCUMENT PAGE 370)'  IN GEMSCO, INC. V. WALLING,
324 U.S. 244 (1945), WE WERE ASKED TO DETERMINE WHETHER THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR
WAS EMPOWERED UNDER THE FAIR LABOR STANDARDS ACT OF 1938 /36/  TO
PROHIBIT COMPANIES FROM ALLOWING OR REQUIRING THEIR EMPLOYEES TO DO
INDUSTRIAL HOMEWORK.  THE ACT REQUIRED THE ADMINISTRATOR TO APPROVE
ORDERS WHICH WERE DESIGNED TO RAISE THE MINIMUM WAGE TO 40 CENTS AN
HOUR.  WHILE THE ACT DID NOT SPECIFICALLY MENTION INDUSTRIAL HOMEWORK,
^ 8(F) STATED THAT THE ADMINISTRATOR'S ORDERS 

"SHALL CONTAIN SUCH TERMS AND CONDITIONS AS THE ADMINISTRATOR FINDS
NECESSARY TO CARRY OUT THE PURPOSES OF SUCH ORDERS, TO PREVENT THE
CIRCUMVENTION OR EVASION THEREOF, AND TO SAFEGUARD THE MINIMUM WAGE
RATES ESTABLISHED THEREIN."  /37/ AFTER HEARINGS, THE ADMINISTRATOR
DETERMINED THAT HOMEWORK FURNISHED "A READY MEANS" OF EVADING HIS
ORDERS, AND PROHIBITED CERTAIN COMPANIES SUBJECT THERETO FROM EMPLOYING
THIS MEANS OF PRODUCTION.  THE COURT CONCLUDED THAT THE ADMINISTRATOR
HAD NOT EXCEEDED HIS AUTHORITY UNDER THE ACT, NOTING THAT A MORE
RESTRICTIVE INTERPRETATION OF THE ENABLING PROVISION WOULD HAVE
RENDERED THE ACT INOPERABLE.  FOCUSING ON THE MANDATE PROVIDED BY ^
8(F), THE COURT STATED: 

"WHEN COMMAND IS SO EXPLICIT AND, MOREOVER, IS REINFORCED BY
NECESSITY IN ORDER TO MAKE IT OPERATIVE, NOTHING SHORT OF EXPRESS
LIMITATION OR ABUSE OF DISCRETION IN FINDING THAT THE NECESSITY EXISTS
SHOULD UNDERMINE THE ACTION TAKEN TO EXECUTE IT.  WHEN NEITHER SUCH
LIMITATION NOR SUCH ABUSE EXISTS, BUT THE NECESSITY IS CONCEDED TO BE
WELL FOUNDED IN FACT, THERE WOULD SEEM TO BE AN END OF THE MATTER." 
324 U.S., AT 255. 

[[HC371'(ORIGINAL DOCUMENT PAGE 371)' 

IN LIGHT OF OUR PRIOR HOLDINGS AND THE LEGISLATIVE HISTORY OF THE
TRUTH IN LENDING ACT, WE CANNOT AGREE WITH THE CONCLUSION OF THE COURT
OF APPEALS THAT THE BOARD EXCEEDED ITS STATUTORY AUTHORITY IN
PROMULGATING THE FOUR INSTALLMENT RULE.  CONGRESS WAS CLEARLY AWARE
THAT MERCHANTS COULD EVADE THE REPORTING REQUIREMENTS OF THE ACT BY
CONCEALING CREDIT CHARGES.  IN DELEGATING RULEMAKING AUTHORITY TO THE
BOARD, CONGRESS EMPHASIZED THE BOARD'S AUTHORITY TO PREVENT SUCH
EVASION.  TO HOLD THAT CONGRESS DID NOT INTEND THE BOARD TO TAKE ACTION
AGAINST THIS TYPE OF MANIPULATION WOULD REQUIRE US TO BELIEVE THAT,
DESPITE THIS EMPHASIS, CONGRESS INTENDED THE OBLIGATIONS ESTABLISHED BY
THE ACT TO BE OPEN TO EVASION BY SUBTERFUGES OF WHICH IT WAS FULLY
AWARE.  AS IN GEMSCO, THE LANGUAGE OF THE ENABLING PROVISION PRECLUDES
US FROM ACCEPTING SO NARROW AN INTERPRETATION OF THE BOARD'S POWER. 

GIVEN THAT SOME REMEDIAL MEASURE WAS AUTHORIZED, THE QUESTION
REMAINING IS WHETHER THE MEASURE CHOSEN IS REASONABLY REALTED TO ITS
OBJECTIVES.  WE SEE NO REASON TO DOUBT THE BOARD'S CONCLUSION THAT THE
RULE WILL DETER CREDITORS FROM ENGAGING IN THE CONDUCT WHICH THE BOARD
SOUGHT TO ELIMINATE.  THE BURDENS IMPOSED ON CREDITORS ARE NOT SEVERE,
WHEN MEASURED AGAINST THE EVILS WHICH ARE AVOIDED.  FURTHERMORE, WERE
IT POSSIBLE OR FINANCIALLY FEASIBLE TO DELVE INTO THE INTRICACIES OF
EVERY CREDIT TRANSACTION, IT IS CLEAR THAT MANY CREDITORS TO WHOM THE
RULE APPLIES WOULD BE FOUND TO HAVE CHARGED FOR DEFERRING PAYMENT,
WHILE CLAIMING THEY HAD NOT.  THAT SOME OTHER REMEDIAL PROVISION MIGHT
BE PREFERABLE IS IRRELEVANT.  WE HAVE CONSISTENTLY HELD THAT WHERE
REASONABLE MINDS MAY DIFFER AS TO WHICH OF SEVERAL REMEDIAL MEASURES
SHOULD BE CHOSEN, COURTS SHOULD DEFER TO THE INFORMED EXPERIENCE AND
JUDGMENT OF THE AGENCY TO WHOM CONGRESS DELEGATED APPROPRIATE
AUTHORITY. 

[[HC372'(ORIGINAL DOCUMENT PAGE 372)'  NORTHWESTERN CO. V. FPC, 321
U.S. 119, 124 (1944); NATIONAL BROADCASTING CO. V. UNITED STATES, 319
U.S. 190, 224 (1943); AMERICAN TELEPHONE & TELEGRAPH CO. V. UNITED
STATES, 299 U.S. 232, 236 (1936) 

RESPONDENT CONTENDS, HOWEVER, THAT THE FOUR INSTALLMENT RULE MUST BE
ABROGATED SINCE IT IS "INCONSISTENT" WITH PORTIONS OF THE ENABLING
STATUTE.  THE PURPORTED CONFLICT ARISES BECAUSE THE STATUTE
SPECIFICALLY MENTIONS DISCLOSURE ONLY IN REGARD TO TRANSACTIONS IN
WHICH A FINANCE CHARGE IS IN FACT IMPOSED, /38/  ALTHOUGH THE RULE
REQUIRES DISCLOSURE IN SOME CASES IN WHICH NO SUCH CHARGE EXISTS. 
RESPONDENT ARGUES THAT, IN REQUIRING DISCLOSURE AS TO SOME
TRANSACTIONS, CONGRESS INTENDED TO PRECLUDE THE BOARD FROM IMPOSING
SIMILAR REQUIREMENTS AS TO ANY OTHER TRANSACTIONS. 

TO ACCEPT RESPONDENT'S ARGUMENT WOULD UNDERMINE THE FLEXIBILITY
SOUGHT IN VESTING BROAD RULEMAKING AUTHORITY IN AN ADMINISTRATIVE
AGENCY.  IN AMERICAN TRUCKING ASSNS.  V. UNITED STATES, SUPRA, WE NOTED
THAT IT WAS NOT 

"A REASONABLE CANON OF INTERPRETATION THAT THE DRAFTSMEN OF ACTS
DELEGATING AGENCY POWERS, AS A PRACTICAL AND REALISTIC MATTER, CAN OR
DO INCLUDE SPECIFIC CONSIDERATION OF EVERY EVIL SOUGHT TO BE
CORRECTED.  . . (NO GREAT ACQUAINTANCE WITH PRACTICAL AFFAIRS IS
REQUIRED TO KNOW THAT SUCH PRESCIENCE, EITHER IN FACT OR IN THE MINDS
OF CONGRESS, DOES NOT EXIST.  ITS VERY ABSENCE, MOREOVER, IS PRECISELY
ONE OF THE REASONS WHY REGULATORY AGENCIES SUCH AS THE COMMISSION ARE
CREATED, FOR IT IS THE FOND HOPE OF THEIR AUTHORS THAT THEY BRING TO
THEIR WORK THE EXPERT'S FAMILIARITY WITH INDUSTRY CONDITIONS WHICH
MEMBERS OF THE DELEGATING LEGISLATURES CANNOT BE EXPECTED TO POSSESS." 
344 U.S., AT 309 - 310 (CITATIONS OMITTED). 

[[HC373'(ORIGINAL DOCUMENT PAGE 373)'  NEITHER THE SECTIONS OF THE
TRUTH IN LENDING ACT WHICH REFER SPECIFICALLY TO TRANSACTIONS INVOLVING
FINANCE CHARGES NOR ANY OTHER SECTIONS OF THE ACT INDICATE THAT
CONGRESS ATTEMPTED TO LIST COMPREHENSIVELY ALL TYPES OF TRANSACTIONS TO
WHICH THE BOARD'S REGULATIONS MIGHT APPLY.  TO THE CONTRARY, ^ 105'S
BROAD GRANT OF RULEMAKING AUTHORITY REFLECTS AN INTENTION TO REPLY ON
THOSE ATTRIBUTES OF AGENCY ADMINISTRATION RECOGNIZED IN AMERICAN
TRUCKING.  WE CANNOT THEN INFER THAT REFERENCES IN THE ACT TO
TRANSACTIONS INVOLVING CREDIT CHARGES WERE INTENDED TO LIMIT THE
DETERRENT MEASURES WHICH THE BOARD MIGHT CHOOSE. 

SINCE THE DETERRENT EFFECT OF THE CHALLENGED RULE CLEARLY IMPLEMENTS
THE OBJECTIVES OF THE ACT, RESPONDENT'S CONTENTION IS REDUCED TO A
CLAIM THAT THE RULE IS VOID BECAUSE IT REQUIRES DISCLOSURE BY SOME
CREDITORS WHO DO NOT CHARGE FOR CREDIT AND THUS NEED NOT BE DETERRED. 
THE FACT THAT THE REGULATION MAY AFFECT SUCH INDIVIDUALS DOES NOT
IMPAIR ITS OTHERWISE VALID PURPOSE.  A SIMILAR CONTENTION WAS MADE IN
GEMSCO, AND REJECTED BY THE COURT.  GEMSCO CLAIMED THAT THE
ADMINISTRATOR WAS NOT ATTEMPTING TO ENFORCE THE REQUIREMENTS OF THE
STATUTE BUT WAS ATTEMPTING TO ADVANCE "EXPERIMENTAL SOCIAL LEGISLATION"
WHICH CONGRESS HAD NOT APPROVED.  RESPONDING TO THAT ARGUMENT THE COURT
STATED: 

"SECTION 8(F), IN DIRECTING THE ADMINISTRATOR TO INCLUDE 'SUCH TERMS
AND CONDITIONS' AS HE 'FINDS NECESSARY TO CARRY OUT THE PURPOSES OF
SUCH ORDERS,' DID NOT FORBID HIM TO TAKE THE ONLY MEASURES WHICH WOULD
BE EFFECTIVE, MERELY BECAUSE OTHER CONSEQUENCES NECESSARILY WOULD
FOLLOW.  THE LANGUAGE NEITHER STATES EXPRESSLY NOR IMPLIES THAT HE IS
TO DO ONLY WHAT WILL ACHIEVE THE STATED ENDS AND NOTHING MORE. 

[[HC374'(ORIGINAL DOCUMENT PAGE 374)'

  THE STATUTE DOES NOT DIRECT THE ADMINISTRATOR TO MAKE THE RATE
EFFECTIVE BY ALL NECESSARY

  MEANS EXCEPT THOSE WHICH MAY HAVE OTHER SOCIAL OR ECONOMIC
CONSEQUENCES."  324 U.S., AT 257. 

THERE THE COURT WAS REFERRING TO THE REGULATION OF SUBJECT MATTER
NOT SPECIFICALLY MENTIONED IN THE ENABLING LEGISLATION.  A SIMILAR RULE
APPLIES WHEN A REMEDIAL PROVISION REQUIRES SOME INDIVIDUALS TO SUBMIT
TO REGULATION WHO DO NOT PARTICIPATE IN THE CONDUCT THE LEGISLATION WAS
INTENDED TO DETER OR CONTROL.  IN VILLAGE OF EUCLID V. AMBLER REALTY
CO., 272 U.S. 365, 388- 389 (1926), THE COURT HELD THAT, IN DEFINING A
CLASS SUBJECT TO REGULATION, "(THE INCLUSION OF A REASONABLE MARGIN TO
INSURE EFFECTIVE ENFORCEMENT, WILL NOT PUT UPON A LAW, OTHERWISE VALID,
THE STAMP OF INVALIDITY."  SEE ALSO NORTH AMERICAN CO. V. SEC, 327 U.S.
686 (1946).  NOTHING LESS WILL MEET THE DEMANDS OF OUR COMPLEX ECONOMIC
SYSTEM.  WHERE, AS HERE, THE TRANSACTIONS OR CONDUCT WHICH CONGRESS
SEEKS TO ADMINISTER OCCUR IN MYRIAD AND CHANGING FORMS, A REQUIREMENT
THAT A LINE BE DRAWN WHICH INSURES THAT NOT ONE BLAMELESS INDIVIDUAL
WILL BE SUBJECT TO THE PROVISIONS OF AN ACT WOULD UNREASONABLY ENCUMBER
EFFECTIVE ADMINISTRATION AND PERMIT MANY CLEAR VIOLATORS TO ESCAPE
REGULATION ENTIRELY.  THAT THIS RATIONALE APPLIES TO ADMINISTRATIVE
AGENCIES AS WELL AS TO LEGISLATURES IS IMPLICIT IN BOTH GEMSCO AND
AMERICAN TRUCKING ASSNS.  IN NEITHER CASE WAS EVERY INDIVIDUAL ENGAGED
IN THE REGULATED ACTIVITY RESPONSIBLE FOR THE SPECIFIC CONSEQUENCES THE
AGENCY SOUGHT TO ELIMINATE. 

RESPONDENT ARGUES THAT SUCH AN INTERPRETATION OF THE TRUTH IN
LENDING ACT IS INCONSISTENT WITH OUR HOLDING IN FCC V. AMERICAN
BROADCASTING CO., 347 U.S. 284 (1954).  IN THAT CASE, THE COURT
CONSIDERED WHETHER, IN ESTABLISHING REGULATIONS TO GOVERN PROGRAMING,
THE FCC HAD PROPERLY INTERPRETED A CRIMINAL PROVISION PROHIBITING THE
BROADCASTING OF LOTTERIES. 

[[HC375'(ORIGINAL DOCUMENT PAGE 375)'  AFTER NOTING THAT A GIVEN
STATUTE COULD NOT BE CONSTRUED ONE WAY FOR PURPOSES OF AN
ADMINISTRATIVE PROCEEDING AND ANOTHER FOR CRIMINAL PROSECUTION, THE
COURT STATED: 

"IF WE SHOULD GIVE (THE CRIMINAL PROVISION) THE BROAD CONSTRUCTION
URGED BY THE COMMISSION, THE SAME CONSTRUCTION WOULD LIKEWISE APPLY IN
CRIMINAL CASES."  ID., AT 296.  SINCE, IN DRAFTING ITS REGULATION, THE
COMMISSION HAD FAILED TO APPLY THE WELL-ESTABLISHED RULE THAT PENAL
PROVISIONS MUST BE CONSTRUED NARROWLY, THE COURT HELD THE REGULATION
INVALID. 

RELYING ON AMERICAN BROADCASTING, RESPONDENT CONTENDS THAT THE TRUTH
IN LENDING ACT MUST BE CONSTRUED NARROWLY SINCE IT CONTAINS PENAL
PROVISIONS, /39/  AND THAT A NARROW INTERPRETATION REQUIRES THAT THE
BOARD'S RULE BE NULLIFIED.  WE CANNOT AGREE, HOWEVER, THAT EVERY
CONSTRUED AS A "PENAL" PROVISION, AS THAT TERM IS USED IN AMERICAN
BROADCASTING, MERELY BECAUSE TWO SECTIONS OF THE ACT PROVIDE FOR CIVIL
AND CRIMINAL PENALTIES.  PENAL SATUTES ARE CONSTRUED NARROWLY IN INSURE
THAT NO INDIVIDUAL IS CONVICTED UNLESS "A FAIR WARNING (HAS FIRST BEEN)
GIVEN TO THE WORLD IN LANGAUGE THAT THE COMMON WORLD WILL UNDERSTAND,
OF WHAT THE LAW INTENDS TO DO IF A CERTAIN LINE IS PASSED."  MCBOYLE V.
UNITED STATES, 283 U.S. 25, 27 (1931).  /40/  WHERE, AS HERE, THE
LANGUAGE OF THE CHALLENGED RULE IS EXPLICIT, THAT RISK IS NOT PRESENT. 
SEE KRAUS & BROS., INC. V. UNITED STATES, 327 U.S. 614, 621 - 622
(1946).     WE ARE ALSO UNABLE TO ACCEPT RESPONDENT'S ARGUMENT THAT ^
130 /41/  DOES NOT ALLOW IMPOSITION OF A CIVIL PENALTY IN CASES WHERE
NO FINANCE CHARGE IS INVOLVED BUT WHERE A REGULATION REQUIRING
DISCLOSURE HAS BEEN VIOLATED.     [[HC376'(ORIGINAL DOCUMENT PAGE 376)'
AMOUNT OF THE FINANCE CHARGE IMPOSED, BUT NO LESS THAN $100.  SINCE THE
CIVIL PENALTY PRESCRIBED IS MODEST AND THE PROHIBITED CONDUCT CLEARLY
SET OUT IN THE REGULATION, WE NEED NOT CONSTRUE THIS SECTION AS
NARROWLY AS A CRIMINAL STATUTE PROVIDING GRAVER PENALTIES, SUCH AS
PRISON TERMS.  WE HAVE NOTED ABOVE THAT THE OBJECTIVE SOUGHT IN
DELEGATING RULEMAKING AUTHORITY TO AN AGENCY IS TO RELIEVE CONGRESS OF
THE IMPOSSIBLE BURDEN OF DRAFTING A CODE EXPLICITLY COVERING EVERY
CONCEIVABLE FUTURE PROBLEM.  CONGRESS CANNOT THEN BE REQUIRED TO TAILOR
CIVIL PENALTY PROVISIONS SO AS TO DEAL PRECISELY WITH EACH STEP WHICH
THE AGENCY THEREAFTER FINDS NECESSARY.  IN LIGHT OF THE EMPHASIS
CONGRESS PLACED ON AGENCY RULEMAKING AND ON PRIVATE AND ADMINISTRATIVE
ENFORCEMENT OF THE ACT, WE CANNOT CONCLUDE THAT CONGRESS INTENDED THOSE
WHO FAILED TO COMPLY WITH REGULATIONS TO BE SUBJECT TO NO PENALTY OR TO
CRIMINAL PENALTIES ALONE.  AS THE DISTRICT COURT CONCLUDED, IMPOSITION
OF THE MINIMUM SANCTION IS PROPER IN CASES SUCH AS THIS, WHERE THE
FINANCE CHARGE IS NONEXISTENT OR UNDETERMINED. 

FINALLY, THE FOUR INSTALLMENT RULE DOES NOT CONFLICT WITH THE FIFTH
AMENDMENT UNDER OUR HOLDINGS IN SCHELSINGER V. WISCONSIN, 270 U.S. 230
(1926), AND HEINER V. DONNAN, 285 U.S. 312 (1932). 

[[HC377'(ORIGINAL DOCUMENT PAGE 377)'  IN SCHLESINGER AND HEINER, WE
HELD THAT CERTAIN TAXING PROVISIONS VIOLATED THE DUE PROCESS CLAUSES OF
THE FIFTH AND FOURTEENTH AMENDMENTS BECAUSE THEY CONCLUSIVELY PRESUMED
THE EXISTENCE OF DETERMINATIVE FACTS.  THE CHALLENGED RULE CONTAINS NO
COMPARABLE PRESUMPTION.  THE RULE WAS INTENDED AS A PROPHYLACTIC
MEASURE; IT DOES NOT PRESUME THAT ALL CREDITORS WHO ARE WITHIN ITS
AMBIT ASSESS FINANCE CHARGES, /42/  BUT, RATHER, IMPOSES A DISCLOSURE
REQUIREMENT ON ALL MEMBERS OF A DEFINED CLASS IN ORDER TO DISCOURAGE
EVASION BY A SUBSTANTIAL PORTION OF THAT CLASS. 

THE TRUTH IN LENDING ACT REFLECTS A TRANSITION IN CONGRESSIONAL
POLICY FROM A PHILOSOPHY OF LET THE BUYER BEWARE TO ONE OF LET THE
SELLER DISCLOSE.  BY ERECTING A BARRIER BETWEEN THE SELLER AND THE
PROSPECTIVE PURCHASER IN THE FORM OF HARD FACTS, CONGRESS EXPRESSLY
SOUGHT "TO . . . AVOID THE UNINFORMED USE OF CREDIT."  15 U.S.C. ^
1601.  SOME MAY CLAIM THAT IT IS A RELATIVELY EASY MATTER TO CALCULATE
THE TOTAL PAYMENTS TO WHICH PETITIONER WAS COMMITTED BY HER CONTRACT
WITH RESPONDENT; BUT AT THE TIME OF SALE, SUCH COMPUTATIONS ARE OFTEN
NOT ENCOURAGED BY THE SOLICITOR OR PERFORMED BY THE PURCHASER. 
CONGRESS HAS DETERMINED THAT SUCH PURCHASERS ARE IN NEED OF PROTECTION;
THE FOUR INSTALLMENT RULE SERVES TO INSURE THAT THE PROTECTIVE
DISCLOSURE MECHANISM CHOSEN BY CONGRESS WILL NOT BE CIRCUMVENTED. 

THAT THE APPROACH TAKEN MAY REFLECT WHAT RESPONDENT VIEWS AS AN
UNDUE PATERNALISTIC CONCERN FOR THE CONSUMER IS BESIDE THE POINT.  THE
STATUTORY SCHEME IS WITHIN THE POWER GRANTED TO CONGRESS UNDER THE
COMMERCE CLAUSE.  IT IS NOT A FUNCTION OF THE COURTS TO SPECULATE AS TO
WHETHER THE STATUTE IS UNWISE OR WHETHER THE EVILS SOUGHT TO BE
REMEDIED COULD BETTER HAVE BEEN REGULATED IN SOME OTHER MANNER. 

[[HC378'(ORIGINAL DOCUMENT PAGE 378)'

              REVERSED AND REMANDED. 

/1/  82 STAT. 148, 15 U.S.C. ^ 1604. 

/2/  12 CFR ^ 266.2(K) (1972 REV.). 

/3/  APP. 21. 

/4/  APP. 20. 

/5/  PETITIONER ALSO SUBMITTED TO THE COURT A LETTER SENT TO HER
LEGAL COUNSEL BY RESPONDENT'S OFFICE MANAGER.  THE LETTER STATED:
"WHEREAS, FPS, ACTS INITIALY (SIC) AS AGENT FOR THE VARIOUS PUBLISHERS;
UPON ACCEPTANCE OF HER CONTRACT, FPS THEREAFTER ACTS SOLELY AS
FINANCIER, AND CO-GUARANTER (SIC) OF SERVICE WITH THE VARIOUS
PUBLISHERS; WHEREAS, FPS, HAS FULLY INVESTED IN MRS. MOURNING'S
CONTRACT AND DOES NOT RECEIVE REFUND IN PART OR FULL FROM ANY, OR, ALL
PUBLISHERS; FOR SAID FPS, INVESTMENT, WE THEREFORE, MUST INSIST ON
COMPLIANCE OF YOUR CLIENT TO THE TERMS OF SAID CONTRACT UNTIL
FULLFILMENT (SIC) OF SAID TERMS IN THE AFOREMENTIONED CONTRACT RESULT
(SIC) IN MUTUAL RESOVLE (SIC) OF LIABILITY."  APP. 14.  RESPONDENT
ADMITTED THAT THIS LETTER HAD BEEN WRITTEN ON ITS STATIONERY BY ITS
EMPLOYEE, BUT DENIED THAT THE EMPLOYEE WAS AUTHORIZED TO SEND IT.
CONSEQUENTLY, WE DO NOT CONSIDER THE FACTS STATED IN THE LETTER TO HAVE
BEEN ADMITTED BY RESPONDENT. 

/6/  AFFIDAVIT OF STANLEY R. SWANSON, VICE PRESIDENT OF FAMILY
PUBLICATIONS SERVICE, INC., AUG. 26, 1970, P. 2 (DISTRICT COURT RECORD
198, 199).  THE AFFIDAVIT ALSO STATED THAT, WHILE CUSTOMERS OF
RESPONDENT ARE FREE TO PAY THE ENTIRE PRICE OF THEIR MAGAZINE
SUBSCRIPTIONS WHEN THEIR CONTRACT WITH RESPONDENT WAS SIGNED, THE PRICE
CHARGED WOULD BE EQUAL TO THE AGGREGATE OF THE PAYMENTS THAT WOULD HAVE
BEEN MADE HAD THE CUSTOMER ELECTED TO PAY IN INSTALLMENTS.  RESPONDENT
NOW ADMITS THAT THIS STATEMENT WAS NOT TRUE.  IN SOME CASES, CUSTOMERS
WHO AGREED TO PAY THE ENTIRE CONTRACT PRICE IMMEDIATELY WERE CHARGED
LESS THAN THE AGGREGATE AMOUNT OF THE INSTALLMENT PAYMENTS. 

/7/  SECTION 103(F), 15 U.S.C. ^ 1602(F).  CERTAIN TRANSACTIONS, NOT
HERE RELEVANT, ARE EXEMPT UNDER ^ 104, 15 U.S.C. ^ 1603. 

/8/  15 U.S.C. ^ 1631. 

/9/  ^ 128, 15 U.S.C. ^ 1638. 

/10/  ^ 130, 15 U.S.C. ^ 1640. 

/11/  IBID. 

/12/  ^ 112, 15 U.S.C. ^ 1611. 

/13/  15 U.S.C. ^ 1604. 

/14/  15 U.S.C. ^ 1638. 

/15/  12 CFR ^ 226.2(K) (1972 REV.). 

/16/  RESPONDENT CHALLENGES THE FINDING OF THE DISTRICT COURT THAT
CREDIT WAS EXTENDED TO PETITIONER.  IN SOME CASES IN WHICH A CONSUMER
PAYS IN INSTALLMENTS FOR A MAGAZINE SUBSCRIPTION, CREDIT MAY NOT HAVE
BEEN EXTENDED TO THE CONSUMER.  HOWEVER, IN VIEW OF THE ADMISSIONS BY
RESPONDENT WHICH WERE BEFORE THE DISTRICT COURT, RESPONDENT'S FAILURE
TO CONTROVERT THOSE ADMISSIONS BY AFFIDAVIT, AND THE LITIGATION POSTURE
WHICH RESPONDENT HAS CONSISTENTLY MAINTAINED BEGINNING IN THE DISTRICT
COURT, I.E., THAT NO FACTUAL MATTERS REMAINED UNRESOLVED, WE CONCLUDE
THAT SUMMARY JUDGMENT ON THIS ISSUE WAS PROPERLY GRANTED.  FED. RULE
CIV. PROC. 56(E). 

/17/  15 U.S.C. ^ 1631. 

/18/  H.R. REP. NO. 1040, 90TH CONG., 1ST SESS., 10 - 11 (1967). 

/19/  ID., AT 13; S. REP. NO. 392, 90TH CONG., 1ST SESS., 2 - 3
(1967). 

/20/  H. R. REP. NO. 1040, SUPRA, N. 18, AT 13; S. REP. NO. 392,
SUPRA, N. 19, AT 1 - 2. 

/21/  HEARING ON H. R. 11601 BEFORE THE SUBCOMMITTEE ON CONSUMER
AFFAIRS OF THE HOUSE COMMITTEE ON BANKING AND CURRENCY, 90TH CONG., 1ST
SESS., PT. 1, P. 76 (1967). 

/22/  H. R. REP. NO. 1040, SUPRA, N. 18, AT 13. 

/23/  15 U.S.C. ^ 1601. 

/24/  SEE LETTER FROM PAUL R. DIXON, CHAIRMAN OF THE FEDERAL TRADE
COMMISSION, TO SENATOR A. WILLIS ROBERTSON, CHAIRMAN OF THE SENATE
COMMITTEE ON BANKING AND CURRENCY, FEB. 18, 1964, IN HEARINGS ON S. 750
BEFORE THE SUBCOMMITTEE ON PRODUCTION AND STABILIZATION OF THE SENATE
COMMITTEE ON BANKING AND CURRENCY, 88TH CONG., 1ST AND 2D SESS., PT. 2,
P. 1303 (1963 - 1964). 

/25/  15 U.S.C. ^ 1604. 

/26/  FOR EXAMPLE, TWO MERCHANTS MIGHT BUY WATCHES AT WHOLESALE FOR
$20 WHICH NORMALLY SELL AT RETAIL FOR $40.  BOTH MIGHT SELL IMMEDIATELY
TO A CONSUMER WHO AGREED TO PAY $1 PER WEEK FOR 52 WEEKS.  IN ONE CASE,
THE MERCHANT MIGHT CLAIM THAT THE PRICE OF THE WATCH WAS $40 AND THAT
THE REMAINING $12 CONSTITUTED A CHARGE FOR EXTENDING CREDIT TO THE
CONSUMER.  FROM THE CONSUMER'S POINT OF VIEW, THE CREDIT CHARGE
REPRESENTS THE COST WHICH HE MUST PAY FOR THE PRIVILEGE OF DEFERRING
PAYMENT OF THE DEBT HE HAS INCURRED.  FROM THE CREDITOR'S POINT OF
VIEW, MUCH SIMPLIFIED, THE CHARGE MAY REPRESENT THE RETURN WHICH HE
MIGHT HAVE EARNED HAD HE BEEN ABLE TO INVEST THE PROCEEDS FROM THE SALE
OF THE WATCH FROM THE DATE OF THE SALE UNTIL THE DATE OF PAYMENT.  THE
SECOND MERCHANT MIGHT CLAIM THAT THE PRICE OF THE WATCH WAS $52 AND
THAT CREDIT WAS FREE.  THE SECOND MERCHANT, LIKE THE FIRST, HAS FORGONE
THE PROFITS WHICH HE MIGHT HAVE ACHIEVED BY INVESTING THE SALE PROCEEDS
FROM THE DAY OF THE SALE ON.  THE SECOND MERCHANT MAY BE SAID TO HAVE
"BURIED" THIS COST IN THE PRICE OF THE ITEM SOLD.  BY WHATEVER NAME,
THE $12 DIFFERENTIAL BETWEEN THE TOTAL PAYMENTS AND THE PRICE AT WHICH
THE MERCHANDISE COULD HAVE BEEN ACQUIRED IS THE COST OF DEFERRING
PAYMENT. 

/27/  HEARINGS ON S. 1740 BEFORE THE SUBCOMMITTEE ON PRODUCTION AND
STABILIZATION OF THE SENATE COMMITTEE ON BANKING AND CURRENCY, 87TH
CONG., 1ST SESS. 49, 56 - 57, 127, 389 - 390, 447 - 448, 563, 1155 -
1156 (1961); HEARINGS ON S. 1740 BEFORE THE SUBCOMMITTEE ON PRODUCTION
AND STABILIZATION OF THE SENATE COMMITTEE ON BANKING AND CURRENCY, 87TH
CONG., 2D SESS., 16, 45, 265, 267 - 268, 287, 341 - 342, 360 - 361, 365
- 367, 376, 407, 415 (1962); SENATE HEARINGS ON S. 750, 88TH CONG., 1ST
AND 2D SESS., SUPRA, N. 24 PTS.  1 AND 2, AT 13 - 14, 749, 1284 - 1285;
HEARINGS ON S. 5 BEFORE THE SUBCOMMITTEE ON FINANCIAL INSTITUTIONS OF
THE SENATE COMMITTEE ON BANKING AND CURRENCY, 90TH CONG., 1ST SESS., 41
- 42, 123 - 134, 377 - 379, 513, 699 (1967); HOUSE HEARINGS ON H. R.
11601, 90TH CONG., 1ST SESS., SUPRA, N. 21, PTS.  1 AND 2, AT 583, 590
591, 802, 825 - 826. 

/28/  SENATE HEARINGS ON S. 1740, 87TH CONG., 2D SESS., SUPRA, N.
27, AT 287; SENATE HEARINGS ON S. 750, 88TH CONG., 1ST AND 2D SESS.,
SUPRA, N. 24, PT. 1, AT 13 - 14; HOUSE HEARINGS ON H. R. 11601, 90TH
CONG., 1ST SESS., SUPRA, N. 21, PT. 2, AT 596. 

/29/  SENATE HEARINGS ON S. 1740, 87TH CONG., 1ST SESS., SUPRA, N.
27, AT 447 - 448.  SEE ALSO SENATE HEARINGS ON S. 1740, 87TH CONG., 2D
SESS., SUPRA, N. 27, AT 45. 

/30/  33 FED. REG. 15506 - 15516 (1968). 

/31/  34 FED. REG. 2002 - 2011 (1969). 

/32/  COMPARE ^ 226.2(H), 33 FED. REG. 15507 (1968), WITH ^ 226.2
(K), 34 FED. REG. 2003 (1969). 

/33/  FEDERAL RESERVE BOARD ADVISORY LETTER OF MAR. 3, 1970, BY J.
L. ROBERTSON.  SEE ALSO FEDERAL RESERVE BOARD ADVISORY LETTER OF AUG.
26, 1969, BY J. L. ROBERTSON. 

/34/  STATEMENT OF J. L. ROBERTSON, VICE CHAIRMAN, BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM, IN HEARINGS ON CONSUMER CREDIT
REGULATIONS BEFORE THE SUBCOMMITTEE ON CONSUMER AFFAIRS OF THE HOUSE
COMMITTEE ON BANKING AND CURRENCY, 91ST CONG., 1ST SESS., PT. 2, PP.
380 - 381 (1969). 

/35/  E. G., ^ 8 OF THE UNITED STATES HOUSING ACT OF 1937, AS
AMENDED, 42 U.S.C. ^ 1408. 

/36/  52 STAT. 1060. 

/37/  52 STAT. 1065. 

/38/  ^ 103(F), 15 U.S.C. ^ 1602(F); ^ 121, 15 U.S.C. ^ 1631; ^
130(A), 15 U.S.C. ^ 1640(A). 

/39/  ^ 112, 15 U.S.C. ^ 1611; ^ 130, 15 U.S.C. ^ 1640. 

/40/  SEE KORDEL V. UNITED STATES, 335 U.S. 345 (1948).  SEE ALSO W.
LAFAVE & A. SCOTT, CRIMINAL LAW 72 (1972). 

/41/  15 U.S.C. ^ 1640.  THIS SECTION REFERS ONLY TO THE FAILURE TO
PROVIDE "INFORMATION REQUIRED UNDER THIS PART TO BE DISCLOSED . . ." 
(EMPHASIS SUPPLIED.)  THE ITALICIZED LANGUAGE WAS ADDED TO THE STATUTE
TO DISTINGUISH DISCLOSURE REQUIRED IN REGARD TO SALE TRANSACTIONS FROM
THAT REQUIRED IN REGARD TO ADVERTISING.  H. R. REP. NO. 1040, SUPRA, N.
18, AT 19.  30.  THE PENALTY PROVISION APPLIES BOTH TO THE FAILURE TO
DISCLOSE INFORMATION SPECIFICALLY REQUIRED BY THE STATUTE AND TO THE
FAILURE TO ABIDE BY REGULATIONS PROMULGATED BY THE BOARD TO GOVERN SUCH
DISCLOSURE. 

/42/  IN REGARD TO SOME TRANSACTIONS TO WHICH THE FOUR INSTALLMENT
RULE APPLIES, MERCHANTS NEED NOT REPORT THE AMOUNT AND RATE OF FINANCE
CHARGE.  FEDERAL RESERVE BOARD ADVISORY LETTER OF JULY 24, 1969, BY J.
L. ROBERTSON; FEDERAL RESERVE BOARD LETTER NO. 30, JULY 8, 1969, BY
FREDERIC SOLOMON. 

[[DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
REHNQUIST CONCUR, DISSENTING IN PART. 

I HAVE CONCLUDED THAT THIS IS NOT A PROPER CASE FOR SUMMARY JUDGMENT
UNDER FED. RULE CIV. PROC. 56(C), WHICH PROVIDES THAT SUMMARY JUDGMENT
ONLY MAY BE GRANTED IF THERE IS "NO GENUINE ISSUE AS TO ANY MATERIAL
FACT" AND "THE MOVING PARTY IS ENTITLED TO A JUDGMENT AS A MATTER OF
LAW."  AS I INTERPRET THE PRESENT RECORD IN LIGHT OF OUR DECISIONS,
SEE, E. G., ADICKES V. S. H. KRESS & CO., 398 U.S. 144; WHITE MOTOR CO.
V. UNITED STATES, 372 U.S. 253; UNITED STATES V. DIEBOLD, INC., 369
U.S. 654, THERE REMAINS UNRESOLVED A GENUINE ISSUE OF MATERIAL FACT. 
ALTHOUGH I AGREE WITH THE MAJORITY THAT REGULATION Z IS VALID AND
ACCORDINGLY WOULD REVERSE THE DECISION OF THE COURT OF APPEALS, I WOULD
REMAND THIS CASE TO THE DISTRICT COURT FOR RESOLUTION OF THAT MATERIAL
ISSUE. 

THE DISCLOSURE PROVISIONS OF THE TRUTH IN LENDING ACT APPLY ONLY TO
AN EXTENSION OF "CONSUMER CREDIT."  15 U.S.C. ^ 1631.  THUS, IN ORDER
TO ASSERT SUCCESSFULLY A CLAIM UNDER THE ACT FOR THE STATUTORY PENALTY
AND REIMBURSEMENT FOR THE COSTS OF THE ACTION, SEE ID., ^ 1640,
PETITIONER, INTER ALIA, MUST SATISFY HER BURDEN OF PROVING THAT
RESPONDENT EXTENDED CONSUMER CREDIT WITHIN THE MEANING OF THE SECTION
103(E) OF THE ACT, 15 U.S.C. ^ 1602(E), DEFINES "CREDIT" AS "THE RIGHT
GRANTED BY A CREDITOR TO A DEBTOR TO DEFER PAYMENT OF DEBT OR TO INCUR
DEBT AND DEFER ITS PAYMENT."  IN HER COMPLAINT, PETITIONER MERELY
ALLEGES THAT RESPONDENT "EXTENDS CONSUMER CREDIT AS DEFINED IN
REGULATION Z, 12 C. F. R. 226.2(K) . . ."  RESPONDENT DENIES IN ITS
ANSWER THAT ITS CONTRACT WITH PETITIONER INVOLVED A "CREDIT
TRANSACTION."  IN ONE PARAGRAPH RESPONDENT AVERS:  "UNDER THE CONTRACT
EXECUTED BY THE CUSTOMER AND DEFENDANT, THE CUSTOMER AGREES TO PAY A
STATED AMOUNT PER MONTH FOR HALF OF THE LIFE OF THE CONTRACT AND
DEFENDANT AGREES TO SUPPLY THE MAGAZINES FOR THE FULL TERM OF THE
CONTRACT.  AT ALL TIMES THE CUSTOMER HAS PREPAID FOR THE MAGAZINES TO
BE DELIVERED.  UNDER ITS ARRANGEMENT WITH MOST OF THE PUBLISHERS,
DEFENDANT REIMBURSES THE PUBLISHER PERIODICALLY DURING THE FULL TERMS
OF THE SUBSCRIPTION."  IN ANOTHER PARAGRAPH IT AVERS:  "AT NO POINT
DURING THE LIFE OF THE CONTRACT HAS DEFENDANT PAID MONEY TO A THIRD
PERSON OR SUPPLIED GOODS OR SERVICES TO THE CUSTOMER FOR WHICH
REIMBURSEMENT IS EXPECTED FROM THE CUSTOMER IN THE FUTURE." 

ON THE BASIS SOLELY OF THESE ALLEGATIONS, ONE WOULD CONCLUDE THAT
THE CONTRACT BETWEEN THE PETITIONER AND THE RESPONDENT DID NOT
CONSTITUTE A CREDIT TRANSACTION.  IF RESPONDENT MERELY COLLECTED $3.95
PER MONTH FROM EACH CUSTOMER AND SENT THE RECEIPTS PERIODICALLY TO THE
PUBLISHER, /1/  LESS THE RESPONDENT'S COMMISSION, RESPONDENT NEVER
WOULD HAVE MADE ANY ADVANCES FOR THE CUSTOMER, AND THE CUSTOMER WOULD
OWE NOTHING TO THE RESPONDENT FOR THE LOAN OF MONEY OR, IN THE WORDS OF
THE ACT, AS A "FINANCE CHARGE."  ON THE OTHER HAND, IF RESONDENT
ADVANCED ALL OR PART OF THE SUBSCRIPTION PRICE TO THE PUBLISHERS,
RESPONDENT WOULD BE ADVANCING "CREDIT" FOR THE BENEFIT OF THE
CUSTOMER.  /2/  THE LEGISLATIVE HISTORY INDICATES THAT "THE DISCLOSURE
REQUIREMENT WOULD NOT APPLY TO TRANSACTIONS WHICH ARE NOT COMMONLY
THOUGHT OF AS CREDIT TRANSACTIONS . . ."  /3/  AS PROFESSOR CORBIN HAS
STATED:  "A TRANSACTION MAY BE AN INSTALLMENT CONTRACT WITHOUT BEING A
CREDIT TRANSACTION AT ALL.  BOTH PARTIES MAY AGREE TO PERFORM IN
INSTALLMENTS WITHOUT PROMISING TO RENDER ANY PERFORMANCE IN ADVANCE OF
FULL PAYMENT OF THE PRICE OF EACH INSTALLMENT SO RENDERED."  /4/  THE
ACT, IN DEFINING "CREDIT," REFERS TO THE DEFERRED PAYMENT OF A "DEBT." 
A DEBT, HOWEVER, IS MORE THAN A BINDING CONTRACTUAL OBLIGATION TO PAY A
SUM OF MONEY IN THE FUTURE UPON THE PERFORMANCE OF CERTAIN CONDITIONS
BY THE OTHER PARTY TO THE CONTRACT.  IT IS AN UNCONDITIONAL OBLIGATION
TO PAY.  /5/  THUS, IN MY VIEW, A PROPER RESOLUTION OF THE ISSUE
WHETHER RESPONDENT EXTENDED CREDIT TO PETITIONER DEPENDS, AT LEAST IN
PART, ON THE CONTRACTUAL RELATIONSHIPS BETWEEN THE RESPONDENT AND THE
PUBLISHERS.  THE CONTRACTS BETWEEN RESPONDENT AND THE PUBLISHERS ARE
NOT IN THE PRESENT RECORD.  /6/ 

THE PLEADINGS, OF COURSE, ARE NOT THE ONLY PAPERS TO BE CONSIDERED
BY THE DISTRICT COURT IN DETERMINING WHETHER ONE PARTY OR THE OTHER IS
ENTITLED TO SUMMARY JUDGMENT.  UNDER RULE 56(C) THE COURT MUST CONSIDER
"THE PLEADINGS, DEPOSITIONS, ANSWERS TO INTERROGATORIES, AND ADMIISIONS
ON FILE, TOGETHER WITH THE AFFIDAVITS, IF ANY . . ."  DURING THE
COLLECTION PERIOD, RESPONDENT HAD SENT PETITIONER A DUNNING LETTER
REMINDING HER "THAT WE HAVE ORDERED THESE MAGAZINES IN ADVANCE AND THAT
YOU HAVE INCURRED AN OBLIGATION TO REPAY US.  THIS IS A CREDIT ACCOUNT,
AND AS SUCH MUST BE REPAID BY YOU ON A MONTHLY BASIS, MUCH THE SAME AS
IF YOU HAD PURCHASED ANY OTHER TYPE OF MERCHANDISE ON A MONTHLY BUDGET
PLAN."  RESPONDENT FORMALLY ADMITTED THAT IT HAD SENT THIS LETTER TO
PETITIONER.  ACCORDINGLY, IT WAS PROPERLY CONSIDERED BY THE DISTRICT
JUDGE.  /7/  BUT, I DO NOT VIEW THIS "ADMISSION" AS CONCLUSIVE OR
SUFFICIENT PROOF THAT RESPONDENT HAD EXTENDED CREDIT WITHIN THE MEANING
OF THE ACT AT THE TIME THE CONTRACT BETWEEN PETITIONER AND RESPONDENT
WAS ENTERED INTO.  /8/  FIRST, THIS IS NOT AN ADMISSION IN TERMS THAT
CREDIT WAS EXTENDED WITHIN THE MEANING OF THE ACT.  SECOND, SINCE
PETITIONER AT THE TIME THE LETTER WAS SENT WAS THREE MONTHS IN ARREARS,
IT MAY BE THAT RESPONDENT HAD ADVANCED MONEY ON HER ACCOUNT ONLY AFTER
SHE FAILED TO MEET HER CONTRACTUAL OBLIGATION.  IT IS SETTLED UNDER OUR
DECISIONS THAT MATERIAL LODGED BY THE MOVING PARTY "MUST BE VIEWED IN
THE LIGHT MOST FAVORABLE TO THE OPPOSING PARTY."  ADICKES V. KRESS &
CO., 398 U.S., AT 157, 158 - 159; UNITED STATES V. DIEBOLD, INC., 369
U.S., AT 655. 

RESPONDENT IS NOT DEPRIVED OF THE BENEFIT OF THIS PRINCIPLE OF
INTERPRETATION MERELY BECAUSE IT DID NOT FILE AN AFFIDAVIT
CONTROVERTING THE CONTENTS OF THE LETTER.  RULE 56(E) PROVIDES THAT
"(WHEN A MOTION FOR SUMMARY JUDGMENT IS MADE AND SUPPORTED AS PROVIDED
IN THIS RULE, AN ADVERSE PARTY MAY NOT REST UPON THE MERE ALLEGATIONS
OR DENIALS OF HIS PLEADING, BUT HIS RESPONSE, BY AFFIDAVITS OR AS
OTHERWISE PROVIDED IN THIS RULE, MUST SET FORTH SPECIFIC FACTS SHOWING
THAT THERE IS A GENUINE ISSUE FOR TRIAL.  IF HE DOES NOT SO RESPOND,
SUMMARY JUDGMENT, IF APPROPRIATE, SHALL BE ENTERED AGAINST HIM."  THE
ADVISORY COMMITTEE NOTE ON THE AMENDMENT WHICH ADDED THIS PROVISION TO
THE RULE, HOWEVER, STATED THAT "(WHERE THE EVIDENTIARY MATTER IN
SUPPORT OF THE MOTION DOES NOT ESTABLISH THE ABSENCE OF A GENUINE
ISSUE, SUMMARY JUDGMENT MUST BE DENIED EVEN IF NO OPPOSING EVIDENTIARY
MATTER IS PRESENTED."  WE CITED THIS COMMENT WITH APPROVAL IN ADICKES
V. KRESS & CO., SUPRA, AT 160.  THE MOVING PARTY, IN THIS CASE
PETITIONER, /9/  MUST MEET HER BURDEN OF SHOWING THE ABSENCE OF A
GENUINE ISSUE AS TO ANY MATERIAL FACT.  ID., AT 157.  I CANNOT CONCLUDE
THAT SHE MET THAT BURDEN.  THE DISTRICT JUDGE WAS NOT POSSESSED OF
SUFFICIENT INFORMATION TO RESOLVE PROPERLY THE ISSUE WHETHER CREDIT HAD
BEEN EXTENDED.  UNDER THESE CIRCUMSTANCES, HE SHOULD NOT HAVE GRANTED
SUMMARY JUDGMENT.  CF. WHITE MOTOR CO. V. UNITED STATES, 372 U.S., AT
263. 

[[DFN 

/1/  THERE ARE SUGGESTIONS IN THE RECORD THAT RESPONDENT IS A WHOLLY
OWNED SUBSIDIARY OF TIME, INC.  RESPONDENT, HOWEVER, SOLD NOT ONLY
LIFE, A TIME, INC., PUBLICATION, BUT MAGAZINES OF OTHER PUBLISHERS. 

/2/  IN A FREE-ENTERPRISE SYSTEM, ONE MUST PRESUME THAT THERE IS A
"FINANCE CHARGE" FOR THE ADVANCE OF CREDIT.  IT WOULD NONTHELESS BE A
"FINANCE CHARGE" ALTHOUGH IT WERE WHOLLY UNDISCLOSED OR NOT SEPARATELY
STATED IN AN ACCOUNT RENDERED TO THE CUSTOMER. 

/3/  S REP. NO. 392, 90TH CONG., 1ST SESS., 14; H. R. REP. NO. 1040,
90TH CONG., 1ST SESS., 25. 

/4/  3A A. CORBIN, CONTRACTS ^ 687, P. 246 (1960).  A PUBLISHED
OPINION OF THE FEDERAL RESERVE BOARD RECOGNIZES THAT INSTALLMENT
PAYMENT PLANS MAY NOT INVOLVE AN EXTENSION OF CREDIT WHEN CHARGES FOR
SERVICES RENDERED DO NOT EXCEED PRIOR PAYMENTS.  FRB OPINION LETTER NO.
262 (1970). 

/5/  3A A. CORBIN, CONTRACTS ^ 691 (1960). 

/6/  MY BROTHER POWELL ASSERTS THAT, GIVEN THE UNDISPUTED FACT THAT
PETITIONER AGREED TO PAY IN ADVANCE, RESPONDENT AS A MATTER OF LAW
COULD NOT HAVE EXTENDED CREDIT.  POST, AT 383 - 384.  WE DO NOT,
HOWEVER, KNOW WHAT THE FINANCIAL RELATIONSHIPS IN THIS TRIPARTITE
ARRANGMENT ARE.  FOR EXAMPLE, IT MAY BE THAT RESPONDENT ADVANCES THE
FULL FIVE-YEAR SUBSCRIPTION PRICE TO THE PUBLISHER ON THE SUBSCRIBER'S
BEHALF WHEN THE CONTRACT BETWEEN THE SUBSCRIBER AND RESPONDENT IS
EXECUTED.  IF THAT IS SO, THE SUBSCRIBER MAY RECEIVE AN UNCONDITIONAL
RIGHT TO RECEIVE MAGAZINES FROM THE PUBLISHER OVER THE FIVE-YEAR
PERIOD, WHETHER OR NOT HE MEETS HIS CONTRACTUAL OBLIGATIONS WITH
RESPONDENT.  UNDER THESE CIRCUMSTANCES, RESPONDENT WILL BE ACTING AS A
FINANCIER, ENABLING THE SUBSCRIBER TO TAKE ADVANTAGE OF THE PUBLISHER'S
FIVE-YEAR SUBSCRIPTION OFFER, BUT YET TO DEFER PAYMENT ON THE
SUBSCRIPTION PRICE.  ANY "PROFIT" RESPONDENT RECEIVES WILL BE LARGELY
ATTRIBUTABLE TO ITS SERVICES AS A FINANCIER.  I DO NOT SEE THAT SUCH A
FINANCIAL ARRANGEMENT DIFFERS SUBSTANTIALLY FROM THE CASE WHERE A
SUBSCRIBER BORROWS THE FULL SUBSCRIPTION PRICE FROM A BANK AND PAYS THE
PUBLISHER DIRECTLY, OBLIGATING HIMSELF TO REPAY THE BANK IN EQUAL
INSTALLMENTS, WITH INTEREST, OVER TWO AND ONE-HALF YEARS.  AS MY
BROTHER POWELL ARGUES, THE SUBSCRIBER UNDER THOSE CIRCUMSTANCES WILL BE
ADVANCING CREDIT TO THE PUBLISHER BECAUSE HE HAS PAID FOR ALL MAGAZINES
IN ADVANCE, BUT IT CANNOT BE DOUBTED THAT AT THE SAME TIME THE BANK HAS
ADVANCED CREDIT TO THE SUBSCRIBER. 

/7/  RESPONDENT MAILED ANOTHER LETTER TO PETITIONER WHICH STATED:
"WHEREAS, FPS, ACTS INITIALY (SIC) AS AGENT FOR THE VARIOUS PUBLISHERS;
UPON ACCEPTANCE OF HER CONTRACT, FPS THEREAFTER ACTS SOLELY AS
FINANCIER, AND CO-GUARANTER (SIC) OF SERVICE WITH THE VARIOUS
PUBLISHERS; WHEREAS, FPS, HAS FULLY INVESTED IN MRS. MOURNING'S
CONTRACT AND DOES NOT RECEIVE REFUND IN PART OR FULL FROM ANY, OR, ALL
PUBLISHERS; FOR SAID FPS, INVESTMENT, WE THEREFORE, MUST INSIST ON
COMPLIANCE OF YOUR CLIENT TO THE TERMS OF SAID CONTRACT . . ." 
ALTHOUGH RESPONDENT ADMITTED THAT THE LETTER APPEARED ON ITS STATIONERY
AND WAS WRITTEN BY AN EMPLOYEE, IT DENIED THAT THE EMPLOYEE WAS
AUTHORIZED TO SEND THE LETTER.  ACCORDINGLY, SINCE THERE WAS AN ISSUE
OF FACT WHETHER THE LETTER WAS AUTHORIZED AND THUS A BINDING ADMISSION,
THE LETTER COULD NOT BE CONSIDERED PROPERLY ON PETITIONER'S MOTION FOR
SUMMARY JUDGMENT.  CF. 3 W. BARRON & A. HOLTZOFF, FEDERAL PRACTICE AND
PROCEDURE ^ 1231, P. 75 (1971 SUPP.). 

/8/  WE NEED NOT RESOLVE HERE WHETHER, IF THE CONTRACT WAS NOT
ORIGINALLY A CREDIT TRANSACTION, PETITIONER'S OWN BREACH COULD HAVE
CONVERTED IT RETROACTIVELY INTO A CREDIT TRANSACTION WITHIN THE MEANING
OF THE ACT. 

/9/ BOTH PARTIES MOVED FOR SUMMARY JUDGMENT.  THAT DOES NOT RELIEVE
THE DISTRICT JUDGE OF HIS RESPONSIBLITY TO CONSIDER EACH MOTION
SEPARATELY IN LIGHT OF THE THEORIES ADVANCED BY EACH PARTY AND TO
PROCEED TO TRIAL IF HE CONCLUDES THAT THERE IS A GENUINE ISSUE OF
MATERIAL FACT TO BE RESOLVED.  SEE 6 J. MOORE, FEDERAL PRACTICE PARA.
56.13 (2D ED. 1972). 

[[DOP 

MR. JUSTICE POWELL, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS ON THE GROUND
THAT THERE WAS NO EXTENSION OF CONSUMER CREDIT WITHIN THE MEANING OF
THE TRUTH IN LENDING ACT.  /1/  THE MAJORITY TAKES THE POSITION THAT
THE CREDIT ISSUE IS A QUESTION OF FACT PROPERLY RESOLVED AGAINST
RESPONDENT ON PETITIONER'S MOTION FOR SUMMARY JUDGMENT BELOW.  I CANNOT
AGREE.  IN MY VIEW, THE UNDISPUTED FACTS ESTABLISH AS A MATTER OF LAW
THAT THE TRANSACTION BETWEEN PETITIONER AND RESPONDENT DID NOT INVOLVE
AN EXTENSION OF CONSUMER CREDIT.  FOR THE SAME REASON, WHILE I AM IN
AGREEMENT WITH MUCH OF MR. JUSTICE DOUGLAS' DISSENTING OPINION, I SEE
NO REASON TO REMAND THE CASE FOR THE TAKING OF EVIDENCE. 

        I 

CLEARLY THE ACT APPLIES ONLY TO TRANSACTIONS INVOLVING THE EXTENSION
OF CREDIT.  THE CONGRESSIONAL DECLARATION OF PURPOSE IS EXPLICIT: 

     "THE CONGRESS FINDS THAT ECONOMIC STABILIZATION WOULD BE

  ENHANCED AND THE COMPETITION AMONG THE VARIOUS FINANCIAL

  INSTITUTIONS AND OTHER FIRMS ENGAGED IN THE EXTENSION OF CONSUMER

CREDIT WOULD BE STRENGTHENED BY THE INFORMED USE OF CREDIT."  15

  U.S.C. ^ 1601. 

THE PHRASE "EXTENSION OF CONSUMER CREDIT" IS NOT DEFINED IN THE ACT. 
NOR DOES THE ACT'S DEFINITION OF "CREDIT" PROVIDE ANY ENLIGHTENMENT. 
/2/  HOWEVER, A TRANSACTION IS COMMONLY UNDERSTOOD TO INVOLVE CREDIT
WHEN ONE PARTY RECEIVES VALUE IN EXCHANGE FOR HIS UNCONDITIONAL PROMISE
TO PAY THE OTHER PARTY FOR SUCH VALUE IN THE FUTURE.  THE MERE FACT
THAT A PARTY OBLIGATES HIMSELF IN A CONTRACT TO PAY FOR GOODS OR
SERVICES IN INSTALLMENTS OVER A PERIOD OF TIME DOES NOT RENDER THE
CONTRACT A CREDIT TRANSACTION: 

"A TRANSACTION MAY BE AN INSTALLMENT CONTRACT WITHOUT BEING A CREDIT
TRANSACTION AT ALL.  BOTH PARTIES MAY AGREE TO PERFORM IN INSTALLMENTS
WITHOUT PROMISING TO RENDER ANY PERFORMANCE IN ADVANCE OF FULL PAYMENT
OF THE PRICE OF EACH INSTALLMENT SO RENDERED."  3A A. CORBIN, CONTRACTS
^ 687, P. 246 (1960). 

THE TRANSACTION BEFORE THE COURT MAY WELL HAVE BEEN A CREDIT
TRANSACTION, BUT IT WAS NOT RESPONDENT THAT EXTENDED THE CREDIT. 
PETITIONER OBLIGATED HERSELF TO PAY IN ADVANCE FOR THE MAGAZINES SHE
WAS TO RECEIVE.  THE CONTRACT REQUIRED PETITIONER TO PAY EQUAL
INSTALLMENTS OVER A 30-MONTH PERIOD, BUT RESPONDENT WAS OBLIGATED ONLY
TO PROVIDE MAGAZINES OVER 60 MONTHS.  IN EFFECT, PETITIONER PAID EVERY
MONTH FOR TWO MONTHS' WORTH OF MAGAZINES.  UNTIL THE LAST MAGAZINE HAD
BEEN DELIVERED, PETITIONER WOULD HAVE PAID FOR MORE MAGAZINES THAN SHE
RECEIVED.  THUS, THE CONTRACT CALLED FOR THE EXTENSION OF CREDIT BY
PETITIONER TO RESPONDENT.  FOR THIS REASON IT WAS NOT AN "EXTENSION OF
CONSUMER CREDIT" WITHIN THE MEANING OF THE ACT.  SEE 15 U.S.C. ^
1602(H). 

THE FEDERAL RESERVE BOARD, UPON WHOSE AUTHORITY TO INTERPRET THE ACT
THE MAJORITY SO HEAVILY RELIES IN SUSTAINING REGULATION Z, HAS
INDICATED THAT A NECESSARY ELEMENT IN A CONSUMER CREDIT TRANSACTION IS
THE CONSUMER'S OBLIGATION TO PAY AFTER HE HAS RECEIVED THE BARGAINED
FOR GOODS OR SERVICES.  IN A PUBLISHED OPINION LETTER DEALING WITH THE
PRACTICE OF ASSESSING OBSTETRICAL SERVICES IN PERIODIC INSTALLMENTS,
THE BOARD STATED THAT "(AS LONG AS THERE ARE NO FINANCE CHARGES
ASSESSED, AND AT NO POINT DO THE CHARGES FOR THE SERVICES RENDERED
EXCEED THE PAYMENTS TO THE EXTENT THAT IT WOULD REQUIRE MORE THAN 4 OF
THE PERIODIC INSTALLMENTS TO REPAY THE OBLIGATION, THEN THE PLAN WOULD
NOT FALL WITHIN THE PROVISIONS OF REGULATION Z."  /3/  (EMPHASIS
SUPPLIED.)  THIS STATEMENT IMPLICITLY RECOGNIZES THAT CREDIT IS
EXTENDED ONLY WHEN THE VALUE OF GOODS OR SERVICES PROVIDED EXCEEDS THE
PAYMENTS MADE.  /4/

        II 

IMPLICIT IN THE POSITIONS BOTH OF MR. JUSTICE DOUGLAS AND OF THE
MAJORITY IS THE ASSUMPTION THAT, EVEN ADMITTING PETITIONER WAS TO PAY
FOR EACH MAGAZINE BEFORE RECEIVING IT, UNDER SOME FACTUAL CIRCUMSTANCES
RESPONDENT MIGHT NEVERTHELESS HAVE EXTENDED CREDIT.  /5/  THUS, MR.
JUSTICE DOUGLAS STATES THAT "IF RESPONDENT ADVANCED ALL OR PART OF THE
SUBSCRIPTION PRICE OT THE PUBLISHERS, RESPONDENT WOULD BE ADVANCING
'CREDIT' FOR THE BENEFIT OF THE CUSTOMER."  THE MAJORITY IS LESS CLEAR
ON THIS POINT, STATING ONLY THAT "(IN SOME CASES IN WHICH A CONSUMER
PAYS IN INSTALLMENTS FOR A MAGAZINE SUBSCRIPTION, CREDIT MAY NOT HAVE
BEEN EXTENDED TO THE CONSUMER."  ANTE, AT 362 N. 16.  THE IMPLICATION,
HOWEVER, IS THAT IN SOME SUCH TRANSACTIONS, THOUGH THE CONSUMER PAYS
FOR THE MAGAZINES IN ADVANCE, HE MAY BE THE RECIPIENT OF CREDIT.  I AM
UNABLE TO AGREE THAT UNDER ANY SET OF CIRCUMSTANCES, GIVEN THE
UNDISPUTED FACT THAT PETITIONER AGREED TO PAY IN ADVANCE FOR EACH
MAGAZINE, RESPONDENT MIGHT HAVE EXTENDED CREDIT.  PETITIONER DID NOT
OBTAIN A LOAN FROM RESPONDENT WHICH SHE WOULD BE UNCONDITIONALLY
OBLIGATED TO REPAY.  SHE ENTERED INTO A CONTRACT IMPOSING CONTINUING,
MUTUALLY DEPENDENT OBLIGATIONS ON BOTH PARTIES.  /6/  WHETHER
RESPONDENT ADVANCED ANY PART OF THE SUBSCRIPTION PRICE TO MAGAZINE
PUBLISHERS IS QUITE IMMATERIAL TO A DETERMINATION OF THE LEGAL EFFECT
OF THE ONLY TRANSACTION INVOLVED IN THIS CASE:  WHETHER THERE WAS
EXTENSION OF CONSUMER CREDIT BY RESPONDENT TO PETITIONER.  THE ONLY
CONTRACT AT ISSUE IS THAT BETWEEN THE PARTIES; HOW AND UPON WHAT TERMS
RESPONDENT MAY HAVE ARRANGED TO OBTAIN THE MAGAZINES FOR DELIVERY TO
PETITIONER IN FULFILLMENT OF ITS CONTRACTUAL OBLIGATIONS IS OF NO
CONCERN TO PETITIONER.  NOR CAN ANY SUCH ARRANGEMENT BY RESPONDENT WITH
A THIRD PARTY CHANGE THE NATURE OF THE TRANSACTION BETWEEN THE PARTIES
TO THIS LITIGATION.  /7/ 

THE CONTROLLING FACTS THEREFORE ARE NOT IN DISPUTE, HAVING BEEN
ADMITTED BY THE CROSS-MOTIONS FOR SUMMARY JUDGMENT, AND I CAN PERCEIVE
OF NO WAY IN WHICH THEY CAN BE CONSTRUED AS AN EXTENSION OF CONSUMER
CREDIT BY RESPONDENT TO PETITIONER.  A REMAND, UNNESSARILY BURDENING
THE PARTIES AND THE COURT BELOW, WOULD SERVE NO USEFUL PURPOSE.  AS A
MATTER OF LAW RESPONDENT DID NOT EXTEND CREDIT WITHIN THE MEANING OF
THE TRUTH IN LENDING ACT.  I WOULD AFFIRM THE JUDGMENT BELOW. 

[[DFN 

/1/  HAVING THIS VIEW OF THE CASE, I FIND IT UNNECESSARY TO ADDRESS
THE OTHER TWO ISSUES, NAMELY:  (I) WHETHER THE FEDERAL RESERVE BOARD
EXCEEDED ITS AUTHORITY IN ADOPTING REGULATION Z, WHICH EXTENDS THE
COVERAGE OF THE ACT TO TRANSACTIONS IN WHICH NO FINANCE CHARGE CAN BE
IDENTIFIED; AND (II) WHETHER THE CIVIL PENALTY PROVISION OF 15 U.S.C. ^
1640(A) MAY VALIDLY BE IMPOSED IN A CASE WHERE, BY CONCESSION OF THE
PARTIES ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, THE TRANSACTION DOES NOT
INVOLVE A FINANCE CHARGE. 

/2/  "THE TERM 'CREDIT' MEANS THE RIGHT GRANTED BY A CREDITOR TO A
DEBTOR TO DEFER PAYMENT OF DEBT OR TO INCUR DEBT AND DEFER ITS
PAYMENT."  15 U.S.C. ^ 1602(E).  THE ACT PROVIDES NO GLOSS ON THE TERMS
"DEBTOR" AND "DEBT," AND THE DEFINITION OF "CREDITOR" IS LIMITING
RATHER THAN EXPLANATORY.  ("THE TERM 'CREDITOR' REFERS ONLY TO
CREDITORS WHO REGULARLY EXTEND, OR ARRANGE FOR THE EXTENSION OF, CREDIT
FOR WHICH THE PAYMENT OF A FINANCE CHARGE IS REQUIRED.  . ."  15 U.S.C.
^ 1602(F).) 

/3/  FRB OPINION LETTER NO. 262 (1970); 4 CCH CONSUMER CREDIT GUIDE
PARA. 30,516. 

/4/  LEGISLATIVE HISTORY BOLSTERS THE VIEW THAT CONGRESS ASSUMED
"CREDIT" MEANT THE RECEIPT OF GOODS OR SERVICES IN ADVANCE OF PAYING
FOR THEM.  IN EARLIER VERSIONS OF THE ACT, THE DEFINITION OF CREDIT
INCLUDED "ANY CONTRACT . . . OF SALE OF PROPERTY OR SERVICES, EITHER
FOR PRESENT OR FUTURE DELIVERY, UNDER WHICH PART OR ALL OF THE PRICE IS
PAYABLE SUBSEQUENT TO THE MAKING OF SUCH SALE OR CONTRACT; . . . ANY
CONTRACT OR ARRANGMENT FOR THE HIRE, BAILMENT, OR LEASING OF PROPERTY .
. ."  S. 1740, 87TH CONG., 1ST SESS.; S. 5, 90TH CONG., 1ST SESS.  (AS
INTRODUCED JAN. 11, 1967).  DURING THE SENATE HEARINGS, A QUESTION WAS
RAISED AS TO WHETHER ANY FINANCE CHARGE WOULD BE ATTRIBUTABLE TO
CERTAIN INCLUDED TRANSACTIONS, PARTICULARLY ORDINARY BAILMENT AND LEASE
ARRANGEMENTS.  HEARINGS ON S. 5 BEFORE THE SUBCOMMITTEE ON FINANCIAL
INSTITUTIONS OF THE SENATE COMMITTEE ON BANKING AND CURRENCY, 90TH
CONG., 1ST SESS., 663 (1967) (STATEMENT OF J. L. ROBERTSON, VICE
CHAIRMAN, BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM).  THIS
CRITICISM WAS HEEDED AND THE FINAL VERSION OF THE BILL SUBSTITUTED THE
LANGUAGE NOW FOUND IN THE ACT (15 U.S.C. ^ 1602(E)) WITH THE FOLLOWING
EXPLANATION:  "THE ORIGINAL S. 5 LANGUAGE WAS DELETED BECAUSE IT WAS
SOMEWHAT CUMBERSOME AND SWEEPING AND REFERRED TO VARIOUS TYPES OF
LEASE, LIKE THE "PAID DURING SERVICE" MAGAZINE CONTRACTS OFFERED BY
RESPONDENT, OFTEN IMPOSES A NONCANCELLABLE OBLIGATION ON THE LESSEE OR
CONSUMER TO PAY IN A SERIES OF INSTALLMENTS.  YET THE LESSOR DOES NOT
EXTEND CREDIT BECAUSE THE LESSEE ORDINARILY PAYS IN ADVANCE FOR EACH
PERIOD DURING WHICH HE ENJOYS THE USE OF THE PROPERTY.  PETITIONER, BY
THE SAME REASONING, WAS NO MORE THE RECIPIENT OF CREDIT THAN IS THE
ORDINARY LESSEE OR BAILEE.  IT WOULD BE INCONSISTENT WITH THIS
LEGISLATIVE HISTORY TO READ "EXTENSION OF CREDIT" TO INCLUDE VERY
NONCANCELLABLE INSTALLMENT OBLIGATION. 

/5/  THE DISTRICT COURT FOUND THAT THERE WAS NO ISSUE AS TO ANY
MATERIAL FACT IN THIS CASE.  THE COURT OF APPEALS DID NOT DISTURB THIS
FINDING.  WHETHER ONE AGREES WITH THIS FINDING AS DOES THE MAJORITY OR
DISAGREES FOR REASONS STATED BY MR. JUSTICE DOUGLAS, THE DISTRICT
COURT'S CONCLUSION THAT THE UNCONTROVERTED FACTS ESTABLISH A CONSUMER
CREDIT TRANSACTION IS CLEARLY A CONCLUSION OF LAW AND THEREFORE IS
ENTITLED TO NO PRESUMPTION OF CORRECTNESS.  NOR DO RESPONDENT'S DUNNING
LETTERS TO PETITIONER DESCRIBING HER OBLIGATION AS A CREDIT ACCOUNT
CREATE ANY SUCH PRESUMPTION.  AGAIN, SUCH STATEMENTS ONLY EXPRESS A
LEGAL CONCLUSION AND DO NOT ESTABLISH THE EXISTENCE OF A CONSUMER
CREDIT TRANSACTION WITHIN THE MEANING OF THE ACT. 

/6/  IF RESPONDENT FAILED TO DELIVER THE MAGAZINES AS AGREED PRIOR
TO COMPLETION OF THE SPECIFIED PAYMENTS, PETITIONER WOULD HAVE NO
FURTHER OBLIGATION TO PAY: 

"A CONTRACT FOR THE SALE OF GOODS MAY BE AN INSTALLMENT CONTRACT
WITH RESPECT TO THE GOODS SOLD AS WITH RESPECT TO PAYMENTS OF THE
PRICE.  THE NON-DELIVERY OF AN INSTALLMENT OR DELIVERY OF A
NONCONFORMING INSTALLMENT WHEN REQUIRED BY THE CONTRACT IS A BREACH FOR
WHICH AN ACTION CAN BE MAINTAINED AT ONCE.  THERE IS NO DOUBT ALSO THAT
THE BUYER IS PRIVILEGED TO WITHHOLD PAYMENT OF THE PRICE OF THE
UNDELIVERED INSTALLMENT OR OF A NONCONFORMING INSTALLMENT THAT IS
RIGHTFULLY REJECTED.  . .  (THE BUYER DOES NOT HAVE TO EXTEND SUCH
CREDIT (BEYOND THAT WHICH WAS AGREED UPON) TO THE SELLER BY MAKING
PAYMENTS WITHOUT RECEIVING THE AGREED GOODS."  3A A. CROBIN, CONTRACTS
^ 691, P. 264 (1960).  SEE FLA. STAT. ANN. ^^ 672.2 - 612, 672.2 - 711,
672.2 - 717 (1966). 

/7/  INDEED, PETITIONER'S COMPLAINT AVERS THAT THE INSTALLMENT
CONTRACT FOR THE PURCHASE AND SALE OF THE MAGAZINES IS "THE ONLY
INSTRUMENT EXECUTED AND EXISTING BETWEEN THE PARTIES," AND THAT
RESPONDENT THEREBY "EXTENDED) CONSUMER CREDIT AS DEFINED IN REGULATION
Z . . ."  THERE IS NO ALLEGATION AS TO EXTENSION OF CREDIT BY THE
PUBLISHERS OR BY ANY THIRD PERSON.  SECOND AMENDED COMPLAINT, APP. 3,
4. 

ERIC SCHNAPPER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE JACK GREENBERG, JAMES M. NABRIT III, M. DONALD DRESCHER,
AND LEONARD HELFAND. 

ROBERT S. RIFKIND ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE WILLIAM S. FRATES AND LARRY S. STEWART. 

A. RAYMOND RANDOLPH, JR., ARGUED THE CAUSE PRO HAC VICE FOR THE
UNITED STATES AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WOOD, ALAN
S. ROSENTHAL, AND GREER S. GOLDMAN. 

EDWARD DONALD FOSTER, RICHARD A. HESSE, AND BLAIR C. SHICK FILED A
BRIEF FOR THE NATIONAL CONSUMER LAW CENTER, INC., AS AMICUS CURIAE
URGING REVERSAL. 
..END :





PALMORE V. UNITED STATES, 411 U.S. 389 


       APPEAL FROM THE DISTRICT OF COLUMBIA COURT OF APPEALS 

     NO. 72 - 11.  ARGUED FEBRUARY 21, 1973 -- DECIDED APRIL 24,

  1973; APPEAL DISMISSED AND CERTIORARI GRANTED IN PART; 290 A. 2D

  573, AFFIRMED. 


    PALMORE WAS CONVICTED OF A FELONY IN VIOLATION OF THE DISTRICT

  OF COLUMBIA CODE BY THE SUPERIOR COURT OF THE DISTRICT OF

  COLUMBIA.  THE DISTRICT OF COLUMBIA COURT OF APPEALS, REJECTING

  PALMORE'S CONTENTION THAT HE WAS ENTITLED TO BE TRIED BY AN ART.

  III JUDGE WITH LIFETIME TENURE AND SALARY PROTECTION, AFFIRMED,

  CONCLUDING THAT UNDER THE PLENARY POWER TO LEGISLATE FOR THE

  DISTRICT OF COLUMBIA CONFERRED BY ART. I, ^ 8, CL. 17, OF THE

  CONSTITUTION, CONGRESS HAD "CONSTITUTIONAL POWER TO PROSCRIBE

  CERTAIN CRIMINAL CONDUCT ONLY IN THE DISTRICT AND TO SELECT THE

  APPROPRIATE COURT, WHETHER IT IS CREATED BY VIRTUE OF ARTICLE III

  OR ARTICLE I, TO HEAR AND DETERMINE . . . PARTICULAR CRIMINAL

  CASES WITHIN THE DISTRICT."  PALMORE SEEKS TO INVOKE THIS COURT'S

  APPELLATE JURISDICTION ON THE BASIS OF 28 U.S.C. ^ 1257 (2),

  WHICH PROVIDES FOR AN APPEAL TO THIS COURT FROM A FINAL JUDGMENT

  UPHOLDING THE VALIDITY OF "A STATUTE OF ANY STATE"  AGAINST A

  CLAIM THAT IT IS REPUGNANT TO THE CONSTITUTION.  HELD: 

     1.  THE DISTRICT OF COLUMBIA CODE IS NOT A STATE STATUTE FOR

  PURPOSES OF ^ 1257(2) AND THE LOWER COURT'S UPHOLDING OF THE

FEDRAL STATUTE IS THEREFORE NOT REVIEWABLE BY APPEAL BUT BY

  CERTIORARI.  PP. 394 - 397. 

     2.  NOT EVERY JUDICIAL PROCEEDING THAT IMPLICATES A CHARGE,

  CLAIM, OR DEFENSE BASED ON AN ACT OF CONGRESS OR A LAW MADE UNDER

  ITS AUTHORITY MUST BE PRESIDED OVER BY AN ART. III JUDGE.  PP.

397 - 410. 

     (A) THE JURISDICTIONAL GRANT RESPECTING "SUCH INFERIOR COURTS

  AS THE CONGRESS MAY FROM TIME TO TIME ORDAIN AND ESTABLISH"

  REQUIRES NEITHER THAT ONLY ART. III COURTS HEAR AND DECIDE CASES

  WITHIN THE JUDICIAL POWER OF THE UNITED STATES NOR THAT EACH

  INFERIOR COURT BE INVESTED WITH ALL THE JURISDICTION FLOWING FROM

  ART. III, AND FEDERAL CRIMINAL LAWS HAVE BEEN ENFORCED BY STATE,

  TERRITORIAL, AND MILITARY COURTS AND JUDGES WHO DID NOT ENJOY THE

  ART. III PROTECTIONS.  PP. 397 - 404. 

(B) THE STRICTLY LOCAL COURT SYSTEM CONSISTING OF THE SUPERIOR

  COURT AND THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA WAS

  CREATED BY THE DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL

  PROCEDURE ACT OF 1970 PURSUANT TO CONGRESS' PLENARY ART. I POWER

  TO LEGISLATE FOR THE DISTRICT OF COLUMBIA, AND WAS INTENDED TO

  CRIMINAL LITIGATION.  O'DONOGHUE V. UNITED STATES, 289 U.S. 516,

  DISTINGUISHED.  PP. 405 - 407. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHCIH BURGER, C.
J., AND BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, AND REHNQUIST,
JJ., JOINTED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 410. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

[[HC390'(ORIGINAL DOCUMENT PAGE 390)' 

ASIDE FROM AN INITIAL QUESTION OF OUR APPELLATE JURISDICTION UNDER
28 U.S.C. ^ 1257(2), THIS CASE REQUIRES US TO DECIDE WHETHER A
DEFENDANT CHARGED WITH A FELONY UNDER THE DISTRICT OF COLUMBIA CODE MAY
BE TRIED BY A JUDGE WHO DOES NOT HAVE PROTECTION WITH RESPECT TO TENURE
AND SALARY UNDER ART. III OF THE CONSTITUTION.  WE HOLD THAT UNDER ITS
ART. I, ^ 8, CL. 17, POWER TO LEGISLATE FOR THE DISTRICT OF COLUMBIA
CODE, ARE NOT ACCORDED LIFE TENURE AND PROTECTION AGAINST REDUCTION IN
SALARY.  IN THIS RESPECT, THE POSITION OF THE DISTRICT OF COLUMBIA
DEFENDANT IS SIMILAR TO THAT OF THE CITIZEN OF ANY OF THE 50 STATES
WHEN CHARGED WITH VIOLATION OF A STATE CRIMINAL LAW:  NEITHER HAS A
FEDERAL CONSTITUTIONAL RIGHT TO BE TRIED BEFORE JUDGES WITH TENURE AND
SALARY GUARANTEES. 

[[HC391'(ORIGINAL DOCUMENT PAGE 391)'

        I 

THE FACTS ARE UNCOMPLICATED.  IN JANUARY 1971, TWO OFFICERS OF THE
DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT OBSERVED A MOVING
AUTOMOBILE WITH LICENSE TAGS SUGGESTING THAT IT WAS A RENTED VEHICLE. 
ALTHOUGH NO TRAFFIC OR OTHER VIOLATION WAS THEN INDICATED, THE OFFICER
STOPPED THE VEHICLE FOR A SPOT-CHECK OF THE DRIVER'S LICENSE AND CAR
RENTAL AGREEMENT.  PALMORE, THE DRIVER OF THE VEHICLE, PRODUCED A
RENTAL AGREEMENT FROM THE GLOVE COMPARTMENT OF THE CAR AND EXPLAINED
WHY THE CAR APPEARED TO BE, BUT WAS NOT, OVERDUE.  DURING THIS TIME,
ONE OF THE OFFICERS OBSERVED THE HAMMER MECHANISM OF A GUN PROTRUDING
FROM UNDER THE ARMREST IN THE FRONT SEAT OF THE VEHICLE.  PALMORE WAS
ARRESTED AND LATER CHARGED WITH THE FELONY OF CARRYING AN UNREGISTERED
PISTOL IN THE DISTRICT OF COLUMBIA AFTER HAVING BEEN CONVICTED OF A
FELONY, IN VIOLATION OF THE DISTRICT OF COUMBIA CODE, ^ 22 - 3204
(1967).  /1/  HE WAS TRIED AND FOUND GUILTY IN THE SUPERIOR COURT OF
THE DISTRICT OF COLUMBIA. 

UNDER TITLE I OF THE DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL
PROCEDURE ACT OF 1970, 84 STAT. 473 (REORGANIZATION ACT), /2/ 

[[HC392'(ORIGINAL DOCUMENT PAGE 392)'  THE JUDGES OF THE SUPERIOR
COURT ARE APPOINTED BY THE PRESIDENT AND SERVE FOR TERMS OF 15 YEARS. 

[[HC393'(ORIGINAL DOCUMENT PAGE 393)'  D. C. CODE ANN. ^^ 11 -
1501(A), 11 - 1502 (SUPP. V, 1972).  /3/  PALMORE MOVED TO DISMISS THE
INDICTMENT AGAINST HIM, URGING THAT ONLY A COURT "ORDAINED) AND
ESTABLISHED)" IN ACCORDANCE WITH ART. III OF THE UNITED STATES
CONSTITUTION COULD CONSTITUTIONALLY TRY HIM FOR A FELONY PROSECUTION
UNDER THE DISTRICT OF COLUMBIA CODE.  HE ALSO MOVED TO SUPPRESS THE
PISTOL AS THE FRUIT OF AN ILLEGAL SEARCH AND SEIZURE.  THE MOTIONS WERE
DENIED IN THE SUPERIOR COURT, AND PALMORE WAS CONVICTED. 

THE DISTRICT OF COLUMBIA COURT OF APPEALS AFFIRMED, CONCLUDING THAT
UNDER THE PLENARY POWER TO LEGISLATE FOR THE DISTRICT OF COLUMBIA,
CONFERRED BY ART. I, ^ 8, CL. 17, OF THE CONSTITUTION, CONGRESS HAD
"CONSTITUTIONAL POWER TO PROSCRIBE CERTAIN CRIMINAL CONDUCT ONLY IN THE
DISTRICT AND TO SELECT THE APPROPRIATE COURT, WHETHER IT IS CREATED BY
VIRTURE OF ARTICLE III OR ARTICLE I, TO HEAR AND DETERMINE THESE
PARTICULAR CRIMINAL CASES WITHIN THE DISTRICT."  290 A.2D 573, 576 -
577 (1972).  PALMORE FILED A NOTICE OF APPEAL WITH THE DISTRICT OF
COLUMBIA COURT OF APPEALS AND HIS JURISDICTIONAL STATEMENT HERE,
PURPORTING TO PERFECT AN APPEAL UNDER 28 U.S.C. ^ 1257(2). 

[[HC394'(ORIGINAL DOCUMENT PAGE 394)'  WE POSTPONED FURTHER
CONSIDERATION OF OUR JURISDICTION TO REVIEW THIS CASE BY WAY OF APPEAL
TO THE HEARING ON THE MERITS.  409 U.S. 840 (1972). 

        II 

TITLE 28 U.S.C. ^ 1257 /4/  SPECIFIES THE CIRCUMSTANCES UNDER WHICH
THE FINAL JUDGMENTS OF THE HIGHEST COURT OF A STATE MAY BE REVIEWED IN
THIS COURT BY WAY OF APPEAL OR WRIT OF CERTIORARI.  AS AMENDED IN 1970
BY ^ 172(A) (1) OF THE REORGANIZATION ACT, 84 STAT. 590, THE TERM
"HIGHEST COURT OF A STATE" AS USED IN ^ 1257 INCLUDES THE DISTRICT OF
COLUMBIA COURT OF APPEALS.  APPEAL LIES FROM SUCH COURTS ONLY WHERE A
STATUTE OF THE UNITED STATES IS STRUCK DOWN, 28 U.S.C. ^ 1257(1), OR
WHERE A STATUTE OF A STATE IS SUSTAINED AGAINST FEDERAL CONSTITUTIONAL
ATTACK, ID., ^ 1257(2).  BECAUSE THE STATUTE AT ISSUE WAS UPHELD IN
THIS CASE, AN APPEAL TO THIS COURT FROM THAT JUDGMENT LIES ONLY IF THE
STATUTE WAS A "STATUTE OF ANY STATE" WITHIN THE MEANING OF ^ 1257(2). 
PALMORE INSISTS THAT IT IS, BUT WE CANNOT AGREE. 

THE 1970 AMENDMENT TO ^ 1257 PLAINLY PROVIDED THAT THE DISTRICT OF
COLUMBIA COURT OF APPEALS SHOULD BE TREATED AS THE "HIGHEST COURT OF A
STATE," BUT NOWHERE IN ^ 1257, OR ELSEWHERE, HAS CONGRESS PROVIDED THAT
THE WORDS "STATUTE OF ANY STATE," AS USED IN ^ 1257(2), ARE TO INCLUDE
THE PROVISIONS OF THE DISTRICT OF COLUMBIA CODE.  A REFERENCE TO "STATE
STATUTES" WOULD ORDINARILY NOT INCLUDE PROVISIONS OF THE DISTRICT OF
COLUMBIA CODE, WHICH WAS ENACTED, NOT BY A STATE LEGISLATURE, BUT BY
CONGRESS, AND WHICH APPLIES ONLY WITHIN THE BOUNDARIES OF THE DISTRICT
OF COLUMBIA.  THE DISTRICT OF COLUMBIA IS CONSITUTIONALLY DISTINCT FROM
THE STATES, HEPBURN V. ELLZEY, 2 CRANCH 445 (1805); CF. NATIONAL MUTUAL
INS. CO. V. TIDEWATER TRANSFER CO., 337 U.S. 582 (1949).  NOR DOES IT
FOLLOW FROM THE DECISION TO TREAT THE DISTRICT OF COLUMBIA COURT OF
APPEALS AS A STATE COURT THAT THE DISTRICT CODE WAS TO BE CONSIDERED A
STATE STATUTE FOR THE PURPOSES OF ^ 1257.  WE ARE ENTITLED TO ASSUME
THAT IN AMENDING ^ 1257, CONGRESS LEGISLATED WITH CARE, AND THAT HAD
CONGRESS INTENDED TO EQUATE THE DISTRICT CODE AND STATE STATUTES FOR
THE PURPOSES OF ^ 1257, IT WOULD HAVE SAID SO EXPRESSLY, AND NOT LEFT
THE MATTER TO MERE IMPLICATION.  /5/ 

JURISDICTIONAL STATUTES ARE TO BE CONSTRUED "WITH PRECISION AND WITH
FIDELITY TO THE TERMS BY WHICH CONGRESS HAS EXPRESSED ITS WISHES,"
CHENG FAN KWOK V. INS, 392 U.S. 206, 212 (1968); AND WE ARE
PARTICULARLY PRONE TO ACCORD "STRICT CONSTRUCTION OF STATUTES
AUTHORIZING APPEALS" TO THIS COURT. 

[[HC396'(ORIGINAL DOCUMENT PAGE 396)'  FORNARIS V. RIDGE TOOL CO.,
400 U.S. 41, 42 N. 1 (1970).  WE WILL NOT, THEREFORE, HOLD THAT
CONGRESS INTENDED TO TREAT THE DISTRICT OF COLUMBIA CODE AS A STATE
STATUTE FOR THE PURPOSES OF ^ 1257(2).  CF. FARNSWORTH V. MONTANA, 129
U.S. 104, 112 - 114 (1889). 

PALMORE RELIES ON BALZAC V. PORTO RICO, 258 U.S. 298 (1922), WHERE
AN ENACTMENT OF THE TERRITORIAL LEGISLATURE OF PUERTO RICO WAS HELD TO
BE A STATUTE OF A STATE WITHIN THE MEANING OF THE THEN-APPLICABLE
STATUTORY PROVISIONS GOVERNING APPEALS TO THIS COURT.  THAT RESULT HAS
BEEN CODIFIED IN 28 U.S.C. ^ 1258; BUT, EVEN SO, THE BALZAC RATIONALE
WAS SEVERELY UNDERMINED IN FORNARIS, WHERE WE HELD THAT A STATUTE
PASSED BY THE LEGISLATURE OF PUERTO RICO IS NOT "A STATE STATUTE"
WITHIN THE MEANING OF 28 U.S.C. ^ 1254(2), AND THAT IT SHOULD NOT BE
TREATED AS SUCH IN THE ABSENCE OF MORE DEFINITIVE GUIDANCE FROM
CONGRESS. 

WE CONCLUDE THAT WE DO NOT HAVE JURIDICTION OF THE APPEAL FILED IN
THE CASE.  PALMORE PRESENTS FEDERAL CONSTITUTIONAL ISSUES, HOWEVER,
THAT ARE REVIEWABLE BY WRIT OF CERTIORARI UNDER ^ 1257(3); AND TREATING
THE JURISDICTIONAL STATEMENT AS A PETITION FOR WRIT OF CERTIORARI, CF.
28 U.S.C. ^ 2103, WE GRANT THE PETITION LIMITED TO THE QUESTION OF
WHETHER PALMORE WAS ENTITLED TO BE TRIED BY A COURT ORDAINED AND
ESTABLISHED IN ACCORDANCE WITH ART. III, ^ 1, OF THE CONSTITUTION. 
/6/ 

[[HC397'(ORIGINAL DOCUMENT PAGE 397)'  IT IS TO THIS ISSUE THAT WE
NOW TURN. 

        III 

ART. I, ^ 8, CL. 17, OF THE CONSTITUTION PROVIDES THAT CONGRESS
SHALL HAVE POWER "(TO EXERCISE EXCLUSIVE LEGISLATION IN ALL CASES
WHATSOEVER, OVER" THE DISTRICT OF COLUMBIA.  THE POWER IS PLENARY.  NOT
ONLY MAY STATUTES OF CONGRESS OF OTHERWISE NATIONWIDE APPLICATION BE
APPLIED TO THE DISTRICT OF COLUMBIA, BUT CONGRESS MAY ALSO EXERCISE ALL
THE POLICE AND REGULATORY POWERS WHICH A STATE LEGISLATURE OR MUNICIPAL
GOVERNMENT WOULD HAVE IN LEGISLATING FOR STATE OR LOCAL PURPOSES. 
CONGRESS "MAY EXERCISE WITHIN THE DISTRICT ALL LEGISLATIVE POWERS THAT
THE LEGISLATURE OF A STATE MIGHT EXERCISE WITHIN THE STATE; AND MAY
VEST AND DISTRIBUTE THE JUDICIAL AUTHORITY IN AND AMONG COURTS AND
MAGISTRATES, AND REGULATE JUDICIAL PROCEEDINGS BEFORE THEM, AS IT MAY
THINK FIT, SO LONG AS IT DOES NOT CONTRAVENE ANY PROVISION OF THE
CONSTITUTION OF THE UNITED STATES."  CAPITAL TRACTION CO. V. HOF, 174
U.S. 1, 5 (1899).  THIS HAS BEEN THE CHARACTERISTIC VIEW IN THIS COURT
OF NGRESSIONAL POWERS WITH RESPECT TO THE DISTRICT.  /7/  IT IS
APPARENT THAT THE POWER OF CONGRESS UNDER CLAUSE 17 PERMITS IT TO
LEGISLATE FOR THE DISTRICT IN A MANNER WITH RESPECT TO SUBJECTS THAT
WOULD EXCEED ITS POWERS, OR AT LEAST WOULD BE VERY UNUSUAL, IN THE
CONTEXT OF NATIONAL LEGISLATION ENACTED UNDER OTHER POWERS DELEGATED TO
IT UNDER AR. I, ^ 8. 

[[HC398'(ORIGINAL DOCUMENT PAGE 398)'  SEE GIBBONS V. DISTRICT OF
COLUMBIA, 116 U.S. 404, 408 (1886). 

PURSUANT TO ITS CLAUSE 17 AUTHORITY, CONGRESS HAS FROM TIME TO TIME
ENACTED LAWS THAT COMPOSE THE DISTRICT OF COLUMBIA CODE.  THE 1970
REORGANIZATION ACT AMENDED THE CODE BY CREATING THE SUPERIOR COURT OF
THE DISTRICT OF COLUMBIA AND THE DISTRICT OF COLUMBIA COURT OF APPEALS,
THE COURTS BEING EXPRESSLY "ESTABLISHED PURSUANT TO ARTICLE I OF THE
CONSTITUTION."  D. C. CODE ANN. ^ 11 - 101(2) (SUPP. V, 1972).  SEE N.
2, SUPRA.  THE SUPERIOR COURT, AMONG OTHER THINGS, WAS VESTED WITH
JURISDICTION TO HEAR CRIMINAL CASES INVOLVING ALLEGED VIOLATIONS OF THE
CRIMINAL LAWS APPLICABLE ONLY TO THE DISTRICT OF COLUMBIA, ID., ^ 11 -
923; THE DISTRICT OF COLUMBIA COURT OF APPEALS, WITH JURISDICTION TO
HEAR APPEALS IN SUCH CASES.  ID., ^ 11 - 721.  AT THE SAME TIME,
CONGRESS EXERCISED ITS POWERS UNDER ART. I, ^ 8, CL. 9, AND ART. III TO
REDEFINE THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA AND THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CURCUIT.  ID., ^^ 11 - 301, 11 - 501, AND 11 -
502.  AS THE COMMITTEE ON THE DISTRICT OF COLUMBIA SAID, H. R. REP. NO.
91 - 907, P. 44: 

     "THIS TITLE MAKES CLEAR (SECTION 11 - 101) THAT THE DISTRICT
OF

  COLUMBIA COURTS (THE DISTRICT OF COLUMBIA COURT OF APPEALS, AND

  THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA) ARE ARTICLE I

  COURTS, CREATED PURSUANT TO ARTICLE I, SECTION 8, CLAUSE 17 OF

  THE UNITED STATES CONSTITUTION, AND NOT ARTICLE III COURTS.  THE

  AUTHORITY UNDER WHICH THE LOCAL COURTS ARE ESTABLISHED HAS NOT

  BEEN STATUTORILY PROVIDED IN PRIOR LAW; THE SUPREME COURT OF THE

  UNITED STATES HAS NOT DECLARED THE LOCAL SYSTEM TO BE EITHER

  ARTICLE I OR ARTICLE III COURTS, DECISIONS HAVING INDICATED THAT

THE DISTRICT OF COLUMBIA COURTS ARE, IN THIS RESPECT, BOTH FISH

  AND FOWL. 

[[HC399'(ORIGINAL DOCUMENT PAGE 399)'

  THIS EXPRESSION OF THE INTENT OF THE CONGRESS CLARIFIES THE LOCAL
COURTS." 

IT WAS UNDER THE JUDICIAL POWER CONFERRED ON THE SUPERIOR COURT BY
THE 1970 REORGANIZATION ACT THAT PALMORE WAS CONVICTED OF VIOLATION OF
^ 22 - 3204 OF THE DISTRICT OF COLUMBIA CODE (1967).  THE CONVICTION
WAS CLEARLY WITHIN THE AUTHORITY GRANTED CONGRESS BY ART. I, ^ 8, CL.
17, UNLESS, AS PALMORE CONTENDS, ART. III OF THE CONSTITUTION REQUIRES
THAT PROSECUTIONS FOR DISTRICT OF COLUMBIA FELONIES MUST BE PRESIDED
OVER BY A JUDGE HAVING THE TENURE AND SALARY PROTECTIONS PROVIDED BY
ART. III.  /8/  PALMORE'S ARGUMENT IS STRAIGHTFORWARD:  ART. III VESTS
THE "JUDICIAL POWER" OF THE UNITED STATES IN COURTS WITH JUDGES HOLDING
OFFICE DURING GOOD BEHAVIOR AND WHOSE SALARY CANNOT BE DIMINISHED; THE
"JUDICIAL POWER" THAT THESE COURTS ARE TO EXERCISE "SHALL EXTEND TO ALL
CASES, IN LAW AND EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF
THE UNITED STATES, AND TREATIES MADE, OR WHICH SHALL BE MADE, UNDER
THEIR AUTHORITY . . ."; THE DISTRICT OF COLUMBIA CODE, HAVING BEEN
ENACTED BY CONGRESS, IS A LAW OF THE UNITED STATES; THIS PROSECUTION
FOR VIOLATION OF ^ 22 - 3204 OF THE CODE IS THEREFORE A CASE ARISING
UNDER THE LAWS OF THE UNITED STATES, INVOLVES AN EXERCISE OF THE
"JUDICIAL POWER" OF THE UNITED STATES, AND MUST THEREFORE BE TRIED BY
AN ART. III JUDGE. 

[[HC400'(ORIGINAL DOCUMENT PAGE 400)' 

THIS POSITION ULTIMATELY RESTS ON THE PROPOSITION THAT AN ART. III
JUDGE MUST PRESIDE OVER EVERY PROCEEDING IN WHICH A CHARGE, CLAIM, OR
DEFENSE IS BASED ON AN ACT OF CONGRESS OR A LAW MADE UNDER ITS
AUTHORITY.  AT THE VERY LEAST, IT ASSERTS THAT CRIMINAL OFFENSES UNDER
THE LAWS PASSED BY CONGRESS MAY NOT BE PROSECUTED EXCEPT IN COURTS
ESTABLISHED PURSUANT TO ART. III.  IN OUR VIEW, HOWEVER, THERE IS NO
SUPPORT FOR THIS VIEW IN EITHER CONSTITUTIONAL TEXT OR IN
CONSTITUTIONAL HISTORY AND PRACTICE. 

ARTICLE III DESCRIBES THE JUDICIAL POWER AS EXTENDING TO ALL CASES,
AMONG OTHERS, ARISING UNDER THE LAWS OF THE UNITED STATES; BUT, ASIDE
FROM THIS COURT, THE POWER IS VESTED 'IN SUCH INFERIOR COURTS AS THE
CONGRESS MAY FROM TIME TO TIME ORDAIN AND ESTABLISH."  THE DECISION
WITH RESPECT TO INFERIOR FEDERAL COURTS, AS WELL AS THE TASK OF
DEFINING THEIR JURISDICTION, WAS LEFT TO THE DISCRETION OF CONGRESS. 
[[HC401'(ORIGINAL DOCUMENT PAGE 401)' 

THAT BODY WAS NOT CONSTITUTIONALLY REQUIRED TO CREATE INFERIOR ART.
III COURTS TO HEAR AND DECIDE CASES WITHIN THE JUDICIAL POWER OF THE
UNITED STATES, INCLUDING THOSE CRIMINAL CASES ARISING UNDER THE LAWS OF
THE UNITED STATES.  NOR, IF INFERIOR FEDERAL COURTS WERE CREATED, WAS
IT REQUIRED TO INVEST THEM WITH ALL THE JURISDICTION IT WAS AUTHORIZED
TO BESTOW UNDER ART. III.  "(THE JUDICIAL POWER OF THE UNITED STATES .
. . IS (EXCEPT IN ENUMERATED INSTANCES, APPLICABLE EXCLUSIVELY TO THIS
COURT) DEPENDENT FOR ITS DISTRIBUTION AND ORGANIZATION, AND FOR THE
MODES OF ITS EXERCISE, ENTIRELY UPON THE ACTION OF CONGRESS, WHO
POSSESS THE SOLE POWER OF CREATING THE TRIBUNALS (INFERIOR TO THE
SUPREME COURT).  . . AND OF INVESTING THEM WITH JURISDICTION EITHER
LIMITED, CONCURRENT, OR EXCLUSIVE, AND OF WITHHOLDING JURISDICTION FROM
THEM IN THE EXACT DEGREES AND CHARACTER WHICH TO CONGRESS MAY SEEM
PROPER FOR THE PUBLIC GOOD."  CARY V. CURTIS, 3 HOSW.  236, 245
(1845).  /9/  CONGRESS PLAINLY UNDERSTOOD THIS, FOR UNTIL 1875 CONGRESS
REFRAINED FROM PROVIDING THE LOWER FEDERAL COURTS WITH GENERAL FEDERAL
QUESTION JURISDICTION.  UNTIL THAT TIME, THE STATE COURTS PROVIDED THE
ONLY FORUM FOR VINDICATING MANY IMPORTANT FEDERAL CLAIMS.  EVEN THEN,
WITH EXCEPTIONS, THE STATE COURTS REMAINED THE SOLE FORUM FOR THE TRIAL
OF FEDERAL CASES NOT INVOLVING THE REQUIRED JURISDICTIONAL AMOUNT, AND
FOR THE MOST PART RETAINED CONCURRENT JURISDICTION OF FEDERAL CLAIMS
PROPERLY WITHIN THE JURISDICTION OF THE LOWER FEDERAL COURTS. 

[[HC402'(ORIGINAL DOCUMENT PAGE 402)' 

IT WAS NEITHER THE LEGISLATIVE NOR JUDICIAL VIEW, THEREFORE, THAT
TRIAL AND DECISION OF ALL FEDERAL QUESTIONS WERE RESERVED FOR ART. III
JUDGES.  NOR, MORE PARTICULARLY, HAS THE ENFORCEMENT OF FEDERAL
CRIMINAL LAW BEEN DEEMED THE EXCLUSIVE PROVINCE OF FEDERAL ART. III
COURTS.  VERY EARLY IN OUR HISTORY, CONGRESS LEFT THE ENFORCEMENT OF
SELECTED FEDERAL CRIMINAL LAWS TO STATE COURTS AND TO STATE COURT
JUDGES WHO DID NOT ENJOY THE PROTECTIONS PRESCRIBED FOR FEDERAL JUDGES
IN ART. III.  SEE WARREN, FEDERAL CRIMINAL LAWS AND THE STATE COURTS,
38 HARV. L. REV. 545, 551 - 553, 570 - 572 (1925); F. FRANKFURTER & J.
LANDIS, THE BUSINESS OF THE SUPREME COURT 293 (1927); NOTE, UTILIZATION
OF STATE COURTS TO ENFORCE FEDERAL PENAL AND CRIMINAL STATUTES:
DEVELOPMENT IN JUDICIAL FEDERALISM, 60 HARV. L. REV. 966 (1947).  MORE
RECENTLY, THIS COURT UNANIMOUSLY HELD THAT CONGRESS COULD
CONSTITUTIONALLY REQUIRE STATE COURTS TO HEAR AND DECIDE EMERGENCY
PRICE CONTROL ACT CASES INVOLVING THE ENFORCEMENT OF FEDERAL PENAL
LAWS; "THAT RHODE ISLAND HAS AN ESTABLISHED POLICY AGAINST ENFORCEMENT
BY ITS COURTS OF STATUTES OF OTHER STATES AND THE UNITED STATES WHICH
IT DEEMS PENAL, CANNOT BE ACCEPTED AS A 'VALID EXCUSE.'"  TESTA V.
KATT, 330 U.S. 386, 392 (1947).  ALTHOUGH RECOGNIZING THE CONTRARY
SENTIMENTS EXPRESSED IN PRIGG V. PENNSYLVANIA, 16 PET. 539, 615 - 616
(1842), AND OTHER CASES, THE SENSE OF THE TESTA OPINION WAS THAT IT
MERELY REFLECTED LONGSTANDING CONSTITUTIONAL DECISION AND POLICY
REPRESENTED BY SUCH CASES AS CLAFLIN V. HOUSEMAN, 93 U.S. 130 (1876),
AND MONDOU V. NEW YORK, N. H. & H. R. CO., 223 U.S. 1 (1912). 

IT IS ALSO TRUE THAT THROUGHOUT OUR HISTORY, CONGRESS HAS EXERCISED
ITS POWER UNDER ART. IV TO "MAKE ALL NEEDFUL RULES AND REGULATIONS
RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED
STATES" BY CREATING TERRITORIAL COURTS AND MANNING THEM WITH JUDGES
APPOINTED FOR A TERM OF YEARS. 

[[HC403'(ORIGINAL DOCUMENT PAGE 403)'  THESE COURTS HAVE NOT BEEN
DEEMED SUBJECT TO THE STRICTURES OF ART. III, EVEN THOUGH THEY
CHARACTERISTICALLY ENFORCE NOT ONLY THE CIVIL AND CRIMINAL LAWS OF
CONGRESS APPLICABLE THROUGHOUT THE UNITED STATES, BUT ALSO THE LAWS
APPLICABLE ONLY WITHIN THE BOUNDARIES OF THE PARTICULAR TERRITORY. 
SPEAKING FOR A UNANIMOUS COURT IN AMERICAN INS. CO. V. CANTER, I PET.
511 (1828), MR. CHIEF JUSTICE MARSHALL HELD THAT THE TERRITORIAL COURTS
OF FLORIDA, ALTHOUGH NOT ART. III COURTS, COULD HEAR AND DETERMINE
CASES GOVERNED BY THE ADMIRALTY AND MARITIME LAW THAT ORDINARILY COULD
BE HEARD ONLY BY ART. III JUDGES.  "(THE SAME LIMITATION DOES NOT
EXTEND TO THE TERRITORIES.  IN LEGISLATING FOR THEM, CONGRESS EXERCISES
THE COMBINED POWERS OF THE GENERAL, AND OF A STATE GOVERNMENT."  ID.,
AT 546.  THIS HAS BEEN THE CONSISTENT VIEW OF THIS COURT.  /10/
TERRITORIAL COURTS, THEREFORE, HAVE REGULARLY TRIED CRIMINAL CASES
ARISING UNDER THE GENERAL LAWS OF CONGRESS, /11/  AS WELL AS THOSE
BROUGHT UNDER TERRITORIAL LAWS.  /12/ 

THERE IS ANOTHER CONTEXT IN WI^CH CRIMINAL CASES ARISING UNDER
FEDERAL STATUTES ARE TIRED, AND DEFENDANTS CONVICTED, IN NON-ART.  III
COURTS. 

[[HC404'(ORIGINAL DOCUMENT PAGE 404)'  UNDER ITS ART. I, ^ 8, CL.
14, POWER "(TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND
AND NAVAL FORCES," CONGRESS HAS DECLARED CERTAIN BEHAVIOR BY MEMEBERS
OF THE ARMED FORCES TO BE CRIMINAL AND PROVIDED FOR THE TRIAL OF SUCH
CASES BY COURT-MARTIAL PROCEEDINGS IN THE MILITARY MODE, NOT BY COURTS
ORDAINED AND ESTABLISHED UNDER ART. III.  WITHIN THEIR PROPER SPHERE,
COURTS-MARTIAL ARE CONSTITUTIONAL INSTRUMENTS TO CARRY OUT
CONGRESSIONAL AND EXECUTIVE WILL.  DYNES V. HOOVER, 20 HOW.  65, 79, 82
(1857).  THE "EXIGENCIES OF MILITARY DISCIPLINE REQUIRE THE EXISTENCE
OF A SPECIAL SYSTEM OF MILITARY COURTS IN WHICH NOT ALL OF THE SPECIFIC
PROCEDURAL PROTECTIONS DEEMED ESSENTIAL IN ART. III TRIALS NEED APPLY,"
O'CALLAHAN V. PARKER, 395 U.S. 258, 261 (1969); AND "THE CONSTITUTION
DOES NOT PROVIDE LIFE TENURE FOR THOSE PERFORMING JUDICIAL FUNCTIONS IN
MILITARY TRIALS," TOTH V. QUARLES, 350 US.S. 11, 17 (1955). 

"THE SAME CONFLUENCE OF PRACTICAL CONSIDERATIONS THAT DICTATED THE
RESULT IN (AMERICAN INS. CO. V. CANTER, SUPRA), HAS GOVERNED THE
DECISION IN LATER CASES SANCTIONING THE CREATION OF OTHER COURTS WITH
JUDGES OF LIMITED TENURE," GLIDDEN CO. V. ZDANOK, 370 U.S. 530, 547
(1962), SUCH AS THE COURT OF PRIVATE LAND CLAIMS, UNITED STATES V. COE,
155 U.S. 76, 85 - 86 (1894); THE CHOCTAW AND CHICKASAW CITIZENSHIP
COURT, STEPHENS V. CHEROKEE NATION, 174 U.S. 445 (1899); EX PARTE
JOINS, 191 U.S. 93 (1903); WALLACE V. ADAMS, 204 U.S. 415 (1907);
COURTS CREATED IN UNINCORPORATED DISTRICTS OUTSIDE THE MAINLAND, DOWNES
V. BIDWELL, 182 U.S. 244, 266 - 267 (1901); BALZAC V. PORTO RICO, 258
U.S., AT 312 - 313, AND THE CONSULAR COURTS ESTABLISHED BY CONCESSIONS
FROM FOREIGN COUNTRIES, IN RE ROSS, 140 U.S. 453, 464 - 465, 480
(1891). 

        IV 

WHATEVER MAY BE TRUE IN OTHER INSTANCES, HOWEVER, IT IS STRONGLY
ARGUED THAT O'DONOGHUE V. UNITED STATES, 289 U.S. 516 (1933),
CONSTRAINS US TO HOLD THAT ALL OF THE COURTS OF THE DISTRICT OF
COLUMBIA MUST BE DEEMED ART. III COURTS AND THAT THE JUDGES PRESIDING
OVER THEM MUST BE APPOINTED TO SERVE DURING THEIR GOOD BEHAVIOR IN
ACCORDANCE WITH THE REQUIREMENTS OF ART. III. 

[[HC405'(ORIGINAL DOCUMENT PAGE 405)'  O'DONOGHUE INVOLVED THE
QUESTION WHETHER THE JUDGES OF THE DISTRICT OF COLUMBIA'S SUPREME COURT
AND COURT OF APPEALS WERE CONSTITUTIONALLY PROTECTED FROM HAVING THEIR
SALARIES REDUCED BY AN ACT OF CONGRESS.  THIS COURT, OVER THREE
DISSENTS AND CONTRARY TO EXTENSIVE PRIOR DICTA, SEE EX PARTE BAKELITE
CORP., 279 U.S. 438, 450 (1929); BUTTERWORTH V. HOE, 112 U.S. 50
(1884); KELLER V. POTOMAC ELECTRIC POWER CO., 261 U.S. 428 (1923);
FEDERAL RADIO COMM'N V. GENERAL ELECTRIC CO., 281 U.S. 464 (1930), HELD
THAT THE TWO COURTS UNDER CONSIDERATION WERE CONSTITUTIONAL COURTS
EXERCISING THE JUDICIAL POWER OF THE UNITED STATES AND THAT THE JUDGES
IN QUESTION WERE NOT SUBJECT TO THE SALARY REDUCTION LEGISLATION AS
THEY WOULD HAVE BEEN HAD THEY BEEN JUDGES OF LEGISLATIVE COURTS. 

WE CANNOT AGREE THAT O'DONOGHUE GOVERNS THIS CASE.  /13/  THE
DISTRICT OF COLUMBIA COURTS THERE INVOLVED, THE SUPREME COURT AND THE
COURT OF APPEALS, HAD AUTHORITY ONLY IN THE DISTRICT, BUT ALSO OVER ALL
THOSE CONTROVERSIES, CIVIL AND CRIMINAL, ARISING UNDER THE CONSTITUTION
AND THE STATUTES OF THE UNITED STATES AND HAVING NATIONWIDE
APPLICATION. 

[[HC406'(ORIGINAL DOCUMENT PAGE 406)'  THESE COURTS, AS THIS COURT
NOTED IN ITS OPINION, WERE "OF EQUAL RANK AND POWER WITH THOSE OF OTHER
INFERIOR COURTS OF THE FEDERAL SYSTEM . . ."  O'DONOGHUE, SUPRA, AT
534.  RELYING HEAVILY ON CONGRESSIONAL INTENT, THE COURT CONSIDERED
THAT CONGRESS, BY CONSISTENTLY PROVIDING THE JUDGES OF THESE COURTS
WITH LIFETIME TENURE, HAD INDICATED A "CONGRESSIONAL PRACTICE FROM THE
BEGINNING (WHICH) RECOGNIZED) A COMPLETE PARALLELISM BETWEEN THE COURTS
OF THE DISTRICT (OF COLUMBIA) AND THE DISTRICT AND CIRCUIT COURTS OF
APPEALS OF THE UNITED STATES."  ID., AT 549.  MOREOVER, THESE COURTS,
CONSTITUTED AS THEY WERE, AND BEING CLOSER TO THE LEGISLATIVE
DEPARTMENT, "EXERCISE A MORE EXTENSIVE JURISDICTION IN CASES AFFECTING
THE OPERATIONS OF THE GENERAL GOVERNMENT AND ITS VARIOUS DEPARTMENTS,"
ID., AT 535, AND WERE THE ONLY COURTS WITHIN THE DISTRICT IN WHICH
DISTRICT INHABITANTS COULD EXERCISE THEIR "RIGHT TO HAVE THEIR CASES
ARISING UNDER THE CONSTITUTION HEARD AND DETERMINED BY FEDERAL COURTS
CREATED UNDER, AND VESTED WITH THE JUDICIAL POWER CONFERRED BY, ART.
III."  ID., AT 540. 

THE CASE BEFORE US IS A FAR CRY FROM O'DONOGHUE.  HERE CONGRESS HAS
EXPRESSLY CREATED TWO SYSTEMS OF COURTS IN THE DISTRICT.  ONE OF THEM,
MADE UP OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA AND THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT, ARE CONSTITUTIONAL COURTS MANNED BY ART. III JUDGES
TO WHICH THE CITIZENS OF THE DISTRICT MUST OR MAY RESORT FOR
CONSIDERATION OF THOSE CONSTITUTIONAL AND STATUTORY MATTERS OF GENERAL
CONCERN WHICH SO MOVED THE COURT IN O'DONOGHUE. 

[[HC407'(ORIGINAL DOCUMENT PAGE 407)'  THE OTHER SYSTEM IS MADE UP
OF STRICTLY LOCAL COURTS, THE SUPERIOR COURT AND THE DISTRICT OF
COLUMBIA COURT OF APPEALS.  THESE COURTS WERE EXPRESSLY CREATED
PURSUANT TO THE PLENARY ART. I POWER TO LEGISLATE FOR THE DISTRICT OF
COLUMBIA, D. C. CODE ANN. ^ 11 - 101(2) (SUPP. V, 1972), AND TO
EXERCISE THE "POWERS OF . . . A STATE GOVERNMENT IN ALL CASES WHERE
LEGISLATION IS POSSIBLE."  STOUTENBURGH V. HENNICK, 129 U.S. 141, 147
(1889). 

THE O'DONOGHUE COURT HAD BEFORE IT DISTRICT OF COLUMBIA COURTS IN
WHICH THE CONSIDERATION OF "PURELY LOCAL AFFAIRS (WAS) OBVIOUSLY
SUBORDINATE AND INCIDENTAL."  O'DONOGHUE, SUPRA, AT 539.  HERE, ON THE
OTHER HAND, WE HAVE COURTS THE FOCUS OF WHOSE WORK IS PRIMARILY UPON
CASES ARISING UNDER THE DISTRICT OF COLUMBIA CODE AND TO OTHER MATTERS
OF STRICTLY LOCAL CONCERN.  THEY HANDLE CRIMINAL CASES ONLY UNDER
STATUTES THAT ARE APPLICABLE TO THE DISTRICT OF COLUMBIA ALONE. 
O'DONOGHUE DID NOT CONCERN ITSELF WITH COURTS LIKE THESE, AND IT IS NOT
CONTROLLING HERE. 

       V 

IT IS APPARENT THAT NEITHER THIS COURT NO CONGRESS HAS READ THE
CONSTITUTION AS REQUIRING EVERY FEDERAL QUESTION ARISING UNDER THE
FEDERAL LAW, OR EVEN EVERY CRIMINAL PROSECUTION FOR VIOLATING AN ACT OF
CONGRESS, TO BE TRIED IN AN ART. III COURT BEFORE A JUDGE ENJOYING
LIFETIME TENURE AND PROTECTION AGAINST SALARY REDUCTION.  RATHER, BOTH
CONGRESS AND THIS COURT HAVE RECOGNIZED THAT STATE COURTS ARE
APPROPRIATE FORUMS IN WHICH FEDERAL QUESTIONS AND FEDERAL CRIMES MAY AT
TIMES BE TRIED; AND THAT THE REQUIREMENTS OF ART. III, WHICH ARE
APPLICABLE WHERE LAWS OF NATIONAL APPLICABILITY AND AFFAIRS OF NATIONAL
CONCERN ARE AT STAKE, MUST IN PROPER CIRCUMSTANCES GIVE WAY TO
ACCOMMODATE PLENARY GRANTS OF POWER TO CONGRESS TO LEGISLATE WITH
RESPECT TO SPECIALIZED AREAS HAVING PARTICULARIZED NEEDS AND WARRANTING
DISTINCTIVE TREATMENT. 

[[HC408'(ORIGINAL DOCUMENT PAGE 408)'  HERE, CONGRESS REORGANIZED
THE COURT SYSTEM IN THE DISTRICT OF COLUMBIA AND ESTABLISHED ONE SET OF
COURTS IN THE DISTRICT WITH ART. III CHARACTERISTICS AND DEVOTED TO
MATTERS OF NATIONAL CONCERN.  IT ALSO CREATED A WHOLLY SEPARATE COURT
SYSTEM DESIGNED PRIMARILY TO CONCERN ITSELF WITH LOCAL LAW AND TO SERVE
AS A LOCAL COURT SYSTEM FOR A LARGE METROPOLITAN AREA. 

FROM ITS OWN STUDIES, CONGRESS HAD CONCLUDED THAT THERE WAS A CRISIS
IN THE JUDICIAL SYSTEM OF THE DISTRICT OF COLUMBIA, THAT CASE LOADS HAD
BECOME UNMANAGEABLE, AND THAT NEITHER THOSE MATTERS OF NATIONAL CONCERN
NOR THOSE OF STRICTLY LOCAL COGNIZANCE WERE BEING PROMPTLY TRIED AND
DISPOSED OF BY THE EXISTING COURT SYSTEM.  SEE, E. G., 115 CONG. REC.
25538 (1969); 116 CONG. REC. 8091 - 8092 (1970).  /14/  THE REMEDY IN
PART, WAS TO RELIEVE THE REGULAR ART. III COURTS, THAT IS, THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AND THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, FROM THE
SMOTHERING RESPONSIBILITY FOR THE GREAT MASS OF LITIGATION, CIVIL AND
CRIMINAL, THAT INEVITABLY CHARACTERIZES THE COURT SYSTEM IN A MAJOR
CITY AND TO CONFINE THE WORK OF THOSE COURTS TO THAT WHICH, FOR THE
MOST PART, THEY WERE DESIGNED TO DO, NAMELY, TO TRY CASES ARISING UNDER
THE CONSTITUTION AND THE NATIONALLY APPLICABLE LAWS OF CONGRESS. 

[[HC409'(ORIGINAL DOCUMENT PAGE 409)'  THE OTHER PART OF THE REMEDY,
EQUALLY ESSENTIAL, WAS TO ESTABLISH AN ENTIRELY NEW COURT SYSTEM WITH
FUNCTIONS ESSENTIALLY SIMILAR TO THOSE OF THE LOCAL COURTS FOR TRYING
AND DECIDING THOSE DISTINCTIVELY LOCAL CRIMINAL LAWS HAVING LITTLE IF
ANY, IMPACT BEYOND THE LOCAL JURISDICTION.  S. REP. NO. 91 - 405, PP. 1
- 3, 5, 18; H. R. REP. NO. 91 - 907, PP. 23 - 24, 33. 

FURTHERMORE, CONGRESS, AFTER CAREFUL CONSIDERATION, DETERMINED THAT
IT PREFERRED, AND HAD THE POWER TO UTILIZE, A LOCAL COURT SYSTEM
STAFFED BY JUDGES WITHOUT LIFETIME TENURE.  S. REP. NO. 91 - 405,
SUPRA, AT 17 - 18; H. R. REP. NO. 91 - 907, SUPRA, AT 44.  CONGRESS
MADE A DELIBERATE CHOICE TO CREATE JUDGESHIPS WITH TERMS OF 15 YEARS,
D. C. CODE ANN. ^ 11 - 1502 (SUPP. V, 1972), AND TO SUBJECT JUDGES IN
THOSE POSITIONS TO REMOVAL OR SUSPENSION BY A JUDICIAL COMMISSION UNDER
CERTAIN ESTABLISHED CIRCUMSTANCES.  ID., ^^ 11 - 1502, 11 - 1521 ET
SEQ. IT WAS THOUGHT THAT SUCH A SYSTEM WOULD BE MORE WORKABLE AND
EFFICIENT IN ADMINISTERING AND DISCHARGING THE WORK OF A MULTIFACETED
METROPOLITAN COURT SYSTEM.  SEE S. REP. NO. 91 - 405, SUPRA, AT 8 - 11;
H. R. REP. NO. 91 - 907, SUPRA, AT 35 - 39.     IN PROVIDING FOR FIXED
TERMS OF OFFICE, CONGRESS WAS COGNIZANT OF THE FACT THAT "VIRTUALLY NO
STATE HAS PROVIDED" FOR TENURE DURING GOOD BEHAVIOR, S. REP. NO. 91 -
405, SUPRA, AT 8, SEE H. R. REP. NO. 91 - 907, SUPRA, AT 38, THE
DISTRICT OF COLUMBIA COURT OF APPEALS NOTING THAT 46 OF THE 50 STATES
HAVE NOT PROVIDED LIFE TENURE FOR TRIAL JUDGES WHO HEAR FELONY CASES,
290 A.2D, AT 578 N. 12; AND THE PROVISIONS OF THE ACT, WITH RESPECT TO
COURT ADMINISTRATION AND TO JUDICIAL REMOVAL AND SUSPENSION, WERE
CONSIDERED BY SOME AS A MODEL FOR THE STATES. 

[[HC410'(ORIGINAL DOCUMENT PAGE 410)'  115 CONG. REC. 25538 (1969). 
SEE HEARINGS ON H. R. 13689 AND 12854 BEFORE SUBCOMMITTEE NO. 1 OF THE
HOUSE COMMITTEE ON THE DISTRICT OF COLUMBIA, 91ST CONG., 1ST SESS., PT.
1, PP. 69, 71 (1969). 

WE DO NOT DISCOUNT THE IMPORTANCE ATTACHED TO THE TENURE AND SALARY
PROVISIONS OF ART. III, BUT WE CONCLUDE THAT CONGRESS WAS NOT REQUIRED
TO PROVIDE AN ART. III COURT FOR THE TRIAL OF CRIMINAL CASES ARISING
UNDER ITS LAWS APPLICABLE ONLY WITHIN THE DISTRICT OF COLUMBIA. 
PALMORE'S TRIAL IN THE SUPERIOR COURT WAS AUTHORIZED BY CONGRESS' ART.
I POWER TO LEGISLATE FOR THE DISTRICT IN ALL CASES WHATSOEVER.  PALMORE
WAS NO MORE DISADVANTAGED AND NO MORE ENTITLED TO AN ART. III JUDGE
THAN ANY OTHER CITIZEN OF ANY OF THE 50 STATES WHO IS TRIED FOR A
STRICTLY LOCAL CRIME.  NOR DID HIS TRIAL BY A NONTENURED JUDGE DEPRIVE
HIM OF DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT ANY MORE THAN THE
TRIAL OF THE CITIZENS OF THE VARIOUS STATES FOR LOCAL CRIMES BY JUDGES
WITHOUT PROTECTION AS TO TENURE DEPRIVES THEM OF DUE PROCESS OF LAW
UNDER THE FOURTEENTH AMENDMENT. 

THE JUDGMENT OF THE DISTRICT OF COLUMBIA COURT OF APPEALS IS
AFFIRMED. 

              SO ORDERED. 

/1/  THE SECTION PROVIDED: 

"NO PERSON SHALL WITHIN THE DISTRICT OF COLUMBIA CARRY EITHER OPENLY
OR CONCEALED ON OR ABOUT HIS PERSON, EXCEPT IN HIS DWELLING HOUSE OR
PLACE OF BUSINESS OR ON OTHER LAND POSSESSED BY HIM, A PISTOL, WITHOUT
A LICENSE THEREFOR ISSUED AS HEREINAFTER PROVIDED, OR ANY DEADLY OR
DANGEROUS WEAPON CAPABLE OF BEING SO CONCEALED.  WHOEVER VIOLATES THIS
VIOLATION OCCURS AFTER HE HAS BEEN CONVICTED IN THE DISTRICT OF
COLUMBIA OF A VIOLATION OF THIS SECTION OR OF A FELONY, EITHER IN THE
DISTRICT OF COLUMBIA OR IN ANOTHER JURISDICTION, IN WHICH CASE HE SHALL
BE SENTENCED TO IMPRISONMENT FOR NOT MORE THAN TEN YEARS." 

/2/  BEFORE PASSAGE OF THE DISTRICT OF COLUMBIA COURT REFORM AND
CRIMINAL PROCEDURE ACT OF 1970, 84 STAT. 473 (REORGANIZATION ACT), THE
LOCAL COURT SYSTEM CONSISTED OF ONE APPELLATE COURT AND THREE TRIAL
COURTS, TWO OF WHICH, THE JUVENILE COURT AND THE TAX COURT, WERE COURTS
OF SPECIAL JURISDICTION.  THE THIRD TRIAL COURT, THE DISTRICT OF
COLUMBIA COURT OF GENERAL SESSIONS, WAS ONE OF QUITE LIMITED
JURISDICTION, ITS CRIMINAL JURISDICTION CONSISTING SOLELY OF THAT
EXERCISED CONCURRENTLY WITH THE UNITED STATES DISTRICT COURT OVER
MISDEMEANORS AND PETTY OFFENSES, D. C. CODE ANN. ^ 11 - 963 (1967). 
THE COURT'S CIVIL JURISDICTION WAS RESTRICTED TO CASES WHERE THE AMOUNT
IN CONTROVERSY DID NOT EXCEED $10,000, AND IT HAD JURISDICTION OVER
CASES INVOLVING TITLE TO REAL PROPERTY ONLY AS PART OF A DIVORCE
ACTION.  ID., ^^ 11 - 961 AND 11 - 1141.  THE JUDGMENTS OF THE
APPELLATE COURT, THE DISTRICT OF COLUMBIA COURT OF APPEALS, WERE
SUBJECT TO REVIEW BY THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.  ID., ^ 11 - 321. 

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT HAD CONCURRENT
JURISDICTION WITH THE COURT OF GENERAL SESSIONS OVER MOST OF THE
CRIMINAL AND CIVIL MATTERS HANDLED BY THAT COURT, ID., ^^ 11 - 521, 11
522, AND 11 - 523, AND HAD EXCLUSIVE JURISDICTION OVER FELONY
OFFENSES, EVEN THOUGH COMMITTED IN VIOLATION OF LOCALLY APPLICABLE
LAWS, ID., ^ 11 - 521.  THUS, THE DISTRICT COURT WAS FILLING THE ROLE
OF BOTH A LOCAL AND FEDERAL COURT. 

SEEKING TO IMPROVE THE PERFORMANCE OF THE COURT SYSTEM, CONGRESS, IN
TITLE I OF THE REORGANIZATION ACT, INVESTED THE LOCAL COURTS WITH
JURISDICTION EQUIVALENT TO THAT EXERCISED BY STATE COURTS.  S. REP. NO.
91 - 405, PP. 2 - 3; H. R. REP. NO. 91 - 907, PP. 23 - 24.  THE THREE
FORMER TRIAL COURTS WERE COMBINED INTO THE NEW SUPERIOR COURT OF THE
DISTRICT OF COLUMBIA, D. C. CODE ANN. ^ 11 - 901 (SUPP. V, 1972), WHICH
WAS VESTED, WITH A MINOR EXCEPTION, ID., ^ 11 - 502 (3), WITH EXCLUSIVE
JURISDICTION OVER ALL CRIMINAL CASES, INCLUDING FELONIES, BROUGHT UNDER
LAWS APPLICABLE EXCLUSIVELY TO THE DISTRICT, ID., ^ 11 - 923(B).  ITS
CIVIL JURISDICTION REACHED ALL CIVIL ACTIONS AND ANY OTHER MATTER AT
LAW OR IN EQUITY, BROUGHT IN THE DISTRICT OF COLUMBIA, EXCEPT THOSE IN
WHICH EXCLUSIVE JURISDICTION WAS VESTED IN THE UNITED STATES DISTRICT
COURT.  ID., ^ 11 - 921.  THE LOCAL APPEALS COURT, THE DISTRICT OF
COLUMBIA COURT OF APPEALS, WOULD UTLIMATELY NOT BE SUBJECT TO REVIEW BY
THE UNITED STATES COURT OF APPEALS, ID., ^ 11 - 301, AND WAS DECLARED
TO BE THE "HIGHEST COURT OF THE DISTRICT OF COLUMBIA" FOR PURPOSES OF
FURTHER REVIEW BY THIS COURT.  ID., ^ 11 - 102. 

IN ADDITION TO THE SHIFT IN JURISDICTION, THE NUMBER OF LOCAL JUDGES
WAS INCREASED, THEIR TENURE WAS LENGTHENED FROM 10 TO 15 YEARS, AND
THEIR SALARIES WERE INCREASED AND FIXED AT A PERCENTAGE OF THAT OF
JUDGES OF THE UNITED STATES COURTS.  ID., ^^ 11- 702, 11 - 703, 11 -
903, 11 - 904, AND 11 - 1502; D. C. CODE ANN. ^^ 11 - 702, 11 - 902, 11
- 1502, 47 - 2402 (1967).  THE REORGANIZATION ACT ESTABLISHED A
COMMISSION ON JUDICIAL DISABILITITES AND TENURE TO DEAL WITH
SUSPENSION, RETIREMENT, OR REMOVAL OF LOCAL JUDGES, D. C. CODE ANN. ^
11 - 1521 ET SEQ. (SUPP. V, 1972).  IT ALSO PROVIDED FOR IMPROVED
ADMINISTRATION OF THE LOCAL COURTS, ID., ^ 11 - 1701 ET SEQ., INCLUDING
AUTHORIZATION FOR AN EXECUTIVE OFFICER RESPONSIBLE FOR THE
ADMINISTRATION OF THE LOCAL COURT SYSTEM.  ID., ^ 11 - 1703. 

/3/  THE 15-YEAR TERMS IS SUBJECT TO THE PROVISION FOR MANDATORY
RETIREMENT AT AGE 70.  D. C. CODE ANN. ^ 11 - 1502.  (SUPP. V, 1972). 

/4/  TITLE 28 U.S.C. ^ 1257 PROVIDES: 

"FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT OF A STATE
IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE SUPREME COURT
AS FOLLOWS: 

"(1) BY APPEAL, WHERE IS DRAWN IN QUESTION THE VALIDITY OF A TREATY
OR STATUTE OF THE UNITED STATES AND THE DECISION IS AGAINST ITS
VALIDITY. 

"(2) BY APPEAL, WHERE IS DRAWN IN QUESTION THE VALIDITY OF A STATUTE
OF ANY STATE ON THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION,
TREATIES OR LAWS OF THE UNITED STATES, AND THE DECISION IS IN FAVOR OF
ITS VALIDITY. 

"(3) BY WRIT OF CERTIORARI, WHERE THE VALIDITY OF A TREATY OR
STATUTE OF THE UNITED STATES IS DRAWN IN QUESTION OR WHERE THE VALIDITY
OF A STATE STATUTE IS DRAWN IN QUESTION ON THE GROUND OF ITS BEING
REPUGNANT TO THE CONSTITUTION, TREATIES OR LAWS OF THE UNITED STATES,
OR WHERE ANY TITLE, RIGHT, PRIVILEGE OR IMMUNITY IS SPECIALLY SET UP OR
CLAIMED UNDER THE CONSTITUTION, TREATIES OR STATUTES OF, OR COMMISSION
HELD OR AUTHORITY EXERCISED UNDER, THE UNITED STATES. 

"FOR THE PURPOSES OF THIS SECTION, THE TERM 'HIGHEST COURT OF A
STATE' INCLUDES THE DISTRICT OF COLUMBIA COURT OF APPEALS." 

/5/  AN EXPRESS PROVISION "WOULD HAVE BEEN EASY," FARNSWORTH V.
MONTANA, 129 U.S. 104, 113 (1889), AS DEMONSTRATED BY SPECIFIC
PROVISIONS IN THE U.S.C. CONCERNING THE DISTRICT OF COLUMBIA.  CF. 28
U.S.C. ^ 1363, ADDED TO THE U.S.C. BY ^ 172(C) (1) OF THE
REORGANIZATION ACT, 84 STAT. 590, WHERE FOR PURPOSES OF C. 85 DEALING
WITH THE JURISDICTION OF THE UNITED STATES DISTRICT COURTS, IT IS
PROVIDED THAT "REFERENCES TO LAWS OF THE UNITED STATES OR ACTS OF
CONGRESS DO NOT INCLUDE LAWS APPLICABLE EXCLUSIVELY TO THE DISTRICT OF
COLUMBIA."  SEE ALSO THE TREATMENT OF THE DISTRICT OF COLUMBIA AS A
"STATE" FOR PURPOSES OF DIVERSITY JURISDICTION, 28 U.S.C. ^ 1332(D),
AND THE EQUALLY DISCRETE PROVISION OF 28 U.S.C. ^ 1451, ADDED TO THE
CODE BY ^ 172(D) (1) OF THE REORGANIZATION ACT, 84 STAT. 591, WHICH
PROVIDES THAT FOR PURPOSES OF THE REMOVAL PROVISIONS, THE SUPERIOR
COURT OF THE DISTRICT OF COLUMBIA IS TO BE CONSIDERED A "STATE COURT";
AND THE DISTRICT OF COLUMBIA IS DEEMED TO BE A "STATE." 

/6/  BECAUSE WE POSTPOSED THE QUESTION OF OUR JURISDICTION OVER THIS
APPEAL TO CONSIDERATION OF THE MERITS, RATHER THAN ENTERING AN
UNRESTRICTED NOTATION OF PROBABLE JURISDICTION, THERE IS NO BASIS FOR
INFERRING, FROM OUR FINDING THIS APPEAL IMPROPER, THAT OUR INITIAL
ORDER MUST NEVERTHELESS BE TAKEN AS HAVING GRANTED CERTIORARI ON ANY OF
THE ISSUES PRESENTED.  HENCE, OUR DENIAL OF THE WRIT WITH RESPECT TO
THE FOURTH AMENDMENT CLAIM, RATHER THAN A DISMISSAL, IS PROPER.  CF.
MISHKIN V. NEW YORK, 383 U.S. 502, 512 - 513 (1966). 

/7/  KENDALL V. UNITED STATES, 12 PET. 524, 619 )1838); MATTINGLY V.
DISTRICT OF COLUMBIA, 97 U.S. 687, 690 (1878); GIBBONS V. DISTRICT OF
COLUMBIA, 116 U.S. 404, 407 (1886); SHOEMAKER V. UNITED STATES, 147
U.S. 282, 300 (1893); ATLANTIC CLEANERS & DYERS V. UNITED STATES, 286
U.S. 427, 435 (1932); O'DONOGHUE V. UNITED STATES, 289 U.S. 516, 545
(1933). 

/8/  SECTIONS 1 AND 2 OF ART. III STATE: 

"SECTION 1.  THE JUDICIAL POWER OF THE UNITED STATES, SHALL BE
VESTED IN ONE SUPREME COURT, AND IN SUCH INFERIOR COURTS AS THE
CONGRESS MAY FROM TIME TO TIME ORDAIN AND ESTABLISH.  THE JUDGES, BOTH
OF THE SUPREME AND INFERIOR COURTS, SHALL HOLD THEIR OFFICES DURING
GOOD BEHAVIOUR, AND SHALL, AT STATED TIMES, RECEIVE FOR THEIR SERVICES,
A COMPENSATION, WHICH SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE
IN OFFICE. 

"SECTION 2.  THE JUDICIAL POWER SHALL EXTEND TO ALL CASES, IN LAW
AND EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED
STATES, AND TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR
AUTHORITY; -- TO ALL CASES AFFECTING AMBASSADORS, OTHER PUBLIC
MINISTERS AND CONSULS; -- TO ALL CASES OF ADMIRALTY AND MARITIME
JURISDICTION; -- TO CONTROVERSIES TO WHICH THE UNITED STATES SHALL BE A
PART; -- TO CONTROVERSIES BETWEEN TWO OR MORE STATES; -- BETWEEN A
STATE AND CITIZENS OF ANOTHER STATE; -- BETWEEN CITIZENS OF DIFFERENT
STATES; -- BETWEEN CITIZENS OF THE SAME STATE CLAIMING LANDS UNDER
GRANTS OF DIFFERENT STATES, AND BETWEEN A STATE, OR THE CITIZENS
THEREOF, AND FOREIGN STATES, CITIZENS OR SUBJECTS. 

"IN ALL CASES AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS AND
CONSULS, AND THOSE IN WHICH A STATE SHALL BE PARTY, THE SUPREME COURT
SHALL HAVE ORIGINAL JURISDICTION.  IN ALL THE OTHER CASES BEFORE
MENTIONED, THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION, BOTH AS
TO LAW AND FACT, WITH SUCH EXCEPTIONS, AND UNDER SUCH REGULATIONS AS E
CONGRESS SHALL MAKE. 

"THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE
BY JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID
CRIMES SHALL HAVE BEEN COMMITTED; BUT WHEN NOT COMMITTED WITHIN ANY
STATE, THE TRIAL SHALL BE AT SUCH PLACE OR PLACES AS THE CONGRESS MAY
BY LAW HAVE DIRECTED." 

/9/  THIS WAS THE VIEW OF THE COURT PRIOR TO MARTIN V. HUNTER'S
LESSEE, 1 WHEAT.  304 (1816).  TURNER V. BANK OF NORTH AMERICA, 4
DALL.  8 (1799); UNITED STATES V. HUDSON, 7 CRANCH 32 (1812).  AND THE
CONTRARY STATEMENTS IN HUNTER'S LESSEE, SUPRA, AT 327 - 339, DID NOT
SURVIVE LATER CASES.  SEE FOR EXAMPLE, IN ADDITION TO CARY V. CURTIS, 3
HOW.  236 (1845), QUOTED IN THE TEXT, RHODE ISLAND V. MASSACHUSETTS, 12
PET. 657, 721 - 722 (1838); SHELDON V. SILL, 8 HOW.  441 (1850); CASE
OF THE SEWING MACHINE COMPANIES, 18 WALL.  553, 577 - 578 (1874); KLINE
V. BURKE CONSTRUCTION CO., 260 U.S. 226, 233 - 234 (1922). 

/10/  CLINTON V. ENGLEBRECHT, 13 WALL.  434, 447 (1872); HORNBUCKLE
V. TOOMBS, 18 WALL.  648, 655 - 656 (1874); REYNOLDS V. UNITED STATES,
98 U.S. 145, 154 (1879); THE "CITY OF PANAMA," 101 U.S. 453, 460
(1880); MCALLISTER V. UNITED STATES, 141 U.S. 174, 180 - 184 (1891);
UNITED STATES V. MCMILLAN, 165 U.S. 504, 510 (1897); ROMEU V. TODD, 206
U.S. 358, 369 (1907); GLIDDEN CO. V. ZDANOK, 370 U.S. 530, 544 - 548
(1962). 

/11/ SEE, E. G., BAKER V. UNITED STATES, 1 WIS. 641 (1846); UNITED
STATES V. TOM, 1 ORE.  26 (1853); FRANKLIN V. UNITED STATES, 1 COLO. 35
(1867); PICKETT V. UNITED STATES, 1 IDAHO 523 (1874); UNITED STATES V.
REYNOLDS, 1 UTAH 226 (1875); FISHER V. UNITED STATES, 1 OKLA. 252, 31
P. 195 (1892). 

/12/  SEE, E. G., TERRITORY OF OREGON V. COLEMAN, 1 ORE.  191
(1855); GILE V. PEOPLE, 1 COLO. 60 (1867); PEOPLE V. WATERS 1 IDAHO 560
(1874); PEOPLE V. SHAFER, 1 UTAH 260 (1875); EX PARTE LARKIN, 1 OKLA.
53, 25 P. 745 (1891). 

/13/  WE SHOULD NOTE HERE THAT IN GLIDDEN CO. V. ZDANOK, SUPRA, IT
WAS URGED THAT ART. III FORBADE THE ASSIGNMENT OF A JUDGE OF THE COURT
OF CUSTOMS AND PATENT APPEALS TO TRY A CRIMINAL CASE ARISING UNDER THE
DISTRICT OF COLUMBIA CODE.  THE COURT OF APPEALS RULED THAT EVEN IF THE
JUDGE IN QUESTION WAS NOT AN ART. III JUDGE, ART. I, ^ 8, CL. 17, WAS
SUFFICIENT AUTHORITY FOR HIS ASSIGNMENT TO TRY CASES IN THE DISTRICT. 
THE UNITED STATES THERE URGED THAT THIS WAS TRUE AT LEAST WITH RESPECT
TO LAWS ARISING UNDER THE DISTRICT OF COLUMBIA CODE RATHER THAN UNDER A
LAW OF NATIONAL APPLICATION.  MR. JUSTICE HARLAN, FOR HIMSELF AND
JUSTICES BRENNAN AND STEWART, FOUND IT UNNECESSARY TO REACH THIS
QUESTION, BUT CONSIDERED IT AN OPEN ONE, FOR HE EXPRESSLY RESERVED
"INTIMATING ANY VIEW AS TO THE CORRECTNESS OF THE HOLDING BELOW . . ." 
370 U.S., AT 538.  APPARENTLY, FOR HIM, O'DONOGHUE HAD NOT FORECLOSED
THE ISSUE WITH RESPECT TO THE TRIAL OF THE CRIMINAL CASE UNDER THE
DISTRICT OF COLUMBIA CODE.  MR. JUSTICE CLARK, FOR HIMSELF AND THE
CHIEF JUSTICE, ALSO THOUGHT THE QUESTION OPEN.  SEE ID., AT 589 N. 4. 
/14/  THE SENATE COMMITTEE NOTED THAT NOTWITHSTANDING THE VISITING
JUDGE PROGRAM, "AN UNSURPASSED NUMBER OF DAYS ON THE BENCH PER DISTRICT
COURT JUDGE," AND AS MANY AS 12 OUT OF THE 14 DISTRICT COURT JUDGES
BEING "ASSIGNED FULL TIME TO THE TRIAL OF LOCAL FELONY OFFENSES," THE
BACKLOG OF CRIMINAL CASES IN THE UNITED STATES DISTRICT COURT NUMBERED
1,669, AND THE MEDIAN TIME LAPSE FROM FILING TO FINAL DISPOSITION IN
FELONY TRIALS IN THAT COURT WAS MORE THAN TRIPLE THAT IN OTHER DISTRICT
COURTS.  ADDITIONALLY, THE MEDIAN TIME FOR CIVIL JURY TRIAL IN THE
DISTRICT COURT WAS NEARLY DOUBLE THAT IN OTHER DISTRICT COURTS.  THOUGH
THERE HAD BEEN AN INCREASE IN THE NUMBER OF FELONIES COMMITTED IN THE
DISTRICT OF COLUMBIA, THERE WAS A CONCOMITANT DECREASE IN THE NUMBER OF
FELONIES PROSECUTED.  S. REP. NO. 91 - 405, SUPRA, AT 2 - 3. 

[[DOP 

MR. JUSTICE DOUGLAS, DISSENTING. 

APPELLANT, INDICTED FOR CARRYING A DANGEROUS WEAPON IN VIOLATION OF
D. C. CODE ANN. ^ 22 - 3204, WAS TRIED AND CONVICTED IN THE SUPERIOR
COURT OF THE DISTRICT OF COLUMBIA, AN ART. I COURT CREATED BY CONGRESS
/1/  UNDER THE DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL PROCEDURE
ACT OF 1970, 84 STAT. 473.  HIS TIMELY OBJECTION IS THAT HE WAS TRIED,
CONVICTED, AND SENTENCED BY A COURT NOT ESTABLISHED UNDER ART. III. 

THE JUDGES OF THE COURT THAT CONVICTED HIM

  -- HOLD OFFICE FOR A TERM OF FIFTEEN YEARS, /2/  NOT FOR LIFE AS
DO ART. III JUDGES; --

  UNLIKE ART. III JUDGES, /3/  THEIR SALARIES ARE NOT PROTECTED
FROM DIMINISHMENT DURING THEIR

  CONTINUANCE IN OFFICE; -- UNLIKE ART. III JUDGES, THEY CAN BE
REMOVED FROM OFFICE BY A FIVE

  MEMBER COMMISSION /4/  THROUGH LESS FORMIDABLE MEANS OF PROCEDURE
THAN IMPEACHMENT.  WHILE TWO

  OF THE FIVE MEMBERS MUST BE LAWYERS (ONE A MEMBER OF THE DISTRICT
BAR IN ACTIVE PRACTICE FOR A

  LEAST FIVE OF THE TEN YEARS PRIOR TO HIS APPOINTMENT AND ONE AN
ACTIVE OR RETIRED FEDERAL

 JUDGE SERVING IN THE DISTRICT) THE OTHER THREE MAY BE LAYMENT. 
ONE OF THE THREE MUST BE A

  LAYMAN.  D. C. CODE ANN. ^ 11 - 1522 (SUPP. V, 1972). 

IN OTHER WORDS, THESE SUPERIOR COURT JUDGES ARE NOT MEMBERS OF THE
INDEPENDENT JUDICIARY WHICH HAS BEEN ONE OF OUR PROUDEST BOASTS, BY
REASON OF ART. III.  THE SAFEGUARDS ACCORDED ART. III JUDGES WERE
DESIGNED TO PROTECT LITIGANTS WITH UNPOPULAR OR MINORITY CAUSES OR
LITIGANTS WHO BELONG TO DESPISED OR SUSPECT CLASSES.  THE SAFEGUARDS
SURROUND THE JUDGE AND GIVE HIM A MEASURE OF PROTECTION AGAINST THE
HOSTILE PRESS, THE LEFTIST OR RIGHTIST DEMANDS OF THE PARTY IN POWER,
THE GLOWERING LOOKS OF THOSE IN THE TOP ECHELON IN WHOSE HANDS REST THE
POWER OF REAPPOINTMENT. 

IN THE CONSTITUTIONAL CONVENTION OF 1787 IT WAS PROPOSED THAT JUDGES
"MAY BE REMOVED BY THE EXECUTIVE ON THE APPLICATION BY THE SENATE AND
HOUSE OF REPRESENTATIVES."  THIS PROPOSAL WAS DEFEATED, ONLY
CONNECTICUT VOTING FOR IT.  WILSON APPARENTLY EXPRESSED THE COMMON
SENTIMENT:  "THE JUDGES WOULD BE IN A BAD SITUATION IF MADE TO DEPEND
ON ANY GUST OF FACTION WHICH MIGHT PREVAIL IN THE TWO BRANCHES OF OUR
GOVERNMENT."  /5/ 

WITHOUT THE INDEPENDENCE GRANTED AND ENJOYED BY ART. III JUDGES, A
FEDERAL JUDGE COULD MORE EASILY BECOME THE TOOL OF A RAVENOUS EXECUTIVE
BRANCH.  THIS IDEA WAS REFLECTED IN REPORTS BY CONGRESS IN 1965 AND
1966, /6/  SPONSORING A LAW THAT WOULD GIVE LIEFTIME TENURE TO FEDERAL
JUDGES IN PUERTO RICO.  THE HOUSE REPORT STATED:  /7/ 

".  . . FEDERAL LITIGANTS IN PUERTO RICO SHOULD NOT BE DENIED THE
BENEFIT OF JUDGES MADE INDEPENDENT BY LIFE TENURE FROM THE PRESSURES OF
THOSE WHO MIGHT INFLUENCE HIS CHANCES OF REAPPOINTMENT, WHICH BENEFITS
THE CONSTITUTION GUARANTEES TO THE LITIGANTS IN ALL OTHER FEDERAL
COURTS." 

ART. I, ^ 8, CL. 17, OF THE CONSTITUTION PROVIDES:  "THE CONGRESS
SHALL HAVE POWER . . . TO EXERCISE EXCLUSIVE LEGISLATION . . . OVER
SUCH DISTRICT . . . AS MAY . . . BECOME THE SEAT OF THE GOVERNMENT OF
THE UNITED STATES . . ."  THIS LEGISLATIVE POWER IS PLENARY, GIVING
CONGRESS AUTHORITY TO ESTABLISH THE METHOD BY WHICH THE DISTRICT OF
COLUMBIA WILL BE GOVERNED, AND TO ALTER FROM TIME TO TIME THE FORM OF
THAT GOVERNMENT.  DISTRICT OF COLUMBIA V. THOMPSON CO., 346 U.S. 100,
104 - 110. 

LEGISLATIVE COURTS MAY BE GIVEN EXECUTIVE AND ADMINISTRATIVE DUTIES,
THE EXAMPLES BEING WELL KNOWN.  BUT IF THEY ARE GIVEN "JUDICIAL
POWERS,"  AS ARE THE JUDGES OF THE PRESENT SUPERIOR COURT OF THE
DISTRICT, THOSE TRIALS HAVE GUARANTEES THAT ARE PRESCRIBED BY THE
CONSTITUTION AND BILL OF RIGHTS.  FIRST, AS TO JURY TRIAL, ART. III
SAYS:  "THE TRIAL OF ALL CRIMES . . . SHALL BE BY JURY."  BUT TRIAL BY
JURY IS ALSO GUARANTEED BY THE SIXTH AMENDMENT IN ALL CRIMINAL
PROSECUTIONS.  EVEN MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER, NOT
KNOWN AS LIBERTARIANS, THOUGHT "ALL" MEANT "ALL," NOT PERMITTING THE
EXCLUSIONS OF SO-CALLED "PETTY" OFFENSES.  DISTRICT OF COLUMBIA V.
CLAWANS, 300 U.S. 617, 633.  CONGRESS MAY NOT DEPRIVE AN ACCUSED OF
THAT PROTECTION IN A DISTRICT OF COLUMBIA TRIAL.  DISTRICT OF COLUMBIA
V. COLTS, 282 U.S. 63, 74; CALLAN V. WILSON, 127 U.S. 540. 

THE FIFTH AMENDMENT PROVIDES FOR THE RIGHT TO INDICTMENT; AND
CONGRESS MAY NOT DISPENSE WITH THAT RIGHT FOR A LOCAL CRIMINAL OFFENSE
IN THE DISTRICT OF COLUMBIA.  UNITED STATES V. MORELAND, 258 U.S. 433. 

THE SIXTH AMENDMENT'S GUARANTEE EXTENDS TO SPEEDY AND PUBLIC TRIALS,
THE RIGHT OF CONFRONTATION, COMPULSORY PROCESS AND THE ASSITANCE OF
COUNSEL "(IN ALL CRIMINAL PROSECUTIONS." 

THE FIFTH AMENDMENT GUARANTEES ONE AGAINST DOUBLE JEOPARDY AND GIVES
THE PRIVILEGE AGAINST SELF-INCRIMINATION "IN ANY CRIMINAL CASE,"  AND
GUARANTEES THAT NO ONE SHALL "BE DEPRIVED OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW." 

THE FOURTH AMENDMENT PROTECTS "(THE RIGHT OF THE PEOPLE TO BE SECURE
. . . AGAINST UNREASONABLE SEARCHES AND SEIZURES . . ." 

THE EIGHTH AMENDMENT SAYS THAT "EXCESSIVE BAIL SHALL NOT BE
REQUIRED, NOR EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL
PUNISHMENTS INFLICTED." 

FEW, IF ANY, OF THESE GUARANTEES, I ASSUME, WOULD BE APPLICABLE TO
ART. I TRIBUNALS EXERCISING LEGISLATIVE OR ADMINISTRATIVE FUNCTIONS. 
BUT ARE ANY OF THEM INAPPLICABLE IN CRIMINAL PROSECUTIONS WHERE THE
"JUDICIAL POWER" OF THE UNITED STATES IS EXERCISED? 

I HAVE BEEN UNABLE TO SEE HOW THAT IS POSSIBLE.  YET IF THOSE
ASPECTS OF "JUDICIAL POWER," AS THE TERM IS USED IN ART. III, ARE ALL
APPLICABLE, HOW CAN THE REQUIREMENTS FOR AN INDEPENDENT JUDICIARY BE
MADE AN EXCEPTION?  FOR IT IS AS CLEARLY REQUIRED BY ART. III FOR ANY
EXERCISE OF "JUDICIAL POWER" AS ARE THE OTHER GUARANTEES. 

THE LEGISLATIVE HISTORY OF THE DISTRICT OF COLUMBIA COURT REFORM AND
CRIMINAL PROCEDURE ACT OF 1970 MAKES ABUNDANTLY CLEAR THAT ONE MAIN
PURPOSE WAS THE CREATION OF SOME POLITICAL LEVERAGE OVER SUPERIOR COURT
JUDGES.  AS THE SENATE REPORT STATES: 

     "IN DRAFTING THE TENURE PROVISION OF THE AMENDED BILL, THE

  COMMITTEE WAS CONSCIOUS BOTH OF THE INEXACTNESS OF THE ART OF

  JUDICIAL SELECTION AND OF THE IMPORTANCE OF TENURE IN ATTRACTING

  THE MOST COMPETENT MEN TO THE BENCH.  THE COMMITTEE RECOGNIZED

  THAT THE CONSTITUTIONAL REQUIREMENT OF 'GOOD BEHAVIOR'  TENURE

  HAS PLAYED A SIGNIFICANT ROLE IN THE HISTORIC HIGH QUALITY OF THE

FEDERAL BENCH.  ON THE OTHER HAND, THE COMMITTEE WAS AWARE THAT

  VIRTUALLY NO STATE HAS PROVIDED SUCH TENURE FOR ITS JUDGES, AN

  APPARENT RECOGNITION THAT THE OPPORTUNITY TO REVIEW THE QUALITY

  OF A JUDGE'S PERFORMANCE ALSO HAS ITS OBVIOUS ADVANTAGES.  THE

  COMMITTEE, THEREFORE, SOUGHT A TENURE PROVISION THAT WOULD

  COMBINE THE ATTRACTIVENESS OF THE FEDERAL SYSTEM WITH THE

  OPPORTUNITY FOR SOME REVIEW OF THE JUDGE'S WORK. 

        .          .          .        . 

     "AT PRESENT, THE ONLY MEANS AVAILABLE TO RID THE LOCAL BENCH
OF

  A SICK OR VENAL JUDGE IS THROUGH THE PROCESS OF IMPEACHMENT BY

  THE HOUSE OF REPRESENTATIVES AND TRIAL BY THE U.S. SENATE.  TO

  BELIEVE THAT THE CONGRESS AT THIS TIME IN OUR HISTORY HAS THE

  TIME TO POLICE THE LOCAL JUDICIARY THROUGH THE IMPEACHMENT

  PROCESS IS JUST NOT REALISTIC.  THAT PROCESS HAS NOT EVEN PROVEN

  VIABLE WHEN THE CONDUCT OF FEDERAL, GOOD-BEHAVIOR TENURE JUDGES

  IS DRAWN INTO QUESTION."  S. REP. NO. 91 - 405, PP. 8, 11. 

IN O'DONOGHUE V. UNITED STATES, 289 U.S. 516, THE COURT HELD
UNCONSTITUTIONAL AN ACT OF CONGRESS REDUCING THE SALARIES OF TRIAL AND
APPELLATE JUDGES IN THE DISTRICT OF COLUMBIA.  IT HELD THAT INHERENT IN
THE SEPARATION OF POWERS WAS THE IDEA THAT "THE ACTS OF EACH SHALL
NEVER BE CONTROLLED BY, OR SUBJECTED, DIRECTLY OR INDIRECTLY, TO, THE
COERCIVE INFLUENCE OF EITHER OF THE OTHER DEPARTMENTS."  ID., AT 530. 
SINCE THE DISTRICT WAS FORMED OF PORTIONS OF TWO OF THE ORIGINAL
STATES, THE COURT CONCLUDED IT WAS "NOT REASONABLE TO ASSUME THAT THE
CESSION STRIPPED THEM OF THESE RIGHTS, GUARANTIES AND IMMUNITIES OF THE
CONSTITUTION, AND THAT IT WAS INTENDED THAT AT THE VERY SEAT OF THE
NATIONAL GOVERNMENT THE PEOPLE SHOULD BE LESS FORTIFIED BY THE GUARANTY
OF AN INDEPENDENT JUDICIARY THAN IN OTHER PARTS OF THE UNION."  ID., AT
540.  THE COURT CONCLUDED THAT WHILE CONGRESS COULD NOT CONFER
ADMINISTRATIVE OR LEGISLATIVE FUNCTIONS ON ART. III COURTS, IT COULD
GRANT SUCH FUNCTIONS TO DISTRICT COURTS BY REASON OF ART. I. ID., AT
546.  BUT THAT POWER, IT HELD, MAY NOT BE USED "TO DESTROY THE
OPERATIVE EFFECT OF THE JUDICIAL CLAUSE WITHIN THE DISTRICT."  IBID.
THE PRESENT ACT DOES PRECISELY THAT.  HENCE WE MAKE TODAY A MAJOR
RETREAT FROM O'DONOGHUE. 

MUCH IS MADE OF THE FACT THAT MANY STATES (ABOUT THREE-FORTHS OF
THEM) HAVE THEIR JUDGES AT ALL LEVELS ELECTED BY THE PEOPLE.  THAT WAS
ONE OF THE BASIC JACKSONIAN PRINCIPLES.  BUT THE PRINCIPLE GOVERNING
FEDERAL JUDGES IS STRONGLY OPPOSED.  /8/  HAMILTON STATED THE
PROPOSITION IN NO. 79 OF THE FEDERALIST (J. COOKE ED. 1961): 

"NEXT TO PERMANENCY IN OFFICE, NOTHING CAN CONTRIBUTE MORE TO THE
INDEPENDENCE OF THE JUDGES THAN A FIXED PROVISION FOR THEIR SUPPORT. 
THE REMARK MADE IN RELATION TO THE PRESIDENT, IS EQUALLY APPLICABLE
HERE.  IN THE GENERAL COURSE OF HUMAN NATURE, A POWER OVER A MAN'S
SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL.  AND WE CAN NEVER HOPE TO
SEE REALISED IN PRACTICE THE COMPLETE SEPARATION OF THE JUDICIAL FROM
THE LEGISLATIVE POWER, IN ANY SYSTEM, WHICH LEAVES THE FORMER DEPENDENT
FOR PECUNIARY RESOURCES ON THE OCCASIONAL GRANTS OF THE LATTER.  THE
ENLIGHTENED FRIENDS TO GOOD GOVERNMENT, IN EVERY STATE, HAVE SEEN CAUSE
TO LAMENT THE WANT OF PRECISE AND EXPLICIT PRECAUTIONS IN THE STATE
CONSTITUTIONS ON HIS HEAD.  SOME OF THESE INDEED HAVE DECLARED THAT
PERMANENT SALARIES SHOULD BE ESTABLISHED FOR THE JUDGES; BUT THE
EXPERIMENT HAS IN SOME INSTANCES SHOWN THAT SUCH EXPRESSIONS ARE NOT
SUFFICIENTLY DEFINITE TO PRECLUDE LEGISLATIVE EVASIONS.  SOMETHING
STILL MORE POSITIVE AND UNEQUIVOCAL HAS BEEN EVINCED TO BE REQUISITE. 
THE PLAN OF THE CONVENTION ACCORDINGLY HAS PROVIDED, THAT THE JUDGES OF
THE UNITED STATES 'SHALL AT STATED TIMES RECEIVE FOR THEIR SERVICES A
COMPENSATION, WHICH SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE IN
OFFICE.' 

     "THIS, ALL CIRCUMSTANCES CONSIDERED, IS THE MOST ELIGIBLE

  PROVISION THAT COULD HAVE BEEN DEVISED.  IT WILL READILY BE

  UNDERSTOOD, THAT THE FLUCTUATIONS IN THE VALUE OF MONEY, AND IN

  THE STATE OF SOCIETY, RENDERED A FIXED RATE OF COMPENSATION IN

  THE CONSTITUTION INADMISSIBLE.  WHAT MIGHT BE EXTRAVAGANT TO DAY,

MIGHT IN HALF A CENTURY BECOME PENURIOUS AND INADEQUATE.  IT WAS

  THEREFORE NECESSARY TO LEAVE IT TO THE DISCRETION OF THE

  LEGISLATURE TO VARY ITS PROVISIONS IN CONFORMITY TO THE

  VARIATIONS IN CIRCUMSTANCES; YET UNDER SUCH RESTRICTIONS AS TO

  PUT IT OUT OF THE POWER OF THAT BODY TO CHANGE THE CONDITION OF

  THE INDIVIDUAL FOR THE WORSE.  A MAN MAY THEN BE SURE OF THE

  GROUND UPON WHICH HE STANDS, AND CAN NEVER BE DETERRED FROM HIS

  DUTY BY THE APPREHENSION OF BEING PLACED IN A LESS ELIGIBLE

  SITUATION.  THE CLAUSE WHICH HAS BEEN QUOTED COMBINES BOTH

  ADVANTAGES.  THE SALARIES OF JUDICIAL OFFICES MAY FROM TIME TO

  TIME BE ALTERED, AS OCCASION SHALL REQUIRE, YET SO AS NEVER TO

  LESSEN THE ALLOWANCE WITH WHICH ANY PARTICULAR JUDGE COMES INTO

  OFFICE, IN RESPECT TO HIM." 

THAT THEORY IS OPPOSED TO THE JACKSONIAN PHILOSOPHY CONCERNING
ELECTION OF STATE JUDGES.  BUT THE PRESENT STATUTORY SCHEME FOR CONTROL
OVER SUPERIOR COURT JUDGES IS EVEN OPPOSED TO THE JACKSONIAN THEORY. 
IN THE DISTRICT OF COLUMBIA THE PEOPLE DO NOT ELECT THESE ART. I
JUDGES.  NOR DO THEY "RECALL" THEM AS IS DONE IN SOME STATES.  THE
SUPERIOR COURT JUDGES ARE NAMED BY THE PRESIDENT AND CONFIRMED BY THE
SENATE AND THEY ARE REMOVABLE BY A COMMISSION APPOINTED BY THE
PRESIDENT.  THE SUPERIOR COURT JUDGE HAS NO OPPORTUNITY TO PUT HIS
PROBLEMS, HIS CONDUCT, HIS BEHAVIOR ON THE BENCH TO THE PEOPLE.  THE
GUN OF THE COMMISSION IS HELD AT HIS HEAD.  ALL OF THE NORMAL VICES OF
A DEPENDENT, REMOVABLE JUDICIARY ARE ACCENTUATED IN THE DISTRICT OF
COLUMBIA. 

THE MATTER OF "LAW AND ORDER" NATURALLY ASSUMES IN THE MINDS OF A
MAJORITY OF THE PEOPLE IN THE DISTRICT AN ACUTE AND SPECIAL PROBLEM.  A
MINORITY, HOWEVER, SITS AS OVERLORD, CAUSING TENSIONS TO MOUNT.  THE
CASE OF HARRY ALEXANDER, A JUDGE ON THE SUPERIOR COURT, HAS BECOME
PROMINENT.  GREAT PRESSURES HAVE BEEN PUT ON HIM TO CONFORM -- OR
ELSE.  THE PROBLEM GOES NOT ONLY TO THE VIABILITY OF LIFE IN THE
DISTRICT BUT TO THE VITALITY OF THE GUARANTEES IN ART. III AND IN THE
BILL OF RIGHTS.  THOSE GUARANTEES RUN TO EVERY "PERSON"; AND THE JUDGES
ON THE ART. III COURTS WHO SIT IN THE DISTRICT DISPENSE JUSTICE EVENLY
AND NEVER UNDERTAKE TO RATION IT.  BUT SOME JUDGES, LIKE THE BILL OF
RIGHTS, ARE IN THE MINDS OF SOME A THREAT TO OUR SECURITY.     THEY,
HOWEVER, INSURE OUR SECURITY BY ADMINISTERING JUSTICE EVENHANDEDLY. 
THE IDEALS OF ART. III AND THE BILL OF RIGHTS PROVIDE THE MUCILAGE
WHICH HOLDS MAJORITIES AND MINORITIES TOGETHER IN THE FEDERAL SEGMENT
OF OUR NATION, AND MAKE TOLERABLE THE EXISTENCE OF NON-CONFORMISTS WHO
DO NOT WALK TO THE MEASURE OF THE BEAT OF THE CHIEF DRUMMER. 

WE TAKE A GREAT STEP BACKWARD TODAY WHEN WE DEPRIVE OUR FEDERAL
REGIME IN THE DISTRICT OF THAT JUDICIAL INDEPENDENCE WHICH HELPS INSURE
FEARLESS AND EVENHANDED DISPENSATION OF JUSTICE.  NO FEDERAL COURT
EXERCISING ART. III JUDICIAL POWER SHOULD BE MADE A MINION OF ANY CABAL
THAT FROM ACCIDENTS OF POLITICS COMES INTO THE ASCENDANCY AS AN
OVERLORD OF THE DISTRICT OF COLUMBIA.  THAT EFFORT UNHAPPILY SUCCEEDS
TODAY AND IS IN DISREGARD OF ONE OF OUR MOST CHERISHED CONSTITUTIONAL
PROVISIONS. 

AS MR. JUSTICE BLACK AND I PUT IT IN OUR DISSENT IN GLIDDEN CO. V.
ZDANOK, 370 U.S. 530, 598, THE ESSENTIAL PROBLEM IN DEALING WITH A
"JUDICIAL" FUNCTION EXERCISED BY AN ART. I COURT CONCERNS THE STANDARDS
AND PROCEDURES EMPLOYED.  IF THE POWER EXERCISED IS "JUDICIAL POWER"
DEFINED IN ART. III, AS WAS TRUE IN THE PRESENT CASE, THEN THE
STANDARDS AND PROCEDURES MUST CONFORM TO ART. III, ONE WHICH IS AN
INDEPENDENT JUDICIARY. 

THERE HAVE BEEN MANY PROPOSALS IN OUR HISTORY THAT ARE KIN TO THOSE
APPROVED TODAY; AND THE IMPORTANT ONES ARE REVIEWED BY PROF. KURLAND. 
/9/  TO DATE EFFORTS TO TAMPER WITH THE FEDERAL JUDICIARY HAVE NOT BEEN
SUCCESSFUL, UNLESS IT BE THE BIZARRE DECISION OF THIS COURT IN CHANDLER
V. JUDICIAL COUNCIL, 382 U.S. 1003, 1004, IN WHICH MR. JUSTICE BLACK
AND I DISSENTED.  THE STATES, OF COURSE, HAVE MOSTLY GONE THE OTHER
WAY.  /10/  BUT AS PROF. KURLAND OBSERVED:  /11/ 

"(THE VARIOUS DEVICES THAT THE STATES HAVE RECENTLY ADOPTED FOR
POLICING THEIR JUDICIARIES ARE LITTLE MORE THAN POLITE BLACKMAIL,
SUGGESTIONS THAT THE BAR IS UNHAPPY WITH THE JUDGE'S BEHAVIOR AND HE'D
BETTER SHAPE UP OR ELSE.  I SHUDDER TO THINK HOW (EASILY) THE FEDERAL
COURTS MIGHT HAVE BEEN DEPRIVED OF THE SERVICES OF JUDGE LEARNED HAND
UNDER SUCH A SYSTEM AS CALIFORNIA'S.  FOR POLITENESS TO COUNSEL AND A
WILLINGNESS TO TOLERATE FOOLS GLADLY WERE NOT AMONG HIS VIRTUES, AND IT
IS ONLY SUCH VIRTUES AND THAT OF REGULAR ATTENDANCE AT THE COURT HOUSE
THAT THE POLICING SYSTEMS SEEM CAPABLE OF EVOKING FROM TIMID JUDGES." 

THE WAY TO ACHIEVE WHAT IS DONE TODAY IS BY CONSTITUTIONAL
AMENDMENT.  PRESIDENT ANDREW JOHNSON IN 1868 SAID:  /12/ 

     "IT IS STRONGLY IMPRESSED ON MY MIND THAT THE TENURE OF OFFICE

  BY THE JUDICIARY OF THE UNITED STATES DURING GOOD BEHAVIOR FOR

  LIFE IS INCOMPATIBLE WITH THE SPIRIT OF REPUBLICAN GOVERNMENT,

  AND IN THIS OPINION I AM FULLY SUSTAINED BY THE EVIDENCE OF

  POPULAR JUDGMENT UPON THIS SUBJECT IN THE DIFFERENT STATES OF THE

  UNION. 

     "I THEREFORE DEEM IT MY DUTY TO RECOMMEND AN AMENDMENT TO THE

  CONSTITUTION BY WHICH THE TERMS OF THE JUDICIAL OFFICERS WOULD BE

  LIMITED TO A PERIOD OF YEARS, AND I HEREWITH PRESENT IT IN THE

 HOPE THAT CONGRESS WILL SUBMIT IT TO THE PEOPLE FOR THEIR

  DECISION." 

MANIPULATED JUDICIARIES ARE COMMON ACROSS THE WORLD, ESPECIALLY IN
COMMUNIST AND FASCIST NATIONS.  THE FAITH IN FREEDOM WHICH WE PROFESS
AND WHICH IS OPPOSED TO THOSE IDEOLOGIES ASSUMES TODAY AN OMINOUS
CAST.  IT IS OMINOUS BECAUSE IT INDIRECTLY ASSOCIATES THE CAUSES OF
CRIME WITH THE BILL OF RIGHTS RATHER THAN WITH THE SOCIOLOGICAL FACTORS
OF POVERTY CAUSED BY UNEMPLOYMENT AND DISEMPLOYMENT, THE ABRASIVE
POLITICAL TACTICS USED AGAINST MINORITIES, THE BLIGHT OF NARCOTICS AND
THE LIKE.  THOSE WHO HOLD THE GUN AT THE HEADS OF SUPERIOR COURT JUDGES
CAN RETALIATE AGAINST THOSE WHO RESPECT THE SPIRIT OF THE FOURTH
AMENDMENT AND THE FIFTH AMENDMENT AND WHO STAND FIRMLY AGAINST THE
ANCIENT PRACTICE OF USING THE THIRD DEGREE TO GET CONFESSIONS AND WHO
FERVENTLY BELIEVE THAT THE END DOES NOT JUSTIFY THE MEANS. 

I WOULD REVERSE THE JUDGMENT BELOW. 

[[DFN 

/1/  D. C. CODE ANN. ^ 11 - 101 (SUPP. V, 1972) PROVIDES, "THE
JUDICIAL POWER IN THE DISTRICT OF COLUMBIA IS VESTED IN . . . (2) THE
FOLLOWING DISTRICT OF COLUMIBA COURTS ESTABLISHED PURSUANT TO ARTICLE I
OF THE CONSTITUTION:  (A) THE DISTRICT OF COLUMBIA COURT OF APPEALS. 
(B) THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA." 

/2/  D. C. CODE ANN. ^ 11 - 1502 (SUPP. V, 1972). 

/3/  BY ART. III, ^ 1, FEDERAL JUDGES "HOLD THEIR OFFICES DURING
GOOD BEHAVIOUR, AND SHALL, AT STATED TIMES, RECEIVE FOR THEIR SERVICES,
A COMPENSATION, WHICH SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE
IN OFFICE." 

/4/  A COMMISSION ON JUDICIAL DISABILITITES AND TENURE IS
ESTABLISHED WITH THE POWER "TO SUSPEND, RETIRE, OR REMOVE" ONE OF THESE
JUDGES.  D. C. CODE ANN. ^ 11 - 1521 (SUPP. V, 1972).  THE PRESIDENT
NAMES THREE MEMBERS, THE COMMISSIONER OF THE DISTRICT NAMES ONE, AND
THE CHIEF JUDGE OF THE DISTRICT COURT NAMES THE FIFTH.  THERE ARE THREE
ALTERNATE MEMBERS.  THE PRESIDENT NAMES THE CHAIRMAN.  ID., ^ 11 -
1522.  ALL MEMBERS ARE APPOINTED FOR A TERM OF SIX YEARS.  ID., ^ 11 -
1523.  A JUDGE MUST BE REMOVED IF HE HAS COMMITTED A FELONY AND BEEN
FINALLY CONVICTED.  ID., ^ 11 - 1526(A) (1).  HE SHALL BE REMOVED IF
THE COMMISSION FINDS 

"(A) WILLFUL MISCONDUCT IN OFFICE, 

"(B) WILLFUL AND PERSISTENT FAILURE TO PERFORM JUDICIAL DUTIES, OR 

"(C) ANY OTHER CONDUCT WHICH IS PREJUDICIAL TO THE ADMINISTRATION OF
JUSTICE OR WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE."  IBID. 

HE SHALL BE INVOLUNTARILY RETIRED IF "(1) THE COMMISSION DETERMINES
THAT THE JUDGE SUFFERS FROM A MENTAL OR PHYSICAL DISABILITY (INCLUDING
HABITUAL INTEMPERANCE) WHICH IS OR IS LIKELY TO BECOME PERMANENT AND
WHICH PREVENTS, OR SERIOUSLY INTERFERES WITH, THE PROPER PERFORMANCE OF
HIS JUDICIAL DUTIES, AND (2) THE COMMISSION FILES IN THE DISTRICT OF
COLUMBIA COURT OF APPEALS AN ORDER OF INVOLUNTARY RETIREMENT AND THE
ORDER IS AFFIRMED ON APPEAL OR THE TIME WITHIN WHICH AN APPEAL MAY BE
TAKEN FROM THE ORDER HAS EXPIRED."  ID., ^ 11 - 1526(B). 

THE ACT ALSO CONTAINS ELABORATE PROVISIONS FOR THE SUSPENSION OF THE
JUDGE WITHOUT SALARY, OR WITH RETIREMENT SALARY, OR WITH SALARY
DEPENDENT ON THE CIRCUMSTANCES DESCRIBED IN ^ ^ 11 - 1526(C) (1), (2),
AND (3).  THE ACT CONTAINS THE PROCEDURE WHICH THE COMMISSION MUST
FOLLOW AND THE NOTICE AND HEARING TO WHICH THE JUDGE IS ENTITLED.  ID.,
^ 11 - 1527. 

/5/  MADISON, 2 JOURNAL OF THE FEDERAL CONVENTION 257 (G. HUNT ED.
1908). 

/6/  H. R. REP. NO. 135, 89TH CONG., 1ST SESS.; S. REP. NO. 1504,
89TH CONG., 2D SESS. 

/7/  H. R. REP. NO. 135, SUPRA, N. 6, AT 2. 

/8/  SEE BROWN, THE RENT IN OUR JUDICIAL ARMOR, 10 GEO. WASH. L.
REV. 127 (1941); HYDE, JUDGES:  THEIR SELECTION AND TENURE, 22 N. Y. U.
L. Q. REV. 389 (1947); E. HAYNES, SELECTION AND TENURE OF JUDGES
(1944); KURLAND, THE CONSTITUTION AND THE TENURE OF FEDERAL JUDGES:
SOME NOTES FROM HISTORY, 36 U. CHI.  L. REV. 665 (1969). 

JAMES BRYCE, WRITING IN 1888, SAID:  "ANY ONE OF THE THREE PHENOMENA
I HAVE DESCRIBED -- POPULAR ELECTIONS, SHORT TERMS, AND SMALL SALARIES
- WOULD BE SUFFICIENT TO LOWER THE CHARACTER OF THE JUDICIARY.  POPULAR
ELECTIONS THROW THE CHOICE INTO THE HANDS OF POLITICAL PARTIES, THAT IS
TO SAY, OF KNOTS OF WIREPULLERS INCLINED TO USE EVERY OFFICE AS A MEANS
OF REWARDING POLITICAL SERVICES, AND GARRISONING WITH GRATEFUL
PARTISANS POSTS WHICH MAY CONCEIVABLY BECOME OF POLITICAL IMPORTANCE. 
SHORT TERMS . . . OBLIGE THE JUDGE TO REMEMBER AND KEEP ON GOOD TERMS
WITH THOSE WHO HAVE MADE HIM WHAT HE IS, AND IN WHOSE HANDS HIS
FORTUNES LIE.  THEY INDUCE TIMIDITY, THEY DISCOURAGE INDEPENDENCE."  1
AMERICAN COMMONWEALTH, C. 42, P. 507 (3D ED. 1905). 

/9/  KURLAND, SUPRA, N. 8. 

/10/  THE CALIFORNIA SYSTEM IS DISCUSSED BY JACK E. FRANKEL,
EXECUTIVE SECRETARY OF THE CALIFORNIA COMMISSION ON JUDICIAL
QUALIFICATIONS, IN REMOVAL OF JUDGES:  CALIFORNIA TACKLES AN OLD
PROBLEM, 49 A. B. A. J. 166 (1963).  MR. FRANKEL WAS QUOTED WITH
APPROVAL IN THE SENATE REPORT PROPOSING THE DISTRICT OF COLUMBIA COURT
REFORM AND CRIMINAL PROCEDURE ACT OF 1970.  S. REP. NO. 91 - 405, P.
11. 

/11/  KURLAND, SUPRA, N. 8, AT 668. 

/12/  8 MESSAGE AND PAPERS OF THE PRESIDENT 3841 (J. RICHARDSON ED.
1897). 

FRANK F. FLEGAL ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL PETERSEN, DEPUTY
SOLICITOR GENERAL LACOVARA, KEITH A. JONES, ROGER A. PAULEY, AND
MARSHALL TAMOR GOLDING. 
..END :



















UNITED STATES V. RUSSELL, 411 U.S. 423 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 71 - 1585.  ARGUED FEBRUARY 27, 1973 -- DECIDED APRIL

           24, 1973; 459 F.2D 671, REVERSED. 


    AN UNDERCOVER NARCOTICS AGENT INVESTIGATING RESPONDENT AND HIS

  CONFEDERATES FOR ILLICITLY MANUFACTURING A DRUG, OFFERED THEM AN

  ESSENTIAL INGREDIENT WHICH WAS DIFFICULT TO OBTAIN, THOUGH

  LEGALLY AVAILABLE.  AFTER THE AGENT HAD OBSERVED THE PROCESS AND

  CONTRIBUTED THE INGREDIENT IN RETURN FOR A SHARE OF THE FINISHED

  PRODUCT, RESPONDENT WAS FOUND GUILTY BY A JURY WHICH HAD BEEN

  GIVEN THE STANDARD ENTRAPMENT INSTRUCTION.  THE COURT OF APPEALS

  REVERSED, CONCLUDING THAT THERE HAD BEEN "AN INTOLERABLE DEGREE

  OF GOVERNMENTAL PARTICIPATION IN THE CRIMINAL ENTERPRISE."  HELD:

   THE ENTRAPMENT DEFENSE, WHICH, AS EXPLICATED IN SORRELLS V.

  UNITED STATES, 287 U.S. 435, AND SHERMAN V. UNITED STATES, 356

  U.S. 369, PROHIBITS LAW ENFORCEMENT OFFICERS FROM INSTIGATING

  CRIMINAL ACTS BY OTHERWISE INNOCENT PERSONS IN ORDER TO LURE THEM

  TO COMMIT CRIMES AND PUNISH THEM, DID NOT BAR THE CONVICTION OF

  RESPONDENT IN VIEW OF THE EVIDENCE OF RESPONDENT'S INVOLVEMENT IN

  MAKING THE DRUG BEFORE AND AFTER THE AGENT'S VISITS, AND

RESPONDENT'S CONCESSION "THAT HE MAY HAVE HARBORED A

  PREDISPOSITION TO COMMIT THE CHARGED OFFENSES."  NOR WAS THE

AGENT'S INFILTRATION OF THE DRUG-MAKING OPERATION OF SUCH A

  NATURE AS TO VIOLATE FUNDAMENTAL PRINCIPLES OF DUE PROCESS.  PP.

  428 - 436. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ., JOINED,
POST, P. 439. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

[[HC424'(ORIGINAL DOCUMENT PAGE 424)' 

RESPONDENT RICHARD RUSSELL WAS CHARGED IN THREE COUNTS OF A FIVE
COUNT INDICTMENT RETURNED AGAINST HIM AND CODEFENDANTS JOHN AND PATRICK
CONNOLLY.  /1/  AFTER A JURY TRIAL IN THE DISTRICT COURT, IN WHICH HIS
SOLE DEFENSE WAS ENTRAPMENT, RESPONDENT WAS CONVICTED ON ALL THREE
COUNTS OF HAVING UNLAWFULLY MANUFACTURED AND PROCESSED METHAMPHETAMINE
("SPEED") AND OF HAVING UNLAWFULLY SOLD AND DELIVERED THAT DRUG IN
VIOLATION OF 21 U.S.C. ^^ 331(Q) (1), (2), 360A (A), (B) (1964 ED.,
SUPPL.  V).  HE WAS SENTENCED TO CONCURRENT TERMS OF TWO YEARS IN
PRISON FOR EACH OFFENSE, THE TERMS TO BE SUSPENDED ON THE CONDITION
THAT HE SPEND SIX MONTHS IN PRISON AND BE PLACED ON PROBATION FOR THE
FOLLOWING THREE YEARS.  ON APPEAL, THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT, ONE JUDGE DISSENTING, REVERSED THE CONVICTION
SOLELY FOR THE REASON THAT AN UNDERCOVER AGENT SUPPLIED AN ESSENTIAL
CHEMICAL FOR MANUFACTURING THE METHAMPHETAMINE WHICH FORMED THE BASIS
OF RESPONDENT'S CONVICTION.  THE COURT CONCLUDED THAT AS A MATTER OF
LAW "A DEFENSE TO A CRIMINAL CHARGE MAY BE FOUNDED UPON AN INTOLERABLE
DEGREE OF GOVERNMENTAL PARTICIPATION IN THE CRIMINAL ENTERPRISE."  459
F.2D 671, 673 (CA9 1972).  WE GRANTED CERTIORARI, 409 U.S. 911 (1972),
AND NOW REVERSE THAT JUDGMENT. 

[[HC425'(ORIGINAL DOCUMENT PAGE 425)' 

THERE IS LITTLE DISPUTE CONCERNING THE ESSENTIAL FACTS IN THIS
CASE.  ON DECEMBER 7, 1969, JOE SHAPIRO, AN UNDERCOVER AGENT FOR THE
FEDERAL BUREAU OF NARCOTICS AND DANGEROUS DRUGS, WENT TO RESPONDENT'S
HOME ON WHIDBEY ISLAND IN THE STATE OF WASHINGTON WHERE HE MET WITH
RESPONDENT AND HIS TWO CODEFENDANTS, JOHN AND PATRICK CONNOLLY. 
SHAPIRO'S ASSIGNMENT WAS TO LOCATE A LABORATORY WHERE IT WAS BELIEVED
THAT METHAMPHETAMINE WAS BEING MANUFACTURED ILLICITLY.  HE TOLD THE
RESPONDENT AND THE CONNOLLYS THAT HE REPRESENTED AN ORGANIZATION IN THE
PACIFIC NORTHWEST THAT WAS INTERESTED IN CONTROLLING THE MANUFACTURE
AND DISTRIBUTION OF METHAMPHETAMINE.  HE THEN MADE AN OFFER TO SUPPLY
THE DEFENDANTS WITH THE CHEMICAL PHEYNL-2-PROPANONE, AN ESSENTIAL
INGREDIENT IN THE MANUFACTURE OF METHAMPHTAMINE, IN RETURN FOR ONE-HALF
OF THE DRUG PRODUCED.  THIS OFFER WAS MADE ON THE CONDITION THAT AGENT
SHAPIRO BE SHOWN A SAMPLE OF THE DRUG WHICH THEY WERE MAKING AND THE
LABORATORY WHERE IT WAS BEING PRODUCED. 

DURING THE CONVERSATION, PATRICK CONNOLLY REVEALED THAT HE HAD BEEN
MAKING THE DRUG SINCE MAY 1969 AND SINCE THEN HAD PRODUCED THREE POUNDS
OF IT.  /2/  JOHN CONNOLLY GAVE THE AGENT A BAG CONTAINING A QUANTITY
OF METHAMPHETAMINE THAT HE REPRESENTED AS BEING FROM "THE LAST BATCH
THAT WE MADE."  SHORTLY THEREAFTER, SHAPIRO AND PATRICK CONNOLLY LEFT
RESPONDENT'S HOUSE TO VIEW THE LABORATORY WHICH WAS LOCATED IN THE
CONNOLLY HOUSE ON WHIDBEY ISLAND.  AS THE HOUSE, SHAPIRO OBSERVED AN
EMPTY BOTTLE BEARING THE CHEMICAL LABEL PHENYL-2-PROPANONE. 

BY PREARRANGEMENT, SHAPIRO RETURNED TO THE CONNOLLY HOUSE ON
DECEMBER 9, 1969, TO SUPPLY 100 GRAMS OF PROPANONE AND OBSERVE THE
MANUFACTURING PROCESS. 

[[HC426'(ORIGINAL DOCUMENT PAGE 426)'  WHEN HE ARRIVED HE OBSERVED
PATRICK CONNOLLY AND THE RESPONDENT CUTTING UP PIECES OF ALUMINUM FOIL
AND PLACING THEM IN A LARGE FLASK.  THERE WAS TESTIMONY THAT SOME OF
THE FOIL PIECES ACCIDENTALLY FELL ON THE FLOOR AND WERE PICKED UP BY
THE RESPONDENT AND SHAPIRO AND PUT INTO THE FLASK.  /3/  THEREAFTER,
PATRICK CONNOLLY ADDED ALL OF THE NECESSARY CHEMICALS, INCLUDING THE
PROPANONE BROUGHT BY SHAPIRO, TO MAKE TWO BATCHES OF METHAMPHETAMINE. 
THE MANUFACTURING PROCESS HAVING BEEN COMPLETED THE FOLLOWING MORNING,
SHAPIRO WAS GIVEN ONE-HALF OF THE DRUG AND RESPONDENT KEPT THE
REMAINDER.  SHAPIRO OFFERED TO BUY, AND THE RESPONDENT AGREED TO SELL,
PART OF THE REMAINDER FOR $60. 

ABOUT A MONTH LATER, SHAPIRO RETURNED TO THE CONNOLLY HOUSE AND MET
WITH PATRICK CONNOLLY TO ASK IF HE WAS STILL INTERESTED IN THEIR
"BUSINESS ARRANGMENT."  CONNOLLY REPLIED THAT HE WAS INTERESTED BUT
THAT HE HAD RECENTLY OBTAINED TWO ADDITIONAL BOTTLES OF PHENYL-2
PROPANONE AND WOULD NOT BE FINISHED WITH THEM FOR A COUPLE OF DAYS.  HE
PROVIDED SOME ADDITIONAL METHAMPHETAMINE TO SHAPIRO AT THAT TIME. 
THREE DAYS LATER SHAPIRO RETURNED TO THE CONNOLLY HOUSE WITH A SEARCH
WARRANT AND, AMONG OTHER ITEMS, SEIZED AN EMPTY 500-GRAM BOTTLE OF
PROPANONE AND A 100-GRAM BOTTLE, NOT THE ONE HE HAD PROVIDED, THAT WAS
PARTIALLY FILLED WITH THE CHEMICAL. 

THERE WAS TESTIMONY AT THE TRIAL OF RESPONDENT AND PATRICK CONNOLLY
THAT PHENYL-2-PROPANONE WAS GENERALLY DIFFICULT TO OBTAIN.  AT THE
REQUEST OF THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS, SOME CHEMICAL
SUPPLY FIRMS HAD VOLUNTARILY CEASED SELLING THE CHEMICAL. 

[[HC427'(ORIGINAL DOCUMENT PAGE 427)' 

AT THE CLOSE OF THE EVIDENCE, AND AFTER RECEIVING THE DISTRICT
JUDGE'S STANDARD ENTRAPMENT INSTRUCTION, /4/  THE JURY FOUND THE
RESPONDENT GUILTY ON ALL COUNTS CHARGED.  ON APPEAL, THE RESPONDENT
CONCEDED THAT THE JURY COULD HAVE FOUND HIM PREDISPOSED TO COMMIT THE
OFFENSES, 459 F.2D, AT 672, BUT ARGUED THAT ON THE FACTS PRESENTED
THERE WAS ENTRAPMENT AS A MATTER OF LAW.  THE COURT OF APPEALS AGREED,
ALTHOUGH IT DID NOT FIND THE DISTRICT COURT HAD MISCONSTRUED OR
MISAPPLIED THE TRADITIONAL STANDARDS GOVERNING THE ENTRAPMENT DEFENSE. 
RATHER, THE COURT IN EFFECT EXPANDED THE TRADITIONAL NOTION OF
ENTRAPMENT, WHICH FOCUSES ON THE PREDISPOSITION OF THE DEFENDANT, TO
MANDATE DISMISSAL OF A CRIMINAL PROSECUTION WHENEVER THE COURT
DETERMINES THAT THERE HAS BEEN "AN INTOLERABLE DEGREE OF GOVERNMENTAL
PARTICIPATION IN THE CRIMINAL ENTERPRISE."  IN THIS CASE THE COURT
DECIDED THAT THE CONDUCT OF THE AGENT IN SUPPLYING A SCARCE INGREDIENT
ESSENTIAL FOR THE MANUFACTURE OF A CONTROLLED SUBSTANCE ESTABLISHED
THAT DEFENSE. 

THIS NEW DEFENSE WAS HELD TO REST ON EITHER OF TWO ALTERNATIVE
THEORIES.  ONE THEORY IS BASED ON TWO LOWER COURT DECISIONS WHICH HAVE
FOUND ENTRAPMENT, REGARDLESS OF PREDISPOSITION, WHENEVER THE GOVERNMENT
SUPPLIES CONTRABAND TO THE DEFENDANTS.  UNITED STATES V. BUENO, 447
F.2D 903 (CA5 1971); UNITED STATES V. CHISUM, 312 F. SUPP. 1307 (CD
CAL. 1970). 

[[HC428'(ORIGINAL DOCUMENT PAGE 428)'  THE SECOND THEORY, A
NONENTRAPMENT RATIONALE, IS BASED ON A RECENT NINTH CIRCUIT DECISION
THAT REVERSED A CONVICTION BECAUSE A GOVERNMENT INVESTIGATOR WAS SO
ENMESHED IN THE CRIMINAL ACTIVITY THAT THE PROSECUTION OF THE
DEFENDANTS WAS HELD TO BE REPUGNANT TO THE AMERICAN CRIMINAL JUSTICE
SYSTEM.  GREENE V. UNITED STATES, 454 F.2D 783 (CA9 1971).  THE COURT
BELOW HELD THAT THESE TWO RATIONALES CONSTITUTE THE SAME DEFENSE, AND
THAT ONLY THE LABEL DISTINGUISHES THEM.  IN ANY EVENT, IT HELD THAT
"(BOTH THEORIES ARE PREMISED ON FUNDMENTAL CONCEPTS OF DUE PROCESS AND
EVINCE THE RELUCTANCE OF THE JUDICIARY TO COUNTENANCE 'OVERZEALOUS LAW
ENFORCEMENT.'"  459 F.2D, AT 674, QUOTING SHERMAN V. UNITED STATES, 356
U.S. 369, 381 (1958) (FRANKFURTER, J., CONCURRING IN RESULT). 

THIS COURT FIRST RECOGNIZED AND APPLIED THE ENTRAPMENT DEFENSE IN
SORRELLS V. UNITED STATES, 287 U.S. 435 (1932).  /5/  IN SORRELLS, A
FEDERAL PROHIBITION AGENT VISITED THE DEFENDANT WHILE POSING AS A
TOURIST AND ENGAGED HIM IN CONVERSATION ABOUT THEIR COMMON WAR
EXPERIENCES.  AFTER GAINING THE DEFENDANT'S CONFIDENCE, THE AGENT ASKED
FOR SOME LIQUOR, WAS TWICE REFUSED, BUT UPON ASKING A THIRD TIME THE
DEFENDANT FINALLY CAPITULATED, AND WAS SUBSEQUENTLY PROSECUTED FOR
VIOLATING THE NATIONAL PROHIBITION ACT. 

MR. CHIEF JUSTICE HUGHES, SPEAKING FOR THE COURT, HELD THAT AS A
MATTER OF STATUTORY CONSTRUCTION THE DEFENSE OF ENTRAPMENT SHOULD HAVE
BEEN AVAILABLE TO THE DEFENDANT.  UNDER THE THEORY PROPOUNDED BY THE
CHIEF JUSTICE, THE ENTRAPMENT DEFENSE PROHIBITS LAW ENFORCEMENT
OFFICERS FROM INSTIGATING A CRIMINAL ACT BY PERSONS "OTHERWISE INNOCENT
IN ORDER TO LURE THEM TO ITS COMMISSION AND TO PUNISH THEM." 

[[HC429'(ORIGINAL DOCUMENT PAGE 429)'  287 U.S., AT 448.  THUS, THE
THRUST OF THE ENTRAPMENT DEFENSE WAS HELD TO FOCUS ON THE INTENT OR
PREDISPOSITION OF THE DEFENDANT TO COMMIT THE CRIME.  "(IF THE
DEFENDANT SEEKS ACQUITTAL BY REASON OF ENTRAPMENT HE CANNOT COMPLAIN OF
AN APPROPRIATE AND SEARCHING INQUIRY INTO HIS OWN CONDUCT AND
PREDISPOSITION AS BEARING UPON THAT ISSUE."  ID., AT 451. 

MR. JUSTICE ROBERTS CONCURRED BUT WAS OF THE VIEW "THAT COURTS MUST
BE CLOSED TO THE TRIAL OF A CRIME INSTIGATED BY THE GOVERNMENT'S OWN
AGENTS."  ID., AT 459.  /6/  THE DIFFERENCE IN THE VIEW OF THE MAJORITY
AND THE CONCURRING OPINIONS IS THAT IN THE FORMER THE INQUIRY FOCUSES
ON THE PREDISPOSITION OF THE DEFENDANT, WHEREAS IN THE LATTER THE
INQUIRY FOCUSES ON WHETHER THE GOVERNMENT "INSTIGATED THE CRIME." 

IN 1958 THE COURT AGAIN CONSIDERED THE THEORY UNDERLYING THE
ENTRAPMENT DEFENSE AND EXPRESSLY REAFFIRMED THE VIEW EXPRESSED BY THE
SORRELLS MAJORITY.  SHERMAN V. UNITED STATES, SUPRA.  IN SHERMAN THE
DEFENDANT WAS CONVICTED OF SELLING NARCOTICS TO A GOVERNMENT INFORMER. 
AS IN SORRELLS, IT APPEARS THAT THE GOVERNMENT AGENT GAINED THE
CONFIDENCE OF THE DEFENDANT AND, DESPITE INITIAL RELUCTANCE, THE
DEFENDANT FINALLY ACCEDED TO THE REPEATED IMPORTUNINGS OF THE AGENT TO
COMMIT THE CRIMINAL ACT.  ON THE BASIS OF SORRELLS, THIS COURT REVERSED
THE AFFIRMANCE OF THE DEFENDANT'S CONVICTION. 

IN AFFIRMING THE THEORY UNDERLYING SORRELLS, MR. CHIEF JUSTICE
WARREN FOR THE COURT, HELD THAT "(TO DETERMINE WHETHER ENTRAPMENT HAS
BEEN ESTABLISHED, A LINE MUST BE DRAWN BETWEEN THE TRAP FOR THE UNWARY
INNOCENT AND THE TRAP FOR THE UNWARY CRIMINAL."  356 U.S., AT 372.  MR.
JUSTICE FRANKFURTER STATED IN AN OPINION CONCURRING IN THE RESULT THAT
HE BELIEVED MR. JUSTICE ROBERTS HAD THE BETTER VIEW IN SORRELLS AND
WOULD HAVE FRAMED THE QUESTION TO BE ASKED IN AN ENTRAPMENT DEFENSE IN
TERMS OF "WHETHER THE POLICE CONDUCT REVEALED IN THE PARTICULAR CASE
FALLS BELOW STANDARDS . . . FOR THE PROPER USE OF GOVERNMENTAL POWER." 

[[HC430'(ORIGINAL DOCUMENT PAGE 430)'  ID., AT 382.  /7/ 

IN THE INSTANT CASE, RESPONDENT ASKS US TO RECONSIDER THE THEORY OF
THE ENTRAPMENT DEFENSE AS IT IS SET FORTH IN THE MAJORITY OPINIONS IN
SORRELLS AND SHERMAN.  HIS PRINCIPAL CONTENTION IS THAT THE DEFENSE
SHOULD REST ON CONSTITUTIONAL GROUNDS.  HE ARGUES THAT THE LEVEL OF
SHAPIRO'S INVOLVEMENT IN THE MANUFACTURE OF THE METHAMPHETAMINE WAS SO
HIGH THAT A CRIMINAL PROSECUTION FOR THE DRUG'S MANUFACTURE VIOLATES
THE FUNDAMENTAL PRINCIPLES OF DUE PROCESS.  THE RESPONDENT THAT THE
SAME FACTORS THAT LED THIS COURT TO APPLY THE EXCLUSIONARY RULE TO
ILLEGAL SEARCHES AND SEIZURES, WEEKS V. UNITED STATES, 232 U.S. 383
(1914); MAPP V. OHIO, 367 U.S. 643 )1961), AND CONFESSIONS, MIRANDA V.
ARIZONA, 384 U.S. 436 )1966), SHOULD BE CONSIDERED HERE.  BUT HE WOULD
HAVE THE COURT GO FURTHER IN DETERRING UNDESIRABLE OFFICIAL CONDUCT BY
REQUIRING THAT ANY PROSECUTION BE BARRED ABSOLUTELY BECAUSE OF THE
POLICE INVOLVEMENT IN CRIMINAL ACTIVITY.  THE ANALOGY IS IMPERFECT IN
ANY EVENT, FOR THE PRINCIPAL REASON BEHIND THE ADOPTION OF THE
EXCLUSIONARY RULE WAS THE GOVERNMENT'S "FAILURE TO OBSERVE ITS OWN
LAWS."  MAPP V. OHIO, SUPRA, AT 659.  UNLIKE THE SITUATIONS GIVING RISE
TO THE HOLDINGS IN MAPP AND MIRANDA, THE GOVERNMENT'S CONDUCT HERE
VIOLATED NO INDEPENDENT CONSTITUTIONAL RIGHT OF THE RESPONDENT.  NOR
DID SHAPIRO VIOLATE ANY FEDERAL STATUTE OR RULE OR COMMIT ANY CRIME IN
INFILTRATING THE RESPONDENT'S DRUG ENTERPRISE. 

RESPONDENT WOULD OVERCOME THIS BASIC WEAKNESS IN HIS ANALOGY TO THE
EXCLUSIONARY RULE CASES BY HAVING THE COURT ADOPT A RIGID
CONSTITUTIONAL RULE THAT WOULD PRECLUDE ANY PROSECUTION WHEN IT IS
SHOWN THAT THE CRIMINAL CONDUCT WOULD NOT HAVE BEEN POSSIBLE HAD NOT AN
UNDERCOVER AGENT "SUPPLIED AN INDISPENSABLE MEANS TO THE COMMISSION OF
THE CRIME THAT COULD NOT HAVE BEEN OBTAINED OTHERWISE, THROUGH LEGAL OR
ILLEGAL CHANNELS." 

[[HC431'(ORIGINAL DOCUMENT PAGE 431)'  EVEN IF WE WERE TO SURMOUNT
THE DIFFICULTIES ATTENDING THE NOTION THAT DUE PROCESS OF LAW CAN BE
EMBODIED IN FIXED RULES, AND THOSE ATTENDING RESPONDENT'S PARTICULAR
FORMULATION, THE RULE HE PROPOSES WOULD NOT APPEAR TO BE OF SIGNIFICANT
BENEFIT TO HIM.  FOR, ON THE RECORD PRESENTED, IT APPEARS THAT HE
CANNOT FIT WITHIN THE TERMS OF THE VERY RULE HE PROPOSES.  /8/ 

THE RECORD DISCLOSES THAT ALTHOUGH THE PROPANONE WAS DIFFICULT TO
OBTAIN, IT WAS BY NO MEANS IMPOSSIBLE.  THE DEFENDANTS ADMITTED MAKING
THE DRUG BOTH BEFORE AND AFTER THOSE BATCHES MADE WITH THE PROPANONE
SUPPLIED BY SHAPIRO.  SHAPIRO TESTIFIED THAT HE SAW AN EMPLY BOTTLE
LABELED PHENYL-2-PROPANONE ON HIS FIRST VISIT TO THE LABORATORY ON
DECEMBER 7, 1969.  AND WHEN THE LABORATORY WAS SEARCHED PURSUANT TO A
SEARCH WARRANT ON JANUARY 19, 1970, TWO ADDITIONAL BOTTLES LABELED
PHENYL-2-PROPANONE WERE SEIZED.  THUS, THE FACTS IN THE RECORD AMPLY
DEMONSTRATE THAT THE PROPANONE USED IN THE ILLICIT MANUFACTURE OF
METHAMPHETAMINE NOT ONLY COULD HAVE BEEN OBTAINED WITHOUT THE
INTERVENTION OF SHAPIRO BUT WAS IN FACT OBTAINED BY THESE DEFENDANTS. 
WHILE WE MAY SOME DAY BE PRESENTED WITH A SITUATION IN WHICH THE
CONDUCT OF LAW ENFORCEMENT AGENTS IS SO OUTRAGEOUS THAT DUE PROCESS
PRINCIPLES WOULD ABSOLUTELY BAR THE GOVERNMENT FROM INVOKING JUDICIAL
PROCESSES TO OBTAIN A CONVICTION, CF. ROCHIN V. CALIFORNIA, 342 U.S.
165 (1952), THE INSTANT CASE IS DISTINCTLY NOT OF THAT BREED. 

[[HC432'(ORIGINAL DOCUMENT PAGE 432)'  SHAPIRO'S CONTRIBUTION OF
PROPANONE TO THE CRIMINAL ENTERPRISE ALREADY IN PROCESS WAS SCARECLY
OBJECTIONABLE.  THE CHEMICAL IS BY ITSELF A HARMLESS SUBSTANCE AND ITS
POSSESSION IS LEGAL.  WHILE THE GOVERNMENT MAY HAVE BEEN SEEKING TO
MAKE IT MORE DIFFICULT FOR DRUG RINGS, SUCH AS THAT OF WHICH RESPONDENT
WAS A MEMBER, TO OBTAIN THE CHEMCIAL, THE EVIDENCE DESCRIBED ABOVE
SHOWS THAT IT NONETHELESS WAS OBTAINABLE.  THE LAW ENFORCEMENT CONDUCT
HERE STOPS FAR SHORT OF VIOLATING THAT "FUNDAMENTAL FAIRNESS, SHOCKING
TO THE UNIVERSAL SENSE OF JUSTICE," MANDATED BY THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT.  KINSELLA V. UNITED STATES EX REL. SINGLETON,
361 U.S. 234, 246 (1960). 

THE ILLICIT MANUFACTURE OF DRUGS IS NOT A SPORADIC, ISOLATED
CRIMINAL INCIDENT, BUT A CONTINUING, THOUGH ILLEGAL, BUSINESS
ENTERPRISE.  IN ORDER TO OBTAIN CONVICTIONS FOR ILLEGALLY MANUFACTURING
DRUGS, THE GATHERING OF EVIDENCE OF PAST UNLAWFUL CONDUCT FREQUENTLY
PROVES TO BE AN ALL BUT IMPOSSIBLE TASK.  THUS IN DRUG-RELATED OFFENSES
LAW ENFORCEMENT PERSONNEL HAVE TURNED TO ONE OF THE ONLY PRACTICABLE
MEANS OF DETECTION:  THE INFILTRATION OF DRUG RINGS AND A LIMITED
PARTICIPATION IN THEIR UNLAWFUL PRESENT PRACTICES.  SUCH INFILTRATION
IS A RECOGNIZED AND PERMISSIBLE MEANS OF INVESTIGATION; IF THAT BE SO,
THEN THE SUPPLY OF SOME ITEM OF VALUE THAT THE DRUG RING REQUIRES MUST,
AS A GENERAL RULE, ALSO BE PERMISSIBLE.  FOR AN AGENT WILL NOT BE TAKEN
INTO THE CONFIDENCE OF THE ILLEGAL ENTREPRENEURS UNLESS HE HAS
SOMETHING OF VALUE TO OFFER THEM.  LAW ENFORCEMENT TACTICS SUCH AS THIS
CAN HARDLY BE SAID TO VIOLATE "FUNDMENTAL FAIRMNESS" OR "SHOCKING TO
THE UNIVERSAL SENSE OF JUSTICE," KINSELLA, SUPRA. 

RESPONDENT ALSO URGES, AS AN ALTERNATIVE TO HIS CONSTITUTIONAL
ARGUMENT, THAT WE BROADEN THE NONCONSTITUTIONAL DEFENSE OF ENTRAPMENT
IN ORDER TO SUSTAIN THE JUDGMENT OF THE COURT OF APPEALS. 

[[HC433'(ORIGINAL DOCUMENT PAGE 433)'  THIS COURT'S OPINIONS IN
SORRELLS V. UNITED STATES, SUPRA, AND SHERMAN V. UNITED STATES, SUPRA,
HELD THAT THE PRINCIPAL ELEMENT IN UNITED STATES, SUPRA, HELD THAT THE
PRINCIPAL ELEMENT IN THE DEFENSE OF ENTRAPMENT WAS THE DEFENDANT'S
PREDISPOSITION TO COMMIT THE CRIME.  RESPONDENT CONCEDED IN THE COURT
OF APPEALS, AS WELL HE MIGHT, "THAT HE MAY HAVE HARBORED A
PREDISPOSITION TO COMMIT THE CHARGED OFFENSES."  459 F.2D, AT 672.  YET
HE ARGUES THAT THE JURY'S REFUSAL TO FIND ENTRAPMENT UNDER THE CHARGE
SUBMITTED TO IT BY THE TRIAL COURT SHOULD BE OVERTURNED AND THE VIEWS
OF JUSTICES ROBERTS AND FRANKFURTER, IN SORRELLS AND SHERMAN,
RESPECTIVELY, WHICH MAKE THE ESSENTIAL ELEMENT OF THE DEFENSE TURN ON
THE TYPE AND DEGREE OF GOVERNMENTAL CONDUCT, BE ADOPTED AS THE LAW. 

WE DECLINE TO OVERRULE THESE CASES.  SORRELLS IS A PRECEDENT OF LONG
STANDING THAT HAS ALREADY BEEN ONCE RE-EXAMINED IN SHERMAN AND
IMPLICITLY THERE REAFFIRMED.  SINCE THE DEFENSE IS NOT OF A
CONSTITUTIONAL DIMENSION, CONGRESS MAY ADDRESS ITSELF TO THE QUESTION
AND ADOPT ANY SUBSTANTIVE DEFINITION OF THE DEFENSE THAT IT MAY FIND
DESIRABLE.  /9/ 

CRITICS OF THE RULE LAID DOWN IN SORRELLS AND SHERMAN HAVE SUGGESTED
THAT ITS BASIS IN THE IMPLIED INTENT OF CONGRESS IS LARGELY FICTITIOUS,
AND HAVE POINTED TO WHAT THEY CONCEIVE TO BE THE ANOMALOUS DIFFERENCE
BETWEEN THE TREATMENT OF A DEFENDANT WHO IS SOLICITED BY A PRIVATE
INDIVIDUAL AND ONE WHO IS ENTRAPPED BY A GOVERNMENT AGENT.  QUESTIONS
HAVE BEEN LIKEWISE RAISED AS TO WHETHER "PREDISPOSITION" CAN BE
FACTUALLY ESTABLISHED WITH THE REQUISITE DEGREE OF CERTAINTY. 
ARGUMENTS SUCH AS THESE, WHILE NOT DEVOID OF APPEAL, HAVE BEEN TWICE
PREVIOUSLY MADE TO THIS COURT, AND TWICE REJECTED BY IT, FIRST IN
SORRELLS AND THEN IN SHERMAN. 

[[HC434'(ORIGINAL DOCUMENT PAGE 434)' 

WE BELIEVE THAT AT LEAST EQUALLY COGENT CRITICISM HAS BEEN MADE OF
THE CONCURRING VIEWS IN THESE CASES.  COMMENTING IN SHERMAN ON MR.
JUSTICE ROBERTS' POSITION IN SORRELLS THAT "ALTHOUGH THE DEFENDANT
COULD CLAIM THAT THE GOVERNMENT HAD INDUCED HIM TO COMMIT THE CRIME,
THE GOVERNMENT COULD NOT REPLY BY SHOWING THAT THE DEFENDANT'S CRIMINAL
CONDUCT WAS DUE TO HIS OWN READINESS AND NOT TO THE PERSUASION OF
GOVERNMENT AGENTS,"  SHERMAN V. UNITED STATES, 356 U.S., AT 376 - 377,
MR. CHIEF JUSTICE WARREN QUOTED THE OBSERVATION OF JUDGE LEARNED HAND
IN AN EARLIER STAGE OF THAT PROCEEDING: 

"'INDEED, IT WOULD SEEM PROBABLE THAT, IF THERE WERE NO REPLY (TO
THE CLAIM OF INDUCEMENT), IT WOULD BE IMPOSSIBLE EVER TO SECURE
CONVICTIONS OF ANY OFFENCES WHICH CONSIST OF TRANSACTIONS THAT ARE
CARRIED ON IN SECRET.'  UNITED STATES V. SHERMAN, 200 F.2D 880, 882." 
SHERMAN V. UNITED STATES, 356 U.S., AT 377 N. 7. 

NOR DOES IT SEEM PARTICULARLY DESIRABLE FOR THE LAW TO GRANT
COMPLETE IMMUNITY FROM PROSECUTION TO ONE WHO HIMSELF PLANNED TO COMMIT
A CRIME, AND THEN COMMITTED IT, SIMPLY BECAUSE GOVERNMENT UNDERCOVER
AGENTS SUBJECTED HIM TO INDUCEMENTS WHICH MIGHT HAVE SEDUCED A
HYPOTHETICAL INDIVIDUAL WHO WAS NOT SO PREDISPOSED.  WE ARE CONTENT TO
LEAVE THE MATTER WHERE IT WAS LEFT BY THE COURT IN SHERMAN: 

"THE FUNCTION OF LAW ENFORCEMENT IS THE PREVENTION OF CRIME AND THE
APPREHENSION OF CRIMINALS.  MANIFESTLY, THAT FUNCTION DOES NOT INCLUDE
THE MANUFACTURING OF CRIME.  CRIMINAL ACTIVITY IS SUCH THAT STEALTH AND
STRATEGY ARE NECESSARY WEAPONS IN THE ARSENAL OF THE POLICE OFFICER. 
HOWEVER, 'A DIFFERENT QUESTION IS PRESENTED WHEN THE CRIMINAL DESIGN
ORIGINATES WITH THE OFFICIALS OF THE GOVERNMENT, AND THEY IMPLANT IN
THE MIND OF AN INNOCENT PERSON THE DISPOSITION TO COMMIT THE ALLEGED
OFFENSE AND INDUCE ITS COMMISSION IN ORDER THAT THEY MAY PROSECUTE.'" 
ID., AT 372, QUOTING SORRELLS V. UNITED STATES, 287 U.S., AT 442. 

[[HC435'(ORIGINAL DOCUMENT PAGE 435)' 

SEVERAL DECISIONS OF THE UNITED STATES DISTRICT COURTS AND COURTS OF
APPEALS HAVE UNDOUBTEDLY GONE BEYOND THIS COURT'S OPINIONS IN SORRELLS
AND SHERMAN IN ORDER TO BAR PROSECUTIONS BECAUSE OF WHAT THEY THOUGHT
TO BE, FOR WANT OF A BETTER TERM, "OVERZEALOUS LAW ENFORCEMENT."  BUT
THE DEFENSE OF ENTRAPMENT ENUNCIATED IN THOSE OPINIONS WAS NOT INTENDED
TO GIVE THE FEDERAL JUDICIARY A "CHANCELLOR'S FOOT" VETO OVER LAW
ENFORCEMENT PRACTICES OF WHICH IT DID NOT APPROVE.  THE EXECUTION OF
THE FEDERAL LAWS UNDER OUR CONSTITUTION IS CONFIDED PRIMARILY TO THE
EXECUTIVE BRANCH OF THE GOVERNMENT, SUBJECT TO APPLICABLE
CONSTITUTIONAL AND STATUTORY LIMITATIONS AND TO JUDICIALLY FASHIONED
RULES TO ENFORCE THOSE LIMITATIONS.  WE THINK THAT THE DECISION OF THE
COURT OF APPEALS IN THIS CASE QUITE UNNECESSARILY INTRODUCES AN
UNMANAGEABLY SUBJECTIVE STANDARD WHICH IS CONTRARY TO THE HOLDINGS OF
THIS COURT IN SORRELLS AND SHERMAN. 

THOSE CASES ESTABLISH THAT ENTRAPMENT IS A RELATIVELY LIMITED
DEFENSE.  IT IS ROOTED NOT IN ANY AUTHORITY OF THE JUDICIAL BRANCH TO
DISMISS PROSECUTIONS FOR WHAT IT FEELS TO HAVE BEEN "OVERZEALOUS LAW
ENFORCEMENT," BUT INSTEAD IN THE NOTION THAT CONGRESS COULD NOT HAVE
INTENDED CRIMINAL PUNISHMENT FOR A DEFENDANT WHO HAS COMMITTED ALL THE
ELEMENTS OF A PRESCRIBED OFFENSE, BUT WAS INDUCED TO COMMIT THEM BY THE
GOVERNMENT. 

SORRELLS AND SHERMAN BOTH RECOGNIZE "THAT THE FACT THAT OFFICERS OR
EMPLOYEES OF THE GOVERNMENT MERELY AFFORD OPPORTUNITIES OR FACILITIES
FOR THE COMMISSION OF THE OFFENSE DOES NOT DEFEAT THE PROSECUTION,"
287 U.S., AT 441; 356 U.S., AT 372.  NOR WILL THE MERE FACT OF DECEIT
DEFEAT A PROSECUTION, SEE, E. G., LEWIS V. UNITED STATES, 385 U.S. 206,
208 - 209 (1966), FOR THERE ARE CIRCUMSTANCES WHEN THE USE OF DECEIT IS
THE ONLY PRACTICABLE LAW ENFORCEMENT TECHNIQUE AVAILABLE. 

[[HC436'(ORIGINAL DOCUMENT PAGE 436)'  IT IS ONLY WHEN THE
GOVERNMENT'S DECEPTION ACTUALLY IMPLANTS THE CRIMINAL DESIGN IN THE
MIND OF THE DEFENDANT THAT THE DEFENSE OF ENTRAPMENT COMES INTO PLAY. 

RESPONDENT'S CONCESSION IN THE COURT OF APPEALS THAT THE JURY
FINDING AS TO PREDISPOSITION WAS SUPPORTED BY THE EVIDENCE IS,
THEREFORE, FATAL TO HIS CLAIM OF ENTRAPMENT.  HE WAS AN ACTIVE
PARTICIPANT IN AN ILLEGAL DRUG MANUFACTURING ENTERPRISE WHICH BEGAN
BEFORE THE GOVERNMENT AGENT APPEARED ON THE SCENE, AND CONTINUED AFTER
THE GOVERNMENT AGENT HAD LEFT THE SCENE.  HE WAS, IN THE WORDS OF
SHERMAN, SUPRA, NOT AN "UNWARY INNOCENT" BUT AN "UNWARY CRIMINAL."  THE
COURT OF APPEALS WAS WRONG, WE BELIEVE, WHEN IT SOUGHT TO BROADEN THE
PRINCIPLE LAID DOWN IN SORRELLS AND SHERMAN.  ITS JUDGMENT IS THEREFORE

              REVERSED. 

/1/  JOHN CONNOLLY DID NOT APPEAR FOR TRIAL.  PATRICK CONNOLLY WAS
TRIED WITH THE RESPONDENT AND FOUND GUILTY OF ALL FIVE COUNTS AGAINST
HIM.  THE VALIDITY OF HIS CONVICTION IS NOT BEFORE US IN THIS
PROCEEDING. 

/2/  AT TRIAL PATRICK CONNOLLY ADMITTED MAKING THIS STATEMENT TO
AGENT SHAPIRO BUT ASSERTED THAT THE STATEMENT WAS NOT TRUE. 

/3/  AGENT SHAPIRO DID NOT OTHERWISE PARTICIPATE IN THE MANUFACTURE
OF THE DRUG OR DIRECT ANY OF THE WORK. 

/4/  THE DISTRICT JUDGE STATED THE GOVERNING LAW ON ENTRAPMENT AS
FOLLOWS:  "WHERE A PERSON ALREADY HAS THE WILLINGNESS AND THE READINESS
TO BREAK THE LAW, THE MERE FACT THAT THE GOVERNMENT AGENT PROVIDES WHAT
APPEARS TO BE A FAVORABLE OPPORTUNITY IS NOT ENTRAPMENT."  HE THEN
INSTRUCTED THE JURY TO ACQUIT RESPONDENT IF IT HAD A "REASONABLE DOUBT
WHETHER THE DEFENDANT HAD THE PREVIOUS INTENT OR PURPOSE TO COMMIT THE
OFFENSE . . . AND DID SO ONLY BECAUSE HE WAS INDUCED OR PERSUADED BY
SOME OFFICER OR AGENT OF THE GOVERNMENT."  NO EXCEPTION WAS TAKEN BY
RESPONDENT TO THIS INSTRUCTION. 

/5/  THE FIRST CASE TO RECOGNIZE AND SUSTAIN A CLAIM OF ENTRAPMENT
BY GOVERNMENT OFFICERS AS A DEFENSE WAS APPARENTLY WOO WAI V. UNITED
STATES, 223 F. 412 (CA9 1915). 

/6/  JUSTICES BRANDEIS AND STONE CONCURRED IN THIS ANALYSIS. 

/7/  JUSTICES DOUGLAS, HARLAN, AND BRENNAN SHARED THE VIEWS OF
ENTRAPMENT EXPRESSED IN THE FRANKFURTER OPINION. 

/8/  THE LANGUAGE QUOTED ABOVE FIRST APPEARED IN THE GOVERNMENT'S
BRIEF AT 32, BUT WAS SUBSEQUENTLY ADOPTED BY THE RESPONDENT.  BRIEF FOR
RESPONDENT 20 - 21. 

/9/  A BILL CURRENTLY BEFORE THE CONGRESS CONTEMPLATES AN EXPRESS
STATUTORY FORMULATION OF THE ENTRAPMENT DEFENSE.  S. 1, 93D CONG., 1ST
SESS., ^ 1 - 3B2 (1973). 

[[DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

A FEDERAL AGENT SUPPLIED THE ACCUSED WITH ONE CHEMICAL INGREDIENT OF
THE DRUG KNOWN AS METHAMPHETAMINE ("SPEED") WHICH THE ACCUSED
MANUFACTURED AND FOR WHICH ACT HE WAS SENTENCED TO PRISON.  HIS DEFENSE
WAS ENTRAPMENT, WHICH THE COURT OF APPEALS SUSTAINED AND WHICH THE
COURT TODAY DISALLOWS.  SINCE I HAVE AN OPPOSED VIEW OF ENTRAPMENT, I
DISSENT. 

MY VIEW IS THAT OF MR. JUSTICE BRANDEIS EXPRESSED IN CASEY V. UNITED
STATES, 276 U.S. 413, 421 (DISSENT), THAT OF MR. JUSTICE FRANKFURTER
STATED IN SHERMAN V. UNITED STATES, 356 U.S. 369, 378 (CONCURRING IN
RESULT), AND THAT OF MR. JUSTICE ROBERTS CONTAINED IN SORRELLS V.
UNITED STATES, 287 U.S. 435, 453 (CONCURRENCE). 

IN MY VIEW, THE FACT THAT THE CHEMICAL INGREDIENT SUPPLIED BY THE
FEDERAL AGENT MIGHT HAVE BEEN OBTAINED FROM OTHER SOURCES IS QUITE
IRRELEVANT.  SUPPLYING THE CHEMICAL INGREDIENT USED IN THE MANUFACTURE
OF THIS BATCH OF "SPEED" MADE THE UNITED STATES AN ACTIVE PARTICIPANT
IN THE UNLAWFUL ACTIVITY.  AS STATED BY MR. JUSTICE BRANDEIS,
DISSENTING IN CASEY V. UNITED STATES, SUPRA, AT 423: 

"I AM AWARE THAT COURTS -- MISTAKING RELATIVE SOCIAL VALUES AND

  FORGETTING THAT A DESIRABLE END CANNOT JUSTIFY FOUL MEANS --

  HAVE, IN THEIR ZEAL TO PUNISH, SANCTIONED THE USE OF EVIDENCE

  OBTAINED THROUGH CRIMINAL VIOLATION OF PROPERTY AND PERSONAL

  RIGHTS OR BY OTHER PRACTICES OF DETECTIVES EVEN MORE REVOLTING. 

  BUT THE OBJECTION HERE IS OF A DIFFERENT NATURE.  IT DOES NOT

  REST MERELY UPON THE CHARACTER OF THE EVIDENCE OR UPON THE FACT

  THAT THE EVIDENCE WAS ILLEGALLY OBTAINED.  THE OBSTACLE TO THE

  PROSECUTION LIES IN THE FACT THAT THE ALLEGED CRIME WAS

  INSTIGATED BY OFFICERS OF THE GOVERNMENT; THAT THE ACT FOR WHICH

THE GOVERNMENT SEEKS TO PUNISH THE DEFENDANT IS THE FRUIT OF

  THEIR CRIMINAL CONSPIRACY TO INDUCE ITS COMMISSION.  THE

  GOVERNMENT MAY SET DECOYS TO ENTRAP CRIMINALS.  BUT IT MAY NOT

  PROVOKE OR CREATE A CRIME AND THEN PUNISH THE CRIMINAL, ITS

  CREATURE." 

MR. JUSTICE FRANKFURTER STATED THE SAME PHILOSOPHY IN SHERMAN V.
UNITED STATES, SUPRA, AT 382 - 383:  "NO MATTER WHAT THE DEFENDANT'S
PAST RECORD AND PRESENT INCLINATIONS TO CRIMINALTIY, OR THE DEPTHS TO
WHICH HE HAS SUNK IN THE ESTIMATION OF SOCIETY, CERTAIN POLICE CONDUCT
TO ENSNARE HIM INTO FURTHER CRIME IS NOT TO BE TOLERATED BY AN ADVANCED
SOCIETY."  AND HE ADDED:  "THE POWER OF GOVERNMENT IS ABUSED AND
DIRECTED TO AN END FOR WHICH IT WAS NOT CONSTITUTED WHEN EMPLOYED TO
PROMOTE RATHER THAN DETECT CRIME . . ."  ID., AT 384. 

MR. JUSTICE ROBERTS IN SORRELLS PUT THE IDEA IN THE FOLLOWING
WORDS: 

     "THE APPLICABLE PRINCIPLE IS THAT COURTS MUST BE CLOSED TO THE

  TRIAL OF A CRIME INSTIGATED BY THE GOVERNMENT'S OWN AGENTS.  NO

  OTHER ISSUE, NO COMPARISON OF EQUITIES AS BETWEEN THE GUILTY

  OFFICIAL AND THE GUILTY DEFENDANT, HAS ANY PLACE IN THE

  ENFORCEMENT OF THIS OVERRULING PRINCIPLE OF PUBLIC POLICY."  287

  U.S., AT 459. 

MAY THE FEDERAL AGENT SUPPLY THE COUNTERFEITER WITH THE KIND OF
PAPER OR INK THAT HE NEEDS IN ORDER TO GET A QUICK AND EASY ARREST? 
THE COURT OF APPEALS IN GREENE V. UNITED STATES, 454 F.2D 783, SPEAKING
THROUGH JUDGES HAMLEY AND HUFSTEDLER, SAID "NO" IN A CASE WHERE THE
FEDERAL AGENT TREATED THE SUSPECTS "AS PARTNERS" WITH HIM, OFFERED TO
SUPPLY THEM WITH A STILL, A STILL SITE, STILL EQUIPMENT, AND AN
OPERATOR AND SUPPLIED THEM WITH SUGAR.  ID., AT 786.     THE COURT OF
APPEALS IN UNITED STATES V. BUENO, 447 F.2D 903, SPEAKING THROUGH
JUDGES RONEY, COLEMAN, AND SIMPSON, HELD THAT WHERE AN INFORMER
PURCHASED HEROIN FOR THE ACCUSED WHO IN TURN SOLD IT TO A FEDERAL
AGENT, THERE WAS ENTRAPMENT BECAUSE THE SALE WAS MADE "THROUGH THE
CREATIVE ACTIVITY OF THE GOVERNMENT."  ID., AT 906. 

IN UNITED STATES V. CHISUM, 312 F. SUPP. 1307, THE FEDERAL AGENT
SUPPLIED THE ACCUSED WITH THE COUNTERFEIT MONEY, THE RECEIPT OF WHICH
WAS THE CHARGE AGAINST HIM.  JUDGE FERGUSON SUSTAINED THE DEFENSE OF
ENTRAPMENT SAYING, "WHEN THE GOVERNMENT SUPPLIES THE CONTRABAND, THE
RECEIPT OF WHICH IS ILLEGAL, THE GOVERNMENT CANNOT BE PERMITTED TO
PUNISH THE ONE RECEIVING IT."  ID., AT 1312. 

THE COURT OF APPEALS IN THE INSTANT CASE RELIED UPON THIS LINE OF
DECISIONS IN SUSTAINING THE DEFENSE OF ENTRAPMENT, 459 F.2D 671.  IN
DOING SO IT TOOK THE VIEW THAT THE "PROSTITUTION OF THE CRIMINAL LAW,"
AS MR. JUSTICE ROBERTS DESCRIBED IT IN SORRELLS, 287 U.S., AT 457, WAS
THE EVIL AT WHICH THE DEFENSE OF ENTRAPMENT IS AIMED. 

FEDERAL AGENTS PLAY A DEBASED ROLE WHEN THEY BECOME THE INSTIGATORS
OF THE CRIME, OR PARTNERS IN ITS COMMISSION, OR THE CREATIVE BRAIN
BEHIND THE ILLEGAL SCHEME.  THAT IS WHAT THE FEDERAL AGENT DID HERE
WHEN HE FURNISHED THE ACCUSED WITH ONE OF THE CHEMICAL INGREDIENTS
NEEDED TO MANUFACTURE THE UNLAWFUL DRUG. 

[[DOP 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

IT IS COMMON GROUND THAT "(THE CONDUCT WITH WHICH THE DEFENSE OF
ENTRAPMENT IS CONCERNED IS THE MANUFACTURING OF CRIME BY LAW
ENFORCEMENT OFFICIALS AND THEIR AGENTS."  LOPEZ V. UNITED STATES, 373
U.S. 427, 434 (1963).  FOR THE GOVERNMENT CANNOT BE PERMITTED TO
INSTIGATE THE COMMISSION OF A CRIMINAL OFFENSE IN ORDER TO PROSECUTE
SOMEONE FOR COMMITTING IT.  SHERMAN V. UNITED STATES, 356 U.S. 369, 372
(1958).  AS MR. JUSTICE BRANDEIS PUT IT, THE GOVERNMENT "MAY NOT
PROVOKE OR CREATE A CRIME AND THEN PUNISH THE CRIMINAL, ITS CREATURE." 
CASEY V. UNITED STATES, 276 U.S. 413, 423 (1928) (DISSENTING OPINION). 
IT IS TO PREVENT THIS SITUATION FROM OCCURRING IN THE ADMINISTRATION OF
FEDERAL CRIMINAL JUSTICE THAT THE DEFENSE OF ENTRAPMENT EXISTS. 
SORRELLS V. UNITED STATES, 287 U.S. 435 (1932); SHERMAN V. UNITED
STATES, SUPRA.  CF. MASCIALE V. UNITED STATES, 356 U.S. 386 (1958);
LOPEZ V. UNITED STATES, SUPRA.  BUT THE COURT HAS BEEN SHARPLY DIVIDED
AS TO THE PROPER BASIS, SCOPE, AND FOCUS OF THE ENTRAPMENT DEFENSE, AND
AS TO WHETHER, IN THE ABSENCE OF A CONCLUSIVE SHOWING, THE ISSUE OF
ENTRAPMENT IS FOR THE JUDGE OR THE JURY TO DETERMINE. 

 I 

IN SORRELLS V. UNITED STATES, SUPRA, AND SHERMAN V. UNITED STATES,
SUPRA, THE COURT TOOK WHAT MIGHT BE CALLED A "SUBJECTIVE" APPROACH TO
THE DEFENSE OF ENTRAPMENT.  IN THAT VIEW, THE DEFENSE IS PREDICATED ON
AN UNEXPRESSED INTENT OF CONGRESS TO EXCLUDE FROM ITS CRIMINAL STATUTES
THE PROSECTUION AND CONVICTION OF PERSONS, "OTHERWISE INNOCENT,"  WHO
HAVE BEEN LURED TO THE COMMISSION OF THE PROHIBITED ACT THROUGH THE
GOVERNMENT'S INSTIGATION.  SORRELLS V. UNITED STATES, SUPRA, AT 448. 
THE KEY PHRASE IN THIS FORMULATION IS "OTHERWISE INNOCENT,"  FOR THE
ENTRAPMENT DEFENSE IS AVAILABLE UNDER THIS APPROACH ONLY TO THOSE WHO
WOULD NOT HAVE COMMITTED THE CRIME BUT FOR THE GOVERNMENT'S
INDUCEMENTS.  THUS, THE SUBJECTIVE APPROACH FOCUSES ON THE CONDUCT AND
PROPENSITIES OF THE PARTICULAR DEFENDANT IN EACH INDIVIDUAL CASE:  IF
HE IS "OTHERWISE INNOCENT," HE MAY AVAIL HIMSELF OF THE DEFENSE; BUT IF
THE "CRIMINAL DESIGN" ORIGINATED WITH HIM, THEN -- REGARDLESS OF THE
NATURE AND EXTENT OF THE GOVERNMENT'S PARTICIPATION -- THERE HAS BEEN
NO ENTRAPMENT.  ID., AT 451.  AND, IN THE ABSENCE OF A CONCLUSIVE
SHOWING ONE WAY OR THE OTHER, THE QUESTION OF THE DEFENDANT'S
"PREDISPOSITION" TO THE CRIME IS A QUESTION OF FACT FOR THE JURY.  THE
COURT TODAY ADHERES TO THIS APPROACH. 

THE CONCURRING OPINION OF MR. JUSTICE ROBERTS, JOINED BY JUSTICES
BRANDEIS AND STONE, IN THE SORRELLS CASE, AND THAT OF MR. JUSTICE
FRANKFURTER, JOINED BY JUSTICES DOUGLAS, HARLAN, AND BRENNAN, IN THE
SHERMAN CASE, TOOK A DIFFERENT VIEW OF THE ENTRAPMENT DEFENSE.  IN
THEIR CONCEPT, THE DEFENSE IS NOT GROUNDED ON SOME UNEXPRESSED INTENT
OF CONGRESS TO EXCLUDE FROM PUNISHMENT UNDER ITS STATUTES THOSE
OTHERWISE INNOCENT PERSONS TEMPTED INTO CRIME BY THE GOVERNMENT, BUT
RATHER ON THE BELIEF THAT "THE METHODS EMPLOYED ON BEHALF OF THE
GOVERNMENT TO BRING ABOUT CONVICTION CANNOT BE COUNTENANCED."  SHERMAN
V. UNITED STATES, SUPRA, AT 380.  THUS, THE FOCUS OF THIS APPROACH IS
NOT ON THE PROPENSITIES AND PREDISPOSITION OF A SPECFIC DEFENDANT, BUT
ON "WHETHER THE POLICE CONDUCT REVEALED IN THE PARTICULAR CASE FALLS
BELOW STANDARDS, TO WHICH COMMON FEELINGS RESPOND, FOR THE PROPER USE
OF GOVERNMENTAL POWER."  ID., AT 382.  PHRASED ANOTHER WAY, THE
QUESTION IS WHETHER -- REGARDLESS OF THE PREDISPOSITION TO CRIME OF THE
PARTICULAR DEFENDANT INVOLVED -- THE GOVERNMENTAL AGENTS HAVE ACTED IN
SUCH A WAY AS IS LIKELY TO INSTIGATE OR CREATE A CRIMINAL OFFENSE. 
UNDER THIS APPROACH, THE DETERMINATION OF THE LAWFULNESS OF THE
GOVERNMENT'S CONDUCT MUST BE MADE -- AS IT IS ON ALL QUESTIONS
INVOLVING THE LEGALITY OF LAW ENFORCEMENT METHODS -- BY THE TRIAL
JUDGE, NOT THE JURY. 

IN MY VIEW, THIS OBJECTIVE APPROACH TO ENTRAPMENT ADVANCED BY THE
ROBERTS OPINION IN SORRELLS AND THE FRANKFURTER OPINION IN SHERMAN IS
THE ONLY ONE TRULY CONSISTENT WITH THE UNDERLYING RATIONALE OF THE
DEFENSE.  /1/  INDEED, THE VERY BASIS OF THE ENTRAPMENT DEFENSE ITSELF
DEMANDS ADHERENCE TO AN APPROACH THAT FOCUSES ON THE CONDUCT OF THE
GOVERNMENTAL AGENTS, RATHER THAN ON WHETHER THE DEFENDANT WAS
"PREDISPOSED" OR "OTHERWISE INNOCENT."  I FIND IT IMPOSSIBLE TO BELIEVE
THAT THE PURPOSE OF THE DEFENSE IS TO EFFECTUATE SOME UNEXPRESSED
CONGRESSIONAL INTENT TO EXCLUDE FROM ITS CRIMINAL STATUTES PERSONS WHO
COMMITTED A PROHIBITED ACT, BUT WOULD NOT HAVE DONE SO EXCEPT FOR THE
GOVERNMENT'S INDUCEMENTS.  FOR, AS MR. JUSTICE FRANKFURTER PUT IT, "THE
ONLY LEGISLATIVE INTENTION THAT CAN WITH ANY SHOW OF REASON BE
EXTRACTED FROM THE STAUTE IS THE INTENTION TO MAKE CRIMINAL PRECISELY
THE CONDUCT IN WHICH THE DEFENDANT HAS ENGAGED."  SHERMAN V. UNITED
STATES, SUPRA, AT 379.  SEE ALSO SORRELLS V. UNITED STATES, SUPRA, AT
456 (ROBERTS, J., CONCURRING).  SINCE, BY DEFINITION, THE ENTRAPMENT
DEFENSE CANNOT ARISE UNLESS THE DEFENDANT ACTUALLY COMMITTED THE
PROSCRIBED ACT, THAT DEFENDANT IS MANIFESTLY COVERED BY THE TERMS OF
THE CRIMINAL STATUTE INVOLVED. 

FURTHERMORE, TO SAY THAT SUCH A DEFENDANT IS "OTHERWISE INNOCENT"
OR NOT "PREDISPOSED" TO COMMIT THE CRIME IS MISLEADING, AT BEST.  THE
VERY FACT THAT HE HAS COMMITTED AN ACT THAT CONGRESS HAS DETERMINED TO
BE ILLEGAL DEMONSTRATES CONCLUSIVELY THAT HE IS NOT INNOCENT OF THE
OFFENSE.  HE MAY NOT HAVE ORIGINATED THE PRECISE PLAN OR THE PRECISE
DETAILS, BUT HE WAS "PREDISPOED" IN THE SENSE THAT HE HAS PROVED TO BE
QUITE CAPABLE OF COMMITTING THE CRIME.  THAT HE WAS INDUCED, PROVOKED,
OR TEMPTED TO DO SO BY GOVERNMENT AGENTS DOES NOT MAKE HIM ANY MORE
INNOCENT OR ANY LESS PREDISPOSED THAN HE WOULD BE IF HE HAD BEEN
INDUCED, PROVOKED, OR TEMPTED BY A PRIVATE PERSON -- WHICH, OF COURSE,
WOULD NOT ENTITLE HIM TO CRY "ENTRAPMENT."  SINCE THE ONLY DIFFERENCE
BETWEEN THESE SITUATIONS IS THE IDENTIFY OF THE TEMPTOR, IT FOLLOWS
THAT THE SIGNIFICANT FOCUS MUST BE ON THE CONDUCT OF THE GOVERNMENT
AGENTS, AND NOT ON THE PREDISPOSITION OF THE DEFENDANT. 

THE PURPOSE OF THE ENTRAPMENT DEFENSE, THEN, CANNOT BE TO PROTECT
PERSONS WHO ARE "OTHERWISE INNOCENT."  RATHER, IT MUST BE TO PROHIBIT
UNLAWFUL GOVERNMENTAL ACTIVITY IN INSTIGATING CRIME.  AS MR. JUSTICE
BRANDEIS STATED IN CASEY V. UNITED STATES, SUPRA, AT 425:  "THIS
PROSECUTION SHOULD BE STOPPED, NOT BECAUSE SOME RIGHT OF CASEY'S HAS
BEEN DENIED, BUT IN ORDER TO PROTECT THE GOVERNMENT.  TO PROTECT IT
FROM ILLEGAL CONDUCT OF ITS OFFICERS.  TO PRESERVE THE PURITY OF ITS
COURTS."  CF. OLMSTEAD V. UNITED STATES, 277 U.S. 438, 470 (1928)
(HOLMES, J., DISSENTING); ID., AT 485 (BRANDEIS J., DISSENTING).  IF
THAT IS SO, THEN WHETHER THE PARTICULAR DEFENDANT WAS "PREDISPOSED" OR
"OTHERWISE INNOCENT" IS IRRELEVANT; AND THE IMPORTANT QUESTION BECOMES
WHETHER THE GOVERNMENT'S CONDUCT IN INDUCING THE CRIME WAS BEYOND
JUDICIAL TOLERATION. 

MOREOVER, A TEST THAT MAKES THE ENTRAPMENT DEFENSE DEPEND ON WHETHER
THE DEFENDANT HAD THE REQUISITE PREDISPOSITION PERMITS THE INTRODUCTION
INTO EVIDENCE OF ALL KINDS OF HEARSAY, SUSPICION, AND RUMOR -- ALL OF
WHICH WOULD BE INADMISSIBLE IN ANY OBTHER CONTEXT -- IN ORDER TO PROVE
THE DEFENDANT'S PREDISPOSITION.  IT ALLOWS THE PROSECTUION, IN OFFERING
SUCH PROOF, TO RELY ON THE DEFENDANT'S BAD REPUTATION OR PAST CRIMINAL
ACTIVITIES, INCLUDING EVEN RUMORED ACTIVITIES OF WHICH THE PROSECUTION
MAY HAVE INSUFFICIENT EVIDENCE TO OBTAIN AN INDICTMENT, AND TO PRESENT
THE AGENT'S SUSPICIONS AS TO WHY THEY CHOSE TO TEMPT THIS DEFENDANT. 
THIS SORT OF EVIDENCE IS NOT ONLY UNRELIABLE, AS THE HEARSAY RULE
RECOGNIZES; BUT IT IS ALSO HIGHLY PREJUDICIAL, ESPECIALLY IF THE MATTER
IS SUBMITTED TO THE JURY, FOR, DESPITE INSTRUCTIONS TO THE CONTRARY,
THE JURY MAY WELL CONSIDER SUCH EVIDENCE AS PROBATIVE NOT SIMPLY OF THE
DEFENDANT'S PREDISPOSITION, BUT OF HIS GUILT OF THE OFFENSE WITH WHICH
HE STANDS CHARGED. 

MORE FUNDAMENTALLY, FOCUSING ON THE DEFENDANT'S INNOCENCE OR
PREDISPOSITION HAS THE DIRECT EFFECT OF MAKING WHAT IS PERMISSIBLE OR
IMPERMISSIBLE POLICE CONDUCT DEPEND UPON THE PAST RECORD AND
PROPENSITIES OF THE PARTICULAR DEFENDANT INVOLVED.  STATED ANOTHER WAY,
THIS SUBJECTIVE TEST MEANS THAT THE GOVERNMENT IS PERMITTED TO ENTRAP A
PERSON WITH A CRIMINAL RECORD OR BAD REPUTATION, AND THEN TO PROSECUTE
HIM FOR THE MANUFACTURED CRIME, CONFIDENT THAT HIS RECORD OR REPUTATION
ITSELF WILL BE ENOUGH TO SHOW THAT HE WAS PREDISPOSED TO COMMIT THE
OFFENSE ANYWAY. 

YET, IN THE WORDS OF MR. JUSTICE ROBERTS: 

"WHATEVER MAY BE THE DEMERITS OF THE DEFENDANT OR HIS PREVIOUS

  INFRACTIONS OF LAW THESE WILL NOT JUSTIFY THE INSTIGATION AND

  CREATION OF A NEW CRIME, AS A MEANS TO REACH HIM AND PUNISH HIM

  FOR HIS PAST MISDEMEANORS.  . . TO SAY THAT SUCH CONDUCT BY AN

  OFFICIAL OF GOVERNMENT IS CONDONED AND RENDERED INNOCUOUS BY THE

  FACT THAT THE DEFENDANT HAD A BAD REPUTATION OR HAD PREVIOUSLY

  TRANSGRESSED IS WHOLLY TO DISREGARD THE REASON FOR REFUSING THE

  PROCESSES OF THE COURT TO CONSUMMATE AN ABHORRENT TRANSACTION." 

SORRELLS V. UNITED STATES, SUPRA, AT 458 - 459. 

AND AS MR. JUSTICE FRANKFURTER POINTED OUT: 

"PERMISSIBLE POLICE ACTIVITY DOES NOT VARY ACCORDING TO THE
PARTICULAR DEFENDANT CONCERNED; SURELY IF TWO SUSPECTS HAVE BEEN
SOLICITED AT THE SAME TIME IN THE SAME MANNER, ONE SHOULD NOT GO TO
JAIL SIMPLY BECAUSE HE HAS BEEN CONVICTED BEFORE AND IS SAID TO HAVE A
CRIMINAL DISPOSITION.  NO MORE DOES IT VARY ACCORDING TO THE
SUSPICIONS, REASONABLE OR UNREASONABLE, OF THE POLICE CONCERNIGN THE
DEFENDANT'S ACTIVITIES."  SHERMAN V. UNITED STATES, SUPRA, AT 383.  IN
MY VIEW, A PERSON'S ALLEGED "PREDISPOSITION" TO CRIME SHOULD NOT EXPOSE
HIM TO GOVERNMENT PARTICIPATION IN THE CRIMINAL TRANSACTION THAT WOULD
BE OTHERWISE UNLAWFUL.  /2/ 

THIS DOES NOT MEAN, OF COURSE, THAT THE GOVERNMENT'S USE OF
UNDERCOVER ACTIVITY, STRATEGY, OR DECEPTION IS NECESSARILY UNLAWFUL. 
LEWIS V. UNITED STATE, 385 U.S. 206, 208 - 209 (1966).  INDEED, MANY
CRIMES, ESPECIALLY SO-CALLED VICTIMLESS CRIMES, COULD NOT OTHERWISE BE
DETECTED.  THUS, GOVERNMENT AGENTS MAY ENGAGE IN CONDUCT THAT IS
LIKELY, WHEN OBJECTIVELY CONSIDERED, TO AFFORD A PERSON READY AND
WILLING TO COMMIT THE CRIME AN OPPORTUNITY TO DO SO.  OSBORN V. UNITED
STATES, 385 U.S. 323, 331 - 332 (1966).  SEE ALSO SHERMAN V. UNITED
STATES, SUPRA, AT 383 - 384 (FRANKFURTER, J., CONCURRING). 

BUT WHEN THE AGENTS' INVOLVEMENT IN CRIMINAL ACTIVITIES GOES BEYOND
THE MERE OFFERING OF SUCH AN OPPORTUNITY, AND WHEN THEIR CONDUCT IS OF
A KIND THAT COULD INDUCE OR INSTIGATE THE COMMISSION OF A CRIME BY ONE
NOT READY AND WILLING TO COMMIT IT, THEN --REGARDLESS OF THE CHARACTER
OR PROPENSITIES OF THE PARTICULAR PERSON INDUCED -- I THINK ENTRAPMENT
HAS OCCURRED.  FOR IN THAT SITUATION, THE GOVERNMENT HAS ENGAGED IN THE
IMPERMISSIBLE MANUFACTURING OF CRIME, AND THE FEDERAL COURTS SHOULD BAR
THE PROSECUTION IN ORDER TO PRESERVE THE INSTITUTIONAL INTEGRITY OF THE
SYSTEM OF FEDERAL CRIMINAL JUSTICE.  /3/

        II 

IN THE CASE BEFORE US, I THINK THAT THE DISTRICT COURT ERRED IN
SUBMITTING THE ISSUE OF ENTRAPMENT TO THE JURY, WITH INSTRUCTIONS TO
ACQUIT ONLY IF IT HAD A REASONABLE DOUBT AS TO THE RESPONDENT'S
PREDISPOSITION TO COMMITTING THE CRIME.  SINCE, UNDER THE OBJECTIVE
TEST OF ENTRAPMENT, PREDISPOSITION IS IRRELEVANT AND THE ISSUE IS TO BE
DECIDED BY THE TRIAL JUDGE, THE COURT OF APPEALS, I BELIEVE, WOULD HAVE
BEEN JUSTIFIED IN REVERSING THE CONVICTION ON THIS BASIS ALONE.  BUT
SINCE THE APPELLATE COURT DID NOT REMAND FOR CONSIDERATION OF THE ISSUE
BY THE DISTRICT JUDGE UNDER AN OBJECTIVE STANDARD, BUT RATHER FOUND
ENTRAPMENT AS A MATTER OF LAW AND DIRECTED THAT THE INDICTMENT BE
DISMISSED, WE MUST REACH THE MERITS OF THE RESPONDENT'S ENTRAPMENT
DEFENSE. 

SINCE, IN MY VIEW, IT DOES NOT MATTER WHETHER THE RESPONDENT WAS
PREDISPOSED TO COMMIT THE OFFENSE OF WHICH HE WAS CONVICTED, THE FOCUS
MUST BE, RATHER, ON THE CONDUCT OF THE UNDERCOVER GOVERNMENT AGENT. 
WHAT THE AGENT DID HERE WAS TO MEET WITH A GROUP OF SUSPECTED PRODUCERS
OF METHAMPHETAMINE, INCLUDING THE RESPONDENT; TO REQUEST THE DRUG; TO
OFFER TO SUPPLY THE CHEMICAL PHENYL-2-PROPANONE IN EXCHANGE FOR ONE
HALF OF THE METHAMPHETAMINE TO BE MANUFACTURED THEREWITH; AND, WHEN
THAT OFFER WAS ACCEPTED, TO PROVIDE THE NEEDED CHEMICAL INGREDIENT, AND
TO PURCHASE SOME OF THE DRUG FROM THE RESPONDENT.     IT IS UNDISPUTED
THAT PHENYL-2-PROPANONE IS AN ESSENTIAL INGREDIENT IN THE MANUFACTURE
OF METHAMPHETAMINE; THAT IT IS NOT USED FOR ANY OTHER PURPOSE; AND
THAT, WHILE ITS SALE IS NOT ILLEGAL, IT IS DIFFICULT TO OBTAIN, BECAUSE
A MANUFACTURER'S LICENSE IS NEEDED TO PURCHASE IT, AND BECAUSE MANY
SUPPLIERS, AT THE REQUEST OF THE FEDERAL BUREAU OF NARCOTICS AND
DANGEROUS DRUGS, DO NOT SELL IT AT ALL.  IT IS ALSO UNDISPUTED THAT THE
METHAMPHETAMINE WHICH THE RESPONDENT WAS PROSECUTED FOR MANUFACTURING
AND SELLING WAS ALL PRODUCED ON DECEMBER 10, 1969, AND THAT ALL THE
PHENYL-2-PROPANONE USED IN THE MANUFACTURE OF THAT BATCH OF THE DRUG
WAS PROVIDED BY THE GOVERNMENT AGENT.  IN THESE CIRCUMSTANCES, THE
AGENT'S UNDERTAKING TO SUPPLY THIS INGREDIENT TO THE RESPONDENT, THUS
MAKING IT POSSIBLE FOR THE GOVERNMENT TO PROSECUTE HIM FOR
MANUFACTURING AN ILLICIT DRUG WITH IT, WAS, I THINK, PRECISELY THE TYPE
OF GOVERNMENTAL CONDUCT THAT THE ENTRAPMENT DEFENSE IS MEANT TO
PREVENT. 

ALTHOUGH THE COURT OF APPEALS FOUND THAT THE PHENYL-2-PROPANONE
COULD NOT HAVE BEEN OBTAINED WITHOUT THE AGENT'S INTERVENTION -- THAT
"THERE COULD NOT HAVE BEEN THE MANUFACTURE, DELIVERY, OR SALE OF THE
ILLICIT DRUG HAD IT NOT BEEN FOR THE GOVERNMENT'S SUPPLY OF ONE OF THE
ESSENTIAL INGREDIENTS,"  459 F.2D 671, 672 -- THE COURT TODAY REJECTS
THIS FINDING AS CONTRADICTED BY THE FACTS REVEALED AT TRIAL.  THE
RECORD, AS THE COURT STATES, DISCLOSES THAT ONE OF THE RESPONDENT'S
ACCOMPLICES, THOUGH NOT THE RESPONDENT HIMSELF, HAD OBTAINED PHENYL-2
PROPANONE FROM INDEPENDENT SOURCES BOTH BEFORE AND AFTER RECEIVING THE
AGENT'S SUPPLY, AND HAD USED IT IN THE PRODUCTION OF METHAMPHETAMINE. 
THIS DEMONSTRATES, IT IS SAID, THAT THE CHEMICAL WAS OBTAINABLE OTHER
THAN THROUGH THE GOVERNMENT AGENT; AND HENCE THE AGENT'S FURNISHING IT
FOR THE PRODUCTION OF THE METHAMPHETAMINE INVOLVED IN THIS PROSECUTION
DID NO MORE THAN AFFORD AN OPPORTUNITY FOR ITS PRODUCTION TO ONE READY
AND WILLING TO PRODUCE IT.  CF. OSBORN V. UNITED STATES, SUPRA, AT 331
332.  THUS, THE ARGUMENT SEEMS TO BE, THERE WAS NO ENTRAPMENT HERE,
ANY MORE THAN THERE WOULD HAVE BEEN IF THE AGENT HAD FURNISHED COMMON
TABLE SALT, HAD THAT BEEN NECESSARY TO THE DRUG'S PRODUCTION. 

IT CANNOT BE DOUBTED THAT IF PHENYL-2-PROPANONE HAD BEEN WHOLLY
UNOBTAINABLE FROM OTHER SOURCES, THE AGENT'S UNDERCOVER OFFER TO SUPPLY
IT TO THE RESPONDENT IN RETURN FOR PART OF THE ILLICIT METHAMPHETAMINE
PRODUCED THEREWITH -- AN OFFER INITIATED AND CARRIED OUT BY THE AGENT
FOR THE PURPOSE OF PROSECUTING THE RESPONDENT FOR PRODUCING
METHAMPHETAMINE -- WOULD BE PRECISELY THE TYPE OF GOVERNMENTAL CONDUCT
THAT CONSTITUTES ENTRAPMENT UNDER ANY DEFINITION.  FOR THE AGENT'S
CONDUCT IN THAT SITUATION WOULD MAKE POSSIBLE THE COMMISSION OF AN
OTHERWISE TOTALLY IMPOSSIBLE CRIME, AND, I SHOULD SUPPOSE, WOULD THUS
BE A TEXTBOOK EXAMPLE OF INSTIGATING THE COMMISSION OF A CRIMINAL
OFFENSE IN ORDER TO PROSECUTE SOMEONE FOR COMMITTING IT. 

BUT ASSUMING IN THIS CASE THAT THE PHENYL-2-PROPANONE WAS OBTAINABLE
THROUGH INDEPENDENT SOURCES, THE FACT REMAINS THAT THAT USED FOR THE
PARTICULAR BATCH OF METHAMPHETAMINE INVOLVED IN ALL THREE COUNTS OF THE
INDICTMENT WITH WHICH THE RESPONDENT WAS CHARGED -- I.E., THAT PRODUCED
ON DECEMBER 10, 1969 -- WAS SUPPLIED BY THE GOVERNMENT.  THIS ESSENTIAL
INGREDIENT WAS INDISPUTABLY DIFFICULT TO OBTAIN, AND YET WHAT WAS USED
IN COMMITTING THE OFFENSES OF WHICH THE RESPONDENT WAS CONVICTED WAS
OFFERED TO THE RESPONDENT BY THE GOVERNMENT AGENT, ON THE AGENT'S OWN
INITIATIVE, AND WAS READILY SUPPLIED TO THE RESPONDENT IN NEEDED
AMOUNTS.  IF THE CHEMICAL WAS SO EASILY AVAILABLE ELSEWHERE, THEN WHY
DID NOT THE AGENT SIMPLY WAIT UNTIL THE RESPONDENT HAD HIMSELF OBTAINED
THE INGREDIENTS AND PRODUCED THE DRUG, AND THEN BUY IT FROM HIM?  THE
VERY FACT THAT THE AGENT FELT IT INCUMBENT UPON HIM TO OFFER TO SUPPLY
PHENYL-2-PROPANONE IN RETURN FOR THE DRUG CASTS CONSIDERABLE DOUBT ON
THE THEORY THAT THE CHEMICAL COULD EASILY HAVE BEEN PROCURED WITHOUT
THE AGENT'S INTERVENTION, AND THAT THEREFORE THE AGENT MERELY AFFORDED
AN OPPORTUNITY FOR THE COMMISSION OF A CRIMINAL OFFENSE. 

IN THIS CASE, THE CHEMICAL INGREDIENT WAS AVAILABLE ONLY TO LICENSED
PERSONS, AND THE GOVERNMENT ITSELF HAD REQUESTED SUPPLIERS NOT TO SELL
THAT INGREDIENT EVEN TO PEOPLE WITH A LICENSE.  YET THE GOVERNMENT
AGENT READILY OFFERED, AND SUPPLIED, THAT INGREDIENT TO AN UNLICENSED
PERSON AND ASKED HIM TO MAKE A CERTAIN ILLEGAL DRUG WITH IT.  THE
GOVERNMENT THEN PROSECUTED THAT PERSON FOR MAKING THE DRUG PRODUCED
WITH THE VERY INGREDIENT WHICH ITS AGENT HAD SO HELPFULLY SUPPLIED. 
THIS STRIKES ME AS THE VERY PATTERN OF CONDUCT THAT SHOULD BE HELD TO
CONSTITUTE ENTRAPMENT AS A MATTER OF LAW.  /4/ 

IT IS THE GOVERNMENT'S DUTY TO PREVENT CRIME, NOT TO PROMOTE IT.
HERE, THE GOVERNMENT'S AGENT ASKED THAT THE ILLEGAL DRUG BE PRODUCED
FOR HIM, SOLVED HIS QUARRY'S PRACTICAL PROBLEMS WITH THE ASSURANCE THAT
HE COULD PROVIDE THE ONE ESSENTIAL INGREDIENT THAT WAS DIFFICULT TO
OBTAIN, FURNISHED THAT ELEMENT AS HE HAD PROMISED, AND BOUGHT THE
FINISHED PRODUCT FROM THE RESPONDENT -- ALL SO THAT THE RESPONDENT
COULD BE PROSECUTED FOR PRODUCING AND SELLING THE VERY DRUG FOR WHICH
THE AGENT HAD ASKED AND FOR WHICH HE HAD PROVIDED THE NECESSARY
COMPONENT.  UNDER THE OBJECTIVE APPROACH THAT I WOULD FOLLOW, THIS
RESPONDENT WAS ENTRAPPED, REGARDLESS OF HIS PREDISPOSITION OF
"INNOCENCE." 

IN THE WORDS OF MR. JUSTICE ROBERTS: 

     "THE APPLICABLE PRINCIPLE IS THAT COURTS MUST BE CLOSED TO THE

  TRIAL OF A CRIME INSTIGATED BY THE GOVERNMENT'S OWN AGENTS.  NO

  OTHER ISSUE, NO COMPARISON OF EQUITIES AS BETWEEN THE GUILTY

  OFFICIAL AND THE GUILTY DEFENDANT, HAS ANY PLACE IN THE

  ENFORCEMENT OF THIS OVERRULING PRINCIPLE OF PUBLIC POLICY." 

  SORRELLS V. UNITED STATES, SUPRA, AT 459. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

[[DFN 

/1/  BOTH THE PROPOSED NEW FEDERAL CRIMINAL CODE (1971), FINAL
REPORT OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS ^
702, AND THE AMERICAN LAW INSTITUTE'S MODEL PENAL CODE ^ 2.13 (PROPOSED
OFFICIAL DRAFT, 1962), ADOPT THIS OBJECTIVE APPROACH. 

/2/  SEE DONNELLY, JUDICIAL CONTROL OF INFORMANTS, SPIES, STOOL
PIGEONS, AND AGENT PROVOCATEURS, 60 YALE L. J. 1091, 1111 (1951): 

"CLEARLY ENTRAPMENT IS A FACET OF A BROADER PROBLEM.  ALONG WITH
ILLEGAL SEARCH AND SEIZURES, WIRE TAPPING, FALSE ARREST, ILLEGAL
DETENTION AND THE THIRD DEGREE, IT IS A TYPE OF LAWLESS LAW
ENFORCEMENT.  THEY ALL SPRING FROM COMMON MOTIVATIONS.  EACH IS A
SUBSTITUTE FOR SKILLFUL AND SCIENTIFIC INVESTIGATION.  EACH IS CONDONED
BY THE SINISTER SOPHISM THAT THE END, WHEN DEALING WITH KNOWN CRIMINALS
OR THE 'CRIMINAL CLASSES,' JUSTIFIES THE EMPLOYMENT OF ILLEGAL MEANS." 

/3/  SEVERAL FEDERAL COURTS HAVE ADOPTED THE OBJECTIVE TEST ADVANCED
BY MR. JUSTICE ROBERTS AND MR. JUSTICE FRANKFURTER, OR A VARIANT
THEREOF, FOCUSING ON THE CONDUCT OF THE GOVERNMENT AGENTS, RATHER THAN
THE "PREDISPOSITION" OF THE PARTICULAR DEFENDANT.  SEE, E. G., UNITED
STATES V. MCGRATH, 468 F.2D 1027, 1030 - 1031 (CA7 1972); GREENE V.
UNITED STATES, 454 F.2D 783, 786 - 787 (CA9 1971); CARBAJAL-PORTILLO V.
UNITED STATES, 396 F.2D 944, 948 (CA9 1968); SMITH V. UNITED STATES,
118 U.S. APP. D. C. 38, 44, 46, 331 F.2D 784, 790, 792 (1964) (EN
BANC); UNITED STATES V. CHISUM, 312 F. SUPP. 1307 (CD CAL. 1970).  CF.
UNITED STATES V. MORRISON, 348 F.2D 1003, 1004 (CA2 1965); ACCARDI V.
UNITED STATES, 257 F.2D 168, 172 - 173, N. 5 (CA5 1958); UNITED STATES
V. KROS, 296 F. SUPP. 972, 979 (ED PA. 1969).  MOREOVER, THIS OBJECTIVE
APPROACH IS THE ONE FAVORED BY A MAJORITY OF THE COMMENTATORS.  IN
ADDITION TO THE PROPOSED NEW FEDERAL CRIMINAL CODE AND THE MODEL PENAL
CODE, SUPRA, N. 1, SEE WILLIAMS, THE DEFENSE OF ENTRAPMENT AND RELATED
PROBLEMS IN CRIMINAL PROSECUTION, 28 FORDHAM L. REV. 399 (1959); COWEN,
THE ENTRAPMENT DOCTRINE IN THE FEDERAL COURTS, AND SOME STATE COURT
COMPARISONS, 49 J. CRIM. L. C. & P. S. 447 (1959); DONNELLY, SUPRA, N.
2; COMMENT, ENTRAPMENT IN THE FEDERAL COURTS, 1 U. SAN FRANCISCO L.
REV. 177 (1966). 

/4/  SOME FEDERAL COURTS HAVE ORDERED INDICTMENTS FOR RECEIPT,
POSSESSION, OR SALE OF CONTRABAND TO BE DISMISSED, UPON A SHOWING THAT
GOVERNMENT AGENTS THEMSELVES HAD SUPPLIED THE CONTRABAND.  SEE UNITED
STATES V. MCGRATH, SUPRA; GREENE V. UNITED STATES, SUPRA; UNITED STATES
V. BUENO, 447 F.2D 903 (CA5 1971); UNITED STATES V. CHISUM, SUPRA;
UNITED STATES V. DILLET, 265 F. SUPP. 980 (SDNY 1966).  THE SAME
CONSIDERATIONS OBTAIN HERE. 

DEPUTY SOLICITOR GENERAL LACOVARA ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL PETERSEN, EDWARD R. KORMAN, JEROME M. FEIT,
AND ROGER A. PAULEY. 

THOMAS H. S. BRUCKER, BY APPOINTMENT OF THE COURT, 409 U.S. 946,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS ROBERT E.
PRINCE. 

PAUL G. CHEVIGNY AND MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :













TONASKET V. WASHINGTON ET AL., 411 U.S. 451 


       APPEAL FROM THE SUPREME COURT OF WASHINGTON 

NO. 71 - 1031.  ARGUED DECEMBER 12 - 13, 1972 -- DECIDED APRIL 24,
1973

  79 WASH. 2D 607, 488 P. 2D 281, VACATED AND REMANDED. 


PER CURIAM. 

THE JUDGMENT OF THE SUPREME COURT OF WASHINGTON IS VACATED, AND THE
CASE IS REMANDED TO THAT COURT FOR RECONSIDERATION IN LIGHT OF ^^ 6 AND
7 OF C. 157, 1972 EXTRAORDINARY SESSION LAWS OF THE STATE OF
WASHINGTON, AND THIS COURT'S DECISION IN MCCLANAHAN V. ARIZONA STATE
TAX COMM'N, ANTE, P. 164. 

ROBERT L. PIRTLE ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANT. 

SLADE GORTON, ATTORNEY GENERAL OF WASHINGTON, ARGUED THE CAUSE FOR
APPELLEES.  WITH HIM ON THE BRIEF WERE TIMOTHY R. MALONE, SENIOR
ASSISTANT ATTORNEY GENERAL, AND WILLIAM D. DEXTER, ASSISTANT ATTORNEY
GENERAL. 

ALVIN J. ZIONTZ ARGUED THE CAUSE AND FILED A BRIEF FOR CONFEDERATED
TRIBES OF THE COLVILLE RESERVATION ET AL. AS AMICI CURIAE. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL FRIZZELL, HARRY R. SACHSE,
AND EDMUND B. CLARK FOR THE UNITED STATES; BY CHARLES A. HOBBS AND
RICHARD A. BAENEN FOR THE NATIONAL CONGRESS OF AMERICAN INDIANS; BY
DAVID H. GETCHES FOR THE NATIVE AMERICAN RIGHTS FUND; AND BY PEARSON,
YUROK INDIAN AND TRADER ON THE HOOPA RESERVATION. 

WILLIAM D. DEXTER, ASSISTANT ATTORNEY GENERAL OF WASHINGTON, AND
EUGENE F. CORRIGAN FILED A BRIEF FOR MULTISTATE TAX COMMISSION AS
AMICUS CURIAE URGING AFFIRMANCE. 
..END :















EMPLOYEES V MISSOURI PUBLIC HEALTH DEPARTMENT, 411 U.S. 279 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT 

     NO. 71 - 1021.  ARGUED JANUARY 15, 1973 -- DECIDED APRIL 18,
1973; 452 F.2D 820, AFFIRMED. 


    PETITONERS, EMPLOYEES OF STATE HEALTH FACILITIES, BROUGHT SUIT

  FOR OVERTIME PAY DUE THEM UNDER "16(B)" OF THE FAIR LABOR

  STANDARDS ACT (FLSA) AND DAMAGES, WHICH THE DISTRICT COURT

  DISMISSED AS BEING AN UNCONSENTED ACTION AGAINST THE STATE OF

  MISSOURI AND THUS BARRED BY THE ELEVENTH AMENDMENT.  THE COURT OF

  APPEALS AFFIRMED.  HELD: ALTHOUGH AMENDMENTS TO THE FLSA IN 1966

  EXTENDED SATUTORY COVERAGE TO STATE EMPLOYEES, THE LEGISLATIVE

  HISTORY DISCLOSES NO CONGRESSIONAL PURPOSE TO DEPRIVE A STATE OF

ITS CONSITUTIONAL IMMUNITY TO SUIT IN A FEDERAL FORUM BY

EMPLOYEES OF ITS NONPROFIT INSTITUTIONS, PARTICULARLY SINCE

  CONGRESS MADE NO CHANGE IN ^ 16(B), WHICH MAKES NO REFERENCE TO

  SUITS BY EMPLOYEES DISTINGUISHED.  THE AMENDMENTS' EXTENSION OF

  COVERAGE TO STATE EMPLOYEES IS NOT WITHOUT MEANING AS THE

  SECRETARY OF LABOR IS THEREBY ENABLED TO BRING REMEDIAL ACTION ON

  THEIR BEHALF UNDER ^ 17 OF THE FLSA.  PP. 281 - 287. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
MARSHALL, J., FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH
STEWART, J., JOINED, POST, P. 287.  BRENNAN, J., FILED A DISSENTING
OPINION, POST, P. 298. 

MR. JUSTICE DOUBLAS DELIVERED THE OPINION OF THE COURT. 

[[HC280'(ORIGINAL DOCUMENT PAGE 280)' 

THE ELEVENTH AMENDMENT, ADOPTED IN 1795, AND FORMALLY RATIFIED IN
1798, PROVIDES: 

     "THE JUDICIAL POWER OF THE UNITED STATES SHALL NOT BE
CONSTRUED

  TO EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED

  AGAINST ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER STATE, OR

  BY CITIZENS OR SUBJECTS OF ANY FORIEGN STATE." 

THE ELEVENTH AMENDMENT IS THE BASIS OF A MOTION BY MISSOURI TO
DISMISS A COMPLAINT FILED BY EMPLOYEES OF STATE AGENCIES OF THAT STATE,
THE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, AND TWO OF ITS DIVISIONS,
THE DIVISION OF MENTAL DISEASE AND THE DIVISION OF HEALTH, AND VARIOUS
OFFICIALS OF THE DEPARTMENT AND OF THE TWO DIVISIONS. 

ALTHOUGH THE ELEVENTH AMENDMENT IS NOT LITERALLY APPLICABLE SINCE
PETITIONERS WHO BROUGHT SUIT ARE CITIZENS OF MISSOURI, IT IS
ESTABLISHED THAT AN UNCONSENTING STATE IS IMMUNE FROM SUITS BROUGHT IN
FEDERAL COURTS BY HER OWN CITIZENS AS WELL AS BY CITIZENS OF ANOTHER
STATE.  SEE HANS V. LOUISIANA, 134 U.S. 1; DUHNE V. NEW JERSEY, 251
U.S. 311; PARDEN V. TERMINAL R. CO., 377 U.S. 184; /1/  C. JACOBS, THE
ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY 109 - 110 (1972). 

THE EMPLOYEES SEEK OVERTIME COMPENSATION DUE THEM UNDER ^ 16 (B) OF
THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1069, AS AMENDED, 29
U.S.C. ^ 216(B), AND AN EQUAL AMOUNT AS LIQUIDATED DAMAGES AND
ATTORNEYS' FEES. 

[[HC281'(ORIGINAL DOCUMENT PAGE 281)'  THE DISTRICT COURT DISMISSED
THE COMPLAINT.  THE COURT OF APPEALS, SITTING IN A PANEL OF THREE,
REVERSED, ONE JUDGE DISSENTING.  NO. 20,204, APR. 2, 1971 (NOT
REPORTED).  ON THE FILING OF A PETITION FOR REHEARING, THE COURT OF
APPEALS SAT EN BANC AND BY A CLOSELY DIVIDED VOTE SET ASIDE THE PANEL
DECISION AND AFFIRMED THE JUDGMENT OF THE DISTRICT COURT.  452 F.2D
820.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED.  405 U.S. 1016. 

THE PANEL OF THREE THOUGHT THE PRESENT CASE WAS GOVERNED BY PARDEN
V. TERMINAL R. CO., SUPRA.  THE COURT SITTING EN BANC THOUGHT PARDEN
WAS DISTINGUISHABLE.  THAT IS THE CENTRAL ISSUE ARGUED IN THE PRESENT
CASE. 

PARDEN INVOLVED A STATE-OWNED RAILROAD OPERATING IN INTERSTATE
COMMERCE; AND THE CLAIMS WERE THOSE OF EMPLOYEES UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT (FELA), 35 STAT. 65, AS AMENDED, 45 U.S.C. ^
51 ET SEQ. 

[[HC282'(ORIGINAL DOCUMENT PAGE 282)'  THE TERM CARRIER FOR PURPOSES
OF THAT ACT WAS DEFINED BY CONGRESS AS INCLUDING "(EVERY COMMON CARRIER
BY RAILROAD WHILE ENGAGING IN COMMERCE BETWEEN ANY OF THE SEVERAL
STATES."  ID., ^ 51.  THE COURT CONCLUDED THAT CONGRESS DESIGNED TO
BRING STATE-OWNED, AS WELL AS PRIVATELY OWNED, CARRIERS WITHIN THAT
DEFINITION AND THAT IT WAS EMPOWERED TO DO SO BY THE COMMERCE CLAUSE. 
THE STATE'S OPERATION OF ITS RAILROAD IN INTERSTATE COMMERCE, IT HELD,
WAS IN SUBORDINATION TO THE POWER OF CONGRESS TO REGULATE INTERSTATE
COMMERCE AND APPLICATION OF THE FELA TO A STATE IN THOSE CIRCUMSTANCES
WAS NOT PRECLUDED BY SOVEREIGN IMMUNITY.  377 U.S., AT 191 - 193.  THE
PARDEN CASE IN FINAL ANALYSIS TURNED ON THE QUESTION OF WAIVER, A
MAJORITY OF THE COURT HOLDING THAT IT WAS A FEDERAL QUESTION SINCE ANY
CONSENT OF THE STATE TO SUIT DID NOT ARISE FROM AN ACT "WHOLLY WITHIN
ITS OWN SPHERE OF AUTHORITY" BUT IN THE AREA OF COMMERCE, WHICH IS
SUBJECT TO PERVASIVE FEDERAL REGULATION.  ID., AT 196. 

IT IS SAID THAT THE FAIR LABOR STANDARDS ACT (FLSA) STANDS ON THE
SAME FOUNDATION, REFLECTING THE POWER OF CONGRESS TO REGULATE
CONDITIONS OF WORK OF THOSE PRODUCING GOODS FOR COMMERCE, UNITED STATES
V. DARBY, 312 U.S. 100, AND THOSE WHOSE ACTIVITIES ARE NECESSARY TO THE
PRODUCTION OF GOODS FOR COMMERCE.  KIRSHCBAUM CO. V. WALLING, 316 U.S.
517, 524.  BY ^ 3(D) OF THE ACT, "EMPLOYER" WAS FIRST DEFINED TO
EXCLUDE THE UNITED STATES OR ANY STATE OR POLICTICAL SUBDIVISION OF A
STATE.  BUT IN 1966 THERE WAS ADDED TO ^ 3(D) AN "EXCEPT" CLAUSE WHICH
READS "EXCEPT WITH RESPECT TO EMPLOYEES OF A STATE, OR A POLICTICAL
SUBDIVISION THEREOF, EMPLOYED (1) IN A HOSPITAL, INSTITUTION, OR SCHOOL
REFERRED TO IN THE LAST SENTENCE OF SUBSECTION (R) OF THIS SECTION . .
."  SECTION 3 (R) WAS AMENDED AT THE SAME TIME TO INCLUDE:  "THE
OPERATION OF A HOSPITAL, AN INSTITUTION PRIMARILY ENGAGED IN THE CARE
OF THE SICK, THE AGED, THE MENTALLY ILL OR DEFECTIVE WHO RESIDE ON THE
PREMISES OF SUCH INSTITUTION, A SCHOOL FOR MENTALLY OR PHYSICALLY
HANDICAPPED OR GIFTED CHILDREN, AN ELEMENTARY OR SECONDARY SCHOOL, OR
AN INSTITUTION OF HIGHER EDUCATION (REGARDLESS OF WHETHER OR NOT SUCH
HOSPITAL, INSTITUTION, OR SCHOOL IS PUBLIC OR PRIVATE OR OPERATED FOR
PROFIT OR NOT FOR PROFIT) . . ." 

[[HC283'(ORIGINAL DOCUMENT PAGE 283)'  IDENTICAL LANGUAGE WAS ALSO
ADDED IN 1966 TO SUBSECTION 3(S), WHICH DEFINES "(ENTERPRISE ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE." 

BY REASON OF THE LITERAL LANGUAGE OF THE PRESENT ACT, MISSOURI AND
THE DEPARTMENTS JOINED AS DEFENDANTS ARE CONSTITUTIONALLY COVERED BY
THE ACT, AS THE COURT HELD IN MARYLAND V. WIRTZ, 392 U.S. 183.  THE
QUESTION IS WHETHER CONGRESS HAS BROUGHT THE STATES TO HEEL, IN THE
SENSE OF LIFTING THEIR IMMUNITY FROM SUIT IN A FEDERAL COURT -- A
QUESTION WE RESERVED IN MARYLAND V. WIRTZ, SUPRA, AT 199 - 201. 

THERE IS NO DOUBT THAT CONGRESS DESIRED TO BRING UNDER THE ACT
EMPLOYEES OF HOSPITALS AND RELATED INSTITUTIONS.  S. REP. NO. 1487,
89TH CON., 2D SESS., 8, 22 - 23; H. R. REP. NO. 1366, 89TH CONG., 2D
SESS., 3, 11 - 12, 15, 16 - 17, 18.  BUT ^ 16(B) REMAINED THE SAME. 
PRIOR TO 1966 AND AFTERWARD, IT READ IN RELEVANT PART: 

     "ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 6 OR

  SECTION 7 OF THIS ACT SHALL BE LIABLE TO THE EMPLOYEE OR

  EMPLOYEES AFFECTED IN THE AMOUNT OF THEIR UNPAID OVERTIME

  COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL EQUAL

  AMOUNT AS LIQUIDATED DAMAGES.  ACTION TO RECOVER SUCH LIABILITY

  MAY BE MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION . . ." 

THE HISTORY AND TRADITION OF THE ELEVENTH AMENDMENT INDICATE THAT BY
REASON OF THAT BARRIER A FEDERAL COURT IS NOT COMPETENT TO RENDER
JUDGMENT AGAINST A NONCONSENTING STATE. 

[[HC284'(ORIGINAL DOCUMENT PAGE 284)'  PARDEN INVOLVED THE RAILROAD
BUSINESS WHICH ALABAMA OPERATED "FOR PROFIT."  377 U.S., AT 185. 
PARDEN WAS IN THE AREA WHERE PRIVATE PERSONS AND CORPORATIONS NORMALLY
RAN THE ENTERPRISE. 

STATE MENTAL HOSPITALS, STATE CANCER HOSPITALS, AND TRAINING SCHOOLS
FOR DELINQUENT GIRLS WHICH ARE NOT OPERATED FOR PROFIT ARE NOT
PROPRIETARY.  "BEFORE 1810, ONLY A FEW EASTERN-SEABOARD STATES HAD
INCORPORATED PRIVATE INSTITUTIONS TO CARE FOR THE MENTALLY ILL, AND
VIRGINIA ALONE HAD ESTABLISHED A PUBLIC ASYLUM."  D. ROTHMAN, THE
DISCOVERY OF THE ASYLUM 130 (1971).  BUT, AS ROTHMAN RELATES, AFTER
THAT THE PUBLIC SECTOR TOOK OVER.  /2/ 

WHERE EMPLOYEES IN STATE INSTITUTIONS NOT CONDUCTED FOR PROFIT HAVE
SUCH A RELATION TO INTERSTATE COMMERCE THAT NATIONAL POLICY, OF WHICH
CONGRESS IS THE KEEPER, INDICATES THAT THEIR STATUS SHOULD BE RAISED,
CONGRESS CAN ACT.  AND WHEN CONGRESS DOES ACT, IT MAY PLACE NEW OR EVEN
ENORMOUS FISCAL BURDENS OF THE STATES.  CONGRESS, ACTING RESPONSIBLY,
WOULD NOT BE PRESUMED TO TAKE SUCH ACTION SILENTLY. 

[[HC285'(ORIGINAL DOCUMENT PAGE 285)'  THE DRAMATIC CIRCUMSTANCES OF
THE PARDEN CASE, WHICH INVOLVED A RATHER ISOLATED STATE ACTIVITY CAN BE
PUT TO ONE SIDE.  WE DEAL HERE WITH PROBLEMS THAT MAY WELL IMPLICATE
ELEVATOR OPERATORS, JANITORS, CHARWOMEN, SECURITY GUARDS, SECRETARIES,
AND THE LIKE IN EVERY OFFICE BUILDING IN A STATE'S GOVERNMENTAL
HIERARCHY.  THOSE WHO FOLLOW THE TEACHINGS OF KIRSCHBAUM V. WALLING,
SUPRA, AND SEE ITS MANIFOLD APPLICATIONS WILL APPRECIATE HOW PERVASIVE
SUCH A NEW FEDERAL SCHEME OF REGULATION WOULD BE. 

BUT WE HAVE FOUND NOT A WORD IN THE HISTORY OF THE 1966 AMENDMENTS
TO INDICATE A PURPOSE OF CONGRESS TO MAKE IT POSSIBLE FOR A CITIZEN OF
THAT STATE OR ANOTHER STATE TO SUE THE STATE IN THE FEDERAL COURTS. 
THE PARDEN OPINION DID STATE THAT IT WOULD BE "SURPRISING"  TO LEARN
THAT CONGRESS MADE STATE RAILROADS LIABLE TO EMPLOYEES UNDER FELA, YET
PROVIDED "NO MEANS BY WHICH THAT LIABILITY MAY BE ENFORCED."  377 U.S.,
AT 197.  IT WOULD ALSO BE SURPRISING IN THE PRESENT CASE TO INFER THAT
CONGRESS DEPRIVED MISSOURI OF HER CONSTITUTIONAL IMMUNITY WITHOUT
CHANGING THE OLD ^ 16 (B) UNDER WHICH SHE COULD NOT BE SUED OR
INDICATING IN SOME WAY BE CLEAR LANGUAGE THAT THE CONSTITUTIONAL
IMMUNITY WAS SWEPT AWAY.  IT IS NOT EASY TO INFER THAT CONGRESS IN
LEGISLATING PURSUANT TO THE COMMERCE CLAUSE, WHICH HAS GROWN TO VAST
PROPORTIONS IN ITS APPLICATIONS, DESIRED SILENTLY TO DEPRIVE THE STATES
OF AN IMMUNITY THEY HAVE LONG ENJOYED UNDER ANOTHER PART OF THE
CONSTITUTION.  THUS, WE CANNOT CONCLUDE THAT CONGRESS CONDITIONED THE
OPERATION OF THESE FACILITIES ON THE FORFEITURE OF IMMUNITY FROM SUIT
IN A FEDERAL FORUM. 

BY HOLDING THAT CONGRESS DID NOT LIFT THE SOVEREIGN IMMUNITY OF THAT
STATES UNDER FLSA, WE DO NOT MAKE THE EXTENSION OF COVERAGE TO STATE
EMPLOYEES MEANINGLESS.  CF. PARDEN V. TERMINAL R. CO., SUPRA, AT 190. 
UNPAID MINIMUM WAGES OR UNPAID OVERTIME COMPENSATION UNDER FLSA.  ONCE
THE SECRETARY ACTS UNDER ^ 16(C), THE RIGHT OF ANY EMPLOYEE OR
EMPLOYEES TO SUE UNDER ^ 16(B) TERMINATES. 

[[HC286'(ORIGINAL DOCUMENT PAGE 286)'  SECTION 17 GIVES THE
SECRETARY POWER TO SEEK TO ENJOIN VIOLATIONS OF THE ACT AND TO OBTAIN
RESTITUTION IN BEHALF OF EMPLOYEES.  SECTIONS 16 AND 17 SUGGEST THAT
SINCE PRIVATE ENFORCEMENT OF THE ACT WAS NOT A PARAMOUNT OBJECTIVE,
DISALLOWANCE OF SUITS BY STATE EMPLOYEES AND REMITTING THEM TO RELIEF
THROUGH THE SECREATRY OF LABOR MAY EXPLAIN WHY CONGRESS WAS SILENT AS
TO WAIVER OF SOVEREIGN IMMUNITY OF THE STATES.  FOR SUITS BY THE UNITED
STATES AGAINST A STATE ARE NOT BARRED BY THE CONSTITUTION.  SEE UNITED
STATES V. MISSISSIPPI, 380 U.S. 128, 140 - 141.  IN THIS CONNECTION, IT
IS NOT AMISS TO NOTE THAT ^ 16(B) ALLOWS RECOVERY BY EMPLOYEES, NOT
ONLY OF THE AMOUNT OF UNPAID WAGES, BUT OF AN EQUAL AMOUNT AS
LIQUIDATED DAMAGES AND ATTORNEYS' FEES.  IT IS ONE THING, AS IN PARDEN,
TO MAKE A STATE EMPLOYEE WHOLE; IT IS QUITE ANOTHER TO LET HIM RECOVER
DOUBLE AGAINST A STATE.  RECALCITRANT PRIVATE EMPLOYERS MAY BE WHIPPED
INTO LINE IN THAT MANNER.  BUT WE ARE RELUCTANT TO BELIEVE THAT
CONGRESS IN PURSIT OF A HARMONIOUS FEDERALISM DESIRED TO TREAT THE
STATES SO HARSHLY.  THE POLICY OF THE ACT SO FAR AS THE STATES ARE
CONCERNED IS WHOLLY SERVED BY ALLOWING THE DELICATE FEDERAL-STATE
RELATIONSHIP TO BE MANAGED THROUGH THE SECRETARY OF LABOR. 

THE SOLICITOR GENERAL, AS AMICUS CURIAE, ARGUES THAT HANS V.
LOUISIANA, 134 U.S. 1, SHOULD NOT BE CONSTRUED TO APPLY TO THE PRESENT
CASE, HIS THEORY BEING THAT IN HANS THE SUIT WAS ONE TO COLLECT ON
COUPONS ATTACHING TO STATE BONDS, WHILE IN THE INSTANT CASE THE SUIT IS
A CAUSE OF ACTION CREATED B[ CONGRESS AND CONTAINED IN ^ 16(B) OF THE
ACT.  IT IS TRUE THAT, AS THE COURT SAID IN PARDEN, "THE STATES
SURRENDERED A PORTION OF THEIR SOVEREIGNTY WHEN THEY GRANTED CONGRESS
THE POWER TO REGULATE COMMERCE."  377 U.S., AT 191.  BUT WE DECLINE TO
EXTEND PARDEN TO COVER EVERY EXERCISE BY CONGRESS OF ITS COMMERCE
POWER, WHERE THE PURPOSE OF CONGRESS TO GIVE FORCE TO THE SUPREMACY
CLAUSE BY LIFTING THE SOVEREIGNTY OF THE STATES AND PUTTING THE STATES
ON THE SAME FOOTING AS OTHER EMPLOYERS IS NOT CLEAR. 

[[HC287'(ORIGINAL DOCUMENT PAGE 287)' 

WE ARE TOLD THAT FLSA IN 1971 COVERED 45.4 MILLION EMPLOYEES AND
NEARLY 2 MILLION ESTABLISHMENTS, AND THAT 2.7 MILLION OF THESE
EMPLOYEES AND 118,000 OF THESE ESTABLISHMENTS WERE IN STATE OR LOCAL
GOVERNMENT EMPLOYMENT.  WE ARE ALSO TOLD THAT LESS THAN 4% OF THESE
ESTABLISHMENTS CAN BE INVESTIGATED BY THE SECRETARY OF LABOR EACH
YEAR.  THE ARGUMENT IS THAT IF WE DENY THIS DIRECT FEDERAL COURT
REMEDY, WE IN EFFECT ARE RECOGNIZING THAT THERE IS A RIGHT WITHOUT ANY
REMEDY.  SECTION 16(B), HOWEVER, AUTHORIZES EMPLOYEE SUITS IN "ANY
COURT OF COMPETENT JURISDICTION."  ARGUABLY, THAT PERMITS SUIT IN THE
MISSOURI COURTS BUT THAT IS A QUESTION WE NEED NOT REACH.  WE ARE
CONCERNED ONLY WITH THE PROBLEM OF THIS ACT AND THE CONSTITUTIONAL
CONSTRAINTS ON "THE JUDICIAL POWER" OF THE UNITED STATES. 

              AFFIRMED. 

/1/  THE DISSENT ARGUES THAT "PARDEN HELD THAT A FEDERAL COURT
DETERMINATION OF SUCH SUITS CANNOT BE PRECLUDED BY THE DOCTRINE OF
SOVEREIGN IMMUNITY BECAUSE THE STATES SURRENDERED THEIR SOVEREIGNTY TO
THE EXTENT WHEN THEY GRANTED CONGRESS THE POWER TO REGULATE COMMERCE." 
POST, AT 199.  BUT, THE PLAIN LANGUAGE OF THE COURT'S OPINION IN PARDEN
BELIES THIS ASSERTION.  FOR EXAMPLE, THE COURT STATED: 

"RECOGNITION OF THE CONGRESSIONAL POWER TO RENDER A STATE SUABLE
UNDER THE FELA DOES NOT MEAN THAT THE IMMUNITY DOCTRINE, AS EMBODIED IN
THE ELEVENTH AMENDMENT WITH RESPECT TO CITIZENS OF OTHER STATES AND AS
EXTENDDED TO THE STATE'S OWN CITIZENS BY THE HANS CASE, IS HERE BEING
OVERRIDDEN.  IT REMAINS THE LAW THAT A STATE MAY NOT BE SUED BY AN
INDIVIDUAL WITHOUT ITS CONSENT."  377 U.S. 184, 192.  THE COURT THEN
REPEATED THAT "(A) STATE'S IMMUNITY FROM SUIT BY AN INDIVIDUAL WITHOUT
ITS CONSENT HAS BEEN FULLY RECOGNIZED BY THE ELEVENTH AMENDMENT AND BY
SUBSEQUENT DECISIONS OF THIS COURT."  ID., AT 196.  AS WE READ THESE
PASSAGES, AND CLEARLY AS THE DISSENT IN PARDEN READ THEM, ID., AT 198,
THEY DEALT WITH CONSTITUTIONAL CONSTRAINTS ON THE EXERCISE OF THE
FEDERAL JUDICIAL POWER.  MOREOVER, IF PARDEN WAS CONCERNED MERELY WITH
THE SURRENDER OF COMMON-LAW SOVEREIGN IMMUNITY WHEN THE STATES GRANTED
CONGRESS THE POWER TO REGULATE COMMERCE, IT WOULD SEEM UNNECESSARY TO
REACH THE QUESTION OF WAIVER OR CONSENT, FOR CONGRESS COULD SUBJECT THE
STATES TO SUIT BY THEIR OWN CITIZENS WHENEVER IT WAS DEEMED NECESSARY
OR APPROPRIATE TO THE REGULATION OF COMMERCE.  NO MORE WOULD BE
REQUIRED.  BUT, THERE CAN BE NO DOUBT THAT THE COURT'S HOLDING IN
PARDEN WAS PREMISED ON THE CONCLUSION THAT ALABAMA, BY OPERATING THE
RAILROAD, HAD CONSENTED TO SUIT IN THE FEDERAL COURTS UNDER FELA.  ID.,
AT 186. 

/2/  "FEW DEPARTURES FROM COLONIAL PRACTICES OCCURRED IN THE FIRST
FORTY YEARS AFTER INDEPENDENCE; THE INSANE COMMONLY LANGUISHED IN CAL
JAILS AND POORHOUSES OR LIVED WITH FAMILY AND FRIENDS.  BUT IN THE
COURSE OF THE NEXT FEW DECADES, IN A DRAMATIC TRANSFORMATION, STATE
AFTER STATE CONSTRUCTED ASYLUMS.  BUDDING MANUFACTURING CENTERS LIKE
NEW YORK AND MASSACHUSETTS ERECTED INSTITUTIONS IN THE 1830'S, AND SO
DID THE AGRICULTURAL STATES OF VERMONT AND OHIO, TENNESSEE AND
GEORGIA.  BY 1850, ALMOST EVERY NORTHEASTERN AND MIDWESTERN LEGISLATURE
SUPPORTED AN ASYLUM; BY 1860, TWENTY-EIGHT OF THE THIRTY-THREE STATES
HAD PUBLIC INSTITUTIONS FOR THE INSANE.  ALTHOUGH NOT ALL OF THE
MENTALLY ILL FOUND A PLACE WITHIN A HOSPITAL, AND A GOOD NUMBER AMONG
THE AGED AND CHRONIC POOR REMAINED IN ALMSHOUSES AND JAILS, THE
INSTITUTIONALIZATION OF THE INSANE BECAME THE STANDARD PROCEDURE OF THE
SOCIETY DURING THESE YEARS.  A CULT OF ASYLUM SWEPT THE COUNTRY." 
IBID. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE STEWART JOINS,
CONCURRING IN THE RESULT. 

I BELIEVE THAT PROPER ANALYSIS OF WHETHER THESE EMPLOYEES MAY SUE
THEIR STATE EMPLOYER IN FEDERAL COURT FOR OVERTIME COMPENSATION OWED TO
THEM UNDER THE FAIR LABOR STANDARDS ACT  /1/ REQUIRES CONSIDERATION OF
WHAT I VIEW AS TWO DISTINCT QUESTIONS: (1) DID CONGRESS, IN EXTENDING
THE PROTECTION OF THE FLSA TO STATE EMPLOYEES SUCH AS THESE
PETITIONERS, EFFECTIVELY LIFT THE STATE'S PROTECTIVE VEIL OF SOVEREIGN
IMMUNITY; AND (2) EVEN IF CONGRESS DID LIFT THE STATE'S GENERAL
IMMUNITY, IS THE EXERCISE OF FEDERAL JUDICIAL POWER BARRED IN THE
CONTEXT OF THIS CASE IN LIGHT OF ART. III AND THE ELEVENTH AMENDMENT? 
PORTIONS OF THE COURT'S OPINION CONVEY THE IMPRESSION THAT THESE
QUESTIONS ARE BUT A SINGLE ISSUE.  /2/  I DO NOT AGREE.  AMENDMENT? 
PORTIONS OF THE COURT'S OPINION CONVEY THE IMPRESSION THAT THESE
QUESTIONS ARE BUT A SINGLE ISSUE.  /2/  I DO NOT AGREE. 

SOVEREIGN IMMUNITY IS A COMMON-LAW DOCTRINE THAT LONG PREDATES OUR
CONSTITUTION AND THE ELEVENTH AMENDMENT, ALTHOUGH IT HAS, OF COURSE,
BEEN CARRIED FORWARD IN OUR JURISPRUDENCE.  /3/  WHILE THE PRESENT-DAY
IMMUNITY OF A STATE FROM SUIT BY ITS OWN CITIZENS OR BY CITIZENS OF
ANOTHER STATE IN THE ABSENCE OF CONSENT OBVIOUSLY CANNOT BE JUSTIFIED
ON THE COMMON-LAW RATIONALE THAT "THE KING CAN DO NO WRONG," THE
PRINCIPLE HAS BEEN SAID TO BE APPLICABLE TO THE STATES BECAUSE OF "(THE
INHERENT NATURE OF SOVEREIGNTY,"  GREAT NORTHERN LIFE INSURANCE CO. V.
READ, 322 U.S. 47, 51 (1944).  SEE ALSO KAWANANAKOA V. POLYBLANK, 205
U.S. 349, 353 (1907). 

THE COMMON-LAW DOCTRINE OF SOVEREIGN IMMUNITY IN ITS ORIGINAL FORM
STOOD AS AN ABSOLUTE BAR TO SUIT AGAINST A STATE BY ONE OF ITS
CITIZENS, ABSENT CONSENT.  BUT THAT DOCTRINE WAS MODIFIED PRO TANTO IN
1788 TO THE EXTENT THAT THE STATES RELINQUISHED THEIR SOVEREIGNTY TO
THE FEDERAL GOVERNMENT.  AT THE TIME OUR UNION WAS FORMED, THE STATES,
FOR THE GOOD OF THE WHOLE, GAVE CERTAIN POWERS TO CONGRESS, INCLUDING
POWER TO REGULATE COMMERCE, AND BY SO DOING, THEY SIMULTANEOUSLY
SUBJECTED TO CONGRESSIONAL CONTROL THAT PORTION OF THEIR PRE-EXISTING
COMMON-LAW SOVEREIGNTY WHICH CONFLICTED WITH THOSE SUPREME POWERS GIVEN
OVER TO CONGRESS.  THIS IS ONE OF THE ESSENTIAL LESSONS OF THE DECISION
IN PARDEN V. TERMINAL R. CO., 377 U.S. 184, 192 (1964), WHERE THE COURT
RECOGNIZED THAT "(BY EMPOWERING CONGRESS TO REGULATE COMMERCE . . . THE
STATES NECESSARILY SURRENDERED ANY PORTION OF THEIR SOVEREIGNTY THAT
WOULD STAND IN THE WAY OF SUCH REGULATION."  CONGRESS HAVING VALIDLY
EXERCISED ITS POWER UNDER THE COMMERCE CLAUSE TO EXTEND THE PROTECTION
OF THE FLSA TO STATE EMPLOYEES SUCH AS PETITIONERS, SEE MARYLAND V.
WIRTZ, 392 U.S. 183 (1968), THE STATE MAY NOT DEFEAT THIS SUIT BY
RETREATING BEHIND ITS COMMON-LAW SHIELD OF SOVEREIGN IMMUNITY. 

INSOFAR AS THE COURT MAY NOW BE SUGGESTING THAT THE CONGRESS HAS NOT
EFFECTIVELY LIFTED THE STATE'S IMMUNITY FROM PRIVATE SUIT IN THE
CONTEXT OF THE FLSA, I CANNOT AGREE.  IN THE 1966 AMENDMENT, ^ 3(D), 29
U.S.C. ^ 203(D), WHICH DEFINES "EMPLOYER" FOR THE PURPOSES OF STATE, OR
A POLITICAL SUBDIVISION THEREOF, EMPLOYED . . . IN A HOSPITAL,
INSTITUTION, OR SCHOOL . . ."  /4/  IN THE FACE THAT CONGRESS DID NOT
INTEND TO EXTEND THE FULL BENEFIT OF THE PROVISIONS OF THE FLSA TO
THESE STATE EMPLOYEES.  /5/  IT IS TRUE -- AS THE COURT POINTS OUT --
THAT IN 1966 CONGRESS DID NOT AMEND ^ 16(B) OF THE ACT, 29 U.S.C. ^
216(B), WHICH PROVIDES FOR PRIVATE SUIT BY THE "EMPLOYEE"  AGAINST THE
"EMPLOYER" TO RECOVER UNPAID COMPENSATION.  BUT THIS IS READILY
EXPLAINED BY THE FACT THAT NO AMENDMENT TO THE LANGUAGE OF ^ 16(B) WAS
NECESSARY TO MAKE THE DESIRED EXTENSION TO STATE EMPLOYEES; THE
ALTERATION OF THE DEFINITION OF "EMPLOYER" IN ^ 3(D) CLEARLY SUFFICED
TO ACHIEVE CONGRESS' PURPOSE /6/  AND TO EXPRESS ITS WILL.  INDEED, TO
SUGGEST THAT ^ 16(B) MAY NOT PROVIDE FOR SUIT BY STATE EMPLOYEES,
DESPITE THE ALTERATION OF ^ 3(D) TO INCLUDE STATE EMPLOYERS, IGNORES
THE BASIC CANON OF STATUTORY CONSTRUCTION THAT DIFFERENT PROVISIONS OF
THE SAME STATUTE NORMALLY SHOULD BE CONSTRUED CONSISTENTLY WITH ONE
ANOTHER.  SEE, E. G., CLARK V. UEBERSEE FINANZ-KORPORATION, A. G., 332
U.S. 480, 488 (1947); MARKHAM V. CABELL, 326 U.S. 404, 410 - 411
(1945); EX PARTE PUBLIC NATIONAL BANK, 278 U.S. 101, 104 (1928). 

THERE REMAINS, THOUGH, THE QUESTION, WHERE MAY THESE PETITIONERS
ENFORCE AGAINST THE STATE THEIR CONGRESSIONALLY CREATED RIGHTS UNDER
THE FLSA?  SECTION 16(B) AUTHORIZES EMPLOYEE SUITS "IN ANY COURT OF
COMPETENT JURISDICTION."  HAS CONGRESS THUS SUCCESSFULLY COMPELLED THE
STATE IN THIS CASE TO SUBMIT TO EMPLOYEE SUITS IN FEDERAL COURT? 

THE ELEVENTH AMENDMENT PROVIDES: 

     "THE JUDICIAL POWER OF THE UNITED STATES SHALL NOT BE
CONSTRUED

TO EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED

  AGAINST ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER STATE, OR

  BY CITIZENS OR SUBJECTS OF ANY FOREIGN STATE." 

ON ITS FACE THE AMENDMENT, OF COURSE, MAKES NO MENTION OF A CITIZEN'S
ATTEMPT TO SUE HIS OWN STATE IN FEDERAL COURT, THE SITUATION WITH WHICH
WE DEAL HERE.  NEVERTHELESS, I BELIEVE IT CLEAR THAT THE JUDICIAL POWER
OF THE UNITED STATES DOES NOT EXTEND TO SUITS SUCH AS THIS, ABSENT
CONSENT BY THE STATE TO THE EXERCISE OF SUCH POWER.  THIS QUESTION WAS
FIRST CONSIDERED IN HANS V. LOUISIANA, 134 U.S. 1 (1890), WHERE A
FEDERAL COURT ACTION WAS BROUGHT AGAINST A STATE BY ONE OF ITS CITIZENS
WHO CLAIMED THAT IT HAD UNCONSTITUTIONALLY REPUDIATED CERTAIN DEBT
OBLIGATIONS IN VIOLATION OF THE CONTRACT CLAUSE OF ART. I, ^ 10.  MR.
JUSTICE BRADLEY, SPEAKING FOR THE COURT, OBSERVED THAT THE SUIT WAS "AN
ATTEMPT TO STRAIN THE CONSTITUTION AND THE LAW TO A CONSTRUCTION NEVER
IMAGINED OR DREAMED OF," AND HE THEN ASKED: 

"CAN WE SUPPOSE THAT, WHEN THE ELEVENTH AMENDMENT WAS ADOPTED, IT
WAS UNDERSTOOD TO BE LEFT OPEN FOR CITIZENS OF A STATE TO SUE THEIR OWN
STATE IN THE FEDERAL COURTS, WHILST THE IDEA OF SUITS BY CITIZENS OF
OTHER STATES, OR OF FOREIGN STATES, WAS INDIGNANTLY REPELLED?"  ID., AT
15.  THE COURT REJECTED SUCH A SUGGESTION IN HANS, AND IT HAS CONTINUED
TO DO SO EVER SINCE.  SEE DUHNE V. NEW JERSEY, 251 U.S. 311 (1920);
FITTS V. MCGHEE, 172 U.S. 516, 524 - 525 (1899); NORTH CAROLINA V.
TEMPLE, 134 U.S. 22 (1890). 

THE ROOT OF THE CONSTITUTIONAL IMPEDIMENT TO THE EXERCISE OF THE
FEDERAL JUDICIAL POWER IN A CASE SUCH AS THIS IS NOT THE ELEVENTH
AMENDMENT BUT ART. III OF OUR CONSTITUTION.  FOLLOWING THE DECISION IN
CHISHOLM V. GEORGIA, 2 DALL.  419 (1793), IN WHICH THIS COURT HELD THAT
FEDERAL JURISDICTION ENCOMPASSED A SUIT BROUGHT AGAINST A NONCONSENTING
STATE BY CITZENS OF ANOTHER STATE, THE ELEVENTH AMENDMENT WAS
INTRODUCED TO CLARIY THE INTENT OF THE FRAMERS CONCERNING THE REACH OF
THE FEDERAL JUDICIAL POWER.  SEE, E. G., HANS V. LOUISIANA, 134 U.S.,
AT 11 - 14.  IT HAD BEEN WIDELY UNDERSTOOD PRIOR TO RATIFICATION OF THE
CONSTITUTION THAT THE PROVISION IN ART. III, ^ 2, CONCERNING
"CONTROVERSIES . . . BETWEEN A STATE AND CITIZENS OF ANOTHER STATE"
WOULD NOT PROVIDE A MECHANISM FOR MAKING STATES UNWILLING DEFENDANTS IN
FEDERAL COURT.  /7/  THE COURT IN CHISHOLM, HOWEVER, CONSIDERED THE
PLAIN MEANING OF THE CONSTITUTIONAL PROVISION TO BE CONTROLLING.  THE
ELEVENTH AMENDMENT SERVED EFFECTIVELY TO REVERSE THE PARTICULAR HOLDING
IN CHISHOLM, AND, MORE GENERALLY, TO RESTORE THE ORIGINAL
UNDERSTANDING, SEE, E. G., HANS V. LOUISIANA, SUPRA, AT 11 - 15.  THUS,
DESPITE THE NARROWNESS OF THE LANGUAGE OF THE AMENDMENT, ITS SPIRIT HAS
CONSISTENTLY GUIDED THIS COURT IN INTERPRETING THE REACH OF THE FEDERAL
JUDICIAL POWER GENERALLY, AND "IT HAS BECOME ESTABLISHED BY REPEATED
DECISIONS OF THIS COURT THAT THE ENTIRE JUDICIAL POWER GRANTED BY THE
CONSTITUTION DOES NOT EMBRACE AUTHORITY TO ENTERTAIN A SUIT BROUGHT BY
PRIVATE PARTIES AGAINST A STATE WITHOUT CONSENT GIVEN:  NOT ONE BROUGHT
BY CITIZENS OF ANOTHER STATE, OR BY CITIZENS OF SUBJECTS OF A FOREIGN
STATE, BECAUSE OF THE ELEVENTH AMENDMENT; AND NOT EVEN ONE BROUGHT BY
ITS OWN CITIZENS, BECAUSE OF THE FUNDAMENTAL RULE OF WHICH THE
AMENDMENT IS BUT AN EXEMPLIFICATION,"  EX PARTE NEW YORK, NO. 1, 256
U.S. 490, 497 (1921); SEE SMITH V. REEVES, 178 U.S. 436, 447 - 449
(1900).  /8/ 

THIS LIMITATION UPON THE JUDICIAL POWER IS, WITHOUT QUESTION, A
REFLECTION OF CONCERN FOR THE SOVEREIGNTY OF THE STATES, BUT IN A
PARTICULARLY LIMITED CONTEXT.  THE ISSUE IS NOT THE GENERAL IMMUNITY OF
THE STATES FROM PRIVATE SUIT -- A QUESTION OF THE COMMON LAW -- BUT
MERELY THE SUSCEPTIBILITY OF THE STATES TO SUIT BEFORE FEDERAL
TRIBUNALS.  BECAUSE OF THE PROBLEMS OF FEDERALISM INHERENT IN MAKING
ONE SOVEREIGN APPEAR AGAINST ITS WILL IN THE COURTS OF THE OTHER, A
RESTRICTION UPON THE EXERCISE OF THE FEDERAL JUDICIAL POWER HAS LONG
BEEN CONSIDERED TO BE APPROPRIATE IN A CASE SUCH AS THIS.  /9/ 

AT THE SAME TIME, IT IS WELL ESTABLISHED THAT A STATE MAY CONSENT TO
FEDERAL SUIT AND SUBMIT TO THE EXERCISE OF FEDERAL JURISDICTION OVER
IT.  /10/  SEE, E. G., PETTY V. TENNESSEE-MISSOURI BRIDGE COMM'N, 359
U.S. 275, 276 (1959); GUNTER V. ATLANTIC COAST LINE R. CO., 200 U.S.
273, 284 (1906); CLARK V. BARNARD, 108 U.S. 436, 447 (1883).  THE
ISSUE, THEN, IS WHETHER THE STATE HAS CONSENTED TO THIS SUIT BY ITS
EMPLOYEES UNDER THE FLSA. 

IN PARDEN V. TERMINAL R. CO., SUPRA, THIS COURT FOUND THAT ALABAMA
WHICH HAD UNDERTAKEN THE OPERATION OF AN INTERSTATE RAILROAD HAD
CONSENTED TO SUITS BROUGHT IN FEDERAL COURT BY ITS RAILROAD EMPLOYEES
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. ^^ 51 - 60.  AS
TO THE STATE'S SUABILITY IN FEDERAL COURT, THE COURT REASONED THAT
"ALABAMA, WHEN IT BEGAN OPERATION OF AN INTERSTATE RAILROAD
APPROXIMATELY 20 YEARS AFTER ENACTMENT OF THE FELA, NECESSARILY
CONSENTED TO SUCH SUIT AS WAS AUTHORIZED BY THAT ACT."  377 U.S., AT
192.  FOR ME AT LEAST, THE CONCEPT OF IMPLIED CONSENT OR WAIVER RELIED
UPON IN PARDEN APPROACHES, ON THE FACTS OF THAT CASE, THE OUTER LIMIT
OF THE SORT OF VOLUNTARY CHOICE WHICH WE GENERALLY ASSOCIATE WITH THE
CONCEPT OF CONSITUTIONAL WAIVER.  CF. D. H. OVERMYER CO. V. FRICK CO.,
405 U.S. 174, 185 - 186 (1972); FAY V. NOIA, 372 U.S. 391, 439 (1963);
JOHNSON V. ZERBST, 304 U.S. 458, 464 (1938).  CERTAINLY, THE CONCEPT
CANNOT BE STRETCHED SUFFICIENTLY FURTHER TO ENCOMPASS THIS CASE.  HERE
THE STATE WAS FULLY ENGAGED IN THE OPERATION OF THE AFFECTED HOSPITALS
AND SCHOOLS AT THE TIME OF THE 1966 AMENDMENTS.  TO SUGGEST THAT THE
STATE HAD THE CHOICE OF EITHER CEASING OPERATION OF THESE VITAL PUBLIC
SERVICES OR "CONSENTING" TO FEDERAL SUIT SUFFICES, I BELIEVE, TO
DEMONSTRATE THAT THE STATE HAD NO TRUE CHOICE AT ALL AND THEREBY THAT
THE STATE DID NOT VOLUNTARILY CONSENT TO THE EXERCISE OF FEDERAL
JURISDICTION IN THIS CASE.  CF. MARCHETTI V. UNITED STATES, 390 U.S.
39, 51 - 52 (1968).  IN PARDEN, ALABAMA ENTERED THE INTERSTATE RAILROAD
BUSINESS WITH AT LEAST LEGAL NOTICE OF AN OPERATOR'S RESPONSIBILITITES
AND LIABILITY UNDER THE FELA TO SUIT IN FEDERAL COURT, AND IT COULD
HAVE CHOSEN NOT TO ENTER AT ALL IF IT CONSIDERED THAT LIABILITY TOO
ONEROUS OR OFFENSIVE.  IT OBVIOUSLY IS A FAR DIFFERENT THING TO SAY
THAT A STATE MUST GIVE UP ESTABLISHED FACILITIES, SERVICES, AND
PROGRAMS OR ELSE CONSENT TO FEDERAL SUIT.  THUS, I CONCLUDE THAT THE
STATE HAS NOT VOLUNTARILY CONSENTED TO THE EXERCISE OF FEDERAL JUDICIAL
POWER OVER IT IN THE CONTEXT OF THIS CASE.  /11/ 

THIS IS NOT TO SAY, HOWEVER, THAT PETITIONERS ARE WITHOUT A FORUM IN
WHICH PERSONALLY TO SEEK REDRESS AGAINST THE STATE.  /12/  SECTION
16(B)'S AUTHORIZATION FOR EMPLOYEE SUITS TO BE BROUGHT "IN ANY COURT OF
COMPETENT JURISDICTION" INCLUDES STATE AS WELL AS FEDERAL COURTS.  SEE
IOWA BEEF PACKERS, INC. V. THOMPSON, 405 U.S. 228 (1972).  AS I HAVE
ALREADY NOTED, CONGRESS HAS THE POWER TO LIFT THE STATE'S COMMON-LAW
IMMUNITY FROM SUIT INSOFAR AS THAT IMMUNITY CONFLICTS WITH THE
REGULATORY AUTHORITY CONFERRED UPON IT IN THE COMMERCE CLAUSE. 
CONGRESS HAS DONE SO WITH RESPECT TO THESE STATE EMPLOYEES IN ITS 1966
AMENDMENTS TO THE FLSA; BY THOSE AMENDMENTS, CONGRESS CREATED IN THESE
EMPLOYEES A FEDERAL RIGHT TO RECOVER FROM THE STATE COMPENSATION OWING
UNDER THE ACT.  WHILE CONSTITUTIONAL LIMITATIONS UPON THE FEDERAL
JUDICIAL POWER BAR A FEDERAL COURT ACTION BY THESE EMPLOYEES TO ENFORCE
THEIR RIGHTS, THE COURTS OF THE STATE NEVERTHELESS HAVE AN INDEPENDENT
CONSTITUTIONAL OBLIGATION TO ENTERTAIN EMPLOYEE ACTIONS TO ENFORCE
THOSE RIGHTS.  SEE TESTA V. KATT, 330 U.S. 386 (1947).  SEE ALSO
GENERAL OIL CO. V. CRAIN, 209 U.S. 211 (1908).  FOR MISSOURI HAS COURTS
OF GENERAL JURISDICTION COMPETENT TO HEAR SUITS OF THIS CHARACTER, /13/
AND THE JUDGES OF THOSE COURTS ARE CO-EQUAL PARTNERS WITH THE MEMBERS
OF THE FEDERAL JUDICIARY IN THE ENFORCEMENT OF FEDERAL LAW AND THE
FEDERAL CONSTITUTION, SEE MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304, 339
- 340 (1816).  THUS, SINCE FEDERAL LAW STANDS AS THE SUPREME LAW OF THE
LAND, THE STATE'S COURTS ARE OBLIGED TO ENFORCE IT, EVEN IF IT
CONFLICTS WITH STATE POLICY, SEE TESTA V. KATT, SUPRA, AT 392 - 394;
SECOND EMPLOYERS'  LIABILITY CASES, 223 U.S. 1, 57 - 58 (1912). 

I SEE OUR DECISION TODAY, THEN, AS NOTHING MORE THAN A REGULATION OF
THE FORUM IN WHICH THESE PETITIONERS MAY SEEK A REMEDY FOR ASSERTED
DENIAL OF THEIR RIGHTS UNDER THE FLSA.  AT FIRST BLUSH, IT MAY SEEM
HYPERTECHNICAL TO SAY THAT THESE PETITIONERS ARE ENTITLED PERSONALLY TO
ENFORCE THEIR FEDERAL RIGHTS AGAINST THE STATE IN A STATE FORUM RATHER
THAN IN A FEDERAL FORUM.  IF THAT BE SO, I THINK IT IS A
HYPERTECHNICALITY THAT HAS LONG BEEN UNDERSTOOD TO BE A PART OF THE
TENSION INHERENT IN OUR SYSTEM OF FEDERALISM. 

[[DFN 

/1/  29 U.S.C. ^^ 201 - 219. 

/2/  SEE ANTE, AT 285. 

/3/  SEE JAFFE, SUITS AGAINST GOVERNMENTS AND OFFICERS:  SOVEREIGN
IMMUNITY, 77 HARV. L. REV. 1, 2 - 21 (1963). 

/4/  SEE ALSO ^ 3(R), 29 U.S.C. ^ 203(R). 

/5/  SEE ALSO S. REP. NO. 1487, 89TH CONG., 2D SESS., 8 (1966),
WHICH DESCRIBED ONE OF THE PURPOSES OF THE 1966 AMENDMENTS AS BEING "TO
MAKE PLAIN THE INTENT TO BRING UNDER THE COVERAGE OF THE ACT EMPLOYEES
OF HOSPITALS AND RELATED INSTITUTIONS, SCHOOLS FOR PHYSICALLY OR
MENTALLY HANDICAPPED OR GIFTED CHILDREN, OR INSTITUTIONS OF HIGHER
EDUCATION, WHETHER OR NOT ANY OF THESE HOSPITALS, SCHOOLS, OR
INSTITUTIONS ARE PUBLIC OR PRIVATE OR OPERATED FOR PROFIT OR NOT FOR
PROFIT." 

/6/  SECTION 16(B), 29 U.S.C. ^ 216(B), PROVIDES IN RELEVANT PART: 

"ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF . . . THIS ACT SHALL BE
LIABLE TO THE EMPLOYEE OR EMPLOYEES AFFECTED IN THE AMOUNT OF THEIR
UPAID MINIMUM WAGES, OR THEIR UNPAID OVERTIME COMPENSATION, AS THE CASE
MAY BE, AND IN AN ADDITIONAL EQUAL AMOUNT AS LIQUIDATED DAMAGES." 

/7/  SEE THE FEDERALIST NO. 81 (HAMILTON); HANS V. LOUISIANA, 134
U.S. 1, 12 - 14 (1890); 1 C. WARREN, THE SUPREME COURT IN UNITED STATES
HISTORY 91 (REV. ED. 1937); CULLISON, INTERPRETATION OF THE ELEVENTH
AMENDMENT, 5 HOUSTON L. REV. 1, 6 - 9 (1967). 

/8/  MY BROTHER BRENNAN, IN DISSENT, SUGGESTS THAT THIS CASE
INVOLVES ONLY A QUESTION OF SOVEREIGN IMMUNITY AND DOES NOT INVOLVE ANY
QUESTION AS TO THE LIMITS OF THE FEDERAL JUDICIAL POWER UNDER ART. III
AND THE ELEVENTH AMENDMENT.  HE CONSIDERS THIS THEORY TO BE ENTIRELY
CONSISTENT WITH THE COURT'S SEMINAL DECISION IN HANS LOUISIANA, SUPRA.
AS ALREADY INDICATED, THERE THE PRIVATE PARTY ATTEMPTED TO SUE HIS OWN
STATE IN FEDERAL COURT ON THE BASIS OF THE CONTRACT CLAUSE, NOT ON THE
BASIS OF A CONGRESSIONALLY CREATED CAUSE OF ACTION.  THE COURT
CONCLUDED THAT THE STATE WAS IMMUNE FROM SUCH A SUIT IN FEDERAL COURT,
ABSENT CONSENT.  APPARENTLY, MY BROTHER BRENNAN'S VIEW IS THAT THE
RESULT IN HANS WAS DUE TO THE FACT THAT, UNLIKE IN THE PRESENT CASE,
NOTHING HAD OCCURRED TO LIFT THE STATE'S COMMON-LAW IMMUNITY.  BUT SUCH
A READING SEEMS TO ME AT ODDS WITH HIS THEORY THAT AT THE TIME THE
UNION WAS FORMED THE STATES SURRENDERED THAT PORTION OF THEIR
SOVEREIGNTY WHICH CONFLICTED WITH THE SUPREME FEDERAL POWERS.  FOR IF
THE ONLY RELEVANT ISSUE IN HANS WAS THE STATE'S COMMON-LAW IMMUNITY,
SUCH A VIEW WOULD SEEM TO COMPEL THE CONCLUSION THAT THE STATES HAD
ALSO PRO TANTO SURRENDERED THEIR COMMON-LAW IMMUNITY WITH RESPECT TO
ANY CLAIM UNDER THE CONTRACT CLAUSE.  AFTER ALL, THE ONLY DIFFERENCE
BETWEEN THE CONTRACT CLAUSE AND CONGRESSIONALLY CREATED CAUSES OF
ACTION IS THAT THE CONTRACT CLAUSE IS SELF-ENFORCING, SEE, E. G.,
STURGES V. CROWNINSHIELD, 4 WHEAT.  122, 197 - 200 (1819); IT REQUIRES
NO CONGRESSIONAL ACT TO MAKE ITS GUARANTEE ENFORCEABLE IN A JUDICIAL
SUIT.  IT SEEMS TO ME A STRANGE HIERARCHY THAT WOULD PROVIDE A GREATER
OPPORTUNITY TO ENFORCE CONGRESSIONALLY CREATED RIGHTS THAN
CONSTITUTIONALLY GUARANTEED RIGHTS IN FEDERAL COURT.  YET MY BROTHER
BRENNAN, GIVEN HIS THEORY OF WAIVER OF COMMON-LAW IMMUNITY PLUS HIS
THEORY THAT NO CONSTITUTIONAL LIMITATION UPON THE EXERCISE OF THE
FEDERAL JUDICIAL POWER EXISTS IN THE CONTEXT OF A SUIT BROUGHT AGAINST
A STATE BY ONE OF ITS CITIZENS, IS FORCED EITHER TO THIS ANOMALOUS
POSITION OR ELSE TO THE ADMISSION THAT HANS WAS INCORRECTLY DECIDED. 
HE APPARENTLY CHOOSES THE FORMER. 

HOWEVER, IF THE ISSUE OF THE LIMITS OF THE JUDICIAL POWER, AS WELL
AS OF COMMON-LAW IMMUNITY, IS CONSIDERED TO BE RELEVANT IN CASES SUCH
AS HANS AND THIS CASE, THE DECISION IN HANS IS SENSIBLY UNDERSTOOD AS
RESTING ON THE FORMER BASIS ALONE.  FOR, ALTHOUGH THE STATE'S COMMON
LAW IMMUNITY MAY HAVE BEEN NO DEFENSE TO A CONTRACT CLAUSE CLAIM, THE
STATE HAD NOT CONSENTED TO SUIT IN FEDERAL COURT JUDICIAL POWER --
REGARDLESS OF THE SOURCE OF THE FEDERAL CLAIM.  THUS, THERE SEEMS TO ME
LITTLE BASIS FOR DOUBTING THAT HANS RESTED UPON CONSIDERATIONS AS TO
CONSTITUTIONAL LIMITATIONS ON THE REACH OF THE FEDERAL JUDICIAL POWER,
A VIEW CONFIRMED BY THE DECISION'S LENGTHY ANALYSIS OF THE
CONSTITUTIONAL DEBATES SURROUNDING ART. III, SEE 134 U.S., AT 12 - 14,
AND BY SUBSEQUENT DECISIONS OF THIS COURT, SEE, E. G., EX PARTE NEW
YORK, NO. 1, 256 U.S. 490, 497 (1921); DUHNE V. NEW JERSEY, 251 U.S.
311, 313 (1920); GEORGIA RAILROAD & BANKING CO. V. REDWINE, 342 U.S.
299, 304 N. 13 (1952). 

/9/  OF COURSE, SUITS BROUGHT IN FEDERAL COURT AGAINST STATE
OFFICERS ALLEGEDLY ACTING UNCONSTITUTIONALLY PRESENT A DIFFERENT
QUESTION, SEE EX PARTE YOUNG, 209 U.S. 123 (1908).  LIKEWISE, SUITS
BROUGHT IN FEDERAL COURT BY THE UNITED STATES AGAINST STATES ARE WITHIN
THE COGNIZANCE OF THE FEDERAL JUDICIAL POWER, FOR "(THE SUBMISSION TO
JUDICIAL SOLUTION OF CONTROVERSIES ARISING BETWEEN THESE TWO
GOVERNMENTS, 'EACH SOVEREIGN WITH RESPECT TO THE OBJECTS COMMITTED TO
IT, AND EITHER SOVEREIGN WITH RESPECT TO THE OBJECTS COMMITTED TO THE
OTHER,' . . . BUT BOTH SUBJECT TO THE SUPREME LAW OF THE LAND, DOES NO
VIOLENCE TO THE INHERENT NATURE OF SOVEREIGNTY," UNITED STATES V.
TEXAS, 143 U.S. 621, 646 (1892).  SEE ALSO UNITED STATES V. NORTH
CAROLINA, 136 U.S. 211 (1890).  MOREOVER, IT IS UNAVOIDABLE THAT IN A
SUIT BETWEEN A STATE AND THE UNITED STATES ONE SOVEREIGN WILL HAVE TO
APPEAR IN THE COURTS OF THE OTHER. 

/10/  MY BROTHER BRENNAN ARGUES IN HIS DISSENT THAT RECOGNITION OF A
STATE'S POWER TO CONSENT TO SUIT IN FEDERAL COURT IS INCONSISTENT WITH
ANY VIEW THAT THE IMPEDIMENT TO PRIVATE FEDERAL COURT SUITS AGAINST A
STATE HAS CONSTITUTIONAL ROOTS IN THE LIMITED NATURE OF THE FEDERAL
JUDICIAL POWER.  HE IS, OF COURSE, CORRRECT WHEN HE POINTS OUT THAT, AS
A RULE, POWER TO HEAR AN ACTION CANNOT BE CONFERRED ON A FEDERAL
JUDICIAL POWER.  HE IS, OF COURSE, CORRECT WHEN HE POINTS OUT THAT, AS
A RULE, POWER TO HEAR AN ACTION CANNOT BE CONFERRED ON A FEDERAL COURT
BY CONSENT.  AND, IT MAY BE THAT THE RECOGNIZED POWER OF STATES TO
CONSENT TO THE EXERCISE OF FEDERAL JUDICIAL POWER OVER THEM IS
ANOMALOUS IN LIGHT OF PRESENT-DAY CONCEPTS OF FEDERAL JURISDICTION. 
YET, IF THIS IS THE CASE, IT IS AN ANOMALY THAT IS WELL ESTABLISHED AS
A PART OF OUR CONSTITUTIONAL JURISPRUDENCE.  FOR THERE ARE DECISIONS BY
THE COURT -- INCLUDING AT LEAST ONE JOINED BY MY BROTHER BRENNAN --
CLEARLY HOLDING THAT CONSTITUTIONAL LIMITATIONS UPON THE EXERCISE OF
THE FEDERAL JUDICIAL POWER OVER PRIVATE SUITS BROUGHT AGAINST A STATE
MAY BE WAVIED BY THE STATE. 

THUS, IN CLARK V. BARNARD, 108 U.S. 436, 447 (1883), THE COURT
REJECTED RHODE ISLAND'S ARGUMENT THAT A CLAIM MADE AGAINST IT IN
FEDERAL COURT BY A CONNECTICUT CORPORATION WAS SPECIFICALLY BARRED BY
THE ELEVENTH AMENDMENT IN LIGHT OF THE FACT THAT INITIALLY THE STATE
VOLUNTARILY INTERVENED IN THE ACTION TO ASSERT A CLAIM OF ITS OWN AND
THEREBY CONSENTED.  SIMILARLY, IN PETTY V. TENNESSEE-MISSOURI BRIDGE
COMM'N, 359 U.S. 275 (1959), WHICH INVOLVED A TORT SUIT BROUGHT IN
FEDERAL COURT BY A RESIDENT OF TENNESSEE (SEE 254 F.2D 857, 862 (CA8
1958)) AGAINST A BI-STATE CORPORATION FORMED BY MISSOURI AND TENNESSEE,
THE COURT TREATED THE SUIT AS ONE AGAINST THE STATES, BUT REJECTED
THEIR ARGUMENT THAT THE SUIT WAS PROHIBITED BY THE ELEVENTH AMENDMENT. 
THE COURT FOUND THAT THE STATES HAD WAIVED THEIR IMMUNITY FROM FEDERAL
COURT SUIT IN THE COMPACT BY WHICH THE BI-STATE CORPORATION WAS
FORMED.  GIVEN THE CITIZENSHIP OF THE PLAINTIFF IN PETTY, MY BROTHER
BRENNAN, WITH HIS LITERALIST VIEW OF THE ELEVENTH AMENDMENT, MIGHT SAY
THAT AS TO TENNESSEE THERE WAS NO ISSUE OF CONSTITUTIONAL MAGNITUDE AND
THAT THE STATE HAD SIMPLY WAIVED ITS COMMON-LAW IMMUNITY.  BUT INSOFAR
AS MISSOURI WAS ALSO HELD TO HAVE CONSENTED TO FEDERAL COURT SUIT, THE
COURT NECESSARILY DEALT WITH THE LIMITS OF THE FEDERAL JUDICIAL POWER
SINCE, AS TO MISSOURI, THE SUIT WAS WITHIN THE LITERAL LANGUAGE OF THE
ELEVENTH AMENDMENT.  SEE ALSO MISSOURI V. FISKE, 290 U.S. 18 (1933). 
IN SHORT, I CANNOT ACCEPT MY BROTHER BRENNAN'S LITERALIST APPROACH TO
THE ELEVENTH AMENDMENT IN LIGHT OF PIOR DECISIONS, AND CERTAINLY HIS
POSITION IS NOT AIDED BY THE CLEARLY ERRONEOUS SUGGESTION THAT ANY
CONSTITUTIONAL LIMITATION ON THE EXERCISE OF THE FEDERAL JUDICIAL POWER
OVER PRIVATE SUITS AGAINST STATES WOULD CONSTITUTE AN ABSOLUTE BAR TO
THE PROSECTION OF SUCH SUITS IN FEDERAL COURT. 

/11/  WHETHER I WOULD REACH A DIFFERENT CONCLUSION WITH RESPECT TO A
CASE OF THIS CHARACTER IF THE STATE HAD COMMENCED OPERATION OF THE
RELEVANT FACILITIES AFTER PASSAGE OF THE 1966 AMENDMENTS IS A QUESTION
THAT I NEED NOT NOW DECIDE.  CERTAINLY, I DO NOT ACCEPT THE COURT'S
EFFORTS TO DISTINGUISH THIS CASE FROM PARDEN ON THE BASIS THAT THERE WE
DEALT WITH A "PROPRIETARY" FUNCTION, WHEREAS HERE WE DEAL WITH A
"GOVERNMENTAL" FUNCTION.  SEE ANTE, AT 293 - 285.  I HAD THOUGHT WE HAD
ESCAPED SUCH UNENLIGHTENING CHARACTERIZATIONS OF STATES'  ACTIVITIES. 
CF. MARYLAND V. WIRTZ, 392 U.S. 183, 195 (1968); UNITED STATES V.
CALIFORNIA, 297 U.S. 175, 183 - 184 (1936). 

/12/  UNLIKE THE COURT, I WOULD NOT PRETEND TO SUGGEST THAT THE
POWER GIVEN THE SECRETARY OF LABOR IN ^ 17 OF THE FLSA, 29 U.S.C. ^
217, TO SEEK RESTITUTION ON BEHALF OF EMPLOYEES PROVIDES AN ADEQUATE
MECHANISM FOR SAFEGUARDING THE INTERESTS OF STATE EMPLOYEES SUCH AS
PETITIONERS.  THE UNITED STATES, AS AMICUS CURIAE, POINTS OUT:  "IN
1971, . . . THE (FLSA) COVERED 45.4 MILLION EMPLOYEES AND NEARLY 2
MILLION ESTABLISHMENTS; 2.7 MILLION OF THESE EMPLOYEES AND 118,000 OF
THESE ESTABLISHMENTS WERE IN THE SECTOR OF STATE AND LOCAL GOVERNMENT
EMPLOYMENT, INCLUDING STATE SCHOOLS AND HOSPITALS.  YET, LESS THAN 4
PERCENT OF THESE ESTABLISHMENTS CAN BE INVESTIGATED BY THE SECRETARY
EACH YEAR."  BRIEF FOR UNITED STATES AS AMICUS CURIAE 22 - 23
(FOOTNOTES OMITTED).  IT IS OBVIOUSLY UNREALISTIC TO EXPECT GOVERNMENT
ENFORCEMENT ALONE TO BE SUFFICIENT. 

[[DOP 

MR. JUSTIC BRENNAN, DISSENTING. 

I DISSENT, PARDEN V. TERMINAL R. CO., 377 U.S. 184 (1964), COMPELS
REVERSAL OF THE JUDGMENT OF THE COURT OF APPEALS IN THIS CASE AND
NEITHER THE COURT'S OPINION NOR MY BROTHER MARSHALL'S OPINION
CONCURRING IN THE RESULT IS PERSUASIVE THAT IT DOES NOT. 

        I 

ESSENTIALLY, THE COURT PURPORTS ONLY TO DISTINGUISH PARDEN.  THERE
IS, OF COURSE, THE DISTINCTION THAT THE LAWSUITS WERE BROUGHT UNDER
DIFFERENT STATUTES.  THE LAWSUIT IN PARDEN WAS BROUGHT UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT (FELA), 45 U.S.C. ^^ 51 - 60, AGAINST
THE STATE OF ALABAMA, OWNER AND OPERATOR OF A RAILROAD ENGAGED IN
INTERSTATE COMMERCE, BY CITIZENS OF ALABAMA IN THE EMPLOY OF THE
RAILROAD.  THE SUIT IN THE PRESENT CASE WAS BROUGHT UNDER ^ 16(B) OF
THE FAIR LABOR STANDARDS ACT (FLSA), 29 U.S.C. ^^ 201 - 219, AS AMENDED
IN 1966, PUB. L. 89 - 601, 80 STAT. 830, AGAINST THE STATE OF MISSOURI,
OPERATOR OF HOSPITALS AND OTHER INSTITUTIONS COVERED BY THAT ACT, BY
CITIZENS OF MISSOURI EMPLOYED IN SUCH INSTITUTIONS.  BUT THE LAWSUITS
HAVE IN COMMON THAT EACH IS AN ACTION FOR DAMAGES IN FEDERAL COURT
BROUGHT AGAINST A STATE BY CITIZENS OF THE STATE IN ITS EMPLOY UNDER
THE AUTHORITY OF A REGULATORY STATUTE FOUNDED ON THE COMMERCE CLAUSE. 
PARDEN HELD THAT A FEDERAL COURT DETERMINATION OF SUCH SUITS CANNOT BE
PRECLUDED BY THE DOCTRINE OF SOVEREIGN IMMUNITY BECAUSE THE STATES
SURRENDERED THEIR SOVEREIGNTY TO THAT EXTENT WHEN THEY GRANTED CONGRESS
THE POWER TO REGULATE COMMERCE.  377 U.S., AT 191.  THAT HOLDING FITS
PRECISELY THIS FLSA LAWSUIT AND COMPELS REVERSAL OF THE JUDGMENT OF THE
COURT OF APPEALS.  I TURN, THEN, TO THE REASONS FOR MY DISAGREEMENT
WITH THE ARGUMENTS UPON WHICH THE COURT RESTS ITS CONTRARY CONCLUSION. 

PARDEN PRESENTED A QUESTION OF FIRST IMPRESSION, NAMELY, WHETHER A
STATE'S OPERATION OF A CONGRESSIONALLY REGULATED ENTERPRISE IN
INTERSTATE COMMERCE HAS THE CONSEQUENCE, WITHOUT MORE, THAT THE STATE
BECOMES SUBJECT TO A CONGRESSIONALLY IMPOSED CONDITION OF AMENABILITY
TO SUIT, OR WHETHER THAT CONSEQUENCE SHOULD FOLLOW ONLY WHEN CONGRESS
HAS EXPRESSLY DECLARED THAT ANY STATE WHICH UNDERTAKES REGULABLE
CONDUCT WILL BE DEEMED THEREBY TO HAVE WAIVED ITS IMMUNITY.  PARDEN
HELD THAT BY OPERATING THE RAILROAD, ALABAMA BECAME AMENABLE TO SUITS
UNDER THE FELA.  PARDEN IS DISTINGUISHED ON THE GROUND THAT, WHATEVER
MAY HAVE BEEN THE CASE OF A SUIT UNDER THE FELA, IN THIS SUIT UNDER THE
FLSA THE STATE MAY ASSERT THE DEFENSE OF SOVEREIGN IMMUNITY UNLESS
CONGRESS HAS FORECLOSED ITS ASSERTION BY CLEAR LANGUAGE IN THE
STATUTE.  BUT THAT VERY ARGUMENT WAS REJECTED IN PARDEN WHEN ADVANCED
BY THE DISSENTERS THERE AS THE PRINCIPLE THAT SHOULD CONTROL IN ALL
THESE CASES.  FOR THE PARDEN DISSENT ALSO ARGUED THAT THE IMMUNITY HAD
NOT BEEN SURRENDERED WHEN THE STATES FORMED THE CONSTITUTION AND SHOULD
BE DISALLOWED "(ONLY WHEN CONGRESS HAS CLEARLY CONSIDERED THE PROBLEM
AND EXPRESSLY DECLARED THAT ANY STATE WHICH UNDERTAKES GIVEN REGULABLE
CONDUCT WILL BE DEEMED THEREBY TO HAVE WAIVED ITS IMMUNITY . . ."  377
U.S., AT 198 - 199.  IN REJECTING THAT ARGUMENT, PARDEN HELD THAT THE
STATES HAD SURRENDERED THE PROTECTION OF SOVEREIGN IMMUNITY IN FEDERAL
COURT SUITS AUTHORIZED BY CONGRESS PURSUANT TO THE STATES' GRANT TO
CONGRESS OF THE COMMERCE POWER.  THUS, UNDER PARDEN, THERE CAN EXIST NO
BASIS FOR TODAY'S INQUIRY "WHETHER CONGRESS HAS BROUGHT THE STATES TO
HEEL, IN THE SENSE OF LIFTING THEIR IMMUNITY FROM SUIT IN A FEDERAL
COURT," ANTE, AT 283, SINCE PARDEN HELD THAT, BECAUSE OF ITS SURRENDER,
NO IMMUNITY EXISTS THAT CAN BE THE SUBJECT OF A CONGRESSIONAL
DECLARATION OR A VOLUNTARY WAIVER.  THERE CAN BE ROOM FOR SUCH INQUIRY
ONLY UPON ACCEPTANCE OF THE REJECTED PREMISE UNDERLYING THE PARDEN
DISSENT, NAMELY, THAT THE STATES IN FORMING THE UNION DID NOT SURRENDER
THEIR IMMUNITY AS SUCH TO THAT EXTENT, BUT ONLY SUBJECTED THEIR
IMMUNITY TO CONGRESSIONAL CONTROL.  THE COURT'S REJECTION OF THAT
PREMISE IS EXPLICIT IN PARDEN'S HOLDING THAT: 

"BY ADOPTING AND RATIFYING THE COMMERCE CLAUSE, THE STATES EMPOWERED
CONGRESS TO CREATE SUCH A RIGHT OF ACTION AGAINST INTERSTATE RAILROADS;
BY ENACTING THE FELA IN THE EXERCISE OF THIS POWER, CONGRESS
CONDITIONED THE RIGHT TO OPERATE A RAILROAD IN INTERSTATE COMMERCE UPON
AMENABILITY TO SUIT IN FEDERAL COURT AS PROVIDED BY THE ACT; BY
THEREAFTER OPERATING A RAILROAD IN INTERSTATE COMMERCE, ALABAMA MUST BE
TAKEN TO HAVE ACCEPTED THAT CONDITION AND THUS TO HAVE CONSENTED TO
SUIT."  377 U.S., AT 192. 

IN OTHER WORDS, THE PARDEN HOLDING, ALTHOUGH PERHAPS NOT
UNAMBIGUOUSLY PHRASED, WAS THAT WHEN CONGRESS CONDITIONS ENGAGEMENT IN
A REGULATED INTERSTATE ENTERPRISE UPON AMENABILITY TO SUIT, STATES THAT
ENGAGE IN SUCH ENTERPRISE DO NOT HAVE THE PROTECTION OF SOVEREIGN
IMMUNITY IN SUITS IN FEDERAL COURT ARISING FROM THEIR ENGAGEMENT,
BECAUSE BY SURRENDERING THEIR IMMUNITY TO THAT EXTENT WHEN THEY GRANTED
CONGRESS THE COMMERCE POWER, THE STATES IN EFFECT AGREED THAT CONGRESS
MIGHT SUBJECT THEM TO SUITS IN FEDERAL COURT ARISING OUT OF THEIR
ENGAGEMENT IN ENTERPRISES REGULATED BY CONGRESS IN STATUTES SUCH AS THE
FELA AND THE FLSA. 

HOWEVER, EVEN ON THE COURT'S PREMISE THAT THE GRANT TO CONGRESS OF
THE COMMERCE POWER DID NO MORE THAN EMPOWER CONGRESS EXPRESSLY TO
DISALLOW THE IMMUNITY, CONGRESS MUST BE TAKEN TO HAVE DISALLOWED IT IN
^ 16(B) SUITS SINCE CONGRESS PLAINLY STATED ITS INTENTION IN ENACTING
THE 1966 AMENDMENTS TO PUT THE STATES "ON THE SAME FOOTING AS OTHER
EMPLOYERS" IN SUCH SUITS.  SINCE PARDEN HAD BEEN DECIDED TWO YEARS
BEFORE THE AMENDMENTS WERE ADOPTED, CONGRESS UNDERSTANDABLY HAD NO
REASON EXPRESSLY TO DECLARE THE DISALLOWANCE SINCE NO IMMUNITY EXISTED
TO BE DISALLOWED.  BUT CONGRESS' INTENTION TO MAKE THE STATES AMENABLE
TO ^ 16(B) SUITS CLEARLY APPEARS IN THE LEGISLATIVE HISTORY OF THE
AMENDMENTS.  /1/  INDEED, THIS CASE IS EVEN MORE COMPELLING THAN PARDEN
ON THAT SCORE FOR THE FELA CONTAINS NO PROVISION EXPRESSLY INCLUDING
EMPLOYEES OF PUBLIC RAILROADS UNDER THE ACT BUT ONLY A GENERAL
PROVISION MAKING THE FELA APPLICABLE TO "EVERY" COMMON CARRIER BY
RAILROAD IN INTERSTATE COMMERCE.  377 U.S., AT 187 - 188.  IN CONTRAST,
CONGRESS DIRECTLY ADDRESSED THE QUESTION WHETHER FULLY TO EXTEND THE
FLSA, INCLUDING THE PROVISION OF ^ 16(B), TO THE PUBLIC EMPLOYEES OF
THE DEFINED PUBLIC INSTITUTIONS:  THE 1966 AMENDMENTS THUS ENACT A
CONSIDERED CONGRESSIONAL DECISION TO EXTEND THE BENEFITS OF THE FLSA
ENJOYED BY EMPLOYEES OF PRIVATE EMPLOYERS TO EMPLOYEES OF THE STATES,
OR POLITICAL SUBDIVISIONS THEREOF, EMPLOYED IN THE INSTITUTIONS COVERED
BY THE AMENDMENTS.  I FIND NO SUPPORT WHATEVER IN EITHER THE TEXT OF
THE AMENDMENTS OR THEIR LEGISLATIVE HISTORY FOR THE ARGUMENTS MADE BY
THE COURT FOR ITS CONTRARY CONCLUSION. 

FIRST, THE COURT OBSERVES THAT ^ 16(B) WAS LEFT UNDISTURBED WHEN THE
AMENDMENTS WERE ADOPTED.  BUT ^ 16(B) IN TERMS APPLIES TO "(ANY
EMPLOYER" COVERED BY THE ACT.  THE EXTENSION OF COVERAGE TO EMPLOYERS
OF PUBLIC INSTITUTIONS MADE BY THE AMENDMENTS WAS ONLY THE LATEST OF
SEVERAL EXTENSIONS MADE SINCE ^ 16(B) FIRST APPEARED IN THE FLSA AS
INITIALLY ADOPTED.  OBVIOUSLY, THE WORDS "(ANY EMPLOYER" BLANKET ALL
FLSA EMPLOYERS AND IT IS ONLY THE SHEEREST SORT OF RITUALISM TO SUGGEST
THAT CONGRESS EXCLUDED THE STATES FROM ^ 16(B) SUITS BY NOT EXPRESSLY
REFERRING TO THE STATES IN ^ 16(B). 

SECOND, THE COURT ARGUES THAT ALABAMA'S OPERATION OF THE RAILROAD IN
PARDEN WAS "PROPRIETARY" IN NATURE AND MISSOURI'S OPERATION OF
HOSPITALS AND SCHOOLS IS "GOVERNMENTAL" IN CHARACTER.  THAT DISTINCTION
DOES NOT, HOWEVER, SUPPORT THE CONCLUSION THAT CONGRESS FAILED WITH
SUFFICIENT CLARITY TO SUBJECT STATES TO ^ 16(B) SUITS, MARYLAND V.
WIRTZ, 392 U.S. 183 (1968), WHICH SUSTAINED THE CONSTITUTIONALITY OF
THE 1966 AMENDMENTS, CONSTRUED THE REACH OF THE AMENDMENTS AS COVERING
PUBLIC ENTERPRISES HAVING BOTH CHARACTERISTICS, AND EXPRESSLY HELD
"THAT THE FEDERAL GOVERNMENT, WHEN ACTING WITHIN A DELEGATED POWER, MAY
OVERRIDE COUNTERVAILING STATE INTERESTS WHETHER THESE BE DESCRIBED AS
'GOVERNMENTAL' OR 'PROPRIETARY' IN CHARACTER."  ID., AT 195.  INDEED,
THE 1966 AMENDMENTS THEMSELVES PROVIDE THAT THE PUBLIC ENTERPRISES,
WHETHER FOR PROFIT OR NOT FOR PROFIT, "SHALL BE DEEMED TO BE ACTIVITIES
PERFORMED FOR A BUSINESS PURPOSE."  29 U.S.C. ^ 203(R).  /2/ 

THIRD, THE COURT ARGUES THAT THE AMENDMENTS MAY SADDLE THE STATES
WITH "ENORMOUS FISCAL BURDENS," AND THAT "CONGRESS, ACTING RESPONSIBLY,
WOULD NOT BE PRESUMED TO TAKE SUCH ACTION SILENTLY."  ANTE, AT 284,
285.  NOT ONLY IS THE ANCESTRY OF THE SUPPOSED PRESUMPTION NOT
DIVULGED, BUT THE COURT OFFERS NO EXPLANATION HOW IT OVERBEARS THE
CLEARLY DECLARED CONGRESSIONAL PURPOSE TO SUBJECT STATES TO ^ 16(B)
SUITS.  MOREOVER, THIS ARGUMENT TRACKS THE REJECTED ARGUMENT OF THE
DISSENT IN MARYLAND V. WIRTZ THAT THE 1966 AMENDMENTS "OVERWHELM STATE
FISCAL POLICY"  AND THEREFORE OFFEND "CONSTITUTIONAL PRINCIPLES OF
FEDERALISM" IN THAT THEY ALLOW "THE NATIONAL GOVERNMENT (TO) DEVOUR THE
ESSENTIALS OF STATE SOVEREIGNTY, THOUGH THAT SOVEREIGNTY IS ATTESTED BY
THE TENTH AMENDMENT."  392 U.S., AT 203 - 205. 

FOURTH, THE COURT ARGUES THAT THE AUTHORITY OF THE SECRETARY OF
LABOR UNDER ^ 16(C) TO SUE FOR UNPAID MINIMUM WAGES OR UNPAID OVERTIME,
AND THE SECRETARY'S AUTHORITY UNDER ^ 17 TO ENJOIN VIOLATIONS OF THE
ACT, "SUGGEST THAT SINCE PRIVATE ENFORCEMENT OF THE ACT WAS NOT A
PARAMOUNT OBJECTIVE (OF CONGRESS), DISALLOWANCE OF SUITS BY STATE
EMPLOYEES AND REMITTING THEM TO RELIEF THROUGHT THE SECRETARY OF LABOR
MAY EXPLAIN WHY CONGRESS WAS SILENT AS TO WAIVER OF SOVEREIGN IMMUNITY
OF THE STATES."  ANTE, AT 286.  AGAIN THE COURT IGNORES THE EVIDENCE IN
THE TEXT AND LEGISLATIVE HISTORY OF THE 1966 AMENDMENTS THAT CONGRESS
NOT ONLY WAS NOT "SILENT" BUT SPOKE LOUDLY ITS PURPOSE TO DENY THE
STATES THE PROTECTION OF SOVEREIGN IMMUNITY.  IN ANY EVENT, THE PREMISE
THAT "PRIVATE ENFORCEMENT OF THE ACT WAS NOT A PARAMOUNT OBJECTIVE" IS
WHOLLY UNFOUNDED.  FOR THE ACT'S LEGISLATIVE HISTORY ESTABLISHES
CONCLUSIVELY THAT CONGRESS PLACED GREAT RELIANCE UPON THE PRIVATE
LAWSUIT AS AN IMPORTANT TOOL FOR ACHIEVING THE ACT'S OBJECTIVES.  /3/
TO BUTTRESS THIS, THE SOLICITOR GENERAL HAS EMPHASIZED IN HIS AMICUS
CURIAE BRIEF THAT WITHOUT THE PRIVATE LAWSUIT, THE PURPOSE OF THE 1966
AMENDMENTS CANNOT BE ACHIEVED, SINCE THE SECRETARY OF LABOR HAS NEITHER
STAFF NOR RESOURCES TO TAKE ON THE ENORMOUS NUMBER OF CLAIMS COUNTED
UPON TO BE VINDICATED IN PRIVATE ACTIONS.  IN ADDITION, IF STATE LAW
MAY PRECLUDE ACTIONS IN STATE COURTS, /4/  THE SOLICITOR GENERAL
OBSERVES: 

"THE UNAVOIDABLE RESULT IS THAT STATE EMPLOYEES OF SCHOOLS AND
HOSPITALS MAY FIND THEMSELVES IN PRECISELY THE SAME SITUATION AS THE
EMPLOYEES IN PARDEN:  IF THEY ARE UNABLE TO SUE THEIR STATE EMPLOYER
UNDER SECTION 16(B) THEY MAY BE, FOR ALL PRACTICAL PURPOSES, LEFT IN
THE POSITION OF HAVING A RIGHT WITHOUT A REMEDY . . ."  BRIEF FOR
UNITED STATES AS AMICUS CURIAE 23.  /5/ THE COURT ALSO ARGUES: 

"IN THIS CONNECTION, IT IS NOT AMISS TO NOTE THAT ^ 16(B) ALLOWS
RECOVERY BY EMPLOYEES, NOT ONLY OF THE AMOUNT OF UNPAID WAGES, BUT OF
AN EQUAL AMOUNT AS LIQUIDATED DAMAGES AND ATTORNEYS'  FEES.  IT IS ONE
THING, AS IN PARDEN, TO MAKE A STATE EMPLOYEE WHOLE; IT IS QUITE
ANOTHER TO LET HIM RECOVER DOUBLE AGAINST A STATE.  RECALCITRANT
PRIVATE EMPLOYERS MAY BE WHIPPED INTO LINE IN THAT MANNER.  BUT WE ARE
RELUCTANT TO BELIVE THAT CONGRESS IN PURSUIT OF A HARMONIOUS FEDERALISM
DESIRED TO TREAT THE STATES SO HARSHLY.  THE POLICY OF THE ACT SO FAR
AS THE STATES ARE CONCERNED IS WHOLLY SERVED BY ALLOWING THE DELICATE
FEDERAL-STATE RELATIONSHIP TO BE MANAGED THROUGH THE SECRETARY OF
LABOR."  ANTE, AT 286. 

HERE, AGAIN, THE COURT RELIES UPON THE REJECTED ARGUMENT OF THE
DISSENT IN MARYLAND V. WIRTZ THAT THE AMENDMENTS UNCONSTITUTIONALLY
"OVERWHELM STATE FISCAL POLICY."  IN ANY EVENT, THE PURPOSE OF DOUBLE
RECOVERY HAS NOT THE REMOTEST CONNECTION WITH ANY DESIGN OF CONGRESS
"IN PURSUIT OF A HARMONIOUS FEDERALISM."  ACTUALLY ITS PURPOSE IS, IN
THE COURT'S OWN WORDS:  "AS IN PARDEN, TO MAKE A STATE EMPLOYEE
WHOLE."  THAT WAS MADE CLEAR IN BROOKLYN SAVINGS BANK V. O'NEIL, 324
U.S. 697, 707 - 708 (1945): 

     "WE HAVE PREVIOUSLY HELD THAT THE LIQUIDATED DAMAGE PROVISION

IS NOT PENAL IN ITS NATURE BUT CONSTITUTES COMPENSATION FOR THE

  RETENTION OF A WORKMAN'S PAY WHICH MIGHT RESULT IN DAMAGES TOO

  OBSCURE AND DIFFICULT OF PROOF FOR ESTIMATE OTHER THAN BY

  LIQUIDATED DAMAGES.  OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S.

  572.  IT CONSTITUTES A CONGRESSIONAL RECOGNITION THAT FAILURE TO

  PAY THE STATUTORY MINIMUM ON TIME MAY BE SO DETRIMENTAL TO

  MAINTENANCE OF THE MINIMUM STANDARD OF LIVING 'NECESSARY FOR

  HEALTH, EFFICIENCY AND GENERAL WELL-BEING OF WORKERS' AND TO THE

  FREE FLOW OF COMMERCE, THAT DOUBLE PAYMENT MUST BE MADE IN THE

  EVENT OF DELAY IN ORDER TO INSURE RESTORATION OF THE WORKER TO

THAT MINIMUM STANDARD OF WELL-BEING.  EMPLOYEES RECEIVING LESS

  THAN THE STATUTORY MINIMUM ARE NOT LIKELY TO HAVE SUFFICIENT

  RESOURCES TO MAINTAIN THEIR WELL-BEING AND EFFICIENCY UNTIL SUCH

  SUMS ARE PAID AT A FUTURE DATE.  THE SAME POLICY WHICH FORBIDS

  WAIVER OF THE STATUTORY MINIMUM AS NECESSARY TO THE FREE FLOW OF

  COMMERCE REQUIRES THAT REPARATIONS TO RESTORE DAMAGE DONE BY SUCH

  FAILURE TO PAY ON TIME MUST BE MADE TO ACCOMPLISH CONGRESSIONAL

  PURPOSES." 

THE ANSWER TO THE ARGUMENT THAT WE SHOULD BE RELUCTANT TO BELIEVE
THAT CONGRESS "DESIRED TO TREAT THE STATES SO HARSHLY" IS THAT CONGRESS
EXTENDED THE FLSA TO THE STATES TO THE EXTENT OF THE 1966 AMENDMENTS
WITH FULL AWARENESS THAT IT WAS IMPOSING A FINANCIAL BURDEN.  AS WAS
COGENTLY SAID BY THE COURT OF APPEALS FOR THE TENTH CIRCUIT IN BRIGGS
V. SAGERS, 424 F.2D 130, 133 - 134 (1970): 

     "THE LEGISLATIVE HISTORY OF THE 1966 FLSA AMENDMENTS REFLECTS

  THAT PASSAGE WAS TO ATTAIN A 'MINIMUM STANDARD OF LIVING

  NECESSARY FOR HEALTH, EFFICIENCY, AND GENERAL WELL-BEING OF

  WORKERS . . . WITH ALL DELIBERATE SPEED CONSISTENT WITH THE

  POLICY OF THE ACT AND THE WELFARE OF THE AMERICAN PEOPLE.'  (S.

  REP. NO. 1487, 89TH CONG., 2D SESS., 3 (1966).)  THIS
DEMONSTRATES

TO OUR SATISFACTION THAT CONGRESS CONTEMPLATED THE FINANCIAL

  BURDEN THAT THE AMENDMENTS COULD CAUSE FOR THE STATES.  BUT THE

  OVERALL PURPOSE OF THE FLSA TACITLY SUGGESTS THAT THE IMPOSITION

  OF SUCH STRAIN IS OUTWEIGHED BY THE UNDERLYING POLICY OF THE

  ACT."  (EMPHASIS ADDED). 

FINALLY, THE COURT SUGGESTS THAT TO DENY THE EMPLOYEES A FEDERAL
FORUM WILL NOT LEAVE THEM WITHOUT A RIGHT OF ACTION FOR DAMAGES SINCE ^
16(B) AUTHORIZES SUITS IN "ANY COURT OF COMPETENT JURISDICTION," AND
"(ARGUABLY, THAT PERMITS SUIT IN THE MISSOURI COURTS."  ANTE, AT 287. 
I AM PUZZLED HOW THE COURT RECONCILES THE IMPLICATION THAT PETITIONERS
MIGHT MAINTAIN THEIR ^ 16(B) ACTION IN STATE COURT WITH ITS BASIC
HOLDING THAT ONLY "CLEAR" EXPRESSION BY CONGRESS CAN BE TAKEN AS
"LIFTING THE SOVEREIGNTY OF THE STATES AND PUTTING THE STATES ON THE
SAME FOOTING AS OTHER EMPLOYERS."  IBID.  BUT, IN ANY EVENT, PLAINTIFFS
IN PARDEN MIGHT ALSO HAVE SUED IN STATE COURTS SINCE FELA JURISDICTION
IS "CONCURRENT WITH THAT OF THE COURTS OF THE SEVERAL STATES," 45
U.S.C. ^ 56.  YET, WE HELD THAT THIS WAS IRRELEVANT TO THE ISSUE OF
AMENABILITY OF STATES TO FELA SUITS IN FEDERAL COURT SINCE "CONGRESS
DID NOT INTEND THIS LANGUAGE TO LIMIT THE JURISDICTION OF THE FEDERAL
COURTS, BUT MERELY TO PROVIDE AN ALTERNATIVE FORUM IN THE STATE
COURTS."  377 U.S., AT 190 N. 8. 

II 

CONGRESS CAN, OF COURSE, READILY REPAIR THE DEFICIENCY THE COURTS
FINDS TODAY IN THE FLSA SIMPLY BY AMENDING THE ACT EXPRESSLY TO DECLARE
THAT A STATE THAT ENGAGES IN AN ENTERPRISE COVERED BY THE 1966
AMENDMENTS SHALL BE AMENABLE TO SUIT UNDER ^ 16(B) IN FEDERAL COURT.  A
GREATER REASON FOR CONCERN THEREFORE, IS WITH THE COURT'S AND MY
BROTHER MARSHALL'S TREATMENT OF THE ELEVENTH AMENDMENT AND THE DOCTRINE
OF SOVEREIGN IMMUNITY AS CONSTITUTIONAL LIMITATIONS UPON THE POWER OF A
FEDERAL COURT TO ENTERTAIN A SUIT BROUGHT AGAINST A STATE BY ONE OF ITS
CITIZENS.  SINCE THE COURT'S TREATMENT DIFFERS FROM MY BROTHER
MARSHALL'S IN SUBSTANTIAL RESPECTS, I SHALL DISCUSS THE TWO
SEPARATELY.              III 

PARDEN REGARDED THE ELEVENTH AMENDMENT TO BE INAPPLICABLE TO SUITS
AGAINST A STATE BROUGHT BY ITS OWN CITIZENS IN FEDERAL COURT AND HELD
THAT WHETHER THE FELA SUIT WAS MAINTAINABLE TURNED ON THE AVAILABILITY
TO ALABAMA OF THE PROTECTION OF THE ANCIENT DOCTRINE OF SOVEREIGN
IMMUNITY.  YET THE COURT SAYS, ANTE, AT 284, THAT "(THE HISTORY AND
TRADITION OF THE ELEVENTH AMENDMENT INDICATE THAT BY REASON OF THAT
BARRIER A FEDERAL COURT IS NOT COMPETENT TO RENDER JUDGMENT AGAINST A
NONCONSENTING STATE."  ANY INTIMATION IN THAT STATEMENT THAT WE MAY
INFER FROM THE ELEVENTH AMENDMENT A "CONSTITUTIONAL IMMUNITY," ANTE, AT
285, PROTECTING STATES FROM ^ 16(B) SUITS BROUGHT IN FEDERAL COURT BY
ITS OWN CITIZENS, MUST BE REJECTED.  I EMPHATICALLY QUESTION, AS I
DEVELOP LATER, THAT SOVEREIGN IMMUNITY IS A CONSTITUTIONAL LIMITATION
UPON THE FEDERAL JUDICIAL POWER TO ENTERTAIN SUITS AGAINST STATES. 
INDEED, DESPITE SOME ASSUMPTIONS IN OPINIONS OF THIS COURT, I KNOW OF
NO CONCRETE EVIDENCE THAT THE FRAMERS OF THE AMENDMENT THOUGHT, LET
ALONE INTENDED, THAT EVEN THE AMENDMENT WOULD ENSCONCE THE DOCTRINE OF
SOVEREIGN IMMUNITY.  ON ITS FACE, THE AMENDMENT SAYS NOTHING ABOUT
SOVEREIGN IMMUNITY BUT ENACTS AN EXPRESS LIMITATION UPON FEDERAL
JUDICIAL POWER.  IT IS FAMILIAR HISTORY THAT IT WAS ADOPTED AS THE
RESPONSE TO THE COURT'S DECISION IN CHISHOLM V. GEORGIA, 2 DALL.  419
(1793), THAT CONSTRUED ART. III, ^ 2, OF THE CONSTITUTION -- THAT "(THE
JUDICIAL POWER SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING
UNDER THIS CONSTITUTION . . . BETWEEN A STATE AND CITIZENS OF ANOTHER
STATE" -- TO EXTEND TO A SUIT IN FEDERAL COURT BROUGHT BY INDIVIDUAL
CITIZENS OF SOUTH CAROLINA AGAINST THE STATE OF GEORGIA.  AN OUTRAGED
OUTCRY OF FINANCIALLY EMBARRASSED DEBTOR STATES FEARFUL OF SUITS IN
FEDERAL COURT GREETED THAT DECISION AND RESULTED IN THE IMMEDIATE
PROPOSAL, AND FAIRLY PROMPT ADOPTION, OF THE ELEVENTH AMENDMENT.  BUT
ALL THAT THE AMENDMENT PROVIDES IN TERMS IS THAT "(THE JUDICIAL POWER
OF THE UNITED STATES SHALL NOT BE CONSTRUED TO EXTEND TO ANY SUIT IN
LAW OR EQUITY, COMMENCED OR PROSECUTED AGAINST ONE OF THE UNITED STATES
BY CITIZENS OF ANOTHER STATE, OR BY CITIZNES OR SUBJECTS OF ANY FOREIGN
STATE" (EMPHASIS ADDED).  THE LITERAL WORDING IS THUS A FLAT
PROHIBITION AGAINST THE FEDERAL JUDICIARY'S ENTERTAINMENT OF SUITS
AGAINST EVEN A CONSENTING STATE BROUGHT BY CITIZENS OF ANOTHER STATE OR
BY ALIENS.  IN THE VERY YEAR THE AMENDMENT WAS FORMALLY RATIFIED, 1798,
THIS COURT GAVE IT THAT SWEEP IN HOLDING THAT "THE AMENDMENT BEING
CONSTITUTIONALLY ADOPTED, THERE COULD NOT BE EXERCISED ANY
JURISDICTION, IN ANY CASE, PAST OR FUTURE, IN WHICH A STATE WAS SUED BY
THE CITIZENS OF ANOTHER STATE . . ."  HOLLINGSWORTH V. VIRGINIA, 3
DALL.  378, 382 (1798) (EMPHASIS ADDED).  IT IS TRUE THAT CASES SINCE
DECIDED HAVE SAID THAT FEDERAL COURTS DO HAVE POWER TO ENTERTAIN SUITS
AGAINST CONSENTING STATES.  NONE HAS YET OFFERED, HOWEVER, A
PERSUASIVELY PRINCIPLED EXPLANATION FOR THAT CONCLUSION IN THE FACE OF
THE WORDING OF THE AMENDMENT.  SINCE THE QUESTION WHETHER THE ELEVENTH
AMENDMENT CONSTITUTIONALIZED SOVEREIGN IMMUNITY AS TO NONCITIZEN SUITS
SHOULD, THEREFORE, BE REGARDED AS OPEN, OR AT LEAST RIPE FOR FURTHER
CONSIDERATION, IT IS UNFORTUNATE THAT THE COURT, BY REFERRING TO THE
AMENDMENT IN THIS CASE AFTER PARDEN HELD IT TO BE INAPPLICABLE, SHOULD
LEND SUPPORT TO THE ARGUMENT THAT THE AMENDMENT REFLECTS THE EXISTENCE
OF A CONSTITUTIONAL BAR TO SUITS AGAINST A STATE BROUGHT BY ITS OWN
CITIZENS. 

IN A NATION WHOSE ULTIMATE SOVEREIGN IS THE PEOPLE AND NOT
GOVERNMENT, A DOCTRINE PREMISED UPON KINGSHIP -- OR, AS HAS BEEN
SUGGESTED, "ON THE LOGICAL AND PRACTICAL GROUND THAT THERE CAN BE NO
LEGAL RIGHT AS AINST THE AUTHORITY THAT MAKES THE LAW ON WHICH THE
RIGHT DEPENDS,"  KAWANANAKOA V. POLYBLANK, 205 U.S. 349, 353 (1907) --
IS INDEFENSIBLE "IF IT REPRESENTS, AS THE COURT HAS MORE THAN ONCE
INTIMATED, AN UNFORTUNATE EXCRESCENCE OF A POLITICAL AND LEGAL ORDER
WHICH NO LONGER ENLISTS SUPPORT . . ."  C. JACOBS, THE ELEVENTH
AMENDMENT AND SOVEREIGN IMMUNITY 160 (1972).  MR. JUSTICE FRANKFURTER
REMINDED US: 

     "THE COURSE OF DECISIONS CONCERNING SOVEREIGN IMMUNITY IS A

  GOOD ILLUSTRATION OF THE CONFLICTING CONSIDERATIONS THAT OFTEN

  STRUGGLE FOR MASTERY IN THE JUDICIAL PROCESS, AT LEAST

  IMPLICITLY.  IN VARYING DEGREES, AT DIFFERENT TIMES, THE MOMENTUM

  OF THE HISTORIC DOCTRINE IS ARRESTED OR DEFLECTED BY AN

  UNEXPRESSED FEELING THAT GOVERNMENTAL IMMUNITY RUNS COUNTER TO

  PREVAILING NOTIONS OF REASON AND JUSTICE.  LEGAL CONCEPTS ARE

  THEN FOUND AVAILABLE TO GIVE EFFECT TO THIS FEELING . . ." 

  LARSON V. DOMESTIC & FOREIGN CORP., 337 U.S. 682, 709 (1949)

  (DISSENTING OPINION). 

EX PARTE YOUNG, 209 U.S. 123 (1908), AND ITS NUMEROUS PROGENY,
HOLDING THAT A FEDERAL COURT MAY ENJOIN STATE OFFICERS FROM ENFORCING
AN UNCONSTITUTIONAL STATUTE, WAS A NOTABLE EXAMPLE OF A "(LEGAL CONCEPT
. . . FOUND AVAILABLE TO GIVE EFFECT TO THIS FEELING" THAT
"GOVERNMENTAL IMMUNITY RUNS COUNTER TO PREVAILING NOTIONS OF REASON AND
JUSTICE."  PARDEN WAS ANOTHER EXAMPLE.  THE COURT'S DISCUSSION TODAY OF
THE INAPPLICABLE ELEVENTH AMENDMENT REGRETTABLY TENDS TO EXALT
GOVERNMENTAL IMMUNITY OVER "PREVAILING NOTIONS OF REASON AND JUSTICE." 
IT ALSO CASTS A SHADOW UPON THE VALIDITY OF THE VIEW EXPRESSED BY MR.
CHIEF JUSTICE MARSHALL IN COHENS V. VIRGINIA, 6 WHEAT.  264 (1821),
THAT THE AMENDMENTS DID NOT APPLY TO BAR FEDERAL-QUESTION SUITS BROUGHT
AGAINST A STATE BY ITS OWN CITIZENS.  IT HAD BEEN ARGUED IN THAT CASE
THAT: 

"THE ORIGINAL CLAUSE (ART. III) GIVING JURISDICTION ON ACCOUNT OF
THE CHARACTER OF THE PARTIES, AS ALIENS, CITIZENS OF DIFFERENT STATES,
ETC. DOES NOT LIMIT, BUT EXTENDS THE JUDICIAL POWER OF THE UNION.  THE
(ELEVENTH) AMENDMENT APPLIES TO THAT ALONE.  IT LEAVES A SUIT BETWEEN A
STATE AND A CITIZENS, ARISING UNDER THE CONSTITUTION, LAWS, ETC. WHERE
IT FOUND IT; AND THE STATES ARE STILL LIABLE TO BE SUED BY A CITIZEN,
WHERE THE JURISDICTION ARISES IN THIS MANNER, AND NOT MERELY OUT OF THE
CHARACTER OF THE PARTIES."  ID., AT 348 - 349 (EMPHASIS ADDED).  MR.
CHIEF JUSTICE MARSHALL ADOPTED THIS INTERPRETATION.  IN DETERMINING
WHETHER A WRIT OF ERROR WAS A "SUIT" WITHIN THE MEANING OF THE ELEVENTH
AMENDMENT, HE SAID: 

"IF THIS WRIT OF ERROR BE A SUIT IN THE SENSE OF THE 11TH AMENDMENT,
IT IS NOT A SUIT COMMENCED OR PROSECUTED 'BY A CITIZEN OF ANOTHER
STATE, OR BY A CITIZEN OR SUBJECT OF ANY FOREIGN STATE."  IT IS NOT
THEN WITHIN THE AMENDMENT, BUT IS GOVERNED ENTIRELY BY THE CONSTITUTION
AS ORIGINALLY FRAMED, AND WE HAVE ALREADY SEEN, THAT IN ITS ORIGIN, THE
JUDICIAL POWER WAS EXTENDED TO ALL CASES ARISING UNDER THE CONSTITUTION
OR LAWS OF THE UNITED STATES, WITHOUT RESPECT TO PARTIES."  ID., AT 412
(EMPHASIS ADDED).  IN OTHER WORDS, THE VIEW OF THE GREAT CHIEF JUSTICE
WAS THAT THE ELEVENTH AMENDMENT EXPRESSLY WITHDREW THE FEDERAL JUDICIAL
POWER ORIGINALLY GRANTED IN FEDERAL-QUESTION CASES ONLY AS TO SUITS
AGAINST STATES BY CITIZENS OF OTHER STATES OR BY ALIENS.  I DO NOT READ
HANS V. LOUISIANA, 134 U.S. 1 (1890), AS HAS BEEN SUGGESTED, JACOBS,
SUPRA, AT 109, TO REJECT MR. CHIEF JUSTICE MARSHALL'S VIEW THAT A STATE
MAY BE SUED IN FEDERAL COURT BY ITS OWN CITIZENS UNDER THE FEDERAL
QUESTION CLAUSE.  HANS WAS ALSO A SUIT AGAINST A STATE BY ITS OWN
CITIZENS.  THE COURT IN HANS HELD THAT THE ELEVENTH AMENDMENT WAS
INAPPLICABLE IN SUCH CASE (AND PARDEN FOLLOWED THIS HOLDING), BUT THAT
THE STATE NEVERTHELESS ENJOYED THE PROTECTION OF THE ANCIENT DOCTRINE,
INHERENT IN THE NATURE OF SOVEREIGNTY, THAT A STATE IS NOT AMENABLE TO
THE SUIT OF AN INDIVIDUAL WITHOUT ITS CONSENT.  134 U.S., AT 10 - 15. 
THUS, EVEN IF THE ELEVENTH AMENDMENT IS A CONSTITUTIONAL RESTRAINT
AGAINST SUITS AGAINST STATES BY CITIZENS OF ANOTHER STATE, HANS ACCORDS
TO NONCONSENTING STATES ONLY A NONCONSTITUTIONAL IMMUNITY FROM SUIT BY
ITS OWN CITIZENS.  TRUE, MR. CHIEF JUSTICE MARSHALL'S STATEMENT OF THE
PRINCIPLE IN COHENS V. VIRGINIA, CREATED A PARADOX:  "A CITIZEN WITH A
CLAIM UNDER THE CONSTITUTION OR FEDERAL LAW AGAINST HIS OWN STATE MIGHT
SUE IN THE FEDERAL COURTS, WHILE A CITIZEN OF ANOTHER STATE OR AN
ALIEN, PARTIES EXERCISING MUCH LESS, IF ANY, INFLUENCE UPON THE
GOVERNMENT OF THE STATE FOR ITS BENEFICENCE, WOULD BE DENIED A FEDERAL
REMEDY."  JACOBS, SUPRA, AT 91.  HANS RECOGNIZED THAT MR. CHIEF JUSTICE
MARSHALL IN COHENS V. VIRGINIA, HAD SAID THAT, NEVERTHELESS, THE
FEDERAL-QUESTION CLAUSE OF THE CONSTITUTION SHOULD BE READ AS MAKING A
STATE AMENABLE TO SUIT BY ONE OF ITS OWN CITIZENS.  134 U.S., AT 19 -
20.  THIS COURT GIVES PARTICULAR WEIGHT TO PRONOUNCEMENTS OF MR. CHIEF
JUSTICE MARSHALL UPON THE MEANING OF HIS CONTEMPORARIES IN FRAMING THE
CONSTITUTION.  THE HANS TREATMENT OF COHENS DOES NOT CONSTITUTE AN
EXCEPTION.  THE STATEMENT AT P. 20 THAT THE "OBSERVATION WAS
UNNECESSARY TO THE DECISION . . . AND . . . OUGHT NOT TO OUTWEIGH THE
IMPORTANT CONSIDERATIONS REFERRED TO WHICH LEAD TO A DIFFERENT
CONCLUSION" IMPLIES AT MOST A RESERVATION.  WHATEVER SIGNIFICANCE MAY
BE ATTACHED TO THE STATEMENT, HOWEVER, THE HANS OPINION AS AN ENTIRETY
CAN SENSIBLY BE READ AS RESTING THE JUDGMENT SQUARELY UPON THE ANCIENT
NONCONSTITUTIONAL DOCTRINE OF SOVEREIGN IMMUNITY.  HANS' RESOLUTION OF
THE PARODOX, IN OTHER WORDS, WAS THAT, INDEPENDENTLY OF ANY
CONSTITUTIONAL PROVISION, SUCH SUITS AGAINST A NONCONSENTING STATE BY
ITS OWN CITIZENS ARE BARRED BY SOVEREIGN IMMUNITY.  IT MUST, THEREFORE,
BE REASON FOR REGRET IF THE COURT TODAY, BY ITS DISCUSSION OF THE
ELEVENTH AMENDMENT, SUGGESTS A CONSTITUTIONAL LIMITATION THAT COULD
HAVE FAR-REACHING AND UNTOWARD CONSEQUENCES.  AS ONE COMMENTATOR HAS
OBSERVED: 

     "IF, AS HAS BEEN SUGGESTED, THE AMERICAN DOCTRINE OF SOVEREIGN

  IMMUNITY IS INDEFENSIBLE UPON BOTH THEORETICAL AND PRAGMATIC

  GROUNDS -- IF IT REPRESENTS, AS THE COURT HAS MORE THAN ONCE

  INTIMATED, AN UNFORTUNATE EXCRESCENCE OF A POLITICAL AND LEGAL

  ORDER WHICH NO LONGER ENLISTS SUPPORT -- ITS CONTINUED OBSERVANCE

  SHOULD DEPEND UPON WHETHER IT IS INCORPORATED INTO THE

  CONSTITUTION AND HENCE MADE OBLIGATORY UPON THE JUDICIARY UNLESS

  WAIVED BY THE GOVERNMENT.  IT IS CLEAR ENOUGH, OF COURSE, THAT IF

  THE DOCTRINE IS TO HAVE CONSTITUTIONAL STATUS, IT MUST BE

  JUDICIALLY INFERRED.  THERE IS ABSOLUTELY NOTHING IN THE ORIGINAL

  CONSTITUTION NOR IN ANY OF THE AMENDMENTS EXPRESSLY SANCTIONING

  THE DOCTRINE.  AND TO THIS GENERALIZATION THE ELEVENTH AMENDMENT,

  DESPITE THE OUTCRY ABOUT SOVEREIGN IMMUNITY AND THE SOVEREIGNTY

  OF THE STATES WHICH PRECEDED ITS ADOPTION, DOES NOT CONSTITUTE

  AND EXCEPTION.  THAT AMENDMENT, TO BE SURE, DID IMPOSE A

  LIMITATION UPON THE FEDERAL JUDICIAL POWER WITH RESPECT TO SUITS

  BROUGHT AGAINST THE STATES BY CERTAIN CLASSES OF INDIVIDUALS, BUT

  ITS LANGUAGE DOES NOT SUPPORT THE COURT'S FARREACHING STATEMENT

  THAT 'AS TO THE STATES, LEGAL IRRESPONSIBILITY WAS WRITTEN INTO

  THE ELEVENTH AMENDMENT.'  (KEIFER & KEIFER V. RECONSTRUCTION

  FINANCE CORP., 306 U.S. 381, 388 (1939).)"  JACOBS, SUPRA, AT

  160. 

        IV 

MY BROTHER MARSHALL TAKES A MUCH DIFFERENT APPROACH.  HE AGREES,
CONTRARY TO THE COURT, THAT PARDEN FORECLOSES A STATE SUED UNDER ^
16(B) IN FEDERAL COURT (AND, HE CONCLUDES, ALSO IN STATE COURT) FROM
RELYING ON THE PROTECTION OF THE ANCIENT DOCTRINE OF SOVEREIGN
IMMUNITY, SINCE THE STATES SURRENDERED THEIR SOVEREIGNTY TO
CONGRESSIONAL CONTROL TO THAT EXTENT WHEN CONGRESS WAS GIVEN THE
COMMERCE POWER.  NEVERTHELESS, MY BROTHER MARSHALL WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS ON THE BASIS OF A CONSTRUCTION THAT
ART. III, EVEN BEFORE THE ADOPTION OF THE ELEVENTH AMENDMENT AND
INDEPENDENTLY OF THE ANCIENT DOCTRINE OF SOVEREIGN IMMUNITY, IMPLICITLY
BARRED FEDERAL COURTS FROM ENTERTAINING SUITS BROUGHT BY INDIVIDUALS
AGAINST NONCONSENTING STATES.  THE ELEVENTH AMENDMENT, HE ARGUES, IS
SIMPLY A REAFFIRMATION OF THAT IMPLICIT CONSTITUTIONAL LIMITATION ON
THE FEDERAL JUDICIAL POWER AFTER THIS COURT HELD OTHERWISE IN CHISHOLM
V. GEORGIA, 2 DALL.  419 (1793).  THEN, WHILE ADMITTING THAT THE
ELEVENTH AMENDMENT IS NOT LITERALLY APPLICABLE TO SUITS BROUGHT AGAINST
A STATE BY ITS OWN CITIZENS, HE READS HANS V. LOUISIANA, SUPRA, AS
APPLYING THE SO-CALLED JURISDICTIONAL BAR OF ART. III TO SUCH SUITS. 
THUS, HE CONCLUDES THAT THE PRESENT SUIT IS BEYOND THE JUDICIAL POWER
OF THE FEDERAL COURTS, UNLESS THE STATE OF MISSOURI IS FOUND TO HAVE
CONSENTED.  MOREOVER, HIS THEORY COMPELS HIM TO THE PARADOXICAL
CONCLUSION THAT MISSOURI CAN FRUSTRATE PETITIONERS' VINDICATION OF
THEIR FEDERALLY CREATED RIGHTS IN FEDERAL COURT, BUT IS POWERLESS TO
DENY THEM VINDICATION OF THOSE RIGHTS IN ITS OWN COURTS.  /6/ 

JURISDICTION OF THE SUIT BEFORE US IS GENERAL FEDERAL-QUESTION
JURISDICTION UNDER ART. III, ^ 2, CL. 1.  THAT PROVISION, OF COURSE,
CONTAINS NO EXEMPTION OF STATES, AND ON ITS FACE OBVIOUSLY GRANTS NO
FORM OF IMMUNITY TO THE STATES.  RATHER, THE MORE PLAUSIBLE READING OF
THE PLAIN WORDS OF THE ARTICLE IS THAT THEY EXTEND FEDERAL JUDICIAL
POWER TO FEDERAL-QUESTION CONTROVERSIES BETWEEN A STATE AND
INDIVIDUALS, WHETHER CITIZENS OR NONCITIZENS OF THE STATE.  THAT
CERTAINLY WAS THE CONSTRUCTION OF THE ARTICLE "AS ORIGINALLY FRAMED"
EXPRESSED BY MR. CHIEF JUSTICE MARSHALL IN COHENS V. VIRGINIA, SUPRA.
THE AMENDMENT OVERRULED CHISHOLM V. GEORGIA TO EXCEPT SUITS BY CITIZENS
OF OTHER STATES AND BE ALIENS, AND THUS WAS THE ULTIMATE RESOLUTION OF
THE VEHEMENT PROTESTS OF DEBTOR STATES VOICED DURING THE RATIFICATION
PERIOD.  THOSE STAES FEARED THAT ART. III MIGHT EXPOSE THEM TO SUITS IN
FEDERAL COURTS BY OUT-OF-STATE AND ALIEN CREDITORS.  CHISHOLM PROVED
THAT THE FEARS WERE JUSTIFIED.  SEE JACOBS, SUPRA, AT 27 - 40; HANS V.
LOUISIANA, SUPRA, AT 10 - 15.  MADISON AND HAMILTON, ALONG WITH JOHN
MARSHALL, HAD REPLIED TO THESE CRITICS DURING THE RATIFICATION PERIOD
THAT SUITS AGAINST A STATE COULD ONLY BE MAINTAINED WHERE THE STATE HAS
CONSENTED (AS, FOR EXAMPLE, WHERE THE STATE IS THE PLAINTIFF OR AN
INTERVENOR).  THIS WAS NOT BECAUSE OF ANYTHING IN ART. III, IMPLICIT OR
OTHERWISE; RATHER, IT WAS BECAUSE "(IT IS INHERENT IN THE NATURE OF
SOVEREIGNTY, NOT TO BE AMENABLE TO THE SUIT OF AN INDIVIDUAL WITHOUT
ITS CONSET."  THE FEDERALIST NO. 81 (HAMILTON).  HANS V. LOUISIANA
CONCEDED, ARGUENDO, THAT THERE WAS FEDERAL QUESTION JURISDICTION TO
MAINTAIN THE SUIT, BUT NEVERTHELESS CONCLUDED THAT THE STATE WAS IMMUNE
FROM SUIT.  HOWEVER, AS WAS THE CASE IN THE RESPONSES OF MADISON,
HAMILTON, AND JOHN MARSHALL TO THE CRITICS OF THE RATIFICATION PERIOD,
THE COURT, IN MY VIEW, BASED ITS DECISION, NOT ON SOME ALLEGED
JURISDICTIONAL PROHIBITION DRAWN FROM ART. III, BUT RATHER ON THE
PRINCIPLE THAT, INDEPENDENTLY OF ANY CONSTITUTIONAL PROVISION, SUCH
SUITS ARE BARRED BY SOVEREIGN IMMUNITY WHERE THE STATE HAS NOT
VOLUNTARILY SURRENDERED ITS IMMUNITY.  OTHERWISE, THERE WOULD HAVE BEEN
NO REASON FOR THE COURT'S LENGTHY QUOTATION FROM HAMILTON'S DEFINITION
OF THE ANCIENT DOCTRINE: 

     "IT IS INHERENT IN THE NATURE OF SOVEREIGNTY NOT TO BE

  AMENDABLE TO THE SUIT OF AN INDIVIDUAL WITHOUT ITS CONSENT.  THIS

  IS THE GENERAL SENSE AND THE GENERAL PRACTICE OF MANKIND; AND THE

  EXEMPTION, AS ONE OF THE ATTRIBUTES OF SOVEREIGNTY, IS NOW

  ENJOYED BY THE GOVERNMENT OF EVERY STATE IN THE UNION.  UNLESS,

  THEREFORE, THERE IS A SURRENDER OF THIS IMMUNITY IN THE PLAN OF

  THE CONVENTION, IT WILL REMAIN WITH THE STATES . . ."  134 U.S.,

  AT 13, QUOTING FROM THE FEDERALIST NO. 81 (HAMILTON) (SECOND

  EMPHASIS ADDED). 

AND THE COURT IN HANS REFERRED SEVERAL TIMES TO THE OPINION OF MR.
JUSTICE IREDELL IN CHISHOLM V. GEORGIA, EVENTUALLY CONCLUDING THAT MR.
JUSTICE IREDELL'S VIEWS "WERE CLEARLY RIGHT."  ID., AT 14.  YET MR.
JUSTICE IREDELL DID NOT SUGGEST THAT ART. III CONTAINED AN IMPLICIT,
ABSOLUTE JURISDICTIONAL BAR AGAINST FEDERAL COURT SUITS BROUGHT BY AN
INDIVIDUAL AGAINST A STATE.  ON THE CONTRARY, HIS POSITION, SIMILAR TO
THAT OF HAMILTON, WAS THAT UNLESS A STATE CONSENTS, AS IT MUST BE TAKEN
TO HAVE DONE WHERE, FOR EXAMPLE, THE SUIT INVOLVES AN ACTIVITY AS TO
WHICH THE STATES SURRENDERED THEIR SOVEREIGNTY IN FORMING THE
CONSTITUTION, THE STATES ARE PROTECTED BY THE ANCIENT DOCTRINE OF
SOVEREIGN IMMUNITY FROM BEING SUBJECTED TO SUIT IN FEDERAL COURT AT THE
INSTANCE OF INDIVIDUALS.  THUS, MR. JUSTICE IREDELL STATED: 

"SO FAR AS STATES UNDER THE CONSTITUTION CAN BE MADE LEGALLY LIABLE
TO (FEDERAL JUDICIAL) AUTHORITY, SO FAR TO BE SURE THEY ARE SUBORDINATE
TO THE AUTHORITY OF THE UNITED STATES, AND THEIR INDIVIDUAL SOVEREIGNTY
IS IN THIS RESPECT LIMITED.  BUT IT IS LIMITED NO FARTHER THAN THE
NECESSARY EXECUTION OF SUCH AUTHORITY REQUIRES.  THE AUTHORITY EXTENDS
ONLY TO THE DECISION OF CONTROVERSIES IN WHICH A STATE IS A PARTY, AND
PROVIDING LAWS NECESSARY FOR THAT PURPOSE.  THAT SURELY CAN REFER ONLY
TO SUCH CONTROVERSIES IN WHICH A STATE CAN BE A PARTY; IN RESPECT TO
WHICH, IF ANY QUESTION ARISES, IT CAN BE DETERMINED, ACCORDING TO THE
PRINCIPLES I HAVE SUPPORTED, IN NO OTHER MANNER THAN BY A REFERENCE
EITHER TO PREEXISTENT LAWS (COMMON LAW), OR LAWS PASSED UNDER THE
CONSTITUTION AND IN CONFORMITY TO IT.

        .          .          .   . 

     "IF THEREFORE, NO NEW REMEDY BE PROVIDED (BY CONGRESS UNDER

  AUTHORITY GRANTED IN THE CONSTITUTION) . . . IT IS INCUMBENT UPON

  US TO ENQUIRE, WHETHER PREVIOUS TO THE ADOPTION OF THE

  CONSTITUTION . . . AN ACTION OF THE NATURE LIKE THIS BEFORE THE

  COURT COULD HAVE BEEN MAINTAINED AGAINST ONE OF THE STATES IN THE

  UNION UPON THE PRINCIPLES OF THE COMMON LAW, WHICH I HAVE SHOWN

  TO BE ALONE APPLICABLE.  IF IT COULD, I THINK IT IS NOW

  MAINTAINABLE HERE . . ."  2 DALL., AT 436 - 437 (EMPHASIS IN

  ORIGINAL). 

AND IN THE END, HANS STATED:  "IT SEEMS TO US THAT THESE VIEWS OF THOSE
GREAT ADVOCATES AND DEFENDERS OF THE CONSTITUTION WERE MOST SENSIBLE
AND JUST; AND THEY APPLY EQUALLY TO THE PRESENT CASE AS TO THAT THEN
UNDER DISCUSSION."  134 U.S., AT 14 - 15.  THUS, ONE CANNOT FIND
SUPPORT FOR INTERPRETING ART. III AS A JURISDICTIONAL BAR IN THE "VIEWS
OF THOSE GREAT ADVOCATES AND DEFENDERS OF THE CONSTITUTION."  /7/ 

IN SUM, EXCEPT AS THE ELEVENTH AMENDMENT MAY BE READ TO CREATE A
JURISDICTIONAL BAR AGAINST SUITS BY CITIZENS OF ANOTHER STATE OR BY
ALIENS, THE RESTRICTION ON THE EXERCISE OF THE FEDERAL JUDICIAL POWER
IN SUITS AGAINST A STATE BROUGHT BY INDIVIDUALS DERIVES, NOT FROM
ANYTHING IN THE CONSTITUTION, INCLUDING ART. III, BUT FROM TRADITIONAL
NONCONSTITUTIONAL PRINCIPLES OF SOVEREIGN IMMUNITY.  EXCEPT, AS
HAMILTON PUT IT, WHERE "THERE IS A SURRENDER OF THIS IMMUNITY IN THE
PLAN OF THE CONVENTION,"  IN WHICH CASE IN MY VIEW CONSENT IS
IRRELEVANT, ART. III EXTENDS RATHER THAN BARS EXERCISE OF FEDERAL
JUDICIAL POWER TO ENTERTAIN SUCH SUITS AGAINST CONSENTING STATES,
LEAVING OPEN ONLY THE QUESTION WHETHER THE STATE IN FACT CONSENTED OR
MAY BE DEEMED TO HAVE CONSENTED.  HANS WAS A "SOVEREIGN IMMUNITY" CASE
PURE AND SIMPLE; NO ALLEGED BAR IN EITHER ART. III OR THE ELEVENTH
AMENDMENT PLAYED ANY ROLE WHATEVER IN THAT DECISION.  THEREFORE, EVEN
IF THE ELEVENTH AMENDMENT BE READ LITERALLY TO PROHIBIT THE EXERCISE OF
FEDERAL JUDICIAL POWER TO ENTERTAIN SUITS AGAINST A STATE BROUGHT BY
CITIZENS OF ANOTHER STATE OR FOREIGN COUNTRY (A QUESTION WE NEED NOT
DECIDE IN THIS CASE), MY BROTHER MARSHALL HAS NO SUPPORT IN HANS FOR
BRINGING THIS SUIT BY A STATE'S OWN CITIZENS WITHIN THAT PROHIBITION. 
STATED SIMPLY, THE HOLDING OF HANS IS THAT THE ANCIENT PRINCIPLES OF
SOVEREIGN IMMUNITY LIMIT EXERCISE OF THE FEDERAL POWER TO SUITS AGAINST
CONSENTING STATES.  AND THE FUNDAMENTAL LESSON OF PARDEN, AS MY BROTHER
MARHSALL CONCEDES, IS THAT BY ADOPTING AND RATIFYING THE COMMERCE
CLAUSE, THE STATES SURRENDERED A PORTION OF THEIR SOVEREIGNTY AS TO
THOSE CASES IN WHICH STATE ACTIVITY TOUCHES ON THE FEDERAL REGULATORY
POWER UNDER THE COMMERCE CLAUSE.  "(THE STATES BY THE ADOPTION OF THE
CONSTITUTION, ACTING 'IN THEIR HIGHEST SOVEREIGN CAPACITY, IN THE
CONVENTION OF THE PEOPLE,' WAIVED THEIR EXEMPTION FROM JUDICIAL POWER. 
. . (JURISDICTION . . . WAS THUS ESTABLISHED 'BY THEIR OWN CONSENT AND
DELEGATED AUTHORITY' AS A NECESSARY FEATURE OF THE FORMATION OF A MORE
PERFECT UNION."  PRINCIPALITY OF MONACO V. MISSISSIPPI, 292 U.S. 313,
328 - 329 (1934). 

INDEED, IF ART. III IS AN ABSOLUTE JURISDICTIONAL BAR, MY BROTHER
MARSHALL IS INCONSISTENT IN CONCEDING THAT FEDERAL COURTS HAVE POWER TO
ENTERTAIN SUITS BY OR AGAINST CONSENTING STATES.  FOR I HAD ALWAYS
SUPPOSED THAT JURISDICTIONAL POWER TO ENTERTAIN A SUIT WAS NOT CAPABLE
OF WAIVER AND COULD NOT BE CONFERRED BY CONSENT.  IT IS TRUE THAT,
CONTRARY TO THE DIFFERENT HOLDING OF HOLLINGSWORTH V. VIRGINIA, 3
DALL.  378 (1798), SOME OPINIONS HAVE ASSUMED THAT A STATE MAY CONSENT
TO SUIT IN FEDERAL COURT.  JACOBS, SUPRA, AT 107 - 108.  BUT THE
OPINIONS MAKING THAT ASSUMPTION DID NOT CONFRONT MY BROTHER MARSHALL'S
THEORY THAT ART. III CONTAINS AN IMPLICIT JURISDICTIONAL BAR AND,
ACCORDINGLY, DO NOT ADDRESS THE HIGHLY PROVOCATIVE ANCILLARY QUESTION
WHETHER SUCH A BAR WOULD PROHIBIT FEDERAL COURTS FROM ENTERTAINING
SUITS EVEN AGAINST CONSENTING STATES.  DOUBTLESS BECAUSE BY BROTHER
MARHSALL'S THEORY DID NOT OCCUR TO THE JUDGES, THOSE CASES (WHICH DID
NOT ARISE UNDER STATUTES LIKE THE FELA AND FLSA) WERE TREATED AS
REQUIRING DECISION, NOT IN TERMS OF MY BROTHER MARSHALL'S THEORY OF A
JURISDICTIONAL BAR THAT MAY BE REMOVED ONLY BY ACTIONS TANTAMOUNT TO
VOLUNTARY CONSENT, BUT RATHER WITHIN THE BOUNDS OF TRADITIONAL NOTIONS
OF SOVEREIGN IMMUNITY -- AN IMMUNITY, I REPEAT, THAT MY BROTHER
MARSHALL AGREES THE STATES SURRENDERED, AS HAMILTON SAID, "IN THE PLAN
OF THE CONVENTION," AT LEAST INSOFAR AS CONGRESS CONDITIONS A STATE'S
ENGAGEMENT IN A REGULATED INTERSTATE ENTERPRISE UPON AMENABILITY TO
SUIT.  YET, HE ARGUES THAT, WHILE THE SURRENDERED IMMUNITY CANNOT ARISE
TO DEFEAT A SUIT IN STATE COURT UNDER ^ 16(B), IT MAY BE RESURRECTED
FROM THE GRAVE SOLELY THAT IT MAY BE WAIVED TO LIFT THE PURPORTED
JURISDICTIONAL BAR OF ART. III TO STATE EMPLOYEES' SUITS IN FEDERAL
COURT UNDER ^ 16(B).  THAT REASONING, I SAY WITH ALL RESPECT, SIMPLY
DEFIES LOGIC.  INDEED, EVEN IF HANS IS A CONSTITUTIONAL DECISION, AND I
DO NOT THINK IT IS, AT MOST IT HOLDS THAT ART. III IS TO BE READ TO
INCORPORATE THE ANCIENT DOCTRINE OF SOVEREIGN IMMUNITY.  BUT MY BROTHER
MARSHALL'S RELIANCE ON HANS WOULD FARE NO BETTER IN SUCH CASE, FOR THEN
THE SURRENDER OF THE IMMUNITY "IN THE PLAN OF THE CONVENTION" WOULD
OBVIOUSLY FORECLOSE ASSERTION OF THE IMMUNITY IN SUITS IN BOTH STATE
AND FEDERAL COURTS BROUGHT UNDER FEDERAL STATUTES FOUNDED ON THE
COMMERCE POWER. 

        V 

"WE THE PEOPLE" FORMED THE GOVERNMENTS OF THE SERVERAL STATES. 
UNDER OUR CONSTITUTIONAL SYSTEM, THEREFORE, A STATE IS NOT THE
SOVEREIGN OF ITS PEOPLE.  RATHER, ITS PEOPLE ARE SOVEREIGN.  OUR
DISCOMFORT WITH SOVEREIGN IMMUNITY, BORN OF SYSTEMS OF DIVINE RIGHT
THAT THE FRAMERS ABHORRED, IS THUS ENTIRELY NATURAL.  THE DISCOMFORT
HAS MARKEDLY INCREASED SINCE SUBSIDENCE OF THE CONTROVERSY OVER
JUDICIAL REVIEW OF STATE DECISIONS THAT WAS FOUGHT OUT IN TERMS OF THE
AMENABILITY OF STATES TO SUIT IN FEDERAL COURT.  JACOBS, SUPRA, AT 41 -
74.  EX PARTE YOUNG, 209 U.S. 123 (1908), SUBSTANTIALLY EVISCERATED
GOVERNMENTAL IMMUNITY IN HOLDING THAT INDIVIDUALS MIGHT SUE IN FEDERAL
COURT TO ENJOIN STATE OFFICERS FROM ENFORCING UNCONSTITUTIONAL
STATUTES.  CONGRESS, REFLECTING AGREEMENT WITH THE SOUNDNESS OF THE
VIEW THAT "THE DOCTRINE OF EX PARTE YOUNG SEEMS INDISPENSABLE TO THE
ESTABLISHMENT OF CONSTITUTIONAL GOVERNMENT AND THE RULE OF LAW," C.
WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 186 (2D ED. 1970),
ACCEPTED THAT DECISION.  PEREZ V. LEDESMA, 401 U.S. 82, 104 - 110
(OPINION OF BRENNAN, J.).  IN SHORT, THE TREND SINCE HANS WAS DECIDED
IN 1890 HAS BEEN AGAINST ENFORCEMENT OF GOVERNMENTAL IMMUNITY EXCEPT
WHEN CLEARLY REQUIRED BY EXPLICIT TEXTUAL PROHIBITIONS, AS IN THE
ELEVENTH AMENDMENT.  MOREOVER, AS PARDEN ILLUSTRATES, THE TREND ALSO IS
TO INTERPRET THOSE PROHIBITIONS NARROWLY AND LITERALLY.  FOR NONE CAN
GAINSAY THAT A STATE MAY GRIEVOUSLY HURT ONE OF ITS CITIZENS.  OUR
EXPANDING CONCEPTS OF PUBLIC MORALITY ARE THUS OFFENDED WHEN A STATE
MAY ESCAPE LEGAL REDRESS FOR ITS WRONGS.  I NEED NOT ADDRESS IN THIS
CASE, HOWEVER, THE QUESTION WHETHER TODAY'S DECISION CONSTITUTES A
DENIAL OF THE FIFTH AMENDMENT'S COUNTERPART GUARANTEE OF DUE PROCESS. 
SEE, HOWEVER, JACOBS, SUPRA, AT 163 - 164.  OUR CONSTITUTIONAL
COMMITMENT, RECITED IN THE PREAMBLE, IS TO "ESTABLISH JUSTICE."  THAT
KEYSTONE OBJECTIVE IS FURTHERED BY THE TREND TOWARD LIMITATION OF THE
DEFENSE OF GOVERNMENTAL IMMUNITY REPRESENTED BY EX PARTE YOUNG AND
PARDEN.  TODAY, HOWEVER, THE COURT AND MY BROTHER MARSHALL ARREST THE
TREND -- THE COURT BY WATERING DOWN PARDEN IN RELIANCE ON THE PARDEN
DISSENT AND IN ITS DISCUSSION OF THE INAPPLICABLE ELEVENTH AMENDMENT,
AND MY BROTHER MARSHALL BE REJECTING MR. CHIEF JUSTICE MARSHALL'S VIEW
THAT NO JURISDICTIONAL BAR MAY BE IMPLIED IN ART. III. 

I WOULD REVERSE THE COURT OF APPEALS AND REMAND THE CASE TO THE
DISTRICT COURT WITH DIRECTION TO PROCEED TO TRIAL ON THE COMPLAINT. 

[[DFN 

/1/  THAT CONGRESS MADE ^ 16(B) AS FULLY AVAILABLE TO THE PUBLIC
EMPLOYEES AS TO PRIVATE EMPLOYEES IS CLEAR FROM EXPLICIT STATEMENTS
THAT THE AMENDMENTS WERE DESIGNED "TO MAKE PLAIN THE INTENT TO BRING
UNDER THE COVERAGE OF THE ACT EMPLOYEES OF HOSPITALS AND RELATED
INSTITUTIONS, SCHOOLS FOR PHYSICALLY OR MENTALLY HANDICAPPED OR GIFTED
CHILDREN, OR INSTITUTIONS OF HIGHER EDUCATION, WHETHER OR NOT ANY OF
THESE HOSPITALS, SCHOOLS, OR INSTITUTIONS ARE PUBLIC OR PRIVATE OR
OPERATED FOR PROFIT OR NOT FOR PROFIT."  S. REP. NO. 1487, 89TH CONG.,
2D SESS., 8 (1966) (EMPHASIS ADDED).  AND IT IS STATED ON THE SAME
PAGE:  "THESE ENTERPRISES WHICH ARE NOT PROPRIETARY, THAT IS, NOT
OPERATED FOR PROFIT, ARE ENGAGED IN ACTIVITIES WHICH ARE IN SUBSTANTIAL
COMPETITION WITH SIMILAR ACTIVITIES CARRIED ON BY ENTERPRISES ORGANIZED
FOR A BUSINESS PURPOSE.  FAILURE TO COVER ALL ACTIVITIES OF THESE
ENTERPRISES WILL RESULT IN THE FAILURE TO IMPLEMENT ONE OF THE BASIC
PURPOSES OF THE ACT, THE ELIMINATION OF CONDITIONS WHICH 'CONSTITUTE AN
UNFAIR METHOD OF COMPETITION IN COMMERCE.'"  (EMPHASIS ADDED.) 

THUS, I AGREE WITH THE DISSENTING JUDGES BELOW THAT THERE IS "IN THE
CIRCUMSTANCES SURROUNDING THIS LEGISLATION A STRONG INFERENCE THAT
CONGRESS INTENDED TO AFFORD STATE EMPLOYEES THE SAME DIRECT RIGHT OF
SUIT AGAINST THEIR EMPLOYERS AS IS POSSESSED BY COVERED EMPLOYEES OF
NONGOVERNMENTAL EMPLOYERS."  452 F.2D 820, 831 (1971) (BRIGHT, J.,
DISSENTING). 

/2/  THE COURT OF APPEALS FOR THE TENTH CIRCUIT REJECTED THE
GOVERNMENTAL-PROPRIETARY DISTINCTION ON FACTS IDENTICAL TO THOSE OF THE
PRESENT CASE.  BRIGGS V. SAGERS, 424 F.2D 130, 132 - 133 (CA10 1970). 
SEE ALSO SANITARY DISTRICT V. UNITED STATES, 266 U.S. 405, 426 (1925);
UNITED STATES V. CALIFORNIA, 297 U.S. 175, 183 - 184 (1936); 3 K.
DAVIS, ADMINISTRATIVE LAW TREATISE 459 - 466 (1958); N. 1, SUPRA. 

/3/  SEE THE COMPREHENSIVE DISCUSSION IN HODGSON V. WHEATON GLASS
CO., 446 F.2D 527 (CA3 1971).  SEE ALSO BROOKLYN SAVINGS BANK V.
O'NEIL, 324 U.S. 697 (1945); HODGSON V. RICKY FASHIONS, 434 F.2D 1261
(CA5 1970). 

/4/  SEE THE DISCUSSION, INFRA, AT 308. 

/5/  THE SOLICITOR GENERAL STATES THAT:  "IN 1971 . . . THE ACT
COVERED 45.4 MILLION EMPLOYEES AND NEARLY 2 MILLION ESTABLISHMENTS; 2.7
MILLION OF THESE EMPLOYEES AND 118,000 OF THESE ESTABLISHMENTS WERE IN
THE SECTOR OF STATE AND LOCAL GOVERNMENT EMPLOYMENT, INCLUDING STATE
SCHOOLS AND HOSPITALS.  YET LESS THAN 4 PERCENT OF THESE ESTABLISHMENTS
CAN BE INVESTIGATED BY THE SECRETARY EACH YEAR."  BRIEF FOR UNITED
STATES AS AMICUS CURIAE 22 - 23.     ON THIS ACCOUNT, IT HAS BEEN
SUGGESTED "THE INSTANT CASE IS EVEN MORE COMPELLING THAN PARDEN IN
ASSERTING THAT CONGRESS' POWER TO REGULATE COMMERCE SHOULD OVERRIDE
SOVEREIGN IMMUNITY.  SINCE THE SUPREME COURT WAS WILLING TO FIND
CONSTRUCTIVE WAIVER OF IMMUNITY IN ORDER TO GIVE PROTECTION TO A
RELATIVELY SMALL UNMBER OF PEOPLE -- EMPLOYEES OF STATE OWNED RAILWAYS
- EVEN WHERE CONGRESS HAD NOT MADE CLEAR ITS DESIRE THAT SUCH
PROTECTION BE GIVEN, THEN A FORTIORI CONSTRUCTIVE WAIVER IS APPLICABLE
WHERE CONGRESS HAS SPECIFICALLY APPLIED LEGISLATION TO STATES AS
EMPLOYERS, WHERE THE CLASS OF PERSONS MEANT TO BE PROTECTED IS MUCH
GREATER, AND WHERE THE PURPOSE AND NEED OF REGULATION IS MORE
FUNDAMENTAL AND PRESSING EXPRESSION OF CONGRESSIONAL REGULATION OF
COMMERCE."  17 VILL.  L. REV. 713, 720 - 721 (1972). 

FINALLY, THE SECRETARY'S ENFORCEMENT POWERS ARE DISCRETIONARY. 
THUS, "(A) SUIT BY A STATE EMPLOYEE UNDER ^ 216(B) REPRESENTS THE ONLY
REMEDIAL PROVISIONS OF THE ACT WHICH ASSURES (A STATE EMPLOYEE) OF THE
OPPORTUNITY OF HAVING HIS CLAIM PRESENTED TO A COURT."  452 F.2D, AT
833 (BRIGHT, J., DISSENTING). 

/6/  MY BROTHER MARSHALL DISAGREES WITH THE COURT ON THIS ISSUE.  HE
TAKES THE POSITION THAT THE STATE COURTS MUST ENTERTAIN SUITS UNDER THE
FLSA AND, IN SUCH CASE, THE STATE IS FORECLOSED FROM RELYING ON THE
PROTECTION OF THE ANCIENT DOCTRINE OF SOVEREIGN IMMUNITY.  THE COURT,
ON THE OTHER HAND, ALTHOUGH STATING THAT IT "IS A QUESTION WE NEED NOT
REACH," TAKES THE POSITION THAT STATE EMPLOYEES "ARGUABLY" MAY MAINTAIN
A ^ 16(B) SUIT IN THE STATE COURTS, ANTE, AT 287, THUS IMPLYING THAT
THE STATES ARE NOT NECESSARILY COMPELLED TO ENTERTAIN SUCH SUITS. 

/7/  IN HANS V. LOUISIANA, A CITIZEN OF LOUISIANA ATTACKED HIS
STATE'S REPUDIATION OF ITS BOND OBLIGATIONS IN THE STATE CONSTITUTION
AS A VIOLATION OF THE CONTRACT CLAUSE PROHIBITION AGAINST PASSAGE BY
STATES OF LAWS IMPAIRING THE OBLIGATION OF CONTRACTS.  THE COURT HELD
THAT THE ACTION, ALTHOUGH ARISING UNDER THE CONSTITUTION AND LAWS OF
THE UNITED STATES WITHIN ART. III, WAS NOT MAINTAINABLE AGAINST
LOUISIANA WITHOUT ITS CONSENT.  MY BROTHER MARSHALL ARGUES IN N. 8 OF
HIS OPINION CONCURRING IN THE RESULT THAT MY VIEW THAT HANS INVOLVED
ONLY A QUESTION OF SOVEREIGN IMMUNITY IS AT ODDS WITH MY VIEW (SHARED
BY HIM AT LEAST AS TO THE COMMERCE CLAUSE) "THAT AT THE TIME THE UNION
WAS FORMED THE STATES SURRENDERED THAT PORTION OF THEIR SOVEREIGNTY
WHICH CONFLICTED WITH THE SUPREME FEDERAL POWERS."  THE OBVIOUS ERROR
IS IN MY BROTHER MARSHALL'S PREMISE THAT "SUCH A VIEW (AS TO THE
COMMERCE POWER) WOULD SEEM TO COMPEL THE CONCLUSION THAT THE STATES HAD
ALSO PRO TANTO SURRENDERED THEIR COMMON LAW IMMUNITY WITH RESPECT TO
ANY CLAIM UNDER THE CONTRACT CLAUSE."  THAT CONCLUSION IS NOT
COMPELLED.  BY BROTHER MARSHALL'S ARGUMENT IMPLIES THAT HANS, IF NOT
READ AS HOLDING THAT ART. III CREATED A JURISDICTIONAL BAR, MAY BE READ
AS HOLDING THAT ART. III INCORPORATED THE ANCIENT DOCTRINE, AND AS ALSO
HOLDING THAT THE STATES, AT LEAST IN THE CASE OF THE CONTRACT CLAUSE,
HAD NOT SURRENDERED THAT IMMUNITY IN FORMING THE UNION.  I REJECT, OF
COURSE, THE PREMISE THAT HANS MAY BE READ AS A CONSTITUTIONAL
DECISION.  BUT ASSUMING A READING AS HOLDING THAT ART. III INCORPORATED
THE ANCIENT DOCTRINE, THERE WOULD BE NO INCONSISTENCY IN HOLDING THAT,
WHILE THE STATES SURRENDERED THAT IMMUNITY IN RESPECT TO ENUMERATED
POWERS GRANTED BY THE STATES TO THE NATIONAL GOVERNMENT, SUCH AS THE
COMMERCE POWER, THERE WAS NO SURRENDER IN RESPECT TO SELF-IMPOSED
PROHIBITIONS, AS IN THE CASE OF THE CONTRACT CLAUSE.  IN OTHER WORDS,
MY BROTHER MARHSALL'S "SUPREME FEDERAL POWERS" ARE ONLY THE ENUMERATED
POWERS WHOSE EFFECTIVE EXERCISE REQUIRED SURRENDER OF THE PROTECTION OF
THE ANCIENT DOCTRINE.  THE COMMERCE CLAUSE IS AN ENUMERATED POWER WHOSE
EFFECTIVE ENFORCEMENT REQUIRED SURRENDER OF IMMUNITY TO EMPOWER
CONGRESS, WHEN NECESSARY, TO SUBJECT THE STATES TO SUIT.  THE CONTRACT
CLAUSE, ON THE OTHER HAND, IS NOT AN ENUMERATED POWER AND THUS NOT
AMONG THE "SUPREME FEDERAL POWERS."  IT IS SIMPLY A PROHIBITION SELF
IMPOSED BY THE STATES UPON THEMSELVES AND IT GRANTED CONGRESS NO POWERS
OF ENFORCEMENT BY MEANS OF SUBJECTING THE STATES TO SUIT OR OTHERWISE. 
IN ALLOWING LOUISIANA THE ANCIENT IMMUNITY, THE COURT IN HANS TOOK
PARTICULAR CARE TO EMPHASIZE THAT THE ALLOWANCE IN NO OTHER RESPECT
PREVENTED EFFECTIVE ENFORCEMENT OF THE PROHIBITIONS OF THE CLAUSE.  THE
COURT SAID:  "WHILST THE STATE CANNOT BE COMPELLED BY SUIT TO PERFORM
ITS CONTRACTS, ANY ATTEMPT ON ITS PART TO VIOLATE PROPERTY OR RIGHTS
ACQUIRED UNDER ITS CONTRACTS, MAY BE JUDICIALLY RESISTED; AND ANY LAW
IMPAIRING THE OBLIGATION OF CONTRACTS UNDER WHICH SUCH PROPERTY OR
RIGHTS ARE HELD IS VOID AND POWERLESS TO AFFECT THEIR ENJOYMENT."  134
U.S., AT 20 - 21. 

A. L. ZWERDLING ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE CHARLES R. OLDHAM AND GEORGE KAUFMANN. 

CHARLES A. BLACKMAR, ASSISTANT ATTORNEY GENERAL OF MISSOURI, ARGUED
THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WAS JOHN C. DANFORTH,
ATTORNEY GENERAL. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES AS AMICUS CURIAE URGING REVERSAL.  ON THE BRIEF WERE SOLICITOR
GENERAL GRISWOLD AND RICHARD F. SCHUBERT. 
..END :























ASKEW, GOVERNOR OF FLORIDA, ET AL. V. AMERICAN WATERWAYS OPERATORS,
INC., ET AL., 411 U.S. 325 



       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF FLORIDA

        NO. 71 - 1082.  ARGUED NOVEMBER 14, 1972 -- DECIDED APRIL

   18, 1973; 335 F.SUPP.  1241, REVERSED. 


    FLORIDA OIL SPILL PREVENTION AND POLLUTION CONTROL ACT, FOR THE

  STATE'S RECOVERY OF CLEANUP COSTS AND IMPOSING STRICT, NO-FAULT

  LIABILITY ON WATERFRONT OIL-HANDLING FACILITIES AND SHIPS

  DESTINED FOR OR LEAVING SUCH FACILITIES FOR ANY OIL-SPILL DAMAGE

  TO THE STATE OR PRIVATE PERIONS, DOES NOT, IN THE CONTEXT OF THIS

  ACTION BY SHIPPING INTERESTS TO ENJOIN APPLICATION OF THE FLORIDA

  STATUTE, INVADE A REGULATORY AREA PRE-EMPTED BY THE FEDERAL WATER

QUALITY IMPROVEMENT ACT, WHICH IS CONCERNED SOLELY WITH RECOVERY

  OF ACTUAL CLEANUP COSTS INCURRED BY THE FEDERAL GOVERNMENT, AND

  PRESUPPOSES A COORDINATED FEDERAL-STATE EFFORT TO DEAL WITH

  COASTAL OIL POLLUTION.  NOR IS STATE'S POLICE POWER OVER

  SEA-TO-SHORE POLLUTION PRE-EMPTED BY THE ADMIRALTY EXTENSION ACT,

  WHICH DOES NOT PURPORT TO SUPPLY AN EXCLUSIVE REMEDY IN THIS

  ADMIRALTY-RELATED SITUATION.  SOUTHERN PACIFIC CO. V. JENSEN, 244

  U.S. 205, AND KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149,

  DISTINGUISHED.  PP. 329 - 344. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

[[HC327'(ORIGINAL DOCUMENT PAGE 327)' 

THIS ACTION WAS BROUGHT BY MERCHANT SHIPOWNERS AND OPERATORS, WORLD
SHIPPING ASSOCIATIONS, MEMBERS OF THE FLORIDA COASTAL BARGE AND TOWING
INDUSTRY, AND OWNERS AND OPERATORS OF OIL TERMINAL FACILITES AND HEAVY
INDUSTRIES LOCATED IN FLORIDA, TO ENJOIN APPLICATION OF THE FLORIDA OIL
SPILL PREVENTION AND POLLUTION CONTROL ACT, FLA. LAWS 1970, C. 70 - 224
(HEREINAFTER REFERRED TO AS THE FLORIDA ACT).  OFFICIALS RESPONSIBLE
FOR ENFORCING THE FLORIDA ACT WERE NAMED AS DEFENDANTS, BUT THE STATE
OF FLORIDA INTERVENED AS A PARTY DEFENDANT, ASSERTING THAT ITS
INTERESTS WERE MUCH BROADER THAN THOSE OF THE NAMED DEFENDANTS.  A
THREE-JUDGE COURT WAS CONVENED PURSUANT TO 28 U.S.C. ^ 2281. 

THE FLORIDA ACT IMPOSES STRICT LIABILITY FOR ANY DAMAGE INCURRED BY
THE STATE OR PRIVATE PERSONS AS A RESULT OF AN OIL SPILL IN THE STATE'S
TERRITORIAL WATERS FROM ANY WATERFRONT FACILITY USED FOR DRILLING FOR
OIL OR HANDLING THE TRANSFER OR STORAGE OF OIL ("TERMINAL FACILITY")
AND FROM ANY SHIP DESTINED FOR OR LEAVING SUCH FACILITY.  EACH OWNER OR
OPERATOR OF A TERMINAL FACILITY OR SHIP SUBJECT TO THE ACT MUST
ESTABLISH EVIDENCE OF FINANCIAL RESPONSIBILITY BY INSURANCE OR A SURETY
BOND.  /1/  IN ADDITION, THE FLORIDA ACT PROVIDES FOR REGULATION BY THE
STATE DEPARTMENT OF NATURAL RESOURCES WITH RESPECT TO CONTAINMENT GEAR
AND OTHER EQUIPMENT WHICH MUST BE MAINTAINED BY SHIPS AND TERMINAL
FACILITIES FOR THE PREVENTION OF OIL SPILLS. 

[[HC328'(ORIGINAL DOCUMENT PAGE 328)' 

SEVERAL MONTHS PIROR TO THE ENACTMENT OF THE FLORIDA ACT, CONGRESS
ENACTED THE WATER QUALITY IMPROVEMENT ACT OF 1970, 84 STAT. 91, 33
U.S.C. ^ 1161 ET SEQ. (HEREINAFTER REFERRED TO AS THE FEDERAL ACT). 
/1A/  THIS ACT SUBJECTS SHIP OWNERS AND TERMINAL FACILITIES TO
LIABILITY WITHOUT FAULT UP TO $14,000,000 AND $8,000,000, RESPECTIVELY,
FOR CLEANUP COSTS INCURRED BY THE FEDERAL GOVERNMENT AS A RESULT OF OIL
SPILLS.  IT ALSO AUTHORIZES THE PRESIDENT TO PROMULGATE REGULATIONS
REQUIRING SHIPS AND TERMINAL FACILITIES TO MAINTAIN EQUIPMENT FOR THE
PREVENTION OF OIL SPILLS.  IT IS AROUND THAT ACT AND THE FEDERALLY
PROTECTED TENETS OF MARITIME LAW EVIDENCED BY SOUTHERN PACIFIC CO. V.
JENSEN, 244 U.S. 205, AND ITS PROGENY THAT THE CONTROVERSY TURNS.  THE
DISTRICT COURT HELD THAT THE FLORIDA ACT IS AN UNCONSTITUTIONAL
INTRUSION INTO THE FEDERAL MARITIME DOMAIN.  IT DECLARED THE FLORIDA
ACT NULL AND VOID AND ENJOINED ITS ENFORCEMENT.  335 F. SUPP. 1241. 

THE CASE IS HERE ON DIRECT APPEAL.  WE REVERSE.  WE FIND NO
CONSTITUTIONAL OR STATUTORY IMPEDIMENT TO PERMITTING FLORIDA, IN THE
PRESENT SETTING OF THIS CASE, TO ESTABLISH ANY "REQUIREMENT OF
LIABILITY" CONCERNING THE IMPACT OF OIL SPILLAGES ON FLORIDA'S
INTERESTS OR CONCERNS.  TO RULE AS THE DISTRICT COURT HAS DONE IS TO
ALLOW FEDERAL ADMIRALTY JURISDICTION TO SWALLOW MOST OF THE POLICE
POWER OF THE STATES OVER OIL SPILLAGE -- AN INSIDIOUS FORM OF POLLUTION
OF VAST CONCERN TO EVERY COASTAL CITY OR PORT AND TO ALL THE ESTUARIES
ON WHICH THE LIFE OF THE OCEAN AND THE LIVES OF THE COASTAL PEOPLE ARE
GREATLY DEPENDENT. 

[[HC329'(ORIGINAL DOCUMENT PAGE 329)'

        I 

IT IS CLEAR AT THE OUTSET THAT THE FEDERAL ACT DOES NOT PRECLUDE,
BUT IN FACT ALLOWS, STATE REGULATION.  SECTION 1161(O) PROVIDES THAT: 

     "(1) NOTHING IN THIS SECTION SHALL AFFECT OR MODIFY IN ANY WAY

  THE OBLIGATIONS OF ANY OWNER OR OPERATOR OF ANY VESSEL, OR OF ANY

  OWNER OR OPERATOR OF ANY ONSHORE FACILITY OR OFFSHORE FACILITY TO

  ANY PERSON OR AGENCY UNDER ANY PROVISION OF LAW FOR DAMAGES TO

  ANY PUBLICLY-OWNED OR PRIVATELY-OWNED PROPERTY RESULTING FROM A

  DISCHARGE OF ANY OIL OR FROM THE REMOVAL OF ANY SUCH OIL. 

     "(2) NOTHING IN THIS SECTION SHALL BE CONSTRUED AS PREEMPTING

  ANY STATE OR POLITICAL SUBDIVISION THEREOF FROM IMPOSING ANY

  REQUIREMENT OR LIABILITY WITH RESPECT TO THE DISCHARGE

OF OIL INTO ANY WATERS WITHIN SUCH STATE. 

     "(3) NOTHING IN THIS SECTION SHALL BE CONSTRUED . . . TO
AFFECT

  ANY STATE OR LOCAL LAW NOT IN CONFLICT WITH THIS SECTION." 

  (EMPHASIS ADDED). 

ACCORDING TO THE CONFERENCE REPORT, "ANY STATE WOULD BE FREE TO PROVIDE
REQUIREMENTS AND PENALTIES SIMILAR TO THOSE IMPOSED BY THIS SECTION OR
ADDITIONAL REQUIREMENTS AND PENALTIES.  THESE, HOWEVER, WOULD BE
SEPARATE AND INDEPENDENT FROM THOSE IMPOSED BY THIS SECTION AND WOULD
BE ENFORCED BY THE STATES THROUGH ITS COURTS."  /2/  THE FLORIDA ACT
COVERS A WIDE RANGE OF "POLLUTANTS," ^ 3 (7), AND A RESTRICTED
DEFINITION OF POLLUTION ^ 3 (8).  WE HAVE HERE, HOWEVER, NO QUESTION
CONCERNING ANY POLLUTANT EXCEPT OIL. 

THE FEDERAL ACT, TO BE SURE, CONTAINS A PERVASIVE SYSTEM OF FEDERAL
CONTROL OVER DISCHARGES OF OIL "INTO OR UPON THE NAVIAGBLE WATERS OF
THE UNITED STATES, ADJOINING SHORELIENS, OR INTO OR UPON THE WATERS OF
THE CONTIGUOUS ZONE." 

[[HC330'(ORIGINAL DOCUMENT PAGE 330)'  ^ 1161 (B) (1).  SO FAR AS
LIABILITY IS CONCERNED, AN OWNER OR OPERATOR OF A VESSEL IS LIABLE TO
THE UNITED STATES FOR ACTUAL COSTS INCURRED FOR THE REMOVAL OF OIL
DISCHARGED IN VIOLATION OF ^ 1161(B) (2) IN AN AMOUNT "NOT TO EXCEED
$100 PER GROSS TON OF SUCH VESSEL OR $14,000,000, WHICHEVER IS LESSER,"
^ 1161(F) (1), EXCEPT FOR DISCHARGES CAUSED SOLELY BY AN ACT OF GOD,
ACT OF WAR, NEGLIGENCE OF THE UNITED STATES, OR ACT OR OMISSION OF
ANOTHER PARTY.  WITH LIKE EXCEPTIONS THE OWNER OR OPERATOR OF AN
ONSHORE OR OFFSHORE FACILITY IS LIABLE TO THE UNITED STATES FOR THE
ACTUAL COSTS INCURRED BY THE UNITED STATES IN AN AMOUNT NOT TO EXCEED
$8,000,000.  ^ 1161(F) (2) - (3).  BUT IN EACH CASE THE OWNER OR
OPERATOR IS LIABLE TO THE UNITED STATES FOR THE FULL AMOUNT OF THE
COSTS WHERE THE UNITED STATES CAN SHOW THAT THE DISCHARGE OF OIL WAS
"THE RESULT OF WILLFUL NEGLIGENCE OR WILLFUL MISCONDUCT WITHIN THE
PRIVITY AND KNOWLEDGE OF THE OWNER."  COMPARABLE PROVISIONS OF
LIABILITY SPELL OUT THE OBLIGATIONS OF "A THIRD PARTY" TO THE UNITED
STATES FOR ITS ACTUAL COSTS INCURRED IN THE REMOVAL OF THE OIL.  ^
1161(G). 

SO FAR AS VESSELS ARE CONCERNED THE FEDERAL LIMITED LIABILITY ACT,
46 U.S.C. ^^ 181 - 189, EXTENDS TO DAMAGES CAUSED BY OIL SPILLS EVEN
WHERE THE INJURY IS TO THE SHORE.  RICHARDSON V. HARMON, 222 U.S. 96,
106.  THAT ACT LIMITS THE LIABILITIES OF THE OWNERS OF VESSELS TO THE
"VALUE OF SUCH VESSELS AND FREIGHT PENDING."  46 U.S.C. ^ 189. 

FACILITIES "LIABLE TO THE STATE FOR ALL COSTS OF CLEANUP OR OTHER
DAMAGE INCURRED BY THE STATE AND FOR DAMAGES RESULTING FROM INJURY TO
OTHERS,"  IT NOT BEING NECESSARY FOR THE STATE TO PLEAD OR PROVE
NEGLIGENCE.  /4/ 

[[HC331'(ORIGINAL DOCUMENT PAGE 331)'  THERE IS NO CONFLICT BETWEEN
^ 12 OF THE FLORIDA ACT AND ^ 1161 OF THE FEDERAL ACT WHEN IT COMES TO
DAMAGES TO PROPERTY INTERESTS, FOR THE FEDERAL ACT REACHES ONLY COSTS
OF CLEANING UP. AS RESPECTS DAMAGES, ^ 14 OF THE FLORIDA ACT REQUIRES
EVIDENCE OF FINANCIAL RESPONSIBLITY OF A TERMIANL FACILITY OR VESSEL --
A PROVISION WHICH DOES NOT CONLICT WITH THE FEDERAL ACT. 

THE SOLICITOR GENERAL SAYS THAT WHILE THE LIMITED LIABILITY ACT, SO
FAR AS VESSELS ARE CONCERNED, WOULD OVERRIDE ^ 12 OF THE FLORIDA ACT BY
REASON OF THE SUPREMACY CLAUSE, THE LIMITED LIABILITY ACT HAS NO
BEARING ON "FACILITES" REGULATED BY THE FLORIDA ACT.  MOREOVER, ^ 12
HAS NOT YET BEEN CONSTRUED BY THE FLORIDA COURTS AND IT IS SUSCEPTIBLE
OF AN INTERPRETATION SO FAR AS VESSELS ARE CONCERNED WHICH WOULD BE IN
HARMONY WITH THE FEDERAL ACT.  SECTION 12 DOES NOT IN TERMS PROVIDE FOR
UNLIMITED LIABILITY. 

MOREOVER, WHILE THE FEDERAL ACT DETERMINES DAMAGES MEASURED BY THE
COST TO THE UNITED STATES FOR CLEANING UP OIL SPILLS, THE DAMAGES
SPECIFIED IN THE FLORIDA ACT RELATE IN PART TO THE COST TO THE STATE OF
FLORIDA IN CLEANING UP THE SPILLAGE.  THOSE TWO SECTIONS ARE HARMONIOUS
PARTS OF AN INTEGRATED WHOLE.  SECTION 1161(C) (2) DIRECTS THE
PRESIDENT TO PREPARE A NATIONAL CONTINGENY PLAN FOR THE CONTAINMENT,
DISPERSAL, AND REMOVAL OF OIL. 

[[HC332'(ORIGINAL DOCUMENT PAGE 332)'  THE PLAN MUST PROVIDE THAT
FEDERAL AGENCIES "SHALL" ACT "IN CORRDINATION WITH STATE AND LOCAL
AGENCIES."  COOPERATIVE ACTION WITH THE STATES IS ALSO CONTEMPLATED BY
^ 1161(E), WHICH PROVIDES THAT "(IN ADDITION TO ANY OTHER ACTION TAKEN
BY A STATE OR LOCAL GOVERNMENT" THE PRESIDENT MAY, WHEN THERE IS AN
IMMINENT AND SUBSTANTIAL THREAT TO THE PUBLIC HEALTH OR WELFARE, DIRECT
THE UNITED STATES ATTORNEY OF THE DISTRICT IN QUESTION TO BRING SUIT TO
ABATE THE THREAT.  THE REASON FOR THE PROVISION IN ^ 1161(O) (2),
STATING THAT NOTHING IN ^ 1161 PRE-EMPTS ANY STATE "FROM IMPOSING ANY
REQUIREMENT OR LIABILITY WITH RESPECT TO THE DISCHARGE OF OIL INTO ANY
WATERS WITHIN SUCH STATE," IS THAT THE SCHEME OF THE ACT IS ONE WHICH
ALLOWS -- THOUGH IT DOES NOT REQUIRE -- COOPERATION OF THE FEDERAL
REGIME WITH A STATE REGIME. 

IF FLORIDA WANTS TO TAKE THE LEAD IN CLEANING UP OIL SPILLAGE IN HER
WATERS, SHE CAN USE ^ 12 OF THE FLORIDA ACT AND RECOUP HER COSTS FROM
THOSE WHO DID THE DAMAGE.  WHETHER THE AMOUNT OF COSTS SHE COULD
RECOVER FROM A WRONGDOER IS LIMITED TO THOSE SPECIFIED IN THE FEDERAL
ACT AND WHETHER IN TURN THIS NEW FEDERAL ACT REMOVES THE PRE-EXISTING
LIMITATIONS OF LIABILITY IN THE LIMITED LIABILITY ACT ARE QUESTIONS WE
NEED NOT REACH HERE.  ANY OPINION ON THEM IS PREMATURE.  IT IS
SUFFICIENT FOR THIS DAY TO HOLD THAT THERE IS ROOM FOR STATE ACTION IN
CLEANING UP THE WATERS OF A STATE AND RECOUPING, AT LEAST WITHIN
FEDERAL LIMITS, SO FAR AS VESSELS ARE CONCERNED, HER COSTS. 

BEYOND THAT IS THE POTENTIAL CLAIM UNDER ^ 12 OF THE FLORIDA ACT FOR
"OTHER DAMAGE INCURRED BY THE STATE AND FOR DAMAGES RESULTING FROM
INJURY TO OTHERS."  THE FEDERAL ACT IN NO WAY TOUCHES THOSE AREAS.  A
STATE MAY HAVE PUBLIC BEACHES RUINED BY OIL SPILLS. 

[[HC333'(ORIGINAL DOCUMENT PAGE 333)'  SHRIMP MAY BE DESTROYED, AND
CLAM, OYSTER, AND SCALLOP BEDS RUINED AND THE LIVELIHOOD OF FISHERMEN
IMPERILED.  /5/  THE FEDERAL ACT TAKES NO COGNIZANCE THOSE CLAIMS BUT
ONLY OF COSTS TO THE FEDERAL GOVERNMENT, IF IT DOES THE CLEANING UP. 

[[HC334'(ORIGINAL DOCUMENT PAGE 334)' 

WE HELD IN SKIRIOTES V. FLORIDA, 313 U.S. 69, THAT WHILE CONGRESS
HAD REGULATED THE SIZE OF COMMERCIAL SPONGES TAKEN IN FLORIDA WATERS,
IT HAD NOT DEALT WITH ANY DIVING APPARATUS THAT MIGHT BE USED.  FLORIDA
HAD SUCH A LAW AND WAS ALLOWED TO ENFORCE IT AGAINST ONE OF ITS
CITIZENS.  MR. CHIEF JUSTICE HIGHES, SPEAKING FOR THE COURT, SAID:  "IT
IS ALSO CLEAR THAT FLORIDA HAS AN INTEREST IN THE PROPER MAINTNANCE OF
THE SPONGE FISHERY AND THAT THE STATUTE SO FAR AS APPLIED TO CONDUCT
WITHIN THE TERRITORIAL WATERS OF FLORIDA, IN THE ABSENCE OF CONFLICTING
FEDERAL LEGISLATION, IS WITHIN THE POLICE POWER OF THE STATE."  ID., AT
75. 

SIMILARLY, IN MANCHESTER V. MASSACHUSETTS, 139 U.S. 240, 266, WE
STATED THAT IF CONGRESS FAILS TO ASSUME CONTROL OF FISHERIES IN A BAY,
"THE RIGHT TO CONTROL SUCH FISHERIES MUST REMAIN WITH THE STATE WHICH
CONTAINS SUCH BAYS." 

FLORIDA IN HER BRIEF ACCURATELY STATES THAT NO REMEDY UNDER THE
FEDERAL ACT EXISTS FOR STATE OR PRIVATE PROPERTY OWNERS DAMAGED BY A
MASSIVE OIL SLICK SUCH AS HIT ENGLAND AND FRANCE IN 1967 IN THE TORREY
CANYON DISASTER.  THE TORREY CANYON CARRIER 880,000 BARRELS OF CRUDE
OIL.  /6/ 

[[HC335'(ORIGINAL DOCUMENT PAGE 335)'  TODAY NOT ONLY IS MORE OIL
BEING MOVED BY SEA EACH YEAR BUT THE TANKERS ARE MUCH LARGER. 

"THE AVERAGE TANKER USED DURING WORLD WAR II HAD A CAPACITY OF
16,000 TONS, BUT BY 1965 THAT AVERAGE HAD RISEN TO 27,000 TONS, AND NEW
TANKERS DELIVERED IN 1966 AVERAGED ABOUT 76,000 TONS.  A JAPANESE
COMPANY HAS LAUNCHED A 276,000-TON TANKER, AND OTHER JAPANESE YARDS
HAVE ORDERS FOR TANKERS AS LARGE AS 312,000 TONS.  MORE THAN SIXTY
TANKERS OF 150,000 TONS OR MORE ARE ON ORDER THROUGHOUT THE WORLD,
TANKERS OF 500,000 TO 800,000 TONS ARE ON THE DRAWING BOARDS, AND THOSE
OF MORE THAN ONE MILLION TONS ARE THOUGHT TO BE FEASIBLE.  ON THE NEW
1,010 FOOT BRITISH TANKER 'ESSO MERCIA' TWO OFFICERS HAVE BEEN ISSUED
BICYCLES TO HELP PATROL THE DECKS OF THE 166,890 TON VESSEL. 

"THE SIZE OF THE TANKER FLEET ITSELF IS GROWING AT A RATE THAT
RIVALS THE GROWTH IN AVERAGE SIZE OF NEW TANKERS.  IN 1955 THE WORLD
TANKER FLEET NUMBERED ABOUT 2,500 VESSELS.  BY 1965 IT HAD INCREASED TO
3,500, AND IN 1968 IT NUMBERED SOME 4,300 SHIPS.  AT THE PRESENT TIME
NEARLY ONE SHIP OUT OF EVERY FIVE IN THE WORLD MERCHANT FLEET IS
ENGAGED IN TRANSPORTING OIL, AND NEARLY THE ENTIRE FLEET IS POWERED BY
OIL."  /7/ 

OUR COAST GUARD REPORTS  /8/  THAT WHILE IN 1970 THERE WERE 3,711
OIL SPILLS IN OUR WATERS, IN 1971 THERE WERE 8,736.  THE DAMAGE TO
STATE INTERESTS ALREADY CAUSED BY OIL SPILLS, THE INCREASE IN THE
NUMBER OF OIL SPILLS, AND THE RISK OF EVER-INCREASING DAMAGE BY REASON
OF THE SIZE OF MODERN TANKERS UNDERLIE THE CONCERN OF COASTAL STATES. 

WHILE THE FEDERAL ACT IS CONCERNED ONLY WITH ACTUAL CLEANUP COSTS
INCURRED BY THE FEDERAL GOVERNMENT, THE STATE OF FLORIDA IS CONCERNED
WITH ITS OWN CLEANUP COSTS.     [[HC336'(ORIGINAL DOCUMENT PAGE 336)'
HENCE THERE NEED BE NO COLLISION BETWEEN THE FEDERAL ACT AND THE
FLORIDA ACT BECAUSE, AS NOTED, THE FEDERAL ACT PRESUPPOSES A
COORDINATED EFFORT WITH THE STATES, AND ANY FEDERAL LIMITATION OF
LIABILITY RUNS TO "VESSELS," NOT TO SHORE "FACILITIES."  THAT IS ONE OF
THE REASONS WHY THE CONGRESS DECIDED THAT THE FEDERAL ACT DOES NOT PRE
EMPT THE STATES FROM ESTABLISHING EITHER "ANY REQUIREMENT OR LIABILITY"
RESPECTING OIL SPILLS. 

"MOREOVER, SINCE CONGRESS DEALT ONLY WITH "CLEANUP" COSTS, IT LEFT
THE STATES FREE TO IMPOSE "LIABILITY" IN DAMAGES FOR LOSSES SUFFERED
BOTH BY THE STATES AND BY PRIVATE INTEREST.  THE FLORIDA ACT IMPOSES
LIABILITY WITHOUT FAULT.  SO FAR AS LIABILITY WITHOUT FAULT FOR DAMAGES
TO STATE AND PRIVATE INTERESTS IS CONCERNED, THE POLICE POWER HAS BEEN
HELD ADEQUATE FOR THAT PURPOSE.  STATE STATUTES IMPOSING ABSOLUTE
LIABILITY ON RAILROADS FOR ALL PROPERTY LOST THROUGH FIRES CAUSED BY
SPARKS EMITTED FROM LOCOMOTIVE ENGINES HAVE BEEN SUSTAINED.  ST. LOUIS
& SAN FRANCISCO R. CO. V. MATHEWS, 165 U.S. 1.  THE FEDERAL ACT,
HOWEVER, WHILE RESTRICTED TO CLEANUP COSTS INCURRED BY THE UNITED
STATES, IMPOSES LIMITED LIABILITY FOR THOSE COSTS AND PROVIDES CERTAIN
EXCEPTIONS, UNLESS WILLFULNESS IS ESTABLISHED.  WHERE LIABILITY IS
IMPOSED BY ^^ 1161(F) - (G), PREVIOUSLY SUMMARIZED, THE UNITED STATES
MAY RECOVER THE FULL AMOUNT OF THE COSTS WHERE THE OIL SPILLAGE WAS THE
RESULT OF "WILLFUL NEGLIGENCE OR WILLFUL MISCONDUCT."  IF THE
CORRDINATED FEDERAL PLAN IN ACTUAL OPERATION LEAVES THE STATE OF
FLORIDA TO DO THE CLEANUP WORK, THERE MIGHT BE FINANCIAL BURDENS
IMPOSED GREATER THAN WOULD HAVE BEEN IMPOSED HAD THE FEDERAL GOVERNMENT
DONE THE CLEANUP WORK.  BUT IT WILL BE TIME TO RESOLVE ANY SUCH
CONFLICT BETWEEN FEDERAL AND STATE REGIMES WHEN IT ARISES. 

NOR CAN WE SAY AT THIS POINT THAT REGULATIONS OF THE FLORIDA
DEPARTMENT OF NATURAL RESOURCES REQUIRING "CONTAINMENT GEAR" PURSUANT
TO ^ 7(2) (A) OF THE FLORIDA ACT WOULD BE PER SE INVALID BECAUSE THE
SUBJECT TO BE REGULATED REQUIRES UNIFORM FEDERAL REGULATION. 

[[HC337'(ORIGINAL DOCUMENT PAGE 337)'  CF. HURON CEMENT CO. V.
DETROIT, 362 U.S. 440.  RESOLUTION OF THIS QUESTION, AS WELL AS THE
QUESTION WHETHER SUCH REGULATIONS WILL CONFLICT WITH COAST GUARD
REGULATIONS PROMULGATED ON DECEMBER 21, 1972, PURSUANT TO ^ 1161(J) (1)
OF THE FEDERAL ACT, 37 FED. REG. 28250, SHOULD AWAIT A CONCRETE DISPUTE
UNDER APPLICABLE FLORIDA REGULATIONS.  FINALLY, THE PROVISION OF THE
FLORIDA ACT REQUIRING THE LICENSING OF TERMINAL FACILITIES, A
TRADITIONAL STATE CONCERN, CREATES NO CONFLICT PER SE WITH FEDERAL
LEGISLATION.  SECTION 1171(B) (1) OF THE FEDERAL ACT PROVIDES THAT
FEDERAL PERMITS WILL NOT BE ISSUED TO TERMINAL FACILITY OPERATORS OR
OWNERS UNLESS THE APPLICANT FIRST SUPPLIES A CERTIFICATE FROM THE STATE
THAT HIS OPERATION "WILL BE CONDUCTED IN A MANNER WHICH WILL NOT
VIOLATE APPLICABLE WATER QUALITY STANDARDS."  AND TIT. 1, ^ 102(B), OF
THE RECENTLY ENACTED PORTS AND WATERWAYS SAFETY ACT OF 1972, PUB. L. 92
- 340, 86 STAT. 424, PROVIDES THAT THE ACT DOES NOT PREVENT "A STATE OR
POLITICAL SUBDIVISION THEREOF FROM PRESCRIBING FOR STRUCTURES ONLY
HIGHER SAFETY EQUIPMENT REQUIREMENTS OR SAFETY STANDARDS THAN THOSE
WHICH MAY BE PRESCRIBED PURSUANT TO THIS TITLE." 

        II 

AND SO, IN THE ABSENCE OF FEDERAL PRE-EMPTION AND ANY FATAL CONFLICT
BETWEEN THE STATUTORY SCHEMES, THE ISSUE COMES DOWN TO WHETHER A STATE
CONSTITUTIONALLY MAY EXERCISE ITS POLICE POWER RESPECTING MARITIME
ACTIVITIES CONCURRENTLY WITH THE FEDERAL GOVERNMENT. 

THE MAIN BARRIER FROUND BY THE DISTRICT COURT TO THE FLORIDA ACT ARE
SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, AND ITS PROGENY.  JENSEN
HELD THAT A MARITIME WORKER ON A VESSEL IN NAVIGABLE WATERS COULD NOT
CONSTITUTIONALLY RECEIVE AN AWARD UNDER NEW YORK'S WORKMEN'S
COMPENSATION LAW, BECAUSE THE REMEDY IN ADMIRALTY WAS EXCLUSIVE. 

[[HC338'(ORIGINAL DOCUMENT PAGE 338)'  LATER, IN KNICKERBOCKER ICE
CO. V. STEWART, 253 U.S. 149, AFTER CONGRESS EXPRESSLY ALLOWED THE
STATES IN SUCH CASES TO GRANT A REMEDY, THE COURT HELD THAT CONGRESS
HAD NO SUCH POWER. 

BUT THOSE DECISIONS HAVE BEEN LIMITED BY SUBSEQUENT HOLDINGS OF THIS
COURT.  AS STATED BY MR. JUSTICE FRANKFURTER IN ROMERO V. INTERNATIONAL
TERMINAL CO., 358 U.S. 354, 373, JENSEN AND ITS PROGENY MARK ISOLATED
INSTANCES WHERE "STATE LAW MUST YIELD TO THE NEEDS OF A UNIFORM FEDERAL
MARITIME LAW WHEN THIS COURT FINDS INROADS ON A HARMONIOUS SYSTEM." 
MR. JUSTICE FRANKFURTER ADDED, HOWEVER:  "BUT THIS LIMITATION STILL
LEAVES THE STATES A WIDE SCOPE.  STATE-CREATED LIENS ARE ENFORCED IN
ADMIRALTY.  STATE REMEDIES FOR WRONGFUL DEATH AND STATE STATUTES
PROVIDING FOR THE SURVIVAL OF ACTIONS, BOTH HISTORICALLY ABSENT FROM
THE RELIEF OFFERED BY THE ADMIRALTY, HAVE BEEN UPHELD WHEN APPLIED TO
MARITIME CAUSES OF ACTION.  FEDERAL COURTS HAVE ENFORCED THESE
STATUTES.  STATE RULES FOR THE PARTITION AND SALE OF SHIPS, STATE LAWS
GOVERNING THE SPECIFIC PERFORMANCE OF ARBITRATION AGREEMENTS, STATE
LAWS REGULATING THE EFFECT OF A BREACH OF WARRANTY UNDER CONTRACTS OF
MARITIME INSURANCE -- ALL THESE LAWS AND OTHERS HAVE BEEN ACCEPTED AS
RULES OF DECISION IN ADMIRALTY CASES, EVEN, AT TIMES, WHEN THEY
CONFLICTED WITH A RULE OF MARITIME LAW WHICH DID NOT REQUIRE
UNIFORMITY."  ID., AT 373 - 374. 

MOREOVER, IN JUST V. CHAMBERS, 312 U.S. 383, WE GAVE OUR APPROVAL TO
THE CITY OF NORWALK, 55 F.98, WRITTEN BY JUDGE ADDISON BROWN, HOLDING
THAT A STATE MAY MODIFY OR SUPPLEMENT MARITIME LAW EVEN BY CREATING A
LIABILITY WHICH A COURT OF ADMIRALTY WOULD RECOGNIZE AND ENFORCE,
PROVIDED THE STATE ACTION IS NOT HOSTILE "TO THE CHARACTERISTIC
FEATURES OF THE MARITIME LAW OR INCONSISTENT WITH FEDERAL LEGISLATION,"
312 U.S., AT 388.  MR. CHIEF JUSTICE HUGHES AFTER CITING STEAMBOAT CO.
V. CHASE, 16 WALL.  522, AND SHERLOCK V. ALLING, 93 U.S. 99, WENT ON TO
HOLD THAT, WHILE NO SUIT FOR WRONGFUL DEATH WOULD LIE IN THE FEDERAL
COURTS UNDER GENERAL MARITIME LAW, STATE STATUTES GIVING DAMAGES IN
SUCH CASES WERE VALID. 

[[HC339'(ORIGINAL DOCUMENT PAGE 339)'  HE SAID, "THE GROUNDS OF
OBJECTION TO THE ADMIRALTY JURISDICTION IN ENFORCING LIABILITY FOR
WRONGFUL DEATH WERE SIMILAR TO THOSE URGED HERE; THAT IS, THAT THE
CONSTITUTION PRESUPPOSES A BODY OF MARITIME LAW, THAT THIS LAW, AS A
MATTER OF INTERSTATE AND INTERNATIONAL CONCERN, REQUIRES HARMONY IN ITS
ADMINISTRATION AND CANNOT BE SUBJECT TO DEFEAT OR IMPAIRMENT BY THE
DIVERSE LEGISLATION OF THE STATES, AND HENCE THAT CONGRESS ALONE CAN
MAKE ANY NEEDED CHANGES IN THE GENERAL RULES OF THE MARITIME LAW.  BUT
THESE CONTENTIONS PROVED UNAVAILING AND THE PRINCIPLE WAS MAINTAINED
THAT A STATE, IN THE EXERCISE OF ITS POLICE POWER, MAY ESTABLISH RULES
APPLICABLE ON LAND AND WATER WITHIN ITS LIMITS, EVEN THOUGH THESE RULES
INCIDENTALLY AFFECT MARITIME AFFAIRS, PROVIDED THAT THE STATE ACTION
'DOES NOT CONTRAVENE ANY ACTS OF CONGRESS, NOR WORK ANY PREJUDICE TO
THE CHARACTERISTIC FEATURES OF THE MARITIME LAW, NOR INTERFERE WITH ITS
PROPER HARMONY AND UNIFORMITY IN ITS INTERNATIONAL AND INTERSTATE
RELATIONS."  IT WAS DECIDED THAT THE STATE LEGISLATION ENCOUNTERED NONE
OF THESE OBJECTIONS.  THE MANY INSTANCES IN WHICH STATE ACTION HAD
CREATED NEW RIGHTS, RECOGNIZED AND ENFORCED IN ADMIRALTY, WERE SET
FORTH IN THE CITY OF NORWALK, AND REFERENCE WAS ALSO MADE TO THE
NUMEROUS LOCAL REGULATIONS UNDER STATE AUTHORITY CONCERNING THE
NAVIGATION OF RIVERS AND HARBORS.  THERE WAS THE FURTHER PERTINENT
OBSERVATION THAT THE MARITIME LAW WAS NOT A COMPLETE AND PERFECT SYSTEM
AND THAT IN ALL MARITIME COUNTRIES THERE IS A CONSIDERABLE BODY OF
MUNICIPAL LAW THAT UNDERLIES THE MARITIME LAW AS THE BASIS OF ITS
ADMINISTRATION.  THESE VIEWS FIND ABUNDANT SUPPORT IN THE HISTORY OF
THE MARITIME LAW AND IN THE DECISIONS OF THIS COURT."  312 U.S., AT 389
- 390. 

MR. CHIEF JUSTICE HUGHES ADDED THAT OUR DECISIONS AS OF 1941, THE
DATE OF JUST V. CHAMBERS, GAVE BROAD "RECOGNITION OF THE AUTHORITY OF
THE STATES TO CREATE RIGHTS AND LIABILITIES WITH RESPECT TO CONDUCT
WITHIN THEIR BORDERS, WHEN THE STATE ACTION DOES NOT RUN COUNTER TO
FEDERAL LAWS OR THE ESSENTIAL FEATURES OF AN EXCLUSIVE FEDERAL
JURISDICTION." 

[[HC340'(ORIGINAL DOCUMENT PAGE 340)'  ID., AT 391. 

HISTORICALLY, DAMAGES TO THE SHORE OR TO SHORE FACILITES WERE NOT
COGNIZABLE IN ADMIRALTY.  SEE, E. G., THE PLYMOUTH, 3 WALL.  20; MARTIN
V. WEST, 222 U.S. 191.  MR. JUSTICE STORY WROTE IN 1813, "IN REGARD TO
TORTS I HAVE ALWAYS UNDERSTOOD, THAT THE JURISDICTION OF THE ADMIRALTY
IS EXCLUSIVELY DEPENDENT UPON THE LOCALITY OF THE ACT.  THE ADMIRALTY
HAS NOT, AND NEVER (I BELIEVE) DELIBERATELY CLAIMED TO HAVE ANY
JURISDICTION OVER TORTS, EXCEPT SUCH AS ARE MARITIME TORTS, THAT IS,
SUCH AS ARE COMMITTED ON THE HIGH SEAS, OR ON WATERS WITHIN THE EBB AND
FLOW OF THE TIDE."  /9/  THOMAS V. LANE, 23 F. CAS. 957, 960 (NO.
13,902) (CC ME.). 

ON JUNE 19, 1948, CONGRESS ENACTED THE ADMIRALTY EXTENSION ACT, 46
U.S.C. 740.  /10/  THE COURT CONSIDERED THE ACT IN VICTORY CARRIERS,
INC. V. LAW, 404 U.S. 202.  IN THAT CASE, THE COURT HELD THAT THE
ADMIRALTY EXTENSION ACT DID NOT APPLY TO A LONGSHOREMAN PERFORMING
LEADING AND UNLOADING SERVICES ON THE DOCK.  THE LONGSHOREMAN WAS
RELEGATED TO HIS REMEDY UNDER THE STATE WORKMEN'S COMPENSATION LAW. 
ID., AT 215.  THE COURT SAID, "AT LEAST IN THE ABSENCE OF EXPLICIT
CONGRESSIONAL AUTHORIZATION, WE SHALL NOT EXTEND THE HISTORIC
BOUNDARIES OF THE MARITIME LAW."  HC341'(ORIGINAL DOCUMENT PAGE 341)'
ID., AT 214  /11/ 

THE ADMIRALTY EXTENSION ACT HAS SURVIVED CONSTITUTIONAL ATTACK IN
THE LOWER FEDERAL COURTS /12/  AND WAS APPLIED WITHOUT QUESTION BY THIS
COURT IN GUTIERREZ V. WATERMAN S. S. CORP., 373 U.S. 206.  THE COURT
RECOGNIZED IN VICTORY CARRIERS, HOWEVER, THAT THE ACT MAY "INTRUDE ON
AN AREA THAT HAS HERETOFORE BEEN RESERVED FOR STATE LAW."  ID., AT
212.  IT CAUTIONED THAT UNDER THESE CIRCUMSTANCE, "WE SHOULD PROCEED
WITH CAUTION IN CONSTRUING CONSTITUTIONAL AND STATUTORY PROVISIONS
DEALING WITH THE JURISDICTION OF THE FEDERAL COURTS."  IBID.  WHILE
CONGRESS HAS EXTENDED ADMIRALTY JURISDICTION BEYOND THE BOUNDARIES
CONTEMPLATED BY THE FRAMERS, IT HARDLY FOLLOWS FROM THE
CONSTITUTIONALITY OF THAT EXTENSION THAT WE MUST SANCTIFY THE FEDERAL
COURTS WITH EXCLUSIVE JURISDICTION TO THE EXCLUSION OF POWERS
TRANDITIONALLY WITHIN THE COMPETENCE OF THE STATES.  ONE CAN READ THE
HISTORY OF THE ADMIRALTY EXTENSION ACT WITHOUT FINDING ANY CLEAR
INDICATION THAT CONGRESS INTENDED THAT SEA-TO-SHORE INJURIES BE
EXCLUSIVELY TRIABLE IN THE FEDERAL COURTS.  /13/ 

EVEN THOUGH CONGRESS HAS ACTED IN THE ADMIRALTY AREA, STATE
REGULATION IS PERMISSIBLE, ABSENT A CLEAR CONFLICT WITH THE FEDERAL
LAW.  THUS IN KELLY V. WASHINGTON, 302 U.S. 1, IT APPEARED THAT, WHILE
CONGRESS HAD PROVIDED A COMPREHENSIVE SYSTEM OF INSPECTION OF VESSELS
ON NAVIGABLE WATERS, ID., AT 4, THE STATE OF WASHINGTON ALSO HAD A
COMPREHENSIVE CODE OF INSPECTION. 

[[HC342'(ORIGINAL DOCUMENT PAGE 342)'  SOME OF THOSE STATE STANDARDS
CONFLICTED WITH THE FEDERAL REQUIREMENTS, ID., AT 14 - 15; BUT THOSE
PROVISIONS OF THE WASHINGTON LAW RELATING TO SAFETY AND SEAWORTHINESS
WERE NOT IN CONFLICT WITH THE FEDERAL LAW.  SO THE QUESTION WAS WHETHER
THE ABSENCE OF CONGRESSIONAL ACTION AND THE NEED FOR UNIFORMITY OF
REGULATION BARRED STATE ACTION.  MR. CHIEF JUSTICE HUGHES, WRITING FOR
THE COURT, RULED IN THE NEGATIVE, SAYING: 

"A VESSEL WHICH IS ACTUALLY UNSAFE AND UNSEAWORTHY IN THE PRIMARY
AND COMMONLY UNDERSTOOD SENSE IS NOT WITHIN THE PROTECTION OF THAT
PRINCIPLE.  THE STATE MAY TREAT IT AS IT MAY TREAT A DISEASED ANIMAL OR
UNWHOLESOME FOOD.  IN SUCH A MATTER, THE STATE MAY PROTECT ITS PEOPLE
WITHOUT WAITING FOR FEDERAL ACTION PROVIDING THE STATE ACTION DOES NOT
COME INTO CONFLICT WITH FEDERAL RULES.  IF, HOWEVER, THE STATE GOES
FARTHER AND ATTEMPTS TO IMPOSE PARTICULAR STANDARDS AS TO STRUCTURE,
DESIGN, EQUIPMENT AND OPERATION WHICH IN THE JUDGMENT OF ITS
AUTHORITIES MAY BE DESIRABLE BUT PASS BEYOND WHAT IS PLAINLY ESSENTIAL
TO SAFETY AND SEAWORTHINESS, THE STATE WILL ENCOUNTER THE PRINCIPLE
THAT SUCH REQUIREMENTS, IF IMPOSED AT ALL, MUST BE THROUGH THE ACTION
OF CONGRESS WHICH CAN ESTABLISH A UNIFORM RULE.  WHETHER THE STATE IN A
PARTICULAR MATTER FOES TOO FAR MUST BE LEFT TO BE DETERMINED WHEN THE
PRECISE QUESTION ARISES."  ID., AT 15. 

THAT DECISION WAS RENDERED BEFORE THE ADMIRALTY EXTENSION ACT WAS
PASSED. 

HURON CEMENT CO. V. DETROIT, SUPRA, HOWEVER, AROSE AFTER THAT ACT
BECAME EFFECTIVE.  SHIPS CRUISING NAVIGABLE WATERS AND INSPECTED AND
LICENSED UNDER FEDERAL ACTS WERE CHARGED WITH VIOLATING DETROIT'S SMOKE
ABATEMENT CODE. 

[[HC343'(ORIGINAL DOCUMENT PAGE 343)'  THE COMPANY AND ITS AGENTS
WERE, INDEED, CRIMINALLY CHARGED WITH VIOLATING THAT CODE.  THE COURT
IN SUSTAINING THE STATE PROSECUTION SAID: 

     "THE ORDINANCE WAS ENACTED FOR THE MANIFEST PURPOSE OF

  PROMOTING THE HEALTH AND WELFARE OF THE CITY'S INHABITANTS. 

  LEGISLATION DESIGNED TO FREE FROM POLLUTION THE VERY AIR THAT

  PEOPLE BREATHE CLEARLY FALLS WITHIN THE EXERCISE OF EVEN THE MOST

  TRADITIONAL CONCEPT OF WHAT IS COMPENDIOUSLY KNOWN AS THE POLICE

  POWER.  IN THE EXERCISE OF THAT POWER, THE STATES AND THEIR

  INSTRUMENTALITIES MAY ACT, IN MANY AREAS OF INTERSTATE COMMERCE

  AND MARITIME ACTIVITIES, CONCURRENTLY WITH THE FEDERAL

  GOVERNMENT."  362 U.S., AT 442. 

THE COURT REASONED THAT THERE WAS ROOM FOR LOCAL CONTROL SINCE
FEDERAL INSPECTION WAS "LIMITED TO AFFORDING PROTECTION FROM THE PERILS
OF MARITIME NAVIGATION," WHILE THE DETROIT ORDINANCE WAS AIMED AT "THE
ELIMINATION OF AIR POLLUTION TO PROTECT THE HEALTH AND ENHANCE THE
CLEANLINESS OF THE LOCAL COMMUNITY."  ID., AT 445.  THE COURT, IN
REVIEWING PRIOR DECISIONS, NOTED THAT A FEDERALLY LICENSED VESSEL WAS
NOT EXEMPT (1) "FROM LOCAL PILOTAGE LAWS"; (2) "LOCAL QUARANTINE LAWS";
(3) "LOCAL SAFETY INSPECTIONS"; OR (4) "LOCAL REGULATION OF WHARVES AND
DOCKS."  ID., AT 447.     IT FOLLOWS, A FORTIORI, THAT SEA-TO-SHORE
POLLUTION -- HISTORICALLY WITHIN THE REACH OF THE POLICE POWER OF THE
STATES -- IS NOT SILENTLY TAKEN AWAY FROM THE STATES BY THE ADMIRALTY
EXTENSION ACT, WHICH DOES NOT PURPORT TO SUPPLY THE EXCLUSIVE REMEDY. 

AS DISCUSSED ABOVE, WE CANNOT SAY WITH CERTAINTY AT THIS STAGE THAT
THE FLORIDA ACT CONFLICTS WITH ANY FEDERAL ACT.  WE HAVE ONLY THE
QUESTION WHETHER THE WAIVER OF PRE-EMPTION BY CONGRESS IN ^ 1161(O) (2)
CONCERNING THE IMPOSITION BY A STATE OF "ANY REQUIREMENT OR LIABILITY"
IS VALID. 

[[HC344'(ORIGINAL DOCUMENT PAGE 344)'     IT IS VALID UNLESS THE
RULE OF JENSEN AND KNICKERBOCKER ICE IS TO ENGULF EVERYTHING THAT
CONGRESS CHOSE TO CALL "ADMIRALTY,"  PRE-EMPTING STATE ACTION.  JENSEN
AND KNICKERBOCKER ICE HAVE BEEN CONFIED TO THEIR FACTS, VIZ., TO SUITS
RELATING TO THE RELATIONSHIP OF VESSELS, PLYING THE HIGH SEAS AND OUR
NAVIGABLE WATERS, AND TO THEIR CREWS.  THE FACT THAT A WHOLE SYSTEM OF
LIABILITIES WAS ESTABLISHED ON THE BASIS OF THOSE TWO CASES, LED US
YEARS AGO TO ESTABLISH THE "TWILIGHT ZONE"  WHERE STATE REGULATION WAS
PERMISSIBLE.  SEE DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249, 252 -
253.  WHERE THERE WAS A HEARING BY A FEDERAL AGENCY AND A CONCLUSION BY
THAT AGENCY THAT THE CASE FELL WITHIN THE FEDERAL JURISDICTION, WE MADE
ITS FINDINGS FINAL.  IBID.  WHERE THERE WERE NO SUCH FINDINGS, WE
PRESUMED STATE LAW, IN TERMS APPLICABLE, WAS CONSTITUTIONAL.  ID., AT
257 - 258.  THAT IS THE WAY THE "TWILIGHT ZONE"  HAS BEEN DEFINED. 

JENSEN THUS HAS VITALITY LEFT.  BUT WE DECLINE TO MOVE THE JENSEN
LINE OF CASES SHOREWARD TO OUTST STATE LAW FROM SITUATIONS INVOLVING
SHORESIDE INJURIES BY SHIPS ON NAVIGABLE WATERS.  THE ADMIRALTY
EXTENSION ACT DOES NOT PRE-EMPT STATE LAW IN THOSE SITUATIONS.  SEE
NACIREMA OPERATING CO. V. JOHNSON, 396 U. S. 212. 

THE JUDGMENT BELOW IS

              REVERSED. 

/1/  AT THE HEARING ON PLAINTIFFS-APPELLEES' APPLICATION FOR A
TEMPORARY RESTRAINING ORDER, IT WAS INDICATED THAT NONE OF THE
PLAINTIFFS HAD ATTEMPTED TO COMPLY WITH THE FLORIDA ACT.  SHIPOWNERS
AND OPERATORS HAD THREATENED TO DIVERT THEIR VESSELS FROM FLORIDA
PORTS. 

/1A/  THE WATER QUALITY IMPROVEMENT ACT OF 1970 WAS AMENDED AFTER
THIS CASE WAS DOCKETED BY THE WATER POLLUTION PREVENTION AND CONTROL
ACT OF 1972, 86 STAT. 816, 33 U.S.C.A. ^^ 1251 - 1376.  SINCE THE
SUBSTANTIALLY CHANGED, REFERENCES TO THE 1970 ACT HAVE BEEN RETAINED. 

/2/  H. R. CONF. REP. NO. 91 - 940, P. 42. 

/3/  THOSE REQUIRED TO OBTAIN A LICENSE ARE THOSE WHO OPERATE A
TERMINAL FACILITY.   6(1).  BUT LICENSES TO TERMINAL FACILITES INCLUDE
"VESSELS USED TO TRANSPORT OIL, PETROLEUM PRODUCTS, THEIR BY-PRODUCTS,
AND OTHER POLLUTANTS BETWEEN THE FACILITY AND VESSELS WITHIN STATE
WATERS."  ^ 6(4). 

/4/  SECTION 12 ALSO PROVIDES THAT THE PILOT OR THE MASTER OF ANY
VESSEL OR PERSON IN CHARGE OF ANY LICENSEE'S TERMINAL FACILITY WHO
FAILS "TO GIVE IMMEDIATE NOTIFICATION OF A DISCHARGE TO THE PORT
MANAGER AND THE NEAREST COAST GUARD STATION" MAY BE IMPRISONED FOR NOT
MORE THAN TWO YEARS OR FINED NOT MORE THAN $10,000. 

/5/  AS TO THE DAMAGES OF OIL SPILLS TO ECOLOGICAL FACTORS IT WAS
RECENTLY SAID IN 10 HARV. INT'L L. J. 316, 321 - 323 (1969): 

"SOME DAMAGE TO MARINE LIFE IS OBVIOUS IN THE WAKE OF A DISASTER
SUCH AS THE ONE WHICH BEFELL THE 'TORREY CANYON."  SURFACE FEEDING
FISHES DIE WHEN THEY SWIM INTO FLOATING OIL, AND EVEN SLIGHT, NON-FATAL
CONTACT MAY RENDER THEIR FLESH INEDIBLE.  SHELLFISH, AMONG OTHERS, ARE
ALSO VOLNERABLE TO OIL POLLUTION.  WHEN THE TANKER 'P. W. THRITLE'
GROUNDED OFF NEWPORT, RHODE ISLAND, 31,000 GALLONS OF HEAVY BLACK OIL
WERE DISCHARGED FROM HER TANKS IN AN EFFORT TO REFLOAT THE SHIP; THE
RESULT OF THIS WAS THE VIRTUAL DESTRUCTION OF THE ENTIRE OYSTER FISHERY
OF NARRAGANSETT BAY.  THE MOST SERIOUS CONSEQUENCES OF OIL POLLUTION,
HOWEVER, MAY NOT BE THOSE WHICH ARE IMMEDIATELY OBVIOUS. 

"ACCORDING TO DR. ERWIN S. IVERSEN, A MARINE BIOLOGIST: 

"'THE GREATEST PROBLEM MAY BE THE TOXIC EFFECTS ON THE INTERTIDAL
ANIMALS THAT SERVE AS FOOD FOR THE OTHER MORE IMPORTANT FISHES . . . I
DON'T THINK THE EFFECT IS MERELY THAT OF KILLING LARGE POPULATIONS OF
COMMERCIAL FISHES.  WORSE THAN THAT, IT INTERRUPTS THE SO-CALLED FOOD
CHAIN.' 

"THERE HAVE BEEN FEW SPECIFIC STUDIES OF THE EFFECT THAT OIL
ACCUMULATION HAS ON THIS FOOD CHAIN.  ONE STUDY, CONDUCTED BY DR. PAUL
GALTSOFF OF THE UNITED STATES FISH AND WILDLIFE SERVICE, FOUND THAT THE
DIATOMS ON WHICH OYSTERS FEED WILL NOT GROW WHERE THERE IS EVEN A
SLIGHT TRACE OF OIL ON THE WATER.  THE EFFECT OF OIL ON SUCH
MICROSCOPIC MARINE PLANT LIFE MAY BE OF GREAT IMPORTANCE, BECAUSE IT IS
ESTIMATED THAT IT TAKES AS MUCH AS TEN POUNDS OF PLANT MATTER TO
PRODUCE ONE POUND OF FISH. 

"LARGE SCALE OIL POLLUTION, SUCH AS THAT WHICH OCCURRED WHEN THE
'TORREY CANYON' RAN INTO THE SEVEN STONES REEF, RESULTS IN HUGH LOSSES
OF WATER BIRDS.  ASIDE FROM HUMANE AND AESTHETIC CONSIDERATIONS, THESE
BIRDS PLAY A VITAL ROLE IN THE ECOLOGY OF THE SEASHORE, A ROLE WHICH
PROFOUNDLY AFFECTS THE FISHING INDUSTRY.  THE UNCERTAINTY AS TO THE
ACTUAL EXTENT OF THE DAMAGE DONE TO MARINE LIFE BY OIL POLLUTION MAKES
IT DIFFICULT TO ESTIMATE THE ECONOMIC EFFECT OF SUCH DAMAGE, BUT THE
IMPORTANCE OF THE FISHING INDUSTRY WITHIN THE WORLD'S ECONOMY IS NOT IN
DOUBT AND IS STEADILY INCREASING.  BETWEEN 1958 AND 1963, FOR EXAMPLE,
THERE WAS A 42% RISE IN THE WORLD CATCH.  BECAUSE OF THE INCREASING
IMPORTANCE OF SEAFOOD PROTEIN, FUTURE DAMAGE TO MARINE LIFE WILL HAVE
PROGRESSIVELY GREATER ECONOMIC CONSEQUENCES. 

"PERHAPS THE MOST NOTICEABLE DAMAGE CAUSED BY OIL POLLUTION IS THE
FOULING OF RECREATIONAL BEACHES AND SHOREFRONT PROPERTY.  ONE-HALF
MILLION TONS OF OIL ARE WASHED ASHORE EACH YEAR, RENDERING BEACHES
UNFIT FOR SWIMMING AND FILLING THE AIR WITH UNPLEASANT ODORS.  BESIDES
THE ANNOYANCE THAT THIS CAUSES A VACATIONING PUBLIC SEEKING RELIEF FROM
URBAN LIFE, ECONOMIC LOSS MAY BE CONSIDERABLE.  IT IS ESTIMATED, FOR
EXAMPLE, THAT A SERIOUS OIL SPILL OFF LONG ISLAND DURING THE SUMMER
MONTHS WOULD COST RESORT AND BEACH OPERATORS THIRTY MILLION DOLLARS. 
OIL SPILLS ALSO CREATE NAVIGATIONAL AND FIRE HAZARDS IN HARBORS, PORTS
AND MARINAS."  (FOOTNOTES OMITTED.) 

/6/  BRIEF FOR APPELLANTS 25. 

/7/  10 HARV. INT'L L. J., AT 317 - 318 (FOOTNOTES OMITTED). 

/8/  POLLUTING INCIDENTS IN AND AROUND U.S. WATERS, CALENDAR YEAR
1971, ENVIRONMENTAL PROTECTION, COMMANDANT U.S. COAST GUARD. 

/9/  A STATEMENT WE RECENTLY QUOTED WITH APPROVAL IN EXECUTIVE JET
AVIATION, INC. V. CITY OF CLEVELAND, 409 U.S. 249, 253, AND VICTORY
CARRIERS, INC. V. LAW, 404 U.S. 202, 205. 

/10/  IT PROVIDES IN RELEVANT PART:  "THE ADMIRALTY AND MARITIME
JURISDICTION OF THE UNITED STATES SHALL EXTEND TO AND INCLUDE ALL CASES
OF DAMAGE OR INJURY, TO PERSON OR PROPERTY, CAUSED BY A VESSEL ON
NAVIGABLE WATER, NOTWITHSTANDING THAT SUCH DAMAGE OR INJURY BE DONE OR
CONSUMMATED ON LAND." 

/11/  THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 33
U.S.C. 901 ET SEQ., RECENTLY WAS AMENDED TO COVER EMPLOYEES WORKING ON
SHORESIDE AREAS CUSTOMARILY USED BY AN EMPLOYER IN LOADING, UNLOADING,
REPAIRING, OR BUILDING A VESSEL.  LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT AMENDMENTS OF 1972, PUB. L. 92 - 576, ^ 2, 86 STAT.
1251. 

/12/  SEE VICTORY CARRIER, 404 U.S., AT 209 N. 9. 

/13/  SEE H.R. REP. NO. 1523, 80TH CONG., 2D SESS.; S. REP. NO.
1593, 80TH CONG., 2D SESS. 

ROBERT L. SHEVIN, ATTORNEY GENERAL OF FLORIDA, AND DANIEL S. DEARING
ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANTS. 

LEROY COLLINS AND NICHOLAS J. HEALY ARGUED THE CAUSE FOR APPELLEES. 
WITH MR. COLLINS ON THE BRIEF FOR APPELLEES AMERICAN WATERWAYS
OPERATORS, INC., ET AL. WERE JOSEPH C. JACOBS, JOHN B. CHANDLER, JR.,
AND STEWART D. ALLEN.  WITH MR. HEALY ON THE BRIEF FOR APPELLEES
AMERICAN INSTITUTE OF MERCHANT SHIPPING ET AL. WERE GORDON W. PAULSEN,
DEWEY R. VILLAREAL, JR., AND EMIL A. KRATOVIL, JR. JAMES F. MOSELEY
FILED A BRIEF FOR APPELLEES SUWANNEE STEAMSHIP CO. ET AL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY EVELL J.
YOUNGER, ATTORNEY GENERAL, JAY L. SHAVELSON, ASSISTANT ATTORNEY
GENERAL, AND CARL BORONKAY AND JEFFREY C. FREEDMAN, DEPUTY ATTORNEYS
GENERAL, FOR THE STATE OF CALIFORNIA; BY ARTHUR K. BOLTON, ATTORNEY
GENERAL, HAROLD N. HILL, JR., EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND
ALFRED L. EVANS, JR., JAMES B. TALLEY, AND COURTNEY WILDER STANTON,
ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF GEORGIA; BY GEORGE PAI,
ATTORNEY GENERAL, AND NOBUKI KAMIDA AND ALAN M. GODA, DEPUTY ATTORNEYS
GENERAL, FOR THE STATE OF HAWAII; BY FRANCIS B BURCH, ATTORNEY GENERAL,
HENRY R. LORD, DEPUTY ATTORNEY GENERAL, AND WARREN K. RICH, ASSISTANT
ATTORNEY GENERAL, FOR THE STATE OF MARYLAND; BY ROBERT H. QUINN,
ATTORNEY GENERAL, AND WALTER H. MAYO III AND ROGER TIPPY, ASSISTANT
ATTORNEY GENERAL, FOR THE COMMONWEALTH OF MASSACHUSETTS; BY FRANK J.
KELLEY, ATTORNEY GENERAL, ROBERT A. DERENGOSKI, SOLICITOR GENERAL, AND
HUGH B. ANDERSON AND CHARLES S. ALPERT, ASSISTANT ATTORNEYS GENERAL,
FOR THE STATE OF MICHIGAN; BY LOUIS J. LEFKOWITZ, ATTORNEY GENERAL,
SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND PHILIP
WEINBERG AND JAMES P. CORCORAN, ASSISTANT ATTORNEYS GENERAL, FOR THE
STATE OF NEW YORK, JOINED BY ROBERT K. KILLIAN, ATTORNEY GENERAL OF
CONNECTICUT, AND W. LAIRD STABLER, JR., ATTORNEY GENERAL OF DELAWARE;
BY ROBERT MORGAN, ATTORNEY GENERAL, AND CHRISTINE Y. DENSON, ASSISTANT
ATTORNEY GENERAL, FOR THE STATE OF NORTH CAROLINA; BY CRAWFORD C.
MARTIN, ATTORNEY GENERAL, NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL,
ALFRED WALKER, EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND HOUGHTON
BROWNLEE, JR., AND JOHN MILTON RICHARDSON, ASSISTANT ATTORNEYS GENERAL,
FOR THE STATE OF TEXAS; BY ANDREW P. MILLER, ATTORNEY GENERAL, AND C.
TABOR CRONK, ASSISTANT ATTORNEY GENERAL, FOR THE COMMONWEALTH OF
VIRGINIA; AND BY SLADE GORTON, ATTORNEY GENERAL, CHARLES B. ROE, JR.,
SENIOR ASSISTANT ATTORNEY GENERAL, AND CHARLES W. LEAN, ASSISTANT
ATTORNEY GENERAL, FOR THE STATE OF WASHINGTON. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY ROBERT G.
MCCREARY, JAMES J. HIGGINS, WARREN A. JACKMAN, SAM L. LEVINSON, DAVID
R. OWNE, JOHN CO. SHEPHERD, AND BENJAMIN W. YANCEY FOR THE AMERICAN BAR
ASSOCIATION, AND BY JOHN M. MCHOSE FOR THE MARITIME LAW ASSOCIATION OF
THE UNITED STATES. 

SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEYS GENERAL FRIZZELL
AND WOOD FILED A BRIEF FOR THE UNITED STATES AS AMICUS CURIAE. 
..END :


















HENSLEY V. MUNICIPAL COURT, SAN JOSE-MILPITAS JUDICIAL DISTRICT,
SANTA CLARA COUNTY, 411 U.S. 345  



       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT 

     NO. 71 - 1428.  ARGUED JANUARY 15, 1973 -- DECIDED APRIL 18,

  1973; 453 F.2D 1252, REVERSED AND REMANDED. 


    RESTRAINTS PLACED ON PETITONER WHO WAS RELEASED ON HIS OWN

  RECOGNIZANCE CONSTITUTE "CUSTODY" WITHIN THE MEANING OF THE

  FEDERAL HABEAS CORPUS STATUTE, 28 U.S.C. ^^ 2241(C) (3),

  2254(A).  PP. 348 - 353. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED AN
OPINION CONCURRING IN THE RESULT, POST, P. 353.  REHNQUIST, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C. J., AND POWELL, J., JOINED,
POST, P. 354. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US TO DETERMINE WHETHER A PERSON RELEASED ON HIS
OWN RECOGNIZANCE IS "IN CUSTODY" WITHIN THE MEANING OF THE FEDERAL
HABEAS CORPUS STATUTE, 28 U.S.C. ^^ 2441(C) (3), 2254(A).  SEE PEYTON
V. ROWE, 391 U.S. 54 (1968); CARAFAS V. LAVALLE, 391 U.S. 234 (1968);
JONES V. CUNNINGHAM, 371 U.S. 136 (1963).  PETITIONER INITIATED THIS
ACTION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, CHALLENGING A STATE COURT CONVICTION ON FIRST AND
FOURTEENTH AMENDMENT GROUNDS. 

[[HC346'(ORIGINAL DOCUMENT PAGE 346)'  THE COURT DENIED RELIEF,
HOLDING THAT SINCE THE PETITIONER WAS ENLARGED ON HIS OWN RECOGNIZANCE
PENDING EXECUTION OF SENTENCE, HE WAS NOT YET "IN CUSTODY" FOR PURPOSES
OF THE HABEAS CORPUS STATUTE.  THE COURT OF APPEALS FOR THE NINTH
CIRCUIT AGREED THAT RELEASE ON ONE'S OWN RECOGNIZANCE IS NOT SUFFICIENT
CUSTODY TO CONFER JURISDICTION ON THE DISTRICT COURT, AND AFFIRMED THE
JUDGMENT.  453 F.2D 1252 (1972).  /1/  WE GRANTED CERTIORARI, 409 U.S.
840 (1972), AND WE REVERSE. 

CONVICTED OF A MISDEMEANOR IN CALIFORNIA MUNICIPAL COURT FOR
VIOLATION OF ^ 29007 OF THE CALIFORNIA EDUCATION CODE, /2/  PETITIONER
WAS SENTENCED TO SERVE ONE YEAR IN JAIL AND PAY A FINE OF $625.  HE
APPEALED HIS CONVICTION UNSUCCESSFULLY TO THE APPELLATE DEPARTMENT OF
THE SUPERIOR COURT, AND HIS EFFORTS TO HAVE THE CONVICTION SET ASIDE ON
STATE COURT COLLATERAL ATTACK HAVE PROVED EQUALLY UNAVAILING.  IT
APPEARS THAT PETITIONER EXHAUSTED ALL AVAILABLE STATE COURT REMEDIES
PRIOR TO FILING THIS PETITION FOR FEDERAL HABEAS CORPUS.  SEE 28 U.S.C.
^ 2254(B).  /3/ 

AT ALL TIMES SINCE HIS CONVICTION PETITIONER HAS BEEN ENLARGED ON
HIS OWN RECOGNIZANCE. 

[[HC347'(ORIGINAL DOCUMENT PAGE 347)'  WHILE PURSUING HIS STATE
COURT REMEDIES HE REMAINED AT LARGE UNDER AN ORDER OF THE STATE TRIAL
COURT STAYING EXECUTION OF HIS SENTENCE.  AND THE STATE TRIAL COURT
EXTENDED ITS STAY, EVEN AFTER THE SUPREME COURT OF CALIFORNIA DECLINED
TO HEAR HIS APPLICATION FOR POSTCONVICTION RELIEF, APPARENTLY TO PERMIT
PETITIONER TO REMAIN AT LARGE WHILE SEEKING HABEAS CORPUS IN THE UNITED
STATES DISTRICT COURT.  PENDING APPEAL FROM THE DISTRICT COURT'S DENIAL
OF RELIEF, AN APPLICATION FOR EXTENSION OF THE STATE COURT STAY WAS
GRANTED BY MR. JUSTICE BLACK, AS ACTING CIRCUIT JUSTICE, ON AUGUST 12,
1970, AND EXTENDED BY MR. JUSTICE DOUGLAS, AS CIRCUIT JUSTICE, ON
AUGUST 20, 1970, AND AGAIN ON SEPTEMBER 9, 1970.  /4/  THE COURT OF
APPEALS AFFIRMED THE DENIAL OF HABEAS CORPUS, BUT GRANTED A 30-DAY STAY
OF ITS MANDATE PENDING APPLICATION FOR CERTIORARI.  THAT STAY WAS
EXTENDED BY MR. JUSTICE DOUGLAS, AS CIRCUIT JUSTICE, ON MARCH 20, 1972,
AND IT IS PURSUANT TO HIS ORDER THAT PETITIONER REMAINS AT LARGE AT THE
PRESENT TIME. 

THE CALIFORNIA PENAL CODE PROVIDES THAT ANY COURT THAT MAY RELEASE A
DEFENDANT UPON HIS GIVING BAIL MAY RELEASE HIM ON HIS OWN RECOGNIZANCE,
PROVIDED HE AGREES IN WRITING THAT: 

[[HC348'(ORIGINAL DOCUMENT PAGE 348)' 

     "(A) HE WILL APPEAR AT ALL TIME AND PLACES AS ORDERED BY THE

  COURT OR MAGISTRATE RELEASING HIM AND AS ORDERED BY ANY COURT IN

  WHICH, OR ANY MAGISTRATE BEFORE WHOM, THE CHARGE IS SUBSEQUENTLY

  PENDING. 

     "(B) IF HE FAILS TO SO APPEAR AND IS APPREHENDED OUTSIDE OF
THE

  STATE OF CALIFORNIA, HE WAIVES EXTRADITION. 

     "(C) ANY COURT OF MAGISTRATE OF COMPETENT JURISDICTION MAY

  REVOKE THE ORDER OF RELEASE AND EITHER RETURN HIM TO CUSTODY OR

  REQUIRE THAT HE GIVE BAIL OR OTHER ASSURANCE OF HIS APPEARANCE .

  . ."  CAL. PENAL CODE ^ 1318.4. 

A DEFENDANT IS SUBJECT TO RE-ARREST IF HE FAILS TO APPEAR AS AGREED,
ID., ^ 1318.8(A), AND A WILLFUL FAILURE TO APPEAR IS ITSELF A CRIMINAL
OFFENSE.  ID., ^ 1319.6.  WE ASSUME THAT THESE STATUTORY CONDITIONS
HAVE BEEN IMPOSED ON PETITIONER AT ALL TIMES SINCE THE STATE TRIAL
COURT STAYED EXECUTION OF HIS SENTENCE. 

THE QUESTION PRESENTED FOR OUR DECISION IS A NARROW ONE:  NAMELY,
WHETHER THE CONDITIONS IMPOSED ON PETITIONER AS THE PRICE OF HIS
RELEASE CONSTITUTE "CUSTODY" AS THAT TERM IS USED IN THE HABEAS CORPUS
STATUTE.  RESPONDENT CONTENDS THAT THE CONDITIONS IMPOSED ON PETITIONER
ARE SIGNIFICANTLY LESS RESTRICTIVE THAN THOSE IMPOSED ON THE PETITIONER
IN JONES V. CUNNINGHAM, 371 U.S. 236 (1963), WHERE WE HELD THAT A
PERSON RELEASED ON PAROLE IS "IN CUSTODY" FOR PURPOSES OF THE DISTRICT
COURTS'  HABEAS CORPUS JURISDICTION.  IT IS TRUE, OF COURSE, THAT THE
PAROLEE IS GENERALLY SUBJECT TO GREATER RESTRICTIONS ON HIS LIBERTY OF
MOVEMENT THAN A PERSON RELEASED ON BAIL OR HIS OWN RECOGNIZANCE.  AND
SOME LOWER COURTS HAVE REASONED THAT THIS DIFFERENCE PRECLUDES AN
EXTENSTION OF THE WRIT IN CASES SUCH AS THE ONE BEFORE US.  /5/ 

[[HC349'(ORIGINAL DOCUMENT PAGE 349)'  ON THE OTHER HAND, A
SUBSTANTIAL NUMBER OF COURTS, PERHAPS A MAJORITY, HAVE CONCLUDED THAT A
PERSON RELEASED ON BAIL OR ON HIS OWN RECOGNIZANCE MAY BE "IN CUSTODY"
WITHIN THE MEANING OF THE STATUTE.  /6/  IN VIEW OF THE ANALYSIS, WHICH
LED TO A FINDING OF CUSTODY IN JONES V. CUNNINGHAM, SUPRA, WE CONCLUDE
THAT THIS LATTER LINE OF CASES REFLECTS THE SOUNDER VIEW. 

WHILE THE "RHETORIC CELEBRATING HABEAS CORPUS HAS CHANGED LITTLE
OVER THE CENTURIES,"  /7/  IT IS NEVERTHELESS TRUE THAT THE FUNCTIONS
OF THE WRIT HAVE UNDERGONE DRAMATIC CHANGE.  OUR RECENT DECISIONS HAVE
REASONED FROM THE PERMISE THAT HABEAS CORPUS IS NOT "A STATIC, NARROW,
FORMALISTIC REMEDY," JONES V. CUNNINGHAM, SUPRA, AT 243, BUT ONE WHICH
MUST RETAIN THE "ABILITY TO CUT THROUGH BARRIERS OF FORM AND PROCEDURAL
MAZES." 

[[HC350'(ORIGINAL DOCUMENT PAGE 350)'  HARRIS V. NELSON, 394 U.S.
286, 291 (1969).  SEE FRANK V. MANGUM, 237 U.S. 309, 346 (1915)
(HOLMES, J., DISSENTING).  "THE VERY NATURE OF THE WRIT DEMANDS THAT IT
BE ADMINISTERED WITH THE INITIATIVE AND FLEXIBILITY ESSENTIAL TO INSURE
THAT MISCARRIAGES OF JUSTICE WITHIN IT REACH ARE SURFACED AND
CORRECTED."  HARRIS V. NELSON, SUPRA, AT 291. 

THUS, WE HAVE CONSISTENTLY REJECTED INTERPRETATIONS OF THE HABEAS
CORPUS STATUTE THAT WOULD SUFFOCATE THE WRIT IN STIFLING FORMALISMS OR
HOBBLE ITS EFFECTIVENESS WITH THE MANACLES OF ARCANE AND SCHOLASTIC
PROCEDURAL REQUIREMENTS.  THE DEMAND FOR SPEED, FLEXIBILITY, AND
SIMPLICITY IS CLEARLY EVIDENT IN OUR DECISIONS CONCERNING THE
EXHAUSTION DOCTRINE, FAY V. NOIA, 372 U.S. 391 (1963); BROWN V. ALLEN,
344 U.S. 443 (1953); THE CRITERIA FOR RELITIGATION OF FACTUAL
QUESTIONS, TOWSEND V. SAIN, 372 U.S. 293 (1963); THE PREMATURITY
DOCTRINE, PAYTON V. ROWE, 391 U.S. 54 (1968); THE CHOICE OF FORUM,
BRADEN V. 30TH JUDICIAL CIRCUIT COURT OF KY., 410 U.S. 484 (1973);
STRAIT V. LAIRD, 406 U.S. 341 (1972); AND THE PROCEDURAL REQUIREMENTS
OF A HABEAS CORPUS HEARING, HARRIS V. NELSON, SUPRA.  THAT SAME THEME
HAS INDELIBLY MARKED OUR CONSTRUCTION OF THE STATUTE'S CUSTODY
REQUIREMENT.  SEE STRAIT V. LAIRD, SUPRA; PEYTON V. ROWE, SUPRA;
CARAFAS V. LAVALLEE, 391 U.S. 234 (1968); WALKER V. WAINWRIGHT, 390
U.S. 335 (1968); JONES V. CUNNINGHAM, SUPRA.  /8/ 

THE CUSTODY REQUIREMENT OF THE HABEAS CORPUS STATUTE IS DESIGNED TO
PRESERVE THE WRIT OF HABEAS CORPUS AS A REMEDY FOR SEVERE RESTRAINTS ON
INDIVIDUAL LIBERTY. 

[[HC351'(ORIGINAL DOCUMENT PAGE 351)'  SINCE HABEAS CORPUS IS AN
EXTRAORDINARY REMEDY WHOSE OPERATION IS TO A LARGE EXTENT UNINHIBITED
BY TRADITIONAL RULES OF FINALITY AND FEDERALISM, ITS USE HAS BEEN
LIMITED TO CASES OF SPECIAL URGENCY, LEAVING MORE CONVENTIONAL REMEDIES
FOR CASES IN WHICH THE RESTRAINTS ON LIBERTY ARE NEITHER SEVERE NOR
IMMEDIATE.  APPLYING THAT PRINCIPLE, WE CAN ONLY CONCLUDE THAT
PETITIONER IS IN CUSTODY FOR PURPOSES OF THE HABEAS CORPUS STATUTE. 
FIRST, HE IS SUBJECT TO RESTRAINTS "NOT SHARED BY THE PUBLIC
GENERALLY," JONES V. CUNNINGHAM, SUPRA, AT 240:  THAT IS, THE
OBLIGATION TO APPEAR "AT ALL TIMES AND PLACES AS ORDERED" BY "(ANY
COURT OR MAGISTRATE OF COMPETENT JURISDICTION."  CAL. PENAL CODE ^^
1318.4(A), 1318.4(C).  HE CANNOT COME AND GO AS HE PLEASES.  HIS
FREEDOM OF MOVEMENT RESTS IN THE HANDS OF STATE JUDICIAL OFFICERS, WHO
MAY DEMAND HIS PRESENCE AT ANY TIME AND WITHOUT A MOMENT'S NOTICE. 
DISOBEDIENCE IS ITSELF A CRIMINAL OFFENSE.  THE RESTRAINT ON HIS
LIBERTY IS SURELY NO LESS SEVERE THAN THE CONDITIONS IMPOSED ON THE
UNATTACHED RESERVE OFFICER WHOM WE HELD TO BE "IN CUSTODY" IN STRAIT V.
LAIRD, SUPRA.  /9/ 

SECOND, PETITIONER REMAINS AT LARGE ONLY BY THE GRACE OF A STAY
ENTERED FIRST BY THE STATE TRIAL COURT AND THEN EXTENDED BY TWO
JUSTICES OF THIS COURT.  THE STATE HAS EMPHATICALLY INDICATED ITS
DETERMINATION TO PUT HIM BEHIND BARS, AND THE STATE HAS TAKEN EVERY
POSSIBLE STEP TO SECURE THAT RESULT.  HIS INCARCERATION IS NOT, IN
OTHER WORDS, A SPECULATIVE POSSIBILITY THAT DEPENDS ON A NUMBER OF
CONTINGENCIES OVER WHICH HE HAS NO CONTROL. 

[[HC352'(ORIGINAL DOCUMENT PAGE 352)'  THIS IS NOT A CASE WHERE THE
UNFOLDING OF EVENTS MAY RENDER THE ENTIRE CONTROVERSY ACADEMIC.  THE
PETITIONER HAS BEEN FORCED TO FEND OFF THE STATE AUTHORITIES BY MEANS
OF A STAY, AND THOSE AUTHORITIES RETAIN THE DETERMINATION AND THE WER
TO SEIZE HIM AS SOON AS THE OBSTACLE OF THE STAY IS REMOVED.  THE NEED
TO KEEP THE STAY IN FORCE IS ITSELF AN UNUSUAL AND SUBSTANTIAL
IMPAIRMENT OF HIS LIBERTY. 

MOREOVER, OUR CONCLUSION THAT THE PETITIONER IS PRESENTLY IN CUSTODY
DOES NOT INTERFERE WITH ANY SIGNIFICANT INTEREST OF THE STATE.  INDEED,
EVEN IF WE WERE TO ACCEPT RESPONDENT'S ARGUMENT THAT PETITIONER IS NOT
IN CUSTODY, THAT RESULT WOULD DO NO MORE THAN POSTPONE THIS HABEAS
CORPUS ACTION UNTIL PETITIONER HAD BEGUN SERVICE OF HIS SENTENCE.  /10/
IT WOULD STILL REMAIN OPEN TO THE DISTRICT COURT TO ORDER PETITIONER'S
RELEASE PENDING CONSIDERATION OF HIS HABEAS CORPUS CLAIM.  IN RE
SHUTTLESWORTH, 369 U.S. 35 (1962).  EVEN IF PETITIONER REMAINED IN JAIL
ONLY LONG ENOUGH TO HAVE HIS PETITION FILED IN THE DISTRICT COURT, HIS
RELEASE BY ORDER OF THE DISTRICT COURT WOULD NOT JEOPARDIZE HIS
"CUSTODY" FOR PURPOSES OF A HABEAS CORPUS ACTION.  CARAFAS V. LAVALLEE,
SUPRA. /11/  PLAINLY, WE WOULD BADLY SERVE THE PURPOSES AND THE HISTORY
OF THE WRIT TO HOLD THAT UNDER THESE CIRCUMSTANCES THE PETITIONER'S
FAILURE TO SPEND EVEN 10 MINUTES IN JAIL IS ENOUGH TO DEPRIVE THE
DISTRICT COURT OF POWER TO HEAR HIS CONSTITUTIONAL CLAIM. 

[[HC353'(ORIGINAL DOCUMENT PAGE 353)' 

FINALLY, WE EMPHASIZE THAT OUR DECISION DOES NOT OPEN THE DOORS OF
THE DISTRICT COURTS TO THE HABEAS CORPUS PETITIONS OF ALL PERSONS
RELEASED ON BAIL OR ON THEIR OWN RECOGNIZANCE.  WE ARE CONCERNED HERE
WITH A PETITIONER WHO HAS BEEN CONVICTED IN STATE COURT AND WHO HAS
APPARENTLY EXHAUSTED ALL AVAILABLE STATE COURT OPPORTUNITIES TO HAVE
THAT CONVICTION SET ASIDE.  WHERE A STATE DEFENDANT IS RELEASED ON BAIL
OR ON HIS OWN RECOGNIZANCE PENDING TRIAL OR PENDING APPEAL, HE MUST
STILL CONTEND WITH THE REQUIREMENTS OF THE EXHAUSTION DOCTRINE IF HE
SEEKS HABEAS CORPUS RELIEF IN THE FEDERAL COURTS.  NOTHING IN TODAY'S
OPINION ALTERS THE APPLICATION OF THAT DOCTRINE TO SUCH A DEFENDANT. 

SINCE THE COURT OF APPEALS ERRONEOUSLY CONCLUDED THAT PETITIONER WAS
NOT "IN CUSTODY" AT THE TIME HIS PETITION WAS FILED, ITS JUDGMENT IS
REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT TO CONSIDER HIS
PETITION FOR A WRIT OF HABEAS CORPUS. 

   REVERSED AND REMANDED. 

/1/  THE COURT OF APPEALS CONCLUDED THAT THE QUESTION WAS CONTROLLED
BY A PRIOR DECISION OF THE SAME COURT, MATYSEK V. UNITED STATES, 339
F.2D 389 (CA9 1964). 

/2/  PETITIONER WAS CONVICTED OF AWARDING DOCTOR OF DIVINITY DEGREES
WITHOUT OBTAINING THE NECESSARY ACCREDITATION.  HE DEFENDED THE CHARGE
ON THE GROUNDS THAT HE IS THE CHIEF PRESIDING OFFICER OF A BONA FIDE
CHURCH, THAT HIS CHURCH HAS AWARDED HONORARY DOCTOR OF DIVINITY
CERTIFICATES TO PERSONS WHO HAVE COMPLETED A COURSE OF INSTRUCTION IN
THE CHURCH'S PRINCIPLES, AND THAT STATE INTERFERENCE WITH THIS PRACTICE
IS AN UNCONSTITUTIONAL RESTRAINT ON THE FREE EXERCISE OF HIS RELIGIOUS
BELIEFS. 

/3/  THERE IS A SUBSTANTIAL QUESTION WHETHER PETITIONER HAS
FORFEITED THE RIGHT TO RAISE HIS FIRST AND FOURTEENTH AMENDMENT
CHALLENGE TO THE STATE COURT CONVICTION BY DELIBERATELY BYPASSING AN
OPPORTUNITY TO RAISE THE CLAIM IN THE STATE COURTS.  SEE FAY V. NOIA,
372 U.S. 391 (1963).  RESPONDENT MAINTAINS THAT PETITIONER DELIBERATELY
ABSENTED HIMSELF FROM TRIAL FOLLOWING THE CLOSE OF THE PROSECUTION'S
CASE, WITH FULL KNOWLEDGE THAT THE TRIAL WOULD CONTINUE IN HIS
ABSENCE.  HE THEREBY RELINQUISHED, RESPONDENT CONTENDS, THE RIGHT TO
DEFEND HIMSELF AND PRESENT EVIDENCE ON HIS BEHALF.  PETITIONER ARGUES
IN RESPONSE THAT TRIAL COUNSEL FAILED TO ADVISE HIM OF THE REOPENING OF
TRIAL AND FAILED TO WARN HIM THAT ABSENCE FROM TRIAL WOULD LEAD TO
CONVICTION.  ACCORDINGLY, HE ASSERTS THAT HE SHOULD NOT BE HELD TO HAVE
KNOWINGLY AND INTELLIGENTLY BYPASSED AN AVAILABLE STATE PROCEDURE.  THE
RECORD ON THIS POINT IS MORE THAN A LITTLE OBSCURE, AND WE EXPRESS NO
OPINION ON THE QUESTION BEYOND NOTING THAT THE ISSUE WAS NOT
CONSIDERED, MUCH LESS RESOLVED, BY EITHER OF THE COURTS BELOW, AND IT
IS NOT IN ANY SENSE PRESENTED FOR OUR DECISION.     /4/  IN HIS MOTION
FOR STAY, FILED IN THIS COURT ON AUGUST 11, 1970, AND ADDRESSED TO THE
CIRCUIT JUSTICE OF THE NINTH CIRCUIT, PETITIONER EXPLAINED THAT THE
"STAY OF EXECUTION GRANTED BY THE TRIAL COURT IS SCHEDULED TO EXPIRE ON
AUGUST 12, 1970, AT WHICH TIME PETITIONER HAS BEEN ORDERED TO SURRENDER
HIMSELF TO THE SHERIFF OF SANTA CLARA COUNTY FOR IMMEDIATE
INCARCERATION."  MOTION FOR STAY 2. 

/5/  SEE, E. G., UNITED STATES EX REL. MEYER V. WEIL, 458 F.2D 1068
(CA7 1972); ALLEN V. UNITED STATES, 349 F.2D 362 (CA1 1965);
APPLICATION OF JACKSON, 338 F. SUPP. 1225 (WD TENN. 1971); UNITED
STATES EX REL. GRANELLO V. KRUEGER, 306 F. SUPP. 1046 (EDNY 1969); MOSS
V. MARYLAND, 272 F. SUPP. 371 (MD 1967). 

/6/  SEE, E. G., CAPLER V. CITY OF GREENVILLE, 422 F.2D 299, 301
(CA5 1970); MARDEN V. PURDY, 409 F.2D 784, 785 (CA5 1969); BECK V.
WINTERS, 407 F.2D 125, 126 - 127 (CA8 1969); BURRIS V. RYAN, 397 F.2D
553, 555 (CA7 1968); UNITED STATES EX REL. SMITH V. DEBELLA, 314 F.
SUPP. 446 (CONN. 1970); OULETTA V. SARVER, 307 F. SUPP. 1099, 1101 N. 1
(ED ARK. 1970), AFF'D, 428 F.2D 804 (CA8 1970); CANTILLON V. SUPERIOR
COURT, 305 F. SUPP. 304, 306 - 307 (CD CAL. 1969); MATZNER V.
DAVENPORT, 288 F. SUPP. 636, 638 N. 1 (NJ 1968), AFF'D, 410 F.2D 1376
(CA3 1969); NASH V. PURDY, 283 F. SUPP. 837, 838 - 839 (SD FLA. 1968);
DUNCOMBE V. NEW YORK, 267 F. SUPP. 103, 109 N. 9 (SDNY 1967); FOSTER V.
GILBERT, 264 F. SUPP. 209, 211 - 212 (SD FLA. 1967).  IN ADDITION, THE
SUPREME COURT OF CALIFORNIA HAS CONCLUDED THAT RELEASE ON ONE'S OWN
RECOGNIZANCE UNDER THE LAWS OF THAT STATE IMPOSES "SUFFICIENT
CONSTRUCTIVE CUSTODY"  TO PERMIT AN APPLICATION FOR WRIT OF HABEAS
CORPUS.  IN RE SMILEY, 66 CAL. 2D 606, 613, 427 P.2D 179, 183 (1967). 

/7/  NOTE, DEVELOPMENTS IN THE LAW -- FEDERAL HABEAS CORPUSE, 83
HARV. L. REV. 1038, 1040 (1970). 

/8/  INSOFAR AS FORMER DECISIONS, STALLINGS V. SPLAIN, 253 U.S. 339
(1920); JOHNSON V. HOY, 227 U.S. 245 (1913); BAKER V. GRICE, 169 U.S.
284 (1898); WALES V. WHITNEY, 114 U.S. 564 (1885), MAY INDICATE A
NARROWER READING OF THE CUSTODY REQUIREMENT, THEY MAY NO LONGER BE
DEEMED CONTROLLING.  IN NONE OF THE DECISIONS ON WHICH WE TODAY RELY,
STRAIT V. LAIRD, SUPRA; PEYTON V. ROWE, SURA; CARAFAS V. LAVALLEE,
SUPRA; JONES V. CUNNINGHAM, SUPRA, ARE THESE EARLIER CASES EVEN CITED
IN THE OPINIONS OF THE COURT. 

/9/  SIMILARLY, IN BRADEN V. 30TH JUDICIAL CIRCUIT COURT OF KY., 410
U.S. 484 (1973), WHERE THE COMMONWEALTH OF KENTUCKY HAD LODGED A
DETAINER AGAINST A PRISONER IN AN ALABAMA JAIL, WE HELD THAT THE
PETITIONER WAS IN THE CUSTODY OF KENTUCKY OFFICIALS FOR PURPOSES OF HIS
HABEAS CORPUS ACTION. 

/10/  BY CONTRAST, A FINDING OF NO "CUSTODY" IN CARAFAS V. LAVALLEE,
SUPRA, WOULD NOT MERELY HAVE POSTPONED THE EXERCISE OF HABEAS CORPUS
JURISDICTION, BUT WOULD HAVE BARRED IT ALTOGETHER.  SIMILARLY, IF WE
HAD HELD IN JONES V. CUNNINGHAM, SUPRA, THAT A PAROLEE IS NOT IN
CUSTODY, THEN HABEAS CORPUS JURISDICTION COULD NOT HAVE BEEN EXERCISED
UNTIL SUCH TIME AS RELEASE ON PAROLE WAS REVOKED.  CF. PAYTON V. ROWE,
SUPRA. 

/11/  SEE UNITED STATES EX REL. PON V. ESPERDY, 296 F. SUPP. 726
(SDNY 1969); GOLDBERG V. HENDRICK, 254 F. SUPP. 286, 288 - 289 (ED PA.
1966). 

[[DOP 

MR. JUSTICE BLACKMUN, CONCURRING IN THE RESULT. 

IN EMPHASIZE AGAIN, AS I DID IN MY SEPARATE CONCURRENCE IN BRADEN V.
30TH JUDICIAL CIRCUIT COURT OF KY., 410 U.S. 484, 501 (1973), THAT THE
COURT HAS WANDERED A LONG WAY DOWN THE ROAD IN EXPANDING TRADITIONAL
NOTIONS OF HABEAS CORPUS.  INDEED, THE COURT NOW CONCEDES THIS.  ANTE,
AT 349.  THE PRESENT CASE IS YET ANOTHER STEP.  ALTHOUGH RECOGNIZING
THAT THE CUSTODY REQUIREMENT IS DESIGNED TO PRESERVE THE WRIT AS A
REMEDY FOR SEVERE RESTRAINTS ON INDIVIDUAL LIBERTY, ANTE, AT 351, THE
COURT SEEMS NOW TO EQUATE CUSTODY WITH ALMOST ANY RESTRAINT, HOWEVER
TENUOUS.  ONE WONDERS WHERE THE END IS.  NEVERTHELESS, IN THE LIGHT OF
CASES ALREADY DECIDED BY THE COURT, I FEEL COMPELLED TO GO ALONG AND
THEREFORE CONCUR IN THE RESULT. 

[[DOP 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
POWELL JOIN, DISSENTING. 

THE ISSUE IN THIS CASE IS WHETHER PETITIONER WAS IN "CUSTODY,"
WITHIN THE MEANING OF 28 U.S.C. ^ 2241, ENTITLING HIM TO THE BENEFIT OF
THE EXTRAORDINARY WRIT OF HABEAS CORPUS.  THE COURT OF APPEALS FOR THE
NINTH CIRCUIT UNANIMOUSLY HELD THAT HE WAS NEITHER IN ACTUAL NOR
CONSTRUCTIVE CUSTODY.  IF THERE IS ANY VESTIGE LEFT OF THE OBVIOUS AND
THE ORIGINAL MEANING OF "CUSTODY" THE COURT BELOW WAS RIGHT AND THE
MAJORITY OPINION OF THIS COURT TODAY HAS FURTHER STRETCHED BOTH THE
LETTER AND THE RATIONALE OF THE STATUTE. 

PETITIONER HAS BEEN FREE ON HIS OWN RECOGNIZANCE SINCE HIS
CONVICTION AND THE IMPOSITION OF SENTENCE IN THE SUMMER OF 1969.  THE
CALIFORNIA STATUTE AUTHORIZING HIS RELEASE IMPOSES NO TERRITORIAL OR
SUPERVISORY LIMITATIONS AND HE HAS BEEN SUBJECT TO NONE.  HE HAS NOT
BEEN REQUIRED TO POST ANY SECURITY FOR HIS APPEARANCE.  AT THE TIME OF
THE FILING OF HIS FEDERAL HABEAS PETITION, THE ONLY CONCEIVABLE
RESTRAINT ON HIM WAS THAT AT THE TIME OF THE EXPIRATION OF THE STAY
GRANTED BY THE STATE COURT, PETITIONER WOULD HAVE HAD TO SURRENDER
HIMSELF TO THE CUSTODY OF THE SHERIFF.  THE RECORD SHOWS THAT FOR THE
THREE AND ONE-HALF YEARS SINCE HIS CONVICTION, PETITIONER HAS UTILIZED
HIS FREEDOM TO TRAVEL BOTH WITHIN AND WITHOUT THE STATE OF CALIFORNIA
FOR BUSINESS PURPOSES. 

PETITIONER WAS UNDER NO GREATER RESTRICTION THAN ONE WHO HAD BEEN
SUBPOENAED TO TESTIFY IN COURT AS A WITNESS.  THIS IS SIMPLY NOT
"CUSTODY" IN ANY KNOWN SENSE OF THE WORD, AND IT SURELY IS NOT WHAT WAS
MEANT BY CONGRESS WHEN IT ENACTED 28 U.S.C. ^ 2241.  THE COURT
APPARENTLY FEELS, LIKE FAUST, THAT IT HAS IN ITS PREVIOUS DECISIONS
ALREADY MADE ITS BARGAIN WITH THE DEVIL, AND IT DOES NOT SHY FROM THIS
FINAL STEP IN THE REWRITING OF THE STATUTE.  I CANNOT AGREE, AND I
THEREFORE DISSENT. 

STANELY A BASS ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE JACK GREENBERG AND PETER R. STROMER. 

DENNIS ALAN LEMPERT ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS LOUIS P. BERGNA. 
..END :




















BROWN ET AL. V. UNITED STATES, 411 U.S. 223 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT 

     NO. 71 - 6193.  ARGUED DECEMBER 7, 1972--DECIDED APRIL 17,
1973; 452 F.2D 868, AFFIRMED. 


    PETITONERS WERE CONVICTED OF TRANSPORTING AND CONSPIRING TO

  TRANSPORT STOLEN GOODS IN INTERSTATE COMMERCE TO THEIR

  COCONSPIRATOR, WHOSE RETAIL STORE WAS SEARCHED UNDER A DEFECTIVE

  WARRANT WHILE PETITIONERS WERE IN CUSTODY IN ANOTHER STATE.  THE

  CHARGES AGAINST PETITIONERS WERE LIMITED TO ACTS COMMITTED BEFORE

  THE DAY OF THE SEARCH.  AT A PRETRIAL HEARING ON PETITIONERS'

  MOTION TO SUPPRESS EVIDENCE SEIZED AT THE STORE, PETITIONERS

  ALLEGED NO PROPRIETARY OF POSSESSORY INTEREST IN THE STORE OR THE

  GOODS, AND THE DISTRICT COURT DENIED THEIR MOTION FOR LACK OF

 STANDING.  AT PETITIONERS'  TRIAL, THE SEIZED GOODS WERE

  INTRODUCED INTO EVIDENCE.  IN ADDITION, POLICE TESTIMONY AS TO

  STATEMENTS BY PETITIONERS IMPLICATING EACH OTHER WERE INTRODUCED

  INTO EVIDENCE IN A MANNER CONTRARY TO BRUTON V. UNITED STATES,

  391 U.S. 123.  THE COURT OF APPEALS CONCLUDED THAT THE BRUTON

  ERROR WAS HARMLESS IN VIEW OF OVERWHELMING INDEPENDENT PROOF OF

  GUILT AND AFFIRMED THE DISTRICT COURT'S RULING ON STANDING. 

  HELD: 

      1.  PETITIONERS HAD NO STANDING TO CONTEST THE ADMISSION OF
THE

  EVIDENCE SEIZED UNDER THE DEFECTIVE WARRANT SINCE THEY ALLEGED NO

  LEGITIMATE EXPECTATION OF PRIVACY OR INTEREST OF ANY KIND IN THE

  PREMISES SEARCHED OR THE GOODS SEIZED; THEY HAD NO "AUTOMATIC"

  STANDING UNDER JONES V. UNITED STATES, 362 U.S. 257, AS THE CASE

  AGAINST THEM DID NOT DEPEND ON POSSESSION OF THE SEIZED EVIDENCE

  AT THE TIME OF THE CONTESTED SEARCH AND SEIZURE; AND THEY COULD

  NOT VICARIOUSLY ASSERT THE PERSONAL FOURTH AMENDMENT RIGHT OF THE

  STORE OWNER IN CONTESTING ADMISSION OF THE SEIZED GOODS.  PP. 227

  - 230. 

     2.  THE TESTIMONY ERRONEOUSLY ADMITTED WAS MERELY CUMULATIVE
OF

  OTHER OVERWHELMING AND LARGELY UNCONTROVERTED EVIDENCE PROPERLY

  BEFORE THE JURY, AND THE BRUTON ERROR WAS HARMLESS.  PP. 230 -

  232. 

BURGER, C. J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

[[HC224'(ORIGINAL DOCUMENT PAGE 224)' 

PETITIONERS WERE CONVICTED BY A JURY OF TRANSPORTING STOLEN GOODS
AND OF CONSPIRACY TO TRANSPORT STOLEN GOODS IN INTERSTATE COMMERCE,
CONTRARY TO 18 U.S.C. ^ 2314 AND 18 U.S.C. ^ 371.  THE CENTRAL ISSUE
NOW IS WHETHER PETITIONERS HAVE STANDING TO CHALLENGE THE LAWFULNESS OF
THE SEIZURE OF MERCHANDISE STOLEN BY THEM BUT STORED IN THE PREMISES OF
ONE KNUCKLES, A COCONSPIRATOR.  AT THE TIME OF THE SEIZURE FROM
KNUCKLES, PETITIONERS WERE IN POLICE CUSTODY IN A DIFFERENT STATE. 
KNUCKLES SUCCESSFULLY CHALLENGED THE INTRODUCTION OF THE STOLEN GOODS
SEIZED FROM HIS STORE UNDER A FAULTY WARRANT, AND HIS CASE WAS
SEPARATELY TRIED. 

THE EVIDENCE AGAINST PETITIONERS IS LARGELY UNCONTROVERTED. 
PETITIONER BROWN WAS THE MANAGER OF A WAREHOUSE IN CINCINNATI, OHIO,
OWNED BY A WHOLESALE CLOTHING AND HOUSEHOLD GOODS COMPANY.  DURING 1968
AND 1969, THE COMPANY HAD EXPERIENCED LOSSES ATTRIBUTED TO PILFERAGE
AMOUNTING TO APPROXIMATELY $60,000 EACH YEAR.  ONE WEST, A BUYER AND
SUPERVISOR FOR THE COMPANY, RECOVERED A SLIP OF PAPER HE HAD SEEN DROP
FROM BROWN'S POCKET.  ON THE SLIP, IN BROWN'S HANDWRITING, WAS A LIST
OF WAREHOUSE MERCHANDISE, TOGETHER WITH A PRICE ON EACH ITEM THAT WAS
WELL BELOW WHOLESALE COST.  WEST ESTIMATED THAT THE LOWEST LEGITIMATE
WHOLESALE PRICE FOR THESE ITEMS WOULD HAVE BEEN A TOTAL OF ABOUT
$6,400, WHILE THE TOTAL AS PRICED BY BROWN'S LIST WAS $2,200.  THE
POLICE WERE PROMPTLY NOTIFIED AND SET UP A SURVEILLANCE OF THE
WAREHOUSE. 

[[HC225'(ORIGINAL DOCUMENT PAGE 225)'  TEN DAYS LATER, PETITIONERS
WERE OBSERVED WHEELING CARTS CONTAINING BOXES OF MERCHANDISE FROM THE
WAREHOUSE TO A TRUCK.  FROM A CONCEALED POINT, THE POLICE TOOK 20
PHOTOGRAPHS OF PETITIONERS LOADING THE MERCHANDISE ONTO THE TRUCK. 
PETITIONERS THEN LOCKED THE WAREHOUSE, AND DROVE OFF.  THEY WERE
FOLLOWED AND STOPPED BY THE POLICE, PLACED UNDER ARREST, ADVISED OF
THEIR CONSTITUTIONAL RIGHTS, AND, WITH THE LOADED TRUCK, TAKEN INTO
CUSTODY TO POLICE HEADQUARTERS.  THE GOODS IN THE TRUCK HAD NOT BEEN
LAWFULLY TAKEN FROM THE WAREHOUSE AND HAD A TOTAL VALUE OF ABOUT
$6,500. 

FOLLOWING THEIR ARREST, AND AFTER BEING FULLY INFORMED OF THEIR
CONSTITUTIONAL RIGHTS, BOTH PETITIONERS MADE SEPARATE CONFESSIONS TO
POLICE INDICATING THAT THEY HAD CONSPIRED WITH KNUCKLES TO STEAL FROM
THE WAREHOUSE, THAT THEY HAD STOLEN GOODS FROM THE WAREHOUSE IN THE
PAST, AND THAT THEY HAD TAKEN THESE GOODS, ON TWO OCCASIONS ABOUT TWO
MONTHS BEFORE THEIR ARREST, TO KNUCKLES' STORE IN MANCHESTER,
KENTUCKY.  PETITIONERS ALSO INDICATED THAT THEY HAD "SOLD" THE
PREVIOUSLY STOLEN GOODS ON DELIVERY TO KNUCKLES FOR VARIOUS AMOUNTS OF
CASH.  KNUCKLES' STORE WAS THEN SEARCHED PURSUANT TO A WARRANT, AND
GOODS STOLEN FROM THE COMPANY, WORTH OVER $100,000 IN RETAIL VALUE,
WERE DISCOVERED.  KNUCKLES WAS AT THE STORE DURING THE SEARCH, BUT
PETITIONERS WERE IN CUSTODY IN OHIO. 

PRIOR TO TRIAL, PETITIONERS AND KNUCKLES /1/  MOVED TO SUPPRESS THE
STOLEN MERCHANDISE FOUND AT KNUCKLES' STORE.  THE PROSECUTION CONCEDED
THAT THE WARRANT FOR THE SEARCH OF KNUCKLES' STORE WAS DEFECTIVE.  THE
DISTRICT COURT HELD A HEARING ON PETITIONERS' MOTION TO SUPPRESS THE
EVIDENCE.  PETITIONERS, HOWEVER, ALLEGED NO PROPRIETARY OR POSSESSORY
INTEREST IN KNUCKLES' PEREMISES OR IN THE GOODS SEIZED THERE, NOR WAS
ANY EVIDENCE OF SUCH AN INTEREST PRESENTED TO THE DISTRICT COURT. 

[[HC226'(ORIGINAL DOCUMENT PAGE 226)'  AFTER THE HEARING, THE
DISTRICT COURT GRANTED KNUCKLES' MOTION TO SUPPRESS THE GOODS SEIZED,
BUT DENIED PETITIONERS' MOTION FOR LACK OF STANDING.  THE CHARGES
AGAINST KNUCKLES WERE SEVERED FOR SEPARATE TRIAL. 

AT PETITIONERS' TRIAL, STOLEN MERCHANDISE SEIZED FROM KNUCKLES'
STORE WAS RECEIVED IN EVIDENCE.  THE EVENTS LEADING TO PETITIONERS'
ARRESTS UPON LEAVING THE WAREHOUSE AND WHILE THEY WERE IN POSSESSION OF
STOLEN GOODS WERE FULLY DESCRIBED BY POLICE OFFICERS WHO WERE
EYEWITNESSES.  THE 20 PHOTOGRAPHS TAKEN OF THE CRIME IN PROGRESS WERE
ADMITTED INTO EVIDENCE.  THERE WAS ADDITIONAL INCRIMINATING TESTIMONY
BY THE OWNER OF THE SERVICE STATION FROM WHOM PETITIONERS RENTED TRUCKS
USED IN THE THEFTS, AND BY FIVE WITNESSES WHO SAW PETITIONERS UNLOADING
BOXES FROM A TRUCK LATE AT NIGHT AND CARRYING THE BOXES INTO KNUCKLES'
STORE.  THE PROSECUTOR ALSO INTRODUCED INTO EVIDENCE, OVER PETITIONERS'
OBJECTIONS, PORTIONS OF EACH PETITIONER'S CONFESSION WHICH IMPLICATED
THE OTHER IN A MANNER NOW CONCEDED TO BE CONTRARY TO BRUTON V. UNITED
STATES, 391 U.S. 123 (1968).  THOSE CONSIDERABLE PARTS OF PETITIONERS'
CONFESSIONS WHICH DID NOT IMPLICATE THE OTHER WERE ADMITTED WITHOUT
OBJECTION.  THE JURY RETURNED VERDICTS OF GUILTY ON ALL COUNTS. 

ON APPEAL, THE COURT OF APPEALS FOR THE SIXTH CIRCUIT RECOGNIZED
THAT A BRUTON ERROR HAD OCCURRED, BUT WENT ON TO CONCLUDE THAT THE
INDEPENDENT PROOF OF PETITIONERS' GUILT WAS "SO OVERWHELMING THAT THE
ERROR WAS HARMLESS,"  CITING HARRINGTON V. CALIFORNIA, 395 U.S. 250
(1969).  THE COURT OF APPEALS ALSO HELD THAT THE STOLEN MERCHANDISE
SEIZED PURSUANT TO THE DEFECTIVE WARRANT WAS PROPERLY ADMITTED AGAINST
PETITIONERS, STATING: 

"THIS RULING (OF THE DISTRICT COURT) WAS CORRECT BECAUSE APPELLANTS
CLAIMED NO POSSESSORY OR PROPRIETARY RIGHTS IN THE GOODS OR IN
KNUCKLES'  STORE, AND IT IS CLEAR THAT THEY CANNOT ASSERT THE FOURTH
AMENDMENT RIGHT OF ANOTHER."  452 F.2D 868, 870 (1971). 

[[HC227'(ORIGINAL DOCUMENT PAGE 227)'

        (1) 

PETITIONERS CONTEND THAT THEY HAVE "AUTOMATIC" STANDING TO CHALLENGE
THE SEARCH AND SEIZURE AT KNUCKLES' STORE.  THEY RELY ON THE DECISION
OF THIS COURT IN JONES V. UNITED STATES, 362 U.S. 257 (1960),
ESTABLISHING A RULE OF "AUTOMATIC" STANDING TO CONTEST AN ALLEGEDLY
ILLEGAL SEARCH WHERE THE SAME POSSESSION NEEDED TO ESTABLISH STANDING
IS "AN ESSENTIAL ELEMENT OF THE OFFENSE . . . CHARGED."  SIMMONS V.
UNITED STATES, 390 U.S. 377, 390 (1968).  THAT CASE INVOLVED (A) A
SEIZURE OF CONTRABAND NARCOTICS, (B) A DEFENDANT WHO WAS PRESENT AT THE
SEIZURE, /2/  AND (C) AN OFFENSE IN WHICH THE DEFENDANT'S POSSESSION OF
THE SEIZED NARCOTICS AT THE TIME OF THE CONTESTED SEARCH AND SEIZURE
WAS A CRITICAL PART OF THE GOVERNMENT'S CASE.  JONES, SUPRA, AT 263. 
MR. JUSTICE FRANKFURTER, WRITING FOR THE COURT IN JONES, EMPHASIZED THE
"DILEMMA" INHERENT IN A DEFENDANT'S NEED TO ALLEGE "POSSESSION" TO
CONTEST A SEIZURE, WHEN SUCH ADMISSION OF POSSESSION COULD LATER BE
USED AGAINST HIM.  ID., AT 262 - 264.  MR. JUSTICE FRANKFURTHER QUOTED
THE WORDS OF JUDGE LEARNED HAND: 

"MEN MAY WINCE AT ADMITTING THAT THEY WERE THE OWNERS, OR IN
POSSESSION, OF CONTRABAND PROPERTY; MAY WISH AT ONCE TO SECURE THE
REMEDIES OF A POSSESSOR, AND AVOID THE PERILS OF THE PART; BUT
EQUIVOCATION WILL NOT SERVE.  IF THEY COME AS VICTIMS, THEY MUST TAKE
ON THAT ROLE, WITH ENOUGH DETAIL TO CAST THEM WITHOUT QUESTION. 

[[HC228'(ORIGINAL DOCUMENT PAGE 228)'

  THE PETITIONERS AT BAR SHRANK FROM THAT PREDICAMENT; BUT THEY
WERE OBLIGED TO CHOOSE ONE HORN

  OF THE DELEMMA."  CONNOLLY V. MEDALIE, 58 F.2D 629, 630 (CA2
1932). 

THE SELF-INCRIMINATION DILEMMA, SO CENTRAL TO THE JONES DECISION,
CAN NO LONGER OCCUR UNDER THE PREVAILING INTERPRETATION OF THE
CONSTITUTION.  SUBSEQUENT TO JONES, IN SIMMONS V. UNITED STATES, SUPRA,
WE HELD THAT A PROSECUTOR MAY NOT USE AGAINST A DEFENDANT AT TRIAL ANY
TESTIMONY GIVEN BY THAT DEFENDANT AT A PRETRIAL HEARING TO ESTABLISH
STANDING TO MORE TO SUPPRESS EVIDENCE.  390 U.S., AT 389 - 394.  FOR
EXAMPLE, UNDER THE SIMMONS DOCTRINE THE DEFENDANT IS PERMITTED TO
ESTABLISH THE REQUISITE STANDING BY CLAIMING "POSSESSION"  OF
INCRIMINATING EVIDENCE.  IF HE IS GRANTED STANDING ON THE BASIS OF SUCH
EVIDENCE, HE MAY THEN NONETHELESS PRESS FOR ITS EXCLUSION; BUT, WHETHER
HE SUCCEEDS OR FAILS TO SUPPRESS THE EVIDENCE, HIS TESTIMONY ON THAT
SCORE IS NOT DIRECTLY ADMISSIBLE AGAINST HIM IN THE TRIAL.  THUS,
PETITIONERS IN THIS CASE COULD HAVE ASSERTED, AT THE PRETRIAL
SUPPRESSION HEARING, A POSSESSORY INTEREST IN THE GOODS AT KNUCKLES'
STORE WITHOUT ANY DANGER OF INCRIMINATING THEMSELVES.  THEY DID NOT DO
SO. 

BUT IT IS NOT NECESSARY FOR US NOW TO DETERMINE WHETHER OUR DECISION
IN SIMMONS, SUPRA, MAKES JONES'"AUTOMATIC" STANDING UNNECESSARY.  WE
RESERVE THAT QUESTION FOR A CASE WHERE POSSESSION AT THE TIME OF THE
CONTESTED SEARCH AND SEIZURE IS "AN ESSENTIAL ELEMENT OF THE OFFENSE .
. . CHARGED."  SIMMONS, 390 U.S., AT 390.  HERE, UNLIKE JONES, THE
GOVERNMENT'S CASE AGAINST PETITIONERS DOES NOT DEPEND ON PETITIONERS'
POSSESSION OF THE SEIZED EVIDENCE AT THE TIME OF THE CONTESTED SEARCH
AND SEIZURE.  /3/  THE STOLEN GOODS SEIZED HAD BEEN TRANSPORTED AND
"SOLD" BY PETITIONERS TO KNUCKLES APPROXIMATELY TWO MONTHS BEFORE THE
CHALLENGED SEARCH. 

[[HC229'(ORIGINAL DOCUMENT PAGE 229)'  THE CONSPIRACY AND
TRANSPORTATION ALLEGED BY THE INDICTMENT WERE CAREFULLY LIMITED TO THE
PERIOD BEFORE THE DAY OF THE SEARCH. 

IN DECIDING THIS CASE, THEREFORE, IT IS SUFFICIENT TO HOLD THAT
THERE IS NO STANDING TO CONTEST A SEARCH AND SEIZURE WHERE, AS HERE,
THE DEFENDANTS:  (A) WERE NOT ON THE PREMISES AT THE TIME OF THE
CONTESTED SEARCH AND SEIZURE; (B) ALLEGED NO PROPRIETARY OR POSSESSORY
INTEREST IN THE PREMISES; AND (C) WERE NOT CHARGED WITH AN OFFENSE THAT
INCLUDES, AS AN ESSENTIAL ELEMENT OF THE OFFENSE CHARGED, POSSESSION OF
THE SEIZED EVIDENCE AT THE TIME OF THE CONTESTED SEARCH AND SEIZURE. 
THE VICE OF ALLOWING THE GOVERNMENT TO ALLEGE POSSESSION AS PART OF THE
CRIME CHARGED, AND YET DENY THAT THERE WAS POSSESSION SUFFICIENT FOR
STANDING PURPOSES, IS NOT PRESENT.  THE GOVERNMENT CANNOT BE ACCUSED OF
TAKING "ADVANTAGE OF CONTRADICTORY POSITIONS."  JONES V. UNITED STATES,
SUPRA, AT 263.  SEE UNITED STATES V. ALLSENBERRIE, 424 F.2D 1209, 1212
1214 (CA7 1970); UNITED STATES V. COWAN, 396 F.2D 83, 86 (CA2 1968);
NIRO V. UNITED STATES, 388 F.2D 535, 537 (CA1 1968); UNITED STATES V.
BOZZA, 365 F.2D 206, 223 (CA2 1966).  BUT CF. UNITED STATES V. PRICE,
447 F.2D 23, 29 (CA2), CERT. DENIED, 404 U.S. 912 (1971). 

AGAIN, WE DO NOT DECIDE THAT THIS VICE OF PROSECUTORIAL SELF
CONTRADICTION WARRANTS THE CONTINUED SURVIVAL OF JONES'  "AUTOMATIC"
STANDING NOW THAT OUR DECISION IN SIMMONS HAS REMOVED THE DANGER OF
COERCED SELF-INCRIMINATION.  WE SIMPLY SEE NO REASON TO AFFORD SUCH
"AUTOMATIC" STANDING WHERE, AS HERE, THERE WAS NO RISK TO A DEFENDANT
OF EITHER SELF-INCRIMINATION OR PROSECUTORIAL SELF-CONTRADICTION. 
PETITIONERS WERE AFFORDED A FULL HEARING ON STANDING AND FAILED TO
ALLEGE ANY LEGITIMATE INTEREST OF ANY KIND IN THE PREMISES SEARCHED OR
THE MERCHANDISE SEIZED.  NOR, INCIDENTALLY, DOES THE RECORD REVEAL ANY
SUCH INTEREST.  /4/ 

[[HC230'(ORIGINAL DOCUMENT PAGE 230)'  AS THE COURT OF APPEALS
CORRECTLY CONCLUDED, PETITIONERS HAD NO STANDING TO CONTEST THE
DEFECTIVE WARRANT USED TO SEARCH KNUCKLES'  STORE; THEY COULD NOT THEN
AND CANNOT NOW RELY ON THE FOURTH AMENDMENT RIGHTS OF ANOTHER.  "FOURTH
AMENDMENT RIGHTS ARE PERSONAL RIGHTS WHICH, LIKE SOME OTHER
CONSTITUTIONAL RIGHTS, MAY NOT BE VICARIOUSLY ASSERTED.  SIMMONS V.
UNITED STATES, 390 U.S. 377 (1968); JONES V. UNITED STATES, 362 U.S.
257 (1960)."  ALDERMAN V. UNITED STATES, 394 U.S. 165, 174 (1969).  SEE
WONG SUN V. UNITED STATES, 371 U.S. 471, 492 (1963). 

      (2) 

THE SOLICITOR GENERAL CONCEDES THAT, UNDER BRUTON, SUPRA, STATEMENTS
MADE BY PETITIONERS WERE IMPROPERLY ADMITTED INTO EVIDENCE.  NEITHER
PEITIONER TESTIFIED AT THE TRIAL.  THE PROSECUTION TENDERED POLICE
TESTIMONY AS TO STATEMENTS MADE BY SMITH IMPLICATING BROWN IN THE
CRIMES CHARGED, EVEN THOUGH THESE STATEMENTS WERE MADE OUT OF BROWN'S
PRESENCE.  /5/  THIS TESTIMONY WAS ADMITTED INTO EVIDENCE. 

[[HC231'(ORIGINAL DOCUMENT PAGE 231)'  SIMILAR STATEMENTS, MADE BY
BROWN RELATING TO SMITH, WERE ALSO ADMITTED.  PETITIONERS' COUNSEL MADE
TIMELY OBJECTIONS. 

UPON AN INDEPENDENT EXAMINATION OF THE RECORD, WE AGREE WITH THE
COURT OF APPEALS THAT THE BRUTON ERRORS WERE HARMLESS.  THE TESTIMONY
ERRONEOUSLY ADMITTED WAS MERELY CUMULATIVE OF OTHER OVERWHELMING AND
LARGELY UNCONTROVERTED EVIDENCE PROPERLY BEFORE THE JURY.  IN THIS
CASE, AS IN HARRINGTON V. CALIFORNIA, 395 U.S. 250 (1969), THE
INDEPENDENT EVIDENCE "IS SO OVERWHELMING THAT UNLESS WE SAY THAT NO
VIOLATION OF BRUTON CAN CONSTITUTE HARMLESS ERROR, WE MUST LEAVE THIS .
. . CONVICTION UNDISTURBED," ID., AT 254.  WE REJECT THE NOTION THAT A
BRUTON ERROR CAN NEVER BE HARMLESS.  "(A) DEFENDANT IS ENTITLED TO A
FAIR TRIAL BUT NOT A PERFECT ONE," FOR THERE ARE NO PERFECT TRIALS. 

[[HC232'(ORIGINAL DOCUMENT PAGE 232)'  BRUTON V. UNITED STATES, 391
U.S., AT 135, QUOTING LUTWAK V. UNITED STATES, 344 U.S. 604, 619
(1953).  SEE SCHNEBLE V. FLORIDA, 405 U.S. 427, 432 (1972); CHAPMAN V.
CALIFORNIA, 386 U.S. 18, 23 - 24 (1967). 

              AFFIRMED. 

/1/  KNUCKLES WAS JOINED IN THE CONSPIRACY COUNT AND WAS ALSO
CHARGED WITH HAVING RECEIVED STOLEN MERCHANDISE, CONTRARY TO 18 U.S.C.
^ 2315.     /2/  PRESENCE OF THE DEFENDANT AT THE SEARCH AND SEIZURE
WAS HELD, IN JONES, TO BE A SUFFICIENT SOURCE OF STANDING IN ITSELF. 
JONES V. UNITED STATES, 362 U.S. 257, 267 (1960).  HERE, OF COURSE,
PETITIONERS WERE NOT PRESENT AT THE CONTESTED SEARCH AND SEIZURE, BUT
WERE IN POLICE CUSTODY IN A DIFFERENT STATE.  SEE WONG SUN V. UNITED
STATES, 371 U.S. 471, 492 N. 18 (1963). 

/3/  "PETITIONER'S CONVICTION FLOWS FROM HIS POSSESSION OF THE
NARCOTICS AT THE TIME OF THE SEARCH."  JONES, SUPRA, AT 263. 

/4/  PEITIONERS NOW CONTEND THAT THEY HAD A PARTNERSHIP "PROPERTY
INTEREST" IN OR "CONSTRUCTIVE POSSESSION" OF THE STOLEN GOODS FOUND AT
KNUCKLES' STORE, AS A CONSPIRACY IS A "PARTNERSHIP IN CRIME."  EVEN IF
THE PETITIONERS HAD NOT ALREADY "SOLD" THE MERCHANDISE TO KNUCKLES,
THEIR "PROPERTY INTEREST" IN THE MERCHANDISE WAS TOTALLY ILLEGITIMATE. 
THE "CONSTRUCTIVE POSSESSION" ARGUMENT IS EQUALLY INGENIOUS, BUT
EQUALLY UNAVAILING.  EVEN ON THE DOUBTFUL ASSUMPTION THAT THE ALLEGED
CONSPIRACY BETWEEN PETITIONERS AND KNUCKLES COULD SUPPORT A
"CONSTRUCTIVE POSSESSION" OF THE MERCHANDISE AT KNUCKLES' STORE, THE
CONSPIRACY WAS ALLEGED TO HAVE CONTINUED ONLY "TO AND INCLUDING THE
28TH DAY OF AUGUST, 1970."  THE SEIZURE WAS MADE ON AUGUST 29, 1970. 
FINALLY, THESE CONTENTIONS WERE NOT MADE IN THE COURTS BELOW OR IN THE
PETITION FOR CERTIORARI.  THEY ARE, THEREFORE, NOT PROPERLY BEFORE THIS
COURT.  LAWN V. UNITED STATES, 355 U.S. 339, 362 - 363, N. 16 (1958). 

/5/  AN FBI AGENT, WHITLEY, TESTIFIED AS FOLLOWS:  "(SMITH STATED
THAT) DURING JUNE 1970, ANOTHER INDIVIDUAL WHO WAS ALSO EMPLOYED AT
CENTRAL JOBBING COMPANY, ONE JOE BROWN, HAD APPROACHED HIM AND ASKED
HIM TO HELP STEAL MERCHANDISE FROM CENTRAL JOBBING COMPANY AND HELP HIM
TRANSPORT THIS MERCHANDISE TO MANCHESTER, KENTUCKY.  HE ADVISED ME THAT
DURING JUNE OF 1970, HE AND JOE BROWN MADE TWO TRIPS TO MANCHESTER,
KENTUCKY, WITH MERCHANDISE CONSISTING OF HOUSEHOLD GOODS AND CLOTHING
WHICH THEY HAD STOLEN FROM CENTRAL JOBBING COMPANY.  HE RECALLED THAT
TO THE BEST OF HIS KNOWLEDGE . . . THESE DATES WERE JUNE 5TH AND 29TH,
1970.  HE SAID THAT HE AND MR. BORWN HAD RECEIVED APPROXIMATELY ONE
HALF THE VALUE OF THE STOLEN MERCHANDISE FROM THE OWNERS OF THE
KNUCKLES DISCOUNT STORE IN MANCHESTER, KENTUCKY, AND THAT THE OWNERS OF
THE DISCOUNT STORE KNEW THAT THE MERCHANDISE WAS STOLEN.  MR. SMITH
STATED FURTHER THAT HE HAD RECEIVED APPROXIMATELY $2,500.00 AS HIS
SHARE OF THE MONEY WHICH THEY HAD RECEIVED FROM THE STOLEN
MERCHANDISE." 

ANOTHER WITNESS, A DETECTIVE HULGIN FROM THE COUNTY SHERIFF'S
PATROL, HAD ALSO TESTIFIED TO SIMILAR STATEMENTS BY SMITH, ADDING THAT
SMITH HAD STATED THAT THE LIST, WHICH WAS FOUND BY WEST AT THE
WAREHOUSE, HAD BEEN PREPARED AND SHOWN TO HIM BY BROWN, AND THAT THE
TOTAL PRICE OF $2,200 SHOWN ON THE LIST WAS THE AMOUNT OF MONEY THAT
PETITIONERS WERE TO RECEIVE FOR THAT PARTICULAR SHIPMENT TO KNUCKLES. 
HULGIN ALSO TESTIFIED THAT HE WAS TOLD BY BROWN THAT SMITH HAD
ACCOMPANIED BROWN ON TWO PREVIOUS OCCASIONS WHEN BROWN DELIVERED STOLEN
GOODS TO KNUCKLES.  . 

LOWELL W. LUNDY ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONERS. 

MARK L. EVANS ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE BRIEF
WERE SOLICTOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL PETERSEN,
DEPUTY SOLICITOR GENERAL LACOVARA, WILLIAM BRADFORD REYNOLDS, AND ROGER
A. PAULEY. 
..END :














DAVIS V. UNITED STATES, 411 U.S. 233 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 71 - 6481.  ARGUED FEBRUARY 20, 1973--DECIDED APRIL 17,

           1973; 455 F.2D 919, AFFIRMED. 


    THREE YEARS AFTER HIS CONVICTION FOR A FEDERAL CRIME, PETIONER

  BROUGHT THIS COLLATERAL ATTACK ON THE GROUND OF UNCONSTITUTIONAL

  DISCRIMINATION IN THE COMPOSITION OF THE GRAND JURY THAT INDICTED

  HIM.  THE DISTRICT COURT FOUND THAT, THOUGH PETITIONER COULD HAVE

  DONE SO, HE AT NO STAGE OF THE PROCEEDINGS ATTACKED THE GRAND

  JURY'S COMPOSITION, AND IT CONCLUDED THAT UNDER FED. RULE CRIM.

  PROC. 12(B) (2) HE HAD WAIVED HIS RIGHT TO DO SO.  THE COURT ALSO

  DETERMINED THAT SINCE THE CHALLENGED JURY-SELECTION METHOD HAD

  LONG OBTAINED, THE GRAND JURY THAT INDICTED PETITIONER INDICTED

  HIS TWO WHITE ACCOMPLICES, AND THE CASE AGAINST PETITIONER WAS "A

  STRONG ONE," THERE WAS NO "CAUSE SHOWN" UNDER THE RULE TO GRANT

  RELIEF FROM THE WAIVER.  HELD:

     1.  THE WAIVER STANDARD SET FORTH IN FED. RULE CRIM. PROC.

  12(B) (2) GOVERNS AN UNTIMELY CLAIM OF GRAND JURY DISCRIMINATION,

  NOT ONLY DURING THE CRIMINAL PROCEEDING BUT ALSO LATER ON

  COLLATERIAL REVIEW.  SHOTWELL MFG. CO. V. UNITED STATES, 371 U.S.

  341, FOLLOWED; KAUFMAN V. UNITED STATES, 394 U.S. 217,

  DISTINGUISHED.  PP. 236 - 243. 

     2.  THE DISTRICT COURT, IN THE LIGHT OF THE RECORD IN THIS

  CASE, DID NOT ABUSE ITS DISCRETION IN DENYING PETITIONER RELIEF

  FROM THE APPLICATION OF THE WAIVER PROVISION.  PP. 243 - 245. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED. 
MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN,
JJ., JOINED, POST, P. 245. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

[[HC234'(ORIGINAL DOCUMENT PAGE 234)' 

WE ARE CALLED UPON TO DETERMINE THE EFFECT OF RULE 12(B) (2) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE ON A POST-CONVICTION MOTION FOR
RELIEF WHICH RAISES FOR THE FIRST TIME A CLAIM OF UNCONSTITUTIONAL
DISCRIMINATION IN THE COMPOSITION OF A GRAND JURY.  AN INDICTMENT WAS
RETURNED IN THE DISTRICT COURT CHARGING PETITIONER DAVIS, A NEGRO, AND
TWO WHITE MEN WITH ENTRY INTO A FEDERALLY INSURED BANK WITH INTENT TO
COMMIT LARCENY IN VIOLATION OF 18 U.S.C. ^^ 2 AND 2113(A).  REPRESENTED
BY APPOINTED COUNSEL, /1/  PETITIONER ENTERED A NOT-GUILTY PLEA AT HIS
ARRAIGNMENT AND WAS GIVEN 30 DAYS WITHIN WHICH TO FILE PRETRIAL
MOTIONS.  HE TIMELY MOVED TO QUASH HIS INDICTMENT ON THE GROUND THAT IT
WAS THE RESULT OF AN ILLEGAL ARREST, BUT MADE NO OTHER PRETRIAL MOTIONS
RELATING TO THE INDICTMENT. 

ON THE OPENING DAY OF THE TRIAL, FOLLOWING VOIR DIRE OF THE JURY,
THE DISTRICT JUDGE RULED ON PETITIONER'S PRETRIAL MOTIONS IN CHAMBERS
AND ORDERED THAT THE MOTION TO QUASH ON THE ILLEGAL ARREST GROUND BE
CARRIED WITH THE CASE.  HE THEN ASKED TWICE IF THERE WERE ANYTHING ELSE
BEFORE COMMENCING TRIAL.  PETITIONER WAS CONVICTED AND SENTENCED TO 14
YEARS' IMPRISONMENT.  HIS CONVICTION WAS AFFIRMED ON APPEAL. 

[[HC235'(ORIGINAL DOCUMENT PAGE 235)'  409 F.2D 1095 (CA5 1969). 

POST-CONVICTION MOTIONS WERE THEREAFTER FILED AND DENIED, BUT NONE
DEALT WITH THE ISSUE PRESENTED IN THIS CASE.  ALMOST THREE YEARS AFTER
HIS CONVICTION, PETITIONER FILED THE INSTANT MOTION TO DISMISS THE
INDICTMENT, PURSUANT TO 28 U.S.C. ^ 2255, ALLEGING THAT THE DISTRICT
COURT HAD ACQUIESCED IN THE SYSTEMATIC EXCLUSION OF QUALIFIED NEGRO
JURYMEN BY REASON OF THE USE OF A "KEY MAN" SYSTEM OF SELECTION, /2/
AN ASSERTED VIOLATION OF THE "MANDATORY REQUIREMENT OF THE STATUTE LAWS
SET FORTH . . . IN TITLE 28, U.S.C.A. SECTION 1861, 1863, 1864, AND THE
5TH AMENDMENT OF THE UNITED STATES CONSTITUTION."  /3/  HIS CHALLENGE
ONLY WENT TO THE COMPOSITION OF THE GRAND JURY AND DID NOT INCLUDE THE
PETIT JURY WHICH FOUND HIM GUILTY.  THE DISTRICT COURT, THOUGH IT TOOK
NO EVIDENCE ON THE MOTION, INVITED ADDITIONAL BRIEFS ON THE ISSUE OF
WAIVER.  IT THEN DENIED THE MOTION.  IN ITS MEMORANDUM OPINION IT
RELIEF ON SHOTWELL MFG. CO. V. UNITED STATES, 371 U.S. 341 (1963), AND
CONCLUDED THAT PETITIONER HAD WAIVED HIS RIGHT TO OBJECT TO THE
COMPOSITION OF THE GRAND JURY BECAUSE SUCH A CONTENTION IS WAIVED UNDER
RULE 12 (B) (2) UNLESS RAISED BY MOTION PRIOR TO TRIAL.  ALSO, SINCE
THE "KEY MAN" METHOD OF SELECTING GRAND JURORS HAD BEEN OPENLY FOLLOWED
FOR MANY YEARS PRIOR TO PETITIONER'S INDICTMENT; SINCE THE SAME GRAND
JURY THAT INDICTED PETITIONER INDICTED HIS TWO WHITE ACCOMPLICES; AND
SINCE THE CASE AGAINST PETITIONER WAS "A STRONG ONE," THE COURT
DETERMINED THAT THERE WAS NOTHING IN THE FACTS OF THE CASE OR IN THE
NATURE OF THE CLAIM JUSTIFYING THE EXERCISE OF THE POWER TO GRANT
RELIEF UNDER RULE 12(B) (2) FOR "CAUSE SHOWN." 

[[HC236'(ORIGINAL DOCUMENT PAGE 236)' 

THE COURT OF APPEALS AFFIRMED ON THE BASIS OF SHOTWELL, SUPRA, AND
RULE 12(B) (2).  BECAUSE ITS DECISION IS CONTRARY TO THOSE OF THE NINTH
CIRCUIT IN FERNANDEX V. MEIER, 408 F.2D 974 (1969), AND CHEE V. UNITED
STATES, 449 F.2D 747 (1971), WE GRANTED CERTIORARI TO RESOLVE THE
CONFLICT. 

PETITIONER CONTENDS THAT BECAUSE HIS ^ 2255 MOTION ALLEGED
DEPRIVATION OF A FUNDAMENTAL CONSTITUTIONAL RIGHT, ONE WHICH HAS BEEN
RECOGNIZED SINCE STRAUDER V. WEST VIRGINIA, 100 U.S. 303 (1880), HIS
CASE IS CONTROLLED BY THIS COURT'S DISPOSITIONS OF KAUFMAN V. UNITED
STATES, 394 U.S. 217 (1969), AND SANDERS V. UNITED STATES, 373 U.S. 1
(1963), RATHER THAN SHOTWELL MFG. CO. V. UNITED STATES, SUPRA, AND RULE
12 (B) (2).  ACCORDINGLY, HE URGES THAT HIS COLLATERAL ATTACK ON HIS
CONVICTION MAY BE PRECLUDED ONLY AFTER A HEARING IN WHICH IT IS
ESTABLISHED THAT HE "DELIBERATELY BYPASSED"  OR "UNDERSTANDINGLY AND
KNOWINGLY" WAIVED HIS CLAIM OF UNCONSTITUTIONAL GRAND JURY
COMPOSITION.  SEE FAY V. MOIA, 327 U.S. 391 (1963), AND JOHNSON V.
ZERBST, 304 U.S. 458 (1938). 

        I 

RULE 12(B)(2) PROVIDES IN PERTINENT PART THAT "(DEFENSES AND
OBJECTIONS BASED ON DEFECTS IN THE INSTITUTION OF THE PROSECUTION OR IN
THE INDICTMENT . . . MAY BE RAISED ONLY BY MOTION BEFORE TRIAL,"  AND
THAT FAILURE TO PRESENT SUCH DEFENSES OR OBJECTIONS "CONSTITUTES A
WAIVER THEREOF, BUT THE COURT FOR CAUSE SHOWN MAY GRANT RELIEF FROM THE
WAIVER."  BY ITS TERMS, IT APPLIES TO BOTH PROCEDURAL AND
CONSTITUTIONAL DEFECTS IN THE INSTITUTION OF PROSECUTIONS WHICH DO NOT
AFFECT THE JURISDICTION OF THE TRIAL COURT. 

[[HC237'(ORIGINAL DOCUMENT PAGE 237)'  ACCORDING TO THE NOTES OF THE
ADVISORY COMMITTEE ON RULES, THE WAIVER PROVISION WAS DESIGNED TO
CONTINUE EXISTING LAW, WHICH AS EXEMPLIFIED BY THIS COURT'S DECISION IN
UNITED STATES V. GALE, 109 U.S. 65 (1883), WAS, INTER ALIA, THAT
DEFENDANTS WHO PLEADED TO AN INDICTMENT AND WENT TO TRIAL WITHOUT
MAKING ANY NONJURISDICTIONAL OBJECTION TO THE GRAND JURY, EVEN ONE
UNCONSTITUTIONALLY COMPOSED, WAIVED ANY RIGHT OF SUBSEQUENT COMPLAINT
ON ACCOUNT THEREOF.  NOT SURPRISINGLY, THEREFORE, THE ADVISORY
COMMITTEE'S NOTES EXPRESSLY INDICATE THAT CLAIMS SUCH AS PETITIONER'S
ARE MEANT TO BE WITHIN THE RULE'S PURVIEW: 

     "THESE TWO PARAGRAPHS (12(B) (1) AND (2)) CLASSIFY INTO TWO

  GROUPS ALL OBJECTIONS AND DEFENSES TO BE INTERPOSED BY MOTION

  PRESCRIBED BY RULE 12 (A).  IN ONE GROUP ARE DEFENSES AND

  OBJECTIONS WHICH MUST BE RAISED BY MOTION, FAILURE TO DO SO

  CONSTITUTING A WAIVER.  . . 

     ". . . AMONG THE DEFENSES AND OBJECTIONS IN THIS GROUP ARE THE

  FOLLOWING:  ILLEGAL SELECTION OR ORGANIZATION OF THE GRAND JURY .

  . ."  NOTES OF ADVISORY COMMITTEE FOLLOWING FED. RULE CRIM. PROC.

12, 18 U.S.C. APP. 

THIS COURT HAD OCCASION TO CONSIDER THE RULE'S APPLICATION IN
SHOTWELL MFG. CO. V. UNITED STATES, SUPRA, A CASE INVOLVING TAX-EVASION
CONVICTIONS.  IN A MOTION FILED MORE THAN FOUR YEARS AFTER THEIR TRIAL,
BUT BEFORE THE CONCLUSION OF DIRECT REVIEW, PETITIONERS ALLEGED THAT
BOTH THE GRAND AND PETIT JURY ARRAYS WERE ILLEGALLY CONSTITUTED
BECAUSE, INTER ALIA, "THE CLERK OF THE DISTRIC COURT FAILED TO EMPLOY A
SELECTION METHOD DESIGNED TO SECURE A CROSS-SECTION OF THE
POPULATION."  /4/  371 U.S., AT 361 - 362.  DEEMING THE CASE CONTROLLED
BY RULE 12(B) (2), THE DISTRICT COURT HELD A HEARING TO DETERMINE
WHETHER THERE WAS "CAUSE" WARRANTING RELIEF FROM THE WAIVER PROVISION
AND IT FOUND THAT "THE FACTS CONCERNING THE SELECTION OF THE GRAND AND
PETITI JURIES WERE NOTORIOUS AND AVAILABLE TO PETITIONERS IN THE
EXERCISE OF DUE DILIGENCE BEFORE THE TRIAL." 

[[HC238'(ORIGINAL DOCUMENT PAGE 238)'  ID., AT 363.  IT CONCLUDED
THAT THEIR FAILURE TO EXERCISE DUE DILIGENCE COMBINED WITH THE ABSENCE
OF PREJUDICE FROM THE ALLEGED ILLEGALITIES PRECLUDED THE RAISING OF THE
ISSUE, AND THE COURT OF APPEALS AFFIRMED.  IN THIS COURT, PETITIONERS
CONCEDED THAT RULE 12(B) (2) APPLIED TO THEIR OBJECTION TO THE GRAND
JURY ARRAY, BUT THEY DENIED THAT IT APPLIED TO THE PETIT JURY.  BOTH
OBJECTIONS WERE HELD FORECLOSED BY THE PETITIONERS' YEARS OF INACTION,
AND THE LOWER COURT'S APPLICATION OF THE RULE WAS AFFIRMED. 

SHOTWELL THUS CONFIRMS THAT RULE 12(B) (2) PRECLUDES UNTIMELY
CHALLENGES TO GRAND JURY ARRAYS, EVEN WHEN SUCH CHALLENGES ARE ON
CONSTITUTIONAL GROUNDS.  /5/  DESPITE THE STRONG ANALOGY BETWEEN THE
EFFECT OF THE RULE AS CONSTRUED IN SHOTWELL AND PETITIONER'S ^ 2255
ALLEGATIONS, HE NONETHELESS CONTENDS THAT KAUFMAN V. UNITED STATES,
SUPRA, ESTABLISHES THAT HE IS NOT PRECLUDED FROM RAISING HIS
CONSITUTIONAL CHALLENGE IN A FEDERAL HABEAS CORPUS PROCEEDING.  /6/ 

[[HC239'(ORIGINAL DOCUMENT PAGE 239)'  SEE FAY V. NOIA, SUPRA.  WE
DISAGREE. 

IN KAUFMAN, THE DEFENDANT IN A BANK ROBBERY CONVICTION SOUGHT
COLLATERAL RELIEF UNDER ^ 2255 ALLEGING THAT ILLEGALLY SEIZED EVIDENCE
HAD BEEN ADMITTED AGAINST HIM AT TRIAL OVER A TIMELY OBJECTION, AND
THAT THIS EVIDENCE RESULTED IN THE REJECTION OF HIS ONLY DEFENSE TO THE
CHARGE.  THE APPLICATION WAS DENIED IN BOTH THE DISTRICT COURT AND THE
COURT OF APPEALS ON THE GROUND THAT IT HAD NOT BEEN RAISED ON APPEAL
FROM THE JUDGMENT OF CONVICTION AND "THAT A MOTION UNDER ^ 2255 CANNOT
BE USED IN LIEU OF AN APPEAL."  394 U.S., AT 223.  THIS COURT REVERSED,
HOWEVER, HOLDING THAT WHEN CONSTITUTIONAL CLAIMS ARE ASSERTED, POST
CONVICTION RELIEF CANNOT BE DENIED SOLELY ON THE GROUND THAT RELIEF
SHOULD HAVE BEEN SOUGHT BY APPEAL.  IBID. 

BUT THE COURT IN KAUFMAN WAS NOT DEALING WITH THE SORT OF EXPRESS
WAIVER PROVISION CONTAINED IN RULE 12(B) (2) WHICH SPECIFICALLY
PROVIDES FOR THE WAIVER OF A PARTICULAR KIND OF CONSTITUTIONAL CLAIM IF
IT BE NOT TIMELY ASSERTED.  THE CLAIM IN KAUFMAN WAS THAT THE
APPLICABLE PROVISIONS OF SEC. 2255 BY IMPLICATION FORBADE THE ASSERTION
OF A CONSTITUTIONAL CLAIM OF UNLAWFUL SEARCH AND SEIZURE WHERE THE
DEFENDANT FAILED TO ASSERT THE CLAIM ON APPEAL FROM THE JUDGMENT OF
CONVICTION.  /7/  SEE, E. G., SUNAL V. LARGE, 332 U.S. 174, 179
(1947).  THE COURT HELD THAT THE FEDERAL HABEAS STATUTE DID NOT
PRECLUDE THE GRANTING OF RELIEF ON SUCH A CLAIM SIMPLY BECAUSE IT HAD
NOT BEEN ASSERTED ON APPEAL, WHERE THERE WAS NO INDICATION OF A KNOWING
AND DELIBERATE BYPASS OF THE APPEAL PROCEDURE.  BUT HERE THE
GOVERNMENT'S CLAIM IS NOT THAT SEC. 2255 ITSELF LIMITS OR PRECLUDES THE
ASSERTION OF PETITIONER'S CLAIM, BUT THAT THE SEPARATE PROVISIONS OF
RULE 12(B)(2) DO SO.  KAUFMAN, THEREFORE, IS DISPOSITIVE ONLY IF THE
ABSENCE OF A STATUTORY PROVISION FOR WAIVER IN SEC. 2255 AND THE
FEDERAL HABEAS STATUTE BY IMPLICATION PRECLUDES THE APPLICATION TO POST
CONVICTION PROCEEDINGS OF THE EXPRESS WAIVER PROVISION FOUND IN THE
FEDERAL RULES OF CRIMINAL PROCEDURE. 

SHOTWELL HELD THAT A CLAIM OF UNCONSTITUTIONAL GRAND JURY
COMPOSITION RAISED FOUR YEARS AFTER CONVICTION, BUT WHILE THE APPEAL
PROCEEDINGS WERE STILL ALIVE, WAS GOVERNED BY RULE 12(B) (2).  BOTH THE
REASONS FOR THE RULE AND THE NORMAL RULES OF STATUTORY CONSTRUCTION
CLEARLY INDICATE THAT NO MORE LENIENT STANDARD OF WAIVER SHOULD APPLY
TO A CLAIM RAISED THREE YEARS AFTERS CONVICTION SIMPLY BECAUSE THE
CLAIM IS ASSERTED BY WAY OF COLLATERAL ATTACK RATHER THAN IN THE
CRIMINAL PROCEEDING ITSELF. 

[[HC241'(ORIGINAL DOCUMENT PAGE 241)' 

THE WAIVER PROVISIONS OF RULE 12(B) (2) ARE OPERATIVE ONLY WITH
RESPECT TO CLAIMS OF DEFECTS IN THE INSTITUTION OF CRIMINAL
PROCEEDINGS.  IF ITS TIME LIMITS ARE FOLLOWED, INQUIRY INTO AN ALLEGED
DEFECT MAY BE CONCLUDED AND, IF NECESSARY, CURED BEFORE THE COURT, THE
WITNESSES, AND THE PARTIES HAVE GONE TO THE BURDEN AND EXPENSE OF A
TRIAL.  IF DEFENDANTS WERE ALLOWED TO FLOUT ITS TIME LIMITATIONS, ON
THE OTHER HAND, THERE WOULD BE LITTLE INCENTIVE TO COMPLY WITH ITS
TERMS WHEN A SUCCESSFUL ATTACK MIGHT SIMPLY RESULT IN A NEW INDICTMENT
PRIOR TO TRIAL.  STRONG TACTICAL CONSIDERATIONS WOULD MILITATE IN FAVOR
OF DELAYING THE RAISING OF THE CLAIM IN HOPES OF AN ACQUITTAL, WITH THE
THOUGHT THAT IF THOSE HOPES DID NOT MATERIALIZE, THE CLAIM COULD BE
USED TO UPSET AN OTHERWISE VALID CONVICTION AT A TIME WHEN
REPROSECUTION MIGHT WELL BE DIFFICULT. 

RULE 12(B) (2) PROMULGATED BY THIS COURT AND, PURSUANT TO 18 U.S.C.
^ 3771, "ADOPTED" BY CONGRESS, GOVERNS BY ITS TERMS THE MANNER IN WHICH
THE CLAIMS OF DEFECTS IN THE INSTITUTION OF CRIMINAL PROCEEDINGS MAY BE
WAIVED.  SEE SINGER V. UNITED STATES, 380 U.S. 24, 37 (1965).  WERE WE
CONFRONTED WITH AN EXPRESS CONFLICT BETWEEN THE RULE AND A PRIOR
STATUTE, THE FORCE OF ^ 3771, PROVIDING THAT "(ALL LAWS IN CONFLICT
WITH SUCH RULES SHALL BE OF NO FURTHER FORCE OR EFFECT," IS SUCH THAT
THE PRIOR INCONSISTENT STATUTE WOULD BE DEEMED TO HAVE BEEN REPEALED. 
CF. SIBBACH V. WILSON & CO., 312 U.S. 1, 10 (1941).  THE FEDERAL RULES
OF CRIMINAL PROCEDURE DO NOT EX PROPRIO VIGORE GOVERN POST-CONVICTION
PROCEEDINGS, AND HAD CONGRESS IN ENACTING THE STATUTE GOVERNING FEDERAL
COLLATERAL RELIEF SPECIFICALLY THERE DEALT WITH THE ISSUE OF WAIVER, WE
WOULD BE FACED WITH A DIFFICULT QUESTION OF REPEAL BY IMPLICATION OF
SUCH A PROVISION BY THE LATER ENACTED RULES OF CRIMINAL PROCEDURE. 

[[HC242'(ORIGINAL DOCUMENT PAGE 242)'  BUT CONGRESS DID NOT DEAL
WITH THE QUESTION OF WAIVER IN THE FEDERAL COLLATERAL RELIEF STATUTES,
AND IN KAUFMAN THIS COURT HELD THAT, SINCE SEC. 2255 HAD NOT SPOKEN ON
THE SUBJECT OF WAIVER WITH RESPECT TO CLAIMS OF UNLAWFUL SEARCH AND
SEIZURE, A PARTICULAR DOCTRINE OF WAIVER WOULD BE APPLIED BY THIS COURT
IN INTERPRETING THE STATUTE. 

WE THINK IT INCONCEIVABLE THAT CONGRESS, HAVING IN THE CRIMINAL
PROCEEDING FORECLOSED THE RAISING OF A CLAIM SUCH AS THIS AFTER THE
COMMENCEMENT OF TRIAL IN THE ABSENCE OF A SHOWING OF "CAUSE" FOR RELIEF
FROM WAIVER, NONETHELESS INTENDED TO PERVERSELY NEGATE THE RULE'S
PURPOSE BY PERMITTING AN ENTIRELY DIFFERENT BUT MUCH MORE LIBERAL
REQUIREMENT OF WAIVER IN FEDERAL HABEAS PROCEEDINGS.  WE BELIEVE THAT
THE NECESSARY EFFECT OF THE CONGRESSIONAL ADOPTION OF RULE 12(B) (2) IS
TO PROVIDE THAT A CLAIM ONCE WAIVED PURSUANT TO THE RULE MAY NOT LATER
BE RESURRECTED, EITHER IN THE CRIMINAL PROCEEDINGS OR IN FEDERAL
HABEAS, IN THE ABSENCE OF THE SHOWING OF "CAUSE" WHICH THAT RULE
REQUIRES.  WE THEREFORE HOLD THAT THE WAIVER STANDARD EXPRESSED IN RULE
12(B) (2) GOVERNS AN UNTIMELY CLAIM OF GRAND JURY DISCRIMINATION, NOT
ONLY DURING THE CRIMINAL PROCEEDING, BUT ALSO LATER ON COLLATERAL
REVIEW.     OUR CONCLUSION IN THIS REGARD IS FURTHER BUTTRESSED BY THE
COURT'S OBSERVATION IN PARKER V. NORTH CAROLINA, 397 U.S. 790, 798
(1970), DECIDED THE YEAR AFTER KAUFMAN, THAT "(WHETHER THE QUESTION OF
RACIAL EXCLUSION IN THE SELECTION OF THE GRAND JURY IS OPEN IN A
FEDERAL HABEAS CORPUS ACTION WE NEED NOT DECIDE."  THE CONTEXT OF THE
COURT'S LANGUAGE MAKES IT APPARENT THAT THE QUESTION WAS FRAMED IN
TERMS OF WAIVER AND TIMELY ASSERTION OF SUCH A CLAIM IN STATE CRIMINAL
PROCEEDINGS.  BUT IF THE QUESTION WERE LEFT OPEN WITH RESPECT TO STATE
PROCEEDINGS, IT MUST HAVE BEEN AT LEAST PATENTLY OPEN WITH RESPECT TO
FEDERAL HABEAS REVIEW OF FEDERAL CONVICTIONS, WHERE CONGRESS IS THE
LAWGIVER BOTH AS TO THE PROCEDURAL RULES GOVERNING THE CRIMINAL TRIAL
AND THE PRINCIPLES GOVERNING COLLATERAL REVIEW. 

[[HC243'(ORIGINAL DOCUMENT PAGE 243)'

        II 

THE PRINCIPLES OF RULE 12 (B) (2), AS CONSTRUED IN SHOTWELL, ARE NOT
DIFFICULT TO APPLY TO THE FACTS OF THIS CASE.  PETITIONER ALLEGED THE
DEPRIVATION OF A SUBSTANTIAL CONSTITUTIONAL RIGHT, RECOGNIZED BY THIS
COURT AS APPLICABLE TO STATE CRIMINAL PROCEEDINGS FROM BUSH V.
KENTUCKY, 107 U.S. 110 (1883), THROUGH ALEXANDER V. LOUISIANA, 405 U.S.
625 (1972).  BUT HE FAILED TO ASSERT THE CLAIM UNTIL LONG AFTER HIS
TRIAL, VERDICT, SENTENCE, AND APPEAL HAD RUN THEIR COURSE.  IN FINDINGS
CHALLENGED ONLY HALF-HEARTEDLY HERE, THE DISTRICT COURT DETERMINED THAT
NO MOTION, ORAL OR OTHERWISE, RAISED THE ISSUE OF DISCRIMINATION IN THE
SELECTION OF THE GRAND JURORS PRIOR TO TRIAL.  THE COURT OF APPEALS
AFFIRMED, AND ON PETITION FOR REHEARING CONDUCTED ITS OWN SEARCH OF THE
RECORD IN A VAIN EFFORT TO SEE WHETHER THE FILES OR DOCKET ENTRIES IN
THE CASE SUPPORTED PETITIONER'S CONTENTION THAT HE HAD MADE SUCH A
MOTION.  WE WILL NOT DISTURB THE COORDINATE FINDINGS OF THESE TWO
COURTS ON A QUESTION SUCH AS THIS. 

THE WAIVER PROVISION OF THE RULE THEREFORE COMING INTO PLAY, THE
DISTRICT COURT HELD THAT THERE HAD BEEN NO "CAUSE SHOWN" WHICH WOULD
JUSTIFY RELIEF.  IT SAID: 

     "PETITIONER OFFERS NO PLAUSIBLE EXPLANATION OF HIS FAILURE TO

  TIMELY MAKE HIS OBJECTION TO THE COMPOSITION OF THE GRAND JURY. 

  THE METHOD OF SELECTING GRAND JURORS THEN IN USE WAS THE SAME

  SYSTEM EMPLOYED BY THIS COURT FOR YEARS.  NO REASON HAS BEEN

  SUGGESTED WHY PETITIONER OR HIS ATTORNEY COULD NOT HAVE

  ASCERTAINED ALL THE FACTS NECESSARY TO PRESENT THE OBJECTION TO

THE COURT PRIOR TO TRIAL.  THE SAME GRAND JURY THAT INDICTED

  PETITIONER ALSO INDICTED HIS TWO WHITE ACCOMPLICES. 

[[HC244'(ORIGINAL DOCUMENT PAGE 244)'

  THE CASE HAD NO RACIAL OVERTONES.  THE GOVERNMENT'S CASE AGAINST
PETITIONER WAS, ALTHOUGH

  LARGELY CIRCUMSTANTIAL, A STRONG ONE.  THERE WAS CERTAINLY
SUFFICIENT EVIDENCE AGAINST

  PETITIONER TO JUSTIFY A GRAND JURY IN DETERMINING THAT HE SHOULD
STAND TRIAL FOR THE OFFENSE

  WITH WHICH HE WAS CHARGED.  . .  PETITIONER HAS SHOWN NO CAUSE
WHY THE COURT SHOULD GRANT HIM

  RELIEF FROM HIS WAIVER OF THE OBJECTION TO THE COMPOSITION OF THE
GRAND JURY.  . ." 

IN DENYING THE RELIEF, THE COURT TOOK INTO CONSIDERATION THE
QUESTION OF PREJUDICE TO PETITIONER.  THIS APPROACH WAS APPROVED IN
SHOTWELL WHERE THE COURT STATED: 

"(WHERE, AS HERE, OBJECTION TO THE JURY SELECTION HAS NOT BEEN TIMELY
RAISED UNDER RULE 12(B) (2), IT IS ENTIRELY PROPER TO TAKE ABSENCE OF
PREJUDICE INTO ACCOUNT IN DETERMINING WHETHER A SUFFICIENT SHOWING HAS
BEEN MADE TO WARRANT RELIEF FROM THE EFFECT OF THAT RULE."  371 U.S.,
AT 363. 

PETITIONER SEEKS TO AVOID THIS ASPECT OF SHOTWELL BY ASSERTING THAT
THERE BOTH LOWER COURTS HAD FOUND THAT PETITIONERS WERE NOT PREJUDICED
IN ANY WAY BY THE ALLEGED ILLEGALITIES WHEREAS UNDER PETERS V. KIFF,
407 U.S. 493 (1972), PREJUDICE IS PRESUMED IN CASES WHERE THERE IS AN
ALLEGATION OF RACIAL DISCRIMINATION IN GRAND JURY COMPOSITION.  BUT
PETERS DEALT WITH WHETHER OR NOT A WHITE MAN HAD A SUBSTANTIVE
CONSTITUTIONAL RIGHT TO SET ASIDE HIS CONVICTION UPON PROOF THAT
NEGROES HAD BEEN SYSTEMATICALLY EXCLUDED FROM THE STATE GRAND AND PETIT
JURIES WHICH INDICTED AND TRIED HIM.  THREE JUSTICES DISSENTED FROM THE
COURT'S UPHOLDING OF SUCH A SUBSTANTIVE RIGHT ON THE GROUND THAT NO
PREJUDICE HAD BEEN SHOWN, AND THREE CONCURRED SEPARATELY IN THE
JUDGMENT.  BUT THE THREE OPINIONS DELIVERED IN PETERS, SUPRA, ALL
INDICATE A FOCUS ON THE EXISTENCE OF THE CONSTITUTIONAL RIGHT, RATHER
THAN ITS POSSIBLE LOSS THROUGH DELAY IN ASSERTING IT. 

[[HC245'(ORIGINAL DOCUMENT PAGE 245)'  THE PRESUMPTION OF PREJUDICE
WHICH SUPPORTS THE EXISTENCE OF THE RIGHT IS NOT INCONSISTENT WITH A
HOLDING THAT ACTUAL PREJUDICE MUST BE SHOWN IN ORDER TO OBTAIN RELIEF
FROM A STATUTORILY PROVIDED WAIVER FOR FAILURE TO ASSERT IT IN A TIMELY
MANNER. 

WE HOLD THAT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DENYING PETITIONER RELIEF FROM THE APPLICATION OF THE WAIVER PROVISION
OF RULE 12(B) (2), AND THAT HAVING CONCLUDED HE WAS NOT ENTITLED TO
SUCH RELIEF, IT PROPERLY DISMISSED HIS MOTION UNDER SEC. 2255. 
ACCORDINGLY, THE JUDGEMENT OF THE COURT OF APPEALS IS

              AFFIRMED. 

/1/  PETITIONER WAS REPRESENTED THROUGHOUT THE TRIAL BY COMPETENT,
COURT-APPOINTED COUNSEL, WHOSE ADVOCACY PROMPTED THE COURT OF APPEALS
TO COMPLIMENT HIM SAYING:  "WE HAVE RARELY WITNESSED A MORE THOROUGH OR
MORE UNSTINTED EXPENDITURE OF EFFORT BY ABLE COUNSEL ON BEHALF OF A
CLIENT."  409 F.2D 1095, 1101 (CA5 1969). 

/2/  THE USE OF THE "KEY MAN" SYSTEM WAS APPROVED IN SCALES V.
UNITED STATES, 367 U.S. 203, 259 (1961), AFFIRMING 260 F.2D 21, 44 - 46
(CA4 1958).  THE ADLOPTION OF THE JURY SELECTION AND SERVICE ACT OF
1968, 28 U.S.C. ^^ 1861 - 1869, HAS PRECLUDED ITS FURTHER USE. 

/3/  PETITIONER ALSO ALLEGED THAT A TIMELY ORAL MOTION IN OPEN COURT
PRIOR TO TRIAL WAS MADE PRESERVING FOR HIM THE RIGHT TO CONTEST THE
GRAND JURY ARRAY, AND THAT A LAW STUDENT WHO WAS RESEARCHING THE GRAND
JURY ARRAY WAS STOPPED FROM SEEING HIM. 

/4/  PETITIONER ATTEMPTS TO DISTINGUISH SHOTWELL ON THE GROUND THAT
THE CASE "INVOLVED LEGAL IRREGULARITIES WHICH DID NOT RISE TO THE
DIMENSION OF THE FUNDAMENTAL CONSTITUTIONAL RIGHT ASSERTED"  HEREIN. 
(BRIEF FOR PETITIONER 18.)  AT 362 - 363 OF THE COURT'S OPINION IN
SHOTWELL, HOWEVER, THE MAJORITY ACCEPTED PETITIONERS' ASSERTION OF
CONSTITUTIONAL DEPRIVATION AT FACE VALUE BEFORE REJECTING THEIR CLAIMS
ON THE BASIS OF RULE 12(B) (2). 

/5/  WE ARE COMFORTED IN THIS CONCLUSION BY THE CONCURRENCE OF ALL
BUT ONE OF THE COURTS OF APPEALS THAT HAVE CONSIDERED THE ISSUE.  SEE
MOORE V. UNITED STATES, 432 F.2D 730, 740 (CA3 1970) (EN BANC); JUELICH
V. HARRIS, 425 F.2D 814 (CA7 1970); UNITED STATES V. WILLIAMS, 421 F.2D
529, 532 (CA8 1970); BUSTILLO V. UNITED STATES 237 F.2D 97 (CA6 1956). 
CONTRA, FERNANDEZ V. MEIER, 408 F.2D 974 (CA9 1969). 

/6/  PETITIONER RELIES ON THE REASONING OF FERNANDEZ, SUPRA, IN
ARGUING THAT A DIFFERENT WAIVER RULE SHOULD APPLY IN ^ 2255
PROCEEDINGS.  IN THAT CASE, THE DEFENDANT ARGUED THAT THE EXCLUSION OF
SPANISH AMERICANS FROM HIS GRAND AND PETIT JURIES CONSTITUTED A
DEPRIVATION OF CONSTITUTIONAL RIGHT.  THE CLAIM WAS UNTIMELY RAISED AND
THE COURT OF APPEALS CONCEDED THAT FAILURE TO PRESENT IT AS PROVIDED IN
RULE 12(B) (2) RESULTED IN A WAIVER.  RELYING, HOWEVER, ON THIS COURT'S
DECISIONS IN FAY V. NOIA, 372 U.S. 391 (1963), AND SANDERS V. UNITED
STATES, 373 U.S. 1 (1963), THAT COURT HELD THAT COLLATERAL RELIEF COULD
BE DENIED UNDER ^ 2255 ONLY UPON A SHOWING OF A "KNOWING AND DELIBERATE
BY-PASS" OF A TIMELY OBJECTION.  PETITIONER CONCEDES THAT THE COURT
MISREAD SANDERS, SUPRA, BUT HE ARGUES THAT IT APPLIED THE CORRECT
WAIVER RULE.  ALTHOUGH WE FIND IT DIFFICULT TO CONCEPTUALIZE THE
APPLICATION OF ONE WAIVER RULE FOR PURPOSES OF FEDERAL APPEAL AND
ANOTHER FOR PURPOSES OF FEDERAL HABEAS CORPUS, WE WILL NONETHELESS GIVE
CONSIDERATION TO PETITIONER'S CLAIM THAT THE CASES INTERPRETING THE
FEDERAL HABEAS CORPUS STATUTE SET THE APPLICABLE STANDARD. 

/7/  THE COURT IN KAUFMAN MADE REFERENCE TO THE POSSIBILITY OF THE
DENIAL OF ^ 2255 RELIEF AS A RESULT OF A DELIBERATE BYPASS OF THE
SUPPRESSION PROCEDURES ESTABLISHED IN FED. RULE CRIM. PROC. 41 (E). 
KAUFMAN V. UNITED STATES, 394 U.S. 217, 227 N. 8 (1969).  BUT IT HAD NO
OCCASION TO CONSIDER THAT RULE'S EFFECTS ON ^ 2255 MOTIONS SINCE THERE
"(APPOINTED COUNSEL HAD OBJECTED AT TRIAL TO THE ADMISSION OF CERTAIN
EVIDENCE ON GROUNDS OF UNLAWFUL SEARCH AND SEIZURE,"  ID., AT 220 N. 3,
AND THE DISTRICT COURT'S RATIONALE FOR DENYING RELIEF WAS THAT "THIS
MATTER WAS NOT ASSIGNED AS ERROR ON KAUFMAN'S APPEAL FROM CONVICTION
AND IS NOT AVAILABLE AS A GROUND FOR COLLATERAL ATTACK . . ."  SEE ID.,
AT 219. 

[[DOP 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

THE OPINION OF THE COURT OBSCURES THE ONLY SENSIBLE ARGUMENT FOR THE
RESULT THE MAJORITY REACHES.  I AM NOT PERSUADED BY THAT ARGUMENT, AND
FIND THE MAJORITY OPINION CLEARLY DEFECTIVE.  I BELIEVE THAT RULE 12(B)
(2), PROPERLY INTERPRETED IN THE LIGHT OF THE PURPOSES IT SERVES AND
THE PURPOSES SERVED BY MAKING AVAILABLE COLLATERAL RELIEF FROM CRIMINAL
CONVICTIONS, DOES NOT BAR A PRISONER FROM CLAIMING THAT THE GRAND JURY
THAT INDICTED HIM WAS UNCONSTITUTIONALLY COMPOSED, IF HE SHOWS THAT HIS
FAILURE TO MAKE THAT CLAIM BEFORE TRIAL WAS NOT "AN INTENTIONAL
RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE,"  JOHNSON
V. ZERBST, 304 U.S. 458, 464 (1938).  BUT FIRST THERE IS SOME
UNDERBRUSH TO BE CLEARED AWAY. 

DAVIS CHALLENGED THE "KEY MAN" SYSTEM OF SELECTION OF GRAND JURORS
USED IN THE NORTHERN DISTRICT OF MISSISSIPPI IN 1968, WHEN HE WAS
INDICTED, BECAUSE IT WAS IMPLEMENTED TO EXCLUDE QUALIFIED NEGROES FROM
THE GRAND JURY.  /1/  CF. GLASSER V. UNITED STATES, 315 U.S. 60, 85 -
87 (1942); DOW V. CARNEGIE-ILLINOIS STEEL CORP., 224 F.2D 414 (CA3
1955).  THE COURT NOTES THAT THE USE OF THE "KEY MAN"  SYSTEM WAS
APPROVED BY THIS COURT IN SCALES V. UNITED STATES, 367 U.S. 203
(1961).  /2/  THIS OBSERVATION IS BOTH IRRELEVANT AND MISLEADING.  IT
IS IRRELEVANT BECAUSE THE COURT'S HOLDING TODAY BARS PRISONERS FROM
RAISING MERITORIOUS CLAIMS NOT RAISED BEFORE TRIAL.  /3/  A PRISONER
LIKE DAVIS COULD NOT CONTEND AFTER TODAY'S DECISION, FOR EXAMPLE, THAT
FEDERAL JURY COMMISSIONERS HAD SIMPLY REFUSED TO PLACE THE NAMES OF
NEGROES IN THE JURY BOX USED IN 1968.  THAT, OF COURSE, WOULD HAVE BEEN
UNCONSTITUTIONAL.  SEE ALEXANDER V. LOUISIANA, 405 U.S. 625, 628 - 629
(1972); HILL V. TEXAS, 316 U.S. 400 (1942).  /4/  THE COURT'S
OBSERVATION IS MISLEADING BECAUSE IN SCALES THE COURT SAID ONLY THAT
"NO IMPROPRIETY IN THE METHOD OF CHOOSING GRAND JURORS HAS BEEN SHOWN,"
AS TO A GRAND JURY CONVENED IN THE MIDDLE DISTRICT OF NORTH CAROLINA
IN 1955, 367 U.S., AT 206 N. 2, 259.  I DOUBT THAT THE COURT MEANT TO
SUGGEST THAT THE USE OF A "KEY MAN" SYSTEM WAS IMMUNE FROM
CONSTITUTIONAL ATTACK.  INDEED, CARTER V. JURY COMM'N, 396 U.S. 320
(1970), AND THE CASES THERE CITED, SHOW THAT SYSTEMS ESSENTIALLY THE
SAME AS A "KEY MAN" SYSTEM MAY BE ADMINISTERED IN AN UNCONSTITUTIONAL
MANNER.  /5/ 

TO THE EXTENT THAT OUR PRIOR DECISIONS SPEAK TO THE ISSUE IN THIS
CASE, THE COURT'S DECISION TODAY SEEMS INCONSISTENT WITH THEM.  THE
COURT PURPORTS TO DISTINGUISH KAUFMAN V. UNITED STATES, 394 U.S. 217
(1969), FOR EXAMPLE, ON THE GROUND THAT WE WERE THERE "NOT DEALING WITH
THE SORT OF EXPRESS WAIVER PROVISION CONTAINED IN RULE 12(B) (2)."  I
HAD NOT THOUGHT THAT WORDS WERE QUITE SO MAGICAL AS THAT DISTINCTION
MAKES THEM.  IT IS TRUE, OF COURSE, THAT RULE 12(B) (2) PROVIDES THAT
"(DEFENSES AND OBJECTIONS BASED ON DEFECTS IN THE INSTITUTION OF THE
PROSECUTION . . . MAY BE RAISED ONLY BY MOTION BEFORE TRIAL.  . .
FAILURE TO PRESENT ANY SUCH DEFENSE OR OBJECTION AS HEREIN PROVIDED
CONSTITUTES A WAIVER THEREOF, BUT THE COURT FOR CAUSE SHOWN MAY GRANT
RELIEF FROM THE WAIVER."  KAUFMAN INVOLVED A CLAIM THAT THE PRISONER
WAS CONVICTED ON THE BASIS OF EVIDENCE OBTAINED IN AN UNCONSITUTIONAL
SEARCH.  AND RULE 41(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
PROVIDES THAT A MOTION TO SUPPRESS THE USE OF THE EVIDENCE OBTAINED IN
AN UNLAWFUL SEARCH "SHALL BE MADE BEFORE TRIAL OR HEARING UNLESS
OPPORTUNITY THEREFOR DID NOT EXIST OR THE DEFENDANT WAS NOT AWARE OF
THE GROUNDS FOR THE MOTION, BUT THE COURT IN ITS DISCRETION MAY
ENTERTAIN THE MOTION AT THE TRIAL OR HEARING." 

IN KAUFMAN, WE INDICATED THAT THE FAILURE TO MAKE A TIMELY MOTION TO
SUPPRESS WOULD PERMIT THE ^ 2255 COURT TO DENY RELIEF WHERE THAT
FAILURE WAS A DELIBERATE BYPASS OF THE ORDERLY PROCEDURES SET OUT IN
THE RULES OF CRIMINAL PROCEDURE.  394 U.S., AT 227 N. 8.  RELIEF UNDER
^ 2255 WOULD BE BARRED ONLY IF THERE HAD BEEN AN INTENTIONAL
RELINQUISHMENT OF A KNOWN RIGHT.  /6/  RULE 41E) DOES NOT USE THE
APPARENTLY CRUCIAL WORD "WAIVER."  BUT ITS STRUCTURE IS BASICALLY THE
SAME AS THAT OF RULE 12(B) (2):  THE MOTIONS SHALL BE MADE AT A CERTAIN
TIME, AND FAILURE TO MAKE THEM MAY BE EXCUSED FOR CAUSE.  NOTHING IN
THE OPINION OF THE COURT SUGGESTS WHY THE USE OF THE WORD "WAIVER"
MAKES SUCH A DIFFERENCE, SO THAT KAUFMAN PERMITS CONSIDERATION OF
CLAIMS NOT MADE IN THE TIME SET BY RULE 41(E) IN A ^ 2255 PROCEEDING,
WHILE CLAIMS NOT MADE IN THE TIME SET BY RULE 12(B) (2) MAY NOT BE
CONSIDERED.  THERE IS A CLEAR LINE OF CASES IN THE COURTS OF APPEALS
HOLDING THAT FAILURE TO MAKE A TIMELY MOTION TO SUPPRESS EVIDENCE BARS
AN ATTEMPT TO RAISE THE FOURTH AMENDMENT ISSUE ON APPEAL.  SEE, E. G.,
UNITED STATES V. ELLIS, 461 F.2D 962 (CA2 1972); UNITED STATES V.
VOLKELL, 251 F.2D 333 (CA2 1958), AND CASES CITED THEREIN.  CERTAINLY
THE USE OF THE WORD "WAIVER" IN RULE 12(B) (2) DOES NOT MAKE ANY
CLEARER THE NOTICE TO ATTORNEYS THAT THE FAILURE TO MAKE A TIMELY CLAIM
ABOUT THE COMPOSITION OF THE GRAND JURY WILL BAR LATER ATTEMPTS TO
RAISE THAT CLAIM.     IN LIGHT OF THE SIMILARITY BETWEEN KAUFMAN AND
THIS CASE, THE ONLY WAY THAT I CAN UNDERSTAND THE COURT'S ACTION IS TO
ASSUME THAT THE COURT BELIEVES THERE ARE STRONG REASONS OF POLICY
JUSTIFYING "AN AIRTIGHT SYSTEM OF FORFEITURES,"  FAY V. NOIA, 372 U.S.
391, 432 (1963), WITH RESPECT TO A CLAIM THAT THE GRAND JURY WAS
UNCONSTITUTIONALLY COMPOSED, REASONS THAT ARE NOT APPLICABLE TO A CLAIM
THAT EVIDENCE UNCONSTITUTIONALLY SEIZED WAS USED AT TRIAL.  ALL THAT I
CAN FIND IN THE OPINION OF THE COURT, HOWEVER, IS ONE SENTENCE
REFERRING TO SUCH POLICY CONSIDERATIONS:  "STRONG TACTICAL
CONSIDERATIONS WOULD MILITATE IN FAVOR OF DELAYING THE RAISING OF THE
CLAIM IN HOPES OF AN ACQUITTAL, WITH THE THOUGHT THAT IF THOSE HOPES
DID NOT MATERIALIZE, THE CLAIM COULD BE USED TO UPSET AN OTHERWISE
VALID CONVICTION AT A TIME WHEN REPROSECUTION MIGHT WELL BE
DIFFICULT."  /7/ 

THAT, I SUBMIT, IS ONCE AGAIN BOTH IRRELEVANT AND MISLEADING.  IT IS
MISLEADING BECAUSE IT RELIES ON A MECHANICAL INVOCATION OF THE
DIFFICULTIES OF REPROSECUTION IN A SETTING WHERE THOSE DIFFICULTIES ARE
PATENTLY QUITE SMALL.  WHEN EVIDENCE USED AT TRIAL IS ORDERED
SUPPRESSED AND A RETRIAL REQUIRED, THE PROSECUTION MUST RECONSTRUCT ITS
CASE WITH A NEW FOCUS; IT MAY HAVE TO GATHER NEW EVIDENCE, OR FIND NEW
WITNESSES, OR IT MAY HAVE TO ELICIT NEW TESTIMONY FROM WITNESSES WHO
TESTIFIED BEFORE.  IN SUCH A SETTING, THERE MAY WELL BE DIFFICULTIES IN
REPROSECUTION.  BUT WHEN A NEW TRIAL IS REQUIRED SO THAT AN INDICTMENT
MAY BE RETURNED BY A PROPERLY CONSTITUTED GRAND JURY, THOSE
DIFFICULTIES SIMPLY DO NOT ARISE.  NOTHING IN THE PREVIOUS TRIAL MUST
BE REDONE; INDEED, THE PROSECUTION COULD PRESENT ITS ENTIRE CASE
THROUGH THE TESTIMONY GIVEN AT THE PREVIOUS TRIAL, IF IT SHOWED THAT
ITS WITNESSES WERE NOW UNAVAILABLE AND THUS THAT THE ALLEGED
DIFFICULTIES IN REPROSECUTION WERE REAL.  CF. MATTOX V. UNITED STATES,
156 U.S. 237 (1895).  ALL THAT THE PROSECUTION MIGHT LOSE IS THE
ENHANCEMENT OF CREDIBILITY, IF ANY, THAT THE ACTUAL PRESENCE OF THE
WITNESSES COULD LEND THEIR TESTIMONY. 

THE COURT'S REFERENCE TO "(STRONG TACTICAL CONSIDERATIONS" IS
IRRELEVANT BECAUSE A PRISONER WOULD PROPERLY BE HELD TO HAVE
INTENTIONALLY RELINQUISHED HIS RIGHT TO RAISE THE CONSTITUTIONAL CLAIM
IF HE FAILED TO RAISE IT FOR TACTICAL REASONS.  THE ONLY ISSUE IN THIS
CASE IS WHETHER ONE WHO CLAIMS THAT HE DID NOT INTENTIONALLY RELINQUISH
A KNOWN RIGHT IS TO BE AFFORDED THE OPPORTUNITY TO PROVE THAT CLAIM, AS
A STEP TOWARD ESTABLISHING THAT HIS RIGHTS WERE IN FACT INFRINGED. 
SAYING THAT DAVIS, WHO MAKES JUST SUCH A CLAIM, CANNOT BE ALLOWED TO
PROVE IT BECAUSE SOME OTHER PRISIONERS MIGHT HAVE MADE A TACTICAL
CHOICE NOT TO RAISE THE UNDERLYING ISSUE, IS JUST NOT RESPONSIVE TO HIS
ARGUMENT.  /8/ 

THE SOLICITOR GENERAL HAS URGED ON US POLICY CONSIDERATIONS THAT AT
LEAST BEAR ON THE DECISION, WHETHER THE GOVERNMENT'S INTEREST IN
ENFORCING AN AIRTIGHT SYSTEM OF FORFEITURES WITH RESPECT TO CLAIMS
GOING TO THE COMPOSITION OF THE GRAND JURY IS GREATER THAN ITS INTEREST
IN ENFORCING A SIMILAR SYSTEM WITH RESPECT TO CLAIMS GOING TO THE
ADMISSION OF ILLEGALLY SEIZED EVIDENCE.  HE ARGUES THAT THE CRUCIAL
DIFFERENCE LIES IN THE EASE WITH WHICH THE PROSECUTION CAN RECONSTRUCT
ITS CASE ON A PROPER BASIS.  IT IS RELATIVELY EASY, HE SAYS, TO REMEDY
THE RETURN OF AN INDICTMENT BY AN UNCONSTITUTIONALLY COMPOSED GRAND
JURY.  ALL THAT MUST BE DONE IS TO CONVENE A PROPERLY COMPOSED GRAND
JURY.  BUT IF THE RESULT OF A FINDING OF ERROR IS TO WASH OUT NOT JUST
THE INDICTMENT BUT ALSO AN ENTIRE TRIAL, THAT ERROR IS VERY COSTLY TO
LEGITIMATE INTERESTS IN ECONOMY.  THUS, FAILURE TO RAISE A CLAIM
RELATING TO THE COMPOSITION OF THE GRAND JURY PRIOR TO TRIAL MAY ENTAIL
LARGE COSTS.  IN CONTRAST, THE SOLICITOR GENERAL SUGGESTS, FAILURE TO
RAISE A CLAIM BEFORE TRIAL RELATING TO THE USE OF THE FRUITS OF AN
UNCONSTITUTIONAL SEARCH IS NOT QUITE SO COSTLY.  WHENEVER THE FINDING
THAT THE SEARCH WAS UNLAWFUL IS MADE, THE PROSECUTION WILL HAVE TO
RECONSTRUCT ITS CASE RATHER SUBSTANTIALLY.  NEW WITNESSES MAY HAVE TO
BE FOUND, AND MORE EMPHASIS MUST BE PLACED UPON THE TESTIMONY OF
WITNESSES THAT IS NOT TAINTED BY THE SEARCH.  THERE IS, ON THIS VIEW, A
VERY IMPORTANT REASON FOR ENFORCING AN AIRTIGHT SYSTEM OF FORECLOSURES
WHERE THE CLAIM IS THAT AN EASILY REMEDIED ERROR HAS BEEN MADE -- IT IS
SIMPLY MUCH MORE COSTLY TO REQUIRE RETRIALS IN THOSE CASES. 

THAT ARGUMENT UNDOUBTEDLY HAS SOME FORCE.  BUT IT ALSO GOES TOO FAR,
FOR IT IS INCONSISTENT WITH THE POWER GIVEN TO REVERSE A CONVICTION ON
THE BASIS OF PLAIN ERROR TO WHICH NO OBJECTION HAD BEEN MADE.  FED.
RULE CRIM. PROC. 52(B).  AN IMPROPER ARGUMENT BY A PROSECUTOR IN HIS
CLOSING ARGUMENT MAY BE PLAIN ERROR, FOR EXAMPLE.  DOTY V. UNITED
STATES, 416 F.2D 887, 890 - 891 (CA10 1968), AND CASES CITED.  YET
TIMELY OBJECTION MIGHT HAVE CUT OFF THE IMPROPER ARGUMENT AT A POINT
WHEN AN ADMONITION TO THE JURY TO DISREGARD THEM WOULD ADEQUATELY
PROTECT THE DEFENDANT'S RIGHTS.  A SYSTEM THAT PERMITS REVERSAL ON THE
GROUND OF PLAIN ERROR TO WHICH NO OBJECTION HAD BEEN MADE BUT PROHIBITS
REVERSAL ON THE GROUND THAT TIMELY OBJECTION TO THE COMPOSITION OF THE
GRAND JURY HAD NOT BEEN MADE BY A DEFENDANT WHO DID NOT INTENTIONALLY
RELINQUISH HIS RIGHT TO OBJECT, AND THAT JUSTIFIES THE LATTER RULE IN
TERMS OF GOVERNMENTAL INTERESTS IN ECONOMY, SEEMS TO ME PERVERSE. 

THE SOLICITOR GENERAL'S ARGUMENT IS UNPERSUASIVE, ULTIMATELY, NOT
ALONE FOR THE REASONS JUST GIVEN, BUT ALSO BECAUSE THE LEGITIMATE
GOVERNMENTAL INTERESTS THAT SUPPORT A STRICT SYSTEM OF FORFEITURES WITH
RESPECT TO CLAIMS ABOUT THE COMPOSITION OF THE GRAND JURY ARE, IN MY
VIEW, OUTWEIGHED BY OTHER IMPORTANT PUBLIC INTERESTS.  /9/  FIRST, AND
MOST IMPORTANT IN THIS CASE, WE MUST ASSURE THAT NO ONE IS EXCLUDED
FROM PARTICIPATION IN IMPORTANT DEMOCRATIC INSTITUTIONS LIKE THE GRAND
JURY BECAUSE OF RACE.  SECOND, CONVICTED OFFENDERS WILL BE MORE
AMENABLE TO REHABILITATION WHEN THEY KNOW THAT ALL THEIR CLAIMS OF
UNFAIRNESS HAVE BEEN CONSIDERED, UNLESS THEY DELIBERATELY REFRAINED
FROM RAISING THEM AT AN EARLIER POINT.  FINALLY, PROVIDING THE
OPPORTUNITY TO RAISE SUCH CLAIMS AT ANY POINT IN THE PROCESS, SO LONG
AS THE OFFENDER DID NOT WILLINGLY CONCEAL THEM FOR STRATEGIC REASONS,
HELPS GUARANTEE THAT THE PROCESS OF CRIMINAL JUSTICE IS FAIR, AND DOES
SO WITHOUT BENEFITING SOMEONE WHO WAS DELINQUENT IN HIS ATTEMPTS TO
PRESERVE THE FAIRNESS OF THE PROCESS. 

"FOR OVER 90 YEARS, IT HAS BEEN ESTABLISHED THAT A CRIMINAL
CONVICTION OF A NEGRO CANNOT STAND UNDER THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT IF IT IS BASED ON AN INDICTMENT OF A GRAND
JURY FROM WHICH NEGROES WERE EXCLUDED BY REASON OF THEIR RACE. 
STRAUDER V. WEST VIRGINIA, 100 U.S. 303 (1880); NEAL V. DELAWARE, 103
U.S. 370 (1881),"  ALEXANDER V. LOUISIANA, 405 U.S. 625, 628 (1972). 
"PEOPLE EXCLUDED FROM JURIES BECAUSE OF THEIR RACE ARE AS MUCH
AGGRIEVED AS THOSE INDICTED AND TRIED BY JURIES CHOSEN UNDER A SYSTEM
OF RACIAL EXCLUSION."  CARTER V. JURY COMM'N, 396 U.S., AT 329.  WHEN
IT FULFILLS ITS PROPER FUNCTION, THE GRAND JURY IS A CENTRAL
INSTITUTION OF OUR DEMOCRACY, RESTRAINING THE DISCRETION OF PROSECUTORS
TO INSTITUTE CRIMINAL PROCEEDINGS.  CF. UNITED STATES V. DIONISIO, 410
U.S., AT 17 (1973); WOOD V. GEORGIA, 370 U.S. 375, 390 )1962). 
ALTHOUGH THERE MAY BE OTHER WAYS TO VINDICATE THE RIGHT OF EVERY
QUALIFIED CITIZEN TO PARTICIPATE IN THE GRAND JURY WITHOUT
DISCRIMINATION BASED ON RACE, CARTER V. JURY COMM'N, SUPRA, THIS COURT
HAS CONSISTENTLY ALLOWED CRIMINAL DEFENDANTS TO ASSERT THE RIGHTS OF
EXCLUDED GROUPS WITHOUT REQUIRING THAT THEY SHOW PREJUDICE IN THE
PARTICULAR CASE.  BALLARD V. UNITED STATES, 329 U.S. 187, 195 (1946). 
THIS IS CONTRARY TO THE GENERAL RULE THAT NO ONE HAS STANDING TO ASSERT
THE RIGHTS OF OTHERS, MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163, 166 -
167 (1972).  IT IS JUSTIFIED BY THE IMPORTANCE OF ASSURING EVERY
OPPORTUNITY TO RAISE CLAIMS OF UNCONSTITUTIONAL DISCRIMINATION IN THE
SELECTION OF GRAND JURIES.  THAT PRINCIPLE ALONE, IN MY VIEW, WOULD
WARRANT A VERY RESTRICTIVE VIEW OF ATTEMPTS TO FORECLOSE THE
OPPORTUNITY TO RAISE SUCH CLAIMS. 

BUT THERE IS MORE.  OFFENDERS WHO HAVE BEEN INDICTED BY
UNCONSTITUTIONALLY COMPOSED GRAND JURIES UNDENIABLY ARE AGGRIEVED. 
THERE IS A PARAMOUNT PUBLIC INTEREST THAT THE PROCESS OF CRIMINAL
JUSTICE BE FAIR.  AS WE SAID IN KAUFMAN V. UNITED STATES, 394 U.S., AT
226, "THE PROVISION OF FEDERAL COLLATERAL REMEDIES RESTS . . . UPON A
RECOGNITION THAT ADEQUATE PROTECTION OF CONSITUTIONAL RIGHTS RELATING
TO THE CRIMINAL TRIAL PROCESS REQUIRES THE CONTINUING AVAILABILITY OF A
MECHANISM FOR RELIEF."  THE FUNCTION OF COLLATERAL RELIEF "HAS BEEN TO
PROVIDE A PROMPT AND EFFICACIOUS REMEDY FOR WHATEVER SOCIETY DEEMS TO
BE INTOLERABLE RESTRAINTS.  ITS ROOT PRINCIPLE IS THAT IN A CIVILIZED
SOCIETY, GOVERNMENT MUST ALWAYS BE ACCOUNTABLE TO THE JUDICIARY FOR A
MAN'S IMPRISONMENT:  IF THE IMPRISONMENT CANNOT BE SHOWN TO CONFORM
WITH THE FUNDAMENTAL REQUIREMENTS OF LAW, THE INDIVIDUAL IS ENTITLED TO
HIS IMMEDIATE RELEASE."  FAY V. MOIA, 372 U.S., AT 401 - 402 (EMPHASIS
ADDED).  THE TRADITIONAL SCOPE OF COLLATERAL RELIEF REQUIRES, AGAIN,
THAT PRISONERS BE AFFORDED THE BROADEST POSSIBLE OPPORTUNITY TO PRESENT
CLAIMS THAT THEIR DETENTION IS THE RESULT OF AN UNCONSTITUTIONAL
PROCEDURE.  /10/ 

I DO NOT DENY THAT THERE IS AN INTEREST IN ENFORCING COMPLIANCE WITH
REASONABLE PROCEDURAL REQUIREMENTS BY A SYSTEM OF FORFEITURES, SO THAT
CLAIMS WILL BE RAISED AT A TIME WHEN THEY MAY EASILY BE DETERMINED AND
NECESSARY CORRECTIVE ACTION TAKEN.  BUT I DO NOT BELIEVE THAT THE
SYSTEM OF FORFEITURES MUST BE SO COMPREHENSIVE AND RIGID THAT A PERSON
MAY NOT RAISE A CLAIM OF DISCRIMINATION IN THE SELECTION OF THE GRAND
JURY EVEN THOUGH HE MADE NO DELIBERATE, INFORMED CHOICE TO FORGO THE
CLAIM.  SUCH A SYSTEM TOO GRIEVOUSLY AFFECTS OTHER IMPORTANT
INTERESTS. 

WITH THESE PRINCIPLES IN MIND, THE RESOLUTION OF THIS CASE IS NOT
DIFFICULT.  RULE 12(B) (2) PROVIDES THAT "THE COURT FOR CAUSE SHOWN MAY
GRANT RELIEF FROM THE WAIVER."  I WOULD HOLD THAT, WHEN A PRISONER
SHOWS THAT HIS FAILURE TO RAISE A CLAIM OF DISCRIMINATION IN THE
SELECTION OF THE GRAND JURY WAS NOT AN INTENTIONAL RELINQUISHMENT OF A
KNOWN RIGHT, HE HAS SHOWN CAUSE FOR RELIEF FROM THE WAIVER.  /11/  THE
PRIOR CASES, WHICH RULE 12(B) (2) IS SAID TO HAVE CONTINUED, DID NOT
EXAMINE IN ANY DETAIL THE CIRCUMSTANCES IN WHICH FAILURE, TO OBJECT WAS
HELD TO CONSTITUTE A WAIVER.  SEE, E. G., UNITED STATES V. GALE, 109
U.S. 65 (1883); IN RE WILSON, 140 U.S. 575 (1891).  CF. KOHL V.
LEHLBACK, 160 U.S. 293 (1895).  IT IS CLEAR THAT IN NONE OF THOSE CASES
DID THE PRISONER SHOW THAT HIS FAILURE TO OBJECT WAS NOT AN INTENTIONAL
RELINQUISHMENT OF A KNOWN RIGHT.  /12/ 

SHOTWELL MFG. CO. V. UNITED STATES, 371 U.S. 340 (1963), DOES NOT
REFLECT A CONTRARY INTERPRETATION OF RULE 12(B) (2).  THERE A
CORPORATION AND TWO OF THE OFFICERS WERE INDICTED FOR ATTEMPTED INCOME
TAX EVASION.  FOUR YEARS AFTER TRIAL, THEY ATTACKED THE COMPOSITION OF
THE GRAND AND PETIT JURIES.  THEY CONTENDED THAT THERE WAS NEWLY
DISCOVERED EVIDENCE THAT THE CLERK OF THE DISTRICT COURT HAD FAILED TO
USE A METHOD OF SELECTING GRAND JURORS DESIGNED TO SECURE A CROSS
KNOWN OF THEIR RIGHT TO BE INDICTED BY A REPRESENTATIVE GRAND JURY. 
CLEARLY, TO ESTABLISH THAT THAT RIGHT HAD BEEN INFRINGED, THEY HAD TO
FIND EVIDENCE RELATING TO THE METHOD OF SELECTION.  THE DISTRICT COURT
FOUND THAT SUCH EVIDENCE WAS "NOTORIOUS AND AVAILABLE TO PETITIONERS IN
THE EXERCISE OF DUE DILIGENCE BEFORE THE TRIAL."  ID., AT 363.  I HAVE
LITTLE DIFFICULTY IN SAYING THAT, WHERE ONE MUST PRESENT EVIDENCE IN
ORDER TO SUPPORT A CONSTITUTIONAL CLAIM, THE FAILURE TO EXERCISE DUE
DILIGENCE IN SEARCHING FOR THAT EVIDENCE IS A DELIBERATE RELINQUISHMENT
OF THAT CLAIM. 

THE INTERPRETATION I WOULD GIVE TO "GOOD CAUSE" IS SUPPORTED,
FINALLY, BY THIS COURT'S INSISTENCE THAT ACQUIESCENCE IN THE LOSS OF
CONSITUTIONAL RIGHTS IS NOT LIGHTLY TO BE ASSUMED.  SEE JOHNSON V.
ZERBST, 304 U.S. 458, 464 (1938); AETNA INSURANCE CO. V. KENNEDY, 301
U.S. 389, 393 (1937), AND CASES CITED THEREIN AT N. 2.  IT IS WELL
ESTABLISHED THAT A PROCEDURAL RULE THAT UNREASONABLY PRECLUDES THE
VINDICATION OF CONSTITUTIONAL RIGHTS ITSELF RAISES SERIOUS
CONSTITUTIONAL QUESTIONS.  SEE, E. G., REECE V. GEORGIA, 350 U.S. 85
(1955); DAVIS V. WECHSLER, 263 U.S. 22 (1923); WILLIAMS V. GEORGIA, 349
U.S. 375, 399 (1955) (CLARK, J., DISSENTING).  IN JOHNSON V. ZERBST,
SUPRA, THIS COURT ADOPTED A DEFINITION OF WAIVER THAT CAN BE APPLIED TO
SERVE ALL VALID INTERESTS IN BARRING UNTIMELY ASSERTIONS OF
CONSTITUTIONAL RIGHTS WHILE NOT PRECLUDING CLAIMS BY DEFENDANTS WHO
HAVE NOT ABUSED THE PROCEDURAL SYSTEM.  NO CONVINCING REASONS HAVE BEEN
ADVANCED TO ADOPT A MORE RESTRICTIVE DEFINITION OF WAIVER IN THIS
CASE.  IF DAVIS DID NOT INTENTIONALLY RELINQUISH A KNOWN RIGHT, I DO
NOT SEE ANY VALID INTEREST IN KEEPING HIM FROM ASSERTING THAT RIGHT IN
THIS ^ 2255 ACTION. 

DAVIS ALLEGED IN HIS MOTION FOR COLLATERAL RELIEF THAT "HE HAD NOT
WAIVED NOR ABANDONED THIS RIGHT TO CONTEST THE GRAND JURY ARRAY."  APP.
8.  THIS IS ENOUGH, IN A MOTION SUBMITTED BY A PRISONER UNAIDED BY
COUNSEL, TO CONSTITUTE AN ALLEGATION THAT HE HAD NOT INTENTIONALLY
RELINQUISHED A KNOWN RIGHT.  CF. HAINES V. KERNER, 404 U.S. 519
(1972).  IT IS A FACTUAL ALLEGATION NOT REFUTED BY THE RECORD IN THE
CASE, 28 U.S.C. ^ 2255, AND DAVIS SHOULD HAVE AN OPPORTUNITY TO PROVE
THIS ALLEGATION.  I WOULD THEREFORE REVERSE THE JUDGMENT BELOW. 
[[DFN 

/1/  DAVIS ALLEGED, IN PART: 

"(B) THAT THE JURY COMMISSIONER AND CLERK OF COURT FOR THE NORTHERN
DISTRICT OF MISSISSIPPI FOR THE PAST 20 YEARS IMPLEMENTING THE 'KEYMAN'
AND 'SELECTORS,' SYSTEM CAUSE NOUGHT TO TOKEN IN THEIR SELECTION OF
PROSPECTIVE QUALIFYING NEGRO JURYMEN BECAUSE OF THEIR RACE AND COLOR IN
VIOLATION OF SECTION 1863. 

"(C) THAT THE NORTHERN DISTRICT COURT HAS BY ITS AFFIRMATIVE ACTION
TAKEN FOR THE PAST 20 YEARS HAS ACQUIESCED TO SYSTEMATICALLY,
PURPOSEFULLY, UNLAWFULLY AND UNCONSTITUTIONALLY EXCLUDED THE
PROSPECTIVE QUALIFIED RESIDENT NEGROES FROM THE GRAND JURY BOX IN
VIOLATION OF SECTION 1864. 

(D) THAT THE PETITIONER BEING A MEMBER OF THE NEGRO RACE HAS BEEN
PREJUDICED BY THE AFORESAID VIOLATION CAUSED BY THE VIOLATORS IN
CARRYING OUT THEIR DUTIES, AND HAS DENIED PETITIONER HIS CONSTITUTIONAL
RIGHT, GUARANTEED TO HIM BY THE SIXTH AMENDMENT, THE RIGHT TO A FAIR
CROSS-SECTION OF THE COMMUNITY."  APP. 7. 

/2/  UNDER A "KEY MAN" SYSTEM, JURY COMMISSIONERS ASK PERSONS WHO
ARE THOUGHT TO HAVE WIDE CONTACTS IN THE COMMUNITY TO SUPPLY THE NAMES
OF PROSPECTIVE JURORS. 

/3/  SIMILARLY, THE JURY SELECTION AND SERVICE ACT OF 1968, 28
U.S.C. ^^ 1861 - 1869, CAN BE ADMINISTERED IN AN UNCONSTITUTIONAL
MANNER.  ITS ADOPTION MIGHT HAVE SOME BEARING ON OUR DECISION TO REVIEW
A HOLDING THAT THE "KEY MAN" SYSTEM USED IN MISSISSIPPI IN 1968 WAS
CONSTITUTIONAL, BUT THE NEW ACT IS PLAINLY IRRELEVANT TO THE QUESTION
PRESENTED BY THIS CASE. 

/4/  THOSE CASES INVOLVED DISCRIMINATION UNCONSTITUTIONAL BECAUSE OF
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  BUT THE DUE
PROCESS AND GRAND JURY CLAUSES OF THE FIFTH AMENDMENT MAKE
UNCONSTITUTIONAL THE SAME DISCRIMINATION IN THE FEDERAL SYSTEM. 
BOLLING V. SHARPE, 347 U.S. 497, 499 (1954). 

/5/  THE COURT ALSO NOTES THAT ITS CONCLUSION IS "BUTTRESSED BY THE
COURT'S OBSERVATION IN PARKER V. NORTH CAROLINA, 397 U.S. 790, 798
(1970) . . . THAT '(WHETHER THE QUESTION OF RACIAL EXCLUSION IN THE
SELECTION OF THE GRAND JURY IS OPEN IN A FEDERAL HABEAS CORPUS ACTION
WE NEED NOT DECIDE.'"  I AM AT A LOSS TO UNDERSTAND HOW THAT
OBSERVATION BUTTRESSES THE COURT'S HOLDING TODAY.  IN PARKER WE WERE
REVIEWING A STATE COURT'S DECISION TO DENY COLLATERAL RELIEF UNDER
STATE LAW.  THE STATE COURT HAD REFUSED TO CONSIDER PARKER'S CLAIM THAT
THE GRAND JURY WAS UNCONSTITUTIONALLY COMPOSED BECAUSE HE HAD FAILED TO
RAISE THE CLAIM BEFORE TRIAL.  THAT WAS EITHER AN ADEQUATE STATE
GROUND, IN A PROCEDURAL SENSE, OR A CONSTRUCTION OF THE STATE
COLLATERAL-RELIEF STATUTE.  NO MATTER HOW CONSIDERED, THOUGH, THE COURT
CLEARLY HAD NO JURISDICTION TO CONSIDER THE CONSTITUTIONAL CLAIM.  IT
WOULD HAVE BEEN ODD INDEED HAD WE DECIDED THAT PARKER'S CLAIM COULD OR
COULD NOT BE RAISED IN A FEDERAL HABEAS CORPUS ACTION.  THE OBSERVATION
ON WHICH THE MAJORITY RELIES CAN ONLY MEAN THAT THE QUESTION HAD NOT
THEN BEEN DECIDED BY THIS COURT.  I FAIL TO UNDERSTAND HOW THE FACT
THAT A QUESTION HAD NOT BEEN RESOLVED SUPPORTS ANY PARTICULAR
RESOLUTION OF A SIMILAR QUESTION.  IN THE SENSE OF "BUTTRESSED" USED BY
THE MAJORITY, PARKER ALSO BUTTRESSES MY POSITION. 

/6/  KAUFMAN HAD RAISED THE SEARCH ISSUE AT TRIAL, BUT HIS COUNSEL
ON APPEAL DID NOT PURSUE IT.  394 U.S., AT 220 N. 3.  ORDINARILY, THE
FAILURE TO PURSUE A CLAIM IN THE COURT OF APPEALS BARS FURTHER REVIEW. 
IT DOES SO IN THE NATURE OF THINGS WITH RESPECT TO CONSIDERATION BY THE
COURT OF APPEALS.  AND AS TO REVIEW IN THE COURT, SEE LAWN V. UNITED
STATES, 355 U.S. 339, 362 N. 16 (1958). 

THAT A RULE MAKES A WAIVER "EXPRESS," RATHER THAN A SERIES OF
HOLDINGS DOING THE SAME, SHOULD AFFECT ANALYSIS ONLY IF THE FACT THAT
THE WAIVER IS "EXPRESS" MAKES SOME DIFFERENCE IN TERMS OF POLICY.  THE
COURT OFFERS NO REASONS WHY THE "EXPRESS" WAIVER BEARS ON ANY RELEVANT
POLICIES OF ^ 2255. 

/7/  THE SENTENCE PRECEDING THAT ONE IN THE OPINION OF THE COURT
SIMPLY SAYS THAT SOME INCENTIVE TO RAISE THE CLAIM IS NECESSARY.  IT
DOES NOT SAY WHY THE SYSTEM OF FORECLOSURES MUST BE AIRTIGHT. 

/8/  THE DIFFICULTIES IN PROVING THAT A TACTICAL CHOICE WAS MADE NOT
TO RAISE THE GRAND JURY CLAIM ARE, SO FAR AS I CAN TELL, NO DIFFERENT
FROM PROVING THAT A TACTICAL CHOICE WAS MADE NOT TO MAKE A MOTION TO
SUPPRESS OR TO OBJECT TO A PROSECUTOR'S COMMENTS ON A DEFENDANT'S
FAILURE TO TESTIFY, BOTH DECISIONS TO WHICH THIS COURT HAS APPLIED THE
TRADITIONAL TEST OF WAIVER.  KAUFMAN V. UNITED STATES, 394 U.S. 217
(1969); CAMP V. ARKANSAS, 404 U.S. 69 (1971). 

/9/  SINCE NOTHING DISTINGUISHES THIS CASE FROM OTHERS INVOLVING,
FOR EXAMPLE, CLAIMS OF ILLEGAL SEARCHES, KAUFMAN V. UNITED STATES,
SUPRA, IN TERMS OF THE GOVERNMENTAL INTEREST IN FINALITY IN CRIMINAL
LITIGATION, I DO NOT DISCUSS THAT INTEREST HERE.  THE GOVERNMENT MUST
BE ABLE TO ASSERT INTERESTS PECULIAR TO GRAND JURY CLAIMS IN ORDER TO
SHOW THAT THOSE INTERESTS OUTWEIGH COUNTERVAILING PUBLIC INTERESTS
SERVED BY LEAVING THOSE CLAIMS OPEN TO LATER DETERMINATION. 

/10/  INDEED, THIS COURT HAS SUGGESTED THAT ANY NARROWING OF THOSE
OPPORTUNITIES WOULD ITSELF BE AN UNCONSTITUTIONAL SUSPENSION OF THE
WRIT OF HABEAS CORPUS, ART. I, ^ 9, CL. 2.  FAY V. NOIA, 372 U.S. 391,
406 (1963); SANDERS V. UNITED STATES, 373 U.S. 1, 11 - 12 (1963). 

/11/  I DO NOT UNDERSTAND THE COURT'S CONTENTION THAT THIS IS A
"LIBERAL REQUIREMENT."  IT IS TRUE OF COURSE THAT WAIVER WILL NOT BE
PRESUMED FROM A SILENT RECORD.  CF. CARNLEY V. COCHRAN, 369 U.S. 506,
516 (1962).  BUT IN A CASE LIKE THIS, THE RECORD IS NOT SILENT; IT
SHOWS THAT THE DEFENDANT DID NOT OBJECT TO THE COMPOSITION OF THE GRAND
JURY.  (I DO NOT QUARREL WITH THE COURT'S RELIANCE ON THE FINDING MADE
BELOW THAT, DESPITE DAVIS' ALLEGATIONS, NO PRETRIAL OBJECTION WAS
MADE.)  THUS, THE BURDEN IS ON HIM TO SHOW THAT HE DID NOT KNOW OF HIS
RIGHT TO OBJECT TO THE COMPOSITION OF THE GRAND JURY, OR THAT, KNOWING
OF HIS RIGHTS, HE NONETHELESS DID NOT EXERCISE THEM BECAUSE, FOR
EXAMPLE, HE FEARED THAT TO DO SO WOULD GENERATE HOSTILITY THAT WOULD
ADVERSELY AFFECT HIS CHANCES OF ACQUITTAL. 

/12/  IN A RELATED SETTING, THIS COURT HAS INTERPRETED LANGUAGE THAT
MIGHT BE THOUGHT TO PRECLUDE LATER CLAIMS IN A MANNER SIMILAR TO THAT I
WOULD ADOPT HERE.  SANDERS V. UNITED STATES, SUPRA, INVOLVED THE
QUESTION WHETHER FAILURE TO RAISE A CLAIM IN A PREVIOUS PETITION FOR
COLLATERAL RELIEF PRECLUDED CONSIDERATION OF THAT CLAIM IN A LATER
PETITION.  THERE WAS A STATUTORY PROVISION THAT "(THE SENTENCING COURT
SHALL NOT BE REQUIRED TO ENTERTAIN A SECOND OR SUCCESSIVE MOTION FOR
SIMILAR RELIEF ON BEHALF OF THE SAME PRISONER."  28 U.S.C. ^ 2255.  THE
TERM "SIMILAR RELIEF" WAS INTERPRETED TO MEAN RELIEF BASED UPON THE
SAME CLAIM THAT WAS PRESENTED BEFORE, OR UPON A CLAIM THAT HAD
INTENTIONALLY BEEN RELINQUISHED, 373 U.S., AT 15 - 18. 

MELVIN L. WULF ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

EDWARD R. KORMAN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL PETERSEN, AND SIDNEY M. GLAZER.* 

*JACK GREENBERG, JAMES M. NABRIT III, AND CHARLES STEPHEN RALSTON
FILED A BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.,
AS AMICUS CURIAE URGING REVERSAL. 
..END :










TOLLETT, WARDEN V. HENDERSON, 411 U.S. 258 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT 

     NO. 72 - 95.  ARGUED FEBRUARY 20, 1973--DECIDED APRIL 17,
1973;

  459 F.2D 237, REVERSED AND REMANDED. 


    WHERE A STATE CRIMINAL DEFENDANT, ON ADVICE OF COUNSEL, PLEADS

  GUILTY HE CANNOT IN A FEDERAL HABEAS CORPUS PROCEEDING RAISE

  INDEPENDENT CLAIMS RELATING TO THE DEPRIVATION OF CONSTITUTIONAL

  RIGHTS THAT ANTEDATED THE PLEA, BRADY V. UNITED STATES, 397 U.S.

  742, SUCH AS INFIRMITIES IN THE GRAND JURY SELECTION PROCESS, BUT

  MAY ONLY ATTACK THE VOLUNTARY AND INTELLIGENT CHARACTER OF THE

  GUILTY PLEA BY SHOWING THAT COUNSEL'S ADVICE WAS NOT WITHIN THE

STANDARDS OF MCMANN V. RICHARDSON, 397 U.S. 759.  PP. 261 - 269 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED. 
MARSHALL, J., FILED A DISSENTING OPINION IN WHICH DOUGLAS AND BRENNAN,
JJ., JOINED, POST, P. 269. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

[[HC259'(ORIGINAL DOCUMENT PAGE 259)' 

TWENTY-FIVE YEARS AGO RESPONDENT WAS INDICTED FOR THE CRIME OF FIRST
DEGREE MURDER BY A GRAND JURY IN DAVIDSON COUNTY, TENNESSEE.  ON THE
ADVICE OF COUNSEL, HE PLEADED GUILTY AND WAS SENTENCED TO A TERM OF 99
YEARS IN PRISON.  MANY YEARS LATER HE SOUGHT HABEAS CORPUS IN BOTH
STATE AND FEDERAL COURTS.  IN ONE PETITION IN UNITED STATES DISTRICT
COURT, HE CONTENDED THAT A CONFESSION HE HAD GIVEN TO THE POLICE HAD
BEEN COERCED, AND THAT HE HAD BEEN DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.  THE DISTRICT COURT CONSIDERED THESE CLAIMS AND DECIDED THEM
ADVERSELY TO RESONDENT, THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
AFFIRMED WITHOUT OPENION, AND THIS COURT DENIED CERTIORARI.  HENDERSON
V. HENDERSON, 391 U.S. 927 (1968).  RESPONDENT THEN SOUGHT STATE HABEAS
CORPUS, ALLEGING FOR THE FIRST TIME THAT HE WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT BECAUSE NEGROES HAD BEEN EXCLUDED FROM THE GRAND
JURY WHICH INDICTED HIM IN 1948.  AFTER A SERIES OF PROCEEDINGS IN THE
TENNESSEE TRIAL AND APPELLATE COURTS, THE TENNESSEE COURT OF CRIMINAL
APPEALS ULTIMATELY CONCLUDED THAT RESPONDENT HAD WAIVED HIS CLAIM BY
FAILURE TO RAISE IT BEFORE PLEADING TO THE INDICTMENT, AND BY PLEADING
GUILTY. 

RESPONDENT THEN FILED IN THE UNITED STATES DISTRICT COURT THE
PETITION FOR HABEAS CORPUS WHICH COMMENCED THE PRESENT LITIGATION,
ASSERTING THE DENIAL OF HIS CONSTITUTIONAL RIGHT BY REASON OF THE
SYSTEMATIC EXCLUSION OF NEGROES FROM GRAND JURY SERVICE.  PETITIONER,
IN EFFECT, CONCEDED SUCH SYSTEMATIC EXCLUSION TO HAVE EXISTED, AND THE
DISTRICT COURT SO FOUND.  THE ISSUE UPON WHICH THE DISTRICT COURT AND
THE COURT OF APPEALS FOCUSED WAS WHETHER RESPONDENT'S FAILURE TO OBJECT
TO THE INDICTMENT WITHIN THE TIME PROVIDED BY TENNESSEE LAW CONSTITUTED
A WAIVER OF HIS FOURTEENTH AMENDMENT RIGHT TO BE INDICTED BY A
CONSTITUTIONALLY SELECTED GRAND JURY. 

[[HC260'(ORIGINAL DOCUMENT PAGE 260)' 

AT A STATE HEARING, RESPONDENT TESTIFIED THAT HIS LAWYER DID NOT
INFORM HIM OF HIS CONSTITUTIONAL RIGHTS WITH RESPECT TO THE COMPOSITION
OF THE GRAND JURY, THAT HE DID NOT KNOW HOW THE GRAND JURY WAS SELECTED
OR THAT NEGROES WERE SYSTEMATICALLY EXCLUDED, AND THAT HIS ATTORNEY DID
NOT TELL HIM THAT HE COULD HAVE CHALLENGED THE INDICTMENT, OR THAT
FAILURE TO CHALLENGE IT WOULD PRECLUDE HIM FROM LATER RAISING THAT
ISSUE.  AN UNCHALLENGED AFFIDAVIT SUBMITTED BY THE ATTORNEY WHO
REPRESENTED RESPONDENT IN THE 1948 CRIMINAL PROCEEDING STATED THAT
COUNSEL DID NOT KNOW AS A MATTER OF FACT THAT NEGROES WERE
SYSTEMATICALLY EXCLUDED FROM THE DAVIDSON COUNTY GRAND JURY, AND THAT
THEREFORE THERE HAD BEEN NO OCCASION TO ADVISE RESPONDENT OF ANY RIGHTS
HE HAD AS TO THE COMPOSITION OR METHOD OF SELECTION OF THAT BODY. 

ON THE BASIS OF THIS EVIDENCE, THE COURT OF APPEALS HELD THAT THE
RECORD DEMONSTRATED NO SUCH "WAIVER" OF CONSTITUTIONAL RIGHTS AS THAT
TERM WAS DEFINED IN JOHNSON V. ZERBST, 304 U.S. 458, 464 (1938) --" AN
INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR
PRIVILEGE."  THE COURT OF APPEALS WENT ON TO AFFIRM THE JUDGMENT OF THE
DISTRICT COURT, WHICH HAD ORDERED RESPONDENT RELEASED FROM CUSTODY
BECAUSE NEGROES HAD BEEN EXCLUDED FROM THE GRAND JURY WHICH INDICTED
HIM FOR THE OFFENSE IN QUESTION.  WE GRANTED CERTIORARI IN ORDER TO
DECIDE WHETHER A STATE PRISONER, PLEADING GUILTY WITH THE ADVICE OF
COUNSEL, MAY LATER OBTAIN RELEASE THROUGH FEDERAL HABEAS CORPUS BY
PROVING ONLY THAT THE INDICTMENT TO WHICH HE PLEADED WAS RETURNED BY AN
UNCONSTITUTIONALLY SELECTED GRAND JURY.  /1/

        I 

RESPONDENT, A NEGRO, AND TWO OTHERS WERE ARRESTED BY TENNESSEE
AUTHORITIES FOR THE ROBBERY OF A NASHVILLE LIQUOR STORE AND THE
ATTEMPTED MURDER OF AN EMPLOYEE WHO WAS SHOT DURING THE EPISODE. 

[[HC261'(ORIGINAL DOCUMENT PAGE 261)'  THREE WEEKS LATER THE
EMPLOYEE DIED, AND A DAVIDSON COUNT GRAND JURY SUBSEQUENTLY RETURNED A
MURDER INDICTMENT AGAINST RESPONDENT.  RESPONDENT SIGNED A CONFESSION
ADMITTING HIS INVOLVEMENT IN THE ROBBERY AND SHOOTING. 

AT THE TIME OF HIS ARREST, RESPONDENT WAS 20 YEARS OLD AND HIS
FORMAL EDUCATION HAD TERMINATED AT THE SIXTH GRADE LEVEL.  HE HAD NO
ATTORNEY WHEN HE SIGNED THE CONFESSION, BUT SUBSEQUENTLY HIS MOTHER
RETAINED COUNSEL TO REPRESENT HIM.  THE ATTORNEY'S MAJOR EFFORT APPEARS
TO HAVE BEEN TO ARRANGE A FORM OF PLEA BARGAIN, WHEREBY RESPONDENT
WOULD PLEAD GUILTY TO THE MURDER CHARGE AND THE SENTENCE, ALTHOUGH
IMPOSED BY A PETIT JURY, WOULD BE 99 YEARS, RATHER THAN THE ULTIMATE
PENALTY.  RESPONDENT INITIALLY EXPRESSED A DESIRE TO PLEAD NOT GUILTY,
BUT, APPARENTLY BECAUSE OF THE EVIDENCE AGAINST HIM AND THE POSSIBILITY
THAT THE DEATH SENTENCE MIGHT BE IMPOSED IF HE WERE CONVICTED, HE
DECIDED ON THE ADVICE OF HIS COUNSEL TO PLEAD GUILTY.  THE PLEA WAS
ENTERED, AND THE AGREED-UPON SENTENCE WAS IMPOSED. 

        II 

FOR NEARLY A HUNDRED YEARS IT HAS BEEN ESTABLISHED THAT THE
CONSTITUTION PROHIBITS A STATE FROM SYSTEMATICALLY EXCLUDING NEGROES
FROM SERVING UPON GRAND JURIES THAT INDICT FOR CRIME AND PETIT JURIES
THAT TRY THE FACTUAL ISSUE OF THE GUILT OR INNOCENCE OF THE ACCUSED. 
STRAUDER V. WEST VIRGINIA, 100 U.S. 303, 309 (1880). 

[[HC262'(ORIGINAL DOCUMENT PAGE 262)'  SEE ALSO VIRGINIA V. RIVES,
100 U.S. 313, 322 - 323 (1880).  THESE HOLDINGS HAVE BEEN REAFFIRMED
OVER THE YEARS, SEE, E. G., NORRIS V. ALABAMA, 294 U.S. 587 (1935), AND
PIERRE V. LOUISIANA, 306 U.S. 354 (1939), AND ARE NOT OF COURSE
QUESTIONED HERE.  BUT RESPONDENT'S ASSERTION OF THIS CLAIM HAS ANOTHER
DIMENSION TO IT; IT WAS MADE FOR THE FIRST TIME MANY YEARS AFTER HE HAD
PLEADED GUILTY TO THE OFFENSE FOR WHICH HE WAS INDICTED BY THE GRAND
JURY.  NONE OF OUR PREVIOUS DECISIONS DEALING WITH THE CONSTITUTIONAL
PROHIBITION AGAINST RACIAL DISCRIMINATION IN THE SELECTION OF GRAND
JURORS HAS COME TO US IN THE CONTEXT OF A GUILTY PLEA.  /2/ 

IN BRADY V. UNITED STATES, 397 U.S. 742, 750 (1970), MCMANN V.
RICHARDSON, 397 U.S. 759, 770 (1970), AND PARKER V. NORTH CAROLINA, 397
U.S. 790 (1970), THIS COURT DEALT AT SOME LENGTH WITH THE EFFECT OF A
PLEA OF GUILTY ON THE LATER ASSERTION OF CLAIMED VIOLATIONS OF
CONSTITUTIONAL RIGHTS. 

[[HC263'(ORIGINAL DOCUMENT PAGE 263)'  IN BRADY V. UNITED STATES,
SUPRA, AT 750, 758, THE COURT SAID: 

     "THE STATE TO SOME DEGREE ENCOURAGES PLEAS OF GUILTY AT EVERY

  IMPORTANT STEP IN THE CRIMINAL PROCESS.  FOR SOME PEOPLE, THEIR

  BREACH OF A STATE'S LAW IS ALONE SUFFICIENT REASON FOR

  SURRENDERING THEMSELVES AND ACCEPTING PUNISHMENT.  FOR OTHERS

  APPREHENSION AND CHARGE, BOTH THREATENING ACTS BY THE GOVERNMENT,

  JAR THEM INTO ADMITTING THEIR GUILT.  IN STILL OTHER CASES, THE

  POST-INDICTMENT ACCUMULATION OF EVIDENCE MAY CONVINCE THE

  DEFENDANT AND HIS COUNSEL THAT A TRIAL IS NOT WORTH THE AGONY AND

  EXPENSE TO THE DEFENDANT AND HIS FAMILY.  ALL THESE PLEAS OF

  GUILTY ARE VALID IN SPITE OF THE STATE'S RESPONSIBILITY FOR SOME

  OF THE FACTORS MOTIVATING THE PLEAS; THE PLEAS ARE NO MORE

  IMPROPERLY COMPELLED THAN IS THE DECISION BY A DEFENDANT AT THE

  CLOSE OF THE STATE'S EVIDENCE AT TRIAL THAT HE MUST TAKE THE

  STAND OR FACE CERTAIN CONVICTION. 

        .          .   .          . 

"THIS MODE OF CONVICTION IS NO MORE FOOLPROOF THAN FULL TRIALS TO
THE COURT OR TO THE JURY.  ACCORDINGLY, WE TAKE GREAT PRECAUTIONS
AGAINST UNSOUND RESULTS, AND WE SHOULD CONTINUE TO DO SO, WHETHER
CONVICTION IS BY PLEA OR BY TRIAL.  WE WOULD HAVE SERIOUS DOUBTS ABOUT
THIS CASE IF THE ENCOURAGEMENT OF GUILTY PLEAS BY OFFERS OF LENIENCY
SUBSTANTIALLY INCREASED THE LIKELIHOOD THAT DEFENDANT, ADVISED BY
COMPETENT COUNSEL, WOULD FALSELY CONDEMN THEMSELVES.  BUT OUR VIEW IS
TO THE CONTRARY AND IS BASED ON OUR EXPECTATIONS THAT COURTS WILL
SATISFY THEMSELVES THAT PLEAS OF GUILTY ARE VOLUNTARILY AND
INTELLIGENTLY MADE BY COMPETENT DEFENDANTS WITH ADEQUATE ADVISE OF
COUNSEL AND THAT THERE IS NOTHING TO QUESTION THE ACCURACY AND
RELIABILITY OF THE DEFENDANTS'  ADMISSIONS THAT THEY COMMITTED THE
CRIMES WITH WHICH THEY ARE CHARGED. 

[[HC264'(ORIGINAL DOCUMENT PAGE 264)'

  IN THE CASE BEFORE US, NOTHING IN THE RECORD IMPEACHES BRADY'S
PLEA OR SUGGESTS THAT HIS

  ADMISSIONS IN OPEN COURT WERE ANYTHING BUT THE TRUTH."  IN MCMANN
V. RICHARDSON, SUPRA, AT 770 - 771, THE COURT LAID DOWN THE GENERAL
RULE BY WHICH FEDERAL COLLATERAL ATTACKS ON CONVICTIONS BASED ON GUILTY
PLEAS RENDERED WITH THE ADVICE OF COUNSEL WERE TO BE GOVERNED: 

     "IN OUR VIEW A DEFENDANT'S PLEA OF GUILTY BASED ON REASONABLY

  COMPETENT ADVICE IS AN INTELLIGENT PLEA NOT OPEN TO ATTACK ON THE

  GROUND THAT COUNSEL MAY HAVE MISJUDGED THE ADMISSIBILITY OF THE

  DEFENDANT'S CONFESSION.  WHETHER A PLEA OF GUILTY IS

  UNINTELLIGENT AND THEREFORE VULNERABLE WHEN MOTIVATED BY A

  CONFESSION ERRONEOUSLY THOUGHT ADMISSIBLE IN EVIDENCE DEPENDS AS

  AN INITIAL MATTER, NOT ON WHETHER A COURT WOULD RETROSPECTIVELY

  CONSIDER COUNSEL'S ADVICE TO BE RIGHT OR WRONG, WW BUT ON WHETHER

  THAT ADVICE WAS WITHIN THE RANGE OF COMPETENCE DEMANDED OF

  ATTORNEYS IN CRIMINAL CASES."  (FOOTNOTE OMITTED.) 

THE COURT OF APPEALS IN ITS OPINION IN THIS CASE EXPRESSED THE VIEW
THAT BRADY, SUPRA, AND MCMANN, SUPRA, WERE NOT CONTROLLING, BECAUSE, IN
ITS WORDS: 

     "THE BRADY LINE OF CASES DEALT ONLY WITH CHALLENGES TO THE

  GUILTY PLEA ITSELF; NO SUCH CHALLENGE HAS BEEN MADE HERE." 

  HENDERSON V. TOLLETT, 459 F.2D 237, 242 N. 5 (CA6 1972), /3/

FOR THIS REASON ALONE WE BELIEVE THAT BRADY AND ITS SUCCESSORS CANNOT
GOVERN OUR DECISION HERE.  WE THINK THE COURT OF APPEALS TOOK TOO
RESTRICTIVE A VIEW OF OUR HOLDINGS IN THE BRADY TRILOGY. 

[[HC265'(ORIGINAL DOCUMENT PAGE 265)'  IN EACH OF THOSE CASES THE
HABEAS PETITIONER ALLEGED SOME DEPRIVATION OF CONSTITUTIONAL RIGHTS
THAT PRECEDED HIS DECISION TO PLEAD GUILTY.  IN MCMANN, SUPRA, EACH OF
THE RESPONDENTS ASSERTED THAT A COERCED CONFESSION HAD BEEN OBTAINED BY
THE STATE.  IN BRADY, SUPRA, THE CLAIM WAS THAT THE BURDEN PLACED ON
THE EXERCISE OF THE RIGHT TO JURY TRIAL BY THE STRUCTURE OF THE FEDERAL
KIDNAPING ACT, 18 U.S.C. ^ 1201 -- A BURDEN WHICH WAS HELD
CONSTITUTIONALLY IMPERMISSIBLE IN UNITED STATES V. JACKSON, 390 U.S.
570 (1968) -- HAD MOTIVATED PETITIONER'S DECISION TO PLEAD GUILTY.  IN
PARKER, SUPRA, THE CLAIM WAS THAT A PROVISION OF THAT STATE'S LAWS
SIMILAR TO THAT CONTAINED IN 18 U.S.C. ^ 1201 HAD LIKEWISE MOTIVATED
THE GUILTY PLEA. 

WHILE THE CLAIMS OF COERCED CONFESSIONS EXTRACTED PRIOR TO THE
GUILTY PLEA IN MCMANN WERE IN A SOMEWHAT DIFFERENT POSTURE THAN HAD
THEY BEEN MADE IN ATTACKING A JURY VERDICT BASED IN PART UPON SUCH
CONFESSIONS, THE CLAIM OF IMPERMISSIBLE BURDEN ON THE RIGHT TO JURY
TRIAL RESULTING FROM THE STRUCTURE OF THE KIDNAPING ACT AND THE NORTH
CAROLINA LAW, RESPECTIVELY, WERE NOT SIGNIFICANTLY DIFFERENT FROM WHAT
THEY WOULD HAVE BEEN HAD THEY BEEN MADE FOLLOWING A BENCH TRIAL AND
JUDGMENT OF CONVICTION.  BUT THE COURT IN BRADY AND PARKER, AS WELL AS
IN MCMANN, REFUSED TO ADDRESS THE MERITS OF THE CLAIMED CONSTITUTIONAL
DEPRIVATIONS THAT OCCURRED PRIOR TO THE GUILTY PLEA.  INSTEAD, IT
CONCLUDED IN EACH CASE THAT THE ISSUE WAS NOT THE MERITS OF THESE
CONSTITUTIONAL CLAIMS AS SUCH, BUT RATHER WHETHER THE GUILTY PLEA HAD
BEEN MADE INTELLIGENTLY AND VOLUNTARILY WITH THE ADVICE OF COMPETENT
COUNSEL. 

THERE ARE NO DOUBT FACTUAL AND LEGAL DIFFERENCES BETWEEN
RESPONDENT'S PRESENT ASSERTION OF THE CLAIM OF DISCRIMINATORY SELECTION
OF THE MEMBERS OF A GRAND JURY, AND THE ASSERTION OF THE CONSTITUTIONAL
CLAIMS BY THE PRISONERS IN THE BRADY TRILOGY. 

[[HC266'(ORIGINAL DOCUMENT PAGE 266)'  IN THE LATTER CASES, THE
FACTS GIVING RISE TO THE CONSTITUTIONAL CLAIMS WERE GENERALLY KNOWN TO
THE DEFENDANTS AND THEIR ATTORNEYS PRIOR TO THE ENTRY OF THE GUILTY
PLEAS, AND THE ISSUE IN THIS COURT TURNED ON THE ADEQUACY OF THE
ATTORNEYS' ADVICE IN EVALUATING THOSE FACTS AS A PART OF THE
RECOMMENDATION TO PLEAD GUILTY.  IN THE INSTANT CASE, THE FACTS
RELATING TO THE SELECTION OF THE DAVIDSON COUNTY GRAND JURY IN 1948
WERE FOUND BY THE DISTRICT COURT AND THE COURT OF APPEALS TO HAVE BEEN
UNKNOWN TO BOTH RESPONDENT AND HIS ATTORNEY.  IF THE ISSUE WERE TO BE
CAST SOLELY IN TERMS OF "WAIVER," THE COURT OF APPEALS WAS UNDOUBTEDLY
CORRECT IN CONCLUDING THAT THERE HAD BEEN NO SUCH WAIVER HERE.  BUT
JUST AS THE GUILTY PLEAS IN THE BRADY TRILOGY WERE FOUND TO FORECLOSE
DIRECT INQUIRY INTO THE MERITS OF CLAIMED ANTECEDENT CONSTITUTIONAL
VIOLATIONS THERE, WE CONCLUDE THAT RESPONDENT'S GUILTY PLEA HERE ALIKE
FORCLOSES INDEPENDENT INQUIRY INTO THE CLAIM OF DISCRIMINATION IN THE
SELECTION OF THE GRAND JURY. 

        III 

WE HOLD THAT AFTER A CRIMINAL DEFENDANT PLEADS GUILTY, ON THE ADVICE
OF COUNSEL, HE IS NOT AUTOMATICALLY ENTITLED TO FEDERAL COLLATERAL
RELIEF ON PROOF THAT THE INDICTING GRAND JURY WAS UNCONSTITUTIONALLY
SELECTED.  THE FOCUS OF FEDERAL HABEAS INQUIRY IS THE NATURE OF THE
ADVICE AND THE VOLUNTARINESS OF THE PLEA, NOT THE EXISTENCE AS SUCH OF
AN ANTECEDENT CONSTITUTIONAL INFIRMITY.  A STATE PRISONER MUST, OF
COURSE, PROVE THAT SOME CONSTITUTIONAL INFIRMITY OCCURRED IN THE
PROCEEDINGS.  BUT THE INQUIRY DOES NOT END AT THAT POINT, AS THE COURT
OF APPEALS APPARENTLY THOUGHT.  IF A PRISONER PLEADS GUILTY ON THE
ADVICE OF COUNSEL, HE MUST DEMONSTRATE THAT THE ADVICE WAS NOT "WITHIN
THE RANGE OF COMPETENCE DEMANDED OF ATTORNEYS IN CRIMINAL CASES,"
MCMANN V. RICHARDSON, SUPRA, AT 771.  COUNSEL'S FAILURE TO EVALUATE
PROPERLY FACTS GIVING RISE TO A CONSTITUTIONAL CLAIM, OR HIS FAILURE
PROPERLY TO INFORM HIMSELF OF FACTS THAT WOULD HAVE SHOWN THE EXISTENCE
OF A CONSTITUTIONAL CLAIM, MIGHT IN PARTICULAR FACT SITUATIONS MEET
THIS STANDARD OF PROOF.     [[HC267'(ORIGINAL DOCUMENT PAGE 267)'
THUS, WHILE CLAIMS OF PRIOR CONSTITUTIONAL DEPRIVATION MAY PLAY A PART
IN EVALUATING THE ADVICE RENDERED BY COUNSEL, THEY ARE NOT THEMSELVES
INDEPENDENT GROUNDS FOR DFEDERAL COLLATERAL RELIEF. 

WE THUS REAFFIRM THE PRINCIPLE RECOGNIZED IN THE BRADY TRILOGY:  A
GUILTY PLEA REPRESENTS A BREAK IN THE CHAIN OF EVENTS WHICH HAS
PRECEDED IT IN THE CRIMINAL PROCESS.  WHEN A CRIMINAL DEFENDANT HAS
SOLEMNLY ADMITTED IN OPEN COURT THAT HE IS IN FACT GUILTY OF THE
OFFENSE WITH WHICH HE IS CHARGED, HE MAY NOT THEREAFTER RAISE
INDEPENDENT CLAIMS RELATING TO THE DEPRIVATION OF CONSTITUTIONAL RIGHTS
THAT OCCURRED PRIOR TO THE ENTRY OF THE GUILTY PLEA.  HE MAY ONLY
ATTACK THE VOLUNTARY AND INTELLIGENT CHARACTER OF THE GUILTY PLEA BY
SHOWING THAT THE ADVICE HE RECEIVED FROM COUNSEL WAS NOT WITHIN THE
STANDARDS SET FORTH IN MCMANN. 

A GUILTY PLEA, VOLUNTARILY AND INTELLIGENTLY ENTERED, MAY NOT BE
VACATED BECAUSE THE DEFENDANT WAS NOT ADVISED OF EVERY CONCEIVABLE
CONSTITUTIONAL PLEA IN ABATEMENT HE MIGHT HAVE TO THE CHARGE, NO MATTER
HOW PERIPHERAL SUCH A PLEA MIGHT BE TO THE NORMAL FOCUS OF COUNSEL'S
INQUIRY.  AND JUST AS IT IS NOT SUFFICIENT FOR THE CRIMINAL DEFENDANT
SEEKING TO SET ASIDE SUCH A PLEA TO SHOW THAT HIS COUNSEL IN RETROSPECT
MAY NOT HAVE CORRECTLY APPRAISED THE CONSTITUTIONAL SIGNIFICANCE OF
CERTAIN HISTORICAL FACTS, MCMANN, SUPRA, IT IS LIKEWISE NOT SUFFICIENT
THAT HE SHOW THAT IF COUNSEL HAD PURSUED A CERTAIN FACTUAL INQUIRY SUCH
A PURSUIT WOULD HAVE UNCOVERED A POSSIBLE CONSTITUTIONAL INFIRMITY IN
THE PROCEEDINGS. 

THE PRINCIPAL VALUE OF COUNSEL TO THE ACCUSED IN A CRIMINAL
PROSECUTION OFTEN DOES NOT LIE IN COUNSEL'S ABILITY TO RECITE A LIST OF
POSSIBLE DEFENSES IN THE ABSTRACT, NOR IN HIS ABILITY, IF TIME
PERMITTED, TO AMASS A LARGE QUANTUM OF FACTUAL DATA AND INFORM THE
DEFENDANT OF IT. 

[[HC268'(ORIGINAL DOCUMENT PAGE 268)'  COUNSEL'S CONCERN IS THE
FAITHFUL REPRESENTATION OF THE INTEREST OF HIS CLIENT, AND SUCH
REPRESENTATION FREQUENTLY INVOLVES HIGHLY PRACTICAL CONSIDERATIONS AS
WELL AS SPECIALIZED KNOWLEDGE OF THE LAW.  OFTEN THE INTERESTS OF THE
ACCUSED ARE NOT ADVANCED BY CHALLENGES THAT WOULD ONLY DELAY THE
INEVITABLE DATE OF PROSECUTION, SEE BRADY V. UNITED STATES, SUPRA, AT
751 - 752, OR BY CONTESTING ALL GUILT, SEE SANTOBELLO V. NEW YORK, 404
U.S. 257 (1971).  A PROSPECT OF PLEA BARGAINING, THE EXPECTATION OR
HOPE OF A LESSER SENTENCE, OR THE CONVINCING NATURE OF THE EVIDENCE
AGAINST THE ACCUSED ARE CONSIDERATIONS THAT MIGHT WELL SUGGEST THE
ADVISABILITY OF A GUILTY PLEA WITHOUT ELABORATE CONSIDERATION OF
WHETHER PLEAS IN ABATEMENT, SUCH AS UNCONSTITUTIONAL GRAND JURY
SELECTION PROCEDURES, MIGHT BE FACTUALLY SUPPORTED. 

IN ORDER TO OBTAIN HIS RELEASE ON FEDERAL HABEAS UNDER THESE
CIRCUMSTANCE, RESPONDENT MUST NOT ONLY ESTABLISH THE UNCONSTITUTIONAL
DISCRIMINATION IN SELECTION OF GRAND JURORS, HE MUST ALSO ESTABLISH
THAT HIS ATTORNEY'S ADVICE TO PLEAD GUILTY WITHOUT HAVING MADE INQUIRY
INTO THE COMPOSITION OF THE GRAND JURY RENDERED THAT ADVICE OUTSIDE THE
"RANGE OF COMPETENCE DEMANDED OF ATTORNEYS IN CRIMINAL CASES." 

BECAUSE WE DO NOT HAVE BEFORE US ALL OF THE PAPERS DEALING WITH
RESPONDENT'S PREVIOUS FEDERAL HABEAS PETITIONS, WE ARE NOT IN A
POSITION TO SAY WHETHER HE IS PRESENTLY PRECLUDED FROM RAISING THE
ISSUE OF THE VOLUNTARY AND INTELLIGENT NATURE OF HIS GUILTY PLEA, OR
WHETHER THAT CLAIM WOULD BE OPEN TO HIM ON APPROPRIATE ALLEGATIONS IN A
NEW OR AMENDED PETITION.  THE COURT OF APPEALS WAS AT PAINS TO POINT
OUT THAT RESPONDENT'S PRESENT PETITION DID NOT ATTACK THE GUILTY PLEA. 
IN VIEW OF THE RELIANCE PLACED BY THE COURT OF APPEALS AND THE DISTRICT
COURT IN THEIR RESPECTIVE OPINIONS IN THIS CASE UPON THE STATEMENT OF
THE CONCURRING JUDGE IN THE TENNESSEE COURT OF CRIMINAL APPEALS THAT
"(NO LAWYER IN THIS STATE WOULD HAVE EVER THOUGHT OF OBJECTING TO THE
FACT THAT NEGROES DID NOT SERVE ON THE GRAND JURY IN TENNESSEE IN
1948," THE CHANCES OF RESPONDENT'S BEING ABLE TO CARRY THE NECESSARY
BURDEN OF PROOF IN CHALLENGING THE GUILTY PLEA WOULD APPEAR SLIM. 

[[HC269'(ORIGINAL DOCUMENT PAGE 269)'  NONETHELESS, WE PREFER TO
HAVE THIS ISSUE, IF IT BE OPEN TO RESPONDENT UNDER FEDERAL HABEAS
PRACTICE, FIRST ADDRESSED BY THE DISTRICT COURT OR BY THE COURT OF
APPEALS.  RESPONDENT WAS NOT AT ANY RATE ENTITLED TO RELEASE FROM
CUSTODY SOLELY BY REASON OF THE FACT THAT THE GRAND JURY WHICH INDICTED
HIM WAS UNCONSTITUTIONALLY SELECTED, AND THE JUDGMENT OF THE COURT OF
APPEALS HOLDING OTHERWISE IS REVERSED AND REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  IN PARKER V. NORTH CAROLINA, 397 U.S. 790, 798 (1970), THE
COURT SAID:  "WHETHER THE QUESTION OF RACIAL EXCLUSION IN THE SELECTION
OF THE GRAND JURY IS OPEN IN A FEDERAL HABEAS CORPUS ACTION WE NEED NOT
DECIDE," CITING THREE DECISIONS OF THE COURTS OF APPEALS.  ALL OF THESE
DECISIONS DEALT WITH THE ISSUE OF WHETHER GRAND JURY EXCLUSION MIGHT BE
RAISED ON FEDERAL HABEAS AFTER A PLEA OF NOT GUILTY AND TRIAL BY JURY. 
THAT ISSUE IS LEFT OPEN BY THIS OPINION, AS IT WAS BY PARKER. 

/2/  CF. ALEXANDER V. LOUISIANA, 405 U.S. 625 (1972); SIMS V.
GEORGIA, 389 U.S. 404 (1967); JONES V. GEORGIA, 389 U.S. 24 (1967);
WHITUS V. GEORGIA, 385 U.S. 545 (1967); COLEMAN V. ALABAMA, 377 U.S.
129 (1964); ARNOLD V. NORTH CAROLINA, 376 U.S. 773 (1964); EUBANKS V.
LOUISIANA, 356 U.S. 584 (1958); REECE V. GEORGIA, 350 U.S. 85 (1955);
WILLIAMS V. GEORGIA, 349 U.S. 375 (1955); HERNANDEZ V. TEXAS, 347 U.S.
475 (1954); AVERY V. GEORGIA, 345 U.S. 559 (1953); CASSELL V. TEXAS,
339 U.S. 282 (1950); PATTON V. MISSISSIPPI, 332 U.S. 463 (1947); AKINS
V. TEXAS, 325 U.S. 398 (1945); HILL V. TEXAS, 316 U.S. 400 (1942);
SMITH V. TEXAS, 311 U.S. 128 )1940); PIERRE V. LOUISIANA, 306 U.S. 354
)1939); HALE V. KENUTKCY, 303 U.S. 613 (1938); HOLLINS V. OKLAHOMA, 295
U.S. 394 (1935); NORRIS V. ALABAMA, 294 U.S. 587 (1935); MARTIN V.
TEXAS, 200 U.S. 316 (1906); ROGER V. ALABAMA, 192 U.S. 226 (1904);
TARRANCE V. FLORIDA, 188 U.S. 519 (1903); CARTER V. TEXAS, 177 U.S. 442
(1900); WILLIAMS V. MISSISSIPPI, 170 U.S. 213 (1898); GIBSON V.
MISSISSIPPI, 162 U.S. 565 (1896); BUSH V. KENTUCKY, 107 U.S. 110
(1883); NEAL V. DELAWARE, 103 U.S. 370 (1881); STRAUDER V. WEST
VIRGINIA, 100 U.S. 303 (1880). 

/3/  A RECENT DECISION OF THE FOURTH CIRCUIT, PARKER V. ROSS, 470
F.2D 1092 (1972), ARRIVED AT THE CONCLUSION WE NOW REACH BY EXTENDING
THE REASONING OF THE BRADY TRILOGY TO THE TYPE OF CLAIM RESPONDENT
SEEKS TO ASSERT. 

[[DOP MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE BRENNAN JOIN, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS.  I AM CONVINCED
THAT HENDERSON AMPLY DEMONSTRATED THAT HE IS ENTITLED TO RELIEF ON ANY
ACCEPTABLE THEORY OF VOLUNTARINESS, RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL, OR WAIVER, AND THAT NO FURTHER PROCEEDINGS ARE NECESSARY.  THE
COURT ADOPTS AN INFLEXIBLE RULE IN A CASE WHERE, AS THE COURT OF
APPEALS NOTED, THE FACTS ESTABLISH A NEED FOR FLEXIBILITY.  459 F.2D
237, 242 N. 5 (CA 6 1962).  IN DOING SO, IT DISREGARDS THIS COURT'S
PREVIOUS COUNSEL THAT WHETHER A DEFENDANT IS TO BE PRECLUDED FROM
ESTABLISHING A CLAIM THAT HIS CONSTITUTIONAL RIGHTS HAVE BEEN INFRINGED
"MUST DEPEND, IN EACH CASE, UPON THE PARTICULAR FACTS AND CIRCUMSTANCES
SURROUNDING THAT CASE," JOHNSON V. ZERBST, 304 U.S. 458, 464 (1938). 

THE COURT RELIES ON THE "GUILTY PLEA" TRILOGY, BRADY V. UNITED
STATES, 397 U.S. 742 (1970), MCMANN V. RICHARDSON, 397 U.S. 759 (1970),
AND PARKER V. NORTH CAROLINA, 397 U.S. 790 (1970).  IN EACH OF THOSE
CASES THE COURT HELD THAT GUILTY PLEA, INTELLIGENTLY AND VOLUNTARILY
MADE, BARRED THE ASSERTION OF LATER CLAIMS THAT AT SOME POINT IN THE
PRETRIAL PROCESS, AN ADMISSION OF GUILT HAD BEEN UNCONSTITUTIONALLY
EXTRACTED, WITHER THROUGH A COERCED CONFESSION OR THROUGH A PLEA OF
GUILTY INDUCED BY FEAR OF ENHANCED PUNISHMENT IF SUCH A PLEA WERE NOT
MADE.  IN MCMANN, THE COURT SUMMARIZED THE VIEW OF THE CRIMINAL PROCESS
UNDERLYING THOSE CASES, STATING, "IN OUR VIEW A DEFENDANT'S PLEA OF
GUILTY BASED ON REASONABLY COMPETENT ADVICE IS AN INTELLIGENT PLEA NOT
OPEN TO ATTACK ON THE GROUND THAT COUNSEL MAY HAVE MISJUDGED THE
ADMISSIBILITY OF THE DEFENDANT'S CONFESSION."  397 U.S., AT 770. 

THE COURT TODAY EXTENDS THAT HOLDING, SO THAT, EVEN WHERE COUNSEL
DOES NOT CONSIDER AND PRESENT TO HIS CLIENT THE POSSIBILITY OF A
CHALLENGE TO THE COMPOSITION OF THE GRAND JURY, THE CLIENT IS
NONETHELESS HELD TO HAVE MADE AN "INTELLIGENT" GUILTY PLEA.  I THINK
THAT THIS EXTENSION OF THE "GUILTY PLEA" TRILOGY IS MISCONCEIVED. 
THOSE CASES WERE CONCERNED WITH THE PRACTICAL CONSEQUENCES OF
OVERTURNING NEGOTIATED PLEAS OF GUILTY SIMPLY ON THE GROUND THAT THE
DEFENSE MAY HAVE MISJUDGED THE POSSIBILITY OF SUCCESSFULLY RAISING
CONSTITUTIONAL CHALLENGES TO THE PRETRIAL PROCEEDINGS.  THE COURT
RECOGNIZED THE IMPORTANCE OF PLEA BARGAINING TO THE ADMINISTRATION OF
CRIMINAL JUSTICE.  SEE, E. G., BRADY V. UNITED STATES, SUPRA, AT 750 -
753.  PROMISES OF LENIENCY, WHICH THE COURT VIEWED AS INDISTINGUISHABLE
FROM THE CHALLENGES IN THOSE CASES, ARE USED TO INDUCE DEFENDANTS TO
FORGO POSSIBLY MERITORIOUS CHALLENGES TO THE PROCEEDINGS AGAINST THEM. 
THIS, THE COURT BELIEVED, PERMITTED THE IMPOSITION OF PUNISHMENT ON
OFFENDERS WHO DESERVED IT, WITHOUT SIGNIFICANTLY IMPAIRING THE
INTEGRITY OF THE GRIMINAL PROCESS BY LEAVING UNSANCTIONED ALL
CONSTITUTIONAL VIOLATIONS. 

WHATEVER ONE MAY THINK OF THIS ANALYSIS, /1/  IT IS PLAINLY PREMISED
ON THE NOTION OF BARGAIN AND EXCHANGE:  IN RETURN FOR RELINQUISHING A
CONSTITUTIONAL CHALLENGE, THE OFFENDER RECEIVES MORE LENIENT
TREATMENT.  CLEARLY, THAT DECISION MUST BE MADE BY THE DEFENDANT, FOR
WE WOULD NOT LET AN ATTORNEY BARGAIN AWAY HIS CLIENT'S RIGHTS.  /2/  IT
IS THE DEFENDANT WHO MUST, "WITH THE HELP OF COUNSEL, RATIONALLY WEIGH
THE ADVANTAGES OF GOING TO TRIAL AGAINST THE ADVANTAGES OF PLEADING
GUILTY."  ID., AT 750.  YET NOTHING LIKE THAT HAPPENED IN THIS CASE. 
HENDERSON'S ATTORNEY NEVER PRESENTED TO HIM THE POSSIBILITY THAT, BY
INSISTING UPON INDICTMENT BY A PROPERLY COMPOSED GRAND JURY, HE MIGHT
SECURE A MORE FAVORABLE BARGAIN.  SEE APP. 83, 96. 

THE OPINION OF THE COURT DEVOTES MOST OF ITS ATTENTION TO ASSERTIONS
AND REASSERTIONS THAT IN ALL CASES A GUILTY PLEA "MAY NOT BE VACATED
BECAUSE THE DEFENDANT WAS NOT ADVISED OF EVERY CONCEIVABLE
CONSTITUTIONAL PLEA IN ABATEMENT HE MIGHT HAVE TO THE CHARGE."  BUT THE
MAJORITY GIVES US ALMOST NO REASON WHY THOSE ASSERTIONS SHOULD BE
ACCEPTED, AND, WITH RESPECT, I CANNOT ACCEPT THEM. 

THE COURT INVOKES THE SPECTER OF REQUIRING COUNSEL TO PRESENT TO HIS
CLIENT "EVERY CONCEIVABLE CONSTITUTIONAL PLEA IN ABATEMENT,"
SUGGESTING, I SUPPOSE, THAT THERE ARE SUCH A HUGE NUMBER OF CONCEIVABLE
CONSTITUTIONAL OBJECTIONS TO THE PROSECUTION AS TO MAKE SUCH A
REQUIREMENT UTTERLY IMPRACTICAL.  I DOUBT THAT THIS ACCURATELY REFLECTS
THE TRUE SITUATION; IN MOST CASES ONLY ONE OR TWO POSSIBLY MERITORIOUS
OBJECTIONS TO THE PROSECUTION CAN BE MADE BEFORE TRIAL.  AND, AFTER
ALL, THESE ARE OBJECTIONS BOTTOMED ON CONSTITUTIONAL GUARANTEES.  I
WOULD HAVE THOUGHT THAT THE FACT THAT THE CONSTITUTION PLACED LIMITS ON
THE PROSECUTION WOULD BE VERY IMPORTANT IN DECIDING WHETHER A LAWYER'S
PROFESSIONAL RESPONSIBILITY REQUIRED HIM TO CONSULT WITH HIS CLIENT
BEFORE TAKING ACTION THAT LED TO A RELINQUISHMENT OF THE CONSTITUTIONAL
OBJECTION.  SURELY BRADY IMPLIED AS MUCH IN SAYING THAT GUILTY PLEAS,
BECAUSE THEY OPERATE AS A WAIVER OF CONSTITUTIONAL RIGHTS, "MUST BE
KNOWING, INTELLIGENT ACTS DONE WITH SUFFICIENT AWARENESS OF THE
RELEVANT CIRCUMSTANCES AND LIKELY CONSEQUENCES," 397 U.S., AT 748.  THE
COURT TODAY EXTENDS THE HOLDINGS OF THE "GUILTY PLEA" TRILOGY WITHOUT
REFERENCE TO THE RATIONALE BY WHICH THOSE CASES WERE RECONCILED WITH
THE REQUIREMENTS OF THE CONSTITUTION THAT A PLEA IS A WAIVER OF
CONSTITUTIONAL RIGHTS ONLY WHERE THE DEFENDANT HAS BEEN INFORMED OF
THOSE RIGHTS AND DECIDES NOT TO INVOKE THEM IN ORDER TO GAIN SOME
ADVANTAGE. 

IN THE END, THE COURT SEEMS TO ADOPT A CONCEPT OF PROFESSIONAL
RESPONSIBILITY THAT I CANNOT ACCEPT.  IT WOULD LET AN ATTORNEY
"ADVANCE" THE INERESTS OF HIS CLIENT WITHOUT EVEN INFORMING HIMSELF
ABOUT THE FACTS UNDERLYING A CONSTITUTIONAL CHALLENGE SO THAT HE MIGHT
INFORM THE CLIENT ABOUT THE WAY IN WHICH, IN THE ATTORNEY'S
PROFESSIONAL JUDGMENT, THE COURSE HE IS TAKING IN FACT ADVANCES THOSE
INTERESTS.  "(FAITHFUL REPRESENTATION OF THE INTEREST OF HIS CLIENT"
ANTE, AT 268, MEANS, I BELIEVE, THAT AN ATTORNEY MUST CONSULT WITH THE
CLIENT FULLY ON MATTERS OF CONSTITUTIONAL MAGNITUDE.  WITHOUT SUCH
CONSULTATION, THE REPRESENTATION OF CRIMINAL DEFENDANTS BECOMES ONLY
ANOTHER METHOD OF MANIPULATING PERSONS IN SITUATIONS WHERE THEIR
CONTROL OVER THEIR LIVES IS PRECISELY WHAT IS AT STAKE. 

IF PLEA BARGAINING IS TO BE CONSTITUTIONALLY ACCEPTABLE, IT MUST
REST UPON PERSONAL CHOICES MADE BY DEFENDANTS INFORMED ABOUT POSSIBLE
ALTERNATIVES; AT LEAST, THEY SHOULD KNOW WHAT OPTIONS ARE OPEN TO
THEM.  IN THIS CASE, HENDERSON MIGHT HAVE SECURED A SENTENCE SHORTER
THAN 99 YEARS BY REQUIRING THE STATE TO DEFEND THE CONSTITUTIONALITY OF
ITS PROCEDURES FOR SELECTING GRAND JURIES.  AS IS CLEAR FROM THIS
RECORD, SUCH A DEFENSE COULD NOT HAVE SUCCEEDED, AND THE EMBARRASSMENT
OF ATTEMPTING A MORE FAVORABLE BARGAIN.  /3/  I FIND NOTHING IN THE
OPINION OF THE COURT THAT PERSUADES ME THAT HENDERSON'S ATTORNEY ACTED
"WHITHIN THE RANGE OF COMPETENCE DEMANDED OF ATTORNEYS IN CRIMINAL
CASES," MCMANN V. RICHARDSON, SUPRA, AT 771, BECAUSE HE DID NOT CONSULT
WITH HIS CLIENT ON A MATTER ABOUT WHICH CONSULTATION IS REQUIRED. 
PETITIONER SUGGESTS, HOWEVER, THAT HENDERSON'S ATTORNEY MAY HAVE
CONSIDERED THE POSSIBILITY OF CHALLENGING THE INDICTMENT BUT REJECTED
THAT COURSE BECAUSE HE BELIEVED THAT THE GRAND JURY WAS IN FACT
SELECTED BY PROCEDURES THAT CONFORMED TO CONSTITUTIONAL REQUIREMENTS. 
THERE IS ONLY THE BAREST SUPPORT IN THE RECORD FOR THIS CONTENTION, /4/
AND THE DISTRICT JUDGE EXPLICITLY FOUND THAT NO OBJECTION WAS MADE BY
COUNSEL "QUITE SIMPLY, BECAUSE THE POSSIBLITY NEVER OCCURRED TO HIM." 
342 F. SUPP. 113, 115.  BUT EVEN IF PETITIONER'S SUGGESTION WERE
CORRECT, IT WOULD NOT ADVANCE HIS CAUSE.  FOR THEN, AS JUDGE CELEBREZZE
APTLY PUT IT, THE ATTORNEY'S DECISION WOULD HAVE BEEN "GROSSLY
INADEQUATE IN LIGHT OF THE CLEARLY ESTABLISHED CONSTITUTIONAL LAW OF
THE PERIOD."  459 F.2D, AT 242 N. 5.  /5/ 

HENDERSON WAS INDICTED IN MARCH 1948 BY A GRAND JURY IN DAVIDSON
COUNTY, TENNESSEE.  /6/  ALTHOUGH NEGROES CONSTITUTED 25% OF THE
POPULATION OF THE COUNTY IN 1948, NOT A SINGLE NEGRO HAD SERVED ON THE
GRAND JURY IN THE YEARS BEFORE 1948.  /7/  IN ADDITION, WHENEVER THE
NAME OF A NEGRO APPEARED ON THE LISTS FROM WHICH MEMBERS OF THE GRAND
JURY WERE CHOSE, THE LETTERS "C" OR "COL" WERE MARKED NEXT TO THE
NAME.  IN THE WORDS OF THE COURT OF APPEALS, "OFFICIALS WERE THUS
PROVIDED WITH A SIMPLE MEANS OF DETERMINING WHICH CITIZENS MIGHT BE
APPROPRIATELY 'EXCUSED' FROM GRAND JURY DUTY.  IT IS APPARENT FROM THE
ABSENCE OF ANY NEGROES ON THE GRAND JURY PANELS THAT THE MEANS WERE
USED AND THE IMPERMISSIBLE END OF EXLUSION ACCOMPLISHED."  459 F.2D, AT
239 N. 2. 

TWO POINTS ABOUT THESE FACTS MUST BE EMPHASIZED.  FIRST, THE LAW WAS
CLEAR IN 1948 THAT IT WAS EXTREMELY DIFFICULT FOR A STATE TO ESTABLISH
THAT IT DID NOT UNCONSTITUTIONALLY EXCLUDE NEGROES FROM SERVICE ON THE
GRAND JURY IF NO NEGROES IN FACT SERVED AND A METHOD OF SELECTION WAS
USED THAT BROUGHT TO THE ATTENTION OF THE PERSONS SELECTING THE GRAND
JURY THE RACE OF POTENTIAL GRAND JURORS.  SEE, E. G., PATTON V.
MISSISSIPPI, 332 U.S. 463, 466 (1947); HILL V. TEXAS, 316 U.S. 400
(1942); SMITH V. TEXAS, 311 U. S. 128 (1940).  IT WAS THEREFORE
RELATIVELY EASY TO ASSESS WHETHER, IF AN ATTORNEY COULD PRESENT THAT
KIND OF EVIDENCE, A CONSTITUTIONAL CHALLENGE TO THE INDICTMENT WAS
LIKELY TO SUCCEED.  THUS, MAKING THE DECISION TO CHALLENGE THE GRAND
JURY IS DIFFERENT FROM MAKING THE DECISION TO CHALLENGE A CONFESSION AS
COERCED OR A SEARCH AS UNREASONABLE.  THE LATTER DECISION, AS THE COURT
EMPHASIZED IN MCMANN V. RICHARDSON, SUPRA, AT 769 - 770, OFTEN TURNS
UPON PREDICTIONS ABOUT HOW CERTAIN FACTS WILL BE VIEWED BY A COURT
ATTEMPTING TO APPLY LARGELY UNSTRUCTURED TESTS OF REASONABLENESS OR
VOLUNTARINESS UNDER ALL THE CIRCUMSTANCES.  I WOULD THEREFORE ACCORD
LESS WEIGHT TO THE FACT THAT AN ATTORNEY MUST MAKE PROFESSIONAL
JUDGMENTS IN CASES LIKE THIS ONE THAN IN CASES LIKE MCMANN, IN LINE
WITH THE DIFFERENCE IN THE EASE WITH WHICH SUCH JUDGMENTS CAN
CONFIDENTLY BE MADE. 

SECOND, IT TAKES ALMOST NO INQUIRY AT ALL TO DETERMINE WHETHER ANY
NEGROES HAD SERVED ON LOCAL GRAND JURIES AND WHETHER RACIAL
DESIGNATIONS APPEARED ON THE LISTS FROM WHICH GRAND JURORS WERE
CHOSEN.  IN ITS QUEST TO ESTABLISH A GENERAL RULE APPLICABLE TO ALL
CASES OF CHALLEGNES TO THE COMPOSITION OF GRAND JURIES, THE COURT
DISREGARDS THIS FACT.  INSTEAD, IT CHARACTERIZES THE PROBLEM AS
INVOLVING "AMASSING A LARGE QUANTUM OF FACTUAL DATA" AND "ELABORATE
CONSIDERATION OF WHETHER PLEAS IN ABATEMENT . . . MIGHT BE FACTUALLY
SUPPORTED."  ANTE, AT 268.  WHATEVER MIGHT BE THE SITUATION IN OTHER
CASES, THE FACTS IN THIS CASE SHOW THAT NO LARGE AMOUNTS OF DATA OR
ELABORATE CONSIDERATION IS INVOLVED.  THAT IS ENOUGH TO DEMONSTRATE THE
FALLACY OF THE COURT'S ATTEMPT TO DEFINE A BROAD GENERAL RULE.  I WOULD
ADHERE TO TESTS THAT TURN ON THE FACTS OF EACH CASE.  CF. JOHNSON V.
ZERBST, 304 U.S. 458 (1938). 

THE COURT SUGGESTS THAT THE FAILURE BY HENDERSON'S ATTORNEY TO
CONSIDER THE POSSIBILITY OF A CONSTITUTIONAL CHALLENGE MAY BE EXCUSED
BECAUSE, IN THE WORDS OF A JUDGE OF THE TENNESSEE COURT OF CRIMINAL
APPEALS, -- TENN. APP. --, --, 459 S.W. 2D 176, 179 (1970), "NO LAWYER
IN THIS STATE WOULD HAVE EVER THOUGHT OF OBJECTING TO THE FACT THAT
NEGROES DID NOT SERVE ON THE GRAND JURY IN TENNESSEE IN 1948."  THAT
STATEMENT IS SIMPLY UNTRUE.  EVEN CURSORY RESEARCH HAS DISCLOSED
SEVERAL CASES AT THE APPELLATE LEVEL IN WHICH SUCH CHALLENGES WERE
RAISED BY LOCAL ASSTORNEYS.  KENNEDY V. STATE, 186 TENN. 310, 210 S.W.
2D 132 (1947); WILLIAMSON V. STATE, 194 TENN. 341, 250 S.W. 2D 556
(1952); /8/  BECKETT V. UNITED STATES, 84 F.2D 731 (CA6 1936).  IT MAY
WELL BE THAT HENDERSON "RECEIVED THE SAME ADVICE ON THIS POINT (THAT
IS, NONE AT ALL) THAT HE WOULD HAVE RECEIVED FROM MOST OTHER LAWYERS IN
TENNESSEE IN 1948."  459 F.2D, AT 242 N. 6.  THAT SHOULD NOT EXONERATE
HENDERSON'S ATTORNEY, THOUGH; IT RELFECTS, AS JUDGE CELEBREZZE SAID, "A
TOO-LONG TOLERATE GAP BETWEEN THE REQUIREMENTS OF THE CONSTITUTION AND
REALITIES OF TENNESSEE CRIMINAL PRACTICE."  IBID.  DETERMINATION OF
WHETHER COUNSEL IS COMPETENT SHOULD NOT TURN ON THE FACT THAT MANY
ATTORNEYS IN A PARTICULAR PLACE AT A GIVEN TIME WOULD NOT THINK OF
RAISING CERTAIN CLAIMS.  THE TEST MUST BE WHETHER THE ADVICE WAS
COMPETENT IN LIGHT OF OF THE LAW OF THE TIME, /9/  AND WITHOUT REGARD
TO LOCAL PECULIARITIES.  CF. UNITED STATES EX REL. GOLDSBY V. HARPOLE,
263 F.2D 71, 82 (CA5 1959); WINDOM V. COOK, 423 F.2D 721 (CA5 1970). 

IF HENDERSON'S ATTORNEY HAD HAD EVEN A PASSING ACQUAINTANCE WITH THE
TENNESSEE SUPREME COURT'S DECISION IN KENNEDY V. STATE, SUPRA, A
DECISION PLAINLY RELEVANT TO HENDERSON'S SITUATION AND RECENTLY
DECIDED, HE WOULD HAVE IMMEDIATELY NOTICED THAT HE HAD A VERY STRONG
CASE.  THE TENNESSEE SUPREME COURT HELD THAT KENNEDY HAD FAILED TO
PROVE HIS CLAIM OF UNCONSTITUTIONAL DISCRIMINATION IN THE SELECTION OF
GRAND JURORS.  THE STATE SUPREME COURT IN KENNEDY EMPHASIZED THAT THE
JURY COMMISSIONERS IN MAURY COUNTY SELECTED NAMES FROM TAX BOOKS THAT
"CONTAINED NO IDENTIFYING SYMBOLS WHEREBY THE RACE OF ANY TAXPAYER
MIGHT BE KNOWN," AND THAT 10 PERSONS OF 109 SUMMONED FROM JURY SERVICE
WERE NEGROES.  186 TENN., AT 316, 210 S.W. 2D, AT 134.  AN ATTORNEY OF
MINIMAL COMPETENCE WOULD HAVE REALIZED THAT, WHERE NO NEGROES HAD BEEN
SUMMONED FOR SERVICE OVER MANY YEARS AND WHERE RACIAL DESIGNATIONS WERE
USED, THE TENNESSEE SUPREME COURT WOULD VERY PROBABLY HAVE HELD THE
SELECTION SYSTEM UNCONSTITUTIONAL, IN LINE WITH THE DECISION OF THIS
COURT.  /10/ 

I BELIEVE THAT THE COURT TODAY ADOPTS A RULE THAT DOES NOT REFLECT
THE VARIETY OF CIRCUMSTANCES IN WHICH CLAIMS LIKE HENDERSON'S ARISE. 
THE COURT'S RULE IS PARTICULARLY INAPPROPRIATE IN THIS VERY CASE.  I
THEREFORE DISSENT. 

[[DFN 

/1/  MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND I DISSENTED IN
MCMANN AND PARKER, BELIEVING THAT GUILTY PLEAS WERE SO PREVALENT THAT
IT DID IMPAIR CONSTITUTIONAL PROTECTIONS TO PERMIT A PLEA TO BAR
CHALLENGES TO THE PROSECTUION. 

/2/  SOME OF THIS COURT'S DECISIONS SUGGEST THAT AN ATTORNEY'S
DECISION, IN WHICH THE DEFENDANT DOES NOT PARTICIPATE, NOT TO RAISE A
CONSTITUTIONAL OBJECTION MAY SOMETIMES PRECLUDE SUCCESSFUL RELIANCE ON
THE CONSTITUTIONAL CLAIM.  SEE HENRY V. MISSISSIPPI, 379 U.S. 443, 451
(1965); BROOKHART V. JANIS, 384 U.S. 1, 7 - 8 (1966).  IF SUCH A RULE
IS TO BE SQUARELY ADOPTED BY THIS COURT, IT SHOULD BE LIMITED NARROWLY
TO SITUATIONS IN WHICH PRACTICAL REALITIES BAR CONSULTATION, AS OFTEN
MAY HAPPEN DURING THE COURSE OF TRIAL.  CF. MURCH V. MOTTRAM, 409 U.S.
41 (1972). 

/3/  EVEN IF THE STATE SUCCESSFULLY DEFENDED ITS PROCEDURES IN A
PRELIMINARY ATTACK, OR IF IT DECIDED TO INSTITUTE PROCEEDINGS ANEW BY
CONVENING A NEW GRAND JURY, HENDERSON WOULD HAVE SECURED TIME IN WHICH
TO PREPARE A BETTER DEFENSE AND IN WHICH PASSIONS OVER HIS OFFENSE
MIGHT SUBSIDE, SO THAT A PLEA OF NOT GUILTY MIGHT HAVE BEEN MORE
ATTRACTIVE TO HIM. 

/4/  IN A HEARING HELD IN STATE COURT ON HENDERSON'S APPLICATION FOR
COLLATERAL RELIEF, AND AFFIDAVIT FROM THE ATTORNEY WHO HAD REPRESENTED
HIS WAS INTRODUCED.  IT STATED IN PART, "I HAVE NEVER BEEN AWARE OF ANY
IRREGULARITY IN THE METHOD OF SELECTION OF GRAND OR PETIT JURIES,
PARTICULARLY IN REGARD TO SYSTEMATIC EXCLUSION OF MEMBERS OF ANY RACE .
. ."  APP. 96. 

/5/  IN THIS REGARD THE STICTURES IN MCMANN V. RICHARDSON, 397 U.S.
759, 772 - 773 (1970), AGAINST ASSESSING DECISIONS BY COUNSEL IN THE
LIGHT OF SUBSEQUENT DEVELOPMENTS IN THE LAW HAVE NO FORCE. 

/6/  DAVIDSON COUNTY INCLUDES THE CITY OF NASHVILLE. 

/7/  THE FIRST NEGRO TO SERVE ON THE DAVIDSON COUNTY GRAND JURY WAS
SELECTED IN 1953. 

/8/  THE OFFENSE IN THE CASE OCCURRED IN 1949; THE REPORT DOES NOT
INDICATE WHEN THE TRIAL COMMENCED.  IN ITS OPINION, THE TENNESSEE
SUPREME COURT NOTED THAT "SOME MONTHS AGO THIS COURT REVERSED A
CONVICTION . . . BECAUSE NO MEMBERS OF THE COLORED RACE WERE SUMMONED
FOR JURY SERVICE."  194 TENN. 341, 346, 250 S.W. 2D 556, 558 (1952). 

/9/  INCLUDING OF COURSE, CONSIDERATION OF RECENT TRENDS THAT MIGHT
SUGGEST FRUITFUL ATTEMPTS TO RAISE CLAIMS REJECTED IN DECISIONS WHOSE
RATIONAL HAS BEEN UNDERMINED BY LATER DECISIONS.  CF. TEHAN V. SHOTT,
382 U.S. 406 (1966); MILTON V. WAINWRIGHT, 407 U.S. 371, 381 - 382
(STEWART, J., DISSENTING). 

/10/  NOTWITHSTANDING THESE DIFFERENCES BETWEEN KENNEDY AND THIS
CASE, PETITIONER SUGGESTS THAT IT WOULD HAVE BEEN "AN EXERCISE IN
FUTILITY" TO HAVE CHALLENGED THE COMPOSITION OF THE GRAND JURY IN THIS
CASE.  BRIEF FOR PETITIONER 12.  I WOULD NOT LIGHTLY ASSUME THAT A
STATE'S HIGHEST COURT WOULD DISREGARD CLEAR HOLDINGS, CONSISTENTLY
REITERATED, OF THIS COURT.  BUT EVEN IF PETITIONER'S ASSESSMENT IS
CORRECT, IT WOULD FURTHER UNDERCUT EXTENDING THE RATIONAL OF THE
"GUILTY PLEA" TRILOGY TO THIS CASE.  AS I HAVE SAID ABOVE, PLEA
BARGAINING RESTS ON AN EXCHANGE.  IF THE STATE REFUSES TO ACKNOWLEDGE
THAT IT MAY HAVE SOMETHING TO LOSE, BY TAKING THE POSITION THAT STATE
COURTS WOULD FAIL TO APPLY ESTABLISHED CONSTITUTIONAL STANDARDS TO
UNDISPUTED FACTS, NO BARGAIN IS POSSIBLE.  IN SUCH A CASE, EVEN ON THE
RATIONALE OF THE "GUILTY PLEA" CASES, THE PLEA WOULD BE INVOLUNTARY. 

PEITIONER'S SUGGESTION IS OF COURSE PREMISED ON AN ESTIMATE OF HOW A
COMPETENT ATTORNEY WOULD HAVE ASSESSED THE CHANCES OF PREVAILING ON THE
CONSTITUTIONAL CHALLENGE.  SINCE HENDERSON'S ATTORNEY MADE NO SUCH
ASSESSMENT ANYWAY, THE SUGGESTION HAS NO RELEVANCE TO THIS CASE. 

R. JACKSON ROSE, ASSISTANT ATTORNEY GENERAL OF TENNESSEE, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE DAVID M. PACK,
ATTORNEY GENERAL, AND BAR C. DURHAM III AND WILLIAM C KOCH, ASSISTANT
ATTORNEYS GENERAL. 

H. FRED HOEFLE, BY APPOINTMENT OF THE COURT, 409 U.S. 1004, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

EVELLE J. YOUNGER, ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF
ASSISTANT ATTORNEY GENERAL, DORIS H. MAIER AND EDWARD P. O'BRIEN,
ASSISTANT ATTORNEYS GENERAL, AND GLORIA F. DEHART, DEPUTY ATTORNEY
GENERAL FILED A BRIEF FOR THE STATE OF CALIFORNIA AS AMICUS CURIAE
URGING REVERSAL. 

JACK GREENBERG, JAMES M. NABRIT III, AND CHARLES STEPHEN RALSON
FILED A BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.,
AS AMICUS CURIAE, URGING AFFIRMANCE. 
..END :






UNITED STATES V. INDRELUNAS, 411 U.S. 216 


       PETITION FOR CERTIORARI TO THE UNITED STATES COURT OF

           APPEALS FOR THE SEVENTH CIRCUIT 

     NO. 72 - 805.  DECIDED APRIL 16, 1973; CERTIORARI GRANTED; 465

  F.2D 163, REVERSED AND REMANDED.  THE PROVISION IN FED. RULE CIV.

  PROC. 58, THAT "(EVERY JUDGEMENT OF A DISTRICT COURT "SHALL BE

  SET FORTH ON A SEPARATE DOCUMENT"  WHICH, INTER ALIA, STARTS THE

  TIME LIMITS FOR APPEALS AND POST-TRIAL MOTIONS RUNNING, IS A

  MECHANICAL PROVISION THAT MUST BE MECHANICALLY APPLIED TO RENDER

  CERTAIN THE DATE ON WHICH A JUDGMENT IS ENTERED. 


THE GOVERNMENT, PETITIONER HERE, APPEALED TO THE COURT OF APPEALS
FROM A JUDGMENT IN FAVOR OF RESPONDENT ENTERED BY THE DISTRICT COURT ON
FEBRUARY 25, 1971.  THE COURT OF APPEALS DISMISSED THE APPEAL, HOLDING
THAT FINAL JUDGMENT HAD BEEN ENTERED IN THE ACTION PRIOR TO FEBRUARY
25, 1971, AND THAT THEREFORE THE GOVERNMENT'S APPEAL WAS UNTIMELY UNDER
THE PROVISIONS OF FEB. RULE APP. PROC. 4.  FOILES V. UNITED STATES, 465
F.2D 163 (CA7 1972).  SINCE BOTH PARTIES IMPLICITLY CONCEDE THAT THE
JURISDICTION OF THE COURT OF APPEALS WAS BASED ON THE PROVISIONS OF 28
U.S.C. ^ 1291, MAKING FINAL DECISIONS OF THE DISTRICT COURTS
APPEALABLE, THE CORRECTNESS OF THE COURT OF APPEALS' DECISION DEPENDS
ON WHETHER THE DISTRICT COURT'S JUDGMENT OF FEBRUARY 25, 1971, WAS A
FINAL DECSION.  /1/  THAT QUESTION, IN TURN, DEPENDS ON WHETHER ACTIONS
TAKEN IN THE DISTRICT COURT PREVIOUS TO THE FEBRUARY DATE AMOUNTED TO
THE "ENTRY OF JUDGMENT" AS THAT TERM IS USED IN FED. RULE CIV. PROC.
58.  /2/ 

[[HC217'(ORIGINAL DOCUMENT PAGE 217)' 

RULE 58 PROVIDES IN PERTINENT PART THAT "(EVERY JUDGMENT SHALL BE
SET FORTH ON A SEPARATE DOCUMENT."  THERE WAS ADMITTEDLY NO SUCH
SEPARATE DOCUMENT FILED IN THE DISTRICT COURT IN THIS CASE PRIOR TO THE
FEBRUARY DATE, BUT THE COURT OF APPEALS HELD THAT THE "SEPARATE
DOCUMENT" REQUIREMENT OF RULE 58 WAS APPLICABLE ONLY TO THOSE JUDGMENTS
DESCRIBED IN CLAUSE (2) OF THE FIRST SENTENCE OF THE RULE, AND THAT
SINCE THE RELIEF GRANTED BY THE DISTRICT COURT IN THIS ACTION WAS NOT
WITHIN THE DESCRIPTION CONTAINED IN THAT CLAUSE, A "SEPARATE DOCUMENT"
WAS NOT ESSENTIAL TO THE EXISTENCE OF A JUDGMENT.  THE COURT OF APPEALS
STATED IN ITS OPINION THAT ITS HOLDING WAS CONTRARY TO HOLDINGS OF THE
COURTS OF APPEALS FOR THE THIRD, FIFTH, AND TENTH CIRCUITS,
RESPECTIVELY.  465 F.2D, AT 167.  /3/  A CONFLICT ON AN ISSUE SUCH AS
THIS IS OF IMPORTANCE AND CONCERN TO EVERY LITIGAT IN A FEDERAL COURT,
SINCE, AS THIS CASE MAKES CLEAR, THE TIMELINESS OF APPEALS, AS WELL AS
THE TIMELINESS OF POST-TRIAL MOTIONS, MAY TURN ON THE QUESTION OF WHEN
JUDGMENT IS ENTERED. 

[[HC218'(ORIGINAL DOCUMENT PAGE 218)'  CONSIDERATION OF THE PETITION
FOR CERTIORARI AND THE RESPONSE HAS LED US TO CONCLUDE THAT FURTHER
BRIEFS AND ORAL ARGUMENTS WOULD NOT MATERIALLY ASSIST IN OUR
DISPOSITION OF THE CASE AND, FOR THE REASONS HEREAFTER STATED, WE GRANT
CERTIORARI AND REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

THE UNDERLYING DISPUTE BETWEEN THE GOVERNMENT AND RESPONDENT RELATED
TO THE LATTER'S LIABILITY TO PAY WITHHOLDING TAXES DUE FROM A
CORPORATION IN WHICH HE WAS AN OFFICER.  RESPONDENT AND ONE FOILES, A
FELLOW CORPORATE OFFICER, WERE ASSESSED FOR THE UNPAID TAXES, MADE
PARTIAL PAYMENTS ON THE ASSESSMENTS, AND THEN UNSUCCESSFULLY PURSUED
ADMINISTRATIVE REMEDIES SEEKING A REFUND.  AT THE CONCLUSION OF THESE
EFFORTS FOILES SUED IN THE DISTRICT COURT FOR A REFUND.  THE GOVERNMENT
ANSWERED, COUNTER-CLAIMED AGAINST FOILES FOR THE BALANCE DUE ON THE
ASSESSMENT, AND FILED A THIRD-PARTY COMPLAINT SEEKING LIKE RECOVERY
AGAINST RESPONDENT.  ISSUE WAS JOINED, TRIAL HAD TO A JURY, AND
VERDICTS IN THE FOLLOWING FORM WERE RETURNED IN FAVOR OF BOTH
TAXPAYERS: 

"WE, THE JURY, FIND FOR THE PLAINTIFF, HARRY H. FOILES, AND AGAINST
THE DEFENDANT, UNITED STATES OF AMERICA, IN THE AMOUNT CLAIMED.  . . 

     "WE, THE JURY, FIND AGAINST THE DEFENDANT, UNITED STATES OF

  AMERICA, ON THE COUNTERCLAIM, AND IN FAVOR OF THE PLAINTIFF,

 HARRY H. FOILES.  . . 

     "WE, THE JURY, FIND AGAINST THE THIRD-PARTY PLAINTIFF, UNITED

  STATES OF AMERICA, AND IN FAVOR OF THE THIRD-PARTY DEFENDANT,

  ALPHONSE T. INDRELUNAS." 

THE DISTRICT COURT'S CIVIL DOCKET ENTRY FOLLOWING THE RECITAL OF THESE
FORMS OF VERDICT CONTAINS THE LANGUAGE "ENTER JUDGMENT ON THE
VERDICTS. 

[[HC219'(ORIGINAL DOCUMENT PAGE 219)'  JURY DISCHARGED." 

THERE WAS APPARENTLY NO AGREEMENT AS TO THE EXACT AMOUNT RESPONDENT
AND FOILES WERE TO RECEIVE PURSUANT TO THE JURY'S VERDICT AT THE TIME
IT WAS RETURNED.  ON MAY 14, 1970, SOME 14 MONTHS LATER, A STIPULATION
WAS FILED IN THE DISTRICT COURT SPECIFYING THE AMOUNT OF REFUND TO BE
PAID TO EACH OF THE PREVAILING PARTIES.  WITHIN 60 DAYS OF THIS DATE,
THE GOVERNMENT FILED A NOTICE OF APPEAL AS TO FOILES ONLY, BUT THIS
APPEAL WAS NOT PURSUED.  SOME EIGHT MONTHS LATER, ON MOTION BY THE
GOVERNMENT, THE DISTRICT COURT ON FEBRUARY 25, 1971, ENTERED FORMAL
JUDGMENTS, THE ONE IN FAVOR OF RESPONDENT BEING IN THE AMOUNT OF
$3,621.32 AGAINST THE GOVERNMENT.  THE GOVERNMENT'S NOTICE OF APPEAL
WAS FROM THIS JUDGMENT. 

THE COURT OF APPEALS, IN HOLDING THE GOVERNMENT'S NOTICE OF APPEAL
UNTIMELY, DECIDED THAT JUDGMENT HAD BEEN ACTUALLY ENTERED ON MARCH 21,
1969, WHEN THE DISTRICT COURT CLERK ENTERED IN THE CIVIL DOCKET THE
NOTATIONS DESCRIBED ABOVE.  IT HELD THAT THE "SEPARATE DOCUMENT"
REQUIREMENT CONTAINED IN RULE 58 APPLIES ONLY TO THE "COMPLEX"
JUDGMENTS DESCRIBED IN CLAUSE (2) OF THAT RULE.  THE COURT SAID THAT: 

"(WHEN THE JURY VERDICT IS CLEAR AND UNEQUIVOCAL, SETTING FORTH A
GENERAL VERDICT WITH REFERENCE TO THE SOLE QUESTION OF LIABILITY AND
WHERE NOTHING REMAINS TO BE DECIDED AND WHEN NO OPINION OR MEMORANDUM
IS WRITTEN, AS IS THE SITUATION DESCRIBED IN CLAUSE (1) OF RULE 58,
THERE IS NO REQUIREMENT FOR A SEPARATE DOCUMENT TO START THE TIME
LIMITS FOR APPEAL RUNNING."  465 F.2D, AT 167 - 168. 

RULE 58 WAS SUBSTANTIALLY AMENDED IN 1963 TO REMOVE UNCERTAINTIES AS
TO WHEN A JUDGMENT IS ENTERED AND TO EXPEDITE THE ENTRY OF JUDGMENT BY
LIMITING THE NUMBER OF SITUATIONS IN WHICH THE COURT NEED RELY ON
COUNSEL FOR THE PREVAILING PARTY TO PREPARE A FORM OF JUDGMENT. 

[[HC220'(ORIGINAL DOCUMENT PAGE 220)'  THE FIRST SENTENCE OF THE
RULE DESCRIBES "SIMPLE" JUDGMENTS, PROVIDING FOR RECOVERY OF ONLY A SUM
CERTAIN, OF COSTS, OR OF NOTHING.  THESE CLAUSE (1) JUDGMENTS ARE TO BE
PREPARED, SIGNED, AND ENTERED BY THE CLERK WITHOUT DIRECTION BY THE
COURT.  CLAUSE (2) OF THAT SENTENCE DEALS WITH THE MORE "COMPLEX" FORMS
OF JUDGMENT, WHICH ARE TO BE ENTERED BY THE CLERK AFTER THE COURT
APPROVES THE FORM OF THE JUDGMENT.  THE RULE THEN CONTINUES THAT
"(EVERY JUDGMENT SHALL BE SET FORTH ON A SEPARATE DOCUMENT," AND
FURTHER STATES THAT "(A) JUDGMENT IS EFFECTIVE ONLY WHEN SO SET FORTH
AND WHEN ENTERED AS PROVIDED IN RULE 79 (A)." 

THE REASON FOR THE "SEPARATE DOCUMENT" PROVISION IS CLEAR FROM THE
NOTES OF THE ADVISORY COMMITTEE OF THE 1963 AMENDMENT.  SEE NOTES OF
ADVISORY COMMITTEE FOLLOWING FED. RULE CIV. PROC. 58, REPORTED IN 28
U.C.C. PRIOR TO 1963, THERE WAS CONSIDERABLE UNCERTAINTY OVER WHAT
ACTIONS OF THE DISTRIC COURT WOULD CONSITUTE AN ENTRY OF JUDGMENT, AND
OCCASIONAL GRIEF TO LITIGANTS AS A RESULT OF THIS UNCERTAINTY.  SEE, E.
G., UNITED STATES V. F. & M. SCHAEFER BREWING CO., 356 U.S. 227
(1958).  TO ELIMINATE THESE UNCERTAINTIES, WHICH SPAWNED PROTRACTED
LITIGATION OVER A TECHNICAL PROCEDURAL MATTER, RULE 58 WAS AMENDED TO
REQUIRE THAT A JUDGMENT WAS TO BE EFFECTIVE ONLY WHEN SET FORTH ON A
SEPARATE DOCUMENT. 

PROFESSOR MOORE MAKES THE FOLLOWING COGENT OBSERVATION WITH RESPECT
TO THE PURPOSE OF THE SEPARATE-DOCUMENT PROVISION OF THE RULE: 

"THIS REPRESENTS A MECHANICAL CHANGE THAT WOULD BE SUBJECT TO
CRITICISM FOR ITS FORMALISM WERE IT NOT FOR THE FACT THAT SOMETHING
LIKE THIS WAS NEEDED TO MAKE CERTAIN WHEN A JUDGMENT BECOMES EFFECTIVE,
WHICH HAS A MOST IMPORTANT BEARING, INTER ALIA, ON THE TIME FOR APPEAL
AND THE MAKING OF POST-JUDGMENT MOTIONS THAT GO TO THE FINALITY OF THE
JUDGMENT FOR PURPOSES OF APPEAL." 

[[HC221'(ORIGINAL DOCUMENT PAGE 221)'

  6A J. MOORE, FEDERAL PRACTICE PARA. 58.04(4.  - 2), AT 58 - 161
(1972).  AGAIN IN THE SAME WORK, THE AUTHOR NOTES: 

     "ALTHOUGH CONFUSION MAY STILL ARISE AT TIMES, THE CURRENT

  VERSION OF RULE 58 PROVIDES A GREATER DEGRESS OF CERTAINTY AS TO

WHEN A JUDGMENT HAS BEEN RENDERED AND BECOMES EFFECTIVE.  THUS,

  AS PREVIOUSLY POINTED OUT, WHEN THE COURT'S DECISION, WHETHER

  WRITTEN OR ORAL, IS A SIMPLE GRANT OF A SUM CERTAIN OR COSTS OR

  THAT ALL RELIEF BE DENIED, THE CLERK IS TO PREPARE FORTHWITH AND

  SIGN A JUDGMENT WHICH MUST BE SET FORTH ON A SEPARATE DOCUMENT. 

  THEREAFTER, THE CLERK IS IMMEDIATELY TO ENTER THE JUDGMENT IN THE

  CIVIL DOCKET."  ID., AT 58 - 180. 

HERE THERE WAS NOTHING MEETING THE REQUIREMENT OF THE "SEPARATE
DOCUMENT" PROVISION OF RULE 58 UNTIL FEBRUARY 25, 1971.  THE DOCKET 

THE COURT OF APPEALS APPEARS TO HAVE BEEN MOTIVATED IN ITS
CONCLUSION, AT LEAST IN PART, BY WHAT IT FELT TO HAVE BEEN THE
CAPRICIOUS CONDUCT OF THE GOVERNMENT IN FIRST SEEKING TO APPEAL
FOLLOWING THE FILING OF THE STIPULATION FOR DAMAGES, AND THEN LATER
INSISTING THAT AT THAT TIME THERE HAD BEEN NO JUDGMENT WHICH IT COULD
HAVE APPEALED FROM.  BUT WHATEVER MAY BE THE APPROPRIATE SANCTIONS
AVAILABLE IN A PARTICULAR CASE FOR CAPRICIOUS CONDUCT ON THE PART OF A
LITIGANT, WE DO NOT BELIEVE THAT A CASE-BY-CASE TAILORING OF THE
"SEPARATE DOCUMENT" PROVISION OF RULE 58 IS ONE OF THEM.  THAT
PROVISION IS, AS PROFESSOR MOORE STATES, A "MECHANICAL CHANGE" THAT
MUST BE MECHANICALLY APPLIED IN ORDER TO AVOID NEW UNCERTAINTIES AS TO
THE DATE ON WHICH A JUDGMENT IS ENTERED. 

[[HC222'(ORIGINAL DOCUMENT PAGE 222)' 

WE GRANT THE PETITION FOR CERTIORARI, REVERSE THE JUDGMENT OF THE
COURT OF APPEALS, AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED 

/1/  FED. RULE DIV. PROC. 54(A) PROVIDES IN PART THAT "'(JUDGMENT'
AS USED IN THESE RULES INCLUDES A DECREE AND ANY ORDER FROM WHICH AN
APPEAL LIES." 

/2/  RULE 58 PROVIDES: 

"SUBJECT TO THE PROVISIONS OF RULE 54(B):  (1) UPON A GENERAL
VERDICT OF A JURY, OR UPON A DECISION BY THE COURT THAT A PARTY SHALL
RECOVER ONLY A SUM CERTAIN OR COSTS OR THAT ALL RELIEF SHALL BE DENIED,
THE CLERK, UNLESS THE COURT OTHERWISE ORDERS, SHALL FORTHWITH PREPARE,
SIGN, AND ENTER THE JUDGMENT WITHOUT AWAITING ANY DIRECTION BY THE
COURT; (2) UPON A DECISION BY THE COURT GRANTING OTHER RELIEF, OR UPON
A SPECIAL VERDICT OR A GENERAL VERDICT ACCOMPANIED BY ANSWERS TO
INTERROGATORIES, THE COURT SHALL PROMPTLY APPROVE THE FORM OF THE
JUDGMENT, AND THE CLERK SHALL THEREUPON ENTER IT. EVERY JUDGMENT SHALL
BE SET FORTH ON A SEPARATE DOCUMENT.  A JUDGMENT IS EFFECTIVE ONLY WHEN
SO SET FORTH AND WHEN ENTERED AS PROVIDED IN RULE 79(A).  ENTRY OF THE
JUDGMENT SHALL NOT BE DELAYED FOR TAXING OF COSTS.  ATTORNEYS SHALL NOT
SUBMIT FORMS OF JUDGMENT EXCEPT UPON DIRECTION OF THE COURT, AND THESE
DIRECTIONS SHALL NOT BE GIVEN AS A MATTER OF COURSE." 

/3/  SEE LEVIN V. WEAR-EVER ALUMINUM, 427 F.2D 847 (CA3 1970); PURE
OIL CO. V. BOYNE, 370 F.2D 121 (CA5 1966); UNITED STATES V. EVANS, 365
F.2D 95 (CA10 1966).  THE DECISION MAY ALSO CONFLICT WITH A RECENT
FOURTH CIRCUIT CASE.  SUPERIOR LIFE INSURANCE CO. V. UNITED STATES, 462
F.2D 945 (CA4 1972). 
..END :

















LEMON V. KURTZMAN, 411 U.S. 192 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF PENNSYLVANIA 

     NO. 71 - 1470.  ARGUED NOVEMBER 8, 1972--DECIDED APRIL 2,
1973; 348 F.SUPP.  300, AFFIRMED. 


    FOLLOWING THIS COURT'S INVALIDATION IN LEMON V. KURTZMAN, 403

  U.S. 602 (LEMON I) OF PENNSYLVANIA'S STATUTORY PROGRAM TO

  REIMBURSE NONPUBLIC SECTARIAN SCHOOLS (HEREAFTER SCHOOLS) FOR

  SECULAR EDUCATIONAL SERVICES, THE DISTRICT COURT ON REMAND

  ENJOINED ANY PAYMENTS UNDER THE PROGRAM FOR SERVICES RENDERED

  AFTER LEMON I, BUT PERMITTED PENNSYLVANIA TO REIMBURSE THE

  SCHOOLS FOR SERVICES PERFORMED PRIOR TO THAT DECISION. 

  APPELLANTS CHALLENGE THE SCOPE OF THIS DECREE.  HELD:  THE

  JUDGMENT IS AFFIRMED.  PP. 193 - 209. 

      THE CHIEF JUSTICE, IN AN OPINION JOINED BY MR. JUSTICE MR.

  JUSTICE POWELL, AND MR. JUSTICE REHNQUIST CONCLUDED THAT THE

  DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN PERMITTING

  PENNSYLVANIA TO REIMBURSE THE SCHOOLS FOR SERVICES RENDERED AND

  COSTS INCURRED IN RELIANCE ON THE STATUTORY SCHEME PRIOR TO ITS

  INVALIDATION IN LEMON I. PP. 197 - 209. 

     (A) AN UNCONSTITUTIONAL STATUTE IS NOT ABSOLUTELY VOID, BUT IS

  A PRACTICAL REALITY UPON WHICH PEOPLE RELY.  COURTS RECOGNIZE

  THAT REALITY.  PP. 197 - 199. 

     (B) A TRIAL COURT HAS WIDE LATITUDE IN SHAPING AN EQUITABLE

  DECREE AND REACHING AN ACCOMMODATION BETWEEN PUBLIC AND PRIVATE

  NEEDS.  PP. 200 - 201. 

     (C) THE CONTESTED REIMBURSEMENT WILL NOT CONTRAVENE THE

  CONSTITUTIONAL PRINCIPLE OF LEMON I OF AVOIDING THE ONGOING

ENTANGLEMENT OF CHURCH AND STATE, SINCE ONLY A FINAL, MINISTERIAL

  POST-AUDIT IS INVOLVED AND NO FURTHER DETAILED STATE SURVEILLANCE

  OF THE SCHOOLS IS REQUIRED.  AT THE SAME TIME, HOWEVER,

  SUPERVISION ALREADY CONDUCTED BY PENNSYLVANIA OFFICIALS INSURES

  THAT THE PROPOSED REIMBURSEMENT WILL NOT BE USED FOR SECTARIAN

  PURPOSES.  THE PROPOSED PAYMENT REFLECTS ONLY THE SCHOOLS'

  EXPENSES INCURRED IN EXPECTATION OF REIMBURSEMENT.  PP. 201 -

  202. 

     (D) THE SCHOOLS RELIED IN GOOD FAITH ON THE STATE STATUTE,

WHICH INVITED THE CONTRACTS AND AUTHORIZED REIMBURSEMENT FOR PAST

  SERVICES; AND APPELLANTS, IN SELF-STYLED "SENSIBLE RECOGNITION OF

  THE PRACTICAL REALITIES OF THE SITUATION," MAY WELL HAVE

  ENCOURAGED SUCH RELIANCE BY THE SCHOOLS BY NOT MOVING TO HAVE THE

  PAYMENTS ENJOINED BEFORE THE CONTRACT SERVICES HAD BEEN

  PERFORMED. 

[[HC193'(ORIGINAL DOCUMENT PAGE 193)'

  PP. 203 - 205. 

     (E) THE SCHOOLS COULD NOT HAVE ANTICIPATED THE LEMON I
HOLDING,

WHICH INVOLVED RESOLUTION OF AN ISSUE OF FIRST IMPRESSION THAT

  "WAS NOT CLEARLY FORESHADOWED."  PP. 206 - 207. 

 (F) A STATE AND THOSE WITH WHOM IT DEALS ARE NOT TO BE

SUBJECTED TO HARSH, RETROSPECTIVE RELIEF MERELY BECAUSE THEY ACT

  ON THE BASIS OF PRESUMPTIVELY VALID LEGISLATION, IN THE ABSENCE

  OF CONTRARY JUDICIAL DIRECTION.  PP. 207 - 209. 

     MR. JUSTICE WHITE CONCURRED IN THE JUDGMENT.  BURGER, C.J.,

  ANNOUNCED THE JUDGEMENT OF THE COURT AND AN OPINION IN WHICH

  BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  WHITE, J.,

  CONCURRED IN THE JUDGMENT.  DOUGLAS, J., FILED A DISSENTING

  OPINION, IN WHICH BRENNAN AND STEWART, JJ., JOINED, POST, P.

  209.  MARSHALL, J., TOOK NO PART IN THE CONSIDERATION OR DECISION

  OF THE CASE. 

MR. CHIEF JUSTICE BURGER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, AND MR.
JUSTICE REHNQUIST JOIN. 

ON JUNE 28, 1971, WE HELD THAT THE PENNSYLVANIA STATUTORY PROGRAM TO
REIMBURSE NONPUBLIC SECTARIAN SCHOOLS FOR CERTAIN SECULAR EDUCATIONAL
SERVICES VIOLATED THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT.  THE
CASE WAS REMANDED TO THE THREE-JUDGE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH OUR OPINION. 

[[HC194'(ORIGINAL DOCUMENT PAGE 194)'  LEMON V. KURTZMAN, 403 U.S.
602 (1971) (LEMON I).  ON REMAND, THE DISTRICT COURT ENTERED SUMMARY
JUDGMENT IN FAVOR OF APPELLANTS AND ENJOINED PAYMENT, UNDER ACT 109, OF
ANY STATE FUNDS TO NONPUBLIC SECTARIAN SCHOOLS FOR EDUCATIONAL SERVICES
PERFORMED AFTER JUNE 28, 1971.  THE DISTRICT COURT'S ORDER PERMITTED
THE STATE TO REIMBURSE NONPUBLIC SECTARIAN SCHOOLS FOR SERVICES
PROVIDED BEFORE OUR DECISION IN LEMON I. APPELLANTS MADE NO CLAIM THAT
APPELLEES REFUND ALL SUMS PAID UNDER THE PENNSYLVANIA STATUTE /1/
STRUCK DOWN IN LEMON I. 

APPELLANTS, THE SUCCESSFUL PLAINTIFFS OF LEMON I, NOW CHALLENGE THE
LIMITED SCOPE OF THE DISTRICT COURT'S INJUNCTION.  SPECIFICALLY, THEY
ASSERT THAT THE DISTRICT COURT ERRED IN REFUSING TO ENJOIN PAYMENT OF
SOME $24 MILLION SET ASIDE BY PENNSYLVANIA TO COMPENSATE NONPUBLIC
1970 - 1971 SCHOOL YEAR.  WE NOTED PROBABLE JURISDICTION, 406 U.S. 943
(1972), AND WE AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

        (1) 

THE SPECIFICS OF THE PENNSYLVANIA STATUTORY SCHEME HELD
UNCONSTITUTIONAL IN LEMON I NEED BE RECALLED ONLY BRIEFLY.  UNDER ACT
109, THE PARTICIPATING NONPUBLIC SCHOOLS OF PENNSYLVANIA WERE TO BE
REIMBURSED BY THE STATE FOR CERTAIN EDUCATIONAL SERVICES PROVIDED BY
THE SCHOOLS PURSUANT TO PURCHASE-OF-SERVICE CONTRACTS WITH THE STATE. 
ACCORDING TO THE TERMS OF THE CONTRACTS, THE SCHOOLS WERE TO PROVIDE
TEACHERS, TEXTBOOKS, AND INSTRUCTIONAL MATERIALS FOR MATHEMATICS,
MODERN FOREIGN LANGUAGE, PHYSICAL SCIENCE, AND PHYSICAL EDUCATION
COURSES--"SECULAR" COURSES OF INSTRUCTION.  THE STATE WAS NOT ONLY TO
COMPENSATE THE SCHOOLS FOR THE SERVICES PROVIDED, BUT ALSO TO UNDERTAKE
CONTINUING SURVEILLANCE OF THE INSTRUCTIONAL PROGRAMS TO INSURE THAT
THE SERVICES PURCHASED WERE NOT PROVIDED IN CONNECTION WITH "ANY
SUBJECT MATTER EXPRESSING RELIGIOUS TEACHING, OR THE MORALS OR FORMS OF
WORSHIP OF ANY SECT." 

[[HC195'(ORIGINAL DOCUMENT PAGE 195)'  SEE LEMON I, SUPRA, AT 609 -
610. 

UNDER ^ 5607 OF THE ACT, ANY NONPUBLIC SCHOOL SEEKING REIMBURSEMENT
WAS TO "MAINTAIN SUCH ACCOUNTING PROCEDURES, INCLUDING MAINTENANCE OF
SEPARATE FUNDS AND ACCOUNTS PERTAINING TO THE COST OF SECULAR
EDUCATIONAL SERVICE, AS TO ESTABLISH THAT IT ACTUALLY EXPENDED IN
SUPPORT OF SUCH SERVICE AN AMOUNT OF MONEY EQUAL TO THE AMOUNT OF MONEY
SOUGHT IN REIMBURSEMENT."  TO THIS END, THE SCHOOL ACCOUNTS WERE TO BE
SUBJECT TO AUDIT BY THE STATE AUDITOR GENERAL.  ACTUAL PAYMENT WAS TO
BE MADE BY THE SUPERINTENDENT OF PUBLIC INSTRUCTION "IN FOUR EQUAL
INSTALLMENTS PAYABLE ON THE FIRST DAY OF SEPTEMBER, DECEMBER, MARCH AND
JUNE OF THE SCHOOL TERM FOLLOWING THE SCHOOL TERM IN WHICH THE SECULAR
EDUCATIONAL SERVICE WAS RENDERED." 

IN LEMON I, WE HELD THAT, ALTHOUGH ACT 109 HAD A SECULAR LEGISLATIVE
PURPOSE, THE ACT FOSTERED "EXCESSIVE ENTANGLEMENT" OF CHURCH SCHOOLS
AND STATE THROUGH THE REQUIREMENT OF ONGOING STATE SCRUTINY OF THE
EDUCATIONAL PROGRAMS OF SECTARIAN SCHOOLS, THE STATUTORY POST-AUDIT
PROCEDURES, AND POTENTIAL INVOLVEMENT IN THE POLITICAL PROCESS.  WE
FOUND IT UNNECESSARY TO DECIDE WHETHER ACT 109 WAS CONSTITUTIONALLY
INFIRM ON THE ADDITIONAL GROUND THAT THE "PRIMARY EFFECT" OF ANY STATE
PAYMENTS TO CHURCH-RELATED SCHOOLS WOULD BE TO PROMOTE THE CAUSE OF
RELIGION IN CONTRAVENTION OF THE ESTABLISHMENT CLAUSE OF THE FIRST
AMENDMENT. 

        (2) 

AGAINST THIS BACKDROP, WE TURN TO THE EVENTS RELEVANT TO THIS
APPEAL.  ON JUNE 19, 1968, ACT 109 BECAME LAW.  APPROXIMATELY ONE MONTH
LATER, APPELLANTS PUBLICLY DECLARED THEIR INTENTION OF CHALLENGING THE
CONSTITUTIONALITY OF THE NEW LEGISLATION. 

[[HC196'(ORIGINAL DOCUMENT PAGE 196)'  DURING THE FOLLOWING SIX
MONTHS, THE STATE TOOK STEPS TO IMPLEMENT THE ACT, PROMULGATING
REGULATIONS AND, IN JANUARY 1969, ENTERING FOR THE FIRST TIME INTO
SERVICE CONTRACTS FOR THE 1968 - 1969 SCHOOL YEAR (THEN IN PROGRESS)
WITH APPROXIMATELY 1,181 NONPUBLIC SCHOOLS THROUGHOUT PENNSYLVANIA. 
THE SCHOOLS SUBMITTED SCHEDULES IN JUNE 1969, AT THE CONCLUSION OF THE
1968 - 1969 SCHOOL YEAR, SPECIFYING THE PRECISE ITEMS OF EXPENSE DURING
THAT YEAR FOR WHICH THEY WOULD SEEK REIMBURSEMENT, TO BE MADE DURING
THE 1969 - 1970 SCHOOL YEAR.  ON JUNE 3, 1969, APPELLANTS FILED THEIR
COMPLAINT, ASKING THAT ACT 109 BE DECLARED UNCONSTITUTIONAL AND ITS
ENFORCEMENT ENJOINED. 

SIMULTANEOUSLY WITH THEIR 1969 COMPLAINT, APPELLANTS FILED A MOTION
FOR A PRELIMINARY INJUNCTION TO RESTRAIN THE RESPONSIBLE STATE
OFFICIALS FROM "PAYING OR PROCESSING FOR PAYING ANY FUNDS PURSUANT TO
(ACT 109)."  HOWEVER, APPELLANTS ABANDONED THE REQUEST FOR PRELIMINARY
RELIEF IN A LETTER OF AUGUST 28, 1969, FROM THEIR COUNSEL TO JUDGE
TROUTMAN.  APPELLANTS, DESCRIBING THEIR POSITION AS A "SENSIBLE
RECOGNITION OF THE PRACTICAL REALITIES OF THE SITUATION, . . . WITHDREW
FROM ANY ATTEMPT TO PREVENT INITIAL PAYMENT TO THE NONPUBLIC SCHOOLS
SCHEDULED FOR SEPTEMBER 2 (1969)."  IN THE SAME LETTER, APPELLANTS'
COUNSEL MENTIONED THE PAYMENTS SCHEDULED FOR DECEMBER 2, 1969, BUT IN
FACT NO ATTEMPT WAS EVER MADE TO ENJOIN THOSE REIMBURSEMENTS. 

ON NOVEMBER 29, 1969, A DIVIDED DISTRICT COURT GRANTED APPELLEES'
MOTION TO DISMISS APPELLANTS' COMPLAINT FOR FAILURE TO STATE A CLAIM ON
WHICH RELIEF COULD BE GRANTED.  APPELLANTS FILED A NOTICE OF APPEAL TO
THIS COURT ON DECEMBER 17, 1969; AT NO TIME BEFORE OR AFTER PROBABLE
JURISDICTION WAS NOTED ON APRIL 20, 1970, DID APPELLANTS MOVE FOR
INTERLOCUTORY RELIEF PENDING APPEAL, EVEN THOUGH ON JANUARY 15, 1970,
THE SCHOOLS ENTERED INTO SERVICE CONTRACTS WITH THE STATE FOR THE 1969
1970 SCHOOL YEAR.  CONSEQUENTLY, THE DISTRICT COURT HAD NO OCCASION TO
CONSIDER THE EXERCISE OF INJUNCTIVE POWER PENDENTE LITE. 

[[HC197'(ORIGINAL DOCUMENT PAGE 197)' 

IN SEPTEMBER 1970, THE SCHOOLS BEGAN PERFORMING SERVICES FOR THE
1970 - 1971 SCHOOL YEAR, COMPENSABLE UNDER THE TERMS OF ACT 109; AND ON
JANUARY 15, 1971, CONTRACTS WERE ENTERED INTO FOR THAT SCHOOL YEAR.  ON
JUNE 28, 1971, WE HELD ACT 109 UNCONSTITUTIONAL AND REMANDED THE CAUSE
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH OUR
OPINION.  NOT UNTIL APPELLANTS FILED THEIR MOTION FOR SUMMARY JUDGMENT,
IN AUGUST 1971, DID THEY FIRST INDICATE THEIR INTENTION TO PREVENT
REIMBURSEMENT UNDER ACT 109 FOR THE SERVICES ALREADY PROVIDED BY THE
SCHOOLS DURING THE 1970 - 1971 SCHOOL YEAR. 

        (3) 

CLAIMS THAT A PARTICULAR HOLDING OF THE COURT SHOULD BE APPLIED
RETROACTIVELY HAVE BEEN PRESSED ON US FREQUENTLY IN RECENT YEARS.  MOST
OFTEN, WE HAVE BEEN CALLED UPON TO DECIDE WHETHER A DECISION DEFINING
NEW CONSTITUTIONAL RIGHTS OF A DEFENDANT IN A CRIMINAL CASE SHOULD BE
APPLIED TO CONVICTIONS OF OTHERS THAT PREDATED THE NEW CONSTITUTIONAL
DEVELOPMENT.  E. G., ROBINSON V. NEIL, 409 U.S. 505 (1973); ADAMS V.
ILLINOIS, 405 U.S. 278 (1972); DESIST V. UNITED STATES, 394 U.S. 244
(1969); STOVALL V. DENNO, 388 U.S. 293 (1967); JOHNSON V. NEW JERSEY,
384 U.S. 719 (1966); TEHAN V. SHOTT, 382 U.S. 406 (1966); LINKLETTER V.
WALKER, 381 U.S. 618 (1965).  BUT "IN THE LAST FEW DECADES, WE HAVE
RECOGNIZED THE DOCTRINE OF NONRETROACTIVITY OUTSIDE THE CRIMINAL AREA
MANY TIMES, IN BOTH CONSTITUTIONAL AND NONCONSTITUTIONAL CASES." 
CHEVRON OIL CO. V. HUSON, 404 U.S. 97, 106 (1971); HANOVER SHOE V.
UNITED SHOE MACHINERY CORP., 392 U.S. 481 (1968); SIMPSON V. UNION OIL
CO., 377 U.S. 13 (1964); ENGLAND V. STATE BOARD OF MEDICAL EXAMINERS,
375 U.S. 411 (1964).  WE HAVE APPROVED NONRETROACTIVE RELIEF IN CIVIL
LITIGATION, RELATING, FOR EXAMPLE, TO THE VALIDITY OF MUNICIPAL
FINANCING FOUNDED UPON ELECTORAL PROCEDURES LATER DECLARED
UNCONSTITUTIONAL, CIPRIANO V. CITY OF HOUMA, 395 U.S. 701 (1969), AND
CITY OF PHOENIX V. KOLODZIEJSKI, 399 U.S. 204 (1970); OR TO THE
VALIDITY OF ELECTIONS FOR LOCAL OFFICIALS HELD UNDER POSSIBLY
DISCRIMINATORY VOTING LAWS, ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S.
544 (1969). 

[[HC198'(ORIGINAL DOCUMENT PAGE 198)'  IN EACH OF THESE CASES, THE
COMMON REQUEST WAS THAT WE SHOULD REACH BACK TO DISTRUB OR TO ATTACH
LEGAL CONSEQUENCE TO PATTERNS OF CONDUCT PREMISED EITHER ON UNLAWFUL
STATUTES OR ON A DIFFERENT UNDERSTANDING OF THE CONTROLLING JUDGE-MADE
LAW FROM THE RULE THAT ULTIMATELY PREVAILED. 

APPELLANTS URGE, AS THEY DID IN THE DISTRICT COURT, A STRANGE
AMALGAM OF FLEXIBILITY AND ABSOLUTISM.  APPELLANTS ASSURE US THAT THEY
DO NOT SEEK TO REQUIRE THE SCHOOLS TO DISGORGE PRIOR PAYMENTS RECEIVED
UNDER ACT 109; IN THE SAME BREATH, APPELLANTS INSIST THAT THE PRESENTLY
DISPUTED PAYMENT BE ENJOINED BECAUSE AN UNCONSTITUTIONAL STATUTE
"CONFERS NO RIGHTS; IT IMPOSES NO DUTIES; IT AFFORDS NO PRETECTION; IT
CREATES NO OFFICE; IT IS, IN LEGAL CONTEMPLATION, AS INOPERATIVE AS
THOUGH IT HAD NEVER BEEN PASSED."  NORTON V. SHELBY COUNTY, 118 U.S.
425, 442 (1886).  CONCEDING THAT WE HAVE RECEDED FROM NORTON IN A HOST
OF CRIMINAL DECISIONS AND IN OTHER RECENT CONSTITUTIONAL DECISIONS
RELATING TO MUNICIPAL BONDS, APPELLANTS NEVERTHELESS VIEW THOSE
PRECEDENTS AS DEPARTURES FROM THE ESTABLISHED NORM OF NORTON.  WE
DISAGREE. 

THE PROCESS OF RECONCILING THE CONSTITUTIONAL INTERESTS REFLECTED IN
A NEW RULE OF LAW WITH RELIANCE INTERESTS FOUNDED UPON THE OLD IS
"AMONG THE MOST DIFFICULT OF THOSE WHICH HAVE ENGAGED THE ATTENTION OF
COURTS, STATE AND FEDERAL . . . ."  CHICOT COUNTY DRAINAGE DIST. V.
BAXTER STATE BANK, 308 U.S. 371, 374 (1940).  CONSEQUENTLY, OUR
HOLDINGS IN RECENT YEARS HAVE EMPHASIZED THAT THE EFFECT OF A GIVEN
CONSTITUTIONAL RULING ON PRIOR CONDUCT "IS SUBJECT TO NO SET 'PRINCIPLE
OF ABSOLUTE RETROACTIVE INVALIDITY' BUT DEPENDS UPON A CONSIDERATION OF
'PARTICULAR RELATIONS . . . AND PARTICULAR CONDUCT . . . OF RIGHTS
CLAIMED TO HAVE BECOME VESTED, OF STATUS, OF PRIOR DETERMINATIONS
DEEMED TO HAVE FINALITY'; AND 'OF PUBLIC POLICY IN THE LIGHT OF THE
NATURE BOTH OF THE STATUTE AND OF ITS PREVIOUS APPLICATION.'" 

[[HC199'(ORIGINAL DOCUMENT PAGE 199)'  LINKLETTER, SUPRA, AT 627,
QUOTING FROM CHICOT COUNTY DRAINAGE DIST., SUPRA, AT 374.  HOWEVER
APPEALING THE LOGIC OF NORTON MAY HAVE BEEN IN THE ABSTRACT, ITS
ABANDONMENT REFLECTED OUR RECOGNITION THAT STATUTORY OR EVEN JUDGE-MADE
RULES OF LAW ARE HARD FACTS ON WHICH PEOPLE MUST RELY IN MAKING
DECISIONS AND IN SHAPING THEIR CONDUCT.  THIS FACT OF LEGAL LIFE
UNDERPINS OUR MODERN DECISIONS RECOGNIZING A DOCTRINE OF
NONRETROACTIVITY.  APPELLANTS OFFER NO PERSUASIVE REASON FOR CONFINING
THE MODERN APPROACH TO THOSE CONSTITUTIONAL CASES INVOLVING CRIMINAL
PROCEDURE OR MUNICIPAL BONDS, AND WE OURSELVES PERCEIVE NONE. 

IN LINKLETTER, THE COURT SUGGESTED A TEST, OFTEN REPEATED SINCE,
EMBODYING THE RECENT BALANCING APPROACH; WE LOOKED TO "THE PRIOR
HISTORY OF THE RULE IN QUESTION, ITS PURPOSE AND EFFECT, AND WHETHER
RETROSPECTIVE OPERATION WILL FURTHER OR RETARD ITS OPERATION."  ID., AT
629.  THOSE GUIDELINES ARE HELPFUL, SEE INFRA, AT 201 - 203, BUT THE
PROBLEM OF LINKLETTER AND ITS PROGENY IS NOT PRECISELY THE SAME AS THAT
NOW BEFORE US.  HERE, WE ARE NOT CONSIDERING WHETHER WE WILL APPLY A
NEW CONSTITUTIONAL RULE OF CRIMINAL LAW IN REVIEWING JUDGMENTS OF
CONVICTION OBTAINED UNDER A PRIOR STANDARD; THE PROBLEM OF THE INSTANT
CASE IS ESSENTIALLY ONE RELATING TO THE APPROPRIATE SCOPE OF FEDERAL
EQUITABLE REMEDIES, A PROBLEM ARISING FROM ENFORCEMENT OF A STATE
STATUTE DURING THE PERIOD BEFORE IT HAD BEEN DECLARED
UNCONSTITUTIONAL.  TRUE, THE TEMPORAL SCOPE OF THE INJUNCTION HAS
BROUGHT THE PARTIES BACK TO THIS COURT, AND THEIR DISPUTE CALLS INTO
PLAY VALUES NOT UNLIKE THOSE UNDERLYING LINKLETTER AND ITS PROGENY. 
BUT HOWEVER WE STATE THE ISSUE, THE FACT REMAINS THAT WE ARE ASKED TO
REEXAMINE THE DISTRICT COURT'S EVALUATION OF THE PROPER MEANS OF
IMPLEMENTING AN EQUITABLE DECREE. 

[[HC200'(ORIGINAL DOCUMENT PAGE 200)'  C.F UNITED STATES V. ESTATE
OF DONNELLY, 397 U.S. 286, 295 (1970); ID., AT 296 - 297 (HARLAN, J.,
CONCURRING). 

IN SHAPING EQUITY DECREES, THE TRIAL COURT IS VESTED WITH BROAD
DISCRETIONARY POWER; APPELLATE REVIEW IS CORRESPONDINGLY NARROW.  SWANN
V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1, 15, 27 N. 10
(1971).  MOREOVER, IN CONSTITUTIONAL ADJUDICATION AS ELSEWHERE,
EQUITABLE REMEDIES ARE A SPECIAL BLEND OF WHAT IS NECESSARY, /2/  WHAT
IS FAIR, AND WHAT IS WORKABLE.  "TRADITIONALLY, EQUITY HAS BEEN
CHARACTERIZED BY A PRACTICAL FLEXIBILITY IN SHAPING ITS REMEDIES AND BY
A FACILITY FOR ADJUSTING AND RECONCILING PUBLIC AND PRIVATE NEEDS." 
BROWN V. BOARD OF EDUCATION, 349 U.S. 294, 300 (1955).  MR. JUSTICE
DOUGLAS, SPEAKING FOR THE COURT, HAS SAID,     "THE ESSENCE OF EQUITY
JURISDICTION HAS BEEN THE POWER OF THE CHANCELLOR TO DO EQUITY AND TO
MOULD EACH DECREE TO THE NECESSITIES OF THE PARTICULAR CASE. 
FLEXIBILITY RATHER THAN RIGIDITY HAS DISTINGUISHED IT.  THE QUALITIES
OF MERCY AND PRACTICALITY HAVE MADE EQUITY THE INSTRUMENT FOR NICE
ADJUSTMENT AND RECONCILIATION BETWEEN THE PUBLIC INTEREST AND PRIVATE
NEEDS AS WELL AS BETWEEN COMPETING PRIVATE CLAIMS." 

[[HC201'(ORIGINAL DOCUMENT PAGE 201)'

  HECHT CO. V. BOWLES, 321 U.S. 321, 329 - 330 (1944). 

SEE ALSO HOLMBERG V. ARMBRECHT, 327 U.S. 392, 396 (1946).     IN
EQUITY, AS NOWHERE ELSE, COURTS ESCHEW RIGID ABSOLUTES AND LOOK TO THE
PRACTICAL REALITIES AND NECESSITIES INESCAPABLY INVOLVED IN RECONCILING
COMPETING INTERESTS, NOTWITHSTANDING THAT THOSE INTERESTS HAVE
CONSTITUTIONAL ROOTS. 

        (4) 

THE CONSTITUTIONAL FULCRUM OF LEMON I WAS THE EXCESSIVE ENTANGLEMENT
OF CHURCH AND STATE FOSTERED BY ACT 109.  WE FOUND IT UNNECESSARY TO
DECIDE WHETHER THE "LEGISLATIVE PRECAUTIONS (OF ACT 109) RESTRICT THE
PRINCIPAL OR PRIMARY EFFECT OF THE PROGRAMS TO THE POINT WHERE THEY DO
NOT OFFEND THE RELIGION CLAUSES."  403 U.S., AT 613 - 614.  FOR, AS WE
SAID OF BOTH ACT 109 AND THE SIMILAR RHODE ISLAND PROVISION, "(A)
COMPREHENSIVE, DISCRIMINATING, AND CONTINUING STATE SURVEILLANCE WILL
INEVITABLY BE REQUIRED TO ENSURE THAT THESE RESTRICTIONS ARE OBEYED . .
. . THESE PROPHYLACTIC CONTACTS WILL INVOLVE EXCESSIVE AND ENDURING
ENTANGLEMENT BETWEEN STATE AND CHURCH."  ID., AT 619.  WE FURTHER
EMPHASIZED THE RECIPROCAL THREAT TO FIRST AMENDMENT INTERESTS FROM
ENMESHING THE DIVISIVE ISSUE OF DIRECT AID TO RELIGIOUS SCHOOLS IN THE
TRADITIONAL POLITICAL PROCESSES.  ID., AT 622 - 624. 

THE SENSITIVE VALUES OF THE RELIGION CLAUSES DO NOT READILY LEND
THEMSELVES TO QUANTIFICATION BUT, DESPITE THE INESCAPABLE IMPRECISION,
WE THINK IT CLEAR THAT THE PROPOSED DISTRIBUTION OF STATE FUNDS TO
PENNSYLVANIA'S NONPUBLIC SECTARIAN SCHOOLS WILL NOT SUBSTANTIALLY
UNDERMINE THE CONSTITUTIONAL INTERESTS AT STAKE IN LEMON I. ACT 109
REQUIRED THE SUPERINTENDENT OF PUBLIC INSTRUCTION TO ENSURE THAT
EDUCATIONAL SERVICES TO BE REIMBURSED BY THE STATE WERE KEPT FREE OF
RELIGIOUS INFLUENCES. 

[[HC202'(ORIGINAL DOCUMENT PAGE 202)'  UNDER THE ACT, THE
SUPERINTENDENT'S SUPERVISORY TASK WAS TO HAVE BEEN COMPLETED LONG AGO,
DURING THE 1970 - 1971 SCHOOL YEAR ITSELF; NOTHING IN THE RECORD
SUGGESTS THAT THE SUPERINTENDENT DID NOT FAITHFULLY EXECUTE HIS DUTIES
ACCORDING TO LAW.  HENCE, PAYMENT OF THE PRESENT DISPUTED SUMS WILL
COMPEL NO FURTHER STATE OVERSIGHT OF THE INSTRUCTIONAL PROCESSES OF
ACT 109 IS NOW SETTLED, THERE IS NO FURTHER POTENTIAL FOR DIVISIVE
POLITICAL CONFLICT AMONG THE CITIZENS AND LEGISLATORS OF PENNSYLVANIA
OVER THE DESIRABILITY OR DEGREE OF DIRECT STATE AID TO SECTARIAN
SCHOOLS UNDER ACT 109. 

TWO PROBLEMS HAVING CONSTITUTIONAL OVERTONES REMAIN, BUT THEIR
RESOLUTION REQUIRES NO COMPROMISE OF THE BASIC PRINCIPLES OF LEMON I.
THERE IS, FIRST, THE IMPACT OF THE SINGLE AND FINAL POST-AUDIT.  THE
RECORD INDICATES THAT THE POST-AUDIT PROCESS WILL INVOLVE ONLY A
MINISTERIAL "CLEANUP" FUNCTION, THAT OF BALANCING EXPENDITURES AND
RECEIPTS IN THE CLOSING ACCOUNTING--UNDERTAKEN ONLY ONCE, AND IN THAT
SETTING A MINIMAL CONTACT OF THE STATE WITH THE AFFAIRS OF THE
SCHOOLS.  SECOND, THERE IS THE QUESTION OF IMPINGING ON THE RELIGION
CLAUSES FROM THE FACT OF ANY PAYMENT THAT PROVIDES ANY STATE ASSISTANCE
OR AID TO SECTARIAN SCHOOLS--THE ISSUE WE DID NOT REACH IN LEMON I. YET
EVEN ASSUMING A COGNIZABLE CONSTITUTIONAL INTEREST IN BARRING ANY STATE
PAYMENTS, UNDER THE DISTRICT COURT HOLDING THAT INTEREST IS IMPLICATED
ONLY ONCE UNDER SPECIAL CIRCUMSTANCES THAT WILL NOT RECUR.  THERE IS NO
PRESENT RISK OF SIGNIFICANT INTRUSIVE ADMINISTRATIVE ENTANGLEMENT,
SINCE ONLY A FINAL POST-AUDIT REMAINS AND DETAILED STATE SURVEILLANCE
OF THE SCHOOLS IS A THING OF THE PAST.  AT THE SAME TIME, THAT VERY
PROCESS OF OVERSIGHT--NOW AN ACCOMPLISHED FACT--ASSURES THAT STATE
FUNDS WILL NOT BE APPLIED FOR ANY SECTARIAN PURPOSES.  /3/ 

[[HC203'(ORIGINAL DOCUMENT PAGE 203)'  FINALLY, AS WILL APPEAR, EVEN
THIS SINGLE PROPOSED PAYMENT FOR SERVICES LONG SINCE PASSING STATE
SCRUTINY REFLECTS NO MORE THAN THE SCHOOLS'  RELIANCE ON PROMISED
PAYMENT FOR EXPENSES INCURRED BY THEM PRIOR TO JUNE 28, 1971. 

OFFSETTING THE REMOTE POSSIBILITY OF CONSTITUTIONAL HARM FROM
ALLOWING THE STATE TO KEEP ITS BARGAIN ARE THE EXPENSES INCURRED BY THE
SCHOOLS IN RELIANCE ON THE STATE STATUTE INVITING THE CONTRACTS MADE
AND AUTHORIZING REIMBURSEMENT FOR PAST SERVICES PERFORMED BY THE
SCHOOLS.  /4/  IT IS WELL ESTABLISHED THAT RELIANCE INTERESTS WEIGH
HEAVILY IN THE SHAPING OF AN APPROPRIATE EQUITABLE REMEDY.  CITY OF
PHENIX V. KOLODZIEJSKI, 399 U.S. 204 (1970); CIPRIANO V. CITY OF HOUMA,
395 U.S. 701 (1969); ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544
(1969).  THAT THERE WAS SUCH RELIANCE BY THE SCHOOLS IS REFLECTED BY A
WELL-SUPPORTED DISTRICT COURT FINDING. 

[[HC204'(ORIGINAL DOCUMENT PAGE 204)'  THE DISTRICT COURT FOUND THAT
THERE WAS NO DISPUTE "THAT TO DENY THE CHURCH-RELATED SCHOOLS ANY
REIMBURSEMENT FOR THEIR SERVICES RENDERED WOULD IMPOSE UPON THEM A
SUBSTANTIAL BURDEN WHICH WOULD BE DIFFICULT FOR THEM TO MEET."  /5/
348 F.SUPP.  300, 304 - 305. 

THE SIGNIFICANCE OF APPELLEE SCHOOLS' RELIANCE IS REINFORCED BY THE
FACT THAT APPELLANTS' TACTICAL CHOICE NOT TO PRESS FOR INTERIM
INJUNCTIVE SUSPENSION OF PAYMENTS OR CONTRACTS DURING THE PENDENCY OF
THE LEMON I LITIGATION MAY WELL HAVE ENCOURAGED THE APPELLEE SCHOOLS TO
INCUR DETRIMENTS IN RELIANCE UPON REIMBURSEMENT BY THE STATE UNDER ACT
109.  IN JUNE 1969, APPELLANTS INITIATED THE LITIGATION THAT CULMINATED
IN LEMON I. THOUGH INITIALLY APPELLANTS MOVED FOR A PRELIMINARY
INJUNCTION TO BLOCK THE SEPTEMBER 1969 PAYMENT OF FUNDS FOR SERVICES
RENDERED DURING THE 1968 - 1969 SCHOOL YEAR, FOR REASONS OF THEIR OWN
APPELLANTS WITHDREW THE REQUEST.  FUNDS WERE PAID IN SEPTEMBER AND
DECEMBER 1969, AND IN MARCH AND JUNE 1970.  IN 1970, THE STATE ENTERED
INTO NEW CONTRACTS WITH THE NONPUBLIC SCHOOLS; APPELLANTS TOOK NO STEPS
TO BLOCK THE MAKING OF THESE CONTRACTS OR TO PREVENT THE STATE FROM
DISBURSING FUNDS, IN SEPTEMBER AND DECEMBER 1970, OR MARCH AND JUNE
1971, FOR SERVICES RENDERED DURING THE 1969 - 1970 SCHOOL YEAR. 

[[HC205'(ORIGINAL DOCUMENT PAGE 205)'  APPELLANTS, MEANWHILE, HAD
FILED A NOTICE OF APPEAL TO THIS COURT BY THE TIME THE DISTRIBUTION OF
FUNDS FOR THE 1969 - 1970 SCHOOL YEAR BEGAN.  IT WAS ONLY AFTER OUR
DECISION IN LEMON I--SIX MONTHS AFTER THE CONTRACTS FOR THE 1970 - 1971
SCHOOL YEAR WERE PERFECTED AND AFTER ALL SERVICES UNDER THOSE CONTRACTS
HAD BEEN PERFORMED--THAT APPELLANTS ASSERTED THEIR INTENTION TO BLOCK
THE PAYMENTS DUE, BEGINNING IN THE FALL OF 1971.  THUS FOR NEARLY TWO
YEARS, THE STATE AND THE SCHOOLS PROCEEDED TO ACT ON THE ASSUMPTION
THAT APPELLANTS WOULD CONTINUE TO ADHERE TO A "SENSIBLE RECOGNITION OF
THE PRACTICAL REALITIES OF THE SITUATION." 

THERE HAS BEEN NO DEMONSTRATION BY THE APPELLEE SCHOOLS OF THE
PRECISE AMOUNT OF ANY DETRIMENT INCURRED BY THEM DURING THE 1970 - 1971
SCHOOL YEAR IN THE EXPECTATION OF REIMBURSEMENT BY THE STATE.  THE
COMPLEXITY OF SUCH A DETERMINATION FOR EACH OF PENNSYLVANIA'S 1,181
NONPUBLIC SCHOOLS THAT CONTRACTED WITH THE STATE UNDER ACT 109 IS
READILY APPARENT.  /6/  BUT WE NEED NOT DWELL ON THE MATTER OF
UNCERTAINTY. 

[[HC206'(ORIGINAL DOCUMENT PAGE 206)'  ON THIS RECORD THE DISTRICT
COURT COULD REASONABLY FIND RELIANCE ON THE PART OF THE APPELLEE
SCHOOLS AND REASONABLY COULD CONCLUDE THAT NO MORE WAS NEEDED TO
DEMONSTRATE RETROSPECTIVELY THE DEGREE OF THEIR RELIANCE. 

IT IS ARGUED, THOUGH, THAT THE SCHOOLS WERE FOOLHARDY TO RELY ON ANY
REIMBURSEMENT BY THE STATE WHATEVER, IN VIEW OF THE CONSTITUTIONAL
CLOUD OVER THE PENNSYLVANIA PROGRAM FROM THE OUTSET.  WE CONCLUDE,
HOWEVER, THAT OUR HOLDING IN LEMON I "DECIDED) AN ISSUE OF FIRST
IMPRESSION WHOSE RESOLUTION WAS NOT CLEARLY FORESHADOWED."  CHEVRON OIL
CO. V. HUSON, 404 U.S., AT 106.  A THREE-JUDGE DISTRICT COURT, WITH ONE
DISSENT, UPHELD ACT 109.  SOON AFTER, ANOTHER THREE-JUDGE DISTRICT
COURT IN RHODE ISLAND HELD UNCONSTITUTIONAL THE RHODE ISLAND STATUTORY
SCHEME WE CONSIDERED TOGETHER WITH PENNSYLVANIA'S PROGRAM IN LEMON I.
NOR WAS DISTRICT COURTS ALONE IN DISAGREEMENT OVER THE
CONSTITUTIONALITY OF LEMON-STYLE PLANS TO PROVIDE FINANCIAL ASSISTANCE
TO SECTARIAN SCHOOLS.  THIS COURT WAS ITSELF DIVIDED WHEN THE ISSUE WAS
ULTIMATELY RESOLVED AFTER FULL BRIEFING AND ARGUMENT.  AND THE COURT
ACKNOWLEDGED "THAT WE CAN ONLY DIMLY PERCEIVE THE LINES OF DEMARCATION
IN THIS EXTRAORDINARILY SENSITIVE AREA OF CONSTITUTIONAL LAW."  LEMON
I, 403 U.S., AT 612.  /7/ 

THAT THERE WOULD BE CONSTITUTIONAL ATTACK ON ACT 109 WAS PLAIN FROM
THE OUTSET. 

[[HC207'(ORIGINAL DOCUMENT PAGE 207)'  BUT THIS IS NOT A CASE WHERE
IT COULD BE SAID THAT APPELLEES ACTED IN BAD FAITH OR THAT THEY RELIED
ON A PLAINLY UNLAWFUL STATUTE.  IN THIS CASE, EVEN THE CLARITY OF
HINDSIGHT IS NOT PERSUASIVE THAT THE CONSTITUTIONAL RESOLUTION OF LEMON
I COULD BE PREDICTED WITH ASSURANCE SUFFICIENT TO UNDERMINE APPELLEES'
RELIANCE ON ACT 109. 

        (5) 

IN THE END, THEN, APPELLANTS' POSITION COMES DOWN TO THIS:  THAT ANY
RELIANCE WHATEVER BY THE SCHOOLS WAS UNJUSTIFIED BECAUSE ACT 109 WAS AN
"UNTESTED" STATE STATUTE WHOSE VALIDITY HAD NEVER BEEN AUTHORITATIVELY
DETERMINED.  THE SHORT ANSWER TO THIS ARGUMENT IS THAT GOVERNMENTS MUST
ACT IF THEY ARE TO FULFILL THEIR HIGH RESPONSIBILITIES.  AS ONE SCHOLAR
HAS OBSERVED, THE DIVERSE STATE GOVERNMENTS WERE PRESERVED BY THE
FRAMERS "AS SEPARATE SOURCES OF AUTHORITY AND ORGANS OF ADMINISTRATION-
A POINT ON WHICH THEY HARDLY HAD A CHOICE."  H. WECHSLER, PRINCIPLES,
POLITICS, AND FUNDAMENTAL LAW 50 (1961). 

APPELLANTS ASK, IN EFFECT, THAT WE HOLD THOSE CHARGED WITH EXECUTING
STATE LEGISLATIVE DIRECTIVES TO THE PERIL OF HAVING THEIR ARRANGEMENTS
UNRAVELED IF THEY ACT BEFORE THERE HAS BEEN AN AUTHORITATIVE JUDICIAL
DETERMINATION THAT THE GOVERNING LEGISLATION IS CONSTITUTIONAL. 
APPELLANTS WOULD HAVE STATE OFFICIALS STAY THEIR HANDS UNTIL NEWLY
ENACTED STATE PROGRAMS ARE "RATIFIED" BY THE FEDERAL COURTS, OR RISK
DRACONIAN, RETROSPECTIVE DECREES SHOULD THE LEGISLATION FALL.  IN OUR
VIEW, APPELLANTS' POSITION COULD SERIOUSLY UNDERMINE THE INITIATIVE OF
STATE LEGISLATORS AND EXECUTIVE OFFICIALS ALIKE. 

[[HC208'(ORIGINAL DOCUMENT PAGE 208)'  UNTIL JUDGES SAY OTHERWISE,
STATE OFFICERS--THE OFFICERS OF PENNSYLVANIA--HAVE THE POWER TO CARRY
FORWARD THE DIRECTIVES OF THE STATE LEGISLATURE.  THOSE OFFICIALS MAY,
IN SOME CIRCUMSTANCES, ELECT TO DEFER ACTING UNTIL AN AUTHORITATIVE
JUDICIAL PRONOUNCEMENT HAS BEEN SECURED; BUT PARTICULARLY WHEN THERE
ARE NO FIXED AND CLEAR CONSTITUTIONAL PRECEDENTS, THE CHOICE IS
ESSENTIALLY ONE OF POLITICAL DISCRETION AND ONE THIS COURT HAS NEVER
CONCEIVED AS AN INCIDENT OF JUDICIAL REVIEW.  WE DO NOT ENGAGE LIGHTLY
IN POST HOC EVALUATION OF SUCH POLITICAL JUDGMENT, FOUNDED AS IT IS ON
"ONE OF THE FIRST PRINCIPLES OF CONSTITUTIONAL ADJUDICATION--THE BASIC
PRESUMPTION OF THE CONSTITUTIONAL VALIDITY OF A DULY ENACTED STATE OR
FEDERAL LAW."  SAN ANTONIO SCHOOL DISTRICT V. RODRIGUEZ, ANTE, P. 1, AT
60 (1973) (STEWART, J., CONCURRING). 

FEDERALISM SUGGESTS THAT FEDERAL COURT INTERVENTION IN STATE
JUDICIAL PROCESSES BE APPROPRIATELY CONFINED.  SEE YOUNGER V. HARRIS,
401 U.S. 37 (1971), AND COMPANION CASES.  LIKEWISE, FEDERALISM REQUIRES
THAT FEDERAL INJUNCTIONS UNRELATED TO STATE COURTS BE SHAPED WITH
CONCERN AND CARE FOR THE RESPONSIBILITIES OF THE EXECUTIVE AND
LEGISLATIVE BRANCHES OF STATE GOVERNMENTS.  /8/  IN SHORT, THE
PROPRIETY OF THE RELIEF AFFORDED APPELLANTS BY DISTRICT COURT, APPLYING
FAMILIAR EQUITABLE PRINCIPLES, MUST BE MEASURED AGAINST THE TOTALITY OF
CIRCUMSTANCES AND IN LIGHT OF THE GENERAL PRINCIPLE THAT, ABSENT
CONTRARY DIRECTION, STATE OFFICIALS AND THOSE WITH WHOM THEY DEAL ARE
ENTITLED TO RELY ON A PRESUMPTIVELY VALID STATE STATUTE, ENACTED IN
GOOD FAITH AND BY NO MEANS PLAINLY UNLAWFUL. 

[[HC209'(ORIGINAL DOCUMENT PAGE 209)'

              AFFIRMED. 

/1/  NONPUBLIC ELEMENTARY AND SECONDARY EDUCATION ACT, JUNE 19,
1968, NO. 109, PA. STAT. ANN., TIT. 24, ^^ 5601 - 5609 (SUPP. 1971). 

/2/  IN LINKLETTER V. WALKER, 381 U.S. 618, 629 (1965), THE COURT
RECALLED MR. JUSTICE CARDOZO'S STATEMENT THAT "THE FEDERAL CONSTITUTION
HAS NO VOICE UPON THE SUBJECT," CITING GREAT NORTHERN R. CO. V.
SUNBURST OIL & REFINING CO., 287 U.S. 358, 364 (1932).  IN SUNBURST,
THE COURT REFUSED TO ACCEPT THE PETITIONER'S CONTENTION THAT
"(ADHERENCE TO PRECEDENT AS ESTABLISHING A GOVERNING RULE FOR THE PAST
IN RESPECT OF THE MEANING OF A STATUTE IS . . . A DENIAL OF DUE PROCESS
WHEN COUPLED WITH THE DECLARATION OF AN INTENTION TO REFUSE TO ADHERE
TO IT IN ADJUDICATING ANY CONTROVERSIES GROWING OUT OF THE TRANSACTIONS
OF THE FUTURE."  ID., AT 363 - 364.  INSTEAD, THE COURT HELD THAT "A
STATE IN DEFINING THE LIMITS OF ADHERENCE TO PRECEDENT MAY MAKE A
CHOICE FOR ITSELF BETWEEN THE PRINCIPLE OF FORWARD OPERATION AND THAT
OF RELATION BACKWARD."  ID., AT 364. 

SUNBURST DOES NOT, OF COURSE, SUGGEST THAT WE MAY IGNORE
CONSTITUTIONAL INTERESTS IN DECIDING WHETHER TO ATTACH RETROSPECTIVE
EFFECT TO A CONSTITUTIONAL DECISION OF THIS COURT. 

/3/  SEE LEMON V. KURTZMAN, 403 U.S. 602 (1971): 

IF THE GOVERNMENT CLOSED ITS EYES TO THE MANNER IN WHICH THESE
GRANTS ARE ACTUALLY USED IT WOULD BE ALLOWING PUBLIC FUNDS TO PROMOTE
SURVEILLANCE NEEDED, IT WOULD, I FEAR, INTERMEDDLE IN PAROCHIAL AFFAIRS
IN A WAY THAT WOULD BREED ONLY RANCOR AND DISSENSION."  ID., AT 640
(DOUGLAS, J., CONCURRING).     "THE COURT THUS CREATES AN INSOLUBLE
PARADOX FOR THE STATE AND THE PAROCHIAL SCHOOLS.  THE STATE CANNOT
FINANCE SECULAR INSTRUCTION IF IT PERMITS RELIGION TO BE TAUGHT IN THE
SAME CLASSROOM; BUT IF IT EXACTS A PROMISE THAT RELIGION NOT BE SO
TAUGHT . . . AND ENFORCES IT, IT IS THEN ENTANGLED IN THE 'NO
ENTANGLEMENT' ASPECT OF THE COURT'S ESTABLISHMENT CLAUSE
JURISPRUDENCE."  ID., AT 668 (OPINION OF WHITE, J.). 

HERE, THE "INSOLUBLE PARADOX" IS AVOIDED BECAUSE THE ENTANGLING
SUPERVISION PREREQUISITE TO STATE AID HAS ALREADY BEEN ACCOMPLISHED AND
NEED NOT ENTER INTO OUR PRESENT EVALUATION OF THE CONSTITUTIONAL
INTERESTS AT STAKE IN THE PROPOSED PAYMENT. 

/4/  WE AGREE WITH THE DISTRICT COURT THAT WHETHER THE PAYMENTS IN
QUESTION CONSTITUTE PAYMENTS UNDER VALID CONTRACTS OR A SUBSIDY "MAKES
NO DIFFERENCE IN OUR DECISION."  TO CHARACTERIZE THE PAYMENTS AS
SUBSIDIES DOES NOT "LESSEN THE RELIANCE OF THE NONPUBLIC SCHOOLS ON THE
PAYMENTS OR THE SUBSEQUENT HARDSHIP UPON THEM IF THE PAYMENTS ARE NOT
MADE."  348 F.SUPP.  300, 304 N. 6. 

/5/  THE DISTRICT COURT'S COMMENT, IN TURN, REFLECTS THE FOLLOWING
COLLOQUY BETWEEN THAT COURT AND COUNSEL FOR APPELLANTS, AT THE DECEMBER
15, 1971, HEARING AFTER REMAND FROM THIS COURT: 

"MR. SAWYER:  I AM PERFECTLY WILLING TO CONCEDE--AND I THINK I MUST
HERE; WE HAVE TAKEN NO EVIDENCE--THAT THERE WAS RELIANCE.  AND I WOULD
LIKE TO STATE, SO THERE IS NO QUESTION ABOUT THAT, THAT I AM ASSUMING
THERE WAS RELIANCE.  I THINK AS A PRACTICAL MATTER, HOWEVER, THE
SCHOOLS CONTINUED TO DO WHAT THEY WERE DOING BEFORE. 

"JUDGE HASTIE:  RELIANCE IN THE SENSE, I ASSUME, OF DETERMINING
ACTIVITIES AND EXPENDITURES IN ANTICIPATION THAT THIS AMOUNT WOULD BE
REIMBURSED? 

"MR. SAWYER:  I KNOW OF A SCHOOL THAT ESCROWED IT, BUT I WOULD THINK
THAT WOULD BE RARE.  AND I HAVE TO LIVE WITH THAT, I THINK, UNLESS I
WANT TO BE PREPARED TO GO AHEAD AND ASK TO TAKE TESTIMONY AND TRY TO
PROVE THAT WASN'T SO . . . ." 

/6/  AS TO EACH SCHOOL, THE DETERMINATION OF ACTUAL RELIANCE WOULD
BE SUBTLE, PREMISED LARGELY ON CREDIBILITY AND NOT ON FACTS OF RECORD. 
NONRELIANCE COULD NOT BE ASSUMED SIMPLY BECAUSE EXPENDITURE LEVELS
REMAINED CONSTANT BEFORE AND AFTER ACT 109; ANY SCHOOL MIGHT WELL
ASSERT THAT IT WOULD HAVE REDUCED ITS EDUCATIONAL EXPENDITURES IN SOME
PARTICULAR BUT FOR THE EXPECTATION OF COMPENSATION FOR CERTAIN OTHER
EXPENDITURES INCURRED IN CONNECTION WITH ACT 109.  SIMILARLY, THE
INQUIRY COULD NOT BE LIMITED TO EXPENDITURES FOR THOSE ITEMS SPECIFIED
BY THE ACT.  INCREASED EXPENDITURES FOR ANY OF THE GAMUT OF A SCHOOL'S
ACTIVITIES MIGHT HAVE BEEN INCURRED IN RELIANCE ON REIMBURSEMENT FOR
SERVICES COVERED BY ACT 109. 

/7/  ACCORDING TO THE DISSENT, APPELLEES CAN "TENDER NO
CONSIDERATIONS OF EQUITY" BECAUSE THEY HAD "CLEAR WARNING" THAT THEY
WERE "TREADING ON UNCONSTITUTIONAL GROUND."  THE APPARENT PREMISE FOR
THIS ASSERTION IS THE VIEW THAT THE ESTABLISHMENT CLAUSE FORBIDS ANY
AND ALL USE OF TAX MONEYS TO "SUPPORT" OR TO "SUBSIDIZE" SECTARIAN
SCHOOLS.  YET THE COURT'S DECISIONS, PRIOR TO AND AT THE TIME OF LEMON
I, SHIED AWAY FROM THIS SWEEPING APPLICATION OF THE ESTABLISHMENT
CLAUSE, FAVORING INSTEAD PARTICULARIZED ANALYSIS OF STATE INVOLVEMENT
IN RELIGIOUS SCHOOLS, WITH THE ANALYSIS BASED UPON THE FACTS AND
CIRCUMSTANCES BEFORE US.  TILTON V. RICHARDSON, 403 U.S. 672 (1971);
WALZ V. TAX COMM'N, 397 U.S. 664, 669 (1970); BOARD OF EDUCATION V.
ALLEN, 392 U.S. 236, 242 - 243 (1968); EVERSON V. BOARD OF EDUCATION,
330 U.S. 1, 14 (1947).  THERE IS, THEN, NO BASIS FOR THE DISSENT'S
SUGGESTION THAT THE COURT HAS BEEN "UNEQUIVOCAL"  IN PROSCRIBING ALL
STATE ASSISTANCE TO RELIGIOUS SCHOOLS. 

/8/  THIS IS NOT TO SAY, OF COURSE, THAT THE FLEXIBLE RANGE OF
FEDERAL INJUNCTIVE POWERS SHOULD BE CURTAILED SO AS TO PERMIT STATE
OFFICERS TO PROCEED WITH THEIR BUSINESS REGARDLESS OF SERIOUS
CONSTITUTIONAL QUESTIONS CONCERNING STATE LEGISLATION.  INDEED, A
SIGNIFICANT PURPOSE OF THESE TOOLS IS TO PRESERVE RIGHTS OF ALL PARTIES
AND TO MINIMIZE UNNECESSARY HARM DURING THE OFTEN PROTRACTED PENDENCY
OF CONSTITUTIONAL LITIGATION. 

[[DOP 

MR. JUSTICE WHITE CONCURS IN THE JUDGMENT. 

[[DOP 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

[[DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART CONCUR, DISSENTING. 

THERE IS AS MUCH A VIOLATION OF THE ESTABLISHMENT CLAUSE OF THE
FIRST AMENDMENT WHETHER THE PAYMENT FROM PUBLIC FUNDS TO SECTARIAN
SCHOOLS INVOLVES LAST YEAR, THE CURRENT YEAR, OR NEXT YEAR.  MADISON IN
HIS REMONSTRANCE STATED:  "(THE SAME AUTHORITY WHICH CAN FORCE A
CITIZEN TO CONTRIBUTE THREE PENCE ONLY OF HIS PROPERTY FOR THE SUPPORT
OF ANY ONE ESTABLISHMENT, MAY FORCE HIM TO CONFORM TO ANY OTHER
ESTABLISHMENT . . . ."  /1/ 

WHETHER THE GRANT IS FOR TEACHING LAST YEAR OR AT THE PRESENT TIME,
TAXPAYERS ARE FORCED TO CONTRIBUTE TO SECTARIAN SCHOOLS A PART OF THEIR
TAX DOLLARS. 

THE BAN ON THAT PRACTICE IS NOT NEW.  LEMON I, 403 U.S. 602, DID NOT
ANNOUNCE A CHANGE IN THE LAW.  WE HAD ANNOUNCED OVER AND OVER AGAIN
THAT THE USE OF TAXPAYERS' MONEY TO SUPPORT PAROCHIAL SCHOOLS VIOLATES
THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY VIRTUE OF THE
FOURTEENTH. 

WE SAID IN UNEQUIVOCAL WORDS IN EVERSON V. BOARD OF EDUCATION, 330
U.S. 1, 16:  "NO TAX IN ANY AMOUNT, LARGE OR SMALL, CAN BE LEVIED TO
SUPPORT ANY RELIGIOUS ACTIVITIES OR INSTITUTIONS, WHATEVER THEY MAY BE
CALLED, OR WHATEVER FORM THEY MAY ADOPT TO TEACH OR PRACTICE
RELIGION." 

[[HC210'(ORIGINAL DOCUMENT PAGE 210)'  WE REITERATED THE SAME IDEA
IN ZORACH V. CLAUSON, 343 U.S. 306, 314, AND IN MCGOWAN V. MARYLAND,
366 U.S. 420, 443, AND IN TORCASO V. WATKINS, 367 U.S. 488, 493.  WE
REPEATED THE SAME IDEA IN MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203,
210, AND ADDED THAT A STATE'S TAX-SUPPORTED PUBLIC SCHOOLS COULD NOT BE
USED "FOR THE DISSEMINATION OF RELIGIOUS DOCTRINES" NOR COULD A STATE
PROVIDE THE CHURCH "PUPILS FOR THEIR RELIGIOUS CLASSES THROUGH USE OF
THE STATE'S COMPULSORY PUBLIC SCHOOL MACHINERY."  ID., AT 212. 

MR. JUSTICE BRENNAN IN HIS SEPARATE OPINION IN LEMON I PUT THE
MATTER SUCCINCTLY WHEN HE SAID, 

"(FOR MORE THAN A CENTURY, THE CONSENSUS, ENFORCED BY LEGISLATURES
AND COURTS WITH SUBSTANTIAL CONSISTENCY HAS BEEN THAT PUBLIC SUBSIDY OF
WITH RELIGIOUS INSTITUTIONS."  403 U.S. 642, 648 - 649. 

SO THERE WAS CLEAR WARNING THAT THOSE WHO PROPOSED SUCH SUBSIDIES WERE
TREADING ON UNCONSTITUTIONAL GROUND.  THEY CAN TENDER NO CONSIDERATIONS
OF EQUITY THAT SHOULD ALLOW THEM TO PROFIT FROM THEIR UNCONSTITUTIONAL
VENTURE. 

THE ISSUES PRESENTED IN THIS TYPE OF CASE ARE OFTEN CAUGHT UP IN
POLITICAL STRATEGIES, DESIGNED TO TURN JUDICIAL OR LEGISLATIVE
MINORITIES INTO MAJORITIES.  LAWYERS PLANNING TRIAL STRATEGIES ARE
FAMILIAR WITH THOSE TACTICS.  BUT THOSE WHO USE THEM AND LOSE HAVE NO
EQUITIES THAT MAKE CONSTITUTIONAL WHAT HAS LONG BEEN DECLARED TO BE
UNCONSTITUTIONAL.  FROM THE DAYS OF MADISON, THE ISSUE OF SUBSIDY HAS
NEVER BEEN A QUESTION OF THE AMOUNT OF THE SUBSIDY BUT RATHER A
PRINCIPLE OF NO SUBSIDY AT ALL. 

THE PROBLEM OF RETROACTIVITY INVOLVED IN CRIMINAL CASES IS THEREFORE
INAPPLICABLE. 

[[HC211'(ORIGINAL DOCUMENT PAGE 211)'  THERE THE QUESTION IS WHETHER
THE NEWLY ANNOUNCED RULE GOES TO THE FAIRNESS OF THE TRIAL THAT HAD
BEEN COMPLETED UNDER THE OLD RULE.  SEE JOHNSON V. NEW JERSEY, 384 U.S.
719, 726 - 729.  HERE THERE IS NO NEW RULE SUPPLANTING AN OLD RULE. 
THE RULE OF NO SUBSIDY HAS BEEN THE DOMINANT ONE SINCE THE DAYS OF
MADISON.  WE DEAL WITH THE NORMAL SITUATION THAT GOVERNS JUDICIAL
DECISIONS.  NORMALLY THEY DETERMINE LEGAL RIGHTS AND OBLIGATIONS WITH
RESPECT TO EVENTS THAT HAVE ALREADY TRANSPIRED.  BY DEFINITION, COURTS
DECIDE DISPUTES THAT HAVE ALREADY ARISEN.  A LOSING LITIGANT HAS NO
EQUITY IN THE FACT THAT HE "RELIED" ON ADVICE THAT TURNED OUT TO BE
UNRELIABLE OR WRONG.  /2/  A DECISION OVER-RULING A PRIOR AUTHORITY MAY
AT TIMES DENY A LITIGANT DUE PROCESS IF APPLIED RETROACTIVELY.  SEE
BRINKERHOFF-FARIS TRUST & SAVINGS CO. V. HILL, 281 U.S. 673.  ONLY A
COMPELLING CIRCUMSTANCE HAS BEEN HELD TO LIMIT A JUDICIAL RULING TO
PROSPECTIVE APPLICATIONS.  THE DISRUPTIVE EFFECT IN CRIMINAL LAW
ENFORCEMENT IS ONE EXAMPLE.  STOVALL V. DENNO, 388 U.S. 293, 300. 
LIKEWISE, A RULING ON THE LEGALITY OF MUNICIPAL BONDS HAS BEEN GIVEN
ONLY PROSPECTIVE APPLICATION WHERE MANY PRIOR BONDS HAD BEEN ISSUED IN
GOOD FAITH ON A CONTRARY ASSUMPTION.  CITY OF PHOENIX V. KOLODZIEJSKI,
399 U.S. 204, 213 - 215. 

RETROACTIVITY OF THE DECISION IN LEMON I GOES TO THE VERY CORE OF
THE INTEGRITY OF THE JUDICIAL PROCESS.  CONSTITUTIONAL PRINCIPLES DO
NOT RIDE ON THE EFFERVESCENT ARGUMENTS ADVANCED BY THOSE SEEKING TO
OBTAIN UNCONSTITUTIONAL SUBSIDIES. 

[[HC212'(ORIGINAL DOCUMENT PAGE 212)'  THE HAPPENSTANCE OF
LITIGATION IS NO CRITERION FOR DISPENSING THESE UNCONSTITUTIONAL
SUBSIDIES.  NO MATTER THE WORDS USED FOR THE APOLOGIA, THE SUBSIDY
TODAY GIVEN TO SECTARIAN SCHOOLS OUT OF TAXPAYERS' MONIES EXCEEDS BY
FAR THE "THREE PENCE" WHICH MADISON CONDEMNED IN HIS REMONSTRANCE. 

I WOULD REVERSE THE JUDGMENT BELOW AND ADHERE TO THE CONSTITUTIONAL
PRINCIPLE ANNOUNCED IN LEMON I. 

[[DFN 

/1/  MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS, 2
WRITINGS OF JAMES MADISON 183, 186 (G. HUNT ED. 1901).  THE
REMONSTRANCE IS REPRINTED IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1,
63 (RUTLEDGE, J., DISSENTING), AND IN WALZ V. TAX COMM'N, 397 U.S. 664,
719 (DOUGLAS, J., DISSENTING). 

/2/  THE RULE OF BRUTON V. UNITED STATES, 391 U.S. 123, WHICH
REJECTED DELLI PAOLI V. UNITED STATES, 352 U.S. 232, WAS GIVEN
RETROSPECTIVE EFFECT.  WE SAID, "THE ELEMENT OF RELIANCE IS NOT
PERSUASIVE, FOR DELLI PAOLI HAS BEEN UNDER ATTACK FROM ITS INCEPTION
AND MANY COURTS HAVE IN FACT REJECTED IT."  ROBERTS V. RUSSELL, 392
U.S. 293, 295. 

DAVID P. BRUTON ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE MELVIN L. WULF, SANFORD J. ROSEN, AND FRANKLIN C.
SALISBURY. 

WILLIAM B. BALL ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF FOR APPELLEE COMMONWEALTH OF PENNSYLVANIA WERE J. SHANE CREAMER,
ATTORNEY GENERAL, SAMUEL RAPPAPORT, JOSEPH G. SKELLY, JAMES E.
GALLAGHER, JR., C. CLARK HODGSON, JR., AND WILLIAM D. VALENTE.  HENRY
T. REATH FILED A BRIEF FOR APPELLEE PENNSYLVANIA ASSOCIATION OF
INDEPENDENT SCHOOLS. 
..END :



FONTAINE V. UNITED STATES, 411 U.S. 213 


       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT 

     NO. 71 - 6757.  ARGUED FEBRUARY 28, 1973--DECIDED APRIL 2,
1973; VACATED AND REMANDED. 


    ON THE RECORD IN THIS CASE PETITIONER WHO MADE AN UNCOUNSELED

  GUILTY PLEA IN OPEN COURT AND WAS SENTENCED TO PRISON, MAY

  COLLATERALLY ATTACK THE PLEA AND IS ENTITLED TO AN EVIDENTIARY

  HEARING UNDER 28, U.S.C. ^ 2255 SINCE HIS MOTION UNDER THAT

  PROVISION SET OUT DETAILED FACTUAL ALLEGATIONS, IN PART

  DOCUMENTED BY RECORDS, SUPPORTING HIS CLAIM THAT THE PLEA WAS

  COERCED, AND SINCE IT CANNOT BE SAID THAT THE RECORD BEFORE THE

  DISTRICT COURT "CONCLUSIVELY SHOWED" THAT PETITIONER WAS ENTITLED

  TO NO RELIEF. 

PER CURIAM. 

ON NOVEMBER 13, 1969, THE PETITIONER WAS ARRAIGNED IN A FEDERAL
DISTRICT COURT UPON A CHARGE OF ROBBERY OF A FEDERALLY INSURED BANK. 
/1/  HE EXECUTED A WRITTEN WAIVER OF HIS RIGHTS TO COUNSEL AND TO A
GRAND JURY INDICTMENT, AND PLEADED GUILTY.  BEFORE ACCEPTING THE PLEA,
THE TRIAL JUDGE, PROCEEDING UNDER FED. RULE CRIM. PROC. 11, ADDRESSED
THE PETITIONER PERSONALLY.  THE PETITIONER ACKNOWLEDGED IN SUBSTANCE
THAT HIS PLEA WAS GIVEN VOLUNTARILY AND KNOWINGLY, THAT HE UNDERSTOOD
THE NATURE OF THE CHARGE AND THE CONSEQUENCES OF THE PLEA, AND THAT HE
WAS IN FACT GUILTY. 

[[HC214'(ORIGINAL DOCUMENT PAGE 214)'  SEE MCCARTHY V. UNITED
STATES, 394 U.S. 459, 464 - 467; CF. BOYKIN V. ALABAMA, 395 U.S. 238,
242.  THE JUDGE THEN ACCEPTED THE GUILTY PLEA AND SUBSEQUENTLY
SENTENCED THE PETITIONER TO 20 YEARS IN PRISON. 

ON AUGUST 6, 1971, THE PETITIONER FILED A MOTION UNDER 28 U.S.C. ^
2255 TO VACATE HIS SENTENCE ON THE GROUND THAT HIS PLEA OF GUILTY HAD
BEEN INDUCED BY A COMBINATION OF FEAR, COERCIVE POLICE TACTICS, AND
ILLNESS, INCLUDING MENTAL ILLNESS.  THE DISTRICT JUDGE WHO HAD ACCEPTED
THE PETITIONER'S PLEA AND SENTENCED HIM TO PRISON CONSIDERED THE MOTION
BUT DENIED IT WITHOUT AN EVIDENTIARY HEARING; THE DISTRICT JUDGE
REASONED THAT SINCE THE REQUIREMENTS OF RULE 11 HAD BEEN MET, THIS
COLLATERAL ATTACK WAS PER SE UNAVAILABLE, STATING:  "WHEN THE TRIAL
COURT HAS SO QUESTIONED THE ACCUSED ABOUT PLEADING GUILTY, THE
PETITIONER CANNOT NOW BE HEARD TO COLLATERALLY ATTACK THE RECORD AND
DENY WHAT WAS SAID IN OPEN COURT."  THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT AFFIRMED ON THE SAME GROUNDS. 

PETITIONER SEEKS CERTIORARI TO REVIEW THAT JUDGMENT; HE URGES THAT
UNDER THE PLAIN WORDING OF ^ 2255 AND OUR DECISION IN MACHIBRODA V.
UNITED STATES, 368 U.S. 487, HE WAS ENTITLED TO AN EVIDENTIARY HEARING
ON HIS CLAIMS.  PETITIONER'S MOTION FOR RELIEF UNDER ^ 2255 SETS OUT
DETAILED FACTUAL ALLEGATIONS REGARDING ALLEGED CIRCUMSTANCES OCCURRING
AFTER HIS ARREST AND BEFORE HIS APPEARNACE IN COURT.  THOSE ALLEGATIONS
DESCRIBE PHYSICAL ABUSE AND ILLNESS FROM A RECENT GUNSHOT WOUND THAT
REQUIRED HOSPITALIZATION WHICH WAS DOCUMENTED BY RECORDS TENDERED IN
SUPPORT OF HIS PETITION.  THE RECORDS ALSO SHOWED THAT A MONTH
FOLLOWING THE PLEA HE WAS AGAIN HOSPITALIZED FOR HEROIN ADDICTION, FOR
AGGRAVATION OF THE EARLIER GUNSHOT WOUND AND FOR OTHER SEVERE
ILLNESSES.  PETITIONER FURTHER ALLEGES THAT PROLONGED INTERROGATION
CONTINUED DURING THE PERIOD PRECEDING HIS PLEA. 

[[HC215'(ORIGINAL DOCUMENT PAGE 215)'  ALL OF THIS, HE CLAIMS,
COERCED HIS CONFESSION, HIS WAIVER OF COUNSEL, AND THE UNCOUNSELED PLEA
OF GUILTY.  IT IS ELEMENTARY THAT A COERCED PLEA IS OPEN TO COLLATERAL
ATTACK.  MACHIBRODA V. UNITED STATES, SUPRA, AT 493.  SEE ALSO WALEY V.
JOHNSTON, 316 U.S. 101; WALKER V. JOHNSTON, 312 U.S. 275; DIAMOND V.
UNITED STATES, 432 F.2D 35, 39; CROW V. UNITED STATES, 397 F.2D 284,
285 - 286.  IT IS EQUALLY CLEAR THAT ^ 2255 CALLS FOR A HEARING ON SUCH
ALLEGATIONS UNLESS "THE MOTION AND THE FILES AND RECORDS OF THE CASE
CONCLUSIVELY SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF . . . ." 

WE NEED NOT TAKE ISSUE WITH THE GOVERNMENT'S GENERALIZATION THAT
WHEN A DEFENDANT EXPRESSLY REPRESENTS IN OPEN COURT, WITHOUT COUNSEL,
THAT HIS PLEA IS VOLUNTARY AND THAT HE WAIVED COUNSEL VOLUNTARILY, HE
"MAY NOT ORDINARILY" REPUDIATE HIS STATEMENTS TO THE SENTENCING JUDGE. 
THE OBJECTIVE OF FED. RULE CRIM. PROC. 11, OF COURSE, IS TO FLUSH OUT
AND RESOLVE ALL SUCH ISSUES, BUT LIKE ANY PROCEDURAL MECHANISM, ITS
EXERCISE IS NEITHER ALWAYS PERFECT NOR UNIFORMLY INVULNERABLE TO
SUBSEQUENT CHALLENGE CALLING FOR AN OPPORTUNITY TO PROVE THE
ALLEGATIONS.  /2/ 

ON THIS RECORD, WE CANNOT CONCLUDE WITH THE ASSURANCE REQUIRED BY
THE STATUTORY STANDARD "CONCLUSIVELY SHOW" THAT UNDER NO CIRCUMSTANCES
COULD THE PETITIONER ESTABLISH FACTS WARRANTING RELIEF UNDER ^ 2255;
ACCORDINGLY, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
TO THAT COURT TO THE END THAT THE PETITIONER BE AFFORDED A HEARING ON
HIS PETITION IN THE DISTRICT COURT. 

              IT IS SO ORDERED. 

/1/  HE HAD BEEN ARRESTED BY STATE OFFICERS AND HAD BEEN IN THE
CUSTODY OF STATE POLICE AND STATE JURISDICTION UNTIL THE TIME OF THE
FEDERAL CHARGE. 

/2/  THE PETITIONER HAS ALSO URGED IN THIS COURT THAT HIS PLEA MUST
BE VACATED BECAUSE THE TRANSCRIPT OF HIS PLEADING FAILS TO DISCLOSE AN
INTELLIGENT WAIVER OF COUNSEL.  BUT THIS CLAIM WAS NOT RAISED IN THE
COURT OF APPEALS OR IN THE PETITION FOR CERTIORARI, AND WE ACCORDINGLY
EXPRESS NO VIEW UPON THE QUESTION. 

[[DOP 

MR. JUSTICE WHITE DISSENTS. 

STEVEN M. UMIN, BY APPOINTMENT OF THE COURT, 409 U.S. 1005, ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

SAMUEL HUNTINGTON ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL PETERSEN, AND PHILIP R. MONAHAN. 
..END :


















BUTZ, SECRETARY OF AGRICULTURE, ET AL. V. GLOVER LIVESTOCK COMMISSION
CO., INC., 411 U.S. 182 



       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT 

     NO. 71 - 1545.  ARGUED FEBRUARY 27, 1973--DECIDED MARCH 28,
1973; 454 F.2D 109, REVERSED. 


    RESPONDENT STOCKYARD OPERATOR, WHO AFTER A HEARING HAD BEEN

  FOUND TO HAVE SHORT-WEIGHTED LIVESTOCK AND UNDERPAID CONSIGNORS

  ON THE BASIS OF THE FALSE WEIGHTS, WAS ORDERED BY A JUDICIAL

  OFFICER ACTING FOR THE SECRETARY OF AGRICULTURE TO CEASE AND

  DESIST AND TO KEEP CORRECT RECORDS, AND ITS REGISTRATION UNDER

  THE PACKERS AND STOCKYARDS ACT WAS SUSPENDED FOR 20 DAYS.  THE

  COURT OF APPEALS UPHELD ALL BUT THE SUSPENSION, WHICH IT FOUND

  INAPPROPRIATE IN VIEW OF THE OTHER SANCTIONS, AND CONTRARY TO THE

  SECRETARY'S PRACTICE EXCEPT FOR "INTENTIONAL AND FLAGRANT"

VIOLATIONS.  HELD:  IN SETTING ASIDE THE SUSPENSION ORDER, THE

  COURT OF APPEALS EXCEEDED THE SCOPE OF PROPER JUDICIAL REVIEW OF

  ADMINISTRATIVE SANCTIONS, SINCE THE SECRETARY HAD FULL AUTHORITY

  TO MAKE THE SUSPENSION ORDER AS A DETERRENT TO VIOLATIONS WHETHER

  INTENTIONAL OR NEGLIGENT, AND ISSUANCE OF THE ORDER AGAINST

  RESPONDENT, WHO HAD IGNORED PREVIOUS WARNINGS AGAINST

  SHORT-WEIGHTING, WAS NOT AN ABUSE OF ADMINISTRATIVE DISCRETION. 

  PP. 185 - 189. 

      BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH

  BURGER, C.J., AND WHITE, MARSHALL, BLACKMUN, POWELL, AND

  REHNQUIST, JJ., JOINED.  STEWART, J., FILED A DISSENTING OPINION,

  IN WHICH DOUGLAS, J., JOINED, POST, P. 189. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

[[HC183'(ORIGINAL DOCUMENT PAGE 183)' 

THE JUDICIAL OFFICER OF THE DEPARTMENT OF AGRICULTURE, ACTING FOR
THE SECRETARY OF AGRICULTURE, FOUND THAT RESPONDENT, A REGISTRANT UNDER
THE PACKERS AND STOCKYARDS ACT, 1921, 42 STAT. 159, 7 U.S.C. ^ 181 ET
SEQ., WILFULLY VIOLATED ^^ 307 (A) AND 312 (A) OF THE ACT, 7 U.S.C. ^^
208 (A) AND 213 (A), BY INCORRECT WEIGHTING OF LIVESTOCK, AND ALSO
BREACHED ^ 401, 7 U.S.C. ^ 221, BY ENTRIES OF FALSE WEIGHTS.  AN ORDER
WAS ENTERED DIRECTING THAT RESPONDENT CEASE AND DESIST FROM THE
VIOLATIONS AND KEEP CORRECT ACCOUNTS, AND ALSO SUSPENDING RESPONDENT AS
A REGISTRANT UNDER THE ACT FOR 20 DAYS.  UPON REVIEW OF THE DECISION
AND ORDER, THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT UPHELD, AS
SUPPORTED BY SUBSTANTIAL EVIDENCE, THE FINDINGS THAT RESPONDENT
VIOLATED THE ACT BY SHORT-WEIGHTING CATTLE, AND ALSO SUSTAINED THE
CEASE-AND-DESIST ORDER AND THE ORDER TO KEEP CORRECT ACCOUNTS.  THE
COURT OF APPEALS, HOWEVER, SET ASIDE THE 20-DAY SUSPENSION.  454 F.2D
109 (1972).  WE GRANTED CERTIORARI TO CONSIDER WHETHER, IN DOING SO,
THE COURT OF APPEALS EXCEEDED THE SCOPE OF PROPER JUDICIAL REVIEW OF
ADMINISTRATIVE SANCTIONS.  409 U.S. 947 (1972).  WE CONCLUDE THAT THE
SETTING ASIDE OF THE SUSPENSION WAS AN IMPERMISSIBLE JUDICIAL INTRUSION
INTO THE ADMINISTRATIVE DOMAIN UNDER THE CIRCUMSTANCES OF THIS CASE,
AND REVERSE. 

RESPONDENT OPERATES A STOCKYARD IN PINE BLUFF, ARKANSAS.  AS A
REGISTERED "MARKET AGENCY" UNDER ^ 303 OF THE ACT, 7 U.S.C. ^ 203,
RESPONDENT IS AUTHORIZED TO SELL CONSIGNED LIVESTOCK ON COMMISSION,
SUBJECT TO THE REGULATORY PROVISIONS OF THE ACT AND THE SECRETARY'S
IMPLEMENTING REGULATIONS.  /1/  INVESTIGATIONS OF RESPONDENT'S
OPERATIONS IN 1964, 1966, AND 1967 UNCOVERED INSTANCES OF UNDERWEIGHING
OF CONSIGNED LIVESTOCK. 

[[HC184'(ORIGINAL DOCUMENT PAGE 184)'  RESPONDENT WAS INFORMALLY
WARNED TO CORRECT THE SITUATION, BUT WHEN A 1969 INVESTIGATION REVEALED
MORE UNDERWEIGHING, THE PRESENT PROCEEDING WAS INSTITUTED BY THE
ADMINISTRATOR OF THE PACKERS AND STOCKYARDS ADMINISTRATION. 

FOLLOWING A HEARING AND THE SUBMISSION OF BRIEFS, THE DEPARTMENT OF
AGRICULTURE HEARING EXAMINER FOUND THAT RESPONDENT HAD "INTENTIONALLY
WEIGHED THE LIVESTOCK AT LESS THAN THEIR TRUE WEIGHTS, ISSUED SCALE
TICKETS AND ACCOUNTINGS TO THE CONSIGNORS ON THE BASIS OF THE FALSE
WEIGHTS, AND PAID THE CONSIGNORS ON THE BASIS OF THE FALSE WEIGHTS." 
/2/  THE HEARING EXAMINER RECOMMENDED, IN ADDITION TO A CEASE-AND
DESIST ORDER AND AN ORDER TO KEEP CORRECT RECORDS, A 30-DAY SUSPENSION
FO RESPONDENT'S REGISTRATION UNDER THE ACT. 

THE MATTER WAS THEN REFERRED TO THE JUDICIAL OFFICER.  AFTER HEARING
ORAL ARGUMENT, THE JUDICIAL OFFICER FILED A DECISION AND ORDER
ACCEPTING THE HEARING EXAMINER'S FINDINGS AND ADOPTING HIS
RECOMMENDATIONS OF A CEASE-AND-DESIST ORDER AND AN ORDER TO KEEP
CORRECT RECORDS.  THE RECOMMENDED SUSPENSION WAS ALSO IMPOSED BUT WAS
REDUCED TO 20 DAYS.  THE JUDICIAL OFFICER STATED: 

     "IT IS NOT A PLEASANT TASK TO IMPOSE SANCTIONS BUT IN VIEW OF

  THE PREVIOUS WARNINGS GIVEN RESPONDENT WE CONCLUDE THAT WE SHOULD

  NOT ONLY ISSUE A CEASE AND DESIST ORDER BUT ALSO A SUSPENSION OF

  RESPONDENT AS A REGISTRANT UNDER THE ACT BUT FOR A LESSER PERIOD

  THAN RECOMMENDED BY COMPLAINANT AND THE HEARING EXAMINER."  30

  AGRI.  DEC.  179, 186 (1971). 

[[HC185'(ORIGINAL DOCUMENT PAGE 185)' 

THE COURT OF APPEALS AGREED THAT 7 U.S.C. ^ 204 AUTHORIZED THE
SECRETARY TO SUSPEND "ANY REGISTRANT FOUND IN VIOLATION OF THE ACT,"
454 F.2D, AT 113, THAT THE SUSPENSION PROCEDURE HERE SATISFIED THE
RELEVANT REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. ^
558, AND THAT "THE EVIDENCE INDICATES THAT (RESPONDENT) ACTED WITH
CARELESS DISREGARD OF THE STATUTORY REQUIREMENTS AND THUS MEETS THE
TEST OF 'WILFULNESS.'"  454 F.2D, AT 115.  THE COURT NEVERTHELESS
CONCLUDED THAT THE SUSPENSION ORDER WAS "UNCONSCIONABLE" UNDER THE
CIRCUMSTANCES OF THIS CASE.  THE COURT GAVE TWO REASONS.  THE FIRST,
RELYING ON FOUR PREVIOUS SUSPENSION DECISIONS, WAS THAT THE SECRETARY'S
PRACTICE WAS NOT TO IMPOSE SUSPENSIONS FOR NEGLIGENT OR CARELESS
VIOLATIONS BUT ONLY FOR VIOLATIONS FOUND TO BE "INTENTIONAL AND
FLAGRANT," AND THEREFORE THAT THE SUSPENSION IN RESPONDENT'S CASE WAS
CONTRARY TO A POLICY OF "'ACHIEVING) . . . UNIFORMITY OF SANCTIONS FOR
SIMILAR VIOLATIONS.'"  THE SECOND REASON GIVEN WAS THAT "(THE CEASE AND
DESIST ORDER COUPLED WITH THE DAMAGING PUBLICITY SURROUNDING THESE
PROCEEDINGS WOULD CERTAINLY SEEM APPROPRIATE AND REASONABLE WITH
RESPECT TO THE PRACTICE THE DEPARTMENT SEEKS TO ELIMINATE."  ID., AT
114, 115. 

THE APPLICABLE STANDARD OF JUDICIAL REVIEW IN SUCH CASES REQUIRED
REVIEW OF THE SECRETARY'S ORDER ACCORDING TO THE "FUNDAMENTAL PRINCIPLE
. . . THAT WHERE CONGRESS HAS ENTRUSTED AN ADMINISTRATIVE AGENCY WITH
THE RESPONSIBILITY OF SELECTING THE MEANS OF ACHIEVING THE STATUTORY
POLICY 'THE RELATION OF REMEDY TO POLICY IS PECULIARLY A MATTER FOR
ADMINISTRATIVE COMPETENCE.'"  AMERICAN POWER CO. V. SEC, 329 U.S. 90,
112 (1946).  THUS, THE SECRETARY'S CHOICE OF SANCTION WAS NOT TO BE
OVERTURNED UNLESS THE COURT OF APPEALS MIGHT FIND IT "UNWARRANTED IN
LAW OR . . . WITHOUT JUSTIFICATION IN FACT . . . ." 

[[HC186'(ORIGINAL DOCUMENT PAGE 186)'  ID., AT 112 - 113; PHELPS
DODGE CORP. V. NLRB, 313 U.S. 177, 194 (1941); MOOG INDUSTRIES, INC. V.
FTC, 355 U.S. 411, 413 - 414 (1958); FTC V. UNIVERSAL-RUNDLE CORP., 387
U.S. 244, 250 (1967); 4 K. DAVIS, ADMINISTRATIVE LAW ^ 30.10, PP. 250 -
251 (1958).  THE COURT OF APPEALS ACKNOWLEDGED THIS DEFINITION OF THE
PERMISSIBLE SCOPE OF JUDICIAL REVIEW /3/  BUT APPARENTLY REGARDED
RESPONDENT'S SUSPENSION AS "UNWARRANTED IN LAW" OR "WITHOUT
JUSTIFICATION IN FACT."  WE CANNOT AGREE THAT THE SECRETARY'S ACTION
CAN BE FAULTED IN EITHER RESPECT ON THIS RECORD. 

WE READ THE COURT OF APPEALS' OPINION TO SUGGEST THAT THE SANCTION
WAS "UNWARRANTED IN LAW" BECAUSE "UNIFORMITY OF SANCTIONS FOR SIMILAR
VIOLATIONS"  IS SOMEHOW MANDATED BY THE ACT.  WE SEARCH IN VAIN FOR
THAT REQUIREMENT IN THE STATUTE.  /4/  THE SECRETARY MAY SUSPEND "FOR A
REASONABLE SPECIFIED PERIOD" ANY REGISTRANT WHO HAS VIOLATED ANY
PROVISION OF THE ACT. 

[[HC187'(ORIGINAL DOCUMENT PAGE 187)'  7 U.S.C. ^ 204.  NOTHING
WHATEVER IN THAT PROVISION CONFINES ITS APPLICATION TO CASES OF
"INTENTIONAL AND FLAGRANT CONDUCT" OR DENIES ITS APPLICATION IN CASES
OF NEGLIGENT OR CARELESS VIOLATIONS.  RATHER, THE BREADTH OF THE GRANT
OF AUTHORITY TO IMPOSE THE SANCTION STRONGLY IMPLIES A CONGRESSIONAL
PURPOSE TO PERMIT THE SECRETARY TO IMPOSE IT TO DETER REPEATED
VIOLATIONS OF THE ACT, WHETHER INTENTIONAL OR NEGLIGENT.  HYATT V.
UNITED STATES, 276 F.2D 308, 313 (CA10 1960); G. H. MILLER & CO. V.
UNITED STATES, 260 F.2D 286 (CA7 1958); IN RE SILVER, 21 AGRI.  DEC. 
1438, 1452 (1962).  /5/  THE EMPLOYMENT OF A SANCTION WITHIN THE
AUTHORITY OF AN ADMINISTRATIVE AGENCY IS THUS NOT RENDERED INVALID IN A
PARTICULAR CASE BECAUSE IT IS MORE SEVERE THAN SANCTIONS IMPOSED IN
OTHER CASES.  FCC V. WOKO, 329, U.S. 223, 227 - 228 (1946); FTC V.
UNIVERSAL-RUNDLE CORP., 387 U.S., AT 250, 251; G. H. MILLER & CO. V.
UNITED STATES, SUPRA, AT 296; HILLER V. SEC, 429 F.2D 856, 858 - 859
(CA2 1970); DLUGASH V. SEC, 373 F.2D 107, 110 (CA2 1967); KENT V.
HARDIN, 425 F.2D 1346, 1349 (CA5 1970). 

MOREOVER, THE COURT OF APPEALS MAY HAVE BEEN IN ERROR IN ACTING ON
THE PREMISE THAT THE SECRETARY'S PRACTICE WAS TO IMPOSE SUSPENSIONS
ONLY IN CASES OF "INTENTIONAL AND FLAGRANT CONDUCT."  /6/  THE
SECRETARY'S PRACTICE, RATHER, APPARENTLY IS TO EMPLOY THAT SANCTION AS
IN HIS JUDGMENT BEST SERVES TO DETER VIOLATIONS AND ACHIEVE THE
OBJECTIVES OF THAT STATUTE. 

[[HC188'(ORIGINAL DOCUMENT PAGE 188)'  CONGRESS PLAINLY INTENDED IN
ITS BROAD GRANT TO GIVE THE SECRETARY THAT BREADTH OF DISCRETION. 
THEREFORE, MERE UNEVENNESS IN THE APPLICATION OF THE SANCTION DOES NOT
RENDER ITS APPLICATION IN A PARTICULAR CASE "UNWARRANTED IN LAW." 

NOR CAN WE PERCEIVE ANY BASIS ON THIS RECORD FOR A CONCLUSION THAT THE
SUSPENSION OF RESPONDENT WAS SO "WITHOUT JUSTIFICATION IN FACT" AS TO
CONSTITUTE AN ABUSE OF (THE SECRETARY'S) DISCRETION."  AMERICAN POWER
CO. V. SEC, 329 U.S., AT 115; MOOG INDUSTRIES, INC. V. FTC, 355 U.S.,
AT 414; BARSKY V. BOARD OF REGENTS, 347 U.S. 442, 455 (1954).  THE
JUDICIAL OFFICER RESTED THE SUSPENSION ON HIS VIEW OF ITS NECESSITY IN
LIGHT OF RESPONDENT'S DISREGARD OF PREVIOUS WARNINGS.  THE FACTS FOUND
CONCERNING THE PREVIOUS WARNINGS AND RESPONDENT'S DISREGARD OF THESE
WARNINGS WERE SUSTAINED BY THE COURT OF APPEALS AS BASED ON AMPLE
EVIDENCE.  IN THAT CIRCUMSTANCE, THE OVERTURNING OF THE SUSPENSION
AUTHORIZED BY THE STATUTE WAS AN IMPERMISSIBLE INTRUSION INTO THE
ADMINISTRATIVE DOMAIN. 

SIMILARLY, INSOFAR AS THE COURT OF APPEALS RESTED ITS ACTION ON ITS
VIEW THAT, IN LIGHT OF DAMAGING PUBLICITY ABOUT THE CHARGES, THE CEASE
AND-DESIST ORDER SUFFICIENTLY REDRESSED RESPONDENT'S VIOLATIONS, THE
COURT CLEARLY EXCEEDED ITS FUNCTION OF JUDICIAL REVIEW.  THE FASHIONING
OF AN APPROPRIATE AND REASONABLE REMEDY IS FOR THE SECRETARY, NOT THE
COURT. 

[[HC189'(ORIGINAL DOCUMENT PAGE 189)'  THE COURT MAY DECIDE ONLY
WHETHER, UNDER THE PERTINENT STATUTE AND RELEVANT FACTS, THE SECRETARY
MADE "AN ALLOWABLE JUDGMENT IN (HIS) CHOICE OF THE REMEDY."  JACOB
SIEGEL CO. V. FTC, 327 U.S. 608, 612 (1946). 

              REVERSED. 

/1/  7 U.S.C. ^^ 201 - 217A.  SPECIFICALLY, REGISTRANTS ARE
PROHIBITED FROM ENGAGING IN OR USING "ANY UNFAIR, UNJUSTLY
DISCRIMINATORY, OR DECEPTIVE PRACTICE OR DEVICE IN CONNECTION WITH . .
. RECEIVING, MARKETING, BUYING, OR SELLING ON A COMMISSION BASIS OR
OTHERWISE, FEEDING, WATERING, HOLDING, DELIVERY, SHIPMENT, WEIGHING, OR
HANDLING . . . OF LIVESTOCK,"  7 U.S.C. ^ 213(A), AND ARE REQUIRED TO
"KEEP SUCH ACCOUNTS, RECORDS, AND MEMORANDA AS FULLY AND CORRECTLY
DISCLOSE ALL TRANSACTIONS INVOLVED IN HIS BUSINESS . . . ."  7 U.S.C. ^
221. 

THE SECRETARY'S REGULATIONS MAY BE FOUND IN 9 CFR PT. 201. 

/2/  APP. 35. 

/3/  THE COURT OF APPEALS STATED: 

"ORDINARILY IT IS NOT FOR THE COURTS TO MODIFY ANCILLARY FEATURES OF
AGENCY ORDERS WHICH ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE SHAPING
OF REMEDIES IS PECULIARLY WITHIN THE SPECIAL COMPETENCE OF THE
REGULATORY AGENCY VESTED BY CONGRESS WITH AUTHORITY TO DEAL WITH THESE
MATTERS, AND SO LONG AS THE REMEDY SELECTED DOES NOT EXCEED THE
AGENCY'S STATUTORY POWER TO IMPOSE AND IT BEARS A REASONABLE RELATION
TO THE PRACTICE SOUGHT TO BE ELIMINATED, A REVIEWING COURT MAY NOT
INTERFERE . . . . (APPELLATE COURTS (MAY NOT) ENTER THE MORE SPACIOUS
DOMAIN OF PUBLIC POLICY WHICH CONGRESS HAS ENTRUSTED IN THE VARIOUS
REGULATORY AGENCIES."  454 F.2D 109, 114. 

/4/  THE COURT OF APPEALS CITED A 1962 DECISION BY THE SECRETARY IN
WHICH APPEARS A REFERENCE TO "UNIFORMITY OF SANCTIONS FOR SIMILAR
VIOLATIONS."  IN RE SILVER, 21 AGRI.  DEC.  1438 (1962).  THAT
REFERENCE IS NO SUPPORT FOR THE COURT OF APPEALS' DECISION, HOWEVER,
FOR THE SECRETARY SAID EXPRESSLY IN THAT DECISION: 

"FALSE AND INCORRECT WEIGHING OF LIVESTOCK BY REGISTRANTS UNDER THE
ACT IS A FLAGRANT AND SERIOUS VIOLATION THEREOF . . ."  AND "EVEN IF
RESPONDENT DID NOT GIVE INSTRUCTIONS FOR THE FALSE WEIGHINGS, HIS
NEGLIGENCE IN ALLOWING THE FALSE WEIGHINGS OVER AN EXTENDED PERIOD
BRINGS SUCH SITUATION WITHIN THE REACH OF THE CITED CASES (SUSTAINING
SANCTIONS) AND WE WOULD STILL ORDER THE SANCTIONS BELOW."  ID., AT
1452. 

/5/  IT IS BY NO MEANS CLEAR THAT RESPONDENT'S VIOLATIONS WERE
MERELY NEGLIGENT.  THE HEARING EXAMINER FOUND THAT RESPONDENT HAD
"INTENTIONALLY" UNDERWEIGHED LIVESTOCK, AND THE JUDICIAL OFFICER
STATED:  "WE CONCLUDE THEN, AS DID THE HEARING EXAMINER, THAT
RESPONDENT WILFULLY VIOLATED . . . THE ACT."  "WILFULLY" COULD REFER TO
EITHER INTENTIONAL CONDUCT OR CONDUCT THAT WAS MERELY CARELESS OR
NEGLIGENT.  IT SEEMS CLEAR, HOWEVER, THAT THE JUDICAL OFFICER SUSTAINED
THE HEARING EXAMINER'S FINDING THAT THE VIOLATIONS WERE "INTENTIONAL." 

/6/  SEE, E. G., IN RE MARTELLA, 30 AGRI.  DEC.  1479 (1971); IN RE
MEGGS, 30 AGRI.  DEC.  1314 (1971); IN RE PRODUCERS LIVESTOCK MARKETING
ASSN., 30 AGRI.  DEC.  796 (1971); IN RE TRIMBLE, 29 AGRI.  DEC.  936
(1970); IN RE ANSON, 28 AGRI.  DEC.  1127 (1969); IN RE WILLIAMSTOWN
STOCKYARDS, 27 AGRI.  DEC.  252 (1968); IN RE MIDDLE GEORGIA LIVESTOCK
SALES CO., 23 AGRI.  DEC.  1361 (1964).  THESE CASES INVOLVE SUSPENSION
OF REGISTRANTS UNDER THE PACKERS AND STOCKYARDS ACT FOR FALSE WEIGHING
OF PRODUCERS'  LIVESTOCK AND IN NONE WAS THERE A FINDING THAT THE
VIOLATION WAS INTENTIONAL OR FLAGRANT.  THERE ARE ALSO MANY CASES OF
SUSPENSION FOR DIVERSE OTHER VIOLATIONS WITHOUT A FINDING THAT THE
CONDUCT WAS INTENTIONAL OR FLAGRANT.  SEE, E. G., IN RE WALLIS, 29
AGRI.  DEC.  37 (1970). 

[[DOP 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE ONLY REMARKABLE THING ABOUT THIS CASE IS ITS PRESENCE IN THIS
COURT.  FOR THE CASE INVOLVES NO MORE THAN THE APPLICATION OF WELL
SETTLED PRINCIPLES TO A FAMILIAR SITUATION, AND HAS LITTLE SIGNIFICANCE
EXCEPT FOR THE RESPONDENT.  WHY CERTIORARI WAS GRANTED IS A MYSTERY TO
ME--PARTICULARLY AT A TIME WHEN THE COURT IS THOUGHT BY MANY TO BE
BURDENED BY TOO HEAVY A CASELOAD.  SEE RULE 19, RULES OF THE SUPREME
COURT OF THE UNITED STATES.     THE COURT OF APPEALS DID NOTHING MORE
THAN REVIEW A PENALTY IMPOSED BY THE SECRETARY OF AGRICULTURE THAT WAS
ALLEGED BY THE RESPONDENT TO BE DISCRIMINATORY AND ARBITRARY.  IN
APPROACHING ITS TASK, THE APPELLATE COURT DISPLAYED AN IMPECCABLE
UNDERSTANDING OF THE PERMISSIBLE SCOPE OF REVIEW: 

     "THE SCOPE OF OUR REVIEW IS LIMITED TO THE CORRECTION OF
ERRORS

  OF LAW AND TO AN EXAMINATION OF THE SUFFICIENCY OF THE EVIDENCE

  SUPPORTING THE FACTUAL CONCLUSIONS.  THE FINDINGS AND ORDER OF

  THE JUDICIAL OFFICER MUST BE SUSTAINED IF NOT CONTRARY TO LAW AND

  IF SUPPORTED BY SUBSTANTIAL EVIDENCE.  ALSO, THIS COURT MAY NOT

  SUBSTITUTE ITS JUDGMENT FOR THAT OF THE JUDICIAL OFFICER'S AS TO

  WHICH OF THE VARIOUS INFERENCES MAY BE DRAWN FROM THE EVIDENCE." 

  454 F.2D 109, 110 - 111. 

        .          .          .          . 

"ORDINARILY IT IS NOT FOR THE COURTS TO MODIFY ANCILLARY FEATURES OF
AGENCY ORDERS WHICH ARE SUPPORTED BY SUBSTANTIAL EVIDENCE. 

[[HC190'(ORIGINAL DOCUMENT PAGE 190)'

  THE SHAPING OF REMEDIES IS PECULIARLY WITHIN THE SPECIAL
COMPETENCE OF THE REGULATORY AGENCY

  VESTED BY CONGRESS WITH AUTHORITY TO DEAL WITH THESE MATTERS, AND
SO LONG AS THE REMEDY

  SELECTED DOES NOT EXCEED THE AGENCY'S STATUTORY POWER TO IMPOSE
AND IT BEARS A REASONABLE

  RELATION TO THE PRACTICE SOUGHT TO BE ELIMINATED, A REVIEWING
COURT MAY NOT INTERFERE."  ID.,

  AT 114. 

HAD THE COURT OF APPEALS USED THE TALISMANIC LANGUAGE OF THE
ADMINISTRATIVE PROCEDURE ACT, AND FOUND THE PENALTY TO BE EITHER
"ARBITRARY, CAPRICIOUS, AND ABUSE OF DISCRETION, OR OTHERWISE NOT IN
ACCORDANCE WITH LAW."  5 U.S.C. ^ 706 (2)(A), I HAVE NO DOUBT THAT
CERTIORARI WOULD HAVE BEEN DENIED.  BUT THE COURT OF APPEALS MADE THE
MISTAKE OF USING THE WRONG WORDS, SAYING THAT THE PENALTY WAS
"UNCONSCIONABLE," BECAUSE IT WAS "UNWARRANTED AND WITHOUT JUSTIFICATION
IN FACT."  /1/ 

TODAY THE COURT HOLDS THAT THE PENALTY WAS NOT "UNWARRANTED IN LAW,"
BECAUSE IT WAS WITHIN PERMISSIBLE STATUTORY LIMITS.  BUT THIS IGNORES
THE VALID PRINCIPLE OF LAW THAT MOTIVATED THE COURT OF APPEALS--THE
PRINCIPLE THAT LIKE CASES ARE TO BE TREATED ALIKE.  AS PROFESSOR JAFFE
HAS PUT THE MATTER: 

     "THE SCOPE OF JUDICIAL REVIEW IS ULTIMATELY CONDITIONED AND

DETERMINED BY THE MAJOR PROPOSITION THAT THE CONSTITUTIONAL

  COURTS OF THIS COUNTRY ARE THE ACKNOWLEDGED ARCHITECTS AND

  GUARANTORS OF THE INTEGRITY OF THE LEGAL SYSTEM . . . . AN AGENCY

  IS NOT AN ISLAND ENTIRE OF ITSELF.  IT IS ONE OF THE MANY ROOMS

  IN THE MAGNIFICENT MANSION OF THE LAW.  THE VERY SUBORDINATION OF

  THE AGENCY TO JUDICIAL JURISDICTION IS INTENDED TO PROCLAIM THE

  PREMISE THAT EACH AGENCY IS TO BE BROUGHT INTO HARMONY WITH THE

  TOTALITY OF THE LAW; THE LAW AS IT IS FOUND IN THE STATUTE AT

  HAND, THE STATUTE BOOK AT LARGE, THE PRINCIPLES AND CONCEPTIONS

OF THE 'COMMON LAW,' AND THE ULTIMATE GUARANTEES ASSOCIATED WITH

  THE CONSTITUTION."  /2/ 

[[HC191'(ORIGINAL DOCUMENT PAGE 191)' 

THE REVERSAL TODAY OF A WHOLLY DEFENSIBLE COURT OF APPEALS JUDGMENT
ACCOMPLISHES TWO UNFORTUNATE RESULTS.  FIRST, THE COURT MOVES
ADMINISTRATIVE DECISIONMAKING ONE STEP CLOSER TO UNREVIEWABILITY, AN
ODD RESULT AT A TIME WHEN SERIOUS CONCERN IS BEING EXPRESSED ABOUT THE
FAIRNESS OF AGENCY JUSTICE.  /3/  SECOND, THE COURT SERVES NOTICE UPON
THE FEDERAL JUDICIARY TO BE WARY INDEED OF VENTURING TO CORRECT
ADMINISTRATIVE ARBITARINESS. 

BECAUSE I THINK THE COURT OF APPEALS FOLLOWED THE CORRECT PRINCIPLES
OF JUDICIAL REVIEW OF ADMINISTRATIVE CONDUCT, I WOULD AFFIRM ITS
JUDGMENT. 

[[DFN 

/1/  THE COURT OF APPEALS BORROWED THIS PHRASING OF THE TEST FROM
THIS COURT'S OPINION IN AMERICAN POWER CO. V. SEC, 329 U.S. 90, 112 -
113. 

/2/  L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 589 - 590
(1965). 

/3/  SEE GENERALLY K. DAVIS, DISCRETIONARY JUSTICE:  A PRELIMINARY
INQUIRY (1969), REVIEWED BY WRIGHT, BEYOND DISCRETIONARY JUSTICE, 81
YALE L. J. 575. 

KEITH A. JONES ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WOOD,
MORTON HOLLANDER, AND WILLIAM KANTER. 

R. A. EILBOTT, JR., ARGUED THE CASUE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS EDWARD I. STATEN. 
..END :









MESCALERO APACHE TRIBE V. JONES, 411 U.S. 145 


       CERTIORARI TO THE COURT OF APPEALS OF NEW MEXICO 

    NO. 71 - 738.  ARGUED DECEMBER 12, 1972 - DECIDED MARCH 27,

  1973; 83 N.M. 158, 489 P.2D 666, AFFIRMED IN PART AND REVERSED IN

  PART. 


    THE STATE OF NEW MEXICO MAY IMPOSE A NONDISCRIMINATORY GROSS

  RECEIPTS TAX ON A SKI RESORT OPERATED BY PETITIONER TRIBE ON

  OFF-RESERVATION LAND THAT THE TRIBE LEASED FROM THE FEDERAL

  GOVERNMENT UNDER ^ 5 OF THE INDIAN REORGANIZATION ACT, 25 U.S.C.

  ^ 465.  THOUGH ^ 465 EXEMPTS THE LAND ACQUIRED FROM STATE AND

  LOCAL TAXATION, NEITHER THAT PROVISION NOR THE

  FEDERAL-INSTRUMENTALITY DOCTRINE BARS TAXING INCOME FROM THE

  LAND.  BUT ^ 465 BARS A USE TAX THAT THE STATE SEEKS TO IMPOSE ON

  PERSONALTY THAT THE TRIBE PURCHASED OUT OF STATE AND WHICH,

  HAVING BEEN INSTALLED AS A PERMANENT IMPROVEMENT AT THE RESORT,

  BECAME SO INTIMATELY CONNECTED WITH THE LAND ITSELF AS TO BE

  ENCOMPASSED BY THE STATUTORY EXEMPTION.  PP. 147 - 159. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER

  C.J., AND MARSHALL, BLACKMUN, POWELL, AND REHNQUIST, JJ.,

  JOINED.  DOUGLAS, J., FILED AN OPINION DISSENTING IN PART, IN

  WHICH BRENNAN AND STEWART, JJ., JOINED, POST, P. 159. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

[[HC146'(ORIGINAL DOCUMENT PAGE 146)' 

THE MESCALERO APACHE TRIBE OPERATES A SKI RESORT IN THE STATE OF NEW
MEXICO, ON LAND LOCATED OUTSIDE THE BOUNDARIES OF THE TRIBE'S
RESERVATION.  THE STATE HAS ASSERTED THE RIGHT TO IMPOSE A TAX ON THE
GROSS RECEIPTS OF THE SKI RESORT AND A USE TAX ON CERTAIN PERSONALTY
PURCHASED OUT OF STATE AND USED IN CONNECTION WITH THE RESORT.  WHETHER
PARAMOUNT FEDERAL LAW PERMITS THESE TAXES TO BE LEVIED IS THE ISSUE
PRESENTED BY THIS CASE. 

THE HOME OF THE MESCALERO APACHE TRIBE IS ON RESERVATION LANDS IN
LINCOLN AND OTERO COUNTIES IN NEW MEXICO.  THE SIERRA BLANCA SKI
ENTERPRISES, OWNED AND OPERATED BY THE TRIBE, IS ADJACENT TO THE
RESERVATION AND WAS DEVELOPED UNDER THE AUSPICES OF THE INDIAN
REORGANIZATION ACT OF 1934, 48 STAT. 984, AS AMENDED, 25 U.S.C. ^ 461
ET SEQ. /1/  AFTER A FEASIBILITY STUDY BY THE BUREAU OF INDIAN AFFAIRS,
EQUIPMENT AND CONSTRUCTION MONEY WAS PROVIDED BY A LOAN FROM THE
FEDERAL GOVERNMENT UNDER ^ 10 OF THE ACT, 25 U.S.C. ^ 470, AND THE
NECESSARY LAND WAS LEASED FROM THE UNITED STATES FOREST SERVICE FOR A
TERM OF 30 YEARS.  THE SKI AREA BORDERS ON THE TRIBE'S RESERVATION BUT,
WITH THE EXCEPTION OF SOME CROSS-COUNTRY SKI TRAILS, NO PART OF THE
ENTERPRISE, ITS BUILDINGS, OR EQUIPMENT IS LOCATED WITHIN THE EXISTING
BOUNDARIES OF THE RESERVATION. 

THE TRIBE HAS PAID UNDER PROTEST $26,086.47 IN TAXES TO THE STATE,
PURSUANT TO THE SALES TAX LAW, N.M. STAT. ANN. ^ 72 - 16 - 1 ET SEQ.
(1953), BASED ON THE GROSS RECEIPTS OF THE SKI RESORT FROM THE SALE OF
SERVICE AND TANGIBLE PROPERTY.  /2/ 

[[HC147'(ORIGINAL DOCUMENT PAGE 147)'  IN ADDITION, IN 1968 THE
STATE ASSESSED COMPENSATING USE TAXES AGAINST THE TRIBE IN THE AMOUNT
OF $5,887.19 (PLUS PENALTIES AND INTEREST), BASED ON THE PURCHASE PRICE
OF MATERIALS USED TO CONSTRUCT TWO SKI LIFTS AT THE RESORT.  N.M. STAT.
ANN. ^ 72 - 17 - 1 ET SEQ. (1953).  THE TRIBE DULY PROTESTED THE USE
TAX ASSESSMENT AND SOUGHT A REFUND OF THE SALES TAXES PAID.  THE STATE
COMMISSIONER OF REVENUE DENIED BOTH THE CLAIM FOR REFUND AND THE
PROTEST OF ASSESSMENT AND THE COURT OF APPEALS OF THE STATE AFFIRMED. 
THE COURT HELD, ESSENTIALLY, THAT THE STATE HAD AUTHORITY TO APPLY ITS
NONDISCRIMINATORY TAXES TO THE TRIBE'S ENTERPRISE AND PROPERTY INVOLVED
IN THE DISPUTE, AND THAT THE INDIAN REORGANIZATION ACT DID NOT RENDER
THE TRIBE'S ENTERPRISE A FEDERAL INSTRUMENTALITY, CONSTITUTIONALLY
IMMUNE FROM STATE TAXATION, NOR DID IT, BY ITS OWN TERMS, GRANT
IMMUNITY FROM THE TAXES HERE INVOLVED.  83 N.M. 158, 489 P.2D 666
(1971).  THE SUPREME COURT OF NEW MEXICO DENIED CERTIORARI.  83 N.M.
151, 489 P.2D 659 (1971).  WE GRANTED THE TRIBE'S PETITION FOR A WRIT
OF CERTIORARI, 406 U.S. 905, TO CONSIDER ITS CLAIM THAT THE INCOME AND
PROPERTY OF THE SKI RESORT ARE NOT PROPERLY SUBJECT TO STATE TAXATION. 
WE AFFIRM IN PART AND IN PART REVERSE. 

        I 

AT THE OUTSET, WE REJECT--AS DID THE STATE COURT--THE BROAD
ASSERTION THAT THE FEDERAL GOVERNMENT HAS EXCLUSIVE JURISDICTION OVER
THE TRIBE FOR ALL PURPOSES AND THAT THE STATE IS THEREFORE PROHIBITED
FROM ENFORCING ITS REVENUE LAWS AGAINST ANY TRIBAL ENTERPRISE "(WHETHER
THE ENTERPRISE IS LOCATED ON OR OFF TRIBAL LAND."  /3/ 

[[HC148'(ORIGINAL DOCUMENT PAGE 148)'  GENERALIZATIONS ON THIS
SUBJECT HAVE BECOME PARTICULARLY TREACHEROUS.  THE CONCEPTUAL CLARITY
OF MR. CHIEF JUSTICE MARSHALL'S VIEW IN WORCESTER V. GEORGIA, 6 PET.
515, 556 - 561 (1832), HAS GIVEN WAY TO MORE INDIVIDUALIZED TREATMENT
OF PARTICULAR TREATIES AND SPECIFIC FEDERAL STATUTES, INCLUDING
STATEHOOD ENABLING LEGISLATION, AS THEY, TAKEN TOGETHER, AFFECT THE
RESPECTIVE RIGHTS OF STATES, INDIANS, AND THE FEDERAL GOVERNMENT.  SEE
MCCLANAHAN V. ARIZONA STATE TAX COMM'N, POST, P. 164; ORGANIZED VILLAGE
OF KAKE V. EGAN, 369 U.S. 60, 71 - 73 (1962).  THE UPSHOT HAS BEEN THE
REPEATED STATEMENTS OF THIS COURT TO THE EFFECT THAT, EVEN ON
RESERVATIONS, STATE LAWS MAY BE APPLIED UNLESS SUCH APPLICATION WOULD
INTERFERE WITH RESERVATION SELF-GOVERNMENT OR WOULD IMPAIR A RIGHT
GRANTED OR RESERVED BY FEDERAL LAW.  ORGANIZED VILLAGE OF KAKE, SUPRA,
AT 75; WILLIAMS V. LEE, 358 U.S. 217 (1959); NEW YORK EX REL. RAY V.
MARTIN, 326 U.S. 496, 499 (1946); DRAPER V. UNITED STATES, 164 U.S. 240
(1896).  EVEN SO, IN THE SPECIAL AREA OF STATE TAXATION, ABSENT CESSION
OF JURISDICTION OR OTHER FEDERAL STATUTES PERMITTING IT, THERE HAS BEEN
NO SATISFACTORY AUTHORITY FOR TAXING INDIAN RESERVATION LANDS OR INDIAN
INCOME FROM ACTIVITIES CARRIED ON WITHIN THE BOUNDARIES OF THE
RESERVATION, AND MCCLANAHAN V. ARIZONA STATE TAX COMM'N, SUPRA, LAYS TO
REST ANY DOUBT IN THIS RESPECT BY HOLDING THAT SUCH TAXATION IS NOT
PERMISSIBLE ABSENT CONGRESSIONAL CONSENT. 

BUT TRIBAL ACTIVITIES CONDUCTED OUTSIDE THE RESERVATION PRESENT
DIFFERENT CONSIDERATIONS.  "STATE AUTHORITY OVER INDIANS IS YET MORE
EXTENSIVE OVER ACTIVITIES . . . NOT ON ANY RESERVATION."  ORGANIZED
VILLAGE OF KAKE, SUPRA, AT 75.  ABSENT EXPRESS FEDERAL LAW TO THE
CONTRARY, INDIANS GOING BEYOND RESERVATION BOUNDARIES HAVE GENERALLY
BEEN HELD SUBJECT TO NONDISCRIMINATORY STATE LAW OTHERWISE APPLICABLE
TO ALL CITIZENS OF THE STATE. 

[[HC149'(ORIGINAL DOCUMENT PAGE 149)'  SEE, E. G., PUYALLUP TRIBE V.
DEPARTMENT OF GAME, 391 U.S. 392, 398 (1968); ORGANIZED VILLAGE OF
KAKE, SUPRA, AT 75 - 76; TULEE V. WASHINGTON, 315 U.S. 681, 683 (1942);
SHAW V. GIBSON-ZAHNISER OIL CORP., 276 U.S. 575 (1928); WARD V. RACE
HORSE, 163 U.S. 504 (1896).  THAT PRINCIPLE IS AS RELEVANT TO A STATE'S
TAX LAWS AS IT IS TO STATE CRIMINAL LAWS, SEE WARD V. RACE HORSE,
SUPRA, AT 516, AND APPLIES AS MUCH TO TRIBAL SKI RESORTS AS IT DOES TO
FISHING ENTERPRISES.  SEE ORGANIZED VILLAGE OF KAKE, SUPRA. 

THE ENABLING ACT FOR NEW MEXICO, 36 STAT. 557, /4/  REFLECTS THE
DISTINCTION BETWEEN ON- AND OFF-RESERVATION ACTIVITIES.  SECTION 2 OF
THE ACT PROVIDES THAT THE PEOPLE OF THE STATE DISCLAIM "ALL RIGHT AND
TITLE" TO LANDS "OWNED OR HELD BY ANY INDIAN OR INDIAN TRIBES THE RIGHT
OR TITLE TO WHICH SHALL HAVE BEEN ACQUIRED THROUGH OR FROM THE UNITED
STATES . . . AND THAT . . . THE SAME SHALL BE AND REMAIN SUBJECT TO THE
DISPOSITION AND UNDER THE ABSOLUTE JURISDICTION AND CONTROL OF THE
CONGRESS OF THE UNITED STATES."  BUT THE ACT EXPRESSLY PROVIDES, WITH
RESPECT TO TAXATION, THAT "NOTHING HEREIN . . . SHALL PRECLUDE THE SAID
STATE FROM TAXING, AS OTHER LANDS AND OTHER PROPERTY ARE TAXED, ANY
LANDS AND OTHER PROPERTY OUTSIDE OF AN INDIAN RESERVATION OWNED OR HELD
BY ANY INDIAN, SAVE AND EXCEPT SUCH LANDS AS HAVE BEEN GRANTED . . . OR
AS MAY BE GRANTED OR CONFIRMED TO ANY INDIAN OR INDIANS UNDER ANY ACT
OF CONGRESS, BUT . . . ALL SUCH LANDS SHALL BE EXEMPT FROM TAXATION BY
SAID STATE (ONLY) SO LONG AND TO SUCH EXTENT AS CONGRESS HAS PRESCRIBED
OR MAY HEREAFTER PRESCRIBE."  IT IS THUS CLEAR THAT IN TERMS OF GENERAL
POWER NEW MEXICO RETAINED THE RIGHT TO TAX, UNLESS CONGRESS FORBADE IT,
ALL INDIAN LAND AND INDIAN ACTIVITIES LOCATED OR OCCURRING "OUTSIDE OF
AN INDIAN RESERVATION."  /5/ 

[[HC150'(ORIGINAL DOCUMENT PAGE 150)' 

WE ALSO REJECT THE BROAD CLAIM THAT THE INDIAN REORGANIZATION ACT OF
1934 RENDERED THE TRIBE'S OFF-RESERVATION SKI RESORT A FEDERAL
INSTRUMENTALITY CONSTITUTIONALLY IMMUNE FROM STATE TAXES OF ALL SORTS. 
M'CULLOCH V. MARYLAND, 4 WHEAT.  316 (1819).  THE INTERGOVERNMENTAL
IMMUNITY DOCTRINE WAS ONCE MUCH IN VOGUE IN A VARIETY OF CONTEXTS AND,
WITH RESPECT TO INDIAN AFFAIRS, WAS CONSISTENTLY HELD TO BAR A STATE
TAX ON THE LESSEES OF, OR THE PRODUCT OR INCOME FROM, RESTRICTED LANDS
OF TRIBES OR INDIVIDUAL INDIANS.  THE THEORY WAS THAT A FEDERAL
INSTRUMENTALITY WAS INVOLVED AND THAT THE TAX WOULD INTERFERE WITH THE
GOVERNMENT'S REALIZING THE MAXIMUM RETURN FOR ITS WARDS.  THIS APPROACH
DID NOT SURVIVE; ITS RISE AND DECLINE IN INDIAN AFFAIRS IS DESCRIBED
AND REFLECTED IN HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376
(1938); OKLAHOMA TAX COMM'N V. UNITED STATES, 319 U.S. 598 (1943); AND
OKLAHOMA TAX COMM'N V. TEXAS CO., 336 U.S. 342 (1949), WHERE THE COURT
CUT TO THE BONE THE PROPOSITION THAT RESTRICTED INDIAN LANDS AND THE
PROCEEDS FROM THEM WERE--AS A MATTER OF CONSTITUTIONAL LAW-
AUTOMATICALLY EXEMPT FROM STATE TAXATION.  RATHER, THE COURT HELD THAT
CONGRESS HAS THE POWER "TO IMMUNIZE THESE LESSEES FROM THE TAXES WE
THINK THE CONSTITUTION PERMITS OKLAHOMA TO IMPOSE IN THE ABSENCE OF
SUCH ACTION"  AND THAT "(THE QUESTION WHETHER IMMUNITY SHALL BE
EXTENDED IN SITUATIONS LIKE THESE IS ESSENTIALLY LEGISLATIVE IN
CHARACTER."  OKLAHOMA TAX COMM'N V. TEXAS CO., SUPRA, AT 365 - 366. 

THE INDIAN REORGANIZATION ACT OF 1934 NEITHER REQUIRES NOR COUNSELS
US TO RECOGNIZE THIS TRIBAL BUSINESS VENTURE AS A FEDERAL
INSTRUMENTALITY. 

[[HC151'(ORIGINAL DOCUMENT PAGE 151)'  CONGRESS ITSELF FELT IT
NECESSARY TO ADDRESS THE IMMUNITY QUESTION AND TO PROVIDE TAX IMMUNITY
TO THE EXTENT IT DEEMED DESIRABLE.  THERE IS, THEREFORE, NO STATUTORY
INVITATION TO CONSIDER PROJECTS UNDERTAKEN PURSUANT TO THE ACT AS
FEDERAL INSTRUMENTALITIES GENERALLY AND AUTOMATICALLY IMMUNE FROM STATE
TAXATION.  UNQUESTIONABLY, THE ACT REFLECTED A NEW POLICY OF THE
FEDERAL GOVERNMENT AND AIMED TO PUT A HALT TO THE LOSS OF TRIBAL LANDS
THROUGH ALLOTMENT.  IT GAVE THE SECRETARY OF THE INTERIOR POWER TO
CREATE NEW RESERVATIONS, AND TRIBES WERE ENCOURAGED TO REVITALIZE THEIR
SELF-GOVERNMENT THROUGH THE ADOPTION OF CONSTITUTIONS AND BYLAWS AND
THROUGH THE CREATION OF CHARTERED CORPORATIONS, WITH POWER TO CONDUCT
THE BUSINESS AND ECONOMIC AFFAIRS OF THE TRIBE.  /6/  AS WAS TRUE IN
THE CASE BEFORE US, A TRIBE TAKING ADVANTAGE OF THE ACT MIGHT GENERATE
SUBSTANTIAL REVENUES FOR THE EDUCATION AND THE SOCIAL AND ECONOMIC
WELFARE OF ITS PEOPLE.  /7/  SO VIEWED, AN ENTERPRISE SUCH AS THE SKI
RESORT IN THIS CASE SERVES A FEDERAL FUNCTION WITH RESPECT TO THE
GOVERNMENT'S ROLE IN INDIAN AFFAIRS.  BUT THE "MERE FACT THAT PROPERTY
IS USED, AMONG OTHERS, BY THE UNITED STATES AS AN INSTRUMENT FOR
EFFECTING ITS PURPOSE DOES NOT RELIEVE IT FROM STATE TAXATION." 
CHOCTAW, OKLAHOMA & GULF R. CO. V. MACKEY, 256 U.S. 531, 536 (1921). 
SEE ALSO HENDERSON BRIDGE CO. V. KENTUCKY, 166 U.S. 150, 154 (1897). 

THE INTENT AND PURPOSE OF THE REORGANIZATION ACT WAS "TO
REHABILITATE THE INDIAN'S ECONOMIC LIFE AND TO GIVE HIM A CHANCE TO
DEVELOP THE INITIATIVE DESTROYED BY A CENTURY OF OPPRESSION AND
PATERNALISM." 

[[HC152'(ORIGINAL DOCUMENT PAGE 152)' H. R. REP. NO. 1804, 73D
CONG., 2D SESS., 6 (1934).  SEE ALSO S. REP. NO. 1080, 73D CONG., 2D
SESS., 1 (1934).  AS SENATOR WHEELER, ON THE FLOOR, PUT IT: 

     "THIS BILL . . . SEEKS TO GET AWAY FROM THE BUREAUCRATIC

  CONTROL OF THE INDIAN DEPARTMENT, AND IT SEEKS FURTHER TO GIVE

  THE INDIANS THE CONTROL OF THEIR OWN AFFAIRS AND OF THEIR OWN

  PROPERTY; TO PUT IT IN THE HANDS EITHER OF AN INDIAN COUNCIL OR

  IN THE HANDS OF A CORPORATION TO BE ORGANIZED BY THE INDIANS." 

  78 CONG. REC. 11125. 

REPRESENTATIVE HOWARD EXPLAINED THAT: 

"THE PROGRAM OF SELF-SUPPORT AND OF BUSINESS AND CIVIC EXPERIENCE IN
THE MANAGEMENT OF THEIR OWN AFFAIRS, COMBINED WITH THE PROGRAM OF
EDUCATION, WILL PERMIT INCREASING NUMBERS OF INDIANS TO ENTER THE WHITE
WORLD ON A FOOTING OF EQUAL COMPETITION."  ID., AT 11732.  /8/ 

THE REORGANIZATION ACT DID NOT STRIP INDIAN TRIBES AND THEIR
RESERVATION LANDS OF THEIR HISTORIC IMMUNITY FROM STATE AND LOCAL
CONTROL.  /9/  BUT, IN THE CONTEXT OF THE REORGANIZATION ACT, WE THINK
IT UNREALISTIC TO CONCLUDE THAT CONGRESS CONCEIVED OF OFF-RESERVATION
TRIBAL ENTERPRISES "VIRTUALLY AS AN ARM OF THE GOVERNMENT." 

[[HC153'(ORIGINAL DOCUMENT PAGE 153)'  DEPARTMENT OF EMPLOYMENT V.
UNITED STATES, 385 U.S. 355, 359 - 360 (1966).  CF. CLALLAM COUNTY V.
UNITED STATES, 263 U.S. 341 (1923).  ON THE CONTRARY, THE AIM WAS TO
DISENTANGLE THE TRIBES FROM THE OFFICIAL BUREAUCRACY.  THE COURT'S
DECISION IN ORGANIZED VILLAGE OF KAKE, SUPRA, WHICH INVOLVED TRIBES
ORGANIZED UNDER THE REORGANIZATION ACT, DEMONSTRATES THAT OFF
RESERVATION ACTIVITIES ARE WITHIN THE REACH OF STATE LAW.  SEE ALSO
PUYALLUP TRIBE, 391 U.S., AT 398.  WHAT WAS SAID IN SHAW V. GIBSON
ZAHNISER OIL CORP., 276 U.S. 575 (1928), IS RELEVANT HERE.  AT ISSUE
THERE WAS THE TAXABILITY OF OFF-RESERVATION INDIAN LAND PURCHASED WITH
CONSENT OF THE SECRETARY OF THE INTERIOR WITH THE ACCUMULATED ROYALTIES
FROM THE INDIVIDUAL INDIAN'S RESTRICTED ALLOTTED LANDS. 

[[HC154'(ORIGINAL DOCUMENT PAGE 154)'  ALIENATION OF THE PURCHASED
LAND WAS FEDERALLY RESTRICTED.  IN REJECTING A CLAIM THAT STATE
TAXATION OF THE LAND WAS BARRED BY THE FEDERAL-INSTRUMENTALITY
DOCTRINE, /10/  THE THEN MR. JUSTICE STONE WROTE FOR A UNANIMOUS
COURT: 

    "WHAT GOVERNMENTAL INSTRUMENTALITIES WILL BE HELD FREE FROM

  STATE TAXATION, THOUGH CONGRESS HAS NOT EXPRESSLY SO PROVIDED,

  CANNOT BE DETERMINED APART FROM THE PURPOSE AND CHARACTER OF THE

  LEGISLATION CREATING THEM . . . .

        .          .          .          . 

     "THE EARLY LEGISLATION AFFECTING THE INDIANS HAS AS ITS

  IMMEDIATE OBJECT THE CLOSEST CONTROL BY THE GOVERNMENT OF THEIR

LIVES AND PROPERTY.  THE FIRST AND PRINCIPAL NEED THEN WAS THAT

  THEY SHOULD BE SHIELDED ALIKE FROM THEIR OWN IMPROVIDENCE AND THE

  SPOLIATION OF OTHERS BUT THE ULTIMATE PURPOSE WAS TO GIVE THEM

  THE MORE INDEPENDENT AND RESPONSIBLE STATUS OF CITIZENS AND

  PROPERTY OWNERS . . . .

  .          .          .          . 

     "IN A BROAD SENSE ALL LANDS WHICH THE INDIANS ARE PERMITTED TO

  PURCHASE OUT OF THE TAXABLE LANDS OF THE STATE IN THIS PROCESS OF

  THEIR EMANCIPATION AND ASSUMPTION OF THE RESPONSIBILITY OF

  CITIZENSHIP, WHETHER RESTRICTED OR NOT, MAY BE SAID TO BE

  INSTRUMENTALITIES IN THAT PROCESS.  BUT . . . (TO HOLD THEM

  IMMUNE WOULD BE INCONSISTENT WITH ONE OF THE VERY PURPOSES OF

  THEIR CREATION, TO EDUCATE THE INDIANS IN RESPONSIBILITY . . ." 

[[HC155'(ORIGINAL DOCUMENT PAGE 155)'

  ID., AT 578 - 581.     WE ACCORDINGLY DECLINE THE INVITATION TO
RESURRECT THE EXPANSIVE VERSION OF THE INTERGOVERNMENTAL-IMMUNITY
DOCTRINE THAT HAS BEEN SO CONSISTENTLY REJECTED IN MODERN TIMES. 

II 

THE TRIBE'S BROAD CLAIMS OF TAX IMMUNITY MUST THEREFORE BE
REJECTED.  BUT THERE REMAINS TO BE CONSIDERED THE SCOPE OF THE IMMUNITY
SPECIFICALLY AFFORDED BY ^ 5 OF THE INDIAN REORGANIZATION ACT.  25
U.S.C. ^ 465. 

        A 

PURSUANT TO ANY PROVISION OF THE ACT "SHALL BE TAKEN IN THE NAME OF THE
UNITED STATES IN TRUST FOR THE INDIAN TRIBE OR INDIVIDUAL INDIAN FOR
WHICH THE LAND IS ACQUIRED, AND SUCH LANDS OR RIGHTS SHALL BE EXEMPT
FROM STATE AND LOCAL TAXATION."  /11/  ON ITS FACE, THE STATUTE EXEMPTS
LAND AND RIGHTS IN LAND, NOT INCOME DERIVED FROM ITS USE.  IT IS TRUE
THAT A STATUTORY TAX EXEMPTION FOR "LANDS" MAY, IN LIGHT OF ITS CONTEXT
AND PURPOSES, BE CONSTRUED TO SUPPORT AN EXEMPTION FOR TAXATION ON
INCOME DERIVED FROM THE LAND. 

[[HC156'(ORIGINAL DOCUMENT PAGE 156)'  SEE SQUIRE V. CAPOEMAN, 351
U.S. 1 (1956); CF. SUPERIOR BATH HOUSE CO. V. MCCARROLL, 312 U.S. 176
(1941).  /12/  BUT, ABSENT CLEAR STATUTORY GUIDANCE, COURTS ORDINARILY
WILL NOT IMPLY TAX EXEMPTIONS AND WILL NOT EXEMPT OFF-RESERVATION
INCOME TAX SIMPLY BECAUSE THE LAND FROM WHICH IT IS DERIVED, OR ITS
OTHER SOURCE IS ITSELF EXEMPT FROM TAX. 

"THIS COURT HAS REPEATEDLY SAID THAT TAX EXEMPTIONS ARE NOT GRANTED
BY IMPLICATION . . . . IT HAS APPLIED THAT RULE TO TAXING ACTS
AFFECTING INDIANS AS TO ALL OTHERS . . . . IF CONGRESS INTENDS TO
PREVENT THE STATE OF OKLAHOMA FROM LEVYING A GENERAL NON-DISCRIMINATORY
ESTATE TAX APPLYING ALIKE TO ALL ITS CITIZENS, IT SHOULD SAY SO IN
PLAIN WORDS.  SUCH A CONCLUSION CANNOT REST ON DUBIOUS INFERENCES." 
OKLAHOMA TAX COMM'N V. UNITED STATES, 319 U.S., AT 606 - 607.  SEE
SQUIRE V. CAPOEMAN, SUPRA, AT 6.  ABSENT A "DEFINITELY EXPRESSED"
EXEMPTION, AN INDIAN'S ROYALTY INCOME FROM INDIAN OIL LANDS IS SUBJECT
TO THE FEDERAL INCOME TAX ALTHOUGH THE SOURCE OF THE INCOME MAY BE
EXEMPT FROM TAX.  CHOTEAU V. BURNET, 283 U.S. 691, 696 - 697 (1931). 
THE COURT HAS ALSO HELD THAT A STATE, AS WELL AS THE FEDERAL
GOVERNMENT, MAY TAX AN INDIAN'S PRO RATA SHARE OF INCOME FROM A TRIBE'S
RESTRICTED MINERAL RESOURCES. 

[[HC157'(ORIGINAL DOCUMENT PAGE 157)'  LEAHY V. STATE TREASURER, 297
U.S. 420 (1936).  LESSEES OF OTHERWISE EXEMPT INDIAN LANDS ARE ALSO
SUBJECT TO STATE TAXATION.  OKLAHOMA TAX COMM'N V. TEXAS CO., 336 U.S.
342 (1949). 

ON THE FACE OF ^ 465, THEREFORE, THERE IS NO REASON TO HOLD THAT IT
FORBIDS INCOME AS WELL AS PROPERTY TAXES.  NOR DOES THE LEGISLATIVE
HISTORY SUPPORT ANY OTHER CONCLUSION.  AS WE HAVE NOTED, SEVERAL
EXPLICIT PROVISIONS ENCOMPASSING A BROAD TAX IMMUNITY FOR CHARTERED
INDIAN COMMUNITIES WERE DROPPED FROM THE BILLS THAT PRECEDED THE
WHEELER-HOWARD BILL.  SEE N. 9, SUPRA.  SIMILARLY, THE PREDECESSOR TO
THE EXEMPTION EMBODIED IN ^ 465 DEALT ONLY WITH LANDS ACQUIRED FOR NEW
RESERVATIONS OR FOR ADDITIONS TO EXISTING RESERVATIONS.  1934 HOUSE
HEARINGS 11.  HERE, THE RIGHTS AND LAND WERE ACQUIRED BY THE TRIBE
BEYOND ITS RESERVATION BORDERS FOR THE PURPOSE OF CARRYING ON A
BUSINESS ENTERPRISE AS ANTICIPATED BY ^^ 476 AND 477 OF THE ACT.  /13/
THESE PROVISIONS WERE DESIGNED TO ENCOURAGE TRIBAL ENTERPRISES "TO
ENTER THE WHITE WORLD ON A FOOTING OF EQUAL COMPETITION."  78 CONG.
REC. 11732.  IN THIS CONTEXT, WE WILL NOT IMPLY AN EXPANSIVE IMMUNITY
FROM ORDINARY INCOME TAXES THAT BUSINESSES THROUGHOUT THE STATE ARE
SUBJECT TO.  WE THEREFORE HOLD THAT THE EXEMPTION IN ^ 465 DOES NOT
ENCOMPASS OR BAR THE COLLECTION OF NEW MEXICO'S NONDISCRIMINATORY GROSS
RECEIPTS TAX AND THAT THE TRIBE'S SKI RESORT IS SUBJECT TO THAT TAX. 

[[HC158'(ORIGINAL DOCUMENT PAGE 158)'

        B 

WE REACH A DIFFERENT CONCLUSION WITH RESPECT TO THE COMPENSATING USE
TAX IMPOSED ON THE PERSONALTY INSTALLED IN THE CONSTRUCTION OF THE SKI
LIFTS.  ACCORDING TO THE STIPULATION OF FACTS, THAT PERSONAL PROPERTY
HAS BEEN "PERMANENTLY ATTACHED TO THE REALTY."  IN VIEW OF ^ 465, THESE
PERMANENT IMPROVEMENTS ON THE TRIBE'S TAX-EXEMPT LAND WOULD CERTAINLY
BE IMMUNE FROM THE STATE'S AD VALOREM PROPERTY TAX.  SEE UNITED STATES
V. RICKERT, 188 U.S. 432, 441 - 443 (1903).  WE THINK THE SAME IMMUNITY
EXTENDS TO THE COMPENSATING USE TAX ON THE PROPERTY.  THE
JURISDICTIONAL BASIS FOR USE TAXES IS THE USE OF THE PROPERTY IN THE
STATE.  SEE HENNEFORD V. SILAS MASON CO., 300 U.S. 577 (1937); MCLEOD
V. J. E. DILWORTH CO., 322 U.S. 327, 330 (1944).  IT HAS LONG BEEN
RECOGNIZED THAT "USE" IS AMONG THE "BUNDLE OF PRIVILEGES THAT MAKE UP
PROPERTY OR OWNERSHIP" OF PROPERTY AND, IN THIS SENSE AT LEAST, A TAX
UPON "USE" IS A TAX UPON THE PROPERTY ITSELF.  HENNEFORD V. SILAS MASON
CO., SUPRA, AT 582.  THIS IS NOT TO SAY THAT USE TAXES ARE FOR ALL
PURPOSES TO BE DEEMED SIMPLE AD VALOREM PROPERTY TAXES.  SEE, E. G.,
UNITED STATES V. DETROIT, 355 U.S. 466 (1958), AND ITS COMPANION CASES;
SULLIVAN V. UNITED STATES, 395 U.S. 169 (1969).  BUT USE OF PERMANENT
IMPROVEMENTS UPON LAND IS SO INTIMATELY CONNECTED WITH USE OF THE LAND
ITSELF THAT AN EXPLICIT PROVISION RELIEVING THE LATTER OF STATE TAX
BURDENS MUST BE CONSTRUED TO ENCOMPASS AN EXEMPTION FOR THE FORMER. 
"EVERY REASON THAT CAN BE URGED TO SHOW THAT THE LAND WAS NOT SUBJECT
TO LOCAL TAXATION APPLIES TO THE ASSESSMENT AND TAXATION OF THE
PERMANENT IMPROVEMENTS." 

[[HC159'(ORIGINAL DOCUMENT PAGE 159)'  UNITED STATES V. --RICKERT,
SUPRA, AT 442. 

THE JUDGMENT OF THE COURT OF APPEALS IS

AFFIRMED IN PART AND REVERSED IN PART. 

/1/  IN 1936, THE TRIBE ADOPTED A CONSTITUTION, PURSUANT TO ^ 16 OF
THE ACT, 25 U.S.C. ^ 476. 

/2/  THE TRIBE ASSERTS THAT "NO SALES TAX (GROSS RECEIPTS TAX) IS
BEING . . . CHARGED FOR ANY SKI RENTALS, LIFT TICKETS, FOOD OR
BEVERAGES." 

/3/  BRIEF FOR PETITIONER 16. 

/4/  A CORRESPONDING PROVISION APPEARS IN THE CONSTITUTION OF THE
STATE OF NEW MEXICO, ART. XXI, ^ 2. 

/5/  THE TRIBE'S TREATY WITH THE UNITED STATES, 10 STAT. 979, WHICH
ACKNOWLEDGES THAT THE TRIBE IS "EXCLUSIVELY UNDER THE LAWS,
JURISDICTION, AND GOVERNMENT OF THE UNITED STATES . . . ," DOES NOT
ALTER THE OBVIOUS EFFECT OF THE STATE'S ADMISSION LEGISLATION.  SEE, E.
G., ORGANIZED VILLAGE OF KAKE V. EGAN, 369 U.S. 60, 67 - 68 (1962), AND
CASES CITED THEREIN. 

/6/  SEE GENERALLY U.S. DEPT. OF THE INTERIOR, FEDERAL INDIAN LAW
129 - 132 (1958), A REVISION OF HANDBOOK OF FEDERAL INDIAN LAW,
PREPARED UNDER THE EDITORIAL DIRECTION OF FELIX S. COHEN, FIRST PRINTED
IN 1940 (HEREINAFTER FEDERAL INDIAN LAW); COMMENT, TRIBAL SELF
GOVERNMENT AND THE INDIAN REORGANIZATION ACT OF 1934, 70 MICH. L. REV.
955 (1972). 

/7/  FOR OTHER EXAMPLES SEE COMMENT, N. 6, SUPRA, AT 983 - 985.  SEE
ALSO J. COLLIER, ON THE GLEAMING WAY 149, 129 - 149 (1962). 

/8/  SEE ALSO ID., AT 11727, 11731 - 11732 (REMARKS OF REP. HOWARD);
THE STATEMENTS OF MR. JOHN COLLIER, THE COMMISSIONER OF INDIAN AFFAIRS,
IN HEARINGS ON H. R. 7902, BEFORE THE HOUSE COMMITTEE ON INDIAN
AFFAIRS, 73D CONG., 2D SESS., 37, 60, 65 - 67 (1934) (HEREINAFTER 1934
HOUSE HEARINGS). 

/9/  THE PREDECESSOR BILLS TO THE WHEELER-HOWARD ACT, H. R. 7902 AND
S. 2755 (RESPECTIVELY 78 CONG. REC. 2437 AND 2440), EXPRESSLY PROVIDED
THAT THE CHARTERED INDIAN COMMUNITIES MAY ACT "AS A FEDERAL AGENCY IN
THE ADMINISTRATION OF INDIAN AFFAIRS," AND, CORRESPONDINGLY, THAT THE
UNITED STATES WOULD NOT "BE LIABLE FOR ANY ACT DONE . . . BY A
CHARTERED INDIAN COMMUNITY."  TITLE I, ^ 4 (I).  1934 HOUSE HEARINGS
3.  THE BILLS FURTHER PROVIDED THAT:  "NOTHING IN THIS ACT SHALL BE
CONSTRUED AS RENDERING THE PROPERTY OF ANY INDIAN COMMUNITY . . .
SUBJECT TO TAXATION BY ANY STATE OR SUBDIVISION THEREOF . . . ."  TIT.
I, ^ 11.  ID., AT 5.  THE MEMORANDUM OF JOHN COLLIER, WHICH ACCOMPANIED
THE BILLS, STATED THAT "(AS A FEDERAL AGENCY, THE PROPERTY OF A
CHARTERED COMMUNITY IS CONSTITUTIONALLY EXEMPT FROM STATE TAXATION . .
. ."  ID., AT 25.  THESE EXTENSIVE PROVISIONS FOR TAX IMMUNITY WERE
DISCARDED IN THE WHEELER-HOWARD ACT, ALONG WITH THE ACCOMPANYING
PROVISIONS FOR MORE EXTENSIVE GOVERNMENTAL POWERS ON THE PART OF THE
CHARTERED COMMUNITIES.  SEE H. R. REP. NO. 1804, SUPRA, AT 6.  WE DO
NOT READ THIS LEGISLATIVE HISTORY, HOWEVER, AS SUGGESTING THAT CONGRESS
INTENDED TO REMOVE THE TRADITIONAL TAX IMMUNITY THAT INDIAN TRIBES
ENJOYED ON THEIR RESERVATIONS.  THIS READING FINDS SUPPORT IN FELIX S.
COHEN'S TREATISE, SEE FEDERAL INDIAN LAW 852 - 853, ALTHOUGH WE BELIEVE
THAT THE BROADER THRUST OF HIS STATEMENT--THAT ANY "ATTEMPT BY A STATE
TO IMPOSE INCOME OR OTHER TYPES OF TAXES" UPON "TRIBAL CORPORATIONS
ORGANIZED UNDER THE INDIAN REORGANIZATION ACT . . . WOULD STILL BE HELD
A DIRECT BURDEN ON A FEDERAL INSTRUMENTALITY"--IS NOT SUPPORTED BY THE
MODERN CASES AND SHOULD BE READ WITH AND IN THE LIGHT OF OTHER
DISCUSSIONS OF THE IMMUNITY DOCTRINE IN PARTICULARIZED CONTEXTS.  SEE
ID., AT 872 - 873, 864 - 873. 

/10/  THE CLAIM OF TAX IMMUNITY WAS MADE BY A NON-INDIAN LESSEE,
UNDER THE RULE OF GILLESPIE V. OKLAHOMA, 257 U.S. 501 (1922), WHICH WAS
ITSELF OVERRULED IN OKLAHOMA TAX COMM'N V. TEXAS CO., 336 U.S. 342
(1949), OVER TWO DECADES AFTER SHAW.  AS A DECISION WITH RESPECT TO
CONSTITUTIONALLY MANDATED INTERGOVERNMENTAL IMMUNITY, SHAW REMAINS GOOD
LAW, ALTHOUGH ITS RESULT WAS ALTERED BY STATUTE, AS CONGRESS WAS FREE
TO DO.  SEE GENERALLY BOARD OF COUNTY COMM'RS V. SEBER, 318 U.S. 705
(1943). 

/11/  THE SKI RESORT LAND WAS NOT TECHNICALLY "ACQUIRED" "IN TRUST FOR
THE INDIAN TRIBE."  BUT, AS THE SOLICITOR GENERAL HAS POINTED OUT, "IT
WOULD HAVE BEEN MEANINGLESS FOR THE UNITED STATES, WHICH ALREADY HAD
TITLE TO THE FOREST, TO CONVEY TITLE TO ITSELF FOR THE USE OF THE
TRIBE."  BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 13.  WE THINK THE
LEASE ARRANGEMENT HERE IN QUESTION WAS SUFFICIENT TO BRING THE TRIBE'S
INTEREST IN THE LAND WITHIN THE IMMUNITY AFFORDED BY ^ 465.  IT SHOULD
PERHAPS BE NOTED THAT THE TRIBE HAS NOT SUGGESTED THAT IT IS IMMUNE
FROM TAXATION BY VIRTUE OF ITS STATUS AS A LESSEE OF LAND OWNED BY THE
FEDERAL GOVERNMENT.  SEE, E. G., UNITED STATES V. DETROIT, 355 U.S. 466
(1958); JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134 (1937); CF.
HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376 (1938); OKLAHOMA
TAX COMM'N V. TEXAS CO., SUPRA. 

/12/  SQUIRE V. CAPOEMAN INVOLVED THE ATTEMPTED IMPOSITION OF
FEDERAL CAPITAL GAINS TAXES ON THE SALE PRICE OF TIMBER LOGGED OFF
ALLOTTED INDIAN TIMBERLAND (LOCATED WITHIN A RESERVATION).  THE TIMBER
CONSTITUTED "THE MAJOR VALUE"--IF NOT THE ONLY PRACTICAL VALUE--OF THE
INDIAN'S ALLOTTED LAND AND IT WAS CLEAR THAT IF THE CAPITAL GAINS TAX
WAS TO APPLY, THE PURPOSES AND INTENT OF THE GENERAL ALLOTMENT ACT OF
1887 WOULD IN LARGE MEASURE HAVE BEEN FRUSTRATED.  ID., AT 10.  THE
COURT, RELYING IN PART ON "RELATIVELY CONTEMPORANEOUS OFFICIAL AND
UNOFFICIAL WRITINGS" ON THE INTENDED SCOPE OF THE INCOME TAX LAWS, ID.,
AT 9, DECLINED TO SO INTEPRET THOSE LATER ENACTED LAWS AND TO FIND THAT
THE GOVERNMENT INTENDED TO TAX ITS OWN WARD IN THIS PARTICULAR MANNER. 
IN CONTRAST TO SQUIRE, WE FIND NOTHING FUNDAMENTALLY INCONSISTENT WITH
THE INTENT OF THE INDIAN REORGANIZATION ACT IN PERMITTING THE GROSS
RECEIPTS OF THE TRIBE'S OFF-RESERVATION ENTERPRISE TO BE SUBJECT TO
NONDISCRIMINATORY STATE TAXES. 

/13/  IT IS UNCLEAR FROM THE RECORD WHETHER THE TRIBE HAS ACTUALLY
INCORPORATED ITSELF AS AN INDIAN CHARTERED CORPORATION PURSUANT TO ^
477.  BUT SEE CHARTERS, CONSTITUTIONS AND BY-LAWS OF THE INDIAN TRIBES
OF NORTH AMERICA, PT. III, PP. 13 - 15 (G. FAY ED. 1967).  THE TRIBE'S
CONSTITUTION, HOWEVER, ADOPTED UNDER 25 U.S.C. ^ 476, GIVES ITS TRIBAL
COUNCIL THE POWERS THAT WOULD ORDINARILY BE HELD BY SUCH A CORPORATION,
ART. XI, AND BY BOTH PRACTICE AND REGULATIONS, THE TWO ENTITIES HAVE
APPARENTLY MERGED IN IMPORTANT RESPECTS.  SEE 25 CFR ^ 91.2; COMMENT,
N. 6, SUPRA, AT 973.  IN ANY EVENT, THE QUESTION OF TAX IMMUNITY CANNOT
BE MADE TO TURN ON THE PARTICULAR FORM IN WHICH THE TRIBE CHOOSES TO
CONDUCT ITS BUSINESS. 

[[DOP 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART CONCUR, DISSENTING IN PART. 

THE POWER OF CONGRESS GRANTED BY ART. I, ^ 8 "(TO REGULATE COMMERCE
. . . WITH THE INDIAN TRIBES" IS AN EXCEEDINGLY BROAD ONE.  IN THE
LIQUOR CASES THE COURT HELD THAT IT REACHED ACTS EVEN OFF INDIAN
RESERVATIONS IN AREAS NORMALLY SUBJECT TO THE POLICE POWER OF THE
STATES.  PERRIN V. UNITED STATES, 232 U.S. 478.  THE POWER GAINED
BREADTH BY REASON OF HISTORIC EXPERIENCES THAT INDUCED CONGRESS TO
TREAT INDIANS AS WARDS OF THE NATION.  SEE GRITTS V. FISHER, 224 U.S.
640, 642 - 643; UNITED STATES V. THOMAS, 151 U.S. 577, 585; UNITED
STATES V. MCGOWAN, 302 U.S. 535, 538.  THE LAWS ENACTED BY CONGRESS
VARIED FROM DECADE TO DECADE.  SEE U.S. DEPT. OF THE INTERIOR, FEDERAL
INDIAN LAW 94 - 138 (1958), WHICH IS A REVISION OF THE MONUMENTAL WORK,
HANDBOOK OF FEDERAL INDIAN LAW PREPARED BY FELIX S. COHEN AND PUBLISHED
IN 1940. 

THE PRESENT ACT, 48 STAT. 984, 25 U.S.C. ^ 461 ET SEQ., WAS ENACTED
IN 1934 WITH VARIOUS PURPOSES IN MIND, THE ONES MOST RELEVANT BEING,
FIRST, "(TO PERMIT INDIAN TRIBES TO EQUIP THEMSELVES WITH THE DEVICES
OF MODERN BUSINESS ORGANIZATION, THROUGH FORMING THEMSELVES INTO
BUSINESS CORPORATIONS," AND SECOND, "(TO ESTABLISH A SYSTEM OF
FINANCIAL CREDIT FOR INDIANS."  S. REP. NO. 1080, 73D CONG., 2D SESS.,
1. 

LOANS HAD BEEN MADE BY THE FEDERAL AGENCY TO INDIVIDUAL INDIANS, BUT
THE EXPERIENCE HAD NOT BEEN SATISFACTORY.  ID., AT 3 - 4.  THE 1934 ACT
PRECLUDED SUCH LOANS AND SET UP A $10 MILLION REVOLVING-CREDIT FUND FOR
LOANS TO INCORPORATED TRIBES.     [[HC160'(ORIGINAL DOCUMENT PAGE 160)'
THE INDUSTRY ESTABLISHED PURSUANT TO THAT ACT AND INVOLVED HERE IS A
SKI ENTERPRISE, ADJACENT TO THE RESERVATION AND LOCATED ON LANDS LEASED
FROM THE U.S. FOREST SERVICE. 

THE COURT MAKES MUCH OF THE FACT THAT THE SKI ENTERPRISE IS NOT ON
THE RESERVATION.  BUT THAT SEEMS IRRELEVANT TO ME BY REASON OF ^ 5 OF
THE ACT, WHICH PROVIDES IN PART THAT "ANY LANDS OR RIGHTS ACQUIRED"
PURSUANT TO THE 1934 ACT "SHALL BE TAKEN IN THE NAME OF THE UNITED
STATES IN TRUST FOR THE INDIAN TRIBE . . . FOR WHICH THE LAND IS
ACQUIRED, AND SUCH LANDS OR RIGHTS SHALL BE EXEMPT FROM STATE AND LOCAL
TAXATION."  25 U.S.C. ^ 465.  WHILE THE LEASE OF FOREST SERVICE LANDS
WAS NOT TECHNICALLY "ACQUIRED . . . IN TRUST FOR THE INDIAN TRIBE,"
THE COURT CONCEDES THAT THE LEASE ARRANGEMENT WAS SUFFICIENT TO BRING
THE TRIBE'S INTEREST IN THE LAND WITHIN THE IMMUNITY AFFORDED BY ^
465.  AND SO THE QUESTION RESPECTING INCOME TAXES COMES DOWN TO WHETHER
THESE TAXES ARE WITHIN THE SCOPE OF "SUCH LANDS OR RIGHTS" AS USED IN ^
5. 

I START FROM THE PREMISE MADE EXPLICIT IN THE SENATE REPORT ON THE
1934 ACT.  IT SET FORTH THE ENDORSEMENT BY PRESIDENT ROOSEVLET OF "A
NEW STANDARD OF DEALING BETWEEN THE FEDERAL GOVERNMENT AND ITS INDIAN
WARDS."  S. REP., SUPRA, AT 3.  ARTICLE 10 OF THE 1852 TREATY WITH THE
APACHES DESCRIBED THE ROLE OF THE GUARDIAN AS RESPECTS THESE WARDS:
"FOR AND IN CONSIDERATION OF THE FAITHFUL PERFORMANCE OF ALL THE
STIPULATIONS HEREIN CONTAINED, BY THE SAID APACHE'S INDIANS, THE
GOVERNMENT OF THE UNITED STATES WILL GRANT TO SAID INDIANS SUCH
DONATIONS, PRESENT, AND IMPLEMENTS, AND ADOPT SUCH OTHER LIBERAL AND
HUMANE MEASURES AS SAID GOVERNMENT MAY DEEM MEET AND PROPER."  10 STAT.
980. 

THE 1934 ACT OBVIOUSLY IS AN EFFORT BY CONGRESS TO EXTEND ITS
CONTROL TO INDIAN ECONOMIC ACTIVITIES OUTSIDE THE RESERVATION FOR THE
BENEFIT OF ITS INDIAN WARDS.  THE PHILOSOPHY PERMEATING THE PRESENT ACT
WAS ARTICULATED BY MR. CHIEF JUSTICE MARSHALL IN WORCESTER V. GEORGIA,
6 PET. 515, 556. 

[[HC161'(ORIGINAL DOCUMENT PAGE 161)' 

"FROM THE COMMENCEMENT OF OUR GOVERNMENT, COMGRESS HAS PASSED ACTS
TO REGULATE TRADE AND INTERCOURSE WITH THE INDIANS; WHICH TREAT THEM AS
NATIONS, RESPECT THEIR RIGHTS, AND MANIFEST A FIRM PURPOSE TO AFFORD
THAT PROTECTION WHICH TREATIES STIPULATE." 

AS NOTED IN WARREN TRADING POST V. TAX COMM'N, 380 U.S. 685, MOST
TAX IMMUNITIES OF INDIANS HAVE RELATED TO ACTIVITIES IN RESERVATIONS. 
BUT, AS WE STATED IN THAT CASE, THE FACT THAT THE ACTIVITIES OCCURRED
ON A RESERVATION WAS NOT THE CONTROLLING REASON, "BUT RATHER BECAUSE
CONGRESS IN THE EXERCISE OF ITS POWER GRANTED IN ART. I, ^ 8, HAS
UNDERTAKEN TO REGULATE RESERVATION TRADING IN SUCH A COMPREHENSIVE WAY
THAT THERE IS NO ROOM FOR THE STATES TO LEGISLATE ON THE SUBJECT." 
ID., AT 691 N. 18. 

THE POWERS OF CONGRESS "OVER INDIAN AFFAIRS ARE AS WIDE AS STATE
POWERS OVER NON-INDIANS," SUBJECT OF COURSE TO THE LIMITATIONS OF THE
BILL OF RIGHTS.  FEDERAL INDIAN LAW 24.  ONE ILLUSTRATION OF ITS EXTENT
IS SHOWN BY THE LIQUOR CASES ALREADY CITED.  WE DEAL HERE, HOWEVER,
WITH "TRIBAL PROPERTY"--A LEASEHOLD INTEREST IN FEDERAL LANDS ADJOINING
THE RESERVATION.  "THE TERM TRIBAL PROPERTY . . . DOES NOT DESIGNATE A
SINGLE AND DEFINITE LEGAL INSTITUTION, BUT RATHER A BROAD RANGE WITHIN
WHICH IMPORTANT VARIATIONS EXIST."  FEDERAL INDIAN LAW 590 - 591. 
THERE IS NO MAGIC IN THE WORD "RESERVATION."  UNITED STATES V. MCGOWAN
HELD THAT LAND PURCHASED BY CONGRESS FOR A TRIBE BUT OUTSIDE A
"RESERVATION" WAS NONETHELESS "INDIAN COUNTRY."  WHILE THAT CASE
INVOLVED APPLICATION OF LIQUOR LAWS, THE COURT STATED THAT "CONGRESS
ALONE HAS THE RIGHT TO DETERMINE THE MANNER IN WHICH THIS COUNTRY'S
GUARDIANSHIP OVER THE INDIANS SHALL BE CARRIED OUT," ID., AT 538, AND
THAT IT WAS IMMATERIAL WHAT THE TRACT OF THE LAND WAS CALLED.  ID., AT
539. 

IN THE PRESENT CASE, CONGRESS HAS ATTEMPTED TO GIVE THIS TRIBE AN
ECONOMIC BASE WHICH OFFERS JOB OPPORTUNITIES, A HIGHER STANDARD OF
LIVING, COMMUNITY STABILITY, PRESERVATION OF INDIAN CULTURE, AND THE
ORIENTATION OF THE TRIBE TO COMMERCIAL MATURITY. 

[[HC162'(ORIGINAL DOCUMENT PAGE 162)'  WE DEAL ONLY WITH A TRIBAL
DEVELOPED ENTERPRISE.  STATE TAXATION OF THAT ENTERPRISE INTERFERES
WITH THE FEDERAL PROJECT.  THE SKI RESORT, BEING A FEDERAL TOOL TO AID
THE TRIBE, MAY NOT BE TAXED BY THE STATE WITHOUT THE CONSENT OF
CONGRESS.  CONGRESS BY ^ 5 OF THE ACT HAS MADE THE "LANDS OR RIGHTS"
ACQUIRED FOR THE TRIBE EXEMPT FROM STATE AND LOCAL TAXATION.  SECTION
5, INDEED, STATES THAT "LANDS OR RIGHTS"  ACQUIRED UNDER THE 1934 ACT
SHALL BE HELD "IN TRUST FOR THE INDIAN TRIBE OR INDIVIDUAL INDIAN FOR
WHICH THE LAND IS ACQUIRED."  THERE IS NO MORE CONVINCING WAY TO TAX
"RIGHTS" IN LAND THAN TO IMPOSE AN INCOME TAX ON THE GROSS OR NET
INCOME FROM THOSE RIGHTS.  IF ^ 5 BE THOUGHT TO BE AMBIGUOUS, WE SHOULD
RESOLVE THE AMBIGUITY IN FAVOR OF THE TRIBE.  AS STATED IN CARPENTER V.
SHAW, 280 U.S. 363, 367, "DOUBTFUL EXPRESSIONS ARE TO BE RESOLVED IN
FAVOR OF THE WEAK AND DEFENSELESS PEOPLE WHO ARE THE WARDS OF THE
NATION, DEPENDENT UPON ITS PROTECTION AND GOOD FAITH."  IN SQUIRE V.
CAPOEMAN, 351 U.S. 1, WE RESOLVED DOUBTS RESPECTING THE FEDERAL INCOME
TAX IN FAVOR OF THE INDIAN.  THERE IS THE SAME REASON FOR TAKING THAT
COURSE HERE. 

THE TRIBAL SKI ENTERPRISE, UNLIKE THE PRIVATE ENTREPRENEUR IN
HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376, ON WHICH THE COURT
RELIES, IS PLAINLY A FEDERAL INSTRUMENTALITY--AUTHORIZED AND FINANCED
BY CONGRESS WITH THE AIM OF STARTING THE TRIBE ON COMMERCIAL VENTURES. 
THIS CASE HAS NO RELATION TO OKLAHOMA TAX COMM'N V. UNITED STATES, 319
U.S. 598, WHICH RAISED THE QUESTION WHETHER STATE INHERITANCE TAXES
COULD BE LEVIED ON RESTRICTED PROPERTY.  THE COURT ONLY HELD THAT
RESTRICTED PROPERTY, AS CREATED BY CONGRESS, CARRIED NO IMPLICATION OF
ESTATE TAX EXEMPTION. 

[[HC163'(ORIGINAL DOCUMENT PAGE 163)'  OKLAHOMA TAX COMM'N V. TEXAS
CO., 336 U.S. 342, ALSO RELIED ON BY THE COURT, MERELY HELD THAT A
LESSEE OF MINERAL RIGHTS IN INDIAN LANDS WAS NOT IMMUNIZED FROM PAYING
STATE GROSS PRODUCTION TAXES AND STATE EXCISE TAXES ON PETROLEUM
PRODUCED FROM THE LANDS.  THOSE CASES WOULD BE RELEVANT HERE IF THE
TRIBE HAD LEASED THE SKI RESORT TO AN OUTSIDER WHO SOUGHT THE TRIBAL
TAX IMMUNITY.  WE DEAL ONLY WITH AN INCOME TAX LEVIED ON A TRIBAL
CORPORATE ENTERPRISE CONDUCTED BY THE TRIBE WITH FEDERAL FUNDS ON
FEDERAL LANDS LEASED TO THE TRIBE.  FEDERAL INDIAN LAW DISTINGUISHED
THE HELVERING AND LIKE CASES RELIED ON BY THE COURT FROM AN ENTERPRISE
"ORGANIZED SOLELY TO CARRY OUT GOVERNMENTAL OBJECTIVES, SUCH AS THE
TRIBAL CORPORATIONS ORGANIZED" UNDER THE 1934 ACT WITH WHICH WE NOW
DEAL, ID., AT 852 - 853. 

IN MY VIEW, THIS STATE INCOME TAX IS BARRED BY ^ 5 THROUGH WHICH
CONGRESS HAS GIVEN TAX IMMUNITY TO THESE NEW TRIBAL ENTERPRISES. 

GEORGE E. FETTINGER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS F. RANDOLPH BURROUGHS. 

JOHN C. COOK, ASSISTANT ATTORNEY GENERAL OF NEW MEXICO, ARGUED THE
CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WAS DAVID L. NORVELL,
ATTORNEY GENERAL.* 

*BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL FRIZZELL, HARRY R. SACHSE,
CARL STRASS, AND EVA R. DATZ FOR THE UNITED STATES; BY ARTHUR LAZARUS,
JR., PHILIP P. ASHBY, ROYAL D. MARKS, AND GEORGE P. VLASSIS FOR THE
ASSOCIATION ON AMERICAN INDIAN AFFAIRS, INC., ET AL.; BY DAVID H.
GETCHES FOR THE NATIVE AMERICAN RIGHTS FUND; BY SAMUEL W. MURPHY, JR.,
AND WILLIAM C. PELSTER FOR MONTANA INTER-TRIBAL POLICY BOARD; AND BY
RAYMOND C. SIMPSON FOR AGUA CALIENTE BAND OF MISSION INDIANS. 

WILLIAM D. DEXTER, ASSISTANT ATTORNEY GENERAL OF WASHINGTON, AND
EUGENE F. CORRIGAN FILED A BRIEF FOR MULTISTATE TAX COMMISSION AS
AMICUS CURIAE URGING AFFIRMANCE. 
..END :















MCCLANAHAN V. ARIZONA STATE TAX COMMISSION, 411 U.S. 164 


       APPEAL FROM THE COURT OF APPEALS OF ARIZONA 

 NO. 71 - 834.  ARGUED DECEMBER 12, 1972--DECIDED MARCH 27,

  1973; 14 ARIZ.APP.  452, 484 P.2D 221, REVERSED. 


    THE STATE OF ARIZONA HAS NO JURISDICTION TO IMPOSE A TAX ON

  INCOME OF NAVAJO INDIANS RESIDING ON THE NAVAJO RESERVATION AND

  WHOSE INCOME IS WHOLLY DERIVED FROM RESERVATION SOURCES, AS IS

  CLEAR FROM THE RELEVANT TREATY WITH THE NAVAJOS AND FEDERAL

  STATUTES.  PP. 167 - 181. 

MARSHALL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

[[HC165'(ORIGINAL DOCUMENT PAGE 165)' 

THIS CASE REQUIRES US ONCE AGAIN TO RECONCILE THE PLENARY POWER OF
THE STATES OVER RESIDENTS WITHIN THEIR BORDERS WITH THE SEMI-AUTONOMOUS
STATUS OF INDIANS LIVING ON TRIBAL RESERVATIONS.  IN THIS INSTANCE, THE
PROBLEM ARISES IN THE CONTEXT OF ARIZONA'S EFFORTS TO IMPOSE ITS
PERSONAL INCOME TAX ON A RESERVATION INDIAN WHOSE ENTIRE INCOME DERIVES
FROM RESERVATION SOURCES.  ALTHOUGH WE HAVE REPEATEDLY ADDRESSED THE
QUESTION OF STATE TAXATION OF RESERVATION INDIANS, /1/  THE PROBLEMS
POSED BY A STATE INCOME TAX ARE APPARENTLY OF FIRST IMPRESSION IN THIS
COURT.  /2/  THE ARIZONA COURTS HAVE HELD THAT SUCH STATE TAXATION IS
PERMISSIBLE.  SEE 14 ARIZ. APP. 452, 484 P.2D 221 (1971).  WE NOTED
PROBABLE JURISDICTION, 406 U.S. 916 (1972), AND NOW REVERSE.  WE HOLD
THAT BY IMPOSING THE TAX IN QUESTION ON THIS APPELLANT, THE STATE HAS
INTERFERED WITH MATTERS WHICH THE RELEVANT TREATY AND STATUTES LEAVE TO
THE EXCLUSIVE PROVINCE OF THE FEDERAL GOVERNMENT AND THE INDIANS
THEMSELVES.  THE TAX IS THEREFORE UNLAWFUL AS APPLIED TO RESERVATION
INDIANS WITH INCOME DERIVED WHOLLY FROM RESERVATION SOURCES. 

        I 

APPELLANT IS AN ENROLLED MEMBER OF THE NAVAJO TRIBE WHO LIVES ON
THAT PORTION OF THE NAVAJO RESERVATION LOCATED WITHIN THE STATE OF
ARIZONA.  HER COMPLAINT ALLEGES THAT ALL HER INCOME EARNED DURING 1967
WAS DERIVED FROM WITHIN THE NAVAJO RESERVATION. 

[[HC166'(ORIGINAL DOCUMENT PAGE 166)'  PURSUANT TO ARIZ. REV. STAT.
ANN. ^ 43 - 188 (F) (SUPP. 1972 - 1973), $16.20 WAS WITHHELD FROM HER
WAGES FOR THAT YEAR TO COVER HER STATE INCOME TAX LIABILITY.  /3/  AT
THE CONCLUSION OF THE TAX YEAR, APPELLANT FILED A PROTEST AGAINST THE
COLLECTION OF ANY TAXES ON HER INCOME AND A CLAIM FOR A REFUND OF THE
ENTIRE AMOUNT WITHHELD FROM HER WAGES.  WHEN NO ACTION WAS TAKEN ON HER
CLAIM, SHE INSTITUTED THIS ACTION IN ARIZONA SUPERIOR COURT ON BEHALF
OF HERSELF AND THOSE SIMILARLY SITUATED, DEMANDING A RETURN OF THE
MONEY WITHHELD AND A DECLARATION THAT THE STATE TAX WAS UNLAWFUL AS
APPLIED TO RESERVATION INDIANS. 

THE TRIAL COURT DISMISSED THE ACTION FOR FAILURE TO STATE A CLAIM,
AND THE ARIZONA COURT OF APPEALS AFFIRMED.  CITING THIS COURT'S
DECISION IN WILLIAMS V. LEE, 358 U.S. 217 (1959), THE COURT OF APPEALS
HELD THAT THE TEST "IS NOT WHETHER THE ARIZONA STATE INCOME TAX
INFRINGES ON PLAINTIFF'S RIGHTS AS AN INDIVIDUAL NAVAJO INDIAN, BUT
WHETHER SUCH A TAX INFRINGES ON THE RIGHTS OF THE NAVAJO TRIBE OF
INDIANS TO BE SELF-GOVERNING."  14 ARIZ. APP., AT 454, 484 P.2D, AT
223.  THE COURT THUS DISTINGUISHED CASES DEALING WITH STATE TAXES ON
INDIAN REAL PROPERTY ON THE GROUND THAT THESE TAXES, UNLIKE THE
PERSONAL INCOME TAX, INFRINGED TRIBAL AUTONOMY. 

THE COURT THEN POINTED TO CASES HOLDING THAT STATE EMPLOYEES COULD
BE REQUIRED TO PAY FEDERAL INCOME TAXES AND THAT THE STATE HAD A
CONCOMITANT RIGHT TO TAX FEDERAL EMPLOYEES. 

[[HC167'(ORIGINAL DOCUMENT PAGE 167)'  SEE HELVERING V. GERHARDT,
304 U.S. 405 (1938); GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466
(1939).  REASONING BY ANALOGY FROM THESE CASES, THE COURT ARGUED THAT
ARIZONA'S INCOME TAX ON INDIVIDUAL NAVAJO INDIANS DID NOT "(CAUSE) AN
IMPAIRMENT OF THE RIGHT OF THE NAVAJO TRIBE TO BE SELF GOVERNING."  14
ARIZ. APP., AT 455, 484 P.2D, AT 224. 

NOR DID THE COURT FIND ANYTHING IN THE ARIZONA ENABLING ACT, 36
STAT. 557, TO PREVENT THE STATE FROM TAXING RESERVATION INDIANS.  THAT
ACT, THE RELEVANT LANGUAGE OF WHICH IS DUPLICATED IN THE ARIZONA
CONSTITUTION, DISCLAIMS STATE TITLE OVER INDIAN LANDS AND REQUIRES THAT
SUCH LANDS SHALL REMAIN "UNDER THE ABSOLUTE JURISDICTION AND CONTROL OF
THE CONGRESS OF THE UNITED STATES."  36 STAT. 569.  BUT THE ARIZONA
COURT, RELYING ON THIS COURT'S DECISION IN ORGANIZED VILLAGE OF KAKE V.
EGAN, 369 U.S. 60 (1962), HELD THAT THE ENABLING ACT NONETHELESS
PERMITTED CONCURRENT STATE JURISDICTION SO LONG AS TRIBAL SELF
GOVERNMENT REMAINED INTACT.  SINCE AN INDIVIDUAL INCOME TAX DID NOT
INTERFERE WITH TRIBAL SELF-GOVERNMENT, IT FOLLOWED THAT APPELLANT HAD
FAILED TO STATE A CLAIM.  THE ARIZONA SUPREME COURT DENIED A PETITION
FOR REVIEW OF THIS DECISION, AND THE CASE CAME HERE ON APPEAL.  SEE 28
U.S.C. ^ 1257 (2). 

        II 

IT MAY BE HELPFUL TO BEGIN OUR DISCUSSION OF THE LAW APPLICABLE TO
THIS COMPLEX AREA WITH A BRIEF STATEMENT OF WHAT THIS CASE DOES NOT
INVOLVE.  WE ARE NOT HERE DEALING WITH INDIANS WHO HAVE LEFT OR NEVER
INHABITED RESERVATIONS SET ASIDE FOR THEIR EXCLUSIVE USE OR WHO DO NOT
POSSESS THE USUAL ACCOUTREMENTS OF TRIBAL SELF-GOVERNMENT. 

[[HC168'(ORIGINAL DOCUMENT PAGE 168)'  SEE, E. G., ORGANIZED VILLAGE
OF KAKE V. EGAN, SUPRA; METLAKATLA INDIAN COMMUNITY V. EGAN, 369 U.S.
45 (1962); OKLAHOMA TAX COMM'N V. UNITED STATES, 319 U.S. 598 (1943). 
NOR ARE WE CONCERNED WITH EXERTIONS OF STATE SOVEREIGNTY OVER NON
INDIANS WHO UNDERTAKE ACTIVITY ON INDIAN RESERVATIONS.  SEE, E. G.,
THOMAS V. GAY, 169 U.S. 264 (1898); UTAH & NORTHERN R. CO. V. FISHER,
116 U.S. 28 (1885).  CF. SURPLUS TRADING CO. V. COOK, 281 U.S. 647, 651
(1930).  NOR, FINALLY, IS THIS A CASE WHERE THE STATE SEEKS TO REACH
ACTIVITY UNDERTAKEN BY RESERVATION INDIANS ON NONRESERVATION LANDS. 
SEE, E. G., MESCALERO APACHE TRIBE V. JONES, ANTE, P. 145.  RATHER,
THIS CASE INVOLVES THE NARROW QUESTION WHETHER THE STATE MAY TAX A
RESERVATION INDIAN FOR INCOME EARNED EXCLUSIVELY ON THE RESERVATION. 

THE PRINCIPLES GOVERNING THE RESOLUTION OF THIS QUESTION ARE NOT
NEW.  ON THE CONTRARY, "(THE POLICY OF LEAVING INDIANS FREE FROM STATE
JURISDICTION AND CONTROL IS DEEPLY ROOTED IN THE NATION'S HISTORY." 
RICE V. OLSON, 324 U.S. 786, 789 (1945).  THIS POLICY WAS FIRST
ARTICULATED BY THIS COURT 141 YEARS AGO WHEN MR. CHIEF JUSTICE MARSHALL
HELD THAT INDIAN NATIONS WERE "DISTINCT POLITICAL COMMUNITIES, HAVING
TERRITORIAL BOUNDARIES, WITHIN WHICH THEIR AUTHORITY IS EXCLUSIVE, AND
HAVING A RIGHT TO ALL THE LANDS WITHIN THOSE BOUNDARIES, WHICH IS NOT
ONLY ACKNOWLEDGED, BUT GUARANTIED BY THE UNITED STATES."  WORCESTER V.
GEORGIA, 6 PET. 515, 557 (1832).  IT FOLLOWED FROM THIS CONCEPT OF
INDIAN RESERVATIONS AS SEPARATE, ALTHOUGH DEPENDENT NATIONS, THAT STATE
LAW COULD HAVE NO ROLE TO PLAY WITHIN THE RESERVATION BOUNDARIES.  "THE
CHEROKEE NATION . . . IS A DISTINCT COMMUNITY, OCCUPYING ITS OWN
TERRITORY, WITH BOUNDARIES ACCURATELY DESCRIBED, IN WHICH THE LAWS OF
GEORGIA CAN HAVE NO FORCE, AND WHICH THE CITIZENS OF GEORGIA HAVE NO
RIGHT TO ENTER, BUT WITH THE ASSENT OF THE CHEROKEES THEMSELVES, OR IN
CONFORMITY WITH TREATIES, AND WITH THE ACTS OF CONGRESS. 

[[HC169'(ORIGINAL DOCUMENT PAGE 169)'  THE WHOLE INTERCOURSE BETWEEN
THE UNITED STATES AND THIS NATION, IS, BY OUR CONSTITUTION AND LAWS,
VESTED IN THE GOVERNMENT OF THE UNITED STATES."  WORCESTER V. GEORGIA,
SUPRA, AT 561.  SEE ALSO UNITED STATES V. KAGAMA, 118 U.S. 375 (1886);
EX PARTE CROW DOG, 109 U.S. 556 (1883). 

ALTHOUGH WORCESTER ON ITS FACTS DEALT WITH A STATE'S EFFORTS TO
EXTEND ITS CRIMINAL JURISDICTION TO RESERVATION LANDS, /4/  THE
RATIONALE OF THE CASE PLAINLY EXTENDED TO STATE TAXATION WITHIN THE
RESERVATION AS WELL.  THUS, IN THE KANSAS INDIANS, 5 WALL.  737 (1867),
THE COURT UNAMBIGUOUSLY REJECTED STATE EFFORTS TO IMPOSE A LAND TAX ON
RESERVATION INDIANS.  "IF THE TRIBAL ORGANIZATION OF THE SHAWNEES IS
PRESERVED INTACT, AND RECOGNIZED BY THE POLITICAL DEPARTMENT OF THE
GOVERNMENT AS EXISTING, THEN THEY ARE A 'PEOPLE DISTINCT FROM OTHERS,'
CAPABLE OF MAKING TREATIES, SEPARATED FROM THE JURISDICTION OF KANSAS,
AND TO BE GOVERNED EXCLUSIVELY BY THE GOVERNMENT OF THE UNION.  IF
UNDER THE CONTROL OF CONGRESS, FROM NECESSITY THERE CAN BE NO DIVIDED
AUTHORITY."  5 WALL., AT 755.  SEE ALSO THE NEW YORK INDIANS, 5 WALL. 
761 (1867). 

IT IS TRUE, AS THE STATE ASSERTS, THAT SOME OF THE LATER INDIAN TAX
CASES TURN, NOT ON THE INDIAN SOVEREIGNTY DOCTRINE, BUT ON WHETHER OR
NOT THE STATE CAN BE SAID TO HAVE IMPOSED A FORBIDDEN TAX ON A FEDERAL
INSTRUMENTALITY.  SEE, E. G., LEAHY V. STATE TREASURER OF OKLAHOMA, 297
U.S. 420 (1936); UNITED STATES V. RICKERT, 188 U.S. 432 (1903).  TO THE
EXTENT THAT THE TAX EXEMPTION RESTS ON FEDERAL IMMUNITY FROM STATE
TAXATION, IT MAY WELL BE INAPPLICABLE IN A CASE SUCH AS THIS INVOLVING
AN INDIVIDUAL INCOME TAX.  /5/ 

[[HC170'(ORIGINAL DOCUMENT PAGE 170)'  BUT IT WOULD VASTLY
OVERSIMPLIFY THE PROBLEM TO SAY THAT NOTHING REMAINS OF THE NOTION THAT
RESERVATION INDIANS ARE A SEPARATE PEOPLE TO WHOM STATE JURISDICTION,
AND THEREFORE STATE TAX LEGISLATION, MAY NOT EXTEND.  THUS, ONLY A FEW
YEARS AGO, THIS COURT STRUCK DOWN ARIZONA'S ATTEMPT TO TAX THE PROCEEDS
OF A TRADING COMPANY DOING BUSINESS WITHIN THE CONFINES OF THE VERY
RESERVATION INVOLVED IN THIS CASE.  SEE WARREN TRADING POST CO. V
ARIZONA TAX COMM'N, 380 U.S. 685 (1965).  THE TAX IN NO WAY INTERFERED
WITH FEDERAL LAND OR WITH THE NATIONAL GOVERNMENT'S PROPRIETARY
INTERESTS.  BUT IT WAS INVALIDATED NONETHELESS BECAUSE "FROM THE VERY
FIRST DAYS OF OUR GOVERNMENT, THE FEDERAL GOVERNMENT HAD BEEN
PERMITTING THE INDIANS LARGELY TO GOVERN THEMSELVES, FREE FROM STATE
INTERFERENCE."  ID., AT 686 - 687.  /6/  AS A LEADING TEXT ON INDIAN
PROBLEMS SUMMARIZES THE RELEVANT LAW:  "STATE LAWS GENERALLY ARE NOT
APPLICABLE TO TRIBAL INDIANS ON AN INDIAN RESERVATION EXCEPT WHERE
CONGRESS HAS EXPRESSLY PROVIDED THAT STATE LAWS SHALL APPLY. 

[[HC171'(ORIGINAL DOCUMENT PAGE 171)'  IT FOLLOWS THAT INDIANS AND
INDIAN PROPERTY ON AN INDIAN RESERVATION ARE NOT SUBJECT TO STATE
TAXATION EXCEPT BY VIRTUE OF EXPRESS AUTHORITY CONFERRED UPON THE STATE
BY ACT OF CONGRESS."  U.S. DEPT. OF THE INTERIOR, FEDERAL INDIAN LAW
845 (1958) (HEREAFTER FEDERAL INDIAN LAW). 

THIS IS NOT TO SAY THAT THE INDIAN SOVEREIGNTY DOCTRINE, WITH ITS
CONCOMITANT JURISDICTIONAL LIMIT ON THE REACH OF STATE LAW, HAS
REMAINED STATIC DURING THE 141 YEARS SINCE WORCESTER WAS DECIDED.  NOT
SURPRISINGLY, THE DOCTRINE HAS UNDERGONE CONSIDERABLE EVOLUTION IN
RESPONSE TO CHANGED CIRCUMSTANCES.  AS NOTED ABOVE, THE DOCTRINE HAS
NOT BEEN RIGIDLY APPLIED IN CASES WHERE INDIANS HAVE LEFT THE
RESERVATION AND BECOME ASSIMILATED INTO THE GENERAL COMMUNITY.  SEE, E.
G., OKLAHOMA TAX COMM'N V. UNITED STATES, 319 U.S. 598 (1943). 
SIMILARLY, NOTIONS OF INDIAN SOVEREIGNTY HAVE BEEN ADJUSTED TO TAKE
ACCOUNT OF THE STATE'S LEGITIMATE INTERESTS IN REGULATING THE AFFAIRS
OF NON-INDIANS.  SEE, E. G., NEW YORK EX REL. RAY V. MARTIN, 326 U.S.
496 (1946); DRAPER V. UNITED STATES, 164 U.S. 240 (1896); UTAH &
NORTHERN R. CO. V. FISHER, 116 U.S. 28 (1885).  THIS LINE OF CASES WAS
SUMMARIZED IN THIS COURT'S LANDMARK DECISION IN WILLIAMS V. LEE, 358
U.S. 217 (1959):  "OVER THE YEARS THIS COURT HAS MODIFIED (THE
WORCESTER PRINCIPLE) IN CASES WHERE ESSENTIAL TRIBAL RELATIONS WERE NOT
INVOLVED AND WHERE THE RIGHTS OF INDIANS WOULD NOT BE JEOPARDIZED . . .
. THUS, SUITS BY INDIANS AGAINST OUTSIDERS IN STATE COURTS HAVE BEEN
SANCTIONED . . . . AND STATE COURTS HAVE BEEN ALLOWED TO TRY NON
INDIANS WHO COMMITTED CRIMES AGAINST EACH OTHER ON A RESERVATION . . .
. BUT IF THE CRIME WAS BY OR AGAINST AN INDIAN, TRIBAL JURISDICTION OR
THAT EXPRESSLY CONFERRED ON OTHER COURTS BY CONGRESS HAS REMAINED
EXCLUSIVE . . . . ESSENTIALLY, ABSENT GOVERNING ACTS OF CONGRESS, THE
QUESTION HAS ALWAYS BEEN WHETHER THE STATE ACTION INFRINGED ON THE
RIGHT OF RESERVATION INDIANS TO MAKE THEIR OWN LAWS AND BE RULED BY
THEM." 

[[HC172'(ORIGINAL DOCUMENT PAGE 172)'  ID., AT 219 - 220 (FOOTNOTE
OMITTED). 

FINALLY, THE TREND HAS BEEN AWAY FROM THE IDEA OF INHERENT INDIAN
SOVEREIGNTY AS A BAR TO STATE JURISDICTION AND TOWARD RELIANCE ON
FEDERAL PRE-EMPTION.  /7/  SEE MESCALERO APACHE TRIBE V. JONES, ANTE,
P. 145.  THE MODERN CASES THUS TEND TO AVOID RELIANCE ON PLATONIC
NOTIONS OF INDIAN SOVEREIGNTY AND TO LOOK INSTEAD TO THE APPLICABLE
TREATIES AND STATUTES WHICH DEFINE THE LIMITS OF STATE POWER.  COMPARE,
E. G., UNITE STATES V. KAGAMA, 118 U.S. 375 (1886), WITH KENNERLY V.
DISTRICT COURT, 400 U.S. 423 (1971).  /8/ 

THE INDIAN SOVEREIGNTY DOCTRINE IS RELEVANT, THEN, NOT BECAUSE IT
PROVIDES A DEFINITIVE RESOLUTION OF THE ISSUES IN THIS SUIT, BUT
BECAUSE IT PROVIDES A BACKDROP AGAINST WHICH THE APPLICABLE TREATIES
AND FEDERAL STATUTES MUST BE READ.  IT MUST ALWAYS BE REMEMBERED THAT
THE VARIOUS INDIAN TRIBES WERE ONCE INDEPENDENT AND SOVEREIGN NATIONS,
AND THAT THEIR CLAIM TO SOVEREIGNTY LONG PREDATES THAT OF OUR OWN
GOVERNMENT.  INDIANS TODAY ARE AMERICAN CITIZENS.  /9/ 

[[HC173'(ORIGINAL DOCUMENT PAGE 173)'  THEY HAVE THE RIGHT TO VOTE,
/10/  TO USE STATE COURTS, /11/  AND THEY RECEIVE SOME STATE SERVICES. 
/12/  BUT IT IS NONETHELESS STILL TRUE, AS IT WAS IN THE LAST CENTURY,
THAT "(THE RELATION OF THE INDIAN TRIBES LIVING WITHIN THE BORDERS OF
THE UNITED STATES . . . (IS) AN ANOMALOUS ONE AND OF A COMPLEX
CHARACTER . . . . THEY WERE, AND ALWAYS HAVE BEEN, REGARDED AS HAVING A
SEMI-INDEPENDENT POSITION WHEN THEY PRESERVED THEIR TRIBAL RELATIONS;
NOT AS STATES, NOT AS NATIONS, NOT AS POSSESSED OF THE FULL ATTRIBUTES
OF SOVEREIGNTY, BUT AS A SEPARATE PEOPLE, WITH THE POWER OF REGULATING
THEIR INTERNAL AND SOCIAL RELATIONS, AND THUS FAR NOT BROUGHT UNDER THE
LAWS OF THE UNION OR OF THE STATE WITHIN WHOSE LIMITS THEY RESIDED." 
UNITED STATES V. KAGAMA, 118 U.S., AT 381 - 382.              III 

WHEN THE RELEVANT TREATY AND STATUTES ARE READ WITH THIS TRADITION
OF SOVEREIGNTY IN MIND, WE THINK IT CLEAR THAT ARIZONA HAS EXCEEDED ITS
LAWFUL AUTHORITY BY ATTEMPTING TO TAX APPELLANT.  THE BEGINNING OF OUR
ANALYSIS MUST BE WITH THE TREATY WHICH THE UNITED STATES GOVERNMENT
ENTERED WITH THE NAVAJO NATION IN 1868.     [[HC174'(ORIGINAL DOCUMENT
PAGE 174)'  THE AGREEMENT PROVIDED, IN RELEVANT PART, THAT A PRESCRIBED
RESERVATION WOULD BE SET ASIDE "FOR THE USE AND OCCUPATION OF THE
NAVAJO TRIBE OF INDIANS" AND THAT "NO PERSONS EXCEPT THOSE HEREIN SO
AUTHORIZED TO DO, AND EXCEPT SUCH OFFICERS, SOLDIERS, AGENTS, AND
EMPLOYES OF THE GOVERNMENT, OR OF THE INDIANS, AS MAY BE AUTHORIZED TO
ENTER UPON INDIAN RESERVATIONS IN DISCHARGE OF DUTIES IMPOSED BY LAW,
OR THE ORDERS OF THE PRESIDENT, SHALL EVER BE PERMITTED TO PASS OVER,
SETTLE UPON, OR RESIDE IN, THE TERRITORY DESCRIBED IN THIS ARTICLE." 
15 STAT. 667, 668. 

THE TREATY NOWHERE EXPLICITLY STATES THAT THE NAVAJOS WERE TO BE
FREE FROM STATE LAW OR EXEMPT FROM STATE TAXES.  BUT THE DOCUMENT IS
NOT TO BE READ AS AN ORDINARY CONTRACT AGREED UPON BY PARTIES DEALING
AT ARM'S LENGTH WITH EQUAL BARGAINING POSITIONS.  WE HAVE HAD OCCASION
IN THE PAST TO DESCRIBE THE CIRCUMSTANCES UNDER WHICH THE AGREEMENT WAS
REACHED.  "AT THE TIME THIS DOCUMENT WAS SIGNED THE NAVAJOS WERE AN
EXILED PEOPLE, FORCED BY THE UNITED STATES TO LIVE CROWDED TOGETHER ON
A SMALL PIECE OF LAND ON THE PECOS RIVER IN EASTERN NEW MEXICO, SOME
300 MILES EAST OF THE AREA THEY HAD OCCUPIED BEFORE THE COMING OF THE
WHITE MAN.  IN RETURN FOR THEIR PROMISES TO KEEP PEACE, THIS TREATY
'SET APART' FOR 'THEIR PERMANENT HOME' A PORTION OF WHAT HAD BEEN THEIR
NATIVE COUNTRY."  WILLIAMS V. LEE, 358 U.S., AT 221. 

IT IS CIRCUMSTANCES SUCH AS THESE WHICH HAVE LED THIS COURT IN
INTERPRETING INDIAN TREATIES, TO ADOPT THE GENERAL RULE THAT "(DOUBTFUL
EXPRESSIONS ARE TO BE RESOLVED IN FAVOR OF THE WEAK AND DEFENSELESS
PEOPLE WHO ARE THE WARDS OF THE NATION, DEPENDENT UPON ITS PROTECTION
AND GOOD FAITH."  CARPENTER V. SHAW, 280 U.S. 363, 367 (1930).  WHEN
THIS CANON OF CONSTRUCTION IS TAKEN TOGETHER WITH THE TRADITION OF
INDIAN INDEPENDENCE DESCRIBED ABOVE, IT CANNOT BE DOUBTED THAT THE
RESERVATION OF CERTAIN LANDS FOR THE EXCLUSIVE USE AND OCCUPANCY OF THE
NAVAJOS AND THE EXCLUSION OF NON-NAVAJOS FROM THE PRESCRIBED AREA WAS
MEANT TO ESTABLISH THE LANDS AS WITHIN THE EXCLUSIVE SOVEREIGNTY OF THE
NAVAJOS UNDER GENERAL FEDERAL SUPERVISION. 

[[HC175'(ORIGINAL DOCUMENT PAGE 175)'  IT IS THUS UNSURPRISING THAT
THIS COURT HAS INTERPRETED THE NAVAJO TREATY TO PRECLUDE EXTENSION OF
STATE LAW--INCLUDING STATE TAX LAW--TO INDIANS ON THE NAVAJO
RESERVATION.  SEE WARREN TRADING POST CO. V. ARIZONA TAX COMM'N, 380
U.S., AT 687, 690; WILLIAMS V. LEE, SUPRA, AT 221 - 222. 

MOREOVER, SINCE THE SIGNING OF THE NAVAJO TREATY, CONGRESS HAS
CONSISTENTLY ACTED UPON THE ASSUMPTION THAT THE STATES LACKED
JURISDICTION OVER NAVAJOS LIVING ON THE RESERVATION.  /13/ THUS, WHEN
ARIZONA ENTERED THE UNION, ITS ENTRY WAS EXPRESSLY CONDITIONED ON THE
PROMISE THAT THE STATE WOULD "FOREVER DISCLAIM ALL RIGHT AND TITLE TO .
. . ALL LANDS LYING WITHIN SAID BOUNDARIES OWNED OR HELD BY ANY INDIAN
OR INDIAN TRIBES, THE RIGHT OR TITLE TO WHICH SHALL HAVE BEEN ACQUIRED
THROUGH OR FROM THE UNITED STATES OR ANY PRIOR SOVEREIGNTY, AND THAT
UNTIL THE TITLE OF SUCH INDIAN OR INDIAN TRIBES SHALL HAVE BEEN
EXTINGUISHED THE SAME SHALL BE AND REMAIN SUBJECT TO THE DISPOSITION
AND UNDER THE ABSOLUTE JURISDICTION AND CONTROL OF THE CONGRESS OF THE
UNITED STATES."  ARIZONA ENABLING ACT, 36 STAT. 557, 569.  /14/ 

NOR IS THE ARIZONA ENABLING ACT SILENT ON THE SPECIFIC QUESTION OF
TAX IMMUNITY.  THE ACT EXPRESSLY PROVIDES THAT "NOTHING HEREIN, OR IN
THE ORDINANCE HEREIN PROVIDED FOR, SHALL PRECLUDE THE SAID STATE FROM
TAXING AS OTHER LANDS AND OTHER PROPERTY ARE TAXED ANY LANDS AND OTHER
PROPERTY OUTSIDE OF AN INDIAN RESERVATION OWNED OR HELD BY ANY
INDIAN." 

ID., AT 570.  IT IS TRUE, OF COURSE, THAT EXEMPTIONS FROM TAX LAWS
SHOULD, AS A GENERAL RULE, BE CLEARLY EXPRESSED.  BUT WE HAVE IN THE
PAST CONSTRUED LANGUAGE FAR MORE AMBIGUOUS THAN THIS AS PROVIDING A TAX
EXEMPTION FOR INDIANS.  SEE, E. G., SQUIRE V. CAPOEMAN, 351 U.S. 1, 6
(1956), AND WE SEE NO REASON TO GIVE THIS LANGUAGE AN ESPECIALLY
CRABBED OR RESTRICTIVE MEANING.  /15/ 

INDEED, CONGRESS' INTENT TO MAINTAIN THE TAX EXEMPT STATUS OF
RESERVATION INDIANS IS ESPECIALLY CLEAR IN LIGHT OF THE BUCK ACT, 4
U.S.C. ^ 104 ET SEQ., WHICH PROVIDES COMPREHENSIVE FEDERAL GUIDANCE FOR
STATE TAXATION OF THOSE LIVING WITHIN FEDERAL AREAS.  SECTION 106 (A)
OF TITLE 4 U.S.C. GRANTS TO THE STATES GENERAL AUTHORITY TO IMPOSE AN
INCOME TAX ON RESIDENTS OF FEDERAL AREAS, BUT ^ 109 EXPRESSLY PROVIDES
THAT "(NOTHING IN SECTIONS 105 AND 106 OF THIS TITLE SHALL BE DEEMED TO
AUTHORIZE THE LEVY OR COLLECTION OF ANY TAX ON OR FROM ANY INDIAN NOT
OTHERWISE TAXED."  TO BE SURE, THE LANGUAGE OF THE STATUTE ITSELF DOES
NOT MAKE CLEAR WHETHER THE REFERENCE TO "ANY INDIAN NOT OTHERWISE
TAXED" WAS INTENDED TO APPLY TO RESERVATION INDIANS EARNING THEIR
INCOME ON THE RESERVATION.  BUT THE LEGISLATIVE HISTORY MAKES PLAIN
THAT THIS PROVISO WAS MEANT TO EXCEPT RESERVATION INDIANS FROM COVERAGE
OF THE BUCK ACT, SEE S. REP. NO. 1625, 76TH CONG., 3D SESS., 2, 4
(1940); 84 CONG. REC. 10685, AND THIS COURT HAS SO INTERPRETED IT. 

[[HC177'(ORIGINAL DOCUMENT PAGE 177)'  SEE WARREN TRADING POST CO.
V. ARIZONA TAX COMM'N, 380 U.S., AT 691 N. 18.  WHILE THE BUCK ACT
ITSELF CANNOT BE READ AS AN AFFIRMATIVE GRANT OF TAX-EXEMPT STATUS TO
RESERVATION INDIANS, IT SHOULD BE OBVIOUS THAT CONGRESS WOULD NOT HAVE
JEALOUSLY PROTECTED THE IMMUNITY OF RESERVATION INDIANS FROM STATE
INCOME TAXES HAD IT THOUGHT THAT THE STATES HAD RESIDUAL POWER TO
IMPOSE SUCH TAXES IN ANY EVENT.  SIMILARLY, NARROWER STATUTES
AUTHORIZING STATES TO ASSERT TAX JURISDICTION OVER RESERVATIONS IN
SPECIAL SITUATIONS ARE EXPLICABLE ONLY IF CONGRESS ASSUMED THAT THE
STATES LACKED THE POWER TO IMPOSE THE TAXES WITHOUT SPECIAL
AUTHORIZATION.  /16/ 

FINALLY, IT SHOULD BE NOTED THAT CONGRESS HAS NOW PROVIDED A METHOD
WHEREBY STATES MAY ASSUME JURISDICTION OVER RESERVATION INDIANS.  TITLE
25 U.S.C. ^ 1322 (A) GRANTS THE CONSENT OF THE UNITED STATES TO STATES
WISHING TO ASSUME CRIMINAL AND CIVIL JURISDICTION OVER RESERVATION
INDIANS, AND 25 U.S.C. ^ 1324 CONFERS UPON THE STATES THE RIGHT TO
DISREGARD ENABLING ACTS WHICH LIMIT THEIR AUTHORITY OVER SUCH INDIANS. 
BUT THE ACT EXPRESSLY PROVIDES THAT THE STATE MUST ACT "WITH THE
CONSENT OF THE TRIBE OCCUPYING THE PARTICULAR INDIAN COUNTRY, "25
U.S.C. 1322 (A)  /17/  AND MUST "APPROPRIATELY (AMEND ITS) CONSTITUTION
OR STATUTES." 

[[HC178'(ORIGINAL DOCUMENT PAGE 178)'  25 U.S.C. ^ 1324.  ONCE
AGAIN, THE ACT CANNOT BE READ AS EXPRESSLY CONFERRING TAX IMMUNITY UPON
INDIANS.  BUT WE CANNOT BELIEVE THAT CONGRESS WOULD HAVE REQUIRED THE
CONSENT OF THE INDIANS AFFECTED AND THE AMENDMENT OF THOSE STATE
CONSTITUTIONS WHICH PROHIBIT THE ASSUMPTION OF JURISDICTION IF THE
STATES WERE FREE TO ACCOMPLISH THE SAME GOAL UNILATERALLY BY SIMPLE
LEGISLATIVE ENACTMENT.  SEE KENNERLY V. DISTRICT COURT, 400 U.S. 423
(1971).  /18/ 

ARIZONA, OF COURSE, HAS NEITHER AMENDED ITS CONSTITUTION TO PERMIT
TAXATION OF THE NAVAJOS NOR SECURED THE CONSENT OF THE INDIANS
AFFECTED.  INDEED, A STARTLING ASPECT OF THIS CASE IS THAT APPELLEE
APPARENTLY CONCEDES THAT, IN THE ABSENCE OF COMPLIANCE WITH 25 U.S.C. ^
1322 (A), THE ARIZONA COURTS CAN EXERCISE NEITHER CIVIL NOR CRIMINAL
JURISDICTION OVER RESERVATION INDIANS.  SEE BRIEF FOR APPELLEE 24 -
26.  /19/  BUT THE APPELLEE NOWHERE EXPLAINS HOW, WITHOUT SUCH
JURISDICTION, THE STATE'S TAX MAY EITHER BE IMPOSED OR COLLECTED.  CF.
TR. OF ORAL ARG. 38 - 39.  UNLESS THE STATE IS WILLING TO DEFEND THE
POSITION THAT IT MAY CONSTITUTIONALLY ADMINISTER ITS TAX SYSTEM
ALTOGETHER WITHOUT JUDICIAL INTERVENTION, CF. WARD V. BOARD OF COUNTY
COMM'RS, 253 U.S. 17 (1920), THE ADMITTED ABSENCE OF EITHER CIVIL OR
CRIMINAL JURISDICTION WOULD SEEM TO DISPOSE OF THE CASE. 

[[HC179'(ORIGINAL DOCUMENT PAGE 179)'

        IV 

WHEN ARIZONA'S CONTENTIONS ARE MEASURED AGAINST THESE STATUTORY
IMPERATIVES, THEY ARE SIMPLY UNTENABLE.  THE STATE RELIES PRIMARILY
UPON LANGUAGE IN WILLIAMS V. LEE STATING THAT THE TEST FOR DETERMINING
THE VALIDITY OF STATE ACTION IS "WHETHER (IT) INFRINGED ON THE RIGHT OF
RESERVATION INDIANS TO MAKE THEIR OWN LAWS AND BE RULED BY THEM"  358
U.S., AT 220.  SINCE ARIZONA HAS ATTEMPTED TO TAX INDIVIDUAL INDIANS
AND NOT THE TRIBE OR RESERVATION AS SUCH, IT ARGUES THAT IT HAS NOT
INFRINGED ON INDIAN RIGHT OF SELF-GOVERNMENT. 

IN FACT, WE ARE FAR FROM CONVINCED THAT WHEN A STATE IMPOSES TAXES
UPON RESERVATION MEMBERS WITHOUT THEIR CONSENT, ITS ACTION CAN BE
RECONCILED WITH TRIBAL SELF-DETERMINATION.  BUT EVEN IF THE STATE'S
PREMISE WERE ACCEPTED, WE REJECT THE SUGGESTION THAT THE WILLIAMS TEST
WAS MEANT TO APPLY IN THIS SITUATION.  IT MUST BE REMEMBERED THAT CASES
APPLYING THE WILLIAMS TEST HAVE DEALT PRINCIPALLY WITH SITUATIONS
INVOLVING NON-INDIANS.  SEE ALSO ORGANIZED VILLAGE OF KAKE V. EGAN, 369
U.S., AT 75 - 76.  IN THESE SITUATIONS, BOTH THE TRIBE AND THE STATE
COULD FAIRLY CLAIM AN INTEREST IN ASSERTING THEIR RESPECTIVE
JURISDICTIONS.  THE WILLIAMS TEST WAS DESIGNED TO RESOLVE THIS CONFLICT
BY PROVIDING THAT THE STATE COULD PROTECT ITS INTEREST UP TO THE POINT
WHERE TRIBAL SELF-GOVERNMENT WOULD BE AFFECTED. 

THE PROBLEM POSED BY THIS CASE IS COMPLETELY DIFFERENT.  SINCE
APPELLANT IS AN INDIAN AND SINCE HER INCOME IS DERIVED WHOLLY FROM
RESERVATION SOURCES, HER ACTIVITY IS TOTALLY WITHIN THE SPHERE WHICH
THE RELEVANT TREATY AND STATUTES LEAVE FOR THE FEDERAL GOVERNMENT AND
FOR THE INDIANS THEMSELVES. 

[[HC180'(ORIGINAL DOCUMENT PAGE 180)'  APPELLEE CITES US TO NO CASES
HOLDING THAT THIS LEGISLATION MAY BE IGNORED SIMPLY BECAUSE TRIBAL SELF
GOVERNMENT HAS NOT BEEN INFRINGED.  /20/  ON THE CONTRARY, THIS COURT
EXPRESSLY REJECTED SUCH A POSITION ONLY TWO YEARS AGO.  /21/  IN
KENNERLY V. DISTRICT COURT, 400 U.S. 423 (1971), THE BLACKFOOT INDIAN
TRIBE HAD VOTED TO MAKE STATE JURISDICTION CONCURRENT WITHIN THE
RESERVATION.  ALTHOUGH THE STATE HAD NOT COMPLIED WITH THE PROCEDURAL
PREREQUISITES FOR THE ASSUMPTION OF JURISDICTION, IT ARGUED THAT IT WAS
NONETHELESS ENTITLED TO EXTEND ITS LAWS TO THE RESERVATION SINCE SUCH
ACTION WAS OBVIOUSLY CONSISTENT WITH THE WISHES OF THE TRIBE AND,
THEREFORE, WITH TRIBAL SELF-GOVERNMENT.  BUT WE HELD THAT THE WILLIAMS
RULE WAS INAPPLICABLE AND THAT "(THE UNILATERAL ACTION OF THE TRIBAL
COUNCIL WAS INSUFFICIENT TO VEST MONTANA WITH JURISDICTION."  ID., AT
427.  IF MONTANA MAY NOT ASSUME JURISDICTION OVER THE BLACKFEET BY
SIMPLE LEGISLATION EVEN WHEN THE TRIBE ITSELF AGREES TO BE BOUND BY
STATE LAW, IT SURELY FOLLOWS THAT ARIZONA MAY NOT ASSUME SUCH
JURISDICTION IN THE ABSENCE OF TRIBAL AGREEMENT. 

NOR IS THE STATE'S ATTEMPTED DISTINCTION BETWEEN TAXES ON LAND AND
ON INCOME AVAILING.  INDEED, IT IS SOMEWHAT SURPRISING THAT THE STATE
ADHERES TO THIS DISTINCTION IN LIGHT OF OUR DECISION IN WARREN TRADING
POST CO. V ARIZONA TAX COMM'N, SUPRA, WHEREIN WE INVALIDATED AN INCOME
TAX WHICH ARIZONA HAD ATTEMPTED TO IMPOSE WITHIN THE NAVAJO
RESERVATION. 

[[HC181'(ORIGINAL DOCUMENT PAGE 181)'  HOWEVER RELEVANT THE LAND
INCOME DISTINCTION MAY BE IN OTHER CONTEXTS, IT IS PLAINLY IRRELEVANT
WHEN, AS HERE, THE TAX IS RESISTED BECAUSE THE STATE IS TOTALLY LACKING
IN JURISDICTION OVER BOTH THE PEOPLE AND THE LANDS IT SEEKS TO TAX.  IN
SUCH A SITUATION, THE STATE HAS NO MORE JURISDICTION TO REACH INCOME
GENERATED ON RESERVATION LANDS THAN TO TAX THE LAND ITSELF. 

FINALLY, WE CANNOT ACCEPT THE NOTION THAT IT IS IRRELEVANT "WHETHER
THE . . . STATE INCOME TAX INFRINGES ON (APPELLANT'S) RIGHTS AS AN
INDIVIDUAL NAVAJO INDIAN," AS THE STATE COURT OF APPEALS MAINTAINED. 
14 ARIZ., AT 454, 484 P.2D, AT 223.  TO BE SURE, WHEN CONGRESS HAS
LEGISLATED ON INDIAN MATTERS, IT HAS, MOST OFTEN, DEALT WITH THE TRIBES
AS COLLECTIVE ENTITIES.  BUT THOSE ENTITIES ARE, AFTER ALL, COMPOSED OF
INDIVIDUAL INDIANS, AND THE LEGISLATION CONFERS INDIVIDUAL RIGHTS. 
THIS COURT HAS THEREFORE HELD THAT "THE QUESTION HAS ALWAYS BEEN
WHETHER THE STATE ACTION INFRINGED ON THE RIGHT OF RESERVATION INDIANS
TO MAKE THEIR OWN LAWS AND BE RULED BY THEM."  WILLIAMS V. LEE, SUPRA,
AT 220 (EMPHASIS ADDED).  IN THIS CASE, APPELLANT'S RIGHTS AS A
RESERVATION INDIAN WERE VIOLATED WHEN THE STATE COLLECTED A TAX FROM
HER WHICH IT HAD NO JURISDICTION TO IMPOSE.  ACCORDINGLY, THE JUDGMENT
OF THE COURT BELOW MUST BE

              REVERSED. 

/1/  SEE, E. G., OKLAHOMA TAX COMM'N V. UNITED STATES, 319 U.S. 598
(1943); CHILDERS V. BEAVER, 270 U.S. 555 (1926); UNITED STATES V.
RICKERT, 188 U.S. 432 (1903); THE KANSAS INDIANS, 5 WALL.  737 (1867). 
CF. SQUIRE V. CAPOEMAN, 351 U.S. 1 (1956). 

/2/  STATE COURTS HAVE DISAGREED ON THE QUESTION.  COMPARE GHAHATE
V. BUREAU OF REVENUE, 80 N.M. 98, 451 P.2D 1002 (1969), WITH
COMMISSIONER OF TAXATION V. BRUN, 286 MINN. 43, 174 N.W. 2D 120
(1970).  SEE POWLESS V. STATE TAX COMM'N, 22 APP. DIV. 2D 746, 253
N.Y.S. 2D 438 (1964); STATE TAX COMM'N V. BARNES, 14 MISC. 2D 311, 178
N.Y.S. 2D 932 (1958). 

/3/  THE LIABILITY WAS CREATED BY ARIZ. REV. STAT. ANN. ^ 43 - 102
(A) (SUPP. 1972 - 1973) WHICH, IN RELEVANT PART, PROVIDES:  "THERE
SHALL BE LEVIED, COLLECTED, AND PAID FOR EACH TAXABLE YEAR UPON THE
ENTIRE NET INCOME OF EVERY ESTATE OR TRUST TAXABLE UNDER THIS TITLE AND
OF EVERY RESIDENT OF THIS STATE AND UPON THE ENTIRE NET INCOME OF EVERY
NONRESIDENT WHICH IS DERIVED FROM SOURCES WITHIN THIS STATE, TAXES IN
THE FOLLOWING AMOUNTS AND AT THE FOLLOWING RATES UPON THE AMOUNT OF NET
INCOME IN EXCESS OF CREDITS AGAINST NET INCOME PROVIDED IN ^^ 43 - 127
AND 43 - 128."  APPELLANT CONCEDED BELOW THAT SHE WAS A "RESIDENT"
WITHIN THE MEANING OF THE STATUTE, AND THAT QUESTION, WHICH IN ANY
EVENT POSES AN ISSUE OF STATE LAW, IS NOT NOW BEFORE US.     /4/  SEE
ALSO WILLIAMS V. UNITED STATES, 327 U.S. 711 (1946); UNITED STATES V.
CHAVEZ, 290 U.S. 357 (1933); UNITED STATES V. RAMSEY, 271 U.S. 467
(1926).     /5/  THE FEDERAL-INSTRUMENTALITY DOCTRINE DOES NOT PROHIBIT
STATE TAXATION OF INDIVIDUALS DERIVING THEIR INCOME FROM FEDERAL
SOURCES.  SEE GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466 (1939). 
CF. LEAHY V. STATE TREASURE OF OKLAHOMA, 297 U.S. 420 (1936).  THE
DOCTRINE HAS, IN ANY EVENT, BEEN SHARPLY LIMITED WITH RESPECT TO
INDIANS.  SEE OKLAHOMA TAX COMM'N V. UNITED STATES, 319 U.S. 598
(1942). 

/6/  THE COURT BELOW DISTINGUISHED WARREN TRADING POST AS LIMITED TO
CASES WHERE THE FEDERAL GOVERNMENT HAS PRE-EMPTED STATE LAW BY
REGULATING INDIAN TRADERS IN A MANNER INCONSISTENT WITH STATE
TAXATION.  SEE 14 ARIZ. APP. 452, 455, 484 P.2D 221, 224.  BUT ALTHOUGH
THE COURT WAS, NO DOUBT, INFLUENCED BY THE FEDERAL LICENSING
REQUIREMENTS, THE REASONING OF WARREN TRADING POST CANNOT BE SO
RESTRICTED.  THE COURT INVALIDATED ARIZONA'S TAX IN PART BECAUSE
"CONGRESS HAS, SINCE THE CREATION OF THE NAVAJO RESERVATION NEARLY A
CENTURY AGO, LEFT THE INDIANS ON IT LARGELY FREE TO RUN THE RESERVATION
AND ITS AFFAIRS WITHOUT STATE CONTROL, A POLICY WHICH HAS AUTOMATICALLY
RELIEVED ARIZONA OF ALL BURDENS FOR CARRYING ON THOSE SAME
RESPONSIBILITIES."  WARREN TRADING POST CO. V. ARIZONA TAX COMM'N, 380
U.S. 685, 690 (1965). 

/7/  THE SOURCE OF FEDERAL AUTHORITY OVER INDIAN MATTERS HAS BEEN
THE SUBJECT OF SOME CONFUSION, BUT IT IS NOW GENERALLY RECOGNIZED THAT
THE POWER DERIVES FROM FEDERAL RESPONSIBILITY FOR REGULATING COMMERCE
WITH INDIAN TRIBES AND FOR TREATY MAKING.  SEE U.S. CONST. ART. I, ^ 8,
CL. 3; ART. II, ^ 2, CL. 2.  SEE ALSO WILLIAMS V. LEE, 358 U.S. 217,
219 N. 4 (1959); PERRIN V. UNITED STATES, 232 U.S. 478, 482 (1914);
FEDERAL INDIAN LAW 3. 

/8/  THE EXTENT OF FEDERAL PRE-EMPTION AND RESIDUAL INDIAN
SOVEREIGNTY IN THE TOTAL ABSENCE OF FEDERAL TREATY OBLIGATIONS OR
LEGISLATION IS THEREFORE NOW SOMETHING OF A MOOT QUESTION.  CF.
ORGANIZED VILLAGE OF KAKE V. EGAN, 369 U.S. 60, 62 (1962); FEDERAL
INDIAN LAW 846.  THE QUESTION IS GENERALLY OF LITTLE MORE THAN
THEORETICAL IMPORTANCE, HOWEVER, SINCE IN ALMOST ALL CASES FEDERAL
TREATIES AND STATUTES DEFINE THE BOUNDARIES OF FEDERAL AND STATE
JURISDICTION. 

/9/  SEE 8 U.S.C. ^ 1401 (A)(2). 

/10/  SEE, E. G., HARRISON V. LAVEEN, 67 ARIZ. 337, 196 P.2D 456
(1948). 

/11/  SEE, E. G., FELIX V. PATRICK, 145 U.S. 317, 332 (1892). 

/12/  THE COURT BELOW POINTED OUT THAT ARIZONA WAS EXPENDING TAX
MONIES FOR EDUCATION AND WELFARE WITHIN THE CONFINES OF THE NAVAJO
RESERVATION.  SEE 14 ARIZ. APP., AT 456 - 457, 484 P.2D, AT 225 - 226. 
IT SHOULD BE NOTED, HOWEVER, THAT THE FEDERAL GOVERNMENT DEFRAYS 80% OF
ARIZONA'S ORDINARY SOCIAL SECURITY PAYMENTS TO RESERVATION INDIANS, SEE
25 U.S.C. ^ 639, AND HAS AUTHORIZED THE EXPENDITURE OF MORE THAN $88
MILLION FOR REHABILITATION PROGRAMS FOR NAVAJOS AND HOPIS LIVING ON
RESERVATIONS.  SEE ALSO 25 U.S.C. ^^ 13, 309, 309A.  MOREOVER,
"(CONFERRING RIGHTS AND PRIVILEGES ON THESE INDIANS CANNOT AFFECT THEIR
SITUATION, WHICH CAN ONLY BE CHANGED BY TREATY STIPULATION, OR A
VOLUNTARY ABANDONMENT OF THEIR TRIBAL ORGANIZATION."  THE KANSAS
INDIANS, 5 WALL., AT 757. 

/13/  CONGRESS HAS . . . ACTED CONSISTENTLY UPON THE ASSUMPTION THAT
THE STATES HAVE NO POWER TO REGULATE THE AFFAIRS OF INDIANS ON A
RESERVATION . . . . SIGNIFICANTLY, WHEN CONGRESS HAS WISHED THE STATES
TO EXERCISE THIS POWER IT HAS EXPRESSLY GRANTED THEM THE JURISDICTION
WHICH WORCESTER V. GEORGIA HAS DENIED."  WILLIAMS V. LEE, 358 U.S., AT
220 - 221 (FOOTNOTE OMITTED). 

/14/  THIS LANGUAGE IS DUPLICATED IN ARIZONA'S OWN CONSTITUTION. 
SEE ARIZ. CONST., ART. 20, PARA. 4.  IT IS ALSO CONTAINED IN THE
ENABLING ACTS OF NEW MEXICO AND UTAH, THE OTHER STATES IN WHICH THE
NAVAJO RESERVATION IS LOCATED.  SEE NEW MEXICO ENABLING ACT, 36 STAT.
557, 559; UTAH ENABLING ACT, 28 STAT. 107, 108. 

/15/  THERE IS NOTHING IN ORGANIZED VILLAGE OF KAKE V. EGAN, 369
U.S. 60 (1962), TO THE CONTRARY.  IN EGAN, WE HELD THAT "'ABSOLUTE'
FEDERAL JURISDICTION IS NOT INVARIABLY EXCLUSIVE JURISDICTION," AND
THAT THIS LANGUAGE IN FEDERAL LEGISLATION DID NOT PRECLUDE THE EXERCISE
OF RESIDUAL STATE AUTHORITY.  SEE ID., AT 68.  BUT THAT HOLDING CAME IN
THE CONTEXT OF A DECISION CONCERNING THE FISHING RIGHTS OF NON
RESERVATION INDIANS.  SEE ID., AT 62.  IT DID NOT PURPORT TO PROVIDE
GUIDELINES FOR THE EXERCISE OF STATE AUTHORITY IN AREAS SET ASIDE BY
TREATY FOR THE EXCLUSIVE USE AND CONTROL OF INDIANS. 

/16/  SEE, E. G., 25 U.S.C. ^ 398 (CONGRESSIONAL AUTHORIZATION FOR
STATES TO TAX MINERAL PRODUCTION ON UNALLOTTED TRIBAL LANDS).  CF. 18
U.S.C. ^ 1161 (STATE LIQUOR LAWS MAY BE APPLICABLE WITHIN
RESERVATIONS); 25 U.S.C. ^ 231 (STATE HEALTH AND EDUCATION LAWS MAY BE
APPLICABLE WITHIN RESERVATION). 

/17/  AS PASSED IN 1953, PUB. L. 280, 67 STAT. 588, DELEGATED CIVIL
AND CRIMINAL JURISDICTION OVER INDIAN RESERVATIONS TO CERTAIN STATES,
ALTHOUGH NOT TO ARIZONA.  SEE 18 U.S.C. ^ 1162; 28 U.S.C. ^ 1360.  THE
ORIGINAL ACT ALSO PROVIDED A MEANS WHEREBY OTHER STATES COULD ASSUME
JURISDICTION OVER INDIAN RESERVATIONS WITHOUT THE CONSENT OF THE TRIBE
AFFECTED.  SEE 67 STAT. 590.  HOWEVER, IN 1968, CONGRESS PASSED THE
INDIAN CIVIL RIGHTS ACT WHICH CHANGED THE PRIOR PROCEDURE TO REQUIRE
THE CONSENT OF THE INDIANS INVOLVED BEFORE A STATE WAS PERMITTED TO
ASSUME JURISDICTION.  SEE 25 U.S.C. ^ 1322 (A).  THUS, HAD IT WISHED TO
DO SO, ARIZONA COULD HAVE UNILATERALLY ASSUMED JURISDICTION OVER ITS
PORTION OF THE NAVAJO RESERVATION AT ANY POINT DURING THE 15 YEARS
BETWEEN 1953 AND 1968.  BUT ALTHOUGH THE STATE DID PASS NARROW
LEGISLATION PURPORTING TO REQUIRE THE ENFORCEMENT OF AIR AND WATER
POLLUTION STANDARDS WITHIN RESERVATIONS, SEE ARIZ. REV. STAT. ANN. ^^
36 - 1801, 36 - 1865 (SUPP. 1972), IT DECLINED TO ASSUME FULL
RESPONSIBILITY FOR THE INDIANS DURING THE PERIOD WHEN IT HAD THE
OPPORTUNITY TO DO SO. 

/18/  WE DO NOT SUGGEST THAT ARIZONA WOULD NECESSARILY BE EMPOWERED
TO IMPOSE THIS TAX HAD IT FOLLOWED THE PROCEDURES OUTLINED IN 25 U.S.C.
^ 1322 ET SEQ. CF. 25 U.S.C. ^ 1322 (B).  THAT QUESTION IS NOT
PRESENTLY BEFORE US, AND WE EXPRESS NO VIEWS ON IT. 

/19/  IN LIGHT OF OUR PRIOR CASES, APPELLEE HAS NO CHOICE BUT TO
MAKE THIS CONCESSION.  SEE, E. G., KENNERLY V. DISTRICT COURT, 400 U.S.
423 (1971); STATES V. KAGAMA, 118 U.S. 375 (1886). 

/20/  ORGANIZED VILLAGE OF KAKE V. EGAN, 369 U.S. 60 (1962), IS NOT
SUCH A CASE.  SEE N. 15 SUPRA. 

/21/  INDEED, THE POSITION WAS EXPRESSLY REJECTED IN WILLIAMS,
ITSELF, UPON WHICH APPELLEE SO HEAVILY RELIES.  WILLIAMS HELD THAT
"ABSENT GOVERNING ACTS OF CONGRESS, THE QUESTION HAS ALWAYS BEEN
WHETHER THE STATE INFRINGED ON THE RIGHT OF RESERVATION INDIANS TO MAKE
THEIR OWN LAWS AND BE RULED BY THEM."  358 U.S., AT 220. 

RICHARD B. COLLINS ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE DONALD JUNEAU AND THEODORE R. MITCHELL. 

JAMES D. WINTER, ASSISTANT ATTORNEY GENERAL OF ARIZONA, ARGUED THE
CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WAS GARY K. NELSON, ATTORNEY
GENERAL. 

HARRY R. SACHSE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRIWSOLD, ASSISTANT ATTORNEY GENERAL FRIZZELL, DEPUTY SOLICITOR GENERAL
WALLACE, EDMUND B. CLARKE, AND CARL STRASS. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY CHARLES A.
HOBBS FOR THE NATIONAL CONGRESS OF AMERICAN INDIANS; BY DAVID H.
GETCHES FOR THE NATIVE AMERICAN RIGHTS FUND; AND BY SAMUEL W. MURPHY,
JR., AND WILLIAM C. PELSTER FOR MONTANA INTER-TRIBAL POLICY BOARD. 

WILLIAM D. DEXTER, ASSISTANT ATTORNEY GENERAL OF WASHINGTON, AND
EUGENE F. CORRIGAN FILED A BRIEF FOR MULTISTATE TAX COMMISSION AS
AMICUS CURIAE URGING AFFIRMANCE. 

MR. HOBBS, PIERRE J. LAFORCE, AND R. DON MAHAN FILED A BRIEF FOR THE
ESTATE OF ROSE MASON AS AMICUS CURIAE. 
..END :










CAMP, COMPTROLLER OF THE CURRENCY V. PITTS ET AL., 411 U.S. 138 


       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FOURTH CIRCUIT

        NO. 72 - 864.  DECIDED MARCH 26, 1973; CERTIORARI GRANTED

           463 F.2D 632, VACATED AND REMANDED. 


    THE APPROPRIATE STANDARD FOR JUDICIAL REVIEW OF A DECISION BY

  THE COMPTROLLER OF THE CURRENCY DENYING A NATIONAL BANK CHARTER

  IS WHETHER HIS ADJUDICATION WAS "ARBITRARY, CAPRICIOUS, AN ABUSE

  OF DISCRETION OR OTHERWISE NOT IN ACCORDANCE WITH LAW."  THE

  DISTRICT COURT IS TO REVIEW THE ADMINISTRATIVE RECORD ALREADY IN

  EXISTENCE, SUPPLEMENTED IF NECESSARY BY AFFIDAVITS OR TESTIMONY

  AMPLIFYING THE REASON FOR THE COMPTROLLER'S DECISION, AND IS NOT

AUTHORIZED BY THE NATIONAL BANK ACT OR THE ADMINISTRATIVE

PROCEDURE ACT TO CONDUCT A DE NOVO HEARING AS TO WHICH THE

  "SUBSTANTIAL EVIDENCE" TEST IS TO BE APPLIED.  CF. CITIZENS TO

  PRESERVE OVERTON PARK V. VOLPE, 401 U.S. 402. 

PER CURIAM. 

IN ITS PRESENT POSTURE THIS CASE PRESENTS A NARROW, BUT SUBSTANTIAL,
QUESTION WITH RESPECT TO THE PROPER PROCEDURE TO BE FOLLOWED WHEN A
REVIEWING COURT DETERMINES THAT AN ADMINISTRATIVE AGENCY'S STATED
JUSTIFICATION FOR INFORMAL ACTION DOES NOT PROVIDE AN ADEQUATE BASIS
FOR JUDICIAL REVIEW. 

IN 1967, RESPONDENTS SUBMITTED AN APPLICATION TO THE COMPTROLLER OF
THE CURRENCY FOR A CERTIFICATE AUTHORIZING THEM TO ORGANIZE A NEW BANK
IN HARTSVILLE, SOUTH CAROLINA.  SEE 12 U.S.C. ^ 27; 12 CFR ^ 4.2
(1972).  ON THE BASIS OF INFORMATION RECEIVED FROM A NATIONAL BANK
EXAMINER AND FROM VARIOUS INTERESTED PARTIES, THE COMPTROLLER DENIED
THE APPLICATION AND NOTIFIED RESPONDENTS OF HIS DECISION THROUGH A
BRIEF LETTER, WHICH STATED IN PART:  "(WE HAVE CONCLUDED THAT THE
FACTORS IN SUPPORT OF THE ESTABLISHMENT OF A NEW NATIONAL BANK IN THIS
AREA ARE NOT FAVORABLE." 

[[HC139'(ORIGINAL DOCUMENT PAGE 139)'  NO FORMAL HEARINGS WERE
REQUIRED BY THE CONTROLLING STATUTE OR GUARANTEED BY THE APPLICABLE
REGULATIONS, ALTHOUGH THE LATTER PROVIDED FOR HEARINGS WHEN REQUESTED
AND WHEN GRANTED AT THE DISCRETION OF THE COMPTROLLER.  /1/
RESPONDENTS DID NOT REQUEST A FORMAL HEARING BUT ASKED FOR
RECONSIDERATION.  THAT REQUEST WAS GRANTED AND A SUPPLEMENTAL FILED
EXAMINATION WAS CONDUCTED, WHEREUPON THE COMPTROLLER AGAIN DENIED THE
APPLICATION, THIS TIME STATING IN A LETTER THAT "WE WERE UNABLE TO
REACH A FAVORABLE CONCLUSION AS TO THE NEED FACTOR,"  AND EXPLAINING
THAT CONCLUSION TO SOME EXTENT.  /2/  RESPONDENTS THEN BROUGHT AN
ACTION IN FEDERAL DISTRICT COURT SEEKING REVIEW OF THE COMPTROLLER'S
DECISION.  THE ENTIRE ADMINISTRATIVE RECORD WAS PLACED BEFORE THE
COURT, AND, UPON AN EXAMINATION OF THAT RECORD AND OF THE TWO LETTERS
OF EXPLANATION, THE COURT GRANTED SUMMARY JUDGMENT AGAINST RESPONDENTS,
HOLDING THAT DE NOVO REVIEW WAS NOT WARRANTED IN THE CIRCUMSTANCES AND
FINDING THAT "ALTHOUGH THE COMPTROLLER MAY HAVE ERRED, THERE IS
SUBSTANTIAL BASIS FOR HIS DETERMINATION, AND . . . IT WAS NEITHER
CAPRICIOUS NOR ARBITRARY."  329 F.SUPP.  1302, 1308.  ON APPEAL, THE
COURT OF APPEALS DID NOT REACH THE MERITS.  RATHER, IT HELD THAT THE
COMPTROLLER'S RULING WAS "UNACCEPTABLE" BECAUSE "ITS BASIS" WAS NOT
STATED WITH SUFFICIENT CLARITY TO PERMIT JUDICIAL REVIEW. 

[[HC140'(ORIGINAL DOCUMENT PAGE 140)'  463 F.2D 632, 633.  FOR THE
PRESENT, THE COMPTROLLER DOES NOT CHALLENGE THIS ASPECT OF THE COURT'S
DECISION.  HE DOES, HOWEVER, SEEK REVIEW HERE OF THE PROCEDURES THAT
THE COURT OF APPEALS SPECIFICALLY ORDERED TO BE FOLLOWED IN THE
DISTRICT COURT ON REMAND.  THE COURT HELD THAT THE CASE SHOULD BE
REMANDED "FOR A TRIAL DE NOVO BEFORE THE DISTRICT COURT" BECAUSE "THE
COMPTROLLER HAS TWICE INADEQUATELY AND INARTICULATELY RESOLVED THE
(RESPONDENTS') PRESENTATION."  THE COURT FURTHER SPECIFIED THAT IN THE
DISTRICT COURT, RESPONDENTS "WILL OPEN THE TRIAL WITH PROOF OF THEIR
APPLICATION AND COMPLIANCE WITH THE STATUTORY INQUIRIES, AND PROFFER OF
ANY OTHER RELEVANT EVIDENCE."  THEN, "(TESTIMONY MAY . . . BE ADDUCED
BY THE COMPTROLLER OR INTERVENORS MANIFESTING OPPOSITION, IF ANY, TO
THE NEW BANK."  ON THE BASIS OF THE RECORD THUS MADE, THE DISTRICT
COURT WAS INSTRUCTED TO MAKE ITS OWN FINDINGS OF FACT AND CONCLUSIONS
OF LAW IN ORDER TO DETERMINE "WHETHER THE (RESPONDENTS) HAVE SHOWN BY A
PREPONDERANCE OF EVIDENCE THAT THE COMPTROLLER'S RULING IS CAPRICIOUS
OR AN ABUSE OF DISCRETION."  463 F.2D, AT 634. 

WE AGREE WITH THE COMPTROLLER THAT THE TRIAL PROCEDURES THUS
OUTLINED BY THE COURT OF APPEALS FOR THE REMAND IN THIS CASE ARE
UNWARRANTED UNDER PRESENT LAW. 

UNQUESTIONABLY, THE COMPTROLLER'S ACTION IS SUBJECT TO JUDICIAL
REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT (APA), 5 U.S.C. ^ 701. 
SEE ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS V. CAMP, 397
U.S. 150, 156 - 158 (1970).  BUT IT IS ALSO CLEAR THAT NEITHER THE
NATIONAL BANK ACT NOR THE APA REQUIRES THE COMPTROLLER TO HOLD A
HEARING OR TO MAKE FORMAL FINDINGS ON THE HEARING RECORD WHEN PASSING
ON APPLICATIONS FOR NEW BANKING AUTHORITIES. 

[[HC141'(ORIGINAL DOCUMENT PAGE 141)'  SEE 12 U.S.C. ^ 26; 5 U.S.C.
^ 557.  /3/  ACCORDINGLY, THE PROPER STANDARD FOR JUDICIAL REVIEW OF
THE COMPTROLLER'S ADJUDICATIONS IS NOT THE "SUBSTANTIAL EVIDENCE" TEST
WHICH IS APPROPRIATE WHEN REVIEWING FINDINGS MADE ON A HEARING RECORD,
5 U.S.C. ^ 706 (2) (E).  NOR WAS THE REVIEWING COURT FREE TO HOLD A DE
NOVO HEARING UNDER ^ 706 (2)(F) AND THEREAFTER DETERMINE WHETHER THE
AGENCY ACTION WAS "UNWARRANTED BY THE FACTS."  IT IS QUITE PLAIN FROM
OUR DECISION IN CITIZENS TO PRESERVE OVERTON PARK V. VOLPE, 401 U.S.
402 (1971), THAT DE NOVO REVIEW IS APPROPRIATE ONLY WHERE THERE ARE
INADEQUATE FACTFINDING PROCEDURES IN AN ADJUDICATORY PROCEEDING, OR
WHERE JUDICIAL PROCEEDINGS ARE BROUGHT TO ENFORCE CERTAIN
ADMINISTRATIVE ACTIONS. 

[[HC142'(ORIGINAL DOCUMENT PAGE 142)'  ID., AT 415.  NEITHER
SITUATION APPLIES HERE.  THE PROCEEDING IN THE DISTRICT COURT WAS
OBVIOUSLY NOT BROUGHT TO ENFORCE THE COMPTROLLER'S DECISION, AND THE
ONLY DEFICIENCY SUGGESTED IN AGENCY ACTION OR PROCEEDINGS IS THAT THE
COMPTROLLER INADEQUATELY EXPLAINED HIS DECISION.  AS OVERTON PARK
DEMONSTRATES, HOWEVER, THAT FAILURE, IF IT OCCURRED IN THIS CASE, IS
NOT A DEFICIENCY IN FACTFINDING PROCEDURES SUCH AS TO WARRANT THE DE
NOVO HEARING ORDERED IN THIS CASE. 

THE APPROPRIATE STANDARD FOR REVIEW WAS ACCORDINGLY WHETHER THE
COMPTROLLER'S ADJUDICATION WAS "ARBITRARY, CAPRICIOUS, AN ABUSE OF
DISCRETION, OR OTHERWISE NOT IN ACCORDANCE WITH LAW."  AS SPECIFIED IN
5 U.S.C. ^ 706 (2)(A).  IN APPLYING THAT STANDARD, THE FOCAL POINT FOR
JUDICIAL REVIEW SHOULD BE THE ADMINISTRATIVE RECORD ALREADY IN
EXISTENCE, NOT SOME NEW RECORD MADE INITIALLY IN THE REVIEWING COURT. 
RESPONDENTS CONTEND THAT THE COURT OF APPEALS DID NOT ENVISION A TRUE
DE NOVO REVIEW AND THAT, AT MOST, ALL THAT WAS CALLED FOR WAS THE TYPE
OF "PLENARY REVIEW" CONTEMPLATED BY OVERTON PARK, 401 U.S., AT 420.  WE
CANNOT AGREE.  THE PRESENT REMAND INSTRUCTIONS REQUIRE THE COMPTROLLER
AND OTHER PARTIES TO MAKE AN EVIDENTIARY RECORD BEFORE THE DISTRICT
COURT "MANIFESTING OPPOSITION, IF ANY, TO THE NEW BANK."  THE
RESPONDENTS WERE ALSO TO BE AFFORDED OPPORTUNITIES TO SUPPORT THEIR
APPLICATION WITH "ANY OTHER RELEVANT EVIDENCE."  THESE INSTRUCTIONS
SEEM TO PUT ASIDE THE EXTENSIVE ADMINISTRATIVE RECORD ALREADY MADE AND
PRESENTED TO THE REVIEWING COURT. 

IF, AS THE COURT OF APPEALS HELD AND AS THE COMPTROLLER DOES NOT NOW
CONTEST, THERE WAS SUCH FAILURE TO EXPLAIN ADMINISTRATIVE ACTION AS TO
FRUSTRATE EFFECTIVE JUDICIAL REVIEW, THE REMEDY WAS NOT TO HOLD A DE
NOVO HEARING BUT, AS CONTEMPLATED BY OVERTON PARK, TO OBTAIN FROM THE
AGENCY, EITHER THROUGH AFFIDAVITS OR TESTIMONY, SUCH ADDITIONAL
EXPLANATION OF THE REASONS FOR THE AGENCY DECISION AS MAY PROVE
NECESSARY. 

[[HC143'(ORIGINAL DOCUMENT PAGE 143)'  WE ADD A CAVEAT, HOWEVER. 
UNLIKE OVERTON PARK, IN THE PRESENT CASE THERE WAS CONTEMPORANEOUS
EXPLANATION OF THE AGENCY DECISION.  THE EXPLANATION MAY HAVE BEEN
CURT, BUT IT SURELY INDICATED THE DETERMINATIVE REASON FOR THE FINAL
ACTION TAKEN:  THE FINDING THAT A NEW BANK WAS AN UNECONOMIC VENTURE IN
LIGHT OF THE BANKING NEEDS AND THE BANKING SERVICES ALREADY AVAILABLE
IN THE SURROUNDING COMMUNITY.  THE VALIDITY OF THE COMPTROLLER'S ACTION
MUST, THEREFORE, STAND OR FALL ON THE PROPRIETY OF THAT FINDING,
JUDGED, OF COURSE, BY THE APPROPRIATE STANDARD OF REVIEW.  IF THAT
FINDING IS NOT SUSTAINABLE ON THE ADMINISTRATIVE RECORD MADE, THEN THE
COMPTROLLER'S DECISION MUST BE VACATED AND THE MATTER REMANDED TO HIM
FOR FURTHER CONSIDERATION.  SEE SEC V. CHENERY CORP., 318 U.S. 80
(1943).  IT IS IN THIS CONTEXT THAT THE COURT OF APPEALS SHOULD
DETERMINE WHETHER AND TO WHAT EXTENT, IN THE LIGHT OF THE
ADMINISTRATIVE RECORD, FURTHER EXPLANATION IS NECESSARY TO A PROPER
ASSESSMENT OF THE AGENCY'S DECISION. 

THE PETITION FOR CERTIORARI IS GRANTED, THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED, AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SEE 12 CFR ^ 4.12(D) (1967).  THE REGULATIONS WERE AMENDED IN
1971, 36 FED. REG. 5051.  FOR THE PRESENT REGULATION, SEE 12 CFR ^ 5.4
(1972). 

/2/  THE LETTER READS IN PART: 

"ON EACH APPLICATION WE ENDEAVOR TO DEVELOP THE NEED AND CONVENIENCE
FACTORS IN CONJUNCTION WITH ALL OTHER BANKING FACTORS AND IN THIS CASE
WE WERE UNABLE TO REACH A FAVORABLE CONCLUSION AS TO THE NEED FACTOR. 
THE RECORD REFLECTS THAT THIS MARKET AREA IS NOW SERVED BY THE PEOPLES
BANK WITH DEPOSITS OF $7.2MM, THE BANK OF HARTSVILLE WITH DEPOSITS OF
$12.8MM, THE FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION WITH DEPOSITS
OF $5.4MM, THE MUTUAL SAVINGS AND LOAN ASSOCIATION WITH DEPOSITS OF
$8.2MM AND THE SONOCO EMPLOYEES CREDIT UNION WITH DEPOSITS OF $6.5MM. 
THE AFOREMENTIONED ARE AS OF DECEMBER 31, 1968." 

/3/  TITLE 12 U.S.C. ^ 26 CONTEMPLATES A WIDE-RANGING EX PARTE
INVESTIGATION; IT READS AS FOLLOWS: 

"COMPTROLLER TO DETERMINE IF ASSOCIATION CAN COMMENCE BUSINESS. 

"WHENEVER A CERTIFICATE IS TRANSMITTED TO THE COMPTROLLER OF THE
CURRENCY, AS PROVIDED IN THIS CHAPTER, AND THE ASSOCIATION TRANSMITTING
THE SAME NOTIFIES THE COMPTROLLER THAT ALL OF ITS CAPITAL STOCK HAS
BEEN DULY PAID IN, AND THAT SUCH ASSOCIATION HAS COMPLIED WITH ALL THE
PROVISIONS OF THIS CHAPTER REQUIRED TO BE COMPLIED WITH BEFORE AN
ASSOCIATION SHALL BE AUTHORIZED TO COMMENCE THE BUSINESS OF BANKING,
THE COMPTROLLER SHALL EXAMINE INTO THE CONDITION OF SUCH ASSOCIATION,
ASCERTAIN ESPECIALLY THE AMOUNT OF MONEY PAID IN ON ACCOUNT OF ITS
CAPITAL, THE NAME AND PLACE OF RESIDENCE OF EACH OF ITS DIRECTORS, AND
THE AMOUNT OF THE CAPITAL STOCK OF WHICH EACH IS THE OWNER IN GOOD
FAITH, AND GENERALLY WHETHER SUCH ASSOCIATION HAS COMPLIED WITH ALL THE
PROVISIONS OF THIS CHAPTER REQUIRED TO ENTITLE IT TO ENGAGE IN THE
BUSINESS OF BANKING; AND SHALL CAUSE TO BE MADE AND ATTESTED BY THE
OATHS OF A MAJORITY OF THE DIRECTORS, AND BY THE PRESIDENT OR CASHIER
OF THE ASSOCIATION, A STATEMENT OF ALL THE FACTS NECESSARY TO ENABLE
THE COMPTROLLER TO DETERMINE WHETHER THE ASSOCIATION IS LAWFULLY
ENTITLED TO COMMENCE THE BUSINESS OF BANKING."  (EMPHASIS ADDED.) 

AS TO THE APA, ITS REQUIREMENT OF A WRITTEN STATEMENT OF "FINDINGS
AND CONCLUSIONS, AND THE REASONS OR BASIS THEREFOR" (5 U.S.C. ^ 557
(C)(3)(A)), APPLIES ONLY TO RULEMAKING PROCEEDINGS (^ 553) AND TO
ADJUDICATIONS "REQUIRED BY STATUTE TO BE DETERMINED ON THE RECORD AFTER
OPPORTUNITY FOR AN AGENCY HEARING," ^ 554 (A).  BY ITS TERMS, THEN, THE
APA'S REQUIREMENT OF FORMAL FINDINGS IS NOT RELEVANT SINCE THE NATIONAL
BANK ACT PLAINLY DOES NOT REQUIRE AGENCY HEARINGS ON APPLICATIONS FOR
NEW BANKS. 
..END :







OHIO MUNICIPAL JUDGES ASSN. ET AL. V. DAVIS ET AL., 411 U.S. 144 


       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF OHIO 

     NO. 72 - 1010.  DECIDED MARCH 26, 1973; AFFIRMED. 


    APPELLANTS' CHALLENGE TO STATE CONSTITUTIONAL PROVISION, WHICH

  DISTRICT COURT DISMISSED FOR INABILITY TO GRANT RELIEF SOUGHT,

  HELD TO BE WITHOUT MERIT. 

PER CURIAM. 

THE MOTION OF AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC., FOR
LEAVE TO FILE A BRIEF, AS AMICUS CURIAE, IS GRANTED. 

ON THE GROUND THAT IT WAS BEYOND ITS AUTHORITY TO GRANT THE PRIMARY
RELIEF SOUGHT, THE UNITED STATES DISTRICT COURT DISMISSED APPELLANTS'
SUIT WHICH ALLEGED THAT ART. IV, ^ 6 (B), OF THE OHIO CONSTITUTION
DENIED EQUAL PROTECTION OF THE LAWS UNDER THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION.  THE JUDGMENT IS AFFIRMED, BUT ON THE
GROUND THAT APPELLANTS' CONSTITUTIONAL CHALLENGE TO ART. IV, ^ 6 (B),
WAS WITHOUT MERIT. 

              SO ORDERED. 
..END :






















ROSARIO V. ROCKEFELLER, 410 U.S. 752 


       ROSARIO ET AL. V. ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 71-1371.  ARGUED DECEMBER 13, 1972-- DECIDED MARCH 21,

      1973 


PETITIONERS CHALLENGE THE CONSTITUTIONALITY OF NEW YORK ELECTION LAW
SEC. 186, WHICH REQUIRES A VOTER TO ENROLL IN THE PARTY OF HIS CHOICE
AT LEAST 30 DAYS BEFORE THE GENERAL ELECTION IN ORDER TO VOTE IN THE
NEXT PARTY PRIMARY.  THOUGH ELIGIBLE TO ENROLL BEFORE THE PREVIOUS
GENERAL ELECTION, PETITIONERS FAILED TO DO SO AND WERE THEREFORE
INELIGIBLE TO VOTE IN THE 1972 PRIMARY.  THE COURT OF APPEALS,
REVERSING THE DISTRICT COURT, UPHELD THE NEW YORK SCHEME, WHICH IT
FOUND TO BE A PERMISSIBLE DETERRENT AGAINST THE PRACTICE OF PRIMARY
ELECTION "RAIDING" BY OPPOSING PARTY MEMBERS.  HELD:  NEW YORK'S
DELAYED-ENROLLMENT SCHEME DID NOT VIOLATE PETITIONERS' CONSTITUTIONAL
RIGHTS.  PP. 756-762. 

(A) SECTION 186 DID NOT ABSOLUTELY PROHIBIT PETITIONERS FROM VOTING
IN THE 1972 PRIMARY, BUT MERELY IMPOSED A TIME DEADLINE ON THEIR
ENROLLMENT, WHICH THEY CHOSE TO DISREGARD.  PP. 756-758. 

(B) THE STATUTE DOES NOT DEPRIVE VOTERS OF THEIR RIGHT UNDER THE
FIRST AND FOURTEENTH AMENDMENTS TO ASSOCIATE WITH THE PARTY OF THEIR
CHOICE OF SUBSEQUENTLY TO CHANGE TO ANOTHER PARTY, PROVIDED THAT THE
STATUTORY TIME LIMIT FOR DOING SO IS OBSERVED.  PP. 758-759. 

(C) THE CUTOFF DATE FOR ENROLLMENT, WHICH OCCURS ABOUT EIGHT MONTHS
BEFORE A PRESIDENTIAL, AND 11 MONTHS BEFORE A NONPRESIDENTIAL, PRIMARY,
IS NOT ARBITRARY WHEN VIEWED IN LIGHT OF THE LEGITIMATE STATE PURPOSE
OF AVOIDING DISRUPTIVE PARTY RAIDING.  PP. 760-761. 

458 F.2D 649, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  POWELL, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND MARSHALL,
JJ., JOINED, POST, P. 763. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

FOR MORE THAN 60 YEARS, NEW YORK HAS HAD A CLOSED SYSTEM OF PRIMARY
ELECTIONS, WHEREBY ONLY ENROLLED MEMBERS OF A POLITICAL PARTY MAY VOTE
IN THAT PARTY'S PRIMARY.  /1/  UNDER THE STATE'S ELECTION LAW, A
REGISTERED VOTER ENROLLS AS A PARTY MEMBER BY DEPOSITING AN ENROLLMENT
BLANK IN A LOCKED ENROLLMENT BOX.  THE LAST DAY FOR ENROLLMENT IS 30
DAYS BEFORE THE GENERAL ELECTION EACH YEAR.  SECTION 186 OF THE
ELECTION LAW PROVIDES THAT THE ENROLLMENT BOXES SHALL NOT BE OPENED
UNTIL THE TUESDAY FOLLOWING THE GENERAL ELECTION, AND PARTY
AFFILIATIONS ARE THEN ENTERED ON THE STATE'S OFFICIAL REGISTRATION
BOOKS.  THE VOTER IS THEN DULY ENROLLED AS A MEMBER OF HIS PARTY AND
MAY VOTE IN A SUBSEQUENT PRIMARY ELECTION.  /2/ 

THE EFFECT OF SEC. 186 IS TO REQUIRE A VOTER TO ENROLL IN THE PARTY
OF HIS CHOICE AT LEAST 30 DAYS BEFORE THE GENERAL ELECTION IN NOVEMBER
IN ORDER TO VOTE IN THE NEXT SUBSEQUENT PARTY PRIMARY.  IF A VOTER
FAILS TO MEET THIS DEADLINE, HE CANNOT PARTICIPATE IN A PARTY PRIMARY
UNTIL AFTER THE FOLLOWING GENERAL ELECTION.  SECTION 187 PROVIDES AN
EXEMPTION FROM THIS WAITING PERIOD FOR CERTAIN CLASSES OF VOTERS,
INCLUDING PERSONS WHO HAVE ATTAINED VOTING AGE AFTER THE LAST GENERAL
ELECTION, PERSONS TOO ILL TO ENROLL DURING THE PREVIOUS ENROLLMENT
PERIOD, AND PERSONS WHO MOVED FROM ONE PLACE TO ANOTHER WITHIN A SINGLE
COUNTY.  UNDER SEC. 187, THESE CLASSES OF VOTERS MAY BE SPECIALLY
ENROLLED AS MEMBERS OF A PARTY EVEN AFTER THE GENERAL ELECTION HAS
TAKEN PLACE.  /3/ 

THE PETITIONERS ARE NEW YORK RESIDENTS WHO BECAME ELIGIBLE TO VOTE
WHEN THEY CAME OF AGE IN 1971.  ALTHOUGH THEY COULD HAVE REGISTERED AND
ENROLLED IN A POLITICAL PARTY BEFORE THE CUTOFF DATE IN 1971-- OCTOBER
2-- THEY FAILED TO DO SO.  /4/  INSTEAD, THEY WAITED UNTIL EARLY
DECEMBER 1971 TO REGISTER AND TO DEPOSIT THEIR ENROLLMENT BLANKS.  AT
THAT TIME, THEY COULD NOT BE SPECIALLY AND IMMEDIATELY ENROLLED IN A
PARTY UNDER SEC. 187, SINCE THEY HAD ATTAINED THE VOTING AGE BEFORE,
RATHER THAN AFTER, THE 1971 GENERAL ELECTION.  HENCE, PURSUANT TO SEC.
186, THEIR PARTY ENROLLMENT COULD NOT BECOME EFFECTIVE UNTIL AFTER THE
NOVEMBER 1972 GENERAL ELECTION.  BECAUSE OF NEW YORK'S ENROLLMENT
SCHEME, THEN, THE PETITIONERS WERE NOT ELIGIBLE TO VOTE IN THE
PRESIDENTIAL PRIMARY ELECTION HELD IN JUNE 1972. 

THE PETITIONERS FILED THESE COMPLAINTS FOR DECLARATORY RELIEF,
PURSUANT TO 42 U.S.C. 1983, ALLEGING THAT SEC. 186 UNCONSTITUTIONALLY
DEPRIVED THEM OF THEIR RIGHT TO VOTE IN THE JUNE PRIMARY AND ABRIDGED
THEIR FREEDOM TO ASSOCIATE WITH THE POLITICAL PARTY OF THEIR CHOICE. 
THE DISTRICT COURT, IN AN UNREPORTED OPINION, GRANTED THEM THE
DECLARATORY RELIEF SOUGHT.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
REVERSED, HOLDING SEC. 186 CONSTITUTIONAL.  458 F.2D 649.  WE GRANTED
CERTIORARI, BUT DENIED THE PETITIONERS' MOTION FOR SUMMARY REVERSAL,
EXPEDITED CONSIDERATION, AND A STAY.  406 U.S. 957(1972).  /5/ 

THE PETITIONERS ARGUE THAT, THROUGH SEC. 186, NEW YORK
DISENFRANCHISED THEM BY REFUSING TO PERMIT THEM TO VOTE IN THE JUNE
1972 PRIMARY ELECTION ON THE GROUND THAT THEY HAD NOT ENROLLED IN A
POLITICAL PARTY AT LEAST 30 DAYS PRIOR TO THE PRECEDING GENERAL
ELECTION.  MORE SPECIFICALLY, THEY CONTEND THAT SEC. 186 HAS OPERATED
TO PRECLUDE NEWLY REGISTERED VOTERS, SUCH AS THEMSELVES, FROM
PARTICIPATING IN THE PRIMARY ELECTION OF THE PARTY OF THEIR CHOICE. 
ACCORDING TO THE PETITIONERS, NEW YORK HAS NO "COMPELLING STATE
INTERESTS" IN ITS DELAYED-ENROLLMENT SCHEME SO AS TO JUSTIFY SUCH
DISENFRANCHISEMENT, AND HENCE THE SCHEME MUST FALL.  IN SUPPORT OF THIS
ARGUMENT, THE PETITIONERS RELY ON SEVERAL CASES IN WHICH THIS COURT HAS
STRUCK DOWN, AS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE, STATE
STATUTES THAT DISENFRANCHISED CERTAIN GROUPS OF PEOPLE.  CARRINGTON V.
RASH, 380 U.S. 89(1965); KRAMER V. UNION SCHOOL DISTRICT, 395 U.S.
621(1969); CIPRIANO V. CITY OF HOUMA, 395 U.S. 701(1969); EVANS V.
CORNMAN, 398 U.S. 419(1970); CITY OF PHOENIX V. KOLODZIEJSKI, 399 U.S.
204(1970); DUNN V. BLUMSTEIN, 405 U.S. 330(1972). 

WE CANNOT ACCEPT THE PETITIONERS' CONTENTION.  NONE OF THE CASES ON
WHICH THEY RELY IS APPOSITE TO THE SITUATION HERE.  IN EACH OF THOSE
CASES, THE STATE TOTALLY DENIED THE ELECTORAL FRANCHISE TO A PARTICULAR
CLASS OF RESIDENTS, AND THERE WAS NO WAY IN WHICH THE MEMBERS OF THAT
CLASS COULD HAVE MADE THEMSELVES ELIGIBLE TO VOTE.  IN CARRINGTON, FOR
INSTANCE, THE TEXAS CONSTITUTION DISABLED ALL SERVICEMEN FROM VOTING IN
TEXAS, NO MATTER HOW LONG THEY HAD LIVED THERE.  IN KRAMER, RESIDENTS
WHO WERE NOT PROPERTY OWNERS OR PARENTS WERE COMPLETELY PRECLUDED FROM
VOTING IN SCHOOL BOARD ELECTIONS.  IN CIPRIANO AND KOLODZIEJSKI, THE
STATES PROHIBITED NON-PROPERTY OWNERS FROM EVER VOTING IN BOND
ELECTIONS.  IN EVANS, MARYLAND REFUSED TO PERMIT RESIDENTS AT THE
NATIONAL INSTITUTES OF HEALTH, LOCATED WITHIN ITS BORDERS, EVER TO VOTE
IN STATE ELECTIONS.  AND IN DUNN, TENNESSEE TOTALLY DISENFRANCHISED
NEWLY ARRIVED RESIDENTS, I.E., THOSE WHO HAD BEEN RESIDENTS OF THE
STATE LESS THAN A YEAR OR RESIDENTS OF THE COUNTY LESS THAN THREE
MONTHS BEFORE THE ELECTION. 

DIFFERENT.  IT DID NOT ABSOLUTELY DISENFRANCHISE THE CLASS TO WHICH THE
PETITIONERS BELONG-- NEWLY REGISTERED VOTERS WHO WERE ELIGIBLE TO
ENROLL IN A PARTY BEFORE THE PREVIOUS GENERAL ELECTION.  RATHER, THE
STATUTE MERELY IMPOSED A TIME DEADLINE ON THEIR ENROLLMENT, WHICH THEY
HAD TO MEET IN ORDER TO PARTICIPATE IN THE NEXT PRIMARY.  SINCE THE
PETITIONERS ATTAINED VOTING AGE BEFORE THE OCTOBER 2, 1971, DEADLINE,
THEY CLEARLY COULD HAVE REGISTERED AND ENROLLED IN THE PARTY OF THEIR
CHOICE BEFORE THAT DATE AND BEEN ELIGIBLE TO VOTE IN THE JUNE 1972
PRIMARY.  /6/  INDEED, IF THE PETITIONERS HAD NOT BEEN ABLE TO ENROLL
BY THE OCTOBER 2, 1971, DEADLINE BECAUSE THEY DID NOT ATTAIN THE
REQUISITE AGE UNTIL AFTER THE 1971 GENERAL ELECTION, THEY WOULD HAVE
BEEN ELIGIBLE FOR SPECIAL ENROLLMENT UNDER SEC. 187.  THE PETITIONERS
DO NOT SAY WHY THEY DID NOT ENROLL PRIOR TO THE CUTOFF DATE; HOWEVER,
IT IS CLEAR THAT THEY COULD HAVE DONE SO, BUT CHOSE NOT TO.  HENCE, IF
THEIR PLIGHT CAN BE CHARACTERIZED AS DISENFRANCHISEMENT AT ALL, IT WAS
NOT CAUSED BY SEC. 186, BUT BY THEIR OWN FAILURE TO TAKE TIMELY STEPS
TO EFFECT THEIR ENROLLMENT.  /7/ 

FOR THE SAME REASON, WE REJECT THE PETITIONERS' ARGUMENT THAT SEC.
186 VIOLATED THEIR FIRST AND FOURTEENTH AMENDMENT RIGHT OF FREE
ASSOCIATION WITH THE POLITICAL PARTY OF THEIR CHOICE.  SINCE THEY COULD
HAVE ENROLLED IN A PARTY IN TIME TO PARTICIPATE IN THE JUNE 1972
PRIMARY, SEC. 186 DID NOT CONSTITUTE A BAN ON THEIR FREEDOM OF
ASSOCIATION, BUT MERELY A TIME LIMITATION ON WHEN THEY HAD TO ACT IN
ORDER TO PARTICIPATE IN THEIR CHOSEN PARTY'S NEXT PRIMARY.  /8/ 

INDEED, UNDER THE NEW YORK LAW, A PERSON MAY, IF HE WISHES, VOTE IN
A DIFFERENT PARTY PRIMARY EACH YEAR.  ALL HE NEED DO IS TO ENROLL IN A
NEW POLITICAL PARTY BETWEEN THE PRIOR PRIMARY AND THE OCTOBER CUTOFF
DATE.  FOR EXAMPLE, ONE JUNE HE COULD BE A REGISTERED REPUBLICAN AND
VOTE IN THE REPUBLICAN PRIMARY.  BEFORE ENROLLMENT CLOSED THE FOLLOWING
OCTOBER, HE COULD ENROLL IN THE DEMOCRATIC PARTY.  SINCE THAT
ENROLLMENT WOULD BE EFFECTIVE AFTER THE NOVEMBER GENERAL ELECTION AND
BEFORE THE FOLLOWING FEBRUARY 1, HE COULD THEN VOTE IN THE NEXT
DEMOCRATIC PRIMARY.  BEFORE THE FOLLOWING OCTOBER, HE COULD REGISTER TO
VOTE AS A LIBERAL, AND SO ON.  THUS, NEW YORK'S SCHEME DOES NOT "LOCK"
A VOTER INTO AN UNWANTED PRE-EXISTING PARTY AFFILIATION FROM ONE
PRIMARY TO THE NEXT.  /9/ 

THE ONLY REMAINING QUESTION, THEN, IS WHETHER THE TIME LIMITATION
IMPOSED BY SEC. 186 IS SO SEVERE AS ITSELF TO CONSTITUTE AN
UNCONSTITUTIONALLY ONEROUS BURDEN ON THE PETITIONERS' EXERCISE OF THE
FRANCHISE OR ON THEIR FREEDOM OF POLITICAL ASSOCIATION.  AS THE DISSENT
ACKNOWLEDGES, THE STATE IS CERTAINLY JUSTIFIED IN IMPOSING SOME
REASONABLE CUTOFF POINT FOR REGISTRATION OR PARTY ENROLLMENT, WHICH
CITIZENS MUST MEET IN ORDER TO PARTICIPATE IN THE NEXT ELECTION.  POST,
AT 765.  HENCE, OUR INQUIRY MUST BE WHETHER THE PARTICULAR DEADLINE
BEFORE US HERE IS SO JUSTIFIED. 

THE CUTOFF DATE FOR ENROLLMENT PRESCRIBED BY SEC. 186 OCCURS
APPROXIMATELY EIGHT MONTHS PRIOR TO A PRESIDENTIAL PRIMARY (HELD IN
JUNE) AND 11 MONTHS PRIOR TO A NON-PRESIDENTIAL PRIMARY (HELD IN
SEPTEMBER).  THE PETITIONERS ARGUE THAT THIS PERIOD IS UNREASONABLY
LONG, AND THAT IT THEREFORE UNDULY BURDENS THE EXERCISE OF THEIR
CONSTITUTIONAL RIGHTS.  ACCORDING TO THE PETITIONERS, SEC. 186 REQUIRES
PARTY ENROLLMENT BEFORE PROSPECTIVE VOTERS HAVE KNOWLEDGE OF THE
CANDIDATES OR ISSUES TO BE INVOLVED IN THE NEXT PRIMARY ELECTIONS.  THE
REQUIREMENT IS ESPECIALLY ONEROUS, THE PETITIONERS SAY, AS APPLIED TO
NEW VOTERS, WHO HAVE NEVER BEFORE REGISTERED TO VOTE OR ENROLLED IN A
POLITICAL PARTY. 

IT IS TRUE THAT THE PERIOD BETWEEN THE ENROLLMENT DEADLINE AND THE
NEXT PRIMARY ELECTION IS LENGTHY.  BUT THAT PERIOD IS NOT AN ARBITRARY
TIME LIMIT UNCONNECTED TO ANY IMPORTANT STATE GOAL.  THE PURPOSE OF NEW
YORK'S DELAYED-ENROLLMENT SCHEME, WE ARE TOLD, IS TO INHIBIT PARTY
"RAIDING," WHEREBY VOTERS IN SYMPATHY WITH ONE PARTY DESIGNATE
THEMSELVES AS VOTERS OF ANOTHER PARTY SO AS TO INFLUENCE OR DETERMINE
THE RESULTS OF THE OTHER PARTY'S PRIMARY.  THIS PURPOSE IS
ACCOMPLISHED, THE COURT OF APPEALS FOUND, NOT ONLY BY REQUIRING PARTY
ENROLLMENT SEVERAL MONTHS IN ADVANCE OF THE PRIMARY, ON THE THEORY THAT
"LONG-RANGE PLANNING IN POLITICS IS QUITE DIFFICULT," 458 F.2D, AT 653,
BUT ALSO BE REQUIRING ENROLLMENT PRIOR TO A GENERAL ELECTION.  THE
REASON FOR THE LATTER REQUIREMENT WAS WELL STATED BY THE COURT BELOW: 

"(THE NOTION OF RAIDING, ITS POTENTIAL DISRUPTIVE IMPACT, AND ITS
ADVANTAGES TO ONE SIDE ARE NOT LIKELY TO BE AS APPARENT TO THE MAJORITY
OF ENROLLED VOTERS NOR TO RECEIVE AS CLOSE ATTENTION FROM THE
PROFESSIONAL POLITICIAN JUST PRIOR TO A NOVEMBER GENERAL ELECTION WHEN
CONCERNS ARE ELSEWHERE AS WOULD BE TRUE DURING THE 'PRIMARY SEASON,'
WHICH, FOR THE COUNTRY AS A WHOLE, RUNS FROM EARLY FEBRUARY UNTIL THE
END OF JUNE.  FEW PERSONS HAVE THE EFFRONTERY OR THE FORESIGHT TO
ENROLL AS SAY, 'REPUBLICANS' SO THAT THEY CAN VOTE IN A PRIMARY SOME
SEVEN MONTHS HENCE, WHEN THEY FULL WELL INTEND TO VOTE 'DEMOCRATIC' IN
ONLY A FEW WEEKS.  AND, IT WOULD BE THE RARE POLITICIAN WHO COULD
SUCCESSFULLY URGE CONSTITUENTS TO VOTE FOR HIM OR HIS PARTY IN THE
UPCOMING GENERAL ELECTION, WHILE AT THE SAME TIME URGING A CROSS-OVER
ENROLLMENT FOR THE PURPOSE OF UPSETTING THE OPPOSITE PARTY'S PRIMARY. 
YET THE OPERATION OF SECTION 186 REQUIRES SUCH DELIBERATE
INCONSISTENCIES IF LARGE-SCALE RAIDING WERE TO BE EFFECTIVE IN NEW
YORK.  BECAUSE OF THE STATUTE, IT IS ALL BUT IMPOSSIBLE FOR ANY GROUP
TO ENGAGE IN RAIDING."  IBID. 

IT IS CLEAR THAT PRESERVATION OF THE INTEGRITY OF THE ELECTORAL
PROCESS IS A LEGITIMATE AND VALID STATE GOAL.  CF. DUNN V. BLUMSTEIN,
SUPRA, AT 345; BULLOCK V. CARTER, 405 U.S. 134, 145(1972).  IN THE
SERVICE OF THAT GOAL, NEW YORK HAS ADOPTED ITS DELAYED-ENROLLMENT
SCHEME; AND AN INTEGRAL PART OF THAT SCHEME IS THAT, IN ORDER TO
PARTICIPATE IN A PRIMARY ELECTION, A PERSON MUST ENROLL BEFORE THE
PRECEDING GENERAL ELECTION.  AS THE COURT OF APPEALS STATED:  "ALLOWING
ENROLLMENT ANY TIME AFTER THE GENERAL ELECTION WOULD NOT HAVE THE SAME
DETERRENT EFFECT ON RAIDING FOR IT WOULD NOT PUT THE VOTER IN THE
UNSEEMLY POSITION OF ASKING TO BE ENROLLED IN ONE PARTY WHILE AT THE
SAME TIME INTENDING TO VOTE IMMEDIATELY FOR ANOTHER."  458 F.2D, AT
653.  FOR THIS REASON, NEW YORK'S SCHEME REQUIRES AN INSULTING GENERAL
ELECTION BETWEEN ENROLLMENT AND THE NEXT PARTY PRIMARY.  THE RESULTING
TIME LIMITATION FOR ENROLLMENT IS THUS TIED TO A PARTICULARIZED
LEGITIMATE PURPOSE, AND IS IN NO SENSE INVIDIOUS OR ARBITRARY.  CF.
LIPPITT V. CIPOLLONE, 404 U.S. 1032(1972).  /10/ 

NEW YORK DID NOT PROHIBIT THE PETITIONERS FROM VOTING IN THE 1972
PRIMARY ELECTION OR FROM ASSOCIATING WITH THE POLITICAL PARTY OF THEIR
CHOICE.  IT MERELY IMPOSED A LEGITIMATE TIME LIMITATION ON THEIR
ENROLLMENT, WHICH THEY CHOSE TO DISREGARD. 

ACCORDINGLY, THE JUDGMENT BELOW IS

          AFFIRMED. 

/1/  SEE N.Y. ELECTION LAW SEC. 131.  THE STATE'S FIRST
COMPREHENSIVE PRIMARY LAW WAS ENACTED IN 1911. 

/2/  SECTION 186 PROVIDES, IN PERTINENT PART: 

"ALL ENROLLMENT BLANKS CONTAINED IN THE ENROLLMENT BOX SHALL REMAIN
IN SUCH BOX, AND THE BOX SHALL NOT BE OPENED NOR SHALL ANY OF THE
BLANKS BE REMOVED THEREFROM UNTIL THE TUESDAY FOLLOWING THE DAY OF
GENERAL ELECTION IN THAT YEAR.  SUCH BOX SHALL THEN BE OPENED BY THE
BOARD OF ELECTIONS AND THE BLANKS CONTAINED THEREIN SHALL BE REMOVED
THEREFROM BY THE BOARD, AND THE NAMES OF THE PARTY DESIGNATED BY EACH
VOTER UNDER SUCH DECLARATION, PROVIDED SUCH PARTY CONTINUES TO BE A
PARTY, AS DEFINED IN THIS LAW SHALL BE ENTERED BY THE BOARD, OPPOSITE
THE NAME OF SUCH VOTER IN THE APPROPRIATE COLUMN OF THE TWO COPIES OF
THE REGISTER CONTAINING ENROLLMENT NUMBERS FOR THE ELECTION DISTRICT IN
WHICH SUCH VOTER RESIDES.  . . . SUCH ENROLLMENT SHALL BE COMPLETE
BEFORE THE SUCCEEDING FIRST DAY OF FEBRUARY IN EACH YEAR."  THIS
/3/  SECTION 187 PROVIDES, IN PERTINENT PART: 

"APPLICATION FOR SPECIAL ENROLLMENT, TRANSFER OR CORRECTION OF
ENROLLMENT.  1.  AT ANY TIME AFTER JANUARY FIRST AND BEFORE THE
THIRTIETH DAY PRECEDING A SPRING PRIMARY, AND EXCEPT ON THE DAY OF A
PRIMARY, A VOTER MAY ENROLL WITH A PARTY, TRANSFER HIS ENROLLMENT AFTER
MOVING WITHIN A COUNTY, AND UNDER CERTAIN CIRCUMSTANCES, CORRECT HIS
ENROLLMENT, AS HEREINAFTER IN THIS SECTION PROVIDED. 

"2.  A VOTER MAY ENROLL WITH A PARTY IF HE DID NOT ENROLL ON THE DAY
OF THE ANNUAL ENROLLMENT (A) BECAUSE HE BECAME OF AGE AFTER THE
PRECEDING GENERAL ELECTION, OR (B) BECAUSE HE WAS NATURALIZED
SUBSEQUENT TO NINETY DAYS PRIOR TO THE PRECEDING GENERAL ELECTION, OR
(C) BECAUSE HE DID NOT HAVE THE NECESSARY RESIDENTIAL QUALIFICATIONS AS
PROVIDED BY SECTION ONE HUNDRED FIFTY, TO ENABLE HIM TO ENROLL IN THE
PRECEDING YEAR, OR (D) BECAUSE OF BEING OR HAVING BEEN AT ALL PREVIOUS
TIMES FOR ENROLLMENT A MEMBER OF THE ARMED FORCES OF THE UNITED STATES
AS DEFINED IN SECTION THREE HUNDRED THREE, OR (E) BECAUSE OF BEING THE
SPOUSE, CHILD OR PARENT OF SUCH MEMBER OF THE ARMED FORCES AND BEING
ABSENT FROM HIS OR HER COUNTY OF RESIDENCE AT ALL PREVIOUS TIMES FOR
ENROLLMENT BY REASON OF ACCOMPANYING OR BEING WITH SUCH MEMBER OF THE
ARMED FORCES, OR (F) BECAUSE HE WAS AN INMATE OR PATIENT OF A VETERANS'
BUREAU HOSPITAL LOCATED OUTSIDE THE STATE OF NEW YORK AT ALL PREVIOUS
TIMES FOR ENROLLMENT, OR THE SPOUSE, PARENT OR CHILD OF SUCH INMATE OR
PATIENT ACCOMPANYING OR BEING WITH SUCH INMATE OR PATIENT AT SUCH
TIMES, OR (G) BECAUSE HE WAS INCAPACITATED BY ILLNESS DURING THE
PREVIOUS ENROLLMENT PERIOD THEREBY PREVENTING HIM FROM ENROLLING." 

/4/  THE PETITIONERS THEMSELVES ADMIT THIS FAILURE.  THE PRESENT
CONSOLIDATED CASE ORIGINATED IN TWO COMPLAINTS, ONE BY THE PETITIONER
ROSARIO AND OTHER NAMED PLAINTIFFS, ON BEHALF OF A CLASS, AND ONE BY
THE PETITIONER EISNER.  PARAGRAPH 6 OF ROSARIO'S COMPLAINT STATED THAT
"(EACH OF THESE PLAINTIFFS COULD HAVE REGISTERED AND ENROLLED ON OR
BEFORE OCTOBER 2ND, 1971, THE LAST DATE OF REGISTRATION FOR THE
NOVEMBER 1971 ELECTIONS.  THEY EACH DID NOT DO SO."  SIMILARLY,
EISNER'S COMPLAINT STATED, IN PARAGRAPH 5:  "PLAINTIFF, EISNER, FIRST
BECAME ELIGIBLE TO VOTE ON DECEMBER 30, 1070, UPON THE ATTAINMENT OF
HIS TWENTY-FIRST BIRTHDAY."  WHETHER THE PETITIONERS FAILED TO ENROLL
BEFORE THE DEADLINE BECAUSE OF INADVERTENCE, BECAUSE OF LACK OF
INTEREST IN THE ESSENTIALLY LOCAL 1971 GENERAL ELECTION, OR FOR OTHER
REASONS IS NOT CLEAR, SINCE NONE OF THEM ADVANCES ANY EXPLANATION FOR
THIS FAILURE TO ENROLL. 

/5/  ALTHOUGH THE JUNE PRIMARY ELECTION HAS BEEN COMPLETED AND THE
PETITIONERS WILL BE ELIGIBLE TO VOTE IN THE NEXT SCHEDULED NEW YORK
PRIMARY, THIS CASE IS NOT MOOT, SINCE THE QUESTION THE PETITIONERS
RAISE IS "'CAPABLE OF REPETITION, YET EVADING REVIEW.'"  DUNN V.
BLUMSTEIN, 405 U.S. 330, 333 N. 2(1972); MOORE V. OGILVIE, 394 U.S.
814, 816(1969); SOUTHERN PACIFIC TERMINAL CO. V. ICC, 219 U.S. 498,
515(1911). 

/6/  NOT ONLY WOULD THE PETITIONERS HAVE BEEN ELIGIBLE FOR THE 1972
PRIMARY, BUT, SINCE THEY WERE ELIGIBLE IN 1971 FOR SPECIAL ENROLLMENT
UNDER SEC. 187, THEY COULD HAVE, IF THEY HAD TIMELY REGISTERED AND
ENROLLED, PARTICIPATED IN THE SEPTEMBER 14, 1971, PRIMARY. 

/7/  THE DISTRICT COURT HELD THAT THE PETITIONERS' FAILURE TO ENROLL
BEFORE THE CUTOFF DATE WAS NOT TRULY VOLUNTARY, BECAUSE IT WAS NOT DONE
WITH SUFFICIENT AWARENESS OF THE RELEVANT CIRCUMSTANCES AND LIKELY
CONSEQUENCES.  BUT THIS ARGUMENT COULD WELL BE MADE ANY TIME A STATE
IMPOSES A TIME LIMITATION OR CUTOFF POINT FOR REGISTRATION OR
ENROLLMENT.  THE PETITIONERS DO NOT CLAIM THAT THEY WERE UNAWARE OF NEW
YORK'S DEADLINE FOR ENROLLMENT. 

/8/  THE DISSENT STATES THAT "(THE COURT APPARENTLY VIEWS THIS
STATUTE AS A MERE 'TIME DEADLINE' ON PETITIONERS' ENROLLMENT . . . THAT
POSTPONES THROUGH THE NEXT PRIMARY RATHER THAN DENIES ALTOGETHER
PETITIONERS' VOTING AND ASSOCIATIONAL RIGHTS."  POST, AT 766.  AND IT
ARGUES THAT OUR DECISIONS "HAVE NEVER REQUIRED A PERMANENT BAN ON THE
EXERCISE OF VOTING AND ASSOCIATIONAL RIGHTS BEFORE A CONSTITUTIONAL
BREACH IS INCURRED."  POST, 766-676.  BUT THE DISSENT MISCHARACTERIZES
OUR VIEW OF SEC. 186.  WE DO NOT UPHOLD THE STATUTE ON THE GROUND THAT
IT IS MERELY A PROHIBITION ON VOTING IN ONE PARTICULAR PRIMARY, RATHER
THAN A PERMANENT BAN ON VOTING.  THAT IS NEITHER OUR POINT NOR THE
EFFECT OF THE LAW.  THE POINT IS THAT THE STATUTE DID NOT PROHIBIT THE
PETITIONERS FORM VOTING IN ANY ELECTION, INCLUDING THE 1972 PRIMARY,
HAD THEY CHOSEN TO MEET THE DEADLINE ESTABLISHED BY THE LAW. 

/9/  THE PETITIONERS ALSO ARGUE THAT SEC. 186 ESTABLISHES A
DURATIONAL RESIDENCE REQUIREMENT UNCONSTITUTIONAL UNDER DUNN V.
BLUMSTEIN, 405 U.S. 330(1972), AND VIOLATES THE RIGHT TO TRAVEL UNDER
SHAPIRO V. THOMPSON, 394 U.S. 618(1969).  SINCE THE EXEMPTION IN SEC.
187 APPLIES ONLY TO PERSONS WHOSE NEW RESIDENCE IS WITHIN THE SAME
COUNTY AS THEIR OLD RESIDENCE, PERSONS WHO ARRIVE IN NEW YORK STATE OR
MOVE FROM ONE COUNTY TO ANOTHER AFTER THE CUTOFF DATE, AND DEPOSIT
THEIR ENROLLMENT BLANK AT THAT TIME, ARE BARRED BY THE DELAYED
ENROLLMENT SCHEME FROM VOTING IN THE NEXT PRIMARY ELECTION.  ACCORDING
TO THE PETITIONERS, THIS CONSTITUTES AN UNCONSTITUTIONAL DURATIONAL
RESIDENCE REQUIREMENT AND IS VIOLATIVE OF THE 1970 AMENDMENTS TO THE
VOTING RIGHTS ACT OF 1965, 84 STAT. 316, 42 U.S.C. 1973AA-1. 

THE PETITIONERS, HOWEVER, LACK STANDING TO RAISE THESE CONTENTIONS. 
THEY MAKE NO CLAIM THAT THEY ARE RECENTLY ARRIVED RESIDENTS OF THE
STATE OR THAT THEY HAVE MOVED FROM ONE COUNTY TO ANOTHER NOR EVEN THAT
THEY HAVE CHANGED THEIR RESIDENCE AT ALL WITHIN THE PERIOD RELEVANT
HERE.  THE PETITIONERS CANNOT REPRESENT A CLASS TO WHICH THEY DO NOT
BELONG. 

/10/  THE PETITIONERS CONTEND THAT NEW YORK ALREADY HAS LESS DRASTIC
MEANS TO PREVENT RAIDING-- MEANS THAT WOULD ACCOMPLISH THE STATE'S GOAL
YET WOULD PERMIT THE REGISTRANT WHO INADVERTENTLY FAILED TO ENROLL IN
TIME TO VOTE IN THE PRIMARY.  SPECIFICALLY, THE PETITIONERS POINT TO
SEC. 332 OF THE STATE'S ELECTION LAW, WHICH PROVIDES THAT THE PARTY
ENROLLMENT OF ANY VOTER MAY BE CHALLENGED BY ANY PARTY MEMBER AND, UPON
THE DETERMINATION BY THE CHAIRMAN OF THE PARTY'S COUNTY COMMITTEE THAT
THE VOTER IS NOT IN SYMPATHY WITH THE PRINCIPLES OF THE PARTY, MAY BE
CANCELED BY A JUSTICE OF THE STATE SUPREME COURT AFTER A HEARING.  THAT
EFFECT ON RAIDING IN A PRIMARY.  EVERY CHALLENGE TO A WOULD-BE RAIDER
REQUIRES A FULL ADMINISTRATIVE AND JUDICIAL INQUIRY; PROOF THAT THE
CHALLENGED VOTER IS NOT IN SYMPATHY WITH THE PARTY'S PRINCIPLES DEMANDS
INQUIRY INTO THE VOTER'S MIND; AND EVEN IF THE CHALLENGE IS SUCCESSFUL,
IT STRIKES FROM THE ENROLLMENT BOOKS ONLY ONE NAME AT A TIME.  IN THE
FACE OF LARGE-SCALE RAIDING, SEC. 332 ALONE WOULD BE VIRTUALLY
INEFFECTUAL.  WE AGREE WITH THE COURT OF APPEALS THAT "(IN REQUIRING
THAT THE STATE USE TO A PROPER END THE MEANS DESIGNED TO IMPINGE
MINIMALLY UPON FUNDAMENTAL RIGHTS, THE CONSTITUTION DOES NOT REQUIRE
THAT THE STATE CHOOSE INEFFECTUAL MEANS."  458 F.2D, AT 654. 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

      I 

IT IS IMPORTANT AT THE OUTSET TO PLACE NEW YORK'S CUTOFF DATE FOR
PARTY ENROLLMENT IN PERSPECTIVE.  IT PREVENTS PROSPECTIVE VOTERS FROM
REGISTERING FOR A PARTY PRIMARY SOME EIGHT MONTHS BEFORE A PRESIDENTIAL
PRIMARY AND 11 MONTHS BEFORE A NONPRESIDENTIAL ONE.  /1/  THE COURT
RECOGNIZES, AS IT MUST, THAT THE PERIOD BETWEEN THE ENROLLMENT AND THE
PRIMARY ELECTION IS A "LENGTHY" ONE.  /2/  INDEED, NO OTHER STATE HAS
IMPOSED UPON VOTERS PREVIOUSLY UNAFFILIATED WITH ANY PARTY RESTRICTIONS
WHICH EVEN APPROACH IN SEVERITY THOSE OF NEW YORK.  /3/  AND NEW YORK
CONCEDES THAT ONLY ONE OTHER STATE-- KENTUCKY-- HAS IMPOSED AS
STRINGENT A PRIMARY REGISTRATION DEADLINE ON PERSONS WITH PRIOR PARTY
AFFILIATIONS.  /4/  CONFRONTED WITH SUCH A FACIALLY BURDENSOME
REQUIREMENT, I FIND THE COURT'S OPINION UNCONVINCING. 

THE RIGHT OF ALL PERSONS TO VOTE, ONCE THE STATE HAS DECIDED TO MAKE
IT AVAILABLE TO SOME, BECOMES A BASIC ONE UNDER THE CONSTITUTION.  DUNN
V. BLUMSTEIN, 405 U.S. 330(1972); KRAMER V. UNION SCHOOL DISTRICT, 395
U.S. 621(1969); CARRINGTON V. RASH, 380 U.S. 89(1965).  SELF-EXPRESSION
THROUGH THE PUBLIC BALLOT EQUALLY WITH ONE'S PEERS IS THE ESSENCE OF A
DEMOCRATIC SOCIETY.  REYNOLDS V. SIMS, 377 U.S. 533(1964).  A CITIZEN
WITHOUT A VOTE IS TO A LARGE EXTENT ONE WITHOUT A VOICE IN DECISIONS
WHICH MAY PROFOUNDLY AFFECT HIM AND HIS FAMILY.  WHATEVER HIS
DISAGREEMENT MAY BE WITH THE JUDGMENTS OF PUBLIC OFFICIALS, THE CITIZEN
SHOULD NEVER BE GIVEN JUST CAUSE TO THINK THAT HE WAS DENIED AN EQUAL
RIGHT TO ELECT THEM. 

YET THE COURT TODAY UPHOLDS A STATUTE WHICH IMPOSES SUBSTANTIAL AND
UNNECESSARY RESTRICTIONS ON THIS RIGHT, AS WELL AS ON THE CLOSELY
RELATED RIGHT TO ASSOCIATE WITH THE PARTY OF ONE'S CHOICE.  SEE
WILLIAMS V. RHODES, 393 U.S. 23(1968); NAACP V. ALABAMA, 357 U.S.
449(1958); UNITED STATES V. ROBEL, 389 U.S. 258(1967).  THE COURT
JUSTIFIES THIS HOLDING BY PLACING THE RESPONSIBILITY UPON PETITIONERS
FOR THEIR FAILURE TO ENROLL, AS REQUIRED BY NEW YORK LAW, EIGHT MONTHS
PRIOR TO THE PRESIDENTIAL PRIMARY.  WE ARE TOLD THAT PETITIONERS
"CLEARLY COULD HAVE REGISTERED AND ENROLLED IN THE PARTY OF THEIR
CHOICE" BEFORE THE CUTOFF DATE AND BEEN ELIGIBLE TO VOTE IN THE
PRIMARY, BUT FOR UNDETERMINED REASONS "CHOSE NOT TO," AND THAT THEIR
DISFRANCHISEMENT RESULTED FROM "THEIR OWN FAILURE TO TAKE TIMELY STEPS
TO EFFECT THEIR ENROLLMENT."  /5/ 

IF THE CUTOFF DATE WERE A LESS SEVERE ONE, I COULD AGREE. 
CERTAINLY, THE STATE IS JUSTIFIED IN IMPOSING A REASONABLY REGISTRATION
CUTOFF PRIOR TO ANY PRIMARY OR GENERAL ELECTION, BEYOND WHICH A
CITIZEN'S FAILURE TO REGISTER MAY BE PRESUMED A NEGLIGENT OR WILFUL ACT
FORFEITING HIS RIGHT TO VOTE IN A PARTICULAR ELECTION.  BUT IT IS
DIFFICULT TO PERCEIVE ANY PERSUASIVE BASIS FOR A REGISTRATION OR PARTY
ENROLLMENT DEADLINE EIGHT TO 11 MONTHS PRIOR TO ELECTION.  FAILURE TO
COMPLY WITH SUCH AN EXTREME DEADLINE CAN HARDLY BE USED TO JUSTIFY
DENIAL OF A FUNDAMENTAL CONSTITUTIONAL RIGHT.  NUMEROUS PRIOR DECISIONS
IMPOSE ON US THE OBLIGATION TO PROTECT THE CONTINUING AVAILABILITY OF
THE FRANCHISE FOR ALL CITIZENS, NOT TO SANCTION ITS PROLONGED DEFERMENT
OR DEPRIVATION.  EX PARTE SIEBOLD, 100 U.S. 371(1880); NIXON V.
HERNDON, 273 U.S. 536(1927); LANE V. WILSON, 307 U.S. 268(1939); BAKER
V. CARR, 369 U.S. 186(1962); GRAY V. SANDERS, 372 U.S. 368(1963);
WESBERRY V. SANDERS, 376 U.S. 1(1964); REYNOLDS V. SIMS, SUPRA;
CARRINGTON V. RASH, SUPRA; HARPER V. VIRGINIA BD. OF ELECTIONS, 383
U.S. 663(1966); KRAMER V. UNION SCHOOL DISTRICT, SUPRA; CIPRIANO V.
CITY OF HOUMA, 395 U.S. 701(1969); EVANS V. CORNMAN, 398 U.S.
419(1970); CITY OF PHOENIX V. KOLODZIEJSKI, 399 U.S. 204(1970); BULLOCK
V. CARTER, 405 U.S. 135(1972); DUNN V. BLUMSTEIN, SUPRA. 

THE MAJORITY EXCUSES THE CHALLENGED STATUTE BECAUSE IT DOES NOT
"ABSOLUTELY" DISENFRANCHISE PETITIONERS OR IMPOSE ANY ABSOLUTE BAN ON
THEIR FREEDOM OF ASSOCIATION.  /6/  THE STATE LIKEWISE CONTENDS THIS IS
"NOT A DISENFRANCHISING STATUTE.  /7/  THE COURT APPARENTLY VIEWS THIS
STATUTE AS A MERE "TIME DEADLINE" ON PETITIONERS' ENROLLMENT THAT
DISADVANTAGES NO IDENTIFIABLE CLASS AND THAT POSTPONES THROUGH THE NEXT
PRIMARY RATHER THAN DENIES ALTOGETHER PETITIONERS' VOTING AND
ASSOCIATIONAL RIGHTS.  /8/  I CANNOT AGREE.  DEFERMENT OF A RIGHT,
ESPECIALLY ONE AS SENSITIVE AND ESSENTIAL AS THE EXERCISE OF THE FIRST
DUTY OF CITIZENSHIP, CAN BE TANTAMOUNT TO ITS DENIAL.  AND ANY STATUTE
WHICH IMPOSES FOR EIGHT OR 11 MONTHS AN ABSOLUTE FREEZE ON PARTY
ENROLLMENT AND THE CONSEQUENT RIGHT TO VOTE TOTALLY DISFRANCHISES A
CLASS OF PERSONS WHO, FOR QUITE LEGITIMATE REASONS, DECIDE TO REGISTER
CLOSER THAN EIGHT MONTHS TO THE PRIMARY DATE AND THOSE WHO, FOR EQUALLY
LEGITIMATE REASONS, WISH TO CHOOSE OR ALTER PARTY AFFILIATION.  OUR
DECISIONS, MOREOVER, HAVE NEVER REQUIRED A PERMANENT BAN ON THE
EXERCISE OF VOTING AND ASSOCIATIONAL RIGHTS BEFORE A CONSTITUTIONAL
BREACH IS INCURRED.  RATHER, THEY HAVE UNIFORMLY RECOGNIZED THAT ANY
SERIOUS BURDEN OR INFRINGEMENT ON SUCH "CONSTITUTIONALLY PROTECTED
ACTIVITY" IS SUFFICIENT TO ESTABLISH A CONSTITUTIONAL VIOLATION, DUNN
V. BLUMSTEIN, SUPRA, AT 343; NAACP V. BUTTON, 371 U.S. 415, 438(1963);
REYNOLDS V. SIMS, SUPRA, AT 561-562. 

        II 

THE MAJORITY DOES NOT IDENTIFY THE STANDARD OF SCRUTINY IT APPLIES
TO THE NEW YORK STATUTE.  WE ARE TOLD ONLY THAT THE CUTOFF DATE IS "NOT
AN ARBITRARY TIME LIMIT UNCONNECTED TO ANY IMPORTANT STATE GOAL"; /9/
THAT IT IS "TIED TO A PARTICULARIZED LEGITIMATE PURPOSE, AND IS IN NO
SENSE INVIDIOUS OR ARBITRARY."  /10/  THE COURT DOES NOT EXPLAIN WHY
THIS FORMULATION WAS CHOSEN, WHAT PRECEDENTS SUPPORT IT, OR HOW AND IN
WHAT CONTEXTS IT IS TO BE APPLIED.  SUCH NEBULOUS PROMULGATIONS ARE
BOUND TO LEAVE THE LOWER COURTS AND STATE LEGISLATURES IN DOUBT AND
CONFUSION AS TO HOW WE WILL APPROACH FUTURE SIGNIFICANT BURDENS ON THE
RIGHT TO VOTE AND TO ASSOCIATE FREELY WITH THE PARTY OF ONE'S CHOICE. 

THE COURT'S FORMULATION, THOUGH THE TERMINOLOGY IS SOMEWHAT
STRONGER, RESEMBLES THE TRADITIONAL EQUAL PROTECTION "RATIONAL BASIS"
TEST.  ONE MAY AGREE THAT THE CHALLENGED CUTOFF DATE IS RATIONALLY
RELATED TO THE LEGITIMATE INTEREST OF NEW YORK IN PREVENTING PARTY
"RAIDING."  BUT THIS COURT'S PRIOR DECISIONS SIMPLY DO NOT PERMIT SUCH
AN APPROACH.  RATHER, THEY RECOGNIZE THAT: 

"(THE RIGHT OF SUFFRAGE IS A FUNDAMENTAL MATTER IN A FREE AND
DEMOCRATIC SOCIETY.  ESPECIALLY SINCE THE RIGHT TO EXERCISE THE
FRANCHISE IN A FREE AND UNIMPAIRED MANNER IS PRESERVATIVE OR OTHER
BASIC CIVIL AND POLITICAL RIGHTS, AND ANY ALLEGED INFRINGEMENT OF THE
RIGHT OF CITIZENS TO VOTE MUST BE CAREFULLY AND METICULOUSLY
SCRUTINIZED."  REYNOLDS V. SIMS, SUPRA, AT 561-562.  SEE ALSO YICK WO
V. HOPKINS, 118 U.S. 356(1886).     VOTING IN A PARTY PRIMARY IS AS
PROTECTED AGAINST STATE ENCROACHMENT AS VOTING IN A GENERAL ELECTION. 
BULLOCK V. CARTER, SUPRA; TERRY V. ADAMS, 345 U.S. 461(1953); UNITED
STATES V. CLASSIC, 313 U.S. 299(1941).  AND THE COURT HAS SAID QUITE
EXPLICITLY THAT "IF A CHALLENGED STATUTE GRANTS THE RIGHT TO VOTE TO
SOME CITIZENS AND DENIES THE FRANCHISE TO OTHERS, 'THE COURT MUST
DETERMINE WHETHER THE EXCLUSIONS ARE NECESSARY TO PROMOTE A COMPELLING
STATE INTEREST.'"  DUNN V. BLUMSTEIN, SUPRA, AT 337, QUOTING KRAMER V.
UNION SCHOOL DISTRICT, SUPRA, AT 627.  SEE ALSO CIPRIANO V. CITY OF
HOUMA, SUPRA, AT 704; CITY OF PHOENIX V. KOLODZIEJSKI, SUPRA, AT 205,
209.  LIKEWISE, THE COURT HAS ASSERTED THAT "THE RIGHT OF INDIVIDUALS
TO ASSOCIATE FOR THE ADVANCEMENT OF POLITICAL BELIEFS" IS "AMONG OUR
MOST PRECIOUS FREEDOMS," WILLIAMS V. RHODES, 393 U.S.,AT 30, AND MUST
BE CAREFULLY PROTECTED FROM STATE ENCROACHMENT.  NAACP V. ALABAMA,
SUPRA; BATES V. LITTLE ROCK, 361 U.S. 516(1960); GIBSON V. FLORIDA
LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S. 539(1963). 

THE INQUIRY THUS BECOMES WHETHER THE INSTANT STATUTE, BURDENING AS
IT DOES FUNDAMENTAL CONSTITUTIONAL RIGHTS, CAN WITHSTAND THE STRICT
JUDICIAL SCRUTINY CALLED FOR BY OUR PRIOR CASES.  THE ASSERTED STATE
INTEREST IN THIS CASE IS THE PREVENTION OF PARTY "RAIDING," WHICH
CONSISTS OF THE MOVEMENT OR "CROSSOVER" BY MEMBERS OF ONE PARTY INTO
ANOTHER'S PRIMARY TO "DEFEAT A CANDIDATE WHO IS ADVERSE TO THE
INTERESTS THEY CARE TO ADVANCE."  /11/  THE TYPICAL EXAMPLE IS A MEMBER
OF ONE PARTY DELIBERATELY ENTERING ANOTHER'S PRIMARY TO HELP NOMINATE A
WEAKER CANDIDATE, SO THAT HIS OWN PARTY'S NOMINEE MIGHT WIN MORE EASILY
IN THE GENERAL ELECTION.  A STATE DOES HAVE AN INTEREST IN PREVENTING
SUCH BEHAVIOR, LEST "THE EFFICACY OF THE PARTY SYSTEM IN THE DEMOCRATIC
PROCESS-- ITS USEFULNESS IN PROVIDING A UNITY OF DIVERGENT FACTIONS IN
AN ALLIANCE FOR POWER-- WOULD BE SERIOUSLY IMPAIRED," ROSARIO V.
ROCKEFELLER, 458 F.2D 649, 652(CA2).  THE COURT BELOW HELD FLATLY THAT
THE STATE INTEREST IN DETERRING "RAIDING" WAS A "COMPELLING" ONE. 
IBID. 

THE MATTER, HOWEVER, IS NOT SO EASILY RESOLVED.  THE IMPORTANCE OR
SIGNIFICANCE OF ANY SUCH INTEREST CANNOT BE DETERMINED IN A VACUUM BUT,
RATHER, IN THE CONTEXT OF THE MEANS ADVANCED BY THE STATE TO PROTECT IT
AND THE CONSTITUTIONALLY SENSITIVE ACTIVITY IT OPERATES TO IMPEDE.  THE
STATE INTEREST HERE IS HARDLY SUBSTANTIAL ENOUGH TO SUSTAIN THE
PRESUMPTION, UPON WHICH THE STATUTE APPEARS TO BE BASED, THAT MOST
PERSONS WHO CHANGE OR DECLARE PARTY AFFILIATION NEARER THAN EIGHT TO 11
MONTHS TO A PARTY PRIMARY DO SO WITH INTENT TO RAID THAT PRIMARY.  ANY
SUCH PRESUMPTION ASSUMES A WILLINGNESS TO MANIPULATE THE SYSTEM WHICH
IS NOT LIKELY TO BE WIDESPREAD. 

POLITICAL PARTIES IN THIS COUNTRY TRADITIONALLY HAVE BEEN
CHARACTERIZED BY A FLUIDITY AND OVERLAP OF PHILOSOPHY AND MEMBERSHIP. 
AND CITIZENS GENERALLY DECLARE OR ALTER PARTY AFFILIATION FOR REASONS
QUITE UNCONNECTED WITH ANY PREMEDIATED INTENTION TO DISRUPT OR
FRUSTRATE THE PLANS OF A PARTY WITH WHICH THEY ARE NOT IN SYMPATHY. 
CITIZENS CUSTOMARILY CHOOSE A PARTY AND VOTE IN ITS PRIMARY SIMPLY
BECAUSE IT PRESENTS CANDIDATES AND ISSUES MORE RESPONSIVE TO THEIR
IMMEDIATE CONCERNS AND ASPIRATIONS.  SUCH CANDIDATES OR ISSUES OFTEN
ARE NOT APPARENT EIGHT TO 11 MONTHS BEFORE A PRIMARY.  THAT A CITIZEN
SHOULD BE ABSOLUTELY PRECLUDED SO FAR IN ADVANCE FROM VOTING IN A PARTY
PRIMARY IN RESPONSE TO A SYMPATHETIC CANDIDATE, A NEW OR MEANINGFUL
ISSUE, OR CHANGING PARTY PHILOSOPHIES IN HIS STATE, RUNS CONTRARY TO
THE FUNDAMENTAL RIGHTS OF PERSONAL CHOICE AND EXPRESSION WHICH VOTING
IN THIS COUNTRY WAS DESIGNED TO SERVE. 

WHATEVER STATE INTERESTS EXISTS FOR PREVENTING CROSSOVERS FROM ONE
PARTY TO ANOTHER IS APPRECIABLY LESSENED WHERE, AS IN THE CASE OF
PETITIONERS, THERE HAS BEEN NO PREVIOUS AFFILIATION WITH ANY POLITICAL
PARTY.  THE DANGER OF VOTERS IN SYMPATHY WITH ONE PARTY "RAIDING"
ANOTHER PARTY IS INSUBSTANTIAL WHERE THE VOTER HAS MADE NO PRIOR PARTY
COMMITMENT AT ALL.  CERTAINLY, THE DANGER FALLS SHORT OF THE OVERRIDING
STATE INTEREST NEEDED TO JUSTIFY DENYING PETITIONERS, SO FAR IN
ADVANCE, THE RIGHT TO DECLARE AN INITIAL PARTY AFFILIATION AND VOTE IN
THE PARTY PRIMARY OF THEIR CHOICE. 

        III 

IN DUNN, SUPRA, AT 343, THE COURT EMPHASIZED THAT THE STATE, IN
PURSUING ITS LEGITIMATE INTEREST,

"CANNOT CHOOSE MEANS WHICH UNNECESSARILY BURDEN OR RESTRICT
CONSTITUTIONALLY PROTECTED ACTIVITY.  STATUTES AFFECTING CONSTITUTIONAL
RIGHTS MUST BE DRAWN WITH 'PRECISION,' NAACP V. BUTTON, 371 U.S. 415,
438(1963); UNITED STATES V. ROBEL, 389 U.S. 258, 265(1967), AND MUST BE
'TAILORED' TO SERVE THEIR LEGITIMATE OBJECTIVES.  SHAPIRO V. THOMPSON,
SUPRA, AT 631.  AND IT THERE ARE OTHER, REASONABLY WAYS TO ACHIEVE
THOSE GOALS WITH A LESSER BURDEN ON CONSTITUTIONALLY PROTECTED
ACTIVITY, A STATE MAY NOT CHOOSE THE WAY OF GREATER INTERFERENCE.  IF
IT ACTS AT ALL, IT MUST CHOOSE 'LESS DRASTIC MEANS.'  SHELTON V.
TUCKER, 364 U.S. 479, 488(1960)." 

THE COURT INDICATES THAT PLACING THE ENROLLMENT DEADLINE BEFORE THE
PRECEDING GENERAL ELECTION SERVES WELL THE STATE INTEREST IN
DISCOURAGING PARTY "RAIDING."  /12/  THIS FAILS TO ADDRESS THE CRITICAL
QUESTION OF WHETHER THAT INTEREST MAY BE PROTECTED ADEQUATELY BY LESS
SEVERE MEASURES.  A FORESHORTENING OF THE CHALLENGED PERIOD IN THIS
CASE WOULD NOT LEAVE THE PARTY STRUCTURE OF NEW YORK HELPLESS AND
VULNERABLE TO "RAIDING" ACTIVITIES.  OTHER STATES, WITH VARIED AND
COMPLEX PARTY SYSTEMS, HAVE MAINTAINED THEM SUCCESSFULLY WITHOUT THE
ADVANCED ENROLLMENT DEADLINE IMPOSED BY NEW YORK. 

PARTISAN POLITICAL ACTIVITIES DO NOT CONSTANTLY ENGAGE THE ATTENTION
OF LARGE NUMBERS OF AMERICANS, ESPECIALLY AS PARTY LABELS AND LOYALTIES
TEND TO BE LESS PERSUASIVE THAN ISSUES AND THE QUALITIES OF INDIVIDUAL
CANDIDATES.  THE CROSSOVER IN REGISTRATION FROM ONE PARTY TO ANOTHER IS
MOST OFTEN IMPELLED BY MOTIVES QUITE UNRELATED TO A DESIRE TO RAID OR
DISTORT A PARTY'S PRIMARY.  TO THE EXTENT THAT DELIBERATE RAIDING
OCCURS, IT IS USUALLY THE RESULT OF ORGANIZED EFFORT WHICH DEPENDS FOR
ITS SUCCESS UPON SOME RELATIVELY IMMEDIATE CONCERN OR INTEREST OF THE
VOTERS.  THIS TYPE OF EFFORT IS MORE LIKELY TO OCCUR AS A PRIMARY DATE
DRAWS NEAR.  IF NEW YORK WERE TO ADOPT A MORE REASONABLE ENROLLMENT
DEADLINE, SAY 30 TO 60 DAYS, THE PERIOD MOST VULNERABLE TO RAIDING
ACTIVITY WOULD BE PROTECTED.  MORE IMPORTANTLY, A LESS DRASTIC
ENROLLMENT DEADLINE THAN THE EIGHT OR 11 MONTHS NOW IMPOSED BY NEW YORK
WOULD MAKE THE FRANCHISE AND OPPORTUNITIES FOR LEGITIMATE PARTY
PARTICIPATION AVAILABLE TO THOSE WHO CONSTITUTIONALLY HAVE THE RIGHT TO
EXERCISE THEM.  /13/ 

/1/  OCTOBER 2, 1971, WAS THE LAST DAY ON WHICH PETITIONERS'
ENROLLMENT COULD HAVE BEEN EFFECTIVE.  JUNE 20, 1972, WAS THE DATE OF
NEW YROK'S PRESIDENTIAL PRIMARY.  THUS, THE DEADLINE WAS ACTUALLY SOME
EIGHT AND ONE-HALF MONTHS BEFORE THE PRIMARY.  IN NONPRESIDENTIAL
YEARS, THE CUTOFF RUNS FROM EARLY OCTOBER UNTIL THE FOLLOWING
SEPTEMBER. 

/2/  ANTE, AT 760. 

/3/  THE STATE DOES NOT DISPUTE THIS POINT.  SEE TR. OF ORAL ARG.
34. 

MASSACHUSETTS, ILLINOIS, NEW JERSEY, TEXAS, AND OHIO PERMIT
PREVIOUSLY UNAFFILIATED VOTERS TO DECLARE THEIR INITIAL PARTY
AFFILIATION IMMEDIATELY PRIOR TO VOTING IN THE PRIMARY OF THEIR
CHOICE.  SEE MASS. GEN. LAWS ANN., C. 53, SECS. 37, 38 (SUPP. 1793);
ILL. REV. STAT., C. 46, SECS. 5-30, 7-43, 7-45 (1971); N.J. STAT. ANN.
SEC. 19:23-45 (1964); TEX. ELECTION CODE, ART. 13.01A (SUPP. 1972
1973); OHIO REV. CODE ANN. SEC. 3513.19 (1960). 

CALIFORNIA AND PENNSYLVANIA PERMIT PREVIOUSLY UNAFFILIATED VOTERS TO
DECLARE AN INITIAL PARTY PREFERENCE UP TO THE CLOSE OF REGISTRATION
IMMEDIATELY PRECEDING THE PRIMARY.  CALIF. ELECTIONS CODE SECS. 22,
203, 311-312 (1961) (REGISTRATION CLOSES IN CALIFORNIA 53 DAYS BEFORE A
PRIMARY); PA. STAT. ANN., TIT. 25, SECS. 623-17, 951-16 (1963 AND SUPP.
1972-1973) (REGISTRATION CLOSES IN PENNSYLVANIA 50 DAYS BEFORE A
PRIMARY). 

MICHIGAN PERMITS ANY REGISTERED VOTER TO PARTICIPATE IN THE PRIMARY
OF HIS CHOICE.  MICH. COMP. LAWS SECS. 168.570, 168.575 TO 168.576,
MICH. STAT. ANN. SECS. 6.1570, 6.1576(1972).  SEE BRIEF FOR PETITIONERS
32-33. 

/4/  TR. OF ORAL ARG. 34. 

/5/  ANTE AT 757, 758.  SEE ALSO ANTE, AT 762, WHERE THE COURT
REFERS TO SEC. 186 AS MERELY IMPOSING "A LEGITIMATE TIME LIMITATION ON
THEIR (PETITIONERS') ENROLLMENT, WHICH THEY CHOSE TO DISREGARD." 

/6/  SEE ANTE, AT 757: 

"SECTION 186 OF NEW YORK'S ELECTION LAW, HOWEVER, IS QUITE
DIFFERENT.  IT DID NOT ABSOLUTELY DISENFRANCHISE THE CLASS TO WHICH THE
PETITIONERS BELONG-- NEWLY REGISTERED VOTERS WHO WERE ELIGIBLE TO
ENROLL IN A PARTY BEFORE THE PREVIOUS GENERAL ELECTION.  RATHER, THE
STATUTE MERELY IMPOSED A TIME DEADLINE ON THEIR ENROLLMENT, WHICH THEY
HAD TO MEET IN ORDER TO PARTICIPATE IN THE NEXT PRIMARY." 

SIMILARLY AT 758: 

"FOR THE SAME REASON, WE REJECT THE PETITIONERS' ARGUMENT THAT SEC.
186 VIOLATED THEIR FIRST AND FOURTEENTH AMENDMENT RIGHT OF FREE
ASSOCIATION WITH THE POLITICAL PARTY OF THEIR CHOICE.  SINCE THEY COULD
HAVE ENROLLED IN A PARTY IN TIME TO PARTICIPATE IN THE JUNE 1972
PRIMARY, SEC. 186 DID NOT CONSTITUTE A BAN ON THEIR FREEDOM OF
ASSOCIATION, BUT MERELY A TIME LIMITATION ON WHEN THEY HAD TO ACT IN
ORDER TO PARTICIPATE IN THEIR CHOSEN PARTY'S NEXT PRIMARY." 

AND AT 762: 

"NEW YORK DID NOT PROHIBIT THE PETITIONERS FROM VOTING IN THE 1972
PRIMARY ELECTION OR FROM ASSOCIATING WITH THE POLITICAL PARTY OF THEIR
CHOICE.  IT MERELY IMPOSED A LEGITIMATE TIME LIMITATION ON THEIR
ENROLLMENT, WHICH THEY CHOSE TO DISREGARD." 

IN ALL THESE INSTANCES, THE MAJORITY SEEKS TO DISTINGUISH A "TIME
LIMITATION" FROM AN ABSOLUTE DISENFRANCHISEMENT OF PETITIONERS OR AN
ABSOLUTE BAN ON THEIR ASSOCIATIONAL RIGHTS. 

/7/  TR. OF ORAL ARG. 35. 

/8/  ANTE, AT 757 AND N. 6, SUPRA. 

/9/  ANTE, AT 760. 

/10/  ANTE, AT 762. 

/11/  TR. OF ORAL ARG. 29. 

/12/  ANTE, AT 761. 

/13/  PETITIONERS ALSO SUGGEST OTHER "LESS DRASTIC" MEANS OF
PROTECTING THE STATE'S INTEREST:  GREATER RELIANCE ON THE SUMMARY
DISENROLLMENT PROCEDURES OF SEC. 332 OF THE STATE'S ELECTION LAW AND
LOYALTY OATHS, RESTRICTIVE PARTY AFFILIATION RULES OPTIONAL FOR THOSE
PARTIES WHO WISH THEM, LIMITATION OF THE STATUTE'S OPERATION TO PERSONS
WITH PRE-EXISTING PARTY AFFILIATIONS, AND CRIMINAL SANCTIONS FOR
FRAUDULENT PARTICIPATION IN THE ELECTORAL PROCESS.  TR. OR ORAL ARG. 13
21.  I MAKE NO JUDGMENT EITHER ON THE EFFICACY OF THESE ALTERNATIVES IN
PROTECTING THE STATE'S INTEREST OR ON THEIR POTENTIAL INFRINGEMENT OF
CONSTITUTIONALLY PROTECTED RIGHTS.  THEIR PRESENCE, HOWEVER, POINTS TO
THE RANGE AND VARIETY OF OTHER EXPERIMENTAL TECHNIQUES AVAILABLE FOR
NEW YORK TO CONSIDER. 

BURT NEUBORNE ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF AND SEYMOUR FRIEDMAN. 

A. SETH GREENWALD, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED
THE CAUSE FOR RESPONDENTS ROCKEFELLER ET AL. WITH HIM ON THE BRIEF WERE
LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND IRVING GALT, ASSISTANT ATTORNEY
GENERAL.  JOSEPH JASPAN FILED A BRIEF FOR RESPONDENTS MEISSER ET AL.
DAVID N. DINKINS, PRO SE, FILED A BRIEF FOR RESPONDENTS DINKINS ET AL.
..END :

















SAN ANTONIO INDEPENDENT SCHOOL DISTRICT ET AL. V. RODRIGUEZ ET AL.,
411 U.S. 1 



       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

           DISTRICT OF TEXAS

        NO. 71 - 1332.  ARGUED OCTOBER 12, 1972--DECIDED MARCH 21,

   1973; 337 F.SUPP.  280, REVERSED. 


    THE FINANCING OF PUBLIC ELEMENTARY AND SECONDARY SCHOOLS IN

  TEXAS IS A PRODUCT OF STATE AND LOCAL PARTICIPATION.  ALMOST HALF

  OF THE REVENUES ARE DERIVED FROM A LARGELY STATE FUNDED PROGRAM

  DESIGNED TO PROVIDE A BASIC MINIMUM EDUCATIONAL OFFERING IN EVERY

  SCHOOL.  EACH DISTRICT SUPPLEMENTS STATE AID THROUGH AN AD

  VALOREM TAX ON PROPERTY WITHIN ITS JURISDICTION.  APPELLEES

  BROUGHT THIS CLASS ACTION ON BEHALF OF SCHOOL CHILDREN SAID TO BE

  MEMBERS OF POOR FAMILIES WHO RESIDE IN SCHOOL DISTRICTS HAVING A

 LOW PROPERTY TAX BASE, MAKING THE CLAIM THAT THE TEXAS SYSTEM'S

  RELIANCE ON LOCAL PROPERTY TAXATION FAVORS THE MORE AFFLUENT AND

  VIOLATES EQUAL PROTECTION REQUIREMENTS BECAUSE OF SUBSTANTIAL

  INTERDISTRICT DISPARITIES IN PER-PUPIL EXPENDITURES RESULTING

  PRIMARILY FROM DIFFERENCES IN THE VALUE OF ASSESSABLE PROPERTY

  AMONG THE DISTRICTS.  THE DISTRICT COURT, FINDING THAT WEALTH IS

  A "SUSPECT"  CLASSIFICATION AND THAT EDUCATION IS A "FUNDAMENTAL"

  RIGHT, CONCLUDED THAT THE SYSTEM COULD BE UPHELD ONLY UPON A

SHOWING, WHICH APPELLANTS FAILED TO MAKE, THAT THERE WAS A

 COMPELLING STATE INTEREST FOR THE SYSTEM.  THE COURT ALSO

  CONCLUDED THAT APPELLANTS FAILED EVEN TO DEMONSTRATE A REASONABLE

  OR RATIONAL BASIS FOR THE STATE'S SYSTEM.  HELD: 

     1.  THIS IS NOT A PROPER CASE IN WHICH TO EXAMINE A STATE'S

  LAWS UNDER STANDARDS OF STRICT JUDICIAL SCRUTINY, SINCE THAT TEST

  IS RESERVED FOR CASES INVOLVING LAWS THAT OPERATE TO THE

  DISADVANTAGE OF SUSPECT CLASSES OR INTERFERE WITH THE EXERCISE OF

  FUNDAMENTAL RIGHTS AND LIBERTIES EXPLICITLY OR IMPLICITY

  PROTECTED BY THE CONSTITUTION. 

[[HC2'(ORIGINAL DOCUMENT PAGE 2)'

  PP. 18 - 44. 

     (A) THE TEXAS SYSTEM DOES NOT DISADVANTAGE ANY SUSPECT CLASS. 

  IT HAS NOT BEEN SHOWN TO DISCRIMINATE AGAINST ANY DEFINABLE CLASS

  OF "POOR" PEOPLE OR TO OCCASION DISCRIMINATIONS DEPENDING ON THE

  RELATIVE WEALTH OF THE FAMILIES IN ANY DISTRICT.  AND, INSOFAR AS

  THE FINANCING SYSTEM DISADVANTAGES THOSE WHO, DISREGARDING THEIR

  INDIVIDUAL INCOME CHARACTERISTICS, RESIDE IN COMPARATIVELY POOR

 SCHOOL DISTRICTS, THE RESULTING CLASS CANNOT BE SAID TO BE

  SUSPECT.  PP. 18 - 28. 

     (B) NOR DOES THE TEXAS SCHOOL-FINANCING SYSTEM IMPERMISSIBLY

  INTERFERE WITH THE EXERCISE OF A "FUNDAMENTAL" RIGHT OR LIBERTY. 

  THOUGH EDUCATION IS NOT WITHIN THE LIMITED CATEGORY OF RIGHTS

  RECOGNIZED BY THIS COURT AS GUARANTEED BY THE CONSTITUTION.  EVEN

  IF SOME IDENTIFIABLE QUANTUM OF EDUCATION IS ARGUABLY ENTITLED TO

  CONSTITUTIONAL PROTECTION TO MAKE MEANINGFUL THE EXERCISE OF

  OTHER CONSTITUTIONAL RIGHTS, HERE THERE IS NO SHOWING THAT THE

  TEXAS SYSTEM FAILS TO PROVIDE THE BASIC MINIMAL SKILLS NECESSARY

  FOR THAT PURPOSE.  PP. 29 - 39. 

     (C) MOREOVER, THIS IS AN INAPPROPRIATE CASE IN WHICH TO INVOKE

  STRICT SCRUTINY SINCE IT INVOLVES THE MOST DELICATE AND DIFFICULT

  QUESTIONS OF LOCAL TAXATION, FISCAL PLANNING, EDUCATIONAL POLICY,

  AND FEDERALISM, CONSIDERATIONS COUNSELING A MORE RESTRAINED FORM

  OF REVIEW.  PP. 40 - 44. 

     2.  THE TEXAS SYSTEM DOES NOT VIOLATE THE EQUAL PROTECTION

  CLAUSE OF THE FOURTEENTH AMENDMENT.  THOUGH CONCEDEDLY IMPERFECT,

  THE SYSTEM BEARS A RATIONAL RELATIONSHIP TO A LEGITIMATE STATE

  PURPOSE.  WHILE ASSURING A BASIC EDUCATION FOR EVERY CHILD IN THE

  STATE, IT PERMITS AND ENCOURAGES PARTICIPATION IN AND SIGNIFICANT

  CONTROL OF EACH DISTRICT'S SCHOOLS AT THE LOCAL LEVEL.  PP. 44 -

  53. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, BLACKMUN, AND REHNQUIST, JJ., JOINED.  STEWART, J.,
FILED A CONCURRING OPINION, POST, P. 59. 

[[HC3'(ORIGINAL DOCUMENT PAGE 3)'  BRENNAN, J., FILED A DISSENTING
OPINION, POST, P. 62.  WHITE, J., FILED A DISSENTING OPINION, IN WHICH
DOUGLAS AND BRENNAN, JJ., JOINED, POST, P. 63.  MARSHALL, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P. 70. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

[[HC4'(ORIGINAL DOCUMENT PAGE 4)' 

THIS SUIT ATTACKING THE TEXAS SYSTEM OF FINANCING PUBLIC EDUCATION
WAS INITIATED BY MEXICAN-AMERICAN PARENTS WHOSE CHILDREN ATTEND THE
ELEMENTARY AND SECONDARY SCHOOLS IN THE EDGEWOOD INDEPENDENT SCHOOL
DISTRICT, AN URBAN SCHOOL DISTRICT IN SAN ANTONIO, TEXAS.  /1/  THEY
BROUGHT A CLASS ACTION ON BEHALF OF SCHOOL CHILDREN THROUGHOUT THE
STATE WHO ARE MEMBERS OF MINORITY GROUPS OR WHO ARE POOR AND RESIDE IN
SCHOOL DISTRICTS HAVING A LOW PROPERTY TAX BASE. 

[[HC5'(ORIGINAL DOCUMENT PAGE 5)'  NAMED AS DEFENDANTS /2/  WERE THE
STATE BOARD OF EDUCATION, THE COMMISSIONER OF EDUCATION, THE STATE
ATTORNEY GENERAL, AND THE BEXAR COUNTY (SAN ANTONIO) BOARD OF
TRUSTEES.  THE COMPLAINT WAS FILED IN THE SUMMER OF 1968 AND A THREE
JUDGE COURT WAS IMPANELED IN JANUARY 1969.  /3/ IN DECEMBER 1971 /4/
THE PANEL RENDERED ITS JUDGMENT IN A PER CURIAM OPINION HOLDING THE
TEXAS SCHOOL FINANCE SYSTEM UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  /5/ 

[[HC6'(ORIGINAL DOCUMENT PAGE 6)'  THE STATE APPEALED, AND WE NOTED
PROBABLE JURISDICTION TO CONSIDER THE FAR-REACHING CONSTITUTIONAL
QUESTIONS PRESENTED.  406 U.S. 966 (1972).  FOR THE REASONS STATED IN
THIS OPINION, WE REVERSE THE DECISION OF THE DISTRICT COURT. 

        I 

THE FIRST TEXAS STATE CONSTITUTION, PROMULGATED UPON TEXAS' ENTRY
INTO THE UNION IN 1845, PROVIDED FOR THE ESTABLISHMENT OF A SYSTEM OF
FREE SCHOOLS.  /6/  EARLY IN ITS HISTORY, TEXAS ADOPTED A DUAL APPROACH
TO THE FINANCING OF ITS SCHOOLS, RELYING ON MUTUAL PARTICIPATION BY THE
LOCAL SCHOOL DISTRICTS AND THE STATE.  AS EARLY AS 1883, THE STATE
CONSTITUTION WAS AMENDED TO PROVIDE FOR THE CREATION OF LOCAL SCHOOL
DISTRICTS EMPOWERED TO LEVY AD VALOREM TAXES WITH THE CONSENT OF LOCAL
TAXPAYERS FOR THE "ERECTION . . . . OF SCHOOL BUILDINGS" AND FOR THE
"FURTHER MAINTENANCE OF PUBLIC FREE SCHOOLS."  /7/  SUCH LOCAL FUNDS AS
WERE RAISED WERE SUPPLEMENTED BY FUNDS DISTRIBUTED TO EACH DISTRICT
FROM THE STATE'S PERMANENT AND AVAILABLE SCHOOL FUNDS.  /8/ 

[[HC7'(ORIGINAL DOCUMENT PAGE 7)'  THE PERMANENT SCHOOL FUND, ITS
PREDECESSOR ESTABLISHED IN 1854 WITH $2,000,000 REALIZED FROM AN
ANNEXATION SETTLEMENT, /9/ WAS THEREAFTER ENDOWED WITH MILLIONS OF
ACRES OF PUBLIC LAND SET ASIDE TO ASSURE A CONTINUED SOURCE OF INCOME
FOR SCHOOL SUPPORT.  /10/  THE AVAILABLE SCHOOL FUND, WHICH RECEIVED
INCOME FROM THE PERMANENT SCHOOL FUND AS WELL AS FROM A STATE AD
VALOREM PROPERTY TAX AND OTHER DESIGNATED TAXES, /11/  SERVED AS THE
DISBURSING ARM FOR MOST STATE EDUCATIONAL FUNDS THROUGHOUT THE LATE
1800'S AND FIRST HALF OF THE CENTURY.  ADDITIONALLY, IN 1918 AN
INCREASE IN STATE PROPERTY TAXES WAS USED TO FINANCE A PROGRAM
PROVIDING FREE TEXTBOOKS THROUGHOUT THE STATE.  /12/ 

UNTIL RECENT TIMES, TEXAS WAS A PREDOMINANTLY RURAL STATE AND ITS
POPULATION AND PROPERTY WEALTH WERE SPREAD RELATIVELY EVENLY ACROSS THE
STATE.  /13/  SIZABLE DIFFERENCES IN THE VALUE OF ASSESSABLE PROPERTY
BETWEEN LOCAL SCHOOL DISTRICTS BECAME INCREASINGLY EVIDENT AS THE STATE
BECAME MORE INDUSTRIALIZED AND AS RURAL-TO-URBAN POPULATION SHIFTS
BECAME MORE PRONOUNCED.  /14/ 

[[HC8'(ORIGINAL DOCUMENT PAGE 8)'  THE LOCATION OF COMMERCIAL AND
INDUSTRIAL PROPERTY BEGAN TO PLAY A SIGNIFICANT ROLE IN DETERMINING THE
AMOUNT OF TAX RESOURCES AVAILABLE TO EACH SCHOOL DISTRICT.  THESE
GROWING DISPARITIES IN POPULATION AND TAXABLE PROPERTY BETWEEN
DISTRICTS WERE RESPONSIBLE IN PART FOR INCREASINGLY NOTABLE DIFFERENCES
IN LEVELS OF LOCAL EXPENDITURE FOR EDUCATION.  /15/ 

IN DUE TIME IT BECAME APPARENT TO THOSE CONCERNED WITH FINANCING
PUBLIC EDUCATION THAT CONTRIBUTIONS FROM THE AVAILABLE SCHOOL FUND WERE
NOT SUFFICIENT TO AMELIORATE THESE DISPARITIES.  /16/  PRIOR TO 1939,
THE AVAILABLE SCHOOL FUND CONTRIBUTED MONEY TO EVERY SCHOOL DISTRICT AT
A RATE OF $17.50 PER SCHOOL-AGE CHILD.  /17/  ALTHOUGH THE AMOUNT WAS
INCREASED SEVERAL TIMES IN THE EARLY 1940'S, /18/  THE FUND WAS
PROVIDING ONLY $46 PER STUDENT BY 1945.  /19/ 

RECOGNIZING THE NEED FOR INCREASED STATE FUNDING TO HELP OFFSET
DISPARITIES IN LOCAL SPENDING AND TO MEET TEXAS'  CHANGING EDUCATIONAL
REQUIREMENTS, THE STATE LEGISLATURE IN THE LATE 1940'S UNDERTOOK AN
THOROUGH EVALUATION OF PUBLIC EDUCATION WITH AN EYE TOWARD MAJOR
REFORM. 

[[HC9'(ORIGINAL DOCUMENT PAGE 9)'  IN 1947, AN 18-MEMBER COMMITTEE,
COMPOSED OF EDUCATORS AND LEGISLATORS, WAS APPOINTED TO EXPLORE
ALTERNATIVE SYSTEMS IN OTHER STATES AND TO PROPOSE A FUNDING SCHEME
THAT WOULD GUARANTEE A MINIMUM OR BASIC EDUCATIONAL OFFERING TO EACH
CHILD AND THAT WOULD HELP OVERCOME INTERDISTRICT DISPARITIES IN TAXABLE
RESOURCES.  THE COMMITTEE'S EFFORTS LED TO THE PASSAGE OF THE GILMER
AIKIN BILLS, NAMED FOR THE COMMITTEE'S CO-CHAIRMEN, ESTABLISHING THE
TEXAS MINIMUM FOUNDATION SCHOOL PROGRAM.  /20/  TODAY, THIS PROGRAM
ACCOUNTS FOR APPROXIMATELY HALF OF THE TOTAL EDUCATIONAL EXPENDITURES
IN TEXAS.  /21/ 

THE PROGRAM CALLS FOR STATE AND LOCAL CONTRIBUTIONS TO A FUND
EARMARKED SPECIFICALLY FOR TEACHER SALARIES, OPERATING EXPENSES, AND
TRANSPORTATION COSTS.  THE STATE, SUPPLYING FUNDS FROM ITS GENERAL
REVENUES, FINANCES APPROXIMATELY 80% OF THE PROGRAM, AND THE SCHOOL
DISTRICTS ARE RESPONSIBLE--AS A UNIT--FOR PROVIDING THE REMAINING 20%.
THE DISTRICTS' SHARE, KNOWN AS THE LOCAL FUND ASSIGNMENT, IS
APPORTIONED AMONG THE SCHOOL DISTRICTS UNDER A FORMULA DESIGNED TO
REFLECT EACH DISTRICT'S RELATIVE TAXPAYING ABILITY.  THE ASSIGNMENT IS
FIRST DIVIDED AMONG TEXAS' 254 COUNTIES PURSUANT TO A COMPLICATED
ECONOMIC INDEX THAT TAKES INTO ACCOUNT THE RELATIVE VALUE OF EACH
COUNTY'S CONTRIBUTION TO THE STATE'S TOTAL INCOME FROM MANUFACTURING,
MINING, AND AGRICULTURAL ACTIVITIES. 

[[HC10'(ORIGINAL DOCUMENT PAGE 10)'  IT ALSO CONSIDERS EACH COUNTY'S
RELATIVE SHARE OF ALL PAYROLLS PAID WITHIN THE STATE AND, TO A LESSER
EXTENT, CONSIDERS EACH COUNTY'S SHARE OF ALL PROPERTY TO THE STATE. 
/22/  EACH COUNTY'S ASSIGNMENT IS THEN DIVIDED AMONG ITS SCHOOL
DISTRICTS ON THE BASIS OF EACH DISTRICT'S SHARE OF ASSESSABLE PROPERTY
WITHIN THE COUNTY.  /25/  THE DISTRICT, IN TURN, FINANCES ITS SHARE OF
THE ASSIGNMENT OUT OF REVENUES FROM LOCAL PROPERTY TAXATION. 

THE DESIGN OF THIS COMPLEX SYSTEM WAS TWOFOLD.  FIRST, IT WAS AN
ATTEMPT TO ASSURE THAT THE FOUNDATION PROGRAM WOULD HAVE AN EQUALIZING
INFLUENCE ON EXPENDITURE LEVELS BETWEEN SCHOOL DISTRICTS BY PLACING THE
HEAVIEST BURDEN ON THE SCHOOL DISTRICTS MOST CAPABLE OF PAYING. 
SECOND, THE PROGRAM'S ARCHITECTS SOUGHT TO ESTABLISH A LOCAL FUND
ASSIGNMENT THAT WOULD FORCE EVERY SCHOOL DISTRICT TO CONTRIBUTE TO THE
EDUCATION OF ITS CHILDREN /24/  BUT THAT WOULD NOT BY ITSELF EXHAUST
ANY DISTRICT'S RESOURCES.  /25/  TODAY EVERY SCHOOL DISTRICT DOES
IMPOSE A PROPERTY TAX FROM WHICH IT DERIVES LOCALLY EXPENDABLE FUNDS IN
EXCESS OF THE AMOUNT NECESSARY TO SATISFY ITS LOCAL FUND ASSIGNMENT
UNDER THE FOUNDATION PROGRAM. 

IN THE YEARS SINCE THIS PROGRAM WENT INTO OPERATION IN 1949,
EXPENDITURES FOR EDUCATION--FROM STATE AS WELL AS LOCAL SOURCES--HAVE
INCREASED STEADILY. 

[[HC11'(ORIGINAL DOCUMENT PAGE 11)'  BETWEEN 1949 AND 1967,
EXPENDITURES INCREASED APPROXIMATELY 500%.  /26/  IN THE LAST DECADE
ALONE THE TOTAL PUBLIC SCHOOL BUDGET ROSE FROM $750 MILLION TO $2.1
BILLION /27/  AND THESE INCREASES HAVE BEEN REFLECTED IN CONSISTENTLY
RISING PER-PUPIL EXPENDITURES THROUGHOUT THE STATE.  /28/  TEACHER
SALARIES, BY FAR THE LARGEST ITEM IN ANY SCHOOL'S BUDGET, HAVE
INCREASED DRAMATICALLY--THE STATE-SUPPORTED MINIMUM SALARY FOR TEACHERS
POSSESSING COLLEGE DEGREES HAS RISEN FROM $2,400 TO $6,000 OVER THE
LAST 20 YEARS.  /29/ 

THE SCHOOL DISTRICT IN WHICH APPELLEES RESIDE, THE EDGEWOOD
INDEPENDENT SCHOOL DISTRICT, HAS BEEN COMPARED THROUGHOUT THIS
LITIGATION WITH THE ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT.  THIS
COMPARISON BETWEEN THE LEAST AND MOST AFFLUENT DISTRICTS OF THE SAN
ANTONIO AREA SERVES TO ILLUSTRATE THE MANNER IN WHICH THE DUAL SYSTEM
OF FINANCE OPERATES AND TO INDICATE THE EXTENT TO WHICH SUBSTANTIAL
DISPARITIES EXIST DESPITE THE STATE'S IMPRESSIVE PROGRESS IN RECENT
YEARS.  EDGEWOOD IS ONE OF SEVEN PUBLIC SCHOOL DISTRICTS IN THE
METROPOLITAN AREA.  APPROXIMATELY 22,000 STUDENTS ARE ENROLLED IN ITS
25 ELEMENTARY AND SECONDARY SCHOOLS.  THE DISTRICT IS SITUATED IN THE
CORE-CITY SECTOR OF SAN ANTONIO IN A RESIDENTIAL NEIGHBORHOOD THAT HAS
LITTLE COMMERCIAL OR INDUSTRIAL PROPERTY. 

[[HC12'(ORIGINAL DOCUMENT PAGE 12)'  THE RESIDENTS ARE PREDOMINANTLY
OF MEXICAN-AMERICAN DESCENT:  APPROXIMATELY 90% OF THE STUDENT
POPULATION IS MEXICAN-AMERICAN AND OVER 6%IS NEGRO.  THE AVERAGE
ASSESSED PROPERTY VALUE PER PUPIL IS $5,960--THE LOWEST IN THE
METROPOLITAN AREA--AND THE MEDIAN FAMILY INCOME ($4,686) IS ALSO THE
LOWEST.  /30/  AT AN EQUALIZED TAX RATE OF $1.05 PER $100 OF ASSESSED
PROPERTY--THE HIGHEST IN THE METROPOLITAN AREA--THE DISTRICT
CONTRIBUTED $26 TO THE EDUCATION OF EACH CHILD FOR THE 1967 - 1968
SCHOOL YEAR ABOVE ITS LOCAL FUND ASSIGNMENT FOR THE MINIMUM FOUNDATION
PROGRAM.  THE FOUNDATION PROGRAM CONTRIBUTED $222 PER PUPIL FOR A STATE
LOCAL TOTAL OF $248.  /31/  FEDERAL FUNDS ADDED ANOTHER $108 FOR A
TOTAL OF $356 PER PUPUL.  /32/ 

ALAMO HEIGHTS IS THE MOST AFFLUENT SCHOOL DISTRICT IN SAN ANTONIO. 
ITS SIX SCHOOLS, HOUSING APPROXIMATELY 5,000 STUDENTS, ARE SITUATED IN
A RESIDENTIAL COMMUNITY QUITE UNLIKE THE EDGEWOOD DISTRICT.  THE SCHOOL
POPULATION IS PREDOMINANTLY "ANGLO," HAVING ONLY 18% MEXICAN-AMERICANS
AND LESS THAN 1% NEGROES.  THE ASSESSED PROPERTY VALUE PER PUPIL
EXCEEDS $49,000, /33/  AND THE MEDIAN FAMILY INCOME IS $8,001. 

[[HC13'(ORIGINAL DOCUMENT PAGE 13)'  IN 1967 - 1968 THE LOCAL TAX
RATE OF $.85 PER $100 OF VALUATION YIELDED $333 PER PUPIL OVER AND
ABOVE ITS CONTRIBUTION TO THE FOUNDATION PROGRAM.  COUPLED WITH THE
$225 PROVIDED FROM THAT PROGRAM, THE DISTRICT WAS ABLE TO SUPPLY $558
PER STUDENT.  SUPPLEMENTED BY A $36 PER-PUPIL GRANT FROM FEDERAL
SOURCES, ALAMO HEIGHTS SPENT $594 PER PUPIL. 

ALTHOUGH THE 1967 - 1968 SCHOOL YEAR FIGURES PROVIDE THE ONLY
COMPLETE STATISTICAL BREAKDOWN FOR EACH CATEGORY OF AID, /34/  MORE
RECENT PARTIAL STATISTICS INDICATE THAT THE PREVIOUSLY NOTED TREND OF
INCREASING STATE AID HAS BEEN SIGNIFICANT.  FOR THE 1970 - 1971 SCHOOL
YEAR, THE FOUNDATION SCHOOL PROGRAM ALLOTMENT FOR EDGEWOOD WAS $356 PER
PUPIL, A 62% INCREASE OVER THE 1967 - 1968 SCHOOL YEAR.  INDEED, STATE
AID ALONE IN 1970 - 1971 EQUALED EDGEWOOD'S ENTIRE 1967 - 1968 SCHOOL
BUDGET FROM LOCAL, STATE, AND FEDERAL SOURCES.  ALAMO HEIGHTS ENJOYED A
SIMILAR INCREASE UNDER THE FOUNDATION PROGRAM, NETTING $491 PER PUPIL
IN 1970 - 1971.  /35/  THESE RECENT FIGURES ALSO REVEAL THE EXTENT TO
WHICH THESE TWO DISTRICTS' ALLOTMENTS WERE FUNDED FROM THEIR OWN
REQUIRED CONTRIBUTIONS TO THE LOCAL FUND ASSIGNMENT.  ALAMO HEIGHTS,
BECAUSE OF ITS RELATIVE WEALTH, WAS REQUIRED TO CONTRIBUTE OUT OF ITS
LOCAL PROPERTY TAX COLLECTIONS APPROXIMATELY $100 PER PUPIL, OR ABOUT
20% OF ITS FOUNDATION GRANT. 

[[HC14'(ORIGINAL DOCUMENT PAGE 14)'  EDGEWOOD, ON THE OTHER HAND, PAID
ONLY $8.46 PER PUPIL, WHICH IS ABOUT 2.4% OF ITS GRANT.  /36/  IT
APPEARS THEN THAT, AT LEAST AS TO THESE TWO DISTRICTS, THE LOCAL FUND
ASSIGNMENT DOES REFLECT A ROUGH APPROXIMATION OF THE RELATIVE TAXPAYING
POTENTIAL OF EACH.  /37/ 

DESPITE THESE RECENT INCREASES, SUBSTANTIAL INTERDISTRICT
DISPARITIES IN SCHOOL EXPENDITURES FOUND BY THE DISTRICT COURT TO
PREVAIL IN SAN ANTONIO AND IN VARYING DEGREES THROUGHOUT THE STATE /38/
STILL EXIST. 

[[HC15'(ORIGINAL DOCUMENT PAGE 15)'  AND IT WAS THESE DISPARITIES,
LARGELY ATTRIBUTABLE TO DIFFERENCES IN THE AMOUNTS OF MONEY COLLECTED
THROUGH LOCAL PROPERTY TAXATION, THAT LED THE DISTRICT COURT TO
CONCLUDE THAT TEXAS' DUAL SYSTEM OF PUBLIC SCHOOL FINANCING VIOLATED
THE EQUAL PROTECTION CLAUSE.  THE DISTRICT COURT HELD THAT THE TEXAS
SYSTEM DISCRIMINATES ON THE BASIS OF WEALTH IN THE MANNER IN WHICH
EDUCATION IS PROVIDED FOR ITS PEOPLE. 

[[HC16'(ORIGINAL DOCUMENT PAGE 16)'  337 F. SUPP., AT 282.  FINDING
THAT WEALTH IS A "SUSPECT"  CLASSIFICATION AND THAT EDUCATION IS A
"FUNDAMENTAL" INTEREST, THE DISTRICT COURT HELD THAT THE TEXAS SYSTEM
COULD BE SUSTAINED ONLY IF THE STATE COULD SHOW THAT IT WAS PREMISED
UPON SOME COMPELLING STATE INTEREST.  ID., AT 282 - 284.  ON THIS ISSUE
THE COURT CONCLUDED THAT "(NOT ONLY ARE DEFENDANTS UNABLE TO
DEMONSTARATE A COMPELLING STATE INTERESTS . . . THEY FAIL EVEN TO
ESTABLISH A REASONABLE BASIS FOR THESE CLASSIFICATIONS."  ID., AT 284. 

TEXAS VIRTUALLY CONCEDES THAT ITS HISTORICALLY ROOTED DUAL SYSTEM OF
FINANCING EDUCATION COULD NOT WITHSTAND THE STRICT JUDICIAL SCRUTINY
THAT THIS COURT HAS FOUND APPROPRIATE IN REVIEWING LEGISLATIVE
JUDGMENTS THAT INTERFERE WITH FUNDAMENTAL CONSTITUTIONAL RIGHTS /39/
OR THAT INVOLVE SUSPECT CLASSIFICATIONS.  /40/  IF, AS PREVIOUS
DECISIONS HAVE INDICATED, STRICT SCRUTINY MEANS THAT THE STATE'S SYSTEM
IS NOT ENTITLED TO THE USUAL PRESUMPTION OF VALIDITY, THAT THE STATE
RATHER THAN THE COMPLAINANTS MUST CARRY A "HEAVY BURDEN OF
JUSTIFICATION," THAT THE STATE MUST DEMONSTRATE THAT ITS EDUCATIONAL
SYSTEM HAS BEEN STRUCTURED WITH "PRECISION," AND IS "TAILORED" NARROWLY
TO SERVE LEGITIMATE OBJECTIVES AND THAT IT HAS SELECTED THE "LESS
DRASTIC MEANS" FOR EFFECTUATING ITS OBJECTIVES, /41/  THE TEXAS
FINANCING SYSTEM AND ITS COUNTERPART IN VIRTUALLY EVERY OTHER STATE
WILL NOT PASS MUSTER.  THE STATE CANDIDLY ADMITS THAT "(NO ONE FAMILIAR
WITH THE TEXAS SYSTEM WOULD CONTEND THAT IT HAS YET ACHIEVED
PERFECTION."  /42/     [[HC17'(ORIGINAL DOCUMENT PAGE 17)'  APART FROM
ITS CONCESSION THAT EDUCATIONAL FINANCING IN TEXAS HAS "DEFECTS"  /43/
AND "IMPERFECTIONS,"  /44/  THE STATE DEFENDS THE SYSTEM'S RATIONALITY
WITH VIGOR AND DISPUTES THE DISTRICT COURT'S FINDING THAT IT LACKS A
"REASONABLE BASIS."     THIS, THEN, ESTABLISHES THE FRAMEWORK FOR OUR
ANALYSIS.  WE MUST DECIDE, FIRST, WHETHER THE TEXAS SYSTEM OF FINANCING
PUBLIC EDUCATION OPERATES TO THE DISADVANTAGE OF SOME SUSPECT CLASS OR
IMPINGES UPON A FUNDAMENTAL RIGHT EXPLICITLY OR IMPLICITLY PROTECTED BY
THE CONSSITUTION, THEREBY REQUIRING STRICT JUDICIAL SCRUTINY.  IF SO,
THE JUDGMENT OF THE DISTRICT COURT SHOULD BE AFFIRMED.  IF NOT, THE
TEXAS SCHEME MUST STILL BE EXAMINED TO DETERMINE WHETHER IT RATIONALLY
FURTHERS SOME LEGITIMATE, ARTICULATED STATE PURPOSE AND THEREFORE DOES
NOT CONSTITUTE AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

        II 

THE DISTRICT COURT'S OPINION DOES NOT REFLECT THE NOVELTY AND
COMPLEXITY OF THE CONSTITUTIONAL QUESTIONS POSED BY APPELLEES'
CHALLENGE TO TEXAS' SYSTEM OF SCHOOL FINANCING.  IN CONCLUDING THAT
STRICT JUDICIAL SCRUTINY WAS REQUIRED, THAT COURT RELIED ON DECISIONS
DEALING WITH THE RIGHTS OF INDIGENTS TO EQUAL TREATMENT IN THE CRIMINAL
TRIAL AND APPELLATE PROCESSES, 45 AND ON CASES DISAPPROVING WEALTH
RESTRICTIONS ON THE RIGHT TO VOTE.  /46/  THOSE CASES, THE DISTRICT
COURT CONCLUDED, ESTABLISHED WEALTH AS A SUSPECT CLASSIFICATION. 

[[HC18'(ORIGINAL DOCUMENT PAGE 18)'  FINDING THAT THE LOCAL PROPERTY
TAX SYSTEM DISCRIMINATED ON THE BASIS OF WEALTH, IT REGARDED THOSE
PRECEDENTS AS CONTROLLING.  IT THEN REASONED, BASED ON DECISIONS OF
THIS COURT AFFIRMING THE UNDENIABLE IMPORTANCE OF EDUCATION, /47/  THAT
THERE IS A FUNDAMENTAL RIGHT TO EDUCATION AND THAT, ABSENT SOME
COMPELLING STATE JUSTIFICATION, THE TEXAS SYSTEM COULD NOT STAND. 

WE ARE UNABLE TO AGREE THAT THIS CASE, WHICH IN SIGNIFICANT ASPECTS
IS SUI GENERIS, MAY BE SO NEATLY FITTED INTO THE CONVENTIONAL MOSAIC OF
CONSTITUTIONAL ANALYSIS UNDER THE EQUAL PROTECTION CLAUSE.  INDEED, FOR
THE SEVERAL REASONS THAT FOLLOW, WE FIND NEITHER THE SUSPECT
CLASSIFICATION NOR THE FUNDAMENTAL-INTEREST ANALYSIS PERSUASIVE. 

A 

THE WEALTH, DISCRIMINATION DISCOVERED BY THE DISTRICT COURT IN THIS
CASE, AND BY SEVERAL OTHER COURTS THAT HAVE RECENTLY STRUCK DOWN SCHOOL
FINANCING LAWS IN OTHER STATES, /48/  IS QUITE UNLIKE ANY OF THE FORMS
OF WEALTH DISCRIMINATION HERETOFORE REVIEWED BY THE COURT.  RATHER THAN
FOCUSING ON THE UNIQUE FEATURES OF THE ALLEGED DISCRIMINATION, THE
COURTS IN THESE CASES HAVE VIRTUALLY ASSUMED THEIR FINDINGS OF A
SUSPECT CLASSIFICATION THROUGH A SIMPLISTIC PROCESS OF ANALYSIS:
SINCE, UNDER THE TRADITIONAL SYSTEMS OF FINANCING PUBLIC SCHOOLS, SOME
POORER PEOPLE RECEIVE LESS EXPENSIVE EDUCATIONS THAN OTHER MORE
AFFLUENT PEOPLE, THESE SYSTEMS DISCRIMINATE ON THE BASIS OF WEALTH. 

[[HC19'(ORIGINAL DOCUMENT PAGE 19)'  THIS APPROACH LARGELY IGNORES
THE HARD THRESHOLD QUESTIONS, INCLUDING WHETHER IT MAKES A DIFFERENCE
FOR PURPOSES OF CONSIDERATION UNDER THE CONSTITUTION THAT THE CLASS OF
DISADVANTAGED "POOR" CANNOT BE IDENTIFIED OR DEFINED IN CUSTOMARY EQUAL
PROTECTION TERMS, AND WHETHER THE RELATIVE--RATHER THAN ABSOLUTE-
NATURE OF THE ASSERTED DEPRIVATION IS OF SIGNIFICANT CONSEQUENCE. 
BEFORE A STATE'S LAWS AND THE JUSTIFICATIONS FOR THE CLASSIFICATIONS
THEY CREATE ARE SUBJECTED TO STRICT JUDICIAL SCRUTINY, WE THINK THESE
THRESHOLD CONSIDERATIONS MUST BE ANALYZED MORE CLOSELY THAN THEY WERE
IN THE COURT BELOW. 

THE CASE COMES TO US WITH NO DEFINITIVE DESCRIPTION OF THE
CLASSIFYING FACTS OR DELINEATION OF THE DISFAVORED CLASS.  EXAMINATION
OF THE DISTRICT COURT'S OPINION AND OF APPELLEES' COMPLAINT, BRIEFS,
AND CONTENTIONS AT ORAL ARGUMENT SUGGESTS, HOWEVER, AT LEAST THREE WAYS
IN WHICH THE DISCRIMINATION CLAIMED HERE MIGHT BE DESCRIBED.  THE TEXAS
SYSTEM OF SCHOOL FINANCING MIGHT BE REGARDED AS DISCRIMINATING (1)
AGAINST "POOR" PERSONS WHOSE INCOMES FALL BELOW SOME IDENTIFIABLE LEVEL
OF POVERTY OR WHO MIGHT BE CHARACTERIZED AS FUNCTIONALLY "INDIGENT,"
/49/  OR (2) AGAINST THOSE WHO ARE RELATIVELY POORER THAN OTHERS, /50/
OR (3) AGAINST ALL THOSE WHO, IRRESPECTIVE OF THEIR PERSONAL INCOMES,
HAPPEN TO RESIDE IN RELATIVELY POORER SCHOOL DISTRICTS.  /51/  OUR TASK
MUST BE TO ASCERTAIN WHETHER, IN FACT, THE TEXAS SYSTEM HAS BEEN SHOWN
TO DISCRIMINATE ON ANY OF THESE POSSIBLE BASES AND, IF SO, WHETHER THE
RESULTING CLASSIFICATION MAY BE REGARDED AS SUSPECT. 

[[HC20'(ORIGINAL DOCUMENT PAGE 20)' 

THE PRECEDENTS OF THIS COURT PROVIDE THE PROPER STARTING POINT.  THE
INDIVIDUALS, OR GROUPS OF INDIVIDUALS, WHO CONSTITUTED THE CLASS
DISCRIMINATED AGAINST IN OUR PRIOR CASES SHARED TWO DISTINGUISHING
CHARACTERISTICS:  BECAUSE OF THEIR IMPECUNITY THEY WERE COMPLETELY
UNABLE TO PAY FOR SOME DESIRED BENEFIT, AND AS A CONSEQUENCE, THEY
SUSTAINED AN ABSOLUTE DEPRIVATION OF A MEANINGFUL OPPORTUNITY TO ENJOY
THAT BENEFIT.  IN GRIVVIN V. ILLINOIS, 351 U.S. 12 (1956), AND ITS
PROGENY, /52/  THE COURT INVALIDATED STATE LAWS THAT PREVENTED AN
INDIGENT CRIMINAL DEFENDANT FROM ACQUIRING A TRANSCRIPT, OR AN ADEQUATE
SUBSTITUTE FOR A TRANSCRIPT, FOR USE AT SEVERAL STAGES OF THE TRIAL AND
APPEAL PROCESS.  THE PAYMENT REQUIREMENTS IN EACH CASE WERE FOUND TO
OCCASION DE FACTO DISCRIMINATION AGAINST THOSE WHO, BECAUSE OF THEIR
INDIGENCY, WERE TOTALLY UNABLE TO PAY FOR TRANSCRIPTS. 

[[HC21'(ORIGINAL DOCUMENT PAGE 21)'  AND THE COURT IN EACH CASE
EMPHASIZED THAT NO CONSTITUTIONAL VIOLATION WOULD HAVE BEEN SHOWN IF
THE STATE HAD PROVIDED SOME "ADEQUATE SUBSTITUTE" FOR A FULL
STENOGRAPHIC TRANSCRIPT.  BRITT V. NORTH CAROLINA, 404 U.S. 226, 228
(1971); GARDNER V. CALIFORNIA, 393 U.S. 367 (1969); DRAPER V.
WASHINGTON, 372 U.S. 487 (1963); ESKRIDGE V. WASHINGTON PRISON BOARD,
357 U.S. 214 (1958). 

LIKEWISE, IN DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963), A DECISION
ESTABLISHING AN INDIGENT DEFENDANT'S RIGHT TO COURT-APPOINTED COUNSEL
ON DIRECT APPEAL, THE COURT DEALT ONLY WITH DEFENDANTS WHO COULD NOT
PAY FOR COUNSEL FROM THEIR OWN RESOURCES AND WHO HAD NO OTHER WAY OF
GAINING REPRESENTATION.  DOUGLAS PROVIDES NO RELIEF FOR THOSE ON WHOM
THE BURDENS OF PAYING FOR A CRIMINAL DEFENSE ARE, RELATIVELY SPEAKING,
GREAT BUT NOT INSURMOUNTABLE.  NOR DOES IT DEAL WITH RELATIVE
DIFFERENCES IN THE QUALITY OF COUNSEL ACQUIRED BY THE LESS WEALTHY. 

WILLIAMS V. ILLINOIS, 399 U.S. 235 (1970), AND TATE V. SHORT, 401
U.S. 395 (1971), STRUCK DOWN CRIMINAL PENALTIES THAT SUBJECTED
INDIGENTS TO INCARCERATION SIMPLY BECAUSE OF THEIR INABLILTY TO PAY A
FINE.  AGAIN, THE DISADVANTAGED CLASS WAS COMPOSED ONLY OF PERSONS WHO
WERE TOTALLY UNABLE TO PAY THE DEMANDED SUM. 

[[HC22'(ORIGINAL DOCUMENT PAGE 22)'  THOSE CASES DO NOT TOUCH ON THE
QUESTION WHETHER EQUAL PROTECTION IS DENIED TO PERSONS WITH RELATIVELY
LESS MONEY ON WHOM DESIGNATED FINES IMPOSE HEAVIER BURDENS.  THE COURT
HAS NOT HELD THAT FINES MUST BE STRUCTURED TO REFLECT EACH PERSON'S
ABILITY TO PAY IN ORDER TO AVOID DISPROPORTIONATE BURDENS.  SENTENCING
JUDGES MAY, AND OFTEN DO, CONSIDER THE DEFENDANT'S ABILITY TO PAY, BUT
IN SUCH CIRCUMSTANCES THEY ARE GUIDED BY SOUND JUDICIAL DISCRETION
RATHER THAN BY CONSTITUTIONAL MANDATE. 

FINALLY, IN BULLOCK V. CARTER, 405 U.S. 134 (1972), THE COURT
INVALIDATED THE TEXAS FILING-FEE REQUIREMENT FOR PRIMARY ELECTIONS. 
BOTH OF THE RELEVANT CLASSIFYING FACTS FOUND IN THE PREVIOUS CASES WERE
PRESENT THERE.  THE SIZE OF THE FEE, OFTEN RUNNING INTO THE THOUSANDS
OF DOLLARS AND, IN AT LEAST ONE CASE, AS HIGH AS $8,900, EFFECTIVELY
BARRED ALL POTENTIAL CANDIDATES WHO WERE UNABLE TO PAY THE REQUIRED
FEE.  AS THE SYSTEM PROVIDED "NO REASONABLE ALTERNATIVE MEANS OF ACCESS
TO THE BALLOT" (ID., AT 149), INABILITY TO PAY OCCASIONED AN ABSOLUTE
DENIAL OF A POSITION ON THE PRIMARY BALLOT. 

ONLY APPELLEES' FIRST POSSIBLE BASIS FOR DESCRIBING THE CLASS
DISADVANTAGED BY THE TEXAS SCHOOL-FINANCING SYSTEM--DISCRIMINATION
AGAINST A CLASS OF DEFINABLY "POOR" PERSONS--MIGHT ARGUABLY MEET THE
CRITERIA ESTABLISHED IN THESE PRIOR CASES.  EVEN A CURSORY EXAMINATION,
HOWEVER, DEMONSTRATES THAT NEITHER OF THE TWO DISTINGUISHING
CHARACTERISTICS OF WEALTH CLASSIFICATIONS CAN BE FOUND HERE.  FIRST, IN
SUPPORT OF THEIR CHARGE THAT THE SYSTEM DISCRIMINATES AGAINST THE
"POOR," APPELLEES HAVE MADE NO EFFORT TO DEMONSTRATE THAT IT OPERATES
TO THE PECULIAR DISADVANTAGE OF ANY CLASS FAIRLY DEFINABLE AS INDIGENT,
OR AS COMPOSED OF PERSONS WHO INCOMES ARE BENEATH ANY DESIGNATED
POVERTY LEVEL.  INDEED, THERE IS REASON TO BELIEVE THAT THE POOREST
FAMILIES ARE NOT NECESSARILY CLUSTERED IN THE POOREST PROPERTY
DISTRICTS. 

[[HC23'(ORIGINAL DOCUMENT PAGE 23)'  A RECENT AND EXHAUSTIVE STUDY
OF SCHOOL DISTRICTS IN CONNECTICUT CONCLUDED THAT "(IT IS CLEARLY
INCORRECT . . . TO CONTEND THAT THE 'POOR' LIVE IN 'POOR' DISTRICTS . .
. . THUS, THE MAJOR FACTUAL ASSUMPTION OF SERRANO--THAT THE EDUCATIONAL
FINANCING SYSTEM DISCRIMINATES AGAINST THE 'POOR'--IS SIMPLY FALSE IN
CONNECTICUT."  /53/  DEFINING "POOR" FAMILIES AS THOSE BELOW THE BUREAU
OF THE CENSUS "POVERTY LEVEL,"  /54/  THE CONNECTICUT STUDY FOUND, NOT
SURPRISINGLY, THAT THE POOR WERE CLUSTERED AROUND COMMERCIAL AND
INDUSTRIAL AREAS--THOSE SAME AREAS THAT PROVIDE THE MOST ATTRACTIVE
SOURCES OF PROPERTY TAX INCOME FOR SCHOOL DISTRICTS.  /55/  WHETHER A
SIMILAR PATTERN WOULD BE DISCOVERED IN TEXAS IS NOT KNOWN, BUT THERE IS
NO BASIS ON THE RECORD IN THIS CASE FOR ASSUMING THAT THE POOREST
PEOPLE--DEFINED BY REFERENCE TO ANY LEVEL OF ABSOLUTE IMPECUNITY--ARE
CONCENTRATED IN THE POOREST DISTRICTS. 

SECOND, NEITHER APPELLEES NOR THE DISTRICT COURT ADDRESSED THE FACT
THAT, UNLIKE EACH OF THE FOREGOING CASES, LACK OF PERSONAL RESOURCES
HAS NOT OCCASIONED AN ABSOLUTE DEPRIVATION OF THE DESIRED BENEFIT.  THE
ARGUMENT HERE IS NOT THAT THE CHILDREN IN DISTRICTS HAVING RELATIVELY
LOW ASSESSABLE PROPERTY VALUES ARE RECEIVING NO PUBLIC EDUCATION;
RATHER, IT IS THAT THEY ARE RECEIVING A POORER QUALITY EDUCATION THAN
THAT AVAILABLE TO CHILDREN IN DISTRICTS HAVING MORE ASSESSABLE WEALTH. 
APART FROM THE UNSETTLED AND DISPUTED QUESTION WHETHER THE QUALITY OF
EDUCATION MAY BE DETERMINED BY THE AMOUNT OF MONEY EXPENDED FOR IT,
/56/  A SUFFICIENT ANSWER TO APPELLEES' ARGUMENT IS THAT, AT LEAST
WHERE WEALTH IS INVOLVED, THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE
ABSOLUTE EQUALITY OR PRECISELY EQUAL ADVANTAGES.  /57/  NOR, INDEED, IN
VIEW OF THE INFINITE VARIABLES EFFECTING THE EDUCATIONAL PROCESS, CAN
ANY SYSTEM ASSURE EQUAL QUALITY OF EDUCATION EXCEPT IN THE MOST
RELATIVE SENSE. 

[[HC24'(ORIGINAL DOCUMENT PAGE 24)'  TEXAS ASSERTS THAT THE MINIMUN
FOUNDATION PROGRAM PROVIDES AN "ADEQUATE" EDUCATION FOR ALL CHILDREN IN
THE STATE.  BY PROVIDING 12 YEARS OF FREE PUBLIC-SCHOOL EDUCATION, AND
BY ASSURING TEACHERS, BOOKS, TRANSPORTATION, AND OPERATING FUNDS, THE
TEXAS LEGISLATURE HAS ENDEAVORED TO "GUARANTEE, FOR THE WELFARE OF THE
STATE AS A WHOLE, THAT ALL PEOPLE SHALL HAVE AT LEAST AN ADEQUATE
PROGRAM OF EDUCATION.  THIS WHAT IS MEANT BY 'A MINIMUM FOUNDATION
PROGRAM OF EDUCATION.'"  /58/  THE STATE REPEATEDLY ASSERTED IN ITS
BRIEFS IN THIS COURT THAT IT HAS FULFILLED THIS DESIRE AND THAT IT NOW
ASSURES "EVERY CHILD IN EVERY SCHOOL DISTRICT AN ADEQUATE EDUCATION." 
/59/  NO PROOF WAS OFFERED AT TRIAL PERSUASIVELY DISCREDITING OR
REFUTING THE STATE'S ASSERTION. 

FOR THESE TWO REASONS--THE ABSENCE OF ANY EVIDENCE THAT THE
FINANCING SYSTEM DISCRIMINATES AGAINST ANY DEFINABLE CATEGORY OF
"POOR"PEOPLE OR THAT IT RESULTS IN THE ABSOLUTE DEPRIVATION OF
EDUCATION--THE DISADVANTAGED CLASS IS NOT SUSCEPTIBLE OF IDENTIFICATION
IN TRADITIONAL TERMS.  /60/ 

[[HC25'(ORIGINAL DOCUMENT PAGE 25)' 

AS SUGGESTED ABOVE, APPELLEES AND THE DISTRICT COURT MAY HAVE
EMBRACED A SECOND OR THIRD APPROACH, THE SECOND OF WHICH MIGHT BE
CHARACTERIZED AS A THEORY OF RELATIVE OR COMPARATIVE DISCRIMINATION
BASED ON FAMILY INCOME.  APPELLEES SOUGHT TO PROVE THAT A DIRECT
CORRELATION EXISTS BETWEEN THE WEALTH OF FAMILIES WITHIN EACH DISTRICT
AND THE EXPENDITURES THEREIN FOR EDUCATION.  THAT IS, ALONG A
CONTINUUM, THE POORER THE FAMILY THE LOWER THE DOLLAR AMOUNT OF
EDUCATION RECEIVED BY THE FAMILY'S CHILDREN. 

THE PRINCIPAL EVIDENCE ADDUCED IN SUPPORT OF THIS COMPARATIVE
DISCRIMINATION CLAIM IS AN AFFIDAVIT SUBMITTED BY PROFESSOR JOEL S.
BERKE OF SYRACUSE UNIVERSITY'S EDUCATIONAL FINANCE POLICY INSTITUTE. 
THE DISTRICT COURT, RELYING IN MAJOR PART UPON THIS AFFIDAVIT AND
APPARENTLY ACCEPTING THE SUBSTANCE OF APPELLEES' THEORY, NOTED, FIRST,
A POSITIVE CORRELATION BETWEEN THE WEALTH OF SCHOOL DISTRICTS, MEASURED
IN TERMS OF ASSESSABLE PROPERTY PER PUPIL, AND THEIR LEVELS OF PER
PUPIL EXPENDITURES.  SECOND, THE COURT FOUND A SIMILAR CORRELATION
BETWEEN DISTRICT WEALTH AND THE PERSONAL WEALTH OF ITS RESIDENTS,
MEASURED IN TERMS OF MEDIAN FAMILY INCOME. 

[[HC26'(ORIGINAL DOCUMENT PAGE 26)'  337 F. SUPP., AT 282 N. 3. 

IF, IN FACT, THESE CORRELATIONS COULD BE SUSTAINED, THEN IT MIGHT BE
ARGUED THAT EXPENDITURES ON EDUCATION--EQUATED BY APPELLEES TO THE
QUALITY OF EDUCATION--ARE DEPENDENT ON PERSONAL WEALTH.  APPELLEES'
COMPARATIVE-DISCRIMINATION THEORY WOULD STILL FACE SERIOUS UNANSWERED
QUESTIONS, INCLUDING WHETHER A BARE POSITIVE CORRELATION OR SOME HIGHER
DEGREE OF CORRELATION /61/  IS NECESSARY TO PROVIDE A BASIS FOR
CONCLUDING THAT THE FINANCING SYSTEM IS DESIGNED TO OPERATE TO THE
PECULIAR DISADVANTAGE OF THE COMPARATIVELY POOR, /62/  AND WHETHER A
CLASS OF THIS SIZE AND DIVERSITY COULD EVER CLAIM THE SPECIAL
PROTECTION ACCORDED "SUSPECT" CLASSES.  THESE QUESTIONS NEED NOT BE
ADDRESSED IN THIS CASE, HOWEVER, SINCE APPELLEES' PROOF FAILS TO
SUPPORT THEIR ALLEGATIONS OR THE DISTRICT COURT'S CONCLUSIONS. 
PROFESSOR BERKE'S AFFIDAVIT IS BASED ON A SURVEY OF APPROXIMATELY 10%
OF THE SCHOOL DISTRICTS IN TEXAS.  HIS FINDINGS, PREVIOUSLY SET OUT IN
THE MARGIN, /63/  SHOW ONLY THAT THE WEALTHIEST FEW DISTRICTS IN THE
SAMPLE HAVE THE HIGHEST MEDIAN FAMILY INCOMES AND SPEND THE MOST ON
EDUCATION, AND THAT THE SEVERAL POOREST DISTRICTS HAVE THE LOWEST
FAMILY INCOMES AND DEVOTE THE LEAST AMOUNT OF MONEY TO EDUCATION.  FOR
THE REMAINEDER OF THE DISTRICTS--96 DISTRICTS COMPOSING ALMOST 90% OF
THE SAMPLE--THE CORRELATION IS INVERTED, I. E., THE DISTRICTS THAT
SPEND NEXT TO THE MOST MONEY ON EDUCATION ARE POPULATED BY FAMILIES
HAVING NEXT TO THE LOWEST MEDIAN FAMILY INCOMES WHILE THE DISTRICTS
SPENDING THE LEAST HAVE THE HIGHEST MEDIAN FAMILY INCOMES. 

[[HC27'(ORIGINAL DOCUMENT PAGE 27)'  IT IS EVIDENT THAT, EVEN IF THE
CONCEPTUAL QUESTIONS WERE ANSWERED FAVORABLY TO APPELLEES, NO FACTUAL
BASIS EXISTS UPON WHICH TO FOUND A CLAIM OF COMPARATIVE WEALTH
DISCRIMINATION.  /64/ 

THIS BRINGS US, THEN, TO THE THIRD WAY IN WHICH THE CLASSIFICATION
SCHEME MIGHT BE DEFINED--DISTRICT WEALTH DISCRIMINATION.  SINCE THE
ONLY CORRELATION INDICATED BY THE EVIDENCE IS BETWEEN DISTRICT PROPERTY
WEALTH AND EXPENDITURES, IT MAY BE ARGUED THAT DISCRIMINATION MIGHT BE
FOUND WITHOUT REGARD TO THE INDIVIDUAL INCOME CHARACTERISTICS OF
DISTRICT RESIDENTS.  ASSUMING A PERFECT CORRELATION BETWEEN DISTRICT
PROPERTY WEALTH AND EXPENDITURES FROM TOP TO BOTTOM, THE DISADVANTAGED
CLASS MIGHT BE VIEWED AS ENCOMPASSING EVERY CHILD IN EVERY DISTRICT
EXCEPT THE DISTRICT THAT HAS THE MOST ASSESSABLE WEALTH AND SPENDS THE
MOST ON EDUCATION.  /65/  ALTERNATIVELY, AS SUGGESTED IN MR. JUSTICE
MARSHALL'S DISSENTING OPINION, POST, AT 96, THE CLASS MIGHT BE DEFINED
MORE RESTRICTIVELY TO INCLUDE CHILDREN IN DISTRICTS WITH ASSESSABLE
PROPERTY WHICH FALLS BELOW THE STATEWIDE AVERAGE, OR MEDIAN, OR BELOW
SOME OTHER ARTIFICIALLY DEFINED LEVEL. 

[[HC28'(ORIGINAL DOCUMENT PAGE 28)' 

HOWEVER DESCRIBED, IT IS CLEAR THAT APPELLEES' SUIT ASKS THIS COURT
TO EXTEND ITS MOST EXACTING SCRUTINY TO REVIEW A SYSTEM THAT ALLEGEDLY
DISCRIMINATES AGAINST A LARGE, DIVERSE, AND AMORPHOUS CLASS, UNIFIED
ONLY BY THE COMMON FACTOR OF RESIDENCE IN DISTRICTS THAT HAPPEN TO HAVE
LESS TAXABLE WEALTH THAN OTHER DISTRICTS.  /66/  THE SYSTEM OF ALLEGED
DISCRIMINATION AND THE CLASS IT DEFINES HAVE NONE OF THE TRADITIONAL
INDICIA OF SUSPECTNESS:  THE CLASS IS NOT SADDLED WITH SUCH
DISABILITIES, OR SUBJECTED TO SUCH A HISTORY OF PURPOSEFUL UNEQUAL
TREATMENT, OR RELEGATED TO SUCH A POSITION OF POLITICAL POWERLESSNESS
AS TO COMMAND EXTRAORDINARY PROTECTION FROM THE MAJORITARIAN POLITICAL
PROCESS. 

WE THUS CONCLUDE THAT THE TEXAS SYSTEM DOES NOT OPERATE TO THE
PECULIAR DISADVANTAGE OF ANY SUSPECT CLASS.  BUT IN RECOGNITION OF THE
FACT THAT THIS COURT HAS NEVER HERETOFORE HELD THAT WEALTH
DISCRIMINATION ALONE PROVIDES AN ADEQUATE BASIS FOR INVOKING STRICT
SCRUTINY, APPELLEES HAVE NOT RELIED SOLELY ON THIS CONTENTION.  /67/ 

[[HC29'(ORIGINAL DOCUMENT PAGE 29)'  THEY ALSO ASSERT THAT THE
STATE'S SYSTEM IMPERMISSIBLY INTERFERES WITH THE EXERCISE OF A
"FUNDAMENTAL" RIGHT AND THAT ACCORDINGLY THE PRIOR DECISIONS OF THIS
COURT REQUIRE THE APPLICATION OF THE STRICT STANDARD OF JUDICIAL
REVIEW.  GRAHAM V. RICHARDSON, 403 U.S. 365, 375 - 376 (1971); KRAMER
V. UNION SCHOOL DISTRICT, 395 U.S. 621 (1969); SHAPIRO V. THOMPSON, 394
U.S. 618 (1969).  IT IS THIS QUESTION--WHETHER EDUCATION IS A
FUNDAMENTAL RIGHT, IN THE SENSE THAT IT IS AMONG THE RIGHTS AND
LIBERTIES PROTECTED BY THE CONSTITUTION--WHICH HAS SO CONSUMED THE
ATTENTION OF COURTS AND COMMENTATORS IN RECENT YEARS.  /68/

        B 

IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954), A UNAMIOUS
COURT RECOGNIZED THAT "EDUCATION IS PERHAPS THE MOST IMPORTANT FUNCTION
OF STATE AND LOCAL GOVERNMENTS."  ID., AT 493.  WHAT WAS SAID THERE IN
THE CONTEXT OF RACIAL DISCRIMINATION HAS LOST NONE OF ITS VITALITY WITH
THE PASSAGE OF TIME: 

"COMPULSORY SCHOOL ATTENDANCE LAWS AND THE GREAT EXPENDITURES FOR
EDUCATION BOTH DEMONSTRATE OUR RECOGNITION OF THE IMPORTANCE OF
EDUCATION TO OUR DEMOCRATIC SOCIETY.  IT IS REQUIRED IN THE PERFORMANCE
OF OUR MOST BASIC PUBLIC RESPONSIBILITIES, EVEN SERVICE IN THE ARMED
FORCES. 

[[HC30'(ORIGINAL DOCUMENT PAGE 30)'

  IT IS THE VERY FOUNDATION OF GOOD CITIZENSHIP.  TODAY IT IS A
PRINCIPAL INSTRUMENT IN

  AWAKENING THE CHILD TO CULTURAL VALUES, IN PREPARING HIM FOR
LATER PROFESSIONAL TRAINING, AND

  IN HELPING HIM TO ADJUST NORMALLY TO HIS ENVIRONMENT.  IN THESE
DAYS, IT IS DOUBTFUL THAT ANY

  CHILD MAY REASONABLY BE EXPECTED TO SUCCEED IN LIFE IF HE IS
DENIED THE OPPORTUNITY OF AN

  EDUCATION.  SUCH AN OPPORTUNITY, WHERE THE STATE HAS UNDERTAKEN
TO PROVIDE IT, IS A RIGHT

  WHICH MUST BE MADE AVAILABLE TO ALL ON EQUAL TERMS."  IBID. THIS
THEME, EXPRESSING AN ABIDING RESPECT FOR THE VITAL ROLE OF EDUCATION IN
A FREE SOCIETY, MAY BE FOUND IN NUMEROUS OPINIONS OF JUSTICES OF THIS
COURT WRITING BOTH BEFORE AND AFTER BROWN WAS DECIDED.  WISCONSIN V.
YODER, 406 U.S. 205, 213 (BURGER, C. J.), 237, 238 - 239 (WHITE, J.),
(1972); ABINGTON SCHOOL DIST. V. SCHEMPP, 374 U.S. 203, 230 (1963)
(BRENNAN, J.); MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 212 (1948)
(MR. JUSTICE FRANKFURTER); PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510
(1925); MEYER V. NEBRASKA, 262 U.S. 390 (1923); INTERSTATE CONSOLIDATED
STREET R. CO. V. MASSACHUSETTS, 207 U.S. 79 (1907). 

NOTHING THIS COURT HOLDS TODAY IN ANY WAY DETRACTS FROM OUR HISTORIC
DEDICATION TO PUBLIC EDUCATION.  WE ARE IN COMPLETE AGREEMENT WITH THE
CONCLUSION OF THE THREE-JUDGE PANEL BELOW THAT "THE GRAVE SIGNIFICANCE
OF EDUCATION BOTH TO THE INDIVIDUAL AND TO OUR SOCIETY" CANNOT BE
DOUBTED.  /69/  BUT THE IMPORTANCE OF A SERVICE PERFORMED BY THE STATE
DOES NOT DETERMINE WHETHER IT MUST BE REGARDED AS FUNDAMENTAL FOR
PURPOSES OF EXAMINATION UNDER THE EQUAL PROTECTION CLAUSE.  MR. JUSTICE
HARLAN, DISSENTING FROM THE COURT'S APPLICATION OF STRICT SCRUTINY TO A
LAW IMPINGING UPON THE RIGHT OF INTERSTATE TRAVEL, ADMONISHED THAT
"(VIRTUALLY EVERY STATE STATUTE AFFECTS IMPORTANT RIGHTS."  SHAPIRO V.
THOMPSON, 394 U.S., AT 655, 661. 

[[HC31'(ORIGINAL DOCUMENT PAGE 31)'  IN HIS VIEW, IF THE DEGREE OF
JUDICIAL SCRUTINY OF STATE LEGISLATION FLUCTUATED DEPENDING ON A
MAJORITY'S VIEW OF THE IMPORTANCE OF THE INTEREST AFFECTED, WE WOULD
HAVE GONE "FAR TOWARD MAKING THIS COURT A 'SUPER-LEGISLATURE.'"  IBID.
WE WOULD, INDEED, THEN BE ASSUMING A LEGISLATIVE ROLE AND ONE FOR WHICH
THE COURT LACKS BOTH AUTHORITY AND COMPETENCE.  BUT MR. JUSTICE
STEWART'S RESPONSE IN SHAPIRO TO MR. JUSTICE HARLAN'S CONCERN CORRECTLY
ARTICULATES THE LIMITS OF THE FUNDAMENTAL-RIGHTS RATIONALE EMPLOYED IN
THE COURT'S EQUAL PROTECTION DECISIONS: 

     "THE COURT TODAY DOES NOT 'PICK OUR PARTICULAR HUMAN
ACTIVITIES, CHARACTERIZE THEM AS 

"FUNDAMENTAL," AND GIVE THEM ADDED PROTECTION . . . .'  TO THE
CONTRARY, THE COURT SIMPLY RECOGNIZES, AS IT MUST, AN ESTABLISHED
CONSTITUTIONAL RIGHT, AND GIVES TO THAT RIGHT NO LESS PROTECTION THAN
THE CONSTITUTION ITSELF DEMANDS."  ID., AT 642.  (EMPHASIS IN
ORIGINAL.) 

MR. JUSTICE STEWART'S STATEMENT SERVES TO UNDERLINE WHAT THE OPINION
OF THE COURT IN SHAPIRO MAKES CLEAR.  IN SUBJECTING TO STRICT JUDICIAL
SCRUTINY STATE WELFARE ELIGIBILITY STATUTES THAT IMPOSED A ONE-YEAR
DURATIONAL RESIDENCY REQUIREMENT AS A PRECONDITION TO RECEIVING AFDC
BENEFITS, THE COURT EXPLAINED: 

"(IN MOVING FROM STATE TO STATE . . . APPELLEES WERE EXERCISING A
CONSTITUTIONAL RIGHT, AND ANY CLASSIFICATION WHICH SERVES TO PENALIZE
THE EXERCISE OF THAT RIGHT, UNLESS SHOWN TO BE NECESSARY TO PROMOTE A
COMPELLING GOVERNMENTAL INTEREST, IS UNCONSTITUTIONAL."  ID., AT 634. 
(EMPHASIS IN ORIGINAL.)  THE RIGHT TO INTERSTATE TRAVEL HAD LONG BEEN
RECOGNIZED AS A RIGHT OF CONSTITUTIONAL SIGNIFICANCE, /70/  AND THE
COURT'S DECISION, THEREFORE, DID NOT REQUIRE AN AD HOC DETERMINATION AS
TO THE SOCIAL OR ECONOMIC IMPORTANCE OF THAT RIGHT.  /71/ 

[[HC32'(ORIGINAL DOCUMENT PAGE 32)' 

LINDSEY V. NORMET, 405 U.S. 56 (1972), DECIDED ONLY LAST TERM,
FIRMLY REITERATES THAT SOCIAL IMPORTANCE IS NOT THE CRITICAL
DETERMINANT FOR SUBJECTING STATE LEGISLATION TO STRICT SCRUTINY.  THE
COMPLAINANTS IN THAT CASE, INVOLVING A CHALLENGE TO THE PROCEDURAL
LIMITATIONS IMPOSED ON TENANTS IN SUITS BROUGHT BY LANDLORDS UNDER
OREGON'S FORCIBLE ENTRY AND WRONGFUL DETAINER LAW, URGED THE COURT TO
EXAMINE THE OPERATION OF THE STATUTE UNDER "A MORE STRINGENT STANDARD
THAN MERE RATIONALITY."  ID., AT 73.  THE TENANTS ARGUED THAT THE
STATUTORY LIMITATIONS IMPLICATED "FUNDAMENTAL INTERESTS WHICH ARE
PARTICULARLY IMPORTANT TO THE POOR, SUCH AS THE "'NEED FOR DECENT
SHELTER'" AND THE "'RIGHT TO RETAIN PEACEFUL POSSESSION OF ONE'S
HOME.'"  IBID.  MR. JUSTICE WHITE'S ANALYSIS, IN HIS OPINION FOR THE
COURT, IS INSTRUCTIVE: 

     "WE DO NOT DENIGRATE THE IMPORTANCE OF DECENT, SAFE, AND

  SANITARY HOUSING.  BUT THE CONSTITUTION DOES NOT PROVIDE JUDICIAL

  REMEDIES FOR EVERY SOCIAL AND ECONOMIC ILL.  WE ARE UNABLE TO

PERCEIVE IN THAT DOCUMENT ANY CONSTITUTIONAL GUARANTEE OF ACCESS

  TO DWELLINGS OF A PARTICULAR QUALITY OR ANY RECOGNITION OF THE

  RIGHT OF A TENANT TO OCCUPY THE REAL PROPERTY OF HIS LANDLORD

  BEYOND THE TERM OF HIS LEASE, WITHOUT THE PAYMENT OF RENT . . . .

  ABSENT CONSTITUTIONAL MANDATE, THE ASSURANCE OF ADEQUATE HOUSING

  AND THE DEFINITION OF LANDLORD-TENANT RELATIONSHIPS ARE

  LEGISLATIVE, NOT JUDICIAL, FUNCTIONS." 

[[HC33'(ORIGINAL DOCUMENT PAGE 33)'

ID., AT 74.  (EMPHASIS SUPPLIED.) 

SIMILARLY, IN DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), THE
COURT'S EXPLICIT RECOGNITION OF THE FACT THAT THE "ADMINISTRATION OF
PUBLIC WELFARE ASSISTANCE . . . INVOLVES THE MOST BASIC ECONOMIC NEEDS
OF IMPOVERISHED HUMAN BEINGS," ID., AT 485, /72/  PROVIDED NO BASIS FOR
DEPARTING FROM THE SETTLED MODE OF CONSTITUTIONAL ANALYSIS OF
LEGISLATIVE CLASSIFICATIONS INVOLVING QUESTIONS OF ECONOMIC AND SOCIAL
POLICY.  AS IN THE CASE OF HOUSING, THE CENTRAL IMPORTANCE OF WELFARE
BENEFITS TO THE POOR WAS NOT AN ADEQUATE FOUNDATION FOR REQUIRING THE
STATE TO JUSTIFY ITS LAW BY SHOWING SOME COMPELLING STATE INTEREST. 
SEE ALSO JEFFERSON V. HACKNEY, 406 U.S. 535 (1972); RICHARDSON V.
BELCHER, 404 U.S. 78 (1971). 

THE LESSON OF THESE CASES IN ADDRESSING THE QUESTION NOW BEFORE THE
COURT IS PLAIN.  IT IS NOT THE PROVINCE OF THIS COURT TO CREATE
SUBSTANTIVE CONSTITUTIONAL RIGHTS IN THE NAME OF GUARANTEEING EQUAL
PROTECTION OF THE LAWS.  THUS, THE KEY TO DISCOVERING WHETHER EDUCATION
IS "FUNDAMENTAL" IS NOT TO BE FOUND IN COMPARISONS OF THE RELATIVE
SOCIETAL SIGNIFICANCE OF EDUCATION AS OPPOSED TO SUBSISTENCE OR
HOUSING.  NOR IS IT TO BE FOUND BY WEIGHING WHETHER EDUCATION IS AS
IMPORTANT AS THE RIGHT TO TRAVEL.  RATHER, THE ANSWER LIES IN ASSESSING
WHETHER THERE IS A RIGHT TO EDUCATION EXPLICITLY OR IMPLICITLY
GUARANTEED BY THE CONSTITUTION.  EISENSTADT V. BAIRD, 405 U.S. 438
(1972); /73/  DUNN V. BLUMSTEIN, 405 U.S. 330 (1972); /74/  POLICE
DEPT. OF CHICAGO V. MOSLEY, 408 U.S. 92 (1972); /75/  SKINNER V.
OKLAHOMA, 316 U.S. 535 (1942).  /76/ 

[[HC34'(ORIGINAL DOCUMENT PAGE 34)' 

EDUCATION, OF COURSE, IS NOT AMONG THE RIGHTS AFFORDED EXPLICIT
PROTECTION UNDER OUR FEDERAL CONSTITUTION. 

[[HC35'(ORIGINAL DOCUMENT PAGE 35)'  NOR DO WE FIND ANY BASIS FOR
SAYING IT IS IMPLICITLY SO PROTECTED.  AS WE HAVE SAID, THE UNDISPUTED
IMPORTANCE OF EDUCATION WILL NOT ALONE CAUSE THIS COURT TO DEPART FROM
THE USUAL STANDARD FOR REVIEWING A STATE'S SOCIAL AND ECONOMIC
LEGISLATION.  IT IS APPELLEES' CONTENTION, HOWEVER, THAT EDUCATION IS
DISTINGUISHABLE FROM OTHER SERVICES AND BENEFITS PROVIDED BY THE STATE
BECAUSE IT BEARS A PECULIARLY CLOSE RELATIONSHIP TO OTHER RIGHTS AND
LIBERTIES ACCORDED PROTECTION UNDER THE CONSTITUTION.  SPECIFICALLY,
THEY INSIST THAT EDUCATION IS ITSELF A FUNDAMENTAL PERSONAL RIGHT
BECAUSE IT IS ESSENTIAL TO THE EFFECTIVE EXERCISE OF FIRST AMENDMENT
FREEDOMS AND TO INTELLIGENT UTILIZATION OF THE RIGHT TO VOTE.  IN
ASSERTING A NEXUS BETWEEN SPEECH AND EDUCATION, APPELLEES URGE THAT THE
RIGHT TO SPEAK IS MEANINGLESS UNLESS THE SPEAKER IS CAPABLE OF
ARTICULATING HIS THOUGHTS INTELLIGENTLY AND PERSUASIVELY.  THE
"MARKETPLACE OF IDEAS"  IS AN EMPTY FORUM FOR THOSE LACKING BASIC
COMMUNICATIVE TOOLS.  LIKEWISE, THEY ARGUE THAT THE COROLLARY RIGHT TO
RECEIVE INFORMATION /77/  BECOMES LITTLE MORE THAN A HOLLOW PRIVILEGE
WHEN THE RECIPIENT HAS NOT BEEN TAUGHT TO READ, ASSIMILATE, AND UTILIZE
AVAILABLE KNOWLEDGE. 

A SIMILAR LINE OF REASONING IS PURSUED WITH RESPECT TO THE RIGHT TO
VOTE.  /78/  EXERCISE OF THE FRANCHISE, IT IS CONTENDED, CANNOT BE
DIVORCED FROM THE EDUCATIONAL FOUNDATION OF THE VOTER.  THE ELECTORAL
PROCESS, IF REALITY IS TO CONFORM TO THE DEMOCRATIC IDEAL, DEPENDS ON
AN INFORMED ELECTORATE:  A VOTER CANNOT CAST HIS BALLOT INTELLIGENTLY
UNLESS HIS READING SKILLS AND THOUGHT PROCESSES HAVE BEEN ADEQUATELY
DEVELOPED. 

[[HC36'(ORIGINAL DOCUMENT PAGE 36)' 

WE NEED NOT DISPUTE ANY OF THESE PROPOSITIONS.  THE COURT HAS LONG
AFFORDED ZEALOUS PROTECTION AGAINST UNJUSTIFIABLE GOVERNMENTAL
INTERFERENCE WITH THE INDIVIDUAL'S RIGHTS TO SPEAK AND TO VOTE.  YET WE
HAVE NEVER PRESUMED TO POSSESS EITHER THE ABILITY OR THE AUTHORITY TO
GUARANTEE TO THE CITIZENRY THE MOST EFFECTIVE SPEECH OR THE MOST
INFORMED ELECTORAL CHOICE.  THAT THESE MAY BE DESIRABLE GOALS OF A
SYSTEM OF FREEDOM OF EXPRESSION AND OF A REPRESENTATIVE FORM OF
GOVERNMENT IS NOT TO BE DOUBTED.  /79/  THESE ARE INDEED GOALS TO BE
PURSUED BY A PEOPLE WHOSE THOUGHTS AND BELIEFS ARE FREED FROM THE
GOVERNMENTAL INTERFERENCE.  BUT THEY ARE NOT VALUES TO BE IMPLEMENTED
BY JUDICIAL INTRUSION INTO OTHERWISE LEGITIMATE STATE ACTIVITIES. 
EVEN IF IT WERE CONCEDED THAT SOME IDENTIFIABLE QUANTUM OF EDUCATION IS
A CONSTITUTIONALLY PROTECTED PREREQUISITE TO THE MEANINGFUL EXERCISE OF
EITHER RIGHT, WE HAVE NO INDICATION THAT THE PRESENT LEVELS OF
EDUCATIONAL EXPENDITURE IN TEXAS PROVIDE AN EDUCATION THAT FALLS
SHORT.  WHATEVER MERIT APPELLEES' ARGUMENT MIGHT HAVE IF A STATE'S
FINANCING SYSTEM OCCASIONED AN ABSOLUTE DENIAL OF EDUCATIONAL
OPPORTUNITIES TO ANY OF ITS CHILDREN, THAT ARGUMENT PROVIDES NO BASIS
FOR FINDING AN INTERFERENCE WITH FUNDAMENTAL RIGHTS WHERE ONLY RELATIVE
DIFFERENCES IN SPENDING LEVELS ARE INVOLVED AND WHERE--AS IS TRUE IN
THE PRESENT CASE--NO CHARGE FAIRLY COULD BE MADE THAT THE SYSTEM FAILS
TO PROVIDE EACH CHILD WITH AN OPPORTUNITY TO ACQUIRE THE BASIC MINIMAL
SKILLS NECESSARY FOR THE ENJOYMENT OF THE RIGHTS OF SPEECH AND OF FULL
PARTICIPATION IN THE POLITICAL PROCESS. 

[[HC37'(ORIGINAL DOCUMENT PAGE 37)' 

FURTHERMORE, THE LOGICAL LIMITATIONS ON APPELLEES' NEXUS THEORY ARE
DIFFICULT TO PERCEIVE.  HOW, FOR INSTANCE, IS EDUCATION TO BE
DISTINGUISHED FROM THE SIGNIFICANT PERSONAL INTERESTS IN THE BASICS OF
DECENT FOOD AND SHELTER?  EMPIRICAL EXAMINATION MIGHT WELL BUTTRESS AN
ASSUMPTION THAT THE ILL-FED, ILL-CLOTHED, AND ILL-HOUSED ARE AMONG THE
MOST INEFFECTIVE PARTICIPANTS IN THE POLITICAL PROCESS, AND THAT THEY
DERIVE THE LEAST ENJOYMENT FROM THE BENEFITS OF THE FIRST AMENDMENT. 
/80/  IF SO, APPELLEES' THESIS WOULD CAST SERIOUS DOUBT ON THE
AUTHORITY OF DANDRIDGE V. WILLIAMS, SUPRA, AND LINDSEY V. NORMET,
SUPRA. 

WE HAVE CAREFULLY CONSIDERED EACH OF THE ARGUMENTS SUPPORTIVE OF THE
DISTRICT COURT'S FINDING THAT EDUCATION IS A FUNDAMENTAL RIGHT OR
LIBERTY AND HAVE FOUND THOSE ARGUMENTS UNPERSUASIVE.  IN ONE FURTHER
RESPECT WE FIND THIS A PARTICULARLY INAPPROPRIATE CASE IN WHICH TO
SUBJECT STATE ACTION TO STRICT JUDICIAL SCRUTINY.  THE PRESENT CASE, IN
ANOTHER BASIC SENSE, IS SIGNIFICANTLY DIFFERENT FROM ANY OF THE CASES
IN WHICH THE COURT HAS APPLIED STRICT SCRUTINY TO STATE OR FEDERAL
LEGISLATION TOUCHING UPON CONSTITUTIONALLY PROTECTED RIGHTS.  EACH OF
OUR PRIOR CASES INVOLVED LEGISLATION WHICH "DEPRIVED," "INFRINGED,"  OR
"INTERFERED" WITH THE FREE EXERCISE OF SOME SUCH FUNDAMENTAL PERSONAL
RIGHT OR LIBERTY. 

[[HC38'(ORIGINAL DOCUMENT PAGE 38)'  SEE SKINNER V. OKLAHOMA, SUPRA,
AT 536; SHAPIRO V. THOMPSON, SUPRA, AT 634; DUNN V. BLUMSTEIN, SUPRA,
AT 338 - 343.  A CRITICAL DISTINCTION BETWEEN THOSE CASES AND THE ONE
NOW BEFORE US LIES IN WHAT TEXAS IS ENDEAVORING TO DO WITH RESPECT TO
EDUCATION.  MR. JUSTICE BRENNAN, WRITING FOR THE COURT IN KATZENBACH V.
MORGAN, 384 U.S. 641 (1966), EXPRESSES WELL THE SALIENT POINT:  /81/ 

"THIS IS NOT A COMPLAINT THAT CONGRESS . . . HAS UNCONSTITUTIONALLY
DENIED OR DILUTED ANYONE'S RIGHT TO VOTE BUT RATHER THAT CONGRESS
VIOLATED THE CONSTITUTION BY NOT EXTENDING THE RELIEF EFFECTED (TO
OTHERS SIMILARLY SITUATED) . . . . 

     "(THE FEDERAL LAW IN QUESTION) DOES NOT RESTRICT OR DENY THE

  FRANCHISE BUT IN EFFECT EXTENDS THE FRANCHISE TO PERSONS WHO

  OTHERWISE WOULD BE DENIED IT BY STATE LAW.  . . . WE NEED ONLY

  DECIDE WHETHER THE CHALLENGED LIMITATION ON THE RELIEF EFFECTED .

  . . WAS PERMISSIBLE.  IN DECIDING THAT QUESTION, THE PRINCIPLE

  THAT CALLS FOR THE CLOSEST SCRUTINY OF DISTINCTIONS IN LAWS

DENYING FUNDAMENTAL RIGHTS . . . IS INAPPLICABLE; FOR THE

 DISTINCTION CHALLENGED BY APPELLEES IS PRESENTED ONLY AS A

  LIMITATION ON A REFORM MEASURE AIMED AT ELIMINATING AN EXISTING

  BARRIER TO THE EXERCISE OF THE FRANCHISE.  RATHER, IN DECIDING

  THE CONSTITUTIONAL PROPRIETY OF THE LIMITATIONS IN SUCH A REFORM

  MEASURE WE ARE GUIDED BY THE FAMILIAR PRINCIPLES THAT A 'STATUTE

  IS NOT INVALID UNDER THE CONSTITUTION BECAUSE IT MIGHT HAVE GONE

  FARTHER THAN IT DID,' . . . THAT A LEGISLATURE NEED NOT 'STRIKE

  AT ALL EVILS AT THE SAME TIME," . . . AND THAT 'REFORM MAY TAKE

ONE STEP AT A TIME, ADDRESSING ITSELF TO THE PHRASE OF THE

  PROBLEM WHICH SEEMS MOST ACUTE TO THE LEGISLATIVE MIND . . . .'" 

[[HC39'(ORIGINAL DOCUMENT PAGE 39)'

  ID., AT 656 - 657.  (EMPHASIS IN ORIGINAL.)  THE TEXAS SYSTEM OF
SCHOOL FINANCING IS NOT UNLIKE THE FEDERAL LEGISLATION INVOLVED IN
KATZENBACH IN THIS REGARD.  EVERY STEP LEADING TO THE ESTABLISHMENT OF
THE SYSTEM TEXAS UTILIZES TODAY--INCLUDING THE DECISIONS PERMITTING
LOCALITIES TO TAX AND EXPEND LOCALLY, AND CREATING AND CONTINUOUSLY
EXPANDING STATE AID--WAS IMPLEMENTED IN AN EFFORT TO EXTEND PUBLIC
EDUCATION AND TO IMPROVE ITS QUALITY.  /82/  OF COURSE, EVERY REFORM
THAT BENEFITS SOME MORE THAN OTHERS MAY BE CRITICIZED FOR WHAT IT FAILS
TO ACCOMPLISH.  BUT WE THINK IT PLAIN THAT, IN SUBSTANCE, THE THRUST OF
THE TEXAS SYSTEM IS AFFIRMATIVE AND REFORMATORY AND, THEREFORE, SHOULD
BE SCRUTINIZED UNDER JUDICIAL PRINCIPLES SENSITIVE TO THE NATURE OF THE
STATE'S EFFORTS AND TO THE RIGHTS RESERVED TO THE STATES UNDER THE
CONSTITUTION.  /83/

        C 

IT SHOULD BE CLEAR, FOR THE REASONS STATED ABOVE AND IN ACCORD WITH
THE PRIOR DECISIONS OF THIS COURT, THAT THIS IS NOT A CASE IN WHICH THE
CHALLENGED STATE ACTION MUST BE SUBJECTED TO THE SEARCHING JUDICIAL
SCRUTINY RESERVED FOR LAWS THAT CREATE SUSPECT CLASSIFICATIONS OR
IMPINGE UPON CONSTITUTIONALLY PROTECTED RIGHTS. 

[[HC40'(ORIGINAL DOCUMENT PAGE 40)' 

WE NEED NOT REST OUR DECISION, HOWEVER, SOLELY ON THE
INAPPROPRIATENESS OF THE STRICT-SCRUTINY TEST.  A CENTURY OF SUPREME
COURT ADJUDICATION UNDER THE EQUAL PROTECTION CLAUSE AFFIRMATIVELY
SUPPORTS THE APPLICATION OF THE TRADITIONAL STANDARD OF REVIEW, WHICH
REQUIRES ONLY THAT THE STATE'S SYSTEM BE SHOWN TO BEAR SOME RATIONAL
RELATIONSHIP TO LEGITIMATE STATE PURPOSES.  THIS CASE REPRESENTS FAR
MORE THAN A CHALLENGE TO THE MANNER IN WHICH TEXAS PROVIDES FOR THE
EDUCATION OF ITS CHILDREN.  WE HAVE HERE NOTHING LESS THAN A DIRECT
ATTACK ON THE WAY IN WHICH TEXAS HAS CHOSEN TO RAISE AND DISBURSE STATE
AND LOCAL TAX REVENUES.  WE ARE ASKED TO CONDEMN THE STATE'S JUDGMENT
IN CONFERRING ON POLITICAL SUBDIVISIONS THE POWER TO TAX LOCAL PROPERTY
TO SUPPLY REVENUES FOR LOCAL INTERESTS.  IN SO DOING, APPELLEES WOULD
HAVE THE COURT INTRUDE IN AN AREA IN WHICH IT HAS TRADITIONALLY
DEFERRED TO STATE LEGISLATURES.  /84/  THIS COURT HAS OFTEN ADMONISHED
AGAINST SUCH INTERFERENCES WITH THE STATE'S FISCAL POLICIES UNDER THE
EQUAL PROTECTION CLAUSE: 

     "THE BROAD DISCRETION AS TO CLASSIFICATION POSSESSED BY A

  LEGISLATURE IN THE FIELD OF TAXATION HAS LONG BEEN RECOGNIZED.  .

  . . (THE PASSAGE OF TIME HAS ONLY SERVED TO UNDERSCORE THE WISDOM

  OF THAT RECOGNITION OF THE LARGE AREA OF DISCRETION WHICH IS

  NEEDED BY A LEGISLATURE IN FORMULATING SOUND TAX POLICIES.  . . .

  IT HAS . . . BEEN POINTED OUT THAT IN TAXATION, EVEN MORE THAN IN

 OTHER FIELDS, LEGISLATURES POSSESS THE GREATEST FREEDOM IN

  CLASSIFICATION. 

[[HC41'(ORIGINAL DOCUMENT PAGE 41)'

  SINCE THE MEMBERS OF A LEGISLATURE NECESSARILY ENJOY A
FAMILIARITY WITH LOCAL CONDITIONS WHICH

  THIS COURT CANNOT HAVE, THE PRESUMPTION OF CONSTITUTIONALITY CAN
BE OVERCOME ONLY BY THE MOST

  EXPLICIT DEMONSTRATION THAT A CLASSIFICATION IS HOSTILE AND
OPPRESSIVE DISCRIMINATION AGAINST

  PARTICULAR PERSONS AND CLASSES.  . . ."  MADDEN V. KENTUCKY, 309
U.S. 83, 87 - 88 (1940).  SEE ALSO LEHNHAUSEN V. LAKE SHORE AUTO PARTS
CO., 410 U.S.--(1973); WISCONSIN V. J. C. PENNEY CO., 311 U.S. 435, 445
(1940). 

THUS, WE STAND ON FAMILIAR GROUND WHEN WE CONTINUE TO ACKNOWLEDGE
THAT THE JUSTICES OF THIS COURT LACK BOTH THE EXPERTISE AND THE
FAMILIARITY WITH LOCAL PROBLEMS SO NECESSARY TO THE MAKING OF WISE
DECISIONS WITH RESPECT TO THE RAISING AND DISPOSITION OF PUBLIC
REVENUES.  YET, WE ARE URGED TO DIRECT THE STATES EITHER TO ALTER
DRASTICALLY THE PRESENT SYSTEM OR TO THROW OUT THE PROPERTY TAX
ALTOGETHER IN FAVOR OF SOME OTHER FORM OF TAXATION.  NO SCHEME OF
TAXATION, WHETHER THE TAX IS IMPOSED ON PROPERTY, INCOME, OR PURCHASES
OF GOODS AND SERVICES, HAS YET BEEN DEVISED WHICH IS FREE OF ALL
DISCRIMINATORY IMPACT.  IN SUCH A COMPLEX ARENA IN WHICH NO PERFECT
ALTERNATIVES EXIST, THE COURT DOES WELL NOT TO IMPOSE TOO RIGOROUS A
STANDARD OF SCRUTINY LEST ALL LOCAL FISCAL SCHEMES BECOME SUBJECTS OF
CRITICISM UNDER THE EQUAL PROTECTION CLAUSE.  /85/ 

IN ADDITION TO MATTERS OF FISCAL POLICY, THIS CASE ALSO INVOLVES THE
MOST PERSISTENT AND DIFFICULT QUESTIONS OF EDUCATIONAL POLICY, ANOTHER
AREA IN WHICH THIS COURT'S LACK OF SPECIALIZED KNOWLEDGE AND EXPERIENCE
COUNSELS AGAINST PREMATURE INTERFERENCE WITH THE INFORMED JUDGMENTS
MADE AT THE STATE AND LOCAL LEVELS. 

[[HC42'(ORIGINAL DOCUMENT PAGE 42)'  EDUCATION, PERHAPS EVEN MORE
THAN WELFARE ASSISTANCE, PRESENTS A MYRIAD OF "INTRACTABLE ECONOMIC,
SOCIAL, AND EVEN PHILOSOPHICAL PROBLEMS."  DANDRIDGE V. WILLIAMS, 397
U.S., AT 487.  THE VERY COMPLEXITY OF THE PROBLEMS OF FINANCING AND
MANAGING A STATEWIDE PUBLIC SCHOOL SYSTEM SUGGESTS THAT "THERE WILL BE
MORE THAN ONE CONSTITUTIONALLY PERMISSIBLE METHOD OF SOLVING THEM," AND
THAT, WITHIN THE LIMITS OF RATIONALITY, "THE LEGISLATURE'S EFFORTS TO
TACKLE THE PROBLEMS" SHOULD BE ENTITLED TO RESPECT.  JEFFERSON V.
HACKNEY, 406 U.S., AT 546 - 547.  ON EVEN THE MOST BASIC QUESTIONS IN
THIS AREA THE SCHOLARS AND EDUCATIONAL EXPERTS ARE DIVIDED.  INDEED,
ONE OF THE MAJOR SOURCES OF CONTROVERSY CONCERNS THE EXTENT TO WHICH
THERE IS A DEMONSTRABLE CORRELATION BETWEEN EDUCATIONAL EXPENDITURES
AND THE QUALITY OF EDUCATION /86/  --AN ASSUMED CORRELATION UNDERLYING
VIRTUALLY EVERY LEGAL CONCLUSION DRAWN BY THE DISTRICT COURT IN THIS
CASE.  RELATED TO THE QUESTIONED RELATIONSHIP BETWEEN COST AND QUALITY
IS THE EQUALLY UNSETTLED CONTROVERSY AS TO THE PROPER GOALS OF A SYSTEM
OF PUBLIC EDUCATION.  /87/ 

[[HC43'(ORIGINAL DOCUMENT PAGE 43)'  AND THE QUESTION REGARDING THE
MOST EFFECTIVE RELATIONSHIP BETWEEN STATE BOARDS OF EDUCATION AND LOCAL
SCHOOL BOARDS, IN TERMS OF THEIR RESPECTIVE RESPONSIBILITIES AND
DEGREES OF CONTROL, IS NOW UNDERGOING SEARCHING RE-EXAMINATION.  THE
ULTIMATE WISDOM AS TO THESE AND RELATED PROBLEMS OF EDUCATION IS NOT
LIKELY TO BE DIVINED FOR ALL TIME EVEN BY THE SCHOLARS WHO NOW SO
EARNESTLY DEBATE THE ISSUES.  IN SUCH CIRCUMSTANCES, THE JUDICIARY IS
WELL ADVISED TO REFRAIN FROM IMPOSING ON THE STATES INFLEXIBLE
CONSTITUTIONAL RESTRAINTS THAT COULD CIRCUMSCRIBE OR HANDICAP THE
CONTINUED RESEARCH AND EXPERIMENTATION SO VITAL TO FINDING EVEN PARTIAL
SOLUTIONS TO EDUCATIONAL PROBLEMS AND TO KEEPING ABREAST OF EVER
CHANGING CONDITIONS. 

IT MUST BE REMEMBERED, ALSO, THAT EVERY CLAIM ARISING UNDER THE
EQUAL PROTECTION CLAUSE HAS IMPLICATIONS FOR THE RELATIONSHIP BETWEEN
NATIONAL AND STATE POWER UNDER OUR FEDERAL SYSTEM. 

[[HC44'(ORIGINAL DOCUMENT PAGE 44)'  QUESTIONS OF FEDERALISM ARE
ALWAYS INHERENT IN THE PROCESS OF DETERMINING WHETHER A STATE'S LAWS
ARE TO BE ACCORDED THE TRADITIONAL PRESUMPTION OF CONSTITUTIONALITY, OR
ARE TO BE SUBJECTED INSTEAD TO RIGOROUS JUDICIAL SCRUTINY.  WHILE "(THE
MAINTENANCE OF THE PRINCIPLES OF FEDERALISM IS A FOREMOST CONSIDERATION
IN INTERPRETING ANY OF THE PERTINENT CONSTITUTIONAL PROVISIONS UNDER
WHICH THIS COURT EXAMINES STATE ACTION,"  /88/  IT WOULD BE DIFFICULT
TO IMAGINE A CASE HAVING A GREATER POTENTIAL IMPACT ON OUR FEDERAL
SYSTEM THAN THE ONE NOW BEFORE US, IN WHICH WE ARE URGED TO ABROGATE
SYSTEMS OF FINANCING PUBLIC EDUCATION PRESENTLY IN EXISTENCE IN
VIRTUALLY EVERY STATE. 

THE FOREGOING CONSIDERATIONS BUTTRESS OUR CONCLUSION THAT TEXAS'
SYSTEM OF PUBLIC SCHOOL FINANCE IS AN INAPPROPRIATE CANDIDATE FOR
STRICT JUDICIAL SCRUTINY.  THESE SAME CONSIDERATIONS ARE RELEVANT TO
THE DETERMINATION WHETHER THAT SYSTEM, WITH ITS CONCEDED IMPERFECTIONS,
NEVERTHELESS BEARS SOME RATIONAL RELATIONSHIP TO A LEGITIMATE STATE
PURPOSE.  IT IS TO THIS QUESTION THAT WE NEXT TURN OUR ATTENTION. 

        III 

THE BASIC CONTOURS OF THE TEXAS SCHOOL FINANCE SYSTEM HAVE BEEN
TRACED AT THE OUTSET OF THIS OPINION.  WE WILL NOW DESCRIBE IN MORE
DETAIL THAT SYSTEM AND HOW IT OPERATES, AS THESE FACTS BEAR DIRECTLY
UPON THE DEMANDS OF THE EQUAL PROTECTION CLAUSE. 

APART FROM FEDERAL ASSISTANCE, EACH TEXAS SCHOOL RECEIVES ITS FUNDS
FROM THE STATE AND FROM ITS LOCAL SCHOOL DISTRICT.  ON A STATEWIDE
AVERAGE, A ROUGHLY COMPARABLE AMOUNT OF FUNDS IS DERIVED FROM EACH
SOURCE.  /89/ 

[[HC45'(ORIGINAL DOCUMENT PAGE 45)'  THE STATE'S CONTRIBUTION, UNDER
THE MINIMUM FOUNDATION PROGRAM, WAS DESIGNED TO PROVIDE AN ADEQUATE
MINIMUM EDUCATIONAL OFFERING IN EVERY SCHOOL IN THE STATE.  FUNDS ARE
DISTRIBUTED TO ASSURE THAT THERE WILL BE ONE TEACHER--COMPENSATED AT
THE STATE-SUPPORTED MINIMUM SALARY--FOR EVERY 25 STUDENTS.  /90/  EACH
SCHOOL DISTRICT'S OTHER SUPPORTIVE PERSONNEL ARE PROVIDED FOR:  ONE
PRINCIPAL FOR EVERY 30 TEACHERS; 91 ONE "SPECIAL SERVICE"  TEACHER-
LIBRARIAN, NURSE, DOCTOR, ETC.--FOR EVERY 20 TEACHERS; /92/
SUPERINTENDENTS, VOCATIONAL INSTRUCTORS, COUNSELORS, AND EDUCATORS FOR
EXCEPTIONAL CHILDREN ARE ALSO PROVIDED.  /93/  ADDITIONAL FUNDS ARE
EARMARKED FOR CURRENT OPERATING EXPENSES, FOR STUDENT TRANSPORTATION,
/94/  AND FOR FREE TEXTBOOKS.  /95/ 

THE PROGRAM IS ADMINISTERED BY THE STATE BOARD OF EDUCATION AND BY
THE CENTRAL EDUCATION AGENCY, WHICH ALSO HAVE RESPONSIBILITY FOR SCHOOL
ACCREDITATION /96/  AND FOR MONITORING THE STATUTORY TEACHER
QUALIFICATION STANDARDS.  /97/  AS REFLECTED BY THE 62% INCREASE IN
FUNDS ALLOTTED TO THE EDGEWOOD SCHOOL DISTRICT OVER THE LAST THREE
YEARS, /98/  THE STATE'S FINANCIAL CONTRIBUTION TO EDUCATION IS
STEADILY INCREASING.  NONE OF TEXAS' SCHOOL DISTRICTS, HOWEVER, HAS
BEEN CONTENT TO RELY ALONE ON FUNDS FROM THE FOUNDATION PROGRAM.     BY
VIRTUE OF THE OBLIGATION TO FULFILL ITS LOCAL FUND ASSIGNMENT, EVERY
DISTRICT MUST IMPOSE AN AD VALOREM TAX ON PROPERTY LOCATED WITHIN ITS
BORDERS. 

[[HC46'(ORIGINAL DOCUMENT PAGE 46)'  THE FUND ASSIGNMENT WAS
DESIGNED TO REMAIN SUFFICIENTLY LOW TO ASSURE THAT EACH DISTRICT WOULD
HAVE SOME ABILITY TO PROVIDE A MORE ENRICHED EDUCATIONAL PROGRAM.  /99/
EVERY DISTRICT SUPPLEMENTS ITS FOUNDATION GRANT IN THIS MANNER.  IN
SOME DISTRICTS, THE LOCAL PROPERTY TAX CONTRIBUTION IS INSUBSTANTIAL,
AS IN EDGEWOOD WHERE THE SUPPLEMENT WAS ONLY $26 PER PUPIL IN 1967.  IN
OTHER DISTRICTS, THE LOCAL SHARE MAY FAR EXCEED EVEN THE TOTAL
FOUNDATION GRANT.  IN PART, LOCAL DIFFERENCES ARE ATTRIBUTABLE TO
DIFFERENCES IN THE RATES OF TAXATION OR IN THE DEGREE TO WHICH THE
MARKET VALUE FOR ANY CATEGORY OF PROPERTY VARIES FROM ITS ASSESSED
VALUE.  /100/  THE GREATEST INTERDISTRICT DISPARITIES, HOWEVER, ARE
ATTRIBUTABLE TO DIFFERENCES IN THE AMOUNT OF ASSESSABLE PROPERTY
AVAILABLE WITHIN ANY DISTRICT.  THOSE DISTRICTS THAT HAVE MORE
PROPERTY, OR MORE VALUABLE PROPERTY, HAVE A GREATER CAPABILITY FOR
SUPPLEMENTING STATE FUNDS.  IN LARGE MEASURE, THESE ADDITIONAL LOCAL
REVENUES ARE DEVOTED TO PAYING HIGHER SALARIES TO MORE TEACHERS. 
THEREFORE, THE PRIMARY DISTINGUISHING ATTRIBUTES OF SCHOOLS IN PROPERTY
AFFLUENT DISTRICTS ARE LOWER PUPIL-TEACHER RATIOS AND HIGHER SALARY
SCHEDULES.  /101/ 

THIS, THEN, IS THE BASIC OUTLINE OF THE TEXAS SCHOOL FINANCING
STRUCTURE. 

[[HC47'(ORIGINAL DOCUMENT PAGE 47)'  BECAUSE OF DIFFERENCES IN
EXPENDITURE LEVELS OCCASIONED BY DISPARITIES IN PROPERTY TAX INCOME,
APPELLEES CLAIM THAT CHILDREN IN LESS AFFLUENT DISTRICTS HAVE BEEN MADE
THE SUBJECT OF INVIDIOUS DISCRIMINATION.  THE DISTRICT COURT FOUND THAT
THE STATE HAD FAILED EVEN "TO ESTABLISH A REASONABLE BASIS" FOR A
SYSTEM THAT RESULTS IN DIFFERENT LEVELS OF PER-PUPIL EXPENDITURE.  337
F. SUPP., AT 284.  WE DISAGREE. 

IN ITS RELIANCE ON STATE AS WELL AS LOCAL RESOURCES, THE TEXAS
SYSTEM IS COMPARABLE TO THE SYSTEMS EMPLOYED IN VIRTUALLY EVERY OTHER
STATE.  /102/  THE POWER TO TAX LOCAL PROPERTY FOR EDUCATIONAL PURPOSES
HAS BEEN RECOGNIZED IN TEXAS AT LEAST SINCE 1883.  /103/ 

[[HC48'(ORIGINAL DOCUMENT PAGE 48)'  WHEN THE GROWTH OF COMMERCIAL
AND INDUSTRIAL CENTERS AND ACCOMPANYING SHIFTS IN POPULATION BEGAN TO
CREATE DISPARITIES IN LOCAL RESOURCES, TEXAS UNDERTOOK A PROGRAM
CALLING FOR A CONSIDERABLE INVESTMENT OF STATE FUNDS. 

THE "FOUNDATION GRANT" THEORY UPON WHICH TEXAS LEGISLATORS AND
EDUCATORS BASED THE GILMER-AIKEN BILLS, WAS A PRODUCT OF THE PIONEERING
WORK OF TWO NEW YORK EDUCATIONAL REFORMERS IN THE 1920'S, GEORGE D.
STRAYER AND ROBERT M. HAIG.  /104/  THEIR EFFORTS WERE DEVOTED TO
ESTABLISHING A MEANS OF GUARANTEEING A MINIMUM STATEWIDE EDUCATIONAL
PROGRAM WITHOUT SACRIFICING THE VITAL ELEMENT OF LOCAL PARTICIPATION. 
THE STRAYER-HAIG THESIS REPRESENTED AN ACCOMMODATION BETWEEN THESE TWO
COMPETING FORCES.  AS ARTICULATED BY PROFESSOR COLEMAN: 

     "THE HISTORY OF EDUCATION SINCE THE INDUSTRIAL REVOLUTION
SHOWS

  A CONTINUAL STRUGGLE BETWEEN TWO FORCES:  THE DESIRE BY MEMBERS

  OF SOCIETY TO HAVE EDUCATIONAL OPPORTUNITY FOR ALL CHILDREN, AND

THE DESIRE OF EACH FAMILY TO PROVIDE THE BEST EDUCATION IT CAN

  AFFORD FOR ITS OWN CHILDREN."  /105/ 

[[HC49'(ORIGINAL DOCUMENT PAGE 49)' 

THE TEXAS SYSTEM OF SCHOOL FINANCE IS RESPONSIVE TO THESE TWO
FORCES.  WHILE ASSURING A BASIC EDUCATION FOR EVERY CHILD IN THE STATE,
IT PERMITS AND ENCOURAGES A LARGE MEASURE OF PARTICIPATION IN AND
CONTROL OF EACH DISTRICT'S SCHOOLS AT THE LOCAL LEVEL.  IN AN ERA THAT
HAS WITNESSED A CONSISTENT TREND TOWARD CENTRALIZATION OF THE FUNCTIONS
OF GOVERNMENT, LOCAL SHARING OF RESPONSIBILITY FOR PUBLIC EDUCATION HAS
SURVIVED.  THE MERIT OF LOCAL CONTROL WAS RECOGNIZED LAST TERM IN BOTH
THE MAJORITY AND DISSENTING OPINIONS IN WRIGHT V. COUNCIL OF THE CITY
OF EMPORIA, 407 U.S. 451 (1972).  MR. JUSTICE STEWART STATED THERE THAT
"(DIRECT CONTROL OVER DECISIONS VITALLY AFFECTING THE EDUCATION OF
ONE'S CHILDREN IS A NEED THAT IS STRONGLY FELT IN OUR SOCIETY."  ID.,
AT 469.  THE CHIEF JUSTICE, IN HIS DISSENT, AGREED THAT "(LOCAL CONTROL
IS NOT ONLY VITAL TO CONTINUED PUBLIC SUPPORT OF THE SCHOOLS, BUT IT IS
OF OVERRIDING IMPORTANCE FROM AN EDUCATIONAL STANDPOINT AS WELL."  ID.,
AT 478. 

THE PERSISTENCE OF ATTACHMENT TO GOVERNMENT AT THE LOWEST LEVEL
WHERE EDUCATION IS CONCERNED REFLECTS THE DEPTH OF COMMITMENT OF ITS
SUPPORTERS.  IN PART, LOCAL CONTROL MEANS, AS PROFESSOR COLEMAN
SUGGESTS, THE FREEDOM TO DEVOTE MORE MONEY TO THE EDUCATION OF ONE'S
CHILDREN.  EQUALLY IMPORTANT, HOWEVER, IS THE OPPORTUNITY IT OFFERS FOR
PARTICIPATION IN THE DECISIONMAKING PROCESS THAT DETERMINES HOW THOSE
LOCAL TAX DOLLARS WILL BE SPENT.  EACH LOCALITY IS FREE TO TAILOR LOCAL
PROGRAMS TO LOCAL NEEDS. 

[[HC50'(ORIGINAL DOCUMENT PAGE 50)'  PLURALISM ALSO AFFORDS SOME
OPPORTUNITY FOR EXPERIMENTATION, INNOVATION, AND A HEALTHY COMPETITION
FOR EDUCATIONAL EXCELLENCE.  AN ANALOGY TO THE NATION-STATE
RELATIONSHIP IN OUR FEDERAL SYSTEM SEEMS UNIQUELY APPROPRIATE.  MR.
JUSTICE BRANDEIS IDENTIFIED AS ONE OF THE PECULIAR STRENGTHS OF OUR
FORM OF GOVERNMENT EACH STATE'S FREEDOM TO "SERVE AS A LABORATORY; AND
TRY NOVEL SOCIAL AND ECONOMIC EXPERIMENTS."  /106/  NO AREA OF SOCIAL
CONCERN STANDS TO PROFIT MORE FROM A MULTIPLICITY OF VIEWPOINTS AND
FROM A DIVERSITY OF APPROACHES THAN DOES PUBLIC EDUCATION. 

APPELLEES DO NOT QUESTION THE PROPRIETY OF TEXAS' DEDICATION TO
LOCAL CONTROL OF EDUCATION.  TO THE CONTRARY, THEY ATTACK THE SCHOOL
FINANCING SYSTEM PRECISELY BECAUSE, IN THEIR VIEW, IT DOES NOT PROVIDE
THE SAME LEVEL OF LOCAL CONTROL AND FISCAL FLEXIBILITY IN ALL
DISTRICTS.  APPELLEES SUGGEST THAT LOCAL CONTROL COULD BE PRESERVED AND
PROMOTED UNDER OTHER FINANCING SYSTEMS THAT RESULTED IN MORE EQUALITY
IN EDUCATIONAL EXPENDITURES.  WHILE IT IS NO DOUBT TRUE THAT RELIANCE
ON LOCAL PROPERTY TAXATION FOR SCHOOL REVENUES PROVIDED LESS FREEDOM OF
CHOICE WITH RESPECT TO EXPENDITURES FOR SOME DISTRICTS THAN FOR OTHERS,
/107/  THE EXISTENCE OF "SOME INEQUALITY" IN THE MANNER IN WHICH THE
STATE'S RATIONALE IS ACHIEVED IS NOT ALONE A SUFFICIENT BASIS FOR
STRIKING DOWN THE ENTIRE SYSTEM.  MCGOWAN V. MARYLAND, 366 U.S. 420,
425 - 426 (1961). 

[[HC51'(ORIGINAL DOCUMENT PAGE 51)'  IT MAY NOT BE CONDEMNED SIMPLY
BECAUSE IT IMPERFECTLY EFFECTUATES THE STATE'S GOALS.  DANDRIDGE V.
WILLIAMS, 397 U.S., AT 485.  NOR MUST THE FINANCING SYSTEM FAIL
BECAUSE, AS APPELLEES SUGGEST, OTHER METHODS OF SATISFYING THE STATE'S
INTEREST, WHICH OCCASION "LESS DRASTIC" DISPARITIES IN EXPENDITURES,
MIGHT BE CONCEIVED.  ONLY WHERE STATE ACTION IMPINGES ON THE EXERCISE
OF FUNDAMENTAL CONSTITUTIONAL RIGHTS OR LIBERTIES MUST IT BE FOUND TO
HAVE CHOSEN THE LEAST RESTRICTIVE ALTERNATIVE.  CF. DUNN V. BLUMSTEIN,
405 U.S., AT 343; SHELTON V. TUCKER, 364 U.S. 479, 488 (1960).  IT IS
ALSO WELL TO REMEMBER THAT EVEN THOSE DISTRICTS THAT HAVE REDUCED
ABILITY TO MAKE FREE DECISIONS WITH RESPECT TO HOW MUCH THEY SPEND ON
EDUCATION STILL RETAIN UNDER THE PRESENT SYSTEM A LARGE MEASURE OF
AUTHORITY AS TO HOW AVAILABLE FUNDS WILL BE ALLOCATED.  THEY FURTHER
ENJOY THE POWER TO MAKE NUMEROUS OTHER DECISIONS WITH RESPECT TO THE
OPERATION OF THE SCHOOLS.  /108/  THE PEOPLE OF TEXAS MAY BE JUSTIFIED
IN BELIEVING THAT OTHER SYSTEMS OF SCHOOL FINANCING, WHICH PLACE MORE
OF THE FINANCIAL RESPONSIBILITY IN THE HANDS OF THE STATE, WILL RESULT
IN A COMPARABLE LESSENING OF DESIRED LOCAL AUTONOMY.  THAT IS, THEY MAY
BELIEVE THAT ALONG WITH INCREASED CONTROL OF THE PURSE STRINGS AT THE
STATE LEVEL WILL GO INCREASED CONTROL OVER LOCAL POLICIES.  /109/ 

[[HC52'(ORIGINAL DOCUMENT PAGE 52)' 

APPELLEES FURTHER URGE THAT THE TEXAS SYSTEM IS UNCONSTITUTIONALLY
ARBITRARY BECAUSE IT ALLOWS THE AVAILABILITY OF LOCAL TAXABLE RESOURCES
TO TURN ON "HAPPENSTANCE." 

[[HC53'(ORIGINAL DOCUMENT PAGE 53)'  THEY SEE NO JUSTIFICATION FOR A
SYSTEM THAT ALLOWS, AS THEY CONTEND, THE QUALITY OF EDUCATION TO
FLUCTUATE ON THE BASIS OF THE FORTUITOUS POSITIONING OF THE BOUNDARY
LINES OF POLITICAL SUBDIVISIONS AND THE LOCATION OF VALUABLE COMMERCIAL
AND INDUSTRIAL PROPERTY.  BUT ANY SCHEME OF LOCAL TAXATION--INDEED THE
VERY EXISTENCE OF IDENTIFIABLE LOCAL GOVERNMENTAL UNITS--REQUIRES THE
ESTABLISHMENT OF JURISDICTIONAL BOUNDARIES THAT ARE INEVITABLY
ARBITRARY.  IT IS EQUALLY INEVITABLE THAT SOME LOCALITIES ARE GOING TO
BE BLESSED WITH MORE TAXABLE ASSETS THAN OTHERS.  /110/ 

[[HC54'(ORIGINAL DOCUMENT PAGE 54)'  NOR IS LOCAL WEALTH A STATIC
QUANTITY.  CHANGES IN THE LEVEL OF TAXABLE WEALTH WITHIN ANY DISTRICT
MAY RESULT FROM ANY NUMBER OF EVENTS, SOME OF WHICH LOCAL RESIDENTS CAN
AND DO INFLUENCE.  FOR INSTANCE, COMMERCIAL AND INDUSTRIAL ENTERPRISES
MAY BE ENCOURAGED TO LOCATE WITHIN A DISTRICT BY VARIOUS ACTIONS-
PUBLIC AND PRIVATE. 

MOREOVER, IF LOCAL TAXATION FOR LOCAL EXPENDITURES WERE AN
UNCONSTITUTIONAL METHOD OF PROVIDING FOR EDUCATION THEN IT MIGHT BE AN
EQUALLY IMPERMISSIBLE MEANS OF PROVIDING OTHER NECESSARY SERVICES
CUSTOMARILY FINANCED LARGELY FROM LOCAL PROPERTY TAXES, INCLUDING LOCAL
POLICE AND FIRE PROTECTION, PUBLIC HEALTH AND HOSPITALS, AND PUBLIC
UTILITY FACILITIES OF VARIOUS KINDS.  WE PERCEIVE NO JUSTIFICATION FOR
SUCH A SEVERE DENIGRATION OF LOCAL PROPERTY TAXATION AND CONTROL AS
WOULD FOLLOW FROM APPELLEES' CONTENTIONS.  IT HAS SIMPLY NEVER BEEN
WITHIN THE CONSTITUTIONAL PREROGATIVE OF THIS COURT TO NULLIFY
STATEWIDE MEASURES FOR FINANCING PUBLIC SERVICES MERELY BECAUSE THE
BURDENS OR BENEFITS THEREOF FALL UNEVENLY DEPENDING UPON THE RELATIVE
WEALTH OF THE POLITICAL SUBDIVISIONS IN WHICH CITIZENS LIVE. 

IN SUM, TO THE EXTENT THAT THE TEXAS SYSTEM OF SCHOOL FINANCING
RESULTS IN UNEQUAL EXPENDITURES BETWEEN CHILDREN WHO HAPPEN TO RESIDE
IN DIFFERENT DISTRICTS, WE CANNOT SAY THAT SUCH DISPARITIES ARE THE
PRODUCT OF A SYSTEM THAT IS SO IRRATIONAL AS TO BE INVIDIOUSLY
DISCRIMINATORY.  TEXAS HAS ACKNOWLEDGED ITS SHORTCOMINGS AND HAS
PERSISTENTLY ENDEAVORED--NOT WITHOUT SOME SUCCESS--TO AMELIORATE THE
DIFFERENCES IN LEVELS OF EXPENDITURES WITHOUT SACRIFICING THE BENEFITS
OF LOCAL PARTICIPATION. 

[[HC55'(ORIGINAL DOCUMENT PAGE 55)'  THE TEXAS PLAN IS NOT THE
RESULT OF HURRIED, ILL-CONCEIVED LEGISLATION.  IT CERTAINLY IS NOT THE
PRODUCT OF PURPOSEFUL DISCRIMINATION AGAINST ANY GROUP OR CLASS.  ON
THE CONTRARY, IT IS ROOTED IN DECADES OF EXPERIENCE IN TEXAS AND
ELSEWHERE, AND IN MAJOR PART IS THE PRODUCT OF RESPONSIBLE STUDIES BY
QUALIFIED PEOPLE.  IN GIVING SUBSTANCE TO THE PRESUMPTION OF VALIDITY
TO WHICH THE TEXAS SYSTEM IS ENTITLED, LINDSEY V. NATURAL CARBONIC GAS
CO., 220 U.S. 61, 78 (1911), IT IS IMPORTANT TO REMEMBER THAT AT EVERY
STAGE OF ITS DEVELOPMENT IT HAS CONSTITUTED A "ROUGH ACCOMMODATION"  OF
INTERESTS IN AN EFFORT TO ARRIVE AT PRACTICAL AND WORKABLE SOLUTIONS. 
METROPOLIS THEATRE CO. V. CITY OF CHICAGO, 228 U.S. 61, 69 - 70
(1913).  ONE ALSO MUST REMEMBER THAT THE SYSTEM HERE CHALLENGED IS NOT
PECULIAR TO TEXAS OR TO ANY OTHER STATE.  IN ITS ESSENTIAL
CHARACTERISTICS, THE TEXAS PLAN FOR FINANCING PUBLIC EDUCATION REFLECTS
WHAT MANY EDUCATORS FOR A HALF CENTURY HAVE THOUGHT WAS AN ENLIGHTENED
APPROACH TO A PROBLEM FOR WHICH THERE IS NO PERFECT SOLUTION.  WE ARE
UNWILLING TO ASSUME FOR OURSELVES A LEVEL OF WISDOM SUPERIOR TO THAT OF
LEGISLATORS, SCHOLARS, AND EDUCATIONAL AUTHORITIES IN 50 STATES,
ESPECIALLY WHERE THE ALTERNATIVES PROPOSED ARE ONLY RECENTLY CONCEIVED
AND NOWHERE YET TESTED.  THE CONSTITUTIONAL STANDARD UNDER THE EQUAL
PROTECTION CLAUSE IS WHETHER THE CHALLENGED STATE ACTION RATIONALLY
FURTHERS A LEGITIMATE STATE PURPOSE OR INTEREST.  MCGINNIS V. ROYSTER,
410 U.S. 263, 270 (1973).  WE HOLD THAT THE TEXAS PLAN ABUNDANTLY
SATISFIES THIS STANDARD. 

        IV 

IN LIGHT OF THE CONSIDERABLE ATTENTION THAT HAS FOCUSED ON THE
DISTRICT COURT OPINION IN THIS CASE AND ON ITS CALIFORNIA PREDECESSOR,
SERRANO V. PRIEST, 5 CAL. 3D 584, 487 P. 2D 1241 (1971), A CAUTIONARY
POSTSCRIPT SEEMS APPROPRIATE. 

[[HC56'(ORIGINAL DOCUMENT PAGE 56)'  IT CANNOT BE QUESTIONED THAT
THE CONSTITUTIONAL JUDGMENT REACHED BY THE DISTRICT COURT AND APPROVED
BY OUR DISSENTING BROTHERS TODAY WOULD OCCASION IN TEXAS AND ELSEWHERE
AN UNPRECEDENTED UPHEAVAL IN PUBLIC EDUCATION.  SOME COMMENTATORS HAVE
CONCLUDED THAT, WHATEVER THE CONTOURS OF THE ALTERNATIVE FINANCING
PROGRAMS THAT MIGHT BE DEVISED AND APPROVED, THE RESULT COULD NOT AVOID
BEING A BENEFICIAL ONE.  BUT, JUST AS THERE IS NOTHING SIMPLE ABOUT THE
CONSTITUTIONAL ISSUES INVOLVED IN THESE CASES, THERE IS NOTHING SIMPLE
OR CERTAIN ABOUT PREDICTING THE CONSEQUENCES OF MASSIVE CHANGE IN THE
FINANCING AND CONTROL OF PUBLIC EDUCATION.  THOSE WHO HAVE DEVOTED THE
MOST THOUGHTFUL ATTENTION TO THE PRACTICAL RAMIFICATIONS OF THESE CASES
HAVE FOUND NO CLEAR OR DEPENDABLE ANSWERS AND THEIR SCHOLARSHIP
REFLECTS NO SUCH UNQUALIFIED CONFIDENCE IN THE DESIRABILITY OF
COMPLETELY UPROOTING THE EXISTING SYSTEM. 

THE COMPLEXITY OF THESE PROBLEMS IS DEMONSTRATED BY THE LACK OF
CONSENSUS WITH RESPECT TO WHETHER IT MAY BE SAID WITH ANY ASSURANCE
THAT THE POOR, THE RACIAL MINORITIES, OR THE CHILDREN IN OVERBURDENED
CORE-CITY SCHOOL DISTRICTS WOULD BE BENEFITED BY ABROGATION OF
TRADITIONAL MODES OF FINANCING EDUCATION.  UNLESS THERE IS TO BE A
SUBSTANTIAL INCREASE IN STATE EXPENDITURES ON EDUCATION ACROSS THE
BOARD--AN EVENT THE LIKLIHOOD OF WHICH IS OPEN TO CONSIDERABLE QUESTION
/111/  --THESE GROUPS STAND TO REALIZE GAINS IN TERMS OF INCREASED PER
PUPIL EXPENDITURES ONLY IF THEY RESIDE IN DISTRICTS THAT PRESENTLY
SPEND AT RELATIVELY LOW LEVELS, I. E., IN THOSE DISTRICTS THAT WOULD
BENEFIT FROM THE REDISTRIBUTION OF EXISTING RESOURCES.  YET, RECENT
STUDIES HAVE INDICATED THAT THE POOREST FAMILIES ARE NOT INVARIABLY
CLUSTERED IN THE MOST IMPECUNIOUS SCHOOL DISTRICTS.  /112/ 
[[HC57'(ORIGINAL DOCUMENT PAGE 57)'  NOR DOES IT NOW APPEAR THAT THERE
IS ANY MORE THAN A RANDOM CHANCE THAT RACIAL MINORITIES ARE
CONCENTRATED IN PROPERTY-POOR DISTRICTS.  /113/  ADDITIONALLY, SEVERAL
RESEARCH PROJECTS HAVE CONCLUDED THAT ANY FINANCING ALTERNATIVE
DESIGNED TO ACHIEVE A GREATER EQUALITY OF EXPENDITURES IS LIKELY TO
LEAD TO HIGHER TAXATION AND LOWER EDUCATIONAL EXPENDITURES IN THE MAJOR
URBAN CENTERS, /114/  A RESULT THAT WOULD EXACERBATE RATHER THAN
AMELIORATE EXISTING CONDITIONS IN THOSE AREAS.     THESE PRACTICAL
CONSIDERATIONS, OF COURSE, PLAY NO ROLE IN THE ADJUDICATION OF THE
CONSTITUTIONAL ISSUES PRESENTED HERE. 

[[HC58'(ORIGINAL DOCUMENT PAGE 58)'  BUT THEY SERVE TO HIGHLIGHT THE
WISDOM OF THE TRADITIONAL LIMITATIONS ON THIS COURT'S FUNCTIONS.  THE
CONSIDERATION AND INITIATIONS OF FUNDAMENTAL REFORMS WITH RESPECT TO
STATE TAXATION AND EDUCATION ARE MATTERS RESERVED FOR THE LEGISLATIVE
PROCESSES OF THE VARIOUS STATES, AND WE DO NO VIOLENCE TO THE VALUES OF
FEDERALISM AND SEPARATION OF POWERS BY STAYING OUR HAND.  WE HARDLY
NEED ADD THAT THIS COURT'S ACTION TODAY IS NOT TO BE VIEWED AS PLACING
ITS JUDICIAL IMPRIMATUR ON THE STATUS QUO.  THE NEED IS APPARENT FOR
REFORM IN TAX SYSTEMS WHICH MAY WELL HAVE RELIED TOO LONG AND TOO
HEAVILY ON THE LOCAL PROPERTY TAX.  AND CERTAINLY INNOVATIVE THINKING
AS TO PUBLIC EDUCATION, ITS METHODS, AND ITS FUNDING IS NECESSARY TO
ASSURE BOTH A HIGHER LEVEL OF QUALITY AND GREATER UNIFORMITY OF
OPPORTUNITY.  THESE MATTERS MERIT THE CONTINUED ATTENTION OF THE
SCHOLARS WHO ALREADY HAVE CONTRIBUTED MUCH BY THEIR CHALLENGES.  BUT
THE ULTIMATE SOLUTIONS MUST COME FROM THE LAWMAKERS AND FROM THE
DEMOCRATIC PRESSURES OF THOSE WHO ELECT THEM. 

[[HC59'(ORIGINAL DOCUMENT PAGE 59)'

              REVERSED. 

/1/  NOT ALL OF THE CHILDREN OF THESE COMPLAINANTS ATTEND PUBLIC
SCHOOL.  ONE FAMILY'S CHILDREN ARE ENROLLED IN PRIVATE SCHOOL "BECAUSE
OF THE CONDITION OF THE SCHOOLS IN THE EDGEWOOD INDEPENDENT SCHOOL
DISTRICT."  THIRD AMENDED COMPLAINT, APP. 14. 

/2/  THE SAN ANTONIO INDEPENDENT SCHOOL DISTRICT, WHOSE NAME THIS
CASE STILL BEARS, WAS ONE OF SEVEN SCHOOL DISTRICTS IN THE SAN ANTONIO
METROPOLITAN AREA THAT WERE ORIGINALLY NAMED AS DEFENDANTS.  AFTER A
PRETRIAL CONFERENCE, THE DISTRICT COURT ISSUED AN ORDER DISMISSING THE
SCHOOL DISTRICTS FROM THE CASE.  SUBSEQUENTLY, THE SAN ANTONIO
INDEPENDENT SCHOOL DISTRICT JOINED IN THE PLAINTIFF'S CHALLENGE TO THE
STATE'S SCHOOL FINANCE SYSTEM AND FILED AN AMICUS CURIAE BRIEF IN
SUPPORT OF THAT POSITION IN THIS COURT. 

/3/  A THREE-JUDGE COURT WAS PROPERLY CONVENED AND THERE ARE NO
QUESTIONS AS TO THE DISTRICT COURT'S JURISDICTION OR THE DIRECT
APPEALABILITY OF ITS JUDGMENT.  28 U.S.C. ^^ 2281, 1253. 

/4/  THE TRIAL WAS DELAYED FOR TWO YEARS TO PERMIT EXTENSIVE
PRETRIAL DISCOVERY AND TO ALLOW COMPLETION OF A PENDING TEXAS
LEGISLATIVE INVESTIGATION CONCERNING THE NEED FOR REFORM OF ITS PUBLIC
SCHOOL FINANCE SYSTEM.  337 F. SUPP. 280, 285 N. 11 (WD TEX. 1971). 

/5/  337 F. SUPP. 280.  THE DISTRICT COURT STAYED ITS MANDATE FOR
TWO YEARS TO PROVIDE TEXAS AN OPPORTUNITY TO REMEDY THE INEQUITIES
FOUND IN ITS FINANCING PROGRAM.  THE COURT, HOWEVER, RETAINED
JURISDICTION TO FASHION ITS OWN REMEDIAL ORDER IF THE STATE FAILED TO
OFFER AN ACCEPTABLE PLAN.  ID., AT 286. 

/6/  TEX. CONST., ART. X, ^ 1 (1845):  "A GENERAL DIFFUSION OF
KNOWLEDGE BEING ESSENTIAL TO THE PRESERVATION OF THE RIGHTS AND
LIBERTIES OF THE PEOPLE, IT SHALL BE THE DUTY OF THE LEGISLATURE OF
THIS STATE TO MAKE SUITABLE PROVISION FOR THE SUPPORT AND MAINTENANCE
OF PUBLIC SCHOOLS."  ID., ^ 2:

"THE LEGISLATURE SHALL AS EARLY AS PRACTICABLE ESTABLISH FREE
SCHOOLS THROUGHOUT THE STATE, AND SHALL FURNISH MEANS FOR THEIR
SUPPORT, BY TAXATION ON PROPERTY . . . ." 

/7/  TEX. CONST. OF 1876, ART. 7, ^ 3, AS AMENDED, AUG. 14, 1883. 

/8/  ID., ART. 7, ^^ 3, 4, 5. 

/9/  3 GAMMEL'S LAWS OF TEXAS 1847 - 1854, P. 1461.  SEE TEX.
CONST., ART. 7, ^^ 1, 2, 5 (INTERPRETIVE COMMENTARIES); 1 REPORT OF
GOVERNOR'S COMMITTEE ON PUBLIC SCHOOL EDUCATION, THE CHALLENGE AND THE
CHANCE 27 (1969) (HEREINAFTER GOVERNOR'S COMMITTEE REPORT). 

/10/  TEX. CONST., ART. 7, ^ 5 (SEE ALSO THE INTERPRETIVE
COMMENTARY); 5 GOVERNOR'S COMMITTEE REPORT 11 - 12. 

/11/  THE VARIOUS SOURCES OF REVENUE FOR THE AVAILABLE SCHOOL FUND
ARE CATALOGED IN A REPORT OF THE ADEQUACY OF TEXAS SCHOOLS, PREPARED BY
TEXAS STATE BOARD OF EDUCATION, 7 - 15 (1938) (HEREINAFTER TEXAS STATE
BD. OF EDUC.). 

/12/  TEX. CONST., ART. 7, ^ 3, AS AMENDED, NOV. 5, 1918 (SEE
INTERPRETIVE COMMENTARY). 

/13/  1 GOVERNOR'S COMMITTEE REPORT 35; TEXAS STATE BD. OF EDUC.,
SUPRA, N. 11, AT 5 - 7; J. COONS, W. CLUNE, & S. SUGARMAN, PRIVATE
WEALTH AND PUBLIC EDUCATION 48 - 49 (1970); E. CUBBERLY, SCHOOL FUNDS
AND THEIR APPORTIONMENT 21 - 27 (1905). 

/14/  BY 1940, ONE-HALF OF THE STATE'S POPULATION WAS CLUSTERED IN
ITS METROPOLITAN CENTERS.  1 GOVERNOR'S COMMITTEE REPORT 35. 

/15/  GILMER-AIKIN COMMITTEE, TO HAVE WHAT WE MUST 13 (1948). 

/16/  R. STILL, THE GILMER-AIKIN BILLS 11 - 13 (1950); TEXAS STATE
BD. OF EDUC., SUPRA, N. 11. 

/17/  STILL, SUPRA, N. 16, AT 12.  IT SHOULD BE NOTED THAT DURING
THIS PERIOD THE MEDIAN PER-PUPIL EXPENDITURE FOR ALL SCHOOLS WITH AN
ENROLLMENT OF MORE THAN 200 WAS APPROXIMATELY $50 PER YEAR.  DURING
THIS SAME PERIOD, A SURVEY CONDUCTED BY THE STATE BOARD OF EDUCATION
CONCLUDED THAT "IN TEXAS THE BEST EDUCATIONAL ADVANTAGES OFFERED BY THE
STATE AT PRESENT MAY BE HAD FOR THE MEDIAN COST OF $52.67 PER YEAR PER
PUPIL IN AVERAGE DAILY ATTENDANCE."  TEXAS STATE BD. OF EDUC., SUPRA,
N. 11, AT 56. 

/18/  GENERAL LAWS OF TEXAS, 46TH LEGIS., REG. SESS. 1939, C. 7, PP.
274 - 275 ($22.50 PER STUDENT); GENERAL & SPEC. LAWS OF TEXAS, 48TH
LEGIS., REG. SESS. 1943, C. 161, PP. 262 - 263 ($25 PER STUDENT). 

/19/  GENERAL & SPEC. LAWS OF TEXAS, 49TH LEGIS., REG. SESS. 1945,
C. 52, PP. 74 - 75; STILL, SUPRA, N. 16, AT 12. 

/20/  FOR A COMPLETE HISTORY OF THE ADOPTION IN TEXAS OF A
FOUNDATION PROGRAM, SEE STILL, SUPRA, N. 16.  SEE ALSO 5 GOVERNOR'S
COMMITTEE REPORT 14; TEXAS RESEARCH LEAGUE, PUBLIC SCHOOL FINANCE
PROBLEMS IN TEXAS 9 (INTERIM REPORT 1972). 

/21/  FOR THE 1970 - 1971 SCHOOL YEAR THIS STATE AID PROGRAM
ACCOUNTED FOR 48% OF ALL PUBLIC SCHOOL FUNDS.  LOCAL TAXATION
CONTRIBUTED 41.1% AND 10.9% WAS PROVIDED IN FEDERAL FUNDS.  TEXAS
RESEARCH LEAGUE, SUPRA, N. 20, AT 9. 

/22/  5 GOVERNOR'S COMMITTEE REPORT 44 - 48. 

/23/  AT PRESENT, THERE ARE 1,161 SCHOOL DISTRICTS IN TEXAS.  TEXAS
RESEARCH LEAGUE, SUPRA, N. 20, AT 12. 

/24/  IN 1948, THE GILMER-AIKIN COMMITTEE FOUND THAT SOME SCHOOL
DISTRICTS WERE NOT LEVYING ANY LOCAL TAX TO SUPPORT EDUCATION.  GILMER
AIKEN COMMITTEE, SUPRA, N. 15, AT 16.  THE TEXAS STATE BOARD OF
EDUCATION SURVEY FOUND THAT OVER 400 COMMON AND INDEPENDENT SCHOOL
DISTRICTS WERE LEVYING NO LOCAL PROPERTY TAX IN 1935 - 1936.  TEXAS
STATE BD. OF EDUC., SUPRA N. 11, AT 39 - 42. 

/25/  GILMER-AIKIN COMMITTEE, SUPRA, N. 15, AT 15. 

/26/  1 GOVERNOR'S COMMITTEE REPORT 51 - 53. 

/27/  TEXAS RESEARCH LEAGUE, SUPRA, N. 20, AT 2. 

/28/  IN THE YEARS BETWEEN 1949 AND 1967, THE AVERAGE PER-PUPIL
EXPENDITURE FOR ALL CURRENT OPERATING EXPENSES INCREASED FROM $206 TO
$493.  IN THAT SAME PERIOD, CAPITAL EXPENDITURES INCREASED FROM $44 TO
$102 PER PUPIL.  1 GOVERNOR'S COMMITTEE REPORT 53 - 54. 

/29/  ACTS 1949, 51ST LEGIS., P. 625, C. 334, ART. 4, TEX. EDUC. 
CODE ANN. ^ 16.302 (1972); SEE GENERALLY 3 GOVERNOR'S COMMITTEE REPORT
113 - 146; BERKE, CARNEVALE, MORGAN & WHITE, THE TEXAS SCHOOL FINANCE
CASE:  A WRONG IN SEARCH OF A REMEDY, 1 J. OF L. & EDUC.  659, 681 -
682 (1972). 

/30/  THE FAMILY INCOME FIGURES ARE BASED ON 1960 CENSUS
STATISTICS. 

/31/ THE AVAILABLE SCHOOL FUND, TECHNICALLY, PROVIDES A SECOND
SOURCE OF STATE MONEY.  THAT FUND HAS CONTINUED AS IN YEARS PAST (SEE
TEXT ACCOMPANYING NN. 16 - 19, SUPRA) TO DISTRIBUTE UNIFORM PER-PUPIL
GRANTS TO EVERY DISTRICT IN THE STATE.  IN 1968, THIS FUND ALLOTTED $98
PER PUPIL.  HOWEVER, BECAUSE THE AVAILABLE SCHOOL FUND CONTRIBUTION IS
ALWAYS SUBTRACTED FROM A DISTRICT'S ENTITLEMENT UNDER THE FOUNDATION
PROGRAM, IT PLAYS NO SIGNIFICANT ROLE IN EDUCATIONAL FINANCE TODAY. 

/32/  WHILE FEDERAL ASSISTANCE HAS AN AMELIORATING EFFECT ON THE
DIFFERENCE IN SCHOOL BUDGETS BETWEEN WEALTHY AND POOR DISTRICTS, THE
DISTRICT COURT REJECTED AN ARGUMENT MADE BY THE STATE IN THAT COURT
THAT IT SHOULD CONSIDER THE EFFECT OF THE FEDERAL GRANT IN ASSESSING
THE DISCRIMINATION CLAIM.  337 F. SUPP., AT 284.  THE STATE HAS NOT
RENEWED THAT CONTENTION HERE. 

/33/  A MAP OF BEXAR COUNTY INCLUDED IN THE RECORD SHOWS THAT
EDGEWOOD AND ALAMO HEIGHTS ARE AMONG THE SMALLEST DISTRICTS IN THE
COUNTY AND ARE OF APPROXIMATELY EQUAL SIZE.  YET, AS THE FIGURES ABOVE
INDICATE, EDGEWOOD'S STUDENT POPULATION IS MORE THAN FOUR TIMES THAT OF
ALAMO HEIGHTS.  THIS FACTOR OBVIOUSLY ACCOUNTS FOR A SIGNIFICANT
PERCENTAGE OF THE DIFFERENCES BETWEEN THE TWO DISTRICTS IN PER-PUPIL
PROPERTY VALUES AND EXPENDITURES.  IF ALAMO HEIGHTS HAD AS MANY
STUDENTS TO EDUCATE AS EDGEWOOD DOES (22,000) ITS PER PUPIL ASSESSED
PROPERTY VALUE WOULD BE APPROXIMATELY $11,100 RATHER THAN $49,000, AND
ITS PER-PUPIL EXPENDITURES WOULD THEREFORE HAVE BEEN CONSIDERABLY
LOWER. 

/34/  THE FIGURES QUOTED ABOVE VARY SLIGHTLY FROM THOSE UTILIZED IN
THE DISTRICT COURT OPINION.  337 F. SUPP., AT 282.  THESE TRIVIAL
DIFFERENCES ARE APPARENTLY A PRODUCT OF THAT COURT'S RELIANCE ON
SLIGHTLY DIFFERENT STATISTICAL DATA THAN WE HAVE RELIED UPON. 

/35/  ALTHOUGH THE FOUNDATION PROGRAM HAS MADE SIGNIFICANTLY GREATER
CONTRIBUTIONS TO BOTH SCHOOL DISTRICTS OVER THE LAST SEVERAL YEARS, IT
IS APPARENT THAT ALAMO HEIGHTS HAS ENJOYED A LARGER GAIN.  THE SIZABLE
DIFFERENCE BETWEEN THE ALAMO HEIGHTS AND EDGEWOOD GRANTS IS DUE TO THE
EMPHASIS IN THE STATE'S ALLOCATION FORMULA ON THE GUARANTEED MINIMUM
SALARIES FOR TEACHERS.  HIGHER SALARIES ARE GUARANTEED TO TEACHERS
HAVING MORE YEARS OF EXPERIENCE AND POSSESSING MORE ADVANCED DEGREES. 
THEREFORE, ALAMO HEIGHTS, WHICH HAS A GREATER PERCENTAGE OF EXPERIENCED
PERSONNEL WITH ADVANCED DEGREES, RECEIVES MORE STATE SUPPORT.  IN THIS
REGARD, THE TEXAS PROGRAM IS NOT UNLIKE THAT PRESENTLY IN EXISTENCE IN
A NUMBER OF OTHER STATES.  COONS, CLUNE & SUGARMAN, SUPRA, N. 13, AT 63
- 125.  BECAUSE MORE DOLLARS HAVE BEEN GIVEN TO DISTRICTS THAT ALREADY
SPEND MORE PER PUPIL, SUCH FOUNDATION FORMULAS HAVE BEEN DESCRIBED AS
"ANTI-EQUALIZING."  IBID.  THE FORMULA, HOWEVER, IS ANTI-EQUALIZING
ONLY IF VIEWED IN ABSOLUTE TERMS.  THE PERCENTAGE DISPARITY BETWEEN THE
TWO TEXAS DISTRICTS IS DIMINISHED SUBSTANTIALLY BY STATE AID.  ALAMO
HEIGHTS DERIVED IN 1967 - 1968 ALMOST 13 TIMES AS MUCH MONEY FROM LOCAL
TAXES AS EDGEWOOD DID.  THE STATE AID GRANTS TO EACH DISTRICT IN 1970 -
1971 LOWERED THE RATIO TO APPROXIMATELY TWO TO ONE, I. E., ALAMO
HEIGHTS HAD A LITTLE MORE THAN TWICE AS MUCH MONEY TO SPEND PER PUPIL
FROM ITS COMBINED STATE AND LOCAL RESOURCES. 

/36/  TEXAS RESEARCH LEAGUE, SUPRA, N. 20, AT 13. 

/37/  THE ECONOMIC INDEX, WHICH DETERMINES EACH COUNTY'S SHARE OF
THE TOTAL LOCAL FUND ASSIGNMENT, IS BASED ON A COMPLEX FORMULA
CONCEIVED IN 1949 WHEN THE FOUNDATION PROGRAM WAS INSTITUTED.  SEE
TEXT, SUPRA, AT 9 - 10.  IT HAS FREQUENTLY BEEN SUGGESTED BY TEXAS
RESEARCHERS THAT THE FORMULA BE ALTERED IN SEVERAL RESPECTS TO PROVIDE
A MORE ACCURATE REFLECTION OF LOCAL TAXPAYING ABILITY, ESPECIALLY OF
URBAN SCHOOL DISTRICTS.  5 GOVERNOR'S COMMITTEE REPORT 48; TEXAS
RESEARCH LEAGUE, TEXAS PUBLIC SCHOOL FINANCE: A MAJORITY OF EXCEPTIONS
31 - 32 (2D INTERIM REPORT 1972); BERKE, CARNEVALE, MORGAN & WHITE,
SUPRA, N. 29, AT 680 - 681. 

/38/  THE DISTRICT COURT RELIED ON THE FINDINGS PRESENTED IN AN
AFFIDAVIT SUBMITTED BY PROFESSOR BERKE OF SYRACUSE.  HIS SAMPLING OF
110 TEXAS SCHOOL DISTRICTS DEMONSTRATED A DIRECT CORRELATION BETWEEN
THE AMOUNT OF A DISTRICT'S TAXABLE PROPERTY AND ITS LEVEL OF PER-PUPIL
EXPENDITURE.  BUT HIS STUDY FOUND ONLY A PARTIAL CORRELATION BETWEEN A
DISTRICT'S MEDIAN FAMILY INCOME AND PER-PUPIL EXPENDITURES.  THE STUDY
ALSO SHOWS, IN THE RELATIVELY FEW DISTRICTS AT THE EXTREMES, AN INVERSE
CORRELATION BETWEEN PERCENTAGE OF MINORITIES AND EXPENDITURES.  TABLE
OMITTED ALTHOUGH THE CORRELATIONS WITH RESPECT TO FAMILY INCOME AND
RACE APPEAR ONLY TO EXIST AT THE EXTREMES, AND ALTHOUGH THE AFFIANT'S
METHODOLOGY HAS BEEN QUESTIONED (SEE GOLDSTEIN, INTERDISTRICT
INEQUALITIES IN SCHOOL FINANCING:  A CRITICAL ANALYSIS OF SERRANO V.
PRIEST AND ITS PROGENY, 120 U. PA. L. REV. 504, 523 - 525, NN. 67, 71
(1972)), INSOFAR AS ANY OF THESE CORRELATIONS IS RELEVANT TO THE
CONSTITUTIONAL THESIS PRESENTED IN THIS CASE WE MAY ACCEPT ITS BASIC
THRUST.  BUT SEE INFRA, AT 25 - 27.  FOR A DEFENSE OF THE RELIABILITY
OF THE AFFIDAVIT, SEE BERKE, CARNEVALE, MORGAN & WHITE, SUPRA, N. 29. 

/39/  E. G., POLICE DEPT. OF CHICAGO V. MOSLEY, 408 U.S. 92 (1972);
DUNN V. BLUMSTEIN, 405 U.S. 330 (1972); SHAPIRO V. THOMPSON, 394 U.S.
618 (1969). 

/40/  E. G., GRAHAM V. RICHARDSON, 403 U.S. 365 (1971); LOVING V.
VIRGINIA, 388 U.S. 1 (1967); MCLAUGHLIN V. FLORIDA, 379 U.S. 184
(1964). 

/41/  SEE DUNN V. BLUMSTEIN, SUPRA, AT 343, AND THE CASES COLLECTED
THEREIN. 

/42/  BRIEF FOR APPELLANTS 11. 

/43/  IBID. 

/44/  TR. OF ORAL ARG. 3; REPLY BRIEF FOR APPELLANTS 2. 

/45/  E. G., GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956); DOUGLAS V.
CALIFORNIA, 372 U.S. 353 (1963). 

/46/  HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663 (1966);
MCDONALD V. BOARD OF ELECTION COMM'RS, 394 U.S. 802 (1969); BULLOCK V.
CARTER, 405 U.S. 134 (1972); GOOSBY V. OSSER, 409 U.S. 512 (1973). 
/47/  SEE CASES CITED IN TEXT, INFRA, AT 29 - 30. 

/48/  SERRANO V. PRIEST, 5 CAL. 3D 584, 487 P. 2D 1241 (1971); VAN
DUSARTZ V. HATFIELD, 334 F. SUPP. 870 (MINN. 1971); ROBINSON V. CAHILL,
118 N.J. SUPER.  223, 287 A. 2D 187 (1972); MILLIKEN V. GREEN,--MICH.-
, 203 N.W. 2D 457 (1972), REHEARING GRANTED, JAN. 1973. 

/49/  IN THEIR COMPLAINT, APPELLEES PURPORTED TO REPRESENT A CLASS
COMPOSED OF PERSONS WHO ARE "POOR" AND WHO RESIDE IN SCHOOL DISTRICTS
HAVING A "LOW VALUE OF . . . . PROPERTY."  THIRD AMENDED COMPLAINT,
APP. 15.  YET APPELLEES HAVE NOT DEFINED THE TERM "POOR" WITH REFERENCE
TO ANY ABSOLUTE OR FUNCTIONAL LEVEL OF IMPECUNITY.  SEE TEXT, INFRA, AT
22 - 23.  SEE ALSO BRIEF FOR APPELLEES 1, 3; TR. OF ORAL ARG. 20 - 21. 

/50/  APPELLEES' PROOF AT TRIAL FOCUSED ON COMPARATIVE DIFFERENCES
IN FAMILY INCOMES BETWEEN RESIDENTS OF WEALTHY AND POOR DISTRICTS. 
THEY ENDEAVORED, APPARENTLY, TO SHOW THAT THERE EXISTS A DIRECT
CORRELATION BETWEEN PERSONAL FAMILY INCOME AND EDUCATIONAL
EXPENDITURES.  SEE TEXT, INFRA, AT 25 - 27.  THE DISTRICT COURT MAY
HAVE BEEN RELYING ON THIS NOTION OF RELATIVE DISCRIMINATION BASED ON
FAMILY WEALTH.  CITING APPELLEES'  STATISTICAL PROOF, THE COURT
EMPHASIZED THAT "THOSE DISTRICTS MOST RICH IN PROPERTY ALSO HAVE THE
HIGHEST MEDIAN FAMILY INCOME . . . WHILE THE POOR PROPERTY DISTRICTS
ARE POOR IN INCOME . . . ."  337 F. SUPP., AT 282. 

/51/  AT ORAL ARGUMENT AND IN THEIR BRIEF, APPELLEES SUGGEST THAT
DESCRIPTION OF THE PERSONAL STATUS OF THE RESIDENTS IN DISTRICTS THAT
SPEND LESS ON EDUCATION IS NOT CRITICAL TO THEIR CASE.  IN THEIR VIEW,
THE TEXAS SYSTEM IS IMPERMISSIBLY DISCRIMINATORY EVEN IF RELATIVELY
POOR DISTRICTS DO NOT CONTAIN POOR PEOPLE.  BRIEF FOR APPELLEES 43 -
44; TR. OF ORAL ARG. 20 - 21.  THERE ARE INDICATIONS IN THE DISTRICT
COURT OPINION REPEATEDLY EMPHASIZES THE COMPARATIVE FINANCIAL STATUS OF
DISTRICTS AND EARLY IN THE OPINION IT DESCRIBES APPELLEES'  CLASS AS
BEING COMPOSED OF "ALL . . . CHILDREN THROUGHOUT TEXAS WHO LIVE IN
SCHOOL DISTRICTS WITH LOW PROPERTY VALUATIONS."  337 F. SUPP., AT 281. 

/52/  MAYER V. CITY OF CHICAGO, 404 U.S. 189 (1971); WILLIAMS V.
OKLAHOMA CITY, 395 U.S. 458 (1969); GARDNER V. CALIFORNIA, 393 U.S. 367
(1969); ROBERTS V. LAVALLEE, 389 U.S. 40 (1967); LONG V. DISTRICT COURT
OF IOWA, 385 U.S. 192 (1966); DRAPER V. WASHINGTON, 372 U.S. 487
(1963); ESKRIDGE V. WASHINGTON PRISON BOARD, 357 U.S. 214 (1958). 

/53/  NOTE, A STATISTICAL ANALYSIS OF THE SCHOOL FINANCE DECISIONS:
ON WINNING BATTLES AND LOSING WARS, 81 YALE L. J. 1303, 1328 - 1329
(1972). 

/54/  ID., AT 1324 AND N. 102. 

/55/  ID., AT 1328. 

/56/  EACH OF APPELLEES' POSSIBLE THEORIES OF WEALTH DISCRIMINATION
IS FOUNDED ON THE ASSUMPTION THAT THE QUALITY OF EDUCATION VARIES
DIRECTLY WITH THE AMOUNT OF FUNDS EXPENDED ON IT AND THAT, THEREFORE,
THE DIFFERENCE IN QUALITY BETWEEN TWO SCHOOLS CAN BE DETERMINED
SIMPLISTICALLY BY LOOKING AT THE DIFFERENCE IN PER-PUPIL EXPENDITURES. 
THIS IS A MATTER OF CONSIDERABLE DISPUTE AMONG EDUCATORS AND
COMMENTATORS.  SEE NN. 86 AND 101, INFRA. 

/57/  E. G., BULLOCK V. CARTER, 405 U.S., AT 137, 149; MAYER V. CITY
OF CHICAGO, 404 U.S., AT 194; DRAPER V. WASHINGTON, 372 U.S., AT 495 -
496; DOUGLAS V. CALIFORNIA, 372 U.S., AT 357. 

/58/  GILMER-AIKEN COMMITTEE, SUPRA, N. 15, AT 13.  INDEED, EVEN
THOUGH LOCAL FINDING HAS LONG BEEN A SIGNIFICANT ASPECT OF EDUCATIONAL
FUNDING, THE STATE HAS ALWAYS VIEWED PROVIDING AN ACCEPTABLE EDUCATION
AS ONE OF ITS PRIMARY FUNCTIONS.  SEE TEXAS STATE BD. OF EDUC., SUPRA,
N. 11, AT 1, 7. 

/59/  BRIEF FOR APPELLANTS 35; REPLY BRIEF FOR APPELLANTS 1. 

/60/  AN EDUCATIONAL FINANCING SYSTEM MIGHT BE HYPOTHESIZED,
HOWEVER, IN WHICH THE ANALOGY TO THE WEALTH DISCRIMINATION CASES WOULD
BE CONSIDERABLY CLOSER.  IF ELEMENTARY AND SECONDARY EDUCATION WERE
MADE AVAILABLE BY THE STATE ONLY TO THOSE ABLE TO PAY A TUITION
ASSESSED AGAINST EACH PUPIL, THERE WOULD BE A CLEARLY DEFINED CLASS OF
"POOR" PEOPLE--DEFINABLE IN TERMS OF THEIR INABILITY TO PAY THE
PRESCRIBED SUM--WHO WOULD BE ABSOLUTELY PRECLUDED FROM RECEIVING AN
EDUCATION.  THAT CASE WOULD PRESENT A FAR MORE COMPELLING SET OF
CIRCUMSTANCES FOR JUDICIAL ASSISTANCE THAN THE CASE BEFORE US TODAY. 
AFTER ALL, TEXAS HAS UNDERTAKEN TO DO A GOOD DEAL MORE THAN PROVIDE AN
EDUCATION TO THOSE WHO CAN AFFORD IT.  IT HAS PROVIDED WHAT IT
CONSIDERS TO BE AN ADEQUATE BASE EDUCATION FOR ALL CHILDREN AND HAS
ATTEMPTED, THOUGH IMPERFECTLY, TO AMELIORATE BY STATE FUNDING AND BY
THE LOCAL ASSESSMENT PROGRAM THE DISPARITIES IN LOCAL TAX RESOURCES. 

/61/  ALSO, IT SHOULD BE RECOGNIZED THAT MEDIAN INCOME STATISTICS
MAY NOT DEFINE WITH ANY PRECISION THE STATUS OF INDIVIDUAL FAMILIES
WITHIN ANY GIVEN DISTRICT.  A MORE DEPENDABLE SHOWING OF COMPARATIVE
WEALTH DISCRIMINATION WOULD ALSO EXAMINE FACTORS SUCH AS THE AVERAGE
INCOME, THE MODE, AND THE CONCENTRATION OF POOR FAMILIES IN ANY
DISTRICT. 

/62/  CF. JEFFERSON V. HACKNEY, 406 U.S. 535, 547 - 549 (1972); ELY,
LEGISLATIVE AND ADMINISTRATIVE MOTIVATION AND CONSTITUTIONAL LAW, 79
YALE L. J. 1205, 1258 - 1259 (1970); SIMON, THE SCHOOL FINANCE
DECISIONS:  COLLECTIVE BARGAINING AND FUTURE FINANCE SYSTEMS, 82 YALE
L. J. 409, 439 - 440 (1973). 

/63/  SUPRA, AT 15 N. 38. 

/64/  STUDIES IN OTHER STATES HAVE ALSO QUESTIONED THE EXISTENCE OF
ANY DEPENDABLE CORRELATION BETWEEN A DISTRICT'S WEALTH MEASURED IN
TERMS OF ASSESSABLE PROPERTY AND THE COLLECTIVE WEALTH OF FAMILIES
RESIDING IN THE DISTRICT MEASURED IN TERMS OF MEDIAN FAMILY INCOME. 
RIDENOUR & RIDENOUR, SERRANO V. PRIEST:  WEALTH AND KANSAS SCHOOL
FINANCE, 20 KAN. L. REV. 213, 225 (1972) ("IT CAN BE ARGUED THAT THERE
EXISTS IN KANSAS ALMOST AN INVERSE CORRELATION:  DISTRICTS WITH HIGHEST
INCOME PER PUPIL HAVE LOW ASSESSED VALUE PER PUPIL, AND DISTRICTS WITH
HIGH ASSESSED VALUE PER PUPIL HAVE LOW INCOME PER PUPIL"); DAVIS,
TAXPAYING ABILITY:  A STUDY OF THE RELATIONSHIP BETWEEN WEALTH AND
INCOME IN CALIFORNIA COUNTIES, IN THE CHALLENGE OF CHANGE IN SCHOOL
FINANCE, 10TH NAT. EDUCATIONAL ASSN. CONF. ON SCHOOL FINANCE 199
(1967).  NOTE, 81 YALE L. J., SUPRA, N. 53.  SEE ALSO GOLDSTEIN, SUPRA,
N. 38, AT 522 - 527. 

/65/  INDEED, THIS IS PRECISELY HOW THE PLAINTIFFS IN SERRANO V.
PRIEST DEFINED THE CLASS THEY PURPORTED TO REPRESENT:  "PLAINTIFF
CHILDREN CLAIM TO REPRESENT A CLASS CONSISTING OF ALL PUBLIC SCHOOL
PUPILS IN CALIFORNIA, 'EXCEPT CHILDREN IN THAT SCHOOL DISTRICT . . .
WHICH . . . AFFORDS THE GREATEST EDUCATIONAL OPPORTUNITY OF ALL SCHOOL
DISTRICTS WITHIN CALIFORNIA.'"  5 CAL. 3D, AT 589, 487 P. 2D, AT 1244. 
SEE ALSO VAN DUSARTZ V. HATFIELD, 334 F. SUPP., AT 873. 

/66/  APPELLEES, HOWEVER, HAVE AVOIDED DESCRIBING THE TEXAS SYSTEM
AS ONE RESULTING MERELY IN DISCRIMINATION BETWEEN DISTRICTS PER SE
SINCE THIS COURT HAS NEVER QUESTIONED THE STATE'S POWER TO DRAW
REASONABLE DISTINCTIONS BETWEEN POLITICAL SUBDIVISIONS WITHIN ITS
BORDERS.  GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, 377
U.S. 218, 230 - 231 (1964); MCGOWAN V. MARYLAND, 366 U.S. 420, 427
(1961); SALSBURG V. MARYLAND, 346 U.S. 545, 552 (1954). 

/67/  E. G., HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663
(1966); UNITED STATES V. KRAS, 409 U.S. 434 (1973).  SEE MR. JUSTICE
MARSHALL'S DISSENTING OPINION, POST, AT 121. 

/68/  SEE SERRANO V. PRIEST, SUPRA; VAN DUSARTZ V. HATFIELD, SUPRA;
ROBINSON V. CAHILL, 118 N.J. SUPER.  223, 287 A. 2D 187 (1972); COONS,
CLUNE AND SUGARMAN, SUPRA, N. 13, AT 339 - 393; GOLDSTEIN, SUPRA, N.
38, AT 534 - 541; VIEIRA, UNEQUAL EDUCATIONAL EXPENDITURES:  SOME
MINORITY VIEWS ON SERRANO V. PRIEST, 37 MO. L. REV. 617, 618 - 624
(1972); COMMENT, EDUCATIONAL FINANCING, EQUAL PROTECTION OF THE LAWS,
AND THE SUPREME COURT, 70 MICH. L. REV. 1324, 1335 - 1342 (1972); NOTE,
THE PUBLIC SCHOOL FINANCING CASES:  INTERDISTRICT INEQUALITIES AND
WEALTH DISCRIMINATION, 14 ARIZ. L. REV. 88, 120 - 124 (1972). 

/70/  E. G., UNITED STATES V. GUEST, 383 U.S. 745, 757 - 759 (1966);
OREGON V. MITCHELL, 400 U.S. 112, 229, 237 - 238 (1970) (OPINION OF
BRENNAN, WHITE, AND MARSHALL, JJ.). 

/71/  AFTER DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), THERE COULD
BE NO LINGERING QUESTION ABOUT THE CONSTITUTIONAL FOUNDATION FOR THE
COURT'S HOLDING IN SHAPIRO.  IN DANDRIDGE, THE COURT APPLIED THE
RATIONAL-BASIS TEST IN REVIEWING MARYLAND'S MAXIMUM FAMILY GRANT
PROVISION UNDER ITS AFDC PROGRAM.  A FEDERAL DISTRICT COURT HELD THE
PROVISION UNCONSTITUTIONAL, APPLYING A STRICTER STANDARD OF REVIEW.  IN
THE COURSE OF REVERSING THE LOWER COURT, THE COURT DISTINGUISHED
SHAPIRO PROPERLY ON THE GROUND THAT IN THAT CASE "THE COURT FOUND STATE
INTERFERENCE WITH THE CONSTITUTIONALLY PROTECTED FREEDOM OF INTERSTATE
TRAVEL."  ID., AT 484 N. 16. 

/72/  THE COURT REFUSED TO APPLY THE STRICT-SCRUTINY TEST DESPITE
ITS CONTEMPORANEOUS RECOGNITION IN GOLDBERG V. KELLY, 397 U.S. 254, 264
(1970) THAT "WELFARE PROVIDES THE MEANS TO OBTAIN ESSENTIAL FOOD,
CLOTHING, HOUSING, AND MEDICAL CARE." 

/73/  IN EISENSTADT, THE COURT STRUCK DOWN A MASSACHUSETTS STATUTE
THAT PROHIBITED THE DISTRIBUTION OF CONTRACEPTIVE DEVICES, FINDING THAT
THE LAW FAILED "TO SATISFY EVEN THE MORE LENIENT EQUAL PROTECTION
STANDARD."  ID., AT 447 N. 7.  NEVERTHELESS, IN DICTUM, THE COURT
RECITED THE CORRECT FORM OF EQUAL PROTECTION ANALYSIS:  "(IF WE WERE TO
CONCLUDE THAT THE MASSACHUSETTS STATUTE IMPINGES UPON FUNDAMENTAL
FREEDOMS UNDER GRISWOLD (V. CONNECTICUT, 381 U.S. 479 (1965)), THE
STATUTORY CLASSIFICATION WOULD HAVE TO BE NOT MERELY RATIONALLY RELATED
TO A VALID PUBLIC PURPOSE BUT NECESSARY TO THE ACHIEVEMENT OF A
COMPELLING STATE INTEREST."  IBID.  (EMPHASIS IN ORIGINAL). 

/74/  DUNN FULLY CANVASSES THIS COURT'S VOTING RIGHTS CASES AND
EXPLAINS THAT "THIS COURT HAS MADE CLEAR THAT A CITIZEN HAS A
CONSTITUTIONALLY PROTECTED RIGHT TO PARTICIPATE IN ELECTIONS ON AN
EQUAL BASIS WITH OTHER CITIZENS IN THE JURISDICTION."  ID., AT 336
(EMPHASIS SUPPLIED).  THE CONSTITUTIONAL UNDERPINNINGS OF THE RIGHT TO
EQUAL TREATMENT IN THE VOTING PROCESS CAN NO LONGER BE DOUBTED EVEN
THOUGH, AS THE COURT NOTED IN HARPER V. VIRGINIA BD. OF ELECTIONS, 383
U.S., AT 665, "THE RIGHT TO VOTE IN STATE ELECTIONS IS NOWHERE
EXPRESSLY MENTIONED."  SEE OREGON V. MITCHELL, 400 U.S., AT 135, 138 -
144 (MR. JUSTICE DOUGLAS), 229, 241 - 242 (OPINIONS OF JUSTICES
BRENNAN, WHITE, AND MARSHALL); BULLOCK V. CARTER, 405 U.S., AT 140 -
144; KRAMER V. UNION SCHOOL DISTRICT, 395 U.S. 621, 625 - 630 (1969);
WILLIAMS V. RHODES, 393 U.S. 23, 29, 30 - 31 (1968); REYNOLDS V. SIMS,
377 U.S. 533, 554 - 562 (1964); GRAY V. SANDERS, 372 U.S. 368, 379 -
381 (1963). 

/75/  IN MOSLEY, THE COURT STRUCK DOWN A CHICAGO ANTIPICKETING
ORDINANCE THAT EXEMPTED LABOR PICKETING FROM ITS PROHIBITIONS.  THE
ORDINANCE WAS HELD INVALID UNDER THE EQUAL PROTECTION CLAUSE AFTER
SUBJECTING IT TO CAREFUL SCRUTINY AND FINDING THAT THE ORDINANCE WAS
NOT NARROWLY DRAWN.  THE STRICTER STANDARD OF REVIEW WAS APPROPRIATELY
APPLIED SINCE THE ORDINANCE WAS ONE "AFFECTING FIRST AMENDMENT
INTERESTS."  408 U.S., AT 101. 

/76/  SKINNER APPLIED THE STANDARD OF CLOSE SCRUTINY TO A STATE LAW
PERMITTING FORCED STERILIZATION OF "HABITUAL CRIMINALS."  IMPLICIT IN
THE COURT'S OPINIONS IS THE RECOGNITION THAT THE RIGHT OF PROCREATION
IS AMONG THE RIGHTS OF PERSONAL PRIVACY PROTECTED UNDER THE
CONSTITUTION.  SEE ROE V. WADE, 410 U.S. 113, 152 (1973). 

/77/  SEE, E. G., RED LION BROADCASTING CO. V. FCC, 395 U.S. 367,
389 - 390 (1969); STANLEY V. GEORGIA, 394 U.S. 557, 564 (1969); LAMONT
V. POSTMASTER GENERAL, 381 U.S. 301, 306 - 307 (1965). 

/78/  SINCE THE RIGHT TO VOTE, PER SE, IS NOT A CONSTITUTIONALLY
PROTECTED RIGHT, WE ASSUME THAT APPELLEES' REFERENCES TO THAT RIGHT ARE
SIMPLY SHORTHAND REFERENCES TO THE PROTECTED RIGHT, IMPLICIT IN OUR
CONSTITUTIONAL SYSTEM, TO PARTICIPATE IN STATE ELECTIONS ON AN EQUAL
BASIS WITH OTHER QUALIFIED VOTERS WHENEVER THE STATE HAS ADOPTED AN
ELECTIVE PROCESS FOR DETERMINING WHO WILL REPRESENT ANY SEGMENT OF THE
STATE'S POPULATION.  SEE N. 74, SUPRA. 

/79/  THE STATES HAVE OFTEN PURSUED THEIR ENTIRELY LEGITIMATE
INTEREST IN ASSURING "INTELLIGENT EXERCISE OF THE FRANCHISE,"
KATZENBACH V. MORGAN, 384 U.S. 641, 655 (1966), THROUGH SUCH DEVICES AS
LITERACY TESTS AND AGE RESTRICTIONS ON THE RIGHT TO VOTE.  SEE IBID.;
OREGON V. MITCHELL, 400 U.S. 112 (1970).  AND, WHERE THOSE RESTRICTIONS
HAVE BEEN FOUND TO PROMOTE INTELLIGENT USE OF THE BALLOT WITHOUT
DISCRIMINATING AGAINST THOSE RACIAL AND ETHNIC MINORITIES PREVIOUSLY
DEPRIVED OF AN EQUAL EDUCATIONAL OPPORTUNITY, THIS COURT HAS UPHELD
THEIR USE.  COMPARE LASSITER V. NORTHAMPTON COUNTY BD. OF ELECTIONS,
360 U.S. 45 (1959), WITH OREGON V. MITCHELL, SUPRA, AT 133 (MR. JUSTICE
BLACK), 135, 144 - 147 (MR. JUCTICE DOUGLAS), 152, 216 - 217 (MR.
JUSTICE HARLAN), 229, 231 - 236 (OPINION OF JUSTICES BRENNAN, WHITE,
AND MARSHALL), 281, 282 - 284 (MR. JUSTICE STEWART), AND GASTON COUNTY
V. UNITED STATES, 395 U.S. 285 (1969). 

/80/  SEE SCHOETTLE, THE EQUAL PROTECTION CLAUSE IN PUBLIC
EDUCATION, 71 COL. L. REV. 1355, 1389 - 1390 (1971); VIEIRA, SUPRA, N.
68, AT 622 - 623; COMMENT, TENANT INTEREST REPRESENTATION:  PROPOSAL
FOR A NATIONAL TENANTS' ASSOCIATION, 47 TEX. L. REV. 1160, 1172 - 1173,
N. 61 (1969). 

/81/  KATZENBACH V. MORGAN INVOLVED A CHALLENGE BY REGISTERED VOTERS
IN NEW YORK CITY TO A PROVISION OF THE VOTING RIGHTS ACT OF 1965 THAT
PROHIBITED ENFORCEMENT OF A STATE LAW CALLING FOR ENGLISH LITERACY
TESTS FOR VOTING.  THE LAW WAS SUSPENDED AS TO RESIDENTS FROM PUERTO
RICO WHO HAD COMPLETED AT LEAST SIX YEARS OF EDUCATION AT AN "AMERICAN
FLAG" SCHOOL IN THAT COUNTRY EVEN THOUGH THE LANGUAGE OF INSTRUCTION
WAS OTHER THAN ENGLISH.  THIS COURT UPHELD THE QUESTIONED PROVISION OF
THE 1965 ACT OVER THE CLAIM THAT IT DISCRIMINATED AGAINST THOSE WITH A
SIXTH GRADE EDUCATION OBTAINED IN NON-ENGLISH-SPEAKING SCHOOLS OTHER
THAN THE ONES DESIGNATED BY THE FEDERAL LEGISLATION.     /82/  CF.
MEYER V. NEBRASKA, 262 U.S. 390 (1923); PIERCE V. SOCIETY OF SISTERS,
268 U.S. 510 (1925); HARGRAVE V. KIRK, 313 F. SUPP. 944 (MD FLA. 1970),
VACATED, 401 U.S. 476 (1971). 

/83/  SEE SCHILB V. KUEBEL, 404 U.S. 357 (1971); MCDONALD V. BOARD OF
ELECTION COMM'RS, 394 U.S. 802 (1969). 

/84/  SEE, E. G., BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232
(1890); CARMICHAEL V. SOUTHERN COAL & COKE CO., 301 U.S. 495, 508 - 509
(1937); ALLIED STORES OF OHIO V. BOWERS, 358 U.S. 522 (1959). 

/85/  THOSE WHO URGE THAT THE PRESENT SYSTEM BE INVALIDATED OFFER
LITTLE GUIDANCE AS TO WHAT TYPE OF SCHOOL FINANCING SHOULD REPLACE IT.
THE MOST LIKELY RESULT OF REJECTION OF THE EXISTING SYSTEM WOULD BE
STATEWIDE FINANCING OF ALL PUBLIC EDUCATION WITH FUNDS DERIVED FROM
TAXATION OF PROPERTY OR FROM THE ADOPTION OR EXPANSION OF SALES AND
INCOME TAXES.  SEE SIMON, SUPRA, N. 62.  THE AUTHORS OF PRIVATE WEALTH
AND PUBLIC EDUCATION, SUPRA, N. 13, AT 201 - 242, SUGGEST AN
ALTERNATIVE SCHEME, KNOWN AS "DISTRICT POWER EQUALIZING."  IN SIMPLEST
TERMS, THE STATE WOULD GUARANTEE THAT AT ANY PARTICULAR RATE OF
PROPERTY TAXATION THE DISTRICT WOULD RECEIVE A STATED NUMBER OF DOLLARS
REGARDLESS OF THE DISTRICT'S TAX BASE.  TO FINANCE THE SUBSIDIES TO
"POORER"  DISTRICTS, FUNDS WOULD BE TAKEN AWAY FROM THE "WEALTHIER"
DISTRICTS THAT, BECAUSE OF THEIR HIGHER PROPERTY VALUES, COLLECT MORE
THAN THE STATED AMOUNT AT ANY GIVEN RATE.  THIS IS NOT THE PLACE TO
WEIGH THE ARGUMENTS FOR AND AGAINST "DISTRICT POWER EQUALIZING,"
BEYOND NOTING THAT COMMENTATORS ARE IN DISAGREEMENT AS TO WHETHER IT IS
FEASIBLE, HOW IT WOULD WORK, AND INDEED WHETHER IT WOULD VIOLATE THE
EQUAL PROTECTION THEORY UNDERLYING APPELLEES'  CASE.  PRESIDENT'S
COMMISSION ON SCHOOL FINANCE, SCHOOLS, PEOPLE, & MONEY 32 - 33 (1972);
BATEMAN & BROWN, SOME REFLECTIONS ON SERRANO V. PRIEST, 49 J. URBAN L.
701, 706 - 708 (1972); BREST, BOOK REVIEW, 23 STAN.  L. REV. 591, 594 -
596 (1971); GOLDSTEIN, SUPRA, N. 38, AT 542 - 543; WISE, SCHOOL FINANCE
EQUALIZATION LAWSUITS:  A MODEL LEGISLATIVE RESPONSE, 2 YALE REV. OF L.
& SOC. ACTION 123, 125 (1971); SILARD & WHITE, INTRASTATE INEQUALITIES
IN PUBLIC EDUCATION:  THE CASE FOR JUDICIAL RELIEF UNDER THE EQUAL
PROTECTION CLAUSE, 1970 WIS. L. REV. 7, 29 - 30. 

/86/  THE QUALITY-COST CONTROVERSY HAS RECEIVED CONSIDERABLE
ATTENTION.  AMONG THE NOTABLE AUTHORITIES ON BOTH SIDES ARE THE
FOLLOWING:  C. JENCKS, INEQUALITY (1972); C. SILBERMAN, CRISIS IN THE
CLASSROOM (1970); U.S. OFFICE OF EDUCATION, EQUALITY OF EDUCATIONAL
OPPORTUNITY (1966) (THE COLEMAN REPORT); ON EQUALITY OF EDUCATIONAL
OPPORTUNITY (F. MOSTELLER & D. MOYNIHAN EDS.  1972); J. GUTHRIE, G.
KLEINDORFER, H. LEVIN & R. STOUT, SCHOOLS AND INEQUALITY (1971);
PRESIDENT'S COMMISSION ON SCHOOL FINANCE, SUPRA, N. 85; SWANSON, THE
COST-QUALITY RELATIONSHIP, IN THE CHALLENGE OF CHANGE IN SCHOOL
FINANCE, 10TH NAT. EDUCATIONAL ASSN. CONF. ON SCHOOL FINANCE 151
(1967). 

/87/  SEE THE RESULTS OF THE TEXAS GOVERNOR'S COMMITTEE'S STATEWIDE
SURVEY ON THE GOALS OF EDUCATION IN THAT STATE.  1 GOVERNOR'S COMMITTEE
REPORT 59 - 68.  SEE ALSO GOLDSTEIN, SUPRA, N. 38, AT 519 - 522;
SCHOETTLE, SUPRA, N. 80; AUTHORITIES CITED IN N. 86, SUPRA. 

/88/  ALLIED STORES OF OHIO V. BOWERS, 358 U.S. 522, 530, 532 (1959)
(BRENNAN, J., CONCURRING); KATZENBACH V. MORGAN, 384 U.S., AT 659, 661
(HARLAN, J., DISSENTING). 

/89/  IN 1970 TEXAS EXPENDED APPROXIMATELY 2.1 BILLION DOLLARS FOR
EDUCATION AND A LITTLE OVER ONE BILLION CAME FROM THE MINIMUM
FOUNDATION PROGRAM.  TEXAS RESEARCH LEAGUE, SUPRA, N. 20, AT 2. 

/90/  TEX. EDUC.  CODE ANN. ^ 16.13 (1972). 

/91/  ID., ^ 16.18. 

/92/  ID., ^ 16.15. 

/93/  ID., ^^ 16.16, 16.17, 16.19. 

/94/  ID., ^^ 16.45, 16.51 - 16.63. 

/95/  ID., ^^ 12.01 - 12.04. 

/96/  ID., ^ 11.26 (5). 

/97/  ID., ^ 16.301 ET SEQ. 

/98/  SEE SUPRA, AT 13 - 14. 

/99/  GILMER-AIKIN COMMITTEE, SUPRA, N. 15, AT 15. 

/100/  THERE IS NO UNIFORM STATEWIDE ASSESSMENT PRACTICE IN TEXAS. 
COMMERCIAL PROPERTY, FOR EXAMPLE, MIGHT BE TAXED AT 30% OF MARKET VALUE
IN ONE COUNTY AND AT 50% IN ANOTHER.  5 GOVERNOR'S COMMITTEE REPORT 25
26; BERKE, CARNEVALE, MORGAN & WHITE, SUPRA, N. 29, AT 666 - 667, N.
16. 

/101/  TEXAS RESEARCH LEAGUE, SUPRA, N. 20, AT 18.  TEXAS, IN THIS
REGARD, IS NOT UNLIKE MOST OTHER STATES.  ONE COMMENTATOR HAS OBSERVED
THAT "DISPARITIES IN EXPENDITURES APPEAR TO BE LARGELY EXPLAINED BY
VARIATIONS IN TEACHER SALARIES."  SIMON, SUPRA, N. 62, AT 413. 

AS PREVIOUSLY NOTED, TEXT ACCOMPANYING N. 86, SUPRA, THE EXTENT TO
WHICH THE QUALITY OF EDUCATION VARIES WITH EXPENDITURE PER PUPIL IS
DEBATED INCONCLUSIVELY BY THE MOST THOUGHTFUL STUDENTS OF PUBLIC
EDUCATION.  WHILE ALL WOULD AGREE THAT THERE IS A CORRELATION UP TO THE
POINT OF PROVIDING THE RECOGNIZED ESSENTIALS IN FACILITIES AND ACADEMIC
OPPORTUNITIES, THE ISSUES OF GREATEST DISAGREEMENT INCLUDE THE EFFECT
ON THE QUALITY OF EDUCATION OF PUPIL-TEACHER RATIOS AND OF HIGHER
TEACHER SALARY SCHEDULES.  E. G., OFFICE OF EDUCATION, SUPRA, N. 86, AT
316 - 319.  THE STATE FUNDING IN TEXAS IS DESIGNED TO ASSURE, ON THE
AVERAGE, ONE TEACHER FOR EVERY 25 STUDENTS, WHICH IS CONSIDERED TO BE A
FAVORABLE RATIO BY MOST STANDARDS.  WHETHER THE MINIMUM SALARY OF
$6,000 PER YEAR IS SUFFICIENT IN TEXAS TO ATTRACT QUALIFIED TEACHERS
MAY BE MORE DEBATABLE, DEPENDING IN MAJOR PART UPON THE LOCATION OF THE
SCHOOL DISTRICT.  BUT THERE APPEAR TO BE FEW EMPIRICAL DATA THAT
SUPPORT THE ADVANTAGE OF ANY PARTICULAR PUPIL-TEACHER RATIO OR THAT
DOCUMENT THE EXISTENCE OF A DEPENDABLE CORRELATION BETWEEN THE LEVEL OF
PUBLIC SCHOOL TEACHER'S SALARIES AND THE QUALITY OF THEIR CLASSROOM
INSTRUCTION.  AN INTRACTABLE PROBLEM IN DEALING WITH TEACHERS' SALARIES
IS THE ABSENCE, UP TO THIS TIME, OF SATISFACTORY TECHNIQUES FOR JUDGING
THEIR ABILITY OR PERFORMANCE.  RELATIVELY FEW SCHOOL SYSTEMS HAVE MERIT
PLANS OF ANY KIND, WITH THE RESULT THAT TEACHERS' SALARIES ARE USUALLY
INCREASED ACROSS THE BOARD IN A WAY WHICH TENDS TO REWARD THE LEAST
DESERVING ON THE SAME BASIS AS THE MOST DESERVING.  SALARIES ARE
USUALLY RAISED AUTOMATICALLY ON THE BASIS OF LENGTH OF SERVICE AND
ACCORDING TO PREDETERMINED "STEPS,"  EXTENDING OVER 10 - TO 12 - YEAR
PERIODS. 

/102/  PRESIDENT'S COMMISSION ON SCHOOL FINANCE, SUPRA, N. 85, AT
9.  UNTIL RECENTLY, HAWAII WAS THE ONLY STATE THAT MAINTAINED A PURELY
STATE-FUNDED EDUCATIONAL PROGRAM.  IN 1968, HOWEVER, THAT STATE AMENDED
ITS EDUCATIONAL FINANCE STATUTE TO PERMIT COUNTIES TO COLLECT
ADDITIONAL FUNDS LOCALLY AND SPEND THOSE AMOUNTS ON ITS SCHOOLS.  THE
RATIONALE FOR THAT RECENT LEGISLATIVE CHOICE IS INSTRUCTIVE ON THE
QUESTION BEFORE THE COURT TODAY: 

"UNDER EXISTING LAW, COUNTIES ARE PRECLUDED FROM DOING ANYTHING IN
THIS AREA, EVEN TO SPEND THEIR OWN FUNDS IF THEY SO DESIRE.  THIS
CORRECTIVE LEGISLATION IS URGENTLY NEEDED IN ORDER TO ALLOW COUNTIES TO
GO ABOVE AND BEYOND THE STATE'S STANDARDS AND TO PROVIDE EDUCATIONAL
FACILITIES AS GOOD AS THE PEOPLE OF THE COUNTIES WANT AND ARE WILLING
TO PAY FOR.  ALLOWING LOCAL COMMUNITIES TO GO ABOVE AND BEYOND
ESTABLISHED MINIMUMS TO PROVIDE FOR THEIR PEOPLE ENCOURAGES THE BEST
FEATURES OF DEMOCRATIC GOVERNMENT."  HAW.  SESS. LAWS 1968, ACT 38, ^
1. 

/103/  SEE TEXT ACCOMPANYING N. 7, SUPRA. 

/104/  G. STRAYER & R. HAIG, THE FINANCING OF EDUCATION IN THE STATE
OF NEW YORK (1923).  FOR A THOROUGH ANALYSIS OF THE CONTRIBUTION OF
THESE REFORMERS AND OF THE PRIOR AND SUBSEQUENT HISTORY OF EDUCATIONAL
FINANCE, SEE COONS, CLUNE & SUGARMAN, SUPRA, N. 13, AT 39 - 95. 

/105/  ID., FOREWORD BY JAMES S. COLEMAN, P. VII. 

/106/  NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262, 280, 311 (1932)
(BRANDEIS, J., DISSENTING). 

/107/  MR. JUSTICE WHITE SUGGESTS IN HIS DISSENT THAT THE TEXAS
SYSTEM VIOLATES THE EQUAL PROTECTION CLAUSE BECAUSE THE MEANS IT HAS
SELECTED TO EFFECTUATE ITS INTEREST IN LOCAL AUTONOMY FAIL TO GUARANTEE
COMPLETE FREEDOM OF CHOICE TO EVERY DISTRICT.  HE PLACES SPECIAL
EMPHASIS ON THE STATUTORY PROVISION THAT ESTABLISHES A MAXIMUM RATE OF
$1.50 PER $100 VALUATION AT WHICH A LOCAL SCHOOL DISTRICT MAY TAX FOR
SCHOOL MAINTENANCE.  TEX. EDUC.  CODE ANN. ^ 20.04 (D) (1972).  THE
MAINTENANCE RATE IN EDGEWOOD WHEN THIS CASE WAS LITIGATED IN THE
DISTRICT COURT WAS $.55 PER $100, BARELY ONE-THIRD OF THE ALLOWABLE
RATE.  (THE TAX RATE OF $1.05 PER $100, SEE SUPRA, AT 12, IS THE
EQUALIZED RATE FOR MAINTENANCE AND FOR THE RETIREMENT OF BONDS.) 
APPELLEES DO NOT CLAIM THAT THE CEILING PRESENTLY BARS DESIRED TAX
INCREASES IN EDGEWOOD OR IN ANY OTHER TEXAS DISTRICT.  THEREFORE, THE
CONSTITUTIONALITY OF THAT STATUTORY PROVISION IS NOT BEFORE US AND MUST
AWAIT LITIGATION IN A CASE IN WHICH IT IS PROPERLY PRESENTED.  CF.
HARGRAVE V. KIRK, 313 F. SUPP. 944 (MD FLA. 1970), VACATED, 401 U.S.
476 (1971). 

/108/  MR. JUSTICE MARSHALL STATES IN HIS DISSENTING OPINION THAT
THE STATE'S ASSERTED INTEREST IN LOCAL CONTROLS IS A "MERE SHAM," POST,
AT 130, AND THAT IT HAS BEEN OFFERED NOT AS A LEGITIMATE JUSTIFICATION
BUT "AS AN EXCUSE . . . FOR INTERDISTRICT INEQUALITY."  ID., AT 126. 
IN ADDITION TO ASSERTING THAT LOCAL CONTROL WOULD BE PRESERVED AND
POSSIBLY BETTER SERVED UNDER OTHER SYSTEMS--A CONSIDERATION THAT WE
FIND IRRELEVANT FOR THE PURPOSE OF DECIDING WHETHER THE SYSTEM MAY BE
SAID TO BE SUPPORTED BY A LEGITIMATE AND REASONABLE BASIS--THE DISSENT
SUGGESTS THAT TEXAS' LACK OF GOOD FAITH MAY BE DEMONSTRATED BY
EXAMINING THE EXTENT TO WHICH THE STATE ALREADY MAINTAINS CONSIDERABLE
CONTROL.  THE STATE, WE ARE TOLD, REGULATES "THE MOST MINUTE DETAILS OF
LOCAL PUBLIC EDUCATION," IBID., INCLUDING TEXTBOOK SELECTION, TEACHER
QUALIFICATIONS, AND THE LENGTH OF THE SCHOOL DAY.  THIS ASSERTION, THAT
GENUINE LOCAL CONTROL DOES NOT EXIST IN TEXAS, SIMPLY CANNOT BE
SUPPORTED.  IT IS ABUNDANTLY REFUTED BY THE ELABORATE STATUTORY
DIVISION OF RESPONSIBILITIES SET OUT IN THE TEXAS EDUCATION CODE. 
ALTHOUGH POLICY DECISIONMAKING AND SUPERVISION IN CERTAIN AREAS ARE
RESERVED TO THE STATE, THE DAY-TO-DAY AUTHORITY OVER THE "MANAGEMENT
AND CONTROL" OF ALL PUBLIC ELEMENTARY AND SECONDARY SCHOOLS IS SQUARELY
PLACED ON THE LOCAL SCHOOL BOARDS.  TEX. EDUC.  CODE ANN. ^^ 17.01,
23.26 (1972).  AMONG THE INNUMERABLE SPECIFIC POWERS OF THE LOCAL
SCHOOL AUTHORITIES ARE THE FOLLOWING:  THE POWER OF EMINENT DOMAIN TO
ACQUIRE LAND FOR THE CONSTRUCTION OF SCHOOL FACILITIES, ID., ^^ 17.26,
23.26; THE POWER TO HIRE AND TERMINATE TEACHERS AND OTHER PERSONNEL,
ID., ^^ 13.101 - 13.103; THE POWER TO DESIGNATE CONDITIONS OF TEACHER
EMPLOYMENT AND TO ESTABLISH CERTAIN STANDARDS OF EDUCATIONAL POLICY,
ID., ^ 13.901; THE POWER TO MAINTAIN ORDER AND DISCIPLINE, ID., ^
21.305, INCLUDING THE PREROGATIVE TO SUSPEND STUDENTS FOR DISCIPLINARY
REASONS, ID., ^ 21.301; THE POWER TO DECIDE WHETHER TO OFFER A
KINDERGARTEN PROGRAM, ID., ^^ 21.131 - 21.135, OR A VOCATIONAL TRAINING
PROGRAM, ID., ^ 21.111, OR A PROGRAM OF SPECIAL EDUCATION FOR THE
HANDICAPPED, ID., ^ 11.16; THE POWER TO CONTROL THE ASSIGNMENT AND
TRANSFER OF STUDENTS, ID., ^^ 21.074 - 21.080; AND THE POWER TO OPERATE
AND MAINTAIN A SCHOOL BUS PROGRAM, ID., ^ 16.52.  SEE ALSO PERVIS V.
LAMARQUE IND. SCHOOL DIST., 328 F. SUPP. 638, 642 - 643 (SD TEX. 1971),
REVERSED, 466 F. 2D 1054 (CA5 1972); NICHOLS V. ALDINE IND. SCHOOL
DIST., 356 S.W. 2D 182 (TEX. CIV. APP. 1962).  LOCAL SCHOOL BOARDS ALSO
DETERMINE ATTENDANCE ZONES, LOCATION OF NEW SCHOOLS, CLOSING OF OLD
ONES, SCHOOL ATTENDANCE HOURS (WITHIN LIMITS), GRADING AND PROMOTION
POLICIES SUBJECT TO GENERAL GUIDELINES, RECREATIONAL AND ATHLETIC
POLICIES, AND A MYRIAD OF OTHER MATTERS IN THE ROUTINE OF SCHOOL
ADMINISTRATION.  IT CANNOT BE SERIOUSLY DOUBTED THAT IN TEXAS EDUCATION
REMAINS LARGELY A LOCAL FUNCTION, AND THAT THE PREPONDERATING BULK OF
ALL DECISIONS AFFECTING THE SCHOOLS IS MADE AND EXECUTED AT THE LOCAL
LEVEL, GUARANTEEING THE GREATEST PARTICIPATION BY THOSE MOST DIRECTLY
CONCERNED. 

/109/  THIS THEME--THAT GREATER STATE CONTROL OVER FUNDING WILL LEAD
TO GREATER STATE POWER WITH RESPECT TO LOCAL EDUCATIONAL PROGRAMS AND
POLICIES--IS A RECURRENT ONE IN THE LITERATURE ON FINANCING PUBLIC
EDUCATION.  PROFESSOR SIMON, IN HIS THOUGHTFUL ANALYSIS OF THE
POLITICAL RAMIFICATIONS OF THIS CASE, STATES THAT ONE OF THE MOST
LIKELY CONSEQUENCES OF THE DISTRICT COURT'S DECISION WOULD BE AN
INCREASE IN THE CENTRALIZATION OF SCHOOL FINANCE AND AN INCREASE IN THE
EXTENT OF COLLECTIVE BARGAINING BY TEACHER UNIONS AT THE STATE LEVEL. 
HE SUGGESTS THAT THE SUBJECTS FOR BARGAINING MAY INCLUDE MANY "NON
SALARY" ITEMS, SUCH AS TEACHING LOADS, CLASS SIZE, CURRICULAR AND
PROGRAM CHOICES, QUESTIONS OF STUDENT DISCIPLINE, AND SELECTION OF
ADMINISTRATIVE PERSONNEL--MATTERS TRADITIONALLY DECIDED HERETOFORE AT
THE LOCAL LEVEL.  SIMON, SUPRA, N. 62, AT 434 - 436.  SEE, E. G.,
COLEMAN, THE STRUGGLE FOR CONTROL OF EDUCATION, IN EDUCATION AND SOCIAL
POLICY:  LOCAL CONTROL OF EDUCATION 64, 77 - 79 (C. BOWERS, I. HOUSEGO
& D. DYKE EDS.  1970); J. CONANT, THE CHILD, THE PARENT, AND THE STATE
27 (1959) ("UNLESS A LOCAL COMMUNITY, THROUGH ITS SCHOOL BOARD, HAS
SOME CONTROL OVER THE PURSE, THERE CAN BE LITTLE REAL FEELING IN THE
COMMUNITY THAT THE SCHOOLS ARE IN FACT LOCAL SCHOOLS . . ."); HOWE,
ANATOMY OF A REVOLUTION, IN SATURDAY REVIEW 84, 88 (NOV. 20, 1971) ("IT
IS AN AXIOM OF AMERICAN POLITICS THAT CONTROL AND POWER FOLLOW MONEY .
. ."); R. HUTCHINSON, STATE-ADMINISTERED LOCALLY-SHARED TAXES 21 (1931)
("(STATE ADMINISTRATION OF TAXATION IS THE FIRST STEP TOWARD STATE
CONTROL OF THE FUNCTIONS SUPPORTED BY THESE TAXES . . ."). 
IRRESPECTIVE OF WHETHER ONE REGARDS SUCH PROSPECTS AS DETRIMENTAL, OR
WHETHER HE AGREES THAT THE CONSEQUENCE IS INEVITABLE, IT CERTAINLY
CANNOT BE DOUBTED THAT THERE IS A RATIONAL BASIS FOR THIS CONCERN ON
THE PART OF PARENTS, EDUCATORS, AND LEGISLATORS.     /110/  THIS COURT
HAS NEVER DOUBTED THE PROPRIETY OF MAINTAINING POLITICAL SUBDIVISIONS
WITHIN THE STATES AND HAS NEVER FOUND IN THE EQUAL PROTECTION CLAUSE
ANY PER SE RULE OF "TERRITORIAL UNIFORMITY."  MCGOWAN V. MARYLAND, 366
U.S., AT 427.  SEE ALSO GRIVVIN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD
COUNTY, 377 U.S., AT 230 - 231; SALSBURG V. MARYLAND, 346 U.S. 545
(1954).  CF. BOARD OF EDUCATION OF MUSKOGEE V. OKLAHOMA, 409 F. 2D 665,
668 (CA10 1969). 

/111/  ANY ALTERNATIVE THAT CALLS FOR SIGNIFICANT INCREASES IN
EXPENDITURES FOR EDUCATION, WHETHER FINANCED THROUGH INCREASES IN
PROPERTY TAXATION OR THROUGH OTHER SOURCES OF TAX DOLLARS, SUCH AS
INCOME AND SALES TAXES, IS CERTAIN TO ENCOUNTER POLITICAL BARRIERS.  AT
A TIME WHEN NEARLY EVERY STATE AND LOCALITY IS SUFFERING FROM FISCAL
UNDERNOURISHMENT, AND WITH DEMANDS FOR SERVICES OF ALL KINDS BURGEONING
AND WITH WEARY TAXPAYERS ALREADY RESISTING TAX INCREASES, THERE IS
CONSIDERABLE REASON TO QUESTION WHETHER A DECISION OF THIS COURT
NULLIFYING PRESENT STATE TAXING SYSTEMS WOULD RESULT IN A MARKED
INCREASE IN THE FINANCIAL COMMITMENT TO EDUCATION.  SEE SENATE SELECT
COMMITTEE ON EQUAL EDUCATIONAL OPPORTUNITY, 92D CONG., 2D SESS., TOWARD
EQUAL EDUCATIONAL OPPORTUNITY 339 - 345 (COMM. PRINT 1972); BERKE &
CALLAHAN, SERRANO V. PRIEST:  MILESTONE OR MILLSTONE FOR SCHOOL
FINANCE, 21 J. PUB. L. 23, 25 - 26 (1972); SIMON, SUPRA, N. 62, AT 420
421.  IN TEXAS, IT HAS BEEN CALCULATED THAT $2.4 BILLION OF ADDITIONAL
SCHOOL FUNDS WOULD BE REQUIRED TO BRING ALL SCHOOLS IN THAT STATE UP TO
THE PRESENT LEVEL OF EXPENDITURE OF ALL BUT THE WEALTHIEST DISTRICTS-
AN AMOUNT MORE THAN DOUBLE THAT CURRENTLY BEING SPENT ON EDUCATION. 
TEXAS RESEARCH LEAGUE, SUPRA, N. 20, AT 16 - 18.  AN AMICUS CURIAE
BRIEF FILED ON BEHALF OF ALMOST 30 STATES, FOCUSING ON THESE PRACTICAL
CONSEQUENCES, CLAIMS WITH SOME JUSTIFICATION THAT "EACH OF THE
UNDERSIGNED STATES . . . WOULD SUFFER SEVERE FINANCIAL STRINGENCY." 
BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLANTS 2 (FILED BY MONTGOMERY
COUNTY, MD. ET AL.). 

/112/  SEE NOTE, SUPRA, N. 53.  SEE ALSO AUTHORITIES CITED N. 114,
INFRA. 

/113/  SEE GOLDSTEIN, SUPRA, N. 38, AT 526; JENCKS, SUPRA, N. 86, AT
27; U.S. COMM'N ON CIVIL RIGHTS, INEQUALITY IN SCHOOL FINANCING:  THE
ROLE OF THE LAW 37 (1972).  COONS, CLUNE & SUGARMAN, SUPRA, N. 13, AT
356 - 357, N. 47, HAVE NOTED THAT IN CALIFORNIA, FOR EXAMPLE, "(FIFTY
NINE PERCENT . . . OF MINORITY STUDENTS LIVE IN DISTRICTS ABOVE THE
MEDIAN (AVERAGE VALUATION PER PUPIL.)"  IN BEXAR COUNTY, THE LARGEST
DISTRICT BY FAR--THE SAN ANTONIO INDEPENDENT SCHOOL DISTRICT--IS ABOVE
THE LOCAL AVERAGE IN BOTH THE AMOUNT OF TAXABLE WEALTH PER PUPIL AND IN
MEDIAN FAMILY INCOME.  YET 72% OF ITS STUDENTS ARE MEXICAN-AMERICANS. 
AND, IN 1967 - 1968 IT SPENT ONLY A VERY FEW DOLLARS LESS PER PUPIL
THAN THE NORTH EAST AND NORTH SIDE INDEPENDENT SCHOOL DISTRICTS, WHICH
HAVE ONLY 7% AND 18% MEXICAN-AMERICAN ENROLLMENT RESPECTIVELY.  BERKE,
CARNEVALE, MORGAN & WHITE, SUPRA, N. 29, AT 673. 

/114/  SEE SENATE SELECT COMMITTEE ON EQUAL EDUCATIONAL OPPORTUNITY,
92D CONG., 2D SESS., ISSUES IN SCHOOL FINANCE 129 (COMM. PRINT 1972)
(MONOGRAPH ENTITLED INEQUITIES IN SCHOOL FINANCE PREPARED BY PROFESSORS
BERKE AND CALLAHAN); U.S. OFFICE OF EDUCATION, FINANCES OF LARGE-CITY
SCHOOL SYSTEMS:  A COMPARATIVE ANALYSIS (1972) (HEW PUBLICATION); U.S.
COMM'N ON CIVIL RIGHTS, SUPRA, N. 113, AT 33 - 36; SIMON, SUPRA, N. 62,
AT 410 - 411, 418. 

[[DOP 

MR. JUSTICE STEWART, CONCURRING. 

THE METHOD OF FINANCING PUBLIC SCHOOLS IN TEXAS, AS IN ALMOST EVERY
OTHER STATE, HAS RESULTED IN A SYSTEM OF PUBLIC EDUCATION THAT CAN
FAIRLY BE DESCRIBED AS CHAOTIC AND UNJUST.  /1/  IT DOES NOT FOLLOW,
HOWEVER, AND I CANNOT FIND, THAT THIS SYSTEM VIOLATES THE CONSTITUTION
OF THE UNITED STATES.  I JOIN THE OPINION AND JUDGMENT OF THE COURT
BECAUSE I AM CONVINCED THAT ANY OTHER COURSE WOULD MARK AN
EXTRAORDINARY DEPARTURE FROM PRINCIPLED ADJUDICATION UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THE UNCHARTED
DIRECTIONS OF SUCH A DEPARTURE ARE SUGGESTED, I THINK, BY THE
IMAGINATIVE DISSENTING OPINION MY BROTHER MARSHALL HAS FILED TODAY. 

UNLIKE OTHER PROVISIONS OF THE CONSTITUTION, THE EQUAL PROTECTION
CLAUSE CONFERS NO SUBSTANTIVE RIGHTS AND CREATES NO SUBSTANTIVE
LIBERTIES.  /2/  THE FUNCTION OF THE EQUAL PROTECTION CLAUSE, RATHER,
IS SIMPLY TO MEASURE THE VALIDITY OF CLASSIFICATIONS CREATED BY STATE
LAWS. 

THERE IS HARDLY A LAW ON THE BOOKS THAT DOES NOT AFFECT SOME PEOPLE
DIFFERENTLY FROM OTHERS. 

[[HC60'(ORIGINAL DOCUMENT PAGE 60)'  BUT THE BASIC CONCERN OF THE
EQUAL PROTECTION CLAUSE IS WITH STATE LEGISLATION WHOSE PURPOSE OR
EFFECT IS TO CREATE DISCRETE AND OBJECTIVELY IDENTIFIABLE CLASSES.  /3/
AND WITH RESPECT TO SUCH LEGISLATION, IT HAS LONG BEEN SETTLED THAT
THE EQUAL PROTECTION CLAUSE IS OFFENDED ONLY BY LAWS THAT ARE
INVIDIOUSLY DISCRIMINATORY--ONLY BY CLASSIFICATIONS THAT ARE WHOLLY
ARBITRARY OR CAPRICIOUS.  SEE, E. G., RINALDI V. YEAGER, 384 U.S. 305. 
THIS SETTLED PRINCIPLE OF CONSTITUTIONAL LAW WAS COMPENDIOUSLY STATED
IN MR. CHIEF JUSTICE WARREN'S OPINION FOR THE COURT IN MCGOWAN V.
MARYLAND, 366 U.S. 420, 425 - 426, IN THE FOLLOWING WORDS: 

"ALTHOUGH NO PRECISE FORMULA HAS BEEN DEVELOPED, THE COURT HAS HELD
THAT THE FOURTEENTH AMENDMENT PERMITS THE STATES A WIDE SCOPE OF
DISCRETION IN ENACTING LAWS WHICH AFFECT SOME GROUPS OF CITIZENS
DIFFERENTLY THAN OTHERS.  THE CONSTITUTIONAL SAFEGUARD IS OFFENDED ONLY
IF THE CLASSIFICATION RESTS ON GROUNDS WHOLLY IRRELEVANT TO THE
ACHIEVEMENT OF THE STATE'S OBJECTIVE.  STATE LEGISLATURES ARE PRESUMED
TO HAVE ACTED WITHIN THEIR CONSTITUTIONAL POWER DESPITE THE FACT THAT,
IN PRACTICE, THEIR LAWS RESULT IN SOME INEQUALITY.  A STATUTORY
DISCRIMINATION WILL NOT BE SET ASIDE IF ANY STATE OF FACTS REASONABLY
MAY BE CONCEIVED TO JUSTIFY IT." 

THIS DOCTRINE IS NO MORE THAN A SPECIFIC APPLICATION OF ONE OF THE
FIRST PRINCIPLES OF CONSTITUTIONAL ADJUDICATION--THE BASIC PRESUMPTION
OF THE CONSTITUTIONAL VALIDITY OF A DULY ENACTED STATE OR FEDERAL LAW. 
SEE THAYER, THE ORIGIN AND SCOPE OF THE AMERICAN DOCTRINE OF
CONSTITUTIONAL LAW, 7 HARV. L. REV. 129 (1893). 

UNDER THE EQUAL PROTECTION CLAUSE, THIS PRESUMPTION OF
CONSTITUTIONAL VALIDITY DISAPPEARS WHEN A STATE HAS ENACTED LEGISLATION
WHOSE PURPOSE OR EFFECT IS TO CREATE CLASSES BASED UPON CRITERIA THAT,
IN A CONSTITUTIONAL SENSE, ARE INHERENTLY "SUSPECT." 

[[HC61'(ORIGINAL DOCUMENT PAGE 61)'  BECAUSE OF THE HISTORIC PURPOSE
OF THE FOURTEENTH AMENDMENT, THE PRIME EXAMPLE OF SUCH A "SUSPECT"
CLASSIFICATION IS ONE THAT IS BASED UPON RACE.  SEE, E. G., BROWN V.
BOARD OF EDUCATION, 347 U.S. 483; MCLAUGHLIN V. FLORIDA, 379 U.S. 184. 
BUT THERE ARE OTHER CLASSIFICATIONS THAT, AT LEAST IN SOME SETTINGS,
ARE ALSO "SUSPECT"--FOR EXAMPLE, THOSE BASED UPON NATIONAL ORIGIN, /4/
ALIENAGE, /5/  INDIGENCY, /6/  OR ILLEGITIMACY.  /7/ 

MOREOVER, QUITE APART FROM THE EQUAL PROTECTION CLAUSE, A STATE LAW
THAT IMPINGES UPON A SUBSTANTIVE RIGHT OR LIBERTY CREATED OR CONFERRED
BY THE CONSTITUTION IS, OF COURSE, PRESUMPTIVELY INVALID, WHETHER OR
NOT THE LAW'S PURPOSE OR EFFECT IS TO CREATE ANY CLASSIFICATIONS.  FOR
EXAMPLE, A LAW THAT PROVIDED THAT NEWSPAPERS COULD BE PUBLISHED ONLY BY
PEOPLE WHO HAD RESIDED IN THE STATE FOR FIVE YEARS COULD BE
SUPERFICIALLY VIEWED AS INVIDIOUSLY DISCRIMINATING AGAINST AN
IDENTIFIABLE CLASS IN VIOLATION OF THE EQUAL PROTECTION CLAUSE.  BUT,
MORE BASICALLY, SUCH A LAW WOULD BE INVALID SIMPLY BECAUSE IT ABRIDGED
THE FREEDOM OF THE PRESS.  NUMEROUS CASES IN THIS COURT ILLUSTRATE THIS
PRINCIPLE.  /8/ 

IN REFUSING TO INVALIDATE THE TEXAS SYSTEM OF FINANCING ITS PUBLIC
SCHOOLS, THE COURT TODAY APPLIES WITH THOUGHTFULNESS AND UNDERSTANDING
THE BASIC PRINCIPLES I HAVE SO SKETCHILY SUMMARIZED. 

[[HC62'(ORIGINAL DOCUMENT PAGE 62)'  FIRST, AS THE COURT POINTS OUT,
THE TEXAS SYSTEM HAS HARDLY CREATED THE KIND OF OBJECTIVELY
IDENTIFIABLE CLASSES THAT ARE COGNIZABLE UNDER THE EQUAL PROTECTION
CLAUSE.  /9/  SECOND, EVEN ASSUMING THE EXISTENCE OF SUCH DISCERNIBLE
CATEGORIES, THE CLASSIFICATIONS ARE IN NO SENSE BASED UPON
CONSTITUTIONALLY "SUSPECT" CRITERIA.  THIRD, THE TEXAS SYSTEM DOES NOT
REST "ON GROUNDS WHOLLY IRRELEVANT TO THE ACHIEVEMENT OF THE STATE'S
OBJECTIVE."  FINALLY, THE TEXAS SYSTEM IMPINGES UPON NO SUBSTANTIVE
CONSTITUTIONAL RIGHTS OR LIBERTIES.  IT FOLLOWS, THEREFORE, UNDER THE
ESTABLISHED PRINCIPLE REAFFIRMED IN MR. CHIEF JUSTICE WARREN'S OPINION
FOR THE COURT IN MCGOWAN V. MARYLAND, SUPRA, THAT THE JUDGMENT OF THE
DISTRICT COURT MUST BE REVERSED. 

[[DFN 

/1/  SEE NEW YORK TIMES, MAR. 11, 1973, P. 1, COL. 1. 

/2/  THERE IS ONE NOTABLE EXCEPTION TO THE ABOVE STATEMENT:  IT HAS
BEEN ESTABLISHED IN RECENT YEARS THAT THE EQUAL PROTECTION CLAUSE
CONFERS THE SUBSTANTIVE RIGHT TO PARTICIPATE ON AN EQUAL BASIS WITH
OTHER QUALIFIED VOTERS WHENEVER THE STATE HAS ADOPTED AN ELECTORAL
PROCESS FOR DETERMINING WHO WILL REPRESENT ANY SEGMENT OF THE STATE'S
POPULATION.  SEE, E. G., REYNOLDS V. SIMS, 377 U.S. 533; KRAMER V.
UNION SCHOOL DISTRICT, 395 U.S. 621; DUNN V. BLUMSTEIN, 405 U.S. 330,
336.  BUT THERE IS NO CONSTITUTIONAL RIGHT TO VOTE, AS SUCH.  MINOR V.
HAPPERSETT, 21 WALL.  162.  IF THERE WERE SUCH A RIGHT, BOTH THE
FIFTEENTH AMENDMENT AND THE NINETEENTH AMENDMENT WOULD HAVE BEEN WHOLLY
UNNECESSARY. 

/3/  BUT SEE BULLOCK V. CARTER, 405 U.S. 134. 

/4/  SEE OYAMA V. CALIFORNIA, 332 U.S. 633, 644 - 646. 

/5/  SEE GRAHAM V. RICHARDSON, 403 U.S. 365, 372. 

/6/  SEE GRIFFIN V. ILLINOIS, 351 U.S. 12.  "INDIGENCY"  MEANS
ACTUAL OR FUNCTIONAL INDIGENCY; IT DOES NOT MEAN COMPARATIVE POVERTY
VIS-A-VIS COMPARATIVE AFFLUENCE.  SEE JAMES V. VALTIERRA, 402 U.S.
137. 

/7/  SEE GOMEZ V. PEREZ, 409 U.S. 535; WEBER V. AETNA CASUALTY &
SURETY CO., 406 U.S. 164. 

/8/  SEE, E. G., POLICE DEPT. OF CHICAGO V. MOSLEY, 408 U.S. 92
(FREE SPEECH); SHAPIRO V. THOMPSON, 394 U.S. 618 (FREEDOM OF INTERSTATE
TRAVEL); WILLIAMS V. RHODES, 393 U.S. 23 (FREEDOM OF ASSOCIATION);
SKINNER V. OKLAHOMA, 316 U.S. 535 ("LIBERTY" CONDITIONALLY PROTECTED BY
DUE PROCESS CLAUSE OF FOURTEENTH AMENDMENT). 

/9/  SEE KATZENBACH V. MORGAN, 384 U.S. 641, 660 (HARLAN, J.,
DISSENTING). 

[[DOP 

MR. JUSTICE BRENNAN, DISSENTING. 

ALTHOUGH I AGREE WITH MY BROTHER WHITE THAT THE TEXAS STATUTORY
SCHEME IS DEVOID OF ANY RATIONAL BASIS, AND FOR THAT REASON IS
VIOLATIVE OF THE EQUAL PROTECTION CLAUSE, I ALSO RECORD MY DISAGREEMENT
WITH THE COURT'S RATHER DISTRESSING ASSERTION THAT A RIGHT MAY BE
DEEMED "FUNDAMENTAL" FOR THE PURPOSE OF EQUAL PROTECTION ANALYSIS ONLY
IF IT IS "EXPLICITLY OR IMPLICITLY GUARANTEED BY THE CONSTITUTION." 
ANTE, AT 33 - 34.  AS MY BROTHER MARSHALL CONVINCINGLY DEMONSTRATES,
OUR PRIOR CASES STAND FOR THE PROPOSITION THAT "FUNDAMENTALITY" IS, IN
LARGE MEASURE, A FUNCTION OF THE RIGHT'S IMPORTANCE IN TERMS OF THE
EFFECTUATION OF THOSE RIGHTS WHICH ARE IN FACT CONSTITUTIONALLY
GUARANTEED.  THUS, "(AS THE NEXUS BETWEEN THE SPECIFIC CONSTITUTIONAL
GUARANTEE AND THE NON-CONSTITUTIONAL INTEREST DRAWS CLOSER, THE
NONCONSTITUTIONAL INTEREST BECOMES MORE FUNDAMENTAL AND THE DEGREE OF
JUDICIAL SCRUTINY APPLIED WHEN THE INTEREST IS INFRINGED ON A
DISCRIMINATORY BASIS MUST BE ADJUSTED ACCORDINGLY."  POST, AT 102 -
103. 

HERE, THERE CAN BE NO DOUBT THAT EDUCATION IS INEXTRICABLY LINKED TO
THE RIGHT TO PARTICIPATE IN THE ELECTORAL PROCESS AND TO THE RIGHTS OF
FREE SPEECH AND ASSOCIATION GUARANTEED BY THE FIRST AMENDMENT. 

[[HC63'(ORIGINAL DOCUMENT PAGE 63)'  SEE POST, AT 111 - 115.  THIS
BEING SO, ANY CLASSIFICATION AFFECTING EDUCATION MUST BE SUBJECTED TO
STRICT JUDICIAL SCRUTINY, AND SINCE EVEN THE STATE CONCEDES THAT THE
STATUTORY SCHEME NOW BEFORE US CANNOT PASS CONSTITUTIONAL MUSTER UNDER
THIS STRICTER STANDARD OF REVIEW, I CAN ONLY CONCLUDE THAT THE TEXAS
SCHOOL-FINANCING SCHEME IS CONSTITUTIONALLY INVALID. 

[[DOP 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

THE TEXAS PUBLIC SCHOOLS ARE FINANCED THROUGH A COMBINATION OF STATE
FUNDING, LOCAL PROPERTY TAX REVENUE, AND SOME FEDERAL FUNDS.  /1/
CONCEDEDLY, THE SYSTEM YIELDS WIDE DISPARITY IN PER-PUPIL REVENUE AMONG
THE VARIOUS DISTRICTS.  IN A TYPICAL YEAR, FOR EXAMPLE, THE ALAMO
HEIGHTS DISTRICT HAD TOTAL REVENUES OF $594 PER PUPIL, WHILE THE
EDGEWOOD DISTRICT HAD ONLY $356 PER PUPIL.  /2/  THE MAJORITY AND THE
STATE CONCEDE, AS THEY MUST, THE EXISTENCE OF MAJOR DISPARITIES IN
SPENDABLE FUNDS.  BUT THE STATE CONTENDS THAT THE DISPARITIES DO NOT
INVIDIOUSLY DISCRIMINATE AGAINST CHILDREN AND FAMILIES IN DISTRICTS
SUCH AS EDGEWOOD, BECAUSE THE TEXAS SCHEME IS DESIGNED "TO PROVIDE AN
ADEQUATE EDUCATION FOR ALL, WITH LOCAL AUTONOMY TO GO BEYOND THAT AS
INDIVIDUAL SCHOOL DISTRICTS DESIRE AND ARE ABLE . . . . 

[[HC64'(ORIGINAL DOCUMENT PAGE 64)'  IT LEAVES TO THE PEOPLE OF EACH
DISTRICT THE CHOICE WHETHER TO GO BEYOND THE MINIMUM AND, IF SO, BY HOW
MUCH."  /3/  THE MAJORITY ADVANCES THIS RATIONALIZATION:  "WHILE
ASSURING A BASIC EDUCATION FOR EVERY CHILD IN THE STATE, IT PERMITS AND
ENCOURAGES A LARGE MEASURE OF PARTICIPATION IN AND CONTROL OF EACH
DISTRICT'S SCHOOLS AT THE LOCAL LEVEL." 

I CANNOT DISAGREE WITH THE PROPOSITION THAT LOCAL CONTROL AND LOCAL
DECISIONMAKING PLAY AN IMPORTANT PART IN OUR DEMOCRATIC SYSTEM OF
GOVERNMENT.  CF. JAMES V. VALTIERRA, 402 U.S. 137 (1971).  MUCH MAY BE
LEFT TO LOCAL OPTION, AND THIS CASE WOULD BE QUITE DIFFERENT IF IT WERE
TRUE THAT THE TEXAS SYSTEM, WHILE INSURING MINIMUM EDUCATIONAL
EXPENDITURES IN EVERY DISTRICT THROUGH STATE FUNDING, EXTENDED A
MEANINGFUL OPTION TO ALL LOCAL DISTRICTS TO INCREASE THEIR PER-PUPIL
EXPENDITURES AND SO TO IMPROVE THEIR CHILDREN'S EDUCATION TO THE EXTENT
THAT INCREASED FUNDING WOULD ACHIEVE THAT GOAL.  THE SYSTEM WOULD THEN
ARGUABLY PROVIDE A RATIONAL AND SENSIBLE METHOD OF ACHIEVING THE STATED
AIM OF PRESERVING AN AREA FOR LOCAL INITIATIVE AND DECISION.     THE
DIFFICULTY WITH THE TEXAS SYSTEM, HOWEVER, IS THAT IT PROVIDES A
MEANINGFUL OPTION TO ALAMO HEIGHTS AND LIKE SCHOOL DISTRICTS BUT ALMOST
NONE TO EDGEWOOD AND THOSE OTHER DISTRICTS WITH A LOW PER-PUPIL REAL
ESTATE TAX BASE.  IN THESE LATTER DISTRICTS, NO MATTER HOW DESIROUS
PARENTS ARE OF SUPPORTING THEIR SCHOOLS WITH GREATER REVENUES, IT IS
IMPOSSIBLE TO DO DO THROUGH THE USE OF THE REAL ESTATE PROPERTY TAX. 
IN THESE DISTRICTS, THE TEXAS SYSTEM UTTERLY FAILS TO EXTEND A
REALISTIC CHOICE TO PARENTS BECAUSE THE PROPERTY TAX, WHICH IS THE ONLY
REVENUE-RAISING MECHANISM EXTENDED TO SCHOOL DISTRICTS, IS PRACTICALLY
AND LEGALLY UNAVAILABLE. 

[[HC65'(ORIGINAL DOCUMENT PAGE 65)' THAT THIS IS THE SITUATION MAY
BE READILY DEMONSTRATED. 

LOCAL SCHOOL DISTRICTS IN TEXAS RAISE THEIR PORTION OF THE
FOUNDATION SCHOOL PROGRAM--THE LOCAL FUND ASSIGNMENT--BY LEVYING AD
VALOREM TAXES ON THE PROPERTY LOCATED WITHIN THEIR BOUNDARIES.  IN
ADDITION, THE DISTRICTS ARE AUTHORIZED, BY THE STATE CONSTITUTION AND
BY STATUTE, TO LEVY AD VALOREM PROPERTY TAXES IN ORDER TO RAISE
REVENUES TO SUPPORT EDUCATIONAL SPENDING OVER AND ABOVE THE EXPENDITURE
OF FOUNDATION SCHOOL PROGRAM FUNDS. 

BOTH THE EDGEWOOD AND ALAMO HEIGHTS DISTRICTS ARE LOCATED IN BEXAR
COUNTY, TEXAS.  STUDENT ENROLLMENT IN ALAMO HEIGHTS IS 5, 432, IN
EDGEWOOD 22,862.  THE PER-PUPIL MARKET VALUE OF THE TAXABLE PROPERTY IN
ALAMO HEIGHTS IS $49,078, IN EDGEWOOD $5,960.  IN A TYPICAL, RELEVANT
YEAR, ALAMO HEIGHTS HAD A MAINTENANCE TAX RATE OF $1.20 AND A DEBT
SERVICE (BOND) TAX RATE OF 20[ PER $100 ASSESSED VALUATION, WHILE
EDGEWOOD HAD A MAINTENANCE RATE OF 52[ AND A BOND RATE OF 67[.  THESE
RATES, WHEN APPLIED TO THE RESPECTIVE TAX BASES, YIELDED ALAMO HEIGHTS
$1,433,473 IN MAINTENANCE DOLLARS AND $236,074 IN BOND DOLLARS, AND
EDGEWOOD $223,034 IN MAINTENANCE DOLLARS AND $279,023 IN BOND DOLLARS. 
AS IS READILY APPARENT, BECAUSE OF THE VARIANCE IN TAX BASES BETWEEN
THE DISTRICTS, RESULTS, IN TERMS OF REVENUES, DO NOT CORRELATE WITH
EFFORT, IN TERMS OF TAX RATE.  THUS, ALAMO HEIGHTS, WITH A TAX BASE
APPROXIMATELY TWICE THE SIZE OF EDGEWOOD'S BASE, REALIZED APPROXIMATELY
SIX TIMES AS MANY MAINTENANCE DOLLARS AS EDGEWOOD BY USING A TAX RATE
ONLY APPROXIMATELY TWO AND ONE-HALF TIMES LARGER.  SIMILARLY, ALAMO
HEIGHTS REALIZED SLIGHTLY FEWER BOND DOLLARS BY USING A BOND TAX RATE
LESS THAN ONE-THIRD OF THAT USED BY EDGEWOOD. 

NOR IS EDGEWOOD'S REVENUE-RAISING POTENTIAL ONLY DEFICIENT WHEN
COMPARED WITH ALAMO HEIGHTS. 

[[HC66'(ORIGINAL DOCUMENT PAGE 66)'  NORTH EAST DISTRICT HAS TAXABLE
PROPERTY WITH A PER-PUPIL MARKET VALUE OF APPROXIMATELY $31,000, BUT
TOTAL TAXABLE PROPERTY APPROXIMATELY FOUR AND ONE-HALF TIMES THAT OF
EDGEWOOD.  APPLYING A MAINTENANCE RATE OF $1, NORTH EAST YIELDED
$2,818,148.  THUS, BECAUSE OF ITS SUPERIOR TAX BASE, NORTH EAST WAS
ABLE TO APPLY A TAX RATE SLIGHTLY LESS THAN TWICE THAT APPLIED BY
EDGEWOOD AND YIELD MORE THAN 10 TIMES THE MAINTENANCE DOLLARS. 
SIMILARLY, NORTH EAST, WITH A BOND RATE OF 45[, YIELDED $1,249,159-
MORE THAN FOUR TIMES EDGEWOOD'S YIELD WITH TWO-THIRDS THE RATE. 

PLAINLY, WERE ALAMO HEIGHTS OR NORTH EAST TO APPLY THE EDGEWOOD TAX
RATE TO ITS TAX BASE, IT WOULD YIELD FAR GREATER REVENUES THAN EDGEWOOD
IS ABLE TO YIELD APPLYING THOSE SAME RATES TO ITS BASE.  CONVERSELY,
WERE EDGEWOOD TO APPLY THE ALAMO HEIGHTS OR NORTH EAST RATES TO ITS
BASE, THE YIELD WOULD BE FAR SMALLER THAN THE ALAMO HEIGHTS OR NORTH
EAST YIELDS.  THE DISPARITY IS, THEREFORE, CURRENTLY OPERATIVE AND ITS
IMPACT ON EDGEWOOD IS UNDENIABLY SERIOUS.  IT IS EVIDENT FROM
STATISTICS IN THE RECORD THAT SHOW THAT, APPLYING AN EQUALIZED TAX RATE
OF 85[ PER $100 ASSESSED VALUATION, ALAMO HEIGHTS WAS ABLE TO PROVIDE
APPROXIMATELY $330 PER PUPIL IN LOCAL REVENUES OVER AND ABOVE THE LOCAL
FUND ASSIGNMENT.  IN EDGEWOOD, ON THE OTHER HAND, WITH AN EQUALIZED TAX
RATE OF $1.05 PER $100 OF ASSESSED VALUATION, $26 PER PUPIL WAS RAISED
BEYOND THE LOCAL FUND ASSIGNMENT.  /4/  IN ALAMO HEIGHTS, TOTAL PER
PUPIL REVENUES FROM LOCAL, STATE, AND FEDERAL FUNDS WAS $594 PER PUPIL,
IN EDGEWOOD $356.  /5/ 

IN ORDER TO EQUAL THE HIGHEST YIELD IN ANY OTHER BEXAR COUNTY
DISTRICT, ALAMO HEIGHTS WOULD BE REQUIRED TO TAX AT THE RATE OF 68[ PER
$100 OF ASSESSED VALUATION. 

[[HC67'(ORIGINAL DOCUMENT PAGE 67)'  EDGEWOOD WOULD BE REQUIRED TO
TAX AT THE PROHIBITIVE RATE OF $5.76 PER $100.  BUT STATE LAW PLACES A
$1.50 PER $100 CEILING ON THE MAINTENANCE TAX RATE, A LIMIT THAT WOULD
SURELY BE REACHED LONG BEFORE EDGEWOOD ATTAINED AN EQUAL YIELD. 
EDGEWOOD IS THUS PRECLUDED IN LAW, AS WELL AS IN FACT, FROM ACHIEVING A
YIELD EVEN CLOSE TO THAT OF SOME OTHER DISTRICTS. 

THE EQUAL PROTECTION CLAUSE PERMITS DISCRIMINATIONS BETWEEN CLASSES
BUT REQUIRES THAT THE CLASSIFICATION BEAR SOME RATIONAL RELATIONSHIP TO
A PERMISSIBLE OBJECT SOUGHT TO BE ATTAINED BY THE STATUTE.  IT IS NOT
ENOUGH THAT THE TEXAS SYSTEM BEFORE US SEEKS TO ACHIEVE THE VALID,
RATIONAL PURPOSE OF MAXIMIZING LOCAL INITIATIVE; THE MEANS CHOSEN BY
THE STATE MUST ALSO BE RATIONALLY RELATED TO THE END SOUGHT TO BE
ACHIEVED.  AS THE COURT STATED JUST LAST TERM IN WEBER V. AETNA
CASUALTY & SURETY CO., 406 U.S. 164, 172 (1972): 

"THE TESTS TO DETERMINE THE VALIDITY OF STATE STATUTES UNDER THE
EQUAL PROTECTION CLAUSE HAVE BEEN VARIOUSLY EXPRESSED, BUT THIS COURT
REQUIRES, AT A MINIMUM, THAT A STATUTORY CLASSIFICATION BEAR SOME
RATIONAL RELATIONSHIP TO A LEGITIMATE STATE PURPOSE.  MOREY V. DOUD,
354 U.S. 457 (1957); WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483
(1955); GULF, COLORADO & SANTA FE R. CO. V. ELLIS, 165 U.S. 150 (1897);
YICK WO V. HOPKINS, 118 U.S. 356 (1886)." 

NEITHER TEXAS NOR THE MAJORITY HEEDS THIS RULE. 

[[HC68'(ORIGINAL DOCUMENT PAGE 68)'  IF THE STATE AIMS AT MAXIMIZING
LOCAL INITIATIVE AND LOCAL CHOICE, BY PERMITTING SCHOOL DISTRICTS TO
RESORT TO THE REAL PROPERTY TAX IF THEY CHOOSE TO DO SO, IT UTTERLY
FAILS IN ACHIEVING ITS PURPOSE IN DISTRICTS WITH PROPERTY TAX BASES SO
LOW THAT THERE IS LITTLE IF ANY OPPORTUNITY FOR INTERESTED PARENTS,
RICH OR POOR, TO AUGUMENT SCHOOL DISTRICT REVENUES.  REQUIRING THE
STATE TO ESTABLISH ONLY THAT UNEQUAL TREATMENT IS IN FURTHERANCE OF A
PERMISSIBLE GOAL, WITHOUT ALSO REQUIRING THE STATE TO SHOW THAT THE
MEANS CHOSEN TO EFFECTUATE THAT GOAL ARE RATIONALLY RELATED TO ITS
ACHIEVEMENT, MAKES EQUAL PROTECTION ANALYSIS NO MORE THAN AN EMPTY
GESTURE.  /6/  IN MY VIEW, THE PARENTS AND CHILDREN IN EDGEWOOD, AND IN
LIKE DISTRICTS, SUFFER FROM AN INVIDIOUS DISCRIMINATION VIOLATIVE OF
THE EQUAL PROTECTION CLAUSE. 

THIS DOES NOT, OF COURSE, MEAN THAT LOCAL CONTROL MAY NOT BE A
LEGITIMATE GOAL OF A SCHOOL FIANANCING SYSTEM.  NOR DOES IT MEAN THAT
THE STATE MUST GUARANTEE EACH DISTRICT AN EQUAL PER-PUPIL REVENUE FROM
THE STATE SCHOOL-FINANCING SYSTEM.  NOR DOES IT MEAN, AS THE MAJORITY
APPEARS TO BELIEVE, THAT, BY AFFIRMING THE DECISION BELOW, THIS COURT
WOULD BE "IMPOSING ON THE STATES INFLEXIBLE CONSTITUTIONAL RESTRAINTS
THAT COULD CIRCUMSCRIBE OR HANDICAP THE CONTINUED RESEARCH AND
EXPERIMENTATION SO VITAL TO FINDING EVEN PARTIAL SOLUTIONS TO
EDUCATIONAL PROBLEMS AND TO KEEPING ABREAST OF EVER-CHANGING
CONDITIONS."  ON THE CONTRARY, IT WOULD MERELY MEAN THAT THE STATE MUST
FASHION A FINANCING SCHEME WHICH PROVIDES A RATIONAL BASIS FOR THE
MAXIMIZATION OF LOCAL CONTROL, IF LOCAL CONTROL IS TO REMAIN A GOAL OF
THE SYSTEM, AND NOT A SCHEME WITH "DIFFERENT TREATMENT BEING) ACCORDED
TO PERSONS PLACED BY A STATUTE INTO DIFFERENT CLASSES ON THE BASIS OF
CRITERIA WHOLLY UNRELATED TO THE OBJECTIVE OF THAT STATUTE." 

[[HC69'(ORIGINAL DOCUMENT PAGE 69)'  REED V. REED, 404 U.S. 71, 75 -
76 (1971). 

PERHAPS THE MAJORITY BELIEVES THAT THE MAJOR DISPARITY IN REVENUES
PROVIDED AND PERMITTED BY THE TEXAS SYSTEM IS INCONSEQUENTIAL.  I
CANNOT AGREE, HOWEVER, THAT THE DIFFERENCE OF THE MAGNITUDE APPEARING
IN THIS CASE CAN SENSIBLY BE IGNORED, PARTICULARLY SINCE THE STATE
ITSELF CONSIDERS IT SO IMPORTANT TO PROVIDE OPPORTUNITIES TO EXCEED THE
MINIMUM STATE EDUCATIONAL EXPENDITURES. 

THERE IS NO DIFFICULTY IN IDENTIFYING THE CLASS THAT IS SUBJECT TO
THE ALLEGED DISCRIMINATION AND THAT IS ENTITLED TO THE BENEFITS OF THE
EQUAL PROTECTION CLAUSE.  I NEED GO NO FARTHER THAN THE PARENTS AND
CHILDREN IN THE EDGEWOOD DISTRICT, WHO ARE PLAINTIFFS HERE AND WHO
ASSERT THAT THEY ARE ENTITLED TO THE SAME CHOICE AS ALAMO HEIGHTS TO
AUGMENT LOCAL EXPENDITURES FOR SCHOOLS BUT ARE DENIED THAT CHOICE BY
STATE LAW.  THIS GROUP CONSTITUTES A CLASS SUFFICIENTLY DEFINITE TO
INVOKE THE PROTECTION OF THE CONSTITUTION.  THEY ARE AS ENTITLED TO THE
PROTECTION OF THE EQUAL PROTECTION CLAUSE AS WERE THE VOTERS IN
ALLEGEDLY UNREPRESENTED COUNTIES IN THE REAPPORTIONMENT CASES.  SEE, E.
G., BAKER V. CARR, 369 U.S. 186, 204 - 208 (1962); GRAY V. SANDERS, 372
U.S. 368, 375 (1963); REYNOLDS V. SIMS, 377 U.S. 533, 554 - 556
(1964).  AND IN BULLOCK V. CARTER, 405 U.S. 134 (1972), WHERE A
CHALLENGE TO THE TEXAS CANDIDATE FILING FEE ON EQUAL PROTECTION GROUNDS
WAS UPHELD, WE NOTED THAT THE VICTIMS OF ALLEGED DISCRIMINATION WROUGHT
BY THE FILING FEE "CANNOT BE DESCRIBED BY REFERENCE TO DISCRETE AND
PRECISELY DEFINED SEGMENTS OF THE COMMUNITY AS IS TYPICAL OF INEQUITIES
CHALLENGED UNDER THE EQUAL PROTECTION CLAUSE," BUT CONCLUDED THAT "WE
WOULD IGNORE REALITY WERE WE NOT TO RECOGNIZE THAT THIS SYSTEM FALLS
WITH UNEQUAL WEIGHT ON VOTERS, AS WELL AS CANDIDATES, ACCORDING TO
THEIR ECONOMIC STATUS."  ID., AT 144. 

[[HC70'(ORIGINAL DOCUMENT PAGE 70)'  SIMILARLY, IN THE PRESENT CASE
WE WOULD BLINK REALITY TO IGNORE THE FACT THAT SCHOOL DISTRICTS, AND
STUDENTS IN THE END, ARE DIFFERENTIALLY AFFECTED BY THE TEXAS SCHOOL
FINANCING SCHEME WITH RESPECT TO THEIR CAPABILITY TO SUPPLEMENT THE
MINIMUM FOUNDATION SCHOOL PROGRAM.  AT THE VERY LEAST, THE LAW
DISCRIMINATES AGAINST THOSE CHILDREN AND THEIR PARENTS WHO LIVE IN
DISTRICTS WHERE THE PER-PUPIL TAX BASE IS SUFFICIENTLY LOW TO MAKE
IMPOSSIBLE THE PROVISION OF COMPARABLE SCHOOL REVENUES BY RESORT TO THE
REAL PROPERTY TAX WHICH IS THE ONLY DEVICE THE STATE EXTENDS FOR THIS
PURPOSE. 

[[DFN 

/1/  THE HEART OF THE TEXAS SYSTEM IS EMBODIED IN AN INTRICATE
SERIES OF STATUTORY PROVISIONS WHICH MAKE UP CHAPTER 16 OF THE TEXAS
EDUCATION CODE, TEX. EDUC.  CODE ANN. ^ 16.01 ET SEQ. SEE ALSO TEX.
EDUC.  CODE ANN. ^ 15.01 ET SEQ., AND ^ 20.10 ET SEQ. 

/2/  THE FIGURES DISCUSSED ARE FROM PLAINTIFFS' EXHIBITS 7, 8, AND
12.  THE FIGURES ARE FROM THE 1967 - 1968 SCHOOL YEAR.  BECAUSE THE
VARIOUS EXHIBITS RELIED UPON DIFFERENT ATTENDANCE TOTALS, THE PER-PUPIL
RESULTS DO NOT PRECISELY CORRESPOND TO THE GROSS FIGURES QUOTED.  THE
DISPARITY BETWEEN DISTRICTS, RATHER THAN THE ACTUAL FIGURES, IS THE
IMPORTANT FACTOR. 

/3/  BRIEF FOR APPELLANTS 11 - 13, 35. 

/4/  VARIABLE ASSESSMENT PRACTICES ARE ALSO REVEALED IN THIS
RECORD.  APPELLANTS DO NOT, HOWEVER, CONTEND THAT THIS FACTOR ACCOUNTS,
EVEN TO A SMALL EXTENT, FOR THE INTERDISTRICT DISPARITIES. 

/5/  THE PER-PUPIL FUNDS RECEIVED FROM STATE, FEDERAL, AND OTHER
SOURCES, WHILE NOT PRECISELY EQUAL, DO NOT ACCOUNT FOR THE LARGE
DIFFERENTIAL AND ARE NOT DIRECTLY ATTACKED IN THE PRESENT CASE. 

/6/  THE STATE OF TEXAS APPEARS TO CONCEDE THAT THE CHOICE OF
WHETHER OR NOT TO GO BEYOND THE STATE-PROVIDED MINIMUM "IS EASIER FOR
SOME DISTRICTS THAN FOR OTHERS.  THOSE DISTRICTS WITH LARGE AMOUNTS OF
TAXABLE PROPERTY CAN PRODUCE MORE REVENUE AT A LOWER TAX RATE AND WILL
PROVIDE THEIR CHILDREN WITH A MORE EXPENSIVE EDUCATION."  BRIEF FOR
APPELLANTS 35.  THE STATE NEVERTHELESS INSISTS THAT DISTRICTS HAVE A
CHOICE AND THAT THE PEOPLE IN EACH DISTRICT HAVE EXERCISED THAT CHOICE
BY PROVIDING SOME REAL PROPERTY TAX MONEY OVER AND ABOVE THE MINIMUM
FUNDS GUARANTEED BY THE STATE.  LIKE THE MAJORITY, HOWEVER, THE STATE
FAILS TO EXPLAIN WHY THE EQUAL PROTECTION CLAUSE IS NOT VIOLATED, OR
HOW ITS GOAL OF PROVIDING LOCAL GOVERNMENT WITH REALISTIC CHOICES AS TO
HOW MUCH MONEY SHOULD BE EXPENDED ON EDUCATION IS IMPLEMENTED, WHERE
THE SYSTEM MAKES IT MUCH MORE DIFFICULT FOR SOME THAN FOR OTHERS TO
PROVIDE ADDITIONAL EDUCATIONAL FUNDS AND WHERE, AS A PRACTICAL AND
LEGAL MATTER, IT IS IMPOSSIBLE FOR SOME DISTRICTS TO PROVIDE THE
EDUATIONAL BUDGETS THAT OTHER DISTRICTS CAN MAKE AVAILABLE FROM REAL
PROPERTY TAX REVENUES. 

[[DOP 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

THE COURT TODAY DECIDES, IN EFFECT, THAT A STATE MAY
CONSTITUTIONALLY VARY THE QUALITY OF EDUCATION WHICH IT OFFERS ITS
CHILDREN IN ACCORDANCE WITH THE AMOUNT OF TAXABLE WEALTH LOCATED IN THE
SCHOOL DISTRICTS WITHIN WHICH THEY RESIDE.  THE MAJORITY'S DECISION
REPRESENTS AN ABRUPT DEPARTURE FROM THE MAINSTREAM OF RECENT STATE AND
FEDERAL COURT DECISIONS CONCERNING THE UNCONSTITUTIONALITY OF STATE
EDUCATIONAL FINANCING SCHEMES DEPENDENT UPON TAXABLE LOCAL WEALTH.  /1/
MORE UNFORTUNATELY, THOUGH, THE MAJORITY'S HOLDING CAN ONLY BE SEEN AS
A RETREAT FROM OUR HISTORIC COMMITMENT TO EQUALITY OF EDUCATIONAL
OPPORTUNITY AND AS UNSUPPORTABLE ACQUIESCENCE IN A SYSTEM WHICH
DEPRIVES CHILDREN IN THEIR EARLIEST YEARS OF THE CHANCE TO REACH THEIR
FULL POTENTIAL AS CITIZENS.  THE COURT DOES THIS DESPITE THE ABSENCE OF
ANY SUBSTANTIAL JUSTIFICIATION FOR A SCHEME WHICH ARBITRARILY CHANNELS
EDUCATIONAL RESOURCES IN ACCORDANCE WITH THE FORTUITY OF THE AMOUNT OF
TAXABLE WEALTH WITHIN EACH DISTRICT.    [[HC71'(ORIGINAL DOCUMENT PAGE
71)' 

IN MY JUDGMENT, THE RIGHT OF EVERY AMERICAN TO AN EQUAL START IN
LIFE, SO FAR AS THE PROVISION OF A STATE SERVICE AS IMPORTANT AS
EDUCATION IS CONCERNED, IS FAR TOO VITAL TO PERMIT STATE DISCRIMINATION
ON GROUNDS AS TENUOUS AS THOSE PRESENTED BY THIS RECORD.  NOR CAN I
ACCEPT THE NOTION THAT IT IS SUFFICIENT TO REMIT THESE APPELLEES TO THE
VAGARIES OF THE POLITICAL PROCESS WHICH, CONTRARY TO THE MAJORITY'S
SUGGESTION, HAS PROVED SINGULARLY UNSUITED TO THE TASK OF PROVIDING A
REMEDY FOR THIS DISCRIMINATION.  /2/  I, FOR ONE, AM UNSATISFIED WITH
THE HOPE OF AN ULTIMATE "POLITICAL" SOLUTION SOMETIME IN THE INDEFINITE
FUTURE WHILE, IN THE MEANTIME, COUNTLESS CHILDREN UNJUSTIFIABLY RECEIVE
INFERIOR EDUCATIONS THAT "MAY AFFECT THEIR HEARTS AND MINDS IN A WAY
UNLIKELY EVER TO BE UNDONE."  BROWN V. BOARD OF EDUCATION, 347 U.S.
483, 494 (1954).  I MUST THEREFORE RESPECTFULLY DISSENT. 

[[HC72'(ORIGINAL DOCUMENT PAGE 72)'

        I 

THE COURT ACKNOWLEDGES THAT "SUBSTANTIAL INTERDISTRICT DISPARITIES
IN SCHOOL EXPENDITURES" EXIST IN TEXAS, ANTE, AT 15, AND THAT THESE
DISPARITIES ARE "LARGELY ATTRIBUTABLE TO DIFFERENCES IN THE AMOUNTS OF
MONEY COLLECTED THROUGH LOCAL PROPERTY TAXATION," ANTE, AT 16.  BUT
INSTEAD OF CLOSELY EXAMINING THE SERIOUSNESS OF THESE DISPARITIES AND
THE INVIDIOUSNESS OF THE TEXAS FINANCING SCHEME, THE COURT UNDERTAKES
AN ELABORATE EXPLORATION OF THE EFFORTS TEXAS HAS PURPORTEDLY MADE TO
CLOSE THE GAPS BETWEEN ITS DISTRICTS IN TERMS OF LEVELS OF DISTRICT
WEALTH AND RESULTING EDUCATIONAL FUNDING.  YET, HOWEVER PRAISEWORTHY
TEXAS' EQUALIZING EFFORTS, THE ISSUE IN THIS CASE IS NOT WHETHER TEXAS
IS DOING ITS BEST TO AMELIORATE THE WORST FEATURES OF A DISCRIMINATORY
SCHEME BUT, RATHER, WHETHER THE SCHEME ITSELF IS IN FACT
UNCONSTITUTIONALLY DISCRIMINATORY IN THE FACE OF THE FOURTEENTH
AMENDMENT'S GUARANTEE OF EQUAL PROTECTION OF THE LAWS.  WHEN THE TEXAS
FINANCING SCHEME IS TAKEN AS A WHOLE, I DO NOT THINK IT CAN BE DOUBTED
THAT IT PRODUCES A DISCRIMINATORY IMPACT ON SUBSTANTIAL NUMBERS OF THE
SCHOOL-AGE CHILDREN OF THE STATE OF TEXAS. 

  A 

FUNDS TO SUPPORT PUBLIC EDUCATION IN TEXAS ARE DERIVED FROM THREE
SOURCES:  LOCAL AD VALOREM PROPERTY TAXES; THE FEDERAL GOVERNMENT; AND
THE STATE GOVERNMENT.  /3/  IT IS ENLIGHTENING TO CONSIDER THESE IN
ORDER. 

UNDER TEXAS LAW, THE ONLY MECHANISM PROVIDED THE LOCAL SCHOOL
DISTRICT FOR RAISING NEW, UNENCUMBERED REVENUES IS THE POWER TO TAX
PROPERTY LOCATED WITHIN ITS BOUNDARIES.  /4/ 

[[HC73'(ORIGINAL DOCUMENT PAGE 73)'  AT THE SAME TIME, THE TEXAS
FINANCING SCHEME EFFECTIVELY RESTRICTS THE USE OF MONIES RAISED BY
LOCAL PROPERTY TAXATION TO THE SUPPORT OF PUBLIC EDUCATION WITHIN THE
BOUNDARIES OF THE DISTRICT IN WHICH THEY ARE RAISED, SINCE ANY SUCH
TAXES MUST BE APPROVED BY A MAJORITY OF THE PROPERTY-TAXPAYING VOTERS
OF THE DISTRICT.  /5/ 

THE SIGNIFICANCE OF THE LOCAL PROPERTY TAX ELEMENT OF THE TEXAS
FINANCING SCHEME IS APPARENT FROM THE FACT THAT IT PROVIDES THE FUNDS
TO MEET SOME 40% OF THE COST OF PUBLIC EDUCATION FOR TEXAS AS A WHOLE. 
/6/  YET THE AMOUNT OF REVENUE THAT ANY PARTICULAR TEXAS DISTRICT CAN
RAISE IS DEPENDENT ON TWO FACTORS--ITS TAX RATE AND ITS AMOUNT OF
TAXABLE PROPERTY.  THE FIRST FACTOR IS DETERMINED BY THE PROPERTY
TAXPAYING VOTERS OF THE DISTRICT.  /7/  BUT, REGARDLESS OF THE
ENTHUSIASM OF THE LOCAL VOTERS FOR PUBLIC EDUCATION, THE SECOND FACTOR-
THE TAXABLE PROPERTY WEALTH OF THE DISTRICT--NECESSARILY RESTRICTS THE
DISTRICT'S ABILITY TO RAISE FUNDS TO SUPPORT PUBLIC EDUCATION.  /8/
THUS, EVEN THOUGH THE VOTERS OF TWO TEXAS DISTRICTS MAY BE WILLING TO
MAKE THE SAME TAX EFFORT, THE RESULTS FOR THE DISTRICTS WILL BE
SUBSTANTIALLY DIFFERENT IF ONE IS PROPERTY RICH WHILE THE OTHER IS
PROPERTY POOR. 

[[HC74'(ORIGINAL DOCUMENT PAGE 74)'  THE NECESSARY EFFECT OF THE
TEXAS LOCAL PROPERTY TAX IS, IN SHORT, TO FAVOR PROPERTY-RICH DISTRICTS
AND TO DISFAVOR PROPERTY-POOR ONES. 

THE SERIOUSLY DISPARATE CONSEQUENCES OF THE TEXAS LOCAL PROPERTY
TAX, WHEN THAT TAX IS CONSIDERED ALONE, ARE AMPLY ILLUSTRATED BY DATA
PRESENTED TO THE DISTRICT COURT BY APPELLEES.  THESE DATA INCLUDED A
DETAILED STUDY OF A SAMPLE OF 110 TEXAS SCHOOL DISTRICTS /9/  FOR THE
1967 - 1968 SCHOOL YEAR CONDUCTED BY PROFESSOR JOEL S. BERKE OF
SYRACUSE UNIVERSITY'S EDUCATIONAL FINANCE POLICY INSTITUTE.  AMONG
OTHER THINGS, THIS STUDY REVEALED THAT THE 10 RICHEST DISTRICTS
EXAMINED, EACH OF WHICH HAD MORE THAN $100,000 IN TAXABLE PROPERTY PER
PUPIL, RAISED THROUGH LOCAL EFFORT AN AVERAGE OF $610 PER PUPIL,
WHEREAS THE FOUR POOREST DISTRICTS STUDIED, EACH OF WHICH HAD LESS THAN
$10,000 IN TAXABLE PROPERTY PER PUPIL, WERE ABLE TO RAISE ONLY AN
AVERAGE OF $63 PER PUPIL.  /10/  AND, AS THE COURT EFFECTIVELY
RECOGNIZES, ANTE, AT 27, THIS CORRELATION BETWEEN THE AMOUNT OF TAXABLE
PROPERTY PER PUPIL AND THE AMOUNT OF LOCAL REVENUES PER PUPIL HOLDS
TRUE FOR THE 96 DISTRICTS IN BETWEEN THE RICHEST AND POOREST
DISTRICTS.  /11/ 

[[HC75'(ORIGINAL DOCUMENT PAGE 75)' 

IT IS CLEAR, MOREOVER, THAT THE DISPARITY OF PER-PUPIL REVENUES
CANNOT BE DISMISSED AS THE RESULT OF LACK OF LOCAL EFFORT--THAT IS,
LOWER TAX RATES--BY PROPERTY-POOR DISTRICTS.  TO THE CONTRARY, THE DATA
PRESENTED BELOW INDICATE THAT THE POOREST DISTRICTS TEND TO HAVE THE
HIGHEST TAX RATES AND THE RICHEST DISTRICTS TEND TO HAVE THE LOWEST TAX
RATES.  /12/  YET, DESPITE THE APPARENT EXTRA EFFORT BEING MADE BY THE
POOREST DISTRICTS, THEY ARE UNABLE EVEN TO BEGIN TO MATCH THE RICHEST
DISTRICTS IN TERMS OF THE PRODUCTION OF LOCAL REVENUES.  FOR EXAMPLE,
THE 10 RICHEST DISTRICTS STUDIED BY PROFESSOR BERKE WERE ABLE TO
PRODUCE $585 PER PUPIL WITH AN EQUALIZED TAX RATE OF 31[ ON $100 OF
EQUALIZED VALUATION, BUT THE FOUR POOREST DISTRICTS STUDIES, WITH AN
EQUALIZED RATE OF 70[ ON $100 OF EQUALIZED VALUATION, WERE ABLE TO
PRODUCE ONLY $60 PER PUPIL.  /13/  WITHOUT MORE, THIS STATE-IMPOSED
SYSTEM OF EDUCATIONAL FUNDING PRESENTS A SERIOUS PICTURE OF WIDELY
VARYING TREATMENT OF TEXAS SCHOOL DISTRICTS, AND THEREBY OF TEXAS
SCHOOLCHILDREN, IN TERMS OF THE AMOUNT OF FUNDS AVAILABLE FOR PUBLIC
EDUCATION. 

[[HC76'(ORIGINAL DOCUMENT PAGE 76)' 

NOR ARE THESE FUNDING VARIATIONS CORRECTED BY THE OTHER ASPECTS OF
THE TEXAS FINANCING SCHEME.  THE FEDERAL GOVERNMENT PROVIDES FUNDS
SUFFICIENT TO COVER ONLY SOME 10% OF THE TOTAL COST OF PUBLIC EDUCATION
IN TEXAS.  /14/  FURTHERMORE, WHILE THESE FEDERAL FUNDS ARE NOT
DISTRIBUTED IN TEXAS SOLELY ON A PER-PUPIL BASIS, APPELLANTS DO NOT
HERE CONTEND THAT THEY ARE USED IN SUCH A WAY AS TO AMELIORATE
SIGNIFICANTLY THE WIDELY VARYING CONSEQUENCES FOR TEXAS SCHOOL
DISTRICTS AND SCHOOL CHILDREN OF THE LOCAL PROPERTY TAX ELEMENT OF THE
STATE FINANCING SCHEME.  /15/ 

STATE FUNDS PROVIDE THE REMAINING SOME 50% OF THE MONIES SPENT ON
PUBLIC EDUCATION IN TEXAS.  /16/  TECHNICALLY, THEY ARE DISTRIBUTED
UNDER TWO PROGRAMS.  THE FIRST IS THE AVAILABLE SCHOOL FUND, FOR WHICH
PROVISION IS MADE IN THE TEXAS CONSTITUTION.  /17/  THE AVAILABLE
SCHOOL FUND IS COMPOSED OF REVENUES OBTAINED FROM A NUMBER OF SOURCES,
INCLUDING RECEIPTS FROM THE STATE AD VALOREM PROPERTY TAX, ONE-FOURTH
OF ALL MONIES COLLECTED BY THE OCCUPATION TAX, ANNUAL CONTRIBUTIONS BY
THE LEGISLATURE FROM GENERAL REVENUES, AND THE REVENUES DERIVED FROM
THE PERMANENT SCHOOL FUND.  /18/  FOR THE 1970 - 1971 SCHOOL YEAR THE
AVAILABLE SCHOOL FUND CONTAINED $296,000,000. 

[[HC77'(ORIGINAL DOCUMENT PAGE 77)'  THE TEXAS CONSTITUTION REQUIRES
THAT THIS MONEY BE DISTRIBUTED ANNUALLY ON A PER CAPITA BASIS /19/  TO
THE LOCAL SCHOOL DISTRICTS.  OBVIOUSLY, SUCH A FLAT GRANT COULD NOT
ALONE ERADICATE THE FUNDING DIFFERENTIALS ATTRIBUTABLE TO THE LOCAL
PROPERTY TAX.  MOREOVER, TODAY THE AVAILABLE SCHOOL FUND IS IN REALITY
SIMPLY ONE FACET OF THE SECOND STATE FINANCING PROGRAM, THE MINIMUM
FOUNDATION SCHOOL PROGRAM, /20/  SINCE EACH DISTRICT'S ANNUAL SHARE OF
THE FUND IS DEDUCTED FROM THE SUM TO WHICH THE DISTRICT IS ENTITLED
UNDER THE FOUNDATION PROGRAM.  /21/ 

THE MINIMUM FOUNDATION SCHOOL PROGRAM PROVIDES FUNDS FOR THREE
SPECIFIC PURPOSES:  PROFESSIONAL SALARIES, CURRENT OPERATING EXPENSES,
AND TRANSPORTATION EXPENSES.  /22/  THE STATE PAYS, ON AN OVERALL
BASIS, FOR APPROXIMATELY 80 % OF THE COST OF THE PROGRAM; THE REMAINING
20% IS DISTRIBUTED AMONG THE LOCAL SCHOOL DISTRICTS UNDER THE LOCAL
FUND ASSIGNMENT.  /23/  EACH DISTRICT'S SHARE OF THE LOCAL FUND
ASSIGNMENT IS DETERMINED BY A COMPLEX "ECONOMIC INDEX" WHICH IS
DESIGNED TO ALLOCATE A LARGER SHARE OF THE COSTS TO PROPERTY-RICH
DISTRICTS THAN TO PROPERTY-POOR DISTRICTS.  /24/ 

[[HC78'(ORIGINAL DOCUMENT PAGE 78)'  EACH DISTRICT PAYS ITS SHARE
WITH REVENUES DERIVED FROM LOCAL PROPERTY TAXATION. 

THE STATED PURPOSE OF THE MINIMUM FOUNDATION SCHOOL PROGRAM IS TO
PROVIDE CERTAIN BASIC FUNDING FOR EACH LOCAL TEXAS SCHOOL DISTRICT. 
/25/  AT THE SAME TIME, THE PROGRAM WAS APPARENTLY INTENDED TO IMPROVE,
TO SOME DEGREE, THE FINANCIAL POSITION OF PROPERTY-POOR DISTRICTS
RELATIVE TO PROPERTY-RICH DISTRICTS, SINCE--THROUGH THE USE OF THE
ECONOMIC INDEX--AN EFFORT IS MADE TO CHARGE A DISPROPORTIONATE SHARE OF
THE COSTS OF THE PROGRAM TO RICH DISTRICTS.  /26/  IT BEARS NOTING,
HOWEVER, THAT SUBSTANTIAL CRITICISM HAS BEEN LEVELED AT THE PRACTICAL
EFFECTIVENESS OF THE ECONOMIC INDEX SYSTEM OF LOCAL COST ALLOCATION. 
/27/  IN THEORY, THE INDEX IS DESIGNED TO ASCERTAIN THE RELATIVE
ABILITY OF EACH DISTRICT TO CONTRIBUTE TO THE LOCAL FUND ASSIGNMENT
FROM LOCAL PROPERTY TAXES.  YET THE INDEX IS NOT DEVELOPED SIMPLY ON
THE BASIS OF EACH DISTRICT'S TAXABLE WEALTH.  IT ALSO TAKES INTO
ACCOUNT THE DISTRICT'S RELATIVE INCOME FROM MANUFACTURING, MINING, AND
AGRICULTURE, ITS PAYROLLS, AND ITS SCHOLASTIC POPULATION.  /28/  IT IS
DIFFICULT TO DISCERN PRECISELY HOW THESE LATTER FACTORS ARE PREDICTIVE
OF A DISTRICT'S RELATIVE ABILITY TO RAISE REVENUES THROUGH LOCAL
PROPERTY TAXES. 

[[HC79'(ORIGINAL DOCUMENT PAGE 79)'  THUS, IN 1966, ONE OF THE
CONSULTANTS WHO ORIGINALLY PARTICIPATED IN THE DEVELOPMENT OF THE TEXAS
ECONOMIC INDEX ADOPTED IN 1949 TOLD THE GOVERNOR'S COMMITTEE ON PUBLIC
SCHOOL EDUCATION:  "THE ECONOMIC INDEX APPROACH TO EVALUATING LOCAL
ABILITY OFFERS A LITTLE BETTER MEASURE THAN SHEER CHANCE, BUT NOT
MUCH."  /29/ 

MOREOVER, EVEN PUTTING ASIDE THESE CRITICISMS OF THE ECONOMIC INDEX
AS A DEVICE FOR ACHIEVING MEANINGFUL DISTRICT WEALTH EQUALIZATION
THROUGH COST ALLOCATION, POOR DISTRICTS STILL DO NOT NECESSARILY
RECEIVE MORE STATE AID THAN PROPERTY-RICH DISTRICTS.  FOR THE STANDARDS
WHICH CURRENTLY DETERMINE THE AMOUNT RECEIVED FROM THE FOUNDATION
SCHOOL PROGRAM BY ANY PARTICULAR DISTRICT /30/  FAVOR PROPERTY-RICH
DISTRICTS.  /31/  THUS, FOCUSING ON THE SAME EDGEWOOD INDEPENDENT AND
ALAMO HEIGHTS SCHOOL DISTRICTS WHICH THE MAJORITY USES FOR PURPOSES OF
ILLUSTRATION, WE FIND THAT IN 1967 - 1968 PROPERTY-RICH ALAMO HEIGHTS,
/32/  WHICH RAISED $333 PER PUPIL ON AN EQUALIZED TAX RATE OF 85[ PER
$100 VALUATION, RECEIVED $225 PER PUPIL FROM THE FOUNDATION SCHOOL
PROGRAM, WHILE PROPERTY-POOR EDGEWOOD, /33/  WHICH RAISED ONLY $26 PER
PUPIL WITH AN EQUALIZED TAX RATE OF $1.05 PER $100 VALUATION, RECEIVED
ONLY $222 PER PUPIL FROM THE FOUNDATION SCHOOL PROGRAM.  /34/  AND,
MORE RECENT DATA, WHICH INDICATE THAT FOR THE 1970 - 1971 SCHOOL YEAR
ALAMO HEIGHTS RECEIVED $491 PER PUPIL FROM THE PROGRAM WHILE EDGEWOOD
RECEIVED ONLY $356 PER PUPIL HARDLY SUGGEST THAT THE WEALTH GAP BETWEEN
THE DISTRICTS IS BEING NARROWED BY THE STATE PROGRAM. 

[[HC80'(ORIGINAL DOCUMENT PAGE 80)'  TO THE CONTRARY, WHEREAS IN
1967 - 1968 ALAMO HEIGHTS RECEIVED ONLY $3 PER PUPIL, OR ABOUT 1%, MORE
THAN EDGEWOOD IN STATE AID, BY 1970 - 1971 THE GAP HAD WIDENED TO A
DIFFERENCE OF $135 PER PUPIL, OR ABOUT 38%.  /35/ 

[[HC81'(ORIGINAL DOCUMENT PAGE 81)'  IT WAS DATA OF THIS CHARACTER
THAT PROMPTED THE DISTRICT COURT TO OBSERVE THAT "THE CURRENT (STATE
AID) SYSTEM TENDS TO SUBSIDIZE THE RICH AT THE EXPENSE OF THE POOR,
RATHER THAN THE OTHER WAY AROUND."  /36/  337 F. SUPP. 280, 282.  AND
EVEN THE APPELLANTS GO NO FURTHER HERE THAN TO VENTURE THAT THE MINIMUM
FOUNDATION SCHOOL PROGRAM HAS "A MILDLY EQUALIZING EFFECT."  /37/ 

DESPITE THESE FACTS, THE MAJORITY CONTINUALLY EMPHASIZES HOW MUCH
STATE AID HAS, IN RECENT YEARS, BEEN GIVEN TO PROPERTY-POOR TEXAS
SCHOOL DISTRICTS.  WHAT THE COURT FAILS TO EMPHASIZE IS THE CRUEL IRONY
OF HOW MUCH MORE STATE AID IS BEING GIVEN TO PROPERTY-RICH TEXAS SCHOOL
DISTRICTS ON TOP OF THEIR ALREADY SUBSTANTIAL LOCAL PROPERTY TAX
REVENUES.  /38/ 

[[HC82'(ORIGINAL DOCUMENT PAGE 82)'  UNDER ANY VIEW, THEN, IT IS
APPARENT THAT THE STATE AID PROVIDED BY THE FOUNDATION SCHOOL PROGRAM
FAILS TO COMPENSATE FOR THE LARGE FUNDING VARIATIONS ATTRIBUTABLE TO
THE LOCAL PROPERTY TAX ELEMENT OF THE TEXAS FINANCING SCHEME.  AND IT
IS THESE STARK DIFFERENCES IN THE TREATMENT OF TEXAS SCHOOL DISTRICTS
AND SCHOOL CHILDREN INHERENT IN THE TEXAS FINANCING SCHEME, NOT THE
ABSOLUTE AMOUNT OF STATE AID PROVIDED TO ANY PARTICULAR SCHOOL
DISTRICT, THAT ARE THE CRUX OF THIS CASE.  THERE CAN, MOREOVER, BE NO
ESCAPING THE CONCLUSION THAT THE LOCAL PROPERTY TAX WHICH IS DEPENDENT
UPON TAXABLE DISTRICT PROPERTY WEALTH IS AN ESSENTIAL FEATURE OF THE
TEXAS SCHEME FOR FINANCING PUBLIC EDUCATION.  /39/

        B 

THE APPELLANTS DO NOT DENY THE DISPARITIES IN EDUCATIONAL FUNDING
CAUSED BY VARIATIONS IN TAXABLE DISTRICT PROPERTY WEALTH.  THEY DO
CONTEND, HOWEVER, THAT WHATEVER THE DIFFERENCES IN PER-PUPIL SPENDING
AMONG TEXAS DISTRICTS, THERE ARE NO DISCRIMINATORY CONSEQUENCES FOR THE
CHILDREN OF THE DISADVANTAGED DISTRICTS.  THEY RECOGNIZE THAT WHAT IS
AT STAKE IN THIS CASE IS THE QUALITY OF THE PUBLIC EDUCATION PROVIDED
TEXAS CHILDREN IN THE DISTRICTS IN WHICH THEY LIVE.  BUT APPELLANTS
REJECT THE SUGGESTION THAT THE QUALITY OF EDUCATION IN ANY PARTICULAR
DISTRICT IS DETERMINED BY MONEY--BEYOND SOME MINIMAL LEVEL OF FUNDING
WHICH THEY BELIEVE TO BE ASSURED EVERY TEXAS DISTRICT BY THE MINIMUM
FOUNDATION SCHOOL PROGRAM.     [[HC83'(ORIGINAL DOCUMENT PAGE 83)'  IN
THEIR VIEW, THERE IS SIMPLY NO DENIAL OF EQUAL EDUCATIONAL OPPORTUNITY
TO ANY TEXAS SCHOOLCHILDREN AS A RESULT OF THE WIDELY VARYING PER-PUPIL
SPENDING POWER PROVIDED DISTRICTS UNDER THE CURRENT FINANCING SCHEME. 

IN MY VIEW, THOUGH, EVEN AN UNADORNED RESTATEMENT OF THIS CONTENTION
IS SUFFICIENT TO REVEAL ITS ABSURDITY.  AUTHORITIES CONCERNED WITH
EDUCATIONAL QUALITY NO DOUBT DISAGREE AS TO THE SIGNIFICANCE OF
VARIATIONS IN PER-PUPIL SPENDING.  /40/  INDEED, CONFLICTING EXPERT
TESTIMONY WAS PRESENTED TO THE DISTRICT COURT IN THIS CASE CONCERNING
THE EFFECT OF SPENDING VARIATIONS ON EDUCATIONAL ACHIEVEMENT.  /41/  WE
SIT, HOWEVER, NOT TO RESOLVE DISPUTES OVER EDUCATIONAL THEORY BUT TO
ENFORCE OUR CONSTITUTION.  IT IS AN INESCAPABLE FACT THAT IF ONE
DISTRICT HAS MORE FUNDS AVAILABLE PER PUPIL THAN ANOTHER DISTRICT, THE
FORMER WILL HAVE GREATER CHOICE IN EDUCATIONAL PLANNING THAN WILL THE
LATTER.  IN THIS REGARD, I BELIEVE THE QUESTION OF DISCRIMINATION IN
EDUCATIONAL QUALITY MUST BE DEEMED TO BE AN OBJECTIVE ONE THAT LOOKS TO
WHAT THE STATE PROVIDES ITS CHILDREN, NOT TO WHAT THE CHILDREN ARE ABLE
TO DO WITH WHAT THEY RECEIVE. 

[[HC84'(ORIGINAL DOCUMENT PAGE 84)'  THAT A CHILD FORCED TO ATTEND
AN UNDERFUNDED SCHOOL WITH POORER PHYSICAL FACILITIES, LESS EXPERIENCED
TEACHERS, LARGER CLASSES, AND A NARROWER RANGE OF COURSES THAN A SCHOOL
WITH SUBSTANTIALLY MORE FUNDS--AND THUS WITH GREATER CHOICE IN
EDUCATIONAL PLANNING--MAY NEVERTHELESS EXCEL IS TO THE CREDIT OF THE
CHILD, NOT THE STATE, CF. MISSOURI EX REL.  GAINES V. CANADA, 305 U.S.
337, 349 (1938).  INDEED, WHO CAN EVER MEASURE FOR SUCH A CHILD THE
OPPORTUNITIES LOST AND THE TALENTS WASTED FOR WANT OF A BROADER, MORE
ENRICHED EDUCATION?  DISCRIMINATION IN THE OPPORTUNITY TO LEARN THAT IS
AFFORDED A CHILD MUST BE OUR STANDARD. 

HENCE, EVEN BEFORE THIS COURT RECOGNIZED ITS DUTY TO TEAR DOWN THE
BARRIERS OF STATE-ENFORCED RACIAL SEGREGATION IN PUBLIC EDUCATION, IT
ACKNOWLEDGED THAT INEQUALITY IN THE EDUCATIONAL FACILITIES PROVIDED TO
STUDENTS MAY BE DISCRIMINATORY STATE ACTION AS CONTEMPLATED BY THE
EQUAL PROTECTION CLAUSE.  AS A BASIS FOR STRIKING DOWN STATE-ENFORCED
SEGREGATION OF A LAW SCHOOL, THE COURT IN SWEATT V. PAINTER, 339 U.S.
629, 633 - 634 (1950), STATED: 

"(WE CANNOT FIND SUBSTANTIAL EQUALITY IN THE EDUCATIONAL
OPPORTUNITIES OFFERED WHITE AND NEGRO LAW STUDENTS BY THE STATE.  IN
TERMS OF NUMBER OF THE FACULTY, VARIETY OF COURSES AND OPPORTUNITY FOR
SPECIALIZATION, SIZE OF THE STUDENT BODY, SCOPE OF THE LIBRARY,
AVAILABILITY OF LAW REVIEW AND SIMILAR ACTIVITIES, THE (WHITES-ONLY)
LAW SCHOOL IS SUPERIOR.  . . . IT IS DIFFICULT TO BELIEVE THAT ONE WHO
HAD A FREE CHOICE BETWEEN THESE LAW SCHOOLS WOULD CONSIDER THE QUESTION
CLOSE."  SEE ALSO MCLAURIN V. OKLAHOMA STATE REGENTS FOR HIGHER
EDUCATION, 339 U.S. 637 (1950). 

[[HC85'(ORIGINAL DOCUMENT PAGE 85)'  LIKEWISE, IT IS DIFFICULT TO
BELIEVE THAT IF THE CHILDREN OF TEXAS HAD A FREE CHOICE, THEY WOULD
CHOOSE TO BE EDUCATED IN DISTRICTS WITH FEWER RESOURCES, AND HENCE WITH
MORE ANTIQUATED PLANTS, LESS EXPERIENCED TEACHERS, AND A LESS
DIVERSIFIED CURRICULUM.  IN FACT, IF FINANCING VARIATIONS ARE SO
INSIGNIFICANT TO EDUCATIONAL QUALITY, IT IS DIFFICULT TO UNDERSTAND WHY
A NUMBER OF OUR COUNTRY'S WEALTHIEST SCHOOL DISTRICTS, WHICH HAVE NO
LEGAL OBLIGATION TO ARGUE IN SUPPORT OF THE CONSTITUTIONALITY OF THE
TEXAS LEGISLATION, HAVE NEVERTHELESS ZEALOUSLY PURSUED ITS CAUSE BEFORE
THIS COURT.  /42/ 

THE CONSEQUENCES, IN TERMS OF OBJECTIVE EDUCATIONAL INPUT, OF THE
VARIATIONS IN DISTRICT FUNDING CAUSED BY THE TEXAS FINANCING SCHEME ARE
APPARENT FROM THE DATA INTRODUCED BEFORE THE DISTRICT COURT.  FOR
EXAMPLE, IN 1968 - 1969, 100% OF THE TEACHERS IN THE PROPERTY-RICH
ALAMO HEIGHTS SCHOOL DISTRICT HAD COLLEGE DEGREES.  /43/  BY CONTRAST,
DURING THE SAME SCHOOL YEAR ONLY 80.02% OF THE TEACHERS HAD COLLEGE
DEGREES IN THE PROPERTY POOR EDGEWOOD INDEPENDENT SCHOOL DISTRICT. 
/44/  ALSO, IN 1968 - 1969, APPROXIMATELY 47% OF THE TEACHERS IN THE
EDGEWOOD DISTRICT WERE ON EMERGENCY TEACHING PERMITS, WHEREAS ONLY 11%
OF THE TEACHERS IN ALAMO HEIGHTS WERE ON SUCH PERMITS.  /45/  THIS IS
UNDOUBTEDLY A REFLECTION OF THE FACT THAT THE TOP OF EDGEWOOD'S TEACHER
SALARY SCALE WAS APPROXIMATELY 80% OF ALAMO HEIGHTS'.  /46/  AND, NOT
SURPRISINGLY, THE TEACHER-STUDENT RATIO VARIES SIGNIFICANTLY BETWEEN
THE TWO DISTRICTS.  /47/ 

[[HC86'(ORIGINAL DOCUMENT PAGE 86)'  IN OTHER WORDS, AS MIGHT BE
EXPECTED, A DIFFERENCE IN THE FUNDS AVAILABLE TO DISTRICTS RESULTS IN A
DIFFERENCE IN EDUCATIONAL INPUTS AVAILABLE FOR A CHILD'S PUBLIC
EDUCATION IN TEXAS.  FOR CONSTITUTIONAL PURPOSES, I BELIEVE THIS
SITUATION, WHICH IS DIRECTLY ATTRIBUTABLE TO THE TEXAS FINANCING
SCHEME, RAISES A GRAVE QUESTION OF STATE-CREATED DISCRIMINATION IN THE
PROVISION OF PUBLIC EDUCATION.  CF. GASTON COUNTY V. UNITED STATES, 395
U.S. 285, 293 - 294 (1969). 

AT THE VERY LEAST, IN VIEW OF THE SUBSTANTIAL INTERDISTRICT
DISPARITIES IN FUNDING AND IN RESULTING EDUCATIONAL INPUTS SHOWN BY
APPELLEES TO EXIST UNDER THE TEXAS FINANCING SCHEME, THE BURDEN OF
PROVING THAT THESE DISPARITIES DO NOT IN FACT AFFECT THE QUALITY OF
CHILDREN'S EDUCATION MUST FALL UPON THE APPELLANTS.  CF. HOBSON V.
HANSEN, 327 F. SUPP. 844, 860 - 861 (DC 1971).  YET APPELLANTS MADE NO
EFFORT IN THE DISTRICT COURT TO DEMONSTRATE THAT EDUCATIONAL QUALITY IS
NOT AFFECTED BY VARIATIONS IN FUNDING AND IN RESULTING INPUTS.  AND, IN
THIS COURT, THEY HAVE ARGUED NO MORE THAN THAT THE RELATIONSHIP IS
AMBIGUOUS.  THIS IS HARDLY SUFFICIENT TO OVERCOME APPELLEES' PRIMA
FACIE SHOWING OF STATE-CREATED DISCRIMINATION BETWEEN THE SCHOOL
CHILDREN OF TEXAS WITH RESPECT TO OBJECTIVE EDUCATIONAL OPPORTUNITY. 

NOR CAN I ACCEPT THE APPELLANTS' APPARENT SUGGESTION THAT THE TEXAS
MINIMUM FOUNDATION SCHOOL PROGRAM EFFECTIVELY ERADICATES ANY
DISCRIMINATORY EFFECTS OTHERWISE RESULTING FROM THE LOCAL PROPERTY TAX
ELEMENT OF THE TEXAS FINANCING SCHEME.  APPELLANTS ASSERT THAT, DESPITE
ITS IMPERFECTIONS, THE PROGRAM "DOES GUARANTEE AN ADEQUATE EDUCATION TO
EVERY CHILD."  /48/ 

[[HC87'(ORIGINAL DOCUMENT PAGE 87)'  THE MAJORITY, IN CONSIDERING
THE CONSTITUTIONALITY OF THE TEXAS FINANCING SCHEME, SEEMS TO FIND
SUBSTANTIAL MERIT IN THIS CONTENTION, FOR IT TELLS US THAT THE
FOUNDATION PROGRAM "WAS DESIGNED TO PROVIDE AN ADEQUATE MINIMUM
EDUCATIONAL OFFERING IN EVERY SCHOOL IN THE STATE," ANTE, AT 45, AND
THAT THE PROGRAM "ASSURES) A BASIC EDUCATION FOR EVERY CHILD," ANTE, AT
49.  BUT I FAIL TO UNDERSTAND HOW THE CONSTITUTIONAL PROBLEMS INHERENT
IN THE FINANCING SCHEME ARE EASED BY THE FOUNDATION PROGRAM.  INDEED,
THE PRECISE THRUST OF THE APPELLANTS' AND THE COURT'S REMARKS ARE NOT
ALTOGETHER CLEAR TO ME. 

THE SUGGESTION MAY BE THAT THE STATE AID RECEIVED VIA THE FOUNDATION
PROGRAM SUFFICIENTLY IMPROVES THE POSITION OF PROPERTY-POOR DISTRICTS
VIS-A-VIS PROPERTY-RICH DISTRICTS--IN TERMS OF EDUCATIONAL FUNDS--TO
ELIMINATE ANY CLAIM OF INTERDISTRICT DISCRIMINATION IN AVAILABLE
EDUCATIONAL RESOURCES WHICH MIGHT OTHERWISE EXIST IF EDUCATIONAL
FUNDING WERE DEPENDENT SOLELY UPON LOCAL PROPERTY TEXATION.  CERTAINLY
THE COURT HAS RECOGNIZED THAT TO DEMAND PRECISE EQUALITY OF TREATMENT
IS NORMALLY UNREALISTIC, AND THUS MINOR DIFFERENCES INHERENT IN ANY
PRACTICAL CONTEXT USUALLY WILL NOT MAKE OUT A SUBSTANTIAL EQUAL
PROTECTION CLAIM.  SEE, E. G., MAYER V. CITY OF CHICAGO, 404 U.S. 189,
194 - 195 (1971); DRAPER V. WASHINGTON, 372 U.S. 487, 495 - 496 (1963);
BAIN PEANUT CO. V. PINSON, 282 U.S. 499, 501 (1931).  BUT AS HAS
ALREADY BEEN SEEN, WE ARE HARDLY PRESENTED HERE WITH SOME DE MINIMIS
CLAIM OF DISCR MINATION RESULTING FROM THE PLAY NECESSARY IN ANY
FUNCTIONING SYSTEM; TO THE CONTRARY, IT IS CLEAR THAT THE FOUNDATION
PROGRAM UTTERLY FAILS TO AMELIORATE THE SERIOUSLY DISCRIMINATORY
EFFECTS OF THE LOCAL PROPERTY TAX.  /49/ 

ALTERNATIVELY, THE APPELLANTS AND THE MAJORITY MAY BELIEVE THAT THE
EQUAL PROTECTION CLAUSE CANNOT BE OFFENDED B[ SUBSTANTIALLY UNEQUAL
STATE TREATMENT OF PERSONS WHO ARE SIMILARLY SITUATED SO LONG AS THE
STATE PROVIDES EVERYONE WITH SOME UNSPECIFIED AMOUNT OF EDUCATION WHICH
EVIDENTLY IS "ENOUGH."  /50/ 

[[HC88'(ORIGINAL DOCUMENT PAGE 88)'  THE BASIS FOR SUCH A NOVEL VIEW
IS FAR FROM CLEAR.  IT IS, OF COURSE, TRUE THAT THE CONSTITUTION DOES
NOT REQUIRE PRECTSE EQUALITY IN THE TREATMENT OF ALL PERSONS.  AS MR.
JUSTICE FRANKFURTER EXPLAINED: 

"THE EQUALITY AT WHICH THE 'EQUAL PROTECTION' CLAUSE AIMS IS NOT A
DISEMBODIED EQUALITY.  THE FOURTEENTH AMENDMENT ENJOINS 'THE EQUAL
PROTECTION OF THE LAWS,' AND LAWS ARE NOT ABSTRACT PROPOSITIONS.  . . .
THE CONSTITUTION DOES NOT REQUIRE THINGS WHICH ARE DIFFERENT IN FACT OR
OPINION TO BE TREATED IN LAW AS THOUGH THEY WERE THE SAME."  TIGNER V.
TEXAS, 310 U.S. 141, 147 (1940).  SEE ALSO DOUGLAS V. CALIFORNIA, 372
U.S. 353, 357 (1963); GOESAERT V. CLEARY, 335 U.S. 464, 466 (1948). 
BUT THIS COURT HAS NEVER SUGGESTED THAT BECAUSE SOME "ADEQUATE" LEVEL
OF BENEFITS IS PROVIDED TO ALL, DISCRIMINATION IN THE PROVISION OF
SERVICES IS THEREFORE CONSTITUTIONALLY EXCUSABLE. 

[[HC89'(ORIGINAL DOCUMENT PAGE 89)'  THE EQUAL PROTECTION CLAUSE IS
NOT ADDRESSED TO THE MINIMAL SUFFICIENCY BUT RATHER TO THE
UNJUSTIFIABLE INEQUALITIES OF STATE ACTION.  IT MANDATES NOTHING LESS
THAN THAT "ALL PERSONS SIMILARLY CIRCUMSTANCED SHALL BE TREATED
ALIKE."  F. S. ROYSTER GUANO CO. V. VIRGINIA, 253 U.S. 412, 415
(1920). 

EVEN IF THE EQUAL PROTECTION CLAUSE ENCOMPASSED SOME THEORY OF
CONSTITUTIONAL ADEQUACY, DISCRIMINATION IN THE PROVISION OF EDUCATIONAL
OPPORTUNITY WOULD CERTAINLY SEEM TO BE A POOR CANDIDATE FOR ITS
APPLICATION.  NEITHER THE MAJORITY NOR APPELLANTS INFORM US HOW
JUDICALLY MANAGEABLE STANDARDS ARE TO BE DERIVED FOR DETERMINING HOW
MUCH EDUCATION IS "ENOUGH" TO EXCUSE CONSTITUTIONAL DISCRIMINATION. 
ONE WOULD THINK THAT THE MAJORITY WOULD HEED ITS OWN FERVENT
AFFIRMATION OF JUDICIAL SELF-RESTRAINT BEFORE UNDERTAKING THE COMPLEX
TASK OF DETERMINING AT LARGE WHAT LEVEL OF EDUCATION IS
CONSTITUTIONALLY SUFFICIENT.  INDEED, THE MAJORITY'S APPARENT RELIANCE
UPON THE ADEQUACY OF THE EDUCATIONAL OPPORTUNITY ASSURED BY THE TEXAS
MINIMUM FOUNDATION SCHOOL PROGRAM SEEMS FUNDAMENTALLY INCONSISTENT WITH
ITS OWN RECOGNITION THAT EDUCATIONAL AUTHORITIES ARE UNABLE TO AGREE
UPON WHAT MAKES FOR EDUCATIONAL QUALITY, SEE ANTE, AT 42 - 43 AND N. 86
AND AT 47 N. 101.  IF, AS THE MAJORITY STRESSES, SUCH AUTHORITIES ARE
UNCERTAIN AS TO THE IMPACT OF VARIOUS LEVELS OF FUNDING ON EDUCATIONAL
QUALITY, I FAIL TO SEE WHERE IT FINDS THE EXPERTISE TO DIVINE THAT THE
PARTICULAR LEVELS OF FUNDING PROVIDED BY THE PROGRAM ASSURE AN ADEQUATE
EDUCATIONAL OPPORTUNITY--MUCH LESS AN EDUCATION SUBSTANTIALLY
EQUIVALENT IN QUALITY TO THAT WHICH A HIGHER LEVEL OF FUNDING MIGHT
PROVIDE.  CERTAINLY APPELLANTS' MERE ASSERTION BEFORE THIS COURT OF THE
ADEQUACY OF THE EDUCATION GUARANTEED BY THE MINIMUM FOUNDATION SCHOOL
PROGRAM CANNOT OBSCURE THE CONSTITUTIONAL IMPLICATIONS OF THE
DISCRIMINATION IN EDUCATIONAL FUNDING AND OBJECTIVE EDUCATIONAL INPUTS
RESULTING FROM THE LOCAL PROPERTY TAX--PARTICULARLY SINCE THE APPELLEES
OFFERED SUBSTANTIAL UNCONTROVERTED EVIDENCE BEFORE THE DISTRICT COURT
IMPUGNING THE NOW MUCH-TOUTED "ADEQUACY" OF THE EDUCATION GUARANTEED BY
THE FOUNDATION PROGRAM.  /51/ 

IN MY VIEW, THEN, IT IS INEQUALITY--NOT SOME NOTION OF GROSS
INADEQUACY--OF EDUCATIONAL OPPORTUNITY THAT RAISES A QUESTION OF DENIAL
OF EQUAL PROTECTION OF THE LAWS. 

[[HC90'(ORIGINAL DOCUMENT PAGE 90)'  I FIND ANY OTHER APPROACH TO
THE ISSUE UNINTELLIGIBLE AND WITHOUT DIRECTING PRINCIPLE.  HERE
APPELLEES HAVE MADE A SUBSTANTIAL SHOWING OF WIDE VARIATIONS IN
EDUCATIONAL FINDING AND THE RESULTING EDUCATIONAL OPPORTUNITY AFFORDED
TO THE SCHOOL CHILDREN OF TEXAS.  THIS DISCRIMINATION IS, IN LARGE
MEASURE, ATTRIBUTABLE TO SIGNIFICANT DISPARITIES IN THE TAXABLE WEALTH
OF LOCAL TEXAS SCHOOL DISTRICTS.  THIS IS A SUFFICIENT SHOWING TO RAISE
A SUBSTANTIAL QUESTION OF DISCRIMINATORY STATE ACTION IN VIOLATION OF
THE EQUAL PROTECTION CLAUSE.  /52/

        C 

DESPITE THE EVIDENT DISCRIMINATORY EFFECT OF THE TEXAS FINANCING
SCHEME, BOTH THE APPELLANTS AND THE MAJORITY RAISE SUBSTANTIAL
QUESTIONS CONCERNING THE PRECISE CHARACTER OF THE DISADVANTAGED CLASS
IN THIS CASE. 

[[HC91'(ORIGINAL DOCUMENT PAGE 91)'  THE DISTRICT COURT CONCLUDED
THAT THE TEXAS FINANCING SCHEME DRAWS "DISTINCTION BETWEEN GROUPS OF
CITIZENS DEPENDING UPON THE WEALTH OF THE DISTRICT IN WHICH THEY LIVE"
AND THUS CREATES A DISADVANTAGED CLASS COMPOSED OF PERSONS LIVING IN
PROPERTY-POOR DISTRICTS.  SEE 337 F. SUPP., AT 282.  SEE ALSO ID., AT
281.  IN LIGHT OF THE DATA INTRODUCED BEFORE THE DISTRICT COURT, THE
CONCLUSION THAT THE SCHOOLCHILDREN OF PROPERTY-POOR DISTRICTS
CONSTITUTE A SUFFICIENT CLASS FOR OUR PURPOSES SEEMS INDISPUTABLE TO
ME. 

APPELLANTS CONTEND, HOWEVER, THAT IN CONSTITUTIONAL TERMS THIS CASE
INVOLVES NOTHING MORE THAN DISCRIMINATION AGAINST LOCAL SCHOOL
DISTRICTS, NOT AGAINST INDIVIDUALS, SINCE ON ITS FACE THE STATE SCHEME
IS CONCERNED ONLY WITH THE PROVISION OF FUNDS TO LOCAL DISTRICTS.  THE
RESULT OF THE TEXAS FINANCING SCHEME, APPELLANTS SUGGEST, IS MERELY
THAT SOME LOCAL DISTRICTS HAVE MORE AVAILABLE REVENUES FOR EDUCATION;
OTHERS HAVE LESS.  IN THAT RESPECT, THEY POINT OUT, THE STATES HAVE
BROAD DISCRETION IN DRAWING REASONABLE DISTINCTIONS BETWEEN THEIR
POLITICAL SUBDIVISIONS.  SEE GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE
EDWARD COUNTY, 377 U.S. 218, 231 (1964); MCGOWAN V. MARYLAND, 366 U.S.
420, 427 (1961); SALSBURG V. MARYLAND, 346 U.S. 545, 550 - 554 (1954). 
[[HC92'(ORIGINAL DOCUMENT PAGE 92)' 

BUT THIS COURT HAS CONSISTENTLY RECOGNIZED THAT WHERE THERE IS IN
FACT DISCRIMINATION AGAINST INDIVIDUAL INTERESTS, THE CONSTITUTIONAL
GUARANTEE OF EQUAL PROTECTION OF THE LAWS IS NOT INAPPLICABLE SIMPLY
BECAUSE THE DISCRIMINATION IS BASED UPON SOME GROUP CHARACTERISTIC SUCH
AS GEOGRAPHIC LOCATION.  SEE GORDON V. LANCE, 403 U.S. 1, 4 (1971);
REYNOLDS V. SIMS, 377 U.S. 533, 565 - 566 (1964); GRAY V. SANDERS 372
U.S. 368, 379 (1963).  TEXAS HAS CHOSEN TO PROVIDE FREE PUBLIC
EDUCATION FOR ALL ITS CITIZENS, AND IT HAS EMBODIED THAT DECISION IN
ITS CONSTITUTION.  /53/  YET, HAVING ESTABLISHED PUBLIC EDUCATION FOR
ITS CITIZENS,.THE STATE, AS A DIRECT CONSEQUENCE OF THE VARIATIONS IN
LOCAL PROPERTY WEALTH ENDEMIC TO TEXAS' FINANCE SCHEME, HAS PROVIDED
SOME TEXAS SCHOOLCHILDREN WITH SUBSTANTIALLY LESS RESOURCES FOR THEIR
EDUCATION THAN OTHERS.  THUS, WHILE ON ITS FACE THE TEXAS SCHEME MAY
MERELY DISCRIMINATE BETWEEN LOCAL DISTRICTS, THE IMPACT OF THAT
DISCRIMINATION FALLS DIRECTLY UPON THE CHILDREN WHOSE EDUCATIONAL
OPPORTUNITY IS DEPENDENT UPON WHERE THEY HAPPEN TO LIVE.  CONSEQUENTLY,
THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE TEXAS FINANCING SCHEME
DISCRIMINATES, FROM A CONSTITUTIONAL PERSPECTIVE, BETWEEN
SCHOOLCHILDREN ON THE BASIS OF THE AMOUNT OF TAXABLE PROPERTY LOCATED
WITHIN THEIR LOCAL DISTRICTS. 

IN MY BROTHER STEWART'S VIFW, HOWEVER, SUCH A DESCRIPTION OF THE
DISCRIMINATION INHERENT IN THE CASE IS APPARENTLY NOT SUFFICIENT, FOR
IT FAILS TO DEFINE THE "KIND OF OBJECTIVELY IDENTIFIABLE CLASSES" THAT
HE EVIDENTLY PERCEIVES TO BE NECESSARY FOR A CLAIM TO BE "COGNIZABLE
UNDER THE EQUAL PROTECTION CLAUSE," ANTE, AT 62.  HE ASSERTS THAT THIS
IS ALSO THE VIEW OF THE MAJORITY, BUT HE IS UNABLE TO CITE, NOR HAVE I
BEEN ABLE TO FIND, ANY PORTION OF THE COURT'S OPINION WHICH REMOTELY
SUGGESTS THAT THERE IS NO OBJECTIVELY IDENTIFIABLE OR DEFINABLE CLASS
IN THIS CASE. 

[[HC93'(ORIGINAL DOCUMENT PAGE 93)'  IN ANY EVENT, IF HE MEANS TO
SUGGEST THAT AN ESSENTIAL PREDICATE TO EQUAL PROTECTION ANALYSIS IS THE
PRECISE IDENTIFICATION OF THE PARTICULAR INDIVIDUALS WHO COMPOSE THE
DISADVANTAGED CLASS, I FAIL TO FIND THE SOURCE FROM WHICH HE DERIVES
SUCH A REQUIREMENT.  CERTAINLY SUCH PRECISION IS NOT ANALYTICALLY
NECESSARY.  SO LONG AS THE BASIS OF THE DISCRIMINATION IS CLEARLY
IDENTIFIED, IT IS POSSIBLE TO TEST IT AGAINST THE STATE'S PURPOSE FOR
SUCH DISCRIMINATION--WHATEVER THE STANDARD OF EQUAL PROTECTION ANALYSIS
EMPLOYED.  /54/  THIS IS CLEAR FROM OUR DECISION ONLY LAST TERM IN
BULLOCK V. CARTER, 405 U.S. 134 (1972), WHERE THE COURT, IN STRIKING
DOWN TEXAS' PRIMARY FILING FEES AS FIOLATIVE OF EQUAL PROTECTION, FOUND
NO IMPEDIMENTS TO EQUAL PROTECTION ANALYSIS IN THE FACT THAT THE
MEMBERS OF THE DISADVANTAGED CLASS COULD NOT BE READILY IDENTIFIED. 
THE COURT RECOGNIZED THAT THE FILING-FEE SYSTEM TENDED "TO DENY SOME
VOTERS THE OPPORTUNITY TO VOTE FOR A CANDIDATE OF THEIR CHOOSING; AT
THE SAME TIME IT GIVES THE AFFLUENT THE POWER TO PLACE ON THE BALLOT
THEIR OWN NAMES OR THE NAMES OF PERSONS THEY FAVOR."  ID., AT 144.  THE
COURT ALSO RECOGNIZED THAT "(THIS DISPARITY IN VOTING POWER BASED ON
WEALTH CANNOT BE DESCRIBED BY REFERENCE TO DISCRETE AND PRECISELY
DEFINED SEGMENTS OF THE COMMUNITY AS IS TYPICAL OF INEQUITIES
CHALLENGED UNDER THE EQUAL PROTECTION CLAUSE . . . ."  IBID. 

[[HC94'(ORIGINAL DOCUMENT PAGE 94)'  NEVERTHELESS, IT CONCLUDED THAT
"WE WOULD IGNORE REALITY WERE WE NOT TO RECOGNIZE THAT THIS SYSTEM
FALLS WITH UNEQUAL WEIGHT ON VOTERS . . . ACCORDING TO THEIR ECONOMIC
STATUS."  IBID.  THE NATURE OF THE CLASSIFICATION IN BULLOCK WAS CLEAR,
ALTHOUGH THE PRECISE MEMBERSHIP OF THE DISADVANTAGED CLASS WAS NOT. 
THIS WAS ENOUGH IN BULLOCK FOR PURPOSES OF EQUAL PROTECTION ANALYSIS. 
IT IS ENOUGH HERE. 

IT MAY BE, THOUGH, THAT MY BROTHER STEWART IS NOT IN FACT DEMANDING
PRECISE IDENTIFICATION OF THE MEMBERSHIP OF THE DISADVANTAGED CLASS FOR
PURPOSES OF EQUAL PROTECTION ANALYSIS, BUT IS MERELY UNABLE TO DISCERN
WITH SUFFICIENT CLARITY THE NATURE OF THE DISCRIMINATION CHARGED IN
THIS CASE.  INDEED, THE COURT ITSELF DISPLAYS SOME UNCERTAINTY AS TO
THE EXACT NATURE OF THE DISCRIMINATION AND THE RESULTING DISADVANTAGED
CLASS ALLEGED TO EXIST IN THIS CASE.  SEE ANTE, AT 19 -20.  IT IS, OF
COURSE, ESSENTIAL TO EQUAL PROTECTION ANALYSIS TO HAVE A FIRM GRASP
UPON THE NATURE OF THE DISCRIMINATION AT ISSUE.  IN FACT, THE ABSENCE
OF SUCH A CLEAR, ARTICULABLE UNDERSTANDING OF THE NATURE OF ALLEGED
DISCRIMINATION IN A PARTICULAR INSTANCE MAY WELL SUGGEST THE ABSENCE OF
ANY REAL DISCRIMINATION.  BUT SUCH IS HARDLY THE CASE HERE. 

A NUMBER OF THEORIES OF DISCRIMINATION HAVE, TO BE SURE, BEEN
CONSIDERED IN THE COURSE OF THIS LITIGATION.  THUS, THE DISTRICT COURT
FOUND THAT IN TEXAS THE POOR AND MINORITY GROUP MEMBERS TEND TO LIVE IN
PROPERTY-POOR DISTRICTS, SUGGESTING DISCRIMINATION ON THE BASIS OF BOTH
PERSONAL WEALTH AND RACE.  SEE 337 F. SUPP., AT 282 AND N. 3.  THE
COURT GOES TO GREAT LENGTHS TO DISCREDIT THE DATA UPON WHICH THE
DISTRICT COURT RELIED, AND THEREBY ITS CONCLUSION THAT POOR PEOPLE LIVE
IN PROPERTY-POOR DISTRICTS.  /55/  ALTHOUGH I HAVE SERIOUS DOUBTS AS TO
THE CORRECTNESS OF THE COURT'S ANALYSIS IN REJECTING THE DATA SUBMITTED
BELOW, /56/  I HAVE NO NEED TO JOIN ISSUE ON THESE FACTUAL DISPUTES. 

[[HC95'(ORIGINAL DOCUMENT PAGE 95)' 

I BELIEVE IT IS SUFFICIENT THAT THE OVERARCHING FORM OF
DISCRIMINATION IN THIS CASE IS BETWEEN THE SCHOOLCHILDREN OF TEXAS ON
THE BASIS OF THE TAXABLE PROPERTY WEALTH OF THE DISTRICTS IN WHICH THEY
HAPPEN TO LIVE. 

[[HC96'(ORIGINAL DOCUMENT PAGE 96)'  TO UNDERSTAND BOTH THE PRECISE
NATURE OF THIS DISCRIMINATION AND THE PARAMETERS OF THE DISADVANTAGED
CLASS IT IS SUFFICIENT TO CONSIDER THE CONSTITUTIONAL PRINCIPLE WHICH
APPELLEES CONTEND IS CONTROLLING IN THE CONTEXT OF EDUCATIONAL
FINANCING.  IN THEIR COMPLAINT APPELLEES ASSERTED THAT THE CONSTITUTION
DOES NOT PERMIT LOCAL DISTRICT WEALTH TO BE DETERMINATIVE OF
EDUCATIONAL OPPORTUNITY.  /57/  THIS IS SIMPLY ANOTHER WAY OF SAYING,
AS THE DISTRICT COURT CONCLUDED, THAT CONSISTENT WITH THE GUARANTEE OF
EQUAL PROTECTION OF THE LAWS, "THE QUALITY OF PUBLIC EDUCATION MAY NOT
BE A FUNCTION OF WEALTH, OTHER THAN THE WEALTH OF THE STATE AS A
WHOLE."  337 F. SUPP., AT 284.  UNDER SUCH A PRINCIPLE, THE CHILDREN OF
A DISTRICT ARE EXCESSIVELY ADVANTAGED IF THAT DISTRICT HAS MORE TAXABLE
PROPERTY PER PUPIL THAN THE AVERAGE AMOUNT OF TAXABLE PROPERTY PER
PUPIL CONSIDERING THE STATE AS A WHOLE.  BY CONTRAST, THE CHILDREN OF A
DISTRICT ARE DISADVANTAGED IF THAT DISTRICT HAS LEEE TAXABLE PROPERTY
PER PUPIL THAN THE STATE AVERAGE.  THE MAJORITY ATTEMPTS TO DISPARAGE
SUCH A DEFINITION OF THE DISADVANTAGED CLASS AS THE PRODUCT OF AN
"ARTIFICIALLY DEFINED LEVEL" OF DISTRICT WEALTH.  ANTE, AT 28.  BUT
SUCH IS CLEARLY NOT THE CASE, FOR THIS IS THE DEFINITION UNMISTAKABLY
DICTATED BY THE CONSTITUTIONAL PRINCIPLE FOR WHICH APPELLEES HAVE
ARGUED THROUGHOUT THE COURSE OF THIS LITIGATION.  AND I DO NOT BELIEVE
THAT A CLEARER DEFINITION OF EITHER THE DISADVANTAGED CLASS OF TEXAS
SCHOOLCHILDREN OR THE ALLEGEDLY UNCONSTITUTIONAL DISCRIMINATION
SUFFERED BY THE MEMBERS OF THAT CLASS UNDER THE PRESENT TEXAS FINANCING
SCHEME COULD BE ASKED FOR, MUCH LESS NEEDED.  /58/ 

[[HC97'(ORIGINAL DOCUMENT PAGE 97)'  WHETHER THIS DISCRIMINATION,
AGAINST THE SCHOOLCHILDREN OF PROPERTY-POOR DISTRICTS, INHERENT IN THE
TEXAS FINANCING SCHEME, IS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE IS
THE QUESTION TO WHICH WE MUST NOW TURN. 

        II 

TO AVOID HAVING THE TEXAS FINANCING SCHEME STRUCK DOWN BECAUSE OF
THE INTERDISTRICT VARIATIONS IN TAXABLE PROPERTY WEALTH, THE DISTRICT
COURT DETERMINED THAT IT WAS INSUFFICIENT FOR APPELLANTS TO SHOW MERELY
THAT THE STATE'S SCHEME WAS RATIONALLY RELATED TO SOME LEGITIMATE STATE
PURPOSE; RATHER, THE DISCRIMINATION INHERENT IN THE SCHEME HAD TO BE
SHOWN NECESSARY TO PROMOTE A "COMPELLING STATE INTEREST" IN ORDER TO
WITHSTAND CONSTITUTIONAL SCRUTINY.  THE BASIS FOR THIS DETERMINATION
WAS TWOFOLD:  FIRST, THE FINANCING SCHEME DIVIDES CITIZENS ON A WEALTH
BASIS, A CLASSIFICATION WHICH THE DISTRICT COURT VIEWED AS HIGHLY
SUSPECT; AND SECOND, THE DISCRIMINATORY SCHEME DIRECTLY AFFECTS WHAT IT
CONSIDERED TO BE A "FUNDAMENTAL INTEREST," NAMELY, EDUCATION. 

THIS COURT HAS REPEATEDLY HELD THAT STATE DTSCRIMINATION WHICH
EITHER ADVERSELY AFFECTS A "FUNDAMENTAL INTEREST," SEE, E. G., DUNN V.
BLUMSTEIN, 405 U.S. 330, 336 - 342 (1972); SHAPIRO V. THOMPSON, 394
U.S. 618, 629 - 631 (1969), OR IS BASED ON A DISTINCTION OF A SUSPECT
CHARACTER, SEE, E. G., GRAHAM V. RICHARDSON, 403 U.S. 365, 372 (1971);
MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 191 - 192 (1964), MUST BE
CAREFULLY SCRUTINIZED TO ENSURE THAT THE SCHEME IS NECESSARY TO PROMOTE
A SUBSTANTIAL, LEGITIMATE STATE INTEREST.  SEE, E. G., DUNN V.
BLUMSTEIN, 405 U.S., AT 342 - 343; SHAPIRO V. THOMPSON, 394 U.S., AT
634. 

[[HC98'(ORIGINAL DOCUMENT PAGE 98)'  THE MAJORITY TODAY CONCLUDES,
HOWEVER, THAT THE TEXAS SCHEME IS NOT SUBJECT TO SUCH A STRICT STANDARD
OF REVIEW UNDER THE EQUAL PROTECTION CLAUSE.  INSTEAD, IN ITS VIEW, THE
TEXAS SCHEME MUST BE TESTED BY NOTHING MORE THAN THAT LENIENT STANDARD
OF RATIONALITY WHICH WE HAVE TRADITIONALLY APPLIED TO DISCRIMINATORY
STATE ACTION IN THE CONTEXT OF ECONOMIC AND COMMERCIAL MATTERS.  SEE,
E. G., MCGOWAN V. MARYLAND, 366 U.S., AT 425 - 426; MOREY V. DOUD, 354
U.S. 457, 465 - 466 (1957); F. S. ROYSTER GUANO CO. V. VIRGINIA, 253
U.S., AT 415; LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78 -
79 (1911).  BY SO DOING, THE COURT AVOIDS THE TELLING TASK OF SEARCHING
FOR A SUBSTANTIAL STATE INTEREST WHICH THE TEXAS FINANCING SCHEME, WITH
ITS VARIATIONS IN TAXABLE DISTRICT PROPERTY WEALTH, IS NECESSARY TO
FURTHER.  I CANNOT ACCEPT SUCH AN EMASCULATION OF THE EQUAL PROTECTION
CLAUSE IN THE CONTEXT OF THIS CASE. 

        A 

TO BEGIN, I MUST ONCE MORE VOICE MY DISAGREEMENT WITH THE COURT'S
RIGIFIED APPROACH TO EQUAL PROTECTION ANALYSIS.  SEE DANDRIDGE V.
WILLIAMS, 397 U.S. 471, 519 - 521 (1970) (DISSENTING OPINION);
RICHARDSON V. BELCHER, 404 U.S. 78, 90 (1971) (DISSENTING OPINION). 
THE COURT APPARENTLY SEEKS TO ESTABLISH TODAY THAT EQUAL PROTECTION
CASES FALL INTO ONE OF TWO NEAT CATEGORIES WHICH DICTATE THE
APPROPRIATE STANDARD OF REVIEW--STRICT SCRUTINY OR MERE RATIONALITY. 
BUT THIS COURT'S DECISIONS IN THE FIELD OF EQUAL PROTECTION DEFY SUCH
EASY CATEGORIZATION.  A PRINCIPLED READING OF WHAT THIS COURT HAS DONE
REVEALS THAT IT HAS APPLIED A SPECTRUM OF STANDARDS IN REVIEWING
DISCRIMINATION ALLEGEDLY VIOLATIVE OF THE EQUAL PROTECTION CLAUSE. 
THIS SPECTRUM CLEARLY COMPREHENDS VARIATIONS IN THE DEGREE OF CARE WITH
WHICH THE COURT WILL SCRUTINIZE PARTICULAR CLASSIFICATIONS, DEPENDING,
I BELIEVE, ON THE CONSTITUTIONAL AND SOCIETAL IMPORTANCE OF THE
INTEREST ADVERSELY AFFECTED AND THE RECOGNIZED INVIDIOUSNESS OF THE
BASIS UPON WHICH THE PARTICULAR CLASSIFICATION IS DRAWN. 

[[HC99'(ORIGINAL DOCUMENT PAGE 99)'  I FIND IN FACT THAT MANY OF THE
COURT'S RECENT DECISIONS EMBODY THE VERY SORT OF REASONED APPROACH TO
EQUAL PROTECTION ANALYSIS FOR WHICH I PREVIOUSLY ARGUED--THAT IS, AN
APPROACH IN WHICH "CONCENTRATION (IS) PLACED UPON THE CHARACTER OF THE
CLASSIFICATION IN QUESTION, THE RELATIVE IMPORTANCE TO INDIVIDUALS IN
THE CLASS DISCRIMINATED AGAINST OF THE GOVERNMENTAL BENEFITS THAT THEY
DO NOT RECEIVE, AND THE ASSERTED STATE INTERESTS IN SUPPORT OF THE
CLASSIFICATION."  DANDRIDGE V. WILLIAMS, 397 U.S., AT 520 - 521
(DISSENTING OPINION). 

I THEREFORE CANNOT ACCEPT THE MAJORITY'S LABORED EFFORTS TO
DEMONSTRATE THAT FUNDAMENTAL INTERESTS, WHICH CALL FOR STRICT SCRUTINY
OF THE CHALLENGED CLASSIFICATION, ENCOMPASS ONLY ESTABLISHED RIGHTS
WHICH WE ARE SOMEHOW BOUND TO RECOGNIZE FROM THE TEXT OF THE
CONSTITUTION ITSELF.  TO BE SURE, SOME INTERESTS WHICH THE COURT HAS
DEEMED TO BE FUNDAMENTAL FOR PURPOSES OF EQUAL PROTECTION ANALYSIS ARE
THEMSELVES CONSTITUTIONALLY PROTECTED RIGHTS.  THUS, DISCRIMINATION
AGAINST THE GUARANTEED RIGHT OF FREEDOM OF SPEECH HAS CALLED FOR STRICT
JUDICIAL SCRUTINY.  SEE POLICE DEPT. OF CHICAGO V. MOSLEY, 408 U.S. 92
(1972).  FURTHER, EVERY CITIZEN'S RIGHT TO TRAVEL INTERSTATE, ALTHOUGH
NOWHERE EXPRESSLY MENTIONED IN THE CONSTITUTION, HAS LONG BEEN
RECOGNIZED AS IMPLICIT IN THE PREMISES UNDERLYING THAT DOCUMENT:  THE
RIGHT "WAS CONCEIVED FROM THE BEGINNING TO BE A NECESSARY CONCOMITANT
OF THE SRONGER UNION THE CONSTITUTION CREATED."  UNITED STATES V.
GUEST, 383 U.S. 745, 758 (1966).  SEE ALSO CRANDALL V. NEVADA, 6 WALL. 
35, 48 (1968).  CONSEQUENTLY, THE COURT HAS REQUIRED THAT A STATE
CLASSIFICATION AFFECTING THE CONSTITUTIONALLY PROTECTED RIGHT TO TRAVEL
MUST BE "SHOWN TO BE NECESSARY TO PROMOTE A COMPELLING GOVERNMENTAL
INTEREST."  SHAPIRO V. THOMPSON, 394 U.S., AT 634. 

[[HC100'(ORIGINAL DOCUMENT PAGE 100)'  BUT IT WILL NOT DO TO SUGGEST
THAT THE "ANSWER" TO WHETHER AN INTEREST IS FUNDAMENTAL FOR PURPOSES OF
EQUAL PROTECTION ANALYSIS IS ALWAYS DETERMINED BY WHETHER THAT INTEREST
"IS A RIGHT . . . EXPLICITLY OR IMPLICITLY GUARANTEED BY THE
CONSTITUTION," ANTE, AT 33 - 34.  /59/ 

I WOULD LIKE TO KNOW WHERE THE CONSTITUTION GUARANTEES THE RIGHT TO
PROCREATE, SKINNER V. OKLAHOMA, 316 U.S. 535, 541 (1942), OR THE RTGHT
TO VOTE IN STATE ELECTIONS, E. G., REYNOLDS V. SIMS, 377 U.S. 533
(1964), OR THE RIGHT TO AN APPEAL FROM A CRIMINAL CONVICTION, E. G.,
GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956).  THESE ARE INSTANCES IN WHICH,
DUE TO THE IMPORTANCE OF THE INTERESTS AT STAKE, THE COURT HAS
DISPLAYED A STRONG CONCERN WITH THE EXISTENCE OF DISCRIMINATORY STATE
TREATMENT.  BUT THE COURT HAS NEVER SAID OR INDICATED THAT THESE ARE
INTERESTS WHICH INDEPENDENTLY ENJOY FULL-BLOWN CONSTITUTIONAL
PROTECTION.     THUS, IN BUCK V. BELL, 274 U.S. 200 (1927), THE COURT
REFUSED TO RECOGNIZE A SUBSTANTIVE CONSTITUTIONAL GUARANTEE OF THE
RIGHT TO PROCREATE.  NEVERTHELESS, IN SKINNER V. OKLAHOMA, SUPRA, AT
541, THE COURT, WITHOUT IMPUGNING THE CONTINUING VALIDITY OF BUCK V.
BELL, HELD THAT "STRICT SCRUTINY" OF STATE DISCRIMINATION AFFECTING
PROCREATION "IS ESSENTIAL," FOR "(MARRIAGE AND PROCREATION ARE
FUNDAMENTAL TO THE VERY EXISTENCE AND SURVIVAL OF THE RACE."  RECENTLY,
IN ROE V. WADE, 410 U.S. 113, 152 (1973), THE IMPORTANCE OF PROCREATION
HAS INDEED BEEN EXPLAINED ON THE BASIS OF ITS INTIMATE RELATIONSHIP
WITH THE CONSTITUTIONAL RIGHT OF PRIVACY WHICH WE HAVE RECOGNIZED.  YET
THE LIMITED STATURE THEREBY ACCORDED ANY "RIGHT" TO PROCREATE IS
EVIDENT FROM THE FACT THAT AT THE SAME TIME THE COURT REAFFIRMED ITS
INITIAL DECISION IN BUCK V. BELL. 

[[HC101'(ORIGINAL DOCUMENT PAGE 101)'  SEE ROE V. WADE, SUPRA, AT
154. 

SIMILARLY, THE RIGHT TO VOTE IN STATE ELECTIONS HAS BEEN RECOGNIZED
AS A "FUNDAMENTAL POLITICAL RIGHT," BECAUSE THE COURT CONCLUDED VERY
EARLY THAT IT IS "PRESERVATIVE OF ALL RIGHTS."  YICK WO V. HOPKINS, 118
U.S. 356, 370 (1886); SEE, E. G., REYNOLDS V. SIMS, 377 U.S., AT 561 -
562.  FOR THIS REASON, "THIS COURT HAS MADE CLEAR THAT A CITIZEN HAS A
CONSTITUTIONALLY PROTECTED RIGHT TO PARTICIPATE IN ELECTIONS ON AN
EQUAL BASIS WITH OTHER CITIZENS IN THE JURISDICTION."  DUNN V.
BLUMSTEIN, 405 U.S., AT 336 (EMPHASIS ADDED).  THE FINAL SOURCE OF SUCH
PROTECTION FROM INEQUALITY IN THE PROVISION OF THE STATE FRANCHISE IS,
OF COURSE, THE EQUAL PROTECTION CLAUSE.  YET IT IS CLEAR THAT WHATEVER
DEGREE OF IMPORTANCE HAS BEEN ATTACHED TO THE STATE ELECTORAL PROCESS
WHEN UNEQUALLY DISTRIBUTED, THE RIGHT TO VOTE IN STATE ELECTIONS HAS
ITSELF NEVER BEEN ACCORDED THE STATURE OF AN INDEPENDENT CONSTITUTIONAL
GUARANTEE.  /60/  SEE OREGON V. MITCHELL, 400 U.S. 112 (1970); KRAMER
V. UNION SCHOOL DISTRICT, 395 U.S. 621, 626 - 629 (1969); HARPER V.
VIRGINIA BD. OF ELECTIONS, 383 U.S. 663, 665 (1966). 

FINALLY, IT IS LIKEWISE "TRUE THAT A STATE IS NOT REQUIRED BY THE
FEDERAL CONSTITUTION TO PROVIDE APPELLATE COURTS OR A RIGHT TO
APPELLATE REVIEW AT ALL." 

[[HC102'(ORIGINAL DOCUMENT PAGE 102)'  GRIFFIN V. ILLINOIS, 351
U.S., AT 18.  NEVERTHELESS, DISCRIMINATION ADVERSELY AFFECTING ACCESS
TO AN APPELLATE PROCESS WHICH A STATE HAS CHOSEN TO PROVIDE HAS BEEN
CONSIDERED TO REQUIRE CLOSE JUDICIAL SCRUTINY.  SEE, E. G., GRIFFIN V.
ILLINOIS, SUPRA; DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963).  /61/ 

THE MAJORITY IS, OF COURSE, CORRECT WHEN IT SUGGESTS THAT THE
PROCESS OF DETERMINING WHICH INTERESTS ARE FUNDAMENTAL IS A DIFFICULT
ONE.  BUT I DO NOT THINK THE PROBLEM IS INSURMOUNTABLE.  AND I
CERTAINLY DO NOT ACCEPT THE VIEW THAT THE PROCESS NEED NECESSARILY
DEGENERATE INTO AN UNPRINCIPLED, SUBJECTIVE "PICKING-AND-CHOOSING"
BETWEEN VARIOUS INTERESTS OR THAT IT MUST INVOLVE THIS COURT IN
CREATING "SUBSTANTIVE CONSTITUTIONAL RIGHTS IN THE NAME OF GUARANTEEING
EQUAL PROTECTION OF THE LAWS," ANTE, AT 33.  ALTHOUGH NOT ALL
FUNDAMENTAL INTERESTS ARE CONSTITUTIONALLY GUARANTEED, THE
DETERMINATION OF WHICH INTERESTS ARE FUNDAMENTAL SHOULD BE FIRMLY
ROOTED IN THE TEXT OF THE CONSTITUTION.  THE TASK IN EVERY CASE SHOULD
BE TO DETERMINE THE EXTENT TO WHICH CONSTITUTIONALLY GUARANTEED RIGHTS
ARE DEPENDENT ON INTERESTS ARE MENTIONED IN THE CONSTITUTION.  AS THE
NEXUS BETWEEN THE SPECIFIC CONSTITUTIONAL GUARANTEE AND THE
NONCONSTITUTIONAL INTEREST DRAWS CLOSER, THE NONCONSTITUTIONAL INTEREST
BECOMES MORE FUNDAMENTAL AND THE DEGREE OF JUDICIAL SCRUTINY APPLIED
WHEN THE INTEREST IS INFRINGED ON A DISCRIMINATORY BASIS MUST BE
ADJUSTED ACCORDINGLY.  THUS, IT CANNOT BE DENIED THAT INTERESTS SUCH AS
PROCREATION, THE EXERCISE OF THE STATE FRANCHISE, AND ACCESS TO
CRIMINAL APPELLATE PROCESSES ARE NOT FULLY GUARANTEED TO THE CITIZEN BY
OUR CONSTITUTION. 

[[HC103'(ORIGINAL DOCUMENT PAGE 103)'  BUT THESE INTERESTS HAVE
NONETHELESS BEEN AFFORDED SPECIAL JUDICIAL CONSIDERATION IN THE FACE OF
DISCRIMINATION BECAUSE THEY ARE, TO SOME EXTENT, INTERRELATED WITH
CONSTITUTIONAL GUARANTEES.  PROCREATION IS NOW UNDERSTOOD TO BE
IMPORTANT BECAUSE OF ITS INTERACTION WITH THE ESTABLISHED
CONSTITUTIONAL RIGHT OF PRIVACY.  THE EXERCISE OF THE STATE FRANCHISE
IS CLOSELY TIED TO BASIC CIVIL AND POLITICAL RIGHTS INHERENT IN THE
FIRST AMENDMENT.  AND ACCESS TO CRIMINAL APPELLATE PROCESSES ENHANCES
THE INTEGRITY OF THE RANGE OF RIGHTS /62/  IMPLICIT IN THE FOURTEENTH
AMENDMENT GUARANTEE OF DUE PROCESS OF LAW.  ONLY IF WE CLOSELY PROTECT
THE RELATED INTERESTS FROM STATE DISCRIMINATION DO WE ULTIMATELY ENSURE
THE INTEGRITY OF THE CONSTITUTIONAL GUARANTEE ITSELF.  THIS IS THE REAL
LESSON THAT MUST BE TAKEN FROM OUR PREVIOUS DECISIONS INVOLVING
INTERESTS DEEMED TO BE FUNDAMENTAL. 

THE EFFECT OF THE INTERACTION OF INDIVIDUAL INTERESTS WITH
ESTABLISHED CONSTITUTIONAL GUARANTEES UPON THE DEGREE OF CARE EXERCISED
BY THIS COURT IN REVIEWING STATE DISCRIMINATION AFFECTING SUCH
INTERESTS IS AMPLY ILLUSTRATED BY OUR DECISION LAST TERM IN EISENSTADT
V. BAIRD, 405 U.S. 438 (1972).  IN BAIRD, THE COURT STRUCK DOWN AS
VIOLATIVE OF THE EQUAL PROTECTION CLAUSE A STATE STATUTE WHICH DENIED
UNMARRIED PERSONS ACCESS TO CONTRACEPTIVE DEVICES ON THE SAME BASIS AS
MARRIED PERSONS.  THE COURT PURPORTED TO TEST THE STATUTE UNDER ITS
TRADITIONAL STANDARD WHETHER THERE IS SOME RATIONAL BASIS FOR THE
DISCRIMINATION EFFECTED.  ID., AT 446 - 447. 

[[HC104'(ORIGINAL DOCUMENT PAGE 104)'  IN THE CONTEXT OF COMMERCIAL
REGULATION, THE COURT HAS INDICATED THAT THE EQUAL PROTECTION CLAUSE
"IS OFFENDED ONLY IF THE CLASSIFICATION RESTS ON GROUNDS WHOLLY
IRRELEVANT TO THE ACHIEVEMENT OF THE STATE'S OBJECTIVE."  SEE, E. G.,
MCGOWAN V. MARYLAND, 366 U.S., AT 425; KOTCH V. BOARD OF RIVER PORT
PILOT COMM'RS, 330 U.S. 552, 557 (1947).  AND THIS LENIENT STANDARD IS
FURTHER WEIGHTED IN THE STATE'S FAVOR BY THE FACT THAT "(A) STATUTORY
DISCRIMINATION WILL NOT BE SET ASIDE IF ANY STATE OF FACTS REASONABLY
MAY BE CONCEIVED (BY THE COURT) TO JUSTIFY IT."  MCGOWAN V. MARYLAND,
SUPRA, AT 426.  BUT IN BAIRD THE COURT CLEARLY DID NOT ADHERE TO THESE
HIGHLY TOLERANT STANDARDS OF TRADITIONAL RATIONAL REVIEW.  FOR ALTHOUGH
THERE WERE CONCEIVABLE STATE INTERESTS INTENDED TO BE ADVANCED BY THE
STATUTE--E. G., DETERRENCE OF PREMARITAL SEXUAL ACTIVITY AND REGULATION
OF THE DISSEMINATION OF POTENTIALLY DANGEROUS ARTICLES--THE COURT WAS
NOT PREPARED TO ACCEPT THESE INTERESTS ON THEIR FACE, BUT INSTEAD
PROCEEDED TO TEST THEIR SUBSTANTIALITY BY INDEPENDENT ANALYSIS.  SEE
405 U.S., AT 449 - 454.  SUCH CLOSE SCRUTINY OF THE STATE'S INTERESTS
WAS HARDLY CHARACTERISTIC OF THE DEFERENCE SHOWN STATE CLASSIFICATIONS
IN THE CONTEXT OF ECONOMIC INTERESTS.  SEE, E. G., GOESAERT V. CLEARY,
335 U.S. 464 (1948); KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS, SUPRA.
YET I THINK THE COURT'S ACTION WAS ENTIRELY APPROPRIATE, FOR ACCESS TO
AND USE OF CONTRACEPTIVES BEARS A CLOSE RELATIONSHIP TO THE
INDIVIDUAL'S CONSTITUTIONAL RIGHT OF PRIVACY.  SEE 405 U.S., AT 453 -
454; ID., AT 463 - 464 (WHITE, J., CONCURRING IN RESULT).  SEE ALSO ROE
V. WADE, 410 U.S., AT A52 - 153. 

A SIMILAR PROCESS OF ANALYSIS WITH RESPECT TO THE INVIDIOUSNESS OF
THE BASIS ON WHICH A PARTICULAR CLASSIFICATION IS DRAWN HAS ALSO
INFLUENCED THE COURT AS TO THE APPROPRIATE DEGREE OF SCRUTINY TO BE
ACCORDED ANY PARTICULAR CASE.  THE HIGHLY SUSPECT CHARACTER OF
CLASSIFICATIONS BASED ON RACE, /63/  NATIONALITY, /64/  OR ALIENAGE
/65/  IS WELL ESTABLISHED. 

[[HC105'(ORIGINAL DOCUMENT PAGE 105)'  THE REASONS WHY SUCH
CLASSIFICATIONS CALL FOR CLOSE JUDICIAL SCRUTINY ARE MANIFOLD.  CERTAIN
RACIAL AND ETHNIC GROUPS HAVE FREQUENTLY BEEN RECOGNIZED AS "DISCRETE
AND INSULAR MINORITIES"  WHO ARE RELATIVELY POWERLESS TO PROTECT THEIR
INTERESTS IN THE POLITICAL PROCESS.  SEE GRAHAM V. RICHARDSON, 403
U.S., AT 372; CF. UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144,
152 - 153, N. 4 (1938).  MOREOVER, RACE, NATIONALITY, OR ALIENAGE IS
"'IN MOST CIRCUMSTANCES IRRELEVANT' TO ANY CONSTITUTIONALLY ACCEPTABLE
LEGISLATIVE PURPOSE, HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 100." 
MCLAUGHLIN V. FLORIDA, 379 U.S., AT 192.  INSTEAD, LINES DRAWN ON SUCH
BASES ARE FREQUENTLY THE REFLECTION OF HISTORIC PREJUDICES RATHER THAN
LEGISLATIVE RATIONALITY.  IT MAY BE THAT ALL OF THESE CONSIDERATIONS,
WHICH MAKE FOR PARTICULAR JUDICIAL SOLICITUDE IN THE FACE OF
DISCRIMINATION ON THE BASIS OF RACE, NATIONALITY, OR ALIENAGE, DO NOT
COALESCE--OR AT LEAST NOT TO THE SAME DEGREE--IN OTHER FORMS OF
DISCRIMINATION.  NEVERTHELESS, THESE CONSIDERATIONS HAVE UNDOUBTEDLY
INFLUENCED THE CARE WITH WHICH THE COURT HAS SCRUTINIZED OTHER FORMS OF
DISCRIMINATION. 

IN JAMES V. STRANGE, 407 U.S. 128 (1972), THE COURT HELD
UNCONSTITUTIONAL A STATE STATUTE WHICH PROVIDED FOR RECOUPMENT FROM
INDIGENT CONVICTS OF LEGAL DEFENSE FEES PAID BY THE STATE.  THE COURT
FOUND THAT THE STATUTE IMPERMISSIBLY DIFFERENTIATED BETWEEN INDIGENT
CRIMINALS IN DEBT TO THE STATE AND CIVIL JUDGMENT DEBTORS, SINCE
CRIMINAL DEBTORS WERE DENIED VARIOUS PROTECTIVE EXEMPTIONS AFFORDED
CIVIL JUDGMENT DEBTORS.  /66/  THE COURT SUGGESTED THAT IN REVIEWING
THE STATUTE UNDER THE EQUAL PROTECTION CLAUSE, IT WAS MERELY APPLYING
THE TRADITIONAL REQUIREMENTS THAT THERE BE "'SOME RATIONALITY'" IN THE
LINE DRAWN BETWEEN THE DIFFERENT TYPES OF DEBTORS. 

[[HC106'(ORIGINAL DOCUMENT PAGE 106)'  ID., AT 140.  YET IT THEN
PROCEEDED TO SCRUTINIZE THE STATUTE WITH LESS THAN TRADITIONAL
DEFERENCES AND RESTRAINT.  THUS THE COURT RECOGNIZED "THAT STATE
RECOUPMENT STATUTES MAY BETOKEN LEGITIMATE STATE INTERESTS" IN
RECOVERING EXPENSES AND DISCOURAGING FRAUD.  NEVERTHELESS, MR. JUSTICE
POWELL, SPEAKING FOR THE COURT, CONCLUDED THAT 

"THESE INTERESTS ARE NOT THWARTED BY REQUIRING MORE EVEN TREATMENT
OF INDIGENT CRIMINAL DEFENDANTS WITH OTHER CLASSES OF DEBTORS TO WHOM
THE STATUTE ITSELF REPEATEDLY MAKES REFERENCE.  STATE RECOUPMENT LAWS,
NOTWITHSTANDING THE STATE INTERESTS THEY MAY SERVE, NEED NOT BLIGHT IN
SUCH DISCRIMINATORY FASHION THE HOPES OF INDIGENTS FOR SELF-SUFFICIENCY
AND SELF-RESPECT."  ID., AT 141 - 142.  THE COURT, IN SHORT, CLEARLY
DID NOT CONSIDER THE PROBLEMS OF FRAUD AND COLLECTION THAT THE STATE
LEGISLATURE MIGHT HAVE CONCLUDED WERE PECULIAR TO INDIGENT CRIMINAL
DEFENDANTS TO BE EITHER SUFFICIENTLY IMPORTANT OR AT LEAST SUFFICIENTLY
SUBSTANTIATED TO JUSTIFY DENIAL OF THE PROTECTIVE EXEMPTIONS AFFORDED
TO ALL CIVIL JUDGMENT DEBTORS, TO A CLASS COMPOSED EXCLUSIVELY OF
INDIGENT CRIMINAL DEBTORS. 

SIMILARLY, IN REED V. REED, 404 U.S. 71 (1971), THE COURT, IN
STRIKING DOWN A STATE STATUTE WHICH GAVE MEN PREFERENCE OVER WOMEN WHEN
PERSONS OF EQUAL ENTITLEMENT APPLY FOR ASSIGNMENT AS AN ADMINISTRATOR
OF A PARTICULAR ESTATE, RESORTED TO A MORE STRINGENT STANDARD OF EQUAL
PROTECTION REVIEW THAN THAT EMPLOYED IN CASES INVOLVING COMMERCIAL
MATTERS.  THE COURT INDICATED THAT IT WAS TESTING THE CLAIM OF SEX
DISCRIMINATION BY NOTHING MORE THAN WHETHER THE LINE DRAWN BORE "A
RATIONAL RELATIONSHIP TO A STATE OBJECTIVE," WHICH IT RECOGNIZED AS A
LEGITIMATE EFFORT TO REDUCE THE WORK OF PROBATE COURTS IN CHOOSING
BETWEEN COMPETING APPLICATIONS FOR LETTERS OF ADMINISTRATION. 

[[HC107'(ORIGINAL DOCUMENT PAGE 107)'  ID., AT 76.  ACCEPTING SUCH A
PURPOSE, THE IDAHO SUPREME COURT HAD THOUGHT THE CLASSIFICATION TO BE
SUSTAINABLE ON THE BASIS THAT THE LEGISLATURE MIGHT HAVE REASONABLY
CONCLUDED THAT, AS A RULE, MEN HAVE MORE EXPERIENCE THAN WOMEN IN
BUSINESS MATTERS RELEVANT TO THE ADMINISTRATION OF ESTATE.  93 IDAHO
511, 514, 465 P. 2D 635, 638 (1970).  THIS COURT, HOWEVER, CONCLUDED
THAT "(TO GIVE A MANDATORY PREFERENCE TO MEMBERS OF EITHER SEX OVER
MEMBERS OF THE OTHER, MERELY TO ACCOMPLISH THE ELIMINATION OF HEARINGS
ON THE MERITS, IS TO MAKE THE VERY KIND OF ARBITRARY LEGISLATIVE CHOICE
FORBIDDEN BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT .
. . ."  404 U.S., AT 76.  THIS COURT, IN OTHER WORDS, WAS UNWILLING TO
CONSIDER A THEORETICAL AND UNSUBSTANTIATED BASIS FOR DISTINCTION-
HOWEVER REASONABLE IT MIGHT APPEAR--SUFFICIENT TO SUSTAIN A STATUTE OF
DISCRIMINATING ON THE BASIS OF SEX. 

JAMES AND REED CAN ONLY BE UNDERSTOOD AS INSTANCES IN WHICH THE
PARTICULARLY INVIDIOUS CHARACTER OF THE CLASSIFICATION CAUSED THE COURT
TO PAUSE AND SCRUTINIZE WITH MORE THAN TRADITIONAL CARE THE RATIONALITY
OF STATE DISCRIMINATION.  DISCRIMINATION ON THE BASIS OF PAST
CRIMINALITY AND ON THE BASIS OF SEX POSED FOR THE COURT THE SPECTER OF
FORMS OF DISCRIMINATION WHICH IT IMPLICITLY RECOGNIZED TO HAVE DEEP
SOCIAL AND LEGAL ROOTS WITHOUT NECESSARILY HAVING ANY BASIS IN ACTUAL
DIFFERENCES.  STILL, THE COURT'S SENSITIVITY TO THE INVIDIOUSNESS OF
THE BASIS FOR DISCRIMINATION IS PERHAPS MOST APPARENT IN ITS DECISIONS
PROTECTING THE INTERESTS OF CHILDREN BORN OUT OF WEDLOCK FROM
DISCRIMINATORY STATE ACTION.  SEE WEBER V. AETNA CASUALTY & SURETY CO.,
406 U.S. 164 (1972); LEVY V. LOUISIANA, 391 U.S. 68 (1968). 

[[HC108'(ORIGINAL DOCUMENT PAGE 108)' 

IN WEBER, THE COURT STRUCK DOWN A PORTION OF A STATE WORKMEN'S
COMPENSATION STATUTE THAT RELEGATED UNACKNOWLEDGED ILLEGITIMATE
CHILDREN OF THE DECEASED TO A LESSER STATUS WITH RESPECT TO BENEFITS
THAN THAT OCCUPIED BY LEGITIMATE CHILDREN OF THE DECEASED.  THE COURT
ACKNOWLEDGED THE TRUE NATURE OF ITS INQUIRY IN CASES SUCH AS THESE:
"WHAT LEGITIMATE STATE INTEREST DOES THE CLASSIFICATION PROMOTE?  WHAT
FUNDAMENTAL PERSONAL RIGHTS MIGHT THE CLASSIFICATION ENDANGER?"  ID.,
AT 173.  EMBARKING UPON A DETERMINATION OF THE RELATIVE SUBSTANTIALITY
OF THE STATE'S JUSTIFICATIONS FOR THE CLASSIFICATION, THE COURT
REJECTED THE CONTENTION THAT THE CLASSIFICATION, THE COURT REJECTED THE
CONTENTION THAT THE CLASSIFICATION, THE COURT REJECTED THE CONTENTION
THAT THE CLASSIFICATIONS REFLECTED WHAT MIGHT BE PRESUMED TO HAVE BEEN
THE DECEASED'S PREFERENCE OF BENEFICIARIES AS "NOT COMPELLING . . .
WHERE DEPENDENCY ON THE DECEASED IS A PREREQUISITE TO ANYONE'S RECOVERY
. . . ."  IBID.  LIKEWISE, IT DEEMED THE RELATIONSHIP BETWEEN THE
STATE'S INTEREST IN ENCOURAGING LEGITIMATE FAMILY RELATIONSHIPS AND THE
BURDEN PLACED ON THE ILLEGITIMATES TOO TENUOUS TO PERMIT THE
CLASSIFICATION TO STAND.  IBID.  A CLEAR INSIGHT INTO THE BASIS OF THE
COURT'S ACTION IS PROVIDED BY ITS CONCLUSION:     "(IMPOSING
DISABILITIES ON THE ILLEGITIMATE CHILD IS CONTRARY TO THE BASIC CONCEPT
OF OUR SYSTEM THAT LEGAL BURDENS SHOULD BEAR SOME RELATIONSHIP TO
INDIVIDUAL RESPONSIBILITY OR WRONGDOING.  OBVIOUSLY, NO CHILD IS
RESPONSIBLE FOR HIS BIRTH AND PENALIZING THE ILLEGITIMATE CHILD IS AN
INEFFECTUAL--AS WELL AS AN UNJUST--WAY OF DETERRING THE PARENT.  COURTS
ARE POWERLESS TO PREVENT THE SOCIAL OPPROBRIUM SUFFERED BY THESE
HAPLESS CHILDREN, BUT THE EQUAL PROTECTION CLAUSE DOES ENABLE US TO
STRIKE DOWN DISCRIMINATORY LAWS RELATING TO STATUS OF BIRTH . . . ." 
ID., AT 175 - 176. 

[[HC109'(ORIGINAL DOCUMENT PAGE 109)'  STATUS OF BIRTH, LIKE THE
COLOR OF ONE'S SKIN, IS SOMETHING WHICH THE INDIVIDUAL CANNOT CONTROL,
AND SHOULD GENERALLY BE IRRELEVANT IN LEGISLATIVE CONSIDERATIONS.  YET
ILLEGITIMACY HAS LONG BEEN STIGMATIZED BY OUR SOCIETY.  HENCE,
DISCRIMINATION ON THE BASIS OF BIRTH--PARTICULARLY WHEN IT AFFECTS
INNOCENT CHILDREN--WARRANTS SPECIAL JUDICIAL CONSIDERATION. 

IN SUMMARY, IT SEEMS TO ME INESCAPABLY CLEAR THAT THIS COURT HAS
CONSISTENTLY ADJUSTED THE CARE WITH WHICH IT WILL REVIEW STATE
DISCRIMINATION IN LIGHT OF THE CONSTITUTIONAL SIGNIFICANCE OF THE
INTERESTS AFFECTED AND THE INVIDIOUSNESS OF THE PARTICULAR
CLASSIFICATION.  IN THE CONTEXT OF ECONOMIC INTERESTS, WE FIND THAT
DISCRIMINATORY STATE ACTION IS ALMOST ALWAYS SUSTAINED, FOR SUCH
INTERESTS ARE GENERALLY FAR REMOVED FROM CONSTITUTIONAL GUARANTEES. 
MOREOVER, "(THE EXTREMES TO WHICH THE COURT HAS GONE IN DREAMING UP
RATIONAL BASES FOR STATE REGULATIONS IN THAT AREA MAY IN MANY INSTANCES
BE ASCRIBED TO A HEALTH REVULSION FROM THE COURT'S EARLIER EXCESSES IN
USING THE CONSTITUTION TO PROTECT INTERESTS THAT HAVE MORE THAN ENOUGH
POWER TO PROTECT THEMSELVES IN THE LEGISLATIVE HALLS."  DANDRIDGE V.
WILLIAMS, 397 U.S., AT 520 (DISSENTING OPINION).  BUT THE SITUATION
DIFFERS MARKEDLY WHEN DISCRIMINATION AGAINST IMPORTANT INDIVIDUAL
INTERESTS WITH CONSTITUTIONAL IMPLICATIONS AND AGAINST PARTICULARLY
DISADVANTAGED OR POWERLESS CLASSES IS INVOLVED.  THE MAJORITY SUGGESTS,
HOWEVER, THAT A VARIABLE STANDARD OF REVIEW WOULD GIVE THIS COURT THE
APPEARANCE OF A "SUPER-LEGISLATURE."  ANTE, AT 31.  I CANNOT AGREE. 
SUCH AN APPROACH SEEMS TO ME A PART OF THE GUARANTEES OF OUR
CONSTITUTION AND OF THE HISTORIC EXPERIENCES WITH OPPRESSION OF AND
DISCRIMINATION AGAINST DISCRETE, POWERLESS MINORITIES WHICH UNDERLIE
THAT DOCUMENT.  IN TRUTH, THE COURT ITSELF WILL BE OPEN TO THE
CRITICISM RAISED BY THE MAJORITY SO LONG AS IT CONTINUES ON ITS PRESENT
COURSE OF EFFECTIVELY SELECTING IN PRIVATE WHICH CASES WILL BE AFFORDED
SPECIAL CONSIDERATION WITHOUT ACKNOWLEDGING THE TRUE BASIS OF ITS
ACTION.  /67/  OPINIONS SUCH AS THOSE IN REED AND JAMES SEEMS DRAWN
MORE AS EFFORTS TO SHIELD RATHER THAN TO REVEAL THE TRUE BASIS OF THE
COURT'S DECISIONS. 

[[HC110'(ORIGINAL DOCUMENT PAGE 110)'  SUCH OBFUSCATED ACTION MAY BE
APPROPRIATE TO A POLITICAL BODY SUCH AS A LEGISLATURE, BUT IT IS NOT
APPROPRIATE TO THIS COURT.  OPEN DEBATE OF THE BASES FOR THE COURT'S
ACTION IS ESSENTIAL TO THE RATIONALITY AND CONSISTENCY OF OUR
DECISIONMAKING PROCESS.  ONLY IN THIS WAY CAN WE AVOID THE LABEL OF
LEGISLATURE AND ENSURE THE INTEGRITY OF THE JUDICIAL PROCESS. 

NEVERTHELESS, THE MAJORITY TODAY ATTEMPTS TO FORCE THIS CASE INTO
THE SAME CATEGORY FOR PURPOSES OF EQUAL PROTECTION ANALYSIS AS
DECISIONS INVOLVING DISCRIMINATION AFFECTING COMMERCIAL INTERESTS.  BY
SO DOING, THE MAJORITY SINGLES THIS CASE OUT FOR ANALYTIC TREATMENT AT
ODDS WITH WHAT SEEMS TO ME TO BE THE CLEAR TREND OF RECENT DECISIONS IN
THIS COURT, AND THEREBY INGNORES THE CONSTITUTIONAL IMPORTANCE OF THE
INTEREST AT STAKE AND THE INVIDIOUSNESS OF THE PARTICULAR
CLASSIFICATION, FACTORS THAT CALL FOR FAR MORE THAN THE LENIENT
SCRUTINY OF THE TEXAS FINANCING SCHEME WHICH THE MAJORITY PURSUES.  YET
IF THE DISCRIMINATION INHERENT IN THE TEXAS SCHEME IS SCRUTINIZED WITH
THE CARE DEMANDED BY THE INTEREST AND CLASSIFICATION PRESENT IN THIS
CASE, THE UNCONSTITUTIONALITY OF THAT SCHEME IS UNMISTAKABLE. 

        B 

SINCE THE COURT NOW SUGGESTS THAT ONLY INTERESTS GUARANTEED BY THE
CONSTITUTION ARE FUNDAMENTAL FOR PURPOSES OF EQUAL PROTECTION ANALYSIS,
AND SINCE IT REJECTS THE CONTENTION THAT PUBLIC EDUCATION IS
FUNDAMENTAL, IT FOLLOWS THAT THE COURTS CONCLUDES THAT PUBLIC EDUCATION
IS NOT CONSTITUTIONALLY GUARANTEED.  IT IS TRUE THAT THIS COURT HAS
NEVER DEEMED THE PROVISION OF FREE PUBLIC EDUCATION TO BE REQUIRED BY
THE CONSTITUTION. 

[[HC111'(ORIGINAL DOCUMENT PAGE 111)'  INDEED, IT HAS ON OCCASION
SUGGESTED THAT STATE-SUPPORTED EDUCATION IS A PRIVILEGE BESTOWED BY A
STATE ON ITS CITIZENS.  SEE MISSOURI EX REL. GAINES V. CANADA, 305
U.S., AT 349.  NEVERTHELESS, THE FUNDAMENTAL IMPORTANCE OF EDUCATION IS
AMPLY INDICATED BY THE PRIOR DECISIONS OF THIS COURT, BY THE UNIQUE
STATUS ACCORDED PUBLIC EDUCATION BY OUR SOCIETY, AND BY THE CLOSE
RELATIONSHIP BETWEEN EDUCATION AND SOME OF OUR MOST BASIC
CONSTITUTIONAL VALUES. 

THE SPECIAL CONCERN OF THIS COURT WITH THE EDUCATIONAL PROCESS OF
OUR COUNTRY IS A MATTER OF COMMON KNOWLEDGE.  UNDOUBTEDLY, THIS COURT'S
MOST FAMOUS STATEMENT ON THE SUBJECT IS THAT CONTAINED IN BROWN V.
BOARD OF EDUCATION, 347 U.S., AT 493: 

     "TODAY, EDUCATION IS PERHAPS THE MOST IMPORTANT FUNCTION OF

  STATE AND LOCAL GOVERNMENTS.  COMPULSORY SCHOOL ATTENDANCE LAWS

  AND THE GREAT EXPENDITURES FOR EDUCATION BOTH DEMONSTRATE OUR

  RECOGNITION OF THE IMPORTANCE OF EDUCATION TO OUR DEMOCRATIC

  SOCIETY.  IT IS REQUIRED IN THE PERFORMANCE OF OUR MOST BASIC

  PUBLIC RESPONSIBILITIES, EVEN SERVICE IN THE ARMED FORCES.  IT IS

THE VERY FOUNDATION OF GOOD CITIZENSHIP.  TODAY IT IS A PRINCIPAL

  INSTRUMENT IN AWAKENING THE CHILD TO CULTURAL VALUES, IN

  PREPARING HIM FOR LATER PROFESSIONAL TRAINING, AND IN HELPING HIM

  TO ADJUST NORMALLY TO HIS ENVIRONMENT.  . . ." 

ONLY LAST TERM, THE COURT RECOGNIZED THAT "(PROVIDING PUBLIC SCHOOLS
RANKS AT THE VERY APEX OF THE FUNCTION OF A STATE."  WISCONSIN V.
YODER, 406 U.S. 205, 213 (1972).  THIS IS CLEARLY BORNE OUT BY THE FACT
THAT IN 48 OF OUR 50 STATES THE PROVISION OF PUBLIC EDUCATION IS
MANDATED BY THE STATE CONSTITUTION.  /68/  NO OTHER STATE FUNCTION IS
SO UNIFORMLY RECOGNIZED /69/  AS AN ESSENTIAL ELEMENT OF OUR SOCIETY'S
WELL-BEING. 

[[HC112'(ORIGINAL DOCUMENT PAGE 112)'  IN LARGE MEASURE, THE
EXPLANATION MUST REST, AS THE COURT RECOGNIZED IN YODER, ID., AT 221,
ON THE FACTS THAT "SOME DEGREE OF EDUCATION IS NECESSARY TO PREPARE
CITIZENS TO PARTICIPATE EFFECTIVELY AND INTELLIGENTLY IN OUR OPEN
POLITICAL SYSTEM . . . ," AND THAT "EDUCATION PREPARES INDIVIDUALS TO
BE SELF-RELIANT AND SELF-SUFFICIENT PARTICIPANTS IN SOCIETY."  BOTH
FACETS OF THIS OBSERVATION ARE SUGGESTIVE OF THE SUBSTANTIAL
RELATIONSHIP WHICH EDUCATION BEARS TO GUARANTEES OF OUR CONSTITUTION. 

EDUCATION DIRECTLY AFFECTS THE ABILITY OF A CHILD TO EXERCISE HIS
FIRST AMENDMENT INTERESTS, BOTH AS A SOURCE AND AS A RECEIVER OF
INFORMATION AND IDEAS, WHATEVER INTERESTS HE MAY PURSUE IN LIFE.  THIS
COURT'S DECISION IN SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 250 (1957),
SPEAKS OF THE RIGHT OF STUDENTS "TO INQUIRE, TO STUDY AND TO EVALUATE,
TO GAIN NEW MATURITY AND UNDERSTANDING . . . ."  THUS, WE HAVE NOT
CASUALLY DESCRIBED THE CLASSROOM AS THE "'MARKETPLACE OF IDEAS.'" 
KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589, 603 (1967).  THE
OPPORTUNITY FOR FORMAL EDUCATION MAY NOT NECESSARILY BE THE ESSENTIAL
DETERMINANT OF AN INDIVIDUAL'S ABILITY TO ENJOY THROUGHOUT HIS LIFE THE
RIGHTS OF FREE SPEECH AND ASSOCIATION GUARANTEED TO HIM BY THE FIRST
AMENDMENT.  BUT SUCH AN OPPORTUNITY MAY ENHANCE THE INDIVIDUAL'S
ENJOYMENT OF THOSE RIGHTS, NOT ONLY DURING BUT ALSO FOLLOWING SCHOOL
ATTENDANCE. 

[[HC113'(ORIGINAL DOCUMENT PAGE 113)'  THUS, IN THE FINAL ANALYSIS,
"THE PIVOTAL POSITION OF EDUCATION TO SUCCESS IN AMERICAN SOCIETY AND
ITS ESSENTIAL ROLE IN OPENING UP TO THE INDIVIDUAL THE CENTRAL
EXPERIENCES OF OUR CULTURE LEND IT AN IMPORTANCE THAT IS UNDENIABLE." 
/70/ 

OF PARTICULAR IMPORTANCE IS THE RELATIONSHIP BETWEEN EDUCATION AND
THE POLITICAL PROCESS.  "AMERICANS REGARD THE PUBLIC SCHOOLS AS A MOST
VITAL CIVIC INSTITUTION FOR THE PRESERVATION OF A DEMOCRATIC SYSTEM OF
GOVERNMENT."  ABINGTON SCHOOL DIST. V. SCHEMPP, 374 U.S. 203, 230
(1963) (BRENNAN, J., CONCURRING).  EDUCATION SERVES THE ESSENTIAL
FUNCTION IF INSTILLING IN OUR YOUNG AN UNDERSTANDING OF AND
APPRECIATION FOR THE PRINCIPLES AND OPERATION OF OUR GOVERNMENTAL
PROCESSES.  /71/  EDUCATION MAY INSTILL THE INTEREST AND PROVIDE THE
TOOLS NECESSARY FOR POLITICAL DISCOURSE AND DEBATE.  INDEED, IT HAS
FREQUENTLY BEEN SUGGESTED THAT EDUCATION IS THE DOMINANT FACTOR
AFFECTING POLITICAL CONSCIOUSNESS AND PARTICIPATION.  /72/  A SYSTEM OF
"(COMPETITION IN IDEAS AND GOVERNMENTAL POLITIES IS AT THE CORE OF OUR
ELECTORAL PROCESS AND OF THE FIRST AMENDMENT FREEDOMS."  WILLIAMS V.
RHODES, 393 U.S. 23, 32 (1968). 

[[HC114'(ORIGINAL DOCUMENT PAGE 114)'  BUT OF MOST IMMEDIATE AND
DIRECT CONCERN MUST BE THE DEMONSTRATED EFFECT OF EDUCATION ON THE
EXERCISE OF THE FRANCHISE BY THE ELECTORATE.  THE RIGHT TO VOTE IN
FEDERAL ELECTIONS IS CONFERRED BY ART. I, ^ 2, AND THE SEVENTEENTH
AMENDMENT OF THE CONSTITUTION, AND ACCESS TO THE STATE FRANCHISE HAS
BEEN AFFORDED SPECIAL PROTECTION BECAUSE IT IS "PRESERVATIVE OF OTHER
BASIC CIVIL AND POLITICAL RIGHTS," REYNOLDS V. SIMS, 377 U.S., AT 562. 
DATA FROM THE PRESIDENTIAL ELECTION OF 1968 CLEARLY DEMONSTRATES A
DIRECT RELATIONSHIP BETWEEN PARTICIPATION IN THE ELECTORAL PROCESS AND
LEVEL OF EDUCATIONAL ATTAINMENT; /73/  AND, AS THIS COURT RECOGNIZED IN
GASTON COUNTY V. UNITED STATES, 395 U.S. 285, 296 (1969), THE QUALITY
OF EDUCATION OFFERED MAY INFLUENCE A CHILD'S DECISION TO "ENTER OR
REMAIN IN SCHOOL."  IT IS THIS VERY SORT OF INTIMATE RELATIONSHIP
BETWEEN A PARTICULAR PERSONAL INTEREST AND SPECIFIC CONSTITUTIONAL
GUARANTEES THAT HAS HERETOFORE CAUSED THE COURT TO ATTACH SPECIAL
SIGNIFICANCE, FOR PURPOSES OF EQUAL PROTECTION ANALYSIS, TO INDIVIDUAL
INTERESTS SUCH AS PROCREATION AND THE EXERCISE OF THE STATE FRANCHISE. 
/74/ 

[[HC115'(ORIGINAL DOCUMENT PAGE 115)' 

WHILE ULTIMATELY DISPUTING LITTLE OF THIS, THE MAJORITY SEEKS REFUGE
IN THE FACT THAT THE COURT HAS "NEVER PRESUMED TO POSSESS EITHER THE
ABILITY OR THE AUTHORITY TO GUARANTEE TO THE CITIZENRY THE MOST
EFFECTIVE SPEECH OR THE MOST INFORMED ELECTORAL CHOICE."  ANTE, AT 36. 
THIS SERVES ONLY TO BLUR WHAT IS IN FACT AT STAKE.  WITH DUE RESPECT,
THE ISSUE IS NEITHER PROVISION OF THE MOST EFFECTIVE SPEECH NOR OF THE
MOST INFORMED VOTE.  APPELLEES DO NOT NOW SEEK THE BEST EDUCATION TEXAS
MIGHT PROVIDE.  THEY DO SEEK, HOWEVER, AN END TO STATE DISCRIMINATION
RESULTING FROM THE UNEQUAL DISTRIBUTION OF TAXABLE DISTRICT PROPERTY
WEALTH THAT DIRECTLY IMPAIRS THE ABILITY OF SOME DISTRICTS TO PROVIDE
THE SAME EDUCATIONAL OPPORTUNITY THAT OTHER DISTRICTS CAN PROVIDE WITH
THE SAME OR EVEN SUBSTANTIALLY LESS TAX EFFORT. 

[[HC116'(ORIGINAL DOCUMENT PAGE 116)'  THE ISSUE IS, IN OTHER WORDS,
ONE OF DISCRIMINATION THAT AFFECTS THE QUALITY OF THE EDUCATION WHICH
TEXAS HAS CHOSEN TO PROVIDE ITS CHILDREN; AND, THE PRECISE QUESTION
HERE IS WHAT IMPORTANCE SHOULD ATTACH TO EDUCATION FOR PURPOSES OF
EQUAL PROTECTION ANALYSIS OF THAT DISCRIMINATION.  AS THIS COURT HELD
IN BROWN V. BOARD OF EDUCATION, 347 U.S., AT 493, THE OPPORTUNITY OF
EDUCATION, "WHERE THE STATE HAS UNDERTAKEN TO PROVIDE IT, IS A RIGHT
WHICH MUST BE MADE AVAILABLE TO ALL ON EQUAL TERMS."  THE FACTORS JUST
CONSIDERED, INCLUDING THE RELATIONSHIP BETWEEN EDUCATION AND THE SOCIAL
AND POLITICAL INTERESTS ENSHRINED WITHIN THE CONSTITUTION, COMPEL US TO
RECOGNIZE THE FUNDAMENTALITY OF EDUCATION AND TO SCRUTINIZE WITH
APPROPRIATE CARE THE BASES FOR STATE DISCRIMINATION AFFECTING EQUALITY
OF EDUCATIONAL OPPORTUNITY IN TEXAS' SCHOOL DISTRICTS /75/  --A
CONCLUSION WHICH IS ONLY STRENGTHENED WHEN WE CONSIDER THE CHARACTER OF
THE CLASSIFICATION IN THIS CASE. 

        C 

THE DISTRICT COURT FOUND THAT IN DISCRIMINATING BETWEEN TEXAS
SCHOOLCHILDREN ON THE BASIS OF THE AMOUNT OF TAXABLE PROPERTY WEALTH
LOCATED IN THE DISTRICT IN WHICH THEY LIVE, THE TEXAS FINANCING SCHEME
CREATED A FORM OF WEALTH DISCRIMINATION. 

[[HC117'(ORIGINAL DOCUMENT PAGE 117)'  THIS COURT HAS FREQUENTLY
RECOGNIZED THAT DISCRIMINATION ON THE BASIS OF WEALTH MAY CREATE A
CLASSIFICATION OF A SUSPECT CHARACTER AND THEREBY CALL FOR EXACTING
JUDICIAL SCRUTINY.  SEE, E. G., GRIFFIN V. ILLINOIS, 351 U.S. 12
(1956); DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963); MCDONALD V. BOARD
OF ELECTION COMMR'S OF CHICAGO, 394 U.S. 802, 807 (1969).  THE
MAJORITY, HOWEVER, CONSIDERS ANY WEALTH CLASSIFICATION IN THIS CASE TO
LACK CERTAIN ESSENTIAL CHARACTERISTICS WHICH IT CONTENDS ARE COMMON TO
THE INSTANCES OF WEALTH DISCRIMINATION THAT THIS COURT HAS HERETOFORE
RECOGNIZED.  WE ARE TOLD THAT IN EVERY PRIOR CASE INVOLVING A WEALTH
CLASSIFICATION, THE MEMBERS OF THE DISADVANTAGED CLASS HAVE "SHARED TWO
DISTINGUISHING CHARACTERISTICS:  BECAUSE OF THEIR IMPECUNITY THEY WERE
COMPLETELY UNABLE TO PAY FOR SOME DESIRED BENEFIT, AND AS A
CONSEQUENCE, THEY SUSTAINED AN ABSOLUTE DEPRIVATION OF A MEANINGFUL
OPPORTUNITY TO ENJOY THAT BENEFIT."  ANTE, AT 20.     [[HC118'(ORIGINAL
DOCUMENT PAGE 118)'  I CANNOT AGREE.  THE COURT'S DISTINCTIONS MAY BE
SUFFICIENT TO EXPLAIN THE DECISIONS IN WILLIAMS V. ILLINOIS, 399 U.S.
235 (1970); TATE V. SHORT, 401 U.S. 395 (1971); AND EVEN BULLOCK V.
CARTER, 405 U.S. 134 (1972).  BUT THEY ARE NOT IN FACT CONSISTENT WITH
THE DECISIONS IN HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663
(1966), OR GRIFFIN V. ILLINOIS, SUPRA, OR DOUGLAS V. CALIFORNIA,
SUPRA. 

IN HARPER, THE COURT STRUCK DOWN AS VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE AN ANNUAL VIRGINIA POLL TAX OF $1.50, PAYMENT OF
WHICH BY PERSONS OVER THE AGE OF 21 WAS A PREREQUISITE TO VOTING IN
VIRGINIA ELECTIONS.  IN PART, THE COURT RELIED ON THE FACT THAT THE
POLL TAX INTERFERED WITH A FUNDAMENTAL INTEREST--THE EXERCISE OF THE
STATE FRANCHISE.  IN ADDITION, THOUGH, THE COURT EMPHASIZED THAT
"(LINES DRAWN ON THE BASIS OF WEALTH OR PROPERTY . . . ARE
TRADITIONALLY DISFAVORED."  ID., AT 668.  UNDER THE FIRST PART OF THE
THEORY ANNOUNCED BY THE MAJORITY, THE DISADVANTAGED CLASS IN HARPER, IN
TERMS OF A WEALTH ANALYSIS, SHOULD HAVE CONSISTED ONLY OF THOSE TOO
POOR TO AFFORD THE $1.50 NECESSARY TO VOTE.  BUT THE HARPER COURT DID
NOT SEE IT THAT WAY.  IN ITS VIEW, THE EQUAL PROTECTION CLAUSE "BARS A
SYSTEM WHICH EXCLUDES (FROM THE FRANCHISE) THOSE UNABLE TO PAY A FEE TO
VOTE OR WHO FAIL TO PAY."  IBID.  (EMPHASIS ADDED.)  SO FAR AS THE
COURT WAS CONCERNED, THE "DEGREE OF THE DISCRIMINATION (WAS)
IRRELEVANT."  IBID.  THUS, THE COURT STRUCK DOWN THE POLL TAX IN TOTO;
IT DID NOT ORDER MERELY THAT THOSE TOO POOR TO PAY THE TAX BE EXEMPTED;
COMPLETE IMPECUNITY CLEARLY WAS NOT DETERMINATIVE OF THE LIMITS IF THE
DISADVANTAGED CLASS, NOR WAS IT ESSENTIAL TO MAKE AN EQUAL PROTECTION
CLAIM. 

SIMILARLY, GRIFFIN AND DOUGLAS REFUTE THE MAJORITY'S CONTENTION THAT
WE HAVE IN THE PAST REQUIRED AN ABSOLUTE DEPRIVATION BEFORE SUBJECTING
WEALTH CLASSIFICATIONS TO STRICT SCRUTINY. 

[[HC119'(ORIGINAL DOCUMENT PAGE 119)'  THE COURT CHARACTERIZES
GRIFFIN AS A CASE CONCERNED SIMPLY WITH THE DENIAL OF A TRANSCRIPT OR
AN ADEQUATE SUBSTITUTE THEREFOR, AND DOUGLAS AS INVOLVING THE DENIAL OF
COUNSEL.  BUT IN BOTH CASES THE QUESTION WAS IN FACT WHETHER "A STATE
THAT (GRANTS) APPELLATE REVIEW CAN DO SO IN A WAY THAT DISCRIMINATES
AGAINST SOME CONVICTED DEFENDANTS ON ACCOUNT OF THEIR POVERTY." 
GRIFFIN V. ILLINOIS, 351 U.S., AT 18 (EMPHASIS ADDED).  IN THAT REGARD,
THE COURT CONCLUDED THAT INABILITY TO PURCHASE A TRANSCRIPT DENIES "THE
POOR AN ADEQUATE APPELLATE REVIEW ACCORDED TO ALL WHO HAVE MONEY ENOUGH
TO PAY THE COSTS IN ADVANCE,"  IBID.  (EMPHASIS ADDED), AND THAT "THE
TYPE OF AN APPEAL A PERSON IS AFFORDED . . . HINGES UPON WHETHER OR NOT
HE CAN PAY FOR THE ASSISTANCE OF COUNSEL,"  DOUGLAS V. CALIFORNIA, 372
U.S., AT 355 - 356 (EMPHASIS ADDED).  THE RIGHT OF APPEAL ITSELF WAS
NOT ABSOLUTELY DENIED TO THOSE TOO POOR TO PAY; BUT BECAUSE OF THE COST
OF A TRANSCRIPT AND OF COUNSEL, THE APPEAL WAS A SUBSTANTIALLY LESS
MEANINGFUL RIGHT FOR THE POOR THAN FOR THE RICH.  /76/  IT WAS ON THESE
TERMS THAT THE COURT FOUND A DENIAL OF EQUAL PROTECTION, AND THOSE
TERMS CLEARLY ENCOMPASSED DEGREES OF DISCRIMINATION ON THE BASIS OF
WEALTH WHICH DO NOT AMOUNT TO OUTRIGHT DENIAL OF THE AFFECTED RIGHT OR
INTEREST.  /77/ 

THIS IS NOT TO SAY THAT THE FORM OF WEALTH CLASSIFICATION IN THIS
CASE DOES NOT DIFFER SIGNIFICANTLY FROM THOSE RECOGNIZED IN THE
PREVIOUS DECISIONS OF THIS COURT. 

 HC120'(ORIGINAL DOCUMENT PAGE 120)' OUR PRIOR CASES HAVE DEALT
ESSENTIALLY WITH DISCRIMINATION ON THE BASIS OF PERSONAL WEALTH.  /78/
HERE, BY CONTRAST, THE CHILDREN OF THE DISADVANTAGED TEXAS SCHOOL
DISTRICTS ARE BEING DISCRIMINATED AGAINST NOT NECESSARILY BECAUSE OF
THEIR PERSONAL WEALTH OR THE WEALTH OF THEIR FAMILIES, BUT BECAUSE OF
THE TAXABLE PROPERTY WEALTH OF THE RESIDENTS OF THE DISTRICT IN WHICH
THEY HAPPEN TO LIVE.  THE APPROPRIATE QUESTION, THEN, IS WHETHER THE
SAME DEGREE OF JUDICIAL SOLICITUDE AND SCRUTINY THAT HAS PREVIOUSLY
BEEN AFFORDED WEALTH CLASSIFICATIONS IS WARRANTED HERE. 

[[HC121'(ORIGINAL DOCUMENT PAGE 121)' 

AS THE COURT POINTS OUT, ANTE, AT 28 - 29, NO PREVIOUS DECISION HAS
DEEMED THE PRESENCE OF JUST A WEALTH CLASSIFICATION TO BE SUFFICIENT
BASIS TO CALL FORTH RIGOROUS JUDICIAL SCRUTINY OF ALLEGEDLY
DISCRIMINATORY STATE ACTION.  COMPARE, E. G., HARPER V. VIRGINIA BD. OF
ELECTIONS, SUPRA, WITH, E. G., JAMES V. VALTIERRA, 402 U.S. 137
(1971).  THAT WEALTH CLASSIFICATIONS ALONE HAVE NOT NECESSARILY BEEN
CONSIDERED TO BEAR THE SAME HIGH DEGREE OF SUSPECTNESS AS HAVE
CLASSIFICATIONS BASED ON, FOR INSTANCE, RACE OR ALIENAGE MAY BE
EXPLAINABLE ON A NUMBER OF GROUNDS.  THE "POOR" MAY NOT BE SEEN AS
POLITICALLY POWERLESS AS CERTAIN DISCRETE AND INSULAR MINORITY GROUPS. 
/79/  PERSONAL POVERTY MAY ENTAIL MUCH THE SAME SOCIAL STIGMA AS
HISTORICALLY ATTACHED TO CERTAIN RACIAL OR ETHNIC GROUPS.  /80/  BUT
PERSONAL POVERTY IS NOT A PERMANENT DISABILITY; ITS SHACKLES MAY BE
ESCAPED.  PERHAPS MOST IMPORTANTLY, THOUGH, PERSONAL WEALTH MAY NOT
NECESSARILY SHARE THE GENERAL IRRELEVANCE AS A BASIS FOR LEGISLATIVE
ACTION THAT RACE OR NATIONALITY IS RECOGNIZED TO HAVE.  WHILE THE
"POOR" HAVE FREQUENTLY BEEN A LEGALLY DISADVANTAGED GROUP, /81/  IT
CANNOT BE IGNORED THAT SOCIAL LEGISLATION MUST FREQUENTLY TAKE
COGNIZANCE OF THE ECONOMIC STATUS OF OUR CITIZENS.  THUS, WE HAVE
GENERALLY GAUGED THE INVIDIOUSNESS OF WEALTH CLASSIFICATIONS WITH AN
AWARENESS OF THE IMPORTANCE OF THE INTERESTS BEING AFFECTED AND THE
RELEVANCE OF PERSONAL WEALTH TO THOSE INTERESTS. 

[[HC122'(ORIGINAL DOCUMENT PAGE 122)'  SEE HARPER V. VIRGINIA BD. OF
ELECTIONS, SUPRA. 

WHEN EVALUATED WITH THESE CONSIDERATIONS IN MIND, IT SEEMS TO ME
THAT DISCRIMINATION ON THE BASIS OF GROUP WEALTH IN THIS CASE LIKEWISE
CALLS FOR CAREFUL JUDICIAL SCRUTINY.  FIRST, IT MUST BE RECOGNIZED THAT
WHILE LOCAL DISTRICT WEALTH MAY SERVE OTHER INTERESTS, /82/  IT BEARS
NO RELATIONSHIP WHATSOEVER TO THE INTEREST OF TEXAS SCHOOL CHILDREN IN
THE EDUCATIONAL OPPORTUNITY AFFORDED THEM BY THE STATE OF TEXAS.  GIVEN
THE IMPORTANCE OF THAT INTEREST, WE MUST BE PARTICULARLY SENSITIVE TO
THE INVIDIOUS CHARACTERISTICS OF ANY FORM OF DISCRIMINATION THAT IS NOT
CLEARLY INTENDED TO SERVE IT, AS OPPOSED TO SOME OTHER DISTINCT STATE
INTEREST.  DISCRIMINATION ON THE BASIS OF GROUP WEALTH MAY NOT, TO BE
SURE, REFLECT THE SOCIAL STIGMA FREQUENTLY ATTACHED TO PERSONAL
POVERTY.  NEVERTHELESS, INSOFAR AS GROUP WEALTH DISCRIMINATION INVOLVES
WEALTH OVER WHICH THE DISADVANTAGED INDIVIDUAL HAS NO SIGNIFICANT
CONTROL, /83/ IT REPRESENTS IN FACT A MORE SERIOUS BASIS OF
DISCRIMINATION THAN DOES PERSONAL WEALTH.  FOR SUCH DISCRIMINATION IS
NO REFLECTION OF THE INDIVIDUAL'S CHARACTERISTICS OR HIS ABILITIES. 
AND THUS--PARTICULARLY IN THE CONTEXT OF A DISADVANTAGED CLASS COMPOSED
OF CHILDREN--WE HAVE PREVIOUSLY TREATED DISCRIMINATION ON A BASIS WHICH
THE INDIVIDUAL CANNOT CONTROL AS CONSTITUTIONALLY DISFAVORED. 

[[HC123'(ORIGINAL DOCUMENT PAGE 123)'  CF. WEBER V. AETNA CASUALTY &
SURETY CO., 406 U.S. 164 (1972); LEVY V. LOUISIANA, 391 U.S. 68
(1968). 

THE DISABILITY OF THE DISADVANTAGED CLASS IN THIS CASE EXTENDS AS
WELL INTO THE POLITICAL PROCESSES UPON WHICH WE ORDINARILY RELY AS
ADEQUATE FOR THE PROTECTION AND PROMOTION OF ALL INTERESTS.  HERE
LEGISLATIVE REALLOCATION OF THE STATE'S PROPERTY WEALTH MUST BE SOUGHT
IN THE FACE OF INEVITABLE OPPOSITION FROM SIGNIFICANTLY ADVANTAGED
DISTRICTS THAT HAVE A STRONG VESTED INTEREST IN THE PRESERVATION OF THE
STATUS QUO, A PROBLEM NOT COMPLETELY DISSIMILAR TO THAT FACED BY
UNDERREPRESENTED DISTRICTS PRIOR TO THE COURT'S INTERVENTION IN THE
PROCESS OF REAPPORTIONMENT, /84/  SEE BAKER V. CARR, 369 U.S. 186, 191
192 (1962). 

NOR CAN WE IGNORE THE EXTENT TO WHICH, IN CONTRAST TO OUR PRIOR
DECISIONS, THE STATE IS RESPONSIBLE FOR THE WEALTH DISCRIMINATION IN
THIS INSTANCE.  GRIFFIN, DOUGLAS, WILLIAMS, TATE, AND OUR OTHER PRIOR
CASES HAVE DEALT WITH DISCRIMINATION ON THE BASIS OF INDIGENCY WHICH
WAS ATTRIBUTABLE TO THE OPERATION OF THE PRIVATE SECTOR.  BUT WE HAVE
NO SUCH SIMPLE DE FACTO WEALTH DISCRIMINATION HERE.  THE MEANS FOR
FINANCING PUBLIC EDUCATION IN TEXAS ARE SELECTED AND SPECIFIED BY THE
STATE.  IT IS THE STATE THAT HAS CREATED LOCAL SCHOOL DISTRICTS, AND
TIED EDUCATIONAL FUNDING TO THE LOCAL PROPERTY TAX AND THEREBY TO LOCAL
DISTRICT WEALTH.  AT THE SAME TIME, GOVERNMENTALLY IMPOSED LAND USE
CONTROLS HAVE UNDOUBTEDLY ENCOURAGED AND RIGIDIFIED NATURAL TRENDS IN
THE ALLOCATION OF PARTICULAR AREAS FOR RESIDENTIAL OR COMMERCIAL USE,
/85/  AND THUS DETERMINED EACH DISTRICT'S AMOUNT OF TAXABLE PROPERTY
WEALTH.  IN SHORT, THIS CASE, IN CONTRAST TO THE COURT'S PREVIOUS
WEALTH DISCRIMINATION DECISIONS, CAN ONLY BE SEEN AS "UNUSUAL IN THE
EXTENT TO WHICH GOVERNMENTAL ACTION IS THE CAUSE OF THE WEALTH
CLASSIFICATIONS."  /86/ 

[[HC124'(ORIGINAL DOCUMENT PAGE 124)' 

IN THE FINAL ANALYSIS, THEN, THE INVIDIOUS CHARACTERISTICS OF THE
GROUP WEALTH CLASSIFICATION PRESENT IN THIS CASE MERELY TO SERVE TO
EMPHASIZE THE NEED FOR CAREFUL JUDICIAL SCRUTINY OF THE STATE'S
JUSTIFICATIONS FOR THE RESULTING INTERDISTRICT DISCRIMINATION IN THE
EDUCATIONAL OPPORTUNITY AFFORDED TO THE SCHOOLCHILDREN OF TEXAS. 

D 

THE NATURE OF OUR INQUIRY INTO THE JUSTIFICATIONS FOR STATE
DISCRIMINATION IS ESSENTIALLY THE SAME IN ALL EQUAL PROTECTION CASES:
WE MUST CONSIDER THE SUBSTANTIALITY OF THE STATE INTERESTS SOUGHT TO BE
SERVED, AND WE MUST SCRUTINIZE THE REASONABLENESS OF THE MEANS BY WHICH
THE STATE HAS SOUGHT TO ADVANCE ITS INTERESTS.  SEE POLICE DEPT. OF
CHICAGO V. MOSLEY, 408 U.S., AT 95.  DIFFERENCES IN THE APPLICATION OF
THIS TEST ARE, IN MY VIEW, A FUNCTION OF THE CONSTITUTIONAL IMPORTANCE
OF THE INTERESTS AT STAKE AND THE INVIDIOUSNESS OF THE PARTICULAR
CLASSIFICATION.  IN TERMS OF THE ASSERTED STATE INTERESTS, THE COURT
HAS INDICATED THAT IT WILL REQUIRE, FOR INSTANCE, A "COMPELLING,"
SHAPIRO V. THOMPSON, 394 U.S., AT 634, OR A "SUBSTANTIAL" OR
"IMPORTANT,"  DUNN V. BLUMSTEIN, 405 U.S., AT 343, STATE INTEREST TO
JUSTIFY DISCRIMINATION AFFECTING INDIVIDUAL INTERESTS OF CONSTITUTIONAL
SIGNIFICANCE.  WHATEVER THE DIFFERENCES, IF ANY, IN THESE DESCRIPTIONS
OF THE CHARACTER OF THE STATE INTEREST NECESSARY TO SUSTAIN SUCH
DISCRIMINATION, BASIC TO EACH IS, I BELIEVE, A CONCERN WITH THE
LEGITIMACY AND THE REALITY OF THE ASSERTED STATE INTERESTS. 

[[HC125'(ORIGINAL DOCUMENT PAGE 125)'  THUS, WHEN INTERESTS OF
CONSTITUTIONAL IMPORTANCE ARE AT STAKE, THE COURT DOES NOT STAND READY
TO CREDIT THE STATE'S CLASSIFICATION WITH ANY CONCEIVABLE LEGITIMATE
PURPOSE, /87/  BUT DEMANDS A CLEAR SHOWING THAT THERE ARE LEGITIMATE
STATE INTERESTS WHICH THE CLASSIFICATION WAS IN FACT INTENDED TO
SERVE.  BEYOND THE QUESTION OF THE ADEQUACY OF THE STATE'S PURPOSE FOR
THE CLASSIFICATION, THE COURT TRADITIONALLY HAS BECOME INCREASINGLY
SENSITIVE TO THE MEANS BY WHICH A STATE CHOOSES TO ACT AS ITS ACTION
AFFECTS MORE DIRECTLY INTERESTS OF CONSTITUTIONAL SIGNIFICANCE.  SEE,
E. G., UNITED STATES V. ROBEL, 389 U.S. 258, 265 (1967); SHELTON V.
TUCKER, 364 U.S. 479, 488 (1960).  THUS, BY NOW, "LESS RESTRICTIVE
ALTERNATIVES" ANALYSIS IS FIRMLY ESTABLISHED IN EQUAL PROTECTION
JURISPRUDENCE.  SEE DUNN V. BLUMSTEIN, SUPRA, AT 343; KRAMER V. UNION
SCHOOL DISTRICT, 395 U.S., AT 627.  IT SEEMS TO ME THAT THE RANGE OF
CHOICE WE ARE WILLING TO ACCORD THE STATE IN SELECTING THE MEANS BY
WHICH IT WILL ACT, AND THE CARE WITH WHICH WE SCRUTINIZE THE
EFFECTIVENESS OF THE MEANS WHICH THE STATE SELECTS, ALSO MUST REFLECT
THE CONSTITUTIONAL IMPORTANCE OF THE INTEREST AFFECTED AND THE
INVIDIOUSNESS OF THE PARTICULAR CLASSIFICATION.  HERE BOTH THE NATURE
OF THE INTEREST AND THE CLASSIFICATION DICTATE CLOSE JUDICIAL SCRUTINY
OF THE PURPOSES WHICH TEXAS SEEKS TO SERVE WITH ITS PRESENT EDUCATIONAL
FINANCING SCHEME AND OF THE MEANS IT HAS SELECTED TO SERVE THAT
PURPOSE. 

THE ONLY JUSTIFICATION OFFERED BY APPELLANTS TO SUSTAIN THE
DISCRIMINATION IN EDUCATIONAL OPPORTUNITY CAUSED BY THE TEXAS FINANCING
SCHEME IS LOCAL EDUCATIONAL CONTROL. 

[[HC126'(ORIGINAL DOCUMENT PAGE 126)'  PRESENTED WITH THIS
JUSTIFICATION, THE DISTRICT COURT CONCLUDED THAT "(NOT ONLY ARE
DEFENDANTS UNABLE TO DEMONSTRATE COMPELLING STATE INTERESTS FOR THEIR
CLASSIFICATIONS BASED UPON WEALTH, THEY FAIL EVEN TO ESTABLISH A
REASONABLE BASIS FOR THESE CLASSIFICATIONS."  337 F. SUPP., AT 284.  I
MUST AGREE WITH THIS CONCLUSION. 

AT THE OUTSET, I DO NOT QUESTION THAT LOCAL CONTROL OF PUBLIC
EDUCATION, AS AN ABSTRACT MATTER, CONSTITUTES A VERY SUBSTANTIAL STATE
INTEREST.  WE OBSERVED ONLY LAST TERM THAT "(DIRECT CONTROL OVER
DECISIONS VITALLY AFFECTING THE EDUCATION OF ONE'S CHILDREN IS A NEED
THAT IS STRONGLY FELT IN OUR SOCIETY."  WRIGHT V. COUNCIL OF THE CITY
OF EMPORIA, 407 U.S. 451, 469 (1972).  SEE ALSO ID., AT 477 - 478
(BURGER, C. J., DISSENTING).  THE STATE'S INTEREST IN LOCAL EDUCATIONAL
CONTROL--WHICH CERTAINLY INCLUDES QUESTIONS OF EDUCATIONAL FUNDING--HAS
DEEP ROOTS IN THE INHERENT BENEFITS OF COMMUNITY SUPPORT FOR PUBLIC
EDUCATION.  CONSEQUENTLY, TRUE STATE DEDICATION TO LOCAL CONTROL WOULD
PRESENT, I THINK, A SUBSTANTIAL JUSTIFICATION TO WEIGH AGAINST SIMPLY
INTERDISTRICT VARIATIONS IN THE TREATMENT OF A STATE'S SCHOOL
CHILDREN.  BUT I NEED NOT NOW DECIDE HOW I MIGHT ULTIMATELY STRIKE THE
BALANCE WHERE WE CONFRONTED WITH A SITUATION WHERE THE STATE'S SINCERE
CONCERN FOR LOCAL CONTROL INEVITABLY PRODUCED EDUCATIONAL INEQUALITY. 
FOR ON THIS RECORD, IT IS APPARENT THAT THE STATE'S PURPORTED CONCERN
WITH LOCAL CONTROL IS OFFERED PRIMARILY AS AN EXCUSE RATHER THAN AS A
JUSTIFICATION FOR INTERDISTRICT INEQUALITY. 

IN TEXAS, STATEWIDE LAWS REGULATE IN FACT THE MOST MINUTE DETAILS OF
LOCAL PUBLIC EDUCATION.  FOR EXAMPLE, THE STATE PRESCRIBES REQUIRED
COURSES.  /88/  ALL TEXTBOOKS MUST BE SUBMITTED FOR STATE APPROVAL,
/89/  AND ONLY APPROVED TEXTBOOKS MAY BE USED.  /90/ 
[[HC127'(ORIGINAL DOCUMENT PAGE 127)'  THE STATE HAS ESTABLISHED THE
QUALIFICATIONS NECESSARY FOR TEACHING IN TEXAS PUBLIC SCHOOLS AND THE
PROCEDURES FOR OBTAINING CERTIFICATION.  /91/ THE STATE HAS EVEN
LEGISLATED ON THE LENGTH OF THE SCHOOL DAY.  /92/  TEXAS' OWN COURTS
HAVE SAID: 

"AS A RESULT OF THE ACTS OF THE LEGISLATURE OUR SCHOOL SYSTEM IS NOT
OF MERE LOCAL CONCERN BUT IT IS STATEWIDE.  WHILE A SCHOOL DISTRICT IS
LOCAL IN TERRITORIAL LIMITS, IT IS AN INTEGRAL PART OF THE VAST SCHOOL
SYSTEM WHICH IS COEXTENSIVE WITH THE CONFINES OF THE STATE OF TEXAS." 
TREADAWAY V. WHITNEY INDEPENDENT SCHOOL DISTRICT, 205 S.W. 2D 97, 99
TEX. CT. CIV. APP. 1947).  SEE ALSO EL DORADO INDEPENDENT SCHOOL
DISTRICT V. TISDALE, 3 S.W. 2D 420, 422 (TEX. COMM'N APP. 1928). 

MOREOVER, EVEN IF WE ACCEPT TEXAS' GENERAL DEDICATION TO LOCAL
CONTROL IN EDUCATIONAL MATTERS, IT IS DIFFICULT TO FIND ANY EVIDENCE OF
SUCH DEDICATION WITH RESPECT TO FISCAL MATTERS.  IT IGNORES REALITY TO
SUGGEST--AS THE COURT DOES, ANTE, AT 49 - 50--THAT THE LOCAL PROPERTY
TAX ELEMENT OF THE TEXAS FINANCING SCHEME REFLECTS A CONSCIOUS
LEGISLATIVE EFFORT TO PROVIDE SCHOOL DISTRICTS WITH LOCAL FISCAL
CONTROL.  IF TEXAS HAD A SYSTEM TRULY DEDICATED TO LOCAL FISCAL
CONTROL, ONE WOULD EXPECT THE QUALITY OF THE EDUCATIONAL OPPORTUNITY
PROVIDED IN EACH DISTRICT TO VARY WITH THE DECISION OF THE VOTERS IN
THAT DISTRICT AS TO THE LEVEL OF SACRIFICE THEY WISH TO MAKE FOR PUBLIC
EDUCATIONAL.  IN FACT, THE TEXAS SCHEME PRODUCES PRECISELY THE OPPOSITE
RESULT. 

[[HC128'(ORIGINAL DOCUMENT PAGE 128)'  LOCAL SCHOOL DISTRICTS CANNOT
CHOOSE TO HAVE THE BEST EDUCATION IN THE STATE BY IMPOSING THE HIGHEST
TAX RATE.  INSTEAD, THE QUALITY OF THE EDUCATIONAL OPPORTUNITY OFFERED
BY ANY PARTICULAR DISTRICT IS LARGELY DETERMINED BY THE AMOUNT OF
TAXABLE PROPERTY LOCATED IN THE DISTRICT--A FACTOR OVER WHICH LOCAL
VOTERS CAN EXERCISE NO CONTROL. 

THE STUDY INTRODUCED IN THE DISTRICT COURT SHOWED A DIRECT INVERSE
RELATIONSHIP BETWEEN EQUALIZED TAXABLE DISTRICT PROPERTY WEALTH AND
DISTRICT TAX EFFORT WITH THE RESULT THAT THE PROPERTY-POOR DISTRICTS
MAKING THE HIGHEST TAX EFFORT OBTAINED THE LOWEST PER-PUPIL YIELD. 
/93/  THE IMPLICATIONS OF THE SITUATION FOR LOCAL CHOICE ARE
ILLUSTRATED BY AGAIN COMPARING THE EDGEWOOD AND ALAMO HEIGHTS SCHOOL
DISTRICTS.  IN 1967 - 1968, EDGEWOOD, AFTER CONTRIBUTING ITS SHARE TO
THE LOCAL FUND ASSIGNMENT, RAISED ONLY $26 PER PUPIL THROUGH ITS LOCAL
PROPERTY TAX, WHEREAS ALAMO HEIGHTS WAS ABLE TO RAISE $333 PER PUPIL. 
SINCE THE FUNDS RECEIVED THROUGH THE MINIMUM FOUNDATION SCHOOL PROGRAM
ARE TO BE USED ONLY FOR MINIMUM PROFESSIONAL SALARIES, TRANSPORTATION
COSTS, AND OPERATING EXPENSES, IT IS NOT HARD TO SEE THE LACK OF LOCAL
CHOICE--WITH RESPECT TO HIGHER TEACHER SALARIES TO ATTRACT MORE AND
BETTER TEACHERS, PHYSICAL FACILITIES, LIBRARY BOOKS, AND FACILITIES,
SPECIAL COURSES, OR PARTICIPATION IN SPECIAL STATE AND FEDERAL MATCHING
FUNDS PROGRAMS--UNDER WHICH A PROPERTY-POOR DISTRICT SUCH AS EDGEWOOD
IS FORCED TO LABOR.  /94/  IN FACT, BECAUSE OF THE DIFFERENCE IN
TAXABLE LOCAL PROPERTY WEALTH, EDGEWOOD WOULD HAVE TO TAX ITSELF ALMOST
NINE TIMES AS HEAVILY TO OBTAIN THE SAME YIELD AS ALAMO HEIGHTS.  /95/
AT PRESENT, THEN, LOCAL CONTROL IS A MYTH FOR MANY OF THE LOCAL SCHOOL
DISTRICTS IN TEXAS. 

[[HC129'(ORIGINAL DOCUMENT PAGE 129)'  AS ONE DISTRICT COURT HAS
OBSERVED, "RATHER THAN REPOSING IN EACH SCHOOL DISTRICT THE ECONOMIC
POWER TO FIX ITS OWN LEVEL OF PER PUPIL EXPENDITURE, THE STATE HAS SO
ARRANGED THE STRUCTURE AS TO GUARANTEE THAT SOME DISTRICTS WILL SPEND
LOW (WITH HIGH TAXES) WHILE OTHERS WILL SPEND HIGH (WITH LOW TAXES)." 
VAN DUSARTZ V. HATFIELD, 334 F. SUPP. 870, 876 (MINN. 1971). 

IN MY JUDGMENT, ANY SUBSTANTIAL DEGREE OF SCRUTINY OF THE OPERATION
OF THE TEXAS FINANCING SCHEME REVEALS THAT THE STATE HAS SELECTED MEANS
WHOLLY INAPPROPRIATE TO SECURE ITS PURPORTED INTEREST IN ASSURING ITS
SCHOOL DISTRICTS LOCAL FISCAL CONTROL.  /96/  AT THE SAME TIME,
APPELLEES HAVE POINTED OUT A VARIETY OF ALTERNATIVE FINANCING SCHEMES
WHICH MAY SERVE THE STATE'S PURPORTED INTEREST IN LOCAL CONTROL AS WELL
AS, IF NOT BETTER THAN, THE PRESENT SCHEME WITHOUT THE CURRENT
IMPAIRMENT OF THE EDUCATIONAL OPPORTUNITY OF VAST NUMBERS OF TEXAS
SCHOOLCHILDREN.  /97/  I SEE NO NEED, HOWEVER, TO EXPLORE THE PRACTICAL
OR CONSTITUTIONAL MERITS OF THOSE SUGGESTED ALTERNATIVES AS THIS TIME
FOR, WHATEVER THEIR POSITIVE OR NEGATIVE FEATURES, EXPERIENCE WITH THE
PRESENT FINANCING SCHEME IMPUGNS ANY SUGGESTION THAT IT CONSTITUTES A
SERIOUS EFFORT TO PROVIDE LOCAL FISCAL CONTROL.  IF, FOR THE SAKE OF
LOCAL EDUCATION CONTROL, THIS COURT IS TO SUSTAIN INTERDISTRICT
DISCRIMINATION IN THE EDUCATIONAL OPPORTUNITY AFFORDED TEXAS SCHOOL
CHILDREN, IT SHOULD REQUIRE THAT THE STATE PRESENT SOMETHING MORE THAN
THE MERE SHAM NOW BEFORE US. 

[[HC130'(ORIGINAL DOCUMENT PAGE 130)'

        III 

IN CONCLUSION, IT IS ESSENTIAL TO RECOGNIZE THAT AN END TO THE WIDE
VARIATIONS IN TAXABLE DISTRICT PROPERTY WEALTH INHERENT IN THE TEXAS
FINANCING SCHEME WOULD ENTAIL NONE OF THE UNTOWARD CONSEQUENCES
SUGGESTED BY THE COURT OR BY THE APPELLANTS. 

FIRST, AFFIRMANCE OF THE DISTRICT COURT'S DECISIONS WOULD HARDLY
SOUND THE DEATH KNELL FOR LOCAL CONTROL OF EDUCATION.  IT WOULD MEAN
NEITHER CENTRALIZED DECISIONMAKING NOR FEDERAL COURT INTERVENTION IN
THE OPERATION OF PUBLIC SCHOOLS.  CLEARLY, THIS SUIT HAS NOTHING TO DO
WITH LOCAL DECISIONMAKING WITH RESPECT TO EDUCATIONAL POLICY OR EVEN
EDUCATIONAL FUNDS.  IN FACT, IN STRIKING DOWN INTERDISTRICT DISPARITIES
IN TAXABLE LOCAL WEALTH, THE DISTRICT COURT TOOK THE COURSE WHICH IS
MOST LIKELY TO MAKE TRUE LOCAL CONTROL OVER EDUCATIONAL DECISIONMAKING
A REALITY FOR ALL TEXAS SCHOOL DISTRICTS. 

NOR DOES THE DISTRICT COURT'S DECISION EVEN NECESSARILY ELIMINATE
LOCAL CONTROL OF EDUCATIONAL FUNDING.  THE DISTRICT COURT STRUCK DOWN
NOTHING MORE THAN THE CONTINUED INTERDISTRICT WEALTH DISCRIMINATION
INHERENT IN THE PRESENT PROPERTY TAX.  BOTH CENTRALIZED AND
DECENTRALIZED PLANS FOR EDUCATIONAL FUNDING NOT INVOLVING SUCH
INTERDISTRICT DISCRIMINATION HAVE BEEN PUT FORWARD.  /98/  THE CHOICE
AMONG THESE OR OTHER ALTERNATIVES WOULD REMAIN WITH THE STATE, NOT WITH
THE FEDERAL COURTS.  IN THIS REGARD, IT SHOULD BE EVIDENT THAT THE
DEGREE OF FEDERAL INTERVENTION IN MATTERS OF LOCAL CONCERN WOULD BE
SUBSTANTIALLY LESS IN THIS CONTEXT THAN IN PREVIOUS DECISIONS IN WHICH
WE HAVE BEEN ASKED EFFECTIVELY TO IMPOSE A PARTICULAR SCHEME UPON THE
STATES UNDER THE GUISE OF THE EQUAL PROTECTION CLAUSE. 

[[HC131'(ORIGINAL DOCUMENT PAGE 131)'  SEE, E. G., DANDRIDGE V.
WILLIAMS, 397 U.S. 471 (1970); CF. RICHARDSON V. BELCHER, 404 U.S. 78
(1971). 

[[HC132'(ORIGINAL DOCUMENT PAGE 132)' 

STILL, WE ARE TOLD THAT THIS CASE REQUIRES US "TO CONDEMN THE
STATE'S JUDGMENT IN CONFERRING ON POLITICAL SUBDIVISIONS THE POWER TO
TAX LOCAL PROPERTY TO SUPPLY REVENUES FOR LOCAL INTERESTS."  ANTE, AT
40.  YET NO ONE IN THE COURSE OF THIS ENTIRE LITIGATION HAS EVER
QUESTIONED THE CONSTITUTIONALITY OF THE LOCAL PROPERTY TAX AS A DEVICE
FOR RAISING EDUCATIONAL FUNDS.  THE DISTRICT COURT'S DECISION, AT MOST,
RESTRICTS THE POWER OF THE STATE TO MAKE EDUCATIONAL FUNDING DEPENDENT
EXCLUSIVELY UPON LOCAL PROPERTY TAXATION SO LONG AS THERE EXISTS
INTERDISTRICT DISPARITIES IN TAXABLE PROPERTY WEALTH.  BUT IT HARDLY
ELIMINATES THE LOCAL PROPERTY TAX AS A SOURCE OF EDUCATIONAL FUNDING OR
AS A MEANS OF PROVIDING LOCAL FISCAL CONTROL.  /99/ 

THE COURT SEEKS SOLACE FOR ITS ACTION TODAY IN THE POSSIBILITY OF
LEGISLATIVE REFORM.  THE COURT'S SUGGESTIONS OF LEGISLATIVE REDRESS AND
EXPERIMENTATION WILL DOUBTLESS BE OF GREAT COMFORT TO THE
SCHOOLCHILDREN OF TEXAS' DISADVANTAGED DISTRICTS, BUT CONSIDERING THE
VESTED INTERESTS OF WEALTHY SCHOOL DISTRICTS IN THE PRESERVATION OF THE
STATUS QUO, THEY ARE WORTH LITTLE MORE.  THE POSSIBILITY OF LEGISLATIVE
ACTION IS, IN ALL EVENTS, NO ANSWER TO THIS COURT'S DUTY UNDER THE
CONSTITUTION TO ELIMINATE UNJUSTIFIED STATE DISCRIMINATION.  IN THIS
CASE WE HAVE BEEN PRESENTED WITH AN INSTANCE OF SUCH DISCRIMINATION, IN
A PARTICULARLY INVIDIOUS FORM, AGAINST AN INDIVIDUAL INTEREST OF LARGE
CONSTITUTIONAL AND PRACTICAL IMPORTANCE.  TO SUPPORT THE DEMONSTRATED
DISCRIMINATION IN THE PROVISION OF EDUCATIONAL OPPORTUNITY THE STATE
HAS OFFERED A JUSTIFICATION WHICH, ON ANALYSIS, TAKES ON AT BEST AN
EPHEMERAL CHARACTER.  THUS, I BELIEVE THAT THE WIDE DISPARITIES IN
TAXABLE DISTRICT PROPERTY WEALTH INHERENT IN THE LOCAL PROPERTY TAX
ELEMENT OF THE TEXAS FINANCING SCHEME RENDER THAT SCHEME VIOLATIVE OF
THE EQUAL PROTECTION CLAUSE.  /100/ 

[[HC133'(ORIGINAL DOCUMENT PAGE 133)' 

I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

(APPENDICES I - IV OMITTED). 

[[DFN 

/1/  SEE VAN DUSARTZ V. HATFIELD, 334 F. SUPP. 870 (MINN. 1971);
MILLIKEN V. GREEN,--MICH.--, 203 N.W. 2D 457 (1972), REHEARING GRANTED,
JAN. 1973; SERRANO V. PRIEST, 5 CAL. 3D 584, 487 P. 2D 1241 (1971);
ROBINSON V. CAHILL, 118 N.J. SUPER.  223, 287 A. 2D 187, 119 N.J.
SUPER.  40, 289 A. 2D 569 (1972); HOLLINS V. SHOFSTALL, CIVIL NO. C
253652 (SUPER.  CT. MARICOPA COUNTY, ARIZ., JULY 7, 1972).  SEE ALSO
SWEETWATER COUNTY PLANNING COM. FOR THE ORGANIZATION OF SCHOOL
DISTRICTS V. HINKLE, 491 P. 2D 1234 (WYO. 1971), JURIS.  RELINQUISHED,
493 P. 2D 1050 (WYO. 1972). 

/2/  THE DISTRICT COURT IN THIS CASE POSTPONED DECISION FOR SOME TWO
YEARS IN THE HOPE THAT THE TEXAS LEGISLATURE WOULD REMEDY THE GROSS
DISPARITIES IN TREATMENT INHERENT IN THE TEXAS FINANCING SCHEME.  IT
WAS ONLY AFTER THE LEGISLATURE FAILED TO ACT IN ITS 1971 REGULAR
SESSION THAT THE DISTRICT COURT, APPARENTLY RECOGNIZING THE LACK OF
HOPE FOR SELF-INITIATED LEGISLATIVE REFORM, RENDERED ITS DECISION.  SEE
TEXAS RESEARCH LEAGUE, PUBLIC SCHOOL FINANCE PROBLEMS IN TEXAS 13
(INTERIM REPORT 1972).  THE STRONG VESTED INTEREST OF PROPERTY-RICH
DISTRICTS IN THE EXISTING PROPERTY TAX SCHEME POSES A SUBSTANTIAL
BARRIER TO SELF-INITIATED LEGISLATIVE REFORM IN EDUCATIONAL FINANCING. 
SEE N.Y. TIMES, DEC. 19, 1972, P. 1, COL. 1. 

/3/  TEXAS PROVIDES ITS SCHOOL DISTRICTS WITH EXTENSIVE BONDING
AUTHORITY TO OBTAIN CAPITAL BOTH FOR THE ACQUISITION OF SCHOOL SITES
AND "THE CONSTRUCTION AND EQUIPMENT OF SCHOOL BUILDINGS," TEX. EDUC. 
CODE ANN ^^ 20.01 (1972), AND FOR THE ACQUISITION, CONSTRUCTION, AND
MAINTENANCE OF "GYMNASIA, STADIA, OR OTHER RECREATIONAL FACILITIES,"
ID., ^^ 20.21 - 20.22.  WHILE SUCH PRIVATE CAPITAL PROVIDES A FOURTH
SOURCE OF REVENUE, IT IS, OF COURSE, ONLY TEMPORARY IN NATURE SINCE THE
PRINCIPAL AND INTEREST OF ALL BONDS MUST ULTIMATELY BE PAID OUT OF THE
RECEIPTS OF THE LOCAL AD VALOREM PROPERTY TAX, SEE ID., ^^ 20.01,
20.04, EXCEPT TO THE EXTENT THAT OUTSIDE REVENUES DERIVED FROM THE
OPERATION OF CERTAIN FACILITIES, SUCH AS GYMNASIA, ARE EMPLOYED TO
REPAY THE BONDS ISSUED THEREON, SEE ID., ^^ 20.22, 20.25. 

/4/  SEE TEX. CONST., ART. 7, ^ 3; TEX. EDUC.  CODE ANN. ^^ 20.01 -
20.02.  AS A PART OF THE PROPERTY TAX SCHEME, BONDING AUTHORITY IS
CONFERRED UPON THE LOCAL SCHOOL DISTRICTS, SEE N. 3, SUPRA. 

/5/  SEE TEX. EDUC.  CODE ANN. ^ 20.04. 

/6/  FOR THE 1970 - 1971 SCHOOL YEAR, THE PRECISE FIGURE WAS 41.1%.
SEE TEXAS RESEARCH LEAGUE, SUPRA, N. 2, AT 9. 

/7/  SEE TEX. EDUC.  CODE ANN. ^ 20.04. 

THEORETICALLY, TEXAS LAW LIMITS THE TAX RATE FOR PUBLIC SCHOOL
MAINTENANCE, SEE ID., ^ 20.02, TO $1.50 PER $100 VALUATION, SEE ID., ^
20.04 (D).  HOWEVER, IT DOES NOT APPEAR THAT ANY TEXAS DISTRICT
PRESENTLY TAXES ITSELF AT THE HIGHEST RATE ALLOWABLE, ALTHOUGH SOME
POOR DISTRICTS ARE APPROACHING IT, SEE APP. 174. 

/8/  UNDER TEXAS LAW LOCAL DISTRICTS ARE ALLOWED TO EMPLOY DIFFERING
BASES OF ASSESSMENT--A FACT THAT INTRODUCES A THIRD VARIABLE INTO THE
LOCAL FUNDING.  SEE TEX. EDUC.  CODE ANN. ^ 20.03.  BUT NEITHER PARTY
HAS SUGGESTED THAT THIS FACTOR IS RESPONSIBLE FOR THE DISPARITIES IN
REVENUES AVAILABLE TO THE VARIOUS DISTRICTS.  CONSEQUENTLY, I BELIEVE
WE MUST DEAL WITH THIS CASE ON THE ASSUMPTION THAT DIFFERENCES IN LOCAL
METHODS OF ASSESSMENT DO NOT MEANINGFULLY AFFECT THE REVENUE-RAISING
POWER OF LOCAL DISTRICTS RELATIVE TO ONE ANOTHER.  THE COURT APPARENTLY
ADMITS AS MUCH.  SEE ANTE, AT 46.  IT SHOULD BE NOTED, MOREOVER, THAT
THE MAIN SET OF DATA INTRODUCED BEFORE THE DISTRICT COURT TO ESTABLISH
THE DISPARITIES AT ISSUE HERE WAS BASED UPON "EQUALIZED TAXABLE
PROPERTY" VALUES WHICH HAD BEEN ADJUSTED TO CORRECT FOR DIFFERING
METHODS OF ASSESSMENT.  SEE APP. C TO AFFIDAVIT OF PROFESSOR JOEL S.
BERKE. 

/9/ TEXAS HAS APPROXIMATELY 1,200 SCHOOL DISTRICT. 

/10/  SEE APPENDIX I, POST, P. 134. 

/11/  SEE IBID.  INDEED, APPELLANTS ACKNOWLEDGE THAT THE RELEVANT
DATA FROM PROFESSOR BERKE'S AFFIDAVIT SHOW "A VERY POSITIVE
CORRELATION, 0.973, BETWEEN MARKET VALUE OF TAXABLE PROPERTY PER PUPIL
AND STATE AND LOCAL REVENUES PER PUPIL."  REPLY BRIEF FOR APPELLANTS 6
N. 9. 

WHILE THE COURT TAKES ISSUE WITH MUCH OF PROFESSOR BERKE'S DATA AND
CONCLUSIONS, ANTE, AT 15 - 16, N. 38 AND 26 - 27, I DO NOT UNDERSTAND
ITS CRITICISM TO RUN TO THE BASIC FINDING OF A CORRELATION BETWEEN
TAXABLE DISTRICT PROPERTY PER PUPIL AND LOCAL REVENUES PER PUPIL.  THE
CRITIQUE OF PROFESSOR BERKE'S METHODOLOGY UPON WHICH THE COURT RELIES,
SEE GOLDSTEIN, INTERDISTRICT INEQUALITIES IN SCHOOL FINANCING:  A
CRITICAL ANALYSIS OF SERRANO V. PRIEST AND ITS PROGENY, 120 U. PA. L.
REV. 504, 523 - 525, NN. 67, 71 (1972), IS DIRECTED ONLY AT THE
SUGGESTED CORRELATIONS BETWEEN FAMILY INCOME AND TAXABLE DISTRICT
WEALTH AND BETWEEN RACE AND TAXABLE DISTRICT WEALTH.  OBVIOUSLY, THE
APPELLANTS DO NOT QUESTION THE RELATIONSHIP IN TEXAS BETWEEN TAXABLE
DISTRICT WEALTH AND PER-PUPIL EXPENDITURES; AND THERE IS NO BASIS FOR
THE COURT TO DO SO, WHATEVER THE CRITICISMS THAT MAY BE LEVELED AT
OTHER ASPECTS OF PROFESSOR BERKE'S STUDY, SEE INFRA, N. 56.     /12/
SEE APPENDIX II, POST, P. 135. 

/13/  SEE IBID. 

/14/  FOR THE 1970 - 1971 SCHOOL YEAR, THE PRECISE FIGURE WAS 10.9%.
SEE TEXAS RESEARCH LEAGUE, SUPRA, N. 2, AT 9. 

/15/  APPELLANTS MADE SUCH A CONTENTION BEFORE THE DISTRICT COURT
BUT APPARENTLY HAVE ABANDONED IT IN THIS COURT.  INDEED, DATA
INTRODUCED IN THE DISTRICT COURT SIMPLY BELIE THE ARGUMENT THAT FEDERAL
FUNDS HAVE A SIGNIFICANT EQUALIZING EFFECT.  SEE APPENDIX I, POST, P.
134.  AND, AS THE DISTRICT COURT OBSERVED, IT DOES NOT FOLLOW THAT
REMEDIAL ACTION BY THE FEDERAL GOVERNMENT WOULD EXCUSE ANY
UNCONSTITUTIONAL DISCRIMINATION EFFECTED BY THE STATE FINANCING
SCHEMS.  337 F. SUPP. 280, 284. 

/16/  FOR THE 1970 - 1971 SCHOOL YEAR, THE PRECISE FIGURE WAS 48%.
SEE TEXAS RESEARCH LEAGUE, SUPRA, N. 2, AT 9. 

/17/  SEE TEX. CONST., ART. 7 ^ 5 (SUPP. 1972).  SEE ALSO TEX.
EDUC.  CODE ANN ^ 15.01 (B). 

/18/  SEE TEX. EDUC.  CODE ANN ^ 15.01 (B). 

THE PERMANENT SCHOOL FUND IS, IN ESSENCE, A PUBLIC TRUST INITIALLY
ENDOWED WITH VAST QUANTITIES OF PUBLIC LAND, THE SALE OF WHICH HAS
PROVIDED AN ENORMOUS CORPUS THAT IN TURN PRODUCES SUBSTANTIAL ANNUAL
REVENUES WHICH ARE DEVOTED EXCLUSIVELY TO PUBLIC EDUCATION.  SEE TEX.
CONST., ART. 7, ^ 5 (SUPP. 1972).  SEE ALSO 5 REPORT OF GOVERNOR'S
COMMITTEE ON PUBLIC SCHOOL EDUCATION, THE CHALLENGE AND THE CHANCE 11
(1969) (HEREINAFTER GOVERNOR'S COMMITEEE REPORT). 

/19/  THIS IS DETERMINED FROM THE AVERAGE DAILY ATTENDANCE WITHIN
EACH DISTRICT FOR THE PRECEDING YEAR.  TEX. EDUC.  CODE ANN. ^ 15.01
(C). 

/20/  SEE ID., ^^ 16.01 - 16.975. 

/21/  SEE ID., ^^ 16.71 (2), 16.79. 

/22/  SEE ID., ^^ 16.301 - 16.316, 16.45, 16.51 - 16.63. 

/23/  SEE ID., ^^ 16.72 - 16.73, 16.76 - 16.77. 

/24/  SEE ID., ^^ 16.74 - 16.76.  THE FORMULA FOR CALCULATING EACH
DISTRICT'S SHARE IS DESCRIBED IN 5 GOVERNOR'S COMMITTEE REPORT 44 -
48. 

/25/  SEE TEX. EDUC.  CODE ANN. ^ 16.01. 

/26/  SEE 5 GOVERNOR'S COMMITTEE REPORT 40 - 41. 

/27/  SEE ID., AT 45 - 67; TEXAS RESEARCH LEAGUE, TEXAS PUBLIC
SCHOOLS UNDER THE MINIMUM FOUNDATION PROGRAM--AN EVALUATION:  1949 -
1954, PP. 67 - 68 (1954). 

/28/  TECHNICALLY, THE ECONOMIC INDEX INVOLVES A TWO-STEP
CALCULATION.  FIRST, ON THE BASIS OF THE FACTORS MENTIONED ABOVE, EACH
TEXAS COUNTY'S SHARE OF THE LOCAL FUND ASSIGNMENT IS DETERMINED.  THEN
EACH COUNTY'S SHARE IS DIVIDED AMONG ITS SCHOOL DISTRICTS ON THE BASIS
OF THEIR RELATIVE SHARES OF THE COUNTY'S ASSESSABLE WEALTH.  SEE TEX.
EDUC.  CODE ANN ^^ 16.74 - 16.76; 5 GOVERNOR'S COMMITTEE REPORT 43 -
44; TEXAS RESEARCH LEAGUE, TEXAS PUBLIC SCHOOL FINANCE:  A MAJORITY OF
EXCEPTIONS 6 - 8 (2D INTERIM REPORT 1972). 

/29/  5 GOVERNOR'S COMMITTEE REPORT 48, QUOTING STATEMENT OF DR.
EDGAR MORPHET. 

/30/  THE EXTRAORDINARILY COMPLEX STANDARDS ARE SUMMARIZED IN 5
GOVERNOR'S COMMITTEE REPORT 41 - 43. 

/31/  THE KEY ELEMENT OF THE MINIMUM FOUNDATION SCHOOL PROGRAM IS
THE PROVISION OF FUNDS FOR PROFESSIONAL SALARIES--MORE PARTICULARLY,
FOR TEACHER SALARIES.  THE PROGRAM PROVIDES EACH DISTRICT WITH FUNDS TO
PAY ITS PROFESSIONAL PAYROLL AS DETERMINED BY CERTAIN STATE STANDARDS. 
SEE TEX. EDUC.  CODE ANN. ^^ 16.301 - 16.316.  IF THE DISTRICT FAILS TO
PAY ITS TEACHERS AT THE LEVELS DETERMINED BY THE STATE STANDARDS IT
RECEIVES NOTHING FROM THE PROGRAM.  SEE ID., ^ 16.301 (C).  AT THE SAME
TIME, DISTRICTS ARE FREE TO PAY THEIR TEACHERS SALARIES IN EXCESS OF
THE LEVEL SET BY THE STATE STANDARDS, USING LOCAL REVENUES--THAT IS,
PROPERTY TAX REVENUE--TO MAKE UP THE DIFFERENCE, SEE ID., ^ 16.301
(A). 

THE STATE SALARY STANDARDS FOCUS UPON TWO FACTORS:  THE EDUCATIONAL
LEVEL AND THE EXPERIENCE OF THE DISTRICT'S TEACHERS.  SEE ID., ^^
16.301 - 16.316.  THE HIGHER THESE TWO FACTORS ARE, THE MORE FUNDS THE
DISTRICT WILL RECEIVE FROM THE FOUNDATION PROGRAM FOR PROFESSIONAL
SALARIES. 

IT SHOULD BE APPARENT THAT THE NET EFFECT OF THIS SCHEME IS TO
PROVIDE MORE ASSISTANCE TO PROPERTY-RICH DISTRICTS THAN TO PROPERTY
POOR ONES.  FOR RICH DISTRICTS ARE ABLE TO PAY THEIR TEACHERS, OUT OF
LOCAL FUNDS, SALARY INCREMENTS ABOVE THE STATE MINIMUM LEVELS.  THUS,
THE RICH DISTRICTS ARE ABLE TO ATTRACT THE TEACHERS WITH THE BEST
EDUCATION AND THE MOST EXPERIENCE.  TO COMPLETE THE CIRCLE, THIS THEN
MEANS, GIVEN THE STATE STANDARDS, THAT THE RICH DISTRICTS RECEIVE MORE
FROM THE FOUNDATION PROGRAM FOR PROFESSIONAL SALARIES THAN DO POOR
DISTRICTS.  A PORTION OF PROFESSOR BERKE'S STUDY VIVIDLY ILLUSTRATES
THE IMPACT OF THE STATE'S STANDARDS ON DISTRICTS OF VARYING WEALTH. 
SEE APPENDIX III, POST, P. 136. 

/32/  IN 1967 - 1968, ALAMO HEIGHTS SCHOOL DISTRICT HAD $49,478 IN
TAXABLE PROPERTY PER PUPIL.  SEE BERKE AFFIDAVIT, TABLE VII, APP. 216. 

/33/  IN 1967 - 1968, EDGEWOOD INDEPENDENT SCHOOL DISTRICT HAD
$5,960 IN TAXABLE PROPERTY PER PUPIL.  IBID. 

/34/  I FAIL TO UNDERSTAND THE RELEVANCE FOR THIS CASE OF THE
COURT'S SUGGESTION THAT IF ALAMO HEIGHTS SCHOOL DISTRICT, WHICH IS
APPROXIMATELY THE SAME PHYSICAL SIZE AS EDGEWOOD INDEPENDENT SCHOOL
DISTRICT BUT WHICH HAS ONLY ONE-FOURTH AS MANY STUDENTS, HAD THE SAME
NUMBER OF STUDENTS AS EDGEWOOD, THE FORMER'S PER-PUPIL EXPENDITURE
WOULD BE CONSIDERABLY CLOSER TO THE LATTER'S.  ANTE, AT 13 N. 33. 
OBVIOUSLY, THIS IS TRUE, BUT IT DOES NOT ALTER THE SIMPLE FACT THAT
EDGEWOOD DOES HAVE FOUR TIMES AS MANY STUDENTS BUT NOT FOUR TIMES AS
MUCH TAXABLE PROPERTY WEALTH.  FROM THE PERSPECTIVE OF EDGEWOOD'S
SCHOOL CHILDREN THEN--THE PERSPECTIVE THAT ULTIMATELY COUNTS HERE-
EDGEWOOD IS CLEARLY A MUCH POORER DISTRICT THAN ALAMO HEIGHTS.  THE
QUESTION HERE IS NOT WHETHER DISTRICTS HAVE EQUAL TAXABLE PROPERTY
WEALTH IN ABSOLUTE TERMS, BUT WHETHER DISTRICTS HAVE DIFFERING TAXABLE
WEALTH GIVEN THEIR RESPECTIVE SCHOOL-AGE POPULATIONS. 

/35/  IN THE FACE OF THESE GROSS DISPARITIES IN TREATMENT WHICH
EXPERIENCE WITH THE TEXAS FINANCING SCHEME HAS REVEALED, I CANNOT
ACCEPT THE COURT'S SUGGESTION THAT WE ARE DEALING HERE WITH A REMEDIAL
SCHEME TO WHICH WE SHOULD ACCORD SUBSTANTIAL DEFERENCE BECAUSE OF ITS
ACCOMPLISHMENTS RATHER THAN CRITICIZE IT FOR ITS FAILURES.  ANTE, AT 38
- 39 .  MOREOVER, TEXAS'  FINANCING SCHEME IS HARDLY REMEDIAL
LEGISLATION OF THE TYPE FOR WHICH WE HAVE PREVIOUSLY SHOWN SUBSTANTIAL
TOLERANCE.  SUCH LEGISLATION MAY IN FACT EXTEND THE VOTE TO "PERSONS
WHO OTHERWISE WOULD BE DENIED IT BY STATE LAW," KATZENBACH V. MORGAN,
384 U.S. 641, 657 (1966), OR IT MAY ELIMINATE THE EVILS OF THE PRIVATE
BAIL BONDSMAN, SCHILB V. KUEBEL, 401 U.S. 357 (1971).  BUT THOSE ARE
INSTANCES IN WHICH A LEGISLATIVE BODY HAS SOUGHT TO REMEDY PROBLEMS FOR
WHICH IT CANNOT BE SAID TO HAVE BEEN DIRECTLY RESPONSIBLE.  BY
CONTRAST, PUBLIC EDUCATION IS THE FUNCTION OF THE STATE IN TEXAS, AND
THE RESPONSIBILITY FOR ANY DEFECT IN THE FINANCING SCHEME MUST
ULTIMATELY REST WITH THE STATE.  IT IS THE STATE'S OWN SCHEME WHICH HAS
CAUSED THE FUNDING PROBLEM, AND, THUS VIEWED, THAT SCHEME CAN HARDLY BE
DEEMED REMEDIAL. 

/36/  CF. APPENDIX I, POST, P. 134. 

/37/  BRIEF FOR APPELLANTS 3. 

/38/  THUS, IN 1967 - 1968, EDGEWOOD HAD A TOTAL OF $248 PER PUPIL
IN STATE AND LOCAL FUNDS COMPARED WITH A TOTAL OF $558 PER PUPIL FOR
ALAMO HEIGHTS.  SEE BERKE AFFIDAVIT, TABLE X, APP. 219.  FOR 1970 -
1971, THE RESPECTIVE TOTALS WERE $418 AND $913.  SEE TEXAS RESEARCH
LEAGUE, SUPRA, N. 2, AT 14. 

/39/  NOT ONLY DOES THE LOCAL PROPERTY TAX PROVIDE APPROXIMATELY 40%
OF THE FUNDS EXPENDED ON PUBLIC EDUCATION, BUT IT IS THE ONLY SOURCE OF
FUNDS FOR SUCH ESSENTIAL ASPECTS OF EDUCATIONAL FINANCING AS THE
PAYMENT OF SCHOOL BONDS, SEE N. 3, SUPRA, AND THE PAYMENT OF THE
DISTRICT'S SHARE OF THE LOCAL FUND ASSIGNMENT, AS WELL AS FOR NEARLY
ALL EXPENDITURES ABOVE THE MINIMUMS ESTABLISHED BY THE FOUNDATION
SCHOOL PROGRAM. 

/40/  COMPARE, E. G., J. COLEMAN, ET. AL., EQUALITY OF EDUCATIONAL
OPPORTUNITY 290 - 330 (1966), JENCKS, THE COLEMAN REPORT AND THE
CONVENTIONAL WISDOM, IN ON EQUALITY OF EDUCATIONAL OPPORTUNITY 69, 91 -
104 (F. MOSTELLER & D. MOYNIHAN EDS.  1972), WITH, E. G., J. GUTHRIE,
G. KLEINDORFER, H. LEVIN, & R. STOUT, SCHOOLS AND INEQUALITY 79 - 90
(1971); KIESLING, MEASURING A LOCAL GOVERNMENT SERVICE:  A STUDY OF
SCHOOL DISTRICTS IN NEW YORK STATE, 49 REV. ECON.  & STATISTICS 356
(1967). 

/41/  COMPARE BERKE ANSWERS TO INTERROGATORIES 10 ("DOLLAR
EXPENDITURES ARE PROBABLY THE BEST WAY OF MEASURING THE QUALITY OF
EDUCATIONAL AFFORDED STUDENTS . . ."), WITH GRAHAM DEPOSITION 39 ("(IT
IS NOT JUST NECESSARILY THE MONEY, NO. IT IS HOW WISELY YOU SPEND
IT").  IT WARRANTS NOTING THAT EVEN APPELLANTS' WITNESS, MR. GRAHAM,
QUALIFIED THE IMPORTANCE OF MONEY ONLY BY THE REQUIREMENT OF WISE
EXPENDITURE.  QUITE OBVIOUSLY, A DISTRICT WHICH IS PROPERTY POOR IS
POWERLESS TO MATCH THE EDUCATION PROVIDED BY A PROPERTY-RICH DISTRICT,
ASSUMING EACH DISTRICT ALLOCATES ITS FUNDS WITH EQUAL WISDOM. 

/42/  SEE BRIEF OF AMICI CURIAE, INTER ALIA, SAN MARINO UNIFIED
SCHOOL DISTRICT; BEVERLY HILLS UNIFIED SCHOOL DISTRICT; BRIEF OF AMICI
CURIAE, INTER ALIA, BLOOMFIELD HILLS, MICHIGAN, SCHOOL DISTRICT;
DEARBORN CITY, MICHIGAN, SCHOOL DISTRICT; GROSSE POINTE, MICHIGAN,
PUBLIC SCHOOL SYSTEM. 

/43/  ANSWERS TO PLAINTIFFS' INTERROGATORIES, APP. 115. 

/44/  IBID.  MOREOVER, DURING THE SAME PERIOD, 37.17% OF THE
TEACHERS IN ALAMO HEIGHTS HAD ADVANCED DEGREES, WHILE ONLY 14.98% OF
EDGEWOOD'S FACULTY HAD SUCH DEGREES.  SEE ID., AT 116. 

/45/  ID., AT 117. 

/46/  ID., AT 118. 

/47/  IN THE 1967 - 1968 SCHOOL YEAR, EDGEWOOD HAD 22,862 STUDENTS
AND 864 TEACHERS, A RATIO OF 26.5 TO 1.  SEE ID., AT 110,114.  IN ALAMO
HEIGHTS, FOR THE SAME SCHOOL YEAR, THERE WERE 5,432 STUDENTS AND 265
TEACHERS FOR A RATIO OF 20.5 TO 1.  IBID. 

/48/  REPLY BRIEF FOR APPELLANTS 17.  SEE ALSO, ID., AT 5, 15 - 16. 

/49/  INDEED, EVEN APART FROM THE DIFFERENTIAL TREATMENT INHERENT IN
THE LOCAL PROPERTY TAX, THE SIGNIFICANT INTERDISTRICT DISPARITIES IN
STATE AID RECEIVED UNDER THE MINIMUM FOUNDATION SCHOOL PROGRAM WOULD
SEEM TO RAISE SUBSTANTIAL EQUAL PROTECTION QUESTIONS. 

/50/  I FIND PARTICULARLY STRONG INTIMATIONS OF SUCH A VIEW IN THE
MAJORITY'S EFFORTS TO DENIGRATE THE CONSTITUTIONAL SIGNIFICANCE OF
CHILDREN IN PROPERTY-POOR DISTRICTS "RECEIVING A POORER QUALITY
EDUCATION THAN THAT AVAILABLE TO CHILDREN IN DISTRICTS HAVING MORE
ASSESSABLE WEALTH" WITH THE ASSERTION "THAT, AT LEAST WHERE WEALTH IS
INVOLVED, THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE ABSOLUTE
EQUALITY OR PRECISELY EQUAL ADVANTAGES."  ANTE, AT 23, 24.  THE COURT,
TO BE SURE, RESTRICTS ITS REMARK TO "WEALTH" DISCRIMINATION.  BUT THE
LOGICAL BASIS FOR SUCH A RESTRICTION IS NOT EXPLAINED BY THE COURT, NOR
IS IT OTHERWISE APPARENT, SEE INFRA, AT 117 - 120 AND N. 77. 

/51/  SEE ANSWERS TO INTERROGATORIES BY DR. JOEL S. BERKE, ANS.  17,
P. 9; ANS.  48 - 51, PP. 22 - 24; ANS.  88 - 89, PP. 41 - 42;
DEPOSITION OF DR. DANIEL C. MORGAN, JR., AT 52 - 55; AFFIDAVIT OF DR.
DANIEL C. MORGAN, JR., APP. 242 - 243. 

/52/  IT IS TRUE THAT IN TWO PREVIOUS CASES THIS COURT HAS SUMMARILY
AFFIRMED DISTRICT COURT DISMISSALS OF CONSTITUTIONAL ATTACKS UPON OTHER
STATE EDUCATIONAL FINANCING SCHEMES.  SEE MCINNIS V. SHAPIRO, 293 F.
SUPP. 327 (ND ILL. 1968), AFF'D PER CURIAM, SUB NOM.  MCINNIS V.
OGILVIE, 394 U.S. 322 (1969); BURRUSS V. WILKERSON, 310 F. SUPP. 572
(WD VA. 1969), AFF'D PER CURIAM, 397 U.S. 44 (1970).  BUT THOSE
DECISIONS CANNOT BE CONSIDERED DISPOSITIVE OF THIS ACTION, FOR THE
THRUST OF THOSE SUITS DIFFERED MATERIALLY FROM THAT OF THE PRESENT
CASE.  IN MCINNIS, THE PLAINTIFFS ASSERTED THAT "ONLY A FINANCING
SYSTEM WHICH APPORTIONS PUBLIC FUNDS ACCORDING TO THE EDUCATIONAL NEEDS
OF THE STUDENTS SATISFIES THE FOURTEENTH AMENDMENT."  293 F. SUPP., AT
331.  THE DISTRICT COURT CONCLUDED THAT "(1) THE FOURTEENTH AMENDMENT
DOES NOT REQUIRE THAT PUBLIC SCHOOL EXPENDITURES BE MADE ONLY ON THE
BASIS OF PUPILS' EDUCATIONAL NEEDS, AND (2) THE LACK OF JUDICIALLY
MANAGEABLE STANDARDS MAKES THIS CONTROVERSY NONJUSTICIABLE."  ID., AT
329.  THE BURRUSS DISTRICT COURT DISMISSED THAT SUIT ESSENTIALLY IN
RELIANCE ON MCINNIS WHICH IT FOUND TO BE "SCARCELY DISTINGUISHABLE." 
310 F. SUPP., AT 574.  THIS SUIT INVOLVES NO EFFORT TO OBTAIN AN
ALLOCATION OF SCHOOL FUNDS THAT CONSIDERS ONLY EDUCATIONAL NEED.  THE
DISTRICT COURT RULED ONLY THAT THE STATE MUST REMEDY THE DISCRIMINATION
RESULTING FROM THE DISTRIBUTION OF TAXABLE LOCAL DISTRICT WEALTH WHICH
HAS HERETOFORE PREVENTED MANY DISTRICTS FROM TRULY EXERCISING LOCAL
FISCAL CONTROL.  FURTHERMORE, THE LIMITED HOLDING OF THE DISTRICT COURT
PRESENTS NONE OF THE PROBLEMS OF JUDICIAL MANAGEMENT WHICH WOULD EXIST
IF THE FEDERAL COURTS WERE TO ATTEMPT TO ENSURE THE DISTRIBUTION OF
EDUCATIONAL FUNDS SOLELY ON THE BASIS OF EDUCATIONAL NEED, SEE INFRA,
AT 130 - 132. 

/53/  TEX. CONST., ART. 7, ^ 1. 

/54/  PROBLEMS OF REMEDY MAY BE ANOTHER MATTER.  IF PROVISION OF THE
RELIEF SOUGHT IN A PARTICULAR CASE REQUIRED IDENTIFICATION OF EACH
MEMBER OF THE AFFECTED CLASS, AS IN THE CASE OF MONETARY RELIEF, THE
NEED FOR CLARITY IN DEFINING THE CLASS IS APPARENT.  BUT THIS INVOLVES
THE PROCEDURAL PROBLEMS INHERENT IN CLASS ACTION LITIGATION, NOT THE
CHARACTER OF THE ELEMENTS ESSENTIAL TO EQUAL PROTECTION ANALYSIS.  WE
ARE CONCERNED HERE ONLY WITH THE LATTER.  MOREOVER, IT IS EVIDENT THAT
IN CASES SUCH AS THIS PROVISION OF APPROPRIATE RELIEF, WHICH TAKES THE
INJUNCTIVE FORM, IS NOT A SERIOUS PROBLEM SINCE IT IS ENOUGH TO DIRECT
THE ACTION OF APPROPRIATE OFFICIALS.  CF POTTS V. FLAX, 313 F. 2D 284,
288 - 290 (CA5 1963).     /55/  I ASSUME THE COURT WOULD LODGE THE SAME
CRITICISM AGAINST THE VALIDITY OF THE FINDING OF A CORRELATION BETWEEN
POOR DISTRICTS AND RACIAL MINORITIES. 

/56/  THE COURT REJECTS THE DISTRICT COURT'S FINDING OF A
CORRELATION BETWEEN POOR PEOPLE AND POOR DISTRICTS WITH THE ASSERTION
THAT "THERE IS REASON TO BELIEVE THAT THE POOREST FAMILIES ARE NOT
NECESSARILY CLUSTERED IN THE POOREST PROPERTY DISTRICTS" IN TEXAS. 
ANTE, AT 23.  IN SUPPORT OF ITS CONCLUSION THE COURT OFFERS ABSOLUTELY
NO DATA--WHICH IT CANNOT ON THIS RECORD--CONCERNING THE DISTRIBUTION OF
POOR PEOPLE IN TEXAS TO REFUTE THE DATA INTRODUCED BELOW BY APPELLEES;
IT RELIES INSTEAD ON A RECENT LAW REVIEW NOTE CONCERNED SOLELY WITH THE
STATE OF CONNECTICUT, NOTE, A STATISTICAL ANALYSIS OF THE SCHOOL
FINANCE DECISIONS:  ON WINNING BATTLES AND LOSING WARS, 81 YALE L. J.
1303 (1972).  COMMON SENSE SUGGESTS THAT THE BASIS FOR DRAWING A
DEMOGRAPHIC CONCLUSION WITH RESPECT TO A GEOGRAPHICALLY LARGE, URBAN
RURAL, INDUSTRIAL-AGRICULTURAL STATE SUCH AS TEXAS FROM A
GEOGRAPHICALLY SMALL, DENSELY POPULATED, HIGHLY INDUSTRIALIZED STATE
SUCH AS CONNECTICUT IS DOUBTFUL AT BEST. 

FURTHERMORE, THE ARTICLE UPON WHICH THE COURT RELIES TO DISCREDIT
THE STATISTICAL PROCEDURES EMPLOYED BY PROFESSOR BERKE TO ESTABLISH THE
CORRELATION BETWEEN POOR PEOPLE AND POOR DISTRICTS, SEE N. 11, SUPRA,
BASED ITS CRITICISM PRIMARILY ON THE FACT THAT ONLY FOUR OF THE 110
DISTRICTS STUDIES WERE IN THE LOWEST OF THE FIVE CATEGORIES, WHICH WERE
DETERMINED BY RELATIVE TAXABLE PROPERTY PER PUPIL, AND MOST DISTRICTS
CLUSTERED IN THE MIDDLE THREE GROUPS.  SEE GOLDSTEIN, INTERDISTRICT
INEQUALITIES IN SCHOOL FINANCING:  A CRITICAL ANALYSIS OF SERRANO V.
PRIEST AND ITS PROGENY, 120 U. PA. L. REV. 504, 524 N. 67 (1972).  SEE
ALSO ANTE, AT 26 - 27.  BUT THE COURT FAILS TO NOTE THAT THE FOUR
POOREST DISTRICTS IN THE SAMPLE HAD OVER 50,000 STUDENTS WHICH
CONSTITUTED 10% OF THE STUDENTS IN THE ENTIRE SAMPLE.  IT APPEARS,
MOREOVER, THAT EVEN WHEN THE RICHEST AND THE POOREST CATEGORIES ARE
ENLARGED TO INCLUDE IN EACH CATEGORY 20% OF THE STUDENTS IN THE SAMPLE,
THE CORRELATION BETWEEN DISTRICT AND INDIVIDUAL WEALTH HOLDS TRUE.  SEE
BRIEF FOR THE GOVERNORS OF MINNESOTA, MAINE, SOUTH DAKOTA, WISCONSIN,
AND MICHIGAN AS AMICI CURIAE 17 N. 21. 

FINALLY, IT CANNOT BE IGNORED THAT THE DATA INTRODUCED BY APPELLEES
WENT UNCHALLENGED IN THE DISTRICT COURT.  THE MAJORITY'S WILLINGNESS TO
PERMIT APPELLANTS TO LITIGATE THE CORRECTNESS OF THOSE DATA FOR THE
FIRST TIME BEFORE THIS TRIBUNAL--WHERE EFFECTIVE RESPONSE BY APPELLEES
IS IMPOSSIBLE--IS BOTH UNFAIR AND JUDICIALLY UNSOUND. 

/57/ THIRD AMENDED COMPLAINT APP. 23.  CONSISTENT WITH THIS THEORY,
APPELLEES PURPORTED TO REPRESENT, AMONG OTHERS, A CLASS COMPOSED OF
"ALL . . . SCHOOL CHILDREN IN INDEPENDENT SCHOOL DISTRICTS . . . WHO .
. . HAVE BEEN DEPRIVED OF THE EQUAL PROTECTION OF THE LAW UNDER THE
FOURTEENTH AMENDMENT WITH REGARD TO PUBLIC SCHOOL EDUCATION BECAUSE OF
THE LOW VALUE OF THE PROPERTY LYING WITHIN THE INDEPENDENT SCHOOL
DISTRICTS IN WHICH THEY RESIDE."  ID., AT 15. 

/58/  THE DEGREE OF JUDICIAL SCRUTINY THAT THIS PARTICULAR
CLASSIFICATION DEMANDS IS A DISTINCT ISSUE WHICH I CONSIDER IN PART II,
C, INFRA. 

/59/  INDEED, THE COURT'S THEORY WOULD RENDER THE ESTABLISHED
CONCEPT OF FUNDAMENTAL INTERESTS IN THE CONTEXT OF EQUAL PROTECTION
ANALYSIS SUPERFLUOUS, FOR THE SUBSTANTIVE CONSTITUTIONAL RIGHT ITSELF
REQUIRES THAT THIS COURT STRICTLY SCRUTINIZE ANY ASSERTED STATE
INTEREST FOR RESTRICTING OR DENYING ACCESS TO ANY PARTICULAR GUARANTEED
RIGHT, SEE, E. G., UNITED STATES V. O'BRIEN, 391 U.S. 367, 377 (1968);
COX V. LOUISIANA, 379 U.S. 536, 545 - 551 (1965). 

/60/  IT IS INTERESTING THAT IN ITS EFFORT TO RECONCILE THE STATE
VOTING RIGHTS CASES WITH ITS THEORY OF FUNDAMENTALITY THE MAJORITY CAN
MUSTER NOTHING MORE THAN THE CONTENTION THAT "(THE CONSTITUTIONAL
UNDERPINNINGS OF THE RIGHT TO EQUAL TREATMENT IN THE VOTING PROCESS CAN
NO LONGER BE DOUBTED . . . ."  ANTE, AT 34 N. 74 (EMPHASIS ADDED).  IF,
BY THIS, THE COURT INTENDS TO RECOGNIZE A SUBSTANTIVE CONSTITUTIONAL
"RIGHT TO EQUAL TREATMENT IN THE VOTING PROCESS"  INDEPENDENT OF THE
EQUAL PROTECTION CLAUSE, THE SOURCE OF SUCH A RIGHT IS CERTAINLY A
MYSTERY TO ME. 

/61/  IT IS TRUE THAT GRIFFIN AND DOUGLAS ALSO INVOLVED DISCRIMINATION
AGAINST INDIGENTS, THAT IS, WEALTH DISCRIMINATION.  BUT, AS THE
MAJORITY POINTS OUT, ANTE, AT 28 - 29, THE COURT HAS NEVER DEEMED
WEALTH DISCRIMINATION ALONE TO BE SUFFICIENT TO REQUIRE STRICT JUDICIAL
SCRUTINY; RATHER, SUCH REVIEW OF WEALTH CLASSIFICATIONS HAS BEEN
APPLIED ONLY WHERE THE DISCRIMINATION AFFECTS AN IMPORTANT INDIVIDUAL
INTEREST, SEE, E. G., HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663
(1966).  THUS, I BELIEVE GRIFFIN AND DOUGLAS CAN ONLY BE UNDERSTOOD AS
PREMISED ON A RECOGNITION OF THE FUNDAMENTAL IMPORTANCE OF THE CRIMINAL
APPELLATE PROCESS. 

/62/  SEE, E. G., DUNCAN V. LOUISIANA, 391 U.S. 145 (1968) (RIGHT TO
JURY TRIAL); WASHINGTON V. TEXAS, 388 U.S. 14 (1967) (RIGHT TO
COMPULSORY PROCESS); POINTER V. TEXAS, 380 U.S. 400 (1965) (RIGHT TO
CONFRONT ONE'S ACCUSERS). 

/63/  SEE, E. G., MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 191 - 192
(1964); LOVING V. VIRGINIA, 388 U.S. 1, 9 (1967). 

/64/  SEE OYAMA V. CALIFORNIA, 332 U.S. 633, 644 - 646 (1948);
KOREMATSU V. UNITED STATES, 323 U.S. 214, 216 (1944). 

/65/  SEE GRAHAM V. RICHARDSON, 403 U.S. 365, 372 (1971). 

/66/  THE COURT NOTED THAT THE CHALLENGED "PROVISION STRIPS FROM
INDIGENT DEFENDANTS THE ARRAY OF PROTECTIVE EXEMPTIONS KANSAS HAS
ERECTED FOR OTHER CIVIL JUDGMENT DEBTORS, INCLUDING RESTRICTIONS ON THE
AMOUNT OF DISPOSABLE EARNINGS SUBJECT TO GARNISHMENT, PROTECTION OF THE
DEBTOR FROM WAGE GARNISHMENT AT TIMES OF SEVERE PERSONAL OR FAMILY
SICKNESS, AND EXEMPTION FROM ATTACHMENT AND EXECUTION ON A DEBTOR'S
PERSONAL CLOTHING, BOOKS, AND TOOLS OF TRADE."  407 U.S., AT 135. 

/67/  SEE GENERALLY GUNTHER, THE SUPERME COURT, 1971 TERM, FOREWORD:
IN SEARCH OF EVOLVING DOCTRINE ON A CHANGING COURT:  A MODEL FOR A
NEWER EQUAL PROTECTION, 86 HARV. L. REV. 1 (1972). 

/68/  SEE BRIEF OF THE NATIONAL EDUCATION ASSOCIATION ET AL. AS
AMICI CURIAE APP. A. ALL 48 OF THE 50 STATES WHICH MANDATE PUBLIC
EDUCATION ALSO HAVE COMPULSORY ATTENDANCE LAWS WHICH REQUIRE SCHOOL
ATTENDANCE FOR EIGHT YEARS OR MORE.  ID., AT 20 - 21. 

/69/  PRIOR TO THIS COURT'S DECISION IN BROWN V. BOARD OF EDUCATION,
347 U.S. 483 (1954), EVERY STATE HAD A CONSTITUTIONAL PROVISION
DIRECTING THE ESTABLISHMENT OF A SYSTEM OF PUBLIC SCHOOLS.  BUT AFTER
BROWN, SOUTH CAROLINA REPEALED ITS CONSTITUTIONAL PROVISION, AND
MISSISSIPPI MADE ITS CONSTITUTIONAL PROVISION DISCRETIONARY WITH THE
STATE LEGISLATURE. 

/70/  DEVELOPMENTS IN THE LAW--EQUAL PROTECTION, 82 HARV. L. REV.
1065, 1129 (1969). 

/71/  THE PRESIDENT'S COMMISSION ON SCHOOL FINANCE, SCHOOLS, PEOPLE,
& MONEY:  THE NEED FOR EDUCATIONAL REFORM 11 (1972), CONCLUDED THAT
"(LITERALLY, WE CANNOT SURVIVE AS A NATION OR AS INDIVIDUALS WITHOUT
(EDUCATION)."  IT FURTHER OBSERVED THAT:  "(IN A DEMOCRATIC SOCIETY,
PUBLIC UNDERSTANDING OF PUBLIC ISSUES IS NECESSARY FOR PUBLIC SUPPORT. 
SCHOOLS GENERALLY INCLUDE IN THEIR COURSES OF INSTRUCTION A WIDE
VARIETY OF SUBJECTS RELATED TO THE HISTORY, STRUCTURE AND PRINCIPLES OF
AMERICAN GOVERNMENT AT ALL LEVELS.  IN SO DOING, SCHOOLS PROVIDE
STUDENTS WITH A BACKGROUND OF KNOWLEDGE WHICH IS DEEMED AN ABSOLUTE
NECESSITY FOR RESPONSIBLE CITIZENSHIP."  ID., AT 13 - 14. 

/72/ SEE J. GUTHRIE, G. KLEINDORFER, H. LEVIN, AND R. STOUT, SCHOOLS
AND INEQUALITY 103-105 (1971); R. HESS & J. TORNEY, THE DEVELOPMENT OF
POLITICAL ATTITUDES IN CHILDREN 217 - 218 (1967); CAMPBELL, THE PASSIVE
CITIZEN, IN 6 ACTA SOCIOLOGICA, NOS. 1 - 2, P. 9, AT 20 - 21 (1962). 

THAT EDUCATION IS THE DOMINANT FACTOR IN INFLUENCING POLITICAL
PARTICIPATION AND AWARENESS IS SUFFICIENT, I BELIEVE, TO DISPOSE OF THE
COURT'S SUGGESTION THAT, IN ALL EVENTS, THERE IS NO INDICATION THAT
TEXAS IS NOT PROVIDING ALL OF ITS CHILDREN WITH A SUFFICIENT EDUCATION
TO ENJOY THE RIGHT OF FREE SPEECH AND TO PARTICIPATE FULLY IN THE
POLITICAL PROCESS.  ANTE, AT 36 - 37.  THERE IS, IN SHORT, NO LIMIT ON
THE AMOUNT OF FREE SPEECH OR POLITICAL PARTICIPATION THAT THE
CONSTITUTION GUARANTEES.  MOREOVER, IT SHOULD BE OBVIOUS THAT THE
POLITICAL PROCESS, LIKE MOST OTHER ASPECTS OF SOCIAL INTERCOURSE, IS TO
SOME DEGREE COMPETITIVE.  IT IS THUS OF LITTLE BENEFIT TO AN INDIVIDUAL
FROM A PROPERTY-POOR DISTRICT TO HAVE "ENOUGH" EDUCATION IF THOSE
AROUND HIM HAVE MORE THAN "ENOUGH."  CF. SWEATT V. PAINTER, 339 U.S.
629, 633 - 634 (1950). 

/73/  SEE UNITED STATES DEPARTMENT OF COMMERCE, BUREAU OF THE
CENSUS, VOTING AND REGISTRATION IN THE ELECTION OF NOVEMBER 1968,
CURRENT POPULATION REPORTS, SERIES P - 20, NO. 192, TABLE 4, P. 17. 
SEE ALSO SENATE SELECT COMMITTEE ON EQUAL EDUCATIONAL OPPORTUNITY, 92D
CONG., 2D SESS., LEVIN, THE COSTS TO THE NATION OF INADEQUATE EDUCATION
46 - 47 (COMM. PRINT 1972). 

/74/  I BELIEVE THAT THE CLOSE NEXUS BETWEEN EDUCATION AND OUR
ESTABLISHED CONSTITUTIONAL VALUES WITH RESPECT TO FREEDOM OF SPEECH AND
PARTICIPATION IN THE POLITICAL PROCESS MAKES THIS A DIFFERENT CASE FROM
OUR PRIOR DECISIONS CONCERNING DISCRIMINATION AFFECTING PUBLIC WELFARE,
SEE, E. G., DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), OR HOUSING,
SEE, E. G., LINDSEY V. NORMET, 405 U.S. 56 (1972).  THERE CAN BE NO
QUESTION THAT, AS THE MAJORITY SUGGESTS, CONSTITUTIONAL RIGHTS MAY BE
LESS MEANINGFUL FOR SOMEONE WITHOUT ENOUGH TO EAT OR WITHOUT DECENT
HOUSING.  ANTE, AT 37.  BUT THE CRUCIAL DIFFERENCE LIES IN THE
CLOSENESS OF THE RELATIONSHIP.  WHATEVER THE SEVERITY OF THE IMPACT OF
INSUFFICIENT FOOD OR INADEQUATE HOUSING ON A PERSON'S LIFE, THEY HAVE
NEVER BEEN CONSIDERED TO BEAR THE SAME DIRECT AND IMMEDIATE
RELATIONSHIP TO CONSTITUTIONAL CONCERNS FOR FREE SPEECH AND FOR OUR
POLITICAL PROCESSES AS EDUCATION HAS LONG BEEN RECOGNIZED TO BEAR. 
PERHAPS, THE BEST EVIDENCE OF THIS FACT IS THE UNIQUE STATUS WHICH HAS
BEEN ACCORDED PUBLI C EDUCATION AS THE SINGLE PUBLIC SERVICE NEARLY
UNANIMOUSLY GUARANTEED IN THE CONSTITUTIONS OF OUR STATES, SEE SUPRA,
AT 111 - 112 AND N. 68.  EDUCATION, IN TERMS OF CONSTITUTIONAL VALUES,
IS MUCH MORE ANALOGOUS, IN MY JUDGMENT, TO THE RIGHT TO VOTE IN STATE
ELECTIONS THAN TO PUBLIC WELFARE OR PUBLIC HOUSING.  INDEED, IT IS NOT
WITHOUT SIGNIFICANCE THAT WE HAVE LONG RECOGNIZED EDUCATION AS AN
ESSENTIAL STEP IN PROVIDING THE DISADVANTAGED WITH THE TOOLS NECESSARY
TO ACHIEVE ECONOMIC SELF-SUFFICIENCY. 

/75/  THE MAJORITY'S RELIANCE ON THIS COURT'S TRADITIONAL DEFERENCE
TO LEGISLATIVE BODIES IN MATTERS OF TAXATION FALLS WIDE OF THE MARK IN
THE CONTEXT OF THIS PARTICULAR CASE.  SEE ANTE, AT 40 - 41.  THE
DECISIONS ON WHICH THE COURT RELIES WERE SIMPLY TAXPAYER SUITS
CHALLENGING THE CONSTITUTIONALITY OF A TAX BURDEN IN THE FACE OF
EXEMPTIONS OR DIFFERENTIAL TAXATION AFFORDED TO OTHERS.  SEE, E. G.,
ALLIED STORES OF OHIO V. BOWERS, 358 U.S. 522 (1959); MADDEN V.
KENTUCKY, 309 U.S. 83 (1940); CARMICHAEL V. SOUTHERN COAL & COKE CO.,
301 U.S. 495 (1937); BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232
(1890).  THERE IS NO QUESTION THAT, FROM THE PERSPECTIVE OF THE
TAXPAYER, THE EQUAL PROTECTION CLAUSE "IMPOSES NO IRON RULE OF
EQUALITY, PROHIBITING THE FLEXIBILITY AND VARIETY THAT ARE APPROPRIATE
TO REASONABLE SCHEMES OF STATE TAXATION.  THE STATE MAY IMPOSE
DIFFERENT SPECIFIC TAXES UPON DIFFERENT TRADES AND PROFESSIONS AND MAY
VARY THE RATE OF EXCISE UPON VARIOUS PRODUCTS."  ALLIED STORES OF OHIO
V. BOWERS, SUPRA, AT 526 - 527.  BUT IN THIS CASE WE ARE PRESENTED WITH
A CLAIM OF DISCRIMINATION OF AN ENTIRELY DIFFERENT NATURE--A CLAIM THAT
THE REVENUE-PRODUCING MECHANISM DIRECTLY DISCRIMINATES AGAINST THE
INTERESTS OF SOME OF THE INTENDED BENEFICIARIES; AND, IN CONTRAST TO
THE TAXPAYER SUITS, THE INTEREST ADVERSELY AFFECTED IS OF SUBSTANTIAL
CONSTITUTIONAL AND SOCIETAL IMPORTANCE.  HENCE, A DIFFERENT STANDARD OF
EQUAL PROTECTION REVIEW THAN HAS BEEN EMPLOYED IN THE TAXPAYER SUITS IS
APPROPRIATE HERE.  IT IS TRUE THAT AFFIRMANCE OF THE DISTRICT COURT
DECISION WOULD TO SOME EXTENT INTRUDE UPON THE STATE'S TAXING POWER
INSOFAR AS IT WOULD BE NECESSARY FOR THE STATE TO AT LEAST EQUALIZE
TAXABLE DISTRICT WEALTH.  BUT CONTRARY TO THE SUGGESTIONS OF THE
MAJORITY, AFFIRMANCE WOULD NOT IMPOSE A STRAITJACKET UPON THE REVENUE
RAISING POWERS OF THE STATE, AND WOULD CERTAINLY NOT SPELL THE END OF
THE LOCAL PROPERTY TAX.  SEE INFRA, AT 132. 

/76/  THIS DOES NOT MEAN THAT THE COURT HAS DEMANDED PRECISE
EQUALITY IN THE TREATMENT OF THE INDIGENT AND THE PERSON OF MEANS IN
THE CRIMINAL PROCESS.  WE HAVE NEVER SUGGESTED, FOR INSTANCE, THAT THE
EQUAL PROTECTION CLAUSE REQUIRES THE BEST LAWYER MONEY CAN BUY FOR THE
INDIGENT.  WE ARE HARDLY EQUIPPED WITH THE OBJECTIVE STANDARDS WHICH
SUCH A JUDGMENT WOULD REQUIRE.  BUT WE HAVE PURSUED THE GOAL OF
SUBSTANTIAL EQUALITY OF TREATMENT IN THE FACE OF CLEAR DISPARITIES IN
THE NATURE OF THE APPELLATE PROCESS AFFORDED RICH VERSUS POOR.  SEE, E.
G., DRAPER V. WASHINGTON, 372 U.S. 487, 495 - 496 (1963); CF. COPPEDGE
V. UNITED STATES, 369 U.S. 438, 447 (1962). 

/77/  EVEN IF I PUT ASIDE THE COURT'S MISREADING OF GRIFFIN AND
DOUGLAS, THE COURT FAILS TO OFFER ANY REASONED CONSTITUTIONAL BASIS FOR
RESTRICTING CASES INVOLVING WEALTH DISCRIMINATION TO INSTANCES IN WHICH
THERE IS AN ABSOLUTE DEPRIVATION OF THE INTEREST AFFECTED.  AS I HAVE
ALREADY DISCUSSED, SEE SUPRA, AT 88 - 89, THE EQUAL PROTECTION CLAUSE
GUARANTEES EQUALITY OF TREATMENT OF THOSE PERSONS WHO ARE SIMILARLY
SITUATED; IT DOES NOT MERELY BAR SOME FORM OF EXCESSIVE DISCRIMINATION
BETWEEN SUCH PERSONS.  OUTSIDE THE CONTEXT OF WEALTH DISCRIMINATION,
THE COURT'S REAPPORTIONMENT DECISIONS CLEARLY INDICATE THAT RELATIVE
DISCRIMINATION IS WITHIN THE PURVIEW OF THE EQUAL PROTECTION CLAUSE. 
THUS, IN REYNOLDS V. SIMS, 377 U.S. 533, 562 - 563 (1964), THE COURT
RECOGNIZED:  "IT WOULD APPEAR EXTRAORDINARY TO SUGGEST THAT A STATE
COULD BE CONSTITUTIONALLY PERMITTED TO ENACT A LAW PROVIDING THAT
CERTAIN OF THE STATE'S VOTERS COULD VOTE TWO, FIVE, OR 10 TIMES FOR
THEIR LEGISLATIVE REPRESENTATIVES, WHILE VOTERS LIVING ELSEWHERE COULD
VOTE ONLY ONCE.  . . . OF COURSE, THE EFFECT OF STATE LEGISLATIVE
DISTRICTING SCHEMES WHICH GIVE THE SAME NUMBER OF REPRESENTATIVES TO
UNEQUAL NUMBERS OF CONSTITUENTS IS IDENTICAL.  OVERWEIGHTING AND
OVERVALUATION OF THE VOTES OF THOSE LIVING HERE HAS THE CERTAIN EFFECT
OF DILUTION AND UNDERVALUATION OF THE VOTES OF THOSE LIVING THERE.  . .
. THEIR RIGHT TO VOTE IS SIMPLY NOT THE SAME RIGHT TO VOTE AS THAT OF
THOSE LIVING IN A FAVORED PART OF THE STATE.  . . . ONE MUST BE EVER
AWARE THAT THE CONSTITUTION FORBIDS 'SOPHISTICATED AS WELL AS SIMPLE
MINDED MODES OF DISCRIMINATION.'"  SEE ALSO GRAY V. SANDERS, 372 U.S.
368, 380 - 381 (1963).  THE COURT GIVES NO EXPLANATION WHY A CASE
INVOLVING WEALTH DISCRIMINATION SHOULD BE TREATED ANY DIFFERENTLY. 

/78/  BUT CF. BULLOCK V. CARTER, 405 U.S. 134, 144 (1972), WHERE
PROSPECTIVE CANDIDATES' THREATENED EXCLUSION FROM A PRIMARY BALLOT
BECAUSE OF THEIR INABILITY TO PAY A FILING FEE WAS SEEN AS
DISCRIMINATION AGAINST BOTH THE IMPECUNIOUS CANDIDATES AND THE "LESS
AFFLUENT SEGMENT OF THE COMMUNITY" THAT SUPPORTED SUCH CANDIDATES BUT
WAS ALSO TOO POOR AS A GROUP TO CONTRIBUTE ENOUGH FOR THE FILING FEES. 

/79/  BUT CF. M. HARRINGTON, THE OTHER AMERICA 13 - 17 (PENGUIN ED.
1963). 

/80/  SEE E. BANFIELD, THE UNHEAVENLY CITY 63, 75 - 76 (1970); CF.
R. LYND & H. LYND, MIDDLETOWN IN TRANSITION 450 (1937). 

/81/  CF. NEW YORK V. MILN, 11 PET. 102, 142 (1837). 

/82/  THEORETICALLY, AT LEAST, IT MAY PROVIDE A MECHANISM FOR
IMPLEMENTING TEXAS' ASSERTED INTEREST IN LOCAL EDUCATIONAL CONTROL, SEE
INFRA, AT 126. 

/83/  TRUE, A FAMILY MAY MOVE TO ESCAPE A PROPERTY-POOR SCHOOL
DISTRICT, ASSUMING IT HAS THE MEANS TO DO SO.  BUT SUCH A VIEW WOULD
ITSELF RAISE A SERIOUS CONSTITUTIONAL QUESTION CONCERNING A
IMPERMISSIBLE BURDENING OF THE RIGHT TO TRAVEL, OR, MORE PRECISELY, THE
CONCOMITANT RIGHT TO REMAIN WHERE ONE IS.  CF. SHAPIRO V. THOMPSON, 394
U.S. 618, 629 - 631 (1969). 

/84/  INDEED, THE POLITICAL DIFFICULTIES THAT SERIOUSLY
DISADVANTAGED DISTRICTS FACE IN SECURING LEGISLATIVE REDRESS ARE
AUGUMENTED BY THE FACT THAT LITTLE SUPPORT IS LIKELY TO BE SECURED FROM
ONLY MILDLY DISADVANTAGED DISTRICTS.  CF. GRAY V. SANDERS, 372 U.S. 368
(1963).  SEE ALSO N. 2, SUPRA. 

/85/  SEE TEX. CITIES, TOWNS AND VILLAGES CODE, CIV. STAT. ANN. ^^
1011A- - 1011J (1963 AND SUPP. 1972 - 1973).  SEE ALSO, E. G., SKINNER
V. REED, 265 S. W. 2D 850 (TEX. CT. CIV. APP. 1954); CORPUS CHRISTI V.
JONES, 144 S.W. 2D 388 (TEX. CT. CIV. APP. 1940). 

/86/  SERRANO V. PRIEST, 5 CAL. 3D, AT 603, 487 P. 2D, AT 1254.  SEE
ALSO VAN DUSARTZ V. HATFIELD, 334 F. SUPP, AT 875 - 876. 

/87/  CF., E. G., TWO GUYS FROM HARRISON-ALLENTOWN V. MCGINLEY, 366
U.S. 582 (1961); MCGOWAN V. MARYLAND, 366 U.S. 420 (1961); GOESAERT V.
CLEARY, 355 U.S. 464 (1948). 

/88/  TEX. EDUC.  CODE ANN. ^^ 21.101 - 21.117.  CRIMINAL PENALTIES
ARE PROVIDED FOR FAILURE TO TEACH CERTAIN REQUIRED COURSES.  ID., ^^
4.15 - 4.16. 

/89/  ID., ^^ 12.11 - 12.35. 

/90/  ID., ^ 12.62. 

/91/  ID., ^^ 13.031 - 13.046. 

/92/  ID., ^ 21.004. 

/93/  SEE APPENDIX II, INFRA. 

/94/  SEE AFFIDAVIT OF DR. JOSE CARDENAS, SUPERINTENDENT OF SCHOOLS,
EDGEWOOD INDEPENDENT SCHOOL DISTRICT, APP. 234 - 238. 

/95/  SEE APPENDIX IV, INFRA. 

/96/  MY BROTHER WHITE, IN CONCLUDING THAT THE TEXAS FINANCING
SCHEME RUNS AFOUL OF THE EQUAL PROTECTION CLAUSE, LIKEWISE FINDS ON
ANALYSIS THAT THE MEANS CHOSEN BY TEXAS--LOCAL PROPERTY TAXATION
DEPENDENT UPON LOCAL TAXABLE WEALTH--IS COMPLETELY UNSUITED IN ITS
PRESENT FORM TO THE ACHIEVEMENT OF THE ASSERTED GOAL OF PROVIDING LOCAL
FISCAL CONTROL.  ALTHOUGH MY BROTHER WHITE PURPORTS TO REACH THIS
RESULT BY APPLICATION OF THAT LENIENT STANDARD OF MERE RATIONALITY
TRADITIONALLY APPLIED IN THE CONTEXT OF COMMERCIAL INTERESTS, IT SEEMS
TO ME THAT THE CARE WITH WHICH HE SCRUTINIZES THE PRACTICAL
EFFECTIVENESS OF THE PRESENT LOCAL PROPERTY TAX AS A DEVICE FOR
AFFORDING LOCAL FISCAL CONTROL REFLECTS THE APPLICATION OF A MORE
STRINGENT STANDARD OF REVIEW, A STANDARD WHICH AT THE LEAST IS
INFLUENCED BY THE CONSTITUTIONAL SIGNIFICANCE OF THE PROCESS OF PUBLIC
EDUCATION. 

/97/  SEE N. 98, INFRA. 

/98/  CENTRALIZED EDUCATIONAL FINANCING IS, TO BE SURE, ONE
ALTERNATIVE.  ON ANALYSIS, THOUGH, IT IS CLEAR THAT EVEN CENTRALIZED
FINANCING WOULD NOT DEPRIVE LOCAL SCHOOL DISTRICTS OF WHAT HAS BEEN
CONSIDERED TO BE THE ESSENCE OF LOCAL EDUCATIONAL CONTROL.  SEE WRIGHT
V. COUNCIL OF THE CITY OF EMPORIA, 407 U.S. 451, 477 - 478 (BURGER, C.
J., DISSENTING).  CENTRAL FINANCING WOULD LEAVE IN LOCAL HANDS THE
ENTIRE GAMUT OF LOCAL EDUCATIONAL POLICYMAKING--TEACHERS, CURRICULUM,
SCHOOL SITES, THE WHOLE PROCESS OF ALLOCATING RESOURCES AMONG
ALTERNATIVE EDUCATIONAL OBJECTIVES. 

A SECOND POSSIBILITY IS THE MUCH DISCUSSED THEORY OF DISTRICT POWER
EQUALIZATION PUT FORTH BY PROFESSORS COONS, CLUNE, AND SUGARMAN IN
THEIR SEMINAL WORK, PRIVATE WEALTH AND PUBLIC EDUCATION 201 - 242
(1970).  SUCH A SCHEME WOULD TRULY REFLECT A DEDICATION TO LOCAL FISCAL
CONTROL.  UNDER THEIR SYSTEM, EACH SCHOOL DISTRICT WOULD RECEIVE A
FIXED AMOUNT OF REVENUE PER PUPIL FOR ANY PARTICULAR LEVEL OF TAX
EFFORT REGARDLESS OF THE LEVEL OF LOCAL PROPERTY TAX BASE.  APPELLANTS
CRITICIZE THIS SCHEME ON THE RATHER EXTRAORDINARY GROUND THAT IT WOULD
ENCOURAGE POORER DISTRICTS TO OVERTAX THEMSELVES IN ORDER TO OBTAIN
SUBSTANTIAL REVENUES FOR EDUCATION.  BUT UNDER THE PRESENT
DISCRIMINATORY SCHEME, IT IS THE POOR DISTRICTS THAT ARE ALREADY TAXING
THEMSELVES AT THE HIGHEST RATES, YET ARE RECEIVING THE LOWEST RETURNS. 

DISTRICT WEALTH REAPPORTIONMENT IS YET ANOTHER ALTERNATIVE WHICH
WOULD ACCOMPLISH DIRECTLY ESSENTIALLY WHAT DISTRICT POWER EQUALIZATION
WOULD SEEK TO DO ARTIFICIALLY.  APPELLANTS CLAIM THAT THE CALCULATIONS
CONCERNING STATE PROPERTY REQUIRED BY SUCH A SCHEME WOULD BE IMPOSSIBLE
AS A PRACTICAL MATTER.  YET TEXAS IS ALREADY MAKING FAR MORE COMPLEX
ANNUAL CALCULATIONS-INVOLVING NOT ONLY LOCAL PROPERTY VALUES BUT ALSO
LOCAL INCOME AND THEIR ECONOMIC FACTORS--IN CONJUNCTION WITH THE LOCAL
FUND ASSIGNMENT PORTION OF THE MINIMUM FOUNDATION SCHOOL PROGRAM.  SEE
5 GOVERNOR'S COMMITTEE REPORT 43 - 44. 

A FOURTH POSSIBILITY WOULD BE TO REMOVE COMMERCIAL, INDUSTRIAL, AND
MINERAL PROPERTY FROM LOCAL TAX ROLLS, TO TAX THIS PROPERTY ON A
STATEWIDE BASIS, AND TO RETURN THE RESULTING REVENUES TO THE LOCAL
DISTRICTS IN A FASHION THAT WOULD COMPENSATE FOR REMAINING VARIATIONS
IN THE LOCAL TAX BASES. 

NONE OF THESE PARTICULAR ALTERNATIVES ARE NECESSARILY
CONSTITUTIONALLY COMPELLED; RATHER, THEY INDICATE THE BREADTH OF CHOICE
WHICH WOULD REMAIN TO THE STATE IF THE PRESENT INTERDISTRICT
DISPARITIES WERE ELIMINATED. 

/99/  SEE N. 98, SUPRA. 

100/  OF COURSE, NOTHING IN THE COURT'S DECISION TODAY SHOULD
INHIBIT FURTHER REVIEW OF STATE EDUCATIONAL FUNDING SCHEMES UNDER STATE
CONSTITUTIONAL PROVISIONS.  SEE MILLIKEN V. GREEN,--MICH.--, 203 N.W.
2D 457 (1972), REHEARING GRANTED, JAN. 1973; ROBINSON V. CAHILL, 118
N.J. SUPER.  223, 287 A. 2D 187, 119 N.J. SUPER.  40, 289 A. 2D 569
(1972); CF. SERRANO V. PRIEST, 5 CAL. 3D 584, 487 P. 2D 1241 (1971). 

CHARLES ALAN WRIGHT ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEFS WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA
WHITE, FIRST ASSISTANT ATTORNEY GENERAL, ALFRED WALKER, EXECUTIVE
ASSISTANT ATTORNEY GENERAL, J. C. DAVIS AND PAT BAILEY, ASSISTANT
ATTORNEYS GENERAL, AND SAMUEL D. MCDANIEL. 

ARTHUR GOCHMAN ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS MARIO OBLEDO.  /1/ 

/1/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY GEORGE F.
KUGLER, JR., ATTORNEY GENERAL, PRO SE, AND STEPHEN SKILLMAN, ASSISTANT
ATTORNEY GENERAL, FOR THE ATTORNEY GENERAL OF NEW JERSEY; BY GEORGE W.
LIEBMANN AND SHALE D. STILLER FOR MONTGOMERY COUNTY, MARYLAND, JOINED
BY FRANCIS B. BURCH, ATTORNEY GENERAL OF MARYLAND, HENRY R. LORD,
DEPUTY ATTORNEY GENERAL, E. STEPHEN DERBY, ASSISTANT ATTORNEY GENERAL;
WILLIAM J. BAXLEY, ATTORNEY GENERAL OF ALABAMA; GARY K. NELSON,
ATTORNEY GENERAL OF ARIZONA, JAMES G. BOND, ASSISTANT ATTORNEY GENERAL;
EVELLE J. YOUNGER, ATTORNEY GENERAL OF CALIFORNIA, ELIZABETH PALMER,
ASSISTANT ATTORNEY GENERAL, EDWARD M. BELASCO, DEPUTY ATTORNEY GENERAL;
DUKE W. DUNBAR, ATTORNEY GENERAL OF COLORADO; ROBERT K. KILLIAN,
ATTORNEY GENERAL OF CONNECTICUT, F. MICHAEL AHERN, ASSISTANT ATTORNEY
GENERAL; W. ANTHONY PARK, ATTORNEY GENERAL OF IDAHO, JAMES R. HARGIS,
DEPUTY ATTORNEY GENERAL; THEODORE L. SENDAK, ATTORNEY GENERAL OF
INDIANA; CHARLES M. WELLS, HARRY T. ICE, RICHARD C. TURNER, ATTORNEY
GENERAL OF IOWA, GEORGE W. MURRAY, ASSISTANT ATTORNEY GENERAL; VERN
MILLER, ATTORNEY GENERAL OF KANSAS, MATTHEW J. DOWD AND JOHN C.
JOHNSON, ASSISTANT ATTORNEYS GENERAL; ED W. HANCOCK, ATTORNEY GENERAL
OF KENTUCKY, CARL T. MILLER, ASSISTANT ATTORNEY GENERAL; WILLIAM J.
GUSTE, JR., ATTORNEY GENERAL OF LOUISIANA; JAMES S. ERWIN, ATTORNEY
GENERAL OF MAINE, GEORGE WEST, ASSISTANT ATTORNEY GENERAL; ROBERT H.
QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, LAWRENCE T. BENCH, ASSISTANT
ATTORNEY GENERAL, CHARLES F. CLIPPERT, WILLIAM M. SAXTON, ROBERT B.
WEBSTER; A. F. SUMMER, ATTORNEY GENERAL OF MISSISSIPPI, MARTIN R.
MCLENDON, ASSISTANT ATTORNEY GENERAL; JOHN DANFORTH, ATTORNEY GENERAL
OF MISSOURI, D. BROOK BARTLETT, ASSISTANT ATTORNEY GENERAL; CLARENCE A.
H. MEYER, ATTORNEY GENERAL OF NEBRASKA, HAROLD MOSHER, ASSISTANT
ATTORNEY GENERAL; WARREN B. RUDMAN, ATTORNEY GENERAL OF NEW HAMPSHIRE;
LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK; ROBERT B. MORGAN,
ATTORNEY GENERAL OF NORTH CAROLINA, BURLEY B. MITCHELL, JR., ASSISTANT
ATTORNEY GENERAL; HELGI JOHANNESON, ATTORNEY GENERAL OF NORTH DAKOTA,
GERALD VANDEWALLE, ASSISTANT ATTORNEY GENERAL; LEE JOHNSON, ATTORNEY
GENERAL OF OREGON; DANIEL R. MCLEOD, ATTORNEY GENERAL OF SOUTH
CAROLINA, G. LEWIS ARGOE, JR., ASSISTANT ATTORNEY GENERAL; GORDON
MYDLAND, ATTORNEY GENERAL OF SOUTH DAKOTA, C. J. KELLY, ASSISTANT
ATTORNEY GENERAL; DAVID M. PACK, ATTORNEY GENERAL OF TENNESSEE, MILTON
P. RICE, DEPUTY ATTORNEY GENERAL; VERNON B. ROMNEY, ATTORNEY GENERAL OF
UTAH, ROBERT B. HANSEN, DEPUTY ATTORNEY GENERAL; JAMES M. JEFFORDS,
ATTORNEY GENERAL OF VERMONT; CHAUNCEY H. BROWNING, JR., ATTORNEY
GENERAL OF WEST VIRGINIA, VICTOR A. BARONE, ASSISTANT ATTORNEY GENERAL;
ROBERT W. WARREN, ATTORNEY GENERAL OF WISCONSIN, AND BETTY R. BROWN,
ASSISTANT ATTORNEY GENERAL; AND BY JOHN D. MAHARG AND JAMES W. BRIGGS
FOR RICHARD M. CLOWES, SUPERINTENDENT OF SCHOOLS OF THE COUNTY OF LOS
ANGELES, ET. AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY DAVID
BONDERMAN AND PETER VAN N. LOCKWOOD FOR WENDELL ANDERSON, GOVERNOR OF
MINNESOTA, ET AL.; BY ROBERT R. COFFMAN FOR WILSON RILES,
SUPERINTENDENT OF PUBLIC INSTRUCTION OF CALIFORNIA, ET AL.; BY RODERICK
M. HILLS FOR HOUSTON I. FLOURNOY, CONTROLLER OF CALIFORNIA; BY RAMSEY
CLARK, JOHN SILARD, DAVID C. LONG, GEORGE L. RUSSELL, JR., HAROLD J.
RUVOLDT, JR., J. ALBERT WOLL, THOMAS E. HARRIS, JOHN LIGTENBERG, A. L.
ZWERDLING, AND STEPHEN I. SCHLOSSBERG FOR THE MAYOR AND CITY COUNCIL OF
BALTIMORE ET AL.; BY GEORGE H. SPENCER FOR SAN ANTONIO INDEPENDENT
SCHOOL DISTRICT; BY NORMAN DORSEN, MARVIN M. KARPATKIN, MELVIN L. WULF,
PAUL S. BERGER, JOSEPH B. ROBINSON, ARNOLD FORSTER, AND STANLEY P.
HEBERT FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL.; BY JACK
GREENBERG, JAMES M. NABRIT III, NORMAN J. CHACHKIN, AND ABRAHAM SOFAER
FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.; BY STEPHEN J.
POLLAK, RALPH J. MOORE, JR., RICHARD M. SHARP, AND DAVID RUBIN FOR THE
NATIONAL EDUCATION ASSN. ET AL.; AND BY JOHN E. COONS FOR JOHN SERRANO,
JR., ET AL. 

BRIEFS OF AMICI CURIAE WERE FILED BY LAWRENCE E. WALSH, VICTOR W.
BOULDIN, RICHARD B. SMITH, AND GUY M. STRUVE FOR THE REPUBLIC NATIONAL
BANK OF DALLAS ET AL., AND BY JOSEPH R. CORTESE, JOSEPH GUANDOLO, BRYCE
HUGUENIN, MANLY W. MUMFORD, JOSEPH H. JOHNSON, JR., JOSEPH RUDD, FRED
H. ROSENFELD, HERSCHEL H. FRIDAY, GEORGE HERRINGTON, HARRY T. ICE,
CORNELIUS W. GRAFTON, FRED G. BENTON, JR., EUGENE E. HUPPENBAUER, JR.,
HAROLD B. JUDELL, ROBERT B. FIZZELL, JOHN B. DAWSON, GEORGE J. FAGIN,
HOWARD A. RANKIN, HUGER SINKLER, ROBERT W. SPENCE, HOBBY H. MCCALL,
JAMES R. ELLIS, AND WILLIAM J. KIERNAN, JR., BOND COUNSEL. 
..END :
















TEXAS V. LOUISIANA, 410 U.S. 702 


       TEXAS V. LOUISIANA

        ON BILL OF COMPLAINT

        NO. 36, ORIG.  ARGUED DECEMBER 11, 1972-- DECIDED MARCH 20,

           1973 


THE SPECIAL MASTER'S REPORT, TO THE EXTENT THAT IT RECOMMENDS THAT
THE RELEVANT BOUNDARY BETWEEN TEXAS AND LOUISIANA BE THE GEOGRAPHIC
MIDDLE OF SABINE PASS, LAKE, AND RIVER (COLLECTIVELY SABINE) AND NOT
THE WEST BANK OR THE MIDDLE OF THE MAIN CHANNEL AND THAT ALL ISLANDS IN
THE EAST HALF OF THE SABINE WHEN LOUISIANA WAS ADMITTED AS A STATE IN
1812, OR THEREAFTER FORMED, SHOULD BE AWARDED TO LOUISIANA, IS ADOPTED;
DECISION ON THE REPORT WITH RESPECT TO ISLANDS IN THE WEST HALF OF THE
SABINE EXISTING IN 1812 OR THEREAFTER FORMED, IS DEFERRED PENDING
FURTHER PROCEEDINGS, IN WHICH THE UNITED STATES IS INVITED TO
PARTICIPATE, AND WHICH THE SPECIAL MASTER IS TO CONDUCT.  PP. 704-714. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, AND REHNQUIST,
JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 714. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

TEXAS BROUGHT THIS ORIGINAL ACTION AGAINST LOUISIANA TO ESTABLISH
ITS RIGHTS TO THE JURISDICTION AND OWNERSHIP OF THE WESTERN HALF OF
SABINE PASS, SABINE LAKE, AND SABINE RIVER (COLLECTIVELY SABINE) FROM
THE MOUTH OF THE SABINE IN THE GULF OF MEXICO TO THE THIRTY-SECOND
DEGREE OF NORTH LATITUDE, AND TO OBTAIN A DECREE CONFIRMING THE
BOUNDARY OF THE TWO STATES AS THE GEOGRAPHIC MIDDLE OF THE SABINE. 
AFTER THE MOTION TO FILE WAS GRANTED, 397 U.S. 931(1970), LOUISIANA
FILED MOTIONS, ANSWER, AND COUNTERCLAIM ASSERTING THAT ITS BOUNDARY WAS
ON THE WEST BANK OF THE SABINE; AND THE CASE WAS REFERRED TO A SPECIAL
MASTER, 398 U.S. 934(1970). 

THE REPORT OF THE SPECIAL MASTER AND THE PARTIES' EXCEPTIONS ARE NOW
BEFORE US.  THE SPECIAL MASTER'S RECOMMENDATIONS ARE THAT THE
GEOGRAPHIC MIDDLE, NOT THE WEST BANK OR THE MIDDLE OF THE MAIN CHANNEL,
IS THE BOUNDARY BETWEEN THE TWO STATES; THAT ALL ISLANDS IN THE SABINE
WHEN LOUISIANA WAS ADMITTED AS A STATE IN 1812 SHOULD BE AWARDED TO
LOUISIANA SUBJECT TO PRESCRIPTIVE CLAIMS, IF ANY, BY TEXAS TO SUCH
ISLANDS; THAT ALL ISLANDS FORMED IN THE EAST HALF OF THE SABINE AFTER
1812 BELONG TO LOUISIANA, AND THOSE IN THE WEST HALF TO TEXAS.  THE
SPECIAL MASTER CONTEMPLATES FURTHER PROCEEDINGS TO DETERMINE WHAT
ISLANDS WERE IN THE SABINE IN 1812 AND WHAT PRESCRIPTIVE CLAIMS TEXAS
MAY HAVE TO SUCH ISLANDS.  LOUISIANA'S EXCEPTIONS MAINTAIN THAT ITS
BOUNDARY IS NOT THE GEOGRAPHIC MIDDLE BUT THE WEST BANK OF THE SABINE,
OR ALTERNATIVELY, THE MAIN CHANNEL OF THE STREAM AS IT EXISTED IN 1812
WEST OF THE MOST WESTERLY ISLANDS.  LOUISIANA ALSO CLAIMS ALL ISLANDS
IN THE SABINE, WHETHER EXISTING IN 1812 OR THEREAFTER FORMED.  THE
EXCEPTION FILED BY TEXAS ASSERTS ITS RIGHT TO ALL ISLANDS IN THE WEST
HALF OF THE RIVER BUT PROPOSES THAT THE QUESTION OF OWNERSHIP BE
DEFERRED PENDING THE OUTCOME OF THE PROPOSED ADDITIONAL PROCEEDINGS
WITH RESPECT TO ISLANDS THAT MAY HAVE EXISTED AS OF 1812. 

ORAL ARGUMENT WAS HEARD ON THE EXCEPTIONS.  WE NOW APPROVE AND ADOPT
THE REPORT OF THE SPECIAL MASTER EXCEPT HIS CONCLUSIONS WITH RESPECT TO
OWNERSHIP OF ISLANDS IN THE WESTERN HALF OF THE SABINE. 

        I 

IN AN ENABLING ACT APPROVED FEBRUARY 20, 1811, 2 STAT. 641, CONGRESS
AUTHORIZED THE INHABITANTS OF A PORTION OF THE LOUISIANA TERRITORY
CEDED UNDER THE TREATY BETWEEN THE UNITED STATES AND FRANCE ON APRIL
30, 1803, 8 STAT. 200, TO SEEK STATEHOOD.  THE SABINE BOUNDARY FOR WHAT
WAS TO BECOME THE STATE OF LOUISIANA WAS DESCRIBED AS "BEGINNING AT THE
MOUTH OF THE RIVER SABINE, THENCE BY A LINE TO BE DRAWN ALONG THE
MIDDLE OF THE SAID RIVER, INCLUDING ALL ISLANDS TO THE THIRTY-SECOND
DEGREE OF LATITUDE.  . . . " 2 STAT. 641.  THE 1812 LOUISIANA
CONSTITUTION DESCRIBED THE STATE'S WESTERN BOUNDARY IN SUBSTANTIALLY
THE SAME MANNER, /1/  AND THE ACT OF ADMISSION OF APRIL 8, 1812, 2
STAT. 701, EMPLOYED LANGUAGE IDENTICAL TO THAT OF THE ENABLING ACT. 

PRECEDING THIS PERIOD, AND FOR SOME TIME THEREAFTER, THE WESTERN
BOUNDARY OF THE UNITED STATES AND SPAIN FROM 1803 UNTIL 1819 CULMINATED
IN THE TREATY OF AMITY, SETTLEMENT, AND LIMITS, 1819, 8 STAT. 252. 
UNDER THIS TREATY, THE BOUNDARY "BETWEEN THE TWO COUNTRIES" WAS IN
RELEVANT PART ESTABLISHED ALONG THE WEST BANK OF THE SABINE, 8 STAT.
254; THE UNITED STATES RELINQUISHED ALL OF TEXAS WEST OF THAT BOUNDARY
IN EXCHANGE FOR FLORIDA AND THE SPANISH CLAIM TO THE OREGON TERRITORY;
AND IT WAS PROVIDED THAT ALL ISLANDS IN THE SABINE BELONGED TO THE
UNITED STATES. 

THE UNITED STATES RENEWED ITS EFFORTS TO ACQUIRE TEXAS, AND WHEN
MEXICO DECLARED ITS INDEPENDENCE FROM SPAIN IN 1821, THE UNITED STATES
BEGAN NEGOTIATING ANEW FOR THE PURCHASE OF TEXAS.  IN THE TREATY OF
LIMITS, 1828, 8 STAT. 372, THE UNITED STATES AND MEXICO RECOGNIZED THE
BOUNDARY "BETWEEN THE TWO COUNTRIES," ID., AT 374, ON THE WEST BANK OF
THE SABINE AS ESTABLISHED IN THE 1819 TREATY WITH SPAIN.  /2/  TEXAS
DECLARED ITS INDEPENDENCE FROM MEXICO IN 1836, 1 LAWS, REPUBLIC OF
TEXAS, 3-7, IN GAMMEL'S LAWS OF TEXAS 1822-1897, WAS RECOGNIZED AS AN
INDEPENDENT NATION BY THE UNITED STATES IN 1837, CONG. GLOBE, 24TH
CONG., 2D SESS., 83, 270, AND IN 1838 THE SABINE BOUNDARY AGREED UPON
WITH SPAIN IN 1819, AND WITH MEXICO IN 1828, WAS ADOPTED BY THE UNITED
STATES AND TEXAS, 8 STAT. 511.  /3/  THE SABINE BOUNDARY REMAINED
UNCHANGED WHEN TEXAS WAS ADMITTED AS A STATE IN 1845, 9 STAT. 108. 

IN 1848 THE LEGISLATURES OF TEXAS AND LOUISIANA PASSED COMPETING
RESOLUTIONS, EACH REQUESTING CONSENT OF CONGRESS TO ESTABLISH ITS
JURISDICTION OVER THE SABINE BETWEEN THE MIDDLE AND THE WESTERN BANK. 
/4/  CONGRESS PASSED AN ACT IN 1848 GIVING ITS CONSENT TO TEXAS TO
EXTEND ITS EASTERN BOUNDARY FROM THE WEST BANK OF THE SABINE TO THE
MIDDLE, 9 STAT. 245, THE ACT STATING: 

"(THIS CONGRESS CONSENTS THAT THE LEGISLATURE OF THE STATE OF TEXAS
MAY EXTEND HER EASTERN BOUNDARY SO AS TO INCLUDE WITHIN HER LIMITS ONE
HALF OF SABINE PASS, ONE HALF OF SABINE LAKE, ALSO ONE HALF OF SABINE
RIVER, FROM ITS MOUTH AS FAR NORTH AS THE THIRTY-SECOND DEGREE OF NORTH
LATITUDE." 

        II 

WE AGREE WITH THE SPECIAL MASTER THAT THE WESTERN BOUNDARY OF
LOUISIANA IS THE GEOGRAPHICAL MIDDLE OF THE SABINE RIVER, NOT ITS
WESTERN BANK OR THE MIDDLE OF ITS MAIN CHANNEL.  CONGRESS HAD THE
AUTHORITY TO ADMIT LOUISIANA TO THE UNION AND TO ESTABLISH THE
BOUNDARIES OF THAT STATE.  U.S. CONST., ART. IV, SEC. 3; UNITED STATES
V. LOUISIANA, 363 U.S. 1, 30, 60-62, 67(1960); WASHINGTON V. OREGON,
211 U.S. 127, 134-135(1908).  HENCE, OUR TASK IS TO ASCERTAIN
CONGRESSIONAL WILL WHEN IT ADMITTED LOUISIANA INTO THE UNION ON APRIL
8, 1812, AND ESTABLISHED HER RELEVANT WESTERN BOUNDARY AS "BEGINNING AT
THE MOUTH OF THE RIVER SABINE; THENCE, BY A LINE TO BE DRAWN ALONG THE
MIDDLE OF SAID RIVER, INCLUDING ALL ISLANDS TO THE THIRTY-SECOND DEGREE
OF LATITUDE.  . . . " 2 STAT. 702.  THE STATUTE IN THIS RESPECT WAS
IDENTICAL WITH THE ENABLING ACT OF THE PRIOR YEAR AND DIFFERED HARDLY
AT ALL FROM THE PREAMBLE TO THE LOUISIANA LEGISLATURE RESOLVED IN 1848
THAT THE STATE'S JURISDICTION SHOULD BE "EXTENDED" TO THE WESTERN HALF
OF THE RIVER, RECITING THAT NEITHER IT NOR ANY OTHER STATE HAD
AUTHORITY OVER THAT PORTION OF THE SABINE.  SEE N. 4, SUPRA.  TEXAS
MADE A SIMILAR REQUEST, SEE N. 4, SUPRA CONGRESS ACCEDING TO THE LATTER
AND CONSENTING THAT TEXAS COULD "EXTEND HER EASTERN BOUNDARY SO AS TO
INCLUDE WITHIN HER LIMITS ONE HALF OF SABINE PASS, ONE HALF OF THE
SABINE LAKE, ALSO ONE HALF OF SABINE RIVER, FROM ITS MOUTH . . . (TO)
THE THIRTY-SECOND DEGREE OF NORTH LATITUDE."  9 STAT. 245.  ON THE
FLOOR OF THE SENATE, MR. BUTLER, SPEAKING FOR THE JUDICIARY COMMITTEE,
STATED THAT THE BOUNDARIES OF THE UNITED STATES EXTENDED TO THE WESTERN
SHORE OF THE SABINE, BUT THAT THE BOUNDARY OF THE STATE OF LOUISIANA
EXTENDED ONLY TO THE MIDDLE, THE RESULT BEING THAT "THE HALF OF THE
RIVER AND LAKE TO THE WESTERN SHORE, BELONGED TO THE UNITED STATES, AND
WAS NOT INCLUDED IN THE STATE OF LOUISIANA.  . . . "  CONG. GLOBE, 30TH
CONG., 1ST SESS., 882.  HENCE THE BILL, WHICH GAVE "THE HALF OF THE
RIVER BEYOND THE BOUNDARY OF THE STATE OF LOUISIANA TO THE STATE OF
TEXAS.  . . . " IBID.  THE BILL PASSED, BOTH SENATORS FROM LOUISIANA
EXPRESSING "THEIR ACQUIESCENCE IN THE ARRANGEMENT."  IBID.  /5/ 

THERE IS NOT A WHISPER IN THESE STATUTES AND INSTRUMENTS THAT THE
WESTERN BOUNDARY OF LOUISIANA WAS ON THE WEST BANK OF THE SABINE. 
CLEARLY, THE BOUNDARY WAS ALONG THE "MIDDLE" OF THE SABINE, NOT ON THE
WEST BANK.  LOUISIANA ARGUES, WITHOUT SUBSTANCE WE THINK, THAT THE
BOUNDARY WAS EXTENDED TO THE WEST BANK BY THE TREATIES OF 1819 AND 1828
WITH SPAIN AND MEXICO RESPECTIVELY, WHEN THE UNITED STATES ESTABLISHED
AND CONFIRMED ITS OWN WESTERN BOUNDARY ON THE WEST BANK OF THE SABINE. 
AS THE SPECIAL MASTER CORRECTLY NOTED, HOWEVER, THE UNITED STATES WAS
ACTING IN ITS SOVEREIGN CAPACITY THROUGHOUT THESE EVENTS, AND THERE IS
NO INDICATION THAT THE UNITED STATES WAS IN ANY WAY REPRESENTING
LOUISIANA OR INTENDING TO RELOCATE THE STATE'S WESTERN BORDER.  NOR WAS
THERE REASON TO DO SO. ON THE CONTRARY, ADMISSION OF STATES BEYOND THE
SABINE WAS SOME DAY CONTEMPLATED, AND IT WAS MORE CONSISTENT WITH THE
POLICY OF THE UNITED STATES TO GRANT ONLY THE EAST HALF OF THE RIVER TO
LOUISIANA AND RESERVE THE WEST HALF FOR A FUTURE STATE OF STATES.  SEE
UNITED STATES V. HOLT STATE BANK, 270 U.S. 49, 55(1926); SHIVELY V.
BOWLBY, 152 U.S. 1, 26-28, 57-58(1894). 

THE SPECIAL MASTER WAS ALSO CORRECT IN RULING THAT THE UNITED STATES
INTENDED THE GEOGRAPHIC MIDDLE OF THE RIVER, NOT OF THE MAIN CHANNEL,
OR THALWEG, TO BE THE WESTERN BOUNDARY OF THE STATE.  THE ARGUMENT THAT
THE MIDDLE OF THE MAIN CHANNEL WAS INTENDED RESTS ON THE LINE OF CASES
IN THIS COURT BEGINNING WITH IOWA V. ILLINOIS, 147 U.S. 1(1893), WHICH
HOLD THAT IN NORMAL CIRCUMSTANCES IT SHOULD BE ASSUMED CONGRESS INTENDS
THE WORD "MIDDLE" TO MEAN "MIDDLE OF THE MAIN CHANNEL" IN ORDER THAT
EACH STATE WOULD HAVE EQUAL ACCESS TO THE MAIN NAVIGABLE CHANNEL.  /6/
THE DOCTRINE WAS BORROWED FROM INTERNATIONAL LAW AND HAS OFTEN BEEN
ADHERED TO IN THIS COURT, ALTHOUGH IT IS PLAIN THAT WITHIN THE UNITED
STATES TWO STATES BORDERING ON A NAVIGABLE RIVER WOULD HAVE EQUAL
ACCESS TO IT FOR THE PURPOSES OF NAVIGATION WHETHER THE COMMON STATE
BOUNDARY WAS IN THE GEOGRAPHIC MIDDLE OR ALONG THE THALWEG.  ID., AT 7
8, 10; NEW JERSEY V. DELAWARE, 291 U.S. 361, 380-385(1934). 

IN IOWA V. ILLINOIS, HOWEVER, THE COURT RECOGNIZED THAT THE ISSUE
WAS THE INTENT OF CONGRESS, 147 U.S.,AT 11, AND THAT IT WAS MERELY
ANNOUNCING A RULE OF CONSTRUCTION WITH RESPECT TO STATUTES AND OTHER
BOUNDARY INSTRUMENTS.  THUS, IT WAS ACKNOWLEDGED THAT THE RULE MIGHT BE
"CHANGED BY STATUTE OR USAGE OF SO GREAT A LENGTH OF TIME AS TO HAVE
ACQUIRED THE FORCE OF LAW."  ID., AT 10. 

WHEN CONGRESS SUFFICIENTLY INDICATES THAT IT INTENDS A DIFFERENT
BOUNDARY IN A NAVIGABLE RIVER, THE THALWEG RULE WILL NOT APPLY.  /7/
IN WASHINGTON V. OREGON, 211 U.S. 127(1908), THE USUAL RULE OF THE
THALWEG WAS RECOGNIZED, BUT THE COURT SAID THAT "THERE IS NO FIXED RULE
MAKING THAT THE BOUNDARY BETWEEN STATES BORDERING ON A RIVER."  ID., AT
134.  THE ACT ADMITTING OREGON WAS CONSTRUED BY THE COURT AS PLACING
THE NORTHERN BOUNDARY OF THE STATE IN THE NORTHERN CHANNEL OF THE
COLUMBIA RIVER AND AS INTENDING IT TO REMAIN THERE EVEN THOUGH THAT
CHANNEL CEASED TO BE THE MAIN NAVIGABLE CHANNEL IN THE COLUMBIA. 

IT WAS THEREFORE IMPERATIVE FOR THE SPECIAL MASTER TO LOOK TO
CONGRESSIONAL INTENT; AND IF IT WAS SUFFICIENTLY CLEAR THAT CONGRESS
INTENDED THE LOUISIANA BOUNDARY TO BE THE GEOGRAPHIC MIDDLE OF THE
SABINE RATHER THAN THE THALWEG, IT WAS HIS DUTY TO ESTABLISH THE BORDER
ALONG THE FORMER LINE.  HIS CONCLUSION WAS SURELY CONSISTENT WITH THE
CONTROLLING INSTRUMENTS-- "ALONG THE MIDDLE OF THE . . . RIVER."  IT IS
ALSO APPARENT THAT THE PARTIES TO THE ACT OF ADMISSION, THE UNITED
STATES AND LOUISIANA, BOTH EVIDENCED THEIR UNDERSTANDING OF THE 1811
ENABLING ACT, THE 1812 CONSTITUTION OF LOUISIANA, AND THE 1812 ACT OF
ADMISSION, WHEN THE LEGISLATURE OF LOUISIANA AND THE CONGRESS OF THE
UNITED STATES EXPRESSLY RECITED IN 1848 THAT THE WESTERN BOUNDARY OF
LOUISIANA INCLUDED ONLY THE EAST HALF OF THE SABINE, NOT THE WEST
HALF.  WHATEVER MAY BE THE NORMAL SIGNIFICANCE OF A LATER CONGRESSIONAL
INDICATION OF THE MEANING OF AN EARLIER STATUTE, SEE, E.G., GLIDDEN CO.
V. ZDANOK, 370 U.S. 530, 541(1962); GREAT NORTHERN R. CO. V. UNITED
STATES, 315 U.S. 262, 273, 277(1942); BREWSTER V. GAGE, 280 U.S. 327,
337(1930); TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286, 309(1911),
HERE THE QUESTION CONCERNS THE 1812 BOUNDARY BETWEEN THE UNITED STATES
AND LOUISIANA, AND IN LIGHT OF ART. IV, SEC. 3, CL. 2, OF THE
CONSTITUTION EMPOWERING CONGRESS "TO DISPOSE OF AND MAKE ALL NEEDFUL
RULES AND REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY
BELONGING TO THE UNITED STATES," WE THINK THE ACT OF 1848 AND THE
EVENTS CONNECTED WITH ITS PASSAGE HAD SPECIAL SIGNIFICANCE AS A
CONSTRUCTION BY THE UNITED STATES AND LOUISIANA OF THE EARLIER ACT
ADMITTING LOUISIANA TO THE UNION.  CF. WASHINGTON V. OREGON, 211
U.S.,AT 135.  AT LEAST, THE INDICATIONS ARE CLEAR ENOUGH TO US THAT WE
SHALL NOT APPLY THE RULE OF THE THALWEG IN THIS CASE. 

THE SPECIAL MASTER ALSO CONCLUDED THAT EVEN IF HE WAS IN ERROR IN
REJECTING LOUISIANA'S CLAIM WITH RESPECT TO THE ORIGINAL LOCATION OF
HER WESTERN BOUNDARY, TEXAS MUST STILL PREVAIL BY REASON OF
PRESCRIPTION AND ACQUIESCENCE.  BECAUSE WE ARE SATISFIED WITH OUR
CONCLUSION, ALREADY REACHED, WITH RESPECT TO THE BOUNDARY LOCATION, WE
NEED NOT PASS UPON THIS ASPECT OF THE SPECIAL MASTER'S REPORT, ALTHOUGH
WE NOTE THAT THE FACTS RELIED UPON BY HIM ARE CONSISTENT WITH AND
SUPPORT THE OTHER GROUND FOR HIS CONCLUSION AS TO LOUISIANA'S SABINE
BOUNDARY. 

        III 

WITH RESPECT TO ISLANDS IN THE SABINE IT IS CONCEDED THAT LOUISIANA
OWNS ALL ISLANDS IN THE EASTERN HALF OF THE RIVER, WHETHER EXISTING IN
1812 OR THEREAFTER FORMED.  AS TO ISLANDS IN THE WEST HALF, THE SPECIAL
MASTER CONCLUDED THAT BY VIRTUE OF THE 1812 ACT OF ADMISSION LOUISIANA
OWNS ALL ISLANDS THAT THEN EXISTED IN THAT PORTION OF THE RIVER, BUT
REJECTED HER CLAIMS TO ISLANDS THEREAFTER FORMED IN THE WESTERN HALF. 
ALL LATER FORMED ISLANDS IN THAT HALF OF THE RIVER, HE CONCLUDED,
BELONGED TO THE STATE OF TEXAS.     WE SHALL WITHHOLD JUDGMENT WITH
RESPECT TO THE OWNERSHIP OF ISLANDS IN THE WESTERN HALF OF THE SABINE
RIVER.  FURTHER PROCEEDINGS WITH RESPECT TO THESE ISLANDS ARE
CONTEMPLATED IN ANY EVENT, AND IT IS OUR VIEW THAT THE UNITED STATES
SHOULD BE REQUESTED TO PRESENT ANY CLAIMS IT MAY HAVE TO ANY OF THE
ISLANDS IN THE WESTERN HALF OF THE SABINE SOUTH OF 32 DEGREES NORTH
LATITUDE AND, IF IT SO DESIRES, TO PRESENT EVIDENCE AND ARGUMENT WITH
RESPECT TO THE OWNERSHIP OF SUCH ISLANDS.  THE SPECIAL MASTER SHOULD
THEN DETERMINE WHETHER HIS REPORT IN THIS RESPECT SHOULD BE MODIFIED
AND COMPLETE THE PROCEEDINGS WITH RESPECT TO THE OWNERSHIP OF THE
SABINE ISLANDS.  OUR REASONS FOR SO DIRECTING WILL BE BRIEFLY STATED. 

IT IS THE UNQUESTIONED RULE THAT STATES ENTERING THE UNION ACQUIRE
TITLE TO THE LANDS UNDER NAVIGABLE STREAMS AND OTHER NAVIGABLE WATERS
WITHIN THEIR BORDERS.  SCOTT V. LATTIG, 227 U.S. 229, 242-243(1913);
COUNTY OF ST. CLAIR V. LOVINGSTON, 23 WALL.  46, 68(1874); POLLARD'S
LESSEE V. HOGAN, 3 HOW.  212, 228-230(1845).  BUT THE RULE DOES NOT
REACH ISLANDS OR FAST LANDS LOCATED WITHIN SUCH WATERS.  TITLE TO
ISLANDS REMAINS IN THE UNITED STATES, UNLESS EXPRESSLY GRANTED ALONG
WITH THE STREAM BED OR OTHERWISE.  THIS WAS THE EXPRESS HOLDING OF
SCOTT V. LATTIG, SUPRA. 

IN THAT CASE, A DISPUTE AROSE OVER THE OWNERSHIP OF AN ISLAND
LOCATED EAST OF THE THALWEG OF THE SNAKE RIVER, WHICH WAS THE WESTERN
BOUNDARY OF THE STATE OF IDAHO.  IT APPEARED THAT AFTER IDAHO CAME INTO
THE UNION, AND THEREBY ACQUIRED TITLE TO THE RIVER BED ON ITS SIDE OF
THE THALWEG, THE UNITED STATES PATENTED RIPARIAN LANDS OPPOSITE THE
ISLAND, AND THE PATENTEES CLAIMED THE ISLAND UNDER THE LAWS OF IDAHO AS
AGAINST A SETTLER SEEKING TO HOMESTEAD THE PROPERTY UNDER THE LAWS OF
THE UNITED STATES.  THE HOMESTEADER PREVAILED IN THIS COURT BECAUSE
TITLE TO THE ISLAND REMAINED IN THE UNITED STATES: 

     "BUT THE ISLAND, WHICH WE HAVE SEEN WAS IN EXISTENCE WHEN
IDAHO

  BECAME A STATE, WAS NOT PART OF THE BED OF THE STREAM OR LAND

  UNDER THE WATER, AND THEREFORE ITS OWNERSHIP DID NOT PASS TO THE

  STATE OR COME WITHIN THE DISPOSING INFLUENCE OF ITS LAWS.  ON THE

  CONTRARY, ALTHOUGH SURROUNDED BY THE WATERS OF THE RIVER AND

  WIDELY SEPARATED FROM THE SHORE, IT WAS FAST DRY LAND, AND

  THEREFORE REMAINED THE PROPERTY OF THE UNITED STATES AND SUBJECT

  TO DISPOSAL UNDER ITS LAWS, AS DID THE ISLAND WHICH WAS IN

  CONTROVERSY IN MISSION ROCK CO. V. UNITED STATES, 109

  FED.REP.  763, 769-770, AND UNITED STATES V. MISSION ROCK CO.,
189

  U.S. 391."  227 U.S.,AT 244. 

IN THE CASE BEFORE US, IT IS PROBABLY CORRECT THAT ONCE THE EASTERN
BOUNDARY OF TEXAS WAS EXTENDED TO THE MIDDLE OF THE RIVER IN 1848 THAT
STATE BECAME ENTITLED TO ANY ISLANDS IN THE WEST HALF WHICH FORMED
AFTER THE DATE OF THAT EXTENSION.  BUT UNLESS THE 1848 ACT CONVEYED TO
TEXAS THE ISLANDS LOCATED IN THE WESTERN HALF OF THE RIVER AT THAT
TIME, TITLE TO THOSE ISLANDS REMAINED IN THE UNITED STATES, IF THE
UNITED STATES HAD NOT PREVIOUSLY CONVEYED ALL OR PART OF THEM TO
LOUISIANA.  THE 1848 ACT, HOWEVER, DOES NOT MENTION ISLANDS IN THE
SABINE, AND IT WOULD THEREFORE APPEAR, IF LATTIG IS TO BE FOLLOWED,
THAT THE UNITED STATES HAS AN INTEREST IN ANY PROCEEDINGS TO DETERMINE
THE OWNERSHIP OF ISLANDS IN THE WEST HALF OF THE SABINE AND SHOULD BE A
PARTY TO, OR AT LEAST HAVE THE OPPORTUNITY TO PARTICIPATE IN, SUCH
PROCEEDINGS.  TEXAS CLAIMS ANY SUCH ISLANDS EXISTING PRIOR TO 1848 BY
PRESCRIPTION AND ACQUIESCENCE, BUT, PLAINLY, A STATE MAY NOT ACQUIRE
PROPERTY FROM THE UNTIED STATES IN THIS MANNER.  UNITED STATES V.
CALIFORNIA, 332 U.S. 19, 39-40(1947). 

WE SHALL ACCORDINGLY AWAIT THE RESULT OF FURTHER PROCEEDINGS BEFORE
THE SPECIAL MASTER WITH RESPECT TO THE OWNERSHIP OF ISLANDS IN THE
WESTERN PORTION OF THE SABINE.  IN ALL OTHER RESPECTS, THE EXCEPTIONS
OF THE PARTIES ARE OVERRULED AND THE REPORT OF THE SPECIAL MASTER IS
CONFIRMED. 

              SO ORDERED. 

/1/  THE PREAMBLE TO THE 1812 LOUISIANA CONSTITUTION DESCRIBED THE
BOUNDARY AS ALONG THE MIDDLE OF THE SABINE, "INCLUDING ALL ITS
ISLANDS." 

/2/  NEITHER THE 1819 TREATY NOR THE 1828 TREATY MENTIONS LOUISIANA
OR ITS WESTERN BOUNDARY. 

/3/  TEXAS' RELEVANT BOUNDARY ALONG THE SABINE THUS BEGAN "ON THE
GULF OF MEXICO, AT THE MOUTH OF THE RIVER SABINE, IN THE SEA,
CONTINUING NORTH ALONG THE WESTERN BANK OF THAT RIVER, TO THE 32D
DEGREE OF LATITUDE.  . . . " 8 STAT. 374. 

/4/  THE LOUISIANA RESOLUTION, PASSED ON MARCH 16, 1848, AND
PRESENTED TO CONGRESS, PROVIDED IN PERTINENT PART: 

"WHEREAS THE CONSTITUTION AND THE LAWS OF THE STATE OF LOUISIANA,
NOR THOSE OF ANY OTHER STATE OR TERRITORY, EXTEND OVER THE WATERS OF
THE SABINE RIVER FROM THE MIDDLE OF SAID STREAM TO THE WESTERN BANK
THEREOF; AND THAT IT IS OF IMPORTANCE TO THE CITIZENS LIVING CONTIGUOUS
THERETO, AND TO THE PEOPLE IN GENERAL, THAT THE JURISDICTION OF SOME
STATE SHOULD BE EXTENDED OVER SAID TERRITORY, IN ORDER THAT CRIMES AND
OFFENCES COMMITTED THEREUPON SHOULD BE REDRESSED IN A SPEEDY AND
CONVENIENT MANNER: 

"THEREFORE BE IT RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES
OF THE STATE OF LOUISIANA IN GENERAL ASSEMBLY CONVENED, 1ST.  THAT THE
CONSTITUTION AND THE JURISDICTION OF THE STATE OF LOUISIANA SHALL BE
EXTENDED OVER PART OF THE UNITED STATES, EMBRACED IN THE FOLLOWING
LIMITS (WHENEVER THE CONSENT OF THE CONGRESS OF THE UNITED STATES CAN
BE PROCURED THERETO,) VIZ: 

"BETWEEN THE MIDDLE OF THE SABINE RIVER AND THE WESTERN BANK
THEREOF, TO BEGIN AT THE MOUTH OF SAID RIVER WHERE IT EMPTIES INTO THE
GULF OF MEXICO, AND THENCE TO CONTINUE ALONG THE SAID WESTERN BANK TO
THE PLACE WHERE IT INTERSECTS THE THIRTY-SECOND DEGREE OF NORTH
LATITUDE, IT BEING THE BOUNDARY LINE BETWEEN THE SAID STATE OF
LOUISIANA AND THE STATES OF-- . 

"2D.  BE IT FURTHER RESOLVED, ETC., THAT OUR SENATORS BE INSTRUCTED,
AND OUR REPRESENTATIVES IN CONGRESS REQUESTED, TO PROCURE THE PASSAGE
OF A LAW ON THE PART OF THE UNITED STATES, CONSENTING TO THE EXTENSION
OF THE CONSTITUTION, AND THE JURISDICTION OF THE LAWS OF THE STATE OF
LOUISIANA, OVER THE TERRITORY IN SAID RIVER."  S. MISC. DOC. NO. 135,
30TH CONG., 1ST SESS. 

THE RESOLUTION ADOPTED BY TEXAS ON MARCH 18, 1848, STATED IN
RELEVANT PART: 

"RESOLUTION OF THE LEGISLATURE OF TEXAS, IN FAVOR OF THE PASSAGE OF
AN ACT, EXTENDING THE JURISDICTION OF THAT STATE OVER THE SABINE PASS,
THE SABINE LAKE, AND THE SABINE RIVER, APRIL 17, 1848. 

"JOINT RESOLUTION INSTRUCTING OUR SENATORS AND REQUESTING OUR
REPRESENTATIVES IN CONGRESS TO USE THEIR EFFORTS TO HAVE A LAW PASSED
TO EXTEND THE JURISDICTION OF TEXAS OVER ONE HALF OF SABINE PASS, LAKE,
AND RIVER. 

"SEC. 1.  BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS,
THAT OUR SENATORS BE INSTRUCTED, AND OUR REPRESENTATIVES IN CONGRESS BE
REQUESTED, TO USE THEIR EFFORTS TO HAVE A LAW PASSED BY CONGRESS,
EXTENDING THE JURISDICTION OF TEXAS OVER ONE HALF OF THE WATERS OF
SABINE LAKE, SABINE PASS, AND SABINE RIVER, UP TO THE 32 DEGREE OF
NORTH LATITUDE."  S. MISC. DOC. NO. 123, 30TH CONG., 1ST SESS. 

/5/  THE FULL REPORT OF THE ACTION BY THE SENATE, CONG. GLOBE, 30TH
CONG., 1ST SESS., 882, IS AS FOLLOWS: 

"MR. BUTLER, FROM THE COMMITTEE ON THE JUDICIARY, REPORTED AN ACT
GIVING THE CONSENT OF THE GOVERNMENT OF THE UNITED STATES TO THE STATE
OF TEXAS TO EXTEND THE EASTERN BOUNDARY SO AS TO INCLUDE WITHIN HER
LIMITS ONE-HALF OF THE SABINE PASS, SABINE LAKE, AND SABINE RIVER AS
FAR NORTH AS THE 32 DEGREE OF NORTH LATITUDE. 

"MR. B. ASKED FOR THE IMMEDIATE CONSIDERATION OF THE BILL, AND
BRIEFLY EXPLAINED ITS CHARACTER.  THE BOUNDARY OF THE UNITED STATES, IT
WAS KNOWN, EMBRACED THE SABINE RIVER AND LAKE TO ITS WESTERN SHORE. 
THE BOUNDARY OF THE STATE OF LOUISIANA EXTENDED TO THE MIDDLE OF THE
SABINE; SO THAT THE HALF OF THE RIVER AND LAKE, TO THE WESTERN SHORE,
BELONGED TO THE UNITED STATES, AND WAS NOT INCLUDED IN THE STATE OF
LOUISIANA; THEREFORE, THE BOUNDARY OF THE STATE AND THAT OF THE UNITED
STATES, WAS NOT IDENTICAL.  THE BILL BEFORE THE SENATE GIVES THE HALF
OF THE RIVER BEYOND THE BOUNDARY OF THE STATE OF LOUISIANA TO THE STATE
OF TEXAS, FOR THE PURPOSE OF ENABLING THE LATTER TO EXTEND HER CRIMINAL
JURISDICTION TO THE LOUISIANA BOUNDARY.  THERE CAN BE NO OBJECTION TO
THE BILL, AND HE HOPED IT WOULD NOW BE PASSED. 

"MR. JOHNSON, OF LA., AND MR. DOWNS IN BEHALF OF THE STATE OF
LOUISIANA, EXPRESSED THEIR ACQUIESCENCE IN THE ARRANGEMENT. 

"THE BILL WAS THEN READ A THIRD TIME AND PASSED." 

/6/  THAT THE "MIDDLE" OF A RIVER WAS TO BE CONSTRUED AS THE THALWEG
IN ESTABLISHING THE BOUNDARY BETWEEN THE STATES NEWLY ADMITTED TO THE
UNION WAS NOT AUTHORITATIVE DOCTRINE PRIOR TO 1892 WHEN IOWA V.
ILLINOIS, 147 U.S. 1, WAS DECIDED AND CERTAINLY NOT WHEN LOUISIANA WAS
ADMITTED TO THE UNION IN 1812.  THE OPINION IN IOWA V. ILLINOIS, SUPRA,
REFERRED TO FIVE TREATIES ON INTERNATIONAL LAW IN SUPPORT OF ITS
HOLDING BUT NOTED THE SHARP CONFLICT ON THE THALWEG RULE BETWEEN THE
ILLINOIS AND IOWA COURTS.  IN DUNLIETH & DUBUQUE BRIDGE CO. V. COUNTY
OF DUBUQUE, 55 IOWA 558, 8 N.W. 443(1881), THOUGH THE PHRASE IN
QUESTION WAS "MIDDLE OF THE MAIN CHANNEL," CERTAINLY A PHRASE THAT
WOULD LEND ITSELF TO A THALWEG CONSTRUCTION, THE COURT INSTEAD RULED
THAT THE PHRASE MEANT THE MIDDLE OF THE RIVER BED, WHILE IN BUTTENUTH
V. ST. LOUIS BRIDGE CO., 123 ILL. 535, 17 N.E. 439(1888), THE COURT
CONSTRUED THE PHRASE "MIDDLE OF THE MISSISSIPPI RIVER" AS BEING UNDER
THE THALWEG DOCTRINE.  AFTER REVIEWING BOTH CASES, THIS COURT CHOSE THE
LATTER RULE OF CONSTRUCTION. 

/7/  A SUFFICIENTLY EXPRESSED INTENT OF CONGRESS ALSO OVERRIDES THE
USUALLY APPLICABLE "EQUAL-FOOTING" RULE, UNITED STATES V. LOUISIANA,
363 U.S. 1, 76-77(1960). 

MR. JUSTICE DOUGLAS, DISSENTING. 

LOUISIANA WAS ADMITTED INTO THE UNION IN 1812.  2 STAT. 701.  THE
CONSTITUTION OF LOUISIANA OF 1812 DESCRIBED HER WESTERN BOUNDARY AS
"BEGINNING AT THE MOUTH OF THE RIVER SABINE, THENCE BY A LINE TO BE
DRAWN ALONG THE MIDDLE OF SAID RIVER, INCLUDING ALL ITS ISLANDS, TO THE
THIRTY-SECOND DEGREE OF LATITUDE.  . . . "  THAT WAS THE DESCRIPTION
/1/  THAT WAS RECITED IN THE 1812 ACT IN WHICH CONGRESS APPROVED THE
CONSTITUTION OF LOUISIANA.  2 STAT. 702.  THERE REMAINED A CONTROVERSY
BETWEEN THIS NATION AND SPAIN OVER THIS WESTERN BOUNDARY AND THE TREATY
OF 1819 SETTLED THE QUESTION BY THE ONLY AUTHORITY THAT COULD ESTABLISH
A BOUNDARY WITH A FOREIGN GOVERNMENT.  RHODE ISLAND V. MASSACHUSETTS,
12 PET. 657, 725. 

THAT TREATY PROVIDED THAT THE BOUNDARY SHOULD START "AT THE MOUTH OF
THE RIVER SABINE, IN THE SEA, CONTINUING NORTH, ALONG THE WESTERN BANK
OF THAT RIVER, TO THE 32D DEGREE OF LATITUDE."  8 STAT. 252, 254, 256. 
WHEN TEXAS WAS ADMITTED TO THE UNION IN 1845, 9 STAT. 108, THAT SAME
BOUNDARY WAS USED TO DESCRIBE HER EASTERN LINE.  8 STAT. 372, 374.  THE
TREATY OF 1828 RECOGNIZED THAT AS THE BOUNDARY LINE BETWEEN LOUISIANA
AND TEXAS FOR IT WAS THE BOUNDARY BETWEEN THE UNITED STATES AND MEXICO,
OF WHICH TEXAS WAS A PART.  8 STAT. 372.  TEXAS DID NOT COME INTO THE
UNION UNTIL 1845.  THE TREATY OF 1819 READ IN CONTEXT MEANS THAT
LOUISIANA'S WESTERN BORDER, COINCIDING WITH THAT OF THE UNITED STATES,
WAS THE WESTERN BANK OF THE SABINE. 

THE 1819 TREATY DOES NOT MENTION LOUISIANA.  BUT LOUISIANA ALONG
THAT SEGMENT OF OUR WESTERN BOUNDARY WAS A BUFFER BETWEEN THIS NATION
AND SPAIN.  IT IS THEREFORE DUBIOUS THAT THE UNITED STATES WAS
BARGAINING FOR THAT NARROW STRIP BETWEEN THE "MIDDLE" OF THE SABINE AND
THE WEST BANK OF THE SABINE AS A DETACHED, ISOLATED PIECE OF OUR PUBLIC
LANDS.  RATHER, IT SEEMS WELL-NIGH CONCLUSIVE THAT IN 1819 THIS NATION
WAS BARGAINING WITH SPAIN FOR A BORDER THAT IN PART AT LEAST OF ITS
REACH WOULD BE THE WESTERN BORDER OF LOUISIANA. 

LOUISIANA CLAIMS THAT MUCH AND ALTERNATIVELY ONLY THE "MIDDLE" OF
THE SABINE WHICH, ACCORDING TO THE THALWEG DOCTRINE, WHEN DESCRIBING
BOUNDARIES ON NAVIGABLE WATERS, MEANS THE MIDDLE OF THE CHANNEL, WHICH
IS NOT NECESSARILY THE GEOGRAPHICAL "MIDDLE."  THE THALWEG DOCTRINE HAD
THAT MEANING BOTH WHEN LOUISIANA WAS ADMITTED TO THE UNION /2/  AND
SINCE THAT TIME.  /3/ 

WHY THEN DOES LOUISIANA LOSE?  WHY IS HER BOUNDARY RESTRICTED? 

THE COURT RELIES ON THE ACT OF CONGRESS OF JULY 5, 1848, 9 STAT.
245, WHICH GAVE TEXAS PERMISSION TO EXTEND HER EASTERN BOUNDARY "SO AS
TO INCLUDE WITHIN HER LIMITS ONE HALF OF SABINE PASS, ONE HALF OF
SABINE LAKE, (AND) ONE HALF OF SABINE RIVER." 

WASHINGTON V. OREGON, 211 U.S. 127(1908), MAKES CLEAR THAT THE
BOUNDARY ORIGINALLY ESTABLISHED WHEN LOUISIANA WAS ADMITTED TO THE
UNION "IS NOT WITHIN THE POWER OF THE NATIONAL GOVERNMENT TO CHANGE . .
. WITHOUT (LOUISIANA'S) CONSENT.  . . . " ID., AT 131. 

GIVEN THAT LEGISLATIVE RESTRAINT, CONGRESS HAD NO POWER TO TAKE THE
WEST BANK FROM LOUISIANA OR, ALTERNATIVELY, IT MUST HAVE USED "ONE
HALF" IN A GENERAL, RATHER THAN A MATHEMATICAL, SENSE, THEREBY GRANTING
TO TEXAS ONLY THOSE AREAS LYING WEST OF THE THALWEG. 

THE SABINE RIVER, SABINE LAKE, AND SABINE PASS ARE ONE CONTINUOUS
BODY OF NAVIGABLE WATER.  HERETOFORE WHEN IN CONTROVERSIES BETWEEN
STATES THE "MIDDLE" OF A NAVIGABLE STREAM HAS BEEN DESCRIBED AS THE
BOUNDARY, THE MIDDLE OF THE CHANNEL IS INTENDED.  IOWA V. ILLINOIS, 147
U.S. 1, 7-8; ARKANSAS V. TENNESSEE, 246 U.S. 158, 173; MINNESOTA V.
WISCONSIN, 252 U.S. 273; WISCONSIN V. MICHIGAN, 295 U.S. 455. 

MISSISSIPPI, WHICH WAS ADMITTED TO THE UNION FIVE YEARS AFTER
LOUISIANA, ARGUED MUCH AS TEXAS DOES IN THIS CASE TO THE EFFECT THAT
CONGRESS HAD GIVEN HER TERRITORY THAT LOUISIANA CLAIMED UNDER AN
EARLIER TITLE.  THE COURT HELD "(IF IT WERE TRUE THAT . . . REPUGNANCE
BETWEEN THE TWO ACTS EXISTED, IT IS ENOUGH TO SAY THAT CONGRESS, AFTER
THE ADMISSION OF LOUISIANA, COULD NOT TAKE AWAY ANY PORTION OF THAT
STATE AND GIVE IT TO THE STATE OF MISSISSIPPI."  LOUISIANA V.
MISSISSIPPI, 202 U.S. 1, 40.  THIS REASONING IS EQUALLY APPLICABLE TO
LOUISIANA'S WESTERN BORDER.     I CONCLUDE IN THE ALTERNATIVE THAT THE
THALWEG DOCTRINE-- WIDELY AND GENERALLY ACCEPTED-- HAS NOT BEEN
CONSTITUTIONALLY DISPLACED BY STATUTORY LANGUAGE IN THIS CASE. 

THE QUESTION REMAINS WHETHER ACTS OF ACQUIESCENCE AND PRESCRIPTION
HAVE SINCE REPLACED THE THALWEG WITH SOME OTHER BOUNDARY BETWEEN
LOUISIANA AND TEXAS.  ALTHOUGH THE SPECIAL MASTER CONCLUDED THAT THE
MAPS AND OTHER EVIDENCE IN QUESTION SUPPORT BOTH THE CONCLUSION THAT
LOUISIANA HAS ACQUIESCED IN A MID-STREAM BOUNDARY, RATHER THAN THE
CLAIMED WEST-BANK BOUNDARY, AND THAT THE MID-STREAM BOUNDARY THUS
RECOGNIZED IS IN THE GEOGRAPHIC CENTER RATHER THAN THE THALWEG, I
CANNOT AGREE.  THE VAST MAJORITY OF THE MAPS IN EVIDENCE DO DENOMINATE
A BOUNDARY BETWEEN THE BANKS OF THE WATERWAYS IN ISSUE.  THE QUALITY OF
THE BOUNDARY REPRESENTATION IS, HOWEVER, QUITE INADEQUATE EVEN TO
DETERMINE WHETHER A GEOGRAPHIC CENTERLINE DESIGNATION WAS ATTEMPTED. 
MOREOVER, THE MAIN CHANNEL IS NOT DEPICTED, SO THAT ANY POSSIBLE
VARIANCE FROM THE THREAD OF THE STREAM IS INCAPABLE OF DETERMINATION. 
/4/  INDEED, THE LANGUAGE EMPLOYED BY THE MASTER TO DESCRIBE THESE MAPS
IN THE APPENDIX TO HIS REPORT DEPICTS THIS UNCERTAINTY; THE TERMS
"MIDDLE," "MID-SABINE," AND "CENTERLINE" APPEAR TO BE USED
INTERCHANGEABLY, WITH ONLY AN OCCASIONAL USE OF THE MORE PRECISE
TERMINOLOGY "GEOGRAPHIC MIDDLE."  /5/  ACQUIESCENCE ON THE PART OF ONE
STATE OR PRESCRIPTION ON THE PART OF ANOTHER SHOULD NOT BE PREDICATED
ON SUCH AN INADEQUATE SHOWING. 

THE CASE SHOULD BE RETURNED TO THE SPECIAL MASTER FOR HEARINGS THAT
WILL THOROUGHLY EXPLORE THE FACTUAL ISSUES CONCERNING THE ALLEGED
ACQUIESCENCE OR PRESCRIPTION. 

/1/  IT WAS ALSO IN THE ENABLING ACT GIVING LOUISIANA AUTHORITY TO
FORM A CONSTITUTION AND STATE GOVERNMENT AND GAIN ADMISSION TO THE
UNION.  2 STAT. 641. 

/2/  THE EARLIER AUTHORITIES ARE DISCUSSED AT LENGTH IN IOWA V.
ILLINOIS, 147 U.S. 1, 7-10(1893). 

/3/  G. THOMPSON ON REAL PROPERTY SEC. 3075(1962 ED.); 3 AMERICAN
LAW OF PROPERTY 12.27 N. 16 (A. CASNER ED. 1952). 

/4/  SEE GENERALLY TEXAS EXS. A, F. BUT SEE LOUISIANA EX. K. 

/5/  REPORT OF SPECIAL MASTER, APP. B. 

SAMUEL D. MCDANIEL ARGUED THE CAUSE FOR PLAINTIFF IN SUPPORT OF THE
REPORT OF THE SPECIAL MASTER.  ON THE BRIEF WERE CRAWFORD C. MARTIN,
ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST ASSISTANT ATTORNEY
GENERAL, AND HOUGHTON BROWNLEE, JR., J. ARTHUR SANDLIN, AND JAMES H.
QUICK, ASSISTANT ATTORNEYS GENERAL. 

OLIVER P. STOCKWELL, SPECIAL ASSISTANT ATTORNEY GENERAL OF
LOUISIANA, ARGUED THE CAUSE FOR DEFENDANT ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER.  WITH HIM ON THE BRIEF WERE WILLIAM J. GUSTE,
JR., ATTORNEY GENERAL, JOHN L. MADDEN, ASSISTANT ATTORNEY GENERAL, AND
SAM H. JONES, JACOB H. MORRISON, AND EMMETT C. SOLE, SPECIAL ASSISTANT
ATTORNEYS GENERAL. 
..END :












SALYER LAND CO. V. TULARE WATER DISTRICT, 410 U.S. 719 


       SALYER LAND CO. ET AL. V. TULARE LAKE BASIN WATER STORAGE

           DISTRICT

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF CALIFORNIA

        NO. 71-1456.  ARGUED JANUARY 8, 1973-- DECIDED MARCH 20,

           1973 


APPELLEE DISTRICT EXISTS FOR THE PURPOSE OF ACQUIRING, STORING, AND
DISTRIBUTING WATER FOR FARMING IN THE TULARE LAKE BASIN.  ONLY
LANDOWNERS ARE QUALIFIED TO ELECT THE DISTRICT'S BOARD OF DIRECTORS,
VOTES BEING APPORTIONED ACCORDING TO THE ASSESSED VALUATION OF THE
LANDS.  A THREE-JUDGE DISTRICT COURT, AGAINST CHALLENGE BY APPELLANTS,
HELD THAT THE LIMITATION OF THE FRANCHISE TO LANDOWNERS COMPORTED WITH
EQUAL PROTECTION REQUIREMENTS.  HELD: 

1.  RESTRICTING THE VOTERS TO LANDOWNERS WHO MAY OR MAY NOT BE
RESIDENTS DOES NOT VIOLATE THE PRINCIPLE ENUNCIATED IN SUCH CASES AS
REYNOLDS V. SIMS, 377 U.S. 533, AND KRAMER V. UNION SCHOOL DISTRICT,
395 U.S. 621, THAT GOVERNING BODIES SHOULD BE SELECTED IN A POPULAR
ELECTION IN WHICH EVERY PERSON'S VOTE IS EQUAL.  PP. 726-730. 

  (A) THE ACTIVITIES OF APPELLEE DISTRICT FALL SO
DISPROPORTIONATELY ON LANDOWNERS AS A GROUP THAT IT IS NOT UNREASONABLE
THAT THE STATUTORY FRAMEWORK FOCUSES ON THE LAND BENEFITED, RATHER THAN
ON PEOPLE AS SUCH.  PP. 726-728. 

  (B) ALTHOUGH APPELLEE DISTRICT HAS SOME GOVERNMENTAL POWERS, IT
PROVIDES NONE OF THE GENERAL PUBLIC SERVICES ORDINARILY ATTRIBUTED TO A
GOVERNING BODY.  PP. 728-729. 

2.  SINCE ASSESSMENTS AGAINST LANDOWNERS ARE THE SOLE MEANS BY WHICH
EXPENSES OF APPELLEE DISTRICT ARE PAID, IT IS NOT IRRATIONAL TO REPOSE
THE FRANCHISE IN LANDOWNERS BUT NOT RESIDENTS.  PP. 730-731. 

3.  THE EXCLUSION OF LESSEES FROM VOTING DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE SINCE THE SHORT-TERM LESSEE'S INTEREST MAY BE
SUBSTANTIALLY LESS THAN THAT OF A LANDOWNER AND, THE FRANCHISE BEING
EXERCISABLE BY PROXY, OTHER LESSEES MAY NEGOTIATE TO HAVE THE FRANCHISE
INCLUDED IN THEIR LEASES.  PP. 731-733. 

4.  WEIGHTING THE VOTE ACCORDING TO ASSESSED VALUATION OF THE LAND
DOES NOT EVADE THE PRINCIPLE THAT WEALTH HAS NO RELATION TO VOTER
QUALIFICATIONS WHERE, AS HERE, THE EXPENSE AS WELL AS THE BENEFIT IS
PROPORTIONAL TO THE LAND'S ASSESSED VALUE.  PP. 733-735. 

342 F.SUPP.  144, AFFIRMED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ.,
JOINED, POST, P. 735. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

THIS IS ANOTHER IN THE LINE OF CASES IN WHICH THE COURT HAS HAD
OCCASION TO CONSIDER THE LIMITS IMPOSED BY THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT ON LEGISLATION APPORTIONING REPRESENTATION
IN STATE AND LOCAL GOVERNING BODIES AND ESTABLISHING QUALIFICATIONS FOR
VOTERS IN THE ELECTION OF SUCH REPRESENTATIVES.  REYNOLDS V. SIMS, 377
U.S. 533(1964), ENUNCIATED THE CONSTITUTIONAL STANDARD FOR
APPORTIONMENT OF STATE LEGISLATURES.  LATER CASES SUCH AS AVERY V.
MIDLAND COUNTY, 390 U.S. 474(1968), AND HADLEY V. JUNIOR COLLEGE
DISTRICT, 397 U.S. 50(1970), EXTENDED THE REYNOLDS RULE TO THE
GOVERNING BODIES OF A COUNTY AND OF A JUNIOR COLLEGE DISTRICT,
RESPECTIVELY.  WE ARE HERE PRESENTED WITH THE ISSUE EXPRESSLY RESERVED
IN AVERY, SUPRA: 

"WERE THE (COUNTY'S GOVERNING BODY) A SPECIAL-PURPOSE UNIT OF
GOVERNMENT ASSIGNED THE PERFORMANCE OF FUNCTIONS AFFECTING DEFINABLE
GROUPS OF CONSTITUENTS MORE THAN OTHER CONSTITUENTS, WE WOULD HAVE TO
CONFRONT THE QUESTION WHETHER SUCH A BODY MAY BE APPORTIONED IN WAYS
WHICH GIVE GREATER INFLUENCE TO THE CITIZENS MOST AFFECTED BY THE
ORGANIZATION'S FUNCTIONS."  390 U.S.,AT 483-484. 

THE PARTICULAR TYPE OF LOCAL GOVERNMENT UNIT WHOSE ORGANIZATION IS
CHALLENGED ON CONSTITUTIONAL GROUNDS IN THIS CASE IS A WATER STORAGE
DISTRICT, ORGANIZED PURSUANT TO THE CALIFORNIA WATER STORAGE DISTRICT
ACT, CALIF. WATER CODE SEC. 39000 ET SEQ. THE PECULIAR PROBLEMS OF
ADEQUATE WATER SUPPLIES FACED BY MOST OF THE WESTERN THIRD OF THE
NATION HAVE BEEN DESCRIBED BY MR. JUSTICE SUTHERLAND, WHO WAS HIMSELF
INTIMATELY FAMILIAR WITH THEM, IN CALIFORNIA OREGON POWER CO. V. BEAVER
PORTLAND CEMENT CO., 295 U.S. 142, 156-157(1935): 

"THESE STATES AND TERRITORIES COMPRISED THE WESTERN THIRD OF THE
UNITED STATES-- A VAST EMPIRE IN EXTENT, BUT STILL SPARSELY SETTLED. 
FROM A LINE EAST OF THE ROCKY MOUNTAINS ALMOST TO THE PACIFIC OCEAN,
AND FROM THE CANADIAN BORDER TO THE BOUNDARY OF MEXICO-- AN AREA
GREATER THAN THAT OF THE ORIGINAL THIRTEEN STATES-- THE LANDS CAPABLE
OF REDEMPTION, IN THE MAIN, CONSTITUTED A DESERT, IMPOSSIBLE OF
AGRICULTURAL USE WITHOUT ARTIFICIAL IRRIGATION. 

     "IN THE BEGINNING, THE TASK OF RECLAIMING THIS AREA WAS LEFT
TO

  THE UNAIDED EFFORTS OF THE PEOPLE WHO FOUND THEIR WAY BY PAINFUL

  EFFORT TO ITS INHOSPITABLE SOLITUDES.  THESE WESTERN PIONEERS,

  EMULATING THE SPIRIT OF SO MANY OTHERS WHO HAD GONE BEFORE THEM

  IN SIMILAR VENTURES, FACED THE DIFFICULT PROBLEM OF WRESTING A

  LIVING AND CREATING HOMES FROM THE RAW ELEMENTS ABOUT THEM, AND

  THREW DOWN THE GAGE OF BATTLE TO THE FORCES OF NATURE.  WITH

  IMPERFECT TOOLS, THEY BUILT DAMS, EXCAVATED CANALS, CONSTRUCTED

  DITCHES, PLOWED AND CULTIVATED THE SOIL, AND TRANSFORMED DRY AND

  DESOLATE LANDS INTO GREEN FIELDS AND LEAFY ORCHARDS.  . . . " 

CALIFORNIANS, IN COMMON WITH OTHER RESIDENTS OF THE WEST, FOUND THE
STATE'S RIVERS AND STREAMS IN THEIR NATURAL STATE TO PRESENT THE
FAMILIAR PARADOX OF FEAST OR FAMINE.  WITH MELTING SNOW IN THE HIGH
MOUNTAINS IN THE SPRING, SMALL STREAMS BECAME ROARING FRESHETS, AND THE
RIVERS THEY FED CARRIED THE POTENTIAL FOR DESTRUCTIVE FLOODS.  BUT WITH
THE END OF THE RAINY SEASON IN THE EARLY SPRING, FARMERS DEPENDED
ENTIRELY UPON WATER FROM SUCH STREAMS AND RIVERS UNTIL THE RAINY SEASON
AGAIN BEGAN IN THE FALL.  LONG BEFORE THAT TIME, HOWEVER, RIVERS WHICH
RAN BANK FULL IN THE SPRING HAD BEEN REDUCED TO A BARE TRICKLE OF
WATER. 

IT WAS NOT ENOUGH THEREFORE, FOR INDIVIDUAL FARMERS OR GROUPS OF
FARMERS TO BUILD IRRIGATION CANALS AND DITCHES WHICH DEPENDED FOR THEIR
OPERATION ON THE NATURAL FLOW OF THESE STREAMS.  STORAGE DAMS HAD TO BE
CONSTRUCTED TO IMPOUND IN THEIR RESERVOIRS THE FLOW OF THE RIVERS AT
FLOOD STAGE FOR LATER RELEASE DURING THE DRY SEASON REGIMEN OF THESE
STREAMS.  FOR THE CONSTRUCTION OF MAJOR DAMS TO FACILITATE THE STORAGE
OF WATER FOR IRRIGATION OF LARGE AREAS, THE FULL RESOURCES OF WATER FOR
IRRIGATION OF LARGE AREAS, THE FULL RESOURCES OF THE STATE AND
FREQUENTLY OF THE FEDERAL GOVERNMENT WERE NECESSARY.  /1/ 

BUT FOR LESS COSTLY PROJECTS WHICH WOULD BENEFIT A MORE RESTRICTED
GEOGRAPHIC AREA, THE STATE WAS FREQUENTLY EITHER UNABLE OR UNWILLING TO
PLEDGE ITS CREDIT OR ITS RESOURCES.  THE CALIFORNIA LEGISLATURE,
THEREFORE, HAS AUTHORIZED A NUMBER OF INSTRUMENTALITIES, INCLUDING
WATER STORAGE DISTRICTS SUCH AS THE APPELLEE HERE, TO PROVIDE A LOCAL
RESPONSE TO WATER PROBLEMS. 

SOME HISTORY OF THE EXPERIENCE OF CALIFORNIA AND THE OTHER WESTERN
STATES WITH THE PROBLEMS OF WATER DISTRIBUTION IS CONTAINED IN
FALLBROOK IRRIGATION DISTRICT V. BRADLEY, 164 U.S. 112, 151-154(1896),
IN WHICH THE CONSTITUTIONALITY OF CALIFORNIA'S WRIGHT ACT WAS SUSTAINED
AGAINST CLAIMS OF DENIAL OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.  WHILE THE IRRIGATION DISTRICT WAS
APPARENTLY THE FIRST LOCAL GOVERNMENTAL UNIT AUTHORIZED TO DEAL WITH
WATER DISTRIBUTION, IT IS BY NO MEANS THE ONLY ONE.  GENERAL
LEGISLATION IN CALIFORNIA AUTHORIZES THE CREATION, NOT ONLY OF
IRRIGATION DISTRICTS, BUT OF WATER CONSERVATION DISTRICTS, WATER
STORAGE AND CONSERVATION DISTRICTS, FLOOD CONTROL DISTRICTS, AND WATER
STORAGE DISTRICTS SUCH AS APPELLEE.  /2/ 

APPELLEE DISTRICT CONSISTS OF 193,000 ACRES OF INTENSIVELY
CULTIVATED, HIGHLY FERTILE FARM LAND LOCATED IN THE TULARE LAKE BASIN. 
ITS POPULATION CONSISTS OF 77 PERSONS, INCLUDING 18 CHILDREN, MOST OF
WHOM ARE EMPLOYEES OF ONE OR ANOTHER OF THE FOUR CORPORATIONS THAT FARM
85% OF THE LAND IN THE DISTRICT. 

SUCH DISTRICTS ARE AUTHORIZED TO PLAN PROJECTS AND EXECUTE APPROVED
PROJECTS "FOR THE ACQUISITION, APPROPRIATION, DIVERSION, STORAGE,
CONSERVATION, AND DISTRIBUTION OF WATER.  . . . " CALIF. WATER CODE
SEC. 42200 ET SEQ. /3/  INCIDENTAL TO THIS GENERAL POWER, DISTRICTS MAY
"ACQUIRE, IMPROVE, AND OPERATE" ANY NECESSARY WORKS FOR THE STORAGE AND
DISTRIBUTION OF WATER AS WELL AS ANY DRAINAGE OR RECLAMATION WORKS
CONNECTED THEREWITH, AND THE GENERATION AND DISTRIBUTION OF
HYDROELECTRIC POWER MAY BE PROVIDED FOR.  /4/  ID., SECS. 43000,
43025.  THEY MAY FIX TOLLS AND CHARGES FOR THE USE OF WATER AND COLLECT
THEM FROM ALL PERSONS RECEIVING THE BENEFIT OF THE WATER OR OTHER
SERVICES IN PROPORTION TO THE SERVICES RENDERED.  ID., SEC. 43006.  THE
COSTS OF THE PROJECTS ARE ASSESSED AGAINST DISTRICT LAND IN ACCORDANCE
WITH THE BENEFITS ACCRUING TO EACH TRACT HELD IN SEPARATE OWNERSHIP. 
ID., SECS. 46175, 16176.  AND LAND THAT IS NOT BENEFITED MAY BE
WITHDRAWN FROM THE DISTRICT ON PETITION.  ID., SEC. 48029. 

GOVERNANCE OF THE DISTRICTS IS UNDERTAKEN BY A BOARD OF DIRECTORS. 
ID., SEC. 40658.  EACH DIRECTOR IS ELECTED FROM ONE OF THE DIVISIONS
WITHIN THE DISTRICT, ID., SEC. 39929, AND EACH MUST TAKE AN OFFICIAL
OATH AND EXECUTE A BOND.  ID., SEC. 40301.  GENERAL ELECTIONS FOR THE
DIRECTORS ARE TO BE HELD IN ODD-NUMBERED YEARS.  ID., SECS. 39027,
41300 ET SEQ. 

IT IS THE VOTER QUALIFICATION FOR SUCH ELECTIONS THAT APPELLANTS
CLAIM INVIDIOUSLY DISCRIMINATES AGAINST THEM AND PERSONS SIMILARLY
SITUATED.  APPELLANTS ARE LANDOWNERS, A LANDOWNER-LESSEE, AND RESIDENTS
WITHIN THE AREA INCLUDED IN THE APPELLEE'S WATER STORAGE DISTRICT. 
THEY BROUGHT THIS ACTION UNDER 42 U.S.C. 1983, SEEKING DECLARATORY AND
INJUNCTIVE RELIEF IN AN EFFORT TO PREVENT APPELLEE FROM GIVING EFFECT
TO CERTAIN PROVISIONS OF THE CALIFORNIA WATER CODE.  THEY ALLEGE THAT
SECS. 41000 /5/  AND 41001 /6/  UNCONSTITUTIONALLY DENY TO THEM THE
EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT, IN
THAT ONLY LANDOWNERS ARE PERMITTED TO VOTE IN WATER STORAGE DISTRICT
GENERAL ELECTIONS, AND VOTES IN THOSE ELECTIONS ARE APPORTIONED
ACCORDING TO THE ASSESSED VALUATION OF THE LAND.  A THREE-JUDGE COURT
WAS CONVENED PURSUANT TO 28 U.S.C. 2284, AND THE CASE WAS SUBMITTED ON
FACTUAL STATEMENTS OF THE PARTIES AND BRIEFS, WITHOUT TESTIMONY OR ORAL
ARGUMENT.  A MAJORITY OF THE DISTRICT COURT HELD THAT BOTH STATUTES
COMPORTED WITH THE DICTATES OF THE EQUAL PROTECTION CLAUSE, AND
APPELLANTS HAVE APPEALED THAT JUDGMENT DIRECTLY TO THIS COURT UNDER 28
U.S.C. 1253. 

IN WILLIAMS V. RHODES, 393 U.S. 23(1968), A CASE IN WHICH THE OHIO
LEGISLATIVE SCHEME FOR REGULATING THE ELECTORAL FRANCHISE WAS
CHALLENGED, THE COURT SAID: 

"(THIS COURT HAS FIRMLY ESTABLISHED THE PRINCIPLE THAT THE EQUAL
PROTECTION CLAUSE DOES NOT MAKE EVERY MINOR DIFFERENCE IN THE
APPLICATION OF LAWS TO DIFFERENT GROUPS A VIOLATION OF OUR
CONSTITUTION.  BUT WE HAVE ALSO HELD MANY TIMES THAT 'INVIDIOUS'
DISTINCTIONS CANNOT BE ENACTED WITHOUT A VIOLATION OF THE EQUAL
PROTECTION CLAUSE.  IN DETERMINING WHETHER OR NOT A STATE LAW VIOLATES
THE EQUAL PROTECTION CLAUSE, WE MUST CONSIDER THE FACTS AND
CIRCUMSTANCES BEHIND THE LAW, THE INTERESTS WHICH THE STATE CLAIMS TO
BE PROTECTING, AND THE INTERESTS OF THOSE WHO ARE DISADVANTAGED BY THE
CLASSIFICATION."  ID., AT 30. 

WE THEREFORE TURN NOW TO THE DETERMINATION OF WHETHER THE CALIFORNIA
STATUTORY SCHEME ESTABLISHING WATER STORAGE DISTRICTS VIOLATES THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

        I 

IT IS FIRST ARGUED THAT SEC. 41000, LIMITING THE VOTE TO THE
DISTRICT LANDOWNERS, IS UNCONSTITUTIONAL SINCE NONLANDOWNING RESIDENTS
HAVE AS MUCH INTEREST IN THE OPERATIONS OF A DISTRICT AS LANDOWNERS WHO
MAY OR MAY NOT BE RESIDENTS.  PARTICULARLY, IT IS POINTED OUT THAT THE
HOMES OF RESIDENTS MAY BE DAMAGED BY FLOODS WITHIN THE DISTRICT'S
BOUNDARIES, AND THAT FLOODS MAY, AS WITH APPELLANT ELLISON, CAUSE THEM
TO LOSE THEIR JOBS.  SUPPORT FOR THIS POSITION IS SAID TO COME FROM THE
RECENT DECISIONS OF THIS COURT STRIKING DOWN VARIOUS STATE LAWS THAT
LIMITED VOTING TO LANDOWNERS, PHOENIX V. KOLODZIEJSKI, 399 U.S.
204(1970), CIPRIANO V. CITY OF HOUMA, 395 U.S. 701(1969), AND KRAMER V.
UNION SCHOOL DISTRICT, 395 U.S. 621(1969). 

IN KRAMER, THE COURT WAS CONFRONTED WITH A VOTER QUALIFICATION
STATUTE FOR SCHOOL DISTRICT ELECTIONS THAT LIMITED THE VOTE TO
OTHERWISE QUALIFIED DISTRICT RESIDENTS WHO WERE EITHER (1) THE OWNERS
OR LESSEES OF TAXABLE REAL PROPERTY LOCATED WITHIN THE DISTRICT, (2)
SPOUSES OF PERSONS OWNING QUALIFYING PROPERTY, OR (3) PARENTS OR
GUARDIANS OF CHILDREN ENROLLED FOR A SPECIFIED TIME DURING THE
PRECEDING YEAR IN A LOCAL DISTRICT SCHOOL.  WITHOUT REACHING THE ISSUE
OF WHETHER OR NOT A STATE MAY IN SOME CIRCUMSTANCES LIMIT THE EXERCISE
OF THE FRANCHISE TO THOSE PRIMARILY INTERESTED OR PRIMARILY AFFECTED BY
A GIVEN GOVERNMENTAL UNIT, IT WAS HELD THAT THE ABOVE CLASSIFICATIONS
DID NOT MEET THAT STATE-ARTICULATED GOAL SINCE THEY EXCLUDED MANY
PERSONS WHO HAD DISTINCT AND DIRECT INTERESTS IN SCHOOL MEETING
DECISIONS AND INCLUDED MANY PERSONS WHO HAD, AT BEST, REMOTE AND
INDIRECT INTERESTS.  ID., AT 632-633. 

SIMILARLY, IN CIPRIANO V. CITY OF HOUMA, SUPRA, DECIDED THE SAME
DAY, PROVISIONS OF LOUISIANA LAW WHICH GAVE ONLY PROPERTY TAXPAYERS THE
RIGHT TO VOTE IN ELECTIONS CALLED TO APPROVE THE ISSUANCE OF REVENUE
BONDS BY A MUNICIPAL UTILITY WERE DECLARED VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE SINCE THE OPERATION OF THE UTILITY SYSTEMS AFFECTED
VIRTUALLY EVERY RESIDENT OF THE CITY, NOT JUST THE 40% OF THE
REGISTERED VOTERS WHO WERE ALSO PROPERTY TAXPAYERS, AND SINCE THE BONDS
WERE NOT IN ANY WAY FINANCED BY PROPERTY TAX REVENUE.  395 U.S.,AT
705.  AND THE RATIONALE OF CIPRIANO WAS EXPANDED TO INCLUDE GENERAL
OBLIGATION BONDS OF MUNICIPALITIES IN PHOENIX V. KOLODZIEJSKI, SUPRA.
IT WAS THERE NOTED THAT NOT ONLY DID THOSE PERSONS EXCLUDED FROM VOTING
HAVE A GREAT INTEREST IN APPROVING OR DISAPPROVING MUNICIPAL
IMPROVEMENTS, BUT THEY ALSO CONTRIBUTED BOTH DIRECTLY THROUGH LOCAL
TAXES AND INDIRECTLY THROUGH INCREASED RENTS AND COSTS TO THE SERVICING
OF THE BONDS.  399 U.S.,AT 210-211. 

CIPRIANO AND PHOENIX INVOLVED APPLICATION OF THE "ONE PERSON, ONE
VOTE" PRINCIPLE TO RESIDENTS OF UNITS OF LOCAL GOVERNMENTS EXERCISING
GENERAL GOVERNMENTAL POWER, AS THAT TERM WAS DEFINED IN AVERY V.
MIDLAND COUNTY, 390 U.S. 474(1968).  KRAMER AND HADLEY V. JUNIOR
COLLEGE DISTRICT, 397 U.S. 50(1970), EXTENDED THE "ONE PERSON, ONE
VOTE" PRINCIPLE TO SCHOOL DISTRICTS EXERCISING POWERS WHICH, 

"WHILE NOT FULLY AS BROAD AS THOSE OF THE MIDLAND COUNTY
COMMISSIONERS, CERTAINLY SHOW THAT THE TRUSTEES PERFORM IMPORTANT
GOVERNMENTAL FUNCTIONS WITHIN THE DISTRICTS, AND WE THINK THESE POWERS
ARE GENERAL ENOUGH AND HAVE SUFFICIENT IMPACT THROUGHOUT THE DISTRICT
TO JUSTIFY THE CONCLUSION THAT THE PRINCIPLE WHICH WE APPLIED IN AVERY
SHOULD ALSO BE APPLIED HERE."  397 U.S.,AT 53-54. 

BUT THE COURT WAS ALSO CAREFUL TO STATE THAT: 

"IT IS OF COURSE POSSIBLE THAT THERE MIGHT BE SOME CASE IN WHICH A
STATE ELECTS CERTAIN FUNCTIONARIES WHOSE DUTIES ARE SO FAR REMOVED FROM
NORMAL GOVERNMENTAL ACTIVITIES AND SO DISPROPORTIONATELY AFFECT
DIFFERENT GROUPS THAT A POPULAR ELECTION IN COMPLIANCE WITH REYNOLDS,
SUPRA, MIGHT NOT BE REQUIRED, BUT CERTAINLY WE SEE NOTHING IN THE
PRESENT CASE THAT INDICATES THAT THE ACTIVITIES OF THESE TRUSTEES FIT
IN THAT CATEGORY.  EDUCATION HAS TRADITIONALLY BEEN A VITAL
GOVERNMENTAL FUNCTION, AND THESE TRUSTEES, WHOSE ELECTION THE STATE HAS
OPENED TO ALL QUALIFIED VOTERS, ARE GOVERNMENTAL OFFICIALS IN EVERY
RELEVANT SENSE OF THAT TERM."  ID., AT 56.     WE CONCLUDE THAT THE
APPELLEE WATER STORAGE DISTRICT, BY REASON OF ITS SPECIAL LIMITED
PURPOSE AND OF THE DISPROPORTIONATE EFFECT OF ITS ACTIVITIES ON
LANDOWNERS AS A GROUP, IS THE SORT OF EXCEPTION TO THE RULE LAID DOWN
IN REYNOLDS WHICH THE QUOTED LANGUAGE FROM HADLEY, SUPRA, AND THE
DECISION IN AVERY, SUPRA, CONTEMPLATED. 

THE APPELLEE DISTRICT IN THIS CASE, ALTHOUGH VESTED WITH SOME
TYPICAL GOVERNMENTAL POWERS, /7/  HAS RELATIVELY LIMITED AUTHORITY. 
ITS PRIMARY PURPOSE, INDEED THE REASON FOR ITS EXISTENCE, IS TO PROVIDE
FOR THE ACQUISITION, STORAGE, AND DISTRIBUTION OF WATER FOR FARMING IN
THE TULARE LAKE BASIN.  /8/  IT PROVIDES NO OTHER GENERAL PUBLIC
SERVICES SUCH AS SCHOOLS, HOUSING, TRANSPORTATION, UTILITIES, ROADS, OR
ANYTHING ELSE OF THE TYPE ORDINARILY FINANCED BY A MUNICIPAL BODY. 
APP. 86.  THERE ARE NO TOWNS, SHOPS, HOSPITALS, OR OTHER FACILITIES
DESIGNED TO IMPROVE THE QUALITY OF LIFE WITHIN THE DISTRICT BOUNDARIES,
AND IT DOES NOT HAVE A FIRE DEPARTMENT, POLICE, BUSES, OR TRAINS. 
IBID. 

NOT ONLY DOES THE DISTRICT NOT EXERCISE WHAT MIGHT BE THOUGHT OF AS
"NORMAL GOVERNMENTAL" AUTHORITY, BUT ITS ACTIONS DISPROPORTIONATELY
AFFECT LANDOWNERS.  ALL OF THE COSTS OF DISTRICT PROJECTS ARE ASSESSED
AGAINST LAND BY ASSESSORS IN PROPORTION TO THE BENEFITS RECEIVED. 
LIKEWISE, CHARGES FOR SERVICES RENDERED ARE COLLECTIBLE FROM PERSONS
RECEIVING THEIR BENEFIT IN PROPORTION TO THE SERVICES.  WHEN SUCH
PERSONS ARE DELINQUENT IN PAYMENT, JUST AS IN THE CASE OF DELINQUENCY
IN PAYMENTS OF ASSESSMENTS, SUCH CHARGES BECOME A LIEN ON THE LAND. 
CALIF. WATER CODE SECS. 47183, 46280.  IN SHORT, THERE IS NO WAY THAT
THE ECONOMIC BURDENS OF DISTRICT OPERATIONS CAN FALL ON RESIDENTS QUA
RESIDENTS, AND THE OPERATIONS OF THE DISTRICTS PRIMARILY AFFECT THE
LAND WITHIN THEIR BOUNDARIES.  /9/ 

UNDER THESE CIRCUMSTANCES, IT IS QUITE UNDERSTANDABLE THAT THE
STATUTORY FRAMEWORK FOR ELECTION OF DIRECTORS OF THE APPELLEE FOCUSES
ON THE LAND BENEFITED, RATHER THAN ON PEOPLE AS SUCH.  CALIFORNIA HAS
NOT OPENED THE FRANCHISE TO ALL RESIDENTS, AS MISSOURI HAD IN HADLEY,
SUPRA, NOR TO ALL RESIDENTS WITH SOME EXCEPTIONS, AS NEW YORK HAD IN
KRAMER, SUPRA.  THE FRANCHISE IS EXTENDED TO LANDOWNERS, WHETHER THEY
RESIDE IN THE DISTRICT OR OUT OF IT, AND INDEED WHETHER OR NOT THEY ARE
NATURAL PERSONS WHO WOULD BE ENTITLED TO VOTE IN A MORE TRADITIONAL
POLITICAL ELECTION.  APPELLANTS DO NOT CHALLENGE THE ENFRANCHISEMENT OF
NONRESIDENT LANDOWNERS OR OF CORPORATE LANDOWNERS FOR PURPOSES OF
ELECTION OF THE DIRECTORS OF APPELLEE.  THUS, TO SUSTAIN THEIR
CONTENTION THAT ALL RESIDENTS OF THE DISTRICT MUST BE ACCORDED A VOTE
WOULD NOT RESULT MERELY IN THE STRIKING DOWN OF AN EXCLUSION FROM WHAT
WAS OTHERWISE A DELINEATED CLASS, BUT WOULD INSTEAD ENGRAFT ONTO THE
STATUTORY SCHEME A WHOLLY NEW CLASS OF VOTERS IN ADDITION TO THOSE
ENFRANCHISED BY THE STATUTE. 

WE HOLD, THEREFORE, THAT THE POPULAR ELECTION REQUIREMENTS
ENUNCIATED BY REYNOLDS, SUPRA, AND SUCCEEDING CASES ARE INAPPLICABLE TO
ELECTIONS SUCH AS THE GENERAL ELECTION OF APPELLEE WATER STORAGE
DISTRICT. 

        II 

EVEN THOUGH APPELLANTS DERIVE NO BENEFIT FROM THE REYNOLDS AND
KRAMER LINES OF CASES, THEY ARE, OF COURSE ENTITLED TO HAVE THEIR EQUAL
PROTECTION CLAIM ASSESSED TO DETERMINE WHETHER THE STATE'S DECISION TO
DENY THE FRANCHISE TO RESIDENTS OF THE DISTRICT WHILE GRANTING IT TO
LANDOWNERS WAS "WHOLLY IRRELEVANT TO ACHIEVEMENT OF THE REGULATION'S
OBJECTIVES," KOTCH V. RIVER PORT PILOT COMM'RS, 330 U.S. 552,
556(1947).  NO DOUBT RESIDENTS WITHIN THE DISTRICT MAY BE AFFECTED BY
ITS ACTIVITIES.  BUT THIS ARGUMENT PROVES TOO MUCH.  SINCE ASSESSMENTS
IMPOSED BY THE DISTRICT BECOME A COST OF DOING BUSINESS FOR THOSE WHO
FARM WITHIN IT, AND THAT COST MUST ULTIMATELY BE PASSED ALONG TO THE
CONSUMERS OF THE PRODUCE, FOOD SHOPPERS IN FAR AWAY METROPOLITAN AREAS
ARE TO SOME EXTENT LIKEWISE "AFFECTED" BY THE ACTIVITIES OF THE
DISTRICT.  CONSTITUTIONAL ADJUDICATION CANNOT REST ON ANY SUCH "HOUSE
THAT JACK BUILT" FOUNDATION, HOWEVER.  THE CALIFORNIA LEGISLATURE COULD
QUITE REASONABLY HAVE CONCLUDED THAT THE NUMBER OF LANDOWNERS AND
OWNERS OF SUFFICIENT AMOUNTS OF ACREAGE WHOSE CONSENT WAS NECESSARY TO
ORGANIZE THE DISTRICT WOULD NOT HAVE SUBJECTED THEIR LAND TO THE LIEN
OF ITS POSSIBLY VERY SUBSTANTIAL ASSESSMENTS UNLESS THEY HAD A DOMINANT
VOICE IN ITS CONTROL.  SINCE THE SUBJECTION OF THE OWNERS' LANDS TO
SUCH LIENS WAS THE BASIS BY WHICH THE DISTRICT WAS TO OBTAIN FINANCING,
THE PROPOSED DISTRICT HAD AS A PRACTICAL MATTER TO ATTRACT LANDOWNER
SUPPORT.  NOR, SINCE ASSESSMENTS AGAINST LANDOWNERS WERE TO BE THE SOLE
MEANS BY WHICH THE EXPENSES OF THE DISTRICT WERE TO BE PAID, COULD IT
BE SAID TO BE UNFAIR OR INEQUITABLE TO REPOSE THE FRANCHISE IN
LANDOWNERS BUT NOT RESIDENTS.  LANDOWNERS AS A CLASS WERE TO BEAR THE
ENTIRE BURDEN OF THE DISTRICT'S COSTS, AND THE STATE COULD RATIONALLY
CONCLUDE THAT THEY, TO THE EXCLUSION OF RESIDENTS, SHOULD BE CHARGED
WITH RESPONSIBILITY FOR ITS OPERATION.  WE CONCLUDE, THEREFORE, THAT
NOTHING IN THE EQUAL PROTECTION CLAUSE PRECLUDED CALIFORNIA FROM
LIMITING THE VOTING FOR DIRECTORS OF APPELLEE DISTRICT BY TOTALLY
EXCLUDING THOSE WHO MERELY RESIDE WITHIN THE DISTRICT. 

        III 

APPELLANTS ASSERT THAT EVEN IF RESIDENTS MAY BE EXCLUDED FROM THE
VOTE, LESSEES WHO FARM THE LAND HAVE INTERESTS THAT ARE
INDISTINGUISHABLE FROM THOSE OF THE LANDOWNERS.  LIKE LANDOWNERS, THEY
TAKE AN INTEREST IN INCREASING THE AVAILABLE WATER FOR FARMING AND,
BECAUSE THE COSTS OF DISTRICT PROJECTS MAY BE PASSED ON TO THEM EITHER
BY EXPRESS AGREEMENT OR BY INCREASED RENTALS, THEY HAVE AN EQUAL
INTEREST IN THE COSTS. 

LESSEES UNDOUBTEDLY DO HAVE AN INTEREST IN THE ACTIVITIES OF
APPELLEE DISTRICT ANALOGOUS TO THAT OF LANDOWNERS IN MANY RESPECTS. 
BUT IN THE TYPE OF SPECIAL DISTRICT WE NOW HAVE BEFORE US, THE QUESTION
FOR OUR DETERMINATION IS NOT WHETHER OR NOT WE WOULD HAVE LUMPED THEM
TOGETHER HAD WE BEEN ENACTING THE STATUTE IN QUESTION, BUT INSTEAD
WHETHER "IF ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO JUSTIFY"
CALIFORNIA'S DECISION TO DENY THE FRANCHISE TO LESSEES WHILE GRANTING
IT TO LANDOWNERS.  MCGOWAN V. MARYLAND, 366 U.S. 420, 426(1961). 

THE TERM "LESSEES" MAY EMBRACE THE HOLDERS OF A WIDE SPECTRUM OF
LEASEHOLD INTERESTS IN LAND, FROM THE MOUTH-TO-MOUTH TENANT HOLDING
UNDER AN ORAL LEASE, ON THE ONE HAND, TO THE LONG-TERM LESSEE HOLDING
UNDER A CAREFULLY NEGOTIATED WRITTEN LEASE, ON THE OTHER.  THE SYSTEM
WHICH PERMITTED A LESSEE FOR A VERY SHORT TERM TO VOTE MIGHT EASILY
LEND ITSELF TO MANIPULATION ON THE PART OF LARGE LANDOWNERS BECAUSE OF
THE EASE WITH WHICH SUCH LANDOWNERS COULD CREATE SHORT-TERM INTERESTS
ON THE PART OF LOYAL EMPLOYEES.  AND, EVEN APART FROM THE FEAR OF SUCH
MANIPULATION, CALIFORNIA MAY WELL HAVE FELT THAT LANDOWNERS WOULD BE
UNWILLING TO JOIN IN THE FORMING OF A WATER STORAGE DISTRICT IF SHORT
TERM LESSEES WHOSE FORTUNES WERE NOT IN THE LONG RUN TIED TO THE LAND
WERE TO HAVE A MAJOR VOTE IN THE AFFAIRS OF THE DISTRICT. 

THE ADMINISTRATION OF A VOTING SYSTEM WHICH ALLOWED SHORT-TERM
LESSEES TO VOTE COULD ALSO POSE SIGNIFICANT DIFFICULTIES.  APPARENTLY,
ASSESSMENT ROLLS AS WELL AS STATE AND FEDERAL LAND LISTS ARE USED BY
ELECTION BOARDS IN DETERMINING THE QUALIFICATIONS OF THE VOTERS. 
CALIF. WATER CODE SEC. 41016.  SUCH LISTS, OBVIOUSLY, WOULD NOT
ORDINARILY DISCLOSE EITHER LONG- OR SHORT-TERM LEASEHOLDS.  WHILE
REFERENCE COULD BE MADE TO APPROPRIATE CONVEYANCING RECORDS TO
DETERMINE THE EXISTENCE OF LEASES WHICH HAD BEEN RECORDED, LEASES FOR
TERMS LESS THAN ONE YEAR NEED NOT BE RECORDED UNDER CALIFORNIA LAW IN
ORDER TO PRESERVE THE RIGHT OF THE LESSEE.  CALIF. CIVIL CODE, SEC.
1214. 

FINALLY, WE NOTE THAT CALIFORNIA HAS NOT LEFT THE LESSEE WITHOUT
REMEDY FOR HIS DISENFRANCHISED STATE.  SECTIONS 41002 AND 41005 OF THE
CALIFORNIA WATER CODE PROVIDE FOR VOTING IN THE GENERAL ELECTION BY
PROXY.  TO THE EXTENT THAT A LESSEE ENTERING INTO A LEASE OF
SUBSTANTIAL DURATION, THEREBY LIKENING HIS STATUS MORE TO THAT OF A
LANDOWNER, FEELS THAT THE RIGHT TO VOTE IN THE ELECTION OF DIRECTORS OF
THE DISTRICT IS OF SUFFICIENT IMPORT TO HIM, HE MAY BARGAIN FOR THAT
RIGHT AT THE TIME HE NEGOTIATES HIS LEASE.  AND THE LONGER THE TERM OF
THE LEASE, AND THE MORE THE INTEREST OF THE LESSEE BECOMES AKIN TO THAT
OF THE LANDOWNER, PRESUMABLY THE MORE WILLING THE LESSOR WILL BE TO
ASSIGN HIS RIGHT.  JUST AS THE LESSEE MAY BY CONTRACT BE REQUIRED TO
REIMBURSE THE LESSOR FOR THE DISTRICT ASSESSMENTS SO HE MAY BY CONTRACT
ACQUIRE THE RIGHT TO VOTE FOR DISTRICT DIRECTORS. 

UNDER THESE CIRCUMSTANCES, THE EXCLUSION OF LESSEES FROM VOTING IN
GENERAL ELECTIONS FOR THE DIRECTORS OF THE DISTRICT DOES NOT VIOLATE
THE EQUAL PROTECTION CLAUSE. 

        IV 

THE LAST CLAIM BY APPELLANTS IS THAT SEC. 41001, WHICH WEIGHTS THE
VOTE ACCORDING TO ASSESSED VALUATION OF THE LAND, IS UNCONSTITUTIONAL. 
THEY POINT TO THE FACT THAT SEVERAL OF THE SMALLER LANDOWNERS HAVE ONLY
ONE VOTE PER PERSON WHEREAS THE J. G. BOSWELL COMPANY HAS 37,825 VOTES,
AND THEY PLACE RELIANCE ON THE VARIOUS DECISIONS OF THIS COURT HOLDING
THAT WEALTH HAS NO RELATION TO RESIDENT-VOTER QUALIFICATIONS AND THAT
EQUALITY OF VOTING POWER MAY NOT BE EVADED.  SEE, E.G., GRAY V.
SANDERS, 372, U.S. 368(1963); HARPER V. VIRGINIA BOARD OF ELECTIONS,
383 U.S. 663(1966).  APPELLANTS' ARGUMENT IGNORES THE REALITIES OF
WATER STORAGE DISTRICT OPERATION.  SINCE ITS FORMATION IN 1926,
APPELLEE DISTRICT HAS PUT INTO OPERATION FOUR MULTI-MILLION-DOLLAR
PROJECTS.  THE LAST PROJECT INVOLVED THE CONSTRUCTION OF TWO LATERALS
FROM THE BASIN TO THE CALIFORNIA STATE AQUEDUCT AT A CAPITAL COST OF
ABOUT $2,500,000.  THREE SMALL LANDOWNERS HAVING LAND AGGREGATING
SOMEWHAT UNDER FOUR ACRES WITH AN ASSESSED VALUATION OF UNDER $100 WERE
GIVEN ONE VOTE EACH IN THE SPECIAL ELECTION HELD FOR THE APPROVAL OF
THE PROJECT.  THE J. G. BOSWELL COMPANY, WHICH OWNS 61,665.54 ACRES
WITH AN ASSESSED VALUATION OF $3,782,220 WAS ENTITLED TO CAST 37,825
VOTES IN THE ELECTION.  BY THE SAME TOKEN, HOWEVER, THE ASSESSMENT
COMMISSIONERS DETERMINED THAT THE BENEFITS OF THE PROJECT WOULD BE
UNIFORM AS TO ALL OF THE ACRES AFFECTED, AND ASSESSED THE PROJECT
EQUALLY AS TO ALL ACREAGE.  EACH ACRE HAS TO BEAR $13.16 OF COST AND
THE THREE SMALL LANDOWNERS, THEREFORE, MUST PAY A TOTAL OF $46, WHEREAS
THE COMPANY MUST PAY $817,685 FOR ITS PART.  /10/  THUS, AS THE
DISTRICT COURT FOUND, "THE BENEFITS AND BURDENS TO EACH LANDOWNER . . .
ARE IN PROPORTION TO THE ASSESSED VALUE OF THE LAND."  342 F.SUPP. 
144, 146.  WE CANNOT SAY THAT THE CALIFORNIA LEGISLATIVE DECISION TO
PERMIT VOTING IN THE SAME PROPORTION IS NOT RATIONALLY BASED. 

ACCORDINGLY, WE AFFIRM THE JUDGMENT OF THE THREE-JUDGE DISTRICT
COURT AND HOLD THAT THE VOTER QUALIFICATION STATUTES FOR CALIFORNIA
WATER STORAGE DISTRICT ELECTIONS ARE RATIONALLY BASED, AND THEREFORE DO
NOT VIOLATE THE EQUAL PROTECTION CLAUSE. 

              AFFIRMED. 

/0/  MELVIN L. WULF, SANFORD JAY ROSEN, JOEL M. GORA, AND DAVID HALL
FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL. AS AMICI
CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY DENSLOW GREEN
FOR IRRIGATION DISTRICTS ASSOCIATION OF CALIFORNIA, AND BY GEORGE BASYE
FOR CALIFORNIA CENTRAL VALLEYS FLOOD CONTROL ASSOCIATION. 

/1/  THE HISTORY OF THE VAST CENTRAL VALLEY PROJECT IN CALIFORNIA IS
RECOUNTED IN UNITED STATES V. GERLACH LIVE STOCK CO., 339 U.S.
725(1950). 

/2/  4 WATERS AND WATER RIGHTS 345.3 (R. CLARK ED. 1970). 

/3/  THE ACTUAL ADOPTION OF DISTRICT PROJECTS IS LONG AND INVOLVED. 
AFTER A DISTRICT UNDERTAKES A PROJECT, IT MUST BE APPROVED BY THE
CALIFORNIA DEPARTMENT OF WATER RESOURCES.  CALIF. WATER CODE SEC. 42200
ET SEQ. A REPORT AND THE ESTIMATED COST OF THE PROJECT MUST BE
SUBMITTED TO THE CALIFORNIA STATE TREASURER, WHO UNDERTAKES AN
INDEPENDENT INVESTIGATION BEFORE DECLARING THE PROJECT ABANDONED OR
APPROVING THE REPORT.  ID., SEC. 42275 ET SEQ. IF THE REPORT IS
APPROVED, A "SPECIAL ELECTION" IS CALLED.  ID., SEC. 42325 ET SEQ. IN
ORDER FOR THE PROJECT TO BE FINALLY ADOPTED, A MAJORITY OF THE VOTES
AND A MAJORITY OF THE VOTERS MUST APPROVE IT.  ID., SECS. 42355-42550. 

/4/  THERE IS NO EVIDENCE THAT THE APPELLEE DISTRICT ENGAGES IN THE
GENERATION, SALE, OR DISTRIBUTION OF HYDROELECTRIC POWER. 

/5/  CALIF. WATER CODE SEC. 41000 PROVIDES: 

"ONLY THE HOLDERS OF TITLE TO LAND ARE ENTITLED TO VOTE AT A GENERAL
ELECTION." 

/6/  CALIF WATER CODE SEC. 41001 PROVIDES: 

"EACH VOTER MAY VOTE IN EACH PRECINCT IN WHICH ANY OF THE LAND OWNED
BY HIM IS SITUATED AND MAY CAST ONE VOTE FOR EACH ONE HUNDRED DOLLARS
($100), OR FRACTION THEREOF, WORTH OF HIS LAND, EXCLUSIVE OF
IMPROVEMENTS, MINERALS, AND MINERAL RIGHTS THEREIN, IN THE PRECINCT." 

/7/  THE BOARD HAS THE POWER TO EMPLOY AND DISCHARGE PERSONS ON A
REGULAR STAFF AND TO CONTRACT FOR THE CONSTRUCTION OF DISTRICT
PROJECTS.  CALIF. WATER CODE SEC. 43152.  IT CAN CONDEMN PRIVATE
PROPERTY FOR USE IN SUCH PROJECTS, ID., SECS. 43530-43533, AND MAY
COOPERATE (INCLUDING CONTRACT) WITH OTHER AGENCIES, STATE AND FEDERAL. 
ID., SEC. 43151.  BOTH GENERAL OBLIGATION BONDS AND INTEREST-BEARING
WARRANTS MAY BE AUTHORIZED.  ID., SECS. 44900-45900. 

/8/  APPELLANTS STRONGLY URGE THAT DISTRICTS HAVE THE POWER TO, AND
DO, ENGAGE IN FLOOD CONTROL ACTIVITIES.  THE INTEREST OF SUCH
ACTIVITIES TO RESIDENTS IS SAID TO BE OBVIOUS SINCE HOUSES MAY BE
DESTROYED AND, AS IN THE CASE OF L APPELLANT ELLISON, JOBS MAY
DISAPPEAR.  BUT CALIF. WATER CODE SEC. 43151 PROVIDES THAT ANY
AGREEMENT ENTERED INTO WITH THE STATE OR THE UNITED STATES MUST BE "FOR
A PURPOSE APPERTAINING TO OR BENEFICIAL TO THE PROJECT OF THE
DISTRICT.  . . . " AND THE STATUTE WHICH ASSERTEDLY GIVES SUPPORT TO
THE FLOOD CONTROL ACTIVITIES, ID., SEC. 44000, SIMPLY STATES THAT A
DISTRICT "MAY COOPERATE AND CONTRACT WITH THE STATE . . . OR THE UNITED
STATES" FOR THE PURPOSE OF "FLOOD CONTROL."  ID., SEC. 44001.  THUS,
ANY FLOOD CONTROL ACTIVITIES ARE INCIDENT TO THE EXERCISE OF THE
DISTRICT'S PRIMARY FUNCTIONS OF WATER STORAGE AND DISTRIBUTION.     /9/
APPELLANTS POINT OUT THAT SINCE THE FLOOD OF 1969, THE DISTRICT HAS
RECEIVED ABOUT $250,000 IN FLOOD RELIEF FUNDS FROM THE FEDERAL
GOVERNMENT AND THAT THE RESIDENTS, LIKE OTHER AMERICAN CITIZENS, HAVE
PAID THEIR SHARE OF THAT MONEY AND ARE THEREFORE ENTITLED TO VOTE.  CF.
PHOENIX V. KOLODZIEJSKI, 399 U.S. 204(1970).  BUT THEIR STATUS AS
DISTRICT RESIDENTS BEARS NO MORE RELATION TO THE FLOOD RELIEF MONEY
THAN THAT OF ANY OTHER UNITED STATES CITIZEN AND WOULD SEEM TO PROVIDE
NO MORE COMPELLING REASON FOR GRANTING SUCH RESIDENTS THE RIGHT TO VOTE
THAN THE CITIZENRY AT LARGE. 

/10/  AS WAS POINTED OUT IN N. 3, SMALL LANDOWNERS ARE PROTECTED
FROM CRIPPLING ASSESSMENTS RESULTING FROM DISTRICT PROJECTS BY THE DUAL
VOTE WHICH MUST BE TAKEN IN ORDER TO APPROVE A PROJECT.  NOT ONLY MUST
A MAJORITY OF THE VOTES BE CAST FOR APPROVAL, BUT ALSO A MAJORITY OF
THE VOTERS MUST APPROVE.  IN THIS CASE, ABOUT 189 LANDOWNERS CONSTITUTE
A MAJORITY AND 189 OF THE SMALLEST LANDOWNERS IN THE DISTRICT HAVE ONLY
2.34% OF THE LAND. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

THE VICES OF THIS CASE ARE FOURFOLD. 

FIRST.  LESSEES OF FARMLANDS, THOUGH RESIDENTS OF THE DISTRICT, ARE
NOT GIVEN THE FRANCHISE. 

SECOND.  RESIDENTS WHO OWN NO AGRICULTURAL LANDS BUT LIVE IN THE
DISTRICT AND FACE ALL THE PERILS OF FLOOD WHICH THE DISTRICT IS
SUPPOSED TO CONTROL ARE DISFRANCHISED. 

THIRD.  ONLY AGRICULTURAL LANDOWNERS ARE ENTITLED TO VOTE AND THEIR
VOTE IS WEIGHTED, ONE VOTE FOR EACH ONE HUNDRED DOLLARS OF ASSESSED
VALUATION AS PROVIDED IN SEC. 41001 OF THE CALIFORNIA WATER CODE. 

FOURTH.  THE CORPORATE VOTER IS PUT IN THE SADDLE. 

THERE ARE 189 LANDOWNERS WHO OWN UP TO 80 ACRES EACH.  THESE 189
REPRESENT 2.34% OF THE AGRICULTURAL ACREAGE OF THE DISTRICT.  THERE ARE
193,000 ACRES IN THE DISTRICT.  PETITIONER SALYER LAND CO. IS ONE LARGE
OPERATOR, WEST LAKE FARMS AND SOUTH LAKE FARMS ARE ALSO LARGE
OPERATORS.  THE LARGEST IS J. G. BOSWELL CO. THESE FOUR FARM ALMOST 85%
OF ALL THE LAND IN THE DISTRICT.  OF THESE, J. G. BOSWELL CO. COMMANDS
THE GREATEST NUMBER OF VOTES, 37,825, WHICH ARE ENOUGH TO GIVE IT A
MAJORITY OF THE BOARD OF DIRECTORS.  AS A RESULT, IT IS PERMANENTLY IN
THE SADDLE.  ALMOST ALL OF THE 77 RESIDENTS OF THE DISTRICT ARE
DISFRANCHISED.  THE HOLD OF J. G. BOSWELL CO. IS SO STRONG THAT THERE
HAS BEEN NO ELECTION SINCE 1947, MAKING LITTLE POINT OF THE PROVISION
IN SEC. 41300 OF THE CALIFORNIA WATER CODE FOR AN ELECTION EVERY OTHER
YEAR. 

THE RESULT HAS BEEN CALAMITOUS TO SOME WHO, THOUGH LANDLESS, HAVE
EVEN MORE TO FEAR FROM FLOODS THAN THE EPHEMERAL CORPORATION. 

        I 

IN PHOENIX V. KOLODZIEJSKI, 399 U.S. 204, 209, WE SET OUT THE
FOLLOWING TEST FOR THE STATE ELECTION SCHEMES WHICH SELECTIVELY
DISTRIBUTE THE FRANCHISE: 

"PRESUMPTIVELY, WHEN ALL CITIZENS ARE AFFECTED IN IMPORTANT WAYS BY
A GOVERNMENTAL DECISION SUBJECT TO A REFERENDUM, THE CONSTITUTION DOES
NOT PERMIT WEIGHTED VOTING OR THE EXCLUSION OF OTHERWISE QUALIFIED
CITIZENS FROM THE FRANCHISE." 

PROVISIONS AUTHORIZING A SELECTIVE FRANCHISE ARE DISFAVORED, BECAUSE
THEY "ALWAYS POSE THE DANGER OF DENYING SOME CITIZENS ANY EFFECTIVE
VOICE IN THE GOVERNMENTAL AFFAIRS WHICH SUBSTANTIALLY AFFECT THEIR
LIVES."  KRAMER V. UNION SCHOOL DISTRICT, 395 U.S. 621, 627.  IN ORDER
TO OVERCOME THIS STRONG PRESUMPTION, IT HAD TO BE SHOWN UP TO NOW (1)
THAT THERE IS A COMPELLING STATE INTEREST FOR THE EXCLUSION, AND (2)
THAT THE EXCLUSIONS ARE NECESSARY TO PROMOTE THE STATE'S ARTICULATED
GOAL.  PHOENIX V. KOLODZIEJSKI, SUPRA; CIPRIANO V. CITY OF HOUMA, 395
U.S. 701; KRAMER V. UNION SCHOOL DISTRICT, SUPRA.  SEE ALSO POLICE JURY
OF VERMILLION PARISH V. HEBERT, 404 U.S. 807; STEWART V. PARISH SCHOOL
BOARD OF ST. CHARLES, 310 F.SUPP.  1172, AFF'D, 400 U.S. 884.  IN MY
VIEW, APPELLANTS IN THIS CASE HAVE MADE A SUFFICIENT SHOWING TO INVOKE
THE ABOVE PRINCIPLES, AND THE PRESUMPTION THUS ESTABLISHED HAS NOT BEEN
OVERCOME. 

ASSUMING, ARGUENDO, THAT A STATE MAY, IN SOME CIRCUMSTANCES, LIMIT
THE FRANCHISE TO THAT PORTION OF THE ELECTORATE "PRIMARILY AFFECTED" BY
THE OUTCOME OF AN ELECTION, KRAMER V. UNION SCHOOL DISTRICT, SUPRA, AT
632, THE LIMITATION MAY ONLY BE UPHELD IF IT IS DEMONSTRATED THAT "ALL
THOSE EXCLUDED ARE IN FACT SUBSTANTIALLY LESS INTERESTED OR AFFECTED
THAN THOSE THE (FRANCHISE) INCLUDES."  IBID.  THE MAJORITY CONCLUDES
THAT "THERE IS NO WAY THAT THE ECONOMIC BURDENS OF DISTRICT OPERATIONS
CAN FALL ON RESIDENTS QUA RESIDENTS, AND THE OPERATIONS OF THE
DISTRICTS PRIMARILY AFFECT THE LAND WITHIN THEIR BOUNDARIES." 

BUT, WITH ALL RESPECT, THAT IS A GREAT DISTORTION.  IN THESE ARID
AREAS OF OUR NATION A WATER DISTRICT SEEKS WATER IN TIME OF DROUGHT AND
FIGHTS IT IN TIME OF FLOOD.  ONE OF THE FUNCTIONS OF WATER DISTRICTS IN
CALIFORNIA IS TO MANAGE FLOOD CONTROL.  THAT IS GENERAL CALIFORNIA
STATUTORY POLICY.  /1/  IT IS EXPRESSLY STATED IN THE WATER CODE THAT
GOVERNS WATER DISTRICTS.  /2/  THE CALIFORNIA SUPREME COURT RULED SOME
YEARS BACK THAT FLOOD CONTROL AND IRRIGATION ARE DIFFERENT BUT
COMPLEMENTARY ASPECTS OF ONE PROBLEM.  /3/ 

FROM ITS INCEPTION IN 1926, THIS DISTRICT HAS HAD REPEATED FLOOD
CONTROL PROBLEMS.  FOUR RIVERS, KINGS, KERN, TULE, AND KAWEAH, ENTER
TULARE LAKE BASIN.  SOUTH OF TULARE LAKE BASIN IS BUENA VISTA LAKE.  IN
THE PAST, BUENA VISTA HAS BEEN USED TO PROTECT TULARE LAKE BASIN BY
STORING KERN RIVER WATER IN THE FORMER.  THAT IS HOW TULARE LAKE BASIN
WAS PROTECTED FROM MENACING FLOODS IN 1952.  BUT THAT WAS NOT DONE IN
THE GREAT 1969 FLOOD, THE RESULT BEING THAT 88,000 OF THE 193,000 ACRES
IN RESPONDENT DISTRICT WERE FLOODED.  THE BOARD OF THE RESPONDENT
DISTRICT-- DOMINATED BY THE BIG LANDOWNER J. G. BOSWELL CO.-- VOTED 6-4
TO TABLE THE MOTION THAT WOULD PUT INTO OPERATION THE MACHINERY TO
DIVERT THE FLOOD WATERS TO THE BUENA VISTA LAKE.  THE REASON IS THAT J.
G. BOSWELL CO., HAD A LONG-TERM AGRICULTURAL LEASE IN THE BUENA VISTA
LAKE BASIN AND FLOODING IT WOULD HAVE INTERFERED WITH THE PLANTING,
GROWING, AND HARVESTING OF CROPS THE NEXT SEASON. 

THE RESULT WAS THAT WATER IN THE TULARE LAKE BASIN ROSE TO 192.5
USGS DATUM.  ELLISON, ONE OF THE APPELLANTS WHO LIVES IN THE DISTRICT,
IS NOT AN AGRICULTURAL LANDOWNER.  BUT HIS RESIDENCE WAS 15 1/2 FEET
BELOW THE WATER LEVEL OF THE CREST OF THE FLOOD IN 1969. 

THE APPELLEE DISTRICT HAS LARGE LEVEES; AND IF THEY ARE BROKEN,
DAMAGE TO HOUSES AND LOSS OF LIFE ARE IMMINENT. 

LANDOWNERS-- LARGE OR SMALL, RESIDENT OR NONRESIDENT LESSEES OR
LANDLORDS, SHARECROPPERS /4/  OR OWNERS-- ALL SHOULD HAVE A SAY.  BUT
IRRIGATION, WATER STORAGE, THE BUILDING OF LEVEES, AND FLOOD CONTROL,
IMPLICATE THE ENTIRE COMMUNITY.  ALL RESIDENTS OF THE DISTRICT MUST BE
GRANTED THE FRANCHISE. 

THIS CASE, AS I WILL DISCUSS BELOW, INVOLVES THE PERFORMANCE OF
VITAL AND IMPORTANT GOVERNMENTAL FUNCTIONS BY WATER DISTRICTS CLOTHED
WITH MUCH OF THE PARAPHERNALIA OF GOVERNMENT.  THE WEIGHTING OF VOTES
ACCORDING TO ONE'S WEALTH IS HOSTILE TO OUR SYSTEM OF GOVERNMENT.  SEE
STEWART V. PARISH SCHOOL BOARD OF ST. CHARLES, 310 F.SUPP.  1172,
AFF'D, 400 U.S. 884.  AS A NONLANDOWNING BACHELOR WAS HELD TO BE
ENTITLED TO VOTE ON MATTERS AFFECTING EDUCATION, KRAMER V. UNION SCHOOL
DISTRICT, SUPRA, SO ALL THE PROSPECTIVE VICTIMS OF MISMANAGED FLOOD
CONTROL PROJECTS SHOULD BE ENTITLED TO VOTE IN WATER DISTRICT
ELECTIONS, WHETHER THEY BE RESIDENT NONLANDOWNERS, RESIDENT OR
NONRESIDENT LESSEES, AND WHETHER THEY OWN 10 ACRES OF 10,000 ACRES. 
MOREOVER, THEIR VOTES SHOULD BE EQUAL REGARDLESS OF THE VALUE OF THEIR
HOLDINGS, FOR WHEN IT COMES TO PERFORMANCE OF GOVERNMENTAL FUNCTIONS
ALL ENTER THE POLLS ON AN EQUAL BASIS. 

THE MAJORITY, HOWEVER, WOULD DISTINGUISH THE WATER STORAGE DISTRICT
FROM "UNITS OF LOCAL GOVERNMENT HAVING GENERAL GOVERNMENTAL POWERS OVER
THE ENTIRE GEOGRAPHIC AREA SERVED BY THE BODY," AVERY V. MIDLAND
COUNTY, 390 U.S. 474, 485, AND FIT THIS CASE WITHIN THE EXCEPTION
CONTEMPLATED FOR "A SPECIAL-PURPOSE UNIT OF GOVERNMENT ASSIGNED THE
PERFORMANCE OF FUNCTIONS AFFECTING DEFINABLE GROUPS OF CONSTITUENTS
MORE THAN OTHER CONSTITUENTS."  ID., AT 483-484.  THE AVERY TEST WAS
SIGNIFICANTLY LIBERALIZED IN HADLEY V. JUNIOR COLLEGE DISTRICT, 397
U.S. 50.  AT ISSUE WAS AN ELECTION FOR TRUSTEES OF A SPECIAL-PURPOSE
DISTRICT WHICH RAN A JUNIOR COLLEGE.  WE SAID, 

"(SINCE THE TRUSTEES CAN LEVY AND COLLECT TAXES, ISSUE BONDS WITH
CERTAIN RESTRICTIONS, HIRE AND FIRE TEACHERS, MAKE CONTRACTS, COLLECT
FEES, SUPERVISE AND DISCIPLINE STUDENTS, PASS ON PETITIONS TO ANNEX
SCHOOL DISTRICTS, ACQUIRE PROPERTY BY CONDEMNATION, AND IN GENERAL
MANAGE THE OPERATIONS OF THE JUNIOR COLLEGE, THEIR POWERS ARE
EQUIVALENT, FOR APPORTIONMENT PURPOSES, TO THOSE EXERCISED BY THE
COUNTY COMMISSIONERS IN AVERY.  . . . (THESE POWERS, WHILE NOT FULLY AS
BROAD AS THOSE OF THE MIDLAND COUNTY COMMISSIONERS, CERTAINLY SHOW THAT
THE TRUSTEES PERFORM IMPORTANT GOVERNMENTAL FUNCTIONS . . . AND HAVE
SUFFICIENT IMPACT THROUGHOUT THE DISTRICT TO JUSTIFY THE CONCLUSION
THAT THE PRINCIPLE WHICH WE APPLIED IN AVERY SHOULD ALSO BE APPLIED
HERE."  ID., AT 53-54.  MEASURED BY THE HADLEY TEST, THE TULARE LAKE
BASIN WATER STORAGE DISTRICT SURELY PERFORMS "IMPORTANT GOVERNMENTAL
FUNCTIONS" WHICH "HAVE SUFFICIENT IMPACT THROUGHOUT THE DISTRICT" TO
JUSTIFY THE APPLICATION OF THE AVERY PRINCIPLE. 

WATER STORAGE DISTRICTS IN CALIFORNIA ARE CLASSIFIED AS IRRIGATION,
RECLAMATION, OR DRAINAGE DISTRICTS.  /5/  SUCH STATE AGENCIES "ARE
CONSIDERED EXCLUSIVELY GOVERNMENTAL," AND THEIR PROPERTY IS "HELD ONLY
FOR GOVERNMENTAL PURPOSE," NOT IN THE "PROPRIETARY SENSE."  /6/  THEY
ARE A "PUBLIC ENTITY," JUST AS "ANY OTHER POLITICAL SUBDIVISION."  /7/
THAT IS MADE EXPLICIT IN VARIOUS WAYS.  THE WATER CODE OF CALIFORNIA
STATES THAT "(ALL WATERS AND WATER RIGHTS" OF THE STATE "WITHIN THE
DISTRICT ARE GIVEN, DEDICATED, AND SET APART FOR THE USES AND PURPOSES
OF THE DISTRICT."  /8/  DIRECTORS OF THE DISTRICT ARE "PUBLIC OFFICERS
OF THE STATE."  /9/  THE DISTRICT POSSESSES THE POWER OF EMINENT
DOMAIN.  /10/  ITS WORKS MAY NOT BE TAXED.  /11/  IT CARRIES A
GOVERNMENTAL IMMUNITY AGAINST SUIT.  /12/  A DISTRICT HAS POWERS THAT
RELATE TO IRRIGATION, STORAGE OF WATER, DRAINAGE, FLOOD CONTROL, AND
GENERATION OF HYDROELECTRIC ENERGY.  /13/ 

WHATEVER MAY BE THE PARAMETERS OF THE EXCEPTION ALLUDED TO IN AVERY
AND HADLEY, I CANNOT CONCLUDE THAT THIS WATER STORAGE DISTRICT ESCAPES
THE CONSTITUTIONAL RESTRAINTS RELATIVE TO A FRANCHISE WITHIN A
GOVERNMENTAL UNIT. 

  II 

WHEN WE DECIDED REYNOLDS V. SIMS, 377 U.S. 533, AND DISCUSSED THE
PROBLEMS OF MALAPPORTIONMENT WE THOUGHT AND TALKED ABOUT PEOPLE-- OF
POPULATION, OF THE CONSTITUTIONAL RIGHT OF "QUALIFIED CITIZENS TO
VOTE," (ID., AT 554) OF "THE RIGHT OF SUFFRAGE," (ID., AT 555) OF THE
COMPARISON OF "ONE MAN'S VOTE" TO THAT OF ANOTHER MAN'S VOTE.  ID., AT
559.  WE SAID: 

"LEGISLATORS REPRESENT PEOPLE, NOT TREES OR ACRES.  LEGISLATORS

  ARE ELECTED BY VOTERS, NOT FARMS OR CITIES OR ECONOMIC

  INTERESTS.  AS LONG AS OURS IS A REPRESENTATIVE FORM OF

  GOVERNMENT, AND OUR LEGISLATURES ARE THOSE INSTRUMENTS OF

  GOVERNMENT ELECTED DIRECTLY BY AND DIRECTLY REPRESENTATIVE OF THE

  PEOPLE, THE RIGHT TO ELECT LEGISLATORS IN A FREE AND UNIMPAIRED

  FASHION IS A BEDROCK OF OUR POLITICAL SYSTEM."  ID., AT 562. 

IT IS GROTESQUE TO THINK OF CORPORATIONS VOTING WITH THE FRAMEWORK
OF POLITICAL REPRESENTATION OF PEOPLE.  CORPORATIONS WERE HELD TO BE
"PERSONS" FOR PURPOSES BOTH OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT /14/  AND OF THE EQUAL PROTECTION CLAUSE.  /15/  YET, IT IS
UNTHINKABLE IN TERMS OF THE AMERICAN TRADITION THAT CORPORATIONS SHOULD
BE ADMITTED TO THE FRANCHISE.  COULD A STATE ALLOT VOTING RIGHTS TO ITS
CORPORATIONS, WEIGHTING EACH VOTE ACCORDING TO THE WEALTH OF THE
CORPORATION?  OR COULD IT FOLLOW THE RULE OF ONE CORPORATION, ONE
VOTE? 

IT WOULD BE A RADICAL AND REVOLUTIONARY STEP TO TAKE, AS IT WOULD
CHANGE OUR WHOLE CONCEPT OF THE FRANCHISE.  CALIFORNIA TAKES PART OF
THAT STEP HERE BY ALLOWING CORPORATIONS TO VOTE IN THESE WATER DISTRICT
MATTERS /16/  THAT ENTAIL PERFORMANCE OF VITAL GOVERNMENTAL FUNCTIONS. 
ONE CORPORATION CAN OUTVOTE 77 INDIVIDUALS IN THIS DISTRICT.  FOUR
CORPORATIONS CAN EXERCISE THESE GOVERNMENTAL POWERS AS THEY CHOOSE,
LEAVING EVERY INDIVIDUAL INHABITANT WITH A WEAK, INEFFECTIVE VOICE. 
THE RESULT IS A CORPORATE POLITICAL KINGDOM UNDREAMED OF BY THOSE WHO
WROTE OUR CONSTITUTION. 

/1/  CALIF. STAT. 1921, C. 914, SEC. 58. 

/2/  CALIF. WATER CODE SEC. 44001. 

/3/  TARPEY V. MCCLURE, 190 CAL. 593, 213 P. 983. 

/4/  SINCE 1938, SHARECROPPERS HAVE BEEN INCLUDED IN FEDERAL
REGULATIONS DEFINING "FARMERS" WHO ARE ENTITLED TO VOTE ON REFERENDA
CONCERNING MARKETING QUOTAS UNDER THE AGRICULTURAL ADJUSTMENT ACT. 

"FARMERS ENGAGED IN THE PRODUCTION OF A COMMODITY.  FOR PURPOSES OF
REFERENDA WITH RESPECT TO MARKETING QUOTAS FOR TOBACCO, EXTRA LONG
STAPLE COTTON, RICE AND PEANUTS THE PHRASE 'FARMERS ENGAGED IN THE
PRODUCTION OF A COMMODITY' INCLUDES ANY PERSON WHO IS ENTITLED TO SHARE
IN A CROP OF THE COMMODITY, OR THE PROCEEDS THEREOF BECAUSE HE SHARES
IN THE RISKS OF PRODUCTION OF THE CROP AS AN OWNER, LANDLORD, TENANT,
OR SHARECROPPER (LANDLORD WHOSE RETURN FROM THE CROP IS FIXED
REGARDLESS OF THE AMOUNT OF THE CROP PRODUCED IS EXCLUDED) ON A FARM ON
WHICH SUCH CROP IS PLANTED IN A WORKMANLIKE MANNER FOR HARVEST:
PROVIDED, THAT ANY FAILURE TO HARVEST THE CROP BECAUSE OF CONDITIONS
BEYOND THE CONTROL OF SUCH PERSON SHALL NOT AFFECT HIS STATUS AS A
FARMER ENGAGED IN THE PRODUCTION OF THE CROP.  IN ADDITION, THE PHRASE
'FARMERS ENGAGED IN THE PRODUCTION OF A COMMODITY' ALSO INCLUDES EACH
PERSON WHO IT IS DETERMINED WOULD HAVE HAD AN INTEREST AS A PRODUCER IN
THE COMMODITY ON A FARM FOR WHICH A FARM ALLOTMENT FOR THE CROP OF THE
COMMODITY WAS ESTABLISHED AND NO ACREAGE OF THE CROP WAS PLANTED BUT AN
ACREAGE OF THE CROP WAS REGARDED AS PLANTED FOR HISTORY ACREAGE
PURPOSES UNDER THE APPLICABLE COMMODITY REGULATIONS."  7 CFR 717.3(B). 
/5/  CALIF. WATER CODE SEC. 39060.     /6/  GLENN-COLUSA IRRIGATION
DISTRICT V. OHRT, 31 CAL.SPP.2D 619, 623, 88 P.2D 763, 765. 

/7/  CALIF. GOVT. CODE SEC. 811.2. 

/8/  SECTION 43158.  SEE ALSO ID., SEC. 39061. 

/9/  IN RE MADERA IRRIGATION DISTRICT, 92 CAL. 296, 322, 28 P. 272,
278. 

/10/  CALIF. WATER CODE SEC. 43530. 

/11/  ID., SEC. 43508. 

/12/  CALIF. GOVT. CODE SECS. 811.2, 815. 

/13/  CALIF. WATER CODE SECS. 42200, 43000, 43025, 44001. 

/14/  MINNEAPOLIS & ST. LOUIS R. CO. V. BECKWITH, 129 U.S. 26, 28. 

/15/  PEMBINA CONSOLIDATED SILVER MINING & MILLING CO. V.
PENNSYLVANIA, 125 U.S. 181, 188-189; SANTA CLARA COUNTY V. SOUTHERN
PACIFIC R. CO., 118 U.S. 394, 397. 

/16/  CALIF. WATER CODE SEC. 41004. 

THOMAS KEISTER GREER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEFS WAS C. RAY ROBINSON. 

ROBERT M. NEWELL ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS ERNEST M. CLARK, JR.  /0/
..END :




ASSOCIATED ENTERPRISES, INC. V. TOLTEC DISTRICT, 410 U.S. 743 


       ASSOCIATED ENTERPRISES, INC., ET AL. V. TOLTEC WATERSHED

           IMPROVEMENT DISTRICT

        APPEAL FROM THE SUPREME COURT OF WYOMING

        NO. 71-1069.  ARGUED JANUARY 8, 1973-- DECIDED MARCH 20,

           1973 


LIMITATION OF THE FRANCHISE TO PROPERTY OWNERS IN THE CREATION AND
MAINTENANCE OF A WYOMING WATERSHED IMPROVEMENT DISTRICT, FOR WHICH THEY
BEAR THE PRIMARY BURDEN AND SHARE THE BENEFITS, HELD NOT VIOLATIVE OF
EQUAL PROTECTION REQUIREMENTS.  SALYER LAND CO. V. TULARE WATER
DISTRICT, ANTE, P. 719. 

490 P.2D 1069, AFFIRMED. 

PER CURIAM. 

IN THIS CASE, WE ARE CONFRONTED WITH AN ISSUE SIMILAR TO THE ONE
DETERMINED TODAY IN SALYER LAND CO. V. TULARE WATER DISTRICT, ANTE, P.
719.  APPELLEE TOLTEC WATERSHED IMPROVEMENT DISTRICT WAS ESTABLISHED
AFTER REFERENDUM HELD PURSUANT TO WYOMING'S WATERSHED IMPROVEMENT
DISTRICT ACT, WYO. STAT. ANN. SECS. 41-354.1 TO 41-354.26 (SUPP.
1971).  AFTER FORMATION, APPELLEE SOUGHT A RIGHT OF ENTRY ONTO LANDS
OWNED BY APPELLANT ASSOCIATED ENTERPRISES, INC., AND LEASED BY JOHNSTON
FUEL LINERS, FOR THE PURPOSE OF CARRYING OUT STUDIES TO DETERMINE THE
FEASIBILITY OF CONSTRUCTING A DAM AND RESERVOIR.  WHEN ASSOCIATED
ENTERPRISES RESISTED, THE DISTRICT SOUGHT TO ENFORCE ITS RIGHT IN STATE
COURT.  ARGUING THAT THE STATUTES AUTHORIZING THE REFERENDUM VIOLATED
THE EQUAL PROTECTION CLAUSE SINCE UNDER SEC. 41-354.9 ONLY LANDOWNERS
ARE ENTITLED TO VOTE AND UNDER SEC. 41-354.10 A WATERSHED IMPROVEMENT
DISTRICT CANNOT BE DETERMINED TO BE ADMINISTRATIVELY PRACTICABLE AND
FEASIBLE UNLESS A MAJORITY OF THE VOTES CAST, REPRESENTING A MAJORITY
OF THE ACREAGE IN THE DISTRICT, FAVOR ITS CREATION, APPELLANTS
MAINTAINED THAT THE DISTRICT WAS ILLEGALLY FORMED.  THE TRIAL COURT
AGREED THAT HAD THE DISTRICT BEEN FORMED IN VIOLATION OF THE EQUAL
PROTECTION CLAUSE, APPELLANTS WOULD HAVE A GOOD DEFENSE UNDER STATE LAW
TO THE ASSERTED RIGHT OF ENTRY, BUT IT HELD AGAINST THEM ON THE
MERITS.  THE WYOMING SUPREME COURT AFFIRMED.  490 P.2D 1069. 

APPELLANTS URGE HERE THAT THE PROVISIONS ENTITLING ONLY LANDOWNERS
TO VOTE AND WEIGHTING THE VOTE ACCORDING TO ACREAGE VIOLATE THE EQUAL
PROTECTION CLAUSE.  LIKE THE CALIFORNIA WATER STORAGE DISTRICT, THE
WYOMING WATERSHED DISTRICT IS A GOVERNMENTAL UNIT OF SPECIAL OR LIMITED
PURPOSE WHOSE ACTIVITIES HAVE A DISPROPORTIONATE EFFECT ON LANDOWNERS
WITHIN THE DISTRICT.  THE DISTRICT'S OPERATIONS ARE CONDUCTED THROUGH
PROJECTS AND THE LAND IS ASSESSED FOR ANY BENEFITS RECEIVED.  WYO.
STAT. ANN. SECS. 41-354.17, 41-354.21, 41-354.22.  SUCH ASSESSMENTS
CONSTITUTE A LIEN ON THE LAND UNTIL PAID.  ID., SEC. 41-354.23. 

WE CANNOT AGREE WITH THE DISSENT'S INTIMATION THAT THE WYOMING
LEGISLATURE HAS IN ANY SENSE ABDICATED TO A WEALTHY FEW THE ULTIMATE
AUTHORITY OVER LAND MANAGEMENT IN THAT STATE.  THE STATUTE AUTHORIZING
THE ESTABLISHMENT OF IMPROVEMENT DISTRICTS WAS ENACTED BY A LEGISLATURE
IN WHICH ALL OF THE STATE'S ELECTORS HAVE THE UNQUESTIONED RIGHT TO BE
FAIRLY REPRESENTED.  UNDER THE ACT, DISTRICTS MAY BE FORMED ONLY AS
SUBDIVISIONS OF SOIL AND WATER CONSERVATION DISTRICTS.  ID., SEC. 41
354.3.  AND A PRECONDITION TO THEIR FORMATION REFERENDUM IS A
DETERMINATION BY A BOARD OF SUPERVISORS OF THE AFFECTED CONSERVATION
DISTRICT, POPULARLY ELECTED BY BOTH OCCUPIERS AND OWNERS OF LAND WITHIN
THE DISTRICT, THAT THE WATERSHED IMPROVEMENT DISTRICT IS BOTH NECESSARY
AND ADMINISTRATIVELY PRACTICABLE.  ID., SECS. 41-354.7, 41-354.8;
WYOMING CONSERVATION DISTRICTS LAW, WYO. STAT. ANN. SEC. 11-234 ET
SEQ., SEC. 11-243 (SUPP. 1971).  AS IN SALYER, SUPRA, WE HOLD THAT THE
STATE COULD RATIONALLY CONCLUDE THAT LANDOWNERS ARE PRIMARILY BURDENED
AND BENEFITED BY THE ESTABLISHMENT AND OPERATION OF WATERSHED DISTRICTS
AND THAT IT MAY CONDITION THE VOTE ACCORDINGLY.  THE JUDGMENT APPEALED
FROM IS, THEREFORE,

           AFFIRMED. 

/1/  MELVIN L. WULF, SANFORD JAY ROSEN, JOEL M. GORA, AND DAVID HALL
FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL. AS AMICI
CURIAE URGING REVERSAL. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

        I 

FOR THE REASONS SET FORTH IN MY DISSENTING OPINION IN SALYER LAND
CO. V. TULARE WATER DISTRICT, ANTE, P. 735, I CANNOT AGREE THAT THE
VOTING PROVISIONS OF WYOMING'S WATERSHED IMPROVEMENT DISTRICT ACT PASS
MUSTER UNDER THE EQUAL PROTECTION CLAUSE.  ACCORDINGLY, I DISSENT. 

AT ISSUE IN WYOMING'S WATERSHED IMPROVEMENT DISTRICT ACT, WYO. STAT.
ANN. SECS. 41-354.1 TO 41-354.26 (SUPP. 1971).  APPELLEE TOLTEC
WATERSHED IMPROVEMENT DISTRICT WAS ESTABLISHED AS A RESULT OF A
REFERENDUM HELD PURSUANT TO THIS ACT, MAY 12, 1969.  /1/ 

THE PURPOSES OF THE WYOMING ACT ARE "TO PROVIDE FOR THE PREVENTION
AND CONTROL OF EROSION, FLOODWATER AND SEDIMENT DAMAGES, AND THE
STORAGE CONSERVATION, DEVELOPMENT, UTILIZATION, AND DISPOSAL OF
WATER."  ID., SEC. 41-354.2.  THESE ARE NOT PURPOSES RELATED ONLY TO
SPECIAL, NARROW INTERESTS OF LANDOWNERS.  AS NOTED IN THE SALYER LAND
CO. CASE, FLOOD CONTROL IS A PURPOSE THAT AFFECTS AT LEAST EVERYONE IN
A WATERSHED DISTRICT, WHETHER HE BE OWNER, LESSEE, OR A RESIDENT NOT
ENGAGED IN FARMING, GRAZING, OR OTHER AGRICULTURAL ACTIVITY. 

IN JUNE 1970, APPELLEE SOUGHT A RIGHT OF ENTRY ONTO LANDS OWNED BY
APPELLANT ASSOCIATED ENTERPRISES, AND LEASED BY APPELLANT JOHNSTON FUEL
LINERS, FOR THE PURPOSE OF CARRYING OUT FOUNDATION STUDIES FOR A DAM
SITE.  WHEN APPELLANT ASSOCIATED ENTERPRISES RESISTED, TOLTEC SOUGHT TO
ENFORCE ITS RIGHT OF ENTRY IN STATE COURT.  THE TRIAL COURT AGREED WITH
APPELLANTS THAT IF TOLTEC HAD BEEN ILLEGALLY FORMED, THEY WOULD HAVE A
GOOD DEFENSE TO THE ASSERTED RIGHT OF ENTRY, BUT HELD AGAINST THEM ON
THE MERITS, DESPITE APPELLANTS' OBJECTIONS THAT THE REFERENDUM WHICH
AUTHORIZED THE CREATION OF THE WATERSHED IMPROVEMENT DISTRICT VIOLATED
THE EQUAL PROTECTION CALUSE, THE FRANCHISE BEING LIMITED TO PROPERTY
OWNERS, AND THE VOTES BEING WEIGHTED BY THE AMOUNT OF PROPERTY OWNED. 
ON APPEAL, THE WYOMING SUPREME COURT AFFIRMED. 

I CONCLUDE THAT THE PRESUMPTION SET OUT IN PHOENIX V. KOLODZIEJSKI,
399 U.S. 204, HAS NOT BEEN OVERCOME, FOR "(PLACING VOTING POWER IN
PROPERTY OWNERS ALONE CAN BE JUSTIFIED ONLY BY SOME OVERRIDING INTEREST
OF THOSE OWNERS THAT THE STATE IS ENTITLED TO RECOGNIZE."  ID., AT
209.  HERE, THE SUGGESTION WAS MADE BELOW THAT PROPERTY OWNERS ARE
THOSE "PRIMARILY CONCERNED" WITH THE AFFAIRS OF THE WATERSHED
DISTRICT.  BUT ASSUMING, ARGUENDO, THAT A STATE MAY, IN SOME
CIRCUMSTANCES, LIMIT THE FRANCHISE TO THAT PORTION OF THE ELECTORATE
"PRIMARILY AFFECTED" BY THE OUTCOME OF AN ELECTION, KRAMER V. UNION
SCHOOL DISTRICT, 395 U.S. 621, 632, THE LIMITATION MAY ONLY BE UPHELD
IF IT IS DEMONSTRATED THAT "ALL THOSE EXCLUDED ARE IN FACT
SUBSTANTIALLY LESS INTERESTED OR AFFECTED THAN THOSE THE (FRANCHISE)
INCLUDES."  IBID. 

OTHER THAN THE BALD ASSERTION BY THE COURT BELOW THAT IT "MAKES
SENSE" TO LIMIT THE FRANCHISE IN WATERSHED DISTRICT REFERENDA TO
PROPERTY OWNERS, THERE IS NOTHING IN THE RECORD TO SUPPORT THE
EXCLUSION.  APPELLANT JOHNSTON IS A LESSEE OF LAND IN THE DISTRICT. 
WHY A LESSEE IS "SUBSTANTIALLY LESS INTERESTED" IN THE CREATION OF A
WATERSHED DISTRICT THAN IS A TITLEHOLDER IS LEFT TO SPECULATION.  /2/
AND MERE SPECULATION IS INSUFFICIENT TO JUSTIFY AN INFRINGEMENT ON THE
RIGHT TO VOTE, A RIGHT WHICH IS "THE ESSENCE OF A DEMOCRATIC SOCIETY." 
REYNOLDS V. SIMS, 377 U.S. 533, 555. 

MOREOVER, WE RECENTLY STATED THAT "A PERCENTAGE REDUCTION OF AN
INDIVIDUAL'S VOTING POWER IN PROPORTION TO THE AMOUNT OF PROPERTY HE
OWNED WOULD BE (CONSTITUTIONALLY) DEFECTIVE.  SEE STEWART V. PARISH
SCHOOL BOARD, 310 F.SUPP.  1172(ED LA.), AFF'D, 400 U.S. 884(1970)." 
GORDON V. LANCE, 403 U.S. 1, 4 N. 1. 

        II 

IT IS ARGUED, HOWEVER, THAT UNLIKE "UNITS OF LOCAL GOVERNMENT HAVING
GENERAL GOVERNMENTAL POWERS OVER THE ENTIRE GEOGRAPHIC AREA SERVED BY
THE BODY," AVERY V. MIDLAND COUNTY, 390 U.S. 474, 485, A WATERSHED
IMPROVEMENT DISTRICT IS "A SPECIAL-PURPOSE UNIT OF GOVERNMENT ASSIGNED
THE PERFORMANCE OF FUNCTIONS AFFECTING DEFINABLE GROUPS OF CONSTITUENTS
MORE THAN OTHER CONSTITUENTS," ID., AT 483-484.  THE COURT BELOW SOUGHT
TO MAKE SUCH AN ANALYSIS. 

THE AVERY TEST, HOWEVER, WAS SIGNIFICANTLY LIBERALIZED IN HADLEY V.
JUNIOR COLLEGE DISTRICT, 397 U.S. 50.  AT ISSUE WAS AN ELECTION FOR
TRUSTEES OF A SPECIAL PURPOSE DISTRICT WHICH RAN A JUNIOR COLLEGE.  WE
SAID, 

"(SINCE THE TRUSTEES CAN LEVY AND COLLECT TAXES, ISSUE BONDS WITH
CERTAIN RESTRICTIONS, HIRE AND FIRE TEACHERS, MAKE CONTRACTS, COLLECT
FEES, SUPERVISE AND DISCIPLINE STUDENTS, PASS ON PETITIONS TO ANNEX
SCHOOL DISTRICTS, ACQUIRE PROPERTY BY CONDEMNATION, AND IN GENERAL
MANAGE THE OPERATIONS OF THE JUNIOR COLLEGE, THEIR POWERS ARE
EQUIVALENT, FOR APPORTIONMENT PURPOSES, TO THOSE EXERCISED BY THE
COUNTY COMMISSIONERS IN AVERY.  . . . (THESE POWERS, WHILE NOT FULLY AS
BROAD AS THOSE OF THE MIDLAND COUNTY COMMISSIONERS, CERTAINLY SHOW THAT
THE TRUSTEES PERFORM IMPORTANT GOVERNMENTAL FUNCTIONS . . . AND HAVE
SUFFICIENT IMPACT THROUGHOUT THE DISTRICT TO JUSTIFY THE CONCLUSION
THAT THE PRINCIPLE WHICH WE APPLIED IN AVERY SHOULD ALSO BE APPLIED
HERE."  ID., AT 53-54.  MEASURED BY THE HADLEY TEST, THE TOLTEC
WATERSHED IMPROVEMENT DISTRICT SURELY PERFORMS "IMPORTANT GOVERNMENTAL
FUNCTIONS" WHICH "HAVE SUFFICIENT IMPACT THROUGHOUT THE DISTRICT" TO
JUSTIFY THE APPLICATION OF THE AVERY PRINCIPLE.  THE DISTRICT MAY:
LEVY AND COLLECT SPECIAL ASSESSMENTS, WYO. STAT. ANN. SEC. 41
354.13(A); ACQUIRE AND DISPOSE OF PROPERTY, SEC. 41-354.13(B); EXERCISE
THE POWER OF EMINENT DOMAIN, SEC. 41-354.13(C); AND BORROW MONEY AND
ISSUE BONDS, SEC. 41-354.13(E)-- ALL TO EXERCISE FLOOD CONTROL.  SEC.
41-354.2. 

THE LOWER COURT CHARACTERIZED THESE FUNCTIONS AS "PROPRIETARY" IN
NATURE, RATHER THAN "GOVERNMENTAL."  BUT THAT IS A MEANINGLESS
DISTINCTION WHEN CONTROL OF PUBLIC AFFAIRS IS AT ISSUE.  CIPRIANO V.
CITY OF HOUMA, 395 U.S. 701; STEWART V. PARISH SCHOOL BOARD OF ST.
CHARLES, 310 F.SUPP.  1172, 1176, AFF'D, 400 U.S. 884.  IT IS HARDLY TO
BE ARGUED THAT A PUBLIC BODY WITH THE POWER TO TAKE LAND BY EMINENT
DOMAIN, TO ISSUE BONDS, TO LEVY TAXES, AND TO PROVIDE PLANS FOR FLOOD
CONTROL DOES NOT "PERFORM IMPORTANT GOVERNMENTAL FUNCTIONS." 

IT IS ALSO INCONCEIVABLE THAT A BODY WITH THE POWER TO DESTROY A
RIVER BY DAMMING IT AND SO DEPRIVE A WATERSHED OF ONE OF ITS SALIENT
ENVIRONMENTAL ASSETS DOES NOT HAVE "SUFFICIENT IMPACT" ON THE INTERESTS
OF PEOPLE GENERALLY TO INVOKE THE PRINCIPLES OF AVERY AND HADLEY. 

IT IS SAID THAT THERE IS A DIFFERENCE BETWEEN AN ELECTION TO CREATE
A SPECIAL-PURPOSE DISTRICT, AND AN ELECTION EITHER TO AUTHORIZE THE
DISTRICT TO ISSUE BONDS, OR TO ELECT DISTRICT OFFICERS.  IN MY VIEW,
SUCH A DISTINCTION IS NOT TENABLE. 

"OUR EXACTING EXAMINATION (OF STATUTES WHICH SELECTIVELY DISTRIBUTE
THE FRANCHISE) IS NOT NECESSITATED BY THE SUBJECT OF THE ELECTION;
RATHER, IT IS REQUIRED BECAUSE SOME RESIDENT CITIZENS ARE PERMITTED TO
PARTICIPATE AND SOME ARE NOT."  KRAMER V. UNION SCHOOL DISTRICT, SUPRA,
AT 629. 

AS WE SAID IN HADLEY: 

     "IF THE PURPOSE OF A PARTICULAR ELECTION WERE TO BE THE

  DETERMINING FACTOR IN DECIDING WHETHER VOTERS ARE ENTITLED TO

  EQUAL VOTING POWER, COURTS WOULD BE FACED WITH THE DIFFICULT JOB

  OF DISTINGUISHING BETWEEN VARIOUS ELECTIONS.  WE CANNOT READILY

  PERCEIVE JUDICIALLY MANAGEABLE STANDARDS TO AID IN SUCH A TASK. 

  IT MIGHT BE SUGGESTED THAT EQUAL APPORTIONMENT IS REQUIRED ONLY

  IN 'IMPORTANT' ELECTIONS, BUT GOOD JUDGMENT AND COMMON SENSE TELL

  US THAT WHAT MIGHT BE A VITAL ELECTION TO ONE VOTER MIGHT WELL BE

  A ROUTINE ONE TO ANOTHER."  397 U.S.,AT 55. 

THE MERE CREATION OF THE WATERSHED IMPROVEMENT DISTRICT SUBJECTS
RESIDENTS OF THE AREA TO CONSTRAINTS.  THE DISTRICT MAY CONDEMN LAND
WITHOUT FURTHER ELECTORAL APPROVAL; AND IT HAS THE POWER TO FINANCE
IMPROVEMENTS THROUGH SPECIAL TAXES LEVIED AGAINST LAND TO BE BENEFITED
BY THE IMPROVEMENTS WITHOUT FURTHER ELECTORAL APPROVAL.  WHILE SUCH
ASSESSMENTS FALL IN THE FIRST INSTANCE ON THE LANDOWNER, LESSEES AND
TENANTS WOULD BE SUBSTANTIALLY AFFECTED, AS WELL.  /3/  AND ITS POWER
TO RESHAPE OR CONTROL THE WATERSHED AND TO PROVIDE FLOOD CONTROL
ENABLES IT TO TURN RIVERS INTO FLUMES OR TO DESTROY THEM BY ERECTING
DAMS TO BUILD RESERVOIRS.  DAMS MAY BE VITAL OR THEY MAY BE
DISASTROUS.  THE SEDIMENTATION RATE IN SOME AREAS IS SO FAST AS TO
REDUCE THE LIFE OF DAMS TO A FEW DECADES.  DAMS MAY DESTROY VALUED FISH
RUNS.  DAMS SUBSTITUTE A RESERVOIR FOR A RIVER AND WIPE OUT THE VARIED
LIFE OF A RIVER COURSE, INCLUDING ITS WILDLIFE, CANOE WATERS, CAMPING
AND PICNIC GROUNDS, AND NESTING AREAS OF BIRDS.  THIS RESHAPING OF THE
FACT OF THE NATION MAY BE DISASTROUS, NO MATTER WHO CASTS THE BALLOTS. 
THE ENORMITY OF THE VIOLATION OF OUR ENVIRONMENTAL ETHICS, REPRESENTED
BY STATE AND FEDERAL LAWS, IS ONLY INCREASED WHEN THE BALLOT IS
RESTRICTED TO OR HEAVILY WEIGHTED ON BEHALF OF THE FEW WHO ARE
IMPORTANT ONLY BECAUSE THEY ARE WEALTHY. 

THE ISSUES I TENDER ARE DISPOSED OF BY THE SUGGESTIONS THAT THE
MEMBERS OF THE LEGISLATURE OF WYOMING PASSED THE ACT NOW CHALLENGED,
THAT THEY REPRESENTED THE PEOPLE OF WYOMING, THAT THEY COULD THEREFORE
PUT THE LANDOWNERS IN COMMAND OF THE ENVIRONMENTAL PROBLEMS TENDERED BY
THIS CASE.  THAT WOULD, OF COURSE, BE TRUE IF THE CASE PRESENTED NO
FEDERAL QUESTION.  BUT ADHERENCE TO N REYNOLDS V. SIMS AND ITS PROGENY
MAKES THE FEDERAL RULE DOMINANT, VIZ., THAT IMPORTANT GOVERNMENTAL
FUNCTIONS MAY NOT BE ASSIGNED TO SPECIAL GROUPS, WHETHER POWERFUL
LOBBIES OR OTHER DISCRETE GROUPS TO WHICH A STATE LEGISLATURE IS OFTEN
BEHOLDEN.     I WOULD REVERSE THE JUDGMENT BELOW. 

/1/  ESTABLISHMENT OF A WATERSHED IMPROVEMENT DISTRICT ENTAILS
SEVERAL STEPS.  FIRST, A PETITION PROPOSING THE CREATION OF SUCH A
DISTRICT MUST BE FILED WITH THE BOARD OF SUPERVISORS OF THE SOIL AND
WATER CONSERVATION DISTRICT IN WHICH THE PROPOSED WATERSHED DISTRICT
WILL LIE.  WYO. STAT. ANN. SEC. 41-354.5.  THE PETITION MUST SET FORTH
THE BOUNDARIES OF THE PROPOSED DISTRICT AND REASONS JUSTIFYING ITS
CREATION, AND MUST BE SIGNED BY A MAJORITY OF THE LANDOWNERS IN THE
PROPOSED DISTRICT.  IBID.     ON RECEIPT OF THE PETITION, THE BOARD OF
SUPERVISORS MUST CALL A PUBLIC HEARING, WHICH "(ALL OWNERS OF LAND
WITHIN THE PROPOSED WATERSHED IMPROVEMENT DISTRICT AND ALL OTHER
INTERESTED PARTIES SHALL HAVE THE RIGHT TO ATTEND . . . AND TO BE
HEARD."  ID., SEC. 41-354.7(A).  THE BOARD OF SUPERVISORS MAY, AFTER
SUCH HEARING, DETERMINE THAT THERE IS NO NEED FOR THE CREATION OF THE
DISTRICT.  IF SO, THE PETITION IS FORTHWITH DENIED.  ID., SEC. 41
354.7(C). 

IF THE SUPERVISORS DO THINK THERE IS A NEED, HOWEVER, THEY MUST
FURTHER DETERMINE WHETHER THE PROPOSED DISTRICT IS "ADMINISTRATIVELY
PRACTICABLE AND FEASIBLE."  ID., SEC. 41-354.8.  "TO ASSIST THE BOARD
OF SUPERVISORS IN THIS DETERMINATION," A REFERENDUM MUST BE HELD IN THE
PROPOSED DISTRICT "UPON THE PROPOSITION OF THE CREATION OF SUCH
DISTRICT."  IBID.  ONLY OWNERS OF LAND LYING WITHIN THE BOUNDARIES OF
THE PROPOSED DISTRICT MAY VOTE IN THIS REFERENDUM.  ID., SEC. 41
354.9(B).  IF A MAJORITY OF THE LANDOWNERS REPRESENTING A MAJORITY OF
THE ACREAGE WITHIN THE DISTRICT DO NOT VOTE AGAINST CREATION OF THE
DISTRICT, THE BOARD OF SUPERVISORS IS PERMITTED TO DETERMINE THAT THE
DISTRICT IS ADMINISTRATIVELY PRACTICABLE AND FEASIBLE, AND TO DECLARE
IT CREATED.  IBID. 

ONCE CREATED, A WATERSHED IMPROVEMENT DISTRICT HAS BROAD POWERS.  IT
MAY EXERCISE THE POWER OF EMINENT DOMAIN, LEVY AND COLLECT ASSESSMENTS,
AND ISSUE BONDS.  ID., SECS. 41-354.13 TO 41-354.14. 

/2/  THE WATERSHED IMPROVEMENT DISTRICT ACT ITSELF CONTEMPLATES THAT
NONLANDOWNERS ARE INTERESTED IN THE PROPOSED CREATION OF A DISTRICT, BY
GIVING THEM THE RIGHT TO APPEAR AND BE HEARD AT THE PUBLIC HEARING
REQUIRED BY THE ACT PRIOR TO THE REFERENDUM.  SEE N. 1, SUPRA.  NO
REASON IS ADVANCED WHY A PERSON NOT OWNING PROPERTY CAN BE SUFFICIENTLY
INTERESTED IN THE DISTRICT TO BE GIVEN A FORUM, YET IS NOT SUFFICIENTLY
INTERESTED TO BE ALLOWED TO IMPLEMENT THE VIEWS HE EXPRESSES AT THAT
FORUM THROUGH THE BALLOT BOX. 

/3/  LANDOWNERS ARE OFTEN ABLE TO PASS PROPERTY TAXES THROUGH TO
THEIR LESSEES AND TENANTS.  D. NETZER, ECONOMICS OF THE PROPERTY TAX
(1966).  THIS IS EXPECIALLY TRUE IN URBAN AREAS WHERE THE DEMAND FOR
RENTAL HOUSING IS PRICE INELASTIC, BUT THERE IS NO REASON WHY IT MAY
NOT ALSO BE TRUE IN RURAL AREAS, AS WELL. 

HENRY A. BURGESS ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANTS. 

FRED W. PHIFER ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE.  /1/

..END :



PAPISH V. UNIVERSITY OF MISSOURI CURATORS, 410 U.S. 667 


       PAPISH V. BOARD OF CURATORS OF THE UNIVERSITY OF MISSOURI ET

           AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE EIGHTH CIRCUIT

        NO. 72-794.  DECIDED MARCH 19, 1973 


EXPULSION OF STUDENT FOR DISTRIBUTING ON CAMPUS A PUBLICATION
ASSERTEDLY CONTAINING "INDECENT SPEECH" PROSCRIBED BY A BYLAW OF A
STATE UNIVERSITY'S BOARD OF CURATORS HELD AN IMPERMISSIBLE VIOLATION OF
HER FIRST AMENDMENT FREE SPEECH RIGHTS SINCE THE MERE DISSEMINATION OF
IDEAS ON A STATE UNIVERSITY CAMPUS CANNOT BE PROSCRIBED IN THE NAME OF
"CONVENTIONS OF DECENCY." 

CERTIORARI GRANTED; 464 F.2D 136, REVERSED. 

PER CURIAM. 

PETITIONER, A GRADUATE STUDENT IN THE UNIVERSITY OF MISSOURI SCHOOL
OF JOURNALISM, WAS EXPELLED FOR DISTRIBUTING ON CAMPUS A NEWSPAPER
"CONTAINING FORMS OF INDECENT SPEECH"  /1/  IN VIOLATION OF A BYLAW OF
THE BOARD OF CURATORS.  THE NEWSPAPER, THE FREE PRESS UNDERGROUND, HAD
BEEN SOLD ON THIS STATE UNIVERSITY CAMPUS FOR MORE THAN FOUR YEARS
PURSUANT TO AN AUTHORIZATION OBTAINED FROM THE UNIVERSITY BUSINESS
OFFICE.  THE PARTICULAR NEWSPAPER ISSUE IN QUESTION WAS FOUND TO BE
UNACCEPTABLE FOR TWO REASONS.  FIRST, ON THE FRONT COVER THE PUBLISHERS
HAD REPRODUCED A POLITICAL CARTOON PREVIOUSLY PRINTED IN ANOTHER
NEWSPAPER DEPICTING POLICEMEN RAPING THE STATUE OF LIBERTY AND THE
GODDESS OF JUSTICE.  THE CAPTION UNDER THE CARTOON READ:  " . . . WITH
LIBERTY AND JUSTICE FOR ALL."  SECONDLY, THE ISSUE CONTAINED AN ARTICLE
ENTITLED "M . . . F . . . ACQUITTED," WHICH DISCUSSED THE TRIAL AND
ACQUITTAL ON AN ASSAULT CHARGE OF A NEW YORK CITY YOUTH WHO WAS A
MEMBER OF AN ORGANIZATION AS "UP AGAINST THE WALL, M . . . F . . . ." 

FOLLOWING A HEARING, THE STUDENT CONDUCT COMMITTEE FOUND THAT
PETITIONER HAD VIOLATED PAR. B. OF ART. V OF THE GENERAL STANDARDS OF
STUDENT CONDUCT WHICH REQUIRES STUDENTS "TO OBSERVE GENERALLY ACCEPTED
STANDARDS OF CONDUCT" AND SPECIFICALLY PROHIBITS "INDECENT CONDUCT OR
SPEECH."  /2/  HER EXPULSION, AFTER AFFIRMANCE FIRST BY THE CHANCELLOR
OF THE UNIVERSITY AND THEN BY ITS BOARD OF CURATORS, WAS MADE EFFECTIVE
IN THE MIDDLE OF THE SPRING SEMESTER.  ALTHOUGH SHE WAS THEN PERMITTED
TO REMAIN ON CAMPUS UNTIL THE END OF THE SEMESTER, SHE WAS NOT GIVEN
CREDIT FOR THE ONE COURSE IN WHICH SHE MADE A PASSING GRADE.  /3/ 

AFTER EXHAUSTING HER ADMINISTRATIVE REVIEW ALTERNATIVES WITHIN THE
UNIVERSITY, PETITIONER BROUGHT AN ACTION FOR DECLARATORY AND INJUNCTIVE
RELIEF PURSUANT TO 42 U.S.C. 1983 IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI.  SHE CLAIMED THAT HER EXPULSION
WAS IMPROPERLY PREMISED ON ACTIVITIES PROTECTED BY THE FIRST
AMENDMENT.  THE DISTRICT COURT DENIED RELIEF, 331 F.SUPP.  1321, AND
THE COURT OF APPEALS AFFIRMED, ONE JUDGE DISSENTING.  464 F.2D 136. 
REHEARING EN BANC WAS DENIED BY AN EQUALLY DIVIDED VOTE OF ALL THE
JUDGES IN THE EIGHTH CIRCUIT. 

THE DISTRICT COURT'S OPINION RESTS, IN PART, /4/  ON THE CONCLUSION
THAT THE BANNED ISSUE OF THE NEWSPAPER WAS OBSCENE.  THE COURT OF
APPEALS FOUND IT UNNECESSARY TO DECIDE THAT QUESTION.  INSTEAD,
ASSUMING THAT THE NEWSPAPER WAS NOT OBSCENE AND THAT ITS DISTRIBUTION
IN THE COMMUNITY AT LARGE WOULD BE PROTECTED BY THE FIRST AMENDMENT,
THE COURT HELD THAT ON A UNIVERSITY CAMPUS "FREEDOM OF EXPRESSION"
COULD PROPERLY BE "SUBORDINATED TO OTHER INTERESTS SUCH AS, FOR
EXAMPLE, THE CONVENTIONS OF DECENCY IN THE USE AND DISPLAY OF LANGUAGE
AND PICTURES."  ID., AT 145.  THE COURT CONCLUDED THAT "(THE
CONSTITUTION DOES NOT COMPEL THE UNIVERSITY . . . (TO ALLOW) SUCH
PUBLICATIONS AS THE ONE IN LITIGATION TO BE PUBLICLY SOLD OR
DISTRIBUTED ON ITS OPEN CAMPUS."  IBID. 

THIS CASE WAS DECIDED SEVERAL DAYS BEFORE WE HANDED DOWN HEALY V.
JAMES, 408 U.S. 169(1972), IN WHICH, WHILE RECOGNIZING A STATE
UNIVERSITY'S UNDOUBTED PREROGATIVE TO ENFORCE REASONABLE RULES
GOVERNING STUDENT CONDUCT, WE REAFFIRMED THAT "STATE COLLEGES AND
UNIVERSITIES ARE NOT ENCLAVES IMMUNE FROM THE SWEEP OF THE FIRST
AMENDMENT."  ID., AT 180.  SEE TINKER V. DES MOINES INDEPENDENT SCHOOL
DISTRICT, 393 U.S. 503(1969).  WE THINK HEALY MAKES IT CLEAR THAT THE
MERE DISSEMINATION OF IDEAS-- NO MATTER HOW OFFENSIVE TO GOOD TASTE--
ON A STATE UNIVERSITY CAMPUS MAY NOT BE SHUT OFF IN THE NAME ALONE OF
"CONVENTIONS OF DECENCY."  OTHER RECENT PRECEDENTS OF THIS COURT MAKE
IT EQUALLY CLEAR THAT NEITHER THE POLITICAL CARTOON NOR THE HEADLINE
STORY INVOLVED IN THIS CASE CAN BE LABELED AS CONSTITUTIONALLY OBSCENE
OR OTHERWISE UNPROTECTED.  EG., KOIS V. WISCONSIN, 408 U.S. 119(1972);
GOODING V. WILSON, 405 U.S. 518(1972); COHEN V. CALIFORNIA, 403 U.S.
15(1971).  /5/  THERE IS LANGUAGE IN THE OPINIONS BELOW WHICH SUGGESTS
THAT THE UNIVERSITY'S ACTION HERE COULD BE VIEWED AS AN EXERCISE OF ITS
LEGITIMATE AUTHORITY TO ENFORCE REASONABLE REGULATIONS AS TO THE TIME,
PLACE, AND MANNER OF SPEECH AND ITS DISSEMINATION.  WHILE WE HAVE
REPEATEDLY APPROVED SUCH REGULATORY AUTHORITY, E.G., HEALY V. JAMES,
408 U.S.,AT 192-193, THE FACTS SET FORTH IN THE OPINIONS BELOW SHOW
CLEARLY THAT PETITIONER WAS EXPELLED BECAUSE OF THE DISAPPROVED CONTENT
OF THE NEWSPAPER RATHER THAN THE TIME, PLACE, OR MANNER OF ITS
DISTRIBUTION.  /6/ 

SINCE THE FIRST AMENDMENT LEAVES NO ROOM FOR THE OPERATION OF A DUAL
STANDARD IN THE ACADEMIC COMMUNITY WITH RESPECT TO THE CONTENT OF
SPEECH, AND BECAUSE THE STATE UNIVERSITY'S ACTION HERE CANNOT BE
JUSTIFIED AS A NONDISCRIMINATORY APPLICATION OF REASONABLE RULES
GOVERNING CONDUCT, THE JUDGMENTS OF THE COURTS BELOW MUST BE REVERSED. 
ACCORDINGLY THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE CASE
IS REMANDED TO THE DISTRICT COURT, AND THAT COURT IS INSTRUCTED TO
ORDER THE UNIVERSITY TO RESTORE TO PETITIONER ANY COURSE CREDITS SHE
EARNED FOR THE SEMESTER IN QUESTION AND, UNLESS SHE IS BARRED FROM
REINSTATEMENT FOR VALID ACADEMIC REASONS, TO REINSTATE HER AS A STUDENT
IN THE GRADUATE PROGRAM. 

REVERSED AND REMANDED. 

/1/  THIS CHARGE WAS CONTAINED IN A LETTER FROM THE UNIVERSITY'S
DEAN OF STUDENTS, WHICH IS REPRINTED IN THE COURT OF APPELAS' OPINION. 
464 F.2D 136, 139(CA8 1972). 

/2/  IN PERTINENT PART, THE BYLAW STATES: 

"STUDENTS ENROLLING IN THE UNIVERSITY ASSUME AN OBLIGATION AND ARE
EXPECTED BY THE UNIVERSITY TO CONDUCT THEMSELVES IN A MANNER COMPATIBLE
WITH THE UNIVERSITY'S FUNCTIONS AND MISSIONS AS AN EDUCATIONAL
INSTITUTION.  FOR THAT PURPOSE STUDENTS ARE REQUIRED TO OBSERVE
GENERALLY ACCEPTED STANDARDS OF CONDUCT.  . . . (INDECENT CONDUCT OR
SPEECH . . . ARE EXAMPLES OF CONDUCT WHICH WOULD CONTRAVENE THIS
STANDARD.  . . . "  464 F.2D, AT 138. 

/3/  MISS PAPISH, A 32-YEAR-OLD GRADUATE STUDENT, WAS ADMITTED TO
THE GRADUATE SCHOOL OF THE UNIVERSITY IN SEPTEMBER 1963.  FIVE AND ONE
HALF YEARS LATER, WHEN THE EPISODE UNDER CONSIDERATION OCCURRED, SHE
WAS STILL PURSUING HER GRADUATE DEGREE.  SHE WAS ON "ACADEMIC
PROBATION" BECAUSE OF "PROLONGED SUBMARGINAL ACADEMIC PROGRESS," AND
SINCE NOVEMBER 1, 1967, SHE ALSO HAD BEEN ON DISCIPLINARY PROBATION FOR
DISSEMINATING STUDENTS FOR A DEMOCRATIC SOCIETY LITERATURE FOUND AT A
UNIVERSITY HEARING TO HAVE CONTAINED "PORNOGRAPHIC, INDECENT AND
OBSCENE WORDS."  THIS DISSEMINATION HAD OCCURRED AT A TIME WHEN THE
UNIVERSITY WAS HOST TO HIGH SCHOOL SENIORS AND THEIR PARENTS.  464
F.2D, AT 139 NN. 3 AND 4.  BUT DISENCHANTMENT WITH MISS PAPISH'S
PERFORMANCE, UNDERSTANDABLE AS IT MAY HAVE BEEN, IS NO JUSTIFICATION
FOR DENIAL OF CONSTITUTIONAL RIGHTS. 

/4/  PREFATORILY, THE DISTRICT COURT HELD THAT PETITIONER, WHO WAS A
NONRESIDENT OF MISSOURI, WAS POWERLESS TO COMPLAIN OF HER DISMISSAL
BECAUSE SHE ENJOYED NO "FEDERALLY PROTECTED OR OTHER RIGHT TO ATTEND A
STATE UNIVERSITY OF A STATE OF WHICH SHE IS NOT A DOMICILED RESIDENT." 
331 F.SUPP.  1321, 1326.  THE COURT OF APPEALS, BECAUSE IT AFFIRMED ON
A DIFFERENT GROUND, DEEMED IT "UNNECESSARY TO COMMENT" UPON THIS
RATIONALE.  464 F.2D, AT 141 N. 9.  THE DISTRICT COURT'S REASONING IS
DIRECTLY INCONSISTENT WITH A LONG LINE OF CONTROLLING DECISIONS OF THIS
COURT.  SEE PERRY V. SINDERMANN, 408 U.S. 593, 596-598(1972), AND THE
CASES CITED THEREIN. 

/5/  UNDER THE AUTHORITY OF GOODING AND COHEN, WE HAVE REVERSED OR
VACATED AND REMANDED A NUMBER OF CASES INVOLVING THE SAME EXPLETIVE
USED IN THIS NEWSPAPER HEADLINE.  CASON V. CITY OF COLUMBUS, 409 U.S.
1053(1972); ROSENFELD V. NEW JERSEY, 408 U.S. 901(1972); LEWIS V. CITY
OF NEW ORLEANS, 408 U.S. 913(1972); BROWN V. OKLAHOMA, 408 U.S.
914(1972).  CF. KEEFE V. GEANAKOS, 418 F.2D 359, 361 AND N. 7(CA1
1969). 

/6/  IT IS TRUE, AS MR. JUSTICE REHNQUIST'S DISSENT INDICATES, THAT
THE DISTRICT COURT EMPHASIZED THAT THE NEWSPAPER WAS DISTRIBUTED NEAR
THE UNIVERSITY'S MEMORIAL TOWER AND CONCLUDED THAT PETITIONER WAS
ENGAGED IN "PANDERING."  THE OPINION MAKES CLEAR, HOWEVER, THAT THE
REFERENCE TO "PANDERING" WAS ADDRESSED TO THE CONTENT OF THE NEWSPAPER
AND TO THE ORGANIZATION ON THE FRONT PAGE OF THE CARTOON AND THE
HEADLINE, RATHER THAN TO THE MANNER IN WHICH THE NEWSPAPER WAS
DISSEMINATED.  331 F.SUPP.,AT 1325, 1329, 1330, 1332.  AS THE COURT OF
APPEALS OPINION STATES, "(THE FACTS ARE NOT IN DISPUTE."  464 F.2D, AT
138.  THE CHARGE AGAINST PETITIONER WAS QUITE UNRELATED TO EITHER THE
PLACE OR MANNER OF DISTRIBUTION.  THE DEAN'S CHARGE STATED THAT THE
"FORMS OF SPEECH" CONTAINED IN THE NEWSPAPER WERE "IMPROPER ON THE
UNIVERSITY CAMPUS."  ID., AT 139.  MOREOVER, THE MAJORITY BELOW QUOTED
WITHOUT DISAPPROVAL PETITIONER'S VERIFIED AFFIDAVIT STATING THAT "NO
DISRUPTION OF THE UNIVERSITY'S FUNCTIONS OCCURRED IN CONNECTION WITH
THE DISTRIBUTION."  ID., AT 139-140.  LIKEWISE, BOTH THE DISSENTING
OPINION IN THE COURT OF APPEALS AND THE DISTRICT COURT OPINION REFER TO
THIS SAME UNCONTROVERTED FACT.  ID., AT 145; 331 F.SUPP.,AT 1328. 
THUS, IN THE ABSENCE OF ANY DISRUPTION OF CAMPUS ORDER OR INTERFERENCE
WITH THE RIGHTS OF OTHERS, THE SOLE ISSUE WAS WHETHER A STATE
UNIVERSITY COULD PROSCRIBE THIS FORM OF EXPRESSION. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

I JOIN THE DISSENT OF JUSTICE REHNQUIST WHICH FOLLOWS AND ADD A FEW
OBSERVATIONS. 

THE PRESENT CASE IS CLEARLY DISTINGUISHABLE FROM THE COURT'S PRIOR
HOLDINGS IN COHEN, GOODING, AND ROSENFELD, AS ERRONEOUS AS THOSE
HOLDINGS ARE.  /1/  COHEN, GOODING, AND ROSENFELD DEALT WITH
PROSECUTIONS UNDER CRIMINAL STATUTES WHICH ALLOWED THE IMPOSITION OF
SEVERE PENALTIES.  UNLIKE SUCH TRADITIONAL FIRST AMENDMENT CASES, WE
DEAL HERE WITH RULES WHICH GOVERN CONDUCT ON THE CAMPUS OF A STATE
UNIVERSITY. 

IN THEORY, AT LEAST, A UNIVERSITY IS NOT MERELY AN ARENA FOR THE
DISCUSSION OF IDEAS BY STUDENTS AND FACULTY; IT IS ALSO AN INSTITUTION
WHERE INDIVIDUALS LEARN TO EXPRESS THEMSELVES IN ACCEPTABLE, CIVIL
TERMS.  WE PROVIDE THAT ENVIRONMENT TO THE END THAT STUDENTS MAY LEARN
THE SELF-RESTRAINT NECESSARY TO THE FUNCTIONING OF A CIVILIZED SOCIETY
AND UNDERSTAND THE NEED FOR THOSE EXTERNAL RESTRAINTS TO WHICH WE MUST
ALL SUBMIT IF GROUP EXISTENCE IS TO BE TOLERABLE. 

I FIND IT A CURIOUS-- EVEN-- BIZARRE EXTENSION OF COHEN, GOODING,
AND ROSENFELD TO SAY THAT A STATE UNIVERSITY IS IMPOTENT TO DEAL WITH
CONDUCT SUCH AS THAT OF THE PETITIONER.  STUDENTS ARE, OF COURSE, FREE
TO CRITICIZE THE UNIVERSITY, ITS FACULTY, OR THE GOVERNMENT IN
VIGOROUS, OR EVEN HARSH, TERMS.  BUT IT IS NOT UNREASONABLE OR
VIOLATIVE OF THE CONSTITUTION TO SUBJECT TO DISCIPLINARY ACTION THOSE
INDIVIDUALS WHO DISTRIBUTE PUBLICATIONS WHICH ARE AT THE SAME TIME
OBSCENE AND INFANTILE.  TO PRECLUDE A STATE UNIVERSITY OR COLLEGE FROM
REGULATING THE DISTRIBUTION OF SUCH OBSCENE MATERIALS DOES NOT PROTECT
THE VALUES INHERENT IN THE FIRST AMENDMENT; RATHER, IT DEMEANS THOSE
VALUES.  THE ANOMALY OF THE COURT'S HOLDING TODAY IS SUGGESTED BY ITS
USE OF THE NOW FAMILIAR "CODE ABBREVIATION FOR THE PETITIONERS FOUL
LANGUAGE.  THE JUDGMENT OF THE COURT OF APPEALS WAS EMINENTLY CORRECT. 
IT SHOULD BE AFFIRMED. 

/1/  COHEN V. CALIFORNIA, 403 U.S. 15, 27(1971) (BLACKMUN, J., WITH
WHOM BURGER, C.J., AND BLACK, J., JOINED, DISSENTING); GOODING V.
WILSON, 405 U.S. 518, 528(1972) (BURGER, C.J., DISSENTING), 534
(BLACKMUN, J., DISSENTING); ROSENFELD V. NEW JERSEY, 408 U.S. 901,
902(1972) (BURGER, C.J., DISSENTING), 903 (POWELL, J., DISSENTING), 909
(REHNQUIST, J., DISSENTING). 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

WE HELD IN HEALY V. JAMES, 408 U.S. 169, 180(1972), THAT "STATE
COLLEGES AND UNIVERSITIES ARE NOT ENCLAVES IMMUNE FROM THE SWEEP OF THE
FIRST AMENDMENT."  BUT THAT GENERAL PROPOSITION DOES NOT DECIDE THE
CONCRETE CASE NOW BEFORE US.  HEALY HELD THAT THE PUBLIC UNIVERSITY
THERE INVOLVED HAD NOT AFFORDED ADEQUATE NOTICE AND HEARING OF THE
ACTION IT PROPOSED TO TAKE WITH RESPECT TO THE STUDENTS INVOLVED.  HERE
THE COURT OF APPEALS FOUND, AND THAT FINDING IS NOT QUESTIONED IN THIS
COURT'S OPINION, THAT "THE ISSUE ARISES IN THE CONTEXT OF A STUDENT
DISMISSAL, AFTER SERVICE OF WRITTEN CHARGES AND AFTER A FULL AND FAIR
HEARING, FOR VIOLATION OF A UNIVERSITY RULE OF CONDUCT."  464 F.2D 136,
138. 

BOTH BECAUSE I DO NOT BELIEVE PROPER EXERCISE OF OUR JURISDICTION
WARRANTS SUMMARY REVERSAL IN A CASE DEPENDENT IN PART ON ASSESSMENT OF
THE RECORD AND NOT SQUARELY GOVERNED BY ONE OF OUR DECISIONS, AND
BECAUSE I HAVE SERIOUS RESERVATIONS ABOUT THE RESULT REACHED BY THE
COURT, I DISSENT FROM THE SUMMARY DISPOSITION OF THIS CASE. 

        I 

PETITIONER PAPISH HAS FOR MANY YEARS BEEN A GRADUATE STUDENT AT THE
UNIVERSITY OF MISSOURI.  JUDGE STEPHENSON, WRITING FOR THE COURT OF
APPEALS IN THIS CASE, SUMMARIZED HER RECORD IN THESE WORDS: 

"MISS PAPISH'S ACADEMIC RECORD REVEALS THAT SHE WAS IN NO RUSH TO
COMPLETE THE REQUIREMENTS FOR HER GRADUATE DEGREE IN JOURNALISM.  SHE
POSSESSES A 1958 ACADEMIC DEGREE FROM THE UNIVERSITY OF CONNECTICUT;
SHE WAS ADMITTED TO GRADUATE SCHOOL AT THE UNIVERSITY OF MISSOURI IN
SEPTEMBER IN 1963; AND ALTHOUGH SHE ATTENDED SCHOOL THROUGH THE FALL,
WINTER, AND SUMMER SEMESTERS, SHE WAS, AFTER 6 YEARS OF WORK, MAKING
LITTLE, IF ANY, SIGNIFICANT PROGRESS TOWARD THE ACHIEVEMENT OF HER
STATED ACADEMIC OBJECTIVE.  AT THE TIME OF HER DISMISSAL, MISS PAPISH
WAS ENROLLED IN A ONE-HOUR COURSE ENTITLED 'RESEARCH JOURNALISM'  AND
IN A THREE-HOUR COURSE ENTITLED 'CERAMICS 4.'  IN THE SEMESTER
IMMEDIATELY PRECEDING HER DISMISSAL, SHE WAS ENROLLED ONLY IN 'CERAMICS
3.'"  464 F.2D, AT 138 N. 2.     WHATEVER MAY HAVE BEEN HER LACK OF
ABILITY OR MOTIVATION IN THE ACADEMIC AREA, PETITIONER HAD BEEN ACTIVE
ON OTHER FRONTS.  IN THE WORDS OF THE COURT OF APPEALS: 

"3.  ON NOVEMBER 1, 1967, THE FACULTY COMMITTEE ON STUDENT CONDUCT,
AFTER NOTICE OF CHARGES AND A HEARING, LACED MISS PAPISH ON
DISCIPLINARY PROBATION FOR THE REMAINDER OF HER STUDENT STATUS AT THE
UNIVERSITY.  THE BASIS FOR HER PROBATION WAS HER VIOLATION OF THE
GENERAL STANDARD OF STUDENT CONDUCT.  . . . THIS ACTION AROSE OUT OF
EVENTS WHICH TOOK PLACE ON OCTOBER 14, 1967, AT A TIME WHEN THE
UNIVERSITY WAS HOSTING HIGH SCHOOL SENIORS AND THEIR PARENTS FOR THE
PURPOSE OF ACQUAINTING THEM WITH ITS EDUCATIONAL PROGRAMS AND OTHER
ASPECTS OF CAMPUS LIFE.  SHE SPECIFICALLY WAS CHARGED, INTER ALIA, WITH
OPENLY DISTRIBUTING, ON UNIVERSITY GROUNDS, WITHOUT THE PERMISSION OF
APPROPRIATE UNIVERSITY PERSONNEL, TWO NON-UNIVERSITY PUBLICATIONS OF
THE STUDENTS FOR DEMOCRATIC SOCIETY (SDS).  IT WAS ALLEGED IN THE
NOTICE OF CHARGES, AND APPARENTLY ESTABLISHED AT THE ENSUING HEARING,
THAT ONE OF THESE PUBLICATIONS, THE NEW LEFT NOTES, CONTAINED
'PORNOGRAPHIC, INDECENT AND OBSCENE WORDS, "F-- ,"  "BULL S-- ," AND
"SH-- S."'  THE NOTICE OF CHARGES ALSO RECITES THAT THE OTHER
PUBLICATION, THE CIA AT COLLEGE:  INTO TWILIGHT AND BACK, CONTAINED 'A
PORNOGRAPHIC AND INDECENT PICTURE DEPICTING TWO RATS APPARENTLY
FORNICATING ON ITS COVER.  . . . ' 

     "4.  SOME TWO WEEKS PRIOR TO THE INCIDENT CAUSING HER

  DISMISSAL, MISS PAPISH WAS PLACED ON ACADEMIC PROBATION BECAUSE

  OF PROLONGED SUBMARGINAL ACADEMIC PROGRESS.  IT WAS A CONDITION

  OF THIS PROBATION THAT SHE PURSUE SATISFACTORY WORK ON HER

  THESIS, AND THAT SUCH WORK BE EVIDENCED BY THE COMPLETION AND

  PRESENTATION OF SEVERAL COMPLETED CHAPTERS TO HER THESIS ADVISOR

  BY THE END OF THE SEMESTER.  BY LETTER DATED JANUARY 31, 1969,

  MISS PAPISH WAS NOTIFIED THAT HER FAILURE TO COMPLY WITH THIS

  SPECIAL CONDITION WITHIN THE TIME SPECIFIED WOULD RESULT IN THE

  TERMINATION OF HER CANDIDACY FOR A GRADUATE DEGREE."  ID., AT

  138-139, NN. 3, 4. 

IT WAS IN THE LIGHT OF THIS BACKGROUND THAT RESPONDENTS FINALLY
EXPELLED PETITIONER FOR THE INCIDENT DESCRIBED IN THE COURT'S OPINION. 
THE COURT FAILS TO NOTE, HOWEVER, TWO FINDINGS MADE BY THE DISTRICT
COURT WITH RESPECT TO THE CIRCUMSTANCES UNDER WHICH PETITIONER HAWKED
HER NEWSPAPER NEAR THE MEMORIAL TOWER OF THE UNIVERSITY: 

"THE MEMORIAL TOWER IS THE CENTRAL UNIT OF INTEGRATED STRUCTURES
DEDICATED TO THE MEMORY OF THOSE STUDENTS WHO DIED IN THE ARMED
SERVICES IN WORLD WARS I AND II.  OTHER ADJACENT UNITS INCLUDE THE
STUDENT UNION AND A NON-SECTARIAN CHAPEL FOR PRAYER AND MEDITATION. 
THROUGH THE MEMORIAL ARCH PASS PARENTS OF STUDENTS, GUESTS OF THE
UNIVERSITY, STUDENTS, INCLUDING MANY PERSONS UNDER 18 YEARS OF AGE AND
HIGH SCHOOL STUDENTS."  331 F.SUPP.  1321, 1325 N. 4. 

     "THE PLAINTIFF KNOWINGLY AND INTENTIONALLY PARTICIPATED IN

  DISTRIBUTING THE PUBLICATION TO PROVOKE A CONFRONTATION WITH THE

  AUTHORITIES BY PANDERING THE PUBLICATION WITH CRUDE, PUERILE,

  VULGAR OBSCENITIES."  ID., AT 1325. 

        II 

I CONTINUE TO ADHERE TO THE DISSENTING VIEWS EXPRESSED IN ROSENFELD
V. NEW JERSEY, 408 U.S. 901(1972), THAT THE PUBLIC USE OF THE WORD "M .
. . F . . . " IS "LEWD AND OBSCENE" AS THOSE TERMS WERE USED BY THE
COURT IN CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568(1942).  THERE THE
COURT SAID: 

"THERE ARE CERTAIN WELL-DEFINED AND NARROWLY LIMITED CLASSES OF
SPEECH, THE PREVENTION AND PUNISHMENT OF WHICH HAVE NEVER BEEN THOUGHT
TO RAISE ANY CONSTITUTIONAL PROBLEM.  THESE INCLUDE THE LEWD AND
OBSCENE, THE PROFANE, THE LIBELOUS, AND THE INSULTING OR 'FIGHTING'
WORDS-- THOSE WHICH BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO
INCITE AN IMMEDIATE BREACH OF THE PEACE.  IT HAS BEEN WELL OBSERVED
THAT SUCH UTTERANCES ARE NO ESSENTIAL PART OF ANY EXPOSITION OF IDEAS,
AND ARE OF SUCH SLIGHT SOCIAL VALUE AS TO STEP TO TRUTH THAT ANY
BENEFIT THAT MAY BE DERIVED FROM THEM IS CLEARLY OUTWEIGHED BY THE
SOCIAL INTEREST IN ORDER AND MORALITY."  ID., AT 571-572. 

BUT EVEN WERE I CONVINCED OF THE CORRECTNESS OF THE COURT'S
DISPOSITION OF ROSENFELD, I WOULD NOT THINK IT SHOULD CONTROL THE
OUTCOME OF THIS CASE.  IT SIMPLY DOES NOT FOLLOW UNDER ANY OF OUR
DECISIONS OR FROM THE LANGUAGE OF THE FIRST AMENDMENT ITSELF THAT
BECAUSE PETITIONER COULD NOT BE CRIMINALLY PROSECUTED BY THE MISSOURI
STATE COURTS FOR THE CONDUCT IN QUESTION, SHE MAY NOT THEREFORE BE
EXPELLED FROM THE UNIVERSITY OF MISSOURI FOR THE SAME CONDUCT.  A STATE
UNIVERSITY IS AN ESTABLISHMENT FOR THE PURPOSE OF EDUCATING THE STATE'S
YOUNG PEOPLE, SUPPORTED BY THE TAX REVENUES OF THE STATE'S CITIZENS. 
THE NOTION THAT THE OFFICIALS LAWFULLY CHARGED WITH THE GOVERNANCE OF
THE UNIVERSITY HAVE SO LITTLE CONTROL OVER THE ENVIRONMENT FOR WHICH
THEY ARE RESPONSIBLE THAT THEY MAY NOT PREVENT THE PUBLIC DISTRIBUTION
OF A NEWSPAPER ON CAMPUS WHICH CONTAINED THE LANGUAGE DESCRIBED IN THE
COURT'S OPINION IS QUITE UNACCEPTABLE TO ME, AND I WOULD SUSPECT WOULD
HAVE BEEN EQUALLY UNACCEPTABLE TO THE FRAMERS OF THE FIRST AMENDMENT. 
THIS IS INDEED A CASE WHERE THE OBSERVATION OF A UNANIMOUS COURT IN
CHAPLINSKY THAT "SUCH UTTERANCES ARE NO ESSENTIAL PART OF ANY
EXPOSITION OF IDEAS, AND ARE OF SUCH SLIGHT SOCIAL VALUE AS A STEP TO
TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED FROM THEM IS CLEARLY
OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND MORALITY"  APPLIES WITH
COMPELLING FORCE. 

        III 

THE COURT CAUTIONS THAT "DISENCHANTMENT WITH MISS PAPISH'S
PERFORMANCE, UNDERSTANDABLE AS IT MAY HAVE BEEN, IS NO JUSTIFICATION
FOR DENIAL OF CONSTITUTIONAL RIGHTS."  QUITE SO.  BUT A WOODEN
INSISTENCE ON EQUATING, FOR CONSTITUTIONAL PURPOSES, THE AUTHORITY OF
THE STATE TO CRIMINALLY PUNISH WITH ITS AUTHORITY TO EXERCISE EVEN A
MODICUM OF CONTROL OVER THE UNIVERSITY WHICH IT OPERATES, SERVES
NEITHER THE CONSTITUTION NOR PUBLIC EDUCATION WELL.  THERE IS REASON TO
THINK THAT THE "DISENCHANTMENT" OF WHICH THE COURT SPEAKS MAY, AFTER
THIS DECISION, BECOME WIDESPREAD AMONG TAXPAYERS AND LEGISLATORS.  THE
SYSTEM OF TAX-SUPPORTED PUBLIC UNIVERSITIES WHICH HAS GROWN UP IN THIS
COUNTRY IS ONE OF ITS TRULY GREAT ACCOMPLISHMENTS; IF THEY ARE TO
CONTINUE TO GROW AND THRIVE TO SERVE AN EXPANDING POPULATION, THEY MUST
HAVE SOMETHING MORE THAN THE GRUDGING SUPPORT OF TAXPAYERS AND
LEGISLATORS.  BUT ONE CAN SCARCELY BLAME THE LATTER IF, TOLD BY THE
COURT THAT THEIR ONLY FUNCTION IS TO SUPPLY TAX MONEY FOR THE OPERATION
OF THE UNIVERSITY, THE "DISENCHANTMENT" MAY REACH SUCH A POINT THAT
THEY DOUBT THE GAME IS WORTH THE CANDLE. 
..END :














MARSTON V. LEWIS, 410 U.S. 679 


       MARSTON ET AL. V. LEWIS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF ARIZONA

        NO. 72-899.  DECIDED MARCH 19, 1973 


ARIZONA'S 50-DAY DURATIONAL VOTER RESIDENCY AND REGISTRATION
REQUIREMENTS AS APPLIED TO OTHER THAN PRESIDENTIAL ELECTIONS HELD
CONSTITUTIONALLY PERMISSIBLE, IN LIGHT OF ARIZONA'S SPECIAL PROBLEMS
ARISING FROM THE STATE'S LEGITIMATE NEEDS TO CORRECT REGISTRATIONS
ACCOMPLISHED BY VOLUNTEER PERSONNEL AND TO INTERRUPT REGISTRATION WORK
TO TAKE CARE OF ACTIVITIES OCCASIONED BY ITS FALL PRIMARIES. 

REVERSED. 

PER CURIAM. 

FOURTEEN COUNTY RECORDERS AND OTHER PUBLIC OFFICIALS OF ARIZONA
APPEAL FROM A JUDGMENT OF A THREE-JUDGE DISTRICT COURT HOLDING THE
STATE'S 50-DAY DURATIONAL VOTER RESIDENCY REQUIREMENT AND ITS 50-DAY
VOTER REGISTRATION REQUIREMENT UNCONSTITUTIONAL UNDER THE DECISION IN
DUNN V. BLUMSTEIN, 405 U.S. 330(1972).  /1/  A PERMANENT INJUNCTION WAS
ENTERED AGAINST ENFORCEMENT OF THESE OR ANY OTHER GREATER-THAN-30-DAY
RESIDENCY AND REGISTRATION REQUIREMENTS IN ANY ELECTION HELD AFTER
NOVEMBER 1972.  APPELLANTS DO NOT SEEK REVIEW OF THE DISTRICT COURT'S
JUDGMENT INSOFAR AS IT ENJOINS APPLICATION OF THE 50-DAY REQUIREMENTS
IN PRESIDENTIAL ELECTIONS.  SEE VOTING RIGHTS ACT AMENDMENTS OF 1970,
84 STAT. 316, 42 U.S.C. 1973AA-1.  /2/  APPELLANTS ASSERT, HOWEVER,
THAT THE REQUIREMENTS, AS APPLIED TO SPECIAL, PRIMARY, OR GENERAL
ELECTIONS INVOLVING STATE AND LOCAL OFFICIALS, ARE SUPPORTED BY
SUFFICIENTLY STRONG LOCAL INTERESTS TO PASS CONSTITUTIONAL MUSTER.  WE
AGREE AND REVERSE. 

IN DUNN V. BLUMSTEIN, WE STRUCK DOWN TENNESSEE'S DURATIONAL VOTER
RESIDENCY REQUIREMENT OF ONE YEAR IN THE STATE AND THREE MONTHS IN THE
COUNTY.  WE RECOGNIZED THAT A PERSON DOES NOT HAVE A FEDERAL
CONSTITUTIONAL RIGHT TO WALK UP TO A VOTING PLACE ON ELECTION DAY AND
DEMAND A BALLOT.  STATES HAVE VALID AND SUFFICIENT INTERESTS IN
PROVIDING FOR SOME PERIOD OF TIME-- PRIOR TO AN ELECTION-- IN ORDER TO
PREPARE ADEQUATE VOTER RECORDS AND PROTECT ITS ELECTORAL PROCESSES FROM
POSSIBLE FRAUDS.  A YEAR, OR EVEN THREE MONTHS, WAS FOUND TOO LONG,
PARTICULARLY IN THE CONTEXT OF "THE JUDGMENT OF THE TENNESSEE
LAWMAKERS," WHO HAD SET "THE CUTOFF POINT FOR REGISTRATION (AT) 30 DAYS
BEFORE AN ELECTION.  . . . " 405 U.S.,AT 349.  THE ARIZONA SCHEME,
HOWEVER, STANDS IN A DIFFERENT LIGHT.  THE DURATIONAL RESIDENCY
REQUIREMENT IS ONLY 50 DAYS, NOT A YEAR OR EVEN THREE MONTHS. 
MOREOVER, UNLIKE TENNESSEE'S, THE ARIZONA REQUIREMENT IS TIED TO THE
CLOSING OF THE STATE'S REGISTRATION PROCESS AT 50 DAYS PRIOR TO
ELECTIONS AND REFLECTS A STATE LEGISLATIVE JUDGMENT THAT THE PERIOD IS
NECESSARY TO ACHIEVE THE STATE'S LEGITIMATE GOALS. 

WE ACCEPT THAT JUDGMENT, PARTICULARLY IN LIGHT OF THE REALITIES OF
ARIZONA'S REGISTRATION AND VOTING PROCEDURES.  THOSE PROCEDURES,
APPARENTLY FIRST ADOPTED DURING THE POPULIST ERA, RELY ON A "MASSIVE"
VOLUNTEER DEPUTY REGISTRAR SYSTEM.  SEE ARIZ. REV. STAT. ANN. SEC. 16
141.  ACCORDING TO APPELLANTS' TESTIMONY, ALTHOUGH THESE VOLUNTEERS
MAKE REGISTRATION CONVENIENT FOR VOTERS, THEY AVERAGE 1.13 MISTAKES PER
VOTER REGISTRATION AND THE COUNTY RECORDER MUST CORRECT THOSE MISTAKES
BEFORE CERTIFYING TO THE "COMPLETENESS AND CORRECTNESS" OF EACH
PRECINCT REGISTER.  ARIZ. REV. STAT. ANN. SEC. 16-155.  THE DISTRICT
COURT ITSELF NOTED THAT THERE WERE ESTIMATES THAT "IN MARICOPA COUNTY
ALONE, SOME 4,400 REGISTERED VOTERS MIGHT BE DENIED THE RIGHT TO VOTE
IF THE COUNTY VOTER LIST IS IN ERROR BY ONLY ONE PERCENT." 

AN ADDITIONAL COMPLICATING FACTOR IN ARIZONA REGISTRATION PROCEDURES
IS THE STATE'S FALL PRIMARY SYSTEM.  THE UNCONTRADICTED TESTIMONY
DEMONSTRATES THAT IN THE WEEKS PRECEDING THE DEADLINE FOR REGISTRATION
IN GENERAL ELECTIONS-- A PERIOD MARKED BY A CURVE TOWARD THE "PEAK" IN
TERMS OF THE REGISTRATION AFFIDAVITS RECEIVED-- COUNTY RECORDERS AND
THEIR STAFFS ARE UNABLE TO PROCESS THE INCOMING AFFIDAVITS BECAUSE OF
THEIR WORK IN THE FALL PRIMARIES.  IT IS ONLY AFTER THE PRIMARIES ARE
OVER THAT THE OFFICIALS CAN RETURN TO THE ACCUMULATED BACKLOG OF
REGISTRATION AFFIDAVITS AND UNDERTAKE TO PROCESS THEM IN ACCORDANCE
WITH APPLICABLE STATUTORY REQUIREMENTS. 

ON THE BASIS OF THE EVIDENCE BEFORE THE DISTRICT COURT, IT IS CLEAR
THAT THE STATE HAS DEMONSTRATED THAT THE 50-DAY VOTER REGISTRATION
CUTOFF (FOR ELECTION OF STATE AND LOCAL OFFICIALS) IS NECESSARY TO
PERMIT PREPARATION OF ACCURATE VOTER LISTS.  WE SAID IN DUNN V.
BLUMSTEIN THAT "(FIXING A CONSTITUTIONALLY ACCEPTABLE PERIOD IS SURELY
A MATTER OF DEGREE.  IT IS SUFFICIENT TO NOTE HERE THAT 30 DAYS APPEARS
TO BE AN AMPLE PERIOD OF TIME FOR THE STATE TO COMPLETE WHATEVER
ADMINISTRATIVE TASKS ARE NECESSARY TO PREVENT FRAUD-- AND A YEAR, OR
THREE MONTHS, TOO MUCH."  405 U.S.,AT 348.  IN THE PRESENT CASE, WE ARE
CONFRONTED WITH A RECENT AND AMPLY JUSTIFIABLE LEGISLATIVE JUDGMENT
THAT 50 DAYS RATHER THAN 30 IS NECESSARY TO PROMOTE THE STATE'S
IMPORTANT INTEREST IN ACCURATE VOTER LISTS.  THE CONSTITUTION IS NOT SO
RIGID THAT THAT DETERMINATION AND OTHERS LIKE IT MAY NOT STAND. 

THE JUDGMENT OF THE DISTRICT COURT, INSOFAR AS IT HAS BEEN APPEALED
FROM, IS

REVERSED. 

/1/  THE REQUIREMENTS APPEAR, RESPECTIVELY, AT ARIZ. REV. STAT. ANN.
SECS. 16-101(3) AND 16-107.  THESE PROVISIONS WERE ENACTED AFTER OUR
DECISION IN DUNN V. BLUMSTEIN. 

APPELLEES ARE A DEPUTY REGISTRAR IN MARICOPA COUNTY AND A RESIDENT
OF MARICOPA COUNTY. 

/2/  SECTION 1973AA-1 WITHSTOOD CONSTITUTIONAL ATTACK IN OREGON V.
MITCHELL, 400 U.S. 112(1970). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

IN DUNN V. BLUMSTEIN, 405 U.S. 330, 348(1972), JUST LAST TERM, WE
HELD THAT A 30-DAY RESIDENCY REQUIREMENT PROVIDED THE STATE WITH "AN
AMPLE PERIOD OF TIME . . . TO COMPLETE WHATEVER ADMINISTRATIVE TASKS
ARE NECESSARY TO PREVENT FRAUD" IN THE PROCESS OF VOTER REGISTRATION. 
WE MADE THAT JUDGMENT IN LIGHT OF THE FACTS THAT CONGRESS HAD MADE A
SIMILAR JUDGMENT AS TO PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS, 42
U.S.C. 1973AA-1(A)(6), THAT ROUGHLY HALF THE STATES HAD PERIODS OF
SIMILAR LENGTH, 1972-1973 BOOK OF THE STATES 36-37 (AS OF TIME OF
DECISION), AND THAT THE EVIDENCE NEEDED TO DETERMINE RESIDENCY WAS
RELATIVELY EASY TO FIND.  THE DISTRICT COURT, AFTER HEARING EVIDENCE
ABOUT THE ADMINISTRATIVE BURDENS IN ARIZONA, FOUND THAT APPELLANTS
NEEDED NO LONGER THAN 30 DAYS TO COMPLETE THE SAME TASKS.  I FIND
NOTHING IN THE RECORD THAT LEADS ME TO CONCLUDE THAT THIS JUDGMENT WAS
ERRONEOUS. 

THE COURT RELIES ON TWO FACTORS TO JUSTIFY THE LONGER PERIOD. 
FIRST, ARIZONA'S VOLUNTEER REGISTRAR SYSTEM IS SAID TO RESULT IN SO
MANY ERRORS THAT THEIR CORRECTION REQUIRES 45 DAYS.  BUT THESE ERRORS
OCCUR ONLY BECAUSE THE DEPUTY REGISTRARS ARE INADEQUATELY TRAINED AND
THE CENTRAL SUPERVISION OF THE DATA-CONTROL PROCESS IS NOT WELL
ORGANIZED.  THE DISTRICT COURT FOUND THAT "UNDER PRESENT CONDITIONS, AT
LEAST FORTY-FIVE DAYS ARE REQUIRED TO MAKE A VOTER LIST AS FREE AS
POSSIBLE".  THIS JUSTIFIED ITS REFUSAL TO ENJOIN THE OPERATION OF THE
STATUTE AS TO THE ELECTION HELD IN NOVEMBER 1972.  BUT APPELLANT
MARSTON'S TESTIMONY WAS DIRECTED ALMOST EXCLUSIVELY TO WHAT CAN ONLY BE
CONSIDERED READILY SOLVABLE PROBLEMS CAUSED BY UNTRAINED PERSONNEL IN A
RELATIVELY SMALL OFFICE.  APPELLANTS PRESENTED NO EVIDENCE THAT
IMPROVEMENTS IN THE ADMINISTRATION OF THE DEPUTY REGISTRAR SYSTEM,
INCLUDING EARLIER RECRUITMENT AND BETTER TRAINING OF DEPUTY REGISTRARS
AND OF DATA-PROCESSING PERSONNEL IN THE CENTRAL OFFICES, COULD NOT BE
ADOPTED BEFORE THE NEXT ELECTION.  IF, AS WE HELD IN DUNN, THE STATE
"CANNOT CHOOSE MEANS WHICH UNNECESSARILY BURDEN OR RESTRICT
CONSTITUTIONALLY PROTECTED ACTIVITY," AND IF THE STATE MUST CARRY "A
HEAVY BURDEN OF JUSTIFICATION," 405 U.S.,AT 343, SURELY IT MUST SHOW
THAT IT CANNOT, BY BETTER ADMINISTRATION, ELIMINATE THE ERRORS THAT
JUSTIFIED A 50-DAY PERIOD IN 1972.  THE DISTRICT COURT, IN MY VIEW,
CORRECTLY CONCLUDED THAT "THE STATE HAS PRESENTED NO FACTS
DEMONSTRATING A COMPELLING INTERESTS" IN ITS 50-DAY REQUIREMENT. 

THE SECOND "COMPLICATING FACTOR" IS SAID TO BE THE BURDEN ON COUNTY
RECORDERS CAUSED BY THE NEED TO INTERRUPT THE PROCESSING OF AFFIDAVITS
FILED BY NEW REGISTRANTS IN ORDER FOR THEM TO WORK ON THE FALL
PRIMARIES.  HERE TOO THE APPELLANTS SHOWED NO NEED TO USE SMALL
STAFFS.  IT IS BY NO MEANS OBVIOUS THAT THE RECORDERS' STAFFS COULD NOT
BE INCREASED TEMPORARILY TO DEAL WITH THIS "COMPLICATION."  CERTAINLY
THAT IS A METHOD OF PROCESSING AFFIDAVITS WHICH LESS SERIOUSLY BURDENS
THE RIGHT TO VOTE.  "AND IF THERE ARE OTHER, REASONABLE WAYS TO ACHIEVE
THOSE GOALS WITH A LESSER BURDEN ON CONSTITUTIONALLY PROTECTED
ACTIVITY, A STATE MAY NOT CHOOSE THE WAY OF GREATER INTERFERENCE." 
DUNN V. BLUMSTEIN, SUPRA, AT 343. 

IN ADDITION, APPELLANTS HAVE ESTABLISHED A SYSTEM TO REGISTER VOTERS
FOR PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS, IN COMPLIANCE WITH
THE REQUIREMENT OF 42 U.S.C. 1973AA-1(D), THAT NO STATE MAY IMPOSE A
RESIDENCY REQUIREMENT OF GREATER THAN 30 DAYS FOR SUCH ELECTIONS.  IN
ARIZONA, THOSE VOTERS WHO QUALIFY FOR PRESIDENTIAL AND VICE
PRESIDENTIAL ELECTIONS, BUT NOT FOR STATE ELECTIONS, ARE GIVEN ABSENTEE
BALLOTS.  THIS ELIMINATES THE NECESSITY TO PREPARE A SEPARATE LIST OF
REGISTRATION LISTS.  ANY ADMINISTRATIVE PROBLEMS CAUSED BY THE
INABILITY TO CORRECT MISSPELLINGS, TO ALPHABETIZE THE LISTS, AND TO
DETERMINE IN WHICH PRECINCT THE VOTER LIVED-- THE ONLY DIFFICULTIES
WHICH APPELLANTS MENTIONED IN THEIR TESTIMONY /1/  -- COULD BE
ELIMINATED BY SIMILAR TREATMENT OF LATE REGISTRANTS FOR ALL ELECTIONS. 
AND IF THESE VOTERS DID NOT HAVE TO APPEAR AT THE POLLS, THE FEARS OF
DETERRING OTHER VOTERS BY DELAYS AT THE POLLING PLACES WOULD
DISAPPEAR. 

EVEN IF THE EVIDENCE BELOW ESTABLISHED THAT THE ADMINISTRATIVE
BURDENS OF A 30-DAY LIMITATION ON GENERAL REGISTRATION COULD NOT
POSSIBLY BE REMOVED, THAT WOULD NOT ITSELF JUSTIFY THE SAME LIMITATION
ON REGISTRATION OF NEWLY ARRIVED VOTERS.  GENERAL REGISTRATION
REQUIREMENTS AFFECT EVERY VOTER IN THE STATE.  DURATIONAL RESIDENCY
REQUIREMENTS AFFECT A MUCH SMALLER CLASS OF POTENTIAL VOTERS, AND THE
BURDENS OF REGISTERING THE MEMBERS OF THAT CLASS WILL THEREFORE BE
SIGNIFICANTLY SMALLER.  FURTHER, GENERAL REGISTRATION REQUIREMENTS,
WITH WHICH ANY OTHERWISE ELIGIBLE VOTER MAY COMPLY IF HE ACTS WITH
SUFFICIENT DILIGENCE, MIGHT BE THOUGHT TO IMPAIR LESS SUBSTANTIALLY THE
RIGHT TO VOTE THAN DO DURATIONAL RESIDENCY REQUIREMENTS, WHICH BAR A
NEWLY ARRIVED VOTER FROM ANY PARTICIPATION IN THE ELECTIONS.  SERIOUS
ADMINISTRATIVE PROBLEMS MIGHT JUSTIFY THE LESS SEVERE IMPAIRMENT, BUT A
TOTAL BAR TO PARTICIPATION CAN BE JUSTIFIED ONLY BY ADMINISTRATIVE
PROBLEMS OF THE HIGHEST ORDER. 

IN SHORT, THE EVIDENCE PRODUCED BELOW ABUNDANTLY SUPPORTS THE
DISTRICT COURT'S CONCLUSION THAT APPELLANTS HAD FAILED TO CARRY THE
HEAVY BURDEN OF JUSTIFYING THE 50-DAY LIMITATION PERIOD IN LIGHT OF
REASONABLY AVAILABLE AND LESS RESTRICTIVE ALTERNATIVES.  IF THIS COURT
HAS DRAWN A LINE BEYOND WHICH RELIANCE ON ADMINISTRATIVE INCONVENIENCE
IS EXTREMELY QUESTIONABLE, AS WE DID IN DUNN, WE CAN AVOID AN
UNPRINCIPLED NUMBERS GAME ONLY IF WE INSIST THAT ANY DEVIATIONS FROM
THE LINE WE HAVE DRAWN, AFTER MATURE CONSIDERATION, BE JUSTIFIED BY FAR
MORE SUBSTANTIAL EVIDENCE THAN THAT PRODUCED IN THE DISTRICT COURT BY
APPELLANTS.  I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE DISTRICT
COURT. 

/1/  APPELLANT MARSTON TESTIFIED THAT THERE WOULD BE DIFFICULTY IN
LOCATING THE PROPER PRECINCTS AND SCHOOL DISTRICTS FOR EACH
REGISTRANT.  AGAIN, THIS PERTAINS EXCLUSIVELY TO THE ELECTION IN 1972,
BECAUSE OF SEVERAL NONRECURRING FACTS:  THE STATE HAD RECENTLY
"CLEANSED" ITS VOTING LISTS, DROPPING EVERYONE FROM THE ROLLS AND
REQUIRING RE-REGISTRATION OF EVERY VOTER; THE STATE HAD JUST BEEN
REDISTRICTED; AND A STATUTE RESCHEDULING SCHOOL BOARD ELECTIONS CAUSED
TRANSITIONAL PROBLEMS.  DIFFICULTIES IN DETERMINING THE PROPER PRECINCT
FOR EACH VOTER COULD BE ELIMINATED BY A SIMPLE REPROGRAMMING OF THE
COMPUTER USED BY THE REGISTRARS.  NOW THE COMPUTER SIMPLY INDICATES AN
ERROR IF THE ADDRESS AND THE PRECINCT ENTERED ON THE REGISTRATION FORM
BY THE REGISTRARS ARE INCONSISTENT; IT WOULD NOT BE DIFFICULT FOR A
PROGRAMMER TO HAVE THE COMPUTER ITSELF FIND THE PROPER PRECINCT.  AND,
AS APPELLANT MARSTON TESTIFIED, HIS TASK WOULD NOT BE DIFFICULT AT ALL
IF HE USED AN "ON-LINE" SYSTEM OF PROCESSING THE CARDS THROUGH THE
COMPUTER RATHER THAN THE PRESENT "BATCH" SYSTEM. 
..END :





BURNS V. FORTSON, 410 U.S. 686 


       BURNS ET AL. V. FORTSON, SECRETARY OF STATE OF GEORGIA, ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA

        NO. 72-901.  DECIDED MARCH 19, 1973 


CLOSURE OF VOTER REGISTRATION 50 DAYS BEFORE NOVEMBER GENERAL
ELECTIONS FOR OTHER THAN PRESIDENTIAL ELECTIONS, ALTHOUGH APPROACHING
THE OUTER CONSTITUTIONAL LIMITS, CF. DUNN V. BLUMSTEIN, 405 U.S. 330,
IS PERMISSIBLE TO PROMOTE THE IMPORTANT INTEREST OF GEORGIA IN ACCURATE
VOTER LISTS.  MARSTON V. LEWIS, ANTE, P. 679. 

AFFIRMED. 

PER CURIAM. 

BY STATUTE, GEORGIA REGISTRARS ARE REQUIRED TO CLOSE THEIR VOTER
REGISTRATION BOOKS 50 DAYS PRIOR TO NOVEMBER GENERAL ELECTIONS, EXCEPT
FOR THOSE PERSONS WHO SEEK TO REGISTER TO VOTE FOR PRESIDENT OF VICE
PRESIDENT.  GA. CODE ANN. SECS. 34-611 AND 34-602.  /1/  THE DISTRICT
COURT UPHELD THE REGISTRATION CUTOFF AGAINST APPELLANTS' CONSTITUTIONAL
ATTACK BASED UPON THIS COURT'S DECISION IN DUNN V. BLUMSTEIN, 405 U.S.
330(1972).  THIS APPEAL FOLLOWED. 

THE STATE OFFERED EXTENSIVE EVIDENCE TO ESTABLISH "THE NEED FOR A 50
DAY REGISTRATION CUT-OFF POINT, GIVEN THE VAGARIES AND NUMEROUS
REQUIREMENTS OF THE GEORGIA ELECTION LAWS."  PLAINTIFFS INTRODUCED NO
EVIDENCE.  ON THE BASIS OF THE RECORD BEFORE IT, THE DISTRICT COURT
CONCLUDED THAT THE STATE HAD DEMONSTRATED "THAT THE 50-DAY PERIOD IS
NECESSARY TO PROMOTE . . . THE ORDERLY, ACCURATE, AND EFFICIENT
ADMINISTRATION OF STATE AND LOCAL ELECTIONS, FREE FROM FRAUD." 
ALTHOUGH THE 50-DAY REGISTRATION PERIOD APPROACHES THE OUTER
CONSTITUTIONAL LIMITS IN THIS AREA, WE AFFIRM THE JUDGMENT OF THE
DISTRICT COURT.  WHAT WAS SAID TODAY IN MARSTON V. LEWIS, ANTE, P. 679,
AT 681, IS APPLICABLE HERE: 

"IN THE PRESENT CASE, WE ARE CONFRONTED WITH A RECENT AND AMPLY
JUSTIFIABLE LEGISLATIVE JUDGMENT THAT 50 DAYS RATHER THAN 30 IS
NECESSARY TO PROMOTE THE STATE'S IMPORTANT INTEREST IN ACCURATE VOTER
LISTS.  THE CONSTITUTION IS NOT SO RIGID THAT THAT DETERMINATION AND
OTHERS LIKE IT MAY NOT STAND." 

THE JUDGMENT OF THE DISTRICT COURT IS

              AFFIRMED. 

/1/  SECTION 34-611 WAS ENACTED IN 1964.  AT PRESENT, GEORGIA HAS NO
INDEPENDENT DURATIONAL RESIDENCY REQUIREMENT.  THE STATE'S STATUTORY
REQUIREMENT OF ONE YEAR IN THE STATE AND SIX MONTHS IN THE COUNTY (SEE
GA. CODE ANN. SEC. 34-602) WAS HELD UNCONSTITUTIONAL IN ABBOTT V.
CARTER (NO. 15689, N.D. GA. 1972). 

MR. JUSTICE BLACKMUN, CONCURRING IN THE RESULT. 

I CONCUR ONLY IN THE RESULT, FOR I HESITATE TO JOIN WHAT, FOR ME, IS
THE COURT'S UNNECESSARY OBSERVATION THAT "THE 50-DAY REGISTRATION
PERIOD APPROACHES THE OUTER CONSTITUTIONAL LIMITS IN THIS AREA."  I
ALSO CONCURRED IN THE RESULT IN DUNN V. BLUMSTEIN, 405 U.S. 330(1972),
AND SAID, 

"IT IS, OF COURSE, A MATTER OF LINE DRAWING, AS THE COURT CONCEDES,
ANTE, AT 348.  BUT IF 30 DAYS PASS CONSTITUTIONAL MUSTER, WHAT OF 35 OR
45 OF 75?  THE RESOLUTION OF THESE LONGER MEASURES, LESS THAN THOSE
TODAY STRUCK DOWN, THE COURT LEAVES, I SUSPECT, TO THE FUTURE."  ID.,
AT 363.  I AM NOT PREPARED TO INTIMATE AT THIS POINT THAT A PERIOD OF
TIME IN EXCESS OF 50 DAYS CANNOT BE SUSTAINED, NO MATTER HOW SUPPORTIVE
THE RECORD MAY BE.  IN BLUMSTEIN, THE COURT STRUCK DOWN TENNESSEE'S 90
DAY COUNTY DURATIONAL RESIDENCY REQUIREMENT IN PART, I SUPPOSE, BECAUSE
IT EXCEEDED THE STATE'S 30-DAY REGISTRATION PERIOD.  HAD THE LATTER
BEEN 60 DAYS, RATHER THAN 30, I SUSPECT THE COURT WOULD HAVE INDICATED
APPROVAL OF A CORRESPONDING 60-DAY DURATIONAL RESIDENCY REQUIREMENT. 
SEE 405 U.S.,AT 345-349.  I FEEL THAT EACH CASE IN THIS AREA SHOULD BE
DECIDED ON ITS OWN RECORD UNRESTRICTED BY AN ARBITRARY NUMBER-OF-DAYS
FIGURE. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

FOR THE SAME REASONS THAT I GAVE IN MARSTON V. LEWIS, ANTE P. 682, I
DISSENT FROM THE AFFIRMANCE OF THE JUDGMENT OF THE DISTRICT COURT. 
UNLIKE ARIZONA, GEORGIA DOES NOT USE VOLUNTEER DEPUTY REGISTRARS, A
SYSTEM THAT THE COURT IN MARSTON THOUGHT CREATED SPECIAL PROBLEMS
WARRANTING SPECIAL TREATMENT.  INDEED, THE STATE'S EXPERT WITNESS IN
THIS CASE TESTIFIED THAT THERE WAS SOMETHING DANGEROUS ABOUT USING
DEPUTY REGISTRARS.  NOR DOES GEORGIA HAVE AS LATE A PRIMARY AS
ARIZONA.  AS IN MARSTON, APPELLEES HERE DID NOT SHOW THAT IT WAS
IMPOSSIBLE TO INCREASE THE SIZE OF THE REGISTRARS' STAFFS OR THE
EFFICIENCY OF THEIR OPERATIONS.  MOREOVER, THERE WAS EVIDENCE THAT
FINAL LISTS OF REGISTERED VOTERS ARE NOT PREPARED UNTIL 14 DAYS BEFORE
THE ELECTION, WHICH INDICATES THAT THERE IS NO SERIOUS ADMINISTRATIVE
IMPEDIMENT TO KEEPING REGISTRATION OPEN FOR A RELATIVELY LONG PERIOD. 

THE COURT ALSO RELIES ON AN INGENIOUS BOOTSTRAP ARGUMENT THAT I
CANNOT LET PASS WITHOUT COMMENT.  THE STATUTES IN QUESTION IN MARSTON
WERE ENACTED LAST YEAR AFTER OUR DECISION IN DUNN V. BLUMSTEIN, 405
U.S. 330 (1972).  THE ARIZONA LEGISLATURE THEREFORE KNEW THAT ITS
LIMITATIONS ON REGISTRATION COULD ONLY BE JUSTIFIED BY THE
ADMINISTRATIVE BURDENS FACED BY REGISTRARS.  IT KNEW THAT INSURING THE
PURITY OF THE BALLOT BOX AND GUARANTEEING THE KNOWLEDGEABILITY OF
VOTERS WERE NOT GOALS THAT COULD BE PERMISSIBLY SERVED BY TIME
LIMITATIONS ON REGISTRATION.  ID., AT 353-357.  THE COURT IN MARSTON
THUS CORRECTLY NOTED THAT THE ARIZONA STATUTES REFLECTED A RECENT
JUDGMENT THAT 50 DAYS WERE NECESSARY TO AVOID ADMINISTRATIVE PROBLEMS. 

IN THIS CASE, THE COURT QUOTES THAT STATEMENT FROM MARSTON.  THE
DIFFICULTY IS THAT THE GEORGIA STATUTES HERE WERE ADOPTED NEARLY A
DECADE AGO.  THE LEGISLATIVE JUDGMENT IS HARDLY A RECENT ONE.  NOR WAS
IT MADE KNOWING THAT ONLY ADMINISTRATIVE DIFFICULTIES WERE A
JUSTIFICATION FOR DURATIONAL RESIDENCY REQUIREMENTS.  EVEN IF WE WOULD
BE INCLINED TO DEFER TO A RECENT AND INFORMED LEGISLATIVE DETERMINATION
OF NECESSITY, WHEN THERE IS NO REASON TO BELIEVE THAT THE LEGISLATURE
MADE SUCH A DETERMINATION, DEFERENCE IN THAT REGARD IS UNCALLED FOR. 

FINALLY, I BELIEVE IT IMPORTANT TO INDICATE MY VIEW THAT THE
DECISIONS TODAY PROVIDE NO BASIS FOR MAKING IT MORE DIFFICULT TO
REGISTER BY MAKING SHORTER ANY EXISTING REGISTRATION PERIODS, IN THE
ABSENCE OF COMPELLING EVIDENCE OF EXTRAORDINARY NEW CIRCUMSTANCES.  IF
30 DAYS WERE ALL THAT SOME STATE OFFICIALS NEEDED YESTERDAY, THAT IS
ALL THEY NEED TODAY. 
..END :













LAVALLEE V. DELLE ROSE, 410 U.S. 690 


       LAVALLEE, CORRECTIONAL SUPERINTENDENT V. DELLE ROSE

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SECOND CIRCUIT

        NO. 72-905.  DECIDED MARCH 19, 1973 


RESPONDENT'S CONVICTION FOR MURDER WAS BASED ON HIS TWO CONFESSIONS
THAT, IN SUBSEQUENT NEW YORK COURT PROCEEDINGS, WERE FOUND TO HAVE BEEN
VOLUNTARY.  IN FEDERAL HABEAS CORPUS PROCEEDINGS, THE DISTRICT COURT,
FEELING UNABLE TO ACCORD THE STATE COURT THE PRESUMPTION OF CORRECTNESS
BECAUSE THE STATE TRIAL JUDGE DID NOT ARTICULATE TO WHAT EXTENT HE
CREDITED OR REJECTED EVIDENCE AND RESPONDENT'S TESTIMONY, HELD ITS OWN
HEARING, FOUND BOTH CONFESSIONS INVOLUNTARY, AND ORDERED RESPONDENT
DISCHARGED FROM CUSTODY UNLESS HE WAS RETRIED WITHOUT THE CONFESSIONS. 
THE COURT OF APPEALS AFFIRMED ON THE GROUND THAT THE STATE COURT'S
FACTUAL DETERMINATION ON THE VOLUNTARINESS ISSUE DID NOT MEET THE 28
U.S.C. 2254(D)(1) REQUIREMENT THAT IT BE ACCORDED A PRESUMPTION OF
CORRECTNESS UNLESS IT APPEARED THAT THE MERITS OF THE FACTUAL DISPUTE
WERE NOT RESOLVED IN THE STATE COURT HEARING.  HELD:  THE STATE TRIAL
JUDGE'S DETERMINATION, ON THE TOTALITY OF THE CIRCUMSTANCES, EVIDENCES
THAT HE APPLIED CORRECT VOLUNTARINESS STANDARDS AND, SINCE THE DISTRICT
COURT COULD HAVE BEEN REASONABLY CERTAIN THAT HE WOULD HAVE GRANTED
RELIEF IF HE HAD BELIEVED RESPONDENT'S TESTIMONY, THE COURTS BELOW
ERRONEOUSLY CONCLUDED THAT THE OPINION OF THE TRIAL COURT DID NOT MEET
THE REQUIREMENTS OF SEC. 2254(D)(1). 

CERTIORARI GRANTED; 468 F.2D 1288, REVERSED AND REMANDED. 

PER CURIAM. 

THE STATE OF NEW YORK PETITIONS FOR CERTIORARI TO REVIEW THE ADVERSE
DETERMINATION OF THE COURT OF APPEALS IN THIS FEDERAL HABEAS CORPUS
PROCEEDING DIRECTING THE RELEASE /1/  OF RESPONDENT PASQUALE DELLE
ROSE.  DELLE ROSE WAS SERVING A LIFE SENTENCE FOR THE PREMEDITATED
MURDER OF HIS WIFE IN 1963.  AT HIS TRIAL, OCCURRING BEFORE JACKSON V.
DENNO, 378 U.S. 368(1964), RESPONDENT WAS CONVICTED BY A JURY WHICH
CHOSE TO CREDIT HIS TWO CONFESSIONS OVER HIS PROTESTATION OF ACCIDENTAL
INVOLVEMENT, AND WHICH PRESUMABLY FOUND THEM TO BE VOLUNTARY.  ON
APPEAL, THE NEW YORK APPELLATE COURT DIRECTED THE TRIAL COURT TO HOLD A
SPECIAL HEARING TO DETERMINE THE VOLUNTARINESS OF HIS CONFESSIONS IN
ACCORDANCE WITH PEOPLE V. HUNTLEY, 15 N.Y.2D 72, 204 N.E.2D 179(1965),
THE STATE'S PROCEDURAL RESPONSE TO THIS COURT'S DECISION IN JACKSON V.
DENNO, SUPRA. 

ON REMAND TO THE TRIAL COURT, THE STATE RESTED ON THE TRIAL RECORD,
AND THE RESPONDENT, IN ADDITION TO RELYING ON THE RECORD, TESTIFIED IN
HIS OWN BEHALF.  AFTER EXTENSIVELY SUMMARIZING THE TRIAL EVIDENCE AND
RESPONDENT'S EXPLANATIONS OF CERTAIN OF HIS CONFESSION STATEMENTS, THE
COURT CONCLUDED: 

     "ON ALL EVIDENCE, BOTH AT THE TRIAL AND AT THE HEARING, AND

  AFTER CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES, INCLUDING

  THE OMISSION TO WARN DEFENDANT OF HIS RIGHT TO COUNSEL AND HIS

  RIGHT AGAINST SELF-INCRIMINATION, I FIND AND DECIDE THAT THE

 RESPECTIVE CONFESSIONS TO THE POLICY AND DISTRICT ATTORNEY WERE,

  IN ALL RESPECTS, VOLUNTARY AND LEGALLY ADMISSIBLE IN EVIDENCE AT

  THE TRIAL.  . . . "

ON THIS BASIS, RESPONDENT'S CONVICTION WAS AFFIRMED BY THE NEW YORK
APPELLATE COURTS, 33 APP.DIV.2D 657, 27 N.Y.2D 882, 265 N.E.2D
770(1970), AND THIS COURT DENIED CERTIORARI, 402 U.S. 913(1971). 

RESPONDENT THEN PETITIONER THE UNITED STATES DISTRICT COURT FOR A
WRIT OF HABEAS CORPUS ALLEGING HIS CONFESSIONS WERE INVOLUNTARY.  THAT
COURT HELD THAT SINCE THE STATE TRIAL JUDGE HAD "NEGLECTED TO SAY HOW
FAR HE CREDITED-- AND TO WHAT EXTENT, IF ANY, HE DISCOUNTED OR
REJECTED" RESPONDENT'S TESTIMONY AND THE EVIDENCE BEFORE HIM, THERE WAS
NO "ADEQUATE" DETERMINATION WITHIN THE MEANING OF 28 U.S.C. 2254(D),
WHICH WOULD HAVE ENTITLED THE STATE COURT'S FINDINGS TO A PRESUMPTION
OF CORRECTNESS AND PLACED ON RESPONDENT THE BURDEN OF ESTABLISHING BY
CONVINCING EVIDENCE THAT THE STATE COURT'S CONCLUSION WAS ERRONEOUS. 
THE DISTRICT COURT THEREFORE HELD ITS OWN HEARING, FOUND BOTH
CONFESSIONS INVOLUNTARY, AND ORDERED RESPONDENT DISCHARGED FROM CUSTODY
UNLESS RETRIED.  A DIVIDED PANEL OF THE SECOND CIRCUIT AFFIRMED. 

THE COURT OF APPEALS HELD THAT THE STATE COURT'S OPINION DID NOT
MEET THE REQUISITES OF 28 U.S.C. 2254(D) WHICH PROVIDES IN RELEVANT
PART: 

"(A) DETERMINATION AFTER A HEARING ON THE MERITS OF A FACTUAL ISSUE,
MADE BY A STATE COURT OF COMPETENT JURISDICTION . . . EVIDENCED BY A
WRITTEN FINDING, WRITTEN OPINION, OR OTHER RELIABLE AND ADEQUATE
WRITTEN INDICIA, SHALL BE PRESUMED TO BE CORRECT, UNLESS THE APPLICANT
SHALL ESTABLISH OR IT SHALL OTHERWISE APPEAR . . . -- 

     "(1) THAT THE MERITS OF THE FACTUAL DISPUTE WERE NOT RESOLVED

  IN THE STATE COURT HEARING.  . . . "

ALTHOUGH IT IS TRUE THAT THE STATE TRIAL COURT DID NOT SPECIFICALLY
ARTICULATE ITS CREDIBILITY FINDINGS, IT CAN SCARCELY BE DOUBTED FROM
ITS WRITTEN OPINION THAT RESPONDENT'S FACTUAL CONTENTIONS WERE RESOLVED
AGAINST HIM. 

RESPONDENT'S WIFE WAS KILLED BY A BLAST FROM A SAWED-OFF SHOTGUN
DEVICE WHICH HAD BEEN SET TO SHOOT THROUGH THE BACK OF THEIR FRONT CAR
SEAT.  HIS CONFESSIONS INDICATED THAT BECAUSE OF EXTREME JEALOUSY, HE
RIGGED THE DEVICE TO GO OFF WHEN HIS WIFE PULLED THE CAR SEAT FORWARD. 
FOR SOME REASON IT FAILED INITIALLY; SO WHEN HE WAS SEATED WITH HER IN
THE CAR, HE OPERATED IT BY HAND.  AT TRIAL, HE CLAIMED HIS CONFESSIONS
WERE FALSE AND TESTIFIED THAT HE WAS SEATED IN THE CAR WITH HIS WIFE
AND HE NOTICED A LUMP ON THE FLOOR BEHIND THE FRONT SEAT.  WHEN HE
REACHED DOWN TO INVESTIGATE, IT SHOT HER. 

AT TRIAL, IN SUPPORT OF HIS THEORY OF RELENTLESS QUESTIONING AND
POLICE COERCION, RESPONDENT PRESENTED EVIDENCE TO THE EFFECT THAT, AT
THE TIME OF HIS CONFESSIONS, 

"HE HAD HAD A BACK INJURY, AND THEREFORE WAS IN PAID; THAT HE WAS
TAKEN TO THE GARAGE AND ASKED TO PUT HIS HAND IN THE BACK SEAT WHERE
THE BLOOD OF HIS WIFE WAS; THAT THE POLICY THREATENED TO BEAT HIM UP IF
HE DID NOT ADMIT HE KILLED HER; THAT HE WAS COMPELLED TO SAY BY THE
POLICE THAT HE HAD KILLED HIS WIFE BUT THAT WHAT HE MEANT WAS THAT HE
HAD SO INADVERTENTLY, BY PLACING HIS HAND OVER THE LUMP; AND THAT,
AFTER TELLING THE OFFICER HE WANTED TO SEE HIS WIFE, HE DID NOT
REMEMBER WHAT HAPPENED THEREAFTER UNTIL 9:00 O'CLOCK IN THE MORNING." 
IN ADDITION, AT HIS "HUNTLEY" HEARING, HE TESTIFIED THAT THE OFFICERS
TOLD HIM THEY WOULD BEAT HIM UP IF HE DID NOT TALK TO THEM; THAT ONE OF
THE DETECTIVES TOLD HIM TO PUT HIS HANDS IN THE FRONT SEAT HOLE WHERE
HIS WIFE'S BLOOD WAS AND WHEN HE DID NOT, THE DETECTIVE TOOK HIS HANDS
AND PUT THEM THERE HIMSELF; AND THAT HE DID NOT REMEMBER ANYTHING PAST
THE TIME WHEN HE ASKED TO SEE HIS WIFE AT THE MORGUE, INCLUDING THE
GIVING OF THE SECOND STATEMENT.  HE ALSO ATTEMPTED TO EXPLAIN THE
REASONS FOR HIS GIVING SUCH DETAILED AND FACTUALLY ACCURATE CONFESSION
STATEMENTS. 

THE TRIAL COURT'S SUMMARY OF THE STATE'S EVIDENCE TENDED TO SHOW THAT
ALTHOUGH RESPONDENT HAD BEEN TAKEN TO THE STATION HOUSE ABOUT 5 P.M. ON
THE DAY OF THE MURDER, HE WAS NOT EVEN A SUSPECT AS LATE AS 9 P.M., AND
HE WAS ONLY GIVING INFORMATION.  HE WAS TAKEN TO THE MORGUE AT HIS OWN
REQUEST, A FACTOR WHICH TRIGGERED THE FIRST CONFESSION.  FURTHER, HE
HAD BEEN ALLOWED TO SIT WITH HIS FAMILY, WAS GIVEN COFFEE BY HIS MOTHER
IN-LAW AND POLICE, AND HE ADMITTED THAT HIS TREATMENT BY THE POLICE WAS
GOOD DURING THE TIME OF THE QUESTIONING.  THERE WAS ALSO TESTIMONY THAT
HE HAD BEEN OFFERED FOOD, BUT AS HE ADMITTED, HE WAS NOT HUNGRY.  AGAIN
AT THE "HUNTLEY" HEARING, HE ACKNOWLEDGE THAT THE POLICE HAD TREATED
HIM "NICE."  IT WAS "ON THIS EVIDENCE" THAT THE STATE TRIAL COURT MADE
ITS FINDING AND CONCLUSION THAT THE CONFESSIONS WERE VOLUNTARY. 

THE COURT OF APPEALS STATED THAT IT COULD NOT TELL WHETHER THE STATE
COURTS "CREDITED DELLE ROSE'S STORY OF THE CIRCUMSTANCES SURROUNDING
HIS CONFESSIONS BUT STILL HELD THESE TO HAVE BEEN VOLUNTARY, A
CONCLUSION TO WHICH WE COULD NOT AGREE, OR BASED THEIR HOLDING OF
VOLUNTARINESS ON A PARTIAL OR COMPLETE REJECTION OF HIS TESTIMONY, IN
WHICH EVENT THE DISTRICT JUDGE WOULD HAVE BEEN BOUND TO DENY THE
PETITION."  468 F.2D 1288, 1290.  IN TOWNSEND V. SAIN, 372 U.S. 293,
314-315(1963), THE PRECURSOR OF 28 U.S.C. 2254(D), THIS COURT SET FORTH
GENERAL STANDARDS GOVERNING THE HOLDING OF HEARINGS ON FEDERAL HABEAS
PETITIONS, STATING: 

"(THE POSSIBILITY OF LEGAL ERROR MAY BE ELIMINATED IN MANY
SITUATIONS IF THE FACT FINDER HAS ARTICULATED THE CONSTITUTIONAL
STANDARDS WHICH HE HAS APPLIED.  FURTHERMORE, THE COEQUAL
RESPONSIBILITIES OF STATE AND FEDERAL JUDGES IN THE ADMINISTRATION OF
FEDERAL CONSTITUTIONAL LAW ARE SUCH THAT WE THINK THE DISTRICT JUDGE
MAY, IN THE ORDINARY CASE IN WHICH THERE HAS BEEN NO ARTICULATION,
PROPERLY ASSUME THAT THE STATE TRIER OF FACT APPLIED CORRECT STANDARDS
OF FEDERAL LAW TO THE FACTS, IN THE ABSENCE OF EVIDENCE . . . THAT
THERE IS REASON TO SUSPECT THAT AN INCORRECT STANDARD WAS IN FACT
APPLIED.  THUS, IF THIRD-DEGREE METHODS OF OBTAINING A CONFESSION ARE
ALLEGED AND THE STATE COURT REFUSED TO EXCLUDE THE CONFESSION FROM
EVIDENCE, THE DISTRICT JUDGE MAY ASSUME THAT THE STATE TRIER FOUND THE
FACTS AGAINST THE PETITIONER, THE LAW BEING, OF COURSE, THAT THIRD
DEGREE METHODS NECESSARILY PRODUCE A COERCED CONFESSION."  HERE, NOT
ONLY IS THERE NO EVIDENCE THAT THE STATE TRIER UTILIZED THE WRONG
STANDARD, BUT THERE IS EVERY INDICATION HE APPLIED THE CORRECT
STANDARDS.  HIS DETERMINATION WAS MADE ON THE "TOTALITY OF THE
CIRCUMSTANCES" AND, IN THIS PRE-ESCOBEDO V. ILLINOIS, 378 U.S.
478(1964), PRE-MIRANDA V. ARIZONA, 384 U.S. 346(1966), SITUATION, THE
COURT ALSO CONSIDERED THE FACTS THAT RESPONDENT WAS NOT WARNED OF HIS
RIGHTS TO THE ASSISTANCE OF COUNSEL AND AGAINST SELF-INCRIMINATION
BEFORE CONFESSING.  AND WE QUITE AGREE WITH THE DISTRICT COURT'S
STATEMENT THAT IT COULD NOT GO ALONG WITH THE STATE TRIAL COURT'S
CONCLUSION OF VOLUNTARINESS IF IT "WERE TO FIND THE FACTS TO HAVE BEEN
AS PETITIONER'S (DELLE ROSE'S) TESTIMONY PORTRAYED THEM."  SEE, E.G.,
SPANO V. NEW YORK, 360 U.S. 315(1959); WATTS V. INDIANA, 338 U.S.
49(1949).  UNDER THESE CIRCUMSTANCES, WE THINK THE DISTRICT COURT COULD
HAVE BEEN REASONABLY CERTAIN THAT THE STATE COURT WOULD HAVE GRANTED
RELIEF IF IT HAD BELIEVED RESPONDENT'S ALLEGATIONS.  SEE TOWNSEND V.
SAIN, SUPRA, AT 315. 

WE, THEREFORE, HOLD THAT THE OPINION OF THE STATE TRIAL COURT MET
THE REQUIREMENTS OF 28 U.S.C. 2254(D)(1), AND THAT THE COURTS BELOW
INCORRECTLY DETERMINED IT DID NOT.  THE BURDEN WAS THUS ON RESPONDENT
TO ESTABLISH IN THE DISTRICT COURT BY CONVINCING EVIDENCE THAT THE
STATE COURT'S DETERMINATION WAS ERRONEOUS.  THE MOTION OF THE
RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR
CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

/1/  RESPONDENT WAS ORDERED RELEASED UNLESS RETRIED WITHIN 60 DAYS
WITHOUT THE USE OF HIS CONFESSIONS. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE STEWART CONCUR, DISSENTING. 

ALTHOUGH I AM IN COMPLETE DISAGREEMENT WITH THIS COURT'S PER CURIAM
DECISION HEREIN, I SEE NO REASON TO SET THIS CASE FOR ORAL ARGUMENT IN
LIGHT OF THE MAJORITY'S FIRMLY HELD VIEWS. 

I CANNOT ACCEPT THE COURT'S HOLDING THAT BOTH THE DISTRICT COURT AND
THE COURT OF APPEALS IMPROPERLY CONCLUDED THAT THE VOLUNTARINESS OF
RESPONDENT'S CONFESSIONS WAS NOT ADEQUATELY RESOLVED BY THE STATE TRIAL
COURT, THEREBY RELIEVING RESPONDENT OF THE OBLIGATION TO ESTABLISH "BY
CONVINCING EVIDENCE THAT THE FACTUAL DETERMINATION BY THE STATE COURT
WAS ERRONEOUS," 28 U.S.C. 2254(D).  THE COURT DOES NOT DENY THAT THE
STATE TRIAL COURT JUDGE, AFTER SUMMARIZING THE RECORD EVIDENCE AND
RESPONDENT'S TESTIMONY ON THE QUESTION OF VOLUNTARINESS, UTTERLY FAILED
TO EXPLAIN THE BASIS FOR HIS CONCLUSION THAT "CONSIDERING THE TOTALITY
OF CIRCUMSTANCES . . . THE RESPECTIVE CONFESSIONS TO THE POLICY AND
DISTRICT ATTORNEY WERE, IN ALL RESPECTS, VOLUNTARY AND LEGALLY
ADMISSIBLE IN EVIDENCE AT THE TRIAL.  . . . "  DESPITE THIS ABSENCE OF
ANY REASONED EXPLANATION FOR THE STATE COURT'S ACTION, THE COURT NOW
ASSURES US THAT "IT CAN SCARCELY BE DOUBTED FROM ITS WRITTEN OPINION
THAT RESPONDENT'S FACTUAL CONTENTIONS WERE RESOLVED AGAINST HIM." 
ANTE, AT 692.  I COULD NOT DISAGREE MORE, AND THEREFORE I MUST
RESPECTFULLY DISSENT. 

FOREMOST, THE COURT'S CERTAINTY AS TO THE BASIS FOR THE STATE
COURT'S ACTION RESTS UPON THE FACT THAT IT IS CLEAR THE STATE COURT
"APPLIED" THE CORRECT LEGAL STANDARD IN EVALUATING THE VOLUNTARINESS OF
RESPONDENT'S CONFESSION.  WITHOUT QUESTION, THE STATE COURT IN THIS
CASE RITUALISTICALLY RECITED THE STANDARD OF "TOTALITY OF THE
CIRCUMSTANCES" WHICH GOVERNS THE DETERMINATION OF VOLUNTARINESS WITH
RESPECT TO THESE 1963 CONFESSIONS.  SEE, E.G., CLEWIS V. TEXAS, 386
U.S. 707, 708(1967).  BUT THIS RECITATION IN ITSELF PROVIDED THE COURTS
BELOW WITH NO GUARANTEE THAT THE STATE COURT HAD NOT ERRONEOUSLY
APPLIED THIS STANDARD TO THE FACTS OF THIS CASE, PERHAPS ACCEPTING
RESPONDENT'S VERSION OF THE CIRCUMSTANCES SURROUNDING THE CONFESSION,
RATHER THAN REJECTING RESPONDENT'S VERSION AS INCREDIBLE.  THUS, THE
ABLE DISTRICT JUDGE NOTED THAT "(THIS COURT CANNOT BE 'REASONABLY
CERTAIN' WHAT FACTS OF POSSIBLY COERCIVE OR STRESSFUL IMPACT THE TRIAL
JUDGE FOUND FROM THE DISPUTED TESTIMONY" INTRODUCED BEFORE HIM.  342
F.SUPP.  567, 570. 

THE COURT, HOWEVER, PLACES HEAVY RELIANCE UPON OUR PRIOR STATEMENT
IN TOWNSEND V. SAIN, 372 U.S. 293, 314-315(1963), THE SOURCE OF THE
TEST SET FORTH IN SEC. 2254(D)(1), THAT "THE DISTRICT JUDGE MAY, IN THE
ORDINARY CASE IN WHICH THERE HAS BEEN NO ARTICULATION, PROPERLY ASSUME
THAT THE STATE TRIER OF FACT APPLIED CORRECT STANDARDS OF FEDERAL LAW
TO THE FACTS, IN THE ABSENCE OF EVIDENCE . . . THAT THERE IS REASON TO
SUSPECT THAT AN INCORRECT STANDARD WAS IN FACT APPLIED.  THUS, IF THIRD
DEGREE METHODS OF OBTAINING A CONFESSION ARE ALLEGED AND THE STATE
COURT REFUSED TO EXCLUDE THE CONFESSION FROM EVIDENCE, THE DISTRICT
JUDGE MAY ASSUME THAT THE STATE TRIER OF FACT FOUND THE FACTS AGAINST
THE PETITIONER, THE LAW BEING, OF COURSE, THAT THIRD-DEGREE METHODS
NECESSARILY PRODUCE A COERCED CONFESSION."  /1/  BUT THIS IS HARDLY THE
LIMIT OF THE INQUIRY-- CONTEMPLATED BY TOWNSEND AND SEC. 2254(D)-- INTO
WHETHER A STATE COURT HAS ADEQUATELY RESOLVED THE FACTUAL ISSUES
PRESENTED BY THE CONSTITUTIONAL CLAIM. 

"(EVEN IF IT IS CLEAR THAT THE STATE TRIER OF FACT UTILIZED THE
PROPER STANDARD, A HEARING IS SOMETIMES REQUIRED IF HIS DECISION
PRESENTS A SITUATION IN WHICH THE 'SO-CALLED FACTS AND THEIR
CONSTITUTIONAL SIGNIFICANCE (ARE) . . . SO BLENDED THAT THEY CANNOT BE
SEVERED IN CONSIDERATION.'  . . . UNLESS THE DISTRICT JUDGE CAN BE
REASONABLY CERTAIN THAT THE STATE TRIER WOULD HAVE GRANTED RELIEF IF HE
HAD BELIEVED PETITIONER'S ALLEGATIONS, HE CANNOT BE SURE THAT THE STATE
TRIER IN DENYING RELIEF DISBELIEVED THESE ALLEGATIONS.  IF ANY
COMBINATION OF THE FACTS ALLEGED WOULD PROVE A VIOLATION OF
CONSTITUTIONAL RIGHTS AND THE ISSUE OF LAW ON THOSE FACTS PRESENTS A
DIFFICULT OR NOVEL PROBLEM FOR DECISION, ANY HYPOTHESIS AS TO THE
RELEVANT FACTUAL DETERMINATIONS OF THE STATE TRIER INVOLVES THE PUREST
SPECULATION.  THE FEDERAL COURT CANNOT EXCLUDE THE POSSIBILITY THAT THE
TRIAL JUDGE BELIEVED FACTS WHICH SHOWED A DEPRIVATION OF CONSTITUTIONAL
RIGHTS AND YET (ERRONEOUSLY) CONCLUDED THAT RELIEF SHOULD BE DENIED. 
UNDER THESE CIRCUMSTANCES IT IS IMPOSSIBLE FOR THE FEDERAL COURT TO
RECONSTRUCT THE FACTS, AND A HEARING MUST BE HELD."  TOWNSEND V. SAIN,
SUPRA, AT 315-316. 

THE PRECISE PROBLEM ENCOUNTERED BY THE COURTS BELOW IN EVALUATING
THE STATE COURT'S CONCLUSION-- A PROBLEM WHICH THE COURT NOW
EFFECTIVELY IGNORES-- IS THAT THE ISSUE OF VOLUNTARINESS IN THIS CASE
PRESENTS JUST THE SORT OF "DIFFICULT" MIXED QUESTION OF LAW AND FACT
WHICH TOWNSEND RECOGNIZED WOULD MAKE FEDERAL COURT SPECULATION
CONCERNING THE BASIS FOR UNREASONED STATE COURT ACTION WHOLLY
INAPPROPRIATE.  TO BE SURE, WHERE, FOR INSTANCE, A DEFENDANT ALLEGES
SIMPLY THAT A CONFESSION WAS EXTRACTED FROM HIM BY MEANS OF A PHYSICAL
BEATING ADMINISTERED BY THE POLICE, IS IS OBVIOUS THAT IF THE
DEFENDANT'S STORY IS BELIEVED, THE CONFESSION WOULD BE INVOLUNTARY. 
THUS, EVEN IF A STATE COURT HOLDS THE DEFENDANT'S CONFESSION TO BE
VOLUNTARY WITHOUT ARTICULATING ANY REASONS, A FEDERAL DISTRICT COURT
MAY SAFELY ASSUME THAT IN SUCH AN UNCOMPLICATED SITUATION THE STATE
COURT'S DETERMINATION RESULTED FROM A REJECTION OF THE DEFENDANT'S
FACTUAL ALLEGATIONS.  BUT IT CAN HARDLY BE ARGUED THAT THIS CASE
INVOLVES ALLEGATIONS OF THE TYPE OF STRAIGHTFORWARD POLICE "THIRD
DEGREE METHODS OF OBTAINING A CONFESSION" WHICH THE TOWNSEND COURT
SUGGESTED WOULD ENTAIL LITTLE POSSIBILITY OF MISAPPLICATION OF THE
RELEVANT LEGAL STANDARD SO THAT A DISTRICT COURT MIGHT, WITH REASONABLE
CONFIDENCE, ASSUME THAT AN UNEXPLAINED STATE COURT FINDING OF
VOLUNTARINESS RESTS UPON A REJECTION OF THE DEFENDANT'S VERSION OF THE
INTERROGATION, NOT UPON CONSTITUTIONAL ERROR.  FOR A REVIEW OF THE
STATE COURT'S OPINION FOLLOWING THE "HUNTLEY" HEARING REVEALS THAT HERE
THE STATE COURT WAS CONFRONTED, NOT WITH AN ALLEGATION OF A SINGLE
COERCIVE INCIDENT WHICH, IF BELIEVED, WOULD CLEARLY HAVE RESULTED IN A
FINDING OF INVOLUNTARINESS, BUT RATHER WITH ALLEGATIONS OF A SERIES OF
COERCIVE POLICE ACTIONS APPLIED TO A PARTICULARLY SUSCEPTIBLE SUSPECT. 

RESPONDENT CLAIMED THAT HE WAS HELD AND INTERROGATED, APPARENTLY
WITHOUT REST, FROM 5 P.M. ON THE DAY OF THE MURDER UNTIL SOMETIME EARLY
THE NEXT MORNING.  THROUGHOUT THIS TIME, RESPONDENT PURPORTEDLY WAS
SUFFERING PAIN DUE TO A SERIOUS BACK AILMENT AND WAS UNDOUBTEDLY
HANDICAPPED BY HIS LACK OF FACILITY WITH THE ENGLISH LANGUAGE. 
MEANWHILE, WITHOUT ANY WARNINGS AS TO HIS CONSTITUTIONAL RIGHTS, HE WAS
QUESTIONED REPEATEDLY BY POLICE OFFICERS, QUESTIONING WHICH ALLEGEDLY
INCLUDED PHYSICAL THREATS IF HE REFUSED TO CONFESS.  DURING THIS
PROCESS, RESPONDENT WAS COMPELLED BY THE POLICE TO RE-ENACT THE ALLEGED
MURDER OF HIS WIFE COMPLETE WITH HIS HAND BEING FORCED BY A POLICE
OFFICER INTO THE TORN SEAT BACK WHICH WAS WET WITH HIS WIFE'S BLOOD. 
THEN THE POLICE OFFERED TO TAKE RESPONDENT ON WHAT THE DISTRICT COURT
PROPERLY DESCRIBED AS A "MACABRE" VISIT TO THE MORGUE TO SEE HIS DEAD
WIFE'S BODY.  THERE THE POLICE OBTAINED THE FIRST CONFESSION. 
SUBSEQUENTLY, FURTHER QUESTIONING BY AN ASSISTANT DISTRICT ATTORNEY
PRODUCED A SECOND CONFESSION AT ABOUT 6 A.M.  A DEFENSE PSYCHIATRIST
TESTIFIED AT THE TRIAL THAT RESPONDENT WAS, IN HIS OPINION, SO
EXHAUSTED FORM HIS LONG ORDEAL AT THE HANDS OF THE POLICE THAT "HE
WOULD SAY YES IF YOU ASKED HIM IF THE MOON WERE MADE OF GREEN CHEESE." 

IT IS POSSIBLE, OF COURSE, THAT THE STATE COURT REJECTED ALL OF
RESPONDENT'S TESTIMONY AS INCREDIBLE AND THEREFORE PROPERLY HELD THE
CONFESSIONS VOLUNTARY.  ON THE OTHER HAND, IF THE STATE COURT HAD
BELIEVED ALL OF RESPONDENT'S CONTENTIONS, IT WOULD UNDOUBTEDLY HAVE
FOUND THE CONFESSIONS INVOLUNTARY.  THERE REMAINS, HOWEVER, THE THIRD
POSSIBILITY THAT THE STATE COURT BELIEVED SOME OF RESPONDENT'S
CONTENTIONS AND REJECTED OTHERS.  IT IS THIS LAST POSSIBILITY THAT
MAKES FOR SUBSTANTIAL UNCERTAINTY IN A FACTUALLY COMPLEX CASE SUCH AS
THIS AS TO WHETHER THE STATE COURT CORRECTLY APPLIED THE ABSTRACT LEGAL
STANDARD AND DID NOT, INSTEAD, COMMIT CONSTITUTIONAL ERROR.  DUE TO THE
UNREVEALING NATURE OF THE STATE COURT'S DECISION, IT IS IMPOSSIBLE TO
SAY THAT THAT COURT MAY NOT HAVE CREDITED A SUFFICIENT PORTION OF
RESPONDENT'S STORY TO ESTABLISH, UNDER THE CONTROLLING STANDARD, THE
INVOLUNTARINESS OF HIS CONFESSIONS AND NEVERTHELESS HAVE REACHED AN
ERRONEOUS CONCLUSION OF VOLUNTARINESS BECAUSE THE QUESTION MAY HAVE
BEEN A CLOSE ONE ON THE FACTS THAT IT ACCEPTED.  IT IS THIS INHERENT
UNCERTAINTY AS TO WHAT THE STATE COURT MAY HAVE BELIEVED OR DISBELIEVED
THAT JUSTIFIED THE ACTION OF THE DISTRICT COURT AND THE COURT OF
APPEALS IN THIS CASE.  TO CONCLUDE OTHERWISE, I BELIEVE, IGNORES THE
FULL IMPORT OF THIS COURT'S REASONING IN TOWNSEND V. SAIN, SUPRA,
CONCERNING THOSE LIMITED SITUATIONS IN WHICH A FEDERAL DISTRICT COURT
ON HABEAS CORPUS MAY REASONABLY ASSUME THAT AN UNEXPLAINED STATE COURT
DETERMINATION RESTS MERELY UPON A REJECTION OF TESTIMONY RATHER THAN
UPON CONSTITUTIONAL ERROR. 

CONSEQUENTLY, IN MY VIEW, THE COURTS BELOW PROPERLY HELD THE STATE
NOT ENTITLED IN THIS CASE TO THE PRESUMPTION OF CORRECTNESS AND THE
SPECIAL BURDEN OF PROOF SET FORTH IN SEC. 2254(D).  /2/  AS FOR THE
MERITS, I SEE NO BASIS FOR THIS COURT TO SET ASIDE THE DISTRICT COURT'S
FINDING OF INVOLUNTARINESS, A FINDING SUSTAINED BY THE COURT OF APPEALS
AS NOT "CLEARLY ERRONEOUS" UNDER FED. RULE CIV. PROC. 52(A).  CF. NEIL
V. BIGGERS, 409 U.S. 188, 201(1972) (OPINION OF BRENNAN, J.). 

/1/  INSOFAR AS THE COURT RELIES UPON THIS LANGUAGE FROM TOWNSEND IN
INTERPRETING SEC. 2254(D)(1), THE COURT EFFECTIVELY IGNORES THE
DISCRETIONARY CHARACTER OF THE DECISION LODGED WITH THE DISTRICT JUDGE
WHO IS FACED WITH A QUESTION AS TO THE ADEQUACY OF UNEXPLAINED STATE
COURT FINDINGS.  TOWNSEND INDICATES THAT "THE DISTRICT JUDGE MAY, IN
THE ORDINARY CASE IN WHICH THERE HAS BEEN NO ARTICULATION, PROPERLY
ASSUME" THAT THE STATE COURT REACHED A CONSTITUTIONALLY PERMISSIBLE
CONCLUSION.  TODAY, HOWEVER, THE COURT EFFECTIVELY INDICATES THAT THE
DISTRICT COURT OFTEN MUST ASSUME IN SUCH CASES THAT THE PROPER STANDARD
WAS APPLIED.  SUCH A RIGID STANDARD SEEMS TO ME WHOLLY IMPROPER AND
UNWORKABLE WHERE THE QUESTION WHETHER THE DEFENDANT'S TESTIMONY WAS
SIMPLY REJECTED AND THE PROPER STANDARD APPLIED IS ESSENTIALLY ONE OF
JUDGMENT DEPENDENT UPON THE FACTS OF EACH PARTICULAR CASE.  THESE
MATTERS ARE PROPERLY LEFT LARGELY TO THE DISCRETION OF THE DISTRICT
JUDGE.  AND HERE, CERTAINLY, IT CANNOT BE SAID SUCH DISCRETION WAS
ABUSED. 

/2/  THE COURT, OF COURSE, DOES NOT HOLD THAT THE DISTRICT COURT
ERRED IN HOLDING A DE NOVO EVIDENTIARY HEARING ON THE VOLUNTARINESS OF
RESPONDENT'S CONFESSION.  THAT IS A QUESTION DISTINCT FROM THE
PRESUMPTION OF VALIDITY AND THE SPECIAL BURDEN OF PROOF ESTABLISHED BY
28 U.S.C. 2254(D).  SECTION 2254(D) SAYS NOTHING CONCERNING WHEN A
DISTRICT JUDGE MAY HOLD AN EVIDENTIARY HEARING-- AS OPPOSED TO ACTING
SIMPLY ON THE STATE COURT RECORD-- IN CONSIDERING A STATE PRISONER'S
PETITION FOR FEDERAL HABEAS CORPUS.  SO FAR AS I UNDERSTAND, THE
QUESTION WHETHER SUCH A HEARING IS APPROPRIATE ON FEDERAL HABEAS CORPUS
CONTINUES TO BE CONTROLLED EXCLUSIVELY BY OUR DECISION IN TOWNSEND V.
SAIN EVEN AFTER THE ENACTMENT OF SEC. 2254(D).  SEE DEVELOPMENTS IN THE
LAW-- FEDERAL HABEAS CORPUS, 83 HARV.L.REV.  1038, 1141(1970).  AND,
TOWNSEND EXPLICITLY RECOGNIZES THAT, APART FROM THE SIX SPECIFIC
INSTANCES DESCRIBED IN THAT OPINION AS MANDATING AN EVIDENTIARY
HEARING, "(IN ALL OTHER CASES WHERE THE MATERIAL FACTS ARE IN DISPUTE,
THE HOLDING OF . . . A HEARING IS IN THE DISCRETION OF THE DISTRICT
JUDGE.  . . . IN EVERY CASE HE HAS THE POWER, CONSTRAINED ONLY BY HIS
SOUND DISCRETION, TO RECEIVE EVIDENCE BEARING UPON THE APPLICANT'S
CONSTITUTIONAL CLAIM."  372 U.S.,AT 318. 
..END :





HURTADO V. UNITED STATES, 410 U.S. 578 


       HURTADO ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 FIFTH CIRCUIT

        NO. 71-6742.  ARGUED JANUARY 17, 1973-- DECIDED MARCH 5,

           1973 


1.  A MATERIAL WITNESS WHO IS INCARCERATED BECAUSE UNABLE TO GIVE
BAIL IS ENTITLED UNDER 28 U.S.C. 1821 TO THE SAME $20 PER DIEM
COMPENSATION AS IS ALLOWED A NONINCARCERATED WITNESS DURING THE TRIAL
OR OTHER PROCEEDING AT WHICH HE IS IN "ATTENDANCE," I.E., HAS BEEN
SUMMONED AND IS AVAILABLE TO TESTIFY IN A COURT IN SESSION, REGARDLESS
OF WHETHER HE IS PHYSICALLY PRESENT IN THE COURTROOM.  PP. 582-587. 

2.  THE $1 STATUTORY PER DIEM PLUS SUBSISTENCE IN KIND FOR
INCARCERATED WITNESS BEFORE TRIAL DOES NOT VIOLATE THE JUST
COMPENSATION CLAUSE, AS DETENTION OF A MATERIAL WITNESS IS NOT A
"TAKING" UNDER THE FIFTH AMENDMENT; AND THE DISTINCTION BETWEEN
COMPENSATION FOR PRETRIAL DETENTION OF A MATERIAL WITNESS IS NOT A
"TAKING" UNDER THE FIFTH AMENDMENT; AND THE DISTINCTION BETWEEN
COMPENSATION FOR PRETRIAL DETENTION AND FOR TRIAL ATTENDANCE IS NOT SO
UNREASONABLE AS TO VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT, SINCE CONGRESS COULD DETERMINE THAT IN VIEW OF THE LENGTH OF
PRETRIAL CONFINEMENT AND THE COSTS NECESSARILY BORNE BY THE GOVERNMENT,
ONLY MINIMAL COMPENSATION FOR PRETRIAL DETENTION IS JUSTIFIED,
PARTICULARLY SINCE THE WITNESS HAS A PUBLIC DUTY TO TESTIFY.  PP. 588
591. 

452 F.2D 951, VACATED AND REMANDED TO DISTRICT COURT. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, MARSHALL, BLACKMUN, POWELL, AND REHNQUIST, JJ.,
JOINED.  BRENNAN, J., FILED AN OPINION CONCURRING IN PART AND
DISSENTING IN PART, POST, P. 591.  DOUGLAS, J., FILED A DISSENTING
OPINION, POST, P. 600. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS, CITIZENS OF MEXICO, ENTERED THE UNITED STATES
ILLEGALLY.  TO ASSURE THEIR PRESENCE AS MATERIAL WITNESSES AT THE
FEDERAL CRIMINAL TRIALS OF THOSE ACCUSED OF ILLEGALLY BRINGING THEM
INTO THIS COUNTRY, THEY WERE REQUIRED TO POST BOND PURSUANT TO FORMER
RULE 46(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  UNABLE TO MAKE
BAIL, THEY WERE INCARCERATED.  /1/ 

THE PETITIONERS INSTITUTED THE PRESENT CLASS ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS ON BEHALF OF
THEMSELVES AND OTHERS SIMILARLY INCARCERATED AS MATERIAL WITNESSES. 
THEIR COMPLAINT ALLEGED THAT THEY, AND THE OTHER MEMBERS OF THEIR
CLASS, HAD BEEN PAID ONLY $1 FOR EVERY DAY OF THEIR CONFINEMENT; THAT
THE STATUTE PROVIDING THE COMPENSATION TO BE PAID WITNESSES REQUIRES
PAYMENT OF A TOTAL OF $21 PER DAY TO MATERIAL WITNESSES IN CUSTODY; AND
THAT, ALTERNATIVELY, IF THE STATUTE BE CONSTRUED TO REQUIRE PAYMENT OF
ONLY $1 PER DAY TO DETAINED WITNESSES, IT VIOLATES THE FIFTH AMENDMENT
GUARANTEES OF JUST COMPENSATION AND DUE PROCESS.  THEY DID NOT ATTACK
THE VALIDITY OR LENGTH OF THEIR INCARCERATION AS SUCH, BUT SOUGHT
MONETARY DAMAGES UNDER THE TUCKER ACT, 28 U.S.C. 1346(A)(2), FOR THE
LOST COMPENSATION CLAIMED, AND EQUIVALENT DECLARATORY AND INJUNCTIVE
RELIEF. 

THE STATUTE IN QUESTION, 28 U.S.C. 1821, PROVIDES THAT A "WITNESS
ATTENDING IN ANY COURT OF THE UNITED STATES . . . SHALL RECEIVE $20 FOR
EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO
AND RETURNING FROM THE SAME . . . "  A SEPARATE PARAGRAPH OF THE
STATUTE ENTITLED "A WITNESS . . . DETAINED IN PRISON FOR WANT OF
SECURITY FOR HIS APPEARANCE, . . . IN ADDITION TO HIS SUBSISTENCE, TO A
COMPENSATION OF $1 PER DAY."  /2/ 

THE PETITIONERS' COMPLAINT WAS GROUNDED UPON THE THEORY THAT THEY
WERE "ATTENDING IN . . . COURT" THROUGHOUT THE PERIOD OF THEIR
INCARCERATION, SINCE THEY WERE PREVENTED FROM ENGAGING IN THEIR NORMAL
OCCUPATIONS IN ORDER TO BE READY TO TESTIFY.  THEY ARGUED THAT THE $20
FEE IS COMPENSATION FOR THE INCONVENIENCE AND PRIVATE LOSS SUFFERED
WHEN A WITNESS COMES TO TESTIFY, AND THAT ALL OF THESE BURDENS ARE
BORNE BY THE INCARCERATED WITNESS THROUGHOUT HIS CONFINEMENT.  URGING
THAT THE COMPENSATION PROVISIONS SHOULD BE APPLIED ARE BROADLY AS THE
PROBLEM THEY WERE DESIGNED TO AMELIORATE, THE PETITIONERS ARGUED THAT
THEY WERE ENTITLED TO THE $20 COMPENSATION FOR EVERY DAY OF
CONFINEMENT, IN ADDITION TO THE $1 A DAY THAT THEY VIEWED AS A TOKEN
PAYMENT FOR SMALL NECESSITIES WHILE IN JAIL. 

WHILE THEY PRESSED THIS BROAD DEFINITION OF "ATTENDANCE," THE
PETITIONERS ALSO POINTED TO A NARROWER AND MORE ACUTE PROBLEM IN
ADMINISTERING THE STATUTE.  THEIR AMENDED COMPLAINT ALLEGED THAT
NONINCARCERATED WITNESSES ARE PAID $20 FOR EACH DAY AFTER THEY HAVE
BEEN SUMMONED TO TESTIFY-- EVEN FOR THOSE DAYS THEY ARE NOT NEEDED IN
COURT AND SIMPLY WAIT IN THE RELATIVE COMFORT OF THEIR HOTEL ROOMS TO
BE CALLED.  BY CONTRAST, WITNESSES IN JAIL ARE PAID ONLY $1 A DAY WHEN
THEY ARE WAITING TO TESTIFY-- EVEN WHEN THE TRIAL FOR WHICH THEY HAVE
BEEN DETAINED IS IN PROGRESS.  IN SHORT, THE AMENDED COMPLAINT ALLEGED
THAT THE GOVERNMENT HAS CONSTRUED THE STATUTE TO MEAN THAT INCARCERATED
WITNESSES MUST BE PHYSICALLY PRESENT IN THE COURTROOM BEFORE THEY ARE
ELIGIBLE FOR THE $20 DAILY COMPENSATION, BUT THAT NONINCARCERATED
WITNESSES NEED NOT BE SIMILARLY PRESENT TO RECEIVE THAT AMOUNT.  /3/ 

IN ITS ANSWER, THE GOVERNMENT CONCEDED THAT EACH WITNESS DETAINED IN
CUSTODY IS PAID ONLY $1 FOR EVERY DAY OF INCARCERATION, AND THAT THE
WITNESS FEE OF $20 IS PAID ONLY WHEN SUCH A WITNESS IS ACTUALLY IN
ATTENDANCE IN COURT.  THE GOVERNMENT DEFENDED THIS PRACTICE AS REQUIRED
BY THE LITERAL WORDS OF THE STATUTE, AND ARGUED THAT THE STATUTE, AS SO
CONSTRUED, IS CONSTITUTIONAL. 

IN AN UNREPORTED ORDER, THE DISTRICT COURT GRANTED THE GOVERNMENT'S
MOTION FOR SUMMARY JUDGMENT, AND THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT AFFIRMED.  452 F.2D 951.  THE COURT OF APPEALS CONCLUDED THAT
THE $20 WITNESS FEE IS PROPERLY PAYABLE ONLY TO THOSE WITNESSES WHO ARE
"IN ATTENDANCE" OR TRAVELING TO AND FROM COURT, AND NOT TO THOSE WHO
ARE INCARCERATED TO ASSURE THEIR ATTENDANCE.  SO INTERPRETED, THE COURT
UPHELD THE STATUTE AS CONSTITUTIONAL.  WE GRANTED CERTIORARI, 409 U.S.
841, TO CONSIDER A QUESTION OF SEEMING IMPORTANCE IN THE ADMINISTRATION
OF JUSTICE IN THE FEDERAL COURTS. 

        I 

BOTH THE PETITIONERS AND THE GOVERNMENT ADHERE TO THEIR OWN QUITE
CONTRARY INTERPRETATIONS OF SEC. 1821-- THE PETITIONERS MAINTAINING
THAT THEY ARE ENTITLED TO A $20 WITNESS FEE FOR EVERY DAY OF
INCARCERATION AND THE GOVERNMENT SEEKING TO LIMIT SUCH PAYMENT TO THOSE
DAYS ON WHICH A DETAINED WITNESS IS PHYSICALLY "IN ATTENDANCE" IN
COURT.  WE FIND BOTH INTERPRETATIONS OF THE STATUTE INCORRECT-- THE
PETITIONERS' TOO EXPANSIVE, THE GOVERNMENT'S TOO RESTRICTED.  /4/ 

THE STATUTE PROVIDES TO A "WITNESS ATTENDING IN ANY COURT OF THE
UNITED STATES" $20 "FOR EACH DAY'S ATTENDANCE."  THIS PERFORCE MEANS
THAT A WITNESS CAN BE ELIGIBLE FOR THE $20 FEE ONLY WHEN TWO
REQUIREMENTS ARE SATISFIED-- WHEN THERE IS A COURT IN SESSION THAT HE
IS TO ATTEND, AND WHEN HE IS IN NECESSARY ATTENDANCE ON THAT COURT. 

THE PETITIONERS' INTERPRETATION OF "ATTENDANCE" AS BEGINNING WITH
THE FIRST DAY OF INCARCERATION SLIGHTS THE STATUTORY REQUIREMENT THAT
ATTENDANCE BE IN COURT.  A WITNESS MIGHT BE DETAINED MANY DAYS BEFORE
THE CASE IN WHICH HE IS TO TESTIFY IS CALLED FOR TRIAL.  DURING THAT
TIME, THERE IS LITERALLY NO COURT IN SESSION IN WHICH HE COULD
CONCEIVABLE BE CONSIDERED TO BE IN ATTENDANCE.  OVER A CENTURY AND A
HALF AGO ATTORNEY GENERAL WILLIAM WIRT REJECTED A SIMILAR CONSTRUCTION
OF AN ALMOST IDENTICALLY WORDED LAW.  HE FOUND THAT THE THEN-CURRENT
STATUTE, WHICH PROVIDED COMPENSATION TO A WITNESS "FOR EACH DAY HE
SHALL ATTEND IN COURT,"  /5/  COULD NOT BE CONSTRUED TO PROVIDE TO
INCARCERATED WITNESSES FOR EVERY DAY OF THEIR DETENTION: 

     "THERE IS NO COURT, EXCEPT IT BE A COURT IN SESSION.  THERE
ARE

  JUDGES; BUT THEY DO NOT CONSTITUTE A COURT, EXCEPT WHEN THEY

  ASSEMBLE TO ADMINISTER THE LAW.  . . . NOW I CANNOT CONCEIVE WITH

WHAT PROPRIETY A WITNESS CAN BE SAID TO BE ATTENDING IN COURT

  WHEN THERE IS NO COURT, AND WILL BE NO COURT FOR SEVERAL MONTHS. 

     "TO CONSIDER A WITNESS WHO HAS BEEN COMMITTED TO JAIL BECAUSE

  HE CANNOT GIVE SECURITY TO ATTEND A FUTURE COURT, TO BE ACTUALLY

  ATTENDING THE COURT FROM THE TIME OF HIS COMMITMENT, AND THIS FOR

  FIVE MONTHS BEFORE THERE IS ANY COURT IN EXISTENCE, WOULD SEEM TO

  ME TO BE RATHER A FORCED AND UNNATURAL CONSTRUCTION."  1

  OP.ATTY.GEN.  424, 427. 

THE GOVERNMENT, ON THE OTHER HAND, WOULD PLACE A RESTRICTIVE GLOSS
ON THE STATUTE'S REQUIREMENT OF NECESSARY ATTENDANCE; IT MAINTAINS THAT
THE $20 COMPENSATION NEED BE PAID ONLY FOR THE DAYS A WITNESS IS IN
ACTUAL PHYSICAL ATTENDANCE IN COURT, AND IT CONCLUDES THAT A WITNESS
CONFINED DURING THE TRIAL NEED ONLY BE PAID FOR THOSE DAYS ON WHICH HE
IS ACTUALLY BROUGHT INTO THE COURTROOM.  BUT SEC. 1821 DOES NOT SPEAK
IN TERMS OF "PHYSICAL" OR "ACTUAL" ATTENDANCE, AND WE DECLINE TO
ENGRAFT SUCH A RESTRICTION UPON THE STATUTE.  RATHER, THE STATUTE
REACHES THOSE WITNESSES WHO HAVE BEEN SUMMONED AND ARE IN NECESSARY
ATTENDANCE ON THE COURT, IN READINESS TO TESTIFY.  THERE IS NOTHING
MAGIC ABOUT THE FOUR WALLS OF A COURTROOM.  ONCE A WITNESS HAS BEEN
SUMMONED TO TESTIFY, WHETHER HE WAITS IN A WITNESS ROOM, A PROSECUTOR'S
OFFICE, A HOTEL ROOM, OR THE JAIL, HE IS STILL AVAILABLE TO TESTIFY,
AND IT IS THAT AVAILABILITY THAT THE STATUTE COMPENSATES. 
NONINCARCERATED WITNESSES ARE COMPENSATED UNDER THE STATUTE FOR DAYS ON
WHICH THEY HAVE MADE THEMSELVES AVAILABLE TO TESTIFY BUT ON WHICH THEIR
PHYSICAL PRESENCE IN THE COURTROOM IS NOT REQUIRED-- FOR EXAMPLE, WHERE
THE TRIAL IS ADJOURNED OR WHERE THEIR TESTIMONY IS ONLY NEEDED ON A
LATER DAY.  /6/  WE CANNOT ACCEPT THE ANOMALOUS CONCLUSION THAT THE
SAME STATUTORY LANGUAGE IMPOSES A REQUIREMENT OF PHYSICAL PRESENCE IN
THE COURTROOM ON WITNESSES WHO HAVE BEEN CONFINED.  ATTORNEY GENERAL
WIRT CONCLUDED THAT LANGUAGE SIMILAR TO THAT AT ISSUE HERE, DID NOT
REQUIRE ANY SUCH PHYSICAL PRESENCE: 

"BUT IT WAS BY NO MEANS MY INTENTION TO AUTHORIZE THE INFERENCE . .
. THAT, IN ORDER TO ENTITLE A WITNESS TO HIS PER DIEM ALLOWANCE UNDER
THE ACT OF CONGRESS, IT WAS NECESSARY THAT HE SHOULD BE EVERY DAY
CORPOREALLY PRESENT WITHIN THE WALLS OF THE COURT-ROOM, AND THAT THE
COURT MUST BE EVERY DAY IN ACTUAL SESSION.  SUCH A PUERILITY NEVER
ENTERED MY MIND.  MY OPINION SIMPLY WAS, AND IS, THAT BEFORE
COMPENSATION COULD BEGIN TO RUN, THE COURT MUST HAVE COMMENCED ITS
SESSION; THE SESSION MUST BE LEGALLY SUBSISTING, AND THE WITNESS
ATTENDING ON THE COURT-- NOT NECESSARILY IN THE COURT ROOM, BUT WITHIN
ITS POWER, WHENEVER IT MAY REQUIRE HIS ATTENDANCE.  . . . I CONSIDER A
WITNESS AS ATTENDING ON COURT TO THE PURPOSE OF EARNING HIS
COMPENSATION, SO LONG AS HE IS IN THE POWER OF THE COURT WHENSOEVER IT
MAY BECOME NECESSARY TO CALL FOR HIS EVIDENCE, ALTHOUGH HE MAY NOT HAVE
ENTERED THE COURT-ROOM UNTIL SUCH CALL SHALL HAVE BEEN MADE; AND I
CONSIDER THE COURT IN SESSION FROM THE MOMENT OF ITS COMMENCEMENT UNTIL
ITS ADJOURNMENT SINE DIE, NOTWITHSTANDING ITS INTERMEDIATE ADJOURNMENTS
DE DIE IN DIEM."  1 OP.ATTY.GEN.,AT 426-427. 

WE CONCLUDE THAT A MATERIAL WITNESS WHO HAS BEEN INCARCERATED IS
ENTITLED TO THE $20 COMPENSATION FOR EVERY DAY OF CONFINEMENT DURING
THE TRIAL OR OTHER PROCEEDING FOR WHICH HE HAS BEEN DETAINED.  /7/  ON
EACH OF THOSE DAYS, THE TWO REQUIREMENTS OF THE STATUTE ARE SATISFIED--
THERE IS A COURT IN SESSION AND THE WITNESS IS IN NECESSARY
ATTENDANCE.  HE IS IN THE SAME POSITION AS A NONINCARCERATED WITNESS
WHO IS SUMMONED TO APPEAR ON THE FIRST DAY OF TRIAL, BUT ON ARRIVAL IS
TOLD BY THE PROSECUTOR THAT HE IS TO HOLD HIMSELF READY TO TESTIFY ON A
LATER DAY IN THE TRIAL.  THE GOVERNMENT PAYS SUCH A WITNESS FOR EVERY
DAY HE IS IN ATTENDANCE ON THE COURT, AND THE STATUTE REQUIRES IT TO
PAY THE SAME PER DIEM COMPENSATION TO THE INCARCERATED WITNESS. 
BECAUSE THE COURT OF APPEALS UPHELD A CONSTRUCTION OF THE STATUTE THAT
WOULD ALLOW THE $20 TO BE PAID TO INCARCERATED WITNESSES ONLY FOR THOSE
DAYS THEY ACTUALLY APPEAR IN THE COURTROOM, ITS JUDGMENT MUST BE SET
ASIDE.  /8/

        II 

THE PETITIONERS ARGUE THAT IF SEC. 1821 PROVIDES INCARCERATED
WITNESSES ONLY A DOLLAR A DAY FOR THE PERIOD BEFORE THE TRIAL BEGINS,
THEN THE STATUTE IS UNCONSTITUTIONAL.  WE CANNOT AGREE. 

AS NOTED AT THE OUTSET, THE PETITIONERS DO NOT ATTACK THE
CONSTITUTIONALITY OF INCARCERATING MATERIAL WITNESSES, OR THE LENGTH OF
SUCH INCARCERATION IN ANY PARTICULAR CASE.  /9/  RATHER, THEY SAY THAT
WHEN THE GOVERNMENT INCARCERATES MATERIAL WITNESSES, IT HAS "TAKEN"
THEIR PROPERTY, AND THAT ONE DOLLAR A DAY IS NOT JUST COMPENSATION FOR
THIS "TAKING" UNDER THE FIFTH AMENDMENT.  ALTERNATIVELY, THEY ARGUE
THAT PAYMENT OF ONLY ONE DOLLAR A DAY BEFORE TRIAL, WHEN CONTRASTED
WITH THE $20 A DAY PAID TO WITNESSES ATTENDING A TRIAL, IS A DENIAL OF
DUE PROCESS OF LAW. 

BUT THE FIFTH AMENDMENT DOES NOT REQUIRE THAT THE GOVERNMENT PAY FOR
THE PERFORMANCE OF A PUBLIC DUTY IT IS ALREADY OWED.  SEE MONONGAHELA
BRIDGE CO. V. UNITED STATES, 216 U.S. 177, 193 (MODIFICATION OF BRIDGE
OBSTRUCTING RIVER); UNITED STATES V. HOBBS, 450 F.2D 935 (SELECTIVE
SERVICE ACT); UNITED STATES V. DILLON, 346 F.2D 633, 635
(REPRESENTATION OF INDIGENTS BY COURT-APPOINTED ATTORNEY); ROODENKO V.
UNITED STATES, 147 F.2D 752, 754 (ALTERNATIVE SERVICE FOR CONSCIENTIOUS
OBJECTORS); CF. KUNHARDT & CO. V. UNITED STATES, 266 U.S. 537, 540.  IT
IS BEYOND DISPUTE THAT THERE IS IN FACT A PUBLIC OBLIGATION TO PROVIDE
EVIDENCE, SEE UNITED STATES V. BRYAN, 339 U.S. 323, 331; BLACKMER V.
UNITED STATES, 284 U.S. 421, 438, AND THAT THIS OBLIGATION PERSISTS NO
MATTER HOW FINANCIALLY BURDENSOME IT MAY BE.  /10/  THE FINANCIAL
LOSSES SUFFERED DURING PRETRIAL DETENTION ARE AN EXTENSION OF THE
BURDENS BORNE BY EVERY WITNESS WHO TESTIFIES.  THE DETENTION OF A
MATERIAL WITNESS, IN SHORT, IS SIMPLY NOT A "TAKING" UNDER THE FIFTH
AMENDMENT, AND THE LEVEL OF HIS COMPENSATION, THEREFORE, DOES NOT, AS
SUCH, PRESENT A CONSTITUTIONAL QUESTION.  "(IT IS CLEARLY RECOGNIZED
THAT THE GIVING OF TESTIMONY AND THE ATTENDANCE UPON COURT OR GRAND
JURY IN ORDER TO TESTIFY ARE PUBLIC DUTIES WHICH EVERY PERSON WITHIN
THE JURISDICTION OF THE GOVERNMENT IS BOUND TO PERFORM UPON BEING
PROPERLY SUMMONED, AND FOR PERFORMANCE OF WHICH HE IS ENTITLED TO NO
FURTHER COMPENSATION THAN THAT WHICH THE STATUTES PROVIDE.  THE
PERSONAL SACRIFICE INVOLVED IS A PART OF THE NECESSARY CONTRIBUTION OF
THE INDIVIDUAL TO THE WELFARE OF THE PUBLIC."  BLAIR V. UNITED STATES,
250 U.S. 273, 281.  /11/     SIMILARLY, WE ARE UNPERSUADED THAT THE
CLASSIFICATIONS DRAWN BY SEC. 1821 AS WE HAVE CONSTRUED IT ARE SO
IRRATIONAL AS TO VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  CF. BOLLING V. SHARPE, 347 U.S. 497, 499.  THE STATUTE
PROVIDES $20 PER DIEM COMPENSATION TO A WITNESS WHO IS IN NECESSARY
ATTENDANCE ON A COURT, BUT THAT FEE IS PAYABLE TO ANY WITNESS,
INCARCERATED OR NOT.  DURING THE PERIOD THAT ELAPSES BEFORE HIS
ATTENDANCE ON A COURT, A WITNESS WHO IS NOT INCARCERATED GETS NO
COMPENSATION WHATEVER FROM THE GOVERNMENT.  AN INCARCERATED WITNESS, ON
THE OTHER HAND, GETS ONE DOLLAR A DAY DURING THAT PERIOD, IN ADDITION
TO SUBSISTENCE IN KIND.     WE CANNOT SAY THAT THERE IS NO REASONABLY
BASIS FOR DISTINGUISHING THE COMPENSATION PAID FOR PRETRIAL DETENTION
FROM THE FEES PAID FOR ATTENDANCE AT TRIAL.  PRETRIAL CONFINEMENT WILL
FREQUENTLY BE LONGER THAN THE PERIOD OF CONFINEMENT THE GOVERNMENT MUST
BEAR THE COST OF FOOD, LODGING, AND SECURITY FOR DETAINED WITNESSES. 
CONGRESS COULD THUS REASONABLY DETERMINE THAT WHILE SOME COMPENSATION
SHOULD BE PROVIDED DURING THE PRETRIAL DETENTION PERIOD, A MINIMAL
AMOUNT WAS JUSTIFIED, PARTICULARLY IN VIEW OF THE FACT THAT THE WITNESS
HAS A PUBLIC OBLIGATION TO TESTIFY.  AS THE COURT OF APPEALS CORRECTLY
OBSERVED, "(GOVERNMENTAL RECOGNITION OF ITS INTEREST IN HAVING PERSONS
APPEAR IN COURT BY PAYING THEM FOR THAT PARTICIPATION IN JUDICIAL
PROCEEDINGS, DOES NOT REQUIRE THAT IT MAKE PAYMENT OF THE SAME NATURE
AND EXTENT TO PERSONS WHO ARE HELD AVAILABLE FOR PARTICIPATION IN
JUDICIAL PROCEEDINGS SHOULD IT PROVE TO BE NECESSARY.  THAT THE
GOVERNMENT PAYS FOR ONE STAGE DOES NOT REQUIRE THAT IT PAY IN LIKE
MANNER FOR ALL STAGES."  452 F.2D, AT 955. 

WE DO NOT PASS UPON THE WISDOM OR ULTIMATE FAIRNESS OF THE
COMPENSATION CONGRESS HAS PROVIDED FOR THE PRETRIAL DETENTION OF
MATERIAL WITNESSES.  WE DO NOT DECIDE "THAT A MORE JUST AND HUMANE
SYSTEM COULD NOT BE DEVISED."  DANDRIDGE V. WILLIAMS, 397 U.S. 471,
487.  INDEED, EVEN THOUGH IT OPPOSED GRANTING THE PETITION FOR
CERTIORARI IN THE PRESENT CASE, THE GOVERNMENT FOUND IT "OBVIOUS" THAT
"THE SITUATION IS NOT A SATISFACTORY ONE," AND WE WERE INFORMED AT ORAL
ARGUMENT THAT A LEGISLATIVE PROPOSAL TO INCREASE THE PER DIEM PAYMENT
TO DETAINED WITNESSES WILL SHORTLY BE SUBMITTED BY THE DEPARTMENT OF
JUSTICE TO THE OFFICE OF MANAGEMENT AND BUDGET FOR REVIEW.  BUT NO
MATTER HOW UNWISE OR UNSATISFACTORY THE PRESENT RATES MIGHT BE, THE
CONSTITUTION PROVIDES NO LICENSE TO IMPOSE THE LEVELS OF COMPENSATION
WE MIGHT THINK FAIR AND JUST.  THAT TASK BELONGS TO CONGRESS, NOT TO
US. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

     IT IS SO ORDERED. 

/1/  FED. RULE CRIM. PROC. 46(B), AT THE TIME THIS CASE AROSE, AND
BEFORE RULE 46 WAS AMENDED TO CONFORM TO THE BAIL REFORM ACT OF 1966,
PROVIDED: 

"BAIL FOR WITNESS. 

"IF IT APPEARS BY AFFIDAVIT THAT THE TESTIMONY OF A PERSON IS
MATERIAL IN ANY CRIMINAL PROCEEDING AND IT IT IS SHOWN THAT IT MAY
BECOME IMPRACTICABLE TO SECURE HIS PRESENCE BY SUBPOENA, THE COURT OF
COMMISSIONER MAY REQUIRE HIM TO GIVE BAIL FOR HIS APPEARANCE AS A
WITNESS, IN AN AMOUNT FIXED BY THE COURT OR COMMISSIONER.  IF THE
PERSON FAILS TO GIVE BAIL THE COURT OR COMMISSIONER MAY COMMIT HIM TO
THE CUSTODY OF THE MARSHAL PENDING FINAL DISPOSITION OF THE PROCEEDING
IN WHICH THE TESTIMONY IS NEEDED, MAY ORDER HIS RELEASE IF HE HAS BEEN
DETAINED FOR AN UNREASONABLE LENGTH OF TIME AND MAY MODIFY AT ANY TIME
THE REQUIREMENT AS TO BAIL." 

/2/  THE STATUTE PROVIDES IN FULL: 

"SEC. 1821.  PER DIEM AND MILEAGE GENERALLY; SUBSISTENCE. 

"A WITNESS ATTENDING IN ANY COURT OF THE UNITED STATES, OR BEFORE A
UNITED STATES COMMISSIONER, OR BEFORE ANY PERSON AUTHORIZED TO TAKE HIS
DEPOSITION PURSUANT TO ANY RULE OR ORDER OF A COURT OF THE UNITED
STATES, SHALL RECEIVE $20 FOR EACH DAY'S ATTENDANCE AND FOR THE TIME
NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME, AND 10
CENTS PER MILE FOR GOING FROM THE RETURNING TO HIS PLACE OF RESIDENCE. 
REGARDLESS OF THE MODE OF TRAVEL EMPLOYED BY THE WITNESS, COMPUTATION
OF MILEAGE UNDER THIS SECTION SHALL BE MADE ON THE BASIS OF A UNIFORM
TABLE OF DISTANCES ADOPTED BY THE ATTORNEY GENERAL.  WITNESSES WHO ARE
NOT SALARIED EMPLOYEES OF THE GOVERNMENT AND WHO ARE NOT IN CUSTODY AND
WHO ATTEND AT POINTS SO FAR REMOVED FROM THEIR RESPECTIVE RESIDENCE AS
TO PROHIBIT RETURN THERETO FROM DAY TO DAY SHALL BE ENTITLED TO AN
ADDITIONAL ALLOWANCE OF $16 PER DAY FOR EXPENSES OF SUBSISTENCE
INCLUDING THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM
THE PLACE OF ATTENDANCE:  PROVIDED, THAT IN LIEU OF THE MILEAGE
ALLOWANCE PROVIDED FOR HEREIN, WITNESSES WHO ARE REQUIRED TO TRAVEL
BETWEEN THE TERRITORIES AND POSSESSIONS, OR TO AND FROM THE CONTINENTAL
UNITED STATES, SHALL BE ENTITLED TO THE ACTUAL EXPENSES OF TRAVEL AT
THE LOWEST FIRST-CLASS RATE AVAILABLE AT THE TIME OF RESERVATION FOR
PASSAGE, BY MEANS OF TRANSPORTATION EMPLOYED:  PROVIDED FURTHER, THAT
THIS SECTION SHALL NOT APPLY TO ALASKA. 

"WHEN A WITNESS IS DETAINED IN PRISON FOR WANT OF SECURITY FOR HIS
APPEARANCE, HE SHALL BE ENTITLED, IN ADDITION TO HIS SUBSISTENCE, TO A
COMPENSATION OF $1 PER DAY. 

"WITNESSES IN THE DISTRICT COURTS FOR THE DISTRICTS OF CANAL ZONE,
GUAM, AND THE VIRGIN ISLANDS SHALL RECEIVE THE SAME FEES AND ALLOWANCE
PROVIDED IN THIS SECTION FOR WITNESSES IN OTHER DISTRICT COURTS OF THE
UNITED STATES." 

/3/  BY WAY OF ILLUSTRATION, THE WITNESS WHO SETS OUT ON MONDAY IN
ORDER TO BE AVAILABLE TO TESTIFY ON TUESDAY; BUT WHO IS NOT ACTUALLY
CALLED TO THE COURT FOR TESTIMONY UNTIL FRIDAY; AND WHO RETURNS HOME ON
SATURDAY, WILL RECEIVE $20 FOR EVERY DAY FROM MONDAY THROUGH SATURDAY. 
BUT THE MATERIAL WITNESS WHO IS INCARCERATED ON MONDAY, HELD UNTIL
FRIDAY WHEN HE TESTIFIES, AND THEN RELEASED, WILL RECEIVE ONE DOLLAR
FOR EVERY DAY AND AN ADDITIONAL $20 ONLY FOR FRIDAY-- THE DAY HE
ACTUALLY TESTIFIES. 

/4/  BOTH PARTIES BOLSTER THEIR STATUTORY INTERPRETATIONS WITH
ARGUMENTS BASED UPON THE STATUTORY LANGUAGE.  THE PETITIONERS POINT OUT
THAT INCARCERATED WITNESSES ARE NOT SPECIFICALLY EXCLUDED FROM THOSE
ENTITLED TO RECEIVE THE $20 FEE FOR ATTENDING COURT, THOUGH THEY ARE
EXCLUDED FROM THOSE ENTITLED TO THE $16-A-DAY SUBSISTENCE ALLOWANCE. 
HENCE, THEY CONCLUDE THAT CONGRESS INTENDED THAT THEY BE ELIGIBLE FOR
THE $20-PER-DAY FEE.  BUT THAT ARGUMENT PROVES NO MORE THAN THAT
CONGRESS INTENDED A DETAINED WITNESS TO BE ELIGIBLE FOR THE $20 FEE FOR
EVERY DAY HE IS "ATTENDING" COURT; IT DOES NOT INDICATE THAT CONGRESS
INTENDED THAT EVERY DAY OF INCARCERATION IS THE EQUIVALENT OF A DAY
ATTENDING COURT AND COMPENSABLE AT THE RATE OF $20 PER DAY. 

THE GOVERNMENT SUPPORTS ITS POSITION BY POINTING OUT THAT THE
STATUTE ALLOCATES TO A DETAINED WITNESS $1 PER DAY "IN ADDITION TO HIS
SUBSISTENCE," NOT $1 A DAY IN ADDITION BOTH TO SUBSISTENCE AND TO A
WITNESS FEE OF $20.  BUT IT IS DIFFICULT TO GIVE ANY WEIGHT TO THIS
ARGUMENT, SINCE THE GOVERNMENT ACKNOWLEDGES THAT A DETAINED WITNESS IS
TO BE PAID $20 A DAY AT LEAST FOR DAYS OF PHYSICAL ATTENDANCE IN
COURT.  THEREFORE, ACCORDING TO THE GOVERNMENT'S OWN INTERPRETATION,
THE $1-A-DAY CLAUSE CAN HARDLY BE EXCLUSIVE. 

/5/  "AND BE IT FURTHER ENACTED, THAT THE COMPENSATION TO JURORS AND
WITNESSES, IN THE COURTS OF THE UNITED STATES, SHALL BE AS FOLLOWS, TO
WIT:  TO EACH GRAND AND OTHER JUROR, FOR EACH DAY HE SHALL ATTEND IN
COURT, ONE DOLLAR AND TWENTY-FIVE CENTS; AND FOR TRAVELLING, AT THE
RATE OF FIVE CENTS PER MILE, FROM THEIR RESPECTIVE PLACES OF ABODE, TO
THE PLACE WHERE THE COURT IS HOLDEN, AND THE LIKE ALLOWANCE FOR
RETURNING; TO THE WITNESSES SUMMONED IN ANY COURT OF THE UNITED STATES,
THE SAME ALLOWANCE AS IS ABOVE PROVIDED FOR JURORS."  ACT OF FEB. 28,
1799, C. 19, SEC. 6, 1 STAT. 626. 

/6/  CF., E.G., HUNTER V. RUSSELL, 59 F. 964, 967-968; WHIPPLE V.
CUMBERLAND COTTON MFG. CO., 29 F.CAS.  933 (NO. 17,515); HANCE V.
MCCORMICK, 11 F.CAS.  401 (NO. 6,009). 

THE DEPARTMENT OF JUSTICE REGULATIONS REPEAT THE STATUTORY DIRECTIVE
THAT A WITNESS IS TO BE PAID $20 FOR "EACH DAY'S ATTENDANCE." 
DEPARTMENT OF JUSTICE, UNITED STATES MARSHAL'S MANUAL 340.14 (1971). 
THERE IS NO EXPLICIT REQUIREMENT OF PHYSICAL PRESENCE IN THE
COURTROOM. 

/7/  THE LEGISLATIVE HISTORY OF THE COMPENSATION PROVISION IS
UNENLIGHTENING.  THOUGH CONGRESS EARLY PROVIDED COMPENSATION FOR
WITNESSES ATTENDING IN THE COURTS OF THE UNITED STATES, NO SPECIFIC
PROVISION WAS MADE FOR INCARCERATED WITNESSES.  SEE, E.G., ACT OF MAY
8, 1791, C. 36, SEC. 3, 1 STAT. 277; ACT OF JUNE 1, 1796, C. 48, SEC.
2, 1 STAT. 492; ACT OF FEB. 28, 1799, C. 19, SEC. 6, 1 STAT. 626.  IN
1853, CONGRESS PROVIDED FOR PAYMENT TO A WITNESS OF $1.50 A DAY WHILE
ATTENDING COURT, AND SPECIFICALLY INDICATED THAT A DETAINED WITNESS WAS
TO BE PAID $1 A DAY OVER AND ABOVE HIS SUBSISTENCE.  ACT OF FEB. 26,
1853, C. 80, SEC. 3, 10 STAT. 167.  IN 1926, CONGRESS ELIMINATED THE
SPECIFIC PROVISION FOR COMPENSATION TO DETAINED WITNESSES AND RAISED
THE PER DIEM COMPENSATION FOR ATTENDANCE IN COURT.  ACT OF APR. 26,
1926, C. 183, SECS. 1-3, 44 STAT. 323-324. 

IN THE FOLLOWING TWO DECADES, CONGRESS CHANGED THE LEVELS OF
COMPENSATION BUT DID NOT SPECIFICALLY PROVIDE FOR COMPENSATION TO
DETAINED WITNESSES.  SEE ACT OF JUNE 30, 1932, C. 314, SEC. 323, 47
STAT. 413; ACT OF MAR. 22, 1935, C. 39, SEC. 3, 49 STAT. 105; ACT OF
DEC. 24, 1942, C. 825, SEC. 1, 56 STAT. 1088.  WHEN THE JUDICIAL CODE
WAS REVISED IN 1948, THE PROVISION FOR PER DIEM COMPENSATION TO
DETAINED WITNESSES WAS AGAIN ABSENT, ACT OF JUNE 25, 1948, C. 646, SEC.
1821, 62 STAT. 950, BUT WAS ADDED THE FOLLOWING YEAR, ACT OF MAY 24,
1949, C. 139, SEC. 94, 63 STAT. 103, WITH THE EXPLANATION BY THE HOUSE
COMMITTEE ON THE JUDICIARY THAT IT HAD BEEN "INADVERTENTLY OMITTED." 
H.R. REP. NO. 352, 81ST CONG., 1ST SESS., 16.  BY A SEPARATE MEASURE,
WITNESS FEES WERE INCREASED.  ACT OF MAY 10, 1949, C. 96, 63 STAT. 65. 
WHILE THE PER DIEM FEE, THE SUBSISTENCE FEE, AND THE TRAVEL ALLOWANCE
HAVE ALL BEEN INCREASE, THE $1 A DAY FOR INCARCERATED WITNESSES HAS
REMAINED CONSTANT.  SEE ACT OF AUG. 1, 1956, C. 826, 70 STAT. 798; ACT
OF MAR. 27, 1968, PUB. L. 90-274, SEC. 201(B), 82 STAT. 62. 

THE PETITIONERS URGE THAT THIS HISTORY OF STEADILY INCREASING FEES
AT LEAST INDICATES A CONGRESSIONAL INTENT TO COMPENSATE WITNESSES FULLY
FOR THEIR LOST TIME AND INCOME, AND THAT SINCE THEY SUFFER THESE LOSSES
THROUGHOUT THE PERIOD OF INCARCERATION THEY OUGHT TO RECEIVE THE $20
FOR EVERY DAY OF CONFINEMENT.  BUT CONGRESS RECOGNIZED THAT WITNESS
FEES COULD NOT FULLY COMPENSATE WITNESSES FOR THEIR LOST TIME OR
INCOME.  SEE, E.G., S. REP. NO. 891, 90TH CONG., 1ST SESS., 36; S. REP.
NO. 187, 81ST CONG., 1ST SESS., 2.  THE PETITIONERS POINT TO NO HINT IN
ANY OF THE REPORTS ON THE VARIOUS CHANGES IN COMPENSATION LEVELS WHICH
COULD JUSTIFY THE CONCLUSION THAT CONGRESS INTENDED TO PROVIDE MORE
THAN $1 A DAY TO DETAINED WITNESSES FOR THE PERIOD OF THEIR PRETRIAL
CONFINEMENT. 

/8/  IT WAS ALSO ERROR TO AFFIRM THE SUMMARY JUDGMENT FOR THE
GOVERNMENT BECAUSE THERE WAS A GENUINE ISSUE OF MATERIAL FACT WHETHER
THE PETITIONERS HAD EVER BEEN PAID FOR THE DAYS THAT THEY ACTUALLY
ATTENDED COURT.  SEE FED. RULE CIV. PROC. TYC); ARENAS V. UNITED STATES
322 U.S. 419, 432-434; SARTOR V. ARKANSAS NATURAL GAS CORP., 321 U.S.
620, 623-629.  THEY ALLEGED IN THEIR AMENDED COMPLAINT THAT ON MANY
OCCASIONS THEY TESTIFIED FOR THE GOVERNMENT AND WERE NOT PAID $20 A DAY
FOR SUCH TESTIMONY.  THE GOVERNMENT AGREED THAT THEY WERE ENTITLED TO
THAT COMPENSATION, BUT CONTENDED IN ITS ANSWER THAT THEY HAD BEEN SO
PAID.  NO AFFIDAVITS OR OTHER EVIDENCE WAS SUBMITTED TO SUPPORT THAT
CONTENTION, AND THE COURT OF APPEALS IN AFFIRMING SUMMARY JUDGMENT FOR
THE GOVERNMENT DID NOT COMMENT ON THIS CLEAR FACTUAL DISPUTE. 

SINCE A REMAND IS REQUIRED, WE ALSO NOTE THAT THE DISTRICT COURT
NEVER EXPLICITLY RULED ON THE PETITIONERS' MOTION TO HAVE THIS SUIT
DECLARED A CLASS ACTION UNDER FED. RULE CIV. PROC. 23, AND THE COURT OF
APPEALS DID NOT DISCUSS THE ISSUE.  IT WILL, OF COURSE, BE APPROPRIATE
ON REMAND FOR THE DISTRICT COURT TO DETERMINE WHETHER THIS SUIT WAS
PROPERLY BROUGHT AS A CLASS ACTION, AND WE ACCORDINGLY EXPRESS NO VIEW
ON THAT ISSUE. 

/9/  SEE STEIN V. NEW YORK, 346 U.S. 156, 184 ("THE DUTY TO DISCLOSE
KNOWLEDGE OF CRIME . . . IS SO VITAL THAT ONE KNOWN TO BE INNOCENT MAY
BE DETAINED, IN THE ABSENCE OF BAIL, AS A MATERIAL WITNESS"); BARRY V.
UNITED STATES EX REL. CUNNINGHAM, 279 U.S. 597, 616-618. 

/10/  "(IT MAY BE A SACRIFICE OF TIME AND LABOR, AND THUS OF EASE,
OF PROFITS, OF LIVELIHOOD.  THIS CONTRIBUTION IS NOT TO BE REGARDED AS
A GRATUITY, OR A COURTESY, OR AN ILL-REQUIRED FAVOR.  IT IS A DUTY NOT
TO BE GRUDGED OR EVADED.  WHOEVER IS IMPELLED TO EVADE OR TO RESENT IT
SHOULD RETIRE FROM THE SOCIETY OF ORGANIZED AND CIVILIZED COMMUNITIES,
AND BECOME A HERMIT.  HE WHO WILL LIVE BY SOCIETY MUST LET SOCIETY LIVE
BY HIM, WHEN IT REQUIRES TO."  8 J.WIGMORE, EVIDENCE 2192; P. 72 (J.
MCNAUGHTON REV. 1961). 

/11/  THERE IS LIKEWISE NO SUBSTANCE TO THE PETITIONERS' ARGUMENT
THAT THE $1-A-DAY PAYMENT IS SO LOW AS TO IMPOSE INVOLUNTARY SERVITUDE
PROHIBITED BY THE THIRTEENTH AMENDMENT.  CF. GRIFFIN V. BRECKENRIDGE,
403 U.S. 88, 104-105; JONES V. ALFRED H. MAYER CO., 392 U.S. 409, 437
444. 

MR. JUSTICE BRENNAN, CONCURRING IN PART AND DISSENTING IN PART. 

I AM IN FULL AGREEMENT WITH MUCH OF THE MAJORITY'S OPINION. 
CONSTRUING 28 U.S.C. 1821, WHICH AUTHORIZES COMPENSATION AT THE RATE OF
$20 PER DAY TO "(A) WITNESS ATTENDING IN ANY COURT OF THE UNITED STATES
. . . ," THE COURT HOLDS TODAY THAT A PERSON HELD IN JAIL AS A MATERIAL
WITNESS /1/  IS "ATTENDING IN . . . COURT" EACH DAY THAT THE PERTINENT
JUDICIAL PROCEEDING IS UNDERWAY, EVEN IF THE WITNESS IS NOT PHYSICALLY
PRESENT IN THE COURTROOM.  BUT THE MAJORITY ALSO HOLDS THAT A JAILED
WITNESS IS NOT "ATTENDING IN"  COURT PRIOR TO THE INCEPTION OF THE
JUDICIAL PROCEEDING, EVEN THOUGH HE IS HELD IN CUSTODY FOR NO OTHER
PURPOSE THAN TO INSURE HIS APPEARANCE TO GIVE TESTIMONY AT TRIAL.  I
REJECT THAT CONCLUSION BECAUSE, IN MY VIEW, IT WORKS AN OBVIOUS AND
SEVERE HARDSHIP ON AN INCARCERATED WITNESS, BECAUSE IT IS COMPELLED
NEITHER BY THE LANGUAGE NOR THE PURPOSES OF THE STATUTE, AND BECAUSE
THE STATUTE SO CONSTRUED WOULD BE UNCONSTITUTIONAL UNDER THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.   I 

IN ADDITION TO PROVIDING COMPENSATION OF $20 PER DAY FOR "EACH DAY'S
ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND
RETURNING FROM" THE COURT WHERE THE WITNESS IS TO TESTIFY, THE STATUTE
ALSO AUTHORIZES, IN CERTAIN CASES, AN "ADDITIONAL ALLOWANCE OF $16 PER
DAY FOR EXPENSES OF SUBSISTENCE."  28 U.S.C. 1821.  AND THE SAME
STATUTE STATES THAT "(WHEN A WITNESS IS DETAINED IN PRISON FOR WANT OF
SECURITY FOR HIS APPEARANCE, HE SHALL BE ENTITLED, IN ADDITION TO HIS
SUBSISTENCE, TO A COMPENSATION OF $1 PER DAY." 

IN CONSTRUING THESE STATUTORY PROVISIONS, PETITIONERS "CITIZENS OF
MEXICO WHO ENTERED THE UNITED STATES ILLEGALLY), RESPONDENT, AND THE
COURT AGREE ON TWO POINTS:  FIRST, THAT A JAILED MATERIAL WITNESS IS
ENTITLED TO COMPENSATION $1 PER DAY FOR EACH DAY THAT HE SPENDS IN
CONFINEMENT; AND SECOND, THAT A JAILED MATERIAL WITNESS IS ENTITLED TO
THE ADDITIONAL COMPENSATION OF $20 PER DAY FOR EACH DAY THAT A TRIAL IS
IN PROGRESS AND THAT THE WITNESS IS PHYSICALLY PRESENT IN THE
COURTROOM.  THE POINT IN CONTENTION IS WHETHER OR NOT THE JAILED
WITNESS SHOULD RECEIVE THE ADDITIONAL COMPENSATION OF $20 PER DAY
DURING THE TIME AFTER HE IS TAKEN INTO CUSTODY, BUT BEFORE HE IS
PHYSICALLY PRESENT IN COURT.  PETITIONERS CONTEND THAT HE SHOULD. 
RESPONDENT CONTENDS THAT HE SHOULD NOT.  THE COURT HOLDS THAT HE SHOULD
RECEIVE THE COMPENSATION FOR EACH DAY THAT THE TRIAL IS IN PROGRESS
(WHETHER OR NOT HE ACTUALLY APPEARS IN COURT), BUT THAT HE SHOULD NOT
RECEIVE IT FOR THE DAYS SPENT IN CUSTODY BEFORE THE TRIAL IS UNDER
WAY. 

THE COURT PREDICATES ITS CONCLUSION ON A SUPERFICIALLY PLAUSIBLE
READING OF THE LITERAL TERMS OF THE STATUTE: 

     "THE PETITIONERS' INTERPRETATION OF 'ATTENDANCE' AS BEGINNING

  WITH THE FIRST DAY OF INCARCERATION SLIGHTS THE STATUTORY

  REQUIREMENT THAT ATTENDANCE BE IN COURT.  A WITNESS MIGHT BE

DETAINED MANY DAYS BEFORE THE CASE IN WHICH HE IS TO TESTIFY IS

  CALLED FOR TRIAL.  DURING THAT TIME THERE IS LITERALLY NO COURT

  IN SESSION IN WHICH HE COULD CONCEIVABLE BE CONSIDERED TO BE IN

  ATTENDANCE."  ANTE, AT 583. 

THE COURT HOLDS, IN OTHER WORDS, THAT IF THE COURT IS NOT IN SESSION,
THEN A JAILED MATERIAL WITNESS CANNOT BE SAID TO BE "ATTENDING IN . . .
COURT."  BUT THE CORRECT INTERPRETATION OF THE PHRASE, "IN COURT," IS
NOT AS OBVIOUS AS IT WOULD AT FIRST APPEAR.  READ LITERALLY, THE PHRASE
WOULD APPEAR TO REQUIRE THAT THE WITNESS SPEND THE DAY WITHIN THE FOUR
WALLS OF THE COURTROOM, OR AT THE VERY LEAST, THE COURTHOUSE.  YET THE
COURT RECOGNIZES, AND THE GOVERNMENT CONCEDES, THAT A WITNESS CAN BE
"IN COURT" EVEN IF HE IS IN A HOTEL ROOM OR A RESTAURANT.  I SHARE THE
VIEW THAT PHYSICAL PRESENCE IN THE COURTROOM IS NOT REQUIRED TO BRING A
WITNESS WITHIN THE REACH OF THE STATUTE.  BUT I CANNOT ACCEPT THE
COURT'S CONCLUSION THAT A WITNESS IS "IN COURT"  OR NOT "IN COURT,"
DEPENDING ON WHETHER OR NOT THE JUDICIAL PROCEEDING IS TECHNICALLY
UNDER WAY. 

UNFORTUNATELY, THE GOVERNMENT HAS NOT DESCRIBED ITS PRACTICE IN
COMPENSATING WITNESSES UNDER SEC. 1821 WITH THE KIND OF SPECIFICITY
THAT WOULD SIMPLIFY OUR ANALYSIS.  IT WOULD SEEM PLAUSIBLE, HOWEVER, TO
ASSUME THAT THE PRACTICE MIGHT BE AS FOLLOWS:  A WITNESS SUBPOENAED TO
APPEAR ON TUESDAY MORNING MAY SPEND ALL OF MONDAY EN ROUTE TO THE
COURTHOUSE, ONLY TO LEARN ON TUESDAY THAT THE CASE WILL NOT BE CALLED
AS EARLY AS EXPECTED.  IF THE WITNESS WAITS IN THE WITNESS ROOM ALL DAY
EACH DAY UNTIL THE CASE IS FINALLY CALLED ON FRIDAY, IT WOULD SEEM
REASONABLE TO ASSUME THAT HE IS ENTITLED TO COMPENSATION FOR HIS
ATTENDANCE ON TUESDAY, WEDNESDAY, AND THURSDAY, EVEN THOUGH THE
PROCEEDING DID NOT BEGIN UNTIL FRIDAY.  WHATEVER THE GOVERNMENT'S
PRACTICE IN SUCH A CASE, I WOULD HOLD THAT THE PAYMENT OF COMPENSATION
FOR THOSE THREE DAYS WOULD BE PERMITTED, IF NOT REQUIRED, BY THE TERMS
OF THE STATUTE.  YET UNDER THE COURT'S RIGID ANALYSIS OF THE PHRASE,
"IN COURT," IT WOULD BE UNLAWFUL FOR THE GOVERNMENT TO COMPENSATE THE
WITNESS, EXCEPT FOR THE DAYS SPENT TRAVELING TO AND FROM THE
COURTHOUSE, FOR ANY DAY EXCEPT FRIDAY.  THE COURT IS APPARENTLY BOUND
TO HOLD THAT NOTWITHSTANDING THE PHYSICAL PRESENCE OF THE WITNESS IN
THE COURTHOUSE, HE WAS NOT "IN COURT"  BECAUSE THE COURT WAS NOT YET IN
SESSION. 

THE OBVIOUS SHORTCOMING OF THE COURT'S ANALYSIS IS ITS DISREGARD, IN
CONSTRUING THE CRITICAL STATUTORY PHRASE, OF THE PURPOSES OF THE
STATUTE.  THE STATUTE IS GROUNDED ON THE VIEW THAT A SUBPOENA TO APPEAR
AND GIVE TESTIMONY WILL OFTEN ENTAIL SUBSTANTIAL DISRUPTION OF ONE'S
AFFAIRS, A LOSS OF INCOME, AND CONSIDERABLE INCONVENIENCE.  THESE
DISLOCATIONS, FOR WHICH CONGRESS HAS AUTHORIZED COMPENSATION, /2/  WILL
EXIST WHETHER A WITNESS IS REQUIRED TO WAIT IN A WITNESS ROOM, A
PROSECUTOR'S OFFICE, A COURTROOM, OR A HOTEL ROOM.  FOR THAT REASON,
THE COURT IS CORRECT IN ITS CONCLUSION THAT A WITNESS MAY BE "IN COURT"
FOR THE PURPOSES OF THE STATUTE EVEN THOUGH HE IS NOT, IN FACT, IN THE
COURTHOUSE.  BUT THAT SAME PURPOSIVE ANALYSIS REFUTES THE COURT'S
SUGGESTION THAT THE PENDENCY OF A JUDICIAL PROCEEDING IS A PRECONDITION
TO THE PAYMENT OF WITNESS FEES.  SURELY THE FACT THAT THE COURT IS NOT
YET IN SESSION IS SMALL COMFORT TO THE WITNESS WHO IS REQUIRED TO
APPEAR AND WAIT FOR THE CALLING OF HIS CASE.  HIS DAILY LOSS OF INCOME
DOES NOT MYSTERIOUSLY INCREASE AS SOON AS THE JUDGE APPEARS BEHIND THE
BENCH.  NOR, IF HE IS UNLUCKY ENOUGH TO BE HELD IN CUSTODY FOR WANT OF
BAIL, DOES THE INFRINGEMENT ON HIS LIBERTY BECOME LESS BURDENSOME OR
THE ASSAULT ON HIS DIGNITY LESS SEVERE.  WHATEVER THE STATUS OF THE
JUDICIAL PROCEEDING, IT REMAINS CLEAR THAT THE WITNESS IS HELD IN JAIL
FOR A SINGLE PURPOSE:  TO SERVE THE INTERESTS OF THE COURT.  AND IT IS
THE UNQUESTIONED PURPOSE OF THE STATUTE TO INSURE THAT WITNESSES WHO
ARE INCONVENIENCE TO SERVE THE INTERESTS OF THE COURT ARE COMPENSATED,
AT LEAST IN PART, FOR THE SERVICE THEY HAVE GIVEN.  I CANNOT ASCRIBE TO
CONGRESS THE ESSENTIALLY IRRATIONAL VIEW THAT A DAY SPENT IN ATTENDANCE
ON A PENDING TRIAL IS INHERENTLY A DAY MORE WORTHY OF COMPENSATION THAN
A DAY SPENT IN ATTENDANCE ON A TRIAL THAT IS NOT YET UNDER WAY. 
NOTHING SHOULD OR WAS INTENDED TO TURN ON WHETHER A TRIAL IS ACTUALLY
IN PROGRESS. 

        II 

MY CONCLUSION THAT THE MAJORITY HAS MISCONSTRUED THE STATUTE IS
FORTIFIED BY THE CONVICTION THAT THE STATUTE, AS INTERPRETED BY THE
COURT, WOULD BE INVALID UNDER THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  BOLLING V. SHARPE, 347 U.S. 497(1954).  THE MAJORITY
DISCERNS A 

"REASONABLE BASIS FOR DISTINGUISHING THE COMPENSATION PAID FOR
PRETRIAL DETENTION FROM THE FEES PAID FOR ATTENDANCE AT TRIAL. 
PRETRIAL CONFINEMENT WILL FREQUENTLY BE LONGER THAN THE PERIOD OF
CONFINEMENT THE GOVERNMENT MUST BEAR THE COST OF FOOD, LODGING, AND
SECURITY FOR DETAINED WITNESSES.  CONGRESS COULD THUS REASONABLY
DETERMINE THAT WHILE SOME COMPENSATION SHOULD BE PROVIDED DURING THE
PRETRIAL DETENTION PERIOD, A MINIMAL AMOUNT WAS JUSTIFIED, PARTICULARLY
IN VIEW OF THE FACT THAT THE WITNESS HAS A PUBLIC OBLIGATION TO
TESTIFY."  ANTE, AT 590. 

IN MY VIEW, THAT ASSERTION IS INADEQUATE TO THE TASK OF JUSTIFYING
THIS DISCRIMINATORY CLASSIFICATION SCHEME.  FIRST, AS CONSTRUED BY THE
COURT, THE SCHEME CLEARLY DOES NOT TREAT JAILED MATERIAL WITNESSES IN A
MANNER WHICH IS IN ANY SENSE EQUIVALENT TO THE TREATMENT OF SUBPOENAED
WITNESSES.  RATHER, THE COURT ESTABLISHES TWO DISTINCT CLASSES OF
INCONVENIENCE WITNESSES:  THOSE WHO ARE BURDENED BY A SUBPOENA TO
APPEAR, AND WHO RECEIVE COMPENSATION FOR EACH DAY OF DISLOCATION; AND
THOSE WHO ARE BURDENED BY A TERM IN JAIL, BUT WHO ARE COMPENSATED ONLY
FOR THE DAYS OF DISLOCATION WHICH FOLLOW THE INCEPTION OF TRIAL.  THE
COURT APPARENTLY DENIES THIS INEQUALITY, ASSERTING THAT "(DURING THE
PERIOD THAT ELAPSES BEFORE HIS ATTENDANCE ON A COURT, A WITNESS WHO IS
NOT INCARCERATED GETS NO COMPENSATION WHATEVER FROM THE GOVERNMENT.  AN
INCARCERATED WITNESS, ON THE OTHER HAND, GETS ONE DOLLAR A DAY DURING
THAT PERIOD, IN ADDITION TO SUBSISTENCE IN KIND."  ANTE, AT 590.  BUT
THE APPROPRIATE POINT OF COMPARISON IS NOT THE TREATMENT OF
INCARCERATED WITNESSES BEFORE TRIAL WITH THE TREATMENT OF
NONINCARCERATED WITNESSES BEFORE TRIAL.  THE STATEMENT THAT A
SUBPOENAED WITNESS RECEIVES NO COMPENSATION FOR THE PERIOD WHICH
PRECEDES THE ONSET OF TRIAL IS TRUE BUT IRRELEVANT.  NATURALLY THE
WITNESS RECEIVES NO COMPENSATION; HE HAS SUSTAINED NO INJURY.  BY
HYPOTHESIS, THE SUBPOENA DIRECTS THE WITNESS TO APPEAR AT A TIME WHEN
TRIAL IS AT LEAST SCHEDULED TO BEGIN.  IN PRACTICAL EFFECT, THEREFORE,
THE SUBPOENAED WITNESS IS COMPENSATED IN FULL FOR EACH DAY OF
INCONVENIENCE, WHILE THE JAILED WITNESS MAY ENDURE THE "INCONVENIENCE"
OF A LENGTHY TERM IN JAIL AND RECEIVE SIGNIFICANT COMPENSATION ONLY FOR
THE DAYS OF CONFINEMENT WHICH HAPPEN TO COINCIDE WITH TRIAL. 

MOREOVER, THIS DISCRIMINATION AGAINST JAILED WITNESSES CANNOT BE
JUSTIFIED BY REFERENCE TO THE FACT-- AGAIN, TRUE BUT IRRELEVANT-- THAT
THE "WITNESS HAS A PUBLIC OBLIGATION" IS IMPOSED ON THE SUBPOENAED
WITNESS, AND THE EXISTENCE OF THE OBLIGATION DOES NOT RATIONALIZE THE
HEAVIER BURDEN PLACED ON THE JAILED WITNESS IN SEEKING COMPENSATION FOR
HIS DAYS OF DISLOCATION.  AND SINCE THE JAILED WITNESS CARRIES THE SAME
OBLIGATION TO TESTIFY BOTH BEFORE AND AFTER TRIAL HAS BEGUN, ITS
EXISTENCE DOES NOT EXPLAIN A SCHEME THAT PROVIDES SIGNIFICANT
COMPENSATION ONLY FOR DAYS OF CONFINEMENT DURING TRIAL. 

IF THE STATUTORY SCHEME IS TO BE UPHELD, IT CAN ONLY BE ON THE
THEORY THAT CONGRESS HAS MADE A RATIONAL ATTEMPT TO IMPOSE SOME LIMITS
ON THE AMOUNT OF MONEY WHICH WILL BE PAID OUT TO ANY GIVEN WITNESS
UNDER THE SCHEME.  I CAN ASSUME THAT THE IMPOSITION OF SUCH A CEILING
ON EXPENDITURES IS, IN ITSELF, A PERMISSIBLE GOAL.  AND SINCE WITNESS
FEES COULD, IN SOME INSTANCES, REACH STAGGERING AMOUNTS, I CAN ASSUME
THAT CONGRESS HAS THE POWER TO IMPOSE AN ACROSS-THE-BOARD CUTOFF--
E.G., $1,000 PER WITNESS-- ON THE FEES ALLOWABLE UNDER THE ACT.  BUT
THESE ASSUMPTIONS DO NOT RELIEVE US OF THE OBLIGATION TO DETERMINE
WHETHER THE PARTICULAR APPROACH CONGRESS HAS USED IN IMPOSING A CUTOFF
IS SUFFICIENTLY RATIONAL TO WITHSTAND CONSTITUTIONAL ATTACK.  CF.
DANDRIDGE V. WILLIAMS, 397 U.S. 471, 483-487(1970).  I CONCLUDE THAT IT
IS NOT. 

AS THE COURT CONSTRUES THE STATUTORY SCHEME, A MATERIAL WITNESS WHO IS
HELD IN JAIL FOR FOUR MONTHS IN ANTICIPATION OF A ONE-DAY TRIAL WILL
RECEIVE IN COMPENSATION $141-- $1 PER DAY FOR EACH OF 120 DAYS, AND $21
FOR THE DAY OF THE TRIAL.  BY CONTRAST, A WITNESS WHO IS SUBPOENAED TO
APPEAR ON THE FIRST DAY OF THE TRIAL BUT WHO, AS A RESULT OF
PRELIMINARY MOTIONS, ADJOURNMENT, AND MISCELLANEOUS DELAYS, IS NOT
CALLED TO APPEAR UNTIL TWO WEEKS HAVE PASSED, WILL RECEIVE $280 IN
COMPENSATION, PLUS A SUBSISTENCE ALLOWANCE.  HOWEVER LEGITIMATE THE
GOVERNMENTAL INTEREST IN IMPOSING SOME LIMIT ON THE EXPENDITURE OF
MONEY TO WITNESSES, THE MERE ASSERTION OF THAT INTEREST CANNOT SAVE A
CLASSIFICATION SCHEME THAT PAYS TO A WITNESS WHO SPENDS TWO WEEKS IN A
HOTEL A SUM OF MONEY GREATLY IN EXCESS OF THE AMOUNT MADE AVAILABLE TO
ONE WHO SPENDS FOUR MONTHS IN THE LESS CONGENIAL ATMOSPHERE OF A
COURTHOUSE JAIL.  I CAN SEE NO RATIONAL BASIS FOR THIS APPALLING
DIFFERENCE IN TREATMENT.  /3/ 

THE CLASSIFICATION SCHEME WE UPHOLD TODAY CANNOT BE CONSIDERED A
RATIONAL ATTEMPT TO PRESERVE THE GOVERNMENT'S FINANCIAL RESOURCES.  /4/
REGRETTABLY, IT SEEMS TO ME LITTLE MORE THAN AN ATTEMPT TO PUNISH
THOSE WHO ARE UNABLE TO GIVE BAIL AS A GUARANTEE OF THEIR APPEARANCE AT
TRIAL, AND WHO, ALMOST BY DEFINITION, LACK THE POWER AND RESOURCES TO
REMEDY THEIR UNFORTUNATE PLIGHT.  AS MY BROTHER DOUGLAS POINTS OUT,
"(WE CANNOT ALLOW THE GOVERNMENT'S INSISTENT REFERENCE TO THESE MEXICAN
CITIZENS AS 'DEPORTABLE ALIENS' TO OBSCURE THE FACT THAT THEY COME
BEFORE US AS INNOCENT PERSONS WHO HAVE NOT BEEN CHARGED WITH A CRIME OR
INCARCERATED IN ANTICIPATION OF A CRIMINAL PROSECUTION."  POST, AT
604.  THEY HAVE BEEN HELD IN CUSTODY ONLY TO INSURE THEIR PRESENCE AT
TRIAL.  I WOULD NOT IMPUTE TO CONGRESS AN INTENT TO PENALIZE THESE
PETITIONERS BY HOLDING THE INJURY THEY HAVE SUFFERED LESS WORTHY OF
COMPENSATION THAN THE INCONVENIENCE TO A WITNESS WHO IS SUBPOENAED TO
APPEAR AT TRIAL.  I WOULD HOLD, CONSISTENTLY WITH A FAIR READING OF THE
STATUTE IN LIGHT OF ITS PURPOSES, THAT PETITIONERS ARE ENTITLED TO
COMPENSATION AT THE RATE OF $21 PER DAY FOR EACH DAY THEY SPEND IN
CUSTODY WHILE AWAITING THE CALL TO APPEAR IN COURT. 

/1/  FED. RULE CRIM. PROC. 46(B), AT THE TIME THIS CASE AROSE,
PROVIDED THAT WHERE A WITNESS' TESTIMONY WAS "MATERIAL" IN ANY CRIMINAL
PROCEEDING AND WHERE IT MIGHT BECOME IMPRACTICABLE TO SECURE THE
PRESENCE OF THE WITNESS BY SUBPOENA, THE COURT MIGHT REQUIRE THE
WITNESS TO GIVE BAIL FOR HIS APPEARANCE.  IF THE WITNESS FAILED TO GIVE
BAIL, THE COURT MIGHT ORDER HIS INCARCERATION PENDING FINAL DISPOSITION
OF THE PROCEEDING IN WHICH HIS TESTIMONY WAS NEEDED. 

/2/  THE GOVERNMENT ARGUES AT LENGTH THAT CONGRESS DID NOT INTEND TO
PROVIDE FULL COMPENSATION TO A WITNESS OR TO INSURE THE WITNESS AGAINST
ALL LOST EARNINGS.  SEE BRIEF FOR UNITED STATES 16-24.  THE GOVERNMENT
DOES NOT DISPUTE, HOWEVER, THAT THE CONGRESSIONAL PURPOSE WAS TO
PROVIDE AT LEAST PARTIAL COMPENSATION FOR THE EXPENSES, DISLOCATION,
AND INCOME LOSS ATTRIBUTABLE TO COMPELLED ATTENDANCE AS A WITNESS. 
/3/  OF COURSE, WHERE THE GOVERNMENT DETAINS A MATERIAL WITNESS PENDING
TRIAL, ITS TOTAL FINANCIAL BURDEN IS NOT LIMITED TO THE PAYMENT OF $1
PER DAY UNDER 28 U.S.C. 1821.  THE GOVERNMENT ALSO ASSUMES THE EXPENSE
OF FEEDING AND HOUSING THE INCARCERATED WITNESS.  NEVERTHELESS, I
CANNOT CONCLUDE THAT THIS ADDED EXPENSE AFFORDS A RATIONAL BASIS FOR
IMPOSING AN ARBITRARY CEILING ON THE PAYMENT OF WITNESS FEES TO A
JAILED WITNESS.  FIRST, THE GOVERNMENT MAKES NO ATTEMPT TO JUSTIFY THE
STATUTE ON THIS GROUND, AND WE ARE NOT ADVISED OF THE MARGINAL COST TO
THE FEDERAL GOVERNMENT OF HOLDING A MATERIAL WITNESS IN AN EXISTING
PENAL FACILITY.  SECOND, THE LEGISLATIVE HISTORY OF THE SCHEME
EVIDENCES NO PARTICULAR CONGRESSIONAL CONCERN FOR THE COSTS OF
INCARCERATION, NOR ANY EFFORT TO LIMIT THE PAYMENT OF WITNESS FEES
BECAUSE OF THIS ADDED EXPENSE.  THIRD, EVEN IF THE MARGINAL COSTS OF
INCARCERATION ARE SUBSTANTIAL, THAT FACT CANNOT EXPLAIN THE ABSENCE OF
ANY LIMITS WHATSOEVER ON THE WITNESS FEES THAT CAN BE PAID TO A
NONINCARCERATED WITNESS.  AND SINCE A NONINCARCERATED WITNESS MAY BE
ELIGIBLE FOR A SUBSISTENCE ALLOWANCE OF $16 PER DAY IN ADDITION TO THE
$20 DAILY FEE, THE AMOUNT OF MONEY INVOLVED CAN BE VERY LARGE INDEED. 
FINALLY, AND MOST IMPORTANT, WHILE THE GOVERNMENT HAS AN OBVIOUS
INTEREST IN LIMITING ITS TOTAL EXPENDITURE ON WITNESSES-- INCLUDING THE
PAYMENT OF FEES, SUBSISTENCE ALLOWANCES, AND INCARCERATION COSTS-- THAT
INTEREST CANNOT EXPLAIN THE PAYMENT OF HIGHER PER DIEM FEES TO
NONINCARCERATED WITNESSES THAN TO INCARCERATED WITNESSES.  EVEN IF THE
COST OF KEEPING A WITNESS IN JAIL IS $36 PER DAY, WHICH IS THE AMOUNT
PAID EACH DAY TO A NONINCARCERATED WITNESS, IT DOES NOT FOLLOW THAT THE
PAYMENTS ARE EQUIVALENT FROM THE STANDPOINT OF THE WITNESSES.  THE
JAILED WITNESS IS INCONVENIENCE NO LESS THAN THE SUBPOENAED WITNESS,
YET HIS THREAT OF COMPENSATION IS DRAMATICALLY, AND INEXPLICABLY,
LESS. 

/4/  NOR CAN THE SCHEME BE JUSTIFIED ON THE THEORY THAT ONE WHO IS
TOO POOR TO GIVE BAIL DESERVES ONLY MINIMAL COMPENSATION BECAUSE HE IS
UNLIKELY TO INCUR ANY GREAT FINANCIAL LOSS DURING THE PERIOD OF
INCARCERATION.  THE FACT THAT A WITNESS IS UNABLE TO GIVE BAIL IS
HARDLY AN INDICATION THAT HE IS UNEMPLOYED.  IN ANY CASE, THE STATUTE
IS DESIGNED TO COMPENSATE THE WITNESS NOT ONLY FOR THE LOSS OF INCOME,
BUT ALSO FOR THE INCONVENIENCE AND DISRUPTION OF HIS PERSONAL AFFAIRS. 
INCONVENIENCE IS NOT THE EXCLUSIVE PROPERTY OF THE RICH.  MOREOVER, THE
WITNESS WHO CANNOT GIVE BAIL IS LIKELY TO BE THE ONE MOST IN NEED WHILE
HE WAITS IN JAIL FOR THE BEGINNING OF TRIAL.  AS ENACTED BY CONGRESS,
THE SCHEME WAS THOUGHT TO PROVIDE COMPENSATION IN AN AMOUNT THAT IS
"MORE OR LESS ARBITRARY, BUT CONSIDERED TO BE REASONABLY FAIR.  THERE
IS NO INDICATION THAT CONGRESS THOUGHT SOME WITNESSES WERE SO POOR THAT
THEY COULD BE DEEMED INDIFFERENT TO COMPENSATION. 

THUS, THE GOVERNMENT'S ASSERTION THAT "PAYMENT OF $21 PER DAY WOULD
SERVE AS A CHANCE BONUS" FOR PERSONS LIKE PETITIONERS WHO PRESUMABLY
EARN LESS THAN THAT AMOUNT PER DAY, BRIEF FOR UNITED STATES 31, MISSES
THE POINT OF THE STATUTORY SCHEME.  BY THAT REASONING, THE SCHEME WOULD
OFFER THE SAME "CHANCE BONUS" TO A WITNESS WHO EARNS $50,000 PER YEAR,
BUT WHO IS NOT REQUIRED TO PERFORM A DAILY SERVICE TO EARN THAT
INCOME.  WEALTH IS NOT A GUARANTEE THAT INCOME LOSS IS SUBSTANTIAL,
JUST AS POVERTY IS NOT A GUARANTEE THAT THE INCOME LOSS IS TRIVIAL. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IN MY VIEW, PETITIONERS, ALL INDIGENTS, HAVE BEEN SUBJECT TO
DISCRIMINATION "SO UNJUSTIFIABLE AS TO BE VIOLATIVE OF DUE PROCESS." 
BOLLING V. SHARPE, 347 U.S. 497, 499. 

PETITIONERS, CITIZENS OF MEXICO ALLEGEDLY BROUGHT INTO THE UNITED
STATES ILLEGALLY, BELONG TO THAT CLASS OF PERSONS WHO AS MATERIAL
WITNESSES CAN BE SUBPOENAED TO TESTIFY.  EACH MUST SUFFER AT LEAST
LIMITED INVASION OF HIS PERSONAL LIBERTY TO FULFILL HIS PUBLIC
OBLIGATION TO PROVIDE EVIDENCE.  SEE UNITED STATES.  V. BRYAN, 339 U.S.
323, 331; BLAIR V. UNITED STATES, 250 U.S. 273, 281.  PETITIONERS,
HOWEVER, ALSO BELONG TO A DISCRETE SUBCLASS-- THOSE WHOSE PRESENCE IT
MIGHT BE IMPRACTICAL TO SECURE BY SUBPOENA AND THUS WERE SUBJECT TO
DETENTION PURSUANT TO FORMER FED. RULE CRIM. PROC. 46(B) /1/  IF THEY
COULD NOT POST BAIL.  THE DEPRIVATION THEY SUFFER IS LONGER AND MORE
EXTENSIVE THAN THAT OF THE WITNESS MERELY SUBJECT TO A SUBPOENA.  THEY
MAY SPEND MONTHS IN JAIL AWAITING THE FEW MINUTES OR HOURS THEY WILL
SPEND TESTIFYING.  UNLIKE OTHER WITNESSES, THEY ARE NOT FREE TO COME OR
GO WHILE THE TRIAL IS NOT ACTUALLY IN PROGRESS.  NEVERTHELESS, THE
JUSTIFICATION FOR INFRINGING THEIR LIBERTY REMAINS THE SAME.  FORMER
RULE 46(B) WAS CONCEIVED AS A TOOL /2/  TO INSURE THAT THE WITNESS IS
AVAILABLE TO TESTIFY, AND ANY TIME SPENT INCARCERATED IS SPENT AS A
DIRECT RESULT OF THE OBLIGATION THAT BURDENS ALL MATERIAL WITNESSES. 
THE COMPARISON WE ARE CONCERNED WITH, THEN IS BETWEEN THE COMPENSATION
PAID TO THE INCARCERATED WITNESS DURING THE ENTIRE PERIOD HIS FREEDOM
TO COME OR GO IS CURTAILED AND THE COMPENSATION PAID TO A
NONINCARCERATED WITNESS DURING THE ENTIRE PERIOD HE IS SUBJECT TO
RESTRAINT.  ALTHOUGH IT IS TRUE, AS THE MAJORITY NOTES, THAT THE
NONINCARCERATED WITNESS IS PAID NOTHING AT ALL WHILE COURT IS NOT IN
SESSION, THE TWO CLASSES ARE HARDLY COMPARABLY SITUATED AT THE TIME,
FOR THE NONINCARCERATED WITNESS IS NOT SUBJECT TO ANY SUBSTANTIAL
RESTRAINT AS A RESULT OF HIS SUBPOENA. 

CONGRESS HAS SEEN FIT TO COMPENSATE ALL MATERIAL WITNESSES AT THE
PER DIEM RATE OF $20 FOR EACH DAY'S ATTENDANCE "IN ANY COURT" (AS
DEFINED BY THE MAJORITY) AND FOR THE NECESSARY TRAVEL TIME.  28 U.S.C.
1821.  YET, CONGRESS COMPENSATES THOSE INCARCERATED PURSUANT TO FORMER
RULE 46(B) AT THE PER DIEM RATE OF ONLY $1.  THUS, NOT ONLY ARE
PETITIONERS SUBJECT TO MORE EXTENSIVE DEPRIVATION OF PERSONAL FREEDOM,
THEY ALSO ARE DENIED EQUIVALENT COMPENSATION WHILE WAITING TO TESTIFY. 
/3/  BECAUSE FORMER RULE 46(B) PROVIDED THAT ONLY WITNESSES WHO FAILED
TO POST BAIL MIGHT BE INCARCERATED, THIS DISCRIMINATION IN PRACTICE
AFFECTED JUST THE INDIGENT AND RESULTED, THEREFORE, IN A SUSPECT
CLASSIFICATION BASED UPON WEALTH.  THIS INVIDIOUS DISCRIMINATION
AGAINST THE POVERTY-STRICKEN CANNOT BE SUPPORTED BY SOME SPECULATIVE
RATIONAL JUSTIFICATION.  ORTWEIN V. SCHWAB, POST, P. 661 (DOUGLAS, J.,
DISSENTING); UNITED STATES V. KRAS, 409 U.S. 434, 457 (OPINION OF
DOUGLAS AND BRENNAN, JJ.); BODDIE V. CONNECTICUT, 401 U.S. 371, 383
(DOUGLAS, J., CONCURRING IN RESULT).  SURELY, THE GOVERNMENT'S DESIRE
TO AVOID THE COSTS OF COMPENSATION IN ADDITION TO THE INCREASED COSTS
OF FOOD, LODGING, AND SECURITY DOES NOT RISE ABOVE THAT LEVEL.  /4/
SEE BODDIE V. CONNECTICUT, SUPRA, AT 832; SHAPIRO V. THOMPSON, 394 U.S.
618, 633. 

THE MAJORITY "CANNOT SAY THAT THERE IS NO REASONABLE BASIS FOR
DISTINGUISHING THE COMPENSATION PAID FOR PRETRIAL DETENTION FROM THE
FEES PAID FOR ATTENDANCE AT TRIAL."  I AM NOT CERTAIN I CAN AGREE EVEN
WITH THAT POSITION.  THE MAGIC TRANSITION PERIOD UNDER THE STATUTE /5/
AS CONSTRUED BY THE MAJORITY IS THE BEGINNING OF TRIAL.  I DO NOT SEE
HOW IT BEARS ANY RELEVANCE TO THE QUALITY OF CONFINEMENT; PETITIONERS
SACRIFICE THEIR TIME WAITING TO TESTIFY WHETHER OR NOT COURT IS IN
SESSION. 

GRIFFIN V. ILLINOIS, 351 U.S. 12, HELD THAT AN INDIGENT DEFENDANT IS
DENIED EQUAL PROTECTION OF THE LAWS IF HE IS BARRED FROM APPEALING ON
EQUAL TERMS WITH OTHER DEFENDANTS SOLELY BECAUSE OF THIS INDIGENCE.  IN
BANDY V. UNITED STATES, 82 S.CT. 11, 7 L.ED.2D 9 (DOUGLAS, J., IN
CHAMBERS), I CONCLUDED THAT "NO MAN SHOULD BE DENIED RELEASE (PENDING
TRIAL OR JUDICIAL REVIEW) BECAUSE OF INDIGENCE."  ID., AT 13, 7 L.ED,
AT 11.  THIS PRINCIPLE SEEMS EVER CLEARER AND MORE FORCEFUL TO ME IN
CIRCUMSTANCES WHERE THE IMPRISONED HAVE NOT BEEN CHARGED WITH OR
CONVICTED OF A CRIME.  WE CANNOT ALLOW THE GOVERNMENT'S INSISTENT
REFERENCE TO THESE MEXICAN CITIZENS AS "DEPORTABLE ALIENS" TO OBSCURE
THE FACT THAT THEY COME BEFORE US AS INNOCENT PERSONS WHO HAVE NOT BEEN
CHARGED WITH A CRIME OR INCARCERATED IN ANTICIPATION OF A CRIMINAL
PROSECUTION.  IT IS TRUE, OF COURSE, THAT PETITIONERS DO NOT CHALLENGE
THE CONSTITUTIONALITY OF CONFINING A MATERIAL WITNESS.  BUT, IN THEIR
PRAYER FOR RELIEF, THEY SEEK TO ENJOIN THE GOVERNMENT "FROM ANY FURTHER
INCARCERATION OF ANY PERSON UNDER SUCH RULE UNDER THE PRESENT
INTERPRETATION OF 28 U.S.C. 1821 AT ONE DOLLAR ($1.00) PER DAY TOTAL
PAYMENT."  I CONCLUDE THAT PETITIONERS ARE ENTITLED TO THIS RELIEF
UNLESS THEY ARE RELEASED ON THEIR PERSONAL RECOGNIZANCE. 

/1/  RULE 46(B), AT THE TIME THIS CASE AROSE AND BEFORE RULE 46 WAS
AMENDED TO CONFORM IT TO THE BAIL REFORM ACT OF 1966, READ: 

"BAIL FOR WITNESS. 

"IF IT APPEARS BY AFFIDAVIT THAT THE TESTIMONY OF A PERSON IS
MATERIAL IN ANY CRIMINAL PROCEEDING AND IF IT IS SHOWN THAT IT MAY
BECOME IMPRACTICABLE TO SECURE HIS PRESENCE BY SUBPOENA, THE COURT OR
COMMISSIONER MAY REQUIRE HIM TO GIVE BAIL FOR HIS APPEARANCE AS A
WITNESS, IN AN AMOUNT FIXED BY THE COURT OR COMMISSIONER.  IF THE
PERSON FAILS TO GIVE BAIL THE COURT OR COMMISSIONER MAY COMMIT HIM TO
THE CUSTODY OF THE MARSHALL PENDING FINAL DISPOSITION OF THE PROCEEDING
IN WHICH THE TESTIMONY IS NEEDED, MAY ORDER HIS RELEASE IF HE HAS BEEN
DETAINED FOR AN UNREASONABLE LENGTH OF TIME AND MAY MODIFY AT ANY TIME
THE REQUIREMENT AS TO BAIL." 

/2/  MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER DISSENTED FROM
SUBMISSION OF THE ORIGINAL RULES OF CRIMINAL PROCEDURE.  323 U.S. 821. 

MR. JUSTICE BLACK AND I IN 1966 OPPOSED THE SUBMISSION OF CERTAIN
AMENDMENTS TO THE RULES OF CRIMINAL PROCEDURE TO THE CONGRESS.  MR.
JUSTICE BLACK'S STATEMENT IS TO BE FOUND AT 383 U.S. 1032, MINE AT 383
U.S. 1089.  WE THOUGHT AT THE TIME THAT SOME OF THE AMENDMENTS
PRESENTED SERIOUS CONSTITUTIONAL QUESTIONS. 

THE FACT THAT THE COURT APPROVED THE RULES WITHOUT READING THEM OR
DEBATING THEM OR WEIGHING THEIR MERITS DOES NOT, OF COURSE, PRECLUDE A
CHALLENGE TO THEIR CONSTITUTIONALITY IN A GIVEN CASE. 

BUT THE IMPRIMATUR OF THIS COURT IS ON THE RULES, AND THAT GIVES
THEM MIGHTY WEIGHT.  IT IS POSSIBLE TO READ FORMER RULE 46(B) AS
PERMITTING RELEASE ON PERSONAL RECOGNIZANCE.  BUT EXPERIENCE HAS SHOWN
THAT JUDGES HAVE NOT SO READ IT.  THE RESULT, AS I INDICATE IN THIS
OPINION, IS THAT FORMER RULE 46(B) HAS BORNE DOWN HEAVILY ON INDIGENTS
WHO WOULD BE GOOD RISKS BUT COULD NOT PUT UP THE MONEY TO BUY A BAIL
BOND.  FORMER RULE 46(B) AS SO CONSTRUED-- AND AS APPLIED IN THE
PRESENT CASE-- IS THEREFORE PLAINLY UNCONSTITUTIONAL.  FILLING OF THE
JAILS OF SAN ANTONIO WITH MEN WHOSE ONLY CRIME IS THE DESIRE TO FIND
WORK AND HOLDING THEM THERE AT THE CAPRICE OF THE PROSECUTOR IS
SHOCKING, TO SAY THE VERY LEAST-- AND TRACEABLE TO THE EASY, OFFHAND
WAY IN WHICH THE COURT HAS SEEMINGLY APPROVED MANY RULES WHICH TOUCH
NOT ONLY MATTERS OF PUBLIC SECURITY BUT INDIVIDUAL LIBERTIES AS WELL. 

/3/  THE SOLICITOR GENERAL ASSERTS THAT "IT IS CERTAINLY NOT
UNREASONABLE OR IRRATIONAL FOR CONGRESS TO AUTHORIZE A MINIMAL SUM AS
PAYMENT TO DEPORTABLE ALIENS.  THERE IS NO INDICATION THAT ILLEGAL
ALIENS, LIKE PETITIONERS, EVEN IF EMPLOYED, WOULD HAVE EARNED WAGES
AVERAGING $20 OR $21 PER DAY FOR A PERIOD OF 30 OR 60 DAYS OR LONGER." 
THIS PROMPTS TWO COMMENTS.  IN EXPLAINING A PREDECESSOR OF THE CURRENT
STATUTE, THE SENATE REPORT STATED: 

"THE AMOUNTS ARRIVED AT IN THIS BILL ARE CONSIDERED TO BE MORE FAIR
THAN PRESENTLY EXISTING AMOUNTS, ALTHOUGH IT IS RECOGNIZED THAT CERTAIN
WITNESSES WILL NOT, UNDER THE PROPOSED RATES, BE ADEQUATELY
COMPENSATED.  IN ORDER TO FAIRLY COMPENSATE EVERYONE APPEARING AS A
WITNESS IT WOULD BE NECESSARY TO HAVE EITHER A GRADUATED SCALE OF FEES,
OR, LEAVE THE AMOUNT OF SUCH FEES IN THE DISCRETION OF THE JUDGE. 
NEITHER WAS CONSIDERED FEASIBLE, AND THEREFORE THE AMOUNTS ARRIVED AT
HEREIN ARE MORE OR LESS ARBITRARY, BUT CONSIDERED TO BE REASONABLY FAIR
TO THE AVERAGE WITNESS."  S. REP. NO. 187, 81ST CONG., 1ST SESS., 2. 

ALSO, IF THE STATUTE IS TO BE MEASURED AS IT APPLIES TO ALIENS, IT
SURELY CREATES A SUSPECT CLASSIFICATION.  SEE TAKAHASHI V. FISH & GAME
COMM'N, 334 U.S. 410. 

/4/  FOR EACH DAY THE GOVERNMENT COMPENSATES A WITNESS AT THE PER
DIEM RATE OF $20, IT ALSO PAYS THE WITNESS $16 TO COVER SUBSISTENCE
EXPENSES.  I CANNOT BELIEVE THAT IT COSTS THE GOVERNMENT MORE THAN $16
A DAY TO FEED AN INCARCERATED WITNESS.  IN ANY EVENT, THE WITNESS
SHOULD NOT BE TAXED WHEN HE IS IMPRISONED FOR THE CONVENIENCE OF THE
GOVERNMENT. 

/5/  THE MAJORITY TRACKS THE LEGISLATIVE HISTORY OF SEC. 1821 AND
CONCLUDES THAT IT IS "UNENLIGHTENING."  WHEN COMPENSATION WAS FIRST
PAID TO INCARCERATED WITNESSES IN 1853, ACT OF FEB. 26, 1853, SEC. 3,
10 STAT. 167, THEY WERE PAID $1 PER DAY, OR 50[ LESS THAN A WITNESS
MERELY ATTENDING COURT.  NO SUBSISTENCE WAS PAID, AND WE CAN ASSUME
THAT THE DIFFERENTIAL RELATED TO THIS FACTOR.  OVER THE YEARS, CONGRESS
HAS INCREASED THE COMPENSATION PAID TO MATERIAL WITNESSES AND ADDED
SUBSISTENCE PAYMENTS WITHOUT INCREASING THE COMPENSATION PAID TO
INCARCERATED WITNESSES.  CONGRESS HAS NOT ADVANCED ANY JUSTIFICATION. 

ALBERT ARMENDARIZ, SR., ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL PETERSEN, DEPUTY
SOLICITOR GENERAL LACOVARA, HARRY R. SACHSE, AND JEROME M. FEIT. 
..END :




BRADLEY V. UNITED STATES, 410 U.S. 605 


       BRADLEY ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 FIRST CIRCUIT

        NO. 71-1304.  ARGUED JANUARY 8, 1973-- DECIDED MARCH 5,

           1973 


ON MAY 6, 1971, PETITIONERS WERE CONVICTED AND SENTENCED FOR
NARCOTICS OFFENSES COMMITTED IN MARCH 1971.  THEY RECEIVED THE MINIMUM
FIVE-YEAR SENTENCES UNDER A PROVISION THAT WAS MANDATORY AND MADE THE
SENTENCES NOT SUBJECT TO SUSPENSION, PROBATION, OR PAROLE.  EFFECTIVE
MAY 1, 1971, THAT PROVISION WAS REPEALED AND LIBERALIZED BY THE
COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970.  ON
PETITIONERS' MOTION FOR VACATION OF THEIR SENTENCES AND REMAND FOR
RESENTENCING, THE COURT OF APPEALS HELD THAT THE NEW PROVISIONS WERE
UNAVAILABLE IN VIEW OF THE ACT'S SAVING CLAUSE, WHICH MADE THEM
INAPPLICABLE TO "PROSECUTIONS" ANTEDATING THE ACT'S EFFECTIVE DATE. 
HELD: 

1.  THE WORD "PROSECUTIONS" IN THE SAVING CLAUSE IS TO BE ACCORDED
ITS NORMAL LEGAL SENSE, UNDER WHICH SENTENCING IS A PART OF THE CONCEPT
OF PROSECUTION.  THEREFORE, THE SAVING CLAUSE BARRED THE DISTRICT JUDGE
FROM SUSPENDING SENTENCE OR PLACING PETITIONERS ON PROBATION.  PP. 607
610. 

2.  UNDER THE SAVING CLAUSE, PAROLE UNDER 18 U.S.C. 4208(A) IS
LIKEWISE UNAVAILABLE TO PETITIONERS, SINCE BY ITS TERMS THAT PROVISION
IS INAPPLICABLE TO OFFENSES FOR WHICH A MANDATORY PENALTY IS PROVIDED;
AND, IN ANY EVENT, A DECISION TO GRANT EARLY PAROLE UNDER THAT
PROVISION MUST BE MADE "(UPON ENTERING A JUDGMENT OF CONVICTION,"
WHICH OCCURS BEFORE THE END OF THE PROSECTUION.  PP. 610-611. 

455 F.2D 1181, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED, AND IN
PART I OF WHICH BRENNAN AND WHITE, JJ., JOINED.  BRENNAN AND WHITE,
JJ., FILED A STATEMENT CONCURRING IN THE JUDGMENT, POST, P. 611. 
DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 612. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE MUST DECIDE WHETHER A DISTRICT JUDGE MAY IMPOSE A
SENTENCE OF LESS THAN FIVE YEARS, SUSPEND THE SENTENCE, PLACE THE
OFFENDER ON PROBATION, OR SPECIFY THAT HE BE ELIGIBLE FOR PAROLE, WHERE
THE OFFENDER WAS CONVICTED OF A FEDERAL NARCOTICS OFFENSE THAT WAS
COMMITTED BEFORE MAY 1, 1971, BUT WHERE HE WAS SENTENCED AFTER THAT
DATE.  PETITIONERS WERE CONVICTED OF CONSPIRING TO VIOLATE 26 U.S.C.
4705(A)(1964 ED.)  BY SELLING COCAINE NOT IN PURSUANCE OF A WRITTEN
ORDER FORM, IN VIOLATION OF 26 U.S.C. 7237(B)(1964 ED.).  THE
CONSPIRACY OCCURRED IN MARCH 1971.  AT THAT TIME, PERSONS CONVICTED OF
SUCH VIOLATIONS WERE SUBJECT TO A MANDATORY MINIMUM SENTENCE OF FIVE
YEARS.  THE SENTENCE COULD NOT BE SUSPENDED, NOR COULD PROBATION BE
GRANTED, AND PAROLE PURSUANT TO 18 U.S.C. 4202 WAS UNAVAILABLE.  26
U.S.C. 7237(D)(1964 ED. AND SUPP. V).  THESE PROVISIONS WERE REPEALED
BY SECS. 1101(B)(3)(A) AND (B) AND CONTROL ACT OF 1970, 84 STAT. 1292. 
THE EFFECTIVE DATE OF THAT ACT WAS MAY 1, 1971, FIVE DAYS BEFORE
PETITIONERS WERE CONVICTED. 

EACH PETITIONER WAS SENTENCED TO A FIVE-YEAR TERM.  /1/  ON APPEAL
TO THE COURT OF APPEALS FOR THE FIRST CIRCUIT, VARIOUS POINTS, NOT HERE
RELEVANT, WERE RAISED.  FOLLOWING AFFIRMANCE OF THEIR CONVICTIONS,
PETITIONERS MOVED THAT THEIR SENTENCES BE VACATED AND THEIR CASES BE
REMANDED TO THE DISTRICT COURT FOR RESENTENCING PURSUANT TO FED. RULE
CRIM. PROC. 35.  IN THEIR MOTION THEY CONTENDED THAT THE DISTRICT COURT
SHOULD HAVE CONSIDERED "CERTAIN SENTENCING ALTERNATIVES, INCLUDING
PROBATION, SUSPENSION OF SENTENCE AND PAROLE" WHICH BECAME AVAILABLE ON
MAY 1, 1971.  THE COURT OF APPEALS CONSIDERED THIS MOTION AS AN
"APPENDAGE" TO THE APPEAL.  IT HELD THAT THE SPECIFIC SAVING CLAUSE OF
THE 1970 ACT, SEC. 1103(A), READ AGAINST THE BACKGROUND OF THE GENERAL
SAVING PROVISION, 1 U.S.C. 109, REQUIRED THAT "NARCOTICS OFFENSES
COMMITTED PRIOR TO MAY 1, 1971, ARE TO BE PUNISHED ACCORDING TO THE LAW
IN FORCE AT THE TIME OF THE OFFENSE," AND THAT "UNDER THE MANDATE OF
SEC. 109 THE REPEALED STATUTE, SEC. 7237(D) IS '(TO) BE TREATED AS
STILL REMAINING IN FORCE.'"  455 F.2D 1181, 1190, 1191.  ACCORDINGLY,
THE COURT OF APPEALS HELD THAT THE TRIAL JUDGE LACKED POWER TO IMPOSE A
LESSER SENTENCE. 

WE GRANTED THE PETITION FOR WRIT OF CERTIORARI, 407 U.S. 908(1972),
IN ORDER TO RESOLVE THE CONFLICT BETWEEN THE FIRST AND NINTH CIRCUITS,
SEE UNITED STATES V. STEPHENS, 449 F.2D 103(CA9 1971).  /2/

        I 

AT COMMON LAW, THE REPEAL OF A CRIMINAL STATUTE ABATED ALL
PROSECUTIONS WHICH HAD NOT REACHED FINAL DISPOSITION IN THE HIGHEST
COURT AUTHORIZED TO REVIEW THEM.  SEE BELL V. MARYLAND, 378 U.S. 226,
230(1964); NORRIS V. CROCKER, 13 HOW.  429(1852).  ABATEMENT BY REPEAL
INCLUDED A STATUTE'S REPEAL AND RE-ENACTMENT WITH DIFFERENT PENALTIES. 
SEE 1 J.SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION 2931 N. 2 (3D
ED. 1943).  AND THE RULE APPLIED EVEN WHEN THE PENALTY WAS REDUCED. 
SEE, E.G., THE KING V. M'KENZIE, 168 ENG.REP.  881(CR. CAS. 1820);
BEARD V. STATE, 74 MD. 130, 21 A. 700(1891).  TO AVOID SUCH RESULTS,
LEGISLATURES FREQUENTLY INDICATED AN INTENTION NOT TO ABATE PENDING
PROSECUTIONS BY INCLUDING IN THE REPEALING STATUTE A SPECIFIC CLAUSE
STATING THAT PROSECUTIONS OF OFFENSES UNDER THE REPEALED STATUTE WERE
NOT TO BE ABATED.  SEE GENERALLY NOTE, TODAY'S LAW AND YESTERDAY'S
CRIME:  RETROACTIVE APPLICATION OF AMELIORATIVE CRIMINAL LEGISLATION,
121 U.PA.L.REV.  120, 121-130(1972). 

CONTROL ACT OF 1970 IS SUCH A SAVING CLAUSE.  IT PROVIDES: 

     "PROSECUTIONS FOR ANY VIOLATION OF LAW OCCURRING PRIOR TO THE

  EFFECTIVE DATE OF (THE ACT) SHALL NOT BE AFFECTED BY THE REPEALS

  OR AMENDMENTS MADE BY (IT) . . . OR ABATED BY REASON THEREOF." 

PETITIONERS CONTEND THAT THE WORD "PROSECUTIONS" IN SEC. 1103(A)
MUST BE GIVEN ITS EVERYDAY MEANING.  WHEN PEOPLE SPEAK OF PROSECUTIONS,
THEY USUALLY MEAN A PROCEEDING THAT IS UNDER WAY IN WHICH GUILT IS TO
BE DETERMINED.  IN ORDINARY USAGE, SENTENCING IS NOT PART OF THE
PROSECUTION, BUT OCCURS AFTER THE PROSECUTION HAS CONCLUDED.  IN
PROVIDING THAT "(PROSECUTIONS . . . SHALL NOT BE AFFECTED,"  SEC.
1103(A) MEANS ONLY THAT A DEFENDANT MAY BE FOUND GUILTY OF AN OFFENSE
WHICH OCCURRED BEFORE MAY 1, 1971.  THE REPEAL OF THE STATUTE CREATING
THE OFFENSE DOES NOT, ON THIS NARROW INTERPRETATION OF SEC. 1103(A),
PREVENT A FINDING OF GUILT.  BUT SEC. 1103(A) DOES NOTHING MORE,
ACCORDING TO PETITIONERS. 

ALTHOUGH PETITIONERS' ARGUMENT HAS SOME FORCE, WE BELIEVE THAT THEIR
POSITION IS NOT CONSISTENT WITH CONGRESS' INTENT.  RATHER THAN USING
TERMS IN THEIR EVERYDAY SENSE, "(THE LAW USES FAMILIAR LEGAL
EXPRESSIONS IN THEIR FAMILIAR LEGAL SENSE."  HENRY V. UNITED STATES,
251 U.S. 393, 395(1920).  THE TERM "PROSECUTION"  CLEARLY IMPORTS A
BEGINNING AND AN END.  CF. KIRBY V. ILLINOIS, 406 U.S. 682(1972); MEMPA
V. RHAY, 389 U.S. 128(1967). 

IN BERMAN V. UNITED STATES, 302 U.S. 211(1937), THIS COURT SAID,
"FINAL JUDGMENT IN A CRIMINAL CASE MEANS SENTENCE.  THE SENTENCE IS THE
JUDGMENT.  MILLER V. ADERHOLD, 288 U.S. 206, 210; HILL V. WAMPLER, 298
U.S. 460, 464."  ID., AT 212.  IN THE LEGAL SENSE, A PROSECUTION
TERMINATES ONLY WHEN SENTENCE IS IMPOSED.  SEE ALSO KOREMATSU V. UNITED
STATES, 329 U.S. 432(1943); UNITED STATES V. MURRAY, 275 U.S.
347(1928); AFFRONTI V. UNITED STATES, 350 U.S. 79(1955).  /3/  SO LONG
AS SENTENCE HAS NOT BEEN IMPOSED, THEN, SEC. 1103(A) IS TO LEAVE THE
PROSECUTION UNAFFECTED.  /4/ 

WE THEREFORE CONCLUDE THAT THE COURT OF APPEALS PROPERLY REJECTED
PETITIONERS' MOTION TO VACATE SENTENCE AND REMAND FOR RESENTENCING. 
THE DISTRICT JUDGE HAD NO POWER TO CONSIDER SUSPENDING PETITIONERS'
SENTENCES OR PLACING THEM ON PROBATION.  THOSE DECISIONS MUST
ORDINARILY BE MADE BEFORE THE PROSECUTION TERMINATES, AND SEC. 1103(A)
PRESERVES THE LIMITATIONS OF SEC. 7237(D) ON DECISIONS MADE AT THAT
TIME. 

        II 

THE COURTS OF APPEALS THAT HAVE DEALT WITH THIS PROBLEM HAVE FAILED,
HOWEVER, TO CONSIDER FULLY THE SPECIAL PROBLEM OF THE PAROLE
ELIGIBILITY OF OFFENDERS CONVICTED BEFORE MAY 1, 1971.  THE SEVENTH AND
NINTH CIRCUITS HOLD THAT SUCH OFFENDERS ARE ELIGIBLE FOR PAROLE.  /5/
THE FIRST CIRCUIT IN THIS CASE STATED THAT PETITIONERS WERE "INELIGIBLE
FOR SUSPENDED SENTENCES, PAROLE, OR PROBATION."  455 F.2D, AT 1191. 

IN THE FEDERAL SYSTEM, OFFENDERS MAY BE MADE ELIGIBLE FOR PAROLE IN
TWO WAYS.  AND FEDERAL PRISONER "WHOSE RECORD SHOWS THAT HE HAS
OBSERVED THE RULES OF THE INSTITUTION IN WHICH HE IS CONFINED, MAY BE
RELEASED ON PAROLE AFTER SERVING ONE-THIRD OF" HIS SENTENCE.  18 U.S.C.
4202.  ALTERNATIVELY, THE DISTRICT JUDGE, "(UPON ENTERING A JUDGMENT OF
CONVICTION . . . MAY (1) DESIGNATE IN THE SENTENCE OF IMPRISONMENT
IMPOSED A MINIMUM TERM, AT THE EXPIRATION OF WHICH THE PRISONER SHALL
BECOME ELIGIBLE FOR PAROLE, WHICH TERM MAY BE LESS THAN, BUT SHALL NOT
BE MORE THAN ONE-THIRD OF THE MAXIMUM SENTENCE IMPOSED BY THE COURT, OF
(2) THE COURT MAY FIX THE MAXIMUM SENTENCE OF IMPRISONMENT TO BE
SERVED, IN WHICH EVENT THE COURT MAY SPECIFY THAT THE PRISONER MAY
BECOME ELIGIBLE FOR PAROLE AT SUCH TIME AS THE BOARD OF PAROLE MAY
DETERMINE."  18 U.S.C. 4208(A). 

PROVISION.  AS WE HAVE SAID, SENTENCING IS PART OF THE PROSECTUION. 
THEER MANDATORY MINIMUM SENTENCE OF FIVE YEARS MUST THEREFORE BE
IMPOSED ON OFFENDERS WHO VIOLATED THE LAW BEFORE MAY 1, 1971.  AND
CONGRESS SPECIFICALLY PROVIDED THAT SEC. 4208(A) DOES NOT APPLY TO ANY
OFFENSE "FOR WHICH THERE IS PROVIDED A MANDATORY PENALTY."  PUB. L. 85
752, SEC. 7, 72 STAT. 847.  IN ANY EVENT, THE DECISION TO MAKE EARLY
PAROLE AVAILABLE UNDER SEC. 4208(A) MUST BE MADE "(UPON ENTERING A
JUDGMENT OF CONVICTION," WHICH OCCURS BEFORE THE PROSECUTION HAS
ENDED.  SECTION 1103(A) THUS MEANS THAT THE DISTRICT JUDGE CANNOT
SPECIFY AT THE TIME OF SENTENCING THAT THE OFFENDER MAY BE ELIGIBLE FOR
EARLY PAROLE. 

THAT WAS THE ONLY QUESTION BEFORE THE COURT OF APPEALS, AND IT IS
THEREFORE THE ONLY QUESTION BEFORE US.  PETITIONERS' MOTION, ON WHICH
THE COURT OF APPEALS RULES, REQUESTED A REMAND SO THAT THE DISTRICT
JUDGE COULD CONSIDER THE SENTENCING ALTERNATIVES AVAILABLE TO HIM UNDER
THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970.  THAT
ACT, HOWEVER, DID NOT EXPAND THE CHOICES OPEN TO THE DISTRICT JUDGE IN
THIS CASE, AND THE COURT OF APPEALS CORRECTLY DENIED THE MOTION TO
REMAND.  THE AVAILABILITY OF PAROLE UNDER THE GENERAL PAROLE STATUTE,
18 U.S.C. 4202, IS A RATHER DIFFERENT MATTER, /6/  ON WHICH WE EXPRESS
NO OPINION. 

              AFFIRMED. 

/0/  BRIEFS OF AMICI CURIAE WERE FILED BY HARVEY A. SILVERGLATE FOR
RALPH DE SIMONE; BY IRWIN KLEIN FOR GERSON NAGELBERG ET AL.; AND BY
FRED M. VINSON, JR., AND ROBERT S. ERDAHL FOR SEVEN WOMEN PRISONERS. 

/1/  PETITIONERS BRADLEY, HELLIESON, AND ODELL WERE FOUND GUILTY
ALSO OF UNLAWFULLY CARRYING A FIREARM DURING THE COMMISSIONER OF A
FELONY, IN VIOLATION OF 18 U.S.C. 924(C)(2).  EACH WAS SENTENCED TO ONE
YEAR IN PRISON; THE SENTENCES WERE SUSPENDED, AND EACH WAS PLACED ON
PROBATION FOR THREE YEARS ON THESE COUNTS. 

/2/  SEE ALSO UNITED STATES V. MCGARR, 461 F.2D 1(CA7 1972); UNITED
STATES V. FIOTTO, 454 F.2D 252(CA2 1972). 

/3/  THESE CASES INVOLVE DETERMINING WHETHER A JUDGMENT IN A
CRIMINAL CASE IS FINAL FOR THE PURPOSE OF APPEAL AND DETERMINING
WHETHER THE FUNCTION OF THE TRIAL JUDGE HAS BEEN CONCLUDED SO THAT HE
MAY NOT ALTER THE SENTENCE PREVIOUSLY IMPOSED TO INCLUDE PROBATION. 
THE PRECISE ISSUES ARE, OF COURSE, DIFFERENT FROM THE ISSUE IN THIS
CASE.  BUT THESE CASES DO SHOW THE POINT AT WHICH A PROSECUTION
TERMINATES, AND THAT IS THE ISSUE HERE. 

/4/  PETITIONERS ALSO ARGUE THAT IMPOSITION OF SENTENCE PRECEDES THE
SUSPENSION OF SENTENCE AND THE GRANT OF PROBATION.  BUT THE ACTIONS OF
THE DISTRICT JUDGE IN IMPOSING SENTENCE AND THEN ORDERING THAT IT BE
SUSPENDED ARE USUALLY SO CLOSE IN TIME THAT IT WOULD BE UNREALISTIC TO
HOLD THAT CONGRESS INTENDED SO TO FRAGMENT WHAT IS ESSENTIALLY A SINGLE
PROCEEDING. 

/5/  SEE N. 2, SUPRA.  WE WERE INFORMED AT ORAL ARGUMENT THAT "THE
BOARD OF PAROLE IS NOW CONSIDERING AS ELIGIBLE FOR PAROLE ONLY
DEFENDANTS WHO HAVE BEEN SENTENCED IN THE SEVENTH AND NINTH CIRCUITS
FOR NARCOTICS OFFENSES."  TR. OF ORAL ARG. 23.  OUR DISPOSITION OF THIS
CASE HAS NO BEARING ON THE POWER OF THE BOARD OF PAROLE TO CONSIDER
PAROLE ELIGIBILITY FOR PETITIONERS UNDER 18 U.S.C. 4202.  SEE INFRA, AT
611. 

/6/  THE DECISION TO GRANT PAROLE UNDER SEC. 4202 LIES WITH THE
BOARD OF PAROLE, NOT WITH THE DISTRICT JUDGE, AND MUST BE MADE LONG
AFTER SENTENCE HAS BEEN ENTERED AND THE PROSECUTION TERMINATED. 
WHETHER SEC. 1103(A) OR THE GENERAL SAVING STATUTE, 1 U.S.C. 109,
LIMITS THAT DECISION IS A QUESTION WE CANNOT CONSIDER IN THIS CASE. 

MR. JUSTICE BRENNAN AND MR. JUSTICE WHITE JOIN PART I OF THE COURT'S
OPINION AND WOULD AFFIRM FOR THE REASONS THERE EXPRESSED.  THEY ARE
ALSO OF THE VIEW THAT SEC. 1103(A) FORECLOSES THE AVAILABILITY OF
PAROLE UNDER BOTH 18 U.S.C. 4202 AND 18 U.S.C. 4208(A), AND THAT EVEN
IF THIS WERE DEBATABLE AS TO SEC. 4202, THE GENERAL SAVING STATUTE, 1
U.S.C. 109, CLEARLY MANDATES THAT CONCLUSION AS TO THAT SECTION.  THEY
THEREFORE DO NOT JOIN PART II OF THE COURT'S OPINION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE CORRECT INTERPRETATION OF THE WORD "PROSECUTIONS" AS USED IN
SEC. 1103(A) OF THE 1970 ACT WAS, IN MY VIEW, THE ONE GIVEN BY THE
COURT OF APPEALS OF THE NINTH CIRCUIT IN UNITED STATES V. STEPHENS, 449
F.2D 103, 105: 

"PROSECUTION ENDS WITH JUDGMENT.  THE PURPOSE OF THE SECTION HAS
BEEN SERVED WHEN JUDGMENT UNDER THE OLD ACT HAS BEEN ENTERED AND
ABATEMENT OF PROCEEDINGS HAS BEEN AVOIDED.  AT THAT POINT LITIGATION
HAS ENDED AND APPEAL IS AVAILABLE.  KOREMATSU V. UNITED STATES, 319
U.S. 432, 63 S.CT. 1124, 87 L.ED. 1497(1943).  WHAT OCCURS THEREAFTER--
THE MANNER IN WHICH JUDGMENT IS CARRIED OUT, EXECUTED OR SATISFIED, AND
WHETHER OR NOT IT IS SUSPENDED-- IN NO WAY AFFECTS THE PROSECUTION OF
THE CASE." 

THE PROBLEM OF AMBIGUITIES IN STATUTORY LANGUAGE IS NOT PECULIAR TO
LEGISLATION DEALING WITH CRIMINAL MATTERS.  AND THE QUESTION AS TO HOW
THOSE AMBIGUITIES SHOULD BE RESOLVED IS NOT OFTEN RATIONALIZED.  THE
MOST DRAMATIC ILLUSTRATION, AT LEAST IN MODERN TIMES, IS ILLUSTRATED BY
ROSENBERG V. UNITED STATES, 346 U.S. 273, WHERE A DIVIDED COURT
RESOLVED AN AMBIGUITY IN A STATUTORY SCHEME AGAINST LIFE, NOT IN ITS
FAVOR.  THE INSTANT CASE IS NOT OF THAT PROPORTION BUT IT DOES ENTAIL
THE RESOLUTION OF UNSPOKEN ASSUMPTIONS-- THOSE FAVORING THE STATUS QUO
OF PRISON SYSTEMS AS OPPOSED TO THOSE WHO SEE REAL REHABILITATION AS
THE ONLY CURE OF THE PRESENT PRISON CRISES.  AS MR. JUSTICE HOLMES
SAID, "JUDGES DO AND MUST LEGISLATE, BUT THEY CAN DO SO ONLY
INTERSTITIALLY; THEY ARE CONFINED FROM MOLAR TO MOLECULAR MOTIONS." 
SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, 221 (DISSENTING
OPINION).  /1/     JUDGES DO NOT MAKE LEGISLATIVE POLICIES.  BUT IN
CONSTRUING AN AMBIGUOUS WORD IN A CRIMINAL CODE.  I WOULD TRY TO GIVE
IT A MEANING THAT WOULD HELP REVERSE THE LONG TREND IN THIS NATION NOT
TO CONSIDER A PRISONER A "PERSON" IN THE CONSTITUTIONAL SENSE.  FAY
STENDER, WRITING THE INTRODUCTION OF MAXIMUM SECURITY, P. X, HAS
DESCRIBED SOME OF THE "TREMENDOUSLY SOPHISTICATED DEFENSES AGAINST THE
LEAST INCREASE IN THE ENFORCEABLE HUMAN RIGHTS AVAILABLE TO THE
PRISONER."  (E. PELL ED., BANTAM BOOKS 1973). 

A LESS STRICT AND RIGID MEANING OF THE PRESENT ACT WOULD BE ONLY A
MINOR START IN THE OTHER DIRECTION.  BUT IT IS ONE I WOULD TAKE. 
/1/  MR. JUSTICE HOLMES ALSO SAID: 

"(IN SUBSTANCE THE GROWTH OF THE LAW IS LEGISLATIVE.  AND THIS IN A
DEEPER SENSE THAN THAT THAT WHICH THE COURTS DECLARE TO HAVE ALWAYS
BEEN THE LAW IS IN FACT NEW.  IT IS LEGISLATIVE IN ITS GROUNDS.  THE
VERY CONSIDERATIONS WHICH THE COURTS MOST RARELY MENTION, AND ALWAYS
WITH AN APOLOGY, ARE THE SECRET ROOT FROM WHICH THE LAW DRAWS ALL THE
JUICES OF LIFE.  WE MEAN, OF COURSE, CONSIDERATIONS OF WHAT IS
EXPEDIENT FOR THE COMMUNITY CONCERNED.  EVERY IMPORTANT PRINCIPLE WHICH
IS DEVELOPED BY LITIGATION IS IN FACT AND AT BOTTOM THE RESULT OF MORE
OR LESS DEFINITELY UNDERSTOOD VIEWS OF PUBLIC POLICY; MOST GENERALLY,
TO BE SURE, UNDER OUR PRACTICE AND TRADITIONS, THE UNCONSCIOUS RESULT
OF INSTINCTIVE PREFERENCES AND INARTICULATE CONVICTIONS, BUT NONE THE
LESS TRACEABLE TO PUBLIC POLICY IN THE LAST ANALYSIS.  AND AS THE LAW
IS ADMINISTERED BY ABLE AND EXPERIENCE MEN, WHO KNOW TOO MUCH TO
SACRIFICE GOOD SENSE TO A SYLLOGISM, IT WILL BE FOUND THAT WHEN ANCIENT
RULES MAINTAIN THEMSELVES IN THIS WAY, NEW REASONS MORE FITTED TO THE
TIME HAVE BEEN FOUND FOR THEM, AND THAT THEY GRADUALLY RECEIVE A NEW
CONTENT AND AT LAST A NEW FORM FROM THE GROUNDS TO WHICH THEY HAVE BEEN
TRANSPLANTED.  THE IMPORTANCE OF TRACING THE PROCESS LIES IN THE FACT
THAT IT IS UNCONSCIOUS, AND INVOLVES THE ATTEMPT TO FOLLOW PRECEDENTS,
AS WELL AS TO GIVE A GOOD REASON FOR THEM, AND THAT HENCE, IF IT CAN BE
SHOWN THAT ONE HALF OF THE EFFORT HAS FAILED, WE ARE AT LIBERTY TO
CONSIDER THE QUESTION OF POLICY WITH A FREEDOM THAT WAS NOT POSSIBLE
BEFORE.  COMMON CARRIERS AND THE COMMON LAW, 13 AM.L.REV.  609, 630
631(1879). 

WILLIAM P. HOMANS, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

DEPUTY SOLICITOR GENERAL LACOVARA ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL PETERSEN, HARRIET S. SHAPIRO, AND JEROME M.
FEIT.  /0/
..END :












LINDA R. S. V. RICHARD D., 410 U.S. 614 


       LINDA R. S. V. RICHARD D. ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS

        NO. 71-6078.  ARGUED DECEMBER 6, 1972-- DECIDED MARCH 5,

           1973 


APPELLANT, THE MOTHER OF AN ILLEGITIMATE CHILD, BROUGHT A CLASS
ACTION TO ENJOIN THE "DISCRIMINATORY APPLICATION" OF ART. 602 OF THE
TEXAS PENAL CODE PROVIDING THAT ANY "PARENT" WHO FAILS TO SUPPORT HIS
"CHILDREN" IS SUBJECT TO PROSECUTION, BUT WHICH BY STATE JUDICIAL
CONSTRUCTION APPLIES ONLY TO MARRIED PARENTS.  APPELLANT SOUGHT TO
ENJOIN THE LOCAL DISTRICT ATTORNEY FROM REFRAINING TO PROSECUTE THE
FATHER OF HER CHILD.  THE THREE-JUDGE DISTRICT COURT DISMISSED
APPELLANT'S ACTION FOR WANT OF STANDING:  HELD:  ALTHOUGH APPELLANT HAS
AN INTEREST IN HER CHILD'S SUPPORT, APPLICATION OF ART. 602 WOULD NOT
RESULT IN SUPPORT BUT ONLY IN THE FATHER'S INCARCERATION, AND A PRIVATE
CITIZEN LACKS A JUDICIALLY COGNIZABLE INTEREST IN THE PROSECTUION OR
NONPROSECUTION OF ANOTHER.  PP. 616-619. 

335 F.SUPP.  804, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, POWELL, AND REHNQUIST, JJ., JOINED.  WHITE, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P.
619.  BLACKMUN, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, J.,
JOINED, POST, P. 622. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

APPELLANT, THE MOTHER OF AN ILLEGITIMATE CHILD, BROUGHT THIS ACTION
IN UNITED STATES DISTRICT COURT ON BEHALF OF HERSELF, HER CHILD, AND
OTHERS SIMILARLY SITUATED TO ENJOIN THE "DISCRIMINATORY APPLICATION" OF
ART. 602 OF THE TEXAS PENAL CODE.  A THREE-JUDGE COURT WAS CONVENED
PURSUANT TO 28 U.S.C. 2281, BUT THAT COURT DISMISSED THE ACTION FOR
WANT OF STANDING.  /1/  335 F.SUPP.  804(ND TEX. 1971).  WE POSTPONED
CONSIDERATION OF JURISDICTION UNTIL ARGUMENT ON THE MERITS, 405 U.S.
1064, AND NOW AFFIRM THE JUDGMENT BELOW. 

ARTICLE 602, IN RELEVANT PART, PROVIDES:  "ANY PARENT WHO SHALL
WILFULLY DESERT, NEGLECT OR REFUSE TO PROVIDE FOR THE SUPPORT AND
MAINTENANCE OF HIS OR HER CHILD OR CHILDREN UNDER EIGHTEEN YEARS OF
AGE, SHALL BE GUILTY OF A MISDEMEANOR, AND UPON CONVICTION, SHALL BE
PUNISHED BY CONFINEMENT IN THE COUNTY JAIL FOR NOT MORE THAN TWO
YEARS."  THE TEXAS COURTS HAVE CONSISTENTLY CONSTRUED THIS STATUTE TO
APPLY SOLELY TO THE PARENTS OF LEGITIMATE CHILDREN AND TO IMPOSE NO
DUTY OF SUPPORT ON THE PARENTS OF ILLEGITIMATE CHILDREN.  SEE HOME OF
THE HOLY INFANCY V. KASKA, 397 S.W.2D 208, 210(TEX.  1966); BEAVER V.
STATE, 96 TEX.CR.R. 179, 256 S.W. 929(1923).  IN HER COMPLAINT,
APPELLANT ALLEGES THAT ONE RICHARD D. IS THE FATHER OF HER CHILD, THAT
RICHARD D. HAS REFUSED TO PROVIDE SUPPORT FOR THE CHILD, AND THAT
ALTHOUGH APPELLANT MADE APPLICATION TO THE LOCAL DISTRICT ATTORNEY FOR
ENFORCEMENT OF ART. 602 AGAINST RICHARD D., THE DISTRICT ATTORNEY
REFUSED TO TAKE ACTION FOR THE EXPRESS REASON THAT, IN HIS VIEW, THE
FATHERS OF ILLEGITIMATE CHILDREN WERE NOT WITHIN THE SCOPE OF ART.
602.  /2/ 

APPELLANT ARGUES THAT THIS INTERPRETATION OF ART. 602 DISCRIMINATES
BETWEEN LEGITIMATE AND ILLEGITIMATE CHILDREN WITHOUT RATIONAL
FOUNDATION AND THEREFORE VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  CF. GOMEZ V. PEREZ, 409 U.S. 535(1973); WEBER V.
AETNA CASUALTY & SURETY CO., 406 U.S. 164(1972); GLONA V. AMERICAN
GUARANTEE & LIABILITY INS. CO., 391 U.S. 73(1968); LEVY V. LOUISIANA,
391 U.S. 68(1968).  BUT CF. LABINE V. VINCENT, 401 U.S. 532(1971). 
ALTHOUGH HER COMPLAINT IS NOT ENTIRELY CLEAR ON THIS POINT, SHE
APPARENTLY SEEKS AN INJUNCTION RUNNING AGAINST THE DISTRICT ATTORNEY
FORBIDDING HIM FROM DECLINING PROSECUTION ON THE GROUND THAT THE
UNSUPPORTED CHILD IS ILLEGITIMATE. 

BEFORE WE CAN CONSIDER THE MERITS OF APPELLANT'S CLAIM OR THE
PROPRIETY OF THE RELIEF REQUESTED, HOWEVER, APPELLANT MUST FIRST
DEMONSTRATE THAT SHE IS ENTITLED TO INVOKE THE JUDICIAL PROCESS.  SHE
MUST, IN OTHER WORDS, SHOW THAT THE FACTS ALLEGED PRESENT THE COURT
WITH A "CASE OR CONTROVERSY" IN THE CONSTITUTIONAL SENSE AND THAT SHE
IS A PROPER PLAINTIFF TO RAISE THE ISSUES SOUGHT TO BE LITIGATED.  THE
THRESHOLD QUESTION WHICH MUST BE ANSWERED IS WHETHER THE APPELLANT HAS
"ALLEGED SUCH A PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY AS TO
ASSURE THAT CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF
ISSUES UPON WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF
DIFFICULT CONSTITUTIONAL QUESTIONS."  BAKER V. CARR, 369 U.S. 186,
204(1962). 

RECENT DECISIONS BY THIS COURT HAVE GREATLY EXPANDED THE TYPES OF
"PERSONAL STAKES)" WHICH ARE CAPABLE OF CONFERRING STANDING ON A
POTENTIAL PLAINTIFF.  COMPARE TENNESSEE ELECTRIC POWER VO. V. TVA, 306
U.S. 118(1939), AND ALABAMA POWER CO. V. ICKES, 302 U.S. 464(1938),
WITH BARLOW V. COLLINS, 397 U.S. 159(1970), AND ASSOCIATION OF DATE
PROCESSING SERVICE ORGANIZATIONS V. CAMP, 397 U.S. 150(1970).  BUT AS
WE POINTED OUT ONLY LAST TERM, "BROADENING THE CATEGORIES OF INJURY
THAT MAY BE ALLEGED IN SUPPORT OF STANDING IS A DIFFERENT MATTER FROM
ABANDONING THE REQUIREMENT THAT THE PARTY SEEKING REVIEW MUST HIMSELF
HAVE SUFFERED AN INJURY."  SIERRA CLUB V. MORTON, 405 U.S. 727,
738(1972).  ALTHOUGH THE LAW OF STANDING HAS BEEN GREATLY CHANGED IN
THE LAST 10 YEARS, WE HAVE STEADFASTLY ADHERED TO THE REQUIREMENT THAT,
AT LEAST IN THE ABSENCE OF A STATUTE EXPRESSLY CONFERRING STANDING, /3/
FEDERAL PLAINTIFFS MUST ALLEGE SOME THREATENED OR ACTUAL INJURY
RESULTING FROM THE PUTATIVELY ILLEGAL ACTION BEFORE A FEDERAL COURT MAY
ASSUME JURISDICTION.  /4/  SEE, E.G., MOOSE LODGE NO. 107 V. IRVIS, 407
U.S. 163, 166-167(1972); FLAST V. COHEN, 392 U.S. 83, 101(1968); BAKER
V. CARR, 369 U.S. 186, 204(1962).  CF. LAIRD V. TATUM, 408 U.S. 1,
13(1972). 

APPLYING THIS TEST TO THE FACTS OF THIS CASE, WE HOLD THAT, IN THE
UNIQUE CONTEXT OF A CHALLENGE TO A CRIMINAL STATUTE, APPELLANT HAS
FAILED TO ALLEGE A SUFFICIENT NEXUS BETWEEN HER INJURY AND THE
GOVERNMENT ACTION WHICH SHE ATTACKS TO JUSTIFY JUDICIAL INTERVENTION. 
TO BE SURE, APPELLANT NO DOUBT SUFFERED AN INJURY STEMMING FROM THE
FAILURE OF HER CHILD'S FATHER TO CONTRIBUTE SUPPORT PAYMENTS.  BUT THE
BARE EXISTENCE OF AN ABSTRACT INJURY MEETS ONLY THE FIRST HALF OF THE
STANDING REQUIREMENT.  "THE PARTY WHO INVOKES (JUDICIAL) POWER MUST BE
ABLE TO SHOW . . . THAT HE HAS SUSTAINED OR IS IMMEDIATELY IN DANGER OF
SUSTAINING SOME DIRECT INJURY AS THE RESULT OF (A STATUTE'S)
ENFORCEMENT."  MASSACHUSETTS V. MELLON, 262 U.S. 447, 488(1923).  SEE
ALSO EX PARTE LEVITT, 302 U.S. 633, 634(1937).  AS THIS COURT MADE
PLAIN IN FLAST V. COHEN SUPRA, A PLAINTIFF MUST SHOW "A LOGICAL NEXUS
BETWEEN THE STATUS ASSERTED AND THE CLAIM SOUGHT TO BE ADJUDICATED.  .
. . SUCH INQUIRIES INTO THE NEXUS BETWEEN THE STATUS ASSERTED BY THE
LITIGANT AND THE CLAIM HE PRESENTS ARE ESSENTIAL TO ASSURE THAT HE IS A
PROPER AND APPROPRIATE PARTY TO INVOKE FEDERAL JUDICIAL POWER."  ID.,
AT 102. 

HERE, APPELLANT HAS MADE NO SHOWING THAT HER FAILURE TO SECURE
SUPPORT PAYMENTS RESULTS FROM THE NONENFORCEMENT, AS TO HER CHILD'S
FATHER, OF ART. 602.  ALTHOUGH THE TEXAS STATUTE APPEARS TO CREATE A
CONTINUING DUTY, IT DOES NOT FOLLOW THE CIVIL CONTEMPT MODEL WHEREBY
THE DEFENDANT "KEEPS THE KEYS TO THE JAIL IN HIS OWN POCKET" AND MAY BE
RELEASED WHENEVER HE COMPLIES WITH HIS LEGAL OBLIGATIONS.  ON THE
CONTRARY, THE STATUTE CREATES A COMPLETED OFFENSE WITH A FIXED PENALTY
AS SOON AS A PARENT FAILS TO SUPPORT HIS CHILD.  THUS, IF APPELLANT
WERE GRANTED TO REQUESTED RELIEF, IT WOULD RESULT ONLY IN THE JAILING
OF THE CHILD'S FATHER.  THE PROSPECT THAT PROSECTUION WILL, AT LEAST IN
THE FUTURE, RESULT IN PAYMENT OF SUPPORT CAN, AT BEST, BE TERMED ONLY
SPECULATIVE.  CERTAINLY THE "DIRECT RELATIONSHIP BETWEEN THE ALLEGED
INJURY AND THE CLAIM SOUGHT TO BE ADJUDICATED, WHICH PREVIOUS DECISIONS
OF THIS COURT SUGGEST IS A PREREQUISITE OF STANDING, IS ABSENT IN THIS
CASE. 

THE COURT'S PRIOR DECISIONS CONSISTENTLY HOLD THAT A CITIZEN LACKS
STANDING TO CONTEST THE POLICIES OF THE PROSECUTING AUTHORITY WHEN HE
HIMSELF IS NEITHER PROSECUTED NOR THREATENED WITH PROSECUTION.  SEE
YOUNGER V. HARRIS, 401 U.S. 37, 42(1971); BAILEY V. PATTERSON, 369 U.S.
31, 33(1962); POE V. ULLMAN, 367 U.S. 497, 501(1961).  ALTHOUGH THESE
CASES AROSE IN A SOMEWHAT DIFFERENT CONTEXT, THEY DEMONSTRATE THAT, IN
AMERICAN JURISPRUDENCE AT LEAST, A PRIVATE CITIZEN LACKS A JUDICIALLY
COGNIZABLE INTEREST IN THE PROSECUTION OR NONPROSECUTION OF ANOTHER. 
APPELLANT DOES HAVE AN INTEREST IN THE SUPPORT OF HER CHILD.  BUT GIVEN
THE SPECIAL STATUS OF CRIMINAL PROSECUTIONS ON OUR SYSTEM, WE HOLD THAT
APPELLANT HAS MADE AN INSUFFICIENT SHOWING OF A DIRECT NEXUS BETWEEN
THE VINDICATION OF HER INTEREST AND THE ENFORCEMENT OF THE STATE'S
CRIMINAL LAWS.  THE DISTRICT COURT WAS THEREFORE CORRECT IN DISMISSING
THE ACTION FOR WANT OF STANDING, AND ITS JUDGMENT MUST BE AFFIRMED. 
/6/

              SO ORDERED. 

/1/  THE DISTRICT COURT ALSO CONSIDERED AN ATTACK ON ART. 4.02 OF
THE TEXAS FAMILY CODE, WHICH IMPOSES CIVIL LIABILITY UPON "SPOUSES" FOR
THE SUPPORT OF THEIR MINOR CHILDREN.  PETITIONER ARGUED THAT THE
STATUTE VIOLATED EQUAL PROTECTION BECAUSE IT IMPOSED NO CIVIL LIABILITY
ON THE PARENTS OF ILLEGITIMATE CHILDREN.  HOWEVER, THE THREE-JUDGE
COURT HELD THAT THE CHALLENGE TO THIS STATUTE WAS NOT PROPERLY BEFORE
IT SINCE APPELLANT DID NOT SEEK AN INJUNCTION RUNNING AGAINST ANY STATE
OFFICIAL AS TO IT.  SEE 28 U.S.C. 2281.  THE COURT, THEREFORE, REMANDED
THIS PORTION OF THE CASE TO A SINGLE DISTRICT JUDGE.  335 F.SUPP.  804,
807.  THE DISTRICT COURT'S DISPOSITION OF PETITIONER'S ART. 4.02 CLAIM
IS NOT PRESENTLY BEFORE US.  BUT SEE GOMEZ V. PEREZ, 409 U.S.
535(1973). 

/2/  APPELLANT ATTACHED TO HER COMPLAINT AN AFFIDAVIT, SIGNED BY AN
ASSISTANT DISTRICT ATTORNEY, STATING THAT THE STATE WAS UNABLE TO
INSTITUTE PROSECUTION "DUE TO CASELAW CONSTRUING ART. 602 OF THE PENAL
CODE TO BE INAPPLICABLE TO FATHERS OF ILLEGITIMATE CHILDREN." 

/3/  IT IS, OR COURSE, TRUE THAT "CONGRESS MAY NOT CONFER
JURISDICTION ON ART. III FEDERAL COURTS TO RENDER ADVISORY OPINIONS,"
SIERRA CLUB V. MORTON, 405 U.S. 727, 732N.  3(1972).  BUT CONGRESS MAY
ENACT STATUTES CREATING LEGAL RIGHTS, THE INVASION OF WHICH CREATES
STANDING, EVEN THOUGH NO INJURY WOULD EXIST WITHOUT THE STATUTE.  SEE,
E.G., TRAFFICANTE V. METROPOLITAN LIFE INS. CO., 409 U.S. 205,
212(1972) (WHITE, J., CONCURRING); HARDIN V. KENTUCKY UTILITIES CO.,
390 U.S. 1, 6(1968). 

/4/  ONE OF THE LEADING COMMENTATORS ON STANDING HAS WRITTEN, "EVEN
THOUGH THE PAST LAW OF STANDING IS SO CLUTTERED AND CONFUSED THAT
ALMOST EVERY PROPOSITION HAS SOME EXCEPTION, THE FEDERAL COURTS HAVE
CONSISTENTLY ADHERED TO ONE MAJOR PROPOSITION WITHOUT EXCEPTION:  ONE
WHO HAS NO INTEREST OF HIS OWN AT STAKE ALWAYS LACKS STANDING."  K.
DAVIS, ADMINISTRATIVE LAW TEXT 428-429 (3D ED. 1972). 

/5/  WE NOTED LAST TERM THAT "(THE REQUIREMENT THAT A PARTY SEEKING
REVIEW MUST ALLEGE FACTS SHOWING THAT HE IS HIMSELF ADVERSELY AFFECTED
DOES NOT INSULATE EXECUTIVE ACTION FROM JUDICIAL REVIEW, NOR DOES IT
PREVENT ANY PUBLIC INTERESTS FROM BEING PROTECTED THROUGH THE JUDICIAL
PROCESS."  SIERRA CLUB V. MORTON, 405 U.S.,AT 740.  THAT OBSERVATION IS
FULLY APPLICABLE HERE.  AS THE DISTRICT COURT STATED, "THE PROPER PARTY
TO CHALLENGE THE CONSTITUTIONALITY OF ARTICLE 602 WOULD BE A PARENT OF
A LEGITIMATE CHILD WHO HAS BEEN PROSECUTED UNDER THE STATUTE.  SUCH A
CHALLENGE WOULD ALLEGE THAT BECAUSE THE PARENTS OF ILLEGITIMATE
CHILDREN MAY NOT BE PROSECUTED, THE STATUTE UNFAIRLY DISCRIMINATES
AGAINST THE PARENTS OF LEGITIMATE CHILDREN."  335 F.SUPP.,AT 806. 

/6/  SINCE WE DISPOSE OF THIS CASE ON THE BASIS OF LACK OF STANDING,
WE INTIMATE NO VIEW AS TO THE MERITS OF APPELLANT'S CLAIM.  BUT CF.
GOMEZ V. PEREZ, 409 U.S. 535(1973). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

APPELLANT LINDA R. S. ALLEGED THAT SHE IS THE MOTHER OF AN
ILLEGITIMATE CHILD AND THAT SHE IS SUING "ON BEHALF OF HERSELF, HER
MINOR DAUGHTER, AND ON BEHALF OF ALL OTHER WOMEN AND MINOR CHILDREN WHO
HAVE SOUGHT, ARE SEEKING, OR IN THE FUTURE WILL SEEK TO OBTAIN SUPPORT
FOR SO-CALLED ILLEGITIMATE CHILDREN FROM SAID CHILD'S FATHER." 
APPELLANT SOUGHT A DECLARATORY JUDGMENT THAT ART. 602 IS
UNCONSTITUTIONAL AND AN INJUNCTION AGAINST ITS CONTINUED ENFORCEMENT
AGAINST FATHERS OF LEGITIMATE CHILDREN ONLY.  APPELLANT FURTHER SOUGHT
AN ORDER REQUIRING RICHARD D., THE PUTATIVE FATHER, "TO PAY A
REASONABLE AMOUNT OF MONEY FOR THE SUPPORT OF HIS CHILD." 

OBVIOUSLY, THERE ARE SERIOUS DIFFICULTIES WITH APPELLANT'S COMPLAINT
INSOFAR AS IT MAY BE CONSTRUED AS SEEKING TO REQUIRE THE OFFICIAL
APPELLEES TO PROSECUTE RICHARD D. OR OTHERS, OR TO OBTAIN WHAT AMOUNTS
TO A FEDERAL CHILD-SUPPORT ORDER.  BUT THOSE DIFFICULTIES GO TO THE
QUESTION OF WHAT RELIEF THE COURT MAY ULTIMATELY GRANT APPELLANT.  THEY
DO NOT AFFECT HER RIGHT TO BRING THIS CLASS ACTION.  THE COURT NOTES,
AS IT MUST, THAT THE FATHER OF A LEGITIMATE CHILD, IF PROSECUTED UNDER
ART. 602, COULD PROPERLY RAISE THE STATUTE'S UNDER INCLUSIVENESS AS AN
AFFIRMATIVE DEFENSE.  SEE MCLAUGHLIN V. FLORIDA, 379 U.S. 184(1964);
RAILWAY EXPRESS AGENCY V. NEW YORK, 336 U.S. 106(1949).  PRESUMABLY,
THAT SAME FATHER WOULD HAVE STANDING TO AFFIRMATIVELY SEEK TO ENJOIN
ENFORCEMENT OF THE STATUTE AGAINST HIM.  CF. RINALDI V. YEAGER, 384
U.S. 305(1966); SEE ALSO EPPERSON V. ARKANSAS, 393 U.S. 97(1968).  THE
QUESTION THEN BECOMES SIMPLY:  WHY SHOULD ONLY AN ACTUAL OR POTENTIAL
CRIMINAL DEFENDANT HAVE A RECOGNIZABLE INTEREST IN ATTACKING THIS
ALLEGEDLY DISCRIMINATORY STATUTE AND NOT APPELLANT AND HER CLASS?  THEY
ARE NOT, AFTER ALL, IN THE POSITION OF MEMBERS OF THE PUBLIC AT LARGE
WHO WISH MERELY TO FORCE AN ENLARGEMENT OF STATE CRIMINAL LAWS.  CF.
SIERRA CLUB V. MORTON, 405 U.S. 727(1972).  APPELLANT, HER DAUGHTER,
AND THE CHILDREN BORN OUT OF WEDLOCK WHOM SHE IS ATTEMPTING TO
REPRESENT HAVE ALL ALLEGEDLY BEEN EXCLUDED INTENTIONALLY FROM THE CLASS
OF PERSONS PROTECTED BY A PARTICULAR CRIMINAL LAW.  THEY DO NOT GET THE
PROTECTION OF THE LAWS THAT OTHER WOMEN AND CHILDREN GET.  UNDER ART.
602, THEY ARE RENDERED NONPERSONS; A FATHER MAY IGNORE THEM WITH FULL
KNOWLEDGE THAT HE WILL BE SUBJECTED TO NO PENAL SANCTIONS.  THE COURT
STATES THAT THE ACTUAL COERCIVE EFFECT OF THOSE SANCTIONS ON RICHARD D.
OR OTHERS "CAN, AT BEST, BE TERMED ONLY SPECULATIVE."  THIS IS A VERY
ODD STATEMENT.  I HAD ALWAYS THOUGHT OUR CIVILIZATION HAS ASSUMED THAT
THE THREAT OF PENAL SANCTIONS HAD SOMETHING MORE THAN A "SPECULATIVE"
EFFECT ON A PERSON'S CONDUCT.  THIS COURT HAS LONG ACTED ON THAT
ASSUMPTION IN DEMANDING THAT CRIMINAL LAWS BE PLAINLY AND EXPLICITLY
WORDED SO THAT PEOPLE WILL KNOW WHAT THEY MEAN AND BE IN A POSITION TO
CONFORM THEIR CONDUCT TO THE MANDATES OF LAW.  CERTAINLY TEXAS DOES NOT
SHARE THE COURT'S SURPRISINGLY NOVEL VIEW.  IT ASSUMES THAT CRIMINAL
SANCTIONS ARE USEFUL IN COERCING FATHERS TO FULFILL THEIR SUPPORT
OBLIGATIONS TO THEIR LEGITIMATE CHILDREN.     UNQUESTIONABLY, TEXAS
PROSECUTES FATHERS OF LEGITIMATE CHILDREN ON THE COMPLAINT OF THE
MOTHER ASSERTING NON-SUPPORT AND REFUSES TO ENTERTAIN LIKE COMPLAINTS
FROM A MOTHER OF AN ILLEGITIMATE CHILD.  I SEE NO BASIS FOR SAYING THAT
THE LATTER MOTHER HAS NO STANDING TO DEMAND THAT THE DISCRIMINATION BE
ENDED, ONE WAY OR THE OTHER. 

IF A STATE WERE TO PASS A LAW THAT MADE ONLY THE MURDER OF A WHITE
PERSON A CRIME, I WOULD THINK THAT NEGROES AS A CLASS WOULD HAVE
SUFFICIENT INTEREST TO TO SEEK A DECLARATION THAT THAT LAW INVIDIOUSLY
DISCRIMINATED AGAINST THEM.  APPELLANT AND HER CLASS HAVE NO LESS
INTEREST IN CHALLENGING THEIR EXCLUSION FROM WHAT THEIR OWN STATE
PERCEIVES AS BEING THE BENEFICIAL PROTECTIONS THAT FLOW FROM THE
EXISTENCE AND ENFORCEMENT OF A CRIMINAL CHILD-SUPPORT LAW. 

I WOULD HOLD THAT APPELLANT HAS STANDING TO MAINTAIN THIS SUIT AND
WOULD, ACCORDINGLY, REVERSE THE JUDGMENT AND REMAND THE CASE FOR
FURTHER PROCEEDINGS. 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

BY HER COMPLAINT, APPELLANT CHALLENGED TEXAS' EXEMPTION OF FATHERS
OF ILLEGITIMATE CHILDREN FROM BOTH CIVIL AND CRIMINAL LIABILITY.  OUR
DECISION IN GOMEZ V. PEREZ, 409 U.S. 535(1973), ANNOUNCED AFTER ORAL
ARGUMENT IN THIS CASE, HAS IMPORTANT IMPLICATIONS FOR THE TEXAS LAW
GOVERNING A MAN'S CIVIL LIABILITY FOR THE SUPPORT OF CHILDREN HE HAS
FATHERED ILLEGITIMATELY.  ALTHOUGH APPELLANT'S CHALLENGE TO THE CIVIL
STATUTE, AS THE COURT POINT OUT, IS NOT PROCEDURALLY BEFORE US, ANTE,
AT 615 N. 1, HER BRIEF MAKES IT CLEAR THAT HER BASIC OBJECTION TO THE
TEXAS SYSTEM CONCERNS THE ABSENCE OF A DUTY OF PATERNAL SUPPORT FOR
ILLEGITIMATE CHILDREN.  THE HISTORY OF THE CASE SUGGESTS THAT APPELLANT
SOUGHT TO UTILIZE THE CRIMINAL STATUTE AS A TOOL TO COMPEL SUPPORT
PAYMENTS FOR HER CHILD.  THE DECISION IN GOMEZ MAY REMOVE THE NEED FOR
APPELLANT TO RELY ON THE CRIMINAL LAW IF SHE CONTINUES HER QUEST FOR
PATERNAL CONTRIBUTION. 

THE STANDING ISSUE NOW DECIDED BY THE COURT IS, IN MY OPINION, A
DIFFICULT ONE WITH CONSTITUTIONAL OVERTONES.  I SEE NO REASON TO DECIDE
THAT QUESTION IN THE ABSENCE OF A LIVE, ONGOING CONTROVERSY.  SEE RICE
V. SIOUX CITY MEMORIAL PARK CEMETERY, 349 U.S. 70(1955).  GOMEZ NOW HAS
BECLOUDED THE STATE PRECEDENTS RELIED UPON BY BOTH PARTIES IN THE
DISTRICT COURT.  THUS "INTERVENING CIRCUMSTANCES MAY WELL HAVE ALTERED
THE VIEWS OF THE PARTICIPANTS," AND THE NECESSITY FOR RESOLVING THE
PARTICULAR DISPUTE MAY NO LONGER BE PRESENT.  PROTECTIVE COMMITTEE V.
ANDERSON, 390 U.S. 414, 453-454(1968).  UNDER THESE CIRCUMSTANCES, I
WOULD REMAND THE CASE TO THE DISTRICT COURT FOR CLARIFICATION OF THE
STATUS OF THE LITIGATION. 

WINDLE TURLEY ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

ROBERT W. GAUSS, ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED THE
CAUSE FOR APPELLEES.  ON THE BRIEF WERE CRAWFORD C. MARTIN, ATTORNEY
GENERAL, NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL, ALFRED WALKER,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, J. C. DAVIS AND PAT BAILEY,
ASSISTANT ATTORNEYS GENERAL, AND SAMUEL D. MCDANIEL. 
..END :























UNITED AIR LINES V. MAHIN, 410 U.S. 623 


       UNITED AIR LINES, INC. V. MAHIN, DIRECTOR OF DEPARTMENT OF

           REVENUE, ET AL.

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 71-862.  ARGUED NOVEMBER 8, 1972-- DECIDED MARCH 5,

           1973 


THE ILLINOIS USE TAX WAS APPLIED TO APPELLANT'S AVIATION FUEL STORED
IN THE STATE AND LOADED ABOARD ITS AIRCRAFT THERE AND CONSUMED IN
INTERSTATE FLIGHTS, THE TAX AUTHORITIES HAVING REVISED THEIR PREVIOUS
"BURN OFF" INTERPRETATION OF A STATUTORY EXEMPTION FOR TEMPORARY
STORAGE.  UNDER THE "BURN OFF" INTERPRETATION ONLY FUEL CONSUMED IN
FLIGHT OVER ILLINOIS WAS USED TO MEASURE THE TAX IMPOSED FOR STORAGE
BEFORE LOADING, BUT UNDER THE REINTERPRETATION ALL FUEL LOADED WAS
DEEMED TO MEASURE THE TAX ON THE "USE" OF STORAGE OR WITHDRAWAL FROM
STORAGE.  THE ILLINOIS SUPREME COURT UPHELD THE STATUTE AGAINST
APPELLANT'S CONTENTION THAT THE TAX AS REINTERPRETED IMPERMISSIBLY
BURDENED INTERSTATE COMMERCE.  HELD: 

1.  THE STATUTE AS AUTHORITATIVELY CONSTRUED BY THE STATE'S HIGHEST
COURT TO TAX STORAGE AND NOT CONSUMPTION DOES NOT PLACE AN
UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE.  EDELMAN V. BOEING AIR
TRANSPORT, INC., 289 U.S. 249; NASHVILLE, CHATTANOOGA & ST. LOUIS R.
CO. V. WALLACE, 288 U.S. 249.  CASES ALLOWING THE TAXATION OF STORAGE
OF FUEL BEFORE LOADING HAVE NOT OUTLIVED THEIR USEFULNESS.  PP. 626
630. 

2.  THE "BURN OFF" RULE IS NOT UNCONSTITUTIONAL, BEING DISTINGUISHABLE
FROM A TAX IMPOSED ON CONSUMPTION SUCH AS WAS INVALIDATED IN HELSON V.
KENTUCKY, 279 U.S. 245.  SINCE SOME OF THE ILLINOIS SUPREME COURT
MAJORITY WERE UNDER THE MISTAKEN IMPRESSION THAT HELSON PRECLUDED USE
OF THE "BURN OFF" INTERPRETATION, THE CASE IS REMANDED TO ENABLE THAT
COURT TO CONSTRUE THE TEMPORARY-STORAGE PROVISION UNDER STATE LAW FREE
FROM ANY CONSTRAINT THAT SUCH INTERPRETATION WOULD NOT BE
CONSTITUTIONALLY PERMISSIBLE.  PP. 630-632. 

49 ILL.2D 45, 273 N.E.2D 585, VACATED AND REMANDED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, MARSHALL, POWELL, AND REHNQUIST, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH STEWART AND WHITE,
JJ., JOINED, POST, P. 632.  WHITE, J., FILED A DISSENTING OPINION,
POST, P. 639. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

UNITED AIR LINES, INC., CHALLENGED THE CONSTITUTIONALITY OF THE
ILLINOIS GENERAL REVENUE USE TAX AS APPLIED TO AVIATION FUEL STORED IN
ILLINOIS AND THEN LOADED ABOARD AIRCRAFT THERE AND CONSUMED IN
INTERSTATE FLIGHTS.  THE SUPREME COURT OF ILLINOIS UPHELD THE STATE TAX
AS CURRENTLY APPLIED, CONCLUDING THAT IT DID NOT IMPOSE AN
UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE.  49 ILL.2D 45, 273
N.E.2D 585(1971).  WE NOTED PROBABLE JURISDICTION.  405 U.S.
986(1972).  WE NOW AFFIRM THAT HOLDING, BUT WE VACATE THE JUDGMENT AND
REMAND THE CASE FOR CONSIDERATION OF AN ISSUE UNDER STATE LAW. 

SINCE 1953, UNITED HAS PURCHASED AVIATION FUEL FROM A SUPPLIER FOR
DELIVERY FROM THE SUPPLIER'S INDIANA FACILITIES.  THIS FUEL IS UTILIZED
BY UNITED IN ITS EXTENSIVE OPERATIONS OUT OF O'HARE AND MIDWAY AIRPORTS
IN THE CHICAGO AREA OF ILLINOIS.  ALTHOUGH THE METHOD OF DELIVERY
VARIES FOR DIFFERENT TYPES OF FUEL AND FOR THE TWO AIRPORTS, /1/  ALL
FUEL IS DELIVERED BY COMMON CARRIER AND IS HELD FOR PERIODS RANGING
FROM TWO TO 12 DAYS IN GROUND STORAGE FACILITIES MAINTAINED IN ILLINOIS
BY UNITED.  /2/  FUEL FOR BOTH INTERSTATE AND INTRASTATE OPERATIONS IS
DELIVERED IN THE SAME MANNER.  /3/  UNITED VOLUNTARILY HAS PAID THE TAX
ON FUEL CONSUMED IN PURELY INTRASTATE OPERATIONS.  ONLY THE TAX AS
APPLIED TO FUEL USED IN INTERSTATE FLIGHTS IS IN ISSUE. 

IN 1955, ILLINOIS ENACTED A GENERAL TAX ON THE "PRIVILEGE OF USING"
TANGIBLE PERSONAL PROPERTY IN THE STATE.  ILL. REV. STAT., C. 120, SEC.
439.3(1971).  "USE" WAS DEFINED TO INCLUDE THE "EXERCISE . . . OF ANY
RIGHT OR POWER OVER TANGIBLE PERSONAL PROPERTY INCIDENT TO THE
OWNERSHIP OF THAT PROPERTY."  SEC. 439.2.  SOME EXCEPTIONS FROM THIS
INCLUSIVE DEFINITION WERE MADE.  ONE OF THESE EXCEPTIONS, WHICH THE
STATUTE RECITES, SEC. 439.3, IS "(TO PREVENT ACTUAL OR LIKELY
MULTISTATE TAXATION," IS THE TEMPORARY-STORAGE PROVISION.  THIS DENIES
APPLICATION OF THE TAX TO PROPERTY BROUGHT FROM ANOTHER STATE AND
STORED TEMPORARILY IN ILLINOIS BEFORE USE SOLELY OUTSIDE THE STATE. 
/4/ 

SINCE THIS GENERAL USE TAX, APART FROM ITS EXCEPTIONS, REACHED ALL
TANGIBLE PERSONAL PROPERTY, IT APPLIED BY ITS TERMS TO FUEL STORED FOR
USE IN VEHICLES.  FROM 1955 TO 1963, THE ILLINOIS DEPARTMENT OF REVENUE
ALLOWED INTERSTATE COMMON CARRIERS TO BENEFIT FROM THE TEMPORARY
STORAGE PROVISION TO THE EXTENT THAT FUEL, ALTHOUGH LOADED ABOARD IN
ILLINOIS, WAS NOT CONSUMED BY THE VEHICLE IN THAT STATE.  THE AMOUNT OF
AVIATION FUEL USED OVER ILLINOIS COULD BE CALCULATED BECAUSE SCHEDULED
AIRLINE ROUTES ARE PRECISE AND THE RATE OF CONSUMPTION BY EACH TYPE OF
AIRCRAFT IS KNOWN.  THIS "BURN OFF" INTERPRETATION WAS CHANGED IN 1963,
HOWEVER, WHEN THE DEPARTMENT ANNOUNCED BY BULLETIN THAT IT WAS
REINTERPRETING THE TEMPORARY-STORAGE PROVISION TO MEAN THAT "TEMPORARY
STORAGE ENDS AND A TAXABLE USE OCCURS WHEN THE FUEL IS TAKEN OUT OF
STORAGE FACILITIES AND IS PLACED INTO THE TANK OF THE AIRPLANE,
RAILROAD ENGINE OR TRUCK."  THUS, AS THE ILLINOIS COURT DESCRIBED IT,
"ALL FUEL LOADED ON UNITED'S PLANES AT THE TWO AIRPORTS WAS DEEMED TO
MEASURE THE TAX."  49 ILL.2D, AT 49, 273 N.E.2D, AT 587. 

UNITED'S SUIT ATTACKED THE NEW INTERPRETATION ON BOTH STATE AND
FEDERAL GROUNDS.  ALL JUSTICES OF THE SUPREME COURT OF ILLINOIS AGREED
THAT THE NEW INTERPRETATION DID NOT RUN AFOUL OF THE FEDERAL
CONSTITUTION, BUT THE JUSTICES DISAGREED OVER THE APPLICABILITY AND
VALIDITY OF THE "BURN OFF" ALTERNATIVE DISCUSSED IN THE SEVERAL
OPINIONS.  49 ILL.2D, AT 50-53, 56, 57-59, 273 N.E.2D, AT 587-589, 591
592. 

        I 

TWO DECISIONS OF THIS COURT WERE RELIED UPON BY THE ILLINOIS COURT
IN REACHING ITS CONCLUSION THAT THE PRESENT APPLICATION OF THE STATE
TAX WAS NOT OFFENSIVE TO THE FEDERAL CONSTITUTION.  THE CASES ARE
EDELMAN V. BOEING AIR TRANSPORT, 289 U.S. 249(1933), AND NASHVILLE,
CHATTANOOGA & ST. LOUIS R. CO. V. WALLACE, 288 U.S. 249(1933).  WE
AGREE THAT THESE CASES SUPPORT THE APPLICATION OF THE ILLINOIS TAX TO
ALL FUEL STORED IN ILLINOIS AND LOADED ABOARD UNITED'S AIRCRAFT FOR IN
FLIGHT CONSUMPTION. 

IN EDELMAN, THIS COURT UPHELD A STATE GASOLINE USE TAX, EVEN WHEN
IMPOSED ON GASOLINE IMPORTED FROM OUTSIDE THE STATE, STORED IN TANKS AT
AN AIRPORT, AND LOADED ABOARD PLANES DEPARTING ON INTERSTATE FLIGHTS. 
THE DECISION IN EDELMAN FOLLOWED THE HOLDING IN NASHVILLE THAT OIL
PURCHASED BY A RAILROAD OUTSIDE TENNESSEE BUT STORED IN TENNESSEE
SOLELY FOR THE PURPOSE OF PROVIDING MOTIVE POWER FOR THE RAILROAD'S
INTERSTATE AND INTRASTATE OPERATIONS COULD BE SUBJECTED
CONSTITUTIONALLY TO A TENNESSEE PRIVILEGE TAX.  IN NASHVILLE, AS IN
THIS CASE, NONE OF THE FUEL STORED WAS HELD AS INVENTORY FOR SALE, AND
THE TAX WAS NOT ONE FOR THE USE OF SPECIAL SERVICES FURNISHED BY THE
STATE TO THE TAXPAYER RAILROAD. 

IN EDELMAN, THE COURT ACCEPTED THE STATE'S DETERMINATION THAT THE
TAXABLE EVENT WAS WITHDRAWAL FROM STORAGE RATHER THAN CONSUMPTION.  389
U.S.,AT 251.  THE AIRLINE IN EDELMAN CONTENDED, ID., AT 252, THAT THE
STATE TAX WAS INVALID UNDER HELSON V. KENTUCKY, 279 U.S. 245(1929).  IN
HELSON, THE COURT HELD THAT A KENTUCKY TAX ON THE USE OF GASOLINE
WITHIN THE STATE FELL TOO DIRECTLY ON INTERSTATE COMMERCE WHEN IT WAS
IMPOSED ON FUEL LOADED IN ILLINOIS BUT CONSUMED IN THE COURSE OF AN
INTERSTATE FERRY'S TRIP THROUGH KENTUCKY.  IN EDELMAN, THE COURT
DISTINGUISHED HELSON BECAUSE STORAGE, RATHER THAN CONSUMPTION, WAS THE
TAXABLE EVENT.  SEE SOUTHERN PACIFIC CO. V. GALLAGHER, 306 U.S.
167(1939). 

THE SUPREME COURT OF ILLINOIS CHARACTERIZED THE TAXABLE "USE" UNDER
THE ILLINOIS STATUTE AS EITHER STORAGE OR WITHDRAWAL FROM STORAGE. 
UNITED ARGUED IN THE STATE COURT THAT THE TEMPORARY-STORAGE PROVISION
CONSTITUTED A LEGISLATIVE WAIVER OF THE RIGHT TO TAX STORAGE PRIOR TO
LOADING.  THE ILLINOIS COURT REJECTED THIS CONTENTION, NOTING THAT
UNITED STORED FUEL AT THE AIRPORT FOR GENERAL USE.  ON THESE FACTS, THE
SUPREME COURT OF ILLINOIS CONCLUDED THAT THE ILLINOIS USE TAX APPLIED
TO STORAGE BY UNITED BEFORE LOADING AND THAT THIS APPLICATION WAS
CONSTITUTIONAL: 

"UNDER THE CIRCUMSTANCES, THE 'STORAGE' BECOMES SOMETHING MORE THAN
A 'TEMPORARY STORAGE' FOR SAFEKEEPING PRIOR TO ITS USE SOLELY OUTSIDE
OF ILLINOIS.  SUCH STORAGE, UNDER THE PLAIN WORDS OF THE STATUTE, DOES
NOT QUALIFY UNDER THE TEMPORARY STORAGE EXEMPTION AND, AS THE
AUTHORITIES ALREADY DISCUSSED REVEAL, EITHER THE STORAGE ITSELF OR THE
WITHDRAWAL THEREFROM ARE USES WHICH MAY BE TAXED WITHOUT OFFENDING THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION."  49 ILL.2D, AT 55-56, 273
N.E.2D, AT 590. 

THE ILLINOIS DISSENTERS, TOO, TREATED THE TAXABLE EVENT AS STORAGE
OR WITHDRAWAL.  49 ILL.2D, AT 57, 273 N.E.2D, AT 591.  /5/ 

THIS COURT USUALLY HAS DEFERRED TO THE INTERPRETATION PLACED ON A
STATE TAX STATUTE BY THE HIGHEST COURT OF THE STATE.  SCRIPTO, INC. V.
CARSON, 362 U.S. 207, 210(1960); GENERAL TRADING CO. V. STATE TAX
COMM'N, 322 U.S. 335, 337(1944).  SEE EVCO V. JONES, 409 U.S.
91(1972).  AS IN EDELMAN, WE SEE NO REASON TO IGNORE, OR TO DISAGREE
WITH, THE STATE COURT'S DETERMINATION THAT THE TAXABLE EVENT IS STORAGE
RATHER THAN CONSUMPTION. 

WE HOLD THAT EDELMAN AND NASHVILLE SUPPORT THE CONCLUSION OF THE
SUPREME COURT OF ILLINOIS THAT THIS TAX, AS APPLIED TO ALL FUEL
WITHDRAWN FROM STORAGE FOR CONSUMPTION IN AN INTERSTATE VEHICLE, DOES
NOT PLACE AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE.  FURTHER,
WE DECLINE TO HOLD THAT EDELMAN HAS OUTLIVED ITS USEFULNESS.  /6/  WE
MUST CONCEDE THAT FOR A LONG TIME THIS AREA OF STATE TAX LAW HAS BEEN
CLOUDY AND COMPLICATED, PRIMARILY BECAUSE THE VARIED NATURE OF
INTERSTATE ACTIVITIES MAKES LINE DRAWING DIFFICULT.  THIS COURT HAS
ESTABLISHED SOME PRECEDENTS, HOWEVER, AND EDELMAN AND NASHVILLE REMAIN
USEFUL GUIDELINES. 

THE LINE DRAWN BETWEEN AN IMPERMISSIBLE TAX ON MERE CONSUMPTION OF
FUEL, AS IN HELSON, AND A PERMISSIBLE TAX ON STORAGE OF FUEL BEFORE
LOADING, AS IN EDELMAN AND NASHVILLE, CONTINUES TO SERVE RATIONAL
PURPOSES.  RETAINING THE LINE AT THIS POINT MINIMIZES THE DANGER OF
DOUBLE TAXATION AND YET PROVIDES A SOURCE OF REVENUE HAVING A RELATION
TO THE EVENT TAXES.  DOUBLE TAXATION IS MINIMIZED BECAUSE THE FUEL
CANNOT BE TAXED BY STATES THROUGH WHICH IT IS TRANSPORTED, UNDER
MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S. 157(1954), NOR BY
THE STATE IN WHICH IT IS MERELY CONSUMED, UNDER HELSON.  A FAIR RESULT
IS ACHIEVED BECAUSE A STATE IN WHICH PRELOADING STORAGE FACILITIES ARE
MAINTAINED IS LIKELY TO PROVIDE SUBSTANTIAL SERVICES TO THOSE
FACILITIES, INCLUDING POLICE PROTECTION AND THE MAINTENANCE OF PUBLIC
ACCESS ROADS.  /7/ 

SINCE NO PERSUASIVE REASON HAS BEEN ADVANCED FOR CHANGING THE
ESTABLISHED RULE, WE REAFFIRM EDELMAN AND NASHVILLE AS PRECEDENTS. 

        II 

UNITED CONTENDED IN STATE COURT THAT THE ILLINOIS TEMPORARY-STORAGE
EXEMPTION SHOULD BE INTERPRETED, AS A MATTER OF STATE LAW, TO ENCOMPASS
THE "BURN OFF" RULE WHICH, AS NOTED ABOVE, HAD RECEIVED ADMINISTRATIVE
SANCTION FOR EIGHT YEARS.  49 ILL.2D, AT 49, 273 N.E.2D, AT 587.  TWO
JUSTICES OF THE ILLINOIS COURT DEEMED THEMSELVES BOUND UNDER HELSON TO
REGARD THE "BURN OFF" RULE AS INVALID UNDER THE FEDERAL CONSTITUTION. 
49 ILL.2D, AT 50, 273 N.E.2D, AT 587.  THIS BASIS FOR CONSTRUING A
STATE STATUTE CREATES A FEDERAL QUESTION.  RED CROSS LINE V. ATLANTIC
FRUIT CO., 264 U.S. 109, 120(1924).  THE POSSIBILITY THAT THE STATE
COURT MIGHT HAVE REACHED THE SAME CONCLUSION IF IT HAD DECIDED THE
QUESTION PURELY AS A MATTER OF STATE LAW DOES NOT CREATE AN ADEQUATE
AND INDEPENDENT STATE GROUND THAT RELIEVES THIS COURT OF THE NECESSITY
OF CONSIDERING THE FEDERAL QUESTION.  BEECHER V. ALABAMA, 389 U.S. 35,
37 N. 3(1967); SEE C. WRIGHT, FEDERAL COURTS SEC. 107, P. 488 (2D ED
1970).  SINCE THE OTHER JUSTICES OF THE ILLINOIS COURT DIVIDED THREE TO
TWO ON THE STATE LAW ISSUE, THE VOTES OF THE TWO WHO FELT BOUND BY
HELSON COULD BE DETERMINATIVE OF THE STATE ISSUE.  UNDER THESE
CIRCUMSTANCES, WE PROCEED TO CONSIDER THE VALIDITY OF THE "BURN OFF"
RULE IN THE LIGHT OF HELSON, AS UNITED HAS URGED US TO DO.  SEE PERKINS
V. BENGUET MINING CO., 342 U.S. 437, 441-443(1952). 

THE FACTS IN HELSON ARE DIFFERENT FROM THE FACTS HERE.  IN HELSON,
THE OPERATORS OF THE INTERSTATE FERRY BOAT PURCHASED AND TOOK DELIVERY
OF FUEL IN ILLINOIS.  THE OFFICE, THE PLACE OF BUSINESS, AND THE SITUS
OF ALL THE TAXPAYER'S PROPERTY WERE IN ILLINOIS.  THE BOAT CROSSED THE
OHIO RIVER INTO KENTUCKY ON REGULAR RUNS, AND KENTUCKY SOUGHT TO IMPOSE
A TAX ON THE USE OF GASOLINE CONSUMED IN KENTUCKY.  THE COURT
INVALIDATED THE TAX "COMPUTED AND IMPOSED UPON THE USE OF THE GASOLINE
THUS CONSUMED."  279 U.S.,AT 248. 

IN THE PRESENT CASE, ILLINOIS IS THE STATE OF STORAGE OF UNITED'S
FUEL BEFORE LOADING.  IF ILLINOIS IMPOSED A TAX ON THE BASIS OF THAT
STORAGE BUT MEASURED THE TAX ONLY BY THE FUEL CONSUMED OVER ILLINOIS, A
LOWER TAX WOULD RESULT.  THE DANGERS OF MULTIPLE TAXATION AND POSSIBLE
TAX WINDFALLS, ALREADY SUGGESTED AS JUSTIFYING THE HELSON DECISION,
WOULD NOT BE PRESENT IF THE TAX WERE IMPOSED ON STORAGE PRIOR TO
LOADING BUT WERE MEASURED BY CONSUMPTION.  MULTIPLE TAXATION AND TAX
WINDFALLS ARE AVOIDED BECAUSE ONLY ONE STATE-- THE STATE OF STORAGE
BEFORE LOADING-- HAS A LOCAL EVENT UPON WHICH A TAX IS IMPOSED.  UNDER
HELSON, STATES OVER WHICH THE PLANES FLY WILL BE UNABLE TO IMPOSE A TAX
ON MERE CONSUMPTION.  /8/ 

THE USE OF A METHOD OF TAX MEASUREMENT THAT IS INTIMATELY RELATED TO
INTERSTATE COMMERCE IS NOT AUTOMATICALLY UNCONSTITUTIONAL.  TOLLS ON
THE USE OF FACILITIES THAT AID INTERSTATE COMMERCE HAVE BEEN UPHELD
EVEN WHEN MEASURED BY PASSENGERS OR BY MILEAGE TRAVELED ON THE HIGHWAYS
OF A STATE.  EVANSVILLE-VANDERBURGH AIRPORT AUTHORITY DISTRICT V. DELTA
AIRLINES, 405 U.S. 707(1972); INTERSTATE BUSSES CORP. V. BLODGETT, 276
U.S. 245(1928).  UPON THE FACTS BEFORE US, /9/  WE SEE NO
CONSTITUTIONAL BARRIER TO THE USE OF THE "BURN OFF" RULE BY ILLINOIS TO
MEASURE THE TAX IMPOSED FOR STORAGE BEFORE LOADING. 

SINCE WE NOW DETERMINE THAT THE FEDERAL COMPULSION FELT BY TWO
JUSTICES OF THE ILLINOIS COURT IS NOT WARRANTED, WE REMAND THE CASE TO
AVOID THE RISK OF "AN AFFIRMANCE OF A DECISION WHICH MIGHT HAVE BEEN
DECIDED DIFFERENTLY IF THE COURT BELOW HAD FELT FREE, UNDER OUR
DECISIONS, TO DO SO."  PERKINS V. BENGUET MINING CO., 342 U.S.,AT 443. 
WE, OF COURSE, EXPRESS NO OPINION ON THE CONSTRUCTION OF THE TEMPORARY
STORAGE PROVISION UNDER STATE LAW. 

THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS IS VACATED AND THE
CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS. 

              IT IS SO ORDERED. 

/0/  JAMES A. VELDE FILED A BRIEF FOR AMERICAN AIRLINES, INC., ET
AL. AS AMICI CURIAE URGING REVERSAL. 

/1/  TURBINE (JET) FUEL FOR USE AT O'HARE IS SHIPPED BY COMMON
CARRIER PIPELINE FROM THE SUPPLIER'S INDIANA TERMINALS TO A 15-MILLION
GALLON STORAGE FACILITY AT DES PLAINES, ILLINOIS.  APP. 168-169. 
NORMALLY, THREE DELIVERIES ARE MADE EACH MONTH TO THIS FACILITY.  APP.
129.  SMALLER QUANTITIES OF FUEL ARE TRANSFERRED BY PIPELINE TO
FACILITIES MAINTAINED BY UNITED AT O'HARE.     TURBINE FUEL FOR USE AT
MIDWAY AND AVIATION GASOLINE FOR BOTH AIRPORTS IS TRANSPORTED FROM
INDIANA BY COMMON CARRIER TANK TRUCK TO AIRPORT STORAGE FACILITIES. 
APP. 159. 

/2/  THE PARTIES HAVE STIPULATED THAT THE PERIOD OF STORAGE RANGES
FROM TWO TO 12 DAYS.  APP. 38.  THE DES PLAINES STORAGE FACILITIES ARE
NOT OWNED BY UNITED; IT AND ANOTHER AIRLINE JOINTLY LEASE THE
FACILITIES.  UNITED SHARES IN THE COST OF REPAIRS, THE RISK OF LOSS,
AND THE EMPLOYMENT OF A MANAGING AGENT.  APP. 132, 168. 

/3/  APP. 173-174.  UNITED USES FUEL FROM THE STORAGE FACILITIES FOR
ITS INTRASTATE TRAINING FLIGHTS AND FOR THE INTRASTATE LEG OF FLIGHTS
THAT STOP AT BOTH CHICAGO AND MOLINE, ILLINOIS.  49 ILL.2D 45, 47-48,
273 N.E.2D 585, 586.  UNITED ALSO ENGAGES IN INTERSTATE CHARTER
FLIGHTS.  APP. 37 N. 6. 

/4/  THE TEMPORARY-STORAGE PROVISION EXCEPTS 

"(D) THE TEMPORARY STORAGE, IN THIS STATE, OF TANGIBLE PERSONAL
PROPERTY WHICH IS ACQUIRED OUTSIDE THIS STATE AND WHICH, SUBSEQUENT TO
BEING BROUGHT INTO THIS STATE OR PHYSICALLY ATTACHED TO OR INCORPORATED
INTO OTHER TANGIBLE PERSONAL PROPERTY THAT IS USED SOLELY OUTSIDE THIS
STATE."  SEC. 439.3. 

/5/  THE ILLINOIS COURT'S INTERPRETATION OF THE TEMPORARY-STORAGE
PROVISION MAKES IT CLEAR THAT LOADING INTO THE TANKS OF THE AIRPLANE IS
A RELEVANT EVENT BUT IS NOT THE TAXABLE EVENT.  THE COURT INDICATED
THAT THE TEMPORARY STORAGE EXEMPTION SUSPENDED THE EFFECT OF OTHERWISE
TAXABLE EVENTS: 

"TO PUT IT ANOTHER WAY, THE LEGISLATURE HAS STATED THAT THE
TEMPORARY STORAGE AND THE WITHDRAWAL THEREFROM ARE NOT TAXABLE USES, IF
THE PROPERTY IN QUESTION IS TO BE USED SOLELY OUTSIDE THE STATE.  IT IS
CLEAR THAT IF UNITED WAS TO WITHDRAW ITS FUEL FROM STORAGE AT DES
PLAINES AND THE AIRPORTS AND TRANSPORT IT OUTSIDE THE STATE FOR USE
ELSEWHERE, AS FOR EXAMPLE AT AN AIRPORT IN NEARBY WISCONSIN, THE
EXEMPTION WOULD APPLY AND NEITHER THE STORAGE, NOR THE WITHDRAWAL, NOR
THE TRANSPORTATION OF THE FUEL OUTSIDE THE STATE WOULD BE USES SUBJECT
TO THE TAX."  49 ILL.2D, AT 55, 273 N.E.2D, AT 590. 

UNDER THIS VIEW, ALL THE FUEL IS "USED" AND SUBJECT TO ILLINOIS TAX
WHEN IT IS TEMPORARILY STORED OR WITHDRAWN FROM STORAGE.  THE TAXABLE
EVENT IS NULLIFIED, HOWEVER, IF THE FUEL IS TRANSPORTED FROM THE STATE
FOR CONSUMPTION ELSEWHERE. 

ALTHOUGH THIS USE OF A SUBSEQUENT EVENT TO DEFINE THE EFFECT OF A
PRIOR EVENT MAY APPEAR SOMEWHAT UNUSUAL, THE RESULT MAY BE SAID TO BE
COMPELLED SINCE FUEL IN TRANSIT MAY NOT BE CONSTITUTIONALLY TAXED.  SEE
MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S. 157(1954).  A
SIMILAR EXEMPTION FOR GASOLINE "EXPORTED OR SOLD FOR EXPORTATION FROM
THE STATE" WAS PRESENT IN THE WYOMING STATUTE CHALLENGED IN EDELMAN V.
BOEING AIR TRANSPORT, 289 U.S. 249, 250(1933). 

/6/  AMICI HAVE URGED RECONSIDERATION OF EDELMAN, ARGUING THAT IT
REPRESENTS "A HIGH-WATER MARK IN THE COURT'S SEARCH IN THE EARLY
THIRTIES FOR FORMULAS THAT WOULD ASSIST STATES IN FINDING ADDITIONAL
SOURCES OF REVENUE.?  BRIEF FOR AMERICAN AIRLINES ET AL. 13. 

/7/  ALTHOUGH THIS IS A GENERAL STATE TAX, RATHER THAN A TOLL ON
COMMERCE, THIS COURT HAS RECOGNIZED THAT INTERSTATE COMMERCE CAN BE
"REQUIRED TO PAY A NONDISCRIMINATORY SHARE OF THE TAX BURDEN."  BRANIFF
AIRWAYS V. NEBRASKA STATE BOARD OF EQUALIZATION, 347 U.S. 590,
598(1954).  IN HELSON V. KENTUCKY, 279 U.S. 245(1929), IN CONTRAST, THE
FERRY BOAT WAS ASKED TO BEAR MORE THAN ITS "NON-DISCRIMINATORY SHARE"
WHEN IT WAS TAXED ONLY FOR PASSING THROUGH KENTUCKY WATERS. 

/8/  THOSE JUSTICES OF THE ILLINOIS COURT WHO RELIED ON HELSON DID
NOT CONSIDER, APPARENTLY, ANY INTERPRETATION OF HELSON THAT WOULD
PREVENT MULTISTATE TAXATION.  THEY SUGGESTED THAT AN ADOPTION OF THE
"BURN OFF" RULE WOULD ALLOW TAXATION BY EVERY STATE OVER WHICH UNITED'S
PLANES FLY.  49 ILL.2D, AT 51, 273 N.E.2D, AT 588. 

/9/  UNITED SUCCESSFULLY CALCULATED AND PAID THE STATE TAX UNDER THE
"BURN OFF" INTERPRETATION FOR EIGHT YEARS.  APP. 41.  NO SUGGESTION HAS
BEEN MADE THAT THE RECORDKEEPING PROCEDURES WERE AN INTOLERABLE BURDEN
ON COMMERCE OR THAT SPECIAL EQUIPMENT MUST BE INSTALLED TO MEASURE FUEL
CONSUMPTION. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
WHITE CONCUR, DISSENTING. 

THE COURT TODAY MAKES A BREAK WITH THE HISTORY OF THE COMMERCE
CLAUSE THAT HAS BEEN LARGELY RESPONSIBLE FOR CREATING IN THIS NATION A
GREAT COMMON MARKET.  ONE PROTECTIVE DEVICE THIS COURT HAS USED TO KEEP
THE NATIONAL CHANNELS OF COMMERCE OPEN AGAINST HOSTILE STATE
LEGISLATION HAS BEEN THE CONSTITUTIONAL BAN ON STATE TAXATION LEVIED ON
INTERSTATE ACTIVITIES.  IN 1873, IN CASE OF STATE FREIGHT TAX, 15
WALL.  232, WE HELD UNCONSTITUTIONAL A STATE TAX "SO FAR AS IT APPLIES
TO ARTICLES . . . TAKEN UP IN THE STATE AND CARRIED OUT OF IT.  . . . "
ID., AT 282.  WHILE THERE ARE WAYS IN WHICH INTERSTATE COMMERCE CAN BE
REQUIRED TO PAY ITS WAY, WE HAVE NOT UNTIL TODAY ABANDONED THE BASIC
PRINCIPLE THAT A STATE MAY NOT TAX INTERSTATE ACTIVITIES.  THAT IS WHAT
IS DONE HERE, FOR THE ILLINOIS TAX IS LEVIED ON FILLING THE FUEL TANKS
OF AIRPLANES TAKING OFF FOR INTERSTATE OR FOREIGN JOURNEYS.  IF
ILLINOIS CAN TAX THAT SEGMENT OF THE INTERSTATE ACTIVITY, THERE IS NO
REASON WHY SHE MAY NOT TAX THE TAKEOFF ITSELF.  THE FILLING OF FUEL
TANKS TO MAKE AN INTERSTATE OR FOREIGN JOURNEY IS AS INDISPENSABLE A
PART AND PARCEL OF THE INTERSTATE OR FOREIGN JOURNEY AS USING THE
RUNWAYS FOR THAT PURPOSE. 

THE SUPREME COURT OF ILLINOIS SUSTAINED THE ILLINOIS USE TAX /1/  ON
ALL AVIATION FUEL LOADED ABOARD UNITED'S INTERSTATE AND FOREIGN FLIGHTS
DEPARTING FROM CHICAGO.  UNITED PURCHASES FUEL OUTSIDE ILLINOIS AND
STORES IT IN ILLINOIS TEMPORARILY FOR ITS INTERSTATE AND FOREIGN
OPERATIONS.  THE USE TAX EXEMPTS FROM THE TAX PROPERTY PURCHASED
OUTSIDE ILLINOIS, TEMPORARILY STORED IN THE STATE, AND USED SOLELY
OUTSIDE THE STATE.  /2/ 

UNTIL 1963 THE TEMPORARY STORAGE EXCEPTION WAS CONSTRUED BY THE
ILLINOIS DEPARTMENT OF REVENUE SO AS TO SUBJECT TO THE USE TAX ONLY
THAT FUEL LOADED ON DEPARTING FLIGHTS THAT WAS ACTUALLY BURNED OVER
ILLINOIS.  IN 1963 THE DEPARTMENT CHANGED ITS PRIOR RULING AND
ANNOUNCED: 

"(TEMPORARY STORAGE ENDS AND A TAXABLE USE OCCURS WHEN THE FUEL IS
TAKEN OUT OF STORAGE FACILITIES AND IS PLACED INTO THE TANK OF THE
AIRPLANE, RAILROAD ENGINE OR TRUCK.  AT THIS POINT, THE FUEL IS
CONVERTED INTO ITS ULTIMATE USE, AND, THEREFORE, A TAXABLE USE OCCURS
IN ILLINOIS." 

THE SUPREME COURT OF ILLINOIS UPHELD THAT CONSTRUCTION AND
APPLICATION OF THE USE TAX AGAINST THE CLAIM THAT IT VIOLATES THE
COMMERCE CLAUSE, SAYING THAT UNITED'S STORAGE BECOMES SOMETHING MORE
THAN TEMPORARY STORAGE FOR SAFEKEEPING "PRIOR TO ITS USE SOLELY OUTSIDE
OF ILLINOIS."  49 ILL.2D 45, 55, 273 N.E.2D 585, 590. 

THE TAXABLE EVENT IS THE ACT OF LOADING THE FUEL ABOARD UNITED'S
AIRCRAFT IN ILLINOIS PREPARATORY TO THEIR INTERSTATE OR FOREIGN
JOURNEY.  THE MAJORITY STATES THAT THE SUPREME COURT OF ILLINOIS
CONCLUDED THAT EITHER THE STORAGE OF THE GASOLINE ITSELF OR THE
WITHDRAWAL THEREFROM IS A USE WHICH MAY BE TAXED WITHOUT OFFENDING THE
FEDERAL CONSTITUTION.  BUT THAT STATEMENT OF THE SUPREME COURT OF
ILLINOIS WAS MADE IN ITS DISCUSSION OF THE EXEMPTION FROM THE USE TAX
WHICH, AS RELEVANT HERE, PROVIDES:  "(THE TEMPORARY STORAGE, IN THIS
STATE, OF TANGIBLE PERSONAL PROPERTY WHICH IS ACQUIRED OUTSIDE THIS
STATE AND WHICH, SUBSEQUENT TO BEING BROUGHT INTO THIS STATE AND STORED
HERE TEMPORARILY, IS USED SOLELY OUTSIDE THIS STATE."  ILL. REV. STAT.,
C. 120, SEC. 439.3(1971).  THAT MEANS THAT THE TEMPORARY-STORAGE
EXEMPTION WOULD EXTEND, NOT MERELY TO STORAGE ON THE GROUND, BUT ALSO
TO ITS LOADING ABOARD THE TRANSPORTATION VEHICLES, SUCH AS TRUCKS OR
RAILROAD CARS, AND TO ITS TRANSPORTATION FROM THE STATE.  IT IS THUS
OBVIOUS THAT, UNLESS THE MEANS OF REMOVING THE PROPERTY FROM THE STATE
IS INCLUDED IN THE SCOPE OF THE TEMPORARY STORAGE, IT WOULD BE A
NULLITY, AS APPELLANT MAINTAINS.  SINCE IN THIS CASE, THERE IS NO TAX
IF FUEL IS WITHDRAWN FROM STORAGE AND TAKEN FROM THE STATE BY OTHER
MEANS, IT IS CLEAR THAT NEITHER THE STORAGE NOR THE REMOVAL FROM
STORAGE IS WHAT MAKES THE FUEL TAXABLE.  THE MAJORITY PROPERLY NOTES
THAT, AS A MATTER OF STATE LAW AND THE ILLINOIS COURT'S INTERPRETATION
THEREOF, IT IS THE "CONSUMPTION" WHOLLY WITHOUT THE STATE THAT MAKES
THE EXCEPTION OPERABLE.  CONVERSELY, I READ THE ILLINOIS OPINION TO
MEAN THAT, AS A MATTER OF STATE LAW, IT IS AT LEAST PARTIAL CONSUMPTION
WITHIN THE STATE THAT BRINGS THE TAX ON ALL THE FUEL INTO PLAY.  THAT
IS SO EVEN IF ONLY A SMALL PORTION OF THE FUEL IS CONSUMED WITHIN THE
STATE, WHILE THE REMAINDER IS CONSUMED OUT OF STATE DURING AN
INTERSTATE OR FOREIGN FLIGHT.  THE INESCAPABLE CONCLUSION FROM THE
STATE COURT'S INTERPRETATION OF THIS STATE LAW IS THAT THE ACT OF
LOADING THE FUEL INTO THE FUEL TANKS OF THE INTERSTATE AIRCRAFT SOLELY
FOR USE AS THE MOTIVE POWER IS THE TAXABLE EVENT. 

IF THAT EVENT WERE USED TO TAX FUEL USED ON AN INTRASTATE FLIGHT, NO
PROBLEM UNDER THE COMMERCE CLAUSE WOULD ARISE.  BUT LOADING IS PART OF
THE INTERSTATE ACTIVITY WHEN PLANES PREPARE FOR AN INTERSTATE JOURNEY,
JUST AS LOADING IS A PART OF THE SHIPMENT OF GOODS BY RAIL OR WATER
INTERSTATE (PUGET SOUND STEVEDORING CO. V. TAX COMM'N, 302 U.S. 90, 92
94; JOSEPH V. CARTER & WEEKES STEVEDORING CO., 330 U.S. 422, 427, 433
434) AND JUST AS LOCAL PICKUPS OF PARCELS AND LOCAL DELIVERY OF PARCELS
IN INTERSTATE MOVEMENT ARE NOT PERMISSIBLE GROUNDS "FOR A STATE
LICENSE, PRIVILEGE OR OCCUPATION TAX."  RAILWAY EXPRESS AGENCY V.
VIRGINIA, 347 U.S. 359, 368. 

IN RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69, WE HELD INVALID
A STATE SALES TAX LEVIED ON THE DELIVERY OF FUEL OIL INTO A SHIP FOR
OVERSEAS CARRIAGE.  WE SAID "(THE INCIDENT WHICH GAVE RISE TO THE
ACCRUAL OF THE TAX WAS A STEP IN THE EXPORT PROCESS."  ID., AT 84.  A
LIKE RESULT WAS REACHED IN MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT,
374 U.S. 157, WHERE A STATE SOUGHT TO IMPOSE A SEVERANCE TAX ON THE
TRANSFER OF GAS FROM A REFINERY PIPELINE TO AN INTERSTATE PIPELINE.  WE
NOTED THAT THE "TAXABLE INCIDENCE" WAS THE TAKING OF GAS FROM A LOCAL
PLANT "FOR THE PURPOSE OF IMMEDIATE INTERSTATE TRANSMISSION."  ID., AT
161.  WE, THEREFORE, HELD IT UNCONSTITUTIONAL, SINCE IT WAS A TAX "ON
THE EXIT OF GAS FROM THE STATE."  ID., AT 167. 

THE PRESENT TAX IS ANALOGOUS TO THE TAX ON THE PRIVILEGE OF CARRYING
ON AN EXCLUSIVELY INTERSTATE BUSINESS WHICH WE STRUCK DOWN IN SPECTOR
MOTOR SERVICE V. O'CONNOR, 340 U.S. 602, 608.  A TAX UPON AN INTEGRAL
PART OF THE INTERSTATE COMMERCE IS A TAX THAT NO STATE BY REASON OF THE
COMMERCE CLAUSE IS EMPOWERED TO IMPOSE, UNLESS AUTHORIZED BY CONGRESS. 
ID., AT 608. 

THE FUEL IN UNITED'S PLANES PROPELS THE INTERSTATE FLIGHTS; BECAUSE
IT IS THE SOURCE OF THE MOTIVE POWER, IT IS ESSENTIAL TO THE INTERSTATE
JOURNEY.  IT IS, THEREFORE, INDISPUTABLY A PART AND PARCEL OF THE
INTERSTATE MOVEMENT.  MCCARROLL V. DIXIE GREYHOUND LINES, 309 U.S. 176,
INVOLVED AN ARKANSAS STATUTE WHICH PROHIBITED ANY TRUCK OR AUTOMOBILE
FROM ENTERING THE STATE WITH MORE THAN 20 GALLONS OF GASOLINE IN ITS
TANK UNLESS AN EXCISE TAX WERE PAID ON THE GASOLINE.  THE COURT HELD
THE TAX UNCONSTITUTIONAL BECAUSE IT IMPOSED A TAX ON "GASOLINE TO BE
IMMEDIATELY TRANSPORTED OVER THE ROADS OF ARKANSAS FOR CONSUMPTION
BEYOND."  ID., AT 180.  SIMILARLY, ILLINOIS IMPOSES ITS TAX ON ALL OF
THE FUEL LOADED INTO AIRPLANE TANKS, WHETHER OR NOT THAT FUEL IS
CONSUMED OUT OF STATE.  IN HELSON V. KENTUCKY, 279 U.S. 245, ON WHICH
THE ILLINOIS SUPREME COURT RELIED IN DISAPPROVING THE EARLIER
CONSTRUCTION OF THE STATUTE, A FERRY BOAT OPERATED BETWEEN ILLINOIS AND
KENTUCKY, HAVING ITS OFFICE IN ILLINOIS AND BUYING ALL ITS FUEL THERE. 
KENTUCKY SOUGHT TO TAX THAT PORTION OF THE FUEL USED IN KENTUCKY.  THIS
COURT INVALIDATED THE TAX, SAYING IT WAS "EXACTED AS THE PRICE OF THE
PRIVILEGE OF USING AN INSTRUMENTALITY OF INTERSTATE COMMERCE."  ID., AT
252.  IF THAT TAX IS INVALID, IT FOLLOWS A FORTIORI THAT ILLINOIS MAY
NOT TAX THE MOVEMENT OF AIRPLANES FROM ILLINOIS TO CALIFORNIA, FROM
ILLINOIS TO EUROPE, OR FROM ILLINOIS TO ANY OTHER OUT-OF-STATE POINT. 

IT IS NOW WELL SETTLED THAT INTERSTATE COMMERCE CAN BE REQUIRED TO
PAY ITS WAY, ILLINOIS CENTRAL R. CO. V. MINNESOTA, 309 U.S. 157;
WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250; GREYHOUND LINES
V. MEALEY, 334 U.S. 653; NORTHWESTERN CEMENT CO. V. MINNESOTA, 358 U.S.
450, A RESULT COMMONLY REACHED BY FORMULAE WHICH ALLOCATE TO THE TAXING
STATE BUSINESS DERIVED FROM OPERATIONS WITHIN THE STATE.  RAILWAY
EXPRESS AGENCY V. VIRGINIA, 358 U.S. 434.  YET, WHEN PIECES OR SEGMENTS
OF AN INTERSTATE BUSINESS ARE TAXED, OUR CASES REVEAL DISCRIMINATION IN
APPROVING OR DISAPPROVING TAXES THAT MAY BE IMPOSED.  A STATE MAY NOT
EXACT A LICENSE TAX FOR THE PRIVILEGE OF CARRYING ON INTERSTATE
COMMERCE.  MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, 56-58; MURDOCK
V. PENNSYLVANIA, 319 U.S. 105, 112-113.  AS STATED IN BERWIND-WHITE,
TAXES "WHICH ARE AIMED AT OR DISCRIMINATE AGAINST (INTERSTATE) COMMERCE
OR IMPOSE A LEVY FOR THE PRIVILEGE OF DOING IT, OR TAX INTERSTATE
TRANSPORTATION OR COMMUNICATION OF THEIR GROSS EARNINGS, OR LEVY AN
EXACTION ON MERCHANDISE IN THE COURSE OF ITS INTERSTATE JOURNEY" ARE
WITHIN THE BAN, SINCE THEY MAY "SO READILY BE MADE THE INSTRUMENT OF
IMPEDING OR DESTROYING INTERSTATE COMMERCE.  309 U.S.,AT 48. 

SALES WITHIN THE STATE, HOWEVER, ARE TAXABLE, THOUGH THE GOODS HAVE
REACHED THE MARKET BY INTERSTATE CHANNELS.  MAGNANO CO. V. HAMILTON,
292 U.S. 40, 43; MCGOLDRICK V. BERWIND-WHITE CO., SUPRA, AT 58.  THE
SALES TAX IN BERWIND-WHITE WAS ON THE "TRANSFER OF TITLE OR POSSESSION,
OR BOTH," ID., AT 43.  AND WE SUSTAINED THE TAX BECAUSE OF "A LOCAL
ACTIVITY" WHICH WE DESCRIBED AS "DELIVERY OF GOODS WITHIN THE STATE
UPON THEIR PURCHASE FOR CONSUMPTION," ID., AT 58.  AS A CONSEQUENCE, AN
OUT-OF-STATE BUYER WHO PURCHASES GOODS IN NEW YORK CITY AND TAKES THEM
WITH HIM PAYS THE TAX, WHILE IF HE HAS THEM SHIPPED TO HIM, HE PAYS NO
SALES TAX.     ALTHOUGH "DELIVERY OF GOODS" WITHIN THE STATE MAY BE
TAXED, SOLICITATION" WITHIN THE STATE FOR OUT-OF-STATE CONFIRMATION AND
SHIPMENT INTO THE STATE MAY NOT BE.  NIPPERT V. RICHMOND, 327 U.S. 416,
422; WEST POINT GROCERY CO. V. OPELIKA, 354 U.S. 390.  IN DUNBAR
STANLEY STUDIOS V. ALABAMA, 393 U.S. 537, A TAX WAS SUSTAINED ON OUT-OF
STATE PHOTOGRAPHERS, SINCE THEIR ACTIVITIES WERE NOT SOLICITING ORDERS
FOR AN OUT-OF-STATE HOUSE BUT TAKING PHOTOGRAPHS WITHIN THE STATE. 

THE USE TAX CAME INTO BEING TO COMPLEMENT THE SALES TAC, I.E., TO
FILL IN GAPS WHERE THE STATES COULD NOT CONSTITUTIONALLY TAX INTERSTATE
ARRIVALS OR DEPARTURES.  SEE HENNEFORD V. SILAS MASON CO., 300 U.S.
577, 581.  THUS, GOODS MAY BE TAXED AT THE END OF THEIR INTERSTATE
JOURNEY, WHERE THE TAX DOES NOT DISCRIMINATE AGAINST INTERSTATE
COMMERCE.  ID., AT 582-583; FELT & TARRANT CO. V. GALLAGHER, 306 U.S.
62 (USE TAX ON STORAGE, USE, OR OTHER CONSUMPTION); SOUTHERN PACIFIC
CO. V. GALLAGHER, 306 U.S. 167 (STORAGE AND USE).  USE TAXES IMPOSED ON
STORAGE OR WITHDRAWAL FROM STORAGE HAVE CONSISTENTLY BEEN SUSTAINED. 
EASTERN AIR TRANSPORT V. TAX COMM'N, 285 U.S. 147; GREGG DYEING CO. V.
QUERY, 286 U.S. 472; NASHVILLE, CHATTANOOGA & ST. LOUIS R. CO. V.
WALLACE, 288 U.S. 249; MCGOLDRICK V. BERWIND-WHITE CO., SUPRA, AT 49. 

NICE DISTINCTIONS ARE OFTEN NECESSARY BECAUSE, ALTHOUGH ALL TAXES ON
INTERSTATE CARRIERS "IN AN ULTIMATE SENSE, COME OUT OF INTERSTATE
COMMERCE" (FREEMAN V. HEWIT, 329 U.S. 249, 256), THE CONSTITUTIONAL BAN
RELATES ONLY TO "A DIRECT IMPOSITION ON THAT VERY FREEDOM OF COMMERCIAL
FLOW WHICH FOR MORE THAN A HUNDRED AND FIFTY YEARS HAS BEEN THE WARD OF
THE COMMERCE CLAUSE."  ID., AT 256. 

FOR ILLINOIS TO TAX THE STORAGE OF FUEL WITHIN ITS BORDERS IS, OF
COURSE, CONSTITUTIONALLY PERMISSIBLE, EVEN THOUGH IN TIME THE FUEL MAY
BE USED IN INTERSTATE OR FOREIGN COMMERCE.  IN EDELMAN V. BOEING AIR
TRANSPORT, 289 U.S. 249, 251, THE USE TAX WAS "NOT LEVIED UPON THE
CONSUMPTION OF GASOLINE IN FURNISHING MOTIVE POWER FOR RESPONDENT'S
INTERSTATE PLANES."  THE TAX WAS "APPLIED TO THE STORED GASOLINE AS IT
IS WITHDRAWN FROM THE STORAGE TANKS AT THE AIRPORT AND PLACED IN THE
PLANES."  IBID.  "IT IS AT THE TIME OF WITHDRAWAL ALONE THAT 'USE' IS
MEASURED FOR THE PURPOSES OF THE TAX."  ID., AT 252.  AT THAT TIME THE
GASOLINE WAS NOT IRREVOCABLY COMMITTED TO INTERSTATE COMMERCE, FOR IT
MIGHT BE DIVERTED TO PLANES ON INTRASTATE JOURNEYS. 

BY CONTRAST, THE TAXABLE EVENT ON WHICH ILLINOIS LEVIES HER TAX IS
NOT STORAGE FOR FUTURE USE, OR WITHDRAWAL FROM STORAGE, BUT ONLY
LOADING IN THE TANKS OF PLANES PREPARING FOR INTERSTATE OR FOREIGN
JOURNEYS.  IT IS, THEREFORE, INESCAPABLY A TAX ON THE ACTUAL MOTIVE
POWER FOR AN INTERSTATE OR FOREIGN JOURNEY.  TAXING THE FUEL LOADED IN
A PLANE DESTINED FOR AN INTERSTATE OR FOREIGN JOURNEY IS, IN OTHER
WORDS, TAXING THE PRIVILEGE OF USING A FACILITY IN COMMERCE, BECAUSE
THE MOTIVE POWER /3/  REPRESENTED BY THE FUEL HAS BECOME PART AND
PARCEL OF THE FACILITY.  THE DECISION TODAY MARKS A BREAK WITH OUR
CONSTITUTIONAL TRADITION, WHICH, ABSENT AN ACT OF CONGRESS, HAS LED
THIS COURT CONSISTENTLY TO HOLD THAT THE FREE FLOW OF INTERSTATE
COMMERCE IS A WARD OF THE COMMERCE CLAUSE.  WITHOUT THAT FREE FLOW OF
COMMERCE WE WOULD NOT HAVE THE GREAT COMMON MARKET WE ENJOY TODAY. 

I WOULD REVERSE THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS. 

/1/  ILL. REV. STAT., C. 120, SEC. 439.1 ET SEQ. 

/2/  ID., SEC. 439.3. 

/3/  EDELMAN WAS DISTINGUISHED IN SOUTHERN PACIFIC CO. V. GALLAGHER,
306 U.S. 167, AS INVOLVING A TAX "UPON EVENTS PRIOR TO THE COMMERCE,"
ID., AT 176, THE COURT GOING ON TO SAY:  "THE PRINCIPLE ILLUSTRATED BY
THE HELSON CASE FORBIDS A TAX UPON COMMERCE OR CONSUMPTION IN
COMMERCE."  IBID. 

MR. JUSTICE WHITE, DISSENTING. 

THE ILLINOIS STATUTE IN QUESTION, ILL. REV. STAT., C. 120, SEC.
439.3(1971), TAXES THE USE OF TANGIBLE PERSONAL PROPERTY IN ILLINOIS,
AND "USE IS DEFINED AS BEING THE "EXERCISE . . . OF ANY RIGHT OR POWER
OVER TANGIBLE PERSONAL PROPERTY INCIDENT TO THE OWNERSHIP OF THAT
PROPERTY.  . . . "  ID., SEC. 439.2.  THE ILLINOIS SUPREME COURT HELD
THAT AS APPLIED IN THIS CASE THE STATUTE TAXED EITHER THE STORAGE OR
THE WITHDRAWAL THEREFROM OF AVIATION FUEL.  BUT THE STATUTE ITSELF GOES
ON TO EXEMPT FROM TAX PROPERTY TEMPORARILY STORED IN THE STATE,
WITHDRAWN FROM STORAGE, LOADED ON TRANSPORTATION FACILITIES AND
TRANSPORTED FOR USE SOLELY OUTSIDE THE STATE.  ID., SEC. 439.3(D).  FOR
THE TAX TO APPLY, THE PROPERTY MUST NOT ONLY BE STORED AND SUBSEQUENTLY
WITHDRAWN, BUT MUST ALSO BE FURTHER USED OR CONSUMED IN THE STATE.  IT
IS THIS ACTUAL USE OR CONSUMPTION IN THE STATE AFTER STORAGE AND
WITHDRAWAL THAT TRIGGERS THE TAX.  THUS IT WAS ENOUGH HERE TO INVOKE
THE TAX THAT THE FUEL WAS TEMPORARILY STORED, WITHDRAWN, LOADED ON
INTERSTATE AIRCRAFT, AND THEN PARTIALLY USED WITHIN THE STATE.  BUT
HELSON V. KENTUCKY, 279 U.S. 245(1929), FORBIDS TAXING THE USE OF
GASOLINE CONSUMED WITHIN THE STATE ON AN INTERSTATE TRIP.  AND AS FOR
THAT PORTION OF THE FUEL WITHDRAWN FROM STORAGE, LOADED ON AN AIRCRAFT
AND CONSUMED IN ANOTHER STATE, THE EXEMPTION IN THE STATUTE WOULD
SEEMINGLY COVER IT; BUT IF THE EXEMPTION ITSELF IS NOT TO APPLY,
HELSON, A FORTIORI, BARS THE TAX.  MOREOVER, UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT, ILLINOIS HAS NO JURISDICTION TO TAX
THE USE OF PROPERTY OCCURRING IN ANOTHER STATE.  NORFOLK & W.R. CO. V.
MISSOURI STATE TAX COMM'N, 390 U.S. 317, 324-325(1968), AND CASES THERE
CITED. 

MARK H. BERENS ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE H. TEMPLETON BROWN, ROBERT L. STERN AND WILLIAM BRUCE HOFF,
JR. 

ROBERT J. O'ROURKE ARGUED THAT CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, AND WARREN
K. SMOOT AND CALVIN C. CAMPBELL, ASSISTANT ATTORNEYS GENERAL.  /0/
..END :
























OHIO V. KENTUCKY, 410 U.S. 641 


       OHIO V. KENTUCKY

        ON MOTION FOR LEAVE TO FILE AMENDED BILL OF COMPLAINT

        NO. 27, ORIG.  ARGUED JANUARY 10, 1973-- DECIDED MARCH 5,

           1973 


OHIO SOUGHT LEAVE TO FILE AN AMENDED BILL OF COMPLAINT IN AN ORIGINAL
ACTION INVOLVING A BOUNDARY DISPUTE WITH KENTUCKY.  BY THE AMENDMENT
OHIO CLAIMED THAT THE BOUNDARY BETWEEN OHIO AND KENTUCKY WAS LOCATED IN
THE MIDDLE OF THE OHIO RIVER.  THE MOTION WAS REFERRED TO THE SPECIAL
MASTER, WHO RECOMMENDED THAT THE MOTION BE DENIED.  HELD: 

1.  IN THE EXERCISE OF ITS ORIGINAL JURISDICTION, THIS COURT IS NOT
INVARIABLY BOUND BY COMMON-LAW PRECEDENT OR BY CURRENT RULES OF CIVIL
PROCEDURE.  THE REQUIREMENT OF A MOTION FOR LEAVE TO FILE A COMPLAINT
PERMITS THE COURT TO DISPOSE OF IT AT A PRELIMINARY STAGE IN AN
APPROPRIATE CASE, SUCH AS WHERE THE CLAIM IS BARRED AS A MATTER OF LAW
AND A HEARING ON THE ISSUES PRESENTED "WOULD ONLY SERVE TO DELAY
ADJUDICATION ON THE MERITS AND NEEDLESSLY ADD TO THE EXPENSE THAT THE
LITIGANTS MUST BEAR."  PP. 644-645. 

2.  OHIO'S LONG ACQUIESCENCE IN THE LOCATION OF THE OHIO-KENTUCKY
LINE AT THE NORTHERN EDGE OF THE OHIO RIVER BARS OHIO'S PRESENT CLAIM
THAT THE BOUNDARY IS AT THE MIDDLE OF THE RIVER.  PP. 648-652. 

MOTION FOR LEAVE TO FILE AMENDED BILL OF COMPLAINT DENIED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, POWELL, AND REHNQUIST,
JJ., JOINED.  DOUGLAS, J., FILLED A DISSENTING OPINION, POST, P. 652. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

ALMOST SEVEN YEARS AGO, IN MARCH 1966, THE STATE OF OHIO INSTITUTED
THIS ORIGINAL ACTION AGAINST THE COMMONWEALTH OF KENTUCKY.  BY ITS
PRAYER FOR RELIEF IN IST PROPOSED BILL OF COMPLAINT, OHIO ASKED ONLY
THAT THE COURT DECLARE AND ESTABLISH: 

"1.  THE BOUNDARY LINE BETWEEN THE STATE OF OHIO AND THE STATE

  OF KENTUCKY AS BEING THE LOW WATER MARK ON THE NORTHERLY SIDE OF

  THE OHIO RIVER IN THE YEAR 1792.  . . . 

    "2.  THE STATE OF OHIO AND THE STATE OF KENTUCKY HAVE EQUAL AND

  CONCURRENT JURISDICTION OVER AND ON ALL OF THE OHIO RIVER FROM

  THE NORTHERLY SHORE TO THE SOUTHERLY SHORE, EXCEPT JURISDICTION

  INCIDENTAL TO THE SOVEREIGNTY OF THE SOIL UNDER THE RIVER AND

  STRUCTURES PERMANENTLY ATTACHED THERETO." 

IN ITS COMPLAINT OHIO ALLEGED: 

     "4.  THE STATE OF OHIO WAS ESTABLISHED FROM THE LAND CEDED BY

  LEGISLATIVE ACT OF THE COMMONWEALTH OF VIRGINIA TO THE UNITED

  STATES ON THE 1ST DAY OF MARCH, 1784, WHICH ACT IS KNOWN AS THE

  CESSION OF VIRGINIA. 

     "5.  THE STATE OF KENTUCKY WAS ESTABLISHED BY THE SEPARATION
OF

  THE DISTRICT OF KENTUCKY FROM THE JURISDICTION OF THE

  COMMONWEALTH OF VIRGINIA PURSUANT TO THAT CERTAIN ACT OF THE

  VIRGINIA LEGISLATURE ENTITLED 'AN ACT CONCERNING THE ERECTION OF

  THE DISTRICT OF KENTUCKY INTO AN INDEPENDENT STATE,' PASSED ON

  THE 18TH DAY OF DECEMBER, 1789, WHICH ACT IS KNOWN AS THE

  VIRGINIA-KENTUCKY COMPACT. 

     "6.  THE NORTHERN BOUNDARY LINE OF THE STATE OF KENTUCKY WAS

  ESTABLISHED FROM THE CESSION OF VIRGINIA AND THE

  VIRGINIA-KENTUCKY COMPACT AS THE LOW WATER MARK ON THE NORTHERLY

  SIDE OF THE OHIO RIVER AS IT EXISTED IN THE YEAR 1972."  /1/ 

OHIO WENT ON TO ALLEGE:  FROM 1910 TO 1929, THE UNITED STATES
ERECTED DAMS IN THE OHIO RIVER FRO NAVIGATIONAL PURPOSES.  SINCE 1955,
IT HAS BEEN REPLACING THE EARLIER DAMS WITH HIGHER ONES.  THIS HAS
CAUSED THE WATERS OF THE RIVER TO RISE AND PERMANENTLY INUNDATE VARIOUS
AREAS OF BOTH OHIO AND KENTUCKY.  "AS A RESULT, THE SHORES OR BANKS OF
THE OHIO RIVER HAVE BEEN MOVED FARTHER NORTHERLY AND SOUTHERLY AS THE
WATER LEVELS HAVE INCREASED BY THE DAMMING OF THE RIVER."  THE NORTH
LOW WATER MARK OF 1792 "HAS BEEN OBSCURED BY THE INCREASED ELEVATION OF
THE WATER LEVELS."  KENTUCKY HAS CLAIMED THAT THE LINE BETWEEN THE TWO
STATES IS "ALONG THE PRESENT NORTHERLY SHORE LINE OF THE OHIO RIVER
RATHER THAN THE 1792 NORTHERLY LOW WATER MARK WHICH IS LOCATED TO THE
SOUTH OF THE PRESENT NORTH SHORE LINE."  OHIO "DOES NOW AND HAS ALWAYS
CLAIMED . . . THAT THE BOUNDARY BETWEEN IT AND KENTUCKY IS THE 1792
NORTHERLY LOW WATER MARK." 

LEAVE TO FILE THE BILL OF COMPLAINT WAS GRANTED.  384 U.S.
982(1966).  KENTUCKY BY ITS ANSWER ADMITTED THE ALLEGATIONS OF THE
ABOVE-QUOTED NUMBERED PARAGRAPHS OF OHIO'S COMPLAINT.  THE COURT THEN
APPOINTED THE HONORABLE PHILLIP FORMAN AS SPECIAL MASTER IN THE CASE. 
385 U.S. 803(1966). 

FIVE YEARS LATER, IN AUGUST 1971, OHIO MOVED FOR LEAVE TO FILE AN
AMENDED COMPLAINT.  BY THIS AMENDMENT OHIO WOULD ASSERT THAT THE
BOUNDARY BETWEEN IT AND KENTUCKY IS THE MIDDLE OF THE OHIO RIVER, OR,
ONLY ALTERNATIVELY, IS THE 1792 LOW WATER MARK ON THE NORTHERLY SHORE. 
WE REFERRED THE MOTION TO THE SPECIAL MASTER.  404 U.S. 933(1971).  HE
HELD A HEARING AND IN DUE COURSE FILED HIS REPORT.  406 U.S.
915(1972).  THE MASTER RECOMMENDED THAT THIS COURT ENTER ITS ORDER
DENYING OHIO'S PETITION FOR LEAVE TO AMEND. HIS CONCLUSION RESTED ON
THE GROUND "THAT THE PROPOSED AMENDMENT, IN ANY VIEW OF ITS FACTUAL
ALLEGATIONS, FAILS AS A MATTER OF LAW TO STATE A CAUSE OF ACTION." 
REPORT 16.  UPON THE FILING OF OHIO'S EXCEPTIONS AND KENTUCKY'S REPLY,
WE SET THE MATTER FOR ARGUMENT.  409 U.S. 974(1972). 

        I 

ACCEPTED PROCEDURES FOR AN ORDINARY CASE IN THIS POSTURE WOULD
PROBABLY LEAD US TO CONCLUDE THAT THE MOTION FOR LEAVE TO FILE SHOULD
BE GRANTED, AND THE CASE WOULD THEN PROCEED TO TRIAL OR JUDGMENT ON THE
PLEADINGS.  THIS, HOWEVER, IS NOT AN ORDINARY CASE.  IT IS ONE WITHIN
THE ORIGINAL AND EXCLUSIVE JURISDICTION OF THE COURT.  CONST., ART.
III, SEC. 2; 28 U.S.C. 1251(A).  PROCEDURES GOVERNING THE EXERCISE OF
OUR ORIGINAL JURISDICTION ARE NOT INVARIABLY GOVERNED BY COMMON-LAW
PRECEDENT OR BY CURRENT RULES OF CIVIL PROCEDURE.  SEE UNITED STATES
SUPREME COURT RULE 9; RHODE ISLAND V. MASSACHUSETTS, 14 PET.
210(1840).  UNDER OUR RULES, THE REQUIREMENT OF A MOTION FOR LEAVE TO
FILE A COMPLAINT, AND THE REQUIREMENT OF A BRIEF IN OPPOSITION, PERMIT
AND ENABLE US TO DISPOSE OF MATTERS AT A PRELIMINARY STAGE.  SEE, FOR
EXAMPLE, ALABAMA V. TEXAS, 347 U.S. 272(1954); CALIFORNIA V.
WASHINGTON, 358 U.S. 64(1958); VIRGINIA V. WEST VIRGINIA, 234 U.S. 117,
121(1914).  OUR OBJECT IN ORIGINAL CASES IS TO HAVE THE PARTIES, AS
PROMPTLY AS POSSIBLE, REACH AND ARGUE THE MERITS OF THE CONTROVERSY
PRESENTED.  TO THIS END, WHERE FEASIBLE, WE DISPOSE OF ISSUES THAT
WOULD ONLY SERVE TO DELAY ADJUDICATION ON THE MERITS AND NEEDLESSLY ADD
TO THE EXPENSE THAT THE LITIGANTS MUST BEAR. 

THIS CASE IS PECULIARLY SUSCEPTIBLE TO TREATMENT OF THAT KIND.  THE
ALLEGATIONS IN OHIO'S PROPOSED AMENDMENT ARE NOT AS YET FORMALLY
CONTROVERTED BY KENTUCKY.  WE, THEREFORE, TREAT THE NEW MATERIAL AS
ADMITTED.  KENTUCKY ASSERTS, HOWEVER, THAT, EVEN ASSUMING THE NEW
ALLEGATIONS TO BE TRUE, NO CAUSE OF ACTION IS STATED, FOR THE SUBJECT
MATTER OF OHIO'S PROPOSED AMENDMENT IS BARRED AS A MATTER OF LAW. 

        II 

IN HANDLY'S LESSEE V. ANTHONY, 5 WHEAT.  374(1820), THIS COURT
STATED THAT THE BOUNDARY BETWEEN INDIANA AND KENTUCKY WAS THE LOW WATER
MARK ON THE WESTERN OR NORTHWESTERN SIDE OF THE OHIO RIVER.  HANDLY WAS
AN ACTION FOR EJECTMENT BROUGHT BY A PLAINTIFF CLAIMING UNDER A GRANT
"FROM THE UNITED STATES, AS BEING PART OF INDIANA."  ID., AT 375.  THE
DISPUTED LAND WAS A NECK SOUTH OF A CHANNEL, OR BAYOU, THAT HAD FORMED
NORTH OF THE MAIN RIVER.  WHEN THE RIVER WAS HIGH, THE CHANNEL FILLED
AND CUT OFF THE LAND TO THE NORTH.  WHEN THE RIVER WAS LOW, THE CHANNEL
WAS DRY IN PART AND THE SEPARATION DID NOT EXIST.  THE RESOLUTION OF
THE CASE TURNED ON WHETHER THE LAND WAS IN INDIANA OR IN KENTUCKY. 
INDIANA, LIKE OHIO, RECEIVED ITS TERRITORY FROM THE UNITED STATES.  THE
COURT IN HANDLY OBSERVED THAT THE QUESTION "DEPENDS CHIEFLY ON THE LAND
LAW OF VIRGINIA, AND ON THE CESSION MADE BY THAT STATE TO THE UNITED
STATES," ID., AT 376, AND CONCLUDED THAT THE UNITED STATES ACQUIRED
TITLE FROM VIRGINIA WHEN NEGOTIATIONS DURING THE PERIOD FROM 1781-1784
RESULTED IN VIRGINIA'S CEDING ITS LANDS NORTH AND WEST OF THE OHIO
RIVER TO THE FEDERAL GOVERNMENT.  /2/  KENTUCKY WAS RECEIVED AS A STATE
OF THE UNION IN 1792 OUT OF TERRITORY VIRGINIA PURPORTED TO RETAIN AT
THE TIME OF THE 1784 CESSION.  THE COURT CONCLUDED, ON THE BASIS OF
THIS HISTORY, THAT KENTUCKY, THROUGH VIRGINIA, EXTENDED UP TO THE LOW
WATER MARK ON THE NORTHERN, OR FAR, SIDE OF THE OHIO RIVER.  MR. CHIEF
JUSTICE MARSHALL ENUNCIATED THE FOLLOWING, NOW FAMILIAR, PRINCIPLE: 

     "WHEN A GREAT RIVER IS THE BOUNDARY BETWEEN TWO NATIONS OR

  STATES, IF THE ORIGINAL PROPERTY IS IN NEITHER, AND THERE BE NO

  CONVENTION RESPECTING IT, EACH HOLDS TO THE MIDDLE OF THE

  STREAM.  BUT WHEN, AS IN THIS CASE, ONE STATE IS THE ORIGINAL

  PROPRIETOR, AND GRANTS THE TERRITORY ON ONE SIDE ONLY, IT RETAINS

  THE RIVER WITHIN ITS OWN DOMAIN, AND THE NEWLY-CREATED STATE

  EXTENDS TO THE RIVER ONLY.  THE RIVER, HOWEVER, IS ITS

  BOUNDARY."  5 WHEAT.,AT 379. 

THE RULE OF THE HANDLY CASE, AS WELL AS ITS SPECIFIC APPLICATION TO
THE KENTUCKY-INDIANA BORDER, HAS BEEN CONSISTENTLY ADHERED TO IN
SUBSEQUENT DECISIONS OF THIS COURT.  INDIANA V. KENTUCKY, 136 U.S.
479(1890) (DESPITE INDIANA'S ARGUMENT, ID., AT 486-493, THAT ITS
BOUNDARY WAS THE MIDDLE OF THE RIVER); HENDERSON BRIDGE CO. V.
HENDERSON CITY, 173 U.S. 592(1899); /3/  NICOULIN V. O'BRIEN, 248 U.S.
113(1918).  IT HAS BEEN EXPLICITLY RECOGNIZED BY THE SUPREME COURT OF
OHIO IN BOOTH V. SHEPHERD, 8 OHIO ST. 243, 247-248(1858), WHERE IT WAS
STATED WITH FAR GREATER PRECISION THAN THE MERE ASSUMPTION THE DISSENT
SUGGESTS, POST, AT 654-655, THAT: 

     "THAT CONSTRUCTION GIVEN TO THE VIRGINIA DEED OF CESSION BY
THE

  SUPREME COURT OF THE UNITED STATES, HAVING BEEN THUS ACQUIESCED

  IN AND ACTED ON BY THE COURTS, BOTH OF VIRGINIA AND OHIO, MAY BE

REGARDED AS DECISIVE OF THE QUESTION." 

SEE ALSO LESSEE OF MCCULLOCH V. ATEN, 2 OHIO 307, 310(1826); LESSEE OF
BLANCHARD V. PORTER, 11 OHIO 138, 142(1841).  /4/  SEE COMMONWEALTH V.
GARNER, 3 GRATT.  655 (GEN. COURT OF VA. 1846). 

IN ORDER TO COUNTER THIS HISTORY, OHIO ARGUES THAT, AS IT WAS NOT A
PARTY TO THE HANDLY CASE, OR TO ANY OF THE LATER CASES IN THIS COURT
THAT REAFFIRMED HANDLY, IT IS NOT BOUND BY THE RULE THERE ESTABLISHED,
WHICH IT CHARACTERIZES AS DICTUM.  IN PARTICULAR, OHIO CONTENDS THAT IT
IS FREE TO CHALLENGE THE CONCLUSION THAT VIRGINIA, PRIOR TO CEDING THE
LAND THAT NOW ENCOMPASSES BOTH INDIANA AND OHIO, HELD GOOD TITLE TO
THAT LAND. 

HANDLY AND THE LATER DECISIONS TO WHICH OHIO WAS NOT A PARTY OF
COURSE DO NOT FORECLOSE OHIO'S CLAIM IN A RES JUDICATA SENSE.  BUT
PROCEEDINGS UNDER THIS COURT'S ORIGINAL JURISDICTION ARE BASICALLY
EQUITABLE IN NATURE, RHODE ISLAND V. MASSACHUSETTS, 14 PET. 210(1840),
AND A CLAIM NOT TECHNICALLY PRECLUDED NONETHELESS MAY BE FORECLOSED BY
ACQUIESCENCE.  INDIANA V. KENTUCKY, 136 U.S.,AT 510, 518.  WE TURN TO
THAT ASPECT OF THE PRESENT CASE. 

        III 

BY ITS AMENDED COMPLAINT OHIO SEEKS TO RE-EXAMINE AN ACCEPTED
PREMISE OF THE HANDLY DECISION AND, IN THE PROCESS OF DOING SO, TO
ALTER LEGAL RIGHTS THAT, AS A PRACTICAL MATTER, HAVE LONG BEEN
SETTLED.  BY PRESENTLY CLAIMING OWNERSHIP OF HALF THE OHIO RIVER, OHIO
DOES NOT ASSERT THAT WHEN VIRGINIA CEDED THE LANDS NORTHWEST OF THE
RIVER, IT INTENDED TO ESTABLISH THE RIVER'S CENTER AS THE LINE BETWEEN
OHIO AND KENTUCKY, BUT, AT THE SAME TIME AND THUS INCONSISTENTLY, TO
ESTABLISH ITS NORTHERN EDGE AS THE LINE BETWEEN INDIANA AND KENTUCKY. 
RATHER, OHIO CHALLENGES THE VERY POSTULATE UNDERLYING THE HANDLY
DECISION, WHICH MUST BE TAKEN, IN PRACTICAL EFFECT, AS ESTABLISHING THE
ENTIRE NORTHERN BOUNDARY OF KENTUCKY INCLUDING ITS CONTACT WITH OHIO. 
OHIO'S NEW THEORY IS THAT VIRGINIA DID NOT HAVE TITLE TO THE LANDS
NORTH OF THE OHIO RIVER IN 1784 WHEN VIRGINIA SURRENDERED ITS CLAIM TO
THE UNITED STATES.  VIRGINIA'S CLAIM, IT IS SAID, WAS BASELESS. 
INDEED, OHIO ARGUES THAT TITLE TO THESE LANDS WAS HOTLY CONTESTED, WITH
VIRGINIA, NEW YORK, MASSACHUSETTS, CONNECTICUT, AND THE UNITED STATES
ALL LAYING CLAIM TO THE TERRITORY NORTH OF THE RIVER.  THE CONTINENTAL
CONGRESS, FEARING THE THREAT THIS CONTROVERSY POSED FOR THE YOUTHFUL
NATION, REFUSED TO RESOLVE THE DISPUTED CLAIMS, AND, INSTEAD PREVAILED
UPON EACH OF THE CLAIMANTS TO FORGO ITS CLAIM IN FAVOR OF THE UNITED
STATES FOR THE COMMON GOOD.  ACCORDINGLY, OHIO CONTENDS, THE PREMISE OF
HANDLY-- THAT VIRGINIA HAD TITLE TO THE NORTHWEST TERRITORY PRIOR TO
CEDING IT TO THE UNITED STATES, OR, TO SAY IT ANOTHER WAY, THAT IT WAS
THE COMMON PROPRIETOR OF LANDS ON BOTH SIDES OF THE RIVER-- IS
HISTORICALLY INVALID. 

WE NEED INTIMATE NO VIEW ON THE MERITS OF OHIO'S HISTORICAL
ANALYSIS, FOR THE STATE'S LONG ACQUIESCENCE IN THE LOCATION OF ITS
SOUTHERN BORDER AT THE NORTHERN EDGE OF THE OHIO RIVER, AND ITS
PERSISTENT FAILURE TO ASSERT A CLAIM TO THE NORTHERN HALF OF THE RIVER,
CONVINCE US THAT IT MAY NOT RAISE THE MIDDLE-OF-THE-RIVER ISSUE AT THIS
VERY LATE DATE.  THE 1820 DECISION IN HANDLY NECESSARILY PLACED OHIO ON
NOTICE THAT ANY CLAIM IT MIGHT ASSERT TO HALF THE RIVER WOULD BE
PRECLUDED BY THE REASONING OF THAT OPINION.  THE COURT IN HANDLY
CONCLUDED THAT THE ENTIRE BORDER BETWEEN INDIANA AND KENTUCKY WAS THE
RIVER'S NORTHERN EDGE.  VIRGINIA'S CLAIM TO THE TERRITORY THAT IS NOW
INDIANA AROSE FROM THE SAME SOURCE AS ITS CLAIM TO WHAT IS NOW OHIO. 
THE LANDS TO WHICH VIRGINIA PURPORTEDLY SURRENDERED TITLE TO THE UNITED
STATES IN 1784 ENCOMPASSED BOTH OHIO AND INDIANA.  /5/  OHIO COULD NOT
REASONABLY HAVE BELIEVED, AFTER HANDLY, THAT ITS CLAIM OVER THE
NORTHERN HALF OF THE OHIO RIVER RESTED ON A FOOTING DIFFERENT FROM THAT
OF INDIANA. 

INDEED, OHIO CONSISTENTLY HAS RECOGNIZED THAT HANDLY AND THE CASES
THAT FOLLOWED IT FORECLOSED ANY CLAIM THAT ITS BORDER WAS LOCATED IN
THE MIDDLE OF THE RIVER.  EVEN ITS ORIGINAL 1966 BILL OF COMPLAINT AND
SUPPORTING BRIEF /6/  IN THIS CASE SO STATE.  THE DECISIONS OF OHIO'S
HIGHEST COURT ARE TO THE SAME EFFECT.  AND OHIO FOR OVER 150 YEARS HAS
FAILED TO ASSERT, THROUGH PROCEEDINGS AVAILABLE IN THIS COURT, THE
CLAIM IT NOW WOULD RAISE IN THE FACE OF KENTUCKY'S LEGISLATIVE /7/  AND
JUDICIAL /8/  ASSERTIONS OF SOVEREIGNTY OVER THE RIVER. 

OHIO DOES NOT SAY THAT ITS FAILURE TO ASSERT ITS CLAIM OVER THE PAST
CENTURY AND A HALF IS DUE TO ANY EXCUSABLE NEGLECT.  THE IMPLICATIONS
OF HANDLY AND LATER DECISIONS OF THIS COURT ARE TOO CLEAR TO SUPPORT
THAT CLAIM.  OHIO RECOGNIZED THIS IN ITS INITIAL BRIEF HERE.  /9/  NOR,
IN THE LIGHT OF THE LONGSTANDING AND UNEQUIVOCAL CLAIMS OF KENTUCKY
OVER THE RIVER, AND OHIO'S FAILURE TO OPPOSE THOSE CLAIMS, MAY OHIO
CREDIBLY SUGGEST THAT IT HAS NOT ACQUIESCED.  "THE RULE, LONG-SETTLED
AND NEVER DOUBTED BY THIS COURT, IS THAT LONG ACQUIESCENCE BY ONE STATE
IN THE POSSESSION OF TERRITORY BY ANOTHER AND IN THE EXERCISE OF
SOVEREIGNTY AND DOMINION OVER IT IS CONCLUSIVE OF THE LATTER'S TITLE
AND RIGHTFUL AUTHORITY."  MICHIGAN V. WISCONSIN, 270 U.S. 295,
308(1926).  TO LIKE EFFECT ARE VERMONT V. NEW HAMPSHIRE, 289 U.S. 593,
613(1933); MARYLAND V. WEST VIRGINIA, 217 U.S. 1, 42-44(1910);
LOUISIANA V. MISSISSIPPI, 202 U.S. 1, 53-54(1906); VIRGINIA V.
TENNESSEE, 148 U.S. 503, 523(1893); INDIANA V. KENTUCKY, 136 U.S.,AT
509-510, 518; RHODE ISLAND V. MASSACHUSETTS, 4 HOW.  591, 639(1846). 
/10/     HERE WE HAVE NOT ONLY LONG ACQUIESCENCE BY OHIO IN KENTUCKY'S
OPEN CLAIMS OVER THE RIVER, BUT ALSO LINES OF CASES BY THIS COURT AND
THE COURTS OF BOTH OHIO AND KENTUCKY THAT, FOR MORE THAN 150 YEARS,
PLACED OHIO ON CONSISTENT NOTICE OF THE INADEQUACY OF THE CLAIM IT NOW
ASSERTS.  WE FIND OURSELVES IN AGREEMENT WITH THE SPECIAL MASTER THAT
OHIO IS FORECLOSED FROM CLAIMING THAT ITS BOUNDARY WITH KENTUCKY LIES
IN THE MIDDLE OF THE OHIO RIVER. 

THE SPECIAL MASTER'S RECOMMENDATION IS ADOPTED AND OHIO'S MOTION FOR
LEAVE TO AMEND ITS BILL OF COMPLAINT IS DENIED.  THE CASE IS REMANDED
TO THE SPECIAL MASTER FOR FURTHER PROCEEDINGS. 

              IT IS SO ORDERED. 

/1/  1792 IS THE YEAR KENTUCKY BECAME A STATE.  1 STAT. 189. 

/2/  RECOMMENDATION OF THE CONTINENTAL CONGRESS, SEPTEMBER 6, 1780,
10 W.HENING, LAWS OF VIRGINIA 562(1822); RESOLUTION OF THE GENERAL
ASSEMBLY OF VIRGINIA, JANUARY 2, 1781, CONDITIONED, AMONG OTHER THINGS,
UPON RATIFICATION OF THE ARTICLES OF CONFEDERATION AND UPON LIKE
CESSIONS BY OTHER STATES, ID., AT 564, 567; ACT OF THE CONTINENTAL
CONGRESS, SEPTEMBER 13, 1783, 25 J.OF THE CONT.CONG.  1774-1789, P.
559(1922); ACT OF CONFIRMATION, OCTOBER 20, 1783, 11 W.HENING, LAWS OF
VIRGINIA 326(1823); ACT OF THE CONTINENTAL CONGRESS, MARCH 1, 1784, 1
LAWS OF THE UNITED STATES 472(B. & D. ED. 1815). 

THE 1781 VIRGINIA RESOLUTION RECITED THAT THE COMMONWEALTH "WILL
YIELD TO THE CONGRESS OF THE UNITED STATES . . . ALL RIGHT, TITLE, AND
CLAIM THAT THE SAID COMMONWEALTH HATH TO THE LANDS NORTHWEST OF THE
RIVER OHIO."  10 W.HENING, LAWS OF VIRGINIA 564(1822).  AMONG THE
PROPOSED CONDITIONS WAS ALSO A GUARANTEE BY THE UNITED STATES TO
VIRGINIA OF "ALL THE REMAINING TERRITORY OF VIRGINIA INCLUDED BETWEEN
THE ATLANTIC OCEAN AND THE SOUTH EAST SIDE OF THE RIVER OHIO."  ID., AT
566.  THIS LATTER CONDITION WAS NOT AGREED TO BY THE CONGRESS BY ITS
ACT OF 1783.  25 J.OF THE CONT.CONG.  1774-1789, P. 563(1922). 

THE 1783 ACT REFERRED TO TERRITORY "TO THE NORTH-WEST OF THE RIVER
OHIO."  11 W.HENING, LAWS OF VIRGINIA 327.  SO, TOO, DID THE DEED OF
MARCH 1, 1784, FROM VIRGINIA TO THE UNITED STATES, SUPRA, AT 474. 

/3/  "UPON THIS QUESTION OF BOUNDARY NOTHING CAN BE ADDED TO WHAT
WAS SAID IN THE CASES CITED; AND IT MUST BE ASSUMED AS INDISPUTABLE
THAT THE BOUNDARY OF KENTUCKY EXTENDS TO LOW-WATER MARK ON THE WESTERN
AND NORTHWESTERN BANKS OF THE OHIO RIVER."  HENDERSON BRIDGE CO. V.
HENDERSON CITY, 173 U.S. 592, 613(1899). 

/4/  THERE IS A POSSIBLE INTIMATION TO THE CONTRARY IN THE BRIDGE
TAX CASE OF COVINGTON & CINCINNATI BRIDGE CO. V. MAYER, 31 OHIO ST.
317, 327, 329(1877).  THE CASE APPEARS, HOWEVER, TO HAVE BEEN RESOLVED
ON THE CONTENT OF THE BRIDGE COMPANY'S OHIO CHARTER GRANTING PERMISSION
FOR THE ERECTION OF THE BRIDGE.  SEE SEBASTIAN V. COVINGTON &
CINCINNATI BRIDGE CO., 21 OHIO ST. 451(1871). 

/5/  SEE INDIANA V. KENTUCKY, 136 U.S. 479, 505(1890).  SEE ALSO THE
DEED OF MARCH 1, 1784, REFERRED TO IN N.2, SUPRA, FROM VIRGINIA TO THE
UNITED STATES.  ON AUGUST 7, 1789, CONGRESS PASSED "AN ACT TO PROVIDE
FOR THE GOVERNMENT OF THE TERRITORY NORTHWEST OF THE RIVER OHIO."  1
STAT. 50.  IN 1800, THIS TERRITORY WAS DIVIDED INTO TWO SEPARATE
GOVERNMENTS.  2 STAT. 58.  AND ON APRIL 30, 1802, THE ENABLING ACT FOR
THE ADMISSION OF OHIO WAS PASSED.  2 STAT. 173.  THE STATE WAS FORMED
OUT OF THE EASTERN HALF OF THE THERETOFORE DIVIDED TERRITORY AND WAS
"BOUNDED . . . ON THE SOUTH BY THE OHIO RIVER," IBID.; THE LAND IN THE
EASTERN DIVISION NOT INCLUDED WITHIN THE BOUNDARIES DESCRIBED FOR OHIO
"IS HEREBY ATTACHED TO, AND MADE A PART OF THE INDIANA TERRITORY." 
ID., AT 174. 

/6/  "THE STATE OF OHIO DOES NOW, AND HAS ALWAYS CLAIMED AND
MAINTAINED THAT THE BOUNDARY BETWEEN IT AND THE STATE OF KENTUCKY IS
THE NORTHERLY LOW WATER MARK OF THE OHIO RIVER, AS THAT MARK EXISTED IN
THE YEAR 1792 WHEN KENTUCKY BECAME A STATE."  BRIEF IN SUPPORT OF
MOTION FOR LEAVE TO FILE COMPLAINT 8. 

/7/  IN 1810, A DECADE BEFORE THE HANDLY DECISION, THE KENTUCKY
LEGISLATURE ENACTED THE FOLLOWING STATUTE: 

"SEC. 1 BE IT ENACTED BY THE GENERAL ASSEMBLY, THAT EACH COUNTY OF
THIS COMMONWEALTH, CALLING FOR THE RIVER OHIO, AS THE BOUNDARY LINE,
SHALL BE CONSIDERED AS BOUNDED IN THAT PARTICULAR BY THE STATE LINE ON
THE NORTH WEST SIDE OF SAID RIVER, AND THE BED OF THE RIVER AND THE
ISLANDS, THEREFORE SHALL BE WITHIN THE RESPECTIVE COUNTIES, HOLDING THE
MAIN LAND OPPOSITE THERETO, WITHIN THIS STATE, AND THE SEVERAL COUNTY
TRIBUNALS, SHALL HOLD JURISDICTION ACCORDINGLY."  ACTS OF KENTUCKY,
1809, P. 100(1810); 1 STATUTE LAWS OF KENTUCKY 268(1834). 

SEE ALSO 2 KY.REV.STAT.,TIT.  1, C. 1, P. 2(1971). 

/8/  COMMONWEALTH V. HENDERSON COUNTY, 371 S.W.2D 27, 29-30(1963);
LOUISVILLE SAND & GRAVEL CO. V. RALSTON, 266 S.W.2D 119, 121-122(1954);
SHANNON V. STRECKFUS STEAMERS, INC., 279 KY. 649, 653, 131 S.W.2D 833,
835(1939); MCFARLAND V. MCKNIGHT, 45 KY. 500, 510(1846); CHURCH V.
CHAMBERS, 3 DANA 274, 278-279(CT. APP. KY. 1835); FLEMING V. KENNEY, 27
KY. 155, 158(1830); MCFALL V. COMMONWEALTH, 2 METC.  394, 396(KY.
1959). 

/9/  "LIKE OHIO, THE STATE OF INDIANA WAS FORMED FROM THE LAND CEDED
BY VIRGINIA; THEREFORE, IT HAS FOR ITS SOUTHERN BOUNDARY THE OHIO
RIVER.  SEE 3 STAT. 289(1816), AND 3 STAT 399(1816).  THUS, A
DETERMINATION OF THE BOUNDARY BETWEEN THE STATES OF INDIANA AND
KENTUCKY WOULD CONTROL THE DETERMINATION OF THE BOUNDARY BETWEEN THE
STATES OF OHIO AND KENTUCKY.  BRIEF IN SUPPORT OF MOTION FOR LEAVE TO
FILE COMPLAINT 10. 

/10/  THE SITUATION, OF COURSE, IS OTHERWISE WHEN THE STATES'
BOUNDARY DISPUTE HAS BEEN OPEN, CONTINUOUS AND OF LONG STANDING.  SEE,
FOR EXAMPLE, NEW JERSEY V. DELAWARE, 291 U.S. 361, 376-377(1934);
OKLAHOMA V. TEXAS, 272 U.S. 21, 46-47(1926); ARKANSAS V. TENNESSEE, 246
U.S. 158, 172(1918). 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE STATE OF OHIO INSTITUTED THIS ORIGINAL ACTION TO LOCATE THE
BOUNDARY BETWEEN IT AND THE COMMONWEALTH OF KENTUCKY ON THE OHIO
RIVER.  THE INITIAL COMPLAINT RECOGNIZED KENTUCKY'S NORTHERN BOUNDARY
AS FOLLOWING "THE LOW WATER MARK ON THE NORTHERLY SIDE OF THE OHIO
RIVER AS IT EXISTED IN THE YEAR 1792,"  /1/  BUT ASSERTED THAT
SUBSEQUENT EVENTS HAD ALTERED THE LOCATION OF THE LOW-WATER MARK. 
TODAY THE COURT DENIES OHIO'S REQUEST THAT IT BE PERMITTED TO AMEND ITS
COMPLAINT TO PLEAD AN ALTERNATIVE BOUNDARY THEORY:  THAT THE TRUE
BOUNDARY BETWEEN THE STATES IS THE MIDDLE OF THE OHIO RIVER.  /2/ 

BASIC CONCEPTS OF PLEADING PRECLUDE DETERMINATION OF FACTUAL ISSUES
IN TESTING THE SUFFICIENCY OF A CLAIM.  /3/  THE APPROPRIATE QUESTION
FOR THE COURT AT THIS STAGE OF THE PROCEEDINGS, THEREFORE, IS WHETHER
IF THE FACTS AS STATED BY OHIO ARE TRUE, A VALID LEGAL ISSUE IS
TENDERED.  OHIO ASSERTS THAT VIRGINIA, KENTUCKY'S PREDECESSOR IN TITLE,
NEVER HELD OWNERSHIP RIGHTS TO BOTH BANKS OF THE OHIO RIVER AND THAT,
ACCORDINGLY, KENTUCKY'S CURRENT CLAIM TO LAND UNDERLYING THE NORTHERN
SIDE OF THE OHIO RIVER IS INVALID.  /4/  THE QUESTION BEFORE US IS
EQUIVALENT TO THAT POSED BY A DEMURRER.  THE MAJORITY'S CONCLUSION OF
INSUFFICIENCY IS, THEREFORE, NOT SUSTAINABLE. 

THE COURT'S DECISION IS A DETERMINATION UPON THE MERITS OF OHIO'S
PROFFERED ALLEGATIONS AND SHOULD BE MADE ONLY AFTER ALL THE EVIDENCE IS
BEFORE IT.  THE MASTER CONCLUDES, AND THE COURT AGREES, THAT OHIO HAS
ACQUIESCED TO KENTUCKY'S OWNERSHIP OF THE NORTHERN HALF OF THE OHIO
RIVER AS ESTABLISHED BY ADJUDICATIONS IN THIS COURT.  ALTHOUGH I FIND
SUCH CONSIDERATION OF THE MERITS TO BE PREMATURE, THE COURT'S REASONING
PROMPTS ME TO REVIEW THE CASE LAW UPON WHICH ESTOPPEL IS URGED. 

THE OHIO RIVER SERVES AS THE BOUNDARY BETWEEN THE STATES OF KENTUCKY
AND INDIANA AS WELL AS THE BOUNDARY BETWEEN THE PARTIES TO THIS SUIT,
KENTUCKY AND OHIO.  DURING THE 19TH CENTURY, THIS COURT DEALT WITH THE
NATURE OF THE KENTUCKY-INDIANA BOUNDARY IN TWO CASES.  HANDLY'S LESSEE
V. ANTHONY, 5 WHEAT.  374(1820), AND INDIANA V. KENTUCKY, 136 U.S.
479(1890).  LATER CASES DEALT WITH ISSUES THAT TURNED UPON THE BOUNDARY
DETERMINATION OF HANDLY'S LESSEE.  /5/  BASED UPON A HISTORICAL
ANALYSIS THAT OHIO HERE CONTESTS, THE COURT HELD IN THE HANDLY CASE
THAT THE KENTUCKY-INDIANA BOUNDARY COINCIDES WITH THE NORTHERN LOW
WATER MARK OF THE OHIO RIVER.  /6/  OHIO, OF COURSE, WAS NOT INVOLVED
IN THAT LITIGATION.  YET, THE MASTER'S RECOMMENDATION THAT IS NOW
ADOPTED WOULD BIND OHIO TODAY TO A DETERMINATION MADE IN 1820 IN A CASE
TO WHICH IT WAS NOT A PARTY.  AND, SINCE THE DOCTRINE OF RES JUDICATA
DOES NOT REACH SO FAR, RELIANCE IS PLACED UPON AN ESTOPPEL THEORY. 
SIMPLY STATED, KENTUCKY CONTENDS THAT OHIO HAS LOST WHATEVER RIGHTS IT
MAY ONCE HAVE HAD TO CHALLENGE THE KENTUCKY CLAIM TO LAND UNDERLYING
THE NORTHERN HALF OF THE OHIO RIVER BY FAILING TO OBJECT EARLIER AND BY
RECOGNIZING THE BOUNDARY RATIONALE THAT WAS APPLIED TO INDIANA IN CASES
TRIED IN OHIO COURTS SINCE 1820.  OHIO DISPUTES THE SUGGESTION. 

FIRST, OHIO NOTES THAT THE ARGUMENT IT WISHES TO PRESENT TO
SUBSTANTIATE A CLAIM TO THE CENTER OF THE RIVER HAS NOT BEEN CONSIDERED
BY THIS COURT.  THE EARLY CASES TURNED INSTEAD ON THE ASSUMPTION THAT
VIRGINIA'S PRIOR TITLE, UPON WHICH KENTUCKY'S CLAIMS ARE PREDICATED,
WAS VALID AS TO THE LAND INVOLVED.  /7/  OHIO ADDITIONALLY POINTS OUT
THAT THE THREE OHIO CASES PROFFERED AS EVIDENCE OF OHIO'S RECOGNITION
OF KENTUCKY'S CLAIM TO THE NORTHERN HALF OF THE RIVER /8/  CONCERNED
PRIVATE DISPUTES THAT HINGED UPON LOCATION OF THE RIVER'S EDGE, RATHER
THAN A DETERMINATION AS TO THE BOUNDARY BETWEEN THE STATES.  THAT THE
FURTHER DETERMINATION WAS NOT REQUIRED IS MADE CLEAR BY THE LANGUAGE OF
THOSE CASES.  /9/  THE MOST RECENT OF THE THREE, INDEED, STATES QUITE
EXPLICITLY: 

     "IT DOES NOT BECOME NECESSARY, IN THIS CASE, TO DETERMINE

  WHETHER THE MIDDLE OF THE OHIO RIVER . . . DOES OR DOES NOT

  CONSTITUTE THE BOUNDARY LINE BETWEEN THE STATES OF VIRGINIA AND

  OHIO.  FOR ALL THE PURPOSES OF THIS CASE, IT MAY BE ASSUMED THAT

VIRGINIA WAS THE ORIGINAL, UNDISPUTED OWNER OF THE TERRITORY ON

  BOTH SIDES OF THE RIVER, AND STILL RETAINS ALL THAT SHE DID NOT

  PART WITH BY HER DEED OF CESSION IN 1784."  /10/

OHIO NOW WISHES TO QUESTION PRECISELY THAT ASSUMPTION.  IN PREMATURELY
JUDGING THE ISSUES AND PRETERMITTING BRIEFING AND ARGUMENT OF OHIO'S
ATTACK ON THE VALIDITY OF VIRGINIA'S TITLE, THE COURT DOES DISSERVICE
BOTH TO THE ADJUDICATION OF THIS DISPUTE AND TO THE PROCEDURAL CONTOURS
OF ORIGINAL ACTIONS.  I WOULD ALLOW OHIO TO AMEND ITS COMPLAINT SO THAT
THE MERITS MIGHT BE REACHED IN DUE COURSE. 

/1/  COMPLAINT PARA. 6. 

/2/  AMENDED COMPLAINT PARAS. 1-3. 

/3/  F. JAMES, CIVIL PROCEDURE SEC. 4.1, P. 127; CONLEY V. GIBSON,
355 U.S. 41, 45-46. 

/4/  VIRGINIA'S CLAIM OF TITLE RESTS UPON THE CHARTER GRANTED BY KING
JAMES I TO THE LONDON COMPANY IN 1609.  OHIO ARGUES THAT LATER EVENTS,
INCLUDING THE REVOCATION OF THE CHARTER IN 1624 WHEN VIRGINIA BECAME A
CROWN COLONY, 1 J.MARSHALL, THE LIFE OF GEORGE WASHINGTON 69; 2
W.HENING'S STAT.AT LARGE 525-526; 1 LAWS OF THE UNITED STATES 465(B. &
D. ED. 1815)(HEREINAFTER LAWS), AND THE CEDING BY THE FRENCH TO THE
BRITISH OF THE EASTERN MISSISSIPPI VALLEY NORTH OF THE OHIO RIVER UNDER
THE TREATY OF PARIS IN 1763, 1 LAWS 441-442; A. SHORTT & A. DOUGHTY,
DOCUMENTS RELATING TO THE CONSTITUTIONAL HISTORY OF CANADA, 1759-1791,
PP. 113, 116, SHARPLY CURTAINED VIRGINIA'S REACH AND THAT THE MIDDLE OF
THE RIVER WAS INTENDED AS THE BOUNDARY BETWEEN OLD AND NEW STATES BY
THE UNITED STATES FOLLOWING THE REVOLUTION.  IT SEEKS TO SUBSTANTIATE
THIS FINAL POINT BY REFERENCES TO VARIOUS LAWS THAT PRESCRIBE THE
BOUNDARIES OF NEW STATES, 1 LAWS 475, 480, PROVIDE FOR NAVIGATIONAL
RIGHTS, ID., AT 479-480, AND SPEAK IN GENERAL TERMS OF VIRGINIA,
KENTUCKY, AND TENNESSEE AS THE LANDS SOUTH, OR SOUTH AND EAST, OF THE
OHIO RIVER, AND OF OHIO, INDIANA, AND ILLINOIS AS THE LANDS TO THE
NORTH, OR THE NORTH AND WEST, 2 LAWS 14, 104, 138, 179, 311, 421, 533;
3 LAWS 367, 385, 396, 596, 612. 

/5/  HENDERSON BRIDGE CO. V. HENDERSON CITY, 173 U.S. 592(1899);
WEDDING V. MEYLER, 192 U.S. 573(1904); NICOULIN V. O'BRIEN, 248 U.S.
113(1918). 

/6/  HANDLY'S LESSEE V. ANTHONY, 5 WHEAT, 374, 377, 379. 

/7/  SEE IBID.; INDIANA V. KENTUCKY, 136 U.S. 479, 503-504. 

/8/  LESSEE OF MCCULLOCH V. ATEN, 2 OHIO 307(1826); LESSEE OF
BLANCHARD V. PORTER, 11 OHIO 138(1841); BOOTH V. SHEPHERD, 8 OHIO ST.
243(1858). 

/9/  2 OHIO, AT 310 (DISCUSSING ONLY OWNERSHIP OF THE LAND ABOVE THE
WATER LINE BUT BELOW THE BANK); 11 OHIO, AT 139-140 ("THE DEFENDANTS
DEED CONVEYS THE SOIL TO THE TOP OF THE RIVER BANK, AND RESERVES THE
'BREAK AND SLOPE,' BETWEEN THAT POINT AND THE RIVER"). 

/10/  8 OHIO ST.,AT 245-146 (NOTING THAT "IN THE CASE OF HANDLY'S
LESSEE V. ANTHONY, THE SUPREME COURT OF THE UNITED STATES, PROCEEDED)
ON THE ASSUMPTION THAT VIRGINIA WAS THE ORIGINAL PROPRIETOR OF BOTH
SIDES OF THE RIVER . . . "). 

JOSEPH M. HOWARD ARGUED THE CAUSE FOR PLAINTIFF ON EXCEPTIONS TO THE
REPORT OF THE SPECIAL MASTER.  WITH HIM ON THE BRIEF WAS WILLIAM J.
BROWN, ATTORNEY GENERAL OF OHIO. 

JOHN M. FAMULARO, ASSISTANT ATTORNEY GENERAL OF KENTUCKY, ARGUED THE
CAUSE FOR DEFENDANT PRO HAC VICE IN ANSWER TO EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER.  WITH HIM ON THE BRIEF WERE ED W. HANCOCK,
ATTORNEY GENERAL, AND JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL. 
..END :
























ORTWEIN V. SCHWAB, 410 U.S. 656 


       ORTWEIN ET AL. V. SCHWAB ET AL.

        APPEAL FROM THE SUPREME COURT OF OREGON

        NO. 72-5431.  DECIDED MARCH 5, 1973 


APPELLANTS CHALLENGE THE CONSTITUTIONALITY OF A $25 FILING FEE, WHICH
THEY WERE ALLEGEDLY UNABLE TO PAY, REQUIRED TO BE PAID IN THE STATE
APPELLATE COURT WHERE THEY SOUGHT REVIEW OF AGENCY DETERMINATIONS
RESULTING IN THEIR RECEIVING REDUCED WELFARE PAYMENTS.  HELD:
APPELLANTS WERE NOT DEPRIVED OF DUE PROCESS, SINCE THE INCREASE IN
WELFARE PAYMENTS SOUGHT BY THEM HAS LESS CONSTITUTIONAL SIGNIFICANCE
THAN THE INTEREST OF APPELLANTS IN BODDIE V. CONNECTICUT, 401 U.S. 371,
AND SINCE EVIDENTIARY HEARINGS PROVIDED A PROCEDURE, NOT CONDITIONED ON
PAYMENT OF ANY FEE, THROUGH WHICH APPELLANTS WERE ABLE TO SEEK
REDRESS.  UNITED STATES V. KRAS, 409 U.S. 434.  NOR IS THE FILING-FEE
REQUIREMENT VIOLATIVE OF EQUAL PROTECTION, SINCE THE APPLICABLE
STANDARD IN THE AREA OF SOCIAL AND ECONOMIC REGULATION WHEN A SUSPECT
CLASSIFICATION IS NOT PRESENT IS RATIONAL JUSTIFICATION AND HERE THE
REQUIREMENT OF RATIONALITY IS MET. 

262 ORE.  375, 498 P.2D 757, AFFIRMED. 

PER CURIAM. 

APPELLANTS CONTEND THAT OREGON'S $25 APPELLATE COURT FILING FEE, AS
APPLIED IN THIS CASE, VIOLATES THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMENDMENT AND, ALSO, THE FIRST AMENDMENT AS
INCORPORATED INTO THE FOURTEENTH.  THE SUPREME COURT OF OREGON DECIDED
OTHERWISE.  262 ORE.  375, 498 P.2D 757(1972).  WE AFFIRM THAT DECISION
FOR REASONS WE FOUND PERSUASIVE IN UNITED STATES V. KRAS, 409 U.S.
434(1973). 

APPELLANT ORTWEIN (WHO ALSO WAS RECEIVING SOCIAL SECURITY AND AN
URBAN RENEWAL ALLOWANCE) SUSTAINED A REDUCTION OF APPROXIMATELY $39 PER
MONTH IN HIS OREGON OLD-AGE ASSISTANCE WHEN HIS COUNTY WELFARE AGENCY
DETERMINED THAT HE SHARED SHELTER AND EXPENSES WITH ANOTHER PERSON IN A
MANNER THAT RELIEVED HIM OF SOME OF THE COSTS UPON WHICH HIS ORIGINAL
AWARD HAD BEEN BASED.  ORTWEIN APPEALED TO THE OREGON PUBLIC WELFARE
DIVISION.  THE DIVISION CONDUCTED A HEARING AND UPHELD THE COUNTY
AGENCY'S DECISION.  /1/ 

APPELLANT FAUBION CLAIMED THAT CERTAIN EXPENSES RELATED TO WORK
TRAINING UNDER A FEDERAL PROGRAM SHOULD HAVE BEEN DEDUCTED IN
CALCULATING HER INCOME.  /2/  MOST OF THESE DEDUCTIONS WERE DISALLOWED,
AFTER HEARING, BY THE PUBLIC WELFARE DIVISION.  THE DISALLOWANCE
RESULTED IN SMALLER WELFARE PAYMENTS TO FAUBION OVER A FIVE-MONTH
PERIOD. 

JUDICIAL REVIEW OF THESE AGENCY DECISIONS IS AUTHORIZED UNDER STATE
LAW.  ORE.  REV. STAT. SEC. 183.480(1971).  IN CASES THAT ARE
CONTESTED, AS THESE WERE, JURISDICTION FOR JUDICIAL REVIEW IS CONFERRED
UPON THE OREGON COURT OF APPEALS.  SEC. 183.480(2).  ALL APPELLANTS IN
CIVIL CASES IN OREGON PAY A $25 FILING FEE IN APPELLATE COURTS.  SECS.
21.010 AND 21.040(1971).  EACH OF THE PRESENT APPELLANTS ALLEGED THAT
HE WAS AN INDIGENT UNABLE TO PAY THE FILING FEE; EACH MOVED TO PROCEED
IN FORMA PAUPERIS IN THE OREGON COURT OF APPEALS.  THE MOTIONS WERE
DENIED WITHOUT OPINIONS.  APPELLANTS THEN PETITIONED THE SUPREME COURT
OF OREGON FOR AN ALTERNATIVE WRIT OF MANDAMUS ORDERING THE COURT OF
APPEALS TO ACCEPT APPELLANTS' CASES WITHOUT PAYMENT OF FEES.  THE
SUPREME COURT OF OREGON REQUESTED SUPPLEMENTAL BRIEFS AND THEN ISSUED
ITS OPINION DENYING THE PETITION FOR MANDAMUS.  262 ORE.  375, 498 P.2D
757(1972).  FROM THIS DENIAL THE PRESENT APPEAL IS TAKEN. 

        I 

RELYING ON THIS COURT'S OPINION IN BODDIE V. CONNECTICUT, 401 U.S.
371(1971), AND ON THE REMAND-FOR-RECONSIDERATION ORDER IN FREDERICK V.
SCHWARTZ, 402 U.S. 937(1971), /3/  APPELLANTS CONTEND THAT THE OREGON
APPELLATE FILING FEE, WHEN APPLIED TO INDIGENTS SEEKING TO APPEAL AN
ADVERSE WELFARE DECISION, VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  IN UNITED STATES V. KRAS, 409 U.S. 434(1973),
THIS COURT UPHELD STATUTORILY IMPOSED BANKRUPTCY FILING FEES AGAINST A
CONSTITUTIONAL CHALLENGE BASED ON BODDIE.  WE EMPHASIZED THE SPECIAL
NATURE OF THE MARITAL RELATIONSHIP AND ITS CONCOMITANT ASSOCIATIONAL
INTERESTS, AND NOTED THAT THEY WERE NOT AFFECTED IN THAT CASE AND THAT
THE OBJECTIVE SOUGHT BY APPELLANT KRAS COULD BE OBTAINED THROUGH
ALTERNATIVE MEANS THAT DID NOT REQUIRE A FEE.  BODDIE, OF COURSE, WAS
NOT CONCERNED WITH POST-HEARING REVIEW.  WE NOW CONCLUDE THAT KRAS,
RATHER THAN BODDIE, GOVERNS THE PRESENT APPEAL, AND WE EMPHASIZE THAT
FREDERICK WAS REMANDED, AND NOT SUMMARILY REVERSED. 

A. IN KRAS, WE OBSERVED THAT ONE'S INTEREST IN A BANKRUPTCY
DISCHARGE "DOES NOT RISE TO THE SAME CONSTITUTIONAL LEVEL" AS ONE'S
INABILITY TO DISSOLVE HIS MARRIAGE EXCEPT THROUGH THE COURTS.  409
U.S., AT 445.  IN THIS CASE, APPELLANTS SEEK INCREASED WELFARE
PAYMENTS.  THIS INTEREST, LIKE THAT OF KRAS, HAS FAR LESS
CONSTITUTIONAL SIGNIFICANCE THAN THE INTEREST OF THE BODDIE
APPELLANTS.  COMPARE DANDRIDGE V. WILLIAMS, 397 U.S. 471(1970), AND
RICHARDSON V. BELCHER, 404 U.S. 78(1971), WITH LOVING V. VIRGINIA, 388
U.S. 1(1967); SKINNER V. OKLAHOMA, 316 U.S. 535(1942); GRISWOLD V.
CONNECTICUT, 381 U.S. 479(1965), AND EISENSTADT V. BAIRD, 405 U.S.
438(1972).  EACH OF THE PRESENT APPELLANTS HAS RECEIVED AN AGENCY
HEARING AT WHICH IT WAS DETERMINED THAT THE MINIMUM LEVEL OF PAYMENTS
AUTHORIZED BY LAW WAS BEING PROVIDED.  AS IN KRAS, WE SEE "NO
FUNDAMENTAL INTEREST THAT IS GAINED OR LOST DEPENDING ON THE
AVAILABILITY" OF THE RELIEF SOUGHT BY APPELLANTS.  409 U.S., AT 445. 

B. IN KRAS, THE COURT ALSO STRESSED THE EXISTENCE OF ALTERNATIVES,
NOT CONDITIONED ON THE PAYMENT OF THE FEES, TO THE JUDICIAL REMEDY. 
ID., AT 446.  THE COURT HAS HELD THAT PROCEDURAL DUE PROCESS REQUIRES
THAT A WELFARE RECIPIENT BE GIVEN A PRETERMINATION EVIDENTIARY
HEARING.  GOLDBERG V. KELLY, 397 U.S. 254, 264, 266-271(1970).  THESE
APPELLANTS HAVE HAD HEARINGS.  /4/  THE HEARINGS PROVIDE A PROCEDURE,
NOT CONDITIONED ON PAYMENT OF ANY FEE, THROUGH WHICH APPELLANTS HAVE
BEEN ABLE TO SEEK REDRESS.  THIS COURT HAS LONG RECOGNIZED THAT, EVEN
IN CRIMINAL CASES, DUE PROCESS DOES NOT REQUIRE A STATE TO PROVIDE AN
APPELLATE SYSTEM.  MCKANE V. DURSTON, 153 U.S. 684, 687(1894); SEE
GRIFFIN V. ILLINOIS, 351 U.S. 12, 18(1956); DISTRICT OF COLUMBIA V.
CLAWANS, 300 U.S. 617, 627(1937); LINDSEY V. NORMET, 405 U.S. 56,
77(1972).  UNDER THE FACTS OF THIS CASE, APPELLANTS WERE NOT DENIED DUE
PROCESS.  /5/

        II 

APPELLANTS URGE THAT THE FILING FEE VIOLATES THE EQUAL PROTECTION
CLAUSE BY UNCONSTITUTIONALLY DISCRIMINATING AGAINST THE POOR.  AS IN
KRAS, THIS LITIGATION, WHICH DEALS WITH WELFARE PAYMENTS, "IS IN THE
AREA OF ECONOMICS AND SOCIAL WELFARE."  409 U.S., AT 446; SEE DANDRIDGE
V. WILLIAMS, 397 U.S., AT 485-486.  NO SUSPECT CLASSIFICATION, SUCH AS
RACE, NATIONALITY, OR ALIENAGE, IS PRESENT.  SEE GRAHAM V. RICHARDSON,
403 U.S. 365, 372(1971).  THE APPLICABLE STANDARD IS THAT OF RATIONAL
JUSTIFICATION.  UNITED STATES V. KRAS, SUPRA. 

THE PURPOSE OF THE FILING FEE, AS WITH THE BANKRUPTCY FEES IN KRAS,
IS APPARENT.  THE OREGON COURT SYSTEM INCURS OPERATING COSTS, AND THE
FEE PRODUCES SOME SMALL REVENUE TO ASSIST IN OFFSETTING THOSE
EXPENSES.  CF. ORE.  REV.  STAT. SEC. 21.590(1971).  APPELLANTS DO NOT
CONTEND THAT THE FEE IS DISPROPORTIONATE OR THAT IT IS NOT AN EFFECTIVE
MEANS TO ACCOMPLISH THE STATE'S GOAL.  THE REQUIREMENT OF RATIONALITY
IS MET. 

        III 

RELYING ON LINDSEY V. NORMET, SUPRA, APPELLANTS CONTEND THAT THE FEE
IS NOT REQUIRED OF CERTAIN CLASSES OF LITIGANTS, AND THAT AN APPEAL IS
THUS "CAPRICIOUSLY AND ARBITRARILY DENIED" TO OTHER APPELLANTS, SUCH AS
THEMSELVES, ALSO IN VIOLATION OF THE EQUAL PROTECTION CLAUSE.  SEE 405
U.S., AT 77.  THEY ASSERT THAT CRIMINAL APPEALS, HABEAS CORPUS
PETITIONS FROM STATE INSTITUTIONS OR CIVIL COMMITMENT PROCEEDINGS, AND
APPEALS FROM TERMINATIONS OF PARENTAL RIGHTS MAY BE FILED IN FORMA
PAUPERIS IN THE OREGON COURT OF APPEALS.  JURISDICTIONAL STATEMENT 23. 
WE ARE NOT TOLD JUST WHY THESE FILINGS ARE PERMITTED, BUT THE OPINION
OF THE SUPREME COURT OF OREGON MAKES IT CLEAR THAT IN FORMA PAUPERIS
APPEALS ARE ALLOWED ONLY IF SUPERVENING LAW REQUIRES A RIGHT TO A FREE
APPEAL.  262 ORE., AT 384, 498 P.2D, AT 761-762. 

IF THE OREGON COURTS HAVE INTERPRETED THE APPLICABLE LAW TO GIVE
SPECIAL RIGHTS IN THE CRIMINAL AREA, IN CIVIL CASES THAT RESULT IN LOSS
OF LIBERTY, AND IN CASES TERMINATING PARENTAL RIGHTS, WE CANNOT SAY
THAT THIS CATEGORIZATION IS CAPRICIOUS OR ARBITRARY. 

              AFFIRMED. 

/1/  THE DIVISION FOUND THAT THE COUNTY AGENCY "ACTED WITHIN ITS
DISCRETION BY DETERMINING THAT THE CLAIMANT'S LIVING ARRANGEMENT
REPRESENTED A LIVING SITUATION IN WHICH SHELTER AND EXPENSES ARE
SHARED."  THE AGENCY'S ORDER EXPLAINED THAT THAT REDUCTION IN THE ROOM
AND BOARD ALLOWANCE WAS PROPER BECAUSE "(THE ELIGIBILITY OF RECIPIENTS
WHO SHARE SHELTER WITH NON-RECIPIENTS, AND DO NOT PAY FOR ROOM AND
BOARD, SHALL BE DETERMINED ON A SHARE/FRACTION BASIS AT (PUBLIC WELFARE
DIVISION) STANDARDS."  RECORD 9.  IN HIS PETITION FOR REVIEW, ORTWEIN
CONTENDED THAT THE ORDER WAS NOT SUPPORTED BY "RELIABLE, PROBATIVE AND
SUBSTANTIAL EVIDENCE IN THE WHOLE RECORD." 

/2/  FAUBION RECEIVED AN INCENTIVE TRAINING ALLOWANCE OF $120 PER
MONTH FOR APPROXIMATELY FIVE MONTHS FROM A PROGRAM UNDER THE MANPOWER
DEVELOPMENT AND TRAINING ACT OF 1962, AS AMENDED, 76 STAT. 23, 42
U.S.C. 2571-2574.  RECORD 12.  FAUBION ALSO WAS RECEIVING OVER $210 PER
MONTH THROUGH A STATE-ADMINISTERED AFDC PROGRAM.  JURISDICTIONAL
STATEMENT 4; RECORD 11.  STATES, IN MAKING THEIR INCOME CALCULATIONS
UNDER AFDC, DEDUCT FROM GROSS INCOME ALL EXPENSES "REASONABLY
ATTRIBUTABLE" TO THE EARNING OF THE INCOME.  42 U.S.C. 602(A)(7); 45
CFR 233.20(A)(3)(IV)(SEPT.  1972).  FAUBION CLAIMED THAT SHE HAD WORK
TRAINING EXPENSES OF $20 PER MONTH FOR ESSENTIAL CLOTHING AND GROOMING,
OF $20 PER MONTH FOR LUNCHES ON THE JOB, OF $30 PER MONTH FOR
CONVENIENCE FOODS FOR FAMILY USE MADE NECESSARY BECAUSE OF HER JOB, OF
$5 PER MONTH FOR OIL, TUNE-UPS AND REPAIRS, AND OF $5 PER MONTH FOR
MISCELLANEOUS SCHOOL SUPPLIES.  RECORD 13.  ALTHOUGH THE DIVISION
ALLOWED SOME DEDUCTIONS, IT DETERMINED THAT THE REMAINING EXPENSES WERE
NOT "REASONABLY ATTRIBUTABLE" TO THE TRAINING PROGRAM.  RECORD 12.  ON
APPEAL, FAUBION SOUGHT TO CHALLENGE THIS FINDING. 

/3/  SEE ALSO HUFFMAN V. BOERSEN, 406 U.S. 337(1972). 

/4/  THESE EVIDENTIARY HEARINGS, OF COURSE, MUST MEET THE MINIMAL
REQUIREMENTS OF DUE PROCESS.  GOLDBERG V. KELLY, 397 U.S. 254, 266
271(1970).  APPELLANTS HAVE ALLEGED THAT THE HEARINGS WERE DEFICIENT IN
SEVERAL WAYS, JURISDICTIONAL STATEMENT 9-10, BUT NEITHER THE RECORD NOR
THE OPINION OF THE OREGON COURT PROVIDES SUPPORT FOR THESE
CONTENTIONS. 

/5/  APPELLANTS ALSO CLAIM A VIOLATION OF THEIR FIRST AMENDMENT
RIGHT TO PETITION FOR REDRESS.  OUR DISCUSSION OF THE DUE PROCESS
CLAUSE, HOWEVER, DEMONSTRATES THAT APPELLANTS' RIGHTS UNDER THE FIRST
AMENDMENT HAVE BEEN FULLY SATISFIED. 

MR. JUSTICE STEWART DISSENTS, BELIEVING THAT THE DOCTRINE OF BODDIE
V. CONNECTICUT, 401 U.S. 371(1971), REQUIRES REVERSAL OF THIS
JUDGMENT.  SEE UNITED STATES V. KRAS, 409 U.S. 434,
451(1973)(DISSENTING OPINION).  HE IS CONVINCED, HOWEVER, THAT THE
COURT IS SO RESOLUTELY FIRM IN ITS CONTRARY VIEW THAT IT WOULD SERVE NO
USEFUL PURPOSE TO SET THIS CASE FOR ORAL ARGUMENT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE MAJORITY TODAY BROADENS AND FORTIFIES THE "PRIVATE PRESERVE FOR
THE AFFLUENT."  MELTZER V. C. BUCK LE CRAW & CO., 402 U.S. 954, 961
(OPINION OF DOUGLAS, J.).  THE COURT UPHOLDS A SCHEME OF JUDICIAL
REVIEW WHEREBY JUSTICE REMAINS A LUXURY FOR THE WEALTHY. 

    I 

APPELLANTS, WELFARE RECIPIENTS WHO BENEFITS WERE REDUCED AFTER
ADVERSE DETERMINATIONS BY THE OREGON PUBLIC WELFARE DIVISION, WERE
DENIED ACCESS TO THE OREGON COURTS FOR REVIEW OF THOSE DECISIONS SOLELY
ON THE GROUNDS THAT THEY WERE UNABLE TO PAY A $25 FILING FEE.  JUDICIAL
REVIEW OF ADMINISTRATIVE DECISIONS IS NOT OTHERWISE AVAILABLE UNDER
OREGON LAW.  I CONTINUE TO BELIEVE THAT THIS INVIDIOUS DISCRIMINATION
AGAINST THE POVERTY-STRICKEN-- A CLASSIFICATION BASED UPON WEALTH-- IS
PROSCRIBED BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
MELTZER, SUPRA; BODDIE V. CONNECTICUT, 401 U.S. 371, 383 (DOUGLAS, J.,
CONCURRING IN RESULT); CF. UNITED STATES V. KRAS, 409 U.S. 434, 457
(OPINION OF DOUGLAS AND BRENNAN, JJ.). 

THERE IS AN ADDITIONAL CONSIDERATION RELEVANT HERE.  THE MAJORITY
PROPERLY NOTES THAT "(THIS COURT HAS LONG RECOGNIZED THAT, EVEN IN
CRIMINAL CASES, DUE PROCESS DOES NOT REQUIRE A STATE TO PROVIDE AN
APPELLATE SYSTEM."  WE ARE CONCERNED IN THIS CASE NOT WITH APPELLATE
REVIEW OF A JUDICIAL DETERMINATION, BUT WITH INITIAL ACCESS TO THE
COURTS FOR REVIEW OF AN ADVERSE ADMINISTRATIVE DETERMINATION.  BY
ANALOGIZING THESE TWO SITUATIONS, THE MAJORITY SUB SILENTIO ANSWERS A
QUESTION THIS COURT STUDIOUSLY HAS AVOIDED-- WHETHER THERE IS A DUE
PROCESS RIGHT TO JUDICIAL REVIEW.  SEE 4 K.DAVIS, ADMINISTRATIVE LAW
TREATISE 28.18.  ACCESS TO THE COURTS BEFORE A PERSON IS DEPRIVED OF
VALUABLE INTERESTS, AT LEAST WITH RESPECT TO QUESTIONS OF LAW, SEEMS TO
ME TO BE THE ESSENCE OF DUE PROCESS.  CF. LINDSEY V. NORMET, 405 U.S.
56, 84 (DOUGLAS, J., DISSENTING IN PART).  WE HAVE RECOGNIZED THAT
TOKEN ACCESS CANNOT SATISFY THE REQUIREMENTS OF DUE PROCESS.  SEE,
E.G., MULLANE V. CENTRAL HANOVER TRUST CO., 339 U.S. 306.  CERTAINLY,
NO ACCESS AT ALL CANNOT STAND IN BETTER STEAD.  APPELLANT ORTWEIN
CONTENDS THAT THE ORDER OF THE PUBLIC WELFARE DIVISION IS NOT SUPPORTED
BY SUBSTANTIAL EVIDENCE; APPELLANT FAUBION CONTENDS THAT THE ORDER
APPLICABLE TO HER CONFLICTS WITH FEDERAL PROVISIONS.  MOREOVER, EACH
CONTENDS THAT THE ADMINISTRATIVE HEARING WAS DEFICIENT UNDER GOLDBERG
V. KELLY, 397 U.S. 254, BECAUSE QUESTIONS OF LAW WERE NOT CONSIDERED. 
THE MAJORITY AFFIRMS THE JUDGMENT WITHOUT DISCUSSING ITS BEARING ON
APPELLANTS' CONTENTION THAT THE OREGON SCHEME OF JUDICIAL REVIEW
DISCRIMINATES AGAINST THE POOR WITH RESPECT TO AN EXERCISE OF A
FUNDAMENTAL RIGHT. 

ACCORDINGLY, I CANNOT AGREE THAT A "RATIONAL JUSTIFICATION " WILL
SUPPORT THE OREGON STATUTE AS IT AFFECTS THE POOR.  THE PRIMARY
JUSTIFICATION BY THE STATE AND FIXED UPON BY THE MAJORITY IS THE
STATE'S INTEREST IN OFFSETTING THE EXPENSES OF ITS COURT SYSTEM.  THIS
INTEREST FALLS FAR SHORT OF THE "COMPELLING INTEREST" REQUIRED TO
JUSTIFY A SUSPECT CLASSIFICATION OR DISCRIMINATION WHICH INFRINGES ON
FUNDAMENTAL RIGHTS.  SEE BODDIE V. CONNECTICUT, SUPRA, AT 382; SHAPIRO
V. THOMPSON, 394 U.S. 618, 633.              II 

THE MAJORITY AFFIRMS THE JUDGMENT BELOW WITHOUT THE BENEFIT OF
BRIEFS OR ARGUMENT, RELYING ON UNITED STATES V. KRAS, SUPRA.  ALTHOUGH
I DID NOT JOIN THE COURTS OPINION IN BODDIE V. CONNECTICUT, SUPRA, I AM
COMPELLED TO COMMENT ON THE PROPRIETY OF DISPOSING OF THIS CASE
SUMMARILY IN VIEW OF THE DECISION IN THAT CASE.  HOWEVER ONE VIEWS THE
MERITS OF KRAS, IT SEEMS TO ME THAT THIS CASE FALLS FAR CLOSER TO
BODDIE THAN KRAS. 

THE MAJORITY DISTINGUISHED KRAS FROM BODDIE ON THREE GROUNDS.  IT IS
ONLY PROPER THAT THIS CASE BE COMPARED ON THE SAME BASIS. 

(1) THE MAJORITY IN KRAS CONCLUDED THAT A DEBTOR'S DESIRE TO OBTAIN
A DISCHARGE IN BANKRUPTCY DOES NOT IMPLICATE A "FUNDAMENTAL INTEREST." 
WHILE IT IS TRUE THAT OUR DECISIONS ATTACH LESS CONSTITUTIONAL
SIGNIFICANCE TO WELFARE PAYMENTS THAN THE INTERESTS OF THE BODDIE
APPELLANTS, WE HAVE NEVER DECIDED THAT THERE IS NO CONSTITUTIONAL RIGHT
TO JUDICIAL REVIEW OF AN ADVERSE ADMINISTRATIVE DETERMINATION.  THE
MAJORITY ALSO NOTED IN KRAS THAT "(GAINING OR NOT GAINING A DISCHARGE
(IN BANKRUPTCY) WILL EFFECT NO CHANGE WITH RESPECT TO BASIC
NECESSITIES."  409 U.S., AT 445.  IT IS CLEAR IN THIS CASE, HOWEVER,
THAT APPELLANTS SUFFERED AN INROAD ON THEIR ABILITY TO SUBSIST. 

(2) UNLIKE KRAS, WHO HAD A THEORETICAL OPPORTUNITY TO SEEK RELIEF
FROM HIS CREDITORS IN A NONJUDICIAL ACCOMMODATION, APPELLANTS' ONLY
AVENUE OF RELIEF LIES IN THE COURTS. 

(3) UNLIKE KRAS, WHO WAS AFFORDED THE OPPORTUNITY TO PAY THE
BANKRUPTCY FILING FEE IN INSTALLMENTS OVER SIX MONTHS, APPELLANTS MUST
FILE THEIR FEE IN A LUMP SUM. 

MR. JUSTICE BRENNAN, DISSENTING. 

ALTHOUGH I AM IN SUBSTANTIAL AGREEMENT WITH MY BROTHERS DOUGLAS AND
MARSHALL THAT THIS CASE IS DISTINGUISHABLE FROM OUR RECENT DECISION IN
UNITED STATES V. KRAS, 409 U.S. 434(1973), I SEE NO REASON TO SET THIS
CASE FOR ARGUMENT IN LIGHT OF THE MAJORITY'S FIRMLY HELD VIEW THAT KRAS
IS CONTROLLING.  ON THE MERITS, I WOULD REVERSE FOR THE REASONS STATED
IN MY SEPARATE OPINION IN BODDIE V. CONNECTICUT, 401 U.S. 371,
386(1971) (CONCURRING IN PART).  SEE ALSO UNITED STATES V. KRAS, SUPRA,
AT 457 (OPINION OF DOUGLAS AND BRENNAN, JJ.). 

MR. JUSTICE MARSHALL, DISSENTING. 

I ADHERE TO MY DISSENTING OPINION IN UNITED STATES V. KRAS, 409 U.S.
434, 458(1973), AND WOULD REVERSE THE JUDGMENT ON THAT BASIS.  BUT EVEN
WERE I TO ACCEPT THE MAJORITY POSITION IN KRAS, THERE ARE STILL
IMPORTANT DIFFERENCES BETWEEN THAT CASE AND THIS ONE WHICH, IN MY
JUDGMENT, REQUIRE THAT THIS CASE BE SET FOR ARGUMENT. 

IN KRAS, THE MAJORITY CORRECTLY NOTED THAT "(THERE IS NO
CONSTITUTIONAL RIGHT TO OBTAIN A DISCHARGE OF ONE'S DEBTS IN
BANKRUPTCY."  ID., AT 446.  THEREFORE, THE ONLY ISSUE IN THE CASE WAS
WHETHER THE GOVERNMENT COULD, ON THE BASIS OF A DE FACTO WEALTH
CLASSIFICATION, LIMIT ACCESS TO A REMEDY WHICH IT COULD CONCEDEDLY DENY
ALTOGETHER. 

THE QUESTION HERE IS QUITE DIFFERENT.  APPELLANTS SEEK A JUDICIAL
REMEDY FOR THE ACTION OF AN ADMINISTRATIVE AGENCY WHICH DEPRIVED THEM
OF A PRE-EXISTING RIGHT.  AS MY BROTHER DOUGLAS DEMONSTRATES, IT IS AT
VERY LEAST DOUBTFUL THAT THE DUE PROCESS CLAUSE PERMITS A STATE TO
SHIELD AN ADMINISTRATIVE AGENCY FROM ALL JUDICIAL REVIEW WHEN THAT
AGENCY ACTS TO REVOKE A BENEFIT PREVIOUSLY GRANTED.  /1/  I SHARE THE
VIEW OF MR. JUSTICE BRANDEIS THAT "(THE SUPREMACY OF LAW DEMANDS THAT
THERE SHALL BE OPPORTUNITY TO HAVE SOME COURT DECIDE WHETHER AN
ERRONEOUS RULE OF LAW WAS APPLIED; AND WHETHER THE PROCEEDING IN WHICH
FACTS WERE ADJUDICATED WAS CONDUCTED REGULARLY.  ST. JOSEPH STOCK YARDS
CO. V. UNITED STATES 298 U.S. 38, 84(1936) (CONCURRING OPINION).  CF.
YAKUS V. UNITED STATES, 321 U.S. 414(1944); CROWELL V. BENSON, 285 U.S.
22(1932). 

THAT OPPORTUNITY WAS DENIED IN THIS CASE, AND IMPORTANT BENEFITS
WERE THEREBY TAKEN FROM APPELLANTS WITHOUT AFFORDING THEM A CHANCE TO
CONTEST THE LEGALITY OF THE TAKING IN A COURT OF LAW.  CF. FUENTES V.
SHEVIN, 407 U.S. 67(1972). 

THE EXTENT TO WHICH THE STATE MAY COMMIT TO ADMINISTRATIVE AGENCIES
THE UNREVIEWABLE AUTHORITY TO RESTRICT PRE-EXISTING RIGHTS IS ONE OF
THE GREAT QUESTIONS OF CONSTITUTIONAL LAW ABOUT WHICH COURTS AND
COMMENTATORS HAVE DEBATED FOR GENERATIONS.  SEE GENERALLY HART, THE
POWER OF CONGRESS TO LIMIT THE JURISDICTION OF FEDERAL COURTS:  AN
EXERCISE IN DIALECTIC, 66 HARV.L.REV.  1362(1953); 4 K.DAVIS,
ADMINISTRATIVE LAW TREATISE 28.18(1958).  BECAUSE I AM NOT READY TO
DECIDE THAT QUESTION SUMMARILY, SUB SILENTIO, AND WITHOUT THE BENEFIT
OF FULL BRIEFING AND ORAL ARGUMENT, I MUST DISSENT FROM THE COURT'S
DECISION. 

/6/  THE MAJORITY'S STATEMENT THAT "(THIS COURT HAS LONG RECOGNIZED
THAT, EVEN IN CRIMINAL CASES, DUE PROCESS DOES NOT REQUIRE A STATE TO
PROVIDE AN APPELLATE SYSTEM," ANTE, AT 660, IS THUS TRUE, BUT
IRRELEVANT AND MISLEADING.  THE CASES CITED BY THE MAJORITY ALL INVOLVE
EFFORTS TO SECURE APPELLATE REVIEW OF A DECISION BY A LOWER COURT. 
HERE, IN CONTRAST, NO COURT HAS EVER EXAMINED APPELLANTS' CLAIMS ON THE
MERITS.  APPELLANTS ASSERT ONLY THAT THEY MUST HAVE SOME ACCESS TO SOME
COURT TO CONTEST THE LEGALITY OF ADMINISTRATIVE ACTION ADVERSELY
AFFECTING THEM. 
..END :
























BRADEN V. 30TH JUDICIAL CIRCUIT COURT OF KY., 410 U.S. 484 


       BRADEN V. 30TH JUDICIAL CIRCUIT COURT OF KENTUCKY

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 71-6516.  ARGUED DECEMBER 5, 1972-- DECIDED FEBRUARY
28,

           1973 


PETITIONER, IMPRISONED IN ALABAMA, APPLIED TO THE DISTRICT COURT FOR
THE WESTERN DISTRICT OF KENTUCKY FOR A WRIT OF FEDERAL HABEAS CORPUS TO
COMPEL THE COMMONWEALTH OF KENTUCKY TO GRANT HIM A SPEEDY TRIAL ON AN
INDICTMENT RETURNED BY THE GRAND JURY OF RESPONDENT COURT REGARDING
WHICH KENTUCKY HAD LODGED A DETAINER WITH ALABAMA.  THE DISTRICT COURT
GRANTED THE WRIT, BUT THE COURT OF APPEALS REVERSED ON THE GROUND THAT
28 U.S.C. 2241(A), WHICH PROVIDES THAT "(WRITS OF HABEAS CORPUS MAY BE
GRANTED BY THE . . . DISTRICT COURTS . . . WITHIN THEIR RESPECTIVE
JURISDICTIONS" PRECLUDED GRANTING THE WRIT TO A PRISONER WHO WAS NOT
PHYSICALLY PRESENT WITHIN THE TERRITORIAL LIMITS OF THE DISTRICT
COURT.  HELD: 

1.  UNDER PEYTON V. ROWE, 391 U.S. 54, WHICH DISCARDED THE
"PREMATURITY DOCTRINE" OF MCNALLY V. HILL, 293 U.S. 131, THE PETITIONER
WAS "IN CUSTODY" WITHIN THE MEANING OF 28 U.S.C. 2241(C)(3) FOR
PURPOSES OF A HABEAS CORPUS ATTACK ON THE KENTUCKY INDICTMENT
UNDERLYING THE DETAINER, EVEN THOUGH HE WAS CONFINED IN AN ALABAMA
PRISON.  PP. 488-489. 

2.  THE EXHAUSTION DOCTRINE OF EX PARTE ROYALL, 117 U.S. 241, DOES
NOT BAR A PETITION FOR FEDERAL HABEAS CORPUS ALLEGING, UNDER SMITH V.
HOOEY, 393 U.S. 374, A CONSTITUTIONAL CLAIM OF PRESENT DENIAL OF A
SPEEDY TRIAL, EVEN THOUGH THE PETITIONER HAS NOT YET BEEN BROUGHT TO
TRIAL ON THE STATE CHARGE.  THE PETITIONER MUST, HOWEVER, HAVE
EXHAUSTED AVAILABLE STATE COURT REMEDIES FOR CONSIDERATION OF THAT
CONSTITUTIONAL CLAIM OF PRESENT DENIAL OF A SPEEDY TRIAL, EVEN THOUGH
THE PETITIONER HAS NOT YET BEEN BROUGHT TO TRIAL ON THE STATE CHARGE. 
THE PETITIONER MUST, HOWEVER, HAVE EXHAUSTED AVAILABLE STATE COURT
REMEDIES FOR CONSIDERATION OF THAT CONSTITUTIONAL CLAIM.  PP. 489-493. 

3.  THE JURISDICTION OF A DISTRICT COURT CONSIDERING A HABEAS CORPUS
PETITION REQUIRES ONLY THAT THE COURT ISSUING THE WRIT HAVE
JURISDICTION OVER THE CUSTODIAN OF THE PRISONER.  PP. 494-495. 

4.  AHRENS V. CLARK, 335 U.S. 188, ON WHICH RESPONDENT RELIES, CAN
NO LONGER BE VIEWED AS REQUIRING THAT HABEAS CORPUS PETITIONS BE
BROUGHT ONLY IN THE DISTRICT OF THE PETITIONER'S CONFINEMENT.  HERE,
SINCE RESPONDENT WAS PROPERLY SERVED WITH PROCESS IN THE WESTERN
DISTRICT OF KENTUCKY, THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE
DISTRICT COURT SHOULD HAVE DISMISSED THE PETITION FOR LACK OF
JURISDICTION.  PP. 495-501. 

454 F.2D 145, REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED AN
OPINION CONCURRING IN THE RESULT, POST, P. 501.  REHNQUIST, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C. J., AND POWELL, J., JOINED,
POST, P. 502. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS PRESENTLY SERVING A SENTENCE IN AN ALABAMA PRISON.  HE
APPLIED TO THE DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY FOR
A WRIT OF FEDERAL HABEAS CORPUS, ALLEGING DENIAL OF HIS CONSTITUTIONAL
RIGHT TO A SPEEDY TRIAL, SMITH V. HOOEY, 393 U.S. 374(1969), AND
PRAYING THAT AN ORDER ISSUE DIRECTING RESPONDENT TO AFFORD HIM AN
IMMEDIATE TRIAL ON A THEN THREE-YEAR-OLD KENTUCKY INDICTMENT.  WE ARE
TO CONSIDER WHETHER, AS PETITIONER WAS NOT PHYSICALLY PRESENT WITHIN
THE TERRITORIAL LIMITS OF THE DISTRICT COURT FOR THE WESTERN DISTRICT
OF KENTUCKY, THE PROVISION OF 28 U.S.C. 2241(A) THAT "(WRITS OF HABEAS
CORPUS MAY BE GRANTED BY THE . . . DISTRICT COURTS . . . WITHIN THEIR
RESPECTIVE JURISDICTIONS" PRECLUDED THE DISTRICT COURT FROM
ENTERTAINING PETITIONER'S APPLICATION.  THE DISTRICT COURT HELD THAT
THE SECTION DID NOT BAR ITS DETERMINATION OF THE APPLICATION.  THE
COURT HELD FURTHER THAT PETITIONER HAD BEEN DENIED A SPEEDY TRIAL AND
ORDERED RESPONDENT EITHER TO SECURE HIS PRESENCE IN KENTUCKY FOR TRIAL
WITHIN 60 DAYS OR TO DISMISS THE INDICTMENT.  THE COURT OF APPEALS FOR
THE SIXTH CIRCUIT REVERSED ON THE GROUND THAT "THE HABEAS CORPUS
JURISDICTION CONFERRED ON THE FEDERAL COURTS BY 28 U.S.C. 2241(A) IS
'LIMITED TO PETITIONS FILED BY PERSONS PHYSICALLY PRESENT WITHIN THE
TERRITORIAL LIMITS OF THE DISTRICT COURT.'"  454 F.2D 145, 146(1972). 
WE GRANTED CERTIORARI.  407 U.S. 909(1972).  WE REVERSE. 

        I 

ON JULY 31, 1967, THE GRAND JURY OF THE JEFFERSON COUNTY CIRCUIT
COURT (30TH JUDICIAL CIRCUIT OF KENTUCKY) INDICTED PETITIONER ON ONE
COUNT OF STOREHOUSE BREAKING AND ONE COUNT OF SAFEBREAKING.  AT THE
TIME OF THE INDICTMENT, PETITIONER WAS IN CUSTODY IN CALIFORNIA, AND HE
WAS RETURNED TO KENTUCKY TO STAND TRIAL ON THE INDICTMENT.  BUT ON
NOVEMBER 13, 1967, HE ESCAPED FROM THE CUSTODY OF KENTUCKY OFFICIALS
AND REMAINED AT LARGE UNTIL HIS ARREST IN ALABAMA ON FEBRUARY 24,
1968.  PETITIONER WAS CONVICTED OF CERTAIN UNSPECIFIED FELONIES IN THE
ALABAMA STATE COURTS, AND WAS SENTENCED TO THE ALABAMA STATE PRISON,
WHERE HE WAS CONFINED WHEN HE FILED THIS ACTION. 

THE VALIDITY OF PETITIONER'S CONVICTION ON THE ALABAMA FELONIES IS
NOT AT ISSUE HERE, JUST AS IT WAS NOT AT ISSUE BEFORE THE DISTRICT
COURT FOR THE WESTERN DISTRICT OF KENTUCKY.  NOR DOES PETITIONER
CHALLENGE THE "PRESENT EFFECT BEING GIVEN THE (KENTUCKY) DETAINER BY
THE (ALABAMA) AUTHORITIES . . . "  NELSON V. GEORGE, 399 U.S. 224,
225(1970).  HE ATTACKS, RATHER, THE VALIDITY OF THE KENTUCKY INDICTMENT
WHICH UNDERLIES THE DETAINER LODGED AGAINST HIM BY OFFICIALS OF THAT
STATE. 

IN A PRO SE APPLICATION FOR HABEAS CORPUS RELIEF TO THE FEDERAL
DISTRICT COURT IN THE WESTERN DISTRICT OF KENTUCKY, PETITIONER ALLEGED
THAT HE HAD MADE REPEATED DEMANDS FOR A SPEEDY TRIAL ON THE KENTUCKY
INDICTMENT, THAT HE HAD BEEN DENIED HIS RIGHT TO A SPEEDY TRIAL, THAT
FURTHER DELAY IN TRIAL WOULD IMPAIR HIS ABILITY TO DEFEND HIMSELF, AND
THAT THE EXISTENCE OF THE KENTUCKY INDICTMENT ADVERSELY AFFECTED HIS
CONDITION OF CONFINEMENT IN ALABAMA BY PREJUDICING HIS OPPORTUNITY FOR
PAROLE.  IN RESPONSE TO AN ORDER TO SHOW CAUSE, RESPONDENT ARGUED THAT
THE DISTRICT COURT LACKED JURISDICTION BECAUSE THE PETITIONER WAS NOT
CONFINED WITHIN THE DISTRICT.  RESPONDENT ADDED THAT "PETITIONER IN THE
CASE AT BAR MAY CHALLENGE THE LEGALITY OF ANY OF THE ADVERSE EFFECTS OF
ANY KENTUCKY DETAINER AGAINST HIM IN ALABAMA BY HABEAS CORPUS IN THE
ALABAMA FEDERAL DISTRICT COURT."  APP. 6-7.  THE DISTRICT COURT HELD,
CITING SMITH V. HOOEY, 393 U.S. 374(1969), THAT KENTUCKY MUST "ATTEMPT
TO EFFECT THE RETURN OF A PRISONER FROM A FOREIGN JURISDICTION FOR
TRIAL ON PENDING STATE CHARGES WHEN SUCH PRISONER SO DEMANDS . . .
SINCE IT IS THE STATE OF KENTUCKY WHICH MUST TAKE ACTION, IT FOLLOWS
THAT JURISDICTION RESTS IN THIS DISTRICT WHICH HAS JURISDICTION OVER
THE NECESSARY STATE OFFICIALS."  APP. 9. 

UNDER THE CONSTRAINT OF ITS EARLIER DECISION, /1/  THE COURT OF
APPEALS REVERSED BUT STATED THAT IT "REACHED) THIS CONCLUSION
RELUCTANTLY" BECAUSE OF THE POSSIBILITY THAT THE DECISION WOULD "RESULT
IN BRADEN'S INABILITY TO FIND A FORUM IN WHICH TO ASSERT HIS
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL-- A RIGHT WHICH HE IS LEGALLY
ENTITLED TO ASSERT AT THIS TIME UNDER PEYTON V. ROWE, 391 U.S.
54(1968).  THIS IS A POSSIBILITY BECAUSE THE RULE IN THE FIFTH CIRCUIT,
WHERE (BRADEN) IS INCARCERATED, APPEARS TO BE THAT A DISTRICT COURT IN
THE STATE THAT HAS FILED THE DETAINER IS THE PROPER FORUM IN WHICH TO
FILE THE PETITION.  SEE MAY V. GEORGIA, 409 F.2D 203(5TH CIR. 1969). 
SEE ALSO RODGERS V. LOUISIANA, 418 F.2D 237(5TH CIR. 1969).  BRADEN
THUS MAY FIND HIMSELF ENSNARED IN WHAT HAS APTLY BEEN TERMED 'CATCH
2254'-- UNABLE TO VINDICATE HIS CONSTITUTIONAL RIGHTS IN EITHER OF THE
ONLY TWO STATES THAT COULD POSSIBLY AFFORD A REMEDY.  SEE TUTTLE, CATCH
2254:  FEDERAL JURISDICTION AND INTERSTATE DETAINERS, 32 U.PITT.L.REV. 
489, 502-03 (1971)."  454 F.2D, AT 146-147. 

        II 

WE GRANTED CERTIORARI TO RESOLVE A SHARP CONFLICT AMONG THE FEDERAL
COURTS /2/  ON THE CHOICE OF FORUM WHERE A PRISONER ATTACKS AN
INTERSTATE DETAINER ON FEDERAL HABEAS CORPUS.  BEFORE TURNING TO THAT
QUESTION, WE MUST MAKE CLEAR THAT PETITIONER IS ENTITLED TO RAISE HIS
SPEEDY TRIAL CLAIM ON FEDERAL HABEAS CORPUS AT THIS TIME.  FIRST, HE IS
CURRENTLY "IN CUSTODY" WITHIN THE MEANING OF THE FEDERAL HABEAS CORPUS
STATUTE, 28 U.S.C. 2241(C)(3).  PRIOR TO OUR DECISION IN PEYTON V.
ROWE, 391 U.S. 54(1968), THE PREMATURITY DOCTRINE" OF MCNALLY V. HILL,
293 U.S. 131(1934), WOULD, OF COURSE, HAVE BARRED HIS PETITION FOR
RELIEF.  /3/  BUT OUR DECISION IN PEYTON V. ROWE DISCARDED THE
PREMATURITY DOCTRINE, WHICH HAD PERMITTED A PRISONER TO ATTACK ON
HABEAS CORPUS ONLY HIS CURRENT CONFINEMENT, AND NOT CONFINEMENT THAT
WOULD BE IMPOSED IN THE FUTURE, AND OPENED THE DOOR TO THIS ACTION. 
/4/ 

SECOND, PETITIONER HAS EXHAUSTED ALL AVAILABLE STATE REMEDIES AS A
PRELUDE TO THIS ACTION.  IT IS TRUE, OF COURSE, THAT HE HAS NOT YET
BEEN TRIED ON THE KENTUCKY INDICTMENT, AND HE CAN ASSERT A SPEEDY TRIAL
DEFENSE WHEN, AND IF, HE IS FINALLY BROUGHT TO TRIAL.  IT IS ALSO TRUE,
AS OUR BROTHER REHNQUIST POINTS OUT IN DISSENT, THAT FEDERAL HABEAS
CORPUS DOES NOT LIE, ABSENT "SPECIAL CIRCUMSTANCES," TO ADJUDICATE THE
MERITS OF AN AFFIRMATIVE DEFENSE TO A STATE CRIMINAL CHARGE PRIOR TO A
JUDGMENT OF CONVICTION BY A STATE COURT.  EX PARTE ROYALL, 117 U.S.
241, 253(1886).  PETITIONER DOES NOT, HOWEVER, SEEK AT THIS TIME TO
LITIGATE A FEDERAL DEFENSE TO A CRIMINAL CHARGE, BUT ONLY TO DEMAND
ENFORCEMENT OF THE COMMONWEALTH'S AFFIRMATIVE CONSTITUTIONAL OBLIGATION
TO BRING HIM PROMPTLY TO TRIAL.  SMITH V. HOOEY, 393 U.S. 374(1969). 
HE HAS MADE REPEATED DEMANDS FOR TRIAL TO THE COURTS OF KENTUCKY,
OFFERING THOSE COURTS AN OPPORTUNITY TO CONSIDER ON THE MERITS HIS
CONSTITUTIONAL CLAIM OF THE PRESENT DENIAL OF A SPEEDY TRIAL.  UNDER
THESE CIRCUMSTANCES IT IS CLEAR THAT HE HAS EXHAUSTED ALL AVAILABLE
STATE COURT REMEDIES FOR CONSIDERATION OF THAT CONSTITUTIONAL CLAIM,
EVEN THOUGH KENTUCKY HAS NOT YET BROUGHT HIM TO TRIAL. 

THE EXHAUSTION DOCTRINE IS A JUDICIALLY CRAFTED INSTRUMENT WHICH
REFLECTS A CAREFUL BALANCE BETWEEN IMPORTANT INTERESTS OF FEDERALISM
AND THE NEED TO PRESERVE THE WRIT OF HABEAS CORPUS AS A "SWIFT AND
IMPERATIVE REMEDY IN ALL CASES OF ILLEGAL RESTRAINT OR CONFINEMENT." 
SECRETARY OF STATE FOR HOME AFFAIRS V. O'BRIEN, (1923) A.C. 603,
609(H.L.).  IT CANNOT BE USED AS A BLUNDERBUSS TO SHATTER THE ATTEMPT
AT LITIGATION OF CONSTITUTIONAL CLAIMS WITHOUT REGARD TO THE PURPOSES
THAT UNDERLIE THE DOCTRINE AND THAT CALLED IT INTO EXISTENCE.  AS
APPLIED IN OUR EARLIER DECISIONS, THE DOCTRINE 

"PRESERVES THE ROLE OF THE STATE COURTS IN THE APPLICATION AND
ENFORCEMENT OF FEDERAL LAW.  EARLY FEDERAL INTERVENTION IN STATE
CRIMINAL PROCEEDINGS WOULD TEND TO REMOVE FEDERAL QUESTIONS FROM THE
STATE COURTS, ISOLATE THOSE COURTS FROM CONSTITUTIONAL ISSUES, AND
THEREBY REMOVE THEIR UNDERSTANDING OF AND HOSPITALITY TO FEDERALLY
PROTECTED INTERESTS.  SECOND, (THE DOCTRINE) PRESERVES ORDERLY
ADMINISTRATION OF STATE JUDICIAL BUSINESS, PREVENTING THE INTERRUPTION
OF STATE ADJUDICATION BY FEDERAL HABEAS PROCEEDINGS.  IT IS IMPORTANT
THAT PETITIONERS REACH STATE APPELLATE COURTS, WHICH CAN DEVELOP AND
CORRECT ERRORS OF STATE AND FEDERAL LAW AND MOST EFFECTIVELY SUPERVISE
AND IMPOSE UNIFORMITY ON TRIAL COURTS."  NOTE, DEVELOPMENTS IN THE LAW-
FEDERAL HABEAS CORPUS, 83 HARV.L.REV.  1038, 1094(1970).  SEE DARR V.
BURFORD, 339 U.S. 200, 204-206(1950), AND THE CASE WHICH OVERRULED IT,
FAY V. NOIA, 372 U.S. 391, 417-410(1963).  SEE ALSO EX PARTE ROYALL,
SUPRA, AT 251-252; EX PARTE HAWK, 321 U.S. 114(1944); CF. YOUNGER V.
HARRIS, 401 U.S. 37(1971); STEFANELLI V. MINARD, 342 U.S. 117(1951). 

THE FUNDAMENTAL INTERESTS UNDERLYING THE EXHAUSTION DOCTRINE HAVE
BEEN FULLY SATISFIED IN PETITIONER'S SITUATION.  HE HAS ALREADY
PRESENTED HIS FEDERAL CONSTITUTIONAL CLAIM OF A PRESENT DENIAL OF A
SPEEDY TRIAL TO THE COURTS OF KENTUCKY.  THE STATE COURTS REJECTED THE
CLAIM, APPARENTLY ON THE GROUND THAT SINCE HE HAD ONCE ESCAPED FROM
CUSTODY THE COMMONWEALTH SHOULD NOT BE OBLIGATED TO INCUR THE RISK OF
ANOTHER ESCAPE BY RETURNING HIM FOR TRIAL.  PETITIONER EXHAUSTED ALL
AVAILABLE STATE COURT OPPORTUNITIES TO ESTABLISH HIS POSITION THAT THE
PRIOR ESCAPE DID NOT OBVIATE THE COMMONWEALTH'S DUTY UNDER SMITH V.
HOOEY, SUPRA.  MOREOVER, PETITIONER MADE NO EFFORT TO ABORT A STATE
PROCEEDING OR TO DISRUPT THE ORDERLY FUNCTIONING OF STATE JUDICIAL
PROCESSES.  HE COMES TO FEDERAL COURT, NOT IN AN EFFORT TO FORESTALL A
STATE PROSECUTION, BUT TO ENFORCE THE COMMONWEALTH'S OBLIGATION TO
PROVIDE HIM WITH A STATE COURT FORUM.  HE DELAYED HIS APPLICATION FOR
FEDERAL RELIEF UNTIL THE STATE COURTS HAD CONCLUSIVELY DETERMINED THAT
HIS PROSECUTION WAS TEMPORARILY MORIBUND.  SINCE PETITIONER BEGAN
SERVING THE SECOND OF TWO 10-YEAR ALABAMA SENTENCES IN MARCH 1972, THE
REVIVAL OF THE PROSECUTION MAY BE DELAYED UNTIL AS LATE AS 1982.  A
FEDERAL HABEAS CORPUS ACTION AT THIS TIME AND UNDER THESE CIRCUMSTANCES
DOES NOT JEOPARDIZE ANY LEGITIMATE INTEREST ON FEDERALISM.  /5/
RESPONDENT APPARENTLY SHARES THAT VIEW SINCE IT SPECIFICALLY CONCEDES
THAT PETITIONER HAS EXHAUSTED ALL AVAILABLE STATE REMEDIES, TR. OF ORAL
ARG. 41. 

IN THE CASE BEFORE US, THE COURT OF APPEALS HELD-- NOT SURPRISINGLY,
IN VIEW OF THE CONSIDERATIONS DISCUSSED ABOVE-- THAT EVEN THOUGH
PETITIONER HAD CHOSEN THE WRONG FORUM, HIS SPEEDY TRIAL CLAIM WAS ONE
"WHICH HE IS LEGALLY ENTITLED TO ASSERT AT THIS TIME UNDER PEYTON V.
ROWE, 391 U.S. 54 (1968)."  454 F.2D, AT 146.  AND THE DISTRICT COURT,
WHICH UPHELD ON THE MERITS PETITIONER'S SPEEDY TRIAL CLAIM, NECESSARILY
ADOPTED THAT VIEW.  INDEED, THE GREAT MAJORITY OF LOWER FEDERAL COURTS
WHICH HAVE CONSIDERED THE QUESTION SINCE SMITH V. HOOEY, SUPRA, HAVE
REACHED THIS SAME, AND INDISPUTABLY CORRECT, CONCLUSION.  /6/ 

WE EMPHASIZE THAT NOTHING WE HAVE SAID WOULD PERMIT THE DERAILMENT
OF A PENDING STATE PROCEEDING BY AN ATTEMPT TO LITIGATE CONSTITUTIONAL
DEFENSES PREMATURELY IN FEDERAL COURT.  THE CONTENTION IN DISSENT THAT
OUR DECISION CONVERTS FEDERAL HABEAS CORPUS INTO "A PRETRIAL-MOTION
FORUM FOR STATE PRISONERS," WHOLLY MISAPPREHENDS TODAY'S HOLDING. 

        III 

ACCORDINGLY, WE TURN TO THE DETERMINATION OF THE FORUM IN WHICH THE
PETITION FOR HABEAS CORPUS SHOULD BE BROUGHT.  IN TERMS OF TRADITIONAL
VENUE CONSIDERATIONS, THE DISTRICT COURT FOR THE WESTERN DISTRICT OF
KENTUCKY IS ALMOST SURELY THE MOST DESIRABLE FORUM FOR THE ADJUDICATION
OF THE CLAIM.  /7/  IT IS IN KENTUCKY, WHERE ALL OF THE MATERIAL EVENTS
TOOK PLACE, THAT THE RECORDS AND WITNESSES PERTINENT TO PETITIONER'S
CLAIM ARE LIKELY TO BE FOUND.  AND THAT FORUM IS PRESUMABLY NO LESS
CONVENIENT FOR THE RESPONDENT AND THE COMMONWEALTH OF KENTUCKY, THAN
FOR THE PETITIONER.  THE EXPENSE AND RISK OF TRANSPORTING THE
PETITIONER TO THE WESTERN DISTRICT OF KENTUCKY, SHOULD HIS PRESENCE AT
A HEARING PROVE NECESSARY, WOULD IN ALL LIKELIHOOD BE OUTWEIGHED BY THE
DIFFICULTIES OF TRANSPORTING RECORDS AND WITNESSES FROM KENTUCKY TO THE
DISTRICT WHERE PETITIONER IS CONFINED.  /8/  INDEED, RESPONDENT MAKES
CLEAR THAT "ON BALANCE, IT WOULD APPEAR SIMPLER AND LESS EXPENSIVE FOR
THE STATE OF KENTUCKY TO LITIGATE SUCH QUESTIONS (AS THOSE INVOLVED IN
THIS CASE) IN ONE OF ITS OWN FEDERAL JUDICIAL DISTRICTS."  BRIEF FOR
RESPONDENT 6. 

BUT RESPONDENT INSISTS THAT HOWEVER THE BALANCE OF CONVENIENCE MIGHT
BE STRUCK WITH REFERENCE TO THE QUESTION OF VENUE, THE CHOICE OF FORUM
IS RIGIDLY AND JURISDICTIONALLY CONTROLLED BY THE PROVISION OF SEC.
2241(A) THAT "(WRITS OF HABEAS CORPUS MAY BE GRANTED BY THE SUPREME
COURT, ANY JUSTICE THEREOF, THE DISTRICT COURTS AND ANY CIRCUIT JUDGE
WITHIN THEIR RESPECTIVE JURISDICTIONS."  28 U.S.C. 2241(A).  RELYING ON
OUR DECISION IN AHRENS V. CLARK, 335 U.S. 188(1948), RESPONDENT
CONTENDS-- AND THE COURT OF APPEALS HELD-- THAT THE ITALICIZED WORDS
LIMIT A DISTRICT COURT'S HABEAS CORPUS JURISDICTION TO CASES WHERE THE
PRISONER SEEKING RELIEF IS CONFINED WITHIN ITS TERRITORIAL
JURISDICTION.  SINCE THAT INTERPRETATION IS NOT COMPELLED EITHER BY THE
LANGUAGE OF THE STATUTE OR BY THE DECISION IN AHRENS, AND SINCE IT IS
FUNDAMENTALLY AT ODDS WITH THE PURPOSES OF THE STATUTORY SCHEME, WE
CANNOT AGREE.     THE WRIT OF HABEAS CORPUS DOES NOT ACT UPON THE
PRISONER WHO SEEKS RELIEF, BUT UPON THE PERSON WHO HOLDS HIM IN WHAT IS
ALLEGED TO BE UNLAWFUL CUSTODY.  WALES V. WHITNEY, 114 U.S. 564,
574(1885).  IN THE CLASSIC STATEMENT: 

     "THE IMPORTANT FACT TO BE OBSERVED IN REGARD TO THE MODE OF

  PROCEDURE UPON THIS WRIT IS, THAT IT IS DIRECTED TO, AND SERVED

  UPON, NOT THE PERSON CONFINED, BUT HIS JAILER.  IT DOES NOT REACH

  THE FORMER EXCEPT THROUGH THE LATTER.  THE OFFICER OR PERSON WHO

  SERVES IT DOES NOT UNBAR THE PRISON DOORS, AND SET THE PRISONER

  FREE, BUT THE COURT RELIEVES HIM BY COMPELLING THE OPPRESSOR TO

  RELEASE HIS CONSTRAINT.  THE WHOLE FORCE OF THE WRIT IS SPENT

  UPON THE RESPONDENT."  IN THE MATTER OF JACKSON, 15 MICH. 417,

  438-440(1867), QUOTED WITH APPROVAL IN EX PARTE ENDO, 323 U.S.

  283, 306(1944). 

SEE ALSO AHRENS V. CLARK, 335 U.S.,AT 196-197 (RUTLEDGE, J.,
DISSENTING). 

READ LITERALLY, THE LANGUAGE OF SEC. 2241(A) REQUIRES NOTHING MORE
THAN THAT THE COURT ISSUING THE WRIT HAVE JURISDICTION OVER THE
CUSTODIAN.  SO LONG AS THE CUSTODIAN CAN BE REACHED BY SERVICE OF
PROCESS, THE COURT CAN ISSUE A WRIT "WITHIN ITS JURISDICTION" REQUIRING
THAT THE PRISONER BE BROUGHT BEFORE THE COURT FOR A HEARING ON HIS
CLAIM, OR REQUIRING THAT HE BE RELEASED OUTRIGHT FROM CUSTODY, EVEN IF
THE PRISONER HIMSELF IS CONFINED OUTSIDE THE COURT'S TERRITORIAL
JURISDICTION. 

NEVERTHELESS, THERE IS LANGUAGE IN OUR OPINION IN AHRENS V. CLARK,
SUPRA, INDICATING THAT THE PRISONER'S PRESENCE WITHIN THE TERRITORIAL
CONFINES OF THE DISTRICT IS AN INVARIABLE PREREQUISITE TO THE EXERCISE
OF THE DISTRICT COURT'S HABEAS CORPUS JURISDICTION.  IN AHRENS, 120
GERMAN NATIONALS CONFINED AT ELLIS ISLAND, NEW YORK, ENDING DEPORTATION
SOUGHT HABEAS CORPUS ON THE PRINCIPAL GROUND THAT THE REMOVAL ORDERS
EXCEEDED THE PRESIDENT'S STATUTORY AUTHORITY UNDER THE ALIEN ENEMY ACT
OF 1798.  THEY FILED THEIR PETITIONS IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, NAMING AS RESPONDENT THE ATTORNEY GENERAL OF THE
UNITED STATES.  CONSTRUING THE STATUTORY PREDECESSOR TO SEC. 2241(A),
WE HELD THAT THE PHRASE, "WITHIN THEIR RESPECTIVE JURISDICTIONS,"
PRECLUDED THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FROM
INQUIRING INTO THE VALIDITY OF THE PRISONERS' DETENTION AT ELLIS
ISLAND, AND WE THEREFORE AFFIRMED THE DISMISSAL OF THE PETITIONS ON
JURISDICTIONAL GROUNDS. 

OUR DECISION IN AHRENS RESTED ON THE VIEW THAT CONGRESS' PARAMOUNT
CONCERN WAS THE RISK AND EXPENSE ATTENDANT TO THE "PRODUCTION OF
PRISONERS FROM REMOTE SECTION, PERHAPS THOUSANDS OF MILES FROM THE
DISTRICT COURT THAT ISSUED THE WRIT.  THE OPPORTUNITIES FOR ESCAPE
AFFORDED BY TRAVEL, THE COST OF TRANSPORTATION, THE ADMINISTRATIVE
BURDEN OF SUCH AN UNDERTAKING NEGATE SUCH A PURPOSE."  335 U.S.,AT
191.  AND WE FOUND SUPPORT FOR THAT ASSUMPTION IN THE LEGISLATIVE
HISTORY OF THE ACT.  /9/  DURING THE COURSE OF SENATE DEBATE ON THE
HABEAS CORPUS STATUTE OF 1867, /10/  THE BILL WAS CRITICIZED ON THE
GROUND THAT IT WOULD PERMIT "A DISTRICT JUDGE IN FLORIDA TO BRING
BEFORE HIM SOME MEN CONVICTED AND SENTENCED AND HELD UNDER IMPRISONMENT
IN THE STATE OF VERMONT OR IN ANY OF THE FURTHER STATES."  CONG. GLOBE,
39TH CONG., 2D SESS., 730.  SENATOR TRUMBULL, SPONSOR OF THE BILL, MET
THE OBJECTION WITH AN AMENDMENT ADDING THE WORDS, "WITHIN THEIR
RESPECTIVE JURISDICTIONS," AS A CIRCUMSCRIPTION OF THE POWER OF THE
DISTRICT COURTS TO ISSUE THE WRIT.  /11/ 

BUT DEVELOPMENTS SINCE AHRENS HAVE HAD A PROFOUND IMPACT ON THE
CONTINUING VITALITY OF THAT DECISION.  FIRST, IN THE COURSE OF
OVERRULING THE APPLICATION OF AHRENS TO THE ORDINARY CASE WHERE A
PRISONER ATTACKS THE CONVICTION AND SENTENCE OF A FEDERAL OR STATE
COURT, CONGRESS HAS INDICATED THAT A NUMBER OF THE PREMISES WHICH WERE
THOUGHT TO REQUIRE THAT DECISION ARE UNTENABLE.  A 1950 AMENDMENT TO
THE HABEAS CORPUS STATUTE REQUIRES THAT A COLLATERAL ATTACK ON A
FEDERAL SENTENCE BE BROUGHT IN THE SENTENCING COURT RATHER THAN THE
DISTRICT WHERE THE PRISONER IS CONFINED.  28 U.S.C. 2255.  SIMILARLY, A
PRISONER CONTESTING A CONVICTION AND SENTENCE OF A STATE COURT OF A
STATE WHICH CONTAINS TWO OR MORE FEDERAL JUDICIAL DISTRICTS, WHO IS
CONFINED IN A DISTRICT WITHIN THE STATE OTHER THAN THAT IN WHICH THE
SENTENCING COURT IS LOCATED, HAS THE OPTION OF SEEKING HABEAS CORPUS
EITHER IN THE DISTRICT WHERE HE IS CONFINED OR THE DISTRICT WHERE THE
SENTENCING COURT IS LOCATED.  28 U.S.C. 2241(D).  /12/  IN ENACTING
THESE AMENDMENTS, CONGRESS EXPLICITLY RECOGNIZED THE SUBSTANTIAL
ADVANTAGES OF HAVING THESE CASES RESOLVED IN THE COURT WHICH ORIGINALLY
IMPOSED THE CONFINEMENT OR IN THE COURT LOCATED NEAREST THE SITE OF THE
UNDERLYING CONTROVERSY.  /13/  AND CONGRESS HAS FURTHER CHALLENGED THE
THEORETICAL UNDERPINNINGS OF THE DECISION BY CODIFYING IN THE HABEAS
CORPUS STATUTE A PROCEDURE WE SANCTIONED IN WALKER V. JOHNSTON, 312
U.S. 275, 284(1941), WHEREBY A PETITION FOR HABEAS CORPUS CAN IN MANY
INSTANCES BE RESOLVED WITHOUT REQUIRING THE PRESENCE OF THE PETITIONER
BEFORE THE COURT THAT ADJUDICATES HIS CLAIM.  28 U.S.C. 2243.  SEE ALSO
UNITED STATES V. HAYMAN, 342 U.S. 205, 222-223(1952).  /14/ 

THIS COURT, TOO, HAS UNDERCUT SOME OF THE PREMISES OF THE AHRENS
DECISION.  WHERE AMERICAN CITIZENS CONFINED OVERSEAS (AND THUS OUTSIDE
THE TERRITORY OF ANY DISTRICT COURT) HAVE SOUGHT RELIEF IN HABEAS
CORPUS, WE HAVE HELD, IF ONLY IMPLICITLY, THAT THE PETITIONERS' ABSENCE
FROM THE DISTRICT DOES NOT PRESENT A JURISDICTIONAL OBSTACLE TO THE
CONSIDERATION OF THE CLAIM.  BURNS V. WILSON, 346 U.S 137(1953),
REHEARING DENIED, 346 U.S. 844, 851-852 (OPINION OF FRANKFURTER, J.);
CF. TOTH V. QUARLES, 350 U.S. 11(1955); HIROTA V. MCARTHUR, 338 U.S.
197, 199(1948) (DOUGLAS, J., CONCURRING (1949)). 

A FURTHER, CRITICAL DEVELOPMENT SINCE OUR DECISION IN AHRENS IS THE
EMERGENCE OF NEW CLASSES OF PRISONERS WHO ARE ABLE TO PETITION FOR
HABEAS CORPUS BECAUSE OF THE ADOPTION OF A MORE EXPANSIVE DEFINITION OF
THE "CUSTODY" REQUIREMENT OF THE HABEAS STATUTE.  SEE PEYTON V. ROWE,
391 U.S. 54(1968); CARAFAS V. LAVALLEE, 391 U.S. 234(1968); JONES V.
CUNNINGHAM, 371 U.S. 236(1963).  THE OVERRULING OF MCNALLY V. HILL, 293
U.S. 131(1934), MADE IT POSSIBLE FOR PRISONERS IN CUSTODY UNDER ONE
SENTENCE TO ATTACK A SENTENCE WHICH THEY HAD NOT YET BEGUN TO SERVE. 
AND IT ALSO ENABLED A PETITIONER HELD IN ONE STATE TO ATTACK A DETAINER
LODGED AGAINST HIM BY ANOTHER STATE.  IN SUCH A CASE, THE STATE HOLDING
THE PRISONER IN IMMEDIATE CONFINEMENT ACTS AS AGENT FOR THE DEMANDING
STATE, /15/  AND THE CUSTODIAN STATE IS PRESUMABLY INDIFFERENT TO THE
RESOLUTION OF PRISONER'S ATTACK ON THE DETAINER.  HERE, FOR EXAMPLE,
THE PETITIONER IS CONFINED IN ALABAMA, BUT HIS DISPUTE IS WITH THE
COMMONWEALTH OF KENTUCKY, NOT THE STATE OF ALABAMA.  UNDER THESE
CIRCUMSTANCES IT WOULD SERVE NO USEFUL PURPOSE TO APPLY THE AHRENS RULE
AND REQUIRE THAT THE ACTION BE BROUGHT IN ALABAMA.  IN FACT, A SLAVISH
APPLICATION OF THE RULE WOULD JAR WITH THE VERY PURPOSE UNDERLYING THE
ADDITION OF THE PHRASE, "WITHIN THEIR RESPECTIVE JURISDICTIONS."  WE
CANNOT ASSUME THAT CONGRESS INTENDED TO REQUIRE THE COMMONWEALTH OF
KENTUCKY TO DEFEND ITS ACTION IN A DISTANT STATE AND TO PRECLUDE THE
RESOLUTION OF THE DISPUTE BY A FEDERAL JUDGE FAMILIAR WITH THE LAWS AND
PRACTICES OF KENTUCKY.  /16/  SEE UNITED STATES EX REL. MEADOWS V. NEW
YORK, 426 F.2D 1176, 1181(CA2 1970); WORD V. NORTH CAROLINA, 406 F.2D
352 (CA4 1969). 

        IV 

IN VIEW OF THESE DEVELOPMENTS SINCE AHRENS V. CLARK, WE CAN NO
LONGER VIEW THAT DECISION AS ESTABLISHING AN INFLEXIBLE JURISDICTIONAL
RULE, DICTATING THE CHOICE OF AN INCONVENIENT FORUM EVEN IN A CLASS OF
CASES WHICH COULD NOT HAVE BEEN FORESEEN AT THE TIME OF OUR DECISION. 
/17/  OF COURSE, IN MANY INSTANCES THE DISTRICT IN WHICH PETITIONERS
ARE HELD WILL BE THE MOST CONVENIENT FORUM FOR THE LITIGATION OF THEIR
CLAIMS.  ON THE FACTS OF AHRENS ITSELF, FOR EXAMPLE, PETITIONERS COULD
HAVE CHALLENGED THEIR DETENTION BY BRINGING AN ACTION IN THE EASTERN
DISTRICT OF NEW YORK AGAINST THE FEDERAL OFFICIALS WHO CONFINED THEM IN
THAT DISTRICT.  NO REASON IS APPARENT WHY THE DISTRICT OF COLUMBIA
WOULD HAVE BEEN A MORE CONVENIENT FORUM, OR WHY THE GOVERNMENT SHOULD
HAVE UNDERTAKEN THE BURDEN OF TRANSPORTING 120 DETAINEES TO A HEARING
IN THE DISTRICT OF COLUMBIA.  UNDER THESE CIRCUMSTANCES, TRADITIONAL
PRINCIPLES OF VENUE WOULD HAVE MANDATED THE BRINGING OF THE ACTION IN
THE EASTERN DISTRICT OF NEW YORK, RATHER THAN THE DISTRICT OF
COLUMBIA.  AHRENS V. CLARK STANDS FOR NO BROADER PROPOSITION. 

SINCE THE PETITIONER'S ABSENCE FROM THE WESTERN DISTRICT OF KENTUCKY
DID NOT DEPRIVE THE COURT OF JURISDICTION, AND SINCE THE RESPONDENT WAS
PROPERLY SERVED IN THAT DISTRICT, SEE STRAIT V. LAIRD, 406 U.S.
341(1972); SCHLANGER V. SEAMANS, 401 U.S. 487(1971), THE COURT BELOW
ERRED IN ORDERING THE DISMISSAL OF THE PETITION ON JURISDICTIONAL
GROUNDS.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE
IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/0/  MELVIN L. WULF, SANFORD JAY ROSEN, AND JOEL M. GORA FILED A
BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING
REVERSAL. 

/1/  WHITE V. TENNESSEE, 447 F.2D 1354(CA6 1971). 

/2/  COMPARE UNITED STATES EX REL. MEADOWS V. NEW YORK, 426 F.2D
1176(CA2 1970), AND WORD V. NORTH CAROLINA, 406 F.2D 352(CA4 1969)
(PROPER FORUM IS IN THE DEMANDING STATE), WITH UNITED STATES EX REL.
VAN SCOTEN V. PENNSYLVANIA, 404 F.2D 767(CA3 1968), ASHLEY V.
WASHINGTON, 394 F.2D 125(CA9 1968), AND BOOKER V. ARKANSAS, 380 F.2D
240(CA8 1967) (PROPER FORUM IS IN THE STATE OF CONFINEMENT). 

/3/  SEE GENERALLY NOTE, DEVELOPMENTS IN THE LAW-- FEDERAL HABEAS
CORPUS, 83 HARV.L.REV.  1038, 1087-1093(1970). 

/4/  IN SMITH V. HOOEY, 393 U.S. 374(1969), WE CONSIDERED A SPEEDY
TRIAL CLAIM SIMILAR TO THE ONE PRESENTED IN THE CASE BEFORE US, AND WE
HELD THAT A STATE WHICH HAD LODGED A DETAINER AGAINST A PETITIONER IN
ANOTHER STATE MUST, ON THE PRISONER'S DEMAND, "MAKE A DILIGENT, GOOD
FAITH EFFORT" TO BRING THE PRISONER TO TRIAL.  ID., AT 383.  BUT THAT
CASE AROSE ON DIRECT REVIEW OF THE DENIAL OF RELIEF BY THE STATE COURT,
AND WE HAD NO OCCASION TO CONSIDER WHETHER THE SAME OR SIMILAR CLAIMS
COULD HAVE BEEN RAISED ON FEDERAL HABEAS CORPUS.  YET IT LOGICALLY
FOLLOWS FROM PEYTON V. ROWE, 391 U.S. 54(1968), THAT THE CLAIMS CAN BE
RAISED ON COLLATERAL ATTACK.  IN THIS CONTEXT, AS OPPOSED TO THE
SITUATION PRESENTED IN PEYTON, THE "FUTURE CUSTODY" UNDER ATTACK WILL
NOT BE IMPOSED BY THE SAME SOVEREIGN WHICH HOLDS THE PETITIONER IN HIS
CURRENT CONFINEMENT.  NEVERTHELESS, THE CONSIDERATIONS WHICH WERE HELD
IN PEYTON TO WARRANT A PROMPT RESOLUTION OF THE CLAIM ALSO APPLY WITH
FULL FORCE IN THIS CONTEXT.  391 U.S.,AT 63-64.  SEE UNITED STATES EX
REL. MEADOWS V. NEW YORK, SUPRA, AT 1179.  WORD V. NORTH CAROLINA,
SUPRA, AT 353-355.  SINCE THE ALABAMA WARDEN ACTS HERE AS THE AGENT OF
THE COMMONWEALTH OF KENTUCKY IN HOLDING THE PETITIONER PURSUANT TO THE
KENTUCKY DETAINER, WE HAVE NO DIFFICULTY CONCLUDING THAT PETITIONER IS
"IN CUSTODY" FOR PURPOSES OF 28 U.S.C. 2241(C)(3).  ON THE FACTS OF
THIS CASE, WE NEED NOT DECIDE WHETHER, IF NOT DETAINER HAD BEEN ISSUED
AGAINST HIM, PETITIONER WOULD BE SUFFICIENTLY "IN CUSTODY" TO ATTACK
THE KENTUCKY INDICTMENT BY AN ACTION IN HABEAS CORPUS. 

/5/  CF. BAKER V. GRICE, 169 U.S. 284(1898), WHERE THIS COURT HELD
THAT A PETITIONER FOR A WRIT OF HABEAS CORPUS HAD FAILED TO EXHAUST
STATE COURT REMEDIES.  IN REJECTING EACH OF THE GROUNDS RELIED ON BY
THE FEDERAL COURT BELOW IN CONCLUDING THAT SPECIAL CIRCUMSTANCES
WARRANTED THAT COURT'S IMMEDIATE INTERVENTION, THIS COURT STATED: 

"IT IS ALSO SAID THAT SINCE THE TRIAL OF HATHAWAY AND THE GRANTING
OF A NEW TRIAL TO HIM THE CASE OF THE PETITIONER (GRICE) HAS NOT BEEN
CALLED FOR TRIAL, AND THAT TWO TERMS OF COURT SINCE THE GRANTING OF A
NEW TRIAL TO HATHAWAY HAD COME AND THE SECOND ONE WAS ABOUT EXPIRING AT
THE TIME WHEN THE PETITIONER FILED HIS PETITION IN THE CIRCUIT COURT
FOR THIS WRIT.  HERE, AGAIN, THERE IS NO ALLEGATION AND NO PROOF THAT
ANY ATTEMPT HAD BEEN MADE ON THE PART OF THIS PETITIONER TO OBTAIN A
TRIAL IN THE STATE COURT OR THAT HE HAD BEEN REFUSED SUCH TRIAL BY THAT
COURT UPON ANY APPLICATION WHICH HE MADE.  IT IS THE SIMPLE CASE OF A
FAILURE TO CALL THE INDICTMENT FOR TRIAL, THE PETITIONER BEING IN THE
MEANTIME ON BAIL AND MAKING NO EFFORT TO OBTAIN A TRIAL AND EVINCING NO
DESIRE BY WAY OF A DEMAND THAT A TRIAL IN HIS CASE SHOULD BE HAD. 

"WE DO NOT SAY THAT A REFUSAL TO TRY A PERSON WHO IS ON BAIL CAN
FURNISH ANY FOUNDATION FOR A RESORT TO THE FEDERAL COURTS, EVEN IN
CASES IN WHICH A TRIAL MAY INVOLVE FEDERAL QUESTIONS, BUT IN THIS CASE
NO REFUSAL IS SHOWN.  A MERE OMISSION TO MOVE THE CASE FOR TRIAL (THE
PARTY BEING ON BAIL) IS ALL THAT IS SET UP, COUPLED WITH THE ASSERTION
THAT DEFENDANT WAS EAGER AND ANXIOUS FOR TRIAL, BUT SHOWING NO ACTION
WHATEVER ON HIS PART WHICH MIGHT RENDER SUCH ANXIETY AND EAGERNESS
KNOWN TO THE STATE AUTHORITIES."  ID., AT 292-293. 

CF. YOUNG V. RAGEN, 337 U.S. 235, 238-239(1949); MARINO V. RAGEN,
332 U.S. 561, 563-570(1947) (RUTLEDGE, J., CONCURRING).     /6/  SEE
CHAUNCEY V. SECOND JUDICIAL DISTRICT COURT, 453 F.2D 389, 390 N. 1(CA9
1971); BECK V. UNITED STATES, 442 F.2D 1037(CA5 1971); KANE V.
VIRGINIA, 419 F.2D 1369(CA4 1970); MAY V. GEORGIA, 409 F.2D 203(CA5
1969); WHITE V. COLEMAN, 341 F.SUPP.  272, 274(WD KY. 1971) (DICTUM);
UNITED STATES EX REL. PITTS V. RUNDLE, 325 F.SUPP.  480(ED PA. 1971)
(DICTUM); WILLIAMS V. PENNSYLVANIA, 315 F.SUPP.  1261(WD MO. 1970)
(DICTUM); VARALLO V. OHIO, 312 F.SUPP.  45(ED TEX. 1970) (DICTUM);
CAMPBELL V. SMITH, 308 F.SUPP.  796(SD GA. 1970); PIPER V. UNITED
STATES, 306 F.SUPP.  1259(CONN.  1969) (DICTUM); UNITED STATES EX REL.
WHITE V. HOCKER, 306 F.SUPP.  485(NEV.  1969).  BUT SEE LAWRENCE V.
BLACKWELL, 298 F.SUPP.  708(ND GA. 1969); CARNAGE V. SANBORN, 304
F.SUPP.  857(ND GA. 1969); KIRK V. OKLAHOMA, 300 F.SUPP.  453(WD OKLA.
1969) (ALTERNATIVE HOLDING). 

/7/  SEE UNITED STATES V. HAYMAN, 342 U.S. 205(1952), DISCUSSING THE
LEGISLATIVE HISTORY OF 28 U.S.C. 2255; S. REP. NO. 1502, 89TH CONG., 2D
SESS., 2(1966), DISCUSSING 28 U.S.C. 2241(D); UNIFORM POST-CONVICTION
PROCEDURE ACT SEC. 3; AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR
CRIMINAL JUSTICE, POST-CONVICTION REMEDIES SEC. 1.4, P. 28 (APPROVED
DRAFT 1968); NOTE, DEVELOPMENTS IN THE LAW-- FEDERAL HABEAS CORPUS, 83
HARV.L.REV.  1038, 1161(1970). 

/8/  S. REP. NO. 1526, 80TH CONG., 2D SESS., 3(1948). 

/9/ BUT SEE FAIRMAN, SOME NEW PROBLEMS OF THE CONSTITUTION FOLLOWING
THE FLAG, 1 STAN.L.REV.  587, 633-640(1949). 

/10/  ACT OF FEB. 5, 1867, 14 STAT. 385. 

/11/  AS PASSED, THE STATUTE PROVIDED: 

"THAT THE SEVERAL COURTS OF THE UNITED STATES, AND THE SEVERAL
JUSTICES AND JUDGES OF SUCH COURTS, WITHIN THEIR RESPECTIVE
JURISDICTIONS . . . SHALL HAVE POWER TO GRANT WRITS OF HABEAS CORPUS .
. . "  14 STAT. 385. 

/12/  THE AMENDMENT WAS ADOPTED IN 1966. 

/13/  SEE H.R. REP. NO. 1894, 89TH CONG., 2D SESS.(1969); S. REP.
NO. 1502, 89TH CONG., 2D SESS. (1966) (LEGISLATIVE HISTORY OF
AMENDMENTS TO 28 U.S.C. 2241(D)); UNITED STATES V. HAYMAN, 342 U.S.
205(1952) (DISCUSSING LEGISLATIVE HISTORY OF 28 U.S.C. 2255).  OF
COURSE, THESE AMENDMENTS WERE NOT MOTIVATED SOLELY BY A DESIRE TO
INSURE THAT THE DISPUTES COULD BE RESOLVED IN THE MOST CONVENIENT
FORUM.  IT WAS ALSO A CRITICAL PART OF THE CONGRESSIONAL PURPOSE TO
AVOID THE VASTLY DISPROPORTIONATE BURDEN OF HANDLING HABEAS CORPUS
PETITIONS WHICH HAD FALLEN, PRIOR TO THE AMENDMENTS, ON THOSE DISTRICTS
IN WHICH LARGE NUMBERS OF PRISONERS ARE CONFINED. 

/14/  SEE NOTE, DEVELOPMENTS IN THE LAW-- FEDERAL HABEAS CORPUS, 83
HARV.L.REV.  1038, 1189-1191(1970). 

/15/  NOTHING IN THIS OPINION SHOULD BE TAKEN TO PRECLUDE THE
EXERCISE OF CONCURRENT HABEAS CORPUS JURISDICTION OVER THE PETITIONER'S
CLAIM BY A FEDERAL DISTRICT COURT IN THE DISTRICT OF CONFINEMENT.  BUT
AS WE HAVE MADE CLEAR ABOVE, THAT FORUM WILL NOT IN THE ORDINARY CASE
PROVE AS CONVENIENT AS THE DISTRICT COURT IN THE STATE WHICH HAS LODGED
THE DETAINER.  WHERE A PRISONER BRINGS AN ACTION IN THE DISTRICT OF
CONFINEMENT ATTACKING A DETAINER LODGED BY ANOTHER STATE, THE COURT
CAN, OF COURSE, TRANSFER THE SUIT TO A MORE CONVENIENT FORUM.  28
U.S.C. 1404(1).  HOFFMAN V. BLASKI, 363 U.S. 335(1960). 

/16/  OBVIOUSLY, SINCE PETITIONER COULD NOT HAVE PRESENTED HIS
HABEAS CORPUS CLAIM PRIOR TO 1968 DECISION IN PEYTON V. ROWE, SUPRA,
AND SINCE THE CHOICE-OF-FORUM PROVISIONS IN THE HABEAS CORPUS STATUTE
WERE MOST RECENTLY AMENDED IN 1966, SEE N. 13, SUPRA, WE CAN HARDLY
DRAW ANY INFERENCE FROM THE FACT THAT THE AMENDMENT DID NOT
SPECIFICALLY OVERRULE AHRENS WITH RESPECT TO THE TYPE OF CASE NOW
BEFORE US. 

/17/  IN NELSON V. GEORGE, 399 U.S. 224, 228 N. 5(1970), WE ADVERTED
TO, BUT RESERVED JUDGMENT ON, THE PRECISE QUESTION AT ISSUE HERE.  WE
DID POINT OUT, HOWEVER, THAT THE "OBVIOUS, LOGICAL, AND PRACTICAL
SOLUTION IS AN AMENDMENT TO SEC. 2241 TO REMEDY THE SHORTCOMING THAT
HAS BECOME APPARENT FOLLOWING THE HOLDING IN PEYTON V. ROWE.  SOUND
JUDICIAL ADMINISTRATION CALLS FOR SUCH AN AMENDMENT."  WE NOTE THAT AN
AMENDMENT TO SEC. 2241 DRAFTED BY THE ADMINISTRATIVE CONFERENCE OF THE
UNITED STATES COURTS WAS INTRODUCED DURING THE 92D CONGRESS, BUT NO
ACTION WAS TAKEN UPON IT. 

MR. JUSTICE BLACKMUN, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT.  THE CONCLUSION THE COURT REACHES IS NOT
UNEXPECTED WHEN ONE NOTES THE EXTRAORDINARY EXPANSION OF THE CONCEPT OF
HABEAS CORPUS EFFECTED IN RECENT YEARS.  SEE EX PARTE HULL, 312 U.S.
546(1941); EX PARTE ENDO, 323 U.S. 283(1944); JONES V. CUNNINGHAM, 371
U.S. 236(1963); PEYTON V. ROWE, 391 U.S. 54(1968); CARAFAS V. LAVALLEE,
391 U.S. 234(1968); NELSON V. GEORGE, 399 U.S. 224(1970).  CF.
SCHLANGER V. SEAMANS, 401 U.S. 487(1971).  A TREND OF THIS KIND, ONCE
BEGUN, EASILY ASSUMES STARTLING P PROPORTIONS.  THE PRESENT CASE IS BUT
ONE MORE STEP, WITH THE ALABAMA WARDEN NOW MADE THE AGENT OF THE
COMMONWEALTH OF KENTUCKY. 

I DO NOT GO SO FAR AS TO SAY THAT ON THE FACTS OF THIS CASE THE
RESULT IS NECESSARILY WRONG.  I MERELY POINT OUT THAT WE HAVE COME A
LONG WAY FROM THE TRADITIONAL NOTIONS OF THE GREAT WRIT.  THE COMMON
LAW SCHOLARS OF THE PAST HARDLY WOULD RECOGNIZE WHAT THE COURT HAS
DEVELOPED, SEE 4 W. BLACKSTONE, COMMENTARIES *131-134, AND THEY WOULD,
I SUSPECT, CONCLUDE THAT IT IS NOT FOR THE BETTER. 

THE RESULT IN THIS CASE IS NOT WITHOUT ITS IRONY.  THE PETITIONER'S
SPEEDY TRIAL CLAIM FOLLOWS UPON HIS ESCAPE FROM KENTUCKY CUSTODY AFTER
THAT STATE, AT ITS EXPENSE, HAD RETURNED THE PETITIONER FROM CALIFORNIA
TO STAND TRIAL IN KENTUCKY.  HAD HE NOT ESCAPED, HIS KENTUCKY TRIAL
WOULD HAVE TAKEN PLACE FIVE YEARS AGO.  FURTHERMORE, THE PETITIONER IS
FREE TO ASSERT HIS SPEEDY TRIAL CLAIM IN THE KENTUCKY COURTS IF AND
WHEN HE IS BROUGHT TO TRIAL THERE.  AND THE CLAIM, ALREADY STRONG ON
THE FACTS HERE, INCREASES IN STRENGTH AS TIME GOES BY. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
POWELL CONCUR, DISSENTING. 

TODAY THE COURT OVERRULES AHRENS V. CLARK, 335 U.S. 188(1948), WHICH
CONSTRUED THE LEGISLATIVE INTENT OF CONGRESS IN ENACTING THE LINEAL
PREDECESSOR OF 28 U.S.C. 2241.  ALTHOUGH CONSIDERATIONS OF
"CONVENIENCE" MAY SUPPORT THE RESULT REACHED IN THIS CASE, THOSE
CONSIDERATIONS ARE, IN THIS CONTEXT, APPROPRIATE FOR CONGRESS, NOT THIS
COURT, TO MAKE.  CONGRESS HAS NOT LEGISLATIVELY OVERRULED AHRENS, AND
SUBSEQUENT "DEVELOPMENTS" ARE SIMPLY IRRELEVANT TO THE JUDICIAL TASK OF
ASCERTAINING THE LEGISLATIVE INTENT OF CONGRESS IN PROVIDING, IN 1867,
THAT FEDERAL DISTRICT COURTS MAY ISSUE WRITS OF HABEAS CORPUS "WITHIN
THEIR RESPECTIVE JURISDICTIONS" FOR PRISONERS IN THE CUSTODY OF STATE
AUTHORITIES.  THE COURT, HOWEVER, NOT ONLY ACCOMPLISHES A FEAT OF
JUDICIAL PRESTIDIGITATION BUT, WITHOUT DISCUSSION OR ANALYSIS,
EXPLICITLY EXTENDS THE SCOPE OF PEYTON V. ROWE, 391 U.S. 54(1968), AND
IMPLICITLY REJECTS EX PARTE ROYALL, 117 U.S. 241(1886). 

        I 

IN ORDER TO APPRECIATE THE FULL IMPACT OF THE COURT'S DECISION, A
BRIEF REITERATION OF THE PROCEDURAL STANCE OF THE CASE AT THE TIME THE
PETITION FOR HABEAS CORPUS WAS FILED IS NECESSARY.  PETITIONER IS
INCARCERATED IN ALABAMA PURSUANT TO A STATE COURT JUDGMENT, THE
VALIDITY OF WHICH PETITIONER DOES NOT ATTACK.  PETITIONER HAD BEEN
INDICTED IN KENTUCKY AND A DETAINER FILED BY KENTUCKY AUTHORITIES WITH
THE ALABAMA AUTHORITIES.  KENTUCKY HAD CONDUCTED NO PROCEEDINGS AGAINST
PETITIONER; NO JUDGMENT OF CONVICTION ON THE KENTUCKY INDICTMENT HAD
BEEN OBTAINED.  FROM ALABAMA, PETITIONER REQUESTED KENTUCKY AUTHORITIES
TO ASK THE ALABAMA AUTHORITIES TO DELIVER HIM TO KENTUCKY SO THAT
PETITIONER COULD BE TRIED ON THE KENTUCKY INDICTMENT.  NO ACTION WAS
TAKEN ON THIS REQUEST, AND THE KENTUCKY SUPREME COURT REFUSED TO ISSUE
A WRIT OF MANDAMUS REQUIRING KENTUCKY AUTHORITIES TO REQUEST THAT
ALABAMA DELIVER PETITIONER FOR TRIAL IN KENTUCKY.  PETITIONER THEN
FILED THE INSTANT HABEAS CORPUS PROCEEDING IN KENTUCKY, CONTENDING THAT
HE WAS "IN CUSTODY" OF KENTUCKY AUTHORITIES AND THAT THE "CUSTODY" WAS
ILLEGAL BECAUSE HE HAD BEEN DENIED HIS RIGHT TO A SPEEDY TRIAL. 
PETITIONER IS NOT SEEKING TO ATTACK COLLATERALLY A STATE JUDGMENT OF
CONVICTION IN FEDERAL COURT.  IN SUBSTANCE, PETITIONER IS SEEKING,
PRIOR TO TRIAL, TO FORCE THE COMMONWEALTH OF KENTUCKY TO LITIGATE A
QUESTION THAT OTHERWISE COULD ONLY BE RAISED AS AN ABSOLUTE DEFENSE IN
A STATE CRIMINAL PROCEEDING AGAINST PETITIONER. 

        II 

THE FIRST INQUIRY IS WHETHER A STATE PRISONER CAN, PRIOR TO TRIAL,
RAISE THE CLAIM OF THE DENIAL OF A RIGHT TO A SPEEDY TRIAL BY
PETITIONING A FEDERAL COURT FOR WRIT OF HABEAS CORPUS.  THE COURT
REASONS THAT SINCE PEYTON V. ROWE, SUPRA, "DISCARDED THE PREMATURITY
DOCTRINE," ANTE, AT 488, "PETITIONER IS ENTITLED TO RAISE HIS SPEEDY
TRIAL CLAIM ON FEDERAL HABEAS CORPUS." 

PETITIONER FILED THIS PETITION ALLEGING FEDERAL JURISDICTION
PURSUANT TO 28 U.S.C. 2241, 2254.  SECTION 2254 PERTAINS ONLY TO A
PRISONER IN CUSTODY PURSUANT TO A JUDGMENT OF CONVICTION OF A STATE
COURT; IN THE CONTEXT OF THE ATTEMPT TO ASSERT A RIGHT TO A SPEEDY
TRIAL, THERE IS SIMPLY NO SEC. 2254 TRAP TO "ENSNARE" PETITIONER, SUCH
AS THE COURT BELOW FELT EXISTED.  THE ISSUE HERE IS WHETHER HABEAS
CORPUS IS WARRANTED UNDER SEC. 2241(C)(3); THAT SECTION EMPOWERS
DISTRICT COURTS TO ISSUE THE WRIT, INTER ALIA, BEFORE A JUDGMENT IS
RENDERED IN A CRIMINAL PROCEEDING.  IT IS IN THE CONTEXT OF AN
APPLICATION FOR FEDERAL HABEAS CORPUS BY A STATE PRISONER PRIOR TO ANY
TRIAL IN A STATE COURT THAT THE EFFECT OF THE INSTANT DECISION MUST BE
ANALYZED. 

THE COURT REASONS THAT SINCE SMITH V. HOOEY, 393 U.S. 374(1969), HELD
THAT A STATE MUST, CONSISTENT WITH THE SIXTH AND FOURTEENTH AMENDMENTS,
"MAKE A DILIGENT, GOOD-FAITH EFFORT TO BRING" A PRISONER TO TRIAL ON A
STATE INDICTMENT EVEN THOUGH HE IS INCARCERATED IN ANOTHER
JURISDICTION, ID., AT 383, AND, SINCE PEYTON V. ROWE, SUPRA, OVERRULED
"THE PREMATURITY DOCTRINE," THEREFORE, A PRISONER CAN ATTACK IN A
FEDERAL HABEAS CORPUS PROCEEDING THE VALIDITY OF AN INDICTMENT LODGED
AGAINST HIM IN ONE STATE EVEN THOUGH HE IS IMPRISONED IN ANOTHER.  I
CANNOT AGREE WITH THIS REASONING. 

IN SMITH, THIS COURT HELD THAT A STATE MUST MAKE AN EFFORT TO TRY A
PERSON EVEN THOUGH HE WAS INCARCERATED IN ANOTHER JURISDICTION.  THAT
CASE DID NOT, HOWEVER, INVOLVE FEDERAL HABEAS CORPUS.  IT CAME HERE ON
CERTIORARI AFTER THE STATE COURT HAD DENIED A PETITION FOR A WRIT OF
MANDAMUS SEEKING TO HAVE THE UNDERLYING INDICTMENT DISMISSED.  THE
TEXAS SUPREME COURT HAD RULED THAT THE STATE COURTS HAD NO POWER TO
ORDER THE FEDERAL PRISONER PRODUCED FOR TRIAL ON THE STATE INDICTMENT. 
THIS COURT REVERSED, HOLDING THAT, IN VIEW OF THE SIXTH AND FOURTEENTH
AMENDMENT GUARANTEES OF A SPEEDY TRIAL, THE STATE MUST, AFTER DEMAND
THEREFOR, ATTEMPT TO OBTAIN THE PRISONER FROM THE SOVEREIGNTY WITH
CUSTODY OVER THE PRISONER. 

IT BY NO MEANS FOLLOWS, HOWEVER, THAT A STATE PRISONER CAN ASSERT
THE RIGHT TO A SPEEDY TRIAL IN A FEDERAL DISTRICT COURT.  THE
FUNDAMENTAL FLAW IN THE REASONING OF THE COURT IS THE ASSUMPTION THAT
SINCE A PRISONER HAS SOME "RIGHT" UNDER SMITH V. HOOEY, SUPRA, HE MUST
HAVE SOME FORUM IN WHICH AFFIRMATIVELY TO ASSERT THAT RIGHT, AND THAT
THEREFORE THE RIGHT MAY BE VINDICATED IN A FEDERAL DISTRICT COURT UNDER
SEC. 2241(C)(3).  SMITH V. HOOEY DID NOT, HOWEVER, ESTABLISH THAT A
RIGHT DISTINCT FROM THE RIGHT TO A SPEEDY TRIAL EXISTED.  IT MERELY
HELD THAT A STATE COULD NOT TOTALLY RELY ON THE FACT THAT IT COULD NOT
ORDER THAT A PRISONER BE BROUGHT FROM ANOTHER JURISDICTION AS A
JUSTIFICATION FOR NOT ATTEMPTING TO TRY THE DEFENDANT AS EXPEDITIOUSLY
AS POSSIBLE.  THE RIGHT TO A SPEEDY TRIAL IS, LIKE OTHER CONSTITUTIONAL
RIGHTS, A DEFENSE TO A CRIMINAL CHARGE, BUT ONE WHICH, UNLIKE OTHERS,
INCREASES IN TERMS OF POTENTIAL BENEFIT TO THE ACCUSED WITH THE PASSAGE
OF TIME.  BARKER V. WINGO, 407 U.S. 514(1972).  THE FACT THAT A STATE
MUST MAKE AN EFFORT TO OBTAIN A DEFENDANT FROM ANOTHER SOVEREIGN FOR
TRIAL BUT FAILS, AFTER DEMAND, TO MAKE AN EFFORT WOULD WEIGH HEAVILY IN
THE DEFENDANT'S FAVOR.  BUT SMITH V. HOOEY DOES NOT NECESSARILY IMPLY
THAT FEDERAL COURTS MAY, AS THE DISTRICT COURT DID IN THIS CASE, IN
EFFECT, ISSUE AN INJUNCTION REQUIRING A STATE COURT TO CONDUCT A
CRIMINAL TRIAL.  IF THE STATE FAILS TO PERFORM ITS DUTY, SMITH V.
HOOEY, IT MUST FACE THE CONSEQUENCES OF POSSIBLY NOT OBTAINING A
CONVICTION, BARKER V. WINGO.  BUT THE FACT THAT THE STATE HAS A DUTY BY
NO MEANS LEADS TO THE CONCLUSION THAT THE FAILURE TO PERFORM THAT DUTY
CAN BE RAISED BY A PROSPECTIVE DEFENDANT ON FEDERAL HABEAS CORPUS IN
ADVANCE OF TRIAL.  THE HISTORY OF HABEAS CORPUS AND THE PRINCIPLES OF
FEDERALISM STRONGLY SUPPORT THE APPROACH ESTABLISHED BY EX PARTE
ROYALL, SUPRA, THAT, ABSENT EXTRAORDINARY CIRCUMSTANCES, FEDERAL HABEAS
CORPUS SHOULD NOT BE USED TO ADJUDICATE THE MERITS OF AN AFFIRMATIVE
DEFENSE TO A STATE CRIMINAL CHARGE PRIOR TO A JUDGMENT OF CONVICTION BY
A STATE COURT. 

THE COURT'S REASONING FOR ALLOWING A STATE PRISONER TO RESORT TO
FEDERAL HABEAS CORPUS IS THAT THE PRISONER IS ATTACKING THE VALIDITY OF
A "FUTURE CUSTODY."  THE COURT RELIES ON PEYTON TO JUSTIFY FEDERAL
JURISDICTION.  PEYTON, HOWEVER, WAS IN A SIGNIFICANTLY DIFFERENT
PROCEDURAL POSTURE FROM THE INSTANT CASE.  THERE, THE COURT HELD THAT A
STATE PRISONER COULD CHALLENGE THE CONSTITUTIONAL VALIDITY OF A
SENTENCE WHICH HE HAD NOT YET BEGUN TO SERVE WHEN HE WAS CURRENTLY
INCARCERATED PURSUANT TO A VALID CONVICTION AND SENTENCE, BUT THE
SENTENCE HE SOUGHT TO ATTACK WAS TO RUN CONSECUTIVELY TO THE VALID
SENTENCE.  EVEN THOUGH A PERSON MAY BE "IN CUSTODY" FOR PURPOSES OF
SECS. 2241(C)(3), OR 2254, IF HE HAS NOT YET BEGUN TO SERVE A SENTENCE
ENTERED AFTER A JUDGMENT OF CONVICTION, AS THE COURT HELD IN PEYTON, IT
BY NO MEANS FOLLOWS THAT HE IS SIMILARLY "IN CUSTODY" WHEN NO JUDGMENT
OF CONVICTION HAS BEEN ENTERED OR EVEN ANY TRIAL ON THE UNDERLYING
CHARGE CONDUCTED.  THE COURT'S SUGGESTION THAT A PERSON MAY CHALLENGE
BY WAY OF FEDERAL HABEAS CORPUS ANY CUSTODY THAT MIGHT POSSIBLY BE
IMPOSED AT SOME TIME IN THE "FUTURE," WHICH SUGGESTION UNWARRANTEDLY
ASSUMES BOTH THAT A CONSTITUTIONAL DEFENSE WILL BE REJECTED AND THAT
THE JURY WILL CONVICT, IS NOT SUPPORTED BY THE LANGUAGE OR REASONING OF
PEYTON.  MR. CHIEF JUSTICE WARREN, WRITING FOR THE COURT IN PEYTON,
EMPHASIZED THE ROLE OF FEDERAL HABEAS CORPUS FOR STATE PRISONERS AS
"SUBSTANTIALLY A POST-CONVICTION DEVICE," 391 U.S.,AT 60, AND "THE
INSTRUMENT FOR RESOLVING FACT ISSUES NOT ADEQUATELY DEVELOPED IN THE
ORIGINAL PROCEEDINGS."  ID., AT 63.  THE COURT THERE STATED THAT THE
DEMISE OF THE MCNALLY RULE WOULD ALLOW PRISONERS "THE OPPORTUNITY TO
CHALLENGE DEFECTIVE CONVICTIONS."  ID., AT 65. 

THE COURT HERE GLOSSES OVER THE DISPARATE PROCEDURAL POSTURE OF THIS
CASE, AND MERELY ASSERTS, WITHOUT ANALYZING THE HISTORICAL FUNCTION OF
FEDERAL HABEAS CORPUS FOR STATE PRISONERS, THAT THE RATIONALE OF PEYTON
IS APPLICABLE TO A PRETRIAL, PRECONVICTION SITUATION.  CITATION TO THAT
DECISION CANNOT OBSCURE THE FACT THAT THE COURT HERE MAKES A
SIGNIFICANT DEPARTURE FROM PREVIOUS DECISIONS, A DEPARTURE THAT
CERTAINLY REQUIRES ANALYSIS AND JUSTIFICATION MORE DETAILED THAN THAT
WHICH THE COURT PUTS FORTH. 

THERE IS NO DOUBT THAT A PRISONER SUCH AS PETITIONER CAN ASSERT, BY
APPROPRIATE MOTION IN THE COURTS OF THE STATE IN WHICH THE INDICTMENT
WAS HANDED DOWN, THAT HE SHOULD BE BROUGHT TO TRIAL ON THAT CHARGE. 
SMITH V. HOOEY, SUPRA.  THERE IS ALSO NO DOUBT THAT SUCH A PRISONER MAY
PETITION A FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS CORPUS PRIOR TO
TRIAL.  SEE 28 U.S.C. 2241(C)(3).  WHAT THE COURT HERE DISREGARDS,
HOWEVER, IS ALMOST A CENTURY OF DECISIONS OF THIS COURT TO THE EFFECT
THAT FEDERAL HABEAS CORPUS FOR STATE PRISONERS, PRIOR TO CONVICTION,
SHOULD NOT BE GRANTED ABSENT TRULY EXTRAORDINARY CIRCUMSTANCES. 

IN EX PARTE ROYALL, SUPRA, THE PETITIONER WAS INDICTED IN STATE
COURT FOR SELLING A BOND COUPON WITHOUT A LICENSE.  PRIOR TO TRIAL ON
THAT INDICTMENT, HE PETITIONED IN FEDERAL COURT FOR A WRIT OF HABEAS
CORPUS, CONTENDING THAT THE STATUTE UPON WHICH THE INDICTMENT WAS
PREDICATED VIOLATED THE CONTRACT CLAUSE, INSOFAR AS IT WAS APPLIED TO
OWNERS OF COUPONS.  IN HOLDING THAT THE (THEN) CIRCUIT COURT HAD THE
POWER TO ISSUE THE WRIT BUT HAD PROPERLY EXERCISED ITS DISCRETION NOT
TO DO SO, THE COURT WROTE: 

"THAT DISCRETION SHOULD BE EXERCISED IN THE LIGHT OF THE RELATIONS
EXISTING, UNDER OUR SYSTEM OF GOVERNMENT, BETWEEN THE JUDICIAL
TRIBUNALS OF THE UNION AND OF THE STATES, AND IN RECOGNITION OF THE
FACT THAT THE PUBLIC GOOD REQUIRES THAT THOSE RELATIONS BE NOT
DISTURBED BY UNNECESSARY CONFLICT BETWEEN COURTS EQUALLY BOUND TO GUARD
AND PROTECT RIGHTS SECURED BY THE CONSTITUTION."  117 U.S.,AT 251.  THE
JUDICIAL APPROACH SET FORTH IN EX PARTE ROYALL-- THAT FEDERAL COURTS
SHOULD NOT, ABSENT EXTRAORDINARY CIRCUMSTANCES, INTERFERE WITH THE
JUDICIAL ADMINISTRATION AND PROCESS OF STATE COURTS PRIOR TO TRIAL AND
CONVICTION, EVEN THOUGH THE STATE PRISONER CLAIMS THAT HE IS HELD IN
VIOLATION OF THE CONSTITUTION-- HAS BEEN CONSISTENTLY FOLLOWED.  COOK
V. HART, 146 U.S. 183(1892) (CUSTODY ALLEGED TO VIOLATE ART. 4, SEC.
2); NEW YORK V. ENO, 155 U.S. 89(1894) (CUSTODY ALLEGED TO VIOLATE
SUPREMACY CLAUSE); WHITTEN V. TOMLINSON, 160 U.S. 231(1895) (CUSTODY
ALLEGED IN VIOLATION OF CONSTITUTION DUE TO IMPROPER EXTRADITION);
DRURY V. LEWIS, 200 U.S. 1(1906) (CUSTODY ALLEGED TO VIOLATE SUPREMACY
CLAUSE).  CF. EX PARTE FONDA, 117 U.S. 516(1886); IN RE DUNCAN, 139
U.S. 449(1891); IN RE WOOD, 140 U.S. 278(1891); IN RE FREDERICH, 149
U.S. 70(1893).  THE SITUATIONS IN WHICH PRETRIAL OR PRECONVICTION
FEDERAL INTERFERENCE BY WAY OF HABEAS CORPUS WITH STATE CRIMINAL
PROCESSES IS JUSTIFIED INVOLVE THE LACK OF JURISDICTION, UNDER THE
SUPREMACY CLAUSE, FOR THE STATE TO BRING ANY CRIMINAL CHARGES AGAINST
THE PETITIONER.  WILDENHUS'S CASE, 120 U.S. 1(1887); IN RE LONEY, 134
U.S. 372(1890); IN RE NEAGLE, 135 U.S. 1(1890). 

THE EFFECT OF TODAY'S RULING THAT FEDERAL HABEAS CORPUS PRIOR TO
TRIAL IS APPROPRIATE BECAUSE IT WILL DETERMINE THE VALIDITY OF CUSTODY
THAT MAY BE IMPOSED IN ACTUALITY ONLY SOMETIME IN THE INDEFINITE FUTURE
CONSTITUTES AN UNJUSTIFIABLE FEDERAL INTERFERENCE WITH THE JUDICIAL
ADMINISTRATION OF A STATE'S CRIMINAL LAWS.  THE USE OF FEDERAL HABEAS
CORPUS IS, PRESUMABLY, LIMITED NEITHER TO THE INTERSTATE DETAINER
SITUATION NOR TO THE CONSTITUTIONAL RIGHTS SECURED BY THE SIXTH AND
FOURTEENTH AMENDMENTS.  THE SAME REASONING WOULD APPLY TO A STATE
PRISONER WHO ALLEGES THAT "FUTURE CUSTODY" WILL RESULT BECAUSE THE
STATE PLANS TO INTRODUCE AT A CRIMINAL TRIAL SOMETIME IN THE FUTURE A
CONFESSION ALLEGEDLY OBTAINED IN VIOLATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS, OR EVIDENCE OBTAINED IN VIOLATION OF THE FOURTH AND
FOURTEENTH AMENDMENTS.  I THOROUGHLY DISAGREE WITH THIS CONVERSION OF
FEDERAL HABEAS CORPUS INTO A PRETRIAL-MOTION FORUM FOR STATE
PRISONERS. 

        III 

IN ADDITION TO SANCTIONING AN EXPANSION OF WHEN A FEDERAL COURT MAY
INTERFERE WITH STATE JUDICIAL ADMINISTRATION, THE COURT OVERRULES
AHRENS V. CLARK, SUPRA, AND EXPANDS THE PARAMETERS OF WHICH FEDERAL
COURTS MAY SO INTERVENE.  IN AHRENS, THE COURT HELD THAT "THE PRESENCE
WITHIN THE TERRITORIAL JURISDICTION OF THE DISTRICT COURT OF THE PERSON
DETAINED IS (A) PREREQUISITE TO FILING A PETITION FOR WRIT OF HABEAS
CORPUS."  335 U.S.,AT 189.  THE COURT CONSTRUED THE PHRASE "WITHIN
THEIR RESPECTIVE JURISDICTIONS" TO MEAN THAT CONGRESS INTENDED TO LIMIT
THE JURISDICTION OF A DISTRICT COURT TO PRISONERS IN CUSTODY WITHIN ITS
TERRITORIAL JURISDICTION.  ID., AT 193. 

THE COURT HERE SAYS THAT THE "LANGUAGE" OF AHRENS "INDICATES" THE
RESULT REACHED BELOW.  THE EXPLICIT HOLDING OF THE COURT, HOWEVER, IS
PLAINLY MUCH MORE THAT AN "INDICATION." 

"THUS THE VIEW THAT THE JURISDICTION OF THE DISTRICT COURT TO ISSUE
THE WRIT IN CASES SUCH AS THIS IS RESTRICTED TO THOSE PETITIONERS WHO
ARE CONFINED OR DETAINED WITHIN THE TERRITORIAL JURISDICTION OF THE
COURT IS SUPPORTED BY THE LANGUAGE OF THE STATUTE, BY CONSIDERATIONS OF
POLICY, AND BY THE LEGISLATIVE HISTORY OF THE ENACTMENT.  WE THEREFORE
DO NOT FEEL FREE TO WEIGH THE POLICY CONSIDERATIONS WHICH ARE ADVANCED
FOR GIVING DISTRICT COURTS DISCRETION IN CASES LIKE THIS.  IF THAT
CONCEPT IS TO BE IMPORTED INTO THIS STATUTE, CONGRESS MUST DO SO." 
ID., AT 192-193. 

THE RESULT REACHED TODAY MAY BE DESIRABLE FROM THE POINT OF VIEW OF
SOUND JUDICIAL ADMINISTRATION, SEE AHRENS V. CLARK, SUPRA, AT 191;
NELSON V. GEORGE, 399 U.S. 224, 228 N. 5(1970).  IT IS THE FUNCTION OF
THIS COURT, HOWEVER, TO ASCERTAIN THE INTENT OF CONGRESS AS TO THE
MEANING OF "WITHIN THEIR RESPECTIVE JURISDICTIONS."  HAVING COMPLETED
THAT TASK IN AHRENS, IT IS THE FUNCTION OF CONGRESS TO AMEND THE
STATUTE IF THIS COURT MISINTERPRETED CONGRESSIONAL INTENT OR IF
SUBSEQUENT DEVELOPMENTS SUGGEST THE DESIRABILITY, FROM A POLICY
VIEWPOINT, OF ALTERATIONS IN THE STATUTE.  SEE CLEVELAND V. UNITED
STATES, 329 U.S. 14(1946).  WE NOTED IN NELSON THAT THE RESOLUTION OF
ANY APPARENT DILEMMA "CAUSED" BY THIS COURT'S HOLDING IN AHRENS IS
APPROPRIATELY ONE TO BE UNDERTAKEN BY CONGRESS.  399 U.S.,AT 228 N. 5. 
LEGISLATIVE "INACTION" IN AMENDING A STATUTE TO COMPORT WITH THIS
COURT'S EVALUATION OF "(SOUND JUDICIAL ADMINISTRATION" HARDLY WARRANTS
THE DISINGENUOUS READING OF A PREVIOUS DECISION TO ACHIEVE THE RESULT
THAT CONGRESS, DESPITE JUDICIAL PRODDING, HAS REFUSED TO MANDATE. 
HOWEVER IMPATIENT WE MAY BE WITH A FEDERAL STATUTE WHICH SOMETIMES MAY
FAIL TO PROVIDE A REMEDY FOR EVERY SITUATION, ONE WOULD HAVE THOUGHT IT
INAPPROPRIATE FOR THE COURT TO AMEND THE STATUTE BY JUDICIAL ACTION. 

THE COURT LISTS SEVERAL "DEVELOPMENTS" THAT HAVE SOMEHOW UNDERCUT
THE VALIDITY, IN THE COURT'S OPINION, OF THE STATUTORY INTERPRETATION
OF THE PHRASE "WITHIN THEIR RESPECTIVE JURISDICTIONS."  AS THE AMENDED
SEC. 2255 IS RELEVANT ONLY TO FEDERAL PRISONERS COLLATERALLY ATTACKING
A CONVICTION, AND AS SEC. 2241(D) APPLIES ONLY TO INTRASTATE
JURISDICTION, THE RELEVANCE OF THE AMENDMENTS WITH RESPECT TO THE
JURISDICTIONAL REQUIREMENT OF SEC. 2241(C)(3) IS NOT A LITTLE OBSCURE. 
THE INTERPRETATION OF THE PHRASE "WITHIN THEIR RESPECTIVE
JURISDICTIONS" IN AHRENS IS HARDLY INCOMPATIBLE WITH THESE RECENT
AMENDMENTS OF STATUTES DEALING WITH SITUATIONS NOT INVOLVING THE
INTERSTATE TRANSPORTATION OF STATE PRISONERS.  THE FURTHER ARGUMENT
THAT BURNS V. WILSON, 346 U.S. 137(1953), "UNDERMINES" AHRENS OVERLOOKS
THE FACT THAT THE COURT IN AHRENS SPECIFICALLY RESERVED THAT QUESTION,
335 U.S.,AT 192 N. 4, THE RESOLUTION OF WHICH IS BY NO MEANS AN
EXPLICIT REJECTION OF AHRENS.  FINALLY, THE FACT THAT THIS COURT HAS
EXPANDED THE NOTION OF "CUSTODY"  FOR HABEAS CORPUS PURPOSES HARDLY
SUPPORTS, MUCH LESS COMPELS, THE REJECTION OF A STATUTORY CONSTRUCTION
OF AN UNRELATED PHRASE. 

IN THE FINAL ANALYSIS, THE COURT APPARENTLY REASONS THAT SINCE
CONGRESS AMENDED OTHER STATUTORY PROVISIONS DEALING WITH HABEAS CORPUS,
THEREFORE THE CONGRESSIONAL INTENT WITH RESPECT TO THE MEANING OF AN
UNAMENDED PHRASE MUST SOMEHOW HAVE CHANGED SINCE THE COURT PREVIOUSLY
ASCERTAINED THAT INTENT.  THIS APPROACH TO STATUTORY CONSTRUCTION,
HOWEVER, JUSTIFIES WITH AS MUCH, IF NOT MORE, FORCE, THE RESULT REACHED
BELOW:  CONGRESS, AWARE OF THIS COURT'S INTERPRETATION OF THE PHRASE IN
AHRENS, DELIBERATELY CHOSE NOT TO AMEND SEC. 2241(C)(3) WHEN IT
SELECTIVELY AMENDED OTHER STATUTORY PROVISIONS DEALING WITH FEDERAL
HABEAS CORPUS.  INDEED, THE MOST RECENT INDICATIONS OF LEGISLATIVE
INTENT SUPPORT THIS CONCLUSION RATHER THAN THAT ADVANCED BY THE COURT. 
SEE H.R. REP. NO. 1894, 89TH CONG., 2D SESS., 1-2(1966); S. REP. NO.
1502, 89TH CONG., 2D SESS. (1966).  SEE ALSO N. 13, ANTE, AT 497. 

I WOULD ADHERE TO THIS COURT'S INTERPRETATION OF THE LEGISLATIVE
INTENT SET FORTH IN AHRENS V. CLARK, SUPRA, AND LEAVE IT TO CONGRESS,
DURING THE PROCESS OF CONSIDERING LEGISLATION TO AMEND THIS SECTION, TO
CONSIDER AND TO WEIGH THE VARIOUS POLICY FACTORS THAT THE COURT TODAY
WEIGHS FOR ITSELF. 

DAVID R. HOOD ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

JOHN M. FAMULARO, ASSISTANT ATTORNEY GENERAL OF KENTUCKY, ARGUED THE
CAUSE FOR RESPONDENT PRO HAC VICE.  WITH HIM ON THE BRIEF WAS ED W.
HANCOCK, ATTORNEY GENERAL.  /0/
..END :



BRENNAN V. ARNHEIM & NEELY, INC., 410 U.S. 512 


       BRENNAN, SECRETARY OF LABOR V. ARNHEIM & NEELY, INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 71-1598.  ARGUED JANUARY 16, 1973-- DECIDED FEBRUARY
28,

        1973 


RESPONDENT COMPANY, A FULLY INTEGRATED REAL ESTATE MANAGEMENT CONCERN
DIRECTING FROM ITS CENTRAL OFFICE MANIFOLD OPERATIONS AT NINE
SEPARATELY OWNED BUILDINGS, INCLUDING LEASING THE PROPERTIES FOR THE
OWNERS AND HIRING, FIRING, SUPERVISING, AND NEGOTIATING THE WAGES OF
THOSE EMPLOYED IN THE BUILDINGS, HELD TO BE AN "ENTERPRISE" WITHIN THE
MEANING OF SEC. 3(R) OF THE FAIR LABOR STANDARDS ACT SINCE RESPONDENT
CONDUCTS RELATED ACTIVITIES THROUGH UNIFIED OPERATION OR CONTROL, FOR A
COMMON BUSINESS PURPOSE.  IT IS IRRELEVANT, FOR PURPOSES OF DEFINING
THE RESPONDENT'S ENTERPRISE UNDER SEC. 3(R), THAT THE BUILDING OWNERS,
WHO ARE NOT DEFENDANTS IN THIS ENFORCEMENT ACTION UNDER THE ACT, HAVE
NO RELATIONSHIP WITH ONE ANOTHER AND NO COMMON BUSINESS PURPOSE, SINCE
THEIR ACTIVITIES AS EMPLOYERS ARE NOT AT ISSUE HERE.  PP. 516-521. 

444 F.2D 609, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, BRENNAN, MARSHALL, BLACKMUN, POWELL, AND REHNQUIST,
JJ., JOINED.  WHITE, J., FILED A DISSENTING OPINION, POST, P. 521. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE BEGAN WHEN THE SECRETARY OF LABOR SUED THE RESPONDENT REAL
ESTATE MANAGEMENT COMPANY FOR ALLEGED VIOLATIONS OF THE FAIR LABOR
STANDARDS ACT OF 1938, AS AMENDED, 52 STAT. 1060, 29 U.S.C. 201 ET SEQ.
THE SECRETARY SOUGHT AN INJUNCTION AGAINST FUTURE VIOLATIONS OF THE
MINIMUM WAGE, OVERTIME, AND RECORDKEEPING PROVISIONS OF THE ACT, AS
WELL AS BACK WAGES FOR THE AFFECTED EMPLOYEES.  AN EMPLOYEE IS ENTITLED
TO THE BENEFITS OF THE MINIMUM WAGE AND MAXIMUM HOURS PROVISIONS OF THE
ACT IF HE IS, INTER ALIA, "EMPLOYED IN AN ENTERPRISE ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE . . . "  29 U.S.C.
206(A), 207(A). 

AS STIPULATED IN THE DISTRICT COURT, THE RESPONDENT COMPANY MANAGES
EIGHT COMMERCIAL OFFICE BUILDINGS AND ONE APARTMENT COMPLEX IN THE
PITTSBURGH AREA.  WITH THE EXCEPTION OF A MINOR OWNERSHIP INTEREST IN
ONE OF THE BUILDINGS, THE RESPONDENT DOES NOT OWN THESE PROPERTIES. 
ITS SERVICES ARE PROVIDED ACCORDING TO MANAGEMENT CONTRACTS ENTERED
INTO WITH THE OWNERS.  UNDER THESE CONTRACTS, THE RESPONDENT OBTAINS
TENANTS FOR THE BUILDINGS, NEGOTIATES AND SIGNS LEASES, INSTITUTES
WHATEVER LEGAL ACTIONS ARE NECESSARY WITH RESPECT TO THESE LEASES, AND
GENERALLY MANAGES AND MAINTAINS THE PROPERTIES.  THE RESPONDENT
COLLECTS RENTAL PAYMENTS ON BEHALF OF THE OWNERS, AND DEPOSITS THEM IN
SEPARATE BANK ACCOUNTS FOR EACH BUILDING.  THESE ACCOUNTS, NET OF
MANAGEMENT EXPENSES AND THE RESPONDENT'S FEES, BELONG TO THE OWNERS OF
THE PROPERTIES.  PAYMENTS ARE PERIODICALLY MADE FROM THE ACCOUNTS TO
THESE OWNERS. 

THE RESPONDENT'S SERVICES WITH RESPECT TO THE SUPERVISORY,
MAINTENANCE, AND JANITORIAL STAFFS OF THE BUILDINGS ARE SIMILARLY
EXTENSIVE.  THE RESPONDENT CONDUCTS THE HIRING, FIRING, PAYROLL
OPERATIONS, AND JOB SUPERVISION OF THOSE EMPLOYED IN THE BUILDINGS.  IT
ALSO FIXES HOURS OF WORK, AND NEGOTIATES RATES OF PAY AND FRINGE
BENEFITS-- SUBJECT TO THE APPROVAL OF THE OWNERS.  THE RESPONDENT
ENGAGES IN COLLECTIVE BARGAINING ON BEHALF OF THE OWNERS WHERE THE
BUILDING EMPLOYEES ARE UNIONIZED.  324 F.SUPP.  987, 990-991. 

THE DISTRICT COURT HELD THAT THE MAINTENANCE, CUSTODIAL, AND
OPERATIONAL WORKERS AT THE BUILDINGS MANAGED BY THE RESPONDENT WERE
"EMPLOYEES," AND THAT THE RESPONDENT WAS AN "EMPLOYER," WITHIN THE
MEANING OF SECS. 3(D) AND 3(E) OF THE ACT, 29 U.S.C. 203(D), (E).  324
F.SUPP.,AT 990-993.  THE DISTRICT COURT ALSO HELD THAT GROSS RENTALS,
RATHER THAN COMMISSIONS OBTAINED, WERE THE PROPER MEASURE OF "ANNUAL
GROSS VOLUME OF SALES MADE OR BUSINESS DONE" FOR PURPOSES OF THE DOLLAR
VOLUME PORTION OF THE STATUTORY DEFINITION OF AN "ENTERPRISE ENGAGED IN
COMMERCE."  ID., AT 993-994.  /1/  THOUGH IT REJECTED THE CLAIM THAT
THE RESPONDENT WAS SUFFICIENTLY ENGAGED IN COMMERCE FOR ITS EMPLOYEES
TO BE COVERED FOR THE TIME BEFORE THE 1966 AMENDMENTS TO THE ACT WENT
INTO EFFECT, /2/  THE DISTRICT COURT DETERMINED THAT THE AGGREGATE
ACTIVITIES OF THE RESPONDENT AT ALL NINE LOCATIONS WERE "RELATED,"
PERFORMED UNDER "COMMON CONTROL," AND FOR "A COMMON BUSINESS PURPOSE,"
THEREBY CONSTITUTING AN "ENTERPRISE" WITHIN THE MEANING OF SEC. 3(R),
29 U.S.C. 203(R).  324 F.SUPP.,AT 994-995. 

ON CROSS APPEALS, THE COURT OF APPEALS FOR THE THIRD CIRCUIT
AFFIRMED THE DISTRICT COURT'S DETERMINATION THAT THE RESPONDENT IS AN
"EMPLOYER" OF THE BUILDING "EMPLOYEES," AND ALSO AFFIRMED THE USE OF
GROSS RENTALS OF THE BUILDINGS AS THE PROPER MEASURE OF "GROSS SALES." 
444 F.2D 609, 611-612.  THE COURT OF APPEALS HELD THAT THE DISTRICT
COURT ERRED, HOWEVER, IN AGGREGATING THE GROSS RENTALS OF THE NINE
PROPERTIES TO DETERMINE THE "GROSS SALES" OF THE RESPONDENT'S
"ENTERPRISE."  RECOGNIZING THAT ITS DECISION CONFLICTED WITH A
SUBSTANTIALLY IDENTICAL CASE IN THE FOURTH CIRCUIT, SHULTZ V. FALK, 439
F.2D 340, THE COURT OF APPEALS HELD THAT BEFORE SEPARATE ESTABLISHMENTS
COULD BE DEEMED PART OF A SINGLE ENTERPRISE, A SHOWING OF COMMON
BUSINESS PURPOSE WAS REQUIRED.  444 F.2D, AT 613. 

     "IF THE RECORD IN THIS CASE REVEALED THAT THE RETENTION OF THE

 COMPANY, AS AGENT, WERE ACCOMPANIED BY A CHANGE IN THE

INDEPENDENT BUSINESS PURPOSES OF THE OWNERS-- FOR EXAMPLE FACTS

  SUCH AS THE POOLING OF PROFITS FROM THE VARIOUS BUILDINGS

  DEMONSTRATING A COMMON BUSINESS PURPOSE-- THE RESULT MIGHT BE

  DIFFERENT.  HERE, HOWEVER, THE RECORD REVEALS THAT THE OWNERS

  SHARE NO COMMON PURPOSE EXCEPT THE DECISION TO HIRE THE COMPANY

  AS THEIR RENTAL OR MANAGEMENT AGENT . . . WITHOUT MORE THAN HERE

  PRESENTED, WE THINK THE 'ENTERPRISE' REQUIREMENT OF THE ACT HAS

  NOT BEEN SATISFIED."  ID., AT 614. 

WITHOUT REACHING THE ISSUES REGARDING THE RESPONDENT'S ENGAGEMENT IN
COMMERCE PRIOR TO 1967, THE COURT OF APPEALS REVERSED AND REMANDED FOR
PROOF OF THE INDIVIDUAL GROSS RENTALS OF THE BUILDINGS.  IBID.  IN
ORDER TO RESOLVE THE INTERCIRCUIT CONFLICT, WE GRANTED THE SECRETARY'S
PETITION FOR CERTIORARI, 409 U.S. 840, WHICH RAISES THE QUESTION
WHETHER THE MANAGEMENT ACTIVITIES OF THE RESPONDENT AT ALL OF THE
BUILDINGS SERVED SHOULD BE AGGREGATED AS PART OF A SINGLE "ENTERPRISE"
WITHIN THE MEANING OF SEC. 3(R) OF THE ACT.  SINCE NO CROSS-PETITION
FOR CERTIORARI WAS FILED BY THE RESPONDENT, THE IMPORTANT ISSUES OF
WHETHER THE RESPONDENT IS IN FACT AN "EMPLOYER" OF THE BUILDING WORKERS
WITHIN THE MEANING OF THE ACT, AND WHETHER GROSS RENTALS RATHER THAN
GROSS COMMISSIONS SHOULD SERVE AS THE MEASURE OF "GROSS SALES," ARE NOT
BEFORE US.  /3/ 

THE CONCEPT OF "ENTERPRISE" UNDER THE FAIR LABOR STANDARDS ACT CAME
INTO BEING WITH THE 1961 AMENDMENTS, WHICH SUBSTANTIALLY BROADENED THE
COVERAGE OF THE ACT.  RATHER THAN CONFINING THE PROTECTIONS OF THE ACT
TO EMPLOYEES WHO WERE THEMSELVES "ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE," 29 U.S.C. 206(A), 207(A), THE NEW
AMENDMENTS BROUGHT THOSE "EMPLOYED IN AN ENTERPRISE ENGAGED IN
COMMERCE" WITHIN THE AMBIT OF THE MINIMUM WAGE AND MAXIMUM HOURS
PROVISIONS.  /4/  THE CONGRESS DEFINED "ENTERPRISE ENGAGED IN COMMERCE"
TO INCLUDE A DOLLAR VOLUME LIMITATION.  THE STANDARD IN THE ORIGINAL
AMENDMENTS INCLUDED "ANY SUCH ENTERPRISE WHICH HAS ONE OR MORE RETAIL
OR SERVICE ESTABLISHMENTS IF THE ANNUAL GROSS VOLUME OF SALES OF SUCH
ENTERPRISE IS NOT LESS THAN $1,000,000 . . . ," 75 STAT. 66, AND HAS
SINCE BEEN CHANGED TO INCLUDE ENTERPRISES "WHOSE ANNUAL GROSS VOLUME OF
SALES MADE OR BUSINESS DONE IS NOT LESS THAN $500,000" FOR THE PERIOD
FROM FEBRUARY 1, 1967, TO JANUARY 31, 1969, AND THOSE WITH ANNUAL GROSS
SALES OF NOT LESS THAN $250,000 THEREAFTER.  29 U.S.C. 203(S)(1).  THE
PRESENCE OF THIS DOLLAR-VOLUME CUTOFF FOR COVERAGE UNDER THE ACT, IN
TURN, PLACES IMPORTANCE ON THE ACT'S DEFINITION OF "ENTERPRISE." 

THE TERM "ENTERPRISE" IS DEFINED BY THE STATUTE AS FOLLOWS: 

     "'ENTERPRISE' MEANS THE RELATED ACTIVITIES PERFORMED (EITHER

  THROUGH UNIFIED OPERATION OR COMMON CONTROL) BY ANY PERSON OR

PERSONS FOR A COMMON BUSINESS PURPOSE, AND INCLUDES ALL SUCH

  ACTIVITIES WHETHER PERFORMED IN ONE OR MORE ESTABLISHMENTS OR BY

  ONE OR MORE CORPORATE OR OTHER ORGANIZATIONAL UNITS . . . "  29

  U.S.C. 203(R). 

SPECIFIC EXEMPTIONS ARE NOTED, MAKING CLEAR THAT EXCLUSIVE-DEALERSHIP
ARRANGEMENTS, COLLECTIVE-PURCHASING POOLS, FRANCHISES, AND LEASES OF
BUSINESS PREMISES FROM LARGE COMMERCIAL LANDLORDS DO NOT CREATE
"ENTERPRISES" WITHIN THE MEANING OF THE ACT.  IBID. 

THE DISTRICT COURT CORRECTLY IDENTIFIED THE THREE MAIN ELEMENTS OF
THE STATUTORY DEFINITION OF "ENTERPRISE":  RELATED ACTIVITIES, UNIFIED
OPERATION OR COMMON CONTROL, AND COMMON BUSINESS PURPOSE.  WE BELIEVE
THE COURT OF APPEALS ERRED IN HOLDING THAT THE AGGREGATE MANAGEMENT
ACTIVITIES OF THE RESPONDENT FAILED TO MEET THESE STATUTORY CRITERIA. 
ONCE THE RESPONDENT IS RECOGNIZED TO BE THE EMPLOYER OF ALL OF THE
BUILDING EMPLOYEES, IT FOLLOWS QUITE SIMPLY THAT IT IS A SINGLE
ENTERPRISE UNDER THE ACT.  THE RESPONDENT IS, AFTER ALL, BUT ONE
COMPANY.  ITS ACTIVITIES IN ALL OF THE BUILDINGS ARE VIRTUALLY
IDENTICAL, AND ARE PLAINLY "RELATED" IN THE SENSE THAT CONGRESS
INTENDED.  AS THE SENATE REPORT ACCOMPANYING THE 1961 AMENDMENTS
INDICATED:  "WITHIN THE MEANING OF THIS TERM, ACTIVITIES ARE 'RELATED'
WHEN THEY ARE THE SAME OR SIMILAR . . . "  S. REP. NO. 145, 87TH CONG.,
1ST SESS., 41.  THE RESPONDENT'S ACTIVITIES, SIMILARLY, ARE PERFORMED
"EITHER THROUGH UNIFIED OPERATION OR COMMON CONTROL."  THE RESPONDENT
IS A FULLY INTEGRATED MANAGEMENT COMPANY DIRECTING OPERATIONS AT ALL
NINE BUILDINGS FROM ITS CENTRAL OFFICE.  FOR PURPOSES OF DETERMINING
WHETHER IT IS AN "ENTERPRISE" UNDER THE ACT, IT IS IRRELEVANT THAT THE
RELATIONSHIP BETWEEN THE RESPONDENT AND THE OWNERS IS ONE OF AGENCY;
THAT SEPARATE BANK ACCOUNTS ARE MAINTAINED FO EACH BUILDING; AND THAT
THE RISK OF LOSS AND THE CHANCE OF GAIN ON CAPITAL INVESTMENT BELONG TO
THE OWNERS, NOT THE RESPONDENT.  ALL THAT IS REQUIRED UNDER THE
STATUTORY DEFINITION IS THAT THE RESPONDENT'S OWN ACTIVITIES BE RELATED
AND UNDER COMMON CONTROL OR UNIFIED OPERATION, AS THEY PLAINLY ARE. 

IN ITS ANALYSIS OF THIS PROBLEM, THE COURT OF APPEALS PLACED GREAT
WEIGHT ON THE FACT THAT THE BUILDING OWNERS HAVE NO RELATIONSHIP WITH
ONE ANOTHER, AND HAVE NO COMMON BUSINESS PURPOSE.  THIS IS TRUE, BUT
BESIDE THE POINT, FOR THE OWNERS ARE NOT DEFENDANTS IN THIS ACTION AND
IT IS NOT THEIR ACTIVITIES THAT ARE UNDER EXAMINATION.  AS JUDGE WINTER
WROTE IN THE CONFLICTING CASE FROM THE FOURTH CIRCUIT, "IT IS
DEFENDANTS' ACTIVITIES AT EACH BUILDING WHICH MUST BE HELD TOGETHER BY
A COMMON BUSINESS PURPOSE, NOT ALL THE ACTIVITIES OF ALL OWNERS OF
APARTMENT PROJECTS."  SHULTZ V. FALK, 439 F.2D, AT 346.  IN THE PRESENT
CASE, THE RESPONDENT'S ACTIVITIES AT THE SEVERAL LOCATIONS ARE TIED
TOGETHER BY THE COMMON BUSINESS PURPOSE OF MANAGING COMMERCIAL
PROPERTIES FOR PROFIT.  THE FACT THAT THE BUILDINGS ARE SEPARATE
ESTABLISHMENTS IS SPECIFICALLY MADE IRRELEVANT BY SEC. 3(R). 

THE COURT OF APPEALS ALSO CITED THE PORTION OF THE SENATE REPORT
EXPLAINING THE EXEMPTIONS TO SEC. 3(R), NOTED ABOVE, FOR EXCLUSIVE
DEALING CONTRACTS, FRANCHISES, LEASING SPACE IN SHOPPING CENTERS, AND
THE LIKE: 

     "THE BILL ALSO CONTAINS PROVISIONS WHICH SHOULD INSURE THAT A

  SMALL LOCAL INDEPENDENT BUSINESS, NOT IN ITSELF LARGE ENOUGH TO

  COME WITHIN THE NEW COVERAGE, WILL NOT BECOME SUBJECT TO THE ACT

  BY BEING CONSIDERED A PART OF A LARGE ENTERPRISE WITH WHICH IT

  HAS BUSINESS DEALINGS. 

      "THE DEFINITION OF 'ENTERPRISE' EXPRESSLY MAKES IT CLEAR THAT
A

  LOCAL RETAIL OR SERVICE ESTABLISHMENT WHICH IS UNDER INDEPENDENT

  OWNERSHIP SHALL NOT BE CONSIDERED TO BE SO OPERATED AND

  CONTROLLED AS TO BE OTHER THAN A SEPARATE ENTERPRISE BECAUSE OF A

  FRANCHISE, OR GROUP PURCHASING, OR GROUP ADVERTISING ARRANGEMENT

  WITH OTHER ESTABLISHMENTS OR BECAUSE THE ESTABLISHMENT LEASES

  PREMISES FROM A PERSON WHO ALSO HAPPENS TO LEASE PREMISES TO

  OTHER RETAIL OR SERVICE ESTABLISHMENTS."  S. REP. NO. 145, 87TH

CONG., 1ST SESS., 41. 

THE COURT OF APPEALS WENT ON TO STRESS THAT THE BUILDING OWNERS SHOULD
NOT BE BROUGHT UNDER THE ACT SIMPLY BECAUSE THEY DEALT WITH A LARGE
REAL ESTATE MANAGEMENT COMPANY.  THIS IS TRUE, BUT ALSO BESIDE THE
POINT, SINCE WE DEAL HERE WITH THAT LARGE MANAGEMENT COMPANY AS A PARTY
AND, FOR PURPOSES OF THIS CASE, AS AN EMPLOYER OF THE EMPLOYEES IN
QUESTION.  WE DO NOT HOLD, NOR COULD WE IN THIS CASE, THAT THE
INDIVIDUAL BUILDING OWNERS IN THIER CAPACITY AS EMPLOYERS /5/  ARE TO
BE AGGREGATED TO CREATE SOME ABSTRACT "ENTERPRISE" FOR PURPOSES OF THE
FAIR LABOR STANDARDS ACT.  /6/ 

IT IS ARGUED THAT SUCH A STRAIGHTFORWARD APPLICATION OF THE
STATUTORY CRITERIA TO THE RESPONDENT'S BUSINESS IGNORES THE
SIGNIFICANCE OF THE DOLLAR VOLUME LIMITATION INCLUDED IN THE SEC. 3(S)
DEFINITION OF "(ENTERPRISE ENGAGED IN COMMERCE OR IN THE PRODUCTION OF
GOODS FOR COMMERCE."  THE COURT OF APPEALS CITED EVIDENCE IN THE
LEGISLATIVE HISTORY OF THE 1961 AMENDMENTS THAT INDICATES A PURPOSE TO
EXEMPT SMALL BUSINESSES FROM THE OBLIGATIONS OF THE ACT.  444 F.2D, AT
613; S. REP. NO. 145, 87TH CONG., 1ST SESS., 5.  IF THE INDIVIDUAL
BUILDING OWNERS ARE ENGAGED IN ENTERPRISES TOO SMALL TO COME WITHIN THE
REACH OF THE FAIR LABOR STANDARDS ACT, REASONED THE COURT OF APPEALS,
IT WOULD BE "ANOMALOUS" TO TREAT THEM AS A SINGLE ENTERPRISE SUBJECT TO
THE ACT "MERELY BECAUSE THEY HIRE A RENTAL AGENT WHO MANAGES OTHER
BUILDINGS."  444 F.2D, AT 614.  ONCE AGAIN, HOWEVER, THE RESPONSE TO
THIS ARGUMENT IS THAT IT IS THE RESPONDENT MANAGEMENT COMPANY, NOT THE
INDIVIDUAL BUILDING OWNERS, THAT HAS BEEN HELD IN THIS CASE TO BE AN
"EMPLOYER" OF ALL THE AFFECTED "EMPLOYEES."  FURTHERMORE, THE PROPER
MEASURE OF THE RESPONDENT'S SIZE HAS BEEN HELD TO BE THE GROSS RENTALS
PRODUCED BY PROPERTIES UNDER ITS MANAGEMENT.  IT IS TRUE THAT ONE
PURPOSE OF THE DOLLAR-VOLUME LIMITATION IN THE STATUTORY DEFINITION OF
"ENTERPRISE" IS THE EXEMPTION OF SMALL BUSINESSES, BUT THIS RESPONDENT
IS NOT SUCH A BUSINESS UNDER THESE HOLDINGS OF THE COURT OF APPEALS. 
/7/  THE ARGUMENT TO THE CONTRARY AMOUNTS TO A COLLATERAL ATTACK ON THE
"EMPLOYER" AN "GROSS SALES" DETERMINATIONS MADE BELOW, AND THE
RESPONDENT CANNOT MAKE SUCH AN ATTACK IN THE ABSENCE OF A CROSS
PETITION FOR CERTIORARI.  /8/ 

WE HOLD THAT THE DISTRICT COURT WAS CORRECT IN AGGREGATING ALL OF
THE RESPONDENT'S MANAGEMENT ACTIVITIES AS A SINGLE "ENTERPRISE." 
ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/0/  HOWARD LICHTENSTEIN AND MARVIN DICKER FILED A BRIEF FOR THE
REALTY ADVISORY BOARD ON LABOR RELATIONS, INC., AS AMICUS CURIAE URGING
AFFIRMANCE. 

/1/  IN PERTINENT PART, THE STATUTE PROVIDES THAT: 

"(S) 'ENTERPRISE ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS
FOR COMMERCE' MEANS AN ENTERPRISE WHICH HAS EMPLOYEES ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE, INCLUDING
EMPLOYEES HANDLING, SELLING, OR OTHERWISE WORKING ON GOODS THAT HAVE
BEEN MOVED IN OR PRODUCED FOR COMMERCE BY ANY PERSON, AND WHICH-- 

"(1) DURING THE PERIOD FEBRUARY 1, 1967, THROUGH JANUARY 31, 1969,
IS AN ENTERPRISE WHOSE ANNUAL GROSS VOLUME OF SALES MADE OR BUSINESS
DONE IS NOT LESS THAN $500,000 (EXCLUSIVE OF EXCISE TAXES AT THE RETAIL
LEVEL WHICH ARE SEPARATELY STATED) OR IS A GASOLINE SERVICE
ESTABLISHMENT WHOSE ANNUAL GROSS VOLUME OF SALES IS NOT LESS THAN
$250,000 (EXCLUSIVE OF EXCISE TAXES AT THE RETAIL LEVEL WHICH ARE
SEPARATELY STATED) OR IS A GASOLINE SERVICE ESTABLISHMENT WHOSE ANNUAL
GROSS VOLUME OF SALES IS NOT LESS THAN $250,000 (EXCLUSIVE OF EXCISE
TAXES AT THE RETAIL LEVEL WHICH ARE SEPARATELY STATED), AND BEGINNING
FEBRUARY 1, 1969, IS AN ENTERPRISE WHOSE ANNUAL GROSS VOLUME OF SALES
MADE OR BUSINESS DONE IS NOT LESS THAN $250,000 (EXCLUSIVE OF EXCISE
TAXES AT THE RETAIL LEVEL WHICH ARE SEPARATELY STATED) . . . "  29
U.S.C. 203(S). 

/2/  SECTION 3(S)(3) OF THE ACT, AS ENACTED IN 1961, REFERRED IN ITS
DEFINITION OF "(ENTERPRISE ENGAGED IN COMMERCE OR IN THE PRODUCTION OF
GOODS FOR COMMERCE," INTER ALIA, TO:  "ANY ESTABLISHMENT OF ANY SUCH
ENTERPRISE . . . WHICH HAS EMPLOYEES ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE IF THE ANNUAL GROSS VOLUME OF SALES OF
SUCH ENTERPRISE IS NOT LESS THAN $1,000,000 . . . " PUB. L. 87-30, 75
STAT. 65, 66.  THE DISTRICT COURT CONSTRUED THE STATUTE TO REQUIRE THAT
TWO OR MORE EMPLOYEES IN EACH BUILDING BE ENGAGED IN COMMERCE IN ORDER
FOR THAT BUILDING TO BE COVERED UNDER THE ACT.  IT FOUND THAT IN NO
BUILDING WERE THERE TWO SUCH EMPLOYEES, AND THEREFORE HELD THAT THERE
WAS NO COVERAGE UNDER THE ACT PRIOR TO THE 1966 AMENDMENTS.  324
F.SUPP.  987, 995-997.  THE 1966 AMENDMENTS SEE N. 1, SUPRA, REQUIRED
ONLY THAT THE "ENTERPRISE" HAVE "EMPLOYEES" ENGAGED IN COMMERCE, AND
UNDER THIS STANDARD THE DISTRICT COURT FOUND THAT THE RESPONDENT
QUALIFIED.  ID., AT 997.  THOUGH THE GOVERNMENT APPEALED ON THIS ISSUE,
THE COURT OF APPEALS DID NOT REACH IT, 444 F.2D 609, 614. 

/3/  NLRB V. INTERNATIONAL VAN LINES, 409 U.S. 48, 52 N. 4, AND
CASES THERE CITED.  BUT SEE N. 8, INFRA. 

/4/  PUB. L. 87-30, 75 STAT. 65, 67, 69. 

/5/  AS BOTH THE DISTRICT COURT AND THE COURT OF APPEALS NOTED, THE
STATUTORY CONCEPT OF "EMPLOYER" IS "ANY PERSON ACTING DIRECTLY OR
INDIRECTLY IN THE INTEREST OF AN EMPLOYER IN RELATION TO AN EMPLOYEE .
. . " 29 U.S.C. 203(D).  THIS DEFINITION WAS HELD TO BE BROAD ENOUGH
THAT THERE MIGHT BE "SEVERAL SIMULTANEOUS 'EMPLOYERS.'"  444 F.2D, AT
611-612.  SEE ALSO 324 F.SUPP.  987, 992; WIRTZ V. HEBERT, 368 F.2D
139; MID-CONTINENT PIPE LINE CO. V. HARGRAVE, 129 F.2D 655. 

/6/  CONTRARY TO THE VIEW TAKEN BY THE DISSENT, WE SPECIFICALLY DO
NOT HOLD THAT "THE BUILDINGS AND THE MANAGEMENT COMPANY COLLECTIVELY
ARE AN ENTERPRISE . . . "  WE DEAL SOLELY WITH THE MANAGEMENT COMPANY
AND ITS "RELATED ACTIVITIES PERFORMED . . . FOR A COMMON BUSINESS
PURPOSE." 

/7/  IT IS STIPULATED THAT IN ALL RELEVANT YEARS, THE ANNUAL GROSS
RENTAL INCOME COLLECTED BY THE RESPONDENT EXCEEDED $1,000,000.  324
F.SUPP.,AT 993. 

/8/  WE HAVE GRANTED CERTIORARI IN NO. 72-844, FALK V. BRENNAN, SUB
NOM.  FALK V. SHULTZ, POST, P. 954, TO CONSIDER WHETHER THE PROPER
MEASURE OF "GROSS SALES" IN THIS CONTEXT IS GROSS RENTALS COLLECTED OR
GROSS COMMISSIONS, AND WHETHER MAINTENANCE EMPLOYEES ARE "EMPLOYEES" OF
THE MANAGEMENT COMPANY WITHIN THE MEANING OF THE ACT. 

MR. JUSTICE WHITE, DISSENTING. 

IT IS UNDISPUTED THAT FOR THE MINIMUM WAGE AND MAXIMUM HOUR
REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT, 52 STAT. 1060, AS
AMENDED, 29 U.S.C. 201 ET SEQ., TO APPLY TO ALL THE EMPLOYEES INVOLVED
IN THIS CASE, THEY MUST BE EMPLOYED IN AN "ENTERPRISE ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE."  /1/  29 U.S.C.
203(S), 206, AND 207.  AN "ENTERPRISE" FOR THE PURPOSE OF THE ACT
"MEANS THE RELATED ACTIVITIES PERFORMED (EITHER THROUGH UNIFIED
OPERATION OR COMMON CONTROL) BY ANY PERSON OR PERSONS FOR A COMMON
BUSINESS PURPOSE . . . "  ID., 203(R).  AN ENTERPRISE, HOWEVER, DOES
NOT INCLUDE THE RELATED ACTIVITIES PERFORMED FOR THE ENTERPRISE BY AN
INDEPENDENT CONTRACTOR OR OTHER SPECIFIED ARRANGEMENTS, INCLUDING
OTHERWISE INDEPENDENT ESTABLISHMENTS OCCUPYING PREMISES LEASED TO THEM
BY THE SAME PERSON.  IBID. 

BUT, FOR AN "ENTERPRISE" TO BE "ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE," THE ENTERPRISE MUST HAVE AN "ANNUAL
GROSS VOLUME OF SALES MADE OR BUSINESS DONE" IN AN AMOUNT NOT LESS THAN
THE SPECIFIED STATUTORY MINIMUM.  ID., 203(S)(1).  CONGRESS DID NOT
INTEND TO COVER ALL ESTABLISHMENTS BY EXPANDING THE COVERAGE OF THE ACT
THROUGH THE ENTERPRISE APPROACH.  INSTEAD, IT DREW AN ECONOMIC LINE. 
"IT IS THE LINE WHICH THE CONGRESS MUST DRAW IN DETERMINING WHO SHALL
AND WHO SHALL NOT BE COVERED BY A MINIMUM WAGE."  S. REP. NO. 145, 87TH
CONG., 1ST SESS., 5.  NOR WAS THE DEFINITION OF ENTERPRISE INTENDED TO
SWALLOW UP THE EXCLUSION OF SMALL BUSINESSES.  RELATED ACTIVITIES
CONDUCTED BY SEPARATE BUSINESSES WOULD BE CONSIDERED A PART OF AN
ENTERPRISE ONLY "WHERE THEY ARE JOINED EITHER THROUGH UNITED OPERATION
OR COMMON CONTROL INTO A UNIFIED BUSINESS SYSTEM OR ECONOMIC UNIT TO
SERVE A COMMON BUSINESS PURPOSE."  ID., AT 41.  AND THE EXPRESS
EXEMPTIONS PROVIDED IN SEC. 203(R) FROM THE ENTERPRISE CONCEPT, THE
SENATE REPORT SAID, WOULD "INSURE THAT A SMALL LOCAL INDEPENDENT
BUSINESS, NOT IN ITSELF LARGE ENOUGH TO COME WITHIN THE NEW COVERAGE,
WILL NOT BECOME SUBJECT TO THE ACT BY BEING CONSIDERED A PART OF A
LARGE ENTERPRISE WITH WHICH IT HAS BUSINESS DEALINGS."  IBID. 

IN THE CASE BEFORE US, NINE SEPARATELY AND INDEPENDENTLY OWNED
BUILDINGS LEASING SPACE TO TENANTS EMPLOYED THE SAME MANAGEMENT COMPANY
AS AGENT TO RECOMMEND TENANTS, COLLECT RENTS, HIRE, FIRE, AND SUPERVISE
EMPLOYEES, AND MAINTAIN AND OPERATE THE BUILDINGS.  THE COURT HOLDS
THAT EVEN IF NONE OF THE INDIVIDUAL BUILDING OWNERS WOULD ITSELF
GENERATE GROSS RENTALS IN SUFFICIENT AMOUNT TO BE COVERED BY THE ACT,
THE BUILDINGS AND THE MANAGEMENT COMPANY COLLECTIVELY ARE AN ENTERPRISE
WITH COLLECTIVE GROSS RENTALS IN EXCESS OF THE STATUTORY MINIMUMS AND
HENCE COVERED BY THE ACT.  /2/  BECAUSE IT APPEARS TO ME THAT THE COURT
IS APPLYING THE CONCEPT OF ENTERPRISE IN A WAY WHICH IGNORES THE
ECONOMIC LIMITATIONS IN THE ACT AND THE CONGRESSIONAL INTENTION THEY
REPRESENT, I RESPECTFULLY DISSENT. 

THERE IS NO CONNECTION BETWEEN THESE SEPARATELY OWNED BUILDINGS
OTHER THAN THE FACT THAT THEY EMPLOY THE SAME MANAGEMENT COMPANY TO
REPRESENT THEM.  THEY HAVE A COMMON MANAGING AGENT, BUT THAT AGENT IS
SEPARATELY ACCOUNTABLE TO, AND MUST FOLLOW THE PERHAPS DIVERSE
DIRECTIONS OF, EACH OF ITS PRINCIPALS.  THEY HAVE NO UNIFIED OPERATION,
DO NOT CONSTITUTE A UNIFIED BUSINESS SYSTEM OR AN ECONOMIC UNIT, AND
SURELY DO NOT SERVE A COMMON BUSINESS PURPOSE.  HENCE THERE IS NO
"ENTERPRISE" WITHIN THE MEANING OF THE ACT WHICH COVERS ONLY THOSE
"RELATED ACTIVITIES" PERFORMED THROUGH UNIFIED OPERATION OR COMMON
CONTROL "FOR A COMMON BUSINESS PURPOSE." 

AS I HAVE INDICATED, CONGRESS WAS NOT UNAWARE OF THE POSSIBILITY OF
STRETCHING THE CONCEPT "ENTERPRISE" BEYOND ITS PROPER BOUNDS AND SOUGHT
TO GUARD AGAINST IT.  THE SENATE COMMITTEE SAID:  "THUS THE MERE FACT
THAT A GROUP OF INDEPENDENTLY OWNED AND OPERATED STORES JOIN TOGETHER
TO COMBINE THEIR PURCHASING ACTIVITIES OR TO RUN COMBINED ADVERTISING
WILL NOT FOR THESE REASONS MEAN THAT THEIR ACTIVITIES ARE PERFORMED
THROUGH UNIFIED OPERATIONS OR COMMON CONTROL AND THEY WILL NOT FOR
THESE REASONS BE CONSIDERED A PART OF THE SAME 'ENTERPRISE.'"  S. REP.
NO. 145, 87TH CONG., 1ST SESS., 42.  COMMON AGENTS, THEREFORE, ARE NOT
SUFFICIENT TO CONVERT OTHERWISE INDEPENDENT ENTITIES INTO AN
ENTERPRISE. 

THE COMMITTEE ALSO SAID:  "THERE MAY BE A NUMBER OF DIFFERENT TYPES
OF ARRANGEMENTS ESTABLISHED IN SUCH CASES.  THE KEY IN EACH CASE MAY BE
FOUND IN THE ANSWER TO THE QUESTION, 'WHO RECEIVES THE PROFITS, SUFFERS
THE LOSSES, SETS THE WAGES AND WORKING CONDITIONS OF EMPLOYEES, OR
OTHERWISE MANAGES THE BUSINESS IN THOSE RESPECTS WHICH ARE THE COMMON
ATTRIBUTES OF AN INDEPENDENT BUSINESSMAN OPERATING A BUSINESS FOR
PROFIT?'"  IBID. 

UNDER THIS STANDARD, THERE CAN BE NO QUESTION THAT THE BUILDINGS ARE
SEPARATE ECONOMIC UNITS AND SHOULD BE TREATED AS SUCH.  THE MANAGER
RECEIVES MERELY A COMMISSION FOR HIS SERVICES.  THE MANAGING AGENT
MANAGES, BUT IS SUBJECT TO DIRECTION BY HIS PRINCIPAL.  THE INCOME AND
EXPENSES FOR EACH BUILDING ARE ACCOUNTED FOR SEPARATELY.  THE OWNER OF
EACH BUILDING RECEIVES THE PROFITS AND SUFFERS THE LOSSES, IF ANY. 
EACH OWNER SETS THE WAGES AND WORKING CONDITIONS FOR EACH BUILDING IN
THE SENSE THAT, ALTHOUGH THE MANAGER NEGOTIATES SUCH MATTERS, HE
NEGOTIATES UNDER INSTRUCTIONS, AND IT IS EACH OWNER WHO MUST APPROVE
THEM.  EACH BUILDING CARRIES A SEPARATE EMPLOYER IDENTIFICATION
NUMBER.  EMPLOYEES ARE HIRED WITH RESPECT TO EACH BUILDING, AND
SUPPLIES AND OTHER ITEMS NECESSARY FOR THE OPERATION OF THE BUILDINGS
ARE PURCHASED SEPARATELY FOR EACH BUILDING.  SHOULD A PARTICULAR
BUILDING TERMINATE ITS RELATIONSHIP WITH THE MANAGER, THE BUILDING
EMPLOYEES REMAIN WITH THE BUILDING. 

THE ARNHEIM & NEELY AGENCY UNQUESTIONABLE WAS AN "EMPLOYER" INSOFAR
AS ITS RELATIONSHIP TO EACH OF THE BUILDINGS WAS CONCERNED, FOR 29
U.S.C. 203(D) DEFINES THE TERM EMPLOYER AS INCLUDING "ANY PERSON ACTING
DIRECTLY OR INDIRECTLY IN THE INTEREST OF AN EMPLOYER IN RELATION TO AN
EMPLOYEE . . . "  BUT THIS IS A FAR CRY FROM CONCLUDING THAT THE
SEPARATE BUILDINGS AND THEIR COMMON AGENT CONSTITUTE AN ENTERPRISE
ENGAGED IN COMMERCE.  /3/     UNQUESTIONABLY, IT IS THE INDIVIDUAL
OWNER WHO BEARS THE BURDEN OF THE ACT AND IF ANY ONE OF THEM, OR EACH
OF THEM, INDIVIDUALLY HAS GROSS SALES LESS THAN THE JURISDICTIONAL
MINIMUMS MENTIONED IN THE ACT, CONSTRUING THE WORK "ENTERPRISE" CONCEPT
AS THE MAJORITY DOES DISTORTS CLEAR CONGRESSIONAL INTENT. 

/1/  AS DISCUSSED IN THE MAJORITY OPINION, THE ACT AS PASSED IN
1938, 52 STAT. 1060, COVERED ONLY EMPLOYEES "ENGAGED IN COMMERCE OR IN
THE PRODUCTION OF GOODS FOR COMMERCE."  THE 1961 AMENDMENTS, 75 STAT.
65-67, 69, GREATLY BROADENED THE SCOPE OF THE ACT BY ADDING THE
"ENTERPRISE" THAT WAS.  THEREFORE, THOSE EMPLOYEES IN THIS CASE NOT
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE, MUST
BELONG TO AN "ENTERPRISE" SO ENGAGED, IF THEY ARE TO BE COVERED. 

/2/  IF I AGREED THAT THE BUILDING OWNERS AND THEIR COMMON AGENT
WERE AN "ENTERPRISE," I WOULD ALSO AGREE THAT THE CUMULATIVE GROSS
RENTALS WOULD BE THE PROPER MEASURE OF COVERAGE. 

/3/  THIS IS DEMONSTRATED BY 29 CFR 779.203, WHICH PROVIDES THAT THE
"TERMS ('EMPLOYER,' 'ESTABLISHMENT,' AND 'ENTERPRISE') ARE NOT
SYNONYMOUS." 

ANDREW L. FREY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD AND RICHARD F. SCHUBERT. 

EUGENE B. STRASSBURGER, JR., ARGUED THE CAUSE FOR RESPONDENT ARNHEIM
& NEELY, INC. FRANK L. SEAMANS ARGUED THE CAUSE FOR RESPONDENT
INSTITUTE OR REAL ESTATE MANAGEMENT.  WITH THEM ON THE BRIEF WERE
EUGENE B. STRASSBURGER III AND ROBERT P. LAWRY.  /0/
..END :





















UNITED STATES V. FALSTAFF BREWING CORP., 410 U.S. 526 


       UNITED STATES V. FALSTAFF BREWING CORP. ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF RHODE ISLAND

        NO. 71-873.  ARGUED OCTOBER 17, 1972-- DECIDED FEBRUARY 28,

1973 


RESPONDENT FALSTAFF, THE NATION'S FOURTH LARGEST BEER PRODUCER, WHICH
WAS DESIROUS OF ACHIEVING NATIONAL STATUS, AGREED TO ACQUIRE THE
LARGEST SELLER OF BEER IN THE NEW ENGLAND MARKET RATHER THAN ENTER DE
NOVO.  THE DISTRICT COURT DISMISSED THE GOVERNMENT'S RESULTANT SUIT
CHARGING VIOLATION OF SEC. 7 OF THE CLAYTON ACT, FINDING THAT ENTRY BY
ACQUISITION, WHICH THE COURT FOUND WAS THE ONLY WAY THAT RESPONDENT
INTENDED TO PENETRATE THE NEW ENGLAND MARKET, WOULD NOT RESULT IN A
SUBSTANTIAL LESSENING OF COMPETITION.  HELD:  THE DISTRICT COURT ERRED
IN ASSUMING THAT, BECAUSE RESPONDENT WOULD NOT HAVE ENTERED THE MARKET
DE NOVO, IT COULD NOT BE CONSIDERED A POTENTIAL COMPETITOR.  THE COURT
SHOULD HAVE CONSIDERED WHETHER RESPONDENT WAS A POTENTIAL COMPETITOR IN
THE SENSE THAT ITS POSITION ON THE EDGE OF THE MARKET EXERTED A
BENEFICIAL INFLUENCE ON THE MARKET'S COMPETITIVE CONDITIONS.  PP. 531
538. 

332 F.SUPP.  970, REVERSED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BLACKMUN, J., JOINED, AND IN PART I OF WHICH DOUGLAS, J.,
JOINED.  DOUGLAS, J., FILED AN OPINION CONCURRING IN PART, POST, P.
538.  MARSHALL, J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P.
545.  REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH STEWART, J.,
JOINED, POST, P. 572.  BRENNAN, J., TOOK NO PART IN THE DECISION OF THE
CASE.  POWELL, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

ALLEGING THAT FALSTAFF BREWING CORP.'S ACQUISITION OF THE
NARRAGANSETT BREWING CO. IN 1965 VIOLATED SEC. 7 OF THE CLAYTON ACT, 38
STAT. 731, AS AMENDED, 15 U.S.C. 18, /1/  THE UNITED STATES BROUGHT
THIS ANTITRUST SUIT UNDER THE THEORY THAT POTENTIAL COMPETITION IN THE
NEW ENGLAND BEER MARKET MAY BE SUBSTANTIALLY LESSENED BY THE
ACQUISITION.  THE DISTRICT COURT HELD TO THE CONTRARY, 332 F.SUPP. 
970(1971), AND WE NOTED PROBABLE JURISDICTION /2/  TO DETERMINE WHETHER
THE TRIAL COURT APPLIED AN ERRONEOUS LEGAL STANDARD IN SO DECIDING, 405
U.S. 952(1972).  WE REMAND TO THE DISTRICT COURT FOR A PROPER
ASSESSMENT OF FALSTAFF AS A POTENTIAL COMPETITOR. 

AS STIPULATED BY THE PARTIES, THE RELEVANT PRODUCT MARKET IS THE
PRODUCTION AND SALE OF BEER, AND THE SIX NEW ENGLAND STATES /3/
COMPOSE THE GEOGRAPHIC MARKET.  WHILE BEER SALES IN NEW ENGLAND
INCREASED APPROXIMATELY 9.5% IN THE FOUR YEARS PRECEDING THE
ACQUISITION, THE EIGHT LARGEST SELLERS INCREASED THEIR SHARE OF THESE
SALES FROM APPROXIMATELY 74% TO 81.2%.  IN 1960, APPROXIMATELY 50% OF
THE SALES WERE MADE BY THE FOUR LARGEST SELLERS; BY 1964, THEIR SHARE
OF THE MARKET WAS 54%; AND BY 1965, THE YEAR OF ACQUISITION, THEIR
SHARE WAS 61.3%.  THE NUMBER OF BREWERS OPERATING PLANTS IN THE
GEOGRAPHIC MARKET DECREASED FROM 32 IN 1935, TO 11 IN 1957, TO SIX IN
1964.  /4/ 

OF THE NATION'S 10 LARGEST BREWERS IN 1964, ONLY FALSTAFF AND TWO
OTHERS DID NOT SELL BEER IN NEW ENGLAND; FALSTAFF WAS THE LARGEST OF
THE THREE AND HAD THE CLOSEST BREWERY.  /5/  IN RELATION TO THE NEW
ENGLAND MARKET, FALSTAFF SOLD ITS PRODUCT IN WESTERN OHIO, TO THE WEST
AND IN WASHINGTON, D.C., TO THE SOUTH. 

THE ACQUIRED FIRM, NARRAGANSETT, WAS THE LARGEST SELLER OF BEER IN
NEW ENGLAND AT THE TIME OF ITS ACQUISITION, WITH APPROXIMATELY 20% OF
THE MARKET; HAD BEEN THE LARGEST SELLER FOR THE FIVE PRECEDING YEARS;
HAD CONSTANTLY EXPANDED ITS BREWERY CAPACITY BETWEEN 1960 AND 1965; AND
HAD ACQUIRED EITHER THE ASSETS OR THE TRADEMARKS OF SEVERAL SMALLER
BREWERS IN AND AROUND THE GEOGRAPHIC MARKET. 

THE FOURTH LARGEST PRODUCER OF BEER IN THE UNITED STATES AT THE TIME
OF ACQUISITION, FALSTAFF WAS A REGIONAL BREWER /6/  WITH 5.9% OF THE
NATION'S PRODUCTION IN 1964, HAVING GROWN STEADILY SINCE ITS BEGINNING
AS A BREWER IN 1933 THROUGH ACQUISITION AND EXPANSION OF OTHER
BREWERIES.  AS OF JANUARY 1965, FALSTAFF SOLD BEER IN 32 STATES, BUT
DID NOT SELL IN THE NORTHEAST, AN AREA COMPOSED OF NEW ENGLAND AND
STATES SUCH AS NEW YORK AND NEW JERSEY; THE AREA BEING THE HIGHEST BEER
CONSUMPTION REGION IN THE UNITED STATES.  BETWEEN 1955 AND 1966, THE
COMPANY'S NET SALES AND NET INCOME ALMOST DOUBLED, AND IN 1964 IT WAS
PLANNING A 10-YEAR, $35 MILLION PROGRAM TO EXPAND ITS EXISTING PLANTS. 

FALSTAFF MET INCREASINGLY STRONG COMPETITION IN THE 1960'S FROM FOUR
BREWERS WHO SOLD IN ALL OF THE SIGNIFICANT MARKETS.  NATIONAL BREWERS
POSSESS COMPETITIVE ADVANTAGES SINCE THEY ARE ABLE TO ADVERTISE ON A
NATIONWIDE BASIS, THEIR BEERS HAVE GREATER PRESTIGE THAN REGIONAL OR
LOCAL BEERS, AND THEY ARE LESS AFFECTED BY THE WEATHER OR LABOR
PROBLEMS IN A PARTICULAR REGION.  THUS FALSTAFF CONCLUDED THAT IT MUST
CONVERT FROM "REGIONAL" TO "NATIONAL" STATUS, IF IT WAS TO COMPETE
EFFECTIVELY WITH THE NATIONAL PRODUCERS.  /7/ FOR SEVERAL YEARS
FALSTAFF PUBLICLY EXPRESSED ITS DESIRE FOR NATIONAL DIS DISTRIBUTION
/8/  AND AFTER MAKING SEVERAL EFFORTS IN THE EARLY 1960'S TO ENTER THE
NORTHEAST BY ACQUISITION, AGREED TO ACQUIRE NARRAGANSETT IN 1965. 

BEFORE THE ACQUISITION WAS ACCOMPLISHED, THE UNITED STATES BROUGHT
SUIT /9/  ALLEGING THAT THE ACQUISITION WOULD VIOLATE SEC. 7 BECAUSE
ITS EFFECT MAY BE TO SUBSTANTIALLY LESSEN COMPETITION IN THE PRODUCTION
AND SALE OF BEER IN THE NEW ENGLAND MARKET.  THIS CONTENTION WAS BASED
ON TWO GROUNDS:  BECAUSE FALSTAFF WAS A POTENTIAL ENTRANT AND BECAUSE
THE ACQUISITION ELIMINATED COMPETITION THAT WOULD HAVE EXISTED HAD
FALSTAFF ENTERED THE MARKET DE NOVO OR BY ACQUISITION AND EXPANSION OF
A SMALLER FIRM, A SO-CALLED "TOE-HOLD" ACQUISITION.  /10/  THE
ACQUISITION WAS COMPLETED AFTER THE GOVERNMENT'S MOTIONS FOR INJUNCTIVE
RELIEF WERE DENIED, AND FALSTAFF AGREED TO OPERATE NARRAGANSETT AS A
SEPARATE SUBSIDIARY UNTIL OTHERWISE ORDERED BY THE COURT. 

AFTER A TRIAL ON THE MERITS, THE DISTRICT COURT FOUND THAT THE
GEOGRAPHIC MARKET WAS HIGHLY COMPETITIVE; THAT FALSTAFF WAS DESIROUS OF
BECOMING A NATIONAL BREWER BY ENTERING THE NORTHEAST; THAT ITS
MANAGEMENT WAS COMMITTED AGAINST DE NOVO ENTRY; AND THAT COMPETITION
HAD NOT DIMINISHED SINCE THE ACQUISITION.  /11/  THE DISTRICT COURT
THEN HELD: 

     "THE GOVERNMENT'S CONTENTIONS THAT FALSTAFF AT THE TIME OF
SAID

  ACQUISITION WAS A POTENTIAL ENTRANT INTO SAID NEW ENGLAND MARKET,

  AND THAT SAID ACQUISITION DEPRIVED THE NEW ENGLAND MARKET OF

  ADDITIONAL COMPETITION ARE NOT SUPPORTED BY THE EVIDENCE.  ON THE

  CONTRARY, THE CREDIBLE EVIDENCE ESTABLISHES BEYOND A REASONABLE

  DOUBT THAT THE EXECUTIVE MANAGEMENT OF FALSTAFF HAD CONSISTENTLY

 DECIDED NOT TO ATTEMPT TO ENTER SAID MARKET UNLESS IT COULD

  ACQUIRE A BREWERY WITH A STRONG AND VIABLE DISTRIBUTION SYSTEM

  SUCH AS THAT POSSESSED BY NARRAGANSETT.  SAID EXECUTIVES HAD

  CAREFULLY CONSIDERED SUCH POSSIBLE ALTERNATIVES AS (1)

  ACQUISITION OF A SMALL BREWERY ON THE EAST COAST, (2) THE

  SHIPPING OF BEER FROM ITS EXISTING BREWERIES, THE NEAREST OF

  WHICH WAS LOCATED IN FT. WAYNE, INDIANA, (3) THE BUILDING OF A

  NEW BREWERY ON THE EAST COAST AND OTHER POSSIBLE ALTERNATIVES,

  BUT CONCLUDED THAT NONE OF SAID ALTERNATIVES WOULD HAVE EFFECTED

  A REASONABLE PROBABILITY OF A PROFITABLE ENTRY FOR IT IN SAID NEW

  ENGLAND MARKET.  IN MY CONSIDERED OPINION THE PLAINTIFF HAS

FAILED TO ESTABLISH BY A FAIR PREPONDERANCE OF THE EVIDENCE THAT

  FALSTAFF WAS A POTENTIAL COMPETITOR IN SAID NEW ENGLAND MARKET AT

  THE TIME IT ACQUIRED NARRAGANSETT.  THE CREDIBLE EVIDENCE

  ESTABLISHES THAT IT WAS NOT A POTENTIAL ENTRANT INTO SAID MARKET

  BY ANY MEANS OR WAY OTHER THAN BY SAID ACQUISITION. 

  CONSEQUENTLY, IT CANNOT BE SAID THAT ITS ACQUISITION OF

  NARRAGANSETT ELIMINATED IT AS A POTENTIAL COMPETITOR THEREIN." 

  332 F.SUPP.,AT 972. 

ALSO FINDING THAT THE GOVERNMENT HAD FAILED TO ESTABLISH THAT THE
ACQUISITION WOULD RESULT IN A SUBSTANTIAL LESSENING OF COMPETITION, THE
DISTRICT COURT ENTERED JUDGMENT FOR FALSTAFF AND DISMISSED THE
COMPLAINT. 

        I 

WHERE THE EFFECT MAY BE SUBSTANTIALLY TO LESSEN COMPETITION OR TEND TO
CREATE A MONOPOLY.  THE SECTION PROSCRIBES MANY MERGERS BETWEEN
COMPETITORS IN A MARKET, UNITED STATES V. CONTINENTAL CAN CO., 378 U.S.
441(1964); BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294(1962); IT ALSO
BARS CERTAIN ACQUISITIONS OF A MARKET COMPETITOR BY A NONCOMPETITOR,
SUCH AS A MERGER BY AN ENTRANT WHO THREATENS TO DOMINATE THE MARKET OR
OTHERWISE UPSET MARKET CONDITIONS TO THE DETRIMENT OF COMPETITION, FTC
V. PROCTER & GAMBLE CO., 386 U.S. 568, 578-580(1967).  SUSPECT ALSO IS
THE ACQUISITION BY A COMPANY NOT COMPETING IN THE MARKET BUT SO
SITUATED AS TO BE A POTENTIAL COMPETITOR AND LIKELY TO EXERCISE
SUBSTANTIAL INFLUENCE ON MARKET BEHAVIOR.  ENTRY THROUGH MERGER BY SUCH
A COMPANY, ALTHOUGH ITS COMPETITIVE CONDUCT IN THE MARKET MAY BE THE
MIRROR IMAGE OF THAT OF THE ACQUIRED COMPANY, MAY NEVERTHELESS VIOLATE
SEC. 7 BECAUSE THE ENTRY ELIMINATES A POTENTIAL COMPETITOR EXERCISING
PRESENT INFLUENCE ON THE MARKET.  ID., AT 580-581; UNITED STATES V.
PENN-OLIN CHEMICAL CO., 378 U.S. 158, 173174(1964).  AS THE COURT
STATED IN UNITED STATES V. PENN-OLIN CHEMICAL CO., SUPRA, AT 174, "THE
EXISTENCE OF AN AGGRESSIVE, WELL EQUIPPED AND WELL FINANCED CORPORATION
ENGAGED IN THE SAME OR RELATED LINES OF COMMERCE WAITING ANXIOUSLY TO
ENTER AN OLIGOPOLISTIC MARKET WOULD BE A SUBSTANTIAL INCENTIVE TO
COMPETITION WHICH CANNOT BE UNDERESTIMATED." 

IN THE CASE BEFORE US, FALSTAFF WAS NOT A COMPETITOR IN THE NEW
ENGLAND MARKET, NOR IS IT CONTENDED THAT ITS MERGER WITH NARRAGANSETT
REPRESENTED AN ENTRY BY A DOMINANT MARKET FORCE.  IT WAS URGED,
HOWEVER, THAT FALSTAFF WAS A POTENTIAL COMPETITOR SO SITUATED THAT ITS
ENTRY BY MERGER RATHER THAN DE NOVO VIOLATED SEC. 7.  THE DISTRICT
COURT, HOWEVER, RELYING HEAVILY ON TESTIMONY OF FALSTAFF OFFICERS,
CONCLUDED THAT THE COMPANY HAD NO INTENT TO ENTER THE NEW ENGLAND
MARKET EXCEPT THROUGH ACQUISITION AND THAT IT THEREFORE COULD NOT BE
CONSIDERED A POTENTIAL COMPETITOR IN THAT MARKET.  HAVING PUT ASIDE
FALSTAFF AS A POTENTIAL DE NOVO COMPETITOR, IT FOLLOWED FOR THE
DISTRICT COURT THAT ENTRY BY A MERGER WOULD NOT ADVERSELY AFFECT
COMPETITION IN NEW ENGLAND. 

THE DISTRICT COURT ERRED AS A MATTER OF LAW.  THE ERROR LAY IN THE
ASSUMPTION THAT BECAUSE FALSTAFF, AS A MATTER OF FACT, WOULD NEVER HAVE
ENTERED THE MARKET DE NOVO, IT COULD IN NO SENSE BE CONSIDERED A
POTENTIAL COMPETITOR.  MORE SPECIFICALLY, THE DISTRICT COURT FAILED TO
GIVE SEPARATE CONSIDERATION TO WHETHER FALSTAFF WAS A POTENTIAL
COMPETITOR IN THE SENSE THAT IT WAS SO POSITIONED ON THE EDGE OF THE
MARKET THAT IT EXERTED BENEFICIAL INFLUENCE ON COMPETITIVE CONDITIONS
IN THAT MARKET. 

A SIMILAR ERROR WAS COMMITTED BY THE COURT OF APPEALS IN FTC V.
PROCTER & GAMBLE CO., SUPRA, WHERE ONE OF THE REASONS FOR THE
COMMISSION'S FINDING THE ACQUISITION IN VIOLATION OF SEC. 7 WAS THAT
THE MERGER ELIMINATED PROCTER AS A POTENTIAL ENTRANT, NOT BECAUSE
PROCTER WOULD HAVE ENTERED INDEPENDENTLY, BUT BECAUSE THE ACQUISITION
ELIMINATED THE PROCOMPETITIVE EFFECT PROCTER EXERTED FROM THE FRINGE OF
THE MARKET.  ID., AT 575.  THE COURT OF APPEALS STRUCK DOWN THIS
FINDING BECAUSE THERE WAS NO EVIDENCE THAT PROCTER EVER INTENDED DE
NOVO ENTRY, BUT WE HELD THE COMMISSION'S FINDING WAS "AMPLY SUPPORTED
BY THE EVIDENCE," ID., AT 581, BECAUSE THE EVIDENCE "CLEARLY SHOWED)
THAT PROCTER WAS THE MOST LIKELY ENTRANT," ID., AT 580, AND IT WAS
"CLEAR THAT THE EXISTENCE OF PROCTER AT THE EDGE OF THE INDUSTRY
EXERTED CONSIDERABLE INFLUENCE ON THE MARKET," ID., AT 581.  THUS, THE
FACT THAT FALSTAFF AND ITS MANAGEMENT HAD NO INTENT TO ENTER DE NOVO,
AND WOULD NOT HAVE DONE SO, DOES NOT IPSO FACTO DISPOSE OF THE
POTENTIAL-COMPETITION ISSUE. 

THE SPECIFIC QUESTION WITH RESPECT TO THIS PHASE OF THE CASE IS NOT
WHAT FALSTAFF'S INTERNAL COMPANY DECISIONS WERE BUT WHETHER, GIVEN ITS
FINANCIAL CAPABILITIES AND CONDITIONS IN THE NEW ENGLAND MARKET, IT
WOULD BE REASONABLE TO CONSIDER IT A POTENTIAL ENTRANT INTO THAT
MARKET.  SURELY, IT COULD NOT BE SAID ON THIS RECORD THAT FALSTAFF'S
GENERAL INTEREST IN THE NEW ENGLAND MARKET WAS UNKNOWN; /12/  AND IF IT
WOULD APPEAR TO RATIONAL BEER MERCHANTS IN NEW ENGLAND THAT FALSTAFF
MIGHT WELL BUILD A NEW BREWERY TO SUPPLY THE NORTHEASTERN MARKET THEN
ITS ENTRY BY MERGER BECOMES SUSPECT UNDER SEC. 7.  THE DISTRICT COURT
SHOULD THEREFORE HAVE APPRAISED THE ECONOMIC FACTS ABOUT FALSTAFF AND
THE NEW ENGLAND MARKET IN ORDER TO DETERMINE WHETHER IN ANY REALISTIC
SENSE FALSTAFF COULD BE SAID TO BE A POTENTIAL COMPETITOR ON THE FRINGE
OF THE MARKET WITH LIKELY INFLUENCE ON EXISTING COMPETITION.  /13/
THIS DOES NOT MEAN THAT THE TESTIMONY OF COMPANY OFFICIALS ABOUT ACTUAL
INTENTIONS OF THE COMPANY IS IRRELEVANT OR IS TO BE LOOKED UPON WITH
SUSPICION; BUT IT DOES MEAN THAT THEIRS IS NOT NECESSARILY THE LAST
WORD IN ARRIVING AT A CONCLUSION ABOUT HOW FALSTAFF SHOULD BE
CONSIDERED IN TERMS OF ITS STATUS AS A POTENTIAL ENTRANT INTO THE
MARKET IN ISSUE. 

SINCE IT APPEARS THAT THE DISTRICT COURT ENTERTAINED TOO NARROW A
VIEW OF FALSTAFF AS A POTENTIAL COMPETITOR AND SINCE IT APPEARS THAT
THE DISTRICT COURT'S CONCLUSION THAT THE MERGER POSED NO PROBABLE
THREAT TO COMPETITION FOLLOWED AUTOMATICALLY FROM THE FINDING THAT
FALSTAFF HAD NO INTENT TO ENTER DE NOVO, WE REMAND THIS CASE FOR THE
DISTRICT COURT TO MAKE THE PROPER ASSESSMENT OF FALSTAFF AS A POTENTIAL
COMPETITOR. 

     II 

BECAUSE WE REMAND FOR PROPER ASSESSMENT OF FALSTAFF AS AN ON-THE
FRINGE POTENTIAL COMPETITOR, IT IS NOT NECESSARY TO REACH THE QUESTION
OF WHETHER SEC. 7 BARS A MARKET-EXTENSION MERGER BY A COMPANY WHOSE
ENTRY INTO THE MARKET WOULD HAVE NO INFLUENCE WHATSOEVER ON THE PRESENT
STATE OF COMPETITION IN THE MARKET-- THAT IS, THE ENTRANT WILL NOT BE A
DOMINANT FORCE IN THE MARKET AND HAS NO CURRENT INFLUENCE IN THE
MARKETPLACE.  WE LEAVE FOR ANOTHER DAY THE QUESTION OF THE
APPLICABILITY OF SEC. 7 TO A MERGER THAT WILL LEAVE COMPETITION IN THE
MARKETPLACE EXACTLY AS IT WAS, NEITHER HURT NOR HELPED, AND THAT IS
CHALLENGEABLE UNDER SEC. 7 ON THE GROUNDS THAT THE COMPANY COULD, BUT
DID NOT, ENTER DE NOVO OR THROUGH "TOE-HOLD" ACQUISITION AND THAT THERE
IS LESS COMPETITION THAN THERE WOULD HAVE BEEN HAD ENTRY BEEN IN SUCH A
MANNER.  THERE ARE TRACES OF THIS VIEW IN OUR CASES, SEE FORD MOTOR CO.
V. UNITED STATES, 405 U.S. 562, 567(1972); ID., AT 587 (BURGER, C. J.,
CONCURRING IN PART AND DISSENTING IN PART); FTC V. PROCTER & GAMBLE
CO., 386 U.S.,AT 580; ID., AT 586 (HARLAN, J., CONCURRING); UNITED
STATES V. PENN-OLIN CHEMICAL CO., 378 U.S.,AT 173, BUT THE COURT HAS
NOT SQUARELY FACED THE QUESTION, /14/  IF FOR NO OTHER REASON THAN
BECAUSE THERE HAS BEEN NO NECESSITY TO CONSIDER IT.  SEE FORD MOTOR CO.
V. UNITED STATES, SUPRA; FTC V. PROCTER & GAMBLE CO., SUPRA; UNITED
STATES V. PENN-OLIN CHEMICAL CO., SUPRA; UNITED STATES V. EL PASO
NATURAL GAS CO., 376 U.S. 651(1964).     THE JUDGMENT OF THE DISTRICT
COURT DISMISSING THE COMPLAINT AGAINST FALSTAFF IS REVERSED, AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

SO ORDERED.     MR. JUSTICE BRENNAN TOOK NO PART IN THE DECISION OF
THIS CASE.  MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

/1/  SECTION 7 PROVIDES IN RELEVANT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 
15 U.S.C. 18. 

FOR THE LEGISLATIVE HISTORY OF THE AMENDMENT IN 1950 THAT GREATLY
EXPANDED THE SECTION'S SCOPE, 64 STAT. 1125, SEE BROWN SHOE CO. V.
UNITED STATES, 370 U.S. 294, 311-323(1962). 

/2/  JURISDICTION LIES UNDER SEC. 2 OF THE EXPEDITING ACT, 32 STAT.
823, AS AMENDED, 15 U.S.C. 29. 

/3/  MAINE, NEW HAMPSHIRE, VERMONT, MASSACHUSETTS, CONNECTICUT, AND
RHODE ISLAND. 

/4/  NATIONALLY, THE NUMBER OF BREWERS DECREASED FROM 663 IN 1935 TO
140 IN 1965. 

/5/  OF THE THREE "TOP TEN" BREWERS THAT WERE NOT SELLING IN NEW
ENGLAND, FALSTAFF RANKED FOURTH NATIONALLY, THE OTHER TWO RANKING
EIGHTH AND NINTH.  FROM BOSTON, MASSACHUSETTS, THE DISTANCE TO
FALSTAFF'S CLOSEST BREWERY WAS 844 MILES, WHILE THE DISTANCE TO THE
EIGHTH AND NINTH LARGEST SELLERS' BREWERIES WAS 1,385 AND 2,000 MILES
RESPECTIVELY. 

/6/  A "REGIONAL," AS CONTRASTED WITH A "NATIONAL" BREWER, IS ONE
THAT IS NOT SELLING IN ALL THE SIGNIFICANT NATIONAL MARKETS. 

/7/  IN 1958, FALSTAFF COMMISSIONED A STUDY OF ACTIONS IT SHOULD
TAKE TO MAXIMIZE PROFITS.  THE STUDY RECOMMENDED, INTER ALIAS, THAT
FALSTAFF BECOME A NATIONAL BREWER BY ENTERING THOSE AREAS WHERE IT WAS
NOT THEN MARKETING ITS PRODUCT, ESPECIALLY THE NORTHEAST, AND THAT
FALSTAFF SHOULD BUILD A BREWERY ON THE EAST COAST RATHER THAN BUY. 

/8/  FOR EXAMPLE, FALSTAFF IN SEVERAL PRESS RELEASES AND IN THE
COMPANY PUBLICATION EXPRESSED ITS DESIRE FOR NATIONAL DISTRIBUTION, AND
AT A PANEL DISCUSSION IN OCTOBER 1964 THE PRESIDENT OF FALSTAFF, IN
RESPONSE TO A QUESTION AS TO FALSTAFF'S REACTION TO INDUSTRY TRENDS IN
BEER SALES, STATED:  "FOR LONG RANGE PLANNING WE ARE AIMING FOR
NATIONAL DISTRIBUTION.  NATURALLY THIS INVOLVES COMING EAST."  APP.
82. 

/9/  SUIT WAS FILED AGAINST BOTH FALSTAFF AND NARRAGANSETT, BUT AS
TO THE LATTER, THE COMPLAINT WAS DISMISSED SHORTLY AFTER IT WAS FILED. 

/10/  HEREINAFTER, REFERENCE TO DE NOVO ENTRY INCLUDES "TOE-HOLD"
ACQUISITION AS WELL. 

/11/  OVER THE OBJECTIONS OF THE GOVERNMENT, THE DISTRICT COURT
ALLOWED POST-ACQUISITION EVIDENCE AND NOTED IN THE OPINION THAT THE
MARKET SHARE OF NARRAGANSETT DROPPED FROM 21.5% IN 1964 TO 15.5% IN
1969, WHILE THE SHARES OF THE TWO LEADING NATIONAL BREWERS INCREASED
FROM 16.5% TO 35.8%. 

/12/  SEE N. 8, SUPRA, AND ACCOMPANYING TEXT. 

/13/  IN FTC V. PROCTER & GAMBLE CO., 386 U.S. 568, 581(1967), WE
FOUND THE ACQUIRING COMPANY AT THE EDGE OF THE MARKET EXERTED
"CONSIDERABLE INFLUENCE" ON THE MARKET BECAUSE "MARKET BEHAVIOR . . .
WAS INFLUENCED BY EACH FIRM'S PREDICTIONS OF THE MARKET BEHAVIOR OF ITS
COMPETITORS, ACTUAL AND POTENTIAL"; BECAUSE "BARRIERS TO ENTRY . . .
WERE NOT SIGNIFICANT" AS TO THE ACQUIRING COMPANY; BECAUSE "THE NUMBER
OF POTENTIAL ENTRANTS WAS NOT SO LARGE THAT THE ELIMINATION OF ONE
WOULD BE INSIGNIFICANT"; AND BECAUSE THE ACQUIRING FIRM WAS THE MOST
LIKELY ENTRANT. 

IT IS SUGGESTED THAT THE DISTRICT COURT FAILED TO CONSIDER WHETHER
FALSTAFF WAS AN ON-THE-FRINGE POTENTIAL COMPETITOR WITH INFLUENCE ON
EXISTING COMPETITION BECAUSE THE GOVERNMENT NEVER ALLEGED IN ITS
COMPLAINT THAT FALSTAFF WAS EXERTING A PRESENT PROCOMPETITIVE
INFLUENCE, NEVER PROCEEDED UNDER THIS THEORY, AND FURTHER FAILED TO
INTRODUCE ANY EVIDENCE TO SUPPORT THIS VIEW.  BUT THIS POSITION MERELY
ASCRIBES AN ARBITRARY MEANING TO THE LANGUAGE OF THE COMPLAINT.  THE
GOVERNMENT IN ITS COMPLAINT ALLEGED THAT THE ACQUISITION VIOLATED SEC.
7 BECAUSE IT ELIMINATED POTENTIAL COMPETITION; SINCE POTENTIAL
COMPETITION MAY STIMULATE A PRESENT PROCOMPETITIVE INFLUENCE, THE
ALLEGATION CERTAINLY ENCOMPASSED THE "ON-THE-FRINGE INFLUENCE" THAT THE
DISTRICT COURT FAILED TO CONSIDER, AND THE GOVERNMENT WAS NOT REQUIRED
TO BE MORE SPECIFIC IN ITS ALLEGATION. 

THE GOVERNMENT DID NOT PRODUCE DIRECT EVIDENCE OF HOW MEMBERS OF THE
NEW ENGLAND MARKET REACTED TO POTENTIAL COMPETITION FROM FALSTAFF, BUT
CIRCUMSTANTIAL EVIDENCE IS THE LIFEBLOOD OF ANTITRUST LAW, SEE ZENITH
RADIO CORP. V. HAZELTINE RESEARCH, INC., 395 U.S. 100(1969); INTERSTATE
CIRCUIT, INC. V. UNITED STATES, 306 U.S. 208, 221(1939); FREY & SON,
INC. V. CUDAHY PACKING CO., 256 U.S. 208, 210(1921), ESPECIALLY FOR
SEC. 7 WHICH IS CONCERNED "WITH PROBABILITIES, NOT CERTAINTIES," BROWN
SHOE CO. V. UNITED STATES, 370 U.S.,AT 323.  AS WAS STATED IN UNITED
STATES V. PENN-OLIN CHEMICAL CO., 378 U.S. 158, 174(1964), "(POTENTIAL
COMPETITION CANNOT BE PUT TO A SUBJECTIVE TEST.  IT IS NOT 'SUSCEPTIBLE
OF A READY AND PRECISE ANSWER.'" 

NOR WAS THERE ANY LACK OF CIRCUMSTANTIAL EVIDENCE OF FALSTAFF'S ON
THE-FRINGE COMPETITIVE IMPACT.  AS THE RECORD SHOWS, FALSTAFF WAS IN
THE RELEVANT LINE OF COMMERCE, WAS ADMITTEDLY INTERESTED IN ENTERING
THE NORTHEAST, AND HAD, AMONG OTHER WAYS, SEE N. 8, SUPRA, MADE ITS
INTEREST KNOWN BY PRIOR-ACQUISITION DISCUSSIONS.  MOREOVER, THERE WERE,
AS MY BROTHER MARSHALL WOULD PUT IT, OBJECTIVE ECONOMIC FACTS AS TO
FALSTAFF'S CAPABILITY TO ENTER THE NEW ENGLAND MARKET; AND THE SAME
FACTS WHICH HE WOULD HAVE THE DISTRICT COURT LOOK TO IN DETERMINING
WHETHER THE PARTICULAR THEORY OF POTENTIAL COMPETITION WE DO NOT REACH
HAS BEEN VIOLATED, WOULD BE PROBATIVE OF VIOLATION OF SEC. 7 THROUGH
LOSS OF A PROCOMPETITIVE ON-THE-FRINGE INFLUENCE.  SEE FTC V. PROCTER &
GAMBLE CO., SUPRA, AT 580-581; UNITED STATES V. PENN-OLIN CHEMICAL CO.,
SUPRA, AT 173-177; UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S.
651, 660(1964). 

AND AS FOR THE CONTENTION THAT THE GOVERNMENT DID NOT PROCEED UNDER
THIS ON-THE-FRINGE INFLUENCE VIEW, THE RECORD IS TO THE CONTRARY.  AT
ONE POINT IN THE TRIAL, THE GOVERNMENT INFORMED THE TRIAL JUDGE THAT A
DEPOSITION WAS BEING INTRODUCED INTO EVIDENCE "TO ESTABLISH THAT
FALSTAFF WAS A COMPANY THAT WAS ON THE WINGS OR AT THE EDGE OF THE NEW
ENGLAND MARKET . . . WHAT I MEAN BY THAT IS THAT FALSTAFF WAS CAPABLE
AND INTERESTED IN ENTERING THE NEW ENGLAND MARKET AND WOULD BE WAITING
FOR THE OPPORTUNITY TO DEVELOP, BUT THAT FALSTAFF, OVER THE LONG TERM,
WOULD EVENTUALLY OR COULD EVENTUALLY OR WAS A LIKELY ENTRANT INTO THE
NEW ENGLAND MARKET, TO USE THE TERMINOLOGY IN FTC V. PROCTER & GAMBLE
COMPANY."  APP. 124.  FURTHER INTO ITS PRESENTATION OF PROOF, THE
GOVERNMENT WAS INTRODUCING EVIDENCE OF THE TREND TOWARD CONCENTRATION
IN THE MARKET, AND STATED:  "IT IS THIS CONCENTRATION, YOUR HONOR,
WHICH, AS WE ATTEMPTED TO POINT OUT IN OUR PRETRIAL BRIEF, MAKES
POTENTIAL COMPETITION . . .  THE CONCENTRATION OF SALES WITHIN A SMALL
NUMBER OF FIRMS IN NEW ENGLAND.  THIS IS WHAT MAKES THE POTENTIAL
COMPETITION . . . SO VERY, VERY IMPORTANT TO THIS MARKET . . . IN SUCH
A SITUATION THE POTENTIAL ENTRY OF A FRESH COMPETITIVE FACTOR IS OF
EXTREME IMPORTANCE."  APP. 170. 

THAT THE ON-THE-FRINGE INFLUENCE THEORY WAS ONE OF THE THEORIES THE
GOVERNMENT WAS PROCEEDING UNDER WAS APPARENT TO FALSTAFF.  IN ITS
OPENING STATEMENT, FALSTAFF STATED: 

"NOW, THE GOVERNMENT HAS A THEORY WHICH IS, SO FAR AS THE JUDICIAL
DETERMINATIONS ON THE POINT ARE CONCERNED, COMPARATIVELY NEW.  YOU WERE
HANDED THE OTHER DAY A PORTION OF THE RECORD IN FTC AGAINST BENDIX-FRAM
CORPORATION, AND YOU WERE HANDED AT THE SAME TIME A TYPED OR OTHERWISE
REPRODUCED COPY OF THE OPINION OF COMMISSIONER ELMAN OF THE FTC IN THAT
CASE. 

"THAT OPINION IS NOT YET OFFICIALLY REPORTED.  THE CASE IS ON ITS
WAY TO AN APPEAL . . . THE COMMISSIONER ANNOUNCED A THEORY UPON WHICH
THE GOVERNMENT RELIES AND WHICH THEY SAY LIES WITHIN THE AMBIT OF THIS
VAGUE, UNDEFINED CREATURE, POTENTIAL COMPETITION.  WHAT THAT DECISION,
ON APPEAL AS I SAY, WHAT THAT DECISION ANNOUNCES IS THE DOCTRINE WHICH
IS CALLED THE TOE-HOLD DOCTRINE, AND IT GOES LIKE THIS: 

"IF A PRODUCER OF PRODUCT A IS STANDING IN THE WINGS, AS THE
COMMISSIONER SAYS, OUTSIDE THE MARKET, MERELY STANDING THERE, BUT IN A
POSITION TO MOVE INTO THE MARKET IF HE CHOOSES.  HE MUST REMAIN THERE
IN THE WINGS AND FORBEAR ACQUIRING THE PRODUCER OF A LIKE PRODUCT
WITHIN THE MARKET AREA. 

"THE COMMISSIONER FANCIES THAT THE MERE PRESENCE OF SUCH A
MANUFACTURER OR SELLER CLOSE TO THE MARKET AREA HAD SOME EFFECT WHICH
COULD FALL WITHIN HIS ILL-DEFINED CONCEPT OF POTENTIAL COMPETITION. 
AND HE FOUND IN BENDIX-FRAM THAT BENDIX WAS IN SUCH A POSITION.  HE
FOUND THAT BENDIX COULD HAVE ACQUIRED A SMALL COMPANY RATHER THAN FRAM,
A RELATIVELY LARGER ONE, BEEFED IT UP BY EXPENDITURES OF MONEY WHICH
BENDIX COULD AFFORD, AND DEVELOP IT INTO A FULL-BLOWN COMPETITOR WITHIN
THE MARKET AREA.  I DO NOT KNOW WHETHER THAT NOTION WILL GAIN
SUBSTANTIAL ACCEPTANCE IN THE THEORY OF ANTITRUST LAW.  I DO NOT KNOW
THAT IT WILL HAVE THE APPROVAL OF THE SUPREME COURT IF AND WHEN IT EVER
REACHES IT.  I DO KNOW, HOWEVER, THAT THAT IS AN ENTIRELY DIFFERENT
SITUATION (THAN) WE HAVE HERE. 

"IF THERE IS ANY SENSE TO THIS TOTAL THEORY AT ALL IT MUST BE THAT
THE ACQUIRING COMPANY WAS IN FACT SO CLOSELY LOCATED TO THE MARKET
SERVED BY THE ACQUIRED COMPANY THAT ITS ENTRANCE INTO THE MARKET
UNILATERALLY, UNDER ITS OWN STEAM, WITHOUT MOTIVATION WAS A DISTINCT
THREAT TO THOSE WHO WERE COMPETING IN THE MARKET."  APP. 182183. 

FALSTAFF THEN PROCEEDED TO STATE WHY IT FELT THAT THE ON-THE-FRINGE
INFLUENCE THEORY DID NOT APPLY IN THIS CASE. 

DURING ITS PROOF, FALSTAFF HAD BOTH ITS EXPERT WITNESS ON ECONOMICS,
APP. 257, AND AN OFFICER OF NARRAGANSETT, APP. 376, TESTIFY AS TO
WHETHER FALSTAFF'S PRESENCE HAD A PROCOMPETITIVE EFFECT, BOTH STATING
THAT IT DID NOT. 

/14/  IT IS SUGGESTED THAT CERTAIN LANGUAGE IN THE COURT'S OPINION
IN UNITED STATES V. CONTINENTAL CAN CO., 378 U.S. 441, 464(1964), IS TO
THE CONTRARY.  BUT THERE THE MERGER WAS HELD PROVED PRIMA FACIE
ANTICOMPETITIVE BECAUSE THE ACQUIRING AND ACQUIRED COMPANIES WERE
ENGAGED IN THE SAME OVERALL LINE OF COMMERCE IN THE SAME GEOGRAPHIC
MARKET.  THIS NOTWITHSTANDING, IT IS AGAIN ONLY ARBITRARY TO ASSUME
THAT THE QUOTED LANGUAGE WAS NOT REFERRING TO THE ACQUIRED COMPANY'S ON
THE-FRINGE INFLUENCE AS A POTENTIAL COMPETITOR FOR CERTAIN END USES FOR
CONTAINERS. 

MR. JUSTICE DOUGLAS, CONCURRING IN PART. 

ALTHOUGH I JOIN PART I OF THE COURT'S OPINION AND ITS JUDGMENT
REMANDING THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THE OPINION, I OFFER THE FOLLOWING OBSERVATIONS WITH
RESPECT TO THE QUESTION WHICH THE COURT DOES NOT REACH. 

THERE CAN BE NO QUESTION THAT IT WOULD BE SUFFICIENT FOR THE
GOVERNMENT TO PROVE ITS CASE TO SHOW THAT FALSTAFF WOULD HAVE MADE A DE
NOVO ENTRY BUT FOR THE ACQUISITION OF NARRAGANSETT OR THAT FALSTAFF WAS
A POTENTIAL COMPETITOR EXERCISING PRESENT INFLUENCE ON THE MARKET.  SEE
FORD MOTOR CO. V. UNITED STATES, 405 U.S. 562; FTC V. PROCTER & GAMBLE
CO., 386 U.S. 568; UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S.
158; UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S. 651.  BUT, I DO
NOT BELIEVE THAT IT WAS A PREREQUISITE TO THE GOVERNMENT'S CASE TO
PROVE THAT THE ACQUISITION HAD MARKED IMMEDIATE, I.E., PRESENT,
ANTICOMPETITIVE EFFECTS. 

MARKETS.  IT DOES NOT REQUIRE "MERELY AN APPRAISAL OF THE IMMEDIATE
IMPACT OF THE MERGER UPON COMPETITION, BUT A PREDICTION OF ITS IMPACT
UPON COMPETITIVE CONDITIONS IN THE FUTURE . . . "  UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 362.  IN UNITED STATES V.
PENN-OLIN CHEMICAL CO., SUPRA, AT 170-171, THE COURT SAID. 

"THE GRAND DESIGN OF THE ORIGINAL SEC. 7, AS TO STOCK ACQUISITIONS,
AS WELL AS THE CELLER-KEFAUVER AMENDMENT, AS TO THE ACQUISITION OF
ASSETS, WAS TO ARREST INCIPIENT THREATS TO COMPETITION WHICH THE
SHERMAN ACT DID NOT ORDINARILY REACH.  IT FOLLOWS THAT ACTUAL
RESTRAINTS NEED NOT BE PROVED.  THE REQUIREMENTS OF THE AMENDMENT ARE
SATISFIED WHEN A 'TENDENCY'  TOWARD MONOPOLY OR THE 'REASONABLE
LIKELIHOOD' OF A SUBSTANTIAL LESSENING OF COMPETITION IN THE RELEVANT
MARKET IS SHOWN."  MOREOVER, WE ARE CONCERNED WITH PROBABILITIES, NOT
CERTAINTIES.  SEE BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 323. 

FALSTAFF ACQUIRED NARRAGANSETT IN 1965.  PRIOR TO THAT TIME,
FALSTAFF WAS THE LARGEST BREWER IN THE COUNTRY THAT DID NOT SELL IN THE
NEW ENGLAND MARKET.  IT HAD STATED PUBLICLY THAT IT WANTED TO BECOME A
NATIONAL BREWER TO ALLOW IT TO COMPETE MORE EFFECTIVELY WITH THE
EXISTING NATIONAL BREWERS.  FALSTAFF HAS CONCEDED IN ITS BRIEF THAT
"GIVEN AN ACCEPTABLE LEVEL PROFIT IT HAD THE FINANCIAL CAPABILITY AND
THE INTEREST TO ENTER THE NEW ENGLAND BEER MARKET." 

DURING THE FOUR YEARS PRECEDING 1965, BEER SALES IN NEW ENGLAND HAD
INCREASED APPROXIMATELY 9.5%.  NEVERTHELESS, THE MARKET HAD BECOME MORE
CONCENTRATED.  IN 1960, THE EIGHT LARGEST SELLERS ACCOUNTED FOR
APPROXIMATELY 74% OF THE BEER SALES; BY 1964, THEY ACCOUNTED FOR 81.2%.
FROM 1957 TO 1964, THE NUMBER OF BREWERIES DECREASED FROM 11 TO 6.  IN
ADDITION, THERE IS EVIDENCE THAT TWO OF THE REMAINING BREWERIES WERE
INTERESTED IN BEING ACQUIRED.  AND, BY FALSTAFF'S OWN ADMISSION, "(AT
THE TIME OF THE ACQUISITION, THE SUBSTANTIAL GROWTH IN THE MARKET
SHARES OF THE NATIONAL BREWERS WAS JUST BEGINNING TO OCCUR."     ONE OF
THE PRINCIPAL PURPOSES OF SEC. 7 WAS TO STEM THE "'RISING TIDE' OF
CONCENTRATION IN AMERICAN BUSINESS."  UNITED STATES V. PABST BREWING
CO., 384 U.S. 546, 552.  WHEN AN INDUSTRY OR A MARKET EVIDENCES SIGNS
OF DECREASING COMPETITION, WE CANNOT ALLOW AN ACQUISITION WHICH MAY
"TEND TO ACCELERATE CONCENTRATION."  IBID,; BROWN SHOE CO. V. UNITED
STATES, SUPRA, AT 346. 

THE IMPLICATIONS OF THE CLAYTON ACT, AS AMENDED BY THE CELLER
KEFAUVER ACT, 15 U.S.C. 18, ARE MUCH, MUCH BROADER THAN THE CUSTOMARY
RESTRAINTS OF COMPETITION AND THE POWER OF MONOPOLY.  LOUIS D. BRANDEIS
TESTIFIED IN FAVOR OF THE BILL THAT BECAME THE CLAYTON ACT IN 1914. 
"YOU CANNOT HAVE TRUE AMERICAN CITIZENSHIP, YOU CANNOT PRESERVE
POLITICAL LIBERTY, YOU CANNOT SECURE AMERICAN STANDARDS OF LIVING
UNLESS SOME DEGREE OF INDUSTRIAL LIBERTY ACCOMPANIES IT."  /1/  HE WENT
ON TO SAY /2/  IN ANSWER TO GEORGE W. PERKINS, WHO TESTIFIED AGAINST
THE BILL: 

"MR. PERKINS' ARGUMENT IN FAVOR OF THE EFFICIENCY OF MONOPOLY

  PROCEEDS UPON THE ASSUMPTION, IN THE FIRST PLACE, AND MAINLY UPON

  THE ASSUMPTION, THAT WITH INCREASE OF SIZE COMES INCREASE OF

  EFFICIENCY.  IF ANY GENERAL PROPOSITION COULD BE LAID DOWN ON

  THAT SUBJECT, IT WOULD, IN MY OPINION, BE THE OPPOSITE.  IT IS,
OF

  COURSE, TRUE THAT A BUSINESS UNIT MAY BE TOO SMALL TO BE

  EFFICIENT, BUT IT IS EQUALLY TRUE THAT A UNIT MAY BE TOO LARGE TO

  BE EFFICIENT.  AND THE CIRCUMSTANCES ATTENDING BUSINESS TO-DAY

  ARE SUCH THAT THE TEMPTATION IS TOWARD THE CREATION OF TOO LARGE

UNITS OF EFFICIENCY RATHER THAN TOO SMALL.  THE TENDENCY TO

  CREATE LARGE UNITS IS GREAT, NOT BECAUSE LARGER UNITS TEND TO

  GREATER EFFICIENCY, BUT BECAUSE THE OWNER OF A BUSINESS MAY MAKE

  A GREAT DEAL MORE MONEY IF HE INCREASES THE VOLUME OF HIS

  BUSINESS TENFOLD, EVEN IF THE UNIT PROFIT IS IN THE PROCESS

  REDUCED ONE-HALF.  IT MAY, THEREFORE, BE FOR THE INTEREST OF AN

  OWNER OF A BUSINESS WHO HAS CAPITAL, OR WHO CAN OBTAIN CAPITAL AT

  A REASONABLE COST, TO FORFEIT EFFICIENCY TO A CERTAIN DEGREE,

  BECAUSE THE RESULT TO HIM, IN PROFITS, MAY BE GREATER BY REASON

  OF THE VOLUME OF THE BUSINESS.  NOW, NOT ONLY MAY THAT BE SO, BUT

  IN VERY MANY CASES IT IS SO. 

     "AND THE REASON WHY . . . INCREASING THE SIZE OF A BUSINESS
MAY

  TEND TO INEFFICIENCY IS PERFECTLY OBVIOUS WHEN ONE STOPS TO

  CONSIDER.  ANYONE WHO CRITICALLY ANALYZES A BUSINESS LEARNS THIS:

   THAT SUCCESS OR FAILURE OF AN ENTERPRISE DEPENDS USUALLY UPON

  ONE MAN; UPON THE QUALITY OF ONE MAN'S JUDGMENT, AND, ABOVE ALL

  THINGS, HIS CAPACITY TO SEE WHAT IS NEEDED AND HIS CAPACITY TO

  DIRECT OTHERS." 

THAT IS WHY THE CELLER COMMITTEE REPORTING IN 1971 ON CONGLOMERATES
AND OTHER TYPES OF MERGERS /3/  SAID THAT "PRESERVATION OF A
COMPETITIVE SYSTEM WAS SEEN AS ESSENTIAL TO AVOID THE CONCENTRATION OF
ECONOMIC POWER THAT WAS THOUGHT TO BE A THREAT TO THE NATION'S
POLITICAL AND SOCIAL SYSTEM."  /4/  CONTROL OF AMERICAN BUSINESS IS
BEING TRANSFERRED FROM LOCAL COMMUNITIES TO DISTANT CITIES WHERE MEN ON
THE 54TH FLOOR WITH ONLY BALANCE SHEETS AND PROFIT AND LOSS STATEMENTS
BEFORE THEM DECIDE THE FATE OF COMMUNITIES WITH WHICH THEY HAVE LITTLE
OR NO RELATIONSHIP.  AS A RESULT OF MERGERS AND OTHER ACQUISITIONS,
SOME STATES ARE LOSING MAJOR CORPORATE HEADQUARTERS AND THEIR LOCAL
COMMUNITIES ARE BECOMING SATELLITES OF A DISTANT CORPORATE CONTROL. 
/5/  THE ANTITRUST LAWS FAVORED A WIDE DIFFUSION OF CORPORATE CONTROL;
AND THAT AIM HAS BEEN LARGELY DEFEATED WITH SERIOUS CONSEQUENCES. 
THUS, A RECENT WISCONSIN STUDY SHOWS THAT "(THE GROWTH OF AGGREGATE
WISCONSIN EMPLOYMENT OF COMPANIES ACQUIRED BY OUT-OF-STATE CORPORATIONS
DECLINES SUBSTANTIALLY MORE THAN THAT OF THOSE ACQUIRED BY IN-STATE
CORPORATIONS."  /6/  IN THIS CONNECTION, THE CELLER REPORTS STATES:
/7/ 

     "THE WISCONSIN STUDY FOUND, ALSO, THAT 53 PERCENT OF ACQUIRED

  COMPANIES AFTER THE MERGER HAD A SLOWER RATE OF PAYROLL GROWTH. 

  PAYROLL GROWTH, NOTABLY IN LARGE FIRMS ACQUIRED BY OUT-OF-STATE

  CORPORATIONS, WAS DEPRESSED BY MERGERS.  INFLATION IN RECENT

  YEARS HAS MARKEDLY RAISED WAGES AND SALARIES.  IT WOULD BE

REASONABLE TO EXPECT THAT PAYROLLS IN ACQUIRED COMPANIES, BECAUSE

  OF THE INFLATION, WOULD HAVE ADVANCED MORE THAN EMPLOYMENT.  IN

  THIS CONNECTION, THE REPORT STATES:  'THE FACT THAT THIS

  FREQUENTLY DID NOT HAPPEN IN COMPANIES ACQUIRED BY OUT-OF-STATE

  FIRMS WOULD LEAD ONE TO BELIEVE THAT THEIR ACQUIRERS HAVE

  TRANSFERRED A PORTION OF THE HIGHER SALARIED EMPLOYEES TO A

  LOCATION OUTSIDE WISCONSIN.  SUCH TRANSFERS MEAN A LOSS OF

  TALENT, RETAIL EXPENDITURES, AND PERSONAL INCOME TAXES IN THE

  ECONOMIES OF WISCONSIN'S COMMUNITIES AND THE STATE.'" 

THE ADVERSE INFLUENCE ON LOCAL AFFAIRS OF OUT-OF-STATE ACQUISITIONS
HAS NOT GONE UNNOTICED IN OUR OPINIONS.  THUS "THE DESIRABILITY OF
RETAINING 'LOCAL CONTROL' OVER INDUSTRY AND THE PROTECTION OF SMALL
BUSINESSES" WAS OUR COMMENT IN BROWN SHOE CO. V. UNITED STATES, 370
U.S.,AT 315-316, ON ONE OF THE PURPOSES OF STRENGTHENING SEC. 7 OF THE
CLAYTON ACT THROUGH PASSAGE OF THE CELLER-KEFAUVER ACT. 

BY REASON OF THE ANTITRUST LAWS, EFFICIENCY IN TERMS OF THE ACCOUNTING
OF DOLLAR COSTS AND PROFITS IS NOT THE MEASURE OF THE PUBLIC INTEREST
NOR IS GROWTH IN SIZE WHERE NO SUBSTANTIAL COMPETITION IS CURTAILED. 
THE ANTITRUST LAWS LOOK WITH SUSPICION ON THE ACQUISITION OF LOCAL
BUSINESS UNITS BY OUT-OF-STATE COMPANIES.  FOR THEN LOCAL EMPLOYMENT IS
APT TO SUFFER, LOCAL PAYROLLS ARE LIKELY TO DROP OFF, AND RESPONSIBLE
ENTREPRENEURS IN COUNTIES AND STATES ARE REPLACED BY CLERKS. 

A CASE IN POINT IN GOLDENDALE IN MY STATE OF WASHINGTON.  IT WAS A
THRIVING COMMUNITY-- AN IDEAL PLACE TO RAISE A FAMILY-- UNTIL THE
COMPANY THAT OWNED THE SAWMILL WAS BOUGHT BY AN OUT-OF-STATE GIANT.  IN
A YEAR OR SO, AUDITORS IN FARAWAY NEW YORK CITY, WHO NEVER KNEW THE
GLORIES OF GOLDENDALE, DECIDED TO CLOSE THE LOCAL MILL AND TRUCK ALL
THE LOGS TO YAKIMA.  GOLDENDALE BECAME GREATLY CRIPPLED.  IT IS EXHIBIT
A TO THE BRANDEIS CONCERN, WHICH BECAME PART OF THE CLAYTON ACT
CONCERN, WITH THE EFFECTS THAT THE IMPACT OF MONOPOLY OFTEN HAS ON A
COMMUNITY, AS CONTRASTED WITH THE BENEFICENT EFFECT OF COMPETITION. 

A NATION OF CLERKS IS ANATHEMA TO THE AMERICAN ANTITRUST DREAM.  SO
IS THE SPAWNING OF FEDERAL REGULATORY AGENCIES TO POLICE THE MOUNTING
ECONOMIC POWER.  FOR THE PATH OF THOSE WHO WANT THE CONCENTRATION OF
POWER TO DEVELOP UNHINDERED LEADS PREDICTABLY TO SOCIALISM THAT IS
ANTAGONISTIC TO OUR SYSTEM.  SEE BLAKE & JONES, THE GOALS OF ANTITRUST:
A DIALOGUE ON POLICY-- IN DEFENSE OF ANTITRUST, 65 COL.L.REV. 
377(1965). 

IT IS AGAINST THIS BACKGROUND THAT WE MUST ASSESS THE ACQUISITION BY
FALSTAFF, THE LARGEST PRODUCER OF BEER IN THE UNITED STATES THAT DID
NOT SELL IN THE NEW ENGLAND MARKET, OF THE LEADING SELLER IN THAT
MARKET. 

IN UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S.,AT 660, WE
INDICATED THAT "(THE EFFECT ON COMPETITION IN A PARTICULAR MARKET
THROUGH ACQUISITION OF ANOTHER COMPANY IS DETERMINED BY THE NATURE OR
EXTENT OF THAT MARKET AND BY THE NEARNESS OF THE ABSORBED COMPANY TO
IT, THAT COMPANY'S EAGERNESS TO ENTER THAT MARKET, ITS RESOURCEFULNESS,
AND SO ON."  FALSTAFF'S PRESIDENT TESTIFIED BELOW THAT FALSTAFF FOR
SOME TIME HAD WANTED TO ENTER THE NEW ENGLAND MARKET AS PART OF ITS
INTEREST IN BECOMING A NATIONAL BREWER.  AND FALSTAFF HAS CONCEDED IN
ITS BRIEF BEFORE THIS COURT THAT "GIVEN AND ACCEPTABLE LEVEL OF PROFIT
IT HAD THE FINANCIAL CAPABILITY AND THE INTEREST TO ENTER THE NEW
ENGLAND BEER MARKET."  WITH BOTH THE INTEREST AND THE CAPABILITY TO
ENTER THE MARKET, FALSTAFF WAS "THE MOST LIKELY ENTRANT."  FTC V.
PROCTER & GAMBLE CO., 386 U.S.,AT 581.  THUS, ALTHOUGH FALSTAFF MIGHT
NOT HAVE MADE A DE NOVO ENTRY IF IT HAD NOT BEEN ALLOWED TO ACQUIRE
NARRAGANSETT, /8/  WE CANNOT SAY THAT IT WOULD BE UNWILLING TO MAKE
SUCH AN ENTRY IN THE FUTURE WHEN THE NEW ENGLAND MARKET MIGHT BE RIPE
FOR AN INFUSION OF NEW COMPETITION.  AT THIS POINT IN TIME, IT IS THE
MOST LIKELY NEW COMPETITOR.  MOREOVER, THERE CAN BE NO QUESTION THAT
REPLACING THE LEADING SELLER IN THE MARKET, A REGIONAL BREWER, WITH A
SELLER WITH NATIONAL CAPABILITIES INCREASED THE TREND TOWARD
CONCENTRATION. 

I CONCLUDE THAT THERE IS "REASONABLE LIKELIHOOD" THAT THE
ACQUISITION IN QUESTION "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION." 
ACCORDINGLY, I WOULD BE INCLINED TO REVERSE AND DIRECT THE DISTRICT
JUDGE TO ENTER JUDGMENT FOR THE GOVERNMENT AND AFFORD APPROPRIATE
RELIEF.  NEVERTHELESS, SINCE THE COURT WILL NOT REACH THIS QUESTION AND
I AGREE WITH THE LEGAL PRINCIPLES SET FORTH IN PART I OF ITS OPINION, I
JOIN THE JUDGMENT REMANDING THE CASE FOR FURTHER PROCEEDINGS. 

/1/  HEARINGS ON S. RES. 98 BEFORE THE SENATE COMMITTEE ON
INTERSTATE COMMERCE, 62D CONG., VOL. 1, P. 1155. 

/2/  ID., AT 1147 

/3/  INVESTIGATION OF CONGLOMERATE CORPORATIONS, REPORT BY THE STAFF
OF ANTITRUST SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY ON H.
RES. 161, 92D CONG., 1ST SESS. (COMM. PRINT). 

/4/  ID., AT 18. 

/5/  ID., AT 52-53. 

/6/  ID., AT 53. 

/7/  ID., AT 54. 

/8/ FALSTAFF CONTENDED BELOW THAT A DE NOVO ENTRY WOULD NOT BE
PROFITABLE.  MANAGEMENT STATED THAT AN ESTABLISHED DISTRIBUTION SYSTEM
WAS A PREREQUISITE TO ENTRY.  THE DISTRICT JUDGE CONCLUDED THAT "(THE
CREDIBLE EVIDENCE ESTABLISHES THAT (FALSTAFF) WAS NOT A POTENTIAL
ENTRANT INTO SAID MARKET BY ANY MEANS OR WAY OTHER THAN BY SAID
ACQUISITION."  332 F.SUPP.  970, 972. 

MR. JUSTICE MARSHALL, CONCURRING IN THE RESULT. 

I SHARE THE MAJORITY'S VIEW THAT THE DISTRICT JUDGE ERRED AS A
MATTER OF LAW AND THAT THE CASE MUST BE REMANDED FOR FURTHER
PROCEEDINGS.  I CANNOT AGREE, HOWEVER, WITH THE THEORY UPON WHICH THE
MAJORITY BASES THE REMAND. 

THE MAJORITY ACCUSES THE DISTRICT JUDGE OF NEGLECTING TO ASSESS THE
PRESENT PROCOMPETITIVE EFFECT WHICH FALSTAFF EXERTED BY REMAINING ON
THE FRINGE OF THE MARKET.  THE EXPLANATION FOR THIS FAILING IS RATHER
SIMPLE.  THE GOVERNMENT NEVER ALLEGED IN ITS COMPLAINT THAT FALSTAFF
WAS EXERTING A PRESENT PROCOMPETITIVE INFLUENCE, /1/  IT INTRODUCED NOT
A SCRAP OF EVIDENCE TO SUPPORT THIS VIEW, /2/  AND EVEN AT THIS STAGE
OF THE PROCEEDINGS, IT SEEMINGLY DISCLAIMS RELIANCE ON THIS THEORY. 
/3/

THUS, OUR REMAND LEAVES THE HAPLESS DISTRICT JUDGE WITH THE
UNENVIABLE TASK OF REASSESSING NONEXISTENT EVIDENCE UNDER A THEORY
ADVANCED BY NEITHER OF THE PARTIES.  I SUBMIT THAT CIVIL ANTITRUST
LITIGATION IS COMPLICATED ENOUGH WHEN THE TRIAL JUDGE CONFINES HIS
ATTENTION TO THE LEGAL ARGUMENTS AND EVIDENCE OFFERED BY THE PARTIES
AND AVOIDS INVESTIGATION OF HYPOTHETICAL LAWSUITS WHICH MIGHT HAVE BEEN
BROUGHT. 

THE MAJORITY'S DEPARTURE FROM THIS SELF-EVIDENT PROPOSITION IS ALL
THE MORE STARTLING WHEN ONE REALIZES THAT THE COURT ESCHEWS RELIANCE ON
A WELL-ESTABLISHED, PLAINLY APPLICABLE BODY OF LAW IN ORDER TO REACH
QUESTIONS NOT PROPERLY BEFORE IT.  AS MR. JUSTICE DOUGLAS ABLY
DEMONSTRATES, SEE ANTE, AT 539-540, MANY DECISIONS BY THIS COURT HOLD
THAT SEC. 7 IS VIOLATED WHEN A MERGER IS REASONABLE LIKELY TO ELIMINATE
FUTURE OR POTENTIAL COMPETITION.  SEE ALSO INFRA, AT 560-562.  I KNOW
OF NO CASE SUGGESTING THAT THIS PRINCIPLE IS ONLY APPLICABLE WHEN THE
PLAINTIFF CAN SHOW THAT THE MERGER WILL HAVE PRESENT ANTI-COMPETITIVE
CONSEQUENCES, AND THE MAJORITY CITES NO AUTHORITY FOR THIS
PROPOSITION. 

IN THE COURSE OF A NINE-DAY TRIAL, THE GOVERNMENT INTRODUCED
VOLUMINOUS EVIDENCE TO SUPPORT ITS POTENTIAL COMPETITION THEORY.  BUT
AT THE CONCLUSION OF THE TRIAL, THE DISTRICT JUDGE DISMISSED THE
GOVERNMENT'S ACTION IN AN OPINION COVERING A SCANT TWO AND ONE-HALF
PAGES IN THE FEDERAL SUPPLEMENT /4/  AND WITHOUT MAKING ANY FINDINGS OF
FACT OR CONCLUSIONS OF LAW.  /5/  SEE UNITED STATES V. FALSTAFF BREWING
CORP., 332 F.SUPP.  970(RI 1971). 

THE COURT HELD THAT FALSTAFF "WAS NOT A POTENTIAL ENTRANT INTO SAID
MARKET BY ANY MEANS OR WAY OTHER THAN BY SAID ACQUISITION. 
CONSEQUENTLY, IT CANNOT BE SAID THAT ITS ACQUISITION OF NARRAGANSETT
ELIMINATED IT AS A POTENTIAL COMPETITOR THEREIN."  ID., AT 972.  THE
DISTRICT JUDGE BASED THIS CONCLUSION ON TESTIMONY BY FALSTAFF EXECUTIVE
PERSONNEL THAT "FALSTAFF HAD CONSISTENTLY DECIDED NOT TO ATTEMPT TO
ENTER SAID MARKET UNLESS IT COULD ACQUIRE A BREWERY WITH A STRONG AND
VIABLE DISTRIBUTION SYSTEM SUCH AS THAT POSSESSED BY NARRAGANSETT." 
IBID. 

INASMUCH AS THE DISTRICT COURT GROUNDED ITS DISMISSAL ON THESE
CONCLUSIONS, I THINK WE HAVE A RESPONSIBILITY TO ASSESS THE VALIDITY OF
THE LEGAL STANDARD FROM WHICH THEY ARE DERIVED.  I WOULD HOLD THAT
WHERE, AS HERE, STRONG OBJECTIVE EVIDENCE INDICATES THAT A FIRM IS A
POTENTIAL ENTRANT INTO A MARKET, IT IS ERROR FOR THE TRIAL JUDGE TO
RELY SOLELY ON THE FIRM'S SUBJECTIVE PREDICTION OF ITS OWN FUTURE
CONDUCT.  WHILE SUCH SUBJECTIVE EVIDENCE IS PROBATIVE ON THE ISSUE OF
POTENTIAL ENTRY, IT IS INHERENTLY UNRELIABLE AND MUST BE USED WITH
GREAT CARE.  ORDINARILY, THE DISTRICT COURT SHOULD PRESUME THAT
OBJECTIVELY MEASURABLE MARKET FORCES WILL GOVERN A FIRM'S FUTURE
CONDUCT.  ONLY WHEN THERE IS A COMPELLING DEMONSTRATION THAT A FIRM
WILL NOT FOLLOW ITS ECONOMIC SELF-INTEREST MAY THE DISTRICT COURT
CONSIDER SUBJECTIVE EVIDENCE IN PREDICTING THAT CONDUCT.  EVEN THEN,
SUBJECTIVE EVIDENCE SHOULD BE PREFERRED ONLY WHEN THE OBJECTIVE
EVIDENCE IS WEAK OR CONTRADICTORY.  BECAUSE THE DISTRICT COURT FAILED
TO APPLY THESE STANDARDS, I WOULD REMAND THE CASE FOR FURTHER
CONSIDERATION.              I 

ALTHOUGH THIS CASE ULTIMATELY TURNS ON A POINT OF LAW, IT CANNOT BE
SATISFACTORILY UNDERSTOOD WITHOUT SOME APPRECIATION OF THE FACTUAL
CONTEXT IN WHICH IT ARISES.  A SOMEWHAT MORE DETAILED DESCRIPTION OF
THE RELEVANT LINE OF COMMERCE, THE RELEVANT GEOGRAPHIC MARKET, AND THE
MARKET STRUCTURE THAN THAT PROVIDED BY THE MAJORITY IS THEREFORE IN
ORDER. 

  A. THE PRODUCT MARKET     THE RELEVANT PRODUCT MARKET IS THE
PRODUCTION AND SALE OF BEER.  THE FIRMS COMPETING FOR THIS MARKET CAN
BE DIVIDED INTO THREE CATEGORIES:  NATIONAL, REGIONAL, AND LOCAL.  THE
NATIONAL FIRMS, ANHEUSER-BUSCH, SCHLITZ, PABST, AND MILLER, SELL THEIR
PRODUCT THROUGHOUT THE COUNTRY AND ADVERTISE ON A NATIONAL BASIS.  IN
CONTRAST, THE REGIONAL FIRMS, THE LARGEST OF WHICH ARE HAMM'S, CARLING,
COORS, FALSTAFF, AND NATIONAL BOHEMIAN, MARKET THEIR BEER IN NARROWER
GEOGRAPHICAL AREAS OF VARYING SIZE.  LOCAL BREWERS SELL THEIR PRODUCT
IN A SMALL AREA, SOMETIMES NO LARGER THAN A SINGLE STATE. 

ORIGINALLY, MOST OF THE MARKET WAS HELD BY A LARGE NUMBER OF SMALL
LOCAL AND REGIONAL BREWERS.  THE HIGH COST OF TRANSPORTING BEER FAVORED
THE LOCAL DISTRIBUTOR IN EARLY YEARS.  BUT MORE RECENTLY, THE NATIONAL
BREWERS HAVE BEEN ABLE TO OVERCOME THIS DIFFICULTY TO SOME EXTENT BY
DECENTRALIZING THEIR PRODUCTION FACILITIES.  MOREOVER, ANY REMAINING
EXTRA TRANSPORTATION COSTS ASSOCIATED WITH NATIONAL DISTRIBUTION ARE
NOW OUTWEIGHED BY THE ADVANTAGES OF CENTRALIZED MANAGEMENT AND,
ESPECIALLY, NATIONAL ADVERTISING.  THUS, IN RECENT YEARS, WHILE THE
BEER MARKET AS A WHOLE HAS EXPANDED, THE NUMBER OF BREWERIES HAS
DECLINED DRAMATICALLY.  SEE UNITED STATES V. PABST BREWING CO., 384
U.S. 546, 550(1966).  WHEREAS IN 1935 THERE WERE 684 BREWING PLANTS
OPERATING IN THE UNITED STATES, BY 1965 THE NUMBER HAD BEEN REDUCED TO
178.  ECONOMIES OF SCALE, A RELATIVELY LOW PROFIT MARGIN, AND
SIGNIFICANT BARRIERS TO MARKET ENTRY HAVE ALL LED TO A CONCENTRATION OF
BEER PRODUCTION AMONG THE FEW NATIONAL AND LARGE REGIONAL BREWERS. 

        B. THE GEOGRAPHIC MARKET 

THESE NATIONAL TRENDS ARE REFLECTED IN THE SIX NEW ENGLAND STATES,
WHICH CONSTITUTE THE RELEVANT GEOGRAPHIC MARKET.  IN THE FOUR YEARS
PRECEDING FALSTAFF'S ACQUISITION OF NARRAGANSETT, NEW ENGLAND BEER
SALES INCREASED 9.5%-- A SUBSTANTIAL GAIN, ALTHOUGH SOMEWHAT BELOW THE
INCREASE IN NATIONAL SALES FOR THE SAME PERIOD.  AT THE SAME TIME,
HOWEVER, THE NUMBER OF BREWERS OPERATING PLANTS IN THE REGION DECLINED
PRECIPITATELY.  THUS, IN 1957, THERE WERE 11 BREWERIES IN THE NEW
ENGLAND STATES, BUT BY 1964 THE NUMBER HAD DECLINED TO SIX, AND OF
THOSE SIX, TWO OF THE THREE SMALLEST HAD PUBLICLY EXPRESSED AN INTEREST
IN MERGING WITH A LARGER COMPETITOR. 

NOT SURPRISINGLY, THIS DECLINE IN THE NUMBER OF BREWERIES IN NEW
ENGLAND WAS ACCOMPANIED BY AN INCREASE IN THE MARKET SHARES OF THOSE
SELLING IN THE REGION.  IN 1960, THE EIGHT LARGEST PARTICIPANTS IN THE
NEW ENGLAND MARKET CLAIMED 74% OF ALL BEER SALES, AND BY 1964 THIS
FIGURE HAD RISEN TO 81.2%.  EXAMINATION OF THE FOUR LARGEST BREWERS
SHOWS THAT THEIR SHARE OF THE MARKET ROSE FROM ABOUT 50% IN 1960 TO 54%
IN 1964, TO 61.3% IN 1965.  IN LARGE PART, THESE FIGURES ARE PROBABLY
EXPLICABLE IN TERMS OF THE NATIONWIDE TREND IN FAVOR OF THE LARGE
NATIONAL AND REGIONAL BREWERS.  SEVEN OF THE NATION'S 10 LARGEST
BREWERIES, INCLUDING, OF COURSE, ALL THE NATIONAL BREWERIES, SELL BEER
IN NEW ENGLAND, AND THEIR SHARE OF THE MARKET HAS INCREASED AS THE
SMALL, LOCAL BREWERS DISAPPEARED. 

AT THE SAME TIME, HOWEVER, THE CONCENTRATION OF THE MARKET DOES NOT
YET SEEM TO HAVE PRODUCED BLATANTLY ANTICOMPETITIVE EFFECTS.  IN RECENT
YEARS, PRICES HAVE REMAINED FAIRLY STABLE DESPITE RISING COSTS, AND
COMPETITION SEEMS RELATIVELY INTENSE AMONG THE FEW LARGE FIRMS WHICH
DOMINATE THE MARKET.  STILL, THERE IS NO DOUBT THAT THE SEEDS OF
ANTICOMPETITIVE CONDUCT ARE PRESENT, SINCE "(A)S (AN OLIGOPOLISTIC)
CONDITION DEVELOPS, THE GREATER IS THE LIKELIHOOD THAT PARALLEL
POLICIES OF MUTUAL ADVANTAGE, NOT COMPETITION, WILL EMERGE."  UNITED
STATES V. ALUMINUM CO. OF AMERICA, 377 U.S. 271, 280(1964).  ONE
COMMENTATOR'S DESCRIPTION OF THE NATIONAL BEER MARKET APTLY
CHARACTERIZES THE SITUATION IN NEW ENGLAND:  "THE INCREASING
CONCENTRATION . . . AND THE UNLIKELY ENTRANCE OF NEW RIVALS POSES A
THREAT TO THE FUTURE LEVEL OF COMPETITION IN THIS INDUSTRY.  THUS FAR,
THERE IS NO EVIDENCE OF COLLUSION IN THE BEER INDUSTRY.  BUT AS THE
INDUSTRY BECOMES POPULATED BY FEWER AND FEWER COMPANIES, THE
POSSIBILITY AND LIKELIHOOD WILL BE ENHANCED OF THEIR ENGAGING IN TACIT
OR DIRECT COLLUSION-- GIVEN THE INELASTIC NATURE OF DEMAND-- TO
ESTABLISH A JOINT PROFIT MAXIMIZING PRICE AND OUTPUT.  SIMILARLY, THE
CHANCES WILL BECOME SLIMMER THAT INDIVIDUAL FIRMS IN THE INDUSTRY WILL
FOLLOW A TRULY INDEPENDENT PRICE AND PRODUCTION STRATEGY, VIGOROUSLY
STRIVING TO TAKE SALES AWAY FROM RIVAL BREWERS.  WITH ONLY A FEW
SELLERS WILL COME THE INCREASING AWARENESS THAT PARALLEL BUSINESS
BEHAVIOR MIGHT BE FEASIBLE."  ELZINGA, THE BEER INDUSTRY, IN W. ADAMS,
THE STRUCTURE OF AMERICAN INDUSTRY 189, 213(4TH ED. 1971). 

        C. NARRAGANSETT-- THE ACQUIRED FIRM 

NARRAGANSETT IS A REGIONAL BREWERY WITH ONLY MINUSCULE SALES OUTSIDE
OF NEW ENGLAND.  WITHIN THE NEW ENGLAND MARKET, HOWEVER, THE FIRM HAS
BEEN HIGHLY SUCCESSFUL.  ALTHOUGH ONLY TWENTY-FIRST IN NATIONAL SALES
AND ACCOUNTING FOR ONLY 1.4% OF THE BEER SALES IN THE UNITED STATES,
NARRAGANSETT WAS THE LARGEST SELLER OF BEER IN NEW ENGLAND FOR THE FIVE
YEARS PRECEDING ITS ACQUISITION.  IN RECENT YEARS, THE FIRM HAS
EXPANDED STEADILY UNTIL, IN 1964, THE YEAR BEFORE ACQUISITION, IT SOLD
1.275 MILLION BARRELS, WHICH WAS ABOUT 20% OF THE NEW ENGLAND MARKET. 
NET PROFITS HAD INCREASED FROM $417,284 IN 1960 TO A RECORD LEVEL OF
$713,083 IN 1964. 

NOTWITHSTANDING THIS GROWTH, NARRAGANSETT FELT ITSELF UNDER SOME
PRESSURE FROM THE NATIONAL BREWERS.  /6/  THE CORPORATION WAS CLOSELY
HELD BY THE HAFFENREFFER FAMILY, AND THE STOCKHOLDERS APPARENTLY
CONCLUDED THAT IT WAS IN THEIR INTEREST TO DIVERSIFY THEIR PERSONAL
HOLDINGS BY SELLING NARRAGANSETT. 

        D. FALSTAFF-- THE ACQUIRING FIRM 

LIKE NARRAGANSETT, FALSTAFF HAS BEEN HIGHLY SUCCESSFUL IN RECENT
YEARS.  BEGINNING WITH A 100,000-BARREL PLANT IN ST. LOUIS SHORTLY
AFTER THE REPEAL OF PROHIBITION, THE FIRM HAS STEADILY GROWN.  BY 1964,
IT WAS THE NATION'S FOURTH LARGEST PRODUCER, MARKETING 5.8 MILLION
BARRELS, OR 5.9% OF THE TOTAL NATIONAL PRODUCTION. 

THROUGHOUT ITS HISTORY, FALSTAFF HAS FOLLOWED A PATTERN OF ACQUIRING
WEAK BREWERIES AND EXPANDING THEM SO AS TO EXTEND ITS INFLUENCE TO NEW
MARKETS.  ALTHOUGH STILL A REGIONAL BREWER, BY 1965 THE COMPANY HAD
EXPANDED ITS NETWORK OF PLANTS AND DISTRIBUTORSHIPS OVER AN AREA FAR
LARGER THAN THAT IN WHICH NARRAGANSETT COMPETED.  IN THAT YEAR,
FALSTAFF OPERATED EIGHT PLANTS AND SOLD ITS PRODUCT IN 32 STATES IN THE
WEST, MIDWEST, AND SOUTH.  SIXTEEN OF THESE STATES WERE ADDED IN THE
PERIOD AFTER 1950.  HOWEVER, AS OF 1965, FALSTAFF SOLD VIRTUALLY NO
BEER IN ANY OF THE NORTHEASTERN STATES, INCLUDING THE SIX COMPOSING THE
NEW ENGLAND AREA.  FALSTAFF MARKETED ITS PRODUCT BOTH THROUGH COMPANY
OWNED BRANCHES AND THROUGH SOME 600 INDEPENDENT DISTRIBUTORSHIPS.  /7/ 

IN THE YEARS IMMEDIATELY PRIOR TO ITS ACQUISITION OF NARRAGANSETT,
FALSTAFF'S STEADY PATTERN OF GROWTH HAD CONTINUED.  BETWEEN 1955 AND
1964, ITS SALES INCREASED FROM $77 MILLION TO $139.5 MILLION AND ITS
NET PROFITS GREW FROM $4.3 MILLION TO $7 MILLION.  IN THE YEAR BEFORE
ACQUISITION, THE COMPANY ANNOUNCED A 10-YEAR EXPANSION PROGRAM IN WHICH
IT WAS PREPARED TO INVEST $35 MILLION. 

YET, DESPITE THIS ENCOURAGING TREND, FALSTAFF, LIKE NARRAGANSETT,
WAS TO SOME EXTENT HANDICAPPED BY THE COMPETITIVE ADVANTAGES-- IN
PARTICULAR, NATIONAL ADVERTISING-- ENJOYED BY NATIONAL DISTRIBUTORS. 
FOR YEARS, THE COMPANY HAD PUBLICLY EXPRESSED THE DESIRE TO BECOME A
NATIONAL BREWER, AND THE LOGICAL REGION FOR MARKET EXTENSION WAS THE
NORTHEAST.  NEW ENGLAND SEEMED A PARTICULARLY APPROPRIATE AREA TO
INITIATE EXPANSION.  AS INDICATED ABOVE, SEVEN OF THE 10 LARGEST
MANUFACTURERS ALREADY SOLD BEER IN NEW ENGLAND, AND FALSTAFF WAS THE
LARGEST OF THE THREE REMAINING OUTSIDE THE MARKET.  THE NEW ENGLAND
MARKET WAS EXPANDING AT A HEALTHY RATE, AND IT APPEARED TO BE A FERTILE
AREA FOR GROWTH. 

IN 1958, FALSTAFF COMMISSIONED A STUDY FROM ARTHUR D. LITTLE, INC.,
TO DETERMINE THE FEASIBILITY OF FUTURE EXPANSION.  THE LITTLE REPORT,
TWO YEARS IN THE MAKING, CONCLUDED THAT FALSTAFF SHOULD ENTER THE
NORTHEASTERN MARKET SOMETIME WITHIN THE NEXT FIVE YEARS.  BUT ALTHOUGH
IT WAS CLEAR THAT FALSTAFF SHOULD MOVE INTO THE NORTHEAST MARKET, THE
METHOD OF ENTRY WAS LESS OBVIOUS.  AFTER A CAREFUL REVIEW OF COST
ESTIMATES AND THE RATIO OF EARNINGS TO NET WORTH, THE LITTLE REPORT
RECOMMENDED DE NOVO ENTRY THROUGH THE CONSTRUCTION OF A NEW PLANT TO
SERVE THE NORTHEAST.  THE REPORT CONCLUDED THAT "(THERE APPEARS TO BE
AMPLE REASON . . . FOR BUILDING RATHER THAN BUYING . . . (AND) THAT
MAJOR NEW MARKET ENTRANCES NEED NOT BE PREDICATED ON THE AVAILABILITY
OF A BREWERY FALSTAFF COULD PURCHASE." 

DESPITE THIS ANALYSIS, FALSTAFF'S OWN MANAGEMENT PERSONNEL
APPARENTLY CONCLUDED THAT THE PROFIT RETURN ON A DE NOVO ENTRY WOULD BE
INORDINATELY LOW.  /8/  FALSTAFF ARGUED AT TRIAL THAT IT NEEDED A
STRONG, PRE-EXISTING DISTRIBUTION SYSTEM TO MAKE A PROFITABLE ENTRY. 
BUT CF. N. 7, SUPRA.  AN INDEPENDENT ECONOMIST, DR. IRA HOROWITZ,
TESTIFIED ON BEHALF OF FALSTAFF THAT DE NOVO ENTRY WOULD RESULT IN A
6.7% RETURN WHICH HE CHARACTERIZED AS "A VERY, VERY POOR INVESTMENT
INDEED."  HOWEVER, IT SHOULD BE NOTED THAT THE 6.7% FIGURE FAILED TO
ACCOUNT FOR THE INCREMENT IN FALSTAFF'S PROFIT MARGIN WHICH WOULD
RESULT FROM ITS NEWLY GAINED STATUS AS A NATIONAL BREWER WITH MODERN
PLANTS TO SERVE THE EASTERN PART OF THE NATION-- THE VERY INCREMENT
WHICH PROVIDED THE PRIMARY MOTIVATION FOR EXPANSION IN THE FIRST
PLACE.  WHILE DR. HOROWITZ APPARENTLY RECOGNIZED THAT SUCH AN INCREMENT
MIGHT MATERIALIZE, HE STATED THAT HE WAS UNABLE TO ESTIMATE ITS SIZE. 
/9/  MOREOVER, EVEN THE 6.7% RETURN RATE COMPARES FAVORABLY WITH
FALSTAFF'S ACTUAL RATE OF RETURN ON ITS NARRAGANSETT PURCHASE, WHICH
WAS A MERE 3.7%. 

IN ANY EVENT, WHATEVER THE ABSTRACT MERITS OF THIS DISPUTE, IT IS
CLEAR THAT FALSTAFF'S MANAGEMENT PERSONNEL DETERMINED THAT ENTRY BY
ACQUISITION OFFERED THE PREFERABLE AVENUE FOR EXPANSION.  BEGINNING IN
1962, THE COMPANY HELD DISCUSSIONS WITH LIEBMANN, P. BALLANTINE & SONS,
/10/  PIEL BROTHERS, AND DAWSONS, ALL OF WHICH DID A SIGNIFICANT
PERCENTAGE OF THEIR BUSINESS IN THE NEW ENGLAND MARKET.  ALL OF THESE
POSSIBILITIES WERE EVENTUALLY REJECTED, AND IN 1965, FALSTAFF FINALLY
SETTLED ON NARRAGANSETT AS THE MOST PROMISING AVAILABLE BREWERY. 

        II 

WITH THIS FACTUAL BACKGROUND, IT BECOMES POSSIBLE TO ARTICULATE THE
LEGAL STANDARDS WHICH SHOULD GOVERN THE RESOLUTION OF THIS CASE. 

        A. THE PURPOSE OF SEC. 7 

AS IS CLEAR FROM ITS FACE, SEC. 7 WAS DESIGNED TO DEAL WITH THE
ANTICOMPETITIVE EFFECTS OF EXCESSIVE INDUSTRIAL CONCENTRATION CAUSED BY
THE CORPORATE MARRIAGE OF TWO COMPETITORS.  "IT IS THE BASIC PREMISE OF
(SEC. 7) THAT COMPETITION WILL BE MOST VITAL 'WHEN THERE ARE MANY
SELLERS, NONE OF WHICH HAS ANY SIGNIFICANT MARKET SHARE.'"  UNITED
STATES V. ALUMINUM CO. OF AMERICA, 377 U.S.,AT 280. 

BUT SEC. 7 DOES MORE THAN PROHIBIT MERGERS WITH IMMEDIATE
ANTICOMPETITIVE EFFECTS.  THE ACT BY ITS TERMS PROHIBITS ACQUISITIONS
WHICH "MAY . . . SUBSTANTIALLY . . . LESSEN COMPETITION, OR . . . TEND
TO CREATE A MONOPOLY."  THE USE OF THE SUBJUNCTIVE INDICATES THAT
CONGRESS WAS CONCERNED WITH THE POTENTIAL EFFECTS OF MERGERS EVEN
THOUGH, AT THE TIME THEY OCCUR, THEY MAY CAUSE NO PRESENT
ANTICOMPETITIVE CONSEQUENCES.  SEE, E.G., FTC V. PROCTER & GAMBLE CO.,
386 U.S. 568, 577(1967).  TO BE SURE, REMOTE POSSIBILITIES ARE NOT
SUFFICIENT TO SATISFY THE TEST SET FORTH IN SEC. 7.  DESPITE
SUBSTANTIAL CONCERN WITH HALTING A TREND TOWARD CONCENTRATION IN ITS
INCIPIENCY, CONGRESS DID NOT INTEND TO PROHIBIT ALL EXPANSION AND
GROWTH THROUGH ACQUISITION AND MERGER.  THE PREDICTIVE JUDGMENT OFTEN
REQUIRED UNDER SEC. 7 INVOLVES A DECISION BASED UPON A CAREFUL SCRUTINY
AND A REASONABLE ASSESSMENT OF THE FUTURE CONSEQUENCES OF A MERGER
WITHOUT UNJUSTIFIABLE, SPECULATIVE INTERFERENCE WITH TRADITIONAL MARKET
FREEDOMS.  AS WE STATED IN BROWN SHOE CO. V. UNITED STATES, 370 U.S.
294, 323(1962):  "CONGRESS USED THE WORDS 'MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION' TO INDICATE THAT ITS CONCERN WAS WITH
PROBABILITIES, NOR CERTAINTIES.  STATUTES EXISTED FOR DEALING WITH
CLEAR-CUT MENACES TO COMPETITION; NO STATUTE WAS SOUGHT FOR DEALING
WITH EPHEMERAL POSSIBILITIES.  MERGERS WITH A PROBABLE ANTICOMPETITIVE
EFFECT WERE TO BE PROSCRIBED BY THIS ACT."  SEE ALSO UNITED STATES V.
PABST BREWING CO., 384 U.S.,AT 552; UNITED STATES V. PENN-OLIN CHEMICAL
CO., 378 U.S. 158, 171(1964). 

THE LEGISLATIVE HISTORY OF SEC. 7 MAKES PLAIN THAT THIS WAS THE
INTENT OF CONGRESS.  BEFORE 1950, SEC. 7 PROHIBITED ONLY THOSE MERGERS
WHICH LESSENED COMPETITION "BETWEEN THE CORPORATION WHOSE STOCK IS SO
ACQUIRED AND THE CORPORATION MAKING THE ACQUISITION."  /11/  THE CELLER
KEFAUVER AMENDMENT, ADDED IN 1950, DELETED THESE WORDS AND PROVIDED
INSTEAD THAT ALL MERGERS WHICH SUBSTANTIALLY LESSENED COMPETITION "IN
ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY"  WERE TO BE
OUTLAWED.  SEE 64 STAT. 1126.  THUS, WHEREAS BEFORE 1950, SEC. 7
PROSCRIBED ONLY THOSE MERGERS WHICH ELIMINATED PRESENT, ACTUAL
COMPETITION BETWEEN THE MERGING FIRMS, THE CELLER-KEFAUVER AMENDMENT
REACHED CASES WHERE FUTURE OR POTENTIAL COMPETITION IN THE ENTIRE
RELEVANT MARKET MIGHT BE ADVERSELY AFFECTED BY THE MERGER.  /12/
"SECTION 7 OF THE CLAYTON ACT WAS INTENDED TO ARREST THE
ANTICOMPETITIVE EFFECTS OF MARKET POWER IN THEIR INCIPIENCY.  THE CORE
QUESTION IS WHETHER A MERGER MAY SUBSTANTIALLY LESSEN COMPETITION, AND
NECESSARILY REQUIRES A PREDICTION OF THE MERGER'S IMPACT ON
COMPETITION, PRESENT AND FUTURE . . . THE SECTION CAN DEAL ONLY WITH
PROBABILITIES, NOT WITH CERTAINTIES . . . AND THERE IS CERTAINLY NO
REQUIREMENT THAT THE ANTICOMPETITIVE POWER MANIFEST ITSELF IN
ANTICOMPETITIVE ACTION BEFORE SEC. 7 CAN BE CALLED INTO PLAY.  IF THE
ENFORCEMENT OF SEC. 7 TURNED ON THE EXISTENCE OF ACTUAL ANTICOMPETITIVE
PRACTICES, THE CONGRESSIONAL POLICY OF THWARTING SUCH PRACTICES IN
THEIR INCIPIENCY WOULD BE FRUSTRATED."  FTC V. PROCTER & GAMBLE CO.,
386 U.S.,AT 577. 

        B. MODES OF POTENTIAL COMPETITION 

SINCE 1950, WE HAVE REPEATEDLY APPLIED SEC. 7 TO CASES WHERE THE
MERGING FIRMS COMPETED IN THE SAME LINE OF COMMERCE, AND WE HAVE BEEN
WILLING TO DEFINE THE LINE OF COMMERCE LIBERALLY SO AS TO REACH
ANTICOMPETITIVE PRACTICES IN THEIR "INCIPIENCY."  SEE, E.G., UNITED
STATES V. PHILLIPSBURG NATIONAL BANK, 399 U.S. 350(1970); UNITED STATES
V. PABST BREWING CO., 384 U.S. 546(1966); UNITED STATES V. ALUMINUM CO.
OF AMERICA, 377 U.S. 271(1964); UNITED STATES V. PHILADELPHIA NATIONAL
BANK, 374 U.S. 321(1963); BROWN SHOE CO. V. UNITED STATES, 370 U.S.
294(1962).  BUT IN KEEPING WITH THE SPIRIT OF THE CELLER-KEFAUVER
AMENDMENT, WE HAVE ALSO APPLIED SEC. 7 TO CASES WHERE THE ACQUIRING
FIRM IS OUTSIDE THE MARKET IN WHICH THE ACQUIRED FIRM COMPETES.  THESE
CASES FALL INTO THREE BROAD CATEGORIES WHICH, WHILE FREQUENTLY
OVERLAPPING, CAN BE DEALT WITH SEPARATELY FOR ANALYTICAL PURPOSES. 

1.  THE DOMINANT ENTRANT.-- IN SOME SITUATIONS, A FIRM OUTSIDE THE
MARKET MAY HAVE OVERPOWERING RESOURCES WHICH, IF BROUGHT TO BEAR WITHIN
THE MARKET, COULD ULTIMATELY HAVE A SUBSTANTIAL ANTICOMPETITIVE
EFFECT.  IF SUCH A FIRM WERE TO ACQUIRE A COMPANY WITHIN THE RELEVANT
MARKET, IT MIGHT DRIVE OTHER MARGINAL COMPANIES OUT OF BUSINESS, THUS
CREATING AN OLIGOPOLY, OR IT MIGHT RAISE ENTRY BARRIERS TO SUCH AN
EXTENT THAT POTENTIAL NEW ENTRANTS WOULD BE DISCOURAGED FROM ENTERING
THE MARKET.  CF. FORD MOTOR CO. V. UNITED STATES, 405 U.S. 562, 567
568(1972); FTC V. PROCTER & GAMBLE CO., 386 U.S.,AT 575.  /13/  SUCH A
DANGER IS ESPECIALLY INTENSE WHEN THE MARKET IS ALREADY HIGHLY
CONCENTRATED OR ENTRY BARRIERS ARE ALREADY UNUSUALLY HIGH BEFORE THE
DOMINANT FIRM ENTERS THE MARKET. 

2.  THE PERCEIVED POTENTIAL ENTRANT.-- EVEN IF THE ENTRY OF A FIRM
DOES NOT UPSET THE COMPETITIVE BALANCE WITHIN THE MARKET, IT MAY BE
THAT THE REMOVAL OF THE FIRM FROM THE FRINGE OF THE MARKET HAS A
PRESENT ANTICOMPETITIVE EFFECT.  IN A CONCENTRATED OLIGOPOLISTIC
MARKET, THE PRESENCE OF A LARGE POTENTIAL COMPETITOR ON THE EDGE OF THE
MARKET, APPARENTLY READY TO ENTER IF ENTRY BARRIERS ARE LOWERED, MAY
DETER ANTICOMPETITIVE CONDUCT WITHIN THE MARKET.  AS WE POINTED OUT IN
UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S.,AT 174: "THE
EXISTENCE OF AN AGGRESSIVE, WELL EQUIPPED AND WELL FINANCED CORPORATION
ENGAGED IN THE SAME OR RELATED LINES OF COMMERCE WAITING ANXIOUSLY TO
ENTER AN OLIGOPOLISTIC MARKET (IS) A SUBSTANTIAL INCENTIVE TO
COMPETITION WHICH CANNOT BE UNDERESTIMATED."  FROM THE PERSPECTIVE OF
THE FIRMS ALREADY IN THE MARKET, THE POSSIBILITY OF ENTRY BY SUCH A
LINGERING FIRM MAY BE AN IMPORTANT CONSIDERATION IN THEIR PRICING AND
MARKETING DECISIONS.  WHEN THE LINGERING FIRM ENTERS THE MARKET BY
ACQUISITION, THE COMPETITIVE INFLUENCE EXERTED BY THE FIRM IS LOST WITH
NO OFFSETTING GAIN THROUGH AN INCREASE IN THE NUMBER OF COMPANIES
SEEKING A SHARE OF THE RELEVANT MARKET.  THE RESULT IS A NET DECREASE
IN COMPETITIVE PRESSURE.  /14/  CF. UNITED STATES V. EL PASO NATURAL
GAS CO., 376 U.S. 651, 659 659-660(1964). 

3.  THE ACTUAL POTENTIAL ENTRANT.-- SINCE THE EFFECT OF A PERCEIVED
POTENTIAL ENTRANT DEPENDS UPON THE PERCEPTION OF THOSE ALREADY IN THE
MARKET, IT MAY IN SOME CASES BE DIFFICULT TO PROVE.  MOREOVER, IN A
MARKET WHICH IS ALREADY COMPETITIVE, THE EXISTENCE OF A PERCEIVED
POTENTIAL ENTRANT WILL HAVE NO PRESENT EFFECT AT ALL.  /15/  THE ENTRY
BY ACQUISITION OF SUCH A FIRM MAY NONETHELESS HAVE AN ANTICOMPETITIVE
EFFECT BY ELIMINATING AN ACTUAL POTENTIAL COMPETITOR.  WHEN A FIRM
ENTERS THE MARKET BY ACQUIRING A STRONG COMPANY WITHIN THE MARKET, IT
MERELY ASSUMES THE POSITION OF THAT COMPANY WITHOUT NECESSARILY
INCREASING COMPETITIVE PRESSURES.  HAD SUCH A FIRM NOT ENTERED BY
ACQUISITION, IT MIGHT AT SOME POINT HAVE ENTERED DE NOVO.  AN ENTRY DE
NOVO WOULD INCREASE COMPETITIVE PRESSURES WITHIN THE MARKET, AND AN
ENTRY BY ACQUISITION ELIMINATES THE POSSIBILITY THAT SUCH AN INCREASE
WILL TAKE PLACE IN THE FUTURE.  THUS, EVEN IF A FIRM AT THE FRINGE OF
THE MARKET EXERTS NO PRESENT PROCOMPETITIVE EFFECT, ITS ENTRY BY
ACQUISITION MAY END FOR ALL TIME THE PROMISE OF MORE EFFECTIVE
COMPETITION AT SOME FUTURE DATE. 

OBVIOUSLY, THE ANTICOMPETITIVE EFFECT OF SUCH AN ACQUISITION DEPENDS
ON THE POSSIBILITY THAT THE FIRM WOULD HAVE ENTERED DE NOVO HAD IT NOT
ENTERED BY ACQUISITION.  IF THE COMPANY WOULD HAVE REMAINED OUTSIDE THE
MARKET BUT FOR THE POSSIBILITY OF ENTRY BY ACQUISITION, AND IF IT IS
EXERTING NO INFLUENCE AS A PERCEIVED POTENTIAL ENTRANT, THEN THERE WILL
NORMALLY BE NO COMPETITIVE LOSS WHEN IT ENTERS BY ACQUISITION.  INDEED,
THERE MAY EVEN BE A COMPETITIVE GAIN TO THE EXTENT THAT IT STRENGTHENS
THE MARKET POSITION OF THE ACQUIRED FIRM.  /16/  THUS, MERE ENTRY BY
ACQUISITION WOULD NOT PRIMA FACIE ESTABLISH A FIRM'S STATUS AS AN
ACTUAL POTENTIAL ENTRANT.  FOR EXAMPLE, A FIRM, ALTHOUGH ABLE TO ENTER
THE MARKET BY ACQUISITION, MIGHT, BECAUSE OF INABILITY TO SHOULDER THE
DE NOVO START-UP COSTS, BE UNABLE TO ENTER DE NOVO.  BUT WHERE A
POWERFUL FIRM IS ENGAGING IN A RELATED LINE OF COMMERCE AT THE FRINGE
OF THE RELEVANT MARKET, WHERE IT HAS A STRONG INCENTIVE TO ENTER THE
MARKET DE NOVO, AND WHERE IT HAS THE FINANCIAL CAPABILITIES TO DO SO,
WE HAVE NOT HESITATED TO ASCRIBE TO IT THE ROLE OF AN ACTUAL POTENTIAL
ENTRANT.  IN SUCH CASES, WE HAVE HELD THAT SEC. 7 PROHIBITS AN ENTRY BY
ACQUISITION SINCE SUCH AN ENTRY ELIMINATES THE POSSIBILITY OF FUTURE
ACTUAL COMPETITION WHICH WOULD OCCUR IF THERE WERE AN ENTRY DE NOVO. 

IN LIGHT OF THE MANY DECISIONS TO THIS EFFECT, THE MAJORITY'S
ASSERTION THAT "THE COURT HAS NOT SQUARELY FACED (THIS) QUESTION" IS
INEXPLICABLE.  IN UNITED STATES V. CONTINENTAL CAN CO., 378 U.S.
441(1964), FOR EXAMPLE, THE DEFENDANT ARGUED THAT "THE TYPES OF
CONTAINERS PRODUCED BY CONTINENTAL AND HAZEL-ATLAS (THE ACQUIRED FIRM)
AT THE TIME OF THE MERGER WERE FOR THE MOST PART NOT IN COMPETITION
WITH EACH OTHER AND HENCE THE MERGER COULD HAVE NO EFFECT ON
COMPETITION."  ID., AT 462.  BUT MR. JUSTICE WHITE, WRITING FOR THE
COURT, REJECTED THAT ARGUMENT, HOLDING THAT "(IT IS NOT AT ALL SELF
EVIDENT THAT THE LACK OF CURRENT COMPETITION BETWEEN CONTINENTAL AND
HAZEL-ATLAS FOR SOME IMPORTANT END USES OF METAL AND GLASS CONTAINERS
SIGNIFICANTLY DIMINISHED THE ADVERSE EFFECT OF THE MERGER ON
COMPETITION.  CONTINENTAL MIGHT HAVE CONCLUDED THAT IT COULD
EFFECTIVELY INSULATE ITSELF FROM COMPETITION BY ACQUIRING A MAJOR FIRM
NOT PRESENTLY DIRECTING ITS MARKET ACQUISITION EFFORTS TOWARD THE SAME
END USES AS CONTINENTAL, BUT POSSESSING THE POTENTIAL TO DO SO."  ID.,
AT 464.  THE MAJORITY SAYS IT IS "ONLY ARBITRARY" TO READ THIS LANGUAGE
AS NOT REFERRING TO HAZEL-ATLAS' PRESENT PROCOMPETITIVE INFLUENCE ON
THE MARKET.  BUT THE CONTINENTAL CAN COURT SAID NOT A WORD ABOUT
PRESENT PROCOMPETITIVE EFFECTS, AND, INDEED, MADE CLEAR THAT IT WAS
RELYING ON THE FUTURE ANTICOMPETITIVE IMPACT OF THE MERGER.  THE COURT
HELD, FOR EXAMPLE, THAT "THE FACT THAT CONTINENTAL AND HAZEL-ATLAS WERE
NOT SUBSTANTIAL COMPETITORS OF EACH OTHER FOR CERTAIN END USES AT THE
TIME OF THE MERGER MAY ACTUALLY ENHANCE THE LONG-RUN TENDENCY OF THE
MERGER TO LESSEN COMPETITION."  ID., AT 465.  SEE ALSO FORD MOTOR CO.
V. UNITED STATES, 405 U.S. 562(1972); FTC V. PROCTER & GAMBLE CO., 386
U.S. 568(1967); UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S.
158(1964); UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S.
651(1964). 

        C. PROBLEMS OF PROOF-- THE ROLE OF SUBJECTIVE EVIDENCE 

ALTHOUGH SEC. 7 DEALS WITH PROBABILITIES, NOT EPHEMERAL
POSSIBILITIES, ALL FORMS OF POTENTIAL COMPETITION INVOLVE FUTURE EVENTS
AND ALL OF THEM ARE, THEREFORE, TO SOME EXTENT SPECULATIVE AND
UNCERTAIN.  WHETHER FUTURE COMPETITION WILL BE REDUCED BY A PRESENT
MERGER IS CLEARLY "NOT THE KIND OF QUESTION WHICH IS SUSCEPTIBLE OF A
READY AND PRECISE ANSWER IN MOST CASES.  IT REQUIRES NOT MERELY AN
APPRAISAL OF THE IMMEDIATE IMPACT OF THE MERGER UPON COMPETITION, BUT A
PREDICTION OF ITS IMPACT UPON COMPETITIVE CONDITIONS IN THE FUTURE;
THIS IS WHAT IS MEANT WHEN IT IS SAID THAT THE AMENDED SEC. 7 WAS
INTENDED TO ARREST ANTICOMPETITIVE TENDENCIES IN THEIR 'INCIPIENCY.'" 
UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.,AT 362. 

THE UNAVOIDABLE PROBLEMS OF PROOF ARE COMPOUNDED IN SOME CASES BY THE
RELEVANCE OF SUBJECTIVE STATEMENTS OF FUTURE INTENT BY THE MANAGERS OF
THE ACQUIRING FIRM.  ALTHOUGH NOT SUSCEPTIBLE OF PRECISE ANALYSIS, THE
OBJECTIVE CONDITIONS OF THE MARKET MAY AT LEAST BE MEASURED AND
QUANTIFIED.  BUT THERE EXISTS NO VERY GOOD WAY OF EVALUATING A
SUBJECTIVE STATEMENT BY THE MANAGER OF A FIRM THAT THE FIRM DOES OR
DOES NOT INTEND TO ENTER A GIVEN MARKET AT SOME FUTURE DATE. 

FORTUNATELY, IN TWO OF THE THREE FORMS OF POTENTIAL COMPETITION,
SUCH SUBJECTIVE EVIDENCE HAS NO ROLE TO PLAY.  CLEARLY, IN THE CASE OF
A DOMINANT ENTRANT, THE ONLY ISSUE IS WHETHER THE FIRM'S ENTRY BY
ACQUISITION WILL SO UPSET OBJECTIVE MARKET FORCES AS TO SUBSTANTIALLY
REDUCE FUTURE COMPETITION.  SINCE THE FIRM WILL HAVE ALREADY TAKEN
STEPS TO ENTER THE MARKET BY THE TIME A SEC. 7 ACTION IS FILED, ITS
STATEMENTS OF SUBJECTIVE INTENT ARE IRRELEVANT. 

SIMILARLY, WHEN THE GOVERNMENT PROCEEDS ON THE THEORY THAT THE
ACQUIRING FIRM IS A PERCEIVED POTENTIAL ENTRANT, TESTIMONY AS TO THE
SUBJECTIVE INTENT OF THE ACQUIRING FIRM IS NOT PROBATIVE.  THE
PERCEIVED POTENTIAL ENTRANT EXERTS A PROCOMPETITIVE EFFECT BECAUSE
COMPANIES IN THE MARKET PERCEIVE IT AS A POTENTIAL ENTRANT.  THE
COMPANIES IN THE MARKET MAY ENTERTAIN THIS PERCEPTION WHETHER THE
PERCEIVED POTENTIAL ENTRANT IS IN FACT A POTENTIAL ENTRANT OR NOT. 
THUS, A FIRM ON THE FRINGE OF THE MARKET MAY EXERT A PROCOMPETITIVE
EFFECT EVEN IF IT HAS NO INTENTION OF ENTERING THE MARKET, SO LONG AS
IT SEEMS TO THOSE WITHIN THE MARKET THAT IT MAY HAVE SUCH AN
INTENTION.  /17/  IT FOLLOWS THAT SUBJECTIVE TESTIMONY BY THE MANAGERS
OF THE PERCEIVED POTENTIAL ENTRANT IS IRRELEVANT.  /18/ 

HOWEVER, SUBJECTIVE STATEMENTS OF MANAGEMENT ARE PROBATIVE IN CASES
WHERE THE ACQUIRING FIRM IS ALLEGED TO BE AN ACTUAL POTENTIAL ENTRANT. 
FIRST, MANAGEMENT'S STATEMENTS THAT IT DOES NOT INTEND TO MAKE A DE
NOVO MARKET ENTRY, TOGETHER WITH ITS ASSOCIATED REASONS, PROVIDE AN
EXPERT JUDGMENT ON THE CONCLUSIONS TO BE DRAWN BY THE TRIER OF FACT
FROM THE OBJECTIVE MARKET FORCES.  JUST AS THE GOVERNMENT MAY INTRODUCE
EXPERT TESTIMONY TO INFORM AND GUIDE THE TRIAL COURT WITH RESPECT TO
THE APPROPRIATE BUSINESS JUDGMENTS TO BE DERIVED FROM THE OBJECTIVE
DATA, SO TOO THE DEFENDANT IS ENTITLED TO PRESENT THE EVALUATION OF ITS
OWN "EXPERTS" WHO MAY INCLUDE ITS MANAGEMENT PERSONNEL.  ALTHOUGH SUCH
EVIDENCE FROM MANAGEMENT IS OBVIOUSLY BIASED AND SELF-SERVING, IT IS
NONETHELESS ADMISSIBLE TO PROVE THAT THE OBJECTIVE MARKET PRESSURES DO
NOT FAVOR A DE NOVO ENTRY. 

MORE SIGNIFICANTLY, MANAGEMENT'S STATEMENT OF SUBJECTIVE INTENT, IF
BELIEVED, AFFECTS THE FIRM'S STATUS AS AN ACTUAL POTENTIAL ENTRANT.  AS
INDICATED ABOVE, THE ACTUAL POTENTIAL ENTRANT'S ENTRY BY ACQUISITION IS
ANTICOMPETITIVE ONLY IF IT ELIMINATES SOME FUTURE POSSIBILITY THAT IT
MIGHT HAVE ENTERED DE NOVO.  AN UNEQUIVOCAL STATEMENT BY MANAGEMENT
THAT IT HAS ABSOLUTELY NO INTENTION OF ENTERING THE MARKET DE NOVO AT
ANY TIME IN THE FUTURE IS RELEVANT TO THE ISSUE OF WHETHER THE
POSSIBILITY OF SUCH AN ENTRY EXISTS.  AFTER ALL, THE CHARACTER OF
MANAGEMENT IS ITSELF ESSENTIALLY AN OBJECTIVE FACTOR IN DETERMINING
WHETHER THE ACQUIRING FIRM IS AN ACTUAL POTENTIAL ENTRANT. 

BUT ALTHOUGH SUBJECTIVE EVIDENCE IS PROBATIVE AND ADMISSIBLE IN
ACTUAL POTENTIAL-ENTRY CASES, ITS UTILITY IS SHARPLY LIMITED.  WE HAVE
CERTAINLY NEVER SUGGESTED THAT SUBJECTIVE EVIDENCE OF LIKELY FUTURE
ENTRY IS REQUIRED TO MAKE OUT A SEC. 7 CASE.  ON THE CONTRARY, IN
UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S.,AT 175, WHERE THE
OBJECTIVE EVIDENCE OF POTENTIAL ENTRY WAS STRONG, WE SAID, "UNLESS WE
ARE GOING TO REQUIRE SUBJECTIVE EVIDENCE, THIS ARRAY OF PROBABILITY
CERTAINLY REACHES THE PRIMA FACIE STAGE.  AS WE HAVE INDICATED, TO
REQUIRE MORE WOULD BE TO READ THE STATUTORY REQUIREMENT OF REASONABLE
PROBABILITY INTO A REQUIREMENT OF CERTAINTY.  THIS WE WILL NOT DO." 

NOR DO OUR PRIOR CASES HOLD THAT THE DISTRICT COURTS ARE BOUND BY
SUBJECTIVE STATEMENTS OF COMPANY OFFICIALS THAT THEY HAVE NO INTENTION
OF MAKING A DE NOVO ENTRY.  WE HAVE EMPHASIZED THAT THE DECISION
WHETHER THE ACQUIRING FIRM IS AN ACTUAL POTENTIAL ENTRANT IS, IN THE
LAST ANALYSIS, AN INDEPENDENT ONE TO BE MADE BY THE TRIAL COURT ON THE
BASIS OF ALL RELEVANT EVIDENCE PROPERLY WEIGHTED ACCORDING TO ITS
CREDIBILITY.  THUS, IN FTC V. PROCTER & GAMBLE CO., FOR EXAMPLE,
MANAGERS OF PROCTER & GAMBLE TESTIFIED THAT THEY HAD NO INTENTION OF
MAKING A DE NOVO ENTRY, AND THE COURT OF APPEALS THOUGHT ITSELF BOUND
BY THAT TESTIMONY.  SEE 386 U.S.,AT 580, AND ID., AT 585 (HARLAN, J.,
CONCURRING).  WE REVERSED, HOLDING THAT "(THE EVIDENCE . . . CLEARLY
SHOWS THAT PROCTER WAS THE MOST LIKELY ENTRANT."  ID., AT 580.     AS
THESE CASES INDICATE, SUBJECTIVE EVIDENCE HAS, AT BEST, ONLY A MARGINAL
ROLE TO PLAY IN ACTUAL POTENTIAL-ENTRY CASES.  IN ORDER TO MAKE OUT A
PRIMA FACIE CASE, THE GOVERNMENT NEED ONLY SHOW THAT OBJECTIVELY
MEASURABLE MARKET DATA FAVOR A DE NOVO ENTRY AND THAT THE ALLEGED
POTENTIAL ENTRANT HAS THE ECONOMIC CAPABILITY TO MAKE SUCH AN ENTRY. 
TO BE SURE, THE DEFENDANT MAY THEN INTRODUCE SUBJECTIVE TESTIMONY IN
REBUTTAL, AND IN THE RARE CASE WHERE THE OBJECTIVE EVIDENCE IS EVENLY
DIVIDED, IT IS CONCEIVABLE THAT EXTREMELY CREDIBLE SUBJECTIVE EVIDENCE
MIGHT TIP THE BALANCE.  BUT WHERE OBJECTIVELY MEASURABLE MARKET FORCES
MAKE CLEAR THAT IT IS IN A FIRM'S ECONOMIC SELF-INTEREST TO MAKE A DE
NOVO ENTRY AND THAT THE FIRM HAS THE ECONOMIC CAPABILITY TO DO SO, I
WOULD HOLD THAT IT IS ERROR FOR THE DISTRICT COURT TO CONCLUDE THAT THE
FIRM IS NOT AN ACTUAL POTENTIAL ENTRANT ON THE BASIS OF TESTIMONY BY
COMPANY OFFICIALS AS TO THE FIRM'S FUTURE INTENT.  /19/ 

THE REASONS FOR SO LIMITING THE ROLE OF SUBJECTIVE EVIDENCE ARE NOT
DIFFICULT TO DISCERN.  SUCH EVIDENCE SHOULD OBVIOUSLY BE GIVEN NO
WEIGHT IF IT IS NOT CREDIBLE.  BUT IT IS IN THE VERY NATURE OF SUCH
EVIDENCE THAT IN THE USUAL CASE IT IS NOT WORTHY OF CREDIT.  /20/
FIRST, ANY STATEMENT OF FUTURE INTENT WILL BE INHERENTLY SELF-SERVING. 
A DEFENDANT IN A SEC. 7 CASE SUCH AS THIS WISHES TO ENTER THE MARKET BY
ACQUISITION AND ITS MANAGERS KNOW THAT ITS ABILITY TO DO SO DEPENDS
UPON WHETHER IT CAN CONVINCE A COURT THAT IT WOULD NOT HAVE ENTERED DE
NOVO IF ENTRY BY ACQUISITION WERE PREVENTED.  IT IS THUS STRONGLY IN
MANAGEMENT'S INTEREST TO REPRESENT THAT IT HAS NO INTENTION OF ENTERING
DE NOVO-- A REPRESENTATION WHICH IS NOT SUBJECT TO EXTERNAL
VERIFICATION AND WHICH IS SO SPECULATIVE IN NATURE THAT IT COULD
VIRTUALLY NEVER SERVE AS THE PREDICATE FOR A PERJURY CHARGE. 

MOREOVER, IN A CASE WHERE THE OBJECTIVE EVIDENCE STRONGLY FAVORS
ENTRY DE NOVO, A FIRM WHICH ASKS US TO BELIEVE THAT IT DOES NOT INTEND
TO ENTER DE NOVO BY IMPLICATION ASKS US TO BELIEVE THAT ID DOES NOT
INTEND TO ACT IN ITS OWN ECONOMIC SELF-INTEREST.  BUT CORPORATIONS ARE,
AFTER ALL, PROFIT-MAKING INSTITUTIONS, AND, ABSENT SPECIAL
CIRCUMSTANCES, THEY CAN BE EXPECTED TO FOLLOW COURSES OF ACTION MOST
LIKELY TO MAXIMIZE PROFITS.  /21/  THE TRIER OF FACT SHOULD, THEREFORE,
LOOK WITH GREAT SUSPICION UPON A SUGGESTION THAT A COMPANY WITH AN
OPPORTUNITY TO EXPAND ITS MARKET AND THE MEANS TO SEIZE UPON THAT
OPPORTUNITY WILL FOLLOW A DELIBERATE POLICY OF SELF-ABNEGATION IF THE
ROUTE OF EXPANSION FIRST SELECTED IS LEGALLY FORECLOSED TO IT. 

THUS, IN MOST CASES, SUBJECTIVE STATEMENTS CONTRARY TO THE OBJECTIVE
EVIDENCE SIMPLY SHOULD NOT BE BELIEVED.  BUT EVEN IF THE THRESHOLD
CREDIBILITY GAP IS BREACHED, IT STILL DOES NOT FOLLOW THAT SUBJECTIVE
STATEMENTS OF FUTURE INTENT SHOULD OUTWEIGH STRONG OBJECTIVE EVIDENCE
TO THE CONTRARY.  EVEN IF IT IS TRUE THAT MANAGEMENT HAS NO PRESENT
INTENT OF ENTERING THE MARKET DE NOVO, THE POSSIBILITY REMAINS THAT IT
MAY CHANGE ITS MIND AS THE OBJECTIVE FACTORS FAVORING SUCH ENTRY ARE
MORE CLEARLY PERCEIVED.  OF COURSE, IT IS POSSIBLE THAT MANAGEMENT WILL
ADAMANTLY CONTINUE TO CLOSE ITS EYES TO THE COMPANY'S OWN SELF
INTEREST.  BUT IN THAT EVENT, THE CHANCE REMAINS THAT THE STOCKHOLDERS
WILL INSTALL NEW, MORE COMPETENT OFFICERS WHO WILL BETTER SERVE THEIR
INTEREST.  ALL OF THESE POSSIBILITIES ARE ABRUPTLY AND IRREVOCABLY
ABORTED WHEN THE FIRM IS ALLOWED TO ENTER THE MARKET BY ACQUISITION. 
AND WHILE IT IS CONCEIVABLE THAT NONE OF THE POSSIBILITIES WILL
MATERIALIZE IF ENTRY BY ACQUISITION IS PREVENTED, IT IS ABSOLUTELY
CERTAIN THAT THEY WILL NOT MATERIALIZE IF SUCH ENTRY IS PERMITTED.  ALL
THAT IS NECESSARY TO TRIGGER A SEC. 7 VIOLATION IS A FINDING BY THE
TRIAL COURT OF A REASONABLE CHANCE OF FUTURE COMPETITION.  IN MOST
CASES, STRONG OBJECTIVE EVIDENCE WILL BE SUFFICIENT TO CREATE SUCH A
CHANCE DESPITE EVEN CREDIBLE SUBJECTIVE STATEMENTS TO THE CONTRARY. 
/22/ 

TO SUMMARIZE, THEN, I WOULD NOT HOLD THAT SUBJECTIVE EVIDENCE MAY
NEVER BE CONSIDERED IN THE CONTEXT OF AN ACTUAL POTENTIAL-ENTRY CASE. 
SUCH EVIDENCE SHOULD ALWAYS BE ADMISSIBLE AS EXPERT, ALTHOUGH BIASED,
COMMENTARY ON THE NATURE OF THE OBJECTIVE EVIDENCE.  AND IN A RARE
CASE, THE SUBJECTIVE EVIDENCE MAY SERVE AS A COUNTERWEIGHT TO WEAK OR
INCONCLUSIVE OBJECTIVE DATA.  BUT WHEN THE DISTRICT COURT CAN POINT TO
NO COMPELLING REASON WHY THE SUBJECTIVE TESTIMONY SHOULD BE BELIEVED OR
WHEN THE OBJECTIVE EVIDENCE STRONGLY POINTS TO THE FEASIBILITY OF ENTRY
DE NOVO, I WOULD HOLD THAT IT IS ERROR FOR THE COURT TO RELY IN ANY WAY
UPON MANAGEMENT'S SUBJECTIVE STATEMENTS AS TO ITS OWN FUTURE INTENT. 

        III 

AS INDICATED ABOVE, THE GOVERNMENT FAILED TO PRESS THE ARGUMENT THAT
FALSTAFF WAS A DOMINANT OR PERCEIVED POTENTIAL ENTRANT.  SINCE THERE IS
VIRTUALLY NO EVIDENCE IN THE RECORD TO SUPPORT EITHER OF THESE
THEORIES, I CANNOT SAY THAT THE DISTRICT JUDGE ERRED IN REJECTING
THEM.  IT DOES APPEAR, HOWEVER, THAT HE APPLIED AN ERRONEOUS STANDARD
IN EVALUATING THE SUBJECTIVE EVIDENCE RELEVANT TO FALSTAFF'S POSITION
AS AN ACTUAL POTENTIAL ENTRANT AND THAT THIS ERROR INFECTED THE COURT'S
FACTUAL DETERMINATIONS.  I WOULD THEREFORE REMAND THE CAUSE SO THAT A
PROPER FACT-FINDING CAN BE MADE. 

THE RECORD SHOWS THAT THE NEW ENGLAND MARKET IS HIGHLY CONCENTRATED
WITH A FEW LARGE FIRMS GAINING A GREATER AND GREATER SHARE OF THE
MARKET.  ALTHOUGH THIS MARKET STRUCTURE HAS YET TO PRODUCE OVERTLY
ANTICOMPETITIVE BEHAVIOR, THERE IS A REAL DANGER THAT PARALLEL PRICING
AND MARKETING POLICIES WILL SOON EMERGE IF NEW COMPETITORS DO NOT ENTER
THE FIELD. 

THE OBJECTIVE EVIDENCE IN THE RECORD STRONGLY SUGGESTS THAT FALSTAFF
HAD BOTH THE CAPABILITY AND THE INCENTIVE TO ENTER THE NEW ENGLAND
MARKET DE NOVO.  IT IS UNDISPUTED THAT IT WAS IN FALSTAFF'S INTEREST TO
GAIN THE STATUS OF A NATIONAL BREWER IN THE NEAR FUTURE AND THAT NEW
ENGLAND WAS A LOGICAL AREA TO BEING ITS EXPANSION.  INDEED, FALSTAFF'S
OWN ACTIONS IN ENTERING THE NEW ENGLAND MARKET SUPPORT THIS
CONCLUSION.  NOR CAN IT BE DOUBTED THAT FALSTAFF HAD THE ECONOMIC
CAPABILITY TO ENTER NEW ENGLAND.  FALSTAFF IS THE NATION'S FOURTH
LARGEST BREWER AND THE LARGEST STILL OUTSIDE OF NEW ENGLAND.  IT HAS
BEEN CONSISTENTLY PROFITABLE IN RECENT YEARS, HAS AN EXCELLENT CREDIT
RATING, AND HAD, IN 1964, ENOUGH EXCESS CAPITAL TO FINANCE A 10-YEAR,
$35 MILLION EXPANSION PROJECT.  THE LITTLE REPORT CONCLUDED THAT DE
NOVO ENTRY INTO THE NORTHEAST WAS FEASIBLE AND, ALTHOUGH FALSTAFF
ATTACKS THESE FINDINGS, THE TRIER OF FACT MIGHT WELL HAVE ACCEPTED THEM
HAD HE RELIED UPON THE OBJECTIVE EVIDENCE. 

TO BE SURE, FALSTAFF INTRODUCED A GREAT DEAL OF EVIDENCE TENDING TO
SHOW THAT ENTRY DE NOVO WOULD HAVE BEEN LESS PROFITABLE FOR IT THAN
ENTRY BY ACQUISITION.  I HAVE NO DOUBT THAT THIS IS TRUE.  INDEED, IF
IT CAN BE ASSUMED THAT FALSTAFF IS A RATIONAL, PROFIT-MAXIMIZING
CORPORATION, ITS OWN DECISION OFFERS STRONG PROOF THAT ENTRY BY
ACQUISITION WAS THE PREFERABLE ALTERNATIVE.  BUT THE TEST IN SEC. 7
CASES IS NOT WHETHER ANTICOMPETITIVE CONDUCT IS PROFIT MAXIMIZING.  THE
VERY PURPOSE OF SEC. 7 IS TO DIRECT THE PROFIT INCENTIVE INTO CHANNELS
WHICH ARE PROCOMPETITIVE.  THUS, THE PROPER TEST IS WHETHER FALSTAFF
WOULD HAVE ENTERED THE MARKET DE NOVO IF THE PREFERABLE ALTERNATIVE OF
ENTRY BY ACQUISITION HAD BEEN DENIED IT.  THE OBJECTIVE EVIDENCE
STRONGLY SUGGESTS THAT SUCH AN ENTRY WOULD HAVE OCCURRED. 

THE DISTRICT COURT, HOWEVER, CHOSE TO IGNORE THIS OBJECTIVE EVIDENCE
ALMOST TOTALLY.  INSTEAD, THE TRIAL JUDGE SEEMS TO HAVE CONSIDERED
HIMSELF BOUND BY FALSTAFF'S SUBJECTIVE REPRESENTATIONS THAT IT HAD NO
INTENTION OF ENTERING THE MARKET DE NOVO.  AS NOTED ABOVE, EVEN IF
THESE SUBJECTIVE STATEMENTS ARE CREDIBLE, THEY APPEAR TO BE
INSUFFICIENT TO OUTWEIGH THE STRONG OBJECTIVE EVIDENCE TO THE
CONTRARY. 

FINDINGS OF FACT ARE, OF COURSE, FOR THE TRIAL JUDGE IN THE FIRST
INSTANCE, AND EVEN IN ANTITRUST CASES WHERE THE EVIDENCE IS LARGELY
DOCUMENTARY, APPELLATE COURTS SHOULD BE RELUCTANT TO SET THEM ASIDE. 
BUT WHEN THE FACTS ARE FOUND UNDER A STANDARD WHICH IS LEGALLY
DEFICIENT, THE SITUATION IS FUNDAMENTALLY DIFFERENT.  IT IS THE DUTY OF
APPELLATE COURTS TO ESTABLISH THE LEGAL STANDARDS BY WHICH THE FACTS
ARE TO BE JUDGED.  THE FACTS IN THIS CASE WERE JUDGED BY A WRONG
STANDARD, AND THE CAUSE SHOULD THEREFORE BE REMANDED FOR A NEW, ERROR
FREE DETERMINATION. 

/1/  THE GOVERNMENT'S COMPLAINT ALLEGED THAT THE MERGER VIOLATED
SEC. 7 BECAUSE "(POTENTIAL COMPETITION IN THE PRODUCTION AND SALE OF
BEER BETWEEN FALSTAFF AND NARRAGANSETT WILL BE ELIMINATED."  WHILE IT
IS TRUE, AS THE MAJORITY ASSERTS, THAT "POTENTIAL COMPETITION MAY
STIMULATE A PRESENT PROCOMPETITIVE INFLUENCE," SEE ANTE, AT 534 N. 13,
THE COMPLAINT NOWHERE ALLEGES THAT SUCH A PROCOMPETITIVE INFLUENCE
OCCURRED IN THIS CASE. 

/2/  SIGNIFICANTLY, THE MAJORITY CITES NO EVIDENCE AT ALL FROM THE
RECORD INDICATING THAT FIRMS WITHIN THE NEW ENGLAND MARKET WERE
DETERRED FROM ANTICOMPETITIVE PRACTICES BY FALSTAFF'S PRESENCE AT THE
MARKET FRINGE.  INDEED, MY BRETHREN CONCEDE THAT "(THE GOVERNMENT DID
NOT PRODUCE DIRECT EVIDENCE OF HOW MEMBERS OF THE NEW ENGLAND MARKET
REACTED TO POTENTIAL COMPETITION FROM FALSTAFF," IBID.  WHILE THE
MAJORITY CONTENDS THAT THERE WAS "CIRCUMSTANTIAL EVIDENCE" RELEVANT TO
DETERMINING WHETHER THERE WAS A LOSS OF PROCOMPETITIVE INFLUENCE, THE
EVIDENCE IT POINTS TO SUGGESTS ONLY THAT FALSTAFF MIGHT HAVE BEEN
PERCEIVED AS A POTENTIAL ENTRANT-- NOT THAT THIS PERCEPTION PRODUCED A
PRESENT PROCOMPETITIVE EFFECT.  IN FACT, THE LITTLE EVIDENCE ON THE
QUESTION WHICH DOES APPEAR IN THE RECORD STRONGLY SUGGESTS THAT
FALSTAFF WAS EXERTING NO PROCOMPETITIVE INFLUENCE.  THUS, AN ECONOMIST
TESTIFYING FOR THE DEFENSE STATED THAT, IN HIS EXPERT JUDGMENT,
FALSTAFF'S PRESENCE ON THE FRINGE OF THE MARKET "HAD NO EFFECT" ON THE
PRACTICES OF FIRMS WITHIN THE MARKET (APP. 257).  SIMILARLY, THE
DIRECTOR OF MARKETING FOR NARRAGANSETT TESTIFIED THAT THOSE WITHIN THE
MARKET DID NOT VIEW FALSTAFF AS A THREAT AND THAT IT NEVER OCCURRED TO
THEM THAT FALSTAFF WOULD ATTEMPT A DE NOVO ENTRY (APP. 376). 

TO BE SURE, THIS TESTIMONY MAY WELL HAVE BEEN BIASED AND MIGHT
PROPERLY HAVE BEEN DISCOUNTED BY THE TRIER OF FACT.  BUT IT IS HARDER
TO DISMISS THE DOCUMENTARY EVIDENCE SHOWING CONTINUED VIGOROUS
COMPETITION AFTER FALSTAFF'S ENTRY BY ACQUISITION.  IF FALSTAFF WAS
EXERTING A SUBSTANTIAL PROCOMPETITIVE INFLUENCE BY THREATENING ENTRY,
IT WOULD SEEM TO FOLLOW THAT ANTICOMPETITIVE PRACTICES SHOULD HAVE
EMERGED WHEN THIS THREAT WAS REMOVED.  THE MAJORITY NOWHERE ACCOUNTS
FOR THE CONTINUING ABSENCE OF SUCH PRACTICES. 

/3/ IN ITS BRIEF BEFORE THIS COURT, THE GOVERNMENT CHARACTERIZES ITS
CAUSE OF ACTION AS FOLLOWS:

"THE THEORY OF THE SUIT WAS THAT POTENTIAL COMPETITION IN THE NEW
ENGLAND BEER MARKET MAY BE SUBSTANTIALLY LESSENED BY THE ACQUISITION." 
BRIEF FOR UNITED STATES 2-3. 

/4/  CF. UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S. 651,
663(1964) (OPINION OF HARLAN, J.): 

"BOTH AS A PRACTITIONER AND AS A JUDGE I HAVE MORE THAN ONCE FELT
THAT A CLOSELY CONTESTED GOVERNMENT ANTITRUST CASE, DECIDED BELOW IN
FAVOR OF THE DEFENDANT, HAS FOUNDERED IN THIS COURT FOR LACK OF AN
ILLUMINATING OPINION BY THE DISTRICT COURT.  DISTRICT COURTS SHOULD NOT
FORGET THAT SUCH CASES, THE TRIALS OF WHICH USUALLY RESULT IN LONG AND
COMPLEX FACTUAL RECORDS, COME HERE WITHOUT THE BENEFIT OF ANY SIFTING
BY THE COURTS OF APPEALS.  THE ABSENCE OF AN OPINION BY THE DISTRICT
COURT HAS BEEN A HANDICAP IN THIS INSTANCE." 

/5/  SEE FED. RULE CIV. PROC. 52(A).  CF. UNITED STATES V. EL PASO
NATURAL GAS CO., SUPRA, AT 656-657. 

/6/  THIS PRESSURE CONTINUED DURING THE POST-ACQUISITION PERIOD. 
FROM 1964 TO 1969, NARRAGANSETT'S SHARE OF THE MARKET SLIPPED FROM
21.5% TO 15.5%, WHILE ANHEUSER-BUSCH AND SCHLITZ, TWO LARGE NATIONAL
FIRMS, INCREASED THEIR COMBINED SHARE FROM 16.5% TO 35.8%. 

/7/  AT TRIAL, FALSTAFF ARGUED THAT IT WAS UNLIKELY TO MAKE A DE
NOVO ENTRY INTO THE NEW ENGLAND MARKET SINCE IT HAD LEARNED THROUGH
EXPERIENCE THAT A STRONG, PRE-EXISTING ORGANIZATION OF DISTRIBUTORS WAS
ESSENTIAL TO SUCCESS.  IT IS TRUE THAT FALSTAFF SOLD MOST OF ITS BEER
THROUGH INDEPENDENT DISTRIBUTORS.  HOWEVER, IT SHOULD BE NOTED THAT
BETWEEN 20% AND 25% OF ITS SALES WERE MADE THROUGH COMPANY BRANCHES
WHICH FALSTAFF HAD ESTABLISHED ITSELF.  AS MIGHT BE EXPECTED,
FALSTAFF'S PROFIT MARGIN WAS SIGNIFICANTLY HIGHER IN AREAS WHERE IT
USED ITS OWN DISTRIBUTION FACILITIES.  MOREOVER, FALSTAFF'S ASSERTION
IS BELIED BY ITS OWN PRIOR HISTORY.  AS NOTED ABOVE, FOR YEARS FALSTAFF
HAD SUCCESSFULLY EXPANDED BY PURCHASING FAILING BREWERIES WITH WEAK
DISTRIBUTION FACILITIES AND TURNING THEM INTO EFFECTIVE COMPETITORS. 

/8/  AT TRIAL, FALSTAFF ALSO ARGUED THAT THE OTHER LITTLE
RECOMMENDATIONS WHICH FALSTAFF DID FOLLOW LED TO DISASTROUS
CONSEQUENCES, THAT LITTLE'S ESTIMATE OF CONSTRUCTION COSTS WERE
UNREALISTIC, AND THAT THE LITTLE REPORT WAS PREMISED ON FALSTAFF'S
PENETRATION OF THE MID-ATLANTIC AS WELL AS THE NEW ENGLAND MARKET. 

/9/  DR. HOROWITZ' ESTIMATES WERE BASED ON THE ASSUMPTION THAT
FALSTAFF'S PROFIT MARGIN WOULD BE $1.16 PER BARREL, WHICH WAS THE
MARGIN CURRENTLY ENJOYED BY THE COMPANY.  HOWEVER, ANHEUSER-BUSCH AND
PABST, TWO OF THE LARGER NATIONAL BREWERIES, BOTH EARNED MORE THAN
$2.50 PER BARREL IN THEIR MODERN PLANTS. 

/10/  ULTIMATELY, ON MARCH 6, 1972, FALSTAFF ANNOUNCED PLANS TO
ACQUIRE BALLANTINE'S TRADEMARKS AND TRADENAME. 

/11/  THE ORIGINAL SEC. 7 PROVIDED IN RELEVANT PART:  "(NO
CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR INDIRECTLY,
THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE THE EFFECT OF SUCH
ACQUISITION MAY BE TO SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE
CORPORATION WHOSE STOCK IS SO ACQUIRED AND THE CORPORATION MAKING THE
ACQUISITION, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY,
OR TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE."  38 STAT. 731. 
/12/  THE LEGISLATIVE HISTORY OF THE 1950 AMENDMENT WAS TRACED IN
DETAIL IN OUR OPINION IN BROWN SHOE CO. V. UNITED STATES, 370 U.S.
294(1962).  "THE DELETION OF THE 'ACQUIRING-ACQUIRED' TEST WAS THE
DIRECT RESULT OF AN AMENDMENT OFFERED BY THE FEDERAL TRADE COMMISSION. 
IN PRESENTING THE PROPOSED CHANGE, COMMISSION COUNSEL KELLEY MADE THE
FOLLOWING POINTS:  THIS COURT'S DECISIONS HAD IMPLIED THAT THE EFFECT
ON COMPETITION BETWEEN THE PARTIES TO THE MERGER WAS NOT THE ONLY TEST
OF THE ILLEGALITY OF A STOCK MERGER; THE COURT HAD APPLIED SHERMAN ACT
TESTS TO CLAYTON ACT CASES AND THUS JUDGED THE EFFECT OF A MERGER ON
THE INDUSTRY AS A WHOLE; THIS INCORPORATION OF SHERMAN ACT TESTS, WITH
THE ACCOMPANYING 'RULE OF REASON,' WAS INADEQUATE FOR REACHING SOME
MERGERS WHICH THE COMMISSION FELT WERE NOT IN THE PUBLIC INTEREST; AND
THE NEW AMENDMENT PROPOSED A MIDDLE GROUND BETWEEN WHAT APPEARED TO BE
AN OVERLY RESTRICTIVE TEST INSOFAR AS MERGERS BETWEEN COMPETITORS WERE
CONCERNED, AND WHAT APPEARED TO THE COMMISSION TO BE AN OVERLY LENIENT
TEST INSOFAR AS ALL OTHER MERGERS WERE CONCERNED.  CONGRESSMAN KEFAUVER
SUPPORTED THIS AMENDMENT AND THE COMMISSION'S PROPOSAL WAS THEN
INCORPORATED INTO THE BILL WHICH WAS EVENTUALLY ADOPTED BY THE
CONGRESS.  SEE HEARINGS (BEFORE SUBCOMMITTEE NO. 2 OF THE HOUSE
COMMITTEE ON THE JUDICIARY) ON H.R. 515, (80TH CONG., 1ST SESS.) AT 23,
117-119, 238-240, 259; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
JUDICIARY COMMITTEE ON H.R. 2734, 81ST CONG., 1ST SESS. . . . 147." 
370 U.S.,AT 317 N. 30. 

/13/  TO BE SURE, IN TERMS OF ANTICOMPETITIVE EFFECTS, THE DOMINANT
FIRM'S ACQUISITION OF ANOTHER FIRM WITHIN THE MARKET MIGHT BE
FUNCTIONALLY INDISTINGUISHABLE FROM A DE NOVO ENTRY, WHICH SEC. 7 DOES
NOT FORBID.  BUT "SURELY ONE PREMISE OF AN ANTIMERGER STATUTE SUCH AS
SEC. 7 IS THAT CORPORATE GROWTH BY INTERNAL EXPANSION IS SOCIALLY
PREFERABLE TO GROWTH BY ACQUISITION."  UNITED STATES V. PHILADELPHIA
NATIONAL BANK, 374 U.S. 321, 370(1963).  MOREOVER, ENTRY BY ACQUISITION
HAS THE ADDED EVIL OF ELIMINATING ONE FIRM IN THE MARKET AND THUS
INCREASING THE BURDEN ON THE REMAINING FIRMS WHICH MUST COMPETE WITH
THE DOMINANT ENTERING FIRM. 

/14/  THUS, WHEREAS THE PRACTICAL DIFFERENCE BETWEEN ENTRY BY
ACQUISITION AND ENTRY DE NOVO MAY BE MARGINAL IN THE CASE OF A DOMINANT
ENTRANT, SEE N. 13, SUPRA, IT IS CRUCIAL IN THE CASE OF A PERCEIVED
POTENTIAL ENTRANT.  IF THE PERCEIVED POTENTIAL ENTRANT ENTERS DE NOVO,
ITS DETERRENT EFFECT ON ANTICOMPETITIVE PRACTICES REMAINS AND THE TOTAL
NUMBER OF FIRMS COMPETING FOR MARKET SHARES INCREASES.  BUT WHEN SUCH A
FIRM ENTERS BY ACQUISITION, IT MERELY STEPS INTO THE SHOES OF THE
ACQUIRED FIRM.  THE RESULT IS NO NET INCREASE IN THE ACTUAL COMPETITION
FOR MARKET SHARES AND THE REMOVAL OF A THREAT EXERTING PROCOMPETITIVE
INFLUENCE FROM OUTSIDE THE MARKET. 

/15/  STILL, EVEN IF THE MARKET IS PRESENTLY COMPETITIVE, IT IS
POSSIBLE THAT IT MIGHT GROW LESS COMPETITIVE IN THE FUTURE.  FOR
EXAMPLE, A MARKET MIGHT BE SO CONCENTRATED THAT EVEN THOUGH IT IS
PRESENTLY COMPETITIVE, THERE IS A SERIOUS RISK THAT PARALLEL PRICING
POLICIES MIGHT EMERGE SOMETIME IN THE NEAR FUTURE.  IN SUCH A
SITUATION, AN EFFECTIVE COMPETITOR LINGERING ON THE FRINGE OF THE
MARKET-- WHAT MIGHT BE CALLED A POTENTIAL PERCEIVED POTENTIAL ENTRANT--
COULD EXERT A DETERRENT FORCE WHEN ANTICOMPETITIVE CONDUCT IS ABOUT TO
EMERGE.  AS ITS VERY NAME SUGGESTS, HOWEVER, SUCH A FIRM WOULD BE STILL
A FURTHER STEP REMOVED FROM THE EXERTION OF ACTUAL, PRESENT COMPETITIVE
INFLUENCE, AND THE PROBLEMS OF PROOF ARE COMPOUNDED ACCORDINGLY--
PARTICULARLY IN LIGHT OF THE SHOWING OF REASONABLE PROBABILITY REQUIRED
UNDER SEC. 7. 

/16/  HOWEVER, IF THE ACQUIRED FIRM IS STRENGTHENED TO SUCH AN
EXTENT THAT IT UPSETS THE MARKET BALANCE AND DRIVES ITS COMPETITORS OUT
OF THE MARKET, THE ACQUIRING FIRM TAKES ON THE CHARACTERISTICS OF A
DOMINANT ENTRANT, AND THE MERGER MAY THEREFORE VIOLATE SEC. 7 UNDER
THAT THEORY.  SEE SUPRA, AT 558-560 AND N. 14. 

/17/  THUS, IN UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S.
158(1964), FOR EXAMPLE, MANAGEMENT TESTIFIED THAT THE COMPANY HAD NO
INTENTION OF MAKING A DE NOVO, NONACQUISITIVE ENTRY, ID., AT 166, AND
IN PART ON THE BASIS OF THIS TESTIMONY, THE DISTRICT COURT FOUND THAT
SUCH AN ENTRY WAS UNLIKELY, ID., AT 173.  BUT WE REJECTED THIS FINDING
AS IRRELEVANT TO THE COMPANY'S STATUS AS A PERCEIVED POTENTIAL ENTRANT
SINCE "THE CORPORATION . . . MIGHT HAVE REMAINED AT THE EDGE OF THE
MARKET, CONTINUALLY THREATENING TO ENTER," IBID., AND SO AFFECTED
COMPETITION WITHIN THE MARKET. 

/18/  PUBLIC STATEMENTS BY MANAGEMENT THAT THE FIRM DOES NOT INTEND
TO ENTER THE MARKET MAY BE RELEVANT.  TO THE EXTENT THAT SUCH
STATEMENTS ARE BELIEVED BY THE FIRMS WITHIN THE MARKET, THEY AFFECT
THEIR PERCEPTION OF THE FIRM OUTSIDE THE MARKET AS A POTENTIAL
ENTRANT.  BUT IN THAT EVENT, THE STATEMENTS OF INTENT ARE ADMISSIBLE,
NOT TO SHOW SUBJECTIVE STATE OF MIND, BUT, RATHER, AS ONE OF THE
OBJECTIVE FACTORS CONTROLLING THE PERCEPTION OF THE FIRMS WITHIN THE
MARKET. 

/19/  IT MIGHT BE ARGUED THAT ECONOMIC DECISIONS ARE "INHERENTLY
SUBJECTIVE" AND THAT ANY ATTEMPT TO DERIVE OBJECTIVE CONCLUSIONS FROM
ECONOMIC DATA IS FUTILE.  IF THIS OBSERVATION MEANS THAT DIFFERENT
PEOPLE REACH DIFFERENT CONCLUSIONS FROM THE SAME OBJECTIVE DATA, THEN
THE POINT MUST, OF COURSE, BE CONCEDED.  SIMILARLY, IF THE POINT IS
THAT ECONOMIC PREDICTIONS ARE DIFFICULT AND FRAUGHT WITH UNCERTAINTY,
IT IS WELL TAKEN.  AS WE RECOGNIZED IN UNITED STATES V. PHILADELPHIA
NATIONAL BANK, SUCH QUESTIONS ARE "NOT . . . SUSCEPTIBLE OF A READY AND
PRECISE ANSWER IN MOST CASES."  374 U.S.,AT 362.  BUT ALTHOUGH THE
FACTUAL CONTROVERSIES IN SEC. 7 CASES MAY PROVE DIFFICULT TO RESOLVE,
THE STATUTORY SCHEME CLEARLY DEMANDS THEIR RESOLUTION.  AS THIS COURT
HELD YEARS AGO, IN RESPONSE TO A SIMILAR ARGUMENT:  "SO FAR AS THE
ARGUMENTS PROCEED UPON THE CONCEPTION THAT IN VIEW OF THE GENERALITY OF
THE STATUTE IT IS NOT SUSCEPTIBLE OF BEING ENFORCED BY THE COURTS
BECAUSE IT CANNOT BE CARRIED OUT WITHOUT A JUDICIAL EXERTION OF
LEGISLATIVE POWER, THEY ARE CLEARLY UNSOUND.  THE STATUTE CERTAINLY
GENERICALLY ENUMERATES THE CHARACTER OF ACTS WHICH IT PROHIBITS AND THE
WRONG WHICH IT WAS INTENDED TO PREVENT.  THE PROPOSITIONS THEREFORE BUT
INSIST THAT . . . IT NEVER CAN BE LEFT TO THE JUDICIARY TO DECIDE
WHETHER IN A GIVEN CASE PARTICULAR ACTS COME WITHIN A GENERIC STATUTORY
PROVISION.  BUT TO REDUCE THE PROPOSITIONS, HOWEVER, TO THIS THEIR
FINAL MEANING MAKES IT CLEAR THAT IN SUBSTANCE THEY DENY THE EXISTENCE
OF ESSENTIAL LEGISLATIVE AUTHORITY AND CHALLENGE THE RIGHT OF THE
JUDICIARY TO PERFORM DUTIES WHICH THAT DEPARTMENT OF THE GOVERNMENT HAS
EXERTED FROM THE BEGINNING."  STANDARD OIL CO. V. UNITED STATES, 221
U.S. 1, 69-70(1911).  SECTION 7 BY ITS TERMS REQUIRES THE TRIAL JUDGE
TO MAKE A PREDICTION, AND IT IS ENTIRELY POSSIBLE THAT OTHERS MAY
REASONABLY DISAGREE WITH THE CONCLUSION HE REACHES.  BUT A HOLDING THAT
THE FACT OF SUCH DISAGREEMENT REQUIRES THE JUDGE TO DELEGATE HIS
DECISION-MAKING AUTHORITY TO ONE OF THE PARTIES WOULD STRIKE AT THE
HEART OF THE VERY NOTION OF JUDICIAL CONFLICT RESOLUTION.  WHILE IT MAY
BE TRUE THAT DIFFERENT PEOPLE SEE ECONOMIC FACTS IN DIFFERENT LIGHT,
SEC. 7 GIVES FEDERAL JUDGES AND JURIES THE RESPONSIBILITY TO REACH
THEIR CONCLUSIONS AS TO THE ECONOMIC FACTS.  AND "(IF JUSTICE REQUIRES
THE FACT TO BE ASCERTAINED, THE DIFFICULTY OF DOING SO IS NO GROUND FOR
REFUSING TO TRY."  O. HOLMES, THE COMMON LAW 48. 

/20/  THE GOVERNMENT DIRECTS OUR ATTENTION TO A CASE WHICH
DRAMATICALLY ILLUSTRATES THE UNRELIABLE CHARACTER OF SUCH EVIDENCE. 
WHEN THE GOVERNMENT CHALLENGED BETHLEHEM STEEL'S ACQUISITION OF
YOUNGSTOWN STEEL IN A SEC. 7 PROCEEDING, BETHLEHEM VIGOROUSLY ARGUED
THAT IT WOULD NEVER ENTER THE MIDWESTERN STEEL MARKET DE NOVO.  BUT
WHEN THE MERGER WAS DISALLOWED, SEE UNITED STATES V. BETHLEHEM STEEL
CORP., 168 F.SUPP.  576 (SDNY 1958), BETHLEHEM NONETHELESS ELECTED TO
MAKE A DE NOVO ENTRY.  SEE MOODY'S INDUSTRIAL MANUAL 2861(1966). 

/21/  IT IS POSSIBLE TO IMAGINE A SMALL, CLOSELY HELD CORPORATION
WHICH IS NOT SOLELY CONCERNED WITH PROFIT MAXIMIZATION AND WHICH
THROUGH EXCESSIVE CONSERVATISM OR INERTIA WOULD NOT SEIZE UPON AN
OPPORTUNITY TO EXPAND ITS PROFITS.  BUT SUCH A CORPORATION IS
EXCEEDINGLY UNLIKELY TO BECOME THE DEFENDANT IN A SEC. 7 LAWSUIT. 
ITS MARKET BY ENTERING HITHERTO FOREIGN TERRITORY BY ACQUISITION.  A
FIRM CAUGHT IN THE ACT OF EXPANDING BY ACQUISITION CAN HARDLY BE HEARD
TO SAY THAT IT IS UNINTERESTED IN EXPANSION. 

IT IS ALSO POSSIBLE THAT A FIRM MIGHT MAKE A GOOD-FAITH ERROR AS TO
THE NATURE OF OBJECTIVE MARKET FORCES.  THUS, EVEN THOUGH THE OBJECTIVE
FACTORS FAVOR ENTRY DE NOVO, THE FIRM'S MANAGERS MIGHT THINK THAT THE
SAME FACTORS ARE UNFAVORABLE.  BUT AS THE OBJECTIVE EVIDENCE FAVORING
ENTRY BECOMES STRONGER, THE POSSIBILITY OF GOOD-FAITH ERROR
CORRESPONDINGLY DECREASES, SO THAT IF THE OBJECTIVE FORCES FAVORING
ENTRY ARE CLEAR, THE CHANCE OF GOOD-FAITH ERROR BECOMES DE MINIMIS. 
MOREOVER, THE MERE FACT THAT A FIRM IS PRESENTLY MAKING A GOOD-FAITH
ERROR DOES NOT DEMONSTRATE THAT IT WILL CONTINUE TO DO SO IN THE
FUTURE.  SEE SUPRA, THIS PAGE. 

/22/  THE DISTINCTION BETWEEN SUBJECTIVE STATEMENTS OF INTENT AND
OBJECTIVELY VERIFIABLE FACTS IS NOT UNKNOWN IN OTHER AREAS OF THE LAW. 
SEE, E.G., WRIGHT V. COUNCIL OF CITY OF EMPORIA, 407 U.S. 451, 460
462(1972); NLRB V. ERIE RESISTOR CORP., 373 U.S. 221, 227-228(1963). 
INDEED, PERHAPS THE OLDEST RULE OF EVIDENCE-- THAT A MAN IS PRESUMED TO
INTEND THE NATURAL AND PROBABLE CONSEQUENCES OF HIS ACTS-- IS BASED ON
THE COMMON LAW'S PREFERENCE FOR OBJECTIVELY MEASURABLE DATA OVER
SUBJECTIVE STATEMENTS OF OPINION AND INTENT.  NOR HAVE WE HESITATED TO
APPLY THIS PRINCIPLE TO ANTITRUST LAW.  SEE, E.G., UTAH PIE CO. V.
CONTINENTAL BAKING CO., 386 U.S. 685, 702-703(1967); UNITED STATES V.
GYPSUM CO., 333 U.S. 364, 394(1948). 

MR. JUSTICE REHNQUIST, WITH WHOM MR. JUSTICE STEWART CONCURS,
DISSENTING. 

CIVIL LITIGATION IN OUR COMMON-LAW SYSTEM IS CONDUCTED WITHIN THE
FRAMEWORK OF THE TIME-HONORED PRINCIPLE THAT THE PLAINTIFF MUST
INTRODUCE SUFFICIENT EVIDENCE TO CONVINCE THE TRIER OF FACT THAT HIS
CLAIM FOR RELIEF IS FACTUALLY MERITORIOUS.  HOWEVER LARGE THE SOCIETAL
INTEREST IN THE AREA OF ANTITRUST LAW, SO LONG AS CONGRESS ASSIGNS THE
VINDICATION OF THOSE INTERESTS TO CIVIL LITIGATION IN THE FEDERAL
COURTS, ANTITRUST LITIGATION IS NO EXCEPTION TO THAT RULE.  THE
PLAINTIFF, WHETHER PUBLIC OR PRIVATE, MUST PROVE TO THE SATISFACTION OF
THE JUDGE OR JURY THAT THE DEFENDANT VIOLATED THE ANTITRUST LAWS. 
UNITED STATES V. YELLOW CAB CO., 338 U.S. 338(1949).  IT IS THE
EXCLUSIVE RESPONSIBILITY OF THE TRIER OF FACT TO WEIGH, AS HE SEES FIT,
ALL ADMISSIBLE EVIDENCE IN RESOLVING DISPUTED ISSUES OF FACT, IBID.,
AND HIS FINDINGS OF FACT CANNOT BE OVERTURNED ON APPEAL UNLESS "THE
REVIEWING COURT ON THE ENTIRE EVIDENCE IS LEFT WITH THE DEFINITE AND
FIRM CONVICTION THAT A MISTAKE HAS BEEN COMMITTED."  UNITED STATES V.
GYPSUM CO., 333 U.S. 364, 395(1948).  CF. FTC V. PROCTER & GAMBLE CO.,
386 U.S. 568(1967).  THE COURT TODAY SIMPLY DISREGARDS THESE
PRINCIPLES. 

THE COURT REMANDS THIS CASE TO THE DISTRICT COURT TO CONSIDER
"WHETHER FALSTAFF WAS A POTENTIAL COMPETITOR IN THE SENSE THAT IT WAS
SO POSITIONED ON THE EDGE OF THE MARKET THAT ITS EXERTED BENEFICIAL
INFLUENCE ON COMPETITIVE CONDITIONS IN THAT MARKET."  ANTE, AT 532
533.  THE ANTITRUST THEORY UNDERLYING THE REMAND IS THAT THE
COMPETITORS IN THE RELATIVE GEOGRAPHIC MARKET, AWARE OF FALSTAFF'S
PRESENCE ON THE PERIPHERY, WOULD NOT EXERCISE THEIR OSTENSIBLE MARKET
POWER TO RAISE PRICES BECAUSE OF THE POSSIBILITY THAT FALSTAFF,
SUFFICIENTLY TEMPTED BY THE HIGH PRICES IN THAT MARKET, WOULD ENTER.  A
GOVERNMENT SUIT CHALLENGING A MERGER OR ACQUISITION CAN, OF COURSE, BE
PREMISED ON THIS THEORY, AND, IF SUFFICIENT EVIDENCE TO CONVINCE THE
TRIER OF FACT IS INTRODUCED, THE DETERMINATION THAT THE MERGER OR
ACQUISITION VIOLATED SEC. 7 WOULD NOT BE REVERSED ON APPEAL. 

AS MY BROTHER MARSHALL CONVINCINGLY DEMONSTRATES, HOWEVER, IN THIS
CASE THE GOVERNMENT NEITHER PROCEEDED ON THE THEORY ADVANCED BY THE
COURT NOR INTRODUCED ANY EVIDENCE THAT WOULD SUPPORT THAT THEORY.  THE
THE THEORY THAT THE GOVERNMENT DID ADVANCE, AND UPON WHICH IT OFFERED
ITS EVIDENCE, IS CONCISELY SUMMARIZED IN THE GOVERNMENT'S STATEMENT IN
OPPOSITION TO FALSTAFF'S MOTION TO DISMISS. 

"IN OUR OPENING STATEMENT WE ATTEMPTED TO SHOW THAT THE GOVERNMENT
WOULD PROVE-- AND I BELIEVE WE HAVE-- THAT FALSTAFF, THE FOURTH LARGEST
BREWING CORPORATION IN THE NATION, HAD A CONTINUOUS INTENSIVE INTEREST
IN ENTERING NEW ENGLAND; THAT IT CARRIED ON NEGOTIATIONS FOR FIVE YEARS
WITH COMPANIES SERVING NEW ENGLAND; THAT ALTERNATIVE METHODS OF ENTRY
OTHER THAN THE ACQUISITION OF THE LARGEST NEW ENGLAND BREWER WERE
AVAILABLE TO FALSTAFF; AND THAT IT WAS IN FACT ONE OF A FEW AND THE
MOST LIKELY ENTRANT INTO THIS MARKET; THAT ITS ENTRANCE INTO THIS
MARKET WAS ESPECIALLY IMPORTANT BECAUSE THE MARKET IS CONCENTRATED;
THAT IS, THE SALES OF BEER IN NEW ENGLAND ARE HIGHLY CONCENTRATED IN
THE HANDS OF THE RELATIVELY FEW NUMBER OF BREWERS. 

     "THE ENTRY BY FALSTAFF BY BUILDING A BREWERY, BY SHIPPING INTO

  THIS MARKET, AND OPENING IT UP, BY THE ACQUISITION OF A COMPANY

  LESS THAN NUMBER 1, THEREBY ELIMINATING ITS MOST SIGNIFICANT

  POTENTIAL COMPETITOR, WERE ALL AVAILABLE TO IT.  BECAUSE OF THE

  CONCENTRATION IN THE MARKET AND BECAUSE OF FALSTAFF'S BEING THE

  MOST POTENTIAL ENTRANT, THE ACQUISITION BY FALSTAFF OF THE

  LEADING FIRM IN THIS MARKET ELIMINATED WHAT WE CONSIDER TO BE ONE

  OF A FEW POTENTIAL COMPETITIVE EFFECTS THAT THIS MARKET COULD

  EXPECT FOR YEARS."  TRANSCRIPT, VOL. 3, P. 7. 

FOR THIS COURT TO REVERSE AND TO REMAND FOR CONSIDERATION OF A
POSSIBLE FACTUAL BASIS FOR A THEORY NEVER ADVANCED BY THE PLAINTIFF IS
A DRASTIC AND UNWARRANTED DEPARTURE FROM THE MOST BASIC PRINCIPLES OF
CIVIL LITIGATION AND APPELLATE REVIEW.  IN THIS CASE, THE GOVERNMENT
ORIGINALLY ADVANCED ONE THEORY, BUT FAILED TO INTRODUCE SUFFICIENT
EVIDENCE TO CONVINCE THE TRIER OF FACT.  THAT FAILURE IS "A NOT
UNCOMMON FORM OF LITIGATION CASUALTY, FROM WHICH THE GOVERNMENT IS NO
MORE IMMUNE THAN OTHERS."  UNITED STATES V. YELLOW CAB CO., 338 U.S.,AT
341.  THE COURT NOW RESUSCITATES THIS "CASUALTY" BY USE OF A THEORY
TRANSPLANT, ALLOWING THE GOVERNMENT A SECOND OPPORTUNITY TO VINDICATE
ITS POSITION BY ARGUING A DIFFERENT THEORY NOT ORIGINALLY PROPOUNDED
BEFORE THE DISTRICT OR ON APPEAL.  I CANNOT JOIN IN THE COURT'S RESCUE
OPERATION FOR THIS "LITIGATION CASUALTY," AN OPERATION WHICH SUCCEEDS
ONLY BY FLAGRANTLY DISREGARDING SOME OF THE AXIOMS UPON WHICH OUR
JUDICIAL SYSTEM IS FOUNDED. 

ALTHOUGH AGREEING WITH MY BROTHER MARSHALL'S CRITICISM OF THE
COURT'S REASON FOR REMANDING THIS CASE, I CANNOT AGREE WITH HIS GROUNDS
FOR REMANDING TO THE DISTRICT COURT FOR RECONSIDERATION.  THAT THEORY
IS BASED, ERRONEOUSLY I BELIEVE, ON THE NOTION THAT THERE IS AN
IDENTIFIABLE DIFFERENCE BETWEEN "OBJECTIVE" AND "SUBJECTIVE" EVIDENCE
IN AN ANTITRUST CASE SUCH AS THIS.  MY BROTHER MARSHALL WOULD HAVE THE
DISTRICT COURT WEIGH "OBJECTIVE" EVIDENCE MORE HEAVILY THAN
"SUBJECTIVE" EVIDENCE.  IN THE FIELD OF ECONOMIC FORECASTING IN
GENERAL, AND IN THE AREA OF POTENTIAL COMPETITION IN PARTICULAR,
HOWEVER, THE DISTINCTION BETWEEN "OBJECTIVE" AND "SUBJECTIVE" EVIDENCE
IS LARGELY ILLUSORY.  IT IS, I BELIEVE, INCORRECT TO STATE THAT A TRIER
OF FACT CAN DETERMINE "OBJECTIVELY" WHAT "IS IN A FIRM'S ECONOMIC SELF
INTEREST."  SUCH A DETERMINATION IS GUESSWORK.  THE TERM "ECONOMIC SELF
INTEREST" IS A CONVENIENT SHORTHAND FOR DESCRIBING THE ECONOMIC
DECISION REACHED BY AN INDIVIDUAL OR FIRM, BUT DOES NOT CONNOTE SOME
SIMPLE, MECHANICAL FORMULA WHICH DETERMINES THE INPUT VALUES, OR THEIR
ASSIGNED WEIGHT, IN THE PROCESS OF ECONOMIC DECISIONMAKING.  THE SIMPLE
FACT IS THAT ANY ECONOMIC DECISION IS LARGELY SUBJECTIVE.  IN THE
INSTANT CASE, FALSTAFF SOUGHT TO PROVE WHY IT WAS NOT IN THE "ECONOMIC
SELF-INTEREST" OF THAT FIRM TO ENTER A NEW GEOGRAPHIC MARKET WITHOUT AN
ESTABLISHED DISTRIBUTION SYSTEM.  ITS EXPLANATION IS AS "OBJECTIVE" AS
ANY OF THE EVIDENCE OFFERED BY THE GOVERNMENT TO SHOW WHY A
HYPOTHETICAL FALSTAFF SHOULD ENTER THE MARKET.  THE QUESTION OF WHO IS
AN "ACTUAL POTENTIAL COMPETITOR" IS ENTIRELY FACTUAL.  IN DECIDING
QUESTIONS OF FACT, IT IS THE PROVINCE OF THE TRIER TO WEIGH ALL OF THE
EVIDENCE; BUT IT IS PECULIARLY HIS PROVINCE TO DETERMINE QUESTIONS OF
CREDIBILITY. 

     "FINDINGS AS TO THE DESIGN, MOTIVE AND INTENT WITH WHICH MEN

  ACT DEPEND PECULIARLY UPON THE CREDIT GIVEN TO WITNESSES BY THOSE

  WHO SEE AND HEAR THEM . . . 

     " . . . THERE IS NO EXCEPTION (TO THE 'CLEARLY ERRONEOUS' RULE

  OF APPELLATE REVIEW) WHICH PERMITS (THE GOVERNMENT), EVEN IN AN

  ANTITRUST CASE, TO COME TO THIS COURT FOR WHAT VIRTUALLY AMOUNTS

  TO A TRIAL DE NOVO ON THE RECORD OF SUCH FINDINGS AS INTENT,

  MOTIVE AND DESIGN."  UNITED STATES V. YELLOW CAB CO., 338 U.S.,

  AT 341-342. 

I WOULD NOT IGNORE OUR PRIOR DECISIONS OR REWRITE THE RULES OF
EVIDENCE SIMPLY TO AFFORD THE GOVERNMENT A SECOND CHANCE, WHICH IS
UNIFORMLY DENIED TO OTHER LITIGANTS, TO CONVINCE THE TRIER OF FACT. 

ASSISTANT ATTORNEY GENERAL KAUPER ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ACTING
ASSISTANT ATTORNEY GENERAL COMEGYS, WILLIAM BRADFORD REYNOLDS, AND
HOWARD E. SHAPIRO. 

MATTHEW W. GORING ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE JAMES S. MCCLELLAN, JEROME M. MCLAUGHLIN, AND STEPHEN J.
CARLOTTI.  V. PROCTER & GAMBLE CO., 386 U.S. 568, 577(1967).  TO BE
SURE, REMOTE
..END :





















UNITED STATES V. FIRST NAT. BANCORPORATION, 410 U.S. 577 


       UNITED STATES V. FIRST NATIONAL BANCORPORATION, INC., ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLORADO

NO. 71-703.  ARGUED OCTOBER 16-17, 1972-- DECIDED FEBRUARY

         28, 1973 


329 F.SUPP.  1003, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

/1/  BRIEFS OF AMICI CURIAE WERE FILED BY ROBERT BLOOM, C. WESTBROOK
MURPHY, AND CHARLES H. MCENERNEY, JR., FOR THE COMPTROLLER OF THE
CURRENCY; BY WILLIAM E. MURANE AND J. WILLIAM VIA, JR., FOR THE FEDERAL
DEPOSIT INSURANCE CORPORATION; BY ANDREW P. MILLER, ATTORNEY GENERAL,
AND HENRY M. MASSIE, JR., ASSISTANT ATTORNEY GENERAL, FOR THE
COMMONWEALTH OF VIRGINIA; AND BY MICHAEL IOVENKO FOR THE NEW YORK STATE
BANKING DEPARTMENT. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL KAUPER, ACTING ASSISTANT ATTORNEY GENERAL
COMEGYS, DONALD I. BAKER, HOWARD E. SHAPIRO, WILLIAM BRADFORD REYNOLDS,
AND LEE A. ROW. 

EUGENE J. METZGER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEFS WERE EDWARD B. CLOSE, JR., CARL W. SCHWARZ, AND MARK W. HAASE. 
/1/
..END :












TILLMAN V. WHEATON-HAVEN RECREATION ASSN., 410 U.S. 431 


       TILLMAN ET AL. V. WHEATON-HAVEN RECREATION ASSN., INC., ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 71-1136.  ARGUED NOVEMBER 15, 1972-- DECIDED FEBRUARY

           27, 1973 


RESPONDENT ASSOCIATION (WHEATON-HAVEN) OPERATES A COMMUNITY SWIMMING
POOL, USE OF WHICH IS LIMITED TO WHITE MEMBERS AND THEIR WHITE GUESTS. 
UNDER WHEATON-HAVEN'S BYLAWS, A PERSON RESIDING WITHIN A GEOGRAPHIC
PREFERENCE AREA, UNLIKE ONE LIVING OUTSIDE THAT AREA, NEEDS NO
ENDORSEMENT FOR MEMBERSHIP FROM A CURRENT MEMBER; RECEIVES PRIORITY (IF
THE MEMBERSHIP IS FULL) OVER ALL BUT THOSE WHO HAVE FIRST OPTIONS; AND
(IF AN OWNER-MEMBER SELLING HIS HOUSE) CAN CONFER A FIRST OPTION FOR
MEMBERSHIP ON HIS VENDEE.  PETITIONERS-- THE PRESSES, A NEGRO COUPLE
WHO BOUGHT A HOME IN THE PREFERENCE AREA FROM A NONMEMBER, AND WERE
DENIED MEMBERSHIP FOR RACIAL REASONS; A WHITE COUPLE, MEMBERS OF
WHEATON-HAVEN, WHOSE NEGRO GUEST WAS REFUSED ADMISSION TO THE POOL FOR
RACIAL REASONS; AND THE GUEST-- BROUGHT SUIT FOR DECLARATORY AND
INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACTS OF 1866, 1870, AND 1964,
42 U.S.C. 1982, 1981, AND 2000A ET SEQ. THE DISTRICT COURT GRANTED
RESPONDENTS' MOTION FOR SUMMARY JUDGMENT.  THE COURT OF APPEALS
AFFIRMED, HOLDING THAT, BECAUSE WHEATON-HAVEN MEMBERSHIP RIGHTS COULD
NOT BE LEASED OR TRANSFERRED, THE CASE WAS DISTINGUISHABLE FROM
SULLIVAN V. LITTLE HUNTING PARK, INC., 396 U.S. 229, MAKING SEC. 1982
UNAVAILABLE TO THE PRESSES, AND AGREEING WITH THE DISTRICT COURT THAT
WHEATON-HAVEN WAS A PRIVATE CLUB WITHIN THE MEANING OF 42 U.S.C.
2000AE), AND THEREFORE IMPLIED AN EXCEPTION TO SEC. 1982.  HELD: 

1.  RESPONDENTS' RACIALLY DISCRIMINATORY MEMBERSHIP POLICY VIOLATES
42 U.S.C. 1982.  THE PREFERENCES FOR MEMBERSHIP IN WHEATON-HAVEN GAVE
VALUABLE PROPERTY RIGHTS TO WHITE RESIDENTS IN THE PREFERENCE AREA THAT
WERE NOT AVAILABLE TO THE PRESSES, AND THIS CASE IS THEREFORE NOT
SIGNIFICANTLY DISTINGUISHABLE FROM SULLIVAN, SUPRA.  PP. 435-437. 

2.  WHEATON-HAVEN IS NOT A PRIVATE CLUB WITHIN THE MEANING OF SEC.
2000AE), SINCE MEMBERSHIP, UNTIL THE ASSOCIATION REACHES ITS FULL
COMPLEMENT, "IS OPEN TO EVERY WHITE PERSON WITHIN THE GEOGRAPHIC AREA,
THERE BEING NO SELECTIVE ELEMENT OTHER THAN RACE," SULLIVAN, SUPRA, AT
236.  WHEATON-HAVEN IS THUS NOT EVEN ARGUABLY EXEMPT BY VIRTUE OF SEC.
2000AE) FROM SEC. 1982 OR SEC. 1981.  PP. 438-440. 

451 F.2D 1211, REVERSED AND REMANDED. 

BLACKMUN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

WHEATON-HAVEN RECREATION ASSOCIATION, INC., A NON-PROFIT MARYLAND
CORPORATION, WAS ORGANIZED IN 1958 FOR THE PURPOSE OF OPERATING A
SWIMMING POOL.  AFTER A MEMBERSHIP DRIVE TO RAISE FUNDS, THE
ASSOCIATION OBTAINED ZONING AS A "COMMUNITY POOL" AND CONSTRUCTED ITS
FACILITY NEAR SILVER SPRING, MARYLAND.  THE ASSOCIATION IS ESSENTIALLY
A SINGLE-FUNCTION RECREATIONAL CLUB, FURNISHING ONLY SWIMMING AND
RELATED AMENITIES.  /1/ 

MEMBERSHIP IS BY FAMILY UNITS, RATHER THAN INDIVIDUALS, AND IS
LIMITED TO 325 FAMILIES.  /2/  THIS LIMIT HAS BEEN REACHED ON AT LEAST
ONE OCCASION.  MEMBERSHIP IS LARGELY KEYED TO THE GEOGRAPHICAL AREA
WITHIN A THREE-QUARTER-MILE RADIUS OF THE POOL.  /3/  A RESIDENT
(WHETHER OR NOT A HOMEOWNER) OF THAT AREA REQUIRES NO RECOMMENDATION
BEFORE HE MAY APPLY FOR MEMBERSHIP; THE RESIDENT RECEIVES A
PREFERENTIAL PLACE ON THE WAITING LIST IF HE APPLIES WHEN THE
MEMBERSHIP IS FULL; AND THE RESIDENT-MEMBER WHO IS A HOMEOWNER AND WHO
SELLS HIS HOME AND TURNS IN HIS MEMBERSHIP, CONFERS ON THE PURCHASER OF
HIS PROPERTY A FIRST OPTION ON THE VACANCY CREATED BY HIS REMOVAL AND
RESIGNATION.  A PERSON RESIDING OUTSIDE THE THREE-QUARTER-MILE AREA MAY
APPLY FOR MEMBERSHIP ONLY UPON THE RECOMMENDATION OF A MEMBER; HE
RECEIVES NO PREFERENTIAL PLACE ON THE WAITING LIST IF THE MEMBERSHIP IS
FULL; AND IF HE BECOMES A MEMBER, HE HAS NO WAY OF CONFERRING AN OPTION
UPON THE PURCHASER OF HIS PROPERTY.  BEYOND-THE-AREA MEMBERS MAY NOT
EXCEED 30% OF THE TOTAL.  MAJORITY APPROVAL OF THOSE PRESENT AT A
MEETING OF THE BOARD OF DIRECTORS OR OF THE GENERAL MEMBERSHIP IS
REQUIRED BEFORE AN APPLICANT IS ADMITTED AS A MEMBER. 

ONLY MEMBERS AND THEIR GUESTS ARE ADMITTED TO THE POOL.  NO ONE ELSE
MAY GAIN ADMISSION MERELY BY PAYMENT OF AN ENTRANCE FEE. 

IN THE SPRING OF 1968 PETITIONER, HARRY C. PRESS, A NEGRO WHO HAD
PURCHASED FROM A NONMEMBER A HOME WITHIN THE GEOGRAPHICAL PREFERENCE
AREA, INQUIRED ABOUT MEMBERSHIP IN WHEATON-HAVEN.  AT THAT TIME THE
ASSOCIATION HAD NO NEGRO MEMBER.  IN NOVEMBER 1968 THE GENERAL
MEMBERSHIP REJECTED A RESOLUTION THAT WOULD HAVE OPENED THE WAY FOR
NEGRO MEMBERS.  DR. PRESS WAS NEVER GIVEN AN APPLICATION FORM, AND
RESPONDENTS CONCEDE THAT HE WAS DISCOURAGED FROM APPLYING BECAUSE OF
HIS RACE. 

IN JULY 1968 PETITIONERS MURRAY AND ROSALIND N. TILLMAN, WHO WERE
HUSBAND AND WIFE AND MEMBERS IN GOOD STANDING, BROUGHT PETITIONER GRACE
ROSNER, A NEGRO, TO THE POOL AS THEIR GUEST.  ALTHOUGH MRS. ROSNER WAS
ADMITTED ON THAT OCCASION, THE GUEST POLICY WAS CHANGED BY THE BOARD OF
DIRECTORS, AT A SPECIAL MEETING THE FOLLOWING DAY, TO LIMIT GUESTS TO
RELATIVES OF MEMBERS.  RESPONDENTS CONCEDE THAT ONE REASON FOR THE
ADOPTION OF THIS POLICY WAS TO PREVENT MEMBERS FROM HAVING NEGROES AS
GUESTS AT THE POOL.  UNDER THIS NEW POLICY MRS. ROSNER THEREAFTER WAS
REFUSED ADMISSION WHEN THE TILLMANS SOUGHT TO HAVE HER AS THEIR GUEST. 
IN THE FALL OF 1968 THE MEMBERSHIP, BY RESOLUTION, REAFFIRMED THE
POLICY. 

IN OCTOBER 1969 PETITIONERS (MR. AND MRS. TILLMAN, DR. AND MRS.
PRESS, AND MRS. ROSNER) INSTITUTED THIS CIVIL ACTION AGAINST THE
ASSOCIATION AND INDIVIDUALS WHO WERE ITS OFFICERS OR DIRECTORS, SEEKING
DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF, PARTICULARLY UNDER THE
CIVIL RIGHTS ACT OF 1866, NOW 42 U.S.C. 1982, /4/  THE CIVIL RIGHTS ACT
OF 1870, NOW 42 U.S.C. 1981, AND TITLE II OF THE CIVIL RIGHTS ACT OF
1964, 78 STAT. 243, 42 U.S.C. 2000A, ET SEQ. THE DISTRICT COURT, IN AN
UNREPORTED OPINION, HELD THAT WHEATON-HAVEN WAS A PRIVATE CLUB AND
EXEMPT FROM THE NONDISCRIMINATION PROVISIONS OF THE STATUTES.  IT
GRANTED SUMMARY JUDGMENT FOR DEFENDANTS.  THE COURT OF APPEALS
AFFIRMED, ONE JUDGE DISSENTING.  451 F.2D 1211(CA4 1971).  IT LATER
DENIED REHEARING EN BANC OVER TWO DISSENTS, ID., AT 1225.  WE GRANTED
CERTIORARI, 406 U.S. 916(1972), TO REVIEW THE CASE IN THE LIGHT OF
SULLIVAN V. LITTLE HUNTING PARK, 396 U.S. 229(1969). 

        I 

IN JONES V. ALFRED H. MAYER CO., 392 U.S. 409(1968), THIS COURT,
AFTER A DETAILED REVIEW OF THE LEGISLATIVE HISTORY OF 42 U.S.C. 1982,
ID., AT 422-437, HELD THAT THE STATUTE REACHES BEYOND STATE ACTION AND
IS NOT CONFINED TO OFFICIALLY SANCTIONED SEGREGATION.  THE COURT
SUBSEQUENTLY APPLIED SEC. 1982 IN SULLIVAN TO PRIVATE RACIAL
DISCRIMINATION PRACTICED BY A NONSTOCK CORPORATION ORGANIZED TO OPERATE
A COMMUNITY PARK AND PLAYGROUND FACILITIES, INCLUDING A SWIMMING POOL,
FOR RESIDENTS OF A DESIGNATED AREA.  THE PRESSES CONTEND THAT THEIR
SEC. 1982 CLAIM IS CONTROLLED BY SULLIVAN.  WE AGREE. 

A. THE COURT OF APPEALS HELD THAT SEC. 1982 WOULD NOT APPLY TO THE
PRESSES BECAUSE MEMBERSHIP RIGHTS IN WHEATON-HAVEN COULD NEITHER BE
LEASED NOR TRANSFERRED INCIDENT TO THE ACQUISITION OF PROPERTY.  451
F.2D,AT 1216-1217.  IN SULLIVAN, THE COURT CONCLUDED THAT THE RIGHT TO
ENJOY A MEMBERSHIP SHARE IN THE CORPORATION, ASSIGNED BY A PROPERTY
OWNER AS PART OF A LEASEHOLD HE WAS GRANTING, CONSTITUTED A RIGHT "TO .
. . LEASE . . . PROPERTY" PROTECTED BY SEC. 1982.  396 U.S.,AT 236
237.  THE COURT OF APPEALS DISTINGUISHED PROPERTY-LINKED MEMBERSHIP
SHARES IN SULLIVAN FROM PROPERTY-LINKED MEMBERSHIP PREFERENCES IN
WHEATON-HAVEN BY EMPHASIZING THE SPECULATIVE NATURE OF THE BENEFITS
AVAILABLE TO RESIDENTS OF THE AREA AROUND WHEATON-HAVEN.  WE CONCLUDE
THAT THE COURT OF APPEALS ERRONEOUSLY CHARACTERIZED THE PROPERTY-LINKED
PREFERENCES CONFERRED BY WHEATON-HAVEN'S BYLAWS. 

UNDER THE BYLAWS, A RESIDENT OF THE AREA WITHIN THREE-QUARTERS OF A
MILE FROM THE POOL RECEIVES THE THREE PREFERENCES NOTED ABOVE:  HE IS
ALLOWED TO APPLY FOR MEMBERSHIP WITHOUT SEEKING A RECOMMENDATION FROM A
CURRENT MEMBER; HE RECEIVES PREFERENCE OVER OTHERS, EXCEPT THOSE WITH
FIRST OPTIONS, WHEN APPLYING FOR A MEMBERSHIP VACANCY; AND, IF HE IS AN
OWNER-MEMBER, HE IS ABLE TO PASS TO HIS SUCCESSOR-IN-TITLE A FIRST
OPTION TO ACQUIRE THE MEMBERSHIP WHEATON-HAVEN PURCHASES FROM HIM.  /5/
IF THE MEMBERSHIP IS FULL, THE PREFERENCE-AREA RESIDENT IS PLACED ON
THE WAITING LIST; OTHER APPLICANTS, HOWEVER, ARE REQUIRED TO REAPPLY
AFTER THOSE ON THE WAITING LIST OBTAIN MEMBERSHIPS. 

THE COURT OF APPEALS CONCLUDED, INCORRECTLY IT LATER APPEARED, THAT
THE MEMBERSHIP HAD NEVER BEEN FULL, /6/  AND THAT THE OPTION
POSSIBILITY, THEREFORE, WAS "FAR TOO TENUOUS A THREAD TO SUPPORT A
CONCLUSION THAT THERE IS A TRANSFER OF MEMBERSHIP INCIDENT TO THE
PURCHASE OF PROPERTY."  451 F.2D AT 1217.  SINCE THE PRESSES HAD NOT
PURCHASED THEIR AREA HOME FROM A MEMBER, THE COURT FOUND NO TRANSACTION
BY WHICH THE PRESSES COULD HAVE ACQUIRED A MEMBERSHIP PREFERENCE.  451
F.2D, AT 1217-1218, N. 14. 

WE DIFFER FROM THE COURT OF APPEALS IN OUR EVALUATION OF THE THREE
RIGHTS OBTAINED.  THE RECORD INDICATES THAT THE MEMBERSHIP WAS FULL IN
THE SPRING OF 1968 BUT DROPPED, PERHAPS NOT UNEXPECTEDLY IN VIEW OF THE
SEASON, IN THE FALL OF THAT YEAR.  WE CANNOT BE CERTAIN, EITHER, THAT
THE MEMBERSHIP WOULD NOT HAVE REMAINED FULL IN THE ABSENCE OF RACIAL
DISCRIMINATION, /7/  OR THAT THE MEMBERSHIP WILL NEVER BE FULL IN THE
FUTURE.  AS WAS OBSERVED IN DISSENT IN THE COURT OF APPEALS: 

     "SEVERAL YEARS FROM NOW IT MAY WELL BE THAT A WHITE NEIGHBOR

  CAN SELL HIS HOME AT A CONSIDERABLY HIGHER PRICE THAN DR. AND

  MRS. PRESS BECAUSE THE WHITE OWNER WILL BE ABLE TO ASSURE HIS

  PURCHASER OF AN OPTION FOR MEMBERSHIP IN WHEATON-HAVEN.  DR. AND

MRS. PRESS, HOWEVER, ARE DENIED THIS ADVANTAGE."  451 F.2D, AT

  1223. 

SIMILARLY, THE AUTOMATIC WAITING-LIST PREFERENCE GIVEN TO RESIDENTS OF
THE FAVORED AREA MAY HAVE AFFECTED THE PRICE PAID BY THE PRESSES WHEN
THEY BOUGHT THEIR HOME.  THUS, THE PURCHASE PRICE TO THEM, LIKE THE
RENTAL PAID BY FREEMAN IN SULLIVAN, MAY WELL REFLECT BENEFITS DEPENDENT
ON RESIDENCY IN THE PREFERENCE AREA.  FOR THEM, HOWEVER, THE RIGHT TO
ACQUIRE A HOME IN THE AREA IS ABRIDGED AND DILUTED. 

WHEN AN ORGANIZATION LINKS MEMBERSHIP BENEFITS TO RESIDENCY IN A
NARROW GEOGRAPHICAL AREA, THAT DECISION INFUSES THOSE BENEFITS INTO THE
BUNDLE OF RIGHTS FOR WHICH AN INDIVIDUAL PAYS WHEN BUYING OR LEASING
WITHIN THE AREA.  THE MANDATE OF 42 U.S.C. 1982 THEN OPERATES TO
GUARANTEE A NONWHITE RESIDENT, WHO PURCHASES, LEASES, OR HOLDS THIS
PROPERTY, THE SAME RIGHTS AS ARE ENJOYED BY A WHITE RESIDENT. 

B. RESPONDENTS CONTEND THAT EVEN IF 42 U.S.C. 1982 APPLIES, WHEATON
HAVEN NEVERTHELESS IS EXEMPT AS A PRIVATE CLUB UNDER SEC.201(E) OF THE
CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000AE), /8/  WITH A CONSEQUENT
IMPLIED NARROWING EFFECT UPON THE RANGE AND APPLICATION OF THE OLDER
SEC. 1982.  IN SULLIVAN WE FOUND IT UNNECESSARY TO CONSIDER LIMITS ON
SEC. 1982 AS APPLIED TO A TRULY PRIVATE ASSOCIATION BECAUSE WE FOUND
"NO PLAN OR PURPOSE OF EXCLUSIVENESS" IN LITTLE HUNTING PARK.  396
U.S.,AT 236.  BUT HERE, AS THERE, MEMBERSHIP "IS OPEN TO EVERY WHITE
PERSON WITHIN THE GEOGRAPHIC AREA, THERE BEING NO SELECTIVE ELEMENT
OTHER THAN RACE."  IBID.  THE ONLY RESTRICTIONS ARE THE STATED MAXIMUM
NUMBER OF MEMBERSHIPS AND, AS IN SULLIVAN, ID., AT 234, THE REQUIREMENT
OF FORMAL BOARD OR MEMBERSHIP APPROVAL.  THE STRUCTURE AND PRACTICES OF
WHEATON-HAVEN THUS ARE INDISTINGUISHABLE FROM THOSE OF LITTLE HUNTING
PARK.  /9/  WE HOLD, AS A CONSEQUENCE, THAT WHEATON-HAVEN IS NOT A
PRIVATE CLUB AND THAT IT IS NOT NECESSARY IN THIS CASE TO CONSIDER THE
ISSUE OF ANY IMPLIED LIMITATION ON THE SWEEP OF SEC. 1982 WHEN ITS
APPLICATION TO A TRULY PRIVATE CLUB, WITHIN THE MEANING OF SEC.
2000AE), IS UNDER CONSIDERATION.  CF. MOOSE LODGE NO. 107 V. IRVIS, 407
U.S. 163(1972); DANIEL V. PAUL, 395 U.S. 298(1969). 

        II 

MRS. ROSNER AND THE TILLMANS, RELYING ON 42 U.S.C. 1981, /10/  1982,
AND 2000A ET SEQ., CONTEND THAT WHEATON-HAVEN COULD NOT ADOPT A
RACIALLY DISCRIMINATORY POLICY TOWARD GUESTS.  THE DISTRICT COURT
GRANTED SUMMARY JUDGMENT FOR THE RESPONDENTS ON THESE CLAIMS ALSO,
HOLDING THAT WHEATON-HAVEN WAS A PRIVATE CLUB AND EXEMPT FROM ALL THREE
STATUTES. 

THE OPERATIVE LANGUAGE OF BOTH SEC. 1981 AND SEC. 1982 IS TRACEABLE
TO THE TO THE ACT OF APRIL 9, 1866, C. 31, SEC. 1, 14 STAT. 27.  HURD
V. HODGE, 334 U.S. 24, 30-31 N. 7(1948).  /11/  IN LIGHT OF THE
HISTORICAL INTERRELATIONSHIP BETWEEN SEC. 1981 AND SEC. 1982, WE SEE NO
REASON TO CONSTRUE THESE SECTIONS DIFFERENTLY WHEN APPLIED, ON THESE
FACTS, TO THE CLAIM OF WHEATON-HAVEN THAT IT IS A PRIVATE CLUB. 
CONSEQUENTLY, OUR DISCUSSION AND REJECTION OF WHEATON-HAVEN'S CLAIM
THAT IT IS EXEMPT FROM SEC. 1982 DISPOSES OF THE ARGUMENT THAT WHEATON
HAVEN IS EXEMPT FROM SEC. 1981.  ON REMAND THE DISTRICT COURT WILL
DEVELOP ANY NECESSARY FACTS CONCERNING THE ADOPTION OF THE GUEST POLICY
AND WILL EVALUATE THE CLAIMS OF THE PARTIES /12/  FREE OF THE
MISCONCEPTION THAT WHEATON-HAVEN IS EXEMPT FROM SECS. 1981, 1982, AND
2000A. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS. 

              IT IS SO ORDERED. 

/0/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL NORMAN, DEPUTY SOLICITOR
GENERAL WALLACE, WILLIAM BRADFORD REYNOLDS, AND JOHN C. HOYLE FOR THE
UNITED STATES; BY ALFRED H. CARTER FOR MONTGOMERY COUNTY, MARYLAND; AND
BY PHILIP J. TIERNEY AND GEORGE D. SOLTER FOR THE MARYLAND COMMISSION
ON HUMAN RELATIONS. 

/1/  CANDY, ICE CREAM, AND SOFT DRINKS HAVE BEEN SOLD ON THE
PREMISES, BUT THESE WERE MERELY INCIDENTALS FOR THE CONVENIENCE OF
SWIMMERS DURING THE SEASON.  ASIDE FROM MEETINGS OF THE BOARD OF
DIRECTORS AND OF THE GENERAL MEMBERSHIP, THE PREMISES APPARENTLY HAVE
BEEN UTILIZED ONLY FOR POOL-RELATED ACTIVITIES. 

/2/  WHEATON-HAVEN PRESENTLY CHARGES AN INITIATION FEE OF $375 AND
ANNUAL DUES RANGING FROM $50 TO $60, DEPENDING ON THE NUMBER OF PERSONS
IN THE FAMILY UNIT. 

/3/  THE ASSOCIATION'S BYLAWS PROVIDE THAT "(MEMBERSHIP SHALL BE
OPEN TO BONA FIDE RESIDENTS (WHETHER OR NOT HOME OWNERS) OF THE AREA
WITHIN A THREE-QUARTER MILE RADIUS OF THE POOL," AND "MAY BE EXTENDED"
TO OTHERS "WHO SHALL HAVE BEEN RECOMMENDED . . . BY A MEMBER." 

/4/  "ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT,
IN EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS THEREOF
TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL
PROPERTY."  42 U.S.C. 1982. 

/5/  UNDER THE WHEATON-HAVEN SYSTEM, A WITHIN-THE-AREA MEMBER
SELLING HIS HOME MAY EITHER RETAIN HIS MEMBERSHIP OR SEEK TO SELL IT
BACK TO THE ASSOCIATION.  IF WHEATON-HAVEN IS WILLING TO PURCHASE, IT
PAYS 80% OF THE INITIAL COST IF THE MEMBERSHIP IS NOT FULL, AND 90% IF
THE MEMBERSHIP IS FULL.  THE PURCHASER OF THE MEMBER'S HOME THEN HAS A
FIRST OPTION ON THE MEMBERSHIP SO RELEASED BY THE SELLER.  THE
PRACTICAL EFFECT OF THIS SYSTEM IS TO PREFER APPLICANTS WHO PURCHASE
FROM MEMBERS OVER OTHER APPLICANTS, PARTICULARLY AT A TIME WHEN THE
MEMBERSHIP IS FULL. 

/6/  IN THE COURT'S PER CURIAM STATEMENT RESPONSIVE TO THE PETITION
FOR REHEARING, IT DESCRIBED ITS EARLIER OBSERVATION THAT THE MEMBERSHIP
LIST HAD NEVER BEEN FULL AS AN "INADVERTENT MISSTATEMENT . . . NOW
CORRECTED TO REFLECT A FULL MEMBERSHIP LIST IN THE SPRING OF 1968." 
451 F.2D 1211, 1225.     /7/  THE RECORD REVEALS THAT A NUMBER OF
MEMBERS WITHDREW WHEN THE PRESENT SUIT WAS FILED.  TR. OF ORAL ARG. IN
DISTRICT COURT 15. 

/8/  "THE PROVISIONS OF THIS SUBCHAPTER SHALL NOT APPLY TO A PRIVATE
CLUB OR OTHER ESTABLISHMENT NOT IN FACT OPEN TO THE PUBLIC, EXCEPT TO
THE EXTENT THAT THE FACILITIES OF SUCH ESTABLISHMENT ARE MADE AVAILABLE
TO THE CUSTOMERS OR PATRONS OF AN ESTABLISHMENT WITHIN THE SCOPE OF
SUBSECTION (B) OF THIS SECTION."  42 U.S.C. 2000AE). 

/9/  APPARENTLY ONE APPLICANT WAS FORMALLY REJECTED DURING THE
PRECEDING 12 YEARS OF LITTLE HUNTING PARK'S OPERATION.  APP. 127 AND
BRIEF FOR PETITIONER 7, SULLIVAN V. LITTLE HUNTING PARK, 396 U.S.
229(1969).  AT WHEATON-HAVEN ONE APPLICANT WAS FORMALLY REJECTED IN THE
PRECEDING 11 YEARS. 

THE COURT OF APPEALS FOUND IT "INFERABLE FROM LITTLE HUNTING PARK'S
ORGANIZATION AND MEMBERSHIP PROVISIONS THAT IT WAS BUILT BY THE SAME
REAL ESTATE DEVELOPERS WHO BUILT THE FOUR SUBDIVISIONS FROM WHICH
MEMBERS WERE DRAWN, AS AN AID TO THE SALE OF HOMES."  451 F.2D, AT 1215
N. 8.  THIS INFERENCE MAY BE ERRONEOUS.  APP. 24-36 AND TR. OF ORAL
ARG. 24, 31-34, SULLIVAN V. LITTLE HUNTING PARK, SUPRA.  IN ANY EVENT,
SULLIVAN DID NOT REST ON ANY RELATIONSHIP BETWEEN THE CLUB AND REAL
ESTATE DEVELOPERS. 

/10/  "ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES
SHALL HAVE THE SAME RIGHT IN EVERY STATE AND TERRITORY TO MAKE AND
ENFORCE CONTRACTS, TO SUE, BE PARTIES, GIVE EVIDENCE, AND TO THE FULL
AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE SECURITY OF
PERSONS AND PROPERTY AS IS ENJOYED BY WHITE C CITIZENS, AND SHALL BE
SUBJECT TO LIKE PUNISHMENT, PAINS, PENALTIES, TAXES, LICENSES, AND
EXACTIONS OF EVERY KIND, AND TO NO OTHER." 

/11/  THE ACT OF APR. 9, 1966, SEC. 1, READ IN PART: 

"THAT ALL PERSONS BORN IN THE UNITED STATES . . . OF EVERY RACE AND
COLOR . . . SHALL HAVE THE SAME RIGHT, IN EVERY STATE AND TERRITORY IN
THE UNITED STATES, TO MAKE AND ENFORCE CONTRACTS, TO SUE, BE PARTIES,
AND GIVE EVIDENCE, TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY
REAL AND PERSONAL PROPERTY, AND TO FULL AND EQUAL BENEFIT OF ALL LAWS
AND PROCEEDINGS FOR THE SECURITY OF PERSON AND PROPERTY, AS IS ENJOYED
BY WHITE CITIZENS, AND SHALL BE SUBJECT TO LIKE PUNISHMENT, PAINS, AND
PENALTIES, AND TO NONE OTHER, ANY LAW, STATUTE, ORDINANCE, REGULATION,
OR CUSTOM, TO THE CONTRARY NOTWITHSTANDING."  14 STAT. 27. 

THE PRESENT CODIFICATION OF SEC. 1981 IS DERIVED FROM REVISED
STATUTES SEC. 1977 (1874), WHICH CODIFIED THE ACT OF MAY 31, 1870, SEC.
16.  16 STAT. 144.  ALTHOUGH THE 1866 ACT RESTED ONLY ON THE THIRTEENTH
AMENDMENT, UNITED STATES V. HARRIS, 106 U.S. 629, 640(1883); CIVIL
RIGHTS CASES, 109 U.S. 3, 22(1883); UNITED STATES V. MORRIS, 125 F.
322, 323(ED ARK. 1903), AND, INDEED, WAS ENACTED BEFORE THE FOURTEENTH
AMENDMENT WAS FORMALLY PROPOSED , UNITED STATES V. PRICE, 383 U.S. 787,
804(1966); HURD V. HODGE, 334 U.S. 24, 32 N. 11(1948); OYAMA V.
CALIFORNIA, 332 U.S. 633, 640(1948); CIVIL RIGHTS CASES, SUPRA, 109
U.S.,AT 22, THE 1870 ACT WAS PASSED PURSUANT TO THE FOURTEENTH, AND
CHANGES IN WORDING MAY HAVE REFLECTED THE LANGUAGE OF THE FOURTEENTH
AMENDMENT.  SEE UNITED STATES V. WONG KIM ARK, 169 U.S. 649, 696
696(1898).  THE 1866 ACT WAS RE-ENACTED IN 1870, AND THE PREDECESSOR OF
THE PRESENT SEC. 1981 WAS TO BE "ENFORCED ACCORDING TO THE PROVISIONS"
OF THE 1866 ACT.  ACT OF MAY 31, 1870, SEC. 18, 16 STAT. 144. 

/12/  RESPONDENT MCINTYRE URGES THAT THE JUDGMENT IN HIS FAVOR
SHOULD BE AFFIRMED AS TO HIM BECAUSE HE WAS MERELY A DIRECTOR WHEATON
HAVEN AND WAS LATER DEFEATED IN HIS BID FOR RE-ELECTION TO ITS BOARD,
AND BECAUSE, IN HIS DEPOSITION, HE STATED THAT HE OPPOSED THE
ASSOCIATION'S EXCLUSIONARY PRACTICES.  NEITHER THE DISTRICT COURT NOR
THE COURT OF APPEALS DISCUSSED MR. MCINTYRE'S INDIVIDUAL LIABILITY, AND
WE FIND IT INAPPROPRIATE TO ATTEMPT RESOLUTION OF THIS ISSUE ON THE
PRESENT RECORD. 

ALLISON W. BROWN, JR., ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEFS WERE RAYMOND W. RUSSELL, SAMUEL A. CHAITOVITZ, MELVIN L.
WULF, AND SANFORD JAY ROSEN. 

HENRY J. NOYES ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS
WHEATON-HAVEN RECREATION ASSN., INC., ET AL. JOHN H. MUDD ARGUED THE
CAUSE FOR RESPONDENT E. RICHARD MCINTYRE.  WITH HIM ON THE BRIEF WAS H.
THOMAS HOWELL.  /0/
..END :












UNITED STATES V. BASYE, 410 U.S. 441 


       UNITED STATES V. BASYE ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

        NO. 71-1022.  ARGUED DECEMBER 11, 1972-- DECIDED FEBRUARY

           27, 1973 


A MEDICAL PARTNERSHIP (PERMANENTE), IN WHICH RESPONDENT PHYSICIANS
WERE PARTNERS, MADE AN AGREEMENT TO SUPPLY MEDICAL SERVICES TO MEMBERS
OF A HEALTH FOUNDATION (KAISER).  A PORTION OF KAISER'S COMPENSATION TO
PERMANENTE WAS IN THE FORM OF PAYMENTS INTO A RETIREMENT TRUST FOR THE
BENEFIT OF PERMANENTE'S PHYSICIANS, NONE OF WHOM WAS ELIGIBLE TO
RECEIVE THE AMOUNTS IN HIS TENTATIVE ACCOUNT PRIOR TO RETIREMENT AFTER
SPECIFIED YEARS OF SERVICE.  NO INTEREST IN THE ACCOUNT WAS DEEMED TO
VEST IN A PARTICULAR BENEFICIARY BEFORE RETIREMENT, AND A PHYSICIAN'S
PRERETIREMENT SEVERANCE FROM PERMANENTE WOULD OCCASION THE FORFEITURE
OF HIS INTEREST, WITH REDISTRIBUTION TO THE REMAINING PARTICIPANTS. 
UNDER NO CIRCUMSTANCES, HOWEVER, COULD KAISER RECOUP THE PAYMENTS ONCE
MADE.  THE COMMISSIONER OF INTERNAL REVENUE ASSESSED A DEFICIENCY
AGAINST EACH PARTNER-RESPONDENT FOR HIS DISTRIBUTIVE SHARE OF THE
AMOUNT PAID BY KAISER, WHICH HE HAD NOT REPORTED AS TAXABLE INCOME.  IN
THIS REFUND SUIT THE DISTRICT COURT, WITH THE COURT OF APPEALS
AFFIRMING, HELD THAT THE PAYMENTS TO THE FUND WERE NOT INCOME TO THE
PARTNERSHIP BECAUSE IT DID NOT RECEIVE AND HAD NO "RIGHT TO RECEIVE"
THEM.  HELD:  THE RETIREMENT FUND PAYMENTS, NOTWITHSTANDING THE FACT
THAT THEY WERE CONTRIBUTED DIRECTLY TO THE TRUST, WERE COMPENSATION FOR
SERVICES THAT PERMANENTE RENDERED UNDER THE MEDICAL-SERVICE AGREEMENT
AND SHOULD HAVE BEEN REPORTED AS INCOME TO PERMANENTE; AND THE
INDIVIDUAL PARTNERS SHOULD HAVE INCLUDED THEIR SHARES OF THAT INCOME IN
THEIR INDIVIDUAL RETURNS, SINCE THE EXISTENCE OF CONDITIONS UPON THE
ACTUAL RECEIPT BY A PARTNER OF INCOME FULLY EARNED BY THE PARTNERSHIP
IS NOT A RELEVANT FACTOR IN DETERMINING ITS TAXABILITY TO HIM.  PP. 448
457. 

450 F.2D 109, REVERSED AND REMANDED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, AND REHNQUIST,
JJ., JOINED.  DOUGLAS, J., DISSENTED. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS IS A PARTNERSHIP INCOME TAX CASE BROUGHT HERE BY THE UNITED
STATES ON A PETITION FOR WRIT OF CERTIORARI FROM THE COURT OF APPEALS
FOR THE NINTH CIRCUIT.  RESPONDENTS, PHYSICIANS AND PARTNERS IN A
MEDICAL PARTNERSHIP, FILED SUIT IN THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA SEEKING THE REFUND OF INCOME TAXES PREVIOUSLY
PAID PURSUANT TO A DEFICIENCY ASSESSED BY THE COMMISSIONER OF INTERNAL
REVENUE.  THE CASE WAS HEARD ON AN AGREED STATEMENT OF FACTS AND THE
DISTRICT COURT RULED IN RESPONDENTS' FAVOR.  295 F.SUPP.  1289(1968). 
THE GOVERNMENT APPEALED TO THE NINTH CIRCUIT AND THAT COURT AFFIRMED
THE LOWER COURT'S JUDGMENT.  450 F.2D 109(1971).  WE AGREED TO HEAR
THIS CASE TO CONSIDER WHETHER, AS THE GOVERNMENT CONTENDS, THE DECISION
BELOW IS IN CONFLICT WITH PRECEDENTS OF THIS COURT.  405 U.S.
1039(1972).  BECAUSE WE FIND THAT THE DECISION IS INCOMPATIBLE WITH
BASIC PRINCIPLES OF INCOME TAXATION AS DEVELOPED IN OUR PRIOR CASES, WE
REVERSE. 

        I 

RESPONDENTS, EACH OF WHOM IS A PHYSICIAN, /1/  ARE PARTNERS IN A
LIMITED PARTNERSHIP KNOWN AS PERMANENTE MEDICAL GROUP, WHICH WAS
ORGANIZED IN CALIFORNIA IN 1949.  ASSOCIATED WITH THE PARTNERSHIP ARE
OVER 200 PARTNER PHYSICIANS, AS WELL AS NUMEROUS NONPARTNER PHYSICIANS
AND OTHER EMPLOYEES.  IN 1959, PERMANENTE ENTERED INTO AN AGREEMENT
WITH KAISER FOUNDATION HEALTH PLAN, INC., A NONPROFIT CORPORATION
PROVIDING PREPAID MEDICAL CARE AND HOSPITAL SERVICES TO ITS DUES-PAYING
MEMBERS. 

PURSUANT TO THE TERMS OF THE AGREEMENT, PERMANENTE AGREED TO SUPPLY
MEDICAL SERVICES FOR THE 390,000 MEMBER-FAMILIES, OR ABOUT 900,000
INDIVIDUALS, IN KAISER'S NORTHERN CALIFORNIA REGION WHICH COVERS
PRIMARILY THE SAN FRANCISCO BAY AREA.  IN EXCHANGE FOR THOSE SERVICES,
KAISER AGREED TO PAY THE PARTNERSHIP A "BASE COMPENSATION" COMPOSED OF
TWO ELEMENTS.  FIRST, KAISER UNDERTOOK TO PAY DIRECTLY TO THE
PARTNERSHIP A SUM EACH MONTH COMPUTED ON THE BASIS OF THE TOTAL NUMBER
OF MEMBERS ENROLLED IN THE HEALTH PROGRAM.  THAT NUMBER WAS MULTIPLIED
BY A STATED FEE, WHICH ORIGINALLY WAS SET AT A LITTLE OVER $2.60.  THE
SECOND ITEM OF COMPENSATION-- AND THE ONE THAT HAS OCCASIONED THE
PRESENT DISPUTE-- CALLED FOR THE CREATION OF A PROGRAM, FUNDED ENTIRELY
BY KAISER, TO PAY RETIREMENT BENEFITS TO PERMANENTE'S PARTNER AND NON
PARTNER PHYSICIANS. 

THE PERTINENT COMPENSATION PROVISION OF THE AGREEMENT DID NOT ITSELF
ESTABLISH THE DETAILS OF THE RETIREMENT PROGRAM; IT SIMPLY OBLIGATED
KAISER TO MAKE CONTRIBUTIONS TO SUCH A PROGRAM IN THE EVENT THAT THE
PARTIES MIGHT THEREAFTER AGREE TO ADOPT ONE.  /2/  AS MIGHT BE
EXPECTED, A SEPARATE TRUST AGREEMENT ESTABLISHING THE CONTEMPLATED PLAN
SOON WAS EXECUTED BY PERMANENTE, KAISER, AND THE BANK OF AMERICA TRUST
AND SAVINGS ASSOCIATION, ACTING AS TRUSTEE.  UNDER THIS AGREEMENT
KAISER AGREED TO MAKE PAYMENTS TO THE TRUST AT A PREDETERMINED RATE,
INITIALLY PEGGED AT 12 CENTS PER HEALTH PLAN MEMBER PER MONTH. 
ADDITIONALLY, KAISER MADE A FLAT PAYMENT OF $200,000 TO START THE FUND
AND AGREED THAT ITS PRO RATA PAYMENT OBLIGATION WOULD BE RETROACTIVE TO
THE DATE OF THE SIGNING OF THE MEDICAL SERVICE AGREEMENT. 

THE BENEFICIARIES OF THE TRUST WERE ALL PARTNER AND NONPARTNER
PHYSICIANS WHO HAD COMPLETED AT LEAST TWO YEARS OF CONTINUOUS SERVICE
WITH THE PARTNERSHIP AND WHO ELECTED TO PARTICIPATE.  THE TRUST
MAINTAINED A SEPARATE TENTATIVE ACCOUNT FOR EACH BENEFICIARY.  AS
PERIODIC PAYMENTS WERE RECEIVED FROM KAISER, THE FUNDS WERE ALLOCATED
AMONG THESE ACCOUNTS PURSUANT TO A COMPLICATED FORMULA DESIGNED TO TAKE
INTO CONSIDERATION ON A RELATIVE BASIS EACH PARTICIPANT'S COMPENSATION
LEVEL, LENGTH OF SERVICE, AND AGE.  NO PHYSICIAN WAS ELIGIBLE TO
RECEIVE THE AMOUNTS IN HIS TENTATIVE ACCOUNT PRIOR TO RETIREMENT, AND
RETIREMENT ESTABLISHED ENTITLEMENT ONLY IF THE PARTICIPANT HAD RENDERED
AT LEAST 15 YEARS OF CONTINUOUS SERVICE OR 10 YEARS OF CONTINUOUS
SERVICE AND HAD ATTAINED AGE 65.  PRIOR TO SUCH TIME, HOWEVER, THE
TRUST AGREEMENT EXPLICITLY PROVIDED THAT NO INTEREST IN ANY TENTATIVE
ACCOUNT WAS TO BE REGARDED AS HAVING VESTED IN ANY PARTICULAR
BENEFICIARY.  /3/  THE AGREEMENT ALSO PROVIDED FOR THE FORFEITURE OF
ANY PHYSICIAN'S INTEREST AND ITS REDISTRIBUTION AMONG THE REMAINING
PARTICIPANTS IF HE WERE TO TERMINATE HIS RELATIONSHIP WITH PERMANENTE
PRIOR TO RETIREMENT.  /4/  A SIMILAR FORFEITURE AND REDISTRIBUTION ALSO
WOULD OCCUR IF, AFTER RETIREMENT, A PHYSICIAN WERE TO RENDER
PROFESSIONAL SERVICES FOR ANY HOSPITAL OR HEALTH PLAN OTHER THAN ONE
OPERATED BY KAISER.  THE TRUST AGREEMENT FURTHER STIPULATED THAT A
RETIRED PHYSICIAN'S RIGHT TO RECEIVE BENEFITS WOULD CEASE IF HE WERE TO
REFUSE ANY REASONABLE REQUEST TO RENDER CONSULTATIVE SERVICES TO ANY
KAISER-OPERATED HEALTH PLAN. 

THE AGREEMENT PROVIDED THAT THE PLAN WOULD CONTINUE IRRESPECTIVE
EITHER OF CHANGES IN THE PARTNERSHIP'S PERSONNEL OR OF ALTERATIONS IN
ITS ORGANIZATIONAL STRUCTURE.  THE PLAN WOULD SURVIVE ANY
REORGANIZATION OF THE PARTNERSHIP SO LONG AS AT LEAST 50% OF THE PLAN'S
PARTICIPANTS REMAINED ASSOCIATED WITH THE REORGANIZED ENTITY.  IN THE
EVENT OF DISSOLUTION OR OF A NONQUALIFYING REORGANIZATION, ALL OF THE
AMOUNTS IN THE TRUST WERE TO BE DIVIDED AMONG THE PARTICIPANTS ENTITLED
THERETO IN AMOUNTS GOVERNED BY EACH PARTICIPANT'S TENTATIVE ACCOUNT. 
UNDER NO CIRCUMSTANCES, HOWEVER, COULD PAYMENTS FROM KAISER TO THE
TRUST BE RECOUPED BY KAISER:  ONCE COMPENSATION WAS PAID INTO THE TRUST
IT WAS THEREAFTER COMMITTED EXCLUSIVELY TO THE BENEFIT OF PERMANENTE'S
PARTICIPATING PHYSICIANS. 

UPON THE RETIREMENT OF ANY PARTNER OR ELIGIBLE NON-PARTNER
PHYSICIAN, IF HE HAD SATISFIED EACH OF THE REQUIREMENTS FOR
PARTICIPATION, THE AMOUNT THAT HAD ACCUMULATED IN HIS TENTATIVE ACCOUNT
OVER THE YEARS WOULD BE APPLIED TO THE PURCHASE OF A RETIREMENT INCOME
CONTRACT.  WHILE THE PROGRAM THUS PROVIDED OBVIOUS BENEFITS TO
PERMANENTE'S PHYSICIANS, IT ALSO SERVED KAISER'S INTERESTS.  BY
PROVIDING ATTRACTIVE DEFERRED BENEFITS FOR PERMANENTE'S STAFF OF
PROFESSIONALS, THE RETIREMENT PLAN WAS DESIGNED TO "CREATE AN
INCENTIVE" FOR PHYSICIANS TO REMAIN WITH PERMANENTE AND THUS "INSURE"
THAT KAISER WOULD HAVE A "STABLE AND RELIABLE GROUP OF PHYSICIANS." 
/5/ 

DURING THE YEARS FROM THE PLAN'S INCEPTION UNTIL ITS DISCONTINUANCE
IN 1963, KAISER PAID A TOTAL OF MORE THAN $2,000,000 INTO THE TRUST. 
PERMANENTE, HOWEVER, DID NOT REPORT THESE PAYMENTS AS INCOME IN ITS
PARTNERSHIP RETURNS.  NOR DID THE INDIVIDUAL PARTNERS INCLUDE THESE
PAYMENTS IN THE COMPUTATIONS OF THEIR DISTRIBUTIVE SHARES OF THE
PARTNERSHIP'S TAXABLE INCOME.  THE COMMISSIONER ASSESSED DEFICIENCIES
AGAINST EACH PARTNER-RESPONDENT FOR HIS DISTRIBUTIVE SHARE OF THE
AMOUNT PAID BY KAISER.  RESPONDENTS, AFTER PAYING THE ASSESSMENTS UNDER
PROTEST, FILED THESE CONSOLIDATED SUITS FOR REFUND. 

THE COMMISSIONER PREMISED HIS ASSESSMENT ON THE CONCLUSION THAT
KAISER'S PAYMENTS TO THE TRUST CONSTITUTED A FORM OF COMPENSATION TO
THE PARTNERSHIP FOR THE SERVICES IT RENDERED AND THEREFORE WAS INCOME
TO THE PARTNERSHIP.  AND, NOTWITHSTANDING THE DEFLECTION OF THOSE
PAYMENTS TO THE RETIREMENT TRUST AND THEIR CURRENT UNAVAILABILITY TO
THE PARTNERS, THE PARTNERS WERE STILL TAXABLE ON THEIR DISTRIBUTIVE
SHARES OF THAT COMPENSATION.  BOTH THE DISTRICT COURT AND THE COURT OF
APPEALS DISAGREED.  THEY HELD THAT THE PAYMENTS TO THE FUND WERE NOT
INCOME TO THE PARTNERSHIP BECAUSE IT DID NOT RECEIVE THEM AND NEVER HAD
A "RIGHT TO RECEIVE"  THEM.  295 F.SUPP.,AT 1292-1294; 450 F.2D, AT 114
115.  THEY REASONED THAT THE PARTNERSHIP, AS AN ENTITY, SHOULD BE
DISREGARDED AND THAT EACH PARTNER SHOULD BE TREATED SIMPLY AS A
POTENTIAL BENEFICIARY OF HIS TENTATIVE SHARE OF THE RETIREMENT FUND. 
/6/  VIEWED IN THIS LIGHT, NO PRESENTLY TAXABLE INCOME COULD BE
ATTRIBUTED TO THESE CASH BASIS /7/  TAXPAYERS BECAUSE OF THE CONTINGENT
AND FORFEITABLE NATURE OF THE FUND ALLOCATIONS.  295 F.SUPP.,AT 1294
1296; 450 F.2D, AT 112. 

WE HOLD THAT THE COURTS BELOW ERRED AND THAT RESPONDENTS WERE
PROPERLY TAXABLE ON THE PARTNERSHIP'S RETIREMENT FUND INCOME.  THIS
CONCLUSION RESTS ON TWO FAMILIAR PRINCIPLES OF INCOME TAXATION, FIRST,
THAT INCOME IS TAXED TO THE PARTY WHO EARNS IT AND THAT LIABILITY MAY
NOT BE AVOIDED THROUGH AN ANTICIPATORY ASSIGNMENT OF THAT INCOME, AND,
SECOND, THAT PARTNERS ARE TAXABLE ON THEIR DISTRIBUTIVE OR
PROPORTIONATE SHARES OF CURRENT PARTNERSHIP INCOME IRRESPECTIVE OF
WHETHER THAT INCOME IS ACTUALLY DISTRIBUTED TO THEM.  THE ENSUING
DISCUSSION IS SIMPLY AN APPLICATION OF THOSE PRINCIPLES TO THE FACTS OF
THE PRESENT CASE. 

II 

PERTINENT HERE, PRESCRIBES THAT "(THE TAXABLE INCOME OF A PARTNERSHIP
SHALL BE COMPUTED IN THE SAME MANNER AS IN THE CASE OF AN INDIVIDUAL." 
26 U.S.C. 703(A).  THUS, WHILE THE PARTNERSHIP ITSELF PAYS NO TAXES, 26
U.S.C. 701, IT MUST REPORT THE INCOME IT GENERATES AND SUCH INCOME MUST
BE CALCULATED IN LARGELY THE SAME MANNER AS AN INDIVIDUAL COMPUTES HIS
PERSONAL INCOME.  FOR THIS PURPOSE, THEN, THE PARTNERSHIP IS REGARDED
AS AN INDEPENDENTLY RECOGNIZABLE ENTITY APART FROM THE AGGREGATE OF ITS
PARTNERS.  ONCE ITS INCOME IS ASCERTAINED AND REPORTED, ITS EXISTENCE
MAY BE DISREGARDED SINCE EACH PARTNER MUST PAY A TAX ON A PORTION OF
THE TOTAL INCOME AS IF THE PARTNERSHIP WERE MERELY AN AGENT OR CONDUIT
THROUGH WHICH THE INCOME PASSED.  /8/ 

IN DETERMINING ANY PARTNER'S INCOME, IT IS FIRST NECESSARY TO
COMPUTE THE GROSS INCOME OF THE PARTNERSHIP.  ONE OF THE MAJOR SOURCES
OF GROSS INCOME, AS DEFINED IN SEC. 61(A)(1) OF THE CODE, IS
"(COMPENSATION FOR SERVICES, INCLUDING FEES, COMMISSIONS, AND SIMILAR
ITEMS."  26 U.S.C. 61(A)(1).  THERE CAN BE NO QUESTION THAT KAISER'S
PAYMENTS TO THE RETIREMENT TRUST WERE COMPENSATION FOR SERVICES
RENDERED BY THE PARTNERSHIP UNDER THE MEDICAL SERVICE AGREEMENT.  THESE
PAYMENTS CONSTITUTED AN INTEGRAL PART OF THE EMPLOYMENT ARRANGEMENT. 
THE AGREEMENT ITSELF CALLED FOR TWO FORMS OF "BASE COMPENSATION" TO BE
PAID IN EXCHANGE FOR SERVICES RENDERED-- DIRECT PER-MEMBER, PER-MONTH
PAYMENTS TO THE PARTNERSHIP AND OTHER, SIMILARLY COMPUTED, PAYMENTS TO
THE TRUST.  NOR WAS THE RECEIPT OF THESE PAYMENTS CONTINGENT UPON ANY
CONDITION OTHER THAN CONTINUATION OF THE CONTRACTUAL RELATIONSHIP AND
THE PERFORMANCE OF THE PRESCRIBED MEDICAL SERVICES.  PAYMENTS TO THE
TRUST, MUCH LIKE THE DIRECT PAYMENTS TO THE PARTNERSHIP, WERE NOT
FORFEITABLE BY THE PARTNERSHIP OR RECOVERABLE BY KAISER UPON THE
HAPPENING OF ANY CONTINGENCY. 

YET THE COURTS BELOW, FOCUSING ON THE FACT THAT THE RETIREMENT FUND
PAYMENTS WERE NEVER ACTUALLY RECEIVED BY THE PARTNERSHIP BUT WERE
CONTRIBUTED DIRECTLY TO THE TRUST, FOUND THAT THE PAYMENTS WERE NOT
INCLUDABLE AS INCOME IN THE PARTNERSHIP'S RETURNS.  THE VIEW OF TAX
ACCOUNTABILITY UPON WHICH THIS CONCLUSION RESTS IS INCOMPATIBLE WITH A
FOUNDATIONAL RULE, WHICH THIS COURT HAS DESCRIBED AS "THE FIRST
PRINCIPLE OF INCOME TAXATION:  THAT INCOME MUST BE TAXED TO HIM WHO
EARNS IT."  COMMISSIONER V. CULBERTSON, 337 U.S. 733, 739-740(1949). 
THE ENTITY EARNING THE INCOME-- WHETHER A PARTNERSHIP OR AN INDIVIDUAL
TAXPAYER-- CANNOT AVOID TAXATION BY ENTERING INTO A CONTRACTUAL
ARRANGEMENT WHEREBY THAT INCOME IS DIVERTED TO SOME OTHER PERSON OR
ENTITY.  SUCH ARRANGEMENTS, KNOWN TO THE TAX LAW AS "ANTICIPATORY
ASSIGNMENTS OF INCOME," HAVE FREQUENTLY BEEN HELD INEFFECTIVE AS MEANS
OF AVOIDING TAX LIABILITY. 

THE SEMINAL PRECEDENT, WRITTEN OVER 40 YEARS AGO, IS MR. JUSTICE
HOLMES' OPINION FOR A UNANIMOUS COURT IN LUCAS V. EARL, 281 U.S.
111(1930).  THERE THE TAXPAYER ENTERED INTO A CONTRACT WITH HIS WIFE
WHEREBY SHE BECAME ENTITLED TO ONE-HALF OF ANY INCOME HE MIGHT EARN IN
THE FUTURE.  ON THE BELIEF THAT A TAXPAYER WAS ACCOUNTABLE ONLY FOR
INCOME ACTUALLY RECEIVED BY HIM, THE HUSBAND THEREAFTER REPORTED ONLY
HALF OF HIS INCOME.  THE COURT, UNWILLING TO ACCEPT THAT A REASONABLE
CONSTRUCTION OF THE TAX LAWS PERMITTED SUCH EASY DEFLECTION OF INCOME
TAX LIABILITY, HELD THAT THE TAXPAYER WAS RESPONSIBLE FOR THE ENTIRE
AMOUNT OF HIS INCOME. 

THE BASIS FOR THE COURT'S RULING IS EXPLICIT AND CONTROLS THE CASE
BEFORE US TODAY: 

"(THIS CASE IS NOT TO BE DECIDED BY ATTENUATED SUBTLETIES.  IT TURNS
ON THE IMPORT AND REASONABLE CONSTRUCTION OF THE TAXING ACT.  THERE IS
NO DOUBT THAT THE STATUTE COULD TAX SALARIES TO THOSE WHO EARNED THEM
AND PROVIDE THAT THE TAX COULD NOT BE ESCAPED BY ANTICIPATORY
ARRANGEMENTS AND CONTRACTS HOWEVER SKILLFULLY DEVISED TO PREVENT THE
SALARY WHEN PAID FROM VESTING EVEN FOR A SECOND IN THE MAN WHO EARNED
IT.  THAT SEEMS TO US THE IMPORT OF THE STATUTE BEFORE US AND WE THINK
THAT NO DISTINCTION CAN BE TAKEN ACCORDING TO THE MOTIVES LEADING TO
THE ARRANGEMENT BY WHICH THE FRUITS ARE ATTRIBUTED TO A DIFFERENT TREE
FROM THAT ON WHICH THEY GREW."  ID., AT 114-115.  THE PRINCIPLE OF
LUCAS V. EARL, THAT HE WHO EARNS INCOME MAY NOT AVOID TAXATION THROUGH
ANTICIPATORY ARRANGEMENTS NO MATTER HOW CLEVER OR SUBTLE, HAS BEEN
REPEATEDLY INVOKED BY THIS COURT AND STANDS TODAY AS A CORNERSTONE OF
OUR GRADUATED INCOME TAX SYSTEM.  SEE, E.G., COMMISSIONER V. HARMON,
323 U.S. 44(1944); UNITED STATES V. JOLIET & CHICAGO R. CO., 315 U.S.
44(1942); HELVERING V. EUBANK, 311 U.S. 122(1940); BURNET V. LEININGER,
285 U.S. 136(1932).  AND, OF COURSE, THAT PRINCIPLE APPLIES WITH EQUAL
FORCE IN ASSESSING PARTNERSHIP INCOME.     PERMANENTE'S AGREEMENT WITH
KAISER, WHEREBY A PORTION OF THE PARTNERSHIP COMPENSATION WAS DEFLECTED
TO THE RETIREMENT FUND, IS CERTAINLY WITHIN THE AMBIT OF LUCAS V.
EARL.  THE PARTNERSHIP EARNED THE INCOME AND, AS A RESULT OF ARM'S
LENGTH BARGAINING WITH KAISER, /9/  WAS RESPONSIBLE FOR ITS DIVERSION
INTO THE TRUST FUND.  THE COURT OF APPEALS FOUND THE LUCAS PRINCIPLE
INAPPLICABLE BECAUSE PERMANENTE "NEVER HAD THE RIGHT ITSELF TO RECEIVE
THE PAYMENTS MADE INTO THE TRUST AS CURRENT INCOME."  450 F.2D, AT
114.  IN SUPPORT OF THIS ASSERTION, THE COURT RELIED ON LANGUAGE IN THE
AGREED STATEMENT OF FACTS STIPULATING THAT "(THE PAYMENTS . . . WERE
PAID SOLELY TO FUND THE RETIREMENT PLAN, AND WERE NOT OTHERWISE
AVAILABLE TO (PERMANENTE) . . . "  IBID.  EMPHASIZING THAT ;HE FUND WAS
CREATED TO SERVE KAISER'S INTEREST IN A STABLE SOURCE OF QUALIFIED,
EXPERIENCED PHYSICIANS, /10/  THE COURT FOUND THAT PERMANENTE COULD NOT
HAVE RECEIVED THAT INCOME EXCEPT IN THE FORM IN WHICH IT WAS RECEIVED. 

THE COURT'S REASONING SEEMS TO BE THAT, BEFORE THE PARTNERSHIP COULD
BE FOUND TO HAVE RECEIVED INCOME, THERE MUST BE PROOF THAT "PERMANENTE
AGREED TO ACCEPT LESS DIRECT COMPENSATION FROM KAISER IN EXCHANGE FOR
THE RETIREMENT PLAN PAYMENTS."  ID., AT 114-115.  APART FROM THE
INHERENT DIFFICULTY OF ADDUCING SUCH EVIDENCE, WE KNOW OF NO AUTHORITY
IMPOSING THIS BURDEN UPON THE GOVERNMENT.  NOR DO WE BELIEVE THAT THE
GUIDING PRINCIPLE OF LUCAS V. EARL MAY BE SO EASILY CIRCUMVENTED. 
KAISER'S MOTIVES FOR MAKING PAYMENTS ARE IRRELEVANT TO THE
DETERMINATION WHETHER THOSE AMOUNTS MAY FAIRLY BE VIEWED AS
COMPENSATION FOR SERVICES RENDERED.  /11/  NEITHER DOES KAISER'S
APPARENT INSISTENCE UPON PAYMENT TO THE TRUST DEPRIVE THE AGREED
CONTRIBUTIONS OF THEIR CHARACTER AS COMPENSATION.  THE GOVERNMENT NEED
NOT PROVE THAT THE TAXPAYER HAD COMPLETE AND UNRESTRICTED POWER TO
DESIGNATE THE MANNER AND FORM IN WHICH HIS INCOME IS RECEIVED.  WE MAY
ASSUME, ESPECIALLY IN VIEW OF THE RELATIVELY UNFAVORABLE TAX STATUS OF
SELF-EMPLOYED PERSONS WITH RESPECT TO THE TAX TREATMENT OF RETIREMENT
PLANS, /12/  THAT MANY PARTNERSHIPS WOULD EAGERLY ACCEPT CONDITIONS
SIMILAR TO THOSE PRESCRIBED BY THIS TRUST IN CONSIDERATION FOR TAX
DEFERRAL BENEFITS OF THE SORT SUGGESTED HERE.  WE THINK IT CLEAR,
HOWEVER, THAT THE TAX LAWS PERMIT NO SUCH EASY ROAD TO TAX AVOIDANCE OR
DEFERMENT.  /13/  DESPITE THE NOVELTY AND INGENUITY OF THIS
ARRANGEMENT, PERMANENTE'S "BASE COMPENSATION" IN THE FORM OF PAYMENTS
TO A RETIREMENT FUND WAS INCOME TO THE PARTNERSHIP AND SHOULD HAVE BEEN
REPORTED AS SUCH. 

        III 

SINCE THE RETIREMENT FUND PAYMENTS SHOULD HAVE BEEN REPORTED AS
INCOME TO THE PARTNERSHIP, ALONG WITH OTHER INCOME RECEIVED FROM
KAISER, THE INDIVIDUAL PARTNERS SHOULD HAVE INCLUDED THEIR SHARES OF
THAT INCOME IN THEIR INDIVIDUAL RETURNS.  26 U.S.C. 61(A)(13), 702,
704.  FOR IT IS AXIOMATIC THAT EACH PARTNER MUST PAY TAXES ON HIS
DISTRIBUTIVE SHARE OF THE PARTNERSHIP'S INCOME WITHOUT REGARD TO
WHETHER THAT AMOUNT IS ACTUALLY DISTRIBUTED TO HIM.  HEINER V. MELLON,
304 U.S. 271(1938), DECIDED UNDER A PREDECESSOR TO THE CURRENT
PARTNERSHIP PROVISIONS OF THE CODE, /14/  ARTICULATES THE SALIENT
PROPOSITION.  AFTER CONCLUDING THAT "DISTRIBUTIVE" SHARE MEANS THE
"PROPORTIONATE"  SHARE AS DETERMINED BY THE PARTNERSHIP AGREEMENT, ID.,
AT 280, THE COURT STATED: 

"THE TAX IS THUS IMPOSED UPON THE PARTNER'S PROPORTIONATE SHARE OF
THE NET INCOME OF THE PARTNERSHIP, AND THE FACT THAT IT MAY NOT BE
CURRENTLY DISTRIBUTABLE, WHETHER BY AGREEMENT OF THE PARTIES OR BY
OPERATION OF LAW, IS NOT MATERIAL."  ID., AT 281.  FEW PRINCIPLES OF
PARTNERSHIP TAXATION ARE MORE FIRMLY ESTABLISHED THAN THAT NO MATTER
THE REASON FOR NONDISTRIBUTION EACH PARTNER MUST PAY TAXES ON HIS
DISTRIBUTIVE SHARE.  TREAS. REG. SEC. 1.702-1, 26 CFR 1.702-1(1872). 
/15/  SEE, E.G., HULBERT V. COMMISSIONER, 227 F.2D 388(CA7 1955); BELL
V. COMMISSIONER, 219 F.2D 442(CS5 1955); STEWART V. UNITED STATES, 263
F.SUPP.  451(SDNY 1967); FREUDMANN V. COMMISSIONER, 10 T.C. 775(1948);
S. SURREY & W. WARREN, FEDERAL INCOME TAXATION 1115 (1960); 6
J.MERTENS, LAW OF FEDERAL INCOME TAXATION 35.01, 35.22 (1968); A.
WILLIS, ON PARTNERSHIP TAXATION SEC. 5.01(1971). 

THE COURTS BELOW REASONED TO THE CONTRARY, HOLDING THAT THE PARTNERS
HERE WERE NOT PROPERLY TAXABLE ON THE AMOUNTS CONTRIBUTED TO THE
RETIREMENT FUND.  THIS VIEW, APPARENTLY, WAS BASED ON THE ASSUMPTION
THAT EACH PARTNER'S DISTRIBUTIVE SHARE PRIOR TO RETIREMENT WAS TOO
CONTINGENT AND UNASCERTAINABLE TO CONSTITUTE PRESENTLY RECOGNIZABLE
INCOME.  IT IS TRUE THAT NO PARTNER KNEW WITH CERTAINTY EXACTLY HOW
MUCH HE WOULD ULTIMATELY RECEIVE OR WHETHER HE WOULD IN FACT BE
ENTITLED TO RECEIVE ANYTHING.  BUT THE EXISTENCE OF CONDITIONS UPON THE
ACTUAL RECEIPT BY A PARTNER OF INCOME FULLY EARNED BY THE PARTNERSHIP
IS IRRELEVANT IN DETERMINING THE AMOUNT OF TAX DUE FROM HIM.  THE FACT
THAT THE COURTS BELOW PLACED SUCH EMPHASIS ON THIS FACTOR SUGGESTS THE
BASIC MISAPPREHENSION UNDER WHICH THEY LABORED IN THIS CASE.  RATHER
THAN BEING VIEWED AS RESPONSIBLE CONTRIBUTORS TO THE PARTNERSHIP'S
TOTAL INCOME, RESPONDENT-PARTNERS WERE SEEN ONLY AS CONTINGENT
BENEFICIARIES OF THE TRUST.  IN SOME MEASURE, THIS MISPLACED FOCUS ON
THE CONSIDERATIONS OF UNCERTAINTY AND FORFEITABILITY MAY BE A
CONSEQUENCE OF THE ERRONEOUS MANNER IN WHICH THE COMMISSIONER
ORIGINALLY ASSESSED THE PARTNERS' DEFICIENCIES.  THE COMMISSIONER
DIVIDED KAISER'S TRUST FUND PAYMENTS INTO TWO CATEGORIES:  (1) PAYMENTS
EARMARKED FOR THE TENTATIVE ACCOUNTS OF NONPARTNER PHYSICIANS: AND (2)
THOSE ALLOTTED TO PARTNER PHYSICIANS.  THE PAYMENTS TO THE TRUST FOR
THE FORMER CATEGORY OF NONPARTNER PHYSICIANS WERE CORRECTLY COUNTED AS
INCOME TO THE PARTNERS IN ACCORD WITH THE DISTRIBUTIVE-SHARE FORMULA AS
ESTABLISHED IN THE PARTNERSHIP AGREEMENT.  /16/  THE LATTER PAYMENTS TO
THE TENTATIVE ACCOUNTS OF THE INDIVIDUAL PARTNERS, HOWEVER, WERE
IMPROPERLY ALLOCATED TO EACH PARTNER PURSUANT TO THE COMPLEX FORMULA IN
THE RETIREMENT PLAN ITSELF, JUST AS IF THAT AGREEMENT OPERATED AS AN
AMENDMENT TO THE PARTNERSHIP AGREEMENT.  295 F.SUPP.,AT 1292. 

THE SOLICITOR-GENERAL, ALLUDING TO THIS MISCOMPUTATION DURING ORAL
ARGUMENT, SUGGESTED THAT THIS ERROR "MAY BE WHAT THREW THE COURT BELOW
OFF THE TRACK."  /17/  IT SHOULD BE CLEAR THAT THE CONTINGENT AND
UNASCERTAINABLE NATURE OF EACH PARTNER'S SHARE UNDER THE RETIREMENT
TRUST IS IRRELEVANT TO THE COMPUTATION OF HIS DISTRIBUTIVE SHARE.  THE
PARTNERSHIP HAD RECEIVED AS INCOME A DEFINITE SUM WHICH WAS NOT SUBJECT
TO DIMINUTION OR FORFEITURE.  ONLY ITS ULTIMATE DISPOSITION AMONG THE
EMPLOYEES AND PARTNERS REMAINED UNCERTAIN.  FOR PURPOSES OF INCOME TAX
COMPUTATION IT MADE NO DIFFERENCE THAT SOME PARTNERS MIGHT HAVE ELECTED
NOT TO PARTICIPATE IN THE RETIREMENT PROGRAM OR THAT, FOR ANY NUMBER OF
REASONS, THEY MIGHT NOT ULTIMATELY RECEIVE ANY OF THE TRUST'S
BENEFITS.  INDEED, AS THE GOVERNMENT SUGGESTS, THE RESULT WOULD BE
QUITE THE SAME IF THE "POTENTIAL BENEFICIARIES INCLUDED NO PARTNERS AT
ALL, BUT WERE CHILDREN, RELATIVES, OR OTHER OBJECTS OF THE
PARTNERSHIP'S LARGESSE."  /18/  THE SOLE OPERATIVE CONSIDERATION IS
THAT THE INCOME HAD BEEN RECEIVED BY THE PARTNERSHIP, NOT WHAT
DISPOSITION MIGHT HAVE BEEN EFFECTED ONCE THE FUNDS WERE RECEIVED. 

        IV 

IN SUMMARY, WE FIND THIS CASE CONTROLLED BY FAMILIAR AND LONG
SETTLED PRINCIPLES OF INCOME AND PARTNERSHIP TAXATION.  THERE BEING NO
DOUBT ABOUT THE CHARACTER OF THE PAYMENTS AS COMPENSATION, OR ABOUT
THEIR ACTUAL RECEIPT, THE PARTNERSHIP WAS OBLIGATED TO REPORT THEM AS
INCOME PRESENTLY RECEIVED.  LIKEWISE, EACH PARTNER WAS RESPONSIBLE FOR
HIS DISTRIBUTIVE SHARE OF THAT INCOME.  WE, THEREFORE, REVERSE THE
JUDGMENTS AND REMAND THE CASE WITH DIRECTIONS THAT JUDGMENTS BE ENTERED
FOR THE UNITED STATES. 

              IT IS SO ORDERED. 

/0/  GEORGE E. LINK FILED A BRIEF FOR KAISER FOUNDATION HEALTH PLAN,
INC., AS AMICUS CURIAE URGING AFFIRMANCE. 

/1/ TECHNICALLY, THE MARRIED RESPONDENTS' SPOUSES ARE ALSO PARTIES
BECAUSE THEY FILED JOINT INCOME TAX RETURNS FOR THE YEARS IN QUESTION
HERE.  ANY REFERENCE TO RESPONDENTS IN THIS OPINION, HOWEVER, REFERS
ONLY TO THE PARTNER PHYSICIANS. 

/2/  THE PERTINENT PORTION OF THE KAISER-PERMANENTE MEDICAL SERVICE
CONTRACT STATES:

        "ARTICLE H

        "BASE COMPENSATION TO MEDICAL GROUP 

"AS BASE COMPENSATION TO (PERMANENTE) FOR MEDICAL SERVICES TO BE
PROVIDED BY (PERMANENTE) HEREUNDER, (KAISER) SHALL PAY TO (PERMANENTE)
THE AMOUNTS SPECIFIED IN THIS ARTICLE H.

        "SECTION H-4.  PROVISION FOR SAVINGS AND RETIREMENT PROGRAM

           FOR PHYSICIANS. 

"IN THE EVENT THAT (PERMANENTE) ESTABLISHES A SAVINGS AND RETIREMENT
PLAN OR OTHER DEFERRED COMPENSATION PLAN APPROVED BY (KAISER), (KAISER)
WILL PAY, IN ADDITION TO ALL OTHER SUMS PAYABLE BY (KAISER) UNDER THIS
AGREEMENT, THE CONTRIBUTIONS REQUIRED UNDER SUCH PLAN TO THE EXTENT
THAT SUCH CONTRIBUTIONS EXCEED AMOUNTS, IF ANY, CONTRIBUTED BY
PHYSICIANS . . . " 

/3/  THE TRUST AGREEMENT STATES: 

"THE TENTATIVE ACCOUNTS AND SUSPENDED TENTATIVE ACCOUNTS PROVIDED
FOR PARTICIPANTS HEREUNDER ARE SOLELY FOR THE PURPOSE OF FACILITATING
RECORD KEEPING AND NECESSARY COMPUTATIONS, AND CONFER NO RIGHTS IN THE
TRUST FUND UPON THE INDIVIDUALS FOR WHOM THEY ARE ESTABLISHED . . . " 

/4/  IF, HOWEVER, TERMINATION WERE OCCASIONED BY DEATH OR PERMANENT
DISABILITY, THE TRUST AGREEMENT PROVIDED FOR RECEIPT OF SUCH AMOUNTS AS
HAD ACCUMULATED IN THAT PHYSICIAN'S TENTATIVE ACCOUNT.  ADDITIONALLY,
IF, AFTER HIS TERMINATION FOR REASONS OF DISABILITY PRIOR TO
RETIREMENT, A PHYSICIAN SHOULD REASSOCIATE WITH SOME AFFILIATED MEDICAL
GROUP HIS RIGHTS AS A PARTICIPANT WOULD NOT BE FORFEITED. 

/5/  THE AGREED STATEMENT OF FACTS FILED BY THE PARTIES IN THE
DISTRICT COURT STATES: 

"THE PRIMARY PURPOSE OF THE RETIREMENT PLAN WAS TO CREATE AN
INCENTIVE FOR PHYSICIANS TO REMAIN WITH (PERMANENTE) . . . AND THUS TO
INSURE (KAISER) THAT I WOULD HAVE A STABLE AND RELIABLE GROUP OF
PHYSICIANS PROVIDING MEDICAL SERVICES TO ITS MEMBERS WITH A MINIMUM OF
TURN-OVER . . . " 

/6/  THE COURT OF APPEALS PURPORTED NOT TO DECIDE, AS THE DISTRICT
COURT HAD, WHETHER THE PARTNERSHIP SHOULD BE VIEWED AS AN "ENTITY" OR
AS A "CONDUIT."  450 F.2D 109, 113 N. 5, AND 115.  YET, ITS ANALYSIS
INDICATES THAT IT FOUND IT PROPER TO DISREGARD THE PARTNERSHIP AS A
SEPARATE ENTITY.  AFTER EXPLAINING ITS VIEW THAT PERMANENTE NEVER HAD A
RIGHT TO RECEIVE THE PAYMENTS, THE COURT OF APPEALS STATED:  "WHEN THE
TRANSACTION IS VIEWED IN THIS LIGHT, THE PARTNERSHIP BECOMES A MERE
AGENT CONTRACTING ON BEHALF OF ITS MEMBERS FOR PAYMENTS TO THE TRUST
FOR THEIR ULTIMATE BENEFIT, RATHER THAN A PRINCIPAL WHICH ITSELF
REALIZES TAXABLE INCOME."  ID., AT 115. 

/7/  EACH RESPONDENT REPORTED HIS INCOME FOR THE YEARS IN QUESTION
ON THE CASH BASIS.  THE PARTNERSHIP REPORTED ITS TAXABLE RECEIPTS UNDER
THE ACCRUAL METHOD. 

/8/  THERE HAS BEEN A GREAT DEAL OF DISCUSSION IN THE BRIEFS AND IN
THE LOWER COURT OPINIONS WITH RESPECT TO WHETHER A PARTNERSHIP IS TO BE
VIEWED AS AN "ENTITY" OR AS A "CONDUIT."  WE FIND OURSELVES IN
AGREEMENT WITH THE SOLICITOR GENERAL'S REMARK DURING ORAL ARGUMENT WHEN
HE SUGGESTED THAT (IT SEEMS ODD THAT WE SHOULD STILL BE DISCUSSING SUCH
THINGS IN 1972."  TR. OF ORAL ARG. 14.  THE LEGISLATIVE HISTORY
INDICATES, AND THE COMMENTATORS AGREE, THAT PARTNERSHIPS ARE ENTITIES
FOR PURPOSES OF CALCULATING AND FILING INFORMATIONAL RETURNS BUT THAT
THEY ARE CONDUITS THROUGH WHICH THE TAXPAYING OBLIGATION PASSES TO THE
INDIVIDUAL PARTNERS IN ACCORD WITH THEIR DISTRIBUTIVE SHARES.  SEE,
E.G., H.R. REP. NO. 1337, 83D CONG., 2D SESS., 65-66(1954); S. REP. NO.
1622, 83D CONG. 2D SESS., 89-90 (1954); 6 J.MERTENS, LAW OF FEDERAL
INCOME TAXATION 35.01 (1968); S. SURREY & W. WARREN, FEDERAL INCOME
TAXATION 1115-1116(1960); JACKSON, JOHNSON, SURREY, TENEN & WARREN, THE
INTERNAL REVENUE CODE OF 1954; PARTNERSHIPS, 54 COL.L.REV. 
1183(1954). 

/9/  THE AGREED STATEMENT OF FACTS STATES THAT THE CONTRACTING
PARTIES WERE "SEPARATE ORGANIZATIONS INDEPENDENTLY CONTRACTING WITH ONE
ANOTHER AT ARMS' LENGTH." 

/10/  SEE N. 5, SUPRA. 

/11/  RESPONDENTS DO NOT CONTEND THAT SUCH PAYMENTS WERE GIFTS OR
SOME OTHER TYPE OF NONTAXABLE CONTRIBUTION.  SEE COMMISSIONER V. LOBUE,
351 U.S. 243(1956); BINGLER V. JOHNSON, 394 U.S. 741(1969). 

/12/  DISPARITIES HAVE LONG EXISTED BETWEEN THE TAX TREATMENT OF
PENSION PLANS F8 FOR CORPORATE EMPLOYEES AND THE TREATMENT OF SIMILAR
PLANS FOR THE SELF-EMPLOYED AND FOR MEMBERS OF PARTNERSHIPS.  S. SURREY
& W. WARREN, SUPRA, N. 8, AT 598-599.  IN 1962, CONGRESS ENDEAVORED TO
AMELIORATE THESE DIFFERENCES BY ENACTING CORRECTIVE LEGISLATION, PUB.
L. 87-792, 76 STAT. 809.  WHILE THAT LEGISLATION, COMMONLY KNOWN AS
H.R. 10 OR THE JENKINS-KEOGH BILL, PROVIDED SOME RELIEF, IT FELL FAR
SHORT OF AFFORDING A PARITY OF TREATMENT FOR PROFESSIONALS AND OTHER
SELF-EMPLOYED INDIVIDUALS.  INTERNAL REVENUE CODE OF 1954, SEC. 404. 
FOR A DETAILED REVIEW OF THE INTRICATE PROVISIONS OF THE APPLICABLE
STATUTE AND FOR A CLOSE COMPARISON OF THE PRESENT DIFFERENCES, SEE
GRAYCK, TAX QUALIFIED RETIREMENT PLANS FOR PROFESSIONAL PRACTITIONERS:
A COMPARISON OF THE SELF-EMPLOYED INDIVIDUALS TAX REQUIREMENT ACT OF
1962 AND THE PROFESSIONAL ASSOCIATION, 63 COL.L.REV.  415 (1963); NOTE,
FEDERAL TAX POLICY AND RETIREMENT BENEFITS-- A NEW APPROACH, 59
GEOL.L.J. 1299 (1971); NOTE, TAX PARITY FOR SELF-EMPLOYED RETIREMENT
PLANS, 58 VA.L.REV.  338(1972).     /13/  RESPONDENTS CONTEND IN THIS
COURT THAT THIS CASE IS CONTROLLED BY COMMISSIONER V. FIRST SECURITY
BANK OF UTAH, 405 U.S. 394(1972), DECIDED LAST TERM.  WE HELD THERE
THAT THE COMMISSIONER COULD NOT PROPERLY ALLOCATE INCOME TO ONE OF A
CONTROLLED GROUP OF CORPORATIONS UNDER 26 U.S.C. 482 WHERE THAT
CORPORATION COULD NOT HAVE RECEIVED THAT INCOME AS A MATTER OF LAW. 
THE "ASSIGNMENT-OF-INCOME DOCTRINE" COULD HAVE NO APPLICATION IN THAT
PECULIAR CIRCUMSTANCE BECAUSE THE TAXPAYER HAD NO LEGAL RIGHT TO
RECEIVE THE INCOME IN QUESTION, ID., AT 403-404.  IN ESSENCE, THAT CASE
INVOLVED A DEFLECTION OF INCOME IMPOSED BY LAW, NOT AN ASSIGNMENT
ARRIVED AT BY THE CONSENSUAL AGREEMENT OF TWO PARTIES ACTING AT ARM'S
LENGTH AS WE HAVE IN THE PRESENT CASE.  SEE N. 5, SUPRA.     /14/
REVENUE ACT OF 1918, SEC. 218(A), 40 STAT. 1070: 

"THERE SHALL BE INCLUDED IN COMPUTING THE NET INCOME OF EACH PARTNER
HIS DISTRIBUTIVE SHARE, WHETHER DISTRIBUTED OR NOT, OF THE NET INCOME
OF THE PARTNERSHIP FOR THE TAXABLE YEAR . . . " 

OTHER PREDECESSOR STATUTES CONTAINED SIMILAR EXPLICIT INDICATIONS
THAT A PARTNER'S DISTRIBUTIVE SHARE WAS TO BE COMPUTED WITHOUT
REFERENCE TO ACTUAL DISTRIBUTION.  SEE INCOME TAX ACT OF 1913, SEC. II
D, 38 STAT. 169 ("WHETHER DIVIDED OR OTHERWISE"); REVENUE ACT OF 1938,
SEC. 182, 52 STAT. 5-1 ("WHETHER OR NOT DISTRIBUTION IS MADE TO HIM"). 
NOTHING IN THE LEGISLATIVE HISTORY SUGGESTS THAT ANY SUBSTANTIVE CHANGE
WAS INTENDED BY THE DELETION OF THIS PHRASE FROM THE 1954 CODE
REVISIONS.  SEE H.R. REP. NO. 1337, 83D CONG., 2D SESS., 65(1954); S.
REP. NO. 1622, 83D CONG., 2D SESS., 89(1954). 

/15/  THE REGULATION STATES AS FOLLOWS: 

"EACH PARTNER IS REQUIRED TO TAKE INTO ACCOUNT SEPARATELY IN HIS
RETURN HIS DISTRIBUTIVE SHARE, WHETHER OR NOT DISTRIBUTED, OF EACH
CLASS OR ITEM OF PARTNERSHIP INCOME . . . " 

/16/  THESE AMOUNTS WOULD BE DIVIDED EQUALLY AMONG THE PARTNERS
PURSUANT TO THE PARTNERSHIP AGREEMENT'S STIPULATION THAT ALL INCOME
ABOVE EACH PARTNER'S DRAWING ACCOUNT "SHALL BE DISTRIBUTED EQUALLY." 

/17/  TR. OF ORAL ARG. 13-14.  AS THE SOLICITOR GENERAL HAS ALSO
POINTED OUT, THE PARTIES HAVE, BY STIPULATION IN THEIR AGREED STATEMENT
OF FACTS, FORESEEN THAT RECOMPUTATIONS MIGHT BE NECESSARY IN LIGHT OF
THE ULTIMATE RESOLUTION OF THIS CONTROVERSY AND HAVE TAKEN PRECAUTIONS
TO ASSURE THAT ANY REALLOCATIONS MAY BE HANDLED EXPEDITIOUSLY.  AGREED
STATEMENT OF FACTS P. 24, APP. 8788. 

/18/  BRIEF FOR UNITED STATES 21.  FOR THIS REASON, THE CASES RELIED
ON BY THE COURT OF APPEALS, 450 F.2D, AT 113, WHICH HAVE HELD THAT
PAYMENTS MADE INTO DEFERRED COMPENSATION PROGRAMS HAVING CONTINGENT AND
FORFEITABLE FEATURES ARE NOT TAXABLE UNTIL RECEIVED, ARE INAPPOSITE. 
SCHAEFER V. BOWERS 50 F.2D 689(CA2 1931); PERKINS V. COMMISSIONER, 8
T.C. 1051(1947); ROBERTSON V. COMMISSIONER, 6 T.C. 1060(1946).  INDEED,
THE GOVERNMENT NOTES, POSSIBLY AS A CONSEQUENCE OF THESE CASES, THAT
THE COMMISSIONER HAS NOT SOUGHT TO TAX THE NONPARTNER PHYSICIANS ON
THEIR CONTINGENT ACCOUNTS UNDER THE RETIREMENT PLAN.  BRIEF FOR UNITED
STATES 21. 

MR. JUSTICE DOUGLAS DISSENTS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEFS WERE ASSISTANT ATTORNEY GENERAL CRAMPTON,
RICHARD B. STONE, MEYER ROTHWACKS, AND ERNEST J. BROWN. 

VALENTINE BROOKES ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE LEONARD A. MARCUSSEN, AND LAWRENCE V. BROOKES.  /0/
..END :





ILLINOIS V. SOMERVILLE, 410 U.S. 458 


       ILLINOIS V. SOMERVILLE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 71-692.  ARGUED NOVEMBER 13, 1972-- DECIDED FEBRUARY
27,

           1973 


RESPONDENT WAS BROUGHT TO TRIAL UNDER AN INDICTMENT WHICH, IT
DEVELOPED BEFORE ANY EVIDENCE WAS PRESENTED, CONTAINED A DEFECT THAT
UNDER ILLINOIS LAW COULD NOT BE CURED BY AMENDMENT AND THAT ON APPEAL
COULD BE ASSERTED TO OVERTURN ANY JUDGMENT OF CONVICTION.  THE TRIAL
JUDGE DECLARED A MISTRIAL OVER RESPONDENT'S OBJECTION, FOLLOWING WHICH
RESPONDENT WAS REINDICTED, TRIED, AND CONVICTED.  HE THEREAFTER
PETITIONED FOR HABEAS CORPUS, WHICH WAS ULTIMATELY GRANTED ON THE
GROUND THAT, JEOPARDY HAVING ATTACHED WHEN THE JURY WAS INITIALLY
IMPANELED AND SWORN, THE SECOND TRIAL CONSTITUTED DOUBLE JEOPARDY. 
HELD:  UNDER THE CIRCUMSTANCES OF THIS CASE, THE TRIAL JUDGE'S ACTION
IN DECLARING A MISTRIAL WAS A RATIONAL DETERMINATION DESIGNED TO
IMPLEMENT A LEGITIMATE STATE POLICY, WITH NO SUGGESTION THAT THE POLICY
WAS MANIPULATED TO RESPONDENT'S PREJUDICE.  THE DECLARATION OF A
MISTRIAL WAS THEREFORE REQUIRED BY "MANIFEST NECESSITY" AND THE "ENDS
OF PUBLIC JUSTICE," AND THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT AS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH DID NOT
BAR RESPONDENT'S RETRIAL.  PP. 461-471. 

447 F.2D 733, REVERSED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, BLACKMUN, AND POWELL, JJ., JOINED.  WHITE, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN, JJ., JOINED,
POST, P. 471.  MARSHALL, J., FILED A DISSENTING OPINION, POST, P. 477. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

WE MUST HERE DECIDE WHETHER DECLARATION OF A MISTRIAL OVER THE
DEFENDANT'S OBJECTION, BECAUSE THE TRIAL COURT CONCLUDED THAT THE
INDICTMENT WAS INSUFFICIENT TO CHARGE A CRIME, NECESSARILY PREVENTS A
STATE FROM SUBSEQUENTLY TRYING THE DEFENDANT UNDER A VALID INDICTMENT. 
WE HOLD THAT THE MISTRIAL MET THE "MANIFEST NECESSITY" REQUIREMENT OF
OUR CASES, SINCE THE TRIAL COURT COULD REASONABLY HAVE CONCLUDED THAT
THE "ENDS OF PUBLIC JUSTICE" WOULD BE DEFEATED BY HAVING ALLOWED THE
TRIAL TO CONTINUE.  THEREFORE, THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT, MADE APPLICABLE TO THE STATE THROUGH THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT, BENTON V. MARYLAND, 395 U.S. 784(1969),
DID NOT BAR RETRIAL UNDER A VALID INDICTMENT. 

        I 

ON MARCH 19, 1964, RESPONDENT WAS INDICTED BY AN ILLINOIS GRAND JURY
FOR THE CRIME OF THEFT.  THE CASE WAS CALLED FOR TRIAL AND A JURY
IMPANELED AND SWORN ON NOVEMBER 1, 1965.  THE FOLLOWING DAY, BEFORE ANY
EVIDENCE HAD BEEN PRESENTED, THE PROSECUTING ATTORNEY REALIZED THAT THE
INDICTMENT WAS FATALLY DEFICIENT UNDER ILLINOIS LAW BECAUSE IT DID NOT
ALLEGE THAT RESPONDENT INTENDED TO PERMANENTLY DEPRIVE THE OWNER OF HIS
PROPERTY.  UNDER THE APPLICABLE ILLINOIS CRIMINAL STATUTE, SUCH INTENT
IS A NECESSARY ELEMENT OF THE CRIME OF THEFT, /1/  AND FAILURE TO
ALLEGE INTENT RENDERS THE INDICTMENT INSUFFICIENT TO CHARGE A CRIME. 
BUT UNDER THE ILLINOIS CONSTITUTION AT THAT TIME, /2/  AN INDICTMENT
WAS THE SOLE MEANS BY WHICH A CRIMINAL PROCEEDING SUCH AS THIS MIGHT BE
COMMENCED AGAINST A DEFENDANT.  ILLINOIS FURTHER PROVIDES THAT ONLY
FORMAL DEFECTS, OF WHICH THIS WAS NOT ONE, MAY BE CURED BY AMENDMENT. 
THE COMBINED OPERATION OF THESE RULES OF ILLINOIS PROCEDURE AND
SUBSTANTIVE LAW MEANT THAT THE DEFECT IN THE INDICTMENT WAS
"JURISDICTIONAL"; IT COULD NOT BE WAIVED BY THE DEFENDANT'S FAILURE TO
OBJECT, AND COULD BE ASSERTED ON APPEAL OR IN A POST-CONVICTION
PROCEEDING TO OVERTURN A FINAL JUDGMENT OF CONVICTION. 

FACED WITH THIS SITUATION, THE ILLINOIS TRIAL COURT CONCLUDED THAT
FURTHER PROCEEDINGS UNDER THIS DEFECTIVE INDICTMENT WOULD BE USELESS
AND GRANTED THE STATE'S MOTION FOR A MISTRIAL.  ON NOVEMBER 3, THE
GRAND JURY HANDED DOWN A SECOND INDICTMENT ALLEGING THE REQUISITE
INTENT.  RESPONDENT WAS ARRAIGNED TWO WEEKS AFTER THE FIRST TRIAL WAS
ABORTED, RAISED A CLAIM OF DOUBLE JEOPARDY WHICH WAS OVERRULED, AND THE
SECOND TRIAL COMMENCED SHORTLY THEREAFTER.  THE JURY RETURNED A VERDICT
OF GUILTY, SENTENCE WAS IMPOSED, AND THE ILLINOIS COURTS UPHELD THE
CONVICTION.  RESPONDENT THEN SOUGHT FEDERAL HABEAS CORPUS, ALLEGING
THAT THE CONVICTION CONSTITUTED DOUBLE JEOPARDY CONTRARY TO THE
PROHIBITION OF THE FIFTH AND FOURTEENTH AMENDMENTS.  THE SEVENTH
CIRCUIT AFFIRMED THE DENIAL OF HABEAS CORPUS PRIOR TO OUR DECISION IN
UNITED STATES V. JORN, 400 U.S. 470(1971).  THE RESPONDENT'S PETITION
FOR CERTIORARI WAS GRANTED, AND THE CASE REMANDED FOR RECONSIDERATION
IN LIGHT OF JORN AND DOWNUM V. UNITED STATES, 372 U.S. 734(1963).  ON
REMAND, THE SEVENTH CIRCUIT HELD THAT RESPONDENT'S PETITION FOR HABEAS
CORPUS SHOULD HAVE BEEN GRANTED BECAUSE, ALTHOUGH HE HAD NOT BEEN TRIED
AND ACQUITTED AS IN UNITED STATES V. BALL, 163 U.S. 662(1896), AND
BENTON V. MARYLAND, 395 U.S. 784(1969), JEOPARDY HAD ATTACHED WHEN THE
JURY WAS IMPANELED AND SWORN, AND A DECLARATION OF MISTRIAL OVER
RESPONDENT'S OBJECTION PRECLUDED A RETRIAL UNDER A VALID INDICTMENT. 
447 F.2D 733(1971).  FOR THE REASONS STATED BELOW, WE REVERSE THAT
JUDGMENT. 

        II 

THE FOUNTAINHEAD DECISION CONSTRUING THE DOUBLE JEOPARDY CLAUSE IN
THE CONTEXT OF A DECLARATION OF A MISTRIAL OVER A DEFENDANT'S OBJECTION
IS UNITED STATES V. PEREZ, 9 WHEAT.  579(1824).  MR. JUSTICE STORY,
WRITING FOR A UNANIMOUS COURT, SET FORTH THE STANDARDS FOR DETERMINING
WHETHER A RETRIAL, FOLLOWING A DECLARATION OF A MISTRIAL OVER A
DEFENDANT'S OBJECTION, CONSTITUTES DOUBLE JEOPARDY WITHIN THE MEANING
OF THE FIFTH AMENDMENT.  IN HOLDING THAT THE FAILURE OF THE JURY TO
AGREE ON A VERDICT OF EITHER ACQUITTAL OR CONVICTION DID NOT BAR
RETRIAL OF THE DEFENDANT, MR. JUSTICE STORY WROTE: 

     "WE THINK, THAT IN ALL CASES OF THIS NATURE, THE LAW HAS

  INVESTED COURTS OF JUSTICE WITH THE AUTHORITY TO DISCHARGE A JURY

  FROM GIVING ANY VERDICT, WHENEVER, IN THEIR OPINION, TAKING ALL

THE CIRCUMSTANCES INTO CONSIDERATION, THERE IS MANIFEST NECESSITY

  FOR THE ACT, OR THE ENDS OF PUBLIC JUSTICE WOULD OTHERWISE BE

  DEFEATED.  THEY ARE TO EXERCISE A SOUND DISCRETION ON THE

  SUBJECT, AND IT IS IMPOSSIBLE TO DEFINE ALL THE CIRCUMSTANCES,

  WHICH WOULD RENDER IT PROPER TO INTERFERE.  TO BE SURE, THE POWER

  OUGHT TO BE USED WITH THE GREATEST CAUTION, UNDER URGENT

  CIRCUMSTANCES, AND FOR VERY PLAIN AND OBVIOUS CAUSES; AND, IN

  CAPITAL CASES ESPECIALLY, COURTS SHOULD BE EXTREMELY CAREFUL HOW

  THEY INTERFERE WITH ANY OF THE CHANCES OF LIFE, IN FAVOUR OF THE

  PRISONER.  BUT, AFTER ALL, THEY HAVE THE RIGHT TO ORDER THE

DISCHARGE; AND THE SECURITY WHICH THE PUBLIC HAVE FOR THE

FAITHFUL, SOUND, AND CONSCIENTIOUS EXERCISE OF THIS DISCRETION,

  RESTS, IN THIS, AS IN OTHER CASES, UPON THE RESPONSIBILITY OF THE

  JUDGES, UNDER THEIR OATHS OF OFFICE."  ID., AT 580. 

THIS FORMULATION, CONSISTENTLY ADHERED TO BY THIS COURT IN
SUBSEQUENT DECISIONS, ABJURES THE APPLICATION OF ANY MECHANICAL FORMULA
BY WHICH TO JUDGE THE PROPRIETY OF DECLARING A MISTRIAL IN THE VARYING
AND OFTEN UNIQUE SITUATIONS ARISING DURING THE COURSE OF A CRIMINAL
TRIAL.  THE BROAD DISCRETION RESERVED TO THE TRIAL JUDGE IN SUCH
CIRCUMSTANCES HAS BEEN CONSISTENTLY REITERATED IN DECISIONS OF THIS
COURT.  IN WADE V. HUNTER, 336 U.S. 684(1949), THE COURT, IN
REAFFIRMING THIS FLEXIBLE STANDARD, WROTE: 

     "WE ARE ASKED TO ADOPT THE CORNERO (V. UNITED STATES, 48 F.2D

  69,) RULE UNDER WHICH PETITIONER CONTENDS THE ABSENCE OF

  WITNESSES CAN NEVER JUSTIFY DISCONTINUANCE OF A TRIAL.  SUCH A

  RIGID FORMULA IS INCONSISTENT WITH THE GUIDING PRINCIPLES OF THE

  PEREZ DECISION TO WHICH WE ADHERE.  THOSE PRINCIPLES COMMAND

  COURTS IN CONSIDERING WHETHER A TRIAL SHOULD BE TERMINATED

  WITHOUT JUDGMENT TO TAKE 'ALL CIRCUMSTANCES INTO ACCOUNT' AND

THEREBY FORBID THE MECHANICAL APPLICATION OF AN ABSTRACT

 FORMULA.  THE VALUE OF THE PEREZ PRINCIPLES THUS LIES IN THEIR

  CAPACITY FOR INFORMED APPLICATION UNDER WIDELY DIFFERENT

  CIRCUMSTANCES WITHOUT INJURY TO DEFENDANTS OR TO THE PUBLIC

  INTEREST."  ID., AT 691. 

SIMILARLY, IN GORI V. UNITED STATES, 367 U.S. 364 (1961), THE COURT
AGAIN UNDERSCORED THE BREADTH OF A TRIAL JUDGE'S DISCRETION, AND THE
REASONS THEREFOR, TO DECLARE A MISTRIAL. 

"WHERE, FOR REASONS DEEMED COMPELLING BY THE TRIAL JUDGE, WHO IS
BEST SITUATED INTELLIGENTLY TO MAKE SUCH A DECISION, THE ENDS OF
SUBSTANTIAL JUSTICE CANNOT BE ATTAINED WITHOUT DISCONTINUING THE TRIAL,
A MISTRIAL MAY BE DECLARED WITHOUT THE DEFENDANT'S CONSENT AND EVEN
OVER HIS OBJECTION, AND HE MAY BE RETRIED CONSISTENTLY WITH THE FIFTH
AMENDMENT."  ID., AT 368. 

IN REVIEWING THE PROPRIETY OF THE TRIAL JUDGE'S EXERCISE OF HIS
DISCRETION, THIS COURT, FOLLOWING THE COUNSEL OF MR. JUSTICE STORY, HAS
SCRUTINIZED THE ACTION TO DETERMINE WHETHER, IN THE CONTEXT OF THAT
PARTICULAR TRIAL, THE DECLARATION OF A MISTRIAL WAS DICTATED BY
"MANIFEST NECESSITY" OR THE "ENDS OF PUBLIC JUSTICE."  THE INTERESTS OF
THE PUBLIC IN SEEING THAT A CRIMINAL PROSECUTION PROCEED TO VERDICT,
EITHER OF ACQUITTAL OR CONVICTION, NEED NOT BE FORSAKEN BY THE
FORMULATION OR APPLICATION OF RIGID RULES THAT NECESSARILY PRECLUDE THE
VINDICATION OF THAT INTEREST.  THIS CONSIDERATION, WHETHER TERMED THE
"ENDS OF PUBLIC JUSTICE," UNITED STATES V. PEREZ, SUPRA, AT 580, OR,
MORE PRECISELY, "THE PUBLIC'S INTEREST IN FAIR TRIALS DESIGNED TO END
IN JUST JUDGMENTS."  WADE V. HUNTER, SUPRA, AT 689, HAS NOT BEEN
DISREGARDED BY THIS COURT. 

IN UNITED STATES V. PEREZ, SUPRA, AND LOGAN V. UNITED STATES, 144
U.S. 263(1892), THIS COURT HELD THAT "MANIFEST NECESSITY" JUSTIFIED THE
DISCHARGE OF JURIES UNABLE TO REACH VERDICTS, AND, THEREFORE, THE
DOUBLE JEOPARDY CLAUSE DID NOT BAR RETRIAL.  CF. KEERL V. MONTANA, 213
U.S. 135(1909); DREYER V. ILLINOIS, 187 U.S. 71(1902).  IN SIMMONS V.
UNITED STATES, 142 U.S. 148(1891), A TRIAL JUDGE DISMISSED THE JURY,
OVER DEFENDANT'S OBJECTION, BECAUSE ONE OF THE JURORS HAD BEEN
ACQUAINTED WITH THE DEFENDANT, AND, THEREFORE, WAS PROBABLY PREJUDICED
AGAINST THE GOVERNMENT; THIS COURT HELD THAT THE TRIAL JUDGE PROPERLY
EXERCISED HIS POWER "TO PREVENT THE DEFEAT OF THE ENDS OF PUBLIC
JUSTICE."  ID., AT 154.  IN THOMPSON V. UNITED STATES, 155 U.S.
271(1894), A MISTRIAL WAS DECLARED AFTER THE TRIAL JUDGE LEARNED THAT
ONE OF THE JURORS WAS DISQUALIFIED, HE HAVING BEEN A MEMBER OF THE
GRAND JURY THAT INDICTED THE DEFENDANT.  SIMILARLY, IN LOVATO V. NEW
MEXICO, 242 U.S. 199(1916), THE DEFENDANT DEMURRED TO THE INDICTMENT,
HIS DEMURRER WAS OVERRULED, AND A JURY SWORN.  THE DISTRICT ATTORNEY,
REALIZING THAT THE DEFENDANT HAD NOT PLEADED TO THE INDICTMENT AFTER
THE DEMURRER HAD BEEN OVERRULED, MOVED FOR THE DISCHARGE OF THE JURY
AND ARRAIGNMENT OF THE DEFENDANT FOR PLEADING; THE JURY WAS DISCHARGED,
THE DEFENDANT PLEADED NOT GUILTY, THE SAME JURY WAS AGAIN IMPANELED,
AND A VERDICT OF GUILTY RENDERED.  IN BOTH OF THOSE CASES THIS COURT
HELD THAT THE DOUBLE JEOPARDY CLAUSE DID NOT BAR REPROSECUTION. 

WHILE VIRTUALLY ALL OF THE CASES TURN ON THE PARTICULAR FACTS AND
THUS ESCAPE MEANINGFUL CATEGORIZATION, SEE GORI V. UNITED STATES,
SUPRA; WADE V. HUNTER, SUPRA, IT IS POSSIBLE TO DISTILL FROM THEM A
GENERAL APPROACH, PREMISED ON THE "PUBLIC JUSTICE" POLICY ENUNCIATED IN
UNITED STATES V. PEREZ, TO SITUATIONS SUCH AS THAT PRESENTED BY THIS
CASE.  A TRIAL JUDGE PROPERLY EXERCISES HIS DISCRETION TO DECLARE A
MISTRIAL IF AN IMPARTIAL VERDICT CANNOT BE REACHED, OR IF A VERDICT OF
CONVICTION COULD BE REACHED BUT WOULD HAVE TO BE REVERSED ON APPEAL DUE
TO AN OBVIOUS PROCEDURAL ERROR IN THE TRIAL.  IF AN ERROR WOULD MAKE
REVERSAL ON APPEAL A CERTAINTY, IT WOULD NOT SERVE "THE ENDS OF PUBLIC
JUSTICE" TO REQUIRE THAT THE GOVERNMENT PROCEED WITH ITS PROOF WHEN, IF
IT SUCCEEDED BEFORE THE JURY, IT WOULD AUTOMATICALLY BE STRIPPED OF
THAT SUCCESS BY AN APPELLATE COURT.  THIS WAS SUBSTANTIALLY THE
SITUATION IN BOTH THOMPSON V. UNITED STATES, SUPRA, AND LOVATO V. NEW
MEXICO, SUPRA.  WHILE THE DECLARATION OF A MISTRIAL ON THE BASIS OF A
RULE OR A DEFECTIVE PROCEDURE THAT WOULD LEND ITSELF TO PROSECUTORIAL
MANIPULATION WOULD INVOLVE AN ENTIRELY DIFFERENT QUESTION, CF. DOWNUM
V. UNITED STATES, SUPRA, SUCH WAS NOT THE SITUATION IN THE ABOVE CASES
OR IN THE INSTANT CASE. 

IN DOWNUM V. UNITED STATES, THE DEFENDANT WAS CHARGED WITH SIX
COUNTS OF MAIL THEFT, AND FORGING AND UTTERING STOLEN CHECKS.  A JURY
WAS SELECTED AND SWORN IN THE MORNING, AND INSTRUCTED TO RETURN THAT
AFTERNOON.  WHEN THE JURY RETURNED, THE GOVERNMENT MOVED FOR THE
DISCHARGE OF THE JURY ON THE GROUND THAT A KEY PROSECUTION WITNESS, FOR
TWO OF THE SIX COUNTS AGAINST DEFENDANT, WAS NOT PRESENT.  THE
PROSECUTION KNEW, PRIOR TO THE SELECTION AND SWEARING OF THE JURY, THAT
THIS WITNESS COULD NOT BE FOUND AND HAD NOT BEEN SERVED WITH A
SUBPOENA.  THE TRIAL JUDGE DISCHARGED THE JURY OVER THE DEFENDANT'S
MOTIONS TO DISMISS TWO COUNTS FOR FAILURE TO PROSECUTE AND TO CONTINUE
THE OTHER FOUR.  THIS COURT, IN REVERSING THE CONVICTIONS ON THE GROUND
OF DOUBLE JEOPARDY, EMPHASIZED THAT "(EACH CASE MUST TURN ON ITS
FACTS," 372 U.S., AT 737, AND HELD THAT THE SECOND PROSECUTION
CONSTITUTED DOUBLE JEOPARDY, BECAUSE THE ABSENCE OF THE WITNESS AND THE
REASON THEREFOR DID NOT THERE JUSTIFY, IN TERMS OF "MANIFEST
NECESSITY," THE DECLARATION OF A MISTRIAL. 

IN UNITED STATES V. JORN, SUPRA, THE GOVERNMENT CALLED A TAXPAYER
WITNESS IN A PROSECUTION FOR WILLFULLY ASSISTING IN THE PREPARATION OF
FRAUDULENT INCOME TAX RETURNS.  PRIOR TO HIS TESTIMONY, DEFENSE COUNSEL
SUGGESTED HE BE WARNED OF HIS CONSTITUTIONAL RIGHT AGAINST COMPULSORY
SELF-INCRIMINATION.  THE TRIAL JUDGE WARNED HIM OF HIS RIGHTS, AND THE
WITNESS STATED THAT HE WAS WILLING TO TESTIFY AND THAT THE INTERNAL
REVENUE SERVICE AGENT WHO FIRST CONTACTED HIM WARNED HIM OF HIS
RIGHTS.  THE TRIAL JUDGE, HOWEVER, DID NOT BELIEVE THE WITNESS'
DECLARATION THAT THE IRS HAD SO WARNED HIM, AND REFUSED TO ALLOW HIM TO
TESTIFY UNTIL AFTER HE HAD CONSULTED WITH AN ATTORNEY.  AFTER LEARNING
FROM THE GOVERNMENT THAT THE REMAINING FOUR WITNESSES WERE "SIMILARLY
SITUATED,"  AND AFTER SURMISING THAT THEY, TOO, HAD NOT BEEN PROPERLY
INFORMED OF THEIR RIGHTS, THE TRIAL JUDGE DECLARED A MISTRIAL TO GIVE
THE WITNESSES THE OPPORTUNITY TO CONSULT WITH ATTORNEYS.  IN SUSTAINING
A PLEA IN BAR OF DOUBLE JEOPARDY TO AN ATTEMPTED SECOND TRIAL OF THE
DEFENDANT, THE PLURALITY OPINION OF THE COURT, EMPHASIZING THE
IMPORTANCE TO THE DEFENDANT OF PROCEEDING BEFORE THE FIRST JURY SWORN,
CONCLUDED:     "IT IS APPARENT FROM THE RECORD THAT NO CONSIDERATION
WAS GIVEN TO THE POSSIBILITY OF A TRIAL CONTINUANCE; INDEED, THE TRIAL
JUDGE ACTED SO ABRUPTLY IN DISCHARGING THE JURY THAT, HAD THE
PROSECUTOR BEEN DISPOSED TO SUGGEST A CONTINUANCE, OR THE DEFENDANT TO
OBJECT TO THE DISCHARGE OF THE JURY, THERE WOULD HAVE BEEN NO
OPPORTUNITY TO DO SO.  WHEN ONE EXAMINES THE CIRCUMSTANCES SURROUNDING
THE DISCHARGE OF THIS JURY, IT SEEMS ABUNDANTLY APPARENT THAT THE TRIAL
JUDGE MADE NO EFFORT TO EXERCISE A SOUND DISCRETION TO ASSURE THAT,
TAKING ALL THE CIRCUMSTANCES INTO ACCOUNT, THERE WAS A MANIFEST
NECESSITY FOR THE SUA SPONTE DECLARATION OF THIS MISTRIAL.  UNITED
STATES V. PEREZ, 9 WHEAT., AT 580.  THEREFORE, WE MUST CONCLUDE THAT IN
THE CIRCUMSTANCES OF THIS CASE, APPELLEE'S REPROSECUTION WOULD VIOLATE
THE DOUBLE JEOPARDY PROVISION OF THE FIFTH AMENDMENT."  400 U.S., AT
487. 

        III 

RESPONDENT ADVANCES TWO ARGUMENTS TO SUPPORT THE CONCLUSION THAT THE
DOUBLE JEOPARDY CLAUSE PRECLUDED THE SECOND TRIAL IN THE INSTANT CASE. 
THE FIRST IS THAT SINCE UNITED STATES V. BALL, 163 U.S. 662(1896), HELD
THAT JEOPARDY OBTAINED EVEN THOUGH THE INDICTMENT UPON WHICH THE
DEFENDANT WAS FIRST ACQUITTED HAD BEEN DEFECTIVE, AND SINCE DOWNUM V.
UNITED STATES, SUPRA, HELD THAT JEOPARDY "ATTACHES" WHEN A JURY HAS
BEEN SELECTED AND SWORN, THE DOUBLE JEOPARDY CLAUSE PRECLUDED THE STATE
FROM INSTITUTING THE SECOND PROCEEDING THAT RESULTED IN RESPONDENT'S
CONVICTION.  ALTERNATIVELY, RESPONDENT ARGUES THAT OUR DECISION IN
UNITED STATES V. JORN, SUPRA, WHICH RESPONDENT INTERPRETS AS NARROWLY
LIMITING THE CIRCUMSTANCES IN WHICH A MISTRIAL IS MANIFESTLY NECESSARY,
REQUIRES AFFIRMANCE.  EMPHASIZING THE "'VALUED RIGHT TO HAVE HIS TRIAL
COMPLETED BY A PARTICULAR TRIBUNAL,'" UNITED STATES V. JORN, SUPRA, AT
484, QUOTING WADE V. HUNTER, 336 U.S., AT 689, RESPONDENT CONTENDS THAT
THE CIRCUMSTANCES DID NOT JUSTIFY DEPRIVING HIM OF THAT RIGHT. 

RESPONDENT'S FIRST CONTENTION IS PRECISELY THE TYPE OF RIGID,
MECHANICAL RULE WHICH THE COURT HAD ESCHEWED SINCE THE SEMINAL DECISION
IN PEREZ.  THE MAJOR PREMISE OF THE SYLLOGISM-- THAT TRIAL ON A
DEFECTIVE INDICTMENT PRECLUDES RETRIAL-- IS NOT APPLICABLE TO THE
INSTANT CASE BECAUSE IT OVERLOOKS A CRUCIAL ELEMENT OF THE COURT'S
REASONING IN UNITED STATES V. BALL, SUPRA.  THERE, THREE MEN WERE
INDICTED AND TRIED FOR MURDER; TWO WERE CONVICTED BY A JURY AND ONE
ACQUITTED.  THIS COURT REVERSED THE CONVICTIONS ON THE GROUND THAT THE
INDICTMENT WAS FATALLY DEFICIENT IN FAILING TO ALLEGE THAT THE VICTIM
DIED WITHIN A YEAR AND DAY OF THE ASSAULT.  BALL V. UNITED STATES, 140
U.S. (118(1891).  A PROPER INDICTMENT WAS RETURNED AND THE GOVERNMENT
RETRIED ALL THREE OF THE ORIGINAL DEFENDANTS; THAT TRIAL RESULTED IN
THE CONVICTION OF ALL.  THIS COURT REVERSED THE CONVICTION OF THE ONE
DEFENDANT WHO ORIGINALLY HAD BEEN ACQUITTED, SUSTAINING HIS PLEA OF
DOUBLE JEOPARDY.  BUT THE COURT WAS OBVIOUSLY AND PROPERLY INFLUENCED
BY THE FACT THAT THE FIRST TRIAL HAD PROCEEDED TO VERDICT.  THIS FOCUS
OF THE COURT IS REFLECTED IN THE OPINION: 

"(WE ARE UNABLE TO RESIST THE CONCLUSION THAT A GENERAL VERDICT OF
ACQUITTAL UPON THE ISSUE OF NOT GUILTY TO AN INDICTMENT UNDERTAKING TO
CHARGE MURDER, AND NOT OBJECTED TO BEFORE THE VERDICT AS INSUFFICIENT
IN THAT RESPECT, IS A BAR TO A SECOND INDICTMENT FOR THE SAME KILLING  

     " . . . (THE ACCUSED, WHETHER CONVICTED OR ACQUITTED, IS

  EQUALLY PUT IN JEOPARDY AT THE FIRST TRIAL . . . "  163 U.S., AT

  669. 

IN DOWNUM, THE COURT HELD, AS RESPONDENT ARGUES, THAT JEOPARDY
"ATTACHED" WHEN THE FIRST JURY WAS SELECTED AND SWORN.  BUT IN CASES IN
WHICH A MISTRIAL HAS BEEN DECLARED PRIOR TO VERDICT, THE CONCLUSION
THAT JEOPARDY HAS ATTACHED BEGINS, RATHER THAN ENDS, THE INQUIRY AS TO
WHETHER THE DOUBLE JEOPARDY CLAUSE BARS RETRIAL.  THAT, INDEED, WAS
PRECISELY THE RATIONALE OF PEREZ AND SUBSEQUENT CASES.  ONLY IF
JEOPARDY HAS ATTACHED IS A COURT CALLED UPON TO DETERMINE WHETHER THE
DECLARATION OF A MISTRIAL WAS REQUIRED BY "MANIFEST NECESSITY" OR THE
"ENDS OF PUBLIC JUSTICE." 

WE BELIEVE THAT IN LIGHT OF THE STATE'S ESTABLISHED RULES OF
CRIMINAL PROCEDURE, THE TRIAL JUDGE'S DECLARATION OF A MISTRIAL WAS NOT
AN ABUSE OF DISCRETION.  SINCE THIS COURT'S DECISION IN BENTON V.
MARYLAND, SUPRA, FEDERAL COURTS WILL BE CONFRONTED WITH SUCH CLAIMS
THAT ARISE IN LARGE MEASURE FROM THE OFTEN DIVERSE PROCEDURAL RULES
EXISTING IN THE 50 STATES.  FEDERAL COURTS SHOULD NOT BE QUICK TO
CONCLUDE THAT SIMPLY BECAUSE A STATE PROCEDURE DOES NOT CONFORM TO THE
CORRESPONDING FEDERAL STATUTE OR RULE, IT DOES NOT SERVE A LEGITIMATE
STATE POLICY.  LAST TERM, RECOGNIZING THIS FACT, WE DISMISSED A WRIT OF
CERTIORARI AS IMPROVIDENTLY GRANTED IN A CASE INVOLVING A CLAIM OF
DOUBLE JEOPARDY STEMMING FROM THE DISMISSAL OF AN INDICTMENT UNDER THE
"RULES OF CRIMINAL PLEADING PECULIAR TO" AN INDIVIDUAL STATE FOLLOWED
BY A RETRIAL UNDER A PROPER INDICTMENT.  DUNCAN V. TENNESSEE, 405 U.S.
127(1972). 

IN THE INSTANT CASE, THE TRIAL JUDGE TERMINATED THE PROCEEDING
BECAUSE A DEFECT WAS FOUND TO EXIST IN THE INDICTMENT THAT WAS, AS A
MATTER OF ILLINOIS LAW, NOT CURABLE BY AMENDMENT.  THE ILLINOIS COURTS
HAVE HELD THAT EVEN AFTER A JUDGMENT OF CONVICTION HAS BECOME FINAL,
THE DEFENDANT MAY BE RELEASED ON HABEAS CORPUS, BECAUSE THE DEFECT IN
THE INDICTMENT DEPRIVES THE TRIAL COURT OF "JURISDICTION."  THE RULE
PROHIBITING THE AMENDMENT OF ALL BUT FORMAL DEFECTS IN INDICTMENTS IS
DESIGNED TO IMPLEMENT THE STATE'S POLICY OF PRESERVING THE RIGHT OF
EACH DEFENDANT TO INSIST THAT A CRIMINAL PROSECUTION AGAINST HIM BE
COMMENCED BY THE ACTION OF A GRAND JURY.  THE TRIAL JUDGE WAS FACED
WITH A SITUATION SIMILAR TO THOSE IN SIMMONS, LOVATO, AND THOMPSON, IN
WHICH A PROCEDURAL DEFECT MIGHT OR WOULD PRECLUDE THE PUBLIC FROM
EITHER OBTAINING AN IMPARTIAL VERDICT OR KEEPING A VERDICT OF
CONVICTION IF ITS EVIDENCE PERSUADED THE JURY.  IF A MISTRIAL WERE
CONSTITUTIONALLY UNAVAILABLE IN SITUATIONS SUCH AS THIS, THE STATE'S
POLICY COULD NOT BE IMPLEMENTED BY CONDUCTING A SECOND TRIAL AFTER
VERDICT AND REVERSAL ON APPEAL, THUS WASTING TIME, ENERGY, AND MONEY
FOR ALL CONCERNED.  HERE, THE TRIAL JUDGE'S ACTION WAS A RATIONAL
DETERMINATION DESIGNED TO IMPLEMENT A LEGITIMATE STATE POLICY, WITH NO
SUGGESTION THAT THE IMPLEMENTATION OF THAT POLICY IN THIS MANNER COULD
BE MANIPULATED SO AS TO PREJUDICE THE DEFENDANT.  THIS SITUATION IS
THUS UNLIKE DOWNUM, WHERE THE MISTRIAL ENTAILED NOT ONLY A DELAY FOR
THE DEFENDANT, BUT ALSO OPERATED AS A POST-JEOPARDY CONTINUANCE TO
ALLOW THE PROSECUTION AN OPPORTUNITY TO STRENGTHEN ITS CASE.  HERE, THE
DELAY WAS MINIMAL, AND THE MISTRIAL WAS, UNDER ILLINOIS LAW, THE ONLY
WAY IN WHICH A DEFECT IN THE INDICTMENT COULD BE CORRECTED.  GIVEN THE
ESTABLISHED STANDARD OF DISCRETION SET FORTH IN PEREZ, GORI, AND
HUNTER, WE CANNOT SAY THAT THE DECLARATION OF A MISTRIAL WAS NOT
REQUIRED BY "MANIFEST NECESSITY" OR THE "ENDS OF PUBLIC JUSTICE." 

OUR DECISION IN JORN, RELIED UPON BY THE COURT BELOW AND RESPONDENT,
DOES NOT SUPPORT THE OPPOSITE CONCLUSION.  WHILE IT IS POSSIBLE TO
EXCISE VARIOUS PORTIONS OF THE PLURALITY OPINION TO SUPPORT THE RESULT
REACHED BELOW, DIVORCING THE LANGUAGE FROM THE FACTS OF THE CASE SERVES
ONLY TO DISTORT ITS HOLDINGS.  THAT OPINION DEALT WITH ACTION BY A
TRIAL JUDGE THAT CAN FAIRLY BE DESCRIBED AS ERRATIC.  THE COURT HELD
THAT THE LACK OF APPARENT HARM TO THE DEFENDANT FROM THE DECLARATION OF
A MISTRIAL DID NOT ITSELF JUSTIFY THE MISTRIAL, AND CONCLUDED THAT
THERE WAS NO "MANIFEST NECESSITY" FOR THE MISTRIAL, AS OPPOSED TO LESS
DRASTIC ALTERNATIVES.  THE COURT EMPHASIZED THAT THE ABSENCE OF ANY
MANIFEST NEED FOR THE MISTRIAL HAD DEPRIVED THE DEFENDANT OF HIS RIGHT
TO PROCEED BEFORE THE FIRST JURY, BUT IT DID NOT HOLD THAT THAT RIGHT
MAY NEVER BE FORCED TO YIELD, AS IN THIS CASE, TO "THE PUBLIC'S
INTEREST IN FAIR TRIALS DESIGNED TO END IN JUST JUDGMENTS."  THE
COURT'S OPINION IN JORN IS REPLETE WITH APPROVING REFERENCES TO WADE V.
HUNTER, SUPRA, WHICH LATTER CASE STATED: 

"THE DOUBLE-JEOPARDY PROVISION OF THE FIFTH AMENDMENT, HOWEVER, DOES
NOT MEAN THAT EVERY TIME A DEFENDANT IS PUT TO TRIAL BEFORE A COMPETENT
TRIBUNAL HE IS ENTITLED TO GO FREE IF THE TRIAL FAILS TO END IN A FINAL
JUDGMENT.  SUCH A RULE WOULD CREATE AN INSUPERABLE OBSTACLE TO THE
ADMINISTRATION OF JUSTICE IN MANY CASES IN WHICH THERE IS NO SEMBLANCE
OF THE TYPE OF OPPRESSIVE PRACTICES AT WHICH THE DOUBLE-JEOPARDY
PROHIBITION IS AIMED.  THERE MAY BE UNFORESEEABLE CIRCUMSTANCES THAT
ARISE DURING A TRIAL MAKING ITS COMPLETION IMPOSSIBLE, SUCH AS THE
FAILURE OF A JURY TO AGREE ON A VERDICT.  IN SUCH EVENT THE PURPOSE OF
LAW TO PROTECT SOCIETY FROM THOSE GUILTY OF CRIMES FREQUENTLY WOULD BE
FRUSTRATED BY DENYING COURTS POWER TO PUT THE DEFENDANT TO TRIAL
AGAIN.  AND THERE HAVE BEEN INSTANCES WHERE A TRIAL JUDGE HAS
DISCOVERED FACTS DURING A TRIAL WHICH INDICATED THAT ONE OR MORE
MEMBERS OF THE JURY MIGHT BE BIASED AGAINST THE GOVERNMENT OR THE
DEFENDANT.  IT IS SETTLED THAT THE DUTY OF THE JUDGE IN THIS EVENT IS
TO DISCHARGE THE JURY AND DIRECT A RETRIAL.  WHAT HAS BEEN SAID IS
ENOUGH TO SHOW THAT A DEFENDANT'S VALUED RIGHT TO HAVE HIS TRIAL
COMPLETED BY A PARTICULAR TRIBUNAL MUST IN SOME INSTANCES BE
SUBORDINATED TO THE PUBLIC'S INTEREST IN FAIR TRIALS DESIGNED TO END IN
JUST JUDGMENTS."  WADE V. HUNTER, 336 U.S., AT 688-689. 

THE DETERMINATION BY THE TRIAL COURT TO ABORT A CRIMINAL PROCEEDING
WHERE JEOPARDY HAS ATTACHED IS NOT ONE TO BE LIGHTLY UNDERTAKEN, SINCE
THE INTEREST OF THE DEFENDANT IN HAVING HIS FATE DETERMINED BY THE JURY
FIRST IMPANELED IS ITSELF A WEIGHTY ONE.  UNITED STATES V. JORN, SUPRA.
NOR WILL THE LACK OF DEMONSTRABLE ADDITIONAL PREJUDICE PRECLUDE THE
DEFENDANT'S INVOCATION OF THE DOUBLE JEOPARDY BAR IN THE ABSENCE OF
SOME IMPORTANT COUNTERVAILING INTEREST OF PROPER JUDICIAL
ADMINISTRATION.  IBID.  BUT WHERE THE DECLARATION OF A MISTRIAL
IMPLEMENTS A REASONABLE STATE POLICY AND ABORTS A PROCEEDING THAT AT
BEST WOULD HAVE PRODUCED A VERDICT THAT COULD HAVE BEEN UPSET AT WILL
BY ONE OF THE PARTIES, THE DEFENDANT'S INTEREST IN PROCEEDING TO
VERDICT IS OUTWEIGHED BY THE COMPETING AND EQUALLY LEGITIMATE DEMAND
FOR PUBLIC JUSTICE.  WADE V. HUNTER, SUPRA.

              REVERSED. 

/1/  ILL. REV. STAT., C. 38, SEC. 16-1(D)(1)(1963). 

/2/  SEE CONSTITUTION OF ILLINOIS, ART. II, SEC. 8 (1967).  WHEN THE
STATE CONSTITUTION WAS AMENDED IN 1970, THIS PROVISION WAS RETAINED AS
THE FIRST PARAGRAPH OF ART. I, SEC. 7. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

FOR THE PURPOSES OF THE DOUBLE JEOPARDY CLAUSE, JEOPARDY ATTACHES
WHEN A CRIMINAL TRIAL COMMENCES BEFORE JUDGE OR JURY, UNITED STATES V.
JORN, 400 U.S. 470, 479-480(1971); GREEN V. UNITED STATES, 355 U.S.
184, 188(1957); WADE V. HUNTER, 336 U.S. 684, 688(1949), AND THIS POINT
HAS ARRIVED WHEN A JURY HAS BEEN SELECTED AND SWORN, EVEN THOUGH NO
EVIDENCE HAS BEEN TAKEN.  DOWNUM V. UNITED STATES, 372 U.S. 734(1963). 
CLEARLY, SOMERVILLE WAS PLACED IN JEOPARDY AT HIS FIRST TRIAL DESPITE
THE FACT THAT THE INDICTMENT AGAINST HIM WAS DEFECTIVE UNDER ILLINOIS
LAW.  BENTON V. MARYLAND, 395 U.S. 784, 796-797(1969); UNITED STATES V.
BALL, 163 U.S. 662(1896).  THE QUESTION REMAINS, HOWEVER, WHETHER THE
FACTS OF THIS CASE PRESENT ONE OF THOSE CIRCUMSTANCES WHERE A TRIAL,
ONCE BEGUN, MAY BE ABORTED OVER THE DEFENDANT'S OBJECTION AND THE
DEFENDANT RETRIED WITHOUT TWICE BEING PLACED IN JEOPARDY CONTRARY TO
THE CONSTITUTION. 

THE COURT HAS FREQUENTLY ADDRESSED ITSELF TO THE GENERAL PROBLEM OF
MISTRIALS AND THE DOUBLE JEOPARDY CLAUSE, MOST RECENTLY IN UNITED
STATES V. JORN, SUPRA.  WE HAVE ABJURED MECHANICAL, PER SE RULES AND
HAVE PREFERRED TO RELY UPON THE APPROACH FIRST ANNOUNCED IN UNITED
STATES V. PEREZ, 9 WHEAT.  579(1824).  UNDER THE PEREZ ANALYSIS, A
TRIAL COURT HAS AUTHORITY TO DISCHARGE A JURY PRIOR TO VERDICT, AND THE
DOUBLE JEOPARDY CLAUSE WILL NOT PREVENT RETRIAL, ONLY IF THE TRIAL
COURT TAKES "ALL THE CIRCUMSTANCES INTO CONSIDERATION" AND IN ITS
"SOUND DISCRETION" DETERMINES THAT "THERE IS A MANIFEST NECESSITY FOR
THE ACT, OR THE ENDS OF PUBLIC JUSTICE WOULD OTHERWISE BE DEFEATED." 
ID., AT 580.  SEE ALSO UNITED STATES V. JORN, SUPRA, AT 480-481
(OPINION OF HARLAN, J.); ID., AT 492 (STEWART, J., DISSENTING); GORI V.
UNITED STATES, 367 U.S. 364, 367-369(1961); ID., AT 370-373 (DOUGLAS,
J., DISSENTING); DOWNUM V. UNITED STATES, SUPRA, AT 735-736, ID., AT
740 (CLARK, J., DISSENTING).  DESPITE THE GENERALITY OF THE PEREZ
STANDARD, SOME GUIDELINES HAVE EVOLVED FROM PAST CASES, AS THIS COURT
HAS REVIEWED THE EXERCISE OF TRIAL COURT DISCRETION IN A VARIETY OF
CIRCUMSTANCES. 

UNITED STATES V. JORN, SUPRA, AND DOWNUM V. UNITED STATES, SUPRA,
FOR EXAMPLE, MAKE IT ABUNDANTLY CLEAR THAT TRIAL COURTS SHOULD HAVE
CONSTANTLY IN MIND THE PURPOSES OF THE DOUBLE JEOPARDY CLAUSE TO
PROTECT THE DEFENDANT FROM CONTINUED EXPOSURE TO EMBARRASSMENT,
ANXIETY, EXPENSE, AND RESTRICTIONS ON HIS LIBERTY, AS WELL AS TO
PRESERVE HIS "'VALUED RIGHT TO HAVE HIS TRIAL COMPLETED BY A PARTICULAR
TRIBUNAL.'"  UNITED STATES V. JORN, SUPRA, AT 484, QUOTING FROM WADE V.
HUNTER, 336 U.S., AT 689.     "(IN THE FINAL ANALYSIS, THE JUDGE MUST
ALWAYS TEMPER THE DECISION WHETHER OR NOT TO ABORT THE TRIAL BY
CONSIDERING THE IMPORTANCE TO THE DEFENDANT OF BEING ABLE, ONCE AND FOR
ALL, TO CONCLUDE HIS CONFRONTATION WITH SOCIETY THROUGH THE VERDICT OF
A TRIBUNAL HE MIGHT BELIEVE TO BE FAVORABLY DISPOSED TO HIS FATE." 
UNITED STATES V. JORN, SUPRA, AT 486.  IT WAS IN LIGHT OF THIS INTEREST
THAT THE COURT IN DOWNUM REVERSED A CONVICTION ON DOUBLE JEOPARDY
GROUNDS WHERE A MISTRIAL WAS DECLARED TO PERMIT FURTHER EFFORTS TO
SECURE THE ATTENDANCE OF A KEY PROSECUTION WITNESS WHO SHOULD HAVE
BEEN, BUT WAS NOT, SUBPOENAED.  ALTHOUGH NO PROSECUTORIAL MISCONDUCT
OTHER THAN MERE OVERSIGHT AND MISTAKE WAS CLAIMED OR PROVED, THE
POLICIES OF THE DOUBLE JEOPARDY CLAUSE, AND THE INTEREST OF THE
DEFENDANT IN TAKING HIS CASE TO THE JURY THAT HE HAD JUST ACCEPTED,
WERE SUFFICIENT TO RAISE THE DOUBLE JEOPARDY BARRIER TO A SECOND
TRIAL. 

SIMILARLY, IN JORN, A TRIAL WAS TERMINATED WHEN THE TRIAL JUDGE, SUA
SPONTE AND MISTAKENLY, DECLARED A MISTRIAL, APPARENTLY TO PROTECT
NONPARTY WITNESSES FROM THE POSSIBILITY OF SELF-INCRIMINATION.  THERE
WAS NO SHOWING OF INTENT BY THE PROSECUTOR OR THE JUDGE TO HARASS THE
DEFENDANT OR TO ENHANCE CHANCES OF CONVICTION AT A SECOND TRIAL; THE
DEFENDANT WAS GIVEN A COMPLETE PREVIEW OF THE GOVERNMENT'S CASE, AND NO
SPECIFIC PREJUDICE TO THE DEFENSE AT A SECOND TRIAL WAS SHOWN.  NOTING
THAT THE COURTS "MUST BEAR IN MIND THE POTENTIAL RISKS OF ABUSE BY THE
DEFENDANT OF SOCIETY'S UNWILLINGNESS TO UNNECESSARILY SUBJECT HIM TO
REPEATED PROSECUTIONS," 400 U.S., AT 486, THIS COURT HELD THAT THE
DEFENDANT'S INTEREST IN SUBMITTING HIS CASE TO THE INITIAL JURY WAS
ITSELF SUFFICIENT TO INVOKE THE DOUBLE JEOPARDY CLAUSE AND, AS IN
DOWNUM, TO OVERRIDE THE GOVERNMENT'S CONCERN WITH ENFORCING THE
CRIMINAL LAWS BY HAVING ANOTHER CHANCE TO TRY THE DEFENDANT FOR THE
CRIME WITH WHICH HE WAS CHARGED.  IN NEITHER CASE WAS THERE "MANIFEST
NECESSITY" FOR A MISTRIAL AND A DOUBLE TRIAL OF THE DEFENDANT. 

VERY SIMILAR CONSIDERATIONS GOVERN THIS CASE.  SOMERVILLE ASSERTS A
RIGHT TO BUT ONE TRIAL AND TO A VERDICT BY THE INITIAL JURY.  A
MISTRIAL WAS DIRECTED AT THE INSTANCE OF THE STATE, OVER SOMERVILLE'S
OBJECTION, AND WAS OCCASIONED BY OFFICIAL ERROR IN DRAFTING THE
INDICTMENT-- ERROR UNACCOMPANIED BY BAD FAITH, OVERREACHING, OR
SPECIFIC PREJUDICE TO THE DEFENSE AT A LATER TRIAL.  THE STATE MAY NO
MORE TRY THE DEFENDANT A SECOND TIME IN THESE CIRCUMSTANCES THAN COULD
THE UNITED STATES IN DOWNUM AND JORN.  ALTHOUGH THE EXACT EXTENT OF THE
EMOTIONAL AND PHYSICAL HARM SUFFERED BY SOMERVILLE DURING THE PERIOD
BETWEEN HIS FIRST AND SECOND TRIAL IS OPEN TO DEBATE, IT CANNOT BE
GAINSAID THAT SOMERVILLE LOST "HIS OPTION TO GO TO THE FIRST JURY AND,
PERHAPS, END THE DISPUTE THEN AND THERE WITH AN ACQUITTAL.  UNITED
STATES V. JORN, 400 U.S., AT 484.  DOWNUM AND JORN, OVER SERIOUS
DISSENT, REJECTED THE VIEW THAT THE DOUBLE JEOPARDY CLAUSE PROTECTS
ONLY AGAINST THOSE MISTRIALS THAT LEND THEMSELVES TO PROSECUTORIAL
MANIPULATION AND UNDERWROTE THE INDEPENDENT RIGHT OF A DEFENDANT IN A
CRIMINAL CASE TO HAVE THE VERDICT OF THE INITIAL JURY.  BOTH CASES MADE
IT QUITE CLEAR THAT THE DISCRETION OF THE TRIAL COURT TO DECLARE
MISTRIALS IS REVIEWABLE AND THAT THE DEFENDANT'S RIGHT TO A VERDICT BY
HIS FIRST JURY IS NOT TO BE OVERRIDDEN EXCEPT FOR "MANIFEST
NECESSITY."  THERE WAS NOT, IN THIS CASE ANY MORE THAN IN DOWNUM AND
JORN, "MANIFEST NECESSITY" FOR THE LOSS OF THAT RIGHT. 

THE MAJORITY RECOGNIZES THAT "THE INTEREST OF THE DEFENDANT IN
HAVING HIS FATE DETERMINED BY THE JURY FIRST IMPANELED IS ITSELF A
WEIGHTY ONE," BUT FINDS THAT INTEREST OUTWEIGHED BY THE STATE'S DESIRE
TO AVOID "CONDUCTING A SECOND TRIAL AFTER VERDICT AND REVERSAL ON
APPEAL (ON THE BASIS OF A DEFECTIVE INDICTMENT), THUS WASTING TIME,
ENERGY, AND MONEY FOR ALL CONCERNED."  THE MAJORITY FINDS PARAMOUNT THE
INTEREST OF THE STATE IN "KEEPING A VERDICT OF CONVICTION IF ITS
EVIDENCE PERSUADED THE JURY."  SUCH ANALYSIS, HOWEVER, COMPLETELY
IGNORES THE POSSIBILITY THAT THE DEFENDANT MIGHT BE ACQUITTED BY THE
INITIAL JURY.  IT IS, AFTER ALL, THAT POSSIBILITY-- THE CHANCE TO "END
THE DISPUTE THEN AND THERE WITH AN ACQUITTAL," UNITED STATES V. JORN,
SUPRA, AT 484-- THAT MAKES THE RIGHT TO A TRIAL BEFORE A PARTICULAR
TRIBUNAL OF IMPORTANCE TO A DEFENDANT.  IN ADDITION, THE MAJORITY'S
BALANCING GIVES TOO LITTLE WEIGHT TO THE FUNDAMENTAL PLACE OF THE
DOUBLE JEOPARDY CLAUSE, AND THE PURPOSES WHICH IT SEEKS TO SERVE, IN
"THE FRAMEWORK OF PROCEDURAL PROTECTIONS WHICH THE CONSTITUTION
ESTABLISHES FOR THE CONDUCT OF A CRIMINAL TRIAL."  ID., AT 479. 

APPARENTLY THE MAJORITY FINDS "MANIFEST NECESSITY" FOR A MISTRIAL
AND THE RETRIAL OF THE DEFENDANT IN "THE STATE'S POLICY OF PRESERVING
THE RIGHT OF EACH DEFENDANT TO INSIST THAT A CRIMINAL PROSECUTION
AGAINST HIM BE COMMENCED BY THE ACTION OF A GRAND JURY" AND THE
IMPLEMENTATION OF THAT POLICY IN THE ABSENCE FROM ILLINOIS PROCEDURAL
RULES OF ANY PROCEDURE FOR THE AMENDMENT OF INDICTMENTS.  CONCEDING THE
REASONABLENESS OF SUCH A POLICY, IT MUST BE REMEMBERED THAT THE
INABILITY TO AMEND AN INDICTMENT DOES NOT COME INTO PLAY, AND A
MISTRIAL IS NOT NECESSITATED, UNLESS AN ERROR ON THE PART OF THE STATE
IN THE FRAMING OF THE INDICTMENT IS COMMITTED.  ONLY WHEN THE
INDICTMENT IS DEFECTIVE-- ONLY WHEN THE STATE HAS FAILED TO PROPERLY
EXECUTE ITS RESPONSIBILITY TO FRAME A PROPER INDICTMENT-- DOES THE
STATE'S PROCEDURAL FRAMEWORK NECESSITATE A MISTRIAL. 

ALTHOUGH RECOGNIZING THAT "A CRIMINAL TRIAL IS, EVEN IN THE BEST OF
CIRCUMSTANCES, A COMPLICATED AFFAIR TO MANAGE," IBID., THE COURT HAS
NOT PREVIOUSLY THOUGHT PROSECUTORIAL ERROR SUFFICIENT EXCUSE FOR NOT
APPLYING THE DOUBLE JEOPARDY CLAUSE.  IN JORN, FOR INSTANCE, THE COURT
DECLARED THAT "UNQUESTIONABLY AN IMPORTANT FACTOR TO BE CONSIDERED IS
THE NEED TO HOLD LITIGANTS ON BOTH SIDES TO STANDARDS OF RESPONSIBLE
PROFESSIONAL CONDUCT IN THE CLASH OF AN ADVERSARY CRIMINAL PROCESS,"
ID., AT 485-486, AND CAUTIONED, "THE TRIAL JUDGE MUST RECOGNIZE THAT
LACK OF PREPAREDNESS BY THE GOVERNMENT . . . DIRECTLY IMPLICATES
POLICIES UNDERPINNING BOTH THE DOUBLE JEOPARDY PROVISION AND THE SPEEDY
TRIAL GUARANTEE."  ID., AT 486.  SEE ALSO ID., AT 487-488 (BURGER, C.
J., CONCURRING); DOWNUM V. UNITED STATES, 372 U.S., AT 737.  HERE, THE
PROSECUTORIAL ERROR, NOT THE INDEPENDENT OPERATION OF A STATE
PROCEDURAL RULE, NECESSITATED THE MISTRIAL.  JUDGED BY THE STANDARDS OF
DOWNUM AND JORN, I CANNOT FIND, IN THE WORDS OF THE MAJORITY, AN
"IMPORTANT COUNTERVAILING INTEREST OF PROPER JUDICIAL ADMINISTRATION"
IN THIS CASE; I CANNOT FIND "MANIFEST NECESSITY" FOR A MISTRIAL TO
COMPENSATE FOR PROSECUTORIAL MISTAKE. 

FINALLY, THE MAJORITY NOTES THAT "THE DECLARATION OF A MISTRIAL ON
THE BASIS OF A RULE OR A DEFECTIVE PROCEDURE THAT WOULD LEND ITSELF TO
PROSECUTORIAL MANIPULATION WOULD INVOLVE AN ENTIRELY DIFFERENT
QUESTION."  SEE UNITED STATES V. JORN, 400 U.S.,AT 479; DOWNUM V.
UNITED STATES, SUPRA; GREEN V. UNITED STATES, 355 U.S.,AT 187-188. 
SURELY THERE IS NO EVIDENCE OF BAD FAITH OR OVERREACHING ON THIS
RECORD.  HOWEVER, THE WORDS OF THE COURT IN BALL SEEM PARTICULARLY
APPROPRIATE. 

"THIS CASE, IN SHORT, PRESENTS THE NOVEL AND UNHEARD OF SPECTACLE,
OF A PUBLIC OFFICER, WHOSE BUSINESS IT WAS TO FRAME A CORRECT BILL,
OPENLY ALLEGING HIS OWN INACCURACY OR NEGLECT, AS A REASON FOR A SECOND
TRIAL, WHEN IT IS NOT PRETENDED THAT THE MERITS WERE NOT FAIRLY IN
ISSUE ON THE FIRST . . . IF THIS PRACTICE BE TOLERATED, WHEN ARE TRIALS
OF THE ACCUSED TO END?  IF A CONVICTION TAKE PLACE, WHETHER AN
INDICTMENT BE GOOD, OR OTHERWISE, IT IS TEN TO ONE THAT JUDGMENT
PASSES; FOR, IF HE READ THE BILL, IT IS NOT PROBABLE HE WILL HAVE
PENETRATION ENOUGH TO DISCERN ITS DEFECTS.  HIS COUNSEL, IF ANY BE
ASSIGNED TO HIM, WILL BE CONTENT WITH HEARING THE SUBSTANCE OF THE
CHARGE WITHOUT LOOKING FARTHER; AND THE COURT WILL HARDLY, OF ITS OWN
ACCORD, THINK IT A DUTY TO EXAMINE THE INDICTMENT TO DETECT ERRORS IN
IT.  MANY HUNDREDS, PERHAPS, ARE NOW IN THE STATE PRISON ON ERRONEOUS
INDICTMENTS, WHO, HOWEVER, HAVE BEEN FAIRLY TRIED ON THE MERITS."  163
U.S., AT 667-668. 

I RESPECTFULLY DISSENT. 

MR. JUSTICE MARSHALL, DISSENTING. 

THE OPINION OF THE COURT EXPLICITLY DISCLAIMS THE SUGGESTION THAT IT
OVERRULES THE RECENT CASES OF UNITED STATES V. JORN, 400 U.S.
470(1971), AND DOWNUM V. UNITED STATES, 372 U.S. 734(1963).  ANTE, AT
469.  BUT THE COURT SUBSTANTIALLY EVISCERATES THE RATIONALE OF THOSE
CASES.  JORN AND DOWNUM APPEARED TO GIVE JUDGES SOME GUIDANCE IN
DETERMINING WHAT CONSTITUTED A "MANIFEST NECESSITY" FOR DECLARING A
MISTRIAL OVER A DEFENDANT'S OBJECTION.  TODAY THE COURT SEEMS TO REVERT
TO A TOTALLY UNSTRUCTURED ANALYSIS OF SUCH CASES.  I BELIEVE THAT ONE
OF THE STRENGTHS OF THE ARTICULATION OF LEGAL RULES IN A SERIES OF
CASES IS THAT SUCCESSIVE CASES PRESENT IN A CLEARER FOCUS
CONSIDERATIONS ONLY VAGUELY SEEN EARLIER.  CASES HELP DELINEATE THE
FACTORS TO BE CONSIDERED AND SUGGEST HOW THEY OUGHT TO AFFECT THE
RESULT IN PARTICULAR SITUATIONS.  THAT IS WHAT JORN AND DOWNUM DID. 
THE COURT, IT SEEMS TO ME, TODAY ABANDONS THE EFFORT IN THOSE CASES TO
SUGGEST THE IMPORTANCE OF PARTICULAR FACTORS, AND ADOPTS A GENERAL
"BALANCING" TEST WHICH, EVEN ON ITS OWN TERMS, THE COURT IMPROPERLY
APPLIES TO THIS CASE. 

THE MAJORITY PURPORTS TO BALANCE THE MANIFEST NECESSITY FOR
DECLARING A MISTRIAL, ANTE, AT 463, THE PUBLIC INTEREST "IN SEEING THAT
A CRIMINAL PROSECUTION PROCEED TO VERDICT," IBID., AND THE INTEREST IN
ASSURING IMPARTIAL VERDICTS, ANTE, AT 464.  THE SECOND INTEREST IS
OBVIOUSLY PRESENT IN EVERY CASE, AND PLACING IT IN THE BALANCE CANNOT
ALTER THE RESULT OF THE ANALYSIS OF DIFFERENT CASES.  IT IS, AT MOST, A
CONSTANT WHOSE IMPORTANCE A JUDGE MUST CONSIDER WHEN WEIGHING OTHER
FACTORS ON WHICH THE AVAILABILITY OF THE DOUBLE JEOPARDY DEFENSE
DEPENDS. 

AT THE SAME TIME, THE BALANCE THAT THE MAJORITY STRIKES ESSENTIALLY
IGNORES THE IMPORTANCE OF A FACTOR WHICH WAS DETERMINATIVE IN JORN AND
DOWNUM:  THE ACCUSED'S INTEREST IN HIS "VALUED RIGHT TO HAVE HIS TRIAL
COMPLETED BY A PARTICULAR TRIBUNAL," WADE V. HUNTER, 336 U.S. 684,
689(1949), QUOTED IN UNITED STATES V. JORN, 400 U.S., AT 484.  THIS IS
NOT A FACTOR WHICH IS EXCISED FROM ISOLATED PASSAGES OF JORN, AS THE
MAJORITY WOULD HAVE IT, ANTE, AT 469; IT IS THE CORE OF THAT CASE, AS
EVEN THE MOST CURSORY READING WILL DISCLOSE.  SEE, E.G., 400 U.S., AT
479, 484-486. 

BY MISCHARACTERIZING JORN AND DOWNUM, THE COURT FINDS IT POSSIBLE TO
REACH TODAY'S RESULT.  A FAIR READING OF THOSE CASES SHOWS HOW THE
BALANCE SHOULD PROPERLY BE STRUCK HERE.  THE FIRST ELEMENT TO BE
CONSIDERED IS THE NECESSITY FOR DECLARING A MISTRIAL.  THAT I TAKE TO
MEAN CONSIDERATION OF THE ALTERNATIVES AVAILABLE TO THE JUDGE
CONFRONTED WITH A SITUATION IN THE MIDST OF TRIAL THAT SEEMS TO REQUIRE
CORRECTION.  IN DOWNUM, FOR EXAMPLE, A KEY PROSECUTION WITNESS WAS NOT
AVAILABLE WHEN THE CASE WAS CALLED FOR TRIAL, BECAUSE OF THE
PROSECUTOR'S NEGLIGENCE.  BECAUSE THE WITNESS WAS ESSENTIAL TO
PRESENTATION OF ONLY TWO OF THE SIX COUNTS CONCERNING DOWNUM, THERE WAS
NO NECESSITY TO DECLARE A MISTRIAL AS TO ALL SIX.  TRIAL COULD HAVE
PROCEEDED ON THE FOUR COUNTS FOR WHICH THE PROSECUTION WAS READY. 
DOWNUM V. UNITED STATES, 372 U.S., AT 737.  SIMILARLY, IN JORN, THE
DISTRICT JUDGE PRECIPITATELY ABORTED THE TRIAL IN ORDER TO PROTECT THE
RIGHTS OF PROSPECTIVE WITNESSES.  AGAIN, THE ALTERNATIVE OF
INTERRUPTING THE TRIAL BRIEFLY SO THAT THE WITNESS MIGHT CONSULT WITH
ATTORNEYS WAS AVAILABLE BUT NOT INVOKED.  UNITED STATES V. JORN, 400
U.S., AT 487. 

A SUPERFICIAL EXAMINATION OF THIS CASE MIGHT SUGGEST THAT THERE WERE
NO ALTERNATIVES EXCEPT TO PROCEED WHERE "REVERSAL ON APPEAL (WOULD BE)
A CERTAINTY" ANTE, AT 464.  RESPONDENT HAD BEEN INDICTED FOR "KNOWINGLY
OBTAINING) UNAUTHORIZED CONTROL OVER STOLEN PROPERTY, TO WIT:  THIRTEEN
HUNDRED DOLLARS IN UNITED STATES CURRENCY, THE PROPERTY OF ZAYRE OF
BRIDGEVIEW, INC., A CORPORATION, KNOWING THE SAME TO HAVE BEEN STOLEN
BY ANOTHER IN VIOLATION OF CHAPTER 38, SECTION 16-1(D) OF THE ILLINOIS
REVISED STATUTES."  PETITION FOR WRIT OF CERTIORARI 3.  THE STATUTE
NAMED IN THE INDICTMENT REQUIRES THAT THE DEFENDANT HAVE "(INTENDED) TO
DEPRIVE THE OWNER PERMANENTLY OF THE USE OR BENEFIT OF THE PROPERTY." 
ILL. REV. STAT., C. 38, SEC. 16-1(D)(1)(1963). 

THE MAJORITY TREATS IT AS UNQUESTIONABLY CLEAR THAT THE FAILURE TO
ALLEGE THAT INTENT IN THE INDICTMENT MADE THE INDICTMENT FATALLY
DEFECTIVE.  AND INDEED, SINCE THE TIME OF THE TRIAL OF THIS CASE,
ILLINOIS COURTS HAVE SO HELD.  SEE, E.G., PEOPLE V. MATTHEWS, 122
ILL.APP.2D 264, 258 N.E.2D 378(1970); PEOPLE V. HAYN, 116 ILL.APP.2D
241, 253 N.E.2D 575(1969).  BUT THE ANSWER WAS NOT SO CLEAR WHEN THE
TRIAL JUDGE MADE HIS DECISION.  THE ILLINOIS CODE OF CRIMINAL PROCEDURE
HAD JUST RECENTLY BEEN AMENDED TO REQUIRE THAT AN INDICTMENT NAME THE
OFFENSE AND THE STATUTORY PROVISION ALLEGED TO HAVE BEEN VIOLATED, AND
THAT IT SET FORTH THE NATURE AND ELEMENTS OF THE OFFENSE CHARGED.  ILL.
REV. STAT., C. 38, SEC. 111-3(A)(1963).  THE INDICTMENT HERE WAS
SUFFICIENTLY DETAILED TO MEET THE FEDERAL REQUIREMENT THAT THE
INDICTMENT "CONTAINS THE ELEMENTS OF THE OFFENSE INTENDED TO BE
CHARGED, 'AND SUFFICIENTLY APPRISES THE DEFENDANT OF WHAT HE MUST BE
PREPARED TO MEET,'" HAGNER V. UNITED STATES, 285 U.S. 427, 431(1932);
SEE ALSO RUSSELL V. UNITED STATES, 369 U.S. 749(1962). 

HAD THE ILLINOIS COURTS BEEN MADE AWARE OF THE SUBSTANTIAL
CONSTITUTIONAL QUESTIONS RAISED BY RIGID APPLICATION OF AN ARCHAIC MODE
OF READING INDICTMENTS, THEY MIGHT WELL HAVE REFUSED TO HOLD THAT THE
DEFECT IN THE INDICTMENT HERE WAS JURISDICTIONAL AND NONWAIVABLE. 
CONSCIENTIOUS STATE TRIAL JUDGES CERTAINLY MUST ATTEMPT TO ANTICIPATE
THE COURSE OF INTERPRETATION OF STATE LAW.  BUT THEY MUST ALSO
CONTRIBUTE TO THAT COURSE BY POINTING OUT THE CONSTITUTIONAL
IMPLICATIONS OF ALTERNATIVE INTERPRETATIONS.  BY DOING SO, THEY WOULD
THEMSELVES HELP SHAPE THE INTERPRETATION OF STATE LAW.  HERE, FOR
EXAMPLE, HAD THE TRIAL JUDGE REFUSED TO DECLARE A MISTRIAL BECAUSE OF
HIS CONSTITUTIONAL MISGIVINGS ABOUT THE IMPLICATIONS OF THAT COURSE, HE
MIGHT HAVE PREVENTED WHAT CHIEF JUSTICE UNDERWOOD HAS CALLED A
"REVERSION TO AN OVERLY TECHNICAL, HIGHLY UNREALISTIC AND COMPLETELY
UNDESIRABLE TYPE OF FORMALISM IN PLEADING WHICH . . . SERVES NO USEFUL
PURPOSE," IN INTERPRETING THE CODE OF CRIMINAL PROCEDURE.  PEOPLE EX
REL. LEDFORD V. BRANTLEY, 46 ILL.2D 419, 423, 263 N.E.2D 27, 29 (1970)
(UNDERWOOD, C. J., DISSENTING).  A TRIAL JUDGE IN 1965 MIGHT HAVE
FORESTALLED THAT UNHAPPY DEVELOPMENT.  THUS, HE COULD HAVE PROCEEDED TO
TRY THE CASE ON THE FIRST INDICTMENT, RISKING REVERSAL AS ANY TRIAL
JUDGE DOES WHEN MAKING RULINGS OF LAW, BUT WITH NO GUARANTEE OF
REVERSAL.  IN PROCEEDING WITH THE TRIAL, HE WOULD HAVE FULLY PROTECTED
THE DEFENDANT'S INTEREST IN HAVING HIS TRIAL COMPLETED BY THE JURY
ALREADY CHOSEN. 

IF THE ONLY ALTERNATIVE TO DECLARING A MISTRIAL DID REQUIRE THE
TRIAL JUDGE TO IGNORE THE TENOR OF PREVIOUS STATE DECISIONAL LAW,
THOUGH, PERHAPS DECLARING A MISTRIAL WOULD HAVE BEEN A MANIFEST
NECESSITY.  BUT THERE OBVIOUSLY WAS ANOTHER ALTERNATIVE.  THE TRIAL
JUDGE COULD HAVE CONTINUED THE TRIAL.  THE MAJORITY SUGGESTS THAT THIS
WOULD HAVE BEEN A USELESS CHARADE.  BUT TO A DEFENDANT, FORCING THE
GOVERNMENT TO PROCEED WITH ITS PROOF WOULD ALMOST CERTAINLY NOT BE
USELESS.  THE GOVERNMENT MIGHT NOT PERSUADE THE JURY OF THE DEFENDANT'S
GUILT.  THE MAJORITY CONCEDES THAT THE DOUBLE JEOPARDY CLAUSE WOULD
THEN BAR A RETRIAL.  ANTE, AT 467; UNITED STATES V. BALL, 163 U.S.
662(1896).  TO ASSUME THAT CONTINUING THE TRIAL WOULD BE USELESS IS TO
ASSUME THAT CONVICTION IS INEVITABLE.  I WOULD NOT STRUCTURE THE
ANALYSIS OF PROBLEMS UNDER THE DOUBLE JEOPARDY CLAUSE ON AN ASSUMPTION
THAT APPEARS TO BE INCONSISTENT WITH THE PRESUMPTION OF INNOCENCE. 

ONCE IT IS SHOWN THAT ALTERNATIVES TO THE DECLARATION OF A MISTRIAL
EXISTED, AS THEY DID HERE, WE MUST CONSIDER WHETHER THE REASONS WHICH
LED TO THE DECLARATION WERE SUFFICIENT, IN LIGHT OF THOSE ALTERNATIVES,
TO OVERCOME THE DEFENDANT'S INTEREST IN TRYING THE CASE TO THE JURY. 
HERE JORN AND DOWNUM RUN DIRECTLY COUNTER TO THE HOLDING TODAY. 

I WOULD NOT CHARACTERIZE THE DISTRICT JUDGE'S BEHAVIOR IN JORN AS
"ERRATIC," AS THE COURT DOES, ANTE, AT 469.  HIS DESIRE TO PROTECT THE
RIGHTS OF PROSPECTIVE WITNESSES, WHO MIGHT HAVE UNKNOWINGLY IMPLICATED
THEM IN CRIMINAL ACTIVITIES IF THEY TESTIFIED, WAS HARDLY IRRATIONAL. 
IT, TOO, WAS "A LEGITIMATE STATE POLICY."  IBID.  THE DEFECT IN JORN
WAS THE DISTRICT JUDGE'S FAILURE TO CONSIDER ALTERNATIVE COURSES OF
ACTION, NOT THE IRRATIONALITY OF THE POLICY HE SOUGHT TO PROMOTE. 

BUT EVEN IF I AGREED WITH THE MAJORITY'S DESCRIPTION OF JORN, THAT
WOULD NOT END THE INQUIRY.  I WOULD TURN TO A CONSIDERATION OF THE
IMPORTANCE OF THE STATE POLICY THAT SEEMED TO REQUIRE DECLARING A
MISTRIAL, WHEN WEIGHED AGAINST THE DEFENDANT'S INTEREST IN CONCLUDING
THE TRIAL WITH THE JURY ALREADY CHOSEN. 

HERE AGAIN THE MAJORITY MISCHARACTERIZES THE STATE POLICY AT STAKE
HERE.  WHAT IS INVOLVED IS NOT, AS THE MAJORITY SAYS, "THE RIGHT OF
EACH DEFENDANT TO INSIST THAT A CRIMINAL PROSECUTION AGAINST HIM BE
COMMENCED BY THE ACTION OF A GRAND JURY."  ANTE, AT 468.  RATHER, THE
INTEREST IS IN MAKING THE DEFECT IN THE INDICTMENT HERE JURISDICTIONAL
AND NOT WAIVABLE BY A DEFENDANT.  ORDINARILY, A DEFECT IN JURISDICTION
MEANS THAT ONE INSTITUTION HAS INVADED THE PROPER PROVINCE OF ANOTHER. 
SUCH DEFECTS ARE NOT WAIVABLE BECAUSE THE STATE HAS AN INTEREST IN
PRESERVING THE ALLOCATION OF COMPETENCE BETWEEN THOSE INSTITUTIONS. 
HERE, FOR EXAMPLE, THE PETIT JURY WOULD INVADE THE PROVINCE OF THE
GRAND JURY IF IT RETURNED A VERDICT OF GUILTY ON AN IMPROPER
INDICTMENT.  HOWEVER, ALLOCATION OF JURISDICTION IS MOST IMPORTANT WHEN
ONE CONTINUING BODY ACTS IN THE AREA OF COMPETENCE RESERVED TO ANOTHER
CONTINUING BODY.  WHILE IT MAY BE DESIRABLE TO KEEP A SINGLE PETIT JURY
FROM INVADING THE PROVINCE OF A SINGLE GRAND JURY, SURELY THAT INTEREST
IS NOT SO SUBSTANTIAL AS TO OUTWEIGH THE "DEFENDANT'S VALUED RIGHT TO
HAVE HIS TRIAL COMPLETED BY A PARTICULAR TRIBUNAL."  WADE V. HUNTER,
336 U.S. 684, 689(1949).  CF. HENRY V. MISSISSIPPI, 379 U.S.
443(1965). 

DOWNUM V. UNITED STATES, 372 U.S. 734(1963), IS AN EVEN HARDER CASE
FOR THE MAJORITY, WHICH SUCCEEDS IN DISTINGUISHING IT ONLY BY
MISREPRESENTING THE FACTS OF THE CASE.  THE MAJORITY TREATS DOWNUM AS A
CASE INVOLVING A PROCEDURE "THAT WOULD LEND ITSELF TO PROSECUTORIAL
MANIPULATION."  ANTE, AT 464.  HOWEVER, THE FACTS IN DOWNUM, SET OUT AT
372 U.S., AT 740-742 (CLARK, J., DISSENTING), CLEARLY SHOW THAT THE
PROSECUTOR'S FAILURE TO HAVE A CRUCIAL WITNESS PRESENT WAS A NEGLIGENT
OVERSIGHT.  EXCEPT IN THE MOST ATTENUATED SENSE THAT IT MAY INDUCE A
PROSECUTOR TO FAIL TO TAKE STEPS TO PREVENT SUCH OVERSIGHTS, I CANNOT
UNDERSTAND HOW NEGLIGENCE LENDS ITSELF TO MANIPULATION.  AND EVEN IF I
COULD UNDERSTAND THAT, I CANNOT UNDERSTAND HOW NEGLIGENCE IN FAILING TO
DRAW AN ADEQUATE INDICTMENT IS DIFFERENT FROM NEGLIGENCE IN FAILING TO
ASSURE THE PRESENCE OF A CRUCIAL WITNESS.  /1/ 

I BELIEVE THAT DOWNUM AND JORN ARE CONTROLLING.  /2/  AS IN THOSE
CASES, THE TRIAL JUDGE HERE DID NOT PURSUE AN AVAILABLE ALTERNATIVE,
AND THE REASON WHICH LED HIM TO DECLARE A MISTRIAL WAS PROSECUTORIAL
NEGLIGENCE, A REASON THAT THIS COURT FOUND INSUFFICIENT IN DOWNUM. 
JORN AND DOWNUM WERE IN THE TRADITION OF ELABORATION OF RULES WHICH
GIVE INCREASING GUIDANCE AS CASE AFTER CASE IS DECIDED.  I SEE NO
REASON TO ABANDON THAT TRADITION IN THIS CASE AND TO ADOPT A NEW
BALANCING TEST WHOSE ELEMENTS ARE STATED ON SUCH A HIGH LEVEL OF
ABSTRACTION AS TO GIVE JUDGES VIRTUALLY NO GUIDANCE AT ALL IN DECIDING
SUBSEQUENT CASES.  I THEREFORE RESPECTFULLY DISSENT. 

/1/  DOWNUM MAY PERHAPS BE READ AS STATING A PROPHYLACTIC RULE. 
WHILE THE EVIL TO BE AVOIDED IS THE INTENTIONAL MANIPULATION BY THE
PROSECUTOR OF THE AVAILABILITY OF HIS WITNESSES, IT MAY BE EXTREMELY
DIFFICULT TO SECURE A DETERMINATION OF INTENTIONAL MANIPULATION.  PROOF
WILL INEVITABLY BE HARD TO COME BY.  AND THE RELATIONS BETWEEN JUDGES
AND PROSECUTORS IN MANY PLACES MAY MAKE JUDGES RELUCTANT TO FIND
INTENTIONAL MANIPULATION.  THUS, A GENERAL RULE THAT THE ABSENCE OF
CRUCIAL PROSECUTION WITNESSES IS NOT A REASON FOR DECLARING A MISTRIAL
IS NECESSARY.  ALTHOUGH THE ABUSES OF MISDRAWING INDICTMENTS ARE LESS
APPARENT THAN THOSE OF MANIPULATING THE AVAILABILITY OF WITNESSES, I
BELIEVE THAT, EVEN IF DOWNUM IS BASED ON THE FOREGOING ANALYSIS-- AN
ANALYSIS WHICH APPEARS NOWHERE IN THE OPINION-- A SIMILAR PROPHYLACTIC
RULE IS DESIRABLE HERE. 

FOR EXAMPLE, IN THIS CASE THE STATE GAINED TWO WEEKS TO STRENGTHEN A
WEAK CASE.  THIS IS FAR LONGER THAN THE TWO-DAY DELAY IN DOWNUM, AND,
TO THE EXTENT THAT THE TIME WAS USED TO STRENGTHEN THE CASE, THE
PROSECUTOR COULD HAVE CAPITALIZED ON HIS PREVIOUS NEGLIGENCE IN DRAWING
THE INDICTMENT. 

/2/  SO FAR I HAVE READ JORN AND DOWNUM AS RESTRICTIVELY AS THEY CAN
BE FAIRLY READ.  BUT THOSE CASES, I BELIEVE, SHOULD BE READ MORE
EXPANSIVELY.  THEY SHOW TO ME THAT "MANIFEST NECESSITY" CANNOT BE
CREATED BY ERRORS ON THE PART OF THE PROSECUTOR OR JUDGE; IT MUST ARISE
FROM SOME SOURCE OUTSIDE THEIR CONTROL.  WADE V. HUNTER, 336 U.S.
684(1949), WAS CLEARLY SUCH A CASE.  SO WERE THE CASES THAT THE
MAJORITY SAYS INVOLVED SITUATIONS WHERE "AN IMPARTIAL VERDICT CANNOT BE
REACHED," ANTE, AT 464.  IN THOSE CASES, A JUROR OR THE JURY AS A
WHOLE, UNCONTROLLED BY THE JUDGE OR PROSECUTOR, PREVENTED THE TRIAL
FROM PROCEEDING TO A VERDICT.  UNITED STATES V. PEREZ, 9 WHEAT. 
579(1824); SIMMONS V. UNITED STATES, 142 U.S. 148(1891); THOMPSON V.
UNITED STATES, 155 U.S. 271(1894). 

E. JAMES GILDEA, ASSISTANT ATTORNEY GENERAL ILLINOIS, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, AND JAMES B. ZAGEL, ASSISTANT ATTORNEY GENERAL. 

RONALD P. ALWIN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS MARTIN S. GERBER. 
..END :























DEPT. MOTOR VEHICLES OF CALIFORNIA V. RIOS, 410 U.S. 425 


       DEPARTMENT OF MOTOR VEHICLES OF CALIFORNIA V. RIOS

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           CALIFORNIA

        NO. 72-686.  DECIDED FEBRUARY 26, 1973 


SINCE IT IS NOT CLEAR WHETHER THE CALIFORNIA SUPREME COURT JUDGMENT
REVERSING THE LOWER COURT IS BASED ON FEDERAL OR STATE CONSTITUTIONAL
GROUNDS, OR BOTH, AND THEREFORE WHETHER THIS COURT HAS JURISDICTION ON
REVIEW, THAT JUDGMENT IS VACATED AND THE CASE REMANDED. 

CERTIORARI GRANTED; 7 CAL.3D 792, 499 P.2D 979, VACATED AND
REMANDED. 

PER CURIAM. 

PETITIONER, A CALIFORNIA MOTORIST, WAS INVOLVED IN AN AUTOMOBILE
COLLISION ON MARCH 18, 1971.  BOTH DRIVERS FILED ACCIDENT REPORTS WITH
THE CALIFORNIA DEPARTMENT OF MOTOR VEHICLES AS REQUIRED BY THE
CALIFORNIA FINANCIAL RESPONSIBILITY LAWS.  WITHOUT AFFORDING PETITIONER
A HEARING ON THE QUESTION OF POTENTIAL LIABILITY, AND BASED SOLELY ON
THE CONTENTS OF THE ACCIDENT REPORTS, THE DEPARTMENT FOUND THAT THERE
WAS A REASONABLE POSSIBILITY THAT A JUDGMENT MIGHT BE RECOVERED AGAINST
PETITIONER AS A RESULT OF THE ACCIDENT.  SINCE PETITIONER WAS UNINSURED
AND COULD NOT DEPOSIT SECURITY, HIS LICENSE WAS SUSPENDED.  THE SUPREME
COURT OF CALIFORNIA REVERSED, HOLDING THAT PRIOR TO SUSPENSION "A
HEARING IS REQUIRED AND THAT AT SUCH A HEARING THE LICENSEE IS ENTITLED
TO REVIEW THE REPORTS OR OTHER EVIDENCE UPON WHICH THE DEPARTMENT
CONTEMPLATES DETERMINING THAT HE IS POSSIBLY RESPONSIBLE FOR THE
ACCIDENT, AND TO PRESENT REPORTS OR TESTIMONY TO ESTABLISH HIS CLAIM OF
NONCULPABILITY, ALL WITHIN REASONABLE DUE PROCESS PROCEDURES WHICH THE
DEPARTMENT MAY EMPLOY."  RIOS V. COZENS, 7 CAL.3D 792, 799, 499 P.2D
979, 984(1972). 

WE ARE UNABLE TO DETERMINE, HOWEVER, WHETHER THE CALIFORNIA SUPREME
COURT BASED ITS HOLDING UPON THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, OR UPON THE
EQUIVALENT PROVISION OF THE CALIFORNIA CONSTITUTION, OR BOTH.  IN
REACHING ITS RESULT IN THIS CASE, THE CALIFORNIA COURT RELIEF PRIMARILY
UPON THIS COURT'S DECISIONS IN BELL V. BURSON, 402 U.S. 535(1971), AND
JENNINGS V. MAHONEY, 404 U.S. 25(1971), BUT ALSO CITED ITS OWN
DECISIONS IN RANDONE V. APPELLATE DEPARTMENT, 5 CAL.3D 536, 488 P.2D
13(1971); BLAIR V. PITCHESS, 5 CAL.3D 258, 486 P.2D 1242(1971);
MCCALLOP V. CARBERRY, 1 CAL.3D 903, 464 P.2D 122(1970), AND CLINE V.
CREDIT BUREAU OF SANTA CLARA VALLEY, 1 CAL.3D 908, 464 P.2D 125(1970),
WHICH APPARENTLY WERE PREMISED UPON BOTH THE STATE AND FEDERAL
PROVISIONS.  IN ADDITION, THE COURT IN RIOS SPECIFICALLY OVERRULED ITS
OWN PRIOR DECISIONS IN ORR V. SUPERIOR COURT, 71 CAL.2D 220, 454 P.2D
712(1969), AND ESCOBEDO V. STATE OF CALIFORNIA, 35 CAL.2D 870, 222 P.2D
1(1950), WHICH HAD UPHELD THE PROCEDURES HERE UNDER ATTACK UNDER BOTH
THE STATE AND FEDERAL PROVISIONS.  THUS, AS IN MENTAL HYGIENE DEPT. V.
KIRCHNER, 380 U.S. 194, 196-197(1965), "(WHILE WE MIGHT SPECULATE FROM
THE CHOICE OF WORDS USED IN THE OPINION, AND THE AUTHORITIES CITED BY
THE COURT, WHICH PROVISION WAS THE BASIS FOR THE JUDGMENT OF THE STATE
COURT, WE ARE UNABLE TO SAY WITH ANY DEGREE OF CERTAINTY THAT THE
JUDGMENT OF THE CALIFORNIA SUPREME COURT WAS NOT BASED ON AN ADEQUATE
AND INDEPENDENT NONFEDERAL GROUND."  WE THEREFORE GRANT THE STATE OF
CALIFORNIA'S PETITION FOR CERTIORARI, VACATE THE JUDGMENT OF THE
SUPREME COURT OF CALIFORNIA, AND REMAND THE CAUSE TO THAT COURT FOR
SUCH FURTHER PROCEEDINGS AS MAY BE APPROPRIATE.  CALIFORNIA V. KRIVDA,
409 U.S. 33(1972); MENTAL HYGIENE DEPT. V. KIRCHNER, SUPRA; MINNESOTA
V. NATIONAL TEA CO., 309 U.S. 551(1940); STATE TAX COMM'N V. VAN COTT,
306 U.S. 511(1939). 

              IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, AND MR. JUSTICE MARSHALL CONCUR, DISSENTING. 

THE COURT IS QUITE CORRECT IN SAYING THAT WE HAVE VACATED AND
REMANDED CASES FROM STATE COURTS WHICH WE TOOK BY WAY OF APPEAL OR
CERTIORARI, WHEN WE WERE UNCERTAIN WHETHER THE JUDGMENT RESTED ON STATE
OR FEDERAL GROUNDS.  BUT MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551,
SHOWS HOW UNHAPPY THAT PRACTICE IS.  /1/  YET, EVEN ASSUMING IT IS THE
PROPER PROCEDURE, WE SHOULD NOT USE IT TO DETERMINE WHETHER WE SHOULD
TAKE A CASE.  NO CASE FROM A STATE COURT CAN PROPERLY REACH HERE UNTIL
AND UNLESS A FEDERAL QUESTION IS PRESENTED.  OUR RULE 19(1)(A) STATES
AS A STANDARD FOR GRANTING CERTIORARI FROM A STATE COURT THE
FOLLOWING: 

     "WHERE A STATE COURT HAS DECIDED A FEDERAL QUESTION OF

  SUBSTANCE NOT THERETOFORE DETERMINED BY THIS COURT, OR HAS

  DECIDED IT IN A WAY PROBABLY NOT IN ACCORD WITH APPLICABLE

  DECISIONS OF THIS COURT." 

THE COURT IN COMMERCIAL BANK V. BUCKINGHAM'S EXECUTORS, 5 HOW.  317,
341, SAID THAT IT WAS NOT ENOUGH THAT A FEDERAL QUESTION HAD BEEN
PRESENTED TO THE STATE COURT BUT THAT "IT MUST APPEAR, BY CLEAR AND
NECESSARY INTENDMENT, THAT THE QUESTION MUST HAVE BEEN RAISED, AND MUST
HAVE BEEN DECIDED, IN ORDER TO INDUCE THE JUDGMENT."  IN BROWN V.
ATWELL, 92 U.S. 327, 329, THE COURT RULED THAT IT MUST APPEAR THAT THE
DECISION OF A FEDERAL QUESTION "WAS NECESSARY TO THE DETERMINATION OF
THE CAUSE, AND THAT IT WAS ACTUALLY DECIDED, OR THAT THE JUDGMENT AS
RENDERED COULD NOT HAVE BEEN GIVEN WITHOUT DECIDING IT." 

WE HAVE AT TIMES VACATED AND REMANDED PRIOR TO OUR DECISION TO TAKE
OR DENY OR TO NOTE OR DISMISS A CASE, SO THAT THE RECORD CAN BE
CLARIFIED.  SEE HONEYMAN V. HANAN, 300 U.S. 14, 25-26. 

BUT WE KNOW IN THIS CASE THAT A FEDERAL QUESTION WAS PRESENTED AND
RULED UPON.  WE KNOW THAT A STATE QUESTION WAS ALSO PRESENTED AND RULED
UPON.  WHERE ARGUABLY "THE JUDGMENT OF THE STATE COURT RESTS ON TWO
GROUNDS, ONE INVOLVING A FEDERAL QUESTION AND THE OTHER NOT," LYNCH V.
NEW YORK, 293 U.S. 52, 54, WE DO NOT TAKE THE CASE. 

THE RULING OF THE SUPREME COURT OF CALIFORNIA IN THE PRESENT CASE
INVOLVING THE REVOCATION OF A DRIVER'S LICENSE WITHOUT A HEARING, WAS
AS FOLLOWS: 

"PETITIONER RELIES ON NUMEROUS RECENT CASES IN WHICH THE UNITED

  STATES SUPREME COURT AND THIS COURT HAVE RECOGNIZED THAT AN

  INDIVIDUAL IS CONSTITUTIONALLY ENTITLED TO A HEARING PRIOR TO

  BEING DEPRIVED OF A SIGNIFICANT INTEREST.  (GOLDBERT V. KELLY

  (1970) 397 U.S. 254, 266; SNIADACH V. FAMILY FINANCE CORP. (1969)

  395 U.S. 337, 342, RANDONE V. APPELLATE DEPARTMENT (1971) 5

  CAL.3D 536, 547.)  THIS PRINCIPLE IS APPLICABLE TO A PLETHORA OF

  VITAL PERSONAL AND PROPERTY RIGHTS (SEE RANDONE V. APPELLATE

  DEPARTMENT, SUPRA, 5 CAL.3D 536, 548,FN.8), BUT IT HAS MOST

  FREQUENTLY BEEN APPLIED IN THIS STATE TO INVALIDATE STATUTES

AFFORDING A CREDITOR PREJUDGMENT REMEDIES AGAINST A DEBTOR

 WITHOUT PRIOR NOTICE OR HEARING (SEE E.G., BLAIR V. PITCHESS

  (1971) 5 CAL.3D 258; MCCALLOP V. CARBERRY (1970) 1 CAL.3D 903;

  CLINE V. CREDIT BUREAU OF SANTA CLARA VALLEY (1970) 1 CAL.3D

  908). 

     "THE RULE EXPLICATED IN FOREGOING CASES IS APPLICABLE TO THE

  INSTANT CIRCUMSTANCES."  7 CAL.3D 792, 795, 499 P.2D 979, 981. 

IT SEEMS PLAIN THAT THE CALIFORNIA SUPREME COURT DECISION RESTED ON
BOTH FEDERAL AND STATE GROUNDS AND THEREFORE THAT THE REQUISITE SHOWING
OF THE PRESENCE OF A CONTROLLING FEDERAL QUESTION WHICH HAS BEEN ON THE
BOOKS SINCE THE FIRST JUDICIARY ACT, 1 STAT. 73, 85, HAS NOT BEEN
MADE.  /2/ 

THE OPINION OF THE SUPREME COURT OF CALIFORNIA WRITTEN BY JUSTICE
MOSK WAS AGREED TO BY ALL.  IT MAKES CLEAR THAT BOTH STATE AND FEDERAL
GROUNDS WERE THE BASIS OF THE JUDGMENT.  THE INTERNATIONAL COURT OF
JUSTICE THAT HAS ONLY A CASE OR TWO A TERM MIGHT BE TEMPTED TO SEEK A
LARGER DOCKET.  OURS IS ALREADY LARGE; AND IT HARDLY COMPORTS WITH THE
MESSAGES OF DISTRESS WHICH HAVE EMANATED FROM HERE FOR US TO SEEK TO
GATHER IN MORE CASES THAT FROM THE BEGINNING HAVE BEEN SPARSELY AND
DISCRETELY SELECTED FROM THE STATE DOMAIN.  COHENS V. VIRGINIA, 6
WHEAT.  264, RAISED A STORM OF PROTEST AGAINST FEDERAL INTRUSION ON
STATE RIGHTS THAT HAS NOT YET SUBSIDED.  MINNESOTA V. NATIONAL TEA CO.,
SUPRA, TAUGHT ME THAT IT IS WISE TO INSIST THAT CASES TAKEN FROM A
STATE COURT BE CLEARLY DECIDED ON A FEDERAL GROUND AND NOT, AS HERE, ON
BOTH STATE AND FEDERAL GROUNDS, SAVE WHERE THE STATE AND FEDERAL
QUESTIONS ARE SO INTERTWINED AS TO MAKE THE STATE GROUND NOT AN
INDEPENDENT MATTER.  SEE ENTERPRISE IRRIGATION DISTRICT V. CANAL CO.,
243 U.S. 157, 163-165. 

I WOULD DENY THIS PETITION FOR CERTIORARI. 

/1/  ON REMAND THE SUPREME COURT OF MINNESOTA SAID: 

"IF WE WERE IN ERROR, THEN ASSUREDLY THE OPPORTUNITY TO BE SET
ARIGHT SHOULD BE CHEERFULLY AND THANKFULLY ACCEPTED.  HAVING SO
REEXAMINED THEM, WE CONCLUDE THAT OUR PRIOR DECISION WAS RIGHT.  THERE
IS NO NEED OF FURTHER DISCUSSION OF THE PROBLEMS PRESENTED FRO THE
FORMER OPINION ADEQUATELY COVERS THE GROUND.  WE THINK THAT THE SECTION
OF THE STATUTE HERE INVOLVED (L. 1933, C. 213, SEC. 2(B), 3 MASON
MINN.ST. 1936 SUPP. SEC. 5887-2(B)), IS VIOLATIVE OF THE UNIFORMITY
CLAUSE OF OUR OWN CONSTITUTION."  NATIONAL TEA CO. V. STATE, 208 MINN.
607, 608, 294 N.W. 230, 231. 

/2/  TITLE 28 U.S.C. 1257 PRESENTLY PROVIDES AS TO CERTIORARI: 

"FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT OF A STATE
IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE SUPREME COURT
AS FOLLOWS: 

"(3) BY WRIT OF CERTIORARI, WHERE THE VALIDITY OF A TREATY OR
STATUTE OF THE UNITED STATES IS DRAWN IN QUESTION OR WHERE THE VALIDITY
OF A STATE STATUTE IS DRAWN IN QUESTION ON THE GROUND OF ITS BEING
REPUGNANT TO THE CONSTITUTION, TREATIES OR LAWS OF THE UNITED STATES,
OR WHERE ANY TITLE, RIGHT, PRIVILEGE OR IMMUNITY IS SPECIALLY SET UP OR
CLAIMED UNDER THE CONSTITUTION, TREATIES OR STATUTES OF, OR COMMISSION
HELD OR AUTHORITY EXERCISED UNDER, THE UNITED STATES." 
..END :





LEHNHAUSEN V. LAKE SHORE AUTO PARTS CO., 410 U.S. 356 


       LEHNHAUSEN, DIRECTOR, DEPARTMENT OF LOCAL GOVERNMENT AFFAIRS

           OF ILLINOIS V. LAKE SHORE AUTO PARTS CO. ET AL.

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS

        NO. 71-685.  ARGUED JANUARY 15, 1973-- DECIDED FEBRUARY 22,

           1973  /0/ 


AN ILLINOIS CONSTITUTIONAL PROVISION SUBJECTING CORPORATIONS AND
SIMILAR ENTITIES, BUT NOT INDIVIDUALS, TO AD VALOREM TAXES ON
PERSONALTY COMPORTS WITH EQUAL PROTECTION REQUIREMENTS, THE STATES
BEING ACCORDED WIDE LATITUDE IN MAKING CLASSIFICATIONS AND DRAWING
LINES THAT IN THEIR JUDGMENT PRODUCE REASONABLE TAXATION SYSTEMS. 
QUAKER CITY CAB CO. V. PENNSYLVANIA, 277 U.S. 389, DISAPPROVED.  PP.
359-365. 

49 ILL.2D 137, 273 N.E.2D 592, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1970 THE PEOPLE OF ILLINOIS AMENDED ITS CONSTITUTION /1/  ADDING
ART. IX-A TO BECOME EFFECTIVE JANUARY 1, 1971, AND READING: 

     "NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONSTITUTION, THE

  TAXATION OF PERSONAL PROPERTY BY VALUATION IS PROHIBITED AS TO

  INDIVIDUALS." 

THERE APPARENTLY APPEARED ON THE BALLOT WHEN ART. IX-A WAS APPROVED
THE FOLLOWING: 

     "THE AMENDMENT WOULD ABOLISH THE PERSONAL PROPERTY TAX BY

  VALUATION LEVIED AGAINST INDIVIDUALS.  IT WOULD NOT AFFECT THE

  SAME TAX LEVIED AGAINST CORPORATIONS AND OTHER ENTITIES NOT

  CONSIDERED IN LAW TO BE INDIVIDUALS.  THE AMENDMENT WOULD ACHIEVE

  THIS RESULT BY ADDING A NEW ARTICLE TO THE CONSTITUTION OF 1870,

  ARTICLE IX-A, THUS SETTING ASIDE EXISTING PROVISIONS OF ARTICLE

  IX, SECTION 1, THAT REQUIRE THE TAXATION BY VALUATION OF ALL

  FORMS OF PROPERTY, REAL AND PERSONAL OR OTHER, OWNED BY

  INDIVIDUALS AND CORPORATIONS." 

RESPONDENT LAKE SHORE AUTO PARTS CO., A CORPORATION, BROUGHT AN
ACTION AGAINST ILLINOIS OFFICIALS ON ITS BEHALF AND ON BEHALF OF ALL
OTHER CORPORATIONS AND "NON-INDIVIDUALS" SUBJECT TO THE PERSONAL
PROPERTY TAX, CLAIMING THAT THE TAX VIOLATED THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT SINCE IT EXEMPTS FROM PERSONAL
PROPERTY TAXES ALL PERSONAL PROPERTY OWNED BY INDIVIDUALS BUT RETAINS
SUCH TAXES AS TO PERSONAL PROPERTY OWNED BY CORPORATIONS AND OTHER "NON
INDIVIDUALS."  THE CIRCUIT COURT HELD THE REVENUE ACT OF ILLINOIS, AS
AMENDED BY ART. IX-A, UNCONSTITUTIONAL AS RESPECTS CORPORATIONS BY
REASON OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

SHAPIRO AND OTHER INDIVIDUALS ALSO BROUGHT SUIT ALLEGING THEY ARE
NATURAL PERSONS WHO OWN PERSONAL PROPERTY, ONE FOR HIMSELF AND HIS
FAMILY, ONE AS A SOLE PROPRIETOR OF A BUSINESS, AND ONE AS A
PARTNERSHIP.  A DIFFERENT TRIAL JUDGE ENTERED AN ORDER IN THESE CASES
DISMISSING THE COMPLAINTS EXCEPT AS TO SHAPIRO AND MEMBERS OF HIS
CLASS.  THE TRIAL JUDGE HELD THAT ALL OTHER PROVISIONS OF ILLINOIS LAW
IMPOSING PERSONAL PROPERTY TAXES ON PROPERTY OWNED BY CORPORATIONS AND
OTHER "NON-INDIVIDUALS" WERE UNAFFECTED BY ART. IX-A, IN LINE WITH THE
STATEMENT ON THE BALLOT, QUOTED ABOVE. 

ALL RESPONDENTS IN BOTH CASES APPEALED TO THE ILLINOIS SUPREME
COURT, WHICH HELD THAT ART. IX-A DID NOT AFFECT ALL FORMS OF REAL AND
PERSONAL PROPERTY TAXES BUT ONLY PERSONAL PROPERTY TAXES ON
INDIVIDUALS, WHICH IT CONSTRUED TO MEAN "AD VALOREM TAXATION OF
PERSONAL PROPERTY OWNED BY A NATURAL PERSON OR BY TWO OR MORE NATURAL
PERSONS AS JOINT TENANTS OR TENANTS IN COMMON."  49 ILL.2D 137, 148,
273 N.E.2D 592, 597.  AS SO CONSTRUED, THE ILLINOIS SUPREME COURT HELD
THAT THE TAX VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  ID., AT 151, 273 N.E.2D, AT 599, ONE JUSTICE DISSENTING. 
/2/  THE CASES ARE HERE ON WRITS OF CERTIORARI WHICH WE GRANTED.  405
U.S. 1039. 

THE EQUAL PROTECTION CLAUSE DOES NOT MEAN THAT A STATE MAY NOT DRAW
LINES THAT TREAT ONE CLASS OF INDIVIDUALS OR ENTITIES DIFFERENTLY FROM
THE OTHERS.  THE TEST IS WHETHER THE DIFFERENCE IN TREATMENT IS AN
INVIDIOUS DISCRIMINATION.  HARPER V. VIRGINIA BOARD OF ELECTIONS, 383
U.S. 663, 666.  WHERE TAXATION IS CONCERNED AND NO SPECIFIC FEDERAL
RIGHT, APART FROM EQUAL PROTECTION, IS IMPERILED, /3/  THE STATES HAVE
LARGE LEEWAY IN MAKING CLASSIFICATIONS AND DRAWING LINES WHICH IN THEIR
JUDGMENT PRODUCE REASONABLE SYSTEMS OF TAXATION.  AS STATED IN ALLIED
STORES OF OHIO V. BOWERS, 358 U.S. 522, 526-527: 

     "THE STATES HAVE A VERY WIDE DISCRETION IN THE LAYING OF THEIR

  TAXES.  WHEN DEALING WITH THEIR PROPER DOMESTIC CONCERNS, AND NOT

  TRENCHING UPON THE PREROGATIVES OF THE NATIONAL GOVERNMENT OR

  VIOLATING THE GUARANTIES OF THE FEDERAL CONSTITUTION, THE STATES

  HAVE THE ATTRIBUTE OF SOVEREIGN POWERS IN DEVISING THEIR FISCAL

SYSTEMS TO ENSURE REVENUE AND FOSTER THEIR LOCAL INTERESTS.  OF

  COURSE, THE STATES, IN THE EXERCISE OF THEIR TAXING POWER, ARE

  SUBJECT TO THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE OF THE

  FOURTEENTH AMENDMENT.  BUT THAT CLAUSE IMPOSES NO IRON RULE OF

  EQUALITY, PROHIBITING THE FLEXIBILITY AND VARIETY THAT ARE

  APPROPRIATE TO REASONABLE SCHEMES OF STATE TAXATION.  THE STATE

  MAY IMPOSE DIFFERENT SPECIFIC TAXES UPON DIFFERENT TRADES AND

  PROFESSIONS AND MAY VARY THE RATE OF EXCISE UPON VARIOUS

  PRODUCTS.  IT IS NOT REQUIRED TO RESORT TO CLOSE DISTINCTIONS OR

  TO MAINTAIN A PRECISE, SCIENTIFIC UNIFORMITY WITH REFERENCE TO

  COMPOSITION, USE OR VALUE." 

IN THAT CASE WE USED THE PHRASE "PALPABLY ARBITRARY" OR "INVIDIOUS"
AS DEFINING THE LIMITS PLACED BY THE EQUAL PROTECTION CLAUSE ON STATE
POWER.  ID., AT 530.  STATE TAXES WHICH HAVE THE COLLATERAL EFFECT OF
RESTRICTING OR EVEN DESTROYING AN OCCUPATION OR A BUSINESS HAVE BEEN
SUSTAINED, SO LONG AS THE REGULATORY POWER ASSERTED IS PROPERLY WITHIN
THE LIMITS OF THE FEDERAL-STATE REGIME CREATED BY THE CONSTITUTION. 
MAGNANO CO. V. HAMILTON, 292 U.S. 40, 44-47.  WHEN IT COMES TO TAXES ON
CORPORATIONS AND TAXES ON INDIVIDUALS, GREAT LEEWAY IS PERMISSIBLE SO
FAR AS EQUAL PROTECTION IS CONCERNED.  THEY MAY BE CLASSIFIED
DIFFERENTLY WITH RESPECT TO THEIR RIGHT TO RECEIVE OR EARN INCOME.  IN
LAWRENCE V. STATE TAX COMM'N, 286 U.S 276, 283, A STATE STATUTE
RELIEVED DOMESTIC CORPORATIONS OF AN INCOME TAX DERIVED FROM ACTIVITIES
CARRIED ON OUTSIDE THE STATE, BUT IMPOSED THE TAX ON INDIVIDUALS
OBTAINING SUCH INCOME.  WE UPHELD THE TAX AGAINST THE CLAIM THAT IT
VIOLATED THE EQUAL PROTECTION CLAUSE, SAYING: 

     "WE CANNOT SAY THAT INVESTIGATION IN THESE FIELDS WOULD NOT

  DISCLOSE A BASIS FOR THE LEGISLATION WHICH WOULD LEAD REASONABLE

MEN TO CONCLUDE THAT THERE IS JUST GROUND FOR THE DIFFERENCE HERE

  MADE.  THE EXISTENCE, UNCHALLENGED, OF DIFFERENCES BETWEEN THE

  TAXATION OF INCOMES OF INDIVIDUALS AND OF CORPORATIONS IN EVERY

  FEDERAL REVENUE ACT SINCE THE ADOPTION OF THE SIXTEENTH

  AMENDMENT, DEMONSTRATES THAT THERE MAY BE."  ID., AT 283-284. 

IT IS TRUE THAT IN QUAKER CITY CAB CO. V. PENNSYLVANIA, 277 U.S.
389, THE COURT HELD THAT A GROSS RECEIPTS TAX LEVIED ON CORPORATIONS
DOING A TAXI BUSINESS VIOLATED THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, WHEN NO SUCH TAX WAS LEVIED ON INDIVIDUALS AND
PARTNERSHIPS OPERATING TAXICABS IN COMPETITION WITH THE CORPORATE
TAXPAYERS.  JUSTICES HOLMES, BRANDEIS, AND STONE DISSENTED.  ID., AT
403-412.  MR. JUSTICE HOLMES STATED: 

     "IF USUALLY THERE IS AN IMPORTANT DIFFERENCE OF DEGREE BETWEEN

  THE BUSINESS DONE BY CORPORATIONS AND THAT DONE BY INDIVIDUALS, I

  SEE NO REASON WHY THE LARGER BUSINESSES MAY NOT BE TAXED AND THE

SMALL ONES DISREGARDED, AND I THINK IT WOULD BE IMMATERIAL IF

  HERE AND THERE EXCEPTIONS WERE FOUND TO THE GENERAL RULE . . .

  FURTHERMORE IF THE STATE DESIRED TO DISCOURAGE THIS FORM OF

  ACTIVITY IN CORPORATE FORM AND EXPRESSED ITS DESIRE BY A SPECIAL

  TAX I THINK THAT THERE IS NOTHING IN THE FOURTEENTH AMENDMENT TO

  PREVENT IT."  ID., AT 403. 

EACH OF THESE DISSENTERS THOUGHT FLINT V. STONE TRACY CO., 220 U.S.
107, SHOULD GOVERN QUAKER CITY CAB.  THE FLINT CASE INVOLVED A FEDERAL
TAX UPON THE PRIVILEGE OF DOING BUSINESS IN A CORPORATE CAPACITY, BUT
IT WAS NOT LAID ON BUSINESSES CARRIED ON BY A PARTNERSHIP OR PRIVATE
INDIVIDUAL.  IT WAS, THEREFORE, CONTENDED THAT THE TAX WAS "SO UNEQUAL
AND ARBITRARY" AS TO BE BEYOND THE POWER OF CONGRESS.  ID., AT 158.  WE
HAD NOT YET HELD THAT THE FIFTH AMENDMENT IN ITS USE OF DUE PROCESS
CARRIES A MANDATE OF EQUAL PROTECTION.  /4/  BUT THE COURT IN DICTUM
STATED: 

     "(IT COULD NOT BE SAID, EVEN IF THE PRINCIPLES OF THE

  FOURTEENTH AMENDMENT WERE APPLICABLE TO THE PRESENT CASE, THAT

  THERE IS NO SUBSTANTIAL DIFFERENCE BETWEEN THE CARRYING ON OF

  BUSINESS BY THE CORPORATIONS TAXED, AND THE SAME BUSINESS WHEN

  CONDUCTED BY A PRIVATE FIRM OR INDIVIDUAL.  THE THING TAXED IS

  NOT THE MERE DEALING IN MERCHANDISE, IN WHICH THE ACTUAL

  TRANSACTIONS MAY BE THE SAME, WHETHER CONDUCTED BY INDIVIDUALS OR

  CORPORATIONS, BUT THE TAX IS LAID UPON THE PRIVILEGES WHICH EXIST

IN CONDUCTING BUSINESS WITH THE ADVANTAGES WHICH INHERE IN THE

  CORPORATE CAPACITY OF THOSE TAXED, AND WHICH ARE NOT ENJOYED BY

  PRIVATE FIRMS OR INDIVIDUALS.  THESE ADVANTAGES ARE OBVIOUS, AND

  HAVE LED TO THE FORMATION OF SUCH COMPANIES IN NEARLY ALL

  BRANCHES OF TRADE.  THE CONTINUITY OF THE BUSINESS, WITHOUT

  INTERRUPTION BY DEATH OR DISSOLUTION, THE TRANSFER OF PROPERTY

  INTERESTS BY THE DISPOSITION OF SHARES OF STOCK, THE ADVANTAGES

  OF BUSINESS CONTROLLED AND MANAGED BY CORPORATE DIRECTORS, THE

  GENERAL ABSENCE OF INDIVIDUAL LIABILITY, THESE AND OTHER THINGS

  INHERE IN THE ADVANTAGES OF BUSINESS THUS CONDUCTED, WHICH DO NOT

  EXIST WHEN THE SAME BUSINESS IS CONDUCTED BY PRIVATE INDIVIDUALS

  OR PARTNERSHIPS.  IT IS THIS DISTINCTIVE PRIVILEGE WHICH IS THE

  SUBJECT OF TAXATION, NOT THE MERE BUYING OR SELLING OR HANDLING

  OF GOODS WHICH MAY BE THE SAME, WHETHER DONE BY CORPORATIONS OR

  INDIVIDUALS."  ID., AT 161-162. 

WHILE QUAKER CITY CAB CAME AFTER FLINT, CASES FOLLOWING QUAKER CITY
CAB HAVE SOMEWHAT UNDERMINED IT.  WHITE RIVER CO. V. ARKANSAS, 279 U.S.
692, INVOLVED A STATE STATUTE FOR COLLECTION OF BACK TAXES ON LANDS
OWNED BY CORPORATIONS BUT NOT INDIVIDUALS.  THE COURT SUSTAINED THE
STATUTE.  MR. JUSTICE BUTLER, MR. CHIEF JUSTICE TAFT, AND MR. JUSTICE
VANDEVANTER DISSENTED, ASSERTING THAT QUAKER CITY CAB WAS NOT
DISTINGUISHABLE.  THE MAJORITY MADE NO EFFORT TO DISTINGUISH QUAKER
CITY CAB BEYOND SAYING THAT IT DID NOT INVOLVE, AS DID WHITE RIVER,
BACK TAXES.  ID., AT 696. 

IN RAPID TRANSIT CO. V. NEW YORK, 303 U.S. 573, AN EXCISE TAX WAS
LEVIED ON EVERY UTILITY BUT NOT ON OTHER BUSINESS UNITS.  IN SUSTAINING
THE TAX AGAINST THE CLAIM OF LACK OF EQUAL PROTECTION, THE COURT SAID: 

     "SINCE CARRIERS OR OTHER UTILITIES WITH THE RIGHT OF EMINENT

  DOMAIN, THE USE OF PUBLIC PROPERTY, SPECIAL FRANCHISES OR PUBLIC

 CONTRACTS, HAVE MANY POINTS OF DISTINCTION FROM OTHER BUSINESSES,

  INCLUDING RELATIVE FREEDOM FROM COMPETITION, ESPECIALLY

  SIGNIFICANT WITH INCREASING DENSITY OF POPULATION AND MUNICIPAL

  EXPANSION, THESE PUBLIC SERVICE ORGANIZATIONS HAVE NO VALID

  GROUND BY VIRTUE OF THE EQUAL PROTECTION CLAUSE TO OBJECT TO

  SEPARATE TREATMENT RELATED TO SUCH DISTINCTIONS."  ID., AT 579. 

WE REACHED THE SAME RESULT IN NASHVILLE, C. & ST. L.R. CO. V.
BROWNING, 310 U.S. 362, WHERE TENNESSEE HAD USED ONE SYSTEM FOR MAKING
ASSESSMENTS UNDER ITS AD VALOREM TAX LAW AS RESPECTS MOST TAXPAYERS AND
A TOTALLY DIFFERENT ONE FOR PUBLIC SERVICE CORPORATIONS.  SO FAR AS
EQUAL PROTECTION WAS CONCERNED, WE SAID THAT THE GRIEVANCE OF THE
PARTICULAR COMPLAINANT WAS "COMMON TO THE WHOLE CLASS" AND NOT
"INVIDIOUS TO A PARTICULAR TAXPAYER."  /5/  ID., AT 368. 

APPROVAL OF THE TREATMENT "WITH THAT SEPARATENESS" WHICH
DISTINGUISHES PUBLIC SERVICE CORPORATIONS FROM OTHERS, IBID., LEADS US
TO CONCLUDE IN THE PRESENT CASES THAT MAKING CORPORATIONS AND LIKE
ENTITIES, BUT NOT INDIVIDUALS, LIABLE FOR AL VALOREM TAXES ON PERSONAL
PROPERTY DOES NOT TRANSCEND THE REQUIREMENTS OF EQUAL PROTECTION. 

IN MADDEN V. KENTUCKY, 309 U.S. 83, A STATE LAID AN AD VALOREM TAX
OF 50[ PER $100 ON DEPOSITS IN BANKS OUTSIDE THE STATE AND ONLY 10[ PER
$1,000 ON DEPOSITS WITHIN THE STATE.  THE CLASSIFICATION WAS SUSTAINED
AGAINST THE CHARGE OF INVIDIOUS DISCRIMINATION, THE COURT NOTING THAT
"IN TAXATION, EVEN MORE THAN IN OTHER FIELDS, LEGISLATURES POSSESS THE
GREATEST FREEDOM IN CLASSIFICATION."  ID., AT 88.  THERE IS A
PRESUMPTION OF CONSTITUTIONALITY WHICH CAN BE OVERCOME "ONLY BY THE
MOST EXPLICIT DEMONSTRATION THAT A CLASSIFICATION IS A HOSTILE AND
OPPRESSIVE DISCRIMINATION AGAINST PARTICULAR PERSONS AND CLASSES." 
IBID.  AND THE COURT ADDED, "THE BURDEN IS ON THE ONE ATTACKING THE
LEGISLATIVE ARRANGEMENT TO NEGATIVE EVERY CONCEIVABLE BASIS WHICH MIGHT
SUPPORT IT.  IBID. IT.  IBID.  THAT IDEA HAS BEEN ELABORATED.  THUS, IN
CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495, THE COURT, IN SUSTAINING
AN UNEMPLOYMENT TAX ON EMPLOYERS, /6/  SAID: 

     "A STATE LEGISLATURE, IN THE ENACTMENT OF LAWS, HAS THE WIDEST

  POSSIBLE LATITUDE WITHIN THE LIMITS OF THE CONSTITUTION.  IN THE

  NATURE OF THE CASE IT CANNOT RECORD A COMPLETE CATALOGUE OF THE

  CONSIDERATIONS WHICH MOVE ITS MEMBERS TO ENACT LAWS.  IN THE

  ABSENCE OF SUCH A RECORD COURTS CANNOT ASSUME THAT ITS ACTION IS

  CAPRICIOUS, OR THAT, WITH ITS INFORMED ACQUAINTANCE WITH LOCAL

  CONDITIONS TO WHICH THE LEGISLATION IS TO BE APPLIED IT WAS NOT

  AWARE OF FACTS WHICH AFFORD REASONABLE BASIS FOR ITS ACTION. 

  ONLY BY FAITHFUL ADHERENCE TO THIS GUIDING PRINCIPLE OF JUDICIAL

  REVIEW OF LEGISLATION IS IT POSSIBLE TO PRESERVE TO THE

  LEGISLATIVE BRANCH ITS RIGHTFUL INDEPENDENCE AND ITS ABILITY TO

  FUNCTION."  ID., AT 510. 

ILLINOIS TELLS US THAT THE INDIVIDUAL PERSONAL PROPERTY TAX WAS
DISCRIMINATORY, UNFAIR, ALMOST IMPOSSIBLE TO ADMINISTER, AND
ECONOMICALLY UNSOUND.  ASSESSMENT PRACTICES VARIED FROM DISTRICT TO
DISTRICT.  ABOUT A THIRD OF THE INDIVIDUALS PAID NO PERSONAL PROPERTY
TAXES AT ALL, WHILE THE REST PAID ON THEIR BANK ACCOUNTS, AUTOMOBILES,
HOUSEHOLD FURNITURE, AND OTHER RESOURCES, AND IN RURAL AREAS THEY PAID
ON THEIR LIVESTOCK, GRAIN, AND FARM IMPLEMENTS AS WELL.  AS RESPECTS
CORPORATIONS, THE STATE SAYS, THE TAX IS UNIFORMLY ENFORCEABLE. 
ILLINOIS SAYS, MOREOVER, THAT ART. IX-A IS ONLY THE FIRST STEP IN
TOTALLY ELIMINATING THE AD VALOREM PERSONAL PROPERTY TAX BY 1979 BUT
FOR FISCAL REASONS IT WAS IMPOSSIBLE TO ABOLISH THE TAX ALL AT ONCE. 
WE COULD STRIKE DOWN THIS TAX AS DISCRIMINATORY ONLY IF WE SUBSTITUTED
OUR JUDGMENT ON FACTS OF WHICH WE CAN BE ONLY DIMLY AWARE FOR A
LEGISLATIVE JUDGMENT THAT REFLECTS A VIVID REACTION TO PRESSING FISCAL
PROBLEMS.  QUAKER CITY CAB CO. V. PENNSYLVANIA IS ONLY A RELIC OF A
BYGONE ERA.  WE CANNOT FOLLOW IT AND STAY WITHIN THE NARROW CONFINES OF
JUDICIAL REVIEW, WHICH IS AN IMPORTANT PART OF OUR CONSTITUTIONAL
TRADITION. 

  REVERSED. 

/0/  TOGETHER WITH NO. 71-691, BARRETT, COUNTY CLERK OF COOK COUNTY,
ILLINOIS, ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

/0A/  RICHARD B. OGILVIE, GOVERNOR OF ILLINOIS, FILED A BRIEF AS
AMICUS CURIAE URGING REVERSAL IN NO. 71-685.  LOUIS ANCEL, STEWART H.
DIAMOND, AND SAMUEL W. WITWER FILED A BRIEF FOR PROVISO TOWNSHIP HIGH
SCHOOL DISTRICT NO. 209 ET AL. AS AMICI CURIAE URGING AFFIRMANCE IN
BOTH CASES.  WILLIAM R. DILLON FILED A BRIEF FOR MEMBERS OF THE
CORPORATE FIDUCIARIES ASSOCIATION OF ILLINOIS AS AMICI CURIAE IN BOTH
CASES. 

/1/  IN 1969, THE ILLINOIS LEGISLATURE HAD PROVIDED FOR THE
SUBMISSION OF THE PROPOSED AMENDMENT TO A REFERENDUM VOTE. 

/2/  THE RESULT WAS EITHER TO REVERSE WITH DIRECTIONS TO DISMISS THE
COMPLAINTS OR TO AFFIRM THE JUDGMENT THAT DISMISSED THE COMPLAINTS. 
THOSE TWO CASES WERE HEARD BY THE ILLINOIS SUPREME COURT ALONG WITH A
PETITION TO FILE ORIGINAL SUIT WITH THAT COURT BY ONE MAYNARD, WHO
OWNED NONBUSINESS PERSONAL PROPERTY, AND BY THREE SCHOOL DISTRICTS. 
THAT PETITION WAS DISMISSED. 

/3/  CLASSIC EXAMPLES ARE THE TAXES THAT DISCRIMINATED AGAINST
NEWSPAPERS, STRUCK DOWN UNDER THE FIRST AMENDMENT (GROSJEAN V. AMERICAN
PRESS CO., 297 U.S. 233) OR THAT DISCRIMINATED AGAINST INTERSTATE
COMMERCE (SEE MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S.
157) OR REQUIRED LICENSES TO ENGAGE IN INTERSTATE COMMERCE. 

/4/  SEE BOLLING V. SHARPE, 347 U.S. 497, DECIDED MAY 17, 1954,
WHICH HELD THAT FEDERAL DISCRIMINATION (IN THAT CASE RACIAL IN NATURE)
MAY BE SO ARBITRARY AS TO BE VIOLATIVE OF DUE PROCESS AS THE TERM IS
USED IN THE FIFTH AMENDMENT. 

/5/  IN ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S. 412, A
STATE CLASSIFIED CHAIN STORES FOR PURPOSES OF A CHAIN STORE TAX
ACCORDING TO THE NUMBER OF STORES-- INSIDE AND OUTSIDE THE STATE.  THE
COURT SUSTAINED THE TAX, SAYING:  "THE STATUTE BEARS EQUALLY UPON ALL
WHO FALL INTO THE SAME CLASS, AND THIS SATISFIES THE GUARANTY OF EQUAL
PROTECTION."  BD., AT 424.  IN CARMICHAEL V. SOUTHERN COAL CO., 301
U.S. 495, A STATE LAID AN UNEMPLOYMENT TAX ON EMPLOYERS, EXCLUDING,
INTER ALIA, AGRICULTURE, DOMESTIC SERVICE, CREWS OF VESSELS ON
NAVIGABLE WATERS, AND ELEEMOSYNARY INSTITUTIONS.  THE COURT SUSTAINED
THE TAX, SAYING:  "THIS COURT HAS REPEATEDLY HELD THAT INEQUALITIES
WHICH RESULT FROM A SINGLING OUT OF ONE PARTICULAR CLASS FOR TAXATION
OR EXEMPTION, INFRINGE NO CONSTITUTIONAL LIMITATION."  ID., AT 509. 
AND IT ADDED:  "A LEGISLATURE IS NOT BOUND TO TAX EVERY MEMBER OF A
CLASS OR NONE.  IT MAY MAKE DISTINCTIONS OF DEGREE HAVING A RATIONAL
BASIS, AND WHEN SUBJECTED TO JUDICIAL SCRUTINY THEY MUST BE PRESUMED TO
REST ON THAT BASIS IF THERE IS ANY CONCEIVABLE STATE OF FACTS WHICH
WOULD SUPPORT IT."  IBID. 

/6/ NOTE 5, SUPRA. 

WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, ARGUED THE CAUSE FOR
PETITIONER IN NO. 71-685.  WITH HIM ON THE BRIEFS WAS JAYNE A. CARR,
ASSISTANT ATTORNEY GENERAL.  AUBREY F. KAPLAN ARGUED THE CAUSE AND
FILED A BRIEF FOR PETITIONERS IN NO. 71-691. 

ARNOLD M. FLAMM ARGUED THE CAUSE FOR RESPONDENTS IN NO. 71-685. 
WITH HIM ON THE BRIEF WAS ARTHUR T. SUSMAN.  LOUIS L. BIRO ARGUED THE
CAUSE FOR RESPONDENTS IN NO. 71-691 AND FILED A BRIEF FOR CORPORATION
RESPONDENTS M. WEIL & SONS, INC., ET AL. GUST W. DICKETT FILED A BRIEF
FOR RESPONDENTS SHAPIRO ET AL. IN NO. 71-691.  EDWARD A. BERMAN, EUGENE
T. SHERMAN, AND LEWIS W. SCHLIFKIN FILED A BRIEF FOR PROPRIETOR
RESPONDENTS HERMAN, DBA THE SPOT, ET AL. IN BOTH CASES.  /0A/
..END :













OTTER TAIL POWER CO. V. UNITED STATES, 410 U.S. 366 


       OTTER TAIL POWER CO. V. UNITED STATES

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

   DISTRICT OF MINNESOTA

        NO. 71-991.  ARGUED DECEMBER 5, 1972-- DECIDED FEBRUARY 22,

           1973 


IN THIS SHERMAN ACT SUIT, BROUGHT BY THE GOVERNMENT, THE DISTRICT
COURT ENJOINED AS VIOLATIVE OF SEC. 2 THE FOLLOWING PRACTICES IN WHICH
APPELLANT, OTTER TAIL POWER CO. (OTTER TAIL), ENGAGED TO PREVENT TOWNS
FROM ESTABLISHING THEIR OWN POWER SYSTEMS WHEN OTTER TAIL'S RETAIL
FRANCHISE EXPIRED:  REFUSALS TO WHOLESALE POWER TO THE MUNICIPAL
SYSTEMS OR TRANSFER ("WHEEL") IT OVER OTTER TAIL'S FACILITIES FROM
OTHER SOURCES, LITIGATION INTENDED TO DELAY ESTABLISHMENT OF MUNICIPAL
SYSTEMS, AND INVOCATION OF TRANSMISSION CONTRACT PROVISIONS TO
FORESTALL SUPPLYING BY OTHER POWER COMPANIES.  HELD" 

1.  OTTER TAIL IS NOT INSULATED FROM ANTITRUST REGULATION BY REASON
OF THE FEDERAL POWER ACT, WHOSE LEGISLATIVE HISTORY MANIFESTS NO
PURPOSE TO MAKE THE ANTITRUST LAWS INAPPLICABLE TO POWER COMPANIES. 
THE ESSENTIAL THRUST OF THE AUTHORITY OF THE FEDERAL POWER COMMISSION
(FPC) IS TO ENCOURAGE VOLUNTARY INTERCONNECTIONS.  THOUGH THE FPC MAY
ORDER INTERCONNECTIONS IF "NECESSARY OR APPROPRIATE IN THE PUBLIC
INTEREST" ANTITRUST CONSIDERATIONS, THOUGH RELEVANT UNDER THAT
STANDARD, ARE NOT DETERMINATIVE.  P. 372-375. 

2.  THE DISTRICT COURT'S DECREE DOES NOT CONFLICT WITH THE
REGULATORY RESPONSIBILITIES OF THE FPC.  PP. 375-377. 

(A) THE COURT'S ORDER FOR WHEELING TO CORRECT OTTER TAIL'S
ANTICOMPETITIVE AND MONOPOLISTIC PRACTICES IS NOT COUNTER TO THE
AUTHORITY OF THE FPC, WHICH LACKS THE POWER TO IMPOSE SUCH A
REQUIREMENT.  PP. 375-376. 

(B) APPELLANT'S ARGUMENT THAT THE DECREE OVERRIDES FPC'S POWER OVER
INTERCONNECTIONS IS PREMATURE, THERE BEING NO PRESENT CONFLICT BETWEEN
THE COURT'S DECREE AND ANY CONTRARY RULING BY THE FPC.  PP. 376-377. 

3.  THE RECORD SUPPORTS THE DISTRICT COURT'S FINDINGS THAT OTTER T
TAIL-- SOLELY TO PREVENT THE MUNICIPAL SYSTEMS FROM ERODING ITS
MONOPOLISTIC POSITION-- REFUSED TO SELL AT WHOLESALE OR TO WHEEL, AND
THAT OTTER TAIL TO THE SAME END INVOKED RESTRICTIVE PROVISIONS IN ITS
CONTRACTS WITH THE BUREAU OF RECLAMATION AND OTHER SUPPLIERS, THE COURT
CORRECTLY CONCLUDING THAT SUCH PROVISIONS, PER SE, VIOLATED THE SHERMAN
ACT.  PP. 377-379. 

4.  THE DISTRICT COURT SHOULD DETERMINE ON REMAND WHETHER THE
LITIGATION THAT OTTER TAIL WAS FOUND TO HAVE INSTITUTED FOR THE PURPOSE
OF MAINTAINING ITS MONOPOLISTIC POSITION WAS "A MERE SHAM" WITHIN THE
MEANING OF EASTERN RAILROAD CONFERENCE V. NOERR MOTOR FREIGHT, 365 U.S.
127, SO THAT THE LITIGATION WOULD LOSE ITS CONSTITUTIONAL PROTECTION IN
LINE WITH THE COURT'S DECISION IN CALIFORNIA MOTOR TRANSPORT CO. V.
TRUCKING UNLIMITED, 404 U.S. 508, WHICH WAS DECIDED AFTER THE DISTRICT
COURT HAD ENTERED ITS DECREE.  PP. 379-380. 

5.  THE DISTRICT COURT'S RETENTION OF JURISDICTION TO AFFORD THE
PARTIES "NECESSARY AND APPROPRIATE RELIEF" PROVIDES AN ADEQUATE
SAFEGUARD AGAINST THE POSSIBILITY THAT COMPULSORY INTERCONNECTIONS OR
WHEELING MIGHT THREATEN OTTER TAIL'S ABILITY ADEQUATELY TO SERVE THE
PUBLIC.  PP. 380-382. 

331 F.SUPP.  54, AFFIRMED IN PART AND VACATED AND REMANDED IN PART. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
WHITE, AND MARSHALL, JJ., JOINED.  STEWART, J., FILED AN OPINION
CONCURRING IN PART AND DISSENTING IN PART, IN WHICH BURGER, C. J., AND
REHNQUIST, J., JOINED, POST, P. 382.  BLACKMUN AND POWELL, JJ., TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN THIS CIVIL ANTITRUST SUIT BROUGHT BY APPELLEE AGAINST OTTER TAIL
POWER CO. (OTTER TAIL), AN ELECTRIC UTILITY COMPANY, THE DISTRICT COURT
FOUND THAT OTTER TAIL HAD ATTEMPTED TO MONOPOLIZE AND HAD MONOPOLIZED
THE RETAIL DISTRIBUTION OF ELECTRIC POWER IN ITS SERVICE AREA IN
VIOLATION OF SEC. 2 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15
U.S.C. 2.  THE DISTRICT COURT FOUND THAT OTTER TAIL HAD ATTEMPTED TO
PREVENT COMMUNITIES IN WHICH ITS RETAIL DISTRIBUTION FRANCHISE HAD
EXPIRED FROM REPLACING IT WITH A MUNICIPAL DISTRIBUTION SYSTEM.  THE
PRINCIPAL MEANS EMPLOYED WERE (1) REFUSALS TO SELL POWER AT WHOLESALE
TO PROPOSED MUNICIPAL SYSTEMS IN THE COMMUNITIES WHERE IT HAD BEEN
RETAILING POWER; (2) REFUSALS TO "WHEEL" POWER TO SUCH SYSTEMS, THAT IS
TO SAY, TO TRANSFER BY DIRECT TRANSMISSION OR DISPLACEMENT ELECTRIC
POWER FROM ONE UTILITY TO ANOTHER OVER THE FACILITIES OF AN
INTERMEDIATE UTILITY; (3) THE INSTITUTION AND SUPPORT OF LITIGATION
DESIGNED TO PREVENT OR DELAY ESTABLISHMENT OF THOSE SYSTEMS AND (4) THE
INVOCATION OF PROVISIONS IN ITS TRANSMISSION CONTRACTS WITH SEVERAL
OTHER POWER SUPPLIERS FOR THE PURPOSE OF DENYING THE MUNICIPAL SYSTEMS
ACCESS TO OTHER SUPPLIERS BY MEANS OF OTTER TAIL'S TRANSMISSION
SYSTEMS. 

OTTER TAIL SELLS ELECTRIC POWER AT RETAIL IN 465 TOWNS IN MINNESOTA,
NORTH DAKOTA, AND SOUTH DAKOTA.  THE DISTRICT COURT'S DECREE ENJOINS IT
FROM REFUSING TO SELL ELECTRIC POWER AT WHOLESALE TO EXISTING OR
PROPOSED MUNICIPAL ELECTRIC POWER SYSTEMS IN THE AREAS SERVICED BY
OTTER TAIL, FROM REFUSING TO WHEEL ELECTRIC POWER OVER THE LINES FROM
THE ELECTRIC POWER SUPPLIERS TO EXISTING OR PROPOSED MUNICIPAL SYSTEMS
IN THE AREA, FROM ENTERING INTO OR ENFORCING ANY CONTRACT WHICH
PROHIBITS USE OF OTTER TAIL'S LINES TO WHEEL ELECTRIC POWER TO
MUNICIPAL ELECTRIC POWER SYSTEMS, OR FROM ENTERING INTO OR ENFORCING
ANY CONTRACT WHICH LIMITS THE CUSTOMERS TO WHOM AND AREAS IN WHICH
OTTER TAIL OR ANY OTHER ELECTRIC POWER COMPANY MAY SELL ELECTRIC
POWER. 

THE DECREE ALSO ENJOINS OTTER TAIL FROM INSTITUTING, SUPPORTING, OR
ENGAGING IN LITIGATION, DIRECTLY OR INDIRECTLY, AGAINST MUNICIPALITIES
AND THEIR OFFICIALS WHO HAVE VOTED TO ESTABLISH MUNICIPAL ELECTRIC
POWER SYSTEMS FOR THE PURPOSE OF DELAYING, PREVENTING, OR INTERFERING
WITH THE ESTABLISHMENT OF A MUNICIPAL ELECTRIC POWER SYSTEM.  331
F.SUPP.  54.  OTTER TAIL TOOK A DIRECT APPEAL TO THIS COURT UNDER SEC.
2 OF THE EXPEDITING ACT, AS AMENDED, 62 STAT. 989, 15 U.S.C. 29; AND WE
NOTED PROBABLE JURISDICTION, 406 U.S. 944. 

IN TOWNS WHERE OTTER TAIL DISTRIBUTES AT RETAIL, IT OPERATES UNDER
MUNICIPALLY GRANTED FRANCHISES WHICH ARE LIMITED FROM 10 TO 20 YEARS. 
EACH TOWN IN OTTER TAIL'S SERVICE AREA GENERALLY CAN ACCOMMODATE ONLY
ONE DISTRIBUTION SYSTEM, MAKING EACH TOWN A NATURAL MONOPOLY MARKET FOR
THE DISTRIBUTION AND SALE OF ELECTRIC POWER AT RETAIL.  THE AGGREGATE
OF TOWNS IN OTTER TAIL'S SERVICE AREA IS THE GEOGRAPHIC MARKET IN WHICH
OTTER TAIL COMPETES FOR THE RIGHT TO SERVE THE TOWNS AT RETAIL.  /1/
THAT COMPETITION IS GENERALLY FOR THE RIGHT TO SERVE THE ENTIRE RETAIL
MARKET WITHIN THE COMPOSITE LIMITS OF A TOWN, AND THAT COMPETITION IS
GENERALLY BETWEEN OTTER TAIL AND A PROSPECTIVE OR EXISTING MUNICIPAL
SYSTEM.  THESE TOWNS NUMBER 510 AND OF THOSE OTTER TAIL SERVES 91%, OR
465. 

OTTER TAIL'S POLICY IS TO ACQUIRE, WHEN IT CAN, EXISTING MUNICIPAL
SYSTEMS WITHIN ITS SERVICE AREAS.  IT HAS ACQUIRED SIX SINCE 1947. 
BETWEEN 1945 AND 1970, THERE WERE CONTESTS IN 12 TOWNS SERVED BY OTTER
TAIL OVER PROPOSALS TO REPLACE IT WITH MUNICIPAL SYSTEMS.  IN ONLY
THREE-- ELBOW LAKE, MINNESOTA, COLMAN, SOUTH DAKOTA, AND AURORA, SOUTH
DAKOTA-- WERE MUNICIPAL SYSTEMS ACTUALLY ESTABLISHED.  PROPOSED
MUNICIPAL SYSTEMS HAVE GREAT OBSTACLES; THEY MUST PURCHASE THE ELECTRIC
POWER AT WHOLESALE.  TO DO SO THEY MUST HAVE ACCESS TO EXISTING
TRANSMISSION LINES.  THE ONLY ONES AVAILABLE /2/  BELONG TO OTTER
TAIL.  WHILE THE BUREAU OF RECLAMATION HAS HIGH-VOLTAGE BULK-POWER
SUPPLY LINES IN THE AREA, IT DOES NOT OPERATE A SUBTRANSMISSION
NETWORK, BUT RELIES ON WHEELING CONTRACTS WITH OTTER TAIL AND OTHER
UTILITIES TO DELIVER POWER FOR ITS BULK SUPPLY LINES TO ITS WHOLESALE
CUSTOMERS.  /3/ 

THE ANTITRUST CHARGE AGAINST OTTER TAIL DOES NOT INVOLVE THE
LAWFULNESS OF ITS RETAIL OUTLETS, BUT ONLY ITS METHODS OF PREVENTING
THE TOWNS IT SERVED FROM ESTABLISHING THEIR OWN MUNICIPAL SYSTEMS WHEN
OTTER TAIL'S FRANCHISES EXPIRED.  THE CRITICAL EVENTS CENTERED LARGELY
IN FOUR TOWNS-- ELBOW LAKE, MINNESOTA, HANKINSON, NORTH DAKOTA, COLMAN,
SOUTH DAKOTA, AND AURORA, SOUTH DAKOTA.  WHEN OTTER TAIL'S FRANCHISE IN
EACH OF THESE TOWNS TERMINATED, THE CITIZENS VOTED TO ESTABLISH A
MUNICIPAL DISTRIBUTION SYSTEM.  OTTER TAIL REFUSED TO SELL THE NEW
SYSTEMS ENERGY AT WHOLESALE AND REFUSED TO AGREE TO WHEEL POWER FROM
OTHER SUPPLIERS OF WHOLESALE ENERGY. 

COLMAN AND AURORA HAD ACCESS TO OTHER TRANSMISSION.  AGAINST THEM,
OTTER TAIL USED THE WEAPON OF LITIGATION. 

AS RESPECTS ELBOW LAKE AND HANKINSON, OTTER TAIL SIMPLY REFUSED TO
DEAL, ALTHOUGH ACCORDING TO THE FINDINGS IT HAD THE ABILITY TO DO SO.
ELBOW LAKE, CUT OFF FROM ALL SOURCES OF WHOLESALE POWER, CONSTRUCTED
ITS OWN GENERATING PLANT.  BOTH ELBOW LAKE AND HANKINSON REQUESTED THE
BUREAU OF RECLAMATION AND VARIOUS COOPERATIVES TO FURNISH THEM WITH
WHOLESALE POWER; THEY WERE WILLING TO SUPPLY IT IF OTTER TAIL WOULD
WHEEL IT.  BUT OTTER TAIL REFUSED, RELYING ON PROVISIONS IN ITS
CONTRACTS WHICH BARRED THE USE OF ITS LINES FOR WHEELING POWER TO TOWNS
WHICH IT HAD SERVED AT RETAIL.  ELBOW LAKE AFTER COMPLETING ITS PLANT
ASKED THE FEDERAL POWER COMMISSION, UNDER SEC. 202(B) OF THE FEDERAL
POWER ACT, 49 STAT. 848, 16 U.S.C. 824AB), TO REQUIRE OTTER TAIL TO
INTERCONNECT WITH THE TOWN AND SELL IT POWER AT WHOLESALE.  THE FEDERAL
POWER COMMISSION ORDERED FIRST A TEMPORARY /4/  AND THEN A PERMANENT
CONNECTION.  /5/  HANKINSON TRIED UNSUCCESSFULLY UNSUCCESSFULLY TO GET
RELIEF FROM THE NORTH DAKOTA COMMISSION AND THEN FILED A COMPLAINT WITH
THE FEDERAL COMMISSION SEEKING AN ORDER TO COMPEL OTTER TAIL TO WHEEL. 
WHILE THE APPLICATION WAS PENDING, THE TOWN COUNCIL VOTED TO WITHDRAW
IT AND SUBSEQUENTLY RENEWED OTTER TAIL'S FRANCHISE. 

IT WAS FOUND THAT OTTER TAIL INSTITUTED OR SPONSORED LITIGATION
INVOLVING FOUR TOWNS IN ITS SERVICE AREA WHICH HAD THE EFFECT OF
HALTING OR DELAYING EFFORTS TO ESTABLISH MUNICIPAL SYSTEMS.  MUNICIPAL
POWER SYSTEMS ARE FINANCED BY THE SALE OF ELECTRIC REVENUE BONDS. 
BEFORE SUCH BONDS CAN BE SOLD, THE TOWN'S ATTORNEY MUST SUBMIT AN
OPINION WHICH INCLUDES A STATEMENT THAT THERE IS NO PENDING OR
THREATENED LITIGATION WHICH MIGHT IMPAIR THE VALUE OR LEGALITY OF THE
BONDS.  THE RECORD AMPLY BEARS OUT THE DISTRICT COURT'S HOLDING THAT
OTTER TAIL'S USE OF LITIGATION HALTED OR APPRECIABLY SLOWED THE EFFORTS
FOR MUNICIPAL OWNERSHIP.  "THE DELAY THUS OCCASIONED AND THE LARGE
FINANCIAL BURDEN IMPOSED ON THE TOWNS' LIMITED TREASURY DAMPENED LOCAL
ENTHUSIASM FOR PUBLIC OWNERSHIP."  331 F.SUPP.  54, 62. 

        I 

OTTER TAIL CONTENDS THAT BY REASON OF THE FEDERAL POWER ACT IT IS
NOT SUBJECT TO ANTITRUST REGULATION WITH RESPECT TO ITS REFUSAL TO
DEAL.  WE DISAGREE WITH THAT POSITION. 

"REPEALS OF THE ANTITRUST LAWS BY IMPLICATION FROM A REGULATORY
STATUTE ARE STRONGLY DISFAVORED, AND HAVE ONLY BEEN FOUND IN CASES OF
PLAIN REPUGNANCY BETWEEN THE ANTITRUST AND REGULATORY PROVISIONS." 
UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 350-351. 
SEE ALSO SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S. 341, 357-361. 
ACTIVITIES WHICH COME UNDER THE JURISDICTION OF A REGULATORY AGENCY
NEVERTHELESS MAY BE SUBJECT TO SCRUTINY UNDER THE ANTITRUST LAWS. 

IN CALIFORNIA V. FPC, 369 U.S. 482, 489, THE COURT HELD THAT
APPROVAL OF AN ACQUISITION OF THE ASSETS OF A NATURAL GAS COMPANY BY
THE FEDERAL POWER COMMISSION PURSUANT TO SEC. 7 OF THE NATURAL GAS ACT
"WOULD BE NO BAR TO (AN) ANTITRUST SUIT."  UNDER SEC. 7, THE STANDARD
FOR APPROVING SUCH ACQUISITIONS IS "PUBLIC CONVENIENCE AND NECESSITY." 
ALTHOUGH THE IMPACT ON COMPETITION IS RELEVANT TO THE COMMISSION'S
DETERMINATION, THE COURT NOTED THAT THERE WAS "NO PERVASIVE REGULATORY
SCHEME' INCLUDING THE ANTITRUST LAWS THAT HAD) BEEN ENTRUSTED TO THE
COMMISSION."  ID., AT 485.  SIMILARLY, IN UNITED STATES V. RADIO CORP.
OF AMERICA, 358 U.S. 334, THE COURT HELD THAT AN EXCHANGE OF RADIO
STATIONS THAT HAD BEEN APPROVED BY THE FEDERAL COMMISSIONS COMMISSION
AS IN THE "PUBLIC INTEREST" WAS SUBJECT TO ATTACK IN AN ANTITRUST
PROCEEDING. 

THE DISTRICT COURT DETERMINED THAT OTTER TAIL'S CONSISTENT REFUSALS
TO WHOLESALE OR WHEEL POWER TO ITS MUNICIPAL CUSTOMERS CONSTITUTED
ILLEGAL MONOPOLIZATION.  OTTER TAIL MAINTAINS HERE THAT ITS REFUSALS TO
DEAL SHOULD BE IMMUNE FROM ANTITRUST PROSECUTION BECAUSE THE FEDERAL
POWER COMMISSION HAS THE AUTHORITY TO COMPEL INVOLUNTARY
INTERCONNECTIONS OF POWER PURSUANT TO SEC. 202(B) OF THE FEDERAL POWER
ACT.  THE ESSENTIAL THRUST OF SEC. 202, HOWEVER, IS TO ENCOURAGE
VOLUNTARY INTERCONNECTIONS OF POWER.  SEE S. REP. NO. 621, 74TH CONG.,
1ST SESS., 19-20, 48-49; H.R. REP. NO. 1318, 74TH CONG., 1ST SESS., 8. 
ONLY IF A POWER COMPANY REFUSES TO INTERCONNECT VOLUNTARILY MAY THE
FEDERAL POWER COMMISSION, SUBJECT TO LIMITATIONS UNRELATED TO ANTITRUST
CONSIDERATIONS, ORDER THE INTERCONNECTION.  THE STANDARD WHICH GOVERNS
ITS DECISION IS WHETHER SUCH ACTION IS "NECESSARY OR APPROPRIATE IN THE
PUBLIC INTEREST."  ALTHOUGH ANTITRUST CONSIDERATIONS MAY BE RELEVANT,
THEY ARE NOT DETERMINATIVE. 

THERE IS NOTHING IN THE LEGISLATIVE HISTORY WHICH REVEALS A PURPOSE
TO INSULATE ELECTRIC POWER COMPANIES FROM THE OPERATION OF THE
ANTITRUST LAWS.  TO THE CONTRARY, THE HISTORY OF PART II OF THE FEDERAL
POWER ACT INDICATES AN OVERRIDING POLICY OF MAINTAINING COMPETITION TO
THE MAXIMUM EXTENT POSSIBLE CONSISTENT WITH THE PUBLIC INTEREST.  AS
ORIGINALLY CONCEIVED, PART II WOULD HAVE INCLUDED A "COMMON CARRIER"
PROVISION MAKING IT "THE DUTY OF EVERY PUBLIC UTILITY TO . . . TRANSMIT
ENERGY FOR ANY PERSON UPON REASONABLE REQUEST . . . "  IN ADDITION, IT
WOULD HAVE EMPOWERED THE FEDERAL POWER COMMISSION TO ORDER WHEELING IF
IT FOUND SUCH ACTION TO BE "NECESSARY OR DESIRABLE IN THE PUBLIC
INTEREST."  H.R. 5423, 74TH CONG., 1ST SESS.; S. 1725, 74TH CONG., 1ST
SESS.  THESE PROVISIONS WERE ELIMINATED TO PRESERVE "THE VOLUNTARY
ACTION OF THE UTILITIES."  S. REP. NO. 621, 74TH CONG., 1ST SESS., 19. 

IT IS CLEAR, THEN, THAT CONGRESS REJECTED A PERVASIVE REGULATORY
SCHEME FOR CONTROLLING THE INTERSTATE DISTRIBUTION OF POWER IN FAVOR OF
VOLUNTARY COMMERCIAL RELATIONSHIPS.  WHEN THESE RELATIONSHIPS ARE
GOVERNED IN THE FIRST INSTANCE BY BUSINESS JUDGMENT AND NOT REGULATORY
COERCION, COURTS MUST BE HESITANT TO CONCLUDE THAT CONGRESS INTENDED TO
OVERRIDE THE FUNDAMENTAL NATIONAL POLICIES EMBODIED IN THE ANTITRUST
LAWS.  SEE UNITED STATES V. RADIO CORP. OF AMERICA, SUPRA, AT 351. 
THIS IS PARTICULARLY TRUE IN THIS INSTANCE BECAUSE CONGRESS, IN PASSING
THE PUBLIC UTILITY HOLDING COMPANY ACT, WHICH INCLUDED PART II OF THE
FEDERAL POWER ACT, WAS CONCERNED WITH "RESTRAINT OF FREE AND
INDEPENDENT COMPETITION" AMONG PUBLIC UTILITY HOLDING COMPANIES.  SEE
15 U.S.C. 79AB)(2). 

THUS, THERE IS NO BASIS FOR CONCLUDING THAT THE LIMITED AUTHORITY OF
THE FEDERAL POWER COMMISSION TO ORDER INTERCONNECTIONS WAS INTENDED TO
BE A SUBSTITUTE FOR, OR TO IMMUNIZE OTTER TAIL FROM, ANTITRUST
REGULATION FOR REFUSING TO DEAL WITH MUNICIPAL CORPORATIONS. 

        II 

THE DECREE OF THE DISTRICT COURT ENJOINS OTTER TAIL FROM "(REFUSING
TO SELL ELECTRIC POWER AT WHOLESALE TO EXISTING OR PROPOSED MUNICIPAL
ELECTRIC POWER SYSTEMS IN CITIES AND TOWNS LOCATED IN (ITS SERVICE
AREA)" AND FROM REFUSING TO WHEEL ELECTRIC POWER OVER ITS TRANSMISSION
LINES FROM OTHER ELECTRIC POWER LINES TO SUCH CITIES AND TOWNS.  BUT
THE DECREE GOES ON TO PROVIDE: 

     "THE DEFENDANT SHALL NOT BE COMPELLED BY THE JUDGMENT IN THIS

CASE TO FURNISH WHOLESALE ELECTRIC SERVICE OR WHEELING SERVICE TO

  A MUNICIPALITY EXCEPT AT RATES WHICH ARE COMPENSATORY AND UNDER

  TERMS AND CONDITIONS WHICH ARE FILED WITH AND SUBJECT TO APPROVAL

  BY THE FEDERAL POWER COMMISSION." 

SO FAR AS WHEELING IS CONCERNED, THERE IS NO AUTHORITY GRANTED THE
COMMISSION UNDER PART II OF THE FEDERAL POWER ACT TO ORDER IT, FOR THE
BILLS ORIGINALLY INTRODUCED CONTAINED COMMON CARRIER PROVISIONS WHICH
WERE DELETED.  /6/  THE ACT AS PASSED CONTAINED ONLY THE
INTERCONNECTION PROVISION SET FORTH IN SEC. 202(B).  /7/  THE COMMON
CARRIER PROVISION IN THE ORIGINAL BILL AND THE POWER TO DIRECT WHEELING
WERE LEFT TO THE "VOLUNTARY COORDINATION OF ELECTRIC FACILITIES."  /8/
INSOFAR AS THE DISTRICT COURT ORDERED WHEELING TO CORRECT
ANTICOMPETITIVE AND MONOPOLISTIC PRACTICES OF OTTER TAIL, THERE IS NO
CONFLICT WITH THE AUTHORITY OF THE FEDERAL POWER COMMISSION. 

AS RESPECTS THE ORDERING OF INTERCONNECTIONS, THERE IS NO CONFLICT
ON THE PRESENT RECORD.  ELBOW LAKE APPLIED TO THE FEDERAL POWER
COMMISSION FOR AN INTERCONNECTION WITH OTTER TAIL AND, AS WE HAVE SAID,
OBTAINED IT.  HANKINSON RENEWED OTTER TAIL'S FRANCHISE.  SO THE DECREE
OF THE DISTRICT COURT, AS FAR AS THE PRESENT RECORD IS CONCERNED,
PRESENTS NO ACTUAL CONFLICT BETWEEN THE FEDERAL JUDICIAL DECREE AND AN
ORDER OF THE FEDERAL POWER COMMISSION.  THE ARGUMENT CONCERNING THE PRE
EMPTION OF THE AREA BY THE FEDERAL POWER COMMISSION CONCERNS ONLY
INSTANCES WHICH MAY ARISE IN THE FUTURE, IF OTTER TAIL CONTINUES ITS
HOSTILE ATTITUDE AND CONDUCT AGAINST "EXISTING OR PROPOSED MUNICIPAL
ELECTRIC POWER SYSTEMS."  THE DECREE OF THE DISTRICT COURT HAS AN OPEN
END BY WHICH THAT COURT RETAINS JURISDICTION "NECESSARY OR APPROPRIATE"
TO CARRY OUT THE DECREE OR "FOR THE MODIFICATION OF ANY OF THE
PROVISIONS."  IT ALSO CONTEMPLATES THAT FUTURE DISPUTES OVER
INTERCONNECTIONS AND THE TERMS AND CONDITIONS GOVERNING THOSE
INTERCONNECTIONS WILL BE SUBJECT TO FEDERAL POWER COMMISSION PERUSAL. 
IT WILL BE TIME ENOUGH TO CONSIDER WHETHER THE ANTITRUST REMEDY MAY
OVERRIDE THE POWER OF THE COMMISSION UNDER SEC. 202(B) AS, IF, AND WHEN
THE COMMISSION DENIES THE INTERCONNECTION AND THE DISTRICT COURT
NEVERTHELESS UNDERTAKES TO DIRECT IT.  AT PRESENT, THERE IS ONLY A
POTENTIAL CONFLICT, NOT A PRESENT CONCRETE CASE OR CONTROVERSY
CONCERNING IT.

        III 

THE RECORD MAKES ABUNDANTLY CLEAR THAT OTTER TAIL USED ITS MONOPOLY
POWER IN THE TOWNS IN ITS SERVICE AREA TO FORECLOSE COMPETITION OR GAIN
A COMPETITIVE ADVANTAGE, OR TO DESTROY A COMPETITOR, ALL IN VIOLATION
OF THE ANTITRUST LAWS.  SEE UNITED STATES V. GRIFFITH, 334 US.
100,107.  THE DISTRICT COURT DETERMINED THAT OTTER TAIL HAS "A
STRATEGIC DOMINANCE IN THE TRANSMISSION OF POWER IN MOST OF ITS SERVICE
AREA" AND THAT IT USED THIS DOMINANCE TO FORECLOSE POTENTIAL ENTRANTS
INTO THE RETAIL AREA FROM OBTAINING ELECTRIC POWER FROM OUTSIDE SOURCES
OF SUPPLY.  331 F.SUPP.,AT 60.  USE OF MONOPOLY POWER "TO DESTROY
THREATENED COMPETITION" IS A VIOLATION OF THE "ATTEMPT TO MONOPOLIZE"
CLAUSE OF SEC. 2 OF THE SHERMAN ACT.  LORAIN JOURNAL V. UNITED STATES,
342 U.S. 143, 154; EASTMAN KODAK CO. V. SOUTHERN PHOTO MATERIALS CO.,
273 U.S. 359, 375.  SO ARE AGREEMENTS NOT TO COMPETE, WITH THE AIM OF
PRESERVING OR EXTENDING A MONOPOLY.  SCHINE CHAIN THEATRES V. UNITED
STATES, 334 U.S. 110, 119.  IN ASSOCIATED PRESS V. UNITED STATES, 326
U.S. 1, A COOPERATIVE NEWS ASSOCIATION HAD BYLAWS THAT PERMITTED MEMBER
NEWSPAPERS TO BAR COMPETITORS FROM JOINING THE ASSOCIATION.  WE HELD
THAT THAT PRACTICE VIOLATED THE SHERMAN ACT, EVEN THOUGH THE
TRANSGRESSOR "HAD NOT YET ACHIEVED A COMPLETE MONOPOLY."  ID., AT 13. 

WHEN A COMMUNITY SERVICED BY OTTER TAIL DECIDES NOT TO RENEW OTTER
TAIL'S RETAIL FRANCHISE WHEN IT EXPIRES, IT MAY GENERATE, TRANSMIT, AND
DISTRIBUTE ITS OWN ELECTRIC POWER.  WE RECENTLY DESCRIBED THE
DIFFICULTIES AND PROBLEMS OF THOSE ISOLATED ELECTRIC POWER SYSTEMS. 
SEE GAINESVILLE UTILITIES V. FLORIDA POWER CORP., 402 U.S. 515, 517
520.  INTERCONNECTION WITH OTHER UTILITIES IS FREQUENTLY THE ONLY
SOLUTION.  ID., AT 519 N. 3.  THAT IS WHAT ELBOW LAKE IN THE PRESENT
CASE DID.  THERE WERE NO ENGINEERING FACTORS THAT PREVENTED OTTER TAIL
FROM SELLING POWER AT WHOLESALE TO THOSE TOWNS THAT WANTED MUNICIPAL
PLANTS OR WHEELING THE POWER.  THE DISTRICT COURT FOUND-- AND ITS
FINDINGS ARE SUPPORTED-- THAT OTTER TAIL'S REFUSALS TO SELL AT
WHOLESALE OR TO WHEEL WERE SOLELY TO PREVENT MUNICIPAL POWER SYSTEMS
FROM ERODING ITS MONOPOLISTIC POSITION. 

OTTER TAIL RELIES ON ITS WHEELING CONTRACTS WITH THE BUREAU OF
RECLAMATION AND WITH COOPERATIVES WHICH IT SAYS RELIEVE IT OF ANY DUTY
TO WHEEL POWER TO MUNICIPALITIES SERVED AT RETAIL BY OTTER TAIL AT THE
TIME THE CONTRACTS WERE MADE.  THE DISTRICT COURT HELD THAT THESE
RESTRICTIVE PROVISIONS WERE "IN REALITY, TERRITORIAL ALLOCATION
SCHEMES," 331 F.SUPP.,AT 63, AND WERE PER SE VIOLATIONS OF THE SHERMAN
ACT, CITING NORTHERN PACIFIC R. CO. V. UNITED STATES, 356 U.S. 1.  LIKE
COVENANTS WERE THERE HELD TO "DENY DEFENDANT'S COMPETITORS ACCESS TO
THE FENCED-OFF MARKET ON THE SAME TERMS AS THE DEFENDANT."  ID., AT
12.  WE RECENTLY RE-EMPHASIZED THE VICE UNDER THE SHERMAN ACT OF
TERRITORIAL RESTRICTIONS AMONG POTENTIAL COMPETITORS.  UNITED STATES V.
TOPCO ASSOCIATES, 405 U.S. 596, 608.  THE FACT THAT SOME OF THE
RESTRICTIVE PROVISIONS WERE CONTAINED IN A CONTRACT WITH THE BUREAU OF
RECLAMATION RECLAMATION IS NOT MATERIAL TO OUR PROBLEM FOR, AS THE
SOLICITOR GENERAL SAYS, "GOVERNMENT CONTRACTING OFFICERS DO NOT HAVE
THE POWER TO GRANT IMMUNITY FROM THE SHERMAN ACT."  SUCH CONTRACTS
STAND ON THEIR OWN FOOTING AND ARE VALID OR NOT, DEPENDING ON THE
STATUTORY FRAMEWORK WITHIN WHICH THE FEDERAL AGENCY OPERATES.  THE
SOLICITOR GENERAL TELLS US THAT THESE RESTRICTIVE PROVISIONS OPERATE AS
A "HINDRANCE" TO THE BUREAU AND WERE "AGREED TO BY THE BUREAU ONLY AT
OTTER TAIL'S INSISTENCE," AS THE DISTRICT COURT FOUND.  THE EVIDENCE
SUPPORTS THAT FINDING. 

        IV 

THE DISTRICT COURT FOUND THAT THE LITIGATION SPONSORED BY OTTER TAIL
HAD THE PURPOSE OF DELAYING AND PREVENTING THE ESTABLISHMENT OF
MUNICIPAL ELECTRIC SYSTEMS "WITH THE EXPECTATION THAT THIS WOULD
PRESERVE ITS PREDOMINANT POSITION IN THE SALE AND TRANSMISSION OF
ELECTRIC POWER IN THE AREA."  /9/  331 F.SUPP.,AT 62.  THE DISTRICT
COURT IN DISCUSSING EASTERN RAILROAD CONFERENCE V. NOERR MOTOR FREIGHT,
365 U.S. 127, EXPLAINED THAT IT WAS APPLICABLE "ONLY TO EFFORTS AIMED
AT INFLUENCING THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE
GOVERNMENT."  IBID.  THAT WAS WRITTEN BEFORE WE DECIDED CALIFORNIA
MOTOR TRANSPORT CO. V. TRUCKING UNLIMITED, 404 U.S 508, 513, WHERE WE
HELD THAT THE PRINCIPLE OF NOERR MAY ALSO APPLY TO THE USE OF
ADMINISTRATIVE OR JUDICIAL PROCESSES WHERE THE PURPOSE TO SUPPRESS
COMPETITION IS EVIDENCED BY REPETITIVE LAWSUITS CARRYING THE HALLMARK
OF INSUBSTANTIAL CLAIMS AND THUS IS WITHIN THE "MERE SHAM" EXCEPTION
ANNOUNCED IN NOERR.  365 U.S.,AT 144.  ON THAT PHASE OF THE ORDER, WE
VACATE AND REMAND FOR CONSIDERATION IN LIGHT OF OUR INTERVENING
DECISION IN CALIFORNIA MOTOR TRANSPORT CO.

        V 

OTTER TAIL ARGUES THAT, WITHOUT THE WEAPONS WHICH IT USED, MORE AND
MORE MUNICIPALITIES WILL TURN TO PUBLIC POWER AND OTTER TAIL WILL GO
DOWNHILL.  THE ARGUMENT IS A FAMILIAR ONE.  IT WAS MADE IN UNITED
STATES V. ARNOLD, SCHWINN & CO., 388 U.S. 365, A CIVIL SUIT UNDER SEC.
1 OF THE SHERMAN ACT DEALING WITH A RESTRICTIVE DISTRIBUTION PROGRAM
AND PRACTICES OF A BICYCLE MANUFACTURER.  WE SAID:  "THE PROMOTION OF
SELF-INTEREST ALONE DOES NOT INVOKE THE RULE OF REASON TO IMMUNIZE
OTHERWISE ILLEGAL CONDUCT."  ID., AT 375. 

THE SAME MAY PROPERLY BE SAID OF SEC. 2 CASES UNDER THE SHERMAN
ACT.  THAT ACT ASSUMES THAT AN ENTERPRISE WILL PROTECT ITSELF AGAINST
LOSS BY OPERATING WITH SUPERIOR SERVICE, LOWER COSTS, AND IMPROVED
EFFICIENCY.  OTTER TAIL'S THEORY COLLIDED WITH THE SHERMAN ACT AS IT
SOUGHT TO SUBSTITUTE FOR COMPETITION ANTICOMPETITIVE USES OF ITS
DOMINANT ECONOMIC POWER.  /10/ 

THE FACT THAT THREE MUNICIPALITIES WHICH OTTER TAIL OPPOSED FINALLY
GOT THEIR MUNICIPAL SYSTEMS DOES NOT EXCUSE OTTER TAIL'S CONDUCT.  THAT
FACT DOES NOT CONDONE THE ANTITRUST TACTICS WHICH OTTER TAIL SOUGHT TO
IMPOSE.  MOREOVER, THE DISTRICT COURT REPEATED WHAT WE SAID IN FTC V.
NATIONAL LEAD CO., 352 U.S. 419, 431, "THOSE CAUGHT VIOLATING THE ACT
MUST EXPECT SOME FENCING IN."  THE PROCLIVITY FOR PREDATORY PRACTICES
HAS ALWAYS BEEN A CONSIDERATION FOR THE DISTRICT COURT IN FASHIONING
ITS ANTITRUST DECREE.  SEE UNITED STATES V. CRESCENT AMUSEMENT CO., 323
U.S. 173, 190. 

WE DO NOT SUGGEST, HOWEVER, THAT THE DISTRICT COURT, CONCLUDING THAT
OTTER TAIL VIOLATED THE ANTITRUST LAWS, SHOULD BE IMPERVIOUS TO OTTER
TAIL'S ASSERTION THAT COMPULSORY INTERCONNECTION OR WHEELING WILL ERODE
ITS INTEGRATED SYSTEM AND THREATEN ITS CAPACITY TO SERVE ADEQUATELY THE
PUBLIC.  AS THE DISSENT PROPERLY NOTES, THE COMMISSION MAY NOT ORDER
INTERCONNECTION IF TO DO SO "WOULD IMPAIR (THE UTILITY'S) ABILITY TO
RENDER ADEQUATE SERVICE TO ITS CUSTOMERS."  16 U.S.C. 824AB).  THE
DISTRICT COURT IN THIS CASE FOUND THAT THE "PESSIMISTIC VIEW" ADVANCED
IN OTTER TAIL'S "EROSION STUDY" "IS NOT SUPPORTED BY THE RECORD." 
FURTHERMORE, IT CONCLUDED THAT "IT DOES NOT APPEAR THAT BUREAU OF
RECLAMATION POWER IS A SERIOUS THREAT TO THE DEFENDANT NOR THAT IT WILL
BE IN THE FORESEEABLE FUTURE."  SINCE THE DISTRICT COURT HAS MADE
FUTURE CONNECTIONS SUBJECT TO COMMISSION APPROVAL AND IN ANY EVENT HAS
RETAINED JURISDICTION TO ENABLE THE PARTIES TO APPLY FOR "NECESSARY OR
APPROPRIATE" RELIEF AND PRESUMABLY WILL GIVE EFFECT TO THE POLICIES
EMBODIED IN THE FEDERAL POWER ACT WE CANNOT SAY UNDER THESE
CIRCUMSTANCES THAT IT HAS ABUSED ITS DISCRETION. 

EXCEPT FOR THE PROVISION OF THE ORDER DISCUSSED IN PART IV OF THIS
OPINION, THE JUDGMENT IS

              AFFIRMED. 

MR. JUSTICE BLACKMUN AND MR. JUSTICE POWELL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/0/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY LEO E.
FORQUER AND GEORGE W. MCHENRY, JR., FOR THE FEDERAL POWER COMMISSION;
BY GEORG D. GIBSON, JOHN H. SHENEFIELD, FREDERICK T. SEARLS, WILLIAM B.
KUDER, MALCOLM H. FURBUSH, AND C. HAYDEN AMES FOR GENERAL PUBLIC
UTILITIES CORP. ET AL.; AND BY H. THOMAS AUSTERN AND E. EDWARD BRUCE
FOR SEVENTEEN INVESTOR-OWNED ELECTRICAL UTILITIES. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JOHN P.
MCKENNA, JOHN C. SCOTT, AND OSEE R. FAGAN FOR THE CITY OF GAINESVILLE,
FLORIDA; BY HERBERT PL. MESCHKE AND JAN M. SEBBY FOR THE VILLAGE OF
ELBOW LAKE, MINNESOTA; BY C. EMERSON DUNCAN II AND DONALD R. ALLEN FOR
MISSOURI BASIN MUNICIPAL POWER AGENCY; AND BY NORTHCUTT ELY FOR
AMERICAN PUBLIC POWER ASSOCIATION. 

/1/  NORTHERN STATES POWER CO. ALSO SUPPLIES SOME TOWNS IN OTTER
TAIL'S AREA WITH ELECTRIC POWER AT RETAIL.  BUT THE DISTRICT COURT
EXCLUDED THESE TOWNS FROM OTTER TAIL'S AREA BECAUSE THE TWO COMPANIES
DO NOT COMPETE IN THE TOWNS SERVED BY EACH OTHER.  OF THE 615 REMAINING
TOWNS IN THE AREA, 465 ARE SERVED AT RETAIL BY OTTER TAIL, 45 BY
MUNICIPAL SYSTEMS, AND 105 BY RURAL ELECTRIC COOPERATIVES.  THE
COOPERATIVES ARE BARRED BY SEC. 4 OF THE RURAL ELECTRIFICATION ACT OF
1936, 49 STAT. 1365, AS AMENDED, 7 U.S.C. 904, FROM BORROWING FEDERAL
FUNDS TO PROVIDE POWER TO TOWNS ALREADY RECEIVING CENTRAL STATION
SERVICE.  FOR THIS AND RELATED REASONS, THE DISTRICT COURT EXCLUDED THE
RURAL COOPERATIVES FROM THE RELEVANT MARKET. 

/2/  SUBTRANSMISSION LINES, WITH VOLTAGES FROM 34.5 KV TO 69 KV ARE
USED FOR MOVING POWER FROM THE BULK SUPPLY LINES TO POINTS OF LOCAL
DISTRIBUTION.  OF OTTER TAIL'S BASIC SUBTRANSMISSION SYSTEM IN THIS
AREA, TWO-THIRDS OF THOSE LINES ARE 41.6 KV SUBTRANSMISSION LINES. 

/3/  THE 38 DISTRIBUTION RURAL COOPERATIVES IN OTTER TAIL'S AREA
GENERALLY OWN ONLY LOW-VOLTAGE DISTRIBUTION LINES, WHICH IN MOST
INSTANCES COULD NOT BE USED TO SUPPLY POWER TO PROPOSED MUNICIPAL
UTILITIES.  THE FEW RURAL COOPERATIVES THAT HAVE GENERATION AND
TRANSMISSION SERVICES DO NOT, IT WAS FOUND, CUT SIGNIFICANTLY INTO
OTTER TAIL'S DOMINANT POSITION IN SUBTRANSMISSION. 

/4/  ELBOW LAKE V. OTTER TAIL POWER CO., 40 F.P.C. 1262, AFF'D,
OTTER TAIL POWER CO. V. FPC, 429 F.2D 232 (CA8), CERT. DENIED, 401 U.S.
947. 

/5/  ELBOW LAKE V. OTTER TAIL POWER CO., 46 F.P.C. 675. 

/6/  SEE S. REP. NO. 621, 74TH CONG., 1ST SESS.; H.R.REP.  NO. 1318,
74TH CONG., 1ST SESS.; ELBOW LAKE V. OTTER TAIL POWER CO., 46 F.P.C.,AT
679. 

/7/  SECTION 202(B) PROVIDES:  "WHENEVER THE COMMISSION, UPON
APPLICATION OF ANY STATE COMMISSION OR OF ANY PERSON ENGAGED IN THE
TRANSMISSION OR SALE OF ELECTRIC ENERGY, AND AFTER NOTICE TO EACH STATE
COMMISSION AND PUBLIC UTILITY AFFECTED AND AFTER OPPORTUNITY FOR
HEARING, FINDS SUCH ACTION NECESSARY OR APPROPRIATE IN THE PUBLIC
INTEREST IT MAY BY ORDER DIRECT A PUBLIC UTILITY (IF THE COMMISSION
FINDS THAT NO UNDUE BURDEN WILL BE PLACED UPON SUCH PUBLIC UTILITY
THEREBY) TO ESTABLISH PHYSICAL CONNECTION OF ITS TRANSMISSION
FACILITIES WITH THE FACILITIES OF ONE OR MORE OTHER PERSONS ENGAGED IN
THE TRANSMISSION OR SALE OF ELECTRIC ENERGY, TO SELL ENERGY TO OR
EXCHANGE ENERGY WITH SUCH PERSONS:  PROVIDED, THAT THE COMMISSION SHALL
HAVE NO AUTHORITY TO COMPEL THE ENLARGEMENT OF GENERATING FACILITIES
FOR SUCH PURPOSES, NOR TO COMPEL SUCH PUBLIC UTILITY TO SELL OR
EXCHANGE ENERGY WHEN TO DO SO WOULD IMPAIR ITS ABILITY TO RENDER
ADEQUATE SERVICE TO ITS CUSTOMERS.  THE COMMISSION MAY PRESCRIBE THE
TERMS AND CONDITIONS OF THE ARRANGEMENT TO BE MADE BETWEEN THE PERSONS
AFFECTED BY ANY SUCH ORDER, INCLUDING THE APPORTIONMENT OF COST BETWEEN
THEM AND THE COMPENSATION OR REIMBURSEMENT REASONABLY DUE TO ANY OF
THEM." 

/8/  S. REP. NO. 621, SUPRA, N. 6, AT 19. 

/9/  AFTER NOTING THAT THE "PENDENCY OF LITIGATION HAS THE EFFECT OF
PREVENTING THE MARKETING OF THE NECESSARY BONDS THUS PREVENTING THE
ESTABLISHMENT OF A MUNICIPAL SYSTEM," 331 F.SUPP.,AT 62, THE DISTRICT
COURT WENT ON TO FIND: 

"MOST OF THE LITIGATION SPONSORED BY THE DEFENDANT WAS CARRIED TO
THE HIGHEST AVAILABLE APPELLATE COURT AND ALTHOUGH ALL OF IT WAS
UNSUCCESSFUL ON THE MERITS, THE INSTITUTION AND MAINTENANCE OF IT HAD
THE EFFECT OF HALTING, OR APPRECIABLY SLOWING, EFFORTS FOR MUNICIPAL
OWNERSHIP.  THE DELAY THUS OCCASIONED AND THE LARGE FINANCIAL BURDEN
IMPOSED ON THE TOWNS' LIMITED TREASURY DAMPENED LOCAL ENTHUSIASM FOR
PUBLIC OWNERSHIP.  IN SOME INSTANCES, OTTER TAIL MADE OFFERS TO THE
TOWNS TO ABSORB THE TOWNS' COSTS AND EXPENSES, AND ENHANCE THE QUALITY
OF ITS SERVICE IN EXCHANGE FOR A NEW FRANCHISE.  HANKINSON, AFTER
SEVERAL YEARS OF ABORTIVE EFFORT, ACCEPTED THIS TYPE OF OFFER AND
RENEWED DEFENDANT'S FRANCHISE."  IBID. 

/10/  THE FEDERAL POWER COMMISSION SAID IN ELBOW LAKE V. OTTER TAIL
POWER CO., 46 F.P.C.,AT 678: "THE PUBLIC INTEREST IS FOR BROADER THAN
THE ECONOMIC INTEREST OF A PARTICULAR POWER SUPPLIER.  IT IS OUR LEGAL
RESPONSIBILITY, AS THE SUPREME COURT MADE CLEAR IN PENNSYLVANIA WATER &
POWER CO. V. FPC, 343 U.S 414 (1952), TO USE OUR STATUTORY AUTHORITY TO
ASSURE 'AN ABUNDANT SUPPLY OF ELECTRIC ENERGY THROUGHOUT THE UNITED
STATES,' AND PARTICULARLY TO USE OUR STATUTORY POWER UNDER SECTION
202(B) TO COMPEL INTERCONNECTION AND COORDINATION WHEN THE PUBLIC
INTEREST REQUIRES IT.  THE EXERCISE OF THAT AUTHORITY MAY WELL REQUIRE,
AS IT DOES HERE, THAT WE ORDER A PUBLIC UTILITY TO INTERCONNECT WITH AN
ISOLATED MUNICIPAL SYSTEM.  THE PRIVATE COMPANY'S LACK OF ENTHUSIASM
FOR THE ARRANGEMENT CANNOT DETER US, SO LONG AS THE PUBLIC INTEREST
REQUIRES IT."     MR. JUSTICE STEWART, WITH WHOM THE CHIEF JUSTICE AND
MR. JUSTICE REHNQUIST JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I JOIN PART IV OF THE COURT'S OPINION, WHICH SETS ASIDE THE JUDGMENT
AND REMANDS THE CASE TO THE DISTRICT COURT FOR CONSIDERATION OF THE
APPELLANT'S LITIGATION ACTIVITIES IN LIGHT OF OUR DECISION IN
CALIFORNIA MOTOR TRANSPORT CO. V. TRUCKING UNLIMITED, 404 U.S. 508.  AS
TO THE REST OF THE COURT'S OPINION, HOWEVER, I RESPECTFULLY DISSENT. 

THE COURT IN THIS CASE HAS FOLLOWED THE DISTRICT COURT INTO A
MISAPPLICATION OF THE SHERMAN ACT TO A HIGHLY REGULATED, NATURAL
MONOPOLY INDUSTRY WHOLLY DIFFERENT FROM THOSE THAT HAVE GIVEN RISE TO
ORDINARY ANTITRUST PRINCIPLES.  IN MY VIEW, OTTER TAIL'S REFUSAL TO
WHOLESALE POWER THROUGH INTERCONNECTION OR TO PERFORM WHEELING SERVICES
WAS CONDUCT ENTAILING NO ANTITRUST VIOLATION. 

IT IS UNDISPUTED THAT OTTER TAIL REFUSED EITHER TO WHEEL POWER OR TO
SELL IT AT WHOLESALE TO THE TOWNS OF ELBOW LAKE, MINNESOTA, AND
HANKINSON, NORTH DAKOTA, BOTH OF WHICH HAD FORMERLY BEEN ITS CUSTOMERS
AND HAD ELECTED TO ESTABLISH MUNICIPALLY OWNED ELECTRIC UTILITY
SYSTEMS.  THE DISTRICT COURT CONCLUDED THAT OTTER TAIL HAD SUBSTANTIAL
MONOPOLY POWER AT RETAIL AND "STRATEGIC DOMINANCE" IN THE
SUBTRANSMISSION OF POWER IN MOST OF ITS MARKET AREA.  /1/  331 F.SUPP. 
54, 58-60.  THE DISTRICT COURT THEN MECHANICALLY APPLIED THE FAMILIAR
SHERMAN ACT FORMULA:  SINCE OTTER TAIL POSSESSED MONOPOLY POWER AND HAD
ACTED TO PRESERVE THAT POWER, IT WAS GUILTY OF AN ANTITRUST VIOLATION. 
NOWHERE DID THE DISTRICT COURT COME TO GRIPS WITH THE SIGNIFICANCE OF
THE FEDERAL POWER ACT, EITHER IN TERMS OF THE SPECIFIC REGULATORY
APPARATUS IT ESTABLISHED OR THE POLICY CONSIDERATIONS THAT MOVED THE
CONGRESS TO ENACT IT.  YET IT SEEMS TO ME THAT THESE CONCERNS ARE
CENTRAL TO THE DISPOSITION OF THIS CASE. 

IN CONSIDERING THE BILL THAT BECAME THE FEDERAL POWER ACT OF 1935,
THE CONGRESS HAD BEFORE IT THE REPORT OF THE NATIONAL POWER POLICY
COMMITTEE ON PUBLIC-UTILITY HOLDING COMPANIES.  THAT REPORT CHIEFLY
CONCERNED PATTERNS OF OWNERSHIP IN THE POWER INDUSTRY AND THE EVILS OF
CONCENTRATED OWNERSHIP BY HOLDING COMPANIES.  THE PROBLEM THAT CONGRESS
ADDRESSED IN FASHIONING A REGULATORY SYSTEM REFLECTED A PURPOSE TO
PREVENT UNNECESSARY FINANCIAL CONCENTRATION WHILE RECOGNIZING THE
"NATURAL MONOPOLY" ASPECTS, AND CONCOMITANT EFFICIENCIES, OF POWER
GENERATION AND TRANSMISSION.  THE REPORT STATED THAT 

"(WHILE THE DISTRIBUTION OF GAS OR ELECTRICITY IN ANY GIVEN
COMMUNITY IS TOLERATED AS A 'NATURAL MONOPOLY' TO AVOID LOCAL
DUPLICATION OF PLANTS, THERE IS NO JUSTIFICATION FOR AN EXTENSION OF
THAT IDEA OF LOCAL MONOPOLY TO EMBRACE THE COMMON CONTROL, BY A FEW
POWERFUL INTERESTS, OF UTILITY PLANTS SCATTERED OVER MANY STATES AND
TOTALLY UNCONNECTED IN OPERATION."  S. REP. NO. 621, 74TH CONG., 1ST
SESS., 55. 

THE RESULTING STATUTORY SYSTEM LEFT ROOM FOR THE DEVELOPMENT OF
ECONOMICS OF LARGE SCALE, SINGLE COMPANY OPERATIONS.  ONE OF THE STATED
MANDATES TO THE FEDERAL POWER COMMISSION WAS FOR IT TO ASSURE "AN
ABUNDANT SUPPLY OF ELECTRIC ENERGY THROUGHOUT THE UNITED STATES WITH
THE GREATEST POSSIBLE ECONOMY AND WITH REGARD TO THE PROPER UTILIZATION
AND CONSERVATION OF NATURAL RESOURCES," 16 U.S.C. 824A.  IN THE FACE OF
NATURAL MONOPOLIES AT RETAIL AND SIMILAR ECONOMIES OF SCALE IN THE
SUBTRANSMISSION OF POWER, CONGRESS WAS FORCED TO ADDRESS THE VERY
PROBLEM RAISED BY THIS CASE-- USE OF THE LINES OF ONE COMPANY BY
ANOTHER.  ONE OBVIOUS SOLUTION WOULD HAVE BEEN TO IMPOSE THE
OBLIGATIONS OF A COMMON CARRIER UPON POWER COMPANIES OWNING LINES
CAPABLE OF THE WHOLESALE TRANSMISSION OF ELECTRICITY.  SUCH A PROVISION
WAS ORIGINALLY INCLUDED IN THE BILL.  ONE PROPOSED SECTION PROVIDED
THAT: 

"IT SHALL BE THE DUTY OF EVERY PUBLIC UTILITY TO FURNISH ENERGY TO,
EXCHANGE ENERGY WITH, AND TRANSMIT ENERGY FOR ANY PERSON UPON
REASONABLE REQUEST THEREFOR . . . "  S. 1725, 74TH CONG., 1ST SESS.,
SEC. 213. 

ANOTHER PROPOSED PROVISION WAS THAT: 

"WHENEVER THE COMMISSION, AFTER NOTICE AND OPPORTUNITY FOR HEARING,
FINDS SUCH ACTION NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST, IT MAY
BY ORDER DIRECT A PUBLIC UTILITY TO MAKE ADDITIONS, EXTENSIONS,
REPAIRS, OR IMPROVEMENTS TO OR CHANGES IN ITS FACILITIES, TO ESTABLISH
PHYSICAL CONNECTION WITH THE FACILITIES OF ONE OR MORE OTHER PERSONS,
TO PERMIT THE USE OF ITS FACILITIES BY ONE OR MORE PERSONS, OR TO
UTILIZE THE FACILITIES OF, SELL ENERGY TO, PURCHASE ENERGY FROM,
TRANSMIT ENERGY FOR, OR EXCHANGE ENERGY WITH, ONE OR MORE OTHER
PERSONS."  /2/  IBID. 

HAD THESE PROVISIONS BEEN ENACTED, THE COMMISSION WOULD CLEARLY HAVE
HAD THE POWER TO ORDER INTERCONNECTIONS AND WHEELING FOR THE PURPOSE OF
MAKING AVAILABLE TO LOCAL POWER COMPANIES WHOLESALE POWER OBTAINED FROM
OR THROUGH COMPANIES WITH SUBTRANSMISSION SYSTEMS.  THE LATTER
COMPANIES WOULD EQUALLY CLEARLY HAVE HAD AN OBLIGATION TO PROVIDE SUCH
SERVICES UPON REQUEST.  YET, AFTER SUBSTANTIAL DEBATE, /3/  THE
CONGRESS DECLINED TO FOLLOW THIS PATH.  AS THE SENATE REPORT INDICATES
IN DISCUSSING SEC. 202 AS ENACTED: 

"THE COMMITTEE IS CONFIDENT THAT ENLIGHTENED SELF-INTEREST WILL LEAD
THE UTILITIES TO COOPERATE WITH THE COMMISSION AND WITH EACH OTHER IN
BRINGING ABOUT THE ECONOMIES WHICH CAN ALONE BE SECURED THROUGH THE
PLANNED COORDINATION WHICH HAS LONG BEEN ADVOCATED BY THE MOST ABLE AND
PROGRESSIVE THINKERS ON THIS SUBJECT. 

     "WHEN INTERCONNECTION CANNOT BE SECURED BY VOLUNTARY ACTION,

  SUBSECTION (B) GIVES THE COMMISSION LIMITED AUTHORITY TO COMPEL

  INTER-STATE UTILITIES TO CONNECT THEIR LINES AND SELL OR EXCHANGE

  ENERGY.  THE POWER MAY ONLY BE INVOKED UPON COMPLAINT BY A STATE

  COMMISSION OR A UTILITY SUBJECT TO THE ACT."  S. REP. NO. 621,

74TH CONG., 1ST SESS., 49. 

THIS LEGISLATIVE HISTORY, ESPECIALLY WHEN VIEWED IN THE LIGHT OF
REPEATED SUBSEQUENT CONGRESSIONAL REFUSALS TO IMPOSE COMMON CARRIER
OBLIGATIONS IN THIS AREA, /4/  INDICATES A CLEAR CONGRESSIONAL PURPOSE
TO ALLOW ELECTRIC UTILITIES TO DECIDE FOR THEMSELVES WHETHER TO WHEEL
OR SELL AT WHOLESALE AS THEY SEE FIT.  THIS FREEDOM IS QUALIFIED BY A
GRANT OF AUTHORITY TO THE COMMISSION TO ORDER INTERCONNECTION (BUT NOT
WHEELING) IN CERTAIN CIRCUMSTANCES.  BUT THE EXERCISE OF EVEN THAT
POWER IS LIMITED BY A CONSIDERATION OF THE ABILITY OF THE REGULATED
UTILITY TO FUNCTION.  THE COMMISSION MAY NOT ORDER INTERCONNECTION
WHERE THIS WOULD ENTAIL AN "INDUE BURDEN" ON THE REGULATED UTILITY.  IN
ADDITION, THE COMMISSION HAS 

"NO AUTHORITY TO COMPEL THE ENLARGEMENT OF GENERATING FACILITIES FOR
SUCH PURPOSES, NOR TO COMPEL SUCH PUBLIC UTILITY TO SELL OR EXCHANGE
ENERGY WHEN TO DO SO WOULD IMPAIR ITS ABILITY TO RENDER ADEQUATE
SERVICE TO ITS CUSTOMERS."  16 U.S.C. 824AB). 

AS THE DISTRICT COURT FOUND, OTTER TAIL IS A VERTICALLY INTEGRATED
POWER COMPANY.  BUT THE BULK OF ITS BUSINESS-- SOME 90% OF ITS INCOME--
DERIVES FROM SALES OF POWER AT RETAIL.  LEFT TO ITS OWN JUDGMENT IN
DEALING WITH ITS CUSTOMERS, IT SEEMS ENTIRELY PREDICTABLE THAT OTTER
TAIL WOULD DECLINE WHOLESALE DEALING WITH TOWNS IN WHICH IT HAD
PREVIOUSLY DONE BUSINESS AT RETAIL.  IF THE PURPOSE OF THE
CONGRESSIONAL SCHEME IS TO LEAVE SUCH DECISIONS TO THE POWER COMPANIES
IN THE ABSENCE OF A CONTRARY REQUIREMENT IMPOSED BY THE COMMISSION, IT
WOULD APPEAR THAT OTTER TAIL'S COURSE OF CONDUCT IN REFUSING TO DEAL
WITH THE MUNICIPAL SYSTEM AT ELBOW LAKE AND IN REFUSING TO PROMISE TO
DEAL WITH THE PROPOSED SYSTEM AT HANKINSON, WAS FORESEEABLY WITHIN THE
ZONE OF FREEDOM SPECIFICALLY CREATED BY THE STATUTORY SCHEME.  /5/  AS
A RETAILER OF POWER, OTTER TAIL ASSERTED A LEGITIMATE BUSINESS INTEREST
IN KEEPING ITS LINES FREE FOR ITS OWN POWER DALES AND IN REFUSING TO
LEND A HAND IN ITS OWN DEMISE BY WHEELING CHEAPER POWER FROM THE BUREAU
OF RECLAMATION TO MUNICIPAL CONSUMERS WHICH MIGHT OTHERWISE PURCHASE
POWER AT RETAIL FROM OTTER TAIL ITSELF. 

THE OPINION OF THE COURT EMPHASIZES THAT OTTER TAIL'S ACTIONS WERE
NOT SIMPLE REFUSALS TO DEAL-- THEY RESULTED IN OTTER TAIL'S MAINTENANCE
OF MONOPOLY CONTROL BY HINDERING THE EMERGENCE OF MUNICIPAL POWER
COMPANIES.  THE COURT CITES LORAIN JOURNAL V. UNITED STATES, 342 U.S.
143, FOR THE PROPOSITION THAT "(USE OF MONOPOLY POWER 'TO DESTROY
THREATENED COMPETITION' IS A VIOLATION OF THE 'ATTEMPT TO MONOPOLIZE'
CLAUSE OF SEC. 2 OF THE SHERMAN ACT."  THIS PROPOSITION SEEMS TO ME
DEFECTIVE.  LORAIN JOURNAL DEALT NEITHER WITH A NATURAL MONOPOLY AT
RETAIL NOR WITH A CONGRESSIONALLY APPROVED SYSTEM PREDICATED ON THE
EXISTENCE OF SUCH MONOPOLIES.  IN LORAIN JOURNAL, A NEWSPAPER IN
LORAIN, OHIO, USED ITS MONOPOLY POSITION TO DISCOURAGE ADVERTISERS FROM
SUPPORTING A NEARBY RADIO STATION SEEN BY THE NEWSPAPER TO BE A
COMPETITOR.  THE THEORY OF THE CASE WAS THAT COMPETITION IN THE
COMMUNICATIONS BUSINESS WAS BEING FORECLOSED BY THE NEWSPAPER'S
EXERCISE OF MONOPOLY POWER.  HERE, BY CONTRAST, A MONOPOLY IS SURE TO
RESULT EITHER WAY.  IF THE CONSUMERS OF ELBOW LAKE RECEIVE THEIR
ELECTRIC POWER FROM A MUNICIPALLY OWNED COMPANY OR FROM OTTER TAIL,
THERE WILL BE A MONOPOLY AT THE RETAIL LEVEL, FOR THERE WILL IN ANY
EVENT BE ONLY ONE SUPPLIER.  THE VERY REASON FOR THE REGULATION OF
PRIVATE UTILITY RATES-- BY STATE BODIES AND BY THE COMMISSION-- IS THE
INEVITABILITY OF A MONOPOLY THAT REQUIRES PRICE CONTROL TO TAKE THE
PLACE OF PRICE COMPETITION.  ANTITRUST PRINCIPLES APPLICABLE TO OTHER
INDUSTRIES CANNOT BE BLINDLY APPLIED TO A UNILATERAL REFUSAL TO DEAL ON
THE PART OF A POWER COMPANY, OPERATING IN A REGIME OF RATE REGULATION
AND LICENSED MONOPOLIES. 

THE COURT'S OPINION SCOFFS AT OTTER TAIL'S DEFENSE OF BUSINESS
JUSTIFICATION.  UNITED STATES V. ARNOLD, SCHWINN & CO., 388 U.S. 365,
IS CITED FOR THE PROPOSITION THAT "(THE PROMOTION OF SELF-INTEREST
ALONE DOES NOT INVOKE THE RULE OF REASON TO IMMUNIZE OTHERWISE ILLEGAL
CONDUCT."  THIS FACET OF THE COURT'S REASONING ALSO ESCAPES ME IN THE
CASE BEFORE US, WHERE THE HEALTH OF POWER COMPANIES AND THE ABUNDANCE
OF OUR ENERGY SUPPLY WERE CONSIDERATIONS CENTRAL TO THE CONGRESSIONAL
PURPOSE IN DEVISING THE REGULATORY SCHEME.  AS NOTED ABOVE, THE
COMMISSION IS SPECIFICALLY PROHIBITED FROM IMPOSING INTERCONNECTION
REQUIREMENTS THAT ARE UNDULY BURDENSOME OR THAT INTERFERE WITH A PUBLIC
UTILITY'S ABILITY TO SERVE ITS CUSTOMERS EFFICIENTLY.  THE DISTRICT
COURT NOTED THAT OTTER TAIL HAD OFFERED A "SO-CALLED 'EROSION STUDY'"
DOCUMENTING THE WAY IN WHICH ITS BUSINESS WOULD SUFFER IF IT WERE
FORCED TO WHOLESALE AND WHEEL POWER TO MUNICIPALLY OWNED COMPANIES. 
THE DISTRICT COURT GAVE LITTLE CREDENCE TO THE REPORT'S PREDICTIONS. 
"BUT REGARDLESS," THE COURT WENT ON, "EVEN THE THREAT OF LOSING
BUSINESS DOES NOT JUSTIFY OR EXCUSE VIOLATING THE LAW."  331 F.SUPP.,AT
64-65.  THIS QUESTION-BEGGING DISREGARD OF THE ECONOMIC HEALTH OF OTTER
TAIL IS WHOLLY AT ODDS WITH THE CONGRESSIONAL PURPOSE IN SPECIFYING THE
CONDITIONS UNDER WHICH INTERCONNECTIONS CAN BE REQUIRED. 

THIS IS NOT TO SAY THAT OTTER TAIL'S FINANCIAL HEALTH IS PARAMOUNT
IN ALL INSTANCES, /6/  OR THAT THE ELECTRIC POWER INDUSTRY AS REGULATED
BY THE COMMISSION IS PER SE EXEMPT FROM THE ANTITRUST LAWS.  IN THE
ABSENCE OF A SPECIFIC STATUTORY IMMUNITY, CF. HUGHES TOOL CO. V.
TRANSWORLD AIRLINES, 409 U.S. 363, SUCH EXEMPTIONS ARE NOT LIGHTLY TO
BE IMPLIED, UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321. 
FURTHERMORE, NO SWEEPING ANTITRUST EXEMPTION IS WARRANTED, AS IT HAS
BEEN IN CASES INVOLVING CERTAIN PERVASIVELY REGULATED INDUSTRIES, UNDER
THE DOCTRINE OF "PRIMARY JURISDICTION."  /7/  CF. UNITED V. RADIO CORP
OF AMERICA, 358 U.S. 334, 346-352.  SEE FAR EAST CONFERENCE V. UNITED
STATES, 342 U.S. 570; TERMINAL WAREHOUSE CO. V. PENNSYLVANIA R. CO.,
297 U.S. 500; UNITED STATES NAVIGATION CO. V. CUNARD S.S. CO., 284 U.S.
474; KEOGH V. CHICAGO & N.W.R. CO., 260 U.S. 156; TEXAS & PACIFIC R.
CO. V. ABILENE COTTON OIL CO., 204 U.S. 426; CF. CARNATION CO. V.
PACIFIC WESTBOUND CONFERENCE, 383 U.S. 213.  OUR DUTY IN ATTEMPTING TO
RECONCILE THE FEDERAL POWER ACT WITH THE SHERMAN ACT ON THE FACTS OF
THE CASE BEFORE US REQUIRES A JUDGMENT REGARDING THE "CHARACTER AND
OBJECTIVES" OF THE REGULATORY SCHEME AND THE EXTENT TO WHICH THEY "ARE
INCOMPATIBLE WITH THE MAINTENANCE OF AN ANTITRUST ACTION."  SILVER V.
NEW YORK STOCK EXCHANGE, 373 U.S. 341, 358.  "REPEAL (OF THE ANTITRUST
LAWS) IS TO BE REGARDED AS IMPLIED ONLY IF NECESSARY TO MAKE THE . . .
(ACT) WORK, AND EVEN THEN ONLY TO THE MINIMUM EXTENT NECESSARY."  ID.,
AT 357. 

WITH RESPECT TO DECISIONS BY REGULATED ELECTRIC UTILITIES AS TO
WHETHER OR NOT TO PROVIDE NONRETAIL SERVICES, I THINK THAT IN THE
ABSENCE OF HORIZONTAL CONSPIRACY, THE TEACHING OF THE "PRIMARY
JURISDICTION" CASES ARGUES FOR LEAVING GOVERNMENTAL REGULATION TO THE
COMMISSION INSTEAD OF THE INVARIABLY LESS SENSITIVE AND LESS
SPECIFICALLY EXPERT PROCESS OF ANTITRUST LITIGATION.  I BELIEVE THIS IS
WHAT CONGRESS INTENDED BY DECLINING TO IMPOSE COMMON CARRIER
OBLIGATIONS ON COMPANIES LIKE OTTER TAIL, AND BY ENTRUSTING THE
COMMISSION WITH THE BURDEN OF "ASSURING AN ABUNDANT SUPPLY OF ELECTRIC
ENERGY THROUGHOUT THE UNITED STATES" AND WITH THE POWER TO ORDER
INTERCONNECTIONS WHEN NECESSARY IN THE PUBLIC INTEREST.  THIS IS AN
AREA WHERE "SPORADIC ACTION BY FEDERAL COURTS" CAN "WORK MISCHIEF." 
CF. UNITED STATES V. RADIO CORP. OF AMERICA, 358 U.S.,AT 350.  /8/ 
EVEN ASSUMING THAT OTTER TAIL'S REFUSALS TO WHOLESALE OR WHEEL POWER TO
ELBOW LAKE AND HANKINSON WERE COLORABLY WITHIN THE REACH OF THE
ANTITRUST LAWS, I CANNOT SQUARE THE OPINION OF THE COURT WITH OUR
RECENT DECISION IN RICCI V. CHICAGO MERCANTILE EXCHANGE, 409 U.S. 289. 
OTTER TAIL'S REFUSAL TO WHOLESALE OR WHEEL POWER TO ELBOW LAKE WAS THE
SUBJECT OF TWO CONCURRENT PROCEEDINGS-- ONE IN THE DISTRICT COURT, AND
ANOTHER IN THE FEDERAL POWER COMMISSION.  IT SEEMS TO ME THAT THE
PRINCIPLES OF RICCI, RELATED TO BUT NOT IDENTICAL WITH THE TRADITIONAL
DOCTRINE OF "PRIMARY JURISDICTION," SHOULD REQUIRE A DISTRICT COURT IN
A CASE LIKE THIS ONE TO DEFER TO THE COMMISSION PROCEEDING THEN IN
PROGRESS.  SURELY THE REGULATORY AUTHORITY OF THE COMMISSION WITH
RESPECT TO INTERCONNECTION IS AT LEAST AS SUBSTANTIAL AS THE
RESPONSIBILITY OF THE COMMODITY EXCHANGE COMMISSION, IN RICCI, FOR THE
IMPLEMENTATION OF REASONABLE MEMBERSHIP PRACTICES BY ITS REGULATED
CONTRACT MARKETS.  ID., AT 310-311 (MARSHALL, J., DISSENTING).  THE
RESPONSIBILITY OF THE COMMISSION FOR "ASSURING AN ABUNDANT SUPPLY OF
ELECTRIC ENERGY THROUGHOUT THE UNITED STATES" AND ITS AUTHORITY TO
ORDER COMPULSORY WHOLESALING SATISFY THE THREE CRITERIA ENUNCIATED IN
RICCI FOR A DEFERRAL OF ANTITRUST JURISDICTION TO AN ADMINISTRATIVE
AGENCY:  (1) THAT THE COURT MUST FIRST DECIDE WHETHER THE CONDUCT
COMPLAINED OF, IN LIGHT OF THE REGULATORY STATUTE, IS IMMUNE FROM THE
ANTITRUST LAWS: (2) THAT "SOME FACETS OF THE DISPUTE" ARE "WITHIN THE
STATUTORY JURISDICTION" OF THE AGENCY; AND (3) "THAT ADJUDICATION OF
THAT DISPUTE . . . PROMISES TO BE OF MATERIAL AID IN RESOLVING THE
IMMUNITY QUESTION."  ID., AT 302. 

WITH RESPECT TO THE LAST OF THE RICCI CRITERIA, IT IS USEFUL TO
CONTRAST THE CURSORY TREATMENT GIVEN TO OTTER TAIL'S BUSINESS
JUSTIFICATION DEFENSE BY THE COURT TODAY WITH THE OPINION OF THE
COMMISSION ORDERING PERMANENT INTERCONNECTION: 

"(WE CANNOT DISAGREE WITH THE EXAMINER'S VIEW THAT ELBOW LAKE HAS
ENGAGED IN 'AN ILL-ADVISED EXCURSION INTO THE POWER BUSINESS.'  GIVEN
THE FACTS OF RECORD BEFORE US, IT IS PLAIN THAT ELBOW LAKE'S EFFORT HAS
NOT BROUGHT IT THE REWARDS IT EXPECTED; INDEED, ITS FIRST YEAR OF
OPERATIONS, DURING WHICH IT PERPETUATED THE RATES FORMERLY CHARGED BY
OTTER TAIL, RESULTED IN A FINANCIAL LOSS.  UNLIKE OTTER TAIL'S EARLIER
SERVICE TO ELBOW LAKE, ELBOW LAKE'S OWN SYSTEM IS OF DOUBTFUL
RELIABILITY, AS EVIDENCED BY ITS PRESENCE BEFORE US NOW . . . WHILE IT
IS OUR RESPONSIBILITY TO TAKE ALL POSSIBLE STEPS TO INSURE TO ELBOW
LAKE'S CUSTOMERS A HIGH STANDARD OF SERVICE RELIABILITY, OUR TERMS AND
CONDITIONS MUST NOT INVITE IMPROVIDENT VENTURES ELSEWHERE. 

     "WE ALSO SHARE THE EXAMINER'S VIEW THAT OTTER TAIL IS

  LEGITIMATELY CONCERNED ABOUT THE POSSIBLE EROSION OF ITS SYSTEM. 

  IF OTHER COMMUNITIES WERE TO FOLLOW ELBOW LAKE'S ROUTE, AND IF,

  HAVING MISCALCULATED THE RESULTS, THEY COULD EXPECT TO BE RESCUED

  BY OVERLY-GENEROUS INTERCONNECTION TERMS, THEN OTTER TAIL'S FEARS

  THAT IT WILL LOSE ITS CUSTOMERS, SERIATIM, SEEM TO US TO BE

  SUPPORTED.  WE DO NOT MEAN BY THIS THAT WE ACCEPT A CAPTIVE

  MARKET CONCEPT, HOWEVER . . . THE EXERCISE OF THAT (STATUTORY)

  AUTHORITY MAY WELL REQUIRE, AS IT DOES HERE, THAT WE ORDER A

  PUBLIC UTILITY TO INTERCONNECT WITH AN ISOLATED MUNICIPAL

  SYSTEM."  ELBOW LAKE V. OTTER TAIL POWER CO., 46 F.P.C. 675,

  677-678. 

THE OPINION OF THE COURT ATTEMPTS TO SIDESTEP THE RICCI PROBLEM BY
NOTING THAT THE COMMISSION HAS IN FACT ORDERED INTERCONNECTION WITH
ELBOW LAKE, RESULTING IN THE ABSENCE OF A PRESENT ACTUAL CONFLICT WITH
THE DECREE ENTERED BY THE DISTRICT COURT.  THE COURT GOES ON VAGUELY TO
SUGGEST THAT THERE WILL BE TIME TO COPE WITH THE PROBLEM OF A
COMMISSION REFUSAL TO ORDER INTERCONNECTION WHICH CONFLICTS WITH THIS
ANTITRUST DECREE WHEN SUCH A CONFLICT ARISES. 

BUT THE BASIC CONFLICT BETWEEN THE COMMISSION'S AUTHORITY AND THE
DECREE ENTERED IN THE DISTRICT COURT CANNOT BE SO EASILY WISHED AWAY. 
THE DECREE ENJOINS OTTER TAIL FROM "(REFUSING TO SELL ELECTRIC POWER AT
WHOLESALE TO EXISTING OR PROPOSED MUNICIPAL ELECTRIC POWER SYSTEMS IN
CITIES AND TOWNS LOCATED IN ANY AREA SERVICED BY DEFENDANT."  /9/  THIS
INJUNCTION IS QUALIFIED BY A PROVISION THAT SUCH WHOLESALING BE DONE AT
"COMPENSATORY" RATES AND UNDER "TERMS AND CONDITIONS WHICH ARE FILED
WITH AND SUBJECT TO APPROVAL BY THE FEDERAL POWER COMMISSION."  THE
SETTING OF RATES, TERMS, AND CONDITIONS, HOWEVER, IS BUT PART OF THE
COMMISSION'S AUTHORITY UNDER SEC. 202(B), 16 U.S.C. 824AB).  824AB). 
THE COURT'S DECREE PLAINLY IGNORES THE COMMISSION'S AUTHORITY TO DECIDE
WHETHER INVOLUNTARY INTERCONNECTION IS WARRANTED UNDER THE ENUNCIATED
STATUTORY CRITERIA.  UNLESS THE DECREE IS MODIFIED, ITS FUTURE
IMPLEMENTATION WILL STARKLY CONFLICT WITH THE EXPLICIT STATUTORY
MANDATE OF THE FEDERAL POWER COMMISSION. 

BOTH BECAUSE I BELIEVE OTTER TAIL'S REFUSAL TO WHEEL OR WHOLESALE
POWER WAS CONDUCT EXEMPT FROM THE ANTITRUST LAWS AND BECAUSE I BELIEVE
THE DISTRICT COURT'S DECREE IMPROPERLY PRE-EMPTED THE JURISDICTION OF
THE FEDERAL POWER COMMISSION, I WOULD REVERSE THE JUDGMENT BEFORE US. 

/1/  THE DISTRICT COURT LOOKED TO OTTER TAIL'S SERVICE AREA, AND
MEASURED MARKET DOMINANCE IN TERMS OF THE NUMBER OF TOWNS WITHIN THAT
AREA SERVED BY OTTER TAIL.  COMPUTED THIS WAY, OTTER TAIL PROVIDES 91%
OF THE RETAIL MARKET.  331 F.SUPP.  54, 59.  AS THE APPELLANT POINTS
OUT, HOWEVER, THESE TOWNS VARY IN SIZE FROM MORE THAN 29,000 TO 20
INHABITANTS.  IF OTTER TAIL'S SIZE WERE MEASURED BY ACTUAL RETAIL
SALES, ITS MARKET SHARE WOULD BE ONLY 28.9% OF THE ELECTRICITY SOLD AT
RETAIL WITHIN ITS GEOGRAPHIC MARKET AREA.  IT IS IMPORTANT TO NOTE THAT
ANOTHER REASONABLE GEOGRAPHICAL MARKET UNIT MIGHT BE EACH INDIVIDUAL
MUNICIPALITY.  VIEWED THIS WAY, WHICHEVER POWER COMPANY SELLS
ELECTRICITY AT RETAIL IN A TOWN HAS A COMPLETE MONOPOLY. 

/2/  BOTH OF THESE PROVISIONS HAD IDENTICAL COUNTERPARTS IN H.R.
5423, 74TH CONG., 1ST SESS. 

/3/  HEARINGS ON S. 1725 BEFORE THE SENATE COMMITTEE ON INTERSTATE
COMMERCE, 74TH CONG., 1ST SESS. (1935); HEARINGS ON H.R. 5423 BEFORE
THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 74TH CONG., 1ST
SESS. (1935). 

/4/  SEE, E.G., S. 350 AND H.R. 2L01, 88TH CONG., 1ST SESS.,
PROVIDING THAT: 

"ANY CERTIFICATE ISSUED UNDER THE PROVISIONS OF THIS SUBSECTION
AUTHORIZING THE OPERATION OF TRANSMISSION FACILITIES SHALL BE SUBJECT
TO THE CONDITION THAT ANY CAPACITY OF SUCH FACILITIES NOT REQUIRED FOR
THE TRANSMISSION OF ELECTRIC ENERGY IN THE ORDINARY SCOPE OF SUCH
APPLICANT'S BUSINESS SHALL BE MADE AVAILABLE ON A COMMON CARRIER BASIS
FOR THE TRANSMISSION OF OTHER ELECTRIC ENERGY." 

THIS BILL WAS RE-INTRODUCED AS S. 1472 AND H.R. 2072 IN THE 89TH
CONGRESS, 1ST SESSION, AND ALSO FAILED TO PASS.  SEE ALSO S. 2140 AND
H.R. 7791, 89TH CONG., 1ST SESS. 

THESE BILLS WERE ALL REINTRODUCED IN THE 90TH CONGRESS, AS WAS H.R.
12322, PROPOSING AN ELECTRIC POWER RELIABILITY ACT THAT WOULD HAVE
SPECIFICALLY PROVIDED THE COMMISSION WITH AUTHORITY TO ORDER WHEELING. 
IN THE 91ST CONGRESS, BILLS TO ESTABLISH AN ELECTRIC POWER RELIABILITY
ACT WERE AGAIN INTRODUCED.  SECTION 3 OF THAT PROPOSED ACT INCLUDED A
GRANT OF AUTHORITY FOR THE FPC TO ORDER WHEELING, SEE, E.G., S. 1071,
91ST CONG., 1ST SESS.  YET ANOTHER BILL, H.R. 12585, 91ST CONG., 1ST
SESS., INCLUDED A VERY BROAD PROVISION ESTABLISHING OPEN ACCESS TO
TRANSMISSION NETWORKS AT REASONABLE RATES. 

THE PROPOSED ELECTRIC POWER RELIABILITY ACT WAS REINTRODUCED IN THE
92D CONGRESS, 1ST SESSION, AS S. 294 AND H.R. 605.  H.R. 12585 FROM THE
91ST CONGRESS WAS ALSO REINTRODUCED, AS H.R. 6972, 92D CONG., 1ST SESS.
STILL ANOTHER BILL WOULD HAVE PREVENTED PROPOSED REGIONAL BULK-POWER
SUPPLY CORPORATIONS FROM CONTRACTING WITH AN ELECTRIC UTILITY UNLESS
THAT UTILITY "PERMITS) . . . THE USE OF ITS EXCESS TRANSMISSION
CAPACITY FOR THE PURPOSE OF WHEELING POWER FROM FACILITIES OF SUCH
CORPORATION . . . TO LOAD CENTERS OF OTHER ELECTRIC UTILITIES
CONTRACTING TO PURCHASE ELECTRIC POWER FROM SUCH CORPORATION."  S.
2324, H.R. 9970, 92D CONG., 1ST SESS., SEC. 103(C)(1)(B).  NONE OF
THESE BILLS WAS ENACTED. 

/5/  THE DISTRICT COURT WAS PERSUADED THAT THE RESTRICTIONS ON
WHEELING CONTAINED IN OTTER TAIL'S CONTRACTS WITH THE BUREAU OF
RECLAMATION WERE "IN REALITY, TERRITORIAL ALLOCATION SCHEMES."  331
F.SUPP.,AT 63.  I THINK THIS FINDING WAS CLEARLY ERRONEOUS. 
TERRITORIAL ALLOCATION ARRANGEMENTS THAT HAVE RUN AFOUL OF THE
ANTITRUST LAWS HAVE TRADITIONALLY BEEN HORIZONTAL, AND HAVE INVOLVED
THE ELIMINATION OF COMPETITION BETWEEN TWO ENTERPRISES THAT WERE
SIMILARLY SITUATED IN THE MARKET.  UNITED STATES V. TOPCO ASSOCIATES,
405 U.S. 596; TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S. 593;
CF. WHITE MOTOR CO. V. UNITED STATES, 372 U.S. 253, 261-264.  OTTER
TAIL AND THE BUREAU OF RECLAMATION STAND IN A VERTICAL, NOT A
HORIZONTAL, RELATIONSHIP.  FURTHERMORE, THOUGH OTTER TAIL REFUSED TO
WHEEL POWER TO TOWNS WHOSE CONSUMERS IT FORMERLY SERVED AT RETAIL, IT
DID NOT EXACT FROM THE BUREAU A PROMISE THAT THE LATTER WOULD NOT
PROVIDE POWER TO SUCH TOWNS BY ALTERNATIVE MEANS.  HENCE, I CANNOT SEE
HOW THESE CONTRACTS OPERATE AS TERRITORIAL-ALLOCATION SCHEMES.  IF
OTTER TAIL HAD DEMANDED THAT THE BUREAU NOT SELL TO FORMER OTTER TAIL
CUSTOMERS, OR IF OTTER TAIL HAD COMBINED WITH OTHER RETAILERS OF
ELECTRICITY AND UNDERTAKEN MUTUAL NONCOMPETITION AGREEMENTS, THIS WOULD
BE A DIFFERENT CASE. 

/6/  IN ORDERING PERMANENT INTERCONNECTION BETWEEN OTTER TAIL AND
THE TOWN OF ELBOW LAKE MUNICIPAL SYSTEM, FOR EXAMPLE, THE COMMISSION
CORRECTLY NOTED THAT, "THE PUBLIC INTEREST IS FAR BROADER THAN THE
ECONOMIC INTEREST OF A PARTICULAR POWER SUPPLIER . . . THE PRIVATE
COMPANY'S LACK OF ENTHUSIASM FOR . . . (THE INTERCONNECTION ORDER)
CANNOT DETER US, SO LONG AS THE PUBLIC INTEREST REQUIRES IT."  ELBOW
LAKE V. OTTER TAIL POWER CO., 46 F.P.C. 675, 678. 

/7/  THE FEDERAL POWER COMMISSION, AS NOTED ABOVE, ONLY ORDERS INTER
INTERCONNECTION UNDER THE PROVISIONS OF SEC. 202(B), 16 U.S.C. 824AB),
THOUGH IT HAS BROADER POWERS IN TIMES OF WAR OR OTHER EMERGENCY.  16
U.S.C. 824AC).  THE COMMISSION DOES NOT NORMALLY SET RATES, THOUGH
UTILITIES SUBJECT TO ITS JURISDICTION MUST FILE PROPOSED RATE SCHEDULES
WITH IT, AND IT HAS THE OPPORTUNITY OF ASSESSING THE LAWFULNESS OF
THOSE RATES.  16 U.S.C. 824D.  IN THE EVENT THE COMMISSION CONCLUDES
THAT ANY RATE OR PRACTICE IS "UNJUST, UNREASONABLE, UNDULY
DISCRIMINATORY OR PREFERENTIAL," IT DETERMINES THE "JUST AND REASONABLE
RATE . . . "  16 U.S.C. 824EA).  UNDER THESE SAME PROVISIONS, THE
COMMISSION REGULATES THE TERMS AND CONDITIONS OF INTERCONNECTIONS AND
WHEELING ARRANGEMENTS VOLUNTARILY ENTERED INTO. 

THE RESULTING SYSTEM OF REGULATION IS THUS MORE COMPREHENSIVE THAN
THE REGULATORY APPARATUS APPLICABLE TO BANK MERGERS WHICH WAS HELD TO
BE INSUFFICIENT TO OUST ANTITRUST JURISDICTION IN UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321, AND THE REGULATORY SCHEME
WITH RESPECT TO BROADCASTERS WHICH SIMILARLY FAILED TO DISPLACE THE
ANTITRUST LAWS IN UNITED STATES V. RADIO CORP. OF AMERICA, 358 U.S.
334.  NEVERTHELESS, THE CONSIDERABLE FREEDOM ALLOWED TO ELECTRIC
UTILITIES WITH RESPECT TO COORDINATION OF SERVICE PERSUADES ME THAT THE
ANTITRUST LAWS APPLY TO THE EXTENT THEY ARE NOT REPUGNANT TO SPECIFIC
FEATURES OF THE REGULATORY SCHEME.  FOR THIS REASON, LITIGATION AND
POLITICAL ACTIVITIES THAT COME WITHIN THE SO-CALLED "SHAM" EXCEPTION IN
CALIFORNIA MOTOR TRANSPORT CO. V. TRUCKING UNLIMITED, 404 U.S. 508,
MIGHT CONSTITUTE AN ANTITRUST VIOLATION.  SIMILARLY, A GENUINE
TERRITORIAL ALLOCATION AGREEMENT MIGHT BE PROHIBITED UNDER THE SHERMAN
ACT, SEE N.5, SUPRA.  WERE IT NOT FOR THE LEGISLATIVE HISTORY NOTED
ABOVE, A CONSISTENT REFUSAL TO DEAL WITH MUNICIPALLY OWNED POWER
COMPANIES MIGHT ALSO BE IMPERMISSIBLE UNDER THE SHERMAN ACT.  FOR ME,
HOWEVER, THE LEGISLATIVE HISTORY WITH RESPECT TO WHEELING AND
INTERCONNECTION IS DISPOSITIVE. 

/8/  UNLIKE THE SITUATION PRESENTED IN R.C.A., SUPRA, WHERE THE
REGULATORY AGENCY FILED A BRIEF IN THIS COURT DISAVOWING ANY CONFLICT
BETWEEN ITS REGULATORY FUNCTIONS AND THE OPERATION OF THE ANTI-TRUST
LAWS, ID., AT 350 N.18, IN THIS CASE THE FEDERAL POWER COMMISSION HAS
TAKEN THE UNUSUAL STEP OF FILING A BRIEF AS AMICUS CURIAE IN SUPPORT OF
OTTER TAIL.  THE COMMISSION POINTS OUT THAT IT WAS CONSIDERING AN
APPLICATION FOR INTERCONNECTION FILED BY THE TOWN OF ELBOW LAKE AT THE
SAME TIME THIS LAWSUIT WAS PROGRESSING IN THE DISTRICT COURT.  AN ORDER
REQUIRING LONG-TERM INTERCONNECTION BY OTTER TAIL WITH ELBOW LAKE
MUNICIPAL SYSTEM WAS ENTERED BY THE COMMISSION ON SEPTEMBER 13, 1971--
JUST FOUR DAYS AFTER THE DISTRICT COURT ENTERED JUDGMENT.  THE
COMMISSION READS ITS AUTHORITY TO ORDER INTERCONNECTION, 16 U.S.C.
824A, AS A GRANT OF EXCLUSIVE JURISDICTION IN MATTERS INVOLVING
INTERCONNECTION. 

/9/  THE DECREE OF THE DISTRICT COURT IS UNREPORTED. 

MILTON HANDLER ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE CYRUS A. FIELD, DAVID F. LUNDEEN, AND MICHAEL D. BLECHMAN. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
KAUPER, SAMUEL HUNTINGTON, HOWARD E. SHAPIRO, AND KENNETH C. ANDERSON. 
/0/
..END :






















UNITED STATES V. ENMONS, 410 U.S. 396 


       UNITED STATES V. ENMONS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

    DISTRICT OF LOUISIANA

        NO. 71-1193.  ARGUED DECEMBER 4, 1972-- DECIDED FEBRUARY
22,

           1973 


THE HOBBS ACT, WHICH MAKES IT A FEDERAL CRIME TO OBSTRUCT INTERSTATE
COMMERCE BY ROBBERY OR EXTORTION, DOES NOT REACH THE USE OF VIOLENCE
(WHICH IS READILY PUNISHABLE UNDER STATE LAW) TO ACHIEVE LEGITIMATE
UNION OBJECTIVES, SUCH AS HIGHER WAGES IN RETURN FOR GENUINE SERVICES
THAT THE EMPLOYER SEEKS.  PP. 399-411. 

335 F.SUPP.  641, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  BLACKMUN, J., FILED A
CONCURRING OPINION, POST, P. 412.  DOUGLAS, J., FILED A DISSENTING
OPINION, IN WHICH BURGER, C. J., AND POWELL AND REHNQUIST, JJ., JOINED,
POST, P. 413. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

A ONE-COUNT INDICTMENT WAS RETURNED IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF LOUISIANA CHARGING THE APPELLEES WITH
A VIOLATION OF THE HOBBS ACT, 18 U.S.C. 1951.  IN PERTINENT PART, THAT
ACT PROVIDES: 

     "(A) WHOEVER IN ANY WAY OR DEGREE OBSTRUCTS, DELAYS, OR
AFFECTS

  COMMERCE OF THE MOVEMENT OF ANY ARTICLE OR COMMODITY IN COMMERCE,

BY ROBBERY OR EXTORTION OR ATTEMPTS OR CONSPIRES SO TO DO, OR

  COMMITS OR THREATENS PHYSICAL VIOLENCE TO ANY PERSON OR PROPERTY

  IN FURTHERANCE OF A PLAN OR PURPOSE TO DO ANYTHING IN VIOLATION

  OF THIS SECTION SHALL BE FINED NOT MORE THAN $10,000 OR

  IMPRISONED NOT MORE THAN TWENTY YEARS, OR BOTH." 

"EXTORTION" IS DEFINED IN THE ACT, AS "THE OBTAINING OF PROPERTY
FROM ANOTHER, WITH HIS CONSENT, INDUCED BY WRONGFUL USE OF ACTUAL OR
THREATENED FORCE, VIOLENCE, OR FEAR . . . "  18 U.S.C. 1951(B)(2). 

AT THE TIME OF THE ALLEGED CONSPIRACY, THE EMPLOYEES OF THE GULF
STATES UTILITIES COMPANY WERE OUT ON STRIKE.  THE APPELLEES ARE MEMBERS
AND OFFICIAL OF LABOR UNIONS THAT WERE SEEKING A NEW COLLECTIVE
BARGAINING AGREEMENT WITH THAT COMPANY.  THE INDICTMENT CHARGED THAT
THE APPELLEES AND TWO NAMED COCONSPIRATORS CONSPIRED TO OBSTRUCT
COMMERCE, AND THAT AS PART OF THAT CONSPIRACY, THEY 

"WOULD OBTAIN THE PROPERTY OF THE GULF STATES UTILITIES COMPANY IN
THE FORM OF WAGES AND OTHER THINGS OF VALUE WITH THE CONSENT OF THE
GULF STATES UTILITIES COMPANY . . . , SUCH CONSENT TO BE INDUCED BY THE
WRONGFUL USE OF ACTUAL FORCE, VIOLENCE AND FEAR OF ECONOMIC INJURY BY
(THE APPELLEES) AND COCONSPIRATORS, IN THAT (THE APPELLEES) AND THE
COCONSPIRATORS DID COMMIT ACTS OF PHYSICAL VIOLENCE AND DESTRUCTION
AGAINST PROPERTY OWNED BY THE GULF STATES UTILITIES COMPANY IN ORDER TO
FORCE SAID COMPANY TO AGREE TO A CONTRACT WITH LOCAL 2286 OF THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS CALLING FOR HIGHER
WAGES AND OTHER MONETARY BENEFITS." 

FIVE SPECIFIC ACTS OF VIOLENCE WERE CHARGED TO HAVE BEEN COMMITTED
IN FURTHERANCE OF THE CONSPIRACY-- FIRING HIGHPOWERED RIFLES AT THREE
COMPANY TRANSFORMERS, DRAINING THE OIL FROM A COMPANY TRANSFORMER, AND
BLOWING UP A TRANSFORMER SUBSTATION OWNED BY THE COMPANY.  IN SHORT,
THE INDICTMENT CHARGED THAT THE APPELLEES HAD CONSPIRED TO USE AND DID
IN FACT USE VIOLENCE TO OBTAIN FOR THE STRIKING EMPLOYEES HIGHER WAGES
AND OTHER EMPLOYMENT BENEFITS FROM THE COMPANY. 

THE DISTRICT COURT GRANTED THE APPELLEES' MOTION TO DISMISS THE
INDICTMENT FOR FAILURE TO STATE AN OFFENSE UNDER THE HOBBS ACT.  335
F.SUPP.  641.  THE COURT NOTED THAT THE APPELLEES WERE UNION MEMBERS ON
STRIKE AGAINST THEIR EMPLOYER, GULF STATES, AND THAT BOTH THE STRIKE
AND ITS OBJECTIVE OF HIGHER WAGES WERE LEGAL.  THE COURT EXPRESSED THE
VIEW THAT IF "THE WAGES SOUGHT BY VIOLENT ACTS ARE WAGES TO BE PAID FOR
UNNEEDED OR UNWANTED SERVICES, OR FOR NO SERVICES AT ALL," THEN THAT
VIOLENCE WOULD CONSTITUTE EXTORTION WITHIN THE MEANING OF THE HOBBS
ACT.  ID., AT 645.  BUT IN THIS CASE, BY CONTRAST, THE COURT NOTED THAT
THE INDICTMENT ALLEGED THE USE OF FORCE TO OBTAIN LEGITIMATE UNION
OBJECTIVES:  "THE UNION HAD A RIGHT TO DISRUPT THE BUSINESS OF THE
EMPLOYER BY LAWFULLY STRIKING FOR HIGHER WAGES.  ACTS OF VIOLENCE
OCCURRING DURING A LAWFUL STRIKE AND RESULTING IN DAMAGE TO PERSONS OR
PROPERTY ARE UNDOUBTEDLY PUNISHABLE UNDER STATE LAW.  TO PUNISH PERSONS
FOR SUCH ACTS OF VIOLENCE WAS NOT THE PURPOSE OF THE HOBBS ACT."  ID.,
AT 646.  THE COURT FOUND "NO CASE WHERE A COURT HAS GONE SO FAR AS TO
HOLD THE TYPE OF ACTIVITY INVOLVED HERE TO BE A VIOLATION OF THE HOBBS
ACT."  ID., AT 645. 

WE NOTED PROBABLE JURISDICTION OF THE GOVERNMENT'S APPEAL, 406 U.S.
916 916, /1/  TO DETERMINE WHETHER THE HOBBS ACT PROSCRIBES VIOLENCE
COMMITTED DURING A LAWFUL STRIKE FOR THE PURPOSE OF INDUCING AN
EMPLOYER'S AGREEMENT TO LEGITIMATE COLLECTIVE-BARGAINING DEMANDS. 

        I 

THE GOVERNMENT CONTENDS THAT THE STATUTORY LANGUAGE UNAMBIGUOUSLY
AND WITHOUT QUALIFICATION PROSCRIBES INTERFERENCE WITH COMMERCE BY
"EXTORTION," AND THAT IN TERMS OF THE STATUTE, "EXTORTION" IS "THE
OBTAINING OF PROPERTY FROM ANOTHER, WITH HIS CONSENT, INDUCED BY
WRONGFUL USE OF ACTUAL OR THREATENED FORCE, VIOLENCE, OR FEAR . . . "
WAGES ARE THE "PROPERTY" OF THE EMPLOYER, THE ARGUMENT CONTINUES, AND
STRIKE VIOLENCE TO OBTAIN SUCH "PROPERTY" THUS FALLS WITHIN THE LITERAL
PROSCRIPTION OF THE ACT.  BUT THE LANGUAGE OF THE STATUTE IS HARDLY AS
CLEAR AS THE GOVERNMENT WOULD MAKE IT OUT TO BE.  ITS INTERPRETATION OF
THE ACT SLIGHTS THE WORDING OF THE STATUTE THAT PROSCRIBES OBTAINING
PROPERTY ONLY BY THE "WRONGFUL" USE OF ACTUAL OR THREATENED FORCE,
VIOLENCE, OR FEAR.  THE TERM "WRONGFUL," WHICH ON THE FACE OF THE
STATUTE MODIFIES THE USE OF EACH OF THE ENUMERATED MEANS OF OBTAINING
PROPERTY-- ACTUAL OR THREATENED FORCE, VIOLENCE, OR FEAR /2/  -- WOULD
BE SUPERFLUOUS IF IT ONLY SERVED TO DESCRIBE THE MEANS USED.  FOR IT
WOULD BE REDUNDANT TO SPEAK OF "WRONGFUL VIOLENCE" OR "WRONGFUL FORCE"
SINCE, AS THE GOVERNMENT ACKNOWLEDGES, ANY VIOLENCE OR FORCE TO OBTAIN
PROPERTY IS "WRONGFUL."  /3/  RATHER, "WRONGFUL" HAS MEANING IN THE ACT
ONLY IF IT LIMITS THE STATUTE'S COVERAGE TO THOSE INSTANCES WHERE THE
OBTAINING OF THE PROPERTY WOULD ITSELF BE "WRONGFUL" BECAUSE THE
ALLEGED EXTORTIONIST HAS NO LAWFUL CLAIM TO THAT PROPERTY. 

CONSTRUED IN THIS FASHION, THE HOBBS ACT HAS PROPERLY BEEN HELD TO
REACH INSTANCES WHERE UNION OFFICIALS THREATENED FORCE OR VIOLENCE
AGAINST AN EMPLOYER IN ORDER TO OBTAIN PERSONAL PAYOFFS, /4/  AND WHERE
UNIONS USED THE PROSCRIBED MEANS TO EXACT "WAGE" PAYMENTS FROM
EMPLOYERS IN RETURN FOR "IMPOSED, UNWANTED, SUPERFLUOUS AND FICTITIOUS
SERVICES" OF WORKERS.  /5/  FOR IN THOSE SITUATIONS, THE EMPLOYER'S
PROPERTY HAS BEEN MISAPPROPRIATED.  BUT THE LITERAL LANGUAGE OF THE
STATUTE WILL NOT BEAR THE GOVERNMENT'S SEMANTIC ARGUMENT THAT THE HOBBS
ACT REACHES THE USE OF VIOLENCE TO ACHIEVE LEGITIMATE UNION OBJECTIVES,
SUCH AS HIGHER WAGES IN RETURN FOR GENUINE SERVICES WHICH THE EMPLOYER
SEEKS.  IN THAT TYPE OF CASE, THERE HAS BEEN NO "WRONGFUL" TAKING OF
THE EMPLOYER'S PROPERTY; HE HAS PAID FOR THE SERVICES HE BARGAINED FOR,
AND THE WORKERS RECEIVE THE WAGES TO WHICH THEY ARE ENTITLED IN
COMPENSATION FOR THEIR SERVICES. 

        II 

THE LEGISLATIVE FRAMEWORK OF THE HOBBS ACT DISPELS ANY AMBIGUITY IN
THE WORDING OF THE STATUTE AND MAKES IT CLEAR THAT THE ACT DOES NOT
APPLY TO THE USE OF FORCE TO ACHIEVE LEGITIMATE LABOR ENDS.  THE
PREDECESSOR OF THE HOBBS ACT, SEC. 2 OF THE ANTI-RACKETEERING ACT OF
1934, 48 STAT. 979, /6/  PROSCRIBED, IN CONNECTION WITH INTERSTATE
COMMERCE, THE EXACTION OF VALUABLE CONSIDERATION BY FORCE, VIOLENCE, OR
COERCION, "NOT INCLUDING, HOWEVER, THE PAYMENT OF WAGES BY A BONA-FIDE
EMPLOYER TO A BONA-FIDE EMPLOYEE . . . "  /7/  IN UNITED STATES V.
LOCAL 807, 315 U.S. 521, THE COURT HELD THAT THIS EXCEPTION COVERED THE
MEMBERS OF A NEW YORK CITY TRUCK DRIVERS UNION WHO, BY VIOLENCE OR
THREATS, EXACTED PAYMENTS FOR THEMSELVES FROM OUT-OF-TOWN TRUCKERS IN
RETURN FOR THE UNWANTED AND SUPERFLUOUS SERVICE OF DRIVING OUT-OF-TOWN
TRUCKS TO AND FROM THE CITY.  THE NEW YORK CITY TEAMSTERS WOULD LIE IN
WAIT FOR THE OUT-OF-TOWN TRUCKS, AND THEN DEMAND PAYMENT FROM THE
OWNERS AND DRIVERS IN RETURN FOR ALLOWING THE TRUCKS TO PROCEED INTO
THE CITY.  THE TEAMSTERS SOMETIMES DROVE THE ARRIVING TRUCKS INTO THE
CITY, BUT IN OTHER INSTANCES, THE OUT-OF-TOWN TRUCKERS PAID THE FEES
BUT REJECTED THE TEAMSTERS' SERVICES AND DROVE THE TRUCKS THEMSELVES. 
IN SEVERAL CASES THERE WAS EVIDENCE THAT, HAVING EXACTED THEIR FEES,
THE CITY DRIVERS DISAPPEARED WITHOUT OFFERING TO PERFORM ANY SERVICES
AT ALL.  ID., AT 526.  SEE ALSO ID., AT 539 (STONE, C. J.,
DISSENTING).  THE COURT HELD THAT THE ACTIVITIES OF THE CITY TEAMSTERS
WERE INCLUDED WITHIN THE WAGE EXCEPTION TO THE ANTI-RACKETEERING ACT
ALTHOUGH WHAT WORK THEY PERFORMED WAS UNNEEDED AND UNWANTED, AND
ALTHOUGH IN SOME CASE THEIR WORK WAS REJECTED. 

CONGRESSIONAL DISAPPROVAL OF THIS DECISION WAS SWIFT.  SEVERAL BILLS
/8/  WERE INTRODUCED WITH THE NARROW PURPOSE OF CORRECTING THE RESULT
IN THE LOCAL 807 CASE.  /9/  H.R. 32, WHICH BECAME THE HOBBS ACT, 60
STAT. 420, ELIMINATED THE WAGE EXCEPTION THAT HAD BEEN THE BASIS FOR
THE LOCAL 807 DECISION.  /10/  BUT, AS FREQUENTLY EMPHASIZED ON THE
FLOOR OF THE HOUSE, THE LIMITED EFFECT OF THE BILL WAS TO SHUT OFF THE
POSSIBILITY OPENED UP BY THE LOCAL 807 CASE, THAT UNION MEMBERS COULD
USE THEIR PROTECTED STATUS TO EXACT PAYMENTS FROM EMPLOYERS FOR
IMPOSED, UNWANTED, AND SUPERFLUOUS SERVICES.  AS CONGRESSMAN HANCOCK
EXPLAINED: 

"THIS BILL IS DESIGNED SIMPLY TO PREVENT BOTH UNION MEMBERS AND
NONUNION PEOPLE FROM MAKING USE OF ROBBERY AND EXTORTION UNDER THE
GUISE OF OBTAINING WAGES IN THE OBSTRUCTION OF INTERSTATE COMMERCE. 
THAT IS ALL IT DOES. 

        .          .          .          . 

"(THIS BILL IS MADE NECESSARY BY THE AMAZING DECISION OF THE SUPREME
COURT IN THE CASE OF THE UNITED STATES AGAINST TEAMSTERS'  UNION 807, 3
YEARS AGO.  THAT DECISION PRACTICALLY NULLIFIED THE ANTI-RACKETEERING
BILL OF 1934 . . . IN EFFECT THE SUPREME COURT HELD THAT . . . MEMBERS
OF THE TEAMSTERS' UNION . . . WERE EXEMPT FROM THE PROVISIONS OF THAT
LAW WHEN ATTEMPTING BY THE USE OF FORCE OR THE THREAT OF VIOLENCE TO
OBTAIN WAGES FOR A JOB WHETHER THEY RENDERED ANY SERVICE OR NOT."  91
CONG.REC.  11900.  CONGRESSMAN HANCOCK PROCEEDED TO READ APPROVINGLY
FROM AN EDITORIAL WHICH CHARACTERIZED THE TEAMSTERS' ACTION IN THE
LOCAL 807 CASE AS "COMPELLING THE TRUCKERS TO PAY DAY'S WAGES TO LOCAL
UNION DRIVERS WHOSE SERVICES WERE NEITHER WANTED NOR NEEDED."  IBID.
CONGRESSMAN FELLOWS STRESSED THE FACT THAT THE FACTS OF THE LOCAL 807
CASE SHOWED THAT "THESE STICK-UP MEN DISAPPEARED AS SOON AS THE MONEY
WAS PAID WITHOUT RENDERING OR OFFERING TO RENDER ANY SERVICE."  ID., AT
11907.  AND CONGRESSMAN RIVERS CHARACTERIZED THE FACTS OF THE LOCAL 807
CASE AS "NOTHING SHORT OF HIJACKING, INTIMIDATION, EXTORTION, AND OUT
AND-OUT HIGHWAY ROBBERY."  ID., AT 11917.  /11/ 

BUT BY ELIMINATING THE WAGE EXCEPTION TO THE ANTI-RACKETEERING ACT,
THE HOBBS ACT DID NOT SWEEP WITHIN ITS REACH VIOLENCE DURING A STRIKE
TO ACHIEVE LEGITIMATE COLLECTIVE-BARGAINING OBJECTIVES.  IT WAS
REPEATEDLY EMPHASIZED IN THE DEBATES THAT THE BILL DID NOT "INTERFERE
IN ANY WAY WITH ANY LEGITIMATE LABOR OBJECTIVE OR ACTIVITY"; /12/
"THERE IS NOT A THING IN IT TO INTERFERE IN THE SLIGHTEST DEGREE WITH
ANY LEGITIMATE ACTIVITY ON THE PART OF LABOR PEOPLE OR LABOR UNIONS . .
. "  /13/  AND CONGRESSMAN JENNINGS, IN RESPONDING TO A QUESTION
CONCERNING THE ACT'S COVERAGE, MADE IT CLEAR THAT THE ACT "DOES NOT
HAVE A THING IN THE WORLD TO DO WITH STRIKES."  ID., AT 11912. 

INDEED, IN INTRODUCING HIS ORIGINAL BILL, CONGRESSMAN HOBBS /14/
EXPLICITLY REFUTED THE SUGGESTION THAT STRIKE VIOLENCE TO ACHIEVE A
UNION'S LEGITIMATE OBJECTIVES WAS ENCOMPASSED BY THE ACT:  /15/ 

     "MR. MARCANTONIO.  ALL RIGHT.  IN CONNECTION WITH A STRIKE, IF

  AN INCIDENT OCCURS WHICH INVOLVES-- 

      "MR. HOBBS.  THE GENTLEMAN NEED GO NO FURTHER.  THIS BILL
DOES

  NOT COVER STRIKES OR ANY QUESTION RELATING TO STRIKES. 

     "MR. MARCANTONIO.  WILL THE GENTLEMAN PUT A PROVISION IN THE
BILL STATING SO? 

     "MR. HOBBS.  WE DO NOT HAVE TO, BECAUSE A STRIKE IS PERFECTLY

  LAWFUL AND HAS BEEN SO DESCRIBED BY THE SUPREME COURT AND BY THE

  STATUTES WE HAVE PASSED.  THIS BILL TAKES OFF FROM THE

  SPRINGBOARD THAT THE ACT MUST BE UNLAWFUL TO COME WITHIN THE

PURVIEW OF THIS BILL. 

     "MR. MARCANTONIO.  THAT DOES NOT ANSWER MY POINT.  MY POINT IS

  THAT AN INCIDENT SUCH AS A SIMPLE ASSAULT WHICH TAKES PLACE IN A

  STRIKE COULD HAPPEN.  AM I CORRECT? 

     "MR. HOBBS.  CERTAINLY. 

   "MR. MARCANTONIO.  THAT THEN COULD BECOME AN EXTORTION UNDER

  THE GENTLEMAN'S BILL, AND THAT STRIKER AS WELL AS HIS UNION

  OFFICIALS COULD BE CHARGED WITH VIOLATION OF SECTIONS IN THIS

  BILL. 

     "MR. HOBBS.  I DISAGREE WITH THAT AND DENY IT IN TOTO."  89
CONG.REC.  3213.  /16/ 

THE GOVERNMENT WOULD DERIVE A DIFFERENT LESSON FROM THE LEGISLATIVE
HISTORY.  IT POINTS TO STATEMENTS MADE DURING THE FLOOR DEBATES THAT
THE ACT WAS MEANT TO HAVE "BROAD COVERAGE" AND, UNLIKE ITS PREDECESSOR,
TO ENCOMPASS THE "EMPLOYER-EMPLOYEE" RELATIONSHIP.  BUT THAT PROVES NO
MORE THAN THAT THE ACHIEVEMENT OF ILLEGITIMATE OBJECTIVES BY EMPLOYEES
OR THEIR REPRESENTATIVES, SUCH AS THE EXACTION OF PERSONAL PAYOFFS, OR
THE PURSUIT OF "WAGES" FOR UNWANTED OR FICTITIOUS SERVICES, WOULD NOT
BE EXEMPTED FROM THE ACT SOLELY BECAUSE THE EXTORTIONIST WAS AN
EMPLOYEE OR UNION OFFICIAL AND THE VICTIM AN EMPLOYER.  /17/  THE
GOVERNMENT WOULD ALSO FIND SUPPORT FOR ITS EXPANSIVE INTERPRETATION OF
THE STATUTE IN THE REJECTION OF TWO AMENDMENTS, ONE PROPOSED BY
CONGRESSMAN CELLER, THE OTHER BY CONGRESSMAN LAFOLLETTE, WHICH WOULD
HAVE INSERTED IN THE ACT AN EXCEPTION FOR CASES WHERE VIOLENCE WAS USED
TO OBTAIN THE PAYMENT OF WAGES BY A BONA-FIDE EMPLOYER TO A BONA-FIDE
EMPLOYEE.  SEE 91 CONG.REC.  11913, 11917, AND 11919, 11922.  BUT BOTH
AMENDMENTS WERE REJECTED SOLELY BECAUSE THEY WOULD HAVE OPERATED TO
CONTINUE THE EFFECT OF THE LOCAL 807 CASE.  /18/  THEIR REJECTION THUS
PROVES NOTHING MORE THAN THAT CONGRESS WAS INTENT ON UNDOING THE
RESTRICTIVE IMPACT OF THAT CASE. 

        III 

IN THE NEARLY THREE DECADES THAT HAVE PASSED SINCE THE ENACTMENT OF
THE HOBBS ACT, NO REPORTED CASE HAS UPHELD THE THEORY THAT THE ACT
PROSCRIBES THE USE OF FORCE TO ACHIEVE LEGITIMATE COLLECTIVE-BARGAINING
DEMANDS. 

THE ONLY PREVIOUS CASE IN THIS COURT RELEVANT TO THE ISSUE, UNITED
STATES V. GREEN, 350 U.S. 415, HELD NO MORE THAN THAT THE HOBBS ACT HAD
ACCOMPLISHED ITS OBJECTIVE OF OVERRULING THE LOCAL 807 CASE.  THE
ALLEGED EXTORTIONS IN THAT CASE, AS IN LOCAL 807, CONSISTED OF ATTEMPTS
TO OBTAIN SO-CALLED WAGES FOR "IMPOSED, UNWANTED, SUPERFLUOUS AND
FICTITIOUS SERVICES OF LABORERS . . . "  ID., AT 417.  THE INDICTMENT
CHARGED THAT THE EMPLOYER'S CONSENT WAS OBTAINED "BY THE WRONGFUL USE,
TO WIT, THE USE FOR THE PURPOSES AFORESAID, OF ACTUAL AND THREATENED
FORCE, VIOLENCE AND FEAR . . . "  IBID.  THE GOVERNMENT THUS DID NOT
RELY, AS IT DOES IN THE PRESENT CASE, SOLELY ON THE USE OF FORCE IN AN
EMPLOYER-EMPLOYEE RELATIONSHIP; IT ALLEGED A WRONGFUL PURPOSE-- TO
OBTAIN MONEY FROM THE EMPLOYER THAT THE UNION OFFICIALS HAD NO
LEGITIMATE RIGHT TO DEMAND.  WE CONCLUDED THAT THE HOBBS ACT COULD
REACH EXTORTION IN AN EMPLOYER-EMPLOYEE RELATIONSHIP AND THAT PERSONAL
PROFIT TO THE EXTORTIONIST WAS NOT REQUIRED, BUT OUR HOLDING WAS
CAREFULLY LIMITED TO THE CHARGES IN THAT CASE:  "WE RULE ONLY ON THE
ALLEGATIONS OF THE INDICTMENT AND HOLD THAT THE ACTS CHARGED AGAINST
APPELLEES FALL WITHIN THE TERMS OF THE ACT."  ID., AT 421. 

A PRIOR DECISION IN THE THIRD CIRCUIT, UNITED STATES V. KEMBLE, 198
F.2D 889, ON WHICH THE GOVERNMENT RELIED IN GREEN, ALSO CONCERNED THE
EXACTION, BY THREATS AND VIOLENCE, OF WAGES FOR SUPERFLUOUS SERVICES. 
IN AFFIRMING A CONVICTION UNDER THE HOBBS ACT OF A UNION BUSINESS AGENT
FOR USING ACTUAL AND THREATENED VIOLENCE AGAINST AN OUT-OF-TOWN DRIVER
IN AN ATTEMPT TO FORCE HIM TO HIRE A LOCAL UNION MEMBER, THE COURT OF
APPEALS CAREFULLY LIMITED ITS HOLDING: 

"WE NEED NOT CONSIDER THE NORMAL DEMAND FOR WAGES AS COMPENSATION FOR
SERVICES DESIRED BY OR VALUABLE TO THE EMPLOYER.  IT IS ENOUGH FOR THIS
CASE, AND ALL WE DECIDE, THAT PAYMENT OF MONEY FOR IMPOSED, UNWANTED
AND SUPERFLUOUS SERVICES . . . IS WITHIN THE LANGUAGE AND INTENDMENT OF
THE STATUTE."  ID., AT 892. 

MOST RECENTLY, IN UNITED STATES V. CALDES, 457 F.2D 74, THE COURT OF
APPEALS FOR THE NINTH CIRCUIT WAS SQUARELY PRESENTED WITH THE QUESTION
AT ISSUE IN THIS CASE.  TWO UNION OFFICIALS WERE CONVICTED OF HOBBS ACT
VIOLATIONS IN THAT THEY DAMAGED PROPERTY OF A COMPANY WITH WHICH THEY
WERE NEGOTIATING FOR A COLLECTIVE-BARGAINING AGREEMENT, IN AN ATTEMPT
TO PRESSURE THE COMPANY INTO AGREEING TO THE UNION CONTRACT. 
CONCLUDING THAT THE ACT WAS NOT INTENDED TO REACH MILITANT ACTIVITY IN
THE PURSUIT OF LEGITIMATE UNIONS ENDS, THE COURT REVERSED THE
CONVICTIONS AND ORDERED THE INDICTMENT DISMISSED. 

INDEED, NOT UNTIL THE INDICTMENTS WERE RETURNED IN 1970 IN THIS AND
SEVERAL OTHER CASES HAS THE GOVERNMENT EVEN SOUGHT TO PROSECUTE UNDER
THE HOBBS ACT ACTUAL OR THREATENED VIOLENCE EMPLOYED TO SECURE A UNION
CONTRACT "CALLING FOR HIGHER WAGES AND OTHER MONETARY BENEFITS."  /19/
YET, THROUGHOUT THIS PERIOD, THE NATION HAS WITNESSES COUNTLESS
ECONOMIC STRIKES, OFTEN UNFORTUNATELY PUNCTUATED BY VIOLENCE.  IT IS
UNLIKELY THAT IF CONGRESS HAD INDEED WROUGHT SUCH A MAJOR EXPANSION OF
FEDERAL CRIMINAL JURISDICTION IN ENACTING THE HOBBS ACT, ITS ACTION
WOULD HAVE SO LONG PASSED UNOBSERVED.  SEE UNITED STATES V. LAUB, 385
U.S. 475, 485. 

        IV 

THE GOVERNMENT'S BROAD CONCEPT OF EXTORTION-- THE "WRONGFUL" USE OF
FORCE TO OBTAIN EVEN THE LEGITIMATE UNION DEMANDS OF HIGHER WAGES-- IS
NOT EASILY RESTRICTED.  IT WOULD COVER ALL OVERTLY COERCIVE CONDUCT IN
THE COURSE OF AN ECONOMIC STRIKE, OBSTRUCTING, DELAYING, OR AFFECTING
COMMERCE.  THE WORKER WHO THREW A PUNCH ON A PICKET LINE, OR THE
STRIKER WHO DEFLATED THE TIRES ON HIS EMPLOYER'S TRUCK WOULD BE SUBJECT
TO A HOBBS ACT PROSECUTION AND THE POSSIBILITY OF 20 YEARS'
IMPRISONMENT AND A $10,000 FINE.  /20/ 

EVEN IF THE LANGUAGE AND HISTORY OF THE ACT WERE LESS CLEAR THAN WE
HAVE FOUND THEM TO BE, THE ACT COULD NOT PROPERLY BE EXPANDED AS THE
GOVERNMENT SUGGESTS-- FOR TWO RELATED REASONS.  FIRST, THIS BEING A
CRIMINAL STATUTE, IT MUST BE STRICTLY CONSTRUED, AND ANY AMBIGUITY MUST
BE RESOLVED IN FAVOR OF LENITY.  UNITED STATES V. WILTBERGER, 5 WHEAT. 
76, 95; UNITED STATES V. HALSETH, 342 U.S. 277, 280; BELL V. UNITED
STATES, 349 U.S. 81, 83; ARROYO V. UNITED STATES, 359 U.S. 419, 424;
REWIS V. UNITED STATES, 401 U.S. 808, 812.  SECONDLY, IT WOULD REQUIRE
STATUTORY LANGUAGE MUCH MORE EXPLICIT THAN THAT BEFORE US HERE TO LEAD
TO THE CONCLUSION THAT CONGRESS INTENDED TO PUT THE FEDERAL GOVERNMENT
IN THE BUSINESS OF POLICING THE ORDERLY CONDUCT OF STRIKES.  NEITHER
THE LANGUAGE OF THE HOBBS ACT NOR ITS LEGISLATIVE HISTORY CAN JUSTIFY
THE CONCLUSION THAT CONGRESS INTENDED TO WORK SUCH AN EXTRAORDINARY
CHANGE IN FEDERAL LABOR LAW OR SUCH AN UNPRECEDENTED INCURSION INTO THE
CRIMINAL JURISDICTION OF THE STATES.  SEE SAN DIEGO BLDG. TRADES
COUNCIL V. GARMON, 359 U.S. 236, 247-248; UNITED CONSTR.  WORKERS V.
LABURNUM CONSTR.  CORP., 347 U.S. 656, 665; GARNER V. TEAMSTERS LOCAL
776, 346 U.S. 485, 488; UAW LOCAL 232 V. WISCONSIN EMPLOYMENT RELATIONS
BD., 336 U.S. 245, 253. 

AS WE SAID LAST TERM: 

"(UNLESS CONGRESS CONVEYS ITS PURPOSE CLEARLY, IT WILL NOT BE DEEMED
TO HAVE SIGNIFICANTLY CHANGED THE FEDERAL-STATE BALANCE.  CONGRESS HAS
TRADITIONALLY BEEN RELUCTANT TO DEFINE AS A FEDERAL CRIME CONDUCT
READILY DENOUNCED AS CRIMINAL BY THE STATES . . . (WE WILL NOT BE QUICK
TO ASSUME THAT CONGRESS HAS MEANT TO EFFECT A SIGNIFICANT CHANGE IN THE
SENSITIVE RELATION BETWEEN FEDERAL AND STATE CRIMINAL JURISDICTION." 
UNITED STATES V. BASS, 404 U.S. 336, 349 (FOOTNOTES OMITTED). 

THE DISTRICT COURT WAS CORRECT IN DISMISSING THE INDICTMENT.  ITS
JUDGMENT IS AFFIRMED. 

              IT IS SO ORDERED. 

/0/  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MILTON
SMITH AND JERRY KRONENBERG FOR THE CHAMBER OF COMMERCE OF THE UNITED
STATES, AND BY ARTHUR B. HANSON AND RALPH N. ALBRIGHT, JR., FOR THE
AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING AFFIRMANCE. 

/1/  THIS APPEAL WAS TAKEN UNDER 18 U.S.C. 3731(1964 ED.).  THE 1971
AMENDMENT TO THE CRIMINAL APPEALS ACT, PROVIDING THAT ALL APPEALS FROM
DISMISSALS OF INDICTMENTS OR INFORMATIONS MUST BE TAKEN TO THE COURTS
OF APPEALS, DOES NOT APPLY TO CASES INSTITUTED BEFORE JANUARY 2, 1971. 
OMNIBUS CRIME CONTROL ACT OF 1970, PUB. LAW NO. 91-644, SEC. 14(A), 84
STAT. 1890, CODIFIED, 18 U.S.C. 3731.  SEE UNITED STATES V. JORN, 400
U.S. 470, 474 N. 1, 477-478, N. 6.  THE PRESENT INDICTMENT WAS FILED ON
OCTOBER 15, 1970. 

/2/  CONGRESSMAN HOBBS INDICATED THAT "WRONGFUL" WAS TO MODIFY THE
ENTIRE SECTION.  91 CONG.REC.  11908. 

/3/  THE GOVERNMENT SUGGESTS A CONVOLUTED CONSTRUCTION OF
"WRONGFUL."  IT CONCEDES THAT WHEN THE MEANS USED ARE NOT "WRONGFUL,"
SUCH AS WHERE FEAR OF ECONOMIC LOSS FROM A STRIKE IS EMPLOYED, THEN THE
OBJECTIVE MUST BE ILLEGAL.  IF, ON THE OTHER HAND, "WRONGFUL" FORCE AND
VIOLENCE ARE USED, EVEN FOR A LEGAL OBJECTIVE, THE GOVERNMENT CONTENDS
THAT THE STATUTE IS SATISFIED.  BUT THAT INTERPRETATION SIMPLY ACCEPTS
THE REDUNDANCY OF THE TERM "WRONGFUL" WHENEVER IT APPLIES TO "FORCE"
AND "VIOLENCE" IN THE STATUTE. 

/4/  SEE, E.G., UNITED STATES V. IOZZI, 420 F.2D 512; UNITED STATES
V. KRAMER, 355 F.2D 891, CERT. GRANTED AND CASE REMANDED FOR
RESENTENCING, 384 U.S. 100; BIANCHI V. UNITED STATES, 219 F.2D 182. 

/5/  SEE, E.G., UNITED STATES V. GREEN, 350 U.S. 415, 417; UNITED
STATES V. KEMBLE, 198 F.2D 889. 

/6/  SECTION 2 OF THE ACT PROVIDED: 

"ANY PERSON WHO, IN CONNECTION WITH OR IN RELATION TO ANY ACT IN ANY
WAY OR IN ANY DEGREE AFFECTING TRADE OR COMMERCE OR ANY ARTICLE OR
COMMODITY MOVING OR ABOUT TO MOVE IN TRADE OR COMMERCE-- 

"(A) OBTAINS OR ATTEMPTS TO OBTAIN, BY THE USE OF OR ATTEMPT TO USE
OR THREAT TO USE FORCE, VIOLENCE, OR COERCION, THE PAYMENT OF MONEY OR
OTHER VALUABLE CONSIDERATIONS, OR THE PURCHASE OR RENTAL OF PROPERTY OR
PROTECTIVE SERVICES, NOT INCLUDING, HOWEVER, THE PAYMENT OF WAGES BY A
BONA-FIDE EMPLOYER TO A BONA-FIDE EMPLOYEE; OR 

"(B) OBTAINS THE PROPERTY OF ANOTHER, WITH HIS CONSENT, INDUCED BY
WRONGFUL USE OF FORCE OR FEAR, OR UNDER COLOR OF OFFICIAL RIGHT; OR 

"(C) COMMITS OR THREATENS TO COMMIT AN ACT OF PHYSICAL VIOLENCE OR
PHYSICAL INJURY TO A PERSON OR PROPERTY IN FURTHERANCE OF A PLAN OR
PURPOSE TO VIOLATE SECTIONS (A) OR (B); OR 

"(D) CONSPIRES OR ACTS CONCERTEDLY WITH ANY OTHER PERSON OR PERSONS
TO COMMIT ANY OF THE FOREGOING ACTS; SHALL, UPON CONVICTION THEREOF, BE
GUILTY OF A FELONY AND SHALL BE PUNISHED BY IMPRISONMENT FROM ONE TO
TEN YEARS OR BY A FINE OF $10,000, OR BOTH." 

/7/  SEE SEC. 2(A), QUOTED IN N. 6, SUPRA.  WHILE THE SPECIFIC WAGE
EXCEPTION WAS FOUND ONLY IN SEC. 2(A) OF THE ACT, SEC. 3(B) EXCLUDED
"WAGES PAID BY A BONA-FIDE EMPLOYER TO A BONA-FIDE EMPLOYEE" FROM THE
DEFINITION OF "PROPERTY," "MONEY," OR OTHER "VALUABLE CONSIDERATIONS." 
THE WAGE EXCEPTION THUS PERMEATED THE ENTIRE ACT.  UNITED STATES V.
GREEN, 350 U.S.,AT 419 N. 4; UNITED STATES V. LOCAL 807, 315 U.S. 521,
527 N. 2. 

/8/  S. 2347, 77TH CONG., 2D SESS.; H.R. 6872, 77TH CONG., 2D SESS.;
H.R. 7067, 77TH CONG., 2D SESS.; H.R. 653, 78TH CONG., 1ST SESS.; H.R.
32, 79TH CONG., 1ST SESS.  SEE CALLANAN V. UNITED STATES, 364 U.S. 587,
591 N. 5; UNITED STATES V. GREEN, SUPRA, AT 419 N. 5. 

/9/  SEE UNITED STATES V. GREEN, SUPRA, AT 419 N. 5; NOTE, LABOR
FACES THE AMENDED ANTI-RACKETEERING ACT, 101 U.PA.L.REV.  1030, 1033
1034(1953). 

/10/  THE HOBBS ACT ALSO ELIMINATED THE PROVISO IN SEC. 6 OF THE
ANTI ANTI-RACKETEERING ACT OF 1934:  "THAT NO COURT OF THE UNITED
STATES SHALL CONSTRUE OR APPLY ANY OF THE PROVISIONS OF THIS ACT IN
SUCH MANNER AS TO IMPAIR, DIMINISH, OR IN ANY MANNER AFFECT THE RIGHTS
OF BONA-FIDE LABOR ORGANIZATIONS IN LAWFULLY CARRYING OUT THE
LEGITIMATE OBJECTS THEREOF, AS SUCH RIGHTS ARE EXPRESSED IN EXISTING
STATUTES OF THE UNITED STATES."  THAT PROVISO WAS ONE OF THE SUPPORTS
FOR THE LOCAL 807 DECISION, SEE 315 U.S.,AT 535, AND IT WAS ELIMINATED
TO PREVENT RELIANCE ON THAT CLAUSE AS A MEANS OF RESUSCITATING THE
LOCAL 807 DECISION.  SEE 91 CONG.REC.  11912 (REMARKS OF REP. HOBBS). 

/11/  SEE ALSO 91 CONG.REC.  11842 (REMARKS OF REP. MICHENER); ID.,
AT 11905 (REMARKS OF REP. ROBSION); ID., AT 11909 (REMARKS OF REP.
SUMNERS); ID., AT 11912-11913 (REMARKS OF REP. WHITTINGTON). 

IN ITS REPORT ON THE BILL, THE HOUSE COMMITTEE ON THE JUDICIARY
REPRODUCED THIS COURT'S DECISION IN THE LOCAL 807 CASE AND CONCLUDED
THAT "(THE NEED FOR THE LEGISLATION WAS EMPHASIZED BY THE OPINION OF
THE SUPREME COURT IN . . . UNITED STATES V. LOCAL 807 . . . "  H.R.
REP. NO. 238, 79TH CONG., 1ST SESS., 10.  SEE ALSO S. REP. NO. 1516,
79TH CONG., 2D SESS.     /12/  91 CONG.REC.  11841 (REMARKS OF REP.
WALTER). 

/13/  ID., AT 11908 (REMARKS OF REP. SUMNERS).  SEE ALSO ID., AT
11900 (REMARKS OF REP. HANCOCK); ID., AT 11904 (REMARKS OF REP.
GWYNNE); ID., AT 11909 (REMARKS OF REP. VURSELL). 

/14/  THE REMARKS WITH RESPECT TO THAT BILL, H.R. 653, 78TH CONG.,
1ST SESS., WHICH PASSED ONLY THE HOUSE, ARE WHOLLY RELEVANT TO AN
UNDERSTANDING OF THE HOBBS ACT, SINCE THE OPERATIVE LANGUAGE OF THE
ORIGINAL BILL WAS SUBSTANTIALLY CARRIED FORWARD INTO THE ACT.  THE
CONGRESSIONAL DEBATES ON THE HOBBS ACT IN THE 79TH CONGRESS REPEATEDLY
REFERRED TO THE LEGISLATIVE HISTORY OF THE ORIGINAL BILL.  SEE 91
CONG.REC.  11842 (REMARKS OF REP. MICHENER); ID., AT 11899-11900
(REMARKS OF REP. HANCOCK); ID., AT 11900 (REMARKS OF REP. HOBBS). 
SURELY AN INTERPRETATION PLACED BY THE SPONSOR OF A BILL ON THE VERY
LANGUAGE SUBSEQUENTLY ENACTED BY CONGRESS CANNOT BE DISMISSED OUT OF
HAND, AS THE DISSENT WOULD HAVE IT, SIMPLY BECAUSE THE INTERPRETATION
WAS GIVEN TWO YEARS EARLIER. 

/15/  SEE ALSO 89 CONG.REC.  3202 (REMARKS OF REP. GWYNNE) (ACT DOES
NOT COVER "A CLASH BETWEEN STRIKERS AND SCABS DURING A STRIKE"). 

/16/  THE PROPONENTS OF THE HOBBS ACT DEFENDED THE ACT AS NO
ENCROACHMENT ON THE LEGITIMATE ACTIVITIES OF LABOR UNIONS ON THE GROUND
THAT THE STATUTE DID NO MORE THAN INCORPORATE NEW YORK'S CONVENTIONAL
DEFINITION OF EXTORTION-- "THE OBTAINING OF PROPERTY FROM ANOTHER . . .
WITH HIS CONSENT, INDUCED BY A WRONGFUL USE OF FORCE OR FEAR, OR UNDER
COLOR OF OFFICIAL RIGHT."  N.Y. PENAL LAW SEC. 850(1909).  SEE 91
CONG.REC.  11842 (REMARKS OF REP. WALTER); ID., AT 11843 (REMARKS OF
REP. MICHENER); ID., AT 11900 (REMARKS OF REP. HANCOCK); IBID. (REMARKS
OF REP. HOBBS); ID., AT 11906 (REMARKS OF REP. HANCOCK); IBID.
(REMARKS OF REP. HOBBS); ID., AT 11906 (REMARKS OF REP. UNITED STATES
V. PROVENZANO, 334 F.2D 678, 686. 

JUDICIAL CONSTRUCTION OF THE NEW YORK STATUTE REINFORCES THE
CONCLUSION THAT, HOWEVER MILITANT, UNION ACTIVITIES TO OBTAIN HIGHER
WAGES DO NOT CONSTITUTE EXTORTION.  FOR EXTORTION REQUIRES AN INTENT
"'TO OBTAIN THAT WHICH IN JUSTICE AND EQUITY THE PARTY IS NOT ENTITLED
TO RECEIVE.'"  PEOPLE V. CUDDIHY, 151 MISC. 318, 324, 271 N.Y.S. 450,
456, AFF'D, 243 APP.DIV.  694, 277 N.Y.S. 960; SEE PEOPLE V.
WEINSEIMER, 117 APP.DIV.  603, 102 N.Y.S. 579, 588, AFF'D, 190 N.Y.
537, 83 N.E. 1129.  AN ACCUSED WOULD NOT BE GUILTY OF EXTORTION FOR
ATTEMPTING TO ACHIEVE LEGITIMATE LABOR GOALS; HE COULD NOT BE CONVICTED
WITHOUT SUFFICIENT EVIDENCE THAT HE "WAS ACTUATED BY THE PURPOSE OF
OBTAINING A FINANCIAL BENEFIT FOR HIMSELF . . . AND WAS NOT ATTEMPTING
IN GOOD FAITH TO ADVANCE THE CAUSE OF UNIONISM . . . "  PEOPLE V.
ADELSTEIN, 9 APP.DIV.2D 907, 908, 195 N.Y.S.2D 27, 28, AFF'D SUB NOM.
PEOPLE V. SQUILLANTE, 8 N.Y.2D 998, 169 N.E.2D 425. 

HENCE, NEW YORK'S HIGHEST COURT HAS INTERPRETED ITS EXTORTION
STATUTE TO APPLY TO A CASE WHERE THE ACCUSED RECEIVED A PAYOFF TO BUY
AN END TO LABOR PICKETING.  PEOPLE V. DIOGUARDI, 8 N.Y.2D 260, 168
N.E.2D 683. 

"THE PICKETING HERE . . . MAY HAVE BEEN PERFECTLY LAWFUL IN ITS
INCEPTION (ASSUMING IT WAS PART OF A BONA FIDE ORGANIZATIONAL EFFORT)
AND MAY HAVE REMAINED SO-- DESPITE ITS POTENTIALLY RUINOUS EFFECT ON
THE EMPLOYERS' BUSINESSES-- SO LONG AS IT WAS EMPLOYED TO ACCOMPLISH
THE LEGITIMATE LABOR OBJECTIVE OF ORGANIZATION.  ITS ENTIRE CHARACTER
CHANGED FROM LEGALITY TO CRIMINALITY, HOWEVER, WHEN IT WAS USED AS A
PRESSURE DEVICE TO EXACT THE PAYMENT OF MONEY AS A CONDITION OF ITS
CESSATION . . . "  ID., AT 271, 168 N.E.2D, AT 690-691. 

IN SHORT, WHEN THE OBJECTIVES OF THE PICKETING CHANGED FROM
LEGITIMATE LABOR ENDS TO PERSONAL PAYOFFS, THEN THE ACTIONS BECAME
EXTORTIONATE. 

/17/  THE GOVERNMENT RELIES HEAVILY ON A STATEMENT BY CONGRESSMAN
MICHENER, IN A DIALOGUE WITH TWO OF HIS COLLEAGUES, TO THE EFFECT THAT
UNION MEMBERS WHO "BY ROBBERY OR EXPLOITATION COLLECT A DAY'S WAGE-- A
UNION WAGE-- THEY ARE NOT EXEMPTED FROM THE LAW SOLELY BECAUSE THEY ARE
ENGAGING IN A LEGITIMATE UNION ACTIVITY."  91 CONG.REC.  11843-11844. 
BUT CONGRESSMAN MICHENER WAS REFERRING TO THE ACTIVITY OF "ROBBERY OR
EXPLOITATION," AND HIS STATEMENT CONTINUED:  "I CANNOT UNDERSTAND HOW
ANY UNION MAN CAN CLAIM THAT THE CONDUCT DESCRIBED BY MR. JUSTICE STONE
IS A LEGITIMATE UNION ACTIVITY."  ID., AT 11844.  MR. CHIEF JUSTICE
STONE'S DISSENTING OPINION IN THE LOCAL 807 CASE DESCRIBED PAYOFFS FOR
THE SUPERFLUOUS AND UNWANTED WORK INVOLVED IN THAT CASE.  SEE 315
U.S.,AT 539. 

/18/  SEE 91 CONG.REC.  11914 (REMARKS OF REP. HOBBS); IBID.
(REMARKS OF REP. WALTER); ID., AT 11920 (REMARKS OF REP. GWYNNE). 

/19/  AS NOTED ABOVE, THE INDICTMENT IN UNITED STATES V. CALDES, 457
F.2D 74, WAS ORDERED TO BE DISMISSED BY THE NINTH CIRCUIT.  TWO SIMILAR
INDICTMENTS RETURNED IN THE SOUTHERN DISTRICT OF FLORIDA WERE DISMISSED
BY THE DISTRICT COURT WITHOUT OPINION IN JUNE 1970.  UNITED STATES V.
RUTCOFSKY, NO. 70-101-CR-JE, JUNE 24, 1970; UNITED STATES V. SCHIFFMAN,
NO. 70-102-CR-JE, JUNE 25, 1970.  AN ADDITIONAL INDICTMENT, BASED ON A
SIMILAR THEORY OF THE HOBBS ACT, WAS FILED IN THE EASTERN DISTRICT OF
NEW YORK ON JANUARY 12, 1972, AND IS CURRENTLY PENDING.  UNITED STATES
V. SPERO, NO. 72-CR-17. 

THE BRIEFS IN THE PRESENT CASE ADVISE US OF ONE OTHER HOBBS ACT
PROSECUTION THAT MAY HAVE BEEN BROUGHT UNDER THIS THEORY-- A 1962
INDICTMENT IN UNITED STATES V. WEBB, ND ALA., NO. 15080. 

/20/  REALIZING THE BREADTH OF ITS ARGUMENT, THE GOVERNMENT'S BRIEF
CONCEDES THAT THERE MIGHT BE AN EXCEPTION FOR "THE INCIDENTAL INJURY TO
PERSON OR PROPERTY THAT NOT INFREQUENTLY OCCURS AS A CONSEQUENCE OF THE
CHARGED ATMOSPHERE ATTENDING A PROLONGED LABOR DISPUTE . . . "  BUT
NOTHING, EITHER IN THE LANGUAGE OR THE HISTORY OF THE ACT, JUSTIFIES
ANY SUCH EXCEPTION. 

SIMILARLY, THERE IS NOTHING TO SUPPORT THE DISSENT'S EXCEPTION FOR
"MISCHIEVOUS" CONDUCT, POST, AT 418 N. 17, EVEN IF WE COULD BEGIN TO
DEFINE THE MEANING AND LIMITS OF SUCH A TERM. 

MR. JUSTICE BLACKMUN, CONCURRING. 

I JOIN THE COURT'S OPINION.  I READILY CONCEDE THAT MY VISCERAL
REACTION TO IMMATURELY CONCEIVED ACTS OF VIOLENCE OF THE KIND CHARGED
IN THIS INDICTMENT IS THAT SUCH ACTS DESERVE TO BE DIGNIFIED AS FEDERAL
CRIMES.  THAT REACTION ON MY PART, HOWEVER, IS LEGISLATIVE IN NATURE
RATHER THAN JUDICIAL.  IF CONGRESS WISHES ACTS OF THAT KIND TO BE
ENCOMPASSED BY A FEDERAL STATUTE, IT HAS THE CONSTITUTIONAL POWER IN
THE INTERSTATE CONTEXT TO EFFECT THAT RESULT.  THE APPELLEES SO
CONCEDE.  TR. OF ORAL ARG. 18-19.  BUT MR. JUSTICE STEWART HAS GATHERED
THE PERTINENT AND PERSUASIVE LEGISLATIVE HISTORY DEMONSTRATING THAT
CONGRESS DID NOT INTEND TO EXERCISE ITS POWER TO REACH THESE ACTS OF
VIOLENCE. 

THE GOVERNMENT'S POSTURE, WITH ITS CONCESSION THAT CERTAIN STRIKE
VIOLENCE (WHICH IT WOULD DOWNGRADE AS "INCIDENTAL" AND THE DISSENT AS
"LOW LEVEL," POST, AT 418 N.17), ALTHOUGH AIMED AT ACHIEVING A
LEGITIMATE END, IS NOT COVERED BY THE ACT, NECESSARILY MEANS THAT THE
LEGISLATION WOULD BE ENFORCED SELECTIVELY OR, AT THE LEAST, WOULD
EMBROIL ALL CONCERNED WITH DRAWING THE DISTINCTION BETWEEN MAJOR AND
MINOR VIOLENCE.  THAT, FOR ME, IS NEITHER AN APPEALING PROSPECT NOR
SOLID SUPPORT FOR THE POSITION TAKEN. 

THIS TYPE OF VIOLENCE, AS THE COURT POINTS OUT, IS SUBJECT TO STATE
CRIMINAL PROSECUTION.  THAT IS WHERE IT MUST REMAIN UNTIL THE CONGRESS
ACTS OTHERWISE IN A MANNER FAR MORE CLEAR THAN THE LANGUAGE OF THE
HOBBS ACT. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
POWELL, AND MR. JUSTICE REHNQUIST CONCUR, DISSENTING. 

THE COURT TODAY ACHIEVES BY INTERPRETATION WHAT THOSE WHO WERE
OPPOSED TO THE HOBBS ACT WERE UNABLE TO GET CONGRESS TO DO.  THE COURT
CONSIDERS PRIMARILY THE LEGISLATIVE HISTORY OF A PREDECESSOR BILL
CONSIDERED BY THE 78TH CONGRESS.  THE BILL BEFORE US WAS CONSIDERED AND
ENACTED BY THE 79TH CONGRESS; AND, AS I READ THE DEBATES, THE
OPPOSITION LOST IN THE 79TH CONGRESS WHAT THEY WIN TODAY.  ALL OF WHICH
MAKES PERTINENT MR. JUSTICE HOLMES' ADMONITION IN MISSOURI, K. & T.R.
CO. V. MAY, 194 U.S. 267, 270, THAT "IT MUST BE REMEMBERED THAT
LEGISLATURES ARE ULTIMATE GUARDIANS OF THE LIBERTIES AND WELFARE OF THE
PEOPLE IN QUITE AS GREAT A DEGREE AS THE COURTS." 

IN UNITED STATES V. LOCAL 807, 315 U.S. 521, WE HAD BEFORE US THE
ANTI-RACKETEERING ACT OF 1934, 48 STAT. 979, WHICH MADE IT A CRIME TO
USE VIOLENCE RESPECTING INTERSTATE TRADE OR COMMERCE TO OBTAIN THE
"PAYMENT OF MONEY OR OTHER VALUABLE CONSIDERATIONS,"  EXCLUDING "THE
PAYMENT OF WAGES BY A BONA-FIDE EMPLOYER TO A BONA-FIDE EMPLOYEE."  WE
HELD THAT THE EXCEPTION INCLUDED DEMANDS FOR UNWANTED OR SUPERFLUOUS
SERVICES AND COVERED THOSE WHO WANTED JOBS, NOT ONLY THOSE WHO
PRESENTLY HAD THEM. 

CONGRESS IN THE HOBBS ACT CHANGED THE LAW.  THE CRITICAL CHANGE WAS
THE EXCLUSION OF THE EMPLOYER-EMPLOYEE CLAUSE.  THE COURT SAID IN
UNITED STATES V. GREEN, 350 U.S. 415, 419:  "IN THE HOBBS ACT, 60 STAT.
420, CARRIED FORWARD AS 18 U.S.C. 1951, WHICH AMENDED THE ANTI
RACKETEERING ACT, THE EXCLUSION CLAUSE INVOLVED IN THE LOCAL 807
DECISION WAS DROPPED.  THE LEGISLATIVE HISTORY MAKES CLEAR THAT THE NEW
ACT WAS MEANT TO ELIMINATE ANY GROUNDS FOR FUTURE JUDICIAL CONCLUSIONS
THAT CONGRESS DID NOT INTEND TO COVER THE EMPLOYER-EMPLOYEE
RELATIONSHIP.  THE WORDS WERE DEFINED TO AVOID ANY MISUNDERSTANDING." 

IN GREEN, THE COURT HELD THAT IT WAS AN EXTORTION WITHIN THE MEANING
OF THE ACT TO USE FORCE TO OBTAIN PAYMENT OF WAGES FOR UNWANTED AND
SUPERFLUOUS SERVICES.  SERVICES.  ID., AT 417. 

HERE, THE SERVICES WERE NOT UNWANTED OR SUPERFLUOUS; THEY WERE
SERVICES BEING NEGOTIATED UNDER A COLLECTIVE-BARGAINING AGREEMENT. 

THE COURT RELIES MOSTLY ON THE LEGISLATIVE HISTORY OF A MEASURE
COVERING THE SAME TOPIC WHICH WAS PASSED BY THE PREVIOUS HOUSE BUT ON
WHICH THE SENATE DID NOT ACT.  TWO YEARS LATER, THE BILL IN ITS PRESENT
FORM WAS ENACTED.  IT WAS A DIFFERENTLY CONSTITUTED HOUSE THAT DEBATED
IT AND THE YEAR WAS 1945 RATHER THAN 1943.  SO THE MOST RELEVANT
LEGISLATIVE HISTORY, IN MY VIEW, CONCERNS THE 79TH CONGRESS, NOT THE
78TH. 

THE FEAR WAS EXPRESSED IN THE HOUSE THAT THE ELIMINATION OF THE
EXCEPTION CLAUSE WOULD OPEN UP THE PROSPECT OF LABOR'S BEING
PROSECUTED.  /1/  AS A CONSEQUENCE, CONGRESSMAN CELLER SOUGHT TO AMEND
THE MEASURE SO AS TO EXEMPT THE USE OF VIOLENCE TO EXACT "WAGES PAID BY
A BONA FIDE EMPLOYER TO A BONA FIDE EMPLOYEE."  /2/  HIS PRECISE
AMENDMENT IN THAT REGARD WOULD DEFINE "PROPERTY" IN THE ACT AS NOT
INCLUDING "WAGES PAID BY A BONA FIDE EMPLOYER TO A BONA FIDE
EMPLOYEE."  /3/  THOSE WHO OBJECTED SAID THAT IT WOULD SUBSTANTIALLY
RESTORE THE 1934 ACT.  /4/ 

CONGRESSMAN BIEMILLER, IN SPEAKING FOR THE CELLER AMENDMENT SAID: 

"WE FEAR, FOR EXAMPLE, UNDER THE BILL AS IT NOW STANDS, THAT A
SIMPLE, UNFORTUNATE ALTERCATION ON A PICKET LINE-- AND WE ALL KNOW THAT
HUMAN BEINGS ARE FRAIL AND WHEN TEMPERS ARE HOT SOME TROUBLE MAY
DEVELOP-- UNDER SUCH A SITUATION YOU MAY SEND A MAN TO JAIL FOR 20
YEARS OR FINE HIM $10,000."  /5/ 

THE CELLER AMENDMENT WAS REJECTED.  /6/ 

AS I READ THE CONGRESSIONAL RECORD, CONGRESSMAN BALDWIN SPOKE FOR
THE CONSENSUS WHEN HE SAID: 

     "THIS BILL WOULD NOT HAVE BEEN PRESENTED TO THE HOUSE IF

  ORGANIZED LABOR HAD RECOGNIZED LAW AND ORDER IN STRIKING AND IN

ESTABLISHING THEIR RIGHTS, AS THEY HAVE A RIGHT TO DO.  EVERYONE

  CAN REMEMBER THE TAXICAB STRIKE IN THE CITY OF BALTIMORE, WHICH

  DOES NOT PERTAIN TO THIS BILL, WHERE CABS WERE OVERTHROWN, BRICKS

  THROWN THROUGH THE WINDOWS ENDANGERING THE LIVES OF PEOPLE,

  INNOCENT VICTIMS.  THOSE WERE THE TACTICS OF ORGANIZED LABOR

  WHICH YOU PEOPLE SUPPORT OUTRIGHT AND WHICH ORGANIZED LABOR

  SANCTIONED.  THE LEADERS WERE LOCKED UP AND PUT IN JAIL FOR

  PARTICIPATING IN THOSE ACTIVITIES.  YET YOU STAND HERE ON THE

  FLOOR OF THIS HOUSE AND SAY THEY DID NOT DO IT OR THEY DID NOT

  KNOW ANYTHING ABOUT IT. 

      "MR. CHAIRMAN, LABOR HAS A RIGHT TO STRIKE, BUT WHEN LABOR

  PERPETRATES THAT SORT OF THING, THEY ARE GOING FAR BEYOND THE

  BOUNDS OF REASON.  CERTAINLY, I DO NOT TAKE THE POSITION THAT

  LABOR HAS NOT THE RIGHT TO ORGANIZE OR TO STRIKE, BUT WHEN THEY

  DO SO THEY SHOULD ABIDE BY THE LAWS OF THE LAND AND THE LAWS OF

  DECENCY.  IF THEY HAD DONE THAT, WE WOULD NOT HAVE THIS

  LEGISLATION BEFORE THE HOUSE TODAY."  /7/ 

CONGRESSMAN WHITTINGTON VOICED THE SAME SENTIMENTS: 

"THE PENDING BILL WILL PROVIDE FOR PUNISHING RACKETEERS WHO ROB OR
EXTORT.  THERE IS NO JUSTIFICATION FOR LABOR UNIONS OPPOSING THE BILL
AS IT CONSTITUTES NO INVASION OF THE LEGITIMATE RIGHTS OF LABOR. 
ROBBERY AND EXTORTION BY MEMBERS OF LABOR UNIONS MUST BE PUNISHED. 
LABOR UNIONS OWE THAT MUCH TO THE PUBLIC.  IN DEMANDING THE PROTECTION
OF LAWS, LABOR UNIONS SHOULD URGE THAT THOSE ENGAGED IN LEGITIMATE
INTERSTATE COMMERCE BE PROTECTED FROM ROBBERY AND EXTORTION."  /8/ 

CONGRESSMAN CELLER OFFERED ANOTHER AMENDMENT WHICH WOULD GIVE A
DEFENSE TO A CHARGE UNDER THE HOBBS ACT THAT THE EMPLOYEE "DID NOT
VIOLATE THE PROVISIONS OF THE NORRIS-LAGUARDIA ACT, THE CLAYTON ACT, OR
THE RAILWAY LABOR ACT, OR THE NATIONAL LABOR RELATIONS ACT."  /9/  BUT
THAT AMENDMENT WAS ALSO VOTED DOWN; /10/  THE ONLY PROVISION OF THE
HOBBS ACT WHICH TOUCHED ON THAT PROBLEM WAS 18 U.S.C. 1951(C), WHICH
STATED THAT THIS SECTION "SHALL NOT BE CONSTRUED TO REPEAL, MODIFY OR
AFFECT" THOSE LAWS.  REFERENCES WERE MADE IN THE HOUSE DEBATES TO THE
TRUCKING PROBLEM IN NEW YORK, WHERE FARMERS BRINGING THEIR PRODUCE TO
MARKET IN TRUCKS WERE HELD UP AND MONEY WAS EXTORTED "FROM THE DRIVERS
IN ORDER THAT THE SHIPMENTS MIGHT ENTER THE HOLLAND TUNNEL AND BE
DELIVERED TO THEIR RESPECTIVE DESTINATIONS IN NEW YORK."  /11/ 

CONGRESSMAN LAFOLLETTE OFFERED AN AMENDMENT WHICH WOULD KEEP THE
1934 ACT INTACT BUT WOULD BAR THE USE OF VIOLENCE BY A PERSON NOT A
BONA FIDE EMPLOYEE TO OBTAIN PROPERTY FROM A BONA FIDE EMPLOYER.  /12/
THAT, TOO, WAS DEFEATED.  /13/ 

IN THE PRESENT CASE, VIOLENCE WAS USED DURING THE BARGAINING-- FIVE
ACTS OF VIOLENCE INVOLVING THE SHOOTING AND SABOTAGE OF THE EMPLOYER'S
TRANSFORMERS AND THE BLOWING UP OF A COMPANY TRANSFORMER SUBSTATION. 
THE VIOLENCE WAS USED TO OBTAIN HIGHER WAGES AND OTHER BENEFITS FOR
UNION MEMBERS.  THE ACTS LITERALLY FIT THE DEFINITION OF EXTORTION USED
IN THE HOBBS ACT, 18 U.S.C. 1951.  THE TERM "EXTORTION" MEANS THE USE
OF VIOLENCE TO OBTAIN "PROPERTY" FROM ANOTHER.  SEC. 1951(B)(2).  THE
CRIME IS THE USE OF "EXTORTION" IN FURTHERANCE OF A PLAN TO DO ANYTHING
IN VIOLATION OF THE SECTION.  SEC. 1951(A).  THE PRIOR EXCEPTION
COVERING THOSE WHO SEEK "THE PAYMENT OF WAGES BY A BONA-FIDE EMPLOYER
TO A BONA-FIDE EMPLOYEE" WAS TAKEN OUT OF THE ACT BY CONGRESS.  HENCE,
THE USE OF VIOLENCE TO OBTAIN HIGHER WAGES IS PLAINLY A METHOD OF
OBTAINING "PROPERTY FROM ANOTHER" WITHIN THE MEANING OF SEC.
1951(B)(2). 

SEEKING HIGHER WAGES IS CERTAINLY NOT UNLAWFUL.  BUT USING VIOLENCE
TO OBTAIN THEM SEEMS PLAINLY WITHIN THE SCOPE OF "EXTORTION" AS USED IN
THE ACT, JUST AS IS THE USE OF VIOLENCE TO EXACT PAYMENT FOR NO WORK OR
THE USE OF VIOLENCE TO GET A SHAM SUBSTITUTION FOR NO WORK.  THE REGIME
OF VIOLENCE, WHATEVER ITS PRECISE OBJECTIVE, IS A COMMON DEVICE OF
EXTORTION AND IS CONDEMNED BY THE ACT. 

CONGRESSMAN LEMKE SAID IN THE HOUSE DEBATES ON THE HOBBS ACT, WHICH
HE OPPOSED, "THE MINORITY IS GENERALLY RIGHT."  /14/ 

WHATEVER MAY BE THOUGHT OF THE POLICY WHICH THE COURT TODAY
EMBROIDERS INTO THE ACT, IT WAS THE MINORITY VIEW IN THE HOUSE AND
CLEARLY DID NOT REPRESENT THE CONSENSUS OF THE HOUSE.  NO LIGHT IS
THROWN ON THE MATTER BY THE SENATE, FOR IT SUMMARILY APPROVED THE HOUSE
VERSION OF THE BILL.  /15/ 

IT IS EASY IN THESE INSULATED CHAMBERS TO PUT AN ATTRACTIVE GLOSS ON
AN ACT OF CONGRESS IF FIVE VOTES CAN BE OBTAINED.  AT TIMES, THE
LEGISLATIVE HISTORY OF A MEASURE IS SO CLOUDED OR OBSCURE THAT WE MUST
PERFORCE GIVE SOME MEANING TO VAGUE WORDS.  /16/  BUT WHERE, AS HERE,
THE CONSENSUS OF THE HOUSE IS SO CLEAR, WE SHOULD CARRY OUT ITS PURPOSE
NO MATTER HOW DISTASTEFUL OR UNDESIRABLE THAT POLICY MAY BE TO US, /17/
UNLESS OF COURSE THE ACT OVERSTEPS CONSTITUTIONAL BOUNDARIES.  BUT
NONE HAS BEEN SO HARDY AS EVEN TO SUGGEST THAT. 

WHILE WE SAID IN KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 522, THAT
IT IS "RETROSPECTIVE EXPANSION OF MEANING WHICH PROPERLY DESERVES THE
STIGMA OF JUDICIAL LEGISLATION," THE SAME IS TRUE OF RETROSPECTIVE
CONTRACTION OF MEANING. 

I WOULD REVERSE. 

/1/  91 CONG.REC.  11914 (REMARKS OF REP. MARCANTONIO). 

/2/ ID., AT 11913. 

/3/  IBID. 

/4/  ID., AT 11914; 11914-11915; 11918. 

/5/  ID., AT 11916. 

/6/  ID., AT 11917. 

/7/  ID., AT 11918. 

/8/  ID., AT 11913. 

/9/  ID., AT 11919. 

/10/  IBID. 

/11/  ID., AT 11917. 

/12/  ID., AT 11919.  THE PROPOSED AMENDMENT READ AS FOLLOWS: 

"(A) THE TERM 'THE PAYMENT OF WAGES BY A BONA FIDE EMPLOYER TO A BONA
FIDE EMPLOYEE' SHALL NOT BE CONSTRUED SO AS TO INCLUDE THE PAYMENT OF
MONEY OR THE TRANSFER OF A THING OF VALUE BY A PERSON TO ANOTHER WHEN
THE LATTER SHALL USE OR ATTEMPT TO USE OR THREATEN TO USE FORCE OR
VIOLENCE AGAINST THE BODY OR TO THE PHYSICAL PROPERTY (AS DISTINGUISHED
FROM INTANGIBLE PROPERTY) OF THE FORMER OR AGAINST THE BODY OF ANYONE
HAVING THE POSSESSION, CUSTODY, OR CONTROL OF THE PHYSICAL PROPERTY OF
THE FORMER, IN ATTEMPTING TO OBTAIN OR OR OBTAINING SUCH PAYMENT OR
TRANSFER. 

"(B) THE TERM 'THE RIGHTS OF A BONA FIDE LABOR ORGANIZATION IN
LAWFULLY CARRYING OUT THE LEGITIMATE OBJECTS THEREOF, AS SUCH RIGHTS
ARE EXPRESSED IN EXISTING STATUTES OF THE UNITED STATES' SHALL NOT BE
CONSTRUED SO AS TO IGNORE, VOID, SET ASIDE, OR NULLIFY THE DEFINITIONS
SET OUT OR THE WORDS USED IN OR THE PLAIN MEANING OF SUBSECTION (A)
HEREOF." 

/13/  ID., AT 11922. 

/14/  IBID. 

/15/  92 CONG.REC.  7308. 

/16/  SEE, E.G., ADDISON V. HOLLY HILL CO., 322 U.S. 607, 615-616,
FOR THE USE BY CONGRESS OF THE RATHER OPAQUE PHRASE "AREA OF
PRODUCTION." 

/17/  THE FEAR WAS EXPRESSED IN THE HOUSE DEBATES BY OPPONENTS OF
THE MEASURE THAT A FISTFIGHT ON A PICKET LINE DURING A STRIKE COULD
BRING DOWN ON THE OFFENDER A $10,000 FINE AND 20 YEARS IN JAIL OR
BOTH.  SEE 91 CONG.REC.  11916; SUPRA, AT 414-415.  AND THE GOVERNMENT
ACTUALLY ARGUED IN ONE CASE, UNITED STATES V. CALDES, 457 F.2D 74, 78,
THAT A UNION AND ITS MEMBERS WERE GUILTY OF EXTORTION IF THEY USED THE
COERCION OF A STRIKE TO OBTAIN ECONOMIC BENEFITS FROM THE EMPLOYER. 
THAT, HOWEVER, IS NONSENSE, AS THE COURT IN CALDES RULED, ID., AT 79,
FOR THE HOBBS ACT SPECIFICALLY DOES NOT TOUCH COLLECTIVE BARGAINING OF
WHICH THE STRIKE IS A COMPONENT PART.  18 U.S.C. 1951(C).  MOREOVER,
THE COURT IN CALDES HELD THAT "MISCHIEVOUS" CONDUCT DURING A STRIKE AND
ACTIONS WHICH ARE "THE BY-PRODUCT OF FRUSTRATION ENGENDERED BY A
PROLONGED, BONA FIDE COLLECTIVE BARGAINING NEGOTIATION," ID., AT 78,
ARE OFTEN ONLY LOW-LEVEL ACTS OF VIOLENCE THAT MAY BE UNFAIR LABOR
PRACTICES OR, AT BEST, SUBJECT TO STATE, NOT FEDERAL, PROSECUTION. 
THAT IS MY VIEW. 

WILLIAM BRADFORD REYNOLDS ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL PETERSEN, AND JEROME M. FEIT. 

BERNARD DUNAU ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEFS WERE LOUIS SHERMAN, THOMAS X. DUNN, ELIHU I. LEIFER, ALEX W.
WALL, AND SAM J. D'AMICO.  /0/
..END :



MICHIGAN V. OHIO, 410 U.S. 420 


       MICHIGAN V. OHIO

        ON EXCEPTIONS TO SPECIAL MASTER'S REPORT

        NO. 30, ORIG.  ARGUED DECEMBER 11, 1972-- DECIDED AND
DECREE

           ENTERED FEBRUARY 22, 1973 


THE SPECIAL MASTER'S RECOMMENDATIONS FIXING THAT PORTION OF THE OHIO
MICHIGAN BOUNDARY RUNNING THROUGH LAKE ERIE ADOPTED AND DECREE ISSUED. 

PER CURIAM AND DECREE. 

UPON CONSIDERATION OF THE REPORT FILED NOV. 9, 1971, BY SENIOR JUDGE
ALBERT B. MARIS, SPECIAL MASTER, EXCEPTIONS FILED THERETO, IT IS NOW
ORDERED, ADJUDGED, AND DECREED AS FOLLOWS: 

1.  THE EXCEPTIONS FILED BY THE STATE OF MICHIGAN TO THE REPORT AND
RECOMMENDATIONS OF THE SPECIAL MASTER ARE OVERRULED. 

2.  THE BOUNDARY LINE BETWEEN THE STATES OF OHIO AND MICHIGAN IN
LAKE ERIE FOLLOWS A LINE DRAWN FROM THE POINT IN MAUMEE BAY WHERE THE
NORTH CAPE OF THAT BAY WAS LOCATED IN 1836 ON A COURSE HAVING A BEARING
NORTH 45 DEGREES EAST MEASURED FROM A TRUE MERIDIAN, PASSING OVER THE
CENTER OF THE EXISTING CIRCULAR CONCRETE SEAWALL ON TURTLE ISLAND AND
CONTINUING ON THE SAME COURSE THROUGH THE LAKE TO THE POINT WHERE IT
INTERSECTS THE BOUNDARY LINE BETWEEN THE UNITED STATES AND CANADA. 

3.  IN 1836 THE NORTH CAPE OF MAUMEE BAY WAS LOCATED AT THE POINT IN
THAT BAY WHERE A LINE DRAWN NORTH 87 DEGREES 49' 44" EAST FROM POST 71
ON THE LAND BOUNDARY LINE BETWEEN THE STATES OF OHIO AND MICHIGAN
INTERSECTS A LINE DRAWN SOUTH 45 DEGREES WEST FROM THE CENTER OF THE
EXISTING CIRCULAR CONCRETE SEAWALL ON TURTLE ISLAND, BOTH BEARINGS
BEING MEASURED FROM A TRUE MERIDIAN. 

4.  THE COSTS OF THIS SUIT, INCLUDING THE EXPENSES OF THE SPECIAL
MASTER, SHALL BE BORNE BY THE STATE OF MICHIGAN. 

CHARLES F. KEELEY, ASSISTANT ATTORNEY GENERAL OF MICHIGAN, ARGUED
THE CAUSE FOR PLAINTIFF ON EXCEPTIONS TO THE REPORT OF THE SPECIAL
MASTER.  WITH HIM ON THE BRIEF WERE FRANK J. KELLEY, ATTORNEY GENERAL,
ROBERT A. DERENGOSKI, SOLICITOR GENERAL, AND JEROME MASLOWSKI,
ASSISTANT ATTORNEY GENERAL. 

CHARLES S. RAWLINGS, ASSISTANT ATTORNEY GENERAL OF OHIO, ARGUED THE
CAUSE FOR DEFENDANT IN ANSWER TO EXCEPTIONS TO THE REPORT OF THE
SPECIAL MASTER.  WITH HIM ON THE BRIEF WAS WILLIAM J. BROWN, ATTORNEY
GENERAL. 
..END :






















MORRIS V. WEINBERGER, 410 U.S. 422 


       MORRIS V. WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND

           WELFARE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 71-6698.  ARGUED JANUARY 17, 1973-- DECIDED FEBRUARY
22,

           1973 


455 F.2D 775, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 

PER CURIAM. 

TWENTY DAYS AFTER THIS COURT GRANTED A WRIT OF CERTIORARI, 409 U.S.
841, CONGRESS AMENDED THE RELEVANT STATUTORY PROVISIONS, SEC. 202(D)(8)
OF THE SOCIAL SECURITY ACT, 42 U.S.C. 402(D)(8).  SEE SEC. 111(A),
SOCIAL SECURITY AMENDMENTS OF 1972 (OCT. 30, 1972), PUB. L. 92-603, 86
STAT. 1329.  THE WRIT OF CERTIORARI HERETOFORE GRANTED IS DISMISSED AS
IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IN THIS CASE, PETITIONER WAS DENIED SOCIAL SECURITY BENEFITS FOR HIS
DEPENDENT ADOPTED DAUGHTER BECAUSE HER COURT-APPROVED ADOPTION WAS NOT
SUPERVISED BY A CHILD-PLACEMENT AGENCY.  AS NOTED BY THE COURT, THE
BEEN REPEALED.  /1/  WHAT THE COURT DOES NOT DEAL WITH, HOWEVER, IS THE
PATCHWORK NATURE OF THE RELIEF THAT CONGRESS HAS PROVIDED. 

CIRCUMSTANCES TO WHICH SEC. 111(A) /3/  APPLIES.  AS I READ SEC.
111(B), SHOULD PETITIONER QUALIFY FOR INCREASED BENEFITS UNDER SEC.
111(A)'S NEW STANDARDS, HE COULD NOW SECURE RETROACTIVE APPLICATION OF
THE REVISED ACT TO COVER THE ENTIRE PERIOD AT ISSUE IN THIS CASE.  IT
IS TRUE THAT SEC. 111(A) NO LONGER REQUIRES THAT COURT-AUTHORIZED
ADOPTIONS BE SUPERVISED BY A CHILD-PLACEMENT AGENCY.  PETITIONER'S LOT
IS NOT, HOWEVER, BETTERED SINCE SEC. 111(A) NOW IMPOSES A NEW
REQUIREMENT WHICH PETITIONER CANNOT MEET:  THAT BENEFITS MAY BE PAID TO
AN ADOPTED CHILD ONLY IF THE CHILD WAS LIVING WITH THE BENEFICIARY "FOR
THE YEAR IMMEDIATELY BEFORE THE MONTH IN WHICH BEGAN THE PERIOD OF
(COMPENSABLE) DISABILITY . . . "  SEC. 111(A)(8)(D)(II)(II). 
PETITIONER BEGAN RECEIVING DISABILITY INSURANCE BENEFITS IN JULY 1957. 
HIS ADOPTED DAUGHTER WAS NOT BORN UNTIL 1965, HOWEVER, AND PETITIONER
WILL ACCORDINGLY NOT BENEFIT UNDER THE TERMS OF SEC. 111(A). 

APPLICATIONS FILED BEFORE OCTOBER 1972 FOR BENEFITS ACCRUING BEFORE
OCTOBER 30, 1972.  SUCH AN APPLICATION IS BEFORE US IN THIS CASE. 
PETITIONER IS THEREFORE ENTITLED TO BENEFITS UNDER THE FORMER STATUTE,
IF THERE IS MERIT TO HIS CLAIM THAT THE OLD SEC. 402(D)(8) DISTINCTIONS
AMONG TYPES OF ADOPTION SUPERVISION ARE CONSTITUTIONALLY INFIRM. 

BECAUSE THE NEW ACT DOES NOT PROVIDE COVERAGE FOR PETITIONER'S CHILD
BUT THE OLD ACT REMAINS APPLICABLE TO THE CLAIM BEFORE US, I WOULD
REACH THE MERITS. 

/1/  SOCIAL SECURITY AMENDMENT OF 1972, PUB. L. 92-603, 86 STAT.
1329, SEC. 111. 

/2/  "THE AMENDMENT MADE BY SUBSECTION (A) SHALL APPLY WITH RESPECT
TO MONTHLY BENEFITS PAYABLE UNDER TITLE II OF THE SOCIAL SECURITY ACT
FOR MONTHS AFTER DECEMBER 1967 ON THE BASIS OF AN APPLICATION FILED IN
OR AFTER THE MONTH IN WHICH THIS ACT IS ENACTED; EXCEPT THAT SUCH
AMENDMENTS SHALL NOT APPLY WITH RESPECT TO BENEFITS FOR ANY MONTH
BEFORE THE MONTH IN WHICH THIS ACT IS ENACTED UNLESS SUCH APPLICATION
IS FILED BEFORE THE CLOSE OF THE SIXTH MONTH AFTER THE MONTH IN WHICH
THIS ACT IS ENACTED." 

/3/  THE RELEVANT PORTION OF THAT SECTION READS: 

"(8) IN CASE OF-- 

"(A) . . . 

"(B) AN INDIVIDUAL ENTITLED TO DISABILITY INSURANCE BENEFITS . . . A
CHILD OF SUCH INDIVIDUAL ADOPTED AFTER SUCH INDIVIDUAL BECAME ENTITLED
TO SUCH . . . BENEFITS SHALL BE DEEMED NOT TO MEET THE REQUIREMENTS OF
CLAUSE (I) . . . OF PARAGRAPH (1)(C) UNLESS SUCH CHILD-- 

"(C) . . . 

"(D) (I) WAS LEGALLY ADOPTED BY SUCH INDIVIDUAL IN AN ADOPTION
DECREED BY A COURT OF COMPETENT JURISDICTION WITHIN THE UNITED STATES, 

"(II) WAS LIVING WITH SUCH INDIVIDUAL IN THE UNITED STATES AND
RECEIVING AT LEAST ONE-HALF OF HIS SUPPORT FROM SUCH INDIVIDUAL . . .
FOR THE YEAR IMMEDIATELY BEFORE . . . THE MONTH IN WHICH SUCH
INDIVIDUAL BECAME ENTITLED TO DISABILITY INSURANCE BENEFITS, AND 

"(III) HAD NOT ATTAINED THE AGE OF 18 BEFORE HE BEGAN LIVING WITH
SUCH INDIVIDUAL." 

E. R. MCCLELLAND ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

WALTER H. FLEISCHER ARGUED THE CAUSE FOR RESPONDENT.  ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WOOD, MARK
L. EVANS, KATHRYN H. BALDWIN, AND MICHAEL KIMMEL. 
..END :













MCGINNIS V. ROYSTER, 410 U.S. 263 


       MCGINNIS, COMMISSIONER OF CORRECTION, ET AL. V. ROYSTER ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK

        NO. 71-718.  ARGUED DECEMBER 11, 1972-- DECIDED FEBRUARY
21,

           1973 


APPELLEES CHALLENGE AS VIOLATIVE OF EQUAL PROTECTION SEC. 230(3) OF
THE NEW YORK CORRECTION LAW, WHICH DENIES CERTAIN STATE PRISONERS GOOD
TIME CREDIT TOWARD PAROLE ELIGIBILITY FOR THE PERIOD OF THEIR
PRESENTENCE COUNTY JAIL INCARCERATION, WHEREAS THOSE RELEASED ON BAIL
PRIOR TO SENTENCE RECEIVED UNDER THE STATUTE FULL ALLOWANCE OF GOOD
TIME CREDIT FOR THE ENTIRE PERIOD OF THEIR PRISON CONFINEMENT.  A THREE
JUDGE DISTRICT COURT, VIEWING THE GOOD-TIME STATUTORY SCHEME AS
PRIMARILY AIMED AT FOSTERING PRISON DISCIPLINE, UPHELD APPELLEES' CLAIM
ON THE GROUND THAT THERE IS NO RATIONAL BASIS FOR THE STATUTORY
DISTINCTION BETWEEN JAIL AND NON-JAIL DEFENDANTS IN AWARDING GOOD-TIME
CREDIT.  HELD:  UNDER THE NEW YORK SCHEME GOOD-TIME CREDIT TAKES INTO
ACCOUNT A PRISONER'S PERFORMANCE UNDER THE PROGRAM OF REHABILITATION
THAT IS FOSTERED UNDER THE STATE PRISON SYSTEM, BUT NOT IN THE COUNTY
JAILS, WHICH SERVE PRIMARILY AS DETENTION CENTERS.  SINCE THE JAILS
HAVE NO SIGNIFICANT REHABILITATION PROGRAM, A RATIONAL BASIS EXISTS FOR
DECLINING TO GIVE GOOD-TIME CREDIT FOR THE PRETRIAL JAIL-DETENTION
PERIOD; AND THE STATUTE WILL BE SUSTAINED EVEN IF FOSTERING
REHABILITATION WAS NOT NECESSARILY THE PRIMARY LEGISLATIVE OBJECTIVE,
CF. SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301, 331; DANBRIDGE V.
WILLIAMS, 397 332 F.SUPP.  973, REVERSED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED,
POST, P. 277. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US CONCERNS THE CONSTITUTIONALITY OF SEC. 230(3)
OF THE NEW YORK CORRECTION LAW, WHICH DENIED APPELLEE STATE PRISONERS
"GOOD TIME" CREDIT FOR THEIR PRESENTENCE INCARCERATION IN COUNTY
JAILS.  /1/  APPELLEES CLAIM THAT DISALLOWING SUCH CREDIT TO THEM WHILE
PERMITTING CREDIT UP TO THE FULL PERIOD OF ULTIMATE INCARCERATION FOR
STATE PRISONERS WHO WERE RELEASED ON BAIL PRIOR TO SENTENCING DEPRIVED
THEM OF EQUAL PROTECTION OF THE LAWS.  THE THREE-JUDGE DISTRICT COURT,
ONE JUDGE DISSENTING, UPHELD THEIR CLAIM, 332 F.SUPP.  973 (1971).  THE
COMMISSIONER OF CORRECTION AND OTHER OFFICIALS (HEREAFTER COMMISSIONER)
HAVE APPEALED AND WE NOTED PROBABLE JURISDICTION, 405 U.S. 986 (1972). 
/2/ 

THE CHALLENGED NEW YORK SENTENCING SYSTEM IS A COMPLEX ONE, AND SOME
BASIC DEFINITIONS ARE REQUIRED AT THE OUTSET.  JAIL TIME DENOTES THAT
TIME AN INDIVIDUAL PASSES IN A COUNTY JAIL PRIOR TO TRIAL AND
SENTENCING.  GOOD TIME IS AWARDED FOR GOOD BEHAVIOR AND EFFICIENT
PERFORMANCE OF DUTIES DURING INCARCERATION.  BOTH GOOD TIME AND JAIL
TIME FIGURE VARIOUSLY IN THE CALCULATIONS OF A SERIES OF RELEASE DATES
THAT EACH PRISONER RECEIVES UPON HIS ARRIVAL AT STATE PRISON.  EACH
INMATE HAS BOTH A MINIMUM PAROLE DATE, WHICH IS THE EARLIEST DATE ON
WHICH HE MAY BE PAROLED BY THE PAROLE BOARD.  /3/  THE MINIMUM PAROLE
DATE IS CALCULATED UNDER SECS. 230(2) AND 230(3) BY SUBTRACTING THE
GREATEST AMOUNT OF GOOD TIME THAT CAN BE EARNED (10 DAYS PER MONTH)
FROM THE MINIMUM SENTENCE OF AN INDETERMINATE TERM.  /4/  THE STATUTORY
RELEASE DATE IS CALCULATED UNDER SEC. 230(4) BY SUBTRACTING THE
GREATEST AMOUNT OF GOOD TIME THAT CAN BE EARNED (5 DAYS PER MONTH) FROM
THE MAXIMUM SENTENCE OF AN INDETERMINATE TERM. 

ALTHOUGH APPELLEES DID RECEIVE JAIL-TIME CREDIT FOR THE PERIOD OF
THEIR PRESENTENCE INCARCERATION IN COUNTY JAIL, SEC. 230(3) EXPLICITLY
FORBIDS, IN CALCULATING THE MINIMUM PAROLE DATE, ANY GOOD-TIME CREDIT
FOR THE PERIOD OF COUNTY JAIL DETENTION SERVED PRIOR TO TRANSFER TO
STATE PRISON.  /5/  APPELLEE ROYSTER, BEING UNABLE TO POST BAIL, SERVED
404 DAYS' JAIL TIME IN THE NASSAU COUNTY JAIL PRIOR TO HIS TRANSFER TO
STATE PRISON TO SERVE CONSECUTIVE 5-TO-10-YEAR TERMS FOR BURGLARY IN
THE THIRD DEGREE AND GRAND LARCENY IN THE FIRST DEGREE.  APPELLEE
RUTHERFORD ALSO FAILED TO MAKE BAIL AND SPENT 242 DAYS' JAIL TIME IN
NASSAU COUNTY JAIL PRIOR TO HIS TRIAL, SENTENCING, AND TRANSFER TO
STATE PRISON FOR CONCURRENT TERMS OF 10 TO 20 YEARS FOR ROBBERY IN THE
FIRST DEGREE AND TWO AND ONE-HALF TO FIVE YEARS FOR GRAND LARCENY IN
THE SECOND DEGREE.  IT IS UNDISPUTED THAT, WERE APPELLEES ROYSTER AND
RUTHERFORD TO RECEIVE GOOD-TIME CREDIT FOR THEIR PRESENTENCE
CONFINEMENT IN COUNTY JAIL, THEY WOULD BE ENTITLED TO APPEAR BEFORE THE
PAROLE BOARD APPROXIMATELY FOUR AND THREE MONTHS EARLIER, RESPECTIVELY,
THAN UNDER THE COMPUTATION REQUIRED BY SEC. 230(3). 

TWO ADDITIONAL POINTS MERIT MENTION.  WHILE NEW YORK DOES DENY GOOD
TIME CREDIT FOR JAIL TIME IN COMPUTING THE MINIMUM PAROLE DATE UNDER
SECS. 230(2) AND (3), IT ALLOWS SUCH CREDIT IN CALCULATING THE
STATUTORY RELEASE DATE UNDER SEC. 230(4).  /6/  FINALLY, SEC. 230(3)
ITSELF PROVIDES THAT GOOD-TIME CREDIT FOR JAIL TIME SHALL BE AWARDED TO
THOSE PRISONERS CONFINED AFTER SENTENCE IN COUNTY PENITENTIARIES, AS
OPPOSED TO THOSE CONVICTED OF FELONIES, SUCH AS APPELLEES, WHO ARE
TRANSFERRED AFTER SENTENCE TO STATE PRISON.  /7/

        I 

NOTE, DRAW A DISTINCTION "BETWEEN THE TREATMENT OF STATE PRISONERS
INCARCERATED PRIOR TO SENTENCING AND THOSE WHO WERE NOT SIMILARLY
INCARCERATED."  /8/  APPELLEES CONTEND THAT "DENYING STATE PRISONERS
GOOD-TIME CREDIT FOR THE PERIOD OF THEIR PRE-SENTENCE INCARCERATION IN
A COUNTY JAIL WHEREAS THOSE FORTUNATE CREDIT FOR THE ENTIRE PERIOD
WHICH THEY ULTIMATELY SPEND IN CUSTODY"  /9/  VIOLATES THE EQUAL
PROTECTION OF THE LAWS AND DISCRIMINATES AGAINST THOSE STATE PRISONERS
UNABLE TO AFFORD OR OTHERWISE QUALIFY FOR BAIL PRIOR TO TRIAL. 

WE FIRST NOTE THAT ANY RELATIVE DISADVANTAGE THE DISTINCTION WORKS
ON APPELLEES IS LESSENED BY THE FACT THAT NEW YORK ON SEPTEMBER 1,
1967, REPLACED SEC. 230 OF ITS CORRECTION LAW WITH SECS. 803 AND 805,
WHICH APPLY TO ALL CONVICTIONS FOR OFFENSES AFTER THAT DATE.  /10/
UNDER THE NEW SCHEME, "GOOD TIME EARNED ON THE MINIMUM SENTENCE IS
ABOLISHED.  A PRISONER MEETS WITH THE PAROLE BOARD AT THE EXPIRATION OF
HIS MINIMUM TERM, REGARDLESS OF HOW MUCH GOOD TIME HE HAS EARNED OR OF
HOW MUCH TIME HE SPENT IN JAIL PRIOR TO ARRIVING AT STATE PRISON." 
/11/  NEW YORK HAS GIVEN APPELLEES-- AND ALL THOSE SENTENCED FOR
OFFENSES COMMITTED PRIOR TO SEPTEMBER 1, 1967-- A CHANCE TO ELECT THE
NEW PROCEDURE, BUT APPELLEES DECLINED TO DO SO.  APPELLEES THUS ENJOY
AT LEAST AS FAVORABLE A POSITION AS ALL STATE PRISONERS CONVICTED FOR
OFFENSES COMMITTED SUBSEQUENT TO SEPTEMBER 1, 1967, INCLUDING THOSE
RELEASED ON BAIL PRIOR TO SENTENCE.  APPELLEES THUS ARE DISADVANTAGED
IN THE COMPUTATION OF TIME ONLY IN COMPARISON WITH THOSE WHO WERE
CONVICTED OF OFFENSES COMMITTED PRIOR TO SEPTEMBER 1, 1967, AND MADE
BAIL PRIOR TO TRIAL.  EVEN THE ADVERSE IMPACT OF THIS DIFFERENCE IS
LESSENED, THOUGH NOT ELIMINATED, BY THE FACT THAT NEW YORK DID NOT
DEPRIVE APPELLEES OF CREDIT FOR THE FULL AMOUNT OF ACTUAL TIME SPENT IN
JAIL PRIOR TO TRIAL AND SENTENCING BUT ONLY OF THE POTENTIAL ADDITIONAL
10 DAYS PER MONTH OF GOOD TIME ORDINARILY AVAILABLE UNDER SEC. 230(2)
TO INMATES FOR GOOD CONDUCT AND EFFICIENT PERFORMANCE OF DUTY.  /12/ 

WE NOTE, FURTHER, THAT THE DISTINCTION OF WHICH APPELLEES COMPLAIN
AROSE IN THE COURSE OF THE STATE'S SENSITIVE AND DIFFICULT EFFORT TO
ENCOURAGE FOR ITS PRISONERS CONSTRUCTIVE FUTURE CITIZENSHIP WHILE
AVOIDING THE DANGER OF RELEASING THEM PREMATURELY UPON SOCIETY.  THE
DETERMINATION OF AN OPTIMAL TIME FOR PAROLE ELIGIBILITY ELICITED
MULTIPLE LEGISLATIVE CLASSIFICATIONS AND GROUPINGS, WHICH THE COURT
BELOW RIGHTLY CONCLUDED REQUIRE ONLY SOME RATIONAL BASIS TO SUSTAIN
THEM.  JAMES V. STRANGE, 407 U.S. 128, 140(1972); LINDSEY V. NORMET,
405 U.S. 56, 73-74(1972; SCHILB V. KUEBEL, 404 U.S. 357(1971);
DANBRIDGE V. WILLIAMS, 397 U.S. 471, 487(1970).  APPELLEES THEMSELVES
RECOGNIZE THIS TO BE THE APPROPRIATE STANDARD.  /13/  FOR THIS COURT
HAS OBSERVED THAT "(THE PROBLEMS OF GOVERNMENT ARE PRACTICAL ONES AND
MAY JUSTIFY, IF THEY DO NOT REQUIRE, ROUGH ACCOMMODATIONS-- ILLOGICAL,
IT MAY BE, AND UNSCIENTIFIC."  METROPOLIS THEATRE CO. V. CITY OF
CHICAGO, 228 U.S. 61, 69-70 (1913).  WE DO NOT WISH TO INHIBIT STATE
EXPERIMENTAL CLASSIFICATIONS IN A PRACTICAL AND TROUBLESOME AREA, BUT
INQUIRE ONLY WHETHER THE CHALLENGED DISTINCTION RATIONALLY FURTHERS
SOME LEGITIMATE, ARTICULATED STATE PURPOSE.  WE CONCLUDE THAT IT DOES. 

        II 

THE COMMISSIONER DEFENDS THE DISTINCTION BY NOTING THAT "STATE
PRISONS DIFFER FROM COUNTY JAILS WITH RESPECT TO PURPOSE, USAGE AND
AVAILABILITY OF FACILITIES."  STATE PRISONS ARE "INTENDED TO HAVE
REHABILITATION AS A PRIME PURPOSE AND THE FACILITIES AT THESE
INSTITUTIONS ARE BUILT AND EQUIPPED TO SERVE THIS PURPOSE."  THE
COMMISSIONER CITES THE PRESENCE AT STATE PRISONS OF "EDUCATIONAL AND
VOCATIONAL SERVICES SUCH AS SCHOOLS, FACTORIES, JOB-TRAINING PROGRAMS
AND RELATED ACTIVITIES."  /14/  AT ARGUMENT, THE COMMISSIONER NOTED:
"WE HAVE BARBER SHOPS.  WE TEACH TRADES.  WE MANUFACTURE A LOT OF GOODS
. . . GREENHAVEN STATE PRISON HAS A TEXTILE FACTORY."  /15/ 

WE PASS NO JUDGMENT ON THE SUCCESS OR MERITS OF THE STATE'S EFFORTS,
BUT NOTE ONLY THAT AT STATE PRISONS A SERIOUS REHABILITATIVE PROGRAM
EXISTS.  COUNTY JAILS, ON THE OTHER HAND, SERVE PRIMARILY AS DETENTION
CENTERS.  THE COMMISSIONER ASSERTS THEY ARE "NEITHER EQUIPPED NOR
INTENDED TO DO ANYTHING MORE THAN DETAIN PEOPLE AWAITING TRIAL AND
MAINTAIN NO SCHOOLS, RUN NO FACTORIES AND REQUIRE NO WORK FROM THESE
INMATES."  /16/  WHILE APPELLEES DO POINT TO THE EXISTENCE OF SOME
REHABILITATIVE OR RECREATIONAL FACILITIES WITHIN SOME COUNTY JAILS,
/17/  IT IS CLEAR THAT NOTHING COMPARABLE TO THE STATE'S REHABILITATIVE
EFFORT EXISTS. 

THESE SIGNIFICANT DIFFERENCES AFFORD THE BASIS FOR A DIFFERENT
TREATMENT WITHIN A CONSTITUTIONAL FRAMEWORK.  WE NOTE THAT THE GRANTING
OF GOOD-TIME CREDIT TOWARD PAROLE ELIGIBILITY TAKES INTO ACCOUNT A
PRISONER'S REHABILITATIVE PERFORMANCE.  SECTION 230(2) OF THE NEW YORK
CORRECTION LAW AUTHORIZES SUCH CREDIT TOWARD THE MINIMUM PAROLE DATE
"FOR GOOD CONDUCT AND EFFICIENT AND WILLING PERFORMANCE OF DUTIES
ASSIGNED."  /18/  THE REGULATIONS OF THE NEW YORK DEPARTMENT OF
CORRECTIONS, 7 N.Y.C.R.R. 260.1(A), STATES THAT:  "(THE OPPORTUNITY TO
EARN GOOD BEHAVIOR ALLOWANCES OFFERS INMATES A TANGIBLE REWARD FOR
POSITIVE EFFORTS MADE DURING INCARCERATION."  /19/  AS THE STATUTE AND
REGULATIONS CONTEMPLATE STATE EVALUATION OF AN INMATE'S PROGRESS TOWARD
REHABILITATION, IN AWARDING GOOD TIME, /20/  IT IS REASONABLE NOT TO
AWARD SUCH TIME FOR PRETRIAL DETENTION IN A COUNTY JAIL WHERE NO
SYSTEMATIC REHABILITATIVE PROGRAMS EXIST AND WHERE THE PRISONER'S
CONDUCT AND PERFORMANCE ARE NOT EVEN OBSERVED AND EVALUATED BY THE
RESPONSIBLE STATE PRISON OFFICIALS.  FURTHER, IT WOULD HARDLY BE
APPROPRIATE FOR THE STATE TO UNDERTAKE IN THE PRETRIAL DETENTION PERIOD
PROGRAMS TO REHABILITATE A MAN STILL CLOTHED WITH A PRESUMPTION OF
INNOCENCE.  IN SHORT, AN INMATE IN COUNTY JAIL IS NEITHER UNDER THE
SUPERVISION OF THE STATE CORRECTION DEPARTMENT NOR PARTICIPATING IN THE
STATE'S REHABILITATIVE PROGRAMS.  WHERE THERE IS NO EVALUATION BY STATE
OFFICIALS AND LITTLE OR NO REHABILITATIVE PARTICIPATION FOR ANYONE TO
EVALUATE, THERE IS A RATIONAL JUSTIFICATION FOR DECLINING TO GIVE GOOD
TIME CREDIT.  /21/

        III 

WE DO NOT AGREE WITH THE COURT BELOW THAT THE INTEGRITY OF
APPELLANTS' ASSERTIONS AS TO REHABILITATION IS UNDERMINED BY THE FACT
THAT THE STATE DOES GRANT UNDER SEC. 230(3) GOOD-TIME CREDIT FOR
PRESENTENCE JAIL TIME TO COUNTY PENITENTIARY INMATES AND UNDER SEC.
230(4) TO STATE PRISONERS FOR THE PURPOSE OF CALCULATING THEIR
STATUTORY RELEASE DATES.  /22/  THE LEGISLATURE COULD HAVE CONCLUDED
RATIONALLY THAT COUNTY PENITENTIARY INMATES, WHO ARE NONFELONS WITH
LESS THAN ONE-YEAR SENTENCES, REQUIRED QUANTITATIVELY AND QUALITATIVELY
LESS REHABILITATION-- WITH FEWER RISKS OF MISEVALUATION-- THAN INMATES
CONFINED TO STATE PRISON FOR MORE SERIOUS CRIMES.  AND THE LEGISLATURE
COULD RATIONALLY HAVE DISTINGUISHED BETWEEN THE MINIMUM PAROLE DATE AND
THE STATUTORY RELEASE DATE ON THE GROUND THAT AN ACCELERATION OF THE
MINIMUM PAROLE DATE POSED A GREATER DANGER THAT AN INMATE WOULD BE
RELEASED WITHOUT ADEQUATE EXPOSURE TO REHABILITATIVE PROGRAMS AND
WITHOUT ADEQUATE EVALUATION BY PRISON OFFICIALS.  THUS, NEW YORK'S
DECISION TO DENY GOOD-TIME CREDIT FOR PRESENTENCE JAIL TIME SOLELY WITH
RESPECT TO A STATE PRISONER'S MINIMUM PAROLE DATE IS RATIONALLY
JUSTIFIED ON THE GROUND THAT THE RISK OF PREMATURELY RELEASING
UNREHABILITATED OR DANGEROUS CRIMINALS MAY WELL BE GREATEST WHEN THE
PAROLE DECISION IS MADE PRIOR TO EXPIRATION OF THE MINIMUM SENTENCE. 

        IV 

NEITHER APPELLEES NOR THE COURT BELOW CONTENDED THAT INCREASED
OPPORTUNITY FOR STATE EVALUATION OF AN INMATE'S BEHAVIOR AND
REHABILITATIVE PROGRESS WAS NOT A PURPOSE OF THE CHALLENGED PROVISION
OF SEC. 230(3).  APPELLEES STATE ONLY THAT THE REHABILITATIVE PURPOSE
WAS NOT THE "OVER-RIDING" ONE, /23/  AND THE DISTRICT COURT NOTED THAT
"THE LEGISLATURE'S PRIMARY AIM IN ENACTING THE GOOD TIME STATUTE WAS TO
FOSTER AND INSURE THE MAINTENANCE OF PRISON DISCIPLINE."  332
F.SUPP.,AT 978.  /24/  WE DO NOT DISPUTE THESE STATEMENTS:  THE
DISCIPLINARY PURPOSE IS CERTAINLY AN IMPORTANT AND POSSIBLY THE
"PRIMARY" AIM OF THE LEGISLATION.  /25/  YET, OUR DECISIONS DO NOT
AUTHORIZE COURTS TO PICK AND CHOOSE AMONG LEGITIMATE LEGISLATIVE AIMS
TO DETERMINE WHICH IS PRIMARY AND WHICH SUBORDINATE.  RATHER,
LEGISLATIVE SOLUTIONS MUST BE RESPECTED IF THE "DISTINCTIONS DRAWN HAVE
SOME BASIS IN PRACTICAL EXPERIENCE," SOUTH CAROLINA V. KATZENBACH, 383
U.S. 301, 331(1966), OR IF SOME LEGITIMATE STATE INTEREST IS ADVANCED,
DANBRIDGE V. WILLIAMS, 397 U.S.,AT 486.  SO LONG AS THE STATE PURPOSE
UPHOLDING A STATUTORY CLASS IS LEGITIMATE AND NONILLUSORY, ITS LACK OF
PRIMACY IS NOT DISQUALIFYING. 

WHEN CLASSIFICATIONS DO NOT CALL FOR STRICT JUDICIAL SCRUTINY, THIS
IS THE ONLY APPROACH CONSISTENT WITH PROPER JUDICIAL REGARD FOR THE
JUDGMENTS OF THE LEGISLATIVE BRANCH.  THE SEARCH FOR LEGISLATIVE
PURPOSE IS OFTEN ELUSIVE ENOUGH, PALMER V. THOMPSON, 403 U.S.
217(1971), WITHOUT A REQUIREMENT THAT PRIMACY BE ASCERTAINED. 
LEGISLATION IS FREQUENTLY MULTIPURPOSED:  THE REMOVAL OF EVEN A
"SUBORDINATE" PURPOSE MAY SHIFT ALTOGETHER THE CONSENSUS OF LEGISLATIVE
JUDGMENT SUPPORTING THE STATUTE.  PERMITTING NULLIFICATION OF STATUTORY
CLASSIFICATIONS BASED RATIONALLY ON A NONPRIMARY LEGISLATIVE PURPOSE
WOULD ALLOW COURTS TO PERUSE LEGISLATIVE PROCEEDINGS FOR SUBTLE
EMPHASES SUPPORTING SUBJECTIVE IMPRESSIONS AND PREFERENCES.  THE EQUAL
PROTECTION CLAUSE DOES NOT COUNTENANCE SUCH SPECULATIVE PROBING INTO
THE PURPOSES OF A COORDINATE BRANCH.  WE HAVE SUPPLIED NO IMAGINARY
BASIS OR PURPOSE FOR THIS STATUTORY SCHEME, BUT WE LIKEWISE REFUSE TO
DISCARD A CLEAR AND LEGITIMATE PURPOSE BECAUSE THE COURT BELOW
PERCEIVED ANOTHER TO BE PRIMARY.              V 

AS THE CHALLENGED CLASSIFICATION HERE RATIONALLY PROMOTES THE
LEGITIMATE DESIRE OF THE STATE LEGISLATURE TO AFFORD STATE PRISON
OFFICIALS AN ADEQUATE OPPORTUNITY TO EVALUATE BOTH AN INMATE'S CONDUCT
AND HIS REHABILITATIVE PROGRESS BEFORE HE IS ELIGIBLE FOR PAROLE, THE
DECISION OF THE DISTRICT COURT IS                   REVERSED. 

/1/  SECTION 230(3): 

"IN THE CASE OF A DEFINITE SENTENCE PRISONER, SAID REDUCTION SHALL
BE COMPUTED UPON THE TERM OF THE SENTENCE AS IMPOSED BY THE COURT, LESS
JAIL TIME ALLOWANCE, AND IN THE CASE OF AN INDETERMINATE SENTENCE
PRISONER SAID REDUCTION SHALL BE COMPUTED UPON THE MINIMUM TERM OF SUCH
SENTENCE, LESS JAIL TIME ALLOWANCE.  NO PRISONER, HOWEVER, SHALL BE
RELEASED UNDER THE PROVISIONS HEREOF FROM A STATE PRISON UNTIL HE SHALL
HAVE SERVED AT LEAST ONE YEAR.  IN THE CASE OF A PRISONER CONFINED IN A
PENITENTIARY, SAID REDUCTION SHALL BE COMPUTED UPON THE TERM OF
SENTENCE AS IMPOSED BY THE COURT, INCLUDING JAIL TIME ALLOWANCE. 
SUBJECT TO THE RULES OF THE COMMISSIONER OF CORRECTION, THE MAXIMUM
REDUCTION OF TEN DAYS IN EACH MONTH MAY, IN THE DISCRETION OF THE BOARD
HEREINAFTER PROVIDED FOR, BE IN WHOLE OR IN PART WITHHELD, FORFEITED OR
CANCELLED, IN ACCORDANCE WITH THE RULES OF THE COMMISSIONER OF
CORRECTION FOR BAD CONDUCT, VIOLATION OF PRISON RULES OR FAILURE TO
PERFORM PROPERLY DUTIES ASSIGNED." 

OTHER RELEVANT SECTIONS READ AS SET FORTH BELOW. 

"EVERY PRISONER CONFINED IN A STATE PRISON OR PENITENTIARY, EXCEPT A
PRISONER SENTENCED FOR AN INDETERMINATE TERM HAVING A MINIMUM OF ONE
DAY AND A MAXIMUM OF HIS NATURAL LIFE, MAY RECEIVE, FOR GOOD CONDUCT
AND EFFICIENT AND WILLING PERFORMANCE OF DUTIES ASSIGNED, A REDUCTION
OF HIS SENTENCE NOT TO EXCEED TEN DAYS FOR EACH MONTH OF THE MINIMUM
TERM IN THE CASE OF AN INDETERMINATE SENTENCE, OR OF THE TERM AS
IMPOSED BY THE COURT IN THE CASE OF A DEFINITE SENTENCE.  THE MAXIMUM
REDUCTION ALLOWABLE UNDER THIS PROVISION SHALL BE FOUR MONTHS PER YEAR,
BUT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO CONFER ANY RIGHT
WHATSOEVER UPON ANY PRISONER TO DEMAND OR REQUIRE THE WHOLE OR ANY PART
OF SUCH REDUCTION." 


"EVERY PRISONER CONFINED IN AN INSTITUTION UNDER THE JURISDICTION OF
THE STATE DEPARTMENT OF CORRECTION FOR AN INDETERMINATE TERM, EXCEPT A
PRISONER SENTENCED FOR A TERM HAVING A MAXIMUM OF NATURAL LIFE, MAY
RECEIVE, FOR GOOD CONDUCT AND EFFICIENT AND WILLING PERFORMANCE OF
DUTIES ASSIGNED, A REDUCTION OF HIS SENTENCE NOT TO EXCEED TWO DAYS FOR
EACH MONTH OF THE MAXIMUM TERM.  FOR MERITORIOUS PROGRESS AND
ACHIEVEMENT IN A TREATMENT PROGRAM TO WHICH HE HAS BEEN ASSIGNED,
FOLLOWING APPROPRIATE TESTING AND CLASSIFICATION, SUCH PRISONER MAY
ALSO RECEIVE A REDUCTION OF HIS SENTENCE NOT TO EXCEED THREE ADDITIONAL
DAYS FOR EACH MONTH OF THE MAXIMUM TERM.  IN NO EVENT, HOWEVER, SHALL
THE MAXIMUM REDUCTION ALLOWABLE UNDER THIS SUBDIVISION EXCEED TWO
MONTHS FOR EACH YEAR OF THE MAXIMUM SENTENCE, NOR SHALL ANY SUCH
REDUCTION BE CALCULATED UNDER THIS SUBDIVISION TO REDUCE THE TIME
ACTUALLY SERVED TO A TERM LESS THAN THE MINIMUM SENTENCE IMPOSED BY THE
COURT . . . " 

/2/  THE COMMISSIONER CLAIMS IN HIS BRIEF THAT THE COURT BELOW
SHOULD HAVE TREATED THE INSTANT CASE, NOT AS A CLASS ACTION, FED. RULE
CIV. PROC. 23, BUT AS A PETITION FOR HABEAS CORPUS WITH THE ATTENDANT
REQUIREMENT THAT APPELLEES EXHAUST THEIR STATE REMEDIES.  BRIEF FOR
APPELLANTS 2.  APPELLANTS DID NOT, HOWEVER, RAISE THIS QUESTION IN
THEIR JURISDICTIONAL STATEMENT, AND DID NOT ARGUE IT BEFORE THE COURT. 
IN LIGHT OF THIS, IT BECOMES UNNECESSARY TO COMMENT FURTHER ON ANY
POSSIBLE EXHAUSTION QUESTION. 

/3/  HE ALSO HAS A MAXIMUM EXPIRATION DATE WHICH IS THE DATE OF THE
MAXIMUM SENTENCE TO WHICH AN INMATE CAN BE HELD IF HE RECEIVES NO GOOD
TIME CREDIT AT ALL.  THIS DATE, UNLIKE THE OTHER TWO, BEARS NO DIRECT
RELEVANCE TO THE INSTANT CASE. 

/4/  BOTH PRISONERS HERE WERE SENTENCED TO INDETERMINATE TERMS.  SEE
SEC. 230(1): 

" . . . A SENTENCE TO IMPRISONMENT IN A STATE PRISON HAVING MINIMUM
AND MAXIMUM LIMITS FIXED BY THE COURT OR THE GOVERNOR IS AN
INDETERMINATE SENTENCE." 

/5/  AS THE COURT BELOW NOTED: 

"THERE IS NO DOUBT THAT BY ITS EXPRESS WORDING SECTION 230 MANDATES
THE DENIAL OF GOOD TIME CREDIT FOR THE TIME PLAINTIFFS SERVED IN COUNTY
JAIL AWAITING TRIAL AND SENTENCING.  SUBSECTION 2 THEREOF PROVIDES THAT
A STATE PRISONER MAY RECEIVE, 'FOR GOOD CONDUCT AND EFFICIENT AND
WILLING PERFORMANCE OF DUTIES ASSIGNED, A REDUCTION OF HIS SENTENCE NOT
TO EXCEED TEN DAYS FOR EACH MONTH OF THE MINIMUM TERM IN THE CASE OF AN
INDETERMINATE SENTENCE . . . ,' AND SUBSECTION 3 STATES THAT 'IN THE
CASE OF AN INDETERMINATE SENTENCE PRISONER SAID REDUCTION SHALL BE
COMPUTED UPON THE MINIMUM TERM OF SUCH SENTENCE, LESS JAIL TIME
ALLOWANCE.'"  332 F.SUPP.  973, 974-975. 

/6/  SEE PEOPLE V. DEEGAN, 56 MISC.2D 567, 289 N.Y.S.2D 285 (1968);
PAUL V. WARDEN, N.Y.L.J., MAY 21, 1969, P. 18, COL. 6. 

/7/  "IN THE CASE OF A PRISONER CONFINED IN A PENITENTIARY, SAID
REDUCTION SHALL BE COMPUTED UPON THE TERM OF THE SENTENCE AS IMPOSED BY
THE COURT, INCLUDING JAIL TIME ALLOWANCE." 

/8/  BRIEF FOR APPELLEES 5. 

/9/  ID., AT 5-6. 

/10/  THE COURT BELOW CORRECTLY NOTED: 

"(THE) STATUTORY SCHEME OF SEC. 230, WHICH IS THE SUBJECT OF THIS
LAWSUIT, IS NO LONGER THE LAW IN NEW YORK.  ON SEPTEMBER 1, 1967, SEC.
230 WAS REPLACED BY SECS. 803 AND 805 OF THE CORRECTION LAW AND SECS.
70.30 AND 70.40 OF THE NEW PENAL LAW, WHICH SECTIONS APPLY TO ALL
CONVICTIONS FOR OFFENSES COMMITTED ON OR AFTER THAT DATE (BUT NOT TO
CONVICTIONS-- AS OF PLAINTIFF HEREIN-- FOR OFFENSES COMMITTED PRIOR TO
THE EFFECTIVE DATE).  THUS, THE SCOPE OF THIS CASE (AND OF THE PROPOSED
CLASS) IS NECESSARILY LIMITED, FOR THE CHALLENGED STATUTE, SEC. 230(3)
OF THE CORRECTION LAW, NOW APPLIES ONLY TO THOSE PRISONERS WHO WERE
CONVICTED FOR OFFENSES COMMITTED BEFORE SEPTEMBER 1, 1967, WHOSE
MINIMUM TERMS HAVE NOT YET EXPIRED, WHO HAVE NOT YET MET WITH THE
PAROLE BOARD, AND WHO HAVE NOT YET ELECTED THE 'CONDITIONAL RELEASE'
PROGRAM OFFERED BY THE NEW LAW AND MADE AVAILABLE TO OLD LAW PRISONERS
BY SEC. 230-A OF THE CORRECTION LAW.  OF THESE PRISONERS, A SMALLER
CLASS YET-- COMPRISED OF THOSE INMATES WHO SERVED TIME IN COUNTY JAIL
PRIOR TO SENTENCE TO STATE PRISON-- ACTUALLY FEEL THE EFFECT OF SEC.
230(3)'S PROSCRIPTION AGAINST GOOD TIME CREDIT FOR JAIL TIME. 
NEVERTHELESS, THE BRIEFS IN THIS CASE ATTEST TO THE CONTINUING EFFECT
OF THAT MANDATE ON A SUBSTANTIAL NUMBER OF INDIVIDUALS."  332
F.SUPP.,AT 975 N. 4. 

/11/  BRIEF FOR APPELLANTS 12. 

/12/  AS NOTED ABOVE, THIS WOULD MAKE A DIFFERENCE OF THREE AND FOUR
MONTHS, RESPECTIVELY, IN THE TIME APPELLEES RUTHERFORD AND ROYSTER WERE
ELIGIBLE TO APPEAR BEFORE THE PAROLE BOARD. 

/13/  TR. OF ORAL ARG. 30. 

/14/  BRIEF FOR APPELLANTS 14. 

/15/  TR. OF ORAL.  ARG.  13. 

/16/  BRIEF FOR APPELLANTS 15. 

/17/  BRIEF FOR APPELLEES 17.  BUT THE STATE NOTES THAT "SOME
COUNTIES HAVE ABSOLUTELY NOTHING.  SOME HAVE A LITTLE SOMETHING."  TR.
OF ORAL ARG. 6. 

/18/  SEE N. 1, SUPRA. 

/19/  APPELLANTS FURTHER NOTE THAT: 

"SECTION 260.3 SETS FORTH THE CRITERIA FOR AWARDING ALLOWANCES AND
STATES: 

"'(B) IN EVALUATING THE AMOUNT OF ALLOWANCE TO BE GRANTED, THE
STATUTORY CRITERIA (I.E. GOOD BEHAVIOR, EFFICIENT AND WILLING
PERFORMANCE OF DUTIES ASSIGNED, PROGRESS AND ACHIEVEMENT IN AN ASSIGNED
TREATMENT PROGRAM) SHALL BE VIEWED IN THE LIGHT OF THE FOLLOWING
FACTORS: 

"'(1) THE ATTITUDE OF THE INMATE; 

"'(2) THE CAPACITY OF THE INMATE; AND 

"'(3) THE EFFORTS MADE BY THE INMATE WITHIN THE LIMITS OF HIS
CAPACITY.' 

"THESE FACTORS ARE EVALUATED BY A TIME ALLOWANCE COMMITTEE, WHOSE
PURPOSE IS TO MAKE RECOMMENDATIONS TO THE SUPERINTENDENT AS TO THE
AMOUNT OF GOOD BEHAVIOR ALLOWANCE TO BE GRANTED TO INMATES WHO ARE
ELIGIBLE TO BE CONSIDERED FOR SUCH ALLOWANCE.  7 N.Y.C.R.R. 261.2.  THE
TIME ALLOWANCE COMMITTEE AWARDS GOOD TIME ON THE FOLLOWING CRITERIA (7
N.Y.C.R.R. 261.3): 

"'(D) THE COMMITTEE SHALL CONSIDER THE ENTIRE FILE OF THE INMATE AND
SHALL INTERVIEW THE INMATE AND THEN SHALL DECIDE UPON A RECOMMENDATION
AS TO THE AMOUNT OF GOOD BEHAVIOR ALLOWANCE TO BE GRANTED, APPLYING THE
PRINCIPLES SET FORTH IN SECTIONS 260.3 AND 260.4 OF THIS PART. 

"'(E) THE COMMITTEE SHALL NOT RECOMMEND THE GRANTING OF THE TOTAL
ALLOWANCE AUTHORIZED BY LAW OR THE WITHHOLDING OF ANY PART OF THE
ALLOWANCE IN ACCORDANCE WITH ANY AUTOMATIC RULE, BUT SHALL APPRAISE THE
ENTIRE INSTITUTIONAL EXPERIENCE OF THE INMATE AND MAKE ITS OWN
DETERMINATION.'"  REPLY BRIEF FOR APPELLANTS 2-3. 

/20/  SEE ALSO THE AFFIDAVIT OF THE DEPUTY COMMISSIONER OF THE
DEPARTMENT OF CORRECTIONS, JOHN R. CAIN, WHO STATED THAT: 

"THE ACTUAL ALLOWANCE OF 'GOOD TIME' IS DISCRETIONARY AND IS AWARDED
AS AN INCENTIVE FOR GOOD CONDUCT.  IT IS A MEANS FOR ENCOURAGING
PARTICIPATION IN PROGRAMS, EFFICIENT WORK AND DISCIPLINE. 

"THE STATE CORRECTIONAL SYSTEM SEEKS TO ENCOURAGE REHABILITATION BY
WORK PARTICIPATION BY INMATES, JOB TRAINING PROGRAMS AND EDUCATION
PROGRAMS.  AN INMATE CAN BE EVALUATED IN HIS WORK AND PARTICIPATION IN
THE FACILITY'S PROGRAMS AND 'GOOD TIME' GRANTED AS AN INCENTIVE.  PRIOR
TO BEING RECEIVED IN THE FACILITY, HOWEVER, AN INMATE WHO IS IN JAIL IS
NOT UNDER THE SUPERVISION OF THE STATE CORRECTION DEPARTMENT AND IS NOT
INVOLVED IN THE FACILITY PROGRAM.  SINCE THE INMATE IS NOT
PARTICIPATING IN THE STATE PROGRAMS WHILE IN JAIL THERE IS NO
OPPORTUNITY TO EVALUATE HIM NOR NEED TO ENCOURAGE HIS PARTICIPATION." 
APP. 19A. 

/21/  APPELLANTS FURTHER CORRECTLY NOTE: 

"IN FACT, UNTIL RECENTLY CHANGED BY FEDERAL POLICY, THE FEDERAL
PRISON SYSTEM ITSELF DID NOT REQUIRE THE AWARDING OF GOOD TIME FOR PRE
TRIAL INCARCERATION UNDER 18 U.S.C. 4161, WHICH AWARDS GOOD TIME SOLELY
FOR GOOD BEHAVIOR.  SECTION 4161 STATES THAT GOOD TIME BEGINS TO RUN
'WITH THE DAY ON WHICH THE SENTENCE COMMENCES TO RUN', AND THE SENTENCE
DOES NOT START TO RUN UNTIL THE PRISONER IS RECEIVED IN A FEDERAL
PENITENTIARY.  SEE BLACKSHEAR V. UNITED STATES, 434 F.2D 58 (5TH CIR.
1970).  THE FEDERAL COURTS HAVE UNIFORMLY UPHELD THE DENIAL OF THE
OPPORTUNITY TO EARN GOOD TIME ON THIS JAIL TIME.  BANDY V. WILLINGHAM,
398 F.2D 333 (10TH CIR. 1968), CERT. DEN.  398 U.S. 1006; ADERHOLD V.
ELLIS, 84 F.2D 543 (5TH CIR. 1936), CERT. DEN.  299 U.S. 587; SWOPE V.
LAWTON, 83 F.2D 814 (9TH CIR. 1936)."  BRIEF FOR APPELLANTS 20-21. 

/22/  SEE SUPRA, AT 268, AND NN. 7 AND 8.  THE COURT BELOW STATED: 

"WHATEVER THE MERIT IN DEFENDANTS' ATTEMPTED DISTINCTION, THE FACT
REMAINS THAT STATE PRISONERS CAN BE, AND, UNDER CERTAIN CIRCUMSTANCES,
ARE, GRANTED GOOD TIME CREDIT FOR JAIL TIME FOR REASONS OTHER THAN AS A
REWARD FOR PARTICIPATION IN THE VARIOUS REHABILITATIVE PROGRAMS OF THE
STATE PRISON SYSTEM.  THE AWARDING OF GOOD TIME FOR JAIL TIME TO THESE
TWO CLASSES OF PRISONERS ONLY REINFORCES THE BELIEF THAT THE
LEGISLATURE'S PRIMARY AIM IN ENACTING THE GOOD TIME STATUTE WAS TO
FOSTER AND INSURE THE MAINTENANCE OF PRISON DISCIPLINE."  332
F.SUPP.,AT 978. 

/23/  AT ORAL ARGUMENT THE FOLLOWING INSTRUCTIVE COLLOQUY OCCURRED: 

"Q.  THEN IT IS YOU POSITION THAT THE ONLY PURPOSE AT ALL, SIR, BY
THE STATUTE, EXCLUSIVELY, THE ONLY SINGLE PURPOSE, IS THE DISCIPLINARY
ONE? 

"MR. SORGE:  YOUR HONOR, IT IS EXTREMELY DIFFICULT TO SAY WHETHER
THE ONLY PURPOSE IS JUST FOR THE DISCIPLINE.  I BELIEVE THAT THE COURT
HAS-- 

"Q.  IF A PURPOSE IS THE REHABILITATION ONE, THEN ARE YOU NOT IN
SOME TROUBLE? 

"MR. SORGE:  IF THE MAIN PURPOSE IS? 

"Q.  IF A PURPOSE, NOT THE MAIN PURPOSE, A PURPOSE. 

"MR. SORGE:  I DO NOT BELIEVE SO, YOUR HONOR, BECAUSE, AS THE
DISTRICT COURT STATED, THE OVERRIDING CONSIDERATION IN THIS CASE IS
DISCIPLINARY. 

        .          .          .          . 

"Q.  YOU GO FURTHER THEN THAN THE DISTRICT COURT, I TAKE IT, BECAUSE
I READ THE DISTRICT COURT'S OPINION THE SAME WAY MR. JUSTICE BRENNAN
DOES, AS SAYING THAT REHABILITATION IS A SUBORDINATE FUNCTION AND THAT
ITS OPINION IS BASED ON THAT.  YOU SAY THAT IT REALLY IS NO FUNCTION AT
ALL? 

"MR. SORGE:  I BELIEVE THAT IF YOU TAKE THE STATE PRISONERS
THEMSELVES, MR. JUSTICE, THERE MIGHT BE A SUBORDINATE POSITION. 
HOWEVER, I WOULD REPEAT THAT THE OVERRIDING CONSIDERATION IS THE
DISCIPLINARY ASPECT OF IT."  TR. OF ORAL ARG. 28-30. 

/24/  SEE ALSO THE COURT'S STATEMENT THAT: 

"DEFENDANTS CONTEND THAT GOOD TIME IS GRANTED AS AN INCENTIVE TO THE
INMATES TO PARTICIPATE IN THESE PRISON REHABILITATION PROGRAMS AND
THAT, SINCE COUNTY JAILS ARE NOT EQUIPPED TO PROVIDE SUCH SERVICES,
THERE IS NO BASIS FOR GRANTING GOOD TIME FOR TIME SERVED THEREIN.  IF
IT WERE CLEAR THAT THE AWARDING OF GOOD TIME WAS BASED SOLELY AND
EXCLUSIVELY ON AN EVALUATION OF AN INMATE'S PERFORMANCE IN SUCH
PROGRAMS SO ENDEMIC TO THE STATE PRISON SYSTEM, THE DENIAL OF GOOD TIME
FOR JAIL TIME MIGHT BE UNDERSTANDABLE; HOWEVER, THIS DOES NOT APPEAR TO
BE THE CASE.  RATHER, IT SEEMS THAT THE OVERRIDING CONSIDERATION IN THE
GRANTING OF GOOD TIME REDUCTIONS IS THE MAINTENANCE OF PRISON
DISCIPLINE."  332 F.SUPP.,AT 977. 

/25/  THE COURT BELOW NOTED THAT THE DISCIPLINARY PURPOSE OF THE
STATUTE IS DEMONSTRATED BY THE FACT THAT "A PRISONER IS IMMEDIATELY AND
AUTOMATICALLY CREDITED WITH A MAXIMUM ALLOWANCE OF GOOD TIME CREDIT FOR
FUTURE GOOD BEHAVIOR AT THE TIME HIS MINIMUM PAROLE DATE IS INITIALLY
FIXED UPON HIS ARRIVAL IN STATE PRISON.  IN EFFECT, THEN, A PRISONER
DOES NOT 'EARN' GOOD TIME CREDIT AS TIME GOES ON FOR EXEMPLARY
PERFORMANCE IN ASSORTED PRISON PROGRAMS BUT RATHER SIMPLY AVOIDS BEING
PENALIZED FOR BAD BEHAVIOR."  THE COURT THEN CITED SEC. 235 OF NEW YORK
CORRECTION LAW PROVIDING THAT GOOD TIME MAY BE WITHHELD AS "'PUNISHMENT
FOR OFFENSES AGAINST THE DISCIPLINE OF THE PRISON OR PENITENTIARY'  . .
. "  332 F.SUPP.,AT 977-978.     THE STATEMENTS ABOVE DO DEMONSTRATE A
DISCIPLINARY PURPOSE FOR THE STATUTE, BUT DO NOT NEGATE THE
REHABILITATIVE ONE.  THERE IS NOTHING TO SHOW THAT GOOD-TIME CREDIT MAY
NOT BE REVOKED FOR FAILURE OF THE INMATE TO PARTICIPATE ACCEPTABLY IN
THE STATE'S REHABILITATIVE PROGRAM AS WELL AS FOR DISCIPLINARY
VIOLATIONS.  INDEED, SEC. 230(3) REQUIRES LOSS OF GOOD TIME FOR "BAD
CONDUCT, VIOLATION OF PRISON RULES OR FAILURE TO PERFORM PROPERLY
DUTIES ASSIGNED." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MARSHALL CONCURS,
DISSENTING. 

UNDER SEC. 230(3) OF THE NEW YORK CORRECTION LAW, A PRISONER LOSES
"GOOD TIME" AS PUNISHMENT FOR OFFENSES AGAINST THE DISCIPLINE OF THE
PRISON.  THE STATUTORY APPEARANCE OF INMATES BEFORE A PAROLE BOARD IS
COMPUTED BY ALLOWANCE OF UP TO 10 DAYS FOR "GOOD CONDUCT" EACH MONTH
UNDER THE LAW GOVERNING APPELLEES.  /1/  NO "GOOD TIME" CREDIT IS
ALLOWED, HOWEVER, FOR THE PERIOD OF THEIR PRESENTENCE INCARCERATION IN
A COUNTY JAIL.  THUS, TWO PRISONERS-- ONE OUT ON BAIL OR PERSONAL
RECOGNIZANCE PENDING TRIAL AND THE OTHER CONFINED IN JAIL WHILE
AWAITING TRIAL-- ARE TREATED DIFFERENTLY WHEN IT COMES TO PAROLE,
THOUGH EACH IS CONVICTED OF THE SAME CRIME AND RECEIVES THE IDENTICAL
SENTENCE.  THE RESULT, AS THE OPINION OF THE COURT MAKES PLAIN, IS THAT
APPELLEES ARE REQUIRED TO WAIT SOME MONTHS LONGER BEFORE THEY MAY
APPEAR BEFORE THE PAROLE BOARD THAN DO THOSE WHO WERE OUT ON BAIL OR ON
PERSONAL RECOGNIZANCE PENDING TRIAL BUT SENTENCED TO THE SAME TERM FOR
THE SAME CRIME. 

THE "GOOD TIME" DEDUCTION IS NOT BASED ON PROGRESS TOWARD
REHABILITATION BUT IS AN INDUCEMENT TO INHIBIT BAD CONDUCT.  THAT IS
WHAT THE THREE-JUDGE COURT HELD IN 322 F.SUPP.  973.  THAT CONSTRUCTION
ACCURATELY REFLECTS NEW YORK'S INTERPRETATION OF SEC. 230(3).  THE
COURT IN PEREZ V. FOLLETTE, 58 MISC.2D 319, 295 N.Y.S.2D 231, SAID: 

"THE POLICY UNDERLYING THE DISCRETIONARY GRANT OF GOOD TIME
REDUCTIONS IS CLEAR.  THE ATTITUDE AND CONDUCT OF PRISONERS SHOULD
IMPROVE IF THEY ARE OFFERED AN INCENTIVE FOR GOOD AND PRODUCTIVE
BEHAVIOR WHILE AT THE SAME TIME THE FACT THAT REDUCTIONS CAN BE
WITHHELD WILL INHIBIT BAD CONDUCT."  ID., AT 321, 295 N.Y.S.2D, AT
233. 

THAT DISCIPLINE-- NOT REHABILITATIVE PROGRESS-- IS THE KEY TO "GOOD
TIME" CREDIT IS EVIDENCED IN ANOTHER WAY.  ONCE A PRISONER ARRIVES AT
PRISON, HIS FUTURE "GOOD TIME" IS IMMEDIATELY COMPUTED AND CREDITED TO
HIS SENTENCE.  "IN EFFECT, THEN, A PRISONER DOES NOT 'EARN' GOOD TIME
CREDIT AS TIME GOES ON FOR EXEMPLARY PERFORMANCE IN ASSORTED PRISON
PROGRAMS BUT RATHER SIMPLY AVOIDS BEING PENALIZED FOR BAD BEHAVIOR." 
332 F.SUPP.,AT 978.  THAT IS CONFIRMED BY SEC. 235 OF THE NEW YORK
CORRECTION LAW: 

"(A) PUNISHMENT FOR OFFENSES AGAINST THE DISCIPLINE OF THE PRISON OR
PENITENTIARY (IS) IN ACCORDANCE WITH THE RULES HEREINBEFORE MENTIONED. 
REDUCTION CREDITED TO A PRISONER IN THE FIRST INSTANCE, IN HIS ACCOUNT,
BY THE WARDEN, AS PROVIDED IN SECTION TWO HUNDRED AND THIRTY, SHALL
STAND AS THE REDUCTION ALLOWED, UNLESS WITHHELD WHOLLY OR PARTLY BY THE
BOARD AS PUNISHMENT, AS ABOVE PROVIDED." 

MOREOVER, UNDER SEC. 230(4) OF THE ACT, JAIL TIME IS NOT EXCLUDED
FROM THE COMPUTATION OF A PRISONER'S MAXIMUM GOOD-TIME ALLOWANCE FROM
THE MAXIMUM TERM OF AN INDETERMINATE SENTENCE.  THAT IS THE EARLIEST
DATE ON WHICH AN INMATE MUST BE PAROLED, UNLIKE THE ONE WE HAVE HERE
INVOLVES THE EARLIEST DATE ON WHICH A PRISONER MAY BE PAROLED.  BUT NO
RATIONAL GROUNDS HAVE BEEN ADVANCED FOR ALLOWING "GOOD TIME" CREDIT FOR
JAIL TIME IN ONE CASE BUT NOT IN THE OTHER. 

THE CLAIM THAT "GOOD TIME" IS CORRELATED TO REHABILITATIVE PROGRAMS
THAT ONLY PRISONS HAVE IS THE RED HERRING IN THIS LITIGATION.  THE
DISTRICT COURT EXPOSED THE FALLACY IN THAT RATIONALE.  SINCE THE "GOOD
TIME" CREDIT IS TO INDUCE GOOD BEHAVIOR BY PRISONERS WHILE THEY ARE
CONFINED, THE PLACE OF THEIR CONFINEMENT BECOMES IRRELEVANT.  JAIL-TIME
ALLOWANCE IS ALLOWED THOSE CONFINED IN COUNTY PENITENTIARIES.  SEC.
230(3).  AND, AS I HAVE SAID, JAIL TIME IS CREDITED IN COMPUTING A
PRISONER'S STATUTORY RELEASE DATE. 

IT WOULD SEEM THAT THE "GOOD TIME" PROVISION IN SEC. 230(3) IS USED
CAPRICIOUSLY, SINCE IT IS ALLOWED IN CASES NOT DISSIMILAR TO THE
PRESENT ONE. 

AFTER ALL IS SAID AND DONE, THE DISCRIMINATION IN THE PRESENT CASE
IS A STATUTORY ONE LEVELED AGAINST THOSE TOO POOR TO RAISE BAIL AND
UNABLE TO OBTAIN RELEASE ON PERSONAL RECOGNIZANCE.  /2/  SEE PEOPLE V.
DEEGAN, 56 MISC.2D 567, 289 N.Y.S.2D 285.  THAT IS THE REAL RUB IN THE
PRESENT CASE. 

IN PAUL V. WARDEN, N.Y.L.J., MAY 21, 1969, P. 18, COL. 6, THE COURT
SAID: 

     "IN COMPUTING THE ALLOWANCE OF 'TIME OFF' FOR GOOD BEHAVIOR

  RESPONDENT CONSIDERED ONLY THAT TIME SERVED SUBSEQUENT TO

  SENTENCE AS ELIGIBLE FOR THE ALLOWANCE.  TIME SERVED PRIOR TO

  SENTENCE WAS EXCLUDED FROM THE COMPUTATION.  THE RESPONDENT'S

  COMPUTATION FOLLOWS THE METHOD SUGGESTED BY THE DEPARTMENT OF

  CORRECTION. 

"THIS COURT IS NOT IN AGREEMENT WITH (THE) METHOD EMPLOYED.  IT

  IS INEQUITABLE IN THAT IT DISCRIMINATES AGAINST THOSE PERSONS

  CHARGED WITH CRIME THAT ARE ABLE TO FURNISH BAIL UPON ARRAIGNMENT

  AND THOSE REMANDED AS A RESULT OF INABILITY TO FURNISH BAIL. 

  /3/ 

     "THE INEQUITY IS BLATANTLY APPARENT IN THE FOLLOWING CASES. 

  TWO PERSONS ARE CHARGED WITH CRIMES IDENTICAL IN NATURE.  ON

  ARRAIGNMENT DEFENDANT A FURNISHES BAIL.  A IS SUBSEQUENTLY

  SENTENCED, AFTER A TRIAL RESULTING IN A VERDICT FINDING HIM

GUILTY AS CHARGED, TO ONE YEAR IN THE COUNTY JAIL.  PREDICATED

  UPON HIS GOOD BEHAVIOR DURING THE PERIOD OF HIS INCARCERATION A

  WOULD BE ALLOWED A REDUCTION OF SIXTY DAYS FROM THE SENTENCE OF

  ONE YEAR AND WOULD SERVE A TOTAL OF 305 DAYS.  THE DEFENDANT B,

  IF CONFINED FOR A PERIOD OF 350 DAYS PRIOR TO TRIAL AND SENTENCE,

  AND UPON SENTENCE WAS SENTENCED TO CONFINEMENT FOR ONE YEAR WOULD

  ONLY BE ENTITLED TO 'TIME OFF' FOR THE PERIOD SERVED FOLLOWING

  SENTENCE OR ONE-SIXTH OF FIFTEEN DAYS FOR A TOTAL ALLOWANCE OF

TWO DAYS REDUCTION IN SENTENCE DESPITE GOOD BEHAVIOR DURING HIS

  ENTIRE PERIOD OF IMPRISONMENT.  B BECAUSE OF INABILITY TO FURNISH

  BAIL WOULD THUS SERVE 363 DAYS AS COMPARED TO THE 305 DAYS SERVED

  BY A. 

     "THIS COURT REFUSES TO COUNTENANCE SUCH DISPARITY AND
DISCRIMINATION." 

IF "GOOD TIME" WERE RELATED TO REHABILITATIVE PROGRESS, I WOULD
AGREE THAT THE LAW PASSES MUSTER UNDER THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  BUT SINCE "GOOD TIME" IS DISALLOWED ONLY TO
THOSE WHO CANNOT RAISE BAIL OR OBTAIN RELEASE ON PERSONAL RECOGNIZANCE,
THE DISCRIMINATION IS PLAINLY INVIDIOUS. 

WE DEAL HERE WITH A DEEPSEATED INEQUITY.  IN NEW YORK CITY AS OF
1964, 49% OF THOSE ACCUSED WERE IMPRISONED BEFORE TRIAL, WHILE ONLY 40%
OF THOSE ACCUSED WERE IMPRISONED AFTER CONVICTION.  /4/  SEE WALK,
PRETRIAL DETENTION AND ULTIMATE FREEDOM: A STATISTICAL STUDY, 39
N.Y.U.L.REV.  631, 634(1964).  IT IS POVERTY THAT IS "GENERALLY
ACCEPTED AS THE MAIN REASON FOR PRETRIAL DETENTION."  ID., AT 636.  THE
INEQUALITY APPARENTLY APPEARS IN THE END PRODUCT SINCE "THE LONGER THE
PERIOD OF DETENTION BEFORE DISPOSITION OF THE CASE, THE GREATER THE
LIKELIHOOD OF A PRISON SENTENCE . . . THE KEY SEEMS TO BE THE
DEFENDANT'S AT-LARGE STATUS AT THE TIME OF SENTENCING.  THE GLOW OF
FREEDOM APPARENTLY SHINES THROUGH."  ID., AT 635. 

ANOTHER SAMPLE OF 385 DEFENDANTS SHOWED THAT 64% OF THOSE
CONTINUOUSLY IN JAIL FROM ARRAIGNMENT TO ADJUDICATION WERE SENTENCED TO
PRISON, WHOLE ONLY 17% OF THE 374 WHO MADE BAIL RECEIVED PRISON
SENTENCES.  RANKIN, THE EFFECT OF PRETRIAL DETENTION, 39 N.Y.U.L.REV. 
641, 643(1964).  DETAINED PERSONS ARE MORE LIKELY TO BE SENTENCED TO
PRISON THAN BAILED PERSONS REGARDLESS OF WHETHER HIGH OR LOW BAIL
AMOUNTS HAVE BEEN SET.  ID., AT 641. 

THESE STUDIES WERE MADE BY THE VERA FOUNDATION FOUNDED BY LOUIS
SCHWEITZER.  SEE PROGRAMS IN CRIMINAL JUSTICE REFORM, VERA INSTITUTE OF
JUSTICE, TEN-YEAR REPORT 1961-1971(1972).  THAT REPORT STATES THAT
"PEOPLE WHO WERE TOO POOR TO AFFORD BAIL OR PRIVATE COUNSEL ENDED UP IN
PRISON MORE OFTEN THAN THOSE WHO COULD PAY."  ID., AT 96.  AND SEE
ARES, RANKIN, AND STURZ, THE MANHATTAN BAIL PROJECT:  AN INTERIM REPORT
ON THE USE OF PRE-TRIAL PAROLE, 38 N.Y.U.L.REV.  67(1963). 

THE PRESENT CASE IS ON THE PERIPHERY OF ONE OF THE MOST CRITICAL
PROBLEMS IN CRIMINAL LAW ENFORCEMENT. 

THE IMPORTANT ISSUE INVOLVED IN THIS CASE IS NOT WHEN AND WHETHER A
PRISONER IS RELEASED.  IT CONCERNS ONLY THE TIME WHEN THE PAROLE BOARD
MAY GIVE A HEARING.  TO SPEED UP THE TIME OF THAT HEARING FOR THOSE
RICH OR INFLUENTIAL ENOUGH TO GET BAIL OR RELEASE ON PERSONAL
RECOGNIZANCE AND TO DELAY THE TIME OF THE HEARING FOR THOSE WITHOUT THE
MEANS TO BUY A BAIL BOND OR THE INFLUENCE OR PRESTIGE THAT WILL GIVE
RELEASE ON PERSONAL RECOGNIZANCE EMPHASIZES THE INVIDIOUS
DISCRIMINATION AT WORK IN SEC. 230(3). 

/1/  THE STATUTORY SCHEME OF SEC. 230 WAS REPLACED ON SEPTEMBER 1,
1967, BY SECS. 803 AND 805 OF THE CORRECTION LAW AND SECS. 70.30 AND
70.40 OF THE NEW PENAL LAW, WHICH SECTIONS APPLY TO ALL CONVICTIONS FOR
OFFENSES COMMITTED ON OR AFTER THAT DATE (BUT NOT TO CONVICTIONS-- AS
OF APPELLEES-- FOR OFFENSES COMMITTED PRIOR TO THE EFFECTIVE DATE). 
THE CHALLENGED STATUTE, SEC. 230(3) OF THE CORRECTION LAW, NOW APPLIES
ONLY TO THOSE PRISONERS WHO WERE CONVICTED FOR OFFENSES COMMITTED
BEFORE SEPTEMBER 1, 1967, WHOSE MINIMUM TERMS HAVE NOT YET EXPIRED, WHO
HAVE NOT YET MET WITH THE PAROLE BOARD, AND WHO HAVE NOT YET ELECTED
THE "CONDITIONAL RELEASE" PROGRAM OFFERED BY THE NEW LAW AND MADE
AVAILABLE TO OLD LAW PRISONERS BY SEC. 230-A OF THE CORRECTION LAW.  OF
THESE PRISONERS, A SMALLER CLASS YET-- COMPOSED OF THOSE INMATES WHO
SERVED TIME IN COUNTY JAIL PRIOR TO SENTENCE TO STATE PRISON-- ACTUALLY
FEEL THE EFFECT OF THE SEC. 230(3) PROSCRIPTION AGAINST GOOD-TIME
CREDIT FOR JAIL TIME.  NEVERTHELESS, THE MANDATE OF SEC. 230(3) AFFECTS
A SUBSTANTIAL NUMBER OF INDIVIDUALS.  SEE 332 F.SUPP.  973, 975 N. 4. 

/2/  THE COURT IN PEOPLE V. DEEGAN, 56 MISC.2D 567, 289 N.Y.S.2D
285, IN REFUSING TO INFER THAT SEC. 230(4) MUST EXCLUDE JAIL TIME SINCE
SEC. 230(3) DOES SO, EXPLICITLY SAID:  "ADOPTION OF THE RESPONDENT'S
INTERPRETATION WOULD HAVE THE EFFECT OF PREJUDICING A DEFENDANT WHO WAS
UNABLE TO RAISE FUNDS IN ORDER TO BE RELEASED ON BAIL, AND WOULD
DEPRIVE HIM OF 'EQUAL PROTECTION OF THE LAWS' IN VIOLATION OF THE 14TH
AMENDMENT OF THE UNITED STATES CONSTITUTION.  FOR EXAMPLE, A DEFENDANT
WHO WAS AT LIBERTY ON BAIL PRIOR TO JUDGMENT, AND RECEIVED A SIMILAR
SENTENCE, WOULD BE SUBJECT TO A MAXIMUM OF 16 MONTHS, AS OPPOSED TO 18
MONTHS FOR PETITIONER WHO COULD NOT AFFORD BAIL AND WHO LANGUISHED IN
JAIL AWAITING SENTENCE.  IF THERE IS LOGIC OR JUSTICE IN THIS ANOMALY
IT ESCAPES THE COURT."  ID., AT 568, 238 N.Y.S.2D, AT 287. 

/3/  THIS LOSS IS REAL, FOR "(WHAT HE IS LOSING . . . IS THE
POSSIBILITY THAT IF HE APPEARED BEFORE THE BOARD HE MIGHT PERSUADE IT
TO DECIDE IN HIS FAVOR.  OF COURSE THIS LOSS, IN PRACTICAL, HUMAN,
TERMS IS SERIOUS AND INVOLVES A CHANCE FOR AT LEAST QUALIFIED
LIBERTY."  UNITED STATES EX REL. CAMPBELL V. PATE, 401 F.2D 55, 57. 

/4/  THE VERA FOUNDATION IN ITS REPORT, THE MANHATTAN BAIL PROJECT,
OBSERVED THAT "BAIL IS GENERALLY A DOOR TO PRE-TRIAL LIBERTY FOR THE
RICH, TO PRE-TRIAL DETENTION FOR THE POOR."  FOR THE LATTER, IT NOTES,
"POVERTY IS, IN FACT, A PUNISHABLE OFFENSE."  EVEN THOSE WITH MONEY MAY
NOT BE ABLE TO PURCHASE A BAIL BOND (ID., AT 3).  "THE BONDSMAN IS
RESPONSIBLE TO NO ONE AND SUBJECT TO NO REVIEW.  HE CAN REFUSE TO WRITE
A BAIL BOND WHENEVER HE CHOOSES-- BECAUSE HE 'MISTRUSTS' A DEFENDANT,
BECAUSE HE DISLIKES MEMBERS OF A GIVEN MINORITY GROUP, OR BECAUSE HE
GOT UP ON THE WRONG SIDE OF THE BED.  A BAIL BONDSMAN IS NOT OBLIGED TO
HAVE VALID OR SENSIBLE REASONS."  ID., AT 4. 

THE VERA FOUNDATION HAS A STAFF THAT WORKS WITH THE MAGISTRATE TO
SEE WHICH OF THOSE ARRESTED MAY PROPERLY BE RELEASED ON THEIR PERSONAL
RECOGNIZANCE. 

"DURING THE PROJECT'S FIRST 30 MONTHS IN THE MANHATTAN COURTS, 2300
DEFENDANTS WERE RELEASED ON THEIR OWN RECOGNIZANCE UPON THE
RECOMMENDATION OF VERA STAFF MEMBERS. 

"NINETY-NINE PER CENT OF THESE DEFENDANTS RETURNED TO COURT WHEN
REQUIRED; ONLY ONE PER CENT FAILED TO APPEAR. 

"DURING THIS SAME PERIOD, ABOUT THREE PER CENT OF THOSE FREED ON
BAIL FAILED TO APPEAR IN COURT.  THUS, IT APPEARS THAT VERIFIED
INFORMATION ABOUT A DEFENDANT'S BACKGROUND IS A MORE RELIABLE CRITERION
ON WHICH TO RELEASE A DEFENDANT THAN IS HIS ABILITY TO PURCHASE A BAIL
BOND."  ID., AT 7. 

MICHAEL COLODNER, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, AND SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL. 

G. JEFFERY SORGE ARGUED THE CAUSE FOR APPELLEES PRO HAC VICE.  WITH
HIM ON THE BRIEF WERE JAMES J. MCDONOUGH AND MATTHEW MURASKIN BY
APPOINTMENT OF THE COURT, 406 U.S. 955. 
..END :













CHAMBERS V. MISSISSIPPI, 410 U.S. 284 


       CHAMBERS V. MISSISSIPPI

        CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

        NO. 71-5908.  ARGUED NOVEMBER 15, 1972-- DECIDED FEBRUARY

           21, 1973 


AFTER PETITIONER WAS ARRESTED FOR MURDER, ANOTHER PERSON (MCDONALD)
MADE, BUT LATER REPUDIATED A WRITTEN CONFESSION.  ON THREE SEPARATE
OCCASIONS, EACH TIME TO A DIFFERENT FRIEND, MCDONALD ORALLY ADMITTED
THE KILLING.  PETITIONER WAS CONVICTED OF THE MURDER IN A TRIAL THAT HE
CLAIMED WAS LACKING IN DUE PROCESS BECAUSE PETITIONER WAS NOT ALLOWED
TO (1) CROSS-EXAMINE MCDONALD (WHOM PETITIONER HAD CALLED AS A WITNESS
WHEN THE STATE FAILED TO DO SO), SINCE UNDER MISSISSIPPI'S COMMON-LAW
"VOUCHER" RULE A PARTY MAY NOT IMPEACH HIS OWN WITNESS, OR (2)
INTRODUCE THE TESTIMONY OF THE THREE PERSONS TO WHOM MCDONALD HAD
CONFESSED, THE TRIAL COURT HAVING RULED THEIR TESTIMONY INADMISSIBLE AS
HEARSAY.  THE MISSISSIPPI SUPREME COURT AFFIRMED.  HELD:  UNDER THE
FACTS AND CIRCUMSTANCES OF THIS CASE, PETITIONER WAS DENIED A FAIR
TRIAL, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 294-303. 

(A) THE APPLICATION OF THE "VOUCHER" RULE PREVENTED PETITIONER,
THROUGH CROSS-EXAMINATION OF MCDONALD, FROM EXPLORING THE CIRCUMSTANCES
OF MCDONALD'S THREE PRIOR ORAL CONFESSIONS AND CHALLENGING HIS
RENUNCIATION OF THE WRITTEN CONFESSION, AND THUS DEPRIVED PETITIONER OF
THE RIGHT TO CONTRADICT TESTIMONY THAT WAS CLEARLY "ADVERSE."  PP. 295
298. 

(B) THE TRIAL COURT ERRED IN EXCLUDING MCDONLAD'S HEARSAY
STATEMENTS, WHICH WERE CRITICAL TO PETITIONER'S DEFENSE AND WHICH BORE
SUBSTANTIAL ASSURANCES OF TRUSTWORTHINESS, INCLUDING THAT EACH WAS MADE
SPONTANEOUSLY TO A CLOSE ACQUAINTANCE, THAT EACH WAS CORROBORATED BY
OTHER EVIDENCE IN THE CASE, THAT EACH WAS IN A REAL SENSE AGAINST
MCDONALD'S INTEREST, AND THAT MCDONALD WAS PRESENT AND AVAILABLE FOR
CROSS-EXAMINATION BY THE STATE.  PP. 298-303. 

252 SO.2D, REVERSED AND REMANDED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  WHITE, J., FILED A CONCURRING OPINION, POST, P. 303. 
REHNQUIST, J., FILED A DISSENTING OPINION, POST, P. 308. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

PETITIONER, LEON CHAMBERS, WAS TRIED BY A JURY IN A MISSISSIPPI TRIAL
COURT AND CONVICTED OF MURDERING A POLICEMAN.  THE JURY ASSESSED
PUNISHMENT AT LIFE IMPRISONMENT, AND THE MISSISSIPPI SUPREME COURT
AFFIRMED, ONE JUSTICE DISSENTING.  252 SO.2D 217(1971).  PENDING
DISPOSITION OF HIS APPLICATION FOR CERTIORARI TO THIS COURT, PETITIONER
WAS GRANTED BAIL BY ORDER OF THE CIRCUIT JUSTICE, DATED FEBRUARY 1,
1972.  TWO WEEKS LATER, ON THE STATE'S REQUEST FOR RECONSIDERATION,
THAT ORDER WAS REAFFIRMED.  405 U.S. 987(1972), TO CONSIDER WHETHER
PETITIONER'S TRIAL WAS CONDUCTED IN ACCORD WITH PRINCIPLES OF DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT.  WE CONCLUDE THAT IT WAS NOT. 

I 

THE EVENTS THAT LED TO PETITIONER'S PROSECUTION FOR MURDER OCCURRED
IN THE SMALL TOWN OF WOODVILLE IN SOUTHERN MISSISSIPPI.  ON SATURDAY
EVENING, JUNE 14, 1969, TWO WOODVILLE POLICEMEN, JAMES FORMAN AND AARON
"SONNY" LIBERTY, ENTERED A LOCAL BAR AND POOL HALL TO EXECUTE A WARRANT
FOR THE ARREST OF A YOUTH NAMED C. C. JACKSON.  JACKSON RESISTED AND A
HOSTILE CROWD OF SOME 50 TO 60 PERSONS GATHERED.  THE OFFICERS' FIRST
ATTEMPT TO HANDCUFF JACKSON WAS FRUSTRATED WHEN 20 OR 25 MEN IN THE
CROWD INTERVENED AND WRESTLED HIM FREE.  FORMAN THEN RADIOED FOR
ASSISTANCE AND LIBERTY REMOVED HIS RIOT GUN, A 12-GUAGE SAWED-OFF
SHOTGUN, FROM THE CAR.  THREE DEPUTY SHERIFFS ARRIVED SHORTLY
THEREAFTER AND THE OFFICERS AGAIN ATTEMPTED TO MAKE THEIR ARREST.  ONCE
MORE, THE OFFICERS WERE ATTACKED BY THE ONLOOKERS AND DURING THE
COMMOTION FIVE OR SIX PISTOL SHOTS WERE FIRED.  FORMAN WAS LOOKING IN A
DIFFERENT DIRECTION WHEN THE SHOOTING BEGAN, BUT IMMEDIATELY SAW THAT
LIBERTY HAD BEEN SHOT SEVERAL TIMES IN THE BACK.  BEFORE LIBERTY DIED,
HE TURNED AROUND AND FIRED BOTH BARRELS OF HIS RIOT GUN INTO AN ALLEY
IN THE AREA FROM WHICH THE SHOTS APPEARED TO HAVE COME.  THE FIRST SHOT
WAS WILD AND HIGH AND SCATTERED THE CROWD STANDING AT THE FACE OF THE
ALLEY.  LIBERTY APPEARED, HOWEVER, TO TAKE MORE DELIBERATE AIM BEFORE
THE SECOND SHOT AND HIT ONE OF THE MEN IN THE CROWD IN THE BACK OF THE
HEAD AND NECK AS HE RAN DOWN THE ALLEY.  THAT MAN WAS LEON CHAMBERS. 

OFFICER FORMAN COULD NOT SEE FROM HIS VANTAGE POINT WHO SHOT LIBERTY
OR WHETHER LIBERTY'S SHOTS HIT ANYONE.  ONE OF THE DEPUTY SHERIFFS
TESTIFIED AT TRIAL THAT HE WAS STANDING SEVERAL FEET FROM LIBERTY AND
THAT HE SAW CHAMBERS SHOOT HIM.  ANOTHER DEPUTY SHERIFF STATED THAT,
ALTHOUGH HE COULD NOT SEE WHETHER CHAMBERS HAD A GUN IN HIS HAND, HE
DID SEE CHAMBERS "BREAK HIS ARM DOWN" SHORTLY BEFORE THE SHOTS WERE
FIRED.  THE OFFICERS WHO SAW CHAMBERS FALL TESTIFIED THAT THEY THOUGHT
HE WAS DEAD BUT THEY MADE NO EFFORT AT THAT TIME EITHER TO EXAMINE HIM
OR TO SEARCH FOR THE MURDER WEAPON.  INSTEAD, THEY ATTENDED TO LIBERTY,
WHO WAS PLACED IN THE POLICE CAR AND TAKEN TO A HOSPITAL WHERE HE WAS
DECLARED DEAD ON ARRIVAL.  A SUBSEQUENT AUTOPSY SHOWED THAT HE HAD BEEN
HIT WITH FOUR BULLETS FROM A .22-CALIBER REVOLVER. 

SHORTLY AFTER THE SHOOTING, THREE OF CHAMBERS' FRIENDS DISCOVERED
THAT HE WAS NOT YET DEAD.  JAMES WILLIAMS, /1/  BERKLEY TURNER, AND
GABLE MCDONALD LOADED HIM INTO A CAR AND TRANSPORTED HIM TO THE SAME
HOSPITAL.  LATER THAT NIGHT, WHEN THE COUNTY SHERIFF DISCOVERED THAT
CHAMBERS WAS STILL ALIVE, A GUARD WAS PLACED OUTSIDE HIS ROOM. 
CHAMBERS WAS SUBSEQUENTLY CHARGED WITH LIBERTY'S MURDER.  HE PLEADED
NOT GUILTY AND HAS ASSERTED HIS INNOCENCE THROUGHOUT. 

THE STORY OF LEON CHAMBERS IS INTERTWINED WITH THE STORY OF ANOTHER
MAN, GABLE MCDONALD.  MCDONALD, A LIFELONG RESIDENT OF WOODVILLE, WAS
IN THE CROWD ON THE EVENING OF LIBERTY'S DEATH.  SOMETIME SHORTLY AFTER
THAT DAY, HE LEFT HIS WIFE IN WOODVILLE AND MOVED TO LOUISIANA AND
FOUND A JOB AT A SUGAR MILL.  IN NOVEMBER OF THAT SAME YEAR, HE
RETURNED TO WOODVILLE WHEN HIS WIFE INFORMED HIM THAT AN ACQUAINTANCE
OF HIS, KNOWN AS REVEREND STOKES, WANTED TO SEE HIM.  STOKES OWNED A
GAS STATION IN NATCHEZ, MISSISSIPPI, SEVERAL MILES NORTH OF WOODVILLE,
AND UPON HIS RETURN MCDONALD WENT TO SEE HIM.  AFTER TALKING TO STOKES,
MCDONALD AGREED TO MAKE A STATEMENT TO CHAMBERS' ATTORNEYS, WHO
MAINTAINED OFFICES IN NATCHEZ.  TWO DAYS LATER, HE APPEARED AT THE
ATTORNEYS' OFFICES AND GAVE A SWORN CONFESSION THAT HE SHOT OFFICER
LIBERTY.  HE ALSO STATED THAT HE HAD ALREADY TOLD A FRIEND OF HIS,
JAMES WILLIAMS, THAT HE SHOT LIBERTY.  HE SAID THAT HE USED HIS OWN
PISTOL, A NINE-SHOT .22-CALIBER REVOLVER, WHICH HE HAD DISCARDED
SHORTLY AFTER THE SHOOTING.  IN RESPONSE TO QUESTIONS FROM CHAMBERS'
ATTORNEYS, MCDONALD AFFIRMED THAT HIS CONFESSION WAS VOLUNTARY AND THAT
NO ONE HAD COMPELLED HIM TO COME TO THEM.  ONCE THE CONFESSION HAD BEEN
TRANSCRIBED, SIGNED, AND WITNESSED, MCDONALD WAS TURNED OVER TO THE
LOCAL POLICE AUTHORITIES AND WAS PLACED IN JAIL. 

ONE MONTH LATER, AT A PRELIMINARY HEARING, MCDONALD REPUDIATED HIS
SWORN CONFESSION.  HE TESTIFIED THAT STOKES HAD PERSUADED HIM TO
CONFESS THAT HE SHOT LIBERTY.  HE CLAIMED THAT STOKES HAD PROMISED THAT
HE WOULD NOT GO TO JAIL AND THAT HE WOULD SHARE IN THE PROCEEDS OF A
LAWSUIT THAT CHAMBERS WOULD BRING AGAINST THE TOWN OF WOODVILLE.  ON
EXAMINATION BY HIS OWN ATTORNEY AND ON CROSS-EXAMINATION BY THE STATE,
MCDONALD SWORE THAT HE HAD NOT BEEN AT THE SCENE WHEN LIBERTY WAS SHOT
BUT HAD BEEN DOWN THE STREET DRINKING BEER IN A CAFE WITH A FRIEND,
BERKLEY TURNER.  WHEN HE AND TURNER HEARD THE SHOOTING, HE TESTIFIED,
THEY WALKED UP THE STREET AND FOUND CHAMBERS LYING IN THE ALLEY.  HE,
TURNER, AND WILLIAMS TOOK CHAMBERS TO THE HOSPITAL.  MCDONALD FURTHER
TESTIFIED AT THE PRELIMINARY HEARING THAT HE DID NOT KNOW WHAT HAD
HAPPENED, THAT THERE WAS NO DISCUSSION ABOUT THE SHOOTING EITHER GOING
TO OR COMING BACK FROM THE HOSPITAL, AND THAT IT WAS NOT UNTIL THE NEXT
DAY THAT HE LEARNED THAT CHAMBERS HAD BEEN FELLED BY A BLAST FROM
LIBERTY'S RIOT GUN.  IN ADDITION, MCDONALD STATED THAT WHILE HE ONCE
OWNED A .22-CALIBER PISTOL HE HAD LOST IT MANY MONTHS BEFORE THE
SHOOTING AND DID NOT OWN OR POSSESS A WEAPON AT THAT TIME.  THE LOCAL
JUSTICE OF THE PEACE ACCEPTED MCDONALD'S REPUDIATION AND RELEASED HIM
FROM CUSTODY.  THE LOCAL AUTHORITIES UNDERTOOK NO FURTHER INVESTIGATION
OF HIS POSSIBLE INVOLVEMENT. 

CHAMBERS' CASE CAME ON FOR TRIAL IN OCTOBER OF THE NEXT YEAR.  /2/
AT TRIAL, HE ENDEAVORED TO DEVELOP TWO GROUNDS OF DEFENSE.  HE FIRST
ATTEMPTED TO SHOW THAT HE DID NOT SHOOT LIBERTY.  ONLY ONE OFFICER
TESTIFIED THAT HE ACTUALLY SAW CHAMBERS FIRE THE SHOTS.  ALTHOUGH THREE
OFFICERS SAW LIBERTY SHOOT CHAMBERS AND TESTIFIED THAT THEY ASSUMED HE
WAS SHOOTING HIS ATTACKER, NONE OF THEM EXAMINED CHAMBERS TO SEE
WHETHER HE WAS STILL ALIVE OR WHETHER HE POSSESSED A GUN.  INDEED, NO
WEAPON WAS EVER RECOVERED FROM THE SCENE AND THERE WAS NO PROOF THAT
CHAMBERS HAD EVER OWNED A .22-CALIBER PISTOL.  ONE WITNESS TESTIFIED
THAT HE WAS STANDING IN THE STREET NEAR WHERE LIBERTY WAS SHOT, THAT HE
WAS LOOKING AT CHAMBERS WHEN THE SHOOTING BEGAN, AND THAT HE WAS SURE
THAT CHAMBERS DID NOT FIRE THE SHOTS. 

PETITIONER'S SECOND DEFENSE WAS THAT GABLE MCDONALD HAD SHOT OFFICER
LIBERTY.  HE WAS ONLY PARTIALLY SUCCESSFUL, HOWEVER, IN HIS EFFORTS TO
BRING BEFORE THE JURY THE TESTIMONY SUPPORTING THIS DEFENSE.  SAM
HARDIN, A LIFELONG FRIEND OF MCDONALD'S TESTIFIED THAT HE SAW MCDONALD
SHOOT LIBERTY.  A SECOND WITNESS, ONE OF LIBERTY'S COUSIN, TESTIFIED
THAT HE SAW MCDONALD IMMEDIATELY AFTER THE SHOOTING WITH A PISTOL IN
HIS HAND.  IN ADDITION TO THE TESTIMONY OF THESE TWO WITNESSES,
CHAMBERS ENDEAVORED TO SHOW THE JURY THAT MCDONALD HAD REPEATEDLY
CONFESSED TO THE CRIME.  CHAMBERS ATTEMPTED TO PROVE THAT MCDONALD HAD
ADMITTED RESPONSIBILITY FOR THE MURDER ON FOUR SEPARATE OCCASIONS, ONCE
WHEN HE GAVE THE SWORN STATEMENT TO CHAMBERS' COUNSEL AND THREE OTHER
TIMES PRIOR TO THAT OCCASION IN PRIVATE CONVERSATIONS WITH FRIENDS. 

IN LARGE MEASURE, HE WAS THWARTED IN HIS ATTEMPT TO PRESENT THIS
PORTION OF HIS DEFENSE BY THE STRICT APPLICATION OF CERTAIN MISSISSIPPI
RULES OF EVIDENCE.  CHAMBERS ASSERTS IN THIS COURT, AS HE DID
UNSUCCESSFULLY IN HIS MOTION FOR A NEW TRIAL AND ON APPEAL TO THE STATE
SUPREME COURT, THAT THE APPLICATION OF THESE EVIDENTIARY RULES RENDERED
HIS TRIAL FUNDAMENTALLY UNFAIR AND DEPRIVED HIM OF DUE PROCESS OF LAW. 
/3/  IT IS NECESSARY, THEREFORE, TO EXAMINE CAREFULLY THE RULINGS MADE
DURING THE TRIAL. 

        II 

CHAMBERS FILED A PRETRIAL MOTION REQUESTING THE COURT TO ORDER
MCDONALD TO APPEAR.  CHAMBERS ALSO SOUGHT A RULING AT THAT TIME THAT,
IF THE STATE ITSELF CHOSE NOT TO CALL MCDONALD, HE BE ALLOWED TO CALL
HIM AS AN ADVERSE WITNESS.  ATTACHED TO THE MOTION WERE COPIES OF
MCDONALD'S SWORN CONFESSION AND OF THE TRANSCRIPT OF HIS PRELIMINARY
HEARING AT WHICH HE REPUDIATED THAT CONFESSION.  THE TRIAL COURT
GRANTED THE MOTION REQUIRING MCDONALD TO APPEAR BUT RESERVED RULING ON
THE ADVERSE-WITNESS MOTION.  AT TRIAL, AFTER THE STATE FAILED TO PUT
MCDONALD ON THE STAND, CHAMBERS CALLED MCDONALD, LAID A PREDICATE FOR
THE INTRODUCTION OF HIS SWORN OUT-OF-COURT CONFESSION, HAD IT ADMITTED
INTO EVIDENCE, AND READ IT TO THE JURY.  THE STATE, UPON CROSS
EXAMINATION, ELICITED FROM MCDONALD THE FACT THAT HE HAD REPUDIATED HIS
PRIOR CONFESSION.  MCDONALD FURTHER TESTIFIED, AS HE HAD AT THE
PRELIMINARY HEARING, THAT HE DID NOT SHOOT LIBERTY, AND THAT HE
CONFESSED TO THE CRIME ONLY ON THE PROMISE OF REVEREND STOKES THAT HE
WOULD NOT GO TO JAIL AND WOULD SHARE IN A SIZABLE TORT RECOVERY FROM
THE TOWN.  HE ALSO RETOLD HIS OWN STORY OF HIS ACTIONS ON THE EVENING
OF THE SHOOTING, INCLUDING HIS VISIT TO THE CAFE DOWN THE STREET, HIS
ABSENCE FROM THE SCENE DURING THE CRITICAL PERIOD, AND HIS SUBSEQUENT
TRIP TO THE HOSPITAL WITH CHAMBERS. 

AT THE CONCLUSION OF THE STATE'S CROSS-EXAMINATION, CHAMBERS RENEWED
HIS MOTION TO EXAMINE MCDONALD AS AN ADVERSE WITNESS.  THE TRIAL COURT
DENIED THE MOTION, STATING:  "HE MAY BE HOSTILE, BUT HE IS NOT ADVERSE
IN THE SENSE OF THE WORD, SO YOUR REQUEST WILL BE OVERRULED."  ON
APPEAL, THE STATE SUPREME COURT UPHELD THE TRIAL COURT'S RULING,
FINDING THAT "MCDONALD'S TESTIMONY WAS NOT ADVERSE TO APPELLANT"
BECAUSE "(NOWHERE DID HE POINT THE FINGER AT CHAMBERS."  252 SO.2D, AT
220. 

DEFEATED IN HIS ATTEMPT TO CHALLENGE DIRECTLY MCDONALD'S
RENUNCIATION OF HIS PRIOR CONFESSION, CHAMBERS SOUGHT TO INTRODUCE THE
TESTIMONY OF THE THREE WITNESSES TO WHOM MCDONALD HAD ADMITTED THAT HE
SHOT THE OFFICER.  THE FIRST OF THESE, SAM HARDIN, WOULD HAVE TESTIFIED
THAT, ON THE NIGHT OF THE SHOOTING, HE SPENT THE LATE EVENING HOURS
WITH MCDONALD AT A FRIEND'S HOUSE AFTER THEIR RETURN FROM THE HOSPITAL
AND THAT, WHILE DRIVING MCDONALD HOME LATER THAT NIGHT, MCDONALD STATED
THAT HE SHOT LIBERTY.  THE STATE OBJECTED TO THE ADMISSION OF THIS
TESTIMONY ON THE GROUND THAT IT WAS HEARSAY.  THE TRIAL COURT SUSTAINED
THE OBJECTION.  /4/ 

BERKLEY TURNER, THE FRIEND WITH WHOM MCDONALD SAID HE WAS DRINKING
BEER WHEN THE SHOOTING OCCURRED, WAS THEN CALLED TO TESTIFY.  IN THE
JURY'S PRESENCE, AND WITHOUT OBJECTION, HE TESTIFIED THAT HE HAD NOT
BEEN IN THE CAFE THAT SATURDAY AND HAD NOT HAD ANY BEERS WITH
MCDONALD.  THE JURY WAS THEN EXCUSED.  IN THE ABSENCE OF THE JURY,
TURNER RECOUNTED HIS CONVERSATIONS WITH MCDONALD WHILE THEY WERE RIDING
WITH JAMES WILLIAMS TO TAKE CHAMBERS TO THE HOSPITAL.  WHEN ASKED
WHETHER MCDONALD SAID ANYTHING REGARDING THE SHOOTING OF LIBERTY,
TURNER TESTIFIED THAT MCDONALD TOLD HIM THAT HE "SHOT HIM."  TURNER
FURTHER STATED THAT ONE WEEK LATER, WHEN HE MET MCDONALD AT A FRIEND'S
HOUSE, MCDONALD REMINDED HIM OF THEIR PRIOR CONVERSATION AND URGED
TURNER NOT TO "MESS HIM UP."  PETITIONER ARGUED TO THE COURT THAT,
ESPECIALLY WHERE THERE WAS OTHER PROOF IN THE CASE THAT WAS
CORROBORATIVE OF THESE OUT-OF-COURT STATEMENTS, TURNER'S TESTIMONY AS
TO MCDONALDS SELF-INCRIMINATING REMARKS SHOULD HAVE BEEN ADMITTED AS AN
EXCEPTION TO THE HEARSAY RULE.  AGAIN, THE TRIAL COURT SUSTAINED THE
STATE'S OBJECTION. 

THE THIRD WITNESS, ALBERT CARTER, WAS MCDONALD'S NEIGHBOR.  THEY HAD
BEEN FRIENDS FOR ABOUT 25 YEARS.  ALTHOUGH CARTER HAD NOT BEEN IN
WOODVILLE ON THE EVENING OF THE SHOOTING, HE STATED THAT HE LEARNED
ABOUT IT THE NEXT MORNING FROM MCDONALD.  THAT SAME DAY, HE AND
MCDONALD WALKED OUT TO A WELL NEAR MCDONALD'S HOUSE AND THERE MCDONALD
TOLD HIM THAT HE WAS THE ONE WHO SHOT OFFICER LIBERTY.  CARTER
TESTIFIED THAT MCDONALD ALSO TOLD HIM THAT HE HAD DISPOSED OF THE .22
CALIBER REVOLVER LATER THAT NIGHT.  HE FURTHER TESTIFIED THAT SEVERAL
WEEKS AFTER THE SHOOTING, HE ACCOMPANIED MCDONALD TO NATCHEZ WHERE
MCDONALD PURCHASED ANOTHER .22 PISTOL TO REPLACE THE ONE HE HAD
DISCARDED.  /5/  THE JURY WAS NOT ALLOWED TO HEAR CARTER'S TESTIMONY. 
CHAMBERS URGED THAT THESE STATEMENTS WERE ADMISSIBLE, THE STATE
OBJECTED, AND THE COURT SUSTAINED THE OBJECTION.  /6/  ON APPEAL, THE
STATE SUPREME COURT APPROVED THE LOWER COURT'S EXCLUSION OF THESE
WITNESSES' TESTIMONY ON HEARSAY GROUNDS.  252 SO.2D, AT 220.     IN
SUM, THEN, THIS WAS CHAMBERS' PREDICAMENT.  AS A CONSEQUENCE OF THE
COMBINATION OF MISSISSIPPI'S "PARTY WITNESS" OR "VOUCHER" RULE AND ITS
HEARSAY RULE, HE WAS UNABLE EITHER TO CROSS-EXAMINE MCDONALD OR TO
PRESENT WITNESSES IN HIS OWN BEHALF WHO WOULD HAVE DISCREDITED
MCDONALD'S REPUDIATION AND DEMONSTRATED HIS COMPLICITY.  CHAMBERS HAD,
HOWEVER, CHIPPED AWAY AT THE FRINGES OF MCDONALD'S STORY BY INTRODUCING
ADMISSIBLE TESTIMONY FROM OTHER SOURCES INDICATING THAT HE HAD NOT BEEN
SEEN IN THE CAFE WHERE HE SAID HE WAS WHEN THE SHOOTING STARTED, THAT
HE HAD NOT BEEN HAVING BEER WITH TURNER, AND THAT HE POSSESSED A .22
PISTOL AT THE TIME OF THE CRIME.  BUT ALL THAT REMAINED FROM MCDONALD'S
OWN TESTIMONY WAS A SINGLE WRITTEN CONFESSION COUNTERED BY AN ARGUABLY
ACCEPTABLE RENUNCIATION.  CHAMBERS' DEFENSE WAS FAR LESS PERSUASIVE
THAN IT MIGHT HAVE BEEN HAD HE BEEN GIVEN AN OPPORTUNITY TO SUBJECT
MCDONALD'S STATEMENTS TO CROSS-EXAMINATION OR HAD THE OTHER CONFESSIONS
BEEN ADMITTED. 

III 

THE RIGHT OF AN ACCUSED IN A CRIMINAL TRIAL TO DUE PROCESS IS, IN
ESSENCE, THE RIGHT TO A FAIR OPPORTUNITY TO DEFEND AGAINST THE STATE'S
ACCUSATIONS.  THE RIGHTS TO CONFRONT AND CROSS-EXAMINE WITNESSES AND TO
CALL WITNESSES IN ONE'S OWN BEHALF HAVE LONG BEEN RECOGNIZED AS
ESSENTIAL TO DUE PROCESS.  MR. JUSTICE BLACK, WRITING FOR THE COURT IN
IN RE OLIVER, 333 U.S. 257, 273(1948), IDENTIFIED THESE RIGHTS AS AMONG
THE MINIMUM ESSENTIALS OF A FAIR TRIAL: 

"A PERSON'S RIGHT TO REASONABLE NOTICE OF A CHARGE AGAINST HIM, AND
AN OPPORTUNITY TO BE HEARD IN HIS DEFENSE-- A RIGHT TO HIS DAY IN COURT
- ARE BASIC IN OUR SYSTEM OF JURISPRUDENCE; AND THESE RIGHTS INCLUDE,
AS A MINIMUM, A RIGHT TO EXAMINE THE WITNESSES AGAINST HIM, TO OFFER
TESTIMONY, AND TO BE REPRESENTED BY COUNSEL." 

SEE ALSO MORRISSEY V. BREWER, 408 U.S. 471, 488-489(1972); JENKINS
V. MCKEITHEN, 395 U.S. 411, 428-429(1969); SPECHT V. PATTERSON, 386
U.S. 605, 610(1967).  BOTH OF THESE ELEMENTS OF A FAIR TRIAL ARE
IMPLICATED IN THE PRESENT CASE. 

        A 

CHAMBERS WAS DENIED AN OPPORTUNITY TO SUBJECT MCDONALD'S DAMNING
REPUDIATION AND ALIBI TO CROSS-EXAMINATION.  HE WAS NOT ALLOWED TO TEST
THE WITNESS' RECOLLECTION, TO PROBE INTO THE DETAILS OF HIS ALIBI, OR
TO "SIFT" HIS CONSCIENCE SO THAT THE JURY MIGHT JUDGE FOR ITSELF
WHETHER MCDONALD'S TESTIMONY WAS WORTHY OF BELIEF.  MATTOX V. UNITED
STATES, 156 U.S. 237, 242-243(1895).  THE RIGHT OF CROSS-EXAMINATION IS
MORE THAN A DESIRABLE RULE OF TRIAL PROCEDURE.  IT IS IMPLICIT IN THE
CONSTITUTIONAL RIGHT OF CONFRONTATION, AND HELPS ASSURE THE "ACCURACY
OF THE TRUTH-DETERMINING PROCESS."  DUTTON V. EVANS, 400 U.S. 74,
89(1970); BRUTON V. UNITED STATES, 391 U.S. 123, 135-137(1968).  IT IS,
INDEED, "AN ESSENTIAL AND FUNDAMENTAL REQUIREMENT FOR THE KIND OF FAIR
TRIAL WHICH IS THIS COUNTRY'S CONSTITUTIONAL GOAL."  POINTER V. TEXAS,
380 U.S. 400, 405(1965).  OF COURSE, THE RIGHT TO CONFRONT AND TO CROSS
EXAMINE IS NOT ABSOLUTE AND MAY, IN APPROPRIATE CASES, BOW TO
ACCOMMODATE OTHER LEGITIMATE INTERESTS IN THE CRIMINAL TRIAL PROCESS. 
E.G., MANCUSI V. STUBBS, 408 U.S. 204(1972).  BUT ITS DENIAL OR
SIGNIFICANT DIMINUTION CALLS INTO QUESTION THE ULTIMATE "'INTEGRITY OF
THE FACT-FINDING PROCESS'" AND REQUIRES THAT THE COMPETING INTEREST BE
CLOSELY EXAMINED.  BERGER V. CALIFORNIA, 393 U.S. 314, 315(1969). 

IN THIS CASE, PETITIONER'S REQUEST TO CROSS-EXAMINE MCDONALD WAS
DENIED ON THE BASIS OF A MISSISSIPPI COMMON-LAW RULE THAT A PARTY MAY
NOT IMPEACH HIS OWN WITNESS.  THE RULE RESTS ON THE PRESUMPTION--
WITHOUT REGARD TO THE CIRCUMSTANCES OF THE PARTICULAR CASE-- THAT A
PARTY WHO CALLS A WITNESS "VOUCHES FOR HIS CREDIBILITY."  CLARK V.
LANSFORD, 191 SO.2D 123, 125 (MISS.  1966).  ALTHOUGH THE HISTORICAL
ORIGINS OF THE "VOUCHER" RULE ARE UNCERTAIN, IT APPEARS TO BE A REMNANT
OF PRIMITIVE ENGLISH TRIAL PRACTICE IN WHICH "OATH-TAKERS" OR
"COMPURGATORS" WERE CALLED TO STAND BEHIND A PARTICULAR PARTY'S
POSITION IN ANY CONTROVERSY.  THEIR ASSERTIONS WERE STRICTLY PARTISAN
AND, QUITE UNLIKE WITNESSES IN CRIMINAL TRIALS TODAY, THEIR RULE BORE
LITTLE RELATION TO THE IMPARTIAL ASCERTAINMENT OF THE FACTS.  /7/ 

WHATEVER VALIDITY THE "VOUCHER" RULE MAY HAVE ONCE ENJOYED, AND
APART FROM WHATEVER USEFULNESS IT RETAINS TODAY IN THE CIVIL TRIAL
PROCESS, IT BEARS LITTLE PRESENT RELATIONSHIP TO THE REALITIES OF THE
CRIMINAL PROCESS.  /8/  IT MIGHT HAVE BEEN LOGICAL FOR THE EARLY COMMON
LAW TO REQUIRE A PARTY TO VOUCH FOR THE CREDIBILITY OF WITNESSES HE
BROUGHT BEFORE THE JURY TO AFFIRM HIS VERACITY.  HAVING SELECTED THEM
ESPECIALLY FOR THAT PURPOSE, THE PARTY MIGHT REASONABLY BE EXPECTED TO
STAND FIRMLY BEHIND THEIR TESTIMONY.  BUT IN MODERN CRIMINAL TRIALS,
DEFENDANTS ARE RARELY ABLE TO SELECT THEIR WITNESSES:  THEY MUST TAKE
THEM WHERE THEY FIND THEM.  MOREOVER, AS APPLIED IN THIS CASE, THE
"VOUCHER" RULE'S /9/  IMPACT WAS DOUBLY HARMFUL TO CHAMBERS' EFFORTS TO
DEVELOP HIS DEFENSE.  NOT ONLY WAS HE PRECLUDED FROM CROSS-EXAMINING
MCDONALD, BUT, AS THE STATE CONCEDED AT ORAL ARGUMENT, /10/  HE WAS
ALSO RESTRICTED IN THE SCOPE OF HIS DIRECT EXAMINATION BY THE RULE'S
COROLLARY REQUIREMENT THAT THE PARTY CALLING THE WITNESS IS BOUND BY
ANYTHING HE MIGHT SAY.  HE WAS, THEREFORE, EFFECTIVELY PREVENTED FROM
EXPLORING THE CIRCUMSTANCES OF MCDONALD'S THREE PRIOR ORAL CONFESSIONS
AND FROM CHALLENGING THE RENUNCIATION OF THE WRITTEN CONFESSION. 

IN THIS COURT, MISSISSIPPI HAS NOT SOUGHT TO DEFEND THE RULE OR
EXPLAIN ITS UNDERLYING RATIONALE.  NOR HAS IT CONTENDED THAT ITS RULE
SHOULD OVERRIDE THE ACCUSED'S RIGHT OF CONFRONTATION.  INSTEAD, IT
ARGUES THAT THERE IS NO INCOMPATABILITY BETWEEN THE RULE AND CHAMBERS'
RIGHTS BECAUSE NO RIGHT OF CONFRONTATION EXISTS UNLESS THE TESTIFYING
WITNESS IS "ADVERSE" TO THE ACCUSED.  THE STATE'S BRIEF ASSERTS THAT
THE "RIGHT OF CONFRONTATION APPLIES TO WITNESSES 'AGAINST' AN
ACCUSED."  /11/  RELYING ON THE TRIAL COURT'S DETERMINATION THAT
MCDONALD WAS NOT "ADVERSE," AND ON THE STATE SUPREME COURT'S HOLDING
THAT MCDONALD DID NOT "POINT THE FINGER AT CHAMBERS,"  /12/  THE STATE
CONTENDS THAT CHAMBERS' CONSTITUTIONAL RIGHT WAS NOT INVOLVED. 

THE ARGUMENT THAT MCDONALD'S TESTIMONY WAS NOT "ADVERSE" TO, OR
"AGAINST," CHAMBERS IS NOT CONVINCING.  THE STATE'S PROOF AT TRIAL
EXCLUDED THE THEORY THAT MORE THAN ONE PERSON PARTICIPATED IN THE
SHOOTING OF LIBERTY.  TO THE EXTENT THAT MCDONALD'S SWORN CONFESSION
TENDED TO INCRIMINATE HIM, IT TENDED ALSO TO EXCULPATE CHAMBERS.  /13/
AND, IN THE CIRCUMSTANCES OF THIS CASE, MCDONALD'S RETRACTION
INCULPATED CHAMBERS TO THE SAME EXTENT THAT IT EXCULPATED MCDONALD.  IT
CAN HARDLY BE DISPUTED THAT MCDONALD'S TESTIMONY WAS IN FACT SERIOUSLY
ADVERSE TO CHAMBERS.  THE AVAILABILITY OF THE RIGHT TO CONFRONT AND TO
CROSS-EXAMINE THOSE WHO GIVE DAMAGING TESTIMONY AGAINST THE ACCUSED HAS
NEVER BEEN HELD TO DEPEND ON WHETHER THE WITNESS WAS INITIALLY PUT ON
THE STAND BY THE ACCUSED OR BY THE STATE.  WE REJECT THE NOTION THAT A
RIGHT OF SUCH SUBSTANCE IN THE CRIMINAL PROCESS MAY BE GOVERNED BY THAT
TECHNICALITY OR BY ANY NARROW AND UNREALISTIC DEFINITION OF THE WORD
"AGAINST."  THE "VOUCHER" RULE, AS APPLIED IN THIS CASE, PLAINLY
INTERFERED WITH CHAMBERS' RIGHT TO DEFEND AGAINST THE STATE'S CHARGES. 

        B 

WE NEED NOT DECIDE, HOWEVER, WHETHER THIS ERROR ALONE WOULD OCCASION
REVERSAL SINCE CHAMBERS' CLAIMED DENIAL OF DUE PROCESS RESTS ON THE
ULTIMATE IMPACT OF THAT ERROR WHEN VIEWED IN CONJUNCTION WITH THE TRIAL
COURT'S REFUSAL TO PERMIT HIM TO CALL OTHER WITNESSES.  THE TRIAL COURT
REFUSED TO ALLOW HIM TO INTRODUCE THE TESTIMONY OF HARDIN, TURNER, AND
CARTER.  EACH WOULD HAVE TESTIFIED TO THE STATEMENTS PURPORTEDLY MADE
BY MCDONALD, ON THREE SEPARATE OCCASIONS SHORTLY AFTER THE CRIME,
NAMING HIMSELF AS THE MURDERER.  THE STATE SUPREME COURT APPROVED THE
EXCLUSION OF THIS EVIDENCE ON THE GROUND THAT IT WAS HEARSAY. 

THE HEARSAY RULE, WHICH HAS LONG BEEN RECOGNIZED AND RESPECTED BY
VIRTUALLY EVERY STATE, IS BASED ON EXPERIENCE AND GROUNDED IN THE
NOTION THAT UNTRUSTWORTHY EVIDENCE SHOULD NOT BE PRESENTED TO THE
TRIERS OF FACT.  OUT-OF-COURT STATEMENTS ARE TRADITIONALLY EXCLUDED
BECAUSE THEY LACK THE CONVENTIONAL INDICIA OF RELIABILITY:  THEY ARE
USUALLY NOT MADE UNDER OATH OR OTHER CIRCUMSTANCES THAT IMPRESS THE
SPEAKER WITH THE SOLEMNITY OF HIS STATEMENTS; THE DECLARANT'S WORD IS
NOT SUBJECT TO CROSS-EXAMINATION; AND HE IS NOT AVAILABLE IN ORDER THAT
HIS DEMEANOR AND CREDIBILITY MAY BE ASSESSED BY THE JURY.  CALIFORNIA
V. GREEN, 399 U.S. 149, 158(1970).  A NUMBER OF EXCEPTIONS HAVE
DEVELOPED OVER THE YEARS TO ALLOW ADMISSION OF HEARSAY STATEMENTS MADE
UNDER CIRCUMSTANCES THAT TEND TO ASSURE RELIABILITY AND THEREBY
COMPENSATE FOR THE ABSENCE OF THE OATH AND OPPORTUNITY FOR CROSS
EXAMINATION.  AMONG THE MOST PREVALENT OF THESE EXCEPTIONS IS THE ONE
APPLICABLE TO DECLARATIONS AGAINST INTEREST /14/  -- AN EXCEPTION
FOUNDED ON THE ASSUMPTION THAT A PERSON IS UNLIKELY TO FABRICATE A
STATEMENT AGAINST HIS OWN INTEREST AT THE TIME IT IS MADE.  MISSISSIPPI
RECOGNIZES THIS EXCEPTION BUT APPLIES IT ONLY TO DECLARATIONS AGAINST
PECUNIARY INTEREST.  /15/  IT RECOGNIZES NO SUCH EXCEPTION FOR
DECLARATIONS, LIKE MCDONALD'S IN THIS CASE, THAT ARE AGAINST THE PENAL
INTEREST OF THE DECLARANT.  BROWN V. STATE, 99 MISS.  719, 55 SO.
961(1911). 

THIS MATERIALISTIC LIMITATION ON THE DECLARATION-AGAINST-INTEREST
HEARSAY EXCEPTION APPEARS TO BE ACCEPTED BY MOST STATES IN THEIR
CRIMINAL TRIAL PROCESSES, /16/  ALTHOUGH A NUMBER OF STATES HAVE
DISCARDED IT.  /17/  DECLARATIONS AGAINST PENAL INTEREST HAVE ALSO BEEN
EXCLUDED IN FEDERAL COURTS UNDER THE AUTHORITY OF DONNELLY V. UNITED
STATES, 228 U.S. 243, 272-273(1913), ALTHOUGH EXCLUSION WOULD NOT BE
REQUIRED UNDER THE NEWLY PROPOSED FEDERAL RULES OF EVIDENCE.  /18/
EXCLUSION, WHERE THE LIMITATION PREVAILS, IS USUALLY PREMISED ON THE
VIEW THAT ADMISSION WOULD LEAD TO THE FREQUENT PRESENTATION OF PERJURED
TESTIMONY TO THE JURY.  IT IS BELIEVED THAT CONFESSIONS OF CRIMINAL
ACTIVITY ARE OFTEN MOTIVATED BY EXTRANEOUS CONSIDERATIONS AND,
THEREFORE, ARE NOT AS INHERENTLY RELIABLE AS STATEMENTS AGAINST
PECUNIARY OR PROPRIETARY INTEREST.  WHILE THAT RATIONALE HAS BEEN THE
SUBJECT OF CONSIDERABLE SCHOLARLY CRITICISM, /19/  WE NEED NOT DECIDE
IN THIS CASE WHETHER, UNDER OTHER CIRCUMSTANCES, IT MIGHT SERVE SOME
VALID STATE PURPOSE BY EXCLUDING UNTRUSTWORTHY TESTIMONY. 

THE HEARSAY STATEMENTS INVOLVED IN THIS CASE WERE ORIGINALLY MADE
AND SUBSEQUENTLY OFFERED AT TRIAL UNDER CIRCUMSTANCES THAT PROVIDED
CONSIDERABLE ASSURANCE OF THEIR RELIABILITY.  FIRST, EACH OF MCDONALD'S
CONFESSIONS WAS MADE SPONTANEOUSLY TO A CLOSE ACQUAINTANCE SHORTLY
AFTER THE MURDER HAD OCCURRED.  SECOND, EACH ONE WAS CORROBORATED BY
SOME OTHER EVIDENCE IN THE CASE-- MCDONALD'S SWORN CONFESSION, THE
TESTIMONY THAT MCDONALD WAS SEEN WITH A GUN IMMEDIATELY AFTER THE
SHOOTING, AND PROOF OF HIS PRIOR OWNERSHIP OF A .22-CALIBER REVOLVER
AND SUBSEQUENT PURCHASE OF A NEW WEAPON.  THE SHEER NUMBER OF
INDEPENDENT CONFESSIONS PROVIDED ADDITIONAL CORROBORATION FOR EACH. 
THIRD, WHATEVER MAY BE THE PARAMETERS OF THE PENAL-INTEREST RATIONALE,
/20/  EACH CONFESSION HERE WAS IN A VERY REAL SENSE SELF-INCRIMINATORY
AND UNQUESTIONABLY AGAINST INTEREST.  SEE UNITED STATES V. HARRIS, 403
U.S. 573, 584(1971); DUTTON V. EVANS, 400 U.S.,AT 89.  MCDONALD STOOD
TO BENEFIT NOTHING BY DISCLOSING HIS ROLE IN THE SHOOTING TO ANY OF HIS
THREE FRIENDS AND HE MUST HAVE BEEN AWARE OF THE POSSIBILITY THAT
DISCLOSURE WOULD LEAD TO CRIMINAL PROSECUTION.  INDEED, AFTER TELLING
TURNER OF HIS INVOLVEMENT, HE SUBSEQUENTLY URGED TURNER NOT TO "MESS
HIM UP."  FINALLY, IF THERE WAS ANY QUESTION ABOUT THE TRUTHFULNESS OF
THE EXTRAJUDICIAL STATEMENTS, MCDONALD WAS PRESENT IN THE COURTROOM AND
WAS UNDER OATH.  HE COULD HAVE BEEN CROSS-EXAMINED BY THE STATE, AND
HIS DEMEANOR AND RESPONSES WEIGHED BY THE JURY.  SEE CALIFORNIA V.
GREEN, 399 U.S. 149(1970).  THE AVAILABILITY OF MCDONALD SIGNIFICANTLY
DISTINGUISHES THIS CASE FROM THE PRIOR MISSISSIPPI PRECEDENT, BROWN V.
STATE, SUPRA, AND FROM THE DONNELLY-TYPE SITUATION, SINCE IN BOTH CASES
THE DEFENDANT WAS UNAVAILABLE AT THE TIME OF THE TRIAL.  /21/ 

FEW RIGHTS ARE MORE FUNDAMENTAL THAN THAT OF AN ACCUSED TO PRESENT
WITNESSES IN HIS OWN DEFENSE.  E.G., WEBB V. TEXAS, 409 U.S. 95(1972);
WASHINGTON V. TEXAS, 388 U.S. 14, 19(1967); IN RE OLIVER, 333 U.S.
257(1948).  IN THE EXERCISE OF THIS RIGHT, THE ACCUSED, AS IS REQUIRED
OF THE STATE, MUST COMPLY WITH ESTABLISHED RULES OF PROCEDURE AND
EVIDENCE DESIGNED TO ASSURE BOTH FAIRNESS AND RELIABILITY IN THE
ASCERTAINMENT OF GUILT AND INNOCENCE.  ALTHOUGH PERHAPS NO RULE OF
EVIDENCE HAS BEEN MORE RESPECTED OR MORE FREQUENTLY APPLIED IN JURY
TRIALS THAN THAT APPLICABLE TO THE EXCLUSION OF HEARSAY, EXCEPTIONS
TAILORED TO ALLOW THE INTRODUCTION OF EVIDENCE WHICH IN FACT IS LIKELY
TO BE TRUSTWORTHY HAVE LONG EXISTED.  THE TESTIMONY REJECTED BY THE
TRIAL COURT HERE BORE PERSUASIVE ASSURANCES OF TRUSTWORTHINESS AND THUS
WAS WELL WITHIN THE BASIC RATIONALE OF THE EXCEPTION FOR DECLARATIONS
AGAINST INTEREST.  THAT TESTIMONY ALSO WAS CRITICAL OF CHAMBERS'
DEFENSE.  IN THESE CIRCUMSTANCES, WHERE CONSITUTIONAL RIGHTS DIRECTLY
AFFECTING THE ASCERTAINMENT OF GUILT ARE IMPLICATED, THE HEARSAY RULE
MAY NOT BE APPLIED MECHANISTICALLY TO DEFEAT THE ENDS OF JUSTICE. 
WE CONCLUDE THAT THE EXCLUSION OF THIS CRITICAL EVIDENCE, COUPLED WITH
THE STATE'S REFUSAL TO PERMIT CHAMBERS TO CROSS-EXAMINE MCDONALD,
DENIED HIM A TRIAL IN ACCORD WITH TRADITIONAL AND FUNDAMENTAL STANDARDS
OF DUE PROCESS.  IN REACHING THE JUDGMENT, WE ESTABLISH NO NEW
PRINCIPLES OF CONSTITUTIONAL LAW.  NOR DOES OUR HOLDING SIGNAL ANY
DIMINUTION IN THE RESPECT TRADITIONALLY ACCORDED TO THE STATES IN THE
ESTABLISHMENT AND IMPLEMENTATION OF THEIR OWN CRIMINAL TRIAL RULES AND
PROCEDURES.  RATHER, WE HOLD QUITE SIMPLY THAT UNDER THE FACTS AND
CIRCUMSTANCES OF THIS CASE THE RULINGS OF THE TRIAL COURT DEPRIVED
CHAMBERS OF A FAIR TRIAL. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE SUPREME
COURT OF MISSISSIPPI FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  JAMES WILLIAMS WAS INDICTED ALONG WITH CHAMBERS.  THE STATE,
HOWEVER, FAILED TO INTRODUCE ANY EVIDENCE AT TRIAL IMPLICATING WILLIAMS
IN THE SHOOTING.  AT THE CONCLUSION OF THE STATE'S CASE-IN-CHIEF, THE
TRIAL COURT GRANTED A DIRECTED VERDICT IN HIS FAVOR. 

/2/  UPON CHAMBERS' MOTION, A CHANGE OF VENUE WAS GRANTED AND THE
TRIAL WAS HELD IN AMITE COUNTY, TO THE EAST OF WOODVILLE.  THE CHANGE
OF TRIAL SETTING WAS IN RESPONSE TO PETITIONER'S CLAIM THAT, BECAUSE OF
ADVERSE PUBLICITY AND THE HOSTILE ATTITUDE OF THE POLICE AND SHERIFF'S
STAFFS IN WOODVILLE, HE COULD NOT OBTAIN A FAIR AND IMPARTIAL TRIAL
THERE. 

/3/  ON THE RECORD IN THIS CASE, DESPITE THE STATE SUPREME COURT'S
FAILURE TO ADDRESS THE CONSTITUTIONAL ISSUE, IT IS CLEAR THAT CHAMBERS'
ASSERTED DENIAL OF DUE PROCESS IS PROPERLY BEFORE US.  HE OBJECTED
DURING TRIAL TO EACH OF THE COURT'S RULINGS.  AS TO THE CONFRONTATION
CLAIM, PETITIONER ASSERTED, BOTH BEFORE AND DURING TRIAL, HIS RIGHT TO
TREAT MCDONALD AS AN ADVERSE WITNESS.  HIS MOTION FOR NEW TRIAL, FILED
AFTER THE JURY'S VERDICT, LISTED AS ERROR THE TRIAL COURT'S REFUSAL TO
PERMIT CROSS-EXAMINATION OF MCDONALD AND THE EXCLUSION OF EVIDENCE
CORROBORATIVE OF MCDONALD'S GUILT.  THE MOTION CONCLUDED THAT THE TRIAL
"WAS NOT IN ACCORD WITH FUNDAMENTAL FAIRNESS GUARANTEED BY THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION."  CHAMBERS REASSERTED THOSE
CLAIMS ON APPEAL TO THE STATE SUPREME COURT.  AFTER THE AFFIRMANCE OF
HIS CONVICTION BY THAT COURT, CHAMBERS FILED A PETITION FOR REHEARING
ADDRESSED ALMOST ENTIRELY TO THE CLAIM THAT HIS TRIAL HAD NOT BEEN
CONDUCTED IN A MANNER CONSISTENT WITH TRADITIONAL NOTIONS OF DUE
PROCESS.  THE STATE SUPREME COURT RAISED NO QUESTION THAT CHAMBERS'
CLAIMS WERE NOT PROPERLY ASSERTED, AND NO CLAIM HAS BEEN MADE BY THE
STATE-- IN ITS RESPONSE TO THE PETITION FOR CERTIORARI, IN ITS BRIEF ON
THE MERITS, OR AT ORAL ARGUMENT-- THAT THE QUESTIONS ARE NOT PROPERLY
REVIEWABLE BY THIS COURT.  SEE STREET V. NEW YORK, 394 U.S. 576, 581
585(1969); NEW YORK EX REL. BRYANT V. ZIMMERMAN, 278 U.S. 63, 67
68(1928). 

UNLIKE HENRY V. MISSISSIPPI, 379 U.S. 443(1965), THIS CASE DOES NOT
INVOLVE THE STATE PROCEDURAL REQUIREMENT OF CONTEMPORANEOUS OBJECTION
TO THE ADMISSION OF EVIDENCE.  PETITIONER'S CONTENTION, ASSERTED BEFORE
THE TRIAL COURT ON MOTION FOR NEW TRIAL AND SUBSEQUENTLY BEFORE THE
MISSISSIPPI SUPREME COURT, IS THAT HE WAS DENIED "FUNDAMENTAL FAIRNESS
GUARANTEED BY THE FOURTEENTH AMENDMENT" AS A RESULT OF SEVERAL
EVIDENTIARY RULINGS.  HIS CLAIM, THE SUBSTANCE OF WHICH WE ACCEPT IN
THIS OPINION, RESTS ON THE CUMULATIVE EFFECT OF THOSE RULINGS IN
FRUSTRATING HIS EFFORTS TO DEVELOP AN EXCULPATORY DEFENSE.  ALTHOUGH HE
OBJECTED TO EACH RULING INDIVIDUALLY, PETITIONER'S CONSTITUTIONAL CLAIM
- BASED AS IT IS ON THE CUMULATIVE IMPACT OF THE RULINGS-- COULD NOT
HAVE BEEN RAISED AND RULED UPON PRIOR TO THE CONCLUSION OF CHAMBERS'
EVIDENTIARY PRESENTATION.  SINCE THE STATE HAS NOT ASSERTED ANY
INDEPENDENT STATE PROCEDURAL GROUND AS A BASIS FOR NOT REACHING THE
MERITS OF PETITIONER'S CONSITUTIONAL CLAIM, WE HAVE NO OCCASION TO
DECIDE WHETHER-- IF SUCH A GROUND EXISTS-- IT IMPOSITION IN THIS CASE
WOULD SERVE ANY "LEGITIMATE STATE INTEREST."  ID., AT 447.  UNDER THESE
CIRCUMSTANCES, WE CANNOT DOUBT THE PROPRIETY OF OUR EXERCISE OF
JURISDICTION. 

/4/  HARDIN'S TESTIMONY, UNLIKE THE TESTIMONY OF THE OTHER TWO MEN
WHO STATED THAT MCDONALD HAD CONFESSED TO THEM, WAS ACTUALLY GIVEN IN
THE JURY'S PRESENCE.  AFTER THE STATE'S OBJECTION TO HARDIN'S ACCOUNT
OF MCDONALD'S STATEMENT WAS SUSTAINED, THE TRIAL COURT ORDERED THE JURY
TO DISREGARD IT. 

/5/  A GUN DEALER FROM NATCHEZ TESTIFIED THAT MCDONALD HAD MADE TWO
PURCHASES.  THE WITNESS' BUSINESS RECORDS INDICATED THAT MCDONALD
PURCHASED A NINE-SHOT .22-CALIBER REVOLVER ABOUT A YEAR PRIOR TO THE
MURDER.  HE PURCHASES A DIFFERENT STYLE .22-CALIBER THREE WEEKS AFTER
LIBERTY'S DEATH. 

/6/  IT IS NOT ENTIRELY CLEAR WHETHER THE TRIAL COURT'S RULING WAS
PREMISED ON THE SAME HEARSAY RATIONALE UNDERLYING THE EXCLUSION OF THE
OTHER TESTIMONY.  IN THIS INSTANCE, THE STATE ARGUED THAT CARTER'S
TESTIMONY WAS AN IMPERMISSIBLE ATTEMPT BY PETITIONER TO IMPEACH A
WITNESS (MCDONALD) WHO WAS NOT ADVERSE TO HIM.  THE TRIAL COURT DID NOT
STATE WHY IT WAS EXCLUDING THE EVIDENCE BUT THE STATE SUPREME COURT
INDICATED THAT IT WAS EXCLUDED AS HEARSAY.  252 SO.2D, AT 220. 

/7/  3A J.WIGMORE, EVIDENCE 896, PP. 658-660 (J. CHADBOURN ED.
1970); C. MCCORMICK, EVIDENCE SEC. 38, PP. 75-78 (2D ED. 1972). 

/8/  THE "VOUCHER" RULE HAS BEEN CONDEMNED AS ARCHAIC, IRRATIONAL,
AND POTENTIALLY DESTRUCTIVE OF THE TRUTH-GATHERING PROCESS.  C.
MCCORMICK, SUPRA, N. 7; E. MORGAN, BASIC PROBLEMS OF EVIDENCE 70-71)
(1962); 3A J.WIGMORE, SUPRA, N. 7, SEC. 898, P. 661. 

/9/  THE "VOUCHER" RULE HAS BEEN REJECTED ALTOGETHER BY THE NEWLY
PROPOSED FEDERAL RULES OF EVIDENCE, RULE 607, RULES OF EVIDENCE FOR
UNITED STATES COURT AND MAGISTRATES (APPROVED NOV. 20, 1972, AND
TRANSMITTED TO CONGRESS TO BECOME EFFECTIVE JULY 1, 1973, UNLESS THE
CONGRESS OTHERWISE DETERMINES). 

/10/  TR. OF ORAL ARG. 35-37. 

/11/  BRIEF FOR RESPONDENT 9. 

/12/  252 SO.2D, AT 220. 

/13/  SEE DONNELLY V. UNITED STATES, 228 U.S. 243, 272(1913). 

/14/  JEFFERSON, DECLARATIONS AGAINST INTEREST:  AN EXCEPTION TO THE
HEARSAY RULE, 58 HARV.L.REV.  1(1944). 

/15/  H. MCELROY, MISSISSIPPI EVIDENCE SEC. 46(1955); FORREST COUNTY
COOP.  ASSN.  V. MCCAFFREY, 253 MISS.  486, 493, 176 SO.2D 287, 289
290(1965). 

/16/  C. MCCORMICK, SUPRA, N. 7, SEC. 278, P. 673; 5 J.WIGMORE,
EVIDENCE 1476, PP. 283-287 N. 9 (1940). 

/17/  SEE, E.G., PEOPLE V. SPRIGGS, 60 CAL.2D 868, 389 P.2D
377(1964); PEOPLE V. LETTRICH, 413 ILL. 172, 108 N.E.2D 488(1952);
PEOPLE V. BROWN, 26 N.Y.2D 88, 257 N.E.2D 16(1970); HINES V.
COMMONWEALTH, 136 VA. 728, 1117 S.E. 843(1923). 

/18/  RULE 804, SUPRA, N. 9. 

/19/  SEE, E.G., COMMITTEE ON RULES OF PRACTICE & PROCEDURE, RULES
OF EVIDENCE FOR UNITED STATES COURTS AND MAGISTRATES 129-131 (REV.
DRAFT, MAR. 1971); 5 J.WIGMORE, SUPRA, N. 16, SEC. 1476, P. 284;
WRIGHT, UNIFORM RULES AND HEARSAY, 26 U.CIN.L.REV.  575(1957); UNITED
STATES V. ANNUNZIATO, 293 F.2D 373, 378(CA2), CERT. DENIED, 368 U.S.
919(1961) (FRIENDLY, J.); SCOLARI V. UNITED STATES, 406 F.2D 563, 564
(CA9), CERT, DENIED, 395 U.S. 981(1969). 

/20/  THE MISSISSIPPI CASE WHICH REFUSED TO ADOPT A HEARSAY
EXCEPTION FOR DECLARATIONS AGAINST PENAL INTEREST CONCERNED AN OUT-OF
COURT DECLARANT WHO PURPORTEDLY STATED THAT HE HAD COMMITTED THE MURDER
WITH WHICH HIS BROTHER HAD BEEN CHARGED.  THE MISSISSIPPI SUPREME COURT
BELIEVED THAT THE DECLARANT MIGHT HAVE BEEN MOTIVATED BY A DESIRE TO
FREE HIS BROTHER RATHER THAN BY ANY COMPULSION OF GUILT.  THE COURT
ALSO NOTED THAT THE DECLARANT HAD FLED, WAS UNAVAILABLE FOR CROSS
EXAMINATION, AND MIGHT WELL HAVE KNOWN AT THE TIME HE MADE THE
STATEMENT THAT HE WOULD NOT SUFFER FOR IT.  BROWN V. STATE, 99 MISS. 
719, 55 SO. 961(1911).  THERE IS, IN THE PRESENT CASE, NO SUCH BASIS
FOR DOUBTING MCDONALD'S STATEMENTS.  SEE NOTE, 43 MISS.L.J. 122, 127
129(1972). 

/21/  MCDONALD'S PRESENCE ALSO DEPRIVES THE STATE'S ARGUMENT FOR
RETENTION OF THE PENAL-INTEREST RULE OF MUCH OF ITS FORCE.  IN CLAIMING
THAT "(TO CHANGE THE RULE WOULD WORK A TRAVESTY ON JUSTICE," THE STATE
POSITED THE FOLLOWING HYPOTHETICAL: 

"IF THE RULE WERE CHANGED, A COULD BE CHARGED WITH THE CRIME; B
COULD TELL C AND D THAT HE COMMITTED THE CRIME; B COULD GO INTO HIDING
AND AT A'S TRIAL C AND D WOULD TESTIFY AS TO B'S ADMISSION OF GUILT; A
COULD BE ACQUITTED AND AND B WOULD RETURN TO STAND TRIAL; B COULD THEN
PROVIDE SEVERAL WITNESSES TO TESTIFY AS TO HIS WHEREABOUTS AT THE TIME
OF THE CRIME.  THE TESTIMONY OF THOSE WITNESSES ALONG WITH A'S
STATEMENT THAT HE REALLY COMMITTED THE CRIME WOULD RESULT IN B'S
ACQUITTAL.  A WOULD BE BARRED FROM FURTHER PROSECUTION BECAUSE OF THE
PROTECTION AGAINST DOUBLE JEOPARDY.  NO ONE COULD BE CONVICTED OF
PERJURY AS A DID NOT TESTIFY AT HIS FIRST TRIAL, B DID NOT LIE UNDER
OATH, AND C AND D WERE TRUTHFUL IN THEIR TESTIMONY."  BRIEF FOR
RESPONDENT 7 N. 3). 

OBVIOUSLY, B'S ABSENCE AT TRIAL IS CRITICAL TO THE SUCCESS OF THE
JUSTICE-SUBVERTING PLOY. 

MR. JUSTICE WHITE, CONCURRING. 

WE WOULD NOT ORDINARILY EXPECT AN APPELLATE COURT IN THE STATE OR
FEDERAL SYSTEM TO REMAIN SILENT ON A CONSTITUTIONAL ISSUE REQUIRING
DECISION IN THE CASE BEFORE IT.  NORMALLY, A COURT'S SILENCE ON AN
IMPORTANT QUESTION WOULD SIMPLY INDICATE THAT IT WAS UNNECESSARY TO
DECIDE THE ISSUE BECAUSE IT WAS NOT PROPERLY BEFORE THE COURT OR FOR
SOME OTHER REASON.  AS MY BROTHER REHNQUIST POINTS OUT, THE COURT
STATED IN STREET V. NEW YORK, 394 U.S. 576, 582(1969), THAT "WHEN . . .
THE HIGHEST STATE COURT HAS FAILED TO PASS UPON A FEDERAL QUESTION, IT
WILL BE ASSUMED THAT THE OMISSION WAS DUE TO WANT OF PROPER
PRESENTATION IN THE STATE COURTS, UNLESS THE AGGRIEVED PARTY IN THIS
COURT CAN AFFIRMATIVELY SHOW THE CONTRARY." 

UNDER THIS RULE IT BECOMES THE PETITIONER'S BURDEN TO DEMONSTRATE
THAT UNDER THE APPLICABLE STATE LAW HIS CLAIM WAS PROPERLY BEFORE THE
STATE COURT AND WAS THEREFORE NECESSARILY REJECTED, ALTHOUGH SILENTLY,
BY AFFIRMANCE OF THE JUDGMENT.  IF HE FAILS TO DO SO, WE NEED NOT
ENTERTAIN AND DECIDE THE FEDERAL QUESTION THAT HE PRESSES. 

IT IS NOT OUR INVARIABLE PRACTICE, HOWEVER, THAT WE WILL NOT
OURSELVES CANVASS STATE LAW TO DETERMINE WHETHER THE FEDERAL QUESTION,
PRESENTED TO BUT NOT DISCUSSED BY THE STATE SUPREME COURT, WAS PROPERLY
RAISED IN ACCORDANCE WITH STATE PROCEDURES.  THE COURT SURVEYED STATE
LAW IN STREET, ITSELF, WITH LITTLE IF ANY HELP FROM THE APPELLANT; AND
I THINK IT IS APPROPRIATE HERE WHERE THE STATE DOES NOT CONTEST OUR
JURISDICTION AND SEEMINGLY CONCEDES THAT THE QUESTION WAS PROPERLY
RAISED BELOW AND NECESSARILY DECIDED BY THE MISSISSIPPI SUPREME COURT. 

THERE IS LITTLE DOUBT THAT MISSISSIPPI ORDINARILY ENFORCES A RULE OF
CONTEMPORANEOUS OBJECTION WITH RESPECT TO EVIDENCE; THE THREE OPINIONS
IN HENRY V. STATE, 253 MISS.  263, 154 SO.2D 289(1963); 253 MISS.  283,
174 SO.2D 348(1965); 198 SO.2D 213(1967), MAKES THIS SUFFICIENTLY
CLEAR.  ALSO, THAT CASE CAME HERE, AND WE NOT ONLY NOTED THE EXISTENCE
OF THE RULE BUT RECOGNIZED THAT IT SERVED A LEGITIMATE STATE INTEREST. 
HENRY V. MISSISSIPPI, 379 U.S. 443(1965).  THE SAME RULE OBTAINS WHERE
THE PROPONENT OF EVIDENCE CLAIMS ERROR IN ITS EXCLUSION: 

"THE REJECTION OF EVIDENCE NOT APPARENTLY ADMISSIBLE IS NOT ERROR,
IN THE ABSENCE OF AN OFFER OR SUFFICIENT STATEMENT OF THE PURPOSE OF
ITS INTRODUCTION, BY WHICH THE COURT MAY DETERMINE ITS RELEVANCY OR
ADMISSIBILITY.  . . THIS COURT HAS CONSISTENTLY FOLLOWED THIS RULE
REQUIRING DEFINITENESS AND SUFFICIENCY OF AN OFFER OF PROOF.  . . "
FREEMAN V. STATE, 204 SO.2D 842, 847-848 (1967) (DISSENTING OPINION). 

THERE ARE MISSISSIPPI CASES STATING THAT IN PROPER CIRCUMSTANCES THE
CONTEMPORANEOUS-OBJECTION RULE WILL NOT BE ENFORCED AND THAT THE STATE
SUPREME COURT IN SOME CIRCUMSTANCES WILL CONSIDER AN ISSUE RAISED THERE
FOR THE FIRST TIME.  IN CARTER V. STATE, 198 MISS.  523, 21 SO.2D
404(1945), THE ONLY ISSUE NOT RAISED AT TRIAL.  THE COURT SAID "(THE
RULE THAT QUESTIONS NOT RAISED IN THE TRIAL COURT CANNOT BE RAISED FOR
THE FIRST TIME ON APPEAL, IS NOT WITHOUT EXCEPTIONS, AMONG WHICH ARE
ERRORS 'AFFECTING FUNDAMENTAL RIGHTS OF THE PARTIES . . . OR AFFECTING
PUBLIC POLICY,' . . . IF TO ACT ON WHICH WILL WORK NO INJUSTICE TO ANY
PARTY TO THE APPEAL."  ID., AT 528, 21 SO.2D, AT 404.  THE COURT
PROCEEDED TO CONSIDER THE ISSUE.  IN BROOKS V. STATE, 209 MISS.  150,
155, 46 SO.2D 94, 97(1950), A CONVICTED DEFENDANT ASSERTED IN THE STATE
SUPREME COURT FOR THE FIRST TIME THE INADMISSIBILITY OF CERTAIN
EVIDENCE ON THE GROUNDS OF AN ILLEGAL SEARCH AND SEIZURE, VIOLATION OF
THE RULE AGAINST SELF-INCRIMINATION, AND IMPROPER CROSS-EXAMINATION. 
THE COURT CONSIDERED THESE QUESTIONS AND REVERSED THE CONVICTION,
SAYING THAT "(ERRORS AFFECTING FUNDAMENTAL RIGHTS ARE EXCEPTIONS TO THE
RULE THAT QUESTIONS NOT RAISED IN THE TRIAL COURT CANNOT BE RAISED FOR
THE FIRST TIME ON APPEAL.  . .  (WHERE FUNDAMENTAL AND CONSITUTIONAL
RIGHTS ARE IGNORED, DUE PROCESS DOES NOT EXIST, AND A FAIR TRIAL IN
CONTEMPLATION OF LAW CANNOT BE HAD." 

THE REACH OF THESE CASES WAS LEFT IN DOUBT WHEN, IN AFFIRMING THE
JUDGMENT IN HENRY V. STATE, 253 MISS.  263, 154 SO.2D 289(1963), THE
MISSISSIPPI SUPREME COURT REFUSED TO CONSIDER A CLAIM OF ILLEGALLY
OBTAINED EVIDENCE BECAUSE THE MATTER HAD NOT BEEN PRESENTED TO THE
TRIAL COURT.  THE CASE DID NOT COME WITHIN BROOKS V. STATE, SUPRA, THE
COURT RULED, BECAUSE HENRY'S COUNSEL WERE EXPERIENCED AND ADEQUATE, AND
HENRY WAS BOUND BY THEIR MISTAKES.  THIS COURT VACATED THAT JUDGMENT
AND REMANDED FOR DETERMINATION WHETHER THERE HAD BEEN A DELIBERATE
BYPASS, READING MISSISSIPPI LAW AS EXTENDING NO DISCRETION TO GIVE
RELIEF FROM THE CONTEMPORANEOUS-OBJECTION RULE WHERE "PETITIONER WAS
REPRESENTED BY COMPETENT LOCAL COUNSEL FAMILIAR WITH LOCAL PROCEDURE." 
HENRY V. MISSISSIPPI, 379 U.S.,AT 449 N. 5.  IN ITS INITIAL OPINION ON
REMAND, THE SUPREME COURT OF MISSISSIPPI REASSERTED THE NECESSITY TO
OBJECT AT THE TIME TESTIMONY IS OFFERED IN THE TRIAL COURT, BUT IT SAID
"(NEVERTHELESS IF IT APPEARS TO THE TRIAL JUDGE THAT THE FOREGOING RULE
OF PROCEDURE WOULD DEFEAT JUSTICE AND BRING ABOUT RESULTS NOT JUSTIFIED
OR INTENDED BY SUBSTANTIVE LAW, THE RULE MAY BE RELAXED AND
SUBORDINATED TO THE PRIMARY PURPOSE OF THE LAW TO ENFORCE CONSITUTIONAL
RIGHTS IN THE INTEREST OF JUSTICE."  HENRY V. STATE, 253 MISS.,AT 287,
174 SO.2D, AT 351.  /1/ 

IN KING V. STATE, 230 SO.2D 209, 211(1970), THIS STATEMENT FROM THE
1965 HENRY OPINION WAS INTERPRETED AS GIVING THE SUPREME COURT OF THE
STATE, AS WELL AS THE TRIAL COURT, SUFFICIENT LATITUDE TO TREAT THE
REQUEST FOR A PEREMPTORY INSTRUCTION TO THE JURY AFTER FAILURE TO
OBJECT TO THE INTRODUCTION OF ALLEGEDLY OBTAINED EVIDENCE AS IF THE
APPELLANT HAD MADE TIMELY OBJECTION. 

MOREOVER, IN WOOD V. STATE, 257 SO.2D 193, 200(1972), WHERE A
CONVICTED DEFENDANT COMPLAINED OF A WIDE-RANGING AND ALLEGEDLY UNFAIR
CROSS-EXAMINATION OF DEFENSE WITNESSES, AND WHERE THERE HAD BEEN A
FAILURE TO OBJECT TO PART OF THE PREJUDICIAL INQUIRY, THE STATE SUPREME
COURT NEVERTHELESS CONSIDERED THE QUESTION, STATING:  "WE NOTE ALSO
THAT NO OBJECTION WAS MADE TO THE TESTIMONY OF DONALD RAY BOYD WHEN HE
WAS ASKED WHETHER HE HAD EVER BEEN IN JAIL.  HOWEVER, IT WAS STATED IN
BROOKS, SUPRA, THAT IN EXTREME CASES A FAILURE TO OBJECT TO QUESTIONS
WHICH WERE VIOLATIVE OF A CONSTITUTIONAL RIGHT DID NOT IN ALL EVENTS
HAVE TO BE OBJECTED TO BEFORE THEY WOULD RECEIVE CONSIDERATION BY THIS
COURT.  THE APPELLANT IN THIS CASE WAS BEING TRIED FOR MURDER.  THE
EVIDENCE OF DEFENDANT'S GUILT WAS EXTREMELY CLOSE.  A SHRED OF EVIDENCE
ONE WAY OR THE OTHER COULD HAVE BEEN PERSUASIVE TO THE JURY.  IN OUR
OPINION, THIS WARRANTS OUR CONSIDERATION OF THE QUESTIONS AND RESPONSES
TO WHICH REPEATED OBJECTIONS WERE MADE AND SUSTAINED BY THE COURT, AS
WELL AS THE CONSIDERATION OF THE TESTIMONY OF DONALD RAY BOYD WHEREIN
HE WAS ASKED WHETHER HE HAD BEEN IN JAIL OR NOT THOUGH NO FORMAL
OBJECTION WAS MADE THERETO." 

THESE CASES SEEMINGLY PRESERVE SOME ASPECTS OF THE BROOKS RULE, AND
HENCE ANTICIPATE SOME SITUATIONS WHERE THE CONTEMPORANEOUS-OBJECTION
REQUIREMENT WILL NOT BE ENFORCED, DESPITE HENRY.  THERE WILL BE
OCCASIONS WHERE THE SUPREME COURT OF MISSISSIPPI WILL CONSIDER
CONSTITUTIONAL CLAIMS MADE IN THAT COURT FOR THE FIRST TIME. 

WHERE THIS LEAVES THE MATTER OF OUR JURISDICTION IN THE LIGHT OF
DECISIONS SUCH AS WILLIAMS V. GEORGIA, 349 U.S. 375(1955), IS NOT
CLEAR.  THERE, WHILE ACKNOWLEDGING THAT MOTIONS FOR A NEW TRIAL AFTER
FINAL JUDGMENT WERE NOT FAVORED IN GEORGIA, THE COURT RECOGNIZED THAT
SUCH MOTIONS HAD BEEN GRANTED IN "EXCEPTIONAL" OR "EXTRAORDINARY"
CASES, THEIR AVAILABILITY BEING WITHIN THE WELL-INFORMED DISCRETION OF
THE COURTS.  IT WAS CLAIMED THAT DENYING WILLIAMS' MOTION WAS AN
ADEQUATE STATE GROUND PRECLUDING REVIEW HERE, BUT "SINCE HIS MOTION WAS
BASED UPON A CONSTITUTIONAL OBJECTION, AND ONE THE VALIDITY OF WHICH
HAS IN PRINCIPLE BEEN SUSTAINED HERE, THE DISCRETIONARY DECISION TO
DENY THE MOTION DOES NOT DEPRIVE THIS COURT OF JURISDICTION TO FIND
THAT THE SUBSTANTIVE ISSUE IS PROPERLY BEFORE US."  ID., AT 389. 

IN THE CIRCUMSTANCES BEFORE US, WHERE THERE WERE REPEATED OFFERS OF
EVIDENCE AND OBJECTIONS TO ITS EXCLUSION, ALTHOUGH NOT ON
CONSTITUTIONAL GROUNDS, WHERE THE MATTER WAS PRESENTED IN FEDERAL DUE
PROCESS TERMS TO THE STATE SUPREME COURT AND WHERE THE STATE DOES NOT
NOW DENY THAT THE ISSUE WAS PROPERLY BEFORE THE STATE COURT AND COULD
HAVE BEEN CONSIDERED BY IT, I AM INCLINED, ALTHOUGH DUBITANTE, TO
CONCLUDE WITH THE COURT THAT WE HAVE JURISDICTION. 

AS TO THE MERITS, I WOULD JOIN IN THE COURT'S OPINION AND JUDGMENT. 

MR. JUSTICE REHNQUIST, DISSENTING. 

WERE I TO REACH THE MERITS IN THIS CASE, I WOULD HAVE CONSIDERABLE
DIFFICULTY IN SUBSCRIBING TO THE COURT'S FURTHER CONSTITUTIONALIZATION
OF THE INTRICACIES OF THE COMMON LAW OF EVIDENCE.  I DO NOT REACH THE
MERITS, SINCE I CONCLUDE THAT PETITIONER FAILED TO PROPERLY RAISE IN
THE MISSISSIPPI COURTS THE CONSTITUTIONAL ISSUE THAT HE SEEKS TO HAVE
THIS COURT DECIDE. 

TITLE 28 U.S.C. 1257 PROVIDES IN PERTINENT PART AS FOLLOWS: 

     "FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT OF A

  STATE IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE

  SUPREME COURT AS FOLLOWS:

        .          .    .          . 

     "(3) BY WRIT OF CERTIORARI, . . . WHERE ANY TITLE, RIGHT,

  PRIVILEGE OR IMMUNITY IS SPECIALLY SET UP OR CLAIMED UNDER THE

  CONSTITUTION, TREATIES OR STATUTES OF, OR COMMISSION HELD OR

  AUTHORITY EXERCISED UNDER, THE UNITED STATES." 

WE DEAL HERE WITH A LIMITATION IMPOSED BY CONGRESS UPON THIS COURT'S
AUTHORITY TO REVIEW JUDGMENTS OF STATE COURTS.  IT IS A JURISDICTIONAL
LIMITATION, CARDINALE V. LOUISIANA, 394 U.S. 437, 438 (1969), THAT HAS
ALWAYS BEEN INTERPRETED WITH CAREFUL REGARD FOR THE DELICATE NATURE OF
THE AUTHORITY CONFERRED UPON THIS COURT TO REVIEW THE JUDGMENTS OF
STATE COURTS OF LAST RESORT: 

"UPON LIKE GROUNDS THE JURISDICTION OF THIS COURT TO REEXAMINE THE
FINAL JUDGMENT OF A STATE COURT CANNOT ARISE FROM MERE INFERENCE, BUT
ONLY FROM AVERMENTS SO DISTINCT AND POSITIVE AS TO PLACE IT BEYOND
QUESTION THAT THE PARTY BRINGING A CASE HERE FROM SUCH COURT INTENDED
TO ASSERT A FEDERAL RIGHT."  OXLEY STAVE CO. V. BUTLER COUNTY, 166 U.S.
648, 655 (1897). 

IN STREET V. NEW YORK, 394 U.S. 576 (1969), CITED BY THE COURT IN
ITS N. 3, THE FOLLOWING LANGUAGE FROM THE EARLIER CASE OF NEW YORK EX
REL. BRYANT V. ZIMMERMAN, 278 U.S. 63, 67 (1928), WAS QUOTED: 

"NO PARTICULAR FORM OF WORDS OR PHRASES IS ESSENTIAL, BUT ONLY THAT
THE CLAIM OF INVALIDITY AND THE GROUND THEREFOR BE BROUGHT TO THE
ATTENTION OF THE STATE COURT WITH FAIR PRECISION AND IN DUE TIME."  394
U.S.,AT 584. 

THE QUESTION OF WHETHER A CONSTITUTIONAL ISSUE HAS BEEN RAISED IN
"DUE TIME" IN THE STATE COURTS IS ONE GENERALLY LEFT TO STATE
PROCEDURE, SUBJECT TO THE IMPORTANT CONDITION THAT THE STATE PROCEDURE
GIVE NO INDICATION "THAT THERE WAS AN ATTEMPT ON THE PART OF THE STATE
COURT TO EVADE THE DECISION OF FEDERAL QUESTIONS, DULY SET UP, BY
UNWARRANTED RESORT TO ALLEGED RULES UNDER LOCAL PRACTICE."  LOUISVILLE
& NASHVILLE R. CO. V. WOODFORD, 234 U.S. 46, 51 (1914).  MORE RECENTLY,
THE COURT HAS STATED IN HENRY V. MISSISSIPPI, 379 U.S. 443, 447 (1965)
THAT: 

"THESE CASES SETTLE THE PROPOSITION THAT A LITIGANT'S PROCEDURAL
DEFAULTS IN STATE PROCEEDINGS DO NOT PREVENT VINDICATION OF HIS FEDERAL
RIGHTS UNLESS THE STATE'S INSISTENCE ON COMPLIANCE WITH ITS PROCEDURAL
RULES SERVES A LEGITIMATE STATE INTEREST." 

SINCE THE COURT IN HENRY WAS DEALING WITH A RULE OF TRIAL PROCEDURE
FROM THE STATE OF MISSISSIPPI, ITS ANALYSIS IN THAT CASE IS
PARTICULARLY HELPFUL IN DECIDING THIS ONE.  IT WAS CONCEDED BY ALL
PARTIES THERE THAT THE MISSISSIPPI RULES REQUIRED CONTEMPORANEOUS
OBJECTION TO EVIDENTIARY RULINGS, AND THIS COURT COMMENTED: 

     "THE MISSISSIPPI RULE . . . CLEARLY DOES SERVE A LEGITIMATE

  STATE INTEREST.  BY IMMEDIATELY APPRISING THE TRIAL JUDGE OF THE

  OBJECTION, COUNSEL GIVES THE COURT THE OPPORTUNITY TO CONDUCT THE

  TRIAL WITHOUT USING THE TAINTED EVIDENCE.  IF THE OBJECTION IS

  WELL TAKEN THE FRUITS OF THE ILLEGAL SEARCH MAY BE EXCLUDED FROM

JURY CONSIDERATION, AND A REVERSAL AND NEW TRIAL AVOIDED."  ID.,

  AT 448. 

IN THAT CASE, THE PETITIONER HAD MADE HIS MOTION TO EXCLUDE THE
EVIDENCE AT THE CLOSE OF THE STATE'S CASE, AND THIS COURT OBSERVED THAT
A RULING ON THE MOTION AT THAT POINT WOULD VERY LIKELY HAVE PREVENTED
THE POSSIBILITY OF REVERSAL AND NEW TRIAL JUST AS SURELY AS A RULING ON
A MOTION MADE CONTEMPORANEOUSLY WITH THE OFFER OF THE EVIDENCE. 

HERE, HOWEVER, THE RECORD OF THE STATE PROCEEDINGS SHOWS THAT THE
FIRST OCCASION ON WHICH PETITIONER'S COUNSEL EVEN HINTED THAT HIS
PREVIOUS EVIDENTIARY OBJECTION HAD A CONSTITUTIONAL BASIS WAS AT THE
TIME HE FILED A MOTION FOR NEW TRIAL.  BY DELAYING HIS CONSTITUTIONAL
CONTENTION UNTIL AFTER THE EVIDENCE WAS IN AND THE JURY HAD RETIRED AND
RETURNED A VERDICT OF GUILTY AGAINST HIM, PETITIONER DENIED THE TRIAL
COURT AN OPPORTUNITY TO RECONSIDER ITS EVIDENTIARY RULING IN THE LIGHT
OF THE CONSTITUTIONAL OBJECTION.  WHILE THIS COURT IN HENRY EXPRESSED
DOUBT AS TO THE ADEQUACY FOR FEDERAL PURPOSES OF MISSISSIPPI'S
DIFFERING TREATMENT OF A MOTION TO EXCLUDE AT THE CLOSE OF THE STATE'S
CASE AND AN OBJECTION MADE CONTEMPORANEOUSLY WITH THE OFFER OF THE
EVIDENCE, THERE CAN BE NO DOUBT THAT THE POLICY SUPPORTING
MISSISSIPPI'S REQUIREMENT OF CONTEMPORANEOUS OBJECTION CANNOT BE SERVED
EQUALLY WELL BY A MOTION FOR NEW TRIAL FOLLOWING THE RENDITION OF THE
JURY'S VERDICT. 

IT IS PERFECTLY TRUE, AS THE COURT STATES IN N. 3 OF ITS OPINION,
THAT PETITIONER "OBJECTED DURING TRIAL TO EACH OF THE COURT'S
RULINGS."  BUT THIS IS ONLY HALF THE TEST; THE LITIGANT SEEKING TO HAVE
A DECISION HERE ON A CONSTITUTIONAL CLAIM MUST NOT ONLY OBJECT OR
OTHERWISE ADVISE THE LOWER COURT OF HIS CLAIM THAT A RULING IS ERROR,
BUT HE MUST MAKE IT CLEAR THAT HIS CLAIM OF ERROR IS CONSTITUTIONALLY
GROUNDED.  IN BAILEY V. ANDERSON, 326 U.S. 203 (1945), THE PETITIONER
ARGUED IN THIS COURT THAT A STATE COURT CONDEMNATION AWARD THAT FAILED
TO INCLUDE INTEREST FROM THE DATE OF POSSESSION DENIED HIM JUST
COMPENSATION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THIS COURT NOTED THAT IN THE STATE CIRCUIT COURT PETITIONER
HAD REQUESTED THAT THE AWARD INCLUDE INTEREST FROM THE DATE OF TAKING,
AND THAT THE CIRCUIT COURT WITHOUT EXPLANATION HAD REJECTED THIS
CLAIM.  BUT THIS COURT WENT ON TO SAY: 

"BUT THROUGHOUT THE PROCEEDINGS IN THE CIRCUIT COURT APPELLANT MADE
NO CLAIM TO INTEREST ON CONSTITUTIONAL GROUNDS, AND MADE NO ATTACK ON
THE CONSTITUTIONALITY OF THE AWARD OR THE COURT'S DECREE BECAUSE OF THE
ASSERTED DENIAL OF INTEREST."  ID., AT 206.  CONCLUDING FROM AN
EXAMINATION OF THE OPINION OF THE SUPREME COURT OF APPEALS OF VIRGINIA
THAT ALTHOUGH APPELLANT HAD RAISED HIS CONSTITUTIONAL CLAIM THERE, IT
HAD NOT BEEN PASSED UPON BY THAT COURT, THIS COURT HELD THAT THE
"APPEAL MUST BE DISMISSED FOR WANT OF ANY PROPERLY PRESENTED
SUBSTANTIAL FEDERAL QUESTION."  ID., AT 207. 

NEITHER THE MAJORITY NOR THE DISSENTING OPINIONS OF THE SUPREME
COURT OF MISSISSIPPI CONTAIN ONLY ONE SYLLABLE THAT REFERS EXPRESSLY OR
BY IMPLICATION TO ANY CLAIM BASED ON THE CONSTITUTION OF THE UNITED
STATES.  THOSE OPINIONS DID, OF COURSE, TREAT THE EVIDENTIARY
OBJECTIONS AND PROFFERS THAT THIS COURT NOW HOLDS TO BE OF
CONSTITUTIONAL DIMENSION, BUT IT PASSED ON THEM IN TERMS OF
NONCONSTITUTIONAL EVIDENTIARY QUESTIONS THAT ARE ONE OF THE STAPLES OF
THE BUSINESS OF APPELLATE COURTS THAT REGULARLY REVIEW CLAIMS OF ERROR
IN THE CONDUCT OF TRIAL.  SINCE MISSISSIPPI REQUIRES CONTEMPORANEOUS
OBJECTION TO EVIDENTIARY RULINGS DURING THE TRIAL, IT WOULD HAVE BEEN
ENTIRELY PROPER FOR THE SUPREME COURT OF MISSISSIPPI TO CONCLUDE THAT
EVEN THOUGH PETITIONER MIGHT HAVE ASSERTED CONSTITUTIONAL CLAIMS IN HIS
BRIEF THERE, THEY HAD BEEN RAISED TOO LATE TO REQUIRE CONSIDERATION BY
IT. 

THIS COURT SAID IN STREET V. NEW YORK: 

"MOREOVER, THIS COURT HAS STATED THAT WHEN, AS HERE, THE HIGHEST
STATE COURT HAS FAILED TO PASS UPON A FEDERAL QUESTION, IT WILL BE
ASSUMED THAT THE OMISSION WAS DUE TO WANT OF PROPER PRESENTATION IN THE
STATE COURTS, UNLESS THE AGGRIEVED PARTY IN THIS COURT CAN
AFFIRMATIVELY SHOW THE CONTRARY."  394 U.S.,AT 582. 

IF, BY SOME EXTRAORDINARILY LENIENT CONSTRUCTION OF THE DECISIONAL
REQUIREMENT THAT THE CONSTITUTIONAL CLAIM BE MADE "IN DUE TIME" IN THE
STATE PROCEEDINGS, THE MAKING OF SUCH A CLAIM FOR THE FIRST TIME IN A
MOTION FOR A NEW TRIAL WERE DEEMED TIMELY, IT IS STILL EXTRAORDINARILY
DOUBTFUL THAT THIS PETITIONER ADEQUATELY RAISED ANY CONSTITUTIONAL
CLAIMS IN HIS MOTION FOR NEW TRIAL.  THAT MOTION CONSISTED OF THE
FOLLOWING PERTINENT POINTS: 

     "3RD, THE COURT ERRED IN REFUSING TO DECLARE GABLE MCDONALD A

  HOSTILE AND ADVERSE WITNESS AND PERMITTING THE DEFENDANT TO

  PROPOUND LEADING QUESTIONS AS ONE CROSS-EXAMINATION. 

      "4TH, THE COURT ERRED IN REFUSING TO PERMIT THE DEFENDANT TO

  INTRODUCE EVIDENCE CORROBORATING THE ADMISSION OF GABLE MCDONALD

  ADMITTING THE KILLING OF AARON LIBERTY. 

        .          .          .          . 

     "6TH, THE TRIAL OF THE DEFENDANT WAS NOT IN ACCORD WITH

  FUNDAMENTAL FAIRNESS GUARANTEED BY THE FOURTEENTH AMENDMENT OF

 THE CONSTITUTION OF THE UNITED STATES AND ARTICLE THREE, SECTIONS

  FOURTEEN AND TWENTY-SIX OF THE CONSTITUTION OF THE STATE OF

  MISSISSIPPI." 

IT WOULD HAVE TO BE AN EXTRAORDINARILY PERCEPTIVE TRIAL JUDGE WHO
COULD GLEAN FROM THIS MOTION THAT THE SEPARATELY STATED THIRD AND
FOURTH POINTS, DEALING AS THEY DO IN CUSTOMARY TERMS OF CLAIMS OF TRIAL
ERROR IN THE EXCLUSION OR ADMISSION OF EVIDENCE, WERE INTENDED TO BE
BOLSTERED BY THE GENERALIZED ASSERTION OF THE VIOLATION OF DUE PROCESS
CONTAINED IN A SEPARATELY STATED POINT.  THE CONTENTION OF THE SIXTH
POINT, STANDING BY ITSELF, THAT "THE TRIAL OF THE DEFENDANT WAS NOT IN
ACCORD WITH FUNDAMENTAL FAIRNESS GUARANTEED BY THE FOURTEENTH AMENDMENT
OF THE CONSTITUTION OF THE UNITED STATES" DIRECTS THE TRIAL COURT TO NO
PARTICULAR RULING OR DECISION THAT HE MAY HAVE MADE DURING THE TRIAL;
IT IS A BALD ASSERTION THAT THE TRIAL FROM BEGINNING TO END WAS SOMEHOW
FUNDAMENTALLY UNFAIR.  EVEN THE MOST LENIENT CONSTRUCTION OF THAT PART
OF 28 U.S.C. 1257 THAT REQUIRES THAT THE "TITLE, RIGHT, PRIVILEGE OR
IMMUNITY" BE "SPECIALLY SET UP OR CLAIMED" COULD NOT AID PETITIONER IN
HIS CLAIM THAT THIS POINT PROPERLY RAISED A FEDERAL CONSTITUTIONAL
ISSUE. 

THIS COURT UNDER THE CONSTITUTION HAS THE EXTRAORDINARILY DELICATE
BUT EQUALLY NECESSARY AUTHORITY TO REVIEW JUDGMENTS OF STATE COURTS OF
LAST RESORT ON ISSUES THAT TURN ON CONSTRUCTION OF THE UNITED STATES
CONSTITUTION OR FEDERAL LAW.  BUT BEFORE WE UNDERTAKE TO TELL A STATE
COURT OF LAST RESORT THAT ITS JUDGMENT IS INCONSISTENT WITH THE MANDATE
OF THE CONSTITUTION, IT BEHOOVES US TO MAKE CERTAIN THAT IN DOING SO WE
ADHERE TO THE CONGRESSIONAL MANDATE THAT LIMITS OUR JURISDICTION. 
BELIEVING AS I DO THAT PETITIONER HAS NOT COMPLIED WITH 28 U.S.C.
1257(3), I WOULD DISMISS THE WRIT OF CERTIORARI. 

/1/  THE TRIAL COURT ON REMAND FROM THE 1965 HENRY DECISION, 253
MISS.  283, 174 SO.2D 348, FOUND THERE HAD BEEN DELIBERATE BYPASS, AND,
AFFIRMING ON APPEAL, 198 SO.2D 213(1967), THE MISSISSIPPI SUPREME COURT
DID NOT MENTION BROOKS V. STATE, 209 MISS.  150, 46 SO.2D 94(1950), OR
THE RULE FOR LIKE CASES. 

PETER WESTEN ARGUED THE CAUSE FOR PETITIONER PRO HAC VICE.  WITH HIM
ON THE BRIEFS WAS RAMSEY CLARK. 

TIMMIE HANCOCK, SPECIAL ASSISTANT ATTORNEY GENERAL OF MISSISSIPPI,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE A. F.
SUMMER, ATTORNEY GENERAL, AND GUY N. ROGERS, ASSISTANT ATTORNEY
GENERAL. 
..END :























MAHAN V. HOWELL, 410 U.S. 315 


       MAHAN, SECRETARY, STATE BOARD OF ELECTIONS, ET AL. V. HOWELL

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF VIRGINIA

        NO. 71-364.  ARGUED DECEMBER 12, 1972-- DECIDED FEBRUARY
21,

           1973  /0/ 


THE VIRGINIA GENERAL ASSEMBLY IN 1971 REAPPORTIONED THE STATE FOR THE
ELECTION OF STATE DELEGATES AND SENATORS.  THE APPORTIONMENT STATUTES,
ON CHALLENGE BY APPELLEES, WERE INVALIDATED BY A THREE-JUDGE DISTRICT
COURT, WHICH RULED THE REAPPORTIONMENTS IMPERMISSIBLE VIOLATIONS OF THE
"ONE PERSON, ONE VOTE" PRINCIPLE.  THE COURT SUBSTITUTED ITS OWN
ELECTORAL DISTRICTS, REDUCING TO ABOUT 10% THE PERCENTAGE VARIATION
FROM THE IDEAL DISTRICT FROM THE APPROXIMATELY 16% VARIATION PERMITTED
BY THE LEGISLATURE'S PLAN BUT, CONTRARY TO THAT PLAN, IN MANY INSTANCES
NOT FOLLOWING POLITICAL SUBDIVISION LINES.  HELD: 

1.  REAPPORTIONMENT OF ELECTORAL DISTRICTS FOR VIRGINIA'S HOUSE OF
DELEGATES COMPLIED WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, SINCE THE LEGISLATURE'S MAXIMUM POPULATION PERCENTAGE
VARIATION, WHICH WAS NOT EXCESSIVE, RESULTED FROM THE STATE'S RATIONAL
OBJECTIVE OF PRESERVING THE INTEGRITY OF POLITICAL SUBDIVISION LINES. 
PP. 320-330. 

(A) IN THE IMPLEMENTATION OF THE BASIC CONSTITUTIONAL PRINCIPLE THAT
BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE BE APPORTIONED
SUBSTANTIALLY ON A POPULATION BASIS (REYNOLDS V. SIMS, 377 U.S. 533),
MORE FLEXIBILITY IS PERMISSIBLE WITH RESPECT TO STATE LEGISLATIVE
REAPPORTIONMENT THAN WITH RESPECT TO CONGRESSIONAL REDISTRICTING.  PP.
320-325. 

(B) THE STATE'S OBJECTIVE OF PRESERVING THE INTEGRITY OF POLITICAL
SUBDIVISION LINES IS RATIONAL SINCE IT FURTHERS THE LEGISLATIVE PURPOSE
OF FACILITATING ENACTMENT OF STATUTES OF PURELY LOCAL CONCERN AND
PRESERVES FOR THE VOTERS IN THE POLITICAL SUBDIVISIONS A VOICE IN THE
STATE LEGISLATURE ON LOCAL MATTERS.  PP. 325-328. 

(C) GIVEN THE WIDER CONSTITUTIONAL LATITUDE IN STATE LEGISLATIVE
REAPPORTIONMENT, THE POPULATION DISPARITIES REFLECTED IN THE
LEGISLATURE'S MAXIMUM PERCENTAGE DEVIATION ARE WITHIN TOLERABLE
CONSTITUTIONAL LIMITS.  PP. 328-330. 

2.  THE ESTABLISHMENT BY THE LEGISLATURE OF THREE NUMERICALLY IDEAL
SENATORIAL ELECTORAL DISTRICTS BY ASSIGNING TO ONE OF THEM ABOUT 36,700
PERSONS WHO WERE "HOME-PORTED" AT THE U.S. NAVAL STATION, NORFOLK,
REGARDLESS OF WHERE THEY ACTUALLY RESIDED, BECAUSE THAT IS WHERE THEY
WERE COUNTED ON OFFICIAL CENSUS TRACTS, WAS CONSTITUTIONALLY
IMPERMISSIBLE DISCRIMINATION AGAINST MILITARY PERSONNEL, CF. DAVIS V.
MANN, 377 U.S. 678; AND THE DISTRICT COURT, WHICH WAS UNDER SEVERE TIME
PRESSURES, DID NOT ABUSE ITS DISCRETION IN PRESCRIBING AN INTERIM PLAN
OF COMBINING THE THREE DISTRICT INTO ONE MULTIMEMBER DISTRICT.  PP. 330
333. 

330 F.SUPP.  1138, AFFIRMED IN PART, REVERSED IN PART. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWARD, WHITE, AND BLACKMUN, JJ., JOINED.  BRENNAN, J.,
FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, IN WHICH
DOUGLAS AND MARSHALL, JJ., JOINED, POST, P. 333.  POWELL, J., TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THE CASES. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

ACTING PURSUANT TO THE MANDATE OF ITS NEWLY REVISED STATE
CONSTITUTION, /1/  THE VIRGINIA GENERAL ASSEMBLY ENACTED STATUTES
APPORTIONING THE STATE FOR THE ELECTION OF MEMBERS OF ITS HOUSE OF
DELEGATES /2/  AND SENATE.  /3/  TWO SUITS WERE BROUGHT CHALLENGING THE
CONSTITUTIONALITY OF THE HOUSE REDISTRICTING STATUTE ON THE GROUNDS
THAT THERE WERE IMPERMISSIBLE POPULATION VARIANCES IN THE DISTRICTS,
THAT THE MULTIMEMBER DISTRICTS DILUTED REPRESENTATION, /4/  AND THAT
THE USE OF MULTIMEMBER DISTRICTS CONSTITUTED RACIAL GERRYMANDERING. 
/5/  THE SENATE REDISTRICTING STATUTE WAS ATTACHED IN A SEPARATE SUIT,
WHICH ALLEGED THAT THE CITY OF NORFOLK WAS UNCONSTITUTIONALLY SPLIT
INTO THREE DISTRICTS, ALLOCATING NAVY PERSONNEL "HOME-PORTED" IN
NORFOLK TO ONE DISTRICT AND ISOLATING NEGRO VOTERS IN ONE DISTRICT. 
THREE-JUDGE DISTRICT COURTS WERE CONVENED TO HEAR THE SUITS PURSUANT TO
28 U.S.C. 2281 AND 2284.  THE SUITS WERE CONSOLIDATED AND HEARD BY THE
FOUR JUDGES WHO VARIOUSLY MADE UP THE THREE THREE-JUDGE PANELS. 

THE CONSOLIDATED DISTRICT COURT ENTERED AN INTERLOCUTORY ORDER THAT,
INTER ALIA, DECLARED THE LEGISLATIVE REAPPORTIONMENT STATUTES
UNCONSTITUTIONAL AND ENJOINED THE HOLDING OF ELECTIONS IN ELECTORAL
DISTRICTS OTHER THAN THOSE ESTABLISHED BY THE COURT'S OPINION.  HOWELL
V. MAHAN, 330 F.SUPP.  1138, 1150 (ED VA. 1971).  APPELLANTS, THE
SECRETARY OF THE STATE BOARD OF ELECTIONS AND ITS MEMBERS AND THE CITY
OF VIRGINIA BEACH, HAVE APPEALED DIRECTLY TO THIS COURT FROM THOSE
PORTIONS OF THE COURT'S ORDER, INVOKING OUR JURISDICTION UNDER 28
U.S.C. 1253. 

        I 

THE STATUTE APPORTIONING THE HOUSE PROVIDED FOR A COMBINATION OF 52
SINGLE-MEMBER, MULTIMEMBER, AND FLOATER DELEGATE DISTRICTS FROM WHICH
100 DELEGATES WOULD BE ELECTED.  AS FOUND BY THE LOWER COURT, THE IDEAL
DISTRICT IN VIRGINIA CONSISTED OF 46,485 PERSONS PER DELEGATE, AND THE
MAXIMUM PERCENTAGE VARIATION FROM THAT IDEAL UNDER THE ACT WAS 16.4%--
THE 12TH DISTRICT BEING OVERREPRESENTED BY 6.8% AND THE 16TH DISTRICT
BEING UNDERREPRESENTED BY 9.6%.  /6/  THE POPULATION RATIO BETWEEN
THESE TWO DISTRICTS WAS 1.18 TO 1.  THE AVERAGE PERCENTAGE VARIANCE
UNDER THE PLAN WAS PLUS OR MINUS 3.89%, AND THE MINIMUM POPULATION
PERCENTAGE NECESSARY TO ELECT A MAJORITY OF THE HOUSE WAS 49.29%.  OF
THE 52 DISTRICTS, 35 WERE WITHIN 4% OF PERFECTION AND NINE EXCEEDED A
6% VARIANCE FROM THE IDEAL.  WITH ONE EXCEPTION, THE DELEGATE DISTRICTS
FOLLOWED POLITICAL JURISDICTIONAL LINES OF THE COUNTIES AND CITIES. 
THAT EXCEPTION, FAIRFAX COUNTY, WAS ALLOTTED 10 DELEGATES BUT WAS
DIVIDED INTO TWO FIVE-MEMBER DISTRICTS. 

RELYING ON KIRKPATRICK V. PREISLER, 394 U.S. 526 (1969), WELLS V.
ROCKEFELLER, 394 U.S. 542(1969), AND REYNOLDS V. SIMS, 377 U.S.
533(1964), THE DISTRICT COURT CONCLUDED THAT THE 16.4% VARIATION WAS
SUFFICIENT TO CONDEMN THE HOUSE STATUTE UNDER THE "ONE PERSON, ONE
VOTE" DOCTRINE.  WHILE IT NOTED THAT THE VARIANCES WERE TRACEABLE TO
THE DESIRE OF THE GENERAL ASSEMBLY TO MAINTAIN THE INTEGRITY OF
TRADITIONAL COUNTY AND CITY BOUNDARIES, AND THAT IT WAS IMPOSSIBLE TO
DRAFT DISTRICT LINES TO OVERCOME UNCONSTITUTIONAL DISPARITIES AND STILL
MAINTAIN SUCH INTEGRITY, IT HELD THAT THE STATE PROVED NO GOVERNMENTAL
NECESSITY FOR STRICTLY ADHERING TO POLITICAL SUBDIVISION LINES. 
ACCORDINGLY, IT UNDERTOOK ITS OWN REDISTRICTING AND DEVISED A PLAN
HAVING A PERCENTAGE VARIATION OF SLIGHTLY OVER 10% FROM THE IDEAL
DISTRICT, A PERCENTAGE IT BELIEVED CAME "WITHIN PASSABLE CONSTITUTIONAL
LIMITS AS 'A GOOD-FAITH EFFORT TO ACHIEVE ABSOLUTE EQUALITY." 
KIRKPATRICK V. PREISLER . . . "  HOWELL V. MAHAN, 330 F.SUPP., AT 1147
1148. 

APPELLANTS CONTEND THAT THE DISTRICT COURT'S RELIANCE ON KIRKPATRICK
V. PREISLER, SUPRA, AND WELLS V. ROCKEFELLER, SUPRA, IN STRIKING DOWN
THE GENERAL ASSEMBLY'S REAPPORTIONMENT PLAN WAS ERRONEOUS, AND THAT
PROPER APPLICATION OF THE STANDARDS ENUNCIATED IN REYNOLDS V. SIMS,
SUPRA, WOULD HAVE RESULTED IN A FINDING THAT THE STATUTE WAS
CONSTITUTIONAL. 

IN KIRKPATRICK V. PREISLER AND WELLS V. ROCKEFELLER, THIS COURT
INVALIDATED STATE REAPPORTIONMENT STATUTES FOR FEDERAL CONGRESSIONAL
DISTRICTS HAVING MAXIMUM PERCENTAGE DEVIATIONS OF 5.97% AND 13.1%
RESPECTIVELY.  THE EXPRESS PURPOSE OF THESE CASES WAS TO ELUCIDATE THE
STANDARD FIRST ANNOUNCED IN THE HOLDING OF WESBERRY V. SANDERS, 376
U.S. 1 (1964), THAT "THE COMMAND OF ART. I, SEC. 2, THAT
REPRESENTATIVES BE CHOSEN 'BY THE PEOPLE OF THE SEVERAL STATES' MEANS
THAT AS NEARLY AS IS PRACTICABLE ONE MAN'S VOTE IN A CONGRESSIONAL
ELECTION IS TO BE WORTH AS MUCH AS ANOTHER'S."  ID., AT 7-8 (FOOTNOTES
OMITTED).  AND IT WAS CONCLUDED THAT THAT COMMAND "PERMITS ONLY THE
LIMITED POPULATION VARIANCES WHICH ARE UNAVOIDABLE DESPITE A GOOD-FAITH
EFFORT TO ACHIEVE ABSOLUTE EQUALITY, OR FOR WHICH JUSTIFICATION IS
SHOWN."  KIRKPATRICK V. PREISLER, SUPRA, AT 531.  THE PRINCIPAL
QUESTION THUS PRESENTED FOR REVIEW IS WHETHER OR NOT THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT LIKEWISE PERMITS ONLY
"THE LIMITED POPULATION VARIANCES WHICH ARE UNAVOIDABLE DESPITE A GOOD
FAITH EFFORT TO ACHIEVE ABSOLUTE EQUALITY" IN THE CONTEXT OF STATE
LEGISLATIVE REAPPORTIONMENT.  /7/ 

THIS COURT FIRST RECOGNIZED THAT THE EQUAL PROTECTION CLAUSE
REQUIRES BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE TO BE APPORTIONED
SUBSTANTIALLY ON A POPULATION BASIS IN REYNOLDS V. SIMS, SUPRA.  IN SO
DOING, IT SUGGESTED THAT IN THE IMPLEMENTATION OF THE BASIC
CONSTITUTIONAL PRINCIPLE-- EQUALITY OF POPULATION AMONG THE DISTRICTS--
MORE FLEXIBILITY WAS CONSTITUTIONALLY PERMISSIBLE WITH RESPECT TO STATE
LEGISLATIVE REAPPORTIONMENT THAN IN CONGRESSIONAL REDISTRICTING.  ID.,
AT 578.  CONSIDERATION WAS GIVEN TO THE FACT THAT, ALMOST INVARIABLY,
THERE IS A SIGNIFICANTLY LARGER NUMBER OF SEATS IN STATE LEGISLATIVE
BODIES TO BE DISTRIBUTED WITHIN A STATE THAN CONGRESSIONAL SEATS, AND
THAT THEREFORE IT MAY BE FEASIBLE FOR A STATE TO USE POLITICAL
SUBDIVISION LINES TO A GREATER EXTENT IN ESTABLISHING STATE LEGISLATIVE
DISTRICTS THAN CONGRESSIONAL DISTRICTS WHILE STILL AFFORDING ADEQUATE
STATEWIDE REPRESENTATION.  IBID.  ANOTHER POSSIBLE JUSTIFICATION FOR
DEVIATION FROM POPULATION-BASED REPRESENTATION IN STATE LEGISLATURES
WAS STATED TO BE: 

"(THAT OF INSURING SOME VOICE TO POLITICAL SUBDIVISIONS, AS
POLITICAL SUBDIVISIONS.  SEVERAL FACTORS MAKE MORE THAN INSUBSTANTIAL
CLAIMS THAT A STATE CAN RATIONALLY CONSIDER ACCORDING POLITICAL
SUBDIVISIONS SOME INDEPENDENT REPRESENTATION IN AT LEAST ONE BODY OF
THE STATE LEGISLATURE, AS LONG AS THE BASIC STANDARD OF EQUALITY OF
POPULATION AMONG DISTRICTS IS MAINTAINED.  LOCAL GOVERNMENTAL ENTITIES
ARE FREQUENTLY CHARGED WITH VARIOUS RESPONSIBILITIES INCIDENT TO THE
OPERATION OF STATE GOVERNMENT.  IN MANY STATES MUCH OF THE
LEGISLATURE'S ACTIVITY INVOLVES THE ENACTMENT OF SO-CALLED LOCAL
LEGISLATION, DIRECTED ONLY TO THE CONCERNS OF PARTICULAR SUBDIVISIONS. 
AND A STATE MAY LEGITIMATELY DESIRE TO CONSTRUCT DISTRICTS ALONG
POLITICAL SUBDIVISION LINES TO DETER THE POSSIBILITIES OF
GERRYMANDERING . . . "  ID., AT 580-581.  THE COURT REITERATED THAT THE
OVERRIDING OBJECTIVE IN REAPPORTIONMENT MUST BE "SUBSTANTIAL EQUALITY
OF POPULATION AMONG THE VARIOUS DISTRICTS, SO THAT THE VOTE OF ANY
CITIZEN IS APPROXIMATELY EQUAL IN WEIGHT TO THAT OF ANY OTHER CITIZEN
IN THE STATE."  ID., AT 579. 

BY CONTRAST, THE COURT IN WESBERRY V. SANDERS, SUPRA, RECOGNIZED NO
EXCUSE FOR THE FAILURE TO MEET THE OBJECTIVE OF EQUAL REPRESENTATION
FOR EQUAL NUMBERS OF PEOPLE IN CONGRESSIONAL DISTRICTING OTHER THAN THE
PRACTICAL IMPOSSIBILITY OF DRAWING EQUAL DISTRICTS WITH MATHEMATICAL
PRECISION.  THUS, WHEREAS POPULATION ALONE HAS BEEN THE SOLE CRITERION
OF CONSTITUTIONALITY IN CONGRESSIONAL REDISTRICTING UNDER ART. I, SEC.
2, BROADER LATITUDE HAS BEEN AFFORDED THE STATES UNDER THE EQUAL
PROTECTION CLAUSE IN STATE LEGISLATIVE REDISTRICTING BECAUSE OF THE
CONSIDERATIONS ENUMERATED IN REYNOLDS V. SIMS, SUPRA.  THE DICHOTOMY
BETWEEN THE TWO LINES OF CASES HAS CONSISTENTLY BEEN MAINTAINED.  IN
KIRKPATRICK V. PREISLER, FOR EXAMPLE, ONE ASSERTED JUSTIFICATION FOR
POPULATION VARIANCES WAS THAT THEY WERE NECESSARILY A RESULT OF THE
STATE'S ATTEMPT TO AVOID FRAGMENTING POLITICAL SUBDIVISIONS BY DRAWING
CONGRESSIONAL DISTRICT LINES ALONG EXISTING POLITICAL SUBDIVISION
BOUNDARIES.  THIS ARGUMENT WAS REJECTED IN THE CONGRESSIONAL CONTEXT. 
BUT IN ABATE V. MUNDT, 403 U.S. 182(1971), AN APPORTIONMENT FOR A
COUNTY LEGISLATURE HAVING A MAXIMUM DEVIATION FROM EQUALITY OF 11.9%
WAS UPHELD IN THE FACE OF AN EQUAL PROTECTION CHALLENGE, IN PART
BECAUSE NEW YORK HAD A LONG HISTORY OF MAINTAINING THE INTEGRITY OF
EXISTING LOCAL GOVERNMENT UNITS WITHIN THE COUNTY. 

APPLICATION OF THE "ABSOLUTE EQUALITY" TEST OF KIRKPATRICK AND WELLS
TO STATE LEGISLATIVE REDISTRICTING MAY IMPAIR THE NORMAL FUNCTIONING OF
STATE AND LOCAL GOVERNMENTS.  SUCH AN EFFECT IS READILY APPARENT FROM
AN ANALYSIS OF THE DISTRICT COURT'S PLAN IN THIS CASE.  UNDER ART. VII,
SECS. 2 AND 3 OF VIRGINIA'S CONSTITUTION, THE GENERAL ASSEMBLY IS GIVEN
EXTENSIVE POWER TO ENACT SPECIAL LEGISLATION REGARDING THE ORGANIZATION
OF, AND THE EXERCISE OF GOVERNMENTAL POWERS BY, COUNTIES, CITIES,
TOWNS, AND OTHER POLITICAL SUBDIVISIONS.  THE STATUTE REDISTRICTING THE
HOUSE OF DELEGATES CONSISTENTLY SOUGHT TO AVOID THE FRAGMENTATION OF
SUCH SUBDIVISIONS, ASSERTEDLY TO AFFORD THEM A VOICE IN RICHMOND TO
SEEK SUCH LOCAL LEGISLATION. 

THE COURT'S REAPPORTIONMENT, BASED ON ITS APPLICATION OF KIRKPATRICK
AND WELLS, RESULTED IN A MAXIMUM DEVIATION OF SLIGHTLY OVER 10%, /8/
AS COMPARED WITH THE ROUGHLY 16% MAXIMUM VARIATION FOUND IN THE PLAN
ADOPTED BY THE LEGISLATURE.  BUT TO ACHIEVE EVEN THIS LIMIT OF
VARIATION, THE COURT'S PLAN EXTENDED SINGLE AND MULTIMEMBER DISTRICTS
ACROSS SUBDIVISION LINES IN 12 INSTANCES, SUBSTITUTING POPULATION
EQUALITY FOR SUBDIVISION REPRESENTATION.  SCOTT COUNTY, FOR EXAMPLE,
UNDER THE ASSEMBLY'S PLAN WAS PLACED IN THE FIRST DISTRICT AND ITS
POPULATION OF 24,376 VOTED WITH THE 76,346 PERSONS IN DICKINSON, LEE,
AND WISE COUNTIES FOR TWO DELEGATES.  THE DISTRICT THUS ESTABLISHED
DEVIATED BY 8.3% FROM THE IDEAL.  THE COURT TRANSFERRED FIVE OF SCOTT
COUNTY'S ENUMERATION DISTRICTS, CONTAINING 6,063 PERSONS, TO THE
CONTIGUOUS SECOND DISTRICT COMPOSED OF THE CITY OF BRISTOL, AND SMYTH
AND WASHINGTON COUNTIES, POPULATION 87,041.  SCOTT COUNTY'S
REPRESENTATION WAS THEREBY SUBSTANTIALLY REDUCED IN THE FIRST DISTRICT,
AND ALL BUT NONEXISTENT IN THE SECOND DISTRICT.  THE OPPORTUNITY OF ITS
VOTERS TO CHAMPION LOCAL LEGISLATION RELATING TO SCOTT COUNTY IS
VIRTUALLY NIL.  THE COUNTERVAILING BENEFIT RESULTING FROM THE COURT'S
READJUSTMENT IS THE FACT THAT THE FIRST DISTRICT'S DEVIATION FROM THE
IDEAL IS NOW REDUCED TO 1.8%. 

THE CITY OF VIRGINIA BEACH SAW ITS POSITION DETERIORATE IN A SIMILAR
MANNER UNDER THE COURT-IMPOSED PLAN.  UNDER THE LEGISLATIVE PLAN,
VIRGINIA BEACH CONSTITUTED THE 40TH DISTRICT AND WAS ALLOCATED THREE
DELEGATES FOR ITS POPULATION OF 172,106.  THE RESULTING
UNDERREPRESENTATION WAS CURED BY PROVIDING A FLOTERIAL DISTRICT, THE
42D, WHICH ALSO INCLUDED PORTIONS OF THE CITIES OF CHESAPEAKE AND
PORTSMOUTH.  UNDER THE COURT'S PLAN, THE 42D DISTRICT WAS DISSOLVED. 
OF ITS 32,651 PERSONS THAT CONSTITUTED THE DEVIATION FROM THE IDEAL FOR
THE 40TH DISTRICT, 3,515 WERE PLACED IN THE 40TH, AND 29,136 WERE
TRANSFERRED TO NORFOLK'S 39TH DISTRICT.  THE 39TH DISTRICT IS A
MULTIMEMBER DISTRICT THAT INCLUDES THE 307,951 PERSONS WHO MAKE UP THE
POPULATION OF THE CITY OF NORFOLK.  THUS, THOSE VIRGINIA BEACH
RESIDENTS WHO CAST THEIR VOTE IN THE 39TH DISTRICT AMOUNT TO ONLY 8.6%
OF THE DISTRICT'S POPULATION.  IN TERMS OF PRACTICAL POLITICS. 
VIRGINIA BEACH COMPLAINS THAT SUCH REPRESENTATION IS NO REPRESENTATION
AT ALL SO FAR AS LOCAL LEGISLATION IS CONCERNED, AND THAT THOSE 29,136
PEOPLE TRANSFERRED TO THE 39TH DISTRICT HAVE IN THEIR RESPECT BEEN
EFFECTIVELY DISENFRANCHISED. 

WE CONCLUDE, THEREFORE, THAT THE CONSTITUTIONALITY OF VIRGINIA'S
LEGISLATIVE REDISTRICTING PLAN WAS NOT TO BE JUDGED BY THE MORE
STRINGENT STANDARDS THAT KIRKPATRICK AND WELLS MAKE APPLICABLE TO
CONGRESSIONAL REAPPORTIONMENT, BUT INSTEAD BY THE EQUAL PROTECTION TEST
ENUNCIATED IN REYNOLDS V. SIMS, SUPRA.  WE REAFFIRM ITS HOLDING THAT
"THE EQUAL PROTECTION CLAUSE REQUIRES THAT A STATE MAKE AN HONEST AND
GOOD FAITH EFFORT TO CONSTRUCT DISTRICTS, IN BOTH HOUSES OF ITS
LEGISLATURE, AS NEARLY OF EQUAL POPULATION AS IS PRACTICABLE."  377
U.S., AT 577.  WE LIKEWISE REAFFIRM ITS CONCLUSION THAT "(SO LONG AS
THE DIVERGENCES FROM A STRICT POPULATION STANDARD ARE BASED ON
LEGITIMATE CONSIDERATIONS INCIDENT TO THE EFFECTUATION OF A RATIONAL
STATE POLICY, SOME DEVIATIONS FROM THE EQUAL-POPULATION PRINCIPLE ARE
CONSTITUTIONALLY PERMISSIBLE WITH RESPECT TO THE APPORTIONMENT OF SEATS
IN EITHER OR BOTH OF THE TWO HOUSES OF A BICAMERAL STATE LEGISLATURE." 
ID., AT 579. 

THE ASSERTED JUSTIFICATION FOR THE DIVERGENCES IN THIS CASE-- THE
STATE'S POLICY OF MAINTAINING THE INTEGRITY OF POLITICAL SUBDIVISION
LINES-- IS NOT A NEW ONE TO THIS COURT.  IN DAVIS V. MANN, 377 U.S.
678, 686(1964), IT WAS NOTED:     "BECAUSE CITIES AND COUNTIES HAVE
CONSISTENTLY NOT BEEN SPLIT OR DIVIDED FOR PURPOSES OF LEGISLATIVE
REPRESENTATION, MULTIMEMBER DISTRICTS HAVE BEEN UTILIZED FOR CITIES AND
COUNTIES WHOSE POPULATIONS ENTITLE THEM TO MORE THAN A SINGLE
REPRESENTATIVE . . . AND, BECAUSE OF A TRADITION OF RESPECTING THE
INTEGRITY OF THE BOUNDARIES OF CITIES AND COUNTIES IN DRAWING DISTRICT
LINES, DISTRICTS HAVE BEEN CONSTRUCTED ONLY OF COMBINATIONS OF COUNTIES
AND CITIES AND NOT BY PIECES OF THEM . . . " 

THE THEN-EXISTING SUBSTANTIAL DEVIATION IN THE APPORTIONMENT OF BOTH
HOUSES DEFEATED THE CONSTITUTIONALITY OF VIRGINIA'S DISTRICTING
STATUTES IN THAT CASE, BUT THE POSSIBILITY OF MAINTAINING THE INTEGRITY
OF POLITICAL SUBDIVISION LINES IN DISTRICTING WAS NOT PRECLUDED SO LONG
AS THERE EXISTED "SUCH MINOR DEVIATIONS ONLY AS MAY OCCUR IN
RECOGNIZING CERTAIN FACTORS THAT ARE FREE FROM ANY TAINT OF
ARBITRARINESS OR DISCRIMINATION."  ROMAN V. SINCOCK, 377 U.S. 695,
710(1964). 

WE ARE NOT PREPARED TO SAY THAT THE DECISION OF THE PEOPLE OF
VIRGINIA TO GRANT THE GENERAL ASSEMBLY THE POWER TO ENACT LOCAL
LEGISLATION DEALING WITH THE POLITICAL SUBDIVISIONS IS IRRATIONAL.  AND
IF THAT BE SO, DECISION OF THE GENERAL ASSEMBLY TO PROVIDE
REPRESENTATION TO SUBDIVISIONS QUA SUBDIVISIONS IN ORDER TO IMPLEMENT
THAT CONSTITUTIONAL POWER IS LIKEWISE VALID WHEN MEASURED AGAINST THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THE INQUIRY THEN
BECOMES WHETHER IT CAN REASONABLY BE SAID THAT THE STATE POLICY URGED
BY VIRGINIA TO JUSTIFY THE DIVERGENCES IN THE LEGISLATIVE
REAPPORTIONMENT PLAN OF THE HOUSE IS, INDEED, FURTHERED BY THE PLAN
ADOPTED BY THE LEGISLATURE, AND WHETHER, IF SO JUSTIFIED, THE
DIVERGENCES ARE ALSO WITHIN TOLERABLE LIMITS.  FOR A STATE'S POLICY
URGED IN JUSTIFICATION OF DISPARITY IN DISTRICT POPULATION, HOWEVER
RATIONAL, CANNOT CONSTITUTIONALLY BE PERMITTED TO EMASCULATE THE GOAL
OF SUBSTANTIAL EQUALITY. 

THERE WAS UNCONTRADICTED EVIDENCE OFFERED IN THE DISTRICT COURT TO
THE EFFECT THAT THE LEGISLATURE'S PLAN, SUBJECT TO MINOR
QUALIFICATIONS, "PRODUCES THE MINIMUM DEVIATION ABOVE AND BELOW THE
NORM, KEEPING INTACT POLITICAL BOUNDARIES . . . "  (DEFENDANTS' EXHIBIT
8.)  THAT COURT ITSELF RECOGNIZED THAT EQUALITY WAS IMPOSSIBLE IF
POLITICAL BOUNDARIES WERE TO BE KEPT INTACT IN THE PROCESS OF
DISTRICTING.  BUT IT WENT ON TO HOLD THAT SINCE THE STATE "PROVED NO
GOVERNMENTAL NECESSITY FOR STRICTLY ADHERING TO POLITICAL SUBDIVISION
LINES," THE LEGISLATIVE PLAN WAS CONSTITUTIONALLY INVALID.  HOWELL V.
MAHAN, SUPRA, AT 1140.  AS WE NOTED ABOVE, HOWEVER, THE PROPER EQUAL
PROTECTION TEST IS NOT FRAMED IN TERMS OF "GOVERNMENTAL NECESSITY," BUT
INSTEAD IN TERMS OF A CLAIM THAT A STATE MAY "RATIONALLY CONSIDER." 
REYNOLDS V. SIMS, SUPRA, AT 580-581. 

THE DISTRICT COURT INTIMATED THAT ONE REASON FOR REJECTING THE
JUSTIFICATION FOR DIVERGENCES OFFERED BY THE STATE WAS ITS CONCLUSION
THAT THE LEGISLATURE HAD NOT IN FACT IMPLEMENTED ITS ASSERTED POLICY,
"AS WITNESS THE DIVISION OF FAIRFAX COUNTY."  HOWELL V. MAHAN, SUPRA,
AT 1140.  BUT WHILE FAIRFAX COUNTY WAS DIVIDED, IT WAS NOT FRAGMENTED. 
AND HAD IT NOT BEEN DIVIDED, THERE WOULD HAVE BEEN ONE TEN-MEMBER
DISTRICT IN FAIRFAX COUNTY, A RESULT THAT THIS COURT MIGHT WELL HAVE
BEEN THOUGHT TO DISFAVOR AS A RESULT OF ITS OPINION IN CONNOR V.
JOHNSON, 402 U.S. 690, 692(1971).  THE STATE CAN SCARCELY BE CONDEMNED
FOR SIMULTANEOUSLY ATTEMPTING TO MOVE TOWARD SMALLER DISTRICTS AND TO
MAINTAIN THE INTEGRITY OF ITS POLITICAL SUBDIVISION LINES. 

APPELLEES ARGUE THAT THE TRADITIONAL ADHERENCE TO SUCH LINES IS NO
LONGER A JUSTIFICATION SINCE THE VIRGINIA CONSTITUTIONAL PROVISION
REGARDING REAPPORTIONMENT, ART, II, SEC. 6, SUPRA, N. 1, NEITHER
SPECIFICALLY PROVIDES FOR APPORTIONMENT ALONG POLITICAL SUBDIVISION
LINES NOR DRAWS A DISTINCTION BETWEEN THE STANDARDS FOR CONGRESSIONAL
AND LEGISLATIVE DISTRICTING.  THE STANDARD IN EACH CASE IS DESCRIBED IN
THE "AS NEARLY AS IS PRACTICABLE" LANGUAGE USED IN WESBERRY V. SANDERS,
SUPRA, AND REYNOLDS V. SIMS, SUPRA.  BUT, AS WE HAVE PREVIOUSLY
INDICATED, THE LATITUDE AFFORDED TO STATE'S IN LEGISLATIVE
REDISTRICTING IS SOMEWHAT BROADER THAN THAT AFFORDED TO THEM IN
CONGRESSIONAL REDISTRICTING.  VIRGINIA WAS FREE AS A MATTER OF FEDERAL
CONSTITUTIONAL LAW TO CONSTRUE THE MANDATE OF ITS CONSTITUTION MORE
LIBERALLY IN THE CASE OF LEGISLATIVE REDISTRICTING THAN IN THE CASE OF
CONGRESSIONAL REDISTRICTING, AND THE PLAN ADOPTED BY THE LEGISLATURE
INDICATES THAT IT HAS DONE SO. 

WE ALSO REJECT THE ARGUMENT THAT, BECAUSE THE STATE IS NOT ADHERING
TO ITS TRADITION OF RESPECTING THE BOUNDARIES OF POLITICAL SUBDIVISIONS
IN CONGRESSIONAL AND STATE SENATE REDISTRICTING, IT MAY NOT DO SO IN
THE CASE OF REDISTRICTING FOR THE HOUSE OF DELEGATES.  NOTHING IN THE
FACT THAT VIRGINIA HAS FOLLOWED THE CONSTITUTIONAL MANDATE OF THIS
COURT IN THE CASE OF CONGRESSIONAL REDISTRICTING, OR THAT IT HAS CHOSEN
IN SOME INSTANCES TO IGNORE POLITICAL SUBDIVISION LINES IN THE CASE OF
THE STATE SENATE, DETRACTS FROM THE VALIDITY OF ITS CONSISTENTLY
APPLIED POLICY TO HAVE AT LEAST ONE HOUSE OF ITS BICAMERAL LEGISLATURE
RESPONSIVE TO VOTERS OF POLITICAL SUBDIVISIONS AS SUCH.  /9/ 

WE HOLD THAT THE LEGISLATURE'S PLAN FOR APPORTIONMENT OF THE HOUSE
OF DELEGATES MAY REASONABLY BE SAID TO ADVANCE THE RATIONAL STATE
POLICY OF RESPECTING THE BOUNDARIES OF POLITICAL SUBDIVISIONS.  THE
REMAINING INQUIRY IS WHETHER THE POPULATION DISPARITIES AMONG THE
DISTRICTS THAT HAVE RESULTED FROM THE PURSUIT OF THIS PLAN EXCEED
CONSTITUTIONAL LIMITS.  WE CONCLUDE THAT THEY DO NOT. 

THE MOST STRINGENT MATHEMATICAL STANDARD THAT HAS HERETOFORE BEEN
IMPOSED UPON AN APPORTIONMENT PLAN FOR A STATE LEGISLATURE BY THIS
COURT WAS ENUNCIATED IN SWANN V. ADAMS, 385 U.S. 440(1967), WHERE A
SCHEME HAVING A MAXIMUM DEVIATION OF 26% WAS DISAPPROVED.  IN THAT
CASE, THE STATE OF FLORIDA OFFERED NO EVIDENCE AT THE TRIAL LEVEL TO
SUPPORT THE CHALLENGED VARIATIONS WITH RESPECT TO EITHER THE HOUSE OR
SENATE.  ID., AT 446.  THE COURT EMPHASIZED THERE THAT "THE FACT THAT A
10% OR 15% VARIATION FROM THE NORM IS APPROVED IN ONE STATE HAS LITTLE
BEARING ON THE VALIDITY OF A SIMILAR VARIATION IN ANOTHER STATE."  ID.,
AT 445.  WE, THEREFORE, FIND THE CITATIONS TO NUMEROUS CASES DECIDED BY
STATE AND LOWER FEDERAL COURTS TO BE OF LIMITED USE IN DETERMINING THE
CONSTITUTIONALITY OF VIRGINIA'S STATUTE.  THE RELATIVELY MINOR
VARIATIONS PRESENT IN THE VIRGINIA PLAN CONTRAST SHARPLY WITH THE
LARGER VARIATIONS IN STATE LEGISLATIVE REAPPORTIONMENT PLANS THAT HAVE
BEEN STRUCK DOWN BY PREVIOUS DECISIONS OF THIS COURT.  SEE, E.G.,
REYNOLDS V. SIMS, SUPRA; SWANN V. ADAMS, SUPRA; AND KILGARLIN V. HILL,
386 U.S. 120(1967). 

NEITHER COURTS NOR LEGISLATURES ARE FURNISHED ANY SPECIALIZED
CALIPERS THAT ENABLE THEM TO EXTRACT FROM THE GENERAL LANGUAGE OF THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT THE MATHEMATICAL
FORMULA THAT ESTABLISHES WHAT RANGE OF PERCENTAGE DEVIATIONS IS
PERMISSIBLE, AND WHAT IS NOT.  THE 16-ODD PERCENT MAXIMUM DEVIATION
THAT THE DISTRICT COURT FOUND TO EXIST IN THE LEGISLATIVE PLAN FOR THE
REAPPORTIONMENT OF THE HOUSE IS SUBSTANTIALLY LESS THAN THE PERCENTAGE
DEVIATIONS THAT HAVE BEEN FOUND INVALID IN THE PREVIOUS DECISIONS OF
THIS COURT.  WHILE THIS PERCENTAGE MAY WELL APPROACH TOLERABLE LIMITS,
WE DO NOT BELIEVE IT EXCEEDS THEM.  VIRGINIA HAS NOT SACRIFICED
SUBSTANTIAL EQUALITY TO JUSTIFIABLE DEVIATIONS. 

THE POLICY OF MAINTAINING THE INTEGRITY OF POLITICAL SUBDIVISION
LINES IN THE PROCESS OF REAPPORTIONING A STATE LEGISLATURE, THE POLICY
CONSISTENTLY ADVANCED BY VIRGINIA AS A JUSTIFICATION FOR DISPARITIES IN
POPULATION AMONG DISTRICTS THAT ELECT MEMBERS TO THE HOUSE OF
DELEGATES, IS A RATIONAL ONE.  IT CAN REASONABLY BE SAID, UPON
EXAMINATION OF THE LEGISLATIVE PLAN, THAT IT DOES IN FACT ADVANCE THAT
POLICY.  THE POPULATION DISPARITIES THAT ARE PERMITTED THEREUNDER
RESULT IN A MAXIMUM PERCENTAGE DEVIATION THAT WE HOLD TO BE WITHIN
TOLERABLE CONSTITUTIONAL LIMITS.  WE, THEREFORE, HOLD THE GENERAL
ASSEMBLY'S PLAN FOR THE REAPPORTIONMENT OF THE HOUSE OF DELEGATES
CONSTITUTIONAL AND REVERSE THE DISTRICT COURT'S CONCLUSION TO THE
CONTRARY.  WE ALSO AFFIRM WEINBERG V. PRICHARD ET AL., NO. 71-444, HELD
PENDING THIS DISPOSITION.  /10/

  II 

THE GENERAL ASSEMBLY DIVIDED THE STATE INTO 40 SINGLE-MEMBER
SENATORIAL DISTRICTS.  UNDER THE PLAN, A PORTION OF THE CITY OF
VIRGINIA BEACH WAS ADDED TO THE CITY OF NORFOLK AND THE ENTIRE AREA WAS
DIVIDED INTO THREE SINGLE-MEMBER DISTRICTS, WHICH THE COURT BELOW FOUND
CONFORMED ALMOST IDEALLY, NUMERICALLY, TO THE "ONE PERSON, ONE VOTE"
PRINCIPLE.  BUT ALL NAVAL PERSONNEL "HOME-PORTED" AT THE U.S NAVAL
STATION, NORFOLK, ABOUT 36,700 PERSONS, WERE ASSIGNED TO THE FIFTH
SENATORIAL DISTRICT BECAUSE THAT IS WHERE THEY WERE COUNTED ON OFFICIAL
CENSUS TRACTS.  /11/  IT WAS UNDISPUTED THAT ONLY ABOUT 8,100 OF SUCH
PERSONNEL LIVED ABOARD VESSELS ASSIGNED TO THE CENSUS TRACT WITHIN THE
FIFTH DISTRICT.  THE COURT HAD BEFORE IT EVIDENCE THAT ABOUT 18,000
LIVED OUTSIDE THE FIFTH DISTRICT BUT WITHIN THE NORFOLK AND VIRGINIA
BEACH AREAS THAT, IF TRUE, INDICATED A MALAPPORTIONMENT WITH RESPECT TO
SUCH PERSONNEL.  /12/  LACKING SURVEY DATA SUFFICIENTLY PRECISE TO
PERMIT THE CREATION OF THREE SINGLE-MEMBER DISTRICT MORE CLOSELY
REPRESENTING THE ACTUAL POPULATION, THE COURT CORRECTED THE DISPARITIES
BY ESTABLISHING ONE MULTIMEMBER DISTRICT COMPOSED OF THE FIFTH, SIXTH,
AND SEVENTH DISTRICTS, ENCOMPASSING THE CITY OF NORFOLK AND A PORTION
OF VIRGINIA BEACH.  HOWELL V. MAHAN, SUPRA. 

APPELLANTS CHARGE THAT THE DISTRICT COURT WAS NOT JUSTIFIED IN
OVERTURNING THE DISTRICTS ESTABLISHED BY THE GENERAL ASSEMBLY SINCE THE
ASSEMBLY VALIDLY USES CENSUS TRACTS IN APPORTIONING THE AREA AND THAT
THE IMPOSITION BY THE COURT OF A MULTIMEMBER DISTRICT CONTRAVENED THE
VALID LEGISLATIVE POLICY IN FAVOR OF SINGLE-MEMBER DISTRICTS.  WE
CONCLUDE THAT UNDER THE UNUSUAL, IF NOT UNIQUE, CIRCUMSTANCES IN THIS
CASE THE DISTRICT COURT DID NOT ERR IN DECLINING TO ACCORD CONCLUSIVE
WEIGHT TO THE LEGISLATIVE RELIANCE ON CENSUS FIGURES.  THAT COURT
JUSTIFIABLY FOUND THAT WITH RESPECT TO THE THREE SINGLE-MEMBER
DISTRICTS IN QUESTION, THE LEGISLATIVE PLAN RESULTED IN BOTH
SIGNIFICANT POPULATION DISPARITIES AND THE ASSIGNMENT OF MILITARY
PERSONNEL TO VOTE IN DISTRICTS IN WHICH THEY ADMITTEDLY DID NOT
RESIDE.  SINCE DISCRIMINATORY TREATMENT OF MILITARY PERSONNEL IN
LEGISLATIVE REAPPORTIONMENT IS CONSTITUTIONALLY IMPERMISSIBLE, DAVIS V.
MANN, SUPRA, AT 691, WE HOLD THAT THE INTERIM RELIEF GRANTED BY THE
DISTRICT COURT AS TO THE STATE SENATE WAS WITHIN THE BOUNDS OF THE
DISCRETION CONFIDED TO IT. 

APPLICATION OF INTERIM REMEDIAL TECHNIQUES IN VOTING RIGHTS CASES
HAS LARGELY BEEN LEFT TO THE DISTRICT COURTS.  REYNOLDS V. SIMS, SUPRA,
AT 585.  THE COURTS ARE BOUND TO APPLY EQUITABLE CONSIDERATIONS AND IN
REYNOLDS IT WAS STATED THAT "(IN AWARDING OR WITHHOLDING IMMEDIATE
RELIEF, A COURT IS ENTITLED TO AND SHOULD CONSIDER THE PROXIMITY OF A
FORTHCOMING ELECTION AND THE MECHANICS AND COMPLEXITIES OF STATE
ELECTION LAWS . . . "  IBID. 

THE COURT BELOW WAS FACED WITH SEVERE TIME PRESSURES.  THE
REAPPORTIONMENT PLANS WERE FIRST FORWARDED TO THE ATTORNEY GENERAL ON
MARCH 1, 1971.  BY APRIL 7, THESE THREE CASES HAD BEEN FILED AND
CONSOLIDATED.  THE FIRST HEARING WAS SCHEDULED FOR MAY 24, BUT ON MAY
7, THE ATTORNEY GENERAL INTERPOSED HIS OBJECTIONS PURSUANT TO THE
VOTING RIGHTS ACT.  AS A RESULT, THE MAY 24 HEARING WAS LARGELY DEVOTED
TO ARGUING ABOUT THE EFFECT OF SUCH OBJECTIONS AND AFTER THAT HEARING,
THE COURT DIRECTED THE CASES TO BE CONTINUED UNTIL JUNE 15.  IT ALSO
POSTPONED THE PRIMARY ELECTIONS, WHICH HAD BEEN SET FOR JUNE 8, UNTIL
SEPTEMBER 14.  THE CASES WERE FINALLY HEARD ON JUNE 16, AND THE COURT'S
INTERLOCUTORY ORDER WAS ENTERED ON JULY 2, JUST TWO WEEKS PRIOR TO THE
REVISED JULY 16 FILING DEADLINE FOR PRIMARY CANDIDATES. 

PRIOR TO THE TIME THE COURT ACTED, THIS COURT HAD HANDED DOWN
WHITCOMB V. CHAVIS, 403 U.S. 124(1971), RECOGNIZING THAT MULTIMEMBER
DISTRICTS WERE NOT PER SE VIOLATIVE OF THE EQUAL PROTECTION CLAUSE. 
THE COURT CONSCIENTIOUSLY CONSIDERED BOTH THE LEGISLATIVE POLICY AND
THIS COURT'S ADMONITION IN CONNOR V. JOHNSON, SUPRA, THAT IN FASHIONING
APPORTIONMENT REMEDIES, THE USE OF SINGLE-MEMBER DISTRICTS IS
PREFERRED.  BUT IT WAS CONFRONTED WITH PLAUSIBLE EVIDENCE OF
SUBSTANTIAL MALAPPORTIONMENT WITH RESPECT TO MILITARY PERSONNEL, THE
MANDATE OF THIS COURT THAT VOTING DISCRIMINATION AGAINST MILITARY
PERSONNEL IS CONSTITUTIONALLY IMPERMISSIBLE, DAVIS V. MANN, SUPRA, AT
691-692, AND THE FEAR THAT TOO MUCH DELAY WOULD HAVE SERIOUSLY
DISRUPTED THE FALL 1971 ELECTIONS.  FACING AS IT DID THIS SINGULAR
COMBINATION OF UNIQUE FACTORS, WE CANNOT SAY THAT THE DISTRICT COURT
ABUSED ITS DISCRETION IN FASHIONING THE INTERIM REMEDY OF COMBINING THE
THREE DISTRICTS INTO ONE MULTIMEMBER DISTRICT.  /13/ WE, THEREFORE,
AFFIRM THE ORDER OF THAT COURT INSOFAR AS IT DEALT WITH THE STATE
SENATE. 

              AFFIRMED IN PART, REVERSED IN PART. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

/0/  TOGETHER WITH NO. 71-373, CITY OF VIRGINIA BEACH V. HOWELL ET
AL., ON APPEAL FROM THE SAME COURT, AND NO. 71-444, WEINBERG V.
PRICHARD ET AL., ON APPEAL FROM THE SAME COURT BUT NOT ARGUED.  SEE N.
10, INFRA. 

/1/  ARTICLE II, SEC. 6, OF THE REVISED VIRGINIA CONSTITUTION
PROVIDES: 

"MEMBERS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES AND
MEMBERS OF THE SENATE AND OF THE HOUSE OF DELEGATES OF THE GENERAL
ASSEMBLY SHALL BE ELECTED FROM ELECTORAL DISTRICTS ESTABLISHED BY THE
GENERAL ASSEMBLY.  EVERY ELECTORAL DISTRICT SHALL BE COMPOSED OF
CONTIGUOUS AND COMPACT TERRITORY AND SHALL BE SO CONSTITUTED AS TO
GIVE, AS NEARLY AS IS PRACTICABLE, REPRESENTATION IN PROPORTION TO THE
POPULATION OF THE DISTRICT.  THE GENERAL ASSEMBLY SHALL REAPPORTION THE
COMMONWEALTH INTO ELECTORAL DISTRICTS IN ACCORDANCE WITH THIS SECTION
IN THE YEAR 1971 AND EVERY TEN YEARS THEREAFTER.     "ANY SUCH
REAPPORTIONMENT LAW SHALL TAKE EFFECT IMMEDIATELY AND NOT BE SUBJECT TO
THE LIMITATIONS CONTAINED IN ARTICLE IV, SECTION 13, OF THIS
CONSTITUTION." 

/2/  VA. CODE.  ANN.  SEC. 24.1-12.1 (SUPP. 1972).     /3/  VA. CODE
ANN.  SEC. 24.1-14.1, AS AMENDED BY C. 246, ACTS OF ASSEMBLY, JUNE 14,
1971. 

/4/  THE REAPPORTIONMENT STATUTES WERE ORIGINALLY PASSED ON MARCH 1,
1971.  ON MAY 7, 1971, THE ATTORNEY GENERAL OF THE UNITED STATES,
ACTING PURSUANT TO SEC. 5 OF THE VOTING RIGHTS ACT OF 1965, 79 STAT.
439, 42 U.S.C. 1973C, INTERPOSED OBJECTIONS TO BOTH THE HOUSE AND THE
SENATE PLANS.  OBJECTIONS TO THE HOUSE PLAN WERE BASED ON THE USE OF
FIVE MULTIMEMBER DISTRICTS IN CERTAIN METROPOLITAN AREAS.  BETWEEN HIS
INTERPOSITION AND THE TRIAL OF THESE CASES, THIS COURT DECIDED WHITCOMB
V. CHAVIS, 403 U.S. 124(1971), AND THE ATTORNEY GENERAL'S OBJECTIONS TO
THE HOUSE PLAN WERE SUBSEQUENTLY WITHDRAWN.  THE OBJECTION OF THE
SENATE PLAN WAS CURED BY THE AMENDMENT CONTAINED IN C. 246, SUPRA, N.
3. 

/5/  THE COURT INITIALLY NOTED PROBABLE JURISDICTION IN THE RELATED
CASE OF THORNTON V. PRICHARD, NO. 71-553.  THIS APPEAL PRIMARILY
INVOLVED THE QUESTION OF WHETHER OR NOT THE MULTIMEMBER DISTRICTS HAD A
DISCRIMINATORY EFFECT ON THE RIGHTS OF NEGRO VOTERS UNDER SEC. 5 OF THE
VOTING RIGHTS ACT, SUPRA, N. 4, AS WELL AS UNDER THE FOURTEENTH AND
FIFTEENTH AMENDMENTS.  ON APPELLANT'S OWN MOTION, THIS APPEAL WAS
DISMISSED, 409 U.S. 802. 

/6/  THESE ARE THE FIGURES FOUND BY THE DISTRICT COURT.  APPELLEE
DUVAL ARGUES THAT ANOTHER METHOD OF COMPUTATION INVOLVING VIRGINIA'S
FLOTERIAL DISTRICTS RESULTS IN A MAXIMUM DEVIATION OF 23.6%.  THE STATE
AND THE CITY OF VIRGINIA BEACH DISPUTED THAT THE DEVIATION FOR THE
DISTRICT RELIED ON BY DUVAL FOR HIS FIGURE WAS AS MUCH AS CLAIMED.  THE
LOWER COURT MADE NO FINDING ON THAT DISPUTE, CONCLUDING THAT THE 16.4%
VARIATION WAS "SUFFICIENT TO CONDEMN THE PLAN."  303 F.SUPP.  1138,
1139-1140.  WE DECLINE TO ENTER THIS IMBROGLIO OF MATHEMATICAL
MANIPULATION AND CONFINE OUR CONSIDERATION TO THE FIGURES ACTUALLY
FOUND BY THE COURT AND USED TO SUPPORT ITS HOLDING OF
UNCONSTITUTIONALITY. 

/7/  IN CONNOR V. WILLIAMS, 404 U.S. 549(1972), WE EXPRESSLY
RESERVED DECISION ON THIS ISSUE. 

/8/  THE LOWER COURT CONCLUDED THAT ITS SPREAD WAS ONLY SLIGHTLY
OVER 7%, BUT IN ITS ARITHMETIC IT DID NOT CONSIDER TWO COUNTIES BECAUSE
OF THEIR ASSERTED ISOLATION FROM THE REMAINDER OF THE STATE.  HOWELL V.
MAHAN, 330 F.SUPP.  1147 N. 8. 

/9/  APPELLEES ALSO CONTEND THAT IT IS CLEAR THE STATE HAS ABANDONED
ITS TRADITIONAL ADHERENCE TO POLITICAL SUBDIVISION BOUNDARIES SINCE IT
PROVIDED IN THE REAPPORTIONMENT STATUTE THAT DISTRICTS SHALL NOT CHANGE
EVEN THOUGH BOUNDARIES DO AS A RESULT OF ANNEXATION, FOR EXAMPLE.  THE
SHORT ANSWER IS THAT THE GENERAL ASSEMBLY HAD THE DUAL GOAL OF
MAINTAINING SUCH LINES AND PROVIDING FOR POPULATION EQUALITY. 
REAPPORTIONMENT WAS ONLY CONSTITUTIONALLY REQUIRED EVERY 10 YEARS
BETWEEN REDISTRICTING, AND IT WAS THE ASSEMBLY'S DECISION THAT IF
DURING THE 10 YEARS BETWEEN REDISTRICTING ONE OF ITS GOALS SHOULD
CONFLICT WITH THE OTHER, THE ONE BASED ON KNOWN POPULATION VARIANCES
SHOULD PREVAIL.  SUCH A DETERMINATION DOES NOT RENDER CONSTITUTIONALLY
DEFECTIVE AN OTHERWISE VALID PLAN. 

/10/  IN THIS COMPANION CASE, APPELLANT WEINBERG CHALLENGES THE
ORDER OF THE DISTRICT COURT INSOFAR AS IT SUSTAINS THE VALIDITY OF THE
22D AND 23D DISTRICTS ESTABLISHED IN THE HOUSE OF DELEGATES
APPORTIONMENT STATUTE.  HE ARGUES THAT IN COURT-ORDERED
REAPPORTIONMENT, THIS COURT OUGHT TO EXERCISE ITS SUPERVISORY POWER TO
REQUIRE MORE EQUALITY THAN WOULD BE REQUIRED FROM LEGISLATIVE
REAPPORTIONMENT.  HE ALSO CONTENDS THAT THE METHOD OF COMPUTATION OF
FLOTERIAL DISTRICT DEVIATIONS UTILIZED BY THE DISTRICT COURT WAS
ERRONEOUS.  SINCE THE HOUSE OF DELEGATES APPORTIONMENT STATUTE IS
CONSTITUTIONAL, AND SINCE THE DEVIATION FOR THE 23D DISTRICT UNDER
APPELLANT'S METHOD OF COMPUTATION IS ONLY 3.9%, SUBSTANTIALLY LOWER
THAN THE APPROXIMATELY 16% DEVIATION TODAY UPHELD, WE AFFIRM THOSE
PORTIONS OF THE JUDGMENT APPEALED FROM IN NO. 71-444. 

/11/  SUCH PERSONNEL WERE ATTACHED TO SHIPS "HOME-PORTED" AT NORFOLK
AND THEY WERE ENUMERATED IN CENSUS TRACT 000999, A LOCATION
ENCOMPASSING A SERIES OF SHIP PIERS.  THEY WERE COUNTED THAT WAY IN
ACCORDANCE WITH INSTRUCTIONS FROM THE DIRECTOR OF THE BUREAU OF THE
CENSUS, GEORGE H. BROWN.  ALL SHIP COMMANDERS WERE DIRECTED TO OBTAIN
AN ENUMERATION OF ALL PERSONNEL ASSIGNED TO THEIR SHIPS.  SPECIFICALLY
HIS INSTRUCTIONS PROVIDED THAT SHIP COMMANDERS WERE TO: "INCLUDE ALL
MARRIED PERSONNEL IN THE ENUMERATION EVEN THOUGH THEY MAY BE HOME WITH
THEIR FAMILIES ON 1 APRIL.  WIVES OF PERSONNEL ASSIGNED TO VESSELS WILL
BE INSTRUCTED NOT TO INCLUDE THEIR HUSBANDS WHEN THEY COMPLETE THEIR
CENSUS FORMS." 

THUS, EVEN THOUGH NAVY PERSONNEL ASSIGNED TO SHIPS "HOME-PORTED" AT
NORFOLK MIGHT HAVE LIVED OUTSIDE THE FIFTH SENATORIAL DISTRICT WITH
THEIR WIVES AND FAMILIES, FOR CENSUS PURPOSES THEY WERE ASSIGNED TO
THAT DISTRICT. 

THE LEGISLATIVE USE OF THIS CENSUS ENUMERATION TO SUPPORT A
CONCLUSION THAT ALL OF THE NAVY PERSONNEL ON A SHIP ACTUALLY RESIDED
WITHIN THE STATE SENATORIAL DISTRICT IN WHICH THE SHIP WAS DOCKED
PLACED UPON THE CENSUS FIGURES A WEIGHT THAT THEY WERE NOT INTENDED TO
BEAR.  THE NAVY ITSELF USED AS A "RULE OF THUMB" AN ESTIMATE THAT 50%
OF SUCH PERSONNEL OCCUPIED HOUSING UNITS ON SHORE. 

/12/  THE DISTRICT COURT FOUND THAT THE REMAINING 10,000 LIVED OFF
THE BASE BUT WITHIN THE FIFTH SENATORIAL DISTRICT. 

/13/  WE NOTE THAT THE ORDER APPEALED FROM IS INTERLOCUTORY AND THE
LOWER COURT HAS RETAINED JURISDICTION.  THERE IS NOTHING IN ITS ORDER
TO PREVENT THE VIRGINIA GENERAL ASSEMBLY FROM ENACTING AN APPORTIONMENT
PLAN FOR THE FIFTH, SIXTH, AND SEVENTH DISTRICTS WHICH DIFFERS FROM
THAT ORDERED BY THE COURT BUT IS NONETHELESS CONSISTENT WITH
CONSTITUTIONAL REQUIREMENTS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT IN NO. 71-373, CITY OF VIRGINIA BEACH V.
HOWELL, THAT THE JOINDER BY THE DISTRICT COURT OF THREE SENATORIAL
DISTRICTS IN THE NORFOLK-VIRGINIA BEACH AREA TO CREATE ONE MULTIMEMBER
SENATORIAL DISTRICT FOR THE 1971 ELECTION WAS PERMISSIBLE UNDER THE
SPECIAL CIRCUMSTANCES OF THIS CASE.  CF. WHITCOMB V. CHAVIS, 403 U.S.
124, 176-179(1971) (DOUGLAS, J., CONCURRING AND DISSENTING); SEE
FORTSON V. DORSEY, 379 U.S. 433, 439(1965); BURNS V. RICHARDSON, 384
U.S. 73, 88(1966).  I DISSENT, HOWEVER, IN NO. 71-364, MAHAN V. HOWELL,
FROM THE COURT'S ACTION IN SETTING ASIDE THE DISTRICT COURT'S FINDING
THAT THE APPORTIONMENT OF THE STATE HOUSE OF DELEGATES VIOLATED THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

THE COURT APPROVES A LEGISLATIVE APPORTIONMENT PLAN THAT IS CONCEDED
TO PRODUCE A TOTAL DEVIATION OF AT LEAST 16.4% FROM THE CONSTITUTIONAL
IDEAL.  /1/  OF COURSE, "THE FACT THAT A 10% OR 15% VARIATION FROM THE
NORM IS APPROVED IN ONE STATE HAS LITTLE BEARING ON THE VALIDITY OF A
SIMILAR VARIATION IN ANOTHER STATE."  SWANN V. ADAMS, 385 U.S. 440,
445(1967).  "WHAT IS MARGINALLY PERMISSIBLE IN ONE STATE MAY BE
UNSATISFACTORY IN ANOTHER, DEPENDING ON THE PARTICULAR CIRCUMSTANCES OF
THE CASE."  REYNOLDS V. SIMS, 377 U.S. 533, 578(1964).  SINCE EVERY
REAPPORTIONMENT CASE PRESENTS AS ITS FACTUAL PREDICATE A UNIQUE
COMBINATION OF CIRCUMSTANCES, DECISIONS UPHOLDING OR INVALIDATING A
LEGISLATIVE PLAN CANNOT NORMALLY HAVE GREAT PRECEDENTIAL SIGNIFICANCE. 
ABATE V. MUNDT, 403 U.S. 182, 189(1971) (BRENNAN, J., DISSENTING).  BUT
LANGUAGE IN THE COURT'S OPINION TODAY SUGGESTS THAT MORE MAY BE AT
STAKE THAN THE APPLICATION OF WELL-ESTABLISHED PRINCIPLES TO A NOVEL
SET OF FACTS.  IN MY VIEW, THE PROBLEM IN THE CASE BEFORE US IS IN NO
SENSE ONE OF FIRST IMPRESSION, BUT IS SQUARELY CONTROLLED BY OUR PRIOR
DECISIONS.  SEE KIRKPATRICK V. PREISLER, 397 U.S. 526(1969); SWANN V.
ADAMS, SUPRA; REYNOLDS V. SIMS, SUPRA; DAVIS V. MANN, 377 U.S.
678(1964); ROMAN V. SINCOCK, 377 U.S. 695(1964).  IT IS APPROPRIATE,
THEREFORE, TO CALL TO MIND AGAIN THE CONTROLLING PRINCIPLES AND TO SHOW
THAT, PROPERLY APPLIED TO THE FACTS OF THE CASE BEFORE US, THEY
PRECLUDE A REVERSAL OF THE DISTRICT COURT'S DECISION. 

        I 

VIRGINIA'S RECENTLY AMENDED CONSTITUTION PROVIDES THAT "MEMBERS OF
THE SENATE AND OF THE HOUSE OF DELEGATES OF THE GENERAL ASSEMBLY SHALL
BE ELECTED FROM ELECTORAL DISTRICTS ESTABLISHED BY THE GENERAL
ASSEMBLY," AND "(EVERY ELECTORAL DISTRICT SHALL BE COMPOSED TO
CONTIGUOUS AND COMPACT TERRITORY AND SHALL BE SO CONSTITUTED AS TO
GIVE, AS NEARLY AS IS PRACTICABLE, REPRESENTATION IN PROPORTION TO THE
POPULATION OF THE DISTRICT."  ART. II, SEC. 6.  PURSUANT TO THAT
REQUIREMENT, THE GENERAL ASSEMBLY IN 1971 DIVIDED THE COMMONWEALTH INTO
52 LEGISLATIVE DISTRICTS FROM WHICH THE 100 MEMBERS OF THE HOUSE OF
DELEGATES WERE TO BE ELECTED. 

ON THE BASIS OF 1970 CENSUS FIGURES, WHICH SET THE POPULATION OF THE
COMMONWEALTH AT 4,648,494, EACH DELEGATE SHOULD IDEALLY REPRESENT
46,485 PERSONS.  WHILE THE LEGISLATURE'S PLAN DOES NOT DISREGARD
CONSTITUTIONAL REQUIREMENTS TO THE FLAGRANT EXTENT OF MANY EARLIER
CASES, /2/  IT DOES, NEVERTHELESS, DEMONSTRATE A SYSTEMATIC PATTERN OF
SUBSTANTIAL DEVIATION FROM THE CONSTITUTIONAL IDEAL.  UNDER THE 1971
PLAN, MORE THAN 25% OF THE DELEGATES WOULD BE ELECTED FROM DISTRICTS IN
WHICH THE POPULATION DEVIATES FROM THE IDEAL BY MORE THAN 5%.  ALMOST
60% OF THE DELEGATES WOULD REPRESENT DISTRICTS THAT DEVIATE BY MORE
THAN 3%.  FOUR LEGISLATORS WOULD BE ELECTED FROM DISTRICTS THAT ARE
OVERREPRESENTED OR UNDERREPRESENTED BY MORE THAN 8%.  AND THE MAXIMUM
DEVIATION-- THE SPREAD BETWEEN THE MOST OVERREPRESENTED AND THE MOST
UNDERREPRESENTED DISTRICTS-- WOULD BE AT LEAST 16.4%, AND MIGHT BE AS
HIGH AS 23.6%, DEPENDING ON THE METHOD OF CALCULATION. 

ASSUMING A MAXIMUM DEVIATION OF 16.4%, THE LEGISLATURE'S PLAN IS
STILL SIGNIFICANTLY LESS REPRESENTATIVE THAN MANY PLANS PREVIOUSLY
STRUCK DOWN BY STATE AND LOWER FEDERAL COURTS.  /3/  APPELLEES
MAINTAIN, HOWEVER, THAT THE TOTAL DEVIATION, PROPERLY COMPUTED, IS IN
FACT 23.6%-- A FIGURE CLOSELY APPROXIMATING THE 25.65% DEVIATION THAT
LED US TO INVALIDATE THE SENATE PLAN IN SWANN V. ADAMS, SUPRA, THE
26.48% DEVIATION THAT LED US TO INVALIDATE THE HOUSE PLAN IN KILGARLIN
V. HILL, 386 U.S. 120(1967), AND THE 24.78% DEVIATION THAT LED US TO
INVALIDATE THE HOUSE PLAN IN WHITCOMB V. CHAVIS, 403 U.S. 124, 161
163(1971).  APPELLEES ARRIVE AT THE FIGURE OF 23.6% BY TAKING INTO
ACCOUNT THE DEVIATIONS IN FLOTERIAL DISTRICTS, SEE APP. 81-83, AND
APPELLANTS SEEM TO CONCEDE THAT 23.6% IS AN ACCURATE INDICATOR OF THE
TOTAL DEVIATION.  SEE BRIEF FOR APPELLANT COMMONWEALTH OF VIRGINIA 7. 
/4/ 

THE DISTRICT COURT POINTED OUT THAT THE "RANGE OF DEVIATION MAY
EXCEED 16.4%," 330 F.SUPP.  1138, 1139 N. 1 (ED VA. 1971), BUT IT HAD
NO OCCASION TO CONSIDER WHETHER 23.6% WAS THE MORE ACCURATE FIGURE
BECAUSE OF ITS FINDING THAT "(UNDER EITHER MODE OF CALCULATION . . .
THE STATEWIDE RANGE OF DEVIATION WILL NOT PASS CONSTITUTIONAL MUSTER." 
IBID.  ALTHOUGH CONCEDING THAT THE DISTRICT COURT DID NOT REJECT OR
DISPARAGE APPELLEES' ASSERTION OF A 23.6% DEVIATION, THE COURT
NEVERTHELESS REACHES THE PERPLEXING CONCLUSION THAT WE "CONFINE OUR
CONSIDERATION TO THE FIGURES ACTUALLY FOUND BY THE COURT AND USED TO
SUPPORT ITS HOLDING OF UNCONSTITUTIONALITY"-- 16.4%.  ANTE, AT 319, N.
6.  BUT IF THE LEGISLATURE'S PLAN DOES, IN FACT, "PASS CONSTITUTIONAL
MUSTER" ON THE ASSUMPTION OF A 16.4% DEVIATION, THEN IT IS SURELY FAIR
TO ASK WHETHER THE PLAN WOULD STILL BE VALID ASSUMING A TOTAL DEVIATION
OF 23.6%.  THE COURT REFUSES EITHER TO CONFRONT THE QUESTION DIRECTLY
OR TO RENDER IT MOOT BY DETERMINING THAT THE FIGURE OF 23.6% IS
IRRELEVANT BECAUSE IMPROPERLY DERIVED.  INSTEAD, IT ATTEMPTS TO OBSCURE
THE ISSUE BY CONTENDING THAT THE COMMONWEALTH AND THE CITY OF VIRGINIA
BEACH DISPUTED APPELLEES' ASSERTION OF A 23.6% TOTAL DEVIATION.  THAT
CONTENTION IS WHOLLY INCORRECT.  NEITHER IN THE ANSWERS FILED IN THE
DISTRICT COURT, NOR IN THE BRIEFS, NOR AT ORAL ARGUMENT DID THE
COMMONWEALTH OR THE CITY OF VIRGINIA BEACH QUARREL WITH APPELLEE'S
METHOD OF CALCULATING THE DEVIATION IN FLOTERIAL DISTRICTS.  SEE N. 4,
SUPRA.  THE COURT'S REFUSAL TO CONSIDER THE QUESTION CAN ONLY MEAN THAT
APPELLEES HAVE THE OPTION OF REOPENING THIS LITIGATION IN THE DISTRICT
COURT IN AN ATTEMPT TO PERSUADE THAT COURT THAT THE TRUE MEASURE OF THE
DEVIATION IS 23.6% AND THAT A DEVIATION OF THIS ORDER IS FATAL TO THE
COMMONWEALTH'S PLAN. 

IN MY VIEW, THERE IS NO NEED TO PROLONG THIS LITIGATION BY
RESOLUTION IN THE COURT BELOW OF AN ISSUE THAT THIS COURT SHOULD, BUT
INEXPLICABLY DOES NOT, DECIDE.  THE DISTRICT COURT CORRECTLY HELD THAT
DEVIATIONS OF THE MAGNITUDE OF EVEN 16.4% ARE SUFFICIENT TO INVALIDATE
THE LEGISLATURE'S PLAN.  AND THAT COURT ADDED-- AGAIN CORRECTLY-- THAT
"(IN REAPPORTIONMENT CASES THE BURDEN IS ON THE STATE TO JUSTIFY
DEVIATIONS FROM PARITY BY 'LEGITIMATE CONSIDERATIONS INCIDENT TO THE
EFFECTUATION OF A RATIONAL STATE POLICY.'  REYNOLDS V. SIMS, 377 U.S.
533, 579(1964); SEE SWANN V. ADAMS, 385 U.S. 440, 444(1967).  THE STATE
HAS PROVED NO GOVERNMENTAL NECESSITY FOR STRICTLY ADHERING TO POLITICAL
SUBDIVISION LINES."  330 F.SUPP.,AT 1140.  ACCORDINGLY, THE DISTRICT
COURT PROMULGATED ITS OWN APPORTIONMENT PLAN, WHICH SIGNIFICANTLY
REDUCED THE EXTENT OF DEVIATION.     UNDER THE DISTRICT COURT'S PLAN,
THE MAXIMUM DEVIATION WOULD BE 7.2%, /5/  EXCLUDING ONE DISTRICT WHICH
IS GEOGRAPHICALLY ISOLATED FROM THE MAINLAND OF THE COMMONWEALTH.  /6/
AND, EVEN INCLUDING THAT ISOLATED DISTRICT, THE MAXIMUM TOTAL DEVIATION
WOULD NOT EXCEED 10.2% BUT THE SUBSTANTIAL REDUCTION IN THE MAXIMUM
DEVIATION DOES NOT IN ITSELF MAKE CLEAR THE FULL MEASURE OF THE
IMPROVEMENT ACHIEVED BY THE DISTRICT COURT'S PLAN.  THE NUMBER OF
DELEGATES WHOSE DISTRICTS DEVIATE FROM THE NORM BY 3% OR MORE WOULD BE
ALMOST CUT IN HALF, FROM 58 TO 32.  AND OF THE 32 DISTRICTS STILL
EXCEEDING THE 3% MARK, ONLY ONE-- THE GEOGRAPHICALLY ISOLATED DISTRICT-
WOULD EXCEED THE MEAN BY MORE THAN 3.7%.  IN SHORT, WHILE THE DISTRICT
COURT DID NOT ACHIEVE ITS STATED GOAL OF "PERFECT MATHEMATICAL
DIVISION" BECAUSE OF THE "MULTIPLICITY OF DELEGATES, THE GEOGRAPHY OF
THE STATE AND THE DIVERSITY OF POPULATION CONCENTRATIONS," 330 F.SUPP.,
AT 1147, ITS PLAN WOULD STILL PRODUCE MEASURABLY GREATER EQUALITY OF
REPRESENTATION. 

APPELLANTS NECESSARILY CONCEDE THAT THE DISTRICT COURT'S PLAN WOULD
REDUCE THE INEQUALITY IN POPULATION PER DISTRICT, BUT THEY DEFEND THE
LEGISLATURE'S PLAN ON THE GROUND THAT "TOLERANCE OF POLITICAL
JURISDICTIONAL LINES IS JUSTIFICATION FOR SOME DEVIATION," BRIEF FOR
APPELLANT COMMONWEALTH OF VIRGINIA 24.  THEY MAINTAIN THAT THE
LEGISLATURE'S PLAN ACHIEVED THE HIGHEST DEGREE OF EQUALITY POSSIBLE
WITHOUT FRAGMENTING POLITICAL SUBDIVISIONS.  THE PRINCIPAL QUESTION
PRESENTED FOR OUR DECISION IS WHETHER ON THE FACTS OF THIS CASE AN
ASSERTED STATE INTEREST IN PRESERVING THE INTEGRITY OF COUNTY LINES CAN
JUSTIFY THE RESULTING SUBSTANTIAL DEVIATIONS FROM POPULATION EQUALITY. 

        II 

THE HOLDINGS OF OUR PRIOR DECISIONS CAN BE RESTATED IN TWO
UNEQUIVOCAL PROPOSITIONS.  FIRST, THE PARAMOUNT GOAL OF REAPPORTIONMENT
MUST BE THE DRAWING OF DISTRICT LINES SO AS TO ACHIEVE PRECISE EQUALITY
IN THE POPULATION OF EACH DISTRICT.  /7/  "(THE EQUAL PROTECTION CLAUSE
REQUIRES THAT A STATE MAKE AN HONEST AND GOOD FAITH EFFORT TO CONSTRUCT
DISTRICTS, IN BOTH HOUSES OF ITS LEGISLATURE, AS NEARLY OF EQUAL
POPULATION AS IS PRACTICABLE."  REYNOLDS V. SIMS, 377 U.S., AT 577; SEE
ALSO KIRKPATRICK V. PREISLER, 394 U.S., AT 531.  THE CONSTITUTION DOES
NOT PERMIT A STATE TO RELEGATE CONSIDERATIONS OF EQUALITY TO SECONDARY
STATUS AND RESERVE AS THE PRIMARY GOAL OF APPORTIONMENT THE SERVICE OF
SOME OTHER STATE INTEREST. 

SECOND, IT IS OPEN TO THE STATE, IN THE EVENT THAT IT SHOULD FAIL TO
ACHIEVE THE GOAL OF POPULATION EQUALITY, TO ATTEMPT TO JUSTIFY ITS
FAILURE BY JEOPARDIZING SOME CRITICAL GOVERNMENTAL INTEREST.  THE EQUAL
PROTECTION CLAUSE DOES NOT EXALT THE PRINCIPLE OF EQUAL REPRESENTATION
TO THE POINT OF NULLIFYING EVERY COMPETING INTEREST OF THE STATE.  BUT
WE HAVE HELD FIRMLY TO THE VIEW THAT VARIATIONS IN WEIGHT ACCORDED EACH
VOTE CAN BE APPROVED ONLY WHERE THE STATE MEETS ITS BURDEN OF
PRESENTING COGENT REASONS IN EXPLANATION OF THE VARIATIONS, AND EVEN
THEN ONLY WHERE THE VARIATIONS ARE SMALL.  SEE, E.G., ABATE V. MUNDT,
403 U.S. 182(1971); KIRKPATRICK V. PREISLER, SUPRA; SWANN V. ADAMS,
SUPRA. 

THE VALIDITY OF THESE PROPOSITIONS AND THEIR APPLICABILITY TO THE
CASE BEFORE US ARE NOT AT ALL DIMINISHED BY THE FACT THAT KIRKPATRICK
V. PREISLER AND WELLS V. ROCKEFELLER, 394 U.S. 542(1969)-- TWO OF THE
MANY CASES IN WHICH THE PROPOSITIONS WERE REFINED AND APPLIED--
CONCERNED THE DIVISION OF STATES INTO FEDERAL CONGRESSIONAL DISTRICTS
RATHER THAN LEGISLATIVE REAPPORTIONMENT.  PRIOR TO TODAY'S DECISION, WE
HAVE NEVER HELD THAT DIFFERENT CONSTITUTIONAL STANDARDS ARE APPLICABLE
TO THE TWO SITUATIONS.  TRUE, THERE ARE SIGNIFICANT DIFFERENCES BETWEEN
CONGRESSIONAL DISTRICTING AND LEGISLATIVE APPORTIONMENT, AND WE HAVE
REPEATEDLY RECOGNIZED THOSE DIFFERENCES.  IN REYNOLDS V. SIMS, FOR
EXAMPLE, WE TERMED "MORE THAN INSUBSTANTIAL" THE ARGUMENT THAT "A STATE
CAN RATIONALLY CONSIDER ACCORDING POLITICAL SUBDIVISIONS SOME
INDEPENDENT REPRESENTATION IN AT LEAST ONE BODY OF THE STATE
LEGISLATURE, AS LONG AS THE BASIC STANDARD OF EQUALITY OF POPULATION
AMONG DISTRICTS IS MAINTAINED."  377 U.S., AT 580.  SEE ALSO ID., AT
578; ABATE V. MUNDT, SUPRA.  BUT THE RECOGNITION OF THESE DIFFERENCES
IS HARDLY TANTAMOUNT TO THE ESTABLISHMENT OF TWO DISTINCT CONTROLLING
STANDARDS.  WHAT OUR DECISIONS HAVE MADE CLEAR IS THAT CERTAIN STATE
INTERESTS THAT ARE PERTINENT TO LEGISLATIVE REAPPORTIONMENT CAN HAVE NO
POSSIBLE RELEVANCE TO CONGRESSIONAL DISTRICTING.  THUS, THE NEED TO
PRESERVE THE INTEGRITY OF POLITICAL SUBDIVISIONS AS POLITICAL
SUBDIVISIONS MAY, IN SOME INSTANCES, JUSTIFY SMALL VARIATIONS IN THE
POPULATION OF DISTRICTS FROM WHICH STATE LEGISLATORS ARE ELECTED.  BUT
THAT INTEREST CAN HARDLY BE ASSERTED IN JUSTIFICATION OF MALAPPORTIONED
AND CONGRESSIONAL DISTRICTS.  KIRKPATRICK V. PREISLER, SUPRA.  WHILE
THE STATE MAY HAVE A BROADER RANGE OF INTERESTS TO WHICH IT CAN POINT
IN ATTEMPTING TO JUSTIFY A FAILURE TO ACHIEVE PRECISE EQUALITY IN THE
CONTEXT OF LEGISLATIVE APPORTIONMENT, IT BY NO MEANS FOLLOWS THAT THE
STATE IS SUBJECT TO A LIGHTER BURDEN OF PROOF OR THAT THE CONTROLLING
CONSTITUTIONAL STANDARD IS IN ANY SENSE DISTINGUISHABLE. 

OUR CONCERN IN KIRKPATRICK V. PREISLER WAS WITH THE CONSTITUTIONAL
REQUIREMENT THAT "AS NEARLY AS IS PRACTICABLE ONE MAN'S VOTE IN A
CONGRESSIONAL ELECTION IS TO BE WORTH AS MUCH AS ANOTHER'S."  WESBERRY
V. SANDERS, 376 U.S. 1, 7-8(1964).  WE REJECTED THE STATE'S ARGUMENT
THAT "THERE IS A FIXED NUMERICAL OR PERCENTAGE POPULATION VARIANCE
SMALL ENOUGH TO BE CONSIDERED DE MINIMIS AND TO SATISFY WITHOUT
QUESTION THE 'AS NEARLY AS PRACTICABLE' STANDARD.  . .  SINCE 'EQUAL
REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE (IS) THE FUNDAMENTAL GOAL
FOR THE HOUSE OF REPRESENTATIVES,' WESBERRY V. SANDERS, SUPRA, AT 18,
THE 'AS NEARLY AS PRACTICABLE' STANDARD REQUIRES THAT THE STATE MAKE A
GOOD-FAITH EFFORT TO ACHIEVE PRECISE MATHEMATICAL EQUALITY.  SEE
REYNOLDS V. SIMS, 377 U.S. 533, 577(1964)."  KIRKPATRICK V. PREISLER,
SUPRA, AT 530-531.  MOREOVER, WE HELD, ID., AT 532, THAT "(IT WAS THE
BURDEN OF THE STATE 'TO PRESENT . . . ACCEPTABLE REASONS FOR THE
VARIATIONS AMONG THE POPULATIONS OF THE VARIOUS . . . DISTRICTS . . . '
SWANN V. ADAMS, SUPRA, AT 443-444." 

THE PRINCIPLES THAT UNDERGIRDED OUR DECISION IN KIRKPATRICK V.
PREISLER ARE THE VERY PRINCIPLES THAT SUPPORTED OUR DECISION IN SWANN
V. ADAMS, A CASE INVOLVING THE APPORTIONMENT OF A STATE LEGISLATURE. 
THE OPINION IN KIRKPATRICK DOES NOT SUGGEST THAT A DIFFERENT STANDARD
MIGHT BE APPLICABLE TO CONGRESSIONAL DISTRICTING.  ON THE CONTRARY, THE
"AS NEARLY AS PRACTICABLE" STANDARD WITH WHICH WE WERE CONCERNED IS
IDENTICAL TO THE STANDARD THAT REYNOLDS V. SIMS SPECIFICALLY MADE
APPLICABLE TO CONTROVERSIES OVER STATE LEGISLATIVE APPORTIONMENT.  SEE
REYNOLDS V. SIMS, SUPRA, AT 577.  SEE ALSO HADLEY V. JUNIOR COLLEGE
DISTRICT, 397 U.S. 50, 56(1970).  AND THE HOLDING IN KIRKPATRICK THAT
THE STATE MUST HEAR THE BURDEN OF JUSTIFYING DEVIATIONS FROM POPULATION
EQUALITY NOT ONLY RESTED SQUARELY AND EXCLUSIVELY ON OUR HOLDING IN
SWANN V. ADAMS, BUT EVEN DEFINED THE TEST BY QUOTATION FROM SWANN.  SEE
KIRKPATRICK V. PREISLER, SUPRA, AT 532. 

IN SWANN V. ADAMS WE HELD THAT VARIATIONS IN THE POPULATION OF
LEGISLATIVE DISTRICTS MUST BE JUSTIFIED BY THE STATE BY PRESENTATION OF
"ACCEPTABLE REASONS FOR THE VARIATIONS."  385 U.S., AT 443.  AND A
COMPARISON OF THE OPINION FOR THE COURT IN SWANN WITH THE VIEWS
EXPRESSED BY TWO JUSTICES IN DISSENT, SEE SWANN V. ADAMS, SUPRA, AT 447
448 (HARLAN, J., DISSENTING), DECISIVELY REFUTES ANY SUGGESTION THAT
UNEQUAL REPRESENTATION WILL BE UPHELD SO LONG AS SOME RATIONAL BASIS
FOR THE DISCRIMINATION CAN BE FOUND.  A SHOWING OF NECESSITY, NOT
RATIONALITY, IS WHAT OUR DECISION IN SWANN REQUIRES. 

IF SWANN DOES NOT ESTABLISH THE POINT WITH SUFFICIENT CLARITY, THEN
SURELY OUR DECISION IN KILGARLIN V. HILL, 386 U.S. 120(1967), WHERE WE
ELUCIDATED AND APPLIED THE PRINCIPLES OF SWANN, REMOVES ALL DOUBT. 
THERE, THE DISTRICT COURT HAD SUSTAINED THE STATE APPORTIONMENT PLAN ON
TWO GROUNDS, ONE OF WHICH WE TERMED A "BURDEN OF PROOF" RULING.  THE
LOWER COURT HELD THAT APPELLANTS "HAD THE BURDEN NOT ONLY OF
DEMONSTRATING THE DEGREE OF VARIANCE FROM THE EQUALITY PRINCIPLE BUT
ALSO OF 'NEGATING) THE EXISTENCE OF ANY STATE OF FACTS WHICH WOULD
SUSTAIN THE CONSTITUTIONALITY OF THE LEGISLATION.'  252 F.SUPP.  404,
414."  ID., AT 122.  WE SQUARELY REJECTED THAT STATEMENT OF THE
CONTROLLING LEGAL STANDARD, AND HELD THAT UNDER SWANN V. ADAMS, "IT IS
QUITE CLEAR THAT UNLESS SATISFACTORILY JUSTIFIED BY THE COURT OR BY THE
EVIDENCE OF RECORD, POPULATION VARIANCES OF THE SIZE AND SIGNIFICANCE
EVIDENT HERE (A TOTAL DEVIATION OF 26.48%) ARE SUFFICIENT TO INVALIDATE
AN APPORTIONMENT PLAN."  IBID.  WE ALSO REJECTED THE DISTRICT COURT'S
SECOND GROUND OF DECISION:  NAMELY, THAT THE DEVIATIONS WERE AMPLY
JUSTIFIED BY THE STATE'S ATTEMPT, WHEREVER POSSIBLE, TO RESPECT COUNTY
BOUNDARIES.  SIGNIFICANTLY, THE OPINION STATED THAT "(WE ARE DOUBTFUL .
. . THAT THE DEVIATIONS EVIDENT HERE ARE THE KIND OF 'MINOR'
VARIATIONS WHICH REYNOLDS V. SIMS INDICATED MIGHT BE JUSTIFIED BY LOCAL
POLICIES COUNSELING THE MAINTENANCE OF ESTABLISHED POLITICAL
SUBDIVISIONS IN APPORTIONMENT PLANS.  377 U.S. 533, 578-579.  BUT WE
NEED NOT REACH THAT CONSTITUTIONAL QUESTION, FOR WE ARE NOT CONVINCED
THAT THE ANNOUNCED POLICY OF THE STATE OF TEXAS NECESSITATED THE RANGE
OF DEVIATIONS BETWEEN LEGISLATIVE DISTRICTS WHICH IS EVIDENT HERE." 
ID., AT 123. 

        III 

I WOULD AFFIRM THE DISTRICT COURT'S DECISION BECAUSE, ON THIS
RECORD, THE COMMONWEALTH OF VIRGINIA FAILED-- JUST AS THE STATE OF
FLORIDA FAILED IN SWANN V. ADAMS AND THE STATE OF TEXAS FAILED IN
KILGARLIN V. HILL-- TO JUSTIFY SUBSTANTIAL VARIATIONS IN THE POPULATION
OF THE DISTRICTS FROM WHICH MEMBERS OF THE HOUSE OF DELEGATES ARE
ELECTED.  THE PANEL THAT HEARD THE CASE BELOW CONSISTED OF FOUR JUDGES,
ALL FROM VIRGINIA, AND I SHARE THEIR UNANIMOUS VIEW THAT THE
COMMONWEALTH FAILED TO PROVE THAT THE VARIATIONS WERE JUSTIFIED BY A
NEED TO INSURE REPRESENTATION OF POLITICAL SUBDIVISIONS OR A NEED TO
RESPECT COUNTY BOUNDARIES IN THE DRAWING OF DISTRICT LINES. 

IF VARIATIONS IN THE POPULATION OF LEGISLATIVE DISTRICTS ARE TO BE
UPHELD, THE COURT MUST DETERMINE, BEFORE TURNING TO THE JUSTIFICATIONS
THAT ARE ASSERTED IN DEFENSE OF THE VARIATIONS, THAT THEY ARE "FREE
FROM ANY TAINT OF ARBITRARINESS OR DISCRIMINATION."  ANTE, AT 325,
QUOTING FROM ROMAN V. SINCOCK, 377 U.S., AT 710.  APPELLEES ALLEGED
BEFORE THE DISTRICT COURT THAT THE LEGISLATURE'S REAPPORTIONMENT PLAN
DID INDEED DISCRIMINATE AGAINST ONE REGION OF THE STATE-- THE NORTHERN
VIRGINIA SUBURBS OF WASHINGTON, D.C.  EACH HOUSE SEAT IN NORTHERN
VIRGINIA WOULD BE UNDERREPRESENTED BY AN AVERAGE OF 4.3% UNDER THE 1971
PLAN, AND SEVERAL WOULD BE UNDERREPRESENTED BY AS MUCH AS 6.3%.  IN
VIEW OF WHAT IT TERMED THE "PERVASIVE UNDER-REPRESENTATION IN DISTRICTS
IN NORTHERN VIRGINIA," 330 F.SUPP., AT 1146, THE DISTRICT COURT ORDERED
THE TRANSFER OF ONE DELEGATE OUT OF THE SYSTEMATICALLY OVERREPRESENTED
TIDEWATER REGION AND INTO NORTHERN VIRGINIA. 

IN ABATE V. MUNDT, SUPRA, AT 185-186, WE POINTED OUT THAT WE HAVE 

"NEVER SUGGESTED THAT CERTAIN GEOGRAPHIC AREAS OR POLITICAL
INTERESTS ARE ENTITLED TO DISPROPORTIONATE REPRESENTATION.  . . 

   "ACCORDINGLY, WE HAVE UNDERSCORED THE DANGER OF APPORTIONMENT

  STRUCTURES THAT CONTAIN A BUILT-IN BIAS TENDING TO FAVOR

  PARTICULAR GEOGRAPHIC AREAS OR POLITICAL INTERESTS OR WHICH

  NECESSARILY WILL TEND TO FAVOR, FOR EXAMPLE, LESS POPULOUS

  DISTRICTS OVER THEIR MORE HIGHLY POPULATED NEIGHBORS, SEE HADLEY

  V. JUNIOR COLLEGE DISTRICT, 397 U.S. 50, 57-58(1970)." 

THE DISTRICT COURT FOUND AS A FACT THAT THE 1971 PLAN DID INCLUDE A
"BUILT-IN BIAS TENDING TO FAVOR (A) PARTICULAR GEOGRAPHIC AREA." 
CONVENIENTLY, THE COURT DISCERNS NO NEED EVEN TO ACKNOWLEDGE THIS
CRITICAL FINDING OF FACT, AND SETS IT ASIDE WITHOUT EXPLANATION.  WE
HAVE NO BASIS FOR CONCLUDING THAT THE FINDING IS CLEARLY ERRONEOUS, AND
THAT FINDING REQUIRES AN AFFIRMANCE OF THE DISTRICT COURT'S DECISION
WITHOUT REGARD TO THE COMMONWEALTH'S ASSERTED JUSTIFICATIONS FOR THE
INEQUALITIES IN DISTRICT POPULATION. 

BUT EVEN ASSUMING THAT THE COMMONWEALTH'S PLAN CAN BE CONSIDERED
FREE OF ANY "TAINT OF ARBITRARINESS OR DISCRIMINATION," APPELLANTS HAVE
FAILED TO MEET THEIR BURDEN OF JUSTIFYING THE INEQUALITIES.  THEY
INSIST THAT THE LEGISLATURE HAS FOLLOWED A CONSISTENT PRACTICE OF
DRAWING DISTRICT LINES IN CONFORMITY WITH COUNTY BOUNDARIES.  BUT A
SHOWING THAT A STATE HAS FOLLOWED SUCH A PRACTICE IS STILL A LONG STEP
FROM THE NECESSARY SHOWING THAT THE STATE MUST FOLLOW THAT PRACTICE. 
NEITHER IN THE VIRGINIA CONSTITUTION NOR IN ANY ACT OF THE ASSEMBLY HAS
VIRGINIA EXPLICITLY INDICATED ANY INTEREST IN PRESERVING THE INTEGRITY
OF COUNTY LINES OR IN PROVIDING REPRESENTATION OF POLITICAL
SUBDIVISIONS AS POLITICAL SUBDIVISIONS.  CF. REYNOLDS V. SIMS, SUPRA,
AT 580-581.  ON THE CONTRARY, THE CONSTITUTION ESTABLISHES A SINGLE
STANDARD FOR BOTH LEGISLATIVE APPORTIONMENT AND CONGRESSIONAL
DISTRICTING, AND THAT STANDARD REQUIRES ONLY THAT LINES BE DRAWN SO AS
TO INSURE, "AS NEARLY AS IS PRACTICABLE," REPRESENTATION IN PROPORTION
TO POPULATION.  /8/  AND THE ORIGINS OF THE CONSTITUTIONAL PROVISION
MAKE CLEAR THAT EQUALITY IN DISTRICT POPULATION, NOT THE REPRESENTATION
OF POLITICAL SUBDIVISIONS, IS THE COMMONWEALTH'S PRE-EMINENT GOAL. 
/9/ 

MOREOVER, IN ASSERTING ITS INTEREST IN PRESERVING THE INTEGRITY OF
COUNTY BOUNDARIES, THE COMMONWEALTH OFFERS NOTHING MORE THAN VAGUE
REFERENCES TO "LOCAL LEGISLATION," WITHOUT DESCRIBING SUCH LEGISLATION
WITH PRECISION, WITHOUT INDICATING WHETHER SUCH LEGISLATION AMOUNTS TO
A SIGNIFICANT PROPORTION OF THE LEGISLATURE'S BUSINESS, AND WITHOUT
DEMONSTRATING THAT THE DISTRICT COURT'S PLAN WOULD MATERIALLY AFFECT
THE TREATMENT OF SUCH LEGISLATION.  /10/     THE COURT ASSUMES THAT
COUNTY REPRESENTATION IS AN IMPORTANT GOAL OF VIRGINIA'S
REAPPORTIONMENT PLAN, ANTE, AT 326-328, AND APPELLANTS SUGGEST THAT THE
PLAN CAN BE JUSTIFIED, AT LEAST IN PART, BY THE EFFORT "TO GIVE AN
INDEPENDENT VOICE TO THE CITIES AND COUNTIES (THE LEGISLATURE) DAILY
GOVERNS."  BRIEF FOR APPELLANT COMMONWEALTH OF VIRGINIA 33.  IF COUNTY
REPRESENTATION IS INDEED THE COMMONWEALTH'S GOAL, THEN THE
APPORTIONMENT PLAN ADOPTED IN 1971 ITSELF FALLS FAR SHORT OF THAT
OBJECTIVE.  APPELLANTS DESCRIBE THE PROBLEM IN THE FOLLOWING TERMS: 

     "UNDER THE COURT'S PLAN, A SITUATION COULD ARISE WHERE THE
1602

  CITIZENS OF WYTHE COUNTY, VIRGINIA, WHO WERE PLACED IN THE SIXTH

  LEGISLATIVE DISTRICT ARE OPPOSED TO LOCAL LEGISLATION PENDING IN

  THE GENERAL ASSEMBLY FOR THEIR COUNTY.  THEY MUST VOICE SUCH

  OPPOSITION TO THE DELEGATES REPRESENTING 91,620 OTHER PERSONS IN

  THE SIXTH LEGISLATIVE DISTRICT COMPOSED OF THE COUNTIES OF

  CARROLL, FLOYD AND MONTGOMERY AND THE CITY OF RADFORD, RATHER

  THAN OPPOSE ONLY THEIR 20,537 FELLOW CITIZENS OF WYTHE COUNTY." 

  BRIEF FOR APPELLANT COMMONWEALTH OF VIRGINIA 27. 

THAT ARGUMENT ASSUMES THAT SOME SIGNIFICANT NUMBER OF ISSUES WILL HAVE
AN IMPACT SQUARELY ON WYTHE COUNTY, WHILE HAVING NO IMPACT, OR A
DIFFERING IMPACT, ON THE SURROUNDING AREAS.  FOR ON ISSUES AFFECTING
THE ENTIRE REGION OR THE COMMONWEALTH AS A WHOLE-- PRESUMABLY THE VAST
MAJORITY OF ISSUES-- THE CRITICAL CONCERN IS NOT THAT EACH VOTE IN
WYTHE COUNTY BE CAST IN A SINGLE DISTRICT, BUT THAT EACH VOTE CAST BE
PRECISELY EQUAL IN WEIGHT TO VOTES IN EVERY OTHER PART OF THE
COMMONWEALTH.  AND THE ARGUMENT ALSO ASSUMES THAT THE ISSUES AFFECTING
ONLY ONE COUNTY ARE OF PREDOMINANT CONCERN TO THE VOTERS.  UNDER A
REPRESENTATIVE FORM OF GOVERNMENT, THE VOTERS PARTICIPATE INDIRECTLY
THROUGH THE ELECTION OF DELEGATES.  IT SHOULD BE OBVIOUS THAT AS A
VOTER'S CONCERN WITH REGIONAL OR STATEWIDE ISSUES INCREASES RELATIVE TO
THIS INTEREST IN COUNTY ISSUES, THE SIGNIFICANCE OF VOTING OUTSIDE THE
COUNTY WILL CORRESPONDINGLY DIMINISH. 

BUT EVEN IF A SUBSTANTIAL NUMBER OF ISSUES DO HAVE AN IMPACT
PRIMARILY ON A SINGLE COUNTY, AND EVEN IF THOSE ISSUES ARE OF DEEP
CONCERN TO THE VOTERS, IT STILL DOES NOT FOLLOW THAT THE LEGISLATURE'S
APPORTIONMENT PLAN IS A RATIONAL ATTEMPT TO SERVE AN IMPORTANT STATE
INTEREST.  THE PLAN WOULD BY NO MEANS PROVIDE, EVEN IN THE
LEGISLATURE'S OWN TERMS, EFFECTIVE REPRESENTATION FOR EACH COUNTY. 
THUS, THE FOURTH LEGISLATIVE DISTRICT, WHICH WOULD ELECT ONE DELEGATE
UNDER THE 1971 PLAN, CONSISTS OF WYTHE, GRAYSON, AND BLAND COUNTIES
ALONG WITH THE CITY OF GALAX.  YET WYTHE COUNTY ALONE, ACCORDING TO
APPELLANTS' FIGURES, COMPRISES 22,139 OF THE 49,279 PERSONS RESIDENT IN
THE DISTRICT.  SINCE WYTHE COUNTY MAKES UP ALMOST ONE-HALF OF THE
POPULATION OF THE FOURTH DISTRICT, THE DISTRICT'S DELEGATE IS LIKELY TO
CHAMPION WYTHE COUNTY'S CAUSE SHOULD AN ISSUE ARISE THAT PITS ITS
INTEREST AGAINST THE INTERESTS OF GRAYSON OR BLAND COUNTY OR THE CITY
OF GALAX. 

IN SHORT, THE BEST THAT CAN BE SAID OF APPELLANTS' EFFORTS TO SECURE
COUNTY REPRESENTATION IN THAT THE PLAN CAN BE EFFECTIVE ONLY WITH
RESPECT TO SOME UNSPECIFIED BUT IN ALL LIKELIHOOD SMALL NUMBER OF
ISSUES THAT AFFECT A SINGLE COUNTY AND THAT ARE OVERWHELMINGLY
IMPORTANT TO THE VOTERS OF THAT COUNTY; AND EVEN THEN IT PROVIDES
EFFECTIVE REPRESENTATION ONLY WHERE THE AFFECTED COUNTY REPRESENTS A
LARGE ENOUGH PERCENTAGE OF THE VOTERS IN THE DISTRICT TO HAVE A
SIGNIFICANT IMPACT ON THE ELECTION OF THE DELEGATE.  /11/  BUT EVEN IF
COUNTY REPRESENTATION WERE, IN FACT, A STRONG AND LEGITIMATE GOAL OF
THE COMMONWEALTH, AND EVEN IF THE 1971 PLAN DID REPRESENT A RATIONAL
EFFORT TO SERVE THAT GOAL, IT IS STILL NOT CLEAR THAT THE LEGISLATURE'S
PLAN SHOULD BE UPHELD.  THE PLAN PREPARED BY THE DISTRICT COURT WOULD
ACHIEVE A MUCH HIGHER DEGREE OF EQUALITY IN DISTRICT POPULATION, AND IT
WOULD ACCOMPLISH THAT SALUTARY GOAL WITH MINIMAL DISRUPTION OF THE
LEGISLATURE'S EFFORT TO AVOID FRAGMENTING COUNTIES.  OF THE 134
POLITICAL SUBDIVISIONS IN THE COMMONWEALTH, ONLY 12 WOULD BE DIVIDED BY
THE DISTRICT COURT'S PLAN.  MORE SIGNIFICANT, THE NUMBER OF PERSONS
RESIDENT IN VOTING DISTRICTS THAT WOULD BE CUT OUT OF ONE COUNTY OR
CITY AND SHIFTED TO ANOTHER IS 64,738, OUT OF THE TOTAL STATE
POPULATION OF 4,648,494.  THUS, EVEN MAKING EACH OF THE LOGICAL AND
EMPIRICAL ASSUMPTIONS IMPLICIT IN THE VIEW THAT VIOLATING COUNTY LINES
WOULD EFFECTIVELY DISENFRANCHISE CERTAIN PERSONS ON CERTAIN LOCAL
ISSUES, THE NUMBER OF PERSONS AFFECTED WOULD STILL BE LESS THAN 1 1/2%
OF THE TOTAL STATE POPULATION. 

        IV 

ON THIS RECORD-- WITHOUT ANY SHOWING OF THE SPECIFIC NEED FOR COUNTY
REPRESENTATION OR A SHOWING OF HOW SUCH REPRESENTATION CAN BE
MEANINGFULLY PROVIDED TO SMALL COUNTIES WHOSE VOTES WOULD BE SUBMERGED
IN A MULTI-COUNTY DISTRICT-- I SEE NO BASIS WHATSOEVER FOR UPHOLDING
THE ASSEMBLY'S 1971 PLAN AND THE RESULTING SUBSTANTIAL VARIATIONS IN
DISTRICT POPULATION.  ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE
DISTRICT COURT HOLDING THE PLAN INVALID UNDER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT. 

/1/  THE FULL EXTENT OF THE DEVIATION MAY, IN FACT, BE SUBSTANTIALLY
IN EXCESS OF 16.4%, AS APPELLEES MAINTAIN AND APPELLANTS SEEMINGLY
CONCEDE.  SEE INFRA, AT 335-338. 

/2/  SEE, E.G., AVERY V. MIDLAND COUNTY, 390 U.S. 474(1968);
REYNOLDS V. SIMS, 377 U.S. 533(1964); ROMAN V. SINCOCK, 377 U.S.
695(1964). 

/3/  SEE, E.G., CUMMINGS V. MESKILL, 341 F.SUPP.  139 (CONN. 1972)
(MAXIMUM DEVIATION FOR HOUSE, 7.83%, AND FOR SENATE, 1.81%); IN RE
LEGISLATIVE DISTRICTING OF GENERAL ASSEMBLY, 193 N.W.2D 784(1972)
(HOUSE, 3.8%, AND SENATE, 3.2%); GRAVES V. BARNES, 343 F.SUPP.  704 (WD
TEX. 1972) (9.9%); TROXLER V. ST. JOHN THE BAPTIST PARISH POLICE JURY,
331 F.SUPP.  222 (ED LA. 1971) (6.2%); IN RE LEGISLATIVE DISTRICTING OF
GENERAL ASSEMBLY, 175 N.W.2D 20(1970) (HOUSE, 13%, AND SENATE, 12.1%);
DRIGGERS V. GALLION, 308 F.SUPP.  632 (MD ALA. 1969) (AT LEAST 10%);
SKOLNICK V. ILLINOIS STATE ELECTORAL BD., 307 F.SUPP.  691 (ND ILL.
1969) (HOUSE, 16.9%, AND SENATE, 14.7%); LONG V. DOCKING, 282 F.SUPP. 
256, 283 F.SUPP.  539 (KAN. 1968) (16.6%). 

/4/  "THE DEVIATIONS FROM ABSOLUTE EQUALITY OF POPULATION ARRIVED AT
BY THE REDISTRICTING OF THE HOUSE RANGED FROM AN UNDER-REPRESENTATION
OF PLUS 9.6% TO AN OVER-REPRESENTATION OF MINUS 6.8%, OR A TOTAL
VARIANCE OF 16.4%.  AS NOTED BY THE COURT, HOWEVER, THE 42ND DISTRICT,
A FLOATER SHARED BY THE CITIES OF CHESAPEAKE, PORTSMOUTH AND VIRGINIA
BEACH WOULD HAVE AS TO THAT ONE INSTANCE INCREASED THE TOTAL VARIATION
TO 23.6%."  SEE ALSO REPLY BRIEF FOR APPELLANT CITY OF VIRGINIA BEACH 3
4. 

/5/  THE DEVIATION WOULD BE SLIGHTLY IN EXCESS OF 8% IF FLOTERIAL
DISTRICTS WERE WEIGHED ACCORDING TO APPELLEES' METHOD OF CALCULATION. 
330 F.SUPP.  1138, 1147 N. 9. 

/6/  THE ISOLATED DISTRICT COMPRISES ACCOMACK AND NORTHAMPTON
COUNTIES.  THOSE COUNTIES, KNOWN AS THE EASTERN SHORE, ARE SEPARATED
FROM THE MAINLAND OF VIRGINIA BY CHESAPEAKE BAY AND THE ATLANTIC
OCEAN.  THEY ARE CONTIGUOUS ONLY TO THE STATE OF MARYLAND.  THE
DISTRICT, THE 46TH, IS OVERREPRESENTED BY 6.5%. 

/7/  REYNOLDS V. SIMS, SUPRA, AT 567:  "(THE BASIC PRINCIPLE OF
REPRESENTATIVE GOVERNMENT REMAINS, AND MUST REMAIN, UNCHANGED-- THE
WEIGHT OF A CITIZEN'S VOTE CANNOT BE MADE TO DEPEND ON WHERE HE LIVES. 
POPULATION IS, OF NECESSITY, THE STARTING POINT FOR CONSIDERATION AND
THE CONTROLLING CRITERION FOR JUDGMENT IN LEGISLATIVE APPORTIONMENT
CONTROVERSIES."  SEE ALSO ID., AT 579. 

/8/  CF., E.G., THE APPORTIONMENT PROVISION IN THE INDIANA
CONSTITUTION.  WHITCOMB V. CHAVIS, 403 U.S. 124, 136 N. 14(1971): 

"A SENATORIAL OR REPRESENTATIVE DISTRICT, WHERE MORE THAN ONE COUNTY
SHALL CONSTITUTE A DISTRICT, SHALL BE COMPOSED OF CONTIGUOUS COUNTIES;
AND NO COUNTY, FOR SENATORIAL APPORTIONMENT, SHALL EVER BE DIVIDED." 
ART. 4, SEC. 6. 

/9/ PRIOR TO ITS AMENDMENT IN 1971, THE CONSTITUTION PROVIDED THAT
"(THE GENERAL ASSEMBLY SHALL BY LAW APPORTION THE STATE INTO DISTRICTS,
CORRESPONDING WITH THE NUMBER OF REPRESENTATIVES TO WHICH IT MAY BE
ENTITLED IN THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE UNITED
STATES; WHICH DISTRICTS SHALL BE COMPOSED OF CONTIGUOUS AND COMPACT
TERRITORY CONTAINING AS NEARLY AS PRACTICABLE, AN EQUAL NUMBER OF
INHABITANTS."  SEC. 55.  AT THE SAME TIME, THE CONSTITUTION PROVIDED,
WITH RESPECT TO LEGISLATIVE APPORTIONMENT, ONLY THAT "(THE PRESENT
APPORTIONMENT OF THE COMMONWEALTH INTO SENATORIAL AND HOUSE DISTRICTS
SHALL CONTINUE; BUT A REAPPORTIONMENT SHALL BE MADE IN THE YEAR
NINETEEN HUNDRED AND THIRTY-TWO AND EVERY TEN YEARS THEREAFTER."  SEC.
43.  PLAINLY, THE ADOPTION IN 1971 OF A PROVISION, ART. II, SEC. 6,
WHICH SETS A SINGLE STANDARD TO GOVERN LEGISLATIVE DISTRICTING AND
CONGRESSIONAL APPORTIONMENT, INDICATES THAT IN THE MINDS OF THE
DRAFTSMEN THE SAME CONSIDERATIONS SHOULD APPLY IN THE TWO SITUATIONS. 
SEE COMMISSION ON CONSTITUTIONAL REVISION, REPORT ON THE CONSTITUTION
OF VIRGINIA 117(1969):  "THERE IS NO REASON TO MAKE ANY DISTINCTION
BETWEEN GENERAL ASSEMBLY AND CONGRESSIONAL APPORTIONMENT.  FOR THIS
REASON, THE PROPOSED SECTION (ART. II, SEC. 6) COMBINES THE PROVISIONS
OF SECTIONS 43 AND 55 SO THAT A COMMON SET OF PRINCIPLES APPLIES TO
APPORTIONMENT OF LEGISLATIVE SEATS AND CONGRESSIONAL SEATS." 

/10/  APPELLANTS MAINTAIN THAT: 

"(LOCAL GOVERNMENTS CARRY OUT MUCH OF THE VARIOUS RESPONSIBILITIES
OF STATE GOVERNMENT AS WELL AS HAVING DIRECT CONCERN IN THE ENACTMENT
OF NUMEROUS LOCAL LEGISLATIVE ENACTMENTS.  THIS ALONE JUSTIFIES
VIRGINIA'S TRADITION OF ADHERENCE TO POLITICAL JURISDICTIONS. 
MOREOVER, THE REVISED VIRGINIA CONSTITUTION NOW ALLOWS FOR THE FIRST
TIME SPECIAL OR LOCAL LEGISLATION FOR COUNTIES AS WELL AS FOR CITIES. 
REVISED CONSTITUTION OF VIRGINIA, ARTICLE VII, SECTION 2.  THOSE
PROVISIONS NOW PERMIT COUNTIES THE CONSTITUTIONAL FLEXIBILITY FORMERLY
AFFORDED ONLY TO CITIES IN PROVIDING SERVICES FOR THEIR CITIZENS." 
BRIEF FOR APPELLANT COMMONWEALTH OF VIRGINIA 27. 

THE CONSTITUTIONAL PROVISION TO WHICH APPELLANTS REFER DECLARES THAT
"(THE GENERAL ASSEMBLY MAY ALSO PROVIDE BY SPECIAL ACT FOR THE
ORGANIZATION, GOVERNMENT, AND POWERS OF ANY COUNTY, CITY, TOWN, OR
REGIONAL GOVERNMENT, INCLUDING SUCH POWERS OF LEGISLATION, TAXATION,
AND ASSESSMENT AS THE GENERAL ASSEMBLY MAY DETERMINE . . . "  IT SHOULD
BE NOTED, HOWEVER, THAT THIS PROVISION PERMITS THE DELEGATION OF BROAD
POWERS TO LOCAL GOVERNMENTS.  IT DOES NOT SPEAK TO THE ISSUE--
OBVIOUSLY OF GREAT CONCERN TO THE RESIDENTS OF EACH POLITICAL
SUBDIVISION-- OF THE MANNER IN WHICH THAT DELEGATED POWER WILL BE
EXERCISED BY THE LOCAL GOVERNMENT. 

/11/  TO REALIZE THE GOAL OF COUNTY REPRESENTATION IT WOULD, OF
COURSE, BE NECESSARY TO ACCORD EACH COUNTY AT LEAST ONE
REPRESENTATIVE.  IN THE CASE OF VIRGINIA SUCH A PLAN COULD NOT BE
IMPLEMENTED WITHOUT GENERATING VAST AND UNCONSTITUTIONAL DISPARITIES IN
THE POPULATION OF THE DISTRICTS.  AND SUCH A PLAN CLEARLY COULD NOT BE
JUSTIFIED BY INVOKING THE SO-CALLED "FEDERAL ANALOGY."  SEE REYNOLDS V.
SIMS, SUPRA, AT 571-577. 

ANDREW P. MILLER, ATTORNEY GENERAL OF VIRGINIA, ARGUED THE CAUSE FOR
APPELLANTS IN NO. 71-364.  WITH HIM ON THE BRIEFS WERE VANN H. LEFCOE,
ASSISTANT ATTORNEY GENERAL, AND ANTHONY F. TROY, SPECIAL ASSISTANT
ATTORNEY GENERAL.  HARRY FRAZIER III ARGUED THE CAUSE FOR APPELLANT IN
NO. 71-373.  WITH HIM ON THE BRIEFS WERE J. DALE BIMSON AND JOHN B.
ASHTON.  ROBERT L. WEINBERG, PRO SE, FILED A JURISDICTIONAL STATEMENT
FOR APPELLANT IN NO. 71-444. 

HENRY E. HOWELL, JR., PRO SE, ARGUED THE CAUSE FOR APPELLEES HOWELL
ET AL. IN BOTH CASES.  WITH HIM ON THE BRIEF WAS PETER K. BABALAS. 
CLIVE L. DUVAL II, PRO SE, ARGUED THE CAUSE IN BOTH CASES.  WITH HIM ON
THE BRIEF WAS EDMUND D. CAMPBELL.  HENRY L. MARSH III, S. W. TUCKER,
ARMAND DERFNER, R. STEPHEN BROWNING, AND GARY GREENBERG FILED A BRIEF
FOR APPELLEES THORNTON ET AL. IN NO. 71-364.  LEONARD H. DAVIS AND
GORDON B. TAYLOE, JR., FILED A BRIEF FOR APPELLEE CITY OF NORFOLK IN
NO. 71-373.  MESSRS.  MILLER, TROY, AND LEFCOE FILED A MOTION TO AFFIRM
FOR APPELLEES IN NO. 71-444. 
..END :






TACON V. ARIZONA, 410 U.S. 351 


       TACON V. ARIZONA

        CERTIORARI TO THE SUPREME COURT OF ARIZONA

        NO. 71-6060.  ARGUED JANUARY 9, 1973-- DECIDED FEBRUARY 21,

           1973 


WHERE ISSUES PRESENTED IN PETITION FOR CERTIORARI WERE NOT RAISED
BELOW NOR PASSED UPON BY THE STATE'S HIGHEST COURT, AND WHERE THE ONLY
ISSUE ACTUALLY LITIGATED DOES NOT ALONE JUSTIFY EXERCISE OF CERTIORARI
JURISDICTION, THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY
GRANTED. 

107 ARIZ. 353, 488 P.2D 973, CERTIORARI DISMISSED AS IMPROVIDENTLY
GRANTED. 

PER CURIAM. 

PETITIONER, WHILE A SOLDIER IN THE UNITED STATES ARMY STATIONED AT
FORT HUACHUCA, ARIZONA, WAS ARRESTED AND CHARGED BY STATE AUTHORITIES
WITH THE SALE OF MARIHUANA IN VIOLATION OF APPLICABLE STATE LAW.  PRIOR
TO HIS TRIAL ON THIS CHARGE, THE PETITIONER WAS DISCHARGED FROM THE
ARMY AND VOLUNTARILY LEFT ARIZONA FOR NEW YORK.  WHEN THE TRIAL DATE
WAS SET, THE PETITIONER AND REQUESTED HIM TO RETURN TO ARIZONA. 
ASSERTEDLY BECAUSE HE LACKED TRAVEL FUNDS, THE PETITIONER DID NOT
APPEAR IN ARIZONA ON THE DATE SET FOR TRIAL.  UNDER THESE
CIRCUMSTANCES, THE TRIAL PROCEEDED WITHOUT THE PETITIONER'S PRESENCE,
AS AUTHORIZED BY STATE PROCEDURE.  THE JURY RETURNED A GUILTY VERDICT. 
AFTER THE VERDICT WAS RENDERED, THE PETITIONER OBTAINED THE NECESSARY
TRAVEL FUNDS AND RETURNED TO ARIZONA IN TIME FOR HIS SENTENCING.  HE
WAS SENTENCED TO NOT LESS THAN FIVE NOR MORE THAN FIVE AND ONE-HALF
YEARS IN PRISON.  THE ARIZONA SUPREME COURT AFFIRMED HIS CONVICTION. 
107 ARIZ. 353, 488 P.2D 973 (1971). 

THE PETITION FOR CERTIORARI IN THIS CASE PRESENTED QUESTIONS AS TO
CONSTITUTIONAL LIMITS ON THE STATES' AUTHORITY TO TRY IN ABSENTIA A
PERSON WHO HAS VOLUNTARILY LEFT THE STATE AND IS UNABLE, FOR FINANCIAL
REASONS, TO RETURN TO THAT STATE.  UPON REVIEWING THE RECORD, HOWEVER,
IT APPEARS THAT THESE BROAD QUESTIONS WERE NOT RAISED BY THE PETITIONER
BELOW NOR PASSED UPON BY THE ARIZONA SUPREME COURT.  WE CANNOT DECIDE
ISSUES RAISED FOR THE FIRST TIME HERE.  CARDINALE V. LOUISIANA, 394
U.S. 437 (1969).  THE ONLY RELATED ISSUE ACTUALLY RAISED BELOW WAS
WHETHER PETITIONER'S CONDUCT AMOUNTED TO A KNOWING AND INTELLIGENT
WAIVER OF HIS RIGHT TO BE PRESENT AT TRIAL.  SINCE THIS IS PRIMARILY A
FACTUAL ISSUE WHICH DOES NOT, BY ITSELF, JUSTIFY THE EXERCISE OF OUR
CERTIORARI JURISDICTION, THE WRIT OF CERTIORARI IS DISMISSED AS
IMPROVIDENTLY GRANTED. 

              IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

PETITIONER, WHILE IN THE ARMED SERVICES, WAS STATIONED IN ARIZONA
AND WHILE THERE WAS ARRESTED AND CHARGED WITH THE UNLAWFUL SALE OF
MARIHUANA.  THAT WAS ON FEBRUARY 24, 1969.  HIS COUNSEL ASKED FOR A
CONTINUANCE OF THE TRIAL UNTIL APRIL APRIL 22, 1969, WHICH WAS
GRANTED.  BUT NO TRIAL DATE WAS SET AT THAT TIME, ONE BEING
SUBSEQUENTLY SET FOR MARCH 31, 1970.  IN THE MEANTIME, PETITIONER HAD
BEEN DISCHARGED FROM THE ARMY AND LEFT ARIZONA FOR NEW YORK AND GIVE
HIS ATTORNEY HIS NEW YORK ADDRESS.  THE ATTORNEY SENT WORD BY LETTER ON
MARCH 3, 1970, THAT THE TRIAL WOULD START MARCH 31 AND ASKED THAT HE
RETURN A WEEK EARLY FOR PREPARATION.  PETITIONER RECEIVED THAT LETTER
MARCH 6 OR 7, BUT HAD NO FUNDS TO RETURN.  HE APPARENTLY IN GOOD FAITH
TRIED TO RAISE THE MONEY BUT WAS NOT SUCCESSFUL.  HE EVENTUALLY DID
SUCCEED AND ARRIVED IN ARIZONA APRIL 2.  BUT THE TRIAL WAS OVER. 
PETITIONER WAS CONVICTED IN ABSENTIA AND SENTENCED TO NOT LESS THAN
FIVE YEARS NOR MORE THAN FIVE AND ONE-HALF YEARS.  ON APPEAL, THE
ARIZONA SUPREME COURT AFFIRMED.  107 ARIZ. 353, 488 P.2D 973. 

UNDER RULE 231 OF ARIZONA'S RULES OF CRIMINAL PROCEDURE, A TRIAL MAY
BE CONDUCTED IN THE DEFENDANT'S ABSENCE "IF HIS ABSENCE IS VOLUNTARY." 
ID., AT 355, 488 P.2D, AT 975.  THE ARIZONA SUPREME COURT HELD THAT
THERE HAD BEEN "A KNOWING AND INTELLIGENT WAIVER OF HIS RIGHT TO BE
PRESENT AT THE TRIAL."  ID., AT 357, 488 P.2D AT 977.  THE FEDERAL RULE
OF A KNOWING AND INTELLIGENT WAIVER OF HIS RIGHT TO CONFRONTATION AND
TO BE PRESENT AT THE TRIAL OF HIS CASE, CF. IBID., WAS THE TEST APPLIED
BY THE ARIZONA SUPREME COURT. 

THE SIXTH AMENDMENT IS APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH.  GIDEON V. WAINWRIGHT, 372, 372 U.S. 335; POINTER V. TEXAS,
380 U.S. 400, 406; WASHINGTON V. TEXAS, 388 U.S. 14.  THE RIGHT "TO BE
CONFRONTED WITH THE WITNESSES AGAINST" HIM-- THE RIGHT OF CONFRONTATION
IN THE POPULAR SENSE-- MEANS A "FACE-TO-FACE" MEETING.  AS STATED IN
ILLINOIS V. ALLEN, 397 U.S. 337, 338:  "ONE OF THE MOST BASIC OF THE
RIGHTS GUARANTEED BY THE CONFRONTATION CLAUSE IS THE ACCUSED'S RIGHT TO
BE PRESENT IN THE COURTROOM AT EVERY STAGE OF HIS TRIAL." 

IT IS SAID BY THE COURT THAT THE BROAD ISSUE OF WHETHER A DEFENDANT
CHARGED WITH A FELONY CAN EVER WAIVE HIS RIGHT TO BE PRESENT AT TRIAL
IS NOT PROPERLY BEFORE US, SINCE PETITIONER NEGLECTED TO PLEAD THE
ISSUE IN THIS MANNER BEFORE THE STATE COURTS.  THE ISSUE WHICH
PETITIONER DID RAISE IN THE STATE COURTS WAS WHETHER THE EVIDENCE IN
THE RECORD WAS SUFFICIENT TO SHOW THAT HIS ABSENCE FROM TRIAL WAS
VOLUNTARY, I.E., THAT HE MADE A KNOWING AND INTELLIGENT WAIVER OF HIS
RIGHT TO BE PRESENT.  THE COURT DISPOSES OF THIS "RELATED ISSUE" BY
HOLDING THAT IT IS A FACTUAL ISSUE THAT DOES NOT JUSTIFY THE EXERCISE
OF OUR JURISDICTION.  BUT THE QUESTION WHETHER A CONSTITUTIONAL RIGHT
HAS BEEN WAIVED ALWAYS INVOLVES FACTUAL MATTERS.  "WHEN CONSTITUTIONAL
RIGHTS TURN ON THE RESOLUTION OF A FACTUAL DISPUTE WE ARE DUTY BOUND TO
MAKE AN INDEPENDENT EXAMINATION OF THE EVIDENCE IN THE RECORD." 
BROOKHART V. JANIS, 384 U.S. 1, 4 N.4. 

THE QUESTION OF A KNOWING AND INTELLIGENT WAIVER OF THIS MAN'S
FEDERAL CONSTITUTIONAL RIGHT TO BE PRESENT AT HIS TRIAL IS FAR FROM
FRIVOLOUS.  PETITIONER WAS NOT FLEEING THE JURISDICTION OR GOING INTO
HIDING.  HE KNEW OF THE TRIAL DATE AND WAS TRYING TO RAISE THE
NECESSARY FUNDS TO TRAVEL WEST.  A SECOND LETTER DATED MARCH 18, SENT
BY HIS ATTORNEY, SUGGESTED THAT A GUILTY PLEA TO BE REDUCED CHARGE
MIGHT BE ACCEPTABLE.  BUT DUE TO A MAIL STRIKE PETITIONER DID NOT
RECEIVE THAT LETTER UNTIL APRIL 1, WHEN HIS TRIAL WAS OVER.  ON MARCH
24 PETITIONER'S COUNSEL SENT HIM A TELEGRAM STATING THAT TRIAL WOULD
PROCEED MARCH 31 WHETHER PETITIONER WAS PRESENT OR NOT.  BUT THAT
TELEGRAM WAS NEVER RECEIVED EVEN BY WESTERN UNION IN NEW YORK.  ON
MARCH 30, PETITIONER CALLED HIS LAWYER, WHO TOLD HIM THE COURT WOULD
PROCEED WITH THE TRIAL EVEN THOUGH THE ACCUSED WAS ABSENT.  PETITIONER
REPLIED THAT HE WOULD ATTEMPT TO MAKE IT.  BUT, AS NOTED, HE DID NOT
ARRIVE UNTIL APRIL 2. 

ON THIS RECORD, ONE CANNOT SAY THAT PETITIONER HAD KNOWINGLY AND
INTELLIGENTLY WAIVED HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION. 
HERETOFORE, WE HAVE NEVER TREATED THE QUESTION OF WAIVER CAVALIERLY. 
WE INDULGE EVERY PRESUMPTION AGAINST THE WAIVER OF A CONSTITUTIONAL
RIGHT.  WE SAID IN A RATE CASE THAT WE "DO NOT PRESUME ACQUIESCENCE IN
THE LOSS OF FUNDAMENTAL RIGHTS."  OHIO BELL TEL. CO. V. COMMISSION, 301
U.S. 292, 307.  I WOULD TREAT A HAPLESS VICTIM OF A CRIMINAL MARIHUANA
CHARGE EQUALLY AS I WOULD A CORPORATE VICTIM OF AN INCOMPETENT
REGULATORY COMMISSION. 

WHEN WE DECIDE TO DISMISS THIS CASE, WE MULTIPLY THE BURDENS OF THE
FEDERAL COURT SYSTEM.  THE ISSUE OF WAIVER VEL NON OF THE SIXTH
AMENDMENT RIGHT IS NOW READY FOR DECISION.  WHEN WE DISMISS, WE IN
EFFECT TELL PETITIONER FIRST TO TRY STATE HABEAS CORPUS AND THEN
FEDERAL HABEAS CORPUS.  WHEN INDIGENTS HAD NO COUNSEL, THESE TRIALS
WERE OFTEN PREGNANT WITH ERROR, AND HABEAS CORPUS WAS THE NORMAL
REMEDY.  BUT WHERE THE ISSUE IS EXPOSED ON APPEAL, IT SHOULD BE
RESOLVED THEN AND THERE.  WHEN WE FAIL TO TAKE THAT STEP HERE, WE ASK
PETITIONER AND HIS COUNSEL TO EXHAUST THEMSELVES DURING THE NEXT FIVE
YEARS WHILE THEY SEEK A FEDERAL DETERMINATION OF THEIR FEDERAL RIGHT. 

THE LAW OF WAIVER THAT GOVERNS HERE WAS STATED BY MR. JUSTICE BLACK
IN AN EARLIER CASE MANY YEARS AGO.  HE RULED ON WAIVER OF COUNSEL; BUT
THERE IS NO DIFFERENCE WHEN IT COMES TO WAIVER OF THE RIGHT OF
CONFRONTATION.  "A WAIVER IS ORDINARILY AN INTENTIONAL RELINQUISHMENT
OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE.  THE DETERMINATION OF
WHETHER THERE HAS BEEN AN INTELLIGENT WAIVER OF THE RIGHT TO COUNSEL
MUST DEPEND, IN EACH CASE, UPON THE PARTICULAR FACTS AND CIRCUMSTANCES
SURROUNDING THAT CASE, INCLUDING THE BACKGROUND, EXPERIENCE, AND
CONDUCT OF THE ACCUSED."  JOHNSON V. ZERBST, 304 U.S. 458, 464.  THIS
COURT LATER HELD THAT "(WAIVERS OF CONSTITUTIONAL RIGHTS NOT ONLY MUST
BE VOLUNTARY BUT MUST BE KNOWING, INTELLIGENT ACTS DONE WITH SUFFICIENT
AWARENESS OF THE RELEVANT CIRCUMSTANCES AND LIKELY CONSEQUENCES." 
BRADY V. UNITED STATES, 397 U.S. 742, 748; SEE ALSO ADAMS V. UNITED
STATES EX REL. MCCANN, 317 U.S. 269, 275; PATTON V. UNITED STATES, 281
U.S. 276, 312. 

NO SUCH SHOWING HAS BEEN MADE IN THE PRESENT CASE.  I WOULD REVERSE
THE JUDGMENT BELOW. 

ROBERT J. HIRSH ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

WILLIAM P. DIXON, ASSISTANT ATTORNEY GENERAL OF ARIZONA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS GARY K. NELSON,
ATTORNEY GENERAL. 
..END :
















UNITED STATES V. DIONISIO, 410 U.S. 1 


       UNITED STATES V. DIONISIO

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 71-229.  ARGUED NOVEMBER 6, 1972-- DECIDED JANUARY 22,

           1973 


A GRAND JURY SUBPOENAED ABOUT 20 PERSONS, INCLUDING RESPONDENT, TO
GIVE VOICE EXEMPLARS FOR IDENTIFICATION PURPOSES.  RESPONDENT, ON
FOURTH AND FIFTH AMENDMENT GROUNDS, REFUSED TO COMPLY.  THE DISTRICT
COURT REJECTED BOTH CLAIMS AND ADJUDGED RESPONDENT IN CONTEMPT.  THE
COURT OF APPEALS AGREED IN REJECTING RESPONDENT'S FIFTH AMENDMENT CLAIM
BUT REVERSED ON THE GROUND THAT THE FOURTH AMENDMENT REQUIRED A
PRELIMINARY SHOWING OF REASONABLENESS BEFORE A GRAND JURY WITNESS COULD
BE COMPELLED TO FURNISH A VOICE EXEMPLAR AND THAT HERE THE PROPOSED
"SEIZURES" WOULD BE UNREASONABLE BECAUSE OF THE LARGE NUMBER OF
WITNESSES SUBPOENAED TO PRODUCE THE EXEMPLARS.  HELD: 

1.  THE COMPELLED PRODUCTION OF THE VOICE EXEMPLARS WOULD NOT
VIOLATE THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION, SINCE THEY WERE TO BE USED ONLY FOR IDENTIFICATION
PURPOSES, AND NOT FOR THE TESTIMONIAL OR COMMUNICATIVE CONTENT OF THE
UTTERANCES.  PP. 5-7. 

2.  RESPONDENT'S FOURTH AMENDMENT CLAIM IS ALSO INVALID.  PP. 8-18. 

(A) A SUBPOENA TO COMPEL A PERSON TO APPEAR BEFORE A GRAND JURY DOES
NOT CONSTITUTE A "SEIZURE" WITHIN THE MEANING OF THE FOURTH AMENDMENT,
AND THE FACT THAT MANY OTHERS BESIDES RESPONDENT WERE ORDERED TO GIVE
VOICE RECORDINGS DID NOT RENDER THE SUBPOENA UNCONSTITUTIONAL.  DAVIS
V. MISSISSIPPI, 394 U.S. 721, DISTINGUISHED.  PP. 8-13. 

(B) THE GRAND JURY'S DIRECTIVE TO MAKE THE VOICE RECORDING INFRINGED
NO VALID FOURTH AMENDMENT INTEREST.  PP. 13-15. 

(C) SINCE NEITHER THE SUMMONS TO APPEAR BEFORE THE GRAND JURY NOR
ITS DIRECTIVE TO GIVE A EXEMPLAR CONTRAVENED THE FOURTH AMENDMENT, THE
COURT OF APPEALS ERRED IN REQUIRING A PRELIMINARY SHOWING OF
REASONABLENESS BEFORE RESPONDENT COULD BE COMPELLED TO FURNISH THE
EXEMPLAR.  PP. 15-16. 

442 F.2D 276, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
BRENNAN, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN
PART, POST, P. 22.  DOUGLAS, J., POST, P. 23, AND MARSHALL, J., POST,
P. 31, FILED DISSENTING OPINIONS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

A SPECIAL GRAND JURY WAS CONVENED IN THE NORTHERN DISTRICT OF
ILLINOIS IN FEBRUARY 1971, TO INVESTIGATE POSSIBLE VIOLATIONS OF
FEDERAL CRIMINAL STATUTES RELATING TO GAMBLING.  IN THE COURSE OF ITS
INVESTIGATION, THE GRAND JURY RECEIVED IN EVIDENCE CERTAIN VOICE
RECORDINGS THAT HAD BEEN OBTAINED PURSUANT TO COURT ORDERS.  /1/ 

THE GRAND JURY SUBPOENAED APPROXIMATELY 20 PERSONS, INCLUDING THE
RESPONDENT DIONISIO, SEEKING TO OBTAIN FROM THEM VOICE EXEMPLARS FOR
COMPARISON WITH THE RECORDED CONVERSATIONS THAT HAD BEEN RECEIVED IN
EVIDENCE.  EACH WITNESS WAS ADVISED THAT HE WAS A POTENTIAL DEFENDANT
IN A CRIMINAL PROSECUTION.  EACH WAS ASKED TO EXAMINE A TRANSCRIPT OF
AN INTERCEPTED CONVERSATION, AND TO GO TO A NEARBY OFFICE OF THE UNITED
STATES ATTORNEY TO READ THE TRANSCRIPT INTO A RECORDING DEVICE.  THE
WITNESSES WERE ADVISED THAT THEY WOULD BE ALLOWED TO HAVE THEIR
ATTORNEYS PRESENT WHEN THEY READ THE TRANSCRIPTS.  DIONISIO AND OTHER
REFUSED TO FURNISH THE VOICE EXEMPLARS, ASSERTING THAT THESE
DISCLOSURES WOULD VIOLATE THEIR RIGHTS UNDER THE FOURTH AND FIFTH
AMENDMENTS. 

THE GOVERNMENT THEN FILED SEPARATE PETITIONS IN THE UNITED STATES
DISTRICT COURT TO COMPEL DIONISIO AND THE OTHER WITNESSES TO FURNISH
THE VOICE EXEMPLARS TO THE GRAND JURY.  THE PETITIONS STATED THAT THE
EXEMPLARS WERE "ESSENTIAL AND NECESSARY" TO THE GRAND JURY
INVESTIGATION, AND THAT THEY WOULD "BE USED SOLELY AS A STANDARD OF
COMPARISON IN ORDER TO DETERMINE WHETHER OR NOT THE WITNESS IS THE
PERSON WHOSE VOICE WAS INTERCEPTED . . . " 

FOLLOWING A HEARING, THE DISTRICT JUDGE REJECTED THE WITNESSES'
CONSTITUTIONAL ARGUMENTS AND ORDERED THEM TO COMPLY WITH THE GRAND
JURY'S REQUEST.  HE REASONED THAT VOICE EXEMPLARS, LIKE HANDWRITING
EXEMPLARS OR FINGERPRINTS, WERE NOT TESTIMONIAL OR COMMUNICATIVE
EVIDENCE, AND THAT CONSEQUENTLY THE ORDER TO PRODUCE THEM WOULD NOT
COMPLY ANY WITNESS TO TESTIFY AGAINST HIMSELF.  THE DISTRICT JUDGE ALSO
FOUND THAT THERE WOULD BE NO FOURTH AMENDMENT VIOLATION, BECAUSE THE
GRAND JURY SUBPOENA DID NOT ITSELF VIOLATE THE FOURTH AMENDMENT, AND
THE ORDER TO PRODUCE THE VOICE EXEMPLARS WOULD INVOLVE NO UNREASONABLE
SEARCH AND SEIZURE WITHIN THE PROSCRIPTION OF THAT AMENDMENT: 

     "THE WITNESSES ARE LAWFULLY BEFORE THE GRAND JURY PURSUANT TO

  SUBPOENA.  THE FOURTH AMENDMENT PROHIBITION AGAINST UNREASONABLE

  SEARCH AND SEIZURE APPLIES ONLY WHERE IDENTIFYING PHYSICAL

  CHARACTERISTICS, SUCH AS FINGERPRINTS, ARE OBTAINED AS A RESULT

  OF UNLAWFUL DETENTION OF A SUSPECT, OR WHEN AN INTRUSION INTO THE

  BODY, SUCH AS A BLOOD TEST, IS UNDERTAKEN WITHOUT A WARRANT,

ABSENT AN EMERGENCY SITUATION.  E.G., DAVIS V. MISSISSIPPI, 394

  U.S. 721, 724-728 (1969); SCHMERBER V. CALIFORNIA, 384 U.S. 757,

  770-771 (1966)."  /2/

WHEN DIONISIO PERSISTED IN HIS REFUSAL TO RESPOND TO THE GRAND JURY'S
DIRECTIVE, THE DISTRICT COURT ADJUDGED HIM IN CIVIL CONTEMPT AND
ORDERED HIM COMMITTED TO CUSTODY UNTIL HE OBEYED THE COURT ORDER, OR
UNTIL THE EXPIRATION OF 18 MONTHS.  /3/ 

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED.  442 F.2D
276.  IT AGREED WITH THE DISTRICT COURT IN REJECTING THE FIFTH
AMENDMENT CLAIMS, /4/  BUT CONCLUDED THAT TO COMPEL THE VOICE
RECORDINGS WOULD VIOLATE THE FOURTH AMENDMENT.  IN THE COURT'S VIEW,
AND THE GRAND JURY WAS "SEEKING TO OBTAIN THE VOICE EXEMPLARS OF THE
WITNESSES BY THE USE OF ITS SUBPOENA POWERS BECAUSE PROBABLE CAUSE DID
NOT EXIST FOR THEIR ARREST OR FOR SOME OTHER, LESS UNUSUAL, METHOD OF
COMPELLING THE PRODUCTION OF THE EXEMPLARS."  ID., AT 280.  THE COURT
FOUND THAT THE FOURTH AMENDMENT APPLIED TO GRAND JURY PROCESS, AND THAT
"UNDER THE FOURTH AMENDMENT LAW ENFORCEMENT OFFICIALS MAY NOT COMPEL
THE PRODUCTION OF PHYSICAL EVIDENCE ABSENCE A SHOWING OF THE
REASONABLENESS OF THE SEIZURE.  DAVIS V. MISSISSIPPI, 394 U.S. 721 . .
. "  IBID. 

IN DAVIS THIS COURT HELD THAT IT WAS ERROR TO ADMIT THE PETITIONER'S
FINGERPRINTS INTO EVIDENCE AT HIS TRIAL FOR RAPE, BECAUSE THEY HAD BEEN
OBTAINED DURING A POLICE DETENTION FOLLOWING A LAWLESS WHOLESALE
ROUNDUP OF THE PETITIONER AND MORE THAN 20 OTHER YOUTHS.  EQUATING THE
PROCEDURES FOLLOWED BY THE GRAND JURY IN THE PRESENT CASE TO THE
FINGERPRINT DETENTIONS IN DAVIS, THE COURT OF APPEALS REASONED THAT
"(THE DRAGNET EFFECT HERE, WHERE APPROXIMATELY TWENTY PERSONS WERE
SUBPOENAED FOR PURPOSES OF IDENTIFICATION, HAS THE SAME INVIDIOUS
EFFECT ON FOURTH AMENDMENT RIGHTS AS THE PRACTICE CONDEMNED IN DAVIS." 
ID., AT 281. 

IN VIEW OF A CLEAR CONFLICT BETWEEN THIS DECISION AND ONE IN THE
COURT OF APPEALS FOR THE SECOND CIRCUIT, /5/  WE GRANTED THE
GOVERNMENT'S PETITION FOR CERTIORARI.  406 U.S. 956. 

        I 

THE COURT OF APPEALS CORRECTLY REJECTED THE CONTENTION THAT THE
COMPELLED PRODUCTION OF THE VOICE EXEMPLARS WOULD VIOLATE THE FIFTH
AMENDMENT.  IT HAS LONG BEEN HELD THAT THE COMPELLED DISPLAY OF
IDENTIFIABLE PHYSICAL CHARACTERISTICS INFRINGES NO INTEREST PROTECTED
BY THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION.  IN HOLT V.
UNITED STATES, 218 U.S. 245, 252, MR. JUSTICE HOLMES, WRITING FOR THE
COURT, DISMISSED AS AN "EXTRAVAGANT EXTENSION OF THE FIFTH AMENDMENT"
THE ARGUMENT THAT IT VIOLATED THE PRIVILEGE TO REQUIRE A DEFENDANT TO
PUT ON A BLOUSE FOR IDENTIFICATION PURPOSES.  HE EXPLAINED THAT "THE
PROHIBITION OF COMPELLING A MAN IN A CRIMINAL COURT TO BE WITNESS
AGAINST HIMSELF IS A PROHIBITION OF THE USE OF PHYSICAL OR MORAL
COMPULSION TO EXTORT COMMUNICATIONS FROM HIM, NOT AN EXCLUSION OF HIS
BODY AS EVIDENCE WHEN IT MAY BE MATERIAL."  ID., AT 252-253. 

MORE RECENTLY, IN SCHMERBER V. CALIFORNIA, 384 U.S. 757, WE RELIED
ON HOLT, AND NOTED THAT: 

"(BOTH FEDERAL AND STATE COURTS HAVE USUALLY HELD THAT (THE
PRIVILEGE) OFFERS NO PROTECTION AGAINST COMPULSION TO SUBMIT TO
FINGERPRINTING, PHOTOGRAPHING, OR MEASUREMENTS, TO WRITE OR SPEAK FOR
IDENTIFICATION, TO APPEAR IN COURT, TO STAND, TO ASSUME A STANCE, TO
WALK, OR TO MAKE A PARTICULAR GESTURE.  THE DISTINCTION WHICH HAS
EMERGED, OFTEN EXPRESSED IN DIFFERENT WAYS, IS THAT THE PRIVILEGE IS A
BAR AGAINST COMPELLING 'COMMUNICATIONS' OR 'TESTIMONY,' BUT THAT
COMPULSION WHICH MAKES A SUSPECT OR ACCUSED THE SOURCE OF 'REAL OR
PHYSICAL EVIDENCE'  DOES NOT VIOLATE IT."  ID., AT 764 (FOOTNOTE
OMITTED).  THE COURT HELD THAT THE EXTRACTION AND CHEMICAL ANALYSIS OF
A BLOOD SAMPLE INVOLVED NO "SHADOW OF TESTIMONIAL COMPULSION UPON OR
ENFORCED COMMUNICATION BY THE ACCUSED."  ID., AT 765. 

THESE CASES LED US TO CONCLUDE IN GILBERT V. CALIFORNIA, 388 U.S.
283, THAT HANDWRITING EXEMPLARS WERE NOT PROTECTED BY THE PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION.  WHILE "(ONE'S VOICE AND
HANDWRITING ARE, OF COURSE, MEANS OF COMMUNICATION," WE HELD THAT A
"MERE HANDWRITING EXEMPLAR, IN CONTRAST TO THE CONTENT OF WHAT IS
WRITTEN, LIKE THE VOICE OR BODY ITSELF, IS AN IDENTIFYING PHYSICAL
CHARACTERISTIC OUTSIDE ITS PROTECTION."  ID., AT 266-267.  AND
SIMILARLY IN UNITED STATES V. WADE, 388 U.S. 218, WE FOUND NO ERROR IN
COMPELLING A DEFENDANT ACCUSED OF BANK ROBBERY TO UTTER IN A LINEUP
WORDS THAT HAD ALLEGEDLY BEEN SPOKEN BY THE ROBBER.  THE ACCUSED THERE
WAS "REQUIRED TO USE HIS VOICE AS AN IDENTIFYING PHYSICAL
CHARACTERISTIC, NOT TO SPEAK HIS GUILT."  ID., AT 222-223. 

WADE AND GILBERT DEFINITELY REFUTE ANY CONTENTION THAT THE COMPELLED
PRODUCTION OF THE VOICE EXEMPLARS IN THIS CASE WOULD VIOLATE THE FIFTH
AMENDMENT.  THE VOICE RECORDINGS WERE TO BE USED SOLELY TO MEASURE THE
PHYSICAL PROPERTIES OF THE WITNESSES' VOICES, NOT FOR THE TESTIMONIAL
OR COMMUNICATIVE CONTENT OF WHAT WAS TO BE SAID.  /6/

        II 

THE COURT OF APPEALS HELD THAT THE FOURTH AMENDMENT REQUIRED A
PRELIMINARY SHOWING OF REASONABLENESS BEFORE A GRAND JURY WITNESS COULD
BE COMPELLED TO FURNISH A VOICE EXEMPLAR, AND THAT IN THIS CASE THE
PROPOSED "SEIZURES" OF THE VOICE EXEMPLARS WOULD BE UNREASONABLE
BECAUSE OF THE LARGE NUMBER OF WITNESSES SUMMONED BY THE GRAND JURY AND
DIRECTED TO PRODUCE SUCH EXEMPLARS.  WE DISAGREE. 

THE FOURTH AMENDMENT GUARANTEES THAT ALL PEOPLE SHALL BE "SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE
SEARCHES AND SEIZURES . . . "  ANY FOURTH AMENDMENT VIOLATION IN THE
PRESENT SETTING MUST REST ON A LAWLESS GOVERNMENTAL INTRUSION UPON THE
PRIVACY OF "PERSONS" RATHER THAN ON INTERFERENCE WITH "PROPERTY
RELATIONSHIPS OR PRIVATE PAPERS."  SCHMERBER V. CALIFORNIA, 384 U.S.,
AT PAGE 767; SEE UNITED STATES V. DOE (SCHWARTZ), 457 F.2D 895, 897. 
IN TERRY V. OHIO, 392 U.S. 1, THE COURT EXPLAINED THE PROTECTION
AFFORDED TO "PERSONS" IN TERMS OF THE STATEMENT IN KATZ V. UNITED
STATES, 389 U.S. 347, THAT "THE FOURTH AMENDMENT PROTECTS PEOPLE, NOT
PLACES," ID., AT 351, AND CONCLUDED THAT "WHEREVER AN INDIVIDUAL MAY
HARBOR A REASONABLE 'EXPECTATION OF PRIVACY,' . . . HE IS ENTITLED TO
BE FREE FROM UNREASONABLE GOVERNMENTAL INTRUSION."  TERRY V. OHIO,
SUPRA, AT 9. 

AS THE COURT MADE CLEAR IN SCHMERBER, SUPRA, THE OBTAINING OF
PHYSICAL EVIDENCE FROM A PERSON INVOLVES A POTENTIAL FOURTH AMENDMENT
VIOLATION AT TWO DIFFERENT LEVELS-- THE "SEIZURE" OF THE "PERSON"
NECESSARY TO BRING HIM INTO CONTACT WITH GOVERNMENT AGENTS, SEE DAVIS
V. MISSISSIPPI, 394 U.S. 721, AND THE SUBSEQUENT SEARCH FOR AND SEIZURE
OF THE EVIDENCE.  IN SCHMERBER, WE FOUND THE INITIAL SEIZURE OF THE
ACCUSED JUSTIFIED AS A LAWFUL ARREST, AND THE SUBSEQUENT SEIZURE OF THE
BLOOD SAMPLE FROM HIS BODY REASONABLE IN LIGHT OF THE EXIGENT
CIRCUMSTANCES.  AND IN TERRY, WE CONCLUDED THAT NEITHER THE INITIAL
SEIZURE OF THE PERSON, AN INVESTIGATORY "STOP" BY A POLICEMAN, NOR THE
SUBSEQUENT SEARCH, A "PATDOWN" OF HIS OUTER CLOTHING FOR WEAPONS,
CONSTITUTED A VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS.  THE
CONSTITUTIONALITY OF THE COMPULSORY PRODUCTION OF EXEMPLARS FROM A
GRAND JURY WITNESS NECESSARILY TURNS ON THE SAME DUAL INQUIRY-- WHETHER
EITHER THE INITIAL COMPULSION OF THE PERSON TO APPEAR BEFORE THE GRAND
JURY, OR THE SUBSEQUENT DIRECTIVE TO MAKE A VOICE RECORDING IS AN
UNREASONABLE "SEIZURE" WITHIN THE MEANING OF THE FOURTH AMENDMENT. 

IT IS CLEAR THAT A SUBPOENA TO APPEAR BEFORE A GRAND JURY IS NOT A
"SEIZURE" IN THE FOURTH AMENDMENT SENSE, EVEN THOUGH THAT SUMMONS MAY
BE INCONVENIENT OR BURDENSOME.  LAST TERM WE AGAIN ACKNOWLEDGED WHAT
HAS LONG BEEN RECOGNIZED, /7/  THAT "(CITIZENS GENERALLY ARE NOT
CONSTITUTIONALLY IMMUNE FROM GRAND JURY SUBPOENAS . . . "  BRANZBURG V.
HAYES, 408 U.S. 665, 682.  WE CONCLUDED THAT:

"ALTHOUGH THE POWERS OF THE GRAND JURY ARE NOT UNLIMITED AND ARE
SUBJECT TO THE SUPERVISION OF A JUDGE, THE LONGSTANDING PRINCIPLE THAT
'THE PUBLIC . . . HAS A RIGHT TO EVERY MAN'S EVIDENCE,'  EXCEPT FOR
THOSE PERSONS PROTECTED BY A CONSTITUTIONAL, COMMON-LAW, OR STATUTORY
PRIVILEGE, UNITED STATES V. BRYAN, 339 U.S., AT 331; BLACKMER V. UNITED
STATES, 284 U.S. 421, 438 (1932); 8 J.WIGMORE, EVIDENCE 2192
(MCNAUGHTON REV. 1961), IS PARTICULARLY APPLICABLE TO GRAND JURY
PROCEEDINGS."  ID., AT 688. 

THESE ARE RECENT REAFFIRMATIONS OF THE HISTORICALLY GROUNDED
OBLIGATION OF EVERY PERSON TO APPEAR AND GIVE HIS EVIDENCE BEFORE THE
GRAND JURY.  "THE PERSONAL SACRIFICE INVOLVED IS A PART OF THE
NECESSARY CONTRIBUTION OF THE INDIVIDUAL TO THE WELFARE OF THE
PUBLIC."  BLAIR V. UNITED STATES, 250 U.S. 273, 281.  SEE ALSO GARLAND
V. TORRE, 259 F.2D 545, 549.  AND WHILE THE DUTY MAY BE "ONEROUS" AT
TIMES, IT IS "NECESSARY TO THE ADMINISTRATION OF JUSTICE."  BLAIR V.
UNITED STATES, SUPRA, AT 281.  /8/ 

THE COMPULSION EXERTED BY A GRAND JURY SUBPOENA DIFFERS FROM THE
SEIZURE EFFECTED BY AN ARREST OR EVEN AN INVESTIGATION "STOP" IN MORE
THAN CIVIC OBLIGATION.  FOR, AS JUDGE FRIENDLY WROTE FOR THE COURT OF
APPEALS FOR THE SECOND CIRCUIT: 

"THE LATTER IS ABRUPT, IS EFFECTED WITH FORCE OR THE THREAT OF IT
AND OFTEN IN CIRCUMSTANCES, AND, IN THE CASE OF ARREST, RESULTS IN A
RECORD INVOLVING SOCIAL STIGMA.  A SUBPOENA IS SERVED IN THE SAME
MANNER AS OTHER LEGAL PROCESS; IT INVOLVES NO STIGMA WHATEVER; IF THE
TIME FOR APPEARANCE IS INCONVENIENT, THIS CAN GENERALLY BE ALTERED; AND
IT REMAINS AT ALL TIMES UNDER THE CONTROL AND SUPERVISION OF A COURT." 
UNITED STATES V. DOE (SCHWARTZ) 457 F.2D, AT 898.  THUS, THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT CORRECTLY RECOGNIZED IN A CASE
SUBSEQUENT TO THE ONE NOW BEFORE US, THAT A "GRAND JURY SUBPOENA TO
TESTIFY IS NOT THAT KIND OF GOVERNMENTAL INTRUSION ON PRIVACY AGAINST
WHICH THE FOURTH AMENDMENT AFFORDS PROTECTION, ONCE THE FIFTH AMENDMENT
IS SATISFIED."  FRASER V. UNITED STATES, 452 F.2D 616, 620; CF. UNITED
STATES V. WEINBERG, 439 F.2D 743, 748-749. 

THIS CASE IS THUS QUITE DIFFERENT FROM DAVIS V. MISSISSIPPI, SUPRA,
ON WHICH THE COURT OF APPEALS PRIMARILY RELIED.  FOR IN DAVIS IT WAS
THE INITIAL SEIZURE-- THE LAWLESS DRAGNET DETENTION-- THAT VIOLATED THE
FOURTH AND FOURTEENTH AMENDMENTS, NOT THE TAKING OF THE FINGERPRINTS. 
WE NOTED THAT "(INVESTIGATORY SEIZURES WOULD SUBJECT UNLIMITED NUMBERS
OF INNOCENT PERSONS TO THE HARASSMENT AND IGNOMINY INCIDENT TO
INVOLUNTARY DETENTION," 394 U.S., AT 726, AND WE LEFT OPEN THE QUESTION
WHETHER, CONSISTENTLY WITH THE FOURTH AND FOURTEENTH AMENDMENTS,
NARROWLY CIRCUMSCRIBED PROCEDURES MIGHT BE DEVELOPED FOR OBTAINING
FINGERPRINTS FROM PEOPLE WHEN THERE WAS NO PROBABLE CAUSE TO ARREST
THEM.  ID., AT 728.  /9/  DAVIS IS PLAINLY INAPPOSITE TO A CASE WHERE
THE INITIAL RESTRAINT DOES NOT ITSELF INFRINGE THE FOURTH AMENDMENT. 
THIS IS NOT TO SAY THAT A GRAND JURY SUBPOENA IS SOME TALISMAN THAT
DISSOLVES ALL CONSTITUTIONAL PROTECTIONS.  THE GRAND JURY CANNOT
REQUIRE A WITNESS TO TESTIFY AGAINST HIMSELF.  IT CANNOT REQUIRE THE
PRODUCTION BY A PERSON OF PRIVATE BOOKS AND RECORDS THAT WOULD
INCRIMINATE HIM.  SEE BOYD V. UNITED STATES, 116 U.S. 616, 633-635. 
/10/  THE FOURTH AMENDMENT PROVIDES PROTECTION AGAINST A GRAND JURY
SUBPOENA DUCES TECUM TOO SWEEPING IN ITS TERMS "TO BE REGARDED AS
REASONABLE."  HALE V. HENKEL, 201 U.S. 43, 76; CF. OKLAHOMA PRESS
PUBLISHING CO. V. WALLING, 327 U.S. 186, 208, 217.  AND LAST TERM, IN
THE CONTEXT OF A FIRST AMENDMENT CLAIM, WE INDICATED THAT THE
CONSTITUTION COULD NOT TOLERATE THE TRANSFORMATION OF THE GRAND JURY
INTO AN INSTRUMENT OF OPPRESSION:  "OFFICIAL HARASSMENT OF THE PRESS
UNDERTAKEN NOT FOR PURPOSES OF LAW ENFORCEMENT BUT TO DISRUPT A
REPORTER'S RELATIONSHIP WITH HIS NEWS SOURCES WOULD HAVE NO
JUSTIFICATION.  GRAND JURIES ARE SUBJECT TO JUDICIAL CONTROL AND
SUBPOENAS TO MOTIONS TO QUASH.  WE DO NOT EXPECT COURTS WILL FORGET
THAT GRAND JURIES MUST OPERATE WITHIN THE LIMITS OF THE FIRST AMENDMENT
AS WELL AS THE FIFTH."  BRANZBURG V. HAYES, 408 U.S., AT 707-708.  SEE
ALSO, ID., AT 710 (POWELL, J., CONCURRING). 

BUT WE ARE HERE FACED WITH NO SUCH CONSTITUTIONAL INFIRMITIES IN THE
SUBPOENA TO APPEAR BEFORE THE GRAND JURY OR IN THE ORDER TO MAKE THE
VOICE RECORDINGS.  THERE IS, AS WE HAVE SAID, NO VALID FIFTH AMENDMENT
CLAIM.  THERE WAS NO ORDER TO PRODUCE PRIVATE BOOKS AND PAPERS, AND NO
SWEEPING SUBPOENA DUCES TECUM.  AND EVEN IF BRANZBURG BE EXTENDED
BEYOND ITS FIRST AMENDMENT MOORINGS AND TIED TO A MORE GENERALIZED DUE
PROCESS CONCEPT, THERE IS STILL NO INDICATION IN THIS CASE OF THE KIND
OF HARASSMENT THAT WAS OF CONCERN THERE. 

THE COURT OF APPEALS FOUND CRITICAL SIGNIFICANCE IN THE FACT THAT
THE GRAND JURY HAD SUMMONED APPROXIMATELY 20 WITNESSES TO FURNISH VOICE
EXEMPLARS.  /11/  WE THINK THAT FACT IS BASICALLY IRRELEVANT TO THE
CONSTITUTIONAL ISSUES HERE.  THE GRAND JURY MAY HAVE BEEN ATTEMPTING TO
IDENTIFY A NUMBER OF VOICES ON THE TAPES IN EVIDENCE, OR IT MIGHT HAVE
SUMMONED THE 20 WITNESSES IN AN EFFORT TO IDENTIFY ONE VOICE.  BUT
WHATEVER THE CASE, "(A) GRAND JURY'S INVESTIGATION IS NOT FULLY CARRIED
OUT UNTIL EVERY AVAILABLE CLUE HAS BEEN RUN DOWN AND ALL WITNESSES
EXAMINED IN EVERY PROPER WAY TO FIND IF A CRIME HAS BEEN COMMITTED.  .
. . "  UNITED STATES V. STONE, 429 F.2D 138, 140.  SEE ALSO WOOD V.
GEORGIA, 370 U.S. 375, 392.  AS THE COURT RECALLED LAST TERM, "BECAUSE
ITS TASK IS TO INQUIRE INTO THE EXISTENCE OF POSSIBLE CRIMINAL CONDUCT
AND TO RETURN ONLY WELL-FOUNDED INDICTMENTS, ITS INVESTIGATIVE POWERS
ARE NECESSARILY BROAD."  BRANZBURG V. HAYES, SUPRA, AT 688.  /12/  THE
GRAND JURY MAY WELL FIND IT DESIRABLE TO CALL NUMEROUS WITNESSES IN THE
COURSE OF AN INVESTIGATION.  IT DOES NOT FOLLOW THAT EACH WITNESS MAY
RESIST A SUBPOENA ON THE GROUND THAT TOO MANY WITNESSES HAVE BEEN
CALLED.  NEITHER THE ORDER TO DIONISIO TO APPEAR NOR THE ORDER TO MAKE
A VOICE RECORDING WAS RENDERED UNREASONABLE BY THE FACT THAT MANY
OTHERS WERE SUBJECTED TO THE SAME COMPULSION. 

BUT THE CONCLUSION THAT DIONISIO'S COMPULSORY APPEARANCE BEFORE THE
GRAND JURY WAS NOT AN UNREASONABLE "SEIZURE" IS THE ANSWER TO ONLY THE
FIRST PART OF THE FOURTH AMENDMENT INQUIRY HERE.  DIONISIO ARGUES THAT
THE GRAND JURY'S SUBSEQUENT DIRECTIVE TO MAKE THE VOICE RECORDING WAS
ITSELF AN INFRINGEMENT OF HIS RIGHTS UNDER THE FOURTH AMENDMENT.  WE
CANNOT ACCEPT THAT ARGUMENT. 

IN KATZ V. UNITED STATES, SUPRA, WE SAID THAT THE FOURTH AMENDMENT
PROVIDES NO PROTECTION FOR WHAT "A PERSON KNOWINGLY EXPOSES TO THE
PUBLIC, EVEN IN HIS OWN HOME OR OFFICE . . . "  389 U.S., AT 351.  THE
PHYSICAL CHARACTERISTICS OF A PERSON'S VOICE, ITS TONE AND MANNER, AS
OPPOSED TO THE CONTENT OF A SPECIFIC CONVERSATION, ARE CONSTANTLY
EXPOSED TO THE PUBLIC.  LIKE A MAN'S FACIAL CHARACTERISTICS, OR
HANDWRITING, HIS VOICE IS REPEATEDLY PRODUCED FOR OTHERS TO HEAR.  NO
PERSON CAN HAVE A REASONABLE EXPECTATION THAT OTHERS WILL NOT KNOW THE
SOUND OF HIS VOICE, ANY MORE THAN HE CAN REASONABLY EXPECT THAT HIS
FACE WILL BE A MYSTERY TO THE WORLD.  AS THE COURT OF APPEALS FOR THE
SECOND CIRCUIT STATED: 

"EXCEPT FOR THE RARE RECLUSE WHO CHOOSES TO LIVE HIS LIFE IN
COMPLETE SOLITUDE, IN OUR DAILY LIVES WE CONSTANTLY SPEAK AND WRITE,
AND WHILE THE CONTENT OF A COMMUNICATION IS ENTITLED TO FOURTH
AMENDMENT PROTECTION . . . THE UNDERLYING IDENTIFYING CHARACTERISTICS--
THE CONSTANT FACTOR THROUGHOUT BOTH PUBLIC AND PRIVATE COMMUNICATIONS--
ARE OPEN FOR ALL TO SEE OR HEAR.  THERE IS NO BASIS FOR CONSTRUCTING A
WALL OF PRIVACY AGAINST THE GRAND JURY WHICH DOES NOT EXIST IN CASUAL
CONTACTS WITH STRANGERS.  HENCE NO INTRUSION INTO AN INDIVIDUAL'S
PRIVACY RESULTS FROM COMPELLED EXECUTION OF HANDWRITING OR VOICE
EXEMPLARS; NOTHING IS BEING EXPOSED TO THE GRAND JURY THAT HAS NOT
PREVIOUSLY BEEN EXPOSED TO THE PUBLIC AT LARGE."  UNITED STATES V. DOE
(SCHWARTZ), 457 F.2D, AT 898-899. 

THE REQUIRED DISCLOSURE OF A PERSON'S VOICE IS THUS IMMEASURABLY
FURTHER REMOVED FROM THE FOURTH AMENDMENT PROTECTION THAN WAS THE
INTRUSION INTO THE BODY EFFECTED BY THE BLOOD EXTRACTION IN SCHMERBER. 
"THE INTERESTS IN HUMAN DIGNITY AND PRIVACY WHICH THE FOURTH AMENDMENT
PROTECTS FORBID ANY SUCH INTRUSIONS ON THE MERE CHANCE THAT DESIRED
EVIDENCE MIGHT BE OBTAINED."  SCHMERBER V. CALIFORNIA, 384 U.S., AT 769
770.  SIMILARLY, A SEIZURE OF VOICE EXEMPLARS DOES NOT INVOLVE THE
"SEVERE, THOUGH BRIEF, INTRUSION UPON CHERISHED PERSONAL SECURITY,"
EFFECTED BY THE "PATDOWN" IN TERRY-- "SURELY . . . AN ANNOYING,
FRIGHTENING, AND PERHAPS HUMILIATING EXPERIENCE."  TERRY V. OHIO, 392
U.S., AT 24-25.  RATHER, THIS IS LIKE THE FINGERPRINTS IN DAVIS, WHERE,
THOUGH THE INITIAL DRAGNET DETENTIONS WERE CONSTITUTIONALLY
IMPERMISSIBLE, WE NOTED THAT THE FINGERPRINTING ITSELF "INVOLVES NONE
OF THE PROBING INTO AN INDIVIDUAL'S PRIVATE LIFE AND THOUGHTS THAT
MARKS AN INTERROGATION OR SEARCH."  DAVIS V. MISSISSIPPI, 394 U.S., AT
727; CF. THOM V. NEW YORK STOCK EXCHANGE, 306 F.SUPP.  1002, 1009. 

SINCE NEITHER THE SUMMONS TO APPEAR BEFORE THE GRAND JURY NOR ITS
DIRECTIVE TO MAKE A VOICE RECORDING INFRINGED UPON ANY INTEREST
PROTECTED BY THE FOURTH AMENDMENT, THERE WAS NO JUSTIFICATION FOR
REQUIRING THE GRAND JURY TO SATISFY EVEN THE MINIMAL REQUIREMENT OF
"REASONABLENESS" IMPOSED BY THE COURT OF APPEALS.  /13/  SEE UNITED
STATES V. DOE (SCHWARTZ), SUPRA, AT 899-900.  A GRAND JURY HAS BROAD
INVESTIGATIVE POWERS TO DETERMINE WHETHER A CRIME HAS BEEN COMMITTED
AND WHO HAS COMMITTED IT.  THE JURORS MAY ACT ON TIPS, RUMORS, EVIDENCE
OFFERED BY THE PROSECUTOR, OR THEIR OWN PERSONAL KNOWLEDGE.  BRANZBURG
V. HAYES, 408 U.S., AT 701.  NO GRAND JURY WITNESS IS "ENTITLED TO SET
LIMITS TO THE INVESTIGATION THAT THE GRAND JURY MAY CONDUCT."  BLAIR V.
UNITED STATES, 250 U.S., AT 282.  AND A SUFFICIENT BASIS FOR AN
INDICTMENT MAY ONLY EMERGE AT THE END OF THE INVESTIGATION WHEN ALL THE
EVIDENCE HAS BEEN RECEIVED. 

"IT IS IMPOSSIBLE TO CONCEIVE THAT . . . THE EXAMINATION OF
WITNESSES MUST BE STOPPED UNTIL A BASIS IS LAID BY AN INDICTMENT
FORMALLY PREFERRED, WHEN THE VERY OBJECT OF THE EXAMINATION IS TO
ASCERTAIN WHO SHALL BE INDICTED."  HALE V. HENKEL, 201 U.S., AT 65. 
SINCE DIONISIO RAISED NO VALID FOURTH AMENDMENT CLAIM, THERE IS NO MORE
REASON TO REQUIRE A PRELIMINARY SHOWING OF REASONABLENESS HERE THAN
THERE WOULD BE IN THE CASE OF ANY WITNESS WHO, DESPITE THE LACK OF ANY
CONSTITUTIONAL OR STATUTORY PRIVILEGE, DECLINED TO ANSWER A QUESTION OR
COMPLY WITH A GRAND JURY REQUEST.  NEITHER THE CONSTITUTION NOR OUR
PRIOR CASES JUSTIFY ANY SUCH INTERFERENCE WITH GRAND JURY PROCEEDINGS. 
/14/ 

THE FIFTH AMENDMENT GUARANTEES THAT NO CIVILIAN MAY BE BROUGHT TO
TRIAL FOR AN INFAMOUS CRIME "UNLESS ON A PRESENTMENT OR INDICTMENT OF A
GRAND JURY."  THIS CONSTITUTIONAL GUARANTEE PRESUPPOSES AN
INVESTIGATIVE BODY "ACTING INDEPENDENTLY OF EITHER PROSECUTING ATTORNEY
OR JUDGE," STIRONE V. UNITED STATES, 361 U.S. 212, 218, WHOSE MISSION
IS TO CLEAR THE INNOCENT, NO LESS THAN TO BRING TO TRIAL THOSE WHO MAY
BE GUILTY.  /15/  ANY HOLDING THAT WOULD SADDLE A GRAND JURY WITH
MINITRIALS AND PRELIMINARY SHOWINGS WOULD ASSUREDLY IMPEDE ITS
INVESTIGATION AND FRUSTRATE THE PUBLIC'S INTEREST IN THE FAIR AND
EXPEDITIOUS ADMINISTRATION OF THE CRIMINAL LAWS.  CF. UNITED STATES V.
RYAN, 402 U.S. 530, 532-533; COSTELLO V. UNITED STATES, 350 U.S. 359,
363-364; COBBLEDICK V. UNITED STATES, 309 U.S. 323, 327-328.  /16/  THE
GRAND JURY MAY NOT ALWAYS SERVE ITS HISTORIC ROLE AS A PROTECTIVE
BULWARK STANDING SOLIDLY BETWEEN THE ORDINARY CITIZEN AND AN
OVERZEALOUS PROSECUTOR, BUT IF IT IS EVEN TO APPROACH THE PROPER
PERFORMANCE OF ITS CONSTITUTIONAL MISSION, IT MUST BE FREE TO PURSUE
ITS INVESTIGATIONS UNHINDERED BY EXTERNAL INFLUENCE OR SUPERVISION SO
LONG AS IT DOES NOT TRENCH UPON THE LEGITIMATE RIGHTS OF ANY WITNESS
CALLED BEFORE IT. 

SINCE THE COURT OF APPEALS FOUND AN UNREASONABLE SEARCH AND SEIZURE
WHERE NONE EXISTED, AND IMPOSED A PRELIMINARY SHOWING OF REASONABLENESS
WHERE NONE WAS REQUIRED, ITS JUDGMENT IS REVERSED AND THIS CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

(FOR SEPARATE OPINION OF MR. JUSTICE BRENNAN, SEE POST, P. 22.) 

(FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 23.) 

(FOR DISSENTING OPINION OF MR. JUSTICE MARSHALL, SEE POST, P. 31.) 

/1/  THE COURT ORDERS WERE ISSUED PURSUANT TO 18 U.S.C. 2518, A
STATUTE AUTHORIZING THE INTERCEPTION OF WIRE COMMUNICATIONS UPON A
JUDICIAL DETERMINATION THAT "(A) THERE IS PROBABLE CAUSE FOR BELIEF
THAT AN INDIVIDUAL IS COMMITTING, HAS COMMITTED, OR IS ABOUT TO COMMIT
A PARTICULAR OFFENSE ENUMERATED IN SECTION 2516 OF THIS CHAPTER
(INCLUDING THE TRANSMISSION OF WAGERING INFORMATION); (B) THERE IS
PROBABLE CAUSE FOR BELIEF THAT PARTICULAR COMMUNICATIONS CONCERNING
THAT OFFENSE WILL BE OBTAINED THROUGH SUCH INTERCEPTION; (C) NORMAL
INVESTIGATION PROCEDURES HAVE BEEN TRIED AND HAVE FAILED OR REASONABLY
APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED OR TO BE TOO DANGEROUS; (D)
THERE IS PROBABLE CAUSE FOR BELIEF THAT THE FACILITIES FROM WHICH, OR
THE PLACE WHERE, THE WIRE OR ORAL COMMUNICATIONS ARE TO BE INTERCEPTED
ARE BEING USED, OR ARE ABOUT TO BE USED, IN CONNECTION WITH THE
COMMISSION OF SUCH OFFENSE, OR ARE LEASED TO, LISTED IN THE NAME OF, OR
COMMONLY USED BY SUCH PERSON." 

/2/  THE DECISION OF THE DISTRICT COURT IS UNREPORTED. 

/3/  THE LIFE OF THE SPECIAL GRAND JURY WAS 18 MONTHS, BUT COULD BE
EXTENDED UP TO AN ADDITIONAL 18 MONTHS.  18 U.S.C. 3331. 

/4/  THE COURT ALSO REJECTED THE ARGUMENT THAT THE GRAND JURY
PROCEDURE VIOLATED THE WITNESSES' SIXTH AMENDMENT RIGHT TO COUNSEL.  IT
FOUND THE CONTENTION PARTICULARLY WITHOUT MERIT IN VIEW OF THE OPTION
AFFORDED THE WITNESSES TO HAVE THEIR ATTORNEYS PRESENT WHILE THEY MADE
THE VOICE RECORDINGS.  442 F.2D 276, 278. 

/5/  UNITED STATES V. DOE (SCHWARTZ), 457 F.2D 895 (AFFIRMING CIVIL
CONTEMPT JUDGMENT AGAINST GRAND JURY WITNESS FOR REFUSAL TO FURNISH
HANDWRITING EXEMPLARS). 

/6/  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT APPEARS TO HAVE
RECANTED SOMEWHAT FROM ITS CLEAR AND CORRECT HOLDING IN THE PRESENT
CASE THAT THE COMPELLED PRODUCTION OF VOICE EXEMPLARS WOULD NOT VIOLATE
THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION.  IN SUBSEQUENTLY
EXPLAINING THAT HOLDING, THE COURT QUALIFIED IT: 

"NEVERTHELESS, THE WITNESSES WERE POTENTIAL DEFENDANTS, AND SINCE
THE PURPOSE OF THE VOICE EXEMPLARS WAS TO IDENTIFY THE VOICES OBTAINED
BY FBI AGENTS PURSUANT TO A COURT-ORDERED WIRETAP, THE SELF
INCRIMINATORY IMPACT OF THE COMPELLED EXEMPLARS WAS CLEAR.  THUS THE
COMPELLED EXEMPLARS WERE AT ODDS WITH THE SPIRIT OF THE FIFTH
AMENDMENT.  BECAUSE THE FIFTH AMENDMENT ILLUMINATES THE FOURTH (SEE . .
. BOYD V. UNITED STATES (116 U.S. 616) . . . ), THE FOURTH AMENDMENT
VIOLATION APPEARS MORE READILY THAN WHERE IMMUNITY IS GRANTED, AND IN
DIONISIO IMMUNITY HAD NOT YET BEEN GRANTED."  FRASER V. UNITED STATES,
452 F.2D 616, 619 N. 5. 

BUT BOYD DEALT WITH THE COMPULSORY PRODUCTION OF PRIVATE BOOKS AND
RECORDS, TESTIMONIAL SOURCES, A CIRCUMSTANCE IN WHICH THE "FOURTH AND
FIFTH AMENDMENTS RUN ALMOST INTO EACH OTHER."  116 U.S., AT 630.  IN
THE PRESENT CASE, BY CONTRAST, NO FIFTH AMENDMENT INTERESTS ARE
JEOPARDIZED; THERE IS NO HINT OF TESTIMONIAL COMPULSION.  THE COURT OF
APPEALS' SUBSEQUENT ATTEMPT TO READ THE "SPIRIT OF THE FIFTH AMENDMENT"
INTO THE PRODUCTION OF VOICE EXEMPLARS CANNOT SURVIVE COMPARISON WITH
WADE, GILBERT, AND SCHMERBER. 

/7/  SEE GENERALLY KASTIGAR V. UNITED STATES, 406 U.S. 441, 443-444;
BLAIR V. UNITED STATES, 250 U.S. 273, 279-281; 8 J.WIGMORE, EVIDENCE
2191 (J. MCNAUGHTON REV. 1961). 

/8/  THE OBLIGATION TO APPEAR IS NO DIFFERENT FOR A PERSON WHO MAY
HIMSELF BE THE SUBJECT OF THE GRAND JURY INQUIRY.  SEE UNITED STATES V.
DOE (SCHWARTZ), 457 F.2D, AT 898; UNITED STATES V. WINTER, 348 F.2D
204, 207-208. 

/9/  JUDGE WEINFELD CORRECTLY CHARACTERIZED DAVIS AS "BUT ANOTHER
APPLICATION OF THE PRINCIPLE THAT THE FOURTH AMENDMENT APPLIES TO ALL
SEARCHES AND SEIZURES OF THE PERSON NO MATTER WHAT THE SCOPE OR
DURATION.  IT HELD THAT IN THE CIRCUMSTANCES THERE PRESENTED THE
DETENTION FOR THE SOLE PURPOSE OF FINGERPRINTING WAS IN VIOLATION OF
THE FOURTH AMENDMENT BAN AGAINST UNREASONABLE SEARCH AND SEIZURE." 
THOM V. NEW YORK STOCK EXCHANGE, 306 F.SUPP.  1002, 1007 (FOOTNOTE
OMITTED).  SEE ALSO ALLEN V. CUPP, 426 F.2D 756, 760.     /10/  WHILE
BOYD WAS CONCERNED WITH A MOTION TO PRODUCE INVOICES AT A FORFEITURE
TRIAL, THE COURT TREATED IT AS THE EQUIVALENT OF A SUBPOENA DUCES
TECUM, AND HALE V. HENKEL, 201 U.S. 43, 76, APPLIED BOYD IN THE CONTEXT
OF A GRAND JURY SUBPOENA. 

/11/  AS NOTED SUPRA, AT 11, THERE IS NO VALID COMPARISON BETWEEN THE
DETENTIONS OF THE 24 YOUTHS IN DAVIS, AND THE GRAND JURY SUBPOENAS OF
THE WITNESSES HERE.  WHILE THE DRAGNET DETENTIONS BY THE POLICE DID
CONSTITUTE SUBSTANTIAL INTRUSIONS INTO THE FOURTH AND FOURTEENTH
AMENDMENT RIGHTS OF EACH OF THE YOUTHS IN DAVIS, NO PERSON HAS A
JUSTIFIABLE EXPECTATION OF IMMUNITY FROM A GRAND JURY SUBPOENA. 
/12/  "(THE GRAND JURY) IS A GRAND INQUEST, A BODY WITH POWERS OF
INVESTIGATION AND INQUISITION, THE SCOPE OF WHOSE INQUIRIES IS NOT TO
BE LIMITED NARROWLY BY QUESTIONS OF PROPRIETY OR FORECASTS OF THE
PROBABLE RESULT OF THE INVESTIGATION, OR BY DOUBTS WHETHER ANY
PARTICULAR INDIVIDUAL WILL BE FOUND PROPERLY SUBJECT TO AN ACCUSATION
OF CRIME.  AS HAS BEEN SAID BEFORE, THE IDENTITY OF THE OFFENDER, AND
THE PRECISE NATURE OF THE OFFENSE, IF THERE BE ONE, NORMALLY ARE
DEVELOPED AT THE CONCLUSION OF THE GRAND JURY'S LABORS, NOT AT THE
BEGINNING.  HENDRICKS V. UNITED STATES, 223 U.S. 178, 184."  BLAIR V.
UNITED STATES, 250 U.S., AT 282. 

/13/  IN HALE V. HENKEL, 201 U.S., AT 77, THE COURT FOUND THAT SUCH
A STANDARD HAD NOT BEEN MET, BUT AS NOTED SUPRA, AT 11-12, THAT WAS A
CASE WHERE THE FOURTH AMENDMENT HAD BEEN INFRINGED BY AN OVERLY BROAD
SUBPOENA TO PRODUCE BOOKS AND PAPERS. 

/14/  MR. JUSTICE MARSHALL, IN DISSENT, POST, P. 31, SUGGESTS THAT A
PRELIMINARY SHOWING OF "REASONABLENESS" IS REQUIRED WHERE THE GRAND
JURY SUBPOENA A WITNESS TO APPEAR AND PRODUCE HANDWRITING OR VOICE
EXEMPLARS, BUT NOT WHEN IT SUBPOENAS HIM TO APPEAR AND TESTIFY.  SUCH A
DISTINCTION FINDS NO SUPPORT IN THE CONSTITUTION.  HIS DISSENT ARGUES
THAT THERE IS A POTENTIAL FOURTH AMENDMENT VIOLATION IN THE CASE OF A
SUBPOENAED GRAND JURY WITNESS BECAUSE OF THE ASSERTED INTRUSIVENESS OF
THE INITIAL SUBPOENA TO APPEAR-- THE POSSIBLE STIGMA FROM A GRAND JURY
APPEARANCE AND THE INCONVENIENCE OF THE OFFICIAL RESTRAINT.  BUT THE
INITIAL DIRECTIVE TO APPEAR IS AS INTRUSIVE IF THE WITNESS IS CALLED
SIMPLY TO TESTIFY AS IT IS IF HE IS SUMMONED TO PRODUCE PHYSICAL
EVIDENCE. 

/15/  "(THE INSTITUTION WAS ADOPTED IN THIS COUNTRY, AND IS CONTINUED
FROM CONSIDERATIONS SIMILAR TO THOSE WHICH GIVE TO IT ITS CHIEF VALUE
IN ENGLAND, AND IS DESIGNED AS A MEANS, NOT ONLY OF BRINGING TO TRIAL
PERSONS ACCUSED OF PUBLIC OFFENSES UPON JUST GROUNDS, BUT ALSO AS A
MEANS OF PROTECTING THE CITIZEN AGAINST UNFOUNDED ACCUSATION, WHETHER
IT COMES FROM GOVERNMENT, OR BE PROMPTED BY PARTISAN PASSION OR PRIVATE
ENMITY.  NO PERSON SHALL BE REQUIRED, ACCORDING TO THE FUNDAMENTAL LAW
OF THE COUNTRY, EXCEPT IN THE CASES MENTIONED, TO ANSWER FOR ANY OF THE
HIGHER CRIMES UNLESS THIS BODY, CONSISTING OF NOT LESS THAN SIXTEEN NOR
MORE THAN TWENTY-THREE GOOD AND LAWFUL MEN, SELECTED FROM THE BODY OF
THE DISTRICT, SHALL DECLARE, UPON CAREFUL DELIBERATION, UNDER THE
SOLEMNITY OF AN OATH, THAT THERE IS NO GOOD REASON FOR HIS ACCUSATION
AND TRIAL."  EX PARTE BAIN, 121 U.S. 1, 11 (QUOTING GRAND JURY CHARGE
OF MR. JUSTICE FIELD).  SEE ALSO WOOD V. GEORGIA, 370 U.S. 375, 390. 

/16/  THE POSSIBILITIES FOR DELAY CAUSED BY REQUIRING INITIAL
SHOWINGS OF "REASONABLENESS" ARE ILLUSTRATED BY THE COURT OF APPEALS'
SUBSEQUENT DECISION IN IN RE SEPTEMBER 1971 GRAND JURY, 454 F.2D 580,
REV'D SUB NOM.  UNITED STATES V. MARA, POST, P. 19, WHERE THE COURT
HELD THAT THE GOVERNMENT WAS REQUIRED TO SHOW IN AN ADVERSARY HEARING
THAT ITS REQUEST FOR EXEMPLARS WAS REASONABLE, AND "REASONABLENESS"
INCLUDED PROOF THAT THE EXEMPLARS COULD NOT BE OBTAINED FROM OTHER
SOURCES. 

PHILIP A. LACOVARA ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
PETERSEN, WM. BRADFORD REYNOLDS, BEATRICE ROSENBERG, AND SIDNEY M.
GLAZER. 

JOHN POWERS CROWLEY ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :























UNITED STATES V. MARA, 410 U.S. 19 


       UNITED STATES V. MARA, AKA MARASOVICH

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

       SEVENTH CIRCUIT

        NO. 71-850.  ARGUED NOVEMBER 6, 1972-- DECIDED JANUARY 22,

           1973 


RESPONDENT, SUBPOENAED TO FURNISH HANDWRITING EXEMPLARS TO ENABLE A
GRAND JURY TO DETERMINE WHETHER HE WAS THE AUTHOR OF CERTAIN WRITINGS,
WAS HELD IN CONTEMPT AFTER REFUSING COMPLIANCE, THE DISTRICT COURT
HAVING REJECTED RESPONDENT'S CONTENTION THAT SUCH COMPELLED PRODUCTION
WOULD CONSTITUTE AN UNREASONABLE SEARCH AND SEIZURE.  THE COURT OF
APPEALS REVERSED, HOLDING THAT THE FOURTH AMENDMENT APPLIED AND THAT
THE GOVERNMENT HAD TO MAKE A PRELIMINARY SHOWING OF REASONABLENESS. 
HELD:  THE SPECIFIC AND NARROWLY DRAWN DIRECTIVE TO FURNISH A
HANDWRITING SPECIMEN, WHICH, LIKE THE COMPELLED SPEECH DISCLOSURE
UPHELD IN UNITED STATES V. DIONISIO, ANTE, P. 1, INVOLVED PRODUCTION OF
PHYSICAL CHARACTERISTICS, VIOLATED NO LEGITIMATE FOURTH AMENDMENT
INTEREST.  PP. 21-22. 

454 F.2D 580, REVERSED AND REMANDED. 

STEWART J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. 
DOUGLAS, J., POST, P. 23, BRENNAN, J., POST, P. 22, AND MARSHALL, J.,
POST, P. 31, FILED DISSENTING OPINIONS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, RICHARD J. MARA, WAS SUBPOENAED TO APPEAR BEFORE THE
SEPTEMBER 1971 GRAND JURY IN THE NORTHERN DISTRICT OF ILLINOIS THAT WAS
INVESTIGATING THEFTS OF INTERSTATE SHIPMENTS.  ON TWO SEPARATE
OCCASIONS HE WAS DIRECTED TO PRODUCE HANDWRITING AND PRINTING EXEMPLARS
TO THE GRAND JURY'S DESIGNATED AGENT.  EACH TIME HE WAS ADVISED THAT HE
WAS A POTENTIAL DEFENDANT IN THE MATTER UNDER INVESTIGATION.  ON BOTH
OCCASIONS HE REFUSED TO PRODUCE THE EXEMPLARS. 

THE GOVERNMENT THEN PETITIONED THE UNITED STATES DISTRICT COURT TO
COMPEL MARA TO FURNISH THE HANDWRITING AND PRINTING EXEMPLARS TO THE
GRAND JURY.  THE PETITION INDICATED THAT THE EXEMPLARS WERE "ESSENTIAL
AND NECESSARY" TO THE GRAND JURY INVESTIGATION AND WOULD BE USED SOLELY
AS A STANDARD OF COMPARISON TO DETERMINE WHETHER MARA WAS THE AUTHOR OF
CERTAIN WRITINGS.  THE PETITION WAS ACCOMPANIED BY AN AFFIDAVIT OF AN
FBI AGENT, SUBMITTED IN CAMERA, WHICH SET FORTH THE BASIS FOR SEEKING
THE EXEMPLARS.  THE DISTRICT JUDGE REJECTED THE RESPONDENT'S CONTENTION
THAT THE COMPELLED PRODUCTION OF SUCH EXEMPLARS WOULD CONSTITUTE AN
UNREASONABLE SEARCH AND SEIZURE, AND HE ORDERED THE RESPONDENT TO
PROVIDE THEM.  WHEN THE WITNESS CONTINUED TO REFUSE TO DO SO, HE WAS
ADJUDGED TO BE IN CIVIL CONTEMPT AND WAS COMMITTED TO CUSTODY UNTIL HE
OBEYED THE COURT ORDER OR UNTIL THE EXPIRATION OF THE GRAND JURY TERM. 

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED.  454 F.2D
580.  RELYING ON ITS EARLIER DECISION IN IN RE DIONISIO, 442 F.2D 276,
REV'D ANT, P. 1, THE COURT FOUND THAT THE DIRECTIVE TO FURNISH THE
EXEMPLARS WOULD CONSTITUTE AN UNREASONABLE SEARCH AND SEIZURE.  "(IT IS
PLAIN THAT COMPELLING (MARA) TO FURNISH EXEMPLARS OF HIS HANDWRITING
AND PRINTING IS FORBIDDEN BY THE FOURTH AMENDMENT UNLESS THE GOVERNMENT
HAS COMPLIED WITH ITS REASONABLENESS REQUIREMENT.  . . "  454 F.2D, AT
582. 

THE COURT THEN TURNED TO TWO ISSUES NECESSARILY GENERATED BY ITS
DECISION IN DIONISIO-- THE PROCEDURE THE GOVERNMENT MUST FOLLOW AND THE
SUBSTANTIVE SHOWING IT MUST MAKE TO ESTABLISH THE REASONABLENESS OF THE
GRAND JURY'S DIRECTIVE.  IT REJECTED THE IN CAMERA PROCEDURE OF THE
DISTRICT COURT, AND HELD THAT THE GOVERNMENT WOULD HAVE TO PRESENT ITS
AFFIDAVIT IN OPEN COURT IN ORDER THAT MARA MIGHT CONTEST ITS
SUFFICIENCY.  THE COURT RULED THAT TO ESTABLISH "REASONABLENESS" THE
GOVERNMENT WOULD HAVE TO MAKE A SUBSTANTIVE SHOWING:  "THAT THE GRAND
JURY INVESTIGATION WAS PROPERLY AUTHORIZED, FOR A PURPOSE CONGRESS CAN
ORDER, THAT THE INFORMATION SOUGHT IS RELEVANT TO THE INQUIRY, AND THAT
. . . THE GRAND JURY PROCESS IS NOT BEING ABUSED.  . . . (THE
GOVERNMENT'S AFFIDAVIT MUST ALSO SHOW WHY SATISFACTORY HANDWRITING AND
PRINTING EXEMPLARS CANNOT BE OBTAINED FROM OTHER SOURCES WITHOUT GRAND
JURY COMPULSION."  454 F.2D, AT 584-585. 

WE GRANTED CERTIORARI, 406 U.S. 956, TO CONSIDER THIS CASE WITH
UNITED STATES V. DIONISIO, NO. 71-229; ANTE, P. 1. 

WE HAVE HELD TODAY IN DIONISIO, THAT A GRAND JURY SUBPOENA IS NOT A
"SEIZURE" WITHIN THE MEANING OF THE FOURTH AMENDMENT AND, FURTHER, THAT
THAT AMENDMENT IS NOT VIOLATED BY A GRAND JURY DIRECTIVE COMPELLING
PRODUCTION OF "PHYSICAL CHARACTERISTICS" THAT ARE "CONSTANTLY EXPOSED
TO THE PUBLIC."  ANTE, AT 9, 10, 14.  HANDWRITING, LIKE SPEECH, IS
REPEATEDLY SHOWN TO THE PUBLIC, AND THERE IS NO MORE EXPECTATION OF
PRIVACY IN THE PHYSICAL CHARACTERISTICS OF A PERSON'S SCRIPT THAN THERE
IS IN THE TONE OF HIS VOICE.  SEE UNITED STATES V. DOE (SCHWARTZ), 457
F.2D 895, 898-899; BRADFORD V. UNITED STATES, 413 F.2D 467, 471-472;
CF. GILBERT V. CALIFORNIA, 388 U.S. 263, 266-267.  CONSEQUENTLY THE
GOVERNMENT WAS UNDER NO OBLIGATION HERE, ANY MORE THAN IN DIONISIO, TO
MAKE A PRELIMINARY SHOWING OF "REASONABLENESS." 

INDEED, THIS CASE LACKS EVEN THE ASPECTS OF AN EXPANSIVE
INVESTIGATION THAT THE COURT OF APPEALS FOUND SIGNIFICANT IN DIONISIO. 
IN THAT CASE, 20 WITNESSES WERE SUMMONED TO GIVE EXEMPLARS; HERE THERE
WAS ONLY ONE.  THE SPECIFIC AND NARROWLY DRAWN DIRECTIVE REQUIRING THE
WITNESS TO FURNISH A SPECIMEN OF HIS HANDWRITING /1/  VIOLATED NO
LEGITIMATE FOURTH AMENDMENT INTEREST.  THE DISTRICT COURT WAS CORRECT,
THEREFORE, IN ORDERING THE RESPONDENT TO COMPLY WITH THE GRAND JURY'S
REQUEST. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND
THIS CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE RESPONDENT CONTENDS THAT BECAUSE HE HAS SEEN NEITHER THE
AFFIDAVIT NOR THE WRITINGS IN THE GRAND JURY'S POSSESSION, THE
GOVERNMENT MAY ACTUALLY BE SEEKING "TESTIMONIAL" COMMUNICATIONS-- THE
CONTENT AS OPPOSED TO THE PHYSICAL CHARACTERISTICS OF HIS WRITING.  BUT
THE GOVERNMENT'S PETITION FOR THE ORDER TO COMPEL PRODUCTION STATED:
"SUCH EXEMPLARS WILL BE USED SOLELY AS A STANDARD OF COMPARISON IN
ORDER TO DETERMINE WHETHER THE WITNESS IS THE AUTHOR OF CERTAIN
WRITINGS."  IF THE GOVERNMENT SHOULD SEEK MORE THAN THE PHYSICAL
CHARACTERISTICS OF THE WITNESS' HANDWRITING-- IF, FOR EXAMPLE, IT
SHOULD SEEK TO OBTAIN WRITTEN ANSWERS TO INCRIMINATING QUESTIONS OR A
SIGNATURE ON AN INCRIMINATING STATEMENT-- THEN, OF COURSE, THE WITNESS
COULD ASSERT HIS FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION. 

MR. JUSTICE BRENNAN, CONCURRING IN PART AND DISSENTING IN PART IN
NO. 71-229, ANTE, P. 1, AND DISSENTING IN NO. 71-850. 

I AGREE, FOR THE REASONS STATED BY THE COURT, THAT RESPONDENT
DIONISIO'S FIFTH AMENDMENT CLAIMS ARE WITHOUT MERIT.  I DISSENT,
HOWEVER, FROM THE COURT'S REJECTION OF THE FOURTH AMENDMENT CLAIMS OF
DIONISIO AND MARA AS ALSO WITHOUT MERIT.  I AGREE THAT NO UNREASONABLE
SEIZURE IN VIOLATION OF THE FOURTH AMENDMENT IS EFFECTED BY A GRAND
JURY SUBPOENA LIMITED TO REQUIRING THE APPEARANCE OF A SUSPECT TO
TESTIFY.  BUT INSOFAR AS THE SUBPOENA REQUIRES A SUSPECTS' APPEARANCE
IN ORDER TO OBTAIN VOICE OR HANDWRITING EXEMPLARS FROM HIM, I CONCLUDE,
SUBSTANTIALLY IN AGREEMENT WITH PART II OF MY BROTHER MARSHALL'S
DISSENT, THAT THE REASONABLENESS UNDER THE FOURTH AMENDMENT OF SUCH A
SEIZURE CANNOT SIMPLY BE PRESUMED.  I WOULD THEREFORE AFFIRM THE
JUDGMENTS OF THE COURT OF APPEALS REVERSING THE CONTEMPT CONVICTIONS
AND REMAND WITH DIRECTIONS TO THE DISTRICT COURT TO AFFORD THE
GOVERNMENT THE OPPORTUNITY TO PROVE REASONABLENESS UNDER THE STANDARD
FASHIONED BY THE COURT OF APPEALS. 

MR. JUSTICE DOUGLAS, DISSENTING.  /1/ 

JUDGE WILLIAM CAMPBELL, WHO HAS BEEN ON THE DISTRICT COURT IN
CHICAGO FOR OVER 32 YEARS, RECENTLY MADE THE FOLLOWING INDICTMENT
AGAINST THE GRAND JURY:  /1A/ 

"THIS GREAT INSTITUTION OF THE PAST HAS LONG CEASED TO BE THE
GUARDIAN OF THE PEOPLE FOR WHICH PURPOSE IT WAS CREATED AT RUNNYMEDE. 
TODAY IT IS BUT A CONVENIENT TOOL FOR THE PROSECUTOR-- TOO OFTEN USED
SOLELY FOR PUBLICITY.  ANY EXPERIENCED PROSECUTOR WILL ADMIT THAT HE
CAN INDICT ANYBODY AT ANY TIME FOR ALMOST ANYTHING BEFORE ANY GRAND
JURY." 

IT IS, INDEED, COMMON KNOWLEDGE THAT THE GRAND JURY, HAVING BEEN
CONCEIVED AS A BULWARK BETWEEN THE CITIZEN AND THE GOVERNMENT, IS NOW A
TOOL OF THE EXECUTIVE.  THE CONCESSION BY THE COURT THAT THE GRAND JURY
IS NO LONGER IN A REALISTIC SENSE "A PROTECTIVE BULWARK STANDING
SOLIDLY BETWEEN THE ORDINARY CITIZEN AND AN OVERZEALOUS PROSECUTOR" IS
REASON ENOUGH TO AFFIRM THESE JUDGMENTS. 

IT IS NOT UNCOMMON FOR WITNESSES SUMMONED TO APPEAR BEFORE THE GRAND
JURY AT A DESIGNATED ROOM TO DISCOVER THAT THE ROOM IS THE ROOM OF THE
PROSECUTOR.  THE CASES BEFORE US TODAY ARE PRIME EXAMPLES OF THIS
PERVERSION. 

RESPONDENT DIONISIO AND APPROXIMATELY 19 OTHERS WERE SUBPOENAED BY
THE SPECIAL FEBRUARY 1971 GRAND JURY FOR THE NORTHERN DISTRICT OF
ILLINOIS IN AN INVESTIGATION OF ILLEGAL GAMBLING OPERATIONS.  DURING
THE INVESTIGATION, THE GRAND JURY HAD RECEIVED AS EXHIBITS VOICE
RECORDINGS OBTAINED UNDER COURT ORDERS, ON WARRANTS ISSUED UNDER 18
U.S.C. 2518 AUTHORIZING WIRETAPS.  THE WITNESSES WERE INSTRUCTED TO GO
TO THE UNITED STATES ATTORNEY'S OFFICE, WITH THEIR OWN COUNSEL IF THEY
DESIRED, IN THE COMPANY OF AN FBI AGENT WHO HAD BEEN APPOINTED AS AN
AGENT OF THE GRAND JURY BY ITS FOREMAN, AND TO READ THE TRANSCRIPT OF
THE WIRE INTERCEPTION.  THE READINGS WERE RECORDED.  THE GRAND JURY
THEN COMPARED THE VOICES TAKEN FROM THE WIRETAP AND THE WITNESSES'
RECORD.  DIONISIO REFUSED TO MAKE THE VOICE EXEMPLARS ON THE GROUND
THEY WOULD VIOLATE HIS RIGHTS UNDER THE FOURTH AND FIFTH AMENDMENTS. 
THE GOVERNMENT FILED PETITIONS IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS TO COMPEL THE WITNESS TO FURNISH THE
EXEMPLARS TO THE GRAND JURY.  THE COURT REJECTED THE CONSTITUTIONAL
ARGUMENTS OF THE RESPONDENT AND DEMANDED COMPLIANCE.  DIONISIO AGAIN
REFUSED AND WAS ADJUDGED IN CIVIL CONTEMPT AND PLACED IN PRISON UNTIL
HE OBEYED THE COURT ORDER OR UNTIL THE TERM OF THE SPECIAL GRAND JURY
EXPIRED.  THE COURT OF APPEALS REVERSED, CONCLUDING THAT TO COMPEL
COMPLIANCE WOULD VIOLATE HIS FOURTH AMENDMENT RIGHTS.  IT HELD THAT
VOICE EXEMPLARS ARE PROTECTED BY THE CONSTITUTION FROM UNREASONABLE
SEIZURES AND THAT THE GOVERNMENT FAILED TO SHOW THE REASONABLENESS OF
ITS ACTIONS. 

THE SPECIAL SEPTEMBER 1971 GRAND JURY, ALSO IN THE NORTHERN DISTRICT
OF ILLINOIS, WAS CONVENED TO INVESTIGATE THEFTS OF INTERSTATE SHIPMENTS
OF GOODS THAT OCCURRED IN THE STATE.  RESPONDENT MARA WAS SUBPOENAED
AND WAS REQUESTED TO SUBMIT A SAMPLE OF HIS HANDWRITING BEFORE THE
GRAND JURY.  MARA REFUSED.  THE GOVERNMENT WENT TO THE DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, ASSERTING TO THE COURT THAT THE
HANDWRITING EXEMPLARS WERE "ESSENTIAL AND NECESSARY" TO THE
INVESTIGATION.  IN AN IN CAMERA PROCEEDING, THE COURT HELD THAT THE
WITNESS MUST COMPLY WITH THE REQUEST OF THE GRAND JURY.  THE COURT OF
APPEALS REVERSED ON THE BASIS OF ITS DECISION IN IN RE DIONISIO.  IT
OUTLINED THE PROCEDURES THE GOVERNMENT MUST FOLLOW IN CASES OF THIS
KIND.  FIRST, THE HEARING TO DETERMINE THE CONSTITUTIONALITY OF THE
SEIZURE MUST BE HELD IN OPEN COURT IN AN ADVERSARY MANNER. 
SUBSTANTIALLY, THE GOVERNMENT MUST SHOW THAT THE GRAND JURY WAS
PROPERLY AUTHORIZED TO INVESTIGATE A MATTER THAT CONGRESS HAD POWER TO
REGULATE, THAT THE INFORMATION SOUGHT WAS RELEVANT TO THE INQUIRY, AND
THAT THE GRAND JURY'S REQUEST FOR EXEMPLARS WAS ADEQUATE, BUT NOT
EXCESSIVE, FOR THE PURPOSES OF THE RELEVANT INQUIRY. 

TODAY, THE MAJORITY OVERRULES THIS REASONED OPINION OF THE SEVENTH
CIRCUIT. 

UNDER THE FOURTH AMENDMENT, LAW ENFORCEMENT OFFICERS MAY NOT COMPEL
THE PRODUCTION OF EVIDENCE, ABSENT A SHOWING OF THE REASONABLENESS OF
THE SEIZURE.  DAVIS V. MISSISSIPPI, 394 U.S. 721; BOYD V. UNITED
STATES, 116 U.S. 616.  THE TEST PROTECTS THE PERSON'S EXPECTATION OF
PRIVACY OVER THE THING.  WE SAID IN KATZ V. UNITED STATES, "THE FOURTH
AMENDMENT PROTECTS PEOPLE, NOT PLACES.  WHAT A PERSON KNOWINGLY EXPOSES
TO THE PUBLIC, EVEN IN HIS OWN HOME OR OFFICE, IS NOT A SUBJECT OF
FOURTH AMENDMENT PROTECTION.  . . . BUT WHAT HE SEEKS TO PRESERVE AS
PRIVATE, EVEN IN AN AREA ACCESSIBLE TO THE PUBLIC, MAY BE
CONSTITUTIONALLY PROTECTED."  389 U.S. 347, 351-352.  THE GOVERNMENT
ASSERTS THAT HANDWRITING AND VOICE EXEMPLARS DO NOT INVADE THE PRIVACY
OF AN INDIVIDUAL WHEN TAKEN BECAUSE THEY ARE PHYSICAL CHARACTERISTICS
THAT ARE EXPOSED TO THE PUBLIC.  IT ARGUES THAT, UNLESS THE PERSON
INVOLVED IS A RECLUSE, THESE CHARACTERISTICS ARE NOT MEANT TO BE
PRIVATE TO THE INDIVIDUAL AND THUS DO NOT QUALIFY FOR THE AID OF THE
FOURTH AMENDMENT. 

THIS COURT HAS HELD THAT FINGERPRINTS ARE SUBJECT TO THE
REQUIREMENTS OF THE SEARCH AND SEIZURE CLAUSE OF THE FOURTH AMENDMENT,
DAVIS V. MISSISSIPPI, SUPRA.  ON THE OTHER HAND, FACIAL SCARS,
BIRTHMARKS, AND OTHER FACIAL FEATURES HAVE BEEN SAID TO BE "IN PLAIN
VIEW" AND NOT PROTECTED.  UNITED STATES V. DOE (SCHWARTZ), 457 F.2D
895. 

IN DAVIS, THE SHERIFF IN MISSISSIPPI ROUNDED UP 24 BLACKS WHEN A
RAPE VICTIM DESCRIBED HER ASSAILANT ONLY AS A YOUNG NEGRO.  EACH WAS
FINGERPRINTED AND THEN RELEASED.  DAVIS WAS PRESENTED TO THE VICTIM BUT
WAS NOT IDENTIFIED.  HE WAS JAILED WITHOUT PROBABLE CAUSE, AND ONLY
LATER DID THE FBI CONFIRM THAT HIS FINGERPRINTS MATCHED THOSE ON THE
WINDOW OF THE VICTIM'S HOME.  THE COURT HELD THAT THE FINGERPRINTS
COULD NOT BE ADMITTED, AS THEY WERE SEIZED WITHOUT REASONABLE GROUNDS. 
"INVESTIGATORY SEIZURES WOULD SUBJECT UNLIMITED NUMBERS OF INNOCENT
PERSONS TO THE HARASSMENT AND IGNOMINY INCIDENT TO INVOLUNTARY
DETENTION.  NOTHING IS MORE CLEAR THAN THAT THE FOURTH AMENDMENT WAS
MEANT TO PREVENT WHOLESALE INTRUSIONS UPON THE PERSONAL SECURITY OF OUR
CITIZENRY, WHETHER THESE INTRUSIONS BE TERMED 'ARRESTS' OR
'INVESTIGATORY DETENTIONS.'"  DAVIS V. MISSISSIPPI, SUPRA, AT 726-727. 
THE DRAGNET EFFECT IN DIONISIO, WHERE APPROXIMATELY 20 PEOPLE WERE
SUBPOENAED FOR PURPOSES OF IDENTIFICATION, WAS JUST THE KIND OF
INVASION THAT THE DAVIS CASE SOUGHT TO PREVENT.  FACIAL FEATURES CAN BE
PRESENTED TO THE PUBLIC REGARDLESS OF THE COOPERATION OR COMPULSION OF
THE OWNER OF THE FEATURES.  BUT TO GET THE EXEMPLARS, THE INDIVIDUAL
MUST BE INVOLVED.  SO, ALTHOUGH A PERSON'S HANDWRITING IS USED IN
EVERYDAY LIFE AND SPEECH IS THE VEHICLE OF NORMAL SOCIAL INTERCOURSE,
WHEN THESE PERSONAL CHARACTERISTICS ARE SOUGHT FOR PURPOSES OF
IDENTIFICATION, THE GOVERNMENT ENTERS THE ZONE OF PRIVACY AND, IN MY
VIEW, MUST MAKE A SHOWING OF REASONABLENESS BEFORE SEIZURES MAY BE
MADE.     THE GOVERNMENT CONTENDS THAT SINCE THE PRODUCTION WAS BEFORE
THE GRAND JURY, A DIFFERENT STANDARD OF CONSTITUTIONAL LAW EXISTS
BECAUSE THE GRAND JURY HAS BROAD INVESTIGATORY POWERS.  BLAIR V. UNITED
STATES, 250 U.S. 273.  CF. UNITED STATES V. BRYAN, 339 U.S. 323.  THE
GOVERNMENT CONCEDES THAT THE FOURTH AMENDMENT APPLIES TO THE GRAND JURY
AND PREVENTS IT FROM EXECUTING SUBPOENAS DUCES TECUM THAT ARE OVERLY
BROAD.  HALE V. HENKEL, 201 U.S. 43, 76.  IT ASSERTS, HOWEVER, THAT
THAT IS THE LIMIT OF ITS APPLICATION.  BUT THE FOURTH AMENDMENT IS NOT
SO LIMITED, AS THIS COURT HAS HELD IN DAVIS, SUPRA, AND REITERATED IN
TERRY V. OHIO, 392 U.S. 1, WHERE IT HELD THAT THE AMENDMENT COMES INTO
EFFECT WHETHER OR NOT THERE IS A FULLBLOWN SEARCH.  THE ESSENTIAL
PURPOSE IS TO EXTEND ITS PROTECTION "WHEREVER AN INDIVIDUAL MAY HARBOR
A REASONABLE 'EXPECTATION OF PRIVACY.'"  ID., AT 9. 

JUST AS THE NATURE OF THE AMENDMENT REBELS AGAINST THE LIMITS THAT
THE GOVERNMENT SEEKS TO IMPOSE ON ITS COVERAGE, SO DOES THE NATURE OF
THE GRAND JURY ITSELF.  IT WAS SECURED AT RUNNYMEDE FROM KING JOHN AS A
CORNERSTONE OF THE LIBERTY OF THE PEOPLE.  IT WAS TO SERVE AS A BUFFER
BETWEEN THE STATE AND THE OFFENDER.  FOR NO MATTER HOW OBNOXIOUS A
PERSON MAY BE, THE UNITED STATES CANNOT PROSECUTE FOR A FELONY WITHOUT
AN INDICTMENT.  THE INDIVIDUAL IS THEREFORE PROTECTED BY A BODY OF HIS
PEERS WHO HAVE NO AXES TO GRIND OR ANY GOVERNMENT AGENCY TO SERVE.  IT
IS THE ONLY ACCUSATORIAL BODY OF THE FEDERAL GOVERNMENT RECOGNIZED BY
THE CONSTITUTION.  "THE VERY PURPOSE OF THE REQUIREMENT THAT A MAN BE
INDICTED BY GRAND JURY IS TO LIMIT HIS JEOPARDY TO OFFENSE CHARGED BY A
GROUP OF HIS FELLOW CITIZENS ACTING INDEPENDENTLY OF EITHER PROSECUTING
ATTORNEY OR JUDGE."  /2/  STIRONE V. UNITED STATES, 361 U.S. 212, 218. 
BUT HERE, AS THE COURT OF APPEALS SAID, "IT IS EVIDENT THAT THE GRAND
JURY IS SEEKING TO OBTAIN THE VOICE EXEMPLARS OF THE WITNESSES BY THE
USE OF ITS SUBPOENA POWERS BECAUSE PROBABLE CAUSE DID NOT EXIST FOR
THEIR ARREST OR FOR SOME OTHER, LESS UNUSUAL, METHOD OF COMPELLING THE
PRODUCTION OF THE EXEMPLARS."  IN RE DIONISIO, 442 F.2D 276, 280.  SEE
HANNAH V. LARCHE, 363 U.S. 420, 497-499 (DOUGLAS, J., DISSENTING).  ARE
WE TO STAND STILL AND WATCH THE PROSECUTION EVADE ITS OWN
CONSTITUTIONAL RESTRICTIONS ON ITS POWERS BY TURNING THE GRAND JURY
INTO ITS AGENT?  ARE WE TO ALLOW THE GOVERNMENT TO USURP POWERS THAT
WERE GRANTED TO THE PEOPLE BY THE MAGNA CARTA AND CODIFIED IN OUR
CONSTITUTION?  THAT WILL BE THE RESULT OF THE MAJORITY OPINION UNLESS
WE CONTINUE TO APPLY TO THE GRAND JURY THE PROTECTION OF THE FOURTH
AMENDMENT. 

AS THE COURT STATED IN HALE V. HENKEL, 201 U.S.,AT 59, "THE MOST
VALUABLE FUNCTION OF THE GRAND JURY" WAS "TO STAND BETWEEN THE
PROSECUTOR AND THE ACCUSED, AND TO DETERMINE WHETHER THE CHARGE WAS
FOUNDED UPON CREDIBLE TESTIMONY OR WAS DICTATED BY MALICE OR PERSONAL
ILL WILL." 

THE COURT HELD IN THAT CASE THAT THE FOURTH AMENDMENT WAS APPLICABLE
TO GRAND JURY PROCEEDINGS AND THAT A SWEEPING, ALL-INCLUSIVE SUBPOENA
WAS "EQUALLY INDEFENSIBLE AS A SEARCH WARRANT WOULD BE IF COUCHED IN
SIMILAR TERMS."  ID., AT 77. 

OF COURSE, THE GRAND JURY CAN REQUIRE PEOPLE TO TESTIFY.  HALE V.
HENKEL MAKES PLAIN THAT PROCEEDINGS BEFORE THE GRAND JURY DO NOT CARRY
ALL OF THE IMPEDIMENTA OF A TRIAL BEFORE A PETIT JURY.  TO DATE, THE
GRAND JURY CASES HAVE INVOLVED ONLY TESTIMONIAL EVIDENCE.  TO SAY, AS
THE GOVERNMENT SUGGESTS, THAT NONTESTIMONIAL EVIDENCE IS FREE FROM ANY
RESTRAINT IMPOSED BY THE FOURTH AMENDMENT IS TO GIVE THOSE WHO TODAY
MANIPULATE GRAND JURIES VAST AND UNCONTROLLABLE POWER. 

THE EXECUTIVE, ACTING THROUGH A PROSECUTOR, COULD NOT HAVE OBTAINED
THESE EXEMPLARS AS IT CHOSE, FOR AS STATED BY THE COURT OF APPEALS FOR
THE EIGHTH CIRCUIT, "WE CONCLUDE THAT THE TAKING OF THE HANDWRITING
EXEMPLARS . . . WAS A SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT." 
UNITED STATES V. HARRIS, 453 F.2D 1317, 1319.  AS KATZ V. UNITED
STATES, SUPRA, MAKES PLAIN, THE SEARCHES THAT MAY BE MADE WITHOUT PRIOR
APPROVAL BY JUDGE OR MAGISTRATE ARE "SUBJECT ONLY TO A FEW SPECIFICALLY
ESTABLISHED AND WELL-DELINEATED EXCEPTIONS."  389 U.S.,AT 357. 

THE SHOWING REQUIRED BY THE COURT OF APPEALS IN THE MARA CASE WAS
THAT THE GOVERNMENT'S SHOWING OF NEED FOR THE EXEMPLARS BE
"REASONABLE," WHICH "IS NOT NECESSARILY SYNONYMOUS WITH PROBABLE
CAUSE."  454 F.2D 580, 584.  WHEN WE COME TO GRAND JURIES, PROBABLE
CAUSE IN THE STRICT FOURTH AMENDMENT MEANING OF THE TERM DOES NOT HAVE
IN IT THE SAME INGREDIENTS POINTING TOWARD GUILT AS IT DOES IN THE
ARREST AND TRIAL OF PEOPLE.  IN TERMS OF PROBABLE CAUSE IN THE SETTING
OF THE GRAND JURY, THE QUESTION IS WHETHER THE EXEMPLAR SOUGHT IS IN
SOME WAY CONNECTED WITH THE SUSPECTED CRIMINAL ACTIVITY UNDER
INVESTIGATION.  CERTAINLY LESS THAN THAT SHOWING WOULD PERMIT THE
FOURTH AMENDMENT TO BE ROBBED OF ALL OF ITS VITALITY. 

IN THE MARA CASE, THE PROSECUTOR SUBMITTED TO THE DISTRICT COURT AN
AFFIDAVIT OF A GOVERNMENT INVESTIGATOR STATING THE NEED FOR THE
EXEMPLAR BASED ON HIS INVESTIGATION.  THE DISTRICT COURT PASSED ON THE
MATTER IN CAMERA, NOT SHOWING THE AFFIDAVIT TO EITHER RESPONDENT OR HIS
COUNSEL.  THE COURT OF APPEALS, RELYING ON ALDERMAN V. UNITED STATES,
394 U.S. 165, 183, HELD THAT IN SUCH CASES THERE SHOULD BE AN ADVERSARY
PROCEEDING.  454 F.2D, AT 582-583.  IF "REASONABLE CAUSE" IS TO PLAY
ANY FUNCTION IN CURBING THE EXECUTIVE APPETITE TO MANIPULATE GRAND
JURIES, THERE MUST BE AN OPPORTUNITY FOR A SHOWING THAT THERE WAS NO
"REASONABLE CAUSE."  AS WE STATED IN ALDERMAN:  "ADVERSARY PROCEEDINGS
WILL NOT MAGICALLY ELIMINATE ALL ERROR, BUT THEY WILL SUBSTANTIALLY
REDUCE ITS INCIDENCE BY GUARDING AGAINST THE POSSIBILITY THAT THE TRIAL
JUDGE, THROUGH LACK OF TIME OR UNFAMILIARITY WITH THE INFORMATION
CONTAINED IN AND SUGGESTED BY THE MATERIALS, WILL BE UNABLE TO PROVIDE
THE SCRUTINY WHICH THE FOURTH AMENDMENT EXCLUSIONARY RULE DEMANDS." 
394 U.S.,AT 184. 

THE DISTRICT COURT IN THE DIONISIO CASE WENT PART WAY BY ALLOWING
THE WITNESS TO HAVE HIS COUNSEL PRESENT WHEN THE VOICE EXEMPLARS WERE
PREPARED IN THE PROSECUTOR'S OFFICE.  442 F.2D, AT 278.  THE COURT OF
APPEALS ACTED IN A TRADITIONALLY FAIR WAY WHEN IT RULED THAT THE
REASONABLENESS OF A PROSECUTOR'S REQUEST FOR EXEMPLARS BE PUT DOWN FOR
AN ADVERSARY HEARING BEFORE THE DISTRICT COURT.  IT WOULD BE A TRAVESTY
OF JUSTICE TO ALLOW THE PROSECUTOR TO DO UNDER THE CLOAK OF THE GRAND
JURY WHAT HE COULD NOT DO ON HIS OWN. 

IN VIEW OF THE DISPOSITION WHICH I WOULD MAKE OF THESE CASES, I NEED
NOT REACH THE FIFTH AMENDMENT QUESTION.  BUT LEST THERE BE ANY DOUBT AS
TO WHERE I STAND, I ADHERE TO MY POSITION IN UNITED STATES V. WADE, 388
U.S. 218, 243 (SEPARATE STATEMENT), AND IN SCHMERBER V. CALIFORNIA, 384
U.S. 757, 773 (BLACK, J., DISSENTING, JOINED BY DOUGLAS J.), 778
(DOUGLAS, J., DISSENTING), TO THE EFFECT THAT THE FIFTH AMENDMENT IS
NOT RESTRICTED TO TESTIMONIAL COMPULSION. 

/1/  THIS OPINION APPLIES ALSO TO NO. 71-229, UNITED STATES V.
DIONISIO, ANTE, P. 1. 

/1A/  55 F.R.D. 229, 253 (1972). 

/2/  AS MR. JUSTICE BLACK SAID IN IN RE GROBAN, 352 U.S. 330, 346
347: 

"THE TRADITIONAL ENGLISH AND AMERICAN GRAND JURY IS COMPOSED OF 12
TO 23 MEMBERS SELECTED FROM THE GENERAL CITIZENRY OF THE LOCALITY WHERE
THE ALLEGED CRIME WAS COMMITTED.  THEY BRING INTO THE GRAND JURY ROOM
THE EXPERIENCE, KNOWLEDGE AND VIEWPOINT OF ALL SECTIONS OF THE
COMMUNITY.  THEY HAVE NO AXES TO GRIND AND ARE NOT CHARGED PERSONALLY
WITH THE ADMINISTRATION OF THE LAW.  NO ONE OF THEM IS A PROSECUTING
ATTORNEY OR LAW-ENFORCEMENT OFFICER FERRETING OUT CRIME.  IT WOULD BE
VERY DIFFICULT FOR OFFICERS OF THE STATE SERIOUSLY TO ABUSE OR DECEIVE
A WITNESS IN THE PRESENCE OF THE GRAND JURY.  SIMILARLY THE PRESENCE OF
THE JURORS OFFERS A SUBSTANTIAL SAFEGUARD AGAINST THE OFFICERS'
MISREPRESENTATION, UNINTENTIONAL OR OTHERWISE, OF THE WITNESS'
STATEMENT AND CONDUCT BEFORE THE GRAND JURY.  THE WITNESS CAN CALL ON
THE GRAND JURORS IF NEED BE FOR THEIR NORMALLY UNBIASED TESTIMONY AS TO
WHAT OCCURRED BEFORE THEM" 

ALTHOUGH THAT EXCERPT IS FROM A DISSENT ON THE PARTICULAR FACTS OF
THE CASE, THERE COULD BE NO DISAGREEMENT AS TO THE ACCURACY OF THE
DESCRIPTION OF THE GRAND JURY'S HISTORICAL FUNCTION. 

THE TENDENCY IS FOR GOVERNMENT TO USE SHORTCUTS IN ITS SEARCH FOR
INSTRUMENTS MORE SUSCEPTIBLE TO ITS MANIPULATION THAN IS THE HISTORIC
GRAND JURY.  SEE HANNAH V. LARCHE, 363 U.S. 420, 505 (DOUGLAS, J.,
DISSENTING); JENKINS V. MCKEITHEN, 395 U.S. 411. 

MR. JUSTICE MARSHALL, DISSENTING.  /1/ 

THE COURT CONSIDERS UNITED STATES V. WADE, 388 U.S. 218, 221-223
(1967), AND GILBERT V. CALIFORNIA, 388 U.S. 263, 265-267 (1967),
DISPOSITIVE OF RESPONDENT DIONISIO'S CONTENTION THAT COMPELLED
PRODUCTION OF A VOICE EXEMPLAR WOULD VIOLATE HIS FIFTH AMENDMENT
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION.  RESPONDENT MARA ALSO
ARGUED BELOW THAT COMPELLED PRODUCTION OF THE HANDWRITING AND PRINTING
EXEMPLARS SOUGHT FROM HIS WOULD VIOLATE HIS FIFTH AMENDMENT PRIVILEGE. 
I ASSUME THE COURT WOULD CONSIDER WADE AND GILBERT TO BE DISPOSITIVE OF
THAT CLAIM AS WELL.  /1A/  THE COURT READS THOSE CASES AS HOLDING THAT
VOICE AND HANDWRITING EXEMPLARS MAY BE SOUGHT FOR THE EXCLUSIVE PURPOSE
OF MEASURING "THE PHYSICAL PROPERTIES" OF THE WITNESS' VOICE OR
HANDWRITING WITHOUT RUNNING AFOUL OF THE FIFTH AMENDMENT PRIVILEGE. 
ANTE, AT 7.  SUCH IDENTIFICATION EVIDENCE IS NOT WITHIN THE PURVIEW OF
THE FIFTH AMENDMENT, THE COURT SAYS, FOR, AT LEAST SINCE SCHMERBER V.
CALIFORNIA, 384 U.S. 757, 764 (1966), IT HAS BEEN CLEAR THAT WHILE "THE
PRIVILEGE IS A BAR AGAINST COMPELLING 'COMMUNICATIONS' OR 'TESTIMONY,'
. . . COMPULSION WHICH MAKES A SUSPECT OR ACCUSED THE SOURCE OF 'REAL
OR PHYSICAL EVIDENCE' DOES NOT VIOLATE IT." 

I WAS NOT A MEMBER OF THIS COURT WHEN WADE AND GILBERT WERE
DECIDED.  HAD I BEEN, I WOULD HAVE FOUND IT MOST DIFFICULT TO JOIN
THOSE DECISIONS INSOFAR AS THEY DEALT WITH THE FIFTH AMENDMENT
PRIVILEGE.  SINCE, AS I DISCUSS IN PART II, I CONSIDER THE FOURTH
AMENDMENT TO REQUIRE AFFIRMANCE OF THE DECISIONS BELOW IN THESE CASES,
I NEED NOT RELY AT THIS TIME UPON THE FIFTH AMENDMENT PRIVILEGE. 
NEVERTHELESS, I FEEL CONSTRAINED TO EXPRESS HERE AT LEAST MY SERIOUS
RESERVATIONS CONCERNING THE FIFTH AMENDMENT PORTIONS OF WADE AND
GILBERT, SINCE THOSE DECISIONS ARE SO CENTRAL TO THE COURT'S RESULT
TODAY. 

THE ROOT OF MY DIFFICULTY WITH WADE AND GILBERT IS THE TESTIMONIAL
EVIDENCE LIMITATION THAT HAS BEEN IMPOSED UPON THE FIFTH AMENDMENT
PRIVILEGE IN THE DECISIONS OF THIS COURT.  THAT LIMITATION IS AT ODDS
WITH WHAT I HAVE ALWAYS UNDERSTOOD TO BE THE FUNCTION OF THE
PRIVILEGE.  I WOULD, OF COURSE, INCLUDE TESTIMONIAL EVIDENCE WITHIN THE
PRIVILEGE, BUT I HAVE GRAVE DIFFICULTY DRAWING A LINE THERE.  FOR I
CANNOT ACCEPT THE NOTION THAT THE GOVERNMENT CAN COMPEL A MAN TO
COOPERATE AFFIRMATIVELY IN SECURING INCRIMINATING EVIDENCE WHEN THAT
EVIDENCE COULD NOT BE OBTAINED WITHOUT THE COOPERATION OF THE SUSPECT. 
INDEED, UNTIL WADE AND GILBERT, THE COURT HAD NEVER CARRIED THE
TESTIMONIAL LIMITATION SO FAR AS TO ALLOW LAW ENFORCEMENT OFFICIALS TO
ENLIST AN INDIVIDUAL'S OVERT ASSISTANCE-- THAT IS, TO ENLIST HIS WILL--
IN INCRIMINATING HIMSELF.  AND I REMAIN UNABLE TO DISCERN ANY
SUBSTANTIAL CONSTITUTIONAL FOOTING ON WHICH TO REST THAT LIMITATION ON
THE REACH OF THE PRIVILEGE. 

CERTAINLY IT IS DIFFICULT TO DRAW VERY MUCH SUPPORT FOR THE
TESTIMONIAL LIMITATION FROM THE LANGUAGE OF THE AMENDMENT ITSELF.  THE
FIFTH AMENDMENT PROVIDES THAT "(NO PERSON . . . SHALL BE COMPELLED IN
ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF.  . . . "  NOWHERE IS
THE PRIVILEGE EXPLICITLY RESTRICTED TO TESTIMONIAL EVIDENCE.  TO READ
SUCH A LIMITATION INTO THE PRIVILEGE THROUGH ITS REFERENCE TO "WITNESS"
IS JUST THE SORT OF CRABBED CONSTRUCTION OF THE PROVISION THAT THIS
COURT HAS LONG ESCHEWED.  THUS, SOME 80 YEARS AGO THE COURT REJECTED
THE CONTENTION THAT A GRAND JURY WITNESS COULD NOT INVOKE THE PRIVILEGE
BECAUSE IT APPLIED, IN TERMS, ONLY IN A "CRIMINAL CASE."  COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 562 (1892).  THE COURT EMPHASIZED THAT THE
PRIVILEGE "IS AS BROAD AS THE MISCHIEF AGAINST WHICH IT SEEKS TO
GUARD."  IBID.  EVEN EARLIER, THE COURT, IN HOLDING THAT THE PRIVILEGE
COULD BE INVOKED IN THE CONTEXT OF A CIVIL FORFEITURE PROCEEDING, HAD
WARNED THAT: 

"(CONSTITUTIONAL PROVISIONS FOR THE SECURITY OF PERSON AND PROPERTY
SHOULD BE LIBERALLY CONSTRUED.  A CLOSE AND LITERAL CONSTRUCTION
DEPRIVES THEM OF HALF THEIR EFFICACY, AND LEADS TO GRADUAL DEPRECIATION
OF THE RIGHT, AS IF IT CONSISTED MORE IN SOUND THAN IN SUBSTANCE." 
BOYD V. UNITED STATES, 116 U.S. 616, 635 (1886).  MOREOVER, BOYD
ITSELF, WHICH INVOLVED A SUBPOENA DIRECTED AT PRIVATE PAPERS, MAKES
CLEAR THAT "WITNESS" IS NOT TO BE RESTRICTED TO THE ACT OF GIVING ORAL
TESTIMONY AGAINST ONESELF.  RATHER, THAT DECISION SUGGESTS WHAT I
BELIEVE TO BE THE MOST REASONABLE CONSTRUCTION OF THE PROTECTION
AFFORDED BY THE PRIVILEGE, NAMELY, PROTECTION AGAINST BEING "COMPELLED)
. . . TO FURNISH EVIDENCE AGAINST" ONESELF, ID., AT 637.  SEE ALSO
SCHMERBER V. CALIFORNIA, 384 U.S.,AT 776-777 (BLACK J., DISSENTING). 

SUCH A CONSTRUCTION IS DICTATED BY THE PURPOSE OF THE PRIVILEGE.  IN
PART, OF COURSE, THE PRIVILEGE DERIVES FROM THE VIEW THAT CERTAIN FORMS
OF COMPELLED EVIDENCE ARE INHERENTLY UNRELIABLE.  SEE, E.G., IN RE
GAULT, 387 U.S. 1, 47 (1967).  BUT THE PRIVILEGE-- AS A CONSTITUTIONAL
GUARANTEE SUBJECT TO INVOCATION BY THE INDIVIDUAL-- IS OBVIOUSLY FAR
MORE THAN A RULE CONCERNED SIMPLY WITH THE PROBATIVE FORCE OF CERTAIN
EVIDENCE.  ITS ROOTS "TAP THE BASIC STREAM OF RELIGIOUS AND POLITICAL
PRINCIPLE (AND REFLECT) THE LIMITS OF THE INDIVIDUAL'S ATTORNMENT TO
THE STATE . . . . "  IBID.  ITS "CONSTITUTIONAL FOUNDATION . . . IS THE
RESPECT A GOVERNMENT-- STATE OR FEDERAL-- MUST ACCORD TO THE DIGNITY
AND INTEGRITY OF ITS CITIZENS.  TO MAINTAIN A 'FAIR STATE-INDIVIDUAL
BALANCE,' TO REQUIRE THE GOVERNMENT 'TO SHOULDER THE ENTIRE LOAD'  . .
. , TO RESPECT THE INVIOLABILITY OF THE HUMAN PERSONALITY, OUR
ACCUSATORY SYSTEM OF CRIMINAL JUSTICE DEMANDS THAT THE GOVERNMENT
SEEKING TO PUNISH AN INDIVIDUAL PRODUCE THE EVIDENCE AGAINST HIM BY ITS
OWN INDEPENDENT LABORS, RATHER THAN BY THE CRUEL, SIMPLE EXPEDIENT OF
COMPELLING IT FROM HIS OWN MOUTH."  MIRANDA V. ARIZONA, 384 U.S. 436,
460 (1966).  CF. ALSO ROGERS V. RICHMOND, 365 U.S. 534, 540-541
(1961).  IT IS ONLY BY PROHIBITING THE GOVERNMENT FROM COMPELLING AN
INDIVIDUAL TO COOPERATE AFFIRMATIVELY IN SECURING INCRIMINATING
EVIDENCE WHICH COULD NOT BE OBTAINED WITHOUT HIS ACTIVE ASSISTANCE,
THAT "THE INVIOLABILITY OF THE HUMAN PERSONALITY" IS ASSURED.  IN MY
VIEW, THE TESTIMONIAL LIMITATION ON THE PRIVILEGE SIMPLY FAILS TO TAKE
ACCOUNT OF THIS PURPOSE. 

THE ROOT OF THE TESTIMONIAL LIMITATION SEEMS TO BE MR. JUSTICE
HOLMES' OPINION FOR THE COURT IN HOLT V. UNITED STATES, 218 U.S. 245
(1910).  IN HOLT, THE DEFENDANT CHALLENGED THE ADMISSION AT TRIAL OF
CERTAIN TESTIMONY THAT A BLOUSE BELONGED TO THE DEFENDANT.  A WITNESS
TESTIFIED THAT DEFENDANT PUT ON THE BLOUSE AND THAT IT FITTED HIM.  THE
DEFENDANT ARGUED THAT THIS TESTIMONY VIOLATED HIS FIFTH AMENDMENT
PRIVILEGE BECAUSE HE HAD ACTED UNDER DURESS.  IN THE COURSE OF
DISPOSING OF THE DEFENDANT'S ARGUMENT, MR. JUSTICE HOLMES SAID THAT
"THE PROHIBITION OF COMPELLING A MAN IN A CRIMINAL COURT TO BE WITNESS
AGAINST HIMSELF IS A PROHIBITION OF THE USE OF PHYSICAL OR MORAL
COMPULSION TO EXTORT COMMUNICATIONS FROM HIM, NOT AN EXCLUSION OF HIS
BODY AS EVIDENCE WHEN IT MAY BE MATERIAL."  ID., AT 252-253.  THIS
REMARK CAN ONLY BE CONSIDERED DICTUM, HOWEVER, FOR THE CASE AROSE
BEFORE THIS COURT ESTABLISHED THE RULE THAT ILLEGALITY SEIZED EVIDENCE
MAY NOT BE ADMITTED IN FEDERAL COURT, SEE WEEKS V. UNITED STATES, 232
U.S. 383 (1914), AND THUS HOLT'S CLAIM OF PRIVILEGE WAS ULTIMATELY
DISPOSED OF SIMPLY ON THE GROUND THAT "WHEN (A MAN) IS EXHIBITED,
WHETHER VOLUNTARILY OR BY ORDER, AND EVEN IF THE ORDER GOES TOO FAR,
THE EVIDENCE, IF MATERIAL, IS COMPETENT.  ADAMS V. NEW YORK, 192 U.S.
585."  218 U.S.,AT 253. 

WITH ITS DECISION IN SCHMERBER, HOWEVER, THE COURT ELEVATED THE
DICTUM OF HOLT TO FULL CONSTITUTIONAL STATURE.  MR. JUSTICE HOLMES'
LANGUAGE WAS CENTRAL TO THE COURT'S CONCLUSION THAT THE TAKING OF A
BLOOD SAMPLE, OVER THE OBJECTION OF THE INDIVIDUAL, TO DETERMINE
ALCOHOLIC CONTENT WAS NOT BARRED BY THE FIFTH AMENDMENT PRIVILEGE SINCE
THE RESULTING BLOOD TEST EVIDENCE "WAS NEITHER (THE INDIVIDUAL'S)
TESTIMONY NOR EVIDENCE RELATING TO SOME COMMUNICATIVE ACT . . . . "
384 U.S.,AT 765.  INDEED, THE COURT APPEARED TO CONSIDER IT ESTABLISHED
SINCE HOLT THAT THE FIFTH AMENDMENT PRIVILEGE EXTENDED ONLY TO
"'TESTIMONY'" OR "'COMMUNICATIONS,'" BUT NOT TO "'REAL OR PHYSICAL
EVIDENCE,'" ID., AT 764; AND THIS "ESTABLISHED" PRINCIPLE WAS
SUFFICIENT, FOR THE COURT, TO DISPOSE OF ANY "LOOSE DICTA" IN MIRANDA
THAT MIGHT SUGGEST A MORE EXTENSIVE PURPOSE FOR THE PRIVILEGE. 

AFTER SCHMERBER, WADE AND GILBERT WERE RELATIVELY EASY STEPS FOR A
COURT FOCUSING EXCLUSIVELY ON THE NATURE OF THE EVIDENCE COMPELLED. 
THUS, THE COURT INDICATED THAT "COMPELLING WADE TO SPEAK WITHIN HEARING
DISTANCE OF THE WITNESSES, EVEN TO UTTER WORDS PURPORTEDLY UTTERED BY
THE ROBBER," WAS "NO DIFFERENT FROM COMPELLING SCHMERBER TO PROVIDE A
BLOOD SAMPLE OR HOLT TO WEAR THE BLOUSE."  388 U.S.,AT 222.  SIMILARLY,
IN GILBERT, 388 U.S.,AT 266-267, THE COURT REASONED THAT "(A) MERE
HANDWRITING EXEMPLAR, IN CONTRAST TO THE CONTENT OF WHAT IS WRITTEN,
LIKE THE VOICE OR BODY ITSELF, IS AN IDENTIFYING PHYSICAL
CHARACTERISTIC OUTSIDE (THE PRIVILEGE'S) PROTECTION." 

YET, IF WE LOOK BEYOND THE TESTIMONIAL LIMITATION, WADE AND GILBERT
CLEARLY WERE NOT DIRECT AND EASY EXTENSIONS OF SCHMERBER AND HOLT.  FOR
IT IS ONLY IN WADE AND GILBERT THAT THE COURT, FOR THE FIRST TIME, HELD
IN EFFECT THAT AN INDIVIDUAL COULD BE COMPELLED TO GIVE TO THE STATE
EVIDENCE AGAINST HIMSELF WHICH COULD BE SECURED ONLY THROUGH HIS
AFFIRMATIVE COOPERATION-- THAT IS, "TO ACCUSE HIMSELF BY A VOLITIONAL
ACT WHICH DIFFERS ONLY IN DEGREE FROM COMPELLING HIM TO ACT OUT THE
CRIME," WADE V. UNITED STATES, 388 U.S.,AT 261 (FORTAS, J., CONCURRING
IN PART AND DISSENTING IN PART).  THE VOICE AND HANDWRITING SAMPLES
SOUGHT IN WADE AND GILBERT SIMPLY COULD NOT BE OBTAINED WITHOUT THE
INDIVIDUAL'S ACTIVE COOPERATION.  HOLT AND SCHMERBER WERE CERTAINLY NOT
SUCH CASES.  IN THOSE INSTANCES THE INDIVIDUAL WAS REQUIRED, AT MOST,
TO SUBMIT PASSIVELY TO A BLOOD TEST OR TO THE FITTING OF A SHIRT. 
WHATEVER THE REASONING OF THOSE DECISIONS, I DO NOT UNDERSTAND THEM TO
INVOLVE THE SORT OF INTERFERENCE WITH AN INDIVIDUAL'S PERSONALITY AND
WILL THAT THE FIFTH AMENDMENT PRIVILEGE WAS INTENDED TO PREVENT.  TO BE
SURE, IN SITUATIONS SUCH AS THOSE PRESENTED IN HOLT AND SCHMERBER THE
INDIVIDUAL MAY RESIST AND BY PHYSICALLY SUBDUED, AND IN THAT SENSE,
COMPULSION MAY BE EMPLOYED.  OR, ALTERNATIVELY, THE INDIVIDUAL IN THOSE
SITUATIONS MAY ELECT TO YIELD TO THE THREAT OF CONTEMPT AND COOPERATE
AFFIRMATIVELY WITH IS ACCUSERS, THUS ELIMINATING THE NEED FOR FORCE
AND, IN THAT SENSE, HIS WILL MAY BE SUBVERTED.  BUT IN NEITHER CASE IS
THE INTRUSION ON AN INDIVIDUAL'S DIGNITY THE SAME OR AS SEVERE AS THE
AFFRONT THAT OCCURS WHEN THE STATE SECURES FROM HIM INCRIMINATING
EVIDENCE THAT CAN BE OBTAINED ONLY BY ENLISTING THE COOPERATION OF HIS
WILL.  THUS, I DO NOT NECESSARILY CONSIDER THE RESULTS IN HOLT AND
SCHMERBER TO BE INCONSISTENT WITH THE PURPOSE AND PROPER REACH OF THE
FIFTH AMENDMENT PRIVILEGE.  /2/ 

BUT SO LONG AS WE HAVE A CONSTITUTION WHICH PROTECTS AT ALL COSTS
THE INTEGRITY OF INDIVIDUAL VOLITION AGAINST SUBORDINATING STATE POWER,
WADE AND GILBERT MUST BE VIEWED AS LEGAL ANOMALIES.  AS MR. JUSTICE
FORTAS, JOINED BY MR. JUSTICE DOUGLAS AND THE CHIEF JUSTICE, ARGUED ON
THE DAY THOSE CASES WERE DECIDED: 

     "OUR HISTORY AND TRADITION TEACH AND COMMAND THAT AN ACCUSED

  MAY STAND MUTE.  THE PRIVILEGE MEANS JUST THAT; NOT LESS THAN

THAT.  ACCORDING TO THE COURT, AN ACCUSED MAY BE JAILED--

INDEFINITELY-- UNTIL HE IS WILLING TO SAY, FOR AN IDENTIFYING

  AUDIENCE, WHATEVER WAS SAID IN THE COURSE OF THE COMMISSION OF

  THE CRIME.  PRESUMABLY THIS WOULD INCLUDE, 'YOUR MONEY OR YOUR

  LIFE'-- OR PERHAPS, WORDS OF ASSAULT IN A RAPE CASE.  THIS IS

  INTOLERABLE UNDER OUR CONSTITUTIONAL SYSTEM."  UNITED STATES V.

  WADE, 388 U.S.,AT 260. 

SEE ALSO GILBERT V. CALIFORNIA, 388 U.S.,AT 291-292 (FORTAS, J.,
CONCURRING IN PART AND DISSENTING IN PART). 

I FEAR THE COURT'S DECISIONS TODAY ARE FURTHER ILLUSTRATIONS OF THE
EXTENT TO WHICH THE COURT HAS GONE ASTRAY IN DEFINING THE REACH OF THE
FIFTH AMENDMENT PRIVILEGE AND HAS LOST TOUCH WITH THE CONSTITUTION'S
CONCERN FOR THE "INVIOLABILITY OF THE HUMAN PERSONALITY."  IN BOTH
THESE CASES, THE GOVERNMENT SEEKS TO SECURE POSSIBLY INCRIMINATING
EVIDENCE THAT CAN BE ACQUIRED ONLY WITH RESPONDENTS' AFFIRMATIVE
COOPERATION.  THUS, EVEN IF I DID NOT CONSIDER THE FOURTH AMENDMENT TO
REQUIRE AFFIRMANCE OF THE DECISIONS OF THE COURT OF APPEALS, I WOULD
NEVERTHELESS FIND IT EXTREMELY DIFFICULT TO ACCEPT A REVERSAL OF THOSE
DECISIONS IN THE FACE OF WHAT SEEMS TO ME THE PROPER CONSTRUCTION OF
THE FIFTH AMENDMENT PRIVILEGE. 

        II 

THE COURT CONCLUDES THAT THE EXEMPLARS SOUGHT FROM THE RESPONDENTS
ARE NOT PROTECTED BY THE FOURTH AMENDMENT BECAUSE RESPONDENT HAVE
SURRENDERED THEIR EXPECTATION OF PRIVACY WITH RESPECT TO VOICE AND
HANDWRITING BY KNOWINGLY EXPOSING THESE TO THE PUBLIC, SEE KATZ V.
UNITED STATES, 389 U.S. 347, 351 (1967).  BUT, EVEN ACCEPTING THIS
CONCLUSION, IT DOES NOT FOLLOW THAT THE INVESTIGATORY SEIZURES OF
RESPONDENTS, ACCOMPLISHED THROUGH THE USE OF SUBPOENAS ORDERING THEM TO
APPEAR BEFORE THE GRAND JURY-- AND THEREBY NECESSARILY INTERFERING WITH
THEIR PERSONAL LIBERTY-- ARE OUTSIDE THE PROTECTION OF THE FOURTH
AMENDMENT.  TO THE MAJORITY, THOUGH, "(IT IS CLEAR THAT A SUBPOENA TO
APPEAR BEFORE A GRAND JURY IS NOT A 'SEIZURE' IN THE FOURTH AMENDMENT
SENSE, EVEN THOUGH THAT SUMMONS MAY BE INCONVENIENT OR BURDENSOME." 
ANTE, AT 9.  WITH DUE RESPECT, I FIND NOTHING "CLEAR" ABOUT SO SWEEPING
AN ASSERTION. 

THERE CAN BE NO QUESTION THAT INVESTIGATORY SEIZURES EFFECTED BY THE
POLICE ARE SUBJECT TO THE CONSTRAINTS OF THE FOURTH AND FOURTEENTH
AMENDMENTS.  IN DAVIS V. MISSISSIPPI, 394 U.S. 721, 727 (1969), THE
COURT OBSERVED THAT ONLY THE TERM BEFORE, IN TERRY V. OHIO, 392 U.S. 1,
19 (1968), IT HAD REJECTED "THE NOTIONS THAT THE FOURTH AMENDMENT DOES
NOT COME INTO PLAY AT ALL AS A LIMITATION UPON POLICE CONDUCT IF THE
OFFICERS STOP SHORT OF SOMETHING CALLED A 'TECHNICAL ARREST' OR A 'FULL
BLOWN SEARCH.'"  AS A RESULT, THE COURT HELD IN DAVIS THAT
INVESTIGATORY SEIZURES FOR THE PURPOSE OF OBTAINING FINGERPRINTS ARE
SUBJECT TO THE FOURTH AMENDMENT EVEN THOUGH FINGERPRINTS THEMSELVES ARE
NOT PROTECTED BY THAT AMENDMENT.  /3/  THE COURT NOW SEEMS TO
DISTINGUISH DAVIS FROM THE PRESENT CASES, IN PART, ON THE GROUND THAT
IN DAVIS THE AUTHORITIES ENGAGED IN A LAWLESS DRAGNET OF A LARGE NUMBER
OF NEGRO YOUTHS.  CERTAINLY, THE PECULIARLY OFFENSIVE EXERCISE OF
INVESTIGATORY POWERS IN DAVIS HEIGHTENED THE COURT'S SENSITIVELY TO THE
DANGERS INHERENT IN MISSISSIPPI'S ARGUMENT THAT THE FOURTH AMENDMENT
WAS NOT APPLICABLE TO INVESTIGATORY SEIZURES.  BUT THE PRESENCE OF A
DRAGNET WAS NOT THE CONSTITUTIONAL DETERMINANT THERE; RATHER, IT WAS
POLICE INTERFERENCE WITH THE PETITIONER'S OWN LIBERTY THAT BROUGHT THE
FOURTH AND FOURTEENTH AMENDMENTS INTO PLAY, AS SHOULD BE EVIDENT FROM
THE COURT'S SUBSTANTIAL RELIANCE ON TERRY, WHICH INVOLVED ON DRAGNET. 

LIKE DAVIS, THE PRESENT CASES INVOLVE OFFICIAL INVESTIGATORY
SEIZURES THAT INTERFERE WITH PERSONAL LIBERTY.  THE COURT CONSIDERS
DISPOSITIVE, HOWEVER, THE FACT THAT THE SEIZURES WERE EFFECTED BY THE
GRAND JURY, RATHER THAN THE POLICE.  I CANNOT AGREE. 

FIRST, IN HALE V. HENKEL, 201 U.S. 43, 76 (1906), THE COURT HELD
THAT A SUBPOENA DUCES TECUM ORDERING "THE PRODUCTION OF BOOKS AND
PAPERS (BEFORE A GRAND JURY) MAY CONSTITUTE AN UNREASONABLE SEARCH AND
SEIZURE WITHIN THE FOURTH AMENDMENT," AND ON THE PARTICULAR FACTS OF
THE CASE, IT CONCLUDED THAT THE SUBPOENA WAS "FAR TOO SWEEPING IN ITS
TERMS TO BE REGARDED AS REASONABLE."  CONSIDERED ALONE, HALE WOULD
CERTAINLY SEEM TO CARRY A STRONG IMPLICATION THAT A SUBPOENA COMPELLING
AN INDIVIDUAL'S PERSONAL APPEARANCE BEFORE A GRAND JURY, LIKE A
SUBPOENA ORDERING THE PRODUCTION OF PRIVATE PAPERS, IS SUBJECT TO THE
FOURTH AMENDMENT STANDARD OF REASONABLENESS.  THE PROTECTION OF THE
FOURTH AMENDMENT IS NOT, AFTER ALL, LIMITED TO PERSONAL "PAPERS," BUT
EXTENDS ALSO TO "PERSONS," "HOUSES," AND "EFFECTS."  IT WOULD SEEM A
STRANGE HIERARCHY OF CONSTITUTIONAL VALUES THAT WOULD AFFORD PAPERS
MORE PROTECTION FROM ARBITRARY GOVERNMENTAL INTRUSION THAN PEOPLE. 

THE COURT, HOWEVER, OFFERS TWO INTERRELATED JUSTIFICATIONS FOR
EXCEPTING GRAND JURY SUBPOENA DIRECTED AT "PERSONS," RATHER THAN
"PAPERS," FROM THE CONSTRAINTS OF THE FOURTH AMENDMENT.  THESE ARE A
"HISTORICALLY GROUNDED OBLIGATION OF EVERY PERSON TO APPEAR AND GIVE
HIS EVIDENCE BEFORE THE GRAND JURY," ANTE, AT 9-10, AND THE RELATIVE
UNINTRUSIVENESS OF THE GRAND JURY SUBPOENA ON AN INDIVIDUAL'S LIBERTY. 

IN MY VIEW, THE COURT MAKES MORE OF HISTORY THAN IS JUSTIFIED.  THE
COURT TREATS THE "HISTORICALLY GROUNDED OBLIGATION" WHICH IT NOW
DISCERNS AS EXTENDING TO ALL "EVIDENCE," WHATEVER ITS CHARACTER.  YET,
SO FAR AS I AM AWARE, THE OBLIGATION "TO APPEAR AND GIVE EVIDENCE"  HAS
HERETOFORE BEEN APPLIED BY THIS COURT ONLY IN THE CONTEXT OF
TESTIMONIAL EVIDENCE, EITHER ORAL OR DOCUMENTARY.  CERTAINLY THE
DECISIONS RELIED UPON BY THE COURT, DESPITE SOME DICTA, HAVE NOT
RECOGNIZED AN OBLIGATION OF A BROADER SWEEP. 

BLAIR V. UNITED STATES, 250 U.S. 273, 281 (1919), INDICATED UPON
COURT OR GRAND JURY IN ORDER TO TESTIFY ARE PUBLIC DUTIES WHICH EVERY
PERSON . . . IS BOUND TO PERFORM UPON BEING PROPERLY SUMMONED . . . . "
SIMILARLY, JUST LAST TERM, THE COURT REAFFIRMED ONLY THAT "(THE POWER
OF GOVERNMENT TO COMPEL PERSONS TO TESTIFY IN COURT OR BEFORE GRAND
JURIES AND OTHER GOVERNMENTAL AGENCIES IS FIRMLY ESTABLISHED IN ANGLO
AMERICAN JURISPRUDENCE"-- NOTHING MORE.  KASTIGAR V. UNITED STATES, 406
U.S. 441, 443 (1971).  AND, MR. CHIEF JUSTICE HUGHES DESCRIBED "ONE OF
THE DUTIES WHICH THE CITIZEN OWES TO HIS GOVERNMENT"  TO BE THAT OF
"ATTENDING ITS COURTS AND GIVING HIS TESTIMONY WHENEVER HE IS PROPERLY
SUMMONED.  . . . "  BLACKMER V. UNITED STATES, 284 U.S. 421, 438
(1932).  IN SHORT, HISTORY, AT LEAST INSOFAR AS HERETOFORE REFLECTED IN
THIS COURT'S CASES, DOES NOT NECESSARILY ESTABLISH AN OBLIGATION TO
APPEAR BEFORE A GRAND JURY FOR OTHER THAN TESTIMONIAL PURPOSES.  SEE
BRANZBURG V. HAYES, 408 U.S. 665 (1972); ULLMANN V. UNITED STATES, 350
U.S. 422, 439 N. 15 (1956); PIEMONTE V. UNITED STATES, 367 U.S. 556,
559 N. 2 (1961); WILSON V. UNITED STATES, 221 U.S. 361, 372 (1911);
HALE V. HENKEL, 201 U.S.,AT 65.  SEE ALSO UNITED STATES V. BRYAN, 339
U.S. 323, 331 (1950); BROWN V. WALKER, 161 U.S. 591, 600 (1896);
GARLAND V. TORRE, 259 F.2D 545, 549 (CA2), CERT. DENIED, 358 U.S. 910
(1958). 

IN THE PRESENT CASES-- AS THE COURT ITSELF ARGUES IN ITS DISCUSSION
OF THE FIFTH AMENDMENT PRIVILEGE-- IT WAS NOT TESTIMONY THAT THE GRAND
JURIES SOUGHT FROM RESPONDENTS, BUT PHYSICAL EVIDENCE.  THE COURT
GLOSSES OVER THIS IMPORTANT DISTINCTION FROM ITS PRIOR DECISIONS,
HOWEVER, BY ARTIFICIALLY BIFURCATING ITS ANALYSIS OF WHAT IS TAKING
PLACE IN THESE CASES-- THAT IS, BY EFFECTIVELY TREATING WHAT IS DONE
WITH INDIVIDUALS ONCE THEY ARE BEFORE THE GRAND JURY AS IRRELEVANT IN
DETERMINING WHAT SAFEGUARDS ARE TO GOVERN THE PROCEDURES BY WHICH THEY
ARE INITIALLY COMPELLED TO APPEAR.  NONETHELESS, THE FACT REMAINS THAT
THE HISTORIC EXCEPTION TO WHICH THE COURT RESORTS IS NOT NECESSARILY AS
BROAD AS THE CONTEXT IN WHICH IT IS NOW EMPLOYED.  HENCE, I BELIEVE
THAT THE QUESTION WE MUST CONSIDER IS WHETHER AN EXTENSION OF THAT
EXCEPTION IS WARRANTED, AND IF SO, UNDER WHAT CONDITIONS.     IN
APPROACHING THESE QUESTIONS, WE MUST KEEP IN MIND THAT "(THIS COURT HAS
CONSISTENTLY ASSERTED THAT THE RIGHTS OF PRIVACY AND PERSONAL SECURITY
PROTECTED BY THE FOURTH AMENDMENT ' . . . ARE TO BE REGARDED AS OF THE
VERY ESSENCE OF CONSTITUTIONAL LIBERTY.  . . . '"  HARRIS V. UNITED
STATES, 331 U.S. 145, 150 (1947).  AS A RULE, THE AMENDMENT STANDS AS
AN ESSENTIAL BULWARK AGAINST ARBITRARY AND UNREASONABLE GOVERNMENTAL
INTRUSION-- WHATEVER ITS FORM, WHATEVER ITS PURPOSE, SEE, E.G., CAMARA
V. MUNICIPAL COURT, 387 U.S. 523 (1967)-- UPON THE PRIVACY AND LIBERTY
OF THE INDIVIDUAL, SEE, E.G., TERRY V. OHIO, 392 U.S.,AT 9; JONES V.
UNITED STATES, 362 U.S. 257, 261 (1960).  GIVEN THE CENTRAL ROLE OF THE
FOURTH AMENDMENT IN OUR SCHEME OF CONSTITUTIONAL LIBERTY, WE SHOULD NOT
CASUALLY ASSUME THAT GOVERNMENTAL ACTION WHICH MAY RESULT IN
INTERFERENCE WITH INDIVIDUAL LIBERTY IS EXCEPTED FROM ITS
REQUIREMENTS.  CF. COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 455 (1971);
KATZ V. UNITED STATES, 389 U.S.,AT 357; CAMARA V. MUNICIPAL COURT,
SUPRA, AT 528-529.  THE REASON FOR ANY EXCEPTION TO THE COVERAGE OF THE
AMENDMENT MUST BE FULLY UNDERSTOOD AND THE LIMITS OF THE EXCEPTION
SHOULD BE DEFINED ACCORDINGLY.  TO DO OTHERWISE WOULD CREATE A DANGER
OF TURNING THE EXCEPTION INTO THE RULE AND LEAD TO THE "IMPAIRMENT OF
THE RIGHTS FOR THE PROTECTION OF WHICH (THE AMENDMENT) WAS ADOPTED," GO
BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344, 357 (1931); CF. GRAU
V. UNITED STATES, 287 U.S. 124, 128 (1932). 

THE COURT SEEMS TO REASON THAT THE EXCEPTION TO THE FOURTH AMENDMENT
FOR GRAND JURY SUBPOENAS DIRECTED AT PERSONS IS JUSTIFIED BY THE
RELATIVE UNINTRUSIVENESS OF THE GRAND JURY PROCESS ON AN INDIVIDUAL'S
LIBERTY.  THE COURT, ADOPTING CHIEF JUDGE FRIENDLY'S ANALYSIS IN UNITED
STATES V. DOE (SCHWARTZ), 457 F.2D 895, 898 (CA2 1972), SUGGESTS THAT
ATTESTS OR EVEN INVESTIGATORY "STOPS" ARE INIMICAL TO PERSONAL LIBERTY
BECAUSE THEY MAY INVOLVE THE USE OF FORCE; THEY MAY BE CARRIED OUT IN
DEMEANING CIRCUMSTANCES; AND AT LEAST AN ARREST MAY YIELD THE SOCIAL
STIGMA OF A RECORD.  BY CONTRAST, WE ARE TOLD, A GRAND JURY SUBPOENA IS
A SIMPLE LEGAL PROCESS THAT IS SERVED IN AN UNOFFENSIVE MANNER; IT
RESULTS IN NO STIGMA; AND A CONVENIENT TIME FOR APPEARANCE MAY ALWAYS
BY ARRANGED.  THE COURT WOULD HAVE US BELIEVE, IN SHORT, THAT, UNLIKE
AN ARREST OR AN INVESTIGATORY "STOP," A GRAND JURY SUBPOENA ENTAILS
LITTLE MORE INCONVENIENCE THAN A VISIT TO AN OLD FRIEND.  COMMON SENSE
AND PRACTICAL EXPERIENCE INDICATE OTHERWISE. 

IT MAY BE THAT SERVICE OF A GRAND JURY SUBPOENA DOES NOT INVOLVE THE
SAME POTENTIAL FOR MOMENTARY EMBARRASSMENT AS DOES AN ARREST OR
INVESTIGATORY "STOP."  /4/  BUT THIS DIFFERENCE SEEMS INCONSEQUENTIAL
IN COMPARISON TO THE SUBSTANTIAL STIGMA THAT-- CONTRARY TO THE COURT'S
ASSERTION-- MAY RESULT FROM A GRAND JURY APPEARANCE AS WELL AS FROM AN
ARREST OR INVESTIGATORY SEIZURE.  PUBLIC KNOWLEDGE THAT A MAN HAS BEEN
SUMMONED BY A FEDERAL GRAND JURY INVESTIGATING, FOR INSTANCE, ORGANIZED
CRIMINAL ACTIVITY CAN MEAN LOSS OF FRIENDS, IRREPARABLE INJURY TO
BUSINESS, AND TREMENDOUS PRESSURES ON ONE'S FAMILY LIFE.  WHATEVER NICE
LEGAL DISTINCTIONS MAY BE DRAWN BETWEEN POLICE AND PROSECUTOR, ON THE
ONE HAND, AND THE GRAND JURY, ON THE OTHER, THE PUBLIC OFTEN TREATS AN
APPEARANCE BEFORE A GRAND JURY AS TANTAMOUNT TO A VISIT TO THE STATION
HOUSE.  INDEED, THE FORMER IS FREQUENTLY MORE DAMAGING THAN THE LATTER,
FOR A GRAND JURY APPEARANCE HAS AN AIR OF FAR GREATER GRAVITY THAN A
BRIEF VISIT "DOWNTOWN" FOR A "TALK."  THE FOURTH AMENDMENT WAS PLACED
IN OUR BILL OF RIGHTS TO PROTECT THE INDIVIDUAL CITIZEN FROM SUCH
POTENTIALLY DISRUPTIVE GOVERNMENTAL INTRUSION INTO HIS PRIVATE LIFE
UNLESS CONDUCTED REASONABLY AND WITH SUFFICIENT CAUSE. 

NOR DO I BELIEVE THAT THE CONSTITUTIONAL PROBLEMS INHERENT IN SUCH
GOVERNMENTAL INTERFERENCE WITH AN INDIVIDUAL'S PERSON ARE SUBSTANTIALLY
ALLEVIATED BECAUSE ONE MAY SEEK TO APPEAR AT A "CONVENIENT TIME."  IN
DAVIS V. MISSISSIPPI, 394 U.S.,AT 727, IT WAS RECOGNIZED THAT AN
INVESTIGATORY DETENTION EFFECTED BY THE POLICE "NEED NOT COME
UNEXPECTEDLY OR AT AN INCONVENIENT TIME."  BUT THIS FACT DID NOT
SUGGEST TO THE COURT THAT THE FOURTH AMENDMENT WAS INAPPLICABLE; IT WAS
CONSIDERED TO AFFECT, AT MOST, THE TYPE OF SHOWING A STATE WOULD HAVE
TO MAKE TO JUSTIFY CONSTITUTIONALLY SUCH A DETENTION.  IBID.  NO MATTER
HOW CONSIDERATE A GRAND JURY MAY BE IN ARRANGING FOR AN INDIVIDUAL'S
APPEARANCE, THE BASIC FACT REMAINS THAT HIS LIBERTY HAS BEEN OFFICIALLY
RESTRAINED FOR SOME PERIOD OF TIME.  IN TERMS OF ITS EFFECT ON THE
INDIVIDUAL, THIS RESTRAINT DOES NOT DIFFER MEANINGFULLY FROM THE
RESTRAINT IMPOSED ON A SUSPECT COMPELLED TO VISIT THE POLICE STATION
HOUSE.  THUS, THE NATURE OF THE INTRUSION ON PERSONAL LIBERTY CAUSED BY
A GRAND JURY SUBPOENA CANNOT, WITHOUT MORE, BE CONSIDERED SUFFICIENT
BASIS FOR DENYING RESPONDENTS THE PROTECTION OF THE FOURTH AMENDMENT. 

OF COURSE, THE FOURTH AMENDMENT DOES NOT BAR ALL OFFICIAL SEIZURES
OF THE PERSON, BUT ONLY THOSE THAT ARE UNREASONABLE AND ARE WITHOUT
SUFFICIENT CAUSE.  WITH THIS IN MIND, IT IS POSSIBLE, AT LEAST, TO
EXPLAIN, IF NOT JUSTIFY, THE FAILURE TO APPLY THE PROTECTION OF THE
FOURTH AMENDMENT TO GRAND JURY SUBPOENAS REQUIRING INDIVIDUALS TO
APPEAR AND TESTIFY.  THUS, WHILE IT IS TRUE THAT WE HAVE TRADITIONALLY
GIVEN THE GRAND JURY BROAD INVESTIGATORY POWERS, PARTICULARLY IN TERMS
OF COMPELLING THE APPEARANCE OF PERSONS BEFORE IT, SEE, E.G., BRANZBURG
V. HAYES, 408 U.S., AT 688, 701-702; BLAIR V. UNITED STATES, 250 U.S.,
AT 282, IT MUST BE UNDERSTOOD THAT WE HAVE DONE SO IN HEAVY RELIANCE ON
CERTAIN ESSENTIAL ASSUMPTIONS. 

CERTAINLY THE MOST CELEBRATED FUNCTION OF THE GRAND JURY IS TO STAND
BETWEEN THE GOVERNMENT AND THE CITIZEN AND THUS TO PROTECT THE LATTER
FROM HARASSMENT AND UNFOUNDED PROSECUTION.  SEE, E.G., WOOD V. GEORGIA,
370 U.S. 375, 390 (1962); HOFFMAN V. UNITED STATES, 341 U.S. 479, 485
(1951); EX PARTE BAIN, 121 U.S. 1, 11 (1887).  THE GRAND JURY DOES NOT
SHED THOSE CHARACTERISTICS THAT GIVE IT INSULATING QUALITIES WHEN IT
ACTS IN ITS INVESTIGATIVE CAPACITY.  PROPERLY FUNCTIONING, THE GRAND
JURY IS TO BE THE SERVANT OF NEITHER THE GOVERNMENT NOR THE COURTS, BUT
OF THE PEOPLE.  HALE V. HENKEL, 201 U.S.,AT 61.  AS SUCH, WE ASSUME
THAT IT COMES TO ITS TASK WITHOUT BIAS OR SELF-INTEREST.  UNLIKE THE
PROSECUTOR OR POLICEMAN, IT HAS NO ELECTION TO WIN OR EXECUTIVE
APPOINTMENT TO KEEP.  THE ANTICIPATED NEUTRALITY OF THE GRAND JURY,
EVEN WHEN ACTING IN ITS INVESTIGATIVE CAPACITY, MAY PERHAPS BE RELIED
UPON TO PREVENT UNWARRANTED INTERFERENCE WITH THE LIVES OF PRIVATE
CITIZENS AND TO ENSURE THAT THE GRAND JURY'S SUBPOENA POWERS OVER THE
PERSON ARE EXERCISED IN ONLY A REASONABLE FASHION.  UNDER SUCH
CIRCUMSTANCES, IT MAY BE JUSTIFIED TO GIVE THE GRAND JURY BROAD
PERSONAL SUBPOENA POWERS THAT ARE OUTSIDE THE PURVIEW OF THE FOURTH
AMENDMENT, FOR-- IN CONTRAST TO THE POLICE-- IT IS NOT LIKELY IT WILL
ABUSE THOSE POWERS.  /5/  CF. COSTELLO V. UNITED STATES, 350 U.S. 359,
362 (1956); STIRONE V. UNITED STATES, 361 U.S. 212, 218 (1960). 

WHATEVER THE PRESENT DAY VALIDITY OF THE HISTORICAL ASSUMPTION OF
NEUTRALITY THAT UNDERLIES THE GRAND JURY PROCESS, /6/ IT MUST AT LEAST
BE RECOGNIZED THAT IF A GRAND JURY IS DEPRIVED OF THE INDEPENDENCE
ESSENTIAL TO THE ASSUMPTION OF NEUTRALITY-- IF IT EFFECTIVELY
SURRENDERS THAT INDEPENDENCE TO A PROSECUTOR-- THE DANGERS OF EXCESSIVE
AND UNREASONABLE OFFICIAL INTERFERENCE WITH PERSONAL LIBERTY ARE
EXACTLY THOSE THAT THE FOURTH AMENDMENT WAS INTENDED TO PREVENT.  SO
LONG AS THE GRAND JURY CARRIES ON ITS INVESTIGATORY ACTIVITIES ONLY
THROUGH THE MECHANISM OF TESTIMONIAL INQUIRIES, THE DANGER OF SUCH
OFFICIAL USURPATION OF THE GRAND JURY PROCESS MAY NOT BE UNREASONABLY
GREAT.  INDIVIDUALS CALLED TO TESTIFY BEFORE THE GRAND JURY WILL HAVE
AVAILABLE THEIR FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION. 
THUS, AT LEAST INSOFAR AS INCRIMINATING INFORMATION IS SOUGHT DIRECTLY
FROM A PARTICULAR CRIMINAL SUSPECT, /7/  THE GRAND JURY PROCESS WOULD
NOT APPEAR TO OFFER LAW ENFORCEMENT OFFICIALS A SUBSTANTIAL ADVANTAGE
OVER ORDINARY INVESTIGATIVE TECHNIQUES. 

BUT WHEN WE MOVE BEYOND THE REALM OF A GRAND JURY INVESTIGATION
LIMITED TO TESTIMONIAL INQUIRIES, AS THE COURT DOES TODAY, THE DANGER
INCREASES THAT LAW ENFORCEMENT OFFICIALS MAY SEEK TO USURP THE GRAND
JURY PROCESS FOR THE PURPOSE OF SECURING INCRIMINATING EVIDENCE FROM A
PARTICULAR SUSPECT THROUGH THE SIMPLE EXPEDIENT OF A SUBPOENA.  IN VIEW
OF THE COURT'S FOURTH AMENDMENT ANALYSIS OF THE RESPONDENTS'
EXPECTATIONS OF PRIVACY CONCERNING THEIR HANDWRITING AND VOICE
EXEMPLARS, AND IN VIEW OF THE TESTIMONIAL EVIDENCE LIMITATION ON THE
REACH OF THE FIFTH AMENDMENT PRIVILEGE, THERE IS ESSENTIALLY NO
OBJECTION TO BE MADE ONCE A SUSPECT IS BEFORE THE GRAND JURY AND
EXEMPLARS ARE REQUESTED.  THUS, IF THE GRAND JURY MAY SUMMON CRIMINAL
SUSPECTS FOR SUCH PURPOSES WITHOUT COMPLYING WITH THE FOURTH AMENDMENT,
IT WILL OBVIOUSLY PRESENT AN ATTRACTIVE INVESTIGATIVE TOOL TO
PROSECUTOR AND POLICE.  FOR WHAT LAW ENFORCEMENT OFFICERS COULD NOT
ACCOMPLISH DIRECTLY THEMSELVES AFTER OUR DECISION IN DAVIS V.
MISSISSIPPI, THEY MAY NOW ACCOMPLISH INDIRECTLY THROUGH THE GRAND JURY
PROCESS. 

THUS, THE COURT'S DECISIONS TODAY CAN SERVE ONLY TO ENCOURAGE
PROSECUTORIAL EXPLOITATION OF THE GRAND JURY PROCESS, AT THE EXPENSE OF
BOTH INDIVIDUAL LIBERTY AND THE TRADITIONAL NEUTRALITY OF THE GRAND
JURY.  INDEED, BY HOLDING THAT THE GRAND JURY'S POWER TO SUBPOENA THESE
RESPONDENTS FOR THE PURPOSE OF OBTAINING EXEMPLARS IS COMPLETELY
OUTSIDE THE PURVIEW OF THE FOURTH AMENDMENT, THE COURT FAILS TO
APPRECIATE THE ESSENTIAL DIFFERENCE BETWEEN REAL AND TESTIMONIAL
EVIDENCE IN THE CONTEXT OF THESE CASES, AND THEREBY HASTENS THE
REDUCTION OF THE GRAND JURY INTO SIMPLY ANOTHER INVESTIGATIVE DEVICE OF
LAW ENFORCEMENT OFFICIALS.  BY CONTRAST, THE COURT OF APPEALS, IN
PROPER RECOGNITION OF THESE DANGERS, IMPOSED NARROW LIMITATIONS ON THE
SUBPOENA POWER OF THE GRAND JURY THAT ARE NECESSARY TO GUARD AGAINST
UNREASONABLE OFFICIAL INTERFERENCE WITH INDIVIDUAL LIBERTY BUT THAT
WOULD NOT IMPAIR SIGNIFICANTLY THE TRADITIONAL INVESTIGATORY POWERS OF
THAT BODY. 

THE COURT OF APPEALS IN MARA, NO. 71-850, DID NOT IMPOSE A
REQUIREMENT THAT THE GOVERNMENT ESTABLISH PROBABLE CAUSE TO SUPPORT A
GRAND JURY'S REQUEST FOR EXEMPLARS.  IT CORRECTLY RECOGNIZED THAT
"EXAMINATION OF WITNESSES BY A GRAND JURY NEED NOT BE PRECEDED BY A
FORMAL CHARGE AGAINST A PARTICULAR INDIVIDUAL," SINCE THE VERY PURPOSE
OF THE GRAND JURY PROCESS IS TO ASCERTAIN PROBABLE CAUSE, SEE, E.G.,
BLAIR V. UNITED STATES, 250 U.S.,AT 282; HENDRICKS V. UNITED STATES,
223 U.S. 178, 184 (1912).  454 F.2D 580, 584.  CONSISTENT WITH THIS
COURT'S DECISION IN HALE V. HENKEL, THE COURT OF APPEALS RULED ONLY
THAT THE REQUEST FOR PHYSICAL EVIDENCE SUCH AS EXEMPLARS SHOULD BE
SUBJECT TO A SHOWING OF REASONABLENESS.  SEE 201 U.S.,AT 76.  THIS
"REASONABLENESS" REQUIREMENT HAS PREVIOUSLY BEEN EXPLAINED BY THIS
COURT, ALBEIT IN A SOMEWHAT DIFFERENT CONTEXT, TO REQUIRE A SHOWING BY
THE GOVERNMENT THAT:  (1) "THE INVESTIGATION IS AUTHORIZED BY
CONGRESS"; (2) THE INVESTIGATION "IS FOR A PURPOSE CONGRESS CAN ORDER";
(3) THE EVIDENCE SOUGHT IS "RELEVANT"; AND (4) THE REQUEST IS
"ADEQUATE, BUT NOT EXCESSIVE, FOR THE PURPOSES OF THE RELEVANT
INQUIRY."  SEE OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186,
209 (1946).  THIS WAS THE INTERPRETATION OF THE "REASONABLENESS"
REQUIREMENT PROPERLY ADOPTED BY THE COURT OF APPEALS.  SEE 454 F.2D, AT
584-585.  AND, IN ELABORATING ON THE REQUIREMENT THAT THE REQUEST NOT
BE "EXCESSIVE," IT ADDED THAT THE GOVERNMENT WOULD BEAR THE BURDEN OF
SHOWING THAT IT WAS NOT CONDUCTING "A GENERAL FISHING EXPEDITION UNDER
GRAND JURY SPONSORSHIP."  ID., AT 585. 

THESE ARE NOT BURDENSOME LIMITATIONS TO IMPOSE ON THE GRAND JURY
WHEN IT SEEKS TO SECURE PHYSICAL EVIDENCE, SUCH AS EXEMPLARS, THAT HAS
TRADITIONALLY BEEN GATHERED DIRECTLY BY LAW ENFORCEMENT OFFICIALS.  THE
ESSENCE OF THE REQUIREMENT WOULD BE NOTHING MORE THAN A SHOWING THAT
THE EVIDENCE SOUGHT IS RELEVANT TO THE PURPOSE OF THE INVESTIGATION AND
THAT THE PARTICULAR GRAND JURY IS NOT THE SUBJECT OF PROSECUTORIAL
ABUSE-- A SHOWING THAT THE GOVERNMENT SHOULD HAVE LITTLE DIFFICULTY
MAKING, UNLESS IT IS IN FACT ACTING IMPROPERLY.  NOR WOULD THE
REQUIREMENT INTERFERE WITH THE POWER OF THE GRAND JURY TO CALL
WITNESSES BEFORE IT, TO TAKE THEIR TESTIMONY, AND TO ASCERTAIN THEIR
KNOWLEDGE CONCERNING CRIMINAL ACTIVITY.  IT WOULD ONLY DISCOURAGE
PROSECUTORIAL ABUSE OF THE GRAND JURY PROCESS.  /8/  THE
"REASONABLENESS" REQUIREMENT WOULD DO NO MORE IN THE CONTEXT OF THESE
CASES THAN THE CONSTITUTION COMPELS-- PROTECT THE CITIZEN FROM
UNREASONABLE AND ARBITRARY GOVERNMENTAL INTERFERENCE, AND ENSURE THAT
THE BROAD SUBPOENA POWERS OF THE GRAND JURY WHICH THE COURT NOW
RECOGNIZES ARE NOT TURNED INTO A TOOL OF PROSECUTORIAL OPPRESSION. 
/9/ 

IN DIONISIO, NO. 71-229, THE GOVERNMENT HAS NEVER MADE ANY SHOWING
THAT WOULD ESTABLISH THE "REASONABLENESS" OF THE GRAND JURY'S REQUEST
FOR A VOICE SAMPLE.  IN MARA, NO. 71-850, THE GOVERNMENT SUBMITTED AN
AFFIDAVIT TO THE DISTRICT COURT TO JUSTIFY THE REQUEST FOR THE
HANDWRITING AND PRINTING EXEMPLARS.  BUT IT WAS NOT SUFFICIENT TO MEET
THE REQUIREMENTS SET DOWN BY THE COURT OF APPEALS.  SEE 454 F.2D, AT
584-585.  MOREOVER, THE AFFIDAVIT IN MARA WAS REVIEWED BY THE DISTRICT
COURT IN CAMERA IN THE ABSENCE OF RESPONDENT MARA AND HIS COUNSEL. 
SUCH EX PARTE PROCEDURES SHOULD BE THE EXCEPTION, NOT THE RULE. 

"ADVERSARY PROCEEDINGS WILL NOT MAGICALLY ELIMINATE ALL ERROR,

  BUT THEY WILL SUBSTANTIALLY REDUCE ITS INCIDENCE BY GUARDING

  AGAINST THE POSSIBILITY THAT THE TRIAL JUDGE, THROUGH LACK OF

  TIME OR UNFAMILIARITY WITH THE INFORMATION CONTAINED IN AND

  SUGGESTED BY THE MATERIALS, WILL BE UNABLE TO PROVIDE THE

  SCRUTINY WHICH THE FOURTH AMENDMENT . . . DEMANDS."  /10/

  ALDERMAN V. UNITED STATES, 394 U.S. 165, 184 (1969). 

SEE ALSO DENNIS V. UNITED STATES, 384 U.S. 855, 873-875 (1966). 
CONSEQUENTLY, I AGREE WITH THE COURT OF APPEALS THAT THE REASONABLENESS
OF A REQUEST FOR AN EXEMPLAR SHOULD BE TESTED IN AN ADVERSARY CONTEXT. 
/11/ 

I WOULD, THEREFORE, AFFIRM THE COURT OF APPEALS' DECISIONS REVERSING
THE JUDGMENTS OF CONTEMPT AGAINST RESPONDENTS AND ORDER THE CASES
REMANDED TO THE DISTRICT COURT TO ALLOW THE GOVERNMENT AN OPPORTUNITY
TO MAKE THE REQUISITE SHOWING OF "REASONABLENESS" IN EACH CASE.  TO DO
LESS IS TO INVITE THE VERY SORT OF UNREASONABLE GOVERNMENTAL INTRUSION
ON INDIVIDUAL LIBERTY THAT THE FOURTH AMENDMENT WAS INTENDED TO
PREVENT. 

/1/  THIS OPINION APPLIES ALSO TO NO. 71-229, UNITED STATES V.
DIONISIO, ANTE, P. 1. 

/1A/  BEFORE THIS COURT, RESPONDENT MARA HAS ARGUED ONLY THAT THE
GOVERNMENT MAY BE SEEKING THE HANDWRITING EXEMPLARS TO OBTAIN NOT
MERELY IDENTIFICATION EVIDENCE, BUT INCRIMINATING "TESTIMONIAL"
EVIDENCE.  I CERTAINLY AGREE WITH THE COURT THAT IF RESPONDENT'S
CONTENTION PROVES CORRECT, HE WILL BE ENTITLED TO ASSERT HIS FIFTH
AMENDMENT PRIVILEGE. 

/2/  THIS IS NOT TO SAY THAT, APART FROM THE FIFTH AMENDMENT
PRIVILEGE, THERE MIGHT NOT BE SERIOUS DUE PROCESS PROBLEMS WITH
PHYSICAL COMPULSION APPLIED TO AN INDIVIDUAL'S PERSON TO SECURE
IDENTIFYING EVIDENCE AGAINST HIS WILL.  CF. ROCHIN V. CALIFORNIA, 342
U.S. 165 (1952).  BUT CF. BREITHAUPT V. ABRAM, 352 U.S. 432 (1957). 

/3/  WE LEFT OPEN THE FURTHER QUESTION WHETHER SUCH AN INVESTIGATORY
SEIZURE MIGHT, UNDER CERTAIN CIRCUMSTANCES, BE MADE ON INFORMATION
INSUFFICIENT TO ESTABLISH PROBABLE CAUSE TO ARREST.  SEE 394 U.S.,AT
727-728. 

/4/  BUT CF. DAVIS V. MISSISSIPPI, 394 U.S. 721, 727 (1969). 

/5/  WHEN THE GRAND JURY DOES OVERSTEP ITS POWER AND ACTS
MALICIOUSLY, COURTS ARE CERTAINLY NOT TOTALLY WITHOUT POWER TO CONTROL
IT.  SEE N. 9, INFRA. 

/6/  INDEED, THE COURT TODAY ACKNOWLEDGES THAT "(THE GRAND JURY MAY
NOT ALWAYS SERVE ITS HISTORIC ROLE AS A PROTECTIVE BULWARK."  ANTE, AT
17. 

/7/  OF COURSE, THE GRAND JURY DOES PROVIDE AN IMPORTANT MECHANISM
FOR INVESTIGATING POSSIBLE CRIMINAL ACTIVITY THROUGH WITNESSES WHO MAY
HAVE FIRST-HAND KNOWLEDGE OF THE ACTIVITIES OF OTHERS.  BUT, GIVEN THE
FIFTH AMENDMENT PRIVILEGE, IT DOES NOT FOLLOW THAT THE GRAND JURY IS A
USEFUL MECHANISM FOR SECURING INCRIMINATING TESTIMONY FROM THE SUSPECT
HIMSELF. 

/8/  IT IS, OF COURSE, TRUE THAT A SUSPECT MAY BE CALLED FOR THE
DUAL PURPOSES OF TESTIFYING AND OBTAINING PHYSICAL EVIDENCE. 
OBVIOUSLY, HIS LIBERTY WOULD BE INTERFERED WITH MERELY AS A RESULT OF
APPEARING AND TESTIFYING, A SITUATION IN WHICH THE FOURTH AMENDMENT HAS
NOT HERETOFORE BEEN APPLIED.  BUT IT DOES NOT FOLLOW THAT THE
APPLICATION OF THE FOURTH AMENDMENT IS INAPPROPRIATE WHEN A SUSPECT IS
SUBPOENAED FOR THESE DUAL PURPOSES.  THE APPLICATION OF THE FOURTH
AMENDMENT IS NECESSARY TO DISCOURAGE UNREASONABLE USE OF THE GRAND JURY
PROCESS BY LAW ENFORCEMENT OFFICIALS.  WHILE THE FIFTH AMENDMENT
PRIVILEGE AT LEAST CONTRIBUTES TO THAT GOAL IN THE CONTEXT OF A
SUBPOENA INTENDED TO SECURE BOTH TESTIMONIAL AND PHYSICAL EVIDENCE, IT
IS ESSENTIAL ALSO TO APPLY THE FOURTH AMENDMENT WHEN THE SUSPECT IS
REQUESTED TO GIVE PHYSICAL EVIDENCE.  OTHERWISE, SUBPOENAING SUSPECTS
FOR THE PURPOSE OF TESTIFYING WOULD PROVIDE A SIMPLE GUISE BY WHICH LAW
ENFORCEMENT OFFICIALS MIGHT SECURE PHYSICAL EVIDENCE WITHOUT COMPLYING
WITH THE FOURTH AMENDMENT, AND THUS THE DETERRENT EFFECT ON SUCH
OFFICIALS SOUGHT BY APPLYING THE AMENDMENT TO GRAND JURY SUBPOENAS
SEEKING PHYSICAL EVIDENCE WOULD BE LOST. 

/9/  IT MAY BE THAT MY DIFFERENCES WITH THE COURT ARE NOT AS GREAT
AS MAY FIRST APPEAR, FOR DESPITE THE COURT'S REJECTION OF THE
APPLICABILITY OF THE FOURTH AMENDMENT TO GRAND JURY SUBPOENAS DIRECTED
AT "PERSONS," IT CLEARLY RECOGNIZES THAT ABUSE OF THE GRAND JURY
PROCESS IS NOT OUTSIDE A COURT'S CONTROL.  SEE ANTE, AT 11-12.  BESIDES
THE FOURTH AMENDMENT, THE FIRST AMENDMENT AND BOTH THE DUE PROCESS
CLAUSE AND THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION
CONTAINED IN THE FIFTH AMENDMENT ERECT SUBSTANTIAL BARRIERS TO "THE
TRANSFORMATION OF THE GRAND JURY INTO AN INSTRUMENT OF OPPRESSION." 
ANTE, AT 12.  SEE ALSO HALE V. HENKEL, 201 U.S.,AT 65; UNITED STATES V.
DOE (SCHWARTZ), 457 F.2D 895, 899. 

/10/  AS THE COURT OF APPEALS OBSERVED: 

"(DIFFICULTIES OF LOCATING A SUSPECT OR POSSESSOR OF EVIDENCE, THE
PROBLEMS OF APPREHENSION, THE DESTRUCTIBILITY OF EVIDENCE, THE NEED FOR
PROMPTNESS TO PROTECT THE PUBLIC AGAINST VIOLENCE AND TO PREVENT
REPETITION OF CRIMINAL CONDUCT NECESSITATE THE EX PARTE NATURE OF THE
WARRANT ISSUANCE PROCEEDING."  454 F.2D 580, 583. 

BUT THESE CONSIDERATIONS DO NOT APPLY IN THE CONTEXT OF THE GRAND
JURY REQUEST FOR EXEMPLARS.  NEVERTHELESS, THE GOVERNMENT CONTENDS THAT
THE TRADITIONAL SECRECY OF THE GRAND JURY PROCESS DICTATES THAT ANY
PRELIMINARY SHOWING REQUIRED OF IT SHOULD BE MADE IN AN EX PARTE, IN
CAMERA PROCEEDING.  HOWEVER, THE INTERESTS SERVED BY THE SECRECY OF THE
GRAND JURY PROCESS CAN BE ADEQUATELY PROTECTED WITHOUT SUCH A DRASTIC
MEASURE.  ID., AT 584. 

/11/  THE COURT SUGGESTS THAT ANY SORT OF SHOWING THAT MIGHT BE
REQUIRED OF THE GOVERNMENT IN CASES SUCH AS THESE "WOULD SADDLE A GRAND
JURY WITH MINITRIALS" AND "WOULD ASSUREDLY IMPEDE ITS INVESTIGATION AND
FRUSTRATE THE PUBLIC'S INTEREST IN THE FAIR AND EXPEDITIOUS
ADMINISTRATION OF THE CRIMINAL LAWS."  ANTE, AT 17.  BUT CONSTITUTIONAL
RIGHTS CANNOT BE SACRIFICED SIMPLY FOR EXPEDITION AND SIMPLICITY IN THE
ADMINISTRATION OF THE CRIMINAL LAWS.  MOREOVER, A REQUIREMENT THAT THE
GOVERNMENT ESTABLISH THE "REASONABLENESS" OF THE REQUEST FOR AN
EXEMPLAR WOULD HARDLY BE SO BURDENSOME AS THE COURT SUGGESTS.  AS
MATTERS STAND, IF THE SUSPECT RESISTS THE REQUEST, THE GOVERNMENT MUST
SEEK A JUDICIAL ORDER DIRECTING THAT HE COMPLY WITH THE REQUEST.  THUS,
A FORMAL JUDICIAL PROCEEDING IS ALREADY NECESSARY.  THE QUESTION
WHETHER THE REQUEST IS "REASONABLE" WOULD SIMPLY BE ONE FURTHER MATTER
TO CONSIDER IN SUCH A PROCEEDING. 

PHILIP A. LACOVARA ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
PETERSEN, WM. BRADFORD REYNOLDS, BEATRICE ROSENBERG, AND SIDNEY M.
GLAZER. 

ANGELO RUGGIERO ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

PHYLIS SKLOOT BAMBERGER ARGUED THE CAUSE FOR THE FEDERAL COMMUNITY
DEFENDER ORGANIZATION OF THE LEGAL AID SOCIETY OF NEW YORK AS AMICUS
CURIAE URGING AFFIRMANCE.  WITH HER ON THE BRIEF WAS WILLIAM H.
HELLERSTEIN. 
..END :


















UNITED STATES V. GLAXO GROUP LTD., 410 U.S. 52 


       UNITED STATES V. GLAXO GROUP LTD. ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

      DISTRICT OF COLUMBIA

        NO. 71-666.  ARGUED NOVEMBER 9, 1972-- DECIDED JANUARY 22,

           1973 


APPELLEES, IMPERIAL CHEMICAL INDUSTRIES LTD. AND GLAXO GROUP LTD.,
BRITISH DRUG COMPANIES ENGAGED IN THE MANUFACTURE AND SALE OF THE
FUNGICIDE GRISEOFULVIN, POOLED THEIR BULK- AND DOSAGE-FORM PATENTS AND
SUBLICENSED CERTAIN FIRMS IN THE UNITED STATES TO PRACTICE THE
PATENTS.  THE POOLING AGREEMENT CONTAINED A COVENANT TO RESTRICT BULK
SALES AND RESALES, AND SUBLICENSING AGREEMENTS PROHIBITED BULK RESALES
TO THIRD PARTIES WITHOUT THE LICENSORS' PRIOR CONSENT.  THE UNITED
STATES FILED A CIVIL ANTITRUST SUIT AGAINST APPELLEES TO RESTRAIN
ALLEGED VIOLATIONS OF SEC. 1 OF THE SHERMAN ACT, AND THE GOVERNMENT
ALSO ATTACKED THE VALIDITY OF THE DOSAGE-FORM PATENTS, AND SOUGHT THE
RELIEF OF MANDATORY, NONDISCRIMINATORY BULK-FORM SALES AND REASONABLE
ROYALTY LICENSING OF THE PATENTS.  THE DISTRICT COURT HELD THAT BULK
SALES RESTRICTIONS WERE PER SE VIOLATIONS OF SEC. 1 AND ENJOINED THEIR
FUTURE USE, BUT REFUSED THE GOVERNMENT'S REQUEST TO ORDER MANDATORY,
NONDISCRIMINATORY SALES OF THE BULK FORM OF THE DRUG AND REASONABLE
ROYALTY LICENSING OF APPELLEES' PATENTS AS PART OF THE RELIEF.  THE
COURT ALSO REFUSED TO ENTERTAIN THE GOVERNMENT'S CLAIM OF PATENT
INVALIDITY, SINCE APPELLEES DID NOT RELY ON THEIR PATENTS IN DEFENSE OF
THE ANTITRUST CLAIMS.  HELD: 

1.  WHERE PATENTS ARE DIRECTLY INVOLVED IN ANTITRUST VIOLATIONS AND
THE GOVERNMENT PRESENTS A SUBSTANTIAL CASE FOR RELIEF IN THE FORM OF
RESTRICTIONS ON THE PATENTS, THE GOVERNMENT MAY CHALLENGE THE VALIDITY
OF THE PATENTS REGARDLESS OF WHETHER THE OWNER RELIES ON THE PATENTS IN
DEFENDING THE ANTITRUST ACTION.  PP. 57-60. 

2.  IN ORDER TO "PRY OPEN TO COMPETITION" THE MARKET CLOSED BY THE
ANTITRUST VIOLATIONS, AN ORDER FOR MANDATORY, NONDISCRIMINATORY SALES
TO ALL BONA FIDE APPLICANTS IS APPROPRIATE RELIEF, AND WHERE, AS IN
THIS CASE, THE MANUFACTURER MAY CHOOSE NOT TO MAKE BULK-FORM SALES, AND
THE LICENSEES ARE NOT BOUND BY THE COURT'S ORDER FOR MANDATORY SALES,
FURTHER RELIEF IN THE FORM OF REASONABLE-ROYALTY LICENSING OF THE
PATENTS IS ALSO PROPER.  PP. 60-64. 

328 F.SUPP.  709, REVERSED; SEE ALSO 302 F.SUPP.  1. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, BRENNAN, MARSHALL, AND POWELL, JJ., JOINED. 
REHNQUIST, J., FILED A DISSENTING OPINION IN WHICH STEWART AND
BLACKMUN, JJ., JOINED, POST, P. 64. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES APPEALS PURSUANT TO SEC. 2 OF THE EXPEDITING ACT,
AS AMENDED, 62 STAT. 989, 15 U.S.C. 29, FROM PORTIONS OF A DECISION BY
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN A
CIVIL ANTITRUST SUIT.  WE ARE ASKED TO DECIDE WHETHER THE GOVERNMENT
MAY CHALLENGE THE VALIDITY OF PATENTS INVOLVED IN ILLEGAL RESTRAINTS OF
TRADE, WHEN THE DEFENDANTS DO NOT RELY UPON THE PATENTS IN DEFENSE OF
THEIR CONDUCT, AND WHETHER THE DISTRICT COURT ERRED IN REFUSING CERTAIN
RELIEF REQUESTED BY THE GOVERNMENT. 

        I 

APPELLEES IMPERIAL CHEMICAL INDUSTRIES LTD. (ICI) AND GLAXO GROUP
LTD. (GLAXO), ARE BRITISH DRUG COMPANIES ENGAGED IN THE MANUFACTURE AND
SALE OF GRISEOFULVIN.  GRISEOFULVIN IS AN ANTIBIOTIC COMPOUND THAT MAY
BE CUT WITH INERT INGREDIENTS AND ADMINISTERED ORALLY IN THE FORM OF
CAPSULES OR TABLETS TO HUMANS OR ANIMALS FOR THE TREATMENT OF EXTERNAL
FUNGUS INFECTIONS.  THERE IS NO SUBSTITUTE FOR DOSAGE-FORM GRISEOFULVIN
IN COMBATING CERTAIN INFECTIONS.  GRISEOFULVIN ITSELF IS UNPATENTED AND
UNPATENTABLE.  ICI OWNS VARIOUS PATENTS ON THE DOSAGE FORM OF THE
DRUG.  /1/  GLAXO OWNS VARIOUS PATENTS ON A METHOD FOR MANUFACTURING
THE DRUG IN BULK FORM, AS WELL AS A PATENT ON THE FINELY GROUND,
"MICROSIZE"  DOSAGE FORM OF THE DRUG.  /2/ 

ON APRIL 26, 1960, ICI AND GLAXO ENTERED INTO A FORMAL AGREEMENT
POOLING THEIR GRISEOFULVIN PATENTS.  AT THE TIME OF THE EXECUTION OF
THE AGREEMENT, ICI HELD PATENTS ON THE DOSAGE FORM OF THE DRUG, AND
GLAXO HELD BULK-FORM MANUFACTURING PATENTS.  PURSUANT TO THE AGREEMENT,
ICI ACQUIRED THE RIGHT TO MANUFACTURE BULK-FORM GRISEOFULVIN UNDER
GLAXO'S PATENTS, TO SELL BULK-FORM GRISEOFULVIN, AND TO SUBLICENSE
UNDER GLAXO'S PATENTS.  GLAXO WAS AUTHORIZED TO MANUFACTURE DOSAGE-FORM
GRISEOFULVIN AND TO SUBLICENSE UNDER ICI'S PATENTS.  AS PART OF THE
AGREEMENT, ICI UNDERTOOK "NOT TO SELL AND TO USE ITS BEST ENDEAVORS TO
PREVENT ITS SUBSIDIARIES AND ASSOCIATES FROM SELLING ANY GRISEOFULVIN
IN BULK TO ANY INDEPENDENT THIRD PARTY WITHOUT GLAXO'S EXPRESS CONSENT
IN WRITING." 

SUBSEQUENT TO THE POOLING OF THE GRISEOFULVIN PATENTS, ICI GRANTED A
SUBLICENSE TO AMERICAN HOME PRODUCTS CORP. (AMHO), ICI'S EXCLUSIVE
DISTRIBUTOR IN THE UNITED STATES.  ICI AGREED TO SELL BULK-FORM
GRISEOFULVIN TO AMHO.  AMHO WAS AUTHORIZED TO PROCESS THE BULK FORM
INTO DOSAGE FORM AND TO SELL THE DRUG IN THAT FORM.  WITH RESPECT TO
BULK SALES THE AGREEMENT STATED:  "YOU (AMHO) WILL NOT, WITHOUT FIRST
OBTAINING OUR (ICI'S) CONSENT, RESELL, OR REDELIVER IN BULK SUPPLIES OF
GRISEOFULVIN."  GLAXO HAD PREVIOUSLY ENTERED INTO SIMILAR SUBLICENSING
AGREEMENTS WITH TWO UNITED STATES COMPANIES-- SCHERING CORP. (SCHERING)
AND JOHNSON & JOHNSON (J & J).  THE AGREEMENTS CONTAINED A COVENANT ON
THE PART OF THE LICENSES "NOT TO SELL OR TO PERMIT ITS AFFILIATES TO
SELL ANY GRISEOFULVIN IN BULK TO ANY INDEPENDENT THIRD PARTY WITHOUT
GLAXO'S EXPRESS CONSENT IN WRITING."  /3/ 

ON MARCH 4, 1968, THE UNITED STATES FILED A CIVIL ANTITRUST SUIT
AGAINST ICI AND GLAXO, PURSUANT TO SEC. 4 OF THE SHERMAN ACT, 15 U.S.C.
4, TO RESTRAIN ALLEGED VIOLATIONS OF SEC. 1 OF THE ACT, 26 STAT. 209,
AS AMENDED, 15 U.S.C. 1.  THE GOVERNMENT CHARGED THAT THE RESTRICTIONS
ON THE SALE AND RESALE OF BULK-FORM GRISEOFULVIN, CONTAINED IN THE 1960
ICI-GLAXO AGREEMENT AND THE VARIOUS SUBLICENSING AGREEMENTS, WERE
UNREASONABLE RESTRAINTS OF TRADE.  THE GOVERNMENT ALSO CHALLENGED THE
VALIDITY OF ICI'S DOSAGE-FORM PATENT.  /4/ 

THE DISTRICT COURT, CITING THIS COURT'S DECISION IN UNITED STATES V.
ARNOLD, SCHWINN & CO., 388 U.S. 365 (1967), HELD THAT THE BULK-SALES
RESTRICTIONS CONTAINED IN THE ICI-AMHO AGREEMENT WERE PER SE VIOLATIONS
OF SEC. 1 OF THE SHERMAN ACT.  /5/  302 F.SUPP.  1 (DC 1969).  BECAUSE
ICI HAD FILED AN AFFIDAVIT DISCLAIMING ANY DESIRE TO RELY ON ITS PATENT
IN DEFENSE OF THE ANTITRUST CLAIMS, THE DISTRICT COURT STRUCK THE
CLAIMS OF PATENT INVALIDITY FROM THE GOVERNMENT'S COMPLAINT, RULING
THAT THE GOVERNMENT COULD NOT CHALLENGE ICI'S PATENT WHEN IT WAS NOT
RELIED UPON AS A DEFENSE TO THE ANTITRUST CLAIMS.  THE DISTRICT COURT
ALSO DENIED THE GOVERNMENT'S MOTION TO AMEND ITS COMPLAINT TO ALLEGE
THE INVALIDITY OF GLAXO'S PATENT ON "MICROSIZE" GRISEOFULVIN.  /6/ 

SUBSEQUENTLY, IN SEPARATE, UNREPORTED ORDERS, THE BULK-SALES
RESTRICTIONS IN THE GLAXO-J & J, THE GLAXO-SCHERING, AND THE GLAXO-ICI
AGREEMENTS WERE FOUND TO BE PER SE VIOLATIONS OF SEC. 1.  THE COURT
ENJOINED FUTURE USE OF THE BULK-SALES RESTRICTIONS, BUT REFUSED THE
GOVERNMENT'S REQUEST TO ORDER MANDATORY, NONDISCRIMINATORY SALES OF THE
BULK FORM OF THE DRUG AND REASONABLE-ROYALTY LICENSING OF THE ICI AND
GLAXO PATENTS AS PART OF THE RELIEF.  328 F.SUPP.  709 (D.C. 1971). 
THE UNITED STATES TOOK A DIRECT APPEAL UNDER THE EXPEDITING ACT AND WE
NOTED PROBABLE JURISDICTION.  405 U.S. 914. 

II 

THE MAJOR ISSUE BEFORE US IS WHETHER THE DISTRICT COURT ERRED IN
RULING THAT THE UNITED STATES COULD CHALLENGE THE VALIDITY OF A PATENT
IN THE COURSE OF PROSECUTING AN ANTITRUST ACTION WHEN THE PATENT IS
RELIED ON AS A DEFENSE, WHICH WAS NOT THE CASE HERE.  WE AGREE WITH THE
UNITED STATES THAT THIS WAS AN UNDULY NARROW VIEW OF THE CONTROLLING
CASES. 

UNITED STATES V. BELL TELEPHONE CO., 167 U.S. 224 (1897),
ACKNOWLEDGED PRIOR DECISIONS PERMITTING THE UNITED STATES TO SUE TO SET
ASIDE A PATENT FOR FRAUD OR DECEIT ASSOCIATED WITH ITS ISSUANCE, BUT
HELD THAT THE FEDERAL COURTS SHOULD NOT ENTERTAIN SUITS BY THE
GOVERNMENT "TO SET ASIDE A PATENT FOR AN INVENTION ON THE MERE GROUND
OF ERROR OF JUDGMENT ON THE PART OF THE PATENT OFFICIALS," AT LEAST
WHERE THE UNITED STATES "HAS NO PROPRIETARY OR PECUNIARY (INTEREST) IN
THE SETTING ASIDE OF THE PATENT (AND) IS NOT SEEKING TO DISCHARGE ITS
OBLIGATIONS TO THE PUBLIC.  . . . "  167 U.S.,AT 269, 265. 
SUBSEQUENTLY, UNITED STATES V. UNITED STATES GYPSUM CO., 333 U.S. 364
(1948), REFERRED TO BELL TELEPHONE AS HOLDING THAT THE UNITED STATES
WAS "WITHOUT STANDING TO BRING A SUIT IN EQUITY TO CANCEL A PATENT ON
THE GROUND OF INVALIDITY," ID., AT 387, BUT WENT ON TO DECLARE THAT, TO
VINDICATE THE PUBLIC INTEREST IN ENJOINING VIOLATIONS OF THE SHERMAN
ACT, THE UNITED STATES IS ENTITLED TO ATTACK THE VALIDITY OF PATENTS
RELIED UPON TO JUSTIFY ANTICOMPETITIVE CONDUCT OTHERWISE VIOLATIVE OF
THE LAW.  THE COURT NOTED THAT, BECAUSE OF THE PUBLIC INTEREST IN FREE
COMPETITION, IT HAD REPEATEDLY HELD THAT THE PRIVATE LICENSEE-PLAINTIFF
IN AN ANTITRUST SUIT MAY ATTACK THE VALIDITY OF THE PATENT UNDER WHICH
HE IS LICENSED EVEN THOUGH HE HAS AGREED NOT TO DO SO IN HIS LICENSE. 
THE AUTHORITIES FOR THIS PROPOSITION WERE SOLA ELECTRIC CO. V.
JEFFERSON ELECTRIC CO., 317 U.S. 173 (1942); EDWARD KATZINGER CO. V.
CHICAGO METALLIC MFG. CO., 329 U.S. 394 (1947); AND MACGREGOR V.
WESTINGHOUSE ELECTRIC & MFG. CO., 329 U.S. 402 (1947).  THE ESSENCE OF
THOSE CASES IS BEST REVEALED IN KATZINGER WHERE THE COURT HELD THAT,
ALTHOUGH A PATENT LICENSEE (UNDER THE THEN-CONTROLLING LAW) WAS
NORMALLY FORECLOSED FROM QUESTIONING THE VALIDITY OF A PATENT HE IS
PRIVILEGED TO USE, THE BAR IS REMOVED WHEN HE ALLEGES CONDUCT BY THE
PATENTEE THAT WOULD BE ILLEGAL UNDER THE ANTITRUST LAWS, ABSENT THE
PATENT.  THE LICENSEE WAS FREE TO CHALLENGE THE PATENT IN THESE
CIRCUMSTANCES BECAUSE THE "FEDERAL COURTS MUST, IN THE PUBLIC INTEREST,
KEEP THE WAY OPEN FOR THE CHALLENGE OF PATENTS WHICH ARE UTILIZED FOR
PRICE-FIXING.  . . . "  ID., AT 399.  KATZINGER AND GYPSUM WERE MUCH IN
THE TRADITION OF POPE MFG. CO. V. GORMULLY, 144 U.S. 224, 234 (1892):
"IT IS AS IMPORTANT TO THE PUBLIC THAT COMPETITION SHOULD NOT BE
REPRESSED BY WORTHLESS PATENTS, AS THAT THE PATENTEE OF A REALLY
VALUABLE INVENTION SHOULD BE PROTECTED IN HIS MONOPOLY . . . ," A VIEW
MOST RECENTLY ECHOED IN LEAR, INC. V. ADKINS, 395 U.S. 653, 670
(1969). 

WE THINK THAT THE PRINCIPLE OF THESE CASES IS SUFFICIENT AUTHORITY
FOR PERMITTING THE GOVERNMENT TO RAISE AND LITIGATE THE VALIDITY OF THE
ICI-GLAXO PATENTS IN THIS ANTITRUST CASE.  ACCORDING TO THE RECORD,
APPELLEES HAD ISSUED LICENSES UNDER THEIR PATENTS THAT UNREASONABLY
RESTRAINED TRADE BY PROHIBITING THE LICENSEES FROM SELLING OR RESELLING
BULK-FORM GRISEOFULVIN AND HAD INCLUDED IN THE POOLING AGREEMENT A
COVENANT TO IMPOSE SUCH RESTRICTIONS ON LICENSEES.  THESE CHARGES WERE
SUSTAINED, THE COURT CONCLUDING THAT THE COVENANT AND THE PATENT
LICENSE PROVISIONS WERE PER SE RESTRAINTS OF TRADE IN THE GRISEOFULVIN
PRODUCT MARKET. 

THE DISTRICT COURT WAS THEN FACED WITH THE GOVERNMENT'S ATTACK ON
THE PERTINENT PATENTS AS WELL AS ITS DEMAND FOR MANDATORY SALES AND
REASONABLE-ROYALTY LICENSING, THE LATTER BEING WELL-ESTABLISHED FORMS
OF RELIEF WHEN NECESSARY TO AN EFFECTIVE REMEDY, PARTICULARLY WHERE
PATENTS HAVE PROVIDED THE LEVERAGE FOR OR HAVE CONTRIBUTED TO THE
ANTITRUST VIOLATION ADJUDICATED.  SEE FOR EXAMPLE, BESSER MFG. CO. V.
UNITED STATES, 343 U.S. 444 (1952); UNITED STATES V. UNITED STATES
GYPSUM CO., 340 U.S. 76 (1950); INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392 (1947); HARTFORD-EMPIRE CO. V. UNITED STATES, 323
U.S. 386 (1945).  APPELLEES OPPOSED MANDATORY SALES AND COMPULSORY
LICENSING, ASSERTING THAT THE GOVERNMENT WOULD "DENY DEFENDANTS AN
ESSENTIAL INGREDIENT OF THEIR RIGHTS UNDER THE PATENT SYSTEM," AND THAT
THERE WAS NO WARRANT FOR "SUCH A DRASTIC FORFEITURE OF THEIR RIGHTS." 
IN THIS CONTEXT, WHERE THE COURT WOULD NECESSARILY BE DEALING WITH THE
FUTURE ENFORCEABILITY OF THE PATENTS, WE THINK IT WOULD HAVE BEEN
APPROPRIATE, IF IT APPEARED THAT THE GOVERNMENT'S CLAIMS FOR FURTHER
RELIEF WERE SUBSTANTIAL, FOR THE COURT TO HAVE ALSO ENTERTAINED THE
GOVERNMENT'S CHALLENGE TO THE VALIDITY OF THOSE PATENTS. 

IN ARRIVING AT THIS CONCLUSION, WE DO NOT RECOGNIZE UNLIMITED
AUTHORITY IN THE GOVERNMENT TO ATTACK A PATENT BY BASING AN ANTITRUST
CLAIM ON THE SIMPLE ASSERTION THAT THE PATENT IS INVALID.  CF. WALKER
PROCESS EQUIPMENT V. FOOD MACHINERY & CHEMICAL CORP., 382 U.S. 172
(1965).  NOR DO WE INVEST THE ATTORNEY GENERAL WITH A ROVING COMMISSION
TO QUESTION THE VALIDITY OF ANY PATENT LURKING IN THE BACKGROUND OF AN
ANTITRUST CASE.  BUT THE DISTRICT COURTS HAVE JURISDICTION TO ENTERTAIN
AND DECIDE ANTITRUST SUITS BROUGHT BY THE GOVERNMENT AND, WHERE A
VIOLATION IS FOUND, TO FASHION EFFECTIVE RELIEF.  THIS OFTEN INVOLVES A
SUBSTANTIAL QUESTION AS TO WHETHER IT IS NECESSARY TO LIMIT THE RIGHTS
NORMALLY VESTED IN THE OWNERS OF PATENTS, WHICH IN ITSELF CAN BE A
COMPLEX AND DIFFICULT ISSUE.  THE LITIGATION WOULD USUALLY PROCEED ON
THE ASSUMPTION THAT VALID PATENTS ARE INVOLVED, BUT IF THIS BASIC
ASSUMPTION IS ITSELF CHALLENGED, WE PERCEIVE NO GOOD REASON, EITHER IN
TERMS OF THE PATENT SYSTEM OR OF JUDICIAL ADMINISTRATION, FOR REFUSING
TO HEAR AND DECIDE IT. 

THE DISTRICT COURT, THEREFORE, ERRED IN STRIKING THE ALLEGATIONS OF
THE GOVERNMENT'S COMPLAINT DEALING WITH THE PATENT VALIDITY ISSUE AND
IN REFUSING TO PERMIT THE GOVERNMENT TO AMEND ITS COMPLAINT WITH
RESPECT TO THIS ISSUE.  ON REMAND, THE DISTRICT COURT SHOULD CONSIDER
THE VALIDITY OF THE ICI DOSAGE-FORM PATENT AND THE GLAXO MICROSIZE
PATENT. 

        III 

THE QUESTION REMAINS WHETHER THE GOVERNMENT'S CASE FOR ADDITIONAL
RELIEF WAS SUFFICIENT TO PROVIDE THE APPROPRIATE PREDICATE FOR A
CONSIDERATION OF ITS CHALLENGE TO THE VALIDITY OF THESE PATENTS.  FOR
THIS PURPOSE, AS WE HAVE SAID, ITS CASE NEED NOT BE CONCLUSIVE, BUT
ONLY SUBSTANTIAL ENOUGH TO WARRANT THE COURT'S UNDERTAKING WHAT COULD
BE A LARGE INQUIRY, ONE WHICH COULD EASILY OBVIATE OTHER QUESTIONS OF
REMEDY IF THE PATENT IS FOUND INVALID AND WHICH, IF THE PATENT IS NOT
INVALIDATED, WOULD LEND SUBSTANCE TO A DEFENDANT'S CLAIM THAT A VALID
PATENT SHOULD NOT BE LIMITED, ABSENT THE NECESSITY TO PROVIDE EFFECTIVE
RELIEF FOR AN ANTITRUST VIOLATION TO WHICH THE PATENT HAS CONTRIBUTED. 
HERE, WE THINK NOT ONLY THAT THE UNITED STATES PRESENTED A SUBSTANTIAL
CASE FOR ADDITIONAL RELIEF, BUT THAT IT WAS SUFFICIENTLY CONVINCING
THAT THE DISTRICT COURT, WHOLLY ASIDE FROM THE QUESTION OF PATENT
VALIDITY, SHOULD HAVE RULED FAVORABLY ON THE DEMAND FOR MANDATORY SALES
AND COMPULSORY LICENSING. 

IN THE FIRST PLACE, IT IS CLEAR FROM THE EVIDENCE THAT THE ICI
DOSAGE-FORM PATENT, ALONG WITH OTHER ICI AND GLAXO PATENTS, GAVE THE
APPELLEES THE ECONOMIC LEVERAGE WITH WHICH TO INSIST UPON AND ENFORCE
THE BULK-SALES RESTRICTIONS IMPOSED ON THE LICENSEES.  /7/  GLAXO
APPARENTLY CONSIDERED THE BULK-SALES RESTRICTION TO BE A PREREQUISITE
TO THE GRANTING OF A SUBLICENSE, FOR IT REJECTED A DRAFT OF THE ICI
AMHO AGREEMENT BECAUSE, AMONG OTHER THINGS, IT WOULD HAVE PERMITTED
AMHO TO SELL GRISEOFULVIN IN BULK FORM.  THERE ARE INDICATIONS, ALSO,
THAT GLAXO REFUSED A SUBLICENSE TO OTHERS THAN SCHERING AND J & J
BECAUSE OF FEARS THAT THE COMPANIES WOULD SELL IN BULK FORM OR PRESSURE
GLAXO TO ALLOW SUCH SALES.  THE SOURCE OF THE PATENT-POOLING AGREEMENT
PURSUANT TO WHICH SUCH LICENSES WERE PERMITTED AND WHICH CONTAINED THE
BULK-SALES RESTRICTION WAS SIMPLE:  GLAXO NEEDED THE ICI DOSAGE-FORM
PATENT TO ASSURE ITS LICENSEES THE RIGHT TO USE THE PATENT AND SELL IN
DOSAGE FORM.  POOLING PERMITTED ICI TO ENGAGE IN BULK MANUFACTURE, AND,
IN EXCHANGE, ICI IMPOSED THE BULK-SALES RESTRICTIONS UPON ITS
LICENSEES.  THERE CAN BE LITTLE QUESTION THAT THE PATENTS INVOLVED HERE
WERE INTIMATELY ASSOCIATED WITH AND CONTRIBUTED TO EFFECTUATING THE
CONDUCT THAT THE DISTRICT COURT HELD TO BE A PER SE RESTRAINT OF TRADE
IN GRISEOFULVIN.     SECONDLY, WE THINK THAT ICI AND GLAXO SHOULD HAVE
BEEN REQUIRED TO SELL BULK-FORM GRISEOFULVIN ON REASONABLE AND
NONDISCRIMINATORY TERMS AND TO GRANT PATENT LICENSES AT REASONABLE
ROYALTY RATES TO ALL BONA FIDE APPLICANTS IN ORDER TO "PRY OPEN TO
COMPETITION" THE GRISEOFULVIN MARKET THAT "HAS BEEN CLOSED BY
DEFENDANTS' ILLEGAL RESTRAINTS."  INTERNATIONAL SALT CO., 332 U.S.,AT
401.     THE UNITED STATES GRISEOFULVIN MARKET CONSISTS OF THREE
WHOLESALERS, ALL LICENSEES OF APPELLEES, THAT ACCOUNT FOR NEARLY 100%
OF UNITED STATES SALES TOTALING APPROXIMATELY EIGHT MILLION DOLLARS. 
GLAXO AND ICI HAVE NEVER SOLD IN BULK TO OTHERS THAN THE LICENSEES AND
HAVE PROHIBITED BULK SALES AND RESALES BY THE LICENSEES.  IN PRACTICE,
THE LICENSEES HAVE NOT MANUFACTURED GRISEOFULVIN UNDER THE BULK-FORM
PATENTS, PREFERRING INSTEAD TO PURCHASE IN BULK FORM FROM ICI AND
GLAXO.  THE LICENSEES SELL THE DRUG IN DOSAGE AND MICROSIZE FORM TO
RETAIL OUTLETS AT VIRTUALLY IDENTICAL PRICES.  THE EFFECT OF APPELLEES'
REFUSAL TO SELL IN BULK AND PROHIBITION OF SUCH SALES BY THE LICENSEES
HAS BEEN THAT BULK GRISEOFULVIN HAS NOT BEEN AVAILABLE TO ANY BUT
APPELLEES' THREE LICENSEES AND THAT THESE THREE ARE THE ONLY SOURCES OF
DOSAGE-FORM GRISEOFULVIN IN THE UNITED STATES. 

THERE IS LITTLE REASON TO THINK THAT THE APPELLEES OR THEIR
LICENSEES, NOW THAT THE BULK-SALES RESTRICTIONS HAVE BEEN DECLARED
ILLEGAL, WILL BEGIN SELLING IN BULK.  IT IS IN THEIR ECONOMIC SELF
INTEREST TO MAINTAIN CONTROL OF THE BULK FORM OF THE DRUG IN ORDER TO
KEEP THE DOSAGE-FORM, WHOLESALE MARKET COMPETITION-FREE.  BULK SALES
WOULD CREATE NEW COMPETITION AMONG WHOLESALERS, BY ENABLING OTHER
COMPANIES TO CONVERT THE BULK DRUG INTO DOSAGE AND MICROSIZE FORMS AND
SELL TO RETAIL OUTLETS, AND WOULD PRESUMABLY LEAD TO PRICE REDUCTIONS
AS THE RESULT OF NORMAL COMPETITIVE FORCES.  THERE IS, IN FACT,
SUBSTANTIAL EVIDENCE IN THE RECORD TO THE EFFECT THAT OTHER DRUG
COMPANIES WOULD NOT ONLY HAVE ENTERED THE MARKET, HAD THEY BEEN ABLE TO
MAKE BULK PURCHASES, BUT ALSO WOULD HAVE CHALLENGED SUBSTANTIALLY LOWER
WHOLESALE PRICES FOR THE DOSAGE AND MICROSIZE FORMS OF THE DRUG.  ONLY
BY REQUIRING THE APPELLEES TO SELL BULK-FORM GRISEOFULVIN ON
NONDISCRIMINATORY TERMS TO ALL BONA FIDE APPLICANTS WILL THE DOSAGE
FORM, WHOLESALE MARKET BECOME COMPETITIVE. 

RELIEF IN THE FORM OF COMPULSORY SALES MAY NOT, HOWEVER, ALONE
INSURE A COMPETITIVE MARKET.  GLAXO AND ICI COULD CHOOSE TO DISCONTINUE
BULK-FORM MANUFACTURING OR THE SALE OF GRISEOFULVIN IN BULK FORM.  THE
PATENT LICENSEES MIGHT THEN BEGIN TO PRACTICE THE BULK-FORM
MANUFACTURING PATENTS PURSUANT TO THE PATENT LICENSES TO FILL THEIR
NEEDS FOR THE BULK DRUG.  THE LICENSEES, OF COURSE, ARE NOT PARTIES TO
THIS ACTION, AND A MANDATORY-SALES ORDER WOULD NOT AFFECT THEM.  THEY
WOULD NOT BE REQUIRED TO MAKE THE ECONOMICALLY LESS ADVANTAGEOUS BULK
SALES.  THE BULK FORM OF THE DRUG WOULD BE CONTROLLED BY THE LICENSEES,
AND THE APPELLEES, BECAUSE THEY WOULD BE REQUIRED UNDER THE
GOVERNMENT'S PROPOSED RELIEF TO SELL TO ALL APPLICANTS ONLY SO LONG AS
THEY SELL TO ANY UNITED STATES PURCHASERS, COULD EASILY AVOID THE
MANDATORY-SALES REQUIREMENT.  UNLESS OTHER AMERICAN FIRMS ARE LICENSED
TO MANUFACTURE GRISEOFULVIN, COMPETITION IN THE UNITED STATES MARKET
WILL DEPEND ENTIRELY UPON APPELLEES' WILLINGNESS TO CONTINUE TO SUPPLY
THEIR PRESENT LICENSEES WITH THE BULK FORM OF THE DRUG. 

THIS COURT HAS REPEATEDLY RECOGNIZED THAT "(THE FRAMING OF DECREES
SHOULD TAKE PLACE IN THE DISTRICT RATHER THAN IN APPELLATE COURTS" AND
HAS GENERALLY FOLLOWED THE PRINCIPLE THAT DISTRICT COURTS "ARE INVESTED
WITH LARGE DISCRETION TO MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF
THE PARTICULAR CASE."  INTERNATIONAL SALE CO., SUPRA, AT 400-401;
ACCORD, FORD MOTOR CO. V. UNITED STATES, 405 U.S. 562, 573 (1972).  THE
COURT HAS NOT, HOWEVER, TREATED THAT POWER AS ONE OF DISCRETION,
SUBJECT ONLY TO REVERSAL FOR GROSS ABUSE, BUT HAS RECOGNIZED "AN
OBLIGATION TO INTERVENE IN THIS MOST SIGNIFICANT PHASE OF THE CASE"
WHEN NECESSARY TO ASSURE THAT THE RELIEF WILL BE EFFECTIVE.  UNITED
STATES V. UNITED STATES GYPSUM CO., 340 U.S.,AT 89.  ACCORDINGLY, WE
HAVE ORDERED THE AFFIRMATIVE RELIEF THAT THE DISTRICT COURT REFUSED TO
IMPLEMENT.  SEE, E.G., UNITED STATES V. UNITED STATES GYPSUM CO. THE
PURPOSE OF RELIEF IN AN ANTITRUST CASE IS "SO FAR AS PRACTICABLE, (TO)
CURE THE ILL EFFECTS OF THE ILLEGAL CONDUCT, AND ASSURE THE PUBLIC
FREEDOM FROM ITS CONTINUANCE."  ID., AT 88.  MANDATORY SELLING ON
SPECIFIED TERMS AND COMPULSORY PATENT LICENSING AT REASONABLE CHARGES
ARE RECOGNIZED ANTITRUST REMEDIES.  SEE, E.G., BESSER MFG. CO. V.
UNITED STATES, 343 U.S. 444 (1952); INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392 (1947); HARTFORD-EMPIRE CO. V. UNITED STATES, 323
U.S. 386 (1945).  THE DISTRICT COURT SHOULD HAVE ORDERED THOSE REMEDIES
IN THIS CASE. 

TO THE EXTENT INDICATED IN THIS OPINION, THE JUDGMENT OF THE
DISTRICT COURT IS REVERSED. 

        SO ORDERED. 

/1/  SPECIFICALLY AT ISSUE IN THE PRESENT LITIGATION IS U.S. PATENT
NO. 2,900,304, ISSUED AUGUST 18, 1959.  THE PATENT EMBODIES TWO TYPES
OF CLAIMS-- (1) A METHOD OF CURING HUMANS OR ANIMALS OF EXTERNAL FUNGUS
DISEASES BY ADMINISTRATING "AN EFFECTIVE AMOUNT OF GRISEOFULVIN" TO
THEM INTERNALLY AND (2) A CAPSULE, TABLET, OR PILL CONTAINING AN
EFFECTIVE AMOUNT OF GRISEOFULVIN. 

/2/  SPECIFICALLY AT ISSUE IN THE PRESENT LITIGATION IS U.S. PATENT
NO. 3,330,727, ISSUED JULY 11, 1957.  THIS PATENT COVERS THE IMPROVED
(FINELY GROUND OR "MICROSIZE") DOSAGE FORM OF GRISEOFULVIN.  THIS FORM
HAS PROVED MORE EFFECTIVE AND MORE MARKETABLE THAN OTHER DOSAGE FORMS
OF THE DRUG. 

/3/  ALTHOUGH AMHO, SCHERING, AND J & J COULD HAVE MANUFACTURED BULK
FORM GRISEOFULVIN UNDER GLAXO'S PATENTS, IN PRACTICE THEY PURCHASED THE
BULK FORM OF THE DRUG FROM ICI AND GLAXO AND THEMSELVES PERFORMED THE
PROCESSES TO CONVERT THE DRUG TO DOSAGE FORM. 

/4/  SEE, SUPRA, N. 1.  THE GOVERNMENT CONTENDED THAT THE "METHOD"
PORTION OF THE PATENT DID NOT DISCLOSE HOW TO PRACTICE THE INVENTION IN
THAT IT FAILED TO SPECIFY WHAT IS AN "EFFECTIVE AMOUNT" OF THE DRUG. 
SEE 35 U.S.C. 112.  THE GOVERNMENT ALSO ARGUED THAT ICI'S PRODUCT
CLAIMS WERE INVALID BECAUSE THE DOSAGE FORM THAT THEY COVERED DID NOT
SPECIFY AN "EFFECTIVE AMOUNT" OF THE DRUG, DID NOT SPECIFY THE DISEASES
THAT COULD BE CURED, AND CLAIMED A PATENT MONOPOLY OVER A SUBSTANCE
LONG IN THE PUBLIC DOMAIN.  SEE 35 U.S.C. 100 AND 101. 

/5/  THE CASE WAS DECIDED ON THE BASIS OF VARIOUS MOTIONS CONCERNING
THE MERITS AND THE RELIEF.  TESTIMONY WAS NOT RECEIVED; THE FACTS WERE
DEVELOPED IN AFFIDAVITS, EXHIBITS, AND INTERROGATORIES ACCOMPANYING THE
MOTIONS. 

/6/  SEE N. 2.  THE GOVERNMENT HAD SOUGHT TO CHALLENGE THE PATENT ON
THE BASIS THAT THE PATENT PURPORTED TO MONOPOLIZE A PRODUCT LONG IN THE
PUBLIC DOMAIN, ON THE BASIS OF PRIOR DISCLOSURE, AND ON THE BASIS OF
PRIOR PUBLIC USE.  SEE 35 U.S.C. 100, 101, 102(A), 102(B). 

/7/  THE GOVERNMENT ARGUED IN THE DISTRICT COURT: 

"WE SUBMIT THAT (UNITED STATES V.)  GYPSUM (333 U.S. 364 (1948))
SHOULD BE UNDERSTOOD MORE BROADLY TO SUPPORT CHALLENGE TO ANY PATENT
USED BY ANTITRUST DEFENDANTS IN FURTHERANCE OF THEIR ILLEGAL PROGRAM. 
THE IMPORTANCE OF THE IMPERIAL PATENT TO THE DEFENDANTS' SCHEME TO
VIOLATE THE ANTITRUST LAWS IS PLAIN.  IT WAS, ACCORDING TO ICI'S
CONTENTIONS, THE REASON FOR THE PATENT POOL AGREEMENT IN THE FIRST
PLACE; GLAXO'S GRANT OF RIGHTS TO ICI WAS PAID FOR WITH THE IMPERIAL
PATENT.  WITHOUT THE IMPERIAL PATENT THE DEFENDANTS COULD NOT MAINTAIN
THEIR MONOPOLY IN THE UNITED STATES OVER THE DRUG, FOR THEN ANYONE WHO
COULD SECURE BULK FORM GRISEOFULVIN COULD MAKE IT UP INTO PILLS AND
SELL THEM WITHOUT A PATENT TO STOP HIM; BULK FORM GRISEOFULVIN IS, AS
ICI POINTS OUT, UNPATENTED.  THE IMPERIAL PATENT THUS BOLSTERS THE
EFFECTIVENESS OF THE ILLEGAL RESTRAINT ON ALIENATION ICI IMPOSES ON THE
RESALE OF BULK FORM GRISEOFULVIN:  IF A SMALL DRUG COMPANY SOMEHOW
MANAGES TO GET THE UNPATENTED BULK FORM DRUG DESPITE ICI'S RESTRAINT ON
ALIENATION DESIGNED TO PREVENT IT OR ANYONE ELSE FROM DOING SO, THE
DEFENDANTS MAY STILL SUPPRESS THE MANUFACTURE OF THE DRUG BY THREAT OF
PATENT INFRINGEMENT SUIT.  IN THIS CONTEXT, VINDICATION OF THE PUBLIC
INTEREST IN COMPETITION IN UNPATENTABLE GOODS IS DOUBLY IMPORTANT-- FOR
THERE IS A DOUBLE IMPEDIMENT TO COMMERCE-- THE PATENT AND THE
CONSPIRACY." 

THE GOVERNMENT, THROUGHOUT ITS BRIEF IN THIS COURT, EMPHASIZES THE
IMPORTANCE OF THE PATENTS TO THE ANTITRUST VIOLATION. 

"IN CASES LIKE THIS, THE PATENTS INVOLVED GENERALLY ARE OF MAJOR
IMPORTANCE IN FURTHERING THE ALLEGEDLY UNLAWFUL PATENT LICENSING
PRACTICES; THEY GAVE THE DEFENDANTS THE POWER WHICH ENABLES THEM TO
IMPOSE THE RESTRAINTS OF TRADE.  THAT IS THE SITUATION HERE.  THE
PATENTS WERE ESSENTIAL TO THE APPELLEES' SCHEME TO VIOLATE THE
ANTITRUST LAWS." 

MR. JUSTICE REHNQUIST, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
BLACKMUN CONCUR, DISSENTING. 

THE COURT HAS UNDERTAKEN TO SUBSTITUTE ITS JUDGMENT FOR THAT OF
CONGRESS IN THE INITIATION OF NOVEL PROCEDURES FOR THE DETERMINATION OF
PATENT VALIDITY, AND IN SO DOING HAS BLANDLY DISREGARDED THE PROCEDURAL
HISTORY OF THIS CASE. 

I 

THERE IS NEITHER STATUTORY NOR CASE AUTHORITY FOR THE EXISTENCE OF A
GENERAL RIGHT OF EITHER PRIVATE INDIVIDUALS OR THE GOVERNMENT TO
COLLATERALLY CHALLENGE THE VALIDITY OF ISSUED PATENTS.  IN THE PATENT
ACT OF 1790, CONGRESS PROVIDED THAT PRIVATE CITIZENS COULD, UPON MOTION
ALLEGING FRAUDULENT PROCUREMENT, PROMPT A DISTRICT COURT TO ISSUE TO A
PATENTEE AN ORDER TO SHOW CAUSE WHY HIS LETTERS PATENT SHOULD NOT BE
REPEALED.  /1/  A SUBSTANTIALLY IDENTICAL PROVISION WAS CARRIED OVER IN
THE PATENT ACT OF 1793.  /2/  BUT THE PATENT ACT OF 1836 CONTAINED NO
PROVISION FOR SUCH INDIVIDUAL ACTIONS ALTHOUGH IT INCREASED THE NUMBER
OF STATUTORY DEFENSES IN INFRINGEMENT ACTIONS.  /3/  THE EFFECT OF THIS
OMISSION WAS DETERMINED BY MOWRY V. WHITNEY, 14 WALL.  434 (1872), TO
BE THE PRECLUSION OF PRIVATE ACTIONS TO CANCEL PATENTS, EVEN WHEN
FRAUDULENTLY PROCURED. 

AS PART OF THE RATIONALE IN MOWRY, THE COURT REASONED THAT THE
EQUITABLE SUIT FOR CANCELLATION OF A PATENT BECAUSE IT WAS FRAUDULENTLY
PROCURED WAS A SUBSTITUTE FOR THE WRIT OF SCIRE FACIAS AND,
ACCORDINGLY, IT SHOULD HAVE THE SAME LIMITATIONS.  IN DICTUM, THE COURT
STATED:  "THE FRAUD, IF ONE EXISTS, HAS BEEN PRACTICED ON THE
GOVERNMENT, AND AS THE PARTY INJURED, IT IS THE APPROPRIATE PARTY TO
ASSERT THE REMEDY OR SEEK RELIEF."  ID., AT 441.  WHEN THE UNITED
STATES LATER SUED TO SET ASIDE TWO PATENTS ISSUED TO ALEXANDER GRAHAM
BELL SUBSEQUENT TO SEVERAL PURPORTED ACTS OF FRAUD BY HIM ON THE PATENT
OFFICE, THIS COURT RELIED HEAVILY ON THE DICTUM IN MOWRY, SUPRA, IN
RECOGNIZING THE RIGHT OF THE FEDERAL GOVERNMENT TO SUE FOR THE
CANCELLATION OF LETTERS PATENT OBTAINED BY FRAUD: 

"THAT THE GOVERNMENT, AUTHORIZED BOTH BY THE CONSTITUTION AND THE
STATUTES TO BRING SUITS AT LAW AND IN EQUITY, SHOULD FIND IT TO BE ITS
DUTY TO CORRECT THIS EVIL, TO RECALL THESE PATENTS, TO GET A REMEDY FOR
THIS FRAUD, IS SO CLEAR THAT IT NEEDS NO ARGUMENT.  . . . "  UNITED
STATES V. BELL TELEPHONE CO., 128 U.S. 315, 370 (1888) (BILL I). 

THE GOVERNMENT ASSERTS THAT THE BREADTH OF THIS HOLDING WAS
ESTABLISHED IN THE DICTUM IN UNITED STATES V. BELL TELEPHONE CO., 159
U.S. 548 (1895) (BELL II), WHEREIN THE COURT UPHELD ITS APPELLATE
JURISDICTION IN SUCH PATENT CANCELLATION CASES.  THERE, IT WAS STATED: 

     "IN UNITED STATES V. TELEPHONE COMPANY, (128 U.S. 315), IT WAS

  DECIDED THAT WHERE A PATENT FOR A GRANT OF ANY KIND ISSUED BY THE

  UNITED STATES HAS BEEN OBTAINED BY FRAUD, BY MISTAKE OR BY

  ACCIDENT, A SUIT BY THE UNITED STATES AGAINST THE PATENTEE IS THE

  PROPER REMEDY FOR RELIEF, AND THAT IN THIS COUNTRY, WHERE THERE

  IS NO KINGLY PREROGATIVE BUT WHERE PATENTS FOR LAND AND

  INVENTIONS ARE ISSUED BY THE AUTHORITY OF THE GOVERNMENT, AND BY

  OFFICERS APPOINTED FOR THAT PURPOSE WHO MAY HAVE BEEN IMPOSED

  UPON BY FRAUD OR DECEIT, OR MAY HAVE ERRED AS TO THEIR POWER, OR

  MADE MISTAKES IN THE INSTRUMENT ITSELF, THE APPROPRIATE REMEDY IS

  BY PROCEEDINGS BY THE UNITED STATES AGAINST THE PATENTEE."  ID.,

  AT 555. 

BUT IN UNITED STATES V. BELL TELEPHONE CO., 167 U.S. 224 (1897) (BELL
III), THE COURT CHARACTERIZED THE ABOVE-QUOTED LANGUAGE AS A "GENERAL
STATEMENT" OF THE POWER OF THE GOVERNMENT TO MAINTAIN A SUIT AND, AGAIN
IN DICTUM, LIMITED ITS EFFECT, SAYING: 

     "BUT WHILE THERE WAS THUS RIGHTFULLY AFFIRMED THE POWER OF THE

GOVERNMENT TO PROCEED BY SUIT IN EQUITY AGAINST ONE WHO HAD

  WRONGFULLY OBTAINED A PATENT FOR LAND OR FOR AN INVENTION, THERE

  WAS NO ATTEMPT TO DEFINE THE CHARACTER OF THE FRAUD, OR DECEIT OR

  MISTAKE, OR THE EXTENT OF THE ERROR AS TO POWER WHICH MUST BE

  ESTABLISHED BEFORE A DECREE COULD BE ENTERED CANCELLING THE

  PATENT.  IT WAS NOT AFFIRMED THAT PROOF OF ANY FRAUD, OR DECEIT,

  OR THE EXISTENCE OF ANY ERROR ON THE PART OF THE OFFICERS AS TO

  THE EXTENT OF THEIR POWER, OR THAT ANY MISTAKE IN THE INSTRUMENT

  WAS SUFFICIENT TO JUSTIFY A DECREE OF CANCELLATION.  LEAST OF ALL

  WAS IT INTENDED TO BE AFFIRMED THAT THE COURTS OF THE UNITED

  STATES, SITTING AS COURTS OF EQUITY, COULD ENTERTAIN JURISDICTION

  OF A SUIT BY THE UNITED STATES TO SET ASIDE A PATENT FOR AN

  INVENTION ON THE MERE GROUND OF ERROR OF JUDGMENT ON THE PART OF

  THE PATENT OFFICIALS.  THAT WOULD BE AN ATTEMPT ON THE PART OF

  THE COURTS IN COLLATERAL ATTACK TO EXERCISE AN APPELLATE

  JURISDICTION OVER THE DECISIONS OF THE PATENT OFFICE, ALTHOUGH NO

  APPELLEE JURISDICTION HAS BEEN BY THE STATUTES CONFERRED.  . . .
"

 ID., AT 269. 

THE PLAIN IMPORT OF THE BELL CASES IS THAT THE AUTHORITY OF THE
GOVERNMENT TO BRING AN INDEPENDENT ACTION TO CANCEL A PATENT IS
CONFINED TO THE TRADITIONAL EQUITABLE GROUNDS OF FRAUD, MISTAKE, AND
DECEIT.  THE GOVERNMENT MAKES TWO ARGUMENTS TO SUPPORT ITS POSITION
THAT IT SHOULD NOT BE AS LIMITED HERE.  IT CONTENDS THAT SINCE THIS IS
AN ANTITRUST ACTION, ITS RIGHT TO ATTACK THE VALIDITY OF THE PATENT IS
ESTABLISHED BY THE RATIONALE OF UNITED STATES V. UNITED STATES GYPSUM
CO., 333 U.S. 364 (1948), AND IS THEREFORE NOT SUBJECT TO THE
LIMITATIONS OF BELL III.  ALTERNATIVELY, IT ARGUES THAT BELL III HAS
BEEN SO UNDERCUT BY SUBSEQUENT DECISIONS, INCLUDING GYPSUM, THAT IT
SHOULD NO LONGER BE FOLLOWED.     IN GYPSUM CO., SUPRA, THE COURT
STATED IN "DELIBERATE DICTA" THAT THE GOVERNMENT MAY CHALLENGE THE
VALIDITY OF A PATENT WHICH HAS BEEN ASSERTED BY AN ANTITRUST DEFENDANT
TO BE A DEFENSE TO THE GOVERNMENT'S CLAIM OF ANTITRUST VIOLATIONS.  IT
REASONED THAT IN A SUIT TO VINDICATE THE PUBLIC INTEREST BY ENJOINING
VIOLATIONS OF THE SHERMAN ACT, THE UNITED STATES SHOULD HAVE THE
OPPORTUNITY, SIMILAR TO THAT AFFORDED LICENSEES IN AN ACTION FOR
ROYALTIES, TO SHOW THAT AN ASSERTED SHIELD OF PATENTABILITY DOES NOT
EXIST.  ID., AT 386-388. 

THE BELL CASES ENUNCIATE THE RANGE OF THE GOVERNMENT'S AUTHORITY,
QUITE INDEPENDENT OF ANY OTHER LITIGATION IT MAY HAVE WITH A PATENTEE,
TO ATTACK A GOVERNMENTAL GRANT FROM THE PATENT OFFICE OBTAINED BY THE
SORT OF FRAUD OR MISTAKE THERE DESCRIBED.  THE GYPSUM DOCTRINE, ON THE
OTHER HAND, SPRANG FROM THE RIGHT OF THE GOVERNMENT AS A CIVIL
PLAINTIFF UNDER THE ANTITRUST LAWS TO ASSERT THE INVALIDITY OF A PATENT
GRANT SET UP AS A DEFENSE TO ITS CIVIL COMPLAINT.  SINCE A PRIVATE
LICENSEE MAY ATTACK THE VALIDITY OF A PATENT THAT IS MADE THE BASIS OF
AN ACTION AGAINST HIM FOR ROYALTIES, THE GOVERNMENT SHOULD, EQUALLY,
HAVE THE RIGHT TO ATTACK A PATENT THAT IS SET UP AS A DEFENSE BY THE
PATENTEE IN THE GOVERNMENT'S ACTION. 

THE GOVERNMENT'S CLAIM HERE ESSENTIALLY FALLS BETWEEN THESE TWO
LIMITED GRANTS OF AUTHORITY.  A CLAIM OF LACK OF PATENTABILITY, WITHOUT
MORE, IS NOT WITHIN THE GOVERNMENT'S AUTHORITY QUA GOVERNMENT TO SET
ASIDE A PATENT FOR FRAUD OR MISTAKE.  AND SINCE THE DECISION OF THE
MERITS OF THE GOVERNMENT'S CLAIM OF ANTITRUST VIOLATION AGAINST THESE
APPELLEES IN NO WAY REQUIRED THE COURT TO DETERMINE THE VALIDITY OF
THEIR PATENTS, THE REASONING OF GYPSUM IS NOT APPLICABLE.  THE
GOVERNMENT MAY, THEREFORE, PREVAIL ONLY IF WE ARE TO BLUR THE
DISTINCTION BETWEEN THESE SEPARATE GRANTS OF AUTHORITY, AND EXTEND SUCH
AUTHORITY TO CIRCUMSTANCES THAT ARE WITHIN THE RATIONALE OF NEITHER. 

CERTAINLY, IT IS TRUE, AS THE COURT STATES, THAT THERE IS A PUBLIC
INTEREST FAVORING THE JUDICIAL TESTING OF PATENT VALIDITY AND THE
INVALIDATION OF SPECIOUS PATENTS.  SEE, E.G., BLONDER-TONGUE V.
UNIVERSITY FOUNDATION, 402 U.S. 313, 343-344 (1971); LEAR, INC. V.
ADKINS, 395 U.S. 654, 657, 664 (1969).  FOR WHEN A PATENT IS INVALID,
"THE PUBLIC PARTS WITH THE MONOPOLY GRANT FOR NO RETURN, THE PUBLIC HAS
BEEN IMPOSED UPON AND THE PATENT CLAUSE SUBVERTED."  UNITED STATES V.
SINGER MFG. CO., 374 U.S. 174, 197, 199-200 (1963) (WHITE, J.,
CONCURRING). 

SIGNIFICANT RECOGNITION IS GIVEN TO THIS INTEREST BY BOTH THE BELL
AND GYPSUM DOCTRINES.  ADDITIONAL AUTHORITY RESIDES IN THE GOVERNMENT
TO OBTAIN JUDICIALLY DECREED RESTRICTIONS ON PATENT MONOPOLY IN
APPROPRIATE CASES WHERE THE DEFENDANT'S ANTITRUST VIOLATIONS HAVE
CONSISTED, AT LEAST IN PART, OF PATENT MISUSE.  INTERNATIONAL SALT CO.
V. UNITED STATES, 332 U.S. 392 (1947); HARTFORD-EMPIRE CO. V. UNITED
STATES, 323 U.S. 386 (1945); MORTON SALT CO. V. G. S. SUPPIGER CO., 314
U.S. 488 (1942).  BUT THE SORT OF ROVING COMMISSION THAT THE MAJORITY
NOW AUTHORIZES WHEREBY THE GOVERNMENT MAY REQUEST A COURT TO INVALIDATE
ANY PATENT OWNED BY AN ANTITRUST DEFENDANT THAT IN ANY WAY RELATED TO
THE FACTUAL BACKGROUND OF THE CLAIMED ANTITRUST VIOLATION CANNOT BE
REGARDED AS A REASONABLY NECESSARY EXTENSION OF ANY OF THESE
PRINCIPLES.  IT IS, THEREFORE, MORE PROPERLY THE CREATURE OF STATUTE
THAN OF JUDICIAL INNOVATION. 

        II 

ALTHOUGH THE COURT PURPORTS TO LIMIT ITS HOLDING TO AVOID GIVING THE
GOVERNMENT SUCH A ROVING COMMISSION, THE RANGE OF THE NEW AUTHORITY IS
POINTED UP BY THE FACTS IN THIS CASE. 

THE GOVERNMENT SUBMITTED ITS CASE TO THE DISTRICT COURT IN THREE
MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON THE VERY NARROW ISSUE THAT THE
VERTICAL RESTRICTIONS ON THE RESALE OF BULK-FORM GRISEOFULVIN
CONSTITUTED PER SE VIOLATIONS OF THE ANTITRUST LAWS UNDER THE SCHWINN
DOCTRINE.  /4/  UNITED STATES V. ARNOLD, SCHWINN & CO., 388 U.S. 365
(1967).  ALTHOUGH COMMON BULK-FORM GRISEOFULVIN IS THE SUBJECT OF A
BRITISH MANUFACTURING PATENT OWNED BY GLAXO, IT IS NEITHER PATENTED NOR
PATENTABLE IN THE UNITED STATES. 

THE TWO PATENTS THAT THIS COURT IS NOW AUTHORIZING THE GOVERNMENT TO
CHALLENGE BEAR NO RELATIONSHIP WHATSOEVER TO THE ILLEGAL RESTRAINT
FOUND.  THE ICI PATENT RELATES ONLY TO THE DOSAGE FORM OF THE DRUG. 
THE MAJORITY STATES THAT "IT IS CLEAR FROM THE EVIDENCE THAT THE ICI
DOSAGE-FORM PATENT . . . GAVE THE APPELLEES THE ECONOMIC LEVERAGE WITH
WHICH TO INSIST UPON AND ENFORCE THE BULK-SALES RESTRICTIONS IMPOSED ON
THE LICENSEES."  ANTE, AT 60-61.  BUT NO SUCH EVIDENCE WAS SUBMITTED IN
THE GOVERNMENT'S STATEMENT OF UNDISPUTED FACTS THAT ACCOMPANIED ITS
MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON THE RESTRAINT-OF-ALIENATION
ISSUE.  AND NO SUCH FACT WAS INCLUDED IN THE DISTRICT COURT'S FINDINGS
OF UNDISPUTED OR ULTIMATE FACTS.  THE DISTRICT COURT FOUND PRECISELY
THE OPPOSITE: 

"PLAINTIFF HAS NOT SHOWN ON THIS RECORD THAT DEFENDANTS' CURRENT
LICENSING PRACTICES ARE RELATED TO THE ADJUDGED ANTITRUST VIOLATION NOR
ARE THEY METHODS TO CIRCUMVENT THE PROHIBITION OF RESTRAINTS ON
RESALE.  . . . "  328 F.SUPP.  709, 713. 

SINCE THE COURT'S FACTUAL ASSUMPTION AS TO ECONOMIC LEVERAGE IS
COMPLETELY CONTRARY TO THE FINDING OF THE DISTRICT COURT, PRESUMABLY
THE COURT WITHOUT SAYING SO IS HOLDING THAT FINDING TO BE CLEARLY
ERRONEOUS.  YET THE ONLY SUPPORT FOR SUCH A HOLDING, TO WHICH THE COURT
REFERS, IS AN UNVERIFIED STATEMENT CONTAINED IN THE GOVERNMENT'S
ARGUMENT TO THE DISTRICT COURT ON THIS ISSUE.  WHILE THE GOVERNMENT HAS
AN IMPRESSIVE BATTING AVERAGE IN THIS COURT AS AN ANTITRUST LITIGANT,
IT HAS NOT HERETOFORE HAD THE BENEFIT OF HAVING UNVERIFIED ASSERTIONS
OF ITS COUNSEL TREATED AS BEING OF SUFFICIENT EVIDENTIARY WEIGHT TO
UPSET A CONSIDERED FACTUAL FINDING OF THE DISTRICT COURT IN WHICH THAT
ARGUMENT WAS MADE.  NOTHING IN THE ANTITRUST LAWS OR IN THE FEDERAL
RULES OF CIVIL PROCEDURE EXEMPTS THE GOVERNMENT FROM HAVING TO MAKE ITS
CASE IN THE TRIAL COURT IN THE SAME MANNER AS ANY OTHER LITIGANT.  THE
COURT'S CONCLUSIONS THAT THERE "CAN BE LITTLE QUESTION THAT THE PATENTS
INVOLVED HERE WERE INTIMATELY ASSOCIATED WITH AND CONTRIBUTED TO
EFFECTUATING THE CONDUCT THAT THE DISTRICT COURT HELD TO BE A PER SE
RESTRAINT OF TRADE IN GRISEOFULVIN," ANTE, AT 62, IS THUS REACHED ONLY
BY A SUBSTANTIAL DEPARTURE FROM THE SETTLED USAGES OF APPELLATE
REVIEW. 

SIMILARLY, THE OTHER PATENT WHICH THE GOVERNMENT MAY NOW HAVE
DECLARED INVALID WAS NOT EVEN GRANTED UNTIL 1967, AND IT, TOO, RELATES
TO THE DOSAGE FORM OF THE DRUG.  SINCE THE RESTRAINTS ON ALIENATION
WERE IMPOSED IN THE EARLY 1900'S, THERE CANNOT BE A PLAUSIBLE
CONTENTION THAT IT IN ANY WAY PROVIDED "ECONOMIC LEVERAGE" FOR THE
ANTITRUST VIOLATIONS.  AND THERE WAS NO OTHER PROOF OF ITS RELATIONSHIP
TO THE BULK-FORM MARKET AND THE ANTITRUST VIOLATIONS.  /5/  THUS, THE
SCOPE OF THE NEW AUTHORITY EXTENDS TO ANY PATENT THAT HAPPENS TO BE
PRESENT IN A PATENT-LICENSING AGREEMENT THAT CONTAINS A RESTRAINT ON
ALIENATION IN A DIFFERENT MARKET, REGARDLESS OF ITS RELATIONSHIP TO
SUCH RESTRAINT. 

SINCE THERE IS NO CONGRESSIONAL AUTHORIZATION FOR THE CHALLENGE BY
THE GOVERNMENT TO THE VALIDITY VEL NON OF PATENTS WITHOUT REGARD TO THE
RELATIONSHIP TO ANTITRUST VIOLATIONS, AND SINCE THERE WAS NO PROVED
RELATIONSHIP BETWEEN THESE VIOLATIONS AND THE PATENTS IN QUESTION, I
WOULD AFFIRM THE JUDGMENT AND ORDERS OF THE DISTRICT COURT.  I
THEREFORE DISSENT. 

/1/  1 STAT. 109.  FOR AN EXCELLENT REVIEW OF THE HISTORY BRIEFLY
SUMMARIZED HERE, SEE CULLEN & VICKERS, FRAUD IN THE PROCUREMENT OF A
PATENT, 29 GEO.WASH.L.REV.  110 (1960). 

/2/  1 STAT. 318. 

/3/  5 STAT. 117. 

/4/  THE MAJORITY INACCURATELY STATES THAT THE LOWER COURT SUSTAINED
THE ALLEGATIONS IN THE COMPLAINT THAT APPELLEES HAD UNREASONABLY
RESTRAINED TRADE BY PROHIBITING THE LICENSEE FROM SELLING OR RESELLING
BULK-FORM GRISEOFULVIN.  IN FACT, THE DISTRICT COURT ONLY FOUND THAT
THE RESTRAINT ON RESELLING BULK-FORM GRISEOFULVIN CONSTITUTED THE PER
SE ANTITRUST VIOLATIONS FOUND. 

/5/  THIS TOTAL LACK OF PROOF OF ANY RELATIONSHIP ALSO DEFEATS FOR
ME THE GRANTING OF COMPULSORY LICENSING OF THE UNITED STATES PATENTS. 
COMPULSORY LICENSING IS A RECOGNIZED REMEDY IN PATENT MISUSE CASES,
SEE, E.G., INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392
(1947), HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386 (1945), BUT
HERE IN DISTRICT COURT SPECIFICALLY FOUND THERE WAS NO PATENT MISUSE OR
OTHER ABUSE OF PATENT RIGHTS. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL KAUPER, ACTING ASSISTANT ATTORNEY GENERAL
COMEGYS, WM. TERRY BRAY, HOWARD E. SHAPIRO, AND RICHARD H. STERN. 

HENRY P. SAILER ARGUED THE CAUSE FOR APPELLEE GLAXO GROUP LTD.  WITH
HIM ON THE BRIEF WAS FRANCIS D. THOMAS, JR. SIGMUND TIMBERG ARGUED THE
CAUSE FOR APPELLEE IMPERIAL CHEMICAL INDUSTRIES, LTD.  WITH HIM ON THE
BRIEF WERE PAUL N. KOKULIS AND LAWRENCE A. HYMO. 
..END :
















EPA V. MINK, 410 U.S. 73 


       ENVIRONMENTAL PROTECTION AGENCY ET AL. V. MINK ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT. 

    NO. 71-909.  ARGUED NOVEMBER 9, 1972-- DECIDED JANUARY 22,

           1973 


RESPONDENT MEMBERS OF CONGRESS BROUGHT SUIT UNDER THE FREEDOM OF
INFORMATION ACT OF 1966 TO COMPEL DISCLOSURE OF NINE DOCUMENTS THAT
VARIOUS OFFICIALS HAD PREPARED FOR THE PRESIDENT CONCERNING A SCHEDULED
UNDERGROUND NUCLEAR TEST.  ALL BUT THREE WERE CLASSIFIED AS TOP SECRET
OR SECRET UNDER E.O. 10501, AND PETITIONERS REPRESENTED THAT ALL WERE
INTER-AGENCY OR INTRA-AGENCY DOCUMENTS USED IN THE EXECUTIVE BRANCH'S
DECISIONMAKING PROCESSES.  THE DISTRICT COURT GRANTED PETITIONERS'
MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT EACH OF THE DOCUMENTS
WAS EXEMPT FROM COMPELLED DISCLOSURE BY 5 U.S.C. 552(B)(1) (HEREAFTER
EXEMPTION 1), EXCLUDING MATTERS "SPECIFICALLY REQUIRED BY EXECUTIVE
ORDER TO BE KEPT SECRET IN THE INTEREST OF THE NATIONAL DEFENSE OR
FOREIGN POLICY," AND SEC. 552(B)(5) (HEREAFTER EXEMPTION 5), EXCLUDING
"INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS OR LETTERS WHICH WOULD NOT BE
AVAILABLE BY LAW TO A PARTY . . . IN LITIGATION WITH THE AGENCY."  THE
COURT OF APPEALS REVERSED, CONCLUDING (A) THAT EXEMPTION 1 PERMITS
NONDISCLOSURE OF ONLY THE SECRET PORTIONS OF CLASSIFIED DOCUMENTS BUT
REQUIRES DISCLOSURE OF THE NONSECRET COMPONENTS IF SEPARABLE, AND (B)
THAT EXEMPTION 5 SHIELDS ONLY GOVERNMENTAL "DECISIONAL PROCESSES" AND
NOT FACTUAL INFORMATION UNLESS "INEXTRICABLY INTERTWINED WITH POLICY
MAKING PROCESSES."  THE DISTRICT COURT WAS ORDERED TO EXAMINE THE
DOCUMENTS IN CAMERA TO DETERMINE BOTH ASPECTS OF SEPARABILITY.  HELD: 

1.  EXEMPTION 1 DOES NOT PERMIT COMPELLED DISCLOSURE OF THE SIX
CLASSIFIED DOCUMENTS OR IN CAMERA INSPECTION TO SIFT OUT "NON-SECRET
COMPONENTS," AND PETITIONERS MET THEIR BURDEN OF DEMONSTRATING THAT THE
DOCUMENTS WERE ENTITLED TO PROTECTION UNDER THAT EXEMPTION.  PP. 79
84. 

2.  EXEMPTION 5 DOES NOT REQUIRE THAT OTHERWISE CONFIDENTIAL
DOCUMENTS BE MADE AVAILABLE FOR A DISTRICT COURT'S IN CAMERA INSPECTION
REGARDLESS OF HOW LITTLE, IF ANY, PURELY FACTUAL MATERIAL THEY
CONTAIN.  IN IMPLYING THAT SUCH INSPECTION BE AUTOMATIC, THE COURT OF
APPEALS ORDER WAS OVERLY RIGID; AND PETITIONERS SHOULD BE AFFORDED THE
OPPORTUNITY OF DEMONSTRATING BY MEANS SHORT OF IN CAMERA INSPECTION
THAT THE DOCUMENTS SOUGHT ARE CLEARLY BEYOND THE RANGE OF MATERIAL THAT
WOULD BE AVAILABLE TO A PRIVATE PARTY IN LITIGATION WITH A GOVERNMENT
AGENCY.  PP. 85-94. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, BLACKMUN, AND POWELL, JJ., JOINED.  STEWART, J., FILED
A CONCURRING IN PART AND DISSENTING IN PART, IN WHICH MARSHALL, J.,
JOINED, POST, P. 95.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P.
105.  REHNQUIST, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE FREEDOM OF INFORMATION ACT OF 1966, 5 U.S.C. 552, PROVIDES THAT
GOVERNMENT AGENCIES SHALL MAKE AVAILABLE TO THE PUBLIC A BROAD SPECTRUM
OF INFORMATION, BUT EXEMPTS FROM ITS MANDATE CERTAIN SPECIFIED
CATEGORIES OF INFORMATION, INCLUDING MATTERS THAT ARE "SPECIFICALLY
REQUIRED BY EXECUTIVE ORDER TO BE KEPT SECRET IN THE INTEREST OF THE
NATIONAL DEFENSE OR FOREIGN POLICY," SEC. 552(B)(1), OR ARE "INTER
AGENCY OR INTRA-AGENCY MEMORANDUMS OR LETTERS WHICH WOULD NOT BE
AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY IN LITIGATION WITH THE
AGENCY," SEC. 552(B)(5).  IT IS THE CONSTRUCTION AND SCOPE OF THESE
EXEMPTIONS THAT ARE AT ISSUE HERE. 

        I 

RESPONDENTS' LAWSUIT BEGAN WITH AN ARTICLE THAT APPEARED IN A
WASHINGTON, D.C., NEWSPAPER IN LATE JULY 1971.  THE ARTICLE INDICATED
THAT THE PRESIDENT HAD RECEIVED CONFLICTING RECOMMENDATIONS ON THE
ADVISABILITY OF THE UNDERGROUND NUCLEAR TEST SCHEDULED FOR THAT COMING
FALL AND, IN PARTICULAR, NOTED THAT THE "LATEST RECOMMENDATIONS" WERE
THE PRODUCT OF "A DEPARTMENTAL UNDER-SECRETARY COMMITTEE NAMED TO
INVESTIGATE THE CONTROVERSY."  TWO DAYS LATER, CONGRESSWOMAN PATSY
MINK, A RESPONDENT, SENT A TELEGRAM TO THE PRESIDENT URGENTLY
REQUESTING THE "IMMEDIATE RELEASE OF RECOMMENDATIONS AND REPORT BY
INTER-DEPARTMENTAL COMMITTEE . . . ."  WHEN THE REQUEST WAS DENIED, AN
ACTION UNDER THE FREEDOM OF INFORMATION ACT WAS COMMENCED BY
CONGRESSWOMAN MINK AND 32 OF HER COLLEAGUES IN THE HOUSE.  /1/ 

PETITIONERS IMMEDIATELY MOVED FOR SUMMARY JUDGMENT ON THE GROUND
THAT THE MATERIALS SOUGHT WERE SPECIFICALLY EXEMPTED FROM DISCLOSURE
UNDER SUBSECTIONS (B)(1) AND (B)(5) OF THE ACT.  /2/  IN SUPPORT OF THE
MOTION, PETITIONERS FILED AN AFFIDAVIT OF JOHN N. IRWIN II, THE UNDER
SECRETARY OF STATE.  BRIEFLY, THE AFFIDAVIT STATES THAT MR. IRWIN WAS
APPOINTED BY PRESIDENT NIXON AS CHAIRMAN OF AN "UNDER SECRETARIES
COMMITTEE," WHICH WAS A PART OF THE NATIONAL SECURITY COUNCIL SYSTEM
ORGANIZED BY THE PRESIDENT "SO THAT HE COULD USE IT AS AN INSTRUMENT
FOR OBTAINING ADVICE ON IMPORTANT QUESTIONS RELATING TO OUR NATIONAL
SECURITY."  THE COMMITTEE WAS DIRECTED BY THE PRESIDENT IN 1969 "TO
REVIEW THE ANNUAL UNDERGROUND NUCLEAR TEST PROGRAM AND TO ENCOMPASS
WITHIN THIS REVIEW REQUESTS FOR AUTHORIZATION OF SPECIFIC SCHEDULED
TESTS."  RESULTS OF THE COMMITTEE'S REVIEWS WERE TO BE TRANSMITTED TO
THE PRESIDENT "IN TIME TO ALLOW HIM TO GIVE THEM FULL CONSIDERATION
BEFORE THE SCHEDULED EVENTS."  IN PARA. 5 OF THE AFFIDAVIT, MR. IRWIN
STATED THAT PURSUANT TO "THE FOREGOING DIRECTIONS FROM THE PRESIDENT,"
THE UNDER SECRETARIES COMMITTEE HAD PREPARED AND TRANSMITTED TO THE
PRESIDENT A REPORT ON THE PROPOSED UNDERGROUND NUCLEAR TEST KNOWN AS
"CANNIKIN," SCHEDULED TO TAKE PLACE AT AMCHITKA ISLAND, ALASKA.  THE
REPORT WAS SAID TO HAVE CONSISTED OF A COVERING MEMORANDUM FROM MR.
IRWIN, THE REPORT OF THE UNDER SECRETARIES COMMITTEE, FIVE DOCUMENTS
ATTACHED TO THAT REPORT, AND THREE ADDITIONAL LETTERS SEPARATELY SENT
TO MR. IRWIN.  /3/  OF THE TOTAL OF 10 DOCUMENTS, ONE, AN ENVIRONMENTAL
IMPACT STATEMENT PREPARED BY AEC, WAS PUBLICLY AVAILABLE AND WAS NOT IN
DISPUTE.  EACH OF THE OTHER NINE WAS CLAIMED IN THE IRWIN AFFIDAVIT TO
HAVE BEEN 

"PREPARED AND USED SOLELY FOR TRANSMITTAL TO THE PRESIDENT AS ADVICE
AND RECOMMENDATIONS AND SET FORTH THE VIEWS AND OPINIONS OF THE
INDIVIDUALS AND AGENCIES PREPARING THE DOCUMENTS SO THAT THE PRESIDENT
MIGHT BE FULLY APPRISED OF VARYING VIEWPOINTS AND HAVE BEEN USED FOR NO
OTHER PURPOSE."  IN ADDITION, AT LEAST EIGHT (BY NOW REDUCED TO SIX) OF
THE NINE REMAINING DOCUMENTS WERE SAID TO INVOLVE HIGHLY SENSITIVE
MATTER VITAL TO THE NATIONAL DEFENSE AND FOREIGN POLICY AND WERE
DESCRIBED AS HAVING BEEN CLASSIFIED TOP SECRET OR SECRET PURSUANT TO
EXECUTIVE ORDER 10501.  /4/ 

ON THE STRENGTH OF THIS SHOWING BY PETITIONERS, THE DISTRICT COURT
GRANTED SUMMARY JUDGMENT IN THEIR FAVOR ON THE GROUND THAT EACH OF THE
NINE DOCUMENTS SOUGHT WAS EXEMPTED FROM COMPELLED DISCLOSURE BY SECS.
(B)(1) AND (B)(5) OF THE ACT.  THE COURT OF APPEALS REVERSED,
CONCLUDING THAT SUBSECTION (B)(1) OF THE ACT PERMITS THE WITHHOLDING OF
ONLY THE SECRET PORTIONS OF THOSE DOCUMENTS BEARING A SEPARATE
CLASSIFICATION UNDER EXECUTIVE ORDER 10501:  "IF THE NONSECRET
COMPONENTS (OF SUCH DOCUMENTS) ARE SEPARABLE FROM THE SECRET REMAINDER
AND MAY BE READ SEPARATELY WITHOUT DISTORTION OF MEANING, THEY TOO
SHOULD BE DISCLOSED."  150 U.S.APP.D.C. 233, 237, 464 F.2D 742, 746. 
THE COURT INSTRUCTED THE DISTRICT JUDGE TO EXAMINE THE CLASSIFIED
DOCUMENTS "LOOKING TOWARD THEIR POSSIBLE SEPARATION FOR PURPOSES OF
DISCLOSURE OR NONDISCLOSURE."  IBID. 

IN ADDITION, THE COURT OF APPEALS CONCLUDED THAT ALL NINE CONTESTED
DOCUMENTS FELL WITHIN SUBSECTION (B)(5) OF THE ACT, BUT CONSTRUED THAT
EXEMPTION AS SHIELDING ONLY THE "DECISIONAL PROCESSES" REFLECTED IN
INTERNAL GOVERNMENT MEMORANDA, NOT "FACTUAL INFORMATION" UNLESS THAT
INFORMATION IS "INEXTRICABLY INTERTWINED WITH POLICYMAKING PROCESSES." 
THE COURT THEN ORDERED THE DISTRICT JUDGE TO EXAMINE THE DOCUMENTS IN
CAMERA (INCLUDING, PRESUMABLY, ANY "NONSECRET COMPONENTS" OF THE SIX
CLASSIFIED DOCUMENTS) TO DETERMINE IF "FACTUAL DATA" COULD BE SEPARATED
OUT AND DISCLOSED "WITHOUT IMPINGING ON THE POLICYMAKING DECISIONAL
PROCESSES INTENDED TO BE PROTECTED BY THIS EXEMPTION."  WE GRANTED
CERTIORARI, 405 U.S. 974, AND NOW REVERSE THE JUDGMENT OF THE COURT OF
APPEALS. 

        II 

THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552, /5/  IS A REVISION OF
SEC. 3, THE PUBLIC DISCLOSURE SECTION, OF THE ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. 1002 (1964 ED.).  SECTION 3 WAS GENERALLY RECOGNIZED AS
FALLING FAR SHORT OF ITS DISCLOSURE GOALS AND CAME TO BE LOOKED UPON
MORE AS A WITHHOLDING STATUTE THAN A DISCLOSURE STATUTE.  SEE S.REP.NO.
813, 89TH CONG., 1ST SESS., 5 (1965) (HEREINAFTER S.REP.NO. 813);
H.R.REP.NO. 1497, 89TH CONG., 2D SESS., 5-6 (1966) (HEREINAFTER
H.R.REP.NO. 1497).  THE SECTION WAS PLAGUED WITH VAGUE PHRASES, SUCH AS
THAT EXEMPTING FROM DISCLOSURE "ANY FUNCTION OF THE UNITED STATES
REQUIRING SECRECY IN THE PUBLIC INTEREST."  MOREOVER, EVEN "MATTERS OF
OFFICIAL RECORD" WERE ONLY TO BE MADE AVAILABLE TO "PERSONS PROPERLY
AND DIRECTLY CONCERNED"  WITH THE INFORMATION.  AND THE SECTION
PROVIDED NO REMEDY FOR WRONGFUL WITHHOLDING OF INFORMATION.  THE
PROVISIONS OF THE FREEDOM OF INFORMATION ACT STAND IN SHARP RELIEF
AGAINST THOSE OF SEC. 3.  THE ACT ELIMINATES THE "PROPERLY AND DIRECTLY
CONCERNED" TEST OF ACCESS, STATING REPEATEDLY THAT OFFICIAL INFORMATION
SHALL BE MADE AVAILABLE "TO THE PUBLIC," "FOR PUBLIC INSPECTION." 
SUBSECTION (B) OF THE ACT CREATES NINE CREATES NINE EXEMPTIONS FROM
COMPELLED DISCLOSURES.  THESE EXEMPTIONS ARE EXPLICITLY MADE EXCLUSIVE,
5 U.S.C. 552(C), AND ARE PLAINLY INTENDED TO SET UP CONCRETE, WORKABLE
STANDARDS FOR DETERMINING WHETHER PARTICULAR MATERIAL MAY BE WITHHELD
OR MUST BE DISCLOSED.  AGGRIEVED CITIZENS ARE GIVEN A SPEEDY REMEDY IN
DISTRICT COURTS, WHERE "THE COURT SHALL DETERMINE THE MATTER DE NOVO
AND THE BURDEN IS ON THE AGENCY TO SUSTAIN ITS ACTION."  5 U.S.C.
552(A)(3).  NONCOMPLIANCE WITH COURT ORDERS MAY BE PUNISHED BY
CONTEMPT.  IBID. 

WITHOUT QUESTION, THE ACT IS BROADLY CONCEIVED.  IT SEEKS TO PERMIT
ACCESS TO OFFICIAL INFORMATION LONG SHIELDED UNNECESSARILY FROM PUBLIC
VIEW AND ATTEMPTS TO CREATE A JUDICIALLY ENFORCEABLE PUBLIC RIGHT TO
SECURE SUCH INFORMATION FROM POSSIBLY UNWILLING OFFICIAL HANDS. 
SUBSECTION (B) IS PART OF THIS SCHEME AND REPRESENTS THE CONGRESSIONAL
DETERMINATION OF THE TYPES OF INFORMATION THAT THE EXECUTIVE BRANCH
MUST HAVE THE OPTION TO KEEP CONFIDENTIAL, IF IT SO CHOOSES.  AS THE
SENATE COMMITTEE EXPLAINED, IT WAS NOT "AN EASY TASK TO BALANCE THE
OPPOSING INTERESTS, BUT IT IS NOT AN IMPOSSIBLE ONE EITHER . . . .
SUCCESS LIES IN PROVIDING A WORKABLE FORMULA WHICH ENCOMPASSES,
BALANCES, AND PROTECTS ALL INTERESTS, YET PLACES EMPHASIS ON THE
FULLEST RESPONSIBLE DISCLOSURE."  S.REP.NO. 813, P. 3.  /6/ 

IT IS IN THE CONTEXT OF THE ACT'S ATTEMPT TO PROVIDE A "WORKABLE
FORMULA" THAT "BALANCES, AND PROTECTS ALL INTERESTS," THAT THE
CONFLICTING CLAIMS OVER THE DOCUMENTS IN THIS CASE MUST BE CONSIDERED. 

        A 

SUBSECTION (B)(1) OF THE ACT EXEMPTS FROM FORCED DISCLOSURE MATTERS
"SPECIFICALLY REQUIRED BY EXECUTIVE ORDER TO BE KEPT SECRET IN THE
INTEREST OF THE NATIONAL DEFENSE OR FOREIGN POLICY."  ACCORDING TO THE
IRWIN AFFIDAVIT, THE SIX DOCUMENTS FOR WHICH EXEMPTION 1 IS NOW CLAIMED
WERE ALL DULY CLASSIFIED TOP SECRET OR SECRET, PURSUANT TO EXECUTIVE
ORDER 10501, 3 CFR 280 (JAN. 1, 1970).  THAT ORDER WAS PROMULGATED
UNDER THE AUTHORITY OF THE PRESIDENT IN 1953, 18 FED.REG.  7049, AND,
SINCE THAT TIME, HAS SERVED AS THE BASIS FOR THE CLASSIFICATION BY THE
EXECUTIVE BRANCH OF INFORMATION "WHICH REQUIRES PROTECTION IN THE
INTERESTS OF NATIONAL DEFENSE."  /7/  WE DO NOT BELIEVE THAT EXEMPTION
1 PERMITS COMPELLED DISCLOSURE OF DOCUMENTS, SUCH AS THE SIX HERE THAT
WERE CLASSIFIED PURSUANT TO THIS EXECUTIVE ORDER.  NOR DOES THE
EXEMPTION PERMIT IN CAMERA INSPECTION OF SUCH DOCUMENTS TO SIFT OUT SO
CALLED "NONSECRET COMPONENTS."  OBVIOUSLY, THIS TEST WAS NOT THE ONLY
ALTERNATIVE AVAILABLE.  BUT CONGRESS CHOSE TO FOLLOW THE EXECUTIVE'S
DETERMINATION IN THESE MATTERS AND THAT CHOICE MUST BE HONORED. 

THE LANGUAGE OF EXEMPTION 1 WAS CHOSEN WITH CARE.  ACCORDING TO THE
SENATE COMMITTEE, "(THE CHANGE OF STANDARD FROM 'IN THE PUBLIC
INTEREST' IS MADE BOTH TO DELIMIT MORE NARROWLY THE EXCEPTION AND TO
GIVE IT A MORE PRECISE DEFINITION.  THE PHRASE 'PUBLIC INTEREST' IN
CONFLICTING INTERPRETATIONS, OFTEN COLORED BY PERSONAL PREJUDICES AND
PREDILECTIONS.  IT ADMITS OF NO CLEAR DELINEATIONS."  S.REP.NO. 813, P.
8.  THE HOUSE COMMITTEE SIMILARLY POINTED OUT THAT EXEMPTION 1 "BOTH
LIMITS THE PRESENT VAGUE PHRASE, 'IN THE PUBLIC INTEREST,' AND GIVES
THE AREA OF NECESSARY SECRECY A MORE PRECISE DEFINITION."  H.R.REP.NO.
1497, P. 9.  MANIFESTLY, EXEMPTION 1 WAS INTENDED TO DISPEL UNCERTAINTY
WITH RESPECT TO PUBLIC ACCESS TO MATERIAL AFFECTING "NATIONAL DEFENSE
OR FOREIGN POLICY."  RATHER THAN SOME VAGUE STANDARD, THE TEST WAS TO
BE SIMPLY WHETHER THE PRESIDENT HAS DETERMINED BY EXECUTIVE ORDER THAT
PARTICULAR DOCUMENTS ARE TO BE KEPT SECRET.  THE LANGUAGE OF THE ACT
ITSELF IS SUFFICIENTLY CLEAR IN THIS RESPECT, BUT THE LEGISLATIVE
HISTORY DISPOSES OF ANY POSSIBLE ARGUMENT THAT CONGRESS INTENDED THE
CLASSIFICATIONS TO JUDICIAL REVIEW AT THE INSISTENCE OF ANYONE WHO
MIGHT SEEK TO QUESTION THEM.  THUS, THE HOUSE REPORT STATED WITH
RESPECT TO SUBSECTION (B)(1) THAT "CITIZENS BOTH IN AND OUT OF
GOVERNMENT CAN AGREE TO RESTRICTIONS ON CATEGORIES OF INFORMATION WHICH
THE PRESIDENT HAD DETERMINED MUST BE KEPT SECRET TO PROTECT THE
NATIONAL DEFENSE OR TO ADVANCE FOREIGN POLICY, SUCH AS MATTERS
CLASSIFIED PURSUANT TO EXECUTIVE ORDER 10501."  H.R.REP.NO. 1497, PP. 9
10.  /8/  SIMILARLY, REPRESENTATIVE MOSS, CHAIRMAN OF THE HOUSE
SUBCOMMITTEE THAT CONSIDERED THE BILL, STATED THAT THE EXEMPTION "WAS
INTENDED TO SPECIFICALLY RECOGNIZE THAT EXECUTIVE ORDER (NO. 10501)"
AND WAS DRAFTED "IN CONFORMITY WITH THAT EXECUTIVE ORDER."  HEARINGS ON
FEDERAL PUBLIC RECORDS LAW BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE
ON GOVERNMENT OPERATIONS, 89TH CONG., 1ST SESS., 52, 55 (1965)
(HEREINAFTER 1965 HOUSE HEARINGS).  AND A MEMBER OF THE COMMITTEE,
REPRESENTATIVE GALLAGHER, STATED THAT THE LEGISLATION AND THE COMMITTEE
REPORT MAKE IT "CRYSTAL CLEAR THAT THE BILL IN NO WAY AFFECTS
CATEGORIES OF INFORMATION WHICH THE PRESIDENT . . . HAS DETERMINED MUST
BE CLASSIFIED TO PROTECT THE NATIONAL DEFENSE OR TO ADVANCE FOREIGN
POLICY.  THESE AREAS OF INFORMATION MOST GENERALLY ARE CLASSIFIED UNDER
EXECUTIVE ORDER NO. 10501."  112 CONG.REC.  13659. 

THESE SAME SOURCES MAKE UNTENABLE THE ARGUMENT THAT CLASSIFICATION
OF MATERIAL UNDER EXECUTIVE ORDER 10501 IS SOMEHOW INSUFFICIENT FOR
EXEMPTION 1 PURPOSES, OR THAT THE EXEMPTION CONTEMPLATES THE ISSUANCE
OF ORDERS, UNDER SOME OTHER AUTHORITY, FOR EACH DOCUMENT THE EXECUTIVE
MAY WANT PROTECTED FROM DISCLOSURE UNDER THE ACT.  CONGRESS COULD
CERTAINLY HAVE PROVIDED THAT THE EXECUTIVE BRANCH ADOPT NEW PROCEDURES
OR IT COULD HAVE ESTABLISHED ITS OWN PROCEDURES-- SUBJECT ONLY TO
WHATEVER LIMITATIONS THE EXECUTIVE PRIVILEGE MAY BE HELD TO IMPOSE UPON
SUCH CONGRESSIONAL ORDERING.  CF.  UNITED STATES V. REYNOLDS, 345 U.S.
1 (1953).  BUT EXEMPTION 1 DOES NEITHER.  IT STATES WITH THE UTMOST
DIRECTNESS THAT THE ACT EXEMPTS MATTERS "SPECIFICALLY REQUIRED BY
EXECUTIVE ORDER TO BE KEPT SECRET."  CONGRESS WAS WELL AWARE OF THE
ORDER AND OBVIOUSLY ACCEPTED DETERMINATIONS PURSUANT TO THAT ORDER AS
QUALIFYING FOR EXEMPT STATUS UNDER SEC. (B)(1).  IN THIS CONTEXT IT IS
PATENTLY UNREALISTIC TO ARGUE THAT THE "ORDER HAS NOTHING TO DO WITH
THE FIRST EXEMPTION."  /9/ 

WHAT HAS BEEN SAID THUS FAR MAKES WHOLLY UNTENABLE ANY CLAIM THAT
THE ACT INTENDED TO SUBJECT THE SOUNDNESS OF EXECUTIVE SECURITY
CLASSIFICATIONS TO JUDICIAL REVIEW AT THE INSISTENCE OF ANY OBJECTING
CITIZEN.  IT ALSO NEGATES THE PROPOSITION THAT EXEMPTION 1 AUTHORIZES
OR PERMITS IN CAMERA INSPECTION OF A CONTESTED DOCUMENT BEARING A
SINGLE CLASSIFICATION SO THAT THE COURT MAY SEPARATE THE SECRET FROM
THE SUPPOSEDLY NONSECRET AND ORDER DISCLOSURE OF THE LATTER.  THE COURT
OF APPEALS WAS THUS IN ERROR.  THE IRWIN AFFIDAVIT STATED THAT EACH OF
THE SIX DOCUMENTS FOR WHICH EXEMPTION 1 IS NOW CLAIMED "ARE AND HAVE
BEEN CLASSIFIED" TOP SECRET AND SECRET "PURSUANT TO EXECUTIVE ORDER NO.
10501" AND AS INVOLVING "HIGHLY SENSITIVE MATTER THAT IS VITAL TO OUR
NATIONAL DEFENSE AND FOREIGN POLICY."  THE FACT OF THOSE
CLASSIFICATIONS AND THE DOCUMENTS' CHARACTERIZATIONS HAVE NEVER BEEN
DISPUTED BY RESPONDENTS.  ACCORDINGLY, UPON SUCH A SHOWING AND IN SUCH
CIRCUMSTANCES, PETITIONERS HAD MET THEIR BURDEN OF DEMONSTRATING THAT
THE DOCUMENTS WERE ENTITLED TO PROTECTION UNDER EXEMPTION 1, AND THE
DUTY OF THE DISTRICT COURT UNDER SEC. 552(A)(3) WAS THEREFORE AT AN
END.  /10/

        B 

DISCLOSURE OF THE THREE DOCUMENTS CONCEDED TO BE "UNCLASSIFIED" IS
RESISTED SOLELY ON THE BASIS OF SUBSECTION (B)(5) OF THE ACT (HEREAFTER
EXEMPTION 5).  /11/  THAT EXEMPTION WAS ALSO INVOKED, ALTERNATIVELY, TO
SUPPORT WITHHOLDING THE SIX DOCUMENTS FOR WHICH EXEMPTION 1 WAS
CLAIMED.  IT IS BEYOND QUESTION THAT THE IRWIN AFFIDAVIT, STANDING
ALONE, IS SUFFICIENT TO ESTABLISH THAT ALL OF THE DOCUMENTS INVOLVED IN
THIS LITIGATION ARE "INTER-AGENCY OR INTRA-AGENCY" MEMORANDA OR
"LETTERS" THAT WERE USED IN THE DECISION MAKING PROCESSES OF THE
EXECUTIVE BRANCH.  BY ITS TERMS, HOWEVER, EXEMPTION 5 CREATES AN
EXEMPTION FOR SUCH DOCUMENTS ONLY INSOFAR AS THEY "WOULD NOT BE
AVAILABLE BY LAW TO A PARTY . . . IN LITIGATION WITH THE AGENCY."  THIS
LANGUAGE CLEARLY CONTEMPLATES THAT THE PUBLIC IS ENTITLED TO ALL SUCH
MEMORANDA OR LETTERS THAT A PRIVATE PARTY COULD DISCOVER IN LITIGATION
WITH THE AGENCY.  DRAWING SUCH A LINE BETWEEN WHAT MAY BE WITHHELD AND
WHAT MUST BE DISCLOSED IS NOT WITHOUT DIFFICULTIES.  IN MANY IMPORTANT
RESPECTS, THE RULES GOVERNING DISCOVERY IN SUCH LITIGATION HAVE
REMAINED UNCERTAIN FROM THE VERY BEGINNINGS OF THE REPUBLIC.  /12/
MOREOVER, AT BEST, THE DISCOVERY RULES CAN ONLY BE APPLIED UNDER
EXEMPTION 5 BY WAY OF ROUGH ANALOGIES.  FOR EXAMPLE, WE DO NOT KNOW
WHETHER THE GOVERNMENT IS TO BE TREATED AS THOUGH IT WERE A PROSECUTOR,
A CIVIL PLAINTIFF, OR A DEFENDANT.  /13/  NOR DOES THE ACT, BY ITS
TERMS, PERMIT INQUIRY INTO PARTICULARIZED NEEDS OF THE INDIVIDUAL
SEEKING THE INFORMATION, ALTHOUGH SUCH AN INQUIRY WOULD ORDINARILY BE
MADE OF A PRIVATE LITIGANT.  STILL, THE LEGISLATIVE HISTORY OF
EXEMPTION 5 DEMONSTRATES THAT CONGRESS INTENDED TO INCORPORATE
GENERALLY THE RECOGNIZED RULE THAT "CONFIDENTIAL INTRA-AGENCY ADVISORY
OPINIONS . . . ARE PRIVILEGED FROM INSPECTION."  KAISER ALUMINUM &
CHEMICAL CORP. V. UNITED STATES, 141 CT.CL. 38, 49, 157 F.SUPP.  939,
946 (1958) (REED, J.).  AS MR. JUSTICE REED THERE STATED: 

     "THERE IS A PUBLIC POLICY INVOLVED IN THIS CLAIM OF PRIVILEGE

  FOR THIS ADVISORY OPINION-- THE POLICY OF OPEN, FRANK DISCUSSION

  BETWEEN SUBORDINATE AND CHIEF CONCERNING ADMINISTRATIVE ACTION." 

  ID., AT 48, 157 F.SUPP.,AT 946. 

THE IMPORTANCE OF THIS UNDERLYING POLICY WAS ECHOED AGAIN AND AGAIN
DURING LEGISLATIVE ANALYSIS AND DISCUSSIONS OF EXEMPTION 5: 

"IT WAS POINTED OUT IN THE COMMENTS OF MANY OF THE AGENCIES THAT IT
WOULD BE IMPOSSIBLE TO HAVE ANY FRANK DISCUSSION OF LEGAL OR POLICY
MATTERS IN WRITING IF ALL SUCH WRITINGS WERE TO BE SUBJECTED TO PUBLIC
SCRUTINY.  IT WAS ARGUED, AND WITH MERIT, THAT EFFICIENCY OF GOVERNMENT
WOULD BE GREATLY HAMPERED IF, WITH RESPECT TO LEGAL AND POLICY MATTERS,
ALL GOVERNMENT AGENCIES WERE PREMATURELY FORCED TO 'OPERATE IN A
FISHBOWL.'  THE COMMITTEE IS CONVINCED OF THE MERITS OF THIS GENERAL
PROPOSITION, BUT IT HAS ATTEMPTED TO DELIMIT THE EXCEPTION AS NARROWLY
AS CONSISTENT WITH EFFICIENT GOVERNMENT OPERATION."  S.REP.NO. 813, P.
9.  SEE ALSO H.R.REP.NO. 1497, P. 10.  BUT THE PRIVILEGE THAT HAS BEEN
HELD TO ATTACH TO INTRAGOVERNMENTAL MEMORANDA CLEARLY HAS FINITE
LIMITS, EVEN IN CIVIL LITIGATION.  IN EACH CASE, THE QUESTION WAS
WHETHER PRODUCTION OF THE CONTESTED DOCUMENT WOULD BE INJURIOUS TO THE
CONSULTATIVE FUNCTIONS OF GOVERNMENT THAT THE PRIVILEGE OF
NONDISCLOSURE PROTECTS."  KAISER ALUMINUM & CHEMICAL CORP., SUPRA., AT
49, 157 F.SUPP.,AT 946.  THUS, IN THE ABSENCE OF A CLAIM THAT
DISCLOSURE WOULD JEOPARDIZE STATE SECRETS, SEE UNITED STATES V.
REYNOLDS, 345 U.S. 1 (1953), MEMORANDA CONSISTING ONLY OF COMPILED
FACTUAL MATERIAL OR PURELY FACTUAL MATERIAL CONTAINED IN DELIBERATIVE
MEMORANDA AND SEVERABLE FROM ITS CONTEXT WOULD GENERALLY BE AVAILABLE
FOR DISCOVERY BY PRIVATE PARTIES IN LITIGATION WITH THE GOVERNMENT. 
/14/  MOREOVER, IN APPLYING THE PRIVILEGE, COURTS OFTEN WERE REQUIRED
TO EXAMINE THE DISPUTED DOCUMENTS IN CAMERA, IN ORDER TO DETERMINE
WHICH SHOULD BE TURNED OVER OR WITHHELD.  /15/  WE MUST ASSUME,
THEREFORE, THAT CONGRESS LEGISLATED AGAINST THE BACKDROP OF THIS CASE
LAW, PARTICULARLY SINCE IT EXPRESSLY INTENDED "TO DELIMIT THE EXCEPTION
(5) AS NARROWLY AS CONSISTENT WITH EFFICIENT GOVERNMENT OPERATION." 
S.REP.NO. 813, P. 9.  SEE H.R.REP.NO. 1497, P. 10.  VIRTUALLY ALL OF
THE COURTS THAT HAVE THUS FAR APPLIED EXEMPTION 5 HAVE RECOGNIZED THAT
IT REQUIRES DIFFERENT TREATMENT FOR MATERIALS REFLECTING DELIBERATIVE
OR POLICYMAKING PROCESSES ON THE ONE HAND, AND PURELY FACTUAL,
INVESTIGATIVE MATTERS ON THE OTHER.  /16/ 

NOTHING IN THE LEGISLATIVE HISTORY OF EXEMPTION 5 IS CONTRARY TO
SUCH A CONSTRUCTION.  WHEN THE BILL THAT ULTIMATELY BECAME THE FREEDOM
OF INFORMATION ACT, S. 1160, WAS INTRODUCED IN THE 89TH CONGRESS, IT
CONTAINED AN EXEMPTION THAT EXCLUDED: 

"INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS OR LETTERS DEALING SOLELY
WITH MATTERS OF LAW OR POLICY."  /17/ THIS FORMULATION WAS DESIGNED TO
PERMIT "(ALL FACTUAL MATERIAL IN GOVERNMENT RECORDS . . . TO BE MADE
AVAILABLE TO THE PUBLIC."  S.REP.NO. 1219, 88TH CONG., 2D SESS., 7
(1964).  THE FORMULATION WAS SEVERLY CRITICIZED, HOWEVER, ON THE GROUND
THAT IT WOULD PERMIT COMPELLED DISCLOSURE OF AN OTHERWISE PRIVATE
DOCUMENT SIMPLY BECAUSE THE DOCUMENT DID NOT DEAL "SOLELY" WITH LEGAL
OR POLICY MATTERS.  DOCUMENTS DEALING WITH MIXED QUESTIONS OF FACT,
LAW, AND POLICY WOULD INEVITABLY, UNDER THE PROPOSED EXEMPTION, BECOME
AVAILABLE TO THE PUBLIC.  /18/  AS A RESULT OF THIS CRITICISM,
EXEMPTION 5 WAS CHANGED TO SUBSTANTIALLY ITS PRESENT FORM.  BUT
PLAINLY, THE CHANGE CANNOT BE READ AS SUGGESTING THAT ALL FACTUAL
MATERIAL WAS TO BE RENDERED EXEMPT FROM COMPELLED DISCLOSURE.  CONGRESS
SENSIBLY DISCARDED A WOODEN EXEMPTION THAT COULD HAVE MEANT DISCLOSURE
OF MANIFESTLY PRIVATE AND CONFIDENTIAL POLICY RECOMMENDATIONS SIMPLY
BECAUSE THE DOCUMENT CONTAINING THEM ALSO HAPPENED TO CONTAIN FACTUAL
DATA.  THAT DECISION SHOULD NOT BE TAKEN, HOWEVER, TO EMBRACE AN
EQUALLY WOODEN EXEMPTION PERMITTING THE WITHHOLDING OF FACTUAL MATERIAL
OTHERWISE AVAILABLE ON DISCOVERY MERELY BECAUSE IT WAS PLACED IN A
MEMORANDUM WITH MATTERS OF LAW, POLICY, OR OPINION.  IT APPEARS TO US
THAT EXEMPTION 5 CONTEMPLATES THAT THE PUBLIC'S ACCESS TO INTERNAL
MEMORANDA WILL BE GOVERNED BY THE SAME FLEXIBLE, COMMONSENSE APPROACH
THAT HAS LONG GOVERNED PRIVATE PARTIES' DISCOVERY OF SUCH DOCUMENTS
INVOLVED IN LITIGATION WITH GOVERNMENT AGENCIES.  AND, AS NOTED, THAT
APPROACH EXTENDED AND CONTINUES TO EXTEND TO THE DISCOVERY OF PURELY
FACTUAL MATERIAL APPEARING IN THOSE DOCUMENTS IN A FORM THAT IS
SEVERABLE WITHOUT COMPROMISING THE PRIVATE REMAINDER OF THE DOCUMENTS. 

PETITIONERS FURTHER ARGUE THAT, ALTHOUGH IN CAMERA INSPECTION AND
DISCLOSURE OF "LOW-LEVEL, ROUTINE, FACTUAL REPORTS"  /19/  MAY BE
CONTEMPLATED BY EXEMPTION 5, THAT TYPE OF DOCUMENT IS NOT INVOLVED IN
THIS CASE.  RATHER, IT IS ARGUED, THE DOCUMENTS HERE WERE SUBMITTED
DIRECTLY TO THE PRESIDENT BY TOP-LEVEL GOVERNMENT OFFICIALS, INVOLVED
MATTERS OF MAJOR SIGNIFICANCE, AND CONTAIN, BY THEIR VERY NATURE, A
BLENDING OF FACTUAL PRESENTATIONS AND POLICY RECOMMENDATIONS THAT ARE
NECESSARILY "INEXTRICABLY INTERTWINED WITH POLICYMAKING PROCESSES." 
150 U.S.APP.D.C.,AT 237, 464 F.2D, AT 746.  FOR THESE REASONS, THE
PETITIONERS OBJECT BOTH TO DISCLOSURE OF ANY PORTIONS OF THE DOCUMENTS
AND TO IN CAMERA INSPECTION BY THE DISTRICT COURT. 

TO SOME EXTENT, THIS ARGUMENT WAS ANSWERED BY THE COURT OF APPEALS,
FOR ITS REMAND EXPRESSLY DIRECTED THE DISTRICT JUDGE TO DISCLOSE ONLY
SUCH FACTUAL MATERIAL THAT IS NOT "INTERTWINED WITH POLICYMAKING
PROCESSES' AND THAT MAY SAFELY BE DISCLOSED "WITHOUT IMPINGING ON THE
POLICYMAKING DECISIONAL PROCESS INTENDED TO BE PROTECTED BY THIS
EXEMPTION."  WE HAVE NO REASON TO BELIEVE THAT, IF PETITIONERS'
CHARACTERIZATION OF THE DOCUMENTS IS ACCURATE, THE DISTRICT JUDGE WOULD
GO BEYOND THE LIMITS OF THE REMAND AND IN ANY WAY COMPROMISE THE
CONFIDENTIALITY OF DELIBERATIVE INFORMATION THAT IS ENTITLED TO
PROTECTION UNDER EXEMPTION 5. 

WE BELIEVE, HOWEVER, THAT THE REMAND NOW ORDERED BY THE COURT OF
APPEALS IS UNNECESSARILY RIGID.  THE FREEDOM OF INFORMATION ACT MAY BE
INVOKED BY ANY MEMBER OF "THE PUBLIC"-- WITHOUT A SHOWING OF NEED-- TO
COMPEL DISCLOSURE OF CONFIDENTIAL GOVERNMENT DOCUMENTS.  THE
UNMISTAKABLE IMPLICATION OF THE DECISION BELOW IS THAT ANY MEMBER OF
THE PUBLIC INVOKING THE ACT MAY REQUIRE THAT OTHERWISE CONFIDENTIAL
DOCUMENTS BE BROUGHT FORWARD AND PLACED BEFORE THE DISTRICT COURT FOR
IN CAMERA INSPECTION-- NO MATTER HOW LITTLE, IF ANY, PURELY FACTUAL
MATERIAL MAY ACTUALLY BE CONTAINED THEREIN.  EXEMPTION 5 MANDATES NO
SUCH RESULT.  AS WAS SAID IN KAISER ALUMINUM & CHEMICAL CORP., 141
CT.CL.,AT 50, 157 F.SUPP.,AT 947:  "IT SEEMS . . . OBVIOUS THAT THE
VERY PURPOSE OF THE PRIVILEGE, THE ENCOURAGEMENT OF OPEN EXPRESSION OF
OPINION AS TO GOVERNMENTAL POLICY IS SOMEWHAT IMPAIRED BY A REQUIREMENT
TO SUBMIT THE EVIDENCE EVEN (IN CAMERA)."  PLAINLY, IN SOME SITUATIONS,
IN CAMERA INSPECTION WILL BE NECESSARY AND APPROPRIATE.  BUT IT NEED
NOT BE AUTOMATIC.  AN AGENCY SHOULD BE GIVEN THE OPPORTUNITY, BY MEANS
OF DETAILED AFFIDAVITS OR ORAL TESTIMONY, TO ESTABLISH TO THE
SATISFACTION OF THE DISTRICT COURT THAT THE DOCUMENTS SOUGHT FALL
CLEARLY BEYOND THE RANGE OF MATERIAL THAT WOULD BE AVAILABLE TO A
PRIVATE PARTY IN LITIGATION WITH THE AGENCY.  THE BURDEN IS, OF COURSE,
ON THE AGENCY RESISTING DISCLOSURE, 5 U.S.C. 552(A)(3), AND IF IT FAILS
TO MEET ITS BURDEN WITHOUT IN CAMERA INSPECTION, THE DISTRICT COURT MAY
ORDER SUCH INSPECTION.  BUT THE AGENCY MAY DEMONSTRATE, BY SURROUNDING
CIRCUMSTANCES, THAT PARTICULAR DOCUMENTS ARE PURELY ADVISORY AND
CONTAIN NO SEPARABLE, FACTUAL INFORMATION.  A REPRESENTATIVE DOCUMENT
OF THOSE SOUGHT MAY BE SELECTED FOR IN CAMERA INSPECTION.  AND, OF
COURSE, THE AGENCY MAY ITSELF DISCLOSE THE FACTUAL PORTIONS OF THE
CONTESTED DOCUMENTS AND ATTEMPT TO SHOW, AGAIN BY CIRCUMSTANCES, THAT
THE EXCISED PORTIONS CONSTITUTE THE BAREBONES OF PROTECTED MATTER.  IN
SHORT, IN CAMERA INSPECTION OF ALL DOCUMENTS IS NOT A NECESSARY OR
INEVITABLE TOOL IN EVER CASE.  OTHERS ARE AVAILABLE.  CF. UNITED STATES
V. REYNOLDS, 345 U.S. 1 (1953).  IN THE PRESENT CASE, THE PETITIONERS
PROCEEDED ON THE THEORY THAT ALL OF THE NINE DOCUMENTS WERE EXEMPT FROM
DISCLOSURE IN THEIR ENTIRETY UNDER EXEMPTION 5 BY VIRTUE OF THEIR USE
IN THE DECISIONMAKING PROCESS.  ON REMAND, PETITIONERS ARE ENTITLED TO
ATTEMPT TO DEMONSTRATE THE PROPRIETY OF WITHHOLDING ANY DOCUMENTS, OR
PORTIONS THEREOF, BY MEANS SHORT OF SUBMITTING THEM FOR IN CAMERA
INSPECTION. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE REHNQUIST TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/0/  BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY NORMAN
DORSEN, MELVIN L. WULF, AND SANFORD JAY ROSEN FOR THE AMERICAN CIVIL
LIBERTIES UNION, AND BY MARVIN M. KARPATKIN AND MICHAEL N. POLLET FOR
THE CONSUMERS UNION OF UNITED STATES, INC. 

/1/  A SEPARATE ACTION WAS BROUGHT TO ENJOIN THE TEST ITSELF. 
COMMITTEE FOR NUCLEAR RESPONSIBILITY V. SEABORG (DC, CIV. ACTION NO.
1346-71).  AFTER ADVERSE DECISIONS BELOW, PLAINTIFFS IN THAT CASE
APPLIED FOR AN INJUNCTION IN THIS COURT.  ON NOVEMBER 6, 1971, WE
DENIED THE APPLICATION, COMMITTEE FOR NUCLEAR RESPONSIBILITY V.
SCHLESINGER, 404 U.S. 917, AND THE TEST WAS CONDUCTED THAT SAME DAY. 

IT SHOULD BE NOTED THAT IN THE DISTRICT COURT RESPONDENTS STATED
THAT THEY "HAVE EXHAUSTED THEIR ADMINISTRATIVE REMEDIES (AND) . . .
HAVE COMPLIED WITH ALL APPLICABLE REGULATIONS."  PETITIONERS DID NOT
CONTEST THOSE ASSERTIONS. 

/2/  PETITIONERS ALSO MOVED FOR DISMISSAL OF THE SUIT INSOFAR AS
RESPONDENTS SOUGHT DISCLOSURE OF THE DOCUMENTS IN THEIR OFFICIAL
CAPACITIES AS MEMBERS OF CONGRESS.  THE DISTRICT COURT GRANTED THIS
MOTION, BUT THE COURT OF APPEALS DID NOT REACH THE ISSUE.  ACCORDINGLY,
THE ISSUE IS NOT BEFORE THIS COURT. 

/3/  ACCORDING TO THE IRWIN AFFIDAVIT, THE REPORT CONTAINED THE
FOLLOWING DOCUMENTS: 

A. A COVERING MEMORANDUM FROM MR. IRWIN TO THE PRESIDENT, DATED JULY
17, 1971.  THIS MEMORANDUM IS CLASSIFIED TOP SECRET PURSUANT TO
EXECUTIVE ORDER 10501. 

B. THE REPORT OF THE UNDER SECRETARIES COMMITTEE.  THIS REPORT WAS
ALSO CLASSIFIED TOP SECRET.  ATTACHED TO THE REPORT WERE ADDITIONAL
DOCUMENTS: 

1.  A LETTER, CLASSIFIED SECRET, FROM THE CHAIRMAN OF THE ATOMIC
ENERGY COMMISSION (AEC) TO MR. IRWIN. 

2.  A REPORT, CLASSIFIED TOP SECRET, FROM THE DEFENSE PROGRAM REVIEW
COMMITTEE, OF WHICH DR. HENRY KISSINGER WAS THE CHAIRMAN. 

3.  THE ENVIRONMENTAL IMPACT STATEMENT ON THE PROPOSED CANNIKIN
TEST, PREPARED BY THE AEC IN 1971, PURSUANT TO SEC. 102(C) OF THE
NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, 83 STAT. 853, 42 U.S.C.
4332(C).  THIS DOCUMENT HAD ALWAYS BEEN "PUBLICLY AVAILABLE" AND A COPY
WAS ATTACHED TO THE IRWIN AFFIDAVIT.     4.  A TRANSCRIPT OF AN ORAL
BRIEFING GIVEN BY THE AEC TO THE COMMITTEE.  THIS DOCUMENT WAS
CLASSIFIED SECRET. 

5.  A MEMORANDUM FROM THE COUNCIL ON ENVIRONMENTAL QUALITY TO MR.
IRWIN.  THIS MEMORANDUM WAS SEPARATELY UNCLASSIFIED. 

C. IN ADDITION TO THE COVERING MEMORANDUM AND THE COMMITTEE'S REPORT
(WITH ATTACHED DOCUMENTS), WERE THREE LETTERS THAT HAD BEEN TRANSMITTED
TO MR. IRWIN: 

1.  A LETTER FROM MR. WILLIAM RUCKELSHAUS, FOR THE ENVIRONMENTAL
PROTECTION AGENCY.  THIS LETTER WAS CLASSIFIED TOP SECRET, BUT HAS NOW
BEEN DECLASSIFIED. 

2.  A LETTER FROM MR. RUSSEL TRAIN, FOR THE COUNCIL ON ENVIRONMENTAL
QUALITY.  ALTHOUGH THE IRWIN AFFIDAVIT STATES THAT THIS LETTER WAS
CLASSIFIED TOP SECRET, PETITIONERS CONCEDE THAT IT WAS SO CLASSIFIED
"ONLY BECAUSE IT WAS TO BE ATTACHED TO THE UNDERSECRETARY'S REPORT." 
BRIEF FOR PETITIONERS 6 N. 5. 

3.  A LETTER OF DR. EDWARD E. DAVID, JR., FOR THE OFFICE OF SCIENCE
AND TECHNOLOGY.  THIS LETTER IS CLASSIFIED TOP SECRET. 

/4/  THESE EIGHT DOCUMENTS WERE ALSO DESCRIBED AS HAVING BEEN
CLASSIFIED AS "RESTRICTED DATA . . . PURSUANT TO THE ATOMIC ENERGY ACT
OF 1954, AS AMENDED.  (42 U.S.C. (2014(Y)), 2161 AND 2162.)" 
PETITIONERS HAVE NOT ASSERTED THAT THESE PROVISIONS, STANDING ALONE,
WOULD JUSTIFY WITHHOLDING THE DOCUMENTS IN THIS CASE.  BUT SEE 5 U.S.C.
552(B)(3), RELATING TO MATTERS "SPECIFICALLY EXEMPTED FROM DISCLOSURE
BY STATUTE." 

/5/  THE ACT WAS PASSED IN 1966, 80 STAT. 383, AND CODIFIED IN ITS
PRESENT FORM IN 1967.  81 STAT. 54. 

/6/  THE REPORT STATES (IBID.): 

"IT IS THE PURPOSE OF THE PRESENT BILL . . . TO ESTABLISH A GENERAL
PHILOSOPHY OF FULL AGENCY DISCLOSURE UNLESS INFORMATION IS EXEMPTED
UNDER CLEARLY DELINEATED STATUTORY LANGUAGE . . . . 

"AT THE SAME TIME THAT A BROAD PHILOSOPHY OF 'FREEDOM OF
INFORMATION' IS ENACTED INTO LAW, IT IS NECESSARY TO PROTECT CERTAIN
EQUALLY IMPORTANT RIGHTS OF PRIVACY WITH RESPECT TO CERTAIN INFORMATION
IN GOVERNMENT FILES, SUCH AS MEDICAL AND PERSONNEL RECORDS.  IT IS ALSO
NECESSARY FOR THE VERY OPERATION OF OUR GOVERNMENT TO ALLOW IT TO KEEP
CONFIDENTIAL CERTAIN MATERIAL, SUCH AS THE INVESTIGATORY FILES OF THE
FEDERAL BUREAU OF INVESTIGATION. 

"IT IS NOT AN EASY TASK TO BALANCE THE OPPOSING INTERESTS, BUT IT IS
NOT AN IMPOSSIBLE ONE EITHER.  IT IS NOT NECESSARY TO CONCLUDE THAT TO
PROTECT ONE OF THE INTERESTS, THE OTHER MUST, OF NECESSITY, EITHER BE
ABROGATED OR SUBSTANTIALLY SUBORDINATED.  SUCCESS LIES IN PROVIDING A
WORKABLE FORMULA WHICH ENCOMPASSES, BALANCES, AND PROTECTS ALL
INTERESTS, YET PLACES EMPHASIS ON THE FULLEST RESPONSIBLE DISCLOSURE." 

SEE ALSO H.R.REP.NO. 1497, P. 6. 

/7/  EXECUTIVE ORDER 10501 HAS BEEN SUPERSEDED, AS OF JUNE 1, 1972,
BY EXECUTIVE ORDER 11652, 37 FED.REG.  5209, WHICH SIMILARLY PROVIDES
FOR THE CLASSIFICATION OF MATERIAL "IN THE INTEREST OF THE NATIONAL
DEFENSE OR FOREIGN RELATIONS." 

PORTIONS OF TWO DOCUMENTS FOR WHICH EXEMPTION 1 IS CLAIMED WERE
ORDERED DISCLOSED IN CONNECTION WITH THE ACTION BROUGHT TO ENJOIN THE
TEST (SEE N. 1, SUPRA).  PETITIONERS SEEK NO RELIEF WITH RESPECT TO ANY
MATTERS ALREADY DISCLOSED. 

/8/  THE HOUSE REPORT, IT IS TRUE, INDICATES THAT THE PRESIDENT MUST
DETERMINE THAT THE EXEMPTED MATTER BE KEPT SECRET.  CLEARLY, HOWEVER,
EXECUTIVE ORDER 10501 IS BASED ON PRESIDENTIAL AUTHORITY AND
SPECIFICALLY DELEGATES THAT AUTHORITY TO "THE DEPARTMENTS, AGENCIES,
AND OTHER UNITS OF THE EXECUTIVE BRANCH AS HEREINAFTER SPECIFIED."  3
CFR SEC. 281 (JAN. 1, 1970).  ONE MAY DISAGREE WITH THE SCOPE OF THE
DELEGATION OR WITH HOW THE DELEGATED AUTHORITY IS EXERCISED IN
PARTICULAR CASES, BUT THE AUTHORITY ITSELF NEVERTHELESS REMAINS THE
PRESIDENT'S AND IT IS HIS JUDGMENT THAT THE FIRST EXEMPTION WAS
DESIGNED TO RESPECT. 

/9/  BRIEF FOR RESPONDENTS 18.  RESPONDENTS NOTE THAT THE PREAMBLE
OF THE NEW EXECUTIVE ORDER 11652 (SEE N. 7, SUPRA), SPECIFIES THAT
MATERIAL CLASSIFIED PURSUANT TO ITS PROVISIONS "IS EXPRESSLY EXEMPTED
FROM PUBLIC DISCLOSURE BY SECTION 552(B)(1) OF TITLE 5, UNITED STATES
CODE."  EXECUTIVE ORDER 10501 HAS NO COMPARABLE RECITAL, BUT ONLY THE
SHEEREST RITUALISM WOULD DISTINGUISH THE EFFECT OF THE TWO ORDERS ON
ANY SUCH BASIS.  INDEED, RESPONDENTS' APPARENT ACCEPTANCE OF THE NEW
ORDER AS A JUSTIFIABLE GROUND FOR RESISTING DISCLOSURE UNDER EXEMPTION
1 POINTS TO THE ABSURDITY OF MAINTAINING THAT EXECUTIVE ORDER 10501 IS
IRRELEVANT TO THE ACT. 

/10/  THIS CONCLUSION IS NOT UNDERMINED BY THE NEW EXECUTIVE ORDER
11652, WHICH CALLS FOR THE SEPARATION OF DOCUMENTS INTO CLASSIFIED AND
UNCLASSIFIED PORTIONS, WHERE PRACTICABLE.  37 FED.REG.  5212.  ON THE
CONTRARY, THAT NEW ORDER PROVIDES THAT THE SEPARATING BE DONE BY THE
EXECUTIVE, NOT THE JUDICIARY, AND, LIKE ITS PREDECESSOR, PERMITS
DECLASSIFICATION OF MATERIAL ONLY IN ACCORDANCE WITH ITS PROCEDURES. 
MORE IMPORTANTLY, THE VERY EXISTENCE OF THE NEW ORDER DEMONSTRATES THAT
THE EXECUTIVE EXERCISES A CONTINUING RESPONSIBILITY FOR DETERMINING THE
NEED FOR SECRECY IN MATTERS THAT AFFECT NATIONAL DEFENSE AND FOREIGN
POLICY.  EXEMPTION 1 RECOGNIZES THAT RESPONSIBILITY BY LEAVING TO THE
EXECUTIVE, UNDER SUCH ORDERS AS SHALL BE DEVELOPED, THE DECISION OF
WHAT MAY BE DISCLOSED AND WHAT MUST BE KEPT SECRET. 

/11/  TITLE 5 U.S.C. 552 READS IN PART AS FOLLOWS: 

"(A) EACH AGENCY SHALL MAKE AVAILABLE TO THE PUBLIC INFORMATION AS
FOLLOWS: 

"(B) THIS SECTION DOES NOT APPLY TO MATTERS THAT ARE-- 

"(5) INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS OR LETTERS WHICH WOULD
NOT BE AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY IN LITIGATION
WITH THE AGENCY." 

THE THREE DOCUMENTS ARE:  THE CEQ MEMORANDUM TO MR. IRWIN, THE TRAIN
LETTER, AND THE RUCKELSHAUS LETTER, WHICH HAS NOW BEEN DECLASSIFIED. 

/12/  SEE GENERALLY 4 J.MOORE, FEDERAL PRACTICE PARA. 26.61 (1972)
AND AUTHORITIES COLLECTED (ID., AT PARA. 26.61(1) N. 2) (HEREINAFTER
MOORE); 8 J.WIGMORE, EVIDENCE 2378, 2379 (MCNAUGHTON REV. 1961)
(HEREINAFTER WIGMORE). 

THERE WERE EARLY DISPUTES OVER THE ISSUE OF EXECUTIVE PRIVILEGE. 
SEE CHIEF JUSTICE MARSHALL'S DECISIONS IN THE TRIAL OF UNITED STATES V.
BURR, 25 F.CAS.  30 (NO. 14,692D) AND 25 F.CAS.  187, 191-192 (NO.
14,694) (CCD VA. 1807), DISCUSSED IN 8 WIGMORE 2371, PP. 739-741 (3D
ED. 1940) AND 4 MOORE PARA. 26.61 (6.-4).  SEE ALSO WIGMORE SEC. 2378,
P. 805 AND N. 21. 

/13/  DIFFERENT RULES HAVE BEEN HELD TO APPLY IN EACH SITUATION. 
SEE, E.G., UNITED STATES V. ANDOLSCHEK, 142 F.2D 503, 506 (CA2 1944)
(L. HAND, J.)  (UNITED STATES AS PROSECUTOR); BANK LINE, LTD. V. UNITED
STATES, 76 F.SUPP.  801 (SDNY 1948) (UNITED STATES AS DEFENDANT). 
MOREOVER, IN ACTIONS UNDER THE FREEDOM OF INFORMATION ACT, COURTS ARE
NOT GIVEN THE OPTION TO IMPOSE ALTERNATIVE SANCTIONS-- SHORT OF
COMPELLED DISCLOSURE-- SUCH AS STRIKING A PARTICULAR DEFENSE OR
DISMISSING THE GOVERNMENT'S ACTION. 

/14/  SEE, E.G., MACHIN V. ZUCKERT, 114 U.S.APP.D.C. 335, 316 F.2D
336, CERT. DENIED, 375 U.S. 896 (1963) (AIR FORCE AIRCRAFT ACCIDENT
INVESTIGATION REPORT); BOEING AIRPLANE CO. V. COGGESHALL, 108
U.S.APP.D.C. 106, 112-113, 280 F.2D 654, 660-661 (1960) (RENEGOTIATION
BOARD DOCUMENTS); OLSON RUG CO. V. NLRB, 291 F.2D 655, 662 (CA7 1961)
(NO CLAIM THAT NLRB DOCUMENTS ARE "EXCLUSIVELY POLICY
RECOMMENDATIONS"); CARL ZEISS STIFTUNG V. V.E.B. CARL ZEISS, JENA, 40
F.R.D. 318, 327 (DC 1966), AFF'D, 128 U.S.APP.D.C. 10, 384 F.2D 979,
CERT, DENIED, 389 U.S. 952 (1967) (DISCOVERY DENIED BECAUSE DOCUMENTS
"WHOLLY OF OPINIONS, RECOMMENDATIONS AND DELIBERATIONS"); MCFADDEN V.
AVCO CORP., 278 F.SUPP.  57, 59-60 (MD ALA. 1967), AND CASES CITED
THEREIN. 

IN UNITED STATES V. COTTON VALLEY OPERATORS COMM., 9 F.R.D. 719, 720
(WD LA. 1949), AFF'D BY EQUALLY DIVIDED COURT, 339 U.S. 940 (1950), THE
UNITED STATES OFFERED TO FILE "AN ABSTRACT OF FACTUAL INFORMATION"
CONTAINED IN THE CONTESTED DOCUMENTS (FBI REPORTS). 

/15/  SEE, E.G., MACHIN V. ZUCKERT, SUPRA, AT 340, 316 F.2D, AT 341
(PRIVATE TORT ACTION; DISCOVERY OF AIR FORCE AIRCRAFT ACCIDENT
INVESTIGATION REPORT); BOEING AIRPLANE CO. V. COGGESHALL, SUPRA, AT
114, 280 F.2D, AT 662 (EXCESS PROFITS TAX REDETERMINATION); OLSON RUG
CO. V. NLRB, SUPRA, AT 662 (DISCOVERY FOR USE IN DEFENSE AGAINST
CONTEMPT PROCEEDINGS); O'KEEFE V. BOEING CO., 38 F.R.D. 329, 336 (SDNY
1965) (PRIVATE TORT ACTION; AIR FORCE INVESTIGATION REPORTS); ROSEE V.
BOARD OF TRADE, 36 F.R.D. 684, 687-688 (ND ILL. 1965); UNITED STATES V.
COTTON VALLEY OPERATORS COMM., SUPRA (CIVIL ANTITRUST SUIT).  CF.
UNITED STATES V. PROCTER & GAMBLE CO., 25 F.R.D. 485, 492 (NJ 1960)
(CRIMINAL ANTITRUST PROSECUTION).  SEE WIGMORE SEC. 2379, P. 812. 

IN KAISER ALUMINUM & CHEMICAL CORP. V. UNITED STATES, 141 CT.CL. 38,
157 F.SUPP.  939 (1958), WHERE IN CAMERA INSPECTION OF A DOCUMENT WAS
REFUSED BECAUSE OF PLAINTIFF'S FAILURE TO MAKE A DEFINITE SHOWING OF
NECESSITY, ID., AT 50, 157 F.SUPP.,AT 947, THE "OBJECTIVE FACTS"
CONTAINED IN THE DISPUTED DOCUMENT WERE "OTHERWISE AVAILABLE."  ID., AT
48-49, 157 F.SUPP.,AT 946. 

/16/  SEE, E.G., SOUCIE V. DAVID, 145 U.S.APP.D.C. 144, 448 F.2D 1067
(1971); GRUMMAN AIRCRAFT ENG. CORP. V. RENEGOTIATION BD., 138
U.S.APP.D.C. 147, 151, 425 F.2D 578, 582 (1970); BRISTOL-MYERS CO. V.
FTC, 138 U.S.APP.D.C. 22, 424 F.2D 935 (1970); INTERNATIONAL PAPER CO.
V. FPC, 438 F.2D 1349, 1358-1359 (CA 2), CERT. DENIED, 404 U.S. 827
(1971); GENERAL SERVICES ADMIN. V. BENSON, 415 F.2D 878 (CA 9 1969),
AFF'G 289 F.SUPP.  590 (WD WASH. 1968); LONG ISLAND R. CO. V. UNITED
STATES, 318 F.SUPP.  490, 499 N. 9 (EDNY 1970); CONSUMERS UNION V.
VETERANS ADMIN., 301 F.SUPP.  796 (SDNY 1969), APPEAL DISMISSED AS
MOOT, 436 F.2D 1363 (CA2 1971); OLSEN V. CAMP, 328 F.SUPP.  728, 731
(ED MICH. 1970); RELIABLE TRANSFER CO. V. UNITED STATES, 53 F.R.D. 24
EDNY 1971). 

THE PROPOSED FEDERAL RULES OF EVIDENCE APPEAR TO RECOGNIZE THIS
CONSTRUCTION OF EXEMPTION 5.  PROPOSED RULE 509(A)(2)(A) DEFINES
"OFFICIAL INFORMATION" TO INCLUDE "INTRAGOVERNMENTAL OPINIONS OR
RECOMMENDATIONS SUBMITTED FOR CONSIDERATION IN THE PERFORMANCE OF
DECISIONAL OR POLICYMAKING FUNCTIONS."  RULE 509(C) FURTHER PROVIDES
THAT "(IN THE CASE OF PRIVILEGE CLAIMED FOR OFFICIAL INFORMATION THE
COURT MAY REQUIRE EXAMINATION IN CAMERA OF THE INFORMATION ITSELF." 

/17/  HEARINGS ON S. 1160, S. 1336, S. 1758, AND S. 1879 BEFORE THE
SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., 7 (1965)
(HEREINAFTER 1965 SENATE HEARINGS).  THIS EXEMPTION ITSELF HAD BEEN
BROADENED DURING ITS COURSE THROUGH THE SENATE IN THE 88TH CONGRESS. 
THE EXEMPTION ORIGINALLY APPLIED ONLY TO INTERNAL MEMORANDA "RELATING
TO THE CONSIDERATION AND DISPOSITION OF ADJUDICATORY AND RULEMAKING
MATTERS."  SECTION 3(C) OF S. 1666, 88TH CONG., 2D SESS. (1964),
INTRODUCED IN 110 CONG.REC.  17086.  THAT EARLY FORMULATION CAME UNDER
ATTACK FOR NOT SUFFICIENTLY PROTECTING MATERIAL DEALING WITH GENERAL
POLICY MATTERS NOT DIRECTLY RELATED TO ADJUDICATION OR RULEMAKING.  SEE
HEARINGS ON S. 1666 AND S. 1663 BEFORE THE SUBCOMMITTEE ON
ADMINISTRATIVE PRACTICE AND PROCEDURE OF THE SENATE COMMITTEE ON THE
JUDICIARY, 88TH CONG., 1ST SESS., 202-203, 247 (1963). 

/18/  SEE 1965 SENATE HEARINGS 36, 94-95, 112-113, 205, 236-237,
244, 366-367, 382-383, 402-403, 406-407, 417, 437, 445-446, 450, 490. 
SEE 1965 HOUSE HEARINGS 27-28, 49, 208, 220, 223-224, 229-230, 245-246,
255-257.  EXAMPLES OF THESE MANY STATEMENTS ARE: 

FEDERAL AVIATION ADMINISTRATION (1965 SENATE HEARINGS 446); 

"FEW RECORDS WOULD BE ENTIRELY DEVOID OF FACTUAL DATA, THUS LEAVING
PAPERS ON LAW AND POLICY RELATIVELY UNPROTECTED.  STAFF WORKING PAPERS
AND REPORTS PREPARED FOR USE WITHIN THE AGENCY OF THE EXECUTIVE BRANCH
WOULD NOT BE PROTECTED BY THE PROPOSED EXEMPTIONS." 

DEPARTMENT OF COMMERCE (1965 SENATE HEARINGS 406): 

"UNDER THIS PROVISION, INTERNAL MEMORANDUMS DEALING WITH MIXED
QUESTIONS OF FACT, LAW AND POLICY COULD WELL BECOME PUBLIC
INFORMATION." 

/19/  TR. OF ORAL ARG. 23. 

MR. JUSTICE STEWART, CONCURRING. 

THIS CASE PRESENTS NO CONSTITUTIONAL CLAIMS, AND NO ISSUES REGARDING
THE NATURE OR SCOPE OF "EXECUTIVE PRIVILEGE."  IT INVOLVES NO EFFORT TO
INVOKE JUDICIAL POWER TO REQUIRE ANY DOCUMENTS TO BE RECLASSIFIED UNDER
THE MANDATE OF THE NEW EXECUTIVE ORDER 11652.  THE CASE BEFORE US
INVOLVES ONLY THE MEANING OF TWO EXEMPTIVE PROVISIONS OF THE SO-CALLED
FREEDOM OF INFORMATION ACT, 5 U.S.C. 552. 

MY BROTHER DOUGLAS SAYS THAT THE COURT MAKES A "SHAMBLES" OF THE
ANNOUNCED PURPOSE OF THAT ACT.  BUT IT IS CONGRESS, NOT THE COURT, THAT
IN SEC. 552(B)(1) HAS ORDAINED UNQUESTIONING DEFERENCE TO THE
EXECUTIVE'S USE OF THE "SECRET" STAMP.  AS THE OPINION OF THE COURT
DEMONSTRATES, THE LANGUAGE OF THE EXEMPTION, CONFIRMED BY ITS
LEGISLATIVE HISTORY, PLAINLY WITHHOLDS FROM DISCLOSURE MATTERS
"SPECIFICALLY REQUIRED BY EXECUTIVE ORDER TO BE KEPT SECRET IN THE
INTEREST OF THE NATIONAL DEFENSE OR FOREIGN POLICY."  IN SHORT, ONCE A
FEDERAL COURT HAS DETERMINED THAT THE EXECUTIVE HAS IMPOSED THAT
REQUIREMENT, IT MAY GO NO FURTHER UNDER THE ACT. 

ONE WOULD SUPPOSE THAT A NUCLEAR TEST THAT ENGENDERED FIERCE
CONTROVERSY WITHIN THE EXECUTIVE BRANCH OF OUR GOVERNMENT WOULD BE
PRECISELY THE KIND OF EVENT THAT SHOULD BE OPENED TO THE FULLEST
POSSIBLE DISCLOSURE CONSISTENT WITH LEGITIMATE INTERESTS OF NATIONAL
DEFENSE.  WITHOUT SUCH DISCLOSURE, FACTUAL INFORMATION AVAILABLE TO THE
CONCERNED EXECUTIVE AGENCIES CANNOT BE CONSIDERED BY THE PEOPLE OR
EVALUATED BY THE CONGRESS.  AND WITH THE PEOPLE AND THEIR
REPRESENTATIVES REDUCED TO A STATE OF IGNORANCE, THE DEMOCRATIC PROCESS
IS PARALYZED.     BUT THE COURT'S OPINION DEMONSTRATES THAT CONGRESS
HAS CONSPICUOUSLY FAILED TO ATTACK THE PROBLEM THAT MY BROTHER DOUGLAS
DISCUSSES.  INSTEAD, IT HAS BUILT INTO THE FREEDOM OF INFORMATION ACT
AN EXEMPTION DECISION TO STAMP A DOCUMENT "SECRET," HOWEVER CYNICAL,
MYOPIC, OR EVEN CORRUPT THAT DECISION MIGHT HAVE BEEN. 

THE OPINION OF MY BROTHER BRENNAN DISSENTING IN PART MAKES AN
ADMIRABLY VALIANT EFFORT TO DEFLECT THE IMPACT OF THIS RIGID
EXEMPTION.  HIS DISSENT FOCUSES ON THE STATUTORY REQUIREMENT THAT "THE
COURT SHALL DETERMINE THE MATTER DE NOVO . . . ."  BUT THE ONLY
"MATTER" TO BE DETERMINED DE NOVO UNDER SEC. 552(B)(1) IS WHETHER IN
FACT THE PRESIDENT HAS REQUIRED BY EXECUTIVE ORDER THAT THE DOCUMENTS
IN QUESTION ARE TO BE KEPT SECRET.  UNDER THE ACT AS WRITTEN, THAT IS
THE END OF A COURT'S INQUIRY.  /1/ 

AS THE COURT POINTS OUT, "CONGRESS COULD CERTAINLY HAVE PROVIDED
THAT THE EXECUTIVE BRANCH ADOPT NEW PROCEDURES OR IT COULD HAVE
ESTABLISHED ITS OWN PROCEDURES-- SUBJECT ONLY TO WHATEVER LIMITATIONS
THE EXECUTIVE PRIVILEGE MAY BE HELD TO IMPOSE UPON SUCH CONGRESSIONAL
ORDERING., BUT IN ENACTING SEC. 552(B)(1) CONGRESS CHOSE, INSTEAD, TO
DECREE BLIND ACCEPTANCE OF EXECUTIVE FIAT. 

/1/  SIMILARLY RIGID IS SEC. 552(B)(3), WHICH FORBIDS DISCLOSURE OF
MATERIALS THAT ARE "SPECIFICALLY EXEMPTED FROM DISCLOSURE BY STATUTE." 
HERE, TOO, THE ONLY "MATTER" TO BE DETERMINED IN A DISTRICT COURT'S DE
NOVO INQUIRY IS THE FACTUAL EXISTENCE OF SUCH A STATUTE, REGARDLESS OF
HOW UNWISE, SELF-PROTECTIVE, OR INADVERTENT THE ENACTMENT MIGHT BE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING IN PART AND DISSENTING IN PART. 

THE COURT HOLDS TODAY THAT THE FREEDOM OF INFORMATION ACT, 5 U.S.C.
552, AUTHORIZES THE DISTRICT COURT TO MAKE AN IN CAMERA INSPECTION OF
DOCUMENTS CLAIMED TO BE EXEMPT FROM PUBLIC DISCLOSURE UNDER EXEMPTION 5
OF THE ACT.  IN ADDITION, THE COURT CONCLUDES THAT, AS AN EXCEPTION TO
THIS RULE, THE GOVERNMENT MAY, IN AT LEAST SOME INSTANCES, ATTEMPT TO
AVOID IN CAMERA INSPECTION THROUGH USE OF DETAILED AFFIDAVITS OR ORAL
TESTIMONY.  I CONCUR IN THOSE ASPECTS OF THE COURT'S OPINION.  IN MY
VIEW, HOWEVER, THOSE PROCEDURES SHOULD ALSO GOVERN MATTERS FOR WHICH
EXEMPTION 1 IS CLAIMED, AND I THEREFORE DISSENT FROM THE COURT'S
HOLDING TO THE CONTRARY.  I FIND NOTHING WHATEVER ON THE FACE OF THE
STATUTE OR IN ITS LEGISLATURE HISTORY THAT DISTINGUISHES THE TWO
EXEMPTIONS IN THIS RESPECT, AND THE COURT SUGGESTS NONE.  RATHER, I
AGREE WITH MY BROTHER DOUGLAS THAT THE MANDATE OF SEC. 552(A)(3)-- "THE
COURT SHALL DETERMINE THE MATTER DE NOVO AND THE BURDEN IS ON THE
AGENCY TO SUSTAIN ITS ACTION"-- IS THE PROCEDURE THAT CONGRESS
PRESCRIBED FOR BOTH EXEMPTIONS. 

THE COURT HOLDS THAT EXEMPTION 1 IMMUNIZES FROM JUDICIAL SCRUTINY
ANY DOCUMENT CLASSIFIED PURSUANT TO EXECUTIVE ORDER 10501, 3 CFR 280
(JAN. 1, 1970).  /1/  IN REACHING THIS RESULT, HOWEVER, THE COURT
ADOPTS A CONSTRUCTION OF EXEMPTION 1 THAT IS FLATLY INCONSISTENT WITH
THE LEGISLATIVE HISTORY AND, INDEED, THE UNAMBIGUOUS LANGUAGE OF THE
ACT ITSELF.  /2/  IN PLAIN WORDS, EXEMPTION 1 EXEMPTS FROM DISCLOSURE
ONLY MATERIAL "SPECIFICALLY REQUIRED BY EXECUTIVE ORDER TO BE KEPT
SECRET IN THE INTEREST OF THE NATIONAL DEFENSE OR FOREIGN POLICY." 
EMPHASIS ADDED.)  EXECUTIVE ORDER 10501, HOWEVER, WHICH WAS PROMULGATED
13 YEARS BEFORE THE PASSAGE OF THE ACT, DOES NOT REQUIRE THAT ANY
SPECIFIC DOCUMENTS BE CLASSIFIED.  RATHER, THE EXECUTIVE ORDER SIMPLY
DELEGATES THE RIGHT TO CLASSIFY TO AGENCY HEADS, WHO ARE EMPOWERED TO
CLASSIFY INFORMATION AS CONFIDENTIAL, SECRET, OR TOP SECRET.  THUS, THE
CLASSIFICATION DECISION IS LEFT TO THE SOLE DISCRETION OF THESE AGENCY
HEADS.  MOREOVER, IN EXERCISING THIS DISCRETION, AGENCY HEADS ARE NOT
REQUIRED TO EXAMINE EACH DOCUMENT SEPARATELY TO DETERMINE THE NEED FOR
SECRECY BUT, INSTEAD, MAY ADOPT BLANKET CLASSIFICATIONS, WITHOUT REGARD
TO THE CONTENT OF ANY PARTICULAR DOCUMENT.  THUS, AS SECS. 3(B) AND
3(C) OF THE ORDER MAKE CLEAR, MATTERS FOR WHICH THERE IS NO NEED FOR
SECRECY "IN THE INTEREST OF THE NATIONAL DEFENSE OR FOREIGN POLICY" MAY
BE INDISCRIMINATELY CLASSIFIED IN CONJUNCTION WITH THOSE MATTERS FOR
WHICH THERE IS A GENUINE NEED FOR SECRECY: 

     3(B) "PHYSICALLY CONNECTED DOCUMENTS.  THE CLASSIFICATION OF A

  FILE OR GROUP OF PHYSICALLY CONNECTED DOCUMENTS SHALL BE AT LEAST

  AS HIGH AS THAT OF THE MOST HIGHLY CLASSIFIED DOCUMENT THEREIN. 

  DOCUMENTS SEPARATED FROM THE FILE OR GROUP SHALL BE HANDLED IN

 ACCORDANCE WITH THEIR INDIVIDUAL DEFENSE CLASSIFICATION." 

     3(C) "MULTIPLE CLASSIFICATION.  A DOCUMENT, PRODUCT, OR

  SUBSTANCE SHALL BEAR A CLASSIFICATION AT LEAST AS HIGH AS THAT OF

  ITS HIGHEST CLASSIFIED COMPONENT.  THE DOCUMENT, PRODUCT, OR

  SUBSTANCE SHALL BEAR ONLY ONE OVER-ALL CLASSIFICATION,

  NOTWITHSTANDING THAT PAGES, PARAGRAPHS, SECTIONS, OR COMPONENTS

  THEREOF BEAR DIFFERENT CLASSIFICATIONS." 

EVEN THE PETITIONERS CONCEDE, /3/  NO DOUBT IN RESPONSE TO THE
"SPECIFICALLY REQUIRED" STANDARD OF SEC. 552(B)(1) AND THE
"SPECIFICALLY STATED" REQUIREMENT OF SEC. 552(C), /4/  THAT DOCUMENTS
CLASSIFIED PURSUANT TO SEC. 3(B) OF EXECUTIVE ORDER 10501 CANNOT
QUALIFY UNDER EXEMPTION 1.  INDEED, PETITIONERS APPARENTLY ACCEPT THE
CONCLUSION OF THE COURT OF APPEALS THAT AS TO SEC. 3(B): 

"THIS COURT SEES NO BASIS FOR WITHHOLDING ON SECURITY GROUNDS A
DOCUMENT THAT, ALTHOUGH SEPARATELY UNCLASSIFIED, IS REGARDED SECRET
MERELY BECAUSE IT HAS BEEN INCORPORATED INTO A SECRET FILE.  TO THE
EXTENT THAT OUR POSITION IN THIS RESPECT IS INCONSISTENT WITH THE ABOVE
QUOTED PARAGRAPH OF SECTION 3 OF EXECUTIVE ORDER 10501, WE DEEM IT
REQUIRED BY THE TERMS AND PURPOSE OF THE (FREEDOM OF INFORMATION ACT),
ENACTED SUBSEQUENTLY TO THE EXECUTIVE ORDER."  150 U.S.APP.D.C.,AT 236,
464 F.2D, AT 745. 

NEVERTHELESS, PETITIONERS MAINTAIN THAT INFORMATION CLASSIFIED
PURSUANT TO SEC. 3(C) OF THE ORDER IS EXEMPT FROM DISCLOSURE UNDER
EXEMPTION 1.  THE COURT OF APPEALS REJECTED THAT CONTENTION, AND IN MY
VIEW, CORRECTLY.  THE COURT OF APPEALS STATED: 

     "THE SAME REASONING APPLIES TO THIS PROVISION AS TO THE ONE

  DEALING WITH PHYSICALLY-CONNECTED DOCUMENTS.  SECRECY BY

  ASSOCIATION IS NOT FAVORED.  IF THE NON-SECRET REMAINDER AND MAY

  BE READ SEPARATELY WITHOUT DISTORTION OF MEANING, THEY TOO SHOULD

  BE DISCLOSED."  150 U.S.APP.D.C.,AT 237, 464 F.2D, AT 746. 

PETITIONERS' ARGUMENT, ADOPTED BY THE COURT, IS THAT THIS
CONSTRUCTION OF THE ACT IMPUTES TO CONGRESS AN INTENT TO AUTHORIZE
JUDGES INDEPENDENTLY TO REVIEW THE EXECUTIVE'S DECISION TO CLASSIFY
DOCUMENTS IN THE INTEREST OF THE NATIONAL DEFENSE OR FOREIGN POLICY. 
THAT ARGUMENT SIMPLY MISCONCEIVES THE HOLDING OF THE COURT OF APPEALS. 
INFORMATION CLASSIFIED PURSUANT TO SEC. 3(C), IT MUST BE EMPHASIZED,
MAY RECEIVE THE STAMP OF SECRECY, NOT BECAUSE SUCH SECRECY IS NECESSARY
TO PROMOTE "THE NATIONAL DEFENSE OR FOREIGN POLICY," BUT SIMPLY BECAUSE
IT CONSTITUTES A PART OF SUCH OTHER INFORMATION WHICH GENUINELY MERITS
SECRECY.  THUS, TO RECTIFY THIS SITUATION, THE COURT OF APPEALS ORDERED
ONLY THAT THE DISTRICT COURT IN CAMERA DETERMINE "(IF THE NON-SECRET
COMPONENTS ARE SEPARABLE FROM THE SECRET REMAINDER AND MAY BE READ
SEPARATELY WITHOUT DISTORTION OF MEANING . . . ."  THE DETERMINATION
WHETHER ANY COMPONENTS ARE IN FACT "NON-SECRET" IS LEFT EXCLUSIVELY TO
THE AGENCY HEAD REPRESENTING THE EXECUTIVE BRANCH.  THE DISTRICT COURT
IS NOT AUTHORIZED TO DECLASSIFY OR TO RELEASE INFORMATION THAT THE
EXECUTIVE, IN ITS SOUND DISCRETION, DETERMINES MUST BE CLASSIFIED TO
"BE KEPT SECRET IN THE INTEREST OF THE NATIONAL DEFENSE OR FOREIGN
POLICY."  /5/  THE DISTRICT COURT'S AUTHORITY STOPS WITH THE INQUIRY
WHETHER THERE ARE COMPONENTS OF THE DOCUMENTS THAT WOULD NOT HAVE BEEN
INDEPENDENTLY CLASSIFIED AS SECRET.  IF THE DISTRICT COURT FINDS, ON IN
CAMERA INSPECTION, THAT THERE ARE SUCH COMPONENTS, AND THAT THEY CAN BE
READ SEPARATELY WITHOUT DISTORTION OF MEANING, THE DISTRICT COURT MAY
ORDER THEIR RELEASE.  THE DISTRICT COURT'S AUTHORITY TO MAKE THAT
DETERMINATION IS UNAMBIGUOUSLY STATED IN SEC. 552(A)(3):  "THE
(DISTRICT) COURT SHALL DETERMINE THE MATTER DE NOVO AND THE BURDEN IS
ON THE AGENCY TO SUSTAIN ITS ACTION."  THE COURT'S CONTRARY HOLDING IS
IN FLAT DEFIANCE OF THAT CONGRESSIONAL MANDATE.  /6/ 

INDEED, ONLY THE COURT OF APPEALS' CONSTRUCTION IS CONSISTENT WITH
THE CONGRESSIONAL PLAN IN ENACTING THE FREEDOM OF INFORMATION ACT.  WE
HAVE THE WORD OF BOTH HOUSES OF CONGRESS THAT THE DE NOVO PROCEEDING
REQUIREMENT WAS ENACTED EXPRESSLY "IN ORDER THAT THE ULTIMATE DECISION
AS TO THE PROPRIETY OF THE AGENCY'S ACTION IS MADE BY THE COURT AND
PREVENT IT FROM BECOMING MEANINGLESS JUDICIAL SANCTIONING OF AGENCY
DISCRETION."  S.REP.NO. 813, 89TH CONG., 1ST SESS., 8 (1965)
(HEREINAFTER CITED AS S.REP.NO. 813); H.R.REP.NO. 1497, 89TH CONG., 2D
SESS., 9 (1966) (HEREINAFTER CITED AS H.R.REP.NO. 1497).  WHAT WAS
GRANTED, AND PURPOSELY SO, WAS A BROAD GRANT TO THE DISTRICT COURT OF
"AUTHORITY WHENEVER IT CONSIDERS SUCH ACTION EQUITABLE AND APPROPRIATE
TO ENJOIN THE AGENCY FROM WITHHOLDING ITS RECORDS AND TO ORDER THE
PRODUCTION OF AGENCY RECORDS IMPROPERLY WITHHELD."  H.R.REP.NO. 1497,
P. 9.  AND TO UNDERSCORE ITS MEANING, CONGRESS REJECTED THE TRADITIONAL
RULE OF DEFERENCE TO ADMINISTRATIVE DETERMINATIONS BY "(PLACING THE
BURDEN OF PROOF UPON THE AGENCY" TO JUSTIFY THE WITHHOLDING.  S.REP.NO.
813, P. 8; H.R.REP.NO. 1497, P.9.  THE COURT'S REJECTION OF THE COURT
OF APPEALS' CONSTRUCTION IS INEXPLICABLE IN THE FACE OF THIS
OVERWHELMING EVIDENCE OF THE CONGRESSIONAL DESIGN. 

THE COURT'S RELIANCE ON ISOLATED REFERENCES TO EXECUTIVE ORDER 10501
IN THE CONGRESSIONAL PROCEEDINGS IS ERRONEOUS AND MISLEADING.  THE
COURT POINTS TO A SINGLE PASSING REFERENCE TO THE ORDER IN THE HOUSE
REPORT, WHICH EVEN A SUPERFICIAL READING REVEALS TO BE MERELY
SUGGESTIVE OF THE KINDS OF INFORMATION THAT THE EXECUTIVE BRANCH MIGHT
CLASSIFY.  NOTHING WHATEVER IN THE REPORT EVEN REMOTELY IMPLIES THAT
THE ORDER WAS TO BE RECOGNIZED AS IMMUNIZING FROM PUBLIC DISCLOSURE THE
ENTIRE FILE OF DOCUMENTS MERELY BECAUSE ONE OR EVEN A SINGLE PARAGRAPH
OF ONE HAS BEEN STAMPED SECRET.  THE COURT ALSO CALLS TO ITS SUPPORT
SOME COMMENTS OUT OF CONTEXT OF CONGRESSMEN MOSS AND GALLAGHER ON THE
HOUSE FLOOR.  BUT ON THEIR FACE, THESE COMMENTS DO NO MORE THAN CONFIRM
THAT EXEMPTION 1 WAS WRITTEN WITH AWARENESS OF THE EXISTENCE OF
EXECUTIVE ORDER 10501.  CERTAINLY, WHATEVER SIGNIFICANCE MAY BE
ATTACHED TO DEBATING POINTS IN CONSTRUING A STATUTE, /7/  THESE
COMMENTS HARDLY SUPPORT THE COURT'S CONCLUSION THAT A CLASSIFICATION
PURSUANT TO EXECUTIVE ORDER 10501, WITHOUT MORE, IMMUNIZES AN ENTIRE
DOCUMENT FROM DISCLOSURE UNDER EXEMPTION 1. 

EXECUTIVE ORDER 10501 WAS PROMULGATED MORE THAN A DECADE BEFORE THE
FREEDOM OF INFORMATION ACT WAS DEBATED IN CONGRESS.  YET, NO REFERENCE
TO THE ORDER CAN BE FOUND IN EITHER THE LANGUAGE OF THE ACT OR THE
SENATE REPORT.  UNDER THESE CIRCUMSTANCES, IT WOULD SEEM ODD, TO SAY
THE LEAST, TO ATTRIBUTE TO CONGRESS AN INTENT TO INCORPORATE "WITHOUT
REFERENCE" EXECUTIVE ORDER 10501 INTO EXEMPTION 1.  INDEED,
PETITIONERS' CONCESSION THAT "PHYSICALLY CONNECTED DOCUMENTS,"
CLASSIFIED UNDER SEC. 3(B) OF THE ORDER, ARE NOT IMMUNE FROM JUDICIAL
INSPECTION SERVES ONLY TO REINFORCE THE CONCLUSION THAT THE MERE FACT
OF CLASSIFICATION UNDER SEC. 3(C) CANNOT IMMUNIZE THE IDENTICAL
DOCUMENTS FROM JUDICIAL SCRUTINY. 

THE COURT'S REJECTION OF THE COURT OF APPEALS' CONSTRUCTION OF
EXEMPTION 1 IS PARTICULARLY INSUPPORTABLE IN LIGHT OF THE COGENT
CONFIRMATION OF ITS SOUNDNESS SUPPLIED BY THE EXECUTIVE BRANCH ITSELF. 
IN DIRECT RESPONSE TO THE ACT, ORDER 10501 HAS BEEN REVOKED AND
REPLACED BY ORDER 11652, WHICH EXPRESSLY REQUIRES CLASSIFICATION OF
DOCUMENTS IN THE MANNER THE COURT OF APPEALS REQUIRED THE DISTRICT
COURT TO ATTEMPT IN CAMERA.  THE ORDER, WHICH WAS ISSUED ON MARCH 8,
1972, AND BECAME EFFECTIVE ON JUNE 1, 1972, 37 FED.REG.  5209 (MAR. 10,
1972), EXPLICITLY ATTRIBUTES ITS FORM TO THE EXECUTIVE'S DESIRE TO
ACCOMMODATE ITS PROCEDURES TO THE OBJECTIVES OF THE FREEDOM OF
INFORMATION ACT: 

     "THE INTERESTS OF THE UNITED STATES AND ITS CITIZENS ARE BEST

  SERVED BY MAKING INFORMATION REGARDING THE AFFAIRS OF GOVERNMENT

  READILY AVAILABLE TO THE PUBLIC.  THIS CONCEPT OF AN INFORMED

  CITIZENRY IS REFLECTED IN THE FREEDOM OF INFORMATION ACT AND IN

  THE CURRENT PUBLIC INFORMATION POLICIES OF THE EXECUTIVE

  BRANCH." 

MOREOVER, IN HIS STATEMENT ACCOMPANYING THE PROMULGATION OF THE NEW
ORDER, THE PRESIDENT STATED:  "THE EXECUTIVE ORDER I HAVE SIGNED TODAY
IS BASED UPON . . . A REEXAMINATION OF THE RATIONALE UNDERLYING THE
FREEDOM OF INFORMATION ACT."  8 PRESIDENTIAL DOCUMENTS 542 (MAR. 13,
1972). 

THE NEW ORDER RECITES THAT "SOME OFFICIAL INFORMATION AND MATERIAL .
. . BEARS DIRECTLY ON THE EFFECTIVENESS OF OUR NATIONAL DEFENSE AND THE
CONDUCT OF OUR FOREIGN RELATIONS" AND THAT "(THIS OFFICIAL INFORMATION
OR MATERIAL, REFERRED TO AS CLASSIFIED INFORMATION OR MATERIAL IN THIS
ORDER, IS EXPRESSLY EXEMPTED FROM PUBLIC DISCLOSURE BY SECTION
552(B)(1) OF (THE FREEDOM OF INFORMATION ACT)."  THUS, THE EXECUTIVE
CLEARLY RECOGNIZED THAT EXEMPTION 1 APPLIES ONLY TO MATTER SPECIFICALLY
CLASSIFIED "IN THE INTEREST OF THE NATIONAL DEFENSE OR FOREIGN
POLICY."  AND IN AN EFFORT TO COMPLY WITH THE ACT'S MANDATE THAT
GENUINELY SECRET MATTERS BE CAREFULLY SEPARATED FROM THE NONSECRET
COMPONENTS, SEC. 4(A) OF THE NEW ORDER PROVIDES: 

     "DOCUMENTS IN GENERAL.  EACH CLASSIFIED DOCUMENT SHALL . . .
TO

  THE EXTENT PRACTICABLE, BE SO MARKED AS TO INDICATE WHICH

  PORTIONS ARE CLASSIFIED, AT WHAT LEVEL, AND WHICH PORTIONS ARE

  NOT CLASSIFIED IN ORDER TO FACILITATE EXCERPTING AND OTHER USE." 

THE PRESIDENT EMPHASIZED THIS REQUIREMENT IN HIS STATEMENT: 

     "A MAJOR SOURCE OF UNNECESSARY CLASSIFICATION UNDER THE OLD

  EXECUTIVE ORDER WAS THE PRACTICAL IMPOSSIBILITY OF DISCERNING

WHICH PORTIONS OF A CLASSIFIED DOCUMENT ACTUALLY REQUIRED

 CLASSIFICATION.  INCORPORATION OF ANY MATERIAL FROM A CLASSIFIED

  PAPER INTO ANOTHER DOCUMENT USUALLY RESULTED IN THE

  CLASSIFICATION OF THE NEW DOCUMENT, AND INNOCUOUS PORTIONS OF

  NEITHER PAPER COULD BE RELEASE."  8 PRESIDENTIAL DOCUMENTS 544

  (MAR. 13, 1972). 

IT IS OF COURSE TRUE, AS THE COURT OBSERVES, THAT THE ORDER
"PROVIDES THAT THE SEPARATING BE DONE BY THE EXECUTIVE, NOT THE
JUDICIARY . . . ."  ANTE, AT 85 N. 10.  BUT THAT FACT LENDS NO SUPPORT
TO A CONSTRUCTION OF EXEMPTION 1 PRECLUDING JUDICIAL INSPECTION TO
ENFORCE THE CONGRESSIONAL PURPOSE TO EFFECT RELEASE OF NONSECRET
COMPONENTS SEPARABLE FROM THE SECRET REMAINDER.  RATHER, THE
REQUIREMENT OF JUDICIAL INSPECTION, MADE EXPLICIT IN SEC. 552(A)(3), IS
THE KEYSTONE OF THE CONGRESSIONAL PLAN, EXPRESSLY DEEMED "ESSENTIAL IN
ORDER THAT THE ULTIMATE DECISION AS TO THE PROPRIETY OF THE AGENCY'S
ACTION IS MADE BY THE COURT (TO) PREVENT IT FROM BECOMING MEANINGLESS
JUDICIAL SANCTIONING OF AGENCY DISCRETION."  S.REP.NO. 813, P. 8;
H.R.REP.NO. 1497, P. 9.  IT COULD NOT BE MORE CLEAR, THEREFORE, THAT
CONGRESS SOUGHT TO MAKE CERTAIN THAT THE ORDINARY PRINCIPLE OF JUDICIAL
DEFERENCE TO AGENCY DISCRETION WAS DISCARDED UNDER THIS ACT.  THE
EXECUTIVE WAS NOT TO BE ALLOWED "TO FILE AN AFFIDAVIT STATING (THE)
CONCLUSION (THAT DOCUMENTS ARE EXEMPT) AND BY SO DOING FORECLOSE ANY
OTHER DETERMINATION OF THE FACT."  COWLES COMMUNICATIONS V. DEPARTMENT
OF JUSTICE, 325 F.SUPP.  726, 727 (ND CAL. 1971).  ACCORD, FRANKEL V.
SEC, 336 F.SUPP.  675, 677 N. 4 (SDNY 1971), REV'D ON OTHER GROUNDS,
460 F.2D 813 (CA2 1972); PHILADELPHIA NEWSPAPERS V. HUD, 343 F.SUPP. 
1176, 1180 (ED PA. 1972).  /8/ 

THE COURT'S INTERPRETATION OF EXEMPTION 1 AS A COMPLETE BAR TO
JUDICIAL INSPECTION OF MATTERS CLAIMED BY THE EXECUTIVE TO FALL WITHIN
IT WHOLLY FRUSTRATES THE OBJECTIVE OF THE FREEDOM OF INFORMATION ACT. 
THAT INTERPRETATION MAKES A NULLITY OF THE ACT'S REQUIREMENT OF DE NOVO
JUDICIAL REVIEW.  THE JUDICIAL ROLE BECOMES "MEANINGLESS JUDICIAL
SANCTIONING OF AGENCY DISCRETION," S.REP.NO. 813, P. 8; H.R.REP.NO.
1497, P. 9, THE VERY RESULT CONGRESS SOUGHT TO PREVENT BY INCORPORATING
THE DE NOVO REQUIREMENT. 

/1/  EXECUTIVE ORDER 10501 WAS REVOKED ON MARCH 8, 1972, AND REPLACED
WITH EXECUTIVE ORDER 11652, 37 FED.REG.  5209, WHICH BECAME EFFECTIVE
JUNE 1, 1972. 

/2/  "THE POLICY OF THE ACT REQUIRES THAT THE . . . EXEMPTIONS (BE
CONSTRUED NARROWLY)."  SOUCIE V. DAVID, 145 U.S.APP.D.C. 144, 157, 448
F.2D 1067, 1080 (1971).  "A BROAD CONSTRUCTION OF THE EXEMPTIONS WOULD
BE CONTRARY TO THE EXPRESS LANGUAGE OF THE ACT."  WELLFORD V. HARDIN,
444 F.2D 21, 25 (CA 4 1971). 

/3/  PETITION FOR CERT. 9 N. 4. 

/4/  SECTION 552(C) PROVIDES: 

"THIS SECTION DOES NOT AUTHORIZE WITHHOLDING OF INFORMATION OR LIMIT
THE AVAILABILITY OF RECORDS TO THE PUBLIC, EXCEPT AS SPECIFICALLY
STATED IN THIS SECTION.  THIS SECTION IS NOT AUTHORITY TO WITHHOLD
INFORMATION FROM CONGRESS." 

THE ACCOMPANYING SENATE REPORT EMPHASIZES THAT SEC. 552(C) PLACES A
HEAVY BURDEN ON THE GOVERNMENT TO JUSTIFY NONDISCLOSURE: 

"THE PURPOSE OF (SEC. 552(C)) IS TO MAKE IT CLEAR BEYOND DOUBT THAT
ALL MATERIALS OF THE GOVERNMENT ARE TO BE MADE AVAILABLE TO THE PUBLIC
BY PUBLICATION OR OTHERWISE UNLESS EXPLICITLY ALLOWED TO BE KEPT SECRET
BY ONE OF THE EXEMPTIONS IN (SEC. 552(B))."  S. REP. NO. 813, 89TH
CONG., 1ST SESS., 10 (1965). 

A COMMENTATOR COGENTLY ARGUES THAT THE "PULL OF THE WORD
'SPECIFICALLY' (IN SEC. 552(C)) IS TOWARD EMPHASIS ON (THE) STATUTORY
LANGUAGE" OF THE NINE STATED EXEMPTIONS.  THE "SPECIFICALLY STATED"
CLAUSE IN SEC. 552(C), HE NOTES, "IS OFTEN RELEVANT IN DETERMINING THE
PROPER INTERPRETATION OF PARTICULAR EXEMPTIONS."  K. DAVIS,
ADMINISTRATIVE LAW SEC. 3A.15, P. 142 (SUPP. 1970).  SEE ALSO DAVIS,
THE INFORMATION ACT:  A PRELIMINARY ANALYSIS, 34 U.CHI.L.REV.  761
(1967). 

FOR A DETAILED STUDY OF THE FREEDOM OF INFORMATION ACT AND ITS
BACKGROUND, SEE NOTE, COMMENTS ON PROPOSED AMENDMENTS TO SECTION 3 OF
THE ADMINISTRATIVE PROCEDURE ACT:  THE FREEDOM OF INFORMATION BILL, 40
NOTRE DAME LAW.  417 (1965). 

/5/  SEE DEVELOPMENTS IN THE LAW-- THE NATIONAL SECURITY INTEREST
AND CIVIL LIBERTIES, 85 HARV.L.REV.  1130, 1224-1225 (1972). 

/6/  "(GIVEN THE REQUIREMENT THAT A FILE OR DOCUMENT IS GENERALLY
CLASSIFIED AT THE HIGHEST LEVEL OF CLASSIFICATION OF ANY INFORMATION
ENCLOSED, IT WILL OFTEN BE THE CASE THAT A CLASSIFIED FILE WILL CONTAIN
INFORMATION THAT COULD BE RELEASED SEPARATELY TO THE PUBLIC.  BECAUSE
IT IS NOT 'SPECIFICALLY REQUIRED BY EXECUTIVE ORDER TO BE KEPT SECRET,'
SUCH INFORMATION IS NOT PRIVILEGED UNDER THE INFORMATION ACT.  TO
ENSURE THAT AN OVERALL CLASSIFICATION IS NOT BEING USED TO PROTECT
UNPRIVILEGED PAPERS, A REVIEWING COURT SHOULD INSPECT THE DOCUMENTS
SOUGHT BY A LITIGANT."  DEVELOPMENTS IN THE LAW, SUPRA, N. 5, AT 1223. 

/7/  SEE SCHWEGMANN BROS. V. CALVERT DISTILLERS CORP., 341 U.S. 384,
395, 397 (1951) (JACKSON, J., CONCURRING) (FRANKFURTER, J.,
DISSENTING). 

/8/  IN SUPPORT OF THEIR CLAIM THAT EXECUTIVE ORDER 10501
AUTOMATICALLY AND WITHOUT JUDICIAL REVIEW ACTIVATES THE EXEMPTION OF
SEC. 552(B)(1), PETITIONERS RELY UPON EPSTEIN V. RESOR, 421 F.2D 930
(CA 9 1970).  RATHER, EPSTEIN CONFIRMS THE COURT OF APPEALS'
INTERPRETATION OF THE ACT.  THE EPSTEIN COURT REFUSED A REQUEST TO
REVIEW IN CAMERA DOCUMENTS CLASSIFIED PURSUANT TO EXECUTIVE ORDER
10501, BUT ONLY BECAUSE THE GOVERNMENT, AT THE PLAINTIFF'S REQUEST, HAD
BEGUN A CURRENT REVIEW OF THE DOCUMENTS ON "A PAPER-BY-PAPER BASIS." 
MOREOVER, IN RESPONSE TO THE ARGUMENT THAT PETITIONERS ADVANCE HERE--
NAMELY, THAT THE MERE CLASSIFICATION OF A DOCUMENT PRECLUDES JUDICIAL
REVIEW-- EPSTEIN STATES: 

"(IN VIEW OF THE LEGISLATIVE PURPOSE TO MAKE IT EASIER FOR PRIVATE
CITIZENS TO SECURE GOVERNMENT INFORMATION, IT SEEMS MOST UNLIKELY THAT
(THE ACT) WAS INTENDED TO FORECLOSE AN (A)(3) JUDICIAL REVIEW OF THE
CIRCUMSTANCES OF EXEMPTION.  RATHER IT WOULD SEEM THAT (SUBSECTION) (B)
WAS INTENDED TO SPECIFY THE BASIS FOR WITHHOLDING UNDER (A)(3) AND THAT
JUDICIAL REVIEW DE NOVO WITH THE BURDEN OF PROOF ON THE AGENCY SHOULD
BE HAD AS TO WHETHER THE CONDITIONS OF EXEMPTION IN TRUTH EXIST."  421
F.2D, AT 932-933. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE STARTING POINT OF A DECISION USUALLY INDICATES THE RESULT.  MY
STARTING POINT IS WHAT I BELIEVE TO BE THE PHILOSOPHY OF CONGRESS
EXPRESSED IN THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552. 

HENRY STEELE COMMAGER, OUR NOTED HISTORIAN, RECENTLY WROTE: 

     "THE GENERATION THAT MADE THE NATION THOUGH SECRECY IN

  GOVERNMENT ONE OF THE INSTRUMENTS OF OLD WORLD TYRANNY AND

  COMMITTED ITSELF TO THE PRINCIPLE THAT A DEMOCRACY CANNOT

  FUNCTION UNLESS THE PEOPLE ARE PERMITTED TO KNOW WHAT THEIR

  GOVERNMENT IS UP TO.  NOW ALMOST EVERYTHING THAT THE PENTAGON AND

  THE CIA DO IS SHROUDED IN SECRECY.  NOT ONLY ARE THE AMERICAN

  PEOPLE NOT PERMITTED TO KNOW WHAT THEY ARE UP TO BUT EVEN THE

  CONGRESS AND, ONE SUSPECTS, THE PRESIDENT (WITNESS THE

  'UNAUTHORIZED' BOMBING OF THE NORTH LAST FALL AND WINTER) ARE

  KEPT IN DARKNESS."  THE NEW YORK REVIEW OF BOOKS, OCT. 5, 1972,

  P. 7. 

TWO DAYS AFTER WE GRANTED CERTIORARI IN THE CASE ON MARCH 6, 1972,
THE PRESIDENT REVOKED THE OLD EXECUTIVE ORDER 10501 AND SUBSTITUTED A
NEW ONE, EXECUTIVE ORDER 11652, DATED MARCH 8, 1972, AND EFFECTIVE JUNE
1, 1972.  THE NEW ORDER STATES IN ITS FIRST PARAGRAPH THAT:  "THE
INTERESTS OF THE UNITED STATES AND ITS CITIZENS ARE BEST SERVED BY
MAKING INFORMATION REGARDING THE AFFAIRS OF GOVERNMENT READILY
AVAILABLE TO THE PUBLIC.  THIS CONCEPT OF AN INFORMED CITIZENRY IS
REFLECTED IN THE FREEDOM OF INFORMATION ACT AND IN THE CURRENT PUBLIC
INFORMATION POLICIES OF THE EXECUTIVE BRANCH." 

WHILE "CLASSIFIED INFORMATION OR MATERIAL AS USED IN THE ORDER IS
EXEMPTED FROM PUBLIC DISCLOSURE, SEC. 4 OF THE ORDER STATES THAT EACH
CLASSIFIED DOCUMENT SHALL "TO THE EXTENT PRACTICABLE, BE SO MARKED AS
TO INDICATE WHICH PORTIONS ARE CLASSIFIED, AT WHAT LEVEL, AND WHICH
PORTIONS ARE NOT CLASSIFIED IN ORDER TO FACILITATE EXCERPTING AND OTHER
USE."  SEC. 4(A).  AND IT GOES ON TO SAY:  "MATERIAL CONTAINING
REFERENCES TO CLASSIFIED MATERIALS, WHICH REFERENCES DO NOT REVEAL
CLASSIFIED INFORMATION, SHALL NOT BE CLASSIFIED."  IBID. 

THE FREEDOM OF INFORMATION ACT DOES NOT CLASH WITH THE EXECUTIVE
ORDER.  INDEED, THE NEW EXECUTIVE ORDER PRECISELY MESHES WITH THE ACT
AND WITH THE CONSTRUCTION GIVEN IT BY THE COURT OF APPEALS.  SECTION
552(A)(3) OF THE ACT GIVES THE DISTRICT COURT "JURISDICTION TO ENJOIN
THE AGENCY FROM WITHHOLDING AGENCY RECORDS AND TO ORDER THE PRODUCTION
OF ANY AGENCY RECORDS IMPROPERLY WITHHELD FROM THE COMPLAINANT." 
THE DISTRICT COURT.  IT SAYS "THE COURT SHALL DETERMINE THE MATTER DE
NOVO AND THE BURDEN IS ON THE AGENCY TO SUSTAIN ITS ACTION." 

THE ACT AND THE EXECUTIVE ORDER READ TOGETHER MEAN AT THE VERY
MINIMUM THAT THE DISTRICT COURT HAS POWER TO DIRECT THE AGENCY IN
QUESTION TO GO THROUGH THE SUPPRESSED DOCUMENT AND MAKE THE PORTION-BY
PORTION CLASSIFICATION TO FACILITATE THE EXCERPTING AS REQUIRED BY THE
EXECUTIVE ORDER.  SECTION 552(A)(3) MEANS ALSO THAT THE DISTRICT COURT
MAY IN ITS DISCRETION COLLABORATE WITH THE AGENCY TO MAKE CERTAIN THAT
THE CONGRESSIONAL POLICY OF DISCLOSURE IS EFFECTUATED. 

THE COURT OF APPEALS, IN AN EXCEEDINGLY RESPONSIBLE OPINION,
DIRECTED THE DISTRICT COURT TO PROCEED AS FOLLOWS: 

WHERE MATERIAL IS SEPARATELY UNCLASSIFIED BUT NONETHELESS UNDER THE
UMBRELLA OF A "SECRET" FILE, THE DISTRICT COURT SHOULD MAKE SURE THAT
IT IS DISCLOSED UNDER THE ACT.  THIS SEEMS CLEAR FROM SEC. 552(B) WHICH
STATES:  "THIS SECTION DOES NOT APPLY TO MATTERS THAT ARE-- (1)
SPECIFICALLY REQUIRED BY EXECUTIVE ORDER TO BE KEPT SECRET IN THE
INTEREST OF THE NATIONAL DEFENSE OR FOREIGN POLICY."  UNLESS THE
UNCLASSIFIED APPENDAGE TO A "SECRET" FILE FALLS UNDER SOME OTHER
EXCEPTION IN SEC. 552(B) IT SEEMS CLEAR THAT IT MUST BE DISCLOSED.  THE
ONLY OTHER EXCEPTION UNDER WHICH REFUGE IS NOW SOUGHT IS SUBSECTION
(B)(5) WHICH READS THAT THE SECTION DOES NOT APPLY TO "INTER-AGENCY OR
INTRA-AGENCY MEMORANDUMS OR LETTERS WHICH WOULD NOT BE AVAILABLE BY LAW
TO A PARTY OTHER THAN AN AGENCY IN LITIGATION WITH THE AGENCY." 

THIS EXEMPTION WAS DESCRIBED IN THE HOUSE REPORT AS COVERING "ANY
INTERNAL MEMORANDUMS WHICH WOULD ROUTINELY BE DISCLOSED TO A PRIVATE
PARTY THROUGH THE DISCOVERY PROCESS IN LITIGATION WITH THE AGENCY." 
H.R.REP.NO. 1497, 89TH CONG., 2D SESS., 10.  IT IS CLEAR FROM THE
LEGISLATIVE HISTORY THAT WHILE OPINIONS AND STAFF ADVICE ARE EXEMPT,
FACTUAL MATTERS ARE NOT.  IBID.; S.REP.NO. 813, 89TH CONG., 1ST SESS.,
9.  AND THE COURTS HAVE UNIFORMLY AGREED ON THAT CONSTRUCTION OF THE
ACT.  SEE SOUCIE V. DAVID, 145 U.S.APP.D.C. 144, 448 F.2D 1067; GRUMMAN
AIRCRAFT ENG. CORP. V. RENEGOTIATION BD., 138 U.S.APP.D.C. 147, 425
F.2D 578; LONG ISLAND R. CO. V. UNITED STATES, 318 F.SUPP.  490;
CONSUMERS UNION V. VETERANS ADMIN., 301 F.SUPP.  796. 

FACTS AND OPINIONS MAY, AS THE COURT OF APPEALS NOTED, BE
"INEXTRICABLY INTERTWINED WITH POLICYMAKING PROCESSES" IN SOME CASES. 
IN SUCH AN EVENT, SECRECY PREVAILS.  YET, WHERE FACTS AND OPINIONS CAN
BE SEPARATED, THE ACT ALLOWS THE FULL LIGHT OF PUBLICITY TO BE PLACED
ON THE FACTS. 

SAYS:  "THIS SECTION DOES NOT AUTHORIZE WITHHOLDING OF INFORMATION OR
LIMIT THE AVAILABILITY OF RECORDS TO THE PUBLIC, EXCEPT AS SPECIFICALLY
STATED IN THIS SECTION."  DISCLOSURE, RATHER THAN SECRECY, IS THE RULE,
SAVE FOR THE SPECIFIC EXCEPTIONS IN SUBSECTION (B). 

THE GOVERNMENT SEEKS TO ESCAPE FROM THE ACT BY MAKING THE GOVERNMENT
STAMP OF "TOP SECRET" OR "SECRET" A BARRIER TO THE PERFORMANCE OF THE
DISTRICT COURT'S FUNCTIONS UNDER SEC. 552(A)(3) OF THE ACT.  THE
MAJORITY MAKES THE STAMP SACROSANCT, THEREBY IMMUNIZING STAMPED
DOCUMENTS FROM JUDICIAL SCRUTINY, WHETHER OR NOT FACTUAL INFORMATION
CONTAINED IN THE DOCUMENT IS IN FACT COLORABLY RELATED TO INTERESTS OF
THE NATIONAL DEFENSE OR FOREIGN POLICY.  YET ANYONE WHO HAS EVER BEEN
IN THE EXECUTIVE BRANCH KNOWS HOW CONVENIENT THE "TOP SECRET" OR
"SECRET" STAMP IS, HOW EASY IT IS TO USE, AND HOW IT COVERS PERHAPS FOR
DECADES THE FOOTPRINTS OF A NERVOUS BUREAUCRAT OR A WARY EXECUTIVE. 

I REPEAT WHAT I SAID IN GRAVEL V. UNITED STATES, 408 U.S. 606, 641
642 (DISSENTING OPINION): 

     "(AS HAS BEEN REVEALED BY SUCH EXPOSES AS THE PENTAGON PAPERS,

  THE MY LAI MASSACRES, THE GULF OF TONKIN 'INCIDENT,' AND THE BAY

  OF PIGS INVASION, OF TONKIN 'INCIDENT,' AND THE BAY OF PIGS

INVASION, THE GOVERNMENT USUALLY SUPPRESSES DAMAGING NEWS BUT

  HIGHLIGHTS FAVORABLE NEWS.  IN THIS FILTERING PROCESS THE SECRECY

  STAMP IS THE OFFICIALS' TOOL OF SUPPRESSION AND IT HAS BEEN USED

  TO WITHHOLD INFORMATION WHICH IN '99 1/2%' OF THE CASES WOULD

  PRESENT NO DANGER TO NATIONAL SECURITY.  TO REFUSE TO PUBLISH

  'CLASSIFIED' REPORTS WOULD AT TIMES RELEGATE A PUBLISHER TO

  DISTRIBUTING ONLY THE PRESS RELEASES OF GOVERNMENT OR REMAINING

  SILENT; IF IT PRINTED ONLY THE PRESS RELEASES OR 'LEAKS' IT WOULD

  BECOME AN ARM OF OFFICIALDOM, NOT ITS CRITIC.  RATHER, IN MY

VIEW, WHEN A PUBLISHER OBTAINS A CLASSIFIED DOCUMENT HE SHOULD BE

  FREE TO PRINT IT WITHOUT FEAR OF RETRIBUTION, UNLESS IT CONTAINS

  MATERIAL DIRECTLY BEARING ON FUTURE, SENSITIVE PLANNING OF THE

  GOVERNMENT." 

THE GOVERNMENT IS AGHAST AT A FEDERAL JUDGE'S EVEN LOOKING AT THE
SECRET FILES AND VIEWS WITH DISDAIN THE PROSPECT OF RESPONSIBLE
JUDICIAL ACTION IN THE AREA.  IT SUGGESTS THAT JUDGES HAVE NO BUSINESS
DECLASSIFYING "SECRETS," THAT JUDGES ARE NOT FAMILIAR WITH THE STUFF
WITH WHICH THESE "TOP SECRET" OR "SECRET" DOCUMENTS DEAL. 

THAT IS TO MISCONCEIVE AND DISTORT THE JUDICIAL FUNCTION UNDER SEC.
552(A)(3) OF THE ACT.  THE COURT OF APPEALS NEVER DREAMED THAT THE
TRIAL JUDGE WOULD DECLASSIFY DOCUMENTS.  HIS FIRST TASK WOULD BE TO
DETERMINE WHETHER NONSECRET MATERIAL WAS A MERE APPENDAGE TO A "SECRET"
OR "TOP SECRET" FILE.  HIS SECOND TASK WOULD BE TO DETERMINE WHETHER
UNDER NORMAL DISCOVERY PROCEDURES CONTAINED IN FED. RULES CIV. PROC.
26, FACTUAL MATERIAL IN THESE "SECRET" OR "TOP SECRET"  MATERIALS IS
DETACHED FROM THE "SECRET" AND WOULD, THEREFORE, BE AVAILABLE TO
LITIGANTS CONFRONTING THE AGENCY IN ORDINARY LAWSUITS.     UNLESS THE
DISTRICT COURT CAN DO THOSE THINGS, THE MUCH ADVERTISED FREEDOM OF
INFORMATION ACT IS ON ITS WAY TO BECOMING A SHAMBLES.  /1/  UNLESS
FEDERAL COURTS CAN BE TRUSTED, THE EXECUTIVE WILL HOLD COMPLETE SWAY
AND BY IPSE DIXIT MAKE EVEN THE TIME OF DAY "TOP SECRET."  CERTAINLY,
THE DECISION TODAY WILL UPSET THE "WORKABLE FORMULA," AT THE HEART OF
THE LEGISLATIVE SCHEME, "WHICH ENCOMPASSES, BALANCES, AND PROTECTS ALL
INTERESTS, YET PLACES EMPHASIS ON THE FULLEST RESPONSIBLE DISCLOSURE." 
S.REP.NO. 813, P. 3.  THE EXECUTIVE BRANCH NOW HAS CARTE BLANCHE TO
INSULATE INFORMATION FROM PUBLIC SCRUTINY WHETHER OR NOT THAT
INFORMATION BEARS ANY DISCERNIBLE RELATION TO THE INTERESTS SOUGHT TO
BE PROTECTED BY SUBSECTION (B)(1) OF THE ACT.  WE SHOULD REMEMBER THE
WORDS OF MADISON: 

     "A POPULAR GOVERNMENT, WITHOUT POPULAR INFORMATION, OR THE

  MEANS OF ACQUIRING IT, IS BUT A PROLOGUE TO A FARCE OR A TRAGEDY;

  OR, PERHAPS BOTH.  KNOWLEDGE WILL FOREVER GOVERN IGNORANCE:  AND

A PEOPLE WHO MEAN TO BE THEIR OWN GOVERNORS, MUST ARM THEMSELVES

  WITH THE POWER WHICH KNOWLEDGE GIVES."  /2/ 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  MY BROTHER STEWART, WITH ALL DEFERENCE, HELPS MAKE A SHAMBLES
OF THE ACT BY READING SEC. 552(B)(1) AS SWALLOWING ALL THE OTHER EIGHT
EXCEPTIONS.  WHILE SEC. 552(B)(1) EXEMPTS MATTERS "SPECIFICALLY
REQUIRED BY EXECUTIVE ORDER TO BE KEPT SECRET IN THE INTEREST OF THE
NATIONAL DEFENSE OR FOREIGN POLICY," SEC. 4 OF EXECUTIVE ORDER 11652,
AS I HAVE NOTED, CONTEMPLATES THAT NOT ALL PORTIONS OF A DOCUMENT
CLASSIFIED AS "SECRET" ARE NECESSARILY "SECRET," FOR THE ORDER
CONTEMPLATES "EXCERPTING" OF SOME MATERIAL.  REFEREEING WHAT MAY
PROPERLY BE EXCERPTED IS PART OF THE JUDICIAL TASK.  THIS IS MADE
OBVIOUS BY SEC. 552(B)(5), WHICH KEEPS SECRET "INTER-AGENCY OR INTRA
AGENCY MEMORANDUMS OR LETTERS WHICH WOULD NOT BE AVAILABLE BY LAW TO A
PARTY OTHER THAN AN AGENCY IN LITIGATION WITH THE AGENCY."  THE
BUREAUCRAT WHO USES THE "SECRET" STAMP OBVIOUSLY DOES NOT HAVE THE
FINAL SAY AS TO WHAT "MEMORANDUMS OR LETTERS" WOULD BE AVAILABLE BY LAW
UNDER EXEMPTION 5, FOR SEC. 552(A)(3) GIVES THE DISTRICT COURT
AUTHORITY, WHERE AGENCY RECORDS ARE ALLEGED TO BE "IMPROPERLY
WITHHELD," TO "DETERMINE THE MATTER DE NOVO," THE "BURDEN" BEING ON THE
AGENCY "TO SUSTAIN ITS ACTION."  HENCE, SEC. 552(B)(5), BEHIND WHICH
THE EXECUTIVE AGENCY SEEKS REFUGE HERE, ESTABLISHES A POLICY WHICH IS
SERVED BY THE FACT/OPINION DISTINCTION LONG ESTABLISHED IN FEDERAL
DISCOVERY.  THE QUESTION IS WHETHER A PRIVATE PARTY WOULD ROUTINELY BE
ENTITLED TO DISCLOSURE THROUGH DISCOVERY OF SOME OR ALL OF THE MATERIAL
SOUGHT TO BE EXCERPTED.  WHEN THE COURT ANSWERS THAT NO SUCH INQUIRY
CAN BE MADE UNDER SEC. 552(B)(1), IT MAKES A SHAMBLES OF THE DISCLOSURE
MECHANISM WHICH CONGRESS TRIED TO CREATE.  TO MAKE OBVIOUS THE
INTERPLAY OF THE NINE EXEMPTIONS LISTED IN SEC. 552(B), AS WELL AS SEC.
552(C), I HAVE ATTACHED THEM AS AN APPENDIX TO THIS DISSENT. 

/2/  LETTER TO W. T. BARRY, AUG. 4, 1822, 9 THE WRITINGS OF JAMES
MADISON 103 (HUNT ED. 1910). 

        APPENDIX TO OPINION OF DOUGLAS J., DISSENTING 

FOLLOWS: 

(B) THIS SECTION DOES NOT APPLY TO MATTERS THAT ARE-- 

(1) SPECIFICALLY REQUIRED BY EXECUTIVE ORDER TO BE KEPT SECRET IN
THE INTEREST OF THE NATIONAL DEFENSE OR FOREIGN POLICY; 

(2) RELATED SOLELY TO THE INTERNAL PERSONNEL RULES AND PRACTICES OF
AN AGENCY; 

(3) SPECIFICALLY EXEMPTED FROM DISCLOSURE BY STATUTE; 

(4) TRADE SECRETS AND COMMERCIAL OR FINANCIAL INFORMATION OBTAINED
FROM A PERSON AND PRIVILEGED OR CONFIDENTIAL; 

(5) INTER-AGENCY OR INTRA-AGENCY MEMORANDUMS OR LETTERS WHICH WOULD
NOT BE AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY IN LITIGATION
WITH THE AGENCY; 

(6) PERSONNEL AND MEDICAL FILES AND SIMILAR FILES THE DISCLOSURE OF
WHICH WOULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PERSONAL
PRIVACY; 

(7) INVESTIGATORY FILES COMPILED FOR LAW ENFORCEMENT PURPOSES EXCEPT
TO THE EXTENT AVAILABLE BY LAW TO A PARTY OTHER THAN AN AGENCY; 

(8) CONTAINED IN OR RELATED TO EXAMINATION, OPERATING, OR CONDITION
REPORTS PREPARED BY, ON BEHALF OF, OR FOR THE USE OF AN AGENCY
RESPONSIBLE FOR THE REGULATION OR SUPERVISION OF FINANCIAL
INSTITUTIONS; OR 

(9) GEOLOGICAL AND GEOPHYSICAL INFORMATION AND DATA, INCLUDING MAPS,
CONCERNING WELLS. 

(C) THIS SECTION DOES NOT AUTHORIZE WITHHOLDING OF INFORMATION OR
LIMIT THE AVAILABILITY OF RECORDS TO THE PUBLIC, EXCEPT AS SPECIFICALLY
STATED IN THIS SECTION.  THIS SECTION IS NOT AUTHORITY TO WITHHOLD
INFORMATION FROM CONGRESS. 

ASSISTANT ATTORNEY GENERAL CRAMTON ARGUED THE CAUSE FOR
PETITIONERS.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ACTING ASSISTANT ATTORNEY GENERAL WOOD, HARRY R. SACHSE, WALTER H.
FLEISCHER, AND WILLIAM KANTER. 

RAMSEY CLARK ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 
/0/
..END :











ROE V. WADE, 410 U.S. 113 


       ROE ET AL. V. WADE, DISTRICT ATTORNEY OF DALLAS COUNTY

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF TEXAS

NO. 70-18.  ARGUED DECEMBER 13, 1971-- REARGUED OCTOBER 11,

          1972-- DECIDED JANUARY 22, 1973 


A PREGNANT SINGLE WOMAN (ROE) BROUGHT A CLASS ACTION CHALLENGING THE
CONSTITUTIONALITY OF THE TEXAS CRIMINAL ABORTION LAWS, WHICH PRESCRIBE
PROCURING OR ATTEMPTING AN ABORTION EXCEPT ON MEDICAL ADVICE FOR THE
PURPOSE OF SAVING THE MOTHER'S LIFE.  A LICENSED PHYSICIAN (HALLFORD),
WHO HAD TWO STATE ABORTION PROSECUTIONS PENDING AGAINST HIM, WAS
PERMITTED TO INTERVENE.  A CHILDLESS MARRIED COUPLE (THE DOES), THE
WIFE NOT BEING PREGNANT, SEPARATELY ATTACKED THE LAWS, BASING ALLEGED
INJURY ON THE FUTURE POSSIBILITIES OF CONTRACEPTIVE FAILURE, PREGNANCY,
UNPREPAREDNESS FOR PARENTHOOD, AND IMPAIRMENT OF THE WIFE'S HEALTH.  A
THREE-JUDGE DISTRICT COURT, WHICH CONSOLIDATED THE ACTIONS, HELD THAT
ROE AND HALLFORD, AND MEMBERS OF THEIR CLASSES, HAD STANDING TO SUE AND
PRESENTED JUSTICIABLE CONTROVERSIES.  RULING THAT DECLARATORY, THOUGH
NOT INJUNCTIVE, RELIEF WAS WARRANTED, THE COURT DECLARED THE ABORTION
STATUTES VOID AS VAGUE AND OVERBROADLY INFRINGING THOSE PLAINTIFFS'
NINTH AND FOURTEENTH AMENDMENT RIGHTS.  THE COURT RULED THE DOES'
COMPLAINT NOT JUSTICIABLE.  APPELLANTS DIRECTLY APPEALED TO THIS COURT
ON THE INJUNCTIVE RULINGS, AND APPELLEE CROSS-APPEALED FROM THE
DISTRICT COURT'S GRANT OF DECLARATORY RELIEF TO ROE AND HALLFORD. 
HELD: 

1.  WHILE 28 U.S.C. 1253 AUTHORIZES NO DIRECT APPEAL TO THIS COURT
FROM THE GRANT OR DENIAL OF DECLARATORY RELIEF ALONE, REVIEW IS NOT
FORECLOSED WHEN THE CASE IS PROPERLY BEFORE THE COURT ON APPEAL FROM
SPECIFIC DENIAL OF INJUNCTIVE RELIEF AND THE ARGUMENTS AS TO BOTH
INJUNCTIVE AND DECLARATORY RELIEF ARE NECESSARILY IDENTICAL.  P. 123. 

2.  ROE HAS STANDING TO SUE; THE DOES AND HALLFORD DO NOT.  PP. 123
129. 

(A) CONTRARY TO APPELLEE'S CONTENTION, THE NATURAL TERMINATION OF
ROE'S PREGNANCY DID NOT MOOT HER SUIT.  LITIGATION INVOLVING PREGNANCY,
WHICH IS "CAPABLE OF REPETITION, YET EVADING REVIEW," IS AN EXCEPTION
TO THE USUAL FEDERAL RULE THAT AN ACTUAL CONTROVERSY MUST EXIST AT
REVIEW STAGES AND NOT SIMPLY WHEN THE ACTION IS INITIATED.  PP. 124
125. 

(B) THE DISTRICT COURT CORRECTLY REFUSED INJUNCTIVE, BUT ERRED IN
GRANTING DECLARATORY, RELIEF TO HALLFORD, WHO ALLEGED NO FEDERALLY
PROTECTED RIGHT NOT ASSERTABLE AS A DEFENSE AGAINST THE GOOD-FAITH
STATE PROSECUTIONS PENDING AGAINST HIM.  SAMUELS V. MACKELL, 401 U.S.
66.  PP. 125-127. 

(C) THE DOES' COMPLAINT, BASED AS IT IS ON CONTINGENCIES, ANY ONE OR
MORE OF WHICH MAY NOT OCCUR, IS TOO SPECULATIVE TO PRESENT AN ACTUAL
CASE OR CONTROVERSY.  PP. 127-129. 

3.  STATE CRIMINAL ABORTION LAWS, LIKE THOSE INVOLVED HERE, THAT
EXCEPT FROM CRIMINALITY ONLY A LIFE-SAVING PROCEDURE ON THE MOTHER'S
BEHALF WITHOUT REGARD TO THE STAGE OF HER PREGNANCY AND OTHER INTERESTS
INVOLVED VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
WHICH PROTECTS AGAINST STATE ACTION THE RIGHT TO PRIVACY, INCLUDING A
WOMAN'S QUALIFIED RIGHT TO TERMINATE HER PREGNANCY.  THOUGH THE STATE
CANNOT OVERRIDE THAT RIGHT, IT HAS LEGITIMATE INTERESTS IN PROTECTING
BOTH THE PREGNANT WOMAN'S HEALTH AND THE POTENTIALITY OF HUMAN LIFE,
EACH OF WHICH INTERESTS GROWS AND REACHES A "COMPELLING" POINT AT
VARIOUS STAGES OF THE WOMAN'S APPROACH TO TERM.  PP. 147-164. 

(A) FOR THE STAGE PRIOR TO APPROXIMATELY THE END OF THE FIRST
TRIMESTER, THE ABORTION DECISION AND ITS EFFECTUATION MUST BE LEFT TO
THE MEDICAL JUDGMENT OF THE PREGNANT WOMAN'S ATTENDING PHYSICIAN.  PP.
163, 164. 

(B) FOR THE STAGE SUBSEQUENT TO APPROXIMATELY THE END OF THE FIRST
TRIMESTER, THE STATE IN PROMOTING ITS INTEREST IN THE HEALTH OF THE
MOTHER, MAY, IF IT CHOOSES, REGULATE THE ABORTION PROCEDURE IN WAYS
THAT ARE REASONABLY RELATED TO MATERNAL HEALTH.  PP. 163, 164. 

(C) FOR THE STAGE SUBSEQUENT TO VIABILITY THE STATE IN PROMOTING ITS
INTEREST IN THE POTENTIALITY OF HUMAN LIFE, MAY, IF IT CHOOSES,
REGULATE, AND EVEN PROSCRIBE, ABORTION EXCEPT WHERE NECESSARY, IN
APPROPRIATE MEDICAL JUDGMENT, FOR THE PRESERVATION OF THE LIFE OR
HEALTH OF THE MOTHER.  PP. 163-164; 164-165. 

4.  THE STATE MAY DEFINE THE TERM "PHYSICIAN" TO MEAN ONLY A
PHYSICIAN CURRENTLY LICENSED BY THE STATE, AND MAY PROSCRIBE ANY
ABORTION BY A PERSON WHO IS NOT A PHYSICIAN AS SO DEFINED.  P. 165. 

5.  IT IS UNNECESSARY TO DECIDE THE INJUNCTIVE RELIEF ISSUE SINCE
THE TEXAS AUTHORITIES WILL DOUBTLESS FULLY RECOGNIZE THE COURT'S RULING
THAT THE TEXAS CRIMINAL ABORTION STATUTES ARE UNCONSTITUTIONAL.  P.
166. 

314 F.SUPP.  1217, AFFIRMED IN PART AND REVERSED IN PART. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND DOUGLAS, BRENNAN, STEWART, MARSHALL, AND POWELL, JJ.,
JOINED.  BURGER, C. J., POST, P. 207, DOUGLAS, J., POST, P. 209, AND
STEWART, J., POST, P. 167, FILED CONCURRING OPINIONS.  WHITE, J., FILED
A DISSENTING OPINION, IN WHICH REHNQUIST, J., JOINED, POST, P. 221. 
REHNQUIST, J., FILED A DISSENTING OPINION, POST, P. 171. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS TEXAS FEDERAL APPEAL AND ITS GEORGIA COMPANION, DOE V. BOLTON,
POST, P. 179, PRESENT CONSTITUTIONAL CHALLENGES TO STATE CRIMINAL
ABORTION LEGISLATION.  THE TEXAS STATUTES UNDER ATTACK HERE ARE TYPICAL
OF THOSE THAT HAVE BEEN IN EFFECT IN MANY STATES FOR APPROXIMATELY A
CENTURY.  THE GEORGIA STATUTES, IN CONTRAST, HAVE A MODERN CAST AND ARE
A LEGISLATIVE PRODUCT THAT, TO AN EXTENT AT LEAST, OBVIOUSLY REFLECTS
THE INFLUENCES OF RECENT ATTITUDINAL CHANGE, OF ADVANCING MEDICAL
KNOWLEDGE AND TECHNIQUES, AND OF NEW THINKING ABOUT AN OLD ISSUE. 

WE FORTHWITH ACKNOWLEDGE OUR AWARENESS OF THE SENSITIVE AND
EMOTIONAL NATURE OF THE ABORTION CONTROVERSY, OF THE VIGOROUS OPPOSING
VIEWS, EVEN AMONG PHYSICIANS, AND OF THE DEEP AND SEEMINGLY ABSOLUTE
CONVICTIONS THAT THE SUBJECT INSPIRES.  ONE'S PHILOSOPHY, ONE'S
EXPERIENCES, ONE'S EXPOSURE TO THE RAW EDGES OF HUMAN EXISTENCE, ONE'S
RELIGIOUS TRAINING, ONE'S ATTITUDES TOWARD LIFE AND FAMILY AND THEIR
VALUES, AND THE MORAL STANDARDS ONE ESTABLISHES AND SEEKS TO OBSERVE,
ARE ALL LIKELY TO INFLUENCE AND TO COLOR ONE'S THINKING AND CONCLUSIONS
ABOUT ABORTION. 

IN ADDITION, POPULATION GROWTH, POLLUTION, POVERTY, AND RACIAL
OVERTONES TEND TO COMPLICATE AND NOT TO SIMPLIFY THE PROBLEM. 

OUR TASK, OF COURSE, IS TO RESOLVE THE ISSUE BY CONSTITUTIONAL
MEASUREMENT, FREE OF EMOTION AND OF PREDILECTION.  WE SEEK EARNESTLY TO
DO THIS, AND, BECAUSE WE DO, WE HAVE INQUIRED INTO, AND IN THIS OPINION
PLACE SOME EMPHASIS UPON, MEDICAL AND MEDICAL-LEGAL HISTORY AND WHAT
THAT HISTORY REVEALS ABOUT MAN'S ATTITUDES TOWARD THE ABORTION
PROCEDURE OVER THE CENTURIES.  WE BEAR IN MIND, TOO, MR. JUSTICE
HOLMES' ADMONITION IN HIS NOW-VINDICATED DISSENT IN LOCHNER V. NEW
YORK, 198 U.S. 45, 76 (1905): 

"(THE CONSTITUTION) IS MADE FOR PEOPLE OF FUNDAMENTALLY

DIFFERING VIEWS, AND THE ACCIDENT OF OUR FINDING CERTAIN OPINIONS

  NATURAL AND FAMILIAR OR NOVEL AND EVEN SHOCKING OUGHT NOT TO

  CONCLUDE OUR JUDGMENT UPON THE QUESTION WHETHER STATUTES

  EMBODYING THEM CONFLICT WITH THE CONSTITUTION OF THE UNITED

  STATES." 

        I 

THE TEXAS STATUTES THAT CONCERN US HERE ARE ARTS. 1191-1194 AND 1196
OF THE STATE'S PENAL CODE.  /1/  THESE MAKE IT A CRIME TO "PROCURE AN
ABORTION," AS THEREIN DEFINED, OR TO ATTEMPT ONE, EXCEPT WITH RESPECT
TO "AN ABORTION PROCURED OR ATTEMPTED BY MEDICAL ADVICE FOR THE PURPOSE
OF SAVING THE LIFE OF THE: MOTHER."  SIMILAR STATUTES ARE IN EXISTENCE
IN A MAJORITY OF THE STATES.  /2/ 

TEXAS FIRST ENACTED A CRIMINAL ABORTION STATUTE IN 1854.  TEXAS LAWS
1854, C. 49, SEC. 1, SET FORTH IN 3 H. GAMMEL, LAWS OF TEXAS 1502
(1898).  THIS WAS SOON MODIFIED INTO LANGUAGE THAT HAS REMAINED
SUBSTANTIALLY UNCHANGED TO THE PRESENT TIME.  SEE TEXAS PENAL CODE OF
1857, C. 7, ARTS. 531-536; G. PASCHAL, LAWS OF TEXAS, ARTS. 2192-2197
(1866); TEXAS REV. STAT., C. 8, ARTS. 536-541 (1879); TEXAS REV. CRIM.
STAT., ARTS. 1071-1076 (1911).  THE FINAL ARTICLE IN EACH OF THESE
COMPILATIONS PROVIDED THE SAME EXCEPTION, AS DOES THE PRESENT ARTICLE
1196, FOR AN ABORTION BY "MEDICAL ADVICE FOR THE PURPOSE OF SAVING THE
LIFE OF THE MOTHER."  /3/

        II 

JANE ROE, /4/  A SINGLE WOMAN WHO WAS RESIDING IN DALLAS COUNTY,
TEXAS, INSTITUTED THIS FEDERAL ACTION IN MARCH 1970 AGAINST THE
DISTRICT ATTORNEY OF THE COUNTY.  SHE SOUGHT A DECLARATORY JUDGMENT
THAT THE TEXAS CRIMINAL ABORTION STATUTES WERE UNCONSTITUTIONAL ON
THEIR FACE, AND AN INJUNCTION RESTRAINING THE DEFENDANT FROM ENFORCING
THE STATUTES. 

ROE ALLEGED THAT SHE WAS UNMARRIED AND PREGNANT; THAT SHE WISHED TO
TERMINATE HER PREGNANCY BY AN ABORTION "PERFORMED BY A COMPETENT,
LICENSED PHYSICIAN, UNDER SAFE, CLINICAL CONDITIONS"; THAT SHE WAS
UNABLE TO GET A "LEGAL" ABORTION IN TEXAS BECAUSE HER LIFE DID NOT
APPEAR TO BE THREATENED BY THE CONTINUATION OF HER PREGNANCY; AND THAT
SHE COULD NOT AFFORD TO TRAVEL TO ANOTHER JURISDICTION IN ORDER TO
SECURE A LEGAL ABORTION UNDER SAFE CONDITIONS.  SHE CLAIMED THAT THE
TEXAS STATUTES WERE UNCONSTITUTIONALLY VAGUE AND THAT THEY ABRIDGED HER
RIGHT OF PERSONAL PRIVACY, PROTECTED BY THE FIRST, FOURTH, FIFTH,
NINTH, AND FOURTEENTH AMENDMENTS.  BY AN AMENDMENT TO HER COMPLAINT ROE
PURPORTED TO SUE "ON BEHALF OF HERSELF AND ALL OTHER WOMEN" SIMILARLY
SITUATED. 

JAMES HUBERT HALLFORD, A LICENSED PHYSICIAN, SOUGHT AND WAS GRANTED
LEAVE TO INTERVENE IN ROE'S ACTION.  IN HIS COMPLAINT HE ALLEGED THAT
HE HAD BEEN ARRESTED PREVIOUSLY FOR VIOLATIONS OF THE TEXAS ABORTION
STATUTES AND THAT TWO SUCH PROSECUTIONS WERE PENDING AGAINST HIM.  HE
DESCRIBED CONDITIONS OF PATIENTS WHO CAME TO HIM SEEKING ABORTIONS, AND
HE CLAIMED THAT FOR MANY CASES HE, AS A PHYSICIAN, WAS UNABLE TO
DETERMINE WHETHER THEY FELL WITHIN OR OUTSIDE THE EXCEPTION RECOGNIZED
BY ARTICLE 1196.  HE ALLEGED THAT, AS A CONSEQUENCE, THE STATUTES WERE
VAGUE AND UNCERTAIN, IN VIOLATION OF THE FOURTEENTH AMENDMENT, AND THAT
THEY VIOLATED HIS OWN AND HIS PATIENTS' RIGHTS TO PRIVACY IN THE DOCTOR
PATIENT RELATIONSHIP AND HIS OWN RIGHT TO PRACTICE MEDICINE, RIGHTS HE
CLAIMED WERE GUARANTEED BY THE FIRST, FOURTH, FIFTH, NINTH, AND
FOURTEENTH AMENDMENTS. 

JOHN AND MARY DOE, /5/  A MARRIED COUPLE, FILED A COMPANION
COMPLAINT TO THAT OF ROE.  THEY ALSO NAMED THE DISTRICT ATTORNEY AS
DEFENDANT, CLAIMED LIKE CONSTITUTIONAL DEPRIVATIONS, AND SOUGHT
DECLARATORY AND INJUNCTIVE RELIEF.  THE DOES ALLEGED THAT THEY WERE A
CHILDLESS COUPLE; THAT MRS. DOE WAS SUFFERING FROM A "NEURAL-CHEMICAL"
DISORDER; THAT HER PHYSICIAN HAD "ADVISED HER TO AVOID PREGNANCY UNTIL
SUCH TIME AS HER CONDITION HAS MATERIALLY IMPROVED" (ALTHOUGH A
PREGNANCY AT THE PRESENT TIME WOULD NOT PRESENT "A SERIOUS RISK" TO HER
LIFE); THAT, PURSUANT TO MEDICAL ADVICE, SHE HAD DISCONTINUED USE OF
BIRTH CONTROL PILLS; AND THAT IF SHE SHOULD BECOME PREGNANT, SHE WOULD
WANT TO TERMINATE THE PREGNANCY BY AN ABORTION PERFORMED BY A
COMPETENT, LICENSED PHYSICIAN UNDER SAFE, CLINICAL CONDITIONS.  BY AN
AMENDMENT TO THEIR COMPLAINT, THE DOES PURPORTED TO SUE "ON BEHALF OF
THEMSELVES AND ALL COUPLES SIMILARLY SITUATED." 

THE TWO ACTIONS WERE CONSOLIDATED AND HEARD TOGETHER BY A DULY
CONVENED THREE-JUDGE DISTRICT COURT.  THE SUITS THUS PRESENTED THE
SITUATIONS OF THE PREGNANT SINGLE WOMAN, THE CHILDLESS COUPLE, WITH THE
WIFE NOT PREGNANT, AND THE LICENSED PRACTICING PHYSICIAN, ALL JOINING
IN THE ATTACK ON THE TEXAS CRIMINAL ABORTION STATUTES.  UPON THE FILING
OF AFFIDAVITS, MOTIONS WERE MADE FOR DISMISSAL AND FOR SUMMARY
JUDGMENT.  THE COURT HELD THAT ROE AND MEMBERS OF HER CLASS, AND DR.
HALLFORD, HAD STANDING TO SUE AND PRESENTED JUSTICIABLE CONTROVERSIES,
BUT THAT THE DOES HAD FAILED TO ALLEGE FACTS SUFFICIENT TO STATE A
PRESENT CONTROVERSY AND DID NOT HAVE STANDING.  IT CONCLUDED THAT, WITH
RESPECT TO THE REQUESTS FOR A DECLARATORY JUDGMENT, ABSTENTION WAS NOT
WARRANTED.  ON THE MERITS, THE DISTRICT COURT HELD THAT THE
"FUNDAMENTAL RIGHT OF SINGLE WOMEN AND MARRIED PERSONS TO CHOOSE
WHETHER TO HAVE CHILDREN IS PROTECTED BY THE NINTH AMENDMENT, THROUGH
THE FOURTEENTH AMENDMENT," AND THAT THE TEXAS CRIMINAL ABORTION
STATUTES WERE VOID ON THEIR FACE BECAUSE THEY WERE BOTH
UNCONSTITUTIONALLY VAGUE AND CONSTITUTED AN OVERBROAD INFRINGEMENT OF
THE PLAINTIFFS' NINTH AMENDMENT RIGHTS.  THE COURT THEN HELD THAT
ABSTENTION WAS WARRANTED WITH RESPECT TO THE REQUESTS FOR AN
INJUNCTION.  IT THEREFORE DISMISSED THE DOES' COMPLAINT, DECLARED THE
ABORTION STATUTES VOID, AND DISMISSED THE APPLICATION FOR INJUNCTIVE
RELIEF.  314 F.SUPP.  1217, 1225 (ND TEX. 1970). 

THE PLAINTIFFS ROE AND DOE AND THE INTERVENOR HALLFORD, PURSUANT TO
28 U.S.C. 1253, HAVE APPEALED TO THIS COURT FROM THAT PART OF THE
DISTRICT COURT'S JUDGMENT DENYING THE INJUNCTION.  THE DEFENDANT
DISTRICT ATTORNEY HAD PURPORTED TO CROSS-APPEAL, PURSUANT TO THE SAME
STATUTE, FROM THE COURT'S GRANT OF DECLARATORY RELIEF TO ROE AND
HALLFORD.  BOTH SIDES ALSO HAVE TAKEN PROTECTIVE APPEALS TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.  THAT COURT ORDERED THE
APPEALS HELD IN ABEYANCE PENDING DECISION HERE.  WE POSTPONED DECISION
ON JURISDICTION TO THE HEARING ON THE MERITS.  402 U.S. 941 (1971). 

       III 

IT MIGHT HAVE BEEN PREFERABLE IF THE DEFENDANT, PURSUANT TO OUR RULE
20, HAD PRESENTED TO US A PETITION FOR CERTIORARI BEFORE JUDGMENT IN
THE COURT OF APPEALS WITH RESPECT TO THE GRANTING OF THE PLAINTIFFS'
PRAYER FOR DECLARATORY RELIEF.  OUR DECISIONS IN MITCHELL V. DONOVAN,
398 U.S. 427 (1970), AND GUNN V. UNIVERSITY COMMITTEE, 399 U.S. 383
(1970), ARE TO THE EFFECT THAT SEC. 1253 DOES NOT AUTHORIZE AN APPEAL
TO THIS COURT FROM THE GRANT OR DENIAL OF DECLARATORY RELIEF ALONE.  WE
CONCLUDE, NEVERTHELESS, THAT THOSE DECISIONS DO NOT FORECLOSE OUR
REVIEW OF BOTH THE INJUNCTIVE AND THE DECLARATORY ASPECTS OF A CASE OF
THIS KIND WHEN IT IS PROPERLY HERE, AS THIS ONE IS, ON APPEAL UNDER
SEC. 1253 FROM SPECIFIC DENIAL OF INJUNCTIVE RELIEF, AND THE ARGUMENTS
AS TO BOTH ASPECTS ARE NECESSARILY IDENTICAL.  SEE CARTER V. JURY
COMM'N, 396 U.S. 320 (1970); FLORIDA LIME GROWERS V. JACOBSEN, 362 U.S.
73, 80-81 (1960).  IT WOULD BE DESTRUCTIVE OF TIME AND ENERGY FOR ALL
CONCERNED WERE WE TO RULE OTHERWISE.  CF.  DOE V. BOLTON, POST, P.
179. 

   IV 

WE ARE NEXT CONFRONTED WITH ISSUES OF JUSTICIABILITY, STANDING, AND
ABSTENTION.  HAVE ROE AND THE DOES ESTABLISHED THAT "PERSONAL STAKE IN
THE OUTCOME OF THE CONTROVERSY," BAKER V. CARR, 369 U.S. 186, 204
(1962), THAT INSURES THAT "THE DISPUTE SOUGHT TO BE ADJUDICATED WILL BE
PRESENTED IN AN ADVERSARY CONTEXT AND IN A FORM HISTORICALLY VIEWED AS
CAPABLE OF JUDICIAL RESOLUTION," FLAST V. COHEN, 392 U.S. 83, 101
(1968), AND SIERRA CLUB V. MORTON, 405 U.S. 727, 732 (1972)?  AND WHAT
EFFECT DID THE PENDENCY OF CRIMINAL ABORTION CHARGES AGAINST DR.
HALLFORD IN STATE COURT HAVE UPON THE PROPRIETY OF THE FEDERAL COURT'S
GRANTING RELIEF TO HIM AS A PLAINTIFF-INTERVENOR? 

A. JANE ROE.  DESPITE THE USE OF THE PSEUDONYM, NO SUGGESTION IS
MADE THAT ROE IS A FICTITIOUS PERSON.  FOR PURPOSES OF HER CASE, WE
ACCEPT AS TRUE, AND AS ESTABLISHED, HER EXISTENCE; HER PREGNANT STATE,
AS OF THE INCEPTION OF HER SUIT IN MARCH 1970 AND AS LATE AS MAY 21 OF
THAT YEAR WHEN SHE FILED AN ALIAS AFFIDAVIT WITH THE DISTRICT COURT;
AND HER INABILITY TO OBTAIN A LEGAL ABORTION IN TEXAS. 

VIEWING ROE'S CASE AS OF THE TIME OF ITS FILING AND THEREAFTER UNTIL
AS LATE MAY, THERE CAN BE LITTLE DISPUTE THAT IT THEN PRESENTED A CASE
OR CONTROVERSY AND THAT, WHOLLY APART FROM THE CLASS ASPECTS, SHE, AS A
PREGNANT SINGLE WOMAN THWARTED BY THE TEXAS CRIMINAL ABORTION LAWS, HAD
STANDING TO CHALLENGE THOSE STATUTES.  ABELE V. MARKLE, 452 F.2D 1121,
1125 (CA2 1971); CROSSEN V. BRECKENRIDGE, 446 F.2D 833, 838-839 (CA6
1971); POE V. MENGHINI, 339 F.SUPP.  986, 990-991 (KAN. 1972).  SEE
TRUAX V. RAICH, 239 U.S. 33 (1915).  INDEED, WE DO NOT READ THE
APPELLEE'S BRIEF AS REALLY ASSERTING ANYTHING TO THE CONTRARY.  THE
"LOGICAL NEXUS BETWEEN THE STATUS ASSERTED ANT THE CLAIM SOUGHT TO BE
ADJUDICATED," FLAST V. COHEN, 392 U.S.,AT 102, AND THE NECESSARY DEGREE
OF CONTENTIOUSNESS, GOLDEN V. ZWICKLER, 394 U.S. 103 (1969), ARE BOTH
PRESENT. 

THE APPELLEE NOTES, HOWEVER, THAT THE RECORD DOES NOT DISCLOSE THAT
ROE WAS PREGNANT AT THE TIME OF THE DISTRICT COURT HEARING ON MAY 22,
1970, /6/  OR ON THE FOLLOWING JUNE 17 WHEN THE COURT'S OPINION AND
JUDGMENT WERE FILED.  AND HE SUGGESTS THAT ROE'S CASE MUST NOW BE MOOT
BECAUSE SHE AND ALL OTHER MEMBERS OF HER CLASS ARE NO LONGER SUBJECT TO
ANY 1970 PREGNANCY. 

THE USUAL RULE IN FEDERAL CASES IS THAT AN ACTUAL CONTROVERSY MUST
EXIST AT STAGES OF APPELLATE OR CERTIORARI REVIEW, AND NOT SIMPLY AT
THE DATE THE ACTION IS INITIATED.  UNITED STATES V. MUNSINGWEAR, INC.,
340 U.S. 36 (1950); GOLDEN V. ZWICKLER, SUPRA; SEC V. MEDICAL COMMITTEE
FOR HUMAN RIGHTS, 404 U.S. 403 (1972). 

BUT WHEN, AS HERE PREGNANCY IS A SIGNIFICANT FACT IN THE LITIGATION,
THE NORMAL 266-DAY HUMAN GESTATION PERIOD IS SO SHORT THAT THE
PREGNANCY WILL COME TO TERM BEFORE THE USUAL APPELLATE PROCESS IS
COMPLETE.  IF THAT TERMINATION MAKES A CASE MOOT, PREGNANCY LITIGATION
SELDOM WILL SURVIVE MUCH BEYOND THE TRIAL STAGE, AND APPELLATE REVIEW
WILL BE EFFECTIVELY DENIED.  OUR LAW SHOULD NOT BE THAT RIGID. 
PREGNANCY OFTEN COMES MORE THAN ONCE TO THE SAME WOMAN, AND IN THE
GENERAL POPULATION, IF MAN IS TO SURVIVE, IT WILL ALWAYS BE WITH US.
PREGNANCY PROVIDES A CLASSIC JUSTIFICATION FOR A CONCLUSION OF
NONMOOTNESS.  IT TRULY COULD BE "CAPABLE OF REPETITION, YET EVADING
REVIEW."  SOUTHERN PACIFIC TERMINAL CO. V. ICC, 219 U.S. 498, 515
(1911).  SEE MOORE V. OGILVIE, 394 U.S. 814, 816 (1969); CARROLL V.
PRINCESS ANNE, 393 U.S. 175, 178-179 (1968); UNITED STATES V. W. T.
GRANT CO., 345 U.S. 629, 632-633 (1953). 

WE, THEREFORE, AGREE WITH THE DISTRICT COURT THAT JANE ROE HAD
STANDING TO UNDERTAKE THIS LITIGATION, THAT SHE PRESENTED A JUSTICIABLE
CONTROVERSY, AND THAT THE TERMINATION OF HER 1970 PREGNANCY HAS NOT
RENDERED HER CASE MOOT.     B. DR. HALLFORD.  THE DOCTOR'S POSITION IS
DIFFERENT.  HE ENTERED ROE'S LITIGATION AS A PLAINTIFF-INTERVENOR,
ALLEGING IN HIS COMPLAINT THAT HE: 

     "(IN THE PAST HAS BEEN ARRESTED FOR VIOLATING THE TEXAS

  ABORTION LAWS AND AT THE PRESENT TIME STANDS CHARGED BY

  INDICTMENT WITH VIOLATING SAID LAWS IN THE CRIMINAL DISTRICT

  COURT OF DALLAS COUNTY, TEXAS TO-WIT:  (1) THE STATE OF TEXAS VS.

  JAMES H. HALLFORD, NO. C-69-5307-IH, AND (2) THE STATE OF TEXAS

  VS. JAMES H. HALLFORD, NO. C-69-2524-H.

IN BOTH CASES THE DEFENDANT IS CHARGED WITH ABORTION . . . ."  IN HIS
APPLICATION FOR LEAVE TO INTERVENE, THE DOCTOR MADE LIKE
REPRESENTATIONS AS TO THE ABORTION CHARGES PENDING IN THE STATE COURT. 
THESE REPRESENTATIONS WERE ALSO REPEATED IN THE AFFIDAVIT HE EXECUTED
AND FILED IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT. 

DR. HALLFORD IS, THEREFORE, IN THE POSITION OF SEEKING, IN A FEDERAL
COURT, DECLARATORY AND INJUNCTIVE RELIEF WITH RESPECT TO THE SAME
STATUTES UNDER WHICH HE STANDS CHARGED IN CRIMINAL PROSECUTIONS
SIMULTANEOUSLY PENDING IN STATE COURT.  ALTHOUGH HE STATED THAT HE HAS
BEEN ARRESTED IN THE PAST FOR VIOLATING THE STATE'S ABORTION LAWS, HE
MAKES NO ALLEGATION OF ANY SUBSTANTIAL AND IMMEDIATE THREAT TO ANY
FEDERALLY PROTECTED RIGHT THAT CANNOT BE ASSERTED IN HIS DEFENSE
AGAINST THE STATE PROSECUTION.  NEITHER IS THERE ANY ALLEGATION OF
HARASSMENT OR BAD-FAITH PROSECUTION.  IN ORDER TO ESCAPE THE RULE
ARTICULATED IN THE CASES CITED IN THE NEXT PARAGRAPH OF THIS OPINION
THAT, ABSENT HARRASSMENT AND BAD FAITH, A DEFENDANT IN A PENDING STATE
CRIMINAL CASE CANNOT AFFIRMATIVELY CHALLENGE IN FEDERAL COURT THE
STATUTES UNDER WHICH THE STATE IS PROSECUTING HIM, DR. HALLFORD SEEKS
TO DISTINGUISH HIS STATUS AS A PRESENT STATE DEFENDANT FROM HIS STATUS
AS A "POTENTIAL FUTURE DEFENDANT, AND TO ASSERT ONLY THE LATTER FOR
STANDING PURPOSES HERE. 

WE SEE NO MERIT IN THAT DISTINCTION.  OUR DECISION IN SAMUELS V.
MACKELL, 401 U.S. 66 (1971), COMPELS THE CONCLUSION THAT THE DISTRICT
COURT ERRED WHEN IT GRANTED DECLARATORY RELIEF TO DR. HALLFORD INSTEAD
OF REFRAINING FROM SO DOING.  THE COURT, OF COURSE, WAS CORRECT IN
REFUSING TO GRANT INJUNCTIVE RELIEF TO THE DOCTOR.  THE REASONS
SUPPORTIVE OF THAT ACTION, HOWEVER, ARE THOSE EXPRESSED IN SAMUELS V.
MACKELL, SUPRA, AND IN YOUNGER V. HARRIS, 401 U.S. 37 (1971); BOYLE V.
LANDRY, 401 U.S. 77 (1971); PEREZ V. LEDESMA, 401 U.S. 82 (1971); AND
BYRNE V. KARALEXIS, 401 U.S. 216 (1971).  SEE ALSO DOMBROWSKI V.
PFISTER, 380 U.S. 479 (1965).  WE NOTE, IN PASSING, THAT YOUNGER AND
ITS COMPANION CASES WERE DECIDED AFTER THE THREE-JUDGE DISTRICT COURT
DECISION IN THIS CASE. 

DR. HALLFORD'S COMPLAINT IN INTERVENTION, THEREFORE, IS TO BE
DISMISSED.  /7/  HE IS REMITTED TO HIS DEFENSES IN THE STATE CRIMINAL
PROCEEDINGS AGAINST HIM.  WE REVERSE THE JUDGMENT OF THE DISTRICT COURT
INSOFAR AS IT GRANTED DR. HALLFORD RELIEF AND FAILED TO DISMISS HIS
COMPLAINT IN INTERVENTION. 

C. THE DOES.  IN VIEW OF OUR RULING AS TO ROE'S STANDING IN HER
CASE, THE ISSUE OF THE DOES' STANDING IN THEIR CASE HAS LITTLE
SIGNIFICANCE.  THE CLAIMS THEY ASSERT ARE ESSENTIALLY THE SAME AS THOSE
OF ROE, AND THEY ATTACK THE SAME STATUTES.  NEVERTHELESS, WE BRIEFLY
NOTE THE DOES' POSTURE. 

THEIR PLEADINGS PRESENT THEM AS A CHILDLESS MARRIED COUPLE, THE
WOMAN NOT BEING PREGNANT, WHO HAVE NO DESIRE TO HAVE CHILDREN AT THIS
TIME BECAUSE OF THEIR HAVING RECEIVED MEDICAL ADVICE THAT MRS. DOE
SHOULD AVOID PREGNANCY, AND FOR "OTHER HIGHLY PERSONAL REASONS."  BUT
THEY "FEAR . . . THEY MAY FACE THE PROSPECT OF BECOMING PARENTS."  AND
IF PREGNANCY ENSUES, THEY "WOULD WANT TO TERMINATE" IT BY AN ABORTION. 
THEY ASSERT AN INABILITY TO OBTAIN AN ABORTION LEGALLY IN TEXAS AND,
CONSEQUENTLY, THE PROSPECT OF OBTAINING AN ILLEGAL ABORTION THERE OR OF
GOING OUTSIDE TEXAS TO SOME PLACE WHERE THE PROCEDURE COULD BE OBTAINED
LEGALLY AND COMPETENTLY. 

WE THUS HAVE AS PLAINTIFFS A MARRIED COUPLE WHO HAVE, AS THEIR
ASSERTED IMMEDIATE AND PRESENT INJURY, ONLY AN ALLEGED "DETRIMENTAL
EFFECT UPON (THEIR) MARITAL HAPPINESS" BECAUSE THEY ARE FORCED TO "THE
CHOICE OF REFRAINING FROM NORMAL SEXUAL RELATIONS OR OF ENDANGERING
MARY DOE'S HEALTH THROUGH A POSSIBLE PREGNANCY."  THEIR CLAIM IS THAT
SOMETIME IN THE FUTURE MRS. DOE MIGHT BECOME PREGNANT BECAUSE OF
POSSIBLE FAILURE OF CONTRACEPTIVE MEASURES, AND AT THAT TIME IN THE
FUTURE SHE MIGHT WANT AN ABORTION THAT MIGHT THEN BE ILLEGAL UNDER THE
TEXAS STATUTES. 

THIS VERY PHRASING OF THE DOES' POSITION REVEALS ITS SPECULATIVE
CHARACTER.  THEIR ALLEGED INJURY RESTS ON POSSIBLE FUTURE
UNPREPAREDNESS FOR PARENTHOOD, AND POSSIBLE FUTURE IMPAIRMENT OF
HEALTH.  ANY ONE OR MORE OF THESE SEVERAL POSSIBILITIES MAY NOT TAKE
PLACE AND ALL MAY NOT COMBINE.  IN THE DOES' ESTIMATION, THESE
POSSIBILITIES MIGHT HAVE SOME REAL OR IMAGINED IMPACT UPON THEIR
MARITAL HAPPINESS.  BUT WE ARE NOT PREPARED TO SAY THAT THE BARE
ALLEGATION OF SO INDIRECT AN INJURY IS SUFFICIENT TO PRESENT AN ACTUAL
CASE OR CONTROVERSY.  YOUNGER V. HARRIS, 401 U.S.,AT 41-42; GOLDEN V.
ZWICKLER, 394 U.S.,AT 109-110; ABELE V. MARKLE, 452 F.2D, AT 1124-1125;
CROSSEN V. BRECKENRIDGE, 446 F.2D, AT 839.  THE DOES' CLAIM FALLS FAR
SHORT OF THOSE RESOLVED OTHERWISE IN THE CASES THAT THE DOES URGE UPON
US, NAMELY, INVESTMENT CO. INSTITUTE V. CAMP, 401 U.S. 617 (1971); DATA
PROCESSING SERVICE V. CAMP, 397 U.S. 150 (1970); AND EPPERSON V.
ARKANSAS, 393 U.S. 97 (1968).  SEE ALSO TRUAX V. RAICH, 239 U.S. 33
(1915). 

THE DOES THEREFORE ARE NOT APPROPRIATE PLAINTIFFS IN THIS
LITIGATION.  THEIR COMPLAINT WAS PROPERLY DISMISSED BY THE DISTRICT
COURT, AND WE AFFIRM THAT DISMISSAL. 

        V 

THE PRINCIPAL THRUST OF APPELLANT'S ATTACK ON THE TEXAS STATUTES IS
THAT THEY IMPROPERLY INVADE A RIGHT, SAID TO BE POSSESSED BY THE
PREGNANT WOMAN, TO CHOOSE TO TERMINATE HER PREGNANCY.  APPELLANT WOULD
DISCOVER THIS RIGHT IN THE CONCEPT OF PERSONAL "LIBERTY" EMBODIED IN
THE FOURTEENTH AMENDMENT'S DUE PROCESS CLAUSE; OR IN PERSONAL, MARITAL,
FAMILIAL, AND SEXUAL PRIVACY SAID TO BE PROTECTED BY THE BILL OF RIGHTS
OR ITS PENUMBRAS, SEE GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965);
EISENSTADT V. BAIRD, 405 U.S. 438 (1972); ID., AT 460 (WHITE, J.,
CONCURRING IN RESULT); OR AMONG THOSE RIGHTS RESERVED TO THE PEOPLE BY
THE NINTH AMENDMENT, GRISWOLD V. CONNECTICUT, 381 U.S.,AT 486
(GOLDBERG, J., CONCURRING).  BEFORE ADDRESSING THIS CLAIM, WE FEEL IT
DESIRABLE BRIEFLY TO SURVEY, IN SEVERAL ASPECTS, THE HISTORY OF
ABORTION, FOR SUCH INSIGHT AS THAT HISTORY MAY AFFORD US, AND THEN TO
EXAMINE THE STATE PURPOSES AND INTERESTS BEHIND THE CRIMINAL ABORTION
LAWS. 

        VI 

IT PERHAPS IS NOT GENERALLY APPRECIATED THAT THE RESTRICTIVE
CRIMINAL ABORTION LAWS IN EFFECT IN A MAJORITY OF STATES TODAY ARE OF
RELATIVELY RECENT VINTAGE.  THOSE LAWS, GENERALLY PROSCRIBING ABORTION
OR ITS ATTEMPT AT ANY TIME DURING PREGNANCY EXCEPT WHEN NECESSARY TO
PRESERVE THE PREGNANT WOMAN'S LIFE, ARE NOT OF ANCIENT OR EVEN OF
COMMON-LAW ORIGIN.  INSTEAD, THEY DERIVE FROM STATUTORY CHANGES
EFFECTED, FOR THE MOST PART, IN THE LATTER HALF OF THE 19TH CENTURY. 

1.  ANCIENT ATTITUDES.  THESE ARE NOT CAPABLE OF PRECISE
DETERMINATION.  WE ARE TOLD THAT AT THE TIME OF THE PERSIAN EMPIRE
ABORTIFACIENTS WERE KNOWN AND THAT CRIMINAL ABORTIONS WERE SEVERELY
PUNISHED.  /8/  WE ARE ALSO TOLD, HOWEVER, THAT ABORTION WAS PRACTICED
IN GREEK TIMES AS WELL AS IN THE ROMAN ERA, /9/  AND THAT "IT WAS
RESORTED TO WITHOUT SCRUPLE."  /10/  THE EPHESIAN, SORANOS, OFTEN
DESCRIBED AS THE GREATEST OF THE ANCIENT GYNECOLOGISTS, APPEARS TO HAVE
BEEN GENERALLY OPPOSED TO ROME'S PREVAILING FREE-ABORTION PRACTICES. 
HE FOUND IT NECESSARY TO THINK FIRST OF THE LIFE OF THE MOTHER, AND HE
RESORTED TO ABORTION WHEN, UPON THIS STANDARD, HE FELT THE PROCEDURE
ADVISABLE.  /11/  GREEK AND ROMAN LAW AFFORDED LITTLE PROTECTION TO THE
UNBORN.  IF ABORTION WAS PROSECUTED IN SOME PLACES, IT SEEMS TO HAVE
BEEN BASED ON A CONCEPT OF A VIOLATION OF THE FATHER'S RIGHT TO HIS
OFFSPRING.  ANCIENT RELIGION DID NOT BAR ABORTION.  /12/ 

2.  THE HIPPOCRATIC OATH.  WHAT THEN OF THE FAMOUS OATH THAT HAS
STOOD SO LONG AS THE ETHICAL GUIDE OF THE MEDICAL PROFESSION AND THAT
BEARS THE NAME OF THE GREAT GREEK (460 (?)-377 (?)  B.C.), WHO HAD BEEN
DESCRIBED AS THE FATHER OF MEDICINE, THE "WISEST AND THE GREATEST
PRACTITIONER OF HIS ART," AND THE "MOST IMPORTANT AND MOST COMPLETE
MEDICAL PERSONALITY OF ANTIQUITY," WHO DOMINATED THE MEDICAL SCHOOLS OF
HIS TIME, AND WHO TYPIFIED THE SUM OF THE MEDICAL KNOWLEDGE OF THE
PAST?  /13/  THE OATH VARIES SOMEWHAT ACCORDING TO THE PARTICULAR
TRANSLATION, BUT IN ANY TRANSLATION THE CONTENT IS CLEAR:  "I WILL GIVE
NO DEADLY MEDICINE TO ANYONE IF ASKED, NOR SUGGEST ANY SUCH COUNSEL;
AND IN LIKE MANNER I WILL NOT GIVE TO A WOMAN A PESSARY TO PRODUCE
ABORTION,"  /14/  OR "I WILL NEITHER GIVE A DEADLY DRUG TO ANYBODY IF
ASKED FOR IT, NOR WILL I MAKE A SUGGESTION TO THIS EFFECT.  SIMILARLY,
I WILL NOT GIVE TO A WOMAN AN ABORTIVE REMEDY."  /15/ 

ALTHOUGH THE OATH IS NOT MENTIONED IN ANY OF THE PRINCIPAL BRIEFS IN
THIS CASE OR IN DOE V. BOLTON, POST, P. 179, IT REPRESENTS THE APEX OF
THE DEVELOPMENT OF STRICT ETHICAL CONCEPTS IN MEDICINE, AND ITS
INFLUENCE ENDURES TO THIS DAY.  WHY DID NOT THE AUTHORITY OF
HIPPOCRATES DISSUADE ABORTION PRACTICE IN HIS TIME AND THAT OF ROME? 
THE LATE DR. EDELSTEIN PROVIDES US WITH A THEORY:  /16/  THE OATH WAS
NOT UNCONTESTED EVEN IN HIPPOCRATES' DAY; ONLY THE PYTHAGOREAN SCHOOL
OF PHILOSOPHERS FROWNED UPON THE RELATED ACT OF SUICIDE.  MOST GREEK
THINKERS, ON THE OTHER HAND, COMMENDED ABORTION, AT LEAST PRIOR TO
VIABILITY.  SEE PLATO, REPUBLIC, V, 461; ARISTOTLE, POLITICS, VII,
1335B 25.  FOR THE PYTHAGOREANS, HOWEVER, IT WAS A MATTER OF DOGMA. 
FOR THEM THE EMBRYO WAS ANIMATE FROM THE MOMENT OF CONCEPTION, AND
ABORTION MEANT DESTRUCTION OF A LIVING BEING.  THE ABORTION CLAUSE OF
THE OATH, THEREFORE, "ECHOES PYTHAGOREAN DOCTRINES," AND "(IN NO OTHER
STRATUM OF GREEK OPINION WERE SUCH VIEWS HELD OR PROPOSED IN THE SAME
SPIRIT OF UNCOMPROMISING AUSTERITY."  /17/ 

DR. EDELSTEIN THEN CONCLUDES THAT THE OATH ORIGINATED IN A GROUP
REPRESENTING ONLY A SMALL SEGMENT OF GREEK OPINION AND THAT IT
CERTAINLY WAS NOT ACCEPTED BY ALL ANCIENT PHYSICIANS.  HE POINTS OUT
THAT MEDICAL WRITINGS DOWN TO GALEN (A.D. 130-200) "GIVE EVIDENCE OF
THE VIOLATION OF ALMOST EVERY ONE OF ITS INJUNCTIONS."  /18/  BUT WITH
THE END OF ANTIQUITY A DECIDED CHANGE TOOK PLACE.  RESISTANCE AGAINST
SUICIDE AND AGAINST ABORTION BECAME COMMON.  THE OATH CAME TO BE
POPULAR.  THE EMERGING TEACHINGS OF CHRISTIANITY WERE IN AGREEMENT WITH
THE PYTHAGOREAN ETHIC.  THE OATH "BECAME THE NUCLEUS OF ALL MEDICAL
ETHICS" AND "WAS APPLAUDED AS THE EMBODIMENT OF TRUTH."  THUS, SUGGESTS
DR. EDELSTEIN, IT IS "A PYTHAGOREAN MANIFESTO AND NOT THE EXPRESSION OF
AN ABSOLUTE STANDARD OF MEDICAL CONDUCT."  /19/ 

THIS, IT SEEMS TO US, IS A SATISFACTORY AND ACCEPTABLE EXPLANATION
OF THE HIPPOCRATIC OATH'S APPARENT RIGIDITY.  IT ENABLES US TO
UNDERSTAND, IN HISTORICAL CONTEXT, A LONG-ACCEPTED AND REVERSED
STATEMENT OF MEDICAL ETHICS. 

3.  THE COMMON LAW.  IT IS UNDISPUTED THAT AT COMMON LAW, ABORTION
PERFORMED BEFORE "QUICKENING"-- THE FIRST RECOGNIZABLE MOVEMENT OF THE
FETUS IN UTERO, APPEARING USUALLY FROM THE 16TH TO THE 18TH WEEK OF
PREGNANCY /20/  -- WAS NOT AN INDICTABLE OFFENSE.  /21/  THE ABSENCE OF
A COMMON-LAW CRIME FOR PRE-QUICKENING ABORTION APPEARS TO HAVE
DEVELOPED FROM A CONFLUENCE OF EARLIER PHILOSOPHICAL, THEOLOGICAL, AND
CIVIL AND CANON LAW CONCEPTS OF WHEN LIFE BEGINS.  THESE DISCIPLINES
VARIOUSLY APPROACHED THE QUESTION IN TERMS OF THE POINT AT WHICH THE
EMBRYO OR FETUS BECAME "FORMED" OR RECOGNIZABLY HUMAN, OR IN TERMS OF
WHEN A "PERSON" CAME INTO BEING, THAT IS, INFUSED WITH A "SOUL" OR
"ANIMATED."  A LOOSE CONSENSUS EVOLVED IN EARLY ENGLISH LAW THAT THESE
EVENTS OCCURRED AT SOME POINT BETWEEN CONCEPTION AND LIVE BIRTH.  /22
THIS WAS "MEDIATE ANIMATION."  ALTHOUGH CHRISTIAN THEOLOGY AND THE
CANON LAW CAME TO FIX THE POINT OF ANIMATION AT 40 DAYS FOR A MALE AND
80 DAYS FOR A FEMALE, A VIEW THAT PERSISTED UNTIL THE 19TH CENTURY,
THERE WAS OTHERWISE LITTLE AGREEMENT ABOUT THE PRECISE TIME OF
FORMATION OR ANIMATION.  THERE WAS AGREEMENT, HOWEVER, THAT PRIOR TO
THIS POINT THE FETUS WAS TO BE REGARDED AS PART OF THE MOTHER, AND ITS
DESTRUCTION, THEREFORE, WAS NOT HOMICIDE.  DUE TO CONTINUED UNCERTAINTY
ABOUT THE PRECISE TIME WHEN ANIMATION OCCURRED, TO THE LACK OF ANY
EMPIRICAL BASIS FOR THE 40-80-DAY VIEW, AND PERHAPS TO AQUINAS'
DEFINITION OF MOVEMENT AS ONE OF THE TWO FIRST PRINCIPLES OF LIFE,
BRACTON FOCUSED UPON QUICKENING AS THE CRITICAL POINT.  THE
SIGNIFICANCE OF QUICKENING WAS ECHOED BY LATER COMMON-LAW SCHOLARS AND
FOUND ITS WAY INTO THE RECEIVED COMMON LAW IN THIS COUNTRY. 

WHETHER ABORTION OF A QUICK FETUS WAS A FELONY AT COMMON LAW, OR
EVEN A LESSER CRIME, IS STILL DISPUTED.  BRACTON, WRITING EARLY IN THE
13TH CENTURY, THOUGH IT HOMICIDE.  /23/  BUT THE LATER AND PREDOMINANT
VIEW, FOLLOWING THE GREAT COMMON-LAW SCHOLARS, HAS BEEN THAT IT WAS, AT
MOST, A LESSER OFFENSE.  IN A FREQUENTLY CITED PASSAGE, COKE TOOK THE
POSITION THAT ABORTION OF A WOMAN "QUICK WITH CHILDE" IS "A GREAT
MISPRISION, AND NO MURDER."  /24/  BLACKSTONE FOLLOWED, SAYING THAT
WHILE ABORTION AFTER QUICKENING HAD ONCE BEEN CONSIDERED MANSLAUGHTER
(THOUGH NOT MURDER), "MODERN LAW"  TOOK A LESS SEVERE VIEW.  /25/  A
RECENT REVIEW OF THE COMMON-LAW PRECEDENTS ARGUES, HOWEVER, THAT THOSE
PRECEDENTS CONTRADICT COKE AND THAT EVEN POST-QUICKENING ABORTION WAS
NEVER ESTABLISHED AS A COMMON-LAW CRIME.  /26/  THIS IS OF SOME
IMPORTANCE BECAUSE WHILE MOST AMERICAN COURTS RULED, IN HOLDING OR
DICTUM, THAT ABORTION OF AN UNQUICKENED FETUS WAS NOT CRIMINAL UNDER
THEIR RECEIVED COMMON LAW, /27/  OTHERS FOLLOWED COKE IN STATING THAT
ABORTION OF A QUICK FETUS WAS A "MISPRISION," A TERM THEY TRANSLATED TO
MEAN "MISDEMEANOR."  /28/  THAT THEIR RELIANCE ON COKE ON THIS ASPECT
OF THE LAW WAS UNCRITICAL AND, APPARENTLY IN ALL THE REPORTED CASES,
DICTUM (DUE PROBABLY TO THE PAUCITY OF COMMON-LAW PROSECUTIONS FOR POST
QUICKENING ABORTION), MAKES IT NOW APPEAR DOUBTFUL THAT ABORTION WAS
EVER FIRMLY ESTABLISHED AS A COMMON-LAW CRIME EVEN WITH RESPECT TO THE
DESTRUCTION OF A QUICK FETUS. 

4.  THE ENGLISH STATUTORY LAW.  ENGLAND'S FIRST CRIMINAL ABORTION
STATUTE, LORD ELLENBOROUGH'S ACT, 43 GEO. 3, C. 58, CAME IN 1803.  IT
MADE ABORTION OF A QUICK FETUS, SEC. 1, A CAPITAL CRIME, BUT IN SEC. 2
IT PROVIDED LESSER PENALTIES FOR THE FELONY OF ABORTION BEFORE
QUICKENING, AND THUS PRESERVED THE "QUICKENING" DISTINCTION.  THIS
CONTRAST WAS CONTINUED IN THE GENERAL REVISION OF 1828, 9 GEO. 4, C.
31, SEC. 13.  IT DISAPPEARED, HOWEVER, TOGETHER WITH THE DEATH PENALTY,
IN 1837, 7 WILL.  4 & 1 VICT.,C. 85, SEC. 6, AND DID NOT REAPPEAR IN
THE OFFENSES AGAINST THE PERSON ACT OF 1861, 24 & 25 VICT.,C. 100, SEC.
59, THAT FORMED THE CORE OF ENGLISH ANTI-ABORTION LAW UNTIL THE
LIBERALIZING REFORMS OF 1967.  IN 1929, THE INFANT LIFE (PRESERVATION)
ACT, 19 & 20 GEO. 5, C. 34, CAME INTO BEING.  ITS EMPHASIS WAS UPON THE
DESTRUCTION OF "THE LIFE OF A CHILD CAPABLE OF BEING BORN ALIVE."  IT
MADE A WILLFUL ACT PERFORMED WITH THE NECESSARY INTENT A FELONY.  IT
CONTAINED A PROVISO THAT ONE WAS NOT TO BE FOUND GUILTY OF THE OFFENSE
"UNLESS IT IS PROVED THAT THE ACT WHICH CAUSED THE DEATH OF THE CHILD
WAS NOT DONE IN GOOD FAITH FOR THE PURPOSE ONLY OF PRESERVING THE LIFE
OF THE MOTHER." 

A SEEMINGLY NOTABLE DEVELOPMENT IN THE ENGLISH LAW WAS THE CASE OF
REX V. BOURNE, (1939) 1 K.B. 687.  THIS CASE APPARENTLY ANSWERED IN THE
AFFIRMATIVE THE QUESTION WHETHER AN ABORTION NECESSARY TO PRESERVE THE
LIFE OF THE PREGNANT WOMAN WAS EXCEPTED FROM THE CRIMINAL PENALTIES OF
THE 1861 ACT.  IN HIS INSTRUCTIONS TO THE JURY, JUDGE MACNAGHTEN
REFERRED TO THE 1929 ACT, AND OBSERVED THAT THAT ACT RELATED TO "THE
CASE WHERE A CHILD IS KILLED BY A WILLFUL ACT AT THE TIME WHEN IT IS
BEING DELIVERED IN THE ORDINARY COURSE OF NATURE."  ID., AT 691.  HE
CONCLUDED THAT THE 1861 ACT'S USE OF THE WORD "UNLAWFULLY," IMPORTED
THE SAME MEANING EXPRESSED BY THE SPECIFIC PROVISO IN THE 1929 ACT,
EVEN THOUGH THERE WAS NO MENTION OF PRESERVING THE MOTHER'S LIFE IN THE
1861 ACT.  HE THEN CONSTRUED THE PHRASE "PRESERVING THE LIFE OF THE
MOTHER" BROADLY, THAT IS, "IN A REASONABLE SENSE," TO INCLUDE A SERIOUS
AND PERMANENT THREAT TO THE MOTHER'S HEALTH, AND INSTRUCTED THE JURY TO
ACQUIT DR. BOURNE IF IT FOUND HE HAD ACTED IN A GOOD-FAITH BELIEF THAT
THE ABORTION WAS NECESSARY FOR THIS PURPOSE.  ID., AT 693-694.  THE
JURY DID ACQUIT. 

RECENTLY, PARLIAMENT ENACTED A NEW ABORTION LAW.  THIS IS THE
ABORTION ACT OF 1967, 15 & 16 ELIZ.  2, C. 87.  THE ACT PERMITS A
LICENSED PHYSICIAN TO PERFORM AN ABORTION WHERE TWO OTHER LICENSED
PHYSICIANS AGREE (A) "THAT THE CONTINUANCE OF THE PREGNANCY WOULD
INVOLVE RISK TO THE LIFE OF THE PREGNANT WOMAN, OR OF INJURY TO THE
PHYSICAL OR MENTAL HEALTH OF THE PREGNANT WOMAN OR ANY EXISTING
CHILDREN OF HER FAMILY, GREATER THAN IF THE PREGNANCY WERE TERMINATED,"
OR (B) "THAT THERE IS A SUBSTANTIAL RISK THAT IF THE CHILD WERE BORN
IT WOULD SUFFER FROM SUCH PHYSICAL OR MENTAL ABNORMALITIES AS TO BE
SERIOUSLY HANDICAPPED."  THE ACT ALSO PROVIDES THAT, IN MAKING THIS
DETERMINATION, "ACCOUNT MAY BE TAKEN OF THE PREGNANT WOMAN'S ACTUAL OR
REASONABLY FORESEEABLE ENVIRONMENT."  IT ALSO PERMITS A PHYSICIAN,
WITHOUT THE CONCURRENCE OF OTHERS, TO TERMINATE A PREGNANCY WHERE HE IS
OF THE GOOD-FAITH OPINION THAT THE ABORTION "IS IMMEDIATELY NECESSARY
TO SAVE THE LIFE OR TO PREVENT GRAVE PERMANENT INJURY TO THE PHYSICAL
OR MENTAL HEALTH OF THE PREGNANT WOMAN." 

5.  THE AMERICAN LAW.  IN THIS COUNTRY, THE LAW IN EFFECT IN ALL BUT
A FEW STATES UNTIL MID-19TH CENTURY WAS THE PRE-EXISTING ENGLISH COMMON
LAW.  CONNECTICUT, THE FIRST STATE TO ENACT ABORTION LEGISLATION,
ADOPTED IN 1821 THAT PART OF LORD ELLENBOROUGH'S ACT THAT RELATED TO A
WOMAN "QUICK WITH CHILD."  /29/  THE DEATH PENALTY WAS NOT IMPOSED. 
ABORTION BEFORE QUICKENING WAS MADE A CRIME IN THAT STATE ONLY IN
1860.  /30/  IN 1828, NEW YORK ENACTED LEGISLATION /31/  THAT, IN TWO
RESPECTS, WAS TO SERVE AS A MODEL FOR EARLY ANTI-ABORTION STATUTES. 
FIRST, WHILE BARRING DESTRUCTION OF AN UNQUICKENED FETUS AS WELL AS A
QUICK FETUS, IT MADE THE FORMER ONLY A MISDEMEANOR, BUT THE LATTER
SECOND-DEGREE MANSLAUGHTER.  SECOND, IT INCORPORATED A CONCEPT OF
THERAPEUTIC ABORTION BY PROVIDING THAT AN ABORTION WAS EXCUSED IF IT
"SHALL HAVE BEEN NECESSARY TO PRESERVE THE LIFE OF SUCH MOTHER, OR
SHALL HAVE BEEN ADVISED BY TWO PHYSICIANS TO BE NECESSARY FOR SUCH
PURPOSE."  BY 1840, WHEN TEXAS HAD RECEIVED THE COMMON LAW, /32/  ONLY
EIGHT AMERICAN STATES HAD STATUTES DEALING WITH ABORTION.  /33/  IT WAS
NOT UNTIL AFTER THE WAR BETWEEN THE STATES THAT LEGISLATION BEGAN
GENERALLY TO REPLACE THE COMMON LAW.  MOST OF THESE INITIAL STATUTES
DEALT SEVERLY WITH ABORTION AFTER QUICKENING BUT WERE LENIENT WITH IT
BEFORE QUICKENING.  MOST PUNISHED ATTEMPTS EQUALLY WITH COMPLETED
ABORTIONS.  WHILE MANY STATUTES INCLUDED THE EXCEPTION FOR AN ABORTION
THOUGHT BY ONE OR MORE PHYSICIANS TO BE NECESSARY TO SAVE THE MOTHER'S
LIFE, THAT PROVISION SOON DISAPPEARED AND THE TYPICAL LAW REQUIRED THAT
THE PROCEDURE ACTUALLY BE NECESSARY FOR THAT PURPOSE. 

GRADUALLY, IN THE MIDDLE AND LATE 19TH CENTURY THE QUICKENING
DISTINCTION DISAPPEARED FROM THE STATUTORY LAW OF MOST STATES AND THE
DEGREE OF THE OFFENSE AND THE PENALTIES WERE INCREASED.  BY THE END OF
THE 1950'S, A LARGE MAJORITY OF THE JURISDICTIONS BANNED ABORTION,
HOWEVER AND WHENEVER PERFORMED, UNLESS DONE TO SAVE OR PRESERVE THE
LIFE OF THE MOTHER.  /34/  THE EXCEPTIONS, ALABAMA AND THE DISTRICT OF
COLUMBIA, PERMITTED ABORTION TO PRESERVE THE MOTHER'S HEALTH.  /35/
THREE STATES PERMITTED ABORTIONS THAT WERE NOT "UNLAWFULLY" PERFORMED
OR THAT WERE NOT "WITHOUT LAWFUL JUSTIFICATION," LEAVING INTERPRETATION
OF THOSE STANDARDS TO THE COURTS.  /36/  IN THE PAST SEVERAL YEARS,
HOWEVER, A TREND TOWARD LIBERALIZATION OF ABORTION STATUTES HAS
RESULTED IN ADOPTION, BY ABOUT ONE-THIRD OF THE STATES, OF LESS
STRINGENT LAWS, MOST OF THEM PATTERNED AFTER THE ALI MODEL PENAL CODE,
SEC. 230.3, /37/  SET FORTH AS APPENDIX B TO THE OPINION IN DOE V.
BOLTON, POST, P. 205. 

IT IS THUS APPARENT THAT AT COMMON LAW, AT THE TIME OF THE ADOPTION
OF OUR CONSTITUTION, AND THROUGHOUT THE MAJOR PORTION OF THE 19TH
CENTURY, ABORTION WAS VIEWED WITH LESS DISFAVOR THAN UNDER MOST
AMERICAN STATUTES CURRENTLY IN EFFECT.  PHRASING IT ANOTHER WAY, A
WOMAN ENJOYED A SUBSTANTIALLY BROADER RIGHT TO TERMINATE A PREGNANCY
THAN SHE DOES IN MOST STATES TODAY.  AT LEAST WITH RESPECT TO THE EARLY
STAGE OF PREGNANCY, AND VERY POSSIBLY WITHOUT SUCH A LIMITATION, THE
OPPORTUNITY TO MAKE THIS CHOICE WAS PRESENT IN THIS COUNTRY WELL INTO
THE 19TH CENTURY.  EVEN LATER, THE LAW CONTINUED FOR SOME TIME TO TREAT
LESS PUNITIVELY AN ABORTION PROCURED IN EARLY PREGNANCY. 

6.  THE POSITION OF THE AMERICAN MEDICAL ASSOCIATION.  THE ANTI
ABORTION MOOD PREVALENT IN THIS COUNTRY IN THE LATE 19TH CENTURY WAS
SHARED BY THE MEDICAL PROFESSION.  INDEED, THE ATTITUDE OF THE
PROFESSION MAY HAVE PLAYED A SIGNIFICANT ROLE IN THE ENACTMENT OF
STRINGENT CRIMINAL ABORTION LEGISLATION DURING THE PERIOD. 

AN AMA COMMITTEE ON CRIMINAL ABORTION WAS APPOINTED IN MAY 1857.  IT
PRESENTED ITS REPORT, 12 TRANS.OF THE AM.MED.ASSN.  73-78 (1859), TO
THE TWELFTH ANNUAL MEETING.  THAT REPORT OBSERVED THAT THE COMMITTEE
HAD BEEN APPOINTED TO INVESTIGATE CRIMINAL ABORTION "WITH A VIEW TO ITS
GENERAL SUPPRESSION."  IT DEPLORED ABORTION AND ITS FREQUENCY AND IT
LISTED THREE CAUSES OF "THIS GENERAL DEMORALIZATION": 

"THE FIRST OF THESE CAUSES IS A WIDE-SPREAD POPULAR IGNORANCE

  OF THE TRUE CHARACTER OF THE CRIME-- A BELIEF, EVEN AMONG MOTHERS

  THEMSELVES, THAT THE FOETUS IS NOT ALIVE TILL AFTER THE PERIOD OF

  QUICKENING. 

     "THE SECOND OF THE AGENTS ALLUDED TO IS THE FACT THAT THE

  PROFESSION THEMSELVES ARE FREQUENTLY SUPPOSED CARELESS OF FOETAL

  LIFE . . . . 

     "THE THIRD REASON OF THE FRIGHTFUL EXTENT OF THIS CRIME IS

  FOUND IN THE GRAVE DEFECTS OF OUR LAWS, BOTH COMMON AND STATUTE,

  AS REGARDS THE INDEPENDENT AND ACTUAL EXISTENCE OF THE CHILD

  BEFORE BIRTH, AS A LIVING BEING.  THESE ERRORS, WHICH ARE

  SUFFICIENT IN MOST INSTANCES TO PREVENT CONVICTION, ARE BASED,

  AND ONLY BASED, UPON MISTAKEN AND EXPLODED MEDICAL DOGMAS.  WITH

  STRANGE INCONSISTENCY, THE LAW FULLY ACKNOWLEDGES THE FOETUS IN

UTERO AND ITS INHERENT RIGHTS, FOR CIVIL PURPOSES; WHILE

PERSONALLY AND AS CRIMINALLY AFFECTED, IT FAILS TO RECOGNIZE IT,

  AND TO ITS LIFE AS YET DENIES ALL PROTECTION."  ID., AT 75-76. 

THE COMMITTEE THEN OFFERED, AND THE ASSOCIATION ADOPTED, RESOLUTIONS
PROTESTING "AGAINST SUCH UNWARRANTABLE DESTRUCTION OF HUMAN LIFE,"
CALLING UPON STATE LEGISLATURES TO REVISE THEIR ABORTION LAWS, AND
REQUESTING THE COOPERATION OF STATE MEDICAL SOCIETIES "IN PRESSING THE
SUBJECT."  ID., AT 28, 78. 

IN 1871 A LONG AND VIVID REPORT WAS SUBMITTED BY THE COMMITTEE ON
CRIMINAL ABORTION.  IT ENDED WITH THE OBSERVATION, "WE HAD TO DEAL WITH
HUMAN LIFE.  IN A MATTER OF LESS IMPORTANCE WE COULD ENTERTAIN NO
COMPROMISE.  AN HONEST JUDGE ON THE BENCH WOULD CALL THINGS BY THEIR
PROPER NAMES.  WE COULD DO NO LESS."  22 TRANS.OF THE AM.MED.ASSN.  258
(1871).  IT PROFFERED RESOLUTIONS, ADOPTED BY THE ASSOCIATION, ID., AT
38-39, RECOMMENDING, AMONG OTHER THINGS, THAT IT "BE UNLAWFUL AND
UNPROFESSIONAL FOR ANY PHYSICIAN TO INDUCE ABORTION OR PREMATURE LABOR,
WITHOUT THE CONCURRENT OPINION OF AT LEAST ONE RESPECTABLE CONSULTING
PHYSICIAN, AND THEN ALWAYS WITH A VIEW TO THE SAFETY OF THE CHILD-- IF
THAT BE POSSIBLE," AND CALLING "THE ATTENTION OF THE CLERGY OF ALL
DENOMINATIONS TO THE PERVERTED VIEWS OF MORALITY ENTERTAINED BY A LARGE
CLASS OF FEMALES-- AYE, AND MEN ALSO, ON THIS IMPORTANT QUESTION." 

EXCEPT FOR PERIODIC CONDEMNATION OF THE CRIMINAL ABORTIONIST, NO
FURTHER FORMAL AMA ACTION TOOK PLACE UNTIL 1967.  IN THAT YEAR, THE
COMMITTEE ON HUMAN REPRODUCTION URGED THE ADOPTION OF A STATED POLICY
OF OPPOSITION TO INDUCED ABORTION, EXCEPT WHEN THERE IS "DOCUMENTED
MEDICAL EVIDENCE" OF A THREAT TO THE HEALTH OR LIFE OF THE MOTHER, OR
THAT THE CHILD "MAY BE BORN WITH INCAPACITATING PHYSICAL DEFORMITY OR
MENTAL DEFICIENCY," OR THAT A PREGNANCY "RESULTING FROM LEGALLY
ESTABLISHED STATUTORY OR FORCIBLE RAPE OR INCEST MAY CONSTITUTE A
THREAT TO THE MENTAL OR PHYSICAL HEALTH OF THE PATIENT," TWO OTHER
PHYSICIANS "CHOSEN BECAUSE OF THEIR RECOGNIZED PROFESSIONAL COMPETENCE
HAVE EXAMINED THE PATIENT AND HAVE CONCURRED IN WRITING," AND THE
PROCEDURE "IS PERFORMED IN A HOSPITAL ACCREDITED BY THE JOINT
COMMISSION ON ACCREDITATION OF HOSPITALS."  THE PROVIDING OF MEDICAL
INFORMATION BY PHYSICIANS TO STATE LEGISLATURES IN THEIR CONSIDERATION
OF LEGISLATION REGARDING THERAPEUTIC ABORTION WAS "TO BE CONSIDERED
CONSISTENT WITH THE PRINCIPLES OF ETHICS OF THE AMERICAN MEDICAL
ASSOCIATION."  THIS RECOMMENDATION WAS ADOPTED BY THE HOUSE OF
DELEGATES.  PROCEEDINGS OF THE AMA HOUSE OF DELEGATES 40-51 (JUNE
1967). 

IN 1970, AFTER THE INTRODUCTION OF A VARIETY OF PROPOSED
RESOLUTIONS, AND OF A REPORT FROM ITS BOARD OF TRUSTEES, A REFERENCE
COMMITTEE NOTED "POLARIZATION OF THE MEDICAL PROFESSION ON THIS
CONTROVERSIAL ISSUE"; DIVISION AMONG THOSE WHO HAD TESTIFIED; A
DIFFERENCE OF OPINION AMONG AMA COUNCILS AND COMMITTEES; "THE
REMARKABLE SHIFT IN TESTIMONY" IN SIX MONTHS, FELT TO BE INFLUENCED "BY
THE RAPID CHANGES IN STATE LAWS AND BY THE JUDICIAL DECISIONS WHICH
TEND TO MAKE ABORTION MORE FREELY AVAILABLE;" AND A FEELING "THAT THIS
TREND WILL CONTINUE."  ON JUNE 25, 1970, THE HOUSE OF DELEGATES ADOPTED
PREAMBLES AND MOST OF THE RESOLUTIONS PROPOSED BY THE REFERENCE
COMMITTEE.  THE PREAMBLES EMPHASIZED "THE BEST INTERESTS OF THE
PATIENT," "SOUND CLINICAL JUDGMENT," AND "INFORMED PATIENT CONSENT," IN
CONTRAST TO "MERE ACQUIESCENCE TO THE PATIENT'S DEMAND."  THE
RESOLUTIONS ASSERTED THAT ABORTION IS A MEDICAL PROCEDURE THAT SHOULD
BE PERFORMED BY A LICENSED PHYSICIAN IN AN ACCREDITED HOSPITAL ONLY
AFTER CONSULTATION WITH TWO OTHER PHYSICIANS AND IN CONFORMITY WITH
STATE LAW, AND THAT NO PARTY TO THE PROCEDURE SHOULD BE REQUIRED TO
VIOLATE PERSONALLY HELD MORAL PRINCIPLES.  /38/  PROCEEDINGS OF THE AMA
HOUSE OF DELEGATES 220 (JUNE 1970).  THE AMA JUDICIAL COUNCIL RENDERED
A COMPLEMENTARY OPINION.  /39/ 

7.  THE POSITION OF THE AMERICAN PUBLIC HEALTH ASSOCIATION.  IN
OCTOBER 1970, THE EXECUTIVE BOARD OF THE APHA ADOPTED STANDARDS FOR
ABORTION SERVICES.  THESE WERE FIVE IN NUMBER. 

     "A.  RAPID AND SIMPLE ABORTION REFERRAL MUST BE READILY

  AVAILABLE THROUGH STATE AND LOCAL PUBLIC HEALTH DEPARTMENTS,

  MEDICAL SOCIETIES, OR OTHER NONPROFIT ORGANIZATIONS. 

      "B.  AN IMPORTANT FUNCTION OF COUNSELING SHOULD BE TO
SIMPLIFY

  AND EXPEDITE THE PROVISION OF ABORTION SERVICES; IT SHOULD NOT

  DELAY THE OBTAINING OF THESE SERVICES. 

     "C.  PSYCHIATRIC CONSULTATION SHOULD NOT BE MANDATORY.  AS IN

  THE CASE OF OTHER SPECIALIZED MEDICAL SERVICES, PSYCHIATRIC

  CONSULTATION SHOULD BE SOUGHT FOR DEFINITE INDICATIONS AND NOT ON

  A ROUTINE BASIS. 

     "D. A WIDE RANGE OF INDIVIDUALS FROM APPROPRIATELY TRAINED,

SYMPATHETIC VOLUNTEERS TO HIGHLY SKILLED PHYSICIANS MAY QUALIFY

  AS ABORTION COUNSELORS. 

     "E.  CONTRACEPTION AND/OR STERILIZATION SHOULD BE DISCUSSED

  WITH EACH ABORTION PATIENT."  RECOMMENDED STANDARDS FOR ABORTION

  SERVICES, 61 AM.J.PUB.HEALTH 396 (1971). 

AMONG FACTORS PERTINENT TO LIFE AND HEALTH RISKS ASSOCIATED WITH
ABORTION WERE THREE THAT "ARE RECOGNIZED AS IMPORTANT":  10"A.  THE
SKILL OF THE PHYSICIAN, 

     "B.  THE ENVIRONMENT IN WHICH THE ABORTION IS PERFORMED, AND
ABOVE ALL 

     "C.  THE DURATION OF PREGNANCY, AS DETERMINED BY UTERINE SIZE

  AND CONFIRMED BY MENSTRUAL HISTORY."  ID., AT 397. 

IT WAS SAID THAT "A WELL-EQUIPPED HOSPITAL" OFFERS MORE PROTECTION
"TO COPE WITH UNFORESEEN DIFFICULTIES THAN AN OFFICE OR CLINIC WITHOUT
SUCH RESOURCES . . . . THE FACTOR OF GESTATIONAL AGE IS OF OVERRIDING
IMPORTANCE."  THUS, IT WAS RECOMMENDED THAT ABORTIONS IN THE SECOND
TRIMESTER AND EARLY ABORTIONS IN THE PRESENCE OF EXISTING MEDICAL
COMPLICATIONS BE PERFORMED IN HOSPITALS AS INPATIENT PROCEDURES.  FOR
PREGNANCIES IN THE FIRST TRIMESTER, ABORTION IN THE HOSPITAL WITH OR
WITHOUT OVERNIGHT STAY "IS PROBABLY THE SAFEST PRACTICE."  AN ABORTION
IN AN EXTRAMURAL FACILITY, HOWEVER, IS AN ACCEPTABLE ALTERNATIVE
"PROVIDED ARRANGEMENTS EXIST IN ADVANCE TO ADMIT PATIENTS PROMPTLY IF
UNFORESEEN COMPLICATIONS DEVELOP."  STANDARDS FOR AN ABORTION FACILITY
WERE LISTED.  IT WAS SAID THAT AT PRESENT ABORTIONS SHOULD BE PERFORMED
BY PHYSICIANS OR OSTEOPATHS WHO ARE LICENSED TO PRACTICE AND WHO HAVE
"ADEQUATE TRAINING."  ID., AT 398. 

8.  THE POSITION OF THE AMERICAN BAR ASSOCIATION.  AT ITS MEETING IN
FEBRUARY 1972 THE ABA HOUSE OF DELEGATES APPROVED, WITH 17 OPPOSING
VOTES, THE UNIFORM ABORTION ACT THAT HAD BEEN DRAFTED AND APPROVED THE
PRECEDING AUGUST BY THE CONFERENCE OF COMMISSIONERS ON UNIFORM STATE
LAWS.  58 A.B.A.J. 380 (1972).  WE SET FORTH THE ACT IN FULL IN THE
MARGIN.  /40/  THE CONFERENCE HAS APPENDED AN ENLIGHTENING PREFATORY
NOTE.  /41/

        VII 

THREE REASONS HAVE BEEN ADVANCED TO EXPLAIN HISTORICALLY THE
ENACTMENT OF CRIMINAL ABORTION LAWS IN THE 19TH CENTURY AND TO JUSTIFY
THEIR CONTINUED EXISTENCE. 

IT HAS BEEN ARGUED OCCASIONALLY THAT THESE LAWS WERE THE PRODUCT OF
A VICTORIAN SOCIAL CONCERN TO DISCOURAGE ILLICIT SEXUAL CONDUCT. 
TEXAS, HOWEVER, DOES NOT ADVANCE THIS JUSTIFICATION IN THE PRESENT
CASE, AND IT APPEARS THAT NO COURT OR COMMENTATOR HAS TAKEN THE
ARGUMENT SERIOUSLY.  /42/  THE APPELLANTS AND AMICI CONTEND, MOREOVER,
THAT THIS IS NOT A PROPER STATE PURPOSE AT ALL AND SUGGEST THAT, IF IT
WERE, THE TEXAS STATUTES ARE OVERBROAD IN PROTECTING IT SINCE THE LAW
FAILS TO DISTINGUISH BETWEEN MARRIED AND UNWED MOTHERS. 

A SECOND REASON IS CONCERNED WITH ABORTION AS A MEDICAL PROCEDURE. 
WHEN MOST CRIMINAL ABORTION LAWS WERE FIRST ENACTED, THE PROCEDURE WAS
A HAZARDOUS ONE FOR THE WOMAN.  /43/  THIS WAS PARTICULARLY TRUE PRIOR
TO THE DEVELOPMENT OF ANTISEPSIS.  ANTISEPTIC TECHNIQUES, OF COURSE,
WERE BASED ON DISCOVERIES BY LISTER, PASTEUR, AND OTHERS FIRST
ANNOUNCED IN 1867, BUT WERE NOT GENERALLY ACCEPTED AND EMPLOYED UNTIL
ABOUT THE TURN OF THE CENTURY.  ABORTION MORTALITY WAS HIGH.  EVEN
AFTER 1900, AND PERHAPS UNTIL AS LATE AS THE DEVELOPMENT OF ANTIBIOTICS
IN THE 1940'S, STANDARD MODERN TECHNIQUES SUCH AS DILATION AND
CURETTAGE WERE NOT NEARLY SO SAFE AS THEY ARE TODAY.  THUS, IT HAS BEEN
ARGUED THAT A STATE'S REAL CONCERN IN ENACTING A CRIMINAL ABORTION LAW
WAS TO PROTECT THE PREGNANT WOMAN, THAT IS, TO RESTRAIN HER FROM
SUBMITTING TO A PROCEDURE THAT PLACED HER LIFE IN SERIOUS JEOPARDY. 

MODERN MEDICAL TECHNIQUES HAVE ALTERED THIS SITUATION.  APPELLANTS
AND VARIOUS AMICI REFER TO MEDICAL DATA INDICATING THAT ABORTION IN
EARLY PREGNANCY, THAT IS, PRIOR TO THE END OF THE FIRST TRIMESTER,
ALTHOUGH NOT WITHOUT ITS RISK, IS NOW RELATIVELY SAFE.  MORTALITY RATES
FOR WOMEN UNDERGOING EARLY ABORTIONS, WHERE THE PROCEDURE IS LEGAL,
APPEAR TO BE AS LOW AS OR LOWER THAN THE RATES FOR NORMAL CHILDBIRTH. 
/44/  CONSEQUENTLY, ANY INTEREST OF THE STATE IN PROTECTING THE WOMAN
FROM AN INHERENTLY HAZARDOUS PROCEDURE EXCEPT WHEN IT WOULD BE EQUALLY
DANGEROUS FOR HER TO FORGO IT, HAS LARGELY DISAPPEARED.  OF COURSE,
IMPORTANT STATE INTERESTS IN THE AREAS OF HEALTH AND MEDICAL STANDARDS
DO REMAIN.  THE STATE HAS A LEGITIMATE INTEREST IN SEEING TO IT THAT
ABORTION, LIKE ANY OTHER MEDICAL PROCEDURE, IS PERFORMED UNDER
CIRCUMSTANCES THAT INSURE MAXIMUM SAFETY FOR THE PATIENT.  THIS
INTEREST OBVIOUSLY EXTENDS AT LEAST TO THE PERFORMING PHYSICIAN AND HIS
STAFF, TO THE FACILITIES INVOLVED, TO THE AVAILABILITY OF AFTER-CARE,
AND TO ADEQUATE PROVISION FOR ANY COMPLICATION OR EMERGENCY THAT MIGHT
ARISE.  THE PREVALENCE OF HIGH MORTALITY RATES AT ILLEGAL "ABORTION
MILLS" STRENGTHENS, RATHER THAN WEAKEN, THE STATE'S INTEREST IN
REGULATING THE CONDITIONS UNDER WHICH ABORTIONS ARE PERFORMED. 
MOREOVER, THE RISK TO THE WOMAN INCREASES AS HER PREGNANCY CONTINUES. 
THUS, THE STATE RETAINS A DEFINITE INTEREST IN PROTECTING THE WOMAN'S
OWN HEALTH AND SAFETY WHEN AN ABORTION IS PROPOSED AT A LATE STAGE OF
PREGNANCY. 

THE THIRD REASON IS THE STATE'S INTEREST-- SOME PHRASE IT IN TERMS
OF DUTY-- IN PROTECTING PRENATAL LIFE.  SOME OF THE ARGUMENT FOR THIS
JUSTIFICATION RESTS ON THE THEORY THAT A NEW HUMAN LIFE IS PRESENT FROM
THE MOMENT OF CONCEPTION.  /45/  THE STATE'S INTEREST AND GENERAL
OBLIGATION TO PROTECT LIFE THEN EXTENDS, IT IS ARGUED, TO PRENATAL
LIFE.  ONLY WHEN THE LIFE OF THE PREGNANT MOTHER HERSELF IS AT STAKE,
BALANCED AGAINST THE LIFE SHE CARRIES WITHIN HER, SHOULD THE INTEREST
OF THE EMBRYO OR FETUS NOT PREVAIL.  LOGICALLY, OF COURSE, A LEGITIMATE
STATE INTEREST IN THIS AREA NEED NOT STAND OR FALL ON ACCEPTANCE OF THE
BELIEF THAT LIFE BEGINS AT CONCEPTION OR AT SOME OTHER POINT PRIOR TO
LIVE BIRTH.  IN ASSESSING THE STATE'S INTEREST, RECOGNITION MAY BE
GIVEN TO THE LESS RIGID CLAIM THAT AS LONG AS AT LEAST POTENTIAL LIFE
IS INVOLVED, THE STATE MAY ASSERT INTERESTS BEYOND THE PROTECTION OF
THE PREGNANT WOMAN ALONE. 

PARTIES CHALLENGING STATE ABORTION LAWS HAVE SHARPLY DISPUTED IN
SOME COURTS THE CONTENTION THAT A PURPOSE OF THESE LAWS, WHEN ENACTED,
WAS TO PROTECT PRENATAL LIFE.  /46/  POINTING TO THE ABSENCE OF
LEGISLATIVE HISTORY TO SUPPORT THE CONTENTION, THEY CLAIM THAT MOST
STATE LAWS WERE DESIGNED SOLELY TO PROTECT THE WOMAN.  BECAUSE MEDICAL
ADVANCES HAVE LESSENED THIS CONCERN, AT LEAST WITH RESPECT TO ABORTION
IN EARLY PREGNANCY, THEY ARGUE THAT WITH RESPECT TO SUCH ABORTIONS THE
LAWS CAN NO LONGER BE JUSTIFIED BY ANY STATE INTEREST.  THERE IS SOME
SCHOLARLY SUPPORT FOR THIS VIEW OF ORIGINAL PURPOSE.  /47/  THE FEW
STATE COURTS CALLED UPON TO INTERPRET THEIR LAWS IN THE LATE 19TH AND
EARLY 20TH CENTURIES DID FOCUS ON THE STATE'S INTEREST IN PROTECTING
THE WOMAN'S HEALTH RATHER THAN IN PRESERVING THE EMBRYO AND FETUS. 
/48/  PROPONENTS OF THIS VIEW POINT OUT THAT IN MANY STATES, INCLUDING
TEXAS, /49/  BY STATUTE OR JUDICIAL INTERPRETATION, THE PREGNANT WOMAN
HERSELF COULD NOT BE PROSECUTED FOR SELF-ABORTION OR FOR COOPERATING IN
AN ABORTION PERFORMED UPON HER BY ANOTHER.  /50/  THEY CLAIM THAT
ADOPTION OF THE "QUICKENING THROUGH RECEIVED COMMON LAW AND STATE
STATUTES TACITLY RECOGNIZES THE GREATER HEALTH HAZARDS INHERENT IN LATE
ABORTION AND IMPLIEDLY REPUDIATES THE THEORY THAT LIFE BEGINS AT
CONCEPTION. 

IT IS WITH THESE INTERESTS, AND THE WEIGHT TO BE ATTACHED TO THEM,
THAT THIS CASE IS CONCERNED. 

        VIII 

THE CONSTITUTION DOES NOT EXPLICITLY MENTION ANY RIGHT OF PRIVACY. 
IN A LINE OF DECISIONS, HOWEVER, GOING BACK PERHAPS AS FAR AS UNION
PACIFIC R. CO. V. BOTSFORD, 141 U.S. 250, 251 (1891), THE COURT HAS
RECOGNIZED THAT A RIGHT OF PERSONAL PRIVACY, OR A GUARANTEE OF CERTAIN
AREAS OR ZONES OF PRIVACY, DOES EXIST UNDER THE CONSTITUTION.  IN
VARYING CONTEXTS, THE COURT OR INDIVIDUAL JUSTICES HAVE, INDEED, FOUND
AT LEAST THE ROOTS OF THAT RIGHT IN THE FIRST AMENDMENT, STANLEY V.
GEORGIA, 394 U.S. 557, 564 (1969); IN THE FOURTH AND FIFTH AMENDMENTS,
TERRY V. OHIO, 392 U.S. 1, 8-9 (1968), KATZ V. UNITED STATES, 389 U.S.
347, 350 (1967), BOYD V. UNITED STATES, 116 U.S. 616 (1886), SEE
OLMSTEAD V. UNITED STATES, 277 U.S. 438, 478 (1928) (BRANDEIS, J.,
DISSENTING); IN THE PENUMBRAS OF THE BILL OF RIGHTS, GRISWOLD V.
CONNECTICUT, 381 U.S.,AT 484-485; IN THE NINTH AMENDMENT, ID., AT 486
(GOLDBERG, J., CONCURRING); OR IN THE CONCEPT OF LIBERTY GUARANTEED BY
THE FIRST SECTION OF THE FOURTEENTH AMENDMENT, SEE MEYER V. NEBRASKA,
262 U.S. 390, 399 (1923).  THESE DECISIONS MAKE IT CLEAR THAT ONLY
PERSONAL RIGHTS THAT CAN BE DEEMED "FUNDAMENTAL" OR "IMPLICIT IN THE
CONCEPT OF ORDERED LIBERTY," PALKO V. CONNECTICUT, 302 U.S. 319, 325
(1937), ARE INCLUDED IN THIS GUARANTEE OF PERSONAL PRIVACY.  THEY ALSO
MAKE IT CLEAR THAT THE RIGHT HAS SOME EXTENSION TO ACTIVITIES RELATING
TO MARRIAGE, LOVING V. VIRGINIA, 388 U.S. 1, 12 (1967); PROCREATION,
SKINNER V. OKLAHOMA, 316 U.S. 535, 541-542 (1942); CONTRACEPTION,
EISENSTADT V. BAIRD, 405 U.S.,AT 453-454; ID., AT 460, 463-465 (WHITE
J., CONCURRING IN RESULT); FAMILY RELATIONSHIPS, PRINCE V.
MASSACHUSETTS, 321 U.S. 158, 166 (1944); AND CHILD REARING AND
EDUCATION, PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, 535 (1925),
MEYER V. NEBRASKA, SUPRA. 

THIS RIGHT OF PRIVACY, WHETHER IT BE FOUNDED IN THE FOURTEENTH
AMENDMENT'S CONCEPT OF PERSONAL LIBERTY AND RESTRICTIONS UPON STATE
ACTION, AS WE FEEL IT IS, OR, AS THE DISTRICT COURT DETERMINED, IN THE
NINTH AMENDMENT'S RESERVATION OF RIGHTS TO THE PEOPLE, IS BROAD ENOUGH
TO ENCOMPASS A WOMAN'S DECISION WHETHER OR NOT TO TERMINATE HER
PREGNANCY.  THE DETRIMENT THAT THE STATE WOULD IMPOSE UPON THE PREGNANT
WOMAN BY DENYING THIS CHOICE ALTOGETHER IS APPARENT.  SPECIFIC AND
DIRECT HARM MEDICALLY DIAGNOSABLE EVEN IN EARLY PREGNANCY MAY BE
INVOLVED.  MATERNITY, OR ADDITIONAL OFF-SPRING, MAY FORCE UPON THE
WOMAN A DISTRESSFUL LIFE AND FUTURE.  PSYCHOLOGICAL HARM MAY BE
IMMINENT.  MENTAL AND PHYSICAL HEALTH MAY BE TAXED BY CHILD CARE. 
THERE IS ALSO THE DISTRESS, FOR ALL CONCERNED, ASSOCIATED WITH THE
UNWANTED CHILD, AND THERE IS THE PROBLEM OF BRINGING A CHILD INTO A
FAMILY ALREADY UNABLE, PSYCHOLOGICALLY AND OTHERWISE, TO CARE FOR IT.
IN OTHER CASES, AS IN THIS ONE, THE ADDITIONAL DIFFICULTIES AND
CONTINUING STIGMA FACTORS THE WOMAN AND HER RESPONSIBLE PHYSICIAN
NECESSARILY WILL CONSIDER IN CONSULTATION. 

ON THE BASIS OF ELEMENTS SUCH AS THESE, APPELLANT AND SOME AMICI
ARGUE THAT THE WOMAN'S RIGHT IS ABSOLUTE AND THAT SHE IS ENTITLED TO
TERMINATE HER PREGNANCY AT WHATEVER TIME, IN WHATEVER WAY, AND FOR
WHATEVER REASON SHE ALONE CHOOSES.  WITH THIS WE DO NOT AGREE. 
APPELLANT'S ARGUMENTS THAT TEXAS EITHER HAS NO VALID INTEREST STRONG
ENOUGH TO SUPPORT ANY LIMITATION UPON THE WOMAN'S SOLE DETERMINATION,
ARE UNPERSUASIVE.  THE COURT'S DECISIONS RECOGNIZING A RIGHT OF PRIVACY
ALSO ACKNOWLEDGE THAT SOME STATE REGULATION IN AREAS PROTECTED BY THAT
RIGHT IS APPROPRIATE.  AS NOTED ABOVE, A STATE MAY PROPERLY ASSERT
IMPORTANT INTERESTS IN SAFEGUARDING HEALTH, IN MAINTAINING MEDICAL
STANDARDS, AND IN PROTECTING POTENTIAL LIFE.  AT SOME POINT IN
PREGNANCY, TO SUSTAIN REGULATION OF THE FACTORS THAT GOVERN THE
ABORTION DECISION.  THE PRIVACY RIGHT INVOLVED, THEREFORE, CANNOT BE
SAID TO BE ABSOLUTE.  IN FACT, IT IS NOT CLEAR TO US THAT THE CLAIM
ASSERTED BY SOME AMICI THAT ONE HAS AN UNLIMITED RIGHT TO DO WITH ONE'S
BODY AS ONE PLEASES BEARS A CLOSE RELATIONSHIP TO THE RIGHT OF PRIVACY
PREVIOUSLY ARTICULATED IN THE COURT'S DECISIONS.  THE COURT HAS REFUSED
TO RECOGNIZE AN UNLIMITED RIGHT OF THIS KIND IN THE PAST.  JACOBSON V.
MASSACHUSETTS, 197 U.S. 11 (1905) (VACCINATION); BUCK V. BELL, 274 U.S.
200 (1927) (STERILIZATION). 

WE, THEREFORE, CONCLUDE THAT THE RIGHT OF PERSONAL PRIVACY INCLUDES
THE ABORTION DECISION, BUT THAT THIS RIGHT IS NOT UNQUALIFIED AND MUST
BE CONSIDERED AGAINST IMPORTANT STATE INTERESTS IN REGULATION. 

WE NOTE THAT THOSE FEDERAL AND STATE COURTS THAT HAVE RECENTLY
CONSIDERED ABORTION LAW CHALLENGES HAVE REACHED THE SAME CONCLUSION.  A
MAJORITY, IN ADDITION TO THE DISTRICT COURT IN THE PRESENT CASE, HAVE
HELD STATE LAWS UNCONSTITUTIONAL, AT LEAST IN PART, BECAUSE OF
VAGUENESS OR BECAUSE OF OVERBREADTH AND ABRIDGMENT OF RIGHTS.  ABELE V.
MARKLE, 342 F.SUPP.  800 (CONN. 1972), APPEAL DOCKETED, NO. 72-56;
ABELE V. MARKLE, 351 F.SUPP.  224 (CONN. 1972), APPEAL DOCKETED, NO. 72
730; DOE V. BOLTON, 319 F.SUPP.  1048 (ND GA. 1970), APPEAL DECIDED
TODAY, POST, P. 179; DOE V. SCOTT, 321 F.SUPP.  1385 (ND ILL. 1971),
APPEAL DOCKETED, NO. 70-105; POE V. MENGHINI, 339 F.SUPP.  986 (KAN.
1972); YWCA V. KUGLER, 342 F.SUPP.  1048 (NJ 1972); BABBITZ V. MCCANN,
310 F.SUPP.  293 (ED WIS. 1970), APPEAL DISMISSED, 400 U.S. 1 (1970);
PEOPLE V. BELOUS, 71 CAL.2D 954, 458 P.2D 194 (1969), CERT. DENIED, 397
U.S. 915 (1970); STATE V. BARQUET, 262 SO.2D 431 (FLA. 1972). 
OTHERS HAVE SUSTAINED STATE STATUTES.  CROSSEN V. ATTORNEY GENERAL, 344
F.SUPP.  587 (ED KY. 1972), APPEAL DOCKETED, NO. 72-256; ROSEN V.
LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 318 F.SUPP.  1217 (ED LA.
1970), APPEAL DOCKETED, NO. 70-42; CORKEY V. EDWARDS, 322 F.SUPP.  1248
(WDNC 1971), APPEAL DOCKETED, NO. 71-92; STEINBERG V. BROWN, 321
F.SUPP.  741 (ND OHIO 1970); DOE V. RAMPTON (UTAH 1971), APPEAL
DOCKETED, NO. 71-5666; CHEANEY V. STATE,-- IND.-- , 285 N.E.2D 265
(1972); SPEARS V. STATE, 257 SO.2D 876 (MISS.  1972); STATE V. MUNSON,
86 S.D. 663, 201 N.W.2D 123 (1972), APPEAL DOCKETED, NO. 72-631. 

ALTHOUGH THE RESULTS ARE DIVIDED, MOST OF THESE COURTS HAVE AGREED
THAT THE RIGHT OF PRIVACY, HOWEVER BASED, IS BROAD ENOUGH TO COVER THE
ABORTION DECISION; THAT THE RIGHT, NONETHELESS, IS NOT ABSOLUTE AND IS
SUBJECT TO SOME LIMITATIONS; AND THAT AT SOME POINT THE STATE INTERESTS
AS TO PROTECTION OF HEALTH, MEDICAL STANDARDS, AND PRENATAL LIFE,
BECOME DOMINANT.  WE AGREE WITH THIS APPROACH. 

WHERE CERTAIN "FUNDAMENTAL RIGHTS" ARE INVOLVED, THE COURT HAS HELD
THAT REGULATION LIMITING THESE RIGHTS MAY BE JUSTIFIED ONLY BY A
"COMPELLING STATE INTEREST," KRAMER V. UNION FREE SCHOOL DISTRICT, 395
U.S. 621, 627 (1969); SHAPIRO V. THOMPSON, 394 U.S. 618, 634 (1969),
SHERBERT V. VERNER, 374 U.S. 398, 406 (1963), AND THAT LEGISLATIVE
ENACTMENTS MUST BE NARROWLY DRAWN TO EXPRESS ONLY THE LEGITIMATE STATE
INTERESTS AT STAKE.  GRISWOLD V. CONNECTICUT, 381 U.S.,AT 485; APTHEKER
V. SECRETARY OF STATE, 378 U.S. 500, 508 (1964); CANTWELL V.
CONNECTICUT, 310 U.S. 296, 307-308 (1940); SEE EISENSTADT V. BAIRD, 405
U.S.,AT 460, 463-464 (WHITE, J., CONCURRING IN RESULT). 

IN THE RECENT ABORTION CASES, CITED ABOVE, COURTS HAVE RECOGNIZED
THESE PRINCIPLES.  THOSE STRIKING DOWN STATE LAWS HAVE GENERALLY
SCRUTINIZED THE STATE'S INTERESTS IN PROTECTING HEALTH AND POTENTIAL
LIFE, AND HAVE CONCLUDED THAT NEITHER INTEREST JUSTIFIED BROAD
LIMITATIONS ON THE REASONS FOR WHICH A PHYSICIAN AND HIS PREGNANT
PATIENT MIGHT DECIDE THAT SHE SHOULD HAVE AN ABORTION IN THE EARLY
STAGES OF PREGNANCY.  COURTS SUSTAINING STATE LAWS HAVE HELD THAT THE
STATE'S DETERMINATIONS TO PROTECT HEALTH OR PRENATAL LIFE ARE DOMINANT
AND CONSTITUTIONALLY JUSTIFIABLE. 

        IX 

THE DISTRICT COURT HELD THAT THE APPELLEE FAILED TO MEET HIS BURDEN
OF DEMONSTRATING THAT THE TEXAS STATUTE'S INFRINGEMENT UPON ROE'S
RIGHTS WAS NECESSARY TO SUPPORT A COMPELLING STATE INTEREST, AND THAT,
ALTHOUGH THE APPELLEE PRESENTED "SEVERAL COMPELLING JUSTIFICATIONS FOR
STATE PRESENCE IN THE AREA OF ABORTIONS," THE STATUTES OUTSTRIPPED
THESE JUSTIFICATIONS AND SWEPT "FAR BEYOND ANY AREAS OF COMPELLING
STATE INTEREST."  314 F.SUPP.,AT 1222-1223.  APPELLANT AND APPELLEE
BOTH CONTEST THAT HOLDING.  APPELLANT, AS HAS BEEN INDICATED, CLAIMS AN
ABSOLUTE RIGHT THAT BARS ANY STATE IMPOSITION OF CRIMINAL PENALTIES IN
THE AREA.  APPELLEE ARGUES THAT THE STATE'S DETERMINATION TO RECOGNIZE
AND PROTECT PRENATAL LIFE FROM AND AFTER CONCEPTION CONSTITUTES A
COMPELLING STATE INTEREST.  AS NOTED ABOVE, WE DO NOT AGREE FULLY WITH
EITHER FORMULATION. 

A. THE APPELLEE AND CERTAIN AMICI ARGUE THAT THE FETUS IS A "PERSON"
WITHIN THE LANGUAGE AND MEANING OF THE FOURTEENTH AMENDMENT.  IN
SUPPORT OF THIS, THEY OUTLINE AT LENGTH AND IN DETAIL THE WELL-KNOWN
FACTS OF FETAL DEVELOPMENT.  IF THIS SUGGESTION OF PERSONHOOD IS
ESTABLISHED, THE APPELLANT'S CASE, OF COURSE, COLLAPSES, FOR THE FETUS'
RIGHT TO LIFE WOULD THEN BE GUARANTEED SPECIFICALLY BY THE AMENDMENT. 
THE APPELLANT CONCEDED AS MUCH ON REARGUMENT.  /51/  ON THE OTHER HAND,
THE APPELLEE CONCEDED ON REARGUMENT /52/  THAT NO CASE COULD BE CITED
THAT HOLDS THAT A FETUS IS A PERSON WITHIN THE MEANING OF THE
FOURTEENTH AMENDMENT. 

THE CONSTITUTION DOES NOT DEFINE "PERSON" IN SO MANY WORDS.  SECTION
1 OF THE FOURTEENTH AMENDMENT CONTAINS THREE REFERENCES TO "PERSON." 
THE FIRST, IN DEFINING "CITIZENS," SPEAKS OF "PERSONS BORN OR
NATURALIZED IN THE UNITED STATES."  THE WORD ALSO APPEARS BOTH IN THE
DUE PROCESS CLAUSE AND IN THE EQUAL PROTECTION CLAUSE.  "PERSON" IS
USED IN OTHER PLACES IN THE CONSTITUTION:  IN THE LISTING OF
QUALIFICATIONS FOR REPRESENTATIVES AND SENATORS, ART. I, SEC. 2, CL. 2,
AND SEC. 3, CL. 3; IN THE APPORTIONMENT CLAUSE, ART. I, SEC. 2, CL. 3;
/53/  IN THE MIGRATION AND IMPORTATION PROVISION, ART. I, SEC. 9, CL.
1; IN THE EMOLUMENT CLAUSE, ART. I, SEC. 9, CL. 8; IN THE ELECTORS
PROVISIONS, ART. II, SEC. 1 CL. 2, AND THE SUPERSEDED CL. 3; IN THE
PROVISION OUTLINING QUALIFICATIONS FOR THE OFFICE OF PRESIDENT, ART.
II, SEC. 1, CL. 5; IN THE EXTRADITION PROVISION, ART. IV, SEC. 2, CL.
2, AND THE SUPERSEDED FUGITIVE SLAVE CLAUSE 3; AND IN THE FIFTH,
TWELFTH, AND TWENTY-SECOND AMENDMENTS, AS WELL AS IN SECS. 2 AND 3 OF
THE FOURTEENTH AMENDMENT.  BUT IN NEARLY ALL THESE INSTANCES, THE USE
OF THE WORD IS SUCH THAT IT HAS APPLICATION ONLY POSTNATALLY.  NONE
INDICATES, WITH ANY ASSURANCE, THAT IT HAS ANY POSSIBLE PRE-NATAL
APPLICATION.  /54/ 

ALL THIS, TOGETHER WITH OUR OBSERVATION, SUPRA, THAT THROUGHOUT THE
MAJOR PORTION OF THE 19TH CENTURY PREVAILING LEGAL ABORTION PRACTICES
WERE FAR FREER THAN THEY ARE TODAY, PERSUADES US THAT THE WORD
"PERSON," AS USED IN THE FOURTEENTH AMENDMENT, DOES NOT INCLUDE THE
UNBORN.  /55/  THIS IS IN ACCORD WITH THE RESULTS REACHED IN THOSE FEW
CASES WHERE THE ISSUE HAS BEEN SQUARELY PRESENTED.  MCGARVEY V. MAGEE
WOMENS HOSPITAL, 340 F.SUPP.  751 (WD PA. 1972); BYRN V. NEW YORK CITY
HEALTH & HOSPITALS CORP., 31 N.Y.2D 194, 286 N.E.2D 887 (1972), APPEAL
DOCKETED, NO. 72-434; ABELE V. MARKLE, 351 F.SUPP.  224 (CONN. 1972),
APPEAL DOCKETED, NO. 72-730.  CF. CHEANEY V. STATE,-- IND., AT-- , 285
N.E.2D AT 270; MONTANA V. ROGERS, 278 F.2D 68, 72 (CA7 1960), AFF'D SUB
NOM.  MONTANA V. KENNEDY, 366 U.S. 308 (1961); KEELER V. SUPERIOR
COURT, 2 CAL.3D 619, 470 P.2D 617 (1070); STATE V. DICKINSON, 28 OHIO
ST.2D 65, 275 N.E.2D 599 (1971).  INDEED, OUR DECISION IN UNITED STATES
V. VUITCH, 402 U.S. 62 (1971), INFERENTIALLY IS TO THE SAME EFFECT, FOR
WE THERE WOULD NOT HAVE INDULGED IN STATUTORY INTERPRETATION FAVORABLE
TO ABORTION IN SPECIFIED CIRCUMSTANCES IF THE NECESSARY CONSEQUENCE WAS
THE TERMINATION OF LIFE ENTITLED TO FOURTEENTH AMENDMENT PROTECTION. 

THIS CONCLUSION, HOWEVER, DOES NOT OF ITSELF FULLY ANSWER THE
CONTENTIONS RAISED BY TEXAS, AND WE PASS ON TO OTHER CONSIDERATIONS. 

B. THE PREGNANT WOMAN CANNOT BE ISOLATED IN HER PRIVACY.  SHE
CARRIES AN EMBRYO AND, LATER, A FETUS, IF ONE ACCEPTS THE MEDICAL
DEFINITIONS OF THE DEVELOPING YOUNG IN THE HUMAN UTERUS.  SEE DORLAND'S
ILLUSTRATED MEDICAL DICTIONARY 478-479, 547 (24TH ED. 1965).  THE
SITUATION THEREFORE IS INHERENTLY DIFFERENT FROM MARITAL INTIMACY, OR
BEDROOM POSSESSION OF OBSCENE MATERIAL, OR MARRIAGE, OR PROCREATION, OR
EDUCATION, WITH WHICH EISENSTADT AND GRISWOLD, STANLEY, LOVING,
SKINNER, AND PIERCE AND MEYER WERE RESPECTIVELY CONCERNED.  AS WE HAVE
INTIMATED ABOVE, IT IS REASONABLE AND APPROPRIATE FOR A STATE TO DECIDE
THAT AT SOME POINT IN TIME ANOTHER INTEREST, THAT OF HEALTH OF THE
MOTHER OR THAT OF POTENTIAL HUMAN LIFE, BECOMES SIGNIFICANTLY
INVOLVED.  THE WOMAN'S PRIVACY IS NO LONGER SOLE AND ANY RIGHT OF
PRIVACY SHE POSSESSES MUST BE MEASURED ACCORDINGLY. 

TEXAS URGES THAT, APART FROM THE FOURTEENTH AMENDMENT, LIFE BEGINS
AT CONCEPTION AND IS PRESENT THROUGHOUT PREGNANCY, AND THAT, THEREFORE,
THE STATE HAS A COMPELLING INTEREST IN PROTECTING THAT LIFE FROM AND
AFTER CONCEPTION.  WE NEED NOT RESOLVE THE DIFFICULT QUESTION OF WHEN
LIFE BEGINS.  WHEN THOSE TRAINED IN THE RESPECTIVE DISCIPLINES OF
MEDICINE, PHILOSOPHY, AND THEOLOGY ARE UNABLE TO ARRIVE AT ANY
CONSENSUS, THE JUDICIARY, AT THIS POINT IN THE DEVELOPMENT OF MAN'S
KNOWLEDGE, IS NOT IN A POSITION TO SPECULATE AS TO THE ANSWER. 

IT SHOULD BE SUFFICIENT TO NOTE BRIEFLY THE WIDE DIVERGENCE OF
THINKING ON THIS MOST SENSITIVE AND DIFFICULT QUESTION.  THERE HAS
ALWAYS BEEN STRONG SUPPORT FOR THE VIEW THAT LIFE DOES NOT BEGIN UNTIL
LIVE BIRTH.  THIS WAS THE BELIEF OF THE STOICS.  /56/  IT APPEARS TO BE
THE PREDOMINANT, THOUGH NOT THE UNANIMOUS, ATTITUDE OF THE JEWISH
FAITH.  /57/  IT MAY BE TAKEN TO REPRESENT ALSO THE POSITION OF A LARGE
SEGMENT OF THE PROTESTANT COMMUNITY, INSOFAR AS THAT CAN BE
ASCERTAINED; ORGANIZED GROUPS THAT HAVE TAKEN A FORMAL POSITION ON THE
ABORTION ISSUE HAVE GENERALLY REGARDED ABORTION AS A MATTER FOR THE
CONSCIENCE OF THE INDIVIDUAL AND HER FAMILY.  /58/  AS WE HAVE NOTED,
THE COMMON LAW FOUND GREATER SIGNIFICANCE IN QUICKENING.  PHYSICIANS
AND THEIR SCIENTIFIC COLLEAGUES HAVE REGARDED THAT EVENT WITH LESS
INTEREST AND HAVE TENDED TO FOCUS EITHER UPON CONCEPTION, UPON LIVE
BIRTH, OR UPON THE INTERIM POINT AT WHICH THE FETUS BECOMES "VIABLE,"
THAT IS, POTENTIALLY ABLE TO LIVE OUTSIDE THE MOTHER'S WOMB, ALBEIT
WITH ARTIFICIAL AID.  /59/  VIABILITY IS USUALLY PLACED AT ABOUT SEVEN
MONTHS (28 WEEKS) BUT MAY OCCUR EARLIER, EVEN AT 24 WEEKS.  /60/  THE
ARISTOTELIAN THEORY OF "MEDIATE ANIMATION," THAT HELD SWAY THROUGHOUT
THE MIDDLE AGES AND THE RENAISSANCE IN EUROPE, CONTINUED TO BE OFFICIAL
ROMAN CATHOLIC DOGMA UNTIL THE 19TH CENTURY, DESPITE OPPOSITION TO THIS
"ENSOULMENT" THEORY FROM THOSE IN THE CHURCH WHO WOULD RECOGNIZE THE
EXISTENCE OF LIFE FROM THE MOMENT OF CONCEPTION.  /61/  THE LATTER IS
NOW, OF COURSE, THE OFFICIAL BELIEF OF THE CATHOLIC CHURCH.  AS ONE
BRIEF AMICUS DISCLOSES, THIS IS A VIEW STRONGLY HELD BY MANY NON
CATHOLICS AS WELL, AND BY MANY PHYSICIANS.  SUBSTANTIAL PROBLEMS FOR
PRECISE DEFINITION OF THIS VIEW ARE POSED, HOWEVER, BY NEW
EMBRYOLOGICAL DATA THAT PURPORT TO INDICATE THAT CONCEPTION IS A
"PROCESS" OVER TIME, RATHER THAN AN EVENT, AND BY NEW MEDICAL
TECHNIQUES IMPLANTATION OF EMBRYOS, ARTIFICIAL INSEMINATION, AND EVEN
ARTIFICIAL WOMBS.  /62/ 

IN AREAS OTHER THAN CRIMINAL ABORTION, THE LAW HAS BEEN RELUCTANT TO
ENDORSE ANY THEORY THAT LIFE, AS WE RECOGNIZE IT, BEGINS BEFORE LIVE
BIRTH OR TO ACCORD LEGAL RIGHTS TO THE UNBORN EXCEPT IN NARROWLY
DEFINED SITUATIONS AND EXCEPT WHEN THE RIGHTS ARE CONTINGENT UPON LIVE
BIRTH.  FOR EXAMPLE, THE TRADITIONAL RULE OF TORT LAW DENIED RECOVERY
FOR PRENATAL INJURIES EVEN THOUGH THE CHILD WAS BORN ALIVE.  /63/  THAT
RULE HAS BEEN CHANGED IN ALMOST EVERY JURISDICTION.  IN MOST STATES,
RECOVERY IS SAID TO BE PERMITTED ONLY IF THE FETUS WAS VIABLE, OR AT
LEAST QUICK, WHEN THE INJURIES WERE SUSTAINED, THOUGH FEW COURTS HAVE
SQUARELY SO HELD.  /64/  IN A RECENT DEVELOPMENT, GENERALLY OPPOSED BY
THE COMMENTATORS, SOME STATES PERMIT THE PARENTS OF A STILLBORN CHILD
TO MAINTAIN AN ACTION FOR WRONGFUL DEATH BECAUSE OF PRENATAL INJURIES. 
/65/  SUCH AN ACTION, HOWEVER, WOULD APPEAR TO BE ONE TO VINDICATE THE
PARENTS' INTEREST AND IS THUS CONSISTENT WITH THE VIEW THAT THE FETUS,
AT MOST, REPRESENTS ONLY THE POTENTIALITY OF LIFE.  SIMILARLY, UNBORN
CHILDREN HAVE BEEN RECOGNIZED AS ACQUIRING RIGHTS OR INTERESTS BY WAY
OF INHERITANCE OR OTHER DEVOLUTION OF PROPERTY, AND HAVE BEEN
REPRESENTED BY GUARDIANS AD LITEM.  /66/  PERFECTION OF THE INTERESTS
INVOLVED, AGAIN, HAS GENERALLY BEEN CONTINGENT UPON LIVE BIRTH.  IN
SHORT, THE UNBORN HAVE NEVER BEEN RECOGNIZED IN THE LAW AS PERSONS IN
THE WHOLE SENSE. 

        X 

IN VIEW OF ALL THIS, WE DO NOT AGREE THAT, BY ADOPTING ONE THEORY OF
LIFE, TEXAS MAY OVERRIDE THE RIGHTS OF THE PREGNANT WOMAN THAT ARE AT
STAKE.  WE REPEAT, HOWEVER, THAT THE STATE DOES HAVE AN IMPORTANT AND
LEGITIMATE INTEREST IN PRESERVING AND PROTECTING THE HEALTH OF THE
PREGNANT WOMAN, WHETHER SHE BE A RESIDENT OF THE STATE OR A NONRESIDENT
WHO SEEKS MEDICAL CONSULTATION AND TREATMENT THERE, AND THAT IT HAS
STILL ANOTHER IMPORTANT AND LEGITIMATE INTEREST IN PROTECTING THE
POTENTIALITY OF HUMAN LIFE.  THESE INTERESTS ARE SEPARATE AND
DISTINCT.  EACH GROWS IN SUBSTANTIALITY AS THE WOMAN APPROACHES TERM
AND, AT A POINT DURING PREGNANCY, EACH BECOMES "COMPELLING." 

WITH RESPECT TO THE STATE'S IMPORTANT AND LEGITIMATE INTEREST IN THE
HEALTH OF THE MOTHER, THE "COMPELLING" POINT, IN THE LIGHT OF PRESENT
MEDICAL KNOWLEDGE, IS AT APPROXIMATELY THE END OF THE FIRST TRIMESTER. 
THIS IS SO BECAUSE OF THE NOW-ESTABLISHED MEDICAL FACT, REFERRED TO
ABOVE AT 149, THAT UNTIL THE END OF THE FIRST TRIMESTER MORTALITY IN
ABORTION MAY BE LESS THAN MORTALITY IN NORMAL CHILDBIRTH.  IT FOLLOWS
THAT, FROM AND AFTER THIS POINT, A STATE MAY REGULATE THE ABORTION
PROCEDURE TO THE EXTENT THAT THE REGULATION REASONABLY RELATES TO THE
PRESERVATION AND PROTECTION OF MATERNAL HEALTH.  EXAMPLES OF
PERMISSIBLE STATE REGULATION IN THIS AREA ARE REQUIREMENTS AS TO THE
QUALIFICATIONS OF THE PERSON WHO IS TO PERFORM THE ABORTION; AS TO THE
LICENSURE OF THAT PERSON; AS TO THE FACILITY IN WHICH THE PROCEDURE IS
TO BE PERFORMED, THAT IS, WHETHER IT MUST BE A HOSPITAL OR MAY BE A
CLINIC OR SOME OTHER PLACE OF LESS-THAN-HOSPITAL STATUS; AS TO THE
LICENSING OF THE FACILITY; AND THE LIKE. 

THIS MEANS, ON THE OTHER HAND, THAT, FOR THE PERIOD OF PREGNANCY
PRIOR TO THIS "COMPELLING" POINT, THE ATTENDING PHYSICIAN, IN
CONSULTATION WITH HIS PATIENT, IS FREE TO DETERMINE, WITHOUT REGULATION
BY THE STATE, THAT, IN HIS MEDICAL JUDGMENT, THE PATIENT'S PREGNANCY
SHOULD BE TERMINATED.  IF THAT DECISION IS REACHED, THE JUDGMENT MAY BE
EFFECTUATED BY AN ABORTION FREE OF INTERFERENCE BY THE STATE. 

WITH RESPECT TO THE STATE'S IMPORTANT AND LEGITIMATE INTEREST IN
POTENTIAL LIFE, THE "COMPELLING" POINT IS AT VIABILITY.  THIS IS SO
BECAUSE THE FETUS THEN PRESUMABLY HAS THE CAPABILITY OF MEANINGFUL LIFE
OUTSIDE THE MOTHER'S WOMB.  STATE REGULATION PROTECTIVE OF FETAL LIFE
AFTER VIABILITY THUS HAS BOTH LOGICAL AND BIOLOGICAL JUSTIFICATIONS. 
IF THE STATE IS INTERESTED IN PROTECTING FETAL LIFE AFTER VIABILITY, IT
MAY GO SO FAR AS TO PROSCRIBE ABORTION DURING THAT PERIOD, EXCEPT WHEN
IT IS NECESSARY TO PRESERVE THE LIFE OR HEALTH OF THE MOTHER. 
MEASURED AGAINST THESE STANDARDS, ART. 1196 OF THE TEXAS PENAL CODE, IN
RESTRICTING LEGAL ABORTIONS TO THOSE "PROCURED OR ATTEMPTED BY MEDICAL
ADVICE FOR THE PURPOSE OF SAVING THE LIFE OF THE MOTHER,"  SWEEPS TOO
BROADLY.  THE STATUTE MAKES NO DISTINCTION BETWEEN ABORTIONS PERFORMED
EARLY IN PREGNANCY AND THOSE PERFORMED LATER, AND IT LIMITS TO A SINGLE
REASON, "SAVING" THE MOTHER'S LIFE, THE LEGAL JUSTIFICATION FOR THE
PROCEDURE.  THE STATUTE, THEREFORE, CANNOT SURVIVE THE CONSTITUTIONAL
ATTACK MADE UPON IT HERE. 

THIS CONCLUSION MAKES IT UNNECESSARY FOR US TO CONSIDER THE
ADDITIONAL CHALLENGE TO THE TEXAS STATUTE ASSERTED ON GROUNDS OF
VAGUENESS.  SEE UNITED STATES V. VUITCH, 402 U.S.,AT 67-72. 

        XI 

TO SUMMARIZE AND TO REPEAT: 

1.  A STATE CRIMINAL ABORTION STATUTE OF THE CURRENT TEXAS TYPE,
THAT EXCEPTS FROM CRIMINALITY ONLY A LIFESAVING PROCEDURE ON BEHALF OF
THE MOTHER, WITHOUT REGARD TO PREGNANCY STAGE AND WITHOUT RECOGNITION
OF THE OTHER INTERESTS INVOLVED, IS VIOLATIVE OF THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT. 

(A) FOR THE STAGE PRIOR TO APPROXIMATELY THE END OF THE FIRST
TRIMESTER, THE ABORTION DECISION AND ITS EFFECTUATION MUST BE LEFT TO
THE MEDICAL JUDGMENT OF THE PREGNANT WOMAN'S ATTENDING PHYSICIAN. 

(B) FOR THE STAGE SUBSEQUENT TO APPROXIMATELY THE END OF THE FIRST
TRIMESTER, THE STATE, IN PROMOTING ITS INTEREST IN THE HEALTH OF THE
MOTHER, MAY, IF IT CHOOSES, REGULATE THE ABORTION PROCEDURE IN WAYS
THAT ARE REASONABLY RELATED TO MATERNAL HEALTH. 

(C) FOR THE STAGE SUBSEQUENT TO VIABILITY, THE STATE IN PROMOTING
ITS INTEREST IN THE POTENTIALITY OF HUMAN LIFE MAY, IF IT CHOOSES,
REGULATE, AND EVEN PROSCRIBE, ABORTION EXCEPT WHERE IT IS NECESSARY, IN
APPROPRIATE MEDICAL JUDGMENT, FOR THE PRESERVATION OF THE LIFE OR
HEALTH OF THE MOTHER. 

2.  THE STATE MAY DEFINE THE TERM "PHYSICIAN," AS IT HAS BEEN
EMPLOYED IN THE PRECEDING PARAGRAPHS OF THIS PART XI OF THIS OPINION,
TO MEAN ONLY A PHYSICIAN CURRENTLY LICENSED BY THE STATE, AND MAY
PROSCRIBE ANY ABORTION BY A PERSON WHO IS NOT A PHYSICIAN AS SO
DEFINED. 

IN DOE V. BOLTON, POST, P. 179, PROCEDURAL REQUIREMENTS CONTAINED IN
ONE OF THE MODERN ABORTION STATUTES ARE CONSIDERED.  THAT OPINION AND
THIS ONE, OF COURSE, ARE TO BE READ TOGETHER.  /67/ 

THIS HOLDING, WE FEEL, IS CONSISTENT WITH THE RELATIVE WEIGHTS OF
THE RESPECTIVE INTERESTS INVOLVED, WITH THE LESSONS AND EXAMPLES OF
MEDICAL AND LEGAL HISTORY, WITH THE LENITY OF THE COMMON LAW, AND WITH
THE DEMANDS OF THE PROFOUND PROBLEMS OF THE PRESENT DAY.  THE DECISION
LEAVES THE STATE FREE TO PLACE INCREASING RESTRICTIONS ON ABORTION AS
THE PERIOD OF PREGNANCY LENGTHENS, SO LONG AS THOSE RESTRICTIONS ARE
TAILORED TO THE RECOGNIZED STATE INTERESTS.  THE DECISION VINDICATES
THE RIGHT OF THE PHYSICIAN TO ADMINISTER MEDICAL TREATMENT ACCORDING TO
HIS PROFESSIONAL JUDGMENT UP TO THE POINTS WHERE IMPORTANT STATE
INTERESTS PROVIDE COMPELLING JUSTIFICATIONS FOR INTERVENTION.  UP TO
THOSE POINTS, THE ABORTION DECISION IN ALL ITS ASPECTS IS INHERENTLY,
AND PRIMARILY, A MEDICAL DECISION, AND BASIC RESPONSIBILITY FOR IT MUST
REST WITH THE PHYSICIAN.  IF AN INDIVIDUAL PRACTITIONER ABUSES THE
PRIVILEGE OF EXERCISING PROPER MEDICAL JUDGMENT, THE USUAL REMEDIES,
JUDICIAL AND INTRA-PROFESSIONAL, ARE AVAILABLE. 

XII 

OUR CONCLUSION THAT ART. 1196 IS UNCONSTITUTIONAL MEANS, OF COURSE,
THAT THE TEXAS ABORTION STATUTES, AS A UNIT, MUST FALL.  THE EXCEPTION
OF ART. 1196 CANNOT BE STRUCK DOWN SEPARATELY, FOR THEN THE STATE WOULD
BE LEFT WITH A STATUTE PROSCRIBING ALL ABORTION PROCEDURES NO MATTER
HOW MEDICALLY URGENT THE CASE. 

ALTHOUGH THE DISTRICT COURT GRANTED APPELLANT ROE DECLARATORY
RELIEF, IT STOPPED SHORT OF ISSUING AN INJUNCTION AGAINST ENFORCEMENT
OF THE TEXAS STATUTES.  THE COURT HAS RECOGNIZED THAT DIFFERENT
CONSIDERATIONS ENTER INTO A FEDERAL COURT'S DECISION AS TO RELIEF, ON
THE ONE HAND, AND INJUNCTIVE RELIEF, ON THE OTHER.  ZWICKLER V. KOOTA,
389 U.S. 241, 252-255 (1967); DOMBROWSKI V. PFISTER, 380 U.S. 479
(1965).  WE ARE NOT DEALING WITH A STATUTE THAT, ON ITS FACE, APPEARS
TO ABRIDGE FREE EXPRESSION, AN AREA OF PARTICULAR CONCERN UNDER
DOMBROWSKI AND REFINED IN YOUNGER V. HARRIS, 401 U.S.,AT 50. 

WE FIND IT UNNECESSARY TO DECIDE WHETHER THE DISTRICT COURT ERRED IN
WITHHOLDING INJUNCTIVE RELIEF, FOR WE ASSUME THE TEXAS PROSECUTORIAL
AUTHORITIES WILL GIVE FULL CREDENCE TO THIS DECISION THAT THE PRESENT
CRIMINAL ABORTION STATUTES OF THAT STATE ARE UNCONSTITUTIONAL. 

THE JUDGMENT OF THE DISTRICT COURT AS TO INTERVENOR HALLFORD IS
REVERSED, AND DR. HALLFORD'S COMPLAINT IN INTERVENTION IS DISMISSED. 
IN ALL OTHER RESPECTS, THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 
COSTS ARE ALLOWED TO THE APPELLEE. 

              IT IS SO ORDERED. 

(FOR CONCURRING OPINION OF MR. CHIEF JUSTICE BURGER, SEE POST, P.
207.) 

(FOR CONCURRING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 209.) 

(FOR DISSENTING OPINION OF MR. JUSTICE WHITE, SEE POST, P. 221.) 

/0/  BRIEFS OF AMICI CURIAE WERE FILED BY GARY K. NELSON, ATTORNEY
GENERAL OF ARIZONA, ROBERT K. KILLIAN, ATTORNEY GENERAL OF CONNECTICUT,
ED W. HANCOCK, ATTORNEY GENERAL OF KENTUCKY, CLARENCE A. H. MEYER,
ATTORNEY GENERAL OF NEBRASKA, AND VERNON B. ROMNEY, ATTORNEY GENERAL OF
UTAH; BY JOSEPH P. WITHERSPOON, JR., FOR THE ASSOCIATION OF TEXAS
DIOCESAN ATTORNEYS; BY CHARLES E. RICE FOR AMERICANS UNITED FOR LIFE;
BY EUGENE J. MCMAHON FOR WOMEN FOR THE UNBORN ET AL.; BY CAROL RYAN FOR
THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS ET AL.; BY
DENNIS J. HORAN, JEROME A. FRAZEL, JR., THOMAS M. CRISHAM, AND DOLORES
V. HORAN FOR CERTAIN PHYSICIANS, PROFESSORS AND FELLOWS OF THE AMERICAN
COLLEGE OF OBSTETRICS AND GYNECOLOGY; BY HARRIET F. PILPEL, NANCY F.
WECHSLER, AND FREDERIC S. NATHAN FOR PLANNED PARENTHOOD FEDERATION OF
AMERICA, INC., ET AL.; BY ALAN F. CHARLES FOR THE NATIONAL LEGAL
PROGRAM ON HEALTH PROBLEMS OF THE POOR ET AL.; BY MARTTIE L. THOMPSON
FOR STATE COMMUNITIES AID ASSN.; BY ALFRED L. SCANLAN, MARTIN J. FLYNN,
AND ROBERT M. BYRN FOR THE NATIONAL RIGHT TO LIFE COMMITTEE; BY HELEN
L. BUTTENWIESER FOR THE AMERICAN ETHICAL UNION ET AL.; BY NORMA G.
ZARKY FOR THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN ET AL.; BY NANCY
STEARNS FOR NEW WOMEN LAWYERS ET AL.; BY THE CALIFORNIA COMMITTEE TO
LEGALIZE ABORTION ET AL.; AND BY ROBERT E. DUNNE FOR ROBERT L.
SASSONE. 

/1/  "ARTICLE 1191.  ABORTION. 

"IF ANY PERSON SHALL DESIGNEDLY ADMINISTER TO A PREGNANT WOMAN OR
KNOWINGLY PROCURE TO BE ADMINISTERED WITH HER CONSENT ANY DRUG OR
MEDICINE, OR SHALL USE TOWARDS HER ANY VIOLENCE OR MEANS WHATEVER
EXTERNALLY OR INTERNALLY APPLIED, AND THEREBY PROCURE AN ABORTION, HE
SHALL BE CONFINED IN THE PENITENTIARY NOT LESS THAN TWO NOR MORE THAN
FIVE YEARS; IF IT BE DONE WITHOUT HER CONSENT, THE PUNISHMENT SHALL BE
DOUBLED.  BY 'ABORTION' IS MEANT THAT THE LIFE OF THE FETUS OR EMBRYO
SHALL BE DESTROYED IN THE WOMAN'S WOMB OR THAT A PREMATURE BIRTH
THEREOF BE CAUSED. 

"ART. 1192.  FURNISHING THE MEANS 

"WHOEVER FURNISHES THE MEANS FOR PROCURING AN ABORTION KNOWING THE
PURPOSE INTENDED IS GUILTY AS AN ACCOMPLICE. 

"ART. 1193.  ATTEMPT AT ABORTION 

"IF THE MEANS USED SHALL FAIL TO PRODUCE AN ABORTION, THE OFFENDER
IS NEVERTHELESS GUILTY OF AN ATTEMPT TO PRODUCE ABORTION, PROVIDED IT
BE SHOWN THAT SUCH MEANS WERE CALCULATED TO PRODUCE THAT RESULT, AND
SHALL BE FINED NOT LESS THAN ONE HUNDRED NOR MORE THAN ONE THOUSAND
DOLLARS. 

"ART. 1194.  MURDER IN PRODUCING ABORTION 

"IF THE DEATH OF THE MOTHER IS OCCASIONED BY AN ABORTION SO PRODUCED
BY MEDICAL ADVICE FOR THE PURPOSE OF SAVING THE LIFE OF THE MOTHER." 

"ART. 1196.  BY MEDICAL ADVICE 

"NOTHING IN THIS CHAPTER APPLIES TO AN ABORTION PROCURED OR
ATTEMPTED BY MEDICAL ADVICE FOR THE PURPOSE OF SAVING THE LIFE OF THE
MOTHER." 

THE FOREGOING ARTICLES, TOGETHER WITH ART. 1195, COMPOSE CHAPTER 9
OF TITLE 15 OF THE PENAL CODE.  ARTICLE 1195, NOT ATTACKED HERE,
READS: 

"ART. 1195.  DESTROYING UNBORN CHILD 

"WHOEVER SHALL DURING PARTURITION OF THE MOTHER DESTROY THE VITALITY
OR LIFE IN A CHILD IN A STATE OF BEING BORN AND BEFORE ACTUAL BIRTH,
WHICH CHILD WOULD OTHERWISE HAVE BEEN BORN ALIVE, SHALL BE CONFINED IN
THE PENITENTIARY FOR LIFE OR FOR NOT LESS THAN FIVE YEARS." 

/2/  ARIZ. REV. STAT. ANN. SEC. 13-211 (1956); CONN. PUB. ACT NO. 1
(MAY 1972 SPECIAL SESSION) (IN 4 CONN.LEG.SERV.  677 (1972)), AND CONN.
GEN. STAT. REV. SECS. 53-29, 53-30 (1968) (OR UNBORN CHILD); IDAHO CODE
SEC. 18-601 (1948); ILL. REV. STAT., C. 38, SEC. 23-1 (1971); IND. CODE
SEC. 35-1-58-1 (1971); IOWA CODE SEC. 701.1 (1971); KY. REV. STAT. SEC.
436.020 (1962); LA. REV. STAT. SEC. 37:1285(6) (1964) (LOSS OF MEDICAL
LICENSE) (BUT SEE SEC. 14:87 (SUPP. 1972) CONTAINING NO EXCEPTION FOR
THE LIFE OF THE MOTHER UNDER THE CRIMINAL STATUTE); ME. REV. STAT.
ANN., TIT. 17, SEC. 51 (1964); MASS. GEN. LAWS ANN., C. 272, SEC. 19
(1970) (USING THE TERM "UNLAWFULLY," CONSTRUED TO EXCLUDE AN ABORTION
TO SAVE THE MOTHER'S LIFE, KUDISH V. BD. OF REGISTRATION, 356 MASS. 98,
248 N.E.2D 264 (1969); MICH. COMP. LAWS SEC. 750.14 (1948); MINN. STAT.
SEC. 617.18 (1971); MO. REV. STAT. SEC. 559.100 (1969); MONT. REV.
CODES ANN. SEC. 94-401 (1969); NEB. REV. STAT. ANN. SEC. 585:13 (1955);
N. J. STAT. ANN. SEC. 2A:87-1 (1969) ("WITHOUT LAWFUL JUSTIFICATION");
N.D. CENT. CODE SECS. 12-25-01, 12-25-02 (1960); OHIO REV. CODE ANN.
SEC. 2901.16 (1953); OKLA. STAT. ANN., TIT. 21, SEC. 861 (1972-1973
SUPP.); PA. STAT. ANN., TIT. 18, SECS. 4718, 4719 (1963) ("UNLAWFUL");
R.I. GEN. LAWS ANN. SEC. 11-3-1 (1969); S.D. COMP. LAWS ANN. SEC. 22-17
1 (1967); TENN. CODE ANN. SECS. 39-301, 39-302 (1956); UTAH CODE ANN.
SECS. 76-2-1, 76-2-2 (1953); VT. STAT. ANN., TIT. 13, SEC. 101 (1958);
W.VA. CODE ANN. SEC. 61-2-8 (1966); WIS. STAT. SEC. 940.04 (1969); WYO.
STAT. ANN. SECS. 6-77, 6-78, (1957). 

/3/  LONG AGO, A SUGGESTION WAS MADE THAT THE TEXAS STATUTES WERE
UNCONSTITUTIONALLY VAGUE BECAUSE OF DEFINITIONAL DEFICIENCIES.  THE
TEXAS COURT OF CRIMINAL APPEALS DISPOSED OF THAT SUGGESTION
PEREMPTORILY, SAYING ONLY, "IT IS ALSO INSISTED IN THE MOTION IN ARREST
OF JUDGMENT THAT THE STATUTE IS UNCONSTITUTIONAL AND VOID IN THAT IT
DOES NOT SUFFICIENTLY DEFINE OR DESCRIBE THE OFFENSE OF ABORTION.  WE
DO NOT CONCUR IN RESPECT TO THIS QUESTION."  JACKSON V. STATE, 55
TEX.CR.R. 79, 89, 115 S.W. 262, 268 (1908). 

THE SAME COURT RECENTLY HAS HELD AGAIN THAT THE STATE'S ABORTION
STATUTES ARE NOT UNCONSTITUTIONALLY VAGUE OR OVERBROAD.  THOMPSON V.
STATE (CT. CRIM. APP. TEX. 1971), APPEAL DOCKETED, NO. 71-1200.  THE
COURT HELD THAT "THE STATE OF TEXAS HAS A COMPELLING INTEREST TO
PROTECT FETAL LIFE"; THAT ART. 1191 "IS DESIGNED TO PROTECT FETAL
LIFE"; THAT THE TEXAS HOMICIDE STATUTES, PARTICULARLY ART. 1205 OF THE
PENAL CODE, ARE INTENDED TO PROTECT A PERSON "IN EXISTENCE BY ACTUAL
BIRTH" AND THEREBY IMPLICITLY RECOGNIZE OTHER HUMAN LIFE THAT IS NOT
"IN EXISTENCE BY ACTUAL BIRTH"; THAT THE DEFINITION OF HUMAN LIFE IS
FOR THE LEGISLATURE AND NOT THE COURTS; THAT ART. 1196 "IS MORE
DEFINITE THAN THE DISTRICT OF COLUMBIA STATUTE UPHELD IN (UNITED STATES
V.)  VUITCH" (402 U.S. 62); AND THAT THE TEXAS STATUTE "IS NOT VAGUE
AND INDEFINITE OR OVERBROAD."  A PHYSICIAN'S ABORTION CONVICTION WAS
AFFIRMED. 

IN THOMPSON, N. 2, THE COURT OBSERVED THAT ANY ISSUE AS TO THE
BURDEN OF PROOF UNDER THE EXEMPTION OF ART. 1196 "IS NOT BEFORE US." 
BUT SEE VEEVERS V. STATE, 172 TEX.CR.R. 162, 168-169, 354 S.W.2D 161,
166-167 (1962).  CF. UNITED STATES V. VUITCH, 402 U.S. 62, 69-71
(1971). 

/4/  THE NAME IS A PSEUDONYM. 

/5/  THESE NAMES ARE PSEUDONYMS. 

/6/  THE APPELLEE TWICE STATES IN HIS BRIEF THAT THE HEARING BEFORE
THE DISTRICT COURT WAS HELD ON JULY 22, 1970.  BRIEF FOR APPELLEE 13. 
THE DOCKET ENTRIES, APP. 2, AND THE TRANSCRIPT, APP. 76, REVEAL THIS TO
BE AN ERROR.  THE JULY DATE APPEARS TO BE THE TIME OF THE REPORTER'S
TRANSCRIPTION.  SEE APP. 77. 

/7/  WE NEED NOT CONSIDER WHAT DIFFERENT RESULT, IF ANY, WOULD
FOLLOW IF DR. HALLFORD'S INTERVENTION WERE ON BEHALF OF A CLASS.  HIS
COMPLAINT IN INTERVENTION DOES NOT PURPORT TO ASSERT A CLASS SUIT AND
MAKES NO REFERENCE TO ANY CLASS APART FROM AN ALLEGATION THAT HE "AND
OTHERS SIMILARLY SITUATED" MUST NECESSARILY GUESS AT THE MEANING OF
ART. 1196.  HIS APPLICATION FOR LEAVE TO INTERVENE GOES SOMEWHAT
FURTHER, FOR IT ASSERTS THAT PLAINTIFF ROE DOES NOT ADEQUATELY PROTECT
THE INTEREST OF THE DOCTOR "AND THE CLASS OF PEOPLE WHO ARE PHYSICIANS
. . . (AND) THE CLASS OF PEOPLE WHO ARE . . . PATIENTS . . . ."  THE
LEAVE APPLICATION, HOWEVER, IS NOT THE COMPLAINT.  DESPITE THE DISTRICT
COURT'S STATEMENT TO THE CONTRARY, 314 F.SUPP.,AT 1225, WE FAIL TO
PERCEIVE THE ESSENTIALS OF A CLASS SUIT IN THE HALLFORD COMPLAINT. 

/8/  A. CASTIGLIONI, A HISTORY OF MEDICINE 84 (2D ED. 1947), E.
KRUMBHAAR, TRANSLATOR AND EDITOR (HEREINAFTER CASTIGLIONI). 

/9/  J. RICCI, THE GENEALOGY OF GYNAECOLOGY 52, 84, 113, 149 (2D ED.
1950) (HEREINAFTER RICCI); L. LADER, ABORTION 75-77 (1966) (HEREINAFTER
LADER); K. NISWANDER, MEDICAL ABORTION PRACTICES IN THE UNITED STATES,
IN ABORTION AND THE LAW 37, 38-40 (D. SMITH ED. 1967); G. WILLIAMS, THE
SANCTITY OF LIFE AND THE CRIMINAL LAW 148 (1957) (HEREINAFTER WILLIAMS;
J. NOONAN, AN ALMOST ABSOLUTE VALUE IN HISTORY, IN THE MORALITY OF
ABORTION 1, 3-7 (J. NOONAN ED. 1970) (HEREINAFTER NOONAN); QUAY,
JUSTIFIABLE ABORTION-- MEDICAL AND LEGAL FOUNDATIONS (PT. 2), 49
GEO.L.J. 395, 406-422 (1962) (HEREINAFTER QUAY).     /10/  L.
EDELSTEIN, THE HIPPOCRATIC OATH 10 (1943) (HEREINAFTER EDELSTEIN).  BUT
SEE CASTIGLIONI 227. 

/11/  EDELSTEIN 12; RICCI 113-114, 118-119; NOONAN 5. 

/12/  EDELSTEIN 13-14. 

/13/  CASTIGLIONI 148. 

/14/  ID., AT 154. 

/15/  EDELSTEIN 3. 

/16/  ID., AT 12, 15-18.     /17/  ID., AT 18; LADER 76. 

/18/  EDELSTEIN 63. 

/19/  ID., AT 64. 

/20/  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1261 (24TH ED.
1965). 

/21/  E. COKE, INSTITUTES III 50; 1 W. HAWKINS, PLEAS OF THE CROWN,
C. 31, SEC. 16 (4TH ED. 1762); 1 W. BLACKSTONE, COMMENTARIES 129-130;
M. HALE, PLEAS OF THE CROWN 433 (1ST AMER.  ED. 1847).  FOR DISCUSSIONS
OF THE ROLE OF THE QUICKENING CONCEPT IN ENGLISH COMMON LAW, SEE LADER
78; NOONAN 223-226; MEANS, THE LAW OF NEW YORK CONCERNING ABORTION AND
THE STATUS OF THE FOETUS, 1664-1968:  A CASE OF CESSATION OF
CONSTITUTIONALITY (PT. 1), 14 N.Y.L.F. 411, 418-428 (1968) (HEREINAFTER
MEANS I); STERN, ABORTION:  REFORM AND THE LAW, 59 J.CRIM.L.C.& P.S. 84
(1968) (HEREINAFTER STERN); QUAY 430-432; WILLIAMS 152. 

/22/  EARLY PHILOSOPHERS BELIEVED THAT THE EMBRYO OR FETUS DID NOT
BECOME FORMED AND BEGIN TO LIVE UNTIL AT LEAST 40 DAYS AFTER CONCEPTION
FOR A MALE, AND 80 TO 90 DAYS FOR A FEMALE.  SEE, FOR EXAMPLE,
ARISTOTLE, HIS.  ANIM.  7.3.583B; GEN. ANIM.  2.3.736, 2.5.741;
HIPPOCRATES.  LIB.  DE NAT. PUER., NO. 10.  ARISTOTLE'S THINKING
DERIVED FROM HIS THREE-STAGE THEORY OF LIFE:  VEGETABLE, ANIMAL,
RATIONAL.  THE VEGETABLE STAGE WAS REACHED AT CONCEPTION, THE ANIMAL AT
"ANIMATION,"  AND THE RATIONAL SOON AFTER LIVE BIRTH.  THIS THEORY,
TOGETHER WITH THE 40/80 DAY VIEW, CAME TO BE ACCEPTED BY EARLY
CHRISTIAN THINKERS. 

THE THEOLOGICAL DEBATE WAS REFLECTED IN THE WRITINGS OF ST.
AUGUSTINE, WHO MADE A DISTINCTION BETWEEN EMBRYO INANIMATUS, NOT YET
ENDOWED WITH A SOUL, AND EMBRYO ANIMATUS.  HE MAY HAVE DRAWN UPON
EXODUS 21:22.  AT ONE POINT, HOWEVER, HE EXPRESSED THE VIEW THAT HUMAN
POWERS CANNOT DETERMINE THE POINT DURING FETAL DEVELOPMENT AT WHICH THE
CRITICAL CHANGE OCCURS.  SEE AUGUSTINE, DE ORIGINE ANIMAE 4.4 (PUB. LAW
44.527).  SEE ALSO W. REANY, THE CREATION OF THE HUMAN SOUL, C. 2 AND
83-86 (1932); HUSER, THE CRIME OF ABORTION IN CANON LAW 15 (CATHOLIC
UNIV.  OF AMERICA, CANON LAW STUDIES NO. 162, WASHINGTON, D.C., 1942). 

GALEN, IN THREE TREATISES RELATED TO EMBRYOLOGY, ACCEPTED THE
THINKING OF ARISTOTLE AND HIS FOLLOWERS.  QUAY 426-427.  LATER,
AUGUSTINE ON ABORTION WAS INCORPORATED BY GRATIAN INTO THE DECRETUM,
PUBLISHED ABOUT 1140.  DECRETUM MAGISTRI GRATIANI 2.32.2.7 TO
2.32.2.10, IN 1 CORPUS JURIS CANONICI 1122, 1123 (A. FRIEDBURG, 2D ED.
1879).  THIS DECRETAL AND THE DECRETALS THAT FOLLOWED WERE RECOGNIZED
AS THE DEFINITIVE BODY OF CANON LAW UNTIL THE NEW CODE OF 1917. 

FOR DISCUSSIONS OF THE CANON-LAW TREATMENT, SEE MEANS I, PP. 411
412; NOONAN 20-26; QUAY 426-430; SEE ALSO J. NOONAN, CONTRACEPTION:  A
HISTORY OF ITS TREATMENT BY THE CATHOLIC THEOLOGIANS AND CANONISTS 18
29 (1965). 

/23/  BRACTON TOOK THE POSITION THAT ABORTION BY BLOW OR POISON WAS
HOMICIDE "IF THE FOETUS BE ALREADY FORMED AND ANIMATED, AND
PARTICULARLY IF IT BE ANIMATED."  2 H.BRACTON, DE LEGIBUS ET
CONSUETUDINIBUS ANGLIAE 279 (T. TWISS ED. 1879), OR, AS A LATER
TRANSLATION PUTS IT, "IF THE FOETUS IS ALREADY FORMED OR QUICKENED,
ESPECIALLY IF IT IS QUICKENED," 2 H.BRACTON, ON THE LAWS AND CUSTOMS OF
ENGLAND 341 (S. THORNE ED. 1968).  SEE QUAY 431; SEE ALSO 2 FLETA 60-61
(BOOK 1, C. 23) (SELDEN SOCIETY ED. 1955). 

/24/  E. COKE, INSTITUTES III 50. 

/25/  1 W.BLACKSTONE, COMMENTARIES 129-130. 

/26/  MEANS, THE PHOENIX OF ABORTIONAL FREEDOM:  IS A PENUMBRAL OR
NINTH-AMENDMENT RIGHT ABOUT TO ARISE FROM THE NINETEENTH-CENTURY
LEGISLATIVE ASHES OF A FOURTEENTH-CENTURY COMMON-LAW LIBERTY?, 17
N.Y.L.F. 335 (1971) (HEREINAFTER MEANS II).  THE AUTHOR EXAMINES THE
TWO PRINCIPAL PRECEDENTS CITED MARGINALLY BY COKE, BOTH CONTRARY TO HIS
DICTUM, AND TRACES THE TREATMENT OF THESE AND OTHER CASES BY EARLIER
COMMENTATORS.  HE CONCLUDES THAT COKE, WHO HIMSELF PARTICIPATED AS AN
ADVOCATE IN AN ABORTION CASE IN 1601, MAY HAVE INTENTIONALLY MISSTATED
THE LAW.  THE AUTHOR EVEN SUGGESTS A REASON:  COKE'S STRONG FEELINGS
AGAINST ABORTION, COUPLED WITH HIS DETERMINATION TO ASSERT COMMON-LAW
(SECULAR) JURISDICTION TO ASSESS PENALTIES FOR AN OFFENSE THAT
TRADITIONALLY HAD BEEN AN EXCLUSIVELY ECCLESIASTICAL OR CANON-LAW
CRIME.  SEE ALSO LADER 78-79, WHO NOTES THAT SOME SCHOLARS DOUBT THAT
THE COMMON LAW EVER WAS APPLIED TO ABORTION; THAT THE ENGLISH
ECCLESIASTICAL COURTS SEEM TO HAVE LOST INTEREST IN THE PROBLEM AFTER
1527; AND THAT THE PREAMBLE TO THE ENGLISH LEGISLATION OF 1803, 43 GEO.
3, C. 58, SEC. 1 REFERRED TO IN THE TEXT, INFRA, AT 136, STATES THAT
"NO ADEQUATE MEANS HAVE BEEN HITHERTO PROVIDED FOR THE PREVENTION AND
PUNISHMENT OF SUCH OFFENSES." 

/27/  COMMONWEALTH V. BANGS, 9 MASS. 387, 388 (1812); COMMONWEALTH
V. PARKER, 50 MASS. (9 METC.)  263, 265-266 (1845); STATE V. COOPER, 22
N.J.L. 52, 58 (1849); ABRAMS V. FOSHEE, 3 IOWA 274, 278-280 (1856);
SMITH V. GAFFARD, 31 ALA. 45, 51 (1857); MITCHELL V. COMMONWEALTH, 78
KY. 204, 210 (1879); EGGART V. STATE, 40 FLA. 527, 532, 25 SO. 144, 145
(1898); STATE V. ALCORN, 7 IDAHO 599, 606, 64 P. 1014, 1016 (1901);
EDWARDS STATE, 79 NEB. 251, 252, 112 N.W. 611, 612 (1907); GRAY V.
STATE, 77 TEX.CR.R. 221, 224, 178 S.W. 337, 338 (1915); MILLER V.
BENNETT, 190 VA. 162, 169, 56 S.E.2D 217, 221 (1949).  CONTRA, MILLS V.
COMMONWEALTH, 13 PA. 631, 633 (1850); STATE V. SLAGLE, 83 N.C. 630, 632
(1880). 

/28/  SEE SMITH V. STATE, 33 ME. 48, 55 (1851); EVANS V. PEOPLE, 49
N.Y. 86, 88 (1872); LAMB V. STATE, 67 MD. 524, 533, 10 A. 208 (1887). 

/29/  CONN. STAT., TIT. 20, SEC. 14 (1821). 

/30/  CONN. PUB. ACTS, C. 71, SEC. 1 (1860). 

/31/  N.Y. REV. STAT., PT. 4, C. 1, TIT. 2, ART. 1, SEC. 9, P. 661,
AND TIT. 6, SEC. 21, P. 694 (1829). 

/32/  ACT OF JAN. 20, 1840, SEC. 1, SET FORTH IN 2 H. GAMMEL, LAWS
OF TEXAS 177-178 (1898); SEE GRIGSBY V. REIB, 105 TEX. 597, 600, 153
S.W. 1124, 1125 (1913). 

/33/  THE EARLY STATUTES ARE DISCUSSED IN QUAY 435-438.  SEE ALSO
LADER 85-88; STERN 85-86; AND MEANS II 375-376. 

/34/  CRIMINAL ABORTION STATUTES IN EFFECT IN THE STATES AS OF 1961,
TOGETHER WITH HISTORICAL STATUTORY DEVELOPMENT AND IMPORTANT JUDICIAL
INTERPRETATIONS OF THE STATE STATUTES, ARE CITED AND QUOTED IN QUAY 447
520.  SEE COMMENT, A SURVEY OF THE PRESENT STATUTORY AND CASE LAW ON
ABORTION:  THE CONTRADICTIONS AND THE PROBLEMS, 1972 U.ILL.L.F. 177,
179, CLASSIFYING THE ABORTION STATUTES AND LISTING 25 STATES AS
PERMITTING ABORTION ONLY IF NECESSARY TO SAVE OR PRESERVE THE MOTHER'S
LIFE. 

/35/  ALA. CODE, TIT. 14, SEC. 9 (1958); D.C. CODE ANN. SEC. 22-201
(1967). 

/36/  MASS. GEN. LAWS ANN., C. 272, SEC. 19 (1970); N.J. STAT. ANN.
SEC. 2A:87-1 (1969); PA. STAT. ANN., TIT. 18, SECS. 4718, 4719 (1963). 

/37/  FOURTEEN STATES HAVE ADOPTED SOME FORM OF THE ALI STATUTE. 
SEE ARK. STAT. ANN. SECS. 41-303 TO 41-310 (SUPP. 1971); CALIF. HEALTH
& SAFETY CODE SECS. 25950-25955.5 (SUPP. 1972); COLO. REV. STAT. ANN.
SECS. 40-2-50 TO 40-2-53 (CUM. SUPP. 1967); DEL. CODE ANN., TIT. 24,
SECS. 1790-1793 (SUPP. 1972); FLORIDA LAW OF APR. 13, 1972, C. 72-196,
1972 FLA. SESS. LAW SERV., PP. 380-382; GA. CODE SECS. 26-1201 TO 26
1203 (1972); KAN. STAT. ANN. SEC. 21-3407 (SUPP. 1971); MD. ANN. CODE,
ART. 43, SECS. 137-139 (1971); MISS.  CODE ANN. SEC. 2223 (SUPP. 1972);
N.M. STAT. ANN. SECS. 40A-5-1 TO 40A-5-3 (1972); N.C. GEN. STAT.SES. 
14-45.1 (SUPP. 1971); ORE.  REV.  STAT. SECS. 435.405 TO 435.495
(1971); S.C. CODE ANN. SECS. 16-82 TO 16-89 (1962 AND SUPP. 1971); VA.
CODE ANN. SECS. 18.1-62 TO 18.1-62.3 (SUPP. 1972).  MR. JUSTICE CLARK
DESCRIBED SOME OF THESE STATES AS HAVING "LED THE WAY."  RELIGION,
MORALITY, AND ABORTION:  A CONSTITUTIONAL APPRAISAL, 2 LOYOLA
U.(L.A.L.REV.  1, 11 (1969). 

BY THE END OF 1970, FOUR OTHER STATES HAD REPEALED CRIMINAL PENALTIES
FOR ABORTIONS PERFORMED IN EARLY PREGNANCY BY A LICENSED PHYSICIAN,
SUBJECT TO STATED PROCEDURAL AND HEALTH REQUIREMENTS.  ALASKA STAT.
SEC. 11.15.060 (1970); HAW.  REV.  STAT. SEC. 453-16 (SUPP. 1971); N.Y.
PENAL CODE SEC. 125.05, SUBD. 3 SUBD. 3 (SUPP. 1972-1973); WASH. REV.
CODE SECS. 9.02.060 TO 9.02.080 (SUPP. 1972).  THE PRECISE STATUS OF
CRIMINAL ABORTION LAWS IN SOME STATES IS MADE UNCLEAR BY RECENT
DECISIONS IN STATE AND FEDERAL COURTS STRIKING DOWN EXISTING STATE
LAWS, IN WHOLE OR IN PART. 

/38/  "WHEREAS, ABORTION, LIKE ANY OTHER MEDICAL PROCEDURE, SHOULD
NOT BE PERFORMED WHEN CONTRARY TO THE BEST INTERESTS OF THE PATIENT
SINCE GOOD MEDICAL PRACTICE REQUIRES DUE CONSIDERATION FOR THE
PATIENT'S WELFARE AND NOT MERE ACQUIESCENCE TO THE PATIENT'S DEMAND;
AND 

"WHEREAS, THE STANDARDS OF SOUND CLINICAL JUDGMENT, WHICH, TOGETHER
WITH INFORMED PATIENT CONSENT SHOULD BE DETERMINATIVE ACCORDING TO THE
MERITS OF EACH INDIVIDUAL CASE; THEREFORE BE IT 

"RESOLVED, THAT ABORTION IS A MEDICAL PROCEDURE AND SHOULD BE
PERFORMED ONLY BY A DULY LICENSED PHYSICIAN AND SURGEON IN AN
ACCREDITED HOSPITAL ACTING ONLY AFTER CONSULTATION WITH TWO OTHER
PHYSICIANS CHOSEN BECAUSE OF THEIR PROFESSIONAL COMPETENCY AND IN
CONFORMANCE WITH STANDARDS OF GOOD MEDICAL PRACTICE AND THE MEDICAL
PRACTICE ACT OF HIS STATE; AND BE IT FURTHER 

"RESOLVED, THAT NO PHYSICIAN OR OTHER PROFESSIONAL PERSONNEL SHALL
BE COMPELLED TO PERFORM ANY ACT WHICH VIOLATES HIS GOOD MEDICAL
JUDGMENT.  NEITHER PHYSICIAN, HOSPITAL, NOR HOSPITAL PERSONNEL SHALL BE
REQUIRED TO PERFORM ANY ACT VIOLATIVE OF PERSONALLY-HELD MORAL
PRINCIPLES.  IN THESE CIRCUMSTANCES GOOD MEDICAL PRACTICE REQUIRES ONLY
THAT THE PHYSICIAN OR OTHER PROFESSIONAL PERSONNEL WITHDRAW FROM THE
CASE SO LONG AS THE WITHDRAWAL IS CONSISTENT WITH GOOD MEDICAL
PRACTICE."  PROCEEDINGS OF THE AMA HOUSE OF DELEGATES 220 (JUNE 1970). 

/39/  "THE PRINCIPLES OF MEDICAL ETHICS OF THE AMA DO NOT PROHIBIT A
PHYSICIAN FROM PERFORMING AN ABORTION THAT IS PERFORMED IN ACCORDANCE
WITH GOOD MEDICAL PRACTICE AND UNDER CIRCUMSTANCES THAT DO NOT VIOLATE
THE LAWS OF THE COMMUNITY IN WHICH HE PRACTICES. 

"IN THE MATTER OF ABORTIONS, AS OF ANY OTHER MEDICAL PROCEDURE, THE
JUDICIAL COUNCIL BECOMES INVOLVED WHENEVER THERE IS ALLEGED VIOLATION
OF THE PRINCIPLES OF MEDICAL ETHICS AS ESTABLISHED BY THE HOUSE OF
DELEGATES." 

/40/

        "UNIFORM ABORTION ACT 

"SECTION 1.  (ABORTION DEFINED; WHEN AUTHORIZED.) 

(A) 'ABORTION' MEANS THE TERMINATION OF HUMAN PREGNANCY WITH AN
INTENTION OTHER THAN TO PRODUCE A LIVE BIRTH OR TO REMOVE A DEAD
FETUS. 

"(B) AN ABORTION MAY BE PERFORMED IN THIS STATE ONLY IF IT IS
PERFORMED: 

"(1) BY A PHYSICIAN LICENSED TO PRACTICE MEDICINE (OR OSTEOPATHY) IN
THIS STATE OR BY A PHYSICIAN PRACTICING MEDICINE (OR OSTEOPATHY) IN THE
EMPLOY OF THE GOVERNMENT OF THE UNITED STATES OR OF THIS STATE, (AND
THE ABORTION IS PERFORMED (IN THE PHYSICIAN'S OFFICE OR IN A MEDICAL
CLINIC, OR) IN A HOSPITAL APPROVED BY THE (DEPARTMENT OF HEALTH) OR
OPERATED BY THE UNITED STATES, THIS STATE, OR ANY DEPARTMENT, AGENCY,
OR POLITICAL SUBDIVISION OF EITHER;) OR BY A FEMALE UPON HERSELF UPON
THE ADVICE OF THE PHYSICIAN; AND 

"(2) WITHIN (20) WEEKS AFTER THE COMMENCEMENT OF THE PREGNANCY (OR
AFTER (20) WEEKS ONLY IF THE PHYSICIAN HAS REASONABLE CAUSE TO BELIEVE
(I) THERE IS A SUBSTANTIAL RISK THAT CONTINUANCE OF THE PREGNANCY WOULD
ENDANGER THE LIFE OF THE MOTHER OR WOULD GRAVELY IMPAIR THE PHYSICAL OR
MENTAL HEALTH OF THE MOTHER, (II) THAT THE CHILD WOULD BE BORN WITH
GRAVE PHYSICAL OR MENTAL DEFECT, OR (III) THAT THE PREGNANCY RESULTED
FROM RAPE OR INCEST, OR ILLICIT INTERCOURSE WITH A GIRL UNDER THE AGE
OF 16 YEARS). 

"SECTION 2.  (PENALTY.)  ANY PERSON WHO PERFORMS OR PROCURES AN
ABORTION OTHER THAN AUTHORIZED BY THIS ACT IS GUILTY OF A (FELONY) AND,
UPON CONVICTION THEREOF, MAY BE SENTENCED TO PAY A FINE NOT EXCEEDING
($1,000) OR TO IMPRISONMENT (IN THE STATE PENITENTIARY) NOT EXCEEDING
(5 YEARS), OR BOTH. 

"SECTION 3.  (UNIFORMITY OF INTERPRETATION.)  THIS ACT SHALL BE
CONSTRUED TO EFFECTUATE ITS GENERAL PURPOSE TO MAKE UNIFORM THE LAW
WITH RESPECT TO THE SUBJECT OF THIS ACT AMONG THOSE STATES WHICH ENACT
IT. 

"SECTION 4.  (SHORT TITLE.)  THIS ACT MAY BE CITED AS THE UNIFORM
ABORTION ACT. 

"SECTION 5.  (SEVERABILITY.)  IF ANY PROVISION OF THIS ACT OR THE
APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCE IS HELD INVALID, THE
INVALIDITY DOES NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF THIS ACT
WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION,
AND TO THIS END THE PROVISIONS OF THIS ACT ARE SEVERABLE. 

"SECTION 6.  (REPEAL.)  THE FOLLOWING ACTS AND PARTS OF ACTS ARE
REPEALED: 

"(1) 

"(2) 

"(3) 

"SECTION 7.  (TIME OF TAKING EFFECT.)  THIS ACT SHALL TAKE EFFECT--
." 

/41/  "THIS ACT IS BASED LARGELY UPON THE NEW YORK ABORTION ACT
FOLLOWING A REVIEW OF THE MORE RECENT LAWS ON ABORTION IN SEVERAL
STATES AND UPON RECOGNITION OF A MORE LIBERAL TREND IN LAWS ON THIS
SUBJECT.  RECOGNITION WAS GIVEN ALSO TO THE SEVERAL DECISIONS IN STATE
AND FEDERAL COURTS WHICH SHOW A FURTHER TREND TOWARD LIBERALIZATION OF
ABORTION LAWS, ESPECIALLY DURING THE FIRST TRIMESTER OF PREGNANCY. 

"RECOGNIZING THAT A NUMBER OF PROBLEMS APPEARED IN NEW YORK, A
SHORTER TIME PERIOD FOR 'UNLIMITED' ABORTIONS WAS ADVISABLE.  THE TIME
PERIOD WAS BRACKETED TO PERMIT THE VARIOUS STATES TO INSERT A FIGURE
MORE IN KEEPING WITH THE DIFFERENT CONDITIONS THAT MIGHT EXIST AMONG
THE STATES.  LIKEWISE, THE LANGUAGE LIMITING THE PLACE OR PLACES IN
WHICH ABORTIONS MAY BE PERFORMED WAS ALSO BRACKETED TO ACCOUNT FOR
DIFFERENT CONDITIONS AMONG THE STATES.  IN ADDITION, LIMITATIONS ON
ABORTIONS AFTER THE INITIAL 'UNLIMITED' PERIOD WERE PLACED IN BRACKETS
SO THAT INDIVIDUAL STATES MAY ADOPT ALL OR ANY OF THESE REASONS, OR
PLACE FURTHER RESTRICTIONS UPON ABORTIONS AFTER THE INITIAL PERIOD. 
"THIS ACT DOES NOT CONTAIN ANY PROVISION RELATING TO MEDICAL REVIEW
COMMITTEES OR PROHIBITIONS AGAINST SANCTIONS IMPOSED UPON MEDICAL
PERSONNEL REFUSING TO PARTICIPATE IN ABORTIONS BECAUSE OF RELIGIOUS OR
OTHER SIMILAR REASONS, OR THE LIKE.  SUCH PROVISIONS, WHILE RELATED, DO
NOT DIRECTLY PERTAIN TO WHEN, WHERE, OR BY WHOM ABORTIONS MAY BE
PERFORMED; HOWEVER, THE ACT IS NOT DRAFTED TO EXCLUDE SUCH A PROVISION
BY A STATE WISHING TO ENACT THE SAME." 

/42/  SEE, FOR EXAMPLE, YWCA V. KUGLER, 342 F.SUPP.  1048, 1074
(N.J. 1972); ABELE V. MARKLE, 342 F.SUPP.  800, 805-806 (CONN. 1972)
(NEWMAN, J., CONCURRING IN RESULT), APPEAL DOCKETED, NO. 72-56;
WALSINGHAM V. STATE, 250 SO.2D 857, 863 (ERVIN, J., CONCURRING) (FLA.
1971); STATE V. GEDICKE, 43 N.J.L. 86, 90 (1881); MEANS II 381-382. 

/43/  SEE C. HAAGENSEN & W. LLOYD, A HUNDRED YEARS OF MEDICINE 19
(1943). 

/44/  POTTS, POSTCONCEPTIVE CONTROL OF FERTILITY, 8 INT'L J.OF G.&
O. 957, 967 (1970) (ENGLAND AND WALES); ABORTION MORTALITY, 20
MORBIDITY AND MORTALITY 208, 209 (JUNE 12, 1971) (U.S. DEPT. OF HEW,
PUBLIC HEALTH SERVICE) (NEW YORK CITY); TIETZE, UNITED STATES:
THERAPEUTIC ABORTIONS, 1963-1968, 59 STUDIES IN FAMILY PLANNING 5, 7
(1970); TIETZE, MORTALITY WITH CONTRACEPTION AND INDUCED ABORTION, 45
STUDIES IN FAMILY PLANNING 6 (1969) (JAPAN, CZECHOSLOVAKIA, HUNGARY);
TIETZE & LEHFELDT, LEGAL ABORTION IN EASTERN EUROPE, 175 J.A.M.A. 1149,
1152 (APRIL 1961).  OTHER SOURCES ARE DISCUSSED IN LADER 17-23. 

/45/  SEE BRIEF OF AMICUS NATIONAL RIGHT TO LIFE COMMITTEE; R.
DRINAN, THE INVIOLABILITY OF THE RIGHT TO BE BORN, IN ABORTION AND THE
LAW 107 (D. SMITH ED. 1967); LOUISELL, ABORTION, THE PRACTICE OF
MEDICINE AND THE DUE PROCESS OF LAW, 16 U.C.L.A.L.REV.  233 (1969);
NOONAN 1. 

/46/  SEE, E.G., ABELE V. MARKLE, 342 F.SUPP.  800 (CONN. 1972),
APPEAL DOCKETED, NO. 72-56. 

/47/  SEE DISCUSSIONS IN MEANS I AND MEANS II. 

/48/  SEE, E.G., STATE V. MURPHY, 27 N.J.L. 112, 114 (1858). 

/49/  WATSON V. STATE, 9 TEX.APP.  237, 244-245 (1880); MOORE V.
STATE, 37 TEX.CR.R. 552, 561, 40 S.W. 287, 290 (1897); SHAW V. STATE,
73 TEX.CR.R. 337, 339, 165 S.W. 930, 931 (1914); FONDREN V. STATE, 74
TEX.CR.R. 552, 557, 169 S.W. 411, 414 (1914); GRAY V. STATE, 77
TEX.CR.R. 221, 229, 178 S.W. 337, 341 (1915).  THERE IS NO IMMUNITY IN
TEXAS FOR THE FATHER WHO IS NOT MARRIED TO THE MOTHER.  HAMMETT V.
STATE, 84 TEX.CR.R. 635, 209 S.W. 661 (1919); THOMPSON V. STATE (CT.
CRIM. APP. TEX. 1971), APPEAL DOCKETED, NO. 71-1200. 

/50/  SEE SMITH V. STATE, 33 ME.,AT 55; IN RE VINCE, 2 N.J. 443,
450, 67 A.2D 141, 144 (1949).  A SHORT DISCUSSION OF THE MODERN LAW ON
THIS ISSUE IS CONTAINED IN THE COMMENT TO THE ALI'S MODEL PENAL CODE
SEC. 207.11, AT 158 AND NN. 35-37 (TENT.  DRAFT NO. 9, 1959). 

/51/  TR. OF ORAL REARG.  20-21. 

/52/  TR. OF ORAL REARG.  24. 

/53/  WE ARE NOT AWARE THAT IN THE TAKING OF ANY CENSUS UNDER THIS
CLAUSE, A FETUS HAS EVER BEEN COUNTED. 

/54/  WHEN TEXAS URGES THAT A FETUS IS ENTITLED TO FOURTEENTH
AMENDMENT PROTECTION AS A PERSON, IT FACES A DILEMMA.  NEITHER IN TEXAS
NOR IN ANY OTHER STATE ARE ALL ABORTIONS PROHIBITED.  DESPITE BROAD
PROSCRIPTION, AN EXCEPTION ALWAYS EXISTS.  THE EXCEPTION CONTAINED IN
ART. 1196, FOR AN ABORTION PROCURED OR ATTEMPTED BY MEDICAL ADVICE FOR
THE PURPOSE OF SAVING THE LIFE OF THE MOTHER, IS TYPICAL.  BUT IF THE
FETUS IS A PERSON WHO IS NOT TO BE DEPRIVED OF LIFE WITHOUT DUE PROCESS
OF LAW, AND IF THE MOTHER'S CONDITION IS THE SOLE DETERMINANT, DOES NOT
THE TEXAS EXCEPTION APPEAR TO BE OUT OF LINE WITH THE AMENDMENT'S
COMMAND? 

THERE ARE OTHER INCONSISTENCIES BETWEEN FOURTEENTH AMENDMENT STATUS
AND THE TYPICAL ABORTION STATUTE.  IT HAS ALREADY BEEN POINTED OUT, N.
49, SUPRA, THAT IN TEXAS THE WOMAN IS NOT A PRINCIPAL OR AN ACCOMPLICE
WITH RESPECT TO AN ABORTION UPON HER.  IF THE FETUS IS A PERSON, WHY IS
THE WOMAN NOT A PRINCIPAL OR AN ACCOMPLICE?  FURTHER, THE PENALTY FOR
CRIMINAL ABORTION SPECIFIED BY ART. 1195 IS SIGNIFICANTLY LESS THAN THE
MAXIMUM PENALTY FOR MURDER PRESCRIBED BY ART. 1257 OF THE TEXAS PENAL
CODE.  IF THE FETUS IS A PERSON, MAY THE PENALTIES BE DIFFERENT? 

/55/  CF. THE WISCONSIN ABORTION STATUTE, DEFINING "UNBORN CHILD" TO
MEAN "A HUMAN BEING FROM THE TIME OF CONCEPTION UNTIL IT IS BORN
ALIVE," WIS. STAT. SEC. 940.04(6) (1969), AND THE NEW CONNECTICUT
STATUTE, PUB. ACT NO. 1 (MAY 1972 SPECIAL SESSION), DECLARING IT TO BE
THE PUBLIC POLICY OF THE STATE AND THE LEGISLATIVE INTENT "TO PROTECT
AND PRESERVE HUMAN LIFE FROM THE MOMENT OF CONCEPTION." 

/56/  EDELSTEIN 16. 

/57/  LADER 97-99; D. FELDMAN, BIRTH CONTROL IN JEWISH LAW 251-294
(1968).  FOR A STRICTER VIEW, SEE I. JAKOBOVITS, JEWISH VIEWS ON
ABORTION, IN ABORTION AND THE LAW 124 (D. SMITH ED. 1967). 

/58/  AMICUS BRIEF FOR THE AMERICAN ETHICAL UNION ET AL. FOR THE
POSITION OF THE NATIONAL COUNCIL OF CHURCHES AND OF OTHER
DENOMINATIONS, SEE LADER 99-101. 

/59/  L. HELLMAN & J. PRITCHARD, WILLIAMS OBSTETRICS 493 (14TH ED.
1971); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1689 (24TH ED. 1965). 

/60/  HELLMAN & PRITCHARD, SUPRA, N. 59, AT 493. 

/61/  FOR DISCUSSIONS OF THE DEVELOPMENT OF THE ROMAN CATHOLIC
POSITION, SEE D. CALLAHAN, ABORTION:  LAW, CHOICE, AND MORALITY 409-447
(1970); NOONAN 1. 

/62/  SEE BRODIE, THE NEW BIOLOGY AND THE PRENATAL CHILD, 9 J.
FAMILY L. 391, 397 (1970); GORNEY, THE NEW BIOLOGY AND THE FUTURE OF
MAN, 15 U.C.L.A.L.REV.  273 (1968); NOTE; CRIMINAL LAW-- ABORTION-- THE
"MORNING-AFTER PILL" AND OTHER PRE-IMPLANTATION BIRTH-CONTROL METHODS
AND THE LAW, 46 ORE.L.REV.  211 (1967); G. TAYLOR, THE BIOLOGICAL TIME
BOMB 32 (1968); A. ROSENFELD, THE SECOND GENESIS 138-139 (1969); SMITH,
THROUGH A TEST TUBE DARKLY:  ARTIFICIAL INSEMINATION AND THE LAW, 67
MICH.L.REV.  127 (1968); NOTE, ARTIFICIAL INSEMINATION AND THE LAW,
1968 U.ILL.L.F. 203. 

/63/  W. PROSSER, THE LAW OF TORTS 335-338 (4TH ED. 1971); 2 F.
HARPER & F. JAMES, THE LAW OF TORTS 1028-1031 (1956); NOTE, 63
HARV.L.REV.  173 (1949). 

/64/  SEE CASES CITED IN PROSSER, SUPRA, N. 63, AT 336-338;
ANNOTATION, ACTION FOR DEATH OF UNBORN CHILD, 15 A.L.R.3D 992 (1967). 

/65/  PROSSER, SUPRA, N. 63, AT 338; NOTE, THE LAW AND THE UNBORN
CHILD:  THE LEGAL AND LOGICAL INCONSISTENCIES, 46 NOTRE DAME LAW.  349,
354-360 (1971). 

/66/  LOUISELL, ABORTION, THE PRACTICE OF MEDICINE AND THE DUE
PROCESS OF LAW, 16 U.C.L.A.L.REV.  233, 235-238 (1969); NOTE, 56 IOWA
L.REV.  994, 999-1000 (1971); NOTE, THE LAW AND THE UNBORN CHILD, 46
NOTRE DAME LAW.  349, 351-354 (1971). 

/67/  NEITHER IN THIS OPINION NOR IN DOE V. BOLTON, POST, P. 179, DO
WE DISCUSS THE FATHER'S RIGHTS, IF ANY EXIST IN THE CONSTITUTIONAL
CONTEXT, IN THE ABORTION DECISION.  NO PATERNAL RIGHT HAS BEEN ASSERTED
IN EITHER OF THE CASES, AND THE TEXAS AND THE GEORGIA STATUTES ON THEIR
FACE TAKE NO COGNIZANCE OF THE FATHER.  WE ARE AWARE THAT SOME STATUES
RECOGNIZE THE FATHER UNDER CERTAIN CIRCUMSTANCES.  NORTH CAROLINA, FOR
EXAMPLE, N.C. GEN. STAT. SEC. 14-45.1 (SUPP. 1971), REQUIRES WRITTEN
PERMISSION FOR THE ABORTION FROM THE HUSBAND WHEN THE WOMAN IS A
MARRIED MINOR, THAT IS, WHEN SHE IS LESS THAN 18 YEARS OF AGE, 41
N.C.A.G. 489 (1971); IF THE WOMAN IS AN UNMARRIED MINOR, WRITTEN
PERMISSION FROM THE PARENTS IS REQUIRED.  WE NEED NOT NOW DECIDE
WHETHER PROVISIONS OF THIS KIND ARE CONSTITUTIONAL. 

MR. JUSTICE STEWART, CONCURRING. 

IN 1963, THIS COURT, IN FERGUSON V. SKRUPA, 372 U.S. 726, PURPORTED
TO SOUND THE DEATH KNELL FOR THE DOCTRINE OF SUBSTANTIVE DUE PROCESS, A
DOCTRINE UNDER WHICH MANY STATE LAWS HAD IN THE PAST BEEN HELD TO
VIOLATE THE FOURTEENTH AMENDMENT.  AS MR. JUSTICE BLACK'S OPINION FOR
THE COURT IN SKRUPA PUT IT:  "WE HAVE RETURNED TO THE ORIGINAL
CONSTITUTIONAL PROPOSITION THAT COURTS DO NOT SUBSTITUTE THEIR SOCIAL
AND ECONOMIC BELIEFS FOR THE JUDGMENT OF LEGISLATIVE BODIES, WHO ARE
ELECTED TO PASS LAWS."  ID., AT 730.  /1/ 

BARELY TWO YEARS LATER, IN GRISWOLD V. CONNECTICUT, 381 U.S. 479,
THE COURT HELD A CONNECTICUT BIRTH CONTROL LAW UNCONSTITUTIONAL.  IN
VIEW OF WHAT HAD BEEN SO RECENTLY SAID IN SKRUPA, THE COURT'S OPINION
IN GRISWOLD UNDERSTANDABLY DID ITS BEST TO AVOID RELIANCE ON THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AS THE GROUND FOR DECISION. 
YET, THE CONNECTICUT LAW DID NOT VIOLATE ANY PROVISION OF THE BILL OF
RIGHTS, NOR ANY OTHER SPECIFIC PROVISION OF THE CONSTITUTION.  /2/  SO
IT WAS CLEAR TO ME THEN, AND IT IS EQUALLY CLEAR TO ME NOW, THAT THE
GRISWOLD DECISION CAN BE RATIONALLY UNDERSTOOD ONLY AS A HOLDING THAT
THE CONNECTICUT STATUTE SUBSTANTIVELY INVADED THE "LIBERTY" THAT IS
PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  /3/
AS SO UNDERSTOOD, GRISWOLD STANDS AS ONE IN A LONG LINE OF PRE-SKRUPA
CASES DECIDED UNDER THE DOCTRINE OF SUBSTANTIVE DUE PROCESS, AND I NOW
ACCEPT IT AS SUCH. 

"IN A CONSTITUTION FOR A FREE PEOPLE, THERE CAN BE NO DOUBT THAT THE
MEANING OF 'LIBERTY' MUST BE BROAD INDEED."  BOARD OF REGENTS V. ROTH,
408 U.S. 564, 572.  THE CONSTITUTION NOWHERE MENTIONS A SPECIFIC RIGHT
OF PERSONAL CHOICE IN MATTERS OF MARRIAGE AND FAMILY LIFE, BUT THE
"LIBERTY" PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT COVERS MORE THAN THOSE FREEDOMS EXPLICITLY NAMED IN THE BILL
OF RIGHTS.  SEE SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 238
239; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, 534-535; MEYER V.
NEBRASKA, 262 U.S. 390, 399-400.  CF. SHAPIRO V. THOMPSON, 394 U.S.
618, 629-630; UNITED STATES V. GUEST, 383 U.S. 745, 757-758; CARRINGTON
V. RASH, 380 U.S. 89, 96; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500,
505; KENT V. DULLES, 357 U.S. 116, 127; BOLLING V. SHARPE, 347 U.S.
497, 499-500; TRUAX V. RAICH, 239 U.S. 33, 41. 

AS MR. JUSTICE HARLAN ONCE WROTE:  "(THE FULL SCOPE OF THE LIBERTY
GUARANTEED BY THE DUE PROCESS CLAUSE CANNOT BE FOUND IN OR LIMITED BY
THE PRECISE TERMS OF THE SPECIFIC GUARANTEES ELSEWHERE PROVIDED IN THE
CONSTITUTION.  THIS 'LIBERTY' IS NOT A SERIES OF ISOLATED POINTS
PRICKED OUT IN TERMS OF THE TAKING OF PROPERTY; THE FREEDOM OF SPEECH,
PRESS, AND RELIGION; THE RIGHT TO KEEP AND BEAR ARMS; THE FREEDOM FROM
UNREASONABLE SEARCHES AND SEIZURES; AND SO ON.  IT IS A RATIONAL
CONTINUUM WHICH, BROADLY SPEAKING, INCLUDES A FREEDOM FROM ALL
SUBSTANTIAL ARBITRARY IMPOSITIONS AND PURPOSELESS RESTRAINTS . . . AND
WHICH ALSO RECOGNIZES, WHAT A REASONABLE AND SENSITIVE JUDGMENT MUST,
THAT CERTAIN INTERESTS REQUIRE PARTICULARLY CAREFUL SCRUTINY OF THE
STATE NEEDS ASSERTED TO JUSTIFY THEIR ABRIDGMENT."  POE V. ULLMAN, 367
U.S. 497, 543 (OPINION DISSENTING FROM DISMISSAL OF APPEAL) (CITATIONS
OMITTED).  IN THE WORDS OF MR. JUSTICE FRANKFURTHER, "GREAT CONCEPTS
LIKE . . . 'LIBERTY'  . . . WERE PURPOSELY LEFT TO GATHER MEANING FROM
EXPERIENCE.  FOR THEY RELATE TO THE WHOLE DOMAIN OF SOCIAL AND ECONOMIC
FACT, AND THE STATESMEN WHO FOUNDED THIS NATION KNEW TOO WELL THAT ONLY
A STAGNANT SOCIETY REMAINS UNCHANGED."  NATIONAL MUTUAL INS. CO. V.
TIDEWATER TRANSFER CO., 337 U.S. 582, 646 (DISSENTING OPINION). 

SEVERAL DECISIONS OF THIS COURT MAKE CLEAR THAT FREEDOM OF PERSONAL
CHOICE IN MATTERS OF MARRIAGE AND FAMILY LIFE IS ONE OF THE LIBERTIES
PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
LOVING V. VIRGINIA, 388 U.S. 1, 12; GRISWOLD V. CONNECTICUT, SUPRA;
PIERCE V. SOCIETY OF SISTERS, SUPRA; MEYER V. NEBRASKA, SUPRA.  SEE
ALSO PRINCE V. MASSACHUSETTS, 321 U.S. 158, 166; SKINNER V. OKLAHOMA,
316 U.S. 535, 541.  AS RECENTLY AS LAST TERM, IN EISENSTADT V. BAIRD,
405 U.S. 438, 453, WE RECOGNIZED "THE RIGHT OF THE INDIVIDUAL, MARRIED
OR SINGLE, TO BE FREE FROM UNWARRANTED GOVERNMENTAL INTRUSION INTO
MATTERS SO FUNDAMENTALLY AFFECTING A PERSON AS THE DECISION WHETHER TO
BEAR OR BEGET A CHILD."  THAT RIGHT NECESSARILY INCLUDES THE RIGHT OF A
WOMAN TO DECIDE WHETHER OR NOT TO TERMINATE HER PREGNANCY.  "CERTAINLY
THE INTERESTS OF A WOMAN IN GIVING OF HER PHYSICAL AND EMOTIONAL SELF
DURING PREGNANCY AND THE INTERESTS THAT WILL BE AFFECTED THROUGHOUT HER
LIFE BY THE BIRTH AND RAISING OF A CHILD ARE OF A FAR GREATER DEGREE OF
SIGNIFICANCE AND PERSONAL INTIMACY THAN THE RIGHT TO SEND A CHILD TO
PRIVATE SCHOOL PROTECTED IN PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510
(1925), OR THE RIGHT TO TEACH A FOREIGN LANGUAGE PROTECTED IN MEYER V.
NEBRASKA, 262 U.S. 390 (1923)."  ABELE V. MARKLE, 351 F.SUPP.  224, 227
(CONN. 1972). 

CLEARLY, THEREFORE, THE COURT TODAY IS CORRECT IN HOLDING THAT THE
RIGHT ASSERTED BY JANE ROE IS EMBRACED WITHIN THE PERSONAL LIBERTY
PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

IT IS EVIDENT THAT THE TEXAS ABORTION STATUTE INFRINGES THAT RIGHT
DIRECTLY.  INDEED, IT IS DIFFICULT TO IMAGINE A MORE COMPLETE
ABRIDGMENT OF A CONSTITUTIONAL FREEDOM THAN THAT WORKED BY THE
INFLEXIBLE CRIMINAL STATUTE NOW IN FORCE IN TEXAS.  THE QUESTION THEN
BECOMES WHETHER THE STATE INTERESTS ADVANCED TO JUSTIFY THIS ABRIDGMENT
CAN SURVIVE THE "PARTICULARLY CAREFUL SCRUTINY" THAT THE FOURTEENTH
AMENDMENT HERE REQUIRES. 

THE ASSERTED STATE INTERESTS ARE PROTECTION OF THE HEALTH AND SAFETY
OF THE PREGNANT WOMAN, AND PROTECTION OF THE POTENTIAL FUTURE HUMAN
LIFE WITHIN HER.  THESE ARE LEGITIMATE OBJECTIVES, AMPLY SUFFICIENT TO
PERMIT A STATE TO REGULATE ABORTIONS MORE STRINGENTLY OR EVEN TO
PROHIBIT THEM IN THE LATE STAGES OF PREGNANCY.  BUT SUCH LEGISLATION IS
NOT BEFORE US, AND I THINK THE COURT TODAY HAS THOROUGHLY DEMONSTRATED
THAT THESE STATE INTERESTS CANNOT CONSTITUTIONALLY SUPPORT THE BROAD
ABRIDGMENT OF PERSONAL LIBERTY WORKED BY THE EXISTING TEXAS LAW. 
ACCORDINGLY, I JOIN THE COURT'S OPINION HOLDING THAT THAT LAW IS
INVALID UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
/1/  ONLY MR. JUSTICE HARLAN FAILED TO JOIN THE COURT'S OPINION, 372
U.S.,AT 733. 

/2/  THERE IS NO CONSTITUTIONAL RIGHT OF PRIVACY, AS SUCH.  "(THE
FOURTH) AMENDMENT PROTECTS INDIVIDUAL PRIVACY AGAINST CERTAIN KINDS OF
GOVERNMENT INTRUSION, BUT ITS PROTECTIONS GO FURTHER, AND OFTEN HAVE
NOTHING TO DO WITH PRIVACY AT ALL.  OTHER PROVISIONS OF THE
CONSTITUTION PROTECT PERSONAL PRIVACY FROM OTHER FORMS OF GOVERNMENTAL
INVASION.  BUT THE PROTECTION OF A PERSON'S GENERAL RIGHT TO PRIVACY--
HIS RIGHT TO BE LET ALONE BY OTHER PEOPLE-- IS, LIKE THE PROTECTION OF
HIS PROPERTY AND OF HIS VERY LIFE, LEFT LARGELY TO THE LAW OF THE
INDIVIDUAL STATES."  KATZ V. UNITED STATES, 389 U.S. 347, 350-351
(FOOTNOTES OMITTED). 

/3/  THIS WAS ALSO CLEAR TO MR. JUSTICE BLACK, 381 U.S.,AT 507
(DISSENTING OPINION); TO MR. JUSTICE HARLAN, 381 U.S.,AT 499 (OPINION
CONCURRING IN THE JUDGMENT); AND TO MR. JUSTICE WHITE, 381 U.S.,AT 502
(OPINION CONCURRING IN THE JUDGMENT).  SEE ALSO MR. JUSTICE HARLAN'S
THOROUGH AND THOUGHTFUL OPINION DISSENTING FROM DISMISSAL OF THE APPEAL
IN POE V. ULLMAN, 367 U.S. 497, 522. 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE COURT'S OPINION BRINGS TO THE DECISION OF THIS TROUBLING
QUESTION BOTH EXTENSIVE HISTORICAL FACT AND A WEALTH OF LEGAL
SCHOLARSHIP.  WHILE THE OPINION THUS COMMANDS MY RESPECT, I FIND MYSELF
NONETHELESS IN FUNDAMENTAL DISAGREEMENT WITH THOSE PARTS OF IT THAT
INVALIDATE THE TEXAS STATUTE IN QUESTION, AND THEREFORE DISSENT. 

        I 

THE COURT'S OPINION DECIDES THAT A STATE MAY IMPOSE VIRTUALLY NO
RESTRICTION ON THE PERFORMANCE OF ABORTIONS DURING THE FIRST TRIMESTER
OF PREGNANCY.  OUR PREVIOUS DECISIONS INDICATE THAT A NECESSARY
PREDICATE FOR SUCH AN OPINION IS A PLAINTIFF WHO WAS IN HER FIRST
TRIMESTER OF PREGNANCY AT SOME TIME DURING THE PENDENCY OF HER
LAWSUIT.  WHILE A PARTY MAY VINDICATE HIS OWN CONSTITUTIONAL RIGHTS, HE
MAY NOT SEEK VINDICATION FOR THE RIGHTS OF OTHERS.  MOOSE LODGE V.
IRVIS, 407 U.S. 163 (1972); SIERRA CLUB V. MORTON, 405 U.S. 727
(1972).  THE COURT'S STATEMENT OF FACTS IN THIS CASE MAKES CLEAR,
HOWEVER, THAT THE RECORD IN NO WAY INDICATES THE PRESENCE OF SUCH A
PLAINTIFF.  WE KNOW ONLY THAT PLAINTIFF ROE AT THE TIME OF FILING HER
COMPLAINT WAS A PREGNANT WOMAN; FOR AUGHT THAT APPEARS IN THIS RECORD,
SHE MAY HAVE BEEN IN HER LAST TRIMESTER OF PREGNANCY AS OF THE DATE THE
COMPLAINT WAS FILED. 

NOTHING IN THE COURT'S OPINION INDICATES THAT TEXAS MIGHT NOT
CONSTITUTIONALLY APPLY ITS PROSCRIPTION OF ABORTION AS WRITTEN TO A
WOMAN IN THAT STAGE OF PREGNANCY.  NONETHELESS, THE COURT USES HER
COMPLAINT AGAINST THE TEXAS STATUTE AS A FULCRUM FOR DECIDING THAT
STATES MAY IMPOSE VIRTUALLY NO RESTRICTIONS ON MEDICAL ABORTIONS
PERFORMED DURING THE FIRST TRIMESTER OF PREGNANCY.  IN DECIDING SUCH A
HYPOTHETICAL LAWSUIT, THE COURT DEPARTS FROM THE LONGSTANDING
ADMONITION THAT IT SHOULD NEVER "FORMULATE A RULE OF CONSTITUTIONAL LAW
BROADER THAN IS REQUIRED BY THE PRECISE FACTS TO WHICH IT IS TO BE
APPLIED."  LIVERPOOL, NEW YORK & PHILADELPHIA S.S. CO. V. COMMISSIONERS
OF EMIGRATION, 113 U.S. 33, 39 (1885).  SEE ALSO ASHWANDER V. TVA, 297
U.S. 288, 345 (1936) (BRANDEIS, J., CONCURRING). 

II 

EVEN IF THERE WERE A PLAINTIFF IN THIS CASE CAPABLE OF LITIGATING
THE ISSUE WHICH THE COURT DECIDES, I WOULD REACH A CONCLUSION OPPOSITE
TO THAT REACHED BY THE COURT.  I HAVE DIFFICULTY IN CONCLUDING, AS THE
COURT DOES, THAT THE RIGHT OF "PRIVACY" IS INVOLVED IN THIS CASE. 
TEXAS, BY THE STATUTE HERE CHALLENGED, BARS THE PERFORMANCE OF A
MEDICAL ABORTION BY A LICENSED PHYSICIAN ON A PLAINTIFF SUCH AS ROE.  A
TRANSACTION RESULTING IN AN OPERATION SUCH AS THIS IS NOT "PRIVATE" IN
THE ORDINARY USAGE OF THAT WORD.  NOR IS THE "PRIVACY" IN THE ORDINARY
USAGE OF THAT WORD.  NOR IS THE "PRIVACY" THAT THE COURT FINDS HERE
EVEN A DISTANT RELATIVE OF THE FREEDOM FROM SEARCHES AND SEIZURES
PROTECTED BY THE FOURTH AMENDMENT TO THE CONSTITUTION, WHICH THE COURT
HAS REFERRED TO AS EMBODYING A RIGHT TO PRIVACY.  KATZ V. UNITED
STATES, 389 U.S. 347 (1967). 

IF THE COURT MEANS BY THE TERM "PRIVACY" NO MORE THAN THAT THE CLAIM
OF A PERSON TO BE FREE FROM UNWANTED STATE REGULATION OF CONSENSUAL
TRANSACTIONS MAY BE A FORM OF "LIBERTY" PROTECTED BY THE FOURTEENTH
AMENDMENT, THERE IS NO DOUBT THAT SIMILAR CLAIMS HAVE BEEN UPHELD IN
OUR EARLIER DECISIONS ON THE BASIS OF THAT LIBERTY.  I AGREE WITH THE
STATEMENT OF MR. JUSTICE STEWARD IN HIS CONCURRING OPINION THAT THE
"LIBERTY," AGAINST DEPRIVATION OF WHICH WITHOUT DUE PROCESS THE
FOURTEENTH AMENDMENT PROTECTS, EMBRACES MORE THAN THE RIGHTS FOUND IN
THE BILL OF RIGHTS.  BUT THAT LIBERTY IS NOT GUARANTEED ABSOLUTELY
AGAINST DEPRIVATION, ONLY AGAINST DEPRIVATION WITHOUT DUE PROCESS OF
LAW.  THE TEST TRADITIONALLY APPLIED IN THE AREA OF SOCIAL AND ECONOMIC
LEGISLATION IS WHETHER OR NOT A LAW SUCH AS THAT CHALLENGED HAS A
RATIONAL RELATION TO A VALID STATE OBJECTIVE.  WILLIAMSON V. LEE
OPTICAL CO., 348 U.S. 483, 491 (1955).  THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT UNDOUBTEDLY DOES PLACE A LIMIT, ALBEIT A BROAD
ONE, ON LEGISLATIVE POWER TO ENACT LAWS SUCH AS THIS.  IF THE TEXAS
STATUTE WERE TO PROHIBIT AN ABORTION EVEN WHERE THE MOTHER'S LIFE IS IN
JEOPARDY, I HAVE LITTLE DOUBT THAT SUCH A STATUTE WOULD LACK A RATIONAL
RELATION TO A VALID STATE OBJECTIVE UNDER THE TEST STATED IN
WILLIAMSON, SUPRA.  BUT THE COURT'S SWEEPING INVALIDATION OF ANY
RESTRICTIONS ON ABORTION DURING THE FIRST TRIMESTER IS IMPOSSIBLE TO
JUSTIFY UNDER THAT STANDARD, AND THE CONSCIOUS WEIGHING OF COMPETING
FACTORS THAT THE COURT'S OPINION APPARENTLY SUBSTITUTES FOR THE
ESTABLISHED TEST IS FAR MORE APPROPRIATE TO A LEGISLATIVE JUDGMENT THAN
TO A JUDICIAL ONE. 

THE COURT ESCHEWS THE HISTORY OF THE FOURTEENTH AMENDMENT IN ITS
RELIANCE ON THE "COMPELLING STATE INTEREST" TEST.  SEE WEBER V. AETNA
CASUALTY & SURETY CO., 406 U.S. 164, 179 (1972) (DISSENTING OPINION). 
BUT THE COURT ADDS A NEW WRINKLE TO THIS TEST BY TRANSPOSING IT FROM
THE LEGAL CONSIDERATIONS ASSOCIATED WITH THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT TO THIS CASE ARISING UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  UNLESS I MISAPPREHEND THE
CONSEQUENCES OF THIS TRANSPLANTING OF THE "COMPELLING STATE INTEREST
TEST," THE COURT'S OPINION WILL ACCOMPLISH THE SEEMINGLY IMPOSSIBLE
FEAT OF LEAVING THIS AREA OF THE LAW MORE CONFUSED THAN IT FOUND IT. 

WHILE THE COURT'S OPINION QUOTES FROM THE DISSENT OF MR. JUSTICE
HOLMES IN LOCHNER V. NEW YORK, 198 U.S. 45, 74 (1905), THE RESULT IT
REACHES IS MORE CLOSELY ATTUNED TO THE MAJORITY OPINION OF MR. JUSTICE
PECKHAM IN THAT CASE.  AS IN LOCHNER AND SIMILAR CASES APPLYING
SUBSTANTIVE DUE PROCESS STANDARDS TO ECONOMIC AND SOCIAL WELFARE
LEGISLATION, THE ADOPTION OF THE COMPELLING STATE INTEREST STANDARD
WILL INEVITABLY REQUIRE THE COURT TO EXAMINE THE LEGISLATIVE POLICIES
AND PASS ON THE WISDOM OF THESE POLICIES IN THE VERY PROCESS OF
DECIDING WHETHER A PARTICULAR STATE INTEREST PUT FORWARD MAY OR MAY NOT
BE "COMPELLING."  THE DECISION HERE TO BREAK PREGNANCY INTO THREE
DISTINCT TERMS AND TO OUTLINE THE PERMISSIBLE RESTRICTIONS THE STATE
MAY IMPOSE IN EACH ONE, FOR EXAMPLE, PARTAKES MORE OF JUDICIAL
LEGISLATION THAN IT DOES OF A DETERMINATION OF THE INTENT OF THE
DRAFTERS OF THE FOURTEENTH AMENDMENT. 

THE FACT THAT A MAJORITY OF THE STATES REFLECTING, AFTER ALL, THE
MAJORITY SENTIMENT IN THOSE STATES, HAVE HAD RESTRICTIONS ON ABORTIONS
FOR AT LEAST A CENTURY IS A STRONG INDICATION, IT SEEMS TO ME, THAT THE
ASSERTED RIGHT TO AN ABORTION IS NOT "SO ROOTED IN THE TRADITIONS AND
CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS FUNDAMENTAL," SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 105 (1934).  EVEN TODAY, WHEN SOCIETY'S
VIEWS ON ABORTION ARE CHANGING THE VERY EXISTENCE OF THE DEBATE IS
EVIDENCE THAT THE "RIGHT TO AN ABORTION IS NOT SO UNIVERSALLY ACCEPTED
AS THE APPELLANT WOULD HAVE US BELIEVE. 

TO REACH ITS RESULT, THE COURT NECESSARILY HAS HAD TO FIND WITHIN
THE SCOPE OF THE FOURTEENTH AMENDMENT A RIGHT THAT WAS APPARENTLY
COMPLETELY UNKNOWN TO THE DRAFTERS OF THE AMENDMENT.  AS EARLY AS 1821,
THE FIRST STATE LAW DEALING DIRECTLY WITH ABORTION WAS ENACTED BY THE
CONNECTICUT LEGISLATURE.  CONN. STAT., TIT. 22, SECS. 14, 16.  BY THE
TIME OF THE ADOPTION OF THE FOURTEENTH AMENDMENT IN 1868, THERE WERE AT
LEAST 36 LAWS ENACTED BY STATE OR TERRITORIAL LEGISLATURES LIMITING
ABORTION.  /1/  WHILE MANY STATE HAVE AMENDED OR UPDATED THEIR LAWS, 21
OF THE LAWS ON THE BOOKS IN 1868 REMAIN IN EFFECT TODAY.  /2/  INDEED,
THE TEXAS STATUTE STRUCK DOWN TODAY WAS, AS THE MAJORITY NOTES, FIRST
ENACTED IN 1857 AND "HAS REMAINED SUBSTANTIALLY UNCHANGED TO THE
PRESENT TIME."  ANTE, AT 119. 

THERE APPARENTLY WAS NO QUESTION CONCERNING THE VALIDITY OF THIS
PROVISION OR OF ANY OF THE OTHER STATE STATUTES WHEN THE FOURTEENTH
AMENDMENT WAS ADOPTED.  THE ONLY CONCLUSION POSSIBLE FROM THIS HISTORY
IS THAT THE DRAFTERS DID NOT INTEND TO HAVE THE FOURTEENTH AMENDMENT
WITHDRAW FROM THE STATES THE POWER TO LEGISLATE WITH RESPECT TO THIS
MATTER. 

        III 

EVEN IF ONE WERE TO AGREE THAT THE CASE THAT THE COURT DECIDES WERE
HERE, AND THAT THE ENUNCIATION OF THE SUBSTANTIVE CONSTITUTIONAL LAW IN
THE COURT'S OPINION WERE PROPER, THE ACTUAL DISPOSITION OF THE CASE BY
THE COURT IS STILL DIFFICULT TO JUSTIFY.  THE TEXAS STATUTE IS STRUCK
DOWN IN TOTO, EVEN THOUGH THE COURT APPARENTLY CONCEDES THAT AT LATER
PERIODS OF PREGNANCY TEXAS MIGHT IMPOSE THESE SELFSAME STATUTORY
LIMITATIONS ON ABORTION.  MY UNDERSTANDING OF PAS PRACTICE IS THAT A
STATUTE FOUND TO BE INVALID AS APPLIED TO A PARTICULAR PLAINTIFF, BUT
NOT UNCONSTITUTIONAL AS A WHOLE, IS NOT SIMPLY "STRUCK DOWN" BUT IS,
INSTEAD, DECLARED UNCONSTITUTIONAL AS APPLIED TO THE FACT SITUATION
BEFORE THE COURT.  YICK WO V. HOPKINS, 118 U.S. 356 (1886); STREET V.
NEW YORK, 394 U.S. 576 (1969). 

FOR ALL OF THE FOREGOING REASONS, I RESPECTFULLY DISSENT. 

/1/  JURISDICTIONS HAVING ENACTED ABORTION LAWS PRIOR TO THE
ADOPTION OF THE FOURTEENTH AMENDMENT IN 1868: 

1.  ALABAMA-- ALA. ACTS, C. 6, SEC. 2 (1840). 

2.  ARIZONA-- HOWELL CODE, C. 10, SEC. 45 (1865). 

3.  ARKANSAS-- ARK. REV. STAT., C. 44, DIV. III, ART. II, SEC. 6
(1838). 

4.  CALIFORNIA-- CAL. SESS. LAWS, C. 99, SEC. 45, P. 233 (1849
1850). 

5.  COLORADO (TERR.)-- COLO. GEN. LAWS OF TERR.  OF COLO., 1ST
SESS., SEC. 42, PP. 296-297 (1861). 

6.  CONNECTICUT-- CONN. STAT., TIT. 20, SECS. 14, 16 (1821).  BY
1868, THIS STATUTE HAD BEEN REPLACED BY ANOTHER ABORTION LAW.  CONN.
PUB. ACTS, C. 71, SECS. 1, 2, P. 65 (1860). 

7.  FLORIDA-- FLA. ACTS 1ST SESS., C. 1637, SUBC.  3, SECS. 10, 11,
SUBC.  8, SECS. 9, 10, 11 (1868), AS AMENDED, NOW FLA. STAT. ANN. SECS.
782.09, 782.10, 797.01, 797.02, 782.16 (1965). 

8.  GEORGIA-- GA. PEN.  CODE, 4TH DIV., SEC. 20 (1833). 

9.  KINGDOM OF HAWAII-- HAWAII PEN.  CODE, C. 12, SECS. 1, 2, 3
(1850). 

10.  IDAHO (TERR.)-- IDAHO (TERR.)  LAWS, CRIMES AND PUNISHMENTS
SECS. 33, 34, 42, PP. 441, 443 (1863). 

11.  ILLINOIS-- ILL. REV. CRIMINAL CODE SECS. 40, 41, 46, PP. 130,
131 (1827).  BY 1868, THIS STATUTE HAD BEEN REPLACED BY A SUBSEQUENT
ENACTMENT.  ILL. PUB. LAWS SECS. 1, 2, 3, P. 89 (1867). 

12.  INDIANA-- IND. REV. STAT. SECS. 1, 3, P. 224 (1838).  BY 1868
THIS STATUTE HAD BEEN SUPERSEDED BY A SUBSEQUENT ENACTMENT.  IND. LAWS,
C. LXXXI, SEC. 2 (1859). 

13.  IOWA (TERR.)-- IOWA (TERR.)  STAT., 1ST LEGIS., 1ST SESS., SEC.
18, P. 145 (1838).  BY 1868, THIS STATUTE HAD BEEN SUPERSEDED BY A
SUBSEQUENT ENACTMENT.  IOWA (TERR.)  REV.  STAT., C. 49, SECS. 10, 13
(1843). 

14.  KANSAS (TERR.)-- KAN. (TERR.)  STAT., C. 48 SECS. 9, 10, 39
(1855).  KAN. (TERR.)  LAWS, C. 28, SEC. 9, 10, 37 (1859).  4 15. 
LOUISIANA-- LA. REV. STAT., CRIMES AND OFFENSES SEC. 24, P. 138
(1856). 

16.  MAINE-- ME. REV. STAT., C. 160, SECS. 11, 12, 13, 14 (1840). 

17.  MARYLAND-- MD. LAWS, C. 179, SEC. 2, P. 315 (1868). 

18.  MASSACHUSETTS-- MASS. ACTS & RESOLVES, C. 27 (1845). 

19.  MICHIGAN-- MICH. REV. STAT., C. 153 SECS. 32, 33, 34, P. 662
(1846). 

20.  MINNESOTA (TERR.)-- MINN. (TERR.)  REV.  STAT., C. 100, SECS.
10, 11, P. 493 (1851). 

21.  MISSISSIPPI-- MISS.  CODE, C. 64, SECS. 8, 9, P. 958 (1848). 

22.  MISSOURI-- MO. REV. STAT., ART. II, SECS. 9, 10, 36, PP. 168,
172 (1835). 

23.  MONTANA (TERR.)-- MONT. (TERR.)  LAWS, CRIMINAL PRACTICE ACTS
SEC. 41, P. 184 (1864). 

24.  NEVADA (TERR.)  -- NEV. (TERR.)  LAWS, C. 28, SEC. 42, P. 63
(1861). 

25.  NEW HAMPSHIRE-- N.H. LAWS, C. 743, SEC. 1, P. 708 (1848). 

26.  NEW JERSEY-- N.J. LAWS, P. 266 (1849). 

27.  NEW YORK-- N.Y. REV. STAT., PT. 4, C. 1, TIT. 2, SECS.8, 9, PP.
12-13 (1828).  BY 1868, THIS STATUTE HAD BEEN SUPERSEDED.  N.Y. LAWS,
C. 260, SECS. 1-6, PP. 285-286 (1845); N.Y. LAWS, C. 22, SEC. 1 P. 19
(1846). 

28.  OHIO-- OHIO GEN. STAT. SECS. 111(1), 112(2), P. 252 (1841). 

29.  OREGON-- ORE.  GEN.  LAWS, CRIM. CODE, C. 43, SEC. 509,P. 528
(1845-1864). 

30.  PENNSYLVANIA-- PA. LAWS NO. 374, SECS. 87, 88, 89 (1860). 

31.  TEXAS-- TEX. GEN. STAT. DIG., C. VII, ARTS. 531-536, P. 524
(OLDHAM & WHITE 1859). 

32.  VERMONT-- VT. ACTS NO. 33, SEC. 1 (1846).  BY 1868, THIS
STATUTE HAD BEEN AMENDED.  VT. ACTS.  NO. 57, SECS. 1, 3 (1867). 

33.  VIRGINIA-- VA. ACTS, TIT. II, C. 3, SEC. 9, P. 96 (1848). 

34.  WASHINGTON (TERR.)-- WASH. (TERR.)  STATS., C. II, SECS. 37,
38, P. 81 (1854).     35.  WEST VIRGINIA-- SEE VA. ACTS., TIT. II, C.
3, SEC. 9, P. 96 (1848); W.VA. CONST., ART. XI, PAR. 8 (1863). 

36.  WISCONSIN-- WIS. REV. STAT., C. 133, SECS. 10, 11 (1849).  BY
1868, THIS STATUTE HAD BEEN SUPERSEDED.  WIS. REV. STAT., C. 164, SECS.
10, 11; C. 169, SECS. 58, 59 (1858). 

/2/  ABORTION LAWS IN EFFECT IN 1868 AND STILL APPLICABLE AS OF
AUGUST 1970: 

1.  ARIZONA (1865). 

2.  CONNECTICUT (1860). 

3.  FLORIDA (1868).     4.  IDAHO (1863). 

5.  INDIANA (1838). 

6.  IOWA (1843. 

7.  MAINE (1840). 

8.  MASSACHUSETTS (1845). 

9.  MICHIGAN (1846). 

10.  MINNESOTA (1851). 

11.  MISSOURI (1835). 

12.  MONTANA (1864). 

13.  NEVADA (1861). 

14.  NEW HAMPSHIRE (1848). 

15.  NEW JERSEY (1849). 

16.  OHIO (1841). 

17.  PENNSYLVANIA (1860). 

18.  TEXAS (1859). 

19.  VERMONT (1867). 

20.  WEST VIRGINIA (1863). 

21.  WISCONSIN (1858). 

SARAH WEDDINGTON REARGUED THE CAUSE FOR APPELLANTS.  WITH HER ON THE
BRIEFS WERE ROY LUCAS, FRED BRUNER, ROY L. MERRILL, JR., AND NORMAN
DORSEN. 

ROBERT C. FLOWERS, ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED THE
CAUSE FOR APPELLEE ON THE REARGUMENT.  JAY FLOYD, ASSISTANT ATTORNEY
GENERAL, ARGUED THE CAUSE FOR APPELLEE ON THE ORIGINAL ARGUMENT.  WITH
THEM ON THE BRIEF WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL, NOLA
WHITE, FIRST ASSISTANT ATTORNEY GENERAL, ALFRED WALKER, EXECUTIVE
ASSISTANT ATTORNEY GENERAL, HENRY WADE, AND JOHN B. TOLLE.  /0/
..END :





DOE V. BOLTON, 410 U.S. 179 


       DOE ET AL. V. BOLTON, ATTORNEY GENERAL OF GEORGIA, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA

  NO. 70-40.  ARGUED DECEMBER 13, 1971-- REARGUED OCTOBER 11,

           1972-- DECIDED JANUARY 22, 1973 


GEORGIA LAW PROSCRIBES AN ABORTION EXCEPT AS PERFORMED BY A DULY
LICENSED GEORGIA PHYSICIAN WHEN NECESSARY IN "HIS BEST CLINICAL
JUDGMENT" BECAUSE CONTINUED PREGNANCY WOULD ENDANGER A PREGNANT WOMAN'S
LIFE OR INJURE HER HEALTH; THE FETUS WOULD LIKELY BE BORN WITH A
SERIOUS DEFECT; OR THE PREGNANCY RESULTED FROM RAPE.  SEC. 26-1202(A)
OF GA. CRIMINAL CODE.  IN ADDITION TO A REQUIREMENT THAT THE PATIENT BE
A GEORGIA RESIDENT AND CERTAIN OTHER REQUIREMENTS, THE STATUTORY SCHEME
POSES THREE PROCEDURAL CONDITIONS IN SEC. 26-1202(B):  (1) THAT THE
ABORTION BE PERFORMED IN A HOSPITAL ACCREDITED BY THE JOINT COMMISSION
ON ACCREDITATION OF HOSPITALS (JCAH); (2) THAT THE PROCEDURE BE
APPROVED BY THE HOSPITAL STAFF ABORTION COMMITTEE; AND (3) THAT THE
PERFORMING PHYSICIAN'S JUDGMENT BE CONFIRMED BY INDEPENDENT EXAMINATION
OF THE PATIENT BY TWO OTHER LICENSED PHYSICIANS.  APPELLANT DOE, AN
INDIGENT MARRIED GEORGIA CITIZEN, WHO WAS DENIED AN ABORTION AFTER
EIGHT WEEKS OF PREGNANCY FOR FAILURE TO MEET ANY OF THE SEC.26-1202(A)
CONDITIONS, SOUGHT DECLARATORY AND INJUNCTIVE RELIEF, CONTENDING THAT
THE GEORGIA LAWS WERE UNCONSTITUTIONAL.  OTHERS JOINING IN THE
COMPLAINT INCLUDED GEORGIA-LICENSED PHYSICIANS (WHO CLAIMED THAT THE
GEORGIA STATUTES "CHILLED AND DETERRED" THEIR PRACTICES), REGISTERED
NURSES, CLERGYMEN, AND SOCIAL WORKERS.  THOUGH HOLDING THAT ALL THE
PLAINTIFFS HAD STANDING, THE DISTRICT COURT RULED THAT ONLY DOE
PRESENTED A JUSTICIABLE CONTROVERSY.  IN DOE'S CASE THE COURT GAVE
DECLARATORY, BUT NOT INJUNCTIVE, RELIEF, INVALIDATING AS AN
INFRINGEMENT OF PRIVACY AND PERSONAL LIBERTY THE LIMITATION TO THE
THREE SITUATIONS SPECIFIED IN SEC. 26-1202(A) AND CERTAIN OTHER
PROVISIONS BUT HOLDING THAT THE STATE'S INTEREST IN HEALTH PROTECTION
AND THE EXISTENCE OF A "POTENTIAL OF INDEPENDENT HUMAN EXISTENCE"
JUSTIFIED REGULATION THROUGH SEC. 26-1202(B) OF THE "MANNER OF
PERFORMANCE AS WELL AS THE QUALITY OF THE FINAL DECISION TO ABORT." 
THE APPELLANTS, CLAIMING ENTITLEMENT TO BROADER RELIEF, DIRECTLY
APPEALED TO THIS COURT.  HELD: 

1.  DOE'S CASE PRESENTS A LIVE, JUSTICIABLE CONTROVERSY AND SHE HAS
STANDING TO SUE, ROE V. WADE, ANTE, P. 113, AS DO THE PHYSICIAN
APPELLANTS (WHO, UNLIKE THE PHYSICIAN IN WADE, WERE NOT CHARGED WITH
ABORTION VIOLATIONS), AND IT IS THEREFORE UNNECESSARY TO RESOLVE THE
ISSUE OF THE OTHER APPELLANTS' STANDING.  PP. 187-189. 

2.  A WOMAN'S CONSTITUTIONAL RIGHT TO AN ABORTION IS NOT ABSOLUTE. 
ROE V. WADE, SUPRA.  P. 189. 

3.  THE REQUIREMENT THAT A PHYSICIAN'S DECISION TO PERFORM AN
ABORTION MUST REST UPON "HIS BEST CLINICAL JUDGMENT" OF ITS NECESSITY
IS NOT UNCONSTITUTIONALLY VAGUE, SINCE THAT JUDGMENT MAY BE MADE IN THE
LIGHT OF ALL THE ATTENDANT CIRCUMSTANCES.  UNITED STATES V. VUITCH, 402
U.S. 62, 71-72.  PP. 191-192. 

4.  THE THREE PROCEDURAL CONDITIONS IN SEC. 26-1202(B) VIOLATE THE
FOURTEENTH AMENDMENT.  PP. 192-200. 

(A) THE JCAH-ACCREDITATION REQUIREMENT IS INVALID, SINCE THE STATE
HAS NOT SHOWN THAT ONLY HOSPITALS (LET ALONE THOSE WITH JCAH
ACCREDITATION) MEET ITS INTEREST IN FULLY PROTECTING THE PATIENT; AND A
HOSPITAL REQUIREMENT FAILING TO EXCLUDE THE FIRST TRIMESTER OF
PREGNANCY WOULD BE INVALID ON THAT GROUND ALONE, SEE ROE V. WADE,
SUPRA.  PP. 193-195. 

(B) THE INTERPOSITION OF A HOSPITAL COMMITTEE ON ABORTION, A
PROCEDURE NOT APPLICABLE AS A MATTER OF STATE CRIMINAL LAW TO OTHER
SURGICAL SITUATIONS, IS UNDULY RESTRICTIVE OF THE PATIENT'S RIGHTS,
WHICH ARE ALREADY SAFEGUARDED BY HER PERSONAL PHYSICIAN.  PP. 195-198. 

(C) REQUIRED ACQUIESCENCE BY TWO COPRACTITIONERS ALSO HAS NO
RATIONAL CONNECTION WITH A PATIENT'S NEEDS AND UNDULY INFRINGES ON HER
PHYSICIAN'S RIGHT TO PRACTICE.  PP. 198-200. 

5.  THE GEORGIA RESIDENCE REQUIREMENT VIOLATES THE PRIVILEGES AND
IMMUNITIES CLAUSE BY DENYING PROTECTION TO PERSONS WHO ENTER GEORGIA
FOR MEDICAL SERVICES THERE.  P. 200. 

6.  APPELLANTS' EQUAL PROTECTION ARGUMENT CENTERING ON THE THREE
PROCEDURAL CONDITIONS IN SEC. 26-1202(B), INVALIDATED ON OTHER GROUNDS,
IS WITHOUT MERIT.  PP. 200-201. 

7.  NO RULING IS MADE ON THE QUESTION OF INJUNCTIVE RELIEF.  CF. ROE
V. WADE, SUPRA.  P. 201. 

319 F.SUPP.  1048, MODIFIED AND AFFIRMED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, BRENNAN, STEWART, MARSHALL, AND POWELL, JJ.,
JOINED.  BURGER, C.J., POST, P. 207, AND DOUGLAS, J., POST, P. 209,
FILED CONCURRING OPINIONS.  WHITE, J., FILED A DISSENTING OPINION IN
WHICH REHNQUIST, J., JOINED, POST, P. 221.  REHNQUIST, J., FILED A
DISSENTING OPINION, POST, P. 223. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

IN THIS APPEAL, THE CRIMINAL ABORTION STATUTES RECENTLY ENACTED IN
GEORGIA ARE CHALLENGED ON CONSTITUTIONAL GROUNDS.  THE STATUTES ARE
SECS. 26-1201 THROUGH 26-1203 OF THE STATE'S CRIMINAL CODE, FORMULATED
BY GEORGIA LAWS, 1968 SESSION, PP. 1249, 1277-1280.  IN ROE V. WADE,
ANTE, P. 113, WE TODAY HAVE STRUCK DOWN, AS CONSTITUTIONALLY DEFECTIVE,
THE TEXAS CRIMINAL ABORTION STATUTES THAT ARE REPRESENTATIVE OF
PROVISIONS LONG IN EFFECT IN A MAJORITY OF OUR STATES.  THE GEORGIA
LEGISLATION, HOWEVER, IS DIFFERENT AND MERITS SEPARATE CONSIDERATION. 

        I 

THE STATUTES IN QUESTION ARE REPRODUCED AS APPENDIX A, POST, P.
202.  /1/  AS THE APPELLANTS ACKNOWLEDGE, /2/  THE 1968 STATUTES ARE
PATTERNED UPON THE AMERICAN LAW INSTITUTE'S MODEL PENAL CODE, SEC.
230.3 (PROPOSED OFFICIAL DRAFT, 1962), REPRODUCED AS APPENDIX B, POST,
P. 205.  THE ALI PROPOSAL HAS SERVED AS THE MODEL FOR RECENT
LEGISLATION IN APPROXIMATELY ONE-FOURTH OF OUR STATES.  /3/  THE NEW
GEORGIA PROVISIONS REPLACED STATUTORY LAW THAT HAD BEEN IN EFFECT FOR
MORE THAN 90 YEARS.  GEORGIA LAWS 1876, NO. 103, SEC. 2, AT 113.  /4/
THE PREDECESSOR STATUTE PARALLELED THE TEXAS LEGISLATION CONSIDERED IN
ROE V. WADE, SUPRA, AND MADE ALL ABORTIONS CRIMINAL EXCEPT THOSE
NECESSARY "TO PRESERVE THE LIFE" OF THE PREGNANT WOMAN.  THE NEW
STATUTES HAVE NOT BEEN TESTED ON CONSTITUTIONAL GROUNDS IN THE GEORGIA
STATE COURTS. 

CRIME, AND SEC. 26-1203 PROVIDES THAT A PERSON CONVICTED OF THAT CRIME
SHALL BE PUNISHED BY IMPRISONMENT FOR NOT LESS THAN ONE NOR MORE THAN
10 YEARS.  SECTION 26-1202(A) STATES THE EXCEPTION AND REMOVES FROM
SEC. 1201'S DEFINITION OF CRIMINAL ABORTION, AND THUS MAKES
NONCRIMINAL, AN ABORTION "PERFORMED BY A PHYSICIAN DULY LICENSED" IN
GEORGIA WHEN, "BASED UPON HIS BEST CLINICAL JUDGMENT . . . AN ABORTION
IS NECESSARY BECAUSE: 

     "(1) A CONTINUATION OF THE PREGNANCY WOULD ENDANGER THE LIFE
OF

  THE PREGNANT WOMAN OR WOULD SERIOUSLY AND PERMANENTLY INJURE HER

  HEALTH; OR 

     "(2) THE FETUS WOULD VERY LIKELY BE BORN WITH A GRACE,

  PERMANENT, AND IRREMEDIABLE MENTAL OR PHYSICAL DEFECT; OR 

"(3) THE PREGNANCY RESULTED FROM FORCIBLE OR STATUTORY RAPE."  /5/
SUBSECTION (B), THAT, FOR AN ABORTION TO BE AUTHORIZED OR PERFORMED AS
A NONCRIMINAL PROCEDURE, ADDITIONAL CONDITIONS MUST BE FULFILLED. 
THESE ARE (1) AND (2) RESIDENCE OF THE WOMAN IN GEORGIA; (3) REDUCTION
TO WRITING OF THE PERFORMING PHYSICIAN'S MEDICAL JUDGMENT THAT AN
ABORTION IS JUSTIFIED FOR ONE OR MORE OF THE REASONS SPECIFIED BY SEC.
26-1202(A), WITH WRITTEN CONCURRENCE IN THAT JUDGMENT BY AT LEAST TWO
OTHER GEORGIA-LICENSED PHYSICIANS, BASED UPON THEIR SEPARATE PERSONAL
MEDICAL EXAMINATIONS OF THE WOMAN; (4) PERFORMANCE OF THE ABORTION IN A
HOSPITAL LICENSED BY THE STATE BOARD OF HEALTH AND ALSO ACCREDITED BY
THE JOINT COMMISSION ON ACCREDITATIONS OF HOSPITALS; (5) ADVANCE
APPROVAL BY AN ABORTION COMMITTEE OF NOT LESS THAN THREE MEMBERS OF THE
HOSPITAL'S STAFF; (6) CERTIFICATIONS IN A RAPE SITUATION; AND (7), (8),
AND (9) MAINTENANCE AND CONFIDENTIALITY OF RECORDS.  THERE IS A
PROVISION (SUBSECTION (C)) FOR JUDICIAL DETERMINATION OF THE LEGALITY
OF A PROPOSED ABORTION ON PETITION OF THE JUDICIAL CIRCUIT LAW OFFICER
OR OF A CLOSE RELATIVE, AS THEREIN DEFINED, OF THE UNBORN CHILD, AND
FOR EXPEDITIOUS HEARING OF THAT PETITION.  THERE IS ALSO A PROVISION
(SUBSECTION (E)) GIVING A HOSPITAL THE RIGHT NOT TO ADMIT AN ABORTION
PATIENT AND GIVING ANY PHYSICIAN AND ANY HOSPITAL EMPLOYEE OR STAFF
MEMBER THE RIGHT, ON MORAL OR RELIGIOUS GROUNDS, NOT TO PARTICIPATE IN
THE PROCEDURE. 

        II 

ON APRIL 16, 1970, MARY DOE, /6/  23 OTHER INDIVIDUALS (NINE
DESCRIBED AS GEORGIA-LICENSED PHYSICIANS, SEVEN AS NURSES REGISTERED IN
THE STATE, FIVE AS CLERGYMEN, AND TWO AS SOCIAL WORKERS), AND TWO
NONPROFIT GEORGIA CORPORATIONS THAT ADVOCATE ABORTION REFORM INSTITUTED
THIS FEDERAL ACTION IN THE NORTHERN DISTRICT OF GEORGIA AGAINST THE
STATE'S ATTORNEY GENERAL, THE DISTRICT ATTORNEY OF FULTON COUNTY, AND
THE CHIEF OF POLICE OF THE CITY OF ATLANTA.  THE PLAINTIFFS SOUGHT A
DECLARATORY JUDGMENT THAT THE GEORGIA ABORTION STATUTES WERE
UNCONSTITUTIONAL IN THEIR ENTIRETY.  THEY ALSO SOUGHT INJUNCTIVE RELIEF
RESTRAINING THE DEFENDANTS AND THEIR SUCCESSORS FROM ENFORCING THE
STATUTES. 

MARY DOE ALLEGED: 

(1) SHE WAS A 22-YEAR-OLD GEORGIA CITIZEN, MARRIED, AND NINE WEEKS
PREGNANT.  SHE HAD THREE LIVING CHILDREN.  THE TWO OLDER ONES HAD BEEN
PLACED IN A FOSTER HOME BECAUSE OF DOE'S POVERTY AND INABILITY TO CARE
FOR THEM.  THE YOUNGEST, BORN JULY 19, 1969, HAD BEEN PLACED FOR
ADOPTION.  HER HUSBAND HAD RECENTLY ABANDONED HER AND SHE WAS FORCED TO
LIVE WITH HER INDIGENT PARENTS AND THEIR EIGHT CHILDREN.  SHE AND HER
HUSBAND, HOWEVER, HAD BECOME RECONCILED.  HE WAS A CONSTRUCTION WORKER
EMPLOYED ONLY SPORADICALLY.  SHE HAD BEEN A MENTAL PATIENT AT THE STATE
HOSPITAL.  SHE HAD BEEN ADVISED THAT AN ABORTION COULD BE PERFORMED ON
HER WITH LESS DANGER TO HER HEALTH THAN IF SHE GAVE BIRTH TO THE CHILD
SHE WAS CARRYING.  SHE WOULD BE UNABLE TO CARE OR SUPPORT THE NEW
CHILD. 

(2) ON MARCH 25, 1970, SHE APPLIED TO THE ABORTION COMMITTEE OF
GRADY MEMORIAL HOSPITAL, ATLANTA, FOR A THERAPEUTIC ABORTION UNDER SEC.
26-1202.  HER APPLICATION WAS DENIED 16 DAYS LATER, ON APRIL 10, WHEN
SHE WAS EIGHT WEEKS PREGNANT, ON THE GROUND THAT HER SITUATION WAS NOT
ONE DESCRIBED IN SEC. 26-1202(A).  /7/ 

(3) BECAUSE HER APPLICATION WAS DENIED, SHE WAS FORCED EITHER TO
RELINQUISH "HER RIGHT TO DECIDE WHEN AND HOW MANY CHILDREN SHE WILL
BEAR" OR TO SEEK AN ABORTION THAT WAS ILLEGAL UNDER THE GEORGIA
STATUTES.  THIS INVADED HER RIGHTS OF PRIVACY AND LIBERTY IN MATTERS
RELATED TO FAMILY, MARRIAGE, AND SEX, AND DEPRIVED HER OF THE RIGHT TO
CHOOSE WHETHER TO BEAR CHILDREN.  THIS WAS A VIOLATION OF RIGHTS
GUARANTEED HER BY THE FIRST, FOURTH, FIFTH, NINTH, AND FOURTEENTH
AMENDMENTS.  THE STATUTES ALSO DENIED HER EQUAL PROTECTION AND
PROCEDURAL DUE PROCESS AND, BECAUSE THEY WERE UNCONSTITUTIONALLY VAGUE,
DETERRED HOSPITALS AND DOCTORS FROM PERFORMING ABORTIONS.  SHE SUED "ON
HER OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED." 

THE OTHER PLAINTIFFS ALLEGED THAT THE GEORGIA STATUTES "CHILLED AND
DETERRED" THEM FROM PRACTICING THEIR RESPECTIVE PROFESSIONS AND
DEPRIVED THEM OF RIGHTS GUARANTEED BY THE FIRST, FOURTH, AND FOURTEENTH
AMENDMENTS.  THESE PLAINTIFFS ALSO PURPORTED TO SUE ON THEIR OWN BEHALF
AND ON BEHALF OF OTHERS SIMILARLY SITUATED. 

A THREE-JUDGE DISTRICT COURT WAS CONVENED.  AN OFFER OF PROOF AS TO
DOE'S IDENTITY WAS MADE, BUT THE COURT DEEMED IT UNNECESSARY TO RECEIVE
THAT PROOF.  THE CASE WAS THEN TRIED ON THE PLEADINGS AND
INTERROGATORIES. 

THE DISTRICT COURT, PER CURIAM, 319 F.SUPP.  1048 (ND GA. 1970), HELD
THAT ALL THE PLAINTIFFS HAD STANDING BUT THAT ONLY DOE PRESENTED A
JUSTICIABLE CONTROVERSY.  ON THE MERITS, THE COURT CONCLUDED THAT THE
LIMITATION IN THE GEORGIA STATUTE OF THE "NUMBER OF REASONS FOR WHICH
AN ABORTION MAY BE SOUGHT," ID., AT 1056, IMPROPERLY RESTRICTED DOE'S
RIGHTS OF PRIVACY ARTICULATED IN GRISWOLD V. CONNECTICUT, 381 U.S. 479
(1965), AND OF "PERSONAL LIBERTY," BOTH OF WHICH IT THOUGHT "BROAD
ENOUGH TO INCLUDE THE DECISION TO ABORT A PREGNANCY," 319 F.SUPP.,AT
1055.  AS A CONSEQUENCE, THE COURT HELD INVALID THOSE PORTIONS OF SECS.
26-1202(A) AND (B)(3) LIMITING LEGAL ABORTIONS TO THE THREE SITUATIONS
SPECIFIED; SEC. 26-1202(B)(6) RELATING TO CERTIFICATIONS IN A RAPE
SITUATION; AND SEC. 26-1202(C) AUTHORIZING A COURT TEST.  DECLARATORY
RELIEF WAS GRANTED ACCORDINGLY.  THE COURT, HOWEVER, HELD THAT
GEORGIA'S INTEREST IN PROTECTION OF HEALTH, AND THE EXISTENCE OF A
"POTENTIAL OF INDEPENDENT HUMAN EXISTENCE", ID., AT 1055, JUSTIFIED
STATE REGULATION OF "THE MANNER OF PERFORMANCE AS WELL AS THE QUALITY
OF THE FINAL DECISION TO ABORT," ID., AT 1056, AND IT REFUSED TO STRIKE
DOWN THE OTHER PROVISIONS OF THE STATUTES.  IT DENIED THE REQUEST FOR
AN INJUNCTION, ID., AT 1057. 

CLAIMING THAT THEY WERE ENTITLED TO AN INJUNCTION AND TO BROADER
RELIEF, THE PLAINTIFFS TOOK A DIRECT APPEAL PURSUANT TO 28 U.S.C.
1253.  WE POSTPONED DECISION ON JURISDICTION TO THE HEARING ON THE
MERITS.  402 U.S. 941 (1971).  THE DEFENDANTS ALSO PURPORTED TO APPEAL,
PURSUANT TO SEC. 1253, BUT THEIR APPEAL WAS DISMISSED FOR WANT OF
JURISDICTION.  402 U.S. 936 (1971).  WE ARE ADVISED BY THE APPELLEES,
BRIEF 42, THAT AN ALTERNATIVE APPEAL ON THEIR PART IS PENDING IN THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.  THE EXTENT,
THEREFORE, TO WHICH THE DISTRICT COURT DECISION WAS ADVERSE TO THE
DEFENDANTS, THAT IS, THE EXTENT TO WHICH PORTIONS OF THE GEORGIA
STATUTES WERE HELD TO BE UNCONSTITUTIONAL, TECHNICALLY IS NOT NOW
BEFORE US.  /8/  SWARB V. LENNOX, 405 U.S. 191, 201 (1972). 

        III 

OUR DECISION IN ROE V. WADE, ANTE, P. 113, ESTABLISHES (1) THAT,
DESPITE HER PSEUDONYM, WE MAY ACCEPT AS TRUE, FOR THIS CASE, MARY DOE'S
EXISTENCE AND HER PREGNANT STATE ON APRIL 16, 1970; (2) THAT THE
CONSTITUTIONAL ISSUE IS SUBSTANTIAL; (3) THAT THE INTERIM TERMINATION
OF DOE'S AND ALL OTHER GEORGIA PREGNANCIES IN EXISTENCE IN 1970 HAS NOT
RENDERED THE CASE MOOT; AND (4) THAT DOE PRESENTS A JUSTICIABLE
CONTROVERSY AND HAS STANDING TO MAINTAIN THE ACTION. 

INASMUCH AS DOE AND HER CLASS ARE RECOGNIZED, THE QUESTION WHETHER
THE OTHER APPELLANTS-- PHYSICIANS, NURSES, CLERGYMEN, SOCIAL WORKERS,
AND CORPORATION-- PRESENT A JUSTICIABLE CONTROVERSY AND HAVE STANDING
IS PERHAPS A MATTER OF NO GREAT CONSEQUENCE.  WE CONCLUDE, HOWEVER,
THAT THE PHYSICIAN-APPELLANTS, WHO ARE GEORGIA-LICENSED DOCTORS
CONSULTED BY PREGNANT WOMEN, ALSO PRESENT A JUSTICIABLE CONTROVERSY AND
DO HAVE STANDING DESPITE THE FACT THAT THE RECORD DOES NOT DISCLOSE
THAT ANY ONE OF THEM HAS BEEN PROSECUTED, OR THREATENED WITH
PROSECUTION, FOR VIOLATION OF THE STATE'S ABORTION STATUTES.  THE
PHYSICIAN IS THE ONE AGAINST WHOM THESE CRIMINAL STATUTES DIRECTLY
OPERATE IN THE EVENT HE PROCURES AN ABORTION THAT DOES NOT MEET THE
STATUTORY EXCEPTIONS AND CONDITIONS.  THE PHYSICIAN-APPELLANTS,
THEREFORE, ASSERT A SUFFICIENTLY DIRECT THREAT OF PERSONAL DETRIMENT. 
THEY SHOULD NOT BE REQUIRED TO AWAIT AND UNDERGO A CRIMINAL PROSECUTION
AS THE SOLE MEANS OF SEEKING RELIEF.  CROSSEN V. BRECKENRIDGE, 446 F.2D
833, 839-840 (CA6 1971); POE V. MENGHINI, 339 F.SUPP.  986, 990-991
(KAN. 1972). 

IN HOLDING THAT THE PHYSICIANS, WHILE THEORETICALLY POSSESSED OF
STANDING, DID NOT PRESENT A JUSTICIABLE CONTROVERSY, THE DISTRICT COURT
SEEMS TO HAVE RELIEF PRIMARILY ON POE V. ULLMAN, 367 U.S. 497 (1961). 
THERE, A SHARPLY DIVIDED COURT DISMISSED AN APPEAL FROM A STATE COURT
ON THE GROUND THAT IT PRESENTED NO REAL CONTROVERSY JUSTIFYING THE
ADJUDICATION OF A CONSTITUTIONAL ISSUE.  BUT THE CHALLENGED CONNECTICUT
STATUTE, DEEMED TO PROHIBIT THE GIVING OF MEDICAL ADVICE ON THE USE OF
CONTRACEPTIVES, HAD BEEN ENACTED IN 1879, AND, APPARENTLY WITH A SINGLE
EXCEPTION, NO ONE HAD EVER BEEN PROSECUTED UNDER IT.  GEORGIA'S
STATUTE, IN CONTRAST, IS RECENT AND NOT MORIBUND.  FURTHERMORE, IT IS
THE SUCCESSOR TO ANOTHER GEORGIA ABORTION STATUTE UNDER WHICH WE ARE
TOLD, /9/  PHYSICIANS WERE PROSECUTED.  THE PRESENT CASE, THEREFORE, IS
CLOSER TO EPPERSON V. ARKANSAS, 393 U.S. 97 (1968), WHERE THE COURT
RECOGNIZED THE RIGHT OF A SCHOOL TEACHER, THOUGH NOT YET CHARGED
CRIMINALLY, TO CHALLENGE HER STATE'S ANTI-EVOLUTION STATUTE.  SEE ALSO
GRISWOLD V. CONNECTICUT, 381 U.S.,AT 481. 

THE PARALLEL CLAIMS OF THE NURSE, CLERGY, SOCIAL WORKER, AND
CORPORATION-APPELLANTS ARE ANOTHER STEP REMOVED AND AS TO THEM, THE
GEORGIA STATUTES OPERATE LESS DIRECTLY.  NOT BEING LICENSED PHYSICIANS,
THE NURSES AND THE OTHERS ARE IN NO POSITION TO RENDER MEDICAL ADVICE. 
THEY WOULD BE REACHED BY THE ABORTION STATUTES ONLY IN THEIR CAPACITY
AS ACCESSORIES OR AS COUNSELOR-CONSPIRATORS.  WE CONCLUDE THAT WE NEED
NOT PASS UPON THE STATUS OF THESE ADDITIONAL APPELLANTS IN THIS SUIT,
FOR THE ISSUES ARE SUFFICIENTLY AND ADEQUATELY PRESENTED BY DOE AND THE
PHYSICIAN-APPELLANTS, AND NOTHING IS GAINED OR LOST BY THE PRESENCE OR
ABSENCE OF THE NURSES, THE CLERGYMEN, THE SOCIAL WORKERS, AND THE
CORPORATIONS.  SEE ROE V. WADE, ANTE, AT 127. 

        IV 

THE APPELLANTS ATTACK ON SEVERAL GROUNDS THOSE PORTIONS OF THE
GEORGIA ABORTION STATUTES THAT REMAIN AFTER THE DISTRICT COURT
DECISION; UNDUE RESTRICTION OF A RIGHT TO PERSONAL AND MARITAL PRIVACY;
VAGUENESS; DEPRIVATION OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS;
IMPROPER RESTRICTION TO GEORGIA RESIDENTS; AND DENIAL OF EQUAL
PROTECTION. 

A. ROE V. WADE, SUPRA, SETS FORTH OUR CONCLUSION THAT A PREGNANT
WOMAN DOES NOT HAVE AN ABSOLUTE CONSTITUTIONAL RIGHT TO AN ABORTION ON
HER DEMAND.  WHAT IS SAID THERE IS APPLICABLE HERE AND NEED NOT BE
REPEATED. 

B. THE APPELLANTS GO ON TO ARGUE, HOWEVER, THAT THE PRESENT GEORGIA
STATUTES MUST BE VIEWED HISTORICALLY, THAT IS, FROM THE FACT THAT PRIOR
TO THE 1968 ACT AN ABORTION IN GEORGIA WAS NOT CRIMINAL IF PERFORMED TO
"PRESERVE THE LIFE" OF THE MOTHER.  IT IS SUGGESTED THAT THE PRESENT
STATUTE, AS WELL, HAS THIS EMPHASIS ON THE MOTHER'S RIGHTS, NOT ON
THOSE OF THE FETUS.  APPELLANTS CONTEND THAT IT IS THUS CLEAR THAT
GEORGIA HAS GIVEN LITTLE, AND CERTAINLY NOR FIRST, CONSIDERATION TO THE
UNBORN CHILD.  YET, IT IS THE UNBORN CHILD'S RIGHTS THAT GEORGIA
ASSERTS IN JUSTIFICATION OF THE STATUTE.  APPELLANTS ASSERT THAT THIS
JUSTIFICATION CANNOT BE ADVANCED AT THIS LATE DATE.     APPELLANTS THEN
ARGUE THAT THE STATUTES DO NOT ADEQUATELY PROTECT THE WOMAN'S RIGHT. 
THIS IS SO BECAUSE IT WOULD BE PHYSICALLY AND EMOTIONALLY DAMAGING TO
DOE TO BRING A CHILD INTO HER POOR, "FATHERLESS"  /10/  FAMILY, AND
BECAUSE ADVANCES IN MEDICINE AND MEDICAL TECHNIQUES HAVE MADE IT SAFER
FOR A WOMAN TO HAVE A MEDICALLY INDUCED ABORTION THAN FOR HER TO BEAR A
CHILD.  THUS, "A STATUTE THAT REQUIRES A WOMAN TO CARRY AN UNWANTED
PREGNANCY TO TERM INFRINGES NOT ONLY ON A FUNDAMENTAL RIGHT OF PRIVACY
BUT ON THE RIGHT TO LIFE ITSELF.  BRIEF 27. 

THE APPELLANTS RECOGNIZE THAT A CENTURY AGO MEDICAL KNOWLEDGE WAS
NOT SO ADVANCED AS IT IS TODAY, THAT THE TECHNIQUES OF ANTISEPSIS WERE
NOT KNOWN, AND THAT ANY ABORTION PROCEDURE WAS DANGEROUS FOR THE
WOMAN.  TO RESTRICT THE LEGALITY OF THE ABORTION TO THE SITUATION WHERE
IT WAS DEEMED NECESSARY, IN MEDICAL JUDGMENT FOR THE PRESERVATION OF
THE WOMAN'S LIFE WAS ONLY A NATURAL CONCLUSION IN THE EXERCISE OF THE
LEGISLATIVE JUDGMENT OF THAT TIME.  A STATE IS NOT TO BE REPROACHED,
HOWEVER, FOR A PAST JUDGMENTAL DETERMINATION MADE IN THE LIGHT OF THEN
EXISTING MEDICAL KNOWLEDGE.  IT IS PERHAPS UNFAIR TO ARGUE, AS THE
APPELLANTS DO, THAT BECAUSE THE EARLY FOCUS WAS ON THE PRESERVATION OF
THE WOMAN'S LIFE, THE STATE'S PRESENT PROFESSED INTEREST IN THE
PROTECTION OF EMBRYONIC AND FETAL LIFE IS TO BE DOWNGRADED.  THAT
ARGUMENT DENIES THE STATE THE RIGHT TO READJUST ITS VIEWS AND EMPHASES
IN THE LIGHT OF THE ADVANCED KNOWLEDGE AND TECHNIQUES OF THE DAY. 

C. APPELLANTS ARGUE THAT SEC. 26-1202(A) OF THE GEORGIA STATUTES, AS
IT HAS BEEN LEFT BY THE DISTRICT COURT'S DECISION, IS
UNCONSTITUTIONALLY VAGUE.  THIS ARGUMENT CENTERS ON THE PROPOSITION
THAT, WITH THE DISTRICT COURT'S HAVING STRUCK DOWN THE STATUTORILY
SPECIFIED REASONS, IT STILL REMAINS A CRIME FOR A PHYSICIAN TO PERFORM
AN ABORTION EXCEPT WHEN, AS SEC. 26-1202(A) READS, IT IS "BASED UPON
HIS BEST CLINICAL JUDGMENT THAT AN ABORTION IS NECESSARY."  THE
APPELLANTS CONTEND THAT THE WORD "NECESSARY" DOES NOT WARN THE
PHYSICIAN OF WHAT CONDUCT IS PROSCRIBED; THAT THE STATUTE IS WHOLLY
WITHOUT OBJECTIVE STANDARDS AND IS SUBJECT TO DIVERSE INTERPRETATION;
AND THAT DOCTORS WILL CHOOSE TO ERR ON THE SIDE OF CAUTION AND WILL BE
ARBITRARY. 

THE NET RESULT OF THE DISTRICT COURT'S DECISION IS THAT THE ABORTION
DETERMINATION, SO FAR AS THE PHYSICIAN IS CONCERNED, IS MADE IN THE
EXERCISE OF HIS PROFESSIONAL, THAT IS, HIS "BEST CLINICAL," JUDGMENT IN
THE LIGHT OF ALL THE ATTENDANT CIRCUMSTANCES.  HE IS NOT NOW RESTRICTED
TO THE THREE SITUATIONS ORIGINALLY SPECIFIED.  INSTEAD, HE MAY RANGE
FARTHER AFIELD WHEREVER HIS MEDICAL JUDGMENT, PROPERLY AND
PROFESSIONALLY EXERCISED, SO DICTATES AND DIRECTS HIM. 

THE VAGUENESS ARGUMENT IS SET AT REST BY THE DECISION IN UNITED
STATES V. VUITCH, 402 U.S. 62, 71-72 (1971) WHERE THE ISSUE WAS RAISED
WITH RESPECT TO A DISTRICT OF COLUMBIA STATUTE MAKING ABORTIONS
CRIMINAL "UNLESS THE SAME WERE DONE AS NECESSARY FOR THE PRESERVATION
OF THE MOTHER'S LIFE OR HEALTH AND UNDER THE DIRECTION OF A COMPETENT
LICENSED PRACTITIONER OF MEDICINE."  THAT STATUTE HAS BEEN CONSTRUED TO
BEAR UPON PSYCHOLOGICAL AS WELL AS PHYSICAL WELL-BEING.  THIS BEING SO,
THE COURT CONCLUDED THAT THE TERM "HEALTH" PRESENTED NO PROBLEM OF
VAGUENESS.  "INDEED, WHETHER A PARTICULAR OPERATION IS NECESSARY FOR A
PATIENT'S PHYSICAL OR MENTAL HEALTH IS A JUDGMENT THAT PHYSICIANS ARE
OBVIOUSLY CALLED UPON TO MAKE ROUTINELY WHENEVER SURGERY IS
CONSIDERED."  ID., AT 72.  THIS CONCLUSION IS EQUALLY APPLICABLE HERE. 
WHETHER, IN THE WORDS OF THE GEORGIA STATUTE, "AN ABORTION IS
NECESSARY" IS A PROFESSIONAL JUDGMENT THAT THE GEORGIA PHYSICIAN WILL
BE CALLED UPON TO MAKE ROUTINELY. 

WE AGREE WITH THE DISTRICT COURT, 319 F.SUPP.,AT 1058, THAT THE
MEDICAL JUDGMENT MAY BE EXERCISED IN THE LIGHT OF ALL FACTORS--
PHYSICAL, EMOTIONAL, PSYCHOLOGICAL, FAMILIAL, AND THE WOMAN'S AGE--
RELEVANT TO THE WELL-BEING OF THE PATIENT.  ALL THESE FACTORS MAY
RELATE TO HEALTH.  THIS ALLOWS THE ATTENDING PHYSICIAN THE ROOM HE
NEEDS TO MAKE HIS BEST MEDICAL JUDGMENT.  AND IT IS ROOM THAT OPERATES
FOR THE BENEFIT, NOT THE DISADVANTAGE, OF THE PREGNANT WOMAN. 

D. THE APPELLANTS NEXT ARGUE THAT THE DISTRICT COURT SHOULD HAVE
DECLARED UNCONSTITUTIONAL THREE PROCEDURAL DEMANDS OF THE GEORGIA
STATUTE:  (A) THAT THE ABORTION BE PERFORMED IN A HOSPITAL ACCREDITED
BY THE JOINT COMMISSION ON ACCREDITATION OF HOSPITALS:  /11/  (2) THAT
THE PROCEDURE BE APPROVED BY THE HOSPITAL STAFF ABORTION COMMITTEE; AND
(3) THAT THE PERFORMING PHYSICIAN'S JUDGMENT BE CONFIRMED BY THE
INDEPENDENT EXAMINATIONS OF THE PATIENT BY TWO OTHER LICENSED
PHYSICIANS.  THE APPELLANTS ATTACK THESE PROVISIONS NOT ONLY ON THE
GROUND THAT THEY UNDULY RESTRICT THE WOMAN'S RIGHT OF PRIVACY, BUT ALSO
ON PROCEDURAL DUE PROCESS AND EQUAL PROTECTION GROUNDS.  THE PHYSICIAN
APPELLANTS ALSO ARGUE THAT, BY SUBJECTING A DOCTOR'S INDIVIDUAL MEDICAL
JUDGMENT TO COMMITTEE APPROVAL AND TO CONFIRMING CONSULTATIONS, THE
STATUTE IMPERMISSIBLY RESTRICTS THE PHYSICIAN'S RIGHT TO PRACTICE HIS
PROFESSION AND DEPRIVES HIM OF DUE PROCESS. 

1.  JCAH ACCREDITATION.  THE JOINT COMMISSION ON ACCREDITATION OF
HOSPITALS IS AN ORGANIZATION WITHOUT GOVERNMENTAL SPONSORSHIP OR
OVERTONES.  NO QUESTION WHATEVER IS RAISED CONCERNING THE INTEGRITY OF
THE ORGANIZATION OR THE HIGH PURPOSE OF THE ACCREDITATION PROCESS. 
/12/ THAT PROCESS, HOWEVER, HAS TO DO WITH HOSPITAL STANDARDS GENERALLY
AND HAS NO PRESENT PARTICULARIZED CONCERN WITH ABORTION AS A MEDICAL OR
SURGICAL PROCEDURE.  /13/  IN GEORGIA, THERE IS NO RESTRICTION ON THE
PERFORMANCE OF NON-ABORTION SURGERY IN A HOSPITAL NOT YET ACCREDITED BY
THE JCAH SO LONG AS OTHER REQUIREMENTS IMPOSED BY THE STATE, SUCH AS
LICENSING OF THE HOSPITAL AND OF THE OPERATING SURGEON, ARE MET.  SEE
GEORGIA CODE SECS. 88-1901(A) AND 85-1905 (1971) AND 84-907 (SUPP.
1971).  FURTHERMORE, ACCREDITATION BY THE COMMISSION IS NOT GRANTED
UNTIL A HOSPITAL HAS BEEN IN OPERATION AT LEAST ONE YEAR.  THE MODEL
PENAL CODE, SEC. 230.3, APPENDIX B HERETO, CONTAINS NO REQUIREMENT FOR
JCAH ACCREDITATION.  AND THE UNIFORM ABORTION ACT (FINAL DRAFT, AUG.
1971), /14/  APPROVED BY THE AMERICAN BAR ASSOCIATION IN FEBRUARY 1972,
CONTAINS NO JCAH-ACCREDITED HOSPITAL SPECIFICATION.  /15/  SOME COURTS
HAVE HELD THAT A JCAH-ACCREDITATION REQUIREMENT IS AN OVERBROAD
INFRINGEMENT OF FUNDAMENTAL RIGHTS BECAUSE IT DOES NOT RELATE TO THE
PARTICULAR MEDICAL PROBLEMS AND DANGERS OF THE ABORTION OPERATION. 
E.G., POE V. MENGHINI, 339 F.SUPP.,AT 993-994. 

WE HOLD THAT THE JCAH-ACCREDITATION REQUIREMENT DOES NOT WITHSTAND
CONSTITUTIONAL SCRUTINY IN THE PRESENT CONTEXT.  IT IS A REQUIREMENT
THAT SIMPLY IS NOT "BASED ON DIFFERENCES THAT ARE REASONABLY RELATED TO
THE PURPOSES OF THE ACT IN WHICH IT IS FOUND."  MOREY V. DOUD, 354 U.S.
457, 564 (1957). 

THIS IS NOT TO SAY THAT GEORGIA MAY NOT OR SHOULD NOT, FROM AND
AFTER THE END OF THE FIRST TRIMESTER, ADOPT STANDARDS FOR LICENSING ALL
FACILITIES WHERE ABORTIONS MAY BE PERFORMED SO LONG AS THOSE STANDARDS
ARE LEGITIMATELY RELATED TO THE OBJECTIVE THE STATE SEEKS TO
ACCOMPLISH.  THE APPELLANTS CONTEND THAT SUCH A RELATIONSHIP WOULD BE
LACKING EVEN IN A LESSER REQUIREMENT THAT AN ABORTION BE PERFORMED IN A
LICENSED HOSPITAL, AS OPPOSED TO A FACILITY, SUCH AS A CLINIC, THAT MAY
BE REQUIRED BY THE STATE TO POSSESS ALL THE STAFFING AND SERVICES
NECESSARY TO PERFORM AN ABORTION SAFELY (INCLUDING THOSE ADEQUATE TO
HANDLE SERIOUS COMPLICATIONS OR OTHER EMERGENCY, OR ARRANGEMENTS WITH A
NEARBY HOSPITAL TO PROVIDE SUCH SERVICES).  APPELLANTS AND VARIOUS
AMICI HAVE PRESENTED US WITH A MASS OF DATA PURPORTING TO DEMONSTRATE
THAT SOME FACILITIES OTHER THAN HOSPITALS ARE ENTIRELY ADEQUATE TO
PERFORM ABORTIONS IF THEY POSSESS THESE QUALIFICATIONS.  THE STATE, ON
THE OTHER HAND, HAS NOT PRESENTED PERSUASIVE DATA TO SHOW THAT ONLY
HOSPITALS MEET ITS ACKNOWLEDGED INTEREST IN INSURING THE QUALITY OF THE
OPERATION AND THE FULL PROTECTION OF THE PATIENT.  WE FEEL COMPELLED TO
AGREE WITH APPELLANTS THAT THE STATE MUST SHOW MORE THAN IT HAS IN
ORDER TO PROVE THAT ONLY THE FULL RESOURCES OF A LICENSED HOSPITAL,
RATHER THAN THOSE OF SOME OTHER APPROPRIATELY LICENSED INSTITUTION,
SATISFY THESE HEALTH INTERESTS.  WE HOLD THAT THE HOSPITAL REQUIREMENT
OF THE GEORGIA LAW, BECAUSE IT FAILS TO EXCLUDE THE FIRST TRIMESTER OF
PREGNANCY, SEE ROE V. WADE, ANTE, AT 163, IS ALSO INVALID.  IN SO
HOLDING WE NATURALLY EXPRESS NO OPINION ON THE MEDICAL JUDGMENT
INVOLVED IN ANY PARTICULAR CASE, THAT IS, WHETHER THE PATIENT'S
SITUATION IS SUCH THAT AN ABORTION SHOULD BE PERFORMED IN A HOSPITAL,
RATHER THAN IN SOME OTHER FACILITY. 

2.  COMMITTEE APPROVAL.  THE SECOND ASPECT OF THE APPELLANTS'
PROCEDURAL ATTACK RELATES TO THE HOSPITAL ABORTION COMMITTEE AND TO THE
PREGNANT WOMAN'S ASSERTED LACK OF ACCESS TO THAT COMMITTEE.  RELYING
PRIMARILY ON GOLDBERG V. KELLY, 297 U.S. 254 (1970), CONCERNING THE
TERMINATION OF WELFARE BENEFITS, AND WISCONSIN V. CONSTANTINEAU, 400
U.S. 433 (1971), CONCERNING THE POSTING OF AN ALCOHOLIC'S NAME, DOE
FIRST ARGUES THAT SHE WAS DENIED DUE PROCESS BECAUSE SHE COULD NOT MAKE
A PRESENTATION TO THE COMMITTEE.  IT IS NOT CLEAR FROM THE RECORD,
HOWEVER, WHETHER DOE'S OWN CONSULTING PHYSICIAN WAS OR WAS NOT A MEMBER
OF THE COMMITTEE OR DID OR DID NOT PRESENT HER CASE, OR, INDEED,
WHETHER SHE HERSELF WAS OR WAS NOT THERE.  WE SEE NOTHING IN THE
GEORGIA STATUTE THAT EXPLICITLY DENIES ACCESS TO THE COMMITTEE BY OR ON
BEHALF OF THE WOMAN.  IF THE ACCESS POINT ALONE WERE INVOLVED, WE WOULD
NOT BE PERSUADED TO STRIKE DOWN THE COMMITTEE PROVISION ON THE
UNSUPPORTED ASSUMPTION THAT ACCESS IS NOT PROVIDED. 

APPELLANTS ATTACK THE DISCRETION THE STATUTE LEAVES TO THE
COMMITTEE.  THE MOST CONCRETE ARGUMENT THEY ADVANCE IS THEIR SUGGESTION
THAT IT IS STILL A BADGE OF INFAMY "IN MANY MINDS" TO BEAR AN
ILLEGITIMATE CHILD, AND THAT THE GEORGIA SYSTEM ENABLES THE COMMITTEE
MEMBERS' PERSONAL VIEWS AS TO EXTRAMARITAL SEX RELATIONS, AND
PUNISHMENT THEREFOR, TO GOVERN THEIR DECISIONS.  THIS APPROACH
OBVIOUSLY IS ONE FOUNDED ON SUSPICION AND ONE THAT DISCLOSES A LACK OF
CONFIDENCE IN THE INTEGRITY OF PHYSICIANS.  TO SAY THAT PHYSICIANS WILL
BE GUIDED IN THEIR HOSPITAL COMMITTEE DECISIONS BY THEIR PREDILECTIONS
ON EXTRAMARITAL SEX UNDULY NARROWS THE ISSUE TO PREGNANCY OUTSIDE
MARRIAGE.  (DOE'S OWN SITUATION DID NOT INVOLVE EXTRAMARITAL SEX AND
ITS PRODUCT).  THE APPELLANTS' SUGGESTION IS NECESSARILY SOMEWHAT
DEGRADING TO THE CONSCIENTIOUS PHYSICIAN, PARTICULARLY THE
OBSTETRICIAN, WHOSE PROFESSIONAL ACTIVITY IS CONCERNED WITH THE
PHYSICAL AND MENTAL WELFARE, THE WOES, THE EMOTIONS, AND THE CONCERN OF
HIS FEMALE PATIENTS.  HE, PERHAPS MORE THAN ANYONE ELSE, IS
KNOWLEDGEABLE IN THIS AREA OF PATIENT CARE, AND HE IS AWARE OF HUMAN
FRAILTY, SO-CALLED "ERROR," AND NEEDS.  THE GOOD PHYSICIAN-- DESPITE
THE PRESENCE OF RASCALS IN THE MEDICAL PROFESSION, AS IN ALL OTHERS, WE
TRUST THAT MOST PHYSICIANS ARE "GOOD"-- WILL HAVE SYMPATHY AND
UNDERSTANDING FOR THE PREGNANT PATIENT THAT PROBABLY ARE NOT EXCEEDED
BY THOSE WHO PARTICIPATE IN OTHER AREAS OF PROFESSIONAL COUNSELING. 

IT IS PERHAPS WORTH NOTING THAT THE ABORTION COMMITTEE HAS A
FUNCTION OF ITS OWN.  IT IS A COMMITTEE OF THE HOSPITAL AND IT IS
COMPOSED OF MEMBERS OF THE INSTITUTION'S MEDICAL STAFF.  THE MEMBERSHIP
USUALLY IS A CHANGING ONE.  IN THIS WAY, ITS WORK BURDEN IS SHARED AND
IS MORE READILY ACCEPTED.  THE COMMITTEE'S FUNCTION IS PROTECTIVE.  IT
ENABLES THE HOSPITAL APPROPRIATELY TO BE ADVISED THAT ITS POSTURE AND
ACTIVITIES ARE IN ACCORD WITH LEGAL REQUIREMENTS.  IT IS TO BE
REMEMBERED THAT THE HOSPITAL IS AN ENTITY AND THAT IT, TOO, HAS LEGAL
RIGHTS AND LEGAL OBLIGATIONS. 

SAYING ALL THIS, HOWEVER, DOES NOT SETTLE THE ISSUE OF THE
CONSTITUTIONAL PROPRIETY OF THE COMMITTEE REQUIREMENT.  VIEWING THE
GEORGIA STATUTE AS A WHOLE, WE SEE NO CONSTITUTIONALLY JUSTIFIABLE
PERTINENCE IN THE STRUCTURE FOR THE ADVANCE APPROVAL BY THE ABORTION
COMMITTEE.  WITH REGARD TO THE PROTECTION OF POTENTIAL LIFE, THE
MEDICAL JUDGMENT IS ALREADY COMPLETED PRIOR TO THE COMMITTEE STAGE, AND
REVIEW BY A COMMITTEE ONCE REMOVED FROM DIAGNOSIS IS BASICALLY
REDUNDANT.  WE ARE NOT CITED TO ANY OTHER SURGICAL PROCEDURE MADE
SUBJECT TO COMMITTEE APPROVAL AS A MATTER OF STATE CRIMINAL LAW.  THE
WOMAN'S RIGHT TO RECEIVE MEDICAL CARE IN ACCORDANCE WITH HER LICENSED
PHYSICIAN'S BEST JUDGMENT AND THE PHYSICIAN'S RIGHT TO ADMINISTER IT
ARE SUBSTANTIALLY LIMITED BY THIS STATUTORILY IMPOSED OVERVIEW.  AND
THE HOSPITAL ITSELF IS OTHERWISE FULLY PROTECTED.  UNDER SEC. 26
1202(E), THE HOSPITAL IS FREE NOT TO ADMIT A PATIENT FOR AN ABORTION. 
IT IS EVEN FREE NOT TO HAVE AN ABORTION COMMITTEE.  FURTHER, A
PHYSICIAN OR ANY OTHER EMPLOYEE HAS THE RIGHT TO REFRAIN, FOR MORAL OR
RELIGIOUS REASONS, FROM PARTICIPATING IN THE ABORTION PROCEDURE.  THESE
PROVISIONS OBVIOUSLY ARE IN THE STATUTE IN ORDER TO AFFORD APPROPRIATE
PROTECTION TO THE INDIVIDUAL AND TO THE DENOMINATIONAL HOSPITAL. 
LITTLE MORE IS PROVIDED BY THE COMMITTEE PRESCRIBED BY SEC. 26
1202(B)(5). 

WE CONCLUDE THAT THE INTERPOSITION OF THE HOSPITAL ABORTION
COMMITTEE IS UNDULY RESTRICTIVE OF THE PATIENT'S RIGHTS AND NEEDS THAT,
AT THIS POINT, HAVE ALREADY BEEN MEDICALLY DELINEATED AND SUBSTANTIATED
BY HER PERSONAL PHYSICIAN.  TO ASK MORE SERVES NEITHER THE HOSPITAL NOR
THE STATE.     3.  TWO-DOCTOR CONCURRENCE.  THE THIRD ASPECT OF THE
APPELLANTS'  ATTACK CENTERS ON THE "TIME AND AVAILABILITY OF ADEQUATE
MEDICAL FACILITIES AND PERSONNEL."  IT IS SAID THAT THE SYSTEM IMPOSES
SUBSTANTIAL AND IRRATIONAL ROADBLOCKS AND "IS PATENTLY UNSUITED" TO
PROMPT DETERMINATION OF THE ABORTION DECISION.  TIME, OF COURSE, IS
CRITICAL IN ABORTION.  RISKS DURING THE FIRST TRIMESTER OF PREGNANCY
ARE ADMITTEDLY LOWER THAN DURING LATER MONTHS. 

THE APPELLANTS PURPORT TO SHOW BY A LOCAL STUDY /16/  OF GRADY
MEMORIAL HOSPITAL (SERVING INDIGENT RESIDENTS IN THE FULTON AND DEKALB
COUNTIES) THAT THE "MECHANICS OF THE SYSTEM ITSELF FORCED . . .
DISCONTINUANCE OF THE ABORTION PROCESS" BECAUSE THE MEDIAN TIME FOR THE
WORK-UP OF THE CANDIDATES WAS 15 DAYS.  THE SAME STUDY SHOWS, HOWEVER,
THAT 27% OF THE CANDIDATES FOR ABORTION WERE ALREADY 13 OR MORE WEEKS
PREGNANT AT THE TIME OF APPLICATION, THAT IS, THEY WERE AT THE END OF
OR BEYOND THE FIRST TRIMESTER WHEN THEY MADE THEIR APPLICATIONS.  IT IS
TOO MUCH TO SAY, AS APPELLANTS DO, THAT THESE PARTICULAR PERSONS "WERE
VICTIMS OF A SYSTEM OVER WHICH THEY (HAD) NO CONTROL."  IF HIGHER RISK
WAS INCURRED BECAUSE OF ABORTIONS IN THE SECOND RATHER THAN THE FIRST
TRIMESTER, MUCH OF THAT RISK WAS DUE TO DELAY IN APPLICATION, AND NOT
TO THE ALLEGED CUMBERSOMENESS OF THE SYSTEM.  WE NOTE, IN PASSING, THAT
APPELLANT DOE HAD NO DELAY PROBLEM HERSELF; THE DECISION IN HER CASE
WAS MADE WELL WITHIN THE FIRST TRIMESTER. 

IT SHOULD BE MANIFEST THAT OUR REJECTION OF THE ACCREDITED-HOSPITAL
REQUIREMENT AND, MORE IMPORTANT, OF THE ABORTION COMMITTEE'S ADVANCE
APPROVAL ELIMINATES THE MAJOR GROUNDS OF THE ATTACK BASED ON THE
SYSTEM'S DELAY AND THE LACK OF FACILITATES.  THERE REMAINS, HOWEVER,
THE REQUIRED CONFIRMATION BY TWO GEORGIA-LICENSED PHYSICIANS IN
ADDITION TO THE RECOMMENDATION OF THE PREGNANT WOMAN'S OWN CONSULTANT
(MAKING UNDER THE STATUTE, A TOTAL OF SIX PHYSICIANS INVOLVED,
INCLUDING THE THREE ON THE HOSPITAL'S ABORTION COMMITTEE).  WE CONCLUDE
THAT THIS PROVISION, TOO, MUST FALL. 

THE STATUTE'S EMPHASIS, AS HAS BEEN REPETITIVELY NOTED, IS ON THE
ATTENDING PHYSICIAN'S "BEST CLINICAL JUDGMENT THAT AN ABORTION IS
NECESSARY."  THAT SHOULD BE SUFFICIENT.  THE REASONS FOR THE PRESENCE
OF THE CONFIRMATION STEP IN THE STATUTE ARE PERHAPS APPARENT, BUT THEY
ARE INSUFFICIENT TO WITHSTAND CONSTITUTIONAL CHALLENGE.  AGAIN, NO
OTHER VOLUNTARY MEDICAL OR SURGICAL PROCEDURE FOR WHICH GEORGIA
REQUIRES CONFIRMATION BY TWO OTHER PHYSICIANS HAS BEEN CITED TO US.  IF
A PHYSICIAN IS LICENSED BY THE STATE, HE IS RECOGNIZED BY THE STATE AS
CAPABLE OF EXERCISING ACCEPTABLE CLINICAL JUDGMENT.  IF HE FAILS IN
THIS, PROFESSIONAL CENSURE AND DEPRIVATION OF HIS LICENSE ARE AVAILABLE
REMEDIES.  REQUIRED ACQUIESCENCE BY CO-PRACTITIONERS HAS NO RATIONAL
CONNECTION WITH A PATIENT'S NEEDS AND UNDULY INFRINGES ON THE
PHYSICIAN'S RIGHT TO PRACTICE.  THE ATTENDING PHYSICIAN WILL KNOW WHEN
A CONSULTATION IS ADVISABLE-- THE DOUBTFUL SITUATION, THE NEED FOR
ASSURANCE WHEN THE MEDICAL DECISION IS A DELICATE ONE, AND THE LIKE. 
PHYSICIANS HAVE FOLLOWED THIS ROUTINE HISTORICALLY AND KNOW ITS
USEFULNESS AND BENEFIT FOR ALL CONCERNED.  IT IS STILL TRUE TODAY THAT
"(RELIANCE MUST BE PLACED UPON THE ASSURANCE GIVEN BY HIS LICENSE,
ISSUED BY AN AUTHORITY COMPETENT TO JUDGE IN THAT RESPECT, THAT HE (THE
PHYSICIAN) POSSESSES THE REQUISITE QUALIFICATIONS."  DENT V. WEST
VIRGINIA, 129 U.S. 114, 122-123 (1889).  SEE UNITED STATES V. VUITCH,
402 U.S.,AT 71. 

E. THE APPELLANTS ATTACK THE RESIDENCY REQUIREMENT OF THE GEORGIA
LAW, SECS. 26-1202(B)(1) AND (B)(2), AS VIOLATIVE OF THE RIGHT TO
TRAVEL STRESSED IN SHAPIRO V. THOMPSON, 394 U.S. 618, 629-631 (1969),
AND OTHER CASES.  A REQUIREMENT OF THIS KIND, OF COURSE, COULD BE
DEEMED TO HAVE SOME RELATIONSHIP TO THE AVAILABILITY OF POST-PROCEDURE
MEDICAL CARE FOR THE ABORTED PATIENT. 

NEVERTHELESS, WE DO NOT UPHOLD THE CONSTITUTIONALITY OF THE
RESIDENCE REQUIREMENT.  IT IS NOT BASED ON ANY POLICY OF PRESERVING
STATE-SUPPORTED FACILITIES FOR GEORGIA RESIDENTS, FOR THE BAR ALSO
APPLIES TO PRIVATE HOSPITALS AND TO PRIVATELY RETAINED PHYSICIANS. 
THERE IS NO INTIMATION, EITHER, THAT GEORGIA FACILITIES ARE UTILIZED TO
CAPACITY IN CARING FOR GEORGIA RESIDENTS.  JUST AS THE PRIVILEGES AND
IMMUNITIES CALUSE, CONST. ART. IV, SEC. 2, PROTECTS PERSONS WHO ENTER
OTHER STATES TO PLY THEIR TRADE, WARD V. MARYLAND, 12 WALL.  418, 430
(1871); BLAKE V. MCCLUNG, 172 U.S. 239, 248-256 (1898), SO MUST IT
PROTECT PERSONS WHO ENTER GEORGIA SEEKING THE MEDICAL SERVICES THAT ARE
AVAILABLE THERE.  SEE TOOMER V. WITSELL, 334 U.S. 385, 396-397 (1948). 
A CONTRARY HOLDING WOULD MEAN THAT A STATE COULD LIMIT TO ITS OWN
RESIDENTS THE GENERAL MEDICAL CARE AVAILABLE WITHIN ITS BORDERS.  THIS
WE COULD NOT APPROVE. 

F. THE LAST ARGUMENT ON THIS PHASE OF THE CASE IS ONE THAT OFTEN IS
MADE, NAMELY, THAT THE GEORGIA SYSTEM IS VIOLATIVE OF EQUAL PROTECTION
BECAUSE IT DISCRIMINATES AGAINST THE POOR.  THE APPELLANTS DO NOT URGE
THAT ABORTION SHOULD BE PERFORMED BY PERSONS OTHER THAN LICENSED
PHYSICIANS, SO WE HAVE NO ARGUMENT THAT BECAUSE THE WEALTHY CAN BETTER
AFFORD PHYSICIANS, THE POOR SHOULD HAVE NON-PHYSICIANS MADE AVAILABLE
TO THEM.  THE APPELLANTS ACKNOWLEDGED THAT THE PROCEDURES ARE
"NONDISCRIMINATORY IN . . . EXPRESS TERMS" BUT THEY SUGGEST THAT THEY
HAVE PRODUCED INVIDIOUS DISCRIMINATIONS.  THE DISTRICT COURT REJECTED
THIS APPROACH OUT OF HAND.  319 F.SUPP.,AT 1056.  IT RESTS PRIMARILY ON
THE ACCREDITATION AND APPROVAL AND CONFIRMATION REQUIREMENTS, DISCUSSED
ABOVE, AND ON THE ASSERTION THAT MOST OF GEORGIA'S COUNTIES HAVE NO
ACCREDITED HOSPITAL.  WE HAVE SET ASIDE THE ACCREDITATION, APPROVAL,
AND CONFIRMATION REQUIREMENTS, HOWEVER, AND WITH THAT, THE
DISCRIMINATION ARGUMENT COLLAPSES IN ALL SIGNIFICANT ASPECTS. 

        V 

THE APPELLANTS COMPLAIN, FINALLY, OF THE DISTRICT COURT'S DENIAL OF
INJUNCTIVE RELIEF.  A LIKE CLAIM WAS MADE IN ROE V. WADE, ANTE, P.
113.  WE DECLINED DECISION THERE INSOFAR AS INJUNCTIVE RELIEF WAS
CONCERNED, AND WE DECLINE IT HERE.  WE ASSUME THAT GEORGIA'S
PROSECUTORIAL AUTHORITIES WILL GIVE FULL RECOGNITION TO THE JUDGMENT OF
THIS COURT. 

IN SUMMARY, WE HOLD THAT THE JCAH-ACCREDITED HOSPITAL PROVISION AND
THE REQUIREMENTS AS TO APPROVAL BY THE HOSPITAL ABORTION COMMITTEE, AS
TO CONFIRMATION BY TWO INDEPENDENT PHYSICIANS, AND AS TO RESIDENCE IN
GEORGIA ARE ALL VIOLATIVE OF THE FOURTEENTH AMENDMENT.  SPECIFICALLY,
THE FOLLOWING PORTIONS OF SEC. 26-1202(B), REMAINING AFTER THE DISTRICT
COURT'S JUDGMENT, ARE INVALID: 

(1) SUBSECTIONS (1) AND (2). 

(2) THAT PORTION OF SUBSECTION (3) FOLLOWING THE WORDS "(SUCH
PHYSICIAN'S JUDGMENT IS REDUCED TO WRITING." 

(3) SUBSECTIONS (4) AND (5). 

THE JUDGMENT OF THE DISTRICT COURT IS MODIFIED ACCORDINGLY AND, AS
SO MODIFIED, IS AFFIRMED.  COSTS ARE ALLOWED TO THE APPELLANTS. 

/0/  BRIEFS OF AMICI CURIAE WERE FILED BY ROY LUCAS FOR THE AMERICAN
COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS ET AL.; BY DENNIS J. HORAN,
JEROME A. FRAZEL, JR., THOMAS M. CRISHAM, AND DELORES V. HORAN FOR
CERTAIN PHYSICIANS, PROFESSORS AND FELLOWS OF THE AMERICAN COLLEGE OF
OBSTETRICS AND GYNECOLOGY; BY HARRIET F. PILPEL, NANCY F. WECHSLER, AND
FREDERIC S. NATHAN FOR PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.,
ET AL.; BY ALAN F. CHARLES FOR THE NATIONAL LEGAL PROGRAM ON HEALTH
PROBLEMS OF THE POOR ET AL.; BY MARTTIE L. THOMPSON FOR STATE
COMMUNITIES AID ASSN.; BY ALFRED L. SCANLAN, MARTIN J. FLYNN, AND
ROBERT M. BYRN FOR THE NATIONAL RIGHT TO LIFE COMMITTEE; BY HELEN L.
BUTTENWIESER FOR THE AMERICAN ETHICAL UNION ET AL.; BY NORMA G. ZARKY
FOR THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN ET AL.; BY NANCY
STEARNS FOR NEW WOMEN LAWYERS ET AL.; BY THE CALIFORNIA COMMITTEE TO
LEGALIZE ABORTION ET AL.; BY ROBERT E. DUNNE FOR ROBERT L. SASSONE; AND
BY FERDINAND BUCKLEY PRO SE. 

/1/  THE PORTIONS ITALICIZED IN APPENDIX A ARE THOSE HELD
UNCONSTITUTIONAL BY THE DISTRICT COURT. 

/2/  BRIEF FOR APPELLANTS 25 N. 5; TR. OF ORAL ARG. 9. 

/3/  SEE ROE V. WADE, ANTE, P. 113, AT 140 N. 37. 

/4/  THE PERTINENT PROVISIONS OF THE 1876 STATUTE WERE: 

"SECTION I. BE IT ENACTED, ETC., THAT FROM AND AFTER THE PASSAGE OF
THIS ACT, THE WILFUL KILLING OF AN UNBORN CHILD, SO FAR DEVELOPED AS TO
BE ORDINARILY CALLED 'QUICK,' BY ANY INJURY TO THE MOTHER OF SUCH
CHILD, WHICH WOULD BE MURDER IF IT RESULTED IN THE DEATH OF SUCH
MOTHER, SHALL BE GUILTY OF A FELONY, AND PUNISHABLE BY DEATH OR
IMPRISONMENT FOR LIFE, AS THE JURY TRYING THE CASE MAY RECOMMEND. 

"SEC. II.  BE IT FURTHER ENACTED, THAT EVERY PERSON WHO SHALL
ADMINISTER TO ANY WOMAN PREGNANT WITH A CHILD, ANY MEDICINE, DRUG, OR
SUBSTANCE WHATEVER, OR SHALL USE OR EMPLOY ANY INSTRUMENT OR OTHER
MEANS, WITH INTENT THEREBY TO TO DESTROY SUCH CHILD, UNLESS THE SAME
SHALL HAVE BEEN NECESSARY TO PRESERVE THE LIFE OF SUCH MOTHER, OR SHALL
HAVE BEEN ADVISED BY TWO PHYSICIANS TO BE NECESSARY FOR SUCH PURPOSE,
SHALL, IN CASE THE DEATH OF SUCH CHILD OR MOTHER BE THEREBY PRODUCED,
BE DECLARED GUILTY OF AN ASSAULT WITH INTENT TO MURDER. 

"SEC. III.  BE IT FURTHER ENACTED, THAT ANY PERSON WHO SHALL WILFULLY
ADMINISTER TO ANY PREGNANT WOMAN ANY MEDICINE, DRUG OR SUBSTANCE, OR
ANYTHING WHATEVER, OR SHALL EMPLOY ANY INSTRUMENT OR MEANS WHATEVER,
WITH INTENT THEREBY TO PROCURE THE MISCARRIAGE OR ABORTION OF ANY SUCH
WOMAN, UNLESS THE SAME SHALL HAVE BEEN NECESSARY TO PRESERVE THE LIFE
OF SUCH WOMAN, OR SHALL HAVE BEEN ADVISED BY TWO PHYSICIANS TO BE
NECESSARY FOR THAT PURPOSE, SHALL, UPON CONVICTION, BE PUNISHED AS
PRESCRIBED IN SECTION 4310 OF THE REVISED CODE OF GEORGIA." 

IT SHOULD BE NOTED THAT THE SECOND SECTION, IN CONTRAST TO THE
FIRST, MADE NO SPECIFIC REFERENCE TO QUICKENING.  THE SECTION WAS
CONSTRUED, HOWEVER, TO POSSESS THIS LINE OF DEMARCATION.  TAYLOR V.
STATE, 105 GA. 846, 33 S.E. 190 (1899). 

/5/  IN CONTRAST WITH THE ALI MODEL, THE GEORGIA STATUTE MAKES NO
SPECIFIC REFERENCE TO PREGNANCY RESULTING FROM INCEST.  WE WERE ASSURED
BY THE STATE AT REARGUMENT THAT THIS WAS BECAUSE THE STATUTE'S
REFERENCE TO "RAPE" WAS INTENDED TO INCLUDE INCEST.  TR. OF ORAL
REARG.  32. 

/6/  APPELLANTS BY THEIR COMPLAINT, APP. 7, ALLEGE THAT THE NAME IS A
PSEUDONYM. 

/7/  IN ANSWERS TO INTERROGATORIES, DOE STATED THAT HER APPLICATION
FOR AN ABORTION WAS APPROVED AT GEORGIA BAPTIST HOSPITAL ON MAY 5,
1970, BUT THAT SHE WAS NOT APPROVED AS A CHARITY PATIENT THERE AND HAD
NO MONEY TO PAY FOR AN ABORTION.  APP. 64. 

/8/  WHAT WE DECIDE TODAY OBVIOUSLY HAS IMPLICATIONS FOR THE ISSUES
RAISED IN THE DEFENDANTS' APPEAL PENDING IN THE FIFTH CIRCUIT. 

/9/  TR. OF ORAL ARG. 21-22. 

/10/  BRIEF FOR APPELLANTS 25. 

/11/  WE WERE ADVISED AT REARGUMENT, TR. OF ORAL REARG.  10, THAT
ONLY 54 OF GEORGIA'S 159 COUNTIES HAVE A JCAH-ACCREDITED HOSPITAL. 

/12/  SINCE ITS FOUNDING, JCAH HAS PURSUED THE "ELUSIVE GOAL" OF
DEFINING THE "OPTIMAL SETTING" FOR "QUALITY OF SERVICE IN HOSPITALS." 
JCAH ACCREDITATION MANUAL FOR HOSPITALS, FOREWORD (DEC. 1970).  THE
MANUAL'S INTRODUCTION STATES THE ORGANIZATION'S PURPOSE TO ESTABLISH
STANDARDS AND CONDUCT ACCREDITATION PROGRAMS THAT WILL AFFORD QUALITY
MEDICAL CARE "TO GIVE PATIENTS THE OPTIMAL BENEFITS THAT MEDICAL
SCIENCE HAS TO OFFER."  THIS AMBITIOUS AND ADMIRABLE GOAL IS
ILLUSTRATED BY JCAH'S DECISION IN 1966 "(TO RAISE AND STRENGTHEN THE
STANDARDS FROM THEIR PRESENT LEVEL OF MINIMUM ESSENTIAL TO THE LEVEL OF
OPTIMUM ACHIEVABLE . . . " SOME OF THESE "OPTIMUM ACHIEVABLE"
STANDARDS REQUIRED ARE:  DISCLOSURE OF HOSPITAL OWNERSHIP AND CONTROL;
A DIETETIC SERVICE AND WRITTEN DIETETIC POLICIES; A WRITTEN DISASTER
PLAN FOR MASS EMERGENCIES; A NUCLEAR MEDICAL SERVICES PROGRAM;
FACILITIES FOR HEMATOLOGY, CHEMISTRY, MICROBIOLOGY, CLINICAL
MICROSCOPY, AND SERO-IMMUNOLOGY; A PROFESSIONAL LIBRARY AND DOCUMENT
DELIVERY SERVICE; A RADIOLOGY PROGRAM; A SOCIAL SERVICES PLAN
ADMINISTERED BY A QUALIFIED SOCIAL WORKER; AND A SPECIAL CARE UNIT. 

/13/  "THE JOINT COMMISSION NEITHER ADVOCATES NOR OPPOSES ANY
PARTICULAR POSITION WITH RESPECT TO ELECTIVE ABORTIONS."  LETTER DATED
JULY 9, 1971, FROM JOHN I. BREWER, M.D., COMMISSIONER, JCAH, TO THE
ROCKEFELLER FOUNDATION.  BRIEF FOR AMICI CURIAE, AMERICAN COLLEGE OF
OBSTETRICIANS AND GYNECOLOGISTS ET AL., P. A-3. 

/14/  SEE ROE V. WADE, ANTE, AT 146-147, N. 40. 

/15/  SOME STATE STATUTES DO NOT HAVE THE JCAH-ACCREDITATION
REQUIREMENT.  ALASKA STAT. SEC. 11.15.060 (1970); HAWAII REV. STAT.
SEC. 453-16 (SUPP. 1971); N.Y. PENAL CODE SEC. 125.05, SUBD. 3 (SUPP.
1971-1973).  WASHINGTON HAS THE REQUIREMENT BUT COUPLES IT WITH THE
ALTERNATIVE OF "A MEDICAL FACILITY APPROVED . . . BY THE STATE BOARD OF
HEALTH."  WASH. REV. CODE SEC. 9.02.070 (SUPP. 1972).  FLORIDA'S NEW
STATUTE HAS A SIMILAR PROVISION.  LAW OF APR. 13, 1972, C. 72-196, SEC.
1(2).  OTHERS CONTAIN THE SPECIFICATION.  ARK. STAT. ANN. SECS. 41-303
TO 41-310 (SUPP. 1971); CALIF. HEALTH & SAFETY CODE SECS. 25950-25955.5
(SUPP. 1971); COLO. REV. STAT. ANN. SECS. 40-2-50 TO 40-2-53 (CUM.
SUPP. 1967); KAN. STAT. ANN. SEC. 21-3407 (SUPP. 1971); MD. ANN. CODE,
ART. 43, SECS. 137-139 (1971).  CF. DEL. CODE ANN., TIT. 24, SECS. 1790
1793 (SUPP. 1972), SPECIFYING "A NATIONALLY RECOGNIZED MEDICAL OR
HOSPITAL ACCREDITATION AUTHORITY," SEC. 1790(A). 

/16/  L. BAKER & M. FREEMAN, ABORTION SURVEILLANCE AT GRADY MEMORIAL
HOSPITAL CENTER FOR DISEASE CONTROL (JUNE AND JULY 1971) (U.S. DEPT. OF
HEW, PUBLIC HEALTH SERVICE). 

APPENDIX A TO OPINION OF THE COURT

        CRIMINAL CODE OF GEORGIA

        CHAPTER 26-12.  ABORTION.     26-1201.  CRIMINAL ABORTION. 
EXCEPT AS OTHERWISE PROVIDED IN SECTION 26-1202, A PERSON COMMITS
CRIMINAL ABORTION WHEN HE ADMINISTERS ANY MEDICINE, DRUG OR OTHER
SUBSTANCE WHATEVER TO ANY WOMAN OR WHEN HE USES ANY INSTRUMENT TO OTHER
MEANS WHATEVER UPON ANY WOMAN WITH INTENT TO PRODUCE A MISCARRIAGE OR
ABORTION. 

26-1202.  EXCEPTION.  (A) SECTION 26-1201 SHALL NOT APPLY TO AN
ABORTION PERFORMED BY A PHYSICIAN DULY LICENSED TO PRACTICE MEDICINE
AND SURGERY PURSUANT TO CHAPTER 84-9 OR 84-12 OF THE CODE OF GEORGIA OF
1933, AS AMENDED, BASED UPON HIS BEST CLINICAL JUDGMENT THAT AN
ABORTION IS NECESSARY BECAUSE: 

(1) A CONTINUATION OF THE PREGNANCY WOULD ENDANGER THE LIFE OF THE
PREGNANT WOMAN OR WOULD SERIOUSLY AND PERMANENTLY INJURE HER HEALTH;
OR 

(2) THE FETUS WOULD VERY LIKELY BE BORN WITH A GRAVE, PERMANENT, AND
IRREMEDIABLE MENTAL OR PHYSICAL DEFECT; OR 

(3) THE PREGNANCY RESULTED FROM FORCIBLE OR STATUTORY RAPE. 

(B) NO ABORTION IS AUTHORIZED OR SHALL BE PERFORMED UNDER THIS

(1) THE PREGNANT WOMAN REQUESTING THE ABORTION CERTIFIES IN WRITING
UNDER OATH AND SUBJECT TO THE PENALTIES OF FALSE SWEARING TO THE
PHYSICIAN WHO PROPOSES TO PERFORM THE ABORTION THAT SHE IS A BONA FIDE
LEGAL RESIDENT OF THE STATE OF GEORGIA. 

(2) THE PHYSICIAN CERTIFIES THAT HE BELIEVES THE WOMAN IS A BONA
FIDE RESIDENT OF THIS STATE AND THAT HE HAS NO INFORMATION WHICH SHOULD
LEAD HIM TO BELIEVE OTHERWISE. 

(3) SUCH PHYSICIANS JUDGMENT IS REDUCED TO WRITING AND CONCURRED IN
BY AT LEAST TWO OTHER PHYSICIANS DULY LICENSED TO PRACTICE MEDICINE AND
SURGERY PURSUANT TO CHAPTER 84-9 OF THE CODE OF GEORGIA OF 1933, AS
AMENDED, WHO CERTIFY IN WRITING THAT BASED UPON THEIR SEPARATE PERSONAL
MEDICAL EXAMINATIONS OF THE PREGNANT WOMAN, THE ABORTION IS, IN THEIR
JUDGMENT, NECESSARY BECAUSE OF ONE OR MORE OF THE REASONS ENUMERATED
ABOVE. 

(4) SUCH ABORTION IS PERFORMED IN A HOSPITAL LICENSED BY THE STATE
BOARD OF HEALTH AND ACCREDITED BY THE JOINT COMMISSION ON ACCREDITATION
OF HOSPITALS. 

(5) THE PERFORMANCE OF THE ABORTION HAS BEEN APPROVED IN ADVANCE BY
A COMMITTEE OF THE MEDICAL STAFF OF THE HOSPITAL IN WHICH THE OPERATION
IS TO BE PERFORMED.  THIS COMMITTEE MUST BE ONE ESTABLISHED AND
MAINTAINED IN ACCORDANCE WITH THE STANDARDS PROMULGATED BY THE JOINT
COMMISSION ON THE ACCREDITATION OF HOSPITALS, AND ITS APPROVAL MUST BE
BY A MAJORITY VOTE OF A MEMBERSHIP OF NOT LESS THAN THREE MEMBERS OF
THE HOSPITAL'S STAFF; THE PHYSICIAN PROPOSING TO PERFORM THE OPERATION
MAY NOT BE COUNTED AS A MEMBER OF THE COMMITTEE FOR THIS PURPOSE. 

(6) IF THE PROPOSED ABORTION IS CONSIDERED NECESSARY BECAUSE THE
WOMAN HAS BEEN RAPED, THE WOMAN MAKES A WRITTEN STATEMENT UNDER OATH,
AND SUBJECT TO THE PENALTIES OF FALSE SWEARING, OF THE DATE, TIME AND
PLACE OF THE RAPE AND THE NAME OF THE RAPIST, IF KNOWN.  THERE MUST BE
ATTACHED TO THIS STATEMENT A CERTIFIED COPY OF ANY REPORT OF THE RAPE
MADE BY ANY LAW ENFORCEMENT OFFICER OR AGENCY AND A STATEMENT BY THE
SOLICITOR GENERAL OF THE JUDICIAL CIRCUIT WHERE THE RAPE OCCURRED OR
ALLEGEDLY OCCURRED THAT, ACCORDING TO HIS BEST INFORMATION, THERE IS
PROBABLE CAUSE TO BELIEVE THAT THE RAPE DID OCCUR. 

(7) SUCH WRITTEN OPINIONS, STATEMENTS, CERTIFICATES, AND
CONCURRENCES ARE MAINTAINED IN THE PERMANENT FILES OF SUCH HOSPITAL AND
ARE AVAILABLE AT ALL REASONABLE TIMES TO THE SOLICITOR GENERAL OF THE
JUDICIAL CIRCUIT IN WHICH THE HOSPITAL IS LOCATED. 

(8) A COPY OF SUCH WRITTEN OPINIONS, STATEMENTS, CERTIFICATES, AND
CONCURRENCES IS FILED WITH THE DIRECTOR OF THE STATE DEPARTMENT OF
PUBLIC HEALTH WITHIN 10 DAYS AFTER SUCH OPERATION IS PERFORMED. 

(9) ALL WRITTEN OPINIONS, STATEMENTS, CERTIFICATES, AND CONCURRENCES
FILED AND MAINTAINED PURSUANT TO PARAGRAPHS (7) AND (8) OF THIS
SUBSECTION SHALL BE CONFIDENTIAL RECORDS AND SHALL NOT BE MADE
AVAILABLE FOR PUBLIC INSPECTION AT ANY TIME. 

(C) ANY SOLICITOR GENERAL OF THE JUDICIAL CIRCUIT IN WHICH AN
ABORTION IS TO BE PERFORMED UNDER THIS SECTION, OR ANY PERSON WHO WOULD
BE A RELATIVE OF THE CHILD WITHIN THE SECOND DEGREE OF CONSANGUINITY,
MAY PETITION THE SUPERIOR COURT OF THE COUNTY IN WHICH THE ABORTION IS
TO BE PERFORMED FOR A DECLARATORY JUDGMENT WHETHER THE PERFORMANCE OF
SUCH ABORTION WOULD VIOLATE ANY CONSTITUTIONAL OR OTHER LEGAL RIGHTS OF
THE FETUS.  SUCH SOLICITOR GENERAL MAY ALSO PETITION SUCH COURT FOR THE
PURPOSE OF TAKING ISSUE WITH COMPLIANCE WITH THE REQUIREMENTS OF THIS
PREGNANT WOMAN SHALL BE RESPONDENTS.  THE PETITION SHALL BE HEARD
EXPEDITIOUSLY AND IF THE COURT ADJUDGES THAT SUCH ABORTION WOULD
VIOLATE THE CONSTITUTIONAL OR OTHER LEGAL RIGHTS OF THE FETUS, THE
COURT SHALL SO DECLARE AND SHALL RESTRAIN THE PHYSICIAN FROM PERFORMING
THE ABORTION. 

(D) IF AN ABORTION IS PERFORMED IN COMPLIANCE WITH THIS SECTION, THE
DEATH OF THE FETUS SHALL NOT GIVE RISE TO ANY CLAIM FOR WRONGFUL
DEATH. 

(E) NOTHING IN THIS SECTION SHALL REQUIRE A HOSPITAL TO ADMIT ANY
PATIENT UNDER THE PROVISIONS HEREOF FOR THE PURPOSE OF PERFORMING AN
ABORTION, NOR SHALL ANY HOSPITAL BE REQUIRED TO APPOINT A COMMITTEE
SUCH AS CONTEMPLATED UNDER SUBSECTION (B)(5).  A PHYSICIAN, OR ANY
OTHER PERSON WHO IS A MEMBER OF OR ASSOCIATED WITH THE STAFF OF A
HOSPITAL, OR ANY EMPLOYEE OF A HOSPITAL IN WHICH AN ABORTION HAS BEEN
AUTHORIZED, WHO SHALL STATE IN WRITING AN OBJECTION TO SUCH ABORTION ON
MORAL OR RELIGIOUS GROUNDS SHALL NOT BE REQUIRED TO PARTICIPATE IN THE
MEDICAL PROCEDURES WHICH WILL RESULT IN THE ABORTION, AND THE REFUSAL
OF ANY SUCH PERSON TO PARTICIPATE THEREIN SHALL NOT FORM THE BASIS OF
ANY CLAIM FOR DAMAGES ON ACCOUNT OF SUCH REFUSAL OR FOR ANY
DISCIPLINARY OR RECRIMINATORY ACTION AGAINST SUCH PERSON. 

26-1203.  PUNISHMENT.  A PERSON CONVICTED OF CRIMINAL ABORTION SHALL
BE PUNISHED BY IMPRISONMENT FOR NOT LESS THAN ONE NOR MORE THAN 10
YEARS. 

APPENDIX B TO OPINION OF THE COURT

        AMERICAN LAW INSTITUTE

        MODEL PENAL CODE 


(1) UNJUSTIFIED ABORTION.  A PERSON WHO PURPOSELY AND UNJUSTIFIABLY
TERMINATES THE PREGNANCY OF ANOTHER OTHERWISE THAN BY A LIVE BIRTH
COMMITS A FELONY OF THE THIRD DEGREE OR, WHERE THE PREGNANCY HAS
CONTINUED BEYOND THE TWENTY-SIXTH WEEK, A FELONY OF THE SECOND DEGREE. 

(2) JUSTIFIABLE ABORTION.  A LICENSED PHYSICIAN IS JUSTIFIED IN
TERMINATING A PREGNANCY IF HE BELIEVES THERE IS SUBSTANTIAL RISK THAT
CONTINUANCE OF THE PREGNANCY WOULD GRAVELY IMPAIR THE PHYSICAL OR
MENTAL HEALTH OF THE MOTHER OR THAT THE CHILD WOULD BE BORN WITH GRAVE
PHYSICAL OR MENTAL DEFECT, OR THAT THE PREGNANCY RESULTED FROM RAPE,
INCEST, OR OTHER FELONIOUS INTERCOURSE.  ALL ILLICIT INTERCOURSE WITH A
GIRL BELOW THE AGE OF 16 SHALL BE DEEMED FELONIOUS FOR PURPOSES OF THIS
SUBSECTION.  JUSTIFIABLE ABORTIONS SHALL BE PERFORMED ONLY IN A
LICENSED HOSPITAL EXCEPT IN CASE OF EMERGENCY WHEN HOSPITAL FACILITIES
ARE UNAVAILABLE.  (ADDITIONAL EXCEPTIONS FROM THE REQUIREMENT OF
HOSPITALIZATION MAY BE INCORPORATED HERE TO TAKE ACCOUNT OF SITUATIONS
IN SPARSELY SETTLED AREAS WHERE HOSPITALS ARE NOT GENERALLY
ACCESSIBLE.) 

(3) PHYSICIANS' CERTIFICATES; PRESUMPTION FROM NON-COMPLIANCE.  NO
ABORTION SHALL BE PERFORMED UNLESS TWO PHYSICIANS, ONE OF WHOM MAY BE
THE PERSON PERFORMING THE ABORTION, SHALL HAVE CERTIFIED IN WRITING THE
CIRCUMSTANCES WHICH THEY BELIEVE TO JUSTIFY THE ABORTION.  SUCH
CERTIFICATE SHALL BE SUBMITTED BEFORE THE ABORTION TO THE HOSPITAL
WHERE IT IS TO BE PERFORMED AND, IN THE CASE OF ABORTION FOLLOWING
FELONIOUS INTERCOURSE, TO THE PROSECUTING ATTORNEY OR THE POLICE. 
FAILURE TO COMPLY WITH ANY OF THE REQUIREMENTS OF THIS SUBSECTION GIVES
RISE TO A PRESUMPTION THAT THE ABORTION WAS UNJUSTIFIED. 

(4) SELF-ABORTION.  A WOMAN WHOSE PREGNANCY HAS CONTINUED BEYOND THE
TWENTY-SIXTH WEEK COMMITS A FELONY OF THE THIRD DEGREE IF SHE PURPOSELY
TERMINATES HER OWN PREGNANCY OTHERWISE THAN BY A LIVE BIRTH, OR IF SHE
USES INSTRUMENTS, DRUGS OR VIOLENCE UPON HERSELF FOR THAT PURPOSE. 
EXCEPT AS JUSTIFIED UNDER SUBSECTION (2), A PERSON WHO INDUCES OR
KNOWINGLY AIDS A WOMAN TO USE INSTRUMENTS, DRUGS OR VIOLENCE UPON
HERSELF FOR THE PURPOSE OF TERMINATING HER PREGNANCY OTHERWISE THAN BY
A LIVE BIRTH COMMITS A FELONY OF THE THIRD DEGREE WHETHER OR NOT THE
PREGNANCY HAS CONTINUED BEYOND THE TWENTY-SIXTH WEEK. 

(5) PRETENDED ABORTION.  A PERSON COMMITS A FELONY OF THE THIRD
DEGREE IF, REPRESENTING THAT IT IS HIS PURPOSE TO PERFORM AN ABORTION,
HE DOES AN ACT ADAPTED TO CAUSE ABORTION IN A PREGNANT WOMAN ALTHOUGH
THE WOMAN IS IN FACT NOT PREGNANT, OR THE ACTOR DOES NOT BELIEVE SHE
IS.  A PERSON CHARGED WITH UNJUSTIFIED ABORTION UNDER SUBSECTION (1) OR
AN ATTEMPT TO COMMIT THAT OFFENSE MAY BE CONVICTED THEREOF UPON PROOF
OF CONDUCT PROHIBITED BY THIS SUBSECTION. 

(6) DISTRIBUTION OF ABORTIFACIENTS.  A PERSON WHO SELLS, OFFERS TO
SELL, POSSESSES WITH INTENT TO SELL, ADVERTISES, OR DISPLAYS FOR SALE
ANYTHING SPECIALLY DESIGNED TO TERMINATE A PREGNANCY, OR HELD OUT BY
THE ACTOR AS USEFUL FOR THAT PURPOSE, COMMITS A MISDEMEANOR, UNLESS: 

(A) THE SALE, OFFER OR DISPLAY IS TO A PHYSICIAN OR DRUGGIST OR TO
AN INTERMEDIARY IN A CHAIN OF DISTRIBUTION TO PHYSICIANS OR DRUGGISTS;
OR 

(B) THE SALE IS MADE UPON PRESCRIPTION OR ORDER OF A PHYSICIAN; OR 

(C) THE POSSESSION IS WITH INTENT TO SELL AS AUTHORIZED IN
PARAGRAPHS (A) AND (B); OR 

(D) THE ADVERTISING IS ADDRESSED TO PERSONS NAMED IN PARAGRAPH (A)
AND CONFINED TO TRADE OR PROFESSIONAL CHANNELS NOT LIKELY TO REACH THE
GENERAL PUBLIC. 

(7) SECTION INAPPLICABLE TO PREVENTION OF PREGNANCY.  NOTHING IN
THIS SECTION SHALL BE DEEMED APPLICABLE TO THE PRESCRIPTION,
ADMINISTRATION OR DISTRIBUTION OF DRUGS OR OTHER SUBSTANCES FOR
AVOIDING PREGNANCY, WHETHER BY PREVENTING IMPLANTATION OF A FERTILIZED
OVUM OR BY ANY OTHER METHOD THAT OPERATES BEFORE, AT OR IMMEDIATELY
AFTER FERTILIZATION. 

MR. CHIEF JUSTICE BURGER, CONCURRING /0/ 

I AGREE THAT, UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION,
THE ABORTION STATUTES OF GEORGIA AND TEXAS IMPERMISSIBLY LIMIT THE
PERFORMANCE OF ABORTIONS NECESSARY TO PROTECT THE HEALTH OF PREGNANT
WOMEN, USING THE TERM HEALTH IN ITS BROADEST MEDICAL CONTEXT.  SEE
UNITED STATES V. VUITCH, 402 U.S. 62, 71-72 (1971).  I AM SOMEWHAT
TROUBLED THAT THE COURT HAS TAKEN NOTICE OF VARIOUS SCIENTIFIC MEDICAL
DATA IN REACHING ITS CONCLUSION; HOWEVER, I DO NOT BELIEVE THAT THE
COURT HAS EXCEEDED THE SCOPE OF JUDICIAL NOTICE ACCEPTED IN OTHER
CONTEXTS. 

IN ORAL ARGUMENT, COUNSEL FOR THE STATE OF TEXAS INFORMED THE COURT
THAT EARLY ABORTION PROCEDURES WERE ROUTINELY PERMITTED IN CERTAIN
EXCEPTIONAL CASES, SUCH AS NONCONSENSUAL PREGNANCIES RESULTING FROM
RAPE AND INCEST.  IN THE FACE OF A RIGID AND NARROW STATUTE, SUCH AS
THAT OF TEXAS, NO ONE IN THESE CIRCUMSTANCES SHOULD BE PLACED IN A
POSTURE OF DEPENDENCE ON A PROSECUTORIAL POLICY OR PROSECUTORIAL
DISCRETION.  OF COURSE, STATES MUST HAVE BROAD POWER, WITHIN THE LIMITS
INDICATED IN THE OPINIONS, TO REGULATE THE SUBJECT OF ABORTIONS, BUT
WHERE THE CONSEQUENCES OF STATE INTERVENTION ARE SO SEVERE, UNCERTAINTY
MUST BE AVOIDED AS MUCH AS POSSIBLE.  FOR MY PART, I WOULD BE INCLINED
TO ALLOW A STATE TO REQUIRE THE CERTIFICATION OF TWO PHYSICIANS TO
SUPPORT AN ABORTION, BUT THE COURT HOLDS OTHERWISE.  I DO NOT BELIEVE
THAT SUCH A PROCEDURE IS UNDULY BURDENSOME, AS ARE THE COMPLEX STEPS OF
THE GEORGIA STATUTE, WHICH REQUIRE AS MANY AS SIX DOCTORS AND THE USE
OF A HOSPITAL CERTIFIED BY THE JCAH. 

I DO NOT READ THE COURT'S HOLDINGS TODAY AS HAVING THE SWEEPING
CONSEQUENCES ATTRIBUTED TO THEM BY THE DISSENTING JUSTICES; THE
DISSENTING VIEWS DISCOUNT THE REALITY THAT THE VAST MAJORITY OF
PHYSICIANS OBSERVE THE STANDARDS OF THEIR PROFESSION, AND ACT ONLY ON
THE BASIS OF CAREFULLY DELIBERATED MEDICAL JUDGMENTS RELATING TO LIFE
AND HEALTH.  PLAINLY, THE COURT TODAY REJECTS ANY CLAIM THAT THE
CONSTITUTION REQUIRES ABORTIONS ON DEMAND. 

/0/  (THIS OPINION APPLIES ALSO TO NO. 70-18, ROE V. WADE, ANTE, P.
113.) 

MR. JUSTICE DOUGLAS, CONCURRING /0/ 

WHILE I JOIN THE OPINION OF THE COURT, /1/  I ADD A FEW WORDS. 

        I 

THE QUESTIONS PRESENTED IN THE PRESENT CASES GO FAR BEYOND THE
ISSUES OF VAGUENESS, WHICH WE CONSIDERED IN UNITED STATES V. VUITCH,
402 U.S. 62.  THEY INVOLVE THE RIGHT OF PRIVACY, ONE ASPECT OF WHICH WE
CONSIDERED IN GRISWOLD V. CONNECTICUT, 381 U.S. 479, 484, WHEN WE HELD
THAT VARIOUS GUARANTEES IN THE BILL OF RIGHTS CREATE ZONES OF PRIVACY. 
/2/ 

THE GRISWOLD CASE INVOLVED A LAW FORBIDDING THE USE OF
CONTRACEPTIVES.  WE HELD THAT LAW AS APPLIED TO MARRIED PEOPLE
UNCONSTITUTIONAL: 

     "WE DEAL WITH A RIGHT OF PRIVACY OLDER THAN THE BILL OF

  RIGHTS-- OLDER THAT OUR POLITICAL PARTIES, OLDER THAN OUR SCHOOL

SYSTEM.  MARRIAGE IS A COMING TOGETHER FOR BETTER OR FOR WORSE,

  HOPEFULLY ENDURING, AND INTIMATE TO THE DEGREE OF BEING SACRED." 

  ID., AT 486. 

THE DISTRICT COURT IN DOE HELD THAT GRISWOLD AND RELATED CASES
"ESTABLISH A CONSTITUTIONAL RIGHT TO PRIVACY BROAD ENOUGH TO ENCOMPASS
THE RIGHT OF A WOMAN TO GERMINATE AN UNWANTED PREGNANCY IN ITS EARLY
STAGES, BY OBTAINING AN ABORTION."  318 F.SUPP.  1048, 1054.     THE
SUPREME COURT OF CALIFORNIA EXPRESSED THE SAME VIEW IN PEOPLE V.
BELOUS, /3/  61 CAL.2D 954, 963, 458 P.2D 194, 199. 

THE NINTH AMENDMENT OBVIOUSLY DOES NOT CREATE FEDERALLY ENFORCEABLE
RIGHTS.  IT MERELY SAYS, "THE ENUMERATION IN THE CONSTITUTION, OF
CERTAIN RIGHTS, SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS
RETAINED BY THE PEOPLE."  BUT A CATALOGUE OF THESE RIGHTS INCLUDES
CUSTOMARY, TRADITIONAL, AND TIME-HONORED RIGHTS, AMENITIES, PRIVILEGES,
AND IMMUNITIES THAT COME WITHIN THE SWEEP OF "THE BLESSINGS OF LIBERTY"
MENTIONED IN THE PREAMBLE TO THE CONSTITUTION.  MANY OF THEM, IN MY
VIEW, COME WITHIN THE MEANING OF THE TERM "LIBERTY" AS USED IN THE
FOURTEENTH AMENDMENT. 

FIRST IS THE AUTONOMOUS CONTROL OVER THE DEVELOPMENT AND EXPRESSION
OF ONE'S INTELLECT, INTERESTS, TASTES, AND PERSONALITY. 

THESE ARE RIGHTS PROTECTED BY THE FIRST AMENDMENT AND, IN MY VIEW,
THEY ARE ABSOLUTE, PERMITTING OF NO EXCEPTIONS.  SEE TERMINIELLO V.
CHICAGO, 337 U.S. 1; ROTH V. UNITED STATES, 354 U.S. 476, 508
(DISSENT); KINGSLEY PICTURES CORP. V. REGENTS, 360 U.S. 684, 697
(CONCURRING); NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 293 (BLACK,
J., CONCURRING, IN WHICH I JOINED).  THE FREE EXERCISE CLAUSE OF THE
FIRST AMENDMENT IS ONE FACET OF THIS CONSTITUTIONAL RIGHT.  THE RIGHT
TO REMAIN SILENT AS RESPECTS ONE'S OWN BELIEFS, WATKINS V. UNITED
STATES, 354 U.S. 178, 196-199, IS PROTECTED BY THE FIRST AND THE
FIFTH.  THE FIRST AMENDMENT GRANTS THE PRIVACY OF FIRST-CLASS MAIL,
UNITED STATES V. VAN LEEUWEN, 397 U.S. 249, 253.  ALL OF THESE ASPECTS
OF THE RIGHT OF PRIVACY ARE RIGHTS "RETAINED BY THE PEOPLE" IN THE
MEANING OF THE NINTH AMENDMENT. 

SECOND IS FREEDOM OF CHOICE IN THE BASIC DECISIONS OF ONE'S LIFE
RESPECTING MARRIAGE, DIVORCE, PROCREATION, CONTRACEPTION, AND THE
EDUCATION AND UPBRINGING OF CHILDREN. 

THESE RIGHTS, UNLIKE THOSE PROTECTED BY THE FIRST AMENDMENT, ARE
SUBJECT TO SOME CONTROL BY THE POLICE POWER.  THUS, THE FOURTH
AMENDMENT SPEAKS ONLY OF "UNREASONABLE SEARCHES AND SEIZURES" AND OF
"PROBABLE CAUSE."  THESE RIGHTS ARE "FUNDAMENTAL," AND WE HAVE HELD
THAT IN ORDER TO SUPPORT LEGISLATIVE ACTION THE STATUTE MUST BE
NARROWLY AND PRECISELY DRAWN AND THAT A "COMPELLING STATE INTEREST"
MUST BE SHOWN IN SUPPORT OF THE LIMITATION.  E.G., KRAMER V. UNION FREE
SCHOOL DISTRICT, 395 U.S. 621; SHAPIRO V. THOMPSON, 394 U.S. 618;
CARRINGTON V. RASH, 380 U.S. 89; SHERBERT V. VERNER, 374 U.S. 398;
NAACP V. ALABAMA, 357 U.S. 449. 

THE LIBERTY TO MARRY A PERSON OF ONE'S OWN CHOOSING, LOVING V.
VIRGINIA, 388 U.S. 1; THE RIGHT OF PROCREATION, SKINNER V. OKLAHOMA,
316 U.S. 535; THE LIBERTY TO DIRECT THE EDUCATION OF ONE'S CHILDREN,
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, AND THE PRIVACY OF THE
MARITAL RELATION, GRISWOLD V. CONNECTICUT, SUPRA, ARE IN THIS
CATEGORY.  /4/ 

ONLY LAST TERM IN EISENSTADT V. BAIRD, 405 U.S. 438, ANOTHER
CONTRACEPTIVE CASE, WE EXPANDED THE CONCEPT OF GRISWOLD BY SAYING: 

     "IT IS TRUE THAT IN GRISWOLD THE RIGHT OF PRIVACY IN QUESTION

  INHERED IN THE MARITAL RELATIONSHIP.  YET THE MARITAL COUPLE IS

  NOT AN INDEPENDENT ENTITY WITH A MIND AND HEART OF ITS OWN, BUT

  AN ASSOCIATION OF TWO INDIVIDUALS EACH WITH A SEPARATE

  INTELLECTUAL AND EMOTIONAL MAKEUP.  IF THE RIGHT OF PRIVACY MEANS

  ANYTHING, IT IS THE RIGHT OF THE INDIVIDUAL, MARRIED OR SINGLE,

  TO BE FREE FROM UNWARRANTED GOVERNMENTAL INTRUSION INTO MATTERS

  SO FUNDAMENTALLY AFFECTING A PERSON AS THE DECISION WHETHER TO

  BEAR OR BEGET A CHILD."  ID., AT 453. 

THIS RIGHT OF PRIVACY WAS CALLED BY MR. JUSTICE BRANDEIS THE RIGHT
"TO BE LET ALONE."  OLMSTEAD V. UNITED STATES, 277 U.S. 438, 478
(DISSENTING OPINION).  THAT RIGHT INCLUDES THE PRIVILEGE OF AN
INDIVIDUAL TO PLAN HIS OWN AFFAIRS, FOR, "'OUTSIDE AREAS OF PLAINLY
HARMFUL CONDUCT, EVERY AMERICAN IS LEFT TO SHAPE HIS OWN LIFE AS HE
THINKS BEST, DO WHAT HE PLEASES, GO WHERE HE PLEASES.'"  KENT V.
DULLES, 357 U.S. 116, 126. 

THIRD IS THE FREEDOM TO CARE FOR ONE'S HEALTH AND PERSON, FREEDOM
FROM BODILY RESTRAINT OR COMPULSION, FREEDOM TO WALK, STROLL, OR LOAF. 

THESE RIGHTS, THOUGH FUNDAMENTAL, ARE LIKEWISE SUBJECT TO REGULATION
ON A SHOWING OF "COMPELLING STATE INTEREST."  WE STATED IN PAPACHRISTOU
V. CITY OF JACKSONVILLE, 405 U.S. 156, 164, THAT WALKING, STROLLING,
AND WANDERING "ARE HISTORICALLY PART OF THE AMENITIES OF LIFE AS WE
HAVE KNOWN THEM."  AS STATED IN JACOBSON V. MASSACHUSETTS, 197 U.S. 11,
29: 

     "THERE IS, OF COURSE, A SPHERE WITHIN WHICH THE INDIVIDUAL MAY

  ASSERT THE SUPREMACY OF HIS OWN WILL AND RIGHTFULLY DISPUTE THE

  AUTHORITY OF ANY HUMAN GOVERNMENT, ESPECIALLY OF ANY FREE

GOVERNMENT EXISTING UNDER A WRITTEN CONSTITUTION, TO INTERFERE

  WITH THE EXERCISE OF THAT WILL." 

IN UNION PACIFIC R. CO. V. BOTSFORD, 141 U.S. 250, 252, THE COURT
SAID, "THE INVIOLABILITY OF THE PERSON IS AS MUCH INVADED BY A
COMPULSORY STRIPPING AND EXPOSURE AS BY A BLOW." 

IN TERRY V. OHIO, 392 U.S. 1, 8-9, THE COURT, IN SPEAKING OF THE
FOURTH AMENDMENT STATED, "THIS INESTIMABLE RIGHT OF PERSONAL SECURITY
BELONGS AS MUCH TO THE CITIZEN ON THE STREETS OF OUR CITIES AS TO THE
HOMEOWNER CLOSETED IN HIS STUDY TO DISPOSE OF HIS SECRET AFFAIRS." 

KATZ V. UNITED STATES, 389 U.S. 347, 350, EMPHASIZES THAT THE FOURTH
AMENDMENT "PROTECTS INDIVIDUAL PRIVACY AGAINST CERTAIN KINDS OF
GOVERNMENTAL INTRUSION." 

IN MEYER V. NEBRASKA, 262 U.S. 390, 399, THE COURT SAID: 

     "WITHOUT DOUBT, (LIBERTY) DENOTES NOT MERELY FREEDOM FROM

  BODILY RESTRAINT BUT ALSO THE RIGHT OF THE INDIVIDUAL TO

  CONTRACT, TO ENGAGE IN ANY OF THE COMMON OCCUPATIONS OF LIFE, TO

  ACQUIRE USEFUL KNOWLEDGE, TO MARRY, ESTABLISH A HOME AND BRING UP

CHILDREN, TO WORSHIP GOD ACCORDING TO THE DICTATES OF HIS OWN

  CONSCIENCE, AND GENERALLY TO ENJOY THOSE PRIVILEGES LONG

  RECOGNIZED AT COMMON LAW AS ESSENTIAL TO THE ORDERLY PURSUIT OF

  HAPPINESS BY FREE MEN." 

THE GEORGIA STATUTE IS AT WAR WITH THE CLEAR MESSAGE OF THESE CASES-
THAT A WOMAN IS FREE TO MAKE THE BASIC DECISION WHETHER TO BEAR AN
UNWANTED CHILD.  ELABORATE ARGUMENT IS HARDLY NECESSARY TO DEMONSTRATE
THAT CHILDBIRTH MAY DEPRIVE A WOMAN OF HER PREFERRED LIFESTYLE AND
FORCE UPON HER A RADICALLY DIFFERENT AND UNDESIRED FUTURE.  FOR
EXAMPLE, REJECTED APPLICANTS UNDER THE GEORGIA STATUTE ARE REQUIRED TO
ENDURE THE DISCOMFORTS OF PREGNANCY; TO INCUR THE PAIN, HIGHER
MORTALITY RATE, AND AFTEREFFECTS OF CHILDBIRTH; TO ABANDON EDUCATIONAL
PLANTS; TO SUSTAIN LOSS OF INCOME; TO FORGO THE SATISFACTIONS OF
CAREERS; TO TAX FURTHER MENTAL AND PHYSICAL HEALTH IN PROVIDING CHILD
CARE; AND, IN SOME CASES, TO BEAR THE LIFELONG STIGMA OF UNWED
MOTHERHOOD, A BADGE WHICH MAY HAUNT, IF NOT DETER, LATER LEGITIMATE
FAMILY RELATIONSHIPS. 

       II 

SUCH REASONING IS, HOWEVER, ONLY THE BEGINNING OF THE PROBLEM.  THE
STATE HAS INTERESTS TO PROTECT.  VACCINATIONS TO PREVENT EPIDEMICS ARE
ONE EXAMPLE, AS JACOBSON, SUPRA, HOLDS.  THE COURT HELD THAT COMPULSORY
STERILIZATION OF IMBECILES AFFLICTED WITH HEREDITARY FORMS OF INSANITY
OR IMBECILITY IS ANOTHER.  BUCK V. BELL, 274 U.S. 200.  ABORTION
AFFECTS ANOTHER.  WHILE CHILDBIRTH ENDANGERS THE LIVES OF SOME WOMEN,
VOLUNTARY ABORTION AT ANY TIME AND PLACE REGARDLESS OF MEDICAL
STANDARDS WOULD IMPINGE ON A RIGHTFUL CONCERN OF SOCIETY.  THE WOMAN'S
HEALTH IS PART OF THAT CONCERN; AS IS THE LIFE OF THE FETUS AFTER
QUICKENING.  THESE CONCERNS JUSTIFY THE STATE IN TREATING THE PROCEDURE
AS A MEDICAL ONE. 

ONE DIFFICULTY IS THAT THIS STATUTE AS CONSTRUED AND APPLIED
APPARENTLY DOES NOT GIVE FULL SWEEP TO THE "PSYCHOLOGICAL AS WELL AS
PHYSICAL WELL-BEING" OF WOMEN PATIENTS WHICH SAVED THE CONCEPT "HEALTH"
FROM BEING VOID FOR VAGUENESS IN UNITED STATES V. VUITCH, 402 U.S.,AT
72.  BUT, APART FROM THAT, GEORGIA'S ENACTMENT HAS A CONSTITUTIONAL
INFIRMITY BECAUSE, AS STATED BY THE DISTRICT COURT, IT "LIMITS THE
NUMBER OF REASONS FOR WHICH AN ABORTION MAY BE SOUGHT."  I AGREE WITH
THE HOLDING OF THE DISTRICT COURT, "THIS THE STATE MAY NOT DO, BECAUSE
SUCH ACTION UNDULY RESTRICTS A DECISION SHELTERED BY THE CONSTITUTIONAL
RIGHT TO PRIVACY."  319 F.SUPP.,AT 1058. 

THE VICISSITUDES OF LIFE PRODUCE PREGNANCIES WHICH MAY BE UNWANTED,
OR WHICH MAY IMPAIR "HEALTH" IN THE BROAD VUITCH SENSE OF THE TERM, OR
WHICH MAY IMPERIL THE LIFE OF THE MOTHER, OR WHICH IN THE FULL SETTING
OF THE CASE MAY CREATE SUCH SUFFERING, DISLOCATIONS, MISERY, OR TRAGEDY
AS TO MAKE AN EARLY ABORTION THE ONLY CIVILIZED STEP TO TAKE.  THESE
HARDSHIPS MAY BE PROPERLY EMBRACED IN THE "HEALTH" FACTOR OF THE MOTHER
AS APPRAISED BY A PERSON OF INSIGHT.  OR THEY MAY BE PART OF A BROADER
MEDICAL JUDGMENT BASED ON WHAT IS "APPROPRIATE" IN A GIVEN CASE, THOUGH
PERHAPS NOT "NECESSARY" IN A STRICT SENSE. 

THE "LIBERTY" OF THE MOTHER, THOUGH ROOTED AS IT IS IN THE
CONSTITUTION, MAY BE QUALIFIED BY THE STATE FOR THE REASONS WE HAVE
STATED.  BUT WHERE FUNDAMENTAL PERSONAL RIGHTS AND LIBERTIES ARE
INVOLVED, THE CORRECTIVE LEGISLATION MUST BE "NARROWLY DRAWN TO PREVENT
THE SUPPOSED EVIL," CANTWELL V. CONNECTICUT, 310 U.S. 296, 307, AND NOT
BE DEALT WITH IN AN "UNLIMITED AND INDISCRIMINATE" MANNER.  SHELTON V.
TUCKER, 364 U.S. 479, 490.  AND SEE TALLEY V. CALIFORNIA, 362 U.S. 60. 
UNLESS REGULATORY MEASURES ARE SO CONFINED AND ARE ADDRESSED TO THE
SPECIFIC AREAS OF COMPELLING LEGISLATIVE CONCERN, THE POLICE POWER
WOULD BECOME THE GREAT LEVELER OF CONSTITUTIONAL RIGHTS AND LIBERTIES. 

THERE IS NO DOUBT THAT THE STATE MAY REQUIRE ABORTIONS TO BE
PERFORMED BY QUALIFIED MEDICAL PERSONNEL.  THE LEGITIMATE OBJECTIVE OF
PRESERVING THE MOTHER'S HEALTH CLEARLY SUPPORTS SUCH LAWS.  THEIR
IMPACT UPON THE WOMAN'S PRIVACY IS MINIMAL.  BUT THE GEORGIA STATUTE
OUTLAWS VIRTUALLY ALL SUCH OPERATIONS-- EVEN IN THE EARLIEST STAGES OF
PREGNANCY.  IN LIGHT OF MODERN MEDICAL EVIDENCE SUGGESTING THAT AN
EARLY ABORTION IS SAFER HEALTHWISE THAN CHILDBIRTH ITSELF, /5/  IT
CANNOT BE SERIOUSLY URGED THAT SO COMPREHENSIVE A BAN IS AIMED AT
PROTECTING THE WOMAN'S HEALTH.  RATHER, THIS EXPANSIVE PROSCRIPTION OF
ALL ABORTIONS ALONG THE TEMPORAL SPECTRUM CAN REST ONLY ON A PUBLIC
GOAL OF PRESERVING BOTH EMBRYONIC AND FETAL LIFE. 

THE PRESENT STATUTE HAS STRUCK THE BALANCE BETWEEN THE WOMAN'S AND
THE STATE'S INTERESTS WHOLLY IN FAVOR OF THE LATTER.  I AM NOT PREPARED
TO HOLD THAT A STATE MAY EQUATE, AS GEORGIA HAS DONE, ALL PHASES OF
MATURATION PRECEDING BIRTH.  WE HELD IN GRISWOLD THAT THE STATES MAY
NOT PRECLUDE SPOUSES FROM ATTEMPTING TO AVOID THE JOINDER OF SPERM AND
EGG.  IF THIS IS TRUE, IT IS DIFFICULT TO PERCEIVE ANY OVERRIDING
PUBLIC NECESSITY WHICH MIGHT ATTACH PRECISELY AT THE MOMENT OF
CONCEPTION.  AS MR. JUSTICE CLARK HAS SAID:  /6/ 

"TO SAY THAT LIFE IS PRESENT AT CONCEPTION IS TO GIVE

  RECOGNITION TO THE POTENTIAL, RATHER THAN THE ACTUAL.  THE

UNFERTILIZED EGG HAS LIFE, AND IF FERTILIZED, IT TAKES ON HUMAN

  PROPORTIONS.  BUT THE LAW DEALS IN REALITY, NOT OBSCURITY-- THE

  KNOWN RATHER THAN THE UNKNOWN.  WHEN SPERM MEETS EGG LIFE MAY

  EVENTUALLY FORM, BUT QUITE OFTEN IT DOES NOT.  THE LAW DOES NOT

  DEAL IN SPECULATION.  THE PHENOMENON OF LIFE TAKES TIME TO

  DEVELOP, AND UNTIL IT IS ACTUALLY PRESENT, IT CANNOT BE

  DESTROYED.  ITS INTERRUPTION PRIOR TO FORMATION WOULD HARDLY BE

  HOMICIDE, AND AS WE HAVE SEEN, SOCIETY DOES NOT REGARD IT AS

  SUCH.  THE RITES OF BAPTISM ARE NOT PERFORMED AND DEATH

  CERTIFICATES ARE NOT REQUIRED WHEN A MISCARRIAGE OCCURS.  NO

  PROSECUTOR HAS EVER RETURNED A MURDER INDICTMENT CHARGING THE

  TAKING OF THE LIFE OF A FETUS.  /7/  THIS WOULD NOT BE THE CASE

IF THE FETUS CONSTITUTED HUMAN LIFE." 

IN SUMMARY, THE ENACTMENT IS OVERBROAD.  IT IS NOT CLOSELY
CORRELATED TO THE AIM OF PRESERVING PRENATAL LIFE.  IN FACT, IT PERMITS
ITS DESTRUCTION IN SEVERAL CASES, INCLUDING PREGNANCIES RESULTING FROM
SEX ACTS IN WHICH UNMARRIED FEMALES ARE BELOW THE STATUTORY AGE OF
CONSENT.  AT THE SAME TIME, HOWEVER, THE MEASURE BROADLY PROSCRIBES
ABORTING OTHER PREGNANCIES WHICH MAY CAUSE SEVERE MENTAL DISORDERS. 
ADDITIONALLY, THE STATUTE IS OVERBROAD BECAUSE IT EQUATES THE VALUE OF
EMBRYONIC LIFE IMMEDIATELY AFTER CONCEPTION WITH THE WORTH OF LIFE
IMMEDIATELY BEFORE BIRTH. 

III 

UNDER THE GEORGIA ACT, THE MOTHER'S PHYSICIAN IS NOT THE SOLE JUDGE
AS TO WHETHER THE ABORTION SHOULD BE PERFORMED.  TWO OTHER LICENSES
PHYSICIANS MUST CONCUR IN HIS JUDGMENT.  /8/  MOREOVER, THE ABORTION
MUST BE PERFORMED IN A LICENSED HOSPITAL; /9/  AND THE ABORTION MUST BE
APPROVED IN ADVANCE BY A COMMITTEE OF THE MEDICAL STAFF OF THAT
HOSPITAL.  /10/ 

PHYSICIANS, WHO SPEAK TO US IN DOE THROUGH AN AMICUS BRIEF, COMPLAIN
OF THE GEORGIA ACT'S INTERFERENCE WITH THEIR PRACTICE OF THEIR
PROFESSION. 

THE RIGHT OF PRIVACY HAS NO MORE CONSPICUOUS PLACE THAN IN THE
PHYSICIAN-PATIENT RELATIONSHIP, UNLESS IT BE IN THE PRIEST-PENITENT
RELATIONSHIP. 

IT IS ONE THING FOR A PATIENT TO AGREE THAT HER PHYSICIAN MAY
CONSULT WITH ANOTHER PHYSICIAN ABOUT HER CASE.  IT IS QUITE A DIFFERENT
MATTER FOR THE STATE COMPULSORILY TO IMPOSE ON THAT PHYSICIAN-PATIENT
RELATIONSHIP ANOTHER LAYER OR, AS IN THIS CASE, STILL A THIRD LAYER OF
PHYSICIANS.  THE RIGHT OF PRIVACY-- THE RIGHT TO CARE FOR ONE'S HEALTH
AND PERSON AND TO SEEK OUT A PHYSICIAN OF ONE'S OWN CHOICE PROTECTED BY
THE FOURTEENTH AMENDMENT-- BECOMES ONLY A MATTER OF THEORY, NOT A
REALITY, WHEN A MULTIPLE-- PHYSICIAN-- APPROVAL SYSTEM IS MANDATED BY
THE STATE. 

THE STATE LICENSES A PHYSICIAN.  IF HE IS DERELICT OR FAITHLESS, THE
PROCEDURES AVAILABLE TO PUNISH HIM OR TO DEPRIVE HIM OF HIS LICENSE ARE
WELL KNOWN.  HE IS ENTITLED TO PROCEDURAL DUE PROCESS BEFORE
PROFESSIONAL DISCIPLINARY SANCTIONS MAY BE IMPOSED.  SEE IN RE RUFFALO,
390 U.S. 544.  CRUCIAL HERE, HOWEVER, IS STATE-IMPOSED CONTROL OVER THE
MEDICAL DECISION WHETHER PREGNANCY SHOULD BE INTERRUPTED.  THE GOOD
FAITH DECISION OF THE PATIENT'S CHOSEN PHYSICIAN IS OVERRIDDEN AND THE
FINAL DECISION PASSED ON TO OTHERS IN WHOSE SELECTION THE PATIENT HAS
NO PART.  THIS IS A TOTAL DESTRUCTION OF THE RIGHT OF PRIVACY BETWEEN
PHYSICIAN AND PATIENT AND THE INTIMACY OF RELATION WHICH THAT ENTAILS. 
THE RIGHT TO SEEK ADVICE ON ONE'S HEALTH AND THE RIGHT TO PLACE
RELIANCE ON THE PHYSICIAN OF ONE'S CHOICE ARE BASIC TO FOURTEENTH
AMENDMENT VALUES.  WE DEAL WITH FUNDAMENTAL RIGHTS AND LIBERTIES,
WHICH, AS ALREADY NOTED, CAN BE CONTAINED OR CONTROLLED ONLY BE
DISCRETELY DRAWN LEGISLATION THAT PRESERVES THE "LIBERTY" AND REGULATES
ONLY THOSE PHASES OF THE PROBLEM OF COMPELLING LEGISLATIVE CONCERN. 
THE IMPOSITION BY THE STATE OF GROUP CONTROLS OVER THE PHYSICIAN
PATIENT RELATIONSHIP IS NOT MADE ON ANY MEDICAL PROCEDURE APART FROM
ABORTION, NO MATTER HOW DANGEROUS THE MEDICAL STEP MAY BE.  THE
OVERSIGHT IMPOSED ON THE PHYSICIAN AND PATIENT IN ABORTION CASES DENIES
THEM THEIR "LIBERTY," VIZ., THEIR RIGHT OF PRIVACY, WITHOUT ANY
COMPELLING, DISCERNIBLE STATE INTEREST. 

GEORGIA HAS CONSTITUTIONAL WARRANT IN TREATING ABORTION AS A MEDICAL
PROBLEM.  TO PROTECT THE WOMAN'S RIGHT OF PRIVACY, HOWEVER, THE CONTROL
MUST BE THROUGH THE PHYSICIAN OF HER CHOICE AND THE STANDARDS SET FOR
HIS PERFORMANCE. 

THE PROTECTION OF THE FETUS WHEN IS HAS ACQUIRED LIFE IS A
LEGITIMATE CONCERN OF THE STATE.  GEORGIA'S LAW MAKES NO RATIONAL,
DISCERNIBLE DECISION ON THAT SCORE.  /11/  FOR UNDER THE CODE, THE
DEVELOPMENTAL STAGE OF THE FETUS IS IRRELEVANT WHEN PREGNANCY IS THE
RESULT OF RAPE, WHEN THE FETUS WILL VERY LIKELY BE BORN WITH A
PERMANENT DEFECT, OR WHEN A CONTINUATION OF THE PREGNANCY WILL ENDANGER
THE LIFE OF THE MOTHER OR PERMANENTLY INJURE HER HEALTH.  WHEN LIFE IS
PRESENT IS A QUESTION WE DO NOT TRY TO RESOLVE.  WHILE BASICALLY A
QUESTION FOR MEDICAL EXPERTS, AS STATED BY JR. JUSTICE CLARK, /12/  IT
IS, OF COURSE, CAUGHT UP IN MATTERS OF RELIGION AND MORALITY. 

IN SHORT, I AGREE WITH THE COURT THAT ENDANGERING THE LIFE OF THE
WOMAN OR SERIOUSLY AND PERMANENTLY INJURING HER HEALTH ARE STANDARDS
TOO NARROW FOR THE RIGHT OF PRIVACY THAT IS AT STAKE. 

I ALSO AGREE THAT THE SUPERSTRUCTURE OF MEDICAL SUPERVISION WHICH
GEORGIA HAS ERECTED VIOLATES THE PATIENT'S RIGHT OF PRIVACY INHERENT IN
HER CHOICE OF HER OWN PHYSICIAN. 

/0/  (THIS OPINION APPLIES ALSO TO NO. 70-18, ROE V. WADE, ANTE, P.
113.) 

/1/  I DISAGREE WITH THE DISMISSAL OF DR. HALLFORD'S COMPLAINT IN
INTERVENTION IN ROE V. WADE, ANTE, P. 113, BECAUSE MY DISAGREEMENT WITH
YOUNGER V. HARRIS, 401 U.S. 37, REVEALED IN MY DISSENT IN THAT CASE,
STILL PERSISTS AND EXTENDS TO THE PROGENY OF THAT CASE. 

/2/  THERE IS NO MENTION OF PRIVACY IN OUR BILL OF RIGHTS BUT OUR
DECISIONS HAVE RECOGNIZED IT AS ONE OF THE FUNDAMENTAL VALUES THOSE
AMENDMENTS WERE DESIGNED TO PROTECT.  THE FOUNTAINHEAD CASE IS BOYD V.
UNITED STATES, 116 U.S. 616, HOLDING THAT A FEDERAL STATUTE WHICH
AUTHORIZED A COURT IN TAX CASES TO REQUIRE A TAXPAYER TO PRODUCE HIS
RECORDS OR TO CONCEDE THE GOVERNMENT'S ALLEGATIONS OFFENDED THE FOURTH
AND FIFTH AMENDMENTS.  MR. JUSTICE BRADLEY, FOR THE COURT, FOUND THAT
THE MEASURE UNDULY INTRUDED INTO THE "SANCTITY OF A MAN'S HOME AND THE
PRIVACIES OF LIFE."  ID., AT 630.  PRIOR TO BOYD, IN KILBOURN V.
THOMPSON, 103 U.S. 168, 190, MR. JUSTICE MILLER HELD FOR THE COURT THAT
NEITHER HOUSE OF CONGRESS "POSSESSES THE GENERAL POWER OF MAKING
INQUIRY INTO THE PRIVATE AFFAIRS OF THE CITIZEN."  OF KILBOURN, MR.
JUSTICE FIELD LATER SAID, "THIS CASE WILL STAND FOR ALL TIME AS A
BULWARK AGAINST THE INVASION OF THE RIGHT OF THE CITIZEN TO PROTECTION
IN HIS PRIVATE AFFAIRS AGAINST THE UNLIMITED SCRUTINY OF INVESTIGATION
BY A CONGRESSIONAL COMMITTEE."  IN RE PACIFIC RAILWAY COMM'N, 32 F.
241, 253 (CITED WITH APPROVAL IN SINCLAIR V. UNITED STATES, 279 U.S.
263, 293).  MR. JUSTICE HARLAN, ALSO SPEAKING FOR THE COURT, IN ICC V.
BRIMSON, 154 U.S. 447, 478, THOUGHT THE SAME WAS TRUE OF ADMINISTRATIVE
INQUIRES, SAYING THAT THE CONSTITUTION DID NOT PERMIT A "GENERAL POWER
OF MAKING INQUIRY INTO THE PRIVATE AFFAIRS OF THE CITIZEN."  IN A
SIMILAR VEIN WERE HARRIMAN V. ICC, 211 U.S. 407; UNITED STATES V.
LOUISVILLE & NASHVILLE R. CO., 236 U.S. 318, 335; AND FTC V. AMERICAN
TOBACCO CO., 274 U.S. 298. 

/3/  THE CALIFORNIA ABORTION STATUTE, HELD UNCONSTITUTIONAL IN THE
BELOUS CASE, MADE IT A CRIME TO PERFORM OR HELP PERFORM AN ABORTION
"UNLESS THE SAME IS NECESSARY TO PRESERVE (THE MOTHER'S) LIFE."  71
CAL.2D, AT 959, 458 P.2D, AT 197. 

/4/  MY BROTHER STEWART, WRITING IN ROE V. WADE, SUPRA, SAYS THAT
OUR DECISION IN GRISWOLD REINTRODUCED SUBSTANTIVE DUE PROCESS THAT HAD
BEEN REJECTED IN FERGUSON V. SKRUPA, 372 U.S. 726.  SKRUPA INVOLVED
LEGISLATION GOVERNING A BUSINESS ENTERPRISE; AND THE COURT IN THAT
CASE, AS HAD MR. JUSTICE HOLMES ON EARLIER OCCASIONS, REJECTED THE IDEA
THAT "LIBERTY" WITHIN THE MEANING OF THE DUE PROCESS CALUSE OF THE
FOURTEENTH AMENDMENT WAS A VESSEL TO BE FILLED WITH ONE'S PERSONAL
CHOICES OF VALUES, WHETHER DRAWN FROM THE LAISSEZ FAIRE SCHOOL, FROM
THE SOCIALISTIC SCHOOL, OR FROM THE TECHNOCRATS.  GRISWOLD INVOLVED
LEGISLATION TOUCHING ON THE MARITAL RELATION AND INVOLVING THE
CONVICTION OF A LICENSES PHYSICIAN FOR GIVING MARRIED PEOPLE
INFORMATION CONCERNING CONTRACEPTION.  THERE IS NOTHING SPECIFIC IN THE
BILL OF RIGHTS THAT COVERS THAT ITEM.  NOR IS THERE ANYTHING IN THE
BILL OF RIGHTS THAT IN TERMS PROTECTS THE RIGHT OF ASSOCIATION OR THE
PRIVACY IN ONE'S ASSOCIATION.  YET WE FOUND THOSE RIGHTS IN THE
PERIPHERY OF THE FIRST AMENDMENT.  NAACP V. ALABAMA, 357 U.S. 449,
462.  OTHER PERIPHERAL RIGHTS ARE THE RIGHT TO EDUCATE ONE'S CHILDREN
AS ONE CHOOSES, PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, AND THE
RIGHT TO STUDY THE GERMAN LANGUAGE, MEYER V. NEBRASKA, 262 U.S. 390. 
THESE DECISIONS, WITH ALL RESPECT, HAVE NOTHING TO DO WITH SUBSTANTIVE
DUE PROCESS.  ONE MAY THINK THEY ARE NOT PERIPHERAL TO OTHER RIGHTS
THAT ARE EXPRESSED IN THE BILL OF RIGHTS.  BUT THAT IS NOT ENOUGH TO
BRING INTO PLAY THE PROTECTION OF SUBSTANTIVE DUE PROCESS. 

THERE ARE, OF COURSE, THOSE WHO HAVE BELIEVED THAT THE REACH OF DUE
PROCESS IN THE FOURTEENTH AMENDMENT INCLUDED ALL OF THE BILL OF RIGHTS
BUT WENT FURTHER.  SUCH WAS THE VIEW OF MR. JUSTICE MURPHY AND MR.
JUSTICE RUTLEDGE.  SEE ADAMSON V. CALIFORNIA, 332 U.S. 46, 123, 124
(DISSENTING OPINION).  PERHAPS THEY WERE RIGHT; BUT IT IS A BRIDGE THAT
NEITHER I NOR THOSE WHO JOINED THE COURT'S OPINION IN GRISWOLD
CROSSED. 

/5/  MANY STUDIES SHOW THAT IT IS SAFER FOR A WOMAN TO HAVE A
MEDICALLY INDUCED ABORTION THAN TO BEAR A CHILD.  IN THE FIRST 11
MONTHS OF OPERATION OF THE NEW YORK ABORTION LAW, THE MORTALITY RATE
ASSOCIATED WITH SUCH OPERATIONS WAS SIX PER 100,000 OPERATIONS. 
ABORTION MORTALITY, 20 MORBIDITY AND MORTALITY 208, 209 (JUNE 1971)
(U.S. DEPT. OF HEW, PUBLIC HEALTH SERVICE).  ON THE OTHER HAND, THE
MATERNAL MORTALITY RATE ASSOCIATED WITH CHILDBIRTHS OTHER THAN
ABORTIONS WAS 18 PER 100,000 LIVE BIRTHS.  TIETZE, MORTALITY WITH
CONTRACEPTION AND INDUCED ABORTION, 45 STUDIES IN FAMILY PLANNING
6(1969).  SEE ALSO TIETZE & LEHFELDT, LEGAL ABORTION IN EASTERN EUROPE,
175 J.A.M.A. 1149, 1152 (APR. 1961); KOLBLOVA, LEGAL ABORTION IN
CZECHOSLOVAKIA, 196 J.A.M.A. 317 (APR. 1966); MEHLAND, COMBATING
ILLEGAL ABORTION IN THE SOCIALIST COUNTRIES OF EUROPE, 13 WORLD MED.J.
84 (1966). 

/6/  RELIGION, MORALITY, AND ABORTION:  A CONSTITUTIONAL APPRAISAL,
2 LOYOLA U.(L.A.L.REV.  1, 9-10 (1969). 

/7/  IN KEELER V. SUPERIOR COURT, 2 CAL.3D 619, 470 P.2D 618, THE
CALIFORNIA SUPREME COURT HELD IN 1970 THAT THE CALIFORNIA MURDER
STATUTE DID NOT COVER THE KILLING OF AN UNBORN FETUS, EVEN THOUGH THE
FETUS BE "VIABLE," AND THAT IT WAS BEYOND JUDICIAL POWER TO EXTEND THE
STATUTE TO THE KILLING OF AN UNBORN.  IT HELD THAT THE CHILD MUST BE
"BORN ALIVE BEFORE A CHARGE OF HOMICIDE CAN BE SUSTAINED."  ID., AT
639, 470 P.2D, AT 630. 

/8/  SEE GA. CODE ANN. SEC. 26-1202(B)(3). 

/9/  SEE ID., SEC. 26-1202(B)(4). 

/10/  ID., SEC. 26-1202(B)(5). 

/11/  SEE ROCHAT, TYLER, & SCHOENBUCHER, AN EPIDEMIOLOGICAL ANALYSIS
OF ABORTION IN GEORGIA, 61 AM.J.OF PUBLIC HEALTH 543 (1971). 

/12/  SUPRA, N. 6, AT 10. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING.  /0/ 

AT THE HEART OF THE CONTROVERSY IN THESE CASES ARE THOSE RECURRING
PREGNANCIES THAT POSE NO DANGER WHATSOEVER TO THE LIFE OR HEALTH OF THE
MOTHER BUT ARE, NEVERTHELESS, UNWANTED FOR ANY ONE OR MORE OF A VARIETY
OF REASONS-- CONVENIENCE, FAMILY PLANNING, ECONOMICS, DISLIKE OF
CHILDREN, THE EMBARRASSMENT OF ILLEGITIMACY, ETC.  THE COMMON CLAIM
BEFORE US IS THAT FOR ANY ONE OF SUCH REASONS, OR FOR NO REASON AT ALL,
AND WITHOUT ASSERTING OR CLAIMING ANY THREAT TO LIFE OR HEALTH, ANY
WOMAN IS ENTITLED TO AN ABORTION AT HER REQUEST IF SHE IS ABLE TO FIND
A MEDICAL ADVISOR WILLING TO UNDERTAKE THE PROCEDURE. 

THE COURT FOR THE MOST PART SUSTAINS THIS POSITION:  DURING THE
PERIOD PRIOR TO THE TIME THE FETUS BECOMES VIABLE, THE CONSTITUTION OF
THE UNITED STATES VALUES THE CONVENIENCE, WHIM, OR CAPRICE OF THE
PUTATIVE MOTHER MORE THAN THE LIFE OR POTENTIAL LIFE OF THE FETUS; THE
CONSTITUTION, THEREFORE, GUARANTEES THE RIGHT TO AN ABORTION AS AGAINST
ANY STATE LAW OR POLICY SEEKING TO PROTECT THE FETUS FROM AN ABORTION
NOT PROMPTED BY MORE COMPELLING REASONS OF THE MOTHER. 

WITH ALL DUE RESPECT, I DISSENT.  I FIND NOTHING IN THE LANGUAGE OR
HISTORY OF THE CONSTITUTION TO SUPPORT THE COURT'S JUDGMENT.  THE COURT
SIMPLY FASHIONS AND ANNOUNCES A NEW CONSTITUTIONAL RIGHT FOR PREGNANT
MOTHERS AND, WITH SCARCELY ANY REASON OR AUTHORITY FOR ITS ACTION,
INVESTS THAT RIGHT WITH SUFFICIENT SUBSTANCE TO OVERRIDE MOST EXISTING
STATE ABORTION STATUTES.  THE UPSHOT IS THAT THE PEOPLE AND THE
LEGISLATURES OF THE 50 STATES ARE CONSTITUTIONALLY DISENTITLED TO WEIGH
THE RELATIVE IMPORTANCE OF THE CONTINUED EXISTENCE AND DEVELOPMENT OF
THE FETUS, ON THE ONE HAND, AGAINST A SPECTRUM OF POSSIBLE IMPACTS ON
THE MOTHER, ON THE OTHER HAND.  AS AN EXERCISE OF RAW JUDICIAL POWER,
THE COURT PERHAPS HAS AUTHORITY TO DO WHAT IT DOES TODAY; BUT IN MY
VIEW ITS JUDGMENT IS AN IMPROVIDENT AND EXTRAVAGANT EXERCISE OF THE
POWER OF JUDICIAL REVIEW THAT THE CONSTITUTION EXTENDS TO THIS COURT. 

THE COURT APPARENTLY VALUES THE CONVENIENCE OF THE PREGNANT MOTHER
MORE THAN THE CONTINUED EXISTENCE AND DEVELOPMENT OF THE LIFE OR
POTENTIAL LIFE THAT SHE CARRIES.  WHETHER OR NOT I MIGHT AGREE WITH
THAT MARSHALING OF VALUES, I CAN IN NO EVENT JOIN THE COURT'S JUDGMENT
BECAUSE I FIND NO CONSTITUTIONAL WARRANT FOR IMPOSING SUCH AN ORDER OF
PRIORITIES ON THE PEOPLE AND LEGISLATURES OF THE STATES.  IN A
SENSITIVE AREA SUCH AS THIS, INVOLVING AS IT DOES ISSUES OVER WHICH
REASONABLE MEN MAY EASILY AND HEATEDLY DIFFER, I CANNOT ACCEPT THE
COURT'S EXERCISE OF ITS CLEAR POWER OF CHOICE BY INTERPOSING A
CONSTITUTIONAL BARRIER TO STATE EFFORTS TO PROTECT HUMAN LIFE AND BY
INVESTING MOTHERS AND DOCTORS WITH THE CONSTITUTIONALLY PROTECTED RIGHT
TO EXTERMINATE IT.  THIS ISSUE, FOR THE MOST PART, SHOULD BE LEFT WITH
THE PEOPLE AND TO THE POLITICAL PROCESSES THE PEOPLE HAVE DEVISED TO
GOVERN THEIR AFFAIRS. 

IT IS MY VIEW, THEREFORE, THAT THE TEXAS STATUTE IS NOT
CONSTITUTIONALLY INFIRM BECAUSE IT DENIES ABORTIONS TO THOSE WHO SEEK
TO SERVE ONLY THEIR CONVENIENCE RATHER THAN TO PROTECT THEIR LIFE OR
HEALTH.  NOR IS THIS PLAINTIFF, WHO CLAIMS NO THREAT TO HER MENTAL OR
PHYSICAL HEALTH, ENTITLED TO ASSERT THE POSSIBLE RIGHTS OF THOSE WOMEN
WHOSE PREGNANCY ASSERTEDLY IMPLICATES THEIR HEALTH.  THIS, TOGETHER
WITH UNITED STATES V. VUITCH, 402 U.S. 62 (1971), DICTATES REVERSAL OF
THE JUDGMENT OF THE DISTRICT COURT. 

LIKEWISE, BECAUSE GEORGIA MAY CONSTITUTIONALLY FORBID ABORTIONS TO
PUTATIVE MOTHERS WHO, LIKE THE PLAINTIFF IN THIS CASE, DO NOT FALL
WITHIN THE REACH OF SEC. 26-1202(A) OF ITS CRIMINAL CODE, I HAVE NO
OCCASION, AND THE DISTRICT COURT HAD NONE, TO CONSIDER THE
CONSTITUTIONALITY OF THE PROCEDURAL REQUIREMENTS OF THE GEORGIA STATUTE
AS APPLIED TO THOSE PREGNANCIES POSING SUBSTANTIAL HAZARDS TO EITHER
LIFE OR HEALTH.  I WOULD REVERSE THE JUDGMENT OF THE DISTRICT COURT IN
THE GEORGIA CASE. 

/0/  (THIS OPINION APPLIES ALSO TO NO. 70-18, ROE V. WADE, ANTE, P.
113.) 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE HOLDING IN ROE V. WADE, ANTE, P. 113, THAT STATE ABORTION LAWS
CAN WITHSTAND CONSTITUTIONAL SCRUTINY ONLY IF THE STATE CAN DEMONSTRATE
A COMPELLING STATE INTEREST, APPARENTLY COMPELS THE COURT'S CLOSE
SCRUTINY OF THE VARIOUS PROVISIONS IN GEORGIA'S ABORTION STATUTE. 
SINCE, AS INDICATED BY MY DISSENT IN WADE, I VIEW THE COMPELLING-STATE
INTEREST STANDARD AS AN INAPPROPRIATE MEASURE OF THE CONSTITUTIONALITY
OF STATE ABORTION LAWS, I RESPECTFULLY DISSENT FROM THE MAJORITY'S
HOLDING. 

MARGIE PITTS HAMES REARGUED THE CAUSE FOR APPELLANTS.  WITH HER ON
THE BRIEFS WERE REBER F. BOULT, JR., CHARLES MORGAN, JR., ELIZABETH
ROEDIGER RINDSKOPF, AND TOBIANE SCHWARTZ. 

DOROTHY T. BEASLEY REARGUED THE CAUSE FOR APPELLEES.  WITH HER ON
THE BRIEF WERE ARTHUR K. BOLTON, ATTORNEY GENERAL OF GEORGIA, HAROLD N.
HILL, JR., EXECUTIVE ASSISTANT ATTORNEY GENERAL, COURTNEY WILDER
STANTON, ASSISTANT ATTORNEY GENERAL, JOEL FELDMAN, HENRY L. BOWDEN, AND
RALPH H. WITT.  /0/
..END :

















UNITED STATES V. FLORIDA EAST COAST R. CO., 410 U.S. 224 


       UNITED STATES ET AL. V. FLORIDA EAST COAST RAILWAY CO. ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF FLORIDA

        NO. 70-279.  ARGUED DECEMBER 7, 1972-- DECIDED JANUARY 22,

           1973 


THE DISTRICT COURT RULED THAT APPELLEE RAILROADS WERE PREJUDICED BY
FAILURE OF THE INTERSTATE COMMERCE COMMISSION (ICC) TO HOLD ORAL
HEARINGS AS REQUIRED BY SECS. 556 AND 557 OF THE ADMINISTRATIVE
PROCEDURE ACT (APA) BEFORE ESTABLISHING INDUSTRY-WIDE PER DIEM RATES
FOR FREIGHT-CAR USE.  THE ICC DID RECEIVE WRITTEN SUBMISSIONS FROM
APPELLEES, BUT REFUSED TO CONDUCT THE HEARINGS REQUESTED BY APPELLEES
PRIOR TO COMPLETION OF ITS RULEMAKING.  HELD:  THE LANGUAGE OF SEC.
1(14)(A) OF THE INTERSTATE COMMERCE ACT THAT "(THE COMMISSION MAY,
AFTER HEARING . . . ESTABLISH REASONABLE RULES . . . " DID NOT TRIGGER
SECS. 556 AND 557 OF THE APA REQUIRING A TRIAL-TYPE HEARING AND THE
PRESENTATION OF ORAL ARGUMENT BY THE AFFECTED PARTIES; AND THE ICC'S
PROCEEDING WAS GOVERNED ONLY BY SEC. 553 OF THE APA REQUIRING NOTICE
PRIOR TO RULEMAKING.  UNITED STATES V. ALLEGHENY-LUDLUM STEEL CORP.,
406 U.S. 742.  NOR DOES THE "AFTER HEARING" LANGUAGE OF SEC. 1(14)(A)
OF THE INTERSTATE COMMERCE ACT BY ITSELF CONFER UPON INTERESTED PARTIES
EITHER THE RIGHT TO PRESENT EVIDENCE ORALLY AND TO CROSS-EXAMINE
OPPOSING WITNESSES, OR THE RIGHT TO PRESENT ORAL ARGUMENT TO THE
AGENCY'S DECISIONMAKER.  PP. 234-246. 

322 F.SUPP.  725, REVERSED AND REMANDED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED DOUGLAS,
J., FILED A DISSENTING OPINION, IN WHICH STEWART, J., JOINED, POST, P.
246.  POWELL, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

APPELLEES, TWO RAILROAD COMPANIES, BROUGHT THIS ACTION IN THE
DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TO SET ASIDE THE
INCENTIVE PER DIEM RATES ESTABLISHED BY APPELLANT INTERSTATE COMMERCE
COMMISSION IN A RULEMAKING PROCEEDING.  INCENTIVE PER DIEM CHARGES--
1968, EX PARTE NO. 252 (SUB-NO. 1), 337 I.C.C. 217 (1970).  THEY
CHALLENGED THE ORDER OF THE COMMISSION ON BOTH SUBSTANTIVE AND
PROCEDURAL GROUNDS.  THE DISTRICT COURT SUSTAINED APPELLEES' POSITION
THAT THE COMMISSION HAD FAILED TO COMPLY WITH THE APPLICABLE PROVISIONS
OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 551, ET SEQ., AND
THEREFORE SET ASIDE THE ORDER WITHOUT DEALING WITH THE RAILROADS' OTHER
CONTENTIONS.  THE DISTRICT COURT HELD THAT THE LANGUAGE OF SEC.
1(14)(A) /1/  OF THE INTERSTATE COMMERCE ACT, 24 STAT. 379, AS AMENDED,
49 U.S.C. 1(14)(A), REQUIRED THE COMMISION IN A PROCEEDING SUCH AS THIS
TO ACT IN ACCORDANCE WITH THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C.
556(D), AND THAT THE COMMISSION'S DETERMINATION TO RECEIVE SUBMISSIONS
FROM THE APPELLEES ONLY IN WRITTEN FORM WAS A VIOLATION OF THE SECTION
BECAUSE THE APPELLEES WERE "PREJUDICED" BY THAT DETERMINATION WITHIN
THE MEANING OF THAT SECTION. 

FOLLOWING OUR DECISION LAST TERM IN UNITED STATES V. ALLEGHENY
LUDLUM STEEL CORP., 406 U.S. 742 (1972), WE NOTED PROBABLE
JURISDICTION, 407 U.S. 908 (1972), AND REQUESTED THE PARTIES TO BRIEF
THE QUESTION OF WHETHER THE COMMISSION'S PROCEEDING WAS GOVERNED BY 5
U.S.C. 553, /2/  OR BY SECS. 556 /3/  AND 557, /4/  OF THE
ADMINISTRATIVE PROCEDURE ACT.  WE HERE DECIDE THAT THE COMMISSION'S
PROCEEDING WAS GOVERNED ONLY BY SEC. 553 OF THAT ACT, AND THAT
APPELLEES RECEIVED THE "HEARING"  REQUIRED BY SEC. 1(14)(A) OF THE
INTERSTATE COMMERCE ACT.  WE, THEREFORE, REVERSE THE JUDGMENT OF THE
DISTRICT COURT AND REMAND THE CASE TO THAT COURT FOR FURTHER
CONSIDERATION OF APPELLEES' OTHER CONTENTIONS THAT WERE RAISED THERE,
BUT WHICH WE DO NOT DECIDE. 

    I. BACKGROUND OF CHRONIC FREIGHT CAR SHORTAGES 

THIS CASE ARISES FROM THE FACTUAL BACKGROUND OF A CHRONIC FREIGHT
CAR SHORTAGE ON THE NATION'S RAILROADS, WHICH WE DESCRIBED IN UNITED
STATES V. ALLEGHENY-LUDLUM STEEL CORP., SUPRA.  JUDGE SIMPSON, WRITING
FOR THE DISTRICT COURT IN THIS CASE, NOTED THAT "(FOR A NUMBER OF YEARS
PORTIONS OF THE NATION HAVE BEEN PLAGUED WITH SEASONAL SHORTAGES OF
FREIGHT CARS IN WHICH TO SHIP GOODS."  322 F.SUPP.  725, 726 (MD FLA.
1971).  JUDGE FRIENDLY, WRITING FOR A THREE-JUDGE DISTRICT COURT IN THE
EASTERN DISTRICT OF NEW YORK IN THE RELATED CASE OF LONG ISLAND R. CO.
V. UNITED STATES, 318 F.SUPP.  490, 491 (EDNY 1970), DESCRIBED THE
COMMISSION'S ORDER AS "THE LATEST CHAPTER IN A LONG HISTORY OF FREIGHT
CAR SHORTAGES IN CERTAIN REGIONS AND SEASONS AND OF ATTEMPTS TO EASE
THEM."  CONGRESSIONAL CONCERN FOR THE PROBLEM WAS MANIFESTED IN THE
ENACTMENT IN 1966 OF AN AMENDMENT TO SEC. 1(14)(A) OF THE INTERSTATE
COMMERCE ACT, ENLARGING THE COMMISSION'S AUTHORITY TO PRESCRIBE PER
DIEM CHARGES FOR THE USE BY ONE RAILROAD OF FREIGHT CARS OWNED BY
ANOTHER.  PUB. L. 89-430, 80 STAT. 168.  THE SENATE COMMITTEE ON
COMMERCE STATED IN ITS REPORT ACCOMPANYING THIS LEGISLATION: 

     "CAR SHORTAGES, WHICH ONCE WERE CONFINED TO THE MIDWEST DURING

  HARVEST SEASONS, HAVE BECOME INCREASINGLY MORE FREQUENT, MORE

  SEVERE, AND NATIONWIDE IN SCOPE AS THE NATIONAL FREIGHT CAR

  SUPPLY HAS PLUMMETED."  S. REP. NO. 386, 89TH CONG., 1ST SESS.,

  1-2. 

THE COMMISSION IN 1966 COMMENCED AN INVESTIGATION, EX PARTE NO. 252,
INCENTIVE PER DIEM CHARGES, "TO DETERMINE WHETHER INFORMATION PRESENTLY
AVAILABLE WARRANTED THE ESTABLISHMENT OF AN INCENTIVE ELEMENT INCREASE,
ON AN INTERIM BASIS, TO APPLY PENDING FURTHER STUDY AND
INVESTIGATION."  332 I.C.C. 11, 12 (1967).  STATEMENTS OF POSITION WERE
RECEIVED FROM THE COMMISSION STAFF AND A NUMBER OF RAILROADS.  HEARINGS
WERE CONDUCTED AT WHICH WITNESSES WERE EXAMINED.  IN OCTOBER 1967, THE
COMMISSION RENDERED A DECISION DISCONTINUING THE EARLIER PROCEEDING,
BUT ANNOUNCING A PROGRAM OF FURTHER INVESTIGATION INTO THE GENERAL
SUBJECT. 

IN DECEMBER 1867, THE COMMISSION INITIATED THE RULE MAKING PROCEDURE
GIVING RISE TO THE ORDER THAT APPELLEES HERE CHALLENGE.  IT DIRECTED
CLASS I AND CLASS II LINE-HAUL RAILROADS TO COMPILE AND REPORT DETAILED
INFORMATION WITH RESPECT TO FREIGHT-CAR DEMAND AND SUPPLY AT NUMEROUS
SAMPLE STATIONS FOR SELECTED DAYS OF THE WEEK DURING 12 FOUR-WEEK
PERIODS, BEGINNING JANUARY 29, 1968. 

SOME OF THE AFFECTED RAILROADS VOICED QUESTIONS ABOUT THE PROPOSED
STUDY OR REQUESTED MODIFICATION IN THE STUDY PROCEDURES OUTLINED BY THE
COMMISSION IN ITS NOTICE OF PROPOSED RULEMAKING.  IN RESPONSE TO
PETITIONS SETTING FORTH THESE CARRIERS' VIEWS, THE COMMISSION STAFF
HELD AN INFORMAL CONFERENCE IN APRIL 1968, AT WHICH THE OBJECTIONS AND
PROPOSED MODIFICATIONS WERE DISCUSSED.  TWENTY RAILROADS, INCLUDING
APPELLEE SEABOARD, WERE REPRESENTED AT THIS CONFERENCE, AT WHICH THE
COMMISSION'S STAFF SOUGHT TO ANSWER QUESTIONS ABOUT REPORTING METHODS
TO ACCOMMODATE INDIVIDUAL CIRCUMSTANCES OF PARTICULAR RAILROADS.  THE
CONFERENCE ADJOURNED ON A NOTE THAT UNDOUBTEDLY LEFT THE IMPRESSION
THAT HEARINGS WOULD BE HELD AT SOME FUTURE DATE.  A DETAILED REPORT OF
THE CONFERENCE WAS SENT TO ALL PARTIES TO THE PROCEEDING BEFORE THE
COMMISSION. 

THE RESULTS OF THE INFORMATION THUS COLLECTED WERE ANALYZED AND
PRESENTED TO CONGRESS BY THE COMMISSION DURING A HEARING BEFORE THE
SUBCOMMITTEE ON SURFACE TRANSPORTATION OF THE SENATE COMMITTEE ON
COMMERCE IN MAY, 1969.  MEMBERS OF THE SUBCOMMITTEE EXPRESSED
DISSATISFACTION WITH THE COMMISSION'S SLOW PACE IN EXERCISING THE
AUTHORITY THAT HAD BEEN CONFERRED UPON IT BY THE 1966 AMENDMENTS TO THE
INTERSTATE COMMERCE ACT.  JUDGE SIMPSON IN HIS OPINION FOR THE DISTRICT
COURT SAID: 

     "MEMBERS OF THE SENATE SUBCOMMITTEE ON SURFACE TRANSPORTATION

  EXPRESSED CONSIDERABLE DISSATISFACTION WITH THE COMMISSION'S

  APPARENT INABILITY TO TAKE EFFECTIVE STEPS TOWARD ELIMINATING THE

  NATIONAL SHORTAGE OF FREIGHT CARS.  COMMENTS WERE GENERAL THAT

THE COMMISSION WAS CONDUCTING TOO MANY HEARINGS AND TAKING TOO

  LITTLE ACTION.  SENATORS PRESSED FOR MORE ACTION AND LESS TALK,

  BUT COMMISSION COUNSEL EXPRESSED DOUBT RESPECTING THE

  COMMISSION'S STATUTORY POWER TO ACT WITHOUT ADDITIONAL

  HEARINGS."  322 F.SUPP.,AT 727. 

JUDGE FRIENDLY, DESCRIBING THE SAME EVENT IN LONG ISLAND R. CO. V.
UNITED STATES, SUPRA, SAID: 

     "TO SAY THAT THE PRESENTATION WAS NOT RECEIVED WITH ENTHUSIASM

  WOULD BE A CONSIDERABLE UNDERSTATEMENT.  SENATORS VOICED

  DISPLEASURE AT THE COMMISSION'S LONG DELAY AT TAKING ACTION UNDER

  THE 1966 AMENDMENT, ENGAGED IN SOME MERRIMENT OVER WHAT WAS

  REGARDED AS AN UNINTELLIGIBLE DISCUSSION OF METHODOLOGY . . . AND

  EXPRESSED DOUBT ABOUT THE NEED FOR A HEARING . . . BUT THE

COMMISSION'S GENERAL COUNSEL INSISTED THAT A HEARING WAS NEEDED .

  . . AND THE CHAIRMAN OF THE COMMISSION AGREED . . . "  318

  F.SUPP.,AT 494. 

THE COMMISSION, NOW APPARENTLY IMBUED WITH A NEW SENSE OF MISSION,
ISSUED IN DECEMBER 1969 AN INTERIM REPORT ANNOUNCING ITS TENTATIVE
DECISION TO ADOPT INCENTIVE PER DIEM CHARGES ON STANDARD BOXCARS BASED
ON THE INFORMATION COMPILED BY THE RAILROADS.  THE SUBSTANTIVE DECISION
REACHED BY THE COMMISSION WAS THAT SO-CALLED "INCENTIVE" PER DIEM
CHARGES SHOULD BE PAID BY ANY RAILROAD USING ON ITS LINES A STANDARD
BOXCAR OWNED BY ANOTHER RAILROAD.  BEFORE THE ENACTMENT OF THE 1966
AMENDMENT TO THE INTERSTATE COMMERCE ACT, IT WAS GENERALLY THOUGHT THAT
THE COMMISSION'S AUTHORITY TO FIX PER DIEM PAYMENTS FOR FREIGHT CAR USE
WAS LIMITED TO SETTING AN AMOUNT THAT REFLECTED FAIR RETURN ON
INVESTMENT FOR THE OWNING RAILROAD, WITHOUT ANY REGARD BEING HAD FOR
THE DESIRABILITY OF PROMPT RETURN TO THE OWNING LINE OR FOR THE
ENCOURAGEMENT OF ADDITIONAL PURCHASES OF FREIGHT CARS BY THE RAILROADS
AS A METHOD OF INVESTING CAPITAL.  THE COMMISSION CONCLUDED, HOWEVER,
THAT IN VIEW OF THE 1966 AMENDMENT IT COULD IMPOSE ADDITIONAL
"INCENTIVE" PER DIEM CHARGES TO SPUR PROMPT RETURN OF EXISTING CARS AND
TO MAKE ACQUISITION OF NEW CARS FINANCIALLY ATTRACTIVE TO THE
RAILROADS.  IT DID SO BY MEANS OF A PROPOSED SCHEDULE THAT ESTABLISHED
SUCH CHARGES ON AN ACROSS-THE-BOARD BASIS FOR ALL COMMON CARRIERS BY
RAILROADS SUBJECT TO THE INTERSTATE COMMERCE ACT.  EMBODIED IN THE
REPORT WAS A PROPOSED RULE ADOPTING THE COMMISSION'S TENTATIVE
CONCLUSIONS AND A NOTICE TO THE RAILROADS TO FILE STATEMENTS OF
POSITION WITHIN 60 DAYS, COUCHED IN THE FOLLOWING LANGUAGE: 

     "THAT VERIFIED STATEMENTS OF FACTS, BRIEFS, AND STATEMENTS OF

  POSITION RESPECTING THE TENTATIVE CONCLUSIONS REACHED IN THE SAID

  INTERIM REPORT, THE RULES AND REGULATIONS PROPOSED IN THE

  APPENDIX TO THIS ORDER, AND ANY OTHER PERTINENT MATTER, ARE

  HEREBY INVITED TO BE SUBMITTED PURSUANT TO THE FILING SCHEDULE

  SET FORTH BELOW BY AN INTERESTED PERSON WHETHER OR NOT SUCH

  PERSON IS ALREADY A PARTY TO THIS PROCEEDING. 

        .  .          .          . 

     "THAT ANY PARTY REQUESTING ORAL HEARING SHALL SET FORTH WITH

  SPECIFICITY THE NEED THEREFOR AND THE EVIDENCE TO BE ADDUCED." 

  337 I.C.C. 183, 213. 

BOTH APPELLEE RAILROADS FILED STATEMENTS OBJECTING TO THE
COMMISSION'S PROPOSAL AND REQUESTING AN ORAL HEARING, AS DID NUMEROUS
OTHER RAILROADS.  IN APRIL 1970, THE COMMISSION, WITHOUT HAVING HELD
FURTHER "HEARINGS,"  ISSUED A SUPPLEMENTAL REPORT MAKING SOME
MODIFICATIONS IN THE TENTATIVE CONCLUSIONS EARLIER REACHED, BUT
OVERRULING IN TOTO THE REQUESTS OF APPELLEES. 

THE DISTRICT COURT HELD THAT IN SO DOING THE COMMISSION VIOLATED
SEC. 556(D) OF THE ADMINISTRATIVE PROCEDURE ACT, AND IT WAS ON THIS
BASIS THAT IT SET ASIDE THE ORDER OF THE COMMISSION. 

        II.  APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT 

IN UNITED STATES.  V. ALLEGHENY-LUDLUM STEEL CORP., SUPRA, WE HELD
THAT THE LANGUAGE OF SEC. 1(14)(A) OF THE INTERSTATE COMMERCE ACT
AUTHORIZING THE COMMISSION TO ACT "AFTER HEARING" WAS NOT THE
EQUIVALENT OF A REQUIREMENT THAT A RULE BE MADE "ON THE RECORD AFTER
OPPORTUNITY FOR AN AGENCY HEARING" AS THE LATTER TERM IS USED IN SEC.
553(C) OF THE ADMINISTRATIVE PROCEDURE ACT.  SINCE THE 1966 AMENDMENT
TO SEC. 1(14)(A), UNDER WHICH THE COMMISSION WAS HERE PROCEEDING, DOES
NOT BY ITS TERMS ADD TO THE HEARING REQUIREMENT CONTAINED IN THE
EARLIER LANGUAGE, THE SAME RESULT SHOULD OBTAIN HERE UNLESS THAT
AMENDMENT CONTAINS LANGUAGE THAT IS TANTAMOUNT TO SUCH A REQUIREMENT. 
APPELLEES CONTEND THAT SUCH LANGUAGE IS FOUND IN THE PROVISIONS OF THAT
ACT REQUIRING THAT: 

     "(THE COMMISSION SHALL GIVE CONSIDERATION TO THE NATIONAL
LEVEL

  OF OWNERSHIP OF SUCH TYPE OF FREIGHT CAR AND TO OTHER FACTORS

  AFFECTING THE ADEQUACY OF THE NATIONAL FREIGHT CAR SUPPLY, AND

  SHALL, ON THE BASIS OF SUCH CONSIDERATION, DETERMINE WHETHER

  COMPENSATION SHOULD BE COMPUTED . . . "

WHILE THIS LANGUAGE IS UNDOUBTEDLY A MANDATE TO THE COMMISSION TO
CONSIDER THE FACTORS THERE SET FORTH IN REACHING ANY CONCLUSION AS TO
IMPOSITION OF PER DIEM INCENTIVE CHARGES, IT ADDS TO THE HEARING
REQUIREMENTS OF THE SECTION NEITHER EXPRESSLY NOR BY IMPLICATION.  WE
KNOW OF NO REASON TO THINK THAT AN ADMINISTRATIVE AGENCY IN REACHING A
DECISION CANNOT ACCORD CONSIDERATION TO FACTORS SUCH AS THOSE SET FORTH
IN THE 1966 AMENDMENT BY MEANS OTHER THAN A TRIAL-TYPE HEARING OR THE
PRESENTATION OF ORAL ARGUMENT BY THE AFFECTED PARTIES.  CONGRESS BY
THAT AMENDMENT SPECIFIED NECESSARY COMPONENTS OF THE ULTIMATE DECISION,
BUT IT DID NOT SPECIFY THE METHOD BY WHICH THE COMMISSION SHOULD
ACQUIRE INFORMATION ABOUT THOSE COMPONENTS.  /5/ 

BOTH OF THE DISTRICT COURTS THAT REVIEWED THIS ORDER OF THE
COMMISSION CONCLUDED THAT ITS PROCEEDINGS WERE GOVERNED BY THE STRICTER
REQUIREMENTS OF SECS. 556 AND 557 OF THE ADMINISTRATIVE PROCEDURE ACT,
RATHER THAN BY THE PROVISIONS OF SEC. 553 ALONE.  /6/  THE CONCLUSION
OF THE DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, WHICH WE HERE
REVIEW, WAS BASED ON THE ASSUMPTION THAT THE LANGUAGE IN SEC. 1(14)(A)
OF THE INTERSTATE COMMERCE ACT REQUIRING RULEMAKING UNDER THAT SECTION
TO BE DONE "AFTER HEARING" WAS THE EQUIVALENT OF A STATUTORY
REQUIREMENT THAT THE RULE "BE MADE ON THE RECORD AFTER OPPORTUNITY FOR
AN AGENCY HEARING."  SUCH AN ASSUMPTION IS INCONSISTENT WITH OUR
DECISION IN ALLEGHENY-LUDLUM, SUPRA. 

THE DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK REACHED THE
SAME CONCLUSION BY A SOMEWHAT DIFFERENT LINE OF REASONING.  THAT COURT
FELT THAT BECAUSE SEC. 1(14(A) OF THE INTERSTATE COMMERCE ACT HAD
REQUIRED A "HEARING," AND BECAUSE THAT SECTION WAS ORIGINALLY ENACTED
IN 1917, CONGRESS WAS PROBABLY THINKING IN TERMS OF A "HEARING" SUCH AS
THAT DESCRIBED IN THE OPINION OF THIS COURT IN THE ROUGHLY
CONTEMPORANEOUS CASE OF ICC V. LOUISVILLE & NASHVILLE R. CO., 227 U.S.
88, 93 (1913).  THE INGREDIENTS OF THE "HEARING" WERE THERE SAID TO BE
THAT "(ALL PARTIES MUST BE FULLY APPRISED OF THE EVIDENCE SUBMITTED OR
TO BE CONSIDERED, AND MUST BE GIVEN OPPORTUNITY TO CROSS-EXAMINE
WITNESSES, TO INSPECT DOCUMENTS AND TO OFFER EVIDENCE IN EXPLANATION OR
REBUTTAL."  COMBINING THIS VIEW OF CONGRESSIONAL UNDERSTANDING OF THE
TERM "HEARING" WITH COMMENTS BY THE CHAIRMAN OF THE COMMISSION AT THE
TIME OF THE ADOPTION OF THE 1966 LEGISLATION REGARDING THE NECESSITY
FOR "HEARINGS," THAT COURT CONCLUDED THAT CONGRESS HAD, IN EFFECT,
REQUIRED THAT THESE PROCEEDINGS BE "ON THE RECORD AFTER OPPORTUNITY FOR
AN AGENCY HEARING" WITHIN THE MEANING OF SEC. 553(C) OF THE
ADMINISTRATIVE PROCEDURE ACT.     INSOFAR AS THIS CONCLUSION IS
GROUNDED ON THE BELIEF THAT THE LANGUAGE "AFTER HEARING" OF SEC.
1(14)(A), WITHOUT MORE, WOULD TRIGGER THE APPLICABILITY OF SECS. 556
AND 557, IT, TOO, IS CONTRARY TO OUR DECISION IN ALLEGHENY-LUDLUM,
SUPRA.  THE DISTRICT COURT OBSERVED THAT IT WAS "RATHER HARD TO BELIEVE
THAT THE LAST SENTENCE OF SEC. 553(C) WAS DIRECTED ONLY TO THE FEW
LEGISLATIVE SPORTS WHERE THE WORDS 'ON THE RECORD' OR THEIR EQUIVALENT
HAD FOUND THEIR WAY INTO THE STATUTE BOOK."  318 F.SUPP.,AT 496.  THIS
IS, HOWEVER, THE LANGUAGE WHICH CONGRESS USED, AND SINCE THERE ARE
STATUTES ON THE BOOKS THAT DO USE THESE VERY WORDS, SEE, E.G., THE
FULBRIGHT AMENDMENT TO THE WALSH-HEALEY ACT, 41 U.S.C. 43A, AND 21
U.S.C. 371(E)(3), THE REGULATIONS PROVISION OF THE FOOD AND DRUG ACT,
ADHERENCE TO THAT LANGUAGE CANNOT BE SAID TO RENDER THE PROVISION
NUGATORY OR INEFFECTUAL.  WE RECOGNIZED IN ALLEGHENY-LUDLUM THAT THE
ACTUAL WORDS "ON THE RECORD"  AND "AFTER . . . HEARING" USED IN SEC.
553 WERE NOT WORDS OF ART, AND THAT OTHER STATUTORY LANGUAGE HAVING THE
SAME MEANING COULD TRIGGER THE PROVISIONS OF SECS. 556 AND 557 IN
RULEMAKING PROCEEDINGS.  BUT WE ADHERE TO OUR CONCLUSION, EXPRESSED IN
THAT CASE, THAT THE PHRASE "AFTER HEARING" IN SEC. 1(14)(A) OF THE
INTERSTATE COMMERCE ACT DOES NOT HAVING SUCH AN EFFECT. 

        III.  "HEARING" REQUIREMENT OF SEC. 1(14)(A) OF THE

           INTERSTATE COMMERCE ACT 

INEXTRICABLY INTERTWINED WITH THE HEARING REQUIREMENT OF THE
ADMINISTRATIVE PROCEDURE ACT IN THIS CASE IS THE MEANING TO BE GIVEN TO
THE LANGUAGE "AFTER HEARING" IN SEC. 1(14)(A) OF THE INTERSTATE
COMMERCE ACT.  APPELLEES, BOTH HERE AND IN THE COURT BELOW, CONTEND
THAT THE COMMISSION PROCEDURE HERE FELL SHORT OF THAT MANDATED BY THE
"HEARING" REQUIREMENT OF SEC. 1(14)(A), EVEN THOUGH IT MAY HAVE
SATISFIED SEC. 553 OF THE ADMINISTRATIVE PROCEDURE ACT.  THE
ADMINISTRATIVE PROCEDURE ACT STATES THAT NONE OF ITS PROVISIONS "LIMIT
OR REPEAL ADDITIONAL REQUIREMENTS IMPOSED BY STATUTE OR OTHERWISE
RECOGNIZED BY LAW."  5 U.S.C. 559.  THUS, EVEN THOUGH THE COMMISSION
WAS NOT REQUIRED TO COMPLY WITH SECS. 556 AND 557 OF THAT ACT, IT WAS
REQUIRED TO ACCORD THE "HEARING" SPECIFIED IN SEC. 1(14)(A) OF THE
INTERSTATE COMMERCE ACT.  THOUGH THE DISTRICT COURT DID NOT PASS ON
THIS CONTENTION, IT IS SO CLOSELY RELATED TO THE CLAIM BASED ON THE
ADMINISTRATIVE PROCEDURE ACT THAT WE PROCEED TO DECIDE IT NOW. 

IF WE WERE TO AGREE WITH THE REASONING OF THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK WITH RESPECT TO THE TYPE OF HEARING
REQUIRED BY THE INTERSTATE COMMERCE ACT, THE COMMISSION'S ACTION MIGHT
WELL VIOLATE THE REQUIREMENTS, EVEN THOUGH IT WAS CONSISTENT WITH THE
REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT. 

THE TERM "HEARING" IN ITS LEGAL CONTEXT UNDOUBTEDLY HAS A HOST OF
MEANINGS.  /7/  ITS MEANING UNDOUBTEDLY WILL VARY, DEPENDING ON WHETHER
IT IS USED IN THE CONTEXT OF A RULEMAKING-TYPE PROCEEDING OR IN THE
CONTEXT OF A PROCEEDING DEVOTED TO THE ADJUDICATION OF PARTICULAR
DISPUTED FACTS.  IT IS BY NO MEANS APPARENT WHAT THE DRAFTERS OF THE
ESCH CAR SERVICE ACT OF 1917, 40 STAT. 101, WHICH BECAME THE FIRST PART
OF SEC. 1(14)(A) OF THE INTERSTATE COMMERCE ACT, MEANT BY THE TERM. 
SUCH AN INTENT WOULD SURELY BE AN EPHEMERAL ONE IF, INDEED, CONGRESS IN
1917 HAD IN MIND ANYTHING MORE SPECIFIC THAN THE LANGUAGE IT ACTUALLY
USED, FOR NONE OF THE PARTIES REFER TO ANY LEGISLATIVE HISTORY THAT
WOULD SHED LIGHT ON THE INTENDED MEANING OF THE WORDS "AFTER HEARING." 
WHAT IS APPARENT, THOUGH, IS THAT THE TERM WAS USED IN GRANTING
AUTHORITY TO THE COMMISSION TO MAKE RULES AND REGULATIONS OF A
PROSPECTIVE NATURE. 

APPELLEES REFER US TO TESTIMONY OF THE CHAIRMAN OF THE COMMISSION TO
THE EFFECT THAT IF THE ADDED AUTHORITY ULTIMATELY CONTAINED IN THE 1966
AMENDMENT WERE ENACTED, THE COMMISSION WOULD PROCEED WITH "GREAT
CAUTION" IN IMPOSING INCENTIVE PER DIEM RATES, AND TO STATEMENTS OF
BOTH COMMISSION PERSONNEL AND MEMBERS OF CONGRESS AS TO THE NECESSITY
FOR A "HEARING" BEFORE COMMISSION ACTION.  CERTAINLY, THE LAPSE OF TIME
OF MORE THAN THREE YEARS BETWEEN THE ENACTMENT OF THE 1966 AMENDMENT
AND THE COMMISSION'S ISSUANCE OF ITS TENTATIVE CONCLUSIONS CANNOT BE
SAID TO EVIDENCE ANY LACK OF CAUTION ON THE PART OF THAT BODY.  NOR DO
GENERALIZED REFERENCES TO THE NECESSITY FOR A HEARING ADVANCE OUR
INQUIRY, SINCE THE STATUTE BY ITS TERMS REQUIRES A "HEARING"; THE MORE
PRECISE INQUIRY OF WHETHER THE HEARING REQUIREMENTS NECESSARILY INCLUDE
SUBMISSION OF ORAL TESTIMONY, CROSS-EXAMINATION, OR ORAL ARGUMENTS IS
NOT RESOLVED BY SUCH COMMENTS AS THESE. 

UNDER THESE CIRCUMSTANCES, CONFRONTED WITH A GRANT OF SUBSTANTIVE
AUTHORITY MADE AFTER THE ADMINISTRATIVE PROCEDURE ACT WAS ENACTED, /8/
WE THINK THAT REFERENCE TO THAT ACT, IN WHICH CONGRESS DEVOTED ITSELF
EXCLUSIVELY TO QUESTIONS SUCH AS THE NATURE AND SCOPE OF HEARINGS, IS A
SATISFACTORY BASIS FOR DETERMINING WHAT IS MEANT BY THE TERM "HEARING"
USED IN ANOTHER STATUTE.  TURNING TO THAT ACT, WE ARE CONVINCED THAT
THE TERM "HEARING" AS USED THEREIN DOES NOT NECESSARILY EMBRACE EITHER
THE RIGHT TO PRESENT EVIDENCE ORALLY AND TO CROSS-EXAMINE OPPOSING
WITNESSES, OR THE RIGHT TO PRESENT ORAL ARGUMENT TO THE AGENCY'S
DECISIONMAKER. 

"INTERPRETATIVE RULES, GENERAL STATEMENTS OF POLICY, OR RULES OF AGENCY
ORGANIZATION, PROCEDURE, OR PRACTICE," AND RULEMAKING "WHEN THE AGENCY
FOR GOOD CAUSE FINDS . . . THAT NOTICE AND PUBLIC PROCEDURE THEREON ARE
IMPRACTICABLE, UNNECESSARY, OR CONTRARY TO THE PUBLIC INTEREST."  THIS
EXCEPTION DOES NOT APPLY, HOWEVER, "WHEN NOTICE OR HEARING IS REQUIRED
BY STATUTE"; IN THOSE CASES, EVEN THOUGH INTERPRETATIVE RULEMAKING BE
INVOLVED, THE REQUIREMENTS OF SEC. 553 APPLY.  BUT SINCE THESE
REQUIREMENTS THEMSELVES DO NOT MANDATE ANY ORAL PRESENTATION, SEE
ALLEGHENY-LUDLUM, SUPRA, IT CANNOT BE DOUBTED THAT A STATUTE THAT
REQUIRES A "HEARING" PRIOR TO RULEMAKING MAY IN SOME CIRCUMSTANCES BE
SATISFIED BY PROCEDURES THAT MEET ONLY THE STANDARDS OF SEC. 553.  THE
COURT'S OPINION IN FPC V. TEXACO INC., 377 U.S. 33 (1964), SUPPORTS
SUCH A BROAD DEFINITION OF THE TERM "HEARING." 

SIMILARLY, EVEN WHERE THE STATUTE REQUIRES THAT THE RULEMAKING
PROCEDURE TAKE PLACE "ON THE RECORD AFTER OPPORTUNITY FOR AN AGENCY
HEARING," THUS TRIGGERING THE APPLICABILITY OF SEC. 556 SUBSECTION (D)
PROVIDES THAT THE AGENCY MAY PROCEED BY THE SUBMISSION OF ALL OR PART
OF THE EVIDENCE IN WRITTEN FORM IF A PARTY WILL NOT BE "PREJUDICED
THEREBY."  AGAIN, THE ACT MAKES IT PLAIN THAT A SPECIFIC STATUTORY
MANDATE THAT THE PROCEEDINGS TAKE PLACE ON THE RECORD AFTER HEARING MAY
BE SATISFIED IN SOME CIRCUMSTANCES BY EVIDENTIARY SUBMISSION IN WRITTEN
FORM ONLY. 

WE THINK THIS TREATMENT OF THE TERM "HEARING" IN THE ADMINISTRATIVE
PROCEDURE ACT AFFORDS A SUFFICIENT BASIS FOR CONCLUDING THAT THE
REQUIREMENT OF A "HEARING" CONTAINED IN SEC. 1(14)(A), IN A SITUATION
WHERE THE COMMISSION WAS ACTING UNDER THE 1966 STATUTORY RULEMAKING
AUTHORITY THAT CONGRESS HAD CONFERRED UPON IT, DID NOT BY ITS OWN FORCE
REQUIRE THE COMMISSION EITHER TO HEAR ORAL TESTIMONY, TO PERMIT CROSS
EXAMINATION OF COMMISSION WITNESSES, OR TO HEAR ORAL ARGUMENT.  HERE,
THE COMMISSION PROMULGATED A TENTATIVE DRAFT OF AN ORDER, AND ACCORDED
ALL INTERESTED PARTIES 60 DAYS IN WHICH TO FILE STATEMENTS OF POSITION,
SUBMISSIONS OF EVIDENCE, AND OTHER RELEVANT OBSERVATIONS.  THE PARTIES
HAD FAIR NOTICE OF EXACTLY WHAT THE COMMISSION PROPOSED TO DO, AND WERE
GIVEN AN OPPORTUNITY TO COMMENT, TO OBJECT, OR TO MAKE SOME OTHER FORM
OF WRITTEN SUBMISSION.  THE FINAL ORDER OF THE COMMISSION INDICATES
THAT IT GAVE CONSIDERATION TO THE STATEMENTS OF THE TWO APPELLEES
HERE.  GIVEN THE "OPEN-ENDED" NATURE OF THE PROCEEDINGS, AND THE
COMMISSION'S ANNOUNCED WILLINGNESS TO CONSIDER PROPOSALS FOR
MODIFICATION AFTER OPERATING EXPERIENCE HAD BEEN ACQUIRED, WE THINK THE
HEARING REQUIREMENT OF SEC. 1(14)(A) OF THE ACT WAS MET. 

APPELLEE RAILROADS CITE A NUMBER OF OUR PREVIOUS DECISIONS DEALING
IN SOME MANNER WITH THE RIGHT TO A HEARING IN AN ADMINISTRATIVE
PROCEEDING.  ALTHOUGH APPELLEES HAVE ASSERTED NO CLAIM OF
CONSTITUTIONAL DEPRIVATION IN THIS PROCEEDING, SOME OF THE CASES THEY
RELY UPON EXPRESSLY SPEAK IN CONSTITUTIONAL TERMS, WHILE OTHERS ARE
LESS THAN CLEAR AS TO WHETHER THEY DEPEND UPON THE DUE PROCESS CLAUSE
OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION, OR UPON
GENERALIZED PRINCIPLES OF ADMINISTRATIVE LAW FORMULATED PRIOR TO THE
ADOPTION OF THE ADMINISTRATIVE PROCEDURE ACT. 

MORGAN V. UNITED STATES, 304 U.S. 1 (1938), IS CITED IN SUPPORT OF
APPELLEES' CONTENTION THAT THE COMMISSION'S PROCEEDINGS WERE FATALLY
DEFICIENT.  THAT OPINION DESCRIBES THE PROCEEDINGS THERE INVOLVED AS
"QUASI-JUDICIAL," ID.,AT 14, AND THUS PRESUMABLY DISTINCT FROM A
RULEMAKING PROCEEDING SUCH AS THAT ENGAGED IN BY THE COMMISSION HERE. 
BUT SINCE THE ORDER OF THE SECRETARY OF AGRICULTURE THERE CHALLENGED
DID INVOLVE A FORM OF RATEMAKING, THE CASE BEARS ENOUGH RESEMBLANCE TO
THE FACTS OF THIS CASE TO WARRANT FURTHER EXAMINATION OF APPELLEES'
CONTENTION.  THE ADMINISTRATIVE PROCEDURE IN MORGAN WAS HELD TO BE
DEFECTIVE PRIMARILY BECAUSE THE PERSONS WHO WERE TO BE AFFECTED BY THE
SECRETARY'S ORDER WERE FOUND NOT TO HAVE BEEN ADEQUATELY APPRISED OF
WHAT THE SECRETARY PROPOSED TO DO PRIOR TO THE TIME THAT HE ACTUALLY
DID IT.  ILLUSTRATIVE OF THE COURT'S REASONING IS THE FOLLOWING PASSAGE
FROM THE OPINION: 

     "THE RIGHT TO A HEARING EMBRACES NOT ONLY THE RIGHT TO PRESENT

  EVIDENCE BUT ALSO A REASONABLE OPPORTUNITY TO KNOW THE CLAIMS OF

  THE OPPOSING PARTY AND TO MEET THEM.  THE RIGHT TO SUBMIT

  ARGUMENT IMPLIES THAT OPPORTUNITY; OTHERWISE THE RIGHT MAY BE BUT

  A BARREN ONE.  THOSE WHO ARE BROUGHT INTO CONTEST WITH THE

  GOVERNMENT IN A QUASI-JUDICIAL PROCEEDING AIMED AT THE CONTROL OF

THEIR ACTIVITIES ARE ENTITLED TO BE FAIRLY ADVISED OF WHAT THE

  GOVERNMENT PROPOSES AND TO BE HEARD UPON ITS PROPOSALS BEFORE IT

  ISSUES ITS FINAL COMMAND."  ID., AT 18-19." 

THE PROCEEDINGS BEFORE THE SECRETARY OF AGRICULTURE HAD BEEN
INITIATED BY A NOTICE OF INQUIRY INTO THE REASONABLENESS OF THE RATES
IN QUESTION, AND THE INDIVIDUALS BEING REGULATED SUFFERED THROUGHOUT
THE PROCEEDING FROM ITS ESSENTIAL FORMLESSNESS.  THE COURT CONCLUDED
THAT THIS FORMLESSNESS DENIED THE INDIVIDUALS SUBJECT TO REGULATION THE
"FULL HEARING" THAT THE STATUTE HAD PROVIDED. 

ASSUMING, ARGUENDO, THAT THE STATUTORY TERM "FULL HEARING" DOES NOT
DIFFER SIGNIFICANTLY FROM THE HEARING REQUIREMENT OF SEC. 1(14)(A), WE
DO NOT BELIEVE THAT THE PROCEEDINGS OF THE INTERSTATE COMMERCE
COMMISSION BEFORE US SUFFER FROM THE DEFECT FOUND TO BE FATAL IN
MORGAN.  THOUGH THE INITIAL NOTICE OF THE PROCEEDING BY NO MEANS SET
OUT IN DETAIL WHAT THE COMMISSION PROPOSED TO DO, ITS TENTATIVE
CONCLUSIONS AND ORDER OF DECEMBER 1969, COULD SCARCELY HAVE BEEN MORE
EXPLICIT OR DETAILED.  ALL INTERESTED PARTIES WERE GIVEN 60 DAYS
FOLLOWING THE ISSUANCE OF THESE TENTATIVE FINDINGS AND ORDER IN WHICH
TO MAKE APPROPRIATE OBJECTIONS.  APPELLEES WERE "FAIRLY ADVISED" OF
EXACTLY WHAT THE COMMISSION PROPOSED TO DO SUFFICIENTLY IN ADVANCE OF
THE ENTRY OF THE FINAL ORDER TO GIVEN THEM ADEQUATE TIME TO FORMULATE
AND TO PRESENT OBJECTIONS TO THE COMMISSION'S PROPOSAL.  MORGAN,
THEREFORE, DOES NOT AID APPELLEES. 

ICC V. LOUISVILLE & NASHVILLE R. CO., 227 U.S. 88 (1913), INVOLVED
WHAT THE COURT THERE DESCRIBED AS A "QUASI-JUDICIAL" PROCEEDING OF A
QUITE DIFFERENT NATURE FROM THE ONE WE REVIEW HERE.  THE PROVISIONS TO
EH INTERSTATE COMMERCE ACT, 24 STAT. 379, AS AMENDED, AND OF THE
HEPBURN ACT, 34 STAT. 584, IN EFFECT AT THE TIME THAT CASE WAS DECIDED,
LEFT TO THE RAILROAD CARRIERS THE "PRIMARY RIGHT TO MAKE RATES," 227
U.S.,AT 92, BUT GRANTED TO THE COMMISSION THE AUTHORITY TO SET THEM
ASIDE, IF AFTER HEARING, THEY WERE SHOWN TO BE UNREASONABLE.  THE
PROCEEDING BEFORE THE COMMISSION IN THAT CASE HAD BEEN INSTITUTED BY
THE NEW ORLEANS BOARD OF TRADE COMPLAINT THAT CERTAIN CLASS AND
COMMODITY RATES CHARGED BY THE LOUISVILLE & NASHVILLE RAILROAD FROM NEW
ORLEANS TO OTHER POINTS WERE UNFAIR, UNREASONABLE, AND DISCRIMINATORY. 
227 U.S.,AT 90.  THE TYPE OF PROCEEDING THERE, IN WHICH THE COMMISSION
ADJUDICATED A COMPLAINT BY A SHIPPER THAT SPECIFIED RATES SET BY A
CARRIER WERE UNREASONABLE, WAS SUFFICIENTLY DIFFERENT FROM THE
NATIONWIDE INCENTIVE PAYMENTS ORDERED TO BE MADE BY ALL RAILROADS IN
THIS PROCEEDING SO AS TO BE MADE BY ALL RAILROADS IN THIS PROCEEDING SO
AS TO MAKE THE LOUISVILLE & NASHVILLE OPINION INAPPLICABLE IN THE CASE
PRESENTLY BEFORE US. 

THE BASIC DISTINCTION BETWEEN RULEMAKING AND ADJUDICATION IS
ILLUSTRATED BY THIS COURT'S TREATMENT OF TWO RELATED CASES UNDER THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IN LONDONER V. DENVER,
CITED IN ORAL ARGUMENT BY APPELLEES, 210 U.S. 373 (1908), THE COURT
HELD THAT DUE PROCESS HAD NOT BEE ACCORDED A LANDOWNER WHO OBJECTED TO
THE AMOUNT ASSESSED AGAINST HIS LAND AS ITS SHARE OF THE BENEFIT
RESULTING FROM THE PAVING OF A STREET.  LOCAL PROCEDURE HAD ACCORDED
HIM THE RIGHT TO FILE A WRITTEN COMPLAINT AND OBJECTION, BUT NOT TO BE
HEARD ORALLY.  THIS COURT HELD THAT DUE PROCESS OF LAW REQUIRED THAT HE
"HAVE THE RIGHT TO SUPPORT HIS ALLEGATIONS BY ARGUMENT HOWEVER BRIEF,
AND, IF NEED BE, BY PROOF, HOWEVER INFORMAL."  ID., AT 386.  BUT IN THE
LATER CASE OF BI-METALLIC INVESTMENT CO. V. STATE BOARD OF
EQUALIZATION, 239 U.S. 441 (1915), THE COURT HELD THAT NO HEARING AT
ALL WAS CONSTITUTIONALLY REQUIRED PRIOR TO A DECISION BY STATE TAX
OFFICERS IN COLORADO TO INCREASE THE VALUATION OF ALL TAXABLE PROPERTY
IN DENVER BY A SUBSTANTIAL PERCENTAGE.  THE COURT DISTINGUISHED
LONDONER BY STATING THAT THERE A SMALL NUMBER OF PERSONS "WERE
EXCEPTIONALLY AFFECTED, IN EACH CASE UPON INDIVIDUAL GROUNDS."  ID., AT
446.     LATER DECISIONS HAVE CONTINUED TO OBSERVE THE DISTINCTION
ADVERTED TO IN BI-METALLIC INVESTMENT CO., SUPRA.  IN OHIO BELL
TELEPHONE CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292, 304-305 (1937),
THE COURT NOTED THE FACT THAT THE ADMINISTRATIVE PROCEEDING THERE
INVOLVED WAS DESIGNED TO REQUIRE THE UTILITY TO REFUND PREVIOUSLY
COLLECTED RATE CHARGES.  THE COURT HELD THAT IN SUCH A PROCEEDING THE
AGENCY COULD NOT, CONSISTENTLY WITH DUE PROCESS, ACT ON THE BASIS OF
UNDISCLOSED EVIDENCE THAT WAS NEVER MADE A PART OF THE RECORD BEFORE
THE AGENCY.  THE CASE IS THUS MORE AKIN TO LOUISVILLE & NASHVILLE R.
CO., SUPRA, THAN IT IS TO THIS CASE.  FCC V. WJR, 337 U.S. 265 (1949),
ESTABLISHED THAT THERE WAS NO ACROSS-THE-BOARD CONSTITUTIONAL RIGHT TO
ORAL ARGUMENT IN EVERY ADMINISTRATIVE PROCEEDING REGARDLESS OF ITS
NATURE.  WHILE THE LINE DIVIDING THEM MAY NOT ALWAYS BE A BRIGHT ONE,
THESE DECISIONS REPRESENT A RECOGNIZED DISTINCTION IN ADMINISTRATIVE
LAW BETWEEN PROCEEDINGS FOR THE PURPOSE OF PROMULGATING POLICY-TYPE
RULES OR STANDARDS, ON THE ONE HAND, AND PROCEEDINGS DESIGNED TO
ADJUDICATE DISPUTED FACTS IN PARTICULAR CASES ON THE OTHER. 

HERE, THE INCENTIVE PAYMENTS PROPOSED BY THE COMMISSION IN ITS
TENTATIVE ORDER, AND LATER ADOPTED IN ITS FINAL ORDER, WERE APPLICABLE
ACROSS THE BOARD TO ALL OF THE COMMON CARRIERS BY RAILROAD SUBJECT TO
THE INTERSTATE COMMERCE ACT.  NO EFFORT WAS MADE TO SINGLE OUT ANY
PARTICULAR RAILROAD FOR SPECIAL CONSIDERATION BASED ON ITS OWN PECULIAR
CIRCUMSTANCES.  INDEED, ONE OF THE OBJECTIONS OF APPELLEE FLORIDA EAST
COAST WAS THAT IT AND OTHER TERMINATING CARRIERS SHOULD HAVE BEEN
TREATED DIFFERENTLY FROM THE GENERALITY OF THE RAILROADS.  BUT THE FACT
THAT THE ORDER MAY IN ITS EFFECTS HAVE BEEN THOUGH MORE DISADVANTAGEOUS
BY SOME RAILROADS THAN BY OTHER DOES NOT CHANGE ITS GENERALIZED
NATURE.  THOUGH THE COMMISSION OBVIOUSLY RELIED ON FACTUAL INFERENCES
AS A BASIS FOR ITS ORDER, THE SOURCE OF THESE FACTUAL INFERENCES WAS
APPARENT TO ANYONE WHO READ THE ORDER OF DECEMBER 1969.  THE FACTUAL
INFERENCES WERE USED IN THE FORMULATION OF A BASICALLY LEGISLATIVE-TYPE
JUDGMENT, FOR PROSPECTIVE APPLICATION ONLY, RATHER THAN IN ADJUDICATING
A PARTICULAR SET OF DISPUTED FACTS. 

THE COMMISSION'S PROCEDURE SATISFIED BOTH THE PROVISIONS OF SEC.
1(14)(A) OF THE INTERSTATE COMMERCE ACT AND OF THE ADMINISTRATIVE
PROCEDURE ACT, AND WERE NOT INCONSISTENT WITH PRIOR DECISIONS OF THIS
COURT.  WE, THEREFORE, REVERSE THE JUDGMENT OF THE DISTRICT COURT, AND
REMAND THE CASE SO THAT IT MAY CONSIDER THOSE CONTENTIONS OF THE
PARTIES THAT ARE NOT DISPOSED OF BY THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SECTION 1(14)(A) PROVIDES: 

"THE COMMISSION MAY, AFTER HEARING, ON A COMPLAINT OR UPON ITS OWN
INITIATIVE WITHOUT COMPLAINT, ESTABLISH REASONABLE RULES, REGULATIONS,
AND PRACTICES WITH RESPECT TO CAR SERVICE BY COMMON CARRIERS BY
RAILROAD SUBJECT TO THIS CHAPTER, INCLUDING THE COMPENSATION TO BE PAID
AND OTHER TERMS OF ANY CONTRACT, AGREEMENT, OR ARRANGEMENT FOR THE USE
OF ANY LOCOMOTIVE, CAR, OR OTHER VEHICLE NOT OWNED BY THE CARRIER USING
IT (AND WHETHER OR NOT OWNED BY ANOTHER CARRIER), AND THE PENALTIES OR
OTHER SANCTIONS FOR NONOBSERVANCE OF SUCH RULES, REGULATIONS, OR
PRACTICES.  IN FIXING SUCH COMPENSATION TO BE PAID FOR THE USE OF ANY
TYPE OF FREIGHT CAR, THE COMMISSION SHALL GIVE CONSIDERATION TO THE
NATIONAL LEVEL OF OWNERSHIP OF SUCH TYPE OF FREIGHT CAR AND TO OTHER
FACTORS AFFECTING THE ADEQUACY OF THE NATIONAL FREIGHT CAR SUPPLY, AND
SHALL, ON THE BASIS OF SUCH CONSIDERATION, DETERMINE WHETHER
COMPENSATION SHOULD BE COMPUTED SOLELY ON THE BASIS OF ELEMENTS OF
OWNERSHIP EXPENSE INVOLVED IN OWNING AND MAINTAINING SUCH TYPE OF
FREIGHT CAR, INCLUDING A FAIR RETURN ON VALUE, OR WHETHER SUCH
COMPENSATION SHOULD BE INCREASED BY SUCH INCENTIVE ELEMENT OR ELEMENTS
OF COMPENSATION AS IN THE COMMISSION'S JUDGMENT WILL PROVIDE JUST AND
REASONABLE COMPENSATION TO FREIGHT CAR OWNERS, CONTRIBUTE TO SOUND CAR
SERVICE PRACTICES (INCLUDING EFFICIENT UTILIZATION AND DISTRIBUTION OF
CARS), AND ENCOURAGE THE ACQUISITION AND MAINTENANCE OF A CAR SUPPLY
ADEQUATE TO MEET THE NEEDS OF COMMERCE AND THE NATIONAL DEFENSE.  THE
COMMISSION SHALL NOT MAKE ANY INCENTIVE ELEMENT APPLICABLE TO ANY TYPE
OF FREIGHT CAR THE SUPPLY OF WHICH THE COMMISSION FINDS TO BE ADEQUATE
AND MAY EXEMPT FROM THE COMPENSATION TO BE PAID BY ANY GROUP OF
CARRIERS SUCH INCENTIVE ELEMENT OR ELEMENTS IF THE COMMISSION FINDS IT
TO BE IN THE NATIONAL INTEREST." 

/2/  "SEC.  553.  RULE MAKING. 

"(A) THIS SECTION APPLIES, ACCORDING TO THE PROVISIONS THEREOF,
EXCEPT TO THE EXTENT THAT THERE IS INVOLVED-- 

"(1) A MILITARY OR FOREIGN AFFAIRS FUNCTION OF THE UNITED STATES;
OR 

"(2) A MATTER RELATING TO AGENCY MANAGEMENT OR PERSONNEL OR TO
PUBLIC PROPERTY, LOANS, GRANTS, BENEFITS, OR CONTRACTS. 

"(B) GENERAL NOTICE OF PROPOSED RULE MAKING SHALL BE PUBLISHED IN
THE FEDERAL REGISTER, UNLESS PERSONS SUBJECT THERETO ARE NAMED AND
EITHER PERSONALLY SERVED OR OTHERWISE HAVE ACTUAL NOTICE THEREOF IN
ACCORDANCE WITH LAW.  THE NOTICE SHALL INCLUDE-- 

"(1) A STATEMENT OF THE TIME, PLACE, AND NATURE OF PUBLIC RULE
MAKING PROCEEDINGS; 

"(2) REFERENCE TO THE LEGAL AUTHORITY UNDER WHICH THE RULE IS
PROPOSED; AND 

"(3) EITHER THE TERMS OR SUBSTANCE OF THE PROPOSED RULE OR A
DESCRIPTION OF THE SUBJECTS AND ISSUES INVOLVED. 

EXCEPT WHEN NOTICE OR HEARING IS REQUIRED BY STATUTE, THIS
SUBSECTION DOES NOT APPLY-- 

"(A) TO INTERPRETATIVE RULES, GENERAL STATEMENTS OF POLICY, OR RULES
OF AGENCY ORGANIZATION, PROCEDURE, OR PRACTICE; OR 

"(B) WHEN THE AGENCY FOR GOOD CAUSE FINDS (AND INCORPORATES THE
FINDING AND A BRIEF STATEMENT OF REASONS THEREFOR IN THE RULES ISSUED)
THAT NOTICE AND PUBLIC PROCEDURE THEREON ARE IMPRACTICABLE,
UNNECESSARY, OR CONTRARY TO THE PUBLIC INTEREST. 

"(C) AFTER NOTICE REQUIRED BY THIS SECTION, THE AGENCY SHALL GIVE
INTERESTED PERSONS AN OPPORTUNITY TO PARTICIPATE IN THE RULE MAKING
THROUGH SUBMISSION OF WRITTEN DATA, VIEWS, OR ARGUMENTS WITH OR WITHOUT
OPPORTUNITY FOR ORAL PRESENTATION.  AFTER CONSIDERATION OF THE RELEVANT
MATTER PRESENTED, THE AGENCY SHALL INCORPORATE IN THE RULES ADOPTED A
CONCISE GENERAL STATEMENT OF THEIR BASIS AND PURPOSE.  WHEN RULES ARE
REQUIRED BY STATUTE TO BE MADE ON THE RECORD AFTER OPPORTUNITY FOR AN
AGENCY HEARING, SECTIONS 556 AND 557 OF THIS TITLE APPLY INSTEAD OF
THIS SUBSECTION. 

"(D) THE REQUIRED PUBLICATION OR SERVICE OF A SUBSTANTIVE RULE SHALL
BE MADE NOT LESS THAN 30 DAYS BEFORE ITS EFFECTIVE DATE, EXCEPT-- 

"(1) A SUBSTANTIVE RULE WHICH GRANTS OR RECOGNIZES AN EXEMPTION OR
RELIEVES A RESTRICTION; 

"(2) INTERPRETATIVE RULES AND STATEMENT OF POLICY; OR 

"(3) AS OTHERWISE PROVIDED BY THE AGENCY FOR GOOD CAUSE FOUND AND
PUBLISHED WITH THE RULE. 

"(E) EACH AGENCY SHALL GIVEN AN INTERESTED PERSON THE RIGHT TO
PETITION FOR THE ISSUANCE, AMENDMENT, OR REPEAL OF A RULE." 

/3/  "SEC.  556.  HEARINGS; PRESIDING EMPLOYEES; POWERS AND DUTIES;
BURDEN OF PROOF; EVIDENCE; RECORD AS BASIS OF DECISION. 

"(A) THIS SECTION APPLIES, ACCORDING TO THE PROVISIONS THEREOF, TO
HEARINGS REQUIRED BY SECTION 553 OR 554 OF THIS TITLE TO BE CONDUCTED
IN ACCORDANCE WITH THIS SECTION. 

"(B) THERE SHALL PRESIDE AT THE TAKING OF EVIDENCE-- 

"(1) THE AGENCY; 

"(2) ONE OR MORE MEMBERS OF THE BODY WHICH COMPRISES THE AGENCY; OR 

"(3) ONE OR MORE HEARING EXAMINERS APPOINTED UNDER SECTION 3105 OF
THIS TITLE. 

"THIS SUBCHAPTER DOES NOT SUPERSEDE THE CONDUCT OF SPECIFIED CLASSES
OF PROCEEDINGS, IN WHOLE OR IN PART, BY OR BEFORE BOARDS OR OTHER
EMPLOYEES SPECIALLY PROVIDED FOR BY OR DESIGNATED UNDER STATUTE.  THE
FUNCTIONS OF PRESIDING EMPLOYEES AND OF EMPLOYEES PARTICIPATING IN
DECISIONS IN ACCORDANCE WITH SECTION 557 OF THIS TITLE SHALL BE
CONDUCTED IN AN IMPARTIAL MANNER.  A PRESIDING OR PARTICIPATING
EMPLOYEE MAY AT ANY TIME DISQUALIFY HIMSELF.  ON THE FILING IN GOOD
FAITH OF A TIMELY AND SUFFICIENT AFFIDAVIT OF PERSONAL BIAS OR OTHER
DISQUALIFICATION OF A PRESIDING OR PARTICIPATING EMPLOYEE, THE AGENCY
SHALL DETERMINE THE MATTER AS A PART OF THE RECORD AND DECISION IN THE
CASE. 

"(C) SUBJECT TO PUBLISHED RULES OF THE AGENCY AND WITHIN ITS POWERS,
EMPLOYEES PRESIDING AT HEARINGS MAY-- 

"(1) ADMINISTER OATHS AND AFFIRMATIONS; 

"(2) ISSUE SUBPENAS AUTHORIZED BY LAW; 

"(3) RULE ON OFFERS OF PROOF AND RECEIVE RELEVANT EVIDENCE; 

"(4) TAKE DEPOSITIONS OR HAVE DEPOSITIONS TAKEN WHEN THE ENDS OF
JUSTICE WOULD BE SERVED; 

"(5) REGULATE THE COURSE OF THE HEARING; 

"(6) HOLD CONFERENCES FOR THE SETTLEMENT OR SIMPLIFICATION OF THE
ISSUES BY CONSENT OF THE PARTIES; 

"(7) DISPOSE OF PROCEDURAL REQUESTS OR SIMILAR MATTERS; 

"(8) MAKE OR RECOMMEND DECISIONS IN ACCORDANCE WITH SECTION 557 OF
THIS TITLE; AND 

"(9) TAKE OTHER ACTION AUTHORIZED BY AGENCY RULE CONSISTENT WITH
THIS SUBCHAPTER. 

"(D) EXCEPT AS OTHERWISE PROVIDED BY STATUTE, THE PROPONENT OF A
RULE OR ORDER HAS THE BURDEN OF PROOF.  ANY ORAL OR DOCUMENTARY
EVIDENCE MAY BE RECEIVED, BUT THE AGENCY AS A MATTER OF POLICY SHALL
PROVIDE FOR THE EXCLUSION OF IRRELEVANT, IMMATERIAL, OR UNDULY
REPETITIOUS EVIDENCE.  A SANCTION MAY NOT BE IMPOSED OR RULE OR ORDER
ISSUED EXCEPT ON CONSIDERATION OF THE WHOLE RECORD OR THOSE PARTS
THEREOF CITED BY A PARTY AND SUPPORTED BY AND IN ACCORDANCE WITH THE
RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE.  A PARTY IS ENTITLED TO
PRESENT HIS CASE OR DEFENSE BY ORAL OR DOCUMENTARY EVIDENCE, TO SUBMIT
REBUTTAL EVIDENCE, AND TO CONDUCT SUCH CROSS-EXAMINATION AS MAY BE
REQUIRED FOR A FULL AND TRUE DISCLOSURE OF THE FACTS.  IN RULE MAKING
OR DETERMINING CLAIMS FOR MONEY OR BENEFITS OR APPLICATIONS FOR INITIAL
LICENSES AN AGENCY MAY, WHEN A PARTY WILL NOT BE PREJUDICED THEREBY,
ADOPT PROCEDURES FOR THE SUBMISSION OF ALL OR PART OF THE EVIDENCE IN
WRITTEN FORM. 

"(E) THE TRANSCRIPT OF TESTIMONY AND EXHIBITS, TOGETHER WITH ALL
PAPERS AND REQUESTS FILED IN THE PROCEEDING, CONSTITUTES THE EXCLUSIVE
RECORD FOR DECISION IN ACCORDANCE WITH SECTION 557 OF THIS TITLE AND,
ON PAYMENT OF LAWFULLY PRESCRIBED COSTS, SHALL BE MADE AVAILABLE TO THE
PARTIES.  WHEN AN AGENCY DECISION RESTS ON OFFICIAL NOTICE OF A
MATERIAL FACT NOT APPEARING IN THE EVIDENCE IN THE RECORD, A PARTY IS
ENTITLED, ON TIMELY REQUEST, TO AN OPPORTUNITY TO SHOW THE CONTRARY." 

/4/  "SEC.  557.  INITIAL DECISIONS; CONCLUSIVENESS; REVIEW BY
AGENCY; SUBMISSIONS BY PARTIES; CONTENTS OF DECISIONS; RECORD. 

"(A) THIS SECTION APPLIES ACCORDING TO THE PROVISIONS THEREOF, WHEN
A HEARING IS REQUIRED TO BE CONDUCTED IN ACCORDANCE WITH SECTION 556 OF
THIS TITLE. 

"(B) WHEN THE AGENCY DID NOT PRESIDE AT THE RECEPTION OF THE
EVIDENCE, THE PRESIDING EMPLOYEE OR, IN CASES NOT SUBJECT TO SECTION
554(D) OF THIS TITLE, AN EMPLOYEE QUALIFIED TO PRESIDE AT HEARINGS
PURSUANT TO SECTION 556 OF THIS TITLE, SHALL INITIALLY DECIDE THE CASE
UNLESS THE AGENCY REQUIRES, EITHER IN SPECIFIC CASES OR BY GENERAL
RULE, THE ENTIRE RECORD TO BE CERTIFIED TO IT FOR DECISION.  WHEN THE
PRESIDING EMPLOYEE MAKES AN INITIAL DECISION, THAT DECISION THEN
BECOMES THE DECISION OF THE AGENCY WITHOUT FURTHER PROCEEDINGS UNLESS
THERE IS AN APPEAL TO, OR REVIEW ON MOTION OF, THE AGENCY WITHIN TIME
PROVIDED BY RULE.  ON APPEAL FROM OR REVIEW OF THE INITIAL DECISION,
THE AGENCY HAS ALL THE POWERS WHICH IT WOULD HAVE IN MAKING THE INITIAL
DECISION EXCEPT AS IT MAY LIMIT THE ISSUES ON NOTICE OR BY RULE.  WHEN
THE AGENCY MAKES THE DECISION WITHOUT HAVING PRESIDED AT THE RECEPTION
OF THE EVIDENCE, THE PRESIDING EMPLOYEE OR AN EMPLOYEE QUALIFIED TO
PRESIDE AT HEARINGS PURSUANT TO SECTION 556 OF THIS TITLE SHALL FIRST
RECOMMEND A DECISION, EXCEPT THAT IN RULE MAKING OR DETERMINING
APPLICATIONS FOR INITIAL LICENSES-- 

"(1) INSTEAD THEREOF THE AGENCY MAY ISSUE A TENTATIVE DECISION OR
ONE OF ITS RESPONSIBLE EMPLOYEES MAY RECOMMEND A DECISION; OR 

"(2) THIS PROCEDURE MAY BE OMITTED IN A CASE IN WHICH THE AGENCY
FINDS ON THE RECORD THAT DUE AND TIMELY EXECUTION OF ITS FUNCTIONS
IMPERATIVELY AND UNAVOIDABLY SO REQUIRES. 

"(C) BEFORE A RECOMMENDED, INITIAL, OR TENTATIVE DECISION, OR A
DECISION ON AGENCY REVIEW OF THE DECISION OF SUBORDINATE EMPLOYEES, THE
PARTIES ARE ENTITLED TO A REASONABLE OPPORTUNITY TO SUBMIT FOR THE
CONSIDERATION OF THE EMPLOYEES PARTICIPATING IN THE DECISIONS-- 

"(1) PROPOSED FINDINGS AND CONCLUSIONS; OR 

"(2) EXCEPTIONS TO THE DECISIONS OR RECOMMENDED DECISIONS OF
SUBORDINATE EMPLOYEES OR TO TENTATIVE AGENCY DECISIONS; AND 

"(3) SUPPORTING REASONS FOR THE EXCEPTIONS OR PROPOSED FINDINGS OR
CONCLUSIONS. 

"THE RECORD SHALL SHOW THE RULING ON EACH FINDING, CONCLUSION, OR
EXCEPTION PRESENTED.  ALL DECISIONS, INCLUDING INITIAL, RECOMMENDED,
AND TENTATIVE DECISIONS, ARE A PART OF THE RECORD AND SHALL INCLUDE A
STATEMENT OF-- 

"(A) FINDINGS AND CONCLUSIONS, AND THE REASONS OR BASIS THEREFOR, ON
ALL THE MATERIAL ISSUES OF FACT, LAW, OR DISCRETION PRESENTED ON THE
RECORD; AND 

"(B) THE APPROPRIATE RULE, ORDER, SANCTION, RELIEF, OR DENIAL
THEREOF." 

/5/  THE COURT OF APPEALS FOR THE NINTH CIRCUIT REACHED A RESULT
SIMILAR TO THAT WHICH WE REACH, IN PACIFIC COAST EUROPEAN CONFERENCE V.
UNITED STATES, 350 F.2D 197 (1965).  CONSTRUING THE AUTHORITY OF THE
FEDERAL MARITIME COMMISSION UNDER SEC. 14B OF THE SHIPPING ACT, 1916,
AS AMENDED, 46 U.S.C. 813A, THAT COURT OBSERVED THAT "(THE AUTHORITY OF
THE COMMISSION TO PERMIT SUCH CONTRACTS WAS LIMITED BY REQUIRING THAT
THE CONTRACTS IN EIGHT SPECIFIED RESPECTS MEET THE CONGRESSIONAL
JUDGMENT AS TO WHAT THEY SHOULD INCLUDE."  350 F.2D, AT 201. 
NOTWITHSTANDING THESE EXPLICIT DIRECTIONS THAT PARTICULAR FACTORS BE
CONSIDERED BY THE COMMISSION IN REACHING ITS DECISION, THE COURT HELD
THAT THE STATUTE'S REQUIREMENTS OF "NOTICE AND HEARING" WERE NOT
SUFFICIENT TO BRING INTO PLAY THE PROVISIONS OF SECS. 556 AND 557 OF
THE ADMINISTRATIVE PROCEDURE ACT.     /6/  BOTH DISTRICT COURT OPINIONS
WERE HANDED DOWN BEFORE OUR DECISION IN UNITED STATES V. ALLEGHENY
LUDLUM STEEL CORP., 406 U.S. 742 (1972), AND IT APPEARS FROM THE RECORD
BEFORE US THAT THE GOVERNMENT IN THOSE COURTS DID NOT REALLY CONTEST
THE PROPOSITION THAT THE COMMISSION'S PROCEEDINGS WERE GOVERNED BY THE
STRICTER STANDARDS OF SECS. 556 AND 557. 

THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS RELIES IN PART ON
INDICATIONS BY THE COMMISSION THAT IT PROPOSED TO APPLY THE MORE
STRINGENT STANDARDS OF SECS. 556 AND 557 OF THE ADMINISTRATIVE
PROCEDURE ACT TO THESE PROCEEDINGS.  THIS ACT IS NOT LEGISLATION THAT
THE INTERSTATE COMMERCE COMMISSION, OR ANY OTHER SINGLE AGENCY, HAS
PRIMARY RESPONSIBILITY FOR ADMINISTERING.  AN AGENCY INTERPRETATION
INVOLVING, AT LEAST IN PART, THE PROVISIONS OF THAT ACT DOES NOT CARRY
THE WEIGHT, IN ASCERTAINING THE INTENT OF CONGRESS, THAT AN
INTERPRETATION BY AN AGENCY "CHARGED WITH THE RESPONSIBILITY" OF
ADMINISTERING A PARTICULAR STATUTE DOES.  SEE UNITED STATES V. AMERICAN
TRUCKING ASSNS., 310 U.S. 534 (1940); NORWEGIAN NITROGEN PRODUCTS CO.
V. UNITED STATES, 288 U.S. 294 (1933).  MOREOVER, SINCE ANY AGENCY IS
FREE UNDER THE ACT TO ACCORD LITIGANTS APPEARING BEFORE IT MORE
PROCEDURAL RIGHTS THAN THE ACT REQUIRES, THE FACT THAT AN AGENCY MAY
CHOOSE TO PROCEED UNDER SECS. 556 AND 557 DOES NOT CARRY THE NECESSARY
IMPLICATION THAT THE AGENCY FELT IT WAS REQUIRED TO DO SO. 

/7/  SEE 1 K.DAVIS, ADMINISTRATIVE LAW TREATISE, 6.05 (1958). 

/8/  THE INTERSTATE COMMERCE ACT WAS AMENDED IN MAY 1966; THE 1946
ADMINISTRATIVE PROCEDURE ACT WAS REPEALED BY ACT OF SEPT. 6, 1966, 80
STAT. 378, WHICH REVISED, CODIFIED, AND ENACTED TITLE 5 OF THE U.S.C.
BUT THE SECTION DETAILING THE PROCEDURES TO BE USED IN RULEMAKING IS
SUBSTANTIALLY SIMILAR TO THE ORIGINAL PROVISION IN THE 1946
ADMINISTRATIVE PROCEDURE ACT.  SEE SEC. 4(B), 60 STAT. 238. 

/9/  THIS SAME LANGUAGE WAS CITED WITH APPROVAL BY THE COURT IN
WILLNER V. COMMITTEE ON CHARACTER, 373 U.S. 96, 105 (1963), IN WHICH IT
WAS HELD THAT AN APPLICANT FOR ADMISSION TO THE BAR COULD NOT BE DENIED
SUCH ADMISSION ON THE BASIS OF EX PARTE STATEMENTS OF OTHERS WHOM HE
HAD NOT BEEN AFFORDED AN OPPORTUNITY TO CROSS-EXAMINE. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART CONCURS,
DISSENTING. 

THE PRESENT DECISION MAKES A SHARP BREAK WITH TRADITIONAL CONCEPTS
OF PROCEDURAL DUE PROCESS.  THE COMMISSION ORDER UNDER ATTACK IS
TANTAMOUNT TO A RATE ORDER.  CHARGES ARE FIXED THAT NONOWNING RAILROADS
MUST PAY OWNING RAILROADS FOR BOXCARS OF THE LATTER THAT ARE ON THE
TRACKS OF THE FORMER.  THESE CHARGES ARE AFFECTIVE ONLY DURING THE
MONTHS OF SEPTEMBER THROUGH FEBRUARY, THE PERIOD OF GREATEST BOXCAR
USE.  FOR EXAMPLE, THE CHARGE FOR A BOXCAR THAT COSTS FROM $15,000 TO
$17,000 AND THAT IS FIVE YEARS OF AGE OR YOUNGER AMOUNTS TO $5.19 A
DAY.  BOXCARS COSTING BETWEEN $39,000 AND $41,000 AND THAT ARE FIVE
YEARS OF AGE OR YOUNGER COST THE NON-OWNING RAILROAD $12.98 A DAY.  THE
FEES OR RATES CHARGED DECREASE AS THE AGES OF THE BOXCARS LENGTHEN.  49
CFR 1036.2.  THIS IS THE IMPOSITION ON CARRIERS BY ADMINISTRATIVE FIAT
OF A NEW FINANCIAL LIABILITY.  I DO NOT BELIEVE IT IS WITHIN OUR
TRADITIONAL CONCEPTS OF DUE PROCESS TO ALLOW AN ADMINISTRATIVE AGENCY
TO SADDLE ANYONE WITH A NEW RATE, CHARGE, OR FEE WITHOUT A FULL HEARING
THAT INCLUDES THE RIGHT TO PRESENT ORAL TESTIMONY, CROSS-EXAMINE
WITNESSES, AND PRESENT ORAL ARGUMENT.  THAT IS REQUIRED BY THE
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 556(D); SEC. 556(A) STATES THAT
SEC. 556 APPLIES TO HEARINGS REQUIRED BY SEC. 553.  SECTION 553(C)
PROVIDES THAT SEC. 556 APPLIES "(WHEN RULES ARE REQUIRED BY STATUTE TO
BE MADE ON THE RECORD AFTER OPPORTUNITY FOR AN AGENCY HEARING."  A
HEARING UNDER SEC. 1(14)(A) OF THE INTERSTATE COMMERCE ACT FIXING
RATES, CHARGES, OR FEES IS CERTAINLY ADJUDICATORY, NOT LEGISLATIVE IN
THE CUSTOMARY SENSE. 

THE QUESTION IS WHETHER THE INTERSTATE COMMERCE COMMISSION
PROCEDURES USED IN THIS RATE CASE "FOR THE SUBMISSION OF . . . EVIDENCE
IN WRITTEN FORM" AVOIDED PREJUDICE TO THE APPELLEES SO AS TO COMPORT
WITH THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT.  /1/  THE
GOVERNMENT APPEALS FROM THE DISTRICT COURT'S ORDER REMANDING THIS CASE
TO THE COMMISSION FOR FURTHER PROCEEDINGS ON THE INCENTIVE PER DIEM
RATES TO BE PAID BY THE APPELLEE RAILROADS FOR THE STANDARD BOXCARS
THEY USE. 

IN 1966, CONGRESS AMENDED SEC. 1(14)(A) OF THE INTERSTATE COMMERCE
ACT TO REQUIRE THAT THE COMMISSION INVESTIGATE THE USE OF METHODS OF
INCENTIVE COMPENSATION TO ALLEVIATE ANY SHORTAGE OF FREIGHT CARS "AND
ENCOURAGE THE ACQUISITION AND MAINTENANCE OF A CAR SUPPLY ADEQUATE TO
MEET THE NEEDS OF COMMERCE AND THE NATIONAL DEFENSE."  49 U.S.C.
1(14)(A).  WHILE THE COMMISSION WAS GIVEN THE DISCRETION TO EXEMPT
CARRIERS FROM INCENTIVE PAYMENTS "IN THE NATIONAL INTEREST," IT WAS
DENIED THE POWER TO "MAKE ANY INCENTIVE ELEMENT APPLICABLE TO ANY TYPE
OF FREIGHT CAR THE SUPPLY OF WHICH THE COMMISSION FINDS TO BE ADEQUATE
. . . "  IBID. 

THE COMMISSION'S INITIAL INVESTIGATION UNDER THIS AUTHORITY (31
FED.REG.  9240) WAS TERMINATED WITHOUT ACTION BECAUSE IT "PRODUCED NO
RELIABLE INFORMATION RESPECTING THE QUANTUM OF INTERIM INCENTIVE CHARGE
NECESSARY TO MEET THE STATUTORY STANDARDS."  332 I.C.C. 11, 16.  A
SUBSEQUENT STUDY OF BOXCAR SUPPLY-AND-DEMAND CONDITIONS (32 FED.REG. 
20987) YIELDED DATA THAT WERE COMPILED IN AN INTERIM REPORT CONTAINING
TENTATIVE CHARGES AND THAT WERE SUBMITTED TO THE RAILROADS FOR
COMMENT.  337 I.C.C. 183.  ALTHOUGH THE COMMISSION WAS ADMITTEDLY
UNCERTAIN WHETHER ITS PROPOSED CHARGES WOULD ACCOMPLISH THE STATUTORY
OBJECTIVE, ID., AT 191, AND EVEN THOUGH "THE OPPORTUNITY TO PRESENT
EVIDENCE AND ARGUMENTS" WAS CONTEMPLATED, ID., AT 183, CONGRESSIONAL
IMPATIENCE MILITATED AGAINST FURTHER DELAY IN IMPLEMENTING SEC.
1(14(A).  /2/  CONSEQUENTLY, THE COMMISSION REJECTED THE REQUESTS OF
THE APPELLEES AND OTHER RAILROADS FOR FURTHER HEARINGS AND PROMULGATED
TO AN INCENTIVE PER DIEM RATE SCHEDULE FOR STANDARD BOXCARS.  337
I.C.C. 217. 

APPELLEES THEN BROUGHT THIS ACTIN IN THE DISTRICT COURT ALLEGING
THAT THEY WERE "PREJUDICED" WITHIN THE MEANING OF THE ADMINISTRATIVE
PROCEDURE ACT BY THE COMMISSION'S FAILURE TO AFFORD THEM A PROPER
HEARING.  322 F.SUPP.  725 (MD FLA. 1971).  SEABOARD ARGUED THAT IT HAD
BEEN DAMAGED BY WHAT IT ALLEGED TO BE THE COMMISSION'S SUDDEN CHANGE IN
EMPHASIS FROM SPECIALTY TO UNEQUIPPED BOXCARS AND THAT IT WOULD LOSE
SOME $1.8 MILLION AS THE RESULT OF THE COMMISSION'S ALLEGEDLY HASTY AND
EXPERIMENTAL ACTION.  FLORIDA EAST COAST RAISED SIGNIFICANT CHALLENGES
TO THE STATISTICAL VALIDITY OF THE COMMISSION'S DATA, /3/  AND ALSO
CONTENDED THAT ITS STATUS AS A TERMINATING RAILROAD LEFT IT WITH A
SURFEIT OF STANDARD BOXCARS WHICH SHOULD EXEMPT IT FROM THE REQUIREMENT
TO PAY INCENTIVE CHARGES. 

APPELLEES, IN OTHER WORDS, ARGUE THAT THE INADEQUACY OF THE SUPPLY
OF STANDARD BOXCARS WAS NOT SUFFICIENTLY ESTABLISHED BY THE
COMMISSION'S PROCEDURES.  SEABOARD CONTENDS THAT SPECIALTY FREIGHT CARS
HAVE SUPPLANTED STANDARD BOXCARS AND FLORIDA EAST COAST CHALLENGES THE
ACCURACY OF THE COMMISSION'S FINDINGS. 

IN ITS INTERIM REPORT, THE COMMISSION INDICATED THAT THERE WOULD BE
AN OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENTS.  SEE 337 I.C.C. 183,
187.  THE APPELLEES COULD REASONABLY HAVE EXPECTED THAT THE LATER
HEARINGS WOULD GIVE THEM THE OPPORTUNITY TO SUBSTANTIATE AND ELABORATE
THE CRITICISMS THEY SET FORTH IN THEIR INITIAL OBJECTIONS TO THE
INTERIM REPORT.  THAT ALONE WOULD NOT NECESSARILY SUPPORT THE CLAIM OF
"PREJUDICE."  BUT I BELIEVE THAT "PREJUDICE" WAS SHOWN WHEN IT WAS
CLAIMED THAT THE VERY BASIS ON WHICH THE COMMISSION RESTED ITS FINDING
WAS VULNERABLE BECAUSE IT LACKED STATISTICAL VALIDITY OR OTHER REASONED
BASIS.  AT LEAST IN THAT NARROW GROUP OF CASES, PREJUDICE FOR LACK OF A
PROPER HEARING HAS BEEN SHOWN. 

BOTH LONG ISLAND R. CO. V. UNITED STATES, 318 F.SUPP.  490 (EDNY
1970), AND THE PRESENT CASE INVOLVE CHALLENGES TO THE COMMISSION'S
PROCEDURES ESTABLISHING INCENTIVE PER DIEM RATES.  IN LONG ISLAND,
HOWEVER, THE RAILROAD POINTED TO NO SPECIFIC CHALLENGES TO THE
COMMISSION'S FINDINGS (ID., AT 499), AND THE TRIAL WAS CONDUCTED ON
STIPULATED ISSUES INVOLVING THE RIGHT TO AN ORAL HEARING.  ID., AT 491
N. 2.  SINCE LONG ISLAND PRESENTED NO INFORMATION WHICH MIGHT HAVE
CAUSED THE COMMISSION TO REACH A DIFFERENT RESULT, /4/  THERE WAS NO
SHOWING OF PREJUDICE, AND A FORTIORI NO RIGHT TO AN ORAL HEARING.  IN
THE PRESENT CASE, BY CONTRAST, THERE ARE SPECIFIC FACTUAL DISPUTES AND
THE ISSUE IS THE NARROW ONE OF WHETHER WRITTEN SUBMISSION OF EVIDENCE
WITHOUT ORAL ARGUMENT WAS PREJUDICIAL. 

THE MORE EXACTING HEARING PROVISIONS OF THE ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. 556-557, ARE ONLY APPLICABLE, OF COURSE, IF THE "RULES
ARE REQUIRED BY STATUTE TO BE MADE ON THE RECORD AFTER OPPORTUNITY FOR
AN AGENCY HEARING."  ID., SEC. 553(C). 

UNITED STATES V. ALLEGHENY-LUDLUM STEEL CORP., 406 U.S. 742, WAS
CONCERNED STRICTLY WITH A RULEMAKING PROCEEDING OF THE COMMISSION FOR
THE PROMULGATION OF "CAR SERVICE RULES" THAT IN GENERAL REQUIRED
FREIGHT CARS, AFTER BEING UNLOADED, TO BE RETURNED "IN THE DIRECTION OF
THE LINES OF THE ROAD OWNING THE CARS."  ID., AT 743.  WE SUSTAINED THE
COMMISSION'S POWER WITH RESPECT TO THESE TWO RULES ON THE NARROW GROUND
THAT THEY WERE WHOLLY LEGISLATIVE.  WE HELD THAT SEC. 1(14)(A) OF THE
INTERSTATE COMMERCE ACT, REQUIRING BY ITS TERMS A "HEARING," "DOES NOT
REQUIRE THAT SUCH RULES 'BE MADE ON THE RECORD'" WITHIN THE MEANING OF
SEC. 553(C).  ID., AT 757.  WE RECOGNIZED, HOWEVER, THAT THE PRECISE
WORDS "ON THE RECORD" ARE NOT TALISMANIC, BUT THAT THE CRUCIAL QUESTION
IS WHETHER THE PROCEEDINGS UNDER REVIEW ARE "AN EXERCISE OF LEGISLATIVE
RULEMAKING" OR "ADJUDICATORY HEARINGS."  IBID.  THE "HEARING"
REQUIREMENT OF SEC. 1(14)(A) CANNOT BE GIVEN A FIXED AND IMMUTABLE
MEANING TO BE APPLIED IN EACH AND EVERY CASE WITHOUT REGARD TO THE
NATURE OF THE PROCEEDINGS. 

THE RULES IN QUESTION HERE ESTABLISHED "INCENTIVE" PER DIEM CHARGES
TO SPUR THE PROMPT RETURN OF EXISTING CARS AND TO MAKE THE ACQUISITION
OF NEW CARS FINANCIALLY ATTRACTIVE TO THE RAILROADS.  /5/  UNLIKE THOSE
WE CONSIDERED IN ALLEGHENY-LUDLUM, THESE RULES INVOLVE THE CREATION OF
A NEW FINANCIAL LIABILITY.  ALTHOUGH QUASI-LEGISLATIVE, THEY ARE ALSO
ADJUDICATORY IN THE SENSE THAT THEY DETERMINE THE MEASURE OF THE
FINANCIAL RESPONSIBLITY OF ONE ROAD FOR ITS USE OF THE ROLLING STOCK OF
ANOTHER ROAD.  THE COMMISSION'S POWER TO PROMULGATE THESE RULES
PURSUANT TO SEC. 1(14)(A) IS CONDITIONED ON THE PRELIMINARY FINDING
THAT THE SUPPLY OF FREIGHT CARS TO WHICH THE RULES APPLY IS
INADEQUATE.  MOREOVER, IN FIXING INCENTIVE COMPENSATION ONCE THIS
THRESHOLD FINDING HAS BEEN MADE, THE COMMISSION "SHALL GIVE
CONSIDERATION TO THE NATIONAL LEVEL OF OWNERSHIP OF SUCH TYPE OF
FREIGHT CAR AND TO OTHER FACTORS AFFECTING THE ADEQUACY OF THE NATIONAL
FREIGHT CAR SUPPLY . . . "  /6/ 

THE MAJORITY FINDS ICC V. LOUISVILLE & NASHVILLE R. CO., 227 U.S.
88, "SUFFICIENTLY DIFFERENT" AS TO MAKE THE OPINION IN THAT CASE
INAPPLICABLE TO THE CASE NOW BEFORE US.  I WOULD READ THE CASE
DIFFERENTLY, FINDING A CLEAR MANDATE THAT WHERE, AS HERE, RATEMAKING
MUST BE BASED ON EVIDENTIAL FACTS, SEC. 1(14)(A) REQUIRES THAT FULL
HEARING WHICH DUE PROCESS NORMALLY ENTAILS.  THERE WE CONSIDERED
COMMISSION PROCEDURES FOR SETTING ASIDE AS UNREASONABLE, AFTER A
HEARING, CARRIER-MADE RATES.  THE GOVERNMENT MAINTAINED THAT THE
COMMISSION, INVESTED WITH LEGISLATIVE RATEMAKING POWER, BUT REQUIRED BY
THE COMMERCE ACT TO OBTAIN NECESSARY INFORMATION, COULD ACT ON SUCH
INFORMATION AS THE CONGRESS MIGHT.  THE GOVERNMENT URGED THAT WE
PRESUME THAT THE COMMISSION'S FINDINGS WERE SUPPORTED BY SUCH
INFORMATION, "EVEN THOUGH NOT FORMALLY PROVED AT THE HEARING."  ID., AT
93.  WE REJECTED THE CONTENTION, HOLDING THAT THE RIGHT TO A HEARING
INCLUDED "AN OPPORTUNITY TO TEST, EXPLAIN, OR REFUTE . . . ALL PARTIES
MUST BE FULLY APPRISED OF THE EVIDENCE SUBMITTED OR TO BE CONSIDERED,
AND MUST BE GIVEN OPPORTUNITY TO CROSS-EXAMINE WITNESSES, TO INSPECT
DOCUMENTS AND TO OFFER EVIDENCE IN EXPLANATION OR REBUTTAL."  IBID.  I
WOULD AGREE WITH THE DISTRICT COURT IN LONG ISLAND R. CO., SUPRA, AT
497, THAT CONGRESS WAS FULLY COGNIZANT OF OUR DECISION IN LOUISVILLE &
NASHVILLE R. CO. WHEN IT FIRST ADOPTED THE HEARING REQUIREMENT OF SEC.
1(14)(A) IN 1917.  AND WHEN CONGRESS DEBATED THE 1966 AMENDMENT THAT
EMPOWERED THE COMMISSION TO ADOPT INCENTIVE PER DIEM RATES, IT HAD NOT
LOST SIGHT OF THE IMPORTANCE OF HEARINGS.  QUESTIONED ABOUT THE EFFECT
THAT INCENTIVE COMPENSATION MIGHT HAVE ON TERMINATING LINES, MR.
STAGGERS, CHAIRMAN OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE AND FLOOR MANAGER OF THE BILL, RESPONDED:  "I MIGHT SAY TO THE
GENTLEMAN THAT THIS WILL NOT BE PUT INTO PRACTICE UNTIL THERE HAVE BEEN
FULL HEARINGS BEFORE THE COMMISSION AND ALL SIDES HAVE HAD AN
OPPORTUNITY TO ARGUE AND PRESENT THEIR FACTS ON THE QUESTION."  112
CONG.REC.  10443 (EMPHASIS ADDED).  NOR SHOULD WE OVERLOOK THE
COMMISSION'S OWN INTERPRETATION OF THE HEARING REQUIREMENT IN SEC.
1(14)(A) AS IT APPLIES TO THIS CASE.  THE COMMISSION'S ORDER INITIATING
THE RULEMAKING PROCEEDING NOTIFIED THE PARTIES THAT IT WAS ACTING
"UNDER AUTHORITY OF PART I OF THE INTERSTATE COMMERCE ACT (49 U.S.C. 1,
ET SEQ.); MORE PARTICULARLY, SECTION 1(14)(A) AND THE ADMINISTRATIVE
PROCEDURE ACT (5 U.S.C. 553, 556, AND 557.)"  CLEARLY, THE COMMISSION
BELIEVED THAT IT WAS REQUIRED TO HOLD A HEARING ON THE RECORD.  /7/
THIS INTERPRETATION, NOT OF THE ADMINISTRATIVE PROCEDURE ACT, BUT OF
SEC. 1(14)(A) OF THE COMMISSION'S OWN ACT, IS "ENTITLED TO GREAT
WEIGHT."  UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 549;
NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, 288 U.S. 294, 315. 
THE MAJORITY, AT ONE POINT, DISTINGUISHES MORGAN V. UNITED STATES, 304
U.S. 1 (MORGAN II), ON THE GROUND THAT THE PROCEEDINGS THERE INVOLVED
WERE "QUASI-JUDICIAL," "AND THUS PRESUMABLY DISTINCT FROM A RULEMAKING
PROCEEDING SUCH AS THAT ENGAGED IN BY THE COMMISSION HERE."  IT IS THIS
EASY CATEGORIZATION AND PIGEONHOLING THAT LEADS THE MAJORITY TO FIND
ALLEGHENY-LUDLUM OF CONTROLLING SIGNIFICANCE IN THIS CASE.  MORGAN II
DEALT WITH THE "FULL HEARING" REQUIREMENT OF SEC. 310 OF THE PACKERS
AND STOCKYARDS ACT, 42 STAT. 166, AS IT RELATED TO RATEMAKING FOR THE
PURCHASE AND SALE OF LIVESTOCK.  /8/  IT IS TRUE THAT THE COURT
CHARACTERIZED THE PROCEEDINGS AS QUASI-JUDICIAL."  BUT, THE FIRST TIME
THE CASE WAS BEFORE THE COURT, MORGAN V. UNITED STATES, 298 U.S. 468,
MR. CHIEF JUSTICE HUGHES NOTED THAT THE "DISTINCTIVE CHARACTER" OF THE
PROCEEDING WAS LEGISLATIVE:  "IT IS A PROCEEDING LOOKING TO LEGISLATIVE
ACTION IN THE FIXING OF RATES OF MARKET AGENCIES."  ID., AT 479. 
NEVERTHELESS, THE SECRETARY OF AGRICULTURE WAS REQUIRED TO ESTABLISH
RATES IN ACCORDANCE WITH THE STANDARDS AND UNDER THE LIMITATIONS
PRESCRIBED BY CONGRESS.  THE COURT CONCLUDED:  "A PROCEEDING OF THIS
SORT REQUIRING THE TAKING AND WEIGHING OF EVIDENCE, DETERMINATIONS OF
FACT BASED UPON THE CONSIDERATION OF THE EVIDENCE, AND THE MAKING OF AN
ORDER SUPPORTED BY SUCH FINDINGS, HAS A QUALITY RESEMBLING THAT OF A
JUDICIAL PROCEEDING.  HENCE IT IS FREQUENTLY DESCRIBED AS A PROCEEDING
OF QUASI-JUDICIAL CHARACTER.  THE REQUIREMENT OF A 'FULL HEARING' HAS
OBVIOUS REFERENCE TO THE TRADITION OF JUDICIAL PROCEEDINGS . . . "
ID., AT 480. 

COMMISSION BROAD DISCRETIONARY POWER TO DETERMINE INCENTIVE RATES. 
THESE RATES MAY HAVE DEVASTATING EFFECTS ON A PARTICULAR LINE. 
ACCORDING TO THE BRIEF OF ONE OF THE APPELLEES, THE AMOUNT OF INCENTIVE
COMPENSATION PAID BY DEBTOR LINES AMOUNTS TO MILLIONS OF DOLLARS EACH
SIX-MONTH PERIOD.  NEVERTHELESS, THE COURTS MUST DEFER TO THE
COMMISSION AS LONG AS ITS FINDINGS ARE SUPPORTED BY SUBSTANTIAL
EVIDENCE AND IT HAS NOT ABUSED ITS DISCRETION.  "ALL THE MORE INSISTENT
IS THE NEED, WHEN POWER HAS BEEN BESTOWED SO FREELY, THAT THE
'INEXORABLE SAFEGUARD' . . . OF A FAIR AND OPEN HEARING BE MAINTAINED
IN ITS INTEGRITY."  OHIO BELL TELEPHONE CO. V. PUBLIC UTILITIES COMM'N,
301 U.S. 292, 304. 

ACCORDINGLY, I WOULD HOLD THAT APPELLEES WERE NOT AFFORDED THE
HEARING GUARANTEED BY SEC. 1(14)(A) OF THE INTERSTATE COMMERCE ACT AND
5 U.S.C. SECS. 553, 556, AND 557, AND WOULD AFFIRM THE DECISION OF THE
DISTRICT COURT. 

/1/  5 U.S.C. 556(D) PROVIDES THAT A "SANCTION MAY NOT BE IMPOSED"
WITHOUT A FULL HEARING, INCLUDING CROSS-EXAMINATION.  BUT SEC. 556(D)
MAKES AN EXCEPTION, WHICH I SUBMIT IS NOT RELEVANT HERE.  IT PROVIDES:
"IN RULE MAKING . . . AN AGENCY MAY, WHEN A PARTY WILL NOT BE
PREJUDICED THEREBY, ADOPT PROCEDURES FOR THE SUBMISSION OF ALL OR PART
OF THE EVIDENCE IN WRITTEN FORM." 

/2/  SEE HEARING BEFORE THE SUBCOMMITTEE ON SURFACE TRANSPORTATION
OF THE SENATE COMMITTEE ON COMMERCE, 91ST CONG., 1ST SESS. (1969). 

/3/  FLORIDA EAST COAST ARGUES, FOR EXAMPLE, THAT THE COMMISSION'S
FINDING OF A BOXCAR SHORTAGE MAY BE ATTRIBUTABLE TO A VARIETY OF
SAMPLING OR DEFINITIONAL ERRORS, ASSERTING THAT IT IS UNREALISTIC TO
DEFINE BOXCAR DEFICIENCIES IN SUCH A MANNER AS "TO SHOW AS A
'DEFICIENCY' THE FAILURE TO SUPPLY A CAR ON THE DAY REQUESTED BY THE
SHIPPER NO MATTER WHEN THE REQUEST WAS RECEIVED."  THE GOVERNMENT'S
CONTENTION THAT A 24-HOUR STANDARD WAS NOT USED SEEMS UNRESPONSIVE TO
THIS ARGUMENT.  SEE 337 I.C.C. 217, 221. 

/4/  IN THE LONG ISLAND CASE THE COURT, SPEAKING THROUGH JUDGE
FRIENDLY, SAID: 

"WHETHER THERE WAS TO BE AN ORAL HEARING OR NOT, THE LONG ISLAND'S
FIRST JOB WAS TO EXAMINE THE BASIC DATA AND FIND THIS OUT.  NOTHING
STOOD IN ITS WAY . . . IF, ON EXAMINING THE DATA, THE LONG ISLAND HAD
POINTED TO SPECIFICS ON WHICH IT NEEDED TO CROSS-EXAMINE OR PRESENT
LIVE REBUTTAL TESTIMONY AND THE COMMISSION HAD DECLINED TO GRANT AN
ORAL HEARING, WE WOULD HAVE A DIFFERENT CASE.  INSTEAD THE LONG
ISLAND'S REQUEST FOR AN ORAL HEARING WAS SILENT AS TO ANY RESPECT IN
WHICH THE COMMISSION'S DISCLOSURE OF GREATER DETAIL OR CROSS
EXAMINATION OF THE COMMISSION'S STAFF WAS NEEDED TO ENABLE IT TO MOUNT
A MORE EFFECTIVE ARGUMENT AGAINST THE COMMISSION'S PROPOSAL.  THE LAST
SENTENCE OF SEC. 556(D) WOULD BE DEPRIVED OF ALL MEANING IF THIS WERE
HELD SUFFICIENT TO PUT THE AGENCY ON NOTICE THAT 'PREJUDICE' WOULD
RESULT FROM THE DENIAL OF AN ORAL HEARING.  EVEN TAKING INTO ACCOUNT
THE FURTHER REPRESENTATIONS THAT HAVE BEEN MADE TO US, WE FAIL TO SEE
THAT PREJUDICE HAS BEEN ESTABLISHED.  318 F.SUPP.  490, 499. 

/5/  TITLE 49 CFR 1036.1 PROVIDES: 

"APPLICATION.-- EACH COMMON CARRIER BY RAILROAD SUBJECT TO THE
INTERSTATE COMMERCE ACT SHALL PAY TO THE OWNING RAILROADS, INCLUDING
THE OWNING RAILROADS OF CANADA, THE ADDITIONAL PER DIEM CHARGES SET
FORTH IN SEC. 1036.2 ON ALL BOXCARS SHOWN BELOW, . . . WHILE IN THE
POSSESSION OF NONOWNING RAILROADS AND SUBJECT TO PER DIEM RULES.  THESE
CHARGES ARE IN ADDITION TO ALL OTHER PER DIEM CHARGES CURRENTLY IN
EFFECT OR PRESCRIBED.  MEXICAN-OWNED CARS ARE EXEMPT FROM THE OPERATION
OF THESE RULES.  THE RULES OF THIS PART SHALL APPLY REGARDLESS OF
WHETHER THE FOREGOING BOXCARS ARE IN INTRASTATE, INTERSTATE, OR FOREIGN
COMMERCE." 

AS I HAVE NOTED, SEC. 1036.2 CONTAINS A SCHEDULE OF PER DIEM RATES
OR FEES FOR THE USE OF ANOTHER'S BOXCARS WHICH HAVE BEEN SHUNTED ONTO
ITS TRACKS, THE RATES OR FEES BEING DEFINITE OR PRECISE AND CONTROLLED
BY TWO VARIABLES:  THE COST OF THE BOXCARS AND THE AGES OF THE
BOXCARS.  THESE RATES OR FEES, ACCORDING TO THE RECORD, AMOUNT TO
MILLIONS OF DOLLARS A YEAR. 

/6/  THE COMMISSION DISCUSSES THE CRITICAL FACTUAL ISSUES TO BE
RESOLVED IN FIXING INCENTIVE COMPENSATION RATES UNDER SEC. 1(14)(A) IN
INCENTIVE PER DIEM CHARGES, 332 I.C.C. 11, 14-15: 

"BEFORE AN INCENTIVE ELEMENT, EITHER INTERIM OR LONG-TERM, CAN BE
ADDED TO THE PER DIEM CHARGE FOR THE USE OF ANY PARTICULAR TYPE OF
FREIGHT CAR, WE ARE REQUIRED TO GIVE CONSIDERATION TO THE NATIONAL
LEVEL OF OWNERSHIP OF THAT TYPE OF CAR AND TO OTHER FACTORS AFFECTING
THE ADEQUACY OF THE NATIONAL FREIGHT CAR SUPPLY.  WE HAVE OBSERVED THAT
THE ADEQUACY OF THE NATIONAL FREIGHT CAR FLEET DEPENDS UPON THE
INTERPLAY OF A NUMBER OF FACTORS, NONE OF WHICH CAN BE SAID TO BE A
SUPERIOR IMPORTANCE.  FURTHER, SINCE THE EFFECT OF AN INCENTIVE CHARGE
MUST BE PRODUCED OVER A FUTURE PERIOD, CONSIDERATION MUST BE GIVEN TO
POSSIBLE CHANGES IN THESE FACTORS.  IN RECENT YEARS MANY INNOVATIONS
AND IMPROVEMENTS HAVE TAKEN PLACE IN CAR DESIGN AND OPERATION.  IN THE
TRANSPORTATION OF MANY COMMODITIES THE STANDARD BOXCAR HAS BEEN
REPLACED BY CARS CAPABLE OF TRANSPORTING GREATER LOADS WITH
SUBSTANTIALLY LESS DAMAGE.  IN THE TRANSPORTATION OF GRAINS, RAILROADS
ARE CONVERTING MORE AND MORE TO THE USE OF LARGE COVERED HOPPER CARS. 
SHIPPERS OF LUMBER AND PLYWOOD HAVE FOUND MODERN CARS DESIGNED TO
FACILITATE TRANSPORTATION OF THEIR PRODUCTS INCREASINGLY DESIRABLE.  AT
THE SAME TIME, MANY OF THESE CARS ARE ADAPTABLE TO THE TRANSPORTATION
OF OTHER COMMODITIES WHEN NOT NEEDED IN THE PARTICULAR TRADE FOR WHICH
THEY WERE DESIGNED.  IN LARGE PART, THE SPECIAL SERVICE BOXCARS,
COVERED HOPPERS AND FLATCARS OF VARIOUS TYPES HANDLE TRAFFIC WHICH
FORMERLY MOVED IN GENERAL SERVICE BOXCARS.  THE SAME IS TRUE TO SOME
EXTENT WITH RESPECT TO REFRIGERATOR CARS.  THEIR LARGER SIZE AND, WITH
RESPECT TO THE FLATCARS IN TRAILER-ON-FLATCAR (TOFC) SERVICE, THEIR
MORE RAPID TURNAROUND, ENABLES THEM TO PROVIDE SERVICE BOXCARS WHICH
THEY REPLACED. 

"VALID CONCLUSIONS AS TO THE TYPES OF CARS, THE CONSTRUCTION OF
WHICH FOR FUTURE USE IS TO BE ENCOURAGED BY APPLICATION OF EITHER AN
INTERIM OR LONG-RANGE INCENTIVE CHARGE, AND WHICH MUST BE FOUND TO BE
IN INADEQUATE SUPPLY PURSUANT TO THE STATUTORY REQUIREMENT, NECESSARILY
REQUIRE CONSIDERATION OF THE EXTENT TO WHICH THE TRANSPORTATION SERVICE
THEY PERFORM IS OR CAN ALSO BE PROVIDED BY CARS OF OTHER TYPES.  SUCH
CONSIDERATION REQUIRES A THOROUGH ANALYSIS OF THE SERVICES CURRENTLY
DESIRED BY THE SHIPPING PUBLIC AND THOSE REASONABLY TO BE ANTICIPATED
IN THE FUTURE.  AN OVERALL, NATIONWIDE REVIEW OF TRAFFIC AND SERVICE
DEMANDS AND TRENDS MUST PRECEDE ANY VALID DETERMINATION OF THE EXISTING
OR PROSPECTIVE NATIONAL REQUIREMENTS FOR FREIGHT CARS OF PARTICULAR
TYPES.  IT IS QUITE OBVIOUS THAT APPLICATION OF AN INCENTIVE CHARGE
WHICH SERVED TO ENCOURAGE THE ACQUISITION OF CARS NOT ADAPTABLE TO
EFFICIENT PROVISION OF NEEDED SERVICE OVER THEIR NORMAL LIFETIME WOULD
NOT BE IN THE NATIONAL INTEREST.  SHIPPER NEED, DEMAND AND ACCEPTANCE
WITH RESPECT TO FUTURE EQUIPMENT IS A SIGNIFICANT FACTOR." 

/7/  IN ITS FINAL REPORT, THE COMMISSION APPARENTLY STILL BELIEVED
THAT ITS PROCEEDINGS HAD TO COMPLY WITH THE PROVISIONS OF SEC. 556 OF
THE ADMINISTRATIVE PROCEDURE ACT.  THE REPORT STATED THAT THE PARTIES
HAD BEEN GRANTED A HEARING IN ACCORDANCE WITH THOSE PROVISIONS.  337
I.C.C.,AT PAGE 219. 

/8/  MORGAN II CONSIDERED IN SOME DEPTH THE PARAMETERS OF A "FULL
HEARING."  THE MAJORITY TAKES THE POSITION THAT THE CASE IS INAPPOSITE
BECAUSE THE HEARINGS PROVIDED IN THIS CASE DO NOT "SUFFER FROM THE
DEFECT FOUND TO BE FATAL IN MORGAN"-- I.E., THE PARTIES WERE "FAIRLY
ADVISED" OF THE SCOPE AND SUBSTANCE OF THE COMMISSION PROCEEDINGS.  IN
MORGAN II, HOWEVER, THERE WAS NO QUESTION THAT A "FULL HEARING"
INCLUDED THE RIGHT TO PRESENT ORAL TESTIMONY AND ARGUMENT.  304 U.S. 1,
18-20. 

SAMUEL HUNTINGTON ARGUED THE CAUSE FOR THE UNITED STATES ET AL. WITH
HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL KAUPER, FRITZ R. KAHN, AND LEONARD S. GOODMAN. 

A. ALVIS LAYNE ARGUED THE CAUSE FOR APPELLEE FLORIDA EAST COAST
RAILWAY CO. WITH HIM ON THE BRIEF WAS WALTER G. ARNOLD.  RICHARD A.
HOLLANDER ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE SEABOARD
COAST LINE RAILROAD CO.
..END :











UNITED STATES V. CHANDLER, 410 U.S. 257 


       UNITED STATES V. CHANDLER ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

  NINTH CIRCUIT

        NO. 72-438.  DECIDED JANUARY 22, 1973 


UNITED STATES SAVINGS BONDS ARE INCLUDABLE FOR FEDERAL ESTATE TAX
PURPOSES IN THE GROSS ESTATE OF A DECEDENT REGISTERED CO-OWNER WHO,
WITH DONATIVE INTENT, HAD DELIVERED THE BONDS TO THE OTHER CO-OWNERS
BUT WHO HAD NOT COMPLIED WITH APPLICABLE TREASURY DEPARTMENT
REGULATIONS FOR MAKING INTER VIVOS TRANSFERS OF SUCH BONDS BY HAVING
THEM REISSUED IN THE NAMES OF THE OTHER CO-OWNERS ALONE. 

CERTIORARI GRANTED; 460 F.2D 1281, REVERSED. 

PER CURIAM. 

THIS CASE PRESENTS A NARROW FEDERAL ESTATE TAX ISSUE:  DOES A
REGISTERED CO-OWNER OF A UNITED STATES SAVINGS BOND, SERIES E, BY
PHYSICAL INTER VIVOS DELIVERY OF THE BOND TO THE OTHER REGISTERED CO
OWNER, WITH INTENT TO EFFECTUATE A GIFT, BUT WITHOUT REISSUANCE OF THE
BOND, SUCCEED IN DIVESTING HIMSELF OF THE INCIDENTS OF OWNERSHIP SO
THAT, AT HIS SUBSEQUENT DEATH, THE VALUE OF THE BOND IS NOT INCLUDABLE
IN HIS GROSS ESTATE UNDER THE JOINT INTERESTS PROVISIONS OF SEC. 2040
OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. 2040? 

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA RULED THAT THE CO-OWNER HAD ACCOMPLISHED THIS DIVESTITURE,
AND IT RENDERED JUDGMENT IN FAVOR OF THE TAXPAYER-ESTATE.  312 F.SUPP. 
1263 (1970).  THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMED FOR THE REASONS SET OUT IN THE DISTRICT COURT'S OPINION.  460
F.2D 1281 (1972).  THE SIXTH CIRCUIT THEREFORE HAD HELD TO THE CONTRARY
ON A FACT SITUATION SIMILAR TO THAT OF THE PRESENT CASE.  ESTATE OF
CURRY V. UNITED STATES, 409 F.2D 671 (1969).  THERE ARE OTHER DECISIONS
TO LIKE EFFECT.  ESTATE OF ELLIOTT V. COMMISSIONER, 57 T.C. 152 (1971),
REVIEWED BY THE COURT AND NOW PENDING ON APPEAL TO THE FIFTH CIRCUIT;
CHAMBLESS V. UNITED STATES, 70-1 U.S.T.C.PARA.  12,655, 25 A.F.T.R.2D
70-1512 (SC 1970).  THE THIRD CIRCUIT, HOWEVER, PREVIOUSLY HAD RULED
SWEEPINGLY ALONG THE LINES FOLLOWED BY THE NINTH CIRCUIT HERE. 
SILVERMAN V. MCGINNES, 259 F.2D 731 (1958). 

WE GRANT CERTIORARI AND REVERSE. 

        I 

THE DECEDENT, MARY E. BAUM, PURCHASED SEVERAL UNITED STATES SAVINGS
BONDS, SERIES E., IN 1954.  SHE HAD THEM ISSUED IN THE FAMILIAR CO
OWNERSHIP FORM.  SOME WERE IN THE NAMES OF MRS. BAUM "OR" PATRICIA
RITTER, A GRANDDAUGHTER.  OTHERS WERE IN THE NAMES OF MRS. BAUM "OR"
BEATRICE BAUM, ANOTHER GRANDDAUGHTER.  IN 1961 THE DECEDENT DELIVERED
THESE BONDS TO THE RESPECTIVE GRANDDAUGHTERS, WITH THE INTENTION OF
MAKING COMPLETE, IRREVOCABLE, INTER VIVOS GIFTS.  /1/ 

MRS. BAUM DIED IN 1962.  AT HER DEATH THE BONDS WERE STILL IN THE
ORIGINAL CO-OWNERSHIP FORM.  THEY HAD NOT BEEN REDEEMED.  NEITHER HAD
THEY BEEN REISSUED, AS THEY MIGHT HAVE BEEN UNDER THE APPLICABLE
REGULATIONS, IN THE NAMES OF THE RESPECTIVE GRANDDAUGHTERS AS SOLE
OWNERS. 

THE RESPONDENTS, WHO ARE EXECUTORS OF THE DECEDENT'S WILL, DISCLOSED
THE BONDS IN THE FEDERAL ESTATE TAX RETURN FILED FOR THE DECEDENT'S
ESTATE BUT DID NOT INCLUDE THEM IN THE GROSS ESTATE.  ON AUDIT, THE
INTERNAL REVENUE SERVICE RULED THAT THE BONDS WERE INCLUDABLE.  A
RESULTING DEFICIENCY IN ESTATE TAX WAS ASSESSED AND WAS PAID BY THE
RESPONDENTS.  THE PRESENT SUIT FOR REFUND OF THE TAX ATTRIBUTABLE TO
THE INCLUSION OF THE BONDS WAS INSTITUTED IN DUE COURSE. 

        II 

DECEDENT'S DEATH THE SECTION PROVIDED THAT THERE SHALL BE INCLUDED IN A
DECEDENT'S GROSS ESTATE, WITH EXCEPTIONS NOT HERE PERTINENT, "THE VALUE
OF ALL PROPERTY . . . TO THE EXTENT OF THE INTEREST THEREIN HELD AS
JOINT TENANTS BY THE DECEDENT AND ANY OTHER PERSON . . . IN THEIR JOINT
NAMES AND PAYABLE TO EITHER OR THE SURVIVOR . . . " 

TITLE 31 U.S.C. 757(A) /2/  AUTHORIZES THE SECRETARY OF THE TREASURY
TO ISSUE UNITED STATES SAVINGS BONDS "IN SUCH MANNER AND SUBJECT TO
SUCH TERMS AND CONDITIONS CONSISTENT WITH SUBSECTIONS (B)-(D) OF THIS
SECRETARY OF THE TREASURY MAY FROM TIME TO TIME PRESCRIBE". 

PURSUANT TO THIS AUTHORIZATION, THE SECRETARY ISSUED REGULATIONS ON
UNITED STATES SAVINGS BONDS.  THE FIRST WERE THOSE THAT APPEARED IN
DEPARTMENT CIRCULAR 571, DATED DECEMBER 16, 1936, 1 FED.REG.  2165. 
THEY HAVE BEEN REVISED FROM TIME TO TIME.  THE EIGHTH REVISION WAS IN
EFFECT IN 1961 WHEN MRS. BAUM DELIVERED THE BONDS IN QUESTION TO HER
RESPECTIVE GRANDDAUGHTERS. 

THAT THE "FORM OF REGISTRATION USED MUST EXPRESS THE ACTUAL OWNERSHIP
OF AND INTEREST IN THE BOND AND . . . WILL BE CONSIDERED AS CONCLUSIVE
OF SUCH OWNERSHIP AND INTEREST."  SECTION 315.7 AUTHORIZED REGISTRATION
IN THE NAMES OF TWO PERSONS IN THE ALTERNATIVE AS CO-OWNERS, AND
STATED, "NO OTHER FORM OF REGISTRATION ESTABLISHING CO-OWNERSHIP IS
AUTHORIZED." 

NOT TRANSFERABLE . . . EXCEPT AS SPECIFICALLY PROVIDED IN THE
REGULATIONS . . . "  SECTION 315.60 PROVIDED THAT A SAVINGS BOND
REGISTERED IN CO-OWNERSHIP FORM WILL BE PAID, DURING THE LIVES OF BOTH
CO-OWNERS, "TO EITHER UPON HIS SEPARATE REQUEST," IN WHICH CASE THE
OTHER "SHALL CEASE TO HAVE ANY INTEREST IN THE BOND," OR WILL BE
REISSUED, DURING THE LIVES OF BOTH CO-OWNERS, UPON THE REQUEST OF BOTH,
IN THE "NAME OF EITHER, ALONE OR WITH A NEW CO-OWNER OR BENEFICIARY,"
IF, IN THE CASE OF REISSUANCE, THE CO-OWNERS POSSESSED ONE OF A NUMBER
OF SPECIFICALLY ENUMERATED RELATIONSHIPS, INCLUDING "GRANDPARENT AND
GRANDCHILD." 

OWNER.  THE SURVIVOR IS RECOGNIZED "AS THE SOLE AND ABSOLUTE OWNER,"
AND PAYMENT OR REISSUE IS "MADE AS THOUGH THE BOND WERE REGISTERED IN
THE NAME OF THE SURVIVOR ALONE," EXCEPT THAT THE REQUEST MUST BE
SUPPORTED BY PROOF OF DEATH OF THE OTHER CO-OWNER. 

THE REGULATIONS THUS MADE THE JOINTLY ISSUED BOND NONTRANSFERABLE IN
ITSELF AND PERMITTED A CHANGE IN OWNERSHIP, SO LONG AS BOTH CO-OWNERS
WERE ALIVE, ONLY THROUGH REISSUE AT THE REQUEST OF BOTH CO-OWNERS. 

        III 

MARY E. BAUM, THE DECEDENT HERE, WHATEVER THE REASON MAY HAVE BEEN,
CHOSE NOT TO HAVE THE BONDS IN QUESTION REISSUED IN THE NAMES OF HER
GRANDDAUGHTERS, AS SHE MIGHT HAVE DONE PURSUANT TO THE APPLICABLE
REGULATIONS.  INSTEAD, SHE MERELY DELIVERED THE BONDS TO THE
GRANDDAUGHTERS WITH DONATIVE INTENT.  OUR ISSUE IS WHETHER THAT
DELIVERY, ACCOMPANIED BY THAT DONATIVE INTENT, WAS SUFFICIENT TO REMOVE
THE BONDS FROM THE DECEDENT'S GROSS ESTATE.  WE CONCLUDE THAT IT WAS
NOT. 

WE HAVE NO REASON TO RULE AGAINST THE INTEGRITY AND EFFECT OF THE
REGULATIONS.  THE ISSUANCE OF THE BONDS BY THE SECRETARY, SUBJECT TO
SUCH "RESTRICTIONS ON THEIR TRANSFER" AS THE SECRETARY MAY PRESCRIBE,
WAS CLEARLY AUTHORIZED BY THE CONGRESS IN 31 U.S.C. 757CA).  AND THE
RESTRICTIONS ON THEIR TRANSFER WERE JUST AS CLEARLY SPELLED OUT BY THE
SECRETARY IN HIS REGULATIONS.  NO CLAIM IS MADE-- AND NONE COULD BE
MADE-- THAT THE REGULATIONS ARE UNCLEAR OR ARE INAPPLICABLE TO MRS.
BAUM'S PURPORTED TRANSFERS.  NOR CAN WE VIEW THE REGULATIONS AS AN
UNDUE OR IMPROPER RESTRICTION OF THE TRANSFER RIGHTS THE DECEDENT WOULD
OTHERWISE HAVE.  THE BONDS WERE ISSUED SUBJECT TO TRANSFER
RESTRICTIONS, AND THOSE RESTRICTIONS, IN THE EYES OF THE LAW AT LEAST,
WERE KNOWN TO HER.  SHE COULD HAVE HAD THE BONDS ISSUED ORIGINALLY IN
THE SOLE NAMES OF THE GRANDCHILDREN, BUT SHE CHOSE THE CO-OWNERSHIP
FORM AND, AS HER LATER ATTEMPTS AT TRANSFER REVEAL, SHE CHOSE TO RETAIN
POSSESSION OF THEM.  HAVING DONE SO, SHE WAS OBLIGATED TO PLAY THE GAME
ACCORDING TO THE RULES. 

THE DECISIONS BELOW ALSO OVERLOOK THE FACTS THAT UNTIL HER DEATH,
THE DECEDENT RETAINED THE RIGHT TO REDEEM EACH OF THE BONDS IN
QUESTION, THE RIGHT TO SUCCEED TO THE PROCEEDS IF SHE SURVIVED THE
PUTATIVE DONEE, AND THE RIGHT TO JOIN OR TO VETO ANY ATTEMPT TO HAVE
THE BONDS REISSUED.  31 CFR 315.61 (1959 REVISION).  /3/ 

WE NOTE, IN PASSING, THAT ANY OTHER RULE COULD WELL LEAD TO CHAOTIC
CONDITIONS WITH RESPECT TO SAVINGS BONDS AND TO GREAT POTENTIAL FOR
ABUSE.  MILLIONS OF THESE BONDS ARE OUTSTANDING.  /4/  THE REQUIREMENTS
OF GOVERNMENT FOR UNIFORMITY AND FOR PROPER RECORDKEEPING ALONE DEMAND
AND JUSTIFY SOMETHING LESS THAN ABSOLUTE FREEDOM OF TRANSFER. 
CONSIDERATIONS OF SAFETY AND AN ASPECT OF PERMANENCY OF INVESTMENT ARE
ADDITIONAL FACTORS THAT DEMAND THE SAME RESULT. 

OUR CONCLUSION, WE FEEL, IS REQUIRED, BY THE HOLDING IN FREE V.
BLAND, 369 U.S. 663 (1962).  THERE THE COURT HELD THAT, ABSENT FRAUD,
THE REGULATIONS CREATING A RIGHT OF SURVIVORSHIP IN UNITED STATES
SAVINGS BONDS ISSUED IN CO-OWNERSHIP FORM OVERRODE OR PRE-EMPTED ANY
INCONSISTENT STATE PROPERTY LAW.  WE STRESSED THERE, AS WE DO HERE,
THAT A CONTRARY RESULT WOULD FAIL "TO GIVE EFFECT TO A TERM OR
CONDITION UNDER WHICH A FEDERAL BOND IS ISSUED."  ID., AT 669.  WE SEE
NOTHING IN THE EARLIER CASE OF BANK OF AMERICA TRUST & SAVINGS ASSN. V.
PARNELL, 352 U.S. 29 (1956), THAT IMPLIES ANYTHING TO THE CONTRARY. 
THAT CASE WAS ALSO DISTINGUISHED IN FREE V. BLAND, 369 U.S.,AT 669. 

   REVERSED. 

/1/  IT IS STIPULATED THAT THESE DELIVERIES WERE NOT MADE IN
CONTEMPLATION OF DEATH.  SECTION 2035 OF THE 1954 CODE, 26 U.S.C. 2035,
RELATING TO TRANSFERS IN CONTEMPLATION OF DEATH, THEREFORE HAS NO
APPLICATION. 

/2/  THIS IS SEC. 22(A) OF THE SECOND LIBERTY BOND ACT, 40 STAT.
288, AS ADDED BY SEC. 6 OF THE ACT OF FEB. 4, 1935, 49 STAT. 21, AND AS
AMENDED BY SEC. 3 OF THE PUBLIC DEBT ACT OF 1941, 55 STAT. 7. 

/3/  THE DISTRICT COURT, AND THE COURT OF APPEALS IN ADOPTING THE
DISTRICT COURT'S OPINION, STATED THAT EITHER CO-OWNER COULD HAVE HAD
THE BONDS, "REISSUED WITHOUT EVEN THE SIGNATURE OF THE OTHER."  312
F.SUPP.  1263, 1268.  THIS IGNORES THE POSITIVE REQUIREMENT OF SEC.
315.60 THAT REISSUE IS TO BE "UPON THE REQUEST OF BOTH." 

/4/  THE GOVERNMENT IN ITS PETITION, P. 8, ASSERTS THAT
APPROXIMATELY 500 MILLION SERIES E BONDS ARE OUTSTANDING, THAT THESE
ARE WORTH OVER 50 BILLION DOLLARS, AND THAT 75% OF THEM ARE REGISTERED
IN CO-OWNERSHIP FORM. 
..END :








GOOSBY V. OSSER, 409 U.S. 512 


       GOOSBY ET AL. V. OSSER ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

        NO. 71-6316.  ARGUED DECEMBER 6-7, 1972-- DECIDED JANUARY

           17, 1973 


PHILADELPHIA COUNTY PRISONERS UNABLE TO MAKE BAIL OR BEING HELD ON
NONBAILABLE OFFENSES BROUGHT THIS CLASS ACTION, ASSERTING THE
UNCONSTITUTIONALITY OF PENNSYLVANIA ELECTION CODE PROVISIONS DENYING
THEM THE RIGHT TO VOTE.  WHEN THE COMMONWEALTH (BUT NOT THE MUNICIPAL)
OFFICIALS WHO WERE NAMED AS DEFENDANTS CONCEDED THE CODE PROVISIONS'
UNCONSTITUTIONALITY, THE DISTRICT JUDGE (DEEMING THE COMMONWEALTH
OFFICIALS THE PRINCIPAL DEFENDANTS) RULES THE CASE NONJUSTICIABLE AS
NOT INVOLVING AN ART. III CASE OR CONTROVERSY, AND DISMISSED THE
COMPLAINT.  THE COURT OF APPEALS, THOUGH DIFFERING AS TO
JUSTICIABILITY, AFFIRMED ON THE GROUND THAT PETITIONERS' CONSTITUTIONAL
CLAIMS WERE WHOLLY INSUBSTANTIAL UNDER MCDONALD V. BOARD OF ELECTION
COMM'ERS, 394 U.S. 802, AND RULED THAT A THREE-JUDGE DISTRICT COURT WAS
THEREFORE NOT REQUIRED UNDER 28 U.S.C. 2281.  HELD: 

1.  THE COMMONWEALTH OFFICIALS' CONCESSION DID NOT FORECLOSE THE
EXISTENCE OF AN ART. III CASE OR CONTROVERSY SINCE THE MUNICIPAL
OFFICIALS CONTINUE TO ASSERT THE RIGHT TO ENFORCE THE CHALLENGED CODE
PROVISIONS.  PP. 516-517. 

2.  MCDONALD, SUPRA, UNLIKE THE SITUATION ALLEGED HERE, DID NOT DEAL
WITH AN ABSOLUTE PROHIBITION AGAINST VOTING BY THE PRISONERS THERE
INVOLVED, AND THAT DECISION DOES NOT "FORECLOSE THE SUBJECT" OF
PETITIONERS' CHALLENGE TO THE PENNSYLVANIA STATUTORY SCHEME.  THE CASE
MAY, IF APPROPRIATE, THEREFORE BE HEARD BY A THREE-JUDGE DISTRICT
COURT.  PP. 518-523. 

452 F.2D 39, REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER 28 U.S.C. 2281 /1/  REQUIRED THE CONVENING OF
A THREE-JUDGE COURT IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA TO HEAR THIS CASE.  IT IS A CLASS ACTION BROUGHT BY AND ON
BEHALF OF PERSONS AWAITING TRIAL AND CONFINED IN PHILADELPHIA COUNTY
PRISONS BECAUSE EITHER UNABLE TO AFFORD BAIL OR BECAUSE CHARGED WITH
NONBAILABLE OFFENSES.  THE COMPLAINT ALLEGES THAT PROVISIONS OF THE
PENNSYLVANIA ELECTION CODE, IN VIOLATION OF THE EQUAL PROTECTION AND
DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT, ABSOLUTELY DENY
PETITIONERS' CLASS THE RIGHT TO VOTE IN THAT THEY NEITHER PERMIT
MEMBERS OF THE CLASS TO LEAVE PRISON TO REGISTER AND VOTE, NOR PROVIDE
FACILITIES FOR THE PURPOSE AT THE PRISONS, AND THAT THEY EXPRESSLY
PROHIBIT PERSONS "CONFINED IN PENAL INSTITUTIONS" FROM VOTING BY
ABSENTEE BALLOT.  /2/  THE COMPLAINT NAMES AS DEFENDANTS TWO
COMMONWEALTH OFFICIALS, THE ATTORNEY GENERAL AND SECRETARY OF STATE OF
PENNSYLVANIA, AND CERTAIN MUNICIPAL OFFICIALS OF THE COUNTY AND CITY OF
PHILADELPHIA; THE CITY COMMISSIONERS OF PHILADELPHIA WHO CONSTITUTE THE
BOARD OF ELECTIONS AND REGISTRATION COMMISSION OF THE CITY AND COUNTY
OF PHILADELPHIA, THE VOTING REGISTRATION SUPERVISOR FOR THE CITY AND
COUNTY, AND THE SUPERINTENDENT OF PRISONS FOR THE COUNTY. 

ON ORAL ARGUMENT BEFORE A SINGLE JUDGE ON ETITIONERS' MOTION FOR A
TEMPORARY RESTRAINING ORDER, THE COMMONWEALTH OFFICIALS APPEARED BY A
DEPUTY ATTORNEY GENERAL, WHO CONCEDED THAT THE CHALLENGED PROVISIONS OF
THE ELECTION CODE, AS APPLIED TO THE PETITIONERS' CLASS, WERE
UNCONSTITUTIONAL UNDER THE FOURTEENTH AMENDMENT.  THE MUNICIPAL
OFFICIALS, ON THE OTHER HAND, VIGOROUSLY DEFENDED THE CONSTITUTIONALITY
OF THE PROVISIONS AS SO APPLIED.  THE SINGLE JUDGE DEEMED THE CONTRARY
VIEW OF THE MUNICIPAL OFFICIALS TO BE IRRELEVANT, AS HE REGARDED THE
COMMONWEALTH OFFICIALS TO BE THE "PRINCIPAL DEFENDANTS."  SEE N. 3,
INFRA.  HE THEREFORE RULED THAT THE CONCESSION ON BEHALF OF THE
COMMONWEALTH OFFICIALS MEANT THERE WAS NO CASE OR CONTROVERSY BEFORE
THE COURT AS REQUIRED BY ART. III OF THE CONSTITUTION, AND DISMISSED
THE COMPLAINT.  /3/  ON PETITIONERS' APPEAL, THE COURT OF APPEALS FOR
THE THIRD CIRCUIT AFFIRMED.  452 F.2D 39 (1971).  WE DO NOT, HOWEVER,
READ THE PER CURIAM OPINION OF THE COURT OF APPEALS AS RESTING THE
AFFIRMANCE ON AGREEMENT WITH THE SINGLE JUDGE THAT THE CONCESSION OF
THE COMMONWEALTH OFFICIALS MEAN THERE WAS NO CASE OR CONTROVERSY BEFORE
THE COURT.  RATHER, WE READ THE PER CURIAM OPINION AS EITHER IMPLYING
DISAGREEMENT WITH THE SINGLE JUDGE ON THAT QUESTION, OR AS AT LEAST
ASSUMING THAT A CASE OR CONTROVERSY EXISTED, FOR THE OPINION STATES
THAT, IN THE VIEW OF THE COURT OF APPEALS, PETITIONERS' CONSTITUTIONAL
CLAIMS WERE WHOLLY INSUBSTANTIAL UNDER MCDONALD V. BOARD OF ELECTION
COMM'RS, 394 U.S. 802 (1969), IN WHICH CIRCUMSTANCE, THE COURT OF
APPEALS HELD, BAILEY V. PATTERSON, 369 U.S. 31 (1962), WAS AUTHORITY
THAT 28 U.S.C. 2281 DID NOT REQUIRE THE ASSEMBLY OF A THREE-JUDGE COURT
AND THAT DISMISSAL BY THE SINGEL JUDGE WAS THEREFORE PROPER, 452 F.2D,
AT 40.  A PETITION FOR REHEARING EN BANC WAS DENIED, THREE JUDGES
DISSENTING.  WE GRANTED CERTIORARI, 408 U.S. 922 (1972).  WE REVERSE
THE JUDGMENT OF THE COURT OF APPEALS AND REMAND WITH DIRECTION TO ENTER
AN APPROPRIATE ORDER PURSUANT TO 28 U.S.C. 2281 FOR THE CONVENING OF A
THREE-JUDGE COURT TO HEAR THIS CASE. 

        I 

THE SINGLE JUDGE CLEARLY ERRED IN HOLDING THAT THE CONCESSION OF THE
COMMONWEALTH OFFICIALS FORECLOSED THE EXISTENCE OF A CASE OR
CONTROVERSY.  ALL PARTIES ARE IN ACCORD THAT PENNSYLVANIA LAW DID NOT
OBLIGE THE MUNICIPAL OFFICIALS TO DEFER TO THE CONCESSION OF THE
COMMONWEALTH OFFICIALS, OR OTHERWISE GIVE THE COMMONWEALTH OFFICIALS A
SPECIAL STATUS AS "PRINCIPAL DEFENDANTS."  /4/  INDEED, THE BRIEF FILED
IN THIS COURT BY THE COMMONWEALTH OFFICIALS FORTHRIGHTLY ARGUES THAT
"(THE DISTRICT COURT MADE AN EREGIOUS ERROR.  THE ATTORNEY GENERAL AND
THE SECRETARY OF THE COMMONWEALTH ARE NOT THE ONLY DEFENDANTS IN THIS
CASE.  THE CITY COMMISSIONERS OF PHILADELPHIA, THE VOTING REGISTRATION
SUPERVISOR, THE REGISTRATION COMMISSION, AND THE SUPERINTENDENT OF
PRISONS FOR PHILADELPHIA COUNTY ARE ALSO PARTIES.  THESE PARTIES HAVE
CONTESTED VIGOROUSLY THE ISSUES RAISED BY PETITIONERS BOTH IN THE
DISTRICT COURT AND ON APPEAL.  THEY HAVE PROVIDED ADVERSITY OF
INTEREST, AND WILL SHARPLY DEFINE THE ISSUES, TO THE EXTENT THEY ARE
NOT ALREADY CLEAR."  BRIEF FOR RESPONDENTS COMMONWEALTH OF PENNSYLVANIA
ET AL. 4-5.  /5/ 

THUS, THERE IS SATISFIED THE REQUISITE OF ART. III THAT "(THE
CONSTITUTIONAL QUESTION . . . BE PRESENTED IN THE CONTEXT OF A SPECIFIC
LIVE GRIEVANCE."  GOLDEN V. ZWICKLER, 394 U.S. 103, 110 (1969).  AS
BETWEEN PETITIONERS AND THE MUNICIPAL OFFICIALS, THE DISTRICT COURT WAS
"CALLED UPON TO ADJUDGE THE LEGAL RIGHTS OF LITIGANTS IN ACTUAL
CONTROVERSIES,"  LIVERPOOL, N.Y. & P.S.S. CO. V. COMMISSIONERS OF
EMIGRATION, 113 U.S. 33, 39 (1885), AND "THE INTERESTS OF (PETITIONERS'
CLASS) REQUIRE THE USE OF . . . JUDICIAL AUTHORITY FOR (PETITIONERS'1
PROTECTION AGAINST ACTUAL INTERFERENCE."  UNITED PUBLIC WORKERS OF
AMERICA V. MITCHELL, 330 U.S. 75, 90 (1947).  SINCE THE MUNICIPAL
OFFICIALS PERSIST IN THEIR ASSERTED RIGHT TO ENFORCE THE CHALLENGED
PROVISIONS OF THE ELECTION CODE, THERE IS A "REAL AND SUBSTANTIAL
CONTROVERSY" "TOUCHING THE LEGAL RELATIONS OF PARTIES HAVING ADVERSE
LEGAL INTERESTS," AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240-241
(1937), IN WHICH CIRCUMSTANCE THE CONCESSION OF THE COMMONWEALTH
OFFICIALS COULD NOT HAVE THE EFFECT OF DISSIPATING THE EXISTENCE OF A
CASE OR CONTROVERSY.  CF. IN RE METROPOLITAN RAILWAY RECEIVERSHIP, 208
U.S. 90, 107-108 (1908). 

      II 

THE COURT OF APPEALS ALSO ERRED.  WE DISAGREE WITH ITS HOLDING THAT
MCDONALD V. BOARD OF ELECTION COMM'RS, SUPRA, RENDERED PETITIONERS'
CONSTITUTIONAL CLAIMS WHOLLY INSUBSTANTIAL. 

TITLE 28 U.S.C. 2281 DOES NOT REQUIRE THE CONVENING OF A THREE-JUDGE
COURT WHEN THE CONSTITUTIONAL ATTACK UPON THE STATE STATUTES IS
INSUBSTANTIAL.  "CONSTITUTIONAL INSUBSTANTIALITY" FOR THIS PURPOSE HAS
BEEN EQUATED WITH SUCH CONCEPTS AS "ESSENTIALLY FICTITIOUS," BAILEY V.
PATTERSON, 369 U.S., AT 33; "WHOLLY INSUBSTANTIAL," IBID.; "OBVIOUSLY
FRIVOLOUS," HANNIS DISTILLING CO. V. BALTIMORE, 216 U.S. 285, 288
(1910); AND "OBVIOUSLY WITHOUT MERIT," EX PARTE PORESKY, 290 U.S, 30,
32 (1933).  THE LIMITING WORDS "WHOLLY" AND "OBVIOUSLY"  HAVE COGENT
LEGAL SIGNIFICANCE.  IN THE CONTEXT OF THE EFFECT OF PRIOR DECISIONS
UPON THE SUBSTANTIALITY OF CONSTITUTIONAL CLAIMS, THOSE WORDS IMPORT
THAT CLAIMS ARE CONSTITUTIONALLY INSUBSTANTIAL ONLY IF THE PRIOR
DECISIONS INESCAPABLY RENDER THE CLAIMS FRIVOLOUS; PREVIOUS DECISIONS
THAT MERELY RENDER CLAIMS OF DOUBTFUL OR QUESTIONABLE MERIT DO NOT
RENDER THEM INSUBSTANTIAL FOR THE PURPOSES OF 28 U.S.C. 2281.  A CLAIM
IS INSUBSTANTIAL ONLY IF "'ITS UNSOUNDNESS SO CLEARLY RESULTS FROM THE
PREVIOUS DECISIONS OF THIS COURT AS TO FORECLOSE THE SUBJECT AND LEAVE
NO ROOM FOR THE INFERENCE THAT THE QUESTIONS SOUGHT TO BE RAISED CAN BE
THE SUBJECT OF CONTROVERSY.'"  EX PARTE PORESKY, SUPRA, AT 32, QUOTING
FROM HANNIS DISTILLING CO. V. BALTIMORE, SUPRA, AT 288; SEE ALSO
LEVERING & GARRIGUES CO. V. MORRIN, 289 U.S. 103, 105-106 (1933);
MCGILVRA V. ROSS, 215 U.S. 70, 80 (1909).  UNDER THIS TEST, IT IS CLEAR
THAT MCDONALD IS NOT A PRIOR DECISION OF THIS COURT THAT "FORECLOSESS)
THE SUBJECT" OF PETITIONERS' CONSTITUTIONAL ATTACK UPON PENNSYLVANIA
STATUTORY SCHEME; IT IS DEMONSTRABLY NOT A DECISION THAT "LEAVES) NO
ROOM FOR THE INFERENCE THAT THE QUESTION SOUGHT TO BE RAISED (BY
PETITIONERS) CAN BE THE SUBJECT OF CONTROVERSY." 

IN MCDONALD, APPELLANTS WERE A CLASS OF PRETRIAL DETAINEES IN COOK
COUNTY, ILLINOIS, ALREADY REGISTERED TO VOTE, WHO SOUGHT TO VOTE ONLY
BY ABSENTEE BALLOT.  THEIR TIMELY APPLICATIONS TO THE COOK COUNTY BOARD
OF ELECTION COMMISSIONERS FOR ABSENTEE BALLOTS WERE DENIED ON THE
GROUND THAT PRETRIAL DETAINEES WERE NOT INCLUDED AMONG THOSE PERSONS
SPECIFICALLY PERMITTED BY THE ILLINOIS ELECTION CODE TO VOTE BY
ABSENTEE BALLOT.  APPELLANTS BROUGHT SUIT ALLEGING THAT IN THAT
CIRCUMSTANCE THE ILLINOIS ELECTION CODE DENIED THEM EQUAL PROTECTION OF
THE LAWS, PARTICULARLY AS THE CODE PROVIDED ABSENTEE BALLOTS FOR THOSE
"MEDICALLY INCAPACITATED," AND FOR PRETRIAL DETAINEES WHO WERE
RESIDENTS OF COOK COUNTY BUT INCARCERATED OUTSIDE OF COOK COUNTY.  /6/ 

THE THRESHOLD QUESTION PRESENTED IN MCDONALD WAS "HOW STRINGENT A
STANDARD TO USE IN ELEVATING THE CLASSIFICATIONS MADE (BY THE ILLINOIS
ABSENTEE BALLOT PROVISIONS) AND WHETHER THE DISTINCTIONS MUST BE
JUSTIFIED BY A COMPELLING STATE INTEREST . . . . "  394 U.S., AT 806. 
IN RESOLVING THIS QUESTION, THE COURT ANALYZED THE APPLICATION OF THE
MORE STRINGENT COMPELLING STATE INTEREST TEST WHEN EITHER A FUNDAMENTAL
RIGHT, SUCH AS THE RIGHT TO VOTE, WAS ALLEGEDLY INFRINGED, REYNOLDS V.
SIMS, 377 U.S. 533 (1964); HARPER V. VIRGINIA BOARD OF ELECTIONS, 383
U.S. 663 (1966); CARRINGTON V. RASH, 380 U.S. 89 (1965), OR WHEN THE
STATUTORY CLASSIFICATIONS WERE DRAWN ON THE BASIS OF SUSPECT CRITERIA,
SUCH AS WEALTH OR RACE, HARPER V. VIRGINIA BOARD OF ELECTIONS, SUPRA;
MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 192 (1964); DOUGLAS V. CALIFORNIA,
372 U.S. 353 (1963).  394 U.S., AT 807.  OUR ANALYSIS LED US TO
CONCLUDE THAT NEITHER SITUATION WAS PRESENTED BY THE ILLINOIS ABSENTEE
VOTING PROVISIONS.  WE HELD THAT "THE DISTINCTIONS MADE BY ILLINOIS'
ABSENTEE PROVISIONS ARE NOT DRAWN ON THE BASIS OF WEALTH OR RACE,"
IBID., AND, WITH RESPECT TO THE ALLEGED INFRINGEMENT OF APPELLANTS'
RIGHT TO VOTE, THAT: 

     "(THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE ILLINOIS

  STATUTORY SCHEME HAS AN IMPACT ON APPELLANTS' ABILITY TO EXERCISE

  THE FUNDAMENTAL RIGHT TO VOTE.  IT IS THUS NOT THE RIGHT TO VOTE

THAI IS AT STAKE HERE BUT A CLAIMED RIGHT TO RECEIVE ABSENTEE

  BALLOTS.  DESPITE APPELLANTS' CLAIM TO THE CONTRARY, THE ABSENTEE

  STATUTES, WHICH ARE DESIGNED TO MAKE VOTING MORE AVAILABLE TO

  SOME GROUPS WHO CANNOT EASILY GET TO THE POLLS, DO NOT THEMSELVES

  DENY APPELLANTS THE EXERCISE OF THE FRANCISE; NOR, INDEED, DOES

  ILLINOIS' ELECTION CODE SO OPERATE AS A WHOLE, FOR THE STATE'S

  STATUTES SPECIFICALLY DISENFRANCHISE ONLY THOSE WHO HAVE BEEN

  CONVICTED AND SENTENCED, AND NOT THOSE SIMILARLY SITUATED TO

  APPELLANTS.  (CITATION OMITTED.)  FACED AS WE ARE WITH A

  CONSTITUTIONAL QUESTION, WE CANNOT LIGHTLY ASSUME, WITH NOTHING

  IN THE RECORD TO SUPPORT SUCH AN ASSUMPTION, THAT ILLINOIS HAS IN

  FACT PRECLUDED APPELLANTS FROM VOTING."  ID., AT 807-808. 

FOR ALL THAT APPEARED, ILLINOIS MIGHT MAKE THE FRANCHISE AVAILABLE BY
OTHER MEANS: 

     "APPELLANTS AGREE THAT THE RECORD IS BARREN OF ANY INDICATION

  THAT THE STATE MIGHT NOT, FOR INSTANCE, POSSIBLY FURNISH THE

  JAILS WITH SPECIAL POLLING BOOTHS OR FACILITIES ON ELECTION DAY,

OR PROVIDE GUARDED TRANSPORTATION TO THE POLLS THEMSELVES FOR

  CERTAIN INMATES, OR ENTERTAIN MOTIONS FOR TEMPORARY REDUCTIONS IN

  BAIL TO ALLOW SOME INMATES TO GET TO THE POLLS ON THEIR OWN." 

  ID., AT 808 N. 6. 

THUS, "(SINCE THERE IS NOTHING IN THE RECORD TO SHOW THAT APPELLANTS
ARE IN FACT ABSOLUTELY PROHIBITED FROM VOTING BY THE STATE . . . " ID.,
AT 808 N. 7, WE CONCLUDED THAT THE ILLINOIS ABSENTEE BALLOT PROVISIONS
WERE TO BE TESTED BY THE "MORE TRADITIONAL STANDARDS FOR EVALUATING . .
. EQUAL PROTECTION CLAIMS," ID., AT 808, AND THAT UNDER THOSE STANDARDS
THE PROVISIONS COULD NOT BE SAID TO BE ARBITRARY OR UNREASONABLE,
PARTICULARLY SINCE "THERE IS NOTHING TO SHOW THAT A JUDICIALLY
INCAPACITATED, PRETRIAL DETAINEE IS ABSOLUTELY PROHIBITED FROM
EXERCISING THE FRANCHISE."  ID., AT 809. 

PETITIONERS' CONSTITUTIONAL CHALLENGES TO THE PENNSYLVANIA SCHEME
ARE IN SHARP CONTRAST.  PETITIONERS ALLEGE /7/  THAT, UNLIKE THE
APPELLANTS IN MCDONALD, THE PENNSYLVANIA STATUTORY SCHEME ABSOLUTELY
PROHIBITS THEM FROM VOTING, BOTH BECAUSE A SPECIFIC PROVISION
AFFIRMATIVELY EXCLUDES "PERSONS CONFINED IN A PENAL INSTITUTION" FROM
VOTING BY ABSENTEE BALLOT, PA. STAT. ANN., TIT. 25 SEC.
2602(2)(12)(SUPP.  1972-1973), AND BECAUSE REQUESTS BY MEMBERS OF
PETITIONERS' CLASS TO REGISTER AND TO VOTE EITHER BY ABSENTEE BALLOT,
OR BY PERSONAL OR PROXY APPEARANCE AT POLLING PLACES OUTSIDE THE
PRISON, OR AT POLLING BOOTHS AND REGISTRATION FACILITIES SET UP AT THE
PRISONS, OR GENERALLY BY ANY MEANS SATISFACTORY TO THE ELECTION
OFFICIALS, HAD BEEN DENIED.  THUS, PETITIONERS' COMPLAINT ALLEGES A
SITUATION THAT MCDONALD ITSELF SUGGESTED MIGHT MAKE A DIFFERENT CASE. 

THIS IS NOT TO SAY, OF COURSE, THAT PETITIONERS ARE AS A MATTER OF
LAW ENTITLED TO THE RELIEF SOUGHT.  WE NEITHER DECIDE NOR INTIMATE ANY
VIEW UPON THE MERITS.  /8/  IT SUFFICES THAT WE HOLD THAT MCDONALD DOES
NOT "FORECLOSE THE SUBJECT" OF PETITIONERS' CHALLENGE TO THE
PENNSYLVANIA STATUTORY SCHEME.  THE SIGNIFICANT DIFFERENCES BETWEEN
THAT SCHEME AND THE ILLINOIS SCHEME LEAVE AMPLE "ROOM FOR THE INFERENCE
THAT THE QUESTIONS SOUGHT TO BE RAISED (BY PETITIONERS) CAN BE THE
SUBJECT OF CONTROVERSY."  SEE SUPRA, AT 518, 519.     WE THEREFORE
CONCLUDE THAT THIS CASE MUST BE "HEARD AND DETERMINED BY A DISTRICT
COURT OF THREE JUDGES . . . . "  28 U.S.C. 2281.  THE JUDGMENT OF THE
COURT OF APPEALS IS THEREFORE REVERSED AND THE CASE IS REMANDED WITH
DIRECTION TO ENTER AN APPROPRIATE ORDER PURSUANT TO THAT SECTION FOR
THE CONVENING OF A THREE-JUDGE COURT TO HEAR AND DETERMINE THE MERITS
OF PETITIONERS' CONSTITUTIONAL CLAIMS, SEE KENNEDY V. MENDOZA-MARTINEZ,
372 U.S. 144, 153 (1963); IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN,
370 U.S. 713 (1962); BORDEN CO. V. LIDDY, 309 F.2D 871, 876 (CA8 1962),
CERT. DENIED, 372 U.S. 953 (1963); RISS & CO. V. HOCH, 99 F.2D 553, 555
(CA10 1936); SEE ALSO C. WRIGHT, THE LAW OF FEDERAL COURTS 190-191 (2D
ED. 1970), OR, IF DEEMED APPROPRIATE, TO ABSTAIN FROM SUCH
DETERMINATION PENDING STATE COURT PROCEEDINGS.  SEE LAKE CARRIERS'
ASSN. V. MACMULLAN, 406 U.S. 498, 509-513 (1972). 

              IT IS SO ORDERED. 

/1/  TITLE 28 U.S.C. 2281 PROVIDES: 

"AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE
ENFORCEMENT, OPERATION OR EXECUTION OF ANY STATE STATUTE BY RESTRAINING
THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION
OF SUCH STATUTE OR OF AN ORDER MADE BY AN ADMINISTRATIVE BOARD OR
COMMISSION ACTING UNDER STATES STATUTES, SHALL NOT BE GRANTED BY ANY
DISTRICT COURT OR JUDGE THEREOF UPON THE GROUND OF THE
UNCONSTITUTIONALITY OF SUCH STATUTE UNLESS THE APPLICATION THEREFOR IS
HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES UNDER SECTION
2284 OF THIS TITLE." 

/2/  PA. STAT. ANN., TIT. 25, SEC. 623-1 ET SEQ. (1963 AND SUPP.
1972-1973); SEC. 2602(W)(12)(SUPP.  1972-1973).  SEVERAL ELECTIONS,
INCLUDING THE 1972 PRESIDENTIAL ELECTION, HAVE BEEN HELD SINCE THIS
ACTION WAS FILED, BUT THIS DOES NOT RENDER THE CASE MOOT.  SEE MOORE V.
OGILVIE, 394 U.S. 814 (1969).  SIMILARLY, THE CASE IS NOT RENDERED MOOT
BECAUSE SOME OF THE NAMED PETITIONERS HAVE LOST THEIR STATUS AS CLASS
MEMBERS BY BEING RELEASED ON BAIL, DISCHARGED, ACQUITTED, OR
CONVICTED.  SEE MCDONALD V. BOARD OF ELECTION COMM'RS, 394 U.S. 802,
803 N. 1 (1969); LEE V. WASHINGTON, 390 U.S. 333 (1968), AFF'G 263
F.SUPP.  327 (MD ALA. 1966). 

/3/  THE UNPUBLISHED TRANSCRIPT OF THE ORAL OPINION OF THE SINGLE
JUDGE READS IN PERTINENT PART AS FOLLOWS: 

"IT HAS BEEN STATED THAT NO FEDERAL COURT HAS JURISDICTION TO
PRONOUNCE ANY STATUTE, EITHER OF THE STATE OR OF THE UNITED STATES VOID
BECAUSE IRRECONCILABLE WITH THE CONSTITUTION EXCEPT AS IT IS CALLED
UPON TO ADJUDGE THE LEGAL RIGHTS OF LITIGANTS IN ACTUAL CONTROVERSIES. 

"NOW, IN THE INSTANT CASE THE ATTORNEY GENERAL, AS THE CHIEF LEGAL
OFFICER OF THE COMMONWEALTH, OBVIOUSLY REPRESENTS, AS COUNSEL HAVE
STATED IN THEIR ARGUMENTS THIS MORNING, THE 'PRINCIPA;' DEFENDANT OR
DEFENDANTS.  THE POSITION TAKEN BY THE REMAINING DEFENDANTS SEEMS TO BE
THE RESULT OF THE FACT THAT THE ATTORNEY GENERAL HAS NOT, IN ACCORDANCE
WITH HIS PAST PRACTICE, RENDERED AN OPINION TOGETHER WITH SUGGESTED
PROCEDURES, PLANS, ETC., COVERING THE SUBJECT MATTER OF THE OPINION. 

"IT IS, THEREFORE, OUR CONCLUSION THAT IN THE POSTURE OF THIS CASE
AS IT PRESENTLY EXISTS . . . THERE IS NO CONTROVERSY IN THE SENSE IN
WHICH THAT TERM IS USED BY THE COURTS, AND WE FIND OURSELVES COMPELLED
TO, THEREFORE, DISMISS THE COMPLAINT.  IT IS SO ORDERED."  APP. 85. 

/4/  THUS, THIS IS NOT A SITUATION IN WHICH A STATE CONFESSES ERROR
AND REPRESENTS THAT THE ERROR WILL BE CORRECTED WITHOUT NEED FOR
FURTHER COURT ACTION.  SEE, E.G., TITMUS V. TINSLEY, 370 U.S. 964
(1962); MCKISSICK V. DURHAM CITY BOARD OF EDUCATION, 176 F.SUPP.  3
(MDNC 1959); JEFFERS V. WHITLEY, 197 F.SUPP.  84 (MDNC 1961); KELLEY V.
BOARD OF EDUCATION, 139 F.SUPP.  578 (MD TENN. 1956). 

/5/  WE ALSO READ RESPONDENTS' BRIEF AS REJECTING THE VIEW OF THE
SINGLE JUDGE THAT THE MUNICIPAL OFFICIALS MUST DEFER TO THE
COMMONWEALTH OFFICIALS' CONCESSION PENDING THE ISSUANCE OF A FORMAL
OPINION OF THE ATTORNEY GENERAL ON THE CONSTITUTIONALITY OF THE
STATUTES. 

INSOFAR AS THE SINGLE JUDGE MAY HAVE RESTED HIS FINDING OF THE
ABSENCE OF A CASE OR CONTROVERSY ON THE ALLEGED DIFFICULTY OF
FORMULATING A REMEDY, HE ALSO ERRED.  SEE LOUISIANA V. UNITED STATES,
380 U.S. 145, 154 (1965); BROWN V. BOARD OF EDUCATION, 349 U.S. 294,
300 (1955). 

/6/  THE ILLINOIS ABSENTEE VOTING STATUTE, ILL. REV. STAT., C. 46,
SECS. 19-1 TO 19-3 (1971), MADE ABSENTEE VOTING AVAILABLE TO FOUR
CLASSES OF PERSONS:  (1) THOSE WHO WERE ABSENT FROM THEIR COUNTY OF
RESIDENCE FOR ANY REASON; (2) THOSE WHO WERE "PHYSICALLY
INCAPACITATED"; (3) THOSE WHOSE OBSERVANCE OF A RELIGIOUS HOLIDAY
PREVENTED ATTENDANCE AT THE POLLS; AND (4) THOSE WHO SERVED AS POLL
WATCHERS IN PRECINCTS OTHER THAN THEIR OWN ON ELECTION DAY.  SEE
MCDONALD V. BOARD OF ELECTION COMM'RS, SUPRA, AT 803-804. 

/7/  "THE EXISTENCE OF A SUBSTANTIAL QUESTION OF CONSTITUTIONALITY
MUST BE DETERMINED BY THE ALLEGATIONS OF THE BILL OF COMPLAINT."  EX
PARTE PORESKY, 290 U.S. 30, 32 (1933).  IN THE PRESENT PROCEDURAL
POSTURE OF PETITIONERS' CASE, THE ALLEGATIONS OF THEIR COMPLAINT MUST
BE DEEMED TO BE TRUE.  BODDIE V. CONNECTICUT, 401 U.S. 371, 373 (1971);
GOMILLION V. LIGHTFOOT, 364 U.S. 339, 341 (1960).  IN ADDITION TO THE
ALLEGATIONS THAT THEY ARE ABSOLUTELY PROHIBITED FROM VOTING,
PETITIONERS ALLEGE THAT THE PENNSYLVANIA STATUTE CREATES
CLASSIFICATIONS BASED ON WEALTH AND RACE, THAT THE DENIAL OF THE RIGHT
TO VOTE IS AN IMPERMISSIBLE CONSEQUENCE OF PRETRIAL DETENTION IN
VIOLATION OF DUE PROCESS OF LAW, AND THAT THE PENNSYLVANIA STATUTE'S
SPECIFIC EXCLUSION OF PRETRIAL DETAINEES FROM THE DEFINITION OF A
"QUALIFIED ABSENTEE VOTER" IS UNCONSTITUTIONAL EVEN UNDER THE LESS
STRINGENT RATIONSL RELATIONSHIP TEST APPLIED IN MCDONALD. 

/8/  THE PER CURIAM OPINION OF THE COURT OF APPEALS STATES:  "WE
HAVE CAREFULLY CONSIDERED EACH OF THE CONTENTIONS RAISED BY THE
(PETITIONERS) AND FIND THEM TO BE WITHOUT MERIT."  452 F.2D 39, 41.  IN
VIEW OF THE RESULT WE REACH, THE COURT OF APPEALS WAS WITHOUT
JURISDICITON TO RENDER THIS HOLDING INSOFAR AS IT IMPLIES AN
ADJUDICATION OF THE MERITS OF PETITIONERS' CONSTITUTIONAL CONTENTIONS. 
STRATTON V. ST. LOUIS SOUTHWESTERN R. CO., 282 U.S. 10 (1930).  C.
WRIGHT, THE LAW OF FEDERAL COURTS 193 (2D ED. 1970). 

ANN S. TORREGROSSA ARGUED THE CAUSE FOR PETITIONERS PRO HAC VICE. 
WITH HER ON THE BRIEFS WAS ELLIOT B. PLATT. 

PETER W. BROWN, DEPUTY ATTORNEY GENERAL, ARGUED THE CAUSE FOR
RESPONDENTS COMMONWEALTH OF PENNSYLVANIA ET AL. WITH HIM ON THE BRIEF
WERE J. SHANE CREAMER, ATTORNEY GENERAL, AND THOMAS J. ORAVETZ AND
EDWARD J. WEINTRAUB, DEPUTY ATTORNEYS GENERAL.  JOHN MATTIONI ARGUED
THE CAUSE AND FILED A BRIEF FOR MUNICIPAL RESPONDENTS. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JACK GREENBERG
AND STANLEY A. BASS FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,
INC., ET AL., AND BY SAMUEL RABINOVE, MICHAEL VON MOSCHZISKER, WILBUR
BOURNE RUTHRAUFF, A. HARRY LEVITAN, AND CAROLYN TEMIN FOR THE AMERICAN
JEWISH COMMITTEE ET AL.
..END :





















HAM V. SOUTH CAROLINA, 409 U.S. 524 


       HAM V. SOUTH CAROLINA

        CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA

        NO. 71-5139.  ARGUED NOVEMBER 6, 1972-- DECIDED JANUARY 17,

           1973 


PETITIONER, A CIVIL RIGHTS WORKER, CLAIMS THAT THE TRIAL RESULTING IN
HIS DRUG CONVICTION (WHICH WAS AFFIRMED BY THE SOUTH CAROLINA SUPREME
COURT) WAS NOT FAIR BECAUSE OF THE TRIAL COURT'S REFUSAL TO EXAMINE
JURORS ON VOIR DIRE AS TO POSSIBLE PREJUDICE ARISING FROM THE FACT THAT
PETITIONER IS A NEGRO AND THAT HE WEARS A BEARD.  HELD:  THE TRIAL
COURT'S REFUSAL TO MAKE ANY INQUIRY OF THE JURORS AS TO RACIAL BIAS
AFTER PETITIONER'S TIMELY REQUEST THEREFORE DENIED PETITIONER A FAIR
TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  ITS REFUSAL TO INQUIRE AS TO PARTICULAR BIAS AGAINST
BEARDS, AFTER IT HAD MAKD INQUIRIES AS TO BIAS IN GENERAL, WAS NOT
CONSTITUTIONAL ERROR.  PP. 526-529. 

256 S.C. 1, 180 S.E.2D 628, REVERSED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BRENNAN, STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED. 
DOUGLAS, POST, P. 529, AND MARSHALL, JJ., POST, P. 503, FILED OPINIONS
CONCURRING IN PART AND DISSENTING IN PART. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED IN THE SOUTH CAROLINA TRIAL COURT OF THE
POSSESSION OF MARIHUANA IN VIOLATION OF STATE LAW.  /1/ HE WAS
SENTENCED TO 18 MONTHS' CONFINEMENT, AND ON APPEAL HIS CONVICTION WAS
AFFIRMED BY A DIVIDED SOUTH CAROLINA SUPREME COURT.  256 S.C. 1, 180
S.E. 2D 628 (1971).  WE GRANTED CERTIORARI LIMITED TO THE QUESTION OF
WHETHER THE TRIAL JUDGE'S REFUSAL TO EXAMINE JURORS ON VIOR DIRE AS TO
POSSIBLE PREJUDICE AGAINST PETITIONER VIOLATED THE LATTER'S FEDERAL
CONSTITUTIONAL RIGHTS.  404 U.S. 1057 (1972). 

PETITIONER IS A YOUNG, BEARDED NEGRO WHO HAS LIVED MOST OF HIS LIFE
IN FLORENCE COUNTY, SOUTH CAROLINA.  HE APPEARS TO HAVE BEEN WELL KNOWN
LOCALLY FOR HIS WORK IN SUCH CIVIL RIGHTS ACTIVITIES AS THE SOUTHERN
CHRISTIAN LEADERSHIP CONFERENCE AND THE BI-RACIAL COMMITTEE OF THE CITY
OF FLORENCE.  HE HAS NEVER PREVIOUSLY BEEN CONVICTED OF A CRIME.  HIS
BASIC DEFENSE AT THE TRIAL WAS THAT LAW ENFORCEMENT OFFICERS WERE "OUT
TO GET HIM" BECAUSE OF HIS CIVIL RIGHTS ACTIVITIES, AND THAT HE HAD
BEEN FRAMED ON THE DRUG CHARGE. 

PRIOR TO THE TRIAL JUDGE'S VOIR DIRE EXAMINATION OF PROSPECTIVE
JURORS, PETITIONER'S COUNSEL REQUESTED THE JUDGE TO ASK JURORS FOUR
QUESTIONS RELATING TO POSSIBLE PREJUDICE AGAINST PETITIONER.  /2/  THE
FIRST TWO QUESTIONS SOUGHT TO ELICIT ANY POSSIBLE RACIAL PREJUDICE
AGAINST NEGROES; THE THIRD QUESTION RELATED TO POSSIBLE PREJUDICE
AGAINST BEARDS; AND THE FOURTH DEALT WITH PRETRIAL PUBLICITY RELATING
TO THE DRUG PROBLEM.  THE TRIAL JUDGE, WHILE PUTTING TO THE PROSPECTIVE
JURORS THREE GENERAL QUESTIONS AS TO BIAS, PREJUDICE, OR PARTIALITY
THAT ARE SPECIFIED IN THE SOUTH CAROLINA STATUTES, /3/  DECLINED TO ASK
ANY OF THE FOUR QUESTIONS POSED BY PETITIONER. 

THE DISSENTING JUSTICES IN THE SUPREME COURT OF SOUTH CAROLINA
THOUGHT THAT THIS COURT'S DECISION IN ALDRIDGE V. UNITED STATES, 283
U.S. 308 (1931), WAS BINDING ON THE STATE.  THERE A NEGRO WHO WAS BEING
TRIED FOR THE MURDER OF A WHITE POLICEMAN REQUESTED THAT PROSPECTIVE
JURORS BE ASKED WHETHER THEY ENTERTAINED ANY RACIAL PREJUDICE.  THIS
COURT REVERSED THE JUDGMENT OF CONVICTION BECAUSE OF THE TRIAL JUDGE'S
REFUSAL TO MAKE SUCH AN INQUIRY.  MR. CHIEF JUSTICE HUGHES, WRITING FOR
THE COURT, STATED THAT THE "ESSENTIAL DEMANDS OF FAIRNESS" REQUIRED THE
TRIAL JUDGE UNDER THE CIRCUMSTANCES OF THAT CASE TO INTERROGATE THE
VENIREMEN WITH RESPECT TO RACIAL PREJUDICE UPON THE REQUEST OF COUNSEL
FOR A NEGRO CRIMINAL DEFENDANT.  ID., AT 310. 

THE COURT'S OPINION RELIED UPON A NUMBER OF STATE COURT HOLDINGS
THROUGHOUT THE COUNTRY TO THE SAME EFFECT, BUT IT WAS NOT EXPRESSLY
GROUNDED UPON ANY CONSTITUTIONAL REQUIREMENT.  SINCE ONE OF THE
PURPOSES OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT IS TO
INSURE THESE "ESSENTIAL DEMANDS OF FAIRNESS," E.G., LISENBA V.
CALIFORNIA, 314 U.S. 219, 236 (1941), AND SINCE A PRINCIPAL PURPOSE OF
THE ADOPTION OF THE FOURTEENTH AMENDMENT WAS TO PROHIBIT THE STATES
FROM INVIDIOUSLY DISCRIMINATING ON THE BASIS OF RACE, SLAUGHERHOUSE
CASES, 16 WALL.  36, 81 (1873), WE THINK THAT THE FOURTEENTH AMENDMENT
REQUIRED THE JUDGE IN THIS CASE TO INTERROGATE THE JURORS UPON THE
SUBJECT OF RACIAL PREJUDICE.  SOUTH CAROLINA LAW PERMITS CHALLENGES FOR
CAUSE, AND AUTHORIZES THE TRIAL JUDGE TO CONDUCT VOIR DIRE EXAMINATION
OF POTENTIAL JURORS.  THE STATE HAVING CREATED THIS STATUTORY FRAMEWORK
FOR THE SELECTION OF JURIES, THE ESSENTIAL FAIRNESS REQUIRED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES THAT UNDER THE
FACTS SHOWN BY THIS RECORD THE PETITIONER BE PERMITTED TO HAVE THE
JURORS INTERROGATED ON THE ISSUE OF RACIAL BIAS.  CF. GROPPI V.
WISCONSIN, 400 U.S. 505, 508 (1971); BELL V. BURSON, 402 U.S. 535, 541
(1971). 

WE AGREE WITH THE DISSENTING JUSTICES OF THE SUPREME COURT OF SOUTH
CAROLINA THAT THE TRIAL JUDGE WAS NOT REQUIRED TO PUT THE QUESTION IN
ANY PARTICULAR FORM, OR TO ASK ANY PARTICULAR NUMBER OF QUESTIONS ON
THE SUBJECT, SIMPLY BECAUSE REQUESTED TO DO SO BY PETITIONER.  THE
COURT IN ALDRIDGE WAS AT PAINS TO POINT OUT, IN A CONTEXT WHERE ITS
AUTHORITY WITHIN THE FEDERAL SYSTEM OF COURTS ALLOWS A GOOD DEAL CLOSER
SUPERVISION THAN DOES THE FOURTEENTH AMENDMENT, THAT THE TRIAL COURT
"HAD A BROAD DISCRETION AS TO THE QUESTIONS TO BE ASKED," 283 U.S., AT
310.  THE DISCRETION AS TO FORM AND NUMBER OF QUESTIONS PERMITTED BY
THE DUE PROCESS CLUASE OF THE FOURTEENTH AMENDMENT IS AT LEAST AS
BROAD.  IN THIS CONTEXT, EITHER OF THE BRIEF, GENERAL QUESTIONS URGED
BY THE PETITIONER WOULD APPEAR SUFFICIENT TO FOCUS THE ATTENTION OF
PROSPECTIVE JURORS ON ANY RACIAL PREJUDICE THEY MIGHT ENTERTAIN. 

THE THIRD OF PETITIONER'S PROPOSED QUESTIONS WAS ADDRESSED TO THE
FACT THAT HE WORE A BEARD.  WHILE WE CANNOT SAY THAT PREJUDICE AGAINST
PEOPLE WITH BEARDS MIGHT NOT HAVE BEEN HARBORED BY ONE OR MORE OF THE
POTENTIAL JURORS IN THIS CASE, THIS IS THE BEGINNING AND NOT THE END OF
THE INQUIRY AS TO WHETHER THE FOURTEENTH AMENDMENT REQUIRED THE TRAIL
JUDGE TO INTERROGATE THE PROSPECTIVE JURORS ABOUT SUCH POSSIBLE
PREJUDICE.  GIVEN THE TRADITIONALLY BROAD DISCRETION ACCORDED THE TRIAL
JUDGE IN CONDUCTING VOIR DIRE, ALDRIDGE V. UNITED STATES, SUPRA, AND
OUR INABILITY TO CONSTITUTIONALLY DISTINGUISH POSSIBLE PREJUDICE
AGAINST BEARDS FROM A HOST OF OTHER POSSIBLE SIMILAR PREJUDICES, WE DO
NOT BELIEVE THE PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN
THE TRIAL JUDGE REFUSED TO PUT THIS QUESTION.  THE INQUIRY AS TO RACIAL
PREJUDICE DERIVES ITS CONSTITUTIONAL STATURE FROM THE FIRMLY
ESTABLISHED PRECEDENT OF ALDRIDGE AND THE NUMEROUS STATE CASES UPON
WHICH IT RELIED, AND FROM A PRINCIPAL PURPOSE AS WELL AS FROM THE
LANGUAGE OF THOSE WHO ADOPTED THE FOURTEENTH AMENDMENT.  THE TRIAL
JUDGE'S REFUSAL TO INQUIRE AS TO PARTICULAR BIAS AGAINST BEARDS, AFTER
HIS INQUIRIES AS TO BIAS IN GENERAL, DOES NOT REACH THE LEVEL OF A
CONSTITUTIONAL VIOLATION. 

PETITIONER'S FINAL QUESTION RELATED TO ALLEGEDLY PREJUDICIAL
PRETRIAL PUBLICITY.  BUT THE RECORD BEFORE US CONTAINS NEITHER THE
NEWSPAPER ARTICLES NOR ANY DESCRIPTION OF THE TELEVISION PROGRAM IN
QUESTION.  BECAUSE OF THIS LACK OF MATERIAL IN THE RECORD
SUBSTANTIATING ANY PRETRIAL PUBLICITY PREJUDICIAL TO THIS PETITIONER,
WE HAVE NO OCCASION TO DETERMINE THE MERITS OF HIS REQUEST TO HAVE THIS
QUESTION POSED ON VOIR DIRE.  /4/ 

BECAUSE OF THE TRIAL COURT'S REFUSAL TO MAKE ANY INQUIRY AS TO
RACIAL BIAS OF THE PROSPECTIVE JURORS AFTER PETITIONER'S TIMELY REQUEST
THEREFOR, THE JUDGMENT OF THE SUPREME COURT OF SOUTH CAROLINA IS

              REVERSED. 

/1/  S.C. CODE SEC. 32-1506 (1962). 

/2/  THE FOUR QUESTIONS SOUGHT TO BE ASKED ARE THE FOLLOWING: 

"1.  WOULD YOU FAIRLY TRY THIS CASE ON THE BASIS OF THE EVIDENCE AND
DISREGARDING DEFENDANT'S RACE? 

"2.  YOU HAVE NO PREJUDICE AGAINST NEGROES?  AGAINST BLACK PEOPLE? 
YOU WOULD NOT BE INFLUENCED BY THE USE OF THE TERM 'BLACK'? 

"3.  WOULD YOU DISREGARD THE FACT THAT THIS DEFENDANT WEARS A BEARD
IN DECIDING THIS CASE? 

"4.  DID YOU WATCH THE TELEVISION SHOW ABOUT THE LOCAL DRUG PROBLEM
A FEW DAYS AGO WHEN A LOCAL POLICEMAN APPEARED FOR A LONG TIME?  HAVE
YOU HEARD ABOUT THAT SHOW?  HAVE YOU READ OR HEARD ABOUT RECENT
NEWSPAPER ARTICLES TO THE EFFECT THAT THE LOCAL DRUG PROBLEM IS BAD? 
WOULD YOU TRY THIS CASE SOLELY ON THE BASIS OF THE EVIDENCE PRESENTED
IN THIS COURTROOM?  WOULD YOU BE INFLUENCED BY THE CIRCUMSTANCES THAT
THE PROSECUTION'S WITNESS, A POLICE OFFICER, HAS PUBLICLY SPOKEN ON TV
ABOUT DRUGS?" 

/3/ S.C. CODE SEC. 38-202 (1962).  THE THREE QUESTIONS ASKED OF ALL
PROSPECTIVE JURORS IN THIS CASE WERE, IN SUBSTANCE, THE FOLLOWING: 

"1.  HAVE YOU FORMED OR EXPRESSED ANY OPINION AS TO THE GUILT OR
INNOCENCE OF THE DEFENDANT, GENE HAM? 

"2.  ARE YOU CONSCIOUS OF ANY BIAS OR PREJUDICE FOR OR AGAINST HIM? 

"3.  CAN YOU GIVE THE STATE AND THE DEFENDANT A FAIR AND IMPARTIAL
TRIAL?" 

/4/  THE RECORD INDICATES THAT THERE WAS A BRIEF COLLOQUY BETWEEN
PETITIONER'S COUNSEL AND THE TRIAL JUDGE, IN WHICH THE FORMER
APPARENTLY OFFERED NEWSPAPER ACCOUNTS AND AN EDITORIAL IN SUPPORT OF
HIS REQUEST THAT THE QUESTION BE PROPOUNDED; THE JUDGE RESPONDED THAT
HE DID NOT CONSIDER THE ITEMS SUBMITTED PREJUDICIAL.  THE SUPREME COURT
OF SOUTH CAROLINA, DISCUSSING PREJUDICIAL PUBLICITY IN THE CONTEXT OF
PETITIONER'S CLAIM THAT HE WAS ENTITLED TO A CHANGE OF VENUE, STATED
THAT "(THE TWO NEWSPAPER CLIPPINGS AND ONE EDITORIAL CONCERNING DRUG
ABUSE DID NOT NAME THE DEFENDANT OR REFER IN ANY WAY TO HIS TRIAL." 

MR. JUSTICE DOUGLAS, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN THAT PORTION OF THE MAJORITY'S OPINION THAT HOLDS THAT
THE TRIAL JUDGE WAS CONSTITUTIONALLY COMPELLED TO INQUIRE INTO THE
POSSIBILITY OF RACIAL PREJUDICE ON VOIR DIRE.  I THINK, HOWEVER, THAT
IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL JUDGE TO PRECLUDE THE
DEFENDANT FROM AN INQUIRY BY WHICH PROSPECTIVE JURORS' PREJUDICE TO
HAIR GROWTH COULD HAVE BEEN EXPLORED. 

IT IS UNQUESTIONED THAT A DEFENDANT HAS THE CONSTITUIONAL RIGHT TO A
TRIAL BY A NEUTRAL AND IMPARTIAL JURY.  CRIMINAL CONVICTIONS HAVE BEEN
REVERSED WHEN THE LIMITATIONS ON VOIR DIRE HAVE UNREASONABLY INFRINGED
THE EXERCISE OF THIS RIGHT.  ALDRIDGE V. UNITED STATES, 283 U.S. 308. 
SUCH REVERSALS HAVE NOT BEEN LIMITED TO INCIDENTS WHERE THE DEFENDANT
WAS PRECLUDED FROM INQUIRING INTO POSSIBLE RACIAL PREJUDICE.  IN BOTH
MORFORD V. UNITED STATES, 339 U.S. 258, AND DENNIS V. UNITED STATES,
339 U.S. 162, DEFENDANTS WERE HELD TO HAVE THE RIGHT TO INQUIRE INTO
POSSIBLE PREJUDICES CONCERNING THE DEFENDANTS' ALLEGED TIES WITH THE
COMMUNIST PARTY.  IN ALDRIDGE V. UNITED STATES, SUPRA, AT 313, THIS
COURT MADE IT CLEAR THAT VOIR DIRE AIMED AT DISCLOSING "PREJUDICES OF A
SERIOUS CHARACTER" MUST BE ALLOWED. 

PREJUDICES INVOLVING HAIR GROWTH ARE UNQUESTIONABLY OF A "SERIOUS
CHARACTER."  NOTHING IS MORE INDICATIVE OF THE IMPORTANCE CURRENTLY
BEING ATTACHED TO HAIR GROWTH BY THE GENERAL POPULACE THAN THE BARRAGE
OF CASES REACHING THE COURTS EVIDENCING THE ATTEMPT BY ONE SEGMENT OF
SOCIETY OFFICIALLY TO CONTROL THE PLUMAGE OF ANOTHER.  ON THE ISSUE OF
A STUDENT'S RIGHT TO WEAR LONG HAIR ALONE THERE ARE WELL OVER 50
REPORTED CASES, OLFF V. EAST SIDE UNION HIGH SCHOOL, 404 U.S. 1042.  IN
ADDITBION, THE ISSUE OF PLUMAGE HAS SURFACED IN THE EMPLOYMENT
DISCRIMINATION CONTEXT, ROBERTS V. GENERAL MILLS, INC., 337 F.SUPP. 
1055 (NC OHIO); CONARD V. GOOLSBY, 350 F.SUPP.  713 (ND MISS.), AS WELL
AS THE MILITARY AREA, FRIEDMAN V. FROEHLKE, 5 S.S.L.R. 3179 (MASS). 

THE PREJUDICES INVOKED BY THE MERE SIGHT OF NON-CONVENTIONAL HAIR
GROWTH ARE DEEPLY FELT.  HAIR GROWTH IS SYMBOLIC TO MANY OF REBELLION
AGAINST TRADITIONAL SOCIETY AND DISAPPROVAL OF THE WAY THE CURRENT
POWER STRUCTURE HANDLES SOCIAL PROBLEMS.  TAKEN AS AN AFFIRMATIVE
DECLARATION OF AN INDIVIDUAL'S COMMITMENT TO A CHANGE IN SOCIAL VALUES,
NONCONVENTIONAL HAIR GROWTH MAY BECOME A VERY REAL PERSONAL THREAT TO
THOSE WHO SUPPORT THE STATUS QUO.  FOR THOSE PEOPLE, NONCONVENTIONAL
HAIR GROWTH SYMVOLIZES AN UNDESIRABLE LIFESTYLE CHARACTERIZED BY
UNRELIABILITY, DISHONESTY, LACK OF MORAL VALUES, COMMUNAL ("COMMUNIST")
TENDENCIES, AND THE ASSUMTION OF DRUG USE.  IF THE DEFENDANT,
ESPECIALLY ONE BEING PROSECUTED FOR THE ILLEGAL USE OF DRUGS, IS NOT
ALLOWED EVEN TO MAKE THE MOST MINIMAL INQUIRY TO EXPOSE SUCH
PREJUDICES, CAN IT BE EXPECTED THAT HE WILL RECEIVE A FAIR TRIAL? 

SINCE HAIR GROWTH IS AN OUTWARD MANIFESTATION BY WHICH MANY PEOPEL
DETERMINE WHETHER TO APPLY DEEP-ROOTED PREJUDICES TO AN INDIVIDUAL, TO
DENY A DEFENDANT THE RIGHT TO EXAMINE THIS ASPECT OF A PROSPECTIVE
JUROR'S PERSONALITY IS TO DENY HIM HIS MOST EFFECTIVE MEANS OF VOIR
DIRE EXAMINATION. 

MR. JUSTICE MARSHALL, CONCURRING IN PART AND DISSENTING IN PART. 

I, TOO, CONCUR IN THAT PORTION OF THE MAJORITY'S OPINION WHICH HOLDS
THAT THE TRIAL JUDGE WAS CONSTITUTIONALLY COMPELLED TO INQUIRE INTO THE
POSSIBILITY OF RACIAL PREJUDICE ON VOIR DIRE.  I ALSO AGREE THAT, ON
THIS RECORD, WE CANNOT SAY THAT THE JUDGE WAS REQUIRED TO ASK QUESTIONS
ABOUT PRETRIAL PUBLICITY.  I CANNOT AGREE, HOWEVER, THAT THE JUDGE
ACTED PROPERLY IN TOTALLY FORECLOSING OTHER REASONABLE AND RELEVANT
AVENUES OF INQUIRY AS TO POSSIBLE PREJUDICE. 

LONG BEFORE THE SIXTH AMENDMENT WAS MADE APPLICABLE TO THE STATES
THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, SEE DUNCAN
V. LOUISIANA, 391 U.S. 145 (19 68), THIS COURT HELD THAT THE RIGHT TO
AN "IMPARTIAL" JURY WAS BASIC TO OUR SYSTEM OF JUSTICE. 

     "IN ESSENCE, THE RIGHT TO JURY TRIAL GUARANTEES TO THE

  CRIMINALLY ACCUSED A FAIR TRIAL BY A PANEL OF IMPARTIAL,

  'INDIFFERENT' JURORS.  THE FAILURE TO ACCORD AN ACCUSED A FAIR

  HEARING VIOLATES EVEN THE MINIMAL STANDARDS OF DUE PROCESS . . .

. IN THE LANGUAGE OF LORD COKE, A JUROR MUST BE AS 'INDIFFERENT

  AS HE STANDS UNSWORNE.'  CO. LITT.  155B.  HIS VERDICT MUST BE

  BASED UPON THE EVIDENCE DEVELOPED AT THE TRIAL.  CF. THOMPSON V.

  CITY OF LOUISVILLE, 362 U.S. 199.  THIS IS TRUE, REGARDLESS OF

  THE HEINOUSNESS OF THE CRIME CHARGED, THE APPARENT GUILT OF THE

  OFFENDER OR THE STATION IN LIFE WHICH HE OCCUPIES.  IT WAS SO

  WRITTEN INTO OUR LAW AS EARLY AS 1807 BY CHIEF JUSTICE MARSHALL

  IN 1 BURR'S TRIAL 416 (1807).  'THE THEORY OF THE LAW IS THAT A

  JUROR WHO HAS FORMED AN OPINION CANNOT BE IMPARTIAL.'  REYNOLDS

  V. UNITED STATES, 98 U.S. 145, 155."  REYNOLDS V. UNITED STATES,

  98 U.S. 145, 155."  IRVIN V. DOWD, 366 U.S. 717, 722 (1961). 

SEE ALSO TURNER V. LOUISIANA, 379 U.S. 466, 471-473 (1965); GLASSER V.
UNITED STATES, 315 U.S. 60, 84-86 (1942).     WE HAVE NEVER SUGGESTED
THAT THIS RIGHT TO IMPARTIALITY AND FAIRNESS PROTECTS AGAINST ONLY
CERTAIN CLASSES OF PREJUDICE OR EXTENDS TO ONLY CERTAIN GROUPS IN THE
POPULATION.  IT MAKES LITTLE DIFFERENCE TO A CRIMINAL DEFENDANT WHETHER
THE JURY HAS PREJUDGED HIM BECAUSE OF THE COLOR OF HIS SKIN OR BECAUSE
OF THE LENGTH OF HIS HAIR.  IN EITHER EVENT, HE HAS BEEN DEPRIVED OF
THE RIGHT TO PRESENT HIS CASE TO NEUTRAL AND DETACHED OBSERVERS CAPABLE
OF RENDERING A FAIR AND IMPARTIAL VERDICT.  IT IS UNSURPRISING, THEN,
THAT THIS COURT HAS INVALIDATED DECISIONS REACHED BY JURIES WITH A WIDE
VARIETY OF DIFFERENT PREJUDICES.  SEE, E.G., WITHERSPOON V. ILLINOIS,
391 U.S. 510 (1968); IRVIN V. DOWD, SUPRA; MORFORD V. UNITED STATES,
339 U.S. 258 (1950).     MOREOVER, THE COURT HAS ALSO HELD THAT THE
RIGHT TO AN IMPARTIAL JURY CARRIES WITH IT THE CONCOMITANT RIGHT TO AKE
REASONABLE STEPS DESIGNED TO INSURE THAT THE JURY IS IMPARTIAL.  A
VARIETY OF TECHNIQUEST IS AVAILABLE TO SERVE THIS END, SEE GROPPI V.
WISCONSIN, 400 U.S. 505, 509-511 (1971); SHEPPARD V. MAXWELL, 384 U.S.
333, 357-363 (1966), BUT PERHAPS THE MOST IMPORTANT OF THESE IS THE
JURY CHALLENGE.  SEE, E.G., JOHNSON V. LOUISIANA, 406 U.S. 357, 379
(1972) (OPINION OF POWELL, J.); SWAIN V. ALABAMA, 380 U.S. 202, 209-222
(1965).  INDEED, THE FIRST MR. JUSTICE HARLAN, SPEAKING FOR A UNANIMOUS
COURT, THOUGHT THAT THE RIGHT TO CHALLENGE WAS "ONE OF THE MOST
IMPORTANT OF THE RIGHTS SECURED TO THE ACCUSED" AND THAT "(ANY SYSTEM
FOR THE EMPANELLING OF A JURY THAT (PREVENTS) OR EMBARRASSES THE FULL,
UNRESTRICTED EXERCISE BY THE ACCUSED OF THAT RIGHT, MUST BE
CONDEMNED."  POINTER V. UNINTED STATES, 151 U.S. 396, 408 (1894).  SEE
ALSO LEWIS V. UNITED STATES, 146 U.S. 370, 376 (1892). 

OF COURSE, THE RIGHT TO CHALLENGE HAS LITTLE MEANING IF IT IS
UNACCOMPANIED BY THE RIGHT TO ASK RELEVANT QUESTIONS ON VOIR DIRE UPON
WHICH THE CHALLENGE FOR CAUSE CAN BE PREDICATED.  SEE SWAIN V. ALABAMA,
SUPRA, AT 221.  IT IS FOR THIS REASON THAT THE COURT HAS HELD THAT
"(PRESERVATION OF THE OPPORTUNITY TO PROVE ACTUAL BIAS IS A GUARANTEE
OF A DEFENDANT'S RIGHT TO AN IMPARTIAL JURY."  DENNIS V. UNITED STATES,
339 U.S. 162, 171-172 (1950), AND THAT THE COURT HAS REVERSED CRIMINAL
CONVICTIONS WHEN THE RIGHT TO QUERY ON VOIR DIRE HAS BEEN UNREASONABLY
INFRINGED.  SEE, E.G., ALDRIDGE V. UNITED STATES, 283 U.S. 308 (1931). 
CONTRARY TO THE MAJORITY'S SUGGESTION, THESE REVERSALS HAVE NOT BEEN
CONFINED TO CASES WHERE THE DEFENDANT WAS PREVENTED FROM ASKING ABOUT
RACIAL PREJUDICE.  SEE, E.G., MORFORD V. UNITED STATES, SUPRA. CF.
DENNIS V. UNITED STATES, SUPRA.  /1/ 

I DO NOT MEAN TO SUGGEST THAT A DEFENDANT MUST BE PERMITTED TO
PROPOUND ANY QUESTION OR THAT LIMITLESS TIME MUST BE DEVOTED TO
PRELIMINARY VOIR DIRE.  ALTHOUGH THE DEFENDANT'S INTEREST IN A JURY
FREE OF PREJUDICE IS STRONG, THERE ARE COUNTERVAILING STATE INTERESTS
IN THE EXPEDTIOUS CONDUCT OF CRIMINAL TRIALS AND THE AVOIDANCE OF JURY
INTIMIDATION.  THESE INTERESTS BULK LARGER AS THE POSSIBILITY OF
UNCOVERING PREJUDICE BECOMES MORE ATTENUATED.  THE TRIAL JUDGE HAS
BROAD DISCRETION TO REFUSE TO ASK QUESTIONS THAT ARE IRRELEVANT OR
VEXATIOUS.  /2/  THUS, WHERE THE CLAIMED PREJUDICE IS OF A NOVEL
CHARACTER, THE JUDGE MIGHT REQUIRE A PRELIMINARY SHOWING OF RELEVANCE
OR OF POSSIBLE PREJUDICE BEFORE ALLOWING THE QUESTIONS. 

BUT BROAD AS THE JUDGE'S DISCRETION IS IN THESE MATTERS, I THINK IT
CLEAR THAT IT WAS ABUSED IN THIS CASE.  THE DEFENSE ATTORNEY WISHED TO
ASK NO MORE THAN FOUR QUESTIONS, WHICH WOULD HAVE REQUIRED A SCANT 15
ADDITIONAL MINUTES OF THE COURT'S TIME.  THE INQUIRIES, DIRECTED INTER
ALIA TO POSSIBLE PREJUDICE AGAINST PEOPLE WITH BEARDS, WERE OBVIOUSLY
RELEVANT, SINCE THE DEFENDANT WAS IN FACT BEARDED.  MOREOVER, THE JUDGE
AFFORDED PETITIONER NO OPPORTUNITY TO SHOW THAT THERE WERE A
SIGNIFICANT NUMBER OF POTENTIAL JURORS WHO MIGHT BE PREJUDICED AGAINST
PEOPLE WITH BEARDS.  AT MINIMUM, I THINK SUCH AN OPPORTUNITY SHOULD
HAVE BEEN PROVIDED.  I CANNOT BELIEVE THAT IN THESE CIRCUMSTANCES AN
ABSOLUTE BAN ON QUESTIONS DESIGNED TO UNCOVER SUCH PREJUDICE REPRESENTS
A PROPER BALANCE BETWEEN THE COMPETING DEMANDS OF FAIRNESS AND
EXPEDITION. 

IT MAY BE THAT PERMITTING SLIGHTLY MORE EXTENSIVE VOIR DIRE
EXAMINATION WILL PUT AN ADDITIONAL BURDEN ON THE ADMINISTRATION OF
JUSTICE.  BUT, AS MR. CHIEF JUSTICE HUGHES ARGUED 40 YEARS AGO, "IT
WOULD BE FAR MORE INJURIOUS TO PERMIT IT TO BE THOUGHT THAT PERSONS
ENTERTAINING A DISQUALIFYING PREJUDICE WERE ALLOWED TO SERVE AS JURORS
AND THAT INQUIRIES DESIGNED TO ELICIT THE FACT OF DISQUALIFICATION WERE
BARRED.  NO SURER WAY COULD BE DEVISED TO BRING THE PROCESSES OF
JUSTICE INTO DISREPUTE."  ALDRIDGE V. UNITED STATES, 283 U.S., AT 315. 

I WOULD THEREFORE HOLD THAT THE DEFENDANT IN THIS CASE, AND SUBJECT
TO THE LIMITATIONS SET OUT ABOVE, HAD A CONSTITUTIONALLY PROTECTED
INTEREST IN HAVING THE JUDGE PROPOUND THE ADDITIONAL QUESTION, IN SOME
FORM, TO THE JURY. 

/1/  INDEED, IT WAS NOT SO CONFINED IN ALDRIDGE ITSELF, UPON WHICH
THE MAJORITY HEAVILY RELIES.  ALDRIDGE POINTED OUT THAT "(THE RIGHT TO
EXAMINE JURORS ON THE VOIR DIRE AS TO THE EXISTENCE OF A DISQUALIFYING
STATE OF MIND, HAS BEEN UPHELD WITH RESPECT TO OTHER RACES THAN THE
BLACK RACE, AND IN RELATION TO RELIGIOUS AND OTHER PREJUDICES OF A
SERIOUS CHARACTER."  283 U.S. 308, 313 (1931). 

/2/  I ALSO AGREE WITH THE MAJORITY THAT THE JUDGE MAY PROPERLY
DECLINE TO ASK THE QUESTION IN ANY PARTICULAR FORM OR ASK ANY
PARTICULAR NUMBER OF QUESTIONS ON A SUBJECT. 

JONATHAN SHAPIRO ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE JACK GREENBERG, JAMES M. NABRIT III, AND ANTHONY G.
AMSTERDAM. 

TIMOTHY G. QUINN, ASSISTANT ATTORNEY GENERAL OF SOUTH CAROLINA,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS DANIEL R.
MCLEOD, ATTORNEY GENERAL. 
..END :





















GOMEZ V. PEREZ, 409 U.S. 535 


       GOMEZ V. PEREZ

        APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, FOURTH

           SUPREME JUDICIAL DISTRICT

        NO. 71-575.  ARGUED DECEMBER 6, 1972-- DECIDED JANUARY 17,

           1973 


TEXAS LAW DENYING RIGHT OF PATERNAL SUPPORT TO ILLEGITIMATE CHILDREN
WHILE GRANTING IT TO LEGITIMATE CHILDREN VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  CF. LEVY V. LOUISIANA, 392 U.S.
68; WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164. 

466 S.W. 2D 41, REVERSED AND REMANDED. 

PER CURIAM. 

THE ISSUE PRESENTED BY THIS APPEAL IS WHETHER THE LAWS OF TEXAS MAY
CONSTITUTIONALLY GRANT LEGITIMATE CHILDREN A JUDICIALLY ENFORCEABLE
RIGHT TO SUPPORT FROM THEIR NATURAL FATHERS AND AT THE SAME TIME DENY
THAT RIGHT TO ILLEGITIMATE CHILDREN. 

IN 1969, APPELLANT FILED A PETITION IN TEXAS DISTRICT COURT SEEKING
SUPPORT FROM APPELLEE ON BEHALF OF HER MINOR CHILD.  AFTER A HEARING,
THE STATE TRIAL JUDGE FOUND THAT APPELLEE IS THE "BIOLOGICAL FATHER" OF
THE CHILD, AND THAT THE CHILD "NEEDS THE SUPPORT AND MAINTENANCE OF HER
FATHER," BUT CONCLUDED THAT BECAUSE THE CHILD WAS ILLEGITIMATE "THERE
IS NO LEGAL OBLIGATION TO SUPPORT THE CHILD AND THE PLAINTIFF TAKE
NOTHING."  THE COURT OF CIVIL APPEALS AFFIRMED THIS RULING OVER THE
OBJECTION THAT THIS ILLEGITIMATE CHILD WAS BEING DENIED EQUAL
PROTECTION OF LAW.  466 S.W.2D 41.  THE TEXAS SUPREME COURT REFUSED
APPLICATION FOR A WRIT OF ERROR, FINDING NO "REVERSIBLE ERROR."  WE
NOTED PROBABLE JURISDICTION.  408 U.S. 920. 

IN TEXAS, BOTH AT COMMON LAW AND UNDER THE STATUTES OF THE STATE,
THE NATURAL FATHER HAS A CONTINUING AND PRIMARY DUTY TO SUPPORT HIS
LEGITIMATE CHILDREN.  SEE LANE V. PHILLIPS, 69 TEX. 240, 243, 6 S.W.
610, 611 (1887); TEX. FAM.  CODE SEC. 4.02 (1970) (HUSBAND'S DUTY). 
/1/  THAT DUTY EXTENDS EVEN BEYOND DISSOLUTION OF THE MARRIAGE, TEX.
REV. CIV. STAT., ART. 4639A (SUPP. 1972-1973); HOOTEN V. HOOTEN, 15
S.W.2D 141 (TEX. CT. CIV. APP. 1929), AND IS ENFORCEABLE ON THE CHILD'S
BEHALF IN CIVIL PROCEEDINGS AND, FURTHER, IS THE SUBJECT OF CRIMINAL
SANCTIONS.  TEX. PENAL CODE SEC. 602.  THE DUTY TO SUPPORT EXISTS
DESPITE THE FACT THAT THE FATHER MAY NOT HAVE CUSTODY OF THE CHILD. 
HOOTEN V. HOOTEN, SUPRA.  THE COURT OF CIVIL APPEALS HAS HELD IN THIS
CASE THAT NOWHERE IN THIS ELABORATE STATUTORY SCHEME DOES THE STATE
RECOGNIZE ANY ENFORCEABLE DUTY ON THE PART OF THE BIOLOGICAL FATHER TO
SUPPORT HIS ILLEGITIMATE CHILDREN AND THAT, ABSENT A STATUTORY DUTY TO
SUPPORT, THE CONTROLLING LAW IS THE TEXAS COMMON-LAW RULE THAT
ILLEGITIMATE CHILDREN, UNLIKE LEGITIMATE CHILDREN, HAVE NO LEGAL RIGHT
TO SUPPORT FROM THEIR FATHERS.  SEE ALSO HOME OF THE HOLY INFANCY V.
KASKA, 397 S.W.2D 208 (TEX. 1965); LANE V. PHILLIPS, SUPRA, AT 243, 6
S.W., AT 611; BJORGO V. BJORGO, 391 S.W.2D 528 (TEX. CT. CIV. APP.
1965).  IT IS ALSO TRUE THAT FATHERS MAY SET UP ILLEGITIMACY AS A
DEFENSE TO PROSECUTIONS FOR CRIMINAL NONSUPPORT OF THEIR CHILDREN.  SEE
CURTIN V. STATE, 155 TEX.CR.R. 625, 238 S.W.2D 187 (1950); BEAVER V.
STATE, 96 TEX.CR.R. 179, 256 S.W. 929 (1923). 

IN THIS CONTEXT, APPELLANT'S CLAIM ON BEHALF OF HER DAUGHTER THAT
THE CHILD HAS BEEN DENIED EQUAL PROTECTION OF THE LAW IS UNMISTAKABLY
PRESENTED.  INDEED, AT ARGUMENT HERE, THE ATTORNEY FOR THE STATE OF
TEXAS, APPEARING AS AMICUS CURIAE, CONCEDED THAT BUT FOR THE FACT THAT
THIS CHILD IS ILLEGITIMATE SHE WOULD BE ENTITLED TO SUPPORT FROM
APPELLEE UNDER THE LAWS OF TEXAS.  /2/ 

WE HAVE HELD THAT UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT A STATE MAY NOT CREATE A RIGHT OF ACTION IN FAVOR
OF CHILDREN FOR THE WRONGFUL DEATH OF A PARENT AND EXCLUDE ILLEGITIMATE
CHILDREN FROM THE BENEFIT OF SUCH A RIGHT.  LEVY V. LOUISIANA, 391 U.S.
68 (1968).  SIMILARLY, WE HAVE HELD THAT ILLEGITIMATE CHILDREN MAY NOT
BE EXCLUDED FROM SHARING EQUALLY WITH OTHER CHILDREN IN THE RECOVERY OF
WORKMEN'S COMPENSATION BENEFITS FOR THE DEATH OF THEIR PARENT.  WEBER
V. AETNA CASUALTY & SURETY CO., 406 U.S. 164 1972).  /3/  UNDER THESE
DECISIONS, A STATE MAY NOT INVIDIOUSLY DISCRIMINATE AGAINST
ILLEGITIMATE CHILDREN BY DENYING THEM SUBSTANTIAL BENEFITS ACCORDED
CHILDREN GENERALLY.  WE THEREFORE HOLD THAT ONCE A STATE POSITS A
JUDICIALLY ENFORCEABLE RIGHT ON BEHALF OF CHILDREN TO NEEDED SUPPORT
FROM THEIR NATURAL FATHERS THERE IS NO CONSTITUTIONALLY SUFFICIENT
JUSTIFICATION FOR DENYING SUCH AN ESSENTIAL RIGHT TO A CHILD SIMPLY
BECAUSE ITS NATURAL FATHER HAS NOT MARRIED ITS MOTHER.  FOR A STATE TO
DO SO IS "ILLOGICAL AND UNJUST."  ID., AT 175.  WE RECOGNIZE THE
LURKING PROBLEMS WITH RESPECT TO PROOF OF PATERNITY.  THOSE PROBLEMS
ARE NOT TO BE LIGHTLY BRUSHED ASIDE, BUT NEITHER CAN THEY BE MADE INTO
AN IMPENETRABLE BARRIER THAT WORKS TO SHIELD OTHERWISE INVIDIOUS
DISCRIMINATION.  STANLEY V. ILLINOIS, 405 U.S. 645, 656-657 (1972);
CARRINGTON V. RASH, 380 U.S. 89 (1965). 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

         IT IS SO ORDERED. 

/1/  SECTION 4.02 BECAME EFFECTIVE AFTER THE COMMENCEMENT OF
APPELLANT'S SUIT, BUT THE PROVISION IS IDENTICAL (EXCEPT FOR
PUNCTUATION) TO ITS PREDECESSOR, TEX. REV. CIV. STAT., HUSBAND AND
WIFE, ART. 4614, IN 1 TEX. LAWS, C. 309, P. 736 (60TH LEGISLATURE, REG.
SESS. 1967).  SECTION 4.02 WAS ENACTED AS PART OF A CODIFICATION OF
TEXAS FAMILY LAW. 

/2/  TR. OF ORAL ARG. 24.  THERE WAS SOME QUESTION AT ARGUMENT
WHETHER THE STATUTORY SCHEME RELATING TO PATERNAL SUPPORT OF CHILDREN
WAS PROPERLY DRAWN INTO QUESTION IN THE STATE COURTS.  IN THE
CIRCUMSTANCES OF THIS CASE, WE NEED NOT RESOLVE THE QUESTION.  FIRST,
THE STATE OF TEXAS ASSERTS NO PREJUDICE FROM APPELLANT'S APPARENT
FAILURE TO EXPLICITLY DRAW ATTENTION TO THE INDIVICUAL STATUTES THAT
MAKE UP THE SO-CALLED TEXAS RULE REGARDING SUPPORT OF LEGITIMATE AND
ILLEGITIMATE CHILDREN.  ON THE CONTRARY, THE STATE ASSERTED HERE THAT
IT WAS PREPARED TO MEET APPELLANT'S CONSTITUTIONAL ATTACK ON ITS
STATUTES ON THE MERITS.  TR. OF ORAL ARG. 28.  SECOND, UNDER OUR CASES,
"THE UNRESTRICTED NOTATION OF PROBABLE JURISDICTION OF THE APPEAL IS TO
BE UNDERSTOOD AS A GRANT OF THE WRIT" OF CERTIORARI ON "NONAPPEALABLE"
ISSUES PRESENTED IN THE CASE.  MISHKIN V. NEW YORK, 383 U.S. 502, 512
(1966).  APPELLANT'S FEDERAL CLAIM, WHICH WAS REJECTED IN THE STATE
COURTS, THAT HER CHILD WAS BEING DENIED EQUAL PROTECTION OF LAWS IS,
THEREFORE, PROPERLY BEFORE US IN ANY EVENT. 

/3/  SEE ALSO DAVIS V. RICHARDSON, 342 F.SUPP.  588 (CONN.), AFF'D,
POST, P. 1069 (1972); GRIFFIN V. RICHARDSON, 346 F.SUPP.  1226 (MD.),
AFF'D, POST, P. 1069 (1972). 

MR. JUSTICE STEWART, WHITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

THIS CASE CAME HERE AS AN APPEAL, ON THE REPRESENTATION THAT THE
TEXAS COURTS HAD SUSTAINED THE CONSTITUTIONALITY OF SEC. 4.02 OF THE
TEXAS FAMILY CODE AND ARTICLES 602 AND 602-A OF THE TEXAS PENAL CODE,
OVER A CHALLENGE TO THOSE STATUTES UNDER THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  WE NOTED PROBABLE JURISDICTION, 408 U.S.
920, TO CONSIDER WHETHER THE ALLEGED DISCRIMINATION BETWEEN LEGITIMATE
AND ILLEGITIMATE CHILDREN, IN TERMS OF THE SUPPORT OBLIGATIONS OF THEIR
BIOLOGICAL FATHERS, DENIED EQUAL PROTECTION TO ILLEGITIMATE CHILDREN
UNDER THE PRINCIPLES OF WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S.
164; GLONA V. AMERICAN GUARANTEE & LIABILITY INSURANCE CO., 391 U.S.
73; AND LEVY V. LOUISIANA, 391 U.S. 68. 

UPON THE SUBMISSION OF BRIEFS AND ORAL ARGUMENT, IF BECAME CLEAR
THAT NEITHER STATUTE HAD BEEN THE ACTUAL SUBJECT OF LITIGATION IN THE
COURTS OF TEXAS.  HENCE, THIS IS NOT PROPERLY AN APPEAL UNDER 28 U.S.C.
1257(2).  I WOULE, THEREFORE, DISMISS THE APPEAL FOR WANT OF
JURISDICTION, AND TREAT "THE PAPERS WHEREON THE APPEAL WAS TAKEN" AS A
PETITION FOR WRIT OF CERTIORARI.  28 U.S.C. 2103. 

THE PARTIES WERE NOT PREPARED TO SUBMIT THIS CASE AS ONE CHALLENGING
THE COMMON-LAW TREATMENT OF ILLEGITIMATES IN TEXAS, AND FAILED TO
PROVIDE THIS COURT WITH A SUFFICIENT UNDERSTANDING OF TEXAS LAW WITH
RESPECT TO SUCH MATTERS AS CUSTODIAL VERSUS NONCUSTODIAL SUPPORT
OBLIGATIONS, LEGITIMATION, COMMON-LAW MARRIAGE, AND THE EFFECT OF A
TEXAS STATUTE, SEC. 4.02 OF THE FAMILY CODE, WHICH BECAME LAW AFTER
THIS LITIGATION HAD BEGUN.  WITH THE ISSUES SO VAGUELY DRAWN AND THE
ALLEGED DISCRIMINATIONS SO IMPRECISE, I WOULD DISMISS THE WRIT OF
CERTIORARI AS IMPROVIDENTLY GRANTED. 

STANLEY DALTON WRIGHT ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON
THE BRIEF WERE MELVIN N. EICHELBAUM AND HARRY B. ADAMS III. 

JOSEPH JAWORSKI, BY INVITATION OF THE COURT, 408 U.S. 942, ARGUED
THE CAUSE AND FILED A BRIEF AS AMICUS CURIAE IN SUPPORT OF THE JUDGMENT
BELOW. 

NORMAN DORSEN, MELVIN L. WULF, AND SANFORD JAY ROSEN FILED A BRIEF
FOR THE AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING
REVERSAL. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL, NOLA WHITE, FIRST ASSISTANT
ATTORNEY GENERAL, ALFRED WALKER, EXECUTIVE ASSISTANT ATTORNEY GENERAL,
AND J. C. DAVIS AND PAT BAILEY, ASSISTANT ATTORNEYS GENERAL, FILED A
BRIEF FOR THE STATE OF TEXAS AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :












INDIANA EMPLOYMENT DIVISION V. BURNEY, 409 U.S. 540 


       INDIANA EMPLOYMENT SECURITY DIVISION ET AL. V. BURNEY

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF INDIANA

NO. 71-119.  ARGUED DECMEBER 7, 1972-- DECIDED JANUARY 17,

          1973 


THERE BEING NO NAMED REPRESENTATIVE OF THE CLASS EXCEPT APPELLEE,
SETTLEMENT OF APPELLEE'S CLAIM FOR BENEFITS IN THIS CLASS ACTION
CHALLENGING INDIANA'S SYSTEM OF ADMINISTERING UNEMPLOYMENT INSURANCE
RAISES A QUESTION AS TO WHETHER THIS CASE HAD BECOME MOOT. 

347 F.SUPP.  218, VACATED AND REMANDED. 

PER CURIAM. 

WE NOTED PROBABLE JURISDICTION IN THIS CASE, 406 U.S.956, TO REVIEW
THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT, HOLDING THAT INDIANA'S
SYSTEM OF ADMINISTERING UNEMPLOYMENT INSURANCE WAS IN CONFLICT WITH
SEC. 303(A)(1) OF THE SOCIAL SECURITY ACT, 49 STAT. 626, AS AMENDED, 42
U.S.C. 503(A)(1).  /1/  BEFORE THE THREE-JUDGE COURT ENTERED ITS
INJUNCTION, INDIANA'S PRACTICE WAS TO DISCONTINUE UNEMPLOYMENT BENEFITS
UPON A DETERMINATION OF INELIGIBILITY, THAT DETERMINATION TAKING PLACE
WITHOUT THE BENEFIT OF A FULL HEARING FOR THE RESTWHILE BENEFICIARY. 

AFTER SEVERAL MONTHS OF EFFORT, HOWEVER, THE CLASS REPRESENTATIVE IN
THIS LITIGATION, MRS. BURNEY, SUCCEEDED IN OBTAINING A REVERSAL OF THE
INITIAL DETERMINATION OF INELIGIBILITY.  /2/  SHE HAS NOW RECEIVED FULL
RETROACTIVE COMPENSATION. 

THE FULL SETTLEMENT OF MRS. BURNEY'S FINANCIAL CLAIM RAISES THE
QUESTION WHETHER THERE CONTINUES TO BE A CASE OR CONTROVERSY IN THIS
LAWSUIT.  THOUGH THE APPELLEE PURPORTS TO REPRESENT A CLASS OF ALL
PRESENT AND FUTURE RECIPIENTS OF UNEMPLOYMENT INSURANCE, THERE ARE NO
NAMED REPRESENTATIVES OF THE CLASS EXCEPT MRS. BURNEY, WHO HAS BEEN
PAID.  CF. BAILEY V. PATTERSON, 369 U.S. 31, 32-33.  ACCORDINGLY, THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT TO
CONSIDER WHETHER IT HAS BECOME MOOT. 

              IT IS SO ORDERED. 

/1/  THE THREE-JUDGE COURT WAS CONVENED PURSUANT TO 28 U.S.C. 2281,
2284, TO CONSIDER THE PRAYER FOR AN INJUNCTION AGAINST ENFORCEMENT OF
THE INDIANA STATUTE, IND. ANN. STAT. SEC. 52-1542AE) (SUPP. 1970), ON
THE GROUNDS THAT IT VIOLATED THE APPELLEE'S RIGHT TO DUE PROCESS UNDER
THE FOURTEENTH AMENDMENT.  THE DISTRICT COURT DID NOT REACH THIS
ISSUE. 

/2/  THE DISTRICT COURT ENTERED A TEMPORARY RESTRAINING ORDER
AGAINST THE APPELLANTS ON MAY 7, 1971.  PRESUMABLY, THE APPELLEE'S
PAYMENTS WERE THEN RESTORED PENDING THE OUTCOME OF HER HEARING BEFORE A
REFEREE, WHICH TOOK PLACE ON JULY 1, 1971.  ON JULY 13, 1971, THE
REFEREE AFFIRMED THE DETERMINATION OF INELIGIBILITY.  MRS. BURNEY THEN
APPEALED TO THE DIVISION REVIEW BOARD.  AFTER THE JUDGMENT AND
INJUNCTION WERE ENTERED BY THE DISTRICT COURT, THE REVIEW BOARD
REVERSED THE REFEREE AND AWARDED PAYMENTS TO MRS. BURNEY.  THIS LATER
DETERMINATION WAS UNRELATED TO THE INJUNCTION. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

I CONSIDER THE REMAND ORDER BY THE COURT TO BE POINTLESS.  THE ONLY
ISSUE IN THIS CASE IS THE RIGHT OF A RECIPIENT OF UNEMPLOYMENT
INSURANCE BENEFITS TO A FULL EVIDENTIARY HEARING BEFORE THOSE BENEFITS
ARE TERMINATED AS THE RESULT OF AN ADMINISTRATIVE DETERMINATION OF
INELIGIBILITY.  THE COURT EVIDENTLY CONCLUDES THAT THIS ACTION MAY BE
MOOT AS TO MRS. BURNEY SINCE SHE HAS NOW RECEIVED A FULL EVIDENTIARY
HEARING AND SETTLEMENT OF HER CLAIM, AND AS TO THE AFFECTED CLASS SINCE
MRS. BURNEY IS ITS ONLY NAMED REPRESENTATIVE IN THIS ACTION.  I THINK
IT CLEAR ON THE RECORD BEFORE US, HOWEVER, THAT NOTHING HAS OCCURRED AT
EITHER THE ADMINISTRATIVE OR JUDICIAL LEVEL SINCE MRS. BURNEY ENTERED
THIS SUIT THAT WOULD SUFFICE TO MOOT HER CLAIM OR THAT OF THE CLASS. 

MRS. BURNEY'S BENEFITS WERE SUSPENDED BEGINNING THE WEEK OF MARCH
23, 1971.  ON APRIL 2, 1971, SOME THREE WEEKS BEFORE MRS. BURNEY SOUGHT
LEAVE TO INTERVENE IN THIS ACTION, /1/  SHE INVOKED THE EXISTING
INDIANA APPEAL PROCEDURE, SEE IND. STAT. ANN. SEC. 52-1542AE) (SUPP.
1970), NOW IND. STAT. ANN. SEC. 52-1542AE) (SUPP. 1972), AND REQUESTED
AN ADMINISTRATIVE HEARING.  SHE RECEIVED SUCH A HEARING ON JULY 1,
1971, WHILE THIS ACTION WAS STILL PENDING IN THE DISTRICT COURT. 
ALTHOUGH THE HEARING REFEREE AFFIRMED THE SUSPENSION ORDER, ON DECEMBER
6, 1971, THE DIVISION REVIEW BOARD REVERSED THE REFEREE AND HELD THAT
MRS. BURNEY'S BENEFITS HAD BEEN ERRONEOUSLY SUSPENDED.  MEANWHILE, ON
OCTOBER 27, 1971, THE DISTRICT COURT GRANTED SUMMARY JUDGMENT IN FAVOR
OF MRS. BURNEY AND THE AFFECTED CLASS. 

CERTAINLY THE FULL ADMINISTRATIVE HEARING THAT MRS. BURNEY RECEIVED
DURING THE PENDENCY OF THIS CASE IN THE DISTRICT COURT CANNOT BE
CONSIDERED TO BE AN INDICATION THAT INDIANA HAS VOLUNTARILY CHOSEN TO
PROVIDE HENCEFORTH THE PRE-TERMINATION HEARING THAT MRS. BURNEY CLAIMS
IS REQUIRED UNDER BOTH SEC. 303(A)(1) OF THE SOCIAL SECURITY ACT, 42
U.S.C. 503(A)(1), AND THE DUE PROCESS CLAUSE.  SO FAR AS APPEARS, THE
HEARING AFFORDED MRS. BURNEY WAS NOTHING MORE THAN THE POST-TERMINATION
HEARING FOR WHICH PROVISION IS ALREADY MADE IN INDIANA LAW.  /2/ 

NOR CAN I ACCEPT ANY SUGGESTION THAT MRS. BURNEY'S ATTACK UPON
APPELLANTS' FAILURE TO PROVIDE A PRE-TERMINATION HEARING MAY BE MOOT
MERELY BECAUSE SHE HAS RECEIVED A FULL POST-TERMINATION HEARING AND
SETTLEMENT OF HER CLAIM SINCE ENTERING THIS LITIGATION.  /3/  A
DETERMINATION OF MOOTNESS BASED ON THIS LINE OF REASONING WOULD
EFFECTIVELY BAR THE FULL AND FINAL LITIGATION OF WHETHER A PRE
TERMINATION HEARING IS LEGALLY REQUIRED, WHILE LEAVING INDIANA FREE TO
CONTINUE TO PROVIDE MRS. BURNEY AND OTHER BENEFICIARIES OF UNEMPLOYMENT
INSURANCE WITH ONLY POST-TERMINATION HEARINGS. 

IT IS, BY NOW, CLEAR THAT A CLAIM IS NOT MOOT IF IT IS "CAPABLE OF
REPETITION, YET EVADING REVIEW."  SOUTHERN PACIFIC TERMINAL CO. V. ICC,
219 U.S. 498, 515 (1911); SEE MOORE V. OGILVIE, 394 U.S. 814, 816
(1969).  IT IS ENTIRELY POSSIBLE THAT MRS. BURNEY WILL, IN THE FUTURE,
BECOME EMPLOYED AND THEN ONCE MORE BECOME UNEMPLOYED.  IF THIS ACTION
IS DEEMED TO BE MOOT AND THE EXISTING STATE PROCEDURE REMAINS INTACT,
SHE THEN MAY ENCOUNTER THE SAME PROBLEM OF SUSPENSION OF BENEFITS
WITHOUT A PRIOR HEARING THAT SHE HAS ENCOUNTERED IN THIS INSTANCE. 
AND, INEVITABLY, THE POST-TERMINATION ADMINISTRATIVE PROCESS WILL AGAIN
BE COMPLETED BEFORE FINAL LEGAL RELIEF MAY BE OBTAINED AS TO THE PRE
TERMINATION HEARING QUESTION.  INDEED, THIS SEQUENCE OF EVENTS MIGHT
REPEAT ITSELF ANY NUMBER OF TIMES FOR MRS. BURNEY IF THE MERE PROVISION
OF THE POST-TERMINATION HEARING AND SETTLEMENT OF HER PARTICULAR CLAIM
WERE CONSIDERED SUFFICIENT TO MOOT THE ISSUE WHETHER A PRE-TERMINATION
HEARING IS REQUIRED.  THE PRINCIPLE THAT A FEDERAL COURT WILL NOT PASS
UPON A MOOT CONTROVERSY DOES NOT REQUIRE US TO SET IN MOTION SUCH A
LITIGIOUS MERRY-GO-ROUND WHERE, AS HERE, THERE IS A SHORT-LIVED
CONTROVERSY OF A POTENTIALLY RECURRING CHARACTER. 

IT IS NO ANSWER THAT THERE ARE OTHER BENEFICIAREIS OF UNEMPLOYMENT
INSURANCE WHOSE BENEFITS MAY BE TERMINATED IN ADVANCE OF A FULL HEARING
AND WHO MIGHT THEREFORE INSTITUTE LTTIGATION CONCERNING THE TIMING
ISSUE.  SUCH LITIGATION CAN BE EXPECTED TO FARE NO BETTER, OR WORSE, IN
TERMS OF PROBLEMS OF MOOTNESS THAN THIS CASE.  AS WITH MRS. BURNEY'S
CLAIM, THE POST-TERMINATION ADMINISTRATIVE PROCESS WILL INVARIABLY BE
COMPLETED BEFORE A FINAL ADJUDICATION IS OBTAINED.  IN FACT, APPELLANTS
INDICATE THAT THE POST-TERMINATION HEARING PROCEDURE HAS BEEN SPEEDED
UP SIGNIFICANTLY SINCE MRS. BURNEY'S ADMINISTRATIVE APPEAL WAS
PROCESSED.  /4/ 

IT IS TRUE THAT THE DISTRICT COURT ENTERED AN INJUNCTION ORDERING
INDIANA TO PROVIDE PRE-TERMINATION HEARINGS, AND THAT INJUNCTION IS
CURRENTLY IN EFFECT SINCE NO STAY HAS BEEN ENTERED.  AS A RESULT, PRE
TERMINATION HEARINGS ARE PRESENTLY BEING PROVIDED IN INDIANA.  /5/  BUT
THIS CERTAINLY DOES NOT MOOT THE CASE, FOR IT IS WELL ESTABLISHED THAT
COMPLIANCE WITH A COURT ORDER PENDENTE LITE DOES NOT MOOT THE
UNDERLYING CONTROVERSY, SEE, E.G., BAKERY SALES DRIVERS LOCAL UNION NO.
33 V. WAGSHAL, 333 U.S. 437, 442 (1948); DAKOTA COUNTY V. GLIDDEN, 113
U.S. 222, 224 (1885).  A DETERMINATION OF MOOTNESS WOULD REQUIRE THAT
THE DECISION BELOW BE VACATED AND THE ACTION DISMISSED.  SEE, E.G., SEC
V. MEDICAL COMMITTEE FOR HUMAN RIGHTS, 404 U.S. 403, 407 (1972); UNITED
STATES V. W. T. GRANT CO., 345 U.S. 629, 632 (1953).  UNDER SUCH
CIRCUMSTANCES, APPELLANTS WOULD BE "FREE TO RETURN TO (THEIR) OLD
WAYS."  IBID.  FOR A CASE TO BE MOOT IT MUST BE "ABSOLUTELY CLEAR THAT
THE ALLEGEDLY WRONGFUL BEHAVIOR COULD NOT REASONABLY BE EXPECTED TO
RECUR."  UNITED STATES V. CONCENTRATED PHOSPHATE EXPORT ASSN., 393 U.S.
199, 203 (1968).  IN THIS CASE, APPELLANTS HAVE HARDLY PROVIDED SUCH
ASSURANCE-- AS IS EVIDENT FROM THE VERY FACT THAT THIS APPEAL WAS TAKEN
FROM THE ADVERSE DECISION BELOW. 

IN MY VIEW, THEN, THIS CASE REMAINS VIABLE AS TO BOTH MRS. BURNEY
AND THE AFFECTED CLASS.  ACCORDINGLY, I SEE NO NEED FOR THE REMAND
ORDERED BY THE COURT.  /6/  ON THE MERITS, I WOULD AFFIRM THE JUDGMENT
OF THE DISTRICT COURT IN LIGHT OF OUR DECISION IN GOLDBERG V. KELLY,
397 U.S. 254 (1970).  SEE TORRES V. NEW YORK DEPT. OF LABOR, 405 U.S.
949 (1972) (STATEMENT OF DOUGLAS, BRENNAN, AND MARSHALL, JJ.). 

/1/  THIS ACTION WAS ORIGINALLY BROUGHT TO DECLARE INVALID THE
INDIANA STATUTORY PROVISION THAT AN UNEMPLOYED INDIVIDUAL FOUND
INITIALLY TO BE ELIGIBLE BY THE DIVISION AUTHORITIES WOULD HAVE HIS
BENEFITS SUSPENDED UPON APPEAL BY THE EMPLOYER OF THE ELIGIBILITY
DETERMINATION.  THAT ISSUE WAS EFFECTIVELY RESOLVED AGAINST THE
DIVISION BY THIS COURT'S DECISION IN CALIFORNIA DEPT. OF HUMAN
RESOURCES DEVELOPMENT V. JAVA, 402 U.S. 121 (1971), WHICH WAS HANDED
DOWN WHILE THIS CASE WAS PENDING IN THE DISTRICT COURT, AND IT IS NOT
PRESENTED ON THIS APPEAL.  ON MAY 7, 1971, THE DISTRICT COURT ALLOWED
MRS. BURNEY TO INTERVENE IN THIS ACTION IN ORDER TO RAISE THE FURTHER
ISSUE WHETHER A PRE-TERMINATION HEARING IS NECESSARY WHERE THE DIVISION
SEEKS TO SUSPEND PAYMENT OF BENEFITS BECAUSE IT HAS DETERMINED THAT A
PERSON WHO WAS INITIALLY ELIGIBLE TO RECEIVE UNEMPLOYMENT BENEFITS HAS
SINCE BECOME INELIGIBLE. 

/2/  AT THE SAME TIME MRS. BURNEY SOUGHT TO INTERVENE, SHE REQUESTED
A TEMPORARY RESTRAINING ORDER REINSTATING HER BENEFITS.  ON MAY 7,
1971, THE DISTRICT COURT ISSUED SUCH AN ORDER DIRECTING THAT MRS.
BURNEY'S BENEFITS BE REINSTATED AND NOT BE AGAIN SUSPENDED "WITHOUT A
PRIOR, DUE PROCESS HEARING."  IN LIGHT OF THE CHRONOLOGY OF EVENTS IN
THIS CASE IT APPEARS THAT MRS. BURNEY RECEIVED ONLY THE REGULAR POST
TERMINATION HEARING FOR WHICH INDIANA LAW PROVIDES.  BUT EVEN IF THE
JULY 1 HEARING WAS THE PRODUCT OF THE TEMPORARY RESTRAINING ORDER, SUCH
COMPLIANCE WITH THE COURT ORDER WOULD NOT MOOT THIS CASE.  SEE, E.G.,
BAKERY SALES DRIVERS LOCAL UNION NO. 33 V. WAGSHAL.  333 U.S. 437, 442
(1948); DAKOTA COUNTY V. GLIDDEN, 113 U.S. 222, 224, (1885). 

/3/  IT PARTICULARLY BEARS NOTING THAT IN CALIFORNIA DEPT. OF HUMAN
HUMAN RESOURCES DEVELOPMENT V. JAVA, SUPRA, AT 123-124, WHICH INVOLVED
A RELATED PRE-TERMINATION HEARING CLAIM, SEE N. 1, SUPRA, THE COURT
NEVER EVEN SUGGESTED THAT THERE WAS ANY PROBLEM OF MOOTNESS, ALTHOUGH
BOTH APPELLEES HAD RECEIVED FULL POST-TERMINATION ADMINISTRATIVE
HEARINGS DURING THE PENDENCY OF THE LITIGATION. 

/4/  SEE REPLY BRIEF FOR APPELLANTS 8. 

/5/  SEE BRIEF FOR APPELLEE 6. 

/6/  I CAN SEE THE PURPOSE OF A REMAND TO A DISTRICT COURT FOR
CONSIDERATION OF POSSIBLE MOOTNESS WHERE THE COURT IDENTITFIES DISPUTED
FACTUAL ISSUES THE RESOLUTION OF WHICH AFFECTS THE CONTINUING VIABILITY
OF THE PARTICULAR CLAIM.  SEE, E.G., JOHNSON V. NEW YORK STATE
EDUCATION DEPT., ANTE, P. 75.  BUT HERE THE COURT FAILS TO IDENTIFY ANY
SUCH FACTUAL ISSUE.  INDEED, THERE DO NOT APPEAR TO BE ANY FACTUAL
ISSUES IN DISPUTE AS TO THE ADMINISTRATIVE DEVELOPMENTS SUBSEQUENT TO
MRS. BURNEY'S INTERVENTION IN THIS SUIT.  UNDER SUCH CIRCUMSTANCES,
THIS COURT IS AS COMPETENT AS A DISTRICT COURT TO RESOLVE INITIALLY THE
ISSUE OF MOOTNESS, AND IN THE PAST IT HAS PROCEEDED TO DO SO, SEE E.G.,
SEC V. MEDICAL COMMITTEE FOR HUMAN RIGHTS, 404 U.S. 403 (1972); UNITED
STATES V. CONCENTRATED PHOSPHATE EXPORT ASSN., 393 U.S. 199, 202-204
(1968). 

DARREL K. DIAMOND, DEPUTY ATTORNEY GENERAL OF INDIANA.  ARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WAS THEODORE L. SENDAK,
ATTORNEY GENERAL. 

IVAN E. BODENSTEINER ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
ON THE BRIEF WERE STEPHEN P. BERZON, STEFAN M. ROSENZWEIG, AND FRED H.
ALTSHULER. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL, ELIZABETH PALMER, ASSISTANT ATTORNEY
GENERAL, AND ASHER RUBIN, DEPUTY ATTORNEY GENERAL, FOR THE STATE OF
CALIFORNIA, AND BY HARRY T. ICE FOR COLLEGE UNIVERSITY CORP. ET AL. 

BRIEFS FOR AMICI CURIAE URGING AFFIRMANCE WERE FILED BY J. ALBERT
WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION
OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND BY DENNIS R.
YEAGER, E. RICHARD LARSON, HOWARD I. ROSENBERG, JAMES H. SECKINGER,
JOHN M. LEVY, MARTTIE LOUIS THOMPSON, JOSEPH A. MATERA, C. CHRISTOPHER
BROWN.  AND C. LYONEL JONES FOR NATIONAL EMPLOYMENT LAW PROJECT
..END :











ALMOTA FARMERS ELEVATOR & WHSE. CO. V. U.S., 409 U.S. 470 


       ALMOTA FARMERS ELEVATOR & WAREHOUSE CO. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 71-951.  ARGUED OCTOBER 18, 1972-- DECIDED JANUARY 16,

  1973 


BEFORE AND DURING THE LAST OF SEVERAL SUCCESSIVE LEASES, PETITIONER
MADE SUBSTANTIAL AND PERMANENT IMPROVEMENTS THAT HAD A USEFUL LIFE IN
EXCESS OF THE REMAINING LEASE TERM.  WITH 7 1/2 YEARS TO RUN ON THE
THEN-CURRENT LEASE TERM, THE UNITED STATES CONTRACTED TO ACQUIRE THE
UNDERLYING FEE AND BEGAN CONDEMNATION PROCEEDINGS FOR THE LEASEHOLD. 
THE COURT OF APPEALS REVERSED THE DISTRICT COURT'S RULING THAT JUST
COMPENSATION REQUIRED THAT THE IMPROVEMENTS BE VALUED IN PLACE OVER
THEIR USEFUL LIFE WITHOUT LIMITATION TO THE REMAINDER OF THE LEASE
TERM.  HELD:  IN A CONDEMNATION PROCEEDING, THE CONCEPT OF "JUST
COMPENSATION" IS MEASURED BY WHAT A WILLING BUYER WOULD HAVE PAID FOR
THE IMPROVEMENTS, TAKING INTO ACCOUNT THE POSSIBILITY THAT THE LEASE
MIGHT BE RENEWED AS WELL AS THAT IT MIGHT NOT.  PP. 473-478. 

450 F.2D 125, REVERSED AND DISTRICT COURT JUDGMENT REINSTATED. 

STEWART, J;, DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, MARSHALL, AND POWELL, JJ., JOINED.  POWELL, J., FILED A
CONCURRING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P. 479. 
REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH BURGER, C. J., AND
WHITE AND BLACKMUN, JJ., JOINED, POST, P. 480. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

SINCE 1919 THE PETITIONER, ALMOTA FARMERS ELEVATOR & WAREHOUSE CO.,
HAS CONDUCTED GRAIN ELEVATOR OPERATIONS ON LAND ADJACENT TO THE TRACKS
OF THE OREGON-WASHINGTON RAILROAD & NAVIGATION CO. IN THE STATE OF
WASHINGTON.  IT HAS OCCUPIED THE LAND UNDER A SERIES OF SUCCESSIVE
LEASES FROM THE RAILROAD.  IN 1967, THE GOVERNMENT INSTITUTED THIS
EMINENT DOMAIN PROCEEDING TO ACQUIRE THE PETITIONER'S PROPERTY INTEREST
BY CONDEMNATION.  AT THAT TIME THERE WERE EXTENSIVE BUILDINGS AND OTHER
IMPROVEMENTS THAT HAD BEEN ERECTED ON THE LAND BY THE PETITIONER, AND
THE THEN-CURRENT LEASE HAD 7 1/2 YEARS TO RUN. 

IN THE DISTRICT COURT THE GOVERNMENT CONTENDED THAT JUST
COMPENSATION FOR THE LEASEHOLD INTEREST, INCLUDING THE STRUCTURES,
SHOULD BE "THE FAIR MARKET VALUE OF THE LEGAL RIGHTS POSSESSED BY THE
DEFENDANT BY VIRTUE OF THE LEASE AS OF THE DATE OF TAKING," AND THAT NO
CONSIDERATION SHOULD BE GIVEN TO ANY ADDITIONAL VALUE BASED ON THE
EXPECTATION THAT THE LEASE MIGHT BE RENEWED.  THE PETITIONER URGED
THAT, RATHER THAN THIS TECHNICAL "LEGAL RIGHTS THEORY," JUST
COMPENSATION SHOULD BE MEASURED BY WHAT A WILLING BUYER WOULD PAY IN AN
OPEN MARKET FOR THE PETITIONER'S LEASEHOLD. 

AS A PRACTICAL MATTER, THE CONTROVERSY CENTERED UPON THE VALUATION
TO BE PLACED UPON THE STRUCTURES AND THEIR APPURTENANCES.  THE PARTIES
STIPULATED THAT THE GOVERNMENT HAD NO NEED FOR THESE IMPROVEMENTS AND
THAT THE PETITIONER HAD A RIGHT TO REMOVE THEM.  BUT THAT STIPULATION
AFFORDED THE PETITIONER ONLY WHAT SCANT SALVAGE VALUE THE BUILDINGS
MIGHT BRING.  THE GOVERNMENT OFFERED COMPENSATION FOR THE LOSS OF THE
USE AND OCCUPANCY OF THE BUILDINGS ONLY OVER THE REMAINING TERM OF THE
LEASE.  THE PETITIONER CONTENDED THAT THIS LIMITATION UPON COMPENSATION
FOR THE USE OF THE STRUCTURES WOULD FAIL TO AWARD WHAT A WILLING BUYER
WOULD HAVE PAID FOR THE LEASE WITH THE IMPROVEMENTS, SINCE SUCH A BUYER
WOULD EXPECT TO HAVE THE LEASE RENEWED AND TO CONTINUE TO USE THE
IMPROVEMENTS IN PLACE.  THE VALUE OF THE BUILDINGS, MACHINERY, AND
EQUIPMENT IN PLACE WOULD BE SUBSTANTIALLY GREATER THAN THEIR SALVAGE
VALUE AT THE END OF THE LEASE TERM, AND A PURCHASER IN AN OPEN MARKET
WOULD PAY FOR THE ANTICIPATED USE OF THE BUILDINGS AND FOR THE SAVINGS
HE WOULD REALIZE FROM NOT HAVING TO CONSTRUCT NEW IMPROVEMENTS
HIMSELF.  IN SUM, THE DISPUTE CONCERNED WHETHER ALMOTA WOULD HAVE TO BE
SATISFIED WITH ITS RIGHT TO REMOVE THE STRUCTURES WITH THEIR CONSEQUENT
SALVAGE VALUE OR WHETHER IT WAS ENTITLED TO AN AWARD REFLECTING THE
VALUE OF THE IMPROVEMENTS IN PLACE BEYOND THE LEASE TERM. 

IN A PRETRIAL RULING, THE DISTRICT COURT ACCEPTED THE PETITIONER'S
THEORY AND HELD THAT ALMOTA WAS TO BE COMPENSATED FOR THE FULL MARKET
VALUE OF ITS LEASEHOLD "AND BUILDING IMPROVEMENTS THEREON AS OF THE
DATE OF TAKING . . . , THE TOTAL VALUE OF SAID LEASEHOLD AND
IMPROVEMENTS . . . TO BE WHAT THE INTERESTS OF SAID COMPANY THEREIN
COULD HAVE BEEN THEN SOLD FOR UPON THE OPEN MARKET CONSIDERING ALL
ELEMENTS AND POSSIBILITIES WHATSOEVER FOUND TO THEN AFFECT THE MARKET
VALUE OF THOSE INTERESTS INCLUDING, BUT NOT EXCLUSIVE OF, THE
POSSIBILITIES OF RENEWAL OF THE LEASE AND OF THE LANDLORD REQUIRING THE
REMOVAL OF THE IMPROVEMENTS IN THE EVENT OF THERE BEING NO LEASE
RENEWAL."  THE COURT ACCORDINGLY RULED THAT THE PETITIONER WAS ENTITLED
TO THE FULL FAIR MARKET VALUE OF THE USE OF THE LAND AND OF THE
BUILDINGS IN PLACE AS THEY STOOD AT THE TIME OF THE TAKING, WITHOUT
LIMITATION OF SUCH USE TO THE REMAINDER OF THE TERM OF THE EXISTING
LEASE. 

ON APPEAL, THE COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED, 450
F.2D 125; IT ACCEPTED THE GOVERNMENT'S THEORY THAT A TENANT'S
EXPECTANCY IN A LEASE RENEWAL WAS NOT A COMPENSABLE LEGAL INTEREST AND
COULD NOT BE INCLUDED IN THE VALUATION OF STRUCTURES THAT THE TENANT
HAD BUILT ON THE PROPERTY.  IT REJECTED ANY AWARD FOR THE USE OF
IMPROVEMENTS BEYOND THE LEASE TERM AS "COMPENSATION FOR EXPECTATIONS
DISAPPOINTED BY THE EXERCISE OF THE SOVEREIGN POWER OF EMINENT DOMAIN,
EXPECTATIONS NOT BASED UPON ANY LEGALLY PROTECTED RIGHT, BUT BASED ONLY
. . . UPON 'A SPECULATION ON A CHANCE.'"  450 F.2D, AT 129.  THE COURT
EXPLICITLY REFUSED TO FOLLOW AN EN BANC DECISION OF THE COURT OF
APPEALS FOR THE SECOND CIRCUIT, RELIED UPON BY THE DISTRICT COURT,
WHICH HAD HELD THAT FOR CONDEMNATION PURPOSES IMPROVEMENTS MADE BY A
LESSEE ARE TO BE ASSESSED AT THEIR VALUE IN PLACE OVER THEIR USEFUL
LIFE WITHOUT REGARD TO THE TERM OF THE LEASE.  UNITED STATES V. CERTAIN
PROPERTY, BOROUGH OF MANHATTAN, 388 F.2D 596, 601. 

IN VIEW OF THIS CONFLICT IN THE CIRCUITS, WE GRANTED CERTIORARI, 405
U.S. 1039, TO DECIDE AN IMPORTANT QUESTION OF EMINENT DOMAIN LAW:
"WHETHER, UPON CONDEMNATION OF A LEASEHOLD, A LESSEE WITH NO RIGHT OF
RENEWAL IS ENTITLED TO RECEIVE AS COMPENSATION THE MARKET VALUE OF ITS
IMPROVEMENTS WITHOUT REGARD TO THE REMAINING TERM OF ITS LEASE, BECAUSE
OF THE EXPECTANCY THAT THE LEASE WOULD HAVE BEEN RENEWED."  /1/  WE
FIND THAT THE VIEW OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IS IN
ACCORD WITH ESTABLISHED PRINCIPLES OF JUST-COMPENSATION LAW UNDER THE
FIFTH AMENDMENT, AND THEREFORE REVERSE THE JUDGMENT BEFORE US AND
REINSTATE THE JUDGMENT OF THE DISTRICT COURT. 

THE FIFTH AMENDMENT PROVIDES THAT PRIVATE PROPERTY SHALL NOT BE
TAKEN FOR PUBLIC USE WITHOUT "JUST COMPENSATION."  "AND 'JUST
COMPENSATION' MEANS THE FULL MONETARY EQUIVALENT OF THE PROPERTY
TAKEN.  THE OWNER IS TO BE PUT IN THE SAME POSITION MONETARILY AS HE
WOULD HAVE OCCUPIED IF HIS PROPERTY HAD NOT BEEN TAKEN."  UNITED STATES
V. REYNOLDS, 397 U.S. 14, 16 (FOOTNOTES OMITTED).  SEE ALSO UNITED
STATES V. MILLER, 317 U.S. 369, 373.  TO DETERMINE SUCH MONETARY
EQUIVALENCE, THE COURT EARLY ESTABLISHED THE CONCEPT OF "MARKET VALUE":
THE OWNER IS ENTITLED TO THE FAIR MARKET VALUE OF HIS PROPERTY AT THE
TIME OF THE TAKING.  NEW YORK V. SAGE, 239 U.S. 57, 61.  SEE ALSO
UNITED STATES V. REYNOLDS, SUPRA, AT 16; UNITED STATES V. MILLER,
SUPRA, AT 374.  AND THIS VALUE IS NORMALLY TO BE ASCERTAINED FROM "WHAT
A WILLING BUYER WOULD PAY IN CASH TO A WILLING SELLER."  IBID.  SEE
UNITED STATES V. VIRGINIA ELECTRIC & POWER CO., 365 U.S. 624, 633. 

BY FAILING TO VALUE THE IMPROVEMENTS IN PLACE OVER THEIR USEFUL LIFE
- TAKING INTO ACCOUNT THE POSSIBILITY THAT THE LEASE MIGHT BE RENEWED
AS WELL AS THE POSSIBILITY THAT IT MIGHT NOT-- THE COURT OF APPEALS IN
THIS CASE FAILED TO RECOGNIZE WHAT A WILLING BUYER WOULD HAVE PAID FOR
THE IMPROVEMENTS.  IF THERE HAD BEEN NO CONDEMNATION, ALMOTA WOULD HAVE
CONTINUED TO USE THE IMPROVEMENTS DURING A RENEWED LEASE TERM, OR IF IT
SOLD THE IMPROVEMENTS TO THE FEE OWNER OR TO A NEW LESSEE AT THE END OF
THE LEASE TERM, IT WOULD HAVE BEEN COMPENSATED FOR THE BUYER'S ABILITY
TO USE THE IMPROVEMENTS IN PLACE OVER THEIR USEFUL LIFE.  AS JUDGE
FRIENDLY WROTE FOR THE COURT OF APPEALS FOR THE SECOND CIRCUIT: 

     "LESSORS DO DESIRE, AFTER ALL, TO KEEP THEIR PROPERTIES
LEASED,

  AND AN EXISTING TENANT USUALLY HAS THE INSIDE TRACK TO A RENEWAL

  FOR ALL KINDS OF REASONS-- AVOIDANCE OF COSTLY ALTERATIONS,

  SAVING OF BROKERAGE COMMISSIONS, PERHAPS EVEN ORDINARY DECENCY ON

  THE PART OF LANDLORDS.  THUS, EVEN WHEN THE LEASE HAS EXPIRED,

  THE CONDEMNATION WILL OFTEN FORCE THE TENANT TO REMOVE OR ABANDON

  THE FIXTURES LONG BEFORE HE WOULD OTHERWISE HAVE HAD TO, AS WELL

  AS DEPRIVE HIM OF THE OPPORTUNITY TO DEAL WITH THE LANDLORD OR A

  NEW TENANT-- THE ONLY TWO PEOPLE FOR WHOM THE FIXTURES WOULD HAVE

  A VALUE UNAFFECTED BY THE HEAVY COSTS OF DISASSEMBLY AND

  REASSEMBLY.  THE CONDEMNOR IS NOT ENTITLED TO THE BENEFIT OF

  ASSUMPTIONS, CONTRARY TO COMMON EXPERIENCE, THAT THE FIXTURES

  WOULD BE REMOVED AT THE EXPIRATION OF THE STATED TERM."  UNITED

  STATES V. CERTAIN PROPERTY, BOROUGH OF MANHATTAN, 388 F.2D, AT

  601-602. 

IT SEEMS PARTICULARLY LIKELY IN THIS CASE THAT ALMOTA COULD HAVE
SOLD THE LEASEHOLD AT A PRICE THAT WOULD HAVE REFLECTED THE CONTINUED
ABILITY OF THE BUYER TO USE THE IMPROVEMENTS OVER THEIR USEFUL LIFE. 
ALMOTA HAD AN UNBROKEN SUCCESSION OF LEASES SINCE 1919, AND IT WAS IN
THE INTEREST OF THE RAILROAD, AS FEE OWNER, TO CONTINUE LEASING THE
PROPERTY, WITH ITS GRAIN ELEVATOR FACILITIES, IN ORDER TO PROMOTE GRAIN
SHIPMENTS OVER ITS LINES.  IN A FREE MARKET, ALMOTA WOULD HARDLY HAVE
SOLD THE LEASEHOLD TO A PURCHASER WHO PAID ONLY FOR THE USE OF THE
FACILITIES OVER THE REMAINDER OF THE LEASE TERM, WITH ALMOTA RETAINING
THE RIGHT THEREAFTER TO REMOVE THE FACILITIES-- IN EFFECT, THE RIGHT OF
SALVAGE.  "BECAUSE THESE FIXTURES DIMINISH IN VALUE UPON REMOVAL, A
MEASURE OF DAMAGES LESS THAN THEIR FAIR MARKET VALUE FOR USE IN PLACE
WOULD CONSTITUTE A SUBSTANTIAL TAKING WITHOUT JUST COMPENSATION.  '(IT
IS INTOLERABLE THAT THE STATE, AFTER CONDEMNING A FACTORY OR WAREHOUSE,
SHOULD SURRENDER TO THE OWNER A STOCK OF SECONDHAND MACHINERY AND IN SO
DOING DISCHARGE THE FULL MEASURE OF ITS DUTY.'"  UNITED STATES V.
1,132.50 ACRES OF LAND, 441 F.2D 356, 358.  /2/ 

UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372, UPON WHICH THE
GOVERNMENT PRIMARILY RELIES, DOES NOT LEAD TO A CONTRARY RESULT.  THE
COURT DID INDICATE THAT THE MEASURE OF DAMAGES FOR THE CONDEMNATION OF
A LEASEHOLD IS TO BE MEASURED IN TERMS OF THE VALUE OF ITS USE AND
OCCUPANCY FOR THE REMAINDER OF THE LEASE TERM, AND THE COURT REFUSED TO
ELEVATE AN EXPECTATION OF RENEWAL INTO A COMPENSABLE LEGAL INTEREST. 
BUT THE COURT WAS NOT DEALING THERE WITH THE FAIR MARKET VALUE OF
IMPROVEMENTS.  UNLIKE PETTY MOTOR, THERE IS NO QUESTION HERE OF
CREATING A LEGALLY COGNIZABLE VALUE WHERE NONE EXISTED, OR OF
COMPENSATING A MERE INCORPOREAL EXPECTATION.  /3/  THE PETITIONER HERE
HAS CONSTRUCTED THE IMPROVEMENTS AND SEEKS ONLY THEIR FAIR MARKET
VALUE.  PETTY MOTOR SHOULD NOT BE READ TO ALLOW THE GOVERNMENT TO
ESCAPE PAYING WHAT A WILLING BUYER WOULD PAY FOR THE SAME PROPERTY. 

THE GOVERNMENT ARGUES THAT IT WOULD BE UNREASONABLE TO COMPENSATE
ALMOTA FOR THE VALUE OF THE IMPROVEMENTS MEASUREDOVER THEIR USEFUL
LIFE, SINCE THE GOVERNMENT COULD PURCHASE THE FEE AND WAIT UNTIL THE
EXPIRATION OF THE LEASE TERM TO TAKE POSSESSION OF THE LAND.  /4/  ONCE
IT HAS PURCHASED THE FEE, THE ARGUMENT GOES, THERE IS NO FURTHER
EXPECTANCY THAT THE IMPROVEMENTS WILL BE USED DURING THEIR USEFUL LIFE
SINCE THE GOVERNMENT WILL ASSUREDLY REQUIRE THEIR REMOVAL AT THE END OF
THE TERM.  BUT THE TAKING FOR THE DAM WAS ONE ACT REQUIRING PROCEEDINGS
AGAINST OWNERS OF TWO INTERESTS.  /5/  AT THE TIME OF THAT "TAKING"
ALMOTA HAD AN EXPECTANCY OF CONTINUED OCCUPANCY OF ITS GRAIN ELEVATOR
FACILITIES.  THE GOVERNMENT MUST PAY JUST COMPENSATION FOR THOSE
INTERESTS "PROBABLY WITHIN THE SCOPE OF THE PROJECT FROM THE TIME THE
GOVERNMENT WAS COMMITTED TO IT."  UNITED STATES V. MILLER, 317 U.S., AT
377.  CF. UNITED STATES V. REYNOLDS, 397 U.S., AT 16-18.  IT MAY NOT
TAKE ADVANTAGE OF ANY DEPRECIATION IN THE PROPERTY TAKEN THAT IS
ATTRIBUTABLE TO THE PROJECT ITSELF.  ID., AT 16; UNITED STATES V.
VIRGINIA ELECTRIC & POWER CO., 365 U.S., AT 635-636.  AT THE TIME OF
THE TAKING IN THIS CASE, THERE WAS AN EXPECTANCY THAT THE IMPROVEMENTS
WOULD BE USED BEYOND THE LEASE TERM.  BUT THE GOVERNMENT HAS SOUGHT TO
PAY COMPENSATION ON THE THEORY THAT AT THE TIME THERE WAS NO
POSSIBILITY THAT THE LEASE WOULD BE RENEWED AND THE IMPROVEMENTS USED
BEYOND THE LEASE TERM.  IT HAS ASKED THAT THE IMPROVEMENTS BE VALUED AS
THOUGH THERE WERE NO POSSIBILITY OF CONTINUED USE.  /6/  THAT IS NOT
HOW THE MARKET WOULD HAVE VALUED SUCH IMPROVEMENTS; IT IS NOT WHAT A
PRIVATE BUYER WOULD HAVE PAID ALMOTA. 

"THE CONSTITUTIONAL REQUIREMENT OF JUST COMPENSATION DERIVES AS MUCH
CONTENT FROM THE BASIC EQUITABLE PRINCIPLES OF FAIRNESS, UNITED STATES
V. COMMODITIES TRADING CORP., 339 U.S. 121, 124 (1950), AS IT DOES FROM
TECHNICAL CONCEPTS OF PROPERTY LAW."  UNITED STATES V. FULLER, POST, AT
490.  IT IS, OF COURSE, TRUE THAT ALMOTA SHOULD BE IN NO BETTER
POSITION THAN IF IT HAD SOLD ITS LEASEHOLD TO A PRIVATE BUYER.  BUT ITS
POSITION SHOULD SURELY BE NO WORSE. 

THE JUDGMENT BEFORE US IS REVERSED AND THE JUDGMENT OF THE DISTRICT
COURT REINSTATED. 

/1/  THIS WAS THE STATEMENT OF THE QUESTION PRESENTED BY THE
GOVERNMENT IN OPPOSING THE GRANT OF THE PETITION FOR CERTIORARI.  AS
THE PETITIONER PHRASED THE QUESTION, THE COURT WAS ASKED TO DECIDE:
"IN AWARDING JUST COMPENSATION TO A TENANT IN THE CONDEMNATION OF A
LEASEHOLD INTEREST IN REAL PROPERTY, INCLUDING TENANT OWNED BUILDING
IMPROVEMENTS AND FIXTURES SITUATED THEREON, MAY AN ELEMENT OF GREAT
INHERENT VALUE IN THE IMPROVEMENTS BE EXCLUDED MERELY BECAUSE IT
DOESNOT, BY ITSELF, RISE TO THE STATUS OF A LEGAL PROPERTY RIGHT." 

/2/  THE COMPENSATION TO WHICH ALMOTA IS ENTITLED IS HARDLY "TOTALLY
SET FREE FROM (ITS) PROPERTY INTEREST," AS THE DISSENT SUGGESTS.  POST,
AT 484.  THE IMPROVEMENTS ARE ASSUREDLY "PRIVATE PROPERTY" THAT THE
GOVERNMENT HAS "TAKEN" AND FOR WHICH IT ACKNOWLEDGES IT MUST PAY
COMPENSATION.  THE ONLY DISPUTE IN THIS CASE IS OVER HOW THOSE
IMPROVEMENTS ARE TO BE VALUED, NOT OVER WHETHER ALMOTA IS TO RECEIVE
ADDITIONAL COMPENSATION FOR BUSINESS LOSSES.  ALMOTA MAY WELL BE UNABLE
TO OPERATE A GRAIN ELEVATOR BUSINESS ELSEWHERE; IT MAY WELL LOSE THE
PROFITS AND OTHER VALUES OF A GOING BUSINESS, BUT IT SEEKS COMPENSATION
FOR NONE OF THAT.  MITCHELL V. UNITED STATES, 267 U.S. 341, DID HOLD
THAT THE GOVERNMENT WAS NOT OBLIGED TO PAY FOR BUSINESS LOSSES CAUSED
BY CONDEMNATION.  BUT IT ASSUREDLY DID NOT HOLD THAT THE GOVERNMENT
COULD FAIL TO PROVIDE FAIR COMPENSATION FOR BUSINESS IMPROVEMENTS THAT
ARE TAKEN-- DISMISS THEM AS WORTH NO MORE THAN SCRAP VALUE-- SIMPLY
BECAUSE IT DID NOT INTEND TO USE THEM.  INDEED, IN MITCHELL THE
GOVERNMENT PAID COMPENSATION BOTH FOR THE LAND, INCLUDING ITS
"ADAPTABILITY FOR USE IN A PARTICULAR BUSINESS," ID., AT 344, AND FOR
THE IMPROVEMENTS THEREON. 

/3/  HENCE, THIS IS NOT A CASE WHERE THE PETITIONER IS SEEKING
COMPENSATION FOR LOST OPPORTUNITIES, SEE UNITED STATES EX REL. TVA V.
POWELSON, 319 U.S., 266, 281-282; OMNIA COMMERCIAL CO. V. UNITED
STATES, 261 U.S. 502.  THE PETITIONER SEEKS ONLY THE FAIR VALUE OF THE
PROPERTY TAKEN BY THE GOVERNMENT. 

NOR IS THIS A CASE WHERE COMPENSATION IS TO BE PAID FOR "THE VALUD
ADDED TO FEE LANDS BY THEIR POTENTIAL USE IN CONNECTION WITH
(GOVERNMENT) PERMIT LANDS," UNITED STATES V. FULLER, POST, P. 488, AT
494, FOR NEITHER ACTION BY THE GOVERNMENT NOR LOCATION ADJACENT TO
PUBLIC PROPERTY CONTRIBUTED ANY ELEMENT OF VALUE TO ALMOTA'S LEASEHOLD
INTEREST. 

/4/  IT WAS ESTABLISHED AT ORAL ARGUMENT THAT WHILE THE GOVERNMENT
HAD CONTRACTED TO ACQUIRE THE RAILROAD'S INTEREST, IT HAD NOT ACQUIRED
THE FEE AT THE TIME OF THE TAKING OF THE LEASEHOLD, NOR DID IT HAVE
POSSESSION AT THE TIME OF THE TRIAL OR APP;AL. 

/5/  "IT FREQUENTLY HAPPENS IN THE CASE OF A LEASE FOR A LONG TERM
OF YEARS THAT THE TENANT EERECTS BUILDINGS OR PUTS FIXTURES INTO THE
BUILDINGS FOR HIS OWN USE.  EVEN IF THE BUILDINGS OR FIXTURES ARE
ATTACHED TO THE REAL ESTATE AND WOULD PASS WITH A CONVEYANCE OF THE
LAND, AS BETWEEN LANDLORD AND TENANT THEY REMAIN PERSONAL PROPERTY.  IN
THE ABSENCE OF A SPECIAL AGREEMENT TO THE CONTRARY, SUCH BUILDINGS OR
FIXTURES MAY BE REMOVED BY THE TENANT AT ANY TIME DURING THE
CONTINUATION OF THE LEASE, PROVIDED SUCH REMOVAL MAY BE MADE WITHOUT
INJURY TO THE FREEHOLD.  THIS RULE, HOWEVER, EXISTS ENTIRELY FOR THE
PROTECTION OF THE TENANT, AND CANNOT BE INVOKED BY THE CONDEMNOR.  IF
THE BUILDINGS OR FIXTURES ARE ATTACHED TO THE REAL ESTATE, THEY MUST BE
TREATED AS REAL ESTATE IN DETERMINING THE TOTAL AWARD.  BUT IN
APPORTIONING THE AWARD, THEY ARE TREATED AS PERSONAL PROPERTY AND
CREDITED TO THE TENANT."  4 P. NICHOLS, EMINENT DOMAIN SEC. 13.121(2)
(3D REV. ED. 1971) (FOOTNOTES OMITTED). 

/6/  SIMILARLY, THE DISSENT TODAY WOULD VALUE THE PETITIONER'S
INTEREST AFTER THE GOVERNMENT HAS CONDEMNED THE UNDERLYING FEE, AND
THUS AFTER THE VALUE OF THE PETITIONER'S INTEREST HAS BEEN DIMINISHED
BECAUSE THE RISK OF NONRENEWAL OF THE LEASE HAS MATERIALIZED.  BUT
THERE WAS ONLY ONE "TAKING," AND AT THE TIME OF THAT "TAKING" THERE WAS
NOT ONLY A RISK THAT THE LEASE WOULD NOT BE RENEWED, BUT A POSSIBILITY
THAT IT WOULD BE AND THAT THE IMPROVEMENTS WOULD BE USED OVER THEIR
USEFUL LIFE. 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
CONCURRING. 

I JOIN THE OPINION OF THE COURT, BUT ADD A FEW WORDS TO INDICATE
WHAT I FIND IMPLICIT IN ITS REJECTION OF THE GOVERNMENT'S CLAIM TO ACT
AS IF IT WERE ALMOTA'S LANDLORD. 

IT IS CLEAR, FIRST OF ALL, THAT THE MARKET VALUE OF IMPROVEMENTS
PLACED ON A LEASEHOLD INTEREST WILL VARY DEPENDING IN MAJOR PART UPON
THE PROBABLE FUTURE CONDUCT OF THE LANDLORD.  IN THIS CASE, BASED ON
THE EXPERIENCE OF NEARLY HALF A CENTURY AND THE EVIDENT SELF-INTEREST
OF THE LANDLORD RAILROAD, THIS CONDUCT COULD BE PREDICTED WITH
CONSIDERABLE CONFIDENCE.  THERE WAS EVERY EXPECTATION THAT THE
IMPROVEMENTS WOULD CONTINUE TO HAVE SIGNIFICANT VALUE BEYOND THE TERM
OF THE PRESENT LEASE.  IN A TRANSACTION BETWEEN A WILLING BUYER AND A
WILLING SELLER, THERE CAN BE NO DOUBT THAT THIS VALUE WOULD HAVE BEEN
ACCORDED APPROPRIATE WEIGHT. 

ON DIFFERENT FACTS, THE MARKET VALUE OF ALMOTA'S INTEREST MIGHT HAVE
BEEN SIGNIFICANTLY LOWER.  IF, FOR EXAMPLE, THE RAILROAD HAD RELOCATED
ITS TRACKS BEFORE THE GOVERNMENT ENTERED THE PICTURE, THE LEASEHOLD
IMPROVEMENTS WOULD HAVE BEEN NEARLY VALUELESS IN THE MARKET.  A RISK
WHICH ALMOTA TOOK IN ERECTING THOSE IMPROVEMENTS, THE RISK THAT THE
RAILROAD WOULD RELOCATE ITS TRACKS, WOULD HAVE PROVED A POOR ONE.  THE
RISK WOULD HAVE BEEN SUBSTANTIALLY THE SAME IF, INDEPENDENTLY OF THE
PRESENT NAVIGATION PROJECT, THE GOVERNMENT HAD PURCHASED THE RAILROAD
WITH THE INTENTION OF OPERATING IT, AND THEREAFTER HAD DECIDED TO
RELOCATE IT OR DISCONTINUE OPERATION.  UNDER THOSE CIRCUMSTANCES, THE
GOVERNMENT COULD PROPERLY HAVE ACTED AS AN ORDINARY LANDLORD, AND ITS
LESSEES COULD HAVE BEEN EXPECTED TO BEAR THE RISK THAT IT WOULD PUT ITS
LAND TO A NEW USE. 

WERE, HOWEVER, THE GOVERNMENT HELD NO INTEREST IN THE LAND UNTIL ITS
NAVIGATION PROJECT REQUIRED THE ACQUISTTION OF BOTH THE FEE AND THE
LEASEHOLD INTERESTS.  IF, AT THAT POINT, THE GOVERNMENT HAD CONDEMNED
BOTH INTERESTS IN A SINGLE PROCEEDING, OR IN SEPARATE PROCEEDINGS,
ALMOTA WOULD HAVE BEEN ENTITLED TO COMPENSATION FOR THE VALUE OF THE
IMPROVEMENTS BEYOND THE PRESENT LEASE TERM.  ALMOTA BORE THE RISK THAT
THE RAILROAD WOULD CHANGE ITS PLANS, BUT SHOULD NOT BE FORCED TO BEAR
THE RISK THAT THE GOVERNMENT WOULD CONDEMN THE FEE AND CHANGE ITS USE. 
WHERE MULTIPLE PROPERTIES OR PROPERTY INTERESTS ARE CONDEMNED FOR A
PARTICULAR PUBLIC PROJECT, THE GOVERNMENT MUST PAY PRE-EXISTING MARKET
VALUE FOR EACH.  NEITHER THE GOVERNMENT NOR THE CONDEMNEE MAY TAKE
ADVANTAGE OF "AN ALTERATION IN MARKET VALUE ATTRIBUTABLE TO THE PROJECT
ITSELF."  UNITED STATES V. REYNOLDS, 397 U.S. 14, 16 (1970); CF. UNITED
STATES V. VIRGINIA ELECTRIC & POWER CO., 365 U.S. 624, 635-636 (1961);
UNITED STATES V. MILLER, 317 U.S. 369, 377 (1943). 

THE RESULT SHOULD NOT BE DIFFERENT MERELY BECAUSE THE GOVERNMENT
ARRANGED TO ACQUIRE THE FEE INTEREST BY NEGOTIATION RATHER THAN BY
CONDEMNATION.  APART FROM CASES WHERE, AS IN UNITED STATES V. RANDS,
389 U.S. 121 (1967), THE GOVERNMENT HAS A PROPERTY INTEREST ANTEDATING
BUT WITHIN THE BOUNDS OF ITS PRESENT PROJECT, IT WOULD BE UNJUST TO
ALLOW THE GOVERNMENT TO USE "SALAMI TACTICS" TO REDUCE THE AMOUNT OF
ONE PROPERTY OWNER'S COMPENSATION BY FIRST ACQUIRING AN ADJOINING PIECE
OF PROPERTY OR ANOTHER INTEREST IN THE SAME PROPERTY FROM ANOTHER
PROPERTY OWNER.  WHILE UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372
(1946), ARGUABLY ESTABLISHES AN EXCEPTION TO THIS PRINCIPLE, I
SUBSCRIBE TO THE COURT'S NARROW CONSTRUCTION OF THAT CASE. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
WHITE, AND MR. JUSTICE BLACKMUN JOIN, DISSENTING. 

PETITIONER IS ENTITLED TO COMPENSATION FOR SO MUCH OF ITS PRIVATE
"PROPERTY" AS WAS TAKEN FOR PUBLIC USE.  THE PARTIES CONCEDE THAT
PETITIONER'S PROPERTY INTEREST HERE TAKEN WAS THE UNEXPIRED PORTION OF
A 20-YEAR LEASE ON LAND OWNED BY THE ORETON-WASHINGTON RAILROAD &
NAVIGATION CO. NEAR COLFAX, WASHINGTON.  THE COURT RECOGNIZES THE
LIMITED NATURE OF PETITIONER'S INTEREST IN THE REAL PROPERTY TAKEN, BUT
CONCLUDES THAT IT WAS ENTITLED TO HAVE ITS LEASEHOLD AND IMPROVEMENTS
VALUED IN SUCH A WAY AS TO INCLUDE THE PROBABILITY THAT PETITIONER'S 20
YEAR LEASE WOULD HAVE BEEN RENEWED BY THE RAILROAD AT ITS EXPIRATION. 

THERE IS A PLAUSIBILITY ABOUT THE COURT'S RESOUNDING ENDORSEMENT OF
THE CONCEPT OF "FAIR MARKET VALUE" AS THE TOUCHSTONE FOR VALUATION, BUT
THE RESULT REACHED BY THE COURT SEEMS TO ME TO BE QUITE AT ODDS WITH
OUT PRIOR CASES.  EVEN IN ITS SHARPLY LIMITED READING OF UNITED STATES
V. PETTY MOTOR CO.. 327 U.S. 372 (1946), THE COURT CONCEDES THAT THE
PETITIONER'S EXPECTATION OF HAVING ITS LEASE RENEWED UPON EXPIRATION IS
NOT ITSELF AN INTEREST IN PROPERTY FOR WHICH IT MAY BE COMPENSATED. 
BUT THE COURT PERMITS THE SAME PRACTICAL RESULT TO BE REACHED BY SAYING
THAT, AT LEAST IN THE CASE OF IMPROVEMENTS.  THE FAIR MARKET VALUE MAY
BE COMPUTED IN TERMS OF A WILLING BUYER'S EXPECTATION THAT THE LEASE
WOULD BE RENEWED. 

IN UNITED STATES V. PETTY MOTOR CO., SUPRA, THE GOVERNMENT ACQUIRED
BY CONDEMNATION THE USE OF A STRUCTURE OCCUPIED BY TENANTS IN
POSSESSION UNDER LEASES FOR VARIOUS UNEXPIRED TERMS.  THE COURT HELD
THAT THE MEASURE OF DAMAGES FOR CONDEMNATION OF A LEASEHOLD FOR THE
REMAINDER OF THE AGREED TERM, LESS THE AGREED RENT.  THE COURT
CONSIDERED THE ARGUMENT, ESSENTIALLY THE SAME RAISED BY PETITIONER
HERE, THAT A HISTORY OF PAST RENEWAL OF THE LEASES TO EXISTING TENANTS
CREATES A COMPENSABLE EXPECTANCY, BUT HELD THAT THE RIGHT TO
COMPENSATION SHOULD BE MEASURED SOLELY ON THE BASIS OF THE REMAINDER OF
THE TENANT'S TERM UNDER THE LEASE ITSELF.  ID., AT 380.  IN SO
DECIDING, THE COURT STATED: 

"THE FACT THAT SOME TENANTS HAD OCCUPIED THEIR LEASEHOLDS BY

  MUTUAL CONSENT FOR LONG PERIODS OF YEARS DOES NOT ADD TO THEIR

  RIGHTS.  EMERY V. BOSTON TERMINAL CO., 178 MASS. 172, 185, 59

  N.E. 763 (PER HOLMES, C. J.): 

     "'IT APPEARED THAT THE OWNERS HAD BEEN IN THE HABIT OF
RENEWING

  THE PETITIONERS' LEASE FROM TIME TO TIME . . . . CHANGEABLE

  INTENTIONS ARE NOT AN INTEREST IN LAND, AND ALTHOUGH NO DOUBT

  SUCH INTENTIONS MAY HAVE ADDED PRACTICALLY TO THE VALUE OF THE

  PETITIONERS' HOLDING, THEY COULD NOT BE TAKEN INTO ACCOUNT IN

  DETERMINING WHAT THE RESPONDENT SHOULD PAY.  THEY ADDED NOTHING

  TO THE TENANTS' LEGAL RIGHTS, AND LEGAL RIGHTS ARE ALL THAT MUST

  BE PAID FOR.  EVEN IF SUCH INTENTIONS ADDED TO THE SALEABLE VALUE

  OF THE LEASE, THE ADDITION WOULD REPRESENT A SPECULATION ON A

  CHANCE, NOT A LEGAL RIGHT."  ID., AT 380 N. 9. 

THE HOLDING IN PETTY WAS CONSISTENT WITH A LONG LINE OF CASES TO THE
EFFECT THAT THE FIFTH AMENDMENT DOES NOT REQUIRE.  ON A TAKING OF A
PROPERTY INTEREST, COMPENSATION FOR MERE EXPECTANCIES OF PROFIT, OR FOR
THE FRUSTRATION OF LICENSES OR CONTRACTUAL RIGHTS THAT PERTAIN TO THE
LAND, BUT THAT ARE NOT SPECIFICALLY TAKEN AND THAT ARE NOT VESTED
PROPERTY INTERESTS.  OMNIA COMMERCIAL CO. V. UNITED STATES, 261 U.S.
502, 510 (1923); SINCLAIM PIPE LINE CO. V. UNITED STATES, 152 CT.CL.
723, 728, 287 F.2D 175, 178 (1961); CHICAGO M., ST.P. & P.R. CO. V.
CHICAGO, R.I. & P.R. CO., 138 F.2D 268, 270-271 (CA8 1943), CERT.
DENIED, 320 U.S. 804 (1944). 

WHILE THE INQUIRY AS TO WHAT PROPERTY INTEREST IS TAKEN BY THE
CONDEMNOR AND THE INQUIRY AS TO HOW THAT PROPERTY INTEREST SHALL BE
VALUED ARE NOT IDENTICAL ONES, THEY CANNOT BE DIVORCED WITHOUT
SERIOUSLY UNDERMINING ANUMBER OF RULES DEALING WITH THE LAW OF EMINENT
DOMAIN THAT THIS COURT HAS EVOLVED IN A SERIES OF DECISIONS THROUGH THE
YEARS.  THE LANDOWNER, AFTER ALL, IS INTERESTED, NOT IN THE LEGAL
TERMINOLOGY USED TO DESCRIBE THE PROPERTY TAKEN FROM HIM BY THE
CONDEMNOR, BUT IN THE AMOUNT OF MONEY HE IS TO BE PAID FOR THAT
PROPERTY.  IT WILL CAUSE HIM LITTLE REMORSE TO LEARN THAT HIS HOPE FOR
A RENEWAL OF A LEASE FOR A TERM OF YEARS IS NOT A PROPERTY INTEREST FOR
WHICH THE GOVERNMENT MUST PAY, IF IN THE SAME BREATH HE IS TOLD THAT
THE LESSOR LEGAL INTEREST THAT HE OWNS MAY BE VALUED TO INCLUDE THE
HOPED-FOR RENEWAL. 

THE NOTION OF "FAIR MARKET VALUE" IS NOT A UNIVERSAL FORMULA FOR
DETERMINING JUST COMPENSATION UNDER THE FIFTH AMENDMENT.  IN UNITED
STATES V. MILLER, 317 U.S. 369, 374 (1943), THE COURT SAID OF MARKET
VALUE: 

     "RESPONDENTS CORRECTLY SAY THAT VALUE IS TO BE ASCERTAINED AS

  OF THE DATE OF TAKING.  BUT THEY INSIST THAT NO ELEMENT WHICH

  GOES TO MAKE UP VALUE AS AT THAT MOMENT IS TO BE DISCARDED OR

  ELIMINATED.  WE THINK THE PROPOSITION IS TOO BROADLY STATED." 

IT IS QUITE APPARENT THAT THE PROPERTY ON WHICH THE OWNER OPERATES A
PROSPEROUS RETAIL ESTABLISHMENT WOULD COMMAND MORE IN AN OPEN MARKET
SALE THAN THE FAIR VALUE OF SO MUCH OF THE ENTERPRISE AS WAS "PRIVATE
PROPERTY" WITHIN THE MEANING OF THE FIFTH AMENDMENT.  YET MITCHELL V.
UNITED STATES, 267 U.S. 341 (1925), STANDS SQUARELY FOR THE PROPOSITION
THAT THE VALUE ADDED TO THE PROPERTY TAKEN BY THE EXISTENCE OF A GOING
BUSINESS IS NO PART OF THE JUST COMPENSATION FOR WHICH THE GOVERNMENT
MUST PAY FOR TAKING THE PROPERTY: 

     "NO RECOVERY THEREFOR CAN BE HAD NOW AS FOR A TAKING OF THE

  BUSINESS.  THERE IS NO FINDING AS A FACT THAT THE GOVERNMENT TOOK

  THE BUSINESS, OR THAT WHAT IT DID WAS INTENDED AS A TAKING.  IF

  THE BUSINESS WAS DESTROYED, THE DESTRUCTION WAS AN UNINTENDED

  INCIDENT OF THE TAKING OF LAND." 

ID., AT 345. 

MORE RECENTLY, IN UNITED STATES EX REL. TVA V. POWELSON, 319 U.S.
266, 283 (1943), THE COURT GENERALIZED FURTHER: 

"THAT WHICH IS NOT 'PRIVATE PROPERTY' WITHIN THE MEANING OF THE

  FIFTH AMENDMENT LIKEWISE MAY BE A THING OF VALUE WHICH IS

  DESTROYED OR IMPAIRED BY THE TAKING OF LANDS BY THE UNITED

  STATES.  BUT LIKE THE BUSINESS DESTROYED BUT NOT 'TAKEN' IN THE

  MITCHELL CASE IT NEED NOT BE REFLECTED IN THE AWARD DUE THE

  LANDOWNER UNLESS CONGRESS SO PROVIDES." 

IN EITHER MITCHELL OR POWELSON, THE RESULT WOULD IN ALL PROBABILITY
HAVE BEEN DIFFERENT HAD THE COURT APPLIED THE REASONING THAT IT APPLIES
IN THIS CASE.  HERE, TOO, THE IMPROVEMENTS ON THE PROPERTY ARE NOT
DESIRED BY THE GOVERNMENT FOR THE PROJECT IN QUESTION, BUT THE TAKING
OF PETITIONER'S LEASEHOLD INTEREST PREVENTS ITS CONTINUING TO HAVE
THEIR USE FOR THE INDEFINITE FUTURE AS IT HAD ANTICIPATED.  THE COURT
SAYS THAT ALTHOUGH ITS "PROPERTY" INTEREST WOULD HAVE EXPIRED 7 1/2
YEARS, THE MARKET VALUE OF THAT INTEREST MAY BE COMPUTED ON THE BASIS
OF EXPECTANCIES THAT DO NOT RISE TO THE LEVEL OF A PROPERTY INTEREST
UNDER THE FIFTH AMENDMENT. 

IF PERMISSIBLE METHODS OF VALUATION ARE TO BE THUS TOTALLY SET FREE
FROM THE PROPERTY INTEREST THAT THEY PURPORT TO VALUE, IT IS DIFFICULT
TO SEE WHY THE SAME STANDARDS SHOULD NOT BE APPLIED TO A GOING
BUSINESS.  ALTHOUGH THE GOVERNMENT DOES NOT TAKE THE GOING BUSINESS,
AND ALTHOUGH THE BUSINESS IS NOT ITSELF A "PROPERTY" INTEREST WITHIN
THE FIFTH AMENDMENT, SINCE PURCHASERS ON THE OPEN MARKET WOULD HAVE
PAID AN ADDED INCREMENT OF VALUE FOR THE PROPERTY BECAUSE A BUSINESS
WAS LOCATED ON IT, IT MAY WELL BE THAT SUCH INCREMENT OF VALUE IS
PROPERLY INCLUDED IN A CONDEMNATION AWARD UNDER THE COURT'S HOLDING
TODAY.  AND IT WILL ASSUREDLY MAKE NO DIFFERENCE TO THE PROPERTY OWNER
TO LEARN THAT DESTRUCTION OF A GOING BUSINESS IS NOT COMPENSABLE, IF HE
BE ASSURED THAT THE PROPERTY CONCEDEDLY TAKEN UPON WHICH THE BUSINESS
WAS LOCATED MAY BE VALUED INSUCH A WAY AS TO INCLUDE THE AMOUNT A
PURCHASER WOULD HAVE PAID FOR THE BUSINESS.     THE EXTENT TO WHICH THE
COURT'S DECISION IN THIS CASE WILL UNSETTLE CONDEMNATION LAW IS
OBSCURED BY THE FACT THAT THE PARTIES, MOTIVATED NO DOUBT BY
CONDEMNATION LAWYERS' WELL-KNOWN PROPENSITY TO ENTER INTO FACTUAL
STIPULATIONS THAT PRESENT ABSTRACT QUESTIONS OF VALUATION THEORY FOR
DECISION, HAVE STIPULATED AS TO AMOUNTS TO BE AWARDED DEPENDING ON
WHICH PARTY PREVAILS.  BUT THE UNDERLYING DIFFICULTY WITH PETITIONER'S
THEORY WAS LUCIDLY DEMONSTRATED BY THE LATE JUDGE MADDEN IN HIS OPINION
FOR THE COURT OF APPEALS IN THIS CASE, REFERRING TO THE SIMILAR HOLDING
OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT IN SCULLY V. UNITED
STATES, 409 F.2D 1061 (1969): 

     "IF THE LAW WERE TO GO INTO THE BUSINESS OF AWARDING

  COMPENSATION FOR AN EXPECTANCY WHICH NEVER MATERIALIZED, BECAUSE

  THE SOVEREIGH 'TOOK' THE SUBJECT OF THE EXPECTANCY, SHOULD, IN

  SCULLY, SUPRA, E.G., THE ONE YEAR LESSEES BE COMPENSATED FOR THE

  LOSS OF A FIVE YEAR OCCUPANCY, A 50 YEAR OCCUPANCY, A PERPETUAL

  OCCUPANCY?  IN OUR INSTANT CASE, WAS THE STIPULATION BASED UPON

  SOME ACTUARIAL COMPUTATION SUCH AS THE PROSPECTIVE LIFE OF THE

  BUILDINGS AND MACHINERY, OR THE LIFE OF THE RAILROAD, OR UPON

FREE-RANGING GUESSWORK?  UNITED STATES V. 22.95 ACRES OF LAND,

  450 F;2D 125, 129 (CA9 1971). 

THE COURT'S CONCLUSION GAINS NO SUPPORT FROM ITS CITATION OF THE
RECOGNIZED PRINCIPLE THAT THE GOVERNMENT MAY NOT TAKE ADVANTAGE OF ANY
DEPRECIATION IN THE PROPERTY TAKEN THAT IS ATTRIBUTABLE TO THE PROJECT
ITSELF, UNITED STATES V. REYNOLDS, 397 U.S. 14 (1970); UNITED STATES V.
MILLER, 317 U.S. 369 (1943).  THE VALUE OF PETITIONER'S PROPERTY TAKEN
COULD NOT BE DIMINISHED BY THE FACT THAT THE RIVER IMPROVEMENT AND
NAVIGATION FOR WHICH THE GOVERNMENT TOOK ITS PROPERTY MIGHT HAVE HAD A
DEPRESSING EFFECT ON PRE-EXISTING MARKET VALUE.  BUT THE GOVERNMENT
MAKES NO SUCH CONTENTION HERE.  WHILE, UNDER EXISTING PRINCIPLES OF
CONSTITUTIONAL EMINENT DOMAIN LAW, THE VALUE OF PETITIONER'S PROPERTY
WAS NOT SUBJECT TO DIMINUTION RESULTING FROM THE EFFECT ON MARKET VALUE
OF THE IMPROVEMENT THAT THE GOVERNMENT PROPOSED TO CONSTRUCT, IT WAS
SUBJECT TO THE HAZARD OF NON-RENEWAL OF PETITIONER'S LEASEHOLD
INTEREST.  THE FACT THAT THE GOVERNMENT HAS CONDEMNED THE UNDERLYING
FEE FOR THE SAME PROJECT, AND HAS THEREFORE MADE THE RISK OF NONRENEWAL
A CERTAINTY, UNDOUBTEDLY DIMINISHES THE MARKET VALUE OF PETITIONER'S
LEASEHOLD INTEREST.  BUT THE DIMINUTION RESULTS, NOT FROM ANY
DEPRESSING EFFECT OF THE IMPROVEMENT THAT THE GOVERNMENT WILL CONSTRUCT
AFTER HAVING TAKEN THE LEASEHOLD, BUT FROM A MATERIALIZATION OF THE
RISK OF TRANSFER OF OWNERSHIP OF THE UNDERLYING FEE TO WHICH ITS VALUE
WAS ALWAYS SUBJECT. 

IN AT LEAST PARTIALLY CUTTING LOOSE THE NOTION OF "JUST COMPENSATION"
FROM THE NOTION OF "PRIVATE PROPERTY" THAT HAS DEVELOPED UNDER THE
FIFTH AMENDMENT, THE COURT DEPARTS FROM THE SETTLED DOCTRINE OF
NUMEROUS PRIOR CASES THAT HAVE QUITE RIGOROUSLY ADHERED TO THE
PRINCIPLE THAT DESTRUCTION OF VALUE BY ITSELF AFFORDS NO OCCASION FOR
COMPENSATION.  UNITED STATES V. FULLER, POST, P. 488; UNITED STATES V.
RANDS, 389 U.S. 121 (1967).  "(DAMAGE ALONE GIVES COURTS NO POWER TO
REQUIRE COMPENSATION WHERE THERE IS NOT AN ACTUAL TAKING OF PROPERTY." 
UNITED STATES V. WILLOW RIVER POWER CO., 324 U.S. 499, 510 (1945). 
"(THE EXISTENCE OF VALUE ALONE DOES NOT GENERATE INTERESTS PROTECTED BY
THE CONSTITUTION AGAINST DIMINUTION BY THE GOVERNMENT . . . . "
REICHELDERFER V. QUINN, 287 U.S. 315, 319 (1932).  WHILE THE COURT
PURPORTS TO FOLLOW THIS WELL-ESTABLISHED PRINCIPLE BY REQUIRING THE
COMPENSATION PAID TO BE DETERMINED ON THE BASIS OF PRIVATE PROPERTY
ACTUALLY TAKEN, ITS ENDORSEMENT OF VALUATION COMPUTED IN PART ON AN
EXPECTANCY THAT IS NO PART OF THE PROPERTY TAKEN REPRESENTS A DEPARTURE
FROM THIS SETTLED DOCTRINE.  I THEREFORE DISSENT. 

LAWRENCE EARL HICKMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS PHILIP H. FARIS. 

ASSISTANT ATTORNEY GENERAL FRIZZELL ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, WM.
TERRY BRAY, EDMUND B. CLARK, AND JACQUES B. GELIN. 
..END :





UNITED STATES V. FULLER, 409 U.S. 488 


       UNITED STATES V. FULLER ET UX.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

        NO. 71-559.  ARGUED OCTOBER 18, 1972-- DECIDED JANUARY 16,

           1973 


IN A CONDEMNATION PROCEEDING BROUGHT BY THE UNITED STATES,
RESPONDENTS MADE A CLAIM, WHICH THE DISTRICT COURT AND COURT OF APPEALS
UPHELD, TO COMPENSATION FOR ENHANCED VALUE ON THE OPEN MARKET BECAUSE
OF USE OF THE CONDEMNED FEE LANDS IN CONJUNCTION WITH ADJOINING FEDERAL
LANDS FOR WHICH RESPONDENTS HELD PERMITS UNDER THE TAYLOR GRAZING ACT. 
HELD:  THE FIFTH AMENDMENT REQUIRES NO COMPENSATION FOR ANY VALUE ADDED
TO THE FEE LANDS BY THE PERMITS, WHICH ARE REVOCABLE AND, BY THE ACT'S
TERMS, CREATE NO PROPERTY RIGHTS.  PP. 490-494. 

442 F.2D 504, REVERSED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  POWELL, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND MARSHALL,
JJ., JOINED, POST, P. 494. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS OPERATED A LARGE-SCALE "COW-CALF" RANCH NEAR THE
CONFLUENCE OF THE BIG SANDY AND BILL WILLIAMS RIVERS IN WESTERN
ARIZONA.  THEIR ACTIVITIES WERE CONDUCTED ON LANDS CONSISTING OF 1,280
ACRES THAT THEY OWNED IN FEE SIMPLE (FEE LANDS), 12,017 ACRES LEASED
FROM THE STATE OF ARIZONA, AND 31,461 ACRES OF FEDERAL DOMAIN HELD
UNDER TAYLOR GRAZING ACT PERMITS ISSUED IN ACCORDANCE WITH SEC. 3 OF
THE ACT, 48 STAT. 1270, AS AMENDED, 43 U.S.C. 315B.  THE TAYLOR GRAZING
ACT AUTHORIZES THE SECRETARY OF THE INTERIOR TO ISSUE PERMITS TO
LIVESTOCK OWNERS FOR GRAZING THEIR STOCK ON FEDERAL GOVERNMENT LANDS. 
THESE PERMITS ARE REVOCABLE BY THE GOVERNMENT.  THE ACT PROVIDES,
MOREOVER, THAT ITS PROVISIONS "SHALL NOT CREATE ANY RIGHT, TITLE,
INTEREST, OR ESTATE IN OR TO THE LANDS."  IBID. 

THE UNITED STATES, PETITIONER HERE, CONDEMNED 920 ACRES OF
RESPONDENTS' FEE LANDS.  AT THE TRIAL IN THE DISTRICT COURT FOR THE
PURPOSE OF FIXING JUST COMPENSATION FOR THE LANDS TAKEN, THE PARTIES
DISAGREED AS TO WHETHER THE JURY MIGHT CONSIDER VALUE ACCRUING TO THE
FEE LANDS AS A RESULT OF THEIR ACTUAL OR POTENTIAL USE IN COMBINATION
WITH THE TAYLOR GRAZING ACT "PERMIT" LANDS.  THE GOVERNMENT CONTENDED
THAT SUCH ELEMENT OF INCREMENTAL VALUE TO THE FEE LANDS COULD NEITHER
BE TAKEN INTO CONSIDERATION BY THE APPRAISERS WHO TESTIFIED FOR THE
PARTIES NOR CONSIDERED BY THE JURY.  RESPONDENTS CONCEDED THAT THEIR
PERMIT LANDS COULD NOT THEMSELVES BE ASSIGNED ANY VALUE IN VIEW OF THE
QUOTED PROVISIONS OF THE TAYLOR GRAZING ACT.  THEY CONTENDED, HOWEVER,
THAT IF ON THE OPEN MARKET THE VALUE OF THEIR FEE LANDS WAS ENHANCED
BECAUSE OF THEIR ACTUAL OR POTENTIAL USE IN CONJUNCTION WITH PERMIT
LANDS, THAT ELEMENT OF VALUE OF THE FEE LANDS COULD BE TESTIFIED TO BY
APPRAISERS AND CONSIDERED BY THE JURY.  THE DISTRICT COURT
SUBSTANTIALLY ADOPTED RESPONDENTS' POSITION, FIRST IN A PRETRIAL ORDER
AND THEN IN ITS CHARGE TO THE JURY OVER APPROPRIATE OBJECTION BY THE
GOVERNMENT. 

ON THE GOVERNMENT'S APPEAL, THE COURT OF APPEALS FOR THE NINTH
CIRCUIT AFFIRMED THE JUDGMENT AND APPROVED THE CHARGE OF THE DISTRICT
COURT.  442 F.2D 504.  THAT COURT FOLLOWED THE EARLIER CASE OF UNITED
STATES V. JARAMILLO, 190 F.2D 300 (CA10 1951), AND DISTINGUISHED OUR
HOLDING IN UNITED STATES V. RANDS, 389 U.S. 121 (1967).  THE DISSENTING
JUDGE IN THE NINTH CIRCUIT THOUGHT THE ISSUE CONTROLLED BY RANDS,
SUPRA. WE GRANTED CERTIORARI.  404 U.S. 1037 (1972). 

OUR PRIOR DECISIONS HAVE VARIOUSLY DEFINED THE "JUST COMPENSATION
THAT THE FIFTH AMENDMENT REQUIRES TO BE MADE WHEN THE GOVERNMENT
EXERCISES ITS POWER OF EMINENT DOMAIN.  THE OWNER IS ENTITLED TO FAIR
MARKET VALUE, UNITED STATES V. MILLER, 317 U.S. 369, 374 (1943), BUT
THAT TERM IS "NOT AN ABSOLUTE STANDARD NOR AN EXCLUSIVE METHOD OF
VALUATION."  UNITED STATES V. VIRGINIA ELECTRIC & POWER CO., 365 U.S.
624, 633 (1961).  THE CONSTITUTIONAL REQUIREMENT OF JUST COMPENSATION
DERIVES AS MUCH CONTENT FROM THE BASIC EQUITABLE PRINCIPLES OF
FAIRNESS, UNITED STATES V. COMMODITIES TRADING CORP., 339 U.S. 121, 124
(1950), AS ITS DOES FROM TECHNICAL CONCEPTS OF PROPERTY LAW. 

THE RECORD SHOWS THAT SEVERAL APPRAISER WITNESSES FOR RESPONDENTS
TESTIFIED THAT THEY INCLUDED AS AN ELEMENT OF THE VALUE THAT THEY
ASCRIBED TO RESPONDENTS' FEE LANDS THE AVAILABILITY OF RESPONDENTS'
TAYLOR GRAZING ACT PERMIT LANDS TO BE USED IN CONJUNCTION WITH THE FEE
LANDS.  UNDER THE DISTRICT COURT'S CHARGE TO THE JURY, THE JURY WAS
ENTITLED TO CONSIDER THIS ELEMENT OF VALUE TESTIFIED TO BY THE
APPRAISERS.  THIS COURT HAS HELD THAT GENERALLY THE HIGHEST AND BEST
USE OF A PARCEL MAY BE FOUND TO BE A USE IN CONJUNCTION WITH OTHER
PARCELS, AND THAT ANY INCREMENT OF VALUE RESULTING FROM SUCH
COMBINATION MAY BE TAKEN INTO CONSIDERATION IN VALUING THE PARCEL
TAKEN.  OLSON V. UNITED STATES, 292 U.S. 246, 256 (1934).  THE QUESTION
PRESENTED BY THIS CASE IS WHETHER THERE IS AN EXCEPTION TO THAT GENERAL
RULE WHERE THE PARCELS TO BE AGGREGATED WITH THE LAND TAKEN ARE
THEMSELVES OWNED BY THE CONDEMNOR AND USED BY THE CONDEMNEE ONLY UNDER
REVOCABLE PERMIT FROM THE CONDEMNOR. 

TO SAY THAT THIS ELEMENT OF VALUE WOULD BE CONSIDERED BY A POTENTIAL
BUYER ON THE OPEN MARKET, AND IS THEREFORE A COMPONENT OF "FAIR MARKET
VALUE," IS NOT THE END OF THE INQUIRY.  IN UNITED STATES V. MILLER,
SUPRA, THIS COURT HELD THAT THE INCREMENT OF FAIR MARKET VALUE
REPRESENTED BY KNOWLEDGE OF THE GOVERNMENT'S PLAN TO CONSTRUCT THE
PROJECT FOR WHICH THE LAND WAS TAKEN WAS NOT INCLUDED WITHIN THE
CONSTITUTIONAL DEFINITION OF "JUST COMPENSATION."  THE COURT THERE
SAID: 

     "BUT (RESPONDENTS) INSIST THAT NO ELEMENT WHICH GOES TO MAKE
UP

  VALUE . . . IS TO BE DISCARDED OR ELIMINATED.  WE THINK THE

  PROPOSITION IS TOO BROADLY STATED.  . . . "  317 U.S., AT 374. 

UNITED STATES V. CORS, 337 U.S. 325 (1949), HELD THAT THE JUST
COMPENSATION REQUIRED TO BE PAID TO THE OWNER OF A TUG REQUISITIONED BY
THE GOVERNMENT IN OCTOBER 1942, DURING THE SECOND WORLD WAR, COULD NOT
INCLUDE THE APPRECIATION IN MARKET VALUE FOR TUGS CREATED BY THE
GOVERNMENT'S OWN INCREASED WARTIME NEED FOR SUCH VESSELS.  THE COURT
SAID:  "THAT IS A VALUE WHICH THE GOVERNMENT ITSELF CREATED AND HENCE
IN FAIRNESS SHOULD NOT BE REQUIRED TO PAY."  ID., AT 334.  A LONG LINE
OF CASES DECIDED BY THIS COURT DEALING WITH THE GOVERNMENT'S
NAVIGATIONAL SERVITUDE WITH RESPECT TO NAVIGABLE WATERS EVIDENCES A
CONTINUING REFUSAL TO INCLUDE, AS AN ELEMENT OF VALUE IN COMPENSATING
FOR FAST LANDS THAT ARE TAKEN, ANY BENEFITS CONFERRED BY ACCESS TO SUCH
BENEFITS AS A POTENTIAL PORTSITE OR A POTENTIAL HYDRO-ELECTRIC SITE. 
UNITED STATES V. RANDS, SUPRA; UNITED STATES V. TWIN CITY POWER CO.,
350 U.S. 222 (1956); UNITED STATES V. COMMODORE PARK, 324 U.S. 386
(1945). 

THESE CASE GO FAR TOWARD ESTABLISHING THE GENERAL PRINCIPLE THAT THE
GOVERNMENT AS CONDEMNOR MAY NOT BE REQUIRED TO COMPENSATE A CONDEMNEE
FOR ELEMENTS OF VALUE THAT THE GOVERNMENT HAS CREATED, OR THAT IT MIGHT
HAVE DESTROYED UNDER THE EXERCISE OF GOVERNMENTAL AUTHORITY OTHER THAN
THE POWER OF EMINENT DOMAIN.  IF, AS IN RANDS, THE GOVERNMENT NEED NOT
PAY FOR VALUE THAT IT COULD HAVE ACQUIRED BY EXERICSE OF A SERVITUDE
ARISING UNDER THE COMMERCE POWER, IT WOULD SEEM A FORTIORI THAT IT NEED
NOT COMPENSATE FOR VALUE THAT IT COULD REMOVE BY REVOCATION OF A PERMIT
FOR THE USE OF LANDS THAT IT OWNED OUTRIGHT. 

WE DO NOT SUGGEST THAT SUCH A GENERAL PRINCIPLE CAN BE PUSHED TO ITS
ULTIMATE LOGICAL CONCLUSION.  IN UNITED STATES V. MILLER, SUPRA, THE
COURT HELD THAT "JUST COMPENSATION" DID INCLUDE THE INCREMENT OF VALUE
RESULTING FROM THE COMPLETED PROJECT TO NEIGHBORING LANDS ORIGINALLY
OUTSIDE THE PROJECT LIMITS, BUT LATER BROUGHT WITHIN THEM.  NOR MAY THE
UNITED STATES "BE EXCUSED FROM PAYING JUST COMPENSATION MEASURED BY THE
VALUE OF THE PROPERTY AT THE TIME OF THE TAKING" BECAUSE THE STATE IN
WHICH THE PROPERTY IS LOCATED MIGHT, THROUGH THE EXERCISE OF ITS LEASE
POWER, HAVE DIMINISHED THAT VALUE WITHOUT PAYING COMPENSATION.  UNITED
STATES EX REL. TVA V. POWELSON, 319 U.S. 266, 284 (1943). 

"COURTS HAVE HAD TO ADOPT WORKING RULES IN ORDER TO DO SUBSTANTIAL
JUSTICE IN EMINENT DOMAIN PROCEEDINGS."  UNITED STATES V. MILLER,
SUPRA, AT 375.  SEEKING AS BEST WE MAY TO EXTRAPOLATE FROM THESE PRIOR
DECISIONS SUCH A "WORKING RULE," WE BELIEVE THAT THERE IS SIGNIFICANT
DIFFERENCE BETWEEN THE VALUE ADDED TO PROPERTY BY A COMPLETED PUBLIC
WORKS PROJECT, FOR WHICH THE GOVERNMENT MUST PAY, AND THE VALUE ADDED
TO FEE LANDS BY A REVOCABLE PERMIT AUTHORIZING THE USE OF NEIGHBORING
LANDS THAT THE GOVERNMENT OWNS.  THE GOVERNMENT MAY NOT DEMAND THAT A
JURY BE ARBITRARILY PRECLUDED FROM CONSIDERING AS AN ELEMENT OF VALUE
THE PROXIMITY OF A PARCEL TO A POST OFFICE BUILDING, SIMPLY BECAUSE THE
GOVERNMENT AT ONE TIME BUILT THE POST OFFICE.  BUT HERE RESPONDENTS
RELY ON NO MERE PROXIMITY TO A PUBLIC BUILDING OR TO PUBLIC LANDS
DEDICATED TO, AND OPEN TO, THE PUBLIC AT LARGE.  THEIR THEORY OF
VALUATION AGGREGATES THEIR PARCEL WITH LAND OWNED BY THE GOVERNMENT TO
FORM A PRIVATELY CONTROLLED UNIT FROM WHICH THE PUBLIC WOULD BE
EXCLUDED.  IF, AS WE HELD IN RANDS, A PERSON MAY NOT DO THIS WITH
RESPECT TO PROPERTY INTERESTS SUBJECT TO THE GOVERNMENT'S NAVIGATIONAL
SERVITUDE, HE SURELY MAY NOT DO IT WITH RESPECT TO PROPERTY OWNED
OUTRIGHT BY THE GOVERNMENT.  THE COURT'S STATEMENT IN RANDS RESPECTING
PORTSITE VALUE IS PRECISELY APPLICABLE TO RESPONDENTS'  CONTENTION HERE
THAT THEY MAY AGGREGATE THEIR FEE LANDS WITH PERMIT LANDS OWNED BY THE
GOVERNMENT FOR VALUATION PURPOSES: 

     "(IF THE OWNER OF THE FAST LANDS CAN DEMAND PORT SITE VALUE AS

  PART OF HIS COMPENSATION, 'HE GETS THE VALUE OF A RIGHT THAT THE

  GOVERNMENT IN THE EXERCISE OF ITS DOMINANT SERVITUDE CAN GRANT OR

  WITHHOLD AS IT CHOOSES . . . . TO REQUIRE THE UNITED STATES TO

  PAY FOR THIS . . . VALUE WOULD BE TO CREATE PRIVATE CLAIMS IN THE

  PUBLIC DOMAIN.'"  389 U.S., AT 125, QUOTING UNITED STATES V. TWIN

CITY POWER CO., 350 U.S., AT 228. 

WE HOLD THAT THE FIFTH AMENDMENT DOES NOT REQUIRE THE GOVERNMENT TO PAY
FOR THAT ELEMENT OF VALUE BASED ON THE USE OF RESPONDENTS' FEE LANDS IN
COMBINATION WITH THE GOVERNMENT'S PERMIT LANDS. 

THE COURT OF APPEALS BASED ITS HOLDING IN PART ON ITS CONCLUSION
THAT ALTHOUGH THE FIFTH AMENDMENT MIGHT NOT HAVE REQUIRED THE
GOVERNMENT TO PAY COMPENSATION OF THE SORT PERMITTED BY THE TRIAL
COURT'S CHARGE TO THE JURY, THE HISTORY OF THE TAYLOR GRAZING ACT
INDICATED THAT CONGRESS HAD INTENDED THAT SUCH COMPENSATION BE PAID. 
CONGRESS MAY, OF COURSE, PROVIDE IN CONNECTION WITH CONDEMNATION
PROCEEDINGS THAT PARTICULAR ELEMENTS OF VALUE OR PARTICULAR RIGHTS BE
PAID FOR EVEN THOUGH IN THE ABSENCE OF SUCH PROVISION THE CONSTITUTION
WOULD NOT REQUIRE PAYMENT.  UNITED STATES V. GERLACH LIVE STOCK CO.,
339 U.S. 725 (1950).  BUT WE DO THINK THE FACTORS RELIED UPON BY THE
COURT OF APPEALS FALL FAR SHORT OF THE DIRECTION CONTAINED IN THE
RECLAMATION ACT OF 1902, 32 STAT. 388, AS AMENDED, THAT PAYMENT BE MADE
FOR RIGHTS RECOGNIZED UNDER STATE LAW, WHICH WAS DETERMINATIVE OF THE
OUTCOME IN GERLACH.  THE PROVISIONS OF THE TAYLOR GRAZING ACT QUOTED
SUPRA MAKE CLEAR THE CONGRESSIONAL INTENT THAT NO COMPENSABLE PROPERTY
RIGHT BE CREATED IN THE PERMIT LANDS THEMSELVES AS A RESULT OF THE
ISSUANCE OF THE PERMIT.  GIVEN THAT INTENT, IT WOULD BE UNUSUAL, WE
THINK FOR CONGRESS TO HAVE TURNED AROUND AND AUTHORIZED COMPENSATION
FOR THE VALUE ADDED TO FEE LANDS BY THEIR POTENTIAL USE IN CONNECTION
WITH PERMIT LANDS.  WE FIND NO SUCH AUTHORIZATION IN THE APPLICABLE
CONGRESSIONAL ENACTMENTS. 

 REVERSED. 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

I DISSENT FROM A DECISION WHICH, IN MY VIEW, DILUTES THE MEANING OF
THE JUST COMPENSATION REQUIRED BY THE FIFTH AMENDMENT WHEN PROPERTY IS
CONDEMNED BY THE GOVERNMENT.  AS A FULL UNDERSTANDING OF THE FACTS IS
NECESSARY, I WILL BEGIN BY RESTATING THEM. 

THIS IS A CONDEMNATION PROCEEDING BROUGHT BY THE UNITED STATES TO
ACQUIRE TITLE TO 920 OF 1,280 ACRES OF LAND, OWNED IN FEE BY
RESPONDENTS, WHICH IS WITHIN THE AREA TO BE FLOODED BY A DAM AND
RESERVOIR PROJECT IN ARIZONA.  AT THE TIME OF THE TAKING RESPONDENTS
USED THIS FEE LAND AS A BASE FOR A CATTLE OPERATION KNOWN AS A "COW
CALF" RANCH.  A DEPENDABLE SOURCE OF WATER ALLOWED INTENSE CULTIVATION
OF THE FEE LAND TO PROVIDE THE BASIC SOURCE OF FEED FOR THE CATTLE.  IN
CONNECTION WITH THEIR FEE LAND, RESPONDENTS USED 31,461 ACRES OF
ADJACENT PUBLIC LAND ON WHICH THEY HELD REVOCABLE GRAZING PERMITS
ISSUED UNDER THE TAYLOR GRAZING ACT.  43 U.S.C. 315 ET SEQ. /1/  THE
PUBLIC LAND WAS USED FOR GRAZING DURING FAVORABLE SEASONS, AND ROADS
RUNNING ACROSS THE PUBLIC LAND CONNECTED RESPONDENTS' THREE PARCELS OF
FEE LAND. 

THE PERMITS HELD BY RESPONDENTS ON THE PUBLIC LAND ACCORDED
EXCLUSIVE BUT REVOCABLE GRAZING RIGHTS TO RESPONDENTS.  BY THE TERMS OF
THE ACT, THE ISSUANCE OF A PERMIT DOES NOT "CREATE ANY RIGHT, TITLE,
INTEREST, OR ESTATE IN OR TO THE LANDS."  43 U.S.C. 315B.  NONETHELESS,
GRAZING PERMITS ARE OF CONSIDERABLE VALUE TO RANCHERS AND SERVE A
CORRESPONDING PUBLIC INTEREST IN ASSURING THE "MOST BENEFICIAL USE" OF
RANGE LANDS.  HATAHLEY V. UNITED STATES, 351 U.S. 173, 177 (1956). 
RESPONDENTS' PERMITS HAD NOT BEEN REVOKED AT THE TIME OF THE TAKING,
NOR, SO FAR AS THE RECORD REVEALS, HAVE THEY YET BEEN REVOKED.  THE
RECORD ALSO SHOWS THAT ONLY A SMALL FRACTION OF THE PUBLIC GRAZING LAND
WILL BE FLOOEDE IN THE DAM AND RESERVOIR PROJECT.  THUS, THE PUBLIC
LAND WHICH RESPONDENTS ASSERT GAVE ADDED VALUE TO THEIR FEE LAND
REMAINS SUBSTANTIALLY INTACT AND AVAILABLE FOR TAYLOR GRAZING ACT
PURPOSES. 

THE DISTRICT COURT ALLOWED RESPONDENTS TO INTRODUCE TESTIMONY AS TO
THE MARKET VALUE OF THE FEE LAND WHICH TOOK INTO CONSIDERATION ITS
PROXIMITY TO THIS PUBLIC LAND.  IN RELEVANT PART, THE DISTRICT COURT
INSTRUCTED THE JURY AS FOLLOWS: 

     "DURING THE COURSE OF THIS TRIAL, REFERENCE HAS BEEN MADE TO

  GRAZING PERMITS HELD BY THE DEFENDANTS ON PUBLIC LAND.  YOU ARE

  INSTRUCTED THAT SUCH PERMITS ARE MERE LICENSES WHICH MAY BE

  REVOKED AND ARE NOT COMPENSABLE AS SUCH.  HOWEVER, SHOULD YOU

DETERMINE THAT THE HIGHEST AND BEST USE OF THE PROPERTY TAKEN IS

  A USE IN CONJUNCTION WITH THOSE PERMIT LANDS, YOU MAY TAKE THOSE

  PERMITS INTO CONSIDERATION IN ARRIVING AT YOUR VALUE OF THE

  SUBJECT LAND, KEEPING IN MIND THE POSSIBILITY THAT THEY MAY BE

  WITHDRAWN OR CANCELED AT ANY TIME WITHOUT A CONSTITUTIONAL

  OBLIGATION TO PAY THE COMPENSATION THEREFOR. 

      "EVIDENCE HAS BEEN INTRODUCED OF DEFENDANTS' USE OF THEIR

  DEEDED LAND WHICH IS BEING TAKEN, IN CONJUNCTION WITH SURROUNDING

  LAND OWNED BY THE UNITED STATES, FOR WHICH DEFENDANTS HAVE

  GRAZING PERMITS, AND LAND BELONGING TO THE STATE OF ARIZONA,

  WHICH DEFENDANTS LEASED.  IN FIXING THE FAIR MARKET VALUE OF THE

  FEE LAND BEING TAKEN AND THE COMPENSATION TO BE AWARDED, YOU ARE

  NOT TO AWARD DEFENDANTS ANY COMPENSATION FOR THE LAND OWNED BY

  THE UNITED STATES OR THE STATE OF ARIZONA.  HOWEVER, IN

  DETERMINING THE VALUE OF THE FEE LAND AND IN AWARDING

  COMPENSATION TO THE OWNERS, YOU SHOULD CONSIDER THE AVAILABILITY

  AND ACCESSIBILITY OF THE PERMIT AND LEASED LAND AND ITS USE IN

  CONJUNCTION WITH THE FEE LAND TAKEN AND GIVE TO THE FEE LAND SUCH

  VALUE AS, IN YOUR JUDGMENT, ACCORDING TO THE EVIDENCE, SHOULD BE

  GIVEN ON ACCOUNT OF SUCH AVAILABILITY AND ACCESSIBILITY OF THE

  PERMIT AND LEASED LAND, IF ANY.  YOU SHOULD ALSO CONSIDER THE

  POSSIBILITY THAT THE PERMITS ON THE UNITED STATES LAND COULD BE

  WITHDRAWN AT ANY TIME WITHOUT CONSTITUTIONAL OBLIGATION TO PAY

  COMPENSATION THEREFOR AND DETERMINE THE EFFECT YOU FEEL SUCH

  POSSIBILITY, ACCORDING TO THE EVIDENCE, WOULD HAVE UPON THE VALUE

 OF THE FEE LAND."  APP. 26-27. 

I HAVE REPRODUCED THIS EXTENSIVE EXCERPT TO UNDERLINE THE CAREFUL
MANNER IN WHICH THE CONDEMNATION JURY WAS INSTRUCTED.  CONTRARY TO THE
IMPLICATION IN THE GOVERNMENT'S FRAMING OF THE QUESTION IN THIS CASE,
/2/ THE JURY WAS NOW ALLOWED TO INCLUDE "THE VALUE OF REVOCABLE GRAZING
PERMITS."  THE INSTRUCTION EXPRESSLY STATED THAT "SUCH PERMITS ARE MERE
LICENSES WHICH MAY BE REVOKED AND ARE NOT COMPENSABLE AS SUCH."  THE
EMPHASIS OF THE INSTRUCTION WAS ON THE LOCATION OF THE FEE LAND, WITH
THE RESULTING "AVAILABILITY AND ACCESSIBILITY" OF THE ADJACENT PUBLIC
GRAZING LAND.  I FIND THE INSTRUCTION TO BE AN APPROPRIATE STATEMENT OF
THE APPLICABLE PRINCIPLES OF JUST COMPENSATION. 

THE OPINION OF THE COURT RECOGNIZES THAT THE JUST COMPESNATION
REQUIRED BY THE FIFTH AMENDMENT WHEN THE GOVERNMENT EXERCISES ITS POWER
OF EMINENT DOMAIN IS ORDINARILY THE MARKET VALUE OF THE PROPERTY
TAKEN.  UNITED STATES V. MILLER, 317 U.S. 369, 374 (1943).  IT IS
COMMONPLACE, IN DETERMINING MARKET VALUE-- WHETHER IN CONDEMNATION OR
IN PRIVATE TRANSACTIONS-- TO CONSIDER SUCH ELEMENTS OF VALUE AS DERIVE
FROM THE LOCATION OF THE LAND.  BUT TODAY THE COURT ENUNCIATES AN
EXCEPTION TO THESE RECOGNIZED PRINCIPLES WHERE THE VALVE OF THE LAND TO
BE CONDEMNED MAY BE ENHANCED BY ITS LOCATION IN RELATION TO GOVERNMENT
OWNED PROPERTY.  THE COURT RELIES ON TWO LINES OF CASES WHICH, INDEED,
ARE SAID TO GO FAR TOWARD ESTABLISHING 

     "THE GENERAL PRINCIPLE THAT THE GOVERNMENT AS CONDEMNOR MAY
NOT

  BE REQUIRED TO COMPENSATE A CONDEMNEE FOR ELEMENTS OF VALUE THAT

  THE GOVERNMENT HAS CREATED, OR THAT IT MIGHT HAVE DESTROYED UNDER

  THE EXERCISE OF GOVERNMENTAL AUTHORITY OTHER THAN THE POWER OF

  EMINENT DOMAIN."  ANTE, AT 492. 

APPLYING THIS NEW PRINCIPLE TO THE PRESENT CASE, THE COURT NOW HOLDS
THAT SINCE THE GOVERNMENT "CREATED" AN ELEMENT OF VALUE BY OWNING
GRAZING LAND AND MAKING IT AVAILABLE UNDER THE TAYLOR GRAZING ACT, AND
SINCE IT HAS THE POWER TO "DESTROY" THIS ELEMENT OF VALUE BY BARRING
RESPONDENTS AND OTHERS FROM THE LAND, THE CONDEMNATION JURY MUST IGNORE
THE FACT THAT RESPONDENTS' LAND IS ADJACENT TO PUBLIC LAND.  UNDER THIS
FORMULATION, IT IS QUITE IMMATERIAL THAT THE GRAZING LAND REMAINS
SUBSTANTIALLY INTACT, AND THAT THE GOVERNMENT HAS TAKEN NO ACTION-- AND
NONE IS SHOWN TO BE CONTEMPLATED IN THE RECORD-- TO CONVERT SUCH LAND
TO SOME OTHER USE.  THE TEST IS NOT WHETHER THE GOVERNMENT HAS IN FACT
PUT ITS PROPERTY TO SOME OTHER USE OR REMOVED IT ENTIRELY; RATHER, IT
IS QUITE SIMPLY WHETHER THE GOVERNMENT HAS THE POWER TO DO THIS. 

NEITHER OF THE LINES OF CASES ON WHICH THE COURT RELIES SEEMS
APPOSITE.  THE FIRST INCLUDES UNITED STATES V. MILLER, SUPRA, IN WHICH
THE COURT HELD THAT THE GOVERNMENT NEED NOT PAY FOR AN INCREASE IN
VALUE OCCASIONED BY THE VERY PROJECT FOR WHICH THE LAND WAS CONDEMNED,
AND UNITED STATES V. CORS, 337 U.S. 325 (1949), IN WHICH THE COURT HELD
THAT IN CONDEMNING TUGBOATS DURING WARTIME THE GOVERNMENT NEED NOT
OFFER COMPENSATION FOR AN INCREASE IN VALUE ATTRIBUTABLE TO ITS OWN
EXTRAORDINARY WARTIME DEMAND FOR SUCH CRAFT.  THESE CASES SUPPORT ONLY
THE MODEST GENERALIZATION THAT COMPENSATION NEED NOT BE AFFORDED FOR AN
INCREASE IN MARKET VALUE STEMMING FROM THE VERY GOVERNMENT UNDERTAKING
WHICH LED TO THE CONDEMNATION. 

THE OTHER CASES ON WHICH THE COURT RELIES, UNITED STATES V. RANDS,
389 U.S. 121 (1967), AND UNITED STATES V. TWIN CITY POWER CO., 350 U.S.
222 (1956), DEAL WITH THE CONDEMNATION OF LANDS ADJACENT TO NAVIGABLE
WATERS.  IN RANDS, THE CONDEMNEE OWNED LAND ON THE COLUMBIA RIVER WHICH
THE UNITED STATES CONDEMNED "IN CONNECTION WITH THE JOHN DAY LOCK AND
DAM PROJECT, AUTHORIZED BY CONGRESS AS PART OF A COMPREHENSIVE PLAN FOR
THE DEVELOPMENT OF THE COLUMBIA RIVER."  389 U.S., AT 122.  RELYING ON
THE "UNIQUE POSITION" OF THE GOVERNMENT "IN CONNECTION WITH NAVIGABLE
WATERS," IBID., THE COURT HELD THAT NO SPECIAL ELEMENT OF VALUE COULD
BE ACCORDED THE LAND BY VIRTUE OF ITS POSSIBLE USE AS A PORT.  IN TWIN
CITY, THE CONDEMNEE WAS HOLDING LAND ON THE SAVANNAH RIVER AS A
POTENTIAL HYDROELECTRIC POWERSITE.  THE GOVERNMENT CONDEMNED THE LAND
AS PART OF A MAJOR FLOOD CONTROL, NAVIGATION, AND HYDROELECTRIC
PROJECT.  BY A BARE MAJORITY VOTE, THE COURT HELD THAT THE CONDEMNEE
WAS NOT ENTITLED TO THE "SPECIAL WATER-RIGHTS VALUE" OF THE LAND AS A
POTENTIAL POWERSITE, DISTINGUISHING OTHER CASES WITH THE COMMENT: 

     "WE HAVE A DIFFERENT SITUATION HERE, ONE WHERE THE UNITED

  STATES DISPLACES ALL COMPETING INTERESTS AND APPROPRIATES THE

ENTIRE FLOW OF THE RIVER . . . . "  350 U.S., AT 225. 

THE WATER RIGHTS CASES MAY BE SUBJECT TO VARYING INTERPRETATIONS,
BUT IT IS IMPORTANT TO REMEMBER WHEN INTERPRETING THEM THAT THEY CUT
SHARPLY AGAINST THE GRAIN OF THE FUNDAMENTAL NOTION OF JUST
COMPENSATION, THAT A PERSON FROM WHOM THE GOVERNMENT TAKES LAND IS
ENTITLED TO THE MARKET VALUE, INCLUDING THE LOCATION VALUE, OF THE
LAND.  THEY COULD WELL BE CONFINED TO CASES INVOLVING THE GOVERNMENT'S
"UNIQUE POSITION" WITH RESPECT TO "NAVIGABLE WATERS."  /3/  AT MOST,
THESE CASES EATABLISH A PRINCIPLE NO BROADER THAN THAT THE GOVERNMENT
NEED NOT COMPENSATE FOR LOCATION VALUE ATTRIBUTABLE TO THE PROXIMITY OF
GOVERNMENT PROPERTY UTILIZED IN THE SAME PROJECT.  IN RANDS, AS IN TWIN
CITY, THE RIVER ADJACENT TO THE PROPERTY CONDEMNED WAS THE FOCAL POINT
OF THE DEVELOPMENT PROJECT WHICH LED TO THE CONDEMNATION.  THE
GOVERNMENT SIMPLY DECIDED TO PUT THE RIVER TO A NEW USE, AND IN
CONNECTION WITH THAT NEW USE CONDEMNED ADJACENT LAND. 

TO UNDERSTAND WHY COMPENSATION IS NOT REQUIRED IN SUCH CASES, IT IS
IMPORTANT TO DISTINGUISH THE GOVERNMENT'S ROLE AS CONDEMNOR FROM ITS
ROLE AS PROPERTY OWNER.  WHILE AS CONDEMNOR THE GOVERNMENT MUST PAY
MARKET VALUE, AS PROPERTY OWNER IT MAY CHANGE THE USE OF ITS PROPERTY
AS IF IT WERE A PRIVATE PARTY, WITHOUT PAYING COMPENSATION FOR THE LOSS
IN VALUE SUFFERED BY NEIGHBORING LAND. 

WHEN THE GOVERNMENT CONDEMNS ADJOINING PARCELS OF PRIVATELY OWNED
LAND FOR THE SAME PROJECT, IT MAY NOT TAKE ADVANTAGE OF A DROP IN
MARKET VALUE OF ONE PARCEL RESULTING FROM THE DECISION TO CONDEMN
ANOTHER.  WHEN, HOWEVER, AS IN RANDS AND TWIN CITY, A PROJECT
ENCOMPASSES NOT ONLY PARCELS OF PRIVATE LAND, BUT ALSO THE PUBLIC
PROPERTY WHICH ENHANCES THE VALUE OF THE PRIVATE LAND, A MORE DIFFICULT
QUESTION IS PRESENTED.  IN EACH OF THOSE CASES, THE GOVERNMENT HELD A
DOMINANT SERVITUDE OVER THE FLOW OF A RIVER, AND IT CONDEMNED ADJACENT
PRIVATE LANDS IN CONNECTION WITH A DECISION TO EXERCISE ITS SERVITUDE. 
ARGUABLY, THE MEASURE OF COMPENSATION FOR THE TAKING OF THE PRIVATE
LANDS SHOULD HAVE INCLUDED THE VALUE OF THE RIPARIAN LOCATION
UNAFFECTED BY THE GOVERNMENT'S DECISION TO EXERCISE ITS OWN RIGHTS IN
THE RIVER.  BUT THIS RESULT WOULD HAVE IMPINGED ON THE GOVERNMENT'S
RIGHT TO USE THE RIVER BY RAISING THE COST OF ANY NEW USE WHICH
REQUIRED THE CONDEMNATION OF PRIVATE LAND. 

ACCORDINGLY, IN THOSE CASES THE COURT EXCLUDED EVIDENCE OF RIPARIAN
LOCATION VALUE SINCE THE GOVERNMENT WAS EXERCISING ITS LAWFUL POWER TO
APPROPRIATE "THE ENTIRE FLOW OF THE RIVER." 

     "THE PROPER EXERCISE OF THIS POWER (OVER NAVIGABLE WATERS) IS

NOT AN INVASION OF ANY PRIVATE PROPERTY RIGHTS IN THE STREAM OR

  THE LANDS UNDERLYING IT, FOR THE DAMAGE SUSTAINED DOES NOT RESULT

  FROM TAKING PROPERTY FROM RIPARIAN OWNERS WITHIN THE MEANING OF

  THE FIFTH AMENDMENT BUT FROM THE LAWFUL EXERCISE OF A POWER TO

  WHICH THE INTERESTS OF RIPARIAN OWNERS HAVE ALWAYS BEEN

  SUBJECT."  UNITED STATES V. RANDS, 389 U.S., AT 123. 

IN ANY EVENT, THE PRESENT CASE IS QUITE DIFFERENT.  RESPONDENTS'
LANDS WERE CONDEMNED NOT BECAUSE THE GOVERNMENT AS PROPERTY OWNER
DECIDED TO PUT ITS GRAZING LAND TO SOME OTHER USE AND NEEDED ADDITIONAL
LAND, BUT RATHER BECAUSE THE GOVERNMENT WANTED RESPONDENTS' LAND FOR A
PROJECT WHICH LEFT THE GRAZING LAND SUBSTANTIALLY INTACT AND
AVAILABLE.  /4/ 

THE GOVERNMENT'S ROLE HERE IS NOT AN AMBIGUOUS ONE-- IT IS SIMPLY A
CONDEMNOR OF PRIVATE LAND WHICH HAPPENS TO ADJOIN PUBLIC LAND. 
GOVERNMENT NEED NOT PAY LOCATION VALUE IN THIS CASE, WHAT ARE THE
LIMITS UPON THE PRINCIPLE TODAY ANNOUNCED?  WILL THE GOVERNMENT BE
RELIEVED FROM PAYING LOCATION VALUE WHENEVER IT CONDEMNS PRIVATE
PROPERTY ADJACENT TO OR FAVORABLY LOCATED WITH RESPECT TO GOVERNMENT
PROPERTY?  /5/  DOES THE PRINCIPLE APPLY, FOR EXAMPLE, TO THE TAKING OF
A GASOLINE STATION AT AN INTERCHANGE OF A FEDERAL HIGHWAY, OR TO THE
TAKING OF A FARM WHICH IN PRIVATE HANDS COULD CONTINUE TO BE IRRIGATED
WITH WATER FROM A FEDERAL RESERVOIR?  THE MAJORITY PROPOSES TO
DISTINGUISH SUCH CASES WITH THE "WORKING RULE" THAT 

     "THERE IS A SIGNIFICANT DIFFERENCE BETWEEN THE VALUE ADDED TO

  PROPERTY BY A COMPLETED PUBLIC WORKS PROJECT, FOR WHICH THE

  GOVERNMENT MUST PAY, AND THE VALUE ADDED TO FEE LANDS BY A

REVOCABLE PERMIT AUTHORIZING THE USE OF NEIGHBORING LANDS WHICH

  THE GOVERNMENT OWNS." 

ANTE, AT 492. 

THE COURT CAN HARDLY BE DRAWING A DISTINCTION BETWEEN GOVERNMENT
OWNED "COMPLETED PUBLIC WORKS" AND GOVERNMENT-OWNED PARKS AND GRAZING
LANDS IN THEIR NATURAL STATE.  THE "WORKING RULE" AS ARTICULATED CAN,
THEREFORE, ONLY MEAN THAT THE RESPONDENTS' REVOCABLE PERMIT TO USE THE
NEIGHBORING LANDS IS REGARDED BY THE COURT AS THE DISTINGUISHING
ELEMENT.  THIS IS AN ACCEPTANCE OF THE GOVERNMENT'S ARGUMENT THAT THE
ADDED VALUE DERIVES FROM THE PERMIT AND NOT FROM THE FAVORABLE LOCATION
WITH RESPECT TO THE GRAZING LAND.  /6/  THE ANSWER TO THIS, NOT
ADDRESSED EITHER BY THE GOVERNMENT OR THE COURT, IS THAT THE FAVORABLE
LOCATION IS THE CENTRAL FACT.  EVEN IF NO PERMIT HAD BEEN ISSUED TO
THESE RESPONDENTS, THEIR THREE TRACTS OF LAND-- LARGELY SURROUNDED BY
THE GRAZING LAND-- WERE STRATEGICALLY LOCATED AND LOGICAL BENEFICIARIES
OF THE TAYLOR GRAZING ACT.  IN DETERMINING THE MARKET VALUE OF
RESPONDENTS' LAND, SURELY THIS LOCATION-- WHETHER OR NOT A PERMIT HAD
BEEN ISSUED /7/  -- WOULD ENTER INTO ANY RATIONAL ESTIMATE OF VALUE. 
THIS IS PRECISELY THE RATIONALE OF THE DISTRICT COURT'S JURY
INSTRUCTION, WHICH CAREFULLY DISTINGUISHED BETWEEN THE REVOCABLE
PERMITS "NOT COMPENSABLE AS SUCH" AND THE "AVAILABILITY AND
ACCESSIBILITY" OF THE GRAZING LAND.  IT IS THIS DISTINCTION WHICH THE
COURT'S OPINION SIMPLY IGNORES. 

FINALLY, I DO NOT THINK THE COURT'S DEVIATION FROM THE MARKET-VALUE
RULE CAN BE JUSTIFIED BY INVOCATION OF LONG-ESTABLISHED "BASIC
EQUITABLE PRINCIPLES OF FAIRNESS."  ANTE, AT 490.  IT HARDLY SERVES THE
PRINCIPLES OF FAIRNESS AS THEY HAVE BEEN UNDERSTOOD IN THE LAW OF JUST
COMPENSATION TO DISREGARD WHAT RESPONDENTS COULD HAVE OBTAINED FOR
THEIR LAND ON OPEN MARKET IN FAVOR OF ITS VALUE ARTIFICIALLY DENUDED OF
ITS SURROUNDINGS.  /8/ 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  IN ADDITION, RESPONDENTS GRAZED THEIR CATTLE ON 12,207 ACRES OF
LAND LEASED FROM THE STATE, BUT THIS LAND IS NOT RELEVANT TO THE
CONTROVERSY NOW BEFORE US. 

/2/  AS STATED BY THE GOVERNMENT, THE QUESTION PRESENTED BY THIS
CASE IS: 

"WHETHER THE OWNER OF LAND TAKEN BY THE UNITED STATES IS ENTITLED TO
HAVE INCLUDED IN THE MEASURE OF HIS COMPENSATION THE VALUE OF REVOCABLE
GRAZING PERMITS ON ADJOINING FEDERAL LAND ISSUED UNDER AN ACT OF
CONGRESS WHICH SPECIFIES THAT SUCH GRAZING PERMITS CREATE NO 'RIGHT,
TITLE, INTEREST, OR ESTATE IN OR TO THE LANDS.'"  BRIEF FOR UNITED
STATES 2.  MORE ACCURATE, IN LIGHT OF THE DISTRICT COURT'S INSTRUCTION,
IS RESPONDENTS' STATEMENT OF THE QUESTION: 

"WHETHER, IN DETERMINING THE COMPENSATION DUE AN OWNER OF LAND TAKEN
BY THE UNITED STATES, THE JURY MAY CONSIDER THE AVAILABILITY AND
ACCESSIBILITY OF PUBLIC LANDS, SO LONG AS CONSIDERATION IS ALSO GIVEN
THE POSSIBILITY THAT THE GRAZING PERMITS ON THE PUBLIC LAND MAY BE
WITHDRAWN."  BRIEF FOR RESPONDENTS 1-2. 

/3/  ARGUABLY, THEN, THESE ARE WATER RIGHTS CASES AND NOTHING MORE. 
SUITABLE SITES FOR HYDROELECTRIC PLANTS OR PORT FACILITIES ARE
IMPORTANT NATURAL RESOURCES, HIGHLY VALUABLE BUT LIMITED IN NUMBER,
OVER WHICH THE GOVERNMENT HAS PECULIAR HISTORICAL AND CONSTITUTIONAL
SWAY.  ON THIS VIEW, WHILE THE GOVERNMENT HAS EQUAL AUTHORITY OVER
TAYLOR GRAZING ACT LAND AND OTHER GOVERNMENT-OWNED PROPERTY, PROXIMITY
TO SUCH PROPERTY MAY APPROPRIATELY BE TREATED DIFFERENTLY FROM
PROXIMITY TO NAVIGABLE WATER FOR THE PURPOSE OF MEASURING JUST
COMPENSATION.  THIS WAS ONE OF THE BASES ON WHICH THE COURT BELOW
DISTINGUISHED THE WATER CASES FROM THE PRESENT CASE, 442 F.2D 504, 507
(CA9 1971), AND IN MY VIEW IS AN ALTERNATIVE GROUND FOR AFFIRMING THE
JUDGMENT BELOW.     /4/  IN TWO CASES DECIDED TOGETHER INVOLVING THE
CONDEMNATION OF RANCH LAND USED IN CONNECTION WITH TAYLOR GRAZING ACT
LAND, A PANEL OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT FOLLOWED A
SIMILAR ANALYSIS IN AWARDING LOCATION VALUE IN ONE CASE, UNITED STATES
V. JARAMILLO, 190 F.2D 300 (1951), BUT NOT IN THE OTHER, UNITED STATES
V. COX, 190 F.2D 293 (1951).  IN JARAMILLO, THE COURT STATES: 

"BY APPROPRIATE CONDEMNATION PROCEEDINGS . . . THE GOVERNMENT TOOK
APPELLEE'S FEE AND LEASED LAND AS A PART OF A TOTAL OF 20,061 ACRES, TO
BE USED FOR WAR PURPOSES.  BUT, UNLIKE THE COX AND BEASLEY CASES, THE
PROJECT DID NOT CONTEMPLATE THE ACQUISITION OF THE FOREST LAND COVERED
BY APPELLEE'S PERMIT."  ID., AT 301. 

/5/  IF SO, THE CONTRAST BETWEEN CONDEMNATION PROCEEDINGS AND OTHER
TRANSACTIONS WOULD BE STARK:  THE ENHANCEMENT OF VALUE STEMMING FROM
PUBLIC HIGHWAYS, PARKS, BUILDINGS, AND RECREATIONAL FACILITIES IS
COMMONLY RECOGNIZED FOR PURPOSES OF TAXATION, MORTGAGING, AND PRIVATE
SALES. 

/6/  SEE N. 2, SUPRA. 

/7/  EVEN IF, THE GOVERNMENT'S ARGUMENT SUGGESTS IS POSSIBLE, THE
PERMITS HELD BY RESPONDENTS HAD BEEN WITHDRAWN AS A PRELUDE TO THIS
CONDEMNATION, THE TAYLOR GRAZING ACT CONTEMPLATES THEIR ISSUANCE IN THE
PUBLIC INTEREST AND THE RECORD DISCLOSES NO OTHER PRIVATE LANDOWNERS AS
FAVORABLY LOCATED TO QUALIFY FOR PERMITS AS THESE RESPONDENTS. 

/8/  RESPONDENTS' WITNESSES VALUED THE LAND AT FIGURES UP TO NEARLY
A MILLION DOLLARS, WHILE THE GOVERNMENT'S EXPERT WITNESS ASSIGNED IT A
VALUE OF $136,500.  IN WHAT WAS MANIFESTLY A COMPROMISE, THE JURY
AWARDED $350,000. 

HARRY R. SACHSE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
FRIZZELL, RAYMOND N. ZAGONE, AND JACQUES B. GELIN. 

FRANK HAZE BURCH ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS DANIEL CRACCHIOLO. 

FRANCIS GALLAGHER FILED A BRIEF FOR THE MONTANA PUBLIC LANDS COUNCIL
AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :











ROBINSON V. NEIL, 409 U.S. 505 


       ROBINSON V. NEIL, WARDEN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 71-6272.  ARGUED DECEMBER 6, 1972-- DECIDED JANUARY 16,

           1973 


WALLER V. FLORIDA, 397 U.S. 387, WHICH BARS ON THE GROUND OF DOUBLE
JEOPARDY TWO PROSECUTIONS, STATE AND MUNICIPAL, BASED ON THE SAME ACT
OR OFFENSE, IS FULLY RETROACTIVE.  PP. 506-511. 

452 F.2D 370, VACATED AND REMANDED. 

REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 
BRENNAN, J., FILED A SEPARATE OPINION, IN WHICH DOUGLAS AND MARSHALL,
JJ., JOINED, POST, P. 511. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

IN 1962 PETITIONER WAS TRIED AND CONVICTED IN THE CHATTANOOGA
MUNICIPAL COURT OF THREE COUNTS OF ASSAULT AND BATTERY IN VIOLATION OF
A CITY ORDINANCE.  HE WAS FINED $50 AND COSTS ON EACH COUNT.  HE WAS
LATER INDICTED BY THE GRAND JURY OF HAMILTON COUNTY, TENNESSEE, WHICH,
OUT OF THE SAME CIRCUMSTANCES GIVING RISE TO THE MUNICIPAL TRIAL,
CHARGED HIM WITH THREE OFFENSES OF ASSAULT WITH INTENT TO COMMIT MURDER
IN VIOLATION OF STATE LAW.  THE PETITIONER PLEADED GUILTY TO THE STATE
CHARGES AND RECEIVED CONSECUTIVE SENTENCES OF THREE TO 10 YEARS FOR TWO
OFFENSES AND THREE TO FIVE YEARS FOR THE THIRD OFFENSE.  HE IS
PRESENTLY IN THE CUSTODY OF THE RESPONDENT WARDEN OF THE TENNESSEE
STATE PENITENTIARY. 

IN 1966 THE PETITIONER UNSUCCESSFULLY SOUGHT HABEAS CORPUS RELIEF IN
STATE COURTS ON THE GROUND THAT THE SECOND CONVICTIONS FOR STATE
OFFENSES VIOLATED HIS FEDERAL CONSTITUTIONAL GUARANTEE AGAINST TWICE
BEING PLACED IN JEOPARDY FOR THE SAME OFFENSE.  IN 1967 FEDERAL COURTS
DENIED A SIMILAR REQUEST FOR HABEAS CORPUS RELIEF.  ROBINSON V.
HENDERSON, 268 F.SUPP.  349 (ED TENN. 1967), AFF'D, 391 F.2D 933 (CA6
1968).  IN 1970 THE PETITIONER RENEWED HIS CLAIMS FOR HABEAS RELIEF,
BASING HIS ARGUMENTS ON THIS COURG'S INTERVENING DECISIONS IN BENTON V.
MARYLAND, 395 U.S. 784 (1969), AND WALLER V. FLORIDA, 397 U.S. 387
(1970).  HOLDING THAT WALLER WAS TO BE ACCORDED RETROSPECTIVE EFFECT,
THE DISTRICT COURT GRANTED THE PETITIONER HABEAS CORPUS RELIEF.  320
F.SUPP.  894 (ED TENN. 1971).  THE SIXTH CIRCUIT REVERSED (452 F.2D 370
(1971)) AND WE GRANTED CERTIORARI TO DECIDE THE RETROACTIVITY OF WALLER
V. FLORIDA.  406 U.S. 916 (1972). 

THE FIFTH AMENDMENT'S GUARANTEE THAT NO PERSON BE TWICE PUT IN
JEOPARDY FOR THE SAME OFFENSE WAS FIRST HELD BINDING ON THE STATES IN
BENTON V. MARYLAND, SUPRA.  OUR SUBSEQUENT DECISION IN WALLER V.
FLORIDA, SUPRA, HELD THAT THE SCOPE OF THIS GUARANTEE PRECLUDED THE
RECOGNITION OF THE "DUAL SOVEREIGNTY" DOCTRINE WITH RESPECT TO SEPARATE
STATE AND MUNICIPAL PROSECUTIONS.  WALLER INVOLVED THE THEFT OF A MURAL
FROM THE CITY HALL OF ST. PETERSBURG, FLORIDA.  THE PETITIONER THERE
WAS FIRST TRIED AND CONVICTED OF VIOLATING CITY ORDINANCES WITH RESPECT
TO THE DESTRUCTION OF CITY PROPERTY AND BREACH OF THE PEACE. 
SUBSEQUENTLY, HE WAS CONVICTED OF GRAND LARCENY IN VIOLATION OF STATE
LAW INVOLVING THE SAME THEFT.  THE COURT STATED: 

     "THE FLORIDA COURTS WERE IN ERROR TO THE EXTENT OF HOLDING
THAT-- 

     "'EVEN IF A PERSON HAS BEEN TRIED IN A MUNICIPAL COURT FOR THE

  IDENTICAL OFFENSE WITH WHICH HE IS CHARGED IN A STATE COURT, THIS

  WOULD NOT BE A BAR TO THE PROSECUTION OF SUCH PERSON IN THE

  PROPER STATE COURT.'"  397 U.S., AT 395. 

PRIOR TO THIS COURT'S 1965 DECISION IN LINKLETTER V. WALKER, 381
U.S. 618, THERE WOULD HAVE BEEN LESS DOUBT CONCERNING THE RETROACTIVITY
OF THE WALLER HOLDING.  FOR, UNTIL THAT TIME, BOTH THE COMMON LAW AND
OUR OWN DECISIONS RECOGNIZED A GENERAL RULE OF RETROSPECTIVE EFFECT FOR
THE CONSTITUTIONAL DECISIONS OF THIS COURT, E.G., NORTON V. SHELBY
COUNTY, 118 U.S. 425, 442 (1886), SUBJECT TO LIMITED EXCEPTIONS OF A
NATURE SUCH AS THOSE STATED IN CHICOG COUNTY DRAINAGE DISTRICT V.
BAXTER STATE BANK, 308 U.S. 371 (1940).  IN LINKLETTER, THE COURT,
DECLARING THAT IT WAS CHARTING NEW GROUND (381 U.S., AT 628 AND N. 13),
HELD THAT WITH RESPECT TO NEW CONSTITUIONAL INTERPRETATIONS INVOLVING
CRIMINAL RIGHTS "THE CONSTITUTION NEITHER PROHIBITS NOR REQUIRES
RETROSPECTIVE EFFECT."  ID., AT 629.  LINKLETTER AND SUCCEEDING CASES
ESTABLISHED A SET OF FACTORS FOR DETERMINING WHICH CONSTITUTIONAL RULES
WERE TO BE ACCORDED RETROSPECTIVE AND WHICH PROSPECTIVE EFFECT ONLY. 
/1/  THE DISTRICT COURT AND THE SIXTH CIRCUIT IN THIS CASE APPLIED THE
FACTORS ENUNCIATED BY THESE CASES TO THE WALLER HOLDING.  THE SIXTH
CIRCUIT HELD, CONTRARY TO THE CONCLUSION OF THE DISTRICT COURT, THAT
WALLER IS NOT TO BE APPLIED RETROACTIVELY. 

WE DO NOT BELIEVE THAT THIS CASE READILY LENDS ITSELF TO THE
ANALYSIS ESTABLISHED IN LINKLETTER.  CERTAINLY, THERE IS NOTHING IN
LINKLETTER OR THOSE CASES FOLLOWING IT TO INDICATE THAT ALL RULES AND
CONSTITUTIONAL INTERPRETATIONS ARISING UNDER THE FIRST EIGHT AMENDMENTS
MUST BE SUBJECTED TO THE ANALYSIS THERE ENUNCIATED.  LINKLETTER ITSELF
ANNOUNCED AN EXCEPTION TO THE GENERAL RULE OF RETROACTIVITY IN A
DECISION ANNOUNCING THAT THE EXCLUSIONARY RULE OF MAPP V. OHIO, 367
U.S. 643 (1961), WOULD BE GIVEN PROSPECTIVE EFFECT ONLY.  LINKLETTER,
AND THE OTHER CASES RELIED UPON BY THE SIXTH CIRCUIT, DEALT WITH THOSE
CONSTITUTIONAL INTERPRETATIONS BEARING ON THE USE OF EVIDENCE OR ON A
PARTICULAR MODE OF TRIAL.  THOSE PROCEDURAL RIGHTS AND METHODS OF
CONDUCTING TRIALS, HOWEVER, DO NOT ENCOMPASS ALL OF THE RIGHTS FOUND IN
THE FIRST EIGHT AMENDMENTS.  GUARANTEES THAT DO NOT REALTE TO THESE
PROCEDURAL RULES CANNOT, FOR RETROACTIVITY PURPOSES, BE LUMPED
CONVENIENTLY TOGETHER IN TERMS OF ANALYSIS.  FOR THE PURPOSE AND EFFECT
OF THE VARIOUS CONSTITUTIONAL GUARANTEES VARY SUFFICIENTLY AMONG
THEMSELVES SO AS TO AFFECT THE NECESSITY FOR PROSPECTIVE RATHER THAN
RETROSPECTIVE APPLICATION. 

LINKLETTER INDICATED, FOR INSTANCE, THAT ONLY THOSE PROCEDURAL RULES
AFFECTING "THE VERY INTEGRITY OF THE FACT-FINDING PROCESS" WOULD BE
GIVEN RETROSPECTIVE EFFECT.  381 U.S., AT 369.  IN TERMS OF SOME
NONPROCEDURAL GUARANTEES, THIS TEST IS SIMPLY NOT APPROPRIATE.  IN
FURMAN V. GEORGIA, 408 U.S. 238 (1972), FOR EXAMPLE, THIS COURT HELD
THAT IN THE SITUATION THERE PRESENTED IMPOSITION OF THE DEATH PENALTY
WAS NOT CONSTITUTIONALLY PERMISSIBLE.  YET, WHILE THIS HOLDING DOES NOT
AFFECT THE INTEGRITY OF THE FACTFINDING PROCESS, WE HAVE NOT HESITATED
TO APPLY IT RETROSPECTIVELY WITHOUT REGARD TO WHETHER THE RULE MEETS
THE LINKLETTER CRITERIA.  E.G., WALKER V. GEORGIA, 408 U.S. 936. 

THE PROHIBITION AGAINST BEING PLACED IN DOUBLE JEOPARDY IS LIKEWISE
NOT READILY SUSCEPTIBLE OF ANALYSIS UNDER THE LINKLETTER LINE OF
CASES.  ALTHOUGH THE COURT HAS NOT HANDED DOWN A FULLY REASONED OPINION
OF THE RETROACTIVITY OF BENTON V. MARYLAND, IT HAS INDICATED THAT IT IS
RETROACTIVE WITHOUT EXAMINATION OF THE LINKLETTER CRITERIA.  NORTH
CAROLINA V. PEARCE, 395 U.S. 711 (1969); ASHE V. SWENSON, 397 U.S. 436,
437 N. 1 (1970).  THESE DECISIONS DO NOT DIRECTLY CONTROL THE QUESTION
OF WHETHER WALLER SHOULD BE GIVEN RETROSPECTIVE EFFECT BUT THEY BEAR
UPON ITS DISPOSITION. 

THE GUARANTEE AGAINST DOUBLE JEOPARDY IS SIGNIFICANTLY DIFFERENT
FROM PROCEDURAL GUARANTEES HELD IN THE LINKLETTER LINE OF CASES TO HAVE
PROSPECTIVE EFFECT ONLY.  WHILE THIS GUARANTEE, LIKE THE OTHERS, IS A
CONSTITUTIONAL RIGHT OF THE CRIMINAL DEFENDANT, ITS PRACTICAL RESULT IS
TO PREVENT A TRIAL FROM TAKING PLACE AT ALL, RATHER THAN TO PRESCRIBE
PROCEDURAL RULES THAT GOVERN THE CONDUCT OF A TRIAL.  A NUMBER OF THE
CONSTITUTIONAL RULES APPLIED PROSPECTIVELY ONLY UNDER THE LINKLETTER
CASES WERE FOUND NOT TO AFFECT THE BASIC FAIRNESS OF THE EARLIER TRIAL,
BUT TO HAVE BEEN DIRECTED INSTEAD TO COLLATERAL PURPOSES SUCH AS THE
DETERENCE OF UNLAWFUL POLICE CONDUCT, MAPP V. OHIO, SUPRA.  IN WALLER,
HOWEVER, THE COURT'S RULING WAS SQUARELY DIRECTED TO THE PREVENTION OF
THE SECOND TRIAL'S TAKING PLACE AT ALL, EVEN THOUGH IT MIGHT HAVE BEEN
CONDUCTED WITH A SCRUPULOUS REGARD FOR ALL OF THE CONSTITUTIONAL
PROCEDURAL RIGHTS OF THE DEFENDANT. 

WE WOULD NOT SUGGEST THAT THE DISTINCTION THAT WE DRAW IS AN
IRONCLAD ONE THAT WILL INVARIABLY RESULT IN THE EASY CLASSIFICATION OF
CASES IN ONE CATEGORY OR THE OTHER.  THE ELEMENT OF RELIANCE EMBODIED
IN THE LINKLETTER ANALYSIS WILL NOT BE WHOLLY ABSENT IN THE CASE OF
CONSTITUTIONAL DECISIONS NOT RELATED TO TRIAL PROCEDURE, AS INDEED THIS
CASE WHEN CONTRASTED WITH FURMAN ILLUSTRATES. 

IN FURMAN V. GEORGIA, SUPRA, OUR MANDATE WAS TAILORED SO AS TO DENY
TO THE STATE ONLY THE AUTHORITY TO IMPOSE A PUNISHMENT THAT WE HELD
UNCONSTITUTIONAL WITHOUT THE NECESSITY OF A REDETERMINATION OF THE
FACTUAL QUESTION OF WHETHER THE OFFENSE HAD IN FACT BEEN COMMITTED. 
THUS, THE PREJUDICE TO THE STATE RESULTING FROM THE NECESSITY OF AN
ENTIRELY NEW TRIAL BECAUSE OF PROCEDURES NEWLY FOUND TO BE
CONSTITUTIONALLY DEFECTIVE, WITH THE ATTENDANT DIFFICULTIES OF AGAIN
ASSEMBLING WITNESSES WHOSE MEMORIES WOULD OF NECESSITY BE DIMMER FOR
THE SECOND TRIAL THAN FOR THE FIRST, WAS NOT PRESENT.  THAT WHICH WAS
CONSTITUTIONALLY INVALID COULD BE ISOLATED AND EXCISED WITHOUT
REQUIRING THE STATE TO BEGIN THE ENTIRE FACTFINDING PROCESS ANEW. 

THE APPLICATION OF WALLER RETROSPECTIVELY MAY, ON THE OTHER HAND,
RESULT IN A FORM OF PREJUDICE TO THE STATE BECAUSE, IN RELIANCE UPON
THE "DUAL SOVEREIGNTY" ANALOGY, THE MUNICIPAL PROSECUTION MAY HAVE
OCCURRED FIRST AND THE SENTENCE ALREADY HAVE BEEN SERVED PRIOR TO THE
COMMENCEMENT OF THE STATE PROSECUTION.  IF THE OFFENSE INVOLVED WAS A
SERIOUS ONE UNDER STATE LAW, AS IT APPARENTLY WAS IN THIS CASE, THE
DEFENDANT MAY HAVE BEEN UNINTENTIONALLY ACCORDED A RELATIVELY PAINLESS
FORM OF IMMUNITY FROM THE STATE PROSECUTION.  BUT THE COURT'S OPINION
IN WALLER MAKES CLEAR THAT THE ANALOGY BETWEEN STATE AND MUNICIPAL
PROSECUTIONS, AND FEDERAL AND STATE PROSECUTIONS PERMITTED IN BARTKUS
V. ILLINOIS, 359 U.S. 121 (1959), HAD NEVER BEEN SANCTIONED BY THIS
COURT AND WAS NOT ANALYTICALLY SOUND.  SINCE THE ISSUE DID NOT ASSUME
FEDERAL CONSTITUTIONAL PROPROTIONS UNTIL AFTER BENTON V. MARYLAND HELD
THE DOUBLE JEOPARDY CLAUSE APPLICABLE TO THE STATES, THIS COURT HAD NOT
EARLIER HAD OCCASION TO SQUARELY PASS ON THE ISSUE.  BUT ITS DECISION
IN WALLER CANNOT BE SAID TO HAVE MARKED A DEPARTURE FROM PAST DECISIONS
OF THIS COURT.  THEREFORE, WHILE WALLER-TYPE CASES MAY INVOLVE A FORM
OF PRACTICAL PREJUDICE TO THE STATE OVER AND ABOVE THE REFUSAL TO
PERMIT THE TRIAL THAT THE STATE OVER AND ABOVE THE REFUSAL TO PERMIT
THE TRIAL THAT THE CONSTITUTION BARS, THE JUSTIFIABILITY OF THE STATE'S
RELIANCE ON LOWER COURT DECISIONS SUPPORTING THE DUAL SOVEREIGNTY
ANALOGY WAS A GOOD DEAL MORE DUBIOUS THAN THE JUSTIFICATION FOR
RELIANCE THAT HAS BEEN GIVEN WEIGHT IN OUR LINKLETTER LINE OF CASES. 
WE INTIMATE NO VIEW AS TO WHAT WEIGHT SHOULD BE ACCORDED TO RELIANCE BY
THE STATE THAT WAS JUSTIFIABLE UNDER THE LINKLETTER TEST IN DETERMINING
RETROACTIVITY OF A NON-PROCEDURAL CONSTITUTIONAL DECISION SUCH AS
WALLER. 

WE HOLD, THEREFORE, THAT OUR DECISION IN WALLER V. FLORIDA IS TO BE
ACCORDED FULL RETROACTIVE EFFECT.  WE REFRAIN FROM AN OUTRIGHT REVERSAL
OF THE JUDGMENT BELOW, HOWEVER, BECAUSE STATEMENTS OF COUNSEL AT ORAL
ARGUMENT RAISED THE ISSUE OF WHETHER THE STATE AND MUNICIPAL
PROSECUTIONS WERE ACTUALLY FOR THE SAME OFFENSE.  WE THEREFORE VACATE
THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE SO THAT
RESPONDENT MAY HAVE AN OPPORTUNITY TO PRESENT THIS ISSUE THERE OR IN
THE DISTRICT COURT. 

              IT IS SO ORDERED. 

/1/  SEE DESIST V. UNITED STATES, 394 U.S. 244 (1969), WHICH
CAREFULLY EXAMINED ALL OF THE CASES DECIDED SINCE LINKLETTER AND MORE
FULLY ENUNCIATED THE GUIDING CRITERIA OF THOSE CASES. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL CONCUR. 

ALTHOUGH I OTHERWISE JOIN THE OPINION OF THE COURT, I WOULD REVERSE
THE JUDGMENT OF THE COURT OF APPEALS OUTRIGHT.  I ADHERE TO MY VEIW
THAT, REGARDLESS OF THE SIMILARITY OF THE OFFENSES, THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT, WHICH IS APPLICABLE TO THE STATES
THROUGH THE FOURTEENTH AMENDMENT, BENTON V. MARYLAND, 395 U.S. 784
(1969), REQUIRES THE PROSECUTION, EXCEPT IN MOST LIMITED CIRCUMSTANCES
NOT PRESENT HERE, "TO JOIN AT ONE TRIAL ALL THE CHARGES AGAINST A
DEFENDANT THAT GROW OUT OF A SINGLE CRIMINAL ACT, OCCURRENCE, EPISODE,
OR TRANSACTION."  ASHE V. SWENSON, 397 U.S. 436, 453-454 (1970)
(BRENNAN, J., CONCURRING); SEE GRUBB V. OKLAHOMA, POST, P. 1017 (1972)
(BRENNAN, J., DISSENTING); HARRIS V. WASHINGTON, 404 U.S. 55, 57 (1971)
(SEPARATE STATEMENT OF DOUGLAS, BRENNAN, AND MARSHALL, JJ.).  UNDER
THIS "SAME TRANSACTION" TEST, ALL CHARGES AGAINST PETITIONER SHOULD
HAVE BEEN BROUGHT IN A SINGLE PROSECUTION. 

JAMES D. ROBINSON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS JERRY H. SUMMERS. 

BART C. DURHAM III, ASSISTANT ATTORNEY GENERAL OF TENNESSEE, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE DAVID M. PACK,
ATTORNEY GENERAL, AND WILLIAM C. KOCH, JR., ASSISTANT ATTORNEY
GENERAL. 
..END :














RICHARDSON V. MORRIS, 409 U.S. 464 


       RICHARDSON, SECRETARY OF HEALTH, EDUCATION, AND WELFARE V.

           MORRIS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA

        NO. 72-603.  DECIDED JANUARY 15, 1973 


DISTRICT COURT WHICH GRANTED APPELLEES AN INJUNCTION AGAINST
ENFORCEMENT OF SEC. 203(A) OF THE SOCIAL SECURITY ACT, ERRED IN
ASSUMING JURISDICTION UNDER TUCKER ACT, WHICH DOES NOT AUTHORIZE SUITS
FOR EQUITABLE RELIEF. 

346 F.SUPP.  494, VACATED AND REMANDED. 

PER CURIAM. 

APPELLEES ARE ILLEGITIMATE CHILDREN ON WHOSE BEHALF A CLASS ACTION
WAS COMMENCED SEEKING TO ENJOIN ENFORCEMENT OF SEC. 203(A) OF THE
SOCIAL SECURITY ACT, 49 STAT. 623, AS AMENDED, 42 U.S.C. 403(A), ON THE
GROUND THAT THE PROVISION WAS UNCONSTITUTIONAL UNDER THIS COURT'S
DECISIONS IN WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164 (1972),
AND LEVY V. LOUISIANA, 391 U.S. 68 (1968).  THE DISTRICT COURT GRANTED
APPELLEES' REQUEST FOR DECLARATORY AND INJUNCTIVE RELIEF. 

ON THE MERITS, THIS APPEAL INVOLVES THE SAME ISSUES THAT WERE RAISED
IN DAVIS V. RICHARDSON, 342 F.SUPP.  588 (CONN.), AFF'D, POST, P. 1069,
AND GRIFFIN V. RICHARDSON, 346 F.SUPP.  1226 (MD.), AFF'D, POST, P.
1069.  UNLIKE THOSE CASES, HOWEVER, THE DISTRICT COURT HERE PURPORTED
TO PREDICATE ITS JURISDICTION ON THE TUCKER ACT, 28 U.S.C. 1346(A)(2). 
ASSUMING, ARGUENDO, THAT EXHAUSTION OF THE ADMINISTRATIVE REMEDIES
PROVIDED BY THE SOCIAL SECURITY ACT WAS NOT A PREREQUISITE TO
APPELLEES' ATTACK ON THE FACIAL CONSTITUTIONALITY OF SEC. 203(A), SEE
PUBLIC UTILITIES COMM'N OF CALIFORNIA V. UNITED STATES, 355 U.S. 534
(1958), WE NONETHELESS CONCLUDE THAT IT WAS ERROR FOR THE DISTRICT
COURT TO ASSUME JURISDICTION UNDER THE TUCKER ACT. 

THE TUCKER ACT PLAINLY GIVES DISTRICT COURTS JURISDICTION OVER
CLAIMS AGAINST THE UNITED STATES FOR MONEY DAMAGES OF LESS THAN $10,000
THAT ARE "FOUNDED . . . UPON THE CONSTITUTION."  /1/  BUT THE ACT HAS
LONG BEEN CONTRUED AS AUTHORIZING ONLY ACTIONS FOR MONEY JUDGMENTS AND
NOT SUITS FOR EQUITABLE RELIEF AGAINST THE UNITED STATES.  SEE UNITED
STATES V. JONES, 131 U.S. 1 (1889).  THE REASON FOR THE DISTINCTION
FLOWS FROM THE FACT THAT THE COURT OF CLAIMS HAS NO POWER TO GRANT
EQUITABLE RELIEF, SEE GLIDDEN CO. V. ZDANOK, 370 U.S. 530, 557 (1962)
(HARLAN, J., ANNOUNCING THE JUDGMENT OF THE COURT), AND THE
JURISDICTION OF THE DISTRICT COURTS UNDER THE ACT WAS EXPRESSLY MADE
"CONCURRENT WITH THE COURT OF CLAIMS."  SEE UNITED STATES V. SHERWOOD,
312 U.S. 584, 589-591 (1941); BATES MFG. CO. V. UNITED STATES, 303 U.S.
567, 570 (1938 ).  WHAT WAS SAID IN SHERWOOD, SUPRA, AT 591, APPLIES
HERE: 

   (THE TUCKER ACT DID NO MORE THAN AUTHORIZE THE DISTRICT COURT

  TO SIT AS A COURT OF CLAIMS AND . . . THE AUTHORITY THUS GIVEN TO

  ADJUDICATE CLAIMS AGAINST THE UNITED STATES DOES NOT EXTEND TO

  ANY SUIT WHICH COULD NOT BE MAINTAINED IN THE COURT OF CLAIMS." 

ALTHOUGH APPELLEES CONTEND THAT JURISDICTION WAS PROPERLY ASSERTED
UNDER VARIOUS ALTERNATIVE PROVISIONS OF THE JUDICIAL CODE, THE DISTRICT
COURT DID NOT PASS UPON THE APPLICABILITY OF THOSE OTHER PROVISIONS. 
ACCORDINGLY, APPELLEES' MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
IS GRANTED, THE JUDGMENT IS VACATED, AND THE CASE REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE ACT, IN PERTINENT PART, READS AS FOLLOWS: 

"(A) THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION,
CONCURRENT WITH THE COURT OF CLAIMS OF:

        .          .          . . 

"(2) ANY OTHER (EXCEPTING CERTAIN TAX CASES) CIVIL ACTION OR CLAIM
AGAINST THE UNITED STATES, NOT EXCEEDING $10,000 IN AMOUNT, FOUNDED
EITHER UPON THE CONSTITUTION, OR ANY ACT OF CONGRESS, OR ANY REGULATION
OF AN EXECUTIVE DEPARTMENT, OR UPON ANY EXPRESS OR IMPLIED CONTRACT
WITH THE UNITED STATES, OR FOR LIQUIDATED OR UNLIQUIDATED DAMAGES IN
CASES NOT SOUNDING IN TORT." 

THE ACT WAS PASSED IN 1887.  24 STAT. 505.  AS ENACTED, THE ACT READ
IN TERMS OF "(ALL CLAIMS" RATHER THAN "(ANY OTHER CIVIL ACTION OR
CLAIM."  APPELLEES SUGGEST THAT THE ADDED PHRASE WAS INTENDED TO
BROADEN THE SCOPE OF DISTRICT COURT JURISDICTION TO INCLUDE "ACTIONS"
FOR INJUNCTIONS AS WELL AS "CLAIMS" FOR MONETARY DAMAGES.  THE PHRASE,
HOWEVER, DID NOT APPEAR IN THE 1940 EDITION OF THE JUDICIAL CODE, 28
U.S.C. 41(20), AND APPEARS TO HAVE BEEN INSERTED DURING THE REVISION IN
1948, WITHOUT ANY SUGGESTION THAT THE CHANGE WAS TO AFFECT THE
WITH THE CONCURRENT JURISDICTION OF THE COURT OF CLAIMS CONTAINS NO
SUCH ADDITION.  SEE 28 U.S.C. 1491. 
..END :


















AMERICAN TRIAL LAWYERS V. N.J. SUPREME COURT, 409 U.S. 467 


       AMERICAN TRIAL LAWYERS ASSN., NEW JERSEY BRANCH, ET AL. V.

           NEW NEW JERSEY SUPREME COURT

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

      DISTRICT OF NEW JERSEY

        NO. 72-691.  DECIDED JANUARY 15, 1973 


IN ABSTAINING SO AS TO PERMIT A STATE COURT TO PASS ON AN ISSUE OF
STATE LAW, A DISTRICT COURT SHOULD RETAIN JURISDICTION PENDING THE
STATE PROCEEDING SO THAT APPELLANTS MAY PRESERVE THEIR RIGHT TO
LITIGATE THEIR FEDERAL CLAIMS IN FEDERAL COURTS AT THE CONCLUSION OF
THE STATE PROCEEDING. 

VACATED AND REMANDED. 

PER CURIAM. 

ON DECEMBER 21, 1971, THE SUPREME COURT OF NEW JERSEY ANNOUNCED THE
ADOPTION OF RULE 1:21-7, EFFECTIVE JANUARY 31, 1972, ESTABLISHING A
GRADUATED SCHEDULE OF MAXIMUM CONTINGENT FEES APPLICABLE TO TORT
LITIGATION CONDUCTED BY NEW JERSEY ATTORNEYS.  /1/  APPELLANTS,
REPRESENTING MEMBERS OF THE NEW JERSEY BAR, BROUGHT THIS ACTION TO
ENJOIN THE ENFORCEMENT OF THE RULES ON THE GROUNDS THAT THEY VIOLATE
SEVERAL PROVISIONS OF THE CONSTITUTION, INCLUDING THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.  THE TRIAL JUDGE
CONVENED A THREE-JUDGE COURT.  28 U.S.C. 2281.  /2/ 

AFTER HEARING ARGUMENT ON THE MERITS, THE DISTRICT COURT POINTED OUT
THAT: 

     "(ESSENTIALLY THE CASE POSES A DISPUTE BETWEEN A STATE'S

  HIGHEST COURT AND THOSE PERSONS AUTHORIZED BY THAT COURT TO

  PRACTICE LAW IN THE STATE.  THE RELATIONSHIP BETWEEN THE PARTIES

  THUS IS AN EXTREMELY DELICATE ONE.  UNDER SUCH CIRCUMSTANCES

  FEDERAL COURTS GENERALLY HAVE CONSIDERED IT APPROPRIATE, BEFORE

  ATTEMPTING ANY DIRECT FEDERAL INTERVENTION AT THE OUTSET, FIRST

  TO PERMIT THE STATE COURTS TO PROCESS THE DISPUTE.  CF. REETZ V.

  BOZANICH, 397 U.S. 82, 85-87 (1970)." 

THE COURT ADDED THAT "(AS WAS TRUE IN REETZ THE INITIAL ISSUE IS
WHETHER THE STATE CONSTITUTION AUTHORIZED THE ENACTMENT CHALLENGED." 
THE COURT THEREFORE GRANTED DEFENDANT-APPELLEE'S MOTION TO DISMISS. 

BY TIMELY MOTION UNDER FED. RULE CIV. PROC. 59(E), APPELLANTS SOUGHT
AN ORDER AMENDING THE JUDGMENT BY EITHER 

     "(A) RETAINING JURISDICTION, BUT STAYING PROCEEDINGS IN THIS

  COURT PENDING DETERMINATION OF THE ISSUES OF STATE LAW IN THE

  COURTS OF NEW JERSEY, OR UNTIL EFFORTS TO OBTAIN SUCH A

  DETERMINATION HAVE BEEN EXHAUSTED; OR 

     "(B) ORDERING THAT THE DISMISSAL BE WITHOUT PREJUDICE, OR THAT

  THE SUITS FOR DETERMINATION OF THE FEDERAL CONSTITUTIONAL ISSUES

  MAY BE REINSTATED AFTER EXHAUSTING STATE RECOURSE WITH RESPECT TO

  STATE LAW ISSUES." 

JURISDICTIONAL STATEMENT 10.  THE MOTION WAS DENIED AND APPELLANTS
BROUGHT THIS APPEAL.  /3/ 

"(ABSTENTION 'DOES NOT, OF COURSE, INVOLVE THE ABDIACTION OF FEDERAL
JURISDICTION, BUT ONLY THE POSTPONEMENT OF ITS EXERCISE.'"  ENGLAND V.
LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411, 416 (1964),
QUOTING FROM HARRISON V. NAACP, 360 U.S. 167, 177 (1959).  FOR THAT
REASON, WE HAVE HELD THAT A DISMISSAL ON GROUNDS OF ABSTENTION SO AS TO
PERMIT A STATE COURT TO PASS ON AN ISSUE OF STATE LAW MUST NOT BE WITH
PREJUDICE.  DOUD V. HODGE, 350 U.S. 485 (1956); LAKE CARRIERS'  ASSN.
V. MACMULLAN, 406 U.S. 498 (1972).  THE PROPER COURSE IS FOR THE
DISTRICT COURT TO RETAIN JURISDICTION PENDING THE PROCEEDINGS IN THE
STATE COURTS.  LAKE CARRIERS' ASSN. V. MACMULLAN, SUPRA, AT 512-513;
ZWICKLER V. KOOTA, 389 U.S. 241, 244-245, N. 4 (1967).  /4/ ALTHOUGH
THE DISTRICT COURT MAY HAVE INTENDED ITS JUDGMENT OF DISMISSAL TO BE
WITHOUT PREJUDICE TO THE RIGHT OF APPELLANTS TO LITIGATE THEIR FEDERAL
CLAIMS IN FEDERAL COURT AT THE CONCLUSION OF THE STATE PROCEEDING, THE
COURT DID DENY APPELLANTS' MOTION FOR AN AMENDMENT TO THE JUDGMENT
MAKING CLEAR THAT NO PREJUDICE WOULD ATTACH.  THE MOTION SHOULD HAVE
BEEN GRANTED.  ACCORDINGLY, WE VACATE THE JUDGMENT OF THE DISTRICT
COURT AND REMAND THE CASE FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

        SO ORDERED. 

/1/  RULE 1:21-7 PROVIDES IN PART: 

"(C) IN ANY MATTER WHERE A CLIENT'S CLAIM FOR DAMAGES IS BASED UPON
THE ALLEGED TORTIOUS CONDUCT OF ANOTHER, INCLUDING PRODUCTS LIABILITY
CLAIMS, AND THE CLIENT IS NOT A SUBROGEE, AN ATTORNEY SHALL NOT
CONTRACT FOR, CHARGE, OR COLLECT A CONTINGENT FEE IN EXCESS OF THE
FOLLOWING LIMITS: 

"(1) 50% ON THE FIRST $1000 RECOVERED; 

"(2) 40% ON THE NEXT $2000 RECOVERED; 

"(3) 33 1/3% ON THE NEXT $47,000 RECOVERED; 

"(4) 20$ ON THE NEXT $50,000 RECOVERED; 

"(5) 10% ON ANY AMOUNT RECOVERED OVER $100,000 . . . . " 

/2/  APPELLEE MAINTAINED BELOW, AS IT MAINTAINS BEFORE THIS COURT,
THAT A THREE-JUDGE COURT NEED NOT HAVE BEEN CONVENED BECAUSE THE
CONSTITUTIONAL QUESTION PRESENTED IS INSUBSTANTIAL.  BAILEY V.
PATTERSON, 369 U.S. 31 (1962).  IT INSISTS, HOWEVER, THAT IF THE CLAIM
IS SUBSTANTIAL THEN IT MUST BE HEARD BY A COURT OF THREE JUDGES.  28
U.S.C. 2281.  IN VIEW OF THE POSTURE OF THE CASE ON THIS APPEAL, WE DO
NOT, OF COURSE, EXPRESS ANY VIEW ON THE MERITS OF THE QUESTION
PRESENTED. 

/3/  THE VALIDITY OF THE DISTRICT COURT'S DECISION TO ABSTAIN IS NOT
AT ISSUE ON THIS APPEAL. 

/4/  "IT IS BETTER PRACTICE, IN A CASE RAISING A FEDERAL
CONSTITUTIONAL OR STATUTORY CLAIM (WHERE THE DOCTRINE OF ABSTENTION IS
APPLIED), TO RETAIN JURISDICTION, RATHER THAN TO DISMISS . . . . "
ZWICKLER, SUPRA, AT 244 N. 4. 
..END :





BRONSTON V. UNITED STATES, 409 U.S. 352 


       BRONSTON V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 71-1011.  ARGUED NOVEMBER 15, 1972-- DECIDED JANUARY
10,

           1973 


FEDERAL PERJURY STATUTE, 18 U.S.C. 1621, DOES NOT REACH A WITNESS'
ANSWER THAT IS LITERALLY TRUE, BUT UNRESPONSIVE, EVEN ASSUMING THE
WITNESS INTENDS TO MISLEAD HIS QUESTIONER BY THE ANSWER, AND EVEN
ASSUMING THE ANSWER IS ARGUABLY "FALSE BY NEGATIVE IMPLICATION."  A
PERJURY PROSECUTION IS NOT, IN OUR ADVERSARY SYSTEM, THE PRIMARY
SAFEGUARD AGAINST ERRANT TESTIMONY; GIVEN THE INCONGUITY OF AN
UNRESPONSIVE ANSWER, IT IS THE QUESTIONER'S BURDEN TO FRAME HIS
INTERROGATION ACUTELY TO ELICIT THE PRECISE INFORMATION HE SEEKS.  PP.
357-362. 

453 F.2D 555, REVERSED. 

BURGER, C. J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT IN THIS CASE TO CONSIDER A NARROW BUT IMPORTANT
QUESTION IN THE APPLICATION OF THE FEDERAL PERJURY STATUTE, 18 U.S.C.
1621:  /1/  WHETHER A WITNESS MAY BE CONVICTED OF PERJURY FOR AN
ANSWER, UNDER OATH, THAT IS LITERALLY TRUE BUT NOT RESPONSIVE TO THE
QUESTION ASKED AND ARGUABLY MISLEADING BY NEGATIVE IMPLICATION. 

PETITIONER IS THE SOLE OWNER OF SAMUEL BRONSTON PRODUCTIONS, INC., A
COMPANY THAT BETWEEN 1958 AND 1964, PRODUCED MOTION PICTURES IN VARIOUS
EUROPEAN LOCATIONS.  FOR THESE ENTERPRISES, BRONSTON PRODUCTIONS OPENED
BANK ACCOUNTS IN A NUMBER OF FOREIGN COUNTRIES; IN 1962, FOR EXAMPLE,
IT HAD 37 ACCOUNTS IN FIVE COUNTRIES.  AS PRESIDENT OF BRONSTON
PRODUCTIONS, PETITIONER SUPERVISED TRANSACTIONS INVOLVING THE FOREIGN
BANK ACCOUNTS. 

IN JUNE 1964, BRONSTON PRODUCTIONS PETITIONED FOR AN ARRANGEMENT
WITH CREDITORS UNDER CHAPTER XI OF THE BANKRUPTCY ACT, 11 U.S.C. 701 ET
SEQ. ON JUNE 10, 1966, A REFEREE IN BANKRJPTCY HELD A SEC. 21(A)
HEARING TO DETERMINE, FOR THE BENEFIT OF CREDITORS, THE EXTENT AND
LOCATION OF THE COMPANY'S ASSETS.  /2/  PETITIONER'S PERJURY CONVICTION
WAS FOUNDED ON THE ANSWERS GIVEN BY HIM AS A WITNESS AT THAT BANKRUPTCY
HEARING, AND IN PARTICULAR ON THE FOLLOWING COLLOQUY WITH A LAWYER FOR
A CREDITOR OF BRONSTON PRODUCTIONS: 

     "Q.  DO YOU HAVE ANY BANK ACCOUNTS IN SWISS BANKS, MR.
BRONSTON? 

  "A.  NO, SIR. 

     "Q.  HAVE YOU EVER? 

     "A.  THE COMPANY HAD AN ACCOUNT THERE FOR ABOUT SIX MONTHS, IN
ZURICH. 

     "Q.  HAVE YOU ANY NOMINEES WHO HAVE BANK ACCOUNTS IN SWISS
BANKS? 

     "A.  NO SIR. 

     "Q.  HAVE YOU EVER? 

     "A.  NO, SIR."  IT IS UNDISPUTED THAT FOR A PERIOD OF NEARLY
FIVE YEARS, BETWEEN OCTOBER 1959 AND JUNE 1964, PETITIONER HAD A
PERSONAL BANK ACCOUNT AT THE INTERNATIONAL CREDIT BANK IN GENEVA,
SWITZERLAND, INTO WHICH HE MADE DEPOSITS AND UPON WHICH HE DREW CHECKS
TOTALING MORE THAN $180,000.  IT IS LIKEWISE UNDISPUTED THAT
PETITIONER'S ANSWERS WERE LITERALLY TRUTHFUL.  (A) PETITIONER DID NOT
AT THE TIME OF QUESTIONING HAVE A SWISS BANK ACCOUNT.  (B) BRONSTON
PRODUCTIONS, INC., DID HAVE THE ACCOUNT IN ZURICH DESCRIBED BY
PETITIONER.  (C) NEITHER AT THE TIME OF QUESTIONING NOR BEFORE DID
PETITIONER HAVE NOMINEES WHO HAD SWISS ACCOUNTS.  THE GOVERNMENT'S
PROSECUTION FOR PERJURY WENT FORWARD ON THE THEORY THAT IN ORDER TO
MISLEAD HIS QUESTIONER, PETITIONER ANSWERED THE SECOND QUESTION WITH
LITERAL TRUTHFULNESS BUT UNRESPONSIVELY ADDRESSED HIS ANSWER TO THE
COMPANY'S ASSETS AND NOT TO HIS OWN-- THEREBY IMPLYING THAT HE HAD NO
PERSONAL SWISS BANK ACCOUNT AT THE RELEVANT TIME. 

AT PETITIONER'S TRIAL, THE DISTRICT COURT INSTRUCTED THE JURY THAT
THE "BASIC ISSUE" WAS WHETHER PETITIONER "SPOKE HIS TRUE BELIEF." 
PERJURY, THE COURT STATED, "NECESSARILY INVOLVES THE STATE OF MIND OF
THE ACCUSED" AND "ESSENTIALLY CONSISTS OF WILFULLY TESTIFYING TO THE
TRUTH OF A FACT WHICH THE DEFENDANT DOES NOT BELIEVE TO BE TRUE";
PETITIONER'S TESTIMONY COULD NOT BE FOUND "WILFULLY" FALSE UNLESS AT
THE TIME HIS TESTIMONY WAS GIVEN PETITIONER "FULLY UNDERSTOOD THE
QUESTIONS PUT TO HIM BUT NEVERTHELESS GAVE FALSE ANSWERS KNOWING THE
SAME TO BE FALSE."  THE COURT FURTHER INSTRUCTED THE JURY THAT IF
PETITIONER DID NOT UNDERSTAND THE QUESTION PUT TO HIM AND FOR THAT
REASON GAVE AN UNRESPONSIVE ANSWER, HE COULD NOT BE CONVICTED OF
PERJURY.  PETITIONER COULD, HOWEVER, BE CONVICTED IF HE GAVE AN ANSWER
"NOT LITERALLY FALSE BUT WHEN CONSIDERED IN THE CONTEXT IN WHICH IT WAS
GIVEN, NEVERTHELESS CONSTITUTED) A FALSE STATEMENT."  /3/  THE JURY
BEGAN ITS DELIBERATIONS AT 11:30 A.M.  SEVERAL TIMES IT REQUESTED
EXHIBITS OR ADDITIONAL INSTRUCTIONS FROM THE COURT, AND AT ONE POINT,
AT THE REQUEST OF THE JURY, THE DISTRICT COURT REPEATED ITS
INSTRUCTIONS IN FULL.  AT 6:10 P.M., THE JURY RETURNED ITS VERDICT,
FINDING PETITIONER GUILTY ON THE COUNT OF PERJURY BEFORE US TODAY AND
NOT GUILTY ON ANOTHER CHARGE NOT HERE RELEVANT. 

IN THE COURT OF APPEALS, PETITIONER CONTENDED, AS HE HAD IN POST
TRIAL MOTIONS BEFORE THE DISTRICT COURT, THAT THE KEY QUESTION WAS
IMPRECISE AND SUGGESTIVE OF VARIOUS INTERPRETATIONS.  IN ADDITION,
PETITIONER CONTENDED THAT HE COULD NOT BE CONVICTED OF PERJURY ON THE
BASIS OF TESTIMONY THAT WAS CONCEDEDLY TRUTHFUL, HOUEVER UNRESPONSIVE. 
A DIVIDED COURT OF APPEALS HELD THAT THE QUESTION WAS READILY
SUSCEPTIBLE OF A RESPONSIVE REPLY AND THAT IT ADEQUATELY TESTED THE
DEFENDANT'S BELIEF IN THE VERACITY OF HIS ANSWER.  THE COURT OF APPEALS
FURTHER HELD THAT, "(FOR THE PURPOSES OF 18 U.S.C. 1621, AN ANSWER
CONTAINING HALF OF THE TRUTH WHICH ALSO CONSTITUTES A LIE BY NEGATIVE
IMPLICATION, WHEN THE ANSWER IS INTENTIONALLY GIVEN IN PLACE OF THE
RESPONSIVE ANSWER CALLED FOR BY A PROPER QUESTION, IS PERJURY."  453
F.2D 555, 559.  IN THIS COURT, PETITIONER RENEWS HIS ATTACK ON THE
SPECIFICITY OF THE QUESTION ASKED HIM AND THE LEGAL SUFFICIENCY OF HIS
ANSWER TO SUPPORT A CONVICTION FOR PERJURY.  THE PROBLEM OF THE
AMBIGUITY OF THE QUESTION IS NOT FREE FROM DOUBT, BUT WE NEED NOT REACH
THAT ISSUE.  EVEN ASSUMING, AS WE DO, THAT THE QUESTION ASKED
PETITIONER SPECIFICALLY FOCUSED ON PETITIONER'S PERSONAL BANK ACCOUNTS,
WE CONCLUDE THAT THE FEDERAL PERJURY STATUTE CANNOT BE CONSTRUED TO
SUSTAIN A CONVICTION BASED ON PETITIONER'S ANSWER. 

THE STATUTE, 18 U.S.C. 1621, SUBSTANTIALLY IDENTICAL IN ITS RELEVANT
LANGUAGE TO ITS PREDECESSORS FOR NEARLY A CENTURY, IS "A FEDERAL
STATUTE ENACTED IN AN EFFORT TO KEEP THE COURSE OF JUSTICE FREE FROM
THE POLLUTION OF PERJURY."  UNITED STATES V. WILLIAMS, 341 U.S. 58, 68
(1951).  WE HAVE HELD THAT THE GENERAL FEDERAL PERJURY PROVISION IS
APPLICABLE TO FEDERAL BANKRUPTCY PROCEEDINGS.  HAMMER V. UNITED STATES,
271 U.S. 620 (1926).  THE NEED FOR TRUTHFUL TESTIMONY IN A SEC. 21(A)
BANKRUPTCY PROCEEDING IS GREAT, SINCE THE PROCEEDING IS "A SEARCHING
INQUIRY INTO THE CONDITION OF THE ESTATE OF THE BANKRUPT, TO ASSIST IN
DISCOVERING AND COLLECTING THE ASSETS, AND TO DEVELOP FACTS AND
CIRCUMSTANCES WHICH BEAR UPON THE QUESTION OF DISCHARGE."  TRAVIS V.
UNITED STATES, 123 F.2D 268, 271 (CA10 1941).  HERE, AS ELSEWHERE, THE
PERPETRATION OF PERJURY "WELL MAY AFFECT THE DEAREST CONCERNS OF THE
PARTIES BEFORE A TRIBUNAL . . . . "  UNITED STATES V. NORRIS, 300 U.S.
564, 574 (1937). 

THERE IS, AT THE OUTSET, A SERIOUS LITERAL PROBLEM IN APPLYING SEC.
1621 TO PETITIONER'S ANSWER.  THE WORDS OF THE STATUTE CONFINE THE
OFFENSE TO THE WITNESS WHO "WILLFULLY . . . STATES . . . ANY MATERIAL
MATTER WHICH HE DOES NOT BELIEVE TO BE TRUE."  BEYOND QUESTION,
PETITIONER'S ANSWER TO THE CRUCIAL QUESTION WAS NOT RESPONSIVE IF WE
ASSUME, AS WE DO, THAT THE FIRST QUESTION WAS DIRECTED AT PERSONAL BANK
ACCOUNTS.  THERE IS, INDEED, AN IMPLICATION IN THE ANSWER TO THE SECOND
QUESTION THAT THERE WAS NEVER A PERSONAL BANK ACCOUNT; IN CASUAL
CONVERSATION THIS INTERPRETATION MIGHT REASONABLY BE DRAWN.  BUT WE ARE
NOT DEALING WITH CASUAL CONVERSATION AND THE STATUTE DOES NOT MAKE IT A
CRIMINAL ACT FOR A WITNESS TO WILLFULLY STATE ANY MATERIAL THAT IMPLIES
ANY MATERIAL MATTER THAT HE DOES NOT BELIEVE TO BE TRUE.  /4/ 

THE GOVERNMENT URGES THAT THE PERJURY STATUTE BE CONSTRUED BROADLY
TO REACH PETITIONER'S ANSWER AND THEREBY FULFILL ITS HISTORIC PURPOSE
OF REINFORCING OUR ADVERSARY FACTFINDING PROCESS.  WE MIGHT GO BEYOND
THE PRECISE WORDS OF THE STATUTE IF WE THOUGHT THEY DID NOT ADEQUATELY
EXPRESS THE INTENTION OF CONGRESS, BUT WE PERCEIVE NO REASON WHY
CONGRESS WOULD INTEND THE DRASTIC SANCTION OF A PERJURY PROSECUTION TO
CURE A TESTIMONIAL MISHAP THAT COULD READILY HAVE BEEN REACHED WITH A
SINGLE ADDITIONAL QUESTION BY COUNSEL ALERT-- AS EVERY EXAMINER OUGHT
TO BE-- TO THE INCONGRUITY OF PETITIONER'S UNRESPONSIVE ANSWER.  UNDER
THE PRESSURES AND TENSIONS OF INTERROGATION, IT IS NOT UNCOMMON FOR THE
MOST EARNEST WITNESSES TO GIVE ANSWERS THAT ARE NOT ENTIRELY
RESPONSIVE.  SOMETIMES THE WITNESS DOES NOT UNDERSTAND THE QUESTION, OR
MAY IN AN EXCESS OF CAUTION OR APPREHENSION READ TOO MUCH OR TOO LITTLE
INTO IT.  IT SHOULD COME AS NO SURPRISE THAT A PARTICIPANT IN A
BANKRUPTCY PROCEEDING MAY HAVE SOMETHING TO CONCEAL AND CONSCIOUSLY
TRIES TO DO SO, OR THAT A DEBTOR MAY BE EMBARRASSED AT HIS PLIGHT AND
YIELD INFORMATION RELUCTANTLY.  IT IS THE RESPONSIBILITY OF THE LAWYER
TO PROBE; TESTIMONIAL INTERROGATION, AND CROSS-EXAMINATION IN
PARTICULAR, IS A PROBING, PRYING, PRESSING FORM OF INQUIRY.  IF A
WITNESS EVADES, IT IS THE LAWYER'S RESPONSIBILITY TO RECOGNIZE THE
EVASION AND TO BRING THE WITNESS BACK TO THE MARK, TO FLUSH OUT THE
WHOLE TRUTH WITH THE TOOLS OF ADVERSARY EXAMINATION. 

IT IS NO ANSWER TO SAY THAT HERE THE JURY FOUND THAT PETITIONER
INTENDED TO MISLEAD HIS EXAMINER.  A JURY SHOULD NOT BE PERMITTED TO
ENGAGE IN CONJECTURE WHETHER AN UNRESPONSIVE ANSWER, TRUE AND COMPLETE
ON ITS FACE, WAS INTENDED TO MISLEAD OR DIVERT THE EXAMINER; THE STATE
OF MIND OF THE WITNESS IS RELEVANT ONLY TO THE EXTENT THAT IT BEARS ON
WHETHER "HE DOES NOT BELIEVE (HIS ANSWER) TO BE TRUE."  TO HOLD
OTHERWISE WOULD BE TO INJECT A NEW AND CONFUSING ELEMENT INTO THE
ADVERSARY TESTIMONIAL SYSTEM WE KNOW.  WITNESSES WOULD BE UNSURE OF THE
EXTENT OF THEIR RESPONSIBILITY FOR THE MISUNDERSTANDINGS AND
INADEQUACIES OF EXAMINERS, AND MIGHT WELL FEAR HAVING THAT
RESPONSIBILITY TESTED BY A JURY UNDER THE VAGUE RUBRIC OF "INTENT TO
MISLEAD" OR "PERJURY BY IMPLICATION."  THE SEMINAL MODERN TREATMENT OF
THE HISTORY OF THE OFFENSE CONCLUDES THAT ONE CONSIDERATION OF POLICY
OVERSHADOWED ALL OTHERS DURING THE YEARS WHEN PERJURY FIRST EMERGED AS
A COMMON-LAW OFFENSE:  "THAT THE MEASURES TAKEN AGAINST THE OFFENSE
MUST NOT BE SO SEVERE AS TO DISCOURAGE WITNESSES FROM APPEARING OR
TESTIFYING."  STUDY OF PERJURY, REPRINTED IN REPORT OF NEW YORK LAW
REVISION COMMISSION, LEGIS.  DOC.  NO. 60, P. 249 (1935).  A LEADING
19TH CENTURY COMMENTATOR, QUOTED BY DEAN WIGMORE, NOTED THAT THE
ENGLISH LAW "THROWS EVERY FENCE ROUND A PERSON ACCUSED OF PERJURY,"
FOR 

"THE OBLIGATION OF PROTECTING WITNESSES FROM OPPRESSION, OR ANNOYANCE,
BY CHARGES, OR THREATS OF CHARGES, OF HAVING BORNE FALSE TESTIMONY, IS
FAR PARAMOUNT TO THAT OF GIVING EVEN PERJURY ITS DESERTS.  TO REPRESS
THAT CRIME, PREVENTION IS BETTER THAN CURE:  AND THE LAW OF ENGLAND
RELIES, FOR THIS PURPOSE, ON THE MEANS PROVIDED FOR DETECTING AND
EXPOSING THE CRIME AT THE MOMENT OF COMMISSION,-- SUCH AS PUBLICITY,
CROSS-EXAMINATION, THE AID OF A JURY, ETC.; AND ON THE INFLICTION OF A
SEVERE, THOUGH NOT EXCESSIVE PUNISHMENT, WHEREVER THE COMMISSION OF THE
CRIME HAS BEEN CLEARLY PROVED."  W. BEST, PRINCIPLES OF THE LAW OF
EVIDENCE, SEC. 606 (C. CHAMBERLAYNE ED. 1883).  SEE J. WIGMORE,
EVIDENCE 275-276 (3D ED. 1940).  ADDRESSING THE SAME PROBLEM,
MONTESQUIEU TOOK AS HIS STARTING POINT THE FRENCH TRADITION OF CAPITAL
PUNISHMENT FOR PERJURY AND THE RELATIVELY MILD ENGLISH PUNISHMENT OF
THE PILLORY.  HE THOUGHT THE DISPARITY BETWEEN THE PUNISHMENTS COULD BE
EXPLAINED BECAUSE THE FRENCH DID NOT PERMIT THE ACCUSED TO PRESENT HIS
OWN WITNESSES, WHILE IN ENGLAND "THEY ADMIT OF WITNESSES ON BOTH SIDES,
AND THE AFFAIR IS DISCUSSED IN SOME MEASURE BETWEEN THEM; CONSEQUENTLY
FALSE WITNESS IS THERE LESS DANGEROUS, THE ACCUSED HAVING A REMEDY
AGAINST THE FALSE WITNESSES, WHICH HE HAS NOT IN FRANCE."  MONTESQUIEU,
THE SPIRIT OF THE LAWS, QUOTED IN STUDY OF PERJURY, SUPRA, P. 253. 

THUS, WE MUST READ SEC. 1621 IN LIGHT OF OUR OWN AND THE TRADITIONAL
ANGLO-AMERICAN JUDGMENT THAT A PROSECUTION FOR PERJURY IS NOT THE SOLE,
OR EVEN THE PRIMARY, SAFEGUARD AGAINST ERRANT TESTIMONY.  WHILE "THE
LOWER FEDERAL COURTS HAVE NOT DEALT WITH THE QUESTION OFTEN," AND WHILE
THEIR EXPRESSIONS DO NOT DEAL WITH UNRESPONSIVE TESTIMONY AND ARE NOT
PRECISELY IN POINT, "IT MAY BE SAID THAT THEY PREPONDERATE AGAINST THE
RESPONDENT'S CONTENTION."  UNITED STATES V. NORRIS, 300 U.S.,AT 576. 
THE CASES SUPPORT PETITIONER'S POSITION THAT THE PERJURY STATUTE IS NOT
TO BE LOOSELY CONSTRUED, NOR THE STATUTE INVOKED SIMPLY BECAUSE A WILY
WITNESS SUCCEEDS IN DERAILING THE QUESTIONER-- SO LONG AS THE WITNESS
SPEAKS THE LITERAL TRUTH.  THE BURDEN IS ON THE QUESTIONER TO PIN THE
WITNESS DOWN TO THE SPECIFIC OBJECT OF THE QUESTIONER'S INQUIRY. 
UNITED STATES V. WALL, 371 F.2D 398 (CA6 1967); UNITED STATES V.
SLUTZKY, 79 F.2D 504 (CA3 1935); GALANOS V. UNITED STATES, 49 F.2D 898
(CA6 1931); UNITED STATES V. COBERT, 227 F.SUPP.  915 (SD CAL. 1964). 

THE GOVERNMENT DOES NOT CONTEND THAT ANY MISLEADING OR INCOMPLETE
RESPONSE MUST BE SENT TO THE JURY TO DETERMINE WHETHER A WITNESS
COMMITTED PERJURY BECAUSE HE INTENDED TO SIDETRACK HIS QUESTIONER.  AS
THE GOVERNMENT RECOGNIZES, THE EFFECT OF SO UNLIMITED AN INTERPRETATION
OF SEC. 1621 WOULD BE BROADLY UNSETTLING.  IT IS SAID, RATHER, THAT
PETITIONER'S TESTIMONY FALLS WITHIN A MORE LIMITED CATEGORY OF
INTENTIONALLY MISLEADING RESPONSES WITH AN ESPECIALLY STRONG TENDENCY
TO MISLEAD THE QUESTIONER.  IN THE FEDERAL CASES CITED ABOVE, THE
GOVERNMENT TELLS US THE DEFENDANTS GAVE SIMPLE NEGATIVE ANSWERS "THAT
WERE BOTH ENTIRELY RESPONSIVE AND ENTIRELY TRUTHFUL . . . . IN NEITHER
CASE DID THE DEFENDANT-- AS DID PETITIONER HERE-- MAKE AFFIRMATIVE
STATEMENTS OF ONE FACT THAT IN CONTEXT CONSTITUTED DENIALS BY NEGATIVE
IMPLICATION OF A RELATED FACT."  THUS THE GOVERNMENT ISOLATES TWO
FACTORS WHICH ARE SAID TO REQUIRE APPLICATION OF THE PERJURY STATUTE IN
THE CIRCUMSTANCES OF THIS CASE:  THE UNRESPONSIVENESS OF PETITIONER'S
ANSWER AND THE AFFIRMATIVE CAST OF THAT ANSWER, WITH ITS ACCOMPANYING
NEGATIVE IMPLICATION.     THIS ANALYSIS SUCCEEDS IN CONFINING THE
GOVERNMENT'S POSITION, BUT IT DOES NOT PERSUADE US THAT CONGRESS
INTENDED TO EXTEND THE COVERAGE OF SEC. 1621 TO ANSWERS UNRESPONSIVE ON
THEIR FACE BUT UNTRUE ONLY BY "NEGATIVE IMPLICATION."  THOUGH PERHAPS A
PLAUSIBLE ARGUMENT CAN BE MADE THAT UNRESPONSIVE ANSWERS ARE ESPECIALLY
LIKELY TO MISLEAD, /5/  ANY SUCH ARGUMENT MUST, WE THINK, BE PREDICATED
UPON THE QUESTIONER'S BEING AWARE OF THE UNRESPONSIVENESS OF THE
RELEVANT ANSWER.  YET, IF THE QUESTIONER IS AWARE OF THE
UNRESPONSIVENESS OF THE ANSWER, WITH EQUAL FORCE IT CAN BE ARGUED THAT
THE VERY UNRESPONSIVENESS OF THE ANSWER SHOULD ALERT COUNSEL TO PRESS
ON FOR THE INFORMATION HE DESIRES.  IT DOES NOT MATTER THAT THE
UNRESPONSIVE ANSWER IS STATED IN THE AFFIRMATIVE, THEREBY IMPLYING THE
NEGATIVE OF THE QUESTION ACTUALLY POSED; FOR AGAIN, BY HYPOTHESIS, THE
EXAMINER'S AWARENESS OF UNRESPONSIVENESS SHOULD LEAD HIM TO PRESS
ANOTHER QUESTION OR REFRAME HIS INITIAL QUESTION WITH GREATER
PRECISION.  PRECISE QUESTIONING IS IMPERATIVE AS A PREDICATE FOR THE
OFFENSE OF PERJURY. 

IT MAY WELL BE THAT PETITIONER'S ANSWERS WERE NOT GUILELESS BUT WERE
SHREWDLY CALCULATED TO EVADE.  NEVERTHELESS, WE ARE CONSTRAINED TO
AGREE WITH JUDGE LUMBARD, WHO DISSENTED FROM THE JUDGMENT OF THE COURT
OF APPEALS, THAT ANY SPECIAL PROBLEMS ARISING FROM THE LITERALLY TRUE
BUT UNRESPONSIVE ANSWER ARE TO BE REMEDIED THROUGH THE "QUESTIONER'S
ACUITY" AND NOT BY A FEDERAL PERJURY PROSECUTION. 

              REVERSED. 

/1/  18 U.S.C. 1621 PROVIDES: 

"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.  THIS SECTION IS
APPLICABLE WHETHER THE STATEMENT OR SUBSCRIPTION IS MADE WITHIN OR
WITHOUT THE UNITED STATES." 

/2/  UNDER SEC. 334 OF THE BANKRUPTCY ACT, 11 U.S.C. 734, THE COURT
MUST HOLD A FIRST MEETING OF CREDITORS WITHIN A LIMITED PERIOD OF TIME
AFTER THE CHAPTER XI PETITION IS FILED.  SECTION 336, 11 U.S.C. 736,
PROVIDES THAT THE JUDGE OR COURT-APPOINTED REFEREE SHALL PRESIDE AT THE
MEETING AND "SHALL EXAMINE THE DEBTOR OR CAUSE HIM TO BE EXAMINED AND
HEAR WITNESSES ON ANY MATTER RELEVANT TO THE PROCEEDING." 

CHAPTER XI PROCEEDING BECAUSE IT IS A PROVISION OF CHAPTERS I THROUGH
VII "NOT INCONSISTENT WITH OR IN CONFLICT WITH THE PROVISIONS OF
(CHAPTER XI)."  11 U.S.C. 702.  SECTION 21(A) PROVIDES, IN PERTINENT
PART, THAT "(THE COURT MAY, UPON APPLICATION OF ANY OFFICER, BANKRUPT,
OR CREDITOR, BY ORDER REQUIRE ANY DESIGNATED PERSONS . . . TO APPEAR
BEFORE THE COURT . . . TO BE EXAMINED CONCERNING THE ACTS, CONDUCT, OR
PROPERTY OF A BANKRUPT."  NUMEROUS STATEMENTS OF THE BROAD SCOPE OF A
SEC. 21(A) INQUIRY ARE COLLECTED IN 2 W. COLLIER, BANKRUPTCY PARA.
21.11 (14TH ED. 1971).  THE OFFICERS OF A BANKRUPT MAY BE REQUIRED TO
UNDERGO A SEC. 21(A) EXAMINATION EVEN IF THEY ARE NOT STILL OFFICERS AT
THE TIME OF FILING.  ID., PARA. 21.09.  IF IT APPEARS THAT THE INTEREST
OF A WITNESS IS ADVERSE TO THE PARTY CALLING HIM TO TESTIFY, UNDER SEC.
21(J), 11 U.S.C. 44(J), THE PARTY MAY EXAMINE THE WITNESS AS IF UNDER
CROSS-EXAMINATION, AND THE EXAMINING PARTY IS NOT BOUND BY THE WITNESS'
TESTIMONY.  1A W. COLLIER, BANKRUPTCY PARA. 5.22 (14TH ED. 1972). 

/3/  THE DISTRICT COURT GAVE THE FOLLOWING EXAMPLE "AS AN
ILLUSTRATION ONLY": 

"(IF IT IS MATERIAL TO ASCERTAIN HOW MANY TIMES A PERSON HAS ENTERED
A STORE ON A GIVEN DAY AND THAT PERSON RESPONDS TO SUCH A QUESTION BY
SAYING FIVE TIMES WHEN IN FACT HE KNOWS THAT HE ENTERED THE STORE 50
TIMES THAT DAY, THAT PERSON MAY BE GUILTY OF PERJURY EVEN THOUGH IT IS
TECHNICALLY TRUE THAT HE ENTERED THE STORE FIVE TIMES." 

THE ILLUSTRATION GIVEN BY THE DISTRICT COURT IS HARDLY COMPARABLE TO
PETITIONER'S ANSWER; THE ANSWER "FIVE TIMES" IS RESPONSIVE TO THE
HYPOTHETICAL QUESTION AND CONTAINS NOTHING TO ALERT THE QUESTIONER THAT
HE MAY BE SIDETRACKED.  SEE INFRA, AT 358.  MOREOVER, IT IS VERY
DOUBTFUL THAT AN ANSWER WHICH, IN RESPONSE TO A SPECIFIC QUANTITATIVE
INQUIRY, BALDLY UNDERSTATES A NUMERICAL FACT CAN BE DESCRIBED AS EVEN
"TECHNICALLY TRUE."  WHETHER AN ANSWER IS TRUE MUST BE DETERMINED WITH
REFERENCE TO THE QUESTION IT PURPORTS TO ANSWER, NOT IN ISOLATION.  AN
UNRESPONSIVE ANSWER IS UNIQUE IN THIS RESPECT BECAUSE ITS
UNRESPONSIVENESS BY DEFINITION PREVENTS ITS TRUTHFULNESS FROM BEING
TESTED IN THE CONTEXT OF THE QUESTION-- UNLESS THERE IS TO BE
SPECULATION AS TO WHAT THE UNRESPONSIVE ANSWER "IMPLIES."  SEE INFRA,
AT 359. 

/4/  PETITIONER'S ANSWER IS NOT TO BE MEASURED BY THE SAME STANDARDS
APPLICABLE TO CRIMINALLY FRAUDULENT OR EXTORTIONATE STATEMENTS.  IN
THAT CONTEXT, THE LAW GOES "RATHER FAR IN PUNISHING INTENTIONAL
CREATION OF FALSE IMPRESSIONS BY A SELECTION OF LITERALLY TRUE
REPRESENTATIONS, BECAUSE THE ACTOR HIMSELF GENERALLY SELECTS AND
ARRANGES THE REPRESENTATIONS."  IN CONTRAST, "UNDER OUR SYSTEM OF
ADVERSARY QUESTIONING AND CROSS-EXAMINATION THE SCOPE OF DISCLOSURE IS
LARGELY IN THE HANDS OF COUNSEL AND PRESIDING OFFICER."  A.L.I. MODEL
PENAL CODE SEC. 208.20, COMMENT (TENT.  DRAFT NO. 6, 1957, P. 124). 

/5/  ARGUABLY, THE QUESTIONER WILL ASSUME THERE IS SOME LOGICAL
JUSTIFICATION FOR THE UNRESPONSIVE ANSWER, SINCE COMPETENT WITNESSES DO
NOT USUALLY ANSWER IN IRRELEVANCIES.  THUS THE QUESTIONER MAY CONCLUDE
THAT THE UNRESPONSIVE ANSWER IS GIVEN ONLY BECAUSE IT IS INTENDED TO
MAKE A STATEMENT-- A NEGATIVE STATEMENT-- RELEVANT TO THE QUESTION
ASKED.  IN THIS CASE, PETITIONER'S QUESTIONER MAY HAVE ASSUMED THAT
PETITIONER DENIED HAVING A PERSONAL ACCOUNT IN SWITZERLAND; ONLY THIS
UNSPOKEN DENIAL WOULD PROVIDE A LOGICAL NEXUS BETWEEN INQUIRY DIRECTED
TO PETITIONER'S PERSONAL ACCOUNT AND PETITIONER'S ADVERTING, IN
RESPONSE, TO THE COMPANY ACCOUNT IN ZURICH. 

SHELDON H. ELSEN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE LEWIS SHAPIRO AND JOHN S. MARTIN, JR. 

ANDREW L. FREY ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
PETERSEN, BEATRICE ROSENBERG, AND MARSHALL TAMOR GOLDING. 
..END :












HUGHES TOOL CO. V. TRANS WORLD AIRLINES, 409 U.S. 363 


       HUGHES TOOL CO. ET AL. V. TRANS WORLD AIRLINES, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 71-827.  ARGUED OCTOBER 10, 1972-- DECIDED JANUARY 10,

1973.  /1/ 


TRANS WORLD AIRLINES (TWA) BROUGHT THIS ANTITRUST ACTION AGAINST THE
HUGHES TOOL CO. (TOOLCO) AND OTHERS FOR TREBLE DAMAGES AS A RESULT OF
THE MANNER IN WHICH TOOLCO HAD EXERCISED ITS CONTROLLING INTEREST IN
TWA, WITH PARTICULAR REFERENCE TO TOOLCO'S ASSERTED ACTS TO CONTROL AND
DICTATE THE ACQUISITION AND FINANCING OF AIRCRAFT BY TWA.  AS AN
ORGANIZATION ENGAGED IN PHASES OF AERONAUTICS, TOOLCO COULD NOT ACQUIRE
CONTROL OF AN AIR CARRIER SUCH AS TWA WITHOUT CONSENT OF THE CIVIL
AERONAUTICS BOARD (CAB).  IN 1944 THE CAB APPROVED DE FACTO CONTROL OF
TWA BY TOOLCO AS COMPORTING WITH THE PROVISIONS OF SEC. 408 OF THE
FEDERAL AVIATION ACT.  THAT PROVISION PERMITS ACQUISITIONS OF CONTROL
THAT THE CAB FINDS ARE NOT INCONSISTENT WITH THE PUBLIC INTEREST AND
THAT WILL NOT RESULT IN MONOPOLY.  SECTION 414 IMMUNIZES FROM ANTITRUST
LIABILITY ANY CONDUCT APPROVED BY A CAB ORDER ISSUED UNDER SEC. 408. 
THE APPROVAL NARROWLY LIMITED INTERCOMPANY SALES TRANSACTIONS WITHOUT
SPECIFIC CAB APPROVAL, AND REQUIRED ANNUAL REPORTING.  A FEW YEARS
LATER, TOOLCO AND TWA MADE AN AGREEMENT PERMITTING TOOLCO TO OBTAIN
FULL LEGAL CONTROL OF TWA.  THE CAB, AFTER FULL HEARINGS INTO THE
TOOLCO-TWA RELATIONSHIP, FOUND THAT TOOLCO'S FINANCIAL AND OTHER
SUPPORT WAS OF GREAT IMPORTANCE TO TWA AND CONCLUDED THAT "THE
CONTINUED INTEREST OF TOOLCO IN TWA APPEARS ESSENTIAL TO THE BEST
INTERESTS OF THE CARRIER AND THE PUBLIC."  THE CAB'S APPROVAL WAS MADE
SUBJECT TO THE CONDITIONS OF THE 1944 ORDER.  AS A RESULT, FROM 1944 TO
1960, EVERY ACQUISITION AND LEASE OF AIRCRAFT BY TWA FROM TOOLCO AND
EACH FINANCING BY TWA FROM TOOLCO RECEIVED CAB APPROVAL PURSUANT TO
SEC. 408.  IN 1960, TOOLCO'S STOCK IN TWA WAS PLACED IN A VOTING TRUST
IN CONNECTION WITH A PROGRAM FOR FINANCING TWA'S ACQUISITION OF JET
EQUIPMENT.  SHORTLY THEREAFTER, TWA BROUGHT THIS SUIT.  AS A DEFENSE,
TOOLCO RELIED ON PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U.S.
296.  THE DISTRICT COURT ENTERED A DEFAULT JUDGMENT AGAINST TOOLCO. 
THE COURT OF APPEALS AFFIRMED, CONCLUDING THAT PAN AMERICAN WAS
INAPPLICABLE BECAUSE, UNLIKE THE SITUATION IN THAT CASE, THE CONDUCT
CHALLENGED IN TWA'S COMPLAINT WAS "UNRELATED TO ANY SPECIFIC FUNCTION
OF THE CAB" AND NOT WITHIN THE CAB'S EXCLUSIVE COMPETENCE.  HELD:  THE
TRANSACTIONS THAT TWA CHALLENGED AS VIOLATIVE OF THE ANTITRUST LAWS
WERE UNDER THE CAB'S CONTROL AND SURVEILLANCE, AND, BY VIRTUE OF SECS.
408 AND 414 OF THE FEDERAL AVIATION ACT, HAD IMMUNITY UNDER THE
ANTITRUST LAWS.  THE COURT OF APPEALS, THEREFORE, ERRED IN HOLDING THAT
PAN AMERICAN, SUPRA, IS NOT CONTROLLING ON THE FACTS INVOLVED HERE. 
PP. 366-389. 

449 F.2D 51, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, WHITE, POWELL, AND REHNQUIST, JJ., JOINED.  BURGER, C. J.,
FILED A DISSENTING OPINION, IN WHICH BLACKMUN, J., JOINED, POST, P.
389.  MARSHALL, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE COMPLAINT IN THIS LITIGATION ALLEGED ANTITRUST VIOLATIONS AND
DAMAGES SUFFERED BY TRANS WORLD AIRLINES (TWA) WHILE UNDER CONTROL OF
HUGHES TOOL CO. (TOOLCO).  A DEFAULT JUDGMENT WAS ENTERED FOR OVER $145
MILLION WITH INTEREST AT THE RATE OF 7 1/2%.  THE DISTRICT COURT'S
OPINIONS CONFIRMING THE DAMAGES AWARD ARE REPORTED AT 308 F.SUPP.  679,
312 F.SUPP.  478.  THE COURT OF APPEALS AFFIRMED, 449 F.2D 51.  THE
CASES ARE HERE ON A PETITION FOR CERTIORARI /1A) AND ON A CROSS
PETITION.  405 U.S. 915. 

THE CRUX OF TWA'S COMPLAINT WAS THE USE OF TOOLCO OF ITS CONTROL
OVER TWA TO CONTROL AND DICTATE THE MANNER AND METHOD BY WHICH TWA
ACQUIRED AIRCRAFT AND THE NECESSARY FINANCING THEREOF.  /2/ 

WHETHER OR NOT THAT COMPLAINT STATES A CAUSE OF ACTION UNDER THE
ANTITRUST LAWS IS A QUESTION WE DO NOT REACH.  ANOTHER DEFENSE OF
TOOLCO WAS THAT THOSE TRANSACTIONS WERE UNDER THE CONTROL AND
SURVEILLANCE OF THE CIVIL AERONAUTICS BOARD AND BY VIRTUE OF THE
FEDERAL AVIATION ACT OF 1958 THOSE TRANSACTIONS HAVE IMMUNITY FROM THE
ANTITRUST LAWS. 

IT IS OUR VIEW THAT THE COURT OF APPEALS ERRONEOUSLY REJECTED THAT
DEFENSE.  THIS RESULT, WE THINK, IS REQUIRED BY SECS. 408 AND 414 OF
THE FEDERAL AVIATION ACT AND BY OUR PRIOR DECISION IN PAN AMERICAN
WORLD AIRWAYS V. UNITED STATES, 371 U.S. 296 (1963). 

CONSOLIDATIONS, AND OTHER TRANSACTIONS WITHOUT THE APPROVAL OF THE
CIVIL AERONAUTICS BOARD.  /3/  SPECIFICALLY, SEC. 408(A)(5) REQUIRES
THE APPROVAL OF THE BOARD WHEN "ANY PERSON ENGAGED IN ANY OTHER PHASE
OF AERONAUTICS" SEEKS TO ACQUIRE CONTROL OF ANY AIR CARRIER IN ANY
MANNER WHATSOEVER.  SECTION 408(B) AUTHORIZES AND DIRECTS THE BOARD TO
APPROVE SUCH TRANSACTIONS, INCLUDING ACQUISITIONS OF CONTROL, THAT ARE
IN THE "PUBLIC INTEREST" AND PROHIBITS APPROVAL OF ANY TRANSACTION
"WHICH WOULD RESULT IN CREATING A MONOPOLY OR MONOPOLIES AND THEREBY
RESTRAIN COMPETITION OR JEOPARDIZE ANOTHER AIR CARRIER" NOT A PARTY TO
THE TRANSACTION.  SECTION 102 OF THE ACT REQUIRES THAT IN ASSESSING THE
PUBLIC INTEREST AND THE PUBLIC CONVENIENCE AND NECESSITY, THE BOARD
SHOULD CONSIDER, AMONG OTHER THINGS, "(COMPETITION TO THE EXTENT
NECESSARY TO ASSURE THE SOUND DEVELOPMENT OF AN AIR-TRANSPORTATION
SYSTEM PROPERLY ADAPTED TO THE NEEDS OF THE FOREIGN AND DOMESTIC
COMMERCE OF THE UNITED STATES . . . . "  /4/  SECTION 408(E) EMPOWERS
THE BOARD, UPON COMPLAINT OR ITS OWN INITIATIVE, TO INVESTIGATE AND
DETERMINE WHETHER ANY PERSON IS VIOLATING ANY PROVISION OF SUBSECTION
(A) AND, IF SUCH VIOLATION IS FOUND, TO "REQUIRE SUCH PERSON TO TAKE
SUCH ACTION, CONSISTENT WITH THE PROVISIONS OF THIS CHAPTER, AS MAY BE
NECESSARY, IN THE OPINION OF THE BOARD, TO PREVENT FURTHER VIOLATION OF
SUCH PROVISION."  UNDER SEC. 408(D), THE BOARD HAS BROAD CONTROL OVER
THE ACCOUNTS, RECORDS, AND REPORTS OF ANYONE CONTROLLING AN AIR
CARRIER, AND THEIR INSPECTION.  THE BOARD IS FURTHER GRANTED POWER TO
CONTROL THE DESIGNATION OF ANY OFFICER OR DIRECTOR OF AN AIR CARRIER
WHO IS AN OFFICER, DIRECTOR, MEMBER, OR THE CONTROLLING STOCKHOLDER OF
ANY PERSON WHO IS ENGAGED "IN ANY PHASE OF AERONAUTICS."  SEC. 409(A),
49 U.S.C. 1379(A).  SECTION 414 RELIEVES FROM THE OPERATION OF THE
ANTITRUST LAWS ANY PERSON AFFECTED BY ANY ORDER UNDER SEC. 408 "INSOFAR
AS MAY BE NECESSARY TO ENABLE SUCH PERSON TO DO ANYTHING AUTHORIZED,
APPROVED, OR REQUIRED BY SUCH ORDER."  /5/ 

IT WAS AGAINST THIS STATUTORY BACKDROP THAT THE CIVIL AERONAUTICS
BOARD ISSUED A SERIES OF DECISIONS AND ORDERS WITH RESPECT TO THE
CONTROL OF TWA BY TOOLCO, THE MAJOR DECISIONS BEING ISSUED IN 1944,
1948, 1950, AND 1960.  THE FIRST DECISION, 6 C.A.B. 153 (1944),
AUTHORIZED CONTROL OF APPROXIMATELY 45.6% OF THE OUTSTANDING STOCK OF
TWA.  FROM THE BOARD'S OPINION ISSUED AT THAT TIME, IT APPEARS THAT
HOWARD HUGHES FIRST BECAME INTERESTED IN TWA AT THE INVITATION OF HIS
FRIEND, JACK FRYE, THE PRESIDENT OF TWA.  HUGHES BEGAN ACQUIRING TWA
STOCK THROUGH TOOLCO, WHICH HE SOLELY OWNED.  BY 1942, TOOLCO HAD
ACQUIRED 42.1% OF TWA'S OUTSTANDING STOCK AND FOR ALL PRACTICAL
PURPOSES WAS IN POSITION TO CONTROL THE DAY-TO-DAY AFFAIRS OF THE
CARRIER.  MEANWHILE, HUGHES AND FRYE HAD JOINTLY DESIGNED A FOUR-ENGINE
TRANSPORT, LATER KNOWN AS THE CONSTELLATION, WHICH LOCKHEED AGREED TO
MANUFACTURE UNDER CONTRACT WITH TOOLCO.  THE CONTRACT WAS ASSIGNED BY
TOOLCO TO TWA IN 1942, TOOLCO RESERVING THE RIGHT TO PURCHASE A SIZABLE
NUMBER OF SUCH AIRCRAFT THROUGH TWA.  IT WAS THIS ARRANGEMENT BY WHICH
TOOLCO MIGHT ACTUALLY ACQUIRE FOR RESALE A NUMBER OF COMMERCIAL
AIRCRAFT THAT, TOGETHER WITH ITS EXPERIMENTAL WORK IN AVIATION AND ITS
MANUFACTURE OF AIRCRAFT PARTS FOR THE MILITARY, CHARACTERIZED TOOLCO AS
AN ORGANIZATION ENGAGED IN ANY PHASE OF AERONAUTICS AND THEREFORE
FORBIDDEN TO ACQUIRE CONTROL OF AN AIR CARRIER SUCH AS TWA WITHOUT THE
CONSENT OF THE BOARD.  TOOLCO'S CONTROL OF TWA, BY VIRTUE OF ITS STOCK
OWNERSHIP WHICH HAD BY 1944 INCREASED TO 45.6%, WAS APPROVED BY THE
BOARD AS BEING IN THE PUBLIC INTEREST AND CONSISTENT WITH THE
PROVISIONS OF SEC. 408, INCLUDING THE PROHIBITION AGAINST MONOPOLY.  IN
ORDER TO INSURE THAT TOOLCO WOULD NOT ABUSE ITS POWER OVER TWA, "TO ITS
OWN PROFIT AND TO THE DETRIMENT OF THE PUBLIC INTEREST," 6 C.A.B.,AT
156, THE APPROVAL WAS TO CONTINUE ONLY SO LONG AS INTERCOMPANY
PURCHASES DID NOT EXCEED $200 PER ITEM AND DID NOT AMOUNT TO MORE THAN
$10,000 IN ANY ONE CALENDAR YEAR.  ANNUAL REPORTS WERE REQUIRED IN THIS
RESPECT.  /6/  6 C.A.B.,AT 158. 

THE 1948 AND 1950 DECISIONS OF THE BOARD ORIGINATED IN A LETTER
AGREEMENT PRESENTED BY TOOLCO TO TWA ON JANUARY 8, 1947, AND ACCEPTED
BY TWA THE FOLLOWING DAY.  BY THIS AGREEMENT, TOOLCO AGREED TO LOAN $10
MILLION TO TWA IN RETURN FOR THE LATTER'S INTEREST-BEARING NOTES WHICH
WERE CONVERTIBLE INTO COMMON STOCK OF THE COMPANY.  ON ITS OWN
INITIATIVE, THE BOARD OPENED AN INVESTIGATION INTO THE MATTER.  AT THE
THRESHOLD WAS THE QUESTION OF BOARD JURISDICTION, WHICH WAS HOTLY
CONTESTED.  THE BOARD'S JUNE 1948 OPINION SUSTAINED ITS JURISDICTION, 9
C.A.B. 381.  THE OPINION TOOK A DUAL APPROACH TO THE JURISDICTIONAL
QUESTION.  IT FIRST INQUIRED WHETHER "ANY CHANGE IN THE ACTIVITIES OF
TOOLCO IN THE FIELD OF AERONAUTICS SINCE OCTOBER 17, 1944, HAS AFFECTED
OR ALTERED THE CHARACTER OF THE CONTROL APPROVED IN DOCKET NO. 1182. 
IT IS CLEAR THAT A SUBSTANTIAL CHANGE IN THE ACTIVITIES OF TOOLCO IN
THE FIELD OF AERONAUTICS WOULD RESULT IN A TRANSACTION SUBJECT TO THE
BOARD'S JURISDICTION UNDER SECTION 408 BY REASON OF THE FACT THAT THE
CHARACTER AND PROPRIETY OF CONTROL ORIGINALLY APPROVED MIGHT BE ALTERED
OR CHANGED AS A RESULT THEREOF."  9 C.A.B.,AT 382. 

AFTER REVIEWING THE AERONAUTICAL ACTIVITIES OF TOOLCO, IT WAS
CONCLUDED THAT THE AIRCRAFT DIVISION OF THE COMPANY WAS CHIEFLY A LARGE
SCALE EXPERIMENTAL PLANT FOR THE MILITARY AND HAD NOT SUBSTANTIALLY
CHANGED ITS STATUS WITH RESPECT TO ITS PARTICIPATION IN ANY PHASE OF
AERONAUTICS. 

THE BOARD'S SECOND APPROACH TO THE JURISDICTIONAL QUESTION WAS TO
INQUIRE WHETHER THE LETTER AGREEMENT, WHICH WOULD PERMIT TOOLCO TO
INCREASE ITS SHAREHOLDINGS UP TO 80% OF THE OUTSTANDING SHARES OF TWA,
REPRESENTED SUCH A CHANGE IN EXTENT OR EFFECTIVENESS OF CONTROL AS TO
GIVE THE BOARD JURISDICTION AND REQUIRE ITS CONSENT.  ITS CONCLUSION
WAS THAT, ALTHOUGH TOOLCO'S 45.6% WAS OBVIOUSLY ENOUGH TO DOMINATE THE
BOARD AND CONTROL THE DAY-TO-DAY AFFAIRS OF THE COMPANY, THE 1947
LETTER AGREEMENT WOULD PERMIT TOOLCO TO TRANSLATE ITS DE FACTO CONTROL
INTO FULL LEGAL CONTROL OF THE COMPANY, WHICH WOULD "OBVIOUSLY IMPLY)
POWER TO DICTATE THE COMPLETE CORPORATE ACTIVITIES OF THE
CORPORATION."  9 C.A.B.,AT 387.  THIS WAS SUFFICIENT TO REQUIRE AN
ORDER OF THE BOARD IN ADDITION TO THE 1944 ORDER. 

WITH ITS JURISDICTION ESTABLISHED, THE BOARD PROCEEDED WITH HEARINGS
AND INQUIRY INTO WHETHER THE ADDITIONAL CONTROL WAS CONSISTENT WITH THE
PUBLIC INTEREST.  THIS MATTER WAS ALSO CONTESTED.  TOOLCO THOUGHT THAT
ONLY A NARROWLY FOCUSED INQUIRY WAS APPROPRIATE, BUT THE BOARD'S PUBLIC
COUNSEL NOT ONLY INSISTED THAT THE HEARINGS BE FAR-RANGING BUT URGED,
AS A POSSIBLE SOLUTION, THAT THE ADDITIONAL CONTROL BE DISAPPROVED AND
THAT THE ORIGINAL 1944 PROCEEDINGS, DOCKET NO. 1182, BE REOPENED TO
DETERMINE WHETHER ALL CONTROL OF TWA BY TOOLCO SHOULD BE TERMINATED. 
THE BOARD /7/  OPTED FOR AN INVESTIGATION SUFFICIENTLY BROAD TO INQUIRE
"INTO THE ACTIONS AND POLICIES OF THE CONTROLLING COMPANY WITH RESPECT
TO TWA FOR THE PERIOD DURING WHICH THE PRIOR-APPROVED CONTROL EXISTED .
. . (FOR INEVITABLY THE CONTROLLING COMPANY, BY VIRTUE OF ITS
INVESTMENT IN THE ACQUIRED CARRIER, WILL ENDEAVOR TO MAKE ITSELF
ACCOUNTABLE-- AS INDEED THE ACQUIRER HERE UNDER SCRUTINY HAD-- FOR THE
MANAGERIAL EFFICIENCY, THE OPERATING ECONOMY, AND THE FINANCIAL
INTEGRITY OF THE CONTROLLED CARRIER."  12 C.A.B. 192, 196 (1950). 
BEFORE APPROVING THE ADDITIONAL ACQUISITION, WHICH WOULD MAKE CERTAIN
"(COMPLETE ACTUAL AND LEGAL CONTROL," ID., AT 197, THE BOARD DETERMINED
NOT ONLY TO EXAMINE THE FUTURE PLANS OF TOOLCO BUT ALSO ITS PAST
CONDUCT WITH RESPECT TO TWA. 

ACCORDINGLY, THE TOOLCO-HUGHES-TWA RELATIONSHIP FROM 1939 TO THE
DATE OF THE DECISION WAS EXAMINED IN DETAIL, INCLUDING THE EVENTS
OCCURRING SINCE THE LETTER AGREEMENT OF JANUARY 1947.  THE MAJOR FOCUS
OF THE INQUIRY WAS THE DIFFERENCES BETWEEN TWA MANAGEMENT AND TOOLCO
WITH RESPECT TO THE ACQUISITION OF NEW FLIGHT EQUIPMENT-- THE QUANTITY,
THE TYPE, THE TIMING, AND THE FINANCING THEREOF.  UNQUESTIONABLY, TWA
HAD BEEN AND WAS IN NEED OF ADDITIONAL FINANCING TO MAKE POSSIBLE THE
PURCHASE OF NEW EQUIPMENT, PARTICULARLY THAT NEEDED TO OPERATE ITS
EXPANDED ROUTES.  TWA PROPOSED AND PREFERRED EQUITY FINANCING IN LARGE
MEASURE, BUT TOOLCO MOST OFTEN INSISTED ON FINANCING NEW EQUIPMENT
THROUGH CREDIT ARRANGEMENTS.  DISAGREEMENT CAUSED DELAY, AND THIS, IN
COMBINATION WITH OTHER FACTORS, BROUGHT TWA TO THE VERGE OF BANKRUPTCY
OR REORGANIZATION IN LATE 1946.  IT WAS AT THIS JUNCTURE THAT THE
JANUARY 1947 LETTER AGREEMENT EVENTUATED.  FINANCIAL FAILURE WAS
AVERTED; BUT URGENT NEEDS FOR NEW EQUIPMENT CONTINUED, AND SUBSTANTIAL
ADDITIONS WERE MADE IN THE YEARS FROM 1947 TO 1950, MOST OF IT WITH THE
AID OF TOOLCO AND SOME OF IT BY PURCHASE FROM TOOLCO ITSELF.  /8/  BY
THE TIME THE HEARINGS CONCLUDED AND THE CASE WAS UNDER SUBMISSION,
TWA'S FINANCIAL CONDITION HAD CONSIDERABLY IMPROVED, MEASURABLY AIDED
BY BETTER OPERATING RESULTS, BETTER EXPENSE CONTROL, AND A STOCK
OFFERING TO STOCKHOLDERS WITH THE UNSUBSCRIBED AMOUNT BEING
UNDERWRITTEN BY INVESTMENT BANKERS.  12 C.A.B.,AT 208-209. 

IN CONSIDERING WHETHER THE ADDITIONAL CONTROL BY TOOLCO WOULD BE IN
THE PUBLIC INTEREST, THE BOARD OBSERVED THAT THERE WAS NO CONFLICT OF
INTEREST BETWEEN TOOLCO'S PRESENT OR CONTEMPLATED AERONAUTICAL
ACTIVITIES AND ITS CONTROL OF AN AIR CARRIER AND THAT ENHANCED CONTROL
PRESENTED NO PROBLEMS UNDER THE ANTIMONOPOLY PROVISIONS OF SEC.
408(B).  ID., AT 216.  THE BOARD THEN NOTED THAT TOOLCO'S CONTRIBUTIONS
TO THE SCIENCE OF AERONAUTICS BY WAY OF AIRCRAFT DESIGN AND
INSTRUMENTAL AIDS TO AVIATION FOR BOTH THE ARMED SERVICES AND CIVIL
AVIATION HAVE BEEN SUBSTANTIAL AND FOUND THAT "OF SPECIFIC IMPORTANCE
TO TWA, HAVE BEEN THE CONTRIBUTIONS OF TOOLCO AND MR. HUGHES IN THE WAY
OF FINANCIAL SUPPORT TO THE CARRIER, IN THE SELECTION AND PURCHASE OF
ITS EQUIPMENT, AND THEIR ADVICE AND GUIDANCE TO THE ENGINEERING AND
OPERATIONS DEPARTMENTS OF THE CARRIER."  IBID.  /9/  MOST IMPORTANT,
HOWEVER, IN THE BOARD'S OPINION, WERE THE EFFORTS OF TOOLCO TO IMPROVE
THE FINANCIAL POSITION OF TWA DURING THE LAST FEW YEARS.  ALTHOUGH
CRITICIZING TOOLCO, ALONG WITH OTHERS IN THE AIRCRAFT TRANSPORTATION
INDUSTRY, FOR RELYING TOO HEAVILY ON DEBT FINANCING WHICH, IN THE CASE
OF TWA HAD RESULTED IN A VERY DIFFICULT, LOPSIDED CAPITAL STRUCTURE,
THE BOARD CONCLUDED THAT THE RECORD WOULD NOT SUPPORT A FINDING THAT
THE ADDITIONAL CONTROL WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST. 
INDEED, THE BOARD CONCLUDED THAT "(THE CONTINUED INTEREST OF TOOLCO IN
TWA APPEARS ESSENTIAL TO THE BEST INTERESTS OF THE CARRIER AND THE
PUBLIC."  ID., AT 224. 

THE BOARD'S APPROVAL IN 1950 OF THE COMPLETE CONTROL OF TWA BY
TOOLCO WAS MADE "SUBJECT TO THE TERMS AND CONDITIONS" IMPOSED BY THE
1944 ORDER WITH RESPECT TO INTERCOMPANY PURCHASES AND ANNUAL
REPORTING.  SEE SUPRA, AT 370.  AS A RESULT, FROM 1944 THROUGH 1960,
EVERY ACQUISITION OR LEASE OF AIRCRAFT BY TWA FROM TOOLCO AND EACH
FINANCING OF TWA BY TOOLCO REQUIRED BOARD APPROVAL.  APPLICATIONS BY
TOOLCO WERE MADE TO THE BOARD IN EACH INSTANCE, WITH THE TERMS AND
CONDITIONS OF THE TRANSACTIONS BEING DESCRIBED.  /10/  EACH WAS
APPROVED BY THE BOARD AND EACH WAS REGARDED AS A MODIFICATION OR
INTERPRETATION OF ITS ANTECEDENT CONTROL ORDERS UNDER SEC. 408.  EACH
OF THESE TRANSACTIONAL ORDERS RECITED A FINDING OF THE BOARD THAT THE
TRANSACTION WAS "JUST AND REASONABLE AND IN THE PUBLIC INTEREST." 
THEN, IN DECEMBER 1960, THE BOARD ISSUED AN ORDER APPROVING A MAJOR
PROPOSAL BY TWA FOR THE ACQUISITION OF JET EQUIPMENT, WHICH AMONG OTHER
THINGS INVOLVED FUNDAMENTAL CHANGES IN RELATIONSHIP BETWEEN TWA AND
TOOLCO IN THAT THE STOCK OF THE FORMER, AT THE INSISTENCE OF THE
FINANCIAL INSTITUTIONS INVOLVED IN THE PROGRAM, WAS TO BE PLACED IN A
VOTING TRUST AND THE COMPANY'S BOARD OF DIRECTORS RECONSTITUTED.  32
C.A.B. 1363.  THE DOMINANT POSITION OF TOOLCO THUS ENDED FOR THE PERIOD
OF THE TRUSTEESHIP.  IN THE COURSE OF ITS OPINION ACCOMPANYING THE
ORDER, THE BOARD STATED THAT ALTHOUGH IT HAD NOT BEEN OFFICIALLY
INFORMED OF THE REASONS FOR THE BANKS' INSISTENCE ON THE VOTING TRUST,
IT WAS NOT "UNAWARE OF TWA'S PROBLEMS."  ID., AT 1364.  THE BOARD KNEW,
BECAUSE IT WAS A MATTER OF PUBLIC RECORD, THAT TWA HAD BEEN DELAYED IN
FINANCING ITS JET FLEET AND THE BOARD'S OPINION WAS THAT TWA HAD
PROBABLY SUFFERED BECAUSE MORE ATTRACTIVE FINANCING TERMS WERE NO
LONGER AVAILABLE AND BECAUSE THE UNAVAILABILITY OF EQUIPMENT MAY HAVE
CONTRIBUTED TO THE COMPANY'S FAILURE TO MAINTAIN ITS NORMAL SHARE OF
THE TRANSPORTATION MARKET.  "UNDER THESE CIRCUMSTANCES" THE BOARD SAID,
"WE THINK IT CLEAR THAT BOARD ACTION TO FACILITATE TWA'S ACQUISITION OF
JET EQUIPMENT IS IN THE PUBLIC INTEREST.  AT THE SAME TIME, HOWEVER, IT
IS EVIDENT THAT TOOLCO'S CONTROL OF TWA, AS EXERCISED THROUGH HUGHES,
HAS PRESENTED SUBSTANTIAL PROBLEMS REQUIRING THE BOARD'S ATTENTION." 
ID., AT 1365.  THE BOARD WENT ON TO MAKE CLEAR THAT ITS APPROVAL WOULD
BE REQUIRED BEFORE TOOLCO WOULD BE PERMITTED TO REASSUME CONTROL OVER
TWA AND THAT ANY SUCH APPROVAL WOULD BE FORTHCOMING ONLY AFTER A MOST
"SEARCHING INQUIRY" INTO THE PUBLIC INTEREST FACTORS INVOLVED.  /11/
IBID. 

IT WAS SIX MONTHS LATER THAT TWA, NOW NO LONGER UNDER CONTROL OF
TOOLCO, FILED SUIT AGAINST THE LATTER ALLEGING VIOLATIONS OF THE
ANTITRUST LAWS TO THE INJURY OF TWA'S BUSINESS.  AS ANALYZED BY THE
COURT OF APPEALS IN ITS OPINIONS FILED IN THIS CASE, THE COMPLAINT
RESTED PRINCIPALLY ON TOOLCO'S CONDUCT AS CONTROLLING STOCKHOLDER
DURING THE YEARS 1955-1960.  THE ASSERTIONS WERE THAT IN 1955 THE
COMMERCIAL AIR INDUSTRY WAS CONVERTING TO JET AIRCRAFT, AND THAT TWA'S
COMPETITORS BEGAN IN THAT YEAR "TO AID IN THE DEVELOPMENT OF AND TO
PURCHASE JET PLANES."  332 F.2D 602, 605.  TOOLCO AND GENERAL DYNAMICS
CORP. (CONVAIR) HAD ENTERED INTO AN AIRRANGEMENT FOR THE JOINT
DEVELOPMENT OF A SUITABLE AIRCRAFT BUT THE PLAN PROVED ABORTIVE,
WHEREUPON TOOLCO CONSIDERED BUT ULTIMATELY ABANDONED A PLAN FOR ITSELF
TO ENTER AIRCRAFT PRODUCTION.  MEANWHILE, TOOLCO HAD ARRANGED FOR THE
PURCHASE OF JET AIRCRAFT FROM CONVAIR AND BOEING, THE ARRANGEMENTS
PROVIDING THAT TOOLCO COULD ASSIGN ITS RIGHTS TO SUCH AIRCRAFT TO TWA. 

AS RESPECTS ITS DEFENSE THAT CAB CONTROL AND SURVEILLANCE GAVE IT
IMMUNITY FROM THE ANTITRUST SUIT, TOOLCO RELIES ON PAN AMERICAN WORLD
AIRWAYS V. UNITED STATES, 371 U.S. 296.  THE COURT OF APPEALS
DISTINGUISHED THAT CASE, SAYING THAT THERE THE UNLAWFUL DIVISION OF
TERRITORIES AND ALLOCATION OF ROUTES WERE DIRECTLY "WITHIN THE AMBIT OF
POWERS EXPLICITLY GRANTED THE BOARD BY THE CONGRESS," 332 F.2D, AT
608.  THE COURT OF APPEALS SAID THAT THE PRESENT CASE WAS DIFFERENT
BECAUSE, IN ITS VIEW, THE CONTINUING SUPERVISION OF THE BOARD OVER THE
TOOLCO-TWA RELATIONSHIP WAS GENERAL AND NOT RELATED TO SPECIFIC CONDUCT
THAT GAVE RISE TO VIOLATIONS OF THE ANTITRUST LAWS. 

THE TRANSACTIONS ON THE BASIS OF WHICH DAMAGES WERE AWARDED WERE
BASED PRIMARILY ON PROFITS LOST AS A RESULT OF FIVE TRANSACTIONS
RELATING TO ORDERS PLACED BY TOOLCO FOR A FLEET OF 63 JET AIRCRAFT
DESINTED FOR USE BY TWA.  449 F.2D, AT 65-66: 

(1) THE DIVERSION OF SIX CONVAIRS BY TOOLCO TO NORTHEAST AIRLINES; 

(2) THE TEMPORARY RETENTION BY TOOLCO OF FOUR OTHER CONVAIRS AND
THEIR ULTIMATE LEASE TO NORTHEAST AIRLINES; 

(3) THE DIVERSION OF SIX BOEING JETS OUT OF 33 ORDERED TO PAN AMERICAN
AIRWAYS; 

(4) THE LEASE, INSTEAD OF OUTRIGHT SALES, OF JETS IN 1959-1960; AND 

(5) THE LATE DELIVERY OF 47 OF THE 63 JETS. 

ONE DIFFICULTY WITH THE CONCLUSION OF THE COURT OF APPEALS THAT
THESE TRANSACTIONS, UNLIKE THOSE INVOLVED IN THE PAN AMERICAN CASE,
WERE TRANSACTIONS ON WHICH THE BOARD MIGHT TAKE ACTION BUT DID NOT DO
SO, IS THAT IT MISCONSTRUES THE RECORD.  AS NOTED, FROM 1944 THROUGH
1960 EVERY ACQUISITION OR LEASE OF AIRCRAFT BY TWA FROM TOOLCO AND EACH
FINANCING OF TWA BY TOOLCO REQUIRED BOARD APPROVAL.  EACH TRANSACTION
WAS APPROVED BY THE BOARD AND EACH APPROVAL WAS AN ORDER UNDER SEC.
408, FOR THE BOARD REGARDED ITS TRANSACTIONAL ORDERS AS MODIFICATIONS
OR INTERPRETATIONS OF ITS ANTECEDENT CONTROL ORDER.  EACH OF THE
MODIFICATION ORDERS RECITED A FINDING OF THE BOARD THAT THE
TRANSACTIONS WERE "JUST AND REASONABLE AND IN THE PUBLIC INTEREST." 

IT IS SAID, HOWEVER, THAT WHILE THE BOARD MODIFIED ITS ORIGINAL
"CONTROL" ORDER UNDER SEC. 408 SO AS TO PERMIT SALE OR LEASE OF THE
AIRCRAFT OUT OF WHICH THE ALLEGED ANTITRUST VIOLATIONS OCCURRED, THE
APPROVAL OF THE BOARD DID NOT SANCTION THE PRECISE WAY IN WHICH TOOLCO
ALLEGEDLY USED THE POWER TO THE DISADVANTAGE OF TWA.  BUT THAT IS NOT
AN ANSWER TO THE PROBLEM OF EXEMPTION. 

THE FEDERAL AVIATION ACT AS CONSTRUED AND APPLIED BY THIS COURT AND
THE CIVIL AERONAUTICS BOARD DICTATES A CONTRARY RESULT. 

IN PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, SUPRA, THE UNITED
STATES BROUGHT A CIVIL ANTITRUST ACTION UNDER SECS. 1, 2, AND 3 OF THE
SHERMAN ACT CHALLENGING THE JOINT CONTROL OF PANAGRA, AN AIR CARRIER,
BY PAN AMERICAN AIRWAYS AND W. R. GRACE & CO. THE ALLEGATIONS WERE THAT
PAN AMERICAN, GRACE, AND PANAGRA HAD DIVIDED TERRITORIES, THAT PAN
AMERICAN AND GRACE HAD CONSPIRED TO MONOPOLIZE AIR TRANSPORTATION ON
THE WEST COAST OF SOUTH AMERICA, AND THAT PAN AMERICAN HAD USED ITS
POWER TO PREVENT PANAGRA FROM EXTENDING ITS ROUTES FROM THE CANAL ZONE
TO THE UNITED STATES.  THE DISTRICT COURT FOUND NO DIVISION OF
TERRITORIES AND NO CONSPIRACY BETWEEN GRACE AND PAN AMERICAN BUT
CONCLUDED THAT PAN AMERICAN HAD VIOLATED THE SHERMAN ACT IN INTERFERING
WITH PANAGRA'S POSSIBLE ROUTE EXTENSION.  ON CROSS APPEALS BY PAN
AMERICAN AND THE UNITED STATES, THIS COURT HELD THAT THE COMPLAINT
SHOULD HAVE BEEN DISMISSED BECAUSE SEC. 411 OF THE ACT GAVE THE CAB
BROAD POWER TO INVESTIGATE AND BRING TO A HALF UNFAIR PRACTICES AND
UNFAIR METHODS OF COMPETITION, INCLUDING THOSE ALLEGED IN THE
COMPLAINT, AND BECAUSE IF THE COURTS WERE TO INTRUDE INDEPENDENTLY WITH
THEIR OWN CONSTRUCTION OF THE ANTITRUST LAWS THE TWO REGIMES MIGHT
COLLIDE.  HENCE, RELIEF AGAINST THE ALLEGED DIVISION OF TERRITORIES,
ALLOCATION OF ROUTES, AND CONSPIRACY TO MONOPOLIZE WAS A MATTER
EXCLUSIVELY FOR THE BOARD.  THE COURT ALSO POINTED OUT THAT UNDER SEC.
414 OF THE ACT, BOARD ORDERS CARRIED ANTITRUST IMMUNITY FOR ANY CONDUCT
AUTHORIZED, APPROVED, OR REQUIRED BY THE ORDER AND THAT IT WOULD BE ODD
TO HOLD THAT AN AFFILIATION BETWEEN AN AIR CARRIER AND OTHERS THAT
WOULD PASS MUSTER UNDER SEC. 408 COULD NEVERTHELESS RUN AFOUL OF THE
ANTITRUST LAWS:  "WHETHER OR NOT TRANSACTIONS OF THAT CHARACTER MEET
THE STANDARDS OF COMPETITION AND MONOPOLY PROVIDED BY THE ACT IS
PECULIARLY A QUESTION FOR THE BOARD, SUBJECT OF COURSE TO JUDICIAL
REVIEW AS PROVIDED IN 49 U.S.C. 1486."  371 U.S.,AT 309. 

AS PREVIOUSLY INDICATED, THE COURT OF APPEALS DID NOT CONSIDER PAN
AMERICAN TO BE RELEVANT OR CONTROLLING BECAUSE, DIFFERENT FROM THE
SITUATION THERE, THE CONDUCT CHALLENGED IN TWA'S COMPLAINT AGAINST
TOOLCO WAS "UNRELATED TO ANY SPECIFIC FUNCTION OF THE CAB" AND HENCE
WAS NOT WITHIN THE EXCLUSIVE COMPETENCE OF THAT BODY.  332 F.2D, AT
608.  THIS VIEW IS DIFFICULT TO SQUARE WITH THE STATUTE AND THE SEVERAL
OPINIONS AND ORDERS ISSUED BY THE BOARD WITH RESPECT TO THE
RELATIONSHIP BETWEEN TOOLCO AND TWA. 

THE ACT EXPRESSLY FORBADE TOOLCO TO ACQUIRE CONTROL OF TWA WITHOUT
APPROVAL OF THE BOARD.  SECTION 408, HOWEVER, DIRECTED THE BOARD TO
APPROVE THE ACQUISITION IF CONSISTENT WITH THE PUBLIC INTEREST AND
EMPOWERED IT TO REMEDY ANY ACQUISITION OF CONTROL BY TOOLCO OBTAINED
OTHERWISE THAN IN ACCORDANCE WITH THE ACT.  IT IS ALSO PERFECTLY CLEAR
THAT IN 1944 THE BOARD APPROVED THE ACQUISITION OF CONTROL OF TWA BY
TOOLCO BY VIRTUE OF A 45.6% STOCK OWNERSHIP AND THAT IN 1948 AND 1950
THE BOARD APPROVED A TRANSACTION THAT COULD HAVE INCREASED TOOLCO'S
HOLDINGS TO 80% AND TRANSFORMED ITS DE FACTO CONTROL INTO FULL LEGAL,
AS WELL AS PRACTICAL, CONTROL. 

IN REACHING THIS CONCLUSION, THE BOARD INQUIRED BROADLY INTO ALL
PHASES OF THE EXERCISE OF TOOLCO'S CONTROL OVER TWA DURING THE YEARS
1944-1947.  IT WAS NOT ONLY PROPER BUT NECESSARY IN DETERMINING WHETHER
FURTHER ACQUISITION OF CONTROL WAS CONSISTENT WITH THE PUBLIC INTEREST
TO EXAMINE "INTO THE ACTIONS AND POLICIES OF THE CONTROLLING COMPANY .
. . (FOR INEVITABLY THE CONTROLLING COMPANY, BY VIRTUE OF ITS
INVESTMENT IN THE ACQUIRED CARRIER, WILL ENDEAVOR TO MAKE ITSELF
ACCOUNTABLE . . . FOR THE MANAGERIAL EFFICIENCY, THE OPERATING ECONOMY,
AND THE FINANCIAL INTEGRITY OF THE CONTROLLED CARRIER."  12 C.A.B.,AT
196.  HENCE, OF MAJOR INTEREST TO THE BOARD WERE THE DECISIONS OF
TOOLCO WITH RESPECT TO THE TYPE, QUANTITY, TIMING, AND FINANCING OF NEW
EQUIPMENT ACQUISITIONS BY TWA.  IT EXAMINED AND DEALT WITH IN GREAT
DETAIL THE ASSERTIONS THAT TOOLCO HAD IMPROPERLY DELAYED THE ARRIVAL OF
NEW EQUIPMENT, HAD INSISTED ON DEBT RATHER THAN EQUITY FINANCING, AND
ITSELF HAD SOLD OR LEASED AIRCRAFT TO TWA.  ALL OF THESE MATTERS, THE
BOARD CONCLUDED, WERE CENTRAL TO PROPER DETERMINATION OF THE ISSUE OF
THE ADDITIONAL CONTROL AND, INDEED, TO THE ADDITIONAL QUESTION BEFORE
THE BOARD AS TO WHETHER THE EXISTING RELATIONSHIP SHOULD HAVE BEEN
COMPLETELY TERMINATED. 

THE POINT IS THAT THE CONDUCT OF TOOLCO WITH WHICH THE BOARD SO
EXTENSIVELY DEALT IN 1950 IS THE SAME KIND OF CONDUCT CHARGED TO TOOLCO
IN THE 1950'S AND ALLEGED BY TWA IN ITS COMPLAINT TO VIOLATE THE
ANTITRUST LAWS.  IT IS, THEREFORE, DIFFICULT TO UNDERSTAND HOW THE
COURT OF APPEALS COULD CONCLUDE THAT THE ACTS OF TOOLCO IN CONTROLLING,
ALLEGEDLY TO THE INJURY OF TWA, THE TIMING, THE FINANCING, AND THE FLOW
OF NEW EQUIPMENT TO TWA WERE UNRELATED TO ANY FUNCTION OF THE BOARD
UNDER THE ACT.  CLEARLY, SUCH CONSIDERATIONS WERE IN THE MAINSTREAM OF
THE BOARD'S SEC. 408 RESPONSIBILITIES TO INSURE THAT ONLY THOSE
ACQUISITIONS OF CONTROL THAT ARE IN THE PUBLIC INTEREST ARE APPROVED. 

NOR IS IT TENABLE TO ARGUE THAT, HOWEVER RELEVANT TOOLCO'S NEW
EQUIPMENT DECISIONS MIGHT HAVE BEEN TO THE PUBLIC-INTEREST STANDARD
MANDATED FOR BOARD APPROVAL OF THE ADDITIONAL CONTROL OBTAINED IN 1947,
THE BOARD'S AUTHORITY NEVERTHELESS TERMINATED WITH THAT APPROVAL AND
THAT THE BOARD, HAVING ISSUED ITS APPROVAL, WAS POWERLESS TO CONTROL OR
OVERSEE ITS EXERCISE IN THE YEARS TO COME.  SECTION 408 PERMITS ONLY
THOSE ACQUISITIONS OF CONTROL THAT ARE NOT INCONSISTENT WITH THE PUBLIC
INTEREST AND THAT WILL NOT RESULT IN A MONOPOLY.  IT ALSO AUTHORIZES
THE BOARD TO APPROVE ACQUISITIONS SUBJECT TO SUCH CONDITIONS AS IT MAY
DEEM DESIRABLE.  SECTION 408(E) EMPOWERS THE BOARD TO INVESTIGATE AND
REMEDY VIOLATIONS OF SEC. 408(A).  IF A CARRIER HAS ACQUIRED CONTROL
"IN ANY MANNER WHATSOEVER" OTHER THAN THAT APPROVED BY THE BOARD, THE
BOARD IS AUTHORIZED EITHER ON COMPLAINT OR ITS OWN INITIATIVE TO
INVESTIGATE AND IF A VIOLATION IS DISCOVERED IT IS ORDERED TO REMEDY
THAT SITUATION.  SECTION 204(A), 49 U.S.C. 1324(A), AUTHORIZES THE
BOARD TO ISSUE AND AMEND SUCH ORDERS AS IT SHALL DEEM NECESSARY TO
CARRY OUT THE PROVISIONS OF AND TO EXERCISE AND PERFORM ITS POWERS AND
DUTIES UNDER THE STATUTE.  /12/ 

IT SEEMS SUFFICIENTLY APPARENT, THEREFORE, THAT THE BOARD DID NOT
EXHAUST ITS POWERS WITH RESPECT TO TOOLCO'S CONTROL OF TWA WHEN IT
ISSUED ITS ORDER OF APPROVAL IN DOCKET NO. 1182 IN 1944.  OBVIOUSLY,
THE BOARD REMAINED COMPETENT TO ENFORCE OR TO WAIVE THE CONDITIONS
ATTACHED TO THAT ORDER.  IT DID SO MANY TIMES.  SEE N. 10, SUPRA.  IT
ALSO IS CLEAR FROM THE 1948 AND 1950 PROCEEDINGS, WHERE THE BOARD'S
JURISDICTION WAS CHALLENGED, THAT ITS JURISDICTION WAS TRIGGERED NOT
ONLY BY SUBSTANTIAL ADDITIONAL ACQUISITIONS OF STOCK BUT BY ANY CHANGE
IN THE EXTENT OR EFFECTIVENESS OF TOOLCO'S CONTROL OR IN TOOLCO'S
POSITION IN THE AERONAUTICS INDUSTRY.  THE BOARD ALSO IMPLIED THAT HAD
TOOLCO'S EXERCISE OF CONTROL OVER TWA FROM 1942 TO 1947 BEEN
SUFFICIENTLY UNACCEPTABLE TO FORECLOSE THE ADDITIONAL ACQUISITION OF
CONTROL, REOPENING OF DOCKET NO. 1182 AND RE-EXAMINATION OF THE INITIAL
APPROVAL WOULD HAVE BEEN JUSTIFIED. 

WE HAVE LITTLE DOUBT THAT THE AUTHORITY OF THE BOARD, EITHER ON
COMPLAINT OR OWN INITIATIVE, EXTENDED TO FORBIDDING ANY EXERCISE OF
CONTROL BY TOOLCO WHICH WAS NOT AUTHORIZED OR CONTEMPLATED BY THE
INITIAL OR SUBSEQUENT APPROVAL.  THIS SEEMS THE CLEAR IMPORT OF THE ACT
AND OF THE BOARD'S 1948-1950 PROCEEDINGS. 

ALSO INSTRUCTIVE IS THE BOARD'S RESPONSE WHEN ASKED IN 1956 TO
MODIFY ITS ORIGINAL ORDER SO AS TO PERMIT TWA'S PURCHASE OF UP TO 25
JET-POWERED AIRCRAFT FROM TOOLCO.  RECITING THAT ITS PRIOR APPROVALS OF
TOOLCO'S CONTROL OF TWA HAD BEEN PREMISED UPON THE ASSUMPTION THAT
TOOLCO WAS NOT ENGAGED IN THE MANUFACTURE OR SALE OF AIRCRAFT FOR
COMMERCIAL USE, THE BOARD FORTHWITH OPENED AN INVESTIGATION TO
DETERMINE WHETHER TOOLCO'S POSITION IN THE AERONAUTICS INDUSTRY HAD SO
CHANGED AS TO RESULT IN A TRANSACTION SUBJECT TO THE BOARD'S
JURISDICTION UNDER SEC. 408.  THE MOTION FOR WAIVER OF THE 1944
CONDITION WAS CONSOLIDATED WITH THIS NEW PROCEEDING.  THE PROCEEDINGS
WAS LATER CANCELED WHEN THE MOTION TO WAIVE THE 1944 CONDITION WAS
WITHDRAWN, BUT CLEARLY THE BOARD THOUGHT, AND RIGHTLY SO, THAT IT HAD
CONTINUING POWER TO AUDIT THE ONGOING RELATIONSHIP BETWEEN TWA AND
TOOLCO. 

IT IS ALSO DIFFICULT TO READ IN ANY OTHER MANNER THE RECITAL BY THE
CAB, IN THE COURSE OF APPROVAL OF THE 1960 VOTING TRUST ARRANGEMENT, OF
TOOLCO'S ALLEGED CONDUCT IN DELAYING THE DELIVERY OF NEW EQUIPMENT AND
DICTATING THE FINANCING OF SAME, ALL TO TWA'S ALLEGED INJURY, FOLLOWED
BY ITS ASSERTION THAT SUCH CONDUCT "PRESENTED SUBSTANTIAL PROBLEMS
REQUIRING THE BOARD'S ATTENTION."  32 C.A.B.,AT 1365.     IT IS
THEREFORE NO ANSWER TO SAY THAT OUR PAN AMERICAN DECISION DOES NOT
COVER THE ALLEGED ANTITRUST VIOLATIONS INVOLVED IN THE TOOLCO-TWA
TRANSACTIONS FOR WHICH TREBLE DAMAGES WERE SOUGHT.  AS NOTED, SEC.
408(B) STATES THAT THE BOARD SHALL NOT APPROVE ANY "ACQUISITION OF
CONTROL" WHICH WOULD RESULT "IN CREATING A MONOPOLY OR MONOPOLIES AND
THEREBY RESTRAIN COMPETITION OR JEOPARDIZE ANOTHER AIR CARRIER." 
MOREOVER, THE BOARD IN GRANTING PERMISSION TO "CONTROL" AN AIR CARRIER
MUST CONSIDER THE STANDARDS OF THE PUBLIC INTEREST AS DEFINED IN SEC.
102 OF THE ACT.  AMONG SUCH STANDARDS IS THAT SET FORTH IN SEC. 102(C),
WHICH, AS INDICATED, ANTE, AT 368 N. 4, PROVIDES: 

     "THE PROMOTION OF ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE

  BY AIR CARRIERS AT REASONABLE CHARGES, WITHOUT UNJUST

  DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR

 DESTRUCTIVE COMPETITIVE PRACTICES." 

COMPETITION AND MONOPOLY /13/  -- TWO INGREDIENTS OF THE ANTITRUST
LAWS-- ARE THUS STANDARDS GOVERNING THE CAB'S EXERCISE OF AUTHORITY IN
GRANTING, ALLOWING, OR EXPANDING OR CONTRACTING THE CONTROL WHICH
TOOLCO HAD OVER TWA BY REASON OF THE VARIOUS ORDERS ISSUED BY THE CAB
UNDER SEC. 408.  IN THIS CONTEXT, THE AUTHORITY OF THE BOARD TO GRANT
THE POWER TO "CONTROL" AND TO INVESTIGATE AND ALTER THE MANNER IN WHICH
THAT "CONTROL" IS EXERCISED LEADS US TO CONCLUDE THAT THIS PHASE OF CAB
JURISDICTION.  LIKE THE ONE IN THE PAN AMERICAN CASE, PRE-EMPTS THE
ANTITRUST FIELD.  /14/  IT SHOULD BE NOTED IN THAT CONNECTION THAT IN
THE PAN AMERICAN CASE, PAN AMERICAN, WHICH OWNED 50% OF THE STOCK OF
THE AIR CARRIER PANAGRA, WAS CHARGED WITH USING ITS CONTROL TO PREVENT
PANAGRA FROM RECEIVING THE AUTHORITY OF THE CAB TO EXTEND ITS ROUTE
FROM THE CANAL ZONE TO THE UNITED STATES.  THAT RESTRAINT WAS HELD
BEYOND THE REACH OF THE ANTITRUST LAWS EVEN THOUGH THE CAB HAD TAKEN NO
ACTION TO INVESTIGATE, LET ALONE ACT ON, THE ALLEGED MISFEASANCE AS THE
BOARD HAS DONE HERE FOR OVER 16 YEARS. 

WE THINK THE COURT OF APPEALS ERRED ALSO IN CONSTRUING SEC. 414, WHICH
IMMUNIZES FROM ANTITRUST LIABILITY ANY CONDUCT APPROVED, AUTHORIZED, OR
REQUIRED BY ANY BOARD ORDER ISSUED UNDER SEC. 408.  AS WE READ THIS
RECORD, THE BOARD NOT ONLY APPROVED TOOLCO'S OWNERSHIP OF TWA STOCK BUT
IT ALSO CONTEMPLATED ACTUAL AND LEGAL CONTROL OF TWA BY TOOLCO.  THE
BOARD MADE IT AS PLAIN AS POSSIBLE THAT TOOLCO'S STOCK OWNERSHIP WOULD
INEVITABLY RESULT IN TOOLCO'S EXERCISING AUTHORITY OVER THE DAY-TO-DAY
AFFAIRS OF TWA, INCLUDING THE ACQUISITION AND FINANCING OF EQUIPMENT. 
IT WAS PRECISELY THIS KIND OF CONTROL THE BOARD APPROVED.  TOOLCO'S
POWER OF DECISION WITH RESPECT TO THESE MATTERS WAS CENTRAL TO THE
PUBLIC-INTEREST ISSUE.  WHAT IS MORE, THE BOARD NOT ONLY CONCLUDED THAT
TOOLCO'S STEWARDSHIP, ALTHOUGH FAULTY IN SOME RESPECTS, HAD BEEN A
GREAT BENEFIT TO TWA AND TO THE PUBLIC IN YEARS GONE BY, BUT ALSO
DETERMINED THAT THE ADDITIONAL CONTROL SOUGHT BY TOOLCO AND
CONTINUATION OF TWA-TOOLCO RELATIONSHIPS WERE ESSENTIAL TO THE PUBLIC
INTEREST. 

IT IS TOO CLEAR FOR ARGUMENT THAT IN ENTERING THE 1950 ORDER THE
BOARD FULLY REALIZED THAT TOOLCO HAD DETERMINED AND WOULD DETERMINE
WHEN AND HOW MUCH NEW EQUIPMENT WOULD BE PURCHASED, FROM WHOM IT WOULD
BE ACQUIRED, AND HOW IT WOULD BE FINANCED.  IT WAS PRECISELY THIS TYPE
OF ASSOCIATION THAT IT CONTEMPLATED WHEN IT APPROVED THE ADDITIONAL
CONTROL OBTAINED BY TOOLCO IN 1947.  AND IT WAS PRECISELY THIS SAME
CONCLUSION THAT THE BOARD WAS IMPLEMENTING EACH TIME DURING THE 1950'S
THAT IT APPROVED A SALE OR A LEASE OF AN AIRPLANE FROM TOOLCO TO TWA
WHICH, WITHOUT ITS APPROVAL, WOULD HAVE VIOLATED THE BOARD'S ONGOING
LIMITATION ON THE SIZE OF INTERCOMPANY TRANSACTIONS. 

WE REPEAT, HOWEVER, WHAT WE SAID IN THE PAN AMERICAN CASE THAT THE
FEDERAL AVIATION ACT DOES NOT COMPLETELY DISPLACE THE ANTITRUST LAWS. 

"WHILE THE BOARD IS EMPOWERED TO DEAL WITH NUMEROUS ASPECTS OF WHAT
ARE NORMALLY THOUGHT OF AS ANTITRUST PROBLEMS, THOSE EXPRESSLY
ENTRUSTED TO IT ENCOMPASS ONLY A FRACTION OF THE TOTAL."  371 U.S.,AT
305. 

ONE OF THE MOST CONSPICUOUS EXCEPTIONS WOULD BE THE COMBINATION OR
AGREEMENT BETWEEN TWO AIR CARRIERS INVOLVING TRADE RESTRAINTS.  SEE
TIMKEN CO. V. UNITED STATES, 341 U.S. 593, 598. 

THERE MAY BE OTHER EXCEPTIONS.  BUT WHERE, AS HERE, THE CAB
AUTHORIZES CONTROL OF AN AIR CARRIER TO BE ACQUIRED BY ANOTHER PERSON
OR CORPORATION, AND WHERE IT SPECIFICALLY AUTHORIZES AS IN THE PUBLIC
INTEREST SPECIFIC TRANSACTIONS BETWEEN THE PARENT AND THE SUBSIDIARY,
THE WAY IN WHICH THAT CONTROL IS EXERCISED IN THOSE PRECISE SITUATIONS
IS UNDER THE SURVEILLANCE OF THE CAB, NOT IN THE HANDS OF THOSE WHO CAN
INVOKE THE SANCTIONS OF THE ANTITRUST LAWS.  AS NOTED, THE PARENT
COMPANY WHICH CONTROLS AN AIR CARRIER IS SUBJECT TO PERVASIVE CONTROL
BY THE CAB.  THE CONTROL WHICH THE CAB IS AUTHORIZED TO GRANT OR TO
DENY UNDER SEC. 408 INVOLVES AN APPRAISAL OF THE IMPACT OF THAT CONTROL
IN TERMS OF MONOPOLY AND COMPETITION; AND THE ONGOING SUPERVISION
ENTRUSTED TO THE CAB BY SEC. 415 IS BROAD ENOUGH TO PUT ALL
TRANSACTIONS BETWEEN PARENT AND SUBSIDIARY-- AS ORIGINALLY CONCEIVED OR
SUBSEQUENTLY EXERCISED-- UNDER CAB SUPERVISION. 

WE CANNOT BELIEVE THAT IF THE DAY AFTER THE BOARD'S ORDER OF 1950, A
MINORITY STOCKHOLDER HAD INSTITUTED A DERIVATIVE ANTITRUST SUIT AGAINST
TOOLCO, ALLEGING THAT TOOLCO HAD MONOPOLIZED THE TWA MARKET FROM 1944
TO 1950, DELAYED DELIVERIES OF AIRCRAFT, AND INSISTED ON IMPROVIDENT
FINANCING ARRANGEMENTS, SUCH A SUIT COULD HAVE SURVIVED A MOTION TO
DISMISS BASED ON SEC. 414.  SUCH AN ACTION WOULD HAVE SOUGHT TO NEGATE
WHAT THE BOARD, AFTER FULL INVESTIGATION, HAD FOUND CONSISTENT WITH
SEC. 408'S ANTI-MONOPOLY PROVISION, CONSISTENT WITH SEC. 102'S
COMPETITION STANDARD, AND CONSISTENT WITH THE PUBLIC INTEREST. 

TWA'S SUIT IN 1961 CARRIES NO BETTER CREDENTIALS, FOR IT SOUGHT TO
TERMINATE A RELATIONSHIP THE CONTINUATION OF WHICH THE BOARD HAD FOUND
ESSENTIAL TO BOTH TWA AND THE PUBLIC INTEREST AND TO PENALIZE THE TYPE
OF CONDUCT WHICH THE BOARD EXPRESSLY CONTEMPLATED AND PREFERRED WOULD
CONTINUE UNLESS AND UNTIL A DIFFERENT ORDER FROM THE BOARD WAS
FORTHCOMING. 

IT ADDS NOTHING TO THE ANALYSIS TO CHARACTERIZE TOOLCO'S EXERCISE OF
POWER OVER TWA AS MONOPOLIZATION OF THE TWA MARKET, FOR IT WAS
PRECISELY SUCH CONTROL THAT THE BOARD OPTED FOR IN 1944 AND 1950. 
MOREOVER, A CONDITION OF THE ORDER WAS THAT TOOLCO'S SALES TO TWA COULD
NOT ASSUME MORE THAN NEGLIGIBLE PROPORTIONS WITHOUT IN EVERY INSTANCE
THE BOARD'S APPROVING THE TRANSACTION AS BEING CONSISTENT WITH THE
PUBLIC INTEREST.  NOR DOES IT ADD TO THE ARGUMENT TO DESCRIBE TOOLCO'S
CONDUCT AS FURTHERING A TYING OR EXCLUSIVE-DEALING ARRANGEMENT OR AS A
CONSPIRACY TO RESTRAIN TRADE IN THAT MARKET REPRESENTED BY TWA. 

THE SHORT OF IT IS THAT IN OUR VIEW SECS. 408 AND 414 OF THE ACT, AS
CONSTRUED IN PAN AMERICAN, REQUIRE REVERSAL OF THE COURT OF APPEALS AND
DISMISSAL OF THIS ACTION.  WHAT TWA CHARGED IN ITS COMPLAINT WAS NO
MORE THAN THE KIND OF CONDUCT THE CAB IN 1950 HAD APPROVED AND
AUTHORIZED FOR THE FUTURE; AND, IN ANY EVENT, SUCH CONDUCT WAS WITHIN
THE POWER OF THE BOARD TO CONTROL AND WAS CENTRAL TO THE MANDATE OF
SEC. 408 TO PERMIT CONTROL OF TWA BY TOOLCO ONLY IF CONSISTENT WITH THE
PUBLIC INTEREST. 

WE BY NO MEANS HOLD THAT THE FEDERAL AVIATION ACT COMPLETELY
DISPLACES THE ANTITRUST LAWS.  PAN AMERICAN, 371 U.S.,AT 305.  BUT
WHERE, AS HERE, THE CAB AUTHORIZES CONTROL OF AN AIR CARRIER TO BE
ACQUIRED BY ANOTHER PERSON OR CORPORATION, AND WHERE THE CAB
SPECIFICALLY AUTHORIZES AS IN THE PUBLIC INTEREST SPECIFIC TRANSACTIONS
BETWEEN THE PARENT AND THE SUBSIDIARY, THE WAY IN WHICH THAT CONTROL IS
EXERCISED IN THOSE PRECISE SITUATIONS IS UNDER THE SURVEILLANCE OF THE
CAB, NOT IN THE HANDS OF THOSE WHO CAN INVOKE THE SANCTIONS OF THE
ANTITRUST LAWS.  THE CONTROL WHICH THE CAB IS AUTHORIZED TO GRANT OR TO
DENY UNDER SEC. 408 INVOLVES AN APPRAISAL OF THE IMPACT OF THAT CONTROL
IN TERMS OF MONOPOLY AND COMPETITION; AND THE ONGOING SUPERVISION
ENTRUSTED TO THE CAB BY SEC. 415 IS BROAD ENOUGH TO PUT ALL
TRANSACTIONS BETWEEN PARENT AND SUBSIDIARY-- AS ORIGINALLY CONCEIVED OR
SUBSEQUENTLY EXERCISED-- UNDER CAB SUPERVISION. 

THIS CONCLUSION NECESSITATES A DISMISSAL OF THE CROSS-PETITION, A
REVERSAL OF THE JUDGMENT BELOW, AND A REMAND WITH DIRECTIONS TO DISMISS
THE COMPLAINT, AS THE NUMEROUS OTHER POINTS BRIEFED AND ARGUED BECOME
IRRELEVANT IN THAT POSTURE OF THE LITIGATION. 

              REVERSED. 

/1/  TOGETHER WITH NO. 71-830, TRANS WORLD AIRLINES, INC. V. HUGHES
TOOL CO. ET AL., ON CERTIORARI TO THE SAME COURT. 

/1A/  THE DISTRICT COURT'S JUDGMENT ON ENTRY OF A DEFAULT AND
CERTIFYING A CONTROLLING QUESTION OF LAW IS REPORTED AT 32 F.R.D. 604. 
THE COURT OF APPEALS AFFIRMED, 332 F.2D 602.  WE GRANTED CERTIORARI,
379 U.S. 912, BUT AFTER ARGUMENT DISMISSED THE WRIT AS IMPROVIDENTLY
GRANTED.  380 U.S. 248.  MOREOVER, OUR DISMISSAL AS IMPROVIDENTLY
GRANTED WAS IN 1965 AND INVOLVED THE 1964 JUDGMENT OF THE COURT OF
APPEALS.  IN 1971 A DIFFERENT PANEL OF THE COURT OF APPEALS RULED THAT
ITS 1964 DECISION WAS NOT BINDING.  IT NOTED THAT PRIOR TO ITS 1971
DECISION THERE HAD BEEN NO "FINAL JUDGMENT" WITH RESPECT TO THE MERITS
OF TWA'S CAUSE OF ACTION AGAINST TOOLCO AND THEREFORE RES JUDICATA DID
NOT APPLY.  449 F.2D 51, 58.  IT WENT ON TO SAY THAT COLLATERAL
ESTOPPEL LIKEWISE DID NOT APPLY, SINCE THE ONLY RELEVANT ISSUE THAT WAS
ACTUALLY LITIGATED AND DETERMINED IN THE 1964 APPEAL WAS THAT THE
DISTRICT COURT "PROPERLY ENTERED THE DEFAULT ON TOOLCO'S
COUNTERCLAIMS."  IBID.  THAT ISSUE, IT SAID, WAS "A SHARPLY
DISTINGUISHABLE ISSUE FROM THE PROPRIETY OF A DIFFERENT DEFAULT
JUDGMENT IN FAVOR OF TOOLCO'S ADVERSARY."  IBID. 

NO PARTY HAS SUGGESTED THAT OUR PRIOR DISMISSAL FORECLOSES US FROM
REACHING THE ISSUE NOW PRESENTED. 

THE PRIOR DISMISSAL DID NOT ESTABLISH THE LAW OF THE CASE OR AMOUNT
TO RES JUDICATA ON THE POINTS RAISED.  INDIANAPOLIS V. CHASE NATIONAL
BANK, 314 U.S. 63 (1941), WAS A DIVERSITY ACTION IN WHICH THE DISTRICT
COURT, AFTER REALIGNING THE PARTIES, DISMISSED THE ACTION FOR WANT OF
JURISDICTION.  THE COURT OF APPEALS REVERSED AND THIS COURT DENIED
CERTIORARI.  TWO YEARS LATER, AFTER THE COURT OF APPEALS SUSTAINED
PLAINTIFF'S CLAINS ON THE MERITS, CERTIORARI WAS GRANTED AND THIS COURT
REVERSED, HOLDING THAT PROPER REALIGNMENT "PRECLUDES ASSUMPTION OF
JURISDICTION BASED UPON DIVERSITY OF CITIZENSHIP."  314 U.S.,AT 74. 
SIMILARLY, IN MERCER V. THERIOT, 377 U.S. 152 (1964), A DIVERSITY
ACTION FOR WRONGFUL DEATH, CERTIORARI WAS INITIALLY DENIED AFTER THE
COURT OF APPEALS HAD SET ASIDE A JURY VERDICT ON THE GROUNDS OF VARIOUS
TRIAL ERRORS AND INSUFFICIENCY OF THE EVIDENCE.  ON REMAND, THE
DISTRICT COURT DENIED A MOTION FOR A NEW TRIAL AND THE COURT OF APPEALS
AFFIRMED.  WE THEN GRANTED CERTIORARI AND REVERSED BECAUSE THE TRIAL
ERRORS DID NOT AFFECT SUBSTANTIAL RIGHTS AND THE EVIDENCE AT THE TRIAL
WAS SUFFICIENT TO SUSTAIN A VERDICT IN PETITIONER'S FAVOR.  SEE ALSO
HANOVER SHOE V. UNITED SHOE MACHINERY CORP., 392 U.S. 481, 488 N. 6
(1968). 

FOR THE WELL-SETTLED VIEW THAT DENIAL OF CERTIORARI IMPARTS NO
IMPLICATION OR INFERENCE CONCERNING THE COURT'S VIEW OF THE MERITS, SEE
MARYLAND V. BALTIMORE RADIO SHOW, 338 U.S. 912, 919 (FRANKFURTER, J.). 

/2/  SEE 449 F.2D, AT 71. 

/3/  SECTION 408, 72 STAT. 767, AS AMENDED, 49 U.S.C. 1378, READS IN
PERTINENT PART AS FOLLOWS: 

"(A) PROHIBITED ACTS. 

"IT SHALL BE UNLAWFUL UNLESS APPROVED BY ORDER OF THE BOARD AS
PROVIDED IN THIS SECTION--

        .          .          .      . 

"(2) FOR ANY AIR CARRIER, ANY PERSON CONTROLLING AN AIR CARRIER, ANY
OTHER COMMON CARRIER, OR ANY PERSON ENGAGED IN ANY OTHER PHASE OF
AERONAUTICS, TO PURCHASE, LEASE, OR CONTRACT TO OPERATE THE PROPERTIES,
OR ANY SUBSTANTIAL PART THEREOF, OF ANY AIR CARRIER;

        .          .          .    . 

"(5) FOR ANY AIR CARRIER OR PERSON CONTROLLING AN AIR CARRIER, ANY
OTHER COMMON CARRIER, ANY PERSON ENGAGED IN ANY OTHER PHASE OF
AERONAUTICS, OR ANY OTHER PERSON TO ACQUIRE CONTROL OF ANY AIR CARRIER
IN ANY MANNER WHATSOEVER:  PROVIDED, THAT THE BOARD MAY BY ORDER EXEMPT
ANY SUCH ACQUISITION OF A NONCERTIFICATED AIR CARRIER FROM THIS
REQUIREMENT TO THE EXTENT AND FOR SUCH PERIODS AS MAY BE IN THE PUBLIC
INTEREST;

.          .          .          . 

"(B) APPLICATION TO BOARD; HEARING; APPROVAL; DISPOSAL WITHOUT
HEARING. 

"ANY PERSON SEEKING APPROVAL OF A CONSOLIDATION, MERGER, PURCHASE,
LEASE, OPERATING CONTRACT, OR ACQUISITION OF CONTROL, SPECIFIED IN
SUBSECTION (A) OF THIS SECTION, SHALL PRESENT AN APPLICATION TO THE
BOARD, AND THEREUPON THE BOARD SHALL NOTIFY THE PERSONS INVOLVED IN THE
CONSOLIDATION, MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR
ACQUISITION OF CONTROL, AND OTHER PERSONS KNOWN TO HAVE A SUBSTANTIAL
INTEREST IN THE PROCEEDING, OF THE TIME AND PLACE OF A PUBLIC HEARING. 
UNLESS, AFTER SUCH HEARING, THE BOARD FINDS THAT THE CONSOLIDATION,
MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR ACQUISITION OF CONTROL
WILL NOT BE CONSISTENT WITH THE PUBLIC INTEREST OR THAT THE CONDITIONS
OF THIS SECTION WILL NOT BE FULFILLED, IT SHALL BY ORDER APPROVE SUCH
CONSOLIDATION, MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR
ACQUISITION OF CONTROL, UPON SUCH TERMS AND CONDITIONS AS IT SHALL FIND
TO BE JUST AND REASONABLE AND WITH SUCH MODIFICATIONS AS IT MAY
PRESCRIBE:  PROVIDED, THAT THE BOARD SHALL NOT APPROVE ANY
CONSOLIDATION, MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR
ACQUISITION OF CONTROL WHICH WOULD RESULT IN CREATING A MONOPOLY OR
MONOPOLIES AND THEREBY RESTRAIN COMPETITION OR JEOPARDIZE ANOTHER AIR
CARRIER NOT A PARTY TO THE CONSOLIDATION, MERGER, PURCHASE, LEASE,
OPERATING CONTRACT, OR ACQUISITION OF CONTROL . . . . "     IN 1969,
SEC. 408(A)(5) WAS AMENDED TO INCLUDE "ANY OTHER PERSON"  ACQUIRING
CONTROL OF AN AIR CARRIER. 

/4/  SECTION 102, 49 U.S.C. 1302, READS: 

"IN THE EXERCISE AND PERFORMANCE OF ITS POWERS AND DUTIES UNDER THIS
CHAPTER, THE BOARD SHALL CONSIDER THE FOLLOWING, AMONG OTHER THINGS, AS
BEING IN THE PUBLIC INTEREST, AND IN ACCORDANCE WITH THE PUBLIC
CONVENIENCE AND NECESSITY: 

"(A) THE ENCOURAGEMENT AND DEVELOPMENT OF AN AIR-TRANSPORTATION
SYSTEM PROPERLY ADAPTED TO THE PRESENT AND FUTURE NEEDS OF THE FOREIGN
AND DOMESTIC COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND
OF THE NATIONAL DEFENSE; 

"(B) THE REGULATION OF AIR TRANSPORTATION IN SUCH MANNER AS TO
RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF, ASSURE THE HIGHEST
DEGREE OF SAFETY IN, AND FOSTER SOUND ECONOMIC CONDITIONS IN, SUCH
TRANSPORTATION, AND TO IMPROVE THE RELATIONS BETWEEN, AND COORDINATE
TRANSPORTATION BY, AIR CARRIERS; 

"(C) THE PROMOTION OF ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE BY
AIR CARRIERS AT REASONABLE CHARGES, WITHOUT UNJUST DISCRIMINATIONS,
UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR DESTRUCTIVE COMPETITIVE
PRACTICES; 

"(D) COMPETITION TO THE EXTENT NECESSARY TO ASSURE THE SOUND
DEVELOPMENT OF AN AIR-TRANSPORTATION SYSTEM PROPERLY ADAPTED TO THE
NEEDS OF THE FOREIGN AND DOMESTIC COMMERCE OF THE UNITED STATES, OF THE
POSTAL SERVICE, AND OF THE NATIONAL DEFENSE; 

"(E) THE PROMOTION OF SAFETY IN AIR COMMERCE; AND 

"(F) THE PROMOTION, ENCOURAGEMENT, AND DEVELOPMENT OF CIVIL
AERONAUTICS." 

/5/  SECTION 414, 49 U.S.C. 1384, READS: 

"ANY PERSON AFFECTED BY ANY ORDER MADE UNDER SECTIONS 1378, 1379, OR
1382 OF THIS TITLE SHALL BE, AND IS HEREBY, RELIEVED FROM THE
OPERATIONS OF THE 'ANTITRUST LAWS,' AS DESIGNATED IN SECTION 12 OF
TITLE 15, AND OF ALL OTHER RESTRAINTS OR PROHIBITIONS MADE BY, OR
IMPOSED UNDER, AUTHORITY OF LAW, INSOFAR AS MAY BE NECESSARY TO ENABLE
SUCH PERSON TO DO ANYTHING AUTHORIZED, APPROVED, OR REQUIRED BY SUCH
ORDER." 

SEE ALSO SECS. 1002(B), (C), OF THE ACT, 49 U.S.C. 1482(B), (C). 

/6/  THE BOARD'S PUBLIC COUNSEL HAD OPPOSED SUCH A CONDITION ON
APPROVAL AS "IMPOSING FAR TOO GREAT A BURDEN UPON THE BOARD TO ASK IT
TO PASS UPON THE WISDOM AND PROPRIETY, IN BOTH A TECHNICAL AND BUSINESS
WAY, OF EVERY BARGAIN MADE BY A CARRIER FOR THE PURCHASE OF EQUIPMENT
FROM A PARTICULAR MANUFACTURER."  BRIEF FOR EXAMINER 25 (FILED APR. 22,
1944).  PUBLIC COUNSEL'S ALTERNATIVE PROPOSED CONDITION REQUIRED TOOLCO
TO FORFEIT CONTROL IN THE EVENT TOOLCO SHOULD MANUFACTURE OR SELL
CERTAIN COMMERCIAL AIRCRAFT OR HUGHES "SHOULD ATTEMPT TO INFLUENCE TWA
WITH REGARD TO THE PURCHASE, ACCEPTANCE, OR USE BY IT OF ANY AIRCRAFT
OR AIRCRAFT PARTS IN THE DEVELOPMENT OR DESIGN OF WHICH HE HIMSELF MAY
HAVE PARTICIPATED TO A SUBSTANTIAL DEGREE."  6 C.A.B.,AT 157.  THE
BOARD REJECTED THIS PROPOSAL, REASONING AS FOLLOWS: 

"THE CONDITIONS PROPOSED BY PUBLIC COUNSEL ARE COMPLICATED AND SEEM
TO BE SOMEWHAT INDEFINITE AND DIFFICULT OF ENFORCEMENT.  THE OBJECT OF
ANY CONDITION . . . SHOULD BE TO PROTECT THE PUBLIC INTEREST FROM ANY
IMPROPER COERCION OF THE AIR CARRIER BY A CONTROLLING COMPANY ON
ACCOUNT OF ANY INTEREST WHICH THAT CONTROLLING COMPANY MAY HAVE IN SOME
OTHER PHASE OF AERONAUTICS.  THIS CAN BE ACCOMPLISHED BY A REASONABLE
LIMIT UPON COMMERCIAL TRANSACTIONS BETWEEN THE ACQUIRER AND THE
ACQUIRED WHICH MAY BE HAD WITHOUT FURTHER CONSIDERATION IN THIS
PROCEEDING BY THE BOARD."  IBID. 

/7/  REFERENCES TO THE BOARD'S 1950 OPINION ARE ACTUALLY TO THE
OPINION OF THE TRIAL EXAMINER.  BUT THE BOARD ADOPTED AS ITS OWN "THE
FINDINGS, CONCLUSIONS, AND RECOMMENDED DECISION OF THE EXAMINER"
WITHOUT MODIFICATION.  12 C.A.B. 192, 193. 

/8/  THE EXAMINER FOUND THAT IT WAS "NECESSARY" FOR TOOLCO TO
ACQUIRE AIRCRAFT INITIALLY AND THEN RESELL THEM TO TWA ON A CONDITIONAL
SALES BASIS BECAUSE TWA "COULD NOT HAVE PURCHASED (THE AIRCRAFT)
DIRECTLY WITHOUT THE SPECIFIC CONSENT OF ITS PRINCIPAL CREDITORS."  12
C.A.B.,AT 218. 

/9/  FOR EXAMPLE, THE EXAMINER FOUND THAT: 

"EVEN BEFORE TWA'S FINANCIAL CRISIS OF LATE 1946, THE FINANCIAL
RESOURCES OF TOOLCO WERE USED TO PROVIDE CREDIT FOR THE CARRIER.  FOR
EXAMPLE, THE CREDIT ARRANGEMENTS PROVIDED BY TOOLCO MADE POSSIBLE THE
PLACING OF THE ORIGINAL ORDER FOR THE CONSTELLATION AIRPLANE WITH THE
OLOCKHEED AIRCRAFT CORPORATION.  THERE IS LITTLE DOUBT THAT THE
CONSTELLATION WOULD NOT HAVE BEEN DEVELOPED AS EARLY AS IT HAD WITHOUT
THE AID OF MR. HUGHES AND HIS COMPANY.  IN ADDITION TO THE TECHNICAL
ASSISTANCE FROM MR. HUGHES AND HIS ENGINEERS IN TOOLCO, THE FINANCIAL
COMMITMENT WHICH WAS NECESSARY TO UNDERTAKE AND CONTINUE THE PROJECT
COULD NEVER HAVE BEEN MADE AND MET BY TWA."  12 C.A.B.,AT 216. 

/10/  FOR EXAMPLE:  ON MAY 15, 1959, THE BOARD AUTHORIZED TOOLCO TO
LEAST 11 BOEING JETS AND 30 SPARE JET ENGINES TO TWA.  THE BOARD
REQUIRED THAT A SEPARATE LEASE BE EXECUTED FOR EACH AIRCRAFT AND
MODIFIED THE PREVIOUS ORDER UNDER SEC. 408 TO PERMIT AIRCRAFT LEAST
TRANSACTIONS BETWEEN TWA AND TOOLCO AND TO AUTHORIZE AN AGREEMENT
COVERING $3 1/2 MILLION WORTH OF SPARE PARTS. 

ON JULY 1, 1959, TOOLCO ASKED THAT 10 LEASES OF BOEING AIRCRAFT TO
TWA BE MODIFIED SO AS TO PERMIT THE EXTENSION OF THE 10 LEASES UNDER
THE SAME RENTAL UNTIL NO LATER THAN SEPTEMBER 30, 1959, AND TO PERMIT
THE LEASE UNDER IDENTICAL TERMS OF FOUR ADDITIONAL BOEING JETS AND TO
PERMIT THE PURCHASE FROM TOOLCO AT ACTUAL COST OF ADDITIONAL SPARE
PARTS NECESSARY FOR THE OPERATION OF THE LEASED JET AIRLINERS.  THIS
ORDER OF THE BOARD ALSO CONSTITUTED A MODIFICATION OF THE ORIGINAL
ORDER OF CONTROL GRANTED UNDER SEC. 408. 

ON SEPTEMBER 30, 1959, TOOLCO ASKED PERMISSION TO EXTEND THE LEASES
OF 10 BOEING JETS.  THE EXTENSION WAS TO BE UNDER THE IDENTICAL TERMS
OF THE ORIGINAL LEASES, THE NEW LEASES TO BE TERMINATED BY EITHER PARTY
WITHIN 24 HOURS ON WRITTEN NOTICE.  HERE AGAIN THE BOARD MODIFIED THE
ORIGINAL TRANSACTION UNDER SEC. 408. 

ON JANUARY 29, 1959, TOOLCO ASKED PERMISSION TO LEASE TO TWA ON A
DAY-TO-DAY BASIS UP TO EIGHT BOEING AIRCRAFT AND UP TO EIGHT CONVAIRS,
AND FOR TWA TO PURCHASE FROM TOOLCO AT ACTUAL COST SUCH SPARE PARTS AS
WERE NECESSARY AND SUCH OTHER EQUIPMENT AS MIGHT BE REQUIRED.  HERE
AGAIN THE BOARD ENTERED AN ORDER THAT QUALIFIED ITS ORIGINAL "CONTROL"
ORDER UNDER SEC. 408. 

/11/  IN A FOOTNOTE, THE BOARD AMPLIFIED WHAT IT MEANT BY PUBLIC
INTEREST FACTORS THROUGH REFERENCE TO THE FOLLOWING EXCERPT FROM ITS
1950 DECISION (12 C.A.B.,AT 196): 

"ASIDE FROM ANY UNDESIRABLE INFLUENCE ON AN AIR CARRIER WHICH MIGHT
ARISE BECAUSE OF THE ACQUIRER'S INTEREST IN A GIVEN PHASE OF
AERONAUTICS, AN ACQUIRER OF AN AIR CARRIER IS NOT WITHOUT
RESPONSIBILITY IN OTHER RESPECTS FOR AN AIR CARRIER'S GENERAL CAPACITY
TO PERFORM ITS PUBLIC RESPONSIBILITIES.  FOR INEVITABLY THE CONTROLLING
COMPANY, BY VIRTUE OF ITS INVESTMENT IN THE ACQUIRED CARRIER, WILL
ENDEAVOR TO MAKE ITSELF ACCOUNTABLE . . . FOR THE MANAGERIAL
EFFICIENCY, THE OPERATING ECONOMY, AND THE FINANCIAL INTEGRITY OF THE
CONTROLLED CARRIER.  ACCORDINGLY, IN DETERMINING WHETHER OR NOT A
PARTICULAR ACQUISITION SHOULD BE APPROVED, IT IS NECESSARY TO CONSIDER
THE OVER-ALL IMPACT OF THE ACQUIRER'S PLANS AND POLICIES WITH RESPECT
TO THE CONTROLLED CARRIER." 

/12/  SEE ALSO SEC. 415 OF THE ACT, 49 U.S.C. 1385, WHICH PROVIDES
THAT: 

"FOR THE PURPOSE OF EXERCISING AND PERFORMING ITS POWERS AND DUTIES
UNDER THIS CHAPTER, THE BOARD IS EMPOWERED TO INQUIRE INTO THE
MANAGEMENT OF THE BUSINESS OF ANY AIR CARRIER AND, TO THE EXTENT
REASONABLY NECESSARY FOR ANY SUCH INQUIRY, TO OBTAIN FROM SUCH CARRIER,
AND FROM ANY PERSON CONTROLLING . . . SUCH AIR CARRIER, FULL AND
COMPLETE REPORTS AND OTHER INFORMATION." 

/13/  THE BOARD IN AN EARLY DECISION REFUSED TO APPROVE A JOINT
AGREEMENT AMONG CARRIERS BECAUSE OF ITS ANTITRUST ASPECTS: 

"AGREEMENTS OF THIS NATURE, WHEREBY A CARRIER OPERATING IN A
PARTICULAR TERRITORY OBTAINS FROM A PROSPECTIVE COMPETITOR AN
UND:RTAKING, EXPRESS OR IMPLIED, NOT TO ATTEMPT COMPETITIVE OPERATIONS,
ARE LIKELY TO TEND TO IMPEDE THE DEVELOPMENT OF COMPETITION TO THE
EXTENT REQUIRED BY THE PRESENT AND FUTURE NEEDS OF THE NATION. 
ACCORDINGLY, WE ARE OF THE OPINION THAT SUCH AGREEMENTS THWART THE
PURPOSES OF THE ACT, AND THAT THEIR FORMATION SHOULD IN GENERAL BE
DISCOURAGED."  PAN AMERICAN AIRWAYS, 3 C.A.B. 540, 546-547. 

/14/  THE PAN AMERICAN CASE IS CONSISTENT WITH THE VIEW EXPRESSED IN
SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S. 341, 360-361, THAT A
STATUTORY SCHEME THAT DOES NOT CREATE A TOTAL EXCEPTION FROM ANTITRUST
LAWS MAY, NONETHELESS, IN PARTICULAR AND DISCRETE INSTANCES BY
IMPLICATION GRANT IMMUNITY FROM AN ANTITRUST CLAIM. 

TO THE SAME EFFECT IS UNITED STATES V. BORDEN CO., 308 U.S. 188,
200, WHERE THE COURT SAID: 

"THAT THE FIELD COVERED BY THE AGRICULTURAL ACT IS NOT COTERMINOUS
WITH THAT COVERED BY THE SHERMAN ACT IS MANIFEST FROM THE FACT THAT THE
FORMER IS THUS DELIMITED BY THE PRESCRIBED ACTION PARTICIPATED IN AND
DIRECTED BY AN OFFICER OF GOVERNMENT PROCEEDING UNDER THE AUTHORITY
SPECIFICALLY CONFERRED BY CONGRESS.  AS TO AGREEMENTS AND ARRANGEMENTS
NOT THUS AGREED UPON OR DIRECTED BY THE SECRETARY, THE AGRICULTURAL ACT
IN NO WAY IMPINGES UPON THE PROHIBITIONS AND PENALTIES OF THE SHERMAN
ACT, AND ITS CONDEMNATION OF PRIVATE ACTION IN ENTERING INTO
COMBINATIONS AND CONSPIRACIES WHICH IMPOSE THE PROHIBITED RESTRAINT
UPON INTERSTATE COMMERCE REMAINS UNTOUCHED." 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN JOINS,
DISSENTING. 

THE HISTORY OF THIS CAUSE IS SO REMARKABLE-- INDEED UNIQUE IN THE
ANNALS OF MODERN FEDERAL JURISPRUDENCE, SO FAR AS I AM AWARE-- THAT I
MUST PREFACE MY DISSENT ON THE MERITS WITH A RECITAL OF THE COURSE OF
THIS LITIGATION OVER NEARLY A DOZEN YEARS.  THIS PROTRACTED LITIGATION,
CONDUCTED AT ENORMOUS COST, NOW COMES TO AN ABRUPT END ON AN ISSUE
DIRECTLY PRESENTED TO THIS COURT NEARLY EIGHT YEARS AGO BUT NOT
DECIDED.  AS THE STRANGE HISTORY WILL DEMONSTRATE, RESOLUTION OF THE
ISSUE WHEN IT WAS FIRST BEFORE THE COURT, AS NOW DECIDED, WOULD HAVE
TERMINATED THIS LITIGATION WITHOUT HAVING THE PARTIES INVEST UNTOLD
EFFORTS AND VAST EXPENSE IN A NOW WHOLLY IRRELEVANT CONTEST OVER THE
PROPER MEASURE OF DAMAGES. 

ON JUNE 30, 1961, TWA FILED A COMPLAINT AGAINST THE HUGHES TOOL CO.
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, CHARGING VIOLATIONS OF THE ANTITRUST LAWS.  ON FEBRUARY 7, 1962,
THE DISTRICT COURT FILED A PRETRIAL ORDER, APPOINTING A SPECIAL MASTER
TO ACT IN DISCOVERY AND DEPOSITION PROCEEDINGS.  AFTER DISCOVERY
PROCEEDED TO AN IMPASSE, ON FEBRUARY 1, 1963, THE DISTRICT COURT
ORDERED HOWARD HUGHES TO APPEAR FOR A DEPOSITION AND ORDERED THE
DEFENDANT TOOLCO TO PRODUCE CERTAIN DOCUMENTS THAT IT HAD PREVIOUSLY
REFUSED TO PRODUCE.  SHORTLY THEREAFTER, ON FEBRUARY 7, 1963, THE
DISTRICT COURT ENTERED A MEMORANDUM OPINION AND ORDER DENYING A MOTION
TO DISMISS TWA'S COMPLAINT.  /1/  IN RESPONSE TO THE ORDER TO PRODUCE
HUGHES FOR EXAMINATION ALONG WITH THE CONTESTED DOCUMENTS, TOOLCO FILED
A "NOTICE OF POSITION," ON FEBRUARY 8, 1963, ADVISING THE DISTRICT
COURT AND TWA THAT IT HAD CHOSEN TO REST ON THE MERITS OF ITS POSITIONS
IN ORDER TO "AVOID THE BURDENS AND EXPENSES INVOLVED IN FURTHER
PRETRIAL AND TRIAL PROCEEDINGS PRIOR TO THE TIME THAT AN APPELLATE
COURT HAS HAD THE OPPORTUNITY TO RULE UPON THE DECISIONS AND ORDERS
HERETOFORE MADE HEREIN." 

THIS "NOTICE OF POSITION" CONSTITUTED A DEFAULT AND ACCORDINGLY
JUDGMENT WAS ENTERED AGAINST TOOLCO, ON MAY 3, 1963.  THE DISTRICT
COURT THEN CERTIFIED TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT THE QUESTION OF THE SUFFICIENCY OF THE COMPLAINT ON
WHICH THE DEFAULT JUDGMENT WAS BASED.  THE ISSUE OF DAMAGES WAS
REFERRED TO THE SPECIAL MASTER.  ON JUNE 2, 1964, THE SECOND CIRCUIT
ISSUED AN OPINION IN WHICH IT DECIDED THAT THE DISTRICT COURT HAD
JURISDICTION OF THE ACTION AND THAT THE ORDERS OF THE CIVIL AERONAUTICS
BOARD AFFECTING THE RELATIONSHIP BETWEEN THE PARTIES DID NOT CONSTITUTE
A GOOD DEFENSE TO THE ANTITRUST CLAIMS OF TWA.  /2/  ON NOVEMBER 16,
1964, THIS COURT GRANTED CERTIORARI TO REVIEW THE JUDGMENT OF THE COURT
OF APPEALS.  /3/  AFTER FULL ARGUMENT AND BRIEFING, BUT WITHOUT
OPINION, THE WRIT WAS DISMISSED AS IMPROVIDENTLY GRANTED ON MARCH 8,
1965, /4/  AND THE CASE RETURNED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS TO DETERMINE THE AMOUNT OF TWA'S DAMAGES. 

FOR NEARLY THREE YEARS, PROCEEDINGS WERE HELD BEFORE THE SPECIAL
MASTER /5/  TO DETERMINE THE APPROPRIATE AMOUNT OF DAMAGES.  ON
DECEMBER 23, 1969, THE DISTRICT COURT FILED A NEW OPINION CONFIRMING A
REPORT OF THE SPECIAL MASTER AWARDING DAMAGES AMOUNTING TO
$137,611,435.95.  /6/  ON APRIL 14, 1970, THE DISTRICT COURT FILED A
SUPERSEDING ORDER IN WHICH IT ADDED TO THE TWA AWARD $7,500,000 AS A
REASONABLE ATTORNEY'S FEE (REPRESENTING SOME 56,000 HOURS OF WORK AT A
"MIXED RATE" OF $128 PER HOUR) AND $336,705.12 IN COSTS, FOR A TOTAL OF
$145,448,141.07, PLUS INTEREST.  THE JUDGMENT WAS STAYED PENDING A
RENEWED APPEAL TO THE COURT OF APPEALS, WHICH, ON SEPTEMBER 1, 1971,
AFFIRMED THE JUDGMENT OF THE DISTRICT COURT, WITH ONLY SLIGHT
MODIFICATION.  /7/ 

THIS COURT AGAIN GRANTED CERTIORARI ON FEBRUARY 22, 1972, /8/  AND
TODAY-- MORE THAN 11 YEARS AFTER IT ALL BEGAN AND MORE THAN SEVEN YEARS
AFTER THE NOW-DETERMINATIVE ISSUE WAS BRUSHED ASIDE BY THIS COURT-- THE
COURT DISCOVERS THAT THE ACTIONS ALLEGED IN TWA'S COMPLAINT WERE
IMMUNIZED FROM THE ANTITRUST LAWS BY THE CIVIL AERONAUTICS BOARD'S ROLE
IN THE TOOLCO-TWA RELATIONSHIP.  THIS, OF COURSE, WAS THE PRECISE ISSUE
TENDERED TO THIS COURT FOR DECISION IN 1964 IN ORDER TO SECURE AN EARLY
DECISION THAT MIGHT END THE CONTEST BEFORE ENORMOUS ADDITIONAL SUMS
WERE EXPENDED IN PROVING DAMAGES RESULTING FROM THE ACTIONS ALLEGED IN
TWA'S COMPLAINT.  /9/     THIS CAPSULE CHRONICLE OF THE PRESENT
LITIGATION BARELY SUGGESTS ITS FACTUAL COMPLEXITY.  TO DESCRIBE THIS
LITIGATION AS A 20TH-CENTURY SEQUEL TO BLEAK HOUSE IS ONLY A SLIGHT
EXAGGERATION.  DICKENS HIMSELF COULD SCARCELY HAVE IMAGINED THAT 56,000
HOURS OF LAWYERING AT A COST OF $7,500,000 WOULD REPRESENT THE VISIBLE
EXPENSES OF ONLY ONE PARTY TO A MODERN INTERCORPORATE CONFLICT, TO SAY
NOTHING OF THE TIME OF CORPORATE AND MANAGEMENT PERSONNEL DIVERTED FROM
THEIR DAILY TASKS.  /10/  INDEED, TODAY'S "ENDING" IS QUITE A SURPRISE-
AS GREAT A SURPRISE FOR SOME OF US AS IT MUST BE FOR THE PARTIES.  I
SUGGEST IT WILL EVEN SURPRISE THE VICTORS, FOR IN THE ORAL ARGUMENT TO
THIS COURT ONLY A FEW FLEETING COMMENTS WERE DEVOTED TO THE POINT THAT
NOW BECOMES THE DISPOSITIVE ISSUE IN THE CASE.  OF COURSE, THIS WAS A
SOUND ALLOCATION BY COUNSEL OF THE LIMITED TIME ALLOWED FOR ARGUMENT
SINCE THE COURT HAD NOT CONSIDERED THE POINT WORTHY OF NOTICE IN 1964
WHEN THE CASE WAS FIRST HERE. 

TO BE SURE, ALL THIS IS SECONDARY TO THE CORRECTNESS OF TODAY'S
DECISION.  I AM UNABLE TO JOIN THE COURT'S DISPOSITION BECAUSE I
BELIEVE IT DEPARTS MARKEDLY FROM OUR PRIOR DECISIONS UNIFORMLY HOLDING
THAT REPEAL OF THE ANTITRUST LAWS TO ACCOMMODATE OTHER FEDERAL
REGULATORY STATUTES "IS TO BE REGARDED AS IMPLIED ONLY IF NECESSARY TO
MAKE THE (REGULATORY SCHEME) WORK, AND EVEN THEN ONLY TO THE MINIMUM
EXTENT NECESSARY."  SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S. 341,
357 (1963).  IN PARTICULAR, THE COURT TODAY SUBSTANTIALLY ENLARGES THE
SCOPE OF PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U.S. 296
(1963), A CASE WHICH THE COURT SAYS "REQUIRES" THE RESULT IT REACHES
TODAY-- NOTWITHSTANDING THAT PAN AMERICAN'S TEACHING WAS AVAILABLE IN
VOLUME 371 OF THE UNITED STATES REPORTS WHEN THE COURT DISMISSED THE
WRIT IN THIS CAUSE AS IMPROVIDENTLY GRANTED. 

        I 

PASSING TO THE MERITS OF THE COURT'S HOLDING, I FIND IT NECESSARY AT
THE OUTSET TO SUPPLEMENT THE COURT'S DESCRIPTION OF THE STATUTORY
FRAMEWORK FROM WHICH THIS LITIGATION ARISES.  SECTION 408 OF THE
FEDERAL AVIATION ACT OF 1958, 49 U.S.C. 1378, /11/  REQUIRES THE
APPROVAL OF THE CAB WHEN ANY PERSON /12/  SEEKS TO ACQUIRE A
CONTROLLING INTEREST IN ANY AIR CARRIER.  THE BOARD MAY APPROVE SUCH
ACQUISITION ONLY IF IT FINDS THAT THE ACQUISITION WILL BE CONSISTENT
WITH THE PUBLIC INTEREST.  SEC. 408(B), 49 U.S.C. 1378(B). 
SPECIFICALLY, THE BOARD "SHALL NOT APPROVE ANY . . . ACQUISITION OF
CONTROL WHICH WOULD RESULT IN CREATING A MONOPOLY OR MONOPOLIES AND
THEREBY RESTRAIN COMPETITION OR JEOPARDIZE ANOTHER AIR CARRIER NOT A
PARTY TO THE . . . ACQUISITION OF CONTROL."  IBID. 

THE ACT FAILS TO ELABORATE ON THE SCOPE OF ITS COMMAND TO THE CAB
NOT TO APPROVE ANY ACQUISITION THAT WOULD CREATE A MONOPOLY AND THEREBY
RESTRAIN COMPETITION.  IN OTHER WORDS, THE ACT FAILS TO SPECIFY THE
RELEVANT MARKET OR MARKETS TO WHICH THE BOARD MUST LOOK IN DETERMINING
WHETHER A PARTICULAR ACQUISITION OR EXERCISE OF CONTROL IS FORBIDDEN. 
TO GUIDE THE BOARD, IS SIMILARLY AMBIGUOUS.  IT INCLUDES AMONG THOSE
FACTORS TO BE WEIGHED IN EVALUATING THE "PUBLIC INTEREST" FACTOR UNDER
THE ACT "(COMPETITION TO THE EXTENT NECESSARY TO ASSURE THE SOUND
DEVELOPMENT OF AN AIR-TRANSPORTATION SYSTEM PROPERLY ADAPTED TO THE
NEEDS OF THE . . . COMMERCE OF THE UNITED STATES . . . . "  AGAIN,
THOUGH, THE QUESTION IS:  COMPETITION BY WHOM?  IN WHICH MARKET OR
MARKETS? 

THERE CAN BE NO DOUBT THE BOARD IS RESPONSIBLE FOR PROMOTING
COMPETITION IN SOME SENSE; OUR INQUIRY IS WHETHER THE BOARD IS CHARGED
WITH FOSTERING COMPETITION BOTH WITHIN THE AIR TRANSPORTATION MARKET
AND WITHOUT, IN OTHER MARKETS ESSENTIALLY UNRELEATED TO AIR
TRANSPORTATION AND ALIEN TO THE PURPOSES FOR WHICH THE BOARD WAS
CREATED.  RESOLUTION OF THIS AMBIGUITY IS CRITICAL TO PROPER
INTERPRETATION OF SEC. 414 OF THE ACT, /14/  WHICH CONFERS ANTITRUST
IMMUNITY UPON "(ANY PERSON AFFECTED BY ANY ORDER MADE UNDER (SEC. 408,
INTER ALIA) . . . INSOFAR AS MAY BE NECESSARY TO ENABLE SUCH PERSON TO
DO ANYTHING AUTHORIZED, APPROVED, OR REQUIRED BY SUCH ORDER."  WHAT IS
"AUTHORIZED, APPROVED, OR REQUIRED" BY THE CAB MUST SURELY BE
DETERMINED, AT LEAST TO A VERY LARGE EXTENT, BY THE SCOPE OF THE
BOARD'S MANDATE TO EVALUATE POTENTIALLY ANTICOMPETITIVE CONDUCT. 

        II 

THE COURT TODAY NEGLECTS TO RESOLVE, OR INDEED EVEN MENTION, THIS
PROBLEM, AND WELL IT MIGHT, FOR THE LEGISLATIVE HISTORY OF THE ACT
DEMONSTRATES THAT THE COMPETITIVE CONCERNS THAT TROUBLED THE FRAMERS OF
THE AVIATION ACT RELATED EXCLUSIVELY TO COMPETITION BY AND AMONG AIR
CARRIERS.  A MAJOR IMPETUS TO FEDERAL REGULATIONS OF AIR TRANSPORTATION
WAS THE FAILURE OF THE PRECEDING ERA OF FREELY COMPETITIVE PRICE AND
ROUTE WARFARE TO BRING STABILITY TO THE NATION'S AIR TRANSPORT
INDUSTRY.  IN HIS STATEMENT ACCOMPANYING THE REPORT OF THE COMMITTEE ON
COMMERCE ON THE CIVIL AERONAUTICS ACT OF 1938, SENATOR COPELAND
STATED: 

"COMPETITION AMONG AIR CARRIERS IS BEING CARRIED TO AN EXTREME,
WHICH TENDS TO JEOPARDIZE THE FINANCIAL STATUS OF THE AIR CARRIERS AND
TO JEOPARDIZE AND RENDER UNSAFE A TRANSPORTATION SERVICE APPROPRIATE TO
THE NEEDS OF COMMERCE AND REQUIRED IN THE PUBLIC INTEREST, IN THE
INTERESTS OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE.  AVIATION
IN AMERICA TODAY, UNDER PRESENT LAWS, IS UNSATISFACTORY TO INVESTORS,
LABOR, AND THE AIR CARRIERS THEMSELVES . . . . THE COMMITTEE FEELS THAT
THIS BILL WILL NOT ONLY PROMOTE AN ORDERLY DEVELOPMENT OF OUR NATION'S
CIVIL AERONAUTICS, BUT BY ITS IMMEDIATE ENACTMENT PREVENT THE SPREAD OF
BAD PRACTICES AND OF DESTRUCTIVE AND WASTEFUL TACTICS RESULTING FROM
THE INTENSE COMPETITION NOW EXISTING WITHIN THE AIR-CARRIER INDUSTRY." 
S. REP. NO. 1661, 75TH CONG., 3D SESS., 2 (1938).  SIMILAR VIEWS WERE
VOICED BY THE CHAIRMAN OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, CONGRESSMAN CLARENCE LEA: 

     "UNDER EXISTING LAW THERE IS LITTLE ECONOMIC REGULATION OF AIR

  CARRIERS.  ROUTES ARE AWARDED NOT UPON THE BASIS OF THE ABILITY

OF THE PARTICULAR AIR CARRIER TO PERFORM THE SERVICE OR THE

  REQUIREMENTS OF THE PUBLIC CONVENIENCE AND NECESSITY, BUT UPON

  THE LETTING OF AIR-MAIL CONTRACTS TO THE LOWEST RESPONSIBLE

  BIDDERS.  THIS SYTEM HAS COMPLETELY BROKEN DOWN IN RECENT MONTHS,

  BECAUSE THE AIR CARRIERS, IN THEIR DESIRE TO SECURE THE RIGHT TO

  CARRY THE MAIL OVER A NEW ROUTE, HAVE MADE ABSURDLY LOW BIDS,

  INDEED, HAVE VIRTUALLY EVINCED A WILLINGNESS TO PAY FOR THE

  PRIVILEGE OF CARRYING THE MAIL OVER A PARTICULAR ROUTE.  A ROUTE

  ONCE SECURED, HOWEVER, UNDER THE EXISTING SYSTEM OF AIR-MAIL

  CONTRACTS DOES NOT PROTECT THE AIR CARRIER OPERATING THAT ROUTE

  FROM POSSIBLE CUTTHROAT COMPETITION, FOR AIR CARRIERS ARE NOT

  REQUIRED TO SECURE A CERTIFICATE OR OTHER AUTHORIZATION FROM THE

  GOVERNMENT BEFORE BEGINNING OPERATIONS, OTHER THAN ONE BASED UPON

  SAFETY REQUIREMENTS.  NOR, IS THERE ANY AUTHORITY IN THE FEDERAL

  GOVERNMENT UNDER EXISTING LAW TO PREVENT COMPETING CARRIERS FROM

  ENGAGING IN RATE WARS WHICH WOULD BE DISASTROUS TO ALL

  CONCERNED. 

    "THE RESULT OF THIS CHAOTIC SITUATION OF THE AIR CARRIERS HAS

  BEEN TO SHAKE THE FAITH OF THE INVESTING PUBLIC IN THEIR

  FINANCIAL STABILITY AND TO PREVENT THE FLOW OF FUNDS INTO THE

  INDUSTRY."  H.R. REP. NO. 2254, 75TH CONG., 3D SESS., 2 (1938). 

A KEY AIM OF THE NEW LEGISLATION, THEN, WAS TO ELIMINATE "CUTTHROAT
COMPETITION" AMONG AIR CARRIERS.  FROM THE BEGINNING, THE AIR CARRIERS
PUSHED FOR A SCHEME OF REGULATION TO CONTROL ENTRY AND REGULATE PRICE
COMPETITION IN THE AIR TRANSPORTATION MARKET.  YET EQUALLY SOON AFTER
SERIOUS CONSIDERATION OF AN AIR REGULATION BILL BEGAN, THE PROSPECT OF
REGULATION GAVE RISE TO CONCERN THAT THE NEW SYSTEM OF REGULATION MIGHT
BE USED TO FOSTER THE DEVELOPMENT OF AN "AIRLINE TRUST" OR SIMILAR
OVERCONCENTRATION IN THE AIR TRANSPORTATION MARKET.  IN 1937,
COMMISSIONER EASTMAN OF THE INTERSTATE COMMERCE COMMISSION, WHO
SUPPORTED FULL FEDERAL REGULATION OF AIR TRANSPORTATION, REMINDED THE
MEMBERS OF THE SENATE COMMERCE COMMITTEE THAT THE PROPOSED LEGISLATION
WOULD GIVE THE COMMISSION UNLIMITED AUTHORITY TO CONSOLIDATE THE
NATION'S AIRLINES AND, POSSIBLY, TO DO AWAY WITH COMPETITION
ALTOGETHER.  EASTMEN SUGGESTED THAT LANGUAGE BE DRAFTED TO PRECLUDE
UNDUE CONSOLIDATION AMONG CARRIERS.  /15/  AS ONE COMMENTATOR HAS
STATED, "EASTMAN'S SUGGESTION APPEARS TO HAVE BEEN HEEDED, FOR WHEN THE
(1937) BILL WAS REPORTED, THE MERGER CLAUSE CONTAINED (THE LANGUAGE
WHICH BECAME THE ANTIMONOPOLY RESTRICTION OF SECTION 408)."  COMMENT,
MERGER AND MONOPOLY IN DOMESTIC AVIATION, 62 COL.L.REV.  851, 856-857
(1962).  FINAL CONSIDERATION OF THE AVIATION BILL WAS POSTPONED UNTIL
THE NEXT SESSION OF CONGRESS, BUT WHEN SENATOR MCCARRAN AND
REPRESENTATIVE LEA INTRODUCED LEGISLATION AT THE 1938 SESSION TO CREATE
AN INDEPENDENT AIR REGULATORY AGENCY, BOTH BILLS "CONTAINED A MONOPOLY
PROVISO VIRTUALLY IDENTICAL TO THE ONE THAT HAD BEEN ADDED TO THE 1937
BILLS, AS REPORTED."  ID., AT 857. 

TO IMPLEMENT SEC. 408'S SCHEME FOR BALANCING STABILITY WITH
COMPETITION IN THE AIR TRANSPORTATION MARKET, THE BILL PROVIDED
EXPLICIT ANTITRUST IMMUNITY IN SEC. 414.  /16/  THE DEBATES OVER SEC.
414-- LIKE THE ORIGINS OF SEC. 408-- REFLECT CONGRESSIONAL CONCERN WITH
COMPETITION IN THE AIR TRANSPORTATION MARKET.  SENATOR MCKELLAR ASKED
SENATOR TRUMAN, A MAJOR SUPPORTER OF THE AVIATION BILL, IF IT WERE TRUE
THAT THE PROPOSED LEGISLATION WOULD REPEAL THE ANTITRUST PROVISIONS OF
THE EXISTING AIRMAIL LAWS.  WHEN SENATOR TRUMAN ANSWERED IN THE
AFFIRMATIVE, SENATOR MCKELLAR COMPLAINED THAT: 

"(SUCH A PROVISION IS VERY INADVISABLE, AND VERY BAD LEGISLATION,
AND OUGHT NEVER TO BE AGREED TO.  AS EVERYONE KNOWS, AT THE PRESENT
TIME THE AIR COMPANIES ARE COMPLAINING THAT THEY ARE NOT ALLOWED TO
CONSOLIDATE.  SOME YEARS AGO WE ALLOWED THEM TO CONSOLIDATE, AND THE
RESULT WAS THE GREATEST ILL THAT EVER BEFELL THE AIR COMPANIES.  THE
SAME ILL WILL BEFALL THEM AGAIN IF SUCH COMBINATIONS ARE PERMITTED. 

        .          .          .          . 

     "I DESIRE TO STATE THAT I CANNOT VOTE FOR ANY BILL WHICH

  PROPOSES THAT A COMMISSION SHALL GIVE AIR COMPANIES THE RIGHT TO

  COMBINE AND CONFEDERATE INTO A HUGH MONOPOLY.  I REGRET VERY MUCH

  THAT I SHALL HAVE TO VOTE AGAINST THE BILL."  83

  CONG.REC.  6728-6729. 

SENATOR MCCARRAN DISAGREED.  HE TOLD SENATOR MCKELLAR THAT THE BILL
"CONTAINED) EVERY PROTECTION AGAINST THE VERY THING WHICH THE SENATOR
FROM TENNESSEE FEARS."  SENATOR TRUMAN REMINDED HIS COLLEAGUES OF THE
SEC. 408 PROVISO REQUIRING THAT THE BOARD APPROVE NO ACQUISITION OF
CONTROL THAT WOULD "RESULT IN CREATING A MONOPOLY OR MONOPOLIES AND
THEREBY UNDULY RESTRAIN COMPETITION OR UNREASONABLY JEOPARDIZE ANOTHER
AIR CARRIER NOT A PARTY TO THE CONSOLIDATION . . . . "  SENATOR
MCCARRAN AGREED THAT "EVERY PRECAUTION HAS BEEN WRITTEN INTO THE BILL
SO THAT THE ANTITRUST LAWS AND ALL LAWS FOR THE PREVENTION OF
COMBINATIONS AND MONOPOLIES SHALL BE ENFORCED . . . . PROTECTION HAS
BEEN WRITTEN INTO THE BILL AGAINST COMBINATIONS AND MONOPOLIES IN
RESTRAINT OF TRADE, IN RESTRAINT OF COMMERCE, AND IN RESTRAINT OF
EVERYTHING WHICH WOULD CONSTITUTE A MONOPOLY."  ID., AT 6729.  SENATOR
COPELAND RECITED FIVE DIFFERENT PROVISIONS OF THE BILL "WHERE THE
QUESTION OF MONOPOLY IS DEALT WITH IN ONE WAY OR ANOTHER WITH THE VIEW
TO ITS CONTROL AND PREVENTION."  WHEN THE DEBATE TURNED FROM THE
DISCUSSION OF GENERAL PRINCIPLES TO APPLICATION OF THOSE PRINCIPLES TO
A PARTICULAR FACT SITUATION, AGAIN THE SENATORS SPOKE OF CONSOLIDATION
AND COMPETITION BY AIR CARRIERS.  /17/ 

THUS, THE DEBATES, AS WELL AS THE REMAINDER OF THE LEGISLATIVE
HISTORY OF THE 1938 ACT, REFLECT THAT THE CONGRESS THAT ENACTED THE
1938 LEGISLATION WAS CONCERNED ONLY WITH PROBLEMS OF COMPETITION AND
MONOPOLY IN THE AIR CARRIER MARKET.  MOREOVER, THE DEBATES SHOW THAT
THERE WAS CONSIDERABLE CONCERN OVER EVEN THE LIMITED GRANT OF ANTITRUST
IMMUNITY DEEMED NECESSARY TO PROVIDE THE PROPOSED AUTHORITY WITH
SUFFICIENT FLEXIBILITY TO ADMINISTER THE AIR CARRIER MARKET IN THE
PUBLIC INTEREST.  IT IS MOST UNLIKELY THAT THE CONCERNS EXPRESSED WOULD
HAVE BEEN PUT TO REST BY EXTENDING THE NEW AUTHORITY'S PRE-EMPTIVE
ANTITRUST RESPONSIBILITIES UNDER SEC. 408 BEYOND THE AIR TRANSPORTATION
MARKET INTO EVERY MARKET THAT MIGHT HAPPEN TO BE TOUCHED BY
TRANSACTIONS WITH AN AIR CARRIER. 

        III 

OUR HOLDING IN PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U.S.
296, BECOMES IMPORTANT IN THIS SETTING.  THERE, THE GOVERNMENT FILED AN
ANTITRUST COMPLAINT ALLEGING, INTER ALIA, ANTICOMPETITIVE INTERFERENCE
BY PAN AMERICAN WITH THE ROUTE ACQUISITIONS OF PANAGRA, A JOINT VENTURE
OF PAN AMERICAN WORLD AIRWAYS AND W. R. GRACE & CO. THIS COURT HELD
THAT THE COMPLAINT SHOULD BE DISMISSED.  THE COURT STOOD BEHIND THE
PRESUMPTION AGAINST IMPLIED ANTITRUST IMMUNITY, 371 U.S.,AT 304-305, N.
9; HOWEVER, FOR TWO INTERDEPENDENT REASONS, THE COURT HELD THAT THE
CONDUCT ALLEGED IN PANAGRA'S COMPLAINT WAS IMMUNIZED FROM THE ANTITRUST
LAWS.  FIRST, THE CONDUCT SPECIFIED IN THE COMPLAINT FELL WITHIN THE
BOARD'S BASIC MISSION AND COMPETENCY-- THE REGULATION OF ENTRY INTO AND
COMPETITION WITHIN THE AIR TRANSPORTATION MARKET: 

"LIMITATION OF ROUTES AND DIVISIONS OF TERRITORIES AND THE RELATION
OF COMMON CARRIERS TO AIR CARRIERS ARE BASIC IN THIS REGULATORY
SCHEME."  ID., AT 305.     SECOND, AND EQUALLY IMPORTANT, WE HELD THAT
SEC. 411 OF THE ACT GAVE THE BOARD A SPECIFIC SUBSTANTIVE MANDATE TO
INVESTIGATE AND REGULATE UNFAIR PRACTICES AND UNFAIR METHODS OF
COMPETITION AMONG AIR CARRIERS IN THE AIR TRANSPORTATION MARKET, ID.,
AT 302, 308. 

IN PAN AMERICAN THE BOARD HAD NOT ONLY THE STATUTORY POWER TO
SUPERVISE THE RELEVANT TRANSACTIONS BUT ALSO THE STATUTORY
RESPONSIBILITY TO REMEDY THE ABUSIVE FEATURES OF THOSE TRANSACTIONS
SPECIFIED IN THE PANAGRA COMP COMPLAINT.  CONSEQUENTLY, "IF THE COURTS
WERE TO INTRUDE INDEPENDENTLY WITH THEIR CONSTRUCTION OF THE ANTITRUST
LAWS, TWO REGIMES MIGHT COLLIDE."  ID., AT 310.  EVEN THIS NARROW
HOLDING PROVOKED THE DISSENT OF MR. JUSTICE BRENNAN, IN WHICH MR. CHIEF
JUSTICE WARREN JOINED. 

THE PRESENT CASE IS DIFFERENT FROM PAN AMERICAN IN A CRITICAL
RESPECT.  HERE, WE MAY ASSUME THE BOARD POSSESSES FULL AUTHORITY UNDER
THE ACT TO SUPERVISE SEC. 408 TRANSACTIONS BETWEEN A CONTROLLING PERSON
AND AN AIR CARRIER-- JUST AS IN PAN AMERICAN, THE ALLOCATION OF ROUTES
AND DIVISION OF TERRITORIES CONSTITUTED THE BASIC STUFF OF THE BOARD'S
DAY-TO-DAY BUSINESS.  YET, UNLIKE THE ACTS SPECIFIED BY PANAGRA IN PAN
AMERICAN, THE ACTS CHARGED IN TWA'S COMPLAINT ARE COMPONENTS OF AN
ANTITRUST CONSPIRACY TO RESTRAIN TRADE IN THE AIRCRAFT SUPPLY AND
MANUFACTURING MARKET.  SECTION 411 DOES NOT COMMAND BOARD
RESPONSIBILITY FOR PREVENTING SUCH A CONSPIRACY, SINEC SEC. 411 IS IN
TERMS RESTRICTED TO UNFAIR METHODS OF COMPETITION "IN AIR
TRANSPORTATION OR THE SALE THEREOF."  THUS, TO SUSTAIN ITS RESULT IN
THIS CASE, THE COURT MUST FALL BACK ON ONE (OR BOTH) OF TWO
PROPOSITIONS:  IT MUST EITHER FIND SOME SPECIFIC AUTHORITY IN THE
FEDERAL AVIATION ACT OTHER THAN SEC. 411 FOR ITS CONCLUSION THAT THE
BOARD'S MANDATE TO POLICE ANTICOMPETITIVE PRACTICES EXTENDS TO THE
SUBJECT MATTER OF TWA'S COMPLAINT; OR IT MUST CONSIDER SUCH STATUTORY
AUTHORITY IRRELEVANT TO A FINDING OF ANTITRUST IMMUNITY.  NEITHER
APPROACH IS, IN MY VIEW, SOUND. 

        IV 

A. IMPROBABLE AS IT SEEMS, THERE IS MUCH IN THE COURT'S OPINION TO
SUGGEST THAT ITS JUDGMENT RESTS UPON THE ASSUMPTION THAT ANTITRUST
IMMUNITY IS CONFERRED HERE SIMPLY BY VIRTUE OF A RATHER EXTENSIVE GRANT
OF PROCEDURAL AUTHORITY FOR THE BOARD TO INTERVENE IN THE CONTROL
PERSON-AIR-CARRIER RELATIONSHIP.  THE COURT RECOUNTS IN DETAIL THE
HISTORY OF THE BOARD'S INVOLVEMENT IN THE TOOLCO-TWA RELATIONSHIP--
THOUGH THE COURT DOES NOT SUGGEST, AS IT CANNOT, THAT THE BOARD
SPECIFICALLY CONSIDERED THE ACTIONS BY TOOLCO ALLEGED IN TWA'S
COMPLAINT TO VIOLATE THE ANTITRUST LAWS.  /18/  THE COURT TELLS US THAT
IN 1950, THE BOARD EMBARKED UPON A WIDE-RANGING EVALUATION OF THE
TREATMENT AFFORDED TWA BY TOOLCO AS THE CONTROLLING PERSON-- THOUGH THE
COURT DOES NOT SUGGEST, AS AGAIN IT CANNOT, THAT THE 1950 PROCEEDING OF
THE BOARD EVEN REMOTELY CONSIDERED TOOLCO'S ACTIONS AS COMPONENTS OF AN
ANTITRUST CONSPIRACY DIRECTED TOWARD THE AIRCRAFT SUPPLY AND
MANUFACTURING MARKET.  FINALLY, THE COURT MAKES MUCH OF THE POWERS OF
THE INVESTIGATION AND CONTINUING SUPERVISION PROVIDED BY SEC. 415 OF
THE ACT-- THOUGH THE COURT DOES NOT ACKNOWLEDGE THAT THOSE POWERS ARE
EXPLICITLY LIMITED BY CONGRESS TO BOARD ACTIONS "(FOR THE PURPOSE OF
EXERCISING AND PERFORMING (THE BOARD'S) POWERS AND DUTIES UNDER THIS
ACT," AND ARE THEREFORE NO INDICATION OF THE SCOPE OF THE BOARD'S
SUBSTANTIVE RESPONSIBILITY. 

THE WEAKNESS INHERENT IN THE COURT'S RECITATION OF "PROCEDURAL
UNDERBRUSH" IS THAT IT LEAPS FROM THE PREMISE OF THE BOARD'S
ACKNOWLEDGED PROCEDURAL POWER TO INTERVENE IN SEC. 408 "CONTROL"
TRANSACTIONS TO THE CONCLUSION THAT THE BOARD'S SUBSTANTIVE STATUTORY
DUTY TO CONSIDER THE ANTICOMPETITIVE IMPACT OF SUCH TRANSACTIONS IS OR,
FOR SOME REASON OF POLICY, OUGHT TO BE EQUALLY UNLIMITED.  YET,
INESCAPABLY, IT IS THE BOARD'S SUBSTANTIVE MANDATE UPON WHICH ANTITRUST
IMMUNITY PROPERLY TURNS; AS OUR PRIOR DECISIONS TEACH, THE POTENTIAL OF
COLLIDING SUBSTANTIVE JUDGMENTS FORCES THE CARVING OUT OF ANTITRUST
IMMUNITY, NOT SIMPLY THE OVERLAPPING OF JURISDICTION TO INTERVENE IN A
PARTICULAR TYPE OF TRANSACTION.  WE HAVE UNIFORMLY INSISTED UPON A
SUBSTANTIVE MANDATE TO THE REGULATORY AGENCY TO CONSIDER FULLY AND
REMEDY THE RELEVANT ANTICOMPETITIVE CONDUCT.  SEE, IN ADDITION TO PAN
AMERICAN, SUPRA, UNITED STATES V. BORDEN CO., 308 U.S. 188, 206 (1939)
(RELEVANT PROVISION OF CAPPER-VOLSTEAD ACT "DOES NOT COVER THE ENTIRE
FIELD OF THE SHERMAN ACT"); GEORGIE V. PENNSYLVANIA R. CO., 324 U.S.
439, 458 (1945) ("NO WARRANT IN THE INTERSTATE COMMERCE ACT AND THE
SHERMAN ACT FOR SAYING THAT THE AUTHORITY TO FIX JOINT THROUGH RATES
CLOTHES WITH LEGALITY A CONSPIRACY TO DISCRIMINATE AGAINST A STATE OR A
REGION, TO USE COERCION IN THE FIXING OF RATES, OR TO PUT IN THE HANDS
OF A COMBINATION OF CARRIERS A VETO POWER OVER RATES PROPOSED BY A
SINGLE CARRIER"); MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458,
469 (1960) (SEC. 7 OF CLAYTON ACT IMMUNIZED "TRANSACTIONS DULY
CONSUMMATED PURSUANT TO AUTHORITY GIVEN BY . . . THE SECRETARY OF
AGRICULTURE" UNDER STATUTORY AUTHORITY, BUT THIS INCLUDED ONLY
MARKETING AGREEMENTS AND NOT AGREEMENTS OR RESTRAINTS OF WIDER SCOPE
TYPICALLY COVERED BY THE ANTITRUST LAWS); CALIFORNIA V. FEDERAL POWER
COMM'N, 369 U.S. 482, 485 (1962) ("HERE . . . WHILE 'ANTITRUST
CONSIDERATIONS' ARE RELEVANT TO THE ISSUE OF 'PUBLIC INTEREST,
CONVENIENCE, AND NECESSITY' . . . THERE IS NO 'PERVASIVE REGULATORY
SCHEME' . . . INCLUDING THE ANTITRUST LAWS THAT HAS BEEN ENTRUSTED TO
THE COMMISSION"); UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321, 351-352 (1963) (THOUGH COMPTROLLER OF CURRENCY WAS REQUIRED TO
CONSIDER EFFECT ON COMPETITION IN PASSING ON BANK MERGER, NOT REQUIRED
TO GIVE THE FACTOR ANY PARTICULAR WEIGHT, TO HOLD A HEARING, OR TO
SUBJECT HIS DETERMINATION TO JUDICIAL REVIEW). 

B. THE MAJOR PREMISE OF THE COURT'S DECISION MUST, THEN, BE THAT THE
FEDERAL AVIATION ACT IMPOSES ON THE BOARD FULL RESPONSIBILITY FOR
EVALUATING AND PREVENTING ANTICOMPETITIVE IMPACT, OF WHATEVER VARIETY,
FLOWING FROM A CONTROL TRANSACTION TOUCHING AN AIR CARRIER.  AS THE
COURT PUTS IT, "COMPETITION AND MONOPOLY-- TWO INGREDIENTS OF THE
ANTITRUST LAWS-- ARE THUS STANDARDS GOVERNING THE CAB'S EXERCISE OF
AUTHORITY IN GRANTING, ALLOWING, OR EXPANDING OR CONTRACTING THE
CONTROL WHICH TOOLCO HAD OVER TWA BY REASON OF THE VARIOUS ORDERS
ISSUED BY THE CAB UNDER SEC. 408." 

I CANNOT AGREE WITH THE COURT'S READING OF THE PROVISIONS OF THE ACT
THAT REQUIRE THE BOARD TO MAINTAIN COMPETITION.  THE COURT OFFERS NO
SUPPORT FOR ITS READING OF THOSE PROVISIONS; AND, AS I HAVE ALREADY
INDICATED, THE LEGISLATIVE HISTORY SURELY PROVIDES NONE.  MOREOVER, THE
BOARD ITSELF HAS CONSISTENTLY INTERPRETED THE ACT NOT TO IMPOSE ON IT
THE EXPANSIVE ROLE THE COURT NOW PERCEIVES FOR THE FIRST TIME.  IN A
BRIEF AMICUS CURIAE FILED IN 1964 AND AGAIN IN 1972, THE BOARD
DISCLAIMED THE MANDATE OR THE COMPETENCY TO POLICE THE AIRCRAFT SUPPLY
MARKET OR ANY NON-AIR CARRIER MARKET WHICH MAY BE THREATENED BY
ANTICOMPETITIVE ACTS INVOLVING CONTROL OF AN AIR CARRIER.  WE HAVE ONLY
RECENTLY REAFFIRMED THE WELL-ESTABLISHED DOCTRINE THAT THE CONSISTENT
ADMINISTRATIVE CONSTRUCTION OF FEDERAL LEGISLATION "IS ENTITLED TO
GREAT WEIGHT."  TRAFFICANTE V. METROPOLITAN LIFE INSURANCE CO., ANTE,
AT 210; UDALL V. TALLMAN, 380 U.S. 1, 16 (1965); GRIGGS V. DUKE POWER
CO., 401 U.S. 424, 433-435 (1971).  AS FOR THE BOARD'S COMPETENCE TO DO
THE JOB ASSIGNED IT BY THE COURT, WE ARE NOT TIED TO THE BOARD'S SELF
APPRAISAL, BUT "IT IS ENTITLED TO SOME WEIGHT,"  PARTICULARLY WHEN THE
LEGAL ISSUES SURROUNDING TOOLCO'S ALLEGED BEHAVIOR IN THE AIRCRAFT
SUPPLY MARKET "ARE TYPICAL ANTITRUST PROBLEMS AND NOT AT ALL TYPICAL
AIRLINE LAW PROBLEMS."  "THE SEARCH FOR A PRACTICAL ACCOMMODATION OF
COURT AND AGENCY . . . IS NOT ADVANCED BY OUR IGNORING THE AGENCY'S
CONSIDERED SENSE OF SELF-LIMITATION."  PAN AMERICAN WORLD AIRWAYS,
SUPRA, AT 328, 330 (BRENNAN, R., DISSENTING). 

IF THE BOARD'S BASIC FUNCTION, THE ACT'S LEGISLATIVE HISTORY, AND THE
BOARD'S VIEW OF ITS OWN MANDATE AND COMPETENCE WERE NOT ENOUGH TO
CONVINCE ME THAT THE COURT'S READING OF THE ACT IS ERRONEOUS, THESE
FACTORS ARE AT LEAST ENOUGH TO RAISE SUBSTANTIAL DOUBTS.  SUCH DOUBTS,
AS OUR PRIOR CASES TEACH, ARE ENOUGH TO SECURE THE CONTINUING
AVAILABILITY OF ANTITRUST OR OTHER JUDICIAL REMEDIES AS ADDITIONAL
SAFEGUARDS FOR PROTECTION OF THE PUBLIC INTEREST.  "REPEALS OF THE
ANTITRUST LAWS BY IMPLICATION FROM A REGULATORY STATUTE ARE STRONGLY
DISFAVORED."  UNITED STATES V. PHILADELPHIA NATIONAL BANK, SUPRA, AT
350, UNITED STATES V. BORDEN CO., 308 U.S.,AT 198 ("A CARDINAL
PRINCIPLE OF CONSTRUCTION THAT REPEALS BY IMPLICATION ARE NOT
FAVORED").  SEE UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150,
226-228 (1940); GEORGIA V. PENNSYLVANIA R. CO., 324 U.S.,AT 456-457;
CALIFORNIA V. FEDERAL POWER COMM'N, 369 U.S.,AT 485, AND 14 ADDITIONAL
CASES CITED IN MR. JUSTICE BRENNAN'S OPINION FOR THE COURT IN UNITED
STATES V. PHILADELPHIA NATIONAL BANK, SUPRA, AT 350 N. 28.  THE
TRADITIONAL AVERSION TO IMPLIED REPEAL OF THE ANTITRUST LAWS SHOULD
HAVE PARTICULAR FORCE IN THE CONTEXT OF THE FEDERAL AVIATION ACT, WHICH
EXPLICITLY STATES THAT "(NOTHING CONTAINED IN THIS CHAPTER SHALL IN ANY
WAY ABRIDGE OR ALTER THE REMEDIES NOW EXISTING AT COMMON LAW OR BY
STATUTE, BUT THE PROVISIONS OF THIS CHAPTER ARE IN ADDITION TO SUCH
REMEDIES."  49 U.S.C. 1506; AND SEE PAN AMERICAN WORLD AIRWAYS, SUPRA,
AT 321 (BRENNAN, J., DISSENTING). 

NOR DOES THE COURT'S RESULT SEEM JUSTIFIABLE FOR PRACTICAL REASONS
OF REGULATORY ACCOMMODATION.  INDEED, I FIND THE COURT'S EXPANSIVE
READING OF THE BOARD'S ANTITRUST RESPONSIBILITIES INCONSISTENT WITH OUR
DUTY "TO MAKE THE (REGULATORY SCHEME) WORK."  SILVER V. NEW YORK STOCK
EXCHANGE, 373 U.S.,AT 357.  SECTION 408 OF THE ACT HAS NOW BEEN AMENDED
TO REQUIRE BOARD APPROVAL WHEN ANY PERSON, WHETHER OR NOT ENGAGED IN
ANY ASPECT OF AERONAUTICS, ACQUIRES A CONTROLLING INTEREST IN AN AIR
CARRIER.  IN THIS AGE OF CONGLOMERATE MERGERS, THE TIME MAY SOON ARRIVE
WHEN ANOTHER INDUSTRIAL CORPORATION SEEKS TO ACQUIRE CONTROL OF AN AIR
CARRIER.  IT MAY WELL BE THAT SOME SIMILAR FUTURE ACQUISITION MAY BE IN
THE BEST INTERESTS OF AMERICAN AIR TRANSPORTATION.  IT MAY LIKEWISE
POSE SERIOUS ANTICOMPETITIVE DANGERS.  THE COURT'S DECISION TODAY WILL,
I THINK, PROVIDE A SERIOUS OBSTACLE TO PROPER CONSIDERATION OF ANY SUCH
TRANSACTION THAT MAY BE PROPOSED IN FUTURE YEARS, SINCE THE BOARD WILL
BE FACED WITH A DIFFICULT DILEMMA.  IF IT APPROVES THE CONTROL
ACQUISITION, UNDER THE TERMS OF THE COURT'S DECISION THE BOARD ENGAGES
ITSELF TO EXERCISE CONTINUING SUPERVISION OVER ALL ASPECTS OF THE
CONTROL RELATIONSHIP, INCLUDING THE ANTICOMPETITIVE IMPACT OF THE
RELATIONSHIP IN THE COMPUTER MARKET, THE HOTEL MARKET, THE INSURANCE
MARKET, THE CREDIT MARKET, OR WHATEVER MARKET HAPPENS TO BE AFFECTED BY
THE CONTROL TRANSACTION.  QUITE UNDERSTANDABLY, THE BOARD'S RESPONSE
MAY BE TO PLAY IT SAFE, IN KEEPING WITH ITS OWN ADVICE TO THIS COURT
THAT IT CANNOT EFFECTIVELY FUNCTION AS THE OMBUDSMAN OF THE AMERICAN
ECONOMY WHENEVER THAT ECONOMY TOUCHES AIR TRANSPORTATION IN ANY WAY. 
ON THE OTHER HAND, THE BOARD MAY FEEL OBLIGED TO HEED THE COURT'S
YAWNING INTERPRETATION OF SEC. 408.  THIS COURSE OF ACTION POSES THE
THREAT THAT THE BOARD WILL HAVE EXTENDED ITSELF SO FAR BEYOND ITS
COMPETENCE AND MANPOWER THAT IT IS DIVERTED FROM THOSE CENTRAL TASKS OF
REGULATION IMPOSED ON IT BY SEC. 408 OF THE ACT.  IN EITHER EVENT, I
CANNOT IMAGINE THAT THE COURT'S NEW READING OF SEC. 408 WILL CONTRIBUTE
TO THE EFFECTIVE ENFORCEMENT OF THE CONGRESSIONAL SCHEME FOR PROMOTING
A SOUND NATIONAL SYSTEM OF AIR TRANSPORTATION. 

RETURNING TO THE 1964 EFFORTS OF TOOLCO TO HAVE THE COURT RESOLVE
THE ISSUE OF THE BOARD'S AUTHORITY WITH RESPECT TO THE ANTITRUST ISSUE,
IT IS ELEMENTARY, OF COURSE, THAT A DENIAL OF A PETITION FOR CERTIORARI
DECIDES NOTHING.  IT IS ALSO TRUE THAT DISMISSAL OF A PETITION AS
IMPROVIDENTLY GRANTED, AFTER FULL ORAL ARGUMENT AND BRIEFING, IS NOT A
JUDGMENT ON THE MERITS IN ANY SENSE.  BUT WHEN PARTIES TO LITIGATION
REACH THAT STAGE AND THE COURT FAILS TO RESPOND WITH A DECISION ON THE
MERITS, LAWYERS READ THAT AS A SIGNAL THAT THE CASE SHOULD PROCEED. 
THESE PARTIES DID SO-- FOR NINE YEARS AND MORE THAN 15 MILLION DOLLARS
IN LEGAL EXPENSE-- ONLY TO BE TOLD BY THE COURT NOW THAT ON THE FACTS
THERE IS NO LEGAL LIABILITY-- THE VERY ISSUE THAT COULD AS WELL HAVE
BEEN DECIDED IN 1964 AS TODAY.  ALL OF THE LITIGATION SINCE 1964 HAS
BEEN CONFINED TO THE MASSIVE TASK OF DETERMINING DAMAGES AND IT WILL
NOT DO TO SAY THAT THE COURT COULD NOT RESOLVE THE LEGAL ISSUES UNTIL
DAMAGES WERE ASCERTAINED.  PRECISELY THE CONTRARY IS TRUE. 

FOR THSES REASONS, I RESPECTFULLY DISSENT FROM THE COURT'S
JUDGMENT.  I WOULD HOLD THAT ACTIONS PERMITTED BY THE BOARD UNDER SEC.
408 OF THE FEDERAL AVIATION ACT ARE "AUTHORIZED, APPROVED, OR REQUIRED"
BY THE BOARD'S ACTION (AND THEREBY IMMUNIZED BY SEC. 414 FROM ANTITRUST
LIABILITY) ONLY TO THE EXTENT THAT THE ANTITRUST CLAIM FALLS WITHIN THE
CORE OF THE BOARD'S STATUTORY RESPONSIBILITY TO REGULATE AIR
TRANSPORTATION WHILE MAINTAINING, IN THAT MARKET, THE MAXIMUM DEGREE OF
COMPETITION CONSISTENT WITH THE PUBLIC INTEREST.  IN VIEW OF THE
COURT'S DISPOSITION, IT WOULD NOT BE FRUITFUL FOR ME TO EXPRESS AT
LENGTH MY VIEWS ON THE OTHER ISSUES PRESENTED TO THE COURT, OTHER THAN
TO NOTE THAT, WITH MODIFICATIONS NOT RELEVANT TO THE OVERRIDING ISSUE,
I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS.  AT THE VERY
LEAST, I WOULD SET THE CASES FOR REARGUMENT SO THE DISPOSITIVE ISSUE
MIGHT BE FULLY EXPLORED BY THE COURT.     /1/  32 F.R.D. 604. 

/2/  332 F.2D 602. 

/3/  379 U.S. 912. 

/4/  380 U.S. 248. 

/5/  HERBERT BROWNELL REPLACED J. LEE RANKIN AS SPECIAL MASTER WHEN
RANKIN RESIGNED IN DECEMBER 1965 TO BECOME CORPORATION COUNSEL FOR NEW
YORK CITY. 

/6/  308 F.SUPP.  679. 

/7/  449 F.2D 51.     /8/  405 U.S. 915. 

/9/  TOOLCO'S 1964 PETITION FOR CERTIORARI POSED THREE QUESTIONS,
THE FIRST BEING AS FOLLOWS: 

"1.  WHERE THE CIVIL AERONAUTICS BOARD HAS APPROVED THE ACQUISITION
OF A CONTROLLING STOCK INTEREST IN AN AIR CARRIER BY A PERSON ENGAGED
IN A PHASE OF AERONAUTICS AND HAS FURTHER APPROVED OR HAS JURISDICTION
TO APPROVE ALL RELEVANT TRANSACTIONS BETWEEN THEM UNDER AN ACT WHICH
IMMUNIZES THE APPROVED TRANSACTIONS FROM THE ANTITRUST LAWS, DOES THE
DISTRICT COURT HAVE JURISDICTION TO ENTERTAIN A COMPLAINT BY SUCH AIR
CARRIER ALLEGING THAT THE TRANSACTIONS BETWEEN THE SUBSIDIARY AIR
CARRIER AND ITS PARENT VIOLATED THE ANTITRUST LAWS IN THAT THEY
CONSTITUTED A CONSPIRACY, AN ATTEMPT TO MONOPOLIZE AND AN ACQUISITION
IN VIOLATION OF THE ANTITRUST LAWS?" 

TOOLCO'S PETITION IN THE PRESENT CASE POSED SEVEN QUESTIONS, THE
FOURTH OF WHICH WAS AS FOLLOWS: 

"4.  WHEN THE CIVIL AERONAUTICS BOARD HAS APPROVED AN ACQUISITION OF
CONTROL OVER AN AIR CARRIER BY A PERSON ENGAGED IN A PHASE OF
AERONAUTICS AND HAS FURTHER APPROVED ALL RELEVANT TRANSACTIONS BETWEEN
THEM, IS THE EXERCISE OF THAT CONTROL TO DETERMINE HOW THE AIR CARRIER
ACQUIRES AIRCRAFT AND THE NECESSARY FINANCING THEREFOR IMMUNIZED FROM
THE OPERATION OF THE ANTITRUST LAWS UNDER SECTION 414 OF THE FEDERAL
AVIATION ACT?" 

/10/  IT IS NOT UNREASONABLE TO ASSUME THAT THE BATTALIONS OF
LAWYERS FOR THESE ADVERSARIES DEVOTED SUBSTANTIALLY THE SAME EFFORT AND
TIME, THUS BRINGING COUNSEL FEES IN THE AGGREGATE TO THE SUM OF $15
MILLION. 

/11/  SECTION 408, 49 U.S.C. 1378, READS IN PERTINENT PART AS
FOLLOWS: 

"(A) PROHIBITED ACTS. 

"IT SHALL BE UNLAWFUL UNLESS APPROVED BY ORDER OF THE BOARD AS
PROVIDED IN THIS SECTION--

        .          .          .          . 

"(2) FOR ANY AIR CARRIER, ANY PERSON CONTROLLING AN AIR CARRIER, ANY
OTHER COMMON CARRIER, OR ANY PERSON ENGAGED IN ANY OTHER PHASE OF
AERONAUTICS, TO PURCHASE, LEASE, OR CONTRACT TO OPERATE THE PROPERTIES,
OR ANY SUBSTANTIAL PART THEREOF, OF ANY AIR CARRIER;

        .          .          .          . 

"(5) FOR ANY AIR CARRIER OR PERSON CONTROLLING AN AIR CARRIER, ANY
OTHER COMMON CARRIER, ANY PERSON ENGAGED IN ANY OTHER PHASE OF
AERONAUTICS, OR ANY OTHER PERSON TO ACQUIRE CONTROL OF ANY AIR CARRIER
IN ANY MANNER WHATSOEVER:  PROVIDED, THAT THE BOARD MAY BY ORDER EXEMPT
ANY SUCH ACQUISITION OF A NONCERTIFICATED AIR CARRIER FROM THIS
REQUIREMENT TO THE EXTENT AND FOR SUCH PERIODS AS MAY BE IN THE PUBLIC
INTEREST;

        .     .          .          . 

"(B) APPLICATION TO BOARD; HEARING; APPROVAL; DISPOSAL WITHOUT
HEARING. 

"ANY PERSON SEEKING APPROVAL OF A CONSOLIDATION, MERGER, PURCHASE,
LEASE, OPERATING CONTRACT, OR ACQUISITION OF CONTROL, SPECIFIED IN
SUBSECTION (A) OF THIS SECTION, SHALL PRESENT AN APPLICATION TO THE
BOARD, AND THEREUPON THE BOARD SHALL NOTIFY THE PERSONS INVOLVED IN THE
CONSOLIDATION, MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR
ACQUISITION OF CONTROL, AND OTHER PERSONS KNOWN TO HAVE A SUBSTANTIAL
INTEREST IN THE PROCEEDING, OF THE TIME AND PLACE OF A PUBLIC HEARING. 
UNLESS, AFTER SUCH HEARING, THE BOARD FINDS THAT THE CONSOLIDATION,
MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR ACQUISITION OF CONTROL
WILL NOT BE CONSISTENT WITH THE PUBLIC INTEREST OR THAT THE CONDITIONS
OF THIS SECTION WILL NOT BE FULFILLED, IT SHALL BY ORDER APPROVE SUCH
CONSOLIDATION, MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR
ACQUISITION OF CONTROL, UPON SUCH TERMS AND CONDITIONS AS IT SHALL FIND
TO BE JUST AND REASONABLE AND WITH SUCH MODIFICATIONS AS IT MAY
PRESCRIBE:  PROVIDED, THAT THE BOARD SHALL NOT APPROVE ANY
CONSOLIDATION, MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR
ACQUISITION OF CONTROL WHICH WOULD RESULT IN CREATING A MONOPOLY OR
MONOPOLIES AND THEREBY RESTRAIN COMPETITION OR JEOPARDIZE ANOTHER AIR
CARRIER NOT A PARTY TO THE CONSOLIDATION, MERGER, PURCHASE, LEASE,
OPERATING CONTRACT, OR ACQUISITION OF CONTROL . . . . " 

/12/  SECTION 408(A)(5) WAS AMENDED IN 1969 TO REQUIRE BOARD
APPROVAL OF AN ACQUISITION OF CONTROL OF AN AIR CARRIER BY "ANY OTHER
PERSON."  83 STAT. 103, 49 U.S.C. 1378(A)(5).  PRIOR TO 1969, THE ACT
REQUIRED BOARD APPROVAL ONLY FOR ACQUISITION OF CONTROL OF AN AIR
CARRIER BY ANOTHER AIR CARRIER, BY PERSONS HAVING OTHER SPECIFIED
TRANSPORTATION INTERESTS, OR BY A "PERSON ENGAGED IN ANY OTHER PHASE OF
AERONAUTICS." 

/13/  SECTION 102, 49 U.S.C. 1302, READS: 

"IN THE EXERCISE AND PERFORMANCE OF ITS POWERS AND DUTIES UNDER THIS
CHAPTER, THE BOARD SHALL CONSIDER THE FOLLOWING, AMONG OTHER THINGS, AS
BEING IN THE PUBLIC INTEREST, AND IN ACCORDANCE WITH THE PUBLIC
CONVENIENCE AND NECESSITY: 

"(A) THE ENCOURAGEMENT AND DEVELOPMENT OF AN AIR-TRANSPORTATION
SYSTEM PROPERLY ADAPTED TO THE PRESENT AND FUTURE NEEDS OF THE FOREIGN
AND DOMESTIC COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND
OF THE NATIONAL DEFENSE; 

"(B) THE REGULATION OF AIR TRANSPORTATION IN SUCH MANNER AS TO
RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF, ASSURE THE HIGHEST
DEGREE OF SAFETY IN, AND FOSTER SOUND ECONOMIC CONDITIONS IN, SUCH
TRANSPORTATION, AND TO IMPROVE THE RELATIONS BETWEEN, AND COORDINATE
TRANSPORTATION BY, AIR CARRIERS; 

"(C) THE PROMOTION OF ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE BY
AIR CARRIERS AT REASONABLE CHARGES, WITHOUT UNJUST DISCRIMINATIONS,
UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR DESTRUCTIVE COMPETITIVE
PRACTICES; 

"(D) COMPETITION TO THE EXTENT NECESSARY TO ASSURE THE SOUND
DEVELOPMENT OF AN AIR-TRANSPORTATION SYSTEM PROPERLY ADAPTED TO THE
NEEDS OF THE FOREIGN AND DOMESTIC COMMERCE OF THE UNITED STATES, OF THE
POSTAL SERVICE, AND OF THE NATIONAL DEFENSE; 

"(E) THE PROMOTION OF SAFETY IN AIR COMMERCE; AND 

"(F) THE PROMOTION, ENCOURAGEMENT, AND DEVELOPMENT OF CIVIL
AERONAUTICS." 

/14/  SECTION 414, 49 U.S.C. 1384, READS: 

"ANY PERSON AFFECTED BY ANY ORDER MADE UNDER SECTIONS 1378, 1379, OR
1382 OF THIS TITLE SHALL BE, AND IS HEREBY, RELIEVED FROM THE
OPERATIONS OF THE 'ANTITRUST LAWS,' AS DESIGNATED IN SECTION 12 OF
TITLE 15, AND OF ALL OTHER RESTRAINTS OR PROHIBITIONS MADE BY, OR
IMPOSED UNDER, AUTHORITY OF LAW, INSOFAR AS MAY BE NECESSARY TO ENABLE
SUCH PERSON TO DO ANYTHING AUTHORIZED, APPROVED, OR REQUIRED BY SUCH
ORDER." 

/15/  TESTIMONY OF JOSEPH B. EASTMAN, MEMBER, INTERSTATE COMMERCE
COMMISSION, ON S.2 AND S.1760 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON INTERSTATE COMMERCE, 75TH CONG., 1ST SESS., 334-335
(1937). 

/16/  AT THE HOUSE HEARINGS, COLONEL EDGAR GORRELL, PRESIDENT OF THE
AIR TRANSPORT ASSN. OF AMERICA, TESTIFIED THAT A MAJOR ELEMENT OF
UNCERTAINTY THAT KEPT MONEY FROM FLOWING INTO COMMERCIAL AVIATION WAS
"CUTTHROAT COMPETITION, . . . WHERE ONE COMPANY WENT OUT TO MAKE
WARFARE AGAINST ANOTHER AND WOUND UP BY DESTROYING THE CAPITAL OF BOTH
. . . . THAT IS A FACT.  IT HAS HAPPENED, AND THE ONLY AGENCY OR AGENT
IN AMERICA TODAY THAT CAN STOP IT IS MYSELF; AND THE MOMENT I STICK MY
NECK OUT TO STOP IT, IF I DID, I WOULD FACE A JAIL SENTENCE AND A FINE
FOR VIOLATING THE ANTITRUST LAWS.  OUR COMPANIES TODAY CANNOT LAWFULLY
AGREE ON PRICES."  HEARINGS ON H.R. 9738 BEFORE THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, 75TH CONG., 3D SESS., 309. 

SEE SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S. 341, 347 (1963),
WHERE WE NOTED THAT THE RELEVANT "COLLECTIVE ACTION . . . WOULD, HAD IT
OCCURRED IN A CONTEXT FREE FROM OTHER FEDERAL REGULATION, CONSTITUTE A
PER SE VIOLATION OF SEC. 1 OF THE SHERMAN ACT." 

/17/  83 CONG.REC.  6730-6731. 

/18/  BETWEEN 1956 AND 1960, THE BOARD ENTERED VARIOUS MODIFICATION
ORDERS PERMITTING TOOLCO AND TWA TO ENTER INTO SHORT-TERM LEASES OF
JETS AND PERMITTING VARIOUS LIMITED EXTENSIONS OF THOSE LEASES. 
SPECIFICALLY, THE RECORD SHOWS THAT THE BOARD APPROVED 12 TRANSACTIONS
BETWEEN TOOLCO AND TWA FROM 1956 TO 1960: 

-- ON MAY 17, 1956, THE BOARD APPROVED SALE OF 33 LOCKHEED AIRCRAFT,
AND SPARE PARTS, BY TOOLCO TO TWA; 

-- ON DEC. 18, 1956, THE BOARD APPROVED A PROPOSAL FOR TWA TO BORROW
SOME $10 MILLION IN OPERATING CAPITAL FROM TOOLCO; 

-- ON JUNE 11, 1957, THE BOARD APPROVED A PROPOSAL WHEREBY TOOLCO
WOULD REFINANCE TWA'S MAY 17, 1956, PURCHASE OF LOCKHEED AIRCRAFT; 

-- ON DEC. 30, 1958, THE BOARD AGAIN APPROVED A TRANSACTION RELATING
TO THE NONJET LOCKHEED AIRCRAFT; 

-- ON FEB. 26, 1959, THE BOARD APPROVED A PROPOSAL WHEREBY TWA WOULD
LEASE ONE BOEING 707-131 AIRCRAFT FROM TOOLCO, PLUS SPARE PARTS, FOR
THE PURPOSE OF TRAINING ITS CREWS TO FLY JET AIRCRAFT; 

-- ON MAY 15, 1959, THE BOARD APPROVED THE LEAST BY TOOLCO TO TWA OF
11 BOEING 707-131 JET AIRCRAFT, WITH PROVISION FOR OBTAINING SPARE
PARTS FROM TOOLCO AND LEASING SPARE JET ENGINES; 

-- ON JULY 1, 1959, THE BOARD APPROVED THE LEASE OF FOUR ADDITIONAL
AIRCRAFT BY TOOLCO TO TWA, AND THE EXTENSION OF THE LEASES ON THE
PREVIOUS JET AIRCRAFT.  THE LEASES WERE PROLONGED PENDING THE WORKING
OUT OF "DEFINITIVE FINANCING ARRANGEMENTS" WHICH, PRESUMABLY, WOULD
ENABLE TWA TO ACQUIRE OWNERSHIP OF THE AIRCRAFT; 

-- ON SEPT. 30, 1959, THE BOARD AGAIN APPROVED EXTENSION OF THE JET
LEASES UPON THE REPRESENTATION OF TOOLCO AND TWA THAT FINANCING
ARRANGEMENTS HAD NOT YET BEEN COMPLETED; 

-- ON JAN. 29, 1960, THE BOARD APPROVED THE LEASE BY TOOLCO TO TWA
OF EIGHT 707-131'S AND EIGHT CONVAIR 880'S (ALL JET AIRCRAFT), ON A DAY
TO-DAY BASIS, AND AGAIN WITH PROVISION FOR SPARE PARTS.  THIS APPROVAL
WAS AGAIN PREMISED ON COMPLETION IN THE NEAR FUTURE OF "DEFINITIVE
FINANCING ARRANGEMENTS PERMITTING (TWA) TO OPERATE THESE AIRCRAFT ON A
PERMANENT BASIS"; 

-- ON JUNE 23, 1960, THE BOARD APPROVED ACQUISITION-- I.E., PURCHASE
- BY TWA OF 25 BOEING 707 AND 20 CONVAIR 880 JET AIRCRAFT, WITH $260
MILLION TO BE RAISED BY AN OFFERING OF BONDS AND JUNIOR SECURITIES. 
TOOLCO WAS TO GUARANTEE THE SUBSCRIPTION AND WOULD LEND $50 MILLION TO
TWA TO ENABLE IT TO MAKE THE OFFERING; 

-- ON JULY 21, 1960, THE BOARD APPROVED ACQUISITION OF TITLE TO TWO
ADDITIONAL JET AIRCRAFT BY TWA FROM TOOLCO; AND 

-- FINALLY, ON DECEMBER 29, 1960, THE BOARD APPROVED CREATION OF A
VOTING TRUST FOR THE PLACEMENT OF TOOLCO'S HOLDINGS IN TWA. 

AS THE COURT'S OPINION OBSERVES, DAMAGES WERE AWARDED FOR THOSE
ALLEGATIONS OF THE TWA COMPLAINT THAT CHARGED THAT TWA HAD BEEN DAMAGED
BY THE DIVERSION OF SIX CONVAIRS BY TOOLCO TO NORTHEAST AIRLINES; BY
THE TEMPORARY RETENTION BY TOOLCO OF FOUR CONVAIRS AND THE ULTIMATE
LEASE OF THESE AIRCRAFT TO NORTHEAST; BY THE DIVERSION OF SIX BOEING
JET AIRCRAFT, OF 33 ORDERED, TO PAN AMERICAN AIRWAYS, TWA'S PRINCIPAL
TRANS-ATLANTIC COMPETITOR; BY THE LEASE OF PLANES TO TWA, IN LIEU OF
SALES THAT WOULD HAVE BEEN MORE TO TWA'S FINANCIAL INTEREST; AND BY THE
LATE DELIVERY OF 47 OF THE 63 JETS PROCURED FOR TWA BY TOOLCO. 

WITH THE EXCEPTION OF THE DECISION TO LEASE PLANES TO TWA RATHER
THAN SELL THEM, THE ACTIONS ALLEGED TO HAVE DAMAGES TWA RELATED, NOT TO
THE DOCUMENTED STRUCTURE OF TOOLCO'S TRANSACTIONS WITH TWA, AS
PRESENTED TO AND APPROVED IN FACT BY THE BOARD, BUT RATHER TO THE
MANNER IN WHICH TOOLCO EXECUTED THE PAPER TRANSACTIONS, WITHOUT BOARD
APPROVAL OR KNOWLEDGE.  THE LEASES WERE NEVER CONSIDERED IN RELATION TO
OTHER MEANS OF AIRCRAFT ACQUISITION, AS THE COMPLAINT REQUIRED THEY BE
VIEWED.  THE COURT DISMISSES THESE DISCREPANCIES BY OBSERVING THAT THE
RESTRAINT ALLEGED IN PAN AMERICAN WAS HELD TO BE IMMUNE "EVEN THOUGH
THE CAB HAD TAKEN NO ACTION TO INVESTIGATE, LET ALONE ACT ON, THE
ALLEGED MISFEASANCE AS THE BOARD HAS DONE HERE FOR OVER 16 YEARS."  IN
OTHER WORDS, IF THE BOARD WERE RESPONSIBLE FOR COMPLETE SUPERVISION OF
THE TOOLCO-TWA TRANSACTIONS, IMMUNITY WOULD NOT BE UNDERMINED BY THE
BOARD'S FAILURE TO UNDERTAKE SUCH SUPERVISION IN FACT. 

AT BEST, THOUGH, THE COURT'S HISTORICAL RECITATION IS IRRELEVANT
SINCE IT IN NO WAY EXPLAINS WHY IT WAS THE BOARD'S STATUTORY
RESPONSIBILITY TO CONSIDER THE TRANSACTIONS BETWEEN TOOLCO AND TWA AS
COMPONENTS OF AN ANTITRUST CONSPIRACY ALLEGEDLY POINTED TOWARD THE
AIRCRAFT SUPPLY AND MANUFACTURING MARKET. 

/19/ THE BOARD'S 1950 PROCEEDING UNDERTOOK "TO CONSIDER THE OVER-ALL
IMPACT OF THE ACQUIRER'S PLANS AND POLICIES WITH RESPECT TO THE
CONTROLLED CARRIED."  12 C.A.B. 192, 196.  THE BOARD REVIEWED THE PAST
TRANSACTIONS INVOLVING THE FINANCING OF AIRCRAFT.  IN PARTICULAR, THE
BOARD CONSIDERED WHETHER TOOLCO HAD PROPERLY RESOLVED, IN FAVOR OF DEBT
FINANCING, A LONGSTANDING DISPUTE BETWEEN THE TOOLCO AND TWA
MANAGEMENTS OVER THE RELATIVE MERITS OF DEBT OR EQUITY FINANCING OF NEW
AIRCRAFT.  THE BOARD CONCLUDED THAT TOOLCO'S FINANCIAL AND TECHNICAL
CONTRIBUTIONS TO TWA HAD BEEN OF CONSIDERABLE BENEFIT TO THE CARRIER. 
ON THE OTHER HAND, THE BOARD VIEWED TWA'S CAPITALIZATION AS "NEITHER
REASONABLE NOR SOUND" SINCE "(ITS PROPORTION OF DEBT TO TOTAL
CAPITALIZATION IS FAR TOO LARGE."  ID., AT 218.  YET "THE EXTENT TO
WHICH TOOLCO AND ITS PRINCIPAL OFFICERS CAN BE HELD DIRECTLY OR
PRINCIPALLY RESPONSIBLE FOR TWA'S PRESENT CAPITAL STRUCTURE POSES A
MOST DIFFICULT PROBLEM," SINCE "(NUMEROUS FACTORS . . . OPERATE TO
COMPLICATE AND OFTEN DELAY AGREEMENT ON A FINANCIAL PLAN."  ID., AT
221.  ON BALANCE, THE BOARD CONCLUDED THAT TOOLCO CONTROL OF TWA HAD
BEEN IN THE PUBLIC INTEREST, AND IT APPROVED THE ADDITIONAL ACQUISITION
BY TOOLCO OF TWA STOCK.     WHILE IT IS TRUE THAT THE BOARD'S
EVALUATION OF TOOLCO'S "STEWARDSHIP" OVER TWA INVOLVED DECISIONS
REGARDING THE ACQUISITION OF AIRCRAFT, INCLUDING THE METHOD OF
FINANCING AND THE TIMING OF PURCHASE AND LEASE DECISIONS, THERE IS
NOTHING IN THE BOARD'S DECISION TO INDICATE THAT THE BOARD'S 1950
PROCEEDING UNDERTOOK TO ANALYZE TOOLCO'S CONTROL OF TWA FROM THE
PERSPECTIVE OF TOOLCO'S OWN MARKET POSITION.  CONSEQUENTLY, THE 1950
PROCEEDING IN NO WAY SUGGESTS THAT THE BOARD HAS DEVIATED FROM ITS
CONSISTENT POSITION THAT CONGRESS DID NOT ENTRUST IT WITH THE EXCLUSIVE
RESPONSIBILITY FOR POLICING ANTICOMPETITIVE EFFECTS OF SEC. 408
TRANSACTIONS. 

CHARLES ALAN WRIGHT ARGUED THE CAUSE FOR PETITIONERS IN NO. 71-827
AND RESPONDENTS IN NO. 71-830.  WITH HIM ON THE BRIEFS WERE CLARK M.
CLIFFORD, THOMAS D. FINNEY, JR., E. BARRETT PRETTYMAN, JR., CHESTER C.
DAVIS, AND MAXWELL E. COX. 

DUDLEY B. TENNEY ARGUED THE CAUSE FOR RESPONDENT IN NO. 71-827 AND
PETITIONER IN NO. 71-830.  WITH HIM ON THE BRIEFS WERE JAMES WM. MOORE,
PAUL W. WILLIAMS, MARSHALL H. COX, JR., RAYMOND L. FALLS, JR., AND
WILLIAM T. LIFLAND. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL KAUPER,
GEORGE EDELSTEIN, O. D. OZMENT, WARREN L. SHARFMAN, AND ROBERT L.
TOOMEY FILED A MEMORANDUM FOR THE CIVIL AERONAUTICS BOARD AS AMICUS
CURIAE. 
..END :









PHILPOTT V. ESSEX COUNTY WELFARE BOARD, 409 U.S. 413 


       PHILPOTT ET AL. V. ESSEX COUNTY WELFARE BOARD

     CERTIORARI TO THE SUPREME COURT OF NEW JERSEY

 NO. 71-5656.  ARGUED DECEMBER 4, 1972-- DECIDED JANUARY 10,

           1973 


A SOCIAL SECURITY ACT PROVISION, 42 U.S.C. 407, WHICH PROHIBITS
SUBJECTING FEDERAL DISABILITY INSURANCE BENEFITS AND OTHER BENEFITS TO
ANY LEGAL PROCESS, BARS A STATE FROM RECOVERING SUCH BENEFITS
RETROACTIVELY PAID TO A BENEFICIARY, AND IN THIS CASE NO EXECPTION CAN
BE IMPLIED ON THE GROUND THAT IF THE FEDERAL PAYMENTS HAD BEEN MADE
MONTHLY THERE WOULD HAVE BEEN A CORRESPONDING REDUCTION IN THE STATE
PAYMENTS.  PP. 415-417. 

59 N.J. 75, 279 A. 2D 806, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WILKES, /1/  ONE OF THE PETITIONERS, APPLIED TO RESPONDENT, ONE OF
NEW JERSEY'S WELFARE AGENCIES, FOR FINANCIAL ASSISTANCE BASED UPON NEED
BY REASON OF PERMANENT AND TOTAL DISABILITY.  AS A CONDITION OF
RECEIVING ASSISTANCE, A RECIPIENT IS REQUIRED BY NEW JERSEY LAW TO
EXECUTE AN AGREEMENT TO REIMBURSE THE COUNTY WELFARE BOARD FOR ALL
PAYMENTS RECEIVED THEREUNDER.  /2/  THE PURPOSE APPARENTLY IS TO ENABLE
THE BOARD TO OBTAIN REIMBURSEMENT OUT OF SUBSEQUENTLY DISCOVERED OR
ACQUIRED REAL AND PERSONAL PROPERTY OF THE RECIPIENT. 

WILKES APPLIED TO RESPONDENT FOR SUCH ASSISTANCE IN 1966 AND HE
EXECUTED THE REQUIRED AGREEMENT.  RESPONDENT DETERMINED WILKES' MONTHLY
MAINTENANCE NEEDS TO BE $108; AND, FINDING THAT HE HAD NO OTHER INCOME,
RESPONDENT FIXED THE MONTHLY BENEFITS AT THAT AMOUNT AND BEGAN MAKING
ASSISTANCE PAYMENTS, NO LATER THAN JANUARY 1, 1967.  THE PAYMENTS WOULD
HAVE BEEN LESS IF WILKES HAD BEEN RECEIVING FEDERAL DISABILITY
INSURANCE BENEFITS UNDER THE SOCIAL SECURITY ACT, AND RESPONDENT
ADVISED HIM TO APPLY FOR THOSE FEDERAL BENEFITS. 

IN 1968 WILKES WAS AWARDED RETROACTIVE DISABILITY INSURANCE BENEFITS
UNDER SEC. 223 OF THE SOCIAL SECURITY ACT, 70 STAT. 815, AS AMENDED, 42
U.S.C. 423, COVERING THE PERIOD FROM MAY 1966 INTO THE SUMMER OF 1968. 
THOSE BENEFITS, CALCULATED ON THE BASIS OF $69.60 PER MONTH FOR 20
MONTHS AND $78.20 PER MONTH FOR SIX MONTHS, AMOUNTED TO $1,864.20.  A
CHECK IN THAT AMOUNT WAS DEPOSITED IN THE ACCOUNT WHICH PHILPOTT HOLDS
AS TRUSTEE FOR WILKES.  UNDER NEW JERSEY LAW, WE ARE TOLD, THE FILING
OF A NOTICE OF SUCH A REIMBURSEMENT AGREEMENT HAS THE SAME FORCE AND
EFFECT AS A JUDGMENT.  59 N.J. 75, 80 279 A.2D 806, 809. 

RESPONDENT SUED TO REACH THE BANK ACCOUNT UNDER THE AGREEMENT TO
REIMBURSE.  THE TRIAL COURT HELD THAT RESPONDENT WAS BARRED BY THE
SOCIAL SECURITY ACT, 49 STAT. 624, AS AMENDED, 42 U.S.C. 407, FROM
RECOVERING ANY AMOUNT FROM THE ACCOUNT.  /3/  104 N.J. SUPER 280, 249
A.2D 639.  THE APPELLATE DIVISION AFFIRMED.  109 N.J. SUPER.  48, 262
A.2D 227.  THE SUPREME COURT REVERSED.  /4/  59 N.J. 75, 279 A.2D 806. 
THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED.  406 U.S. 917. 

ON ITS FACE, THE SOCIAL SECURITY ACT IN SEC. 407 BARS THE STATE OF
NEW JERSEY FROM REACHING THE FEDERAL DISABILITY PAYMENTS PAID TO
WILKES.  THE LANGUAGE IS ALL-INCLUSIVE:  /5/  "(NONE OF THE MONEYS PAID
OR PAYABLE . . . UNDER THIS SUBCHAPTER SHALL BE SUBJECT TO EXECUTION,
LEVY, ATTACHMENT, GARNISHMENT, OR OTHER LEGAL PROCESS . . . . "  THE
MONEYS PAID AS RETROACTIVE BENEFITS WERE "MONEYS PAID . . . UNDER THIS
SUBCHAPTER"; AND THE SUIT BROUGHT WAS AN ATTEMPT TO SUBJECT THE MONEY
TO "LEVY, ATTACHMENT . . . OR OTHER LEGAL PROCESS." 

NEW JERSEY ARGUES THAT IF THE AMOUNT OF SOCIAL SECURITY BENEFITS
RECEIVED FROM THE FEDERAL GOVERNMENT HAD BEEN MADE MONTHLY, THE AMOUNT
OF STATE WELFARE BENEFITS COULD HAVE BEEN REDUCED BY THE AMOUNT OF THE
FEDERAL GRANT.  WE SEE NO REASON TO BASE AN IMPLIED EXEMPTION FROM SEC.
407 ON THAT GROUND.  WE SEE SEE NO REASON WHY A STATE, PERFORMING ITS
STATUTORY DUTY TO TAKE CARE OF THE NEEDY, SHOULD BE IN A PREFERRED
POSITION AS COMPARED WITH ANY OTHER CREDITOR.  INDEED, SINCE THE
FEDERAL GOVERNMENT PROVIDES ONE-HALF OF THE FUNDS FOR ASSISTANCE UNDER
THE NEW JERSEY PROGRAM OF DISABILITY RELIEF, THE STATE, CONCEDEDLY, ON
RECOVERY OF ANY SUMS BY WAY OF REIMBURSEMENT, WOULD HAVE TO ACCOUNT TO
THE FEDERAL GOVERNMENT FOR THE LATTER'S SHARE. 

THE PROTECTION AFFORDED BY SEC. 407 IS TO "MONEYS PAID" AND WE THINK
THE ANALOGY TO VETERANS' BENEFITS EXEMPTIONS WHICH WE REVIEWED IN
PORTER V. AETNA CASUALTY CO., 370 U.S. 159, IS RELEVANT HERE.  WE HELD
IN THAT CASE THAT VETERANS' BENEFITS DEPOSITED IN A SAVINGS AND LOAN
ASSOCIATION ON BEHALF OF A VETERAN RETAINED THE "QUALITY OF MONEYS" AND
HAD NOT BECOME A PERMANENT INVESTMENT.  ID., AT 161-162. 

IN THE PRESENT CASE, AS IN PORTER, THE FUNDS ON DEPOSIT WERE READILY
WITHDRAWABLE AND RETAINED THE QUALITY OF "MONEYS" WITHIN THE PURVIEW OF
SEC. 407.  THE SUPREME COURT OF NEW JERSEY REFERRED TO CASES /6/  WHERE
A STATE WHICH HAS PROVIDED CARE AND MAINTENANCE TO AN INCOMPETENT
VETERAN AT TIMES IS A "CREDITOR" FOR PURPOSES OF 38 U.S.C. 3101, AND AT
OTHER TIMES IS NOT.  BUT SEC. 407 DOES NOT REFER TO ANY "CLAIM OF
CREDITORS"; IT IMPOSES A BROAD BAR AGAINST THE USE OF ANY LEGAL PROCESS
TO REACH ALL SOCIAL SECURITY BENEFITS.  THAT IS BROAD ENOUGH TO INCLUDE
ALL CLAIMANTS, INCLUDING A STATE. 

THE NEW JERSEY COURT ALSO RELIED ON 42 U.S.C. 404, A PROVISION OF
THE SOCIAL SECURITY ACT WHICH PERMITS THE SECRETARY TO RECOVER
OVERPAYMENTS OF OLD AGE, SURVIVORS, OR DISABILITY INSURANCE BENEFITS. 
BUT THERE HAS BEEN NO OVERPAYMENT OF FEDERAL DISABILITY BENEFITS HERE
AND THE SECRETARY IS NOT SEEKING ANY RECOVERY HERE.  AND THE SOLICITOR
GENERAL, SPEAKING FOR THE SECRETARY, CONCEDES THAT THE PECUNIARY
INTEREST OF THE UNITED STATES IN THE OUTCOME OF THIS CASE, WHICH WOULD
BE ITS ALIQUOT SHARE OF ANY RECOVERY, IS NOT WITHIN THE AMBIT OF SEC.
404. 

BY REASON OF THE SUPREMACY CLAUSE THE JUDGMENT BELOW IS

              REVERSED. 

/1/  THE PAYMENT IN CONTROVERSY IS IN A BANK ACCOUNT UNDER THE NAME
OF PETITIONER PHILPOTT IN TRUST FOR WILKES. 

/2/  N.J. STAT.ANN.  44:7-14(A)(SUPP.  1972-1973) PROVIDES:  "EVERY
COUNTY WELFARE BOARD SHALL REQUIRE, AS A CONDITION TO GRANTING
ASSISTANCE IN ANY CASE, THAT ALL OR ANY PART OF THE PROPERTY, EITHER
REAL OR PERSONAL, OF A PERSON APPLYING FOR OLD AGE ASSISTANCE, BE
PLEDGED TO SAID COUNTY WELFARE BOARD AS A GUARANTY FOR THE
REIMBURSEMENT OF THE FUNDS SO GRANTED AS OLD AGE ASSITANCE PURSUANT TO
THE PROVISIONS OF THIS CHAPTER.  THE COUNTY WELFARE BOARD SHALL TAKE
FROM EACH APPLICANT A PROPERLY ACKNOWLEDGED AGREEMENT TO REIMBURSE FOR
ALL ADVANCES GRANTED, AND PURSUANT TO SUCH AGREEMENT, SAID APPLICANT
SHALL ASSIGN TO THE WELFARE BOARD, AS COLLATERAL SECURITY FOR SUCH
ADVANCES, ALL OR ANY PART OF HIS PERSONAL PROPERTY AS THE BOARD SHALL
SPECIFY." 

/3/  TITLE 42 U.S.C. 407 PROVIDES: 

"THE RIGHT OF ANY PERSON TO ANY FUTURE PAYMENT UNDER THIS SUBCHAPTER
SHALL NOT BE TRANSFERABLE OR ASSIGNABLE, AT LAW OR IN EQUITY, AND NONE
OF THE MONEYS PAID OR PAYABLE OR RIGHTS EXISTING UNDER THIS SUBCHAPTER
SHALL BE SUBJECT TO EXECUTION, LEVY, ATTACHMENT, GARNISHMENT, OR OTHER
LEGAL PROCESS, OR TO THE OPERATION OF ANY BANKRUPTCY OR INSOLVENCY
LAW." 

/4/  SINCE RESPONDENT DID NOT CLAIM A RIGHT TO THE ENTIRE FEDERAL
PAYMENT BUT ONLY TO THE AMOUNT BY WHICH ITS OWN PAYMENTS WOULD HAVE
BEEN REDUCED HAD THE FEDERAL BENEFITS BEEN RECEIVED CURRENTLY RATHER
THAN RETROACTIVELY AND BECAUSE THE STIPULATED FACTS WERE AMBIGUOUS AS
TO WHEN RESPONDENT ACTUALLY BEGAN MAKING ASSISTANCE PAYMENTS, THE COURT
REMANDED FOR A DETERMINATION OF THE PRECISE AMOUNT OF RESPONDENT'S
CLAIM. 

/5/  SUPRA, N. 3. 

/6/  SEE SAVOID V. DISTRICT OF COLUMBIA, 110 U.S. APP.D.C. 39, 288
F.2D 851; DISTRICT OF COLUMBIA V. REILLY, 102 U.S.APP.D.C. 9, 249 F.2D
524.  SEE DECISION BELOW, 59 N.J. 75, 85, 279 A.2D 806, 812. 

GEORGE CHARLES BRUNO ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

RONALD REICHSTEIN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS JOSEPH E. COHEN. 

SOLICITOR GENERAL GRISWOLD, DEPUTY SOLICITOR GENERAL FRIEDMAN, KEITH
A. JONES, WILMOT R. HASTINGS, EDWIN YOURMAN, AND ARTHUR ABRAHAM FILED A
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE URGING REVERSAL. 

GEORGE F. KUGLER, JR., ATTORNEY GENERAL, STEPHEN SKILLMAN, ASSISTANT
ATTORNEY GENERAL, AND JOAN W. MURPHY, DEPUTY ATTORNEY GENERAL, FILED A
BRIEF FOR THE STATE OF NEW JERSEY AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :


















DISTRICT OF COLUMBIA V. CARTER, 409 U.S. 418 


       DISTRICT OF COLUMBIA V. CARTER

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

        NO. 71-564.  ARGUED NOVEMBER 6, 1972-- DECIDED JANUARY 10,

           1973 


THE DISTRICT OF COLUMBIA IS NOT A "STATE OR TERRITORY" WITHIN THE
MEANING OF 42 U.S.C. 1983, AND THE COURT OF APPEALS THEREFORE ERRED
INSOFAR AS THAT COURT SUSTAINED RESPONDENT'S CLAIMS FOR DEPRIVATION OF
CIVIL RIGHTS PURSUANT TO THAT STATUTE.  PP. 420-433. 

144 U.S.APP.D.C. 388, 447 F.2D 358, REVERSED. 

BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

ON FEBRUARY 12, 1969, RESPONDENT FILED THIS CIVIL ACTION IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ALLEGING THAT
IN 1968 POLICE OFFICER JOHN R. CARLSON OF THE METROPOLITAN POLICE
DEPARTMENT OF THE DISTRICT OF COLUMBIA ARRESTED HIM WITHOUT PROBABLE
CAUSE AND, WHILE HE WAS BEING HELD BY TWO OTHER OFFICERS, BEAT HIM WITH
BRASS KNUCKLES.  THE COMPLAINT ALLEGED FURTHER THAT CARLSON'S PRECINCT
CAPTAIN, THE CHIEF OF POLICE, AND THE DISTRICT OF COLUMBIA EACH HAD
NEGLIGENTLY FAILED TO TRAIN, INSTRUCT, SUPERVISE, AND CONTROL CARLSON
WITH REGARD TO THE CIRCUMSTANCES IN WHICH AN ARREST MAY BE MADE AND THE
EXTENT TO WHICH VARIOUS DEGREES OF FORCE MAY BE USED TO EFFECT AN
ARREST.  RESPONDENT SOUGHT DAMAGES AGAINST EACH DEFENDANT UPON SEVERAL
THEORIES, INCLUDING A COMMON-LAW THEORY OF TORT LIABILITY AND AN ACTION
FOR DEPRIVATION OF CIVIL RIGHTS PURSUANT TO 42 U.S.C. 1983, WHICH
PROVIDES:  /1/ 

     "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,

  REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY,

  SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED

  STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE

  DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY

  THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED

  IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING

  FOR REDRESS." 

THE DISTRICT COURT DISMISSED THE COMPLAINT AGAINST ALL DEFENDANTS
WITHOUT OPINION.  /2/  ON APPEAL, THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT REVERSED, HOLDING THAT THE
ALLEGATIONS OF THE COMPLAINT WERE SUFFICIENT TO STATE CAUSES OF ACTION
UNDER BOTH THE COMMON-LAW AND FEDERAL STATUTORY THEORIES OF LIABILITY. 
CARTER V. CARLSON, 144 U.S.APP.D.C. 388, 447 F.2D 358 (1971).  IN
SUSTAINING RESPONDENT'S CLAIMS UNDER SEC. 1983, THE COURT HELD THAT
"(ACTS UNDER COLOR OF THE LAW OF THE DISTRICT OF COLUMBIA ARE UNDER
COLOR OF THE LAW OF A 'STATE OR TERRITORY' FOR THE PURPOSE OF SEC.
1983."  ID., AT 391 N. 3, 447 F.2D, AT 361 N. 3.  WE GRANTED
CERTIORARI.  404 U.S. 1014.  FOR THE REASONS STATED BELOW, WE HOLD THAT
THE DISTRICT OF COLUMBIA IS NOT A "STATE OR TERRITORY" WITHIN THE
MEANING OF SEC. 1983.  WE THEREFORE REVERSE THE JUDGMENT OF THE COURT
OF APPEALS INSOFAR AS THAT JUDGMENT SUSTAINED RESPONDENT'S CLAIMS UNDER
SEC. 1983.  /3/

        I 

WHETHER THE DISTRICT OF COLUMBIA CONSTITUTES A "STATE OR TERRITORY"
WITHIN THE MEANING OF ANY PARTICULAR STATUTORY OR CONSTITUTIONAL
PROVISION DEPENDS UPON THE CHARACTER AND AIM OF THE SPECIFIC PROVISION
INVOLVED.  /4/  INDEED, SUCH "(WORDS GENERALLY HAVE DIFFERENT SHADES OF
MEANING, AND ARE TO BE CONSTRUED IF REASONABLY POSSIBLE TO EFFECTUATE
THE INTENT OF THE LAWMAKERS; AND THIS MEANING IN PARTICULAR INSTANCES
IS TO BE ARRIVED AT, NOT ONLY BY A CONSIDERATION OF THE WORDS
THEMSELVES, BUT BY CONSIDERING, AS WELL, THE CONTEXT, THE PURPOSES OF
THE LAW, AND THE CIRCUMSTANCES UNDER WHICH THE WORDS WERE EMPLOYED." 
PUERTO RICO V. THE SHELL CO. (P.R.), LTD., 302 U.S. 253, 258 (1937);
SEE HELVERING V. STOCKHOLMS ENSKILDA BANK, 293 U.S. 84, 86, 87-88
(1934); ATLANTIC CLEANERS & DYERS V. UNITED STATES, 286 U.S. 427, 433
(1932). 

THE COURT OF APPEALS' CONCLUSION THAT THE DISTRICT OF COLUMBIA IS A
"STATE OR TERRITORY" FOR THE PURPOSE OF SEC. 1983 WAS PREMISED ALMOST
EXCLUSIVELY UPON THIS COURT'S EARLIER DETERMINATION THAT "THE DISTRICT
OF COLUMBIA IS INCLUDED WITHIN THE PHRASE 'EVERY STATE AND TERRITORY'"
AS EMPLOYED IN 42 U.S.C. 1982.  HURD V. HODGE, 334 U.S. 24, 31 (1948). 
/5/  AT FIRST GLANCE, IT MIGHT SEEM LOGICAL TO ASSUME, AS DID THE COURT
OF APPEALS, THAT IDENTICAL WORDS USED IN TWO RELATED STATUTES WERE
INTENDED TO HAVE THE SAME EFFECT.  NEVERTHELESS, "(WHERE THE SUBJECT
MATTER TO WHICH THE WORDS REFER IS NOT THE SAME IN THE SEVERAL PLACES
WHERE THEY ARE USED, OR THE CONDITIONS ARE DIFFERENT, OR THE SCOPE OF
THE LEGISLATIVE POWER EXERCISED IN ONE CASE IS BROADER THAN THAT
EXERCISED IN ANOTHER, THE MEANING WELL MAY VARY TO MEET THE PURPOSES OF
THE LAW . . . . "  ATLANTIC CLEANERS & DYERS V. UNITED STATES, SUPRA,
AT 433.  AND THE LOGIC UNDERLYING THE COURT OF APPEALS'  ASSUMPTION
BREAKS DOWN COMPLETELY WHERE, AS HERE, "THERE IS SUCH VARIATION IN THE
CONNECTION IN WHICH THE WORDS ARE USED AS REASONABLY TO WARRANT THE
CONCLUSION THAT THEY WERE EMPLOYED . . . WITH DIFFERENT INTENT." 
IBID. 

CIVIL RIGHTS ACT OF 1866, ACT OF APR. 9, 1866, 14 STAT. 27, PROVIDES: 

     "ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT,

IN EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS

  THEREOF TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL

  AND PERSONAL PROPERTY." 

THIS PROVISION WAS ENACTED AS A MEANS TO ENFORCE THE THIRTEENTH
AMENDMENT'S PROCLAMATION THAT "(NEITHER SLAVERY NOR INVOLUNTARY
SERVITUDE . . . SHALL EXIST WITHIN THE UNITED STATES, OR ANY PLACE
SUBJECT TO THEIR JURISDICTION."  SEE JONES V. ALFRED H. MAYER CO., 392
U.S. 409, 437-438 (1968).  "AS ITS TEXTS REVEALS, THE THIRTEENTH
AMENDMENT 'IS NOT A MERE PROHIBITION OF STATE LAWS ESTABLISHING OR
UPHOLDING SLAVERY, BUT AN ABSOLUTE DECLARATION THAT SLAVERY OR
INVOLUNTARY SERVITUDE SHALL NOT EXIST IN ANY PART OF THE UNITED
STATES.'"  CIVIL RIGHTS CASES, 109 U.S. 3, 20 (1883); SEE GRIFFIN V.
BRECKENRIDGE, 403 U.S. 88, 105 (1971); JONES V. ALFRED H. MAYER CO.,
SUPRA, AT 437-440; CLYATT V. UNITED STATES, 197 U.S. 207, 216, 218
(1905).  THUS, IT CANNOT BE DOUBTED THAT THE POWER VESTED IN CONGRESS
TO ENFORCE THIS AMENDMENT INCLUDES THE POWER TO ENACT LAWS OF
NATIONWIDE APPLICATION. 

MOREOVER, LIKE THE AMENDMENT UPON WHICH IT IS BASED, SEC. 1982 IS
NOT A "MERE PROHIBITION OF STATE LAWS ESTABLISHING OR UPHOLDING" RACIAL
DISCRIMINATION IN THE SALE OR RENTAL OF PROPERTY BUT, RATHER, AN
"ABSOLUTE" BAR TO ALL SUCH DISCRIMINATION, PRIVATE AS WELL AS PUBLIC,
FEDERAL AS WELL AS STATE.  CF. JONES V. ALFRED H. MAYER CO., SUPRA, AT
413, 437.  WITH THIS IN MIND, IT WOULD BE ANIMALOUS INDEED IF CONGRESS
CHOSE TO CARVE OUT THE DISTRICT OF COLUMBIA AS THE SOLE EXCEPTION TO AN
ACT OF OTHERWISE UNIVERSAL APPLICATION.  AND THIS IS ALL THE MORE TRUE
WHERE, AS HERE, THE LEGISLATIVE PURPOSES UNDERLYING SEC. 1982 SUPPORT
ITS APPLICABILITY IN THE DISTRICT.  THE DANGERS OF PRIVATE
DISCRIMINATION, FOR EXAMPLE, THAT PROVIDED A FOCAL POINT OF CONGRESS'
CONCERN IN ENACTING THE LEGISLATION, /6/  WERE, AND ARE, AS PRESENT IN
THE DISTRICT OF COLUMBIA AS IN THE STATES, AND THE SAME CONSIDERATIONS
THAT LED CONGRESS TO EXTEND THE PROHIBITIONS OF SEC. 1982 TO THE
FEDERAL GOVERNMENT APPLY WITH EQUAL FORCE TO THE DISTRICT, WHICH IS A
MERE INSTRUMENTALITY OF THAT GOVERNMENT.  THUS, IN THE ABSENCE OF SOME
EXPRESS INDICATION OF LEGISLATIVE INTENT TO THE CONTRARY, /7/  THERE
WAS AMPLE JUSTIFICATION FOR THE HOLDING IN HURD THAT SEC. 1982 WAS
INTENDED TO OUTLAW RACIAL DISCRIMINATION IN THE SALE OR RENTAL OF
PROPERTY IN THE DISTRICT OF COLUMBIA AS WELL AS ELSEWHERE IN THE UNITED
STATES. 

THE SITUATION IS WHOLLY DIFFERENT, HOWEVER, WITH RESPECT TO SEC.
1983.  UNLIKE SEC. 1982, WHICH DERIVES FROM THE CIVIL RIGHTS ACT OF
1866, SEC. 1983 HAS ITS ROOTS IN SEC. 1 OF THE KU KLUX KLAN ACT OF
1871, ACT OF APR. 20, 1871, SEC. 1, 17 STAT. 13.  THIS DISTINCTION HAS
GREAT SIGNIFICANCE, FOR UNLIKE THE 1866 ACT, WHICH WAS PASSED AS A
MEANS TO ENFORCE THE THIRTEENTH AMENDMENT, THE PRIMARY PURPOSE OF THE
1871 ACT WAS "TO ENFORCE THE PROVISIONS OF THE FOURTEENTH AMENDMENT." 
17 STAT. 13; SEE E.G., LYNCH V. HOUSEHOLD FINANCE CORP., 405 U.S. 538,
545 (1972); MONROE V. PAPE, 365 U.S. 167, 171 (1961); SEE ALSO CONG.
GLOBE, 42 CONG., 1ST SESS., APP. 68, 80, 83-85.  AND IT HAS LONG BEEN
RECOGNIZED THAT "(DIFFERENT PROBLEMS OF STATUTORY MEANING ARE PRESENTED
BY TWO ENACTMENTS DERIVING FROM DIFFERENT CONSTITUTIONAL SOURCES.  SEE
THE CIVIL RIGHTS CASES, 109 U.S. 3.  COMPARE UNITED STATES V. WILLIAMS,
(341 U.S. 70), WITH SCREWS V. UNITED STATES, 325 U.S. 91."  MONROE V.
PAPE, SUPRA AT 205-206 (OPINION OF FRANKFURTER, J.). 

IN CONTRAST TO THE REACH OF THE THIRTEENTH AMENDMENT, THE FOURTEENTH
AMENDMENT HAS ONLY LIMITED APPLICABILITY; THE COMMANDS OF THE
FOURTEENTH AMENDMENT ARE ADDRESSED ONLY TO THE STATE OR TO THOSE ACTING
UNDER COLOR OF ITS AUTHORITY.  SEE, E.G., CIVIL RIGHTS CASES, SUPRA;
UNITED STATES V. HARRIS, 106 U.S. 629 (1883); UNITED STATES V.
CRUIKSHANK, 92 U.S. 542 (1876).  THE FOURTEENTH AMENDMENT ITSELF
"ERECTS NO SHIELD AGAINST MERELY PRIVATE CONDUCT, HOWEVER
DISCRIMINATORY OR WRONGFUL."  /8/  SHELLEY V. KRAEMER, 334 U.S. 1, 13
(1948); SEE ALSO UNITED STATES V. PRICE, 383 U.S. 787 (1966); HODGES V.
UNITED STATES, 203 U.S. 1 (1906).  SIMILARLY, ACTIONS OF THE FEDERAL
GOVERNMENT AND ITS OFFICERS ARE BEYOND THE PURVIEW OF THE AMENDMENT. 
AND SINCE THE DISTRICT OF COLUMBIA IS NOT A "STATE" WITHIN THE MEANING
OF THE FOURTEENTH AMENDMENT, SEE BOLLING V. SHARPE, 347 U.S. 497, 499
(1954); SHELLEY V. KRAEMER, SUPRA, AT 8; WIGHT V. DAVIDSON, 181 U.S.
371, 384 (1901), NEITHER THE DISTRICT NOR ITS OFFICERS ARE SUBJECT TO
ITS RESTRICTIONS.  /9/ 

LIKE THE AMENDMENT UPON WHICH IT BASED, SEC. 1983 IS OF ONLY LIMITED
SCOPE.  THE STATUTE DEALS ONLY WITH THOSE DEPRIVATIONS OF RIGHTS THAT
ARE ACCOMPLISHED UNDER THE COLOR OF THE LAW OF "ANY STATE OR
TERRITORY."  /10/  IT DOES NOT REACH PURELY PRIVATE CONDUCT AND, WITH
THE EXCEPTION OF THE TERRITORIES, /11/  ACTIONS OF THE FEDERAL
GOVERNMENT AND ITS OFFICERS ARE AT LEAST FACIALLY EXEMPT FROM ITS
PROSCRIPTIONS.  THUS, UNLIKE THE SITUATION PRESENTED IN HURD, THE
INSTANT CASE DOES NOT INVOLVE A CONSTITUTIONAL PROVISION AND RELATED
STATUTE OF UNIVERSAL APPLICABILITY.  THIS BEING SO, THE CONSIDERATIONS
THAT LED TO AN EXPENSIVE READING OF SEC. 1982 SO AS TO INCLUDE THE
DISTRICT OF COLUMBIA SIMPLY DO NOT APPLY WITH RESPECT TO SEC. 1983.  WE
MUST THEREFORE EXAMINE THE LEGISLATIVE HISTORY OF SEC. 1983 TO
DETERMINE WHETHER THE PURPOSES FOR WHICH THE ACT WAS ADOPTED SUPPORT A
SIMILARLY BROAD CONSTRUCTION. 

        II 

ANY ANALYSIS OF THE PURPOSES AND SCOPE OF SEC. 1983 MUST TAKE
COGNIZANCE OF THE EVENTS AND PASSIONS OF THE TIME AT WHICH IT WAS
ENACTED.  /12/  AFTER THE CIVIL WAR ENDED IN 1865, RACE RELATIONS IN
THE SOUTH BECAME INCREASINGLY TURBULENT.  THE KU KLUX KLAN WAS
ORGANIZED BY SOUTHERN WHITES IN 1866, AND A WAVE OF MURDERS AND
ASSAULTS WAS LAUNCHED AGAINST BOTH BLACKS AND UNION SYMPATHIZERS.  /13/
THUS, AT THE OPENING OF THE 42D CONGRESS, CONSIDERABLE APPREHENSION
WAS EXPRESSED BY REPUBLICANS ABOUT THE INSECURITY OF LIFE AND PROPERTY
IN THE SOUTH, /14/  AND ON MARCH 23, 1871, PRESIDENT GRANT SENT A
MESSAGE TO CONGRESS REQUESTING ADDITIONAL FEDERAL LEGISLATION TO CURB
THIS RISING TIDE OF VIOLENCE.  SUCH LEGISLATION WAS DEEMED ESSENTIAL IN
LIGHT OF THE INABILITY OF THE STATE GOVERNMENTS TO CONTROL THE
SITUATION.  /15/  FIVE DAYS LATER, CONGRESSMAN SHELLABARGER OF OHIO
INTRODUCED THE BILL THAT EVENTUALLY WAS TO BECOME THE KU KLUX KLAN ACT
OF 1871.  /16/ 

ALTHOUGH THERE ARE THREADS OF MANY THOUGHTS RUNNING THROUGH THE
DEBATES ON THE 1871 ACT, IT SEEMS CLEAR THAT SEC. 1 OF THE ACT, WITH
WHICH WE ARE HERE CONCERNED, WAS DESIGNED PRIMARILY IN RESPONSE TO THE
UNWILLINGNESS OR INABILITY OF THE STATE GOVERNMENTS TO ENFORCE THEIR
OWN LAWS AGAINST THOSE VIOLATING THE CIVIL RIGHTS OF OTHERS.  /17/
THUS, WHILE THE KLAN ITSELF PROVIDED THE PRINCIPAL CATALYST FOR THE
LEGISLATION, THE REMEDY CREATED IN SEC. 1 "WAS NOT A REMEDY AGAINST
(THE KLAN) OR ITS MEMBERS BUT AGAINST THOSE WHO REPRESENTING A STATE IN
SOME CAPACITY WERE UNABLE OR UNWILLING TO ENFORCE A STATE LAW."  MONROE
V. PAPE, 365 U.S., AT 175-176.  SENATOR PRATT OF INDIANA SUMMARIZED
THIS CONCERN WHEN HE SAID:  /18/ 

     "(OF THE HUNDREDS OF OUTRAGES COMMITTED UPON LOYAL PEOPLE

  THROUGH THE AGENCY OF THIS KU KLUX ORGANIZATION NOT ONE HAS BEEN

  PUNISHED.  THIS DEFECT IN THE ADMINISTRATION OF THE LAWS DOES NOT

  EXTEND TO OTHER CASES.  VIGOROUSLY ENOUGH ARE THE LAWS ENFORCED

  AGAINST UNION PEOPLE.  THEY ONLY FAIL IN EFFICIENCY WHEN A MAN OF

  KNOWN UNION SENTIMENTS, WHITE OF BLACK, INVOKES THEIR AID. 

THEN JUSTICE CLOSES THE DOOR OF HER TEMPLES."  SIMILARLY, CONGRESSMAN
HOAR OF MASSACHUSETTS STATED:  /19/ 

  "NOW, IT IS AN EFFECTUAL DENIAL BY A STATE OF THE EQUAL

  PROTECTION OF THE LAWS WHEN ANY CLASS OF OFFICERS CHARGED UNDER

  THE LAWS WITH THEIR ADMINISTRATION PERMANENTLY AND AS A RULE

  REFUSE TO EXTEND THAT PROTECTION.  IF EVERY SHERIFF IN SOUTH

  CAROLINA REFUSES TO SERVE A WRIT FOR A COLORED MAN AND THOSE

  SHERIFFS ARE KEPT IN OFFICE YEAR AFTER YEAR BY THE PEOPLE OF

  SOUTH CAROLINA, AND NO VERDICT AGAINST THEM FOR THEIR FAILURE OF

  DUTY CAN BE OBTAINED BEFORE A SOUTH CAROLINA JURY, THE STATE OF

  SOUTH CAROLINA, THROUGH THE CLASS OF OFFICERS WHO ARE ITS

  REPRESENTATIVES TO AFFORD THE EQUAL PROTECTION OF THE LAWS TO

  THAT CLASS OF CITIZENS, HAS DENIED THAT PROTECTION." 

TO THE RECONSTRUCTION CONGRESS, THE NEED FOR SOME FORM OF FEDERAL
INTERVENTION WAS CLEAR.  IT WAS EQUALLY CLEAR, HOWEVER, THAT CONGRESS
HAD NEITHER THE MEANS NOR THE AUTHORITY TO EXERT ANY DIRECT CONTOL, ON
A DAY-TO-DAY BASIS, OVER THE ACTIONS OF STATE OFFICIALS.  THE SOLUTION
CHOSEN WAS TO INVOLVE THE FEDERAL JUDICIARY.  AT THE TIME THIS ACT WAS
ADOPTED, IT MUST BE REMEMBERED, THERE EXISTED NO GENERAL FEDERAL
QUESTION JURISDICTION IN THE LOWER FEDERAL COURTS.  /20/  RATHER,
"CONGRESS RELIED ON THE STATE COURTS TO VINDICATE ESSENTIAL RIGHTS
ARISING UNDER THE CONSTITUTION AND FEDERAL LAWS."  /21/  ZWICKLER V.
KOOTA, 389 U.S. 241, 245 (1967).  WITH THE GROWING AWARENESS THAT THIS
RELIANCE HAD BEEN MISPLACED, HOWEVER, CONGRESS RECOGNIZED THE NEED FOR
ORIGINAL FEDERAL COURT JURISDICITON AS A MEANS TO PROVIDE AT LEAST
INDIRECT FEDERAL CONTROL OVER THE UNCONSTITUTIONAL ACTIONS OF STATE
OFFICIALS.  /22/  CONGRESSMAN COBURN EXPLAINED:  /23/ 

"THE UNITED STATES COURTS ARE FURTHER ABOVE MERE LOCAL

  INFLUENCE THAN THE COUNTY COURTS; THEIR JUDGES CAN ACT WITH MORE

  INDEPENDENCE, CANNOT BE PUT UNDER TERROR, AS LOCAL JUDGES CAN;

  THEIR SYMPATHIES ARE NOT SO NEARLY IDENTIFIED WITH THOSE OF THE

  VICINAGE; THE JURORS ARE TAKEN FROM THE STATE, AND NOT THE

  NEIGHBORHOOD; THEY WILL BE ABLE TO RISE ABOVE PREJUDICES OR BAD

  PASSIONS OR TERROR MORE EASILY . . . . WE BELIEVE THAT WE CAN

  TRUST OUR UNITED STATES COURTS, AND WE PROPOSE TO DO SO." 

THUS, IN THE FINAL ANALYSIS, SEC. 1 OF THE 1871 ACT MAY BE VIEWED AS AN
EFFORT "TO AFFORD A FEDERAL RIGHT IN FEDERAL COURTS BECAUSE, BY REASON
OF PREJUDICE, PASSION, NEGLECT, INTOLERANCE OR OTHERWISE, STATE LAWS
MIGHT NOT BE ENFORCED AND THE CLAIMS OF CITIZENS TO THE ENJOYMENT OF
RIGHTS, PRIVILEGES, AND IMMUNITIES GUARANTEED BY THE FOURTEENTH
AMENDMENT MIGHT BE DENIED BY THE STATE AGENCIES."  MONROE V. PAPE, 365
U.S., AT 180. 

THERE WAS NO NEED, HOWEVER, TO CREATE FEDERAL COURT JURISDICTION FOR
THE DISTRICT OF COLUMBIA.  EVEN PRIOR TO 1871, THE COURTS OF THE
DISTRICT POSSESSED GENERAL JURISDICTION OVER BOTH FEDERAL AND LOCAL
MATTERS.  ACT OF MAR. 3, 1863, C. 91, 12 STAT. 762.  THUS, THE
JURISDICTIONAL ASPECTS OF SEC. 1 OF THE 1871 ACT WERE ENTIRELY
SUPERFLUOUS WITH RESPECT TO THE DISTRICT.  MOREOVER, WHILE CONGRESS WAS
UNABLE TO EXERT ANY DIRECT CONTROL OVER THE ACTIONS OF STATE OFFICIALS,
IT WAS AUTHORIZED UNDER ART. I, SEC. 8, CL. 17, OF THE CONSTITUTION TO
EXERCISE PLENARY POWER OVER THE DISTRICT OF COLUMBIA AND ITS OFFICERS. 
/24/  INDEED, "(THE POWER OF CONGRESS OVER THE DISTRICT OF COLUMBIA
INCLUDES ALL THE LEGISLATIVE POWERS WHICH A STATE MAY EXERCISE OVER ITS
AFFAIRS."  BERMAN V. PARKER, 348 U.S. 26, 31 (1954); SEE DISTRICT OF
COLUMBIA V. THOMPSON CO., 346 U.S. 100, 108 (1953); NATIONAL INSURANCE
CO. V. TIDEWATER CO., 337 U.S. 582, 602 (1949); KENDALL V. UNITED
STATES, 12 PET. 524, 619 (1838).  AND SINCE THE DISTRICT IS ITSELF THE
SEAT OF THE NATIONAL GOVERNMENT, CONGRESS WAS IN A POSITION TO OBSERVE
AND, TO A LARGE EXTENT, SUPERVISE THE ACTIVITIES OF LOCAL OFFICIALS. 
/25/  THUS, THE RATIONALE UNDERLYING CONGRESS' DECISION NOT TO ENACT
LEGISLATION SIMILAR TO SEC. 1983 WITH RESPECT TO FEDERAL OFFICIALS--
THE ASSUMPTION THAT THE FEDERAL GOVERNMENT COULD KEEP ITS OWN OFFICES
UNDER CONTROL-- IS EQUALLY APPLICABLE TO THE SITUATION THEN EXISTING IN
THE DISTRICT OF COLUMBIA. 

IT IS TRUE, OF COURSE, THAT CONGRESS ALSO POSSESSED PLENARY POWER
OVER THE TERRITORIES.  /26/  FOR PRACTICAL REASONS, HOWEVER, EFFECTIVE
FEDERAL CONTROL OVER THE ACTIVITIES OF TERRITORIAL OFFICIALS WAS
VIRTUALLY IMPOSSIBLE.  INDEED, "THE TERRITORIES WERE NOT RULED
IMMEDIATELY FROM WASHINGTON; IN A DAY OF POOR ROADS AND SLOW MAILS, IT
WAS UNTHINKABLE THAT THEY SHOULD BE.  RATHER, CONGRESS LEFT MUNICIPAL
LAW TO BE DEVELOPED LARGELY BY THE TERRITORIAL LEGISLATURES, WITHIN THE
FRAMEWORK OF ORGANIC ACTS AND SUBJECT TO A RETAINED POWER OF VETO.  THE
SCOPE OF SELF-GOVERNMENT EXERCISED UNDER THESE DELEGATIONS WAS NEARLY
AS BROAD AS THAT ENJOYED BY THE STATES . . . . "  GLIDDEN CO. V.
ZDANOK, 370 U.S. 530, 546 (1962); SEE ALSO E. POMEROY, THE TERRITORIES
AND THE UNITED STATES 1861-1890, P. 92 (1947); H.R. REP. NO. 440, 48TH
CONG., 1ST SESS. (1884); S. REP. NO. 1249, 49TH CONG., 1ST SESS.
(1886).  THUS, ALTHOUGH THE CONSTUTUTION VESTED CONTROL OVER THE
TERRITORIES IN THE CONGRESS, ITS PRACTICAL CONTROL WAS BOTH "CONFUSED
AND INEFFECTIVE,"  /27/  MAKING THE PROBLEM OF ENFORCEMENT OF CIVIL
RIGHTS IN THE TERRITORIES MORE SIMILAR TO THE PROBLEM AS IT EXISTED IN
THE STATES THAN IN THE DISTRICT OF COLUMBIA.  /28/ 

MOREOVER, THE EFFORT TO ANALOGIZE THE DISTRICT OF COLUMBIA TO THE
TERRITORIES IN THIS CONTEXT FACES STRONG THEORETICAL OBSTACLES.  THE
TERRITORIAL STATE HAS APTLY BEEN DESCRIBED AS "ONE OF PUPILAGE AT
BEST."  NELSON V. UNITED STATES, 30 F. 112, 115 (ORE.  1887).  FROM THE
MOMENT OF THEIR CREATION, THE TERRITORIES WERE DESTINED FOR ADMISSION
AS STATES INTO THE UNION, AND "AS A PRELIMINARY STEP TOWARD THAT
FOREORDAINED END-- TO TIDE OVER THE PERIOD OF INELIGIBILITY-- CONGRESS,
FROM TIME TO TIME, CREATED TERRITORIAL GOVERNMENTS, THE EXISTENCE OF
WHICH WAS NECESSARILY LIMITED TO THE PERIOD OF PUPILAGE."  O'CONOGHUE
V. UNITED STATES, 289 U.S. 516, 537 (1933); SEE MCALLISTER V. UNITED
STATES, 141 U.S. 174, 188 (1891).  THUS, IN LIGHT OF THE TRANSITORY
NATURE OF THE TERRITORIAL CONDITION, CONGRESS COULD REASONABLY TREAT
THE TERRITORIES AS INCHOATE STATES, QUITE SIMILAR IN MANY RESPECTS TO
THE STATES THEMSELVES, TO WHOSE STATUS THEY WOULD INEVITABLY ASCEND. 

THE DISTRICT OF COLUMBIA, ON THE OTHER HAND, "IS AN EXCEPTIONAL
COMMUNITY . . . ESTABLISHED UNDER THE CONSTITUTION AS THE SEAT OF THE
NATIONAL GOVERNMENT."  DISTRICT OF COLUMBIA V. MURPHY, 314 U.S. 441,
452 (1941).  AS SUCH, IT "IS AS LASTING AS THE STATES FROM WHICH IT WAS
CARVED OR THE UNION WHOSE PERMANENT CAPITAL IT BECAME."  O'DONOGHUE V.
UNITED STATES, SUPRA, AT 538.  INDEED, IT IS "THE VERY HEART-- OF THE
UNION ITSELF, TO BE MAINTAINED AS THE 'PERMANENT' ABIDING PLACE OF ALL
ITS SUPREME DEPARTMENTS, AND WITHIN WHICH THE IMMENSE POWERS OF THE
GENERAL GOVERNMENT WERE DESTINED TO BE EXERCISED.  . . . "  ID., AT
539.  UNLIKE EITHER THE STATES OR TERRITORIES, THE DISTRICT IS TRULY
SUI GENERIS IN OUR GOVERNMENTAL STRUCTURE. 

WITH THIS UNIQUE STATUS OF THE DISTRICT OF COLUMBIA IN MIND, AND IN
THE ABSENCE OF ANY INDICATION IN THE LANGUAGE, PURPOSES, OR HISTORY OF
SEC. 1983 OF A LEGISLATIVE INTENT TO INCLUDE THE DISTRICT WITHIN THE
SCOPE OF ITS COVERAGE, THE CONCLUSION IS COMPELLED THAT THE COURT OF
APPEALS ERRED IN HOLDING THAT THE DISTRICT OF COLUMBIA CONSTITUTES A
"STATE OR TERRITORY" WITHIN THE MEANING OF SEC. 1983.  JUST AS "(WE ARE
NOT AT LIBERTY TO SEEK INGENIOUS ANALYTICAL INSTRUMENTS" TO AVOID
GIVING A CONGRESSIONAL ENACTMENT THE BROAD SCOPE ITS LANGUAGE AND
ORIGINS MAY REQUIRE, UNITED STATES V. PRICE, 383 U.S., AT 801, SO TOO
ARE WE NOT AT LIBERTY TO RECAST THIS STATUTE TO EXPAND ITS APPLICATION
BEYOND THE LIMITED REACH CONGRESS GAVE IT.  THIS IS NOT TO SAY, OF
COURSE, THAT A CLAIM, SUCH AS A POSSIBLE CLAIM AGAINST OFFICER CARLSON,
OF ALLEGED DEPRIVATION OF CONSTITUTIONAL RIGHTS IS NOT LITIGABLE IN THE
FEDERAL COURTS OF THE DISTRICT.  SEE BIVENS V. SIX UNKNOWN NAMED AGENTS
OF THE FEDERAL BUREAU OF NARCOTICS, 403 U.S. 388 (1971); BELL V. HOOD,
327 U.S. 678 (1946).  BUT INSOFAR AS THE JUDGMENT OF THE COURT OF
APPEALS SUSTAINING RESPONDENT'S CLAIMS RESTED ON SEC. 1983, THAT
JUDGMENT MUST BE, AND IS,

              REVERSED. 

/1/  KU KLUX KLAN ACT OF 1871, ACT OF APR. 20, 1871, SEC. 1, 17
STAT. 13, REV. STAT. SEC. 1979, 42 U.S.C. 1983. 

/2/  OFFICER CARLSON WAS NEVER FOUND FOR SERVICE OF PROCESS.  THE
PRECINCT CAPTAIN AND POLICE CHIEF MOVED TO DISMISS THE COMPLAINT ON THE
GROUND THAT IT FAILED TO STATE A CLAIM FOR WHICH RELIEF COULD BE
GRANTED.  THEIR SUPPORTING MEMORANDUM ARGUED THAT NO TORT ON THEIR PART
HAD BEEN COMMITTED, AND THAT IN ANY EVENT THEY WERE PROTECTED BY THE
DOCTRINE OF OFFICIAL IMMUNITY.  THE DISTRICT OF COLUMBIA MOVED TO
DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM, AND ALSO ON THE
GROUND OF SOVEREIGN IMMUNITY. 

/3/  WE THEREFORE HAVE NO OCCASION TO DETERMINE WHETHER, AS URGED BY
PETITIONER, THE DISTRICT IS NOT A "PERSON" FOR THE PURPOSE OF 42 U.S.C.
1983.  IN ADDITION, WE INTIMATE NO VIEW ON THE MERITS OF RESPONDENT'S
CLAIMS INSOFAR AS THEY ARE PREDICATED ON OTHER THEORIES OF LIABILITY. 

/4/  COMPARE HURD V. HODGE, 334 U.S. 24 (1948); TALBOTT V. SILVER
BOW COUNTY, 139 U.S. 438 (1891); GEOFROY V. RIGGS, 133 U.S. 258 (1890);
CALLAN V. WILSON, 127 U.S. 540 (1888), WITH BOLLING V. SHARPE, 347 U.S.
497 (1954); WIGHT V. DAVIDSON, 181 U.S. 371 (1901); HEPBURN V. ELLZEY,
2 CRANCH 445 (1805). 

/5/  THE COURT OF APPEALS ALSO CITED SEWELL V. PEGELOW, 291 F.2D 196
(CA4 1961), WHICH, RELYING UPON HURD, ALSO HELD THAT THE DISTRICT OF
COLUMBIA IS A "STATE OR TERRITORY" WITHIN THE MEANING OF SEC. 1983. 
THAT DECISION IS LIKEWISE DISAPPROVED. 

/6/  SEE JONES V. ALFRED H. MAYER CO., 392 U.S. 409, 422-436(1968). 

/7/  ALTHOUGH THE LEGISLATIVE DEBATE OVER THE 1866 ACT DID NOT FOCUS
SPECIFICALLY ON THE DISTRICT, THERE ARE NUMEROUS INDICATIONS THAT THE
ACT WAS DESIGNED TO "EXTEND TO ALL PARTS OF THE COUNTRY."  CONG. GLOVE,
39TH CONG., 1ST SESS., 322 (SEN. TRUMBULL); SEE E.G., ID., AT 426,
474. 

/8/  THIS IS NOT TO SAY, OF COURSE, THAT CONGRESS MAY NOT PROSCRIBE
PURELY PRIVATE CONDUCT UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT.  SEE
UNITED STATES V. GUEST, 383 U.S. 745, 762 (1966) (CLARK, J.,
CONCURRING); ID., AT 782-784 (BRENNAN, J., CONCURRING AND DISSENTING). 
CF. KATZENBACH V. MORGAN, 384 U.S. 642 (1966). 

/9/  THUS, UNLIKE THE SITUATION WITH RESPECT TO SEC. 1982 AND THE
THIRTEENTH AMENDMENT, INCLUSION OF THE DISTRICT OF COLUMBIA IN SEC.
1983 CANNOT BE SUBSUMED UNDER CONGRESS' POWER TO ENFORCE THE FOURTEENTH
AMENDMENT, BUT, RATHER, WOULD NECESSITATE A WHOLLY SEPARATE EXERCISE OF
CONGRESS' POWER TO LEGISLATE FOR THE DISTRICT UNDER ART. I, SEC. 8, CL.
17. 

/10/  IT SHOULD BE OBSERVED THAT, UNLIKE SEC. 1982, WHICH USES THE
PHRASE "EVERY STATE AND TERRITORY" AS A MERE GEOGRAPHICAL DESCRIPTION,
THE EXPRESSION "ANY STATE OR TERRITORY" IN SEC. 1983 CONSTITUTES A
SUBSTANTIVE LIMITATION UPON THE TYPES OF CONDUCT THAT ARE PROHIBITED. 

/11/  AS INITIALLY ENACTED, SEC. 1 OF THE 1871 ACT APPLIED ONLY TO
ACTION UNDER COLOR OF THE LAW OF ANY "STATE."  17 STAT. 13.  THE PHRASE
"OR TERRITORY" WAS ADDED, WITHOUT EXPLANATION, IN THE 1874 CODIFICATION
AND REVISION OF THE UNITED STATES STATUTES AT LARGE.  REV. STAT. SEC.
1979 (1874).  SINCE THE TERRITORIES ARE NOT "STATES"  WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT, SEE SOUTH PORTO RICO SUGAR CO. V.
BUSCAGLIA, 154 F.2D 96, 101 (CA1 1946); ANDERSON V. SCHOLES, 83
F.SUPP.  681, 687 (ALASKA 1949), THIS ADDITION PRESUMABLY WAS AN
EXERCISE OF CONGRESS' POWER TO REGULATE THE TERRITORIES UNDER ART. IV,
SEC. 3, CL. 2. 

/12/  SEE GENERALLY K. STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877
(1965); A. NEVINS, THE EMERGENCE OF MODERN AMERICA, 1865-1878 (1927). 

/13/  SEE NEVINS, SUPRA, N. 12, AT 351.  FOR AN APPRECIATION OF THE
NATURE AND CHARACTER OF THE KU KLUX KLAN AS IT APPEARED TO CONGRESS IN
1871, SEE S. REP. NO. 1, 42D CONG., 1ST SESS. (1871), AND THE
VOLUMINOUS REPORT OF THE JOINT SELECT COMMITTEE TO INQUIRE INTO THE
CONDITION OF AFFAIRS IN THE LATE INSURRECTIONARY STATES, PUBLISHED AS
S. REP. NO. 41, PTS.  1-13 AND H.R. REP. NO. 22, PTS.  1-13, 42D CONG.,
2D SESS. (1872). 

/14/  SEE CONG. GLOBE, 42D CONG., 1ST SESS. 116-117. 

/15/  SEE ID., AT APP. 226. 

/16/  SEE CONG. GLOBE, 42D CONG., 1ST SESS., 317. 

/17/  SEE, E.G., ID., AT 154-159 (SEN. SHERMAN), 322 (CONG.
STOUGHTON), 374 (CONG. LOWE), 428 (CONG. BEATTY), 516-519 (CONG.
SHELLABARGER), 653 (SEN. OSBORN); ID., AT APP. 72 (CONG. BLAIR), 78
(CONG. PERRY), 100-110 (SEN. POOL). 

/18/  CONG. GLOBE, 42D CONG., 1ST SESS., 505. 

/19/  ID., AT 334. 

/20/  ORIGINAL "ARISING UNDER" JURISDICTION, PURSUANT TO ART. III,
SEC. 2, CL. 1, WAS VESTED IN THE FEDERAL COURTS BY SEC. 11 OF THE ACT
OF FEB. 13, 1801, 2 STAT. 92, BUT WAS REPEALED ONLY A YEAR LATER BY
SEC. 1 OF THE ACT OF MAR. 8, 1802, C. 8, SEC. 1, 2 STAT. 132.  IT WAS
NOT UNTIL 1875 THAT CONGRESS GRANTED THE FEDERAL COURTS "ORIGINAL
COGNIZANCE, CONCURRENT WITH THE COURTS OF THE SEVERAL STATES, OF ALL
SUITS OF A CIVIL NATURE AT COMMON LAW OR IN EQUITY, WHERE THE MATTER IN
DISPUTE EXCEEDS, EXCLUSIVE OF COSTS, THE SUM OR VALUE OF FIVE HUNDRED
DOLLARS, AND ARISING UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES . . . . "  ACT OF MAR. 3, 1875, SEC. 1, 18 STAT. 470.  THE
JURISDICTIONAL AMOUNT HAS SINCE BEEN RAISED FROM $500 TO $2,000 BY THE
ACT OF MAR. 3, 1887, SEC. 1, 24 STAT. 552; TO $3,000 BY THE ACT OF MAR.
3, 1911, SEC. 24, 36 STAT. 1091; AND TO $10,000 BY THE ACT OF JULY 25,
1958, 72 STAT. 415.  THE PROVISION IS NOW CODIFIED AS 28 U.S.C.
1331(A). 

/21/  THE ONLY EXCEPTION WAS SEC. 25 OF THE JUDICIARY ACT OF 1789, 1
STAT. 85, PROVIDING FOR SUPREME COURT REVIEW WHENEVER A CLAIM OF
FEDERAL RIGHT WAS DENIED BY A STATE COURT. 

/22/  THUS, AS ORIGINALLY ENACTED, SEC. 1 OF THE 1871 ACT PROVIDED
THAT THE PROCEEDINGS AUTHORIZED BY THE ACT ARE "TO BE PROSECUTED IN THE
SEVERAL DISTRICT OR CIRCUIT COURTS OF THE UNITED STATES.  . . . "  17
STAT. 13.  THIS ASPECT OF SEC. 1 IS NOW CODIFIED AS 28 U.S.C. 1343(3). 

/23/  CONG. GLOBE, 42D CONG., 1ST SESS., 460. 

/24/  IN PERTINENT PART, ART. I, SEC. 8, CL. 17, OF THE CONSTITUTION
PROVIDES THAT CONGRESS SHALL HAVE POWER "(TO EXERCISE EXCLUSIVE
LEGISLATION IN ALL CASES WHATSOEVER, OVER SUCH DISTRICT . . . AS MAY .
. . BECOME THE SEAT OF GOVERNMENT OF THE UNITED STATES . . . . " 

/25/  THE DISTRICT OF COLUMBIA POLICE SYSTEM, FOR EXAMPLE, WAS
OPERATED UNDER THE DIRECTION OF A BOARD OF FIVE COMMISSIONERS APPOINTED
BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE.  THE
STATUTES CREATING THE M METROPOLITAN POLICE SYSTEM ESTABLISHED A
NETWORK OF REGULATIONS AND REPORTING REQUIREMENTS THAT ENABLED THE
FEDERAL GOVERNMENT TO KEEP A WATCHFUL EYE OVER POLICE CONDUCT.  SEE ACT
OF AUG. 6, 1861, 12 STAT. 320; ACT OF JULY 16, 1862, 12 STAT. 578. 
RESPONDENT SEEKS TO MAKE MUCH OF THE FACT THAT, IN 1871, CONGRESS
ESTABLISHED A "TERRITORIAL" FORM OF GOVERNMENT FOR THE DISTRICT OF
COLUMBIA, WITH A GOVERNOR AND LEGISLATIVE ASSEMBLY, TO WHICH THE
GENERAL ADMINISTRATION OF THE AFFAIRS OF THE DISTRICT WAS COMMITTED. 
ACT OF FEB. 21, 1871, 16 STAT. 419.  IN LIGHT OF THIS DEVELOPMENT,
RESPONDENT ARGUES, CONGRESS MUST HAVE INTENDED THE WORD "TERRITORY" IN
SEC. 1 OF THE KU KLUX KLAN ACT TO INCLUDE THE DISTRICT OF COLUMBIA. 
WHAT RESPONDENT APPARENTLY OVERLOOKS, HOWEVER, IS THAT ON JUNE 20,
1874, THE VERY DAY THAT THE PHRASE "OR TERRITORY" WAS FORMALLY ENACTED
INTO THE REVISED VERSION OF SEC. 1 OF THE KU KLUX KLAN ACT, SEE N. 11,
SUPRA, CONGRESS ALSO ABOLISHED THE "TERRITORIAL" FORM OF GOVERNMENT IN
THE DISTRICT AND, IN ITS STEAD, AUTHORIZED THE PRESIDENT, WITH THE
ADVICE AND CONSENT OF THE SENATE, TO APPOINT A COMMISSION OF THREE
MEMBERS TO EXERCISE THE POWER PREVIOUSLY VESTED IN THE GOVERNOR AND
ASSEMBLY.  ACT OF JUNE 20, 1874, C. 337, 18 STAT. 116. 

/26/  ARTICLE IV, SEC. 3, CL. 2, PROVIDES:  "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 . . . . " 

/27/  E. POMEROY, THE TERRITORIES AND THE UNITED STATES 1861-1890,
P. 4 (1947). 

/28/  MOREOVER, UNLIKE THE COURTS OF GENERAL JURISDICTION IN THE
DISTRICT OF COLUMBIA, WHICH WERE CREATED UNDER THE AUTHORITY VESTED IN
CONGRESS BY ART. III, SEC. 1, SEE O'DONOGHUE V. UNITED STATES, 289 U.S.
516 (1933), THE FEDERAL COURTS IN THE TERRITORIES WERE ESTABLISHED
UNDER ART. IV, SEC. 3, CL. 2, SEE GLIDDEN CO. V. ZDANOK, 370 U.S. 530
(1962); AMERICAN INSURANCE CO. V. CANTER, 1 PET. 511 (1828).  THIS
DISTINCITON ALSO HAS SIGNIFICANCE FOR OUR PROBLEM FOR, UNLIKE JUDGES IN
THE DISTRICT, TERRITORIAL JUDGES WERE APPOINTED FOR TERMS OF ONLY FOUR
YEARS.  REV. STAT. SEC. 1864(1874).  AS A RESULT, THE TERRITORIAL
JUDGES WERE PECULIARLY SUSCEPTIBLE TO LOCAL PRESSURES, SINCE THEIR
REAPPOINTMENTS WERE OFTEN DEPENDENT UPON FAVORABLE RECOMMENDATIONS OF
THE TERRITORIAL LEGISLATURES.  SEE POMEROY, SUPRA, N. 27, AT 98-102. 

RICHARD W. BARTON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE C. FRANCIS MURPHY AND DAVID P. SUTTON. 

WARREN K. KAPLAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BREIF WERE MELVIN L. WULF, RALPH J. TEMPLE, AND ROBERT W. BORAKS. 
..END :










UNITED STATES V. KRAS, 409 U.S. 434 


       UNITED STATES V. KRAS

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF NEW YORK

        NO. 71-749.  ARGUED OCTOBER 18, 1972-- DECIDED JANUARY 10,

           1973 


APPELLEE, AN INDIGENT WHO FILED A VOLUNTARY PETITION IN BANKRUPTCY,
SOUGHT DISCHARGE WITHOUT PAYMENT OF THE FEES, AGGREGATING NO MORE THAN
$50, THAT ARE A PRECONDITION TO DISCHARGE IN SUCH A PROCEEDING.  THE
DISTRICT COURT, RELYING PRIMARILY ON BODDIE V. CONNECTICUT, 401 U.S.
371 (WHERE THE COURT HELD THAT A STATE COULD NOT CONSISTENTLY WITH DUE
PROCESS AND EQUAL PROTECTION REQUIREMENTS, DENY ACCESS TO DIVORCE
COURTS TO INDIGENTS UNABLE TO PAY FILING AND OTHER FEES), HELD THE
BANKRUPTCY FEE PROVISIONS, AS APPLIED TO APPELLEE, AN UNCONSTITUTIONAL
DENIAL OF FIFTH AMENDMENT RIGHTS OF DUE PROCESS, INCLUDING EQUAL
PROTECTION.  HELD:  THIS CASE IS NOT CONTROLLED BY BODDIE, SUPRA.  FOR
HERE ACCESS TO COURTS IS NOT THE ONLY CONCEIVABLE RELIEF AVAILABLE TO
BANKRUPTS; THE FILING-FEE REQUIREMENT DOES NOT DENY AN INDIGENT THE
EQUAL PROTECTION OF THE LAWS, SINCE THERE IS NO CONSTITUTIONAL RIGHT TO
OBTAIN A DISCHARGE OF ONE'S DEBTS IN BANKRUPTCY; THE RIGHT TO A
DISCHARGE IN BANKRUPTCY IS NOT A "FUNDAMENTAL" RIGHT DEMANDING A
COMPELLING GOVERNMENTAL INTEREST AS A PRECONDITION TO REGULATION; AND
THERE IS A RATIONAL BASIS FOR THE FEE REQUIREMENT.  PP. 443-450. 

331 F.SUPP.  1207, REVERSED. 

BLACKMAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, POWELL, AND REHNQUIST, JJ., JOINED.  BURGER, C. J.,
FILED A CONCURRING OPINION, POST, P. 450.  STEWART, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND MARSHALL, JJ.,
JOINED, POST, P. 451.  DOUGLAS AND BRENNAN, JJ., FILED A DISSENTING
OPINION, POST, P. 457.  MARSHALL, J., FILED A DISSENTING OPINION, POST,
P. 458. 

MR. JUSTICE BLACKMAN DELIVERED THE OPINION OF THE COURT. 

THE BANKRUPTCY ACT AND ONE OF THIS COURT'S COMPLEMENTARY ORDERS IN
BANKRUPTCY IMPOSE FEES AND MAKE THE PAYMENT OF THOSE FEES A CONDITION
TO A DISCHARGE IN VOLUNTARY BANKRUPTCY. 

APPELLEE KRAS, AN INDIGENT PETITIONER IN BANKRUPTCY, CHALLENGED THE
FEES ON FIFTH AMENDMENT GROUNDS.  UPON RECEIVING NOTICE OF THE
CONSTITUTIONAL ISSUE IN THE DISTRICT COURT, THE GOVERNMENT MOVED TO
ITNERVENE AS OF RIGHT UNDER 28 U.S.C. 2403 AND RULE 24(A) OF THE
FEDERAL RULES OF CIVIL PROCEDURE.  LEAVE TO INTERVENE WAS GRANTED.  THE
DISTRICT COURT HELD THE FEE PROVISIONS TO BE UNCONSTITUTIONAL AS
APPLIED TO KRAS.  331 F.SUPP.  1207 (EDNY 1971).  IT REACHED THIS
CONCLUSION IN THE FACE OF AN EARLIER CONTRARY HOLDING BY A UNANIMOUS
FIRST CIRCUIT.  IN RE GARLAND, 428 F.2D 1185 (1970), CERT. DENIED, 402
U.S. 966 (1971).  PURSUANT TO 28 U.S.C. 1252, THE GOVERNMENT APPEALED. 
WE NOTED PROBABLE JURISDICTION.  405 U.S. 915 (1972). 

        I 

THAT, UPON THE EXPIRATION OF THE TIME FIXED BY THE COURT FOR FILING OF
OBJECTIONS, "THE COURT SHALL DISCHARGE THE BANKRUPT IF NO OBJECTION HAS
BEEN FILED AND IF THE FILING FEES REQUIRED TO BE PAID BY THIS TITLE
HAVE BEEN PAID IN FULL."  SECTION 14(C), 11 U.S.C. 32(C), SIMILARLY
PROVIDES THAT THE COURT "SHALL GRANT THE DISCHARGE UNLESS SATISFIED
THAT THE BANKRUPT . . . (8) HAS FAILED TO PAY THE FILING FEES REQUIRED
TO BE PAID BY THIS TITLE IN FULL."  SECTION 59(G), 11 U.S.C. 95(G),
RELATES TO THE DISMISSAL OF A PETITION IN BANKRUPTCY AND STATES THAT
"IN THE CASE OF A DISMISSAL FOR FAILURE TO PAY THE COSTS," NOTICE TO
CREDITORS SHALL NOT BE REQUIRED.  THREE SEPARATE SECTIONS OF THE ACT
THUS CONTEMPLATE THE IMPOSITION OF FEES AND CONDITION A DISCHARGE UPON
PAYMENT OF THOSE FEES. 

THREE CHARGES ARE IMPOSED: $37 FOR THE REFEREE'S SALARY AND EXPENSE
FUND, $10 FOR COMPENSATION OF THE TRUSTEE, /1/  AND $3 FOR THE CLERK'S
SERVICES.  SECS. 40(C)(1), 48 (C), AND 52(A), 11 U.S.C. 68(C)(1),
76(C), AND 80(A).  THESE TOTAL $50.  /2/  THE FEES ARE PAYABLE UPON THE
FILING OF THE PETITION.  SECTION 40(C)(1), HOWEVER, CONTAINS A PROVISO
THAT IN CASES OF VOLUNTARY BANKRUPTCY, ALL THE FEES "MAY BE PAID IN
INSTALLMENTS, IF SO AUTHORIZED BY GENERAL ORDER OF THE SUPREME COURT OF
THE UNITED STATES." 

THE COURT'S GENERAL ORDER IN BANKRUPTCY NO. 35(4), AS AMENDED JUNE
23, 1947, 331 U.S. 873, 876-877, 11 U.S.C. APP., P. 2210, COMPLEMENTS
SEC. 40(C)(1) AND PROVIDES THAT, UPON A PROPER SHOWING BY THE BANKRUPT,
THE FEES MAY BE PAID IN INSTALLMENTS WITHIN A SIX-MONTH PERIOD, WHICH
MAY BE EXTENDED NOT TO EXCEED THREE MONTHS.  /3/

     II 

ROBERT WILLIAM KRAS PRESENTED HIS VOLUNTARY PETITION IN BANKRUPTCY
TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW
YORK ON MAY 28, 1971.  THE PETITION WAS ACCOMPANIED BY KRAS' MOTION FOR
LEAVE TO FILE AND PROCEED IN BANKRUPTCY WITHOUT PAYMENT OF ANY OF THE
FILING FEES AS A CONDITION PRECEDENT TO DISCHARGE.  THE MOTION WAS
SUPPORTED BY KRAS'  AFFIDAVIT CONTAINING THE FOLLOWING ALLEGATIONS THAT
HAVE NOT BEEN CONTROVERTED BY THE GOVERNMENT: 

1.  KRAS RESIDES IN A 2 1/2 ROOM APARTMENT WITH HIS WIFE, TWO
CHILDREN, AGES 5 YEARS AND 8 MONTHS, HIS MOTHER, AND HIS MOTHERS'  6
YEAR -OLD DAUGHTER.  HIS YOUNGER CHILD SUFFERS FROM CYSTIC FIBROSIS AND
IS UNDERGOING TREATMENT IN A MEDICAL CENTER. 

2.  KRAS HAS BEEN UNEMPLOYED SINCE MAY 1969 EXCEPT FOR ODD JOBS
PRODUCING ABOUT $300 IN 1969 AND A LIKE AMOUNT IN 1970.  HIS LAST
STEADY JOB WAS AS AN INSURANCE AGENT WITH METROPOLITAN LIFE INSURANCE
COMPANY.  HE WAS DISCHARGED BY METROPOLITAN IN 1969 WHEN PREMIUMS HE
HAD COLLECTED WERE STOLEN FROM HIS HOME AND HE WAS UNABLE TO MAKE UP
THE AMOUNT TO HIS EMPLOYER.  METROPOLITAN'S CLAIM AGAINST HIM HAS
INCREASED TO OVER $1,000 ANDIS ONE OF THE DEBTS LISTED IN HIS
BANKRUPTCY PETITION.  HE HAS DILIGENTLY SOUGHT STEADY EMPLOYMENT IN NEW
YORK CITY, BUT, BECAUSE OF UNFAVORABLE REFERENCES FROM METROPOLITAN, HE
HAS BEEN UNSUCCESSFUL.  MRS. KRAS WAS EMPLOYED UNTIL MARCH 1970, WHEN
SHE WAS FORCED TO STOP BECAUSE OF PREGNANCY.  ALL HER ATTENTION NOW
WILL BE DEVOTED TO CARING FOR THE YOUNGER CHILD WHO IS COMING OUT OF
THE HOSPITAL SOON. 

3.  THE KRAS HOUSEHOLD SUBSISTS ENTIRELY ON $210 PER MONTH PUBLIC
ASSISTANCE RECEIVED FOR KRAS' OWN FAMILY AND $156 PER MONTH PUBLIC
ASSISTANCE RECEIVED FOR HIS MOTHER AND HER DAUGHTER.  THESE BENEFITS
ARE ALL EXPENDED FOR RENT AND DAY-TO-DAY NECESSITIES.  THE RENT IS $102
PER MONTH.  KRAS OWNS NO AUTOMOBILE AND NO ASSET THAT IS NON-EXEMPT
UNDER THE BANKRUPTCY LAW.  HE RECEIVES NO UNEMPLOYMENT OR DISABILITY
BENEFIT.  HIS SOLE ASSETS ARE WEARING APPAREL AND $50 WORTH OF
ESSENTIAL HOUSEHOLD GOODS THAT ARE EXEMPT UNDER SEC. 6 OF THE ACT, 11
U.S.C. 24, AND UNDER NEW YORK CIVIL PRACTICE LAWS AND RULES SEC. 5205
(1963).  HE HAS A COUCH OF NEGLIGIBLE VALUE IN STORAGE ON WHICH A $6
PAYMENT IS DUE MONTHLY. 

4.  BECAUSE OF HIS POVERTY, KRAS IS WHOLLY UNABLE TO PAY OR PROMISE
TO PAY THE BANKRUPTCY FEES, EVEN IN SMALL INSTALLMENTS.  HE HAS BEEN
UNABLE TO BORROW MONEY.  THE NEW YORK CITY DEPARTMENT OF SOCIAL
SERVICES REFUSES TO ALLOT MONEY FOR PAYMENT OF THE FEES.  HE HAS NO
PROSPECT OF IMMEDIATE EMPLOYMENT. 

5.  KRAS SEEKS A DISCHARGE IN BANKRUPTCY OF $6,428.69 IN TOTAL
INDEBTEDNESS IN ORDER TO RELIEVE HIMSELF AND HIS FAMILY OF THE DISTRESS
OF FINANCIAL INSOLVENCY AND CREDITOR HARASSMENT AND IN ORDER TO MAKE A
NEW START IN LIFE.  IT IS ESPECIALLY IMPORTANT THAT HE OBTAIN A
DISCHARGE OF HIS DEBT TO METROPOLITAN SOON "BECAUSE UNTIL THAT IS
CLEARED UP METROPOLITAN WILL CONTINUE TO FALSELY CHARGE ME WITH FRAUD
AND GIVE ME BAD REFERENCES WHICH PREVENT MY GETTING EMPLOYMENT." 

THE DISTRICT COURT'S OPINION CONTAINS AN ORDER, 331 F.SUPP., AT
1215, GRANTING KRAS' MOTION FOR LEAVE TO FILE HIS PETITION IN
BANKRUPTCY WITHOUT PREPAYMENT OF FEES.  HE WAS ADJUDGED A BANKRUPT ON
SEPTEMBER 13, 1972.  LATER, THE REFEREE, UPON CONSENT OF THE PARTIES,
ENTERED AN ORDER ALLOWING KRAS TO CONDUCT ALL NECESSARY PROCEEDINGS IN
BANKRUPTCY UP TO BUT NOT INCLUDING DISCHARGE.  THE REFEREE STAYED THE
DISCHARGE PENDING DISPOSITION OF THIS APPEAL. 

        III 

IN THE DISTRICT COURT KRAS FIRST PRESENTED A STATUTORY ARGUMENT--
AND, ALTERNATIVELY, ONE BASED IN COMMON LAW-- THAT HE WAS ENTITLED TO
RELIEF FROM PAYMENT OF THE BANKRUPTCY CHARGES BECAUSE OF THE PROVISIONS
OF 28 U.S.C. 1915(A).  /4/  THIS IS THE IN FORMA PRUPERIS STATUTE THAT
HAS ITS ORIGIN IN THE ACT OF JULY 20, 1892, C. 209, 27 STAT. 252.  SEE
ALSO 28 U.S.C. 832-836 (1940 ED.). 

THE DISTRICT COURT REJECTED THE ARGUMETN DESPITE THE SEEMING FACIAL
APPLICATION OF SEC. 1915(A) TO A BANKRUPTCY PROCEEDING AS WELL AS TO
ANY OTHER.  IT REACHED THIS RESULT BY NOTING THAT SEC. 51(2) OF THE
BANKRUPTCY ACT, AS ORIGINALLY ADOPTED IN 1898, 30 STAT. 558, HAD
PROVIDED FOR A WAIVER OF FEES UPON THE FILING OF AN AFFIDAVIT OF
INABILITY TO PAY; THAT BY THE PASSAGE OF THE REFEREES' SALARY BILL IN
1946, 60 STAT. 326, BANKRUPTCY PETITIONS IN FORMA PAUPERIS WERE
ABOLISHED, H.R. REP. NO. 1037, 79TH CONG., 1ST SESS., 6 (1945); S. REP.
NO. 959, 79TH CONG., 2D SESS., 7 (1946); AND THAT THE 1946 STATUTE,
BEING LATER AND HAVING A POSITIVE AND SPECIFIC PROVISION FOR
POSTPONEMENT OF FEES IN CASES OF INDIGENCY, OVERRODE THE EARLIER
GENERAL PROVISIONS OF SEC. 1915(A).  331 F.SUPP., AT 1209-1210.  TO THE
SAME EFFECT ARE IN RE GARLAND, 428 F.2D, AT 1186-1187, AND IN RE SMITH,
323 F.SUPP.  1082, 1084-1085 (COLO. 1971), THE REASONING OF WHICH THE
DISTRICT COURT ADOPTED.  SO ALSO IS IN RE SMITH, 341 F.SUPP.  1297,
1298 (ND ILL. 1972). 

THE APPELLEE MAY WELL HAVE ABANDONED THE ARGUMENT ON THIS APPEAL. 
TR. OF ORAL ARG. 44-45.  IN ANY EVENT, WE AGREE FOR THE REASONS STATED
BY THE DISTRICT COURT AND BY THE COURTS IN GARLAND AND IN THE TWO SMITH
CASES, SUPRA, THAT SEC. 1915(A) IS NOT NOW AVAILABLE IN BANKRUPTCY. 
SEE 2 W. COLLIER, BANKRUPTCY PARA. 51.01, PP. 1873-1874 (14TH ED.
1971).  NEITHER DO WE PERCEIVE ANY COMMON-LAW RIGHT TO PROCEED WITHOUT
PAYMENT OF FEES.  CONGRESS, OF COURSE, SOMETIME MIGHT CONCLUDE THAT
SEC. 1915(A) SHOULD BE MADE APPLICABLE TO BANKRUPTCY AND LEGISLATE
ACCORDINGLY. 

THE DISTRICT COURT WENT ON TO HOLD, HOWEVER, 331 F.SUPP., AT 1210
1215, THAT THE PRESCRIBED FEES, PAYMENT OF WHICH WAS REQUIRED AS A
CONDITION PRECEDENT TO DISCHARGE, SERVED TO DENY KRAS "HIS FIFTH
AMENDMENT RIGHT OF DUE PROCESS, INCLUDING EQUAL PROTECTION."  ID., AT
1212.  IT HELD THAT A DISCHARGE IN BANKRUPTCY WAS A "FUNDAMENTAL
INTEREST" THAT COULD BE DENIED ONLY WHEN A "COMPELLING GOVERNMENT
INTEREST" WAS DEMONSTRATED.  IT NOTED, ID., AT 1213, THAT PROVISION
SHOULD BE MADE BY THE REFEREE FOR THE SURVIVAL, BEYOND BANKRUPTCY, OF
THE BANKRUPT'S OBLIGATION TO PAY THE FEES.  THE COURT RESTED ITS
DECISION PRIMARILY UPON BODDIE V. CONNECTICUT, 401 U.S. 371 (1971),
WHICH CAME DOWN AFTER THE FIRST CIRCUIT'S DECISION IN GARLAND, SUPRA.
A NUMBER OF OTHER DISTRICT COURTS AND BANKRUPTCY REFEREES HAVE REACHED
THE SAME RESULT.  /5/ 

KRAS CONTENDS THAT HIS CASE FALLS SQUARELY WITHIN BODDIE.  THE
GOVERNMENT, ON THE OTHER HAND, STRESSES THE DIFFERENCES BETWEEN DIVORCE
(WITH WHICH BODDIE WAS CONCERNED) AND BANKRUPTCY, AND CLAIMS THAT
BODDIE IS NOT CONTROLLING AND THAT THE FEE REQUIREMENTS CONSTITUTE A
REASONABLE EXERCISE OF CONGRESS' PLENARY POWER OVER BANKRUPTCY. 

        IV 

BODDIE WAS A CHALLENGE BY WELFARE RECIPIENTS TO CERTAIN CONNECTICUT
PROCEDURES, INCLUDING THE PAYMENT OF COURT FEES AND COSTS, THAT
ALLEGEDLY RESTRICTED THEIR ACCESS TO THE COURTS FOR DIVORCE.  THE
PLAINTIFFS, SIMPLY BY REASON OF THEIR INDIGENCY, WERE UNABLE TO BRING
THEIR ACTIONS.  THE COURT REVERSED A DISTRICT COURT JUDGMENT THAT A
STATE COULD LIMIT ACCESS TO ITS COURTS BY FEES "WHICH EFFECTIVELY BAR
PERSONS ON RELIEF FROM COMMENCING ACTIONS THEREIN."  286 F.SUPP.  968,
972.  MR. JUSTICE HARLAN, WRITING FOR THE COURT, STRESSED STATE
MONOPOLIZATION OF THE MEANS FOR LEGALLY DISSOLVING MARRIAGE AND
IDENTIFIED THE WOULD-BE INDIGENT DIVORCE PLAINTIFF WITH ANY OTHER
ACTION'S IMPOVERISHED DEFENDANT FORCED INTO COURT BY THE INSTITUTION OF
A LAWSUIT AGAINST HIM.  HE DECLARED THAT "A MEANINGFUL OPPORTUNITY TO
BE HEARD" WAS FIRMLY IMBEDDED IN OUR DUE PROCESS JURISPRUDENCE, 401
U.S., AT 377, AND THAT THIS WAS TO BE PROTECTED AGAINST DENIAL BY LAWS
THAT OPERATE TO JEOPARDIZE IT FOR PARTICULAR INDIVIDUALS, ID., AT 379
380.  THE COURT THEN CONCLUDED THAT CONNECTICUT'S REFUSAL TO ADMIT
THESE GOOD-FAITH DIVORCE PLAINTIFFS TO ITS COURTS EQUATED WITH THE
DENIAL OF AN OPPORTUNITY TO BE HEARD AND, IN THE ABSENCE OF A
SUFFICIENT COUNTERVAILING JUSTIFICATION FOR THE STATE'S ACTION, A
DENIAL OF DUE PROCESS, ID., AT 380-381. 

BUT THE COURT EMPHASIZED THAT "WE GO NO FURTHER THAN NECESSARY TO
DISPOSE OF THE CASE BEFORE US."  ID., AT 382. 

     "WE DO NOT DECIDE THAT ACCESS FOR ALL INDIVIDUALS TO THE
COURTS

  IS A RIGHT THAT IS, IN ALL CIRCUMSTANCES, GUARANTEED BY THE DUE

  PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT SO THAT ITS EXERCISE

  MAY NOT BE PLACED BEYOND THE REACH OF ANY INDIVIDUAL, FOR, AS WE

  HAVE ALREADY NOTED, IN THE CASE BEFORE US THIS RIGHT IS THE

  EXCLUSIVE PRECONDITION TO THE ADJUSTMENT OF A FUNDAMENTAL HUMAN

  RELATIONSHIP.  THE REQUIREMENT THAT THESE APPELLANTS RESORT TO

  THE JUDICIAL PROCESS IS ENTIRELY A STATE-CREATED MATTER.  THUS WE

  HOLD ONLY THAT A STATE MAY NOT, CONSISTENT WITH THE OBLIGATIONS

  IMPOSED ON IT BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH

  AMENDMENT, PRE-EMPT THE RIGHT TO DISSOLVE THIS LEGAL RELATIONSHIP

  WITHOUT AFFORDING ALL CITIZENS ACCESS TO THE MEANS IT HAS

  PRESCRIBED FOR DOING SO."  ID., AT 382-383. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE RESULT, RESTED HIS CONCLUSION
ON EQUAL PROTECTION RATHER THAN DUE PROCESS.  "I DO NOT SEE THE LENGTH
OF THE ROAD WE MUST FOLLOW IF WE ACCEPT MY BROTHER HARLAN'S
INVITATION."  ID., AT 383, 385.  MR. JUSTICE BRENNAN CONCURRED IN PART,
FOR HE DISCERNED NO DISTINCTION BETWEEN DIVORCE AND "ANY OTHER RIGHT
ARISING UNDER FEDERAL OR STATE LAW" AND HE, ALSO, FOUND A DENIAL OF
EQUAL PROTECTION.  ID., AT 386, 387.  MR. JUSTICE BLACK DISSENTED, ID.,
AT 389, FEELING THAT THE CONNECTICUT COURT COSTS WERE BARRED BY NEITHER
THE DUE PROCESS CLAUSE NOR THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT. 

JUST TWO MONTHS AFTER BODDIE WAS DECIDED, THE COURT DENIED
CERTIORARI IN GARLAND.  402 U.S. 966.  MR. JUSTICE BRENNAN WAS OF THE
OPINION THAT CERTIORARI SHOULD HAVE BEEN GRANTED.  MR. JUSTICE BLACK,
IN AN OPINION APPLICABLE TO GARLAND AND TO SEVEN OTHER THEN-PENDING
CASES, 402 U.S. 954, DISSENTED AND WOULD HAVE HEARD ARGUMENT IN ALL
EIGHT CASES "OR REVERSE THEM OUTRIGHT ON THE BASIS OF THE DECISION IN
BODDIE."  ID., AT 955.  FOR HIM "THE NEED . . . TO FILE FOR A DISCHARGE
IN BANKRUPTCY SEEMED) . . . MORE 'FUNDAMENTAL' THAN A PERSON'S RIGHT TO
SEEK A DIVORCE."  ID., AT 958.  AND MR. JUSTICE DOUGLAS SIMILARLY
DISSENTED FROM THE DENIAL OF CERTIORARI IN GARLAND AND IN FOUR OTHER
CASES BECAUSE "OBTAINING A FRESH START IN LIFE THROUGH BANKRUPTCY
PROCEEDINGS.  . . SEEMINGLY COMES) WITHIN THE EQUAL PROTECTION
CLAUSE."  402 U.S. 960, 961.     THUS, ALTHOUGH A DENIAL OF CERTIORARI
NORMALLY CARRIES NO IMPLICATION OR INFERENCE, CHESSMAN V. TEETS, 354
U.S. 156, 164 N. 13 (1957); BROWN V. ALLEN, 344 U.S. 443 (1953), THE
POINTED DISSENTS OF MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS TO THE
DENIAL IN GARLAND SO SOON AFTER BODDIE, AND MR. JUSTICE HARLAN'S
FAILURE TO JOIN THE DISSENTERS, SURELY ARE NOT WITHOUT SOME
SIGNIFICANCE AS TO THEIR AND THE COURT'S ATTITUDE ABOUT THE APPLICATION
OF THE BODDIE PRINCIPLE TO BANKRUPTCY FEES. 

        V 

WE AGREE WITH THE GOVERNMENT THAT OUR DECISION IN BODDIE DOES NOT
CONTROL THE DISPOSITION OF THIS CASE AND THAT THE DISTRICT COURT'S
RELIANCE UPON BODDIE IS MISPLACED. 

A. BODDIE WAS BASED ON THE NOTION THAT A STATE CANNOT DENY ACCESS,
SIMPLY BECAUSE OF ONE'S PROPERTY, TO A "JUDICIAL PROCEEDING (THAT IS)
THE ONLY EFFECTIVE MEANS OF RESOLVING THE DISPUTE AT HAND."  401 U.S.,
AT 376.  THROUGHOUT THE OPINION THERE IS CONSTANT AND RECURRING
REFERENCE TO CONNECTICUT'S EXCLUSIVE CONTROL OVER THE ESTABLISHEMENT,
ENFORCEMENT, AND DISSOLUTION OF THE MARITAL RELATIONSHIP.  THE COURT
EMPHASIZED THAT "MARRIAGE INVOLVES INTERESTS OF BASIC IMPORTANCE IN OUR
SOCIETY," IBID., AND SPOKE OF "STATE MONOPOLIZATION OF THE MEANS FOR
LEGALLY DISSOLVING THIS RELATIONSHIP," ID., AT 374.  "(RESORT TO THE
STATE COURTS (WAS) THE ONLY AVENUE TO DISSOLUTION OF . . . MARRIAGES,"
ID., AT 376, WHICH WAS "NOT ONLY THE PARAMOUNT DISPUTE-SETTLEMENT
TECHNIQUE, BUT, IN FACT, THE ONLY AVAILABLE ONE,"  ID., AT 377.  THE
COURT ACKNOWLEDGED THAT IT KNEW "OF NO INSTANCE WHERE TWO CONSENTING
ADULTS MAY DIVORCE AND MUTUALLY LIBERATE THEMSELVES FROM THE
CONSTRAINTS OF LEGAL OBLIGATIONS THAT GO WITH MARRIAGE, AND MORE
FUNDAMENTALLY THE PROHIBITION AGAINST REMARRIAGE, WITHOUT INVOKING THE
STATE'S JUDICIAL MACHINERY," ID., AT 376.  IN THE LIGHT OF ALL THIS, WE
CONCLUDED THAT RESORT TO THE JUDICIAL PROCESS WAS "NO MORE VOLUNTARY IN
A REALISTIC SENSE THAN THAT OF THE DEFENDANT CALLED UPON TO DEFEND HIS
INTERESTS IN COURT" AND WE RESOLVED THE CASE "IN LIGHT OF THE
PRINCIPLES ENUNCIATED IN OUR PROCESS DECISIONS THAT DELIMIT RIGHTS OF
DEFENDANTS COMPELLED TO LITIGATE THEIR DIFFERENCES IN THE JUDICIAL
FORUM," ID., AT 376-377. 

B. THE APPELLANTS IN BODDIE, ON THE ONE HAND, AND ROBERT KRAS, ON
THE OTHER, STAND IN MATERIALLY DIFFERENT POSTURES.  THE DENIAL OF
ACCESS TO THE JUDICIAL FORUM IN BODDIE TOUCHED DIRECTLY, AS HAS BEEN
NOTED, ON THE MARITAL RELATIONSHIP AND ON THE ASSOCIATED INTERESTS THAT
SURROUND THE ESTABLISHMENT AND DISSOLUTION OF THAT RELATIONSHIP.  ON
MANY OCCASIONS WE HAVE RECOGNIZED THE FUNDAMENTAL IMPORTANCE OF THESE
INTERESTS UNDER OUR CONSTITUTION.  SEE, FOR EXAMPLE, LOVING V.
VIRGINIA, 388 U.S. 1 (1967); SKINNER V. OKLAHOMA, 316 U.S. 535 (1942);
GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965); EISENSTADT V. BAIRD, 405
U.S. 438 (1972); MEYER V. NEBRASKA, 262 U.S. 390 (1923).  THE BODDIE
APPELLANTS' INABILITY TO DISSOLVE THEIR MARRIAGES SERIOUDLY IMPAIRED
THEIR FREEDOM TO PURSUE OTHER PROTECTED ASSOCIATIONAL ACTIVITIES. 
KRAS' ALLEGED INTEREST IN ELIMINATION OF HIS DEBT BURDEN, AND IN
OBTAINING HIS DESIRED NEW START IN LIFE, ALTHOUGH IMPORTANT AND SO
RECOGNIZED BY THE ENACTMENT OF THE BANKRUPTCY ACT, DOES NOT RISE TO THE
SAME CONSTITUTIONAL LEVEL.  SEE DANDRIDGE V. WILLIAMS, 397 U.S. 471
(1970); RICHARDSON V. BELCHER, 404 U.S. 78 (1971).  IF KRAS IS NOT
DISCHARGED IN BANKRUPTCY, HIS POSITION WILL NOT BE MATERIALLY ALTERED
IN ANY CONSTITUTIONAL SENSE.  GAINING OR NOT GAINING A DISCHARGE WILL
EFFECT NO CHANGE WITH RESPECT TO BASIC NECESSITIES.  /6/  WE SEE NO
FUNDAMENTAL INTEREST THAT IS GAINED OR LOST DEPENDING ON THE
AVAILABILITY OF A DISCHARGE IN BANKRUPTCY. 

C. NOR IS THE GOVERNMENT'S CONTROL OVER THE ESTABLISHMENT,
ENFORCEMENT, OR DISSOLUTION OF DEBTS NEARLY SO EXCLUSIVE AS
CONNECTICUT'S CONTROL OVER THE MARRIAGE RELATIONSHIP IN BODDIE.  IN
CONTRAST WITH DIVORCE, BANKRUPTCY IS NOT THE ONLY METHOD AVAILABLE TO A
DEBTOR FOR THE ADJUSTMENT OF HIS LEGAL RELATIONSHIP WITH HIS
CREDITORS.  THE UTTER EXCLUSIVENESS OF COURT ACCESS AND COURT REMEDY,
AS HAS BEEN NOTED, WAS A POTENT FACTOR IN BODDIE.  BUT "(WITHOUT A
PRIOR JUDICIAL IMPRIMATUR, INDIVIDUALS MAY FREELY ENTER INTO AND
RESCIND COMMERCIAL CONTRACTS.  . . . "  401 U.S., AT 376. 

HOWEVER UNREALISTIC THE REMEDY MAY BE IN A PARTICULAR SITUATION, A
DEBTOR, IN THEORY, AND OFTEN IN ACTUALITY, MAY ADJUST HIS DEBTS BY
NEGOTIATED AGREEMENT WITH HIS CREDITORS.  AT TIMES THE HAPPY PASSAGE OF
THE APPLICABLE LIMITATION PERIOD, OR OTHER ACCEPTABLE CREDITOR
ARRANGEMENT, WILL PROVIDE THE ANSWER.  GOVERNMENT'S ROLE WITH RESPECT
TO THE PRIVATE COMMERCIAL RELATIONSHIP IS QUALITATIVELY AND
QUANTITATIVELY DIFFERENT FROM ITS ROLE IN THE ESTABLISHMENT,
ENFORCEMENT, AND DISSOLUTION OF MARRIAGE. 

RESORT TO THE COURT, THEREFORE, IS NOT KRAS' SOLE PATH TO RELIEF. 
BODDIE'S EMPHASIS ON EXCLUSIVITY FINDS NO COUNTERPART IN THE BANKRUPT'S
SITUTATION.  SEE COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S.
541, 547-555 (1949). 

D. WE ARE ALSO OF THE OPINION THAT THE FILING FEE REQUIREMENT DOES
NOT DENY KRAS THE EQUAL PROTECTION OF THE LAWS.  BANKRUPTCY IS HARDLY
AKIN TO FREE SPEECH OR MARRIAGE OR TO THOSE OTHER RIGHTS, SO MANY OF
WHICH ARE IMBEDDED IN THE FIRST AMENDMENT, THAT THE COURT HAS COME TO
REGARD AS FUNDAMENTAL AND THAT DEMAND THE LOFTY REQUIREMENT OF A
COMPELLING GOVERNMENTAL INTEREST BEFORE THEY MAY BE SIGNIFICANTLY
REGULATED.  SEE SHAPIRO V. THOMPSON, 394 U.S. 618, 638 (1969).  NEITHER
DOES IT TOUCH UPON WHAT HAVE BEEN SAID TO BE THE SUSPECT CRITERIA OF
RACE, NATIONALITY, OR ALIENAGE.  GRAHAM V. RICHARDSON, 403 U.S. 365,
375 (1971).  INSTEAD, BANKRUPTCY LEGISLATION IS IN THE AREA OF
ECONOMICS AND SOCIAL WELFARE.  SEE DANDRIDGE V. WILLIAMS, 397 U.S., AT
484-485; RICHARDSON V. BELCHER, 404 U.S., AT 81; LINDSEY V. NORMET, 405
U.S. 56, 74 (1972); JEFFERSON V. HACKNEY, 406 U.S. 535, 546 (1972). 
THIS BEING SO, THE APPLICABLE STANDARD, IN MEASURING THE PROPRIETY OF
CONGRESS' CLASSIFICATION, IS THAT OF RATIONAL JUSTIFICATION.  FLEMMING
V. NESTOR, 363 U.S. 603, 611-612 (1960); DANDRIDGE V. WILLIAMS, 397
U.S., AT 485-486; RICHARDSON V. BELCHER, 404 U.S., AT 81. 

E. THERE IS NO CONSTITUTIONAL RIGHT TO OBTAIN A DISCHARGE OF ONE'S
DEBTS IN BANKRUPTCY.  THE CONSTITUTION, ART. I, SEC. 8, CL. 4, MERELY
AUTHORIZES THE CONGRESS TO "ESTABLISH . . . UNIFORM LAWS ON THE SUBJECT
OF BANKRUPTCIES THROUGHOUT THE UNITED STATES."  ALTHOUGH THE FIRST
BANKRUPTCY LAW IN ENGLAND WAS ENACTED IN 1542, 34 & 35 HEN.  8, C. 4,
AND A DISCHARGE PROVISION FIRST APPEARED IN 1705, 4 ANNE, C. 17,
PRIMARILY AS A REWARD FOR COOPERATING DEBTORS, J. MACLACHLAN,
BANKRUPTCY 20-21 (1956), VOLUNTARY BANKRUPTCY WAS NOT KNOWN IN THIS
COUNTRY AT THE ADOPTION OF THE CONSTITUTION.  INDEED, FOR THE ENTIRE
PERIOD PRIOR TO THE PRESENT ACT OF 1898, THE NATION WAS WITHOUT A
FEDERAL BANKRUPTCY LAW EXCEPT FOR THREE SHORT PERIODS AGGREGATING ABOUT
15 1/2 YEARS.  THE FIRST STATUTE WAS THE ACT OF APRIL 4, 1800, C. 19, 2
STAT. 19, AND IT WAS REPEALED BY THE ACT OF DECEMBER 19, 1803, C. 6, 2
STAT. 248.  THE SECOND WAS THE ACT OF AUGUST 19, 1841, C. 9, 5 STAT.
440, REPEALED LESS THAN TWO YEARS LATER BY THE ACT OF MARCH 3, 1843, C.
82, 5 STAT. 614.  THE THIRD WAS THE ACT OF MARCH 2, 1867, C. 176, 14
STAT. 517; IT WAS REPEALED BY THE ACT OF JUNE 7, 1878, C. 160, 20 STAT.
99.  VOLUNTARY PETITIONS WERE PERMITTED UNDER THE 1841 AND 1867 ACTS. 
SEE 1 W. COLLIER, BANKRUPTCY PARAS. 0.03-0.05, PP. 6-9 (14TH ED.
1971).  PROFESSOR MACLACHLAN HAS SAID THAT THE DEVELOPMENT OF THE
DISCHARGE "REPRESENTS AN INDEPENDENT . . . PUBLIC POLICY IN FAVOR OF
EXTRICATING AN INSOLVENT DEBTOR FROM WHAT WOULD OTHERWISE BE A
FINANCIAL IMPASSE."  J. MACLACHLAN, BANKRUPTCY 88 (FOOTNOTE OMITTED). 
BUT THIS OBVIOUSLY IS A LEGISLATIVELY CREATED BENEFIT, NOT A
CONSTITUTIONAL ONE, AND, AS NOTED, IT WAS A BENEFIT WITHHELD, SAVE FOR
THREE SHORT PERIODS, DURING THE FIRST 100 YEARS OF THE NATION'S LIFE. 
THE MERE FACT THAT CONGRESS HAS DELEGATED TO THE DISTRICT COURT
SUPERVISION OVER THE PROCEEDINGS BY WHICH A PETITION FOR DISCHARGE IS
PROCESSED DOES NOT CONVERT A STATUTORY BENEFIT INTO A CONSTITUTIONAL
RIGHT OF ACCESS TO A COURT.  THEN, TOO, CONGRESS MIGHT HAVE DELAGATED
THE RESPONSIBILITY TO AN ADMINISTRATIVE AGENCY. 

F. THE RATIONAL BASIS FOR THE FEE REQUIREMENT IS READILY APPARENT. 
CONGRESSIONAL POWER OVER BANKRUPTCY, OF COURSE, IS PLENARY AND
EXCLUSIVE.  KALB V. FEUERSTEIN, 308 U.S. 433, 438-439 (1940).  BY THE
1946 AMENDMENT, 60 STAT. 326, CONGRESS, AS HAS BEEN NOTED, ABOLISHED
THE THERETOFORE EXISTING PRACTICES OF THE PAUPER PETITION AND OF
COMPENSATING THE REFEREE FROM THE FEES HE COLLECTED.  IT REPLACED THAT
SYSTEM WITH ONE FOR SALARIED REFEREES AND FOR FIXED FEES FOR EVERY
PETITION FILED AND A SPECIFIED PERCENTAGE OF DISTRIBUTABLE ASSETS.  IT
SOUGHT TO MAKE THE SYSTEM SELF-SUSTAINING AND PAID FOR BY THOSE WHO USE
IT RATHER THAN BY TAX REVENUES DRAWN FROM THE PUBLIC AT LARGE.  H.R.
REP. NO. 1037, 79TH CONG., 1ST SESS., 4-6 (1945); S. REP. NO. 959, 79TH
CONG., 2D SESS. 2, 5-6 (1946).  /7/  THE PROPRIETY OF THE REQUIREMENT
THAT THE FEES BE PAID ULTIMATELY HAS BEEN RECOGNIZED EVEN BY THOSE
DISTRICT COURTS THAT HAVE HELD THE PAYMENT OF THE FEE AS A PRECONDITION
TO A DISCHARGE TO BE UNCONSTITUTIONAL, FOR THOSE COURTS WOULD MAKE THE
PAYMENTS SURVIVE THE BANKRUPTCY AS A CONTINUING OBLIGATION OF THE
BANKRUPT.  IN RE SMITH, 323 F.SUPP., AT 1092; IN RE OTTMAN, 336
F.SUPP.  746, 748 (ED WIS. 1972).  SEE O'BRIEN V. TREVETHAN, 336
F.SUPP.  1029, 1034 (CONN. 1972). 

FURTHER, THE REASONABLENESS OF THE STRUCTURE CONGRESS PRODUCED, AND
CONGRESSIONAL CONCERN FOR THE DEBTOR, ARE APPARENT FROM THE PROVISIONS
PERMITTING THE DEBTOR TO FILE HIS PETITION WITHOUT PAYMENT OF ANY FEE,
WITH CONSEQUENT FREEDOM OF SUBSEQUENT EARNINGS AND OF AFTER-ACQUIRED
ASSETS (WITH THE RARE EXCEPTION SPECIFIED IN SEC. 70(A) OF THE ACT, 11
U.S.C. 110(A)) FROM THE CLAIMS OF THEN-EXISTING OBLIGATIONS.  THESE
PROVISIONS, COUPLED WITH THE BANKRUPT'S ABILITY TO OBTAIN A STAY OF ALL
DEBT ENFORCEMENT ACTIONS PENDING AT THE FILING OF THE PETITION OR
THEREAFTER COMMENCED, SECS. 11(A) AND 2(A)(15), 11 U.S.C. 29(A) AND
11(A)(15); 1A W. COLLIER, BANKRUPTCY PARA. 11.03 (14TH ED. 1972); 1
ID., PARA. 2.62(4) (14TH ED. 1971), ENABLE A BANKRUPT TO TERMINATE HIS
HARASSMENT BY CREDITORS, TO PROTECT HIS FUTURE EARNINGS AND PROPERTY,
AND TO HAVE HIS NEW START WITH A MINIMUM OF EFFORT AND FINANCIAL
OBLIGATION.  THEY SERVE ALSO, AS AN INCIDENTAL EFFECT, TO PROMOTE AND
NOT TO DEFEAT THE PURPOSE OF MAKING THE BANKRUPTCY SYSTEM FINANCIALLY
SELF-SUFFICIENT.  CF. LINDSEY V. NORMET, 405 U.S., AT 74-79. 

G. IF THE $50 FILING FEES ARE PAID IN INSTALLMENTS OVER SIX MONTHS
AS GENERAL ORDER NO. 35(4) PERMITS ON A PROPER SHOWING, THE REQUIRED
AVERAGE WEEKLY PAYMENT IS $1.92.  IF THE PAYMENT PERIOD IS EXTENDED FOR
THE ADDITIONAL THREE MONTHS AS THE ORDER PERMITS, THE AVERAGE WEEKLY
PAYMENT IS LOWERED TO $1.28.  /8/  THIS IS A SUM LESS THAN THE PAYMENTS
KRAS MAKES ON HIS COUCH OF NEGLIGIBLE VALUE IN STORAGE, AND LESS THAN
THE PRICE OF A MOVIE AND LITTLE MORE THAN THE COST OF A PACK OR TWO OF
CIGARETTES.  IF, AS KRAS ALLEGES IN HIS AFFIDAVIT, A DISCHARGE IN
BANKRUPTCY WILL AFFORD HIM THAT NEW START HE SO DESIRES, AND THE
METROPOLITAN THEN NO LONGER WILL CHARGE HIM WITH FRAUD AND GIVE HIM BAD
REFERENCES, /9/  AND IF HE REALLY NEEDS AND DESIRES THAT DISCHARGE,
THIS MUCH AVAILABLE REVENUE SHOULD BE WITHIN HIS ABLE-BODIED REACH WHEN
THE ADJUDICATION IN BANKRUPTCY HAS STAYED COLLECTION AND HAS BROUGHT TO
A HALT WHATEVER HARASSMENT, IF ANY, HE MAY HAVE SUSTAINED FROM
CREDITORS. 

     IV 

MR. JUSTICE HARLAN, IN HIS OPINION FOR THE COURT IN BODDIE,
METICULOUSLY POINTED OUT, AS WE HAVE NOTED ABOVE, THAT THE COURT WENT
"NO FURTHER THAN NECESSARY TO DISPOSE OF THE CASE BEFORE US" AND DID
NOT "DECIDE THAT ACCESS FOR ALL INDIVIDUALS TO THE COURTS IS A RIGHT
THAT IS, IN ALL CIRCUMSTANCES, GUARANTEED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT SO THAT ITS EXERCISE MAY NOT BE PLACED BEYOND
THE REACH OF ANY INDIVIDUAL."  401 U.S., AT 382-383.  THE COURT
OBVIOUSLY STOPPED SHORT OF AN UNLIMITED RULE THAT AN INDIGENT AT ALL
TIMES AND IN ALL CASES HAS THE RIGHT TO RELIEF WITHOUT THE PAYMENT OF
FEES. 

WE DECLINE TO EXTEND THE PRINCIPLE OF BODDIE TO THE NO-ASSET
BANKRUPTCY PROCEEDING.  THAT RELIEF, IF IT IS TO BE FORTHCOMING, SHOULD
ORIGINATE WITH CONGRESS.  SEE SHAEFFER, PROCEEDINGS IN BANKRUPTCY IN
FORMA PAUPERIS, 69 COL.L.REV.  1203 (1969). 

              REVERSED. 

/1/  ADDITIONAL COMPENSATION TO THE TRUSTEE IN AN APPROPRIATE CASE
IS ALLOWABLE UNDER SEC. 48(C), 11 U.S.C. 76(C), BUT THESE PROVISIONS
HAVE NO APPLICATION FOR A NO-ASSET OR FULLY EXEMPT ESTATE. 

/2/  GENERAL ORDER IN BANKRUPTCY NO. 15, 305 U.S. 687 (1939), 11
U.S.C.APP., P. 2203, PROVIDES THAT A TRUSTEE NEED NOT BE APPOINTED IN A
NO-ASSET CASE.  WHEN A TRUSTEE IS NOT APPOINTED, THE AGGREGATE FEES ARE
$40. 

/3/  "(4) THE PETITION IN A VOLUNTARY PROCEEDING UNDER CHAPTERS I TO
VII . . . OF THE ACT MAY BE ACCEPTED FOR FILING BY THE CLERK IF
ACCOMPANIED BY A VERIFIED PETITION OF THE BANKRUPT . . . STATING THAT
THE PETITIONER IS WITHOUT AND CANNOT OBTAIN THE MONEY WITH WHICH TO PAY
THE FILING FEES IN FULL AT THE TIME OF FILING.  SUCH PETITION SHALL
STATE THE FACTS SHOWING THE NECESSITY FOR THE PAYMENT OF THE FILING
FEES IN INSTALLMENTS AND SHALL SET FORTH THE TERMS UPON WHICH THE
PETITIONER PROPOSES TO PAY THE FILING FEES. 

"A.  AT THE FIRST MEETING OF CREDITORS OR ANY ADJOURNMENT THEREOF,
THE COURT . . . SHALL ENTER AN ORDER FIXING THE AMOUNT AND DATE OF
PAYMENT OF SUCH INSTALLMENTS.  THE FINAL INSTALLMENT SHALL BE PAYABLE
NOT MORE THAN SIX MONTHS AFTER THE DATE OF FILING OF THE ORIGINAL
PETITION; PROVIDED, HOWEVER, THAT FOR CAUSE SHOWN THE COURT MAY EXTEND
THE TIME OF PAYMENT OF ANY INSTALLMENT FOR A PERIOD OF NOT TO EXCEED
THREE MONTHS.     "B.  UPON THE FAILURE OF A BANKRUPT . . . TO PAY ANY
INSTALLMENT AS ORDERED, THE COURT MAY DISMISS THE PROCEEDING FOR
FAILURE TO PAY COSTS AS PROVIDED IN SECTION 59, SUB. G. OF THE ACT . .
. . 

"C.  NO PROCEEDINGS UPON THE DISCHARGE OF A BANKRUPT . . . SHALL BE
INSTITUTED UNTIL THE FILING FEES ARE PAID IN FULL."     /4/  "ANY COURT
OF THE UNITED STATES MAY AUTHORIZE THE COMMENCEMENT, PROSECUTION OR
DEFENSE OF ANY SUIT, ACTION OR PROCEEDING, CIVIL OR CRIMINAL, OR APPEAL
THEREIN, WITHOUT PREPAYMENT OF FEES AND COSTS OR SECURITY THEREFOR, BY
A PERSON WHO MAKES AFFIDAVIT THAT HE IS UNABLE TO PAY SUCH COSTS OR
GIVE SECURITY THEREFOR.  SUCH AFFIDAVIT SHALL STATE THE NATURE OF THE
ACTION, DEFENSE OR APPEAL AND AFFIANT'S BELIEF THAT HE IS ENTITLED TO
REDRESS." 

/5/  IN RE SMITH, 323 F.SUPP.  1082 (COLO. 1971) (DECIDED BEFORE
BODDIE); IN RE NARON, 334 F.SUPP.  1150 (ORE.  1971); IN RE OTTMAN, 336
F.SUPP.  746 (ED WIS. 1972); IN RE SMITH, 341 F.SUPP.  1297 (ND ILL.
1972); IN RE HADDOCK AND BEEMAN, NOS. 14810 AND 14811 (CONN. 1972); IN
RE PASSWATER, NOS. IP70-B-3697 AND IP70-B-3698 (SD IND. 1971); IN RE
RIPLEY, NO. BK. 71-0-1003 (NEB. 1972); IN RE READ, NO. BK 71-826 (WDNY
1971).  SEE O'BRIEN V. TREVETHAN, 336 F.SUPP.  1029 (CONN. 1972).  BUT
SEE IN RE PARTILLA, NO. 71-B-380 (SDNY 1971); IN RE MALEVICH, NO. BK 29
71 (NJ 1971). 

/6/  SEE N.Y. CIV. PRAC.  LAW SEC. 5205 (1963); N.Y. LABOR LAW SEC.
595 (1965); N.Y. SOC. WELFARE LAW SEC. 137 (1966), AND SEC. 137-A
(SUPP. 1972-1973). 

/7/  FOR THE DECADE ENDED JUNE 30, 1959, THE REFEREE'S SALARY AND
EXPENSE FUND SHOWED SURPLUSES FOR THE FIRST FIVE FISCAL YEARS AND
DEFICITS FOR THE LAST FIVE.  FOR FISCAL 1969, 107,481 NO-ASSET CASES
WERE TERMINATED (AS COMPARED WITH 169,500 NONBUSINESS CASES FILED.) 
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, TABLES OF BANKRUPTCY
STATISTICS FOR FISCAL YEAR ENDING JUNE 30, 1969, PP. 5, 10 (1971). 
THIS MEANS, OF COURSE, THAT THE FEES WERE PAID IN THOSE TERMINATED NO
ASSET CASES.  UNDUE HARDSHIP AND DENIAL OF ACCESS TO THE COURTS ARE NOT
APPARENT FROM THIS RECORD OF ACHIEVEMENT. 

/8/  IF THE FEES TOTAL $40, AS THEY MAY UNDER GENERAL ORDER NO. 15,
305 U.S. 687 (1939), 11 U.S.C.APP., P. 2203, THESE AVERAGE WEEKLY
FIGURES ARE REDUCED TO $1.54 AND $1.03 RESPECTIVELY. 

/9/  WE FAIL TO SEE HOW A DISCHARGE IN BANKRUPTCY IN ITSELF WILL
PREVENT THE METROPOLITAN FROM ISSUING AN UNFAVORABLE REFERENCE LETTER
ABOUT KRAS. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I CONCUR FULLY IN THE COURT'S OPINION.  THE PAINSTAKING AND PRECISE
DELINEATION BY MR. JUSTICE HARLAN OF THE INTERESTS INVOLVED IN BODDIE
V. CONNECTICUT, 401 U.S. 371 (1971), OUGHT NOT TO BE IGNORED AS THE
DISSENTING OPINIONS WOULD DO.  MOREOVER, THE EXCLUSIVITY OF A STATE'S
CONTROL OF MARRIAGE AND DIVORCE IS A FAR CRY FROM THE DEGREE OF
GOVERNMENT CONTROL OVER RELATIONS BETWEEN DEBTOR AND CREDITOR, AS MR.
JUSTICE BLACKMUN HAS POINTED OUT.  IN A BANKRUPTCY PROCEEDING THE
GOVERNMENT, THROUGH THE COURT, IS NO MORE THAN THE OVERSEER AND THE
ADMINISTRATOR OF THE PROCESS; IT IS NOT THE ABSOLUTE AND EXCLUSIVE
CONTROLLER AS WITH THE DISSOLUTION OF MARRIAGE.  LIKE THE DESCENT AND
DISTRIBUTION OF PROPERTY FOR WHICH ALL STATES HAVE PROVIDED STATUTES
AND PROBATE COURTS, THE BANKRUPTCY COURT IS BUT ONE MODE OF ORDERLY
ADJUSTMENT WITH CREDITORS; IT IS NOT THE ONLY ONE SINCE MANY DEBTORS
WORK OUT BINDING PRIVATE ADJUSTMENTS WITH CREDITORS. 

SURELY THERE ARE STRONG ARGUMENTS, AS A MATTER OF POLICY, FOR THE
RESULT THE DISSENTING VIEW ASSERTS.  BUT CONGRESS HAS NOT YET SEEN FIT
TO DECLARE THE POLICY THAT THE DISSENTERS NOW FIND IN THE
CONSTITUTION.  IN 1970 CONGRESS AUTHORIZED A TRIPARTITE COMMISSION TO
REVIEW THE BANKRUPTCY LAWS.  /1/  THE COMMISSION HAS BEEN ENGAGED IN
ITS TASK FOR MORE THAN TWO YEARS AND IT IS HARDLY LIKELY THAT THIS
PROBLEM WILL ESCAPE ITS CONSIDERATION.  /2/  THE CONSTITUTION IS NOT
THE EXCLUSIVE SOURCE OF LAW REFORM, EVEN NEEDED REFORM, IN OUR SYSTEM. 

/1/  PUB. L. 91-354, 84 STAT. 468. 

/2/  THE COMMISSION'S MANDATE REQUIRES IT TO "STUDY, ANALYZE,
EVALUATE, AND RECOMMEND CHANGES" IN THE BANKRUPTCY ACT "IN ORDER FOR
SUCH ACT TO REFLECT AND ADEQUATELY MEET THE DEMANDS OF PRESENT
TECHNICAL, FINANCIAL, AND COMMERCIAL ACTIVITIES.  THE COMMISSION'S
STUDY . . . SHALL INCLUDE A CONSIDERATION OF THE BASIC PHILOSOPHY OF
BANKRUPTCY, THE CAUSES OF BANKRUPTCY, THE POSSIBLE ALTERNATIVES TO THE
PRESENT SYSTEM OF BANKRUPTCY ADMINISTRATION, THE APPLICABILITY OF
ADVANCED MANAGEMENT TECHNIQUES TO ACHIEVE ECONOMICS IN THE
ADMINISTRATION OF THE ACT, AND ALL OTHER MATTERS WHICH THE COMMISSION
SHALL DEEM RELEVANT."  OF PARTICULAR RELEVANCE IS THE PREAMBLE TO THE
ACT CREATING THE COMMISSION, WHICH RECITES IN PART THAT "THE TECHNICAL
ASPECTS OF THE BANKRUPTCY ACT ARE INTERWOVEN WITH THE RAPID EXPANSION
OF CREDIT WHICH HAS REACHED PROPORTIONS FAR BEYOND ANYTHING PREVIOUSLY
EXPERIENCED BY THE CITIZENS OF THE UNITED STATES." 

THE REPORT OF THE COMMISSION IS TO BE SUBMITTED PRIOR TO JUNE 30,
1973.  PUB. L. 92-251, 86 STAT. 63. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

ON MAY 28, 1971, ROBERT KRAS, THE APPELLEE, SOUGHT TO FILE A
VOLUNTARY PETITION IN BANKRUPTCY.  IN AN ACCOMPANYING AFFIDAVIT, HE
DESCRIBED HIS ECONOMIC PLIGHT.  HE RESIDED IN A 2 1/2 ROOM APARTMENT
WITH HIS WIFE, HIS TWO YOUNG CHILDREN, HIS MOTHER, AND HER CHILD.  HIS
EIGHT-MONTH-OLD SON HAD CYSTIC FIBROSIS AND AT THE TIME OF THE
AFFIDAVIT WAS UNDERGOING HOSPITAL TREATMENT.  UNEMPLOYED SINCE MAY
1969, EXCEPT FOR ODD JOBS, HE SUPPORTED HIS HOUSEHOLD ON A TOTAL PUBLIC
ASSISTANCE ALLOTMENT OF $366 PER MONTH-- ALL OF WHICH WAS CONSUMED ON
RENT AND THE MOST BASIC NECESSITIES OF LIFE.  HIS SOLE ASSETS CONSISTED
OF $50 WORTH OF CLOTHING AND ESSENTIAL HOUSE HOLD GOODS.  /1/ 

HE SOUGHT A DISCHARGE FROM OVER $6,000 IN DEBTS, PARTICULARLY HIS
INDEBTEDNESS TO A FORMER EMPLOYER THAT HE CONTENDED HAMPERED HIS
PRESENT EFFORTS TO FIND A PERMANENT JOB:  "I EARNESTLY SEEK A DISCHARGE
IN BANKRUPTCY . . . IN ORDER TO RELIEVE MYSELF AND MY FAMILY OF THE
DISTRESS OF FINANCIAL INSOLVENCY AND CREDITOR HARASSMENT AND IN ORDER
TO MAKE A NEW START IN LIFE . . . . WHEN I DO GET A JOB I WANT TO BE
ABLE TO SPEND MY WAGES FOR THE SUPPORT OF MYSELF AND MY FAMILY AND FOR
THE MEDICAL CARE OF MY SON, INSTEAD OF PAYING THEM TO MY CREDITORS AND
FORCING MY FAMILY TO REMAIN DEPENDENT ON WELFARE." 

HE INDICATED THAT HE WAS UNABLE TO PAY THE $50 BANKRUPTCY FILING FEE
IN A LUMP SUM, /2/  AND COULD NOT PROMISE TO PAY IT IN INSTALLMENTS, AS
REQUIRED BEFORE THE PETITION COULD BE FILED.  /3/  HE CONTENDED THAT
THE FEE REQUIREMENT WAS UNCONSTITUTIONAL AS APPLIED TO HIM, /4/  AND
MOVED FOR LEAVE TO PROCEED WITHOUT PAYING THE FEE. 

THE DISTRICT COURT HELD THAT UNDER THE DOCTRINE OF BODDIE V.
CONNECTICUT, 401 U.S. 371, THE STATUTORY REQUIREMENT OF A PREPAID
BANKRUPTCY FILING FEE WOULD VIOLATE KRAS' FIFTH AMENDMENT RIGHT TO DUE
PROCESS OF LAW.  331 F.SUPP.  1207, 1212.  /5/  THE COURT ORDERED THE
PETITION FILED AND DIRECTED THE REFEREE IN BANKRUPTCY TO MAKE PROVISION
FOR THE SURVIVAL OF THE APPELLEE'S OBLIGATION TO PAY THE FILING FEE. 
WE NOTED PROBABLE JURISDICTION OF THE GOVERNMENT'S APPEAL.  405 U.S.
915.  I AGREE WITH THE DISTRICT COURT AND WOULD, THEREFORE, AFFIRM ITS
JUDGMENT. 

BODDIE HELD THAT A CONNECTICUT STATUTE REQUIRING THE PAYMENT OF AN
AVERAGE $60 FEE AS A PREREQUISITE TO A DIVORCE ACTION WAS
UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, AS APPLIED TO INDIGENTS UNABLE TO PAY THE FEE.  THE COURT
REASONED THAT DUE PROCESS PROTECTIONS ARE TRADITIONALLY VIEWED AS
SAFEGUARDS FOR A DEFENDANT, BECAUSE AT THE POINT WHEN A PLAINTIFF
INVOKES THE GOVERNMENTAL POWER OF A COURT, THE JUDICIAL PROCEEDING IS
"THE ONLY EFFECTIVE MEANS OF RESOLVING THE DISPUTE AT HAND AND DENIAL
OF A DEFENDANT'S FULL ACCESS TO THAT PROCESS RAISES GRAVE PROBLEMS FOR
ITS LEGITIMACY."  401 U.S. AT 376.  BUT A PARTY TO A MARRIAGE REMAINS
UNDER SERIOUS AND CONTINUING OBLIGATION IMPOSED BY THE STATE, WHICH
CANNOT BE REMOVED EXCEPT BY JUDICIAL DISSOLUTION OF THE MARITAL BOND. 
THUS, WE CONCLUDED THAT: 

     "(ALTHOUGH THEY ASSERT HERE DUE PROCESS RIGHTS AS WOULD-BE

  PLAINTIFFS, WE THINK APPELLANTS' PLIGHT, BECAUSE RESORT TO THE

  STATE COURTS IS THE ONLY AVENUE TO DISSOLUTION OF THEIR

  MARRIAGES, IS AKIN TO THAT OF DEFENDANTS FACED WITH EXCLUSION

  FROM THE ONLY FORUM EFFECTIVELY EMPOWERED TO SETTLE THEIR

  DISPUTES.  RESORT TO THE JUDICIAL PROCESS BY THESE PLAINTIFFS IS

  NO MORE VOLUNTARY IN A REALISTIC SENSE THAN THAT OF THE DEFENDANT

  CALLED UPON TO DEFEND HIS INTERESTS IN COURT.  FOR BOTH GROUPS

  THIS PROCESS IS NOT ONLY THE PARAMOUNT DISPUTE-SETTLEMENT

  TECHNIQUE, BUT, IN FACT, THE ONLY AVAILABLE ONE."  ID., AT

  376-377. 

THE VIOLATION OF DUE PROCESS SEEMS TO ME EQUALLY CLEAR IN THE
PRESENT CASE.  IT IS UNDISPUTED THAT KRAS IS MAKING A GOOD-FAITH
ATTEMPT TO OBTAIN A DISCHARGE IN BANKRUPTCY, AND THAT HE IS IN FACT
INDIGENT.  AS WAS TRUE IN BODDIE, THE "WELFARE INCOME . . . BARELY
SUFFICES TO MEET THE COSTS OF THE DAILY ESSENTIALS OF LIFE AND INCLUDES
NO ALLOTMENT THAT COULD BE BUDGETED FOR THE EXPENSE TO GAIN ACCESS TO
THE COURTS . . . . "  ID., AT 372373.  /6/ 

SIMILARLY, THE DEBTOR, LIKE THE MARRIED PLAINTIFFS IN BODDIE,
ORIGINALLY ENTERED INTO HIS CONTRACT FREELY AND VOLUNTARILY.  BUT IT IS
THE GOVERNMENT NEVERTHELESS THAT CONTINUES TO ENFORCE THAT OBLIGATION,
AND UNDER OUR "LEGAL SYSTEM" THAT DEBT IS EFFECTIVE ONLY BECAUSE THE
JUDICIAL MACHINERY IS THERE TO COLLECT IT.  THE BANKRUPT IS BANKRUPT
PRECISELY FOR THE REASON THAT THE STATE STANDS READY TO EXACT ALL OF
HIS DEBTS THROUGH GARNISHMENT, ATTACHMENT, AND THE PANOPLY OF OTHER
CREDITOR REMEDIES.  THE APPELLEE CAN BE PURSUED AND HARASSED BY HIS
CREDITORS SINCE THEY HOLD HIS LEGALLY ENFORCEABLE DEBTS. 

AND IN THE UNIQUE SITUATION OF THE INDIGENT BANKRUPT, THE GOVERNMENT
PROVIDES THE ONLY EFFECTIVE MEANS OF HIS EVER BEING FREE OF THESE
GOVERNMENT-IMPOSED OBLIGATIONS.  AS IN BODDIE, THERE ARE NO
"RECOGNIZED, EFFECTIVE ALTERNATIVES, ID., AT 376.  WHILE THE CREDITORS
OF A BANKRUPT WITH ASSETS MIGHT WELL DESIRE TO REACH A COMPROMISE
SETTLEMENT, THAT POSSIBILITY IS FORECLOSED TO THE TRULY INDIGENT
BANKRUPT.  WITH NO FUNDS AND NOT EVEN A SUFFICIENT PROSPECT OF INCOME
TO BE ABLE TO PROMISE THE PAYMENT OF A $50 FEE IN WEEKLY INSTALLMENTS
OF $1.28, THE ASSETLESS BANKRUPT HAS ABSOLUTELY NOTHING TO OFFER HIS
CREDITORS.  AND HIS CREDITORS HAVE NOTHING TO GAIN BY ALLOWING HIM TO
ESCAPE OR REDUCE HIS DEBTS; THEIR ONLY HOPE IS THAT EVENTUALLY HE MIGHT
MAKE ENOUGH INCOME FOR THEM TO ATTACH.  UNLESS THE GOVERNMENT PROVIDES
HIM ACCESS TO THE BANKRUPTCY COURT, KRAS WILL REMAIN IN THE TOTALLY
HOPELESS SITUATION HE NOW FINDS HIMSELF.  THE GOVERNMENT HAS THUS TRULY
PRE-EMPTED THE ONLY MEANS FOR THE INDIGENT BANKRUPT TO GET OUT FROM
UNDER A LIFETIME BURDEN OF DEBT.  /7/ 

THE GOVERNMENT CONTENDS THAT THE FILING FEE IS JUSTIFIED BY THE
CONGRESSIONAL DECISION TO MAKE THE BANKRUPTCY SYSTEM SELF-SUPPORTING. 
/8/  BUT IN BODDIE WE REJECTED THIS SAME "PAY AS YOU GO" ARGUMENT,
FINDING IT AN INSUFFICIENT JUSTIFICATION FOR EXCLUDING THE POOR FROM
THE ONLY AVAILABLE PROCESS TO DISSOLVE A MARRIAGE.  401 U.S., AT 382. 
THE ARGUMENT IS NO MORE PERSUASIVE HERE.  THE CONSTITUTION CANNOT
TOLERATE ACHIEVEMENT OF THE GOAL OF SELF-SUPPORT FOR A BANKRUPTCY
SYSTEM, ANY MORE THAN FOR A DOMESTIC RELATIONS COURT, AT THE PRICE OF
DENYING DUE PROCESS OF LAW TO THE POOR.  IN RE NARON, 334 F.SUPP. 
1150, 1151; IN RE SMITH, 323 F.SUPP.  1082, 1088.  /9/ 

IN MY VIEW, THIS CASE, LIKE BODDIE, DOES NOT REQUIRE US TO DECIDE
"THAT ACCESS FOR ALL INDIVIDUALS TO THE COURTS IS A RIGHT THAT IS, IN
ALL CIRCUMSTANCES, GUARANTEED BY THE DUE PROCESS CLAUSE . . . SO THAT
ITS EXERCISE MAY NOT BE PLACED BEYOND THE REACH OF THE INDIVIDUAL . . .
. "  401 U.S., AT 382-383.  IT IS SUFFICIENT TO HOLD, AS BODDIE DID,
THAT "A STATE MAY NOT, CONSISTENT WITH THE OBLIGATIONS IMPOSED ON IT BY
THE DUE PROCESS CLAUSE . . . , PRE-EMPT THE RIGHT TO DISSOLVE THIS
LEGAL RELATIONSHIP WITHOUT AFFORDING ALL CITIZENS ACCESS TO THE MEANS
IT HAS PRESCRIBED FOR DOING SO."  ID., 383. 

THE BANKRUPTCY ACT RELIEVES "THE HONEST DEBTOR FROM THE WEIGHT OF
OPPRESSIVE INDEBTEDNESS AND (PERMITS) HIM TO START AFRESH FREE FROM THE
OBLIGATIONS AND RESPONSIBILITIES CONSEQUENT UPON BUSINESS MISFORTUNES,"
WILLIAMS V. UNITED STATES FIDELITY & GUARANTY CO., 236 U.S. 549, 554
555.  IT HOLDS OUT A PROMISE TO THE DEBTOR OF "A NEW OPPORTUNITY IN
LIFE AND A CLEAR FIELD FOR FUTURE EFFORT, UNHAMPERED BY THE PRESSURE
AND DISCOURAGEMENT OF PREEXISTING DEBT."  LOCAL LOAN CO. V. HUNT, 292
U.S. 234, 244.  YET THE COURT TODAY DENIES THAT PROMISE TO THOSE WHO
NEED IT MOST, TO THOSE WHO EVERY DAY MUST LIVE FACE-TO-FACE WITH ABJECT
POVERTY-- WHO CANNOT SPARE EVEN $1.28 A WEEK. 

THE COURT TODAY HOLDS THAT CONGRESS MAY SAY THAT SOME OF THE POOR
ARE TOO POOR EVEN TO GO BANKRUPT.  I CANNOT AGREE. 

/1/  THESE ITEMS ARE EXEMPT FROM DISTRIBUTION IN BANKRUPTCY PURSUANT
TO 11 U.S.C. 24 AND N.Y. CIV. PRAC.  LAW SEC. 5205 (1963). 

/2/  THE FEE CONSISTS OF $37 FOR THE REFEREES' SALARY AND EXPENSE
FUND, $10 COMPENSATION FOR THE TRUSTEES, AND $3 TO THE CLERK AS A
FILING FEE.  11 U.S.C. 68(C)(1), 76(C), 80(A). 

/3/  THIS COURT'S GENERAL ORDER IN BANKRUPTCY NO. 35(4), AUTHORIZED
BY 11 U.S.C. 68(C)(1), PERMITS FEES TO BE PAID IN INSTALLMENTS OVER A
SIX-MONTH PERIOD, AMOUNTING TO $1.92 A WEEK; AND, FOR CAUSE, THIS
PERIOD MAY BE EXTENDED FOR AN ADDITIONAL THREE MONTHS, SO THAT THE
DEBTOR WOULD ONLY BE REQUIRED TO PAY $1.28 PER WEEK.  BUT BEFORE THE
BANKRUPTCY PETITION CAN BE FILED, THE PETITIONER MUST BOTH INDICATE
THAT HE IS WITHOUT, AND CANNOT OBTAIN, MONEY WITH WHICH TO PAY THE FEE
IN ADVANCE, AND SET FORTH THE TERMS UPON WHICH HE PROPOSES TO MAKE
INSTALLMENT PAYMENTS.     /4/  THE APPELLEE ALSO CONTENDED THAT THE
FILING FEE SHOULD BE WAIVED UNDER THE GENERAL FEDERAL IN FORMA PAUPERIS
STATUTE, 28 U.S.C. 1915(A).  THAT CONTENTION WAS REJECTED BY THE
DISTRICT COURT ON THE GROUNDS THAT, IN 1946, CONGRESS EXPRESSLY
ELIMINATED BANKRUPTCY PETITIONS IN FORMA PAUPERIS, AND SUBSTITUTED
INSTALLMENT PAYMENTS.  11 U.S.C. 68(C).  IN LIGHT OF THE CLEAR
CONGRESSIONAL INTENT TO ELIMINATE PAUPER PETITIONS, THECOURT CONCLUDED,
CONGRESS DID NOT INTEND TO ALLOW BANKRUPTS TO PROCEED UNDER THE GENERAL
IN FORMA PAUPERIS STATUTE.  SEE ALSO IN RE GARLAND, 428 F.2D 1185, 1186
1187; IN RE SMITH, 323 F.SUPP.  1082, 1084-1085.  THE APPELLEE DOES NOT
QUESTION THAT CONCLUSION HERE. 

/5/  OTHER FEDERAL COURTS HAVE REACHED THE SAME CONCLUSION.  SEE IN
RE HADDOCK, NO. 14810 (CONN., MAY 22, 1972); IN RE SMITH, 341 F.SUPP. 
1297; IN RE RIPLEY, NO. BK 71-0-1003 (NEB., APR. 28, 1972); IN RE
OTTMAN, 336 F.SUPP.  746; IN RE NARON, 334 F.SUPP.  1150; IN RE READ,
NO. BK 71-826 (WDNY, OCT. 19, 1971).  SEE ALSO IN RE SHROPSHIRE (ND
IA., MAR. 28, 1972); IN RE PASSWATER, NOS. IP70-B-3697 AND IP70-B-3698
(SD IND. 1971).  BUT SEE IN RE PARTILLA, NO. 71-B-380 (SDNY OCT. 15,
1971); IN RE MALEVICH, NO. BK 29-71 (NJ 1971).  IN RE GARLAND, SUPRA,
UPON WHICH THE GOVERNMENT RELIES, WAS DECIDED BEFORE OUR DECISION IN
BODDIE. 

/6/  THE APPELLEE INDICATED IN THE AFFIDAVIT SUBMITTED WITH HIS
PETITION: 

"BECAUSE OF MY POVERTY, I AM WHOLLY UNABLE TO PAY OR PROMISE TO PAY
THE FILING FEES, EVEN IN SMALL INSTALLMENTS, AS A CONDITION PRECEDENT
TO DISCHARGE AND ALSO PROVIDE MYSELF AND MY DEPENDENTS WITH DAY-TO-DAY
NECESSITIES.  I HAVE BEEN UNABLE TO BORROW MONEY FROM MY FAMILY,
RELATIVES, OR FRIENDS.  ONE OF THE DEBTS OF WHICH I SEEK A DISCHARGE IN
BANKRUPTCY IS A LOAN FROM MY WIFE'S GRANDMOTHER.  THE NEW YORK CITY
DEPARTMENT OF SOCIAL SERVICES REFUSES TO ALLOT MONEY FOR PAYMENT OF THE
BANKRUPTCY FILING FEES.  I HAVE NO PROSPECT OF IMMEDIATE EMPLOYMENT." 

/7/  IN BODDIE, THE COURT RECOGNIZED THAT MARRIAGE WAS A
"FUNDAMENTAL HUMAN RELATIONSHIP," 401 U.S., AT 383, WHICH INVOLVED
INTERESTS "OF BASIC IMPORTANCE TO OUR SOCIETY."  ID., AT 376.  BUT IT
WAS NOT ANY SUBJECTIVE CONCEPTION OF THE "FUNDAMENTALITY" OF MARRIAGE,
OR DIVORCE FOR THAT MATTER, THAT LED THE COURT TO FIND A DUE PROCESS
VIOLATION IN BODDIE; RATHER, THE SIGNIFICANT FACTOR ABOUT MARRIAGE WAS
THAT "(WITHOUT A PRIOR JUDICIAL IMPRIMATUR, INDIVIDUALS MAY FREELY
ENTER INTO AND RESCIND COMMERCIAL CONTRACTS, FOR EXAMPLE, BUT WE ARE
UNAWARE OF ANY JURISDICTION WHERE PRIVATE CITIZENS MAY COVENANT FOR OR
DISSOLVE MARRIAGES WITHOUT STATE APPROVAL."  ID., AT 376.  IT IS THE
EXISTENCE OF JUDICIALLY ENFORCED OBLIGATIONS COUPLED WITH
MONOPOLIZATION OF THE MEANS OF DISSOLUTION THAT SIMILARLY BESETS THE
INDIGENT BANKRUPT. 

/8/  PRIOR TO 1946, WHILE PAUPER PETITIONERS WERE ACCEPTED WITHOUT
PAYMENT OF FEES, THE REFEREES WHOSE COMPENSATION DEPENDED ON FEES,
OFTEN DEMANDED PAYMENT BEFORE GRANTING A DISCHARGE.  S.REP.  NO. 959,
79TH CONG., 2D SESS., 6-7 (1946); H.R. REP.NO. 1037, 79TH CONG., 1ST
SESS., 6 (1945).  THE 1946 AMENDMENTS TO THE BANKRUPTCY ACT ELIMINATED
PAUPER PETITIONS AND PROVIDED FOR THE PAYMENT OF FIXED FEES FOR EVERY
PETITION FILED, AND THE PAYMENT OF A FIXED PERCENTAGE OF ALL
DISTRIBUTABLE ASSETS.  SEE H.R. REP. NO. 1037, SUPRA, AT 4, 5-6. 

/9/  SEE FUENTES V. SHEVIN, 407 U.S. 67, 90 N. 22; BELL V. BURSON,
402 U.S. 535, 540-541; GOLDBERG V. KELLY, 397 U.S. 254, 261; CF.
GRIFFIN V. ILLINOIS, 351 U.S. 12. 

MOREOVER, THERE IS NO EVIDENCE THAT A SUBSTANTIAL AMOUNT OF REVENUE
WOULD BE LOST BY ALLOWING ASSETLESS INDIGENTS WITH NO PRESENT PROSPECTS
OF PAYING THE FEE TO FILE WITHOUT PREPAYMENT.  ANY LOSS IN FEES THAT
DID RESULT COULD BE PARTLY RECOUPED BY ALLOWING THE FILING-FEE DEBT TO
SURVIVE BANKRUPTCY. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN, DISSENTING. 

WHILE WE JOIN MR. JUSTICE STEWART'S DISSENTING OPINION WE DO SO WITH
THIS EXPLICIT STATEMENT OF REASONS; WE SAID IN BOLLING V. SHARPE, 347
U.S. 497, 499, WHEN HOLDING THAT SEGREGATION OF STUDENTS IN THE
DISTRICT OF COLUMBIA VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT: 

     "THE FIFTH AMENDMENT, WHICH IS APPLICABLE IN THE DISTRICT OF

  COLUMBIA, DOES NOT CONTAIN IN EQUAL PROTECTION CLAUSE AS DOES THE

  FOURTEENTH AMENDMENT WHICH APPLIES ONLY TO THE STATES.  BUT THE

  CONCEPTS OF EQUAL PROTECTION AND DUE PROCESS, BOTH STEMMING FROM

  OUR AMERICAN IDEAL OF FAIRNESS, ARE NOT MUTUALLY EXCLUSIVE.  THE

'EQUAL PROTECTION OF THE LAWS' IS A MORE EXPLICIT SAFEGUARD OF

  PROHIBITED UNFAIRNESS THAN 'DUE PROCESS OF LAW,' AND, THEREFORE,

  WE DO NOT IMPLY THAT THE TWO ARE ALWAYS INTERCHANGEABLE PHRASES. 

  BUT, AS THIS COURT HAS RECOGNIZED, DISCRIMINATION MAY BE SO

  UNJUSTIFIABLE AS TO BE VIOLATIVE OF DUE PROCESS." 

THE INVIDIOUS DISCRIMINATION IN THE PRESENT CASE IS A DENIAL OF DUE
PROCESS BECAUSE IT DENIES EQUAL PROTECTION WITHIN OUR DECISIONS WHICH
MAKE PARTICULARLY "INVIDIOUS" DISCRIMINATION BASED ON WEALTH OR RACE. 

MR. JUSTICE MARSHALL, DISSENTING. 

THE DISSENT OF MR. JUSTICE STEWART, IN WHICH I HAVE JOINED, MAKES
CLEAR THE MAJORITY'S FAILURE TO DISTINGUISH THIS CASE FROM BODDIE V.
CONNECTICUT, 401 U.S. 371 (1971).  I ADD ONLY SOME COMMENTS ON THE
EXTRAORDINARY ROUTE BY WHICH THE MAJORITY REACHES ITS CONCLUSION. 

A. THE MAJORITY NOTES THAT THE MINIMUM AMOUNT THAT APPELLEE KRAS
MUST PAY EACH WEEK IF HE IS PERMITTED TO PAY THE FILING FEES IN
INSTALLMENTS IS ONLY $1.28.  IT SAYS THAT "THIS MUCH AVAILABLE REVENUE
SHOULD BE WITHIN HIS ABLD-BODIED REACH."  ANTE, AT 449. 

APPELLEE SUBMITTED AN AFFIDAVIT IN WHICH HE CLAIMED THAT HE WAS
"UNABLE TO PAY OR PROMISE TO PAY THE FILING FEES, EVEN IN SMALL
INSTALLMENTS."  APP. 5.  THIS CLAIM WAS SUPPORTED BY DETAILED
STATEMENTS OF HIS FINANCIAL CONDITION.  THE AFFIDAVIT WAS UNCHALLENGED
BELOW, BUT THE MAJORITY DOES CHALLENGE IT.  THE DISTRICT JUDGE PROPERLY
ACCEPTED THE FACTUAL ALLEGATIONS AS TRUE.  SEE, E.G., POLLER V.
COLUMBIA BROADCASTING SYSTEM, 368 U.S. 464 (1962); FIRST NATIONAL BANK
OF ARIZONA V. CITIES SERVICE CO., 391 U.S. 253 (1968); 35B C.J.S.,
FEDERAL CIVIL PROCEDURE SEC. 1197 N. 4 (1960).  THE MAJORITY SEEMS TO
BELIEVE THAT IT IS NOT RESTRAINED BY THE TRADITIONAL NOTION THAT JUDGES
MUST ACCEPT UNCHALLENGED, CREDIBLE AFFADAVITS AS TRUE, FOR IT
DISREGARDS THE FACTUAL ALLEGATIONS AND THE INFERENCES THAT NECESSARILY
FOLLOW FROM THEM.  I CANNOT TREAT THAT NOTION SO CAVALIERLY.  /1/ 

EVEN IF KRAS' STATEMENT THAT HE WAS UNABLE TO PAY THE FEES WAS AN
HONEST MISTAKE, SURELY HE CANNOT HAVE BEEN MISTAKEN IN SAYING THAT HE
COULD NOT PROMISE TO PAY THE FEES.  THE MAJORITY DOES NOT DIRECTLY
IMPUGN HIS GOOD FAITH IN MAKING THAT STATEMENT.  YET IF HE CANNOT
PROMISE TO PAY THE FEES, HE CANNOT GET THE INTERIM RELIEF FROM CREDITOR
HARASSMENT THAT, THE MAJORITY SAYS, MAY ENABLE HIM TO PAY THE FEES. 

BUT BEYOND ALL THIS, I CANNOT AGREE WITH THE MAJORITY THAT IT IS SO
EASY FOR THE DESPERATELY POOR TO SAVE $1.92 EACH WEEK OVER THE COURSE
OF SIX MONTHS.  THE 1970 CENSUS FOUND THAT OVER 800,000 FAMILIES IN THE
NATION HAD ANNUAL INCOMES OF LESS THAN $1,000 OR $19.23 A WEEK.  U.S.
BUREAU OF CENSUS, CURRENT POPULATION REPORTS, SERIES P-60, NO. 80; U.S.
BUREAU OF CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 1972 P.
323.  I SEE NO REASON TO REQUIRE THAT FAMILIES IN SUCH STRAITS
SACRIFICE OVER 5% OF THEIR ANNUAL INCOME AS A PREREQUISITE TO GETTING A
DISCHARGE IN BANKRUPTCY.  /2/ 

IT MAY BE EASY FOR SOME PEOPLE TO THINK THAT WEEKLY SAVINGS OF LESS
THAN $2 ARE NO BURDEN.  BUT NO ONE WHO HAS HAD CLOSE CONTACT WITH POOR
PEOPLE CAN FAIL TO UNDERSTAND HOW CLOSE TO THE MARGIN OF SURVIVAL MANY
OF THEM ARE.  A SUDDEN ILLNESS, FOR EXAMPLE, MAY DESTROY WHATEVER
SAVINGS THEY MAY HAVE ACCUMULATED, AND BY ELIMINATING A SENSE OF
SECURITY MAY DESTROY THE INCENTIVE TO SAVE IN THE FUTURE.  A PACK OR
TWO OF CIGARETTES MAY BE, FOR THEM, NOT A ROUTING PURCHASE BUT A LUXURY
INDULGED IN ONLY RARELY.  THE DESPERATELY POOR ALMOST NEVER GO TO SEE A
MOVIE, WHICH THE MAJORITY SEEMS TO BELIEVE IS AN ALMOST WEEKLY
ACTIVITY.  THEY HAVE MORE IMPORTANT THINGS TO DO WITH WHAT LITTLE MONEY
THEY HAVE-- LIKE ATTEMPTING TO PROVIDE SOME COMFORTS FOR A GRAVELY ILL
CHILD, AS KRAS MUST DO. 

IT IS PERFECTLY PROPER FOR JUDGES TO DISAGREE ABOUT WHAT THE
CONSTITUTION REQUIRES.  BUT IT IS DISGRACEFUL FOR AN INTERPRETATION OF
THE CONSTITUTION TO BE PREMISED UPON UNFOUNDED ASSUMPTIONS ABOUT HOW
PEOPLE LIVE. 

B. THE MAJORITY DERIVES SOME SOLACE FROM THE DENIAL OF CERTIORARI IN
IN RE GARLAND, 402 U.S. 966 (1971).  RELIANCE ON DENIAL OF CERTIORARI
FOR ANY PROPOSITION IMPAIRS THE VITALITY OF THE DISCRETION WE EXERCISE
IN CONTROLLING THE CASES WE HEAR.  SEE BROWN V. ALLEN, 344 U.S. 443,
491-492 (1953) (OPINION OF FRANKFURTER, J.).  FOR ALL THAT THE LEGAL
COMMUNITY KNOWS, MR. JUSTICE HARLAN DID NOT JOIN THE DISSENT FROM
DENIAL OF CERTIORARI IN THAT CASE FOR REASONS DIFFERENT FROM THOSE THAT
THE MAJORITY USES TO DISTINGUISH THIS CASE FROM BODDIE.  PERHAPS HE
BELIEVED THAT LOWER COURTS SHOULD HAVE SOME TIME TO CONSIDER THE
IMPLICATIONS OF BODDIE.  MOST OF THE LOWER COURTS HAVE REFUSED TO
FOLLOW THE FIRST CIRCUIT'S DECISION IN GARLAND, 428 F.2D 1185.  SEE
ANTE, AT 453 N. 5 (STEWART, J., DISSENTING).  PERHAPS HE THOUGHT THAT
THE RECORD IN THAT CASE MADE INAPPROPRIATE ANY ATTEMPT TO DETERMINE THE
SCOPE OF BODDIE IN THAT PARTICULAR CASE.  OR PERHAPS HE HAD SOME OTHER
REASON. 

THE POINT OF OUR USE OF A DISCRETIONARY WRIT IS PRECISELY TO
PROHIBIT THAT KIND OF SPECULATION.  WHEN WE DENY CERTIORARI, NO ONE,
NOT EVEN OURSELVES, SHOULD THINK THAT THE DENIAL INDICATES A VIEW ON
THE MERITS OF THE CASE.  IT ILL SERVES JUDGES OF THE COURTS THROUGHOUT
THE COUNTRY TO TELL THEM, AS THE MAJORITY DOES TODAY, THAT IN
ATTEMPTING TO DETERMINE WHAT THE LAW IS, THEY MUST READ, NOT ONLY THE
OPINIONS OF THIS COURT, BUT ALSO THE THOUSANDS OF CASES IN WHICH WE
ANNUALLY DENY CERTIORARI.  /3/ 

C. THE MAJORITY SAYS THAT "(THE DENIAL OF ACCESS TO THE JUDICIAL
FORUM IN BODDIE TOUCHED DIRECTLY . . . ON THE MARITAL RELATIONSHIP." 
IT SEES "NO FUNDAMENTAL INTEREST THAT IS GAINED OR LOST DEPENDING ON
THE AVAILABILITY OF A DISCHARGE IN BANKRUPTCY."  ANTE, AT 444, 445.  IF
THE CASE IS TO TURN ON DISTINCTIONS BETWEEN THE ROLE IN BANKRUPTCY
CASES, /4/  I AGREE WITH MR. JUSTICE STEWART THAT THIS CASE AND BODDIE
CANNOT BE DISTINGUISHED; THE ROLE OF THE GOVERNMENT IN STANDING READY
TO ENFORCE AN OTHERWISE CONTINUING OBLIGATION IS THE SAME. 

HOWEVER, I WOULD GO FURTHER THAN MR. JUSTICE STEWART.  I VIEW THE
CASE AS INVOLVING THE RIGHT OF ACCESS TO THE COURTS, THE OPPORTUNITY TO
BE HEARD WHEN ONE CLAIMS A LEGAL RIGHT, AND NOT JUST THE RIGHT TO A
DISCHARGE IN BANKRUPTCY.  /5/  WHEN A PERSON RAISES A CLAIM OF RIGHT OR
ENTITLEMENT UNDER THE LAWS, THE ONLY FORUM IN OUR LEGAL SYSTEM
EMPOWERED TO DETERMINE THAT CLAIM IS A COURT.  KRAS, FOR EXAMPLE,
CLAIMS THAT HE HAS A RIGHT UNDER THE BANKRUPTCY ACT TO BE FREE OF ANY
DUTY TO PAY HIS CREDITORS.  THERE IS NO WAY TO DETERMINE WHETHER HE HAS
SUCH A RIGHT EXCEPT BY ADJUDICATING HIS CLAIM.  /6/  FAILURE TO DO SO
DENIES HIM ACCESS TO THE COURTS. 

THE LEGAL SYSTEM IS, OF COURSE, NOT SO PERVASIVE AS TO PRECLUDE
PRIVATE RESOLUTION OF DISPUTES.  BUT PRIVATE SETTLEMENTS DO NOT
DETERMINE THE VALIDITY OF CLAIMS OF RIGHT.  SUCH QUESTIONS CAN BE
AUTHORITATIVELY RESOLVED ONLY IN COURTS.  IT IS IN THAT SENSE, I
BELIEVE, THAT WE SHOULD CONSIDER THE EMPHASIS IN BODDIE ON THE
EXCLUSIVENESS OF THE JUDICIAL FORUM-- AND GIVE KRAS HIS DAY IN COURT. 

/1/  THE MAJORITY ALSO MISREPRESENTS APPELLEE'S FINANCIAL
CONDITION.  IT SAYS THAT $1.28 "IS A SUM LESS THAN THE PAYMENTS KRAS
MAKES ON HIS COUCH OF NEGLIGIBLE VALUE IN STORAGE."  ANTE, AT 449. 
NOWHERE IN THE SLENDER RECORD OF THIS CASE CAN I FIND ANY STATEMENT
THAT APPELLEE IS ACTUALLY PAYING ANYTHING FOR THE STORAGE OF THE
COUCH.  HE SAID ONLY THAT HE "OWED PAYMENTS OF $6 PER MONTH" FOR
STORAGE.  APP. 5.  HE ALSO STATED THAT HE OWED $6,428.69, BUT I WOULD
HARDLY READ THAT TO MEAN THAT HE WAS PAYING THAT MUCH TO ANYONE. 

/2/  THE MAJORITY, IN CITING THE "RECORD OF ACHIEVEMENT" OF THE
BANKRUPTCY SYSTEM, IN TERMINATING 107,481 NO-ASSET CASES IN THE FISCAL
YEAR 1969, ANTE, AT 448 N. 7, RELIES ON SPECTRAL EVIDENCE.  BECAUSE THE
FILING FEES BAR RELIEF THROUGH THAT SYSTEM, STATISTICS SHOWING HOW MANY
PEOPLE GOT RELIEF THROUGH THAT SYSTEM ARE UNENLIGHTENING ON THE
QUESTION OF HOW MANY PEOPLE COULD NOT USE THE SYSTEM BECAUSE THEY WERE
TOO POOR.  I DO NOT KNOW HOW MANY PEOPLE CANNOT AFFORD TO PAY A $50 FEE
IN INSTALLMENTS.  BUT I FIND NOTHING IN THE MAJORITY'S OPINION TO
CONVICE ME THAT DUE PROCESS IS AFFORDED A PERSON WHO CANNOT RECEIVE A
DISCHARGE IN BANKRUPTCY BECAUSE HE IS TOO POOR.  EVEN IF ONLY ONE
PERSON IS AFFECTED BY THE FILING FEES, HE IS DENIED DUE PROCESS. 

/3/  THAT ONE OF US UNDERTOOK TO WRITE A DISSENT, EVEN A "POINTED
DISSENT," FROM THE DENIAL OF CERTIORARI SHOULD SUGGEST, AGAIN, NOTHING
AT ALL ABOUT THE VIEWS OF ANY OTHER MEMBERS OF THE COURT ON THE MERITS
OF THE PETITION.  SURELY EACH OF US HAS SEEN MANY CASES IN WHICH A
COLLEAGUE'S DISSENT FROM THE DENIAL OF CERTIORARI POINTED TO AN ISSUE
OF GREAT CONCERN THAT WE THOUGHT SHOULD BE DECIDED BY THIS COURT, BUT
IN WHICH WE DID NOT JOIN BECAUSE WE DID NOT CONSIDER THE CASE TO BE AN
APPROPRIATE VEHICLE FOR DETERMINATION OF THAT ISSUE.     /4/  I AM
INTRIGUED BY THE MAJORITY'S SUGGESTION THAT, BECAUSE THE GRANTING OF A
DIVORCE IMPINGES ON "ASSOCIATIONAL INTERESTS," THE RIGHT TO A DIVORCE
IS CONSTITUTIONALLY PROTECTED.  ARE WE TO REQUIRE THAT STATE DIVORCE
LAWS SERVE COMPELLING STATE INTERESTS?  FOR EXAMPLE, IF A STATE CHOOSES
TO ALLOW DIVORCES ONLY WHEN ONE PARTY IS SHOWN TO HAVE COMMITTED
ADULTERY, MUST ITS REFUSAL TO ALLOW THEM WHEN THE PARTIES CLAIM
IRRECONCILABLE DIFFERENCES BE JUSTIFIED BY SOME COMPELLING STATE
INTEREST?  I RAISE THESE QUESTIONS ONLY TO SUGGEST THAT THE MAJORITY'S
FOCUS ON THE RELATIVE IMPORTANCE IN THE CONSTITUTIONAL SCHEME OF
DIVORCE AND BANKRUPTCY IS MISPLACED.  WHAT IS INVOLVED IS THE
IMPORTANCE OF ACCESS TO THE COURTS, EITHER TO REMOVE AN OBLIGATION THAT
OTHER BRANCHES OF THE GOVERNMENT STAND READY TO ENFORCE, AS MR. JUSTICE
STEWART SEES IT, OR TO DETERMINE CLAIMS OF RIGHT, AS I SEE IT. 

/5/  THE MAJORITY SUGGESTS, THAT NO SUCH RIGHT IS INVOLVED, BECAUSE
CONGRESS COULD HAVE COMMITTED THE ADMINISTRATION OF THE BANKRUPTCY ACT
TO A NONJUDICIAL AGENCY.  ANTE, AT 447.  I HAVE SOME DOUBT ABOUT THE
PROPOSITION THAT A STATUTORILY CREATED RIGHT CAN BE FINALLY DETERMINED
BY AN AGENCY, WITH NO METHOD FOR A DISAPPOINTED CLAIMANT TO SECURE
JUDICIAL REVIEW.  BUT I HAVE NO DOUBT THAT CONGRESS COULD NOT PROVIDE
THAT ONLY THE WELL-OFF HAD THE RIGHT TO PRESENT THEIR CLAIMS TO THE
AGENCY.  AS SHOULD BE CLEAR, THE QUESTION IS ONE OF ACCESS TO THE FORUM
EMPOWERED TO DETERMINE THE CLAIM OF RIGHT; IT IS ONLY SHORTHAND TO CALL
THIS A QUESTION OF ACCESS TO THE COURTS. 

/6/  IT MIGHT BE SAID THAT THE RIGHT HE CLAIMS DOES NOT COME INTO
PLAY UNTIL HE HAS FULFILLED A CONDITION PRECEDENT BY PAYING THE FILING
FEES.  BUT THE DISTINCTION BETWEEN PROCEDURE AND SUBSTANCE IS NOT
UNKNOWN IN THE LAW AND CAN BE DRAWN ON TO COUNTER THAT ARGUMENT. 

EDWARD R. KORMAN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY
GENERAL WOOD, AND ALAN S. ROSENTHAL. 

KALMAN FINKEL ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WAS LEON B. POLSKY. 
..END :













RICCI V. CHICAGO MERCANTILE EXCHANGE, 409 U.S. 289 


       RICCI V. CHICAGO MERCANTILE EXCHANGE ET AL.

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 71-858.  ARGUED OCTOBER 18, 1972-- DECIDED JANUARY 9,

           1973 


PETITIONER FILED AN ANTITRUST COMPLAINT CHARGING RESPONDENST WITH
CONSPIRING TO RESTRAIN HIS BUSINESS BY TRANSFERRING TO ANOTHER PERSON
PETITIONER'S CHICAGO MERCANTILE EXCHANGE MEMBERSHIP, WITHOUT NOTICE AND
HEARING, AND IN VIOLATION OF EXCHANGE RULES AND THE COMMODITY EXCHANGE
ACT.  THE DISTRICT COURT DISMISSED THE COMPLAINT.  THE COURT OF APPEALS
REVERSED BUT HELD THAT THE ANTITRUST ACTION SHOULD BE STAYED.  HELD:
THE COURT OF APPEALS CORRECTLY DETERMINED THAT THE ANTITRUST
PROCEEDINGS SHOULD BE STAYED UNTIL THE COMMODITY EXCHANGE COMMISSION
CAN PASS ON THE VALIDITY OF RESPONDENTS' CONDUCT UNDER THE COMMODITY
EXCHANGE ACT.  THOUGH THE COMMISSION CANNOT DECIDE WHETHER THE ACT AND
RULES IMMUNIZE CONDUCT FROM THE ANTITRUST LAWS, THE COMMISSION'S
DETERMINATION OF WHETHER THE EXCHANGE'S RULES WERE VIOLATED AS
PETITIONER CLAIMS OR WERE FOLLOWED REQUIRES A FACTUAL DETERMINATION
WITHIN THE SPECIAL COMPETENCE OF THE COMMISSION.  THAT DETERMINATION
WILL GREATLY AID THE ANTITRUST COURT IN ARRIVING AT THE ESSENTIAL
ACCOMMODATION BETWEEN THE ANTITRUST AND REGULATORY REGIMES.  PP. 298
308. 

447 F.2D 713, AFFIRMED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, BLACKMUN, AND REHNQUIST, JJ., JOINED.  BURGER, C. J.,
FILED A CONCURRING OPINION, POST, P. 308.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST.  P. 308.  MARSHALL, J., FILED A DISSENTING
OPINION, IN WHICH DOUGLAS, STEWART, AND POWELL, JJ., JOINED, POST, P.
309. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER IN THIS ANTITRUST CASE THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT PROPERLY STAYED FURTHER JUDICIAL
ACTION PENDING ADMINISTRATIVE PROCEEDINGS WHICH THE COURT DEEMED
AVAILABLE UNDER THE COMMODITY EXCHANGE ACT, 42 STAT. 998, AS AMENDED, 7
U.S.C. 1 ET SEQ. 

THE CASE BEGAN WHEN PETITIONER RICCI FILED A COMPLAINT AGAINST THE
CHICAGO MERCANTILE EXCHANGE, ITS PRESIDENT, VICE PRESIDENT, AND
CHAIRMAN OF THE BOARD, AND AGAINST THE SIEGEL TRADING COMPANY, A MEMBER
OF THE EXCHANGE, AND ITS PRESIDENT, CHARGING A CONSPIRACY IN VIOLATION
OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. 1.  THE
COMPLAINT ALLEGED THAT RICCI HAD PURCHASED A MEMBERSHIP IN THE EXCHANGE
IN 1967, USING FUNDS BORROWED FROM THE TRADING COMPANY, AND THAT IN
FEBRUARY 1969 THE EXCHANGE, AT THE INSTANCE OF THE TRADING COMPANY,
TRANSFERRED THE MEMBERSHIP TO ANOTHER, WITHOUT NOTICE AND HEARING,
UTILIZING A BLANK TRANSFER AUTHORIZATION THAT HAD PREVIOUSLY BEEN
REVOKED.  /1/  ALLEGEDLY, THIS COURSE OF CONDUCT VIOLATED BOTH THE
RULES OF THE EXCHANGE AND THE COMMODITY EXCHANGE ACT AND WAS PURSUANT
TO AN UNLAWFUL CONSPIRACY AIMED AT RESTRAINING THE CONDUCT OF RICCI'S
BUSINESS.  THE RESULT WAS, THE COMPLAINT ASSERTED, THAT RICCI WAS
EXCLUDED FROM TRADING ON THE EXCHANGE FROM FEBRUARY 11, 1969, UNTIL
MARCH 4, 1969, WHEN HE PURCAHSED ANOTHER MEMBERSHIP AT A CONSIDERABLY
HIGHER PRICE THAN THE TRANSFERRED MEMBERSHIP HAD PREVIOUSLY COST. 

ON MOTION OF RESPONDENTS, THE DISTRICT COURT DISMISSED THE
COMPLAINT.  THE COURT OF APPEALS REVERSED THAT JUDGMENT; BUT BECAUSE
THE CHALLENGED CONDUCT WAS DEEMED SUBJECT TO THE JURISDICTION OF THE
SECRETARY OF AGRICULTURE (SECRETARY) OR THE COMMODITY EXCHANGE
COMMISSION (COMMISSION) BY VIRTUE OF THE PROVISIONS OF THE COMMODITY
EXCHANGE ACT, THE DISTRICT COURT WAS DIRECTED TO STAY FURTHER
PROCEEDINGS TO PERMIT ADMINISTRATIVE ACTION TO TAKE PLACE.  447 F.2D
713 (CA7 1971).  WE GRANTED CERTIORARI, 405 U.S. 953 (1972), AND NOW
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

        I 

THE COMMODITY EXCHANGE ACT, /2/  FIRST PASSED IN 1922 AND FROM TIME
TO TIME AMENDED-- THE MOST RECENT SUBSTANTIAL AMENDMENTS BEING IN 1968-
MAKES DEALING IN COMMODITY FUTURES A CRIME EXCEPT WHEN UNDERTAKEN BY
OR THROUGH MEMBERS OF A BOARD OF TRADE THAT MEETS CERTAIN STATUTORY
CRITERIA AND THAT IS DESIGNATED AS A "CONTRACT MARKET" BY THE
SECRETARY.  7 U.S.C. 6 AND 6H.  /3/  CONTRACT MARKETS MUST FILE WITH
THE SECRETARY THEIR BYLAWS, RULES, AND REGULATIONS, AND HAVE THE
EXPRESS STATUTORY DUTY TO ENFORCE ALL SUCH PRESCRIPTIONS (1) "WHICH
RELATE TO TERMS AND CONDITIONS IN CONTRACTS OF SALE . . . OR RELATE TO
OTHER TRADING REQUIREMENTS, AND WHICH HAVE NOT BEEN DISAPPROVED BY THE
SECRETARY OF AGRICULTURE PURSUANT TO" HIS STATUTORY AUTHORITY, ID.,
SEC. 7A(8), /4/  OR (2) "WHICH PROVIDE MINIMUM FINANCIAL STANDARDS AND
RELATED REPORTING REQUIREMENTS FOR FUTURES COMMISSION MERCHANTS WHO ARE
MEMBERS OF SUCH CONTRACT MARKET, AND WHICH HAVE BEEN APPROVED BY THE
SECRETARY OF AGRICULTURE," ID., SEC. 7A(9).  /5/  IF ANY CONTRACT
MARKET IS NOT ENFORCING ITS RULES OF GOVERNMENT MADE A CONDITION OF ITS
DESIGNATION, OR IF IT IS VIOLATING ANY PROVISION OF THE ACT, THE
COMMISSION, AN OFFICIAL AGENCY ESTABLISHED BY THE ACT, /6/ IS
AUTHORIZED, UPON NOTICE AND HEARING AND SUBJECT TO JUDICIAL REVIEW, TO
SUSPEND OR REVOKE THE DESIGNATION OF THE BOARD OF TRADE AS A CONTRACT
MARKET, ID., SEC. 8(A), /7/  OR MAY ORDER SUCH CONTRACT MARKET AND ANY
DIRECTOR, OFFICER, AGENT, OR EMPLOYEE TO CEASE AND DESIST FROM SUCH
CONDUCT, ID., SEC. 13A.  /8/  UNDER THE RELEVANT REGULATIONS, ANY
INTERESTED PERSON HAVING INFORMATION CONCERNING SUCH VIOLATION MAY
REQUEST THE COMMISSION TO INSTITUTE PROCEEDINGS, OR THE COMMISSION MAY
INITIATE PROCEEDINGS ON ITS OWN MOTION, /9/  AND THERE IS PROVISION FOR
PERSONS SEEKING INTERVENTION IN SUCH PROCEEDINGS.  /10/

        II 

IT WAS AGAINST THIS STATUTORY BACKGROUND THAT PETITIONER ALLEGED HE
HAD BEEN DEPRIVED OF HIS MEMBERSHIP CONTRARY TO THE RULES OF THE
EXCHANGE, THE COMMODITY EXCHANGE ACT, AND THE SHERMAN ACT.  AND IT WAS
IN THIS CONTEXT THAT THE COURT OF APPEALS, HAVING CONCLUDED THAT THE
SPECIFIC EXCHANGE RULES ALLEGEDLY VIOLATED /11/  WERE WITHIN THE BOUNDS
OF ADJUDICATIVE AND REMEDIAL JURISDICTION OF THE COMMODITY EXCHANGE
COMMISSION, DIRECTED THE DISTRICT COURT TO HOLD ITS HAND AND AFFORD THE
OPPORTUNITY FOR ADMINISTRATIVE CONSIDERATION OF THE DISPUTE BETWEEN
PETITIONER AND THE ALLEGED COCONSPIRATOR-DEFENDANTS. 

THE PROBLEM TO WHICH THE COURT OF APPEALS ADDRESSED ITSELF IS
RECURRING.  /12/  IT ARISES WHEN CONDUCT SEEMINGLY WITHIN THE REACH OF
THE ANTITRUST LAWS IS ALSO AT LEAST ARGUABLY PROTECTED OR PROHIBITED BY
ANOTHER REGULATORY STATUTE ENACTED BY CONGRESS.  OFTEN, BUT NOT ALWAYS,
THE OTHER REGIME INCLUDES AN ADMINISTRATIVE AGENCY WITH AUTHORITY TO
ENFORCE THE MAJOR PROVISIONS OF THE STATUTE IN ACCORDANCE WITH THAT
STATUTE'S DISTINCTIVE STANDARDS, WHICH MAY OR MAY NOT INCLUDE CONCERN
FOR COMPETITIVE CONSIDERATIONS. 

SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S. 341 (1963), WAS A CASE
WHERE THE CONDUCT CHALLENGED IN AN ANTITRUST COMPLAINT WAS NOT WITHIN
THE JURISDICTION OF AN ADMINISTRATIVE AGENCY BUT WAS NEVERTHELESS
CLAIMED TO BE IMMUNE FROM ANTITRUST CHALLENGE BY VIRTUE OF THE
SECURITIES EXCHANGE ACT OF 1934.  SILVER SOUGHT TO RECOVER DAMAGES
ALLEGEDLY SUFFERED WHEN HIS WIRE CONNECTIONS WITH EXCHANGE MEMBERS WERE
TERMINATED WITHOUT NOTICE OR HEARING UNDER EXCHANGE RULES ADOPTED
PURSUANT TO THE SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 881, AS
AMENDED, 15 U.S.C. 78A ET SEQ. UNDER THIS ACT, THE SECURITIES AND
EXCHANGE COMMISSION HAD GENERAL POWER TO APPROVE OR DISAPPROVE EXCHANGE
RULES, BUT IT HAD NO AUTHORITY TO DEAL WITH CHALLENGES, SUCH AS
SILVER'S, TO SPECIFIC APPLICATIONS OF EXCHANGE RULES.  MOREOVER, THE
STATUTE CONFERRED ON THE EXCHANGE NO EXPRESS EXEMPTION FROM THE
ANTITRUST LAWS.  WE DECLINED TO HOLD THAT CONGRESS INTENDED TO OUST
COMPLETELY THE ANTITRUST LAWS AND SUPPLANT THEM WITH THE SELF
REGULATORY SCHEME AUTHORIZED BY THE EXCHANGE ACT.  REPEAL OF THE
ANTITRUST LAWS WAS TO BE IMPLIED "ONLY IF NECESSARY TO MAKE THE
SECURITIES EXCHANGE ACT WORK, AND EVEN THEN ONLY TO THE MINIMUM EXTENT
NECESSARY."  373 U.S.,AT 357.  THE QUESTION THUS BECAME THE EXTENT TO
WHICH, IF ANY, THE "CHARACTER AND OBJECTIVES OF THE DUTY OF EXCHANGE
SELF-REGULATION CONTEMPLATED BY THE SECURITIES EXCHANGE ACT ARE
INCOMPATIBLE WITH THE MAINTENANCE OF AN ANTITRUST ACTION."  ID., AT
358.  CONCEDING THAT THE "ENTIRE PUBLIC POLICY OF SELF-REGULATION,
BEGINNING WITH THE IDEA THAT THE EXCHANGE MAY SET UP BARRIERS TO
MEMBERSHIP, CONTEMPLATES THAT THE EXCHANGE WILL ENGAGE IN RESTRAINTS OF
TRADE WHICH MIGHT WELL BE UNREASONABLE ABSENT SANCTION BY THE
SECURITIES EXCHANGE ACT," ID., AT 360, AND HENCE THAT "PARTICULAR
INSTANCES OF EXCHANGE SELF-REGULATION WHICH FALL WITHIN THE SCOPE AND
PURPOSE OF THE SECURITIES EXCHANGE ACT MAY BE REGARDED AS JUSTIFIED IN
ANSWER TO THE ASSERTION OF AN ANTITRUST CLAIM," ID., AT 361, THE COURT
FINALLY CONCLUDED THAT NOTHING IN THE TERMS OR POLICY OF THE ACT
REQUIRED OR CONTEMPLATED THAT A SELF-REGULATING EXCHANGE BE PERMITTED
TO IMPOSE SERIOUS DEPRIVATIONS WITHOUT NOTICE AND OPPORTUNITY FOR A
HEARING, AND THAT NEITHER THE STATUTE NOR EXCHANGE RULES POSED ANY
LEGAL BARRIER TO THE ANTITRUST ACTION. 

IN ARRIVING AT THIS CONCLUSION, THE COURT EXPRESSLY NOTED THAT THE
SECURITIES AND EXCHANGE COMMISSION HAD NO AUTHORITY TO REVIEW SPECIFIC
INSTANCES OF ENFORCEMENT OF EXCHANGE RULES; THAT THIS "OBVIATED) ANY
NEED TO CONSIDER WHETHER PETITIONERS WERE REQUIRED TO RESORT TO THE
COMMISSION FOR RELIEF BEFORE COMING INTO COURT," ID., AT 358, AND
AVOIDED "ANY PROBLEM OF CONFLICT OR COEXTENSIVENESS OF COVERAGE WITH
THE AGENCY'S REGULATORY POWER," IBID.; AND THAT IF THERE HAD BEEN SUCH
JURISDICTION IN THE COMMISSION WITH "ENSUING JUDICIAL REVIEW . . . A
DIFFERENT CASE WOULD ARISE CONCERNING EXEMPTION FROM THE OPERATION OF
LAWS DESIGNED TO PREVENT ANTICOMPETITIVE ACTIVITY, AN ISSUE WE DO NOT
DECIDE TODAY."  ID., AT 358 N. 12. 

THAT "DIFFERENT CASE" IS NOW BEFORE US, BUT IN THE CONTEXT OF THE
COMMODITY EXCHANGE ACT, AND WE AGREE WITH THE COURT OF APPEALS THAT,
GIVEN ADMINISTRATIVE AUTHORITY TO EXAMINE THE RICCI-EXCHANGE DISPUTE IN
THE LIGHT OF THE REGULATORY SCHEME AND EXCHANGE RULES, THE ANTITRUST
ACTION SHOULD BE STAYED UNTIL THE ADMINISTRATIVE OFFICIALS HAVE HAD
OPPORTUNITY TO ACT.  THIS JUDGMENT RESTS ON THREE RELATED PREMISES:
(1) THAT IT WILL BE ESSENTIAL FOR THE ANTITRUST COURT TO DETERMINE
WHETHER THE COMMODITY EXCHANGE ACT OR ANY OF ITS PROVISIONS ARE
"INCOMPATIBLE WITH THE MAINTENANCE OF AN ANTITRUST ACTION," ID., AT
358; (2) THAT SOME FACETS OF THE DISPUTE BETWEEN RICCI AND THE EXCHANGE
ARE WITHIN THE STATUTORY JURISDICTION OF THE COMMODITY EXCHANGE
COMMISSION; AND (3) THAT ADJUDICATION OF THAT DISPUTE BY THE COMMISSION
PROMISES TO BE OF MATERIAL AID IN RESOLVING THE IMMUNITY QUESTION. 
/13/ 

AS TO THE FIRST PREMISE, THE ARGUMENT THAT THE COMMODITY EXCHANGE
ACT TO SOME EXTENT LIMITS THE APPLICABILITY OF THE ANTITRUST LAWS, AND
MAY LIMIT THEM IN THIS CASE, IS PLAINLY SUBSTANTIAL.  REPEAL OF THE
ANTITRUST LAWS IS NOT TO BE LIGHTLY ASSUMED.  UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 350 (1963); SILVER V. NEW
YORK STOCK EXCHANGE, SUPRA, AT 357; CALIFORNIA V. FPC, 369 U.S. 482,
485 (1962); GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 456-457
(1945); UNITED STATES V. BORDEN CO., 308 U.S. 188, 198 (1939).  BUT
HERE THE EXPRESS WILL OF CONGRESS IS THAT TO DEAL IN COMMODITY FUTURES
ONE MUST EITHER BE, OR DEAL THROUGH, A MEMBER OF A BOARD OF TRADE
HAVING SPECIFIED QUALIFICATIONS AND CARRYING OFFICIAL DESIGNATION AS A
CONTRACT MARKET.  THE ACT CLEARLY CONTEMPLATES A MEMBERSHIP
ORGANIZATION AND HENCE THE EXISTENCE OF CRITERIA FOR THE ACQUISITION,
TRANSFER, AND LOSS OF MEMBERSHIP.  THE CHICAGO MERCANTILE EXCHANGE HAS
SUCH MEMBERSHIP RULES, AND IT HAD THE STATUTORY DUTY TO ENFORCE THEM TO
THE EXTENT THAT THEY CONSTITUTED OR WERE RELATED TO "TRADING
REQUIREMENTS," 7 U.S.C. 7A(8).  IF THE TRANSFER OF RICCI'S MEMBERSHIP
WAS PURSUANT TO A VALID RULE, THE IMMEDIATE QUESTION FOR THE ANTITRUST
COURT IS WHETHER THE RULE ITSELF AND RICCI'S EXCLUSION UNDER IT ARE
INSULATED FROM ANTITRUST ATTACK.  THE QUESTION HAS SUBSTANCE, FOR THE
COMMODITY EXCHANGE ACT, LIKE THE SECURITIES EXCHANGE ACT, CONTEMPLATES
THAT THE EXCHANGE AND ITS MEMBERS WILL "ENGAGE IN RESTRAINTS OF TRADE
WHICH MIGHT WELL BE UNREASONABLE ABSENT SANCTION" BY THE ACT.  SILVER
V. NEW YORK STOCK EXCHANGE, SUPRA, AT 360.  SEE BOARD OF TRADE OF THE
CITY OF CHICAGO V. UNITED STATES, 246 U.S. 231, 238 (1918).  ON THE
OTHER HAND, IF, AS RICCI ALLEGES, LOSS OF HIS MEMBERSHIP WAS CONTRARY
TO EXCHANGE RULES, THE ANTITRUST ACTION SHOULD VERY LIKELY TAKE ITS
NORMAL COURSE, ABSENT MORE CONVINCING INDICATIONS OF CONGRESSIONAL
INTENT THAN ARE PRESENT HERE THAT THE JURISDICTIONAL AND REMEDIAL
POWERS OF THE COMMISSION ARE EXCLUSIVE. 

THE QUESTION WHETHER THIS MEMBERSHIP DISPUTE IS WITHIN THE
JURISDICTION OF THE COMMODITY EXCHANGE COMMISSION, THE SECOND PREMISE
FOR OUR JUDGMENT, WAS ANSWERED IN THE AFFIRMATIVE BY THE COURT OF
APPEALS.  BECAUSE TRADING IN FUTURES MAY BE DONE ONLY BY OR THROUGH
MEMBERS, THE MEMBERSHIP RULES OF THE EXCHANGE WERE HELD TO RELATE TO
"TRADING REQUIREMENTS" AND WERE THUS AMONG THOSE RULES WHICH THE
EXCHANGE COULD NOT IGNORE WITHOUT VIOLATING THE ACT AND BRINGING ITSELF
WITHIN THE JURISDICTION OF THE COMMISSION TO ADJUDICATE AND REMEDY ANY
VIOLATION "OF THE PROVISIONS OF THIS CHAPTER OR ANY OF THE RULES,
REGULATIONS, OR ORDERS OF THE SECRETARY . . . OR THE COMMISSION
THEREUNDER . . . . "  7 U.S.C. 8(A) AND 13A.  WE NEED NOT FINALLY
DECIDE THE JURISDICTIONAL ISSUE FOR PRESENT PURPOSES, BUT THERE IS
SUFFICIENT STATUTORY SUPPORT FOR ADMINISTRATIVE AUTHORITY IN THIS AREA
THAT THE AGENCY SHOULD AT LEAST BE REQUESTED TO INSTITUTE PROCEEDINGS. 
/14/ 

WE ALSO THINK IT VERY LIKELY THAT A PRIOR AGENCY ADJUDICATION OF
THIS DISPUTE WILL BE A MATERIAL AID IN ULTIMATELY DECIDING WHETHER THE
COMMODITY EXCHANGE ACT FORECLOSES THIS ANTITRUST SUIT, A MATTER THAT
SEEMS TO DEPEND IN THE FIRST INSTANCE ON WHETHER THE TRANSFER OF
RICCI'S MEMBERSHIP WAS IN VIOLATION OF THE ACT FOR FAILURE TO FOLLOW
EXCHANGE RULES.  THAT ISSUE IN TURN APPEARS TO POSE ISSUES OF FACT /15/
AND QUESTIONS ABOUT THE SCOPE, MEANING, AND SIGNIFICANCE OF EXCHANGE
MEMBERSHIP RULES.  THESE ARE MATTERS THAT SHOULD BE DEALT WITH IN THE
FIRST INSTANCE BY THOSE ESPECIALLY FAMILIAR WITH THE CUSTOMS AND
PRACTICES OF THE INDUSTRY AND OF THE UNIQUE MARKETPLACE INVOLVED IN
THIS CASE.  UNITED STATES V. WESTERN PACIFIC R. CO., 352 U.S. 59, 64
65, 65-66 (1965); FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570,
574-575 (1952).  THEY ARE MATTERS TYPICALLY LYING AT THE HEART OF AN
ADMINISTRATIVE AGENCY'S TASK AND HERE THEY APPEAR TO BE MATTERS THAT
CONGRESS HAS PLACED WITHIN THE JURISDICTION OF THE COMMODITY EXCHANGE
COMMISSION.  WE SHOULD RECOGNIZE "THAT THE COURTS, WHILE RETAINING THE
FINAL AUTHORITY TO EXPOUND THE STATUTE, SHOULD AVAIL THEMSELVES OF THE
AID IMPLICIT IN THE AGENCY'S SUPERIORITY IN GATHERING THE RELEVANT
FACTS AND IN MARSHALING THEM INTO A MEANINGFUL PATTERN."  FEDERAL
MARITIME BOARD V. ISBRANDTSEN CO., 356 U.S. 481, 498 (1958).  THE
ADJUDICATION OF THE COMMISSION, IF IT IS FORTHCOMING, WILL BE SUBJECT
TO JUDICIAL REVIEW AND WOULD OBVIATE ANY NECESSITY FOR THE ANTITRUST
COURT TO RELITIGATE THE ISSUES ACTUALLY DISPOSED OF BY THE AGENCY
DECISION.  CF. UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.,AT
353-354; FEDERAL MARITIME BOARD V. ISBRANDTSEN CO., SUPRA, AT 498-499. 
OF COURSE, THE QUESTION OF IMMUNITY, AS SUCH, WILL NOT BE BEFORE THE
AGENCY; BUT IF RICCI'S COMPLAINT IS SUSTAINED, THE IMMUNITY ISSUE WILL
DISSOLVE, WHEREAS IF IT IS REJECTED AND THE CONDUCT OF THE EXCHANGE
WARRANTED BY A VALID MEMBERSHIP RULE, THE COURT WILL BE IN A MUCH
BETTER POSITION TO DETERMINE WHETHER THE ANTITRUST ACTION SHOULD GO
FORWARD.  AFFORDING THE OPPORTUNITY FOR ADMINISTRATIVE ACTION WILL
"PREPARE THE WAY, IF THE LITIGATION SHOULD TAKE ITS ULTIMATE COURSE,
FOR A MORE INFORMED AND PRECISE DETERMINATION BY THE COURT OF THE SCOPE
AND MEANING OF THE STATUTE AS APPLIED TO (THESE) PARTICULAR
CIRCUMSTANCES."  IBID.

III 

MR. JUSTICE MARSHALL'S DISSENT CONCEDES, AS IT MUST, THAT IT IS
ESSENTIAL FOR THE ANTITRUST COURT TO MAKE PROPER ACCOMMODATION "BETWEEN
USUAL ANTITRUST PRINCIPLES AND THE SELF-REGULATORY AND EXCLUSIONARY
POWERS THAT THE EXCHANGES WERE OBVIOUSLY INTENDED TO EXERCISE."  IT
ALSO CONCEDES THAT WHERE THE REGULATORY REGIME IS ADMINISTERED BY AN
AGENCY, THE ANTITRUST COURT WILL STAY ITS HAND TO PERMIT INSTITUTION OF
ADMINISTRATIVE PROCEEDINGS IF THEY ARE "LIKELY TO MAKE A MEANINGFUL
CONTRIBUTION TO THE RESOLUTION OF THIS LAWSUIT."  OUR DOFFERENCES THUS
NARROW TO WHETHER PROCEEDINGS IN THE COMMODITY EXCHANGE COMMISSION
WOULD BE OF SUFFICIENT AID TO JUSTIFY A STAY OF THIS ANTITRUST ACTION. 

THE DISSENT ASSERTS THAT FOR PRESENT PURPOSES THE ONLY RELEVANT
ISSUE IN THE ANTITRUST ACTION IS "WHETHER EITHER THE RULES, OR THEIR
APPLICATION, SERVES A LEGITIMATE SELF-REGULATORY GOAL," THAT THE
COMMISSION HAS NO JURISDICTION TO DETERMINE FACTS RELEVANT TO WHETHER
EXCHANGE RULES ARE CONSISTENT WITH OR ESSENTIAL TO LEGITIMATE SELF
REGULATORY ENDS, AND THAT WE HAVE MISTAKENLY PREMISED OUR OPINION ON
THE EXISTENCE OF SUCH JURISDICTION, WITHOUT WHICH THERE IS NO BASIS FOR
DEFERRING TO AGENCY PROCEEDINGS.  /16/  THIS MISAPPREHENDS OUR OPINION
AND FAILS TO COME TO GRIPS WITH REALITY.  WE MAKE NO CLAIM THAT THE
COMMISSION HAS AUTHORITY TO DECIDE EITHER THE QUESTION OF IMMUNITY AS
SUCH OR THAT ANY RULE OF THE EXCHANGE TAKES PRECEDENCE OVER ANTITRUST
POLICIES.  RATHER, WE SIMPLY RECOGNIZE THAT CONGRESS HAS ESTABLISHED A
SPECIALIZED AGENCY THAT WOULD DETERMINE EITHER THAT A MEMBERSHIP RULE
OF THE EXCHANGE HAS BEEN VIOLATED OR THAT IT HAS BEEN FOLLOWED.  EITHER
JUDGMENT WOULD REQUIRE DETERMINATION OF FACTS AND THE INTERPRETATION
AND APPLICATION OF THE ACT AND EXCHANGE RULES.  AND EITHER
DETERMINATION WILL BE OF GREAT HELP TO THE ANTITRUST COURT IN ARRIVING
AT THE ESSENTIAL ACCOMMODATION BETWEEN THE ANTITRUST AND THE REGULATORY
REGIMES: THE PROBLEM DISAPPEARS ENTIRELY IF IT IS FOUND THAT THERE HAS
BEEN A VIOLATION OF THE RULE; ON THE OTHER HAND, IF IT IS FOUND THAT
THE EXCHANGE HAS MERELY FOLLOWED AND ENFORCED ITS OWN RULES, THE
ANTITRUST COURT WILL BE IN A POSITION TO MAKE A MORE INTELLIGENT AND
SENSITIVE JUDGMENT AS TO WHETHER THE ANTITRUST LAWS WILL PUNISH WHAT AN
APPARENTLY VALID RULE OF THE EXCHANGE PERMITS. 

ACCORDINGLY, THE JUDGMENT IS AFFIRMED. 

    SO ORDERED. 

/1/  PETITIONER ALLEGED IN HIS COMPLAINT THAT WHEN HE WAS INFORMED
THAT SIEGEL TRADING COMPANY CLAIMED TO BE THE OWNER OF HIS MEMBERSHIP,
HE NOTIFIED THE EXCHANGE THAT HE WAS THE OWNER OF THE MEMBERSHIP; THAT
THE TRADING COMPANY WAS INDEBTED TO HIM FOR $18,000 IN BROKERAGE FEES
WHICH OFFSET THE $15,000 HE HAD BORROWED TO ACQUIRE HIS MEMBERSHIP; AND
THAT THE TRADING COMPANY DID NOT HAVE A LIEN ON HIS MEMBERSHIP UNDER
THE RULES OF THE EXCHANGE.  APP. 11. 

/2/  RECOGNIZING THE PUBLIC INTEREST INVOLVED IN "(TRANSACTIONS IN
COMMODITY INVOLVING THE SALE THEREOF FOR FUTURE DELIVERY (FUTURES)" AND
THE BURDEN UPON INTERSTATE COMMERCE IMPOSED BY "SUDDEN OR UNREASONABLE
FLUCTUATIONS IN . . . PRICES," 7 U.S.C. 5, CONGRESS, TO REGULATE
"FUTURES" TRANSACTIONS, PASSED THE "GRAIN FUTURES ACT," 42 STAT. 998,
THE TITLE BEING CHANGED TO THE PRESENT "COMMODITY EXCHANGE ACT" IN
1936, 49 STAT. 1491.  THE CONSTITUTIONALITY OF REGULATING FUTURES
TRADING UNDER THE COMMERCE CLAUSE, ART. I, SEC. 8, CL. 3, OF THE
CONSTITUTION WAS UPHELD IN BOARD OF TRADE OF THE CITY OF CHICAGO V.
OLSEN, 262 U.S. 1 (1923). 

THE FOLLOWING WILL INDICATE THE CONTENT AND SCOPE OF THE ACT:
TRADING IN FUTURES IS TO BE DONE ONLY BY OR THROUGH A MEMBER OF A
"CONTRACT MARKET," 7 U.S.C. 6 AND 6H.  THE COMMODITY EXCHANGE
COMMISSION (COMMISSION) MAY TAKE MEASURES TO PREVENT EXCESSIVE
SPECULATION, ID., SEC. 6A, AND CERTAIN OTHER TRANSACTIONS ARE
PROHIBITED, ID., SECS. 6A AND 6C.  FUTURES COMMISSION MERCHANTS AND
FLOOR BROKERS MUST REGISTER WITH THE SECRETARY OF AGRICULTURE
(SECRETARY) (A MEMBER OF THE COMMISSION, ID., SEC. 2), ID., SECS. 6D
AND 6E, AND TO DO SO, MUST MEET CERTAIN FINANCIAL REQUIREMENTS, ID.,
SEC. 6F.  CUSTOMERS' MONEY, SECURITIES, AND PROPERTY MUST BE HANDLED IN
A PRESCRIBED FASHION, ID., SEC. 6D, AND FUTURES COMMISSION MERCHANTS
AND FLOOR BROKERS MUST MEET REPORTING AND RECORDKEEPING REQUIREMENTS
ESTABLISHED BY THE SECRETARY AND KEEP SUCH BOOKS AND RECORDS OPEN FOR
INSPECTION, ID., SEC. 6G.  SPECIFIED TRANSACTIONS MUST BE REPORTED TO
THE SECRETARY AND BOOKS AND RECORDS OF SAME KEPT, WHICH SHALL BE
SUBJECT TO INSPECTION, ID., SEC. 6I.  TO BE DESIGNATED A "CONTRACT
MARKET" A BOARD OF TRADE MUST MEET CERTAIN CONDITIONS AND REQUIREMENTS,
ID., SEC. 7; AND A CONTRACT MARKET MUST PERFORM CERTAIN DUTIES, ID.,
SEC. 7A.  THE CONTRACT MARKET CAN HAVE ITS DESIGNATION SUSPENDED OR
REVOKED, ID., SECS. 7B AND 8, OR BE SUBJECTED TO CEASE-AND-DESIST
ORDERS, ID., SEC. 13A.  FOR STATED REASONS PERSONS MAY BE EXCLUDED FROM
TRADING ON A CONTRACT MARKET BY THE SECRETARY, ID., SEC. 9, OR BE
SUBJECTED TO A CEASE-AND-DESIST ORDER, ID., SEC. 13B, AND IT IS
UNLAWFUL FOR SUCH PERSONS TO TRADE WHILE BANNED, ID., SEC. 12B. 
CONTRACT MARKETS ARE NOT TO EXCLUDE FROM MEMBERSHIP COOPERATIVE
ASSOCIATIONS OR CORPORATIONS EXCEPT UNDER CERTAIN CONDITIONS, ID., SEC.
10A.  A CONTRACT MARKET MAY HAVE ITS DESIGNATION VACATED AND
SUBSEQUENTLY BE REDESIGNATED, ID., SEC. 11.  THE SECRETARY MAY MAKE
INVESTIGATIONS AND REPORTS, ID., SEC. 12, AND MAY DISCLOSE THE NAMES OF
TRADERS ON COMMODITY MARKETS, ID., SEC. 12-1.  CERTAIN ACTS MAY BE
PUNISHED AS FELONIES OR MISDEMEANORS, ID., SECS. 13, 13-1, AND 13B. 
PERSONS INVOLVED IN VIOLATIONS OF THE ACT OR RULES ISSUED THERETO MAY
BE HELD RESPONSIBLE AS PRINCIPALS, ID., SEC. 13CA).  THE SECRETARY OR
COMMISSION IS NOT REQUIRED TO REPORT MINOR VIOLATIONS OF THE ACT "FOR
PROSECUTION, WHENEVER IT APPEARS THAT THE PUBLIC INTEREST DOES NOT
REQUIRE SUCH ACTION," ID., SEC. 13CB). 

/3/  TITLE 7 U.S.C. 6 PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO DELIVER FOR TRANSMISSION
THROUGH THE MAILS OR IN INTERSTATE COMMERCE BY TELEGRAPH, TELEPHONE,
WIRELESS, OR OTHER MEANS OF COMMUNICATION ANY OFFER TO MAKE OR EXECUTE,
OR ANY CONFIRMATION OF THE EXECUTION OF, OR ANY QUOTATION OR REPORT OF
THE PRICE OF, ANY CONTRACT OF SALE OF COMMODITY FOR FUTURE DELIVERY ON
OR SUBJECT TO THE RULES OF ANY BOARD OF TRADE IN THE UNITED STATES, OR
FOR ANY PERSON TO MAKE OR EXECUTE SUCH CONTRACT OF SALE, WHICH IS OR
MAY BE USED FOR (A) HEDGING ANY TRANSACTION IN INTERSTATE COMMERCE IN
COMMODITY OR THE PRODUCTS OR BY-PRODUCTS THEREOF, OR (B) DETERMINING
THE PRICE BASIS OF ANY SUCH TRANSACTION IN INTERSTATE COMMERCE, OR (C)
DELIVERING COMMODITY SOLD, SHIPPED, OR RECEIVED IN INTERSTATE COMMERCE
FOR THE FULFILLMENT THEREOF, EXCEPT, IN ANY OF THE FOREGOING CASES,
WHERE SUCH CONTRACT IS MADE BY OR THROUGH A MEMBER OF A BOARD OF TRADE
WHICH HAS BEEN DESIGNATED BY THE SECRETARY OF AGRICULTURE AS A
'CONTRACT MARKET,' AS HEREINAFTER PROVIDED IN THIS CHAPTER, AND IF SUCH
CONTRACT IS EVIDENCED BY A RECORD IN WRITING WHICH SHOWS THE DATE, THE
PARTIES TO SUCH CONTRACT AND THEIR ADDRESSES, THE PROPERTY COVERED AND
ITS PRICE, AND THE TERMS OF DELIVERY:  PROVIDED, THAT EACH BOARD MEMBER
SHALL KEEP SUCH RECORD FOR A PERIOD OF THREE YEARS FROM THE DATE
THEREOF, OR FOR A LONGER PERIOD IF THE SECRETARY OF AGRICULTURE SHALL
SO DIRECT, WHICH RECORD SHALL AT ALL TIMES BE OPEN TO THE INSPECTION OF
ANY REPRESENTATIVE OF THE UNITED STATES DEPARTMENT OF AGRICULTURE OR
THE UNITED STATES DEPARTMENT OF JUSTICE." 

TITLE 7 U.S.C. 6H STATES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON-- 

(1) TO CONDUCT ANY OFFICE OR PLACE OF BUSINESS ANYWHERE IN THE
UNITED STATES OR ITS TERRITORIES FOR THE PURPOSE OF SOLICITING OR
ACCEPTING ANY ORDERS FOR THE PURCHASE OR SALE OF ANY COMMODITY FOR
FUTURE DELIVERY, OR FOR MAKING OR OFFERING TO MAKE ANY CONTRACTS FOR
THE PURCHASE OR SALE OF ANY COMMODITY FOR FUTURE DELIVERY, OR FOR
CONDUCTING ANY DEALINGS IN COMMODITIES FOR FUTURE DELIVERY, THAT ARE OR
MAY BE USED FOR 

"(A) HEDGING ANY TRANSACTION IN INTERSTATE COMMERCE IN SUCH
COMMODITY OR THE PRODUCTS OR BYPRODUCTS THEREOF, OR 

"(B) DETERMINING THE PRICE BASIS OF ANY SUCH TRANSACTION IN
INTERSTATE COMMERCE, OR 

"(C) DELIVERING ANY SUCH COMMODITY SOLD, SHIPPED, OR RECEIVED IN
INTERSTATE COMMERCE FOR THE FULFILLMENT THEREOF, 

"IF SUCH ORDERS, CONTRACTS, OR DEALINGS ARE EXECUTED OR CONSUMMATED
OTHERWISE THAN BY OR THROUGH A MEMBER OF A CONTRACT MARKET; OR 

"(2) FALSELY TO REPRESENT SUCH PERSON TO BE A MEMBER OF A CONTRACT
MARKET, OR THE REPRESENTATIVE OR AGENT OF SUCH MEMBER, OR TO BE A
FUTURES COMMISSION MERCHANT REGISTERED UNDER THIS CHAPTER, OR THE AGENT
OF SUCH REGISTERED FUTURES COMMISSION MERCHANT, IN SOLICITING OR
HANDLING ANY ORDER OR CONTRACT FOR THE PURCHASE OR SALE OF ANY
COMMODITY IN INTERSTATE COMMERCE OR FUR FUTURE DELIVERY, OR FALSELY TO
REPRESENT IN CONNECTION WITH THE HANDLING OF ANY SUCH ORDER OR CONTRACT
THAT THE SAME IS TO BE OR HAS BEEN EXECUTED ON, OR BY OR THROUGH ANY
MEMBER OF, ANY CONTRACT MARKET." 

/4/  TITLE 7 U.S.C. 7A PROVIDES: 

"EACH CONTRACT MARKET SHALL-- 

"(8) ENFORCE ALL BYLAWS, RULES, REGULATIONS, AND RESOLUTIONS, MADE
OR ISSUED BY IT OR BY THE GOVERNING BOARD THEREOF OR ANY COMMITTEE,
WHICH RELATE TO TERMS AND CONDITIONS IN CONTRACTS OF SALE TO BE
EXECUTED ON OR SUBJECT TO THE RULES OF SUCH CONTRACT MARKET OR RELATE
TO OTHER TRADING REQUIREMENTS, AND WHICH HAVE NOT BEEN DISAPPROVED BY
THE SECRETARY OF AGRICULTURE PURSUANT TO PARAGRAPH (7) OF SECTION 12A
OF THIS TITLE; AND REVOKE AND NOT ENFORCE ANY SUCH BYLAW, RULE,
REGULATION, OR RESOLUTION, MADE, ISSUED, OR PROPOSED BY IT OR BY THE
GOVERNING BOARD THEREOF OR ANY COMMITTEE, WHICH HAS BEEN SO DISAPPROVED
. . . . " 

DISAPPROVAL BY THE SECRETARY IS TO BE PURSUANT TO 7 U.S.C. 12A,
WHICH PROVIDES: 

"THE SECRETARY OF AGRICULTURE IS AUTHORIZED-- 

"(7) TO DISAPPROVE ANY BYLAW, RULE, REGULATION, OR RESOLUTION MADE,
ISSUED OR PROPOSED BY A CONTRACT MARKET OR BY THE GOVERNING BOARD
THEREOF OR ANY COMMITTEE WHICH RELATES TO TERMS AND CONDITIONS IN
CONTRACTS OF SALE TO BE EXECUTED ON OR SUBJECT TO THE RULES OF SUCH
CONTRACT MARKET OR RELATES TO OTHER TRADING REQUIREMENTS, WHEN HE FINDS
THAT SUCH BYLAW, RULE, REGULATION, OR RESOLUTION VIOLATES OR WILL
VIOLATE ANY OF THE PROVISIONS OF THIS CHAPTER, OR ANY OF THE RULES,
REGULATIONS, OR ORDERS OF THE SECRETARY OF AGRICULTURE OR THE
COMMISSION THEREUNDER." 

/5/  TITLE 7 U.S.C. 7A STATES: 

"EACH CONTRACT MARKET SHALL--

        .          .     .          . 

"(9) ENFORCE ALL BYLAWS, RULES, REGULATIONS, AND RESOLUTIONS MADE OR
ISSUED BY IT OR BY THE GOVERNING BOARD THEREOF OR BY ANY COMMITTEE,
WHICH PROVIDE MINIMUM FINANCIAL STANDARDS AND RELATED REPORTING
REQUIREMENTS FOR FUTURES COMMISSION MERCHANTS WHO ARE MEMBERS OF SUCH
CONTRACT MARKET, AND WHICH HAVE BEEN APPROVED BY THE SECRETARY OF
AGRICULTURE." 

/6/  THE COMMISSION IS COMPOSED OF THE SECRETARIES OF AGRICULTURE AND
COMMERCE AND THE ATTORNEY GENERAL, OR THEIR DESIGNEES, THE SECRETARY OF
AGRICULTURE OR HIS DESIGNEE SERVING AS CHAIRMAN, 7 U.S.C. 2. 

/7/  TITLE 7 U.S.C. 8(A) PROVIDES: 

"THE COMMISSION IS AUTHORIZED TO SUSPEND FOR A PERIOD NOT TO EXCEED
SIX MONTHS OR TO REVOKE THE DESIGNATION OF ANY BOARD OF TRADE AS A
'CONTRACT MARKET' UPON A SHOWING THAT SUCH BOARD OF TRADE IS NOT
ENFORCING OR HAS NOT ENFORCED ITS RULES OF GOVERNMENT MADE A CONDITION
OF ITS DESIGNATION AS SET FORTH IN SECTION 7 OF THIS TITLE OR THAT SUCH
BOARD OF TRADE, OR ANY DIRECTOR, OFFICER, AGENT, OR EMPLOYEE THEREOF,
OTHERWISE IS VIOLATING OR HAS VIOLATED ANY OF THE PROVISIONS OF THIS
CHAPTER OR ANY OF THE RULES, REGULATIONS, OR ORDERS OF THE SECRETARY OF
AGRICULTURE OR THE COMMISSION THEREUNDER.  SUCH SUSPENSION OR
REVOCATION SHALL ONLY BE AFTER A NOTICE TO THE OFFICERS OF THE BOARD OF
TRADE AFFECTED AND UPON A HEARING:  PROVIDED, THAT SUCH SUSPENSION OR
REVOCATION SHALL BE FINAL AND CONCLUSIVE, UNLESS WITHIN FIFTEEN DAYS
AFTER SUCH SUSPENSION OR REVOCATION BY THE COMMISSION SUCH BOARD OF
TRADE APPEALS TO THE COURT OF APPEALS FOR THE CIRCUIT IN WHICH IT HAS
ITS PRINCIPAL PLACE OF BUSINESS, BY FILING WITH THE CLERK OF SUCH COURT
A WRITTEN PETITION PRAYING THAT THE ORDER OF THE COMMISSION BE SET
ASIDE OR MODIFIED IN THE MANNER STATED IN THE PETITION, TOGETHER WITH A
BOND IN SUCH SUM AS THE COURT MAY DETERMINE, CONDITIONED THAT SUCH
BOARD OF TRADE WILL PAY THE COSTS OF THE PROCEEDINGS IF THE COURT SO
DIRECTS.  THE CLERK OF THE COURT IN WHICH SUCH A PETITION IS FILED
SHALL IMMEDIATELY CAUSE A COPY THEREOF TO BE DELIVERED TO THE SECRETARY
OF AGRICULTURE, WHO SHALL THEREUPON NOTIFY THE OTHER MEMBERS OF THE
COMMISSION AND FILE IN THE COURT THE RECORD IN SUCH PROCEEDINGS, AS
PROVIDED IN SECTION 2112 OF TITLE 28.  THE TESTIMONY AND EVIDENCE TAKEN
OR SUBMITTED BEFORE THE COMMISSION, DULY FILED AS AFORESAID AS A PART
OF THE RECORD, SHALL BE CONSIDERED BY THE COURT OF APPEALS AS THE
EVIDENCE IN THE CASE.  THE PROCEEDINGS IN SUCH CASES IN THE COURT OF
APPEALS SHALL BE MADE A PREFERRED CAUSE AND SHALL BE EXPEDITED IN EVERY
WAY.  SUCH A COURT MAY AFFIRM OR SET ASIDE THE ORDER OF THE COMMISSION
SHALL BE MODIFIED OR SET ASIDE BY THE COURT OF APPEALS UNLESS IT IS
SHOWN BY THE BOARD OF TRADE THAT THE ORDER IS UNSUPPORTED BY THE WEIGHT
OF THE EVIDENCE OR WAS ISSUED WITHOUT DUE NOTICE AND A REASONABLE
OPPORTUNITY HAVING BEEN AFFORDED TO SUCH BOARD OF TRADE FOR A HEARING,
OR INFRINGES THE CONSTITUTION OF THE UNITED STATES, OR IS BEYOND THE
JURISDICTION OF THE COMMISSION." 

/8/  TITLE 7 U.S.C. 13A STATES: 

"IF ANY CONTRACT MARKET IS NOT ENFORCING OR HAS NOT ENFORCED ITS
RULES OF GOVERNMENT MADE A CONDITION OF ITS DESIGNATION AS SET FORTH IN
OFFICER, AGENT, OR EMPLOYEE OF ANY CONTRACT MARKET OTHERWISE IS
VIOLATING OR HAS VIOLATED ANY OF THE PROVISIONS OF THIS CHAPTER OR ANY
OF THE RULES, REGULATIONS, OR ORDERS OF THE SECRETARY OF AGRICULTURE OR
THE COMMISSION THEREUNDER, THE COMMISSION MAY, UPON NOTICE AND HEARING
AND SUBJECT TO APPEAL AS IN OTHER CASES PROVIDED FOR IN PARAGRAPH (A)
OF SECTION 8 OF THIS TITLE, MAKE AND ENTER AN ORDER DIRECTING THAT SUCH
CONTRACT MARKET, DIRECTOR, OFFICER, AGENT, OR EMPLOYEE SHALL CEASE AND
DESIST FROM SUCH VIOLATION, AND IF SUCH CONTRACT MARKET, DIRECTOR,
OFFICER, AGENT, OR EMPLOYEE THEREAFTER AND AFTER THE LAPSE OF THE
PERIOD ALLOWED FOR APPEAL OF SUCH ORDER OR AFTER THE AFFIRMANCE OF SUCH
ORDER, SHALL FAIL OR REFUSE TO OBEY OR COMPLY WITH SUCH ORDER, SUCH
CONTRACT MARKET, DIRECTOR, OFFICER, AGENT, OR EMPLOYEE SHALL BE GUILTY
OF A MISDEMEANOR AND, UPON CONVICTION THEREOF, SHALL BE FINED NOT LESS
THAN $500 NOR MORE THAN $10,000 OR IMPRISONED FOR NOT LESS THAN SIX
MONTHS NOR MORE THAN ONE YEAR, OR BOTH.  EACH DAY DURING WHICH SUCH
FAILURE OR REFUSAL TO OBEY SUCH ORDER CONTINUES SHALL BE DEEMED A
SEPARATE OFFENSE." 

/9/  TITLE 17 CFR 0.53 PROVIDES: 

"(A) APPLICATION TO INSTITUTE PROCEEDINGS.  ANY INTERESTED PERSON
HAVING ANY INFORMATION OF ANY VIOLATION OF THE ACT, OR OF ANY OF THE
ORDERS OR REGULATIONS PROMULGATED THEREUNDER, BY ANY BOARD OF TRADE OR
BY ANY DIRECTOR, OFFICER, AGENT, OR EMPLOYEE THEREOF MAY FILE WITH THE
ACT ADMINISTRATOR (SEE INFRA) AN APPLICATION REQUESTING THE INSTITUTION
OF SUCH PROCEEDING AS IS AUTHORIZED UNDER THE ACT.  SUCH APPLICATION
SHALL BE IN WRITING, SIGNED BY OR ON BEHALF OF THE APPLICANT, AND SHALL
INCLUDE A SHORT AND SIMPLE STATEMENT OF THE FACTS CONSTITUTING THE
ALLEGED VIOLATION AND THE NAME AND ADDRESS OF THE APPLICANT AND THE
NAME AND ADDRESS OF THE PERSON AGAINST WHOM THE APPLICANT COMPLAINS." 
(THE "ACT ADMINISTRATOR," WHO "ADMINISTERS AND IS RESPONSIBLE FOR THE
ENFORCEMENT OF THE (ACT)," ID., SEC. 140.1, IS THE ADMINISTRATOR OF THE
COMMODITY EXCHANGE AUTHORITY, UNITED STATES DEPARTMENT OF AGRICULTURE,
ID., SEC. 0.52 (R).) 

"(B) STATUS OF APPLICANT.  THE PERSON FILING AN APPLICATION AS
DESCRIBED IN PARAGRAPH (A) OF THIS SECTION SHALL HAVE NO LEGAL STATUS
IN THE PROCEEDING WHICH MAY BE INSTITUTED AS A RESULT OF THE
APPLICATION, EXCEPT WHERE THE APPLICANT MAY BE PERMITTED TO INTERVENE
THEREIN, IN THE MANNER PROVIDED IN THIS SUBPART, OR MAY BE CALLED AS A
WITNESS, AND THE APPLICANT'S IDENTITY SHALL NOT BE DIVULGED BY ANY
EMPLOYEE OF THE DEPARTMENT, EXCEPT WITH THE APPLICANT'S PRIOR CONSENT
OR UPON COURT ORDER. 

"(C) WHO MAY INSTITUTE.  IF, AFTER INVESTIGATION (BY REGIONAL
OFFICES OF THE COMMODITY EXCHANGE AUTHORITIES, ID., SEC. 140.1(D)) OF
THE MATTERS COMPLAINED OF IN THE APPLICATION DESCRIBED IN PARAGRAPH (A)
OF THIS SECTION, OR AFTER INVESTIGATION MADE ON ITS OWN MOTION, THE
COMMISSION HAS REASON TO BELIEVE THAT ANY BOARD OF TRADE OR ANY
DIRECTOR, OFFICER, AGENT, OR EMPLOYEE THEREOF HAS VIOLATED OR IS
VIOLATING ANY OF THE PROVISIONS OF THE ACT, OR OF ANY OF THE
REGULATIONS PROMULGATED THEREUNDER, THE COMMISSION WILL INSTITUTE AN
APPROPRIATE PROCEEDING:  PROVIDED, THAT IN ANY CASE, EXCEPT ONE OF
WILLFULLNESS OR ONE IN WHICH THE PUBLIC HEALTH, INTEREST OR SAFETY
OTHERWISE REQUIRES, PRIOR TO THE INSTITUTION OF A PROCEEDING FOR THE
SUSPENSION OR REVOCATION OF ANY DESIGNATION OF A CONTRACT MARKET, FACTS
OR CONDITIONS WHICH MAY WARRANT SUCH ACTION SHALL BE CALLED TO THE
ATTENTION OF THE MARKET IN WRITING AND SUCH MARKET SHALL BE ACCORDED
OPPORTUNITY TO DEMONSTRATE OR ACHIEVE COMPLIANCE WITH ALL LAWFUL
REQUIREMENTS.  PROCEEDINGS WILL BE INSTITUTED ONLY UPON COMPLAINTS
ISSUED BY THE COMMISSION AND WILL NOT BE INSTITUTED UPON PLEADINGS
FILED BY PRIVATE PERSONS." 

SHOULD THE COMMISSION INSTITUTE PROCEEDINGS AFTER INVESTIGATION,
IBID., UNLESS THE RESPONDENT IS ALLOWED BY THE COMMISSION TO CONSENT TO
AN ORDER, ID., SEC. 0.54, PROCEEDINGS ARE HELD BEFORE A REFEREE FROM
THE DEPARTMENT OF AGRICULTURE, ID., SECS. 0.52(P) AND (S) AND 0.55 ET
SEQ., AN ORAL HEARING BEING GRANTED ON REQUEST, ID., SEC. 0.61.  THE
COMMISSION PREPARES ITS ORDER BASED ON CONSIDERATION OF THE RECORD OF
THE PROCEEDINGS, INCLUDING A REPORT PREPARED BY THE REFEREE, ID., SECS.
0.66, 0.68, AND 0.70, ORAL ARGUMENT BEING HELD BEFORE THE COMMISSION IN
CERTAIN INSTANCES, ID., SEC. 0.69. 

/10/  TITLE 17 CFR 0.58 STATES: 

"AT ANY TIME AFTER THE INSTITUTION OF A PROCEEDING, AND BEFORE IT
HAS BEEN SUBMITTED TO THE COMMISSION FOR FINAL CONSIDERATION, THE
COMMISSION OR THE REFEREE MAY, UPON PETITION IN WRITING AND FOR GOOD
CAUSE SHOWN, PERMIT ANY PERSON TO INTERVENE THEREIN.  THE PETITION
SHALL STATE WITH PRECISENESS AND PARTICULARITY:  (A) THE PETITIONER'S
RELATIONSHIP TO THE MATTERS INVOLVED IN THE PROCEEDING, (B) THE NATURE
OF THE MATERIAL HE INTENDS TO PRESENT IN EVIDENCE, (C) THE NATURE OF
THE ARGUMENT HE INTENDS TO MAKE, (D) ANY OTHER REASON THAT HE SHOULD BE
ALLOWED TO INTERVENE." 

AS INDICATED IN N. 2, SUPRA, WHILE THE COMMISSION HAS BEEN VESTED
WITH AUTHORITY TO TAKE DISPLINARY ACTION AGAINST A CONTRACT MARKET AND
ITS OFFICERS, AGENTS, AND EMPLOYEES, THE SECRETARY HAS BEEN GIVEN SUCH
AUTHORITY AGAINST PERSONS OTHER THAN CONTRACT MARKETS, INCLUDING
INDIVIDUALS, ASSOCIATIONS, PARTNERSHIPS, CORPORATIONS, AND TRUSTS, 7
U.S.C. 2, AND MAY EITHER EXCLUDE THEM FROM TRADING ON A CONTRACT
MARKET, ID., SEC. 9, OR MAY ISSUE A CEASE-AND-DESIST ORDER, ID., SEC.
13B.  THE REGULATIONS PROVIDING FOR INSTITUTION OF AND INTERVENTION IN
DISCIPLINARY PROCEEDINGS BEFORE THE SECRETARY, 17 CFR 0.3 AND 0.8, ARE
VIRTUALLY IDENTICAL TO THE REGULATIONS FOR COMMISSION PROCEEDINGS
QUOTED ABOVE AND IN N. 9, SUPRA. 

/11/  RULES THE COURT OF APPEALS FOUND RELATED TO "TRADING
REQUIREMENTS" WERE RULE 307, WHICH PROVIDES FOR THE SALE OF MEMBERSHIP,
AND RULE 322, WHICH CONCERNS QUALIFICATIONS TO TRADE. 

RULE 307 PROVIDES: 

"MEMBERSHIP IN THE EXCHANGE IS A PERSONAL PRIVILEGE SUBJECT TO SALE
AND TRANSFER ONLY AS AUTHORIZED HEREIN.  WHEN A MEMBER OR THE LEGAL
REPRESENTATIVE OF A DECEASED OR INCOMPETENT MEMBER DESIRES TO SELL A
MEMBERSHIP, HE SHALL SIGN AN AUTHORIZATION TO TRANSFER IN SUCH FORM AS
SHALL BE PRESCRIBED BY THE BOARD.  AN INDIVIDUAL WHO DESIRES TO
PURCHASE A MEMBERSHIP SHALL NOTIFY THE PRESIDENT TO SUCH EFFECT AND
WHEN AN AGREEMENT WITH A SELLER SHALL HAVE BEEN MADE SHALL SIGN A
CONFIRMATION OF PURCHASE AND SHALL DEPOSIT WITH THE PRESIDENT A
TRANSFER FEE IN THE AMOUNT OF $100.00 AND ALSO A CERTIFIED CHECK,
PAYABLE TO THE EXCHANGE, FOR THE AMOUNT OF THE AGREED PURCHASE PRICE." 

RULE 322 STATES: 

"A MEMBER MAY BE QUALIFIED TO TRADE ON THE SPOT AND TO-ARRIVE CALLS
PROVIDED HE HAS BEEN AUTHORIZED BY A FIRM OR CORPORATION WHICH HAS BEEN
QUALIFIED PURSUANT TO RULE 810 TO ENGAGE IN TRADING ON SAID CALLS.  A
MEMBER MAY BE QUALIFIED TO TRADE ON THE FUTURES CALL PROVIDED HE HAS
BEEN AUTHORIZED BY A FIRM OR CORPORATION WHICH IS A CLEARING MEMBER." 

/12/  SEE, E.G., CARNATION CO. V. PACIFIC WESTBOUND CONFERENCE, 383
U.S. 213 (1966); UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321 (1963); SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S. 341 (1963); PAN
AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U.S. 296 (1963);
CALIFORNIA V. FPC, 369 U.S. 482 (1962); UNITED STATES V. RADIO CORP. OF
AMERICA, 358 U.S. 334 (1959); FAR EAST CONFERENCE V. UNITED STATES, 342
U.S. 570 (1952); GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439 (1945);
UNITED STATES V. BORDEN CO., 308 U.S. 188 (1939); UNITED STATES
NAVIGATION CO. V. CUNARD S.S. CO., 284 U.S. 474 (1932); KEOGH V.
CHICAGO & N.W.R. CO., 260 U.S. 156 (1922). 

/13/  THUS OUR JUDGMENT IS NOT THAT CONGRESS INTENDED THE COMMODITY
EXCHANGE ACT TO BE THE EXCLUSIVE INSTRUMENT FOR THE GOVERNANCE OF THE
EXCHANGE AND ITS MEMBERS.  THE PURPOSE AND STRUCTURE OF THE ACT AND OUR
PAST CASES APPEAR TO FORECLOSE ANY SUCH CONCLUSION.  CARNATION CO. V.
PACIFIC WESTBOUND CONFERENCE, SUPRA; UNITED STATES V. PHILADELPHIA
NATIONAL BANK, SUPRA; SILVER V. NEW YORK STOCK EXCHANGE, SUPRA; PAN
AMERICAN WORLD AIRWAYS V. UNITED STATES, SUPRA; UNITED STATES V. BORDEN
CO., SUPRA.  NOR DO WE FIND THAT CONGRESS INTENDED THE ACT TO CONFER
GENERAL ANTITRUST IMMUNITY ON THE EXCHANGE AND ITS MEMBERS WITH RESPECT
TO THAT AREA OF CONDUCT WITHIN THE ADJUDICATIVE OR RULE-MAKING
AUTHORITY OF THE COMMISSION OR THE SECRETARY.  SEE UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S.,AT 350-354; CALIFORNIA V. FPC,
SUPRA; MARYLAND & VIRGINIA MILK PRODUCERS V. UNITED STATES, 362 U.S.
458 (1960); UNITED STATES V. RADIO CORP. OF AMERICA, 358 U.S.,AT 339
352.  THE ACT CONTAINS NO CATEGORICAL EXEMPTION OF THIS KIND; INDEED,
IT CONFERS NO EXPRESS EXEMPTION AT ALL, NOT EVEN WITH RESPECT TO
CONDUCT THAT IS DIRECTED OR AUTHORIZED BY THE COMMISSION OR THE
SECRETARY.  MOREOVER, THE AREA OF ADMINISTRATIVE AUTHORITY DOES NOT
APPEAR TO BE PARTICULARLY FOCUSED ON COMPETITIVE CONSIDERATIONS; THERE
IS NO EXPRESS PROVISION IN THE ACT DIRECTING ADMINISTRATIVE OFFICIALS
TO CONSIDER THE POLICIES OF THE ANTITRUST LAWS IN CARRYING OUT THEIR
DUTIES AND THERE IS NO OTHER INDICATION THAT CONGRESS INTENDED THE
ADJUDICATIVE AUTHORITY GIVEN THE COMMISSION AND THE SECRETARY TO BE A
COMPLETE SUBSTITUTE FOR JUDICIAL ENFORCEMENT OF THE ANTITRUST LAWS. 
CF. CALIFORNIA V. FPC, SUPRA. 

/14/  MR. JUSTICE MARSHALL'S DISSENT COMPLAINS THAT JURISDICTION OF
THE COMMODITY EXCHANGE COMMISSION IS NOT CLEAR, THAT THE COMMISSION
NEED NOT INSTITUTE PROCEEDINGS, THAT THE COMPLAINANT MUST INTERVENE TO
BECOME A PARTY, AND THAT AGENCY REMEDIES ARE DISCRETIONARY.  BUT
PROCEEDING BY COMPLAINT AND INTERVENTION IS NOT AN UNUSUAL SYSTEM FOR
INVOKING ADMINISTRATIVE ACTION.  AND SURELY IF ADMINISTRATIVE
PROCEEDINGS ARE SOUGHT IN VAIN, THERE WOULD BE NO FURTHER PROBLEM FOR
THE ANTITRUST COURT.  IN ANY EVENT IT SHOULD BE POINTED OUT THAT THE
REGULATIONS REQUIRE INVESTIGATION OF COMPLAINTS AND PROVIDE THAT "THE
COMMISSION WILL INSTITUTE AN APPROPRIATE PROCEEDING" IF INVESTIGATION
REVEALS REASON TO BELIEVE THAT THE ACT IS BEING VIOLATED.  17 CFR
0.53(C).  (EMPHASIS ADDED.)  SEE N. 9, SUPRA. 

/15/  LIKELY ISSUES FOR THE FACTFINDER ARE WHETHER RICCI REVOKED THE
TRANSFER AUTHORIZATION BEFORE OR AFTER HE WAS INFORMED THAT HIS
MEMBERSHIP WAS TRANSFERRED; WHETHER THE TRANSFER AUTHORIZATION WAS
VALID; WHETHER THE TRADING COMPANY HAD A LIEN AGAINST RICCI'S
MEMBERSHIP BECAUSE OF ITS LOAN TO RICCI FOR THE PURCHASE OF A
MEMBERSHIP; WHETHER THE TRADING COMPANY OWED BROKERAGE FEES TO RICCI;
AND, IF SO, WHETHER THESE BROKERAGE FEES COULD BE OFFSET AGAINST THE
DEBT FOR THE MEMBERSHIP PURCHASE. 

/16/  MR. JUSTICE MARSHALL'S DISSENT ALSO ASSERTS THAT BECAUSE
RICCI'S COMPLAINT ASSERTS A CONSPIRACY, THE MATTER AT ISSUE LIES BEYOND
ANY POSSIBLE SELF-REGULATORY GOALS OF THE EXCHANGE.  BUT THIS SIMPLY
IGNORES AND REFUSES TO ACCEPT THE FACTFINDING FUNCTION OF THE
COMMISSION.  IT ALSO FAILS TO RECOGNIZE THAT THE ALLEGATION SIMPLY
CHARACTERIZES AS A CONSPIRACY WHAT MAY BE AN ATTEMPT TO INVOKE THE
MEMBERSHIP RULES OF THE EXCHANGE. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

AS I READ THE COURT'S OPINION, IT PLAINLY DISCLAIMS ANY RESOLUTION
OF THE ISSUE LEFT OPEN IN SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S.
341 (1963)-- NAMELY, THE QUESTION OF WHICH "PARTICULAR INSTANCES OF
EXCHANGE SELF-REGULATION" OCCURRING WITHIN A STATUTORY SCHEME PROVIDING
FOR SELF-REGULATION MAY BE REGARDED AS "JUSTIFIED IN ANSWER TO THE
ASSERTION OF AN ANTITRUST CLAIM" AGAINST THE EXCHANGE AND ITS MEMBERS. 
INDEED, THE SILVER PROBLEM IS NOT BEFORE US.  THE COURT OF APPEALS WAS
CAREFUL TO NOTE THAT IT EXPRESSED "NO OPINION ON ANY ANTITRUST IMMUNITY
THAT MIGHT RESULT FROM ACTION OR INACTION TAKEN BY THE COMMISSION OR
THE SECRETARY OF AGRICULTURE IN THIS CASE."  447 F.2D 713, 720, N. 18. 

THE COURT HOLDS THAT THE COMMODITY EXCHANGE COMMISSION MAY
MATERIALLY AID IN PROPER CONSIDERATION OF PETITIONER'S ANTITRUST CLAIMS
BY DETERMINING WHETHER RESPONDENTS VIOLATED A RULE OF THE EXCHANGE. 
THE COURT'S OPINION SHOULD NOT BE READ TO SUGGEST THAT THE COMMISSION'S
RESOLUTION OF THE DISPUTE EITHER WILL OR WILL NOT FORCLOSE SUBSEQUENT
APPLICATION OF THE ANTITRUST LAWS. 

WITH THIS UNDERSTANDING, I JOIN THE COURT'S OPINION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHILE I CONCUR IN MY BROTHER MARSHALL'S DISSENT, I WISH TO ADD THAT
EVEN IF THE COMMODITY EXCHANGE COMMISSION WERE EMPOWERED TO MAKE A
DETERMINATION REGARDING THE RELIEF SOUGHT BY PETITIONER, IT WOULD
APPEAR TO BE AN ANOMALY TO DIRECT THE PLAINTIFF IN A CIVIL ACTION TO A
FEDERAL SUPERVISING AGENCY FOR A DETERMINATION AS TO WHETHER THE
REGULATIONS WHICH IT IS CHARGED TO ENFORCE HAVE BEEN VIOLATED, WHEN THE
AGENCY HAS, BY ITS INACTION, ALREADY SHOWN EVERY INDICATION OF
SANCTIONING THE ALLEGED VIOLATION.  BY REMANDING, WE ARE REQUIRING THE
PETITIONER TO SEEK FROM THE REGULATORS AN ADMISSION OF THEIR FAILURE TO
REGULATE (OR NEGLIGENCE IN REGULATING).     THE ODDS OF PETITIONER'S
GETTING THE COMMODITY EXCHANGE COMMISSION NOW TO FIND A VIOLATION IN
CONTRADICTION IF ITS PAST INACTION DO NOT, IN MY VIEW, JUSTIFY THE
EXPENSE AND DELAY TO THE PETITIONER.  IN THE INTERESTS OF ORDERLY AND
EFFICIENT JUDICIAL ADMINISTRATION, PARTIES ARE NOT GENERALLY REQUIRED
TO ENGAGE IN FUTILE GESTURES.  THIS INEQUITY IS EVEN MORE PRONOUNCED
SINCE, AS MR. JUSTICE MARSHALL POINTS OUT IN HIS DISSENT, THE COMMODITY
EXCHANGE COMMISSION HAS NEITHER THE AUTHORITY NOR POWER TO MAKE A
DETERMINATION ON THE ISSUES UNDERLYING THE CIVIL ACTION.     MY CONCERN
ABOUT REMITTING PARTIES IN FEDERAL COURT LITIGATION TO STATE COURTS OR
TO FEDERAL ADMINISTRATIVE AGENCIES FOR RESOLUTION OF COLLATERAL
QUESTIONS OF LAW IS STATED IN MY DISSENT IN CLAY V. SUN INSURANCE
OFFICE, 363 U.S. 207, 227-228; SEE ALSO ENGLAND V. LOUISIANA BOARD OF
MEDICAL EXAMINERS, 375 U.S. 411, 429 (CONCURRING OPINION).  THE ROAD
THIS LITIGANT IS NOW REQUIRED TO TRAVEL TO OBTAIN JUSTICE IS EQUALLY
LONG AND EXPENSIVE AND AVAILABLE ONLY TO THOSE WITH LONG PURSES, EVEN
THOUGH HE IS REMITTED ONLY TO A FEDERAL REGULATORY AGENCY. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
STEWART, AND MR. JUSTICE POWELL JOIN, DISSENTING. 

THE MAJORITY ACCURATELY DESCRIBES THE PROVISIONS OF THE COMMODITY
EXCHANGE ACT AND THE FACTS OF THIS CASE.  BUT MY BRETHREN NOWHERE
EXPLAIN WHY THE LOWER COURT SHOULD STAY ITS HAND PENDING ACTION BY AN
AGENCY WHICH IN ALL LIKELIHOOD LACKS THE STATUTORY POWER TO RESOLVE AN
ISSUE IN THE LAWSUIT.  INSTEAD OF CAREFULLY BALANCING THE ADVANTAGES
AND DISADVANTAGES OF DEFERRAL TO THE AGENCY, THE COURT SEEMS TO APPLY A
MECHANICAL TEST WHICH REQUIRES JUDICIAL DEFERENCE DESPITE THE
SUBSTANTIAL PROBABILITY THAT THE AGENCY WILL HAVE NOTHING OF RELEVANCE
TO CONTRIBUTE.  THE PRINCIPLE THAT SHOULD GOVERN THIS CASE CAN BE
STATED QUITE ADEQUATELY IN A SINGLE SENTENCE:  AN AGENCY CANNOT HAVE
PRIMARY JURISDICTION OVER A DISPUTE WHEN IT PROBABLY LACKS JURISDICTION
IN THE FIRST PLACE.  THE MAJORITY SEEMINGLY DEPARTS FROM THIS PRINCIPLE
/1/  AND, HENCE, NEEDLESSLY BIFURCATES AND COMPLICATES A SUIT THAT
COULD READILY BE RESOLVED BY THE DISTRICT COURT.  I MUST THEREFORE
RESPECTFULLY DISSENT. 

        I 

AT THE OUTSET, IT SHOULD BE NOTED THAT THE COMMODITY EXCHANGE ACT
FAILS TO PROVIDE PETITIONER WITH A MEANS BY WHICH HE CAN REQUIRE THE
COMMODITY EXCHANGE COMMISSION OR THE SECRETARY OF AGRICULTURE TO
CONSIDER HIS CASE.  THE ACT PROVIDES THAT "(THE SECRETARY OF
AGRICULTURE IS AUTHORIZED . . . TO DISAPPROVE ANY BYLAW, RULE,
REGULATION, OR RESOLUTION MADE, ISSUED OR PROPOSED BY A CONTRACT
MARKET."  7 U.S.C. 12A(7).  SIMILARLY, "(IF ANY CONTRACT MARKET IS NOT
ENFORCING OR HAS NOT ENFORCED ITS RULES OF GOVERNMENT MADE A CONDITION
OF ITS DESIGNATION . . . THE COMMISSION MAY . . . MAKE AND ENTER AN
ORDER DIRECTING THAT SUCH CONTRACT MARKET . . . SHALL CEASE AND DESIST
FROM SUCH VIOLATION."  7 U.S.C. 13A.  BUT ALTHOUGH THE RELEVANT
REGULATIONS PROVIDE A MEANS BY WHICH A PRIVATE PARTY MAY REPORT
APPARENT VIOLATIONS-- SEE 17 CFR 0.3(A), 0.53(A)-- THE ACT NOWHERE
REQUIRES THE SECRETARY OR THE COMMISSION TO ACT ON THESE REPORTS.  CF.
VACA V. SIPES, 386 U.S. 171, 182 (1967).  ON THE CONTRARY, THE ACT
EXPRESSLY PROVIDES THAT "(NOTHING IN THIS CHAPTER SHALL BE CONSTRUED AS
REQUIRING THE SECRETARY OF AGRICULTURE OR THE COMMISSION TO REPORT
MINOR VIOLATIONS OF THIS CHAPTER FOR PROSECUTION, WHENEVER IT APPEARS
THAT THE PUBLIC INTEREST DOES NOT REQUIRE SUCH ACTION."  7 U.S.C.
13CB). 

MOREOVER, EVEN IF THE SECRETARY OR THE COMMISSION DOES INSTITUTE
PROCEEDINGS AT PETITIONER'S BEHEST, IT IS BY NO MEANS CERTAIN THAT
PETITIONER WILL BE PERMITTED TO PARTICIPATE IN THOSE PROCEEDINGS.  THE
COMMISSION'S RULES STATE THAT "(THE PERSON FILING AN APPLICATION (TO
INSTITUTE PROCEEDINGS) SHALL HAVE NO LEGAL STATUS IN THE PROCEEDING
WHICH MAY BE INSTITUTED AS A RESULT OF THE APPLICATION, EXCEPT WHERE
THE APPLICANT MAY BE PERMITTED TO INTERVENE THEREIN . . . OR MAY BE
CALLED AS A WITNESS."  17 CFR 0.53(B).  SEE ALSO 17 CFR 0.3(B). 
ALTHOUGH COMMISSION RULES PROVIDE FOR THE INTERVENTION OF PRIVATE
PARTIES, THE COMMISSION APPARENTLY HAS UNFETTERED DISCRETION IN
DECIDING WHETHER TO ALLOW INTERVENTION.  SEE 17 CFR 0.58.  SEE ALSO 17
CFR 0.8.  /2/ 

SHOULD THE COMMISSION OR THE SECRETARY NOT ALLOW INTERVENTION IN
THIS CASE, THIS COURT'S DECISION WILL LEAVE THE DISTRICT JUDGE ON THE
HORNS OF A SERIOUS DILEMMA.  NORMALLY, WHEN A COURT STAYS ITS HAND TO
ALLOW AGENCY PROCEEDINGS, THE RESULT OF THOSE PROCEEDINGS MAY NOT BE
COLLATERALLY ATTACKED WHEN THE CASE RETURNS TO THE COURT.  SEE, E.G.,
PORT OF BOSTON MARINE TERMINAL ASSN. V. REDERIAKTIEBOLAGET
TRANSATLANTIC, 400 U.S. 62, 71-72 (1970).  BUT IF THE COMMISSION
DECIDES A MAJOR ISSUE IN THIS LAWSUIT WITHOUT ALLOWING PETITIONER TO
INTERVENE, FAILUTE TO PERMIT COLLATERAL ATTACK WOULD RESULT IN
PETITIONER'S ANTITRUST CASE BEING RESOLVED AGAINST HIM WITHOUT HIS
PARTICIPATION.  ON THE OTHER HAND, IF THE DISTRICT COURT UNDERTAKES A
DE NOVO RECONSIDERATION OF THE ISSUES SUBMITTED TO THE COMMISSION, THE
COMMISSION'S DECISION, TOGETHER WITH THE CONCOMITANT DELAY, WILL BE FOR
NAUGHT. 

        II 

THE COURT, THEN, REMANDS PETITIONER TO A PROCEDURE WHICH HE HAS NO
POWER TO INVOKE, IN WHICH HE HAS NO RIGHT TO PARTICIPATE IF IT IS
INVOKED, AND WHICH CANNOT PROVIDE THE REMEDY HE SEEKS EVEN IF HE IS
ALLOWED TO PARTICIPATE.  /3/  YET ALL THIS MIGHT BE JUSTIFIABLE IF
EITHER THE COMMISSION OR THE SECRETARY WERE LIKELY TO MAKE A MEANINGFUL
CONTRIBUTION TO THE RESOLUTION OF THIS LAWSUIT.  WE HAVE HELD THAT
"(WHEN THERE IS A BASIS FOR JUDICIAL ACTION, INDEPENDENT OF AGENCY
PROCEEDINGS, COURTS MAY ROUTE THE THRESHOLD DECISION AS TO CERTAIN
ISSUES TO THE AGENCY CHARGED WITH PRIMARY RESPONSIBILITY FOR
GOVERNMENTAL SUPERVISION OR CONTROL OF THE PARTICULAR INDUSTRY OR
ACTIVITY INVOLVED."  ID., AT 68.  THE REASON FOR THIS POLICY IS SELF
EVIDENT:  "IN CASES RAISING ISSUES OF FACT NOT WITHIN THE CONVENTIONAL
EXPERIENCE OF JUDGES OR CASES REQUIRING THE EXERCISE OF ADMINISTRATIVE
DISCRETION, AGENCIES CREATED BY CONGRESS FOR REGULATING THE SUBJECT
MATTER SHOULD NOT BE PASSED OVER."  FAR EAST CONFERENCE V. UNITED
STATES, 342 U.S. 570, 574 (1952). 

THUS, IF THE COMMODITY EXCHANGE COMMISSION HAD JURISDICTION OVER
SOME ASPECT OF THIS SUIT AND SPECIAL EXPERTISE IN THE AREA OF ITS
JURISDICTION, A CASE COULD, PERHAPS, BE MADE FOR AWAITING ITS
DECISION.  FOR EXAMPLE, IF THE COMMISSION HAD BEEN GIVEN THE POWER TO
GRANT GENERAL IMMUNITY TO ANTITRUST VIOLATORS, SOUND JUDICIAL
ADMINISTRATION WOULD REQUIRE CONSULTATION WITH IT BEFORE PROCEEDING
WITH THE ANTITRUST SUIT.  BUT, AS THE MAJORITY ITSELF RECOGNIZES, THERE
IS NO INDICATION THAT CONGRESS INTENDED TO GRANT THE COMMISSION ANY
SUCH POWER.  AS THIS COURT HELD IN CARNATION CO. V. PACIFIC WESTBOUND
CONFERENCE, 383 U.S. 213, 218 (1966), "(WE HAVE LONG RECOGNIZED THAT
THE ANTITRUST LAWS REPRESENT A FUNDAMENTAL NATIONAL ECONOMIC POLICY AND
HAVE THEREFORE CONCLUDED THAT WE CANNOT LIGHTLY ASSUME THAT THE
ENACTMENT OF A SPECIAL REGULATORY SCHEME FOR PARTICULAR ASPECTS OF AN
INDUSTRY WAS INTENDED TO RENDER THE MORE GENERAL PROVISIONS OF THE
ANTITRUST LAWS WHOLLY INAPPLICABLE TO THAT INDUSTRY."  IN PRACTICE,
THIS PRINCIPLE HAS MEANT THAT "(REPEALS OF THE ANTITRUST LAWS BY
IMPLICATION FROM A REGULATORY STATUTE ARE STRONGLY DISFAVORED, AND HAVE
ONLY BEEN FOUND IN CASES OF PLAIN REPUGNANCY BETWEEN THE ANTITRUST AND
REGULATORY PROVISIONS."  UNITED STATES V. PHILADELPHIA NATIONAL BANK,
374 U.S. 321, 350-351 (1963) (FOOTNOTES OMITTED).  SUCH REPUGNANCY HAS
BEEN FOUND TO EXIST ONLY IN THOSE RARE CASES WHERE REGULATION OF THE
INDUSTRY IS PERVASIVE AND CONGRESS PLAINLY INTENDED TO SUBSTITUTE
GOVERNMENT SUPERVISION FOR COMPETITION.  SEE, E.G., PAN AMERICAN WORLD
AIRWAYS V. UNITED STATES, 371 U.S. 296 (1963).  CF. UNITED STATES V.
RADIO CORP. OF AMERICA, 358 U.S. 334 (1959). 

OBVIOUSLY, CONGRESS HAS NOT GRANTED THE COMMISSION THE SORT OF
PERVASIVE POWER OVER COMMODITY EXCHANGES THAT WOULD GIVE RISE TO
ANTITRUST EXEMPTION.  ON THE CONTRARY, ALTHOUGH THE COMMISSION AND THE
SECRETARY HAVE SOME GENERAL POLICING DUTIES, DAY-TO-DAY REGULATION HAS
BEEN LARGELY LEFT TO THE INDUSTRY ITSELF.  WHERE, AS HERE, THE INDUSTRY
IS GIVEN THE POWER TO CONTROL ITS OWN AFFAIRS, IT IS PARTICULARLY
IMPORTANT TO MAKE CERTAIN THAT THIS POWER IS NOT ABUSED FOR THE PURPOSE
OF ELIMINATING COMPETITION.  CF. SILVER V. NEW YORK STOCK EXCHANGE, 373
U.S. 341 (1963). 

THE MAJORITY CANNOT RELY, THEN, ON THE COMMISSION'S GENERAL POWER TO
IMMUNIZE ANTITRUST VIOLATIONS.  ITS ARGUMENT, AS I UNDERSTAND IT, IS
MORE SUBTLE AND, AT THE SAME TIME, MORE ATTENUATED.  AS WE RECOGNIZED
IN SILVER V. NEW YORK STOCK EXCHANGE, SUPRA, THE VERY PURPOSE OF AN
EXCHANGE IS TO EXCLUDE NONMEMBERS FROM PARTICIPATION IN TRADING.  WERE
IT NOT FOR THE LEGISLATIVE AUTHORIZATION OF SUCH EXCHANGES, THEY WOULD
CONSTITUTE GROUP BOYCOTTS THAT ARE PER SE VIOLATIONS OF THE SHERMAN
ACT.  SEE, E.G., KLOR'S, INC. V. BROADWAY-HALE STORES, 359 U.S. 207
(1959).  THUS, ALTHOUGH CONGRESS CANNOT BE TAKEN TO HAVE GRANTED TOTAL
ANTITRUST IMMUNITY TO TRADING EXCHANGES, SOME ACCOMMODATION MUST BE
REACHED BETWEEN USUAL ANTITRUST PRINCIPLES AND THE SELF-REGULATORY AND
EXCLUSIONARY POWERS THAT THE EXCHANGES WERE OBVIOUSLY INTENDED TO
EXERCISE.  IN SILVER, THE COURT REACHED SUCH AN ACCOMMODATION BY
HOLDING THAT "EXCHANGE SELF-REGULATION IS TO BE REGARDED AS JUSTIFIED
IN RESPONSE TO ANTITRUST CHARGES ONLY TO THE EXTENT NECESSARY TO
PROTECT THE ACHIEVEMENT OF THE AIMS OF THE SECURITIES EXCHANGE ACT." 
373 U.S.,AT 361.  THUS, IF AN EXCHANGE RULE SERVES A VALID SELF
REGULATORY PURPOSE, THE MERE FACT THAT IT EXCLUDES SOME INDIVIDUALS
FROM COMPETITION DOES NOT MEAN THAT AN ANTITRUST VIOLATION HAS BEEN
MADE OUT.  BUT WHERE, AS IN SILVER ITSELF, THE RULE FAILS TO SERVE ANY
LEGITIMATE SELF-REGULATORY GOAL, ITS EXCLUSIONARY EFFECT CAN LAY THE
PREDICATE FOR A SHERMAN ACT VIOLATION. 

APPLYING SILVER TO THE FACTS OF THIS CASE, THE MAJORITY ARGUES THAT
THE COMMISSION HAS PRIMARY JURISDICTION TO DETERMINE FACTS RELEVANT TO
THE QUESTION WHETHER THE CHICAGO MERCANTILE EXCHANGE'S RULES AND ITS
APPLICATION OF THOSE RULES ARE IN CONFORMITY WITH THE SELF-REGULATORY
PURPOSES OF THE COMMODITY EXCHANGE ACT.  SUPERFICIALLY, AT LEAST, THAT
ARGUMENT HAS CONSIDERABLE FORCE.  IT IS MARRED, HOWEVER, BY TWO FLAWS
WHICH, IN MY VIEW, MAKE IT ULTIMATELY FALLACIOUS. 

FIRST, IT IS IMPORTANT TO NOTE THAT PETITIONER'S COMPLAINT DOES NOT
MERELY ALLEGE THAT HE HAS BEEN EXCLUDED FROM TRADING OR THAT AN
EXCHANGE RULE HAS BEEN BROKEN.  RATHER, HE MAINTAINS THAT THE EXCHANGE
AND CERTAIN OF ITS MEMBERS ENTERED A DELIBERATE CONSPIRACY AGAINST HIM
AND THAT THIS WAS DONE "MALICIOUSLY, WILFULLY, KNOWINGLY, UNLAWFULLY
AND WITHOUT JUST CAUSE OR PROVOCATION, WITH THE UNLAWFUL AND ILLEGAL
INTENT, PURPOSE AND OBJECT OF RESTRAINING AND PREVENTING PLAINTIFF FROM
EXERCISING AN ESSENTIAL AND NECESSARY PART OF HIT LAWFUL TRADE OR
BUSINESS IN INTERSTATE COMMERCE."  WHATEVER THE LEGITIMATE SELF
REGULATORY GOALS OF THE CHICAGO MERCANTILE EXCHANGE, I CANNOT BELIEVE
THAT THEY INCLUDE THE DELIBERATE AND MALICIOUS SUPPRESSION OF
COMPETITION.  SURELY, THE COURTS DO NOT NEED THE COMMODITY EXCHANGE
COMMISSION TO TELL THEM THAT SUCH CONDUCT IS ANTITHETICAL TO THE
PURPOSES OF THE COMMODITY EXCHANGE ACT.  WE HAVE HELD THAT PRINCIPLES
OF ADMINISTRATIVE COMITY PRECLUDE COURTS FROM FINDING ANTITRUST
VIOLATIONS "ONLY . . . WHEN THE DEFENDANTS' CONDUCT IS ARGUABLY LAWFUL"
UNDER THE ADMINISTRATIVE SCHEME.  CARNATION CO. V. PACIFIC WESTBOUND
CONFERENCE, 383 U.S. 213, 222 (1966).  I WOULD APPLY THAT PRINCIPLE
HERE AND HOLD THAT DELIBERATE CONSPIRACIES WITH THE SOLE PURPOSE OF
SUPPRESSING COMPETITION ARE NOT "ARGUABLY LAWFUL" UNDER THE COMMODITY
EXCHANGE ACT.  /4/ 

TO BE SURE, IT MAY ULTIMATELY DEVELOP THAT PETITIONER IS UNABLE TO
SUBSTANTIATE ALL OF HIS ALLEGATIONS AND THAT THE ACTIONS OF THE
EXCHANGE ARE LESS SINISTER THAN HE HAS MADE OUT.  PETITIONER MIGHT BE
REQUIRED TO SUBMIT AFFIDAVITS BEFORE TRIAL DEMONSTRATING THAT HIS
ALLEGATIONS OF A DELIBERATE CONSPIRACY ARE FACTUALLY SUPPORTED IN ORDER
TO FORESTALL A REMAND TO THE COMMISSION.  AND IF IT BECOMES CLEAR AT
ANY TIME DURING TRIAL THAT THE CONSPIRACY ALLEGATIONS ARE
INSUBSTANTIAL, THERE WILL THEN BE TIME ENOUGH TO RECONSIDER THE
PROPRIETY OF A DELAY PENDING COMMISSION ACTION.  BUT I WOULD NOT
DEPRIVE PETITIONER OF IMMEDIATE ACCESS TO THE COURTS UNTIL HE HAS HAD
AN OPPORTUNITY TO PROVE THAT THE CASE IS AS CLEAR AS HE SAYS IT IS. 

MOREOVER, EVEN IF PETITIONER'S ALLEGATIONS ARE FOR SOME REASON
INSUFFICIENT TO FORESTALL A REMAND TO THE COMMISSION, I STILL DOUBT
THAT THE COURT OF APPEALS ACTED PROPERLY IN ORDERING A STAY OF THE
LITIGATION.  THE MAJORITY'S POSITION IS PREMISED ON THE ASSUMPTION THAT
THE COMMISSION HAS JURISDICTION TO DETERMINE FACTS RELEVANT TO WHETHER
EXCHANGE RULES, OR THE APPLICATION OF THOSE RULES, IS CONSISTENT WITH
LEGITIMATE SELF-REGULATORY ENDS.  /5/  BUT A CAREFUL EXAMINATION OF THE
ACT MAKES PLAIN THAT THIS ASSUMPTION IS SIMPLY INCORRECT.  /6/  NEITHER
THE AGENCY NOR THE SECRETARY HAS BEEN GRANTED A ROVING COMMISSION TO
OVERSEE THE PROPER FUNCTIONING OF THE VARIOUS EXCHANGES.  RATHER, THE
POWERS CONFERRED IN THE ACT ARE LIMITED AND DISCRETE, AND NONE OF THEM
GRANTS TO THE COMMISSION THE TOOLS NECESSARY FOR RESOLVING ANY ISSUE IN
THIS DISPUTE. 

THE COMMISSION DOES HAVE AUTHORITY TO OVERSEE THE EXCHANGES'
ADMINISTRATION OF THEIR OWN RULES.  7 U.S.C. 7A(8) REQUIRES EXCHANGES
TO "(ENFORCE ALL BYLAWS, RULES, REGULATIONS, AND RESOLUTIONS, MADE OR
ISSUED BY IT OR BY THE GOVERNING BOARD THEREOF OR ANY COMMITTEE, WHICH
RELATE TO . . . TRADING REQUIREMENTS," AND 7 U.S.C. 13A PERMITS THE
COMMISSION TO ISSUE A CEASE-AND-DESIST ORDER "(IF ANY CONTRACT MARKET
IS NOT ENFORCING OR HAS NOT ENFORCED ITS RULES OF GOVERNMENT MADE A
CONDITION OF ITS DESIGNATION AS SET FORTH IN SECTION 7 OF THIS TITLE." 
BUT IT SHOULD BE OBVIOUS THAT THESE PROVISIONS DO NOT AUTHORIZE THE
COMMISSION TO RESOLVE THE SILVER ISSUE.  THE QUOTED SECTIONS PERMIT THE
COMMISSION TO DETERMINE WHETHER THE RULES MADE BY AN EXCHANGE ARE BEING
ENFORCED.  BUT THEY DO NOT PERMIT THE COMMISSION TO DECIDE WHETHER
EITHER THE RULES, OR THEIR APPLICATION, SERVES A LEGITIMATE SELF
REGULATORY GOAL, WHICH IS THE ONLY RELEVANT ISSUE IN THE ANTITRUST
SUIT.  THUS, IT IS ENTIRELY POSSIBLE THAT ALTHOUGH THE CHICAGO
MERCANTILE EXCHANGE HAS RESPECTED ITS OWN RULES TO THE LETTER, THOSE
RULES THEMSELVES ARE IMPERMISSIBLE UNDER THE SHERMAN ACT.  SIMILARLY,
EVEN IF THE RULES ARE FACIALLY PERMISSIBLE, IT IS POSSIBLE THAT, AS
APPLIED IN THIS CASE, THEY RESTRAIN COMPETITION WITHOUT ANY OFFSETTING
SELF-REGULATORY GAIN.  THE MERE FACT THAT AN EXCHANGE IS OBEYING ITS
OWN RULES-- THE ONLY QUESTION THAT 7 U.S.C. 7A(8) AND 13A PERMIT THE
COMMISSION TO ANSWER-- DOES NOT TELL US WHETHER EITHER THE RULES OR
THEIR APPLICATION MEETS THE SILVER TEST. 

THE SECRETARY IS GIVEN SUPPLEMENTARY POWER TO INVALIDATE CERTAIN
EXCHANGE RULES.  BUT THIS POWER, TOO, IS EXTREMELY LIMITED.  TITLE 7
U.S.C. 12A(7) EMPOWERS THE SECRETARY TO "DISAPPROVE ANY BYLAW, RULE,
REGULATION, OR RESOLUTION MADE, ISSUED OR PROPOSED BY A CONTRACT MARKET
. . . WHICH RELATES TO . . . TRADING REQUIREMENTS, WHEN HE FINDS THAT
SUCH BYLAW, RULE, REGULATION, OR RESOLUTION VIOLATES OR WILL VIOLATE
ANY OF THE PROVISIONS OF THIS CHAPTER, OR ANY OF THE RULES,
REGULATIONS, OR ORDERS OF THE SECRETARY OF AGRICULTURE OR THE
COMMISSION THEREUNDER."  THE "CHAPTER" REFERRED TO IS, OF COURSE, THE
COMMODITY EXCHANGE ACT, NOT THE SHERMAN ACT, AND NO PROVISION OF THE
COMMODITY EXCHANGE ACT INCORPORATES SHERMAN ACT PRINCIPLES.  IT FOLLOWS
THAT SEC. 12A(7) DOES NOT EMPOWER THE SECRETARY TO INVALIDATE EXCHANGE
RULES BECAUSE THEY CONFLICT WITH ANTITRUST POLICY. 

MOREOVER, AS NOTED ABOVE, THE RESTRICTIONS PLACED ON THE EXCHANGES
BY THE ACT ARE FAR FROM PERVASIVE, AND THE SECRETARY'S POWER TO
INVALIDATE RULES IS THEREFORE SIMILARLY RESTRICTED.  SURELY, THIS POWER
DOES NOT INCLUDE THE ABILITY TO INVALIDATE ANY RULE THAT FAILS TO SERVE
A SELF-REGULATORY END.  SUCH A READING OF THE ACT WOULD MEAN THAT
CONGRESS THOUGHT IT HAD PROHIBITED EVERYTHING AN EXCHANGE MIGHT DO THAT
WOULD NOT SERVE SELF-REGULATORY PURPOSES-- A READING THAT DEFIES COMMON
SENSE.  THUS, IF THE SECRETARY WERE TO REFUSE TO INVALIDATE THE RULES
INVOLVED IN THIS ACTION, HIS DECISION WOULD ONLY MEAN THAT THOSE RULES
WERE NOT PROHIBITED BY ANY SPECIFIC PROVISION OF THE COMMODITY EXCHANGE
ACT.  THE DECISION COULD IN NO WAY BE TAKEN TO MEAN THAT THE RULE
SERVES ANY USEFUL PURPOSE OR THAT IT MEETS THE SILVER REQUIREMENT.  /7/

        III 

I DO NOT MEAN TO SUGGEST THAT THE COMMISSION'S CONSIDERATION OF THIS
CASE IS CERTAIN TO PROVE TOTALLY USELESS WHEN THE DISTRICT COURT
ULTIMATELY RESUMES ITS DELIBERATIONS.  SHOULD THE SECRETARY INVALIDATE
THE RULES THAT THE COMMISSION RELIES ON, FOR EXAMPLE, HIS ACTION WOULD
MATERIALLY AID PETITIONER, ALTHOUGH HIS CLAIM WOULD STILL NOT BE
CONCLUSIVELY ESTABLISHED SINCE THE EXCHANGE'S ACTIONS MIGHT BE
JUSTIFIED BY A LEGITIMATE REGULATORY PURPOSE, EVEN THOUGH THE RULE
RELIED UPON VIOLATED A PROVISION OF THE ACT.  SIMILARLY, THE COMMISSION
MAY MAKE FINDINGS OF FACT OR STATEMENTS AS TO THE LAW WITHIN AREAS OF
ITS EXPERTISE WHICH THE COURT MIGHT FIND HELPFUL. 

BUT I HAD NOT THOUGHT THAT PETITIONER NEED MEET THE BURDEN OF
SHOWING THAT RESORT TO ADMINISTRATIVE REMEDIES WOULD BE TOTALLY USELESS
BEFORE SECURING ADJUDICATION FROM A COURT.  INDEED, IN VIRTUALLY EVERY
SUIT INVOLVING A REGULATED INDUSTRY, THERE IS SOMETHING OF VALUE THAT
AN ADMINISTRATIVE AGENCY MIGHT CONTRIBUTE IF GIVEN THE OPPORTUNITY. 
BUT WE HAVE NEVER SUGGESTED THAT SUCH SUITS MUST THEREFORE INVARIABLY
BE POSTPONED WHILE THE AGENCY IS CONSULTED. 

IT HAS BEEN ARGUED THAT THE DOCTRINE OF PRIMARY JURISDICTION
INVOLVES A MERE POSTPONEMENT, RATHER THAN RELINQUISHMENT OF JUDICIAL
JURISDICTION.  SEE, E.G., 3 K. DAVIS, ADMINISTRATIVE LAW TREATISE 3-4
(1958).  HOWEVER, THAT OBSERVATION SHOULD NOT BE TAKEN TO MEAN THAT
INVOCATION OF THE DOCTRINE THEREFORE IMPOSES NO COSTS.  ON THE
CONTRARY, IN THESE DAYS OF CROWDED DOCKETS AND LONG COURT DELAYS
COSTS.  ON THE CONTRARY, IN THESE DAYS OF CROWDED DOCKETS AND LONG
COURT DELAYS THE DOCTRINE FREQUENTLY PROLONGS AND COMPLICATES
LITIGATION.  MORE FUNDAMENTALLY, INVOCATION OF THE DOCTRINE DEROGATES
FROM THE PRINCIPLE THAT EXCEPT IN EXTRAORDINARY SITUATIONS, EVERY
CITIZEN IS ENTITLED TO CALL UPON THE JUDICIARY FOR EXPEDITIOUS
VINDICATION OF HIS LEGAL CLAIMS OF RIGHT.  AS WE HAVE SAID IN A
SOMEWHAT DIFFERENT CONTEXT "DUE PROCESS REQUIRES, AT A MINIMUM, THAT
ABSENT A COUNTERVAILING STATE INTEREST OF OVERRIDING SIGNIFICANCE,
PERSONS FORCED TO SETTLE THEIR CLAIMS OF RIGHT AND DUTY THROUGH THE
JUDICIAL PROCESS MUST BE GIVEN A MEANINGFUL OPPORTUNITY TO BE HEARD." 
BODDIE V. CONNECTICUT, 401 U.S. 371, 377 (1971).  AND SURELY THE RIGHT
TO A "MEANINGFUL OPPORTUNITY TO BE HEARD"  COMPREHENDS WITHIN IT THE
RIGHT TO BE HEARD WITHOUT UNREASONABLE DELAY.  THIS PRINCIPLE IS
ESPECIALLY WORTHY OF PROTECTION IN THE ANTITRUST FIELD WHERE IT IS
UNMISTAKABLY CLEAR THAT CONGRESS HAS GIVEN COURTS, RATHER THAN
AGENCIES, THE PRIMARY DUTY TO ACT.  CF. CALIFORNIA V. FPC, 369 U.S.
482, 487-490 (1962). 

TO BE SURE, JUDICIAL DEFERENCE TO AGENCY JURISDICTION REMAINS
IMPORTANT, PARTICULARLY IN THOSE AREAS WHERE THE RESPONSIBILITIES OF
JUDGES AND ADMINISTRATORS MEET AND OVERLAP.  BUT THE PRIMARY
JURISDICTION DOCTRINE, LIKE THE RELATED EXHAUSTION REQUIREMENT, MUST
NOT BE "APPLIED BLINDLY IN EVERY CASE" WITHOUT "AN UNDERSTANDING OF ITS
PURPOSES AND OF THE PARTICULAR ADMINISTRATIVE SCHEME INVOLVED."  MCKART
V. UNITED STATES, 395 U.S. 185, 193, 201 (1969).  WISE USE OF THE
DOCTRINE NECESSITATES A CAREFUL BALANCE OF THE BENEFITS TO BE DERIVED
FROM UTILIZATION OF AGENCY PROCESSES AS AGAINST THE COSTS IN
COMPLICATION AND DELAY.  WHERE THE PLAINTIFF HAS NO MEANS OF INVOKING
AGENCY JURISDICTION, WHERE THE AGENCY RULES DO NOT GUARANTEE THE
PLAINTIFF A MEANS OF PARTICIPATION IN THE ADMINISTRATIVE PROCEEDINGS,
AND WHERE THE LIKELIHOOD OF A MEANINGFUL AGENCY INPUT INTO THE JUDICIAL
PROCESS IS REMOTE, I WOULD STRIKE A BALANCE IN FAVOR OF IMMEDIATE COURT
ACTION.  SINCE THE MAJORITY'S SCALE IS APPARENTLY DIFFERENTLY
CALIBRATED, I MUST RESPECTFULLY DISSENT. 

/1/  THE MAJORITY SUGGESTS THAT THE COURT "NEED NOT FINALLY DECIDE
THE JURISDICTIONAL ISSUE FOR PRESENT PURPOSES."  RATHER, IT HOLDS THAT
THE LIKELIHOOD OF AGENCY JURISDICTION IS SUFFICIENT TO REQUIRE JUDICIAL
ABSTENTION.  THIS APPROACH COULD WELL LEAD TO AN EXTRAORDINARY RESULT. 
SINCE THE COURT EXPRESSLY LEAVES THE JURISDICTIONAL ISSUE OPEN, IT IS
POSSIBLE THAT AT SOME LATER DATE, IT WILL BE HELD THAT THE AGENCY LACKS
JURISDICTION OVER THIS DISPUTE.  IN THAT EVENT, PETITIONER WILL HAVE
BEEN FORCED TO RESORT TO POSSIBLY LENGTHY ADMINISTRATIVE PROCEEDINGS,
ONLY TO BE TOLD AT THEIR CONCLUSION THAT THEY WERE IRRELEVANT TO HIS
CASE.  MY APPROACH IS SOMEWHAT DIFFERENT.  I SUBMIT THAT THE
JURISDICTION OF THE RELEVANT AGENCY IS A THRESHOLD ISSUE IN CASES SUCH
AS THIS AND THAT BEFORE A COURT DEFERS TO AGENCY JUDGMENT, IT SHOULD
AUTHORITATIVELY DETERMINE WHETHER THE AGENCY HAS POWER TO ACT. 

/2/  I DO NOT INTEND TO FORECLOSE THE POSSIBILITY THAT PETITIONER
MIGHT BE ABLE TO INTERVENE UNDER SEC. 6(A) OF THE ADMINISTRATIVE
PROCEDURE ACT, 5 U.S.C. 555(B).  SEE, E.G., AMERICAN COMMUNICATIONS
ASSN. V. UNITED STATES, 298 F.2D 648, 650 (CA2 1962).  PETITIONER'S
ABILITY TO INVOKE THIS PROVISION IS, HOWEVER, PROBLEMATICAL AT BEST. 
CF. EASTON UTILITIES COMM'N V. AEC, 137 U.S.APP.D.C. 359, 362-365, 424
F.2D 847, 850-853 (1970).  SEE GENERALLY SHAPIRO, SOME THOUGHTS ON
INTERVENTION BEFORE COURTS, AGENCIES, AND ARBITRATORS, 81 HARV.L.REV. 
721, 764-767 (1968). 

/3/  ALTHOUGH THE COMMISSION MAY ISSUE CEASE-AND-DESIST ORDERS AND
RECOMMEND CRIMINAL PROSECUTIONS, IT, OF COURSE, LACKS AUTHORITY TO
AWARD TREBLE DAMAGES. 

/4/  THIS POSITION DOES NOT, AS THE MAJORITY ARGUES, "(IGNORE) . . .
THE FACTFINDING FUNCTION OF THE COMMISSION."  RATHER, IT IS PREMISED ON
THE SEEMINGLY OBVIOUS PROPOSITION THAT THERE MUST BE A JURISDICTIONAL
PREDICATE TO SUPPORT AGENCY FACTFINDING.  I CAN FIND NOTHING IN THE
COMMODITY EXCHANGE ACT THAT AUTHORIZES THE COMMISSION TO DETERMINE
WHETHER EXCHANGES AND THEIR MEMBERS ARE ENGAGED IN CONSPIRACIES OR
WHETHER THE ACTIONS TAKEN BY EXCHANGES ARE MOTIVATED BY ANTICOMPETITIVE
PURPOSES.  NOR IS IT CLEAR TO ME WHY SUCH FACTFINDING MIGHT BE MADE IN
THE COURSE OF DETERMINING WHETHER AN EXCHANGE RULE HAD BEEN VIOLATED. 

/5/  BUT CF. N. 1, SUPRA. 

/6/  TO BE SURE, AS THE MAJORITY RECOGNIZES, THE COMMISSION DOES
HAVE FACTFINDING POWER AND, IN THE COURSE OF DETERMINING WHETHER THE
EXCHANGE RULES HAVE BEEN VIOLATE VIOLATED, IT MIGHT EXERCISE THAT POWER
TO RESOLVE THE UNDERLYING FACTS IN DISPUTE.  BUT THE MAJORITY CITES NO
CASES WHERE THE MERE FACTFINDING POWER OF AN AGENCY HAS BEEN USED TO
INVOKE PRIMARY JURISDICTION IN THE ABSENCE OF AN ISSUE OF LAW OR A
MIXED QUESTION OF LAW AND FACT COMMON TO THE AGENCY PROCEEDING AND THE
COURT ACTION.  THE COMMISSION MAY HAVE SPECIAL EXPERTISE THAT WILL AID
IT TO DETERM DETERMINE WHETHER A GIVEN RULE HAS BEEN VIOLATED OR
WHETHER THE RULE IS CONSISTENT WITH THE ACT.  BUT IT HAS NO SPECIAL
ABILITY TO DETERMINE PURE QUESTIONS OF FACT UNRELATED TO THE LEGAL
STANDARD RELEVANT IN THE ANTITRUST SUIT.  ON THE CONTRARY, I HAD
THOUGHT THAT IT WAS OUR COURT SYSTEM-- WITH ITS LONG TRADITION OF JURY
TRIALS, ADVERSARY PROCEEDINGS, AND HIGHLY DEVELOPED EVIDENTIARY
PRINCIPLES-- THAT WAS "EXPERT" IN THE SIMPLE FACTFINDING PROCESS. 

/7/  THE SILVER CASE ITSELF NEATLY ILLUSTRATES THIS FACT.  IN
SILVER, THE RULE IN QUESTION PROVIDED FOR THE TERMINATION OF WIRE
CONNECTIONS WITH EXCHANGE MEMBERS WITHOUT NOTICE OR HEARING.  THIS
COURT HELD THAT THE FAILURE TO PROVIDE NOTICE OR HEARING SERVED NO
LEGITIMATE SELF-REGULATORY GOAL AND THEREFORE HELD THAT AN ANTITRUST
VIOLATION HAD BEEN MADE OUT.  HAD THE SILVER CASE ARISEN IN THE CONTEXT
OF THE COMMODITY EXCHANGE ACT, THE SECRETARY COULD NOT HAVE INVALIDATED
THE EXCHANGE RULE SINCE NO PROVISION OF THE ACT REQUIRES AN EXCHANGE TO
HOLD HEARINGS BEFORE IT TAKES DISCIPLINARY ACTION.  BUT, OF COURSE, THE
SECRETARY'S DECISION NOT TO INVALIDATE THE RULE WOULD IN NO WAY HAVE
CHANGED THE COURT'S ULTIMATE CONCLUSION THAT THE RULE SERVED NO VALID
SELF-REGULATORY PURPOSE.  HENCE, INVOCATION OF THE SECRETARY'S PRIMARY
JURISDICTION WOULD HAVE BEEN A USELESS ACT. 

JEROME H. TORSHEN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS LAWRENCE H. EIGER. 

LEE A. FREEMAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF FOR RESPONDENTS CHICAGO MERCANTILE EXCHANGE ET AL. WAS LEE A.
FREEMAN, JR. MAX CHILL, HERMAN CHILL, AND CHARLES B. BERNSTEIN FILED A
BRIEF FOR RESPONDENTS SIEGEL TRADING CO., INC., ET AL. 

SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL
COMEGYS, SAMUEL HUNTINGTON, AND SEYMOUR H. DUSSMAN FILED A BRIEF FOR
THE UNITED STATES AS AMICUS CURIAE URGING REVERSAL. 
..END :















COUCH V. UNITED STATES, 409 U.S. 322 


       COUCH V. UNITED STATES ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

        NO. 71-889.  ARGUED NOVEMBER 14, 1972-- DECIDED JANUARY 9,

           1973 


PETITIONER CHALLENGES AN INTERNAL REVENUE SERVICE (IRS) SUMMONS
DIRECTING AN ACCOUNTANT, AN INDEPENDENT CONTRACTOR WITH NUMEROUS
CLIENTS, TO PRODUCE BUSINESS RECORDS THAT SHE HAD BEEN GIVING TO HIM
FOR PREPARATION OF HER TAX RETURNS FROM 1955 TO 1968, WHEN THE SUMMONS
WAS ISSUED.  THE DISTRICT COURT AND THE COURT OF APPEALS CONCLUDED THAT
THE PRIVILEGE AGAINST SELF-INCRIMINATION ASSERTED BY PETITIONER WAS NOT
AVAILABLE.  HELD:  ON THE FACTS OF THIS CASE, WHERE PETITIONER HAD
EFFECTIVELY SURRENDERED POSSESSION OF THE RECORDS TO THE ACCOUNTANT,
THERE WAS NO PERSONAL COMPULSION AGAINST PETITIONER TO PRODUCE THE
RECORDS.  THE FIFTH AMENDMENT THEREFORE CONSTITUTES NO BAR TO THEIR
PRODUCTION BY THE ACCOUNTANT, EVEN THOUGH THE IRS TAX INVESTIGATION MAY
ENTAIL POSSIBLE CRIMINAL AS WELL AS CIVIL CONSEQUENCES.  NOR DOES
PETITIONER, WHO WAS AWARE THAT MUCH OF THE INFORMATION IN THE RECORDS
HAD TO BE DISCLOSED IN HER TAX RETURNS, HAVE ANY LEGITIMATE EXPECTATION
OF PRIVACY THAT WOULD BAR PRODUCTION UNDER EITHER THE FOURTH OR FIFTH
AMENDMENT.  PP. 327-336. 

449 F.2D 141, AFFIRMED. 

POWELL, JR., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED. 
BRENNAN, JR., FILED A CONCURRING OPINION, POST, P. 337.  DOUGLAS, J.,
POST, P. 338, AND MARSHALL, J., POST, P. 344, FILED DISSENTING
OPINIONS. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

ON JANUARY 7, 1970, THE GOVERNMENT FILED A PETITION IN THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, PURSUANT TO
26 U.S.C. 7402(B) AND 7604(A), /1/  SEEKING ENFORCEMENT OF AN INTERNAL
REVENUE SUMMONS IN CONNECTION WITH AN INVESTIGATION OF PETITIONER'S TAX
LIABILITY FROM 1964-1968.  THE SUMMONS WAS DIRECTED TO PETITIONER'S
ACCOUNTANT FOR THE PRODUCTION OF: 

"ALL BOOKS, RECORDS, BANK STATEMENTS, CANCELLED CHECKS, DEPOSIT
TICKET COPIES, WORKPAPERS AND ALL OTHER PERTINENT DOCUMENTS PERTAINING
TO THE TAX LIABILITY OF THE ABOVE TAXPAYER."  /2/ 

THE QUESTION IS WHETHER THE TAXPAYER MAY INVOKE HER FIFTH AMENDMENT
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION TO PREVENT THE
PRODUCTION OF HER BUSINESS AND TAX RECORDS IN THE POSSESSION OF HER
ACCOUNTANT.  BOTH THE DISTRICT COURT /3/ AND THE COURT OF APPEALS FOR
THE FOURTH CIRCUIT /4/  HELD THE PRIVILEGE UNAVAILABLE.  WE GRANTED
CERTIORARI, 405 U.S. 1038. 

PETITIONER IS THE SOLE PROPRIETRESS OF A RESTAURANT.  SINCE 1955 SHE
HAD GIVEN BANK STATEMENTS, PAYROLL RECORDS, AND REPORTS OF SALES AND
EXPENDITURES TO HER ACCOUNTANT, HAROLD SHAFFER, FOR THE PURPOSE OF
PREPARING HER INCOME TAX RETURNS.  THE ACCOUNTANT WAS NOT PETITIONER'S
PERSONAL EMPLOYEE BUT AN INDEPENDENT CONTRACTOR WITH HIS OWN OFFICE AND
NUMEROUS OTHER CLIENTS WHO COMPENSATED HIM ON A PIECEWORK BASIS.  WHEN
PETITIONER SURRENDERED POSSESSION OF THE RECORDS TO SHAFER, SHE, OF
COURSE, RETAINED TITLE IN HERSELF. 

DURING THE SUMMER OF 1969, INTERNAL REVENUE AGENT DENNIS GROVES
COMMENCED AN INVESTIGATION OF PETITIONER'S TAX RETURNS.  AFTER
EXAMINING HER BOOKS AND RECORDS IN SHAFFER'S OFFICE WITH HIS
PERMISSION, GROVES FOUND INDICATIONS OF A SUBSTANTIAL UNDERSTATEMENT OF
GROSS INCOME.  GROVES THEREUPON REPORTED THE CASE TO THE INTELLIGENCE
DIVISION OF THE INTERNAL REVENUE SERVICE. 

SPECIAL AGENT JENNINGS OF THE INTELLIGENCE DIVISION NEXT COMMENCED A
JOINT INVESTIGATION WITH GROVES TO DETERMINE PETITIONER'S CORRECT TAX
LIABILITY, THE POSSIBILITY OF INCOME TAX FRAUD AND THE IMPOSITION OF
TAX FRAUD PENALTIES, AND, LASTLY, THE POSSIBILITY OF A RECOMMENDATION
OF A CRIMINAL TAX VIOLATION.  JENNINGS FIRST INTRODUCED HIMSELF TO
PETITIONER, GAVE HER MIRANDA WARNINGS AS REQUIRED BY IRS DIRECTIVE, AND
THEN ISSUED THE SUMMONS TO SHAFFER /5/  AFTER THE LATTER REFUSED TO LET
HIM SEE, REMOVE, OR MICROFILM PETITIONER'S RECORDS. 

WHEN JENNINGS ARRIVED AT SHAFFER'S OFFICE ON SEPTEMBER 2, 1969, THE
RETURN DAY OF THE SUMMONS, TO VIEW THE RECORDS, HE FOUND THAT SHAFFER,
AT PETITIONER'S REQUEST, HAD DELIVERED THE DOCUMENTS TO PETITIONER'S
ATTORNEY.  JENNINGS THEREUPON PETITIONED THE DISTRICT COURT FOR
ENFORCEMENT OF THE SUMMONS, AND PETITIONER INTERVENED, ASSERTING THAT
THE OWNERSHIP OF THE RECORDS WARRANTED A FIFTH AMENDMENT PRIVILEGE TO
BAR THEIR PRODUCTION.  /6/

        I 

IT IS NOW UNDISPUTED THAT A SPECIAL AGENT IS AUTHORIZED, PURSUANT TO
26 U.S.C. 7602, TO ISSUE AN INTERNAL REVENUE SUMMONS IN AID OF A TAX
INVESTIGATION WITH CIVIL AND POSSIBLE CRIMINAL CONSEQUENCES.  /7/  IN
DONALDSON V. UNITED STATES, 400 U.S. 517 (1971), THE COURT UPHELD SUCH
A SUMMONS, NOTING THAT: 

     "CONGRESS CLEARLY HAS AUTHORIZED THE USE OF THE SUMMONS IN

  INVESTIGATING WHAT MAY PROVE TO BE CRIMINAL CONDUCT . . . . THERE

  IS NO STATUTORY SUGGESTION FOR ANY MEANINGFUL LINE OF

  DISTINCTION, FOR CIVIL AS COMPARED WITH CRIMINAL PURPOSES, AT THE

  POINT OF A SPECIAL AGENT'S APPEARANCE . . . . TO DRAW A LINE

  WHERE A SPECIAL AGENT APPEARS WOULD REQUIRE THE SERVICE, IN A

  SITUATION OF SUSPECTED BUT UNDETERMINED FRAUD, TO FORGO EITHER

  THE USE OF THE SUMMONS OR THE POTENTIALITY OF AN ULTIMATE

  RECOMMENDATION FOR PROSECUTION.  WE REFUSE TO DRAW THAT LINE AND

  THUS TO STULTIFY ENFORCEMENT OF FEDERAL LAW."  ID., AT 535-536. 

  /8/ 

THE COURT IN DONALDSON NOTED THAT THE TAXPAYER THERE HAD ATTEMPTED
TO INTERVENE, PURSUANT TO FED. RULE CIV. PROC. 24(A)(2), TO BAR
PRODUCTION OF RECORDS "IN WHICH THE TAXPAYER HAS NO PROPRIETARY
INTEREST OF ANY KIND, WHICH ARE OWNED BY THE THIRD PERSON, WHICH ARE IN
HIS HANDS, AND WHICH RELATE TO THE THIRD PERSON'S BUSINESS TRANSACTIONS
WITH THE TAXPAYER."  ID., AT 523.  THE COURT QUITE PROPERLY CONCLUDED
THAT, UNDER THOSE FACTS, NO ABSOLUTE RIGHT TO INTERVENE EXISTED.  ID.,
AT 530-531.  THE INSTANT CASE, HOWEVER, PRESENTS A DIFFERENT QUESTION. 
HERE PETITIONER DOES OWN THE BUSINESS RECORDS WHICH THE GOVERNMENT
SEEKS TO REVIEW AND THE COURTS BELOW DID PERMIT HER TO INTERVENE.  THE
ESSENTIAL INQUIRY IS WHETHER HER PROPRIETARY INTEREST FURTHER ENABLES
HER TO ASSERT SUCCESSFULLY A PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION TO BAR ENFORCEMENT OF THE SUMMONS AND PRODUCTION OF THE
RECORDS, DESPITE THE FACT THAT THE RECORDS NO LONGER REMAINED IN HER
POSSESSION. 

   II 

THE IMPORTANCE OF PRESERVING INVIOLATE THE PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION HAS OFTEN BEEN STATED BY THIS COURT AND
NEED NOT BE ELABORATED.  COUNSELMAN V. HITCHCOCK, 142 U.S. 547 (1892);
MALLOY V. HOGAN, 378 U.S. 1 (1964); MIRANDA V. ARIZONA, 384 U.S. 436
(1966).  BY ITS VERY NATURE, THE PRIVILEGE IS AN INTIMATE AND PERSONAL
ONE.  IT RESPECTS A PRIVATE INNER SANCTUM OF INDIVIDUAL FEELING AND
THOUGHT AND PROSCRIBES STATE INTRUSION TO EXTRACT SELF-CONDEMNATION. 
HISTORICALLY, THE PRIVILEGE SPRANG FROM AN ABHORRENCE OF GOVERNMENTAL
ASSAULT AGAINST THE SINGLE INDIVIDUAL ACCUSED OF CRIME AND THE
TEMPTATION ON THE PART OF THE STATE TO RESORT TO THE EXPEDIENT OF
COMPELLING INCRIMINATING EVIDENCE FROM ONE'S OWN MOUTH.  UNITED STATES
V. WHITE, 322 U.S. 694, 698 (1944).  THE COURT HAS THOUGHT THE
PRIVILEGE NECESSARY TO PREVENT ANY "RECURRENCE OF THE INQUISITION AND
THE STAR CHAMBER, EVEN IF NOT IN THEIR STARK BRUTALITY," ULLMANN V.
UNITED STATES, 350 U.S. 422, 428 (1956). 

IN MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 55 (1964), THE COURT
ARTICULATED THE POLICIES AND PURPOSES OF THE PRIVILEGE: 

"(OUR UNWILLINGNESS TO SUBJECT THOSE SUSPECTED OF CRIME TO THE CRUEL
TRILEMMA OF SELF-ACCUSATION, PERJURY OR CONTEMPT; OUR PREFERENCE FOR AN
ACCUSATORIAL RATHER THAN AN INQUISITORIAL SYSTEM OF CRIMINAL JUSTICE;
OUR FEAR THAT SELF-INCRIMINATING STATEMENTS WILL BE ELICITED BY
INHUMANE TREATMENT AND ABUSES; OUR SENSE OF FAIR PLAY WHICH DICTATES 'A
FAIR STATE-INDIVIDUAL BALANCE BY REQUIRING THE GOVERNMENT . . . IN ITS
CONTEST WITH THE INDIVIDUAL TO SHOULDER THE ENTIRE LOAD,' . . . OUR
RESPECT FOR THE INVIOLABILITY OF THE HUMAN PERSONALITY AND OF THE RIGHT
OF EACH INDIVIDUAL 'TO A PRIVATE ENCLAVE WHERE HE MAY LEAD A PRIVATE
LIFE' . . . . " 

IT IS IMPORTANT TO REITERATE THAT THE FIFTH AMENDMENT PRIVILEGE IS A
PERSONAL PRIVILEGE:  IT ADHERES BASICALLY TO THE PERSON, NOT TO
INFORMATION THAT MAY INCRIMINATE HIM.  AS MR. JUSTICE HOLMES PUT IT:
"A PARTY IS PRIVILEGED FROM PRODUCING THE EVIDENCE BUT NOT FROM ITS
PRODUCTION."  JOHNSON V. UNITED STATES, 228 U.S. 457, 458 (1913).  THE
CONSTITUTION EXPLICITLY PROHIBITS COMPELLING AN ACCUSED TO BEAR WITNESS
"AGAINST HIMSELF"; IT NECESSARILY DOES NOT PROSCRIBE INCRIMINATING
STATEMENTS ELICITED FROM ANOTHER.  COMPULSION UPON THE PERSON ASSERTING
IT IS AN IMPORTANT ELEMENT OF THE PRIVILEGE, AND "PROHIBITION OF
COMPELLING A MAN . . . TO BE WITNESS AGAINST HIMSELF IS A PROHIBITION
OF THE USE OF PHYSICAL OR MORAL COMPULSION TO EXTORT COMMUNICATIONS
FROM HIM," HOLT V. UNITED STATES, 218 U.S. 245, 252-253 (1910).  IT IS
EXTORTION OF INFORMATION FROM THE ACCUSED HIMSELF THAT OFFENDS OUR
SENSE OF JUSTICE. 

IN THE CASE BEFORE US THE INGREDIENT OF PERSONAL COMPULSION AGAINST
AN ACCUSED IS LACKING.  THE SUMMONS AND THE ORDER OF THE DISTRICT COURT
ENFORCING IT ARE DIRECTED AGAINST THE ACCOUNTANT.  /9/  HE, NOT THE
TAXPAYER, IS THE ONLY ONE COMPELLED TO DO ANYTHING.  AND THE ACCOUNTANT
MAKES NO CLAIM THAT HE MAY TEND TO BE INCRIMINATED BY THE PRODUCTION. 
INQUISITORIAL PRESSURE OR COERCION AGAINST A POTENTIALLY ACCUSED
PERSON, COMPELLING HER, AGAINST HER WILL, TO UTTER SELF-CONDEMNING
WORDS OR PRODUCE INCRIMINATING DOCUMENTS IS ABSENT.  IN THE PRESENT
CASE, NO "SHADOW OF TESTIMONIAL COMPULSION UPON OR ENFORCED
COMMUNICATION BY THE ACCUSED"  IS INVOLVED.  SCHMERBER V. CALIFORNIA,
384 U.S. 757, 765 (1966). 

THE DIVULGENCE OF POTENTIALLY INCRIMINATING EVIDENCE AGAINST
PETITIONER IS NATURALLY UNWELCOME.  BUT PETITIONER'S DISTRESS WOULD BE
NO LESS IF THE DIVULGENCE CAME NOT FROM HER ACCOUNTANT BUT FROM SOME
OTHER THIRD PARTY WITH WHOM SHE WAS CONNECTED AND WHO POSSESSED
SUBSTANTIALLY EQUIVALENT KNOWLEDGE OF HER BUSINESS AFFAIRS.  THE BASIC
COMPLAINT OF PETITIONER STEMS FROM THE FACT OF DIVULGENCE OF THE
POSSIBLY INCRIMINATING INFORMATION, NOT FROM THE MANNER IN WHICH OR THE
PERSON FROM WHOM IT WAS EXTRACTED.  YET SUCH DIVULGENCE, WHERE IT DOES
NOT RESULT FROM COERCION OF THE SUSPECT HERSELF, IS A NECESSARY PART OF
THE PROCESS OF LAW ENFORCEMENT AND TAX INVESTIGATION. 

 III 

PETITIONER'S RELIANCE ON BOYD V. UNITED STATES, 116 U.S. 616 (1886),
IS MISPLACED.  IN BOYD, THE PERSON ASSERTING THE PRIVILEGE WAS IN
POSSESSION OF THE WRITTEN STATEMENTS IN QUESTION.  THE COURT IN BOYD
DID HOLD THAT "ANY FORCIBLE AND COMPULSORY EXTORTION OF A MAN'S OWN
TESTIMONY OR OF HIS PRIVATE PAPERS TO BE USED AS EVIDENCE TO CONVICT
HIM OF CRIME,"  VIOLATED THE FOURTH AND FIFTH AMENDMENTS.  ID., AT
630.  THAT CASE DID NOT, HOWEVER, ADDRESS OF CONTEMPLATE THE DIVERGENCE
OF OWNERSHIP AND POSSESSION, /10/  AND PETITIONER CONCEDES THAT COURT
DECISIONS APPLYING BOYD HAVE LARGELY BEEN IN INSTANCES WHERE POSSESSION
AND OWNERSHIP CONJOINED, /11/  SEE, E.G., HILL V. PHILPOTT, 445 F.2D
144 (CA7 1971); UNITED STATES V. JUDSON, 322 F.2D 460, 63-2 USTC PARA.
9658 (CA9 1963).  /12/  IN BOYD, THE PRODUCTION ORDER WAS DIRECTED
AGAINST THE OWNER OF THE PROPERTY WHO, BY RESPONDING, WOULD HAVE BEEN
FORCED "TO PRODUCE AND AUTHENTICATE ANY PERSONAL DOCUMENTS OR EFFECTS
THAT MIGHT INCRIMINATE HIM."  UNITED STATES V. WHITE, 322 U.S., AT
698.  BUT WE REITERATE THAT IN THE INSTANT CASE THERE WAS NO ENFORCED
COMMUNICATION OF ANY KIND FROM ANY ACCUSED OR POTENTIAL ACCUSED. 

PETITIONER WOULD, IN EFFECT, HAVE US READ BOYD TO MARK OWNERSHIP,
NOT POSSESSION, AS THE BOUNDS OF THE PRIVILEGE, /13/  DESPITE THE FACT
THAT POSSESSION BEARS THE CLOSEST RELATIONSHIP TO THE PERSONAL
COMPULSION FORBIDDEN BY THE FIFTH AMENDMENT.  TO TIE THE PRIVILEGE
AGAINST SELF-INCRIMINATION TO A CONCEPT OF OWNERSHIP WOULD BE TO DRAW A
MEANINGLESS LINE.  IT WOULD HOLD HERE THAT THE BUSINESS RECORDS WHICH
PETITIONER ACTUALLY OWNED WOULD BE PROTECTED IN THE HANDS OF HER
ACCOUNTANT, WHILE BUSINESS INFORMATION COMMUNICATED TO HER ACCOUNTANT
BY LETTER AND CONVERSATIONS IN WHICH THE ACCOUNTANT TOOK NOTES, IN
ADDITION TO THE ACCOUNTANT'S OWN WORKPAPERS AND PHOTOCOPIES OF
PETITIONER'S RECORDS, WOULD NOT BE SUBJECT TO A CLAIM OF PRIVILEGE
SINCE TITLE RESTED IN THE ACCOUNTANT.  SUCH A HOLDING WOULD THUS PLACE
UNNECESSARY EMPHASIS ON THE FORM OF COMMUNICATION TO AN ACCOUNTANT AND
THE ACCOUNTANT'S OWN WORKING METHODS, WHILE DIVERTING THE INQUIRY FROM
THE BASIC PURPOSES OF THE FIFTH AMENDMENT'S PROTECTIONS. 

OTHER PRECEDENTS DEBATED BY THE PARTIES LEND NO SUPPORT TO
PETITIONER'S CONTENTION THAT OWNERSHIP OF DOCUMENTS SHOULD DETERMINE
THE AVAILABILITY OF THE PRIVILEGE.  /14/  IN PERLMAN V. UNITED STATES,
247 U.S. 7 (1918), THE COURT HELD THE PRIVILEGE UNAVAILABLE TO A PARTY
SEEKING TO SUPPRESS THE ADMISSION OF INCRIMINATING DOCUMENTS AND
EXHIBITS BEFORE A GRAND JURY.  THE MOVANT'S EXPECTATIONS OF PRIVACY IN
THE EXHIBITS HAD, ACCORDING TO THE COURT, BEEN DESTROYED WHEN HE
VOLUNTARILY SURRENDERED THE EXHIBITS AS EVIDENCE IN A PATENT
INFRINGEMENT CASE HE HAD EARLIER BROUGHT IN FEDERAL DISTRICT COURT. 
PETITIONER'S CLAIMS OF OWNERSHIP FAILED TO OVERCOME THIS FACT.  THE
COURT NOTED PERTINENTLY:

     "BUT PERLMAN INSISTS THAT HE OWNED THE EXHIBITS AND APPEARS TO

  CONTEND THAT HIS OWNERSHIP EXEMPTED THEM FROM ANY USE BY THE

  GOVERNMENT WITHOUT HIS CONSENT.  THE EXTENT OF THE INSISTENCE IS

  RATHER ELUSIVE OF MEASUREMENT.  IT SEEMS TO BE THAT THE OWNER OF

  PROPERTY MUST BE CONSIDERED AS HAVING A CONSTRUCTIVE POSSESSION

  OF IT WHEREVER IT BE AND IN WHOSESOEVER HANDS IT BE, AND IT IS

  ALWAYS, THEREFORE, IN A KIND OF ASYLUM OF CONSTITUTIONAL

  PRIVILEGE.  AND TO BE OF AVAIL THE CONTENTION MUST BE PUSHED TO

THIS EXTREME.  IT IS OPPOSED, HOWEVER, BY ALL THE CITED CASES. 

  THEY, AS WE HAVE SAID, MAKE THE CRITERION OF IMMUNITY NOT THE

  OWNERSHIP OF PROPERTY BUT THE 'PHYSICAL OR MORAL COMPULSION'

  EXERTED."  ID., AT 15. 

PETITIONER ARGUES, NEVERTHELESS, THAT GRAVE PREJUDICE WILL RESULT
FROM A DENIAL OF HER CLAIM TO EQUATE OWNERSHIP AND THE SCOPE OF THE
PRIVILEGE.  SHE ALLEGES THAT "(IF THE IRS IS ABLE TO REACH HER RECORDS
THE INSTANT THOSE RECORDS LEAVE HER HANDS AND ARE DEPOSITED IN THE
HANDS OF HER RETAINER WHOM SHE WAS HIRED FOR A SPECIAL PURPOSE THEN THE
MEANING OF THE PRIVILEGE IS LOST."  /15/  THAT IS NOT, HOWEVER, THE
IMPORT OF TODAY'S DECISION.  WE DO INDEED BELIEVE THAT ACTUAL
POSSESSION OF DOCUMENTS BEARS THE MOST SIGNIFICANT RELATIONSHIP TO
FIFTH AMENDMENT PROTECTIONS AGAINST GOVERNMENTAL COMPULSIONS UPON THE
INDIVIDUAL ACCUSED OF CRIME.  YET SITUATIONS MAY WELL ARISE WHERE
CONSTRUCTIVE POSSESSION IS SO CLEAR OR THE RELINQUISHMENT OF POSSESSION
IS SO TEMPORARY AND INSIGNIFICANT AS TO LEAVE THE PERSONAL COMPULSIONS
UPON THE ACCUSED SUBSTANTIALLY INTACT.  /16/  BUT THIS IS NOT THE CASE
BEFORE US.  HERE THERE WAS NO MERE FLEETING DIVESTMENT OF POSSESSION:
THE RECORDS HAD BEEN GIVEN TO THIS ACCOUNTANT REGULARLY SINCE 1955 AND
REMAINED IN HIS CONTINUOUS POSSESSION UNTIL THE SUMMER OF 1969 WHEN THE
SUMMONS WAS ISSUED.  /17/  MOREOVER, THE ACCOUNTANT HIMSELF WORKED
NEITHER IN PETITIONER'S OFFICE NOR AS HER EMPLOYEE.  /18/  THE LENGTH
OF HIS POSSESSION OF PETITIONER'S RECORDS AND HIS INDEPENDENT STATUS
CONFIRM THE BELIEF THAT PETITIONER'S DIVESTMENT OF POSSESSION WAS OF
SUCH A CHARACTER AS TO DISQUALIFY HER ENTIRELY AS AN OBJECT OF ANY
IMPERMISSIBLE FIFTH AMENDMENT COMPULSION. 

        IV 

PETITIONER FURTHER ARGUES THAT THE CONFIDENTIAL NATURE OF THE
ACCOUNTANT-CLIENT RELATIONSHIP AND HER RESULTING EXPECTATION OF PRIVACY
IN DELIVERING THE RECORDS PROTECT HER, UNDER THE FOURTH AND FIFTH
AMENDMENTS, FROM THEIR PRODUCTION.  ALTHOUGH NOT IN ITSELF CONTROLLING,
WE NOTE THAT NO CONFIDENTIAL ACCOUNTANT-CLIENT PRIVILEGE EXISTS UNDER
FEDERAL LAW, AND NO STATE-CREATED PRIVILEGE HAS BEEN RECOGNIZED IN
FEDERAL CASES, FALSONE V. UNITED STATES, 205 F.2D 734 (CA5 1953), CERT.
DENIED, 346 U.S. 864; GARIEPY V. UNITED STATES, 189 F.2D 459, 463-464
(CA6 1951); HIMMELFARB V. UNITED STATES, 175 F.2D 924, 939 (CA9 1949),
CERT. DENIED, 338 U.S. 860; OLENDER V. UNITED STATES, 210 F.2D 795, 806
(CA9 1954).  NOR IS THERE JUSTIFICATION FOR SUCH A PRIVILEGE WHERE
RECORDS RELEVANT TO INCOME TAX RETURNS ARE INVOLVED IN A CRIMINAL
INVESTIGATION OR PROSECUTION.  IN BOYD, A PRE-INCOME TAX CASE, THE
COURT SPOKE OF PROTECTION OF PRIVACY, 116 U.S.,AT 630, BUT THERE CAN BE
LITTLE EXPECTATION OF PRIVACY WHERE RECORDS ARE HANDED TO AN
ACCOUNTANT, KNOWING THAT MANDATORY DISCLOSURE OF MUCH OF THE
INFORMATION THEREIN IS REQUIRED IN AN INCOME TAX RETURN.  WHAT
INFORMATION IS NOT DISCLOSED IS LARGELY IN THE ACCOUNTANT'S DISCRETION,
NOT PETITIONER'S.  INDEED, THE ACCOUNTANT HIMSELF RISKS CRIMINAL
PROSECUTION IF HE WILLFULLY ASSISTS IN THE PREPARATION OF A FALSE
RETURN.  26 U.S.C. 7206(2).  HIS OWN NEED FOR SELF-PROTECTION WOULD
OFTEN REQUIRE THE RIGHT TO DISCLOSE THE INFORMATION GIVEN HIM. 
PETITIONER SEEKS EXTENSIONS OF CONSTITUTIONAL PROTECTIONS AGAINST SELF
INCRIMINATION IN THE VERY SITUATION WHERE OBLIGATIONS OF DISCLOSURE
EXIST AND UNDER A SYSTEM LARGELY DEPENDENT UPON HONEST SELF-REPORTING
EVEN TO SURVIVE.  ACCORDINGLY, PETITIONER HERE CANNOT REASONABLY CLAIM,
EITHER FOR FOURTH /19/  OF FIFTH AMENDMENT PURPOSES, AN EXPECTATION OF
PROTECTED PRIVACY OR CONFIDENTIALITY. 

        V 

THE CRITERION FOR FIFTH AMENDMENT IMMUNITY REMAINS NOT THE OWNERSHIP
OF PROPERTY BUT THE "'PHYSICAL OR MORAL COMPULSION' EXERTED."  PERLMAN,
247 U.S.,AT 15.  WE HOLD TODAY THAT NO FOURTH OR FIFTH AMENDMENT CLAIM
CAN PREVAIL WHERE, AS IN THIS CASE, THERE EXISTS NO LEGITIMATE
EXPECTATION OF PRIVACY AND NO SEMBLANCE OF GOVERNMENTAL COMPULSION
AGAINST THE PERSON OF THE ACCUSED.  /20/ IT IS IMPORTANT, IN APPLYING
CONSTITUTIONAL PRINCIPLES, TO INTERPRET THEM IN LIGHT OF THE
FUNDAMENTAL INTERESTS OF PERSONAL LIBERTY THEY WERE MEANT TO SERVE. 
RESPECT FOR THESE PRINCIPLES IS ERODED WHEN THEY LEAP THEIR PROPER
BOUNDS TO INTERFERE WITH THE LEGITIMATE INTEREST OF SOCIETY IN
ENFORCEMENT OF ITS LAWS AND COLLECTION OF THE REVENUES. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              AFFIRMED. 

/1/  SEC. 7402.  JURISDICTION OF DISTRICT COURTS. 

        .          .       .          . 

"(B) TO ENFORCE SUMMONS.  IF ANY PERSON IS SUMMONED UNDER THE
INTERNAL REVENUE LAWS TO APPEAR, TO TESTIFY, OR TO PRODUCE BOOKS,
PAPERS, OR OTHER DATA, THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT IN WHICH SUCH PERSON RESIDES OR MAY BE FOUND SHALL HAVE
JURISDICTION BY APPROPRIATE PROCESS TO COMPEL SUCH ATTENDANCE,
TESTIMONY, OR PRODUCTION OF BOOKS, PAPERS, OR OTHER DATA." 

SEC. 7604.  ENFORCEMENT OF SUMMONS. 

"(A) JURISDICTION OF DISTRICT COURT.  IF ANY PERSON IS SUMMONED
UNDER THE INTERNAL REVENUE LAWS TO APPEAR, TO TESTIFY, OR TO PRODUCE
BOOKS, PAPERS, RECORDS, OR OTHER DATA, THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT IN WHICH SUCH PERSON RESIDES OR IS FOUND SHALL HAVE
JURISDICTION BY APPROPRIATE PROCESS TO COMPEL SUCH ATTENDANCE,
TESTIMONY, OR PRODUCTION OF BOOKS, PAPERS, RECORDS, OR OTHER DATA." 

/2/  APP. 59-60. 

/3/  THE DISTRICT COURT HELD THAT "(SINCE, AT THE TIME THE SUMMONS
WAS SERVED, THE TAXPAYER, LILLIAN V. COUCH, WAS NOT IN POSSESSION OF
THE BOOKS, RECORDS, AND DOCUMENTS DESCRIBED IN THE SUMMONS, SHE MAY NOT
ASSERT ANY FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AS A
BAR TO THE ENFORCEMENT OF THE SUMMONS."  APP. 6, 11.  THE OPINION OF
THE DISTRICT COURT (WD VA.)  IS NOT REPORTED. 

/4/  THE COURT OF APPEALS ALSO NOTED THAT THE ANSWER TO PETITIONER'S
FIFTH AMENDMENT CONTENTIONS LAY IN THE FACT THAT "THE RECORDS WERE NOT
IN THE INTERVENOR'S (TAXPAYER'S) POSSESSION BUT WERE IN THE CUSTODY OF
HER ACCOUNTANT," 449 F.2D 141, 143 (1971). 

/5/  THE SUMMONS, WHICH IS PRINTED IN FULL IN APP. 59-60, WAS ISSUED
ON AUGUST 18, 1969, PURSUANT TO 26 U.S.C. 7602, WHICH PROVIDES: 

EXAMINATION OF BOOKS AND WITNESSES. 

"FOR THE PURPOSE OF ASCERTAINING THE CORRECTNESS OF ANY RETURN,
MAKING A RETURN WHERE NONE HAS BEEN MADE, DETERMINING THE LIABILITY OF
ANY PERSON FOR ANY INTERNAL REVENUE TAX OR THE LIABILITY AT LAW OR IN
EQUITY OF ANY TRANSFEREE OR FIDUCIARY OF ANY PERSON IN RESPECT OF ANY
INTERNAL REVENUE TAX, OR COLLECTING ANY SUCH LIABILITY, THE SECRETARY
OR HIS DELEGATE IS AUTHORIZED-- 

"(1) TO EXAMINE ANY BOOKS, PAPERS, RECORDS, OR OTHER DATA WHICH MAY
BE RELEVANT OR MATERIAL TO SUCH INQUIRY; 

"(2) TO SUMMON THE PERSON LIABLE FOR TAX OR REQUIRED TO PERFORM THE
ACT, OR ANY OFFICER OR EMPLOYEE OF SUCH PERSON, OR ANY PERSON HAVING
POSSESSION, CUSTODY, OR CARE OF BOOKS OF ACCOUNT CONTAINING ENTRIES
RELATING TO THE BUSINESS OF THE PERSON LIABLE FOR TAX OR REQUIRED TO
PERFORM THE ACT, OR ANY OTHER PERSON THE SECRETARY OR HIS DELEGATE MAY
DEEM PROPER, TO APPEAR BEFORE THE SECRETARY OR HIS DELEGATE AT A TIME
AND PLACE NAMED IN THE SUMMONS AND TO PRODUCE SUCH BOOKS, PAPERS,
RECORDS, OR OTHER DATA, AND TO GIVE SUCH TESTIMONY, UNDER OATH, AS MAY
BE RELEVANT OR MATERIAL TO SUCH INQUIRY; AND 

"(3) TO TAKE SUCH TESTIMONY OF THE PERSON CONCERNED, UNDER OATH, AS
MAY BE RELEVANT OR MATERIAL TO SUCH INQUIRY." 

/6/  PETITIONER ALSO CLAIMED THAT ENFORCEMENT OF THE SUMMONS WOULD
VIOLATE HER FOURTH AMENDMENT RIGHT TO BE SECURE FROM UNREASONABLE
SEARCHES AND SEIZURES.  WE AGREE WITH THE GOVERNMENT, HOWEVER, THAT
"THIS CLAIM IS NOT FURTHER ARTICULATED AND DOES NOT APPEAR TO BE
INDEPENDENT OF HER FIFTH AMENDMENT ARGUMENT."  BRIEF FOR UNITED STATES
21-22.  SEE PART IV, INFRA. 

/7/  THERE IS CLEARLY THE JOINT CIVIL AND POSSIBLY CRIMINAL
INVESTIGATORY PURPOSE IN THE INSTANT CASE, SEE SUPRA, AT 324. 

/8/  DONALDSON CAUTIONED ONLY THAT THE SUMMONS BE ISSUED IN GOOD
FAITH AND PRIOR TO A RECOMMENDATION FOR CRIMINAL PROSECUTION.  400
U.S.,AT 536.  NEITHER OF THOSE CONDITIONS IS SUCCESSFULLY CHALLENGED
HERE. 

/9/ TECHNICALLY THE ORDER TO PRODUCE THE RECORDS WAS DIRECTED TO
PETITIONER'S ATTORNEY SINCE, AFTER THE SUMMONS WAS SERVED UPON THE
ACCOUNTANT, HE IGNORED IT AND SURRENDERED THE RECORDS TO THE ATTORNEY. 
BUT CONSTITUTIONAL RIGHTS OBVIOUSLY CANNOT BE ENLARGED BY THIS KIND OF
ACTION.  THE RIGHTS AND OBLIGATIONS OF THE PARTIES BECAME FIXED WHEN
THE SUMMONS WAS SERVED, AND THE TRANSFER DID NOT ALTER THEM.  SEE
UNITED STATES V. ZAKUTANSKY, 401 F.2D 68, 72 (CA7 1968), CERT. DENIED,
393 U.S. 1021 (1969); UNITED STATES V. LYONS, 442 F.2D 1144 (CA1
1971). 

/10/  A LATER COURT COMMENTING ON THE BOYD PRIVILEGE NOTED THAT "THE
PAPERS AND EFFECTS WHICH THE PRIVILEGE PROTECTS MUST BE THE PRIVATE
PROPERTY OF THE PERSON CLAIMING THE PRIVILEGE, OR AT LEAST IN HIS
POSSESSION IN A PURELY PERSONAL CAPACITY."  UNITED STATES V. WHITE, 322
U.S. 694, 699 (1944). 

/11/  BRIEF FOR PETITIONER 13-14. 

/12/  SEE ALSO UNITED STATES V. COHEN, 388 F.2D 464, 468 (CA9 1967),
WHERE THE COURT, IN UPHOLDING THE RIGHT OF A POSSESSOR, NONOWNER TO
ASSERT THE PRIVILEGE, NOTED THAT "IT IS POSSESSION OF PAPERS SOUGHT BY
THE GOVERNMENT, NOT OWNERSHIP, WHICH SETS THE STAGE FOR EXERCISE OF THE
GOVERNMENTAL COMPULSION WHICH IT IS THE PURPOSE OF THE PRIVILEGE TO
PROHIBIT."  THOUGH THE INSTANT CASE CONCERNS THE SCOPE OF THE PRIVILEGE
FOR AN OWNER, NONPOSSESSOR, THE NINTH CIRCUIT'S LINKAGE OF POSSESSION
TO THE PURPOSES SERVED BY THE PRIVILEGE WAS APPROPRIATE. 

WE DO NOT, OF COURSE, DECIDE WHAT QUALIFIES AS RIGHTFUL POSSESSION
ENABLING THE POSSESSOR TO ASSERT THE PRIVILEGE. 

/13/  BRIEF FOR PETITIONER 11-17. 

/14/  BURDEAU V. MCDOWELL, 256 U.S. 465 (1921), ALSO DEBATED AND
CITED IN THE BRIEFS, HELD THAT THE GOVERNMENT MAY RETAIN FOR USE
AGAINST THEIR OWNER IN A CRIMINAL PROCEEDING INCRIMINATING DOCUMENTS
WHICH WERE STOLEN BY PRIVATE INDIVIDUALS, WITHOUT ANY GOVERNMENTAL
KNOWLEDGE OR COMPLICITY, AND TURNED OVER TO THE GOVERNMENT.  THE COURT,
IN DENYING THE OWNER'S PRIVILEGE, ALLUDED PRIMARILY TO THE ABSENCE OF
ANY GOVERNMENTAL COMPULSION AGAINST THE ACCUSED, THE PRECISE FACTOR
CONSIDERED IN THE INSTANT CASE.  IT IS TRUE, AS PETITIONER ARGUES, THAT
THE CASE TURNS SOMEWHAT ON A DISCUSSION OF GOVERNMENTAL VERSUS PRIVATE
COMPULSION AND INVASION, BUT IT IS EQUALLY TRUE THAT THE COURT IN
BURDEAU FAILED TO FIND ANY IMPERMISSIBLE PUBLIC COMPULSION ON THE OWNER
ABSENT HIS POSSESSION: 

"WE KNOW OF NO CONSTITUTIONAL PRINCIPLE WHICH REQUIRES THE
GOVERNMENT TO SURRENDER THE PAPERS UNDER SUCH CIRCUMSTANCES.  HAD IT
LEARNED THAT SUCH INCRIMINATORY PAPERS, TENDING TO SHOW A VIOLATION OF
FEDERAL LAW, WERE IN THE HANDS OF A PERSON OTHER THAN THE ACCUSED, IT
HAVING HAD NO PART IN WRONGFULLY OBTAINING THEM, WE KNOW OF NO REASON
WHY A SUBPOENA MIGHT NOT ISSUE FOR THE PRODUCTION OF THE PAPERS AS
EVIDENCE.  SUCH PRODUCTION WOULD REQUIRE NO UNREASONABLE SEARCH OR
SEIZURE, NOR WOULD IT AMOUNT TO COMPELLING THE ACCUSED TO TESTIFY
AGAINST HIMSELF."  ID., AT 476. 

IN JOHNSON V. UNITED STATES, 228 U.S. 457 (1913), THE COURT HELD
THAT THE BOOKS AND RECORDS OF A BANKRUPT TRANSFERRED TO A TRUSTEE IN
BANKRUPTCY COULD BE USED AS EVIDENCE AGAINST THE BANKRUPT IN A
PROSECUTION FOR CONCEALING MONEY FROM THE TRUSTEE.  UNLIKE THE INSTANT
CASE, BOTH TITLE AND POSSESSION PASSED IN THAT TRANSFER AND THE RECORDS
WERE, IN ONE SENSE, "PUBLISHED" BY IT.  BUT THE COURT, IN DENYING THE
PRIVILEGE, RECOGNIZED THAT THE TRANSFER ALSO SUCCEEDED IN REMOVING THE
IMPORTANT ELEMENT OF PERSONAL COMPULSION AGAINST THE ACCUSED, ID., AT
459, JUST AS, IN THIS CASE, THE NATURE OF THE DIVESTMENT OF POSSESSION
DID. 

/15/  BRIEF FOR PETITIONER 13.  AT ORAL ARGUMENT PETITIONER RAISED A
SIMILAR CONCERN: 

"THE GOVERNMENT GOES SO FAR AS TO CONTEND, I BELIEVE, WITH THEIR
THEORY THAT ANY TIME IT IS OUT OF YOUR ACTUAL PHYSICAL POSSESSION IT IS
SUBJECT TO SUBPOENA . . . . IF I WERE HELPING YOU ACROSS CONSTITUTION
AVENUE BY CARRYING YOUR BRIEFCASE, THE GOVERNMENT HOLDS THAT THEY COULD
HAND ME A SUMMONS IN THE MIDDLE OF CONSTITUTION AVENUE AND SEIZE YOUR
DOCUMENTS TO USE AGAINST YOU IN A CRIMINAL TRIAL."  TR. OF ORAL ARG.
14. 

/16/  SEE, E.G., SCHWIMMER V. UNITED STATES, 232 F.2D 855 (CA8
1956), WHICH INVOLVED AN ATTORNEY'S PARTIALLY SUCCESSFUL MOTION TO
QUASH TWO SUBPOENAS DUCES TECUM ISSUED IN A GRAND JURY PROCEEDING
AGAINST A CORPORATION WHERE THE ATTORNEY HAD STORED HIS OFFICE FILES. 
SEE ALSO UNITED STATES V. GUTERMA, 272 F.2D 344 (CA2 1959), CONCERNING
THE STORAGE OF TAXPAYER'S PERSONAL RECORDS IN A SAFE IN OFFICES OF A
CORPORATION WHICH THE TAXPAYER HAD SERVED AS CHAIRMAN OF THE BOARD. 
ONLY THE TAXPAYER AND AN INDICTED CO-DEFENDANT KNEW THE COMBINATION OF
THE SAFE, AND THE CORPORATION HAD NO ACCESS TO IT.  THE COURT OF
APPEALS UPHELD THE TAXPAYER'S ASSERTION OF FIFTH AMENDMENT PRIVILEGE AS
TO HIS PERSONAL RECORDS IN THE FACE OF A GRAND JURY SUBPOENA DIRECTED
TO THE CORPORATION. 

PETITIONER ARGUES THESE CASES SUPPORT HER POSITION (BRIEF FOR
PETITIONER 14-15); THE GOVERNMENT ARGUES THEY CAN BE DISTINGUISHED FROM
THE INSTANT CASE AS INVOLVING MERE CUSTODIAL SAFEKEEPING OF RECORDS,
NOT DISCLOSURE OF THEIR INFORMATION TO A THIRD PERSON (BRIEF FOR UNITED
STATES 21).  WE REFRAIN FROM JUDGING THE MERITS OF SUCH DISTINCTIONS
TODAY. 

/17/  TR. OF ORAL ARG. 31. 

/18/  AS WE NOTED, SUPRA, AT 324, HIS STATUS IS THAT OF AN
INDEPENDENT CONTRACTOR.  HE ACTUALLY DID "VERY LITTLE WORK FOR THE
PETITIONER," HAD MANY OTHER CLIENTS, AND WAS COMPENSATED BY THE JOB. 
TR. OF ORAL ARG. 8. 

THIS IS A SIGNIFICANT POINT.  THE GOVERNMENT NOTED IN ORAL
ARGUMENT: 

"IN THE INTERNAL REVENUE SERVICE PRACTICE, SO LONG AS THE TAXPAYER
HAS RETAINED POSSESSION OF THE RECORDS AND THEY ARE BEING USED ONLY BY
HIS FULL-TIME EMPLOYEES OR OTHERS ON THE TAXPAYER'S PREMISES, WITHOUT
THE TAXPAYER HAVING RELINQUISHED POSSESSION AND CONTROL OF THE RECORDS,
WE ORDINARILY IN THOSE SITUATIONS ISSUE THE SUMMONS TO THE TAXPAYER,
BECAUSE IT IS THE TAXPAYER WHO HAS THE DOMINION OVER THE RECORDS AND
THE AUTHORITY TO RETURN THE SUMMONS.  AND IF THE TAXPAYER CHOOSES TO
PLEAD THE PRIVILEGE AGAINST SELF-INCRIMINATION, THAT IS UP TO THE
TAXPAYER."  TR. OF ORAL ARG. 30. 

/19/  SEE N. 6, SUPRA.  THE SUMMONS SATISFIED THE REQUIREMENTS IN
UNITED STATES V. POWELL, 379 U.S. 48, 57-58 (1964), AND, AS EXPLAINED
ABOVE, THE NECESSARY EXPECTATION OF PRIVACY TO LAUNCH A VALID FOURTH
AMENDMENT CLAIM DOES NOT EXIST.  KATZ V. UNITED STATES, 389 U.S. 347
(1967). 

/20/  THE DISSENTING OPINION OF MR. JUSTICE MARSHALL IMPLIES THAT
THE COURT HAS CREATED A "BRIGHT-LINE RULE THAT NO CONSTITUTIONAL RIGHT
OF PETITIONER IS VIOLATED BY ENFORCING A SUMMONS OF PAPERS NOT IN HER
POSSESSION."  POST, AT 344.  THIS IMPLICATION DOES NOT REFLECT
ACCURATELY THE POSITION OF THE COURT.  INDEED, IT IGNORES THE LANGUAGE
OF THE COURT, SUPRA, AT 333-335, AND NN. 15-18.  WE DO INDEED ATTACH
CONSTITUTIONAL IMPORTANCE TO POSSESSION, BUT ONLY BECAUSE OF ITS CLOSE
RELATIONSHIP TO THOSE PERSONAL COMPULSIONS AND INTRUSIONS WHICH THE
FIFTH AMENDMENT FORBIDS.  YET, CONTRARY TO ANY INTIMATION IN THE
DISSENT, WE DO NOT ADOPT ANY PER SE RULE.  WE ALSO DECLINE TO
CONJECTURE BROADLY ON THE SIGNIFICANCE OF POSSESSION IN CASES AND
CIRCUMSTANCES NOT BEFORE THIS COURT.     MR. JUSTICE BRENNAN,
CONCURRING. 

I JOIN THE OPINION OF THE COURT ON THE UNDERSTANDING THAT IT DOES
NOT ESTABLISH A PER SE RULE DEFEATING A CLAIM OF FIFTH AMENDMENT
PRIVILEGE WHENEVER THE DOCUMENTS IN QUESTION ARE NOT IN THE POSSESSION
OF THE PERSON CLAIMING THE PRIVILEGE.  IN MY VIEW, THE PRIVILEGE IS
AVAILABLE TO ONE WHO TURNS RECORDS OVER TO A THIRD PERSON FOR CUSTODIAL
SAFEKEEPING RATHER THAN DISCLOSURE OF THE INFORMATION, UNITED STATES V.
GUTERMA, 272 F.2D 344 (CA2 1959), CF. SCHWIMMER V. UNITED STATES, 232
F.2D 855 (CA8 1956); TO ONE WHO TURNS RECORDS OVER TO A THIRD PERSON AT
THE INDUCEMENT OF THE GOVERNMENT, SUTART V. UNITED STATES, 416 F.2D 459
(CA5 1969); TO ONE WHO PLACES RECORDS IN A SAFETY DEPOSIT BOX OR IN
HIDING; AND TO SIMILAR CASES WHERE REASONABLE STEPS HAVE BEEN TAKEN TO
SAFEGUARD THE CONFIDENTIALITY OF THE CONTENTS OF THE RECORDS.  /1/  THE
PRIVILEGE CANNOT EXTEND, HOWEVER, TO THE PROTECTION OF A TAXPAYER'S
RECORDS CONVEYED TO A RETAINED ACCOUNTANT FOR USE IN PREPARATION OF AN
INCOME TAX RETURN, WHERE THE ACCOUNTANT IS HIMSELF OBLIGATED TO PREPARE
A COMPLETE AND LAWFUL RETURN.  26 U.S.C. 7206(2).  IT IS CLEAR ON THE
FACTS OF THIS CASE THAT THE TAXPAYER HAS VOLUNTARILY REMOVED THESE
RECORDS FROM THAT "'PRIVATE ENCLAVE WHERE (SHE) MAY LEAD A PRIVATE LIFE
. . . ,'" MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 55 (1964), QUOTING
UNITED STATES V. GRUNEWALD, 233 F.2D 556, 581-582 (CA2 1956) (FRANK,
J., DISSENTING), REV'D, 353 U.S. 391 (1957), AND FOR THAT REASON I
WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  IN SOME OF THESE INSTANCES, TO BE SURE, THE PERSON CLAIMING THE
PRIVILEGE WOULD NOT HIMSELF HAVE BEEN THE SUBJECT OF DIRECT GOVERNMENT
COMPULSION.  AND THERE IS NO DOUBT THAT THE FIFTH AMENDMENT IS
CONCERNED SOLELY WITH COMPULSORY SELF-INCRIMINATION.  BUT SURELY THE
AVAILABILITY OF THE FIFTH AMENDMENT PRIVILEGE CANNOT DEPEND ON WHETHER
OR NOT THE OWNER OF THE DOCUMENTS IS COMPELLED PERSONALLY TO TURN THE
DOCUMENTS OVER TO THE GOVERNMENT.  IF PRIVATE, TESTIMONIAL DOCUMENTS
HELD IN THE OWNER'S OWN POSSESSION ARE PRIVILEGED UNDER THE FIFTH
AMENDMENT, THEN THE GOVERNMENT CANNOT NULLIFY THAT PRIVILEGE BY FINDING
A WAY TO OBTAIN THE DOCUMENTS WITHOUT REQUIRING THE OWNER TO TAKE THEM
IN HAND AND PERSONALLY PRESENT THEM TO THE GOVERNMENT AGENTS.  WHERE
THE GOVERNMENT TAKES PRIVATE RECORDS FROM, FOR EXAMPLE, A SAFETY
DEPOSIT BOX AGAINST THE WILL OF THE OWNER OF THE DOCUMENTS, THE OWNER
HAS BEEN COMPELLED, IN MY VIEW, TO INCRIMINATE HIMSELF WITHIN THE
MEANING OF THE FIFTH AMENDMENT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I CANNOT AGREE WITH THE MAJORITY THAT THE PRIVILEGE AGAINST SELF
INCRIMINATION WAS NOT AVAILABLE TO THE PETITIONER MERELY BECAUSE SHE
DID NOT HAVE POSSESSION OF THE DOCUMENTS IN QUESTION AND WAS NOT
HERSELF SUBJECT TO COMPULSORY PROCESS.  THE BASIC CONCERNS WHICH, IN MY
OPINION, UNDERLIE THE PRIVILEGE ARE MORE SUBTLE AND FAR-REACHING THAN
MERE AVERSION TO THE METHODS OF THE INQUISITION AND THE STAR CHAMBER
AND THEIR MODERN COUNTERPARTS.  /1/  THE DECISION TODAY SANCTIONS YET
ANOTHER TOOL OF THE EVER-WIDENING GOVERNMENTAL INVASION AND OVERSIGHT
OF OUR PRIVATE LIVES.  AS I URGED IN DISSENT IN WARDEN V. HAYDEN, 387
U.S. 294, 325, WITHOUT THE RIGHT OF PRIVACY "THE FOURTH AMENDMENT AND
THE FIFTH ARE READY INSTRUMENTS FOR THE POLICE STATE THAT THE FRAMERS
SOUGHT TO AVOID." 

        I 

BY LOOKING SOLELY TO THE HISTORICAL ANTECEDENTS OF THE PRIVILEGE AND
FOCUSING ON "THE INGREDIENT OF PERSONAL COMPULSION," THE MAJORITY
LARGELY IGNORES THE INTERPLAY OF THE FUNDAMENTAL VALUES PROTECTED BY
THE FOURTH AND FIFTH AMENDMENTS.  AS EARLY AS 1886, THE COURT
RECOGNIZED THAT ISSUES OFTEN CANNOT BE PIGEONHOLED WITHIN ONE AMENDMENT
OR THE OTHER, THEREBY FORECLOSING CONSIDERATION OF RELATED POLICIES. 
BOYD V. UNITED STATES, 116 U.S. 616.  IN DEALING WITH THE COMPULSORY
PRODUCTION OF A PRIVATE PAPER FOR USE IN A FORFEITURE PROCEEDING, THE
COURT STATED: 

     "THE PRINCIPLES LAID DOWN (IN ENTICK V. CARRINGTON, 19

  HOW.ST.TR. 1029, 95 ENG.REP.  807) AFFECT THE VERY ESSENCE OF

  CONSTITUTIONAL LIBERTY AND SECURITY . . . . (THEY APPLY TO ALL

  INVASIONS ON THE PART OF THE GOVERNMENT AND ITS EMPLOYES, OF THE

  SANCTITY OF A MAN'S HOME AND THE PRIVACIES OF LIKE.  IT IS NOT

THE BREAKING OF HIS DOORS, AND THE RUMMAGING OF HIS DRAWERS, THAT

  CONSTITUTES THE ESSENCE OF THE OFFENCE; BUT IT IS THE INVASION OF

  HIS INDEFEASIBLE RIGHT OF PERSONAL SECURITY, PERSONAL LIBERTY AND

  PRIVATE PROPERTY, WHERE THAT RIGHT HAS NEVER BEEN FORFEITRED BY

  HIS CONVICTION OF SOME PUBLIC OFFENSE . . . . BREAKING INTO A

  HOUSE AND OPENING BOXES AND DRAWERS ARE CIRCUMSTANCES OF

  AGGRAVATION; BUT ANY FORCIBLE AND COMPULSORY EXTORTION OF A MAN'S

  OWN TESTIMONY OR OF HIS PRIVATE PAPERS TO BE USED AS EVIDENCE TO

 CONVICT HIM OF CRIME OR TO FORFEIT HIS GOODS, IS WITHIN THE

  CONDEMNATION OF THAT JUDGMENT.  IN THIS REGARD THE FOURTH AND

  FIFTH AMENDMENTS RUN ALMOST INTO EACH OTHER."  ID., AT 630. 

ALTHOUGH THE SUBPOENA IN BOYD WAS DIRECTED AT THE PERSON ASSERTING THE
PRIVILEGE, THAT FACT CANNOT BE ALLOWED TO OBSCURE THE BASIC THRUST OF
THE COURT'S REASONING:  THE FOURTH AND FIFTH AMENDMENTS DELINEATE A
"SPHERE OF PRIVACY" WHICH MUST BE PROTECTED AGAINST GOVERNMENTAL
INTRUSION.  /2/  WE CONFIRMED IN MURPHY V. WATERFRONT COMM'N, 378 U.S.
52, 55, THAT "OUR RESPECT FOR THE INVIOLABILITY OF THE HUMAN
PERSONALITY AND OF THE RIGHT OF EACH INDIVIDUAL 'TO A PRIVATE ENCLAVE
WHERE HE MAY LEAD A PRIVATE LIFE'" IS A FUNDAMENTAL POLICY UNDERLYING
THE FIFTH AMENDMENT. 

THE MAJORITY CONTENDS, HOWEVER, THAT PETITIONER CANNOT REASONABLY
CLAIM "AN EXPECTATION OF PROTECTED PRIVACY OR CONFIDENTIALITY."  THE
REASONS ASSERTED FOR THIS POSITION OVERLOOK THE NATURE OF THE
ACCOUNTANT-CLIENT RELATIONSHIP.  THE ACCOUNTANT, AN AGENT FOR A
SPECIFIED PURPOSE-- I.E., COMPLETING THE PETITIONER'S TAX RETURNS--
BORE CERTAIN FIDUCIARY RESPONSIBILITIES TO PETITIONER.  ONE OF THOSE
RESPONSIBILITIES WAS NOT TO USE THE RECORDS GIVEN HIM FOR ANY PURPOSE
OTHER THAN COMPLETING THE RETURNS.  UNDER THESE CIRCUMSTANCES, IT
HARDLY CAN BE SAID THAT BY GIVING THE RECORDS TO THE ACCOUNTANT, THE
PETITIONER COMMITTED THEM TO THE PUBLIC DOMAIN.  /3/ 

I DEFINED WHAT I BELIEVE TO BE THE BOUNDARIES OF THIS RIGHT TO
PRIVACY IN WARDEN V. HAYDEN, 387 U.S.,AT 323: 

     "THE CONSTITUTIONAL PHILOSOPHY IS, I THINK, CLEAR.  THE

  PERSONAL EFFECTS AND POSSESSIONS OF THE INDIVIDUAL (ALL

  CONTRABAND AND THE LIKE EXCEPTED) ARE SACROSANCT FROM PRYING

  EYES, FROM THE LONG ARM OF THE LAW, FROM ANY RUMMAGING BY

  POLICE.  PRIVACY INVOLVES THE CHOICE OF THE INDIVIDUAL TO

  DISCLOSE OR TO REVEAL WHAT HE BELIEVES, WHAT HE THINKS, WHAT HE

  POSSESSES.  THE ARTICLE MAY BE A NONDESCRIPT WORK OF ART, A

MANUSCRIPT OF A BOOK, A PERSONAL ACCOUNT BOOK, A DIARY, INVOICES,

  PERSONAL CLOTHING, JEWELRY, OR WHATNOT.  THOSE WHO WROTE THE BILL

  OF RIGHTS BELIEVED THAT EVERY INDIVIDUAL NEEDS BOTH TO

  COMMUNICATE WITH OTHERS AND TO KEEP HIS AFFAIRS TO HIMSELF.  THAT

  DUAL ASPECT OF PRIVACY MEANS THAT THE INDIVIDUAL SHOULD HAVE THE

  FREEDOM TO SELECT FOR HIMSELF THE TIME AND CIRCUMSTANCES WHEN HE

  WILL SHARE HIS SECRETS WITH OTHERS AND DECIDE THE EXTENT OF THAT

  SHARING." 

THE MAJORITY, BY THE SEEMING IMPLICATIONS OF ITS OPINION, HAS CLEARED
THE WAY FOR INVESTIGATORY AUTHORITIES TO COMPEL DISCLOSURE OF FACETS OF
OUR LIFE WE HERETOFORE CONSIDERED SACROSANCT.  WE ARE TOLD THAT
"SITUATIONS MAY WELL ARISE WHERE . . . THE RELINQUISHMENT OF POSSESSION
IS SO TEMPORARY AND INSIGNIFICANT AS TO LEAVE THE PERSONAL COMPULSIONS
UPON THE ACCUSED SUBSTANTIALLY INTACT."  I CAN SEE NO BASIS IN THE
MAJORITY OPINION, HOWEVER, FOR STOPPING SHORT OF CONDEMNING ONLY THOSE
INTRUSIONS RESTING ON COMPULSORY PROCESS AGAINST THE AUTHOR OF THE
THOUGHTS OR DOCUMENTS.  ARE WE NOW TO ENCOURAGE MEDDLING BY THE
GOVERNMENT AND EVER MORE INGENIOUS METHODS OF OBTAINING ACCESS TO
SOUGHT-AFTER MATERIALS?  THE PREMIUM NOW WILL BE ON SUBTERFUGE, ON
BYPASSING THE MASTER OF THE DOMAIN BY SPIRITING THE MATERIALS AWAY OR
COMPELLING DISCLOSURE BY A TRUSTED EMPLOYEE OR CONFIDANT.  /4/
INEVITABLY, THIS WILL LEAD THOSE OF US WHO CHERISH OUR PRIVACY TO
REFRAIN FROM RECORDING OUR THOUGHTS OR TRUSTING ANYONE WITH EVEN
TEMPORARY CUSTODY OF DOCUMENTS WE WANT TO PROTECT FROM PUBLIC
DISCLOSURE.  IN SHORT, IT WILL STULTIFY THE EXCHANGE OF IDEAS THAT WE
HAVE CONSIDERED CRUCIAL TO OUR DEMOCRACY. 

        II 

THE DECISION MAY HAVE A MORE IMMEDIATE IMPACT WHICH THE MAJORITY
DOES NOT CONSIDER.  OUR TAX LAWS HAVE BECOME SO COMPLEX THAT VERY FEW
TAXPAYERS CAN AFFORD THE LUXURY OF COMPLETING THEIR OWN RETURNS WITHOUT
PROFESSIONAL ASSISTANCE.  IF A TAXPAYER NOW WANTS TO INSURE THE
CONFIDENTIALITY AND PRIVACY OF HIS RECORDS, HOWEVER, HE MUST FORGO SUCH
ASSISTANCE.  TO MY MIND, THE MAJORITY THUS ATTACHES A PENALTY TO THE
EXERCISE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION.  IT CALLS FOR
LITTLE MORE DISCUSSION THAN TO NOTE THAT WE HAVE NOT TOLERATED SUCH
PENALTIES IN THE PAST.  CF. UNIFORMED SANITATION MEN V. COMMISSIONER OF
SANITATION, 392 U.S. 280; GARDNER V. BRODERICK, 392 U.S. 273. 

        III 

THUS, I WOULD REVERSE THE DECISION BELOW, FINDING THAT THE SUBPOENA
VIOLATED BOTH PETITIONER'S FOURTH AND FIFTH AMENDMENT RIGHTS.  /5/  I
OFFER ONE MORE OBSERVATION.  THE MAJORITY CAUTIONS THAT RESPECT FOR OUR
CONSTITUTIONAL PRINCIPLES IS ERODED "WHEN THEY LEAP THEIR PROPER
BOUNDS."  WE SHOULD NOT BE SWAYED BY THE POPULAR CRY FOR A FORMALISTIC
AND NARROW INTERPRETATION OF THOSE PROVISIONS WHICH SAFEGUARD OUR
FUNDAMENTAL RIGHTS. 

IT IS A CONSTITUTION WE ARE CONSTRUING, NOT A LEGISLATIVE-JUDICIAL
CODE OF CONDUCT THAT SUITS OUR PRIVATE VALUE CHOICES OR THAT SATISFIES
THE APPETITE OF PROSECUTORS FOR MORE AND MORE SHORTCUTS THAT AVOID
CONSTITUTIONAL BARRIERS.  THOSE CONSTITUTIONAL BARRIERS AND THE
JUDICIAL TRADITIONS SUPPORTING THEM ARE THE SOURCES OF THE PRIVACY WE
VALUE SO GREATLY.  THAT PRIVACY "PROTECTS PEOPLE," NOT PLACES, UNDER
THE FOURTH AMENDMENT, KATZ V. UNITED STATES, 389 U.S. 347, 353.  AND,
AS ALREADY NOTED, BOYD V. UNITED STATES, SUPRA, HELD THAT WHEN IT COMES
TO THE "FORCIBLE AND COMPULSORY EXTORTION OF A MAN'S OWN TESTIMONY OR
OF HIS PRIVATE PAPERS TO BE USED AS EVIDENCE TO CONVICT HIM OF CRIME OR
TO FORFEIT HIS GOODS," THAT IS AN ILLUSTRATION OF THE MANNER IN WHICH
"THE FOURTH AND FIFTH AMENDMENTS RUN ALMOST INTO EACH OTHER."  116
U.S.,AT 630. 

ONE'S PRIVACY EMBRACES WHAT THE PERSON HAS IN HIS HOME, HIS DESK,
HIS FILES, AND HIS SAFE AS WELL AS WHAT HE CARRIES ON HIS PERSON.  IT
ALSO HAS A VERY MEANINGFUL RELATIONSHIP TO WHAT HE TELLS ANY CONFIDANT-
HIS WIFE, HIS MINISTER, HIS LAWYER, OR HIS TAX ACCOUNTANT.  THE
CONSTITUTIONAL FENCES OF LAW ARE BEING BROKEN DOWN BY AN EVER
INCREASINGLY POWERFUL GOVERNMENT THAT SEEKS TO REDUCE EVERY PERSON TO A
DIGIT. 

/1/  THIS IS NOT TO SAY, OF COURSE, THAT WE MUST NOT BE ACUTELY
ALERT TO ANY "RECURRENCE OF THE INQUISITION AND THE STAR CHAMBER, EVEN
IF NOT IN THEIR STARK BRUTALITY."  ULLMANN V. UNITED STATES, 350 U.S.
422, 428 (1956).  SEE, E.G., MIRANDA V. ARIZONA, 384 U.S. 436 (1966). 

/2/  THE COURT IN BOYD ALSO STATED THAT IT WAS UNABLE "TO PERCEIVE
THAT THE SEIZURE OF A MAN'S PRIVATE BOOKS AND PAPERS TO BE USED IN
EVIDENCE AGAINST HIM IS SUBSTANTIALLY DIFFERENT FROM COMPELLING HIM TO
BE A WITNESS AGAINST HIMSELF.  WE THINK IT IS WITHIN THE CLEAR INTENT
AND MEANING OF THOSE TERMS."  ID., AT 633.  SUBSEQUENT DECISIONS,
HOWEVER, HAVE REFUSED TO APPLY THE PRIVILEGE TO BAR THE INTRODUCTION OF
"TESTIMONIAL" EVIDENCE WHERE THE AUTHOR NO LONGER HAS ANY PROPERTY
RIGHTS OR A VALID CLAIM TO CONFIDENTIALITY AND PRIVACY.  SEE, E.G.,
PERLMAN V. UNITED STATES, 247 U.S. 7; JOHNSON V. UNITED STATES, 228
U.S. 457.  OBVIOUSLY, THE COURT IS NOT DISPOSED TO RECONSIDER THOSE
DECISIONS AS THEY APPLY TO INSTANCES WHERE THE AUTHOR HAS NOT KNOWINGLY
AND INTELLIGENTLY WAIVED HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  IN
ANY EVENT, I DO NOT BELIEVE IT IS NECESSARY TO REACH THAT ISSUE HERE
BECAUSE, AS I WILL DISCUSS BELOW, I BELIEVE THAT THE PETITIONER HAS A
VALID CLAIM TO CONFIDENTIALITY AND PRIVACY. 

/3/  THE MAJORITY STATES THAT WHAT INFORMATION TO DISCLOSE IN THE
PETITIONER'S TAX RETURNS IS LARGELY IN THE ACCOUNTANT'S DISCRETION. 
THEREFORE, IT ARGUES, THE ACCOUNTANT'S OWN NEED FOR SELF-PROTECTION (TO
ANSWER A POSSIBLE CHARGE OF ASSISTING IN THE PREPARATION OF A FALSE
RETURN) WOULD OFTEN REQUIRE THE RIGHT TO DISCLOSE THE INFORMATION GIVEN
HIM.  IT MAY BE THAT THE ACCOUNTANT'S FIDUCIARY RESPONSIBILITIES MUST
YIELD IN THIS EVENT, BUT THAT WAS NOT THE CASE HERE. 

/4/  THE MAJORITY NOTES THAT "THE ACCOUNTANT HIMSELF WORKED NEITHER
IN PETITIONER'S OFFICE NOR AS HER EMPLOYEE."  I CANNOT SEE HOW THAT
FACTOR BEARS ON WHETHER THE "INGREDIENT OF PERSONAL COMPULSION AGAINST
(THE) ACCUSED" IS PRESENT, OR WHETHER THE ACCOUNTANT WAS A CONFIDANT. 
THE MAJORITY WOULD SEEM TO SUGGEST, HOWEVER, THAT PETITIONER, BECAUSE
HER BUSINESS DID NOT CALL FOR, OR BECAUSE SHE COULD NOT AFFORD, A FULL
TIME ACCOUNTANT, DESERVES LESS PROTECTION UNDER THE FIFTH AMENDMENT
THAN A TAXPAYER MORE FORTUNATELY SITUATED.     /5/  IN HOLDING THAT
"MERE EVIDENCE" IS NOT PROTECTED FROM SEIZURE UNDER THE FOURTH
AMENDMENT, THE COURT EXPRESSLY REFUSED TO CONSIDER "WHETHER THERE ARE
ITEMS OF EVIDENTIAL VALUE WHOSE VERY NATURE PRECLUDES THEM FROM BEING
THE OBJECT OF A REASONABLE SEARCH AND SEIZURE."  WARDEN V. HAYDEN, 387
U.S. 294, 303.  THE ANSWER TO THAT QUESTION WAS CLEAR TO ME WHEN I
DISSENTED IN THAT CASE AND REMAINS CLEAR TO ME NOW. 

MR. JUSTICE MARSHALL, DISSENTING. 

I CANNOT AGREE WITH THE MAJORITY THAT THE CONSTITUTION PERMITS THE
GOVERNMENT TO ENFORCE THE SUMMONS ISSUED IN THIS CASE.  THE OPINION OF
THE COURT FAILS TO ARTICULATE THE BASIS OF ITS RESULT IN A WAY THAT
ADDRESSED THE RANGE OF CONSTITUTIONAL CONCERNS INVOLVED.  /1/  THE
MAJORITY SEEMS TO CREATE A BRIGHT-LINE RULE THAT NO CONSTITUTIONAL
RIGHT OF PETITIONER IS VIOLATED BY ENFORCING A SUMMONS OF PAPERS NOT IN
HER POSSESSION.  LIKE MR. JUSTICE BRENNAN, I COULD NOT ACCEPT SUCH A
RULE.  HOWEVER, THE MAJORITY BLURS THE LINE BY SUGGESTING THAT
TEMPORARY RELINQUISHMENT OF POSSESSION PRESENTS A DIFFERENT CASE, SEE
ANTE, AT 333.  THE COURT EXPRESSLY DISCLAIMS THE PROPOSITION THAT
POSSESSION ALONE IS DETERMINATIVE OF THE AVAILABILITY OF CONSTITUTIONAL
PROTECTION FOR PETITIONER'S PAPERS.  ANTE, AT 336, AND 333 N. 16.  BUT
NEITHER THE OPINION OF THE COURT NOR THE CONCURRING OPINION OF MR.
JUSTICE BRENNAN SUPPLIES A CLEARLY ARTICULATED CONSTITUTIONAL BASIS FOR
THE RULE ADOPTED.  IF THE CONSIDERATIONS THAT UNDERLIE THE COURT'S
EXPRESSED CONCERNS ARE STATED EXPLICITLY, I THINK IT IS CLEAR THAT THE
COURT HAS FAILED TO APPLY CORRECTLY THE STANDARDS WHICH IT APPEARS TO
FIND RELEVANT.  /2/  I AGREE, OF COURSE, THAT POSSESSION DOES NOT
DEFINE THE LIMITS OF THE PROTECTION THAT THE CONSTITUTION AFFORDS TO
PRIVATE PAPERS, AND ADD THESE COMMENTS TO INDICATE HOW I WOULD TREAT
CLAIMS LIKE PETITIONER'S. 

A. I BEGIN WITH BOYD V. UNITED STATES, 116 U.S. 616 (1886), WHOSE
CONTINUING VITALITY IS INDICATED BY THE MAJORITY'S EFFORT TO
DISTINGUISH IT.  THAT WAS A SUIT FOR THE FORFEITURE OF 35 CASES OF
PLATE GLASS ALLEGED TO HAVE BEEN ILLEGALLY IMPORTED.  IN THE COURSE OF
THE FORFEITURE PROCEEDING, THE GOVERNMENT INTRODUCED INTO EVIDENCE AN
INVOICE OF A PRIOR SHIPMENT.  THE DEFENDANTS OBJECTED ON THE GROUND
THAT THE USE OF THE INVOICE VIOLATED THEIR RIGHTS UNDER THE FOURTH AND
FIFTH AMENDMENTS, BECAUSE THE INVOICE WAS A PRIVATE PAPER SECURED BY A
SUBPOENA.  THIS COURT FOUND A VIOLATION OF BOTH AMENDMENTS. 

ONE MIGHT INTERPET BOYD AS HOLDING THAT THE FIFTH AMENDMENT
PROHIBITS THE USE OF PRIVATE PAPERS IN A CRIMINAL PROCEEDING OVER THE
AUTHOR'S OBJECTION.  THE WORDS OF THE FIFTH AMENDMENT SURELY CAN BE
READ IN THAT WAY.  THE USE OF THE PAPERS OVER OBJECTION "COMPELS THE
AUTHOR) IN (A) CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  THE
COMPULSION OCCURS WHEN THE PAPER IS INTRODUCED OVER OBJECTION, NOT WHEN
THE PAPER IS WRITTEN OR SUBPOENAED. 

BUT THAT INTERPRETATION HAS NOT BEEN ADOPTED BY THIS COURT.  SEE,
E.G., PERLMAN V. UNITED STATES, 247 U.S. 7 (1918); JOHNSON V. UNITED
STATES, 228 U.S. 457 (1913).  AND IN SOME POSSIBLE CASES, CONSISTENT
APPLICATION OF THAT INTERPRETATION OF BOYD MIGHT LEAD TO RESULTS AT
ODDS WITH COMMON SENSE.  /3/ 

ANOTHER INTERPRETATION OF BOYD HAS BEEN ACCEPTED BY THIS COURT AND
BY THE LEADING COMMENTATORS.  SEE, E.G., CURCIO V. UNITED STATES, 354
U.S. 118, 125 (1957); 8 J. WIGMORE, EVIDENCE SEC. 2264 (MCNAUGHTON REV.
1961); C. MCCORMICK, EVIDENCE SECS. 126-127 (2D ED. 1972).  WHEN A
PARTY PRODUCES POTENTIALLY INCRIMINATING EVIDENCE IN RESPONSE TO A
SUMMONS OR SUBPOENA, HE IMPLICITLY TESTIFIES THAT THE EVIDENCE HE
BRINGS FORTH IS IN FACT THE EVIDENCE DEMANDED.  "THE CUSTODIAN'S ACT OF
PRODUCING BOOKS OR RECORDS IN RESPONSE TO A SUBPOENA DUCES TECUM IS
ITSELF A REPRESENTATION THAT THE DOCUMENTS PRODUCED ARE THOSE DEMANDED
BY THE SUBPOENA.  REQUIRING THE CUSTODIAN TO IDENTIFY OR AUTHENTICATE
THE DOCUMENTS FOR ADMISSION IN EVIDENCE MERELY MAKES EXPLICIT WHAT IS
IMPLICIT IN THE PRODUCTION ITSELF."  CURCIO V. UNITED STATES, 354
U.S.,AT 125. 

THE POTENTIAL FOR INCRIMINATION INHERENT IN THE ACT OF PRODUCTION IS
ILLUSTRATED BY THIS CASE.  THE SUMMONS HERE CALLED FOR THE PRODUCTION
OF "(ALL BOOKS . . . PERTAINING TO THE TAX LIABILITY OF" PETITIONER. 
HAD THE SUMMONS BEEN DIRECTED TO HER, SHE WOULD HAVE IMPLICITLY
TESTIFIED, ON PRODUCING SOME PAPERS, THAT THESE WERE "ALL" THE RECORDS
SOUGHT.  THE INTERNAL REVENUE AGENTS BELIEVED THAT SHE MAY HAVE
UNDERSTATED HER INCOME.  THEIR BELIEF MIGHT HAVE BEEN CONFIRMED ON
EXAMINING ALL OF HER RECORDS, BUT NOT ON EXAMINING ONLY SOME OF THEM. 
THE RECORDS COULD THEN BE USED IN A SUBSEQUENT CRIMINAL PROSECUTION FOR
UNDERREPORTING HER INCOME.  IF SHE PRODUCED ONLY SOME OF HER BOOKS,
THOUGH, SHE WOULD BE LIABLE FOR CONTEMPT OF THE ORDER.  THE FIFTH
AMENDMENT WAS DESIGNED TO PREVENT THE GOVERNMENT FROM PLACING POTENTIAL
DEFENDANTS IN SUCH A POSITION.  CF. MURPHY V. WATERFRONT COMM'N, 378
U.S. 52, 55 (1964). 

THESE CONSIDERATIONS OPERATE ONLY AGAINST THE PERSON IN POSSESSION
OF THE PAPERS, AS THE MAJORITY CORRECTLY POINTS OUT.  IN THIS CASE, THE
ACCOUNTANT TO WHOM THE SUMMONS WAS DIRECTED MADE NO CLAIM THAT TURNING
OVER THE RECORDS HE HAS MIGHT INCRIMINATE HIM, FOR EXAMPLE, BY EXPOSING
HIM TO THE CHARGE THAT HE HAD PERJURED HIMSELF IN REPRESENTING THAT THE
RETURN PREPARED FOR PETITIONER WAS CORRECT TO THE BEST OF HIS KNOWLEDGE
AND BELIEF, 26 U.S.C. 6065, OR THAT HE HAD KNOWINGLY AIDED IN THE
PREPARATION OF A FALSE RETURN, 26 U.S.C. 7206(2).  NOR COULD HE BE HELD
TO HAVE REPRESENTED MORE THAN THAT HE HAD PRODUCED ALL THE RECORDS IN
HIS POSSESSION. 

HOWEVER, THE ACCEPTED INTERPRETATION OF BOYD HAS AN ODD SOUND TO IT.
BOYD EMPHASIZED THAT THE INVOICE THERE WAS A PRIVATE PAPER WRITTEN BY
THE DEFENDANTS.  YET THE ACCEPTED INTERPRETATION OF THE CASE MAKES THE
AUTHORSHIP AND CONTENTS OF THE PAPER LARGELY IRRELEVANT.  WHAT IS
INCRIMINATING ABOUT THE PRODUCTION OF A DOCUMENT IN RESPONSE TO AN
ORDER IS NOT ITS CONTENTS, AS ONE MIGHT HAVE THOUGHT, BUT THE IMPLICIT
AUTHENTICATION THAT THE DOCUMENT IS THE ONE NAMED IN THE ORDER.  /4/
IF THAT IS THE ONLY WAY RATIONALLY TO INTERPRET BOYD, IT MIGHT MAKE
SENSE TO DO SO.  /5/  BUT IT MAKES BETTER SENSE TO DEVISE A RATIONALE
THAT FOCUSES ON THE OBVIOUS CONCERN OF THE CASE, THE DESIRE OF THE
AUTHOR OF DOCUMENTS TO KEEP THEM PRIVATE. 

B. THIS COURT ALSO HELD IN BOYD THAT THE FOURTH AMENDMENT WAS
VIOLATED.  INDEED, MUCH OF THE OPINION IS DEVOTED TO A DISCUSSION OF
ENTICK V. CARRINGTON, 19 HOW.ST.TR. 1029, 95 ENG.REP.  807 (1765), A
LANDMARK IN THE DEVELOPMENT OF THE PROHIBITION AGAINST UNREASONABLE
SEARCHES AND SEIZURES.  HERE, TOO, THE DOCTRINAL BASIS OF THE HOLDING
IS UNCLEAR, IN PART BECAUSE THE COURT CORRECTLY PERCEIVED THAT "(IN
THIS REGARD THE FOURTH AND FIFTH AMENDMENTS RUN ALMOST INTO EACH
OTHER."  116 U.S.,AT 630. 

BOYD SUGGESTED THAT THE FOURTH AMENDMENT PROHIBITED THE SEIZURE OF
"MERE EVIDENCE."  116 U.S.,AT 623-624.  SEE GOULED V. UNITED STATES,
255 U.S. 298 (1921).  SEARCHES FOR MERE EVIDENCE WERE UNREASONABLE EVEN
IF SUCH SEARCHES WERE SURE TO PRODUCE EVIDENCE LEADING TO A
CONVICTION.  THE PRECISE CONTOURS OF THE "MERE EVIDENCE" RULE WERE
SHAPED BY CONCEPTS OF PROPERTY LAW WHICH WE NOW SEE AS OUTMODED.  SEE
WARDEN V. HAYDEN, 387 U.S. 294, 303-307 (1967).  BUT THOSE CONCEPTS
ATTEMPTED TO DEFINE, HOWEVER IMPRECISELY, A SPHERE OF PERSONAL PRIVACY
THAT THE GOVERNMENT COULD NOT ENTER OVER OBJECTION.  SEE, E.G., GOULED
V. UNITED STATES, SUPRA, AT 304.  AND WHEN THIS COURT REPUDIATED THE
"MERE EVIDENCE" RULE, IT SUGGESTED THAT FOURTH AMENDMENT LIMITATIONS
MIGHT BE DEVISED PRECISELY IN TERMS OF THE INTEREST IN PRIVACY,
PROHIBITING THE SEIZURE OF "ITEMS OF EVIDENTIAL VALUE WHOSE VERY NATURE
PRECLUDES THEM FROM BEING THE OBJECT OF A REASONABLE SEARCH AND
SEIZURE."  WARDEN V. HAYDEN, 387 U.S.,AT 303.  CF. STANFORD V. TEXAS,
379 U.S. 476, 485 (1965). 

THE FOURTH AND FIFTH AMENDMENTS DO NOT SPEAK TO TOTALLY UNRELATED
CONCERNS.  CF. GRISWOLD V. CONNECTICUT, 381 U.S. 479, 484-485 (1965);
MURPHY V. WATERFRONT COMM'N, 378 U.S.,AT 55.  BOTH INVOLVE ASPECTS OF A
PERSON'S RIGHT TO DEVELOP FOR HIMSELF A SPHERE OF PERSONAL PRIVACY. 
WHERE THE AMENDMENTS "RUN ALMOST INTO EACH OTHER," I WOULD PROHIBIT THE
GOVERNMENT FROM ENTERING.  /6/  THE PROBLEM, AS I SEE IT, IS TO DEVELOP
CRITERIA FOR DETERMINING WHETHER EVIDENCE SOUGHT BY THE GOVERNMENT LIES
WITHIN THE SPHERE OF ACTIVITIES THAT PETITIONER ATTEMPTED TO KEEP
PRIVATE.  CF. KATZ V. UNITED STATES, 389 U.S. 347, 351-352 (1967). 

THE FIRST CRITERION, AS HAYDEN SUGGESTS, IS THE NATURE OF THE
EVIDENCE.  DIARIES AND PERSONAL LETTERS THAT RECORD ONLY THEIR AUTHOR'S
PERSONAL THOUGHTS LIE AT THE HEART OF OUR SENSE OF PRIVACY.  IN
CONTRAST, I SEE NO BAR IN THE FOURTH OR FIFTH AMENDMENT TO THE SEIZURE
OF A LETTER FROM ONE CONSPIRATOR TO ANOTHER DIRECTING THE RECIPIENT TO
TAKE STEPS THAT FURTHER THE CONSPIRACY.  BUSINESS RECORDS LIKE THOSE
SOUGHT IN THIS CASE LIE BETWEEN THOSE CASES.  WE ARE NOT SO OUTRAGED BY
THE INTRUSION ON PRIVACY THAT ACCOMPANIES THE SEIZURE OF THESE RECORDS
AS WE ARE BY THE SEIZURE OF A DIARY, YET THE RECORDS COULD NOT EASILY
BE CALLED "INSTRUMENTALITIES" OF TAX EVASION, PARTICULARLY IF THEY ARE
ACCURATE. 

SECOND, WE MUST CONSIDER THE ORDINARY OPERATIONS OF THE PERSON TO
WHOM THE RECORDS ARE GIVEN.  A TRANSFER TO A LAWYER IS PROTECTED, NOT
SIMPLY BECAUSE THERE IS A RECOGNIZED ATTORNEY-CLIENT PRIVILEGE, BUT
ALSO BECAUSE THE ORDINARY EXPECTATION IS THAT THE LAWYER WILL NOT
FURTHER PUBLICIZE WHAT HE HAS BEEN GIVEN.  AGAIN IN CONTRAST, A
TRANSFER TO A TRUSTEE IN BANKRUPTCY OR TO A CLERK OF A COURT DOES NOT
USUALLY CARRY WITH IT SUCH EXPECTATIONS.  THAT IS HOW I WOULD JUSTIFY
JOHNSON AND PERLMAN.  HERE, TOO, THE TRANSFER IN THIS CASE LIES BETWEEN
THE EXTREMES.  IT WOULD BE RELEVANT TO A DECISION ABOUT THE EXPECTATION
OF PRIVACY THAT AN ACCOUNTANT-CLIENT PRIVILEGE EXISTED UNDER LOCAL LAW,
BUT NOT DETERMINATIVE.  PETITIONER DISCLAIMED RELIANCE ON SUCH A
PRIVILEGE.  TR. OF ORAL ARG. 7.  BUT I WOULD THINK THAT, PRIVILEGED OR
NOT, A DISCLOSURE TO AN ACCOUNTANT IS RATHER CLOSE TO DISCLOSURE TO AN
ATTORNEY. 

THIRD, THE PURPOSES FOR WHICH THE RECORDS WERE TRANSFERRED IS AN
ELEMENT OF AN INFORMED JUDGMENT ABOUT THE AUTHOR'S INTEREST IN THE
PRIVACY OF THE PAPERS.  THAT A TRANSFER IS COMPELLED BY PRACTICAL
CONSIDERATIONS IF THE AUTHOR IS TO CLAIM BENEFITS AVAILABLE UNDER THE
LAW, SEEMS TO ME QUITE IMPORTANT.  IF PETITIONER HAD SOUGHT TO TAKE
ADVANTAGE OF SOME COMPLICATED PROVISION OF THE TAX LAWS, AND NEEDED THE
HELP OF AN ACCOUNTANT TO DO SO, I WOULD BE QUITE RELUCTANT TO HOLD THAT
THE TRANSFER OF HER RECORDS WAS A SURRENDER OF THE PRIVACY OF THE
PAPERS.  BUT CF. JOHNSON V. UNITED STATES, 228 U.S. 457 (1913).  AS I
UNDERSTAND IT, THE MAJORITY'S EXCEPTION FOR TEMPORARY RELINQUISHMENT OF
POSSESSION, AND SEVERAL OF MR. JUSTICE BRENNAN'S EXCEPTIONS, RECOGNIZE
THE IMPORTANCE OF THIS CRITERION. 

FINALLY, WE MUST TAKE INTO ACCOUNT THE STEPS THAT THE AUTHOR TOOK TO
INSURE THE PRIVACY OF THE RECORDS.  CF. IN RE HARRIS, 221 U.S. 274, 280
(1911).  PLACING THEM IN A SAFE DEPOSIT BOX IS DIFFERENT FROM LETTING
THEM REMAIN FOR MANY YEARS WITH AN ACCOUNTANT. 

IT IS NOT IMPOSSIBLE THAT PETITIONER HAD INDEED ABANDONED HER CLAIM
TO PRIVACY IN THE PAPERS SOUGHT BY SUMMONS IN THIS CASE.  BUT THE
DISTRICT COURT AND THE COURT OF APPEALS APPLIED A RATHER RIGID TEST
WHICH MADE POSSESSION ALONE CONCLUSIVE.  THOSE COURTS HAVE MORE
EXPERIENCE THAN WE DO WITH THE ORDINARY PRACTICES OF TAXPAYERS,
ACCOUNTANTS, AND INTERNAL REVENUE AGENTS.  THEY ARE THEREFORE BETTER
ABLE, IN THE FIRST INSTANCE, TO APPLY THE CRITERIA I BELIEVE ARE
RELEVANT, IN LIGHT OF THEIR UNDERSTANDING OF THE ORDINARY PRACTICES IN
SUCH CASES.  I WOULD VACATE THE JUDGMENT AND REMAND THE CASE TO THE
DISTRICT COURT FOR CONSIDERATION OF THOSE CRITERIA. 

/1/  IN PART THIS RESULTS FROM THE CONFLATION OF PETITIONER'S CLAIMS
UNDER THE FOURTH AND FIFTH AMENDMENTS.  SEE ANTE, AT 325-326, N. 6. 
BUT THE CONSTITUTIONAL CLAIMS ARE COMPLICATED, AND THEIR ARTICULATION
IS DIFFICULT.  THE OPINION OF THE COURT DOES NOT, I BELIEVE, PRESENT AN
ACCEPTABLE RATIONALE FOR ITS HOLDING. 

/2/  IT MAY BE THAT EVERYTHING IN THIS OPINION IS IMPLICIT IN THE
OPINION OF THE COURT.  THE MAJORITY RECOGNIZES THE IMPORTANCE OF THE
PURPOSES OF THE TRANSFER, ANTE, AT 334, THE STEPS TAKEN TO PROTECT THE
PRIVACY OF THE RECORDS, IBID., AND THE ORDINARY OPERATIONS OF THE
RECIPIENT, IBID.  I WOULD BE PLEASED TO DISCOVER THAT WE HAD NO SERIOUS
DISAGREEMENTS ABOUT THE GUIDING PRINCIPLES IN THIS CASE, BUT ONLY A
RELATIVELY MINOR DISAGREEMENT ABOUT ITS PROPER DISPOSITION. 

/3/  FOR EXAMPLE, SUPPOSE A NOTED CRIMINAL LAWYER WALKED INTO A
POLICE STATION AND PRESENTED THE DESK SERGEANT WITH HIS HANDWRITTEN
CONFESSION TO THE ARSON OF HIS NEIGHBOR'S HOUSE.  BOYD V. UNITED
STATES, 116 U.S. 616 (1886), READ AS SUGGESTED IN THE TEXT, WOULD BAR
THE USE OF THAT DOCUMENT IF, AT TRIAL, THE DEFENDANT OBJECTED. 

THAT CASE MIGHT BE ANALYZED AS A PROBLEM OF WAIVER:  DID THE MANNER
IN WHICH THE AUTHOR REVEALED THE PAPER INDICATE A KNOWING DECISION TO
SURRENDER HIS RIGHTS?  THE CASES THAT STAND IN THE WAY OF THE SIMPLEST
INTERPRETATION OF BOYD MIGHT BE TREATED SIMILARLY.  BUT THE "WAIVER" IN
THOSE CASES WAS NOT A WAIVER IN THE ORDINARY SENSE.  IN JOHNSON, FOR
EXAMPLE, THE DEFENDANT HAD BEEN INDICTED FOR CONCEALING MONEY FROM HIS
TRUSTEE IN BANKRUPTCY.  THE BANKRUPTCY ACT REQUIRED THAT HE TURN OVER
HIS BOOKS TO THE TRUSTEE, AND THE BOOKS WERE USED AGAINST JOHNSON IN
THE CRIMINAL CASE.  THE TRANSFER OF THE BOOKS WAS REQUIRED IF JOHNSON
WAS TO HAVE THE BENEFITS OF BANKRUPTCY AVAILABLE TO HIM.  TO MAKE THAT
TRANSFER A WAIVER OF FIFTH AMENDMENT RIGHTS WOULD BE TO IMPOSE AN
UNCONSTITUTIONAL CONDITION.     STILL, EVEN IF "WAIVER" IS AN
INAPPROPRIATE TERM HERE, THE UNDERLYING NOTION THAT SOMEONE MAY BEHAVE
IN A WAY THAT INDICATES A RELINQUISHMENT OF HIS CONSTITUTIONAL RIGHTS
IS SOUND.  I RELY ON IT AS THE PROPER TERM TO USE IN ANALYZING CLAIMS
LIKE PETITIONER'S.  SEE INFRA, AT 350. 

/4/  ANOTHER WAY OF SEEING THE ODDITY OF THIS INTERPRETATION IS TO
CONSIDER WHETHER THE PERSON WHO PRODUCES DOCUMENTS OTHER THAN THOSE
CALLED FOR HAS COMMITTED PERJURY.  PERHAPS HE HAS, BUT THE PERJURY IS
AN UNUSUAL ONE.  YET PREJURY IS THE THIRD HORN OF THE "CRUEL TRILEMMA"
THAT THE FIFTH AMENDMENT WAS DESIGNED TO ELIMINATE.     /5/  ANOTHER
INTERPRETATION OF BOYD MAKES OWNERSHIP CRUCIAL.  A PERSON WHO OWNS
SOMETHING HAS THE RIGHT TO EXERCISE A GREAT DEAL OF CONTROL OVER IT.
WHEN THE GOVERNMENT SEIZES IT, THE OWNER IS COMPELLED TO GIVE UP THAT
RIGHT.  THIS INTERPRETATION IS CONSISTENT WITH THE OBSERVATION IN BOYD
THAT CONTRABAND AND INSTRUMENTALITIES OF CRIME CAN BE SEIZED BECAUSE
THE GOVERNMENT HAS A SUPERIOR PROPERTY RIGHT IN THEM.  HOWEVER, THIS
INTERPRETATION RUNS INTO THE SAME DIFFICULTIES AS THE ACCEPTED ONE; IN
PARTICULAR, IT MAKES THE AUTHORSHIP AND CONTENT OF THE PROPERTY
IRRELEVANT.  AND THE EMPHASIS ON PROPERTY RIGHTS IN THIS AREA HAS SINCE
BEEN ABANDONED.  SEE, E.G., WARDEN V. HAYDEN, 387 U.S. 294 (1967). 

/6/  I RECOGNIZE THAT THERE IS AN ALTERNATE VIEW, THAT UNLESS A
FIFTH AMENDMENT PRIVILEGE IS INVOLVED, THE FOURTH AMENDMENT AUTHORIZES
INTRUSION WHEN IT IS NOT UNREASONABLE.  HOWEVER, THIS COURT HAS HELD
THAT INCREASINGLY SEVERE STANDARDS OF PROBABLE CAUSE ARE NECESSARY TO
JUSTIFY INCREASINGLY INTRUSIVE SEARCHES.  CF. CAMARA V. MUNICIPAL
COURT, 387 U.S. 523 (1967); TERRY V. OHIO, 392 U.S. 1 (1968); STANFORD
V. TEXAS, 379 U.S. 476 (1965).  THE PRECISE ELEMENTS REQUIRED OF A
FIFTH AMENDMENT VIOLATION NEED NOT COINCIDE EXACTLY WITH THE ELEMENTS
OF AN INVASION OF PRIVACY THAT SHOULD BE CONSIDERED UNREASONABLE, AND I
SEE NO REASON TO CONFINE THE SPHERE OF PRIVACY FREE FROM INTRUSION TO
JUST WHAT THE FIFTH AMENDMENT PROTECTS. 

JOHN G. ROCOVICH, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS CLAUDE D. CARTER. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES ET AL. ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
CRAMPTON, KEITH A. JONES, JOHN P. BURKE, AND JOHN M. BRANT. 
..END :




















EXECUTIVE JET AVIATION V. CITY OF CLEVELAND, 409 U.S. 249 


       EXECUTIVE JET AVIATION, INC., ET AL. V. CITY OF CLEVELAND ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

        SIXTH CIRCUIT

        NO. 71-678.  ARGUED NOVEMBER 15, 1972-- DECIDED DECEMBER
18,

           1972 


PETITIONERS, INVOKING FEDERAL ADMIRALTY JURISDICTION UNDER 28 U.S.C.
1333(1), BROUGHT SUIT FOR DAMAGES RESULTING FROM THE CRASHLANDING AND
SINKING IN THE NAVIGABLE WATERS OF LAKE ERIE OF THEIR JET AIRCRAFT
SHORTLY AFTER TAKEOFF FROM A CLEVELAND AIRPORT.  THE DISTRICT COURT
DISMISSED THE COMPLAINT FOR LACK OF ADMIRALTY JURISDICTION ON THE
GROUNDS THAT THE ALLEGED TORT HAD NEITHER A MARITIME LOCALITY NOR A
MARITIME NEXUS.  THE COURT OF APPEALS AFFIRMED ON THE FIRST GROUND. 
HELD:  NEITHER THE FACT THAT AN AIRCRAFT GOES DOWN ON NAVIGABLE WATERS
NOR THAT THE NEGLIGENCE "OCCURS" WHILE THE AIRCRAFT IS FLYING OVER SUCH
WATERS IS SUFFICIENT TO CONFER FEDERAL ADMIRALTY JURISDICTION OVER
AVAIATION TORT CLAIMS, AND IN THE ABSENCE OF LEGISLATION TO THE
CONTRARY SUCH JURISDICTION EXISTS WITH RESPECT TO THOSE CLAIMS ONLY
WHEN THERE IS A SIGNIFICANT RELATIONSHIP TO TRADITIONAL MARITIME
ACTIVITY.  THEREFORE, FEDERAL ADMIRALTY JURISDICTION DOES NOT EXTENT TO
AVIATION TORT CLAIMS ARISING FROM FLIGHTS LIKE THE ONE INVOLVED HERE
BETWEEN POINTS WITHIN THE CONTINENTAL UNITED STATES.  PP. 253-274. 

448 F.2D 151, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON JULY 28, 1968, A JET AIRCRAFT, OWNED AND OPERATED BY THE
PETITIONERS, STRUCK A FLOCK OF SEAGULLS AS IT WAS TAKING OFF FROM BURKE
LAKEFRONT AIRPORT IN CLEVELAND, OHIO, ADJACENT TO LAKE ERIE.  AS A
RESULT, THE PLANE LOST ITS POWER, CRASHED, AND ULTIMATELY SANK IN THE
NAVIGABLE WATERS OF LAKE ERIE, A SHORT DISTANCE FROM THE AIRPORT.  THE
QUESTION BEFORE US IS WHETHER THE PETITIONERS' SUIT FOR PROPERTY DAMAGE
TO THE AIRCRAFT, ALLEGEDLY CAUSED BY THE RESPONDENTS' NEGLIGENCE, LIES
WITHIN FEDERAL ADMIRALTY JURISDICTION. 

WHEN THE CRASH OCCURRED, THE PLANE WAS MANNED BY A PILOT, A CO
PILOT, AND A STEWARDESS, AND WAS DEPARTING CLEVELAND ON A CHARTER
FLIGHT TO PORTLAND, MAINE, WHERE IT WAS TO PICK UP PASSENGERS AND THEN
CONTINUE TO WHITE PLAINS, NEW YORK.  AFTER BEING CLEARED FOR TAKEOFF BY
THE RESPONDENT DICKEN, WHO WAS THE FEDERAL AIR TRAFFIC CONTROLLER AT
THE AIRPORT, THE PLANE TOOK OFF, BECOMING AIRBORNE AT ABOUT HALF THE
DISTANCE DOWN THE RUNWAY.  THE TAKEOFF FLUSHED THE SEAGULLS ON THE
RUNWAY, AND THEY ROSE INTO THE AIRSPACE DIRECTLY AHEAD OF THE ASCENDING
PLANE.  INGESTION OF THE BIRDS INTO THE PLANE'S JET ENGINES CAUSED AN
ALMOST TOTAL LOSS OF POWER.  DESCENDING BACK TOWARD THE RUNWAY IN A
SEMI-STALLED CONDITION, THE PLANE VEERED SLIGHTLY TO THE LEFT, STRUCK A
PORTION OF THE AIRPORT PERIMETER FENCE AND THE TOP OF A NEARBY PICKUP
TRUCK, AND THEN SETTLED IN LAKE ERIE JUST OFF THE END OF THE RUNWAY AND
LESS THAN ONE-FIFTH OF A STATUTE MILE OFFSHORE.  THERE WERE NO INJURIES
TO THE CREW, BUT THE AIRCRAFT SOON SANK AND BECAME A TOTAL LOSS. 

INVOKING FEDERAL ADMIRALITY JURISDICTION UNDER 28 U.S.C. 1333(1),
/1/  THE PETITIONERS BROUGHT THIS SUIT FOR DAMAGES IN THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF OHIO AGAINST DICKEN AND THE OTHER
RESPONDENTS, /2/  ALLEGING THAT THE CRASH HAD BEEN CAUSED BY THE
RESPONDENTS' NEGLIGENT FAILURE TO KEEP THE RUNWAY FREE OF THE BIRDS OR
TO GIVE ADEQUATE WARNING OF THEIR PRESENCE.  /3/  THE DISTRICT COURT,
IN AN UNREPORTED OPINION, HELD THAT THE SUIT WAS NOT COGNIZABLE IN
ADMIRALTY AND DISMISSED THE COMPLAINT FOR LACK OF SUBJECT MATTER
JURISDICTION. 

RELYING PRIMARILY ON THE SIXTH CIRCUIT PRECEDENT OF CHAPMAN V. CITY
OF GROSSE POINTE FARMS, 385 F.2D 962 (1967), THE DISTRICT COURT HELD
THAT ADMIRALTY JURISDICTION OVER TORTS MAY PROPERLY BE INVOKED ONLY
WHEN TWO CRITERIA ARE MET:  (1) THE LOCALITY WHERE THE ALLEGED TORTIOUS
WRONG OCCURRED MUST HAVE BEEN ON NAVIGABLE WATERS; AND (2) THERE MUST
HAVE BEEN A RELATIONSHIP BETWEEN THE WRONG AND SOME MARITIME SERVICE,
NAVIGATION, OR COMMERCE ON NAVIGABLE WATERS.  THE DISTRICT COURT FOUND
THAT THE ALLEGATIONS OF THE PETITIONERS' COMPLAINT SATISFIED NEITHER OF
THESE CRITERIA.  WITH RESPECT TO THE LOCALITY OF THE ALLEGED WRONG, THE
COURT STATED THAT "THE ALLEGED NEGLIGENCE BECAME OPERATIVE UPON THE
AIRCRAFT WHILE IT WAS OVER THE LAND; AND IN THIS SENSE THE 'IMPACT' OF
THE ALLEGED NEGLIGENCE OCCURRED WHEN THE GULLS DISABLED THE PLANE'S
ENGINES (OVER THE LAND) . . . FROM THIS POINT ON THE PLANE WAS DISABLED
AND WAS CAUSED TO FALL.  WHETHER IT CAME DOWN UPON LAND OR UPON WATER
WAS LARGELY FORTUITOUS."  ALTERNATIVELY, THE COURT CONCLUDED THAT THE
WRONG BORE NO RELATIONSHIP TO MARITIME SERVICE, NAVIGATION, OR
COMMERCE: 

     "ASSUMING . . . THAT AIR COMMERCE BEARS SOME RELATIONSHIP TO

  MARITIME COMMERCE WHEN THE FORMER IS CARRIED OUT OVER NAVIGABLE

WATERS, THE RELEVANT CIRCUMSTANCES HERE WERE UNCONNECTED WITH THE

  MARITIME FACETS OF AIR COMMERCE.  THE CLAIMED 'WRONG' IN THIS

  CASE WAS THE ALLEGED FAILURE TO KEEP THE RUNWAY FREE OF BIRDS AND

  THE FAILURE TO ADEQUATELY WARN THE PILOTS OF THEIR PRESENCE UPON

  THE END OF THE RUNWAY.  WHEN THE ALLEGED NEGLIGENCE OCCURRED, AND

  WHEN IT BECAME OPERATIVE UPON THE AIRCRAFT, ALL THE PARTIES WERE

  ENGAGED IN FUNCTIONS COMMON TO ALL AIR COMMERCE, WHETHER OVER

  LAND OR OVER SEA. 

     " . . . THUS, THE CONCLUSION HERE MUST BE THAT THE OPERATIVE

  FACTS OF THE CLAIM IN THIS CASE ARE CONCERNED WITH THE

  LAND-CONNECTED ASPECTS OF AIR COMMERCE, NAMELY, THE MAINTENANCE

  AND OPERATION OF AN AIRPORT LOCATED ON THE LAND AND THE DANGERS

  ENCOUNTERED BY AN AIRCRAFT WHEN USING ITS RUNWAYS FOR TAKE-OFF." 

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED ON THE GROUND
THAT "THE ALLEGED TORT IN THIS CASE OCCURRED ON LAND BEFORE THE
AIRCRAFT REACHED LAKE ERIE . . . ."  448 F.2D 151, 154 (1971).  HENCE,
THAT COURT FOUND IT "NOT NECESSARY TO CONSIDER THE QUESTION OF MARITIME
RELATIONSHIP OR NEXUS DISCUSSED BY THIS COURT IN (CHAPMAN)."  IBID.  WE
GRANTED CERTIORARI TO CONSIDER A SEEMINGLY IMPORTANT QUESTION AFFECTING
THE JURISDICTION OF THE FEDERAL COURTS.  405 U.S. 915 (1972). 

        I 

DETERMINATION OF THE QUESTION WHETHER A TORT IS "MARITIME" AND THUS
WITHIN THE ADMIRALITY JURISDICTION OF THE FEDERAL COURTS HAS
TRADITIONALLY DEPENDED UPON THE LOCALITY OF THE WRONG.  IF THE WRONG
OCCURRED ON NAVIGABLE WATERS, THE ACTION IS WITHIN ADMIRALTY
JURISDICTION; IF THE WRONG OCCURRED ON LAND, IT IS NOT.  AS EARLY AS
1813, MR. JUSTICE STORY, ON CIRCUIT, STATED THIS GENERAL PRINCIPLE: 

"IN REGARD TO TORTS I HAVE ALWAYS UNDERSTOOD, THAT THE JURISDICTION
OF THE ADMIRALITY IS EXCLUSIVELY DEPENDENT UPON THE LOCALITY OF THE
ACT.  THE ADMIRALITY HAS NOT, AND NEVER (I BELIEVE) DELIBERATELY
CLAIMED TO HAVE ANY JURISDICTION OVER TORTS, EXCEPT SUCH AS ARE
MARITIME TORTS, THAT IS, SUCH AS ARE COMMITTED ON THE HIGH SEAS, OR ON
WATERS WITHIN THE EBB AND FLOW OF THE TIDE."  THOMAS V. LANE, 23
F.CAS.  957, 960 (NO. 13,902) (CC ME.).  SEE ALSO DE LOVIO V. BOIT, 7
F.CAS.  418, 444 (NO. 3,776) (CC MASS. 1815); PHILADELPHIA, W. & B.R.
CO. V. PHILADELPHIA & HAVRE DE GRACE STEAM TOWBOAT CO., 23 HOW.  209,
215 (1860).  LATER, THIS LOCALITY TEST WAS EXPANDED TO INCLUDE NOT ONLY
TIDEWATERS, BUT ALL NAVIGABLE WATERS, INCLUDING LAKES AND RIVERS.  THE
GENESEE CHIEF V. FITZHUGH, 12 HOW.  443 (1852). 

IN THE PLYMOUTH, 3 WALL.  20, 35, 36 (1866), THE COURT ESSAYED A
DEFINITION OF WHEN A TORT IS "LOCATED" ON NAVIGABLE WATERS: 

"(THE WRONG AND INJURY COMPLAINED OF MUST HAVE BEEN COMMITTED WHOLLY
UPON THE HIGH SEAS OR NAVIGABLE WATERS, OR, AT LEAST, THE SUBSTANCE AND
CONSUMMATION OF THE SAME MUST HAVE TAKEN PLACE UPON THESE WATERS TO BE
WITHIN THE ADMIRALITY JURISDICTION . . . . 

     " . . . THE JURISDICTION OF THE ADMIRALITY OVER MARITIME TORTS

  DOES NOT DEPEND UPON THE WRONG HAVING BEEN COMMITTED ON BOARD THE

  VESSEL, BUT UPON ITS HAVING BEEN COMMITTED UPON THE HIGH SEAS OR

  OTHER NAVIGABLE WATERS. 

     " . . . EVERY SPECIES OF TORT, HOWEVER OCCURRING, AND WHETHER

  ON BOARD A VESSEL OR NOT, IF UPON THE HIGH SEAS OR NAVIGABLE

  WATERS, IS OF ADMIRALITY COGNIZANCE." 

THE COURT HAS OFTEN REITERATED THIS RULE OF LOCALITY.  /4/ AS RECENTLY
AS LAST TERM, IN VICTORY CARRIERS, INC. V. LAW, 404 U.S. 202, 205, WE
REPEATED THAT "(THE HISTORIC VIEW OF THIS COURT HAS BEEN THAT THE
MARITIME TORT JURISDICTION OF THE FEDERAL COURTS IS DETERMINED BY THE
LOCALITY OF THE ACCIDENT AND THAT MARITIME LAW GOVERNS ONLY THOSE TORTS
OCCURRING ON THE NAVIGABLE WATERS OF THE UNITED STATES." 

THIS LOCALITY TEST, OF COURSE, WAS ESTABLISHED AND GREW UP IN AN ERA
WHEN IT WAS DIFFICULT TO CONCEIVE OF A TORTIOUS OCCURRENCE ON NAVIGABLE
WATERS OTHER THAN IN CONNECTION WITH A WATERBORNE VESSEL.  INDEED, FOR
THE TRADITIONAL TYPES OF MARITIME TORTS, THE TRADITIONAL TEST HAS
WORKED QUITE SATISFACTORILY.  AS A LEADING ADMIRALITY TEXT HAS PUT THE
MATTER: 

"IT SHOULD BE STRESSED THAT THE IMPORTANT CASES IN ADMIRALITY ARE
NOT THE BORDERLINE CASES ON JURISDICTION; THESE MAY EXERCISE A PERVERSE
FASCINATION IN THE OCCASION THEY AFFORD FOR ELABORATE CASUISTRY, BUT
THE MAIN BUSINESS OF THE (ADMIRALITY) COURT INVOLVES CLAIMS FOR CARGO
DAMAGE, COLLISION, SEAMEN'S INJURIES AND THE LIKE-- ALL WELL AND
COMFORTABLY WITHIN THE CIRCLE, AND FAR FROM THE PENUMBRA."  G. GILMORE
& C. BLACK, THE LAW OF ADMIRALTY 24 N. 88 (1957). 

BUT IT IS THE PERVERSE AND CASUISTIC BORDERLINE SITUATIONS THAT HAVE
DEMONSTRATED SOME OF THE PROBLEMS WITH THE LOCALITY TEST OF MARITIME
TORT JURISDICTION.  IN SMITH & SON V. TAYLOR, 276 U.S. 179 (1928), FOR
INSTANCE, A LONGSHOREMAN UNLOADING A VESSEL WAS STANDING ON THE PIER
WHEN HE WAS STRUCK BY A CARGO-LADEN SLING FROM THE SHIP AND KNOCKED
INTO THE WATER WHERE HE WAS LATER FOUND DEAD.  THIS COURT HELD THAT
THERE WAS NO ADMIRALTY JURISDICTION IN THAT CASE, DESPITE THE FACT THAT
THE LONGSHOREMAN WAS KNOCKED INTO THE WATER, BECAUSE THE BLOW BY THE
SLING WAS WHAT GAVE RISE TO THE CAUSE OF ACTION, AND IT TOOK EFFECT ON
THE LAND.  HENCE, THE COURT CONCLUDED, "(THE SUBSTANCE AND CONSUMMATION
OF THE OCCURRENCE WHICH GAVE RISE TO THE CAUSE OF ACTION TOOK PLACE ON
LAND."  276 U.S.,AT 182.  IN THE CONVERSE FACTUAL SETTING, HOWEVER,
WHERE A LONGSHOREMAN WORKING ON THE DECK OF A VESSEL WAS STRUCK BY A
HOIST AND KNOCKED ONTO THE PIER, THE COURT UPHELD ADMIRALTY
JURISDICTION BECAUSE THE CAUSE OF ACTION AROSE ON THE VESSEL.  MINNIE
V. PORT HURON TERMINAL CO., 295 U.S. 647 (1935).  SEE ALSO THE ADMIRAL
PEOPLES, 295 U.S. 649 (1935). 

OTHER SERIOUS DIFFICULTIES WITH THE LOCALITY TEST ARE ILLUSTRATED BY
CASES WHERE THE MARITIME LOCALITY OF THE TORT IS CLEAR, BUT WHERE THE
INVOCATION OF ADMIRALITY JURISDICTION SEEMS ALMOST ABSURD.  IF A
SWIMMER AT A PUBLIC BEACH IS INJURED BY ANOTHER SWIMMER OR BY A
SUBMERGED OBJECT ON THE BOTTOM, OR IF A PIECE OF MACHINERY SUSTAINS
WATER DAMAGE FROM BEING DROPPED INTO A HARBOR BY A LAND-BASED CRANE, A
LITERAL APPLICATION OF THE LOCALITY TEST INVOKES NOT ONLY THE
JURISDICTION OF THE FEDERAL COURTS, BUT THE FULL PANOPLY OF THE
SUBSTANTIVE ADMIRALTY LAW AS WELL.  IN CASES SUCH AS THESE, SOME COURTS
HAVE ADHERED TO A MECHANICAL APPLICATION OF THE STRICT LOCALITY RULE
AND HAVE SUSTAINED ADMIRALTY JURISDICTION DESPITE THE LACK OF ANY
CONNECTION BETWEEN THE WRONG AND TRADITIONAL FORMS OF MARITIME COMMERCE
AND NAVIGATION.  /5/  OTHER COURTS, HOWEVER, HAVE HELD IN SUCH
SITUATIONS THAT A MARITIME LOCALITY IS NOT SUFFICIENT TO BRING THE TORT
WITHIN FEDERAL ADMIRALTY JURISDICTION, BUT THAT THERE MUST ALSO BE A
MARITIME NEXUS-- SOME RELATIONSHIP BETWEEN THE TORT AND TRADITIONAL
MARITIME ACTIVITIES, INVOLVING NAVIGATION OR COMMERCE ON NAVIGABLE
WATERS.  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT, FOR INSTANCE, IN
THE CHAPMAN CASE, WHERE A SWIMMER AT A PUBLIC BEACH WAS INJURED, HELD
THAT 

"(ABSENT SUCH A RELATIONSHIP, ADMIRALTY JURISDICTION WOULD DEPEND
ENTIRELY UPON THE FACT THAT A TORT OCCURRED ON NAVIGABLE WATERS; A FACT
WHICH IN AND OF ITSELF, IN LIGHT OF THE HISTORICAL JUSTIFICATION FOR
FEDERAL ADMIRALTY JURISDICTION, IS QUITE IMMATERIAL TO ANY MEANINGFUL
INVOCATION OF THE JURISDICTION OF ADMIRALTY COURTS."  385 F.2D,AT 966. 
/6/ 

AS EARLY AS 1850, ADMIRALTY SCHOLARS BEGAN TO SUGGEST THAT A
TRADITIONAL MARITIME ACTIVITY, AS WELL AS A MARITIME LOCALITY, IS
NECESSARY TO INVOKE ADMIRALTY JURISDICTION OVER TORTS.  IN THAT YEAR,
JUDGE BENEDICT EXPRESSED HIS "CELEBRATED DOUBT"  /7/  AS TO WHETHER
SUCH JURISDICTION DID NOT DEPEND, IN ADDITION TO A MARITIME LOCALITY,
UPON SOME "RELATION OF THE PARTIES TO A SHIP OR VESSEL, EMBRACING ONLY
THOSE TORTIOUS VIOLATIONS) OF MARITIME RIGHT AND DUTY WHICH OCCUR IN
VESSELS TO WHICH THE ADMIRALTY JURISDICTION, IN CASES OF CONTRACTS,
APPLIES."  E. BENEDICT, THE AMERICAN ADMIRALTY 173 (1850).  MORE
RECENTLY, COMMENTATORS HAVE ACTIVELY CRITICIZED THE RULE OF LOCALITY AS
THE SOLE CRITERION FOR ADMIRALTY JURISDICTION, AND HAVE RECOMMENDED
ADOPTION OF A MARITIME RELATIONSHIP REQUIREMENT AS WELL.  SEE 7A J.
MOORE, FEDERAL PRACTICE, ADMIRALTY PARAS. .325(3) AND .325(5) (2D ED.
1972); BLACK, ADMIRALTY JURISDICTION:  CRITIQUE AND SUGGESTIONS, 50
COL.L.REV.  259, 264 (1950).  IN 1969, THE AMERICAN LAW INSTITUTE'S
STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS
(ALI STUDY) ALSO MADE THAT RECOMMENDATION, STATING (AT 233): 

"IT IS HARD TO THINK OF ANY REASON WHY ACCESS TO FEDERAL COURT
SHOULD BE ALLOWED WITHOUT REGARD TO AMOUNT IN CONTROVERSY OR
CITIZENSHIP OF THE PARTIES MERELY BECAUSE OF THE FORTUITY THAT A TORT
OCCURRED ON NAVIGABLE WATERS, RATHER THAN ON OTHER WATERS OR ON LAND. 
THE FEDERAL COURTS SHOULD NOT BE BURDENED WITH EVERY CASE OF AN INJURED
SWIMMER." 

DESPITE THE BROAD LANGUAGE OF CASES LIKE THE PLYMOUTH, 3 WALL.  20
(1866), THE FACT IS THAT THIS COURT HAS NEVER EXPLICITLY HELD THAT A
MARITIME LOCALITY IS THE SOLE TEST OF ADMIRALTY TORT JURISDICTION.  THE
LAST TIME THE COURT CONSIDERED THE MATTER, THE QUESTION WAS LEFT OPEN. 
ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52 (1914).  IN THAT CASE,
A STEVEDORE BROUGHT SUIT FOR INJURIES SUSTAINED ON BOARD A VESSEL WHILE
LOADING AND STOWING COPPER.  THE PETITIONER ADMITTED THE MARITIME
LOCALITY OF THE TORT, BUT CONTENDED THAT NO MARITIME RELATIONSHIP WAS
PRESENT.  THE COURT SUSTAINED FEDERAL ADMIRALTY JURISDICTION, BUT FOUND
THAT IT WAS NOT NECESSARY TO DECIDE WHETHER LOCALITY ALONE IS
SUFFICIENT: 

"EVEN IF IT BE ASSUMED THAT THE REQUIREMENT AS TO LOCALITY IN TORT
CASES, WHILE INDISPENSABLE, IS NOT NECESSARILY EXCLUSIVE, STILL IN THE
PRESENT CASE THE WRONG WHICH WAS THE SUBJECT OF THE SUIT WAS, WE THINK,
OF A MARITIME NATURE AND HENCE THE DISTRICT COURT, FROM ANY POINT OF
VIEW, HAD JURISDICTION . . . . 

     " . . . IF MORE IS REQUIRED THAN THE LOCALITY OF THE WRONG IN

  ORDER TO GIVE THE COURT JURISDICTION, THE RELATION OF THE WRONG

  TO MARITIME SERVICE, TO NAVIGATION AND TO COMMERCE ON NAVIGABLE

  WATERS, WAS QUITE SUFFICIENT."  ID., AT 61, 62. 

SINCE THE TIME OF THAT DECISION THE COURT HAS NOT SQUARELY DEALT WITH
THE QUESTION LEFT OPEN THERE, ALTHOUGH OPINIONS IN SEVERAL CASES HAVE
DISCUSSED THE MARITIME OR NON-MARITIME NATURE OF THE TORT AND ITS
RELATIONSHIP TO MARITIME NAVIGATION.  IN RODRIQUE V. AETNA CASUALTY &
SURETY CO., 395 U.S. 352 (1969), FOR INSTANCE, WE HELD THAT ADMIRALTY
HAD NO JURISDICTION OF WRONGFUL-DEATH ACTIONS UNDER THE DEATH ON THE
HIGH SEAS ACT, 41 STAT. 537, 46 U.S.C. 761 ET SEQ., ARISING OUT OF
ACCIDENTS ON ARTIFICIAL ISLAND DRILLING RIGS IN THE GULF OF MEXICO MORE
THAN A MARINE LEAGUE OFFSHORE.  WE RELIED IN THAT CASE ON THE FACT THAT
THE ACCIDENTS BORE NO RELATION TO ANY NAVIGATIONAL FUNCTION: 

     "THE ACCIDENTS IN QUESTION HERE INVOLVED NO COLLISION WITH A

  VESSEL, AND THE STRUCTURES WERE NOT NAVIGATIONAL AIDS.  THEY WERE

  ISLANDS, ALBEIT ARTIFICIAL ONES, AND THE ACCIDENTS HAD NO MORE

  CONNECTION WITH THE ORDINARY STUFF OF ADMIRALTY THAN DO ACCIDENTS

  ON PIERS."  ID., AT 360. 

SEE ALSO THE RAITHMOOR, 241 U.S. 166, 176-177 (1916); CHELENTIS V.
LUCKENBACH S.S. CO., 247 U.S. 372, 382 (1918); GREAT LAKES DREDGE &
DOCK CO. V. KIEREJEWSKI, 261 U.S. 479, 481 (1923); ROBINS DRY DOCK &
REPAIR CO. V. DAHL, 266 U.S. 449, 457 (1925); LONDON GUARANTEE &
ACCIDENT CO. V. INDUSTRIAL ACCIDENT COMM'N, 279 U.S. 109, 123 (1929). 

APART FROM THE DIFFICULTIES INVOLVED IN TRYING TO APPLY THE LOCALITY
RULE AS THE SOLE TEST OF ADMIRALTY TORT JURISDICTION, ANOTHER
INDICTMENT OF THAT TEST IS TO BE FOUND IN THE NUMBER OF TIMES THE
FEDERAL COURTS AND THE CONGRESS, IN THE INTERESTS OF JUSTICE, HAVE HAD
TO CREATE EXCEPTIONS TO IT IN THE CONVERSE SITUATION-- I.E., WHEN THE
TORT HAS NO MARITIME LOCALITY, BUT DOES BEAR A RELATIONSHIP TO MARITIME
SERVICE, COMMERCE, OR NAVIGATION.  SEE 7A J. MOORE, FEDERAL PRACTICE,
ADMIRALTY PARA. .325(4) (2D ED. 1972).  FOR EXAMPLE, IN O'DONNELL V.
GREAT LAKES DREDGE & DOCK CO., 318 U.S. 36 (1943), THE COURT SUSTAINED
THE APPLICATION OF THE JONES ACT, 41 STAT. 1007, 46 U.S.C. 688, TO
INJURIES TO A SEAMAN ON LAND, BECAUSE OF THE SEAMAN'S CONNECTION WITH
MARITIME COMMERCE.  WE RELIED IN THAT CASE ON AN ANALOGY TO MAINTENANCE
AND CURE: 

"(THE MARITIME LAW, AS RECOGNIZED IN THE FEDERAL COURTS, HAS NOT IN
GENERAL ALLOWED RECOVERY FOR PERSONAL INJURIES OCCURRING ON LAND.  BUT
THERE IS AN IMPORTANT EXCEPTION TO THIS GENERALIZATION IN THE CASE OF
MAINTENANCE AND CURE.  FROM ITS DAWN, THE MARITIME LAW HAS RECOGNIZED
THE SEAMAN'S RIGHT TO MAINTENANCE AND CURE FOR INJURIES SUFFERED IN THE
COURSE OF HIS SERVICE TO HIS VESSEL, WHETHER OCCURRING ON SEA OR ON
LAND."  ID., AT 41-42.  SIMILARLY, THE DOCTRINE OF UNSEAWORTHINESS HAS
BEEN EXTENDED TO PERMIT A SEAMAN OR A LONGSHOREMAN TO RECOVER FROM A
SHIPOWNER FOR INJURIES SUSTAINED WHOLLY ON LAND, SO LONG AS THOSE
INJURIES WERE CAUSED BY DEFECTS IN THE SHIP OR ITS GEAR.  GUTIERREZ V.
WATERMAN S.S. CORP., 373 U.S. 206, 214-215 (1963).  SEE ALSO STRIKA V.
NETHERLANDS MINISTRY OF TRAFFIC, 185 F.2D 555 (CA2 1950). 

CONGRESS, TOO, HAS EXTENDED ADMIRALTY JURISDICTION PREDICATED ON THE
RELATION OF THE WRONG TO MARITIME ACTIVITIES, REGARDLESS OF THE
LOCALITY OF THE TORT.  IN THE EXTENSION OF ADMIRALTY JURISDICTION ACT,
62 STAT. 496, 46 U.S.C. 740, ENACTED IN 1948, CONGRESS PROVIDED: 

     "THE ADMIRALTY AND MARITIME JURISDICTION OF THE UNITED STATES

  SHALL EXTEND TO AND INCLUDE ALL CASES OF DAMAGE OR INJURY, TO

  PERSON OR PROPERTY, CAUSED BY A VESSEL ON NAVIGABLE WATER,

NOTWITHSTANDING THAT SUCH DAMAGE OR INJURY BE DONE OR CONSUMMATED

  ON LAND." 

THIS ACT WAS PASSED SPECIFICALLY TO OVERRULE CASES, SUCH AS THE
PLYMOUTH, SUPRA, HOLDING THAT ADMIRALTY DOES NOT PROVIDE A REMEDY FOR
DAMAGE DONE TO LAND STRUCTURES BY SHIPS ON NAVIGABLE WATERS.  VICTORY
CARRIERS, INC. V. LAW, 404 U.S.,AT 209 N. 8; GUTIERREZ V. WATERMAN S.S.
CORP., 373 U.S.,AT 209-210.  /8/ 

IN SUM, THERE HAS EXISTED OVER THE YEARS A JUDICIAL, LEGISLATIVE,
AND SCHOLARLY RECOGNITION THAT, IN DETERMINING WHETHER THERE IS
ADMIRALTY JURISDICTION OVER A PARTICULAR TORT OR CLASS OF TORTS,
RELIANCE ON THE RELATIONSHIP OF THE WRONG TO TRADITIONAL MARITIME
ACTIVITY IS OFTEN MORE SENSIBLE AND MORE CONSONANT WITH THE PURPOSES OF
MARITIME LAW THAN IS A PURELY MECHANICAL APPLICATION OF THE LOCALITY
TEST. 

 II 

ONE AREA IN WHICH LOCALITY AS THE EXCLUSIVE TEST OF ADMIRALTY TORT
JURISDICTION HAS GIVEN RISE TO SERIOUS PROBLEMS IN APPLICATION IS THAT
OF AVIATION.  FOR THE REASONS DISCUSSED ABOVE AND THOSE TO BE
DISCUSSED, WE HAVE CONCLUDED THAT MARITIME LOCALITY ALONE IS NOT A
SUFFICIENT PREDICATE FOR ADMIRALTY JURISDICTION IN AVIATION TORT
CASES. 

IN ONE OF THE EARLIEST AIRCRAFT CASES BROUGHT IN ADMIRALTY, THE
CRAWFORD BROS. NO. 2, 215 F. 269, 271 (WD WASH. 1914), IN WHICH A LIBEL
IN REM FOR REPAIRS WAS BROUGHT AGAINST AN AIRPLANE THAT HAD CRASHED
INTO PUGET SOUND, THE FEDERAL COURT DECLINED TO ASSUME JURISDICTION,
REASONING THAT AN AIRPLANE COULD NOT BE CHARACTERIZED AS A MARITIME
VESSEL.  THE CRAWFORD BROS. WAS FOLLOWED BY A NUMBER OF CASES DEALING
WITH SEAPLANES, IN WHICH THE COURTS RESTRICTED ADMIRALTY JURISDICTION
TO OCCURRENCES INVOLVING PLANES THAT WERE AFLOAT ON NAVIGABLE WATERS. 
/9/  CONTINUING DOUBT AS TO THE APPLICABILITY OF ADMIRALTY LAW TO
AIRCRAFT WAS ILLUSTRATED BY CASES IN THE 1930'S AND 1940'S HOLDING THAT
AIRCRAFT OWNERS COULD NOT INVOKE THE BENEFITS OF THE MARITIME DOCTRINE
OF LIMITATION OF LIABILITY, /10/  AND THAT CRIMES COMMITTED ON BOARD
AIRCRAFT FLYING OVER INTERNATIONAL WATERS WERE NOT PUNISHABLE UNDER
CRIMINAL STATUTES PROSCRIBING ACTS COMMITTED ON THE HIGH SEAS.  /11/
MOREOVER, CONGRESS EXEMPTED ALL AIRCRAFT FROM CONFORMITY WITH UNITED
STATES NAVIGATION AND SHIPPING LAWS.  /12/ 

THE FIRST MAJOR EXTENSION OF ADMIRALTY JURISDICTION TO LAND-BASED
AIRCRAFT CAME IN WRONGFUL-DEATH ACTIONS ARISING OUT OF AIRCRAFT CRASHES
AT SEA AND BROUGHT UNDER THE DEATH ON THE HIGH SEAS ACT, 46 U.S.C. 761
ET SEQ. THE FEDERAL COURTS TOOK JURISDICTION OF SUCH CASES BECAUSE THE
LITERAL PROVISIONS OF THAT STATUTE APPEARED TO BE CLEARLY APPLICABLE. 
THE DEATH ON THE HIGH SEAS ACT, ENACTED IN 1920, PROVIDES: 

     "WHENEVER THE DEATH OF A PERSON SHALL BE CAUSED BY WRONGFUL

  ACT, NEGLECT, OR DEFAULT OCCURRING ON THE HIGH SEAS BEYOND A

  MARINE LEAGUE FROM THE SHORE OF ANY STATE, OR THE DISTRICT OF

  COLUMBIA, OR THE TERRITORIES OR DEPENDENCIES OF THE UNITED

  STATES, THE PERSONAL REPRESENTATIVE OF THE DECEDENT MAY MAINTAIN

  A SUIT FOR DAMAGES IN THE DISTRICT COURTS OF THE UNITED STATES,

  IN ADMIRALITY . . . . " 

THE FIRST AVIATION CASE BROUGHT PURSUANT TO THE DEATH ON THE HIGH
SEAS ACT WAS APPARENTLY CHOY V. PAN-AMERICAN AIRWAYS CO., 1941 A.M.C.
483 (SDNY), WHERE DEATH WAS CAUSED BY THE CRASH OF A SEAPLANE INTO THE
PACIFIC OCEAN DURING A TRANSOCEANIC FLIGHT.  THE DISTRICT COURT UPHELD
ADMIRALTY JURISDICTION ON THE GROUND THAT THE LANGUAGE OF THE ACT WAS
BROAD AND MADE NO REFERENCE TO SURFACE VESSELS.  ACCORDING TO THE
COURT: 

"THE STATUTE CERTAINLY INCLUDES THE PHRASE 'ON THE HIGH SEAS' BUT
THERE IS NO REASON WHY THIS SHOULD MAKE THE LAW OPERABLE ONLY ON A
HORIZONTAL PLANE.  THE VERY NEXT PHRASE 'BEYOND A MARINE LEAGUE FROM
THE SHORE OF ANY STATE' MAY BE SAID TO INCLUDE A VERTICAL SENSE AND
ANOTHER DIMENSION."  ID., AT 484.  SINCE CHOY, MANY ACTIONS FOR
WRONGFUL DEATH ARISING OUT OF AIRCRAFT CRASHES INTO THE HIGH SEAS
BEYOND ONE MARINE LEAGUE FROM SHORE HAVE BEEN BROUGHT UNDER THE DEATH
ON THE HIGH SEAS ACT, AND FEDERAL JURISDICTION HAS CONSISTENTLY BEEN
SUSTAINED IN THOSE CASES.  /13/  INDEED, IT MAY BE CONSIDERED AS
SETTLED TODAY THAT THIS SPECIFIC FEDERAL STATUTE GIVES THE FEDERAL
ADMIRALTY COURTS JURISDICTION OF SUCH WRONGFUL-DEATH ACTIONS. 

IN RECENT YEARS, HOWEVER, SOME FEDERAL COURTS HAVE BEEN PERSUADED IN
AVIATION CASES TO EXTEND THEIR ADMIRALTY JURISDICTION BEYOND THE
STATUTORY COVERAGE OF THE DEATH ON THE HIGH SEAS ACT.  SEVERAL CASES
HAVE HELD THAT ACTIONS FOR PERSONAL INJURIES ARISING OUT OF AIRCRAFT
CRASHES INTO THE HIGH SEAS MORE THAN ONE LEAGUE OFF SHORE OR ARISING
OUT OF AIRCRAFT ACCIDENTS IN THE AIRSPACE OVER THE HIGH SEAS WERE
COGNIZABLE IN ADMIRALTY BECAUSE OF THEIR MARITIME LOCALITY, ALTHOUGH
THEY WERE NOT WITHIN THE SCOPE OF THE DEATH ON THE HIGH SEAS ACT OR ANY
OTHER FEDERAL LEGISLATION.  /14/  THESE CASES, AS WELL AS MOST OF THOSE
BROUGHT UNDER THE DEATH ON THE HIGH SEAS ACT, INVOLVED TORTS BOTH WITH
A MARITIME LOCALITY, IN THAT THE ALLEGED NEGLIGENCE BECAME OPERATIVE
WHILE THE AIRCRAFT WAS ON OR OVER NAVIGABLE WATERS, AND ALSO WITH SOME
RELATIONSHIP TO MARITIME COMMERCE, AT LEAST INSOFAR AS THE AIRCRAFT WAS
BEYOND STATE TERRITORIAL WATERS AND PERFORMING A FUNCTION--
TRANSOCEANIC CROSSING-- THAT PREVIOUSLY WOULD HAVE BEEN PERFORMED BY
WATERBORNE VESSELS.  /15/ 

BUT A FURTHER EXTENSION OF ADMIRALTY JURISDICTION WAS CREATED WHEN
COURTS BEGAN TO SUSTAIN THAT JURISDICTION IN SITUATIONS SUCH AS THE ONE
NOW BEFORE US-- WHEN THE CLAIM AROSE OUT OF AN AIRCRAFT ACCIDENT THAT
OCCURRED ON OR OVER NAVIGABLE WATERS WITHIN STATE TERRITORIAL LIMITS,
AND WHEN THE AIRCRAFT WAS NOT ON A TRANSOCEANIC FLIGHT.  APPARENTLY,
THE FIRST SUCH CASE GREW OUT OF A 1960 CRASH OF A COMMERCIAL JET, BOUND
FROM BOSTON TO PHILADELPHIA, THAT COLLIDED WITH A FLOCK OF BIRDS OVER
THE AIRPORT RUNWAY AND CRASHED INTO BOSTON HARBOR WITHIN ONE MINUTE
AFTER TAKEOFF.  WEINSTEIN V. EASTERN AIRLINES, INC., 316 F.2D 758 (CA3
1963).  IN DECIDING THAT A WRONGFUL-DEATH ACTION ARISING FROM THIS
CRASH WAS WITHIN ADMIRALTY JURISDICTION, THE COURT OF APPEALS FOR THE
THIRD CIRCUIT APPLIED THE STRICT LOCALITY RULE AND FOUND THAT THE TORT
HAD A MARITIME LOCALITY.  THE COURT FURTHER JUSTIFIED THE INVOCATION OF
ADMIRALTY JURISDICTION IN THAT CASE BY AN ANALOGY TO THE DEATH ON THE
HIGH SEAS ACT: 

"IF, AS IT HAS BEEN HELD, A TORT CLAIM ARISING OUT OF THE CRASH OF
AN AIRPLANE BEYOND THE ONE MARINE LEAGUE LINE IS WITHIN THE
JURISDICTION OF ADMIRALTY, THEN A FORTIORI A CRASH OF AN AIRCRAFT JUST
SHORT OF THAT LINE BUT STILL WITHIN THE NAVIGABLE WATERS IS WITHIN THAT
JURISDICTION AS WELL."  ID., AT 765.  THERE HAVE BEEN A FEW SUBSEQUENT
CASES TO LIKE EFFECT.  /16/  TO THE CONTRARY, OF COURSE, IS THE
DECISION OF THE COURT OF APPEALS FOR THE SIXTH CIRCUIT IN THE PRESENT
CASE. 

        III 

THESE LATTER CASES GRAPHICALLY DEMONSTRATE THE PROBLEMS INVOLVED IN
APPLYING A LOCALITY-ALONE TEST OF ADMIRALTY TORT JURISDICTION TO THE
CRASHES OF AIRCRAFT.  AIRPLANES, UNLIKE WATERBORNE VESSELS, ARE NOT
LIMITED BY PHYSICAL BOUNDARIES AND CAN AND DO OPERATE OVER BOTH LAND
AND NAVIGABLE BODIES OF WATER.  AS PROFESSOR MOORE AND HIS COLLEAGUE
PROFESSOR PELAEZ HAVE STATED, "IN BOTH DEATH AND INJURY CASES . . . IT
IS EVIDENT THAT WHILE DISTINCTIONS BASED ON LOCALITY OFTEN ARE IN FACT
QUITE RELEVANT WHERE WATER VESSELS ARE CONCERNED, THEY ENTIRELY LOSE
THEIR SIGNIFICANCE WHERE AIRCRAFT, WHICH ARE NOT GEOGRAPHICALLY
RESTRAINED, ARE CONCERNED."  7A J. MOORE, FEDERAL PRACTICE, ADMIRALTY
PARA. .330(5), PP. 3772-3773 (2D ED. 1972).  IN FLIGHTS WITHIN THE
CONTINENTAL UNITED STATES, WHICH ARE PRINCIPALLY OVER LAND, THE FACT
THAT AN AIRCRAFT HAPPENS TO FALL IN NAVIGABLE WATERS, RATHER THAN ON
LAND, IS WHOLLY FORTUITOUS.  THE ALI STUDY, IN CRITICIZING THE
WEINSTEIN DECISION, OBSERVED: 

     "IF A PLANE TAKES OFF FROM BOSTON'S LOGAN AIRPORT BOUND FOR

  PHILADELPHIA, AND CRASHES ON TAKEOFF, IT MAKES LITTLE SENSE THAT

  THE NEXT OF KIN OF THE PASSENGERS KILLED SHOULD BE LEFT TO THEIR

  USUAL REMEDIES, ORDINARILY IN STATE COURT, IF THE PLANE CRASHES

  ON LAND, BUT THAT THEY HAVE ACCESS TO A FEDERAL COURT, AND THE

  DISTINCTIVE SUBSTANTIVE LAW OF ADMIRALTY APPLIES, IF THE WRECKED

  PLANE ENDS UP IN THE WATERS OF BOSTON HARBOR."  ALI STUDY 231. 

  /17/ 

MOREOVER, NOT ONLY IS THE LOCALITY TEST IN SUCH CASES WHOLLY
ADVENTITOUS, BUT IT IS SOMETIMES ALMOST IMPOSSIBLE TO APPLY WITH ANY
DEGREE OF CERTAINTY.  UNDER THE LOCALITY TEST, THE TORT "OCCURS" WHERE
THE ALLEGED NEGLIGENCE TOOK EFFECT, THE PLYMOUTH, SUPRA; SMITH & SON V.
TAYLOR, 276 U.S. 179 (1928); AND IN THE CASE OF AIRCRAFT THAT LOCUS IS
OFTEN MOST DIFFICULT TO DETERMINE. 

THE CASE BEFORE US PROVIDES A GOOD EXAMPLE OF THESE DIFFICULTIES. 
THE PETITIONERS CONTEND THAT SINCE THEIR AIRCRAFT CRASHED INTO THE
NAVIGABLE WATERS OF LAKE ERIE AND WAS TOTALLY DESTROYED WHEN IT SANK IN
THOSE WATERS, AND LOCALITY OF THE TORT, OR THE PLACE WHERE THE ALLEGED
NEGLIGENCE TOOK EFFECT, WAS THERE.  THE FACT THAT THE MAJOR DAMAGE TO
THEIR PLANE WOULD NOT HAVE OCCURRED IF IT HAD NOT LANDED IN THE LAKE
INDICATES, THEY SAY, THAT THE SUBSTANCE AND CONSUMMATION OF THE WRONG
TOOK PLACE IN NAVIGABLE WATERS.  THE RESPONDENTS, ON THE OTHER HAND,
ARGUE THAT THE ALLEGED NEGLIGENCE TOOK EFFECT WHEN THE PLANE COLLIDED
WITH THE BIRDS-- OVER LAND.  RELYING ON CASES SUCH AS SMITH & SON V.
TAYLOR, SUPRA, WHERE ADMIRALTY JURISDICTION WAS DENIED IN THE CASE OF A
LONGSHOREMAN STRUCK BY A SHIP'S SLING WHILE STANDING ON A PIER, AND
KNOCKED INTO THE WATER, THE RESPONDENTS CONTEND THAT A TORT "OCCURS" AT
THE POINT OF FIRST IMPACT OF THE ALLEGED NEGLIGENCE.  HERE, THEY SAY,
THE CAUSE OF ACTION AROSE AS SOON AS THE PLANE STRUCK THE BIRDS; FROM
THEN ON, THE PLANE WAS DESTINED TO FALL, AND WHETHER IT CAME DOWN ON
LAND OR WATER SHOULD NOT AFFECT "THE LOCALITY OF THE ACT."  SEE THOMAS
V. LANE, 23 F.CAS.,AT 960.     IN THE VIEW WE TAKE OF THE QUESTION
BEFORE US, WE NEED NOT DECIDE WHO HAS THE BETTER OF THIS DISPUTE.  IT
IS ENOUGH TO NOTE THAT EITHER POSITION GIVES RISE TO THE PROBLEMS
INHERENT IN APPLYING THE STRICT LOCALITY TEST OF ADMIRALTY TORT
JURISDICTION IN AVIATION ACCIDENT CASES.  THE PETITIONERS' ARGUMENT, IF
ACCEPTED, WOULD MAKE JURISDICTION DEPEND ON WHERE THE PLANE ENDED UP--
A CIRCUMSTANCE THAT COULD BE WHOLLY FORTUITOUS AND COMPLETELY UNRELATED
TO THE TORT ITSELF.  THE ANOMALY IS WELL ILLUSTRATED BY THE
HYPOTHETICAL CASE OF TWO AIRCRAFT COLLIDING AT A HIGH ALTITUDE, WITH
ONE CRASHING ON LAND AND THE OTHER IN A NAVIGABLE RIVER.  IF, ON THE
OTHER HAND, THE RESPONDENTS' POSITION WERE ADOPTED, JURISDICTION WOULD
DEPEND ON WHETHER THE PLANE HAPPENED TO BE FLYING OVER LAND OR WATER
WHEN THE ORIGINAL IMPACT OF THE ALLEGED NEGLIGENCE OCCURRED.  THIS
CIRCUMSTANCE, TOO, COULD BE TOTALLY FORTUITOUS.  IF THE PLANE IN THE
PRESENT CASE STRUCK THE BIRDS OVER CLEVELAND'S LAKEFRONT AIRPORT,
ADMIRALTY JURISDICTION WOULD NOT LIE; BUT IF THE PLANE HAD JUST CROSSED
THE SHORELINE WHEN IT STRUCK THE BIRDS, ADMIRALTY JURISDICTION WOULD
ATTACH, EVEN IF THE PLANE WERE THEN ABLE TO MAKE IT BACK TO THE AIRPORT
AND CRASHLAND THERE.  THESE ARE HARDLY THE TYPES OF DISTINCTIONS WITH
WHICH ADMIRALTY LAW WAS DESIGNED TO DEAL. 

ALL THESE AND OTHER DIFFICULTIES THAT CAN ARISE IN ATTEMPTING TO
APPLY THE LOCALITY TEST OF ADMIRALTY JURISDICTION TO AERONAUTICAL TORTS
ARE, OF COURSE, ATTRIBUTABLE TO THE INHERENT NATURE OF AIRCRAFT. 
UNLIKE WATERBORNE VESSELS, THEY ARE NOT RESTRAINED BY ONE-DIMENSIONAL
GEOGRAPHIC AND PHYSICAL BOUNDARIES.  FOR THIS ELEMENTARY REASON, WE
CONCLUDE THAT THE MERE FACT THAT THE ALLEGED WRONG "OCCURS" OR "IS
LOCATED" ON OR OVER NAVIGABLE WATERS-- WHATEVER THAT MEANS IN AN
AVIATION CONTEXT-- IS NOT OF ITSELF SUFFICIENT TO TURN AN AIRPLANE
NEGLIGENCE CASE INTO A "MARITIME TORT."  IT IS FAR MORE CONSISTENT WITH
THE HISTORY AND PURPOSE OF ADMIRALTY TO REQUIRE ALSO THAT THE WRONG
BEAR A SIGINFICANT RELATIONSHIP TO TRADITIONAL MARITIME ACTIVITY.  WE
HOLD THAT UNLESS SUCH A RELATIONSHIP EXISTS, CLAIMS ARISING FROM
AIRPLANE ACCIDENTS ARE NOT COGNIZABLE IN ADMIRALTY IN THE ABSENCE OF
LEGISLATION TO THE CONTRARY. 

        IV 

THIS CONCLUSION, HOWEVER, DOES NOT END OUR INQUIRY, FOR THERE
REMAINS THE QUESTION OF WHAT CONSTITUTES, IN THE CONTEXT OF AVIATION, A
SIGNIFICANT RELATIONSHIP TO TRADITIONAL MARITIME ACTIVITY.  THE
PETITIONERS ARGUE THAT ANY AIRCRAFT FALLING INTO NAVIGABLE WATERS HAS A
SUFFICIENT RELATIONSHIP TO MARITIME ACTIVITY TO SATISFY THE TEST.  THE
RELEVANT ANALOGY, THEY SAY, IS NOT BETWEEN FLYING AIRCRAFT AND SAILING
SHIPS, BUT BETWEEN A DOWNED PLANE AND A SINKING SHIP.  QUOTING FROM THE
WEINSTEIN OPINION, THEY CONTEND:  "WHEN AN AIRCRAFT CRASHES INTO
NAVIGABLE WATERS, THE DANGERS TO PERSONS AND PROPERTY ARE MUCH THE SAME
AS THOSE ARISING OUT THE SINKING OF A SHIP OR A COLLISION BETWEEN TWO
VESSELS."  316 F.2D, AT 763.  THE DISSENTING OPINION IN THE COURT OF
APPEALS IN THE PRESENT CASE MADE THE SAME ARGUMENT: 

     "I BELIEVE THAT THERE ARE MANY COMPARISONS BETWEEN THE
PROBLEMS

OF AIRCRAFT OVER NAVIGABLE WATERS AND THOSE OF THE SHIPS WHICH

  THE AIRCRAFT ARE RAPIDLY REPLACING . . . . 

" . . . PROBLEMS POSED FOR AIRCRAFT LANDING ON, CRASHING ON, OR

  SINKING INTO NAVIGABLE WATERS DIFFER MARKEDLY FROM LANDINGS UPON

  LAND . . . . IN SUCH INSTANCES, WIND AND WAVE AND WATER, THE

  NORMAL PROBLEMS OF THE MARINER, BECOME THE APPROACH OR SURVIVAL

  PROBLEMS OF THE PILOT AND HIS PASSENGERS . . . . WHAT I WOULD

  HOLD IS THAT TORT CASES ARISING OUT OF AIRCRAFT CRASHES INTO

  NAVIGABLE WATERS ARE COGNIZABLE IN ADMIRALTY JURISDICTION EVEN IF

  THE NEGLIGENT CONDUCT IS ALLEGED TO HAVE HAPPENED WHOLLY ON

  LAND."  448 F.2D, AT 163. 

WE CANNOT ACCEPT THAT DEFINITION OF TRADITIONAL MARITIME ACTIVITY. 
IT IS TRUE THAT IN A LITERAL SENSE THERE MAY BE SOME SIMILARITIES
BETWEEN THE PROBLEMS POSED FOR A PLANE DOWNED ON WATER AND THOSE FACED
BY A SINKING SHIP.  BUT THE DIFFERENCES BETWEEN THE TWO MODES OF
TRANSPORTATION ARE FAR GREATER, IN TERMS OF THEIR BASIC QUALITIES AND
TRADITIONS, AND CONSEQUENTLY IN TERMS OF THE CONCEPTUAL EXPERTISE OF
THE LAW TO BE APPLIED.  /18/  THE LAW OF ADMIRALTY HAS EVOLVED OVER
MANY CENTURIES, DESIGNED AND MOLDED TO HANDLE PROBLEMS OF VESSELS
RELEGATED TO PLY THE WATERWAYS OF THE WORLD, BEYOND WHOSE SHORES THEY
CANNOT GO.  THAT LAW DEALS WITH NAVIGATIONAL RULES-- RULES THAT GOVERN
THE MANNER AND DIRECTION THOSE VESSELS MAY RIGHTLY MOVE UPON THE
WATERS.  WHEN A COLLISION OCCURS OR A SHIP FOUNDERS AT SEA, THE LAW OF
ADMIRALTY LOOKS TO THOSE RULES TO DETERMINE FAULT, LIABILITY, AND ALL
OTHER QUESTIONS THAT MAY ARISE FROM SUCH A CATASTROPHE.  THROUGH LONG
EXPERIENCE, THE LAW OF THE SEA KNOWS HOW TO DETERMINE WHETHER A
PARTICULAR SHIP IS SEAWORTHY, AND IT KNOWS THE NATURE OF MAINTENANCE
AND CURE.  IT IS CONCERNED WITH MARITIME LIENS, THE GENERAL AVERAGE,
CAPTURES AND PRIZES, LIMITATION OF LIABILITY, CARGO DAMAGE, AND CLAIMS
FOR SALVAGE. 

RULES AND CONCEPTS SUCH AS THESE ARE WHOLLY ALIEN TO AIR COMMERCE,
WHOSE VEHICLES OPERATE IN A TOTALLY DIFFERENT ELEMENT, UNHINDERED BY
GEORGRAPHICAL BOUNDARIES AND EXEMPT FROM THE NAVIGATIONAL RULES OF THE
MARITIME ROAD.  THE MATTERS WITH WHICH ADMIRALTY IS BASICALLY CONCERNED
HAVE NO CONCEIVABLE BEARING ON THE OPERATION OF AIRCRAFT, WHETHER OVER
LAND OR WATER.  INDEED, IN CONTEXTS OTHER THAN TORT, CONGRESS AND THE
COURTS HAVE RECOGNIZED THAT, BECAUSE OF THESE DIFFERENCES, AIRCRAFT ARE
NOT SUBJECT TO MARITIME LAW.  /19/  ALTHOUGH DANGERS OF WIND AND WAVE
FACED BY A PLANE THAT HAS CRASHED ON NAVIGABLE WATERS MAY BE
SUPERFICIALLY SIMILAR TO THOSE ENCOUNTERED BY A SINKING SHIP, THE
PLANE'S UNEXPECTED DESCENT WILL ALMOST INVARIABLY HAVE BEEN
ATTRIBUTABLE TO A CAUSE UNRELATED TO THE SEA-- BE IT PILOT ERROR,
DEFECTIVE DESIGN OR MANUFACTURE OF AIRFRAME OR ENGINE, ERROR OF A
TRAFFIC CONTROLLER AT AN AIRPORT, OR SOME OTHER CAUSE; AND THE
DETERMINATION OF LIABILITY WILL THUS BE BASED ON FACTUAL AND CONCEPTUAL
INQUIRIES UNFAMILIAR TO THE LAW OF ADMIRALTY.  IT IS CLEAR, THEREFORE,
THAT NEITHER THE FACT THAT A PLANE GOES DOWN ON NAVIGABLE WATERS NOR
THE FACT THAT THE NEGLIGENCE "OCCURS" WHILE A PLANE IS FLYING OVER SUCH
WATERS IS ENOUGH TO CREATE SUCH A RELATIONSHIP TO TRADITIONAL MARITIME
ACTIVITY AS TO JUSTIFY THE INVOCATION OF ADMIRALTY JURISDICTION. 

WE NEED NOT DECIDE TODAY WHETHER AN AVIATION TORT CAN EVER, UNDER
ANY CIRCUMSTANCES, BEAR A SUFFICIENT RELATIONSHIP TO TRADITIONAL
MARITIME ACTIVITY TO COME WITHIN ADMIRALTY JURISDICTION IN THE ABSENCE
OF LEGISLATION.  /20/  IT COULD BE ARGUED, FOR INSTANCE, THAT IF A
PLANE FLYING FROM NEW YORK TO LONDON CRASHED IN THE MID-ATLANTIC, THERE
WOULD BE ADMIRALTY JURISDICTION OVER RESULTING TORT CLAIMS EVEN ABSENT
A SPECIFIC STATUTE.  /21/  AN AIRCRAFT IN THAT SITUATION MIGHT BE
THOUGHT TO BEAR A SIGNIFICANT RELATIONSHIP TO TRADITIONAL MARITIME
ACTIVITY BECAUSE IT WOULD BE PERFORMING A FUNCTION TRADITIONALLY
PERFORMED BY WATERBORNE VESSELS.  /22/  MOREOVER, OTHER FACTORS MIGHT
COME INTO PLAY IN THE AREA OF INTERNATIONAL AIR COMMERCE-- CHOICE-OF
FORUM PROBLEMS, CHOICE-OF-LAW PROBLEMS, /23/  INTERNATIONAL LAW
PROBLEMS, PROBLEMS INVOLVING MULTI-NATION CONVENTIONS AND TREATIES, AND
SO ON. 

BUT NONE OF THESE CONSIDERATIONS IS OF CONCERN IN THE CASE BEFORE
US.  THE FLIGHT OF THE PETITIONERS' LAND-BASED AIRCRAFT WAS TO BE FROM
CLEVELAND TO PORTLAND, MAINE, AND THENCE TO WHITE PLAINS, NEW YORK-- A
FLIGHT THAT WOULD HAVE BEEN ALMOST ENTIRELY OVER LAND AND WITHIN THE
CONTINENTAL UNITED STATES.  AFTER IT STRUCK THE FLOCK OF SEAGULLS OVER
THE RUNWAY, THE PLANE DESCENDED AND SETTLED IN LAKE ERIE WITHIN THE
TERRITORIAL WATERS OF OHIO.  WE CAN FIND NO SIGINFICANT RELATIONSHIP
BETWEEN SUCH AN EVENT BEFALLING A LAND-BASED PLANE FLYING FROM ONE
POINT IN THE CONTINENTAL UNITED STATES TO ANOTHER, AND TRADITIONAL
MARITIME ACTIVITY INVOLVING NAVIGATION AND COMMERCE ON NAVIGABLE
WATERS. 

JUST LAST TERM, IN VICTORY CARRIERS, INC. V. LAW, 404 U.S.,AT 212,
WE OBSERVED THAT IN DETERMINING WHETHER TO EXPAND ADMIRALTY
JURISDICTION, "WE SHOULD PROCEED WITH CAUTION . . . . "  QUOTING FROM
HEALY V. RATTA, 292 U.S. 263, 270 (1934), WE STATED: 

"'THE POWER RESERVED TO THE STATES, UNDER THE CONSTITUTION, TO
PROVIDE FOR THE DETERMINATION OF CONTROVERSIES IN THEIR COURTS MAY BE
RESTRICTED ONLY BY THE ACTION OF CONGRESS IN CONFORMITY TO THE
JUDICIARY SECTIONS OF THE CONSTITUTION . . . . DUE REGARD FOR THE
RIGHTFUL INDEPENDENCE OF STATE GOVERNMENTS, WHICH SHOULD ACTUATE
FEDERAL COURTS, REQUIRES THAT THEY SCRUPULOUSLY CONFINE THEIR OWN
JURISDICTION TO THE PRECISE LIMITS WHICH (A FEDERAL) STATUTE HAS
DEFINED.'"  IN THE SITUATION BEFORE US, WHICH IS ONLY FORTUITOUSLY AND
INCIDENTALLY CONNECTED TO NAVIGABLE WATERS AND WHICH BEARS NO
RELATIONSHIP TO TRADITIONAL MARITIME ACTIVITY, THE OHIO COURTS COULD
PLAINLY EXERCISE JURISDICTION OVER THE SUIT, /24/  AND COULD PLAINLY
APPLY FAMILIAR CONCEPTS OF OHIO TORT LAW WITHOUT ANY EFFECT ON MARITIME
ENDEAVORS.  /25/ 

IT MAY BE, AS THE PETITIONERS ARGUE, THAT AVIATION TORT CASES SHOULD
BE GOVERNED BY UNIFORM SUBSTANTIVE AND PROCEDURAL LAWS, AND THAT SUCH
ACTIONS SHOULD BE HEARD IN THE FEDERAL COURTS SO AS TO AVOID DIVERGENT
RESULTS AND DUPLICITOUS LITIGATION IN MULTI-PARTY CASES.  BUT FOR THIS
COURT TO UPHOLD FEDERAL ADMIRALTY JURISDICTION IN A FEW WHOLLY
FORTUITOUS AIRCRAFT CASES WOULD BE A MOST QUIXOTIC WAY OF APPROACHING
THAT GOAL.  IF FEDERAL UNIFORMITY IS THE DESIRED GOAL WITH RESPECT TO
CLAIMS ARISING FROM AVIATION ACCIDENTS, CONGRESS IS FREE UNDER THE
COMMERCE CLAUSE TO ENACT LEGISLATION APPLICABLE TO ALL SUCH ACCIDENTS,
WHETHER OCCURRING ON LAND OR WATER, AND ADAPTED TO THE SPECIFIC
CHARACTERISTICS OF AIR COMMERCE. 

FOR THE REASONS STATED IN THIS OPINION WE HOLD THAT, IN THE ABSENCE
OF LEGISLATION TO THE CONTRARY, THERE IS NO FEDERAL ADMIRALTY
JURISDICTION OVER AVIATION TORT CLAIMS ARISING FROM FLIGHTS BY LAND
BASED AIRCRAFT BETWEEN POINTS WITHIN THE CONTINENTAL UNITED STATES. 
/26/ 

THE JUDGMENT IS AFFIRMED. 

/1/  THAT SECTION PROVIDES: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION, EXCLUSIVE OF
THE COURTS OF THE STATES, OF:

"(1) ANY CIVIL CASE OF ADMIRALTY OR MARITIME JURISDICTION, SAVING TO
SUITORS IN ALL CASES ALL OTHER REMEDIES TO WHICH THEY ARE OTHERWISE
ENTITLED." 

/2/  BESIDES DICKEN, THE RESPONDENTS ARE THE CITY OF CLEVELAND, AS
OWNER AND OPERATOR OF THE AIRPORT, AND PHILLIP A. SCHWENZ, THE AIRPORT
MANAGER. 

/3/  THE PETITIONERS ALSO FILED AN ACTION AGAINST DICKEN'S EMPLOYER,
THE UNITED STATES, UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 1346(B)
AND 2674, ASSERTING THE SAME CLAIM.  THAT ACTION IS PENDING IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO. 

/4/ IN VICTORY CARRIERS, INC. V. LAW, 404 U.S. 202, 205 N.2 (1971),
WE CITED OVER 40 CASES TO THIS EFFECT. 

/5/  DAVIS V. CITY OF JACKSONVILLE BEACH, 251 F.SUPP.  327 (MD FLA.
1965) (INJURY TO A SWIMMER BY A SURFBOARD); KING V. TESTERMAN, 214
F.SUPP.  335, 336 (ED TENN. 1963) (INJURIES TO A WATER SKIER).  SEE
ALSO HORTON V. J. & J. AIRCRAFT, INC., 257 F.SUPP.  120, 121 (SD FLA.
1966).  CF. WEINSTEIN V. EASTERN AIRLINES, INC., 316 F.2D 758 (CA3
1963). 

/6/  IN ANOTHER INJURED-SWIMMER CASE, MCGUIRE V. CITY OF NEW YORK,
192 F.SUPP.  866, 871-872 (SDNY 1961), THE COURT STATED: 

"THE PROPER SCOPE OF JURISDICTION SHOULD INCLUDE ALL MATTERS
RELATING TO THE BUSINESS OF THE SEA AND THE BUSINESS CONDUCTED ON
NAVIGABLE WATERS. 

"THE LIBEL IN THIS CASE DOES NOT RELATE TO ANY TORT WHICH GROWS OUT
OF NAVIGATION.  IT ALLEGES AN ORDINARY TORT, NO DIFFERENT IN SUBSTANCE
BECAUSE THE INJURY OCCURRED IN SHALLOW WATERS ALONG THE SHORE THAN IF
THE INJURY HAD OCCURRED ON THE SANDY BEACH ABOVE THE WATER LINE. 
WHETHER THE CITY OF NEW YORK SHOULD BE HELD LIABLE FOR THE INJURY
SUFFERED BY LIBELLANT IS A QUESTION WHICH CAN EASILY BE DETERMINED IN
THE COURTS OF THE LOCALITY.  TO ENDEAVOR TO PROJECT SUCH AN ACTION INTO
THE FEDERAL COURTS ON THE GROUND OF ADMIRALTY JURISDICTION IS TO
MISINTERPRET THE NATURE OF ADMIRALTY JURISDICTION." 

OTHER CASES HOLDING THAT ADMIRALTY JURISDICTION WAS NOT PROPERLY
INVOKED BECAUSE THE TORT, WHILE HAVING A MARITIME LOCALITY, LACKED A
SIGNIFICANT RELATIONSHIP TO MARITIME NAVIGATION AND COMMERCE, INCLUDE:
PEYTAVIN V. GOVERNMENT EMPLOYEES INSURANCE CO., 453 F.2D 1121 (CA5
1972); GOWDY V. UNITED STATES, 412 F.2D 525, 527-529 (CA6 1969); SMITH
V. GUERRANT, 290 F.SUPP.  111, 113-114 (SD TEX. 1968).  SEE ALSO J. W.
PETERSEN COAL & OIL CO. V. UNITED STATES, 323 F.SUPP.  1198, 1201 (ND
ILL. 1970); O'CONNOR & CO. V. CITY OF PASCAGOULA, 304 F.SUPP.  681, 683
(SD MISS.  1969); HASTINGS V. MANN, 226 F.SUPP.  962, 964-965 (EDNC
1964), AFF'D, 340 F.2D 910 (CA4 1965).  A SIMILAR VIEW IS TAKEN BY THE
ENGLISH COURTS. 

/7/  HOUGH, ADMIRALTY JURISDICTION-- OF LATE YEARS, 37 HARV.L.REV. 
529, 531 (1924). 

/8/  THE COURT HAS HELD, HOWEVER, THAT THERE IS NO ADMIRALTY
JURISDICTION UNDER THE EXTENSION OF ADMIRALTY JURISDICTION ACT OVER
SUITS BROUGHT BY LONGSHOREMEN INJURED WHILE WORKING ON A PIER, WHEN
SUCH INJURIES WERE CAUSED, NOT BY SHIPS, BUT BY PIER-BASED EQUIPMENT. 
VICTORY CARRIERS, INC. V. LAW, SUPRA; NACIEREMA CO. V. JOHNSON, 396
U.S. 212, 223 (1969).  THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, 33 U.S.C. 901 ET SEQ., WAS AMENDED IN 1972 TO COVER
EMPLOYEES WORKONG ON THOSE AREAS OF THE SHORE CUSTOMARILY USED IN
LOADING, UNLOADING, REPAIRING, OR BUILDING A VESSEL.  PUB. L. NO. 92
576, SEC. 2, 86 STAT. 1251.     /9/  MATTER OF REINHARDT V. NEWPORT
FLYING SERVICE CORP., 232 N.Y. 115, 117-118, 133 N.E. 371, 372 (1921);
UNITED STATES V. NORTHWEST AIR SERVICE, INC., 80 F.2D 804, 805 (CA9
1935).  SEE ALSO LAMBROS SEAPLANE BASE V. THE BATORY, 215 F.2D 228, 231
(CA2 1954). 

/10/  DOLLINS V. PAN-AMERICAN GRACE AIRWAYS, INC., 27 F.SUPP.  487,
488-489 (SDNY 1939); NOAKES V. IMPERIAL AIRWAYS, LTD., 29 F.SUPP.  412,
413 (SDNY 1939). 

/11/  UNITED STATES V. PEOPLES, 50 F.SUPP.  462 (ND CAL. 1943);
UNITED STATES V. CORDOVA, 89 F.SUPP.  298 (EDNY 1950). 

IN 1952, HOWEVER, CONGRESS AMENDED THE CRIMINAL JURISDICTION OF
ADMIRALTY TO INCLUDE CRIMES COMMITTED ABOARD AIRCRAFT WHILE IN FLIGHT
OVER THE HIGH SEAS OR ANY OTHER WATERS WITHIN THE ADMIRALTY
JURISDICTION OF THE UNITED STATES EXCEPT WATERS WITHIN THE TERRITORIAL
JURISDICTION OF ANY STATE.  18 U.S.C. 7(5). 

/12/  THE FEDERAL AVIATION ACT OF 1958, 72 STAT. 799, AS AMENDED, 49
U.S.C. 1509(A), THE SUCCESSOR TO THE AIR COMMERCE ACT OF 1926, 44 STAT.
572, FORMERLY 49 U.S.C. 177 (1952 ED.). 

/13/  SEE, E.G., WYMAN V. PAN-AMERICAN AIRWAYS, INC., 181 MISC. 963,
966, 43 N.Y.S.2D 420, 423, AFF'D, 267 APP.DIV.  947, 48 N.Y.S.2D 459,
AFF'D, 293 N.Y. 878, 59 N.E.2D 785 (1944); HIGA V. TRANSOCEAN AIRLINES,
230 F.2D 780 (CA9 1955); NOEL V. LINEA AEROPOSTAL VENEZOLANA, 247 F.2D
677, 680 (CA2 1957); TRIHEY V. TRANSOCEAN AIR LINES, 255 F.2D 824, 827
(CA9 1958); LACEY V. L. W. WIGGINS AIRWAYS, INC., 95 F.SUPP.  916
(MASS. 1951); WILSON V. TRANSOCEAN AIRLINES, 121 F.SUPP.  85 (ND CAL.
1954); STILES V. NATIONAL AIRLINES, INC., 161 F.SUPP.  125 (ED LA.
1958), AFF'D, 268 F.2D 400 (CA5 1959); NOEL V. AIRPONENTS, INC., 169
F.SUPP.  348 (NJ 1958); LAVELLO V. DANKO, 175 F.SUPP.  92 (SDNY 1959);
BLUMENTHAL V. UNITED STATES, 189 F.SUPP.  439, 445 (ED PA. 1960),
AFF'D, 306 F.2D 16 (CA3 1962); PARDONNET V. FLYING TIGER LINE, INC.,
233 F.SUPP.  683 (ND ILL. 1964); KROPP V. DOUGLAS AIRCRAFT CO., 329
F.SUPP.  447, 453-455 (EDNY 1971).  CF. D'ALEMAN V. PAN AMERICAN WORLD
AIRWAYS, 259 F.2D 493 (CA2 1958). 

/14/  BERGERON V. AERO ASSOCIATES, INC., 213 F.SUPP.  936 (ED LA.
1963); NOTARIAN V. TRANS WORLD AIRLINES, INC., 244 F.SUPP.  874 (WD PA.
1965); HORTON V. J. & J. AIRCRAFT, INC., 257 F.SUPP.  120 (SD FLA.
1966). 

/15/  WHETHER THIS TYPE OF RELATIONSHIP TO MARITIME COMMERCE IS A
SUFFICIENT MARITIME NEXUS TO JUSTIFY ADMIRALTY JURISDICTION OVER
AIRPLANE ACCIDENTS IS DISCUSSED INFRA, AT 271-272.  WE DO NOT DECIDE
THAT QUESTION IN THIS CASE. 

/16/  HORNSBY V. FISH MEAL CO., 431 F.2D 865 (CA5 1970); HARRIS V.
UNITED AIR LINES, INC., 275 F.SUPP.  431, 432 (SD IOWA 1967).  CF.
SCOTT V. EASTERN AIR LINES, INC., 399 F.2D 14, 21-22 (CA3 1968) (EN
BANC). 

/17/  SEE ALSO COMMENT, ADMIRALTY JURISDICTION:  AIRPLANES AND
WRONGFUL DEATH IN TERRITORIAL WATERS, 64 COLL.L.REV.  1084, 1091-1092
(1964). 

/18/  MOREOVER, IF THE MERE HAPPENSTANCE THAT AN AIRCRAFT FALLS INTO
NAVIGABLE WATERS CREATES A MARITIME RELATIONSHIP BECAUSE OF THE
MARITIME DANGERS TO A SINKING PLANE, THEN THE MARITIME RELATIONSHIP
TEST WOULD BE THE SAME AS THE PETITIONERS' VIEW OF THE MARITIME
LOCALITY TEST, WITH THE SAME INHERENT FORTUITY. 

/19/  SEE SUPRA, AT 261-262. 

/20/  OF COURSE, UNDER THE DEATH ON THE HIGH SEAS ACT, A WRONGFUL
DEATH ACTION ARISING OUT OF AN AIRPLANE CRASH ON THE HIGH SEAS BEYOND A
MARINE LEAGUE FROM THE SHORE OF A STATE MAY CLEARLY BE BROUGHT IN A
FEDERAL ADMIRALTY COURT. 

/21/  BUT SEE 7A J. MOORE, FEDERAL PRACTICE, ADMIRALTY PARA.
.330(5), P. 3772 (2D ED. 1972): 

"WHAT POSSIBLE RATIONAL BASIS IS THERE, FOR INSTANCE, IN HOLDING
THAT THE PERSONAL REPRESENTATIVE OF A PASSENGER KILLED IN THE CRASH OF
AN AIRPLANE TRAVELING FROM SHANNON, IRELAND TO LOGAN FIELD IN BOSTON
HAS A CAUSE OF ACTION WITHIN THE ADMIRALTY JURISDICTION IF THE PLANE
GOES DOWN THREE MILES FROM SHORE; MAY HAVE A CAUSE OF ACTION WITHIN THE
ADMIRALTY JURISDICTION IF THE PLANE GOES DOWN WITHIN AN AREA
CIRCUMSCRIBED BY THE SHORE AND THE THREE-MILE LIMIT; AND WILL NOT HAVE
A CAUSE OF ACTION WITHIN THE ADMIRALTY JURISDICTION IF THE PLANE
MANAGED TO REMAIN AIRBORNE UNTIL REACHING THE MASSACHUSETTS COAST?  AND
THIS NOTWITHSTANDING THAT IN ALL INSTANCES THE PLANE MAY HAVE DEVELOPED
ENGINE TROUBLE OR BEEN THE VICTIM OF PILOT ERROR AT AN IDENTICAL SITE
FAR OUT OVER THE ATLANTIC." 

/22/  APART FROM TRANSOCEANIC FLIGHTS, THE GOVERNMENT'S BRIEF
SUGGESTS THAT ANOTHER EXAMPLE WHERE ADMIRALTY JURISDICTION MIGHT
PROPERLY BE INVOKED IN AN AIRPLANE ACCIDENT CASE ON THE GROUND THAT THE
PLANE WAS PERFORMING A FUNCTION TRADITIONALLY PERFORMED BY WATERBORNE
VESSELS, IS SHOWN IN HORNSBY V. FISH MEAL CO., 431 F.2D 865 (CA5 1970),
WHICH INVOLVED THE MID-AIR COLLISION OF TWO LIGHT AIRCRAFT USED IN
SPOTTING SCHOOLS OF FISH AND THE CRASH OF THOSE AIRCRAFT INTO THE GULF
OF MEXICO WITHIN ONE MARINE LEAGUE OF THE LOUISIANA SHORE. 

/23/  IN SUCH A SITUATION, IT HAS BEEN STATED: 

"WERE THE MARITIME LAW NOT APPLICABLE, IT IS ARGUED THAT THE
RECOVERY WOULD DEPEND UPON A CONFUSING CONSIDERATION OF WHAT
SUBSTANTIVE LAW TO APPLY, I.E., THE LAW OF THE FORUM, THE LAW OF THE
PLACE WHERE EACH DECEDENT (OR INJURED PARTY) PURCHASED HIS TICKET, THE
LAW OF THE PLACE WHERE THE PLANE TOOK OFF, OR, PERHAPS, THE LAW OF THE
POINT OF DESTINATION."  7A J. MOORE, FEDERAL PRACTICE, ADMIRALTY PARA.
.330(5), P. 3774 (2D ED. 1972). 

/24/  THERE IS NO DIVERSITY OF CITIZENSHIP BETWEEN PETITIONERS AND
THE CITY OF CLEVELAND. 

/25/  THE UNITED STATES, RESPONDENT DICKEN'S EMPLOYER, CAN BE SUED,
OF COURSE, ONLY IN FEDERAL DISTRICT COURT UNDER THE FEDERAL TORT CLAIMS
ACT, 28 U.S.C. 1346(B) AND 2674.  SUCH AN ACTION HAS BEEN FILED BY THE
PETITIONERS HERE, BUT EVEN IN THAT SUIT THE FEDERAL COURT WILL APPLY
THE SUBSTANTIVE TORT LAW OF OHIO.  THUS, OHIO LAW WILL NOT BE OUSTED IN
THIS CASE, AND THE PENDENCY OF THE ACTION UNDER THE TORT CLAIMS ACT HAS
NO RELEVANCE IN DETERMINING WHETHER THE INSTANT CASE SHOULD BE HEARD IN
ADMIRALTY, WITH ITS FEDERAL SUBSTANTIVE LAW. 

THE POSSIBILITY THAT THE PETITIONERS WOULD HAVE TO LITIGATE THE SAME
CLAIM IN TWO FORUMS IS THE SAME POSSIBILITY THAT WOULD EXIST IF THEIR
PLANE HAD STOPPED ON THE SHORE OF THE LAKE, INSTEAD OF GOING INTO THE
WATER, AND IS THE SAME POSSIBILITY THAT EXISTS EVERY TIME A PLANE GOES
DOWN ON LAND, NEGLIGENCE OF THE FEDERAL AIR TRAFFIC CONTROLLER IS
ALLEGED, AND THERE IS NO DIVERSITY OF CITIZENSHIP.  THIS PROBLEM CANNOT
BE SOLVED MERELY BY UPHOLDING ADMIRALTY JURISDICTION IN CASES WHERE THE
PLANE HAPPENS TO FALL ON NAVIGABLE WATERS. 

/26/  SOME SUCH FLIGHTS, E.G., NEW YORK CITY TO MIAMI, FLORIDA, NO
DOUBT INVOLVE PASSAGE OVER "THE HIGH SEAS BEYOND A MARINE LEAGUE FROM
THE SHORE OF ANY STATE."  TO THE EXTENT THAT THE TERMS OF THE DEATH ON
THE HIGH SEAS ACT BECOME APPLICABLE TO SUCH FLIGHTS, THAT ACT, OF
COURSE, IS "LEGISLATION TO THE CONTRARY." 

PHILLIP D. BOSTWICK ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONERS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR RESPONDENT DICKEN. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WOOD, ALLAN A.
TUTTLE, AND WALTER H. FLEISCHER.  EDWARD D. CROCKER FILED A BRIEF FOR
RESPONDENTS CITY OF CLEVELAND ET AL.
..END :


















HEUBLEIN, INC. V. SOUTH CAROLINA TAX COMM'N, 409 U.S. 275 


       HEUBLEIN, INC. V. SOUTH CAROLINA TAX COMMISSION

       APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA

     NO. 71-879.  ARGUED NOVEMBER 13, 1972-- DECIDED DECEMBER 18,

           1972 


INCIDENT TO SOUTH CAROLINA'S VALID SCHEME OF REGULATING THE SALE OF
LIQUOR WITHIN THE STATE, A REQUIREMENT THAT A MANUFACTURER DO MORE, AS
A CONDITION OF DOING BUSINESS, THAN MERELY SOLICIT SALES IS NOT
IMPERMISSIBLE EVEN THOUGH IT HAS THE EFFECT OF REQUIRING THE OUT-OF
STATE MANUFACTURER TO UNDERTAKE ACTIVITIES THAT ELIMINATE ITS
PROTECTION UNDER 15 U.S.C. 381(A) FROM THE STATE INCOME TAX.  PP. 278
284. 

257 S.C. 17, 183 S.E.2D 710, AFFIRMED, 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND DOUGLAS, BRENNAN, WHITE, POWELL, AND REHNQUIST, JJ.,
JOINED.  BLACKMUN, J., FILED A STATEMENT CONCURRING IN THE RESULT,
POST, P. 284.  STEWART J., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE MUST DETERMINE WHETHER SOUTH CAROLINA MAY TAX THE
INCOME FROM LOCAL SALES OF HEUBLEIN'S PRODUCTS, CONSISTENT WITH THE
LIMITATIONS ON THE STATE'S POWER TO TAX IMPOSED BY 15 U.S.C. 381(A). 
/1/  THE SOUTH CAROLINA TAX COMMISSION ASSESSED HEUBLEIN, INC., A
CONNECTICUT CORPORATION THAT PRODUCES ALCHOLIC BEVERAGES, A TOTAL OF
$21,549.50 IN TAXES ON INCOME DERIVED FROM THE SALE OF ITS GOODS IN
SOUTH CAROLINA.  /2/  AFTER A HEARING BEFORE THE TAX COMMISSION,
HEUBLEIN PAID THE TAXES AND BROUGHT SUIT TO RECOVER THEM.  THE COURT OF
COMMON PLEAS HELD THAT SEC. 381(A) PROTECTED HEUBLEIN FROM TAX
LIABILITY IN SOUTH CAROLINA.  THE SUPREME COURT OF SOUTH CAROLINA
REVERSED.  257 S.C. 17, 183 S.E.2D 710.  WE NOTED PROBABLE
JURISDICTION, 405 U.S. 952 (1972), AND NOW AFFIRM.  WE HOLD THAT
HEUBLEIN'S ACTIVITIES WITHIN SOUTH CAROLINA EXCEED THE MINIMUM
STANDARDS ESTABLISHED IN 15 U.S.C. 381(A), AND THAT SOUTH CAROLINA MAY,
PURSUANT TO AN OTHERWISE VALID REGULATORY SCHEME, COMPEL HEUBLEIN TO
UNDERTAKE ACTIVITIES THAT TAKE IT BEYOND THE PROTECTION OF 15 U.S.C.
381(A). 

        I 

DURING THE YEARS IN QUESTION, HEUBLEIN HAD ONE EMPLOYEE IN SOUTH
CAROLINA.  HE MAINTAINED AN OFFICE IN HIS HOME AND A DESK AT THE
WAREHOUSE OF BEN ARNOLD CO., THE LOCAL DISTRIBUTOR OF HEUBLEIN'S
PRODUCTS.  HEUBLEIN'S REPRESENTATIVE BRIEFED BEN ARNOLD'S SALESMEN ON
HEUBLEIN'S PRODUCTS, AND TRAVELED THROUGHOUT THE STATE TO LIQUOR
RETAILERS, TELLING THEM OF THE PRODUCTS AND LEAVING PROMOTIONAL
LITERATURE WITH THEM.  ORDINARILY, THE RETAILERS SENT ORDERS DIRECTLY
TO BEN ARNOLD, BUT OCCASIONALLY HEUBLEIN'S REPRESENTATIVE TRANSMITTED
THEM.  BEN ARNOLD, IN TURN, PLACED ITS ORDERS WITH HEUBLEIN'S HOME
OFFICE IN CONNECTICUT.  HEUBLEIN THEN ACKNOWLEDGED ITS ACCEPTANCE OF
THE ORDERS AND INDICATED TO BEN ARNOLD WHEN THE GOODS WOULD BE
SHIPPED.  THEY WERE SENT BY COMMON CARRIER CONSIGNED TO HEUBLEIN IN
CARE OF ITS REPRESENTATIVE AT THE PREMISES OF BEN ARNOLD. 

THIS ARRANGEMENT, WHICH SERVED NONE OF HEUBLEIN'S BUSINESS
INTERESTS, WAS ADOPTED TO CONFORM TO THE REQUIREMENTS OF THE SOUTH
CAROLINA ALCOHOLIC BEVERAGE CONTROL ACT.  S.C. CODE ANN. SEC. 4-1 ET
SEQ. (1962 AND SUPP. 1972).  UNDER THAT ACT, ONLY REGISTERED PRODUCERS
OF REGISTERED BRANDS OF ALCOHOLIC BEVERAGES MAY SHIP THOSE BRANDS OF
ALCOHOLIC BEVERAGES INTO THE STATE.  SECS. 4-134, 4-135.  SUCH
PRODUCERS MUST HAVE A RESIDENT REPRESENTATIVE WHO HAS NO DIRECT OR
INDIRECT INTEREST IN A LOCAL LIQUOR BUSINESS.  SECS. 4-131(3), 4-139. 
SHIPMENTS OF LIQUOR INTO THE STATE MAY BE MADE ONLY TO THE PRODUCER IN
CARE OF ITS REPRESENTATIVE.  SEC. 4-141.  PRIOR TO THE SHIPMENT, THE
PRODUCER MUST MAIL A COPY OF THE INVOICE SHOWING THE QUANTITY AND PRICE
OF THE ITEMS SHIPPED, AND A COPY OF THE BILL OF LADING, TO THE
ALCOHOLIC BEVERAGE CONTROL COMMISSION.  IMMEDIATELY AFTER ACCEPTING
DELIVERY, THE REPRESENTATIVE MUST FURNISH THE COMMISSION A COPY OF THE
INVOICE SHOWING THE TIME AND PLACE OF DELIVERY.  IBID.  WHEN RECEIVED,
THE SHIPMENT MUST BE STORED IN A LICENSED WAREHOUSE OF THE PRODUCER,
OR, AFTER DELIVERY IS COMPLETE, THE SHIPMENT MAY BE TRANSFERRED TO A
LICENSED WHOLESALER.  SECS. 4-140, 4-141.  BEFORE THE GOODS ARE SHIPPED
TO A WHOLESALER, HOWEVER, THE REPRESENTATIVE MUST OBTAIN THE
COMMISSION'S PERMISSION TO MAKE THE TRANSFER.  SEC. 4-141.  HEUBLEIN
COMPLIED WITH THIS REGULATORY SCHEME. 

        II 

TITLE 15 U.S.C. 381(A)(1), ON WHICH HEUBLEIN RELIES, PROVIDES THAT
NO STATE SHALL HAVE POWER TO IMPOSE A NET INCOME TAX ON INCOME DERIVED
WITHIN THE STATE FROM INTERSTATE COMMERCE IF THE RECIPIENT OF THE
INCOME CONFINED ITS BUSINESS WITHIN THE STATE TO "THE SOLICITATION OF
ORDERS . . . IN SUCH STATE FOR SALES OF TANGIBLE PERSONAL PROPERTY,
WHICH ORDERS ARE SENT OUTSIDE THE STATE FOR APPROVAL OR REJECTION, AND,
IF APPROVED, ARE FILLED BY SHIPMENT OR DELIVERY FROM A POINT OUTSIDE
THE STATE." 

WE NEED NOT DECIDE WHETHER, AS THE STATE URGES, THE ACTIONS OF
HEUBLEIN'S REPRESENTATIVE IN MAINTAINING A LOCAL OFFICE, MEETING WITH
RETAILERS, DISTRIBUTING PROMOTIONAL LITERATURE, AND PERSONALLY
DELIVERING SOME ORDERS TO THE WHOLESALER, DO NOT FALL WITHIN THE TERM
"SOLICITATION."  COMPARE SMITH KLINE & FRENCH V. TAX COMM'N, 241 ORE. 
50, 403 P.2D 375 (1965), WITH CLAIROL, INC. V. KINGSLEY, 109
N.J.SUPER.  22, 262 A.2D 213, AFF'D, 57 N.J. 199, 270 A.2D 702 (1970),
APPEAL DISMISSED, 402 U.S. 902 (1971).  FOR HERE HEUBLEIN HAS DONE MORE
THAN JUST THOSE ACTS.  IT SENT ITS PRODUCTS TO ITS LOCAL REPRESENTATIVE
WHO TRANSFERRED THEM TO A LOCAL WHOLESALER.  THIS TRANSFER OCCURRED
WITHIN THE STATE AND CLEARLY WAS NEITHER "SOLICITATION" NOR THE FILLING
OF ORDERS "BY SHIPMENT OR DELIVERY FROM A POINT OUTSIDE THE STATE"
WITHIN THE MEANING OF SEC. 381(A)(1). 

HEUBLEIN CONTENDS, HOWEVER, THAT THE TRANSFER NEVER WOULD HAVE
OCCURRED HAD NOT SOUTH CAROLINA REQUIRED IT AS A CONDITION OF
CONDUCTING BUSINESS WITHIN THE STATE.  HEUBLEIN ARGUES THAT A STATE MAY
NOT EVADE THE PURPOSE OF SEC. 381(A) BY REQUIRING A FIRM TO DO MORE
THAN SOLICIT BUSINESS WITHIN THE STATE AND THEN TAXING THE FIRM FOR
ENGAGING IN THIS COMPELLED ADDITIONAL ACTIVITY. 

IF WE WERE PERSUADED THAT SOUTH CAROLINA HAS EVADED THE INTENT OF
THE STATUTE WE WOULD, OF COURSE, BE RELUCTANT TO UPHOLD ITS ACTIONS. 
BUT THAT IS NOT WHAT SOUTH CAROLINA HAS DONE HERE.  THE LEGISLATIVE
HISTORY OF SEC. 381 SHOWS THAT CONGRESS HAD RATHER LIMITED PURPOSES
WHICH ARE NOT EVADED BY SOUTH CAROLINA'S REGULATION OF LIQUOR SALES IN
THE MANNER IT HAS CHOSEN.  CONGRESS DID NOT FOCUS ON THE CONSEQUENCES
OF ITS ACTIONS FOR SUCH LOCAL REGULATORY SCHEMES.  WE THEREFORE WILL
NOT READ THE STATUTE AS PROHIBITING THE STATES FROM ADOPTING SUCH
SCHEMES, EVEN WHEN THE REGULATION REQUIRES THE PRODUCER TO HAVE MORE
THAN THE MINIMUM CONTACTS WITH THE STATE FOR WHICH SEC. 381 PROVIDES
TAX IMMUNITY.  SUCH A READING WOULD REQUIRE US TO ASSUME THAT CONGRESS
CAREFULLY CONSIDERED THE DIFFICULT PROBLEMS OF ACCOMMODATING THE
FEDERAL INTEREST IN AN OPEN NATIONAL ECONOMY WITH LOCAL INTEREST IN
REGULATING THE SALE OF LIQUOR.  THE EVIDENCE IS CLEAR THAT CONGRESS DID
NOT DO SO. 

THE IMPETUS BEHIND THE ENACTMENT OF SEC. 381 WAS THIS COURT'S
OPINION IN NORTHWESTERN STATES PORTLAND CEMENT CO. V. MINNESOTA, 358
U.S. 450 (1959).  THERE WE HELD THAT "NET INCOME FROM THE INTERSTATE
OPERATIONS OF A FOREIGN CORPORATION MAY BE SUBJECTED TO STATE TAXATION
PROVIDED THE LEVY IS NOT DISCRIMINATORY AND IS PROPERLY APPORTIONED TO
LOCAL ACTIVITIES WITHIN THE TAXING STATE FORMING SUFFICIENT NEXUS TO
SUPPORT THE SAME."  358 U.S.,AT 452.  CONGRESS PROMPTLY RESPONDED TO
THE "CONSIDERABLE CONCERN AND UNCERTAINTY,"  /3/  AND THE "SERIOUS
APPREHENSION IN THE COMMERCIAL COMMUNITY"  /4/  GENERATED BY THIS
DECISION BY ENACTING PUB. L. 86-272, 73 STAT. 555, 15 U.S.C. 381,
WITHIN SEVEN MONTHS. 

IN THIS STATUTE, CONGRESS ATTEMPTED TO ALLAY THE APPREHENSION OF
BUSINESSMEN THAT "MERE SOLICITATION" WOULD SUBJECT THEM TO STATE
TAXATION.  SUCH APPREHENSION AROSE BECAUSE, AS BUSINESSMEN WHO SOUGHT
RELIEF FROM CONGRESS VIEWED THE SITUATION, NORTHWESTERN STATES PORTLAND
CEMENT DID NOT ADEQUATELY SPECIFY WHAT LOCAL ACTIVITIES WERE ENOUGH TO
CREATE A "SUFFICIENT NEXUS" FOR THE EXERCISE OF THE STATE'S POWER TO
TAX.  /5/  SECTION 381 WAS DESIGNED TO DEFINE CLEARLY A LOWER LIMIT FOR
THE EXERCISE OF THAT POWER.  CLARITY THAT WOULD REMOVE UNCERTAINTY WAS
CONGRESS' PRIMARY GOAL.  BY ESTABLISHING SUCH A LIMIT, CONGRESS DID, OF
COURSE, IMPLICITLY DETERMINE THAT THE STATE'S INTEREST IN TAXING
BUSINESS ACTIVITIES BELOW THAT LIMIT WAS WEAKER THAN THE NATIONAL
INTEREST IN PROMOTING AN OPEN ECONOMY.  BUT IT DID NOT ADDRESS THE
QUESTIONS RAISED BY A REQUIREMENT, INCIDENT TO A VALID REGULATORY
SCHEME, THAT A BUSINESS UNDERTAKE ACTIVITIES ABOVE THE LIMIT AS A
CONDITION OF DOING BUSINESS WITHIN THE STATE.  /6/ 

CONGRESS RECOGNIZED, INSTEAD, THAT THE ACCOMMODATION OF LOCAL AND
NATIONAL INTERESTS IN THIS AREA WAS A DELICATE MATTER.  THE COMMITTEES
REPORTING THE BILL TO THE HOUSE AND SENATE EMPHASIZED THE DIFFICULTY OF
DEVISING APPROPRIATE LIMITATIONS ON STATE TAXING POWERS.  BOTH
COMMITTEES CALLED THEIR BILLS TEMPORARY SOLUTIONS TO MEET ONLY THE MOST
PRESSING PROBLEMS CREATED BY NORTHWESTERN STATES PORTLAND CEMENT.  /7/
MORE COMPREHENSIVE LEGISLATION COULD ONLY FOLLOW CAREFUL STUDY, IN THE
COMMITTEES' VIEW.  CONGRESS AGREED, AND IN TITLE II OF PUB. L. 86-272,
PROVIDED THAT THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES AND THE COMMITTEE ON FINANCE OF THE SENATE STUDY THE
ENTIRE PROBLEM OF STATE TAXATION OF INTERSTATE COMMERCE.  /8/ 

CONGRESS, THEN, DID NOT ADDRESS IN SEC. 381 THE PROBLEM OF TAXING A
BUSINESS WHEN IT UNDERTOOK LOCAL ACTIVITIES SIMPLY IN ORDER TO COMPLY
WITH THE REQUIREMENTS OF A VALID REGULATORY SCHEME.  SUCH REGULATION IS
AN IMPORTANT FUNCTION OF LOCAL GOVERNMENTS IN OUR FEDERAL SCHEME.  AS
WE SAID LAST TERM, "UNLESS CONGRESS CONVEYS ITS PURPOSE CLEARLY, IT
WILL NOT BE DEEMED TO HAVE SIGNIFICANTLY CHANGED THE FEDERAL-STATE
BALANCE."  UNITED STATES V. BASS, 404 U.S. 336, 349 (1971). 

CONGRESS OF COURSE DID NOT ENACT IN SEC. 381 A STATUTE WHICH A STATE
CAN DELIBERATELY EVADE BY REQUIRING A FIRM TO UNDERTAKE MORE THAN MERE
SOLICITATION.  WHEN A STATE ENACTS A REGULATORY SCHEME THAT SERVES
LEGITIMATE STATE PURPOSES OTHER THAN ASSURING THAT THE STATE MAY TAX
THE FIRM'S INCOME, IT IS NOT EVADING SEC. 381; IT IS PURSUING
PERMISSIBLE ENDS IN A MANNER THAT CONGRESS DID NOT ADDRESS.  THUS, IF
SOUTH CAROLINA'S SYSTEM OF REGULATING THE SALE OF LIQUOR IS VALID, SEC.
381 DOES NOT PROHIBIT TAXATION OF HEUBLEIN'S LOCAL SALES.  /9/

        III 

SOUTH CAROLINA'S ALCOHOLIC BEVERAGE CONTROL ACT IS A LONG AND
DETAILED STATUTE.  REQUIREMENTS THAT CERTAIN RECORDS BE KEPT BY THE
MANUFACTURER, THE WHOLESALER, AND THE RETAILER PERVADE THE SCHEME. 
THERE MUST BE COMPLETE RECORDS OF THE QUANTITIES, BRANDS, AND PRICES
INVOLVED AT EVERY STATE OF EACH LIQUOR SALE.  BY REQUIRING
MANUFACTURERS TO LOCALIZE THEIR SALES, SOUTH CAROLINA ESTABLISHES A
CHECK ON THE ACCURACY OF THESE RECORDS.  FOR EXAMPLE, WHEN A
MANUFACTURER CAN TRANSFER ITS GOODS TO A WHOLESALER IN THE STATE ONLY
AFTER IT SUBMITS AN INVOICE SHOWING THE PRICE AND AFTER IT RECEIVES
PERMISSION FOR THE TRANSFER, IT IS EASIER FOR THE STATE TO ENFORCE ITS
REQUIREMENT THAT THE WHOLESAL PRICE IN SOUTH CAROLINA BE NO HIGHER THAN
THAT ELSEWHERE IN THE COUNTRY.  S.C. CODE ANN. SEC. 4-137.1 (SUPP.
1971).  THE REQUIREMENT THAT SALES BE LOCALIZED IS, UNQUESTIONABLY,
REASONABLY RELATED TO THE STATE'S PURPOSES AND IS NOT SIMPLY AN ATTEMPT
BY THE STATE TO PROVIDE A BASIS FOR THE TAXATION OF AN OUT-OF-STATE
SELLER'S LOCAL SALES. 

NOR DOES THIS REQUIREMENT VIOLATE THE COMMERCE CLAUSE.  THE TWENTY
FIRST AMENDMENT, SEC. 2, PROVIDES THAT "(THE TRANSPORTATION OR
IMPORTATION INTO ANY STATE . . . FOR DELIVERY OR USE THEREIN OF
INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY
PROHIBITED."  AS THIS COURT SAID IN HOSTETTER V. IDLEWILD BON VOYAGE
LIQUOR CORP., 377 U.S. 324, 330 (1964): 

     "THIS COURT MADE CLEAR IN THE EARLY YEARS FOLLOWING THE

  ADOPTION OF THE TWENTY-FIRST AMENDMENT THAT BY VIRTUE OF ITS

  PROVISIONS A STATE IS TOTALLY UNCONFINED BY TRADITIONAL COMMERCE

  CLAUSE LIMITATIONS WHEN IT RESTRICTS THE IMPORTATION OF

  INTOXICANTS DESTINED FOR USE, DISTRIBUTION, OR CONSUMPTION WITHIN

  ITS BORDERS." 

THE REQUIREMENT THAT, BEFORE ENGAGING IN THE LIQUOR BUSINESS IN
SOUTH CAROLINA, A MANUFACTURER DO MORE THAN MERELY SOLICIT SALES THERE,
IS AN APPROPRIATE ELEMENT IN THE STATE'S SYSTEM OF REGULATING THE SALE
OF LIQUOR.  /10/  THE REGULATION IN QUESTION HERE IS THEREFORE VALID,
AND SEC. 381(A) DOES NOT APPLY.  THE JUDGMENT OF THE SUPREME COURT OF
SOUTH CAROLINA IS

        AFFIRMED. 

/1/  TITLE 15 U.S.C. 381(A) PROVIDES IN PERTINENT PART: 

"NO STATE . . . SHALL HAVE POWER TO IMPOSE . . . A NET INCOME TAX ON
THE INCOME DERIVED WITHIN SUCH STATE BY ANY PERSON FROM INTERSTATE
COMMERCE IF THE ONLY BUSINESS ACTIVITIES WITHIN SUCH STATE BY OR ON
BEHALF OF SUCH PERSON . . . ARE EITHER, OR BOTH, OF THE FOLLOWING: 

"(1) THE SOLICITATION OF ORDERS BY SUCH PERSON, OR HIS
REPRESENTATIVE, IN SUCH STATE FOR SALES OF TANGIBLE PERSONAL PROPERTY,
WHICH ORDERS ARE SENT OUTSIDE THE STATE FOR APPROVAL OR REJECTION, AND,
IF APPROVED, ARE FILLED BY SHIPMENT OR DELIVERY FROM A POINT OUTSIDE
THE STATE; AND 

"(2) THE SOLICITATION OF ORDERS BY SUCH PERSON, OR HIS
REPRESENTATIVE, IN SUCH STATE IN THE NAME OF OR FOR THE BENEFIT OF A
PROSPECTIVE CUSTOMER OF SUCH PERSON, IF ORDERS BY SUCH CUSTOMER TO SUCH
PERSON TO ENABLE SUCH CUSTOMER TO FILL ORDERS RESULTING FROM SUCH
SOLICITATION ARE ORDERS DESCRIBED IN PARAGRAPH (1)." 

/2/  A LICENSE TAX, WHICH IS PREDICATED UPON LIABILITY FOR INCOME
TAXES, WAS ALSO ASSESSED AND PAID.  S.C. CODE ANN. SEC. 65-606 (1962). 
THERE IS NO DISPUTE OVER THE AMOUNT FOR WHICH HEUBLEIN IS LIABLE UNDER
THIS STATUTE. 

/3/  S. REP. NO. 658, 86TH CONG., 1ST SESS., 2. 

/4/  H.R. REP. NO. 936, 85TH CONG., 1ST SESS., 1.     /5/  SEE,
E.G., S. REP. NO. 658, SUPRA, N. 3, PP. 2-3:  "PERSONS ENGAGED IN
INTERSTATE COMMERCE ARE IN DOUBT AS TO THE AMOUNT OF LOCAL ACTIVITIES
WITHIN A STATE THAT WILL BE REGARDED AS FORMING A SUFFICIENT 'NEXUS,'
THAT IS, CONNECTION, WITH THE STATE TO SUPPORT THE IMPOSITION OF A TAX
ON NET INCOME FROM INTERSTATE OPERATIONS AND 'PROPERLY APPORTIONED' TO
THE STATE." 

/6/  THAT CONGRESS WAS UNTROUBLED BY THOSE QUESTIONS IS SUGGESTED BY
ITS EMPHASIS ON THE INCREASED OVERHEAD AND RECORDKEEPING THAT LOCAL
TAXATION OF MINIMAL ACTIVITIES WOULD CAUSE.  SEE, E.G., ID., AT 4; H.R.
REP. NO. 936, SUPRA, N. 4, P. 2:  "THESE BUSINESSES ARE CONCERNED NOT
ONLY WITH THE COSTS OF TAXATION, BUT ALSO WITH THE INESCAPABLE FACT
THAT COMPLIANCE WITH THE DIVERSE TAX LAWS OF EVERY JURISDICTION IN
WHICH INCOME IS PRODUCED WILL REQUIRE THE MAINTENANCE OF RECORDS FOR
EACH JURISDICTION AND THE RETENTION OF LEGAL COUNSEL AND ACCOUNTANTS
WHO ARE FAMILIAR WITH THE TAX PRACTICE OF EACH JURISDICTION."  WHERE A
VALID REGULATORY SCHEME REQUIRES THAT RECORDS BE KEPT, THE OVERHEAD
COSTS ABOUT WHICH CONGRESS WAS CONCERNED MIGHT NOT RISE SUBSTANTIALLY
WHEN A STATE INCOME TAX WAS IMPOSED.  SOUTH CAROLINA'S SCHEME FOR
REGULATING LIQUOR DOES LITTLE MORE THAN REQUIRE THAT HEUBLEIN KEEP
CERTAIN RECORDS. 

/7/  H.R. REP. NO. 936, SUPRA, N. 4, P. 2; S. REP. NO. 658, SUPRA,
N. 3, PP. 4-5:  "YOUR COMMITTEE RECOGNIZES THAT THE BILL IT HAS
REPORTED IS NOT A PERMANENT SOLUTION TO THE PROBLEM THAT EXISTS.  IT
WAS NOT INTENDED TO BE.  YOUR COMMITTEE . . . RECOGNIZES THAT THE
PROBLEM IS A COMPLEX ONE WHICH REQUIRES EXTENSIVE AND EXHAUSTIVE STUDY
IN ARRIVING AT A PERMANENT SOLUTION FAIR ALIKE TO THE STATES AND TO THE
NATION.  YOUR COMMITTEE BELIEVES, HOWEVER, THAT THE BILL IT HAS
REPORTED WILL SERVE AS AN EFFECTIVE STOPGAP OR TEMPORARY SOLUTION WHILE
FURTHER STUDIES ARE MADE OF THE PROBLEM." 

/8/  THIS REPORT IS PUBLISHED AS H.R. REP. NO. 1480, 88TH CONG., 2D
SESS., H.R. REP. NO. 565, 89TH CONG., 1ST SESS., AND H.R. REP. NO. 952,
89TH CONG., 1ST SESS. 

/9/  MR. JUSTICT BLACKMUN, IN HIS SEPARATE STATEMENT, SUGGESTS THAT
SEC. 381 DOES PROSCRIBE WHAT SOUTH CAROLINA HAS DONE HERE, BUT THAT THE
TWENTY-FIRST AMENDMENT PROHIBITS SUCH AN ACTION BY CONGRESS.  IN HIS
VIEW, TO THE EXTENT THAT SEC. 381 PROHIBITS TAXING ACTIVITIES
UNDERTAKEN IN ORDER TO COMPLY WITH A REGULATION VALID UNDER THE TWENTY
FIRST AMENDMENT, IT IS UNCONSTITUTIONAL.  WE PREFER TO READ THE STATUTE
AND ITS LEGISLATIVE HISOTYR, AMBIGUOUS THOUGH THEY MAY BE, TO AVOID
SUCH A HOLDING.  CF. UNITED STATES V. JIN FUEY MOY, 241 U.S. 394, 401
(1961).  AND, THOUGH THE RELATION BETWEEN THE TWENTY-FIRST AMENDMENT
AND THE FORCE OF THE COMMERCE CLAUSE IN THE ABSENCE OF CONGRESSIONAL
ACTION HAS OCCASIONALLY BEEN EXPLORED BY THIS COURT, WE HAVE NEVER
SQUARELY DETERMINED HOW THAT AMENDMENT AFFECTS CONGRESS'  POWER UNDER
THE COMMERCE CLAUSE.  CF. SHWEGMANN BROS. V. CALVERT DISTILLERS CORP.,
341 U.S. 384 (1951). 

/10/  IN UPHOLDING A COMPREHENSIVE SCHEME OF LIQUOR REGULATION
RATHER SIMILAR TO SOUTH CAROLINA'S, THIS COURT SAID: 

"(THE STATE) HAS SEEN FIT TO PERMIT MANUFACTURE OF WHISKEY ONLY UPON
CONDITION THAT IT BE SOLD TO AN INDICATED CLASS OF CUSTOMERS AND
TRANSPORTED IN DEFINITELY SPECIFIED WAYS.  THESE CONDITIONS ARE NOT
UNREASONABLE AND ARE CLEARLY APPROPRIATE FOR EFFECTUATING THE POLICY OF
LIMITING TRAFFIC IN ORDER TO MINIMIZE WELL-KNOWN EVILS . . . . "
ZIFFRIN, INC. V. REEVES, 308 U.S. 132, 139 (1939).  CF. DUCKWORTH V.
ARKANSAS, 314 U.S. 390 (1941); CARTER V. VIRGINIA, 321 U.S. 131
(1944). 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACKMUN, BEING OF THE OPINION THAT THE TWENTY-FIRST
AMENDMENT PROVIDES THE SOLE AUTHORITY FOR WHAT SOUTH CAROLINA HAS
REQUIRED OF HEUBLEIN BY ITS ALCOHOLIC BEVERAGE CONTROL ACT AND, TO THAT
EXTENT, OVERRIDES WHAT OTHERWISE WOULD BE PROSCRIBED BY 15 U.S.C. 381,
CONCURS IN THE RESULT. 

STEPHEN M. PIGA ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WAS W. CROFT JENNINGS, JR. 

G. LEWIS ARGOE, JR., ASSISTANT ATTORNEY GENERAL OF SOUTH CAROLINA,
ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WERE DANIEL R.
MCLEOD, ATTORNEY GENERAL, AND JOE L. ALLEN, JR., AND JOHN C. VON LEHE,
ASSISTANT ATTORNEYS GENERAL. 

MR. PIGA FILED A BRIEF FOR THE DISTILLED SPIRITS INSTITUTE AS AMICUS
CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL CRAMPTON, AND ERNEST J.
BROWN FOR THE UNITED STATES, AND BY WILLIAM D. DEXTER, ASSISTANT
ATTORNEY GENERAL OF WASHINGTON, AND EUGENE F. CORRIGAN FOR THE
MULTISTATE TAX COMMISSION. 
..END :








ERLENBAUGH V. UNITED STATES, 409 U.S. 239 


       ERLENBAUGH ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

    SEVENTH CIRCUIT

        NO. 71-839.  ARGUED NOVEMBER 13, 1972-- DECIDED DECEMBER
12,

           1972 


CAUSING A PUBLICATION TO BE CARRIED BY A FACILITY OF INTERSTATE
COMMERCE WITH AN INTENT TO FACILITATE THE OPERATION OF AN ILLEGAL
GAMBLING BUSINESS IS A VIOLATION OF 18 U.S.C. 1952.  THE EXCEPTION FOR
"ANY NEWSPAPER OR SIMILAR PUBLICATION" CONTAINED IN 18 U.S.C. 1953,
WHICH PROHIBITS THE INTERSTATE SHIPMENT OF CERTAIN GAMBLING
PARAPHERNALIA, WAS NOT INTENDED TO BE READ INTO SEC. 1952.  PP. 242
248. 

452 F.2D 967, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT WHITE, J., WHO TOOK NO PART IN THE DECISION OF
THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS IN THIS CASE ATTACK THEIR CONVICTIONS UNDER THE
TRAVEL ACT, 18 U.S.C. 1952, WHICH MAKES IT UNLAWFUL TO USE A FACILITY
OF INTERESTATE COMMERCE IN FURTHERANCE OF CERTAIN CRIMINAL ACTIVITY. 
PETITIONERS WERE TRIED IN FIVE SEPARATE TRIALS.  /1/  THE CASES WERE
CONSOLIDATED FOR PURPOSES OF APPEAL SINCE EACH RAISED THE QUESTION
WHETHER CAUSING A PUBLICATION TO BE CARRIED BY A FACILITY OF INTERSTATE
COMMERCE WITH AN INTENT TO FACILITATE THE OPERATION OF A GAMBLING
BUSINESS ILLEGAL UNDER STATE LAW VIOLATED SEC. 1952.  THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED THE CONVICTIONS, FINDING NO
EXCEPTION IN SEC. 1952 FOR THE TRANSMITTAL OF PUBLICATIONS.  452 F.2D
967 (1971).  WE GRANTED CERTIORARI FOR THE LIMITED PURPOSE OF RESOLVING
THE CONFLICT BETWEEN THIS DECISION AND A PREVIOUS RULING OF THE COURT
OF APPEALS FOR THE FOURTH CIRCUIT.  /2/  405 U.S. 973 (1972).  FOR
REASONS STATED BELOW, WE AFFIRM. 

IN ALL RESPECTS HERE RELEVANT, THE FACTS OF THE FIVE CASES ARE
IDENTICAL.  EACH INVOLVES THE OPERATION IN HAMMOND, INDIANA, OF A
BOOKMAKING BUSINESS.  A PUBLICATION KNOWN AS THE ILLINOIS SPORTS NEWS
WAS IMPORTANT TO THE FUNCTIONING OF EACH BOOKMAKING OPERATION.  THE
NEWS, A PUBLICATION OF THE TYPE GENERALLY REFERRED TO AS A "SCRATCH
SHEET,"  /3/  CONTAINS MORE COMPLETE AND DETAILED HORSE RACING
INFORMATION THAN IS FOUND IN REGULAR NEWSPAPERS, AND WAS USED
EXTENSIVELY BY THE CUSTOMERS OF THE FIVE BOOKMAKING OPERATIONS IN
PLACING THEIR BETS.  BECAUSE THE NEWS, WHICH APPEARS DAILY EXCEPT
SUNDAY, IS PUBLISHED IN CHICAGO, ILLINOIS, IT WAS NECESSARY TO MAKE
ARRANGEMENTS FOR PROMPT DAILY DELIVERY FROM CHICAGO TO HAMMOND AND THE
BOOKMAKING ESTABLISHMENTS.  THIS WAS ACCOMPLISHED BY CAUSING COPIES OF
THE NEWS TO BE PLACED ON BOARD AN EARLY MORNING TRAIN OF THE CHICAGO,
SOUTH SHORE, & SOUTH BEND RAILROAD IN CHICAGO FOR DELIVERY TO THE
RAILROAD STATION IN HAMMOND, UHERE COPIES WERE PICKED UP FOR EACH OF
THE BOOKMAKING OPERATIONS.  IN EACH CASE THE PETITIONERS ASSUMED
VARIOUS ROLES IN THIS SCHEME, /4/  BUT THE PATTERN OF THE SCHEME FOR
SECURING THE PROMPT DAILY DELIVERY OF THE NEWS WAS THE SAME IN ALL
CASES. 

FACILITY IN INTERSTATE . . . COMMERCE . . . WITH INTENT TO . . .
PROMOTE, MANAGE, ESTABLISH, CARRY ON, OR FACILITATE THE PROMOTION,
MANAGEMENT, ESTABLISHMENT, OR CARRYING ON, OF ANY UNLAWFUL ACTIVITY,
AND THEREAFTER PERFORMS OR ATTEMPTS TO PERFORM ANY OF (THESE) ACTS . .
. . "  UNLAWFUL ACTIVITY INCLUDES "ANY BUSINESS ENTERPRISE INVOLVING
GAMBLING . . . OFFENSES IN VIOLATION OF THE LAWS OF THE STATE IN WHICH
THEY ARE COMMITTED . . . . "  SEE 18 U.S.C. 1952(B).  /5/  FOR OUR
LIMITED PURPOSES IT IS NOT OPEN TO DISPUTE THAT IN EACH CASE
PETITIONERS WERE INVOLVED IN BOOKMAKING BUSINESSES WHICH VIOLATED
INDIANA LAW; /6/  THAT THE ILLINOIS SPORTS NEWS WAS IMPORTANT TO THE
OPERATION OF THOSE BOOKMAKING BUSINESSES; THAT THE SCHEME FOR DELIVERY
OF THE NEWS-- A SCHEME WHICH INVOLVED THE USE OF A FACILITY OF
INTERSTATE COMMERCE, THE RAILROAD-- WAS INTENDED TO FACILITATE THE
OPERATION OF THE BOOKMAKING BUSINESSES; OR THAT THE REQUISITE OVERT
ACTS OCCURRED FOLLOWING THE USE OF THE INTERSTATE FACILITY.  THE ONLY
QUESTION HERE IS WHETHER THESE CASES FALL OUTSIDE THE AMBIT OF SEC.
1952 BECAUSE THE USE OF THE INTERSTATE FACILITY WAS TO SECURE DELIVERY
OF A NEWS PUBLICATION.  /7/ 

THE BASIS OF PETITIONERS' CHALLENGE TO THE LEGALITY OF THEIR
CONVICTIONS UNDER SEC. 1952-- AND OF THE CONFLICT BETWEEN THE COURTS OF
APPEALS-- IS TO BE FOUND IN 18 U.S.C. 1953.  SECTION 1953(A) MAKES IT
UNLAWFUL FOR ANYONE, "EXCEPT A COMMON CARRIER IN THE USUAL COURSE OF
ITS BUSINESS, KNOWINGLY (TO) CARRY) OR (TO SEND) IN INTERSTATE . . .
COMMERCE ANY . . . PARAPHERNALIA, . . . PAPER, WRITING, OR OTHER DEVICE
USED, OR TO BE USED . . . IN (A) BOOKMAKING; OR (B) WAGERING POOLS . .
.; OR (C) IN A NUMBERS, POLICY, BOLITA, OR SIMILAR GAME . . . . "  THE
BROAD SWEEP OF SUBSECTION (A) IN TERMS OF PARAPHERNALIA COVERED IS
LIMITED TO SOME EXTENT BY SEC. 1953(B)(3) WHICH MAKES THE SECTION
INAPPLICABLE TO "THE CARRIAGE OR TRANSPORTATION IN INTERSTATE . . .
COMMERCE OF ANY NEWSPAPER OR SIMILAR PUBLICATION."  /8/ 

PETITIONERS' ARGUMENT STARTS FROM THE PREMISE THAT THEY COULD NOT
HAVE BEEN PROSECUTED UNDER SEC. 1953(A) BECAUSE THE ILLINOIS SPORTS
NEWS FALLS WITHIN THE NEWSPAPER EXCEPTION CONTAINED IN SEC.
1953(B)(3).  /9/  PETITIONERS RECOGNIZE THAT SEC. 1952 CONTAINS NO
EXPRESS EXCEPTION FOR NEWSPAPERS COMPARABLE TO SEC. 1953(B)(3), BUT
CONTEND THAT SEC. 1952 AND SEC. 1953 ARE IN PARI MATERIA-- THAT IS,
PERTAIN TO THE SAME SUBJECT-- AND, UNDER SETTLED PRINCIPLES OF
STATUTORY CONSTRUCTION, SHOULD THEREFORE BE CONSTRUED "AS IF THEY WERE
ONE LAW,"  UNITED STATES V. FREEMAN, 3 HOW.  556, 564 (1845); SEE,
E.G., UNITED STATES V. STEWART, 311 U.S. 60, 64 (1940); ESTATE OF
SANFORD V. COMMISSIONER, 308 U.S. 39, 44 (1939).  THUS, PETITIONERS
WOULD HAVE US READ THE EXCEPTION CONTAINED IN SEC. 1953(B)(3) AS
APPLICABLE TO NOT ONLY SEC. 1953(A) BUT ALSO SEC. 1952(A), THEREBY
BARRING THEIR PROSECUTION UNDER THE LATTER AS WELL AS THE FORMER.  THIS
WE CANNOT DO. 

THE RULE OF IN PARI MATERIA-- LIKE ANY CANON OF STATUTORY
CONSTRUCTION-- IS A REFLECTION OF PRACTICAL EXPERIENCE IN THE
INTERPRETATION OF STATUTES:  A LEGISLATIVE BODY GENERALLY USES A
PARTICULAR WORD WITH A CONSISTENT MEANING IN A GIVEN CONTEXT.  THUS,
FOR EXAMPLE, A "LATER ACT CAN . . . BE REGARDED AS A LEGISLATIVE
INTERPRETATION OF (AN) EARLIER ACT . . . IN THE SENSE THAT IT AIDS IN
ASCERTAINING THE MEANING OF THE WORDS AS USED IN THEIR CONTEMPORARY
SETTING," AND "IS THEREFORE ENTITLED TO GREAT WEIGHT IN RESOLVING ANY
AMBIGUITIES AND DOUBTS."  UNITED STATES V. STEWART, SUPRA, AT 64-65. 
SEE ALSO, E.G., HUNTER V. ERICKSON, 393 U.S. 385, 388 (1969); UNITED
STATES V. FREEMAN, SUPRA, AT 565.  THE RULE IS BUT A LOGICAL EXTENSION
OF THE PRINCIPLE THAT INDIVIDUAL SECTIONS OF A SINGLE STATUTE SHOULD BE
CONSTRUED TOGETHER, /10/  FOR IT NECESSARILY ASSUMES THAT WHENEVER
CONGRESS PASSES A NEW STATUTE, IT ACTS AWARE OF ALL PREVIOUS STATUTES
ON THE SAME SUBJECT, CF. ALLEN V. GRAND CENTRAL AIRCRAFT CO., 347 U.S.
535, 541-552 (1954).  GIVEN THIS UNDERLYING ASSUMPTION, THE RULE'S
APPLICATION CERTAINLY MAKES THE MOST SENSE WHEN THE STATUTES WERE
ENACTED BY THE SAME LEGISLATIVE BODY AT THE SAME TIME.  SUCH WAS INDEED
THE CASE HERE.  /11/  YET PETITIONERS WOULD HAVE US RESORT TO THE
EXCEPTION CONTAINED IN SEC. 1953(B)(3) NOT SIMPLY TO RESOLVE ANY
"AMBIGUITIES (OR) DOUBTS"  IN THE LANGUAGE IN SEC. 1952 BUT TO
INTRODUCE AN EXCEPTION TO THE COVERAGE OF THE LATTER WHERE NONE IS NOW
APPARENT.  THIS MIGHT BE A SENSIBLE CONSTRUCTION OF THE TWO STATUTES IF
THEY WERE INTENDED TO SERVE THE SAME FUNCTION, BUT PLAINLY THEY WERE
NOT.  /12/ 

TRUE, SEC. 1952 AND SEC. 1953 WERE BOTH PARTS OF A COMPREHENSIVE
FEDERAL LEGISLATIVE EFFORT /13/  TO ASSIST LOCAL AUTHORITIES IN DEALING
WITH ORGANIZED CRIMINAL ACTIVITY WHICH, IN MANY INSTANCES, HAD ASSUMED
INTERSTATE PROPORTIONS /14/  AND WHICH IN ALL CASES WAS MATERIALLY
ASSISTED IN ITS OPERATIONS BY THE AVAILABILITY OF FACILITIES OF
INTERSTATE COMMERCE.  /15/  THE TWO STATUTES, HOWEVER, PLAY DIFFERENT
ROLES IN ACHIEVING THESE BROAD, COMMON GOALS. 

SUBSTANTIAL BARRIER /16/  TO THE DISTRIBUTION OF CERTAIN MATERIALS USED
IN THE CONDUCT OF VARIOUS FORMS OF ILLEGAL GAMBLING.  /17/  BY
INTERDICTING THE FLOW OF THESE MATERIALS TO AND BETWEEN ILLEGAL
GAMBLING BUSINESSES, THE STATUTE PURPOSEFULLY SEEKS TO IMPEDE THE
OPERATION OF SUCH BUSINESSES.  /18/ 

RATHER, IT IS CONCERNED WITH A BROAD SPECTRUM OF "UNLAWFUL ACTIVITY,"
/19/  ILLEGAL GAMBLING BUSINESSES BEING ONLY ONE ELEMENT.  MOREOVER,
THE STATUTE DOES NOT FOCUS UPON ANY PARTICULAR MATERIALS, BUT UPON THE
USE OF THE FACILITIES OF INTERSTATE COMMERCE WITH THE INTENT OF
FURTHERING AN UNLAWFUL "BUSINESS ENTERPRISE."  IT IS, IN SHORT, AN
EFFORT TO DENY INDIVIDUALS WHO ACT FOR SUCH A CRIMINAL PURPOSE ACCESS
TO THE CHANNELS OF COMMERCE.  /20/  THUS, WHILE SEC. 1952 ULTIMATELY
SEEKS, LIKE SEC. 1953, TO INHIBIT ORGANIZED CRIMINAL ACTIVITY, /21/  IT
TAKES A VERY DIFFERENT APPROACH TO DOING SO.  TO INTRODUCE INTO SEC.
1952 AN EXCEPTION BASED UPON THE NATURE OF THE MATERIAL TRANSPORTED IN
INTERSTATE COMMERCE WOULD CARVE A SUBSTANTIAL SLICE FROM THE INTENDED
COVERAGE OF THE STATUTE.  THIS WE WILL NOT DO WITHOUT AN AFFIRMATIVE
INDICATION-- WHICH IS LACKING HERE-- THAT CONGRESS SO INTENDED. 

OUR CONCLUSION HERE IS BOLSTERED BY THE FACT THAT THE REASON FOR THE
NEWSPAPER EXCEPTION TO SEC. 1953 IS ABSENT IN THE CONTEXT OF SEC.
1952.  THE ORIGINAL VERSION OF SEC. 1953 INTRODUCED IN THE SENATE
CONTAINED NONE OF THE EXCEPTIONS SET FORTH IN SUBSECTION (B).  IT WAS
QUICKLY REALIZED THAT THE BILL, AS INTRODUCED, BORE THE POTENTIAL FOR
UNREASONABLY BROAD APPLICATION, SINCE IT WOULD HAVE IMPOSED ABSOLUTE
CRIMINAL LIABILITY ON ANYONE, EXCEPT A COMMON CARRIER, WHO "KNOWINGLY
CARRIES OR SENDS IN INTERSTATE . . . COMMERCE" ANY GAMBLING
PARAPHERNALIA USED IN AN AILLEGAL GAMBLING BUSINESS.  WERE "KNOWINGLY"
CONSTRUED AS MODIFYING ONLY THE PHRASE "CARRIES OR SENDS,"  /22/  THE
STATUTE MIGHT HAVE BEEN APPLIED TO A WHOLLY INNOCENT PERSON WHO
KNOWINGLY CARRIED A NEWSPAPER IN INTERSTATE COMMERCE UNAWARE THAT IT
CONTAINED RACING INFORMATION.  /23/  IT WAS TO AVOID THIS PROBLEM THAT
THE NEWSPAPER EXCEPTION WAS ADDED TO SEC.  1953.  /24/  BUT SEC. 1952
OBVIOUSLY POSES NO THREAT TO INNOCENT CITIZENS.  ITS APPLICATION IS
LIMITED TO THOSE WHO ACT WITH AN INTENT TO FURTHER UNLAWFUL ACTIVITY--
AS WAS CLEARLY TRUE OF THESE PETITIONERS.  THERE IS, THEN, NO REASON
FOR CARRYING THE NEWSPAPER EXCEPTION OF SEC. 1953(B)(3) OVER TO SEC.
1952. 

THE JUDGMENT IS

 AFFIRMED. 

/1/  PETITIONERS ERLENBAUGH, MITCHELL, AND HINTZ WERE TRIED
TOGETHER.  PETITIONER ERLENBAUGH WAS CONVICTED OF CONSPIRACY TO VIOLATE
SEC. 1952.  PETITIONERS MITCHELL AND HINTZ WERE EACH CONVICTED OF TWO
COUNTS OF VIOLATING SEC. 1952 AND OF CONSPIRACY TO VIOLATE THE

PETITIONERS WHITE AND LLOYD WERE TRIED TOGETHER WITH PETITIONER
HINTZ IN A SECOND TRIAL.  EACH WAS CONVICTED OF CONSPIRACY TO VIOLATE
SEC. 1952, AND PETITIONER WHITE WAS CONVICTED OF THREE COUNTS,
PETITIONER HINTZ OF TWO COUNTS, AND PETITIONER LLOYD OF ONE COUNT OF
VIOLATING SEC. 1952. 

PETITIONER KELLY WAS TRIED ALONE AND CONVICTED OF ONE COUNT OF
VIOLATING SEC. 1952 AND OF CONSPIRACY TO VIOLATE THE SECTION. 

PETITIONERS KULIK AND DOBROWSKI WERE TRIED TOGETHER AND CONVICTED OF
CONSPIRACY TO VIOLATE SEC. 1952 AND OF THREE COUNTS AND TWO COUNTS,
RESPECTIVELY, OF VIOLATING THE SECTION. 

PETITIONERS MISIOLEK, TUMLIN, AND STROSKY WERE TRIED TOGETHER, AND
CONVICTED OF CONSPIRACY TO VIOLATE SEC. 1952.  PETITIONER MISIOLEK WAS
ALSO CONVICTED OF THREE COUNTS OF VIOLATING SEC. 1952, WHILE
PETITIONERS TUMLIN AND STROSKY WERE CONVICTED OF FOUR COUNTS OF
VIOLATING THE SECTION. 

/2/  IN UNITED STATES V. ARNOLD, 380 F.2D 366, 368 (1967), THE
FOURTH CIRCUIT REVERSED A CONVICTION UNDER SEC. 1952 BECAUSE, IN ITS
VIEW, "THE USE OF THE TELEPHONE TO ORDER . . . TRANSMITTAL THROUGH THE
MAIL (OF A SPORTS PUBLICATION INTENDED TO BE USED TO FACILITATE THE
OPERATION OF A FOOTBALL BETTING POOL) IS NOT THE USE OF A 'FACILITY . .
. TO . . . PROMOTE . . . ANY UNLAWFUL ACTIVITY', AS CONTEMPLATED BY . .
. SEC. 1952."  THE SEVENTH CIRCUIT IN THIS CASE SPECIFICALLY DECLINED
TO FOLLOW THE DECISION IN ARNOLD.  SEE 452 F.2D,AT 973. 

/3/  A "SCRATCH" IS A HORSE THAT HAS BEEN WITHDRAWN FROM A RACE IN
WHICH IT WAS ENTERED.  THE WITHDRAWAL OF A GOOD HORSE OBVIOUSLY AFFECTS
THE ODDS IN A RACE, AND IS THEREFORE OF GREAT INTEREST TO BETTORS. 

/4/  THE COURT OF APPEALS DESCRIBED EACH OPERATION AND THE
RESPECTIVE ROLES OF THE PETITIONERS IN DETAIL, SEE 452 F.2D,AT 969
970. 

/5/  SEE N. 19, INFRA. 

/6/  SEE IND. ANN. STAT. SECS. 10-2304, 10-2307, 10-2331 (1956). 

/7/  THE QUESTION PRESENTED IN THIS CASE IS SOLELY ONE OF STATUTORY
CONSTRUCTION.  THERE IS NO ISSUE HERE AS TO THE CONSTITUTIONALITY OF
SEC. 1952. 

/8/  SUBSECTION (B) ALSO MAKES THE SECTION INAPPLICABLE TO: 

"(1) PARIMUTUEL BETTING EQUIPMENT, PARIMUTUEL TICKETS WHERE LEGALLY
ACQUIRED, OR PARIMUTUEL MATERIALS USED OR DESIGNED FOR USE AT
RACETRACKS OR OTHER SPORTING EVENTS IN CONNECTION WITH WHICH BETTING IS
LEGAL UNDER APPLICABLE STATE LAW, OR (2) THE TRANSPORTATION OF BETTING
MATERIALS TO BE USED IN THE PLACING OF BETS OR WAGERS ON A SPORTING
EVENT INTO A STATE IN WHICH SUCH BETTING IS LEGAL UNDER THE STATUTES OF
THAT STATE . . . ." 

/9/  WHETHER PUBLICATIONS SUCH AS THE "SCRATCH SHEET" HERE AT ISSUE
ARE IN FACT WITHIN THE "NEWSPAPER OR SIMILAR PUBLICATION" EXCEPTION
CONTAINED IN SEC. 1953(B)(3) IS A QUESTION THAT HAS ARISEN ON A NUMBER
OF OCCASIONS IN THE LOWER COURTS.  SEE UNITED STATES V. KELLY, 328 F.2D
227, 229-236 (CA6 1964); UNITED STATES V. ARNOLD, 380 F.2D 366, 368
(CA4 1967); UNITED STATES V. KISH, 303 F.SUPP.  1212 (ND IND. 1969);
UNITED STATES V. AZAR, 243 F.SUPP.  345, 346-347 (ED MICH. 1964).  THE
GOVERNMENT HERE CONCEDES THAT THE ILLINOIS SPORTS NEWS IS WITHIN SEC.
1953(B)(3).  SEE BRIEF FOR UNITED STATES 9 N. 3.     /10/  SEE, E.G.,
CLARK V. UEBERSEE FINANZ-KORPORATION, A.G., 332 U.S. 480, 488 (1947);
MARKHAM V. CABELL, 326 U.S. 404, 410-411 (1945); EX PARTE PUBLIC
NATIONAL BANK, 278 U.S. 101, 104 (1928). 

/11/  SECTION 1952 WAS ADDED TO TITLE 18 OF THE U.S.C. BY THE ACT OF
SEPT. 13, 1916, PUB. L. 87-228, SEC. 1(A), 75 STAT. 498, AMENDED, ACT
OF JULY 7, 1965, PUB. L. 89-68, 79 STAT. 212; ACT OF OCT. 27, 1970,
TIT. II, SEC. 701(I)(2), 84 STAT. 1282.  SECTION 1953 WAS ADDED TO
TITLE 18 OF THE U.S.C. BY THE ACT OF SEPT. 13, 1961, PUB. L 87-218, 75
STAT. 492.  INDEED, BOTH STATUTES WERE A PART OF ATTORNEY GENERAL
KENNEDY'S LEGISLATIVE PROGRAM TO COMBAT ORGANIZED CRIME AND
RACKETEERING, AND WERE CONSIDERED SIMULTANEOUSLY BY COMMITTEES OF THE
HOUSE AND SENATE.  SEE HEARINGS ON S. 1653, S. 1654, S. 1655, S. 1656,
S. 1657, S. 1658, S. 1665 BEFORE THE SENATE COMMITTEE ON THE JUDICIARY,
87TH CONG., 1ST SESS. (1961) (HEREINAFTER SENATE HEARINGS); HEARINGS ON
H.R. 468, H.R. 1246, H.R. 3021, H.R. 3022, H.R. 3023, H.R. 3246, H.R.
5230, H.R. 6571, H.R. 6572, H.R. 6909, H.R. 7039 BEFORE SUBCOMMITTEE
NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 87TH CONG., 1ST SESS.
(1961) (HEREINAFTER HOUSE HEARINGS). 

/12/  CF. FARMERS RESERVOIR & IRRIGATION CO. V. MCCOMB, 337 U.S.
755, 764 (1949); HELVERING V. STOCKHOLMS ENSKILDA BANK, 293 U.S. 84, 87
88 (1934); ATLANTIC CLEANERS & DYERS, V. UNITED STATES, 286 U.S. 427,
433 (1932). 

/13/  SEE N. 11, SUPRA. 

/14/  ATTORNEY GENERAL KENNEDY, WHO RECOMMENDED THE LEGISLATION TO
CONGRESS, TESTIFIED BEFORE THE SENATE AND HOUSE COMMITTEES THAT "THE
EXTENT TO WHICH ORGANIZED CRIME AND RACKETEERING HAVE DEVELOPED ON AN
INTERSTATE BASIS CONVINCINGLY (DEMONSTRATES) THE NEED FOR NEW FEDERAL
LAWS."  SENATE HEARINGS 10-11; SEE HOUSE HEARINGS 19-20.  SEE ALSO H.R.
REP. NO. 966, 87TH CONG., 1ST SESS., 2-3 (1961) (SEC. 1952). 

/15/  ATTORNEY GENERAL KENNEDY OBSERVED BEFORE THE SENATE COMMITTEE
THAT RACKETEERS "USE INTERSTATE COMMERCE AND INTERSTATE COMMUNICATIONS
WITH IMPUNITY IN THE CONDUCT OF THEIR UNLAWFUL ACTIVITIES.  IF WE COULD
CURTAIL THEIR USE OF INTERSTATE COMMUNICATIONS AND FACILITIES, WE COULD
INFLICT A TELLING BLOW TO THEIR OPERATIONS.  WE COULD CUT THEM DOWN TO
SIZE."  SENATE HEARINGS 11.  PREVIOUSLY, BEFORE THE HOUSE SUBCOMMITTEE,
THE ATTORNEY GENERAL HAD DESCRIBED THE LEGISLATIVE PACKAGE AS "DESIGNED
TO PROHIBIT THE USE OF INTERSTATE FACILITIES FOR THE CONDUCT OF THE
MANY UNLAWFUL ENTERPRISES WHICH MAKE UP ORGANIZED CRIME TODAY."  HOUSE
HEARINGS 20.  SEE ALSO H.R. REP. NO. 966, 87TH CONG., 1ST SESS., 3
(1961) (SEC. 1952); H.R. REP. NO. 968, 87TH CONG., 1ST SESS., 2 (1961)
(SEC. 1953). 

/16/  ONLY COMMON CARRIERS ACTING IN THE USUAL COURSE OF THEIR
BUSINESS, PLUS THOSE MATERIALS SPECIFIED IN SEC. 1953(B), SEE N. 8,
SUPRA, ARE EXCLUDED FROM THE STATUTE'S PROHIBITION. 

/17/  SEE ALSO 18 U.S.C. 1084. 

/18/  REPRESENTATIVE CELLER, WHO INTRODUCED THE STATUTE IN THE
HOUSE, DESCRIBED ITS PURPOSES AS FOLLOWS: 

"THE PRIMARY PURPOSE IS TO PREVENT THE TRANSPORTATION IN INTERSTATE
COMMERCE OF WAGERING MATERIAL.  THE PURPOSE ACTUALLY IS TO CUTOFF AND
SHUTOFF GAMBLING SUPPLIES, IN REALITY TO PREVENT THESE LOTTERIES AND
KINDRED ILLEGAL DIVERSIONS."  107 CONG.REC.  16537.  SEE ALSO S. REP.
NO. 589, 87TH CONG., 1ST SESS., 2 (1961); H.R. REP. NO. 968, 87TH
CONG., 1ST SESS., 2 (1961). 

/19/  "AS USED IN THIS SECTION 'UNLAWFUL ACTIVITY' MEANS (1) ANY
BUSINESS ENTERPRISE INVOLVING GAMBLING, LIQUOR ON WHICH THE FEDERAL
EXCISE TAX HAS NOT BEEN PAID, NARCOTICS, OR CONTROLLED SUBSTANCES . . .
OR PROSTITUTION OFFENSES IN VIOLATION OF THE LAWS OF THE STATE IN WHICH
THEY ARE COMMITTED OR OF THE UNITED STATES, OR (2) EXTORTION, BRIBERY,
OR ARSON IN VIOLATION OF THE LAWS OF THE STATE IN WHICH COMMITTED OR OF
THE UNITED STATES." 

/20/  "THIS BILL WILL ASSIST LOCAL LAW ENFORCEMENT BY DENYING
INTERSTATE FACILITIES TO INDIVIDUALS ENGAGED IN ILLEGAL GAMBLING,
LIQUOR, NARCOTICS OR PROSTITUTION BUSINESS ENTERPRISES."  H.R. REP. NO.
966, 87TH CONG., 1ST SESS., 3 (1961).  SEE ALSO 107 CONG.REC.  13943
(REMARKS OF SEN. EASTLAND). 

/21/  IN REWIS V. UNITED STATES, 401 U.S. 808, 811 (1971), WE
OBSERVED THAT "SEC.  1952 WAS AIMED PRIMARILY AT ORGANIZED CRIME AND,
MORE SPECIFICALLY, AT PERSONS WHO RESIDE IN ONE STATE WHILE OPERATING
OR MANAGING ILLEGAL ACTIVITIES LOCATED IN ANOTHER."  WE, OF COURSE,
ADHERE TO THIS VIEW OF THE STATUTE FOR "CONGRESS WOULD CERTAINLY
RECOGNIZE THAT AN EXPANSIVE TRAVEL ACT WOULD ALTER SENSITIVE FEDERAL
STATE RELATIONSHIPS, COULD OVEREXTEND LIMITED FEDERAL POLICE RESOURCES,
AND MIGHT WELL PRODUCE SITUATIONS IN WHICH . . . RELATIVELY MINOR STATE
OFFENSES (WOULD BE TRANSFORMED) INTO FEDERAL FELONIES."  ID., AT 812. 
SEE ALSO UNITED STATES V. BASS, 404 U.S. 336, 349-350 (1971). 
PETITIONERS CONTEND THAT THERE WAS NO PROOF IN THESE CASES THAT THEY
WERE INVOLVED IN ORGANIZED CRIMINAL ACTIVITY AND THAT SUCH ACTIVITY WAS
BEING DIRECTED FROM ANOTHER STATE.  GIVEN THE LIMITED NATURE OF OUR
GRANT OF CERTIORARI, IT IS NOT OPEN TO QUESTION HERE THAT THE FIVE
ILLEGAL BOOKMAKING BUSINESSES WERE ELEMENTS OF ORGANIZED CRIMINAL
ACTIVITY OF THE TYPE CONTEMPLATED BY SEC. 1952-- THOUGH WE DO NOTE THAT
THE REACH OF THE STATUTE CLEARLY WAS NOT LIMITED TO INSTANCES IN WHICH
ORGANIZED CRIMINAL ACTIVITY IN ONE STATE IS MANAGED FROM ANOTHER STATE,
SEE N. 15, SUPRA. 

/22/  BUT CF. UNITED STATES V. CHASE, 372 F.2D 453, 460 (CA4), CERT.
DENIED, 387 U.S. 907 (1967) ("(KNOWLEDGE AND INTENT TO TRANSMIT
GAMBLING PARAPHERNALIA IN INTERSTATE COMMERCE ARE ELEMENTS OF THE CRIME
CREATED BY" SEC. 1953). 

/23/  "THE COMMITTEE . . . FELT THAT THE BILL, AS INTRODUCED, MIGHT
BE SO INTERPRETED AS TO BRING WITHIN ITS CRIMINAL PENALTIES A PERSON
WHO CARRIED A NEWSPAPER OR OTHER PUBLICATION CONTAINING RACING RESULTS
OR PREDICTIONS."  S. REP. NO. 589, 87TH CONG., 1ST SESS., 2 (1961). 

/24/  SEE IBID.; H.R. REP. NO. 968, 87TH CONG., 1ST SESS., 3
(1961). 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 

CHARLES W. GRUBB ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

ALLAN A. TUTTLE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
PETERSEN, AND ROGER A. PAULEY. 
..END :























ONE LOT EMERALD CUT STONES V. UNITED STATES, 409 U.S. 232 


       ONE LOT EMERALD CUT STONES AND ONE RING V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED COURT OF

           APPEALS FOR THE FIFTH CIRCUIT

       NO. 72-376.  DECIDED DECEMBER 11, 1972 


A FORFEITURE OF IMPORTED MERCHANDISE NOT INCLUDED IN A DECLARATION
AND ENTRY PURSUANT TO THE TARIFF PROVISION IN 19 U.S.C. 1497 IS NOT
BARRED BY A PRIOR ACQUITTAL UNDER 18 U.S.C. 545, WHICH (UNLIKE THE
CIVIL FORFEITURE PROCEEDING) REQUIRES PROOF OF AN INTENT TO DEFRAUD;
NOR IS THE FORFEITURE ACTION BARRED BY THE DOUBLE JEOPARDY CLAUSE,
SINCE CONGRESS MAY IMPOSE BOTH A CRIMINAL AND CIVIL SANCTION RESPECTING
THE SAME ACT OR OMISSION. 

CERTIORARI GRANTED; 461 F.2D 1189, AFFIRMED. 

PER CURIAM. 

ON JUNE 5, 1969, FRANCISCO FARKAC KLEMENTOVA ENTERED THE UNITED
STATES WITHOUT DECLARING TO UNITED STATES CUSTOMS ONE LOT OF EMERALD
CUT STONES AND ONE RING.  KLEMENTOVA WAS INDICTED, TRIED, AND ACQUITTED
OF CHARGES OF VIOLATING 18 U.S.C. 545 /1/  BY WILLFULLY AND KNOWINGLY,
WITH INTENT TO DEFRAUD THE UNITED STATES, SMUGGLING THE ARTICLES INTO
THE UNITED STATES WITHOUT SUBMITTING TO THE REQUIRED CUSTOMS
PROCEDURES.  FOLLOWING THE ACQUITTAL, THE GOVERNMENT INSTITUTED A
FORFEITURE ACTION IN THE UNITED STATES DISTRICT COURT, SOUTHERN
DISTRICT OF FLORIDA, UNDER 18 U.S.C. 545 AND SEC. 497 OF THE TARIFF ACT
OF 1930, 46 STAT. 728, 19 U.S.C. 1497.  /2/  KLEMENTOVA INTERVENED IN
THE PROCEEDING AND ARGUED THAT HIS ACQUITTAL OF CHARGES OF VIOLATING 18
U.S.C. 545 BARRED THE FORFEITURE.  THE DISTRICT COURT HELD THAT THE
FORFEITURE WAS BARRED BY COLLATERAL ESTOPPEL AND THE FIFTH AMENDMENT. 
THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED,
HOLDING THAT A FORFEITURE ACTION PURSUANT TO 19 U.S.C. 1497 WAS NOT
BARRED BY AN ACQUITTAL OF CHARGES OF VIOLATING 18 U.S.C. 545.  WE GRANT
CERTIORARI, AFFIRM, AND THEREBY RESOLVE A CONFLICT AMONG THE CIRCUITS
AS TO WHETHER A FORFEITURE IS BARRED IN THESE CIRCUMSTANCES.  /3/ 

COLLATERAL ESTOPPEL WOULD BAR A FORFEITURE UNDER SEC. 1497 IF, IN
THE EARLIER CRIMINAL PROCEEDING, THE ELEMENTS OF A SEC. 1497 FORFEITURE
HAD BEEN RESOLVED AGAINST THE GOVERNMENT.  ASHE V. SWENSON, 397 U.S.
436, 443 (1970).  BUT IN THIS CASE ACQUITTAL ON THE CRIMINAL CHARGE DID
NOT NECESSARILY RESOLVE THE ISSUES IN THE FOREFITURE ACTION.  FOR THE
GOVERNMENT TO SECURE A CONVICTION UNDER SEC. 545, IT MUST PROVE THE
PHYSICAL ACT OF UNLAWFUL IMPORTATION AS WELL AS A KNOWING AND WILLFUL
INTENT TO DEFRAUD THE UNITED STATES.  AN ACQUITTAL ON THE CRIMINAL
CHARGE MAY HAVE INVOLVED A FINDING THAT THE PHYSICAL ACT WAS NOT DONE
WITH THE REQUISITE INTENT.  INDEED, THE COURT THAT TRIED THE CRIMINAL
CHARGE SPECIFICALLY FOUND THAT THE GOVERNMENT HAD FAILED TO ESTABLISH
INTENT.  /4/  TO SUCCEED IN A FORFEITURE ACTION UNDER SEC. 1497, ON THE
OTHER HAND, THE GOVERNMENT NEED ONLY PROVE THAT THE PROPERTY WAS
BROUGHT INTO THE UNITED STATES WITHOUT THE REQUIRED DECLARATION; THE
GOVERNMENT BEARS NO BURDEN WITH RESPECT TO INTENT.  THUS, THE CRIMINAL
ACQUITTAL MAY NOT BE REGARDED AS A DETERMINATION THAT THE PROPERTY WAS
NOT UNLAWFULLY BROUGHT INTO THE UNITED STATES, AND THE FORFEITURE
PROCEEDING WILL NOT INVOLVE AN ISSUE PREVIOUSLY LITIGATED AND FINALLY
DETERMINED BETWEEN THESE PARTIES.  /5/ 

MOREOVER, THE DIFFERENCE IN THE BURDEN OF PROOF IN CRIMINAL AND
CIVIL CASES PRECLUDES APPLICATION OF THE DOCTRINE OF COLLATERAL
ESTOPPEL.  THE ACQUITTAL OF THE CRIMINAL CHARGES MAY HAVE ONLY
REPRESENTED "'AN ADJUDICATION THAT THE PROOF WAS NOT SUFFICIENT TO
OVERCOME ALL REASONABLE DOUBT OF THE GUILT OF THE ACCUSED.'"  HELVERING
V. MITCHELL, 303 U.S. 391, 397 (1938).  AS TO THE ISSUES RAISED, IT
DOES NOT CONSTITUTE AN ADJUDICATION ON THE PREPONDERANCE-OF-THE
EVIDENCE BURDEN APPLICABLE IN CIVIL PROCEEDINGS.  SEE MURPHY V. UNITED
STATES.  272 U.S. 630 (1926); STONE V. UNITED STATES, 167 U.S. 178
(1897). 

IF FOR NO OTHER REASON, THE FORFEITURE IS NOT BARRED BY THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT BECAUSE IT INVOLVES NEITHER TWO
CRIMINAL TRIALS NOR TWO CRIMINAL PUNISHMENTS.  "CONGRESS MAY IMPOSE
BOTH A CRIMINAL AND A CIVIL SANCTION IN RESPECT TO THE SAME ACT OR
OMISSION; FOR THE DOUBLE JEOPARDY CLAUSE PROHIBITS MERELY PUNISHING
TWICE, OR ATTEMPTING A SECOND TIME TO PUNISH CRIMINALLY, FOR THE SAME
OFFENSE."  HELVERING V. MITCHELL, SUPRA, AT 399.  SEE ALSO UNITED
STATES EX REL. MARCUS V. HESS, 317 U.S. 537 (1943).  /6/  FORFEITURE
UNDER SEC. 1497 IS A CIVIL SANCTION.  THE PROVISION WAS ORIGINALLY
ENACTED AS SEC. 497 OF THE TARIFF ACT OF 1922, 42 STAT. 964.  THE
TARIFF ACT OF 1930 RE-ENACTED THE FORFEITURE REMEDY, 46 STAT. 728, AND
ADDED SEC. 593, 46 STAT. 751, WHICH BECAME 18 U.S.C. 545.  THE
FORFEITURE PROVISION FELL WITHIN TITLE IV OF THE ACT, WHICH CONTAINED
THE "ADMINISTRATIVE PROVISIONS."  PART III OF THAT TITLE, OF WHICH SEC.
1497 WAS A PART, DEALT WITH "ASCERTAINMENT, COLLECTION, AND RECOVERY OF
DUTIES."  SECTION 545, ON THE OTHER HAND, WAS PART OF THE "ENFORCEMENT
PROVISIONS" AND BECAME PART OF THE CRIMINAL CODE OF THE UNITED STATES. 
THE FACT THAT THE SANCTIONS WERE SEPARATE AND DISTINCT AND WERE
CONTAINED IN DIFFERENT PARTS OF THE STATUTORY SCHEME IS RELEVANT IN
DETERMINING THE CHARACTER OF THE FORFEITURE.  CONGRESS COULD AND DID
ORDER BOTH CIVIL AND CRIMINAL SANCTIONS, CLEARLY DISTINGUISHING THEM. 
THERE IS NO REASON FOR FRUSTRATING THAT DESIGN.  SEE HELVERING V.
MITCHELL, SUPRA, AT 404. 

THE SEC. 1497 FORFEITURE IS INTENDED TO AID IN THE ENFORCEMENT OF
TARIFF REGULATIONS.  IT PREVENTS FORBIDDEN MERCHANDISE FROM CIRCULATING
IN THE UNITED STATES, AND, BY ITS MONETARY PENALTY, IT PROVIDES A
REASONABLE FORM OF LIQUIDATED DAMAGES FOR VIOLATION OF THE INSPECTION
PROVISIONS AND SERVES TO REIMBURSE THE GOVERNMENT FOR INVESTIGATION AND
ENFORCEMENT EXPENSES.  IN OTHER CONTEXTS WE HAVE RECOGNIZED THAT SUCH
PURPOSES CHARACTERIZE REMEDIAL RATHER THAN PUNITIVE SANCTIONS.  SEE
ID., AT 401; UNITED STATES EX REL. MARCUS V. HESS, SUPRA, AT 549-550;
REX TRAILER CO. V. UNITED STATES, 350 U.S. 148, 151-154 (1956). 
MOREOVER, IT CANNOT BE SAID THAT THE MEASURE OF RECOVERY FIXED BY
CONGRESS IN SEC. 1497 IS SO UNREASONABLE OR EXCESSIVE THAT IT
TRANSFORMS WHAT WAS CLEARLY INTENDED AS A CIVIL REMEDY INTO A CRIMINAL
PENALTY.  REX TRAILER CO. V. UNITED STATES, SUPRA, AT 154.  SEE MURPHY
V. UNITED STATES, SUPRA; UNITED STATES EX REL. MARCUS V. HESS, SUPRA. 

"FORFEITURE OF GOODS OR THEIR VALUE AND THE PAYMENT OF FIXED OR

  VARIABLE SUMS OF MONEY ARE OTHER SANCTIONS WHICH HAVE BEEN

  RECOGNIZED AS ENFORCIBLE BY CIVIL PROCEEDINGS . . . . IN SPITE OF

  THEIR CONPARATIVE SEVERITY, SUCH SANCTIONS HAVE BEEN UPHELD

  AGAINST THE CONTENTION THAT THEY ARE ESSENTIALLY CRIMINAL AND

  SUBJECT TO THE PROCEDURAL RULES GOVERNING CRIMINAL

  PROSECUTIONS."  HELVERING V. MITCHELL, SUPRA, AT 400. 

THE QUESTION OF WHETHER A GIVEN SANCTION IS CIVIL OR CRIMINAL IS ONE
OF STATUTORY CONSTRUCTION.  ID., AT 399.  IT APPEARS THAT THE SEC. 1497
FORFEITURE IS CIVIL AND REMEDIAL, AND, AS A RESULT, ITS IMPOSITION IS
NOT BARRED BY AN ACQUITTAL OF CHARGES OF VIOLATING SEC. 545. 

AFFIRMED. 

/1/  "WHOEVER KNOWINGLY AND WILLFULLY, WITH INTENT TO DEFRAUD THE
UNITED STATES, SMUGGLES, OR CLANDESTINELY INTRODUCES INTO THE UNITED
STATES ANY MERCHANDISE WHICH SHOULD HAVE BEEN INVOICED, OR MAKES OUT OR
PASSES, OR ATTEMPTS TO PASS, THROUGH THE CUSTOMHOUSE ANY FALSE, FORGED,
OR FRAUDULENT INVOICE, OR OTHER DOCUMENT OR PAPER; OR 

"WHOEVER FRAUDULENTLY OR KNOWINGLY IMPORTS OR BRINGS INTO THE UNITED
STATES, ANY MERCHANDISE CONTRARY TO LAW, OR RECEIVES, CONCEALS, BUYS,
SELLS, OR IN ANY MANNER FACILITATES THE TRANSPORTATION, CONCEALMENT, OR
SALE OF SUCH MERCHANDISE AFTER IMPORTATION, KNOWING THE SAME TO HAVE
BEEN IMPORTED OR BROUGHT INTO THE UNITED STATES CONTRARY TO LAW-- 

"SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN
FIVE YEARS, OR BOTH. 

"PROOF OF DEFENDANT'S POSSESSION OF SUCH GOODS, UNLESS EXPLAINED TO
THE SATISFACTION OF THE JURY, SHALL BE DEEMED EVIDENCE SUFFICIENT TO
AUTHORIZE CONVICTION FOR VIOLATION OF THIS SECTION. 

"MERCHANDISE INTRODUCED INTO THE UNITED STATES IN VIOLATION OF THIS
DESCRIBED IN THE FIRST OR SECOND PARAGRAPH OF THIS SECTION, SHALL BE
FORFEITED TO THE UNITED STATES. 

"THE TERM 'UNITED STATES,' AS USED IN THIS SECTION, SHALL NOT
INCLUDE THE PHILIPPINE ISLANDS, VIRGIN ISLANDS, AMERICAN SAMOE, WAKE
ISLAND, MIDWAY ISLANDS, KINGMAN REEF, JOHNSTON ISLAND, OR GUAM." 

/2/  TITLE 19 U.S.C. 1497 PROVIDES: 

"ANY ARTICLE NOT INCLUDED IN THE DECLARATION AND ENTRY AS MADE, AND,
BEFORE EXAMINATION OF THE BAGGAGE WAS BEGUN, NOT MENTIONED IN WRITING
BY SUCH PERSON, IF WRITTEN DECLARATION AND ENTRY WAS REQUIRED, OR
ORALLY IF WRITTEN DECLARATION AND ENTRY WAS NOT REQUIRED, SHALL BE
SUBJECT TO FORFEITURE AND SUCH PERSON SHALL BE LIABLE TO A PENALTY
EQUAL TO THE VALUE OF SUCH ARTICLE." 

/3/  IN UNITED STATES V. TWO HUNDRED AND ONE FIFTY-POUND BAGS OF
FURAZOLIDONE, NO. 71-1329 (1971), CERT. DENIED, 405 U.S. 964 (1972),
THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED A SUMMARY JUDGMENT
ON THE BASIS OF A PREVIOUS ACQUITTAL OF CHARGES OF VIOLATING SEC. 545
IN FAVOR OF THE OWNER OF PROPERTY IN A FORFEITURE ACTION COMMENCED BY
THE GOVERNMENT UNDER 18 U.S.C. 545 AND 19 U.S.C. 1460.  THE COURT OF
APPEALS FOR THE FIRST CIRCUIT AGREES WITH THE VIEW OF THE FIFTH CIRCUIT
IN THE PRESENT CASE.  SEE LEISER V. UNITED STATES, 234 F.2D 648, CERT.
DENIED, 352 U.S. 893 (1956). 

WE NEED NOT, AND DO NOT, DECIDE WHETHER AN ACQUITTAL UNDER SEC. 545
BARS A FORFEITURE UNDER SEC. 545. 

/4/  THE JUDGE AT THE CRIMINAL TRIAL SPECIFICALLY STATED: 

"HE IS, OBVIOUSLY, A SOPHISTICATED DEALER IN EMERALDS AND OTHER
JEWELRY. 

"I DON'T CONDONE NOR DO I APPROVE, FOR ONE MINUTE, WHAT HE DID IN
THIS INSTANCE.  I THINK HE KNEW THAT THAT JEWELRY-- THAT THAT RING AND
THOSE EMERALDS SHOULD HAVE BEEN DECLARED. 

"HE MADE A DECLARATION OF SOME CIGARETTES AND SOME WHISKEY, SEVERAL
OTHER LITTLE ODD, MEAGER ITEMS THERE, BUT I'M NOT PERSUADED BEYOND A
REASONABLE DOUBT THAT HE DID WHAT HE DID WITH THE INTENT TO DEFRAUD THE
UNITED STATES." 

/5/  THE DIFFERENCE IN THE ISSUES INVOLVED IN THE CRIMINAL
PROCEEDING, ON THE ONE HAND, AND THE FORFEITURE ACTION, ON THE OTHER,
SERVES TO DISTINGUISH COFFEY V. UNITED STATES, 116 U.S. 436 (1886),
RELIED UPON BY THE DISTRICT COURT IN THE PRESENT CASE.  COFFEY INVOLVED
A FORFEITURE ACTION COMMENCED AFTER AN ACQUITTAL.  THIS COURT NOTED, IN
HOLDING THE FORFEITURE BARRED, THAT "(THE INFORMATION (FOR FORFEITURE)
IS FOUNDED ON SECS. 3257, 3450 AND 3453; AND THERE IS NO QUESTION, ON
THE AVERMENTS IN THE ANSWER, THAT THE FRAUDULENT ACTS AND ATTEMPTS AND
INTENTS TO DEFRAUD, ALLEGED IN THE PRIOR CRIMINAL INFORMATION, AND
COVERED BY THE VERDICT AND JUDGMENT OF ACQUITTAL, EMBRACED ALL OF THE
ACTS, ATTEMPTS AND INTENTS AVERRED IN THE INFORMATION IN THIS SUIT." 
ID., AT 442.  THE COURT SPECIFICALLY DISTINGUISHED THE SITUATION WHERE
"A CERTAIN INTENT MUST BE PROVED TO SUPPORT THE INDICTMENT, WHICH NEED
NOT BE PROVED TO SUPPORT THE CIVIL ACTION."  ID., AT 443.  SEE ALSO
STONE V. UNITED STATES, 167 U.S. 178 (1897). 

/6/  THE DISTRICT COURT RELIED UPON THE FOLLOWING LANGUAGE IN UNITED
STATES V. U.S. COIN & CURRENCY, 401 U.S. 715, 718 (1971): 

"BUT AS BOYD V. UNITED STATES, 116 U.S. 616, 634 (1886), MAKES
CLEAR, 'PROCEEDINGS INSTITUTED FOR THE PURPOSE OF DECLARING THE
FORFEITURE OF A MAN'S PROPERTY BY REASON OF OFFENCES COMMITTED BY HIM,
THOUGH THEY MAY BE CIVIL IN FORM, ARE IN THEIR NATURE CRIMINAL' FOR
FIFTH AMENDMENT PURPOSES."  (EMPHASIS IN UNITED STATES V. U.S. COIN &
CURRENCY.) 

COMMISSION OF A CRIMINAL OFFENSE.  A FORFEITURE RESULTS FROM THE ACT OF
IMPORTATION WITHOUT FOLLOWING CUSTOMS PROCEDURES; NO CRIMINAL OFFENSE,
MUCH LESS A CRIMINAL CONVICTION, IS REQUIRED.  CF. ID., AT 718-722. 

ONE 1958 PLYMOUTH SEDAN V. PENNSYLVANIA, 380 U.S. 693 (1965), IS
LIKEWISE INAPPOSITE FOR IT DEALT WITH A FORFEITURE THAT COULD NOT BE
HAD WITHOUT A "DETERMINATION THAT THE CRIMINAL LAW HAS BEEN VIOLATED." 
ID., AT 701. 
..END :


















DILLARD V. INDUSTRIAL COMMISSION OF VIRGINIA, 409 U.S. 238 


       DILLARD V. INDUSTRIAL COMMISSION OF VIRGINIA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF VIRGINIA

        NO. 72-5411.  DECIDED DECEMBER 11, 1972 


347 F.SUPP.  71, VACATED AND REMANDED. 

PER CURIAM. 

APPELLANT BROUGHT A CLASS ACTION TO CHALLENGE THE CONSTITUTIONALITY
OF A STATE REGULATION THAT PERMITTED TEMPORARY SUSPENSION OF HIS
WORKMEN'S COMPENSATION PAYMENTS WITHOUT A PRIOR HEARING.  HE APPEALED
AN ADVERSE JUDGMENT, BUT HIS JURISDICTIONAL STATEMENT STATES THAT AFTER
THE DECISION BELOW "AN ORDER WAS ENTERED BY THE COMMISSION APPROVING A
LUMP-SUM SETTLEMENT OF $4,243.20 IN FULL SETTLEMENT OF (HIS) INDIVIDUAL
CLAIM FOR COMPENSATION FOR HIS INJURY WHICH OCCURRED ON MARCH 15,
1971." 

IN THIS STATE OF THE RECORD, THE MOTION TO PROCEED IN FORMA PAUPERIS
IS GRANTED, THE JUDGMENT IS VACATED, AND THE CASE IS REMANDED TO THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA TO
CONSIDER WHETHER THIS CASE IS MOOT. 
..END :























TRAFFICANTE V. METROPOLITAN LIFE INS., 409 U.S. 205 


       TRAFFICANTE ET AL. V. METROPOLITAN LIFE INSURANCE CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 71-708.  ARGUED NOVEMBER 7, 1972-- DECIDED DECEMBER 7,

      1972 


TWO TENANTS OF AN APARTMENT COMPLEX FILED COMPLAINTS WITH THE
SECRETARY OF HOUSING AND URBAN DEVELOPMENT ALLEGING THAT THEIR
LANDLOARD RACIALLY DISCRIMINATED AGAINST NONWHITES, THAT THE TENANTS
THEREBY LOST THE SOCIAL BENEFITS OF LIVING IN AN INTEGRATED COMMUNITY,
MISSED BUSINESS AND PROFESSIONAL ADVANTAGES THAT WOULD HAVE ACCRUED
FROM LIVING WITH MEMBERS OF MINORITY GROUPS, AND SUFFERED FROM BEING
"STIGMATIZED" AS RESIDENTS OF A "WHITE GHETTO."  THE DISTRICT COURT,
NOT REACHING THE MERITS, HELD THAT THE COMPLAINING TENANTS WERE NOT
WITHIN THE CLASS OF PERSONS ENTITLED TO SUE UNDER SEC. 810(A) OF THE
CIVIL RIGHTS ACT OF 1968.  THE COURT OF APPEALS, IN AFFIRMING,
CONSTRUED SEC. 810(A) TO PERMIT COMPLAINTS ONLY BY PERSONS WHO ARE THE
OBJECTS OF DISCRIMINATORY HOUSING PRACTICES.  HELD:  THE DEFINITION OF
SEC. 810(A) OF "PERSON AGGRIEVED," AS "ANY PERSON WHO CLAIMS TO HAVE
BEEN INJURED BY A DISCRIMINATORY HOUSING PRACTICE," SHOWS A
CONGRESSIONAL INTENTION TO DEFINE STANDING AS BROADLY AS IS PERMITTED
BY ARTICLE III OF THE CONSTITUTION, AND PETITIONERS, BEING TENANTS OF
THE APARTMENT COMPLEX, HAVE STANDING TO SUE UNDER SEC. 810(A).  PP. 208
212. 

446 F.2D 1158, REVERSED AND REMANDED. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  WHITE,
J., FILED A CONCURRING OPINION, IN WHICH BLACKMUN AND POWELL, JJ.,
JOINED, POST, P. 212. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

TWO TENANTS OF PARKMERCED, AN APARTMENT COMPLEX IN SAN FRANCISCO
HOUSING ABOUT 8,200 RESIDENTS, FILED SEPARATE COMPLAINTS WITH THE
SECRETARY OF HOUSING AND URBAN DEVELOPMENT (HUD) PURSUANT TO SEC.
810(A) /1/  OF THE CIVIL RIGHTS ACT OF 1968, 82 STAT. 85, 42 U.S.C.
3610(A).  ONE TENANT IS BLACK, ONE WHITE.  EACH ALLEGED THAT THE OWNER
/2/  OF PARKMERCED HAD DISCRIMINATED AGAINST NONWHITES ON THE BASIS OF
RACE IN THE RENTAL OF APARTMENTS WITHIN THE COMPLEX IN VIOLATION OF
SEC. 804 OF THE ACT. 

HUD, PURSUANT TO SEC. 810(C) OF THE ACT, /3/  NOTIFIED THE
APPROPRIATE CALIFORNIA STATE AGENCY OF THE COMPLAINTS AND THE STATE
AGENCY, FOR LACK OF ADEQUATE RESOURCES TO HANDLE THE COMPLAINTS,
REFERRED THE CHARGE BACK TO HUD.  SINCE HUD FAILED TO SECURE VOLUNTARY
COMPLIANCE WITHIN 30 DAYS, PETITIONERS BROUGHT THIS ACTION IN THE
DISTRICT COURT UNDER SEC. 810(D) OF THE ACT.  /4/ 

THE COMPLAINT ALLEGED THAT THE OWNER HAD DISCRIMINATED AGAINST
NONWHITE RENTAL APPLICANTS IN NUMEROUS WAYS, E.G., MAKING IT KNOWN TO
THEM THAT THEY WOULD NOT BE WELCOME AT PARKMERCED, MANIPULATING THE
WAITING LIST FOR APARTMENTS, DELAYING ACTION ON THEIR APPLICATIONS,
USING DISCRIMINATORY ACCEPTANCE STANDARDS, AND THE LIKE. 

THEY-- THE TWO TENANTS-- CLAIMED THEY HAD BEEN INJURED IN THAT (1)
THEY HAD LOST THE SOCIAL BENEFITS OF LIVING IN AN INTEGRATED COMMUNITY;
(2) THEY HAD MISSED BUSINESS AND PROFESSIONAL ADVANTAGES WHICH WOULD
HAVE ACCRUED IF THEY HAD LIVED WITH MEMBERS OF MINORITY GROUPS; (3)
THEY HAD SUFFERED EMBARRASSMENT AND ECONOMIC DAMAGE IN SOCIAL,
BUSINESS, AND PROFESSIONAL ACTIVITIES FROM BEING "STIGMATIZED" AS
RESIDENTS OF A "WHITE GHETTO."  /5/ 

THE DISTRICT COURT DID NOT REACH THE MERITS BUT ONLY HELD THAT
PETITIONERS WERE NOT WITHIN THE CLASS OF PERSONS ENTITLED TO SUE UNDER
THE ACT.  322 F.SUPP.  352.  THE COURT OF APPEALS AFFIRMED, CONSTRUING
SEC. 810(A) NARROWLY TO PERMIT COMPLAINTS ONLY BY PERSONS WHO ARE THE
OBJECTS OF DISCRIMINATORY HOUSING PRACTICES.  446 F.2D 1158.  THE CASE
IS HERE ON A PETITION FOR A WRIT OF CERTIORARI, WHICH WE GRANTED, 405
U.S. 915.  WE REVERSE THE JUDGMENT BELOW. 

THE DEFINITION OF "PERSON AGGRIEVED" CONTAINED IN SEC. 810(A) /6/
IS IN TERMS BROAD, AS IT IS DEFINED AS "(ANY PERSON WHO CLAIMS TO HAVE
BEEN INJURED BY A DISCRIMINATORY HOUSING PRACTICE." 

THE ACT GIVES THE SECRETARY OF HUD POWER TO RECEIVE AND INVESTIGATE
COMPLAINTS REGARDING DISCRIMINATORY HOUSING PRACTICES.  THE SECRETARY,
HOWEVER, MUST DEFER TO STATE AGENCIES THAT CAN PROVIDE RELIEF AGAINST
THE NAMED PRACTICE.  IF THE STATE AGENCY DOES NOT ACT, THE SECRETARY
MAY SEEK TO RESOLVE THE CONTROVERSY BY CONFERENCE, CONCILIATION, OR
PERSUASION.  IF THESE ATTEMPTS FAIL, THE COMPLAINANT MAY PROCEED TO
COURT PURSUANT TO SEC. 810(D).  /7/ MOREOVER, THESE RIGHTS MAY BE
ENFORCED "BY CIVIL ACTIONS IN APPROPRIATE UNITED STATES DISTRICT COURTS
WITHOUT REGARD TO THE AMOUNT IN CONTROVERSY," IF BROUGHT WITHIN 180
DAYS "AFTER THE ALLEGED DISCRIMINATORY HOUSING PRACTICE OCCURRED." 
SEC. 812(A).  IN ADDITION, SEC. 813 GIVES THE ATTORNEY GENERAL
AUTHORITY TO BRING A CIVIL ACTION IN ANY APPROPRIATE UNITED STATES
DISTRICT COURT WHEN HE HAS REASONABLE CAUSE TO BELIEVE "THAT ANY PERSON
OR GROUP OF PERSONS IS ENGAGED IN A PATTERN OR PRACTICE OF RESISTANCE
TO THE FULL ENJOYMENT OF ANY OF THE RIGHTS GRANTED" BY THE ACT. 

IT IS APPARENT, AS THE SOLICITOR GENERAL SAYS, THAT COMPLAINTS BY
PRIVATE PERSONS ARE THE PRIMARY METHOD OF OBTAINING COMPLIANCE WITH THE
ACT.  HACKETT V. MCGUIRE BROS., INC., 445 F.2D 442 (CA3), WHICH DEALT
WITH THE PHRASE THAT ALLOWED A SUIT TO BE STARTED "BY A PERSON CLAIMING
TO BE AGGRIEVED" UNDER THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000E
5(A), CONCLUDED THAT THE WORDS USED SHOWED "A CONGRESSIONAL INTENTION
TO DEFINE STANDING AS BROADLY AS IS PERMITTED BY ARTICLE III OF THE
CONSTITUTION."  ID., AT 446.  WITH RESPECT TO SUITS BROUGHT UNDER THE
1968 ACT, /8/  WE REACH THE SAME CONCLUSION, INSOFAR AS TENANTS OF THE
SAME HOUSING UNIT THAT IS CHARGED WITH DISCRIMINATION ARE CONCERNED. 

THE LANGUAGE OF THE ACT IS BROAD AND INCLUSIVE.  INDIVIDUAL INJURY
OR INJURY IN FACT TO PETITIONERS, THE INGREDIENT FOUND MISSING IN
SIERRA CLUB V. MORTON, 405 U.S. 727, IS ALLEGED HERE.  WHAT THE PROOF
MAY BE IS ONE THING; THE ALLEGED INJURY TO EXISTING TENANTS BY
EXCLUSION OF MINORITY PERSONS FROM THE APARTMENT COMPLEX IS THE LOSS OF
IMPORTANT BENEFITS FROM INTERRACIAL ASSOCIATIONS. 

THE LEGISLATIVE HISTORY OF THE ACT IS NOT TOO HELPFUL.  THE KEY
OFFERED BY SENATOR MONDALE AND INCORPORATED IN THE BILL OFFERED BY
SENATOR DIRKSEN.  /9/  WHILE MEMBERS OF MINORITY GROUPS WERE DAMAGED
THE MOST FROM DISCRIMINATION IN HOUSING PRACTICES, THE PROPONENTS OF
THE LEGISLATION EMPHASIZED THAT THOSE WHO WERE NOT THE DIRECT OBJECTS
OF DISCRIMINATION HAD AN INTEREST IN ENSURING FAIR HOUSING, AS THEY TOO
SUFFERED.  /10/ 

THE ASSISTANT REGIONAL ADMINISTRATOR FOR HUD WROTE PETITIONERS'
COUNSEL ON NOVEMBER 5, 1970, THAT "IT IS THE DETERMINATION OF THIS
OFFICE THAT THE COMPLAINANTS ARE AGGRIEVED PERSONS AND AS SUCH ARE
WITHIN THE JURISDICTION" OF THE ACT.  WE ARE TOLD THAT THAT IS THE
CONSISTENT ADMINISTRATIVE CONSTRUCTION OF THE ACT.  SUCH CONSTRUCTION
IS ENTITLED TO GREAT WEIGHT.  UDALL V. TALLMAN, 380 U.S. 1, 16; GRIGGS
V. DUKE POWER CO., 401 U.S. 424, 433-434. 

THE DESIGN OF THE ACT CONFIRMS THIS CONSTRUCTION.  HUD HAS NO POWER
OF ENFORCEMENT.  SO FAR AS FEDERAL AGENCIES ARE CONCERNED ONLY THE
ATTORNEY GENERAL MAY SUE; YET, AS NOTED, HE MAY SUE ONLY TO CORRECT "A
PATTERN OR PRACTICE" OF HOUSING DISCRIMINATION.  THAT PHRASE "A PATTERN
OR PRACTICE" CREATES SOME LIMITING FACTORS IN HIS AUTHORITY WHICH WE
NEED NOT STOP TO ANALYZE.  FOR, AS THE SOLICITOR GENERAL POINTS OUT,
MOST OF THE FAIR HOUSING LITIGATION CONDUCTED BY THE ATTORNEY GENERAL
IS HANDLED BY THE HOUSING SECTION OF THE CIVIL RIGHTS DIVISION, WHICH
HAS LESS THAN TWO DOZEN LAWYERS.  SINCE HUD HAS NO ENFORCEMENT POWERS
AND SINCE THE ENORMITY OF THE TASK OF ASSURING FAIR HOUSING MAKES THE
ROLE OF THE ATTORNEY GENERAL IN THE MATTER MINIMAL, THE MAIN GENERATING
FORCE MUST BE PRIVATE SUITS IN WHICH, THE SOLICTOR GENERAL SAYS, THE
COMPLAINANTS ACT NOT ONLY ON THEIR OWN BEHALF BUT ALSO "AS PRIVATE
ATTORNEYS GENERAL IN VIDICATING A POLICY THAT CONGRESS CONSIDERED TO BE
OF THE HIGHEST PRIORITY."  THE ROLE OF "PRIVATE ATTORNEYS GENERAL" IS
NOT UNCOMMON IN MODERN LEGISLATIVE PROGRAMS.  SEE NEWMAN V. PIGGIE PARK
ENTERPRISES, 390 U.S. 400, 402; ALLEN V. STATE BOARD OF ELECTIONS, 393
U.S. 544, 556; PERKINS V. MATTHEWS, 400 U.S. 379, 396; J. I. CASE CO.
V. BORAK, 377 U.S. 426, 432.  IT SERVES AN IMPORTANT ROLE IN THIS PART
OF THE CIVIL RIGHTS ACT OF 1968 IN PROTECTING NOT ONLY THOSE AGAINST
WHOM A DISCRIMINATION IS DIRECTED BUT ALSO THOSE WHOSE COMPLAINT IS
THAT THE MANNER OF MANAGING A HOUSING PROJECT AFFECTS "THE VERY QUALITY
OF THEIR DAILY LIVES."  SHANNON V. UNITED STATES DEPT. OF HOUSING &
URBAN DEV., 436 F.2D 809, 818 (CA3). 

THE DISPUTE TENDERED BY THIS COMPLAINT IS PRESENTED IN AN ADVERSARY
CONTEXT.  FLAST V. COHEN, 392 U.S. 83, 101.  INJURY IS ALLEGED WITH
PARTICULARITY, SO THERE IS NOT PRESENT THE ABSTRACT QUESTION RAISING
PROBLEMS UNDER ART. III OF THE CONSTITUTION.  THE PERSON ON THE
LANDLORD'S BLACKLIST IS NOT THE ONLY VICTIM OF DISCRIMINATORY HOUSING
PRACTICES; IT IS, AS SENATOR JAVITS SAID IN SUPPORTING THE BILL, "THE
WHOLE COMMUNITY," 114 CONG.REC.  2706, AND AS SENATOR MONDATE WHO
DRAFTED SEC. 810(A) SAID, THE REACH OF THE PROPOSED LAW WAS TO REPLACE
THE GHETTOS "BY TRULY INTEGRATED AND BALANCED LIVING PATTERNS."  ID.,
AT 3422. 

WE CAN GIVE VITALITY TO SEC. 810(A) ONLY BY A GENEROUS CONSTRUCTION
WHICH GIVES STANDING TO SUE TO ALL IN THE SAME HOUSING UNIT WHO ARE
INJURED BY RACIAL DISCRIMINATION IN THE MANAGEMENT OF THOSE FACILITIES
WITHIN THE COVERAGE OF THE STATUTE. 

WE REVERSE AND REMAND THE CASE TO THE DISTRICT COURT, LEAVING
UNTOUCHED ALL OTHER QUESTIONS, INCLUDING THE SUGGESTION THAT THE CASE
AGAINST METROPOLITAN LIFE INSURANCE CO. HAS BECOME MOOT. 

       REVERSED AND REMANDED. 

/1/  SECTION 810(A) OF THE ACT PROVIDES IN RELEVANT PART: 

"ANY PERSON WHO CLAIMS TO HAVE BEEN INJURED BY A DISCRIMINATORY
HOUSING PRACTICE OR WHO BELIEVES THAT HE WILL BE IRREVOCABLY INJURED BY
A DISCRIMINATORY HOUSING PRACTICE THAT IS ABOUT TO OCCUR (HEREAFTER
'PERSON AGGRIEVED') MAY FILE A COMPLAINT WITH THE SECRETARY. 
COMPLAINTS SHALL BE IN WRITING AND SHALL CONTAIN SUCH INFORMATION AND
BE IN SUCH FORM AS THE SECRETARY REQUIRES.  UPON RECEIPT OF SUCH A
COMPLAINT THE SECRETARY SHALL FURNISH A COPY OF THE SAME TO THE PERSON
OR PERSONS WHO ALLEGEDLY COMMITTED OR ARE ABOUT TO COMMITE THE ALLEGED
DISCRIMINATORY HOUSING PRACTICE.  WITHIN THIRTY DAYS AFTER RECEIVING A
COMPLAINT, OR WITHIN THIRTY DAYS AFTER THE EXPIRATION OF ANY PERIOD OF
REFERENCE UNDER SUBSECTION (C), THE SECRETARY SHALL INVESTIGATE THE
COMPLAINT AND GIVE NOTICE IN WRITING TO THE PERSON AGGRIEVED WHETHER HE
INTENDS TO RESOLVE IT.  IF THE SECRETARY DECIDES TO RESOLVE THE
COMPLAINT, HE SHALL PROCCED TO TRY TO ELIMINATE OR CORRECT THE ALLEGED
DISCRIMINATORY HOUSING PRACTICE BY INFORMAL METHODS OF CONFERENCE,
CONCILIATION, AND PERSUASION." 

/2/  THE OWNER AT THE TIME THE SUIT WAS STARTED WAS METROPOLITAN
LIFE INS. CO. AFTER THE SUIT WAS COMMENCED, PARKMERCED CORP. ACQUIRED
THE APARTMENT COMPLEX FROM METROPOLITAN, AND IT WAS JOINED AS A
DEFENDANT. 

/3/ SECTION 810(C) PROVIDES: 

"WHEREVER A STATE OR LOCAL FAIR HOUSING LAW PROVIDES RIGHTS AND
REMEDIES FOR ALLEGED DISCRIMINATORY HOUSING PRACTICES WHICH ARE
SUBSTANTIALLY EQUIVALENT TO THE RIGHTS AND REMEDIES PROVIDED IN THIS
TITLE, THE SECRETARY SHALL NOTIFY THE APPROPRIATE STATE OF LOCAL AGENCY
OF ANY COMPLAINT FILED UNDER THIS TITLE WHICH APPEARS TO CONSTITUTE A
VIOLATION OF SUCH STATE OR LOCAL FAIR HOUSING LAW, AND THE SECRETARY
SHALL TAKE NO FURTHER ACTION WITH RESPECT TO SUCH COMPLAINT IF THE
APPROPRIATE STATE OR LOCAL LAW ENFORCEMENT OFFICIAL HAS, WITHIN THIRTY
DAYS FROM THE DATE THE ALLEGED OFFENSE HAS BEEN BROUGHT TO HIS
ATTENTION, COMMENCED PROCEEDINGS IN THE MATTER, OR, HAVING DONE SO,
CARRIES FORWARD SUCH PROCEEDINGS WITH REASONABLE PROMTPNESS.  IN NO
EVENT SHALL THE SECRETARY TAKE FURTHER ACTION UNLESS HE CERTIFIES THAT
IN HIS JUDGMENT, UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE, THE
PROTECTION OF THE RIGHTS OF THE PARTIES OR THE INTERESTS OF JUSTICE
REQUIRE SUCH ACTION." 

/4/  SECTION 810(D) PROVIDES IN RELEVANT PART: 

"IF WITHIN THIRTY DAYS AFTER A COMPLAINT IS FILED WITH THE SECRETARY
OR WITHIN THIRTY DAYS AFTER EXPIRATION OF ANY PERIOD OF REFERENCE UNDER
SUBSECTION (C), THE SECRETARY HAS BEEN UNABLE TO OBTAIN VOLUNTARY
COMPLIANCE WITH THIS TITLE, THE PERSON AGGRIEVED MAY, WITHIN THIRTY
DAYS THEREAFTER, COMMENCE A CIVIL ACTION IN ANY APPROPRIATE UNITED
STATES DISTRICT COURT, AGAINST THE RESPONDENT NAMED IN THE COMPLAINT,
TO ENFORCE THE RIGHTS GRANTED OR PROTECTED BY THIS TITLE, INSOFAR AS
SUCH RIGHTS RELATE TO THE SUBJECT OF THE COMPLAINT." 

/5/  LESS THAN 1% OF THE TENANTS IN THIS APARTMENT COMPLEX ARE
BLACK. 

/6/  NOTE 1, SUPRA. 

/7/  NOTE 4, SUPRA. 

/8/  WE FIND IT UNNECESSARY TO REACH THE QUESTION OF STANDING TO SUE
UNDER 42 U.S.C. 1982 WHICH IS THE BASIS OF THE THIRD CAUSE OF ACTION
ALLEGED IN THE PETITION BUT BASED ON THE SAME ALLEGATIONS AS THOSE MADE
UNDER THE CIVIL RIGHTS ACT OF 1968. 

/9/  THE DIRKSEN SUBSTITUTE, 114 CONG.REC.  4570-4573 RETAINED THE
PRESENT LANGUAGE OF SEC. 810(A) WHICH SENATOR MONDALE HAD PREVIOUSLY
INTRODUCED, ID., AT 2270, AND IT WAS IN THE BILL PASSED BY THE SENATE,
ID., AT 5992, WHICH THE HOUSE SUBSEQUENTLY PASSED, ID., AT 9621. 

THE "AGGRIEVED PERSON" PROVISION THAT WAS IN SENATOR MONDALE'S BILL
AND CARRIED INTO THE DIRKSEN BILL CAN BE FOUND ID., AT 2271 (SEC. 11(A)
OF THE MONDALE BILL). 

/10/  SEE HEARINGS BEFORE THE SUBCOMMITTEE ON HOUSING AND URBAN
AFFAIRS OF THE SENATE COMMITTEE ON BANKING AND CURRENCY ON S. 1358, S.
2280, 90TH CONG., 1ST SESS. (1967). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACKMUN AND MR. JUSTICE
POWELL JOIN, CONCURRING. 

ABSENT THE CIVIL RIGHTS ACT OF 1968, I WOULD HAVE GREAT DIFFICULTY
IN CONCLUDING THAT PETITIONERS' COMPLAINT IN THIS CASE PRESENTED A CASE
OR CONTROVERSY WITHIN THE JURISDICTION OF THE DISTRICT COURT UNDER ART.
III OF THE CONSTITUTION.  BUT WITH THAT STATUTE PURPORTING TO GIVE ALL
THOSE WHO ARE AUTHORIZED TO COMPLAIN TO THE AGENCY THE RIGHT ALSO TO
SUE IN COURT, I WOULD SUSTAIN THE STATUTE INSOFAR AS IT EXTENDS
STANDING TO THOSE IN THE POSITION OF THE PETITIONERS IN THIS CASE.  CF.
KATZENBACH V. MORGAN, 384 U.S. 641, 648-649 (1966); OREGON V. MITCHELL,
400 U.S. 112, 240, 248-249 (1970).  CONSEQUENTLY, I JOIN THE COURT'S
OPINION AND JUDGMENT. 

STEPHEN V. BOMSE ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE GEORGE H. CLYDE, JR., AND MARGARET D. BROWN.     RICHARD J.
KILMARTIN ARGUED THE CAUSE AND FILED A BRIEF FOR METROPOLITAN LIFE
INSURANCE CO.  ROBERT M. SHEA ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT PARKMERCED CORP. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL NORMAN, AND
FRANK E. SCHWELB.  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY
ROBERT KEITH BOOTH, JR., FOR THE CITY OF PALO ALTO, CALIFORNIA, AND BY
JACK GREENBERG, JAMES M. NABRIT III, CHARLES STEPHEN RALSTON, MICHAEL
DAVIDSON, WILLIAM BENNETT TURNER, AND ALICE DANIEL FOR THE NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND, INC.
..END :







NLRB V. TEXTILE WORKERS, 409 U.S. 213 


       NATIONAL LABOR RELATIONS BOARD V. GRANITE STATE JOINT BOARD,

           TEXTILE WORKERS UNION OF AMERICA, LOCAL 1029, AFL-CIO

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT

 NO. 71-711.  ARGUED NOVEMBER 13, 1972-- DECIDED DECEMBER 7,

           1972 


WHERE NEITHER THE UNION-EMPLOYER CONTRACT NOR THE UNION'S
CONSTITUTION OR BYLAWS DEFINED OR LIMITED THE CIRCUMSTANCES UNDER WHICH
A MEMBER COULD RESIGN FROM THE UNION, IT WAS AN UNFAIR LABOR PRACTICE
FOR THE UNION TO FINE EMPLOYEES WHO HAD BEEN UNION MEMBERS IN GOOD
STANDING BUT WHO HAD RESIGNED DURING A LAWFUL STRIKE AUTHORIZED BY THE
MEMBERS AND THEREAFTER RETURNED TO WORK DURING THAT STRIKE.  PP. 215
218. 

446 F.2D 369, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, STEWART, WHITE, MARSHALL, POWELL, AND REHNQUIST, JJ.,
JOINED.  BURGER, C. J., FILED A CONCURRING OPINION, POST, P. 218. 
BLACKMUN, J., FILED A DISSENTING OPINION, POST, P. 218. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT IS A UNION THAT HAD A COLLECTIVE-BARGAINING AGREEMENT WITH
AN EMPLOYER WHICH CONTAINED A MAINTENANCE-OF-MEMBERSHIP CLAUSE
PROVIDING THAT MEMBERS WERE, AS A CONDITION OF EMPLOYMENT, TO REMAIN IN
GOOD STANDING "AS TO PAYMENT OF DUES" FOR THE DURATION OF THE
CONTRACT.  NEITHER THE CONTRACT NOR THE UNION'S CONSTITUTION OR BYLAWS
CONTAINED ANY PROVISION DEFINING OR LIMITING THE CIRCUMSTANCES UNDER
WHICH A MEMBER COULD RESIGN.  A FEW DAYS BEFORE THE COLLECTIVE
AGREEMENT EXPIRED, THE UNION MEMBERSHIP VOTED TO STRIKE IF NO AGREEMENT
WAS REACHED BY A GIVEN DATE.  NO AGREEMENT WAS REACHED IN THE SPECIFIED
PERIOD, SO THE STRIKE AND ATTENDANT PICKETING COMMENCED.  SHORTLY
THEREAFTER, THE UNION HELD A MEETING AT WHICH THE MEMBERSHIP RESOLVED
THAT ANY MEMBER AIDING OR ABETTING THE EMPLOYER DURING THE STRIKE WOULD
BE SUBJECT TO A $2,000 FINE. 

ABOUT SIX WEEKS LATER, TWO MEMBERS SENT THE UNION THEIR LETTERS OF
RESIGNATION.  SIX MONTHS OR MORE LATER, 29 OTHER MEMBERS RESIGNED. 
THESE 31 EMPLOYEES RETURNED TO WORK. 

THE UNION GAVE THEM NOTICE THAT CHARGES HAD BEEN MADE AGAINST THEM
AND THAT ON GIVEN DATES THE UNION WOULD HOLD TRIALS.  NONE OF THE 31
EMPLOYEES APPEARED ON THE DATES PRESCRIBED; BUT THE TRIALS NONETHELESS
TOOK PLACE EVEN IN THE ABSENCE OF THE EMPLOYEES AND FINES WERE IMPOSED
ON ALL.  /1/  SUITS WERE FILED BY THE UNION TO COLLECT THE FINES.  BUT
THE OUTCOME WAS NOT DETERMINED BECAUSE THE EMPLOYEES FILED UNFAIR LABOR
PRACTICE CHARGES WITH THE NATIONAL LABOR RELATIONS BOARD AGAINST THE
UNION. 

THE UNFAIR LABOR PRACTICE CHARGED WAS THAT THE UNION RESTRAINED OR
COERCED THE EMPLOYEES "IN THE EXERCISE OF THE RIGHTS GUARANTEED IN
THAT THE UNION HAD VIOLATED SEC. 8(B)(1).  187 N.L.R.B. 636.  THE COURT
OF APPEALS DENIED ENFORCEMENT OF THE BOARD'S ORDER.  446 F.2D 369.  THE
CASE IS HERE ON CERTIORARI, 405 U.S. 987. 

WE HELD IN NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S. 175, THAT A
UNION DID NOT VIOLATE SEC. 8(B)(1) BY FINING MEMBERS WHO WENT TO WORK
DURING A LAWFUL STRIKE AUTHORIZED BY THE MEMBERSHIP AND BY SUING TO
COLLECT THE FINES.  THE COURT REVIEWED AT LENGTH IN THAT OPINION THE
LEGISLATIVE HISTORY OF SECS. 7 AND 8(B)(1), AND CONCLUDED BY A CLOSE
MAJORITY VOTE THAT THE DISCIPLINARY MEASURES TAKEN BY THE UNION AGAINST
ITS MEMBERS ON THOSE FACTS WERE WITHIN THE AMBIT OF THE UNION'S CONTROL
OVER ITS INTERNAL AFFAIRS.  BUT THE SANCTIONS ALLOWED WERE AGAINST
THOSE WHO "ENJOYED FULL UNION MEMBERSHIP."  ID., AT 196. 

YET WHEN A MEMBER LAWFULLY RESIGNS FROM THE UNION, ITS POWER OVER
HIM ENDS.  WE NOTED IN SCOFIELD V. NLRB, 394 U.S. 423, 429, THAT IF A
UNION RULE "INVADES OR FRUSTRATES AN OVERRIDING POLICY OF THE LABOR
LAWS THE RULE MAY NOT BE ENFORCED, EVEN BY FINE OR EXPULSION, WITHOUT
VIOLATING SEC. 8(B)(1)."  ON THE FACTS, WE HELD THAT SCOFIELD, WHERE
FINES WERE IMPOSED ON MEMBERS BY THE UNION, FELL WITHIN THE AMBIT OF
ALLIS-CHALMERS.  BUT WE DREW THE LINE BETWEEN PERMISSIBLE AND
IMPERMISSIBLE UNION ACTION AGAINST MEMBERS AS FOLLOWS: 

" . . . SEC. 8(B)(1) LEAVES A UNION FEE TO ENFORCE A PROPERLY
ADOPTED RULE WHICH REFLECTS A LEGITIMATE UNION INTEREST, IMPAIRS NO
POLICY CONGRESS HAS IMBEDDED IN THE LABOR LAWS, AND IS REASONABLY
ENFORCED AGAINST UNION MEMBERS WHO ARE FREE TO LEAVE THE UNION AND
ESCAPE THE RULE."  ID., AT 430.  UNDER SEC. 7 OF THE ACT THE EMPLOYEES
HAVE "THE RIGHT TO REFRAIN FROM ANY OR ALL" CONCERTED ACTIVITIES
RELATING TO COLLECTIVE BARGAINING OR MUTUAL AID AND PROTECTION, AS WELL
AS THE RIGHT TO JOIN A UNION AND PARTICIPATE IN THOSE CONCERTED
ACTIVITIES.  WE HAVE HERE NO PROBLEM OF CONSTRUING A UNION'S
CONSTITUTION OR BYLAWS DEFINING OR LIMITING THE CIRCUMSTANCES UNDER
WHICH A MEMBER MAY RESIGN FROM THE UNION.  /4/  WE HAVE, THEREFORE,
ONLY TO APPLY THE LAW WHICH NORMALLY IS REFLECTED IN OUR FREE
INSTITUTIONS-- THE RIGHT OF THE INDIVIDUAL TO JOIN OR TO RESIGN FROM
ASSOCIATIONS, AS HE SEES FIT "SUBJECT OF COURSE TO ANY FINANCIAL
OBLIGATIONS DUE AND OWING" THE GROUP WITH WHICH HE WAS ASSOCIATED. 
COMMUNICATIONS WORKERS V. NLRB, 215 F.2D 835, 838. 

THE SCOFIELD CASE INDICATES THAT THE POWER OF THE UNION OVER THE
MEMBER IS CERTAINLY NO GREATER THAN THE UNION-MEMBER CONTRACT.  WHERE A
MEMBER LAWFULLY RESIGNS FROM A UNION AND THEREAFTER ENGAGES IN CONDUCT
WHICH THE UNION RULE PROSCRIBES, THE UNION COMMITS AN UNFAIR LABOR
PRACTICE WHEN IT SEEKS ENFORCEMENT OF FINES FOR THAT CONDUCT.  THAT IS
TO SAY, WHEN THERE IS A LAWFUL DISSOLUTION OF A UNION-MEMBER RELATION,
THE UNION HAS NO MORE CONTROL OVER THE FORMER MEMBER THAN IT HAS OVER
THE MAN IN THE STREET. 

THE COURT OF APPEALS GAVE WEIGHT TO THE FACT THAT THE RESIGNING
EMPLOYEES HAD PARTICIPATED IN THE VOTE TO STRIKE.  WE GIVE THAT FACTOR
LITTLE WEIGHT.  THE FIRST TWO MEMBERS RESIGNED FROM THE UNION FROM ONE
TO TWO MONTHS AFTER THE STRIKE HAD BEGUN.  THE OTHERS DID SO FROM SEVEN
TO 12 MONTHS AFTER ITS COMMENCEMENT.  AND THE STRIKE WAS STILL IN
PROGRESS 18 MONTHS AFTER ITS INCEPTION.  EVENTS OCCURRING AFTER THE
CALLING OF A STRIKE MAY HAVE UNSETTLING EFFECTS, LEADING A MEMBER WHO
VOTED TO STRIKE TO CHANGE HIS MIND.  THE LIKELY DURATION OF THE STRIKE
MAY INCREASE THE SPECTER OF HARDSHIP TO HIS FAMILY; THE EASE WITH WHICH
THE EMPLOYER REPLACES THE STRIKERS MAY MAKE THE STRIKE SEEM LESS
PROVIDENT.  WE DO NOT NOW DECIDE TO WHAT EXTENT THE CONTRACTUAL
RELATIONSHIP BETWEEN UNION AND MEMBER MAY CURTAIL THE FREEDOM TO
RESIGN.  BUT WHERE, AS HERE, THERE ARE NO RESTRAINTS ON THE RESIGNATION
OF MEMBERS, /5/  WE CONCLUDE THAT THE VITALITY OF SEC. 7 REQUIRES THAT
THE MEMBER BE FREE TO REFRAIN IN NOVEMBER FROM THE ACTIONS HE ENDORSED
IN MAY AND THAT HIS SEC. 7 RIGHTS ARE NOT LOST BY A UNION'S PLEA FOR
SOLIDARITY OR BY ITS PRESSURES FOR CONFORMITY AND SUBMISSION TO ITS
REGIME. 

              REVERSED. 

/1/  FINES EQUIVALENT TO A DAY'S WAGES FOR EACH DAY WORKED DURING
THE STRIKE WERE IMPOSED. 

/2/  SECTION 7 PROVIDES IN RELEVANT PART: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES . . . ."  61 STAT. 140, 29 U.S.C. 157. 

/3/  SECTION 8(B).  "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A
LABOR ORGANIZATION OR ITS AGENTS-- 

"(1) TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7:  PROVIDED, THAT THIS PARAGRAPH SHALL
NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN . .
. . "  61 STAT. 141, 29 U.S.C. 158(B). 

/4/  UNION-SECURITY ARRANGEMENTS REQUIRING EMPLOYEES TO PAY DUES,
THOUGH NOT REQUIRING MEMBERSHIP, HAVE BEEN HELD NOT TO BE AN UNFAIR
LABOR PRACTICE AND THEREFORE NOT AN EXCUSE FOR THE EMPLOYER TO REFUSE
TO BARGAIN COLLECTIVELY FOR SUCH AN AGREEMENT, AT LEAST WHERE STATE LAW
ALLOWS EMPLOYEES THAT OPTION.  NLRB V. GENERAL MOTORS CORP., 373 U.S.
734. 

/5/  THE UNION ARGUES THAT ITS PRACTICE WAS TO ACCEPT RESIGNATIONS
OF MEMBERS ONLY DURING AN ANNUAL TEN-DAY "ESCAPE PERIOD," DURING WHICH
TIME THE EMPLOYEES WERE ALLOWED TO REVOKE THEIR "DUES CHECK-OFF"
AUTHORIZATIONS.  THE COURT OF APPEALS REJECTED THAT ARGUMENT, SAYING
THERE WAS NO EVIDENCE THAT THE EMPLOYEES KNEW OF THIS PRACTICE OR THAT
THEY HAD CONSENTED TO ITS LIMITATION ON THEIR RIGHT TO RESIGN.  446
F.2D 369, 372. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN THE COURT'S OPINION BECAUSE FOR ME THE INSTITUTIONAL NEEDS OF
THE UNION, IMPORTANT THOUGH THEY ARE, DO NOT OUTWEIGH THE RIGHTS AND
NEEDS OF THE INDIVIDUAL.  THE BALANCE IS CLOSE AND DIFFICULT; UNIONS
HAVE NEED FOR SOLIDARITY AND AT NO TIME IS THAT NEED MORE PRESSING THAN
UNDER THE STRESS OF ECONOMIC CONFLICT.  YET WE HAVE GIVEN SPECIAL
PROTECTION TO THE ASSOCIATIONAL RIGHTS OF INDIVIDUALS IN A VARIETY OF
CONTEXTS; THROUGH SEC. 7 OF THE LABOR ACT, CONGRESS HAS MANIFESTED ITS
CONCERN WITH THOSE RIGHTS IN THE SPECIFIC CONTEXT OF OUR NATIONAL
SCHEME OF COLLECTIVE BARGAINING.  WHERE THE INDIVIDUAL EMPLOYEE HAS
FREELY CHOSEN TO EXERCISE HIS LEGAL RIGHT TO ABANDON THE PRIVILEGES OF
UNION MEMBERSHIP, IT IS NOT FOR US TO IMPOSE THE OBLIGATIONS OF
CONTINUED MEMBERSHIP. 

MR. JUSTICE BLACKMUN, DISSENTING. 

ON SEPTEMBER 14, 1968, JUST SIX DAYS PRIOR TO THE EXPIRATION OF THE
COLLECTIVE-BARGAINING AGREEMENT THEN IN FORCE, THE UNION MEMBERSHIP
VOTED TO STRIKE.  THE STRIKE BEGAN SEPTEMBER 20.  ON SEPTEMBER 21 THE
MEMBERSHIP UNANIMOUSLY /1/  ADOPTED A RESOLUTION THAT ANYONE AIDING OR
ABETTING THE COMPANY DURING THE STRIKE WOULD BE SUBJECT TO A FINE NOT
EXCEEDING $2,000.  EACH OF THE EMPLOYEES INVOLVED HERE VOTED FOR BOTH
OF THESE RESOLUTIONS AND PARTICIPATED IN THE STRIKE.  /2/  EACH WAS A
MEMBER OF THE UNION DURING THE PERIOD IN WHICH THE VOTES WERE TAKEN AND
THE STRIKE BEGAN.  MEMBERSHIP WAS VOLUNTARY, AND PERSONS WHO BECAME
MEMBERS WERE FREE TO RESIGN AT ANY TIME.  /3/ 

IN NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S. 175 (1967), THIS COURT
HELD THAT A UNION COULD ENFORCE IN A STATE COURT A FINE LEVIED AGAINST
A STRIKEBREAKING MEMBER.  THE COURT NOTED THAT, AT THE TIME SEC.
8(B)(1)(A) WAS ENACTED, "PROVISIONS DEFINING PUNISHABLE CONDUCT AND THE
PROCEDURES FOR TRIAL AND APPEAL CONSTITUTED PART OF THE CONTRACT
BETWEEN MEMBER AND UNION AND THAT '(THE COURTS' ROLE IS BUT TO ENFORCE
THE CONTRACT.'"  ID., AT 182.  THE SCOPE OF SEC. 8(B)(1)(A) WAS
CONFINED TO RESTRAINT OR COERCION VISITED UPON UNION MEMBERS IN THE
COURSE OF ORGANIZATIONAL CAMPAIGNS, ID., AT 186-188, OR BY ARBITRARY
AND UNDEMOCRATIC UNION LEADERSHIP, ID., AT 188-189, OR BY COERCION THAT
PREVENTED EMPLOYEES NOT IN THE BARGAINING UNIT FROM GOING TO WORK, ID.,
AT 189 AND N. 25.  THAT SECTION WAS NOT VIEWED AS PROHIBITING "THE
IMPOSITION OF FINES ON MEMBERS WHO DECLINE TO HONOR AN AUTHORIZED
STRIKE AND ATTEMPTS TO COLLECT SUCH FINES."  ID., AT 195.  FINDING, AS
A CONSEQUENCE, NO RESTRAINT OR COERCION BY THE UNION ON THE EMPLOYEES'
SEC. 7 RIGHTS, THE COURT SUSTAINED THE UNION'S POWER TO ENFORCE THE
STRIKEBREAKING FINES IN STATE COURT. 

TODAY THE COURT REACHES AN OPPOSITE RESULT ON THE BASIS OF TWO
FACTS:  "NEITHER THE CONTRACT NOR THE UNION'S CONSTITUTION OR BYLAWS
CONTAINED ANY PROVISION DEFINING OR LIMITING THE CIRCUMSTANCES UNDER
WHICH A MEMBER COULD RESIGN"; AND THE STRIKEBREAKING EMPLOYEES RESIGNED
BEFORE RETURNING TO WORK, THUS EFFECTING "A LAWFUL DISSOLUTION OF (THE)
UNION-MEMBER RELATION."  AS TO THE FIRST FACT, I AM CONVINCED THAT THE
PRESENCE OF A PROVISION IN THE UNION CONSTITUTION, FOR EXAMPLE, SHOULD
ALWAYS MAKE A DIFFERENCE WITH RESPECT TO THE EXISTENCE OF AN
ENFORCEABLE, VOLUNTARY OBLIGATION ON THE PART OF AN EMPLOYEE TO REFRAIN
FROM STRIKEBREAKING ACTIVITY.  IN FACT, IT SEEMS LIKELY THAT THE THREE
FACTORS OF A MEMBER'S STRIKE VOTE, HIS RATIFICATION OF STRIKEBREAKING
PENALTIES, AND HIS ACTUAL PARTICIPATION IN THE STRIKE, WOULD BE FAR
MORE RELIABLE INDICIA OF HIS OBLIGATION TO THE UNION AND ITS MEMBERS
THAN THE PRESENCE OF BOILERPLATE PROVISIONS IN A UNION'S CONSTITUTION. 
AS TO THE SECOND FACT, WHILE MEMBERSHIP IN THE UNION MAY WELL HAVE
IMPLICATIONS WITH RESPECT TO THE UNION'S POWER OVER THE RESIGNED
MEMBER, I AM HARD PUT TO UNDERSTAND WHY THIS FACT, ALONE, RESULTS IN
RESTRAINT OR COERCION UNDER SEC. 8(B)(1)(A), WHEN THE IMPOSITION OF
FINES FOR SIMILAR CONDUCT BY MEMBERS, AND THEIR ENFORCEMENT IN STATE
COURTS, DOES NOT FALL WITHIN THAT SECTION'S PROHIBITION.  NLRB V. ALLIS
CHALMERS MFG. CO., SUPRA.  ARE AN EMPLOYEE'S SEC. 7 RIGHTS ANY MORE AT
STAKE HERE THAN THEY ARE WHERE, AS IN ALLIS-CHALMERS, THE EMPLOYEE
ENGAGES IN THE SAME ACTIVITY BUT STOPS SHORT OF RESIGING FROM THE
UNION? 

I CANNOT JOIN THE COURT'S OPINION, WHICH SEEMS TO ME TO EXALT THE
FORMALITY OF RESIGNATION OVER THE SUBSTANCE OF THE VARIOUS INTERESTS
AND NATIONAL LABOR POLICIES THAT ARE AT STAKE HERE.  UNION ACTIVITY, BY
ITS VERY NATURE, IS GROUP ACTIVITY, AND IS GROUNDED ON THE NOTION THAT
STRENGTH CAN BE GARNERED FROM UNITY, SOLIDARITY, AND MUTUAL
COMMITMENT.  THIS CONCEPT IS OF PARTICULAR FORCE DURING A STRIKE, WHERE
THE INDIVIDUAL MEMBERS OF THE UNION DRAW STRENGTH FROM THE COMMITMENTS
OF FELLOW MEMBERS, AND WHERE THE ACTIVITIES CARRIED ON BY THE UNION
REST FUNDAMENTALLY ON THE MUTUAL RELIANCE THAT INHERES IN THE "PACT." 
SIMILAR MUTUAL COMMITMENTS ARISING FROM PERHAPS LESS COMPELLING
CIRCUMSTANCES HAVE BEEN HELD TO BE LEGALLY ENFORCEABLE.  SEE 1A A.
CORBIN, CONTRACTS SEC. 198, PP. 210-212 (1963). 

A UNION'S POWER TO ENFORCE THESE MUTUAL COMMITMENTS ON BEHALF OF ITS
MEMBERS IS OF PARTICULAR IMPORTANCE DURING THE COURSE OF A STRIKE. 
"THE ECONOMIC STRIKE AGAINST THE EMPLOYER IS THE ULTIMATE WEAPON IN
LABOR'S ARSENAL FOR ACHIEVING AGREEMENT UPON ITS TERMS, AND '(THE POWER
TO FINE OR EXPEL STRIKEBREAKERS IS ESSENTIAL IF THE UNION IS TO BE AN
EFFECTIVE BARGAINING AGENT . . . .'"  388 U.S.,AT 181.  THE 31
EMPLOYEES INVOLVED IN THIS CASE, JOINED WITH THEIR THEN-FELLOW MEMBERS,
VOTED TO STRIKE AS WELL AS TO IMPOSE SANCTIONS ON THOSE WHO BROKE
RANKS, /4/  AND PARTICIPATED IN THE STRIKE.  THEIR VOTES WERE VOLUNTARY
AND UNCOERCED.  THEY HAD NOTICE OF THE FINES, AND RAISED NO OBJECTIONS,
PERHAPS FEELING THAT THE HARDSHIPS THAT WOULD BEFALL THEM DURING THE
STRIKE WOULD BE COMPENSATED BY ULTIMATE VICTORY AT THE BARGAINING
TABLE.  THEY DID NOT ATTEMPT TO BRING THE MATTER TO THE VOTE OF THE
MEMBERSHIP, A MAJORITY OF WHICH COULD HAVE, AND LATER DID, /5/
TERMINATE THE STRIKE.     I AM NOT CONVINCED THAT IN THE STRIKE
CONTEXT, WHERE PARAMOUNT UNION AND EMPLOYEE INTERESTS ARE AT STAKE,
UNION ENFORCEMENT OF THIS MUTUAL OBLIGATION BY REASONABLE FINES
"INVADES OR FRUSTRATES AN OVERRIDING POLICY OF THE LABOR LAWS." 
SCOFIELD V. NLRB, 394 U.S. 423, 429 (1969).  /6/  THE COURT OF APPEALS
CONCLUDED THAT SEC. 7 OF THE ACT, GRANTING EMPLOYEES THE RIGHT "TO
REFRAIN FROM ANY OR ALL" COLLECTIVE ACTIVITIES, INCLUDING MEMBERSHIP
AND PARTICIPATION IN STRIKES, WAS NOT INVOLVED IN THIS CASE. 
EMPHASIZING THE MEANING OF THE WORD "REFRAIN," THE COURT CONCLUDED THAT
"ALTHOUGH SEC. 7 GIVES AN EMPLOYEE THE RIGHT TO REFUSE TO UNDERTAKE AND
INVOLVE HIMSELF IN UNION ACTIVITIES, IT DOES NOT NECESSARILY GIVE HIM
THE RIGHT TO ABANDON THESE ACTIVITIES IN MIDCOURSE ONCE HE HAS
UNDERTAKEN THEM VOLUNTARILY."  446 F.2D 369, 373.  SEE H.R. CONF. REP.
NO. 510, 80TH CONG., 1ST SESS., 39-40 (1947).  I BELIEVE THIS NOTION
EXPRESSED BY THE COURT OF APPEALS IS APPLICABLE IN THE LIMITED CONTEXT
OF THE ECONOMIC STRIKE.  IN MY VIEW, THE POLICY OF SEC. 7 WOULD NOT BE
FRUSTRATED BY A HOLDING THAT AN EMPLOYEE COULD, IN THE CIRCUMSTANCES OF
THIS CASE, KNOWINGLY WAIVE HIS SEC. 7 RIGHT TO RESIGN FROM THE UNION
AND TO RETURN TO WORK WITHOUT SANCTION.  /7/  THE MUTUAL RELIANCE OF
HIS FELLOW MEMBERS WHO ABIDE BY THE STRIKE FOR WHICH THEY HAVE ALL
VOTED OUTWEIGHS, IN THE CIRCUMSTANCES HERE PRESENTED, THE ADMITTED
INTERESTS OF THE INDIVIDUAL WHO RESIGNS TO RETURN TO WORK.  HE MAY
STILL RESIGN, AND HE MAY ALSO RETURN TO WORK, BUT NOT WITHOUT THE
PROSPECT OF HAVING TO PAY A REASONABLE UNION FINE FOR WHICH HE VOTED. 

THE EMPLOYEES WHO RESIGNED HAVE NOT ASSERTED ANY CHANGED
CIRCUMSTANCES OR UNDUE HARDSHIPS THAT WOULD JUSTIFY THEIR RESIGNATIONS
AND RETURN TO WORK.  NOR DO THEY CLAIM THAT THE FINES IMPOSED ON THEM
WERE UNREASONABLE.  /8/  PERHAPS THESE MATTERS COULD BE ASSERTED BEFORE
THE BOARD OR IN DEFENSE IN THE STATE COURT PROCEEDINGS UNDER PREVAILING
STATE LAW.  AS THESE ISSUES HAVE NOT BEEN ARGUED IN THIS CASE, THEY
NEED NOT BE RESOLVED AT THIS TIME. 

I WOULD AFFIRM THE DECISION BELOW. 

/1/  THERE IS A MILD DISCREPANCY IN THE RECORD AS TO WHETHER THE
VOTE ON THE STRIKEBREAKING RESOLUTION WAS UNANIMOUS.  IN HIS FIRST
OPINION, THE TRIAL EXAMINER INDICATED THAT THE VOTE WAS UNANIMOUS. 
(PET. FOR CERT. 23A.)  IN A SECOND OPINION, THE EXAMINER INDICATED THAT
THERE WAS ONE DISSENTING VOTE. 

/2/  THE PARTIES STIPULATED BEFORE THE TRIAL EXAMINER THAT ALL 31
EMPLOYEES PARTICIPATED IN THE STRIKE VOTE, AND VOTED IN FAVOR OF THE
STRIKE.  APP. 45.  IT IS LESS CLEAR WHETHER EACH OF THE EMPLOYEES VOTED
IN FAVOR OF THE FINE.  THESE ARE MATTERS THAT WOULD BE RESOLVED IN THE
STATE COURT PROCEEDINGS. 

/3/  THE UNION AND THE COMPANY HAD NO UNION SHOP CLAUSE IN THE 1965
COLLECTIVE-BARGAINING AGREEMENT.  THE UNION CONSTITUTION AND BYLAWS
CONTAINED NO EXPRESS PROVISION LIMITING MEMBERS' RIGHTS TO RESIGN.  IN
THE ABSENCE OF SUCH A PROVISION, THE MEMBERS COULD SUBMIT VOLUNTARY
RESIGNATIONS AT ANY TIME.  NLRB V. MECHANICAL & ALLIED PRODUCTION
WORKERS, LOCAL 444, 427 F.2D 883 (CA1 1970); COMMUNICATIONS WORKERS V.
NLRB, 215 F.2D 835, 838-839 (CA2 1954).  AND, AS THE COLLECTIVE
BARGAINING AGREEMENT WAS NO LONGER IN FORCE AT THE TIME OF THE
RESIGNATIONS, THE RETENTION-OF-MEMBERSHIP PROVISION WAS NO LONGER IN
EFFECT.  FINALLY, THE TRIAL EXAMINER FOUND NO EVIDENCE THAT THE MEMBERS
KNEW OF THE UNION'S "ESTABLISHED PRACTICE" OF ACCEPTING RESIGNATIONS
ONLY DURING THE ANNUAL 10-DAY ESCAPE PERIOD, AND IN THE ABSENCE OF SUCH
KNOWLEDGE THAT PRACTICE CANNOT BE ENFORCED. 

/4/  THE REASONABLENESS OF THE FINES IMPOSED BY THE UNION IS NOT IN
ISSUE HERE. 

/5/  COUNSEL FOR RESPONDENT STATED IN ORAL ARGUMENT THAT THE UNION
MEMBERSHIP ULTIMATELY VOTED TO TERMINATE THE STRIKE AND ACCEPT THE
COMPANY'S OFFER.  TR. OF ORAL ARG. 29. 

/6/  THE DECISION IN SCOFIELD V. NLRB, 394 U.S. 423, 430 (1969),
INDICATED, IN DICTUM, THAT AN EMPLOYEE COULD AVOID A UNION PRODUCTIVITY
RULE BY RESIGNING FROM MEMBERSHIP.  THAT STATEMENT SHOULD NOT BE
CONSTRUED TO MEAN THAT EMPLOYEES CAN NEVER BIND THEMSELVES TO FULFILL
UNION OBLIGATIONS WHERE, AS HERE, THE ENFORCEMENT OF THAT OBLIGATION IS
ESSENTIAL TO MAINTAIN UNION DISCIPLINE DURING A STRIKE.  SEE RECENT
CASES, 85 HARV.L.REV.  1669, 1674-1675, N. 23 (1972); RECENT DECISIONS,
40 GEO.WASH.L.REV.  330, 338-339 (1971). 

/7/  IN OTHER CONTEXTS IT HAS BEEN HELD THAT SEC. 7 RIGHTS MAY BE
WAIVED.  E.G., NLRB V. SHOP RITE FOODS, INC., 430 F.2D 786 (CA5 1970). 
INDEED, THIS COURT'S OPINIONS IN ALLIS-CHALMERS AND SCOFIELD IMPLICITLY
RECOGNIZE THAT SEC. 7 RIGHTS CAN BE WAIVED.  NLRB V. ALLIS-CLALMERS
MFG. CO., 388 U.S. 175, 200 (1967) (BLACK, J., DISSENTING). 

/8/  THE GENERAL COUNSEL ARGUED BEFORE THE TRIAL EXAMINER THAT THE
FINES IMPOSED WERE UNREASONABLE, AND THAT THE IMPOSITION OF AN
UNREASONABLE FINE WOULD CONSTITUTE A VIOLATION OF SEC. 8(B)(1)(A).  THE
TRIAL EXAMINER DID NOT PASS ON THIS ISSUE, AS HE CONCLUDED THAT THE
IMPOSITION OF ANY FINE ON EMPLOYEES WHO RESIGNED FROM MEMBERSHIP IN THE
UNION AND RETURNED TO WORK VIOLATED SEC. 8(B)(1)(A).  NEITHER THE BOARD
NOR THE COURT OF APPEALS PASSED ON THIS ISSUE, AND IT HAS NOT BEEN
ARGUED BEFORE THIS COURT. 

NORTON J. COME ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ALLAN A. TUTTLE, AND PETER G.
NASH. 

HAROLD B. ROITMAN ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 

MILTON SMITH, JERRY KRONENBERG, AND GERARD C. SMETANA FILED A BRIEF
FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICUS CURIAE
URGING REVERSAL. 

PLATO E. PAPPS, LOUIS POULTON, AND BERNARD DUNAU FILED A BRIEF FOR
THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL
CIO, AS AMICUS CURIAE, URGING AFFIRMANCE. 
..END :









SWENSON V. STIDHAM, 409 U.S. 224 


       SWENSON, WARDEN V. STIDHAM

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 71-224.  ARGUED OCTOBER 11, 1972-- DECIDED DECEMBER 7,

           1972 


DURING RESPONDENT'S TRIAL FOR MURDER HE CHALLENGED THE VOLUNTARINESS
OF HIS CONFESSION.  A FULL EVIDENTIARY HEARING WAS HELD OUTSIDE THE
JURY'S PRESENCE, FOLLOWING WHICH THE TRIAL COURT HELD THE CONFESSION
ADMISSIBLE.  AFTER AFFIRMANCE OF RESPONDENT'S CONVICTION ON APPEAL,
RESPONDENT SOUGHT STATE POST-CONVICTION RELIEF.  THE MISSOURI SUPREME
COURT REVERSED THE DENIAL OF RESPONDENT'S MOTION TO VACATE, AND AN
EVIDENTIARY HEARING WAS HELD BY THE ST. LOUIS CIRCUIT COURT ON THE
VOLUNTARINESS ISSUE.  THAT COURT CONCLUDED THAT THE TRIAL JUDGE HIMSELF
HAD FOUND THE CONFESSION VOLUNTARY AND THUS COMPLIED WITH JACKSON V.
DENNO, 378 U.S. 368.  THE MISSOURI SUPREME COURT AFFIRMED, AND HELD
ADDITIONALLY THAT RESPONDENT HAD BEEN GIVEN A NEW EVIDENTIARY HEARING
BY THE ST. LOUIS COURT AND THAT HIS CONFESSION HAD AGAIN BEEN FOUND TO
BE VOLUNTARY.  RESPONDENT THEN SOUGHT FEDERAL HABEAS CORPUS.  THE
DISTRICT COURT DETERMINED THAT JACKSON V. DENNO HAD BEEN SATISFIED. 
THE COURT OF APPEALS, CONCLUDING THAT THE TRIAL JUDGE, AS PERMITTED BY
THEN-PREVAILING STATE LAW, HAD NOT MADE THE VOLUNTARINESS FINDING
HIMSELF BUT HAD SUBMITTED THE ISSUE TO THE JURY, REVERSED AND HELD THAT
RESPONDENT WAS ENTITLED TO A NEW HEARING.  HELD:  THE TRIAL COURT'S
JACKSON V. DENNO ERROR, IF ANY, WAS REMEDIED BY THE CONSTITUTIONALLY
ADEQUATE EVIDENTIARY HEARING GIVEN RESPONDENT ON THE VOLUNTARINESS
ISSUE BY THE ST. LOUIS COURT, WHICH THE MISSOURI SUPREME COURT UPHELD
AFTER CONCLUDING FROM ITS INDEPENDENT EXAMINATION OF THE RECORD THAT
THE CONFESSION WAS VOLUNTARY.  THE COURT OF APPEALS THEREFORE ERRED IN
HOLDING THAT RESPONDENT WAS ENTITLED TO STILL ANOTHER VOLUNTARINESS
HEARING IN THE STATE COURT.  PP. 228-231. 

443 F.2D 1327, REVERSED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE HAS A LONG AND TORTURED HISTORY AND IS NOT YET CONCLUDED. 
AT THIS JUNCTURE THE QUESTION IS WHETHER, ABSENT FURTHER STATE COURT
PROCEEDINGS TO DETERMINE THE VOLUNTARINESS OF HIS CONFESSION,
RESPONDENT'S 1955 CONVICTION FOR MURDER IS VULNERABLE TO ATTACK UNDER
THE FOURTEENTH AMENDMENT AS CONSTRUED AND APPLIED IN JACKSON V. DENNO,
378 U.S. 368 (1964). 

IN JULY 1955, RESPONDENT STIDHAM WAS CONVICTED OF FIRST-DEGREE
MURDER OF A FELLOW INMATE DURING A RIOT.  HE WAS SENTENCED TO LIFE
IMPRISONMENT.  HE WAS REPRESENTED BY EXPERIENCED COUNSEL WHO CHALLENGED
HIS CONFESSION WHEN IT WAS OFFERED AT TRIAL.  A FULL EVIDENTIARY
HEARING OUTSIDE THE PRESENCE OF THE JURY WAS HELD.  STIDHAM'S TESTIMONY
AS TO THE RELEVANT CIRCUMSTANCES SURROUNDING HIS CONFESSION WAS IN
SHARP CONFLICT WITH THAT OF THE OFFICERS.  HIS CLAIM WAS THAT HE HAD
BEEN SUBJECTED TO GROSS PHYSICAL ABUSE; THE OFFICERS DENIED THE CLAIM. 
AT THE CONCLUSION OF THE HEARING, THE TRIAL JUDGE ADMITTED THE
CONFESSION WITH THE FOLLOWING RULING: 

     "THE COURT:  (EXHIBIT) 16 AND 16-1, IT IS THE COURT'S OPINION

  THAT THE MATTERS CONCERNING THE STATEMENT SHOULD BE OFFERED IN

  THE PRESENCE OF THE JURY, SUBJECT OF COURSE TO ANY ATTACKS AS TO

  ITS CREDIBILITY BY THE DEFENDANT.  THE DEFENDANT HAS OF COURSE

  THE RIGHT TO PROCEED TO CHALLENGE THE VOLUNTARINESS OF THE

  STATEMENT AND CONFESSION, EVEN BEFORE THE JURY, BUT IT IS THE

  COURT'S OPINION THAT UPON THE EVIDENCE THAT HAS BEEN OFFERED

  BEFORE THE COURT AND OUTSIDE OF THE HEARING OF THE JURY, . . .

 THE STATEMENT IS AND SHOULD BE ADMISSIBLE IN EVIDENCE, SUBJECT TO

  FURTHER EXAMINATIONS OF THE WITNESSES WHICH MIGHT BE CONDUCTED,

  SO WE MAY PROCEED WITH SERGEANT LITTLE, AS TO HIS IDENTIFICATION

  BEFORE THE JURY OF THE STATEMENT IN QUESTION, EXHIBIT 16 AND

  16-1. 

     "MR. HENNELLY:  IN OTHER WORDS, THE COURT IS OVERRULING MY

  MOTION, AND REQUEST OF THE COURT TO HOLD AS A MATTER OF LAW, THAT

THOSE STATEMENTS WERE INVOLUNTARY, IS THAT RIGHT? 

"THE COURT:  THAT IS RIGHT.  MR. SHERIFF WILL YOU BRING THE JURY BACK
IN?" 

STIDHAM'S CONVICTION WAS AFFIRMED ON APPEAL IN STATE V. STIDHAM, 305
S.W.2D 7 (MO. 1957).  A MOTION TO VACATE WAS DENIED AND THE DENIAL
AFFIRMED, 403 S.W.2D 616 (MO. 1966).  ON A SECOND MOTION TO VACATE,
HOWEVER, THE MISSOURI SUPREME COURT ORDERED AN EVIDENTIARY HEARING IN
ACCORDANCE WITH ITS NEWLY REVISED POST-CONVICTION PROCEDURES.  STATE V.
STIDHAM, 415 S.W.2D 297 (1967).  AMONG THE ISSUES TO BE HEARD AND
DECIDED WAS WHETHER STIDHAM'S CONVICTION WAS INFIRM UNDER JACKSON V.
DENNO AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

IN COMPLIANCE WITH THIS ORDER, AN EVIDENTIARY HEARING WAS HELD ON
DECEMBER 5, 1968, BEFORE JUDGE GODFREY IN THE CIRCUIT COURT OF THE CITY
OF ST. LOUIS.  THE COURT HEARD ORAL TESTIMONY FROM BOTH STIDHAM AND
WITNESSES OFFERED BY THE STATE; IT ALSO HAD BEFORE IT THE TRANSCRIPT OF
THE PRIOR PROCEEDINGS AS WELL AS CERTAIN STIPULATIONS OF FACT BY THE
PARTIES.  IN APRIL 1969, THE COURT ISSUED ITS OPINION, WITH FINDINGS OF
FACT AND CONCLUSIONS OF LAW, DENYING THE RELIEF REQUESTED.  WITH
RESPECT TO THE CONFESSION ISSUE, THE COURT FIRST CONCLUDED THAT THE
JUDGE HIMSELF AT STIDHAM'S TRIAL HAD FOUND THE CONFESSION VOLUNTARY AND
HAD THUS COMPLIED WITH THE RULE OF JACKSON V. DENNO.  AS TO
VOLUNTARINESS VEL NON, THE COURT SAID: 

     "AS TO SUBPARAGRAPH B CONCERNING THE AVERMENT THAT 'THE

  OVERWHELMING EVIDENCE WAS THAT THE STATEMENT WAS INVOLUNTARY

  BECAUSE OF COERCION EXERTED ON MOVANT,' THIS CONTENTION WAS

  RAISED AND PROFUSELY LITIGATED IN STATE VS. STIDHAM, SUPRA, AND

  THE COURT FINDS IT NO LONGER OPEN TO QUESTION HERE.  STATE VS.

STATLER, SUPRA; CRAWFORD VS. STATE, SUPRA. 

     "IT SHOULD BE NOTED THAT THE EVIDENCE CONCERNING THE ISSUE OF

  VOLUNTARINESS WAS GREATLY CONFLICTING AND WAS TO BE RESOLVED BY

  THE TRIAL COURT IN THE FIRST INSTANCE AND THE JURY IN THE SECOND

  HAVING REGARD TO THE CREDIBILITY OF THE WITNESS.  THIS ISSUE

  SHOULD NOW BE CONSIDERED CLOSED, AND THIS COURT FINDS IT TO BE

  SO." 

THIS JUDGMENT WAS AFFIRMED IN THE MISSOURI SUPREME COURT.  STATE V.
STIDHAM, 449 S.W.2D 634 (1970).  AGREEING FIRST THAT THE JUDGE AT
STIDHAM'S TRIAL HAD WITH SUFFICIENT CLARITY FOUND THE CONFESSION
VOLUNTARY AND ADMISSIBLE IN EVIDENCE, THE COURT THEN HELD THAT IN ANY
EVENT STIDHAM HAD BEEN GIVEN A NEW EVIDENTIARY HEARING AND HIS
CONFESSION AGAIN DETERMINED TO BE VOLUNTARY BY THE CIRCUIT COURT.  IN
ITS VIEW, THE CIRCUIT COURT HAD "FOUND, AS HAD THE PREVIOUS COURT, THAT
THE ORAL AND WRITTEN CONFESSIONS WERE VOLUNTARY . . . . "  BASED UPON
ITS OWN EXTENSIVE ANALYSIS OF THE RECORD, THE MISSOURI SUPREME COURT
ALSO CONCLUDED THAT THE FINDING OF VOLUNTARINESS WAS "OVERWHELMINGLY
SUPPORTED AND PROCEDURALLY AND FACTUALLY THE CAUSE MEETS ALL THE
REQUIREMENTS OF THE FEDERAL CASES AND THERE HAS BEEN NO INVASION OF DUE
PROCESS."  ID., AT 644. 

STIDHAM THEN RESORTED TO FEDERAL HABEAS CORPUS, PRESENTING SEVERAL
ISSUES INCLUDING THE CONFESSION MATTER.  THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF MISSOURI, AFTER HAVING EXAMINED THE
FULL RECORD OF THE STATE COURT PROCEEDINGS, DENIED THE PETITION WITHOUT
A HEARING BUT WITH AN OPINION HOLDING THAT THERE HAD BEEN NO VIOLATION
OF JACKSON V. DENNO BECAUSE THE STATE TRIAL JUDGE HAD SATISFACTORILY
FOUND THE CONFESSION VOLUNTARY PRIOR TO SUBMITTING IT TO THE JURY.  328
F.SUPP.  1291 (1970). 

THE COURT OF APPEALS REVERSED BY A DIVIDED VOTE.  443 F.2D 1327 (CA8
1971).  ITS UNDERSTANDING OF MISSOURI LAW AT THE TIME OF STIDHAM'S
TRIAL WAS THAT THE TRIAL JUDGE WAS NOT REQUIRED TO MAKE A FINDING ON
VOLUNTARINESS HIMSELF, BUT WAS PERMITTED TO SUBMIT THE ISSUE TO THE
JURY IN THE FIRST INSTANCE.  AS THE COURT OF APPEALS SAW IT, THIS IS
PRECISELY WHAT THE TRIAL COURT DID:  THE FINDING THAT THE CONFESSION
WAS NOT INVOLUNTARY AS A MATTER OF LAW WAS NOT AN INDEPENDENT
ASSESSMENT OF VOLUNTARINESS BUT MERELY A STATEMENT THAT THE ISSUE WAS
ONE FOR THE JURY.  BECAUSE IN ITS VIEW THERE HAD NEVER BEEN A RELIABLE
JUDICIAL DETERMINATION OF THE FACTS AND OF THE ULTIMATE ISSUE OF
VOLUNTARINESS, EITHER AT TRIAL OR IN LATER PROCEEDINGS, THE COURT OF
APPEALS REVERSED THE JUDGMENT AND REMANDED THE CASE TO THE DISTRICT
COURT, IT BEING CONTEMPLATED THAT THE STATE WOULD BE ALLOWED
"REASONABLE TIME TO MAKE AN ERROR-FREE DETERMINATION ON THE
VOLUNTARINESS OF THE CONFESSION AT ISSUE . . . . "  SIGLER V. PARKER
396 U.S. 482, 484 (1970).  WE GRANTED CERTIORARI, 404 U.S. 1058
(1972). 

WE ARE FIRST ASKED TO HOLD THAT THE COURT OF APPEALS ERRED IN
CONCLUDING THAT STIDHAM'S TRIAL JUDGE FAILED TO COMPLY WITH THE
REQUIREMENT OF THE FOURTEENTH AMENDMENT AS CONSTRUED IN JACKSON V.
DENNO THAT THERE MUST BE A JUDICIAL FINDING OF VOLUNTARINESS BEFORE A
CHALLENGED CONFESSION IS SUBMITTED TO THE JURY.  PETITIONER'S POSITION
IS NOT WITHOUT FORCE, AND BEGINS WITH THE PROPOSITION THAT THE COURT OF
APPEALS WAS TOO MUCH INFLUENCED BY WHAT THE TRIAL JUDGE MIGHT HAVE DONE
UNDER THE MISSOURI LAW PREVAILING AT THE TIME AND TOO LITTLE BY WHAT HE
ACTUALLY DID.  EVEN IF THE CONTROLLING RULE PERMITTED SUBMISSION OF A
CHALLENGED CONFESSION TO THE JURY WITHOUT THE JUDGE'S OWN DETERMINATION
OF VOLUNTARINESS, THAT RULE, THE ARGUMENT GOES, DID NOT PREVENT HIM
FROM RESOLVING THE DISPUTED ISSUES OF FACT PRIOR TO ADMITTING THE
CONFESSION INTO EVIDENCE.  OBVIOUSLY, IT IS SAID, STIDHAM'S TRIAL JUDGE
TOOK THE LATTER COURSE, FOR (1) HE HELD A FULL EVIDENTIARY HEARING
OUTSIDE THE PRESENCE OF THE JURY, A WHOLLY UNNECESSARY AND TIME-WASTING
PROCEDURE IF HE WAS MERELY TO DETERMINE IF THERE WAS A DISPUTED ISSUE
AS TO VOLUNTARINESS THAT SHOULD BE SUBMITTED TO THE JURY AND (2) HAVING
HEARD THE EVIDENCE, HE DENIED THE MOTION TO SUPPRESS AND FOUND THE
CONFESSION NOT INVOLUNTARY AS A MATTER OF LAW, A CONCLUSION NECESSARILY
INDICATING THAT THE JUDGE RESOLVED THE DISPUTED ISSUES AGAINST STIDHAM,
FOR HAD HE BELIEVED HIM RATHER THAN THE POLICE, IT IS INCONCEIVABLE
THAT THE CONFESSION WOULD HAVE BEEN SUBMITTED TO THE JURY.  FINALLY, IT
IS URGED THAT THE MISSOURI COURTS AND THE FEDERAL DISTRICT COURT
CONSTRUED THE TRIAL JUDGE'S RULING AS EQUIVALENT TO AN AFFIRMATIVE
FINDING THAT THE CONFESSION WAS VOLUNTARY AND THAT THE COURT OF APPEALS
SHOULD HAVE ACCEPTED THIS INTERPRETATION OF THE PROCEEDINGS IN THE
LOWER COURTS. 

THE ISSUE, THEN, IS NOT FREE FROM DOUBT, BUT IT IS EVIDENT THAT WE
NEED NOT DECIDE IT IN THIS CASE, FOR THE COURT OF APPEALS ERRED IN
ANOTHER RESPECT THAT REQUIRES REVERSAL OF ITS JUDGMENT. 

EVEN IF THE TRIAL PROCEDURE WAS FLAWED WITH RESPECT TO THE
CHALLENGED CONFESSION, JACKSON V. DENNO DOES NOT ENTITLE STIDHAM TO A
NEW TRIAL IF THE STATE SUBSEQUENTLY PROVIDED HIM AN ERROR-FREE JUDICIAL
DETERMINATION OF THE VOLUNTARINESS OF HIS CONFESSION-- ERROR-FREE IN
THAT THE DETERMINATION WAS PROCEDURALLY ADEQUATE AND SUBSTANTIVELY
ACCEPTABLE UNDER THE DUE PROCESS CLAUSE.  JACKSON V. DENNO, 378 U.S.,
AT 393-396.  HERE, THE MISSOURI COURTS, IN CONNECTION WITH STIDHAM'S
SECOND MOTION TO VACATE HIS SENTENCE, UNQUESTIONABLY FURNISHED A
PROCEDURALLY ADEQUATE EVIDENTIARY HEARING, AND THE OUTCOME WAS ADVERSE
TO STIDHAM.  BUT IT IS SAID THAT THE ST. LOUIS CIRCUIT COURT CONSIDERED
ITSELF BOUND BY PRIOR PROCEEDINGS AND NEVER INDEPENDELTY DETERMINED
THAT STIDHAM'S CONFESSION WAS VOLUNTARILY GIVEN.  RELIANCE IS PLACED ON
JUDGE GODFREY'S STATEMENT THAT THE EVIDENCE WAS CONFLICTING, THAT THE
ISSUE WAS FOR THE TRIAL COURT AND JURY AND THAT "(THE) ISSUE SHOULD NOW
BE CONSIDERED CLOSED, AND THIS COURT FINDS IT TO BE SO." 

THIS CONTENTION IS IN THE TEETH OF THE MISSOURI SUPREME COURT'S
PRIOR ORDER REOPENING THE ENTIRE MATTER AND DIRECTING THE TRIAL JUDGE
TO HOLD A FULL EVIDENTIARY HEARING AND THEN "TO DECIDE ALL ISSUES OF
FACT AND QUESTIONS OF LAW . . . . "  415 S.W.2D,AT 298.  THE MISSOURI
SUPREME COURT LATER THOUGHT ITS MANDATE HAD BEEN COMPLIED WITH AND
EXPRESSLY READ THE CIRCUIT COURT AS HAVING "FOUND, AS HAD THE PREVIOUS
COURT, THAT THE ORAL AND WRITTEN CONFESSIONS WERE VOLUNTARY . . . ." 
449 S.W.2D,AT 644.  WHAT IS MORE, THE SUPREME COURT CAREFULLY REVIEWED
THE RECORD, NOTING THAT "THE TESTIMONY IN CONTRADICTION OF STIDHAM'S
UNCORROBORATED CLAIMS WAS ALL BUT OVERWHELMING," ID., AT 641, AND THAT
THE PATROL, POLICE AND PRISON OFFICERS-- "ALL THESE WITNESSES, ALL
PRODUCED BY THE STATE, CATEGORICALLY OR IMPLICITLY REFUTED ALL OF
STIDHAM'S CLAIMS OF MISTREATMENT, EITHER PHYSICAL OR MENTAL."  ID., AT
643-644.  THE COURT'S CONCLUSION WAS THAT THE FINDING OF VOLUNTARINESS
WAS "OVERWHELMINGLY SUPPORTED" AND THAT THERE HAD BEEN NO INVASION OF
DUE PROCESS.  ID., AT 644. 

WE ARE NOT INCLINED TO DISAGREE WITH THE MISSOURI SUPREME COURT'S
INTERPRETATION OF THE CIRCUIT COURT'S OPINION AND JUDGMENT.  WE ALSO
HOLD THAT AS BETWEEN THE TWO COURTS THE JACKSON V. DENNO ERROR, IF ANY,
WAS SUFFICIENTLY REMEDIED. 

THIS, OF COURSE, DOES NOT END THE MATTER.  A STATE PRISONER IS FREE
TO RESORT TO FEDERAL HABEAS CORPUS WITH THE CLAIM THAT, CONTRARY TO A
STATE COURT'S JUDGMENT, HIS CONFESSION WAS INVOLUNTARY AND INADMISSIBLE
AS A MATTER OF LAW.  THE COURT OF APPEALS DID NOT REACH THIS ISSUE.  WE
ARE ASKED TO DECIDE THE QUESTION HERE BUT IT IS NOT OUR FUNCTION TO
DEAL WITH THIS ISSUE IN THE FIRST INSTANCE. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT IS
REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

              SO ORDERED. 

KENNETH M. ROMINES, ASSISTANT ATTORNEY GENERAL OF MISSOURI, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WAS JOHN C. DANFORTH,
ATTORNEY GENERAL. 

MARK M. HENNELLY, BY APPOINTMENT OF THE COURT, 405 U.S. 913, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :





















TIDEWATER OIL CO. V. UNITED STATES, 409 U.S. 151 


       TIDEWATER OIL CO. V. UNITED STATES ET AL.

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 71-366.  ARGUED OCTOBER 11, 1972-- DECIDED DECEMBER 6,

           1972 


THE EXPEDITING ACT, PROVIDING THAT IN A CIVIL ANTITRUST ACTION
BROUGHT BY THE UNITED STATES IN A FEDERAL DISTRICT COURT AN APPEAL FROM
THAT COURT'S FINAL JUDGMENT WILL LIE ONLY TO THIS COURT, LODGED
EXCLUSIVE APPELLATE JURISDICTION OVER SUCH ACTIONS IN THIS COURT AND
THUS BARS THE COURTS OF APPEALS FROM ASSERTING JURISDICTION OVER
INTERLOCUTORY ORDERS COVERED BY 28 U.S.C. 1292(B), AS WELL AS OVER
OTHER INTERLOCUTORY ORDERS SPECIFIED IN SEC. 1292(A).  THE LEGISLATIVE
HISTORY OF THOSE PROVISIONS CONTAINS NO INDICATION OF A CONGRESSIONAL
INTENT TO IMPAIR THE ORIGINAL EXCLUSIVITY OF THIS COURT'S JURISDICTION
UNDER THE EXPEDITING ACT.  PP. 154-174. 

AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BRENNAN, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  WHITE,
J., FILED A CONCURRING STATEMENT, POST, P. 174.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 174.  STEWARD, J., FILED A DISSENTING
OPINION, WHICH REHNQUIST, J., JOINED, AND DOUGLAS, J., JOINED IN PART,
POST, P. 178. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

ON JULY 13, 1966, THE UNITED STATES FILED A CIVIL ANTITRUST SUIT
AGAINST PHILLIPS PETROLEUM CO. (PHILLIPS) AND PETITIONER TIDEWATER OIL
CO. (TIDEWATER).  THE COMPLAINT ALLEGED THAT PHILLIPS' ACQUISITION OF
CERTAIN ASSETS AND OPERATIONS OF TIDEWATER VIOLATED SEC. 7 OF THE
CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15 U.S.C. 18.  THE DISTRICT
COURT DENIED THE UNITED STATES' MOTION FOR A TEMPORARY RESTRAINING
ORDER TO PREVENT CONSUMMATION OF THE ACQUISITION, /1/  AND ITS
SUBSEQUENT MOTION FOR A PRELIMINARY INJUNCTION TO REQUIRE EITHER
RESCISSION OF THE ACQUISITION OR MAINTENANCE BY PHILLIPS OF THE GOING
CONCERN VALUE OF THE TRANSFERRED ASSETS AND OPERATIONS. 

PETITIONER CONTINUED AS A PARTY TO THE SUIT DURING SOME FIVE YEARS
OF PRETRIAL DISCOVERY AND PREPARATION.  /2/  THEN IN APRIL 1971,
FOLLOWING THE GOVERNMENT'S ANNOUNCEMENT THAT IT WAS READY FOR TRIAL,
PETITIONER MOVED TO BE DISMISSED AS A PARTY.  /3/  THE DISTRICT COURT
DENIED THE MOTION, BUT FOUND THAT IT INVOLVED "A CONTROLLING QUESTION
OF LAW AS TO WHICH THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OF
OPINION AND THAT AN IMMEDIATE APPEAL FROM (THE) ORDER MAY MATERIALLY
ADVANCE THE ULTIMATE TERMINATION OF THIS LITIGATION."  IT THEREFORE
CERTIFIED "ITS ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR
INTERLOCUTORY APPEAL UNDER SECTION 1292(B) OF TITLE 28 OF THE UNITED
STATES CODE."  AS REQUIRED BY THE STATUTE, TIDEWATER THEN APPLIED TO
THE COURT OF APPEALS FOR THE NINTH CIRCUIT FOR LEAVE TO PROSECUTE THE
APPEAL.  THAT COURT, HOWEVER, DENIED THE APPLICATION RELYING SOLELY ON
ITS PREVIOUS DECISION IN UNITED STATES V. FMC CORP., 321 F.2D 534
(1963).  THERE AN ATTEMPT WAS MADE TO APPEAL AN INTERLOCUTORY ORDER
DENYING A PRELIMINARY INJUNCTION IN A GOVERNMENT CIVIL ANTITRUST CASE. 
NOTWITHSTANDING THAT 28 U.S.C. 1292(A)(1) PROVIDES FOR AN APPEAL OF
RIGHT TO THE COURTS OF APPEALS FROM AN ORDER GRANTING OR DENYING
PRELIMINARY INJUNCTIONS, THE NINTH CIRCUIT HELD THAT IT LACKED
JURISDICTION OVER SUCH AN APPEAL IN A GOVERNMENT CIVIL ANTITRUST CASE
BECAUSE OF SEC. 2 OF THE EXPEDITING ACT OF 1903, 32 STAT. 823, AS
AMENDED, 15 U.S.C. 29, WHICH PROVIDES THAT "(IN EVERY CIVIL ACTION
BROUGHT IN ANY DISTRICT COURT OF THE UNITED STATES UNDER ANY OF (THE
ANTITRUST) ACTS, WHEREIN THE UNITED STATES IS COMPLAINANT, AN APPEAL
FROM THE FINAL JUDGMENT OF THE DISTRICT COURT WILL LIE ONLY TO THE
SUPREME COURT."  IN THIS CASE, THEN, THE COURT OF APPEALS EXTENDED ITS
PRIOR RULING TO INTERLOCUTORY ORDERS WITHIN SEC. 1292(B).  BECAUSE THIS
DECISION RAISES AN IMPORTANT QUESTION OF FEDERAL APPELLATE JURISDICTION
AND BECAUSE A CONFLICT AMONG THE CIRCUITS SUBSEQUENTLY DEVELOPED ON
THIS QUESTION, /4/  WE GRANTED CERTIORARI.  /5/  FOR THE REASONS THAT
FOLLOW, WE AFFIRM THE DECISION OF THE COURT OF APPEALS. 

        I 

TO DETERMINE THE RELEVANCE OF 28 U.S.C. 1292(B) FOR GOVERNMENT CIVIL
ANTITRUST CASES, IT IS NECESSARY FIRST TO CONSIDER THE ORIGINAL PURPOSE
OF SEC. 2 OF THE EXPEDITING ACT AND THE OVER HALF-CENTURY OF EXPERIENCE
WITH THAT SECTION IN THE CONTEXT OF INTERLOCUTORY APPEALS PROVISIONS
THAT PRECEDED THE ENACTMENT OF SEC. 1292(B) IN 1958.  /6/ 

IN AN EFFORT TO "EXPEDITE (CERTAIN) LITIGATION OF GREAT AND GENERAL
IMPORTANCE," 36 CONG.REC.  1679 (REMARKS OF SEN. FAIRBANKS), /7/
CONGRESS ENACTED SEC. 2 OF THE EXPEDITING ACT IN 1903 /8/  TO WITHDRAW
ALL INTERMEDIATE APPELLATE JURISDICTION IN GOVERNMENT CIVIL ANTITRUST
CASES.  AT THE TIME OF THE PASSAGE OF THE EXPEDITING ACT, THE THEN
RECENTLY ESTABLISHED CIRCUIT COURTS OF APPEALS /9/  HAD JURISDICTION
UNDER THE EVARTS ACT OVER AN APPEAL NOT ONLY FROM A "FINAL DECISION"
BUT ALSO FROM "AN INTERLOCUTORY ORDER OR DECREE" GRANTING OR CONTINUING
AN INJUNCTION OR APPOINTING A RECEIVER "IN A CAUSE IN WHICH AN APPEAL
FROM A FINAL DECREE MAY BE TAKEN . . . TO THE CIRCUIT COURT OF
APPEALS."  /11/  HENCE, BY LODGING EXCLUSIVE APPELLATE JURISDICTION
OVER THE "FINAL JUDGMENT OF THE DISTRICT COURT" IN THIS COURT, THE
EXPEDITING ACT NECESSARILY ELIMINATED COURT OF APPEALS JURISDICTION
OVER APPEALS FROM INTERLOCUTORY, AS WELL AS FINAL, DECREES IN
GOVERNMENT CIVIL ANTITRUST CASES. 

CONGRESS THUS INITIALLY DETERMINED TO SPEED APPELLATE REVIEW BY
CHANNELING APPEALS IN EXPEDITING ACT CASES DIRECTLY TO THIS COURT AND
TO AVOID THE DELAY INHERENT IN PIECEMEAL APPEAL BY CONDITIONING APPEAL
UPON THE PRESENCE OF A "FINAL JUDGMENT."  /12/  BUT MERE SPEED IN THE
DISPOSITION OF GOVERNMENT CIVIL ANTITRUST CASES WAS NOT CONGRESS' ONLY
CONCERN; THAT RESULT MIGHT HAVE BEEN ACHIEVED SIMPLY BY ESTABLISHING
PROCEDURES FOR THE EXPEDITIOUS HANDLING OF SUCH CASES IN THE COURTS OF
APPEALS.  CONGRESS WAS ALSO INTENT UPON FACILITATING REVIEW BY THIS
COURT "OF A CLASS OF ANTITRUST CASES DEEMED PARTICULARLY IMPORTANT." 
/13/  BECAUSE OF THE IMPORTANCE OF UNIFORM INTERPRETATION OF THE
ANTITRUST LAW, /14/  WHICH WAS STILL IN ITS INFANCY IN 1903, IT IS
UNDERSTANDABLE THAT CONGRESS CHOSE TO ESTABLISH THIS SPECIAL APPELLATE
PROCEDURE FOR GOVERNMENT CIVIL ANTITRUST CASES, WHICH WERE THOUGHT
GENERALLY TO INVOLVE ISSUES OF WIDE IMPORTANCE.  /15/ 

DURING THE 25 YEARS FOLLOWING THE ENACTMENT OF THE EXPEDITING ACT,
CONGRESS AMENDED THE EVARTS ACT PROVISION GOVERNING INTERLOCUTORY
APPEALS TO THE COURTS OF APPEALS ON FOUR SEPARATE OCCASIONS-- IN 1906,
/16/ 1911, /17/  1925, /18/  AND 1928.  /19/  IT CAN BE ARGUED THAT ON
ITS FACE THE VERY FIRST OF THESE AMENDMENTS ONCE AGAIN MADE
INTERLOCUTORY APPEALS AVAILABLE TO THE COURTS OF APPEALS IN GOVERNMENT
CIVIL ANTITRUST CASES AND THAT THE LANGUAGE OF EACH SUCCESSIVE
AMENDMENT, WHERE RELEVANT, PERPETUATED THAT STATE OF AFFAIRS.  /20/
BUT, WHILE THE CLEAR MEANING OF STATUTORY LANGUAGE IS NOT TO BE
IGNORED, "WORDS ARE INEXACT TOOLS AT BEST," HARRISON V. NORTHERN TRUST
CO., 317 U.S. 476, 479 (1943), AND HENCE IT IS ESSENTIAL THAT WE PLACE
THE WORDS OF A STATUTE IN THEIR PROPER CONTEXT BY RESORT TO THE
LEGISLATIVE HISTORY.  NOWHERE IS THIS BETTER ILLUSTRATED THAN IN THIS
CASE.  FOR WE FIND IT INCONCEIVABLE THAT CONGRESS, HAVING PURPOSEFULLY
WITHDRAWN THE JURISDICTION OF THE COURTS OF APPEALS IN CERTAIN
ANTITRUST CASES IN 1903, WOULD RE-ESTABLISH IT IN THE SAME CASES-- BUT
ONLY FOR INTERLOCUTORY ORDERS-- JUST THREE YEARS LATER IN 1906, WITHOUT
MAKING ANY REFERENCE TO THAT PURPOSE.  YET NO MENTION OF EITHER THE
EXPEDITING ACT OR GOVERNMENT CIVIL ANTITRUST CASES IS TO BE FOUND IN
THE LEGISLATIVE HISTORY OF THE 1906 AMENDMENT TO THE INTERLOCUTORY
APPEALS PROVISION /21/  -- OR, FOR THAT MATTER, IN THAT OF THE
SUCCESSIVE AMENDMENTS INSOFAR AS THEY ARE RELEVANT; /22/  RATHER, FOR
EACH AMENDMENT SOME PURPOSE WHOLLY UNRELATED TO EXPEDITING ACT CASES IS
APPARENT FROM THE RELEVANT LEGISLATIVE MATERIALS.  /23/  IN LIGHT OF
THIS, WE FIND IT IMPOSSIBLE TO ASCRIBE TO CONGRESS AN INTENT TO IMPAIR
THE ORIGINAL EXCULSIVITY OF THIS COURT'S JURISDICTION UNDER SEC. 2
THROUGH ANY OF THESE AMENDMENTS TO THE INTERLOCUTORY APPEALS
PROVISION. 

THIS CLEARLY WAS THE VIEW OF THE SEVEN MEMBERS OF THE UNANIMOUS
COURT IN UNITED STATES V. CALIFORNIA COOPERATIVE CANNERIES, 279 U.S.
553 (1929).  THERE, IN REJECTING THE ARGUMENT THAT AN APPEAL LAY TO THE
COURT OF APPEALS FROM AN ORDER DENYING A MOTION TO INTERVENE IN A
GOVERNMENT CIVIL ANTITRUST CASE, THE COURT STATED:  /24/ 

"(THE EVARTS ACT) PROVISIONS GOVERNING APPEALS IN GENERAL WERE
AMENDED BY THE EXPEDITING ACT SO THAT IN SUITS IN EQUITY UNDER THE ANTI
TRUST ACT 'IN WHICH THE UNITED STATES IS COMPLAINANT,'  THE APPEAL
SHOULD BE DIRECT TO THIS COURT FROM THE FINAL DECREE IN THE TRIAL
COURT.  THUS, CONGRESS LIMITED THE RIGHT OF REVIEW TO AN APPEAL FROM
THE DECREE WHICH DISPOSED OF ALL MATTERS . . .; AND IT PRECLUDED THE
POSSIBILITY OF AN APPEAL TO EITHER (THIS COURT OR THE COURT OF APPEALS)
FROM AN INTERLOCUTORY DECREE."  ID., AT 558.  AND A DECADE AND A HALF
LATER, IN ALLEN CALCULATORS V. NATIONAL CASH REGISTER CO., 322 U.S.
137, 142 (1944), THE COURT REITERATED "THAT JURISDICTION TO REVIEW
DISTRICT COURT DECREES WAS NOT VESTED IN THE CIRCUIT COURTS OF APPEALS
BUT SOLELY IN THIS COURT, AND (THE EXPEDITING ACT) LIMITED THE RIGHT OF
APPEAL TO FINAL DECREES."  IT IS TRUE THAT INTERLOCUTORY ORDERS IN
GOVERNMENT CIVIL ANTITRUST CASES WERE SUBSEQUENTLY HELD REVIEWABLE BY
WAY OF EXTRAORDINARY WRITS UNDER THE ALL WRITS ACT, 28 U.S.C. 1651(A),
BUT APPLICATION FOR THE EXTRAORDINARY WRIT MUST BE MADE TO THIS COURT
WHERE "SOLE APPELLATE JURSIDCTION LIES"  IN SUCH CASES.  UNITED STATES
ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S. 196, 201-203 (1945); DE
BEERS CONSOLIDATED MINES V. UNITED STATES, 325 U.S. 212, 217 (1945). 
/25/ 

THE WORDING OF THE INTERLOCUTORY APPEALS PROVISION WAS AGAIN ALTERED
IN THE 1948 REVISION OF THE JUDICIAL CODE.  /26/  THE RESULT-- AFTER
CERTAIN SUBSEQUENT MINOR CHANGES NOT HERE RELEVANT /27/  -- WAS THE
PRESENT 28 U.S.C. 1292(A)(1), WHICH ALLOWS "(INTERLOCUTORY ORDERS OF
THE DISTRICT COURTS . . . GRANTING, CONTINUING, MODIFYING, REFUSING OR
DISSOLVING INJUNCTIONS . . . "  /28/  TO BE APPEALED TO THE COURTS OF
APPEALS "EXCEPT WHERE A DIRECT REVIEW MAY BE HAD IN THE SUPREME
COURT."  THIS FINAL CLAUSE IS SUSCEPTIBLE OF TWO PLAUSIBLE
CONSTRUCTIONS THAT YIELD OPPOSITE RESULTS IN CASES SUBJECT TO THE
EXPEDITING ACT.  A DIRECT REVIEW OF INTERLOCUTORY ORDERS IN GOVERNMENT
CIVIL ANTITRUST CASES CLEARLY MAY BE HAD IN THIS COURT, THUS BARRING
RESORT TO SEC. 1292(A)(1)-- OR SO IT WOULD SEEM.  BUT DIRECT REIVEW MAY
NOT BE HAD WHEN THE INTERLOCUTORY ORDER IS ENTERED SINCE THERE IS NO
"FINAL JUDGMENT," THE PREDICATE OF AN APPEAL UNDER THE EXPEDITING ACT. 
THEREFORE, WERE THE FINAL CLAUSE CONSTRUED AS DIRECTED ONLY AT THE
PRESENT AVAILABILITY OF REVIEW IN THIS COURT, IT WOULD NOT, ON ITS
FACE, BAR AN INTERLOCUTORY APPEAL.  HOWEVER, THE FUNCTION OF THE
REVISERS OF THE 1948 CODE WAS GENERALLY LIMITED TO THAT OF
CONSOLIDATION AND CODIFICATION.  /29/  CONSEQUENTLY, A WELL-ESTABLISHED
PRINCIPLE GOVERNING THE INTERPRETATION OF PROVISIONS ALTERED IN THE
1948 REVISION IS THAT "NO CHANGE IS TO BE PRESUMED UNLESS CLEARLY
EXPRESSED."  FOURCO GLASS CO. V. TRANSMIRRA PRODUCTS CORP., 353 U.S.
222, 228 (1957).  WE FIND NO SUCH CLEAR EXPRESSION HERE.  TO THE
CONTRARY, THE REVISERS' NOTES FAIL TO REVEAL ANY INTENTION TO EXPAND
THE SCOPE OF THE PRE-EXISTING JURISDICTION OF THE COURTS OF APPEALS
OVER INTERLOCUTORY APPEALS; THE NEW SEC. 1292 IS DESCRIBED MERELY AS A
CONSOLIDATION OF A NUMBER OF PREVIOUSLY SEPARATE CODE PROVISIONS--
INCLUDING THE GENERAL INTERLOCUTORY APPEALS PROVISION-- "WITH NECESSARY
CHANGES IN PHRASEOLOGY TO EFFECT THE CONSOLIDATION."  /30/ 

IN SUM, THEN, OUR EXAMINATION OF THE HISTORY AND EVOLUTION OF THE
PRESENT SEC. 1292(A)(1)-- THE DIRECT DESCENDANT OF THE ORIGINAL
INTERLOCUTORY APPEALS PROVISION CONTAINED IN THE EVARTS ACT-- HAS
CONVINCED US THAT AT LEAST UP TO THE PASSAGE OF SEC. 1292(B) IN 1958,
CONGRESS HAD NOT IMPAIRED THE ORIGINAL EXCLUSIVITY OF THIS COURT'S
JURISDICTION UNDER SEC. 2 OF THE EXPEDITING ACT.  AS IS USUALLY TRUE OF
QUESTIONS OF STATUTORY CONSTRUCTION, THE ISSUE IS NOT TOTALLY FREE FROM
DOUBT.  /31/  YET, IN THE LAST ANALYSIS, WHATEVER AMBIGUITY MAY EXIST
IN THE LENGTHY HISTORY OF THE ORIGINAL INTERLOCUTORY APPEALS PROVISION
RELATIVE TO THE EXPEDITING ACT, IT RESULTS PRIMARILY FROM THE ABSENCE
OF ANY CONSIDERATION OF GOVERNMENT CIVIL ANTITRUST CASES IN THAT
HISTORY AND THUS EMPHASIZES THE EXTENT TO WHICH APPELLATE JURISDICTION
IN SUCH CASES HAS LONG BEEN VIEWED AS A PECULIARLY DISTINCT MATTER. 
CF. UNITED STATES ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S.,AT 202
203.  CERTAINLY, THIS CONCLUSION FINDS SUBSTANTIAL SUPPORT IN OUR PRIOR
DECISIONS IN WHICH WE HAVE CONSISTENTLY INTERPRETED OUR APPELLATE
JURISDICTION UNDER SEC. 2 AS EXCLUSIVE.  /32/

        II 

WITH THIS BACKGROUND, THE QUESTION BECOMES WHAT EFFECT, IF ANY, THE
ENACTMENT OF SEC. 1292(B) IN 1958 HAD UPON THIS COURT'S THERETOFORE
EXCLUSIVE APPELLATE JURISDICTION IN GOVERNMENT CIVIL ANTITRUST CASES. 

     "WHEN A DISTRICT JUDGE, IN MAKING IN A CIVIL ACTION AN ORDER

  NOT OTHERWISE APPEALABLE UNDER THIS SECTION, SHALL BE OF THE

  OPINION THAT SUCH ORDER INVOLVES A CONTROLLING QUESTION OF LAW AS

  TO WHICH THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION

  AND THAT AN IMMEDIATE APPEAL FROM THE ORDER MAY MATERIALLY

  ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION, HE SHALL SO

  STATE IN WRITING IN SUCH ORDER.  THE COURT OF APPEALS MAY

  THEREUPON, IN ITS DISCRETION, PERMIT AN APPEAL TO BE TAKEN FROM

  SUCH ORDER, IF APPLICATION IS MADE TO IT WITHIN TEN DAYS AFTER

  THE ENTRY OF THE ORDER . . . " 

AT THE OUTSET PETITIONER CONTENDS THAT THERE IS SIMPLY NO CONFLICT
BETWEEN THIS PROVISION AND SEC. 2 OF THE EXPEDITING ACT.  IT SUGGESTS
THAT "CIVIL ACTION" MUST BE READ AS AN ALL-INCLUSIVE PHRASE THAT
COVERS, INTER ALIA, GOVERNMENT CIVIL ANTITRUST CASES.  AT THE SAME
TIME, IT POINTS OUT THAT SEC. 1292(B) IS CONCERNED ONLY WITH
INTERLOCUTORY ORDERS, WHILE THE EXPEDITING ACT DEALS ONLY WITH FINAL
JUDGMENTS.  THUS, PETITIONER CONCLUDES THAT THE ENACTMENT OF SEC.
1292(B) MADE DISCRETIONARY INTERLOCUTORY APPEALS AVAILABLE WHERE NONE
HAD PREVIOUSLY EXISTED, AND THAT THE TWO STATUTES ARE IN COMPLETE
HARMONY WITH ONE ANOTHER.     SUCH A FACILE ARGUMENT COULD ALSO BE MADE
TO SUPPORT THE CONTENTION THAT SEC. 1292(A)(1) CAN BE INVOKED IN
EXPEDITING ACT CASES-- WERE IT NOT FOR THE FACT THAT, AS WE HAVE
ALREADY SEEN, SEC. 2 DOES NOT MERELY APPLY SOLELY TO A "FINAL JUDGMENT"
BUT ALSO LIMITS THE RIGHT OF APPEAL TO A "FINAL JUDGMENT."  LIKEWISE,
WE CAN HARDLY ACCEPT PETITIONER'S SUGGESTION THAT WHEN CONGRESS ENACTED
SEC. 1292(B), IT WROTE UPON A CLEAN SLATE INSOFAR AS APPEALS FROM
INTERLOCUTORY ORDERS IN EXPEDITING ACT CASES ARE CONCERNED.  NOR DO WE
FIND IN SEC. 1292(B) THE "SHARP BREAK WITH THE TRADITIONAL POLICY" OF
LIMITED AVAILABILITY OF INTERLOCUTORY APPEAL SO APPARENT TO THE
DISSENT.  THE NEW PROVISION HARDLY CREATED A GENERAL RIGHT OF
INTERLOCUTORY APPEAL; RATHER, IT ONLY EXTENDED THE AVAILABILITY OF SUCH
APPEALS TO A LIMITED GROUP OF ORDERS-- NOT PREVIOUSLY COVERED BY SEC.
1292(A)-- THAT INVOLVE "A CONTROLLING QUESTION OF LAW" THE IMMEDIATE
APPEAL OF WHICH "MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE
LITIGATION."  /33/  IN SHORT, THE CONSISTENT CONSTRUCTION THAT HAD BEEN
ACCORDED SEC. 2 PRIOR TO THE ENACTMENT OF SEC. 1292(B) /34/  CANNOT
SIMPLY BE IGNORED IN DETERMINING THE IMPACT OF THAT SECTION ON
GOVERNMENT CIVIL ANTITRUST CASES, CF. UNIVERSAL INTERPRETIVE SHUTTLE
CORP. V. WASHINGTON METROPOLITAN AREA TRANSIT COMM'N, 393 U.S. 186, 191
194 (1968).  ACCEPTANCE OF PETITIONER'S CONTENTION WOULD REQUIRE US TO
CONCLUDE THAT SEC. 1292(B) WAS INTENDED TO REVISE THE POLICIES
UNDERLYING THE EXPEDITING ACT FOR THE FIRST TIME-- THAT IT WAS INTENDED
AS THE FIRST DEPARTURE FROM THE PURPOSES OF AVOIDING PIECEMEAL APPEAL
AND OF LIMITING REVIEW OF IMPORTANT QUESTIONS OF ANTITRUST LAW TO THIS
COURT.  WE HAVE BEEN UNABLE TO DISCERN ANY SUCH INTENTION. 

THE LEGISLATIVE HISTORY ASSOCIATED WITH SEC. 1292(B) CONTAINS NO
MENTION OF CASES WITHIN THE EXPEDITING ACT.  /35/  REFERENCE, TO BE
SURE, WAS MADE TO ANTITRUST CASES, BUT IT IS CLEAR ON THE FACE OF THESE
STATEMENTS /36/  THAT THEY REFER ONLY TO PRIVATE TREBLE-DAMAGES
ACTIONS.  /37/  IN FACT, RATHER THAN INDICATING THAT SEC. 1292(B) WAS
INTENDED TO APPLY TO ANTITRUST CASES SUBJECT TO FINAL REVIEW IN THIS
COURT UNDER THE EXPEDITING ACT, THE LEGISLATIVE HISTORY STRONGLY
SUGGESTS AN ESSENTIALLY CONTRARY CONCLUSION:  THE SUBSECTION WAS
INTENDED TO APPLY ONLY TO INTERLOCUTORY ORDERS, "NOT OTHERWISE
APPEALABLE UNDER" SEC. 1292(A), IN CIVIL ACTIONS IN WHICH THE COURTS OF
APPEALS WOULD HAVE JURISDICTION OVER AN APPEAL FROM THE FINAL JUDGMENT
UNDER 28 U.S.C. 1291.  FOR INSTANCE, IN EXPLAINING THE PROPOSED
STATUTE, THE SENATE REPORT ON SEC. 1292(B) STATES:  /38/ 

"THE BILL RESULTS FROM A GROWING AWARENESS OF THE NEED FOR
EXPEDITION OF CASES PENDING BEFORE THE DISTRICT COURTS.  MANY CASES
WHICH ARE FILED IN THE FEDERAL DISTRICT COURTS REQUIRE THE DISTRICT
JUDGE TO ENTERTAIN MOTIONS AT AN EARLY STAGE IN THE PROCEEDINGS WHICH,
IF DETERMINED, AGAINST THE PLAINTIFF, RESULT IN A FINAL ORDER WHICH
WOULD THEN BE APPEALABLE TO THE CIRCUIT COURTS OF APPEALS OF THE UNITED
STATES.  HOWEVER, SUCH MOTIONS, IF DETERMINED IN THE PLAINTIFF'S FAVOR,
ARE INTERLOCUTORY SINCE THEY DO NOT END THE LITIGATION AND ARE NOT
THEREFORE, UNDER EXISTING PROVISIONS OF LAW, APPEALABLE."  THIS IS
HARDLY SUPPORTIVE OF PETITIONER'S POSITION, AND YET THROUGHOUT THE
LEGISLATIVE MATERIALS THE FOCUS SIMILARLY REMAINS ON INTERLOCUTORY
ORDERS IN CIVIL CASES THAT WOULD BE APPEALABLE TO THE COURTS OF APPEALS
UNPON FINAL JUDGMENT.  /39/ 

PETITIONER'S CASE IS FURTHER WEAKENED BY THE EXTRAORDINARY RESULT
THAT ACCEPTANCE OF ITS POSITION WOULD YIELD.  SECTION 1292(A) PROVIDES
FOR AN APPEAL AS A MATTER OF RIGHT FROM A NUMBER OF SPECIFIED TYPES OF
INTERLOCTORY ORDERS-- IN PARTICULAR, INTERLOCUTORY ORDERS GRANTING OR
DEYING INJUNCTIONS.  THOSE INTERLOCUTORY ORDERS NOT WITHIN SUBSECTION
(A), HOWEVER, WERE MADE APPEALABLE IN SEC. 1292(B), SUBJECT TO THE
JUDGMENT AND DISCRETION OF THE DISTRICT COURT AND THE COURT OF
APPEALS.  GREATER IMPORTANCE OBVIOUSLY WAS ATTACHED TO THOSE TYPES OF
INTERLOCUTORY ORDERS SPECIFIED IN SUBSECTION (A) THAN TO THOSE COVERED
BY (B).  /40 NEVERTHELESS, PETITIONER WOULD HAVE US CONCLUDE THAT
CONGRESS INTENDED TO ESTABLISH COURT OF APPEALS JURISDICTION FOR ALL
INTERLOCUTORY ORDERS IN EXPEDITING ACT CASES, EXCEPT THOSE ORDERS FOR
WHICH AN APPEAL OF RIGHT IS PROVIDED IN SEC. 1292(A)(1).  /41/  AS THE
GOVERNMENT NOTES, SUCH A RESULT WOULD EFFECTIVELY TURN SEC. 1292 ON ITS
HEAD.  /42/  CONSISTENT WITH THE EVIDENT THRUST OF THE STATUTE'S
LEGISLATIVE HISTORY, THE MUCH MORE SENSIBLE CONCLUSION IS THAT SEC.
1292(B) WAS INTENDED TO ESTABLISH JURISDICTION IN THE COURTS OF APPEALS
TO REVIEW INTERLOCUTORY ORDERS, OTHER THAN THOSE SPECIFIED IN SEC.
1292(A), IN CIVIL CASES IN WHICH THEY WOULD HAVE JURISDICTION WERE THE
JUDGMENTS FINAL.  /43/ 

AT THE FOUNDATION OF THE PETITIONER'S POSITION IN THIS CASE IS THE
CONTENTION THAT SEC. 1292(B) IS THE PANACEA FOR THE SPECIAL BURDENS
IMPOSED ON THIS COURT BY SEC. 2 OF THE EXPEDITING ACT.  BOTH THE COURT
AND VARIOUS INDIVIDUAL MEMBERS HAVE ON OCCASION COMMENTED THAT
"(WHATEVER MAY HAVE BEEN THE WISDOM OF THE EXPEDITING ACT IN PROVIDING
DIRECT APPEALS IN ANTITRUST CASES AT THE TIME OF ITS ENACTMENT IN 1903,
TIME HAS PROVEN IT UNSATISFACTORY," FOR "(DIRECT APPEALS NOT ONLY PLACE
A GREAT BURDEN ON THE COURT BUT ALSO DEPRIVE US OF THE VALUABLE
ASSISTANCE OF THE COURTS OF APPEALS."  UNITED STATES V. SINGER MFG.
CO., 374 U.S. 174, 175 N. 1 (1963); SEE FORD MOTOR CO. V. UNITED
STATES, 405 U.S. 562, 595 N. 5 (1972) (BURGER, C. J., CONCURRING IN
PART AND DISSENTING IN PART); UNITED STATES V. BORDEN CO., 370 U.S.
460, 477N.  (1962) (HARLAN, J., DISSENTING); BROWN SHOE CO. V. UNITED
STATES, 370 U.S. 294, 355 (1962) (CLARK, J., CONCURRING); ID., AT 364
365 (HARLAN, J., DISSENTING IN PART AND CONCURRING IN PART).  FURTHER,
IN LIGHT OF THE PRESENT SIZE OF OUR DOCKET, DIRECT REIVEW "SELDOM
RESULTS IN MUCH EXPEDITION" SINCE WE NORMALLY MUST EXAMINE THE ENTIRE
RECORD AND RESOLVE ALL QUESTIONS HOWEVER UNSUBSTANTIAL.  ID., AT 355
(CLARK, J., CONCURRING); SEE ID., AT 364 (HARLAN, J., DISSENTING IN
PART AND CONCURRING IN PART); UNITED STATES V. BORDEN CO., SUPRA, AT
477N.  (HARLAN, J., DISSENTING).  OUR ACTION TODAY SHOULD NOT BE
CONSTRUED AS A RETREAT FROM THESE PREVIOUS REMARKS.  ON THE CONTRARY,
WE REMAIN CONVINCED THAT UNDER PRESENT CIRCUMSTANCES THE EXPEDITING ACT
FAILS TO HASTEN SUBSTANTIALLY THE FINAL DISPOSITION OF IMPORTANT
ANTITRUST ACTIONS WHILE IT UNJUSTIFIABLE BURDENS THIS COURT WITH
INADEQUATELY SIFTED RECORDS AND WITH CASES THAT COULD BE DISPOSED OF BY
REVIEW IN THE COURTS OF APPEALS.  UNIFORMITY IN THE INTERPRETATION AND
ADMINISTRATION OF THE ANTITRUST LAWS CONTINUES TO BE AN IMPORTANT
CONSIDERATION.  BUT SUCH UNIFORMITY COULD BE ADEQUATELY ENSURED BY THE
AVAILABILITY OF REVIEW IN THIS COURT ON CERTIORARI OF CASES INVOLVING
ISSUES OF GENERAL IMPORTANCE-- TOGETHER WITH THE "(LIMITED EXPEDITING
OF SUCH CASES, UNDER THE DISCRETION OF THIS COURT," FORD MOTOR CO. V.
UNITED STATES, SUPRA, AT 595 N. 5 (BURGER, C. J., CONCURRING IN PART
AND DISSENTING IN PART), WHERE TIME IS A FACTOR.  THE SIMPLE FACT IS
THAT "(THE LEGAL ISSUES IN MOST (GOVERMENT) CIVIL ANTITRUST CASES ARE
NO LONGER SO NOVEL OR UNSETTLED AS TO MAKE THEM ESPECIALLY APPROPRIATE
FOR INITIAL APPELLATE CONSIDERATION BY THIS COURT, AS COMPARED WITH
THOSE IN A VARIETY OF OTHER AREAS OF FEDERAL LAW," BROWN SHOE CO. V.
UNITED STATES, SUPRA, AT 364 (HARLAN, J., DISSENTING IN PART AND
CONCURRING IN PART).  YET, DESPITE ALL OF THESE CRITICISMS, OUR
PERSONAL VIEWS AS TO THE WISDOM OF SEC. 2 ARE, OF COURSE, NO BASIS FOR
DISREGARDING WHAT WE ARE BOUND TO RECOGNIZE AS THE PLAIN AND UNALTERED
INTENT OF CONGRESS TO REQUIRE THAT APPEALS IN GOVERNMENT CIVIL
ANTITRUST CASES BE TAKEN ONLY FROM FINAL JUDGMENTS AND ONLY TO THIS
COURT. 

IN ANY EVENT, PETITIONER HAS FAILED TO CONVINCE US THAT PERMITTING
APPEALS UNDER SEC. 1292(B) WOULD PROVIDE A MEANINGFUL SOLUTION-- IF ANY
SOLUTION AT ALL-- TO THE VARIOUS PROBLEMS CREATED FOR THE COURT BY THE
EXPEDITING ACT.  IN THE FIRST PLACE, THE AVAILABILITY OF INTERLOCUTORY
APPEALS UNDER SEC. 1292(B) WOULD NOT REDUCE THE NUMBER OF GOVERNMENT
CIVIL ANTITRUST CASES THAT COULD BE BROUGHT TO THIS COURT ON DIRECT
APPEAL UPON THE ENTRANCE OF A FINAL JUDGMENT.  NOR WOULD IT REDUCE THE
NUMBER OF ISSUES SUBJECT TO REVIEW BY THIS COURT; ANY ISSUE DETERMINED
ON INTERLOCUTORY APPEAL WOULD NORMALLY BE OPEN TO CONSIDERATION ON
FINAL APPEAL, /44/  AND DOUBTLESS SOME PARTY WOULD RAISE AN ISSUE
APPEALED UNDER SEC. 1292(B) SINCE IT MUST HAVE INVOLVED "A CONTROLLING
QUESTION OF LAW."  ALSO, THERE WOULD BE THE ADDED PROBLEM OF
APPLICATIONS FOR CERTIORARI FOLLOWING A CERTIFIED APPEAL IN EXPEDITING
ACT CASES.  BY DEFINITION, THE ISSUE WILL BE A SUBSTANTIAL ONE AND,
WHERE THE APPELLATE DECISION IS QUESTIONABLE, IT WOULD BE NECESSARY TO
DECIDE WHETHER TO GRANT CERTIORARI, WHICH MIGHT REQUIRE THE COURT TO
CONSIDER A PARTICULAR CASE, ON TWO SEPARATE OCCASIONS, /45/  OR TO DENY
CERTIORARI, WHICH MIGHT MEAN ALLOWING THE DISTRICT COURT TO PROCEED TO
FINAL JUDGMENT ON AN ERRONEOUS BASIS.  GIVEN THE POTENTIAL WASTE OF
LIMITED JUDICIAL RESOURCES-- THOSE EITHER OF THIS COURT OR OF THE
DISTRICT COURT-- ASSOCIATED WITH EACH CHOICE, NEITHER CAN BE CONSIDERED
ATTRACTIVE.  FINALLY, IN EMPHASIZING THE VALUE OF THE SCREENING
FUNCTION THAT COURT OF APPEALS REVIEW WOULD PROVIDE IN EXPEDITING ACT
CASES, WE HAVE CONSISTENTLY FOCUSED UPON THE LENGTHY RECORDS AND
COMPLEX FACTUAL ISSUES COMMON TO SUCH CASES.  YET, AS IS ILLUSTRATED BY
THIS VERY CASE, IN WHICH THE CERTIFIED QUESTION RELATES TO A MOTION TO
DISMISS A PARTY, QUESTIONS THAT WOULD BE PRESENTED TO THE COURTS OF
APPEALS UNDER SEC. 1292(B) WOULD OFTEN INVOLVE THRESHOLD PROCEDURAL
ISSUES NOT REQUIRING EXTENSIVE ANALYSIS OF THE RECORD.  /46/  WITH
RESPECT TO SUCH ISSUES THE SCREENING FUNCTION PERFORMED BY INTERMEDIATE
APPELLATE REVIEW IS OF FAR LESS SIGNIFICANCE THAN IT WOULD BE WITH
RESPECT TO QUESTIONS OF, SAY, RELEVANT MARKET, COMPETITION, OR
AGREEMENT.  BUT THESE LATTER QUESTIONS CAN BE PROPERLY DECIDED ONLY
AFTER FULL DEVELOPMENT OF THE EVIDENCE, AND IT IS THEREFORE DOUBTFUL AT
BEST THAT INTERLOCUTORY APPEALS WOULD AID THIS COURT IN DEALING WITH
THEM ON FINAL REVIEW.  /47/ 

NOR ARE WE EVEN CERTAIN THAT THE EXPEDITIOUS TERMINATION OF
LITIGATION IN THE DISTRICT COURTS-- THE EXPRESS PURPOSE OF SEC. 1292(B)
/48/  -- WOULD BE MATERIALLY ADVANCED IN THE CONTEXT OF GOVERNMENT
CIVIL ANTITRUST CASES BY ACCEPTANCE OF PETITIONER'S CONTENTION. 
PERMITTING INTERLOCUTORY APPEALS UNDER SEC. 1292(B) IN EXPEDITING ACT
CASES WOULD RESULT IN AN ANOMALOUS SITUATION:  THE COURT OF APPEALS
WOULD HAVE JURISDICTION OVER CERTAIN INTERLOCUTORY ORDERS BUT NOT OVER
THE FINAL JUDGMENT, WHICH WOULD BE APPEALABLE ONLY TO THIS COURT.  AN
INTERLOCUTORY APPEAL TAKEN UNDER SEC. 1292(B) MUST, OF COURSE, INVOLVE
"A CONTROLLING QUESTION OF LAW" THE IMMEDIATE APPEAL OF WHICH "MAY
MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION."  IN THE
NORMAL CASE, THE DECISION OF SUCH A QUESTION ON INTERLOCUTORY APPEAL IS
FINAL SINCE THE SAME COURT REVIEWS THE FINAL JUDGMENT, AND THE
LIKELIHOOD OF REVIEW IN THIS COURT ON CERTIORARI IS VERY SMALL.  HERE,
HOWEVER, THE DECISION OF THE COURT OF APPEALS ON THE INTERLOCUTORY
ORDER WOULD ESSENTIALLY BE ONLY AN ADVISORY OPINION TO THE DISTRICT
COURT SINCE THE ISSUE WOULD USUALLY BE OPEN TO RELITIGATION ON APPEAL
OF THE FINAL JUDGMENT TO THIS COURT.  /49/  THE NET RESULT WOULD BE
ADDED WORK FOR THE COURTS OF APPEALS, /50/  WITH NO ASSURANCE THAT
THERE WOULD ULTIMATELY BE A SAVING OF DISTRICT COURT TIME. 

  III 

HENCE, WE CONCLUDE THAT SEC. 1292(B) DID NOT ESTABLISH JURISDICTION
IN THE COURT OF APPEALS OVER INTERLOCUTORY ORDERS IN EXPEDITING ACT
CASES.  THE EXCLUSIVE NATURE OF THE JURISDICTION CREATED IN SEC. 2 OF
THE EXPEDITING ACT HAS CONSISTENTLY BEEN RECOGNIZED BY THIS COURT, AND
WE HOLD TODAY THAT THAT EXCLUSIVITY REMAINS UNIMPAIRED.  DESPITE OUR
INTEREST IN A RESTRUCTURING OF OUR JURISDICTION UNDER THE EXPEDITING
ACT, WE ARE NEITHER WILLING NOR ABLE TO ADOPT THE UNGAINLY HALF MEASURE
OFFERED BY THE PETITIONER IN THIS CASE. 

              AFFIRMED. 

/1/  TIDEWATER THEN TRANSFERRED TITLE TO ITS WESTERN MARKETING AND
MANUFACTURING DIVISION TO PHILLIPS. 

/2/  TIDEWATER MERGED WITH GETTY OIL CO. ON SEPTEMBER 30, 1967.  IT
HAS NEVER BEEN CONTENDED THAT THAT MERGER ALTERED TIDEWATER'S LEGAL
STATUS IN THIS CASE. 

/3/  IN ITS MOTION TO BE DISMISSED, TIDEWATER CONTENDED "THAT
CORPORATION AND NOT AGAINST THE SELLER, THAT THE SALE OF ASSETS BY
DEFENDANT TIDEWATER OIL COMPANY TO PHILLIPS PETROLEUM COMPANY HAS LONG
AGON BEEN CONSUMMATED, THAT NO RELIEF IS OBTAINABLE AGAINST TIDEWATER
OIL COMPANY, AND THAT ITS PRESENCE IN THE SUIT IS NO LONGER NECESSARY
OR APPROPRIATE." 

/4/  SUBSEQUENT TO THE DECISION BY THE NINTH CIRCUIT IN THIS CASE,
THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT HELD THAT SEC. 1292(B)
COULD BE USED TO TAKE AN INTERLOCUTORY APPEAL IN A GOVERNMENT CIVIL
ANTITRUST CASE.  SEE FISONS LTD. V. UNITED STATES, 458 F.2D 1241, 1244
1248, CERT. DENIED, 405 U.S. 1041 (1972).  THE ONLY OTHER COURT OF
APPEALS TO CONSIDER THE QUESTION, THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT, REACHED THE SAME RESULT AS THE NINTH CIRCUIT IN
THIS CASE.  SEE FARBENFABRIKEN BAYER, A. G. V. UNITED STATES, 1968 CCH
TRADE CAS. PARA. 72,570, CERT. DENIED, 393 U.S. 959 (1968); GLAXO
GROUP, LTD. V. UNITED STATES, MIS.  NO. 3261 (JUNE 25, 1968).     /5/
405 U.S. 986 (1972).  WE HAD ORIGINALLY DENIED CERTIORARI, 404 U.S. 941
(1971). 

/6/  ACT OF SEPT. 2, 1958, PUB. L. 85-919, 72 STAT. 1770. 

/7/  SEE ALSO SHENANDOAH VALLEY BROADCASTING V. ASCAP, 375 U.S. 39,
40 (1963), MODIFIED, 375 U.S. 994 (1964). 

JUDGE DISTRICT COURT BE CONVENED TO HEAR ANY GOVERNMENT CIVIL ANTITRUST
CASE THAT THE ATTORNEY GENERAL CERTIFIES TO BE OF "GENERAL PUBLIC
IMPORANCE."  SEE ALSO 49 U.S.C. 44.  THIS THREE-JUDGE COURT PROVISION
IS ALSO A REFLECTION OF THE "GREAT IMPORTANCE" ATTACHED TO GOVERNMENT
CIVIL ANTITRUST CASES AND WAS INTENDED TO PROVIDE A MECHANISM FOR FULL
CONSIDERATION OF SUCH CASES BY A PANEL OF JUDGES "BEFORE PRESENTATION
TO THE SUPREME COURT AS IF HEARD BY THE UNITED STATES CIRCUIT COURT OF
APPEALS."  H. R. REP. NO. 3020, 57TH CONG., 2D SESS., 2 (1903).  BUT
THIS PROVISION HAS BEEN SELDOM USED. 

/8/  ACT OF FEB. 11, 1903, SEC. 2, 32 STAT. 823, AS AMENDED, ACT OF
MARC.  3, 1911, SEC. 291, 36 STAT. 1167; ACT OF JUNE 9, 1944, C. 239,
58 STAT. 272; ACT OF JUNE 25, 1948, SEC. 17, 62 STAT. 989.  AS
ORIGINALLY ENACTED, THE STATUTE READ IN RELEVANT PART AS FOLLOWS: 

"THAT IN EVERY SUIT IN EQUITY PENDING OR HEREAFTER BROUGHT IN ANY
CIRCUIT COURT OF THE UNITED STATES UNDER ANY OF SAID ACTS, WHEREIN THE
UNITED STATES IS COMPLAINANT, . . . AN APPEAL FROM THE FINAL DECREE OF
THE CIRCUIT COURT WILL LIE ONLY TO THE SUPREME COURT AND MUST BE TAKEN
WITHIN SIXTY DAYS FROM THE ENTRY THEREOF . . . " THERE IS NO CONTENTION
HER THAT THE VERY MINOR CHANGES IN WORDING EFFECTED BY THE SUBSEQUENT
AMENDMENTS AND CODIFICATIONS OF THE STATUTE IN ANY WAY ALTERED THE
ORIGINAL MEANING OF THE ACT. 

/9/  ACT OF MAR. 3, 1891, SEC. 2, 26 STAT. 826. 

/10/  ACT OF MAR. 3, 1891, SEC. 6, 26 STAT. 828. 

/11/  ACT OF JUNE 6, 1900, C. 803, 31 STAT. 660, AMENDING ACT OF
MAR. 3, 1891, SEC. 7, 26 STAT. 828, AS AMENDED, ACT OF FEB. 18, 1895,
28 STAT. 666. 

/12/  IN UNITED STATES V. CALIFORNIA COOPERATIVE CANNERIES, 279 U.S.
553, 558 (1929), MR. JUSTICE BRANDEIS, SPEAKING FOR THE COURT, DETAILED
THE CAUSES OF DELAY THAT PROMPTED THE EXPEDITING ACT: 

"CONGRESS SOUGHT BY THE EXPEDITING ACT TO ENSURE SPEEDY DISPOSITION
OF SUITS IN EQUITY BROUGHT BY THE UNITED STATES UNDER THE ANTI-TRUST
ACT.  BEFORE THE PASSAGE OF THE EXPEDITING ACT THE OPPORTUNITIES FOR
DELAY WERE MANY.  FROM A FINAL DECREE IN THE TRIAL COURT UNDER THE ANTI
TRUST ACT AN APPEAL LAY TO THE CIRCUIT COURT OF APPEALS; AND SIX MONTHS
WERE ALLOWED FOR TAKING THE APPEAL.  FROM THE JUDGMENT OF THE COURT OF
APPEALS AN APPEAL LAY TO THIS COURT; AND ONE YEAR WAS ALLOWED FOR
TAKING THAT APPEAL.  ACT OF MARCH 3, 1891, C. 517, SECS. 6, 11, 26
STAT. 826, 828, 829.  SEE UNITED STATES V. E. C. KNIGHT CO., 60 FED.
306; 60 FED. 934; 156 U.S. 1; UNITED STATES V. TRANS-MISSOURI FREIGHT
ASSOCIATION, 53 FED. 440; 58 FED. 58; 166 U.S. 290.  MOREOVER, THERE
MIGHT BE AN APPEAL TO THE CIRCUIT COURT OF APPEALS FROM A DECREE
GRANTING OR DENYING AN INTERLOCUTORY INJUNCTION, ACT OF JUNE 6, 1900,
C. 803, 31 STAT. 660."  SEE ALSO UNITED STATES ALKALI EXPORT ASSN. V.
UNITED STATES, 325 U.S. 196, 203 (1945). 

/13/  UNITED STATES V. CITIES SERVICE CO., 410 F.2D 662, 664 (CA1
1969); SEE BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 364 (1962)
(HARLAN, J., DISSENTING IN PART AND CONCURRING IN PART); 36 CONG.REC. 
1679 (REMARKS OF SEN FAIRBANKS); CF. N. 7, SUPRA. 

/14/  ACT OF JULY 2, 1890, C. 647, 26 STAT. 209. 

/15/  IN SAYING THIS, WE ARE NOT TO BE UNDERSTOOD AS NECESSARILY
ACCEPTING TODAY AN IMPORTANT PREMISE THAT UNDERLIES SEC. 2-- NAMELY,
THAT THE COURTS OF APPEALS, SUBJECT TO REVIEW ON CERTIORARI IN THIS
COURT, ARE INCAPABLE OF PROVIDING THE UNIFORMITY OF INTERPRETATION
NECESSARY TO THE ADMINISTRATION OF THE ANTITRUST LAWS.  SEE INFRA, AT
170.  IN 1903, THE COURTS OF APPEALS HAD BEEN IN EXISTENCE FOR ONLY 12
YEARS AND VARIOUS RESERVATIONS ABOUT THEM HAD NOT YET BEEN DISPELLED. 
SEE F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT 258
(1927).  SINCE THAT TIME, WE HAVE HAD OVER A HALF-CENTURY OF EXPERIENCE
WITH THE COURTS OF APPEALS-- INCLUDING EXPERIENCE IN THE FIELD OF
PRIVATE ANTITRUST LITIGATION-- WHICH HAS RESOLVED ANY INITIAL DOUBTS. 
SEE IBID. 

/16/  ACT OF APR. 14, 1906, C. 1627, 34 STAT. 116. 

/17/  ACT OF MAR. 3, 1911, SEC. 129, 36 STAT. 1134. 

/18/  ACT OF FEB. 13, 1925, AMENDING SEC. 129, 43 STAT. 937. 

/19/  ACT OF APR. 11, 1928, C. 354, 45 STAT. 422. 

/20/  THE 1906 AMENDMENT REMOVED THE LIMITATION ON INTERLOCUTORY
APPEAL TO CAUSES "IN WHICH AN APPEAL FROM A FINAL DECREE MAY BE TAKEN .
. . TO THE CIRCUIT COURT OF APPEALS" AND PROVIDED SIMPLY THAT SUCH AN
APPEAL MAY BE TAKEN TO THE COURT OF APPEALS "IN ANY CAUSE."  ACT OF
APR. 14, 1906, C. 1627, 34 STAT. 116.  IN CODIFYING THE EVARTS ACT
INTERLOCUTORY APPEALS PROVISION IN 1911, "IN ANY CAUSE" WAS STRUCK, AND
THE PROVISION WAS AMENDED TO ALLOW THE COURTS OF APPEALS TO ENTERTAIN
APPEALS FROM INTERLOCUTORY ORDERS "NOTWITHSTANDING AN APPEAL IN SUCH
CASE MIGHT, UPON FINAL DECREE UNDER THE STATUTES REGULATING THE SAME,
BE TAKEN DIRECTLY TO THE SUPREME COURT."  ACT OF MAR. 3, 1911, SEC.
129, 36 STAT. 1134.  FINALLY, THE FAMOUS JUDGES' BILL OF 1925, IN TURN
STRUCK THE "NOTWITHSTANDING" LANGUAGE, WITH THE RESULT THAT THE
CODIFIED PROVISION, SEC. 129, SIMPLY ALLOWED AN APPEAL TO BE "TAKEN
FROM (AN) INTERLOCUTORY ORDER OR DECREE (GRANTING OR DENYING AN
INJUNCTION OR APPOINTING A RECEIVER) TO THE CIRCUIT COURT OF APPEALS .
. . " ACT OF FEB. 13, 1925, AMENDING SEC. 129, 43 STAT. 937. 

THE 1928 AMENDMENT IS COMPLETELY WITHOUT RELEVANCE HERE SINCE IT
MERELY EXTENDED THE APPLICABILITY OF THE STATUTE TO INTERLOCUTORY
ORDERS ISSUED BY THE DISTRICT COURTS OF ALASKA, HAWAII, THE VIRGIN
ISLANDS, AND THE CANAL ZONE.  ACT OF APR. 11, 1928, C. 354, 45 STAT.
422. 

/21/  SEE S. REP. NO. 2192, 59TH CONG., 1ST SESS. (1906):  H. R.
REP. NO. 542, 59TH CONG., 1ST SESS. (1906); 40 CONG.REC.  1723, 1742,
4429, 4856-4857, 5056. 

/22/  AS TO THE 1911 AMENDMENT, SEE S. REP. NO. 388, 61ST CONG., 2D
SESS., PT. 1, P. 53 (1910); H. R. DOC. NO. 783, 61ST CONG., 2D SESS.,
57 (1910); H. R. REP. NO. 818, 61ST CONG., 2D SESS. (1910); S. DOC. NO.
848, 61ST CONG., 3D SESS. (1911); 45 CONG.REC.  4001.  AS TO THE 1925
AMENDMENT, SEE S. REP. NO. 362, 68TH CONG. 1ST SESS., 3 (1924); H. R.
REP. NO. 1075, 68TH CONG., 2D SESS., 4-5 (1925); HEARING ON S. 2060 AND
S. 2061 BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY,
68TH CONG., 1ST SESS., 12 (1924). 

/23/  THUS, THE 1906 AMENDMENT, SEE N. 20, SUPRA, WAS INTENDED TO
RENDER INEFFECTIVE CERTAIN EVASIVE PLEADING TACTICS THAT HAD
THERETOFORE BEEN EMPLOYED TO TAKE ADVANTAGE OF THE FACT THAT UNDER THE
EVARTS ACT AN INTERLOCUTORY APPEAL COULD BE TAKEN WHERE ONLY A
NONCONSTITUTIONAL ISSUE WAS AT STAKE BUT NOT WHERE A CONSTITUTIONAL
ISSUE WAS INVOLVED.  SEE H. R. REP. NO. 542, 59TH CONG., 1ST SESS., 2-3
(1906); 40 CONG.REC.  1723 (REMARKS OF REP. BRANTLEY); ID., AT 4856
(REMARKS OF SEN. BACON). 

THE LEGISLATIVE HISTORY CONCERNING THE 1911 AMENDMENT, SEE N. 20,
SUPRA, INDICATES THAT THE "NOTWITHSTANDING" LANGUAGE WAS DESIGNED TO
"REMOVE ANY DOUBT" THAT THE LIMITATION-- INITIALLY STRUCK BY THE 1906
AMENDMENT-- ON INTERLOCUTORY APPEALS TO THOSE CASES IN WHICH AN APPEAL
MIGHT BE TAKEN TO THE COURT OF APPEALS AFTER A FINAL DECREE HAD BEEN
ELIMINATED.  BUT THIS MERELY SUGGESTS AN INTENT FINALLY TO RESOLVE WITH
EVEN MORE SPECIFIC LANGUAGE THE PROBLEM OF EVASIVE PLEADING WHICH HAD
MOTIVATED THE 1906 AMENDMENT.  SEE S. REP. NO. 388, 61ST CONG., 2D
SESS., PT. 1, P. 53 (1910).  THUS, IN RESPONSE TO INQUIRY WHETHER THIS
AMENDMENT CONSTITUTED "A CHANGE IN THE EXISTING LAW," SENATOR HEYBURN,
A SPONSOR OF THE LEGISLATION, SAID ON THE SENATE FLOOR, "THIS IS THE
EXISTING LAW."  45 CONG.REC.  4001. 

AS TO THE 1925 VERSION OF THE INTERLOCUTORY APPEALS PROVISION, SEE
N. 20, SUPRA, THE ANALYSIS PREPARED BY THE COMMITTEE OF THIS COURT
WHICH DRAFTED IT EXPLAINED THAT THE "NOTWITHSTANDING" LANGUAGE WAS
"ELIMINATED AS HAVING NO FURTHER APPLICATION IN VIEW OF THE REPEAL OF"
THE PROVISIONS THAT HAD NECESSITATED THE INITIAL 1906 AMENDMENT. 
HEARING ON S. 2060 AND S. 2061 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 68TH CONG., 1ST SESS., 12 (1924).  AND IF
THE ADDITION OF THE "NOTWITHSTANDING" LANGUAGE IN 1911 DID NOT
ESTABLISH COURT OF APPEALS JURISDICTION OVER INTERLOCUTORY ORDERS IN
EXPEDITING ACT CASES, WE FAIL TO SEE HOW DROPPING THAT LANGUAGE IN 1925
DID SO.  AT THE SAME TIME, ELSEWHERE IN THE JUDGES' BILL, SEC. 2 OF THE
EXPEDITING ACT WAS CARRIED FORWARD WITHOUT ALTERATION.  SEE ACT OF FEB.
13, 1925, AMENDING SEC. 238(1), 43 STAT. 938.  IN DOING SO, IT WAS
STATED:  "A DIRECT REVIEW BY THE SUPREME COURT OF AN INTERLOCUTORY OR
FINAL JUDGMENT OR DECREE OF A DISTRICT COURT MAY BE HAD WHERE IT IS SO
PROVIDED IN THE FOLLOWING ACTS OR PARTS OF ACTS, AND NOT OTHERWISE:
(1) SECTION 2 OF THE ACT OF FEBRUARY 11, 1903, 'TO EXPEDITE THE HEARING
AND DETERMINATION' OF CERTAIN SUITS BROUGHT BY THE UNITED STATES UNDER
THE ANTITRUST . . . LAWS . . . " IBID.  SECTION 2, OF COURSE, HAS NEVER
CONTAINED A PROVISION ALLOWING APPEAL OF INTERLOCUTORY ORDERS. 
MOREOVER, MR. JUSTICE VAN DEVANTER, A MEMBER OF THIS COURT'S COMMITTEE
THAT PREPARED THE BILL, TESTIFIED BEFORE THE SENATE COMMITTEE THAT THE
CHARACTER OF EXPEDITING ACT CASES "SUGGESTS) THAT THEY SHOULD GO
DIRECTLY TO THE SUPREME COURT RATHER THAN THROUGH THE CIRCUIT COURTS OF
APPEALS" WITHOUT ANY INDICATION THAT AN EXCEPTION WAS BEING INTRODUCED
FOR INTERLOCUTORY APPEALS TO THE COURTS OF APPEALS.  HEARING ON S. 2060
AND S. 2061 BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY, 68TH CONG., 1ST SESS., 33 (1924).  SEE ALSO S. REP. NO. 362,
68TH CONG., 1ST SESS., 3 (1924). 

/24/  CERTAINLY THE COURT SPOKE FULLY COGNIZANT OF AT LEAST THE
AMENDMENT CONTAINED IN THE JUDGES' BILL OF JUST FOUR YEARS BEFORE, SEE
N. 20, SUPRA, SINCE ALL SEVEN SITTING JUSTICES HAD BEEN ON THE COURT
WHEN ITS COMMITTEE SUBMITTED THE BILL TO CONGRESS. 

/25/  IN ALKALI EXPORT ASSN., THE COURT WENT ON TO SAY:
"(EXTRAORDINARY) WRITS MAY NOT BE USED AS A SUBSTITUTE FOR AN
AUTHORIZED APPEAL; AND WHERE, AS HERE, THE STATUTORY SCHEME (THE
EXPEDITING ACT) PERMITS APPELLATE REVIEW OF INTERLOCUTORY ORDERS ONLY
ON APPEAL FROM THE FINAL JUDGMENT, REVIEW BY CERTIORARI OR OTHER
EXTRAORDINARY WRIT IS NOT PERMISSIBLE IN THE FACE OF THE PLAIN
INDICATION OF THE LEGISLATIVE PURPOSE TO AVOID PIECEMEAL REVIEWS."  325
U.S.,AT 203.  NEVERTHELESS, THE COURT FOUND THAT EXIGENT CIRCUMSTANCES
ASSOCIATED WITH THE DISTRICT COURT'S DENIAL OF THE DEFENDANT'S MOTION
TO DISMISS THE ACTION JUSTIFIED IMMEDIATE REVIEW BY COMMON-LAW
CERTIORARI IN THE PARTICULAR CASE.  ID., AT 203-204. 

THE COURT IN DE BEERS, STATING THAT "(WHAT IS . . . SAID (IN ALKALI
EXPORT ASSN.) APPLIES IN THIS INSTANCE," 325 U.S.,AT 217, GRANTED
REVIEW UNDER THE ALL WRITS ACT OF A PRELIMINARY INJUNCTION, ALTHOUGH
NORMALLY REVIEW WOULD HAVE BEEN TO THE COURT OF APPEALS UNDER WHAT IS
NOW 28 U.S.C. 1292(A)(1). 

OF COURSE, NOTHING WE SAY TODAY SIGNIFIES A RETREAT FROM OUR
PREVIOUS STATEMENTS THAT APPEALS OF INTERLOCUTORY ORDERS IN GOVERNMENT
CIVIL ANTITRUST CASES CANNOT BE TAKEN EVEN TO THIS COURT. 

/26/  ACT OF JUNE 25, 1948, 62 STAT. 929. 

/27/  IN 1951 REFERENCE TO THE DISTRICT COURT OF GUAM WAS INSERTED
IN THE SECTION, ACT OF OCT. 31, 1951, SEC. 49, 65 STAT. 726, AND
REFERENCE TO THE DISTRICT COURT FOR THE TERRITORY OF ALASKA WAS REMOVED
FROM THE SECTION EFFECTIVE UPON THE ADMISSION OF ALASKA INTO THE UNION
IN 1959, ACT OF JULY 7, 1958, SEC. 12(E), 72 STAT. 348.  FINALLY, WHEN
SUBSECTION (B) WAS ADDED TO THE SECTION, THE FORMER ENTIRE SECTION WAS
DESIGNATED SUBSECTION (A).  ACT OF SEPT. 2, 1958, PUB. L. 85-919, 72
STAT. 1770. 

/28/  THE PORTION OF THE PROVISION GOVERNING APPEAL OF INTERLOCUTORY
ORDERS APPOINTING RECEIVERS AND RELATED MATTERS BECAME 28 U.S.C.
1292(2) (1946 ED., SUPP. II), NOW 28 U.S.C. 1292(A)(2). 

/29/  SEE S. REP. NO. 1559, 80TH CONG., 2D SESS., 1-2 (1948) ("GREAT
CARE HAS BEEN EXERCISED TO MAKE NO CHANGES IN THE EXISTING LAW WHICH
WOULD NOT MEET WITH SUBSTANTIALLY UNANIMOUS APPROVAL"); H. R. REP. NO.
308, 80TH CONG., 1ST SESS., 1-8 (1947). 

/30/  H. R. REP. NO. 2646 OF THE COMMITTEE ON REVISION OF THE LAWS
OF THE HOUSE OF REPRESENTATIVES TO ACCOMPANY H.R. 7124, 79TH CONG., 2D
SESS., APP. A107-108 (1946).  SEE ALSO H.R. REP. NO. 308 OF THE
COMMITTEE ON THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES TO ACCOMPANY
H.R. 3214, 80TH CONG., 1ST SESS., APP. A110-111 (1947). 

/31/  COMPARE N. 20, SUPRA, WITH N. 23, SUPRA. 

/32/  SEE SUPRA, AT 160-161.  SIMILARLY, TWO OF THREE COURTS OF
APPEALS WHICH HAVE CONSIDERED THE QUESTION HAVE CONCLUDED THAT AN
INTERLOCUTORY APPEAL DOES NOT LIE UNDER SEC. 1292(A)(1) IN EXPEDITING
ACT CASES.  SEE UNITED STATES V. CITIES SERVICE CO., 410 F.2D 662 (CA1
1969); UNITED STATES V. FMC CORP., 321 F.2D 534 (CA9 1963).  BUT SEE
UNITED STATES V. INGERSOLL-RAND CO., 320 F.2D 509, 511-517 (CA3 1963). 

/33/  CF. S. REP. NO. 2434, 85TH CONG., 2D SESS., 3 (1958); H. R.
REP. NO. 1667, 85TH CONG., 2D SESS., 2 (1958). 

/34/  IT WAS ONLY SUBSEQUENT TO THE ENACTMENT OF SEC. 1292(B) THAT A
SINGLE COURT OF APPEALS CONCLUDED-- DESPITE THE UNQUALIFIED STATEMENTS
BY THIS COURT SINCE UNITED STATES V. CALIFORNIA COOPERATIVE CANNERIES,
279 U.S.,AT 558, TO THE CONTRARY-- THAT AN INTERLOCUTORY APPEAL WOULD
LIE UNDER SEC. 1292(A)(1) IN A GOVERNMENT CIVIL ANTITRUST CASE.  SEE
UNITED STATES V. INGERSOLL-RAND CO., 320 F.2D, AT 511-517.  SEE ALSO
FISONS LTD. V. UNITED STATES, 458 F.2D, AT 1244-1248, CERT. DENIED, 405
U.S. 1041 (1972) (SEC. 1292(B)).     /35/  SEE S. REP. NO. 2434, 85TH
CONG., 2D SESS. (1958); H. R. REP. NO. 1667, 85TH CONG., 2D SESS.
(1958); HEARINGS ON H. R. 6238 BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 85TH CONG., 2D SESS. (1958); 104 CONG.REC. 
8002 (REMARKS OF REP. KEATING).  SEE ALSO REPORT OF THE PROCEEDINGS OF
THE REGULAR ANNUAL MEETING OF THE JUDICIAL CONFERENCE OF THE UNITED
STATES 32-33 (1951); REPORT OF THE PROCEEDINGS OF A SPECIAL MEETING OF
THE JUDICIAL CONFERENCE OF THE UNITED STATES 7 (1952); REPORT OF THE
PROCEEDINGS OF THE REGULAR ANNUAL MEETING OF THE JUDICIAL CONFERENCE OF
THE UNITED STATES 27-28 (1953).   /36/  THE SENATE REPORT SUGGESTS THE
DENIAL OF A MOTION TO DISMISS AN ANTITRUST ACTION AS BARRED BY THE
STATUTE OF LIMITATIONS AS ONE INSTANCE IN WHICH AN INTERLOCUTORY APPEAL
MIGHT BE DESIRABLE.  BUT IT GOES ON TO STATE: "DISPOSITION OF ANTITRUST
CASES MAY TAKE CONSIDERABLE TIME, YET UPON APPEAL FOLLOWING FINAL
DISPOSITION OF SUCH CASES, THE COURT OF APPEALS MAY WELL DETERMINE THAT
THE STATUTE OF LIMITATIONS HAD RUN AND FOR THAT REASON THE DISTRICT
COURT DID NOT HAVE JURISDICTION."  S. REP. NO. 2434, 85TH CONG., 2D
SESS., 3 (1958).  THE REFERENCE TO ANTITRUST CASES IN CHIEF JUDGE JOHN
J. PARKER'S TESTIMONY AT THE HEARINGS ON SEC. 1292(B) WAS ALSO CLEARLY
LIMITED TO PRIVATE TREBLE-DAMAGES ACTIONS.  SEE HEARINGS ON H.R. 6238
BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 85TH
CONG., 2D SESS., 9 (1958). 

/37/  38 STAT. 731, 15 U.S.C. 15. 

/38/  S. REP. NO. 2434, 85TH CONG., 2D SESS., 2 (1958). 

/39/ SEE ID., AT 2-3; H. R. REP. NO. 1667, 85TH CONG., 2D SESS., 1
(1958); HEARINGS ON H.R. 6238 BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 85TH CONG., 2D SESS., 8 (1958). 

/40/  CF. H. R. REP. NO. 1667, 85TH CONG., 2D SESS., 1-2 (1958). 

/41/  PETITIONER SUGGESTS TWO AVENUES OF ESCAPE FROM THIS ANOMALOUS
SITUATION:  (1) THAT UNDER SEC. 1292(A)(1) AN INTERLOCUTORY APPEAL MAY
IN FACT LIE FROM AN INJUNCTIVE ORDER IN A GOVERNMENT CIVIL ANTI-TRUST
CASE; (2) THAT IF AN APPEAL FROM SUCH AN ORDER CANNOT BE TAKEN UNDER
SEC. 1292(A), IT MAY NEVERTHELESS BE TAKEN UNDER SEC. 1292(B) SINCE,
THE ARGUMENT GOES, THE LATTER APPLIES TO ALL ORDERS NOT APPEALABLE
UNDER THE FORMER, "WHATEVER THE NATURE OF THE ORDER AND WHATEVER THE
REASON FOR ITS NON-APPEALABILITY."  REPLY BRIEF FOR PETITIONER 7-8. 
OUR DISCUSSION IN PART I OF THIS OPINION IS SUFFICIENT TO DISPOSE OF
PETITIONER'S FIRST CONTENTION.  AS TO THE SECOND ARGUMENT, WHILE THE
LANGUAGE OF SEC. 1292(B) IS UNQUALIFIED ON ITS FACE, THE LEGISLATIVE
HISTORY INDICATES THAT CONGRESS WAS CONCERNED ONLY WITH ORDERS OF TYPES
OTHER THAN THOSE SPECIFIED IN SEC. 1292(A); IN OTHER WORDS, SEC.
1292(B) WAS INTENDED TO SUPPLEMENT SEC. 1292(A), NOT TO PROVIDE A
SUBSTITUTE FOR IT.  SEE N. 35, SUPRA.  MOREOVER, IT WOULD BE, TO SAY
THE LEAST, EXTRAORDINARY FOR CONGRESS TO HAVE RESORTED TO SUCH A SUBTLE
METHOD OF ESTABLISHING FOR THE FIRST TIME IN GOVERNMENT CIVIL ANTITRUST
CASES INTERLOCUTORY APPEALS FOR ORDERS OF THE TYPE SPECIFIED IN SEC.
1292(A) WITHOUT GIVING ANY HINT WHATSOEVER THAT THIS WAS ITS PURPOSE. 

/42/  BRIEF FOR UNITED STATES 18. 

/43/  NOR CAN IT BE IGNORED THAT SUBSEQUENT TO BOTH THE 1948
REVISION WHICH RESULTED IN SEC. 1292(A) AND THE ENACTMENT OF SEC.
1292(B), WE HAVE REAFFIRMED THAT A FINAL JUDGMENT IS AN ESSENTIAL
PREREQUISITE TO AN APPEAL OF AN ORDER ISSUED IN A GOVERNMENT CIVIL
ANTITRUST CASE SINCE "CONGRESS . . . LIMITED THE RIGHT OF REVIEW IN
SUCH CASES TO AN APPEAL FROM A DECREE WHICH DISPOSED OF ALL MATTERS,
AND IT PRECLUDED THE POSSIBILITY OF AN APPEAL EITHER TO THIS COURT OR
TO A COURT OF APPEALS FROM AN INTERLOCUTORY DECREE."  BROWN SHOE CO. V.
UNITED STATES, 370 U.S.,AT 305 N. 9.  SECTION 1292 WAS NOT, TO BE SURE,
SPECIFICALLY AT ISSUE IN BROWN SHOE.  BUT IN HOLDING AS IT DID, THAT
THE DISTRICT COURT'S DECREE WAS APPEALABLE ONLY BECAUSE IT WAS "FINAL,"
ID., AT 306-309, THE COURT NECESSARILY FORECLOSED THE POSSIBILITY OF AN
INTERLOCUTORY APPEAL TO ANY COURT, AND THUS ITS REMARK CONCERNING THE
PRECLUSION OF INTERLOCUTORY APPEALS CANNOT BE LIGHTLY DISMISSED. 

/44/  THE SOLE EXCEPTION TO THIS WOULD BE IF THE CERTIFIED QUESTION
HAD PREVIOUSLY BEEN CONSIDERED BY WAY OF CERTIORARI. 

/45/  ONLY IF WE WERE TO DISPOSE OF A CONTROLLING QUESTION IN SUCH A
WAY AS TO END ALL PROCEEDINGS WOULD THE POSSIBILITY OF A SUBSEQUENT
APPEAL BE FORECLOSED.  A THRESHOLD ISSUE OF JURISDICTION MIGHT PRESENT
SUCH A CONTROLLING QUESTION; BUT EVEN THAT TYPE OF ISSUE WILL OFTEN NOT
END AN ENTIRE GOVERNMENT CIVIL ANTITRUST CASE WHICH MIGHT INVOLVE A
NUMBER OF PARTIES-- AS IS TRUE IN THIS CASE WHERE THE CERTIFIED
QUESTION RELATES TO ONLY ONE OF THE TWO DEFENDANTS. 

/46/  SEE ALSO FISONS LTD. V. UNITED STATES, 458 F.2D 1241 (CA7),
CERT. DENIED, 405 U.S. 1041 (1972) (SERVICE OF PROCESS); FARBENFABRIKEN
BAYER, A. G. V. UNITED STATES, 1968 CCH TRADE CAS. PARA. 72,570 (CADC),
CERT. DENIED, 393 U.S. 959 (1968) (QUASI IN REM JURISDICTION). 

/47/  OTHER THAN THRESHOLD PROCEDURAL ISSUES, THE QUESTION
CONSISTENTLY SOUGHT TO BE RAISED ON INTERLOCUTORY APPEAL HAS BEEN THE
PROPRIETY OF ORDERS GRANTING OR DENYING PRELIMINARY INJUNCTIONS WITH
RESPECT TO PROPOSED ACQUISITIONS.  SEE UNITED STATES V. CITIES SERVICE
CO., 410 F.2D 662 (CA1 1969); UNITED STATES V. FMC CORP., 321 F.2D 534
(CA9 1963); UNITED STATES V. INGERSOLL-RAND CO., 320 F.2D 509 (CA3
1963).  ALTHOUGH APPEALS OF SUCH ORDERS WOULD INVOLVE THE MERITS OF THE
ANTITRUST ACTIONS, THE FACT IS THAT PERMITTING INTERLOCUTORY APPEAL
UNDER SEC. 1292(B) WOULD NOT BRING THESE ORDERS AND THE RELATED
EVIDENCE BEFORE THE COURTS OF APPEALS SINCE THEY COME WITHIN SEC.
1292(A)(1).  CF. N. 41, SUPRA.  MOREOVER, BECAUSE OF THE NEED FOR SPEED
IF AN ACQUISITION IS TO BE ENJOINED BEFORE ACCOMPLISHED, REQUESTS FOR
SUCH INTERLOCUTORY ORDERS MUST BE DETERMINED AFTER, AT MOST, ONLY AN
INITIAL HEARING AND WITHOUT FULL DEVELOPMENT OF THE RECORD. 
CONSEQUENTLY, APPEALS FROM SUCH ORDERS WOULD NOT NECESSARILY BRING
BEFORE THE COURTS OF APPEALS THE LENGTHY RECORDS AND NUMEROUS DOCUMENTS
WITH WHICH WE HAVE OFTEN BEEN FORCED TO DEAL AFTER FINAL JUDGMENT. 

/48/  SEE S. REP. NO. 2434, 85TH CONG., 2D SESS., 1-2 (1958). 

/49/  OF COURSE, THIS PROBLEM WOULD NOT EXIST IF THE INTERLOCUTORY
DECISION WERE REVIEWED IMMEDIATELY ON CERTIORARI IN THIS COURT; BUT, AS
WE HAVE ALREADY SEEN, THIS ALTERNATIVE ENTAILS SERIOUS PROBLEMS OF ITS
OWN. 

/50/ IN THIS RESPECT, IT MUST BE RECALLED THAT INTERLOCUTORY APPEAL
UNDER SEC. 1292(B) IS SUBJECT TO THE DECISION OF THE COURT OF APPEALS
IN THE EXERCISE OF ITS DISCRETION, TO ALLOW APPEAL OF THE QUESTION
CERTIFIED BY THE DISTRICT COURT.  THUS, THE EFFECTIVENESS OF SEC.
1292(B) IN GOVERNMENT CIVIL ANTITRUST CASES WOULD BE DEPENDENT UPON THE
WILLINGNESS OF THE COURTS OF APPEALS TO ASSUME THIS NEW BURDEN AWARE OF
THE LIMITED IMPORT OF THEIR DECISIONS AND OF THE FACT THAT
INTERLOCUTORY APPEALS IN SUCH CASES WOULD REPRESENT ONLY ADDED WORK FOR
THEM, SINCE THEY WOULD NOT OTHERWISE CONSIDER ANY APPEAL. 

MR. JUSTICE WHITE JOINS THE COURT'S OPINION EXCEPT FOR THE ADVISORY
TO CONGRESS REFLECTING ONE VIEW OF THE RELATIVE MERITS OF THE
EXPEDITING ACT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH MR. JUSTICE STEWART THAT THE APPEAL OF THE
INTERLOCUTORY ORDER IN THIS CASE TO THE COURT OF APPEALS UNDER 28
U.S.C. 1292(B) WAS NOT BARRED BY THE EXPEDITING ACT.  BUT I DISAGREE
WITH THE INTIMATIONS IN BOTH THE MAJORITY OPINION AND THE OTHER
DISSENTING OPINION THAT BECAUSE OF OUR OVERWORK THE ANTITRUST CASES
SHOULD FIRST BE ROUTED TO THE COURTS OF APPEALS AND ONLY THEN BROUGHT
HERE.  /1/ 

THE CASE FOR OUR "OVERWORK" IS A MYTH.  THE TOTAL NUMBER OF CASES
FILED HAS INCREASED FROM 1063 CASES IN THE 1939 TERM TO 3643 IN THE
1971 TERM.  THAT INCREASE HAS LARGELY BEEN IN THE IN FORMA PAUPERIS
CASES, 117 BEING FILED IN THE 1939 TERM AND 1930 IN THE 1971 TERM.  BUT
WE GRANT CERTIORARI OR NOTE PROBABLE JURISDICTION IN VERY FEW CASES. 
THE SIGNED OPINIONS OF THE COURT (WHICH ARE ONLY IN ARGUED CASES)
TOTALED 137 IN THE 1939 TERM WITH SIX PER CURIAMS /2/  OR A TOTAL OF
143 COURT OPINIONS, WHILE IN THE 1971 TERM WE HAD 129 SIGNED OPINIONS
OF THE COURT AND 20 PER CURIAMS /3/  OR A TOTAL OF 149 COURT OPINIONS. 
SO IN TERMS OF PETITIONS FOR CERTIORARI GRANTED AND APPEALS NOTED AND
SET FOR ARGUMENT OUR LOAD TODAY IS SUBSTANTIALLY WHAT IT WAS 33 YEARS
AGO. 

THE LOAD OF WORK SO FAR AS PROCESSING CASES IS CONCERNED HAS
INCREASED.  THAT WORK IS IMPORTANT; AND IN MANY WAYS IT IS THE MOST
IMPORTANT WORK WE DO.  FOR THE SELECTION OF CASES ACROSS THE BROAD
SPECTRUM OF ISSUES PRESENTED IS THE VERY HEART OF THE JUDICIAL
PROCESS.  ONCE OUR JURISDICTION WAS LARGELY MANDATORY AND THE BACKLOG
OF CASES PILED HIGH.  THE 1925 ACT /4/  CHANGED ALL THAT, LEAVING TO
THE COURT THE SELECTION OF THOSE CERTIORARI CASES WHICH SEEM IMPORTANT
TO THE PUBLIC INTEREST.  THE CONTROL OF THE DOCKET WAS LEFT TO THE
MINORITY, ONLY FOUR VOTES OUT OF NINE BEING NECESSARY TO GRANT A
PETITION.  THE REVIEW OR SIFTING OF THESE PETITIONS IS IN MANY RESPECTS
THE MOST IMPORTANT AND, I THINK, THE MOST INTERESTING OF ALL OUR
FUNCTIONS.  ACROSS THE SCREEN EACH TERM COME THE WORRIES AND CONCERNS
OF THE AMERICAN PEOPLE-- HIGH AND LOW-- PRESENTED IN CONCRETE, TANGIBLE
FORM.  MOST OF THESE CASES HAVE BEEN BEFORE TWO OR MORE COURTS ALREADY;
AND IT IS SELDOM IMPORTANT THAT A THIRD OR FOURTH REVIEW BE GRANTED. 
BUT WE HAVE NATIONAL STANDARDS FOR MANY OF OUR FEDERAL-STATE PROBLEMS
AND IT IS IMPORTANT, WHERE THEY CONTROL, THAT THE NATIONAL STANDARDS BE
UNIFORM; AND IT IS EQUALLY IMPORTANT WHERE STATE LAW IS SUPREME, THAT
THE STATES BE ALLOWED TO EXPERIMENT WITH VARIOUS APPROACHES AND
SOLUTIONS. 

NEITHER TAKING THAT JURISDICTION FROM US NOR THE DEVICE OF REDUCING
OUR JURISDICTION IS NECESSARY FOR THE PERFORMANCE OF OUR DUTIES.  WE
ARE, IF ANYTHING, UNDERWORKED, NOT OVERWORKED.  OUR TIME IS LARGELY
SPENT IN THE FASCINATING TASK OF READING PETITIONS FOR CERTIORARI AND
JURISDICTIONAL STATEMENTS.  THE NUMBER OF CASES TAKEN OR PUT DOWN FOR
ORAL ARGUMENT HAS NOT MATERIALLY INCREASED IN THE LAST 30 YEARS. 

THE EXPEDITING ACT, 15 U.S.C. 28, 29, INVOLVED IN THE PRESENT CASE,
DOES NOT CONTRIBUTE MATERIALLY TO OUR CASELOAD.  IN THE 1967 TERM WE
HAD 12 SUCH CASES BUT ONLY THREE OF THEM WERE ARGUED, THE OTHERS BEING
DISPOSED OF SUMMARILY.  IN THE 1968 TERM WE HAD EIGHT, BUT ONLY THREE
OF THEM WERE ARGUED.  IN THE 1969 TERM WE HAD FOUR; ONLY TWO BEING
ARGUED.  IN THE 1970 TERM ONLY TWO SUCH CASES REACHED US AND EACH WAS
ARGUED.  IN THE 1971 TERM FOUR SUCH CASES REACHED US, TWO OF THEM BEING
ARGUED.  /5/ 

IF THERE ARE ANY COURTS THAT ARE SURFEITED, THEY ARE THE COURTS OF
APPEALS.  IN MY CIRCUIT-- THE NINTH-- IT IS NOT UNCOMMON FOR A JUDGE TO
WRITE OVER 50 OPINIONS FOR THE COURT IN ONE TERM.  THAT CIRCUIT HAS AT
THE PRESENT TIME A 15-MONTH BACKLOG OF CIVIL CASES, WHILE WE ARE
CURRENT.  THE AVERAGE NUMBER OF SIGNED OPINIONS FOR THE COURT IN THIS
COURT IS CLOSE TO 12 PER JUSTICE; ONLY OCCASIONALLY DOES ANYONE WRITE
EVEN AS MANY AS 18; AND WE HAVE NO BACKLOG. 

SEPARATE OPINIONS-- INCLUDING DISSENTS AND CONCURRING OPINIONS--
MULTIPLY.  IF THEY ARE ADDED TO THE TOTAL OF 149 FOR THE 1971 TERM, THE
OVERALL NUMBER WOULD BE 328.  BUT THE WRITING OF CONCURRENCES,
DISSENTS, OR SEPARATE OPINIONS IS WHOLLY IN THE DISCRETION OF THE
JUSTICE.  IT IS NOT MANDATORY WORK; IT IS WRITING DONE IN THE VAST
LEISURE TIME WE PRESENTLY HAVE. 

THE ANTITRUST CASES ARE ONLY SMALL FRACTIONS OF OUR CASELOAD.  YET
THEY REPRESENT LARGE ISSUES OF IMPORTANCE TO THE ECONOMY, TO CONSUMERS,
AND TO THE MAINTENANCE OF THE FREE-ENTERPRISE SYSTEM.  CONGRESS HAS
EXPRESSED IN THE SHERMAN ACT, /6/  THE CLAYTON ACT, /7/  THE ROBINSON
PATMAN ACT, /8/  AND THE CELLER-KEFAUVER ACT /9/  A CLEAR POLICY TO
KEEP THE AVENUES OF BUSINESS OPEN, TO BAR MONOPOLIES, AND TO SAVE THE
COUNTRY FROM THE CARTEL SYSTEM WHICH IS THE PRODUCT OF GARGANTUAN
GROWTH. 

IT IS OF COURSE FOR CONGRESS AND CONGRESS ALONE TO DETERMINE WHETHER
THE EXPEDITING ACT /10/  SHOULD BRING THE ANTITRUST CASES DIRECTLY
HERE.  WHILE I JOIN THE STATUTORY CONSTRUCTION IN MR. JUSTICE STEWART'S
DISSENT, I DO NOT JOIN THAT PART WHICH EXPRESSES TO ME AN INACCURATE
ACCOUNT OF THE "OVERWORK" OF THE COURT.  WE ARE VASTLY UNDERWORKED. 
ONE INTERESTED IN HISTORY WILL DISCOVER THAT ONCE UPON A TIME HUGO
BLACK WROTE OVER 30 OPINIONS FOR THE COURT IN A TERM WHERE ONLY 135
OPINIONS WERE WRITTEN FOR THE COURT, A FEW MORE THAN WE ALL WROTE LAST
TERM. 

/1/  IT IS TRUE THAT SEVERAL JUSTICES OVER THE YEARS HAVE EXPRESSED
THE DESIRE THAT THE ANTITRUST CASES COME TO US ONLY BY CERTIORARI TO
THE COURTS OF APPEALS.  SO FAR AS I AM AWARE THE ONLY OPINION SPEAKING
FOR THE COURT CONTAINING THAT SUGGESTION IS UNITED STATES V. SINGER
MFG. CO., 374 U.S. 174.  BUT THERE THE IDEA WAS CONTAINED ONLY IN A
FOOTNOTE (ID., AT 175 N. 1); AND AS MR. CHIEF JUSTICE HUGHES WAS WONT
TO SAY, "FOOTNOTES DO NOT REALLY COUNT." 

/2/  NOT INCLUDING ORDERS OF DISMISSAL OR AFFIRMANCE. 

/3/  INCLUDING ORDERS OF DISMISSAL OR AFFIRMANCE. 

/4/  JUDICIARY ACT OF FEB. 13, 1925, 43 STAT. 936. 

/5/  FORD MOTOR CO. V. UNITED STATES, 405 U.S. 562; UNITED STATES V.
TOPCO ASSOCIATES, 405 U.S. 596. 

THE ANTITRUST CASES NOT ARGUED IN THE 1967-1971 TERMS WERE EITHER
REVERSED OUT OF HAND OR AFFIRMED OUT OF HAND (SOME OF THESE BEING
COMPANION CASES TO THOSE THAT WERE ARGUED), OR DISMISSED AS MOOT, OR
DISMISSED FOR WANT OF JURISDICTION.  THERE WERE THREE DISMISSED FOR
WANT OF JURISIDICTION. 

FARBENFABRIKEN BAYER A. G. V. UNITED STATES, 393 U.S. 216, INVOLVED
AN INTERLOCUTORY ORDER IN WHICH WE RULED THAT WE HAD NO JURISDICTION. 
STANDARD FRUIT & S. S. CO. V. UNITED FRUIT CO., 393 U.S. 406, INVOLVED
AN EFFORT OF A CORPORATION, NOT A PARTY, TO INSPECT THE DIVESTITURE
PLANS BEING SUBMITTED TO THE DISTRICT COURT PURSUANT TO A CONSENT
JUDGMENT.  GARRETT FREIGHTLINES V. UNITED STATES, 405 U.S. 1035,
INVOLVED AN APPEAL FROM A DEFENDANT DISMISSED FROM THE ANTITRUST CASE
BECAUSE OF THE PRIMARY JURISDICTION OF THE INTERSTATE COMMERCE
COMMISSION OVER THE ACQUISITION IN QUESTION.     /6/  SHERMAN ANTI
TRUST ACT OF JULY 2, 1890, C. 647, 26 STAT. 209, 15 U.S.C. 1-7. 

/7/  CLAYTON ACT OF OCT. 15, 1914, 38 STAT. 730, 15 U.S.C. 12 ET
SEQ., 44. 

/8/  ROBINSON-PATMAN ACT OF JUNE 19, 1936, 49 STAT. 1526, 15 U.S.C.
13, 13A, 13B, 21A, 1013. 

/9/  CELLER-KEFAUVER ACT OF DEC. 29, 1950, 64 STAT. 1125, 15 U.S.C.
18, 21.     /10/  FOR THE LEGISLATIVE HISTORY OF THE ACT SEE H. R. REP.
NO. 3020, 57TH CONG., 2D SESS. 

SENATOR FAIRBANKS, LEADING EXPONENT OF THE ACT, SAID IN REPORTING IT
TO THE SENATE:  "THE FAR-REACHING IMPORTANCE OF THE CASES ARISING UNDER
ANTITRUST LAWS NOW UPON THE STATUTE BOOKS OR HEREAFTER TO BE ENACTED,
AND THE GENERAL PUBLIC INTEREST THEREIN, ARE SUCH THAT EVERY REASONABLE
MEANS SHOULD BE PROVIDED FOR SPEEDING THE LITIGATION.  IT IS THE
PURPOSE OF THE BILL TO EXPEDITE LITIGATION OF GREAT AND GENERAL
IMPORTANCE.  IT HAS NO OTHER OBJECT."  36 CONG.REC.  1679. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE REHNQUIST CONCURS, AND
MR. JUSTICE DOUGLAS CONCURS IN PART, DISSENTING. 

THE EXPEDITING ACT, ENACTED IN 1903, PROVIDES THAT IN CIVIL
ANTITRUST ACTIONS BROUGHT BY THE UNITED STATES "AN APPEAL FROM THE
FINAL JUDGMENT OF THE DISTRICT COURT WILL LIE ONLY TO THE SUPREME
COURT."  SECTION 1292(B), ENATCTED IN 1958, PROVIDES THAT WHEN A
DISTRICT COURT, "IN MAKING IN A CIVIL ACTION AN ORDER NOT OTHERWISE
APPEALABLE UNDER THIS SECTION," SHALL APPROPRIATELY CERTIFY THE
QUESTION INVOLVED, THE COURT OF APPEALS HAS DISCRETIONARY JURISDICTION
TO HEAR AN INTERLOCUTORY JURISDICTION TO HEAR AN INTERLOCUTORY APPEAL
FROM THAT ORDER.  THUS, THE EXPEDITING ACT, BY ITS TERMS, RELATES ONLY
TO APPEALS FROM FINAL JUDGMENTS IN A LIMITED CATEGORY OF CASES, WHILE
SEC. 1292(B) APPLIES TO APPEALS FROM CERTAIN INTERLOCUTORY ORDERS IN
ALL CIVIL ACTIONS.  THE EXPEDITING ACT DOES NOT PROHIBIT COURT OF
APPEALS JURISDICTION UNDER SEC. 1292(B), FOR THE FORMER APPLIES ONLY TO
FINAL JUDGMENTS, WHILE THE LATTER APPLIES ONLY TO INTERLOCUTORY
ORDERS.  TO FIND ANY INCONSISTENCY WHATEVER BETWEEN THE TWO STATUTES
THUS REQUIRES REJECTION OF THE PLAIN MEANING OF EACH OF THEM--
REJECTION, IN SHORT, OF A MOST BASIC PRINCIPLE OF STATUTORY
CONSTRUCTION.  AS THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
RECOGNIZED IN FISONS LTD. V. UNITED STATES, 458 F.2D 1241, 1245 (1972),
"THE LANGUAGE OF EACH (CAN) BE GIVEN FULL EFFECT WITHOUT LIMITING THE
SCOPE OF THE OTHER." 

MOREOVER, THE PURPOSE OF SEC. 1292(B) IS WHOLLY CONSISTENT WITH THAT
OF THE EXPEDITING ACT.  THE 1903 STATUTE WAS MOTIVATED BY THE VIEW THAT
GOVERNMENT ANTITRUST ACTIONS ARE SO IMPORTANT THAT THEY SHOULD BE
EXPEDITED.  SHENANDOAH VALLEY BROADCASTING V. ASCAP, 375 U.S. 39, 40
(1963).  /1/  SO, TOO, THE MOTIVATION BEHIND SEC. 1292(B), ENACTED 55
YEARS LATER, WAS THE CONTEMPORARY VIEW THAT INTERLOCUTORY APPEALS
INVOLVING IMPORTANT AND CONTROLLING QUESTIONS OF LAW ARE A USEFUL MEANS
OF EXPEDITING LITIGATION.  ALTHOUGH SEC. 1292(B) AUTHORIZES A DEPARTURE
FROM THE GENERAL RULE AGAINST INTERLOCUTORY APPEALS, IT DOES SO ONLY
FOR THE PURPOSE OF MATERIALLY ADVANCING THE ULTIMATE TERMINATION OF THE
LITIGATION.  /2/  THUS, THE EXPEDITING ACT AND SEC. 1292(B) ARE
ANIMATED BY PRECISELY THE SAME OBJECTIVES AND WARRANTED BY PRECISELY
THE SAME CIRCUMSTANCES, AND THEY SHOULD BE READ TOGETHER AS
SUPPLEMENTING ONE ANOTHER, NOT AS ANTAGONISTIC. 

THE LEGISLATIVE HISTORY OF SEC. 1292(B) INDICATES THAT ITS PRIMARY
BENEFIT WAS EXPECTED TO OCCUR IN THE PROTRACTED OR "BIG" CASES,
INCLUDING CIVIL ANTITRUST LITIGATION.  /3/  YET, IF NO APPEAL CAN BE
TAKEN TO A COURT OF APPEALS UNDER SEC. 1292(B) IN A CIVIL ANTITRUST
SUIT WHERE THE GOVERNMENT IS PLAINTIFF, THEN THE PURPOSE BEHIND THE
STATUTE CANNOT BE SERVED AT ALL IN THESE CASES, FOR NO STATUTE PROVIDES
FOR SUCH AN INTERLOCUTORY APPEAL DIRECTLY TO THIS COURT.  IT SEEMS TO
ME THAT IF CONGRESS HAD WANTED TO EXCLUDE CASES LIKE THIS ONE FROM THE
BENEFICENT PROVISIONS OF SEC. 1292(B), IT WOULD HAVE SAID SO.  /4/ 

THE EXPEDITING ACT ORIGINALLY PROVIDED THAT GOVERNMENT ANTITRUST
CASES WOULD BE HEARD BY A PANEL OF JUDGES UPON THE CERTIFICATION OF THE
ATTORNEY GENERAL.  THAT PROVISION IS NOW 15 U.S.C. 28, WHICH PROVIDES
FOR A PANEL OF THREE.  THE PURPOSE OF THE PROVISION WAS TO ENSURE THAT
CASES WOULD RECEIVE FULL CONSIDERATION BY A PANEL OF JUDGES BEFORE
PRESENTATION TO THIS COURT.  /5/  THE EXPEDITING ACT, OF COURSE, HAS
BEEN CRITICIZED BECAUSE IT ROUTES COMPLEX CASES DIRECTLY HERE WITHOUT
BENEFIT OF SCREENING BY THE COURTS OF APPEALS.  AS WE STATED IN UNITED
STATES V. SINGER MFG. CO., 374 U.S. 174, 175 N. 1 (1963): 

     "WHATEVER MAY HAVE BEEN THE WISDOM OF THE EXPEDITING ACT IN

  PROVIDING DIRECT APPEALS IN ANTITRUST CASES AT THE TIME OF ITS

  ENACTMENT IN 1903, TIME HAS PROVEN IT UNSATISFACTORY . . . DIRECT

  APPEALS NOT ONLY PLACE A GREAT BURDEN ON THE COURT BUT ALSO

  DEPRIVE US OF THE VALUABLE ASSISTANCE OF THE COURTS OF APPEALS." 

SEE ALSO BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 355 (1962)
(CLARK, J., CONCURRING); ID., AT 364-365 (HARLAN, J., DISSENTING IN
PART AND CONCURRING IN PART); UNITED STATES V. BORDEN CO., 370 U.S.
460, 477 N. (1962) (HARLAN, J., DISSENTING); FORD MOTOR CO. V. UNITED
STATES, 405 U.S. 562, 595 N. 5 (1972) (BURGER, C. J., CONCURRING IN
PART AND DISSENTING IN PART).  INTERLOCUTORY APPEALS UNDER SEC. 1292(B)
IN GOVERNMENT ANTITRUST CASES WOULD PROVIDE SCREENING OF AT LEAST SOME
ISSUES IN AT LEAST SOME CASES BY COURTS OF APPEALS BEFORE THOSE ISSUES
REACH THIS COURT; AND THIS, AS SHOWN ABOVE, WOULD BE CONSISTENT WITH
THE ORIGINAL POLICY OF THE EXPEDITING ACT.  THE COURT'S DECISION TODAY
PRECLUDES, IN CASES LIKE THIS, BOTH THE USEFUL EXPEDITING EFFECT OF
SEC. 1292(B) AND THE EQUALLY DESIRABLE POTENTIAL OF INTERMEDIATE REVIEW
BY THE COURTS OF APPEALS OF IMPORTANT LEGAL ISSUES. 

IT IS SAID THAT A BAN ON COURT OF APPEALS JURISDICTION UNDER SEC.
1292(B) IN GOVERNMENT ANTITRUST CASES IS TO BE DERIVED FROM THE
PROVISIONS OF SEC. 1292(A)(1).  THE LATTER SECTION PROVIDES THAT THE
COURTS OF APPEALS SHALL HAVE JURISDICTION OF APPEALS FROM INTERLOCUTORY
ORDERS OF DISTRICT COURTS GRANTING OR DENYING INJUNCTIONS "EXCEPT WHERE
A DIRECT REVIEW MAY BE HAD IN THE SUPREME COURT."  THE ARGUMENT IS THAT
THAT LANGUAGE EXPRESSLY EXCLUDES COURT OF APPEALS JURISDICTION IN
EXPEDITING ACT CASES; AND SINCE THERE IS NOTHING IN THE LANGUAGE OF
SEC. 1292(B) THAT CONTRADICTS THIS EXPRESS EXCLUSION, INTERLOCUTORY
ORDERS IN EXPEDITING ACT CASES ARE LIKEWISE NOT APPEALABLE UNDER SEC.
1292(B).  IF SEC. 1292(B) DID ALLOW COURT OF APPEALS JURISDICTION IN
THIS CASE, IT IS SAID, THE RESULT WOULD BE THAT AN INTERLOCUTORY ORDER
IN A GOVERNMENT ANTITRUST CASE COULD BE APPEALED TO A COURT OF APPEALS
ONLY IF IT DID NOT INVOLVE AN INJUNCTION; AND THAT RESULT WOULD
EFFECTIVELY TURN SEC. 1292 ON ITS HEAD, BECAUSE IN NON-EXPEDITING ACT
CASES, SEC. 1292 GIVES PRIORITY TO INJUNCTIVE ORDERS, WHICH MAY BE
APPEALED AS OF RIGHT. 

THERE ARE SEVERAL ANSWERS TO THIS ARGUMENT.  AT THE OUTSET, IT IS
NOT CLEAR THAT THE MAJOR PREMISE-- THAT SEC. 1292(A)(1) EXPRESSLY
EXCLUDES COURT OF APPEALS JURISDICTION IN EXPEDITING ACT CASES-- IS
VALID.  ON THAT QUESTION, THE CIRCUITS ARE DIVIDED, THE FIRST AND THE
NINTH DENYING THEIR JURISDICTION, /6/  AND THE THIRD UPHOLDING
APPEALABILITY.  /7/  WE HAVE NEVER BEFORE FACED THE QUESTION NOR
RESOLVED THE CONFLICT. 

BUT EVEN IF THE EXPEDITING ACT DOES BAR COURT OF APPEALS
JURISDICTION TO REVIEW INTERLOCUTORY INJUNCTIVE ORDERS UNDER SEC.
1292(A)(1) IN GOVERNMENT ANTITRUST CASES, IT DOES NOT FOLLOW THAT THERE
MUST BE A SIMILAR BAR TO SEC. 1292(B) JURISDICTION.  THE VERY FACT THAT
SEC. 1292(A)(1) CONTAINS EXPRESS LANGUAGE WHICH AT LEAST ARGUABLY
CREATES AN EXCEPTION TO COURT OF APPEALS JURISDICTION, WHILE SEC.
1292(B) CONTAINS NO SUCH LANGUAGE, IS REASON ENOUGH TO TREAT THE TWO
DIFFERENTLY.  BEYOND THAT, SEC. 1292(A)(1) HAS A HISTORY DRAMATICALLY
DIFFERENT FROM SEC. 1292(B).  THAT HISTORY WAS THOROUGHLY REVIEWED IN
UNITED STATES V. CITIES SERVICE CO., 410 F.2D 662 (CA1 1969), IN UNITED
STATES V. INGERSOLL-RAND CO., 320 F.2D 509 (CA3 1963), AND IN THE
COURT'S OPINION TODAY, ANTE, AT 155-163, AND NEED NOT BE DISCUSSED IN
DETAIL HERE.  SUFFICE IT TO SAY THAT THE ORIGINAL VERSION OF SEC.
1292(A)(1) WAS ENACTED IN 1891, AND THAT THE PROVISION WENT THROUGH
SEVERAL CHANGES IN LANGUAGE IN SUCCEEDING YEARS, DURING WHICH ITS
RELATIONSHIP TO THE 1903 EXPEDITING ACT WAS OFTEN UNCLEAR.  SEE UNITED
STATES V. CITIES SERVICE CO., 410 F.2D, AT 666-669.  THE PROVISION WAS
FINALLY CODIFIED IN ITS PRESENT FORM IN 1948, ALTHOUGH, AS THE ABOVE
MENTIONED CONFLICT AMONG THE CIRCUITS DEMONSTRATES, THAT CODIFICATION
DID NOT MAKE ITS RELATIONSHIP TO THE EXPEDITING ACT ANY CLEARER. 
WRITTEN ON A CLEAN SLATE IN 1958, AND REPRESENTING A SHARP BREAK WITH
THE TRADITIONAL POLICY AGAINST APPEALS FROM NONINJUNCTIVE INTERLOCUTORY
ORDERS.  AT THAT TIME, THERE WAS ALREADY GROWING DOUBT ABOUT THE WISDOM
OF THE EXPEDITING ACT; AND THE FACT THAT CONGRESS CONFERRED SEC.
1292(B) JURISDICTION WITHOUT MAKING ANY EXPRESS EXCEPTION FOR CASES
WHERE DIRECT REVIEW MAY BE HAD IN THIS COURT-- SUCH AS HAD BEEN IN SEC.
1292(A)(1) FOR SOME YEARS-- IS SURELY SOME INDICATION THAT CONGRESS IN
1958 WAS EXPRESSING THE CONTEMPORARY VIEW THAT INTERLOCUTORY APPEALS TO
THE COURTS OF APPEALS ON CONTROLLING QUESTIONS OF LAW PROVIDE A
DESIRABLE TOOL THAT SHOULD NOT BE DENIED EVEN IN EXPEDITING ACT CASES. 

AS TO THE POINT THAT THIS INTERPRETATION WOULD "TURN SEC. 1292 ON
ITS HEAD," IT IS CERTAINLY ARGUABLE THAT IF AN APPEAL FROM AN
INJUNCTIVE ORDER IN AN EXPEDITING ACT CASE CANNOT BE HAD UNDER SEC.
1292(A)(1), IT MAY STILL BE TAKEN UNDER SEC. 1292(B).  SECTION 1292(B)
RELATES TO ORDERS "NOT OTHERWISE APPEALABLE UNDER THIS SECTION,"
WHATEVER THE NATURE OF THE ORDER AND WHATEVER THE REASON FOR ITS
NONAPPEALABILITY.  HENCE, IF, IN GOVERNMENT ANTITRUST CASES, COURTS OF
APPEALS HAVE NO JURISDICTION UNDER SEC. 1292(A)(1), THEN AN
INTERLOCUTORY INJUNCTIVE ORDER WOULD BE AN ORDER "NOT OTHERWISE
APPEALABLE," AND SEC. 1292(B)'S DISCRETIONARY JURISDICTION MIGHT WELL
BE HELD TO APPLY. 

IN SHORT, THERE IS NO VALIDITY TO THE ARGUMENT THAT THE TERMS OF
SEC. 1292(A)(1), WHATEVER THEY MAY MEAN, HAVE ANY BEARING UPON THE
PROPER INTERPRETATION OF SEC. 1292(B). 

IT IS ALSO ARGUED THAT THE BASIC POLICY OF THE EXPEDITING ACT WAS TO
REMOVE ALL COURT OF APPEALS JURISDICTION IN GOVERNMENT ANTITRUST
CASES.  ACCORDING TO THIS ARGUMENT, ALTHOUGH THE ACT SPEAKS ONLY OF
FINAL JUDGMENTS, IT MUST BE UNDERSTOOD TO INCLUDE INTERLOCUTORY
APPEALS, SINCE, AT THE TIME THE ACT WAS PASSED, THE COURTS OF APPEALS
COULD REVIEW INTERLOCUTORY ORDERS ONLY IN CASES WHERE THEY COULD REVIEW
FINAL JUDGMENTS.  FROM UNITED STATES V. CALIFORNIA COOPERATIVE
CANNERIES, 279 U.S. 553, 558 (1929), TO BROWN SHOE CO. V. UNITED
STATES, 370 U.S.,AT 305 N. 9, THE ARGUMENT GOES, THIS COURT HAS
CONSISTENTLY INDICATED THAT COURTS OF APPEALS MAY NOT EXERCISE
JURISDICTION IN EXPEDITING ACT CASES, REGARDLESS OF WHETHER THE APPEAL
IS FROM A FINAL OR INTERLOCUTORY ORDER; AND IT SHOULD NOT BE ASSUMED
THAT CONGRESS IN 1958 REPEALED THIS LONGSTANDING INTERPRETATION BY
LEGISLATION THAT IS NOT ADDRESSED SPECIFICALLY TO APPEALS IN THESE
CASES. 

I FAIL TO SEE HOW WE EFFECT ANYTHING LIKE A REPEALER OF THE
EXPEDITING ACT BY CONSTRUING SEC. 1292(B) TO PERMIT COURT OF APPEALS
JURISDICTION THEREUNDER IN EXPEDITING ACT CASES.  AS DEMONSTRATED
ABOVE, THERE IS NO INCONSISTENCY WHATEVER BETWEEN THIS CONSTRUCTION OF
SEC. 1292(B) AND THE PLAIN LANGUAGE OF THE EXPEDITING ACT.  IT IS
EQUALLY CLEAR THAT THE REASON WHY IN 1903, AND INDEED FOR 55 YEARS
THEREAFTER, COURTS OF APPEALS COULD NOT REVIEW NONINJUNCTIVE
INTERLOCUTORY ORDERS IN CASES WHERE THEY COULD NOT REVIEW THE FINAL
JUDGMENT IS NOT THAT THE EXPEDITING ACT FORBADE SUCH REVIEW, BUT THAT
THERE WAS NO STATUTORY AUTHORITY FOR SUCH REVIEW IN ANY CASES
WHATSOEVER.  IN 1958, HOWEVER, CONGRESS BROKE WITH THE OLD POLICY
AGAINST INTERLOCUTORY APPEALS FROM NONINJUNCTIVE ORDERS AND
SPECIFICALLY PROVIDED THAT SUCH APPEALS MAY BE TAKEN TO THE COURTS OF
APPEALS IN THEIR DISCRETION IN ALL CIVIL ACTIONS, WHERE THE QUESTION IS
PROPERLY CERTIFIED.  I SEE NO REASON, IN THE ABSENCE OF SOME STATUTORY
PROHIBITION, TO REFRAIN FROM APPLYING THAT CLEAR LANGUAGE, WHETHER OR
NOT THE COURT OF APPEALS CAN REVIEW THE FINAL JUDGMENT. 

THE CASES CITED BY THE GOVERNMENT DO NOT PERSUADE ME OTHERWISE. 
CALIFORNIA CANNERIES, OF COURSE, WAS DECIDED 29 YEARS BEFORE THE
ENACTMENT OF SEC. 1292(B); AND WHATEVER WAS SAID THERE WAS A JUDGMENT
ON WHAT CONGRESS HAD DONE, NOT ON WHAT IT COULD DO OR ON THE MEANING OF
WHAT IT WAS TO DO 29 YEARS LATER.  BROWN SHOE DOES POSTDATE THE
ENACTMENT OF SEC. 1292(B); BUT THAT CASE INVOLVED A DIRECT APPEAL TO
THIS COURT, AND THE ONLY QUESTION ABOUT APPEALABILITY WAS WHETHER THE
APPEALED ORDER WAS FINAL.  THE ISSUE OF COURT OF APPEALS JURISDICTION
UNDER SEC. 1292(B) WAS NOT INVOLVED THERE, NOR WAS THE 1958 ACT EVEN
MENTIONED IN THE SHORT FOOTNOTE DICTUM SO HEAVILY RELIED ON BY THE
GOVERNMENT.  THAT DICTUM DID LITTLE MORE THAN QUOTE THE LANGUAGE OF
CALIFORNIA CANNERIES, AND IT SURELY CANNOT BE UNDERSTOOD TO DECIDE THE
ISSUE NOW BEFORE US. 

FINALLY, IT IS SAID THAT IT WOULD BE ANOMALOUS FOR A COURT OF
APPEALS THAT IS WITHOUT JURISDICTION TO ENTERTAIN AN APPEAL FROM A
FINAL JUDGMENT TO DECIDE AN INTERLOCUTORY ISSUE THAT COULD CONTROL THE
OUTCOME OF THE CASE.  BUT THERE IS NO CASE IN WHICH THE JUDGMENT OF A
COURT OF APPEALS IS NECESSARILY FINAL.  WHENEVER A COURT OF APPEALS
DECIDES A CONTROLLING QUESTION OF LAW IN ANY LITIGATION, ITS VIEWS ARE
SUBJECT TO REVIEW HERE.  FAR FROM BEING ANOMALOUS, INTERLOCUTORY REVIEW
OF POTENTIALLY DISPOSITIVE QUESTIONS BY THE COURTS OF APPEALS IN
GOVERNMENT ANTITRUST CASES WOULD BE HELPFUL TO THIS COURT, GIVING US
THE BENEFIT OF INTERMEDIATE APPELLATE CONSIDERATION IN THESE CASES.  WE
COULD THEN EXERCISE OUR CERTIORARI POWER INFORMED BY THE REASONING OF
AN APPELLATE COURT, AND THERE MIGHT BE NO LATER DIRECT APPEAL AT ALL
FROM THE FINAL JUDGMENT.  AND SURELY INTERLOCUTORY APPEALS UNDER SEC.
1292(B) IN GOVERNMENT ANTITRUST CASES WOULD SERVE TO LIGHTEN THE BURDEN
ON TRIAL COURTS AND LITIGANTS ALIKE. 

WE CANNOT, OF COURSE, CREATE AN APPELLATE JURISDICTION NOT CREATED
BY CONGRESS, HOWEVER DESIRABLE.  BUT WHAT CONGRESS HAS CONFERRED, WE
SHOULD NOT REJECT. 

I WOULD REVERSE THE ORDER OF THE COURT OF APPEALS DENYING
TIDEWATER'S PETITION TO APPEAL UNDER SEC. 1292(B) FOR LACK OF
JURISDICTION, AND I WOULD REMAND THIS CASE TO THAT COURT WITH
DIRECTIONS TO CONSIDER THE MERITS OF THE PETITION TO APPEAL. 

/1/  IN REPORTING THE BILL THAT BECAME THE EXPEDITING ACT, SENATOR
FAIRBANKS STATED THAT: "(EVERY REASONABLY MEANS SHOULD BE PROVIDED FOR
SPEEDING THE LITIGATION.  IT IS THE PURPOSE OF THE BILL TO EXPEDITE
LITIGATION OF GREAT AND GENERAL IMPORTANCE.  IT HAS NO OTHER OBJECT. 
36 CONG.REC.  1679. 

/2/  THE SENATE REPORT ON THE BILL THAT BECAME SEC. 1292(B) STATED: 

"THIS LEGISLATION RESULTS FROM A CONSIDERABLE STUDY BY COMMITTEES OF
THE JUDICIAL CONFERENCE.  THE LEGISLATION ITSELF WAS INTRODUCED AT THE
REQUEST OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS
PURSUANT TO THE DIRECTION OF THE JUDICIAL CONFERENCE OF THE UNITED
STATES . . . THE BILL RESULTS FROM A GROWING AWARENESS OF THE NEED FOR
EXPEDITION OF CASES PENDING BEFORE THE DISTRICT COURTS.  MANY CASES
WHICH ARE FILED IN THE FEDERAL DISTRICT COURTS REQUIRE THE DISTRICT
JUDGE TO ENTERTAIN MOTIONS AT AN EARLY STAGE IN THE PROCEEDINGS WHICH,
IF DETERMINED, AGAINST THE PLAINTIFF, RESULT IN A FINAL ORDER WHICH
WOULD THEN BE APPEALABLE TO THE CIRCUIT COURTS OF APPEALS OF THE UNITED
STATES.  HOWEVER, SUCH MOTIONS, IF DETERMINED IN THE PLAINTIFF'S FAVOR,
ARE INTERLOCUTORY SINCE THEY DO NOT END THE LITIGATION AND ARE NOT
THEREFORE, UNDER EXISTING PROVISIONS OF LAW, APPEALABLE . . . 

"THE COMMITTEE BELIEVES THAT THIS LEGISLATION CONSTITUTES A
DESIRABLE ADDITION TO THE EXISTING AUTHORITY TO APPEAL FROM
INTERLOCUTORY ORDERS OF THE DISTRICT COURTS OF THE UNITED STATES . . .
ANY LEGISLATION, THEREFORE, APPROPRIATELY SAFEGUARDED, WHICH MIGHT AID
IN THE DISPOSITION OF CASES BEFORE THE DISTRICT COURTS OF THE UNITED
STATES BY SAVING USELESS EXPENDITURE OF COURT TIME IS SUCH AS TO
REQUIRE THE APPROBATION OF ALL THOSE DIRECTLY CONCERNED WITH THE
ADMINISTRATION OF JUSTICE IN THE UNITED STATES."  S. REP. NO. 2434,
85TH CONG., 2D SESS., 2, 4 (1958). 

/3/  THE SENATE REPORT STATED: 

"THERE ARE MANY CIVIL ACTIONS FROM WHICH SIMILAR ILLUSTRATIONS COULD
BE FURNISHED.  FOR EXAMPLE, IN AN ANTITRUST ACTION A PLEA MAY BE
ENTERED THAT THE CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS.  IF
THIS MOTION IS DENIED, UNDER EXISTING LAW THE MATTER IS NOT APPEALABLE
AND THE CASE THEN GOES FORWARD TO TRIAL.  DISPOSITION OF ANTITRUST
CASES MAY TAKE CONSIDERABLE TIME, YET UPON APPEAL FOLLOWING FINAL
DISPOSITION OF SUCH CASES, THE COURT OF APPEALS MAY WELL DETERMINE THAT
THE STATUTE OF LIMITATIONS HAD RUN AND FOR THAT REASON THE DISTRICT
COURT DID NOT HAVE JURISDICTION."  ID., AT 3. 

/4/  ALTHOUGH THE ANTITRUST CASES REFERRED TO IN THE SENATE
COMMITTEE REPORT ON SEC. 1292(B) WERE APPARENTLY PRIVATE CASES, RATHER
THAN GOVERNMENT LITIGATION, THE PROPOSED LEGISLATION WAS INTRODUCED,
AFTER CONSIDERABLE STUDY, AT THE DIRECTION OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES (N. 2, SUPRA), WHOSE MEMBERS-- ALL EMINENT FEDERAL
JUDGES-- WERE SURELY FAMILIAR WITH THE APPELLATE PROCEDURE IN CIVIL
ANTITRUST CASES BROUGHT BY THE GOVERNMENT. 

/5/  THE HOUSE REPORT ON THE BILL EXPLAINS THIS PROVISION BY QUOTING
A LETTER OF THE ATTORNEY GENERAL AS FOLLOWS: 

"THERE ARE A NUMBER OF CASES NOW PROVIDED BY STATUTE WHERE APPEALS
MAY BE MADE DIRECTLY TO THE SUPREME COURT FROM THE DISTRICT AND CIRCUIT
COURTS . . . 

"THE CLASS OF CASES THAT I SUGGEST SHOULD BE BROUGHT WITHIN THIS
RULE, IT SEEMS TO ME, IS OF AS GREAT IMPORTANCE AS ANY OF THOSE
REFERRED TO.  THE SUGGESTED PROVISION REQUIRING A FULL BENCH OF THE
CIRCUIT JUDGES WOULD INSURE THE CASES RECEIVING AS FULL CONSIDERATION
BEFORE PRESENTATION TO THE SUPREME COURT AS IF HEARD BY THE UNITED
STATES CIRCUIT COURT OF APPEALS."  H. R. REP. NO. 3020, 57TH CONG., 2D
SESS., 2 (1903). 

/6/  UNITED STATES V. CITIES SERVICE CO., 410 F.2D 662 (CA1 1969);
UNITED STATES V. FMC CORP., 321 F.2D 534 (CA9 1963). 

/7/  UNITED STATES V. INGERSOLL-RAND CO., 320 F.2D 509 (CA3 1963). 
THE REASONING OF THE THIRD CIRCUIT IN THIS CASE WAS AS FOLLOWS:
INTERLOCUTORY INJUNCTIVE ORDERS "EXCEPT WHERE A DIRECT REVIEW MAY BE
HAD IN THE SUPREME COURT."  SINCE THE SUPREME COURT HAS DIRECT REVIEW
IN EXPEDITING ACT CASES ONLY FROM FINAL JUDGMENTS, IT HAS NONE FROM
INTERLOCUTORY ORDERS.  HENCE, THE EXCEPTION IN SEC. 1292(A)(1) DOES NOT
BAR COURT OF APPEALS JURISDICTION OVER INTERLOCUTORY INJUNCTIVE ORDERS
IN GOVERNMENT ANTITRUST CASES.  THE COURT THEN CONCLUDED: 

"IN FACT, IT IS EXTREMELY DIFFICULT AND REQUIRES DOING VIOLENCE TO
THE LANGUAGE OF THE STATUTE TO ESCAPE THE CONCLUSION THAT INTERLOCUTORY
ORDERS, SUCH AS THE ONE AT BAR, ARE REVIEWABLE BY A COURT OF APPEALS
EXCEPTING AND ONLY EXCEPTING THOSE TYPES OF CASES IN WHICH AN
INTERLOCUTORY ORDER IS DIRECTLY REVIEWABLE BY THE SUPREME COURT."  320
F.2D, AT 517. 

MOSES LASKY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS
WAS C. LANSING HAYS, JR. 

A. RAYMONG RANDOLPH, JR., ARGUED THE CAUSE FOR THE UNITED STATES PRO
HAC VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD AND
ASSISTANT ATTORNEY GENERAL KAUPER. 
..END :









NEIL V. BIGGERS, 409 U.S. 188 


       NEIL, WARDEN V. BIGGERS

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 71-586.  ARGUED OCTOBER 18-19, 1972-- DECIDED DECEMBER

           6, 1972 


RESPONDENT WAS CONVICTED OF RAPE ON EVIDENCE THAT CONSISTED IN PART
OF TESTIMONY CONCERNING THE VICTIM'S VISUAL AND VOICE IDENTIFICATION OF
RESPONDENT AT A STATION-HOUSE SHOWUP THAT OCCURRED SEVEN MONTHS AFTER
THE RAPE.  THE VICTIM, WHO HAD BEEN IN THE PRESENCE OF HER ASSAILANT A
CONSIDERABLE TIME AND HAD DIRECTLY OBSERVED HIM INDOORS AND UNDER A
FULL MOON OUTDOORS, TESTIFIED THAT SHE HAD "NO DOUBT" THAT RESPONDENT
WAS HER ASSAILANT.  SHE HAD PREVIOUSLY GIVEN THE POLICE A DESCRIPTION
OF HER ASSAILANT, WHICH WAS CONFIRMED BY A POLICE OFFICER.  BEFORE THE
SHOWUP WHERE SHE IDENTIFIED RESPONDENT, THE VICTIM HAD MADE NO
IDENTIFICATION OF OTHERS WHO WERE PRESENTED AT PREVIOUS SHOWUPS,
LINEUPS, OR THROUGH PHOTOGRAPHS.  THE POLICE ASSERTED THAT THEY USED
THE SHOWUP TECHNIQUE BECAUSE THEY HAD DIFFICULTY IN FINDING FOR A
LINEUP OTHER INDIVIDUALS GENERALLY FITTING RESPONDENT'S DESCRIPTION AS
GIVEN BY THE VICTIM.  THE TENNESSEE SUPREME COURT'S AFFIRMANCE OF THE
CONVICTION WAS AFFIRMED HERE BY AN EQUALLY DIVIDED COURT.  390 U.S.
404.  RESPONDENT THEN BROUGHT A HABEAS CORPUS ACTION IN DISTRICT
COURT.  AFTER REJECTING THE PETITIONER'S CONTENTION THAT THIS COURT'S
AFFIRMANCE CONSTITUTED AN ACTUAL ADJUDICATION WITHIN THE MEANING OF 28
U.S.C. 2244(C) AND THUS BARRED FURTHER REVIEW OF THE SHOWUP
IDENTIFICATION IN A FEDERAL HABEAS CORPUS PROCEEDING, THE DISTRICT
COURT, NOTING THAT A LINEUP IS RELATIVELY MORE RELIABLE THAN A SHOWUP,
HELD THAT THE CONFRONTATION HERE WAS SO SUGGESTIVE AS TO VIOLATE DUE
PROCESS.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THIS COURT'S EQUALLY DIVIDED AFFIRMANCE OF RESPONDENT'S STATE
COURT CONVICTION DOES NOT, UNDER 28 U.S.C. 2244(C), BAR FURTHER FEDERAL
RELIEF BY HABEAS CORPUS, SINCE SUCH AN AFFIRMANCE MERELY ENDS THE
PROCESS OF DIRECT REVIEW BUT SETTLES NO ISSUE OF LAW.  PP. 190-192. 

2.  WHILE THE STATION-HOUSE IDENTIFICATION MAY HAVE BEEN SUGGESTIVE,
UNDER THE TOTALITY OF THE CIRCUMSTANCES THE VICTIM'S IDENTIFICATION OF
RESPONDENT WAS RELIABLE AND WAS PROPERLY ALLOWED TO GO TO THE JURY. 
PP. 196-201. 

448 F.2D 91, AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  BRENNAN, J.,
FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, IN WHICH
DOUGLAS AND STEWART, JJ., JOINED, POST, P. 201.  MARSHALL, J., TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

IN 1965, AFTER A JURY TRIAL IN A TENNESSEE COURT, RESPONDENT WAS
CONVICTED OF RAPE AND WAS SENTENCED TO 20 YEARS' IMPRISONMENT.  THE
STATE'S EVIDENCE CONSISTED IN PART OF TESTIMONY CONCERNING A STATION
HOUSE IDENTIFICATION OF RESPONDENT BY THE VICTIM.  THE TENNESSEE
SUPREME COURT AFFIRMED.  BIGGERS V. STATE, 219 TENN. 553, 411 S.W.2D
696 (1967).  ON CERTIORARI, THE JUDGMENT OF THE TENNESSEE SUPREME COURT
WAS AFFIRMED BY AN EQUALLY DIVIDED COURT.  BIGGERS V. TENNESSEE, 390
U.S. 404 (1968) (MARSHALL, J., NOT PARTICIPATING).  RESPONDENT THEN
BROUGHT A FEDERAL HABEAS CORPUS ACTION RAISING SEVERAL CLAIMS.  IN
REPLY, PETITIONER CONTENDED THAT THE CLAIMS WERE BARRED BY 28 U.S.C.
2244(C), WHICH PROVIDES IN PERTINENT PART: 

     "IN A HABEAS CORPUS PROCEEDING BROUGHT IN BEHALF OF A PERSON
IN

  CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT, A PRIOR

  JUDGMENT OF THE SUPREME COURT OF THE UNITED STATES ON AN APPEAL

  OR REVIEW BY A WRIT OF CERTIORARI AT THE INSTANCE OF THE PRISONER

  OF THE DECISION OF SUCH STATE COURT, SHALL BE CONCLUSIVE AS TO

  ALL ISSUES OF FACT OR LAW WITH RESPECT TO AN ASSERTED DENIAL OF A

  FEDERAL RIGHT WHICH CONSTITUTES GROUND FOR DISCHARGE IN A HABEAS

  CORPUS PROCEEDING, ACTUALLY ADJUDICATED BY THE SUPREME COURT

  THEREIN . . . "

THE DISTRICT COURT HELD THAT THE CLAIMS WERE NOT BARRED AND, AFTER A
HEARING, HELD IN AN UNREPORTED OPINION THAT THE STATION-HOUSE
IDENTIFICATION PROCEDURE WAS SO SUGGESTIVE AS TO VIOLATE DUE PROCESS. 
THE COURT OF APPEALS AFFIRMED.  448 F.2D 91 (1971).  WE GRANTED
CERTIORARI TO DECIDE WHETHER AN AFFIRMANCE BY AN EQUALLY DIVIDED COURT
IS AN ACTUAL ADJUDICATION BARRING SUBSEQUENT CONSIDERATION ON HABEAS
CORPUS, AND, IF NOT, WHETHER THE IDENTIFICATION PROCEDURE VIOLATED DUE
PROCESS.  405 U.S. 954 (1972). 

        I 

THE INTENDED SCOPE OF THE PHRASE "ACTUALLY ADJUDICATED BY THE
SUPREME COURT" MUST BE DETERMINED BY REFERENCE TO THE PECULIARITIES OF
FEDERAL COURT JURISDICTION AND THE CONTEXT IN WHICH SEC. 2244(C) WAS
ENACTED.  JURISDICTION TO HEAR STATE PRISONER CLAIMS ON HABEAS CORPUS
WAS FIRST EXPRESSLY CONFERRED ON THE FEDERAL COURTS BY THE JUDICIARY
ACT OF 1867, C. 28, 14 STAT. 385.  THEREAFTER, DECISIONS OF THIS COURT
ESTABLISHED NOT ONLY THAT RES JUDICATA WAS INAPPLICABLE, E.G., SALINGER
V. LOISEL, 265 U.S. 224, 230 (1924); FAY V. NOIA, 372 U.S. 391, 423
(1963), BUT ALSO THAT FEDERAL COURTS WERE OBLIGED IN APPROPRIATE CASES
TO REDETERMINE ISSUES OF FACT AND FEDERAL LAW.  BY THE SAME TOKEN, THE
COURT DEVELOPED A NUMBER OF LIMITING PRINCIPLES TO RESTRAIN OPEN-ENDED
RELITIGATION, AMONG THEM THAT A SUCCESSIVE HABEAS CORPUS APPLICATION
RAISING GROUNDS REJECTED IN A PREVIOUS APPLICATION MIGHT BE DENIED
WITHOUT REACHING THE MERITS.  SALINGER V. LOISEL, SUPRA, AT 231. 

IN 1948, CONGRESS CODIFIED A VERSION OF THE SALINGER RULE IN 28
U.S.C. 2244.  AS REDESIGNATED AND AMENDED IN 1966, SEC. 2244(B) SHIELDS
AGAINST SENSELESS REPETITION OF CLAIMS BY STATE PRISONERS WITHOUT
ENDANGERING THE PRINCIPLE THAT EACH IS ENTITLED, OTHER LIMITATIONS
ASIDE, TO A REDETERMINATION OF HIS FEDERAL CLAIMS BY A FEDERAL COURT ON
HABEAS CORPUS.  WITH THIS IN MIND, THE PURPOSE OF SEC. 2244(C), ALSO
ENACTED IN 1966, BECOMES CLEAR.  THIS SUBSECTION EMBODIES A RECOGNITION
THAT IF THIS COURT HAS "ACTUALLY ADJUDICATED" A CLAIM ON DIRECT APPEAL
OR CERTIORARI, A STATE PRISONER HAS HAD THE FEDERAL REDETERMINATION TO
WHICH HE IS ENTITLED.  A SUBSEQUENT APPLICATION FOR HABEAS CORPUS
RAISING THE SAME CLAIMS WOULD SERVE NO VALID PURPOSE AND WOULD ADD
UNNECESSARILY TO AN ALREADY OVERBURDENED SYSTEM OF CRIMINAL JUSTICE. 
/1/ 

IN THIS LIGHT, WE REVIEW OUR CASES EXPLICATING THE DISPOSITION
"AFFIRMED BY AN EQUALLY DIVIDED COURT."  ON WHAT WAS APPARENTLY THE
FIRST OCCASION OF AN EQUAL DIVISION, THE ANTELOPE, 10 WHEAT.  66
(1825), THE COURT SIMPLY AFFIRMED ON THE POINT OF DIVISION WITHOUT MUCH
DISCUSSION.  ID., AT 126-127.  FACED WITH A SIMILAR DIVISION DURING THE
NEXT TERM, THE COURT AGAIN AFFIRMED, CHIEF JUSTICE MARSHALL EXPLAINING
THAT "THE PRINCIPLES OF LAW WHICH HAVE BEEN ARGUED, CANNOT BE SETTLED;
BUT THE JUDGMENT IS AFFIRMED, THE COURT BEING DIVIDED IN OPINION UPON
IT."  ETTING V. BANK OF THE UNITED STATES, 11 WHEAT.  59, 78 (1826). 
AS WAS LATER ELABORATED, IN SUCH CASES IT IS THE APPELLANT OR
PETITIONER WHO ASKS THE COURT TO OVERTURN A LOWER COURT'S DECREE. 

"IF THE JUDGES ARE DIVIDED, THE REVERSAL CANNOT BE HAD, FOR NO ORDER
CAN BE MADE.  THE JUDGMENT OF THE COURT BELOW, THEREFORE, STANDS IN
FULL FORCE.  IT IS, INDEED, THE SETTLED PRACTICE IN SUCH CASE TO ENTER
A JUDGMENT OF AFFIRMANCE; BUT THIS IS ONLY THE MOST CONVENIENT MODE OF
EXPRESSING THE FACT THAT THE CAUSE IS FINALLY DISPOSED OF IN CONFORMITY
WITH THE ACTION OF THE COURT BELOW, AND THAT THAT COURT CAN PROCEED TO
ENFORCE ITS JUDGMENT.  THE LEGAL EFFECT WOULD BE THE SAME IF THE
APPEAL, OR WRIT OF ERROR, WERE DISMISSED."  DURANT V. ESSEX CO., 7
WALL, 107, 112 (1869).  NOR IS AN AFFIRMANCE BY AN EQUALLY DIVIDED
COURT ENTITLED TO PRECEDENTIAL WEIGHT.  OHIO EX REL. EATON V. PRICE,
364 U.S. 263, 264 (1960).  WE DECLINE TO CONSTRUE SEC. 2244(C)'S BAR AS
EXTENDING TO CLAIMS ON WHICH THE JUDGMENT OF A STATE COURT STANDS
BECAUSE OF THE ABSENCE OF A MAJORITY POSITION IN THIS COURT, AND
ACCORDINGLY CONCLUDE THAT THE COURTS BELOW PROPERLY REACHED THE
MERITS.  /2/

        II 

WE PROCEED, THEN, TO CONSIDER RESPONDENT'S DUE PROCESS CLAIM.  /3/
AS THE CLAIM TURNS UPON THE FACTS, WE MUST FIRST REVIEW THE RELEVANT
TESTIMONY AT THE JURY TRIAL AND AT THE HABEAS CORPUS HEARING REGARDING
THE RAPE AND THE IDENTIFICATION.  THE VICTIM TESTIFIED AT TRIAL THAT ON
THE EVENING OF JANUARY 22, 1965, A YOUTH WITH A BUTCHER KNIFE GRABBED
HER IN THE DOORWAY TO HER KITCHEN:

     "A.  (HE GRABBED ME FROM BEHIND, AND GRAPPLED-- TWISTED ME ON
THE FLOOR. 

     "Q.  AND THERE WAS NO LIGHT IN THAT KITCHEN? 

     "A.  NOT IN THE KITCHEN. 

     "Q.  SO YOU COULDN'T HAVE SEEN HIM THEN? 

     "A.  YES, I COULD SEE HIM, WHEN I LOOKED UP IN HIS FACE. 

     "Q.  IN THE DARK? 

    "A.  HE WAS RIGHT IN THE DOORWAY-- IT WAS ENOUGH LIGHT FROM THE

  BEDROOM SHINING THROUGH.  YES, I COULD SEE WHO HE WAS. 

     "Q.  YOU COULD SEE?  NO LIGHT?  AND YOU COULD SEE HIM AND KNOW
HIM THEN? 

     "A.  YES."  TR. OF REC. IN NO. 237, O.T. 1967, PP. 33-34. 

WHEN THE VICTIM SCREAMED, HER 12-YEAR-OLD DAUGHTER CAME OUT OF HER
BEDROOM AND ALSO BEGAN TO SCREAM.  THE ASSAILANT DIRECTED THE VICTIM TO
"TELL HER (THE DAUGHTER) TO SHUT UP, OR I'LL KILL YOU BOTH."  SHE DID
SO, AND WAS THEN WALKED AT KNIFEPOINT ABOUT TWO BLOCKS ALONG A RAILROAD
TRACK, TAKEN INTO A WOODS, AND RAPED THERE.  SHE TESTIFIED THAT "THE
MOON WAS SHINING BRIGHTLY, FULL MOON."  AFTER THE RAPE, THE ASSAILANT
RAN OFF, AND SHE RETURNED HOME, THE WHOLE INCIDENT HAVING TAKEN BETWEEN
15 MINUTES AND HALF AN HOUR. 

SHE THEN GAVE THE POLICE WHAT THE FEDERAL DISTRICT COURT
CHARACTERIZED AS "ONLY A VERY GENERAL DESCRIPTION," DESCRIBING HIM AS
"BEING FAT AND FLABBY WITH SMOOTH SKIN, BUSHY HAIR AND A YOUTHFUL
VOICE."  ADDITIONALLY, THOUGH NOT MENTIONED BY THE DISTRICT COURT, SHE
TESTIFIED AT THE HABEAS CORPUS HEARING THAT SHE HAD DESCRIBED HER
ASSAILANT AS BEING BETWEEN 16 AND 18 YEARS OLD AND BETWEEN FIVE FEET
TEN INCHES AND SIX FEET TALL, AS WEIGHING BETWEEN 180 AND 200 POUNDS,
AND AS HAVING A DARK BROWN COMPLEXION.  THIS TESTIMONY WAS
SUBSTANTIALLY CORROBORATED BY THAT OF A POLICE OFFICER WHO WAS
TESTIFYING FROM HIS NOTES. 

ON SEVERAL OCCASIONS OVER THE COURSE OF THE NEXT SEVEN MONTHS, SHE
VIEWED SUSPECTS IN HER HOME OR AT THE POLICE STATION, SOME IN LINEUPS
AND OTHERS IN SHOWUPS, AND WAS SHOWN BETWEEN 30 AND 40 PHOTOGRAPHS. 
SHE TOLD THE POLICE THAT A MAN PICTURED IN ONE OF THE PHOTOGRAPHS HAD
FEATURES SIMILAR TO THOSE OF HER ASSAILANT, BUT IDENTIFIED NONE OF THE
SUSPECTS.  ON AUGUST 17, THE POLICE CALLED HER TO THE STATION TO VIEW
RESPONDENT, WHO WAS BEING DETAINED ON ANOTHER CHARGE.  IN AN EFFORT TO
CONSTRUCT A SUITABLE LINEUP, THE POLICE CHECKED THE CITY JAIN AND THE
CITY JUVENILE HOME.  FINDING NO ONE AT EITHER PLACE FITTING
RESPONDENT'S UNUSUAL PHYSICAL DESCRIPTION, THEY CONDUCTED A SHOWUP
INSTEAD. 

THE SHOWUP ITSELF CONSISTED OF TWO DETECTIVES WALKING RESPONDENT
PAST THE VICTIM.  AT THE VICTIM'S REQUEST, THE POLICE DIRECTED
RESPONDENT TO SAY "SHUT UP OR I'LL KILL YOU."  THE TESTIMONY AT TRIAL
WAS NOT ALTOGETHER CLEAR AS TO WHETHER THE VICTIM FIRST IDENTIFIED HIM
AND THEN ASKED THAT HE REPEAT THE WORDS OR MADE HER IDENTIFICATION
AFTER HE HAD SPOKEN.  /4/  IN ANY EVENT, THE VICTIM TESTIFIED THAT SHE
HAD "NO DOUBT" ABOUT HER IDENTIFICATION.  AT THE HABEAS CORPUS HEARING,
SHE ELABORATED IN RESPONSE TO QUESTIONING. 

     "A.  THAT I HAVE NO DOUBT, I MEAN THAT I AM SURE THAT WHEN I--

  SEE, WHEN I FIRST LAID EYES ON HIM, I KNEW THAT IT WAS THE

  INDIVIDUAL, BECAUSE HIS FACE-- WELL, THERE WAS JUST SOMETHING

  THAT I DON'T THINK I COULD EVER FORGET.  I BELIEVE-- 

     "Q.  YOU SAY WHEN YOU FIRST LAID EYES ON HIM, WHICH TIME ARE
YOU REFERRING TO? 

    "A.  WHEN I IDENTIFIED HIM-- WHEN I SEEN HIM IN THE COURTHOUSE

  WHEN I WAS TOOK UP TO VIEW THE SUSPECT."  APP. 127. 

WE MUST DECIDE WHETHER, AS THE COURTS BELOW HELD, THIS IDENTIFICATION
AND THE CIRCUMSTANCES SURROUNDING IT FAILED TO COMPORT WITH DUE PROCESS
REQUIREMENTS. 

        III 

WE HAVE CONSIDERED ON FOUR OCCASIONS THE SCOPE OF DUE PROCESS
PROTECTION AGAINST THE ADMISSION OF EVIDENCE DERIVING FROM SUGGESTIVE
IDENTIFICATION PROCEDURES.  IN STOVALL V. DENNO, 388 U.S. 293 (1967),
THE COURT HELD THAT THE DEFENDANT COULD CLAIM THAT "THE CONFRONTATION
CONDUCTED . . . WAS SO UNNECESSARILY SUGGESTIVE AND CONDUCIVE TO
IRREPARABLE MISTAKEN IDENTIFICATION THAT HE WAS DENIED DUE PROCESS OF
LAW."  ID., AT 301-302.  THIS, WE HELD, MUST BE DETERMINED "ON THE
TOTALITY OF THE CIRCUMSTANCES."  WE WENT ON TO FIND THAT ON THE FACTS
OF THE CASE THEN BEFORE US, DUE PROCESS WAS NOT VIOLATED, EMPHASIZING
THAT THE CRITICAL CONDITION OF THE INJURED WITNESS JUSTIFIED A SHOWUP
IN HER HOSPITAL ROOM.  AT TRIAL, THE WITNESS, WHOSE VIEW OF THE SUSPECT
AT THE TIME OF THE CRIME WAS BRIEF, TESTIFIED TO THE OUT-OF-COURT
IDENTIFICATION, AS DID SEVERAL POLICE OFFICERS PRESENT IN HER HOSPITAL
ROOM, AND ALSO MADE AN IN-COURT IDENTIFICATION. 

SUBSEQUENTLY, IN A CASE WHERE THE WITNESSES MADE IN-COURT
IDENTIFICATIONS ARGUABLY STEMMING FROM PREVIOUS EXPOSURE TO A
SUGGESTIVE PHOTOGRAPHIC ARRAY, THE COURT RESTATED THE GOVERNING TEST: 

     "(WE HOLD THAT EACH CASE MUST BE CONSIDERED ON ITS OWN FACTS,

  AND THAT CONVICTIONS BASED ON EYE-WITNESS IDENTIFICATION AT TRIAL

  FOLLOWING A PRETRIAL IDENTIFICATION BY PHOTOGRAPH WILL BE SET

  ASIDE ON THAT GROUND ONLY IF THE PHOTOGRAPHIC IDENTIFICATION

  PROCEDURE WAS SO IMPERMISSIBLY SUGGESTIVE AS TO GIVE RISE TO A

  VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION." 

  SIMMONS V. UNITED STATES, 390 U.S. 377, 384 (1968). 

AGAIN WE FOUND THE IDENTIFICATION PROCEDURE TO BE SUPPORTABLE, RELYING
BOTH ON THE NEED FOR PROMPT UTILIZATION OF OTHER INVESTIGATIVE LEADS
AND ON THE LIKELIHOOD THAT THE PHOTOGRAPHIC IDENTIFICATIONS WERE
RELIABLE, THE WITNESSES HAVING VIEWED THE BANK ROBBERS FOR PERIODS OF
UP TO FIVE MINUTES UNDER GOOD LIGHTING CONDITIONS AT THE TIME OF THE
ROBBERY. 

THE ONLY CASE TO DATE IN WHICH THIS COURT HAS FOUND IDENTIFICATION
PROCEDURES TO BE VIOLATIVE OF DUE PROCESS IS FOSTER V. CALIFORNIA, 394
U.S. 440, 442 (1969).  THERE, THE WITNESS FAILED TO IDENTIFY FOSTER THE
FIRST TIME HE CONFRONTED HIM, DESPITE A SUGGESTIVE LINEUP.  THE POLICE
THEN ARRANGED A SHOWUP, AT WHICH THE WITNESS COULD MAKE ONLY A
TENTATIVE IDENTIFICATION.  ULTIMATELY, AT YET ANOTHER CONFRONTATION,
THIS TIME A LINEUP, THE WITNESS WAS ABLE TO MUSTER A DEFINITE
IDENTIFICATION.  WE HELD ALL OF THE IDENTIFICATIONS INADMISSIBLE,
OBSERVING THAT THE IDENTIFICATIONS WERE "ALL BUT INEVITABLE" UNDER THE
CIRCUMSTANCES.  ID., AT 443. 

IN THE MOST RECENT CASE OF COLEMAN V. ALABAMA, 399 U.S. 1 (1970), WE
HELD ADMISSIBLE AN IN-COURT IDENTIFICATION BY A WITNESS WHO HAD A
FLEETING BUT "REAL GOOD LOOK" AT HIS ASSAILANT IN THE HEADLIGHTS OF A
PASSING CAR.  THE WITNESS TESTIFIED AT A PRETRIAL SUPPRESSION HEARING
THAT HE IDENTIFIED ONE OF THE PETITIONERS AMONG THE PARTICIPANTS IN THE
LINEUP BEFORE THE POLICE PLACED THE PARTICIPANTS IN A FORMAL LINE.  MR.
JUSTICE BRENNAN FOR FOUR MEMBERS OF THE COURT STATED THAT THIS EVIDENCE
COULD SUPPORT A FINDING THAT THE IN-COURT IDENTIFICATION WAS "ENTIRELY
BASED UPON OBSERVATIONS AT THE TIME OF THE ASSAULT AND NOT AT ALL
INDUCED BY THE CONDUCT OF THE LINEUP."  ID., AT 5-6. 

SOME GENERAL GUIDELINES EMERGE FROM THESE CASES AS TO THE
RELATIONSHIP BETWEEN SUGGESTIVENESS AND MISIDENTIFICATION.  IT IS,
FIRST OF ALL, APPARENT THAT THE PRIMARY EVIL TO BE AVOIDED IS "A VERY
SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION."  SIMMONS V.
UNITED STATES, 390 U.S.,AT 384.  WHILE THE PHRASE WAS COINED AS A
STANDARD FOR DETERMINING WHETHER AN IN-COURT IDENTIFICATION WOULD BE
ADMISSIBLE IN THE WAKE OF A SUGGESTIVE OUT-OF-COURT IDENTIFICATION,
WITH THE DELETION OF "IRREPARABLE" IT SERVES EQUALLY WELL AS A STANDARD
FOR THE ADMISSIBILITY OF TESTIMONY CONCERNING THE OUT-OF-COURT
IDENTIFICATION ITSELF.  /5/  IT IS THE LIKELIHOOD OF MISIDENTIFICATION
WHICH VIOLATES A DEFENDANT'S RIGHT TO DUE PROCESS, AND IT IS THIS WHICH
WAS THE BASIS OF THE EXCLUSION OF EVIDENCE IN FOSTER.  SUGGESTIVE
CONFRONTATIONS ARE DISAPPROVED BECAUSE THEY INCREASE THE LIKELIHOOD OF
MISIDENTIFICATION, AND UNNECESSARILY SUGGESTIVE ONES ARE CONDEMNED FOR
THE FURTHER REASON THAT THE INCREASED CHANCE OF MISIDENTIFICATION IS
GRATUITOUS.  BUT AS STOVALL MAKES CLEAR, THE ADMISSION OF EVIDENCE OF A
SHOWUP WITHOUT MORE DOES NOT VIOLATE DUE PROCESS.     WHAT IS LESS
CLEAR FROM OUR CASES IS WHETHER, AS INITIMATED BY THE DISTRICT COURT,
UNNECESSARY SUGGESTIVENESS ALONE REQUIRES THE EXCLUSION OF EVIDENCE. 
/6/  WHILE WE ARE INCLINED TO AGREE WITH THE COURTS BELOW THAT THE
POLICE DID NOT EXHAUST ALL POSSIBILITIES IN SEEKING PERSONS PHYSICALLY
COMPARABLE TO RESPONDENT, WE DO NOT THINK THAT THE EVIDENCE MUST
THEREFORE BE EXCLUDED.  THE PURPOSE OF A STRICT RULE BARRING EVIDENCE
OF UNNECESSARILY SUGGESTIVE CONFRONTATIONS WOULD BE TO DETER THE POLICE
FROM USING A LESS RELIABLE PROCEDURE WHERE A MORE RELIABLE ONE MAY BE
AVAILABLE, AND WOULD NOT BE BASED ON THE ASSUMPTION THAT IN EVERY
INSTANCE THE ADMISSION OF EVIDENCE OF SUCH A CONFRONTATION OFFENDS DUE
PROCESS.  CLEMONS V. UNITED STATES, 133 U.S.APP.D.C. 27, 48, 408 F.2D
1230, 1251 (1968) (LEVENTHAL, J., CONCURRING); CF. GILBERT V.
CALIFORNIA, 388 U.S. 263, 273 (1967); MAPP V. OHIO, 367 U.S. 643
(1961).  SUCH A RULE WOULD HAVE NO PLACE IN THE PRESENT CASE, SINCE
BOTH THE CONFRONTATION AND THE TRIAL PRECEDED STOVALL V. DENNO, SUPRA,
WHEN WE FIRST GAVE NOTICE THAT THE SUGGESTIVENESS OF CONFRONTATION
PROCEDURES WAS ANYTHING OTHER THAN A MATTER TO BE ARGUED TO THE JURY. 

WE TURN, THEN, TO THE CENTRAL QUESTION, WHETHER UNDER THE "TOTALITY
OF THE CIRCUMSTANCES" THE IDENTIFICATION WAS RELIABLE EVEN THOUGH THE
CONFRONTATION PROCEDURE WAS SUGGESTIVE.  AS INDICATED BY OUR CASES, THE
FACTORS TO BE CONSIDERED IN EVALUATING THE LIKELIHOOD OF
MISIDENTIFICATION INCLUDE THE OPPORTUNITY OF THE WITNESS TO VIEW THE
CRIMINAL AT THE TIME OF THE CRIME, THE WITNESS' DEGREE OF ATTENTION,
THE ACCURACY OF THE WITNESS' PRIOR DESCRIPTION OF THE CRIMINAL, THE
LEVEL OF CERTAINTY DEMONSTRATED BY THE WITNESS AT THE CONFRONTATION,
AND THE LENGTH OF TIME BETWEEN THE CRIME AND THE CONFRONTATION. 
APPLYING THESE FACTORS, WE DISAGREE WITH THE DISTRICT COURT'S
CONCLUSION. 

IN PART, AS DISCUSSED ABOVE, WE THINK THE DISTRICT COURT FOCUSED
UNDULY ON THE RELATIVE RELIABILITY OF A LINEUP AS OPPOSED TO A SHOWUP,
THE ISSUE ON WHICH EXPERT TESTIMONY WAS TAKEN AT THE EVIDENTIARY
HEARING.  IT MUST BE KEPT IN MIND ALSO THAT THE TRIAL WAS CONDUCTED
BEFORE STOVALL AND THAT THEREFORE THE INCENTIVE WAS LACKING FOR THE
PARTIES TO MAKE A RECORD AT TRIAL OF FACTS CORROBORATING OR UNDERMINING
THE IDENTIFICATION.  THE TESTIMONY WAS ADDRESSED TO THE JURY, AND THE
JURY APPARENTLY FOUND THE IDENTIFICATION RELIABLE.  SOME OF THE STATE'S
TESTIMONY AT THE FEDERAL EVIDENTIARY HEARING MAY WELL HAVE BEEN SELF
SERVING IN THAT IT TOO NEATLY FIT THE CASE LAW, BUT IT SURELY DOES
NOTHING TO UNDERMINE THE STATE RECORD, WHICH ITSELF FULLY CORROBORATED
THE IDENTIFICATION. 

WE FIND THAT THE DISTRICT COURT'S CONCLUSIONS ON THE CRITICAL FACTS
ARE UNSUPPORTED BY THE RECORD AND CLEARLY ERRONEOUS.  THE VICTIM SPEND
A CONSIDERABLE PERIOD OF TIME WITH HER ASSAILANT, UP TO HALF AN HOUR. 
SHE WAS WITH HIM UNDER ADEQUATE LIGHT IN HER HOUSE AND UNDER A FULL
MOON OUTDOORS, AND AT LEAST TWICE, ONCE IN THE HOUSE AND LATER IN THE
WOODS, FACED HIM DIRECTLY AND INTIMATELY.  SHE WAS NO CASUAL OBSERVER,
BUT RATHER THE VICTIM OF ONE OF THE MOST PERSONALLY HUMILATING OF ALL
CRIMES.  /7/  HER DESCRIPTION TO THE POLICE, WHICH INCLUDED THE
ASSAILANT'S APPROXIMATE AGE, HEIGHT, WEIGHT, COMPLEXION, SKIN TEXTURE,
BUILD, AND VOICE, MIGHT NOT HAVE SATISFIED PROUST BUT WAS MORE THAN
ORDINARILY THOROUGH.  SHE HAD "NO DOUBT" THAT RESPONDENT WAS THE PERSON
WHO RAPED HER.  IN THE NATURE OF THE CRIME, THERE ARE RARELY WITNESSES
TO A RAPE OTHER THAN THE VICTIM, WHO OFTEN HAS A LIMITED OPPORTUNITY OF
OBSERVATION.  /8/  THE VICTIM HERE, A PRACTICAL NURSE BY PROFESSION,
HAD AN UNUSUAL OPPORTUNITY TO OBSERVE AND IDENTIFY HER ASSAILANT.  SHE
TESTIFIED AT THE HABEAS CORPUS HEARING THAT THERE WAS SOMETHING ABOUT
HIS FACE "I DON'T THINK I COULD EVER FORGET."  APP. 127. 

THERE WAS, TO BE SURE, A LAPSE OF SEVEN MONTHS BETWEEN THE RAPE AND
THE CONFRONTATION.  THIS WOULD BE A SERIOUSLY NEGATIVE FACTOR IN MOST
CASES.  HERE, HOWEVER, THE TESTIMONY IS UNDISPUTED THAT THE VICTIM MADE
NO PREVIOUS IDENTIFICATION AT ANY OF THE SHOWUPS, LINEUPS, OR
PHOTOGRAPHIC SHOWINGS.  HER RECORD FOR RELIABILITY WAS THUS A GOOD ONE,
AS SHE HAD PREVIOUSLY RESISTED WHATEVER SUGGESTIVENESS INHERES IN A
SHOWUP.  WEIGHING ALL THE FACTORS, WE FIND NO SUBSTANTIAL LIKELIHOOD OF
MISIDENTIFICATION.  THE EVIDENCE WAS PROPERLY ALLOWED TO GO TO THE
JURY.  /9/

  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

/1/  THE LEGISLATIVE HISTORY ADDS LITTLE.  THE SENATE REPORT STATES,
CRYPTICALLY, THAT "(THIS SUBSECTION IS INTENDED TO GIVE A CONCLUSIVE
PRESUMPTION ONLY TO ACTUAL ADJUDICATIONS OF FEDERAL RIGHTS, BY THE
SUPREME COURT, AND NOT TO GIVE SUCH A PRESUMPTION TO MERE DENIALS OF
WRITS OF CERTIORARI."  S. REP. NO. 1797, 89TH CONG., 2D SESS., 2
(1966).  WE CONCLUDE FROM THIS ONLY THAT CONGRESS DID NOT EXPRESSLY
ADDRESS ITSELF TO THE EFFECT OF AN AFFIRMANCE BY AN EQUALLY DIVIDED
COURT.  NOR IS THIS SURPRISING IN VIEW OF THE RARITY OF SUCH DIVIDED
AFFIRMANCES IN CRIMINAL CASES. 

/2/  WE HAVE BEEN AIDED, AND ARE CONFIRMED IN THIS VIEW, BY THE
THOUGHTFUL OPINION OF JUDGE MANSFIELD IN UNITED STATES EX REL. RADICH
V. CRIMINAL CT. OF CITY OF NEW YORK, 459 F.2D 745 (CA2 1972), PET. FOR
CERT. PENDING SUB NOM. ROSS V. RADICH, NO. 71-1510. 

/3/  THE DISSENT WOULD HAVE US DECLINE TO ADDRESS THE MERITS BECAUSE
THE DISTRICT COURT, AFTER AN EVIDENTIARY HEARING, FOUND DUE PROCESS TO
HAVE BEEN VIOLATED, AND THE COURT OF APPEALS-- AFTER REVIEWING THE
ENTIRE RECORD-- FOUND THAT "THE CONCLUSIONS OF FACT OF THE DISTRICT
JUDGE ARE (NOT) CLEARLY ERRONEOUS."  448 F.2D 91, 95.  IT IS SAID THAT
WE SHOULD NOT DEPART FROM "OUR LONG-ESTABLISHED PRACTICE NOT TO REVERSE
FINDINGS OF FACT CONCURRED IN BY TWO LOWER COURTS UNLESS SHOWN TO BE
CLEARLY ERRONEOUS."  POST, AT 202.  THIS RULE OF PRACTICE, UNDER WHICH
THE COURT DOES NOT LIGHTLY OVERTURN THE CONCURRENT FINDINGS OF FACT OF
TWO LOWER FEDERAL COURTS, IS A SALUTARY ONE TO BE FOLLOWED WHERE
APPLICABLE.  WE THINK IT INAPPLICABLE HERE WHERE THE DISPUTE BETWEEN
THE PARTIES IS NOT SO MUCH OVER THE ELEMENTAL FACTS AS OVER THE
CONSTITUTIONAL SIGNIFICANCE TO BE ATTACHED TO THEM.  MOREOVER, THIS IS
A HABEAS CORPUS CASE IN WHICH THE FACTS ARE CONTAINED PRIMARILY IN THE
STATE COURT RECORD (EQUALLY AVAILABLE TO US AS TO THE FEDERAL COURTS
BELOW) AND WERE THE EVIDENTIARY HEARING IN THE DISTRICT COURT PURPORTED
TO BE "CONFINED" TO TWO SPECIFIC ISSUES WHICH WE DEEM NOT CONTROLLING. 
OF THE NINE CASES CITED IN THE DISSENTING OPINION IN SUPPORT OF THE
RULE OF PRACTICE URGED UPON US, EIGHT OF THEM INVOLVED CIVIL LITIGATION
IN THE FEDERAL SYSTEM.  ONLY ONE OF THE CASES CITED, BOULDEN V. HOLMAN,
394 U.S. 478 (1969), INVOLVED A HABEAS CORPUS REVIEW AND THE COURT
SIMPLY HELD-- ON THE BASIS OF "AN INDEPENDENT STUDY OF THE ENTIRE
RECORD"-- THAT THE CONCLUSION REACHED BY THE DISTRICT COURT AND THE
COURT OF APPEALS "WAS JUSTIFIED."  ID., AT 480, 481. 

/4/  AT TRIAL, ONE OF THE POLICE OFFICERS PRESENT AT THE
IDENTIFICATION TESTIFIED EXPLICITLY THAT THE WORDS WERE SPOKEN AFTER
THE IDENTIFICATION.  THE VICTIM TESTIFIED: 

"Q.  WHAT PHYSICAL CHARACTERISTICS, IF ANY, CAUSED YOU TO BE ABLE TO
IDENTIFY HIM? 

"A.  FIRST OF ALL,-- UH-- HIS SIZE,-- NEXT I COULD REMEMBER HIS
VOICE. 

"Q. WHAT ABOUT HIS VOICE?  DESCRIBE HIS VOICE TO THE JURY. 

"A.  WELL, HE HAS THE VOICE OF AN IMMATURE YOUTH-- I CALL IT AN
IMMATURE YOUTH.  I HAVE TEEN-AGE BOYS.  AND THAT WAS THE FIRST THING
THAT MADE ME THINK IT WAS THE BOY."  TR. OF REC. IN NO. 237, O.T. 1967,
P. 17.  THE COLLOQUY CONTINUED, WITH THE VICTIM DESCRIBING THE VOICE
AND OTHER PHYSICAL CHARACTERISTICS.  AT THE HABEAS CORPUS HEARING, THE
VICTIM AND ALL OF THE POLICE WITNESSES TESTIFIED THAT A VISUAL
IDENTIFICATION PRECEDED THE VOICE IDENTIFICATION.  APP. 80, 123, 134. 

/5/  SEE CLEMONS V. UNITED STATES, 133 U.S.APP.D.C.27, 47, 408 F.2D
1230, 1250 (1968) (MCGOWAN, J., FOR THE COURT EN BANC), CERT. DENIED,
394 U.S. 964 (1969).  IN THE PRESENT CASE, THERE HAS BEEN CONTROVERSY,
IN OUR VIEW IRRELEVANT, OVER WHETHER, AS SHE TESTIFIED AT THE HABEAS
CORPUS HEARING, THE VICTIM ACTUALLY MADE AN IN-COURT IDENTIFICATION. 
WHILE WE THINK IT EVIDENT FROM THE MANY TESTIMONIAL LINKS BETWEEN HER
OUT-OF-COURT IDENTIFICATION AND "THE DEFENDANT" BEFORE HER IN COURT
THAT THE ANSWER IS "YES," WE RECOGNIZE THAT IF THE TESTIMONY CONCERNING
THE OUT-OF-COURT IDENTIFICATION WAS INADMISSIBLE, THE CONVICTION MUST
BE OVERTURNED. 

/6/  THE DISTRICT COURT STATED: 

"IN THIS CASE IT APPEARS TO THE COURT THAT A LINE-UP, WHICH BOTH
SIDES ADMIT IS GENERALLY MORE RELIABLE THAT A SHOW-UP, COULD HAVE BEEN
ARRANGED.  THE FACT THAT THIS WAS NOT DONE TENDED NEEDLESSLY TO
DECREASE THE FAIRNESS OF THE IDENTIFICATION PROCESS TO WHICH PETITIONER
WAS SUBJECTED."  APP. 42 

/7/  SEE UNITED STATES EX REL. PHIPPS V. FOLLETTE, 428 F.2D 912, 915
916 (CA2) (FRIENDLY, J.), CERT. DENIED, 400 U.S. 908 (1970). 

/8/  RESPONDENT ATTACHES SOME WEIGHT TO THE FAILURE OF THE VICTIM'S
DAUGHTER TO IDENTIFY HIM.  APART FROM THE FACT THAT THIS DOES NOT BEAR
DIRECTLY ON THE RELIABILITY OF HER MOTHER'S IDENTIFICATION, THE GIRL
WAS ONLY 12 YEARS OLD AND HAD, AS BEST AS WE CAN TELL, ONLY A VERY
BRIEF VIEW OF THE ASSAILANT FROM ACROSS THE ROOM. 

/9/  RESPONDENT'S HABEAS CORPUS PETITION RAISED A NUMBER OF OTHER
CLAIMS, INCLUDING ONE CHALLENGING THE LEGALITY OF HIS DENTENTION AT THE
TIME HE WAS VIEWED BY THE VICTIM.  THE COURTS BELOW DID NOT ADDRESS
THESE CLAIMS, NOR DO WE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
STEWART CONCUR, CONCURRING IN PART AND DISSENTING IN PART. 

WE GRANTED CERTIORARI IN THIS CASE TO DETERMINE WHETHER OUR
AFFIRMANCE BY AN EQUALLY DIVIDED COURT OF RESPONDENT'S STATE CONVICTION
CONSTITUTES AN ACTUAL ADJUDICATION WITHIN THE MEANING OF 28 U.S.C.
2244(C), AND THUS BARS SUBSEQUENT CONSIDERATION OF THE SAME ISSUES ON
FEDERAL HABEAS CORPUS.  THE COURT HOLDS TODAY THAT SUCH AN AFFIRMANCE
DOES NOT BAR FURTHER FEDERAL RELIEF, AND I FULLY CONCUR IN THAT ASPECT
OF THE COURT'S OPINION.  REGRETABLY, HOWEVER, THE COURT ALSO ADDRESSES
THE MERITS AND DELVES INTO THE FACTUAL BACKGROUND OF THE CASE TO
REVERSE THE DISTRICT COURT'S FINDING, UPHELD BY THE COURT OF APPEALS,
THAT UNDER THE "TOTALITY OF THE CIRCUMSTANCES," THE PRE-STOVALL SHOWUP
WAS SO IMPERMISSIBLY SUGGESTIVE AS TO GIVE RISE TO A SUBSTANTIAL
LIKELIHOOD OF MISIDENTIFICATION.  THIS IS AN UNJUSTIFIED DEPARTURE FROM
OUR LONG-ESTABLISHED PRACTICE NOT TO REVERSE FINDINGS OF FACT CONCURRED
IN BY TWO LOWER COURTS UNLESS SHOWN TO BE CLEARLY ERRONEOUS.  SEE,
E.G., BLAU V. LEHMAN, 368 U.S. 403, 408-409 (1962); FAULKNER V. GIBBS,
338 U.S. 267, 268 (1949); UNITED STATES V. DICKINSON, 331 U.S. 745, 751
(1947); UNITED STATES V. COMMERCIAL CREDIT CO., 286 U.S. 63, 67 (1932);
UNITED STATES V. CHEMICAL FOUNDATION, 272 U.S. 1, 14 (1926); BAKER V.
SCHOFIELD, 243 U.S. 114, 118 (1917); TOWSON V. MOORE, 173 U.S. 17, 24
(1899); CF. BOULDEN V. HOLMAN, 394 U.S. 478, 480-481 (1969). 

AS THE COURT RECOGNIZES, A PRE-STOVALL IDENTIFICATION OBTAINED AS A
RESULT OF AN UNNECESSARILY SUGGESTIVE SHOWUP MAY STILL BE INTRODUCED IN
EVIDENCE IF, UNDER THE "TOTALITY OF THE CIRCUMSTANCES" THE
IDENTIFICATION RETAINS STRONG INDICIA OF RELIABILITY.  AFTER AN
EXTENSIVE HEARING AND CAREFUL REVIEW OF THE STATE COURT RECORD,
HOWEVER, THE DISTRICT COURT FOUND THAT, UNDER THE CIRCUMSTANCES OF THIS
CASE, THERE EXISTED AN INTOLERABLE RISK OF MISIDENTIFICATION. 
MOREOVER, IN MAKING THIS DETERMINATION, THE COURT SPECIFICALLY FOUND
THAT "THE COMPLAINING WITNESS DID NOT GET AN OPPORTUNITY TO OBTAIN A
GOOD VIEW OF THE SUSPECT DURING THE COMMISSION OF THE CRIME," "THE SHOW
UP CONFRONTATION WAS NOT CONDUCTED NEAR THE TIME OF THE ALLEGED CRIME,
BUT, RATHER, SOME SEVEN MONTHS AFTER ITS COMMISSION," AND THE
COMPLAINING WITNESS WAS UNABLE TO GIVE "A GOOD PHYSICAL DESCRIPTION OF
HER ASSAILANT" TO THE POLICE.  APP. 41-42.  THE COURT OF APPEALS, WHICH
CONDUCTED ITS OWN REVIEW OF THE RECORD, UPHELD THE DISTRICT COURT'S
FINDINGS IN THEIR ENTIRETY.  448 F.2D 91, 95 (CA6 1971). 

ALTHOUGH THIS CASE WOULD SEEM TO FALL SQUARELY WITHIN THE BOUNDS OF
THE "TWO-COURT" RULE, THE COURT SEEMS TO SUGGEST THAT THE RULE IS
"INAPPLICABLE HERE" BECAUSE "THIS IS A HABEAS CORPUS CASE IN WHICH THE
FACTS ARE CONTAINED PRIMARILY IN THE STATE COURT RECORD (EQUALLY
AVAILABLE TO US AS TO THE FEDERAL COURTS BELOW) . . . " ANTE, AT 193 N.
3.  THE "TWO-COURT" RULE, HOWEVER, RESTS UPON MORE THAN MERE DEFERENCE
TO THE TRIER OF FACT WHO HAS A FIRSTHAND OPPORTUNITY TO OBSERVE THE
TESTIMONY AND TO GAUGE THE CREDIBILITY OF WITNESSES.  FOR THE RULE ALSO
SERVES AS AN INDISPENSABLE JUDICIAL "TIME-SAVER," MAKING IT UNNECESSARY
FOR THIS COURT TO WASTE SCARCE TIME AND RESOURCES ON MINOR FACTUAL
QUESTIONS WHICH HAVE ALREADY BEEN ACCORDED CONSIDERATION BY TWO FEDERAL
COURTS AND WHOSE RESOLUTION IS WITHOUT SIGNIFICANCE EXCEPT TO THE
PARTIES IMMEDIATELY INVOLVED.  THUS, THE "TWO-COURT" RULE MUST
LOGICALLY APPLY EVEN WHERE, AS HERE, THE LOWER COURTS' FINDINGS OF FACT
ARE BASED PRIMARILY UPON THE STATE COURT RECORD. 

THE COURT ARGUES FURTHER, HOWEVER, THAT THE RULE IS IRRELEVANT HERE
BECAUSE, IN ITS VIEW, "THE DISPUTE BETWEEN THE PARTIES IS NOT SO MUCH
OVER THE ELEMENTAL FACTS AS OVER THE CONSTITUTIONAL SIGNIFICANCE TO BE
ATTACHED TO THEM."  ANTE, AT 193 N. 3.  I CANNOT AGREE.  EVEN A CURSORY
EXAMINATION OF THE COURT'S OPINION REVEALS THAT ITS CONCERN IS NOT
LIMITED SOLELY TO THE PROPER APPLICATION OF LEGAL PRINCIPLES BUT,
RATHER, EXTENDS TO AN ESSENTIALLY DE NOVO INQUIRY INTO SUCH "ELEMENTAL
FACTS" AS THE NATURE OF THE VICTIM'S OPPORTUNITY TO OBSERVE THE
ASSAILANT AND THE TYPE OF DESCRIPTION THE VICTIM GAVE THE POLICE AT THE
TIME OF THE CRIME.  AND ALTHOUGH WE MIGHT REASONABLY DISAGREE WITH THE
LOWER COURT'S FINDINGS AS TO SUCH MATTERS, THE "TWO-COURT" RULE WISELY
INHIBITS US FROM CAVALIERLY SUBSTITUTING OUR OWN VIEW OF THE FACTS
SIMPLY BECAUSE WE MIGHT ADOPT A DIFFERENT CONSTRUCTION ON THE EVIDENCE
OR RESOLVE THE AMBIGUITIES DIFFERENTLY.  ON THE CONTRARY, THESE
FINDINGS ARE "FINAL HERE IN THE ABSENCE OF VERY EXCEPTIONAL SHOWING OF
ERROR."  COMSTOCK V. GROUP OF INSTITUTIONAL INVESTORS, 335 U.S. 211,
214 (1948).  THE RECORD BEFORE US IS SIMPLY NOT SUSCEPTIBLE OF SUCH A
SHOWING AND, INDEED, THE PETITIONER DOES NOT ARGUE OTHERWISE.  I WOULD
THEREFORE DISMISS THE WRIT OF CERTIORARI AS IMPROVIDENTLY GRANTED
INSOFAR AS IT RELATES TO QUESTION 2 OF THE QUESTIONS PRESENTED. 

BART C. DURHAM III, ASSISTANT ATTORNEY GENERAL OF TENNESSEE, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WAS DAVID M. PACK,
ATTORNEY GENERAL. 

MICHAEL MELTSNER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE JACK GREENBERG, ANTHONY G. AMSTERDAM, AVON N. WILLIAMS, JR.,
AND Z. ALEXANDER LOOBY. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, PRO SE, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND MARIA L. MARCUS,
ASSISTANT ATTORNEY GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL OF
NEW YORK AS AMICUS CURIAE URGING REVERSAL. 

SHIRLEY FINGERHOOD, RICHARD G. GREEN, BURT NEUBORNE, AND MELVIN L.
WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :











CALIFORNIA V. LARUE, 409 U.S. 109 


       CALIFORNIA ET AL. V. LARUE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

       DISTRICT OF CALIFORNIA

        NO. 71-36.  ARGUED OCTOBER 10, 1972-- DECIDED DECEMBER 5,

           1972 


FOLLOWING HEARINGS, THE CALIFORNIA DEPARTMENT OF ALCOHOLIC BEVERAGE
CONTROL ISSUED REGULATIONS PROHIBITING EXPLICITLY SEXUAL LIVE
ENTERTAINMENT AND FILMS IN BARS AND OTHER ESTABLISHMENTS LICENSED TO
DISPENSE LIQUOR BY THE DRINK.  A THREE-JUDGE DISTRICT COURT HELD THE
REGULATIONS INVALID UNDER THE FIRST AND FOURTEENTH AMENDMENTS,
CONCLUDING THAT UNDER STANDARDS LAID DOWN BY THIS COURT SOME OF THE
PROSCRIBED ENTERTAINMENT COULD NOT BE CLASSIFIED AS OBSCENE OR LACKING
A COMMUNICATIVE ELEMENT.  HELD:  IN THE CONTEXT, NOT OF CENSORING
DRAMATIC PERFORMANCES IN A THEATER, BUT OF LICENSING BARS AND
NIGHTCLUBS TO SELL LIQUOR BY THE DRINK, THE STATES HAVE BROAD LATITUDE
UNDER THE TWENTY-FIRST AMENDMENT TO CONTROL THE MANNER AND
CIRCUMSTANCES UNDER WHICH LIQUOR MAY BE DISPENSED, AND HERE THE
CONCLUSION THAT SALE OF LIQUOR BY THE DRINK AND LEWD OR NAKED
ENTERTAINMENT SHOULD NOT TAKE PLACE SIMULTANEOUSLY IN LICENSED
ESTABLISHMENTS WAS NOT IRRATIONAL NOR WAS THE PROPHYLACTIC SOLUTION
UNREASONABLE.  PP. 114-119. 

326 F.SUPP.  348, REVERSED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINTED. 
STEWART, J., FILED A CONCURRING OPINION, POST, P. 119.  DOUGLAS, J.,
POST, P. 120, BRENNAN, J., POST, P. 123, AND MARSHALL, J., POST, P.
123, FILED DISSENTING OPINIONS. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

APPELLANT KIRBY IS THE DIRECTOR OF THE DEPARTMENT OF ALCOHOLIC
BEVERAGE CONTROL, AN ADMINISTRATIVE AGENCY VESTED BY THE CALIFORNIA
CONSTITUTION WITH PRIMARY AUTHORITY FOR THE LICENSING OF THE SALE OF
ALCOHOLIC BEVERAGES IN THAT STATE, AND WITH THE AUTHORITY TO SUSPEND OR
REVOKE ANY SUCH LICENSE IF IT DETERMINES THAT ITS CONTINUATION WOULD BE
CONTRARY TO PUBLIC WELFARE OR MORALS.  ART. XX, SEC. 22, CALIFORNIA
CONSTITUTION.  APPELLEES INCLUDE HOLDERS OF VARIOUS LIQUOR LICENSES
ISSUED BY APPELLANT, AND DANCERS AT PREMISES OPERATED BY SUCH
LICENSEES.  IN 1970 THE DEPARTMENT PROMULGATED RULES REGULATING THE
TYPE OF ENTERTAINMENT THAT MIGHT BE PRESENTED IN BARS AND NIGHTCLUBS
THAT IT LICENSED.  APPELLEES THEN BROUGHT THIS ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA UNDER THE
PROVISIONS OF 28 U.S.C. 1331, 1343, 2201, 2202, AND 42 U.S.C. 1983.  A
THREE-JUDGE COURT WAS CONVENED IN ACCORDANCE WITH 28 U.S.C. 2281 AND
2284, AND THE MAJORITY OF THAT COURT HELD THAT SUBSTANTIAL PORTIONS OF
THE REGULATIONS CONFLICTED WITH THE FIRST AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION.  /1/ 

CONCERNED WITH THE PROGRESSION IN A FEW YEARS' TIME FROM "TOPLESS"
DANCERS TO "BOTTOMLESS" DANCERS AND OTHER FORMS OF "LIVE ENTERTAINMENT"
IN BARS AND NIGHTCLUBS THAT IT LICENSED, THE DEPARTMENT HEARD A NUMBER
OF WITNESSES ON THIS SUBJECT AT PUBLIC HEARINGS HELD PRIOR TO THE
PROMULGATION OF THE RULES.  THE MAJORITY OPINION OF THE DISTRICT COURT
DESCRIBED THE TESTIMONY IN THESE WORDS: 

"LAW ENFORCEMENT AGENCIES, COUNSEL AND OWNERS OF LICENSED PREMISES
AND INVESTIGATORS FOR THE DEPARTMENT TESTIFIED.  THE STORY THAT
UNFOLDED WAS A SORDID ONE, PRIMARILY RELATING TO SEXUAL CONDUCT BETWEEN
DANCERS AND CUSTOMERS . . . " 326 F.SUPP.  348, 352. 

REFERENCES TO THE TRANSCRIPT OF THE HEARINGS SUBMITTED BY THE
DEPARTMENT TO THE DISTRICT COURT INDICATED THAT IN LICENSED
ESTABLISHMENTS WHERE "TOPLESS" AND "BOTTOMLESS" DANCERS, NUDE
ENTERTAINERS, AND FILMS DISPLAYING SEXUAL ACTS WERE SHOWN, NUMEROUS
INCIDENTS OF LEGITIMATE CONCERN TO THE DEPARTMENT HAD OCCURRED. 
CUSTOMERS WERE FOUND ENGAGING IN ORAL COPULATION WITH WOMEN
ENTERTAINERS; CUSTOMERS ENGAGED IN PUBLIC MASTURBATION; AND CUSTOMERS
PLACED ROLLED CURRENCY EITHER DIRECTLY INTO THE VAGINA OF A FEMALE
ENTERTAINER, OR ON THE BAR IN ORDER THAT SHE MIGHT PICK IT UP HERSELF. 
NUMEROUS OTHER FORMS OF CONTACT BETWEEN THE MOUTHS OF MALE CUSTOMERS
AND THE VAGINAL AREAS OF FEMALE PERFORMERS WERE REPORTED TO HAVE
OCCURRED. 

PROSTITUTION OCCURRED IN AND AROUND SUCH LICENSED PREMISES, AND
INVOLVED SOME OF THE FEMALE DANCERS.  INDECENT EXPOSURE TO YOUNG GIRLS,
ATTEMPTED RAPE, RAPE ITSELF, AND ASSAULTS ON POLICE OFFCERS TOOK PLACE
ON OR IMMEDIATELY ADJACENT TO SUCH PREMISES. 

AT THE CONCLUSION OF THE EVIDENCE, THE DEPARTMENT PROMULGATED THE
REGULATIONS HERE CHALLENGED, IMPOSING STANDARDS AS TO THE TYPE OF
ENTERTAINMENT THAT COULD BE PRESENTED IN BARS AND NIGHTCLUBS THAT IT
LICENSED.  THOSE PORTIONS OF THE REGULATIONS FOUND TO BE
UNCONSTITUTIONAL BY THE MAJORITY OF THE DISTRICT COURT PROHIBITED THE
FOLLOWING KINDS OF CONDUCT ON LICENSED PREMISES: 

     (A) THE PERFORMANCE OF ACTS, OR SIMULATED ACTS, OF "SEXUAL

  INTERCOURSE, MASTURBATION, SODOMY, BESTIALITY, ORAL COPULATION,

  FLAGELLATION OR ANY SEXUAL ACTS WHICH ARE PROHIBITED BY LAW"; 

     (B) THE ACTUAL OR SIMULATED "TOUCHING, CARESSING OR FONDLING
ON

  THE BREAST, BUTTOCKS, ANUS OR GENITALS"; 

     (C) THE ACTUAL OR SIMULATED "DISPLAYING OF THE PUBIC HAIR,
ANUS, VULVA OR GENITALS"; 

     (D) THE PERMITTING BY A LICENSEE OF "ANY PERSON TO REMAIN IN
OR

  UPON THE LICENSED PREMISES WHO EXPOSES TO PUBLIC VIEW ANY PORTION

  OF HIS OR HER GENITALS OR ANUS"; AND, BY A COMPANION SECTION, 

     (E) THE DISPLAYING OF FILMS OR PICTURES DEPICTING ACTS A LIVE

  PERFORMANCE OF WHICH WAS PROHIBITED BY THE REGULATIONS QUOTED

  ABOVE.  RULES 143.3 AND 143.4.  /2/ 

SHORTLY BEFORE THE EFFECTIVE DATE OF THE DEPARTMENT'S REGULATIONS,
APPELLEES UNSUCCESSFULLY SOUGHT DISCRETIONARY REVIEW OF THEM IN BOTH
THE STATE COURT OF APPEAL AND THE SUPREME COURT OF CALIFORNIA.  THE
DEPARTMENT THEN JOINED WITH APPELLEES IN REQUESTING THE THREE-JUDGE
DISTRICT COURT TO DECIDE THE MERITS OF APPELLEES' CLAIMS THAT THE
REGULATIONS WERE INVALID UNDER THE FEDERAL CONSTITUTION.  /3/ 

THE DISTRICT COURT MAJORITY UPHELD THE APPELLEES' CLAIM THAT THE
REGULATIONS IN QUESTION UNCONSTITUTIONALLY ABRIDGED THE FREEDOM OF
EXPRESSION GUARANTEED TO THEM BY THE FIRST AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION.  IT REASONED THAT THE STATE REGULATIONS
HAD TO BE JUSTIFIED EITHER AS A PROHIBITION OF OBSCENITY IN ACCORDANCE
WITH THE ROTH LINE OF DECISIONS IN THIS COURT (ROTH V. UNITED STATES,
354 U.S. 476 (1957)), OR ELSE AS A REGULATION OF "CONDUCT" HAVING A
COMMUNICATIVE ELEMENT IN IT UNDER THE STANDARDS LAID DOWN BY THIS COURT
IN UNITED STATES V. O'BRIEN, 391 U.S. 367 (1968).  CONCLUDING THAT THE
REGULATIONS WOULD BAR SOME ENTERTAINMENT THAT COULD NOT BE CALLED
OBSCENE UNDER THE ROTH LINE OF CASES, AND THAT THE GOVERNMENTAL
INTEREST BEING FURTHERED BY THE REGULATIONS DID NOT MEET THE TESTS LAID
DOWN IN O'BRIEN, THE COURT ENJOINED THE ENFORCEMENT OF THE
REGULATIONS.  326 F.SUPP.  348.  WE NOTED PROBABLE JURISDICTION.  404
U.S. 999. 

THE STATE REGULATIONS HERE CHALLENGED COME TO US, NOT IN THE CONTEXT
OF CENSORING A DRAMATIC PERFORMANCE IN A THEATER, BUT RATHER IN A
CONTEXT OF LICENSING BARS AND NIGHTCLUBS TO SELL LIQUOR BY THE DRINK. 
IN SEAGRAM & SONS V. HOSTETTER, 384 U.S. 35, 41 (1966), THIS COURT
SAID: 

 "CONSIDERATION OF ANY STATE LAW REGULATING INTOXICATING

 BEVERAGES MUST BEGIN WITH THE TWENTY-FIRST AMENDMENT, THE SECOND

  SECTION OF WHICH PROVIDES THAT:  'THE TRANSPORTATION OR

  IMPORTATION INTO ANY STATE, TERRITORY, OR POSSESSION OF THE

  UNITED STATES FOR DELIVERY OR USE THEREIN OF INTOXICATING

  LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY

  PROHIBITED.'" 

WHILE THE STATES, VESTED AS THEY ARE WITH GENERAL POLICE POWER,
REQUIRE NO SPECIFIC GRANT OF AUTHORITY IN THE FEDERAL CONSTITUTION TO
LEGISLATE WITH RESPECT TO MATTERS TRADITIONALLY WITHIN THE SCOPE OF THE
POLICE POWER, THE BROAD SWEEP OF THE TWENTY-FIRST AMENDMENT HAS BEEN
RECOGNIZED AS CONFERRING SOMETHING MORE THAN THE NORMAL STATE AUTHORITY
OVER PUBLIC HEALTH, WELFARE, AND MORALS.  IN HOSTETTER V. IDLEWILD
LIQUOR CORP., 377 U.S. 324, 330 (1964), THE COURT REAFFIRMED THAT BY
REASON OF THE TWENTY-FIRST AMENDMENT "A STATE IS TOTALLY UNCONFINED BY
TRADITIONAL COMMERCE CLAUSE LIMITATIONS WHEN IT RESTRICTS THE
IMPORTATION OF INTOXICANTS DESTINED FOR USE, DISTRIBUTION, OR
CONSUMPTION WITHIN ITS BORDERS."  STILL EARLIER, THE COURT STATED IN
STATE BOARD V. YOUNG'S MARKET CO., 299 U.S. 59, 64 (1936): 

"A CLASSIFICATION RECOGNIZED BY THE TWENTY-FIRST AMENDMENT CANNOT BE
DEEMED FORBIDDEN BY THE FOURTEENTH." 

THESE DECISIONS DID NOT GO SO FAR AS TO HOLD OR SAY THAT THE TWENTY
FIRST AMENDMENT SUPERSEDES ALL OTHER PROVISIONS OF THE UNITED STATES
CONSTITUTION IN THE AREA OF LIQUOR REGULATIONS.  IN WISCONSIN V.
CONSTANTINEAU, 400 U.S. 433 (1971), THE FUNDAMENTAL NOTICE AND HEARING
REQUIREMENT OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WAS
HELD APPLICABLE TO WISCONSIN'S STATUTE PROVIDING FOR THE PUBLIC POSTING
OF NAMES OF PERSONS WHO HAD ENGAGED IN EXCESSIVE DRINKING.  BUT THE
CASE FOR UPHOLDING STATE REGULATION IN THE AREA COVERED BY THE TWENTY
FIRST AMENDMENT IS UNDOUBTEDLY STRENGTHENED BY THAT ENACTMENT: 

    "BOTH THE TWENTY-FIRST AMENDMENT AND THE COMMERCE CLAUSE ARE

  PARTS OF THE SAME CONSTITUTION.  LIKE OTHER PROVISIONS OF THE

  CONSTITUTION, EACH MUST BE CONSIDERED IN THE LIGHT OF THE OTHER,

  AND IN THE CONTEXT OF THE ISSUES AND INTERESTS AT STAKE IN ANY

  CONCRETE CASE."  HOSTETTER V. IDLEWILD LIQUOR CORP., SUPRA, AT

  332. 

A COMMON ELEMENT IN THE REGULATIONS STRUCK DOWN BY THE DISTRICT
COURT APPEARS TO BE THE DEPARTMENT'S CONCLUSION THAT THE SALE OF LIQUOR
BY THE DRINK AND LEWD OR NAKED DANCING AND ENTERTAINMENT SHOULD NOT
TAKE PLACE IN BARS AND COCKTAIL LOUNGES FOR WHICH IT HAS LICENSING
RESPONSIBILITY.  BASED ON THE EVIDENCE FROM THE HEARINGS THAT IT CITED
TO THE DISTRICT COURT, AND MINDFUL OF THE PRINCIPLE THAT IN LEGISLATIVE
RULEMAKING THE AGENCY MAY REASON FROM THE PARTICULAR TO THE GENERAL,
ASSIGNED CAR CASES, 274 U.S. 564, 583 (1927), WE DO NOT THINK IT CAN BE
SAID THAT THE DEPARTMENT'S CONCLUSION IN THIS RESPECT WAS AN IRRATIONAL
ONE. 

APPELLEES INSIST THAT THE SAME RESULTS COULD HAVE BEEN ACCOMPLISHED
BY REQUIRING THAT PATRONS ALREADY WELL ON THE WAY TO INTOXICATION BE
EXCLUDED FROM THE LICENSED PREMISES.  BUT WIDE LATITUDE AS TO CHOICE OF
MEANS TO ACCOMPLISH A PERMISSIBLE END MUST BE ACCORDED TO THE STATE
AGENCY THAT IS ITSELF THE REPOSITORY OF THE STATE'S POWER UNDER THE
TWENTY-FIRST AMENDMENT.  SEAGRAM & SONS V. HOSTETTER, SUPRA, AT 48. 
NOTHING IN THE RECORD BEFORE US OR IN COMMON EXPERIENCE COMPELS THE
CONCLUSION THAT EITHER SELF-DISCIPLINE ON THE PART OF THE CUSTOMER OR
SELF-REGULATION ON THE PART OF THE BARTENDER COULD HAVE BEEN RELIED
UPON BY THE DEPARTMENT TO SECURE COMPLIANCE WITH SUCH AN ALTERNATIVE
PLAN OF REGULATION.  THE DEPARTMENT'S CHOICE OF A PROPHYLACTIC SOLUTION
INSTEAD OF ONE THAT WOULD HAVE REQUIRED ITS OWN PERSONNEL TO JUDGE
INDIVIDUAL INSTANCES OF INEBRIATION CANNOT, THEREFORE, BE DEEMED AN
UNREASONABLE ONE UNDER THE HOLDINGS OF OR PRIOR CASES.  WILLIAMSON V.
LEE OPTICAL CO., 348 U.S. 483, 487-488 (1955). 

WE DO NOT DISAGREE WITH THE DISTRICT COURT'S DETERMINATION THAT
THESE REGULATIONS ON THEIR FACE WOULD PROSCRIBE SOME FORMS OF VISUAL
PRESENTATION THAT WOULD NOT BE FOUND OBSCENE UNDER ROTH AND SUBSEQUENT
DECISIONS OF THIS COURT.  SEE, E.G., SUNSHINE BOOK CO. V. SUMMERFIELD,
355 U.S. 372 (1958), REV'G PER CURIAM, 101 U.S.APP.D.C. 358, 249 F.2D
114 (1957).  BUT WE DO NOT BELIEVE THAT THE STATE REGULATORY AUTHORITY
IN THIS CASE WAS LIMITED TO EITHER DEALING WITH THE PROBLEM IT
CONFRONTED WITHIN THE LIMITS OF OUR DECISIONS AS TO OBSCENITY, OR IN
ACCORDANCE WITH THE LIMITS PRESCRIBED FOR DEALING WITH SOME FORMS OF
COMMUNICATIVE CONDUCT IN O'BRIEN, SUPRA. 

OUR PRIOR CASES HAVE HELD THAT BOTH MOTION PICTURES AND THEATRICAL
PRODUCTIONS ARE WITHIN THE PROTECTION OF THE FIRST AND FOURTEENTH
AMENDMENTS.  IN JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495 (1952), IT
WAS HELD THAT MOTION PICUTRES ARE "INCLUDED WITHIN THE FREE SPEECH AND
FREE PRESS GUARANTY OF THE FIRST AND FOURTEENTH AMENDMENTS," THOUGH NOT
"NECESSARILY SUBJECT TO THE PRECISE RULES GOVERNING ANY OTHER
PARTICULAR METHOD OF EXPRESSION."  ID., AT 502-503.  IN SCHACHT V.
UNITED STATES, 398 U.S. 58, 63 (1970), THE COURT SAID WITH RESPECT TO
THEATRICAL PRODUCTIONS: 

"AN ACTOR, LIKE EVERYONE ELSE IN OUR COUNTRY, ENJOYS A
CONSTITUTIONAL RIGHT TO FREEDOM OF SPEECH, INCLUDING THE RIGHT OPENLY
TO CRITICIZE THE GOVERNMENT DURING A DRAMATIC PERFORMANCE.  

BUT AS THE MODE OF EXPRESSION MOVES FROM THE PRINTED PAGE TO THE
COMMISSION OF PUBLIC ACTS THAT MAY THEMSELVES VIOLATE VALID PENAL
STATUTES, THE SCOPE OF PERMISSIBLE STATE REGULATIONS SIGNIFICANTLY
INCREASES.  STATES MAY SOMETIMES PROSCRIBE EXPRESSION THAT IS DIRECTED
TO THE ACCOMPLISHMENT OF AN END THAT THE STATE HAS DECLARED TO BE
ILLEGAL WHEN SUCH EXPRESSION CONSISTS, IN PART, OF "CONDUCT" OR
"ACTION," HUGHES V. SUPERIOR COURT, 339 U.S. 460 (1950); GIBONEY V.
EMPIRE STORAGE CO., 336 U.S. 490 (1949).  /4/  IN O'BRIEN, SUPRA, THE
COURT SUGGESTED THAT THE EXTENT TO WHICH "CONDUCT" WAS PROTECTED BY THE
FIRST AMENDMENT DEPENDED ON THE PRESENCE OF A "COMMUNICATIVE ELEMENT,"
AND STATED: 

     "WE CANNOT ACCEPT THE VIEW THAT AN APPARENTLY LIMITLESS
VARIETY

 OF CONDUCT CAN BE LABELED 'SPEECH' WHENEVER THE PERSON ENGAGING

  IN THE CONDUCT INTENDS THEREBY TO EXPRESS AN IDEA."  391 U.S.,AT

  376. 

THE SUBSTANCE OF THE REGULATIONS STRUCK DOWN PROHIBITS LICENSED BARS
OR NIGHTCLUBS FROM DISPLAYING, EITHER IN THE FORM OF MOVIES OR LIVE
ENTERTAINMENT, "PERFORMANCES" THAT PARTAKE MORE OF GROSS SEXUALITY THAN
OF COMMUNICATION.  WHILE WE AGREE THAT AT LEAST SOME OF THE
PERFORMANCES TO WHICH THESE REGULATIONS ADDRESS THEMSELVES ARE WITHIN
THE LIMITS OF THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION,
THE CRITICAL FACT IS THAT CALIFORNIA HAS NOT FORBIDDEN THESE
PERFORMANCES ACROSS THE BOARD.  IT HAS MERELY PROSCRIBED SUCH
PERFORMANCES IN ESTABLISHMENTS THAT IT LICENSES TO SELL LIQUOR BY THE
DRINK. 

VIEWED IN THIS LIGHT, WE CONCEIVE THE STATE'S AUTHORITY IN THIS AREA
TO BE SOMEWHAT BROADER THAT DID THE DISTRICT COURT.  THIS IS NOT TO SAY
THAT ALL SUCH CONDUCT AND PERFORMANCE ARE WITHOUT THE PROTECTION OF THE
FIRST AND FOURTEENTH AMENDMENTS.  BUT WE WOULD POORLY SERVE BOTH THE
INTERESTS FOR WHICH THE STATE MAY VALIDLY SEEK VINDICATION AND THE
INTERESTS PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS WERE WE TO
INSIST THAT THE SORT OF BACCHANALIAN REVELRIES THAT THE DEPARTMENT
SOUGHT TO PREVENT BY THESE LIQUOR REGULATIONS WERE THE CONSTITUTIONAL
EQUIVALENT OF A PERFORMANCE BY A SCANTILY CLAD BALLET TROUPE IN A
THEATER. 

THE DEPARTMENT'S CONCLUSION, EMBODIED IN THESE REGULATIONS, THAT
CERTAIN SEXUAL PERFORMANCES AND THE DISPENSATION OF LIQUOR BY THE DRINK
OUGHT NOT TO OCCUR AT PREMISES THAT HAVE LICENSES WAS NOT AN IRRATIONAL
ONE.  GIVEN THE ADDED PRESUMPTION IN FAVOR OF THE VALIDITY OF THE STATE
REGULATION IN THIS AREA THAT THE TWENTY-FIRST AMENDMENT REQUIRES, WE
CANNOT HOLD THAT THE REGULATIONS ON THEIR FACE VIOLATE THE FEDERAL
CONSTITUTION.  /5/     THE CONTRARY HOLDING OF THE DISTRICT COURT IS
THEREFORE

            REVERSED. 

/1/  APPELLEES IN THEIR BRIEF HERE SUGGEST THAT THE REGULATIONS MAY
EXCEED THE AUTHORITY CONFERRED UPON THE DEPARTMENT AS A MATTER OF STATE
LAW.  AS THE DISTRICT COURT RECOGNIZED, HOWEVER, SUCH A CLAIM IS NOT
COGNIZABLE IN THE SUIT BROUGHT BY THESE APPELLEES UNDER 42 U.S.C.
1983.  /2/  IN ADDITION TO THE REGULATIONS HELD UNCONSTITUTIONAL BY THE
COURT BELOW, APPELLEES ORIGINALLY CHALLENGED RULE 143.2 PROHIBITING
TOPLESS WAITRESSES, RULE 143.3(2) REQUIRING CERTAIN ENTERTAINERS TO
PERFORM ON A STAGE AT A DISTANCE AWAY FROM CUSTOMERS, AND RULE 143.5
PROHIBITING ANY ENTERTAINMENT THAT VIOLATED LOCAL ORDINANCES.  AT ORAL
ARGUMENT IN THAT COURT THEY WITHDREW THEIR OBJECTIONS TO THESE RULES,
CONCEDING "THAT TOPLESS WAITRESSES ARE NOT WITHIN THE PROTECTION OF THE
FIRST AMENDMENT; THAT LOCAL ORDINANCES MUST BE INDEPENDENTLY CHALLENGED
DEPENDING UPON THEIR CONTENT; AND THAT THE REQUIREMENT THAT CERTAIN
ENTERTAINERS MUST DANCE ON A STAGE IS NOT INVALID."  326 F.SUPP.  348,
350-351. 

/3/  MR. JUSTICE DOUGLAS IN HIS DISSENTING OPINION SUGGESTS THAT THE
DISTRICT COURT SHOULD HAVE DECLINED TO ADJUDICATE THE MERITS OF
APPELLEES' CONTENTION UNTIL THE APPELLANTS HAD GIVEN THE "GENERALIZED
PROVISIONS OF THE RULES . . . PARTICULARIZED MEANING."  SINCE PARTIES
MAY NOT CONFER JURISDICTION EITHER UPON THIS COURT OR THE DISTRICT
COURT BY STIPULATION, THE REQUEST OF BOTH PARTIES IN THIS CASE THAT THE
COURT BELOW ADJUDICATE THE MERITS OF THE CONSTITUTIONAL CLAIM DOES NOT
FORECLOSE OUR INQUIRY INTO THE EXISTENCE OF AN "ACTUAL CONTROVERSY"
WITHIN THE MEANING OF 28 U.S.C. 2201 AND ART. III, SEC. 2, CL. 1, OF
THE CONSTITUTION. 

BY PRETRIAL STIPULATION, THE APPELLEES ADMITTED THEY OFFERED
PERFORMANCES AND DEPICTIONS ON THEIR LICENSED PREMISES THAT WERE
PROSCRIBED BY THE CHALLENGED RULES.  APPELLANTS STIPULATED THEY WOULD
TAKE DISCIPLINARY ACTION AGAINST THE LICENSEES VIOLATING SUCH RULES. 
IN SIMILAR CIRCUMSTANCES, THIS COURT HELD WHERE A STATE COMMISSION HAD
"PLAINLY INDICATED" AN INTENT TO ENFORCE AN ACT THAT WOULD AFFECT THE
RIGHTS OF THE UNITED STATES, THERE WAS A "PRESENT AND CONCRETE"
CONTROVERSY WITHIN THE MEANING OF 28 U.S.C. 2201 AND OF ART. III. 
CALIFORNIA COMM'N V. UNITED STATES, 355 U.S. 534, 539 (1958).  THE
DISTRICT COURT THEREFORE HAD JURISDICTION OF THIS ACTION. 

WHETHER THIS COURT SHOULD DEVELOP A NONJURISDICTIONAL LIMITATION ON
ACTIONS FOR DECLARATORY JUDGMENTS TO INVALIDATE STATUTES ON THEIR FACE
IS AN ISSUE NOT PROPERLY BEFORE US.  CF. ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 341 (1936) (BRANDEIS, J., CONCURRING). 
CERTAINLY A NUMBER OF OUR CASES HAVE PERMITTED ATTACKS ON FIRST
AMENDMENT GROUNDS SIMILAR TO THOSE ADVANCED BY THE APPELLEES, SEE,
E.G., ZWICKLER V. KOOTA, 389 U.S. 241 (1967); KEYISHIAN V. BOARD OF
REGENTS, 385 U.S. 589 (1967); BAGGETT V. BULLITT, 377 U.S. 360 (1964),
AND WE ARE NOT INCLINED TO RECONSIDER THE PROCEDURAL HOLDINGS OF THOSE
CASES IN THE ABSENCE OF A REQUEST BY A PARTY TO DO SO. 

/4/  SIMILARLY, STATES MAY VALIDLY LIMIT THE MANNER IN WHICH THE
FIRST AMENDMENT FREEDOMS ARE EXERCISED, BY FORBIDDING SOUND TRUCKS IN
RESIDENTIAL NEIGHBORHOODS, KOVACS V. COOPER, 336 U.S. 77 (1949), AND
MAY ENFORCE A NONDISCRIMINATORY REQUIREMENT THAT THOSE WHO WOULD PARADE
ON A PUBLIC THOROUGHFARE FIRST OBTAIN A PERMIT.  COX V. NEW HAMPSHIRE,
312 U.S. 569 (1941).  OTHER STATE LIMITATIONS ON THE "TIME, MANNER AND
PLACE" OF THE EXERCISE OF FIRST AMENDMENT RIGHTS HAVE BEEN SUSTAINED. 
SEE, E.G., CAMERON V. JOHNSON, 390 U.S. 611 (1968), AND COX V.
LOUISIANA, 379 U.S. 559 (1965). 

/5/  BECAUSE OF THE POSTURE OF THIS CASE, WE HAVE NECESSARILY DEALT
WITH THE REGULATIONS ON THEIR FACE, AND HAVE FOUND THEM TO BE VALID. 
THE ADMONITION CONTAINED IN THE COURT'S OPINION IN SEAGRAM & SONS V.
HOSTETTER, 384 U.S. 35, 52 (1966), IS EQUALLY IN POINT HERE:  "ALTHOUGH
IT IS POSSIBLE THAT SPECIFIC FUTURE APPLICATIONS OF (THE STATUTE) MAY
ENGENDER CONCRETE PROBLEMS OF CONSTITUTIONAL DIMENSION, IT WILL BE TIME
ENOUGH TO CONSIDER ANY SUCH PROBLEMS WHEN THEY ARISE.  WE DEAL HERE
ONLY WITH THE STATUTE ON ITS FACE.  AND WE HOLD THAT, SO CONSIDERED,
THE LEGISLATION IS CONSTITUTIONALLY VALID." 

MR. JUSTICE STEWART, CONCURRING. 

A STATE HAS BROAD POWER UNDER THE TWENTY-FIRST AMENDMENT TO SPECIFY
THE TIMES, PLACES, AND CIRCUMSTANCES WHERE LIQUOR MAY BE DISPENSED
WITHIN ITS BORDERS.  SEAGRAM & SONS V. HOSTETTER, 384 U.S. 35;
HOSTETTER V. IDLEWILD LIQUOR CORP., 377 U.S. 324, 330; DEPT. OF REVENUE
V. JAMES BEAM CO., 377 U.S. 341, 344, 346; CALIFORNIA V. WASHINGTON,
358 U.S. 64; ZIFFRIN, INC. V. REEVES, 308 U.S. 132; MAHONEY V. JOSEPH
TRINER CORP., 304 U.S. 401; STATE BOARD V. YOUNG'S MARKET CO., 299 U.S.
59.  I SHOULD SUPPOSE, THEREFORE, THAT NOBODY WOULD QUESTION THE POWER
OF CALIFORNIA TO PREVENT THE SALE OF LIQUOR BY THE DRINK IN PLACES
WHERE FOOD IS NOT SERVED, OR WHERE DANCING IS PERMITTED, OR WHERE
GASOLINE IS SOLD.  BUT HERE CALIFORNIA HAS PROVIDED THAT LIQUOR BY THE
DRINK SHALL NOT BE SOLD IN PLACES WHERE CERTAIN GROSSLY SEXUAL
EXHIBITIONS ARE PERFORMED; AND THAT ACTION BY THE STATE, SAY THE
APPELLEES, VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS.  I CANNOT
AGREE. 

EVERY STATE IS PROHIBITED BY THESE SAME AMENDMENTS FROM INVADING THE
FREEDOM OF THE PRESS AND FROM IMPINGING UPON THE FREE EXERCISE OF
RELIGION.  BUT DOES THIS MEAN THAT A STATE CANNOT PROVIDE THAT LIQUOR
SHALL NOT BE SOLD IN BOOKSTORES, OR WITHIN 200 FEET OF A CHURCH?  I
THINK NOT.  FOR THE STATE WOULD NOT THEREBY BE INTERFERING WITH THE
FIRST AMENDMENT ACTIVITIES OF THE CHURCH OR THE FIRST AMENDMENT
BUSINESS OF THE BOOKSTORE.  IT WOULD SIMPLY BE CONTROLLING THE
DISTRIBUTION OF LIQUOR, AS IT HAS EVERY RIGHT TO DO UNDER THE TWENTY
FIRST AMENDMENT.  ON THE SAME PREMISE, I CANNOT SEE HOW THE LIQUOR
REGULATIONS NOW BEFORE US CAN BE HELD, ON THEIR FACE, TO VIOLATE THE
FIRST AND FOURTEENTH AMENDMENTS.  /1/ 

IT IS UPON THIS CONSTITUTIONAL UNDERSTANDING THAT I JOIN THE OPINION
AND JUDGMENT OF THE COURT. 

/1/  THIS IS NOT TO SAY THAT THE TWENTY-FIRST AMENDMENT EMPOWERS A
STATE TO ACT WITH TOTAL IRRATIONALITY OR INVIDIOUS DISCRIMINATION IN
CONTROLLING THE DISTRIBUTION AND DISPENSATION OF LIQUOR WITHIN ITS
BORDERS.  AND IT MOST ASSUREDLY IS NOT TO SAY THAT THE TWENTY-FIRST
AMENDMENT NECESSARILY OVERRIDES IN ITS ALLOTTED AREA ANY OTHER RELEVANT
PROVISION OF THE CONSTITUTION.  SEE WISCONSIN V. CONSTANTINEAU, 400
U.S. 433; HOSTETTER V. IDLEWILD LIQUOR CORP., 377 U.S. 324, 329-334;
DEPT. OF REVENUE V. JAMES BEAM CO., 377 U.S. 341. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS IS AN ACTION FOR A DECLARATORY JUDGMENT, CHALLENGING RULES AND
REGULATIONS OF THE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF
CALIFORNIA.  IT IS A CHALLENGE OF THE CONSTITUTIONALITY OF THE RULES ON
THEIR FACE; NO APPLICATION OF THE RULES HAS IN FACT BEEN MADE TO
APPELLEES BY THE INSTITUTION OF EITHER CIVIL OR CRIMINAL PROCEEDINGS. 
WHILE THE CASE MEETS THE REQUIREMENTS OF "CASE OR CONTROVERSY" WITHIN
THE MEANING OF ART. III OF THE CONSTITUTION AND THEREFORE COMPLIES WITH
AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, THE CASE DOES NOT MARK
THE PRECISE IMPACT OF THESE RULES AGAINST LICENSEES WHO SELL ALCOHOLIC
BEVERAGES IN CALIFORNIA.  THE OPINION OF THE COURT CAN, THEREFORE, ONLY
DEAL WITH THE RULES IN THE ABSTRACT. 

THE LINE WHICH THE COURT DRAWS BETWEEN "EXPRESSION" AND "CONDUCT" IS
GENERALLY ACCURATE; AND IT ALSO ACCURATELY DESCRIBES IN GENERAL THE
REACH OF THE POLICE POWER OF A STATE WHEN "EXPRESSION" AND "CONDUCT"
ARE CLOSELY BRIGADED.  BUT WE STILL DO NOT KNOW HOW BROADLY OR HOW
NARROWLY THESE RULES WILL BE APPLIED. 

IT IS CONCEIVABLE THAT A LICENSEE MIGHT PRODUCE IN A GARDEN SERVED
BY HIM A PLAY-- SHAKESPEAREAN PERHAPS OR ONE IN A MORE MODERN SETTING--
IN WHICH, FOR EXAMPLE, "FONDLING" IN THE SENSE OF THE RULES APPEARS.  I
CANNOT IMAGINE THAT ANY SUCH PERFORMANCE COULD CONSTITUTIONALLY BE
PUNISHED OR RESTRAINED, EVEN THOUGH THE POLICE POWER OF A STATE IS NOW
BUTTRESSED BY THE TWENTY-FIRST AMENDMENT.  /1/  FOR, AS STATED BY THE
COURT, THAT AMENDMENT DID NOT SUPERSEDE ALL OTHER CONSTITUTIONAL
PROVISIONS "IN THE AREA OF LIQUOR REGULATIONS."  CERTAINLY A PLAY WHICH
PASSES MUSTER UNDER THE FIRST AMENDMENT IS NOT MADE ILLEGAL BECAUSE IT
IS PERFORMED IN A BEER GARDEN. 

CHIEF JUSTICE HUGHES STATED THE CONTROLLING PRINCIPLE IN ELECTRIC
BOND & SHARE CO. V. SEC, 303 U.S. 419, 443: 

     "DEFENDANTS ARE NOT ENTITLED TO INVOKE THE FEDERAL DECLARATORY

JUDGMENT ACT IN ORDER TO OBTAIN AN ADVISORY DECREE UPON A

HYPOTHETICAL STATE OF FACTS.  . . . BY THE CROSS BILL, DEFENDANTS

  SEEK A JUDGMENT THAT EACH AND EVERY PROVISION OF THE ACT IS

  UNCONSTITUTIONAL.  IT PRESENTS A VARIETY OF HYPOTHETICAL

  CONTROVERSIES WHICH MAY NEVER BECOME REAL.  WE ARE INVITED TO

  ENTER INTO A SPECULATIVE INQUIRY FOR THE PURPOSE OF CONDEMNING

  STATUTORY PROVISIONS THE EFFECT OF WHICH IN CONCRETE SITUATIONS,

  NOT YET DEVELOPED, CANNOT NOW BE DEFINITELY PERCEIVED.  WE MUST

  DECLINE THAT INVITATION . . . " 

THE SAME THOUGHT WAS EXPRESSED BY CHIEF JUSTICE STONE IN FEDERATION
OF LABOR V. MCADORY, 325 U.S. 450, 470-471.  SOME PROVISIONS OF AN
ALABAMA LAW REGULATING LABOR RELATIONS WERE CHALLENGED AS TOO VAGUE AND
UNCERTAIN TO MEET CONSTITUTIONAL REQUIREMENTS.  THE CHIEF JUSTICE NOTED
THAT STATE COURTS OFTEN CONSTRUE STATE STATUTES SO THAT IN THEIR
APPLICATION THEY ARE NOT OPEN TO CONSTITUTIONAL OBJECTIONS.  ID., AT
471.  HE SAID THAT FOR US TO DECIDE THE CONSTITUTIONAL QUESTION "BY
ANTICIPATING SUCH AN AUTHORITATIVE CONSTRUCTION" WOULD BE EITHER "TO
DECIDE THE QUESTION UNNECESSARILY OR REST OUR DECISION ON THE UNSTABLE
FOUNDATION OF OUR OWN CONSTRUCTION OF THE STATE STATUTE WHICH THE STATE
COURT WOULD NOT BE BOUND TO FOLLOW."  /2/  IBID.  HE ADDED: 

"IN ANY EVENT THE PARTIES ARE FREE TO LITIGATE IN THE STATE COURTS
THE VALIDITY OF THE STATUTE WHEN ACTUALLY APPLIED TO ANY DEFINITE STATE
OF FACTS, WITH THE RIGHT OF APPELLATE REVIEW IN THIS COURT.  IN THE
EXERCISE OF THIS COURT'S DISCRETIONARY POWER TO GRANT OR WITHHOLD THE
DECLARATORY JUDGMENT REMEDY IT IS OF CONTROLLING SIGNIFICANCE THAT IT
IS IN THE PUBLIC INTEREST TO AVOID THE NEEDLESS DETERMINATION OF
CONSTITUTIONAL QUESTIONS AND THE NEEDLESS OBSTRUCTION TO THE DOMESTIC
POLICY OF THE STATES BY FORESTALLING STATE ACTION IN CONSTRUING AND
APPLYING ITS OWN STATUTES."  IBID. 

THOSE PRECEDENTS SUGGEST TO ME THAT IT WOULD HAVE BEEN MORE
PROVIDENT FOR THE DISTRICT COURT TO HAVE DECLINED TO GIVE A FEDERAL
CONSTITUTIONAL RULING, UNTIL AND UNLESS THE GENERALIZED PROVISIONS OF
THE RULES WERE GIVEN PARTICULARIZED MEANING. 

/1/  SECTION 2 OF THE TWENTY-FIRST AMENDMENT READS AS FOLLOWS: 

"THE TRANSPORTATION OR IMPORTATION INTO ANY STATE, TERRITORY, OR
POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE THEREIN OF
INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY
PROHIBITED." 

/2/  EVEN IN CASES ON DIRECT APPEAL FROM A STATE COURT, WHEN THE
DECISION BELOW LEAVES UNRESOLVED QUESTIONS OF STATE LAW OR PROCEDURE
WHICH BEAR ON FEDERAL CONSTITUTIONAL QUESTIONS, WE DISMISS THE APPEAL. 
RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549. 

MR. JUSTICE BRENNAN, DISSENTING. 

I DISSENT.  THE CALIFORNIA REGULATION AT ISSUE HERE CLEARLY APPLIES
TO SOME SPEECH PROTECTED BY THE FIRST AMENDMENT, AS APPLIED TO THE
STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND
ALSO, NO DOUBT, TO SOME SPEECH AND CONDUCT WHICH ARE UNPROTECTED UNDER
OUR PRIOR DECISIONS.  SEE MEMOIRS V. MASSACHUSETTS, 383 U.S. 413
(1966); ROTH V. UNITED STATES, 354 U.S. 476 (1957).  THE STATE POINTS
OUT, HOWEVER, THAT THE REGULATION DOES NOT PROHIBT SPEECH DIRECTLY, BUT
SPEAKS ONLY TO THE CONDITIONS UNDER WHICH A LICENSE TO SELL LIQUOR BY
THE DRINK CAN BE GRANTED AND RETAINED.  BUT, AS MR. JUSTICE MARSHALL
CAREFULLY DEMONSTRATES IN PART II OF HIS DISSENTING OPINION, BY
REQUIRING THE OWNER OF A NIGHTCLUB TO FORGO THE EXERCISE OF CERTAIN
RIGHTS GUARANTEED BY THE FIRST AMENDMENT, THE STATE HAS IMPOSED AN
UNCONSTITUTIONAL CONDITION ON THE GRANT OF A LICENSE.  SEE PERRY V.
SINDERMANN, 408 U.S. 593 (1972); SHERBERT V. VERNER, 374 U.S. 398
(1963); SPEISER V. RANDALL, 357 U.S. 513 (1958).  NOTHING IN THE
LANGUAGE OR HISTORY OF THE TWENTY-FIRST AMENDMENT AUTHORIZES THE STATES
TO USE THEIR LIQUOR LICENSING POWER AS A MEANS FOR THE DELIBERATE
INHIBITION OF PROTECTED, EVEN IF DISTASTEFUL, FORMS OF EXPRESSION.  FOR
THAT REASON, I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

MR. JUSTICE MARSHALL, DISSENTING. 

IN MY OPINION, THE DISTRICT COURT'S JUDGMENT SHOULD BE AFFIRMED. 
THE RECORD IN THIS CASE IS NOT A PRETTY ONE, AND IT IS POSSIBLE THAT
THE STATE COULD CONSTITUTIONALLY PUNISH SOME OF THE ACTIVITIES
DESCRIBED THEREIN UNDER A NARROWLY DRAWN SCHEME.  BUT APPELLEES
CHALLENGE THESE REGULATIONS /1/  ON THEIR FACE, RATHER THAN AS APPLIED
TO A SPECIFIC COURSE OF CONDUCT.  /2/  CF. GOODING V. WILSON, 405 U.S.
518 (1972).  WHEN SO VIEWED, I THINK IT CLEAR THAT THE REGULATIONS ARE
OVERBROAD AND THEREFORE UNCONSTITUTIONAL.  SEE, E.G., DOMBROWSKI V.
PFISTER, 380 U.S. 479, 486 (1965).  /3/  ALTHOUGH THE STATE'S BROAD
POWER TO REGULATE THE DISTRIBUTION OF LIQUOR AND TO ENFORCE HEALTH AND
SAFETY REGULATIONS IS NOT TO BE DOUBTED, THAT POWER MAY NOT BE
EXERCISED IN A MANNER THAT BROADLY STIFLES FIRST AMENDMENT FREEDOMS. 
CF. SHELTON V. TUCKER, 364 U.S. 479, 488 (1960).  RATHER, AS THIS COURT
HAS MADE CLEAR, "(PRECISION OF REGULATION MUST BE THE TOUCHSTONE" WHEN
FIRST AMENDMENT RIGHTS ARE IMPLICATED.  NAACP V. BUTTON, 371 U.S. 415,
438 (1963).  BECAUSE I AM CONVINCED THAT THESE REGULATIONS LACK THE
PRECISION WHICH OUR PRIOR CASES REQUIRE, I MUST RESPECTFULLY DISSENT. 
      I 

IT SHOULD BE CLEAR AT THE OUTSET THAT CALIFORNIA'S REGULATORY SCHEME
DOES NOT CONFORM TO THE STANDARDS WHICH WE HAVE PREVIOUSLY ENUNCIATED
FOR THE CONTROL OF OBSCENITY.  /4/  BEFORE THIS COURT'S DECISION IN
ROTH V. UNITED STATES, 354 U.S. 476 (1957), SOME AMERICAN COURTS
FOLLOWED THE RULE OF REGINA V. HICKLIN, L.R.3Q.B. 360 (1868), TO THE
EFFECT THAT THE OBSCENITY VEL NON OF A PIECE OF WORK COULD BE JUDGED BY
EXAMINING ISOLATED ASPECTS OF IT.  SEE, E.G., UNITED STATES V.
KENNERLEY, 209 F. 119 (1913); COMMONWEALTH V. BUCKLEY, 200 MASS. 346,
86 N.E. 910 (1909).  BUT IN ROTH WE HELD THAT "(THE HICKLIN TEST,
JUDGING OBSCENITY BY THE FEFECT OF ISOLATED PASSAGES UPON THE MOST
SUSCEPTIBLE PERSONS, MIGHT WELL ENCOMPASS MATERIAL LEGITIMATELY
TREATING WITH SEX, AND SO IT MUST BE REJECTED AS UNCONSTITUTIONALLY
RESTRICTIVE OF THE FREEDOMS OF SPEECH AND PRESS."  354 U.S.,AT 489. 
INSTEAD, WE HELD THAT THE MATERIAL MUST BE "TAKEN AS A WHOLE," IBID.,
AND, WHEN SO VIEWED, MUST APPEAL TO A PRURIENT INTEREST IN SEX,
PATENTLY OFFEND COMMUNITY STANDARDS RELATING TO THE DEPICTION OF SEXUAL
MATTERS, AND BE UTTERLY WITHOUT REDEEMING SOCIAL VALUE.  /5/  SEE
MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 418 (1966). 

OBVIOUSLY, THE CALIFORNIA RULES DO NOT CONFORM TO THESE STANDARDS. 
THEY DO NOT REQUIRE THE MATERIAL TO BE JUDGED AS A WHOLE AND DO NOT
SPEAK TO THE NECESSITY OF PROVING PRURIENT INTEREST, OFFENSIVENESS TO
COMMUNITY STANDARDS, OR LACK OF REDEEMING SOCIAL VALUE.  INSTEAD OF THE
CONTEXTUAL TEST APPROVED IN ROTH AND MEMOIRS, THESE REGULATIONS CREATE
A SYSTEM OF PER SE RULES TO BE APPLIED REGARDLESS OF CONTEXT:  CERTAIN
ACTS SIMPLY MAY NOT BE DEPICTED AND CERTAIN PARTS OF THE BODY MAY UNDER
NO CIRCUMSTANCES BE REVEALED.  THE REGULATIONS THUS TREAT ON THE SAME
LEVEL A SERIOUS MOVIE SUCH AS "ULYSSES" AND A CRUDELY MADE "STAG
FILM."  THEY BAN NOT ONLY OBVIOUSLY PORNOGRAPHIC PHOTOGRAPHS, BUT ALSO
GREAT SCULPTURE FROM ANTIQUITY.  /6/ 

ROTH HELD 15 YEARS AGO THAT THE SUPPRESSION OF SERIOUS COMMUNICATION
WAS TOO HIGH A PRICE TO PAY IN ORDER TO VINDICATE THE STATE'S INTEREST
IN CONTROLLING OBSCENITY, AND I SEE NO REASON TO MODIFY THAT JUDGMENT
TODAY.  INDEED, EVEN THE APPELLANTS DO NOT SERIOUSLY CONTEND THAT THESE
REGULATIONS CAN BE JUSTIFIED UNDER THE ROTH-MEMOIRS TEST.  INSTEAD,
APPELLANTS ARGUE THAT CALIFORNIA'S REGULATIONS DO NOT CONCERN THE
CONTROL OF PORNOGRAPHY AT ALL.  THESE RULES, THEY ARGUE, DEAL WITH
CONDUCT RATHER THAN WITH SPEECH AND AS SUCH ARE NOT SUBJECT TO THE
STRICT LIMITATIONS OF THE FIRST AMENDMENT. 

TO SUPPORT THIS PROPOSITION, APPELLANTS RELY PRIMARILY ON UNITED
STATES V. O'BRIEN, 391 U.S. 367 (1968), WHICH UPHELD THE
CONSTITUTIONALITY OF LEGISLATION PUNISHING THE DESTRUCTION OR
MUTILATION OF SELECTIVE SERVICE CERTIFICATES.  O'BRIEN REJECTED THE
NOTION THAT "AN APPARENTLY LIMITLESS VARIETY OF CONDUCT CAN BE LABELED
'SPEECH' WHENEVER THE PERSON ENGAGING IN THE CONDUCT INTENDS THEREBY TO
EXPRESS AN IDEA," AND HELD THAT GOVERNMENT REGULATION OF SPEECH-RELATED
CONDUCT IS PERMISSIBLE "IF IT IS WITHIN THE CONSTITUTIONAL POWER OF THE
GOVERNMENT; IF IT FURTHERS AN IMPORTANT OR SUBSTANTIAL GOVERNMENTAL
INTEREST; IF THE GOVERNMENTAL INTEREST IS UNRELATED TO THE SUPPRESSION
OF FREE EXPRESSION; AND IF THE INCIDENTAL RESTRICTION ON ALLEGED FIRST
AMENDMENT FREEDOMS IS NO GREATER THAN IS ESSENTIAL TO THE FURTHERANCE
OF THAT INTEREST."  ID., AT 376, 377. 

WHILE I DO NOT QUARREL WITH THESE PRINCIPLES AS STATED IN THE
ABSTRACT, THEIR APPLICATION IN THIS CASE STRETCHES THEM BEYOND THE
BREAKING POINT.  /7/  IN O'BRIEN, THE COURT BEGAN ITS DISCUSSION BY
NOTING THAT THE STATUTE IN QUESTION "PLAINLY DOES NOT ABRIDGE FREE
SPEECH ON ITS FACE."  INDEED, EVEN O'BRIEN HIMSELF CONCEDED THAT
FACIALLY THE STATUTE DEALT "WITH CONDUCT HAVING NO CONNECTION WITH
SPEECH."  /8/  ID., AT 375.  HERE, THE SITUATION IS QUITE DIFFERENT.  A
LONG LINE OF OUR CASES MAKES CLEAR THAT MOTION PICTURES, UNLIKE DRAFT
CARD BURNING, ARE A FORM OF EXPRESSION ENTITLED TO PRIMA FACIE FIRST
AMENDMENT PROTECTION.  "IT CANNOT BE DOUBTED THAT MOTION PICTURES ARE A
SIGNIFICANT MEDIUM FOR THE COMMUNICATION OF IDEAS.  THEY MAY AFFECT
PUBLIC ATTITUDES AND BEHAVIOR IN A VARIETY OF WAYS, RANGING FROM DIRECT
ESPOUSAL OF A POLITICAL OR SOCIAL DOCTRINE TO THE SUBTLE SHAPING OF
THOUGHT WHICH CHARACTERIZES ALL ARTISTIC EXPRESSION.  THE IMPORTANCE OF
MOTION PICTURES AS AN ORGAN OF PUBLIC OPINION IS NOT LESSENED BY THE
FACT THAT THEY ARE DESIGNED TO ENTERTAIN AS WELL AS TO INFORM."  JOSEPH
BURSTYN, INC. V. WILSON, 343 U.S. 495, 501 (1952) (FOOTNOTE OMITTED). 
SEE ALSO INTERSTATE CIRCUIT, INC. V. CITY OF DALLAS, 390 U.S. 676
(1968); JACOBELLIS V. OHIO, 378 U.S. 184 (1964); PINKUS V. PITCHESS,
429 F.2D 416 (CA9 1970), AFF'D BY EQUALLY DIVIDED COURT SUB NOM.
CALIFORNIA V. PINKUS, 400 U.S. 922 (1970).  SIMILARLY, LIVE
PERFORMANCES AND DANCE HAVE, IN RECENT YEARS, BEEN AFFORDED BROAD PRIMA
FACIE FIRST AMENDMENT PROTECTION.  SEE, E.G., SCHACHT V. UNITED STATES,
398 U.S. 58 (1970); P.B.I.C., INC. V. BYRNE, 313 F.SUPP.  757 (MASS.
1970), VACATED TO CONSIDER MOOTNESS, 401 U.S. 987 (1971); IN RE
GIANNINI, 69 CAL.2D 563, 446 P.2D 535 (1968), CERT. DENIED SUB NOM.
CALIFORNIA V. GIANNINI, 395 U.S. 910 (1969). 

IF, AS THESE MANY CASES HOLD, MOVIES, PLAYS, AND THE DANCE ENJOY
CONSTITUTIONAL PROTECTION, IT FOLLOWS, INELUCTABLY I THINK, THAT THEIR
COMPONENT PARTS ARE PROTECTED AS WELL.  IT IS SENSELESS TO SAY THAT A
PLAY IS "SPEECH" WITHIN THE MEANING OF THE FIRST AMENDMENT, BUT THAT
THE INDIVIDUAL GESTURES OF THE ACTORS ARE "CONDUCT" WHICH THE STATE MAY
PROHIBIT.  THE STATE MAY NO MORE ALLOW MOVIES WHILE PUNISHING THE
"ACTS" OF WHICH THEY ARE COMPOSED THAN IT MAY ALLOW NEWSPAPERS WHILE
PUNISHING THE "CONDUCT" OF SETTING TYPE. 

OF COURSE, I DO NOT MEAN TO SUGGEST THAT ANYTHING WHICH OCCURS UPON
A STAGE IS AUTOMATICALLY IMMUNE FROM STATE REGULATION.  NO ONE
SERIOUSLY CONTENDS, FOR EXAMPLE, THAT AN ACTUAL MURDER MAY BE LEGALLY
COMMITTED SO LONG AS IT IS CALLED FOR IN THE SCRIPT, OR THAT AN ACTOR
MAY INJECT REAL HEROIN INTO HIS VEINS WHILE EVADING THE DRUG LAWS THAT
APPLYTO EVERYONE ELSE.  BUT ONCE IT IS RECOGNIZED THAT MOVIES AND PLAYS
ENJOY PRIMA FACIE FIRST AMENDMENT PROTECTION, THE STANDARD FOR
REVIEWING STATE REGULATION OF THEIR COMPONENT PARTS SHIFTS
DRAMATICALLY.  FOR WHILE "(MERE LEGISLATIVE PREFERENCES OR BELIEFS
RESPECTING MATTERS OF PUBLIC CONVENIENCE MAY WELL SUPPORT REGULATION
DIRECTED AT OTHER PERSONAL ACTIVITIES, (THEY ARE) INSUFFICIENT TO
JUSTIFY SUCH AS DIMINISHES THE EXERCISE OF RIGHTS SO VITAL" AS FREEDOM
OF SPEECH.  SCHNEIDER V. STATE, 308 U.S. 147, 161 (1939).  RATHER, IN
ORDER TO RESTRICT SPEECH, THE STATE MUST SHOW THAT THE SPEECH IS "USED
IN SUCH CIRCUMSTANCES AND (IS) OF SUCH A NATURE AS TO CREATE A CLEAR
AND PRESENT DANGER THAT (IT) WILL BRING ABOUT THE SUBSTANTIVE EVILS
THAT (THE STATE) HAS A RIGHT TO PREVENT."  SCHENCK V. UNITED STATES,
249 U.S. 47, 52 (1919).  CF. BRANDENBURG V. OHIO, 395 U.S. 444 (1969);
DENNIS V. UNITED STATES, 341 U.S. 494 (1951).  /9/ 

WHEN THE CALIFORNIA REGULATIONS ARE MEASURED AGAINST THIS STRINGENT
STANDARD, THEY PROVE WOEFULLY INADEQUATE.  APPELLANTS DEFEND THE RULES
AS NECESSARY TO PREVENT SEX CRIMES, DRUG ABUSE, PROSTITUTION, AND A
WIDE VARIETY OF OTHER EVILS.  THESE ARE PRECISELY THE SAME INTERESTS
THAT HAVE BEEN ASSERTED TIME AND AGAIN BEFORE THIS COURT AS
JUSTIFICATION FOR LAWS BANNING FRANK DISCUSSION OF SEX AND THAT WE HAVE
CONSISTENTLY REJECTED.  IN FACT, THE EMPIRICAL LINK BETWEEN SEX-RELATED
ENTERTAINMENT AND THE CRIMINAL ACTIVITY POPULARLY ASSOCIATED WITH IT
HAS NEVER BEEN PROVED AND, INDEED, HAS NOW BEEN LARGELY DISCREDITED. 
SEE, E.G., REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY 27
(1970); CAIRNS, PAUL, & WISHNER, SEX CENSORSHIP:  THE ASSUMPTIONS OF
ANTI-OBSCENITY LAWS AND THE EMPIRICAL EVIDENCE, 46 MINN.L.REV.  1009
(1962).  YET EVEN IF ONE WERE TO CONCEDE THAT SUCH A LINK EXISTED, IT
WOULD HARDLY JUSTIFY A BROADSCALE ATTACK ON FIRST AMENDMENT FREEDOMS. 
THE ONLY WAY TO STOP MURDERS AND DRUG ABUSE IS TO PUNISH THEM
DIRECTLY.  BUT THE STATE'S INTEREST IN CONTROLLING MATERIAL DEALING
WITH SEX IS SECONDARY IN NATURE.  /10/  IT CAN CONTROL RAPE AND
PROSTITUTION BY PUNISHING THOSE ACTS, RATHER THAN BY PUNISHING THE
SPEECH THAT IS ONE STEP REMOVED FROM THE FEARED HARM.  /11/  MOREOVER,
BECAUSE FIRST AMENDMENT RIGHTS ARE AT STAKE, THE STATE MUST ADOPT THIS
"LESS RESTRICTIVE ALTERNATIVE" UNLESS IT CAN MAKE A COMPELLING
DEMONSTRATION THAT THE PROTECTED ACTIVITY AND CRIMINAL CONDUCT ARE SO
CLOSELY LINKED THAT ONLY THROUGH REGULATION OF ONE CAN THE OTHER BE
STOPPED.  CF. UNITED STATES V. ROBEL, 389 U.S. 258, 268 (1967).  AS WE
SAID IN STANLEY V. GEORGIA, 394 U.S. 557, 566-567 (1969), "IF THE STATE
IS ONLY CONCERNED ABOUT PRINTED OR FILMED MATERIALS INDUCING ANTISOCIAL
CONDUCT, WE BELIEVE THAT IN THE CONTEXT OF PRIVATE CONSUMPTION OF IDEAS
AND INFORMATION WE SHOULD ADHERE TO THE VIEW THAT '(AMONG FREE MEN, THE
DETERRENTS ORDINARILY TO BE APPLIED TO PREVENT CRIME ARE EDUCATION AND
PUNISHMENT FOR VIOLATIONS OF THE LAW . . . ' WHITNEY V. CALIFORNIA, 274
U.S. 357, 378 (1927) (BRANDEIS, J., CONCURRING) . . . GIVEN THE PRESENT
STATE OF KNOWLEDGE, THE STATE MAY NO MORE PROHIBIT MERE POSSESSION OF
OBSCENE MATTER ON THE GROUND THAT IT MAY LEAD TO ANTISOCIAL CONDUCT
THAN IT MAY PROHIBIT POSSESSION OF CHEMISTRY BOOKS ON THE GROUND THAT
THEY MAY LEAD TO THE MANUFACTURE OF HOMEMADE SPIRITS."  /12/

        II 

IT SHOULD THUS BE EVIDENT THAT, UNDER THE STANDARDS PREVIOUSLY
DEVELOPED BY THIS COURT, THE CALIFORNIA REGULATIONS ARE OVERBROAD:
THEY WOULD SEEM TO SUPPRESS NOT ONLY OBSCENITY OUTSIDE THE SCOPE OF THE
FIRST AMENDMENT, BUT ALSO SPEECH THAT IS CLEARLY PROTECTED.  BUT
CALIFORNIA CONTENDS THAT THESE REGULATIONS DO NOT INVOLVE SUPPRESSION
AT ALL.  THE STATE CLAIMS THAT ITS RULES ARE NOT REGULATIONS OF
OBSCENITY, BUT ARE RATHER MERELY REGULATIONS OF THE SALE AND
CONSUMPTION OF LIQUOR.  APPELLANTS POINT OUT THAT CALIFORNIA DOES NOT
PUNISH ESTABLISHMENTS WHICH PROVIDE THE PROSCRIBED ENTERTAINMENT, BUT
ONLY REQUIRES THAT THEY NOT SERVE ALCOHOLIC BEVERAGES ON THEIR
PREMISES.  APPELLANTS VIGOROUSLY ARGUE THAT SUCH REGULATION FALLS
WITHIN THE STATE'S GENERAL POLICE POWER AS AUGMENTED, WHEN ALCOHOLIC
BEVERAGES ARE INVOLVED, BY THE TWENTY-FIRST AMENDMENT.  /13/ 

I MUST CONFESS THAT I FIND THIS ARGUMENT DIFFICULT TO GRASP.  TO
SOME EXTENT, IT SEEMS PREMISED ON THE NOTION THAT THE TWENTY-FIRST
AMENDMENT AUTHORIZES THE STATES TO REGULATE LIQUOR IN A FASHION WHICH
WOULD OTHERWISE BE CONSTITUTIONALLY IMPERMISSIBLE.  BUT THE AMENDMENT
BY ITS TERMS SPEAKS ONLY TO STATE CONTROL OF THE IMPORTATION OF
ALCOHOL, AND ITS LEGISLATIVE HISTORY MAKES CLEAR THAT IT WAS INTENDED
ONLY TO PERMIT "DRY" STATES TO CONTROL THE FLOW OF LIQUOR ACROSS THEIR
BOUNDARIES DESPITE POTENTIAL COMMERCE CLAUSE OBJECTIONS.  /14/  SEE
GENERALLY SEAGRAM & SONS V. HOSTETTER, 384 U.S. 35 (1966); HOSTETTER V.
IDLEWILD LIQUOR CORP., 377 U.S. 324 (1964).  THERE IS NOT A WORD IN
THAT HISTORY WHICH INDICATES THAT CONGRESS MEANT TO TAMPER IN ANY WAY
WITH FIRST AMENDMENT RIGHTS.  I SUBMIT THAT THE FRAMERS OF THE
AMENDMENT WOULD BE ASTONISHED TO DISCOVER THAT THEY HAD INADVERTENTLY
ENACTED A PRO TANTO REPEALER OF THE REST OF THE CONSTITUTION.  ONLY
LAST TERM, WE HELD THAT THE STATE'S CONCEDED POWER TO LICENSE THE
DISTRIBUTION OF INTOXICATING BEVERAGES DID NOT JUSTIFY USE OF THAT
POWER IN A MANNER THAT CONFLICTED WITH THE EQUAL PROTECTION CLAUSE. 
SEE MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163, 178-179 (1972).  CF.
WISCONSIN V. CONSTANTINEAU, 400 U.S. 433 (1971); HORNSBY V. ALLEN, 326
F.2D 605 (CA5 1964).  I AM AT A LOSS TO UNDERSTAND WHY THE TWENTY-FIRST
AMENDMENT SHOULD BE THOUGHT TO OVERRIDE THE FIRST AMENDMENT BUT NOT THE
FOURTEENTH. 

TO BE SURE, STATE REGULATION OF LIQUOR IS IMPORTANT, AND IT IS
DEEPLY EMBEDDED IN OUR HISTORY.  SEE, E.G., COLONNADE CATERING CORP. V.
UNITED STATES, 397 U.S. 72, 77 (1970).  BUT FIRST AMENDMENT VALUES ARE
IMPORTANT AS WELL.  INDEED, IN THE PAST THEY HAVE BEEN THOUGHT SO
IMPORTANT AS TO PROVIDE AN INDEPENDENT RESTRAINT ON EVERY POWER OF
GOVERNMENT.  "FREEDOM OF PRESS, FREEDOM OF SPEECH, FREEDOM OF RELIGION
ARE IN A PREFERRED POSITION."  MURDOCK V. PENNSYLVANIA, 319 U.S. 105,
115 (1943).  THUS, WHEN THE GOVERNMENT ATTEMPTED TO JUSTIFY A
LIMITATION ON FREEDOM OF ASSOCIATION BY REFERENCE TO THE WAR POWER, WE
CATEGORICALLY REJECTED THE ATTEMPT.  "(THE) CONCEPT OF 'NATIONAL
DEFENSE'" WE HELD, "CANNOT BE DEEMED AN END IN ITSELF, JUSTIFYING ANY
EXERCISE OF LEGISLATIVE POWER DESIGNED TO PROMOTE SUCH A GOAL. 
IMPLICIT IN THE TERM 'NATIONAL DEFENSE' IS THE NOTION OF DEFENDING
THOSE VALUES AND IDEALS WHICH SET THIS NATION APART.  FOR ALMOST TWO
CENTURIES, OUR COUNTRY HAS TAKEN SINGULAR PRIDE IN THE DEMOCRATIC
IDEALS ENSHRINED IN ITS CONSTITUTION, AND THE MOST CHERISHED OF THOSE
IDEALS HAVE FOUND EXPRESSION IN THE FIRST AMENDMENT.  IT WOULD INDEED
BE IRONIC IF, IN THE NAME OF NATIONAL DEFENSE, WE WOULD SANCTION THE
SUBVERSION OF ONE OF THOSE LIBERTIES-- THE FREEDOM OF ASSOCIATION--
WHICH MAKES THE DEFENSE OF THE NATION WORTHWHILE."  UNITED STATES V.
ROBEL, 389 U.S.,AT 264.  CF. NEW YORK TIMES CO. V. UNITED STATES, 403
U.S. 713, 716-717 (1971) (BLACK, J., CONCURRING); HOME BLDG. & LOAN
ASSN. V. BLAISDELL, 290 U.S. 398, 426 (1934).  IF THE FIRST AMENDMENT
LIMITS THE MEANS BY WHICH OUR GOVERNMENT CAN ENSURE ITS VERY SURVIVAL,
THEN SURELY IT MUST LIMIT THE STATE'S POWER TO CONTROL THE SALE OF
ALCOHOLIC BEVERAGES AS WELL.     OF COURSE, THIS ANALYSIS IS RELEVANT
ONLY TO THE EXTENT THAT CALIFORNIA HAS IN FACT ENCROACHED UPON FIRST
AMENDMENT RIGHTS.  APPELLANTS ARGUE THAT NO SUCH ENCROACHMENT HAS
OCCURRED, SINCE APPELLEES ARE FREE TO CONTINUE PROVIDING ANY
ENTERTAINMENT THEY CHOOSE WITHOUT FEAR OF CRIMINAL PENALTY.  APPELLANTS
SUGGEST THAT THIS CASE IS SOMEHOW DIFFERENT BECAUSE ALL THAT IS AT
STAKE IS THE "PRIVILEGE" OF SERVING LIQUOR BY THE DRINK. 

IT SHOULD BE CLEAR, HOWEVER, THAT THE ABSENCE OF CRIMINAL SANCTIONS
IS INSUFFICIENT TO IMMUNIZE STATE REGULATION FROM CONSTITUTIONAL
ATTACK.  ON THE CONTRARY, "THIS IS ONLY THE BEGINNING, NOT THE END, OF
OUR INQUIRY."  SHERBERT V. VERNER, 374 U.S. 398, 403-404 (1963).  FOR
"(IT IS TOO LATE IN THE DAY TO DOUBT THAT THE LIBERTIES OF RELIGION AND
EXPRESSION MAY BE INFRINGED BY THE DENIAL OF OR PLACING OF CONDITIONS
UPON A BENEFIT OR PRIVILEGE."  ID., AT 404.  AS WE POINTED OUT ONLY
LAST TERM, "(FOR AT LEAST A QUARTER-CENTURY, THIS COURT HAS MADE CLEAR
THAT EVEN THOUGH A PERSON HAS NO 'RIGHT' TO A VALUABLE GOVERNMENTAL
BENEFIT AND EVEN THOUGH THE GOVERNMENT MAY DENY HIM THE BENEFIT FOR ANY
NUMBER OF REASONS, THERE ARE SOME REASONS UPON WHICH THE GOVERNMENT MAY
NOT RELY.  IT MAY NOT DENY A BENEFIT TO A PERSON ON A BASIS THAT
INFRINGES HIS CONSTITUTIONALLY PROTECTED INTERESTS-- ESPECIALLY, HIS
INTEREST IN FREEDOM OF SPEECH.  FOR IF THE GOVERNMENT COULD DENY A
BENEFIT TO A PERSON BECAUSE OF HIS CONSTITUTIONALLY PROTECTED SPEECH OR
ASSOCIATIONS, HIS EXERCISE OF THOSE FREEDOMS WOULD IN EFFECT BE
PENALIZED AND INHIBITED."  PERRY V. SINDERMANN, 408 U.S. 593, 597
(1972). 

THUS, UNCONSTITUTIONAL CONDITIONS ON WELFARE BENEFITS, /15/
UNEMPLOYMENT COMPENSATION, /16/  TAX EXEMPTIONS, /17/  PUBLIC
EMPLOYMENT, /18/  BAR ADMISSIONS, /19/  AND MAILING PRIVILEGES /20/
HAVE ALL BEEN INVALIDATED BY THIS COURT.  IN NONE OF THESE CASES WERE
CRIMINAL PENALTIES INVOLVED.  IN ALL OF THEM, CITIZENS WERE LEFT FREE
TO EXERCISE THEIR CONSTITUTIONAL RIGHTS SO LONG AS THEY WERE WILLING TO
GIVE UP A "GRATUITY" THAT THE STATE HAD NO OBLIGATION TO PROVIDE.  YET
IN ALL OF THEM, WE FOUND THAT THE DISCRIMNATORY PROVISION OF A
PRIVILEGE PLACED TOO GREAT A BURDEN ON CONSTITUTIONAL FREEDOMS.  I
THEREFORE HAVE SOME DIFFICULTY IN UNDERSTANDING WHY CALIFORNIA
NIGHTCLUB PROPRIETORS SHOULD BE SINGLED OUT AND INFORMED THAT THEY
ALONE MUST SACRIFICE THEIR CONSTITUTIONAL RIGHTS BEFORE GAINING THE
"PRIVILEGE" TO SERVE LIQUOR. 

OF COURSE, IT IS TRUE THAT THE STATE MAY IN PROPER CIRCUMSTANCES ENACT
A BROAD REGULATORY SCHEME THAT INCIDENTALLY RESTRICTS FIRST AMENDMENT
RIGHTS.  FOR EXAMPLE, IF CALIFORNIA PROHIBITED THE SALE OF ALCOHOL
ALTOGETHER, I DO NOT MEAN TO SUGGEST THAT THE PROPRIETORS OF THEATERS
AND BOOKSTORES WOULD BE CONSTITUTIONALLY ENTITLED TO A SPECIAL
DISPENSATION.  BUT IN THAT EVENT, THE CLASSIFICATION WOULD NOT BE
SPEECH RELATED AND, HENCE, COULD NOT BE RATIONALLY PERCEIVED AS
PENALIZING SPEECH.  CLASSIFICATIONS THAT DISCRIMINATE AGAINST THE
EXERCISE OF CONSTITUTIONAL RIGHTS PER SE STAND ON AN ALTOGETHER
DIFFERENT FOOTING.  THEY MUST BE SUPPORTED BY A "COMPELLING"
GOVERNMENTAL PURPOSE AND MUST BE CAREFULLY EXAMINED TO INSURE THAT THE
PURPOSE IS UNRELATED TO MERE HOSTILITY TO THE RIGHT BEING ASSERTED. 
SEE, E.G., SHAPIRO V. THOMPSON, 394 U.S. 618, 634 (1969). 

MOREOVER, NOT ONLY IS THIS CLASSIFICATION SPEECH RELATED; IT ALSO
DISCRIMINATES BETWEEN OTHERWISE INDISTINGUISHABLE PARTIES ON THE BASIS
OF THE CONTENT OF THEIR SPEECH.  THUS, CALIFORNIA NIGHTCLUB OWNERS MAY
PRESENT LIVE SHOWS AND MOVIES DEALING WITH A WIDE VARIETY OF TOPICS
WHILE MAINTAINING THEIR LICENSES.  BUT IF THEY CHOOSE TO DEAL WITH SEX,
THEY ARE TREATED QUITE DIFFERENTLY.  CLASSIFICATIONS BASED ON THE
CONTENT OF SPEECH HAVE LONG BEEN DISFAVORED AND MUST BE VIEWED WITH THE
GRAVEST SUSPICION.  SEE, E.G., COX V. LOUISIANA, 379 U.S. 536, 556-558
(1965).  WHETHER THIS TEST IS THOUGHT TO DERIVE FROM EQUAL PROTECTION
ANALYSIS, SEE POLICE DEPARTMENT OF CHICAGO V. MOSLEY, 408 U.S. 92
(1972); NIEMOTKO V. MARYLAND, 340 U.S. 268 (1951), OR DIRECTLY FROM THE
SUBSTANTIVE CONSTITUTIONAL PROVISION INVOLVED, SEE COX V. LOUISIANA,
SUPRA; SCHNEIDER V. STATE, 308 U.S. 147 (1939), THE RESULT IS THE SAME:
ANY LAW THAT HAS "NO OTHER PURPOSE . . . THAN TO CHILL THE ASSERTION
OF CONSTITUTIONAL RIGHTS BY PENALIZING THOSE WHO CHOOSE TO EXERCISE
THEM . . . (IS) PATENTLY UNCONSTITUTIONAL."  UNITED STATES V. JACKSON,
390 U.S. 570, 581 (1968). 

AS ARGUED ABOVE, THE CONSTITUTIONALLY PERMISSIBLE PURPOSES ASSERTED
TO JUSTIFY THESE REGULATIONS ARE TOO REMOTE TO SATISFY THE GOVERNMENT'S
BURDEN WHEN FIRST AMENDMENT RIGHTS ARE AT STAKE.  SEE SUPRA, AT 131
133.  IT MAY BE THAT THE GOVERNMENT HAS AN INTEREST IN SUPPRESSING LEWD
OR "INDECENT" SPEECH EVEN WHEN IT OCCURS IN PRIVATE AMONG CONSENTING
ADULTS.  CF. UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363,
376 (1971).  BUT CF. STANLEY V. GEORGIA, 394 U.S. 557 (1969).  THAT
INTEREST, HOWEVER, MUST BE BALANCED AGAINST THE OVERRIDING INTEREST OF
OUR CITIZENS IN FREEDOM OF THOUGHT AND EXPRESSION.  OUR PRIOR DECISIONS
ON OBSCENITY SET SUCH A BALANCE AND HOLD THAT THE GOVERNMENT MAY
SUPPRESS EXPRESSION TREATING WITH SEX ONLY IF IT MEETS THE THREE
PRONGED ROTH-MEMOIRS TEST.  WE HAVE SAID THAT "(THE DOOR BARRING
FEDERAL AND STATE INTRUSION INTO THIS AREA CANNOT BE LEFT AJAR; IT MUST
BE KEPT TIGHTLY CLOSED AND OPENED ONLY THE SLIGHTEST CRACK NECESSARY TO
PREVENT ENCROACHMENT UPON MORE IMPORTANT INTERESTS."  ROTH V. UNITED
STATES, 354 U.S.,AT 488.  BECAUSE I CAN SEE NO REASON WHY WE SHOULD
DEPART FROM THAT STANDARD IN THIS CASE, I MUST RESPECTFULLY DISSENT. 

/1/  RULE 143.3(1) PROVIDES IN RELEVANT PART: 

"NO LICENSEE SHALL PERMIT ANY PERSON TO PERFORM ACTS OF OR ACTS
WHICH SIMULATE: 

"(A) SEXUAL INTERCOURSE, MASTURBATION, SODOMY, BESTIALITY, ORAL
COPULATION, FLAGELLATION OR ANY SEXUAL ACTS WHICH ARE PROHIBITED BY
LAW. 

"(B) THE TOUCHING, CARESSING OR FONDLING ON THE BREAST, BUTTOCKS,
ANUS OR GENITALS. 

"(C) THE DISPLAYING OF THE PUBIC HAIR, ANUS, VULVA OR GENITALS." 

RULE 143.4 PROHIBITS:  "THE SHOWING OF FILM, STILL PICTURES,
ELECTRONIC REPRODUCTION, OR OTHER VISUAL REPRODUCTIONS DEPICTING: 

"(1) ACTS OR SIMULATED ACTS OF SEXUAL INTERCOURSE, MASTURBATION,
SODOMY, BESTIALITY, ORAL COPULATION, FLAGELLATION OR ANY SEXUAL ACTS
WHICH ARE PROHIBITED BY LAW. 

"(2) ANY PERSON BEING TOUCHED, CARRESSED OR FONDLED ON THE BREAST,
BUTTOCKS, ANUS OR GENITALS. 

"(3) SCENES WHEREIN A PERSON DISPLAYS THE VULVA OR THE ANUS OR THE
GENITALS. 

"(4) SCENES WHEREIN ARTIFICIAL DEVICES OR INANIMATE OBJECTS ARE
EMPLOYED TO DEPICT, OR DRAWINGS ARE EMPLOYED TO PORTRAY, ANY OF THE
PROHIBITED ACTIVITIES DESCRIBED ABOVE." 

/2/  THIS IS NOT AN APPROPRIATE CASE FOR APPLICATION OF THE
ABSTENTION DOCTRINE.  SINCE THESE REGULATIONS ARE CHALLENGED ON THEIR
FACE FOR OVERBREADTH, NO PURPOSE WOULD BE SERVED BY AWAITING A STATE
COURT CONSTRUCTION OF THEM UNLESS THE PRINCIPLES ANNOUNCED IN YOUNGER
V. HARRIS, 401 U.S. 37 (1971), GOVERN.  SEE ZWICKLER V. KOOTA, 389 U.S.
241, 248-250 (1967).  THUS FAR, HOWEVER, WE HAVE LIMITED THE
APPLICABILITY OF YOUNGER TO CASES WHERE THE PLAINTIFF HAS AN ADEQUATE
REMEDY IN A PENDING CRIMINAL PROSECUTION.  SEE YOUNGER V. HARRIS,
SUPRA, AT 43-44.  CF. DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157
(1943).  BUT CF. BERRYHILL V. GIBSON, 331 F.SUPP.  122, 124 (MDALA. 
1971), PROBABLE JURISDICTION NOTED, 408 U.S.920 (1972).  THE CALIFORNIA
LICENSING PROVISIONS ARE, OF COURSE, CIVIL IN NATURE.  CF. HEARN V.
SHORT, 327 F.SUPP.  33 (SD TEX. 1971).  MOREOVER, THE YOUNGER DOCTRINE
HAS BEEN HELD TO "HAVE LITTLE FORCE IN THE ABSENCE OF A PENDING STATE
PROCEEDING."  LAKE CARRIERS' ASSN. V. MACMULLAN, 406 U.S. 498, 509
(1972).  THERE ARE AT PRESENT NO PROCEEDINGS OF ANY KIND PENDING
AGAINST THESE APPELLEES.  FINALLY, SINCE THE YOUNGER DOCTRINE RESTS
HEAVILY ON FEDERAL DEFERENCE TO STATE ADMINISTRATION OF ITS OWN
STATUTES, SEE YOUNGER V. HARRIS, SUPRA, AT 44-45, IT IS WAIVABLE BY THE
STATE.  CF. HOSTETTER V. IDLEWILD LIQUOR CORP., 377 U.S. 324, 329
(1964).  APPELLANTS HAVE NOWHERE MENTIONED THE YOUNGER DOCTRINE IN
THEIR BRIEF BEFORE THIS COURT, AND WHEN THE CASE WAS BROUGHT TO THE
ATTENTION OF THE ATTORNEY FOR THE APPELLANTS DURING ORAL ARGUMENT, HE
EXPRESSLY ESCHEWED RELIANCE ON IT.  IN THE COURT BELOW, APPELLANTS
SPECIFICALLY ASKED FOR A FEDERAL DECISION ON THE VALIDITY OF
CALIFORNIA'S REGULATIONS AND STATED THAT THEY DID NOT THINK THE COURT
SHOULD ABSTAIN.  SEE 326 F.SUPP.  348, 351 (CD CAL. 1971). 

/3/  I AM STARTLED BY THE MAJORITY'S SUGGESTION THAT THE REGULATIONS
ARE CONSTITUTIONAL ON THEIR FACE EVEN THOUGH "SPECIFIC FUTURE
APPLICATIONS OF (THE STATUTE) MAY ENGENDER CONCRETE PROBLEMS OF
CONSTITUTIONAL DIMENSION."  (QUOTING WITH APPROVAL SEAGRAM & SONS V.
HOSTETTER, 384 U.S. 35, 52 (1966).  ANTE, AT 119 N. 5.)  EVER SINCE
THORNHILL V. ALABAMA, 310 U.S. 88 (1940), IT HAS BEEN THOUGHT THAT
STATUTES WHICH TRENCH UPON FIRST AMENDMENT RIGHTS ARE FACIALLY VOID
EVEN IF THE CONDUCT OF THE PARTY CHALLENGING THEM COULD BE PROHIBITED
UNDER A MORE NARROWLY DRAWN SCHEME.  SEE, E.G., BAGGETT V. BULLITT, 377
U.S. 360, 366 (1964); COATES V. CITY OF CINCINNATI, 402 U.S. 611, 616
(1971); NAACP V. BUTTON, 371 U.S. 415, 432-433 (1963). 

NOR IS IT RELEVANT THAT THE STATE HERE "SOUGHT TO PREVENT
(BACCHANALIAN REVELRIES)" RATHER THAN PERFORMANCES BY "SCANTILY CLAD
BALLET TROUPES)."  WHATEVER THE STATE "SOUGHT" TO DO, THE FACT IS THAT
THESE REGULATIONS COVER BOTH THESE ACTIVITIES.  AND IT SHOULD BE CLEAR
THAT A PRAISEWORTHY LEGISLATIVE MOTIVE CAN NO MORE REHABILITATE AN
UNCONSTITUTIONAL STATUTE THAN AN ILLICIT MOTIVE CAN INVALIDATE A PROPER
STATUTE. 

/4/  INDEED, THERE ARE SOME INDICATIONS IN THE LEGISLATIVE HISTORY
THAT CALIFORNIA ADOPTED THESE REGULATIONS FOR THE SPECIFIC PURPOSE OF
EVADING THOSE STANDARDS.  THUS, CAPTAIN ROBERT DEVIN OF THE LOS ANGELES
POLICE DEPARTMENT TESTIFIED THAT THE DEPARTMENT FAVORED ADOPTION OF THE
NEW REGULATIONS FOR THE FOLLOWING REASON:  "WHILE STATUTORY LAW HAS
BEEN AVAILABLE TO US TO REGULATE WHAT WAS FORMERLY CONSIDERED AS
ANTISOCIAL BEHAVIOR, THE FEDERAL AND STATE JUDICIAL SYSTEM HAS, THROUGH
A SERIES OF SIMILAR DECISIONS, EFFECTIVELY EMASCULATED LAW ENFORCEMENT
IN ITS EFFORT TO CONTAIN AND TO CONTROL THE GROWTH OF PORNOGRAPHY AND
OF OBSCENITY AND OF BEHAVIOR THAT IS ASSOCIATED WITH THIS KIND OF
PERFORMANCE."  SEE ALSO TESTIMONY OF ROY E. JUNE, CITY ATTORNEY OF THE
CITY OF COSTA MESA; TESTIMONY OF RICHARD C. HIRSCH, OFFICE OF LOS
ANGELES COUNTY DISTRICT ATTORNEY.  APP. 117. 

/5/  I DO NOT MEAN TO SUGGEST THAT THIS TEST NEED BE RIGIDLY APPLIED
IN ALL SITUATIONS.  DIFFERENT STANDARDS MAY BE APPLICABLE WHEN CHILDREN
ARE INVOLVED, SEE GINSBERG V. NEW YORK, 390 U.S. 629 (1968); WHEN A
CONSENTING ADULT POSSESSES PUTATIVELY OBSCENE MATERIAL IN HIS OWN HOME,
SEE STANLEY V. GEORGIA, 394 U.S. 557 (1969); OR WHEN THE MATERIAL BY
THE NATURE OF ITS PRESENTATION CANNOT BE VIEWED AS A WHOLE, SEE RABE V.
WASHINGTON, 405 U.S. 313, 317 N. 2 (1972) (BURGER, C. J., CONCURRING). 
SIMILARLY, I DO NOT MEAN TO FORECLOSE THE POSSIBILITY THAT EVEN THE
ROTH-MEMOIRS TEST WILL ULTIMATELY BE FOUND INSUFFICIENT TO PROTECT
FIRST AMENDMENT INTERESTS WHEN CONSENTING ADULTS VIEW PUTATIVELY
OBSCENE MATERIAL IN PRIVATE.  CF. REDRUP V. NEW YORK, 386 U.S. 767
(1967).  BUT CF. UNITED STATES V. REIDEL, 402 U.S. 351 (1971).  BUT I
DO THINK THAT, AT VERY LEAST, ROTH-MEMOIRS SETS AN ABSOLUTE LIMIT ON
THE KINDS OF SPEECH THAT CAN BE ALTOGETHER READ OUT OF THE FIRST
AMENDMENT FOR PURPOSES OF CONSENTING ADULTS. 

/6/  CF. FULLER, CHANGING SOCIETY PUTS TASTE TO THE TEST, THE
NATIONAL OBSERVER, JUNE 10, 1972, P. 24:  "CONTEXT IS THE ESSENCE OF
ESTHETIC JUDGMENT . . . THERE IS A WORLD OF DIFFERENCE BETWEEN PLAYBOY
AND LESS PRETENTIOUS GIRLY MAGAZINES ON THE ONE HAND, AND ON THE OTHER,
THE NUDE, A PICTURE SELECTION FROM THE WHOLE HISTORY OF ART, BY THAT
FINE TEACHER AND INTERPRETER OF CIVILIZATION, KENNETH CLARK.  PEOPLE
MAY BE JUST AS NAKED IN ONE OR THE OTHER, THE BODIES INHERENTLY JUST AS
BEAUTIFUL, BUT THE CONTEXT OF THE FORMER IS VULGAR, OF THE LATTER,
ESTHETIC. 

"THE SAME WORDS, THE SAME ACTIONS, THAT ARE CHEAP AND TAWDRY IN ONE
BOOK OR PLAY MAY CONTRIBUTE TO THE SUBLIMITY, COMIC UNIVERSALITY, OR
TRAGIC POWER OF OTHERS.  FOR A VIABLE THEORY OF TASTE, CONTEXT IS
ALL." 

/7/  MOREOVER, EVEN IF THE O'BRIEN TEST WERE HERE APPLICABLE, IT IS
FAR FROM CLEAR THAT IT HAS BEEN SATISFIED.  FOR EXAMPLE, MOST OF THE
EVILS THAT THE STATE ALLEGES ARE CAUSED BY APPELLEES' PERFORMANCES ARE
ALREADY PUNISHABLE UNDER CALIFORNIA LAW.  SEE N. 11, INFRA.  SINCE THE
LESS DRASTIC ALTERNATIVE OF CRIMINAL PROSECUTION IS AVAILABLE TO PUNISH
THESE VIOLATIONS, IT IS HARD TO SEE HOW "THE INCIDENTAL RESTRICTION ON
ALLEGED FIRST AMENDMENT FREEDOMS IS NO GREATER THAN IS ESSENTIAL" TO
FURTHER THE STATE'S INTEREST. 

/8/  THE COURT POINTED OUT THAT THE STATUTE "DOES NOT DISTINGUISH
BETWEEN PUBLIC AND PRIVATE DESTRUCTION, AND IT DOES NOT PUNISH ONLY
DESTRUCTION ENGAGED IN FOR THE PURPOSE OF EXPRESSING VIEWS . . . A LAW
PROHIBITING DESTRUCTION OF SELECTIVE SERVICE CERTIFICATES NO MORE
ABRIDGES FREE SPEECH ON ITS FACE THAN A MOTOR VEHICLE LAW PROHIBITING
THE DESTRUCTION OF DRIVERS' LICENSES, OR A TAX LAW PROHIBITING THE
DESTRUCTION OF BOOKS AND RECORDS."  391 U.S.,AT 375. 

/9/  OF COURSE, THE STATE NEED NOT MEET THE CLEAR AND PRESENT DANGER
TEST IF THE MATERIAL IN QUESTION IS OBSCENE.  SEE ROTH V. UNITED
STATES, 354 U.S. 476 (1957).  BUT, AS ARGUED ABOVE, THE DIFFICULTY WITH
CALIFORNIA'S RULES IS THAT THEY DO NOT CONFORM TO THE ROTH TEST AND
THEREFORE REGULATE MATERIAL THAT IS NOT OBSCENE.  SEE SUPRA, AT 126
127. 

/10/  THIS CASE MIGHT BE DIFFERENT IF THE STATE ASSERTED A PRIMARY
INTEREST IN STOPPING THE VERY ACTS PERFORMED BY THESE DANCERS AND
ACTORS.  HOWEVER, I HAVE SERIOUS DOUBTS WHETHER THE STATE MAY
CONSTITUTIONALLY ASSERT AN INTEREST IN REGULATING ANY SEXUAL ACT
BETWEEN CONSENTING ADULTS.  CF. GRISWOLD V. CONNECTICUT, 381 U.S. 479
(1965).  MOREOVER, IT IS UNNECESSARY TO REACH THAT QUESTION IN THIS
CASE SINCE THE STATE'S REGULATIONS ARE PLAINLY NOT DESIGNED TO STOP THE
ACTS THEMSELVES, MOST OF WHICH ARE IN FACT LEGAL WHEN DONE IN PRIVATE. 
RATHER, THE STATE PUNISHES THE ACTS ONLY WHEN DONE IN PUBLIC AS PART OF
A DRAMATIC PRESENTATION.  CF. UNITED STATES V. O'BRIEN, SUPRA, AT 375. 
IT MUST BE, THEREFORE, THAT THE ASSERTED STATE INTEREST STEMS FROM THE
EFFECT OF THE ACTS ON THE AUDIENCE RATHER THAN FROM A DESIRE TO STOP
THE ACTS THEMSELVES.  IT SHOULD ALSO BE EMPHASIZED THAT THIS CASE DOES
NOT PRESENT PROBLEMS OF AN UNWILLING AUDIENCE OR OF AN AUDIENCE
COMPOSED OF MINORS. 

/11/  INDEED, CALIFORNIA ALREADY HAS STATUTES CONTROLLING VIRTUALLY
ALL OF THE MISCONDUCT SAID TO FLOW FROM APPELLEES' ACTIVITIES.  SEE
CALIF. PENAL CODE SEC. 647(B) (SUPP. 1972) (PROSTITUTION); CALIF. PENAL
CODE SECS. 261, 263 (1970) (RAPE); CALIF. BUS.  & PROF. CODE SEC. 25657
(SUPP. 1972) ("B-GIRL" ACTIVITY); CALIF. HEALTH & SAFETY CODE SECS.
11500, 11501, 11721, 11910, 11912 (1964 AND SUPP. 1972) (SALE AND USE
OF NARCOTICS). 

/12/  OF COURSE, IT IS TRUE THAT STANLEY DOES NOT GOVERN THIS CASE,
SINCE STANLEY DEALT ONLY WITH THE PRIVATE POSSESSION OF OBSCENE
MATERIALS IN ONE'S OWN HOME.  BUT IN ANOTHER SENSE, THIS CASE IS
STRONGER THAN STANLEY.  IN STANLEY, WE HELD THAT THE STATE'S INTEREST
IN THE PREVENTION OF SEX CRIMES DID NOT JUSTIFY LAWS RESTRICTING
POSSESSION OF CERTAIN MATERIALS, EVEN THOUGH THEY WERE CONCEDED TO BE
OBSCENE.  IT FOLLOWS A FORTIORI THAT THIS INTEREST IS INSUFFICIENT WHEN
THE MATERIALS ARE NOT OBSCENE AND, INDEED, ARE CONSTITUTIONALLY
PROTECTED. 

/13/  THE TWENTY-FIRST AMENDMENT, IN ADDITION TO REPEALING THE
EIGHTEENTH AMENDMENT, PROVIDES:  "THE TRANSPORTATION OR IMPORTATION
INTO ANY STATE, TERRITORY, OR POSSESSION OF THE UNITED STATES FOR
DELIVERY OR USE THEREIN OF INTOXICATING LIQUORS, IN VIOLATION OF THE
LAWS THEREOF, IS HEREBY PROHIBITED." 

/14/  THE TEXT OF THE AMENDMENT IS BASED ON THE WEBB-KENYON ACT, 37
STAT. 699, WHICH ANTEDATED PROHIBITION.  THE ACT WAS ENTITLED "AN ACT
DIVESTING INTOXICATING LIQUORS OF THEIR INTERSTATE CHARACTER IN CERTAIN
CASES," AND WAS DESIGNED TO ALLOW "DRY" STATES TO REGULATE THE FLOW OF
ALCOHOL ACROSS THEIR BORDERS.  SEE, E.G., MCCORMICK & CO. V. BROWN, 286
U.S. 131, 140-141 (1932); CLARK DISTILLING CO. V. WESTERN MARYLAND R.
CO., 242 U.S. 311, 324 (1917).  THE TWENTY-FIRST AMENDMENT WAS INTENDED
TO EMBED THIS PRINCIPLE PERMANENTLY INTO THE CONSTITUTION.  AS
EXPLAINED BY ITS SPONSOR ON THE SENATE FLOOR "TO ASSURE THE SO-CALLED
DRY STATES AGAINST THE IMPORTATION OF INTOXICATING LIQUOR INTO THOSE
STATES, IT IS PROPOSED TO WRITE PERMANENTLY INTO THE CONSTITUTION A
PROHIBITION ALONG THAT LINE. 

"(THE PENDING PROPOSAL WILL GIVE THE STATES THAT GUARANTEE.  WHEN
OUR GOVERNMENT WAS ORGANIZED AND THE CONSTITUTION OF THE UNITED STATES
ADOPTED, THE STATES SURRENDERED CONTROL OVER AND REGULATION OF
INTERSTATE COMMERCE.  THIS PROPOSAL IS RESTORING TO THE STATES, IN
EFFECT, THE RIGHT TO REGULATE COMMERCE RESPECTING A SINGLE COMMODITY--
NAMELY, INTOXICATING LIQUOR."  76 CONG.REC.  4141 (REMARKS OF SEN.
BLAINE). 

/15/  SEE SHAPIRO V. THOMPSON, 394 U.S. 618 (1969).  BUT CF. WYMAN
V. JAMES, 400 U.S. 309 (1971). 

/16/  SEE SHERBERT V. VERNER, 374 U.S. 398 (1963). 

/17/  SEE SPEISER V. RANDALL, 357 U.S. 513 (1958). 

/18/  SEE, E.G., PICKERING V. BOARD OF EDUCATION, 391 U.S. 563
(1968); KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589 (1967); BAGGETT V.
BULLITT, 377 U.S. 360 (1964). 

/19/  SEE, E.G., BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1 (1971);
KONIGSBERG V. STATE BAR, 353 U.S. 252 (1957); SCHWARE V. BOARD OF BAR
EXAMINERS, 353 U.S. 232 (1957).  BUT CF. LAW STUDENTS CIVIL RIGHTS
RESEARCH COUNCIL V. WADMOND, 401 U.S. 154 (1971); KONIGSBERG V. STATE
BAR, 366 U.S. 36 (1961). 

/20/  SEE, E.G., BLOUNT V. RIZZI, 400 U.S. 410 (1971); HANNEGAN V.
ESQUIRE INC., 327 U.S. 146, 156 (1946). 

L. STEPHEN PORTER, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WAS EVELLE J. YOUNGER,
ATTORNEY GENERAL. 

HARRISON W. HERTZBERG AND KENNETH SCHOLTZ ARGUED THE CAUSE FOR
APPELLEES.  WITH THEM ON THE BRIEF WAS WARREN I. WOLFE. 
..END :













UNION OIL CO. V. THE SAN JACINTO, 409 U.S. 140 


       UNION OIL CO. OF CALIFORNIA V. THE SAN JACINTO ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 71-900.  ARGUED OCTOBER 17, 1972-- DECIDED DECEMBER 5,

1972 


IMPLICIT IN THAT PORTION OF ART. 16 OF THE INLAND RULES OF NAVIGATION
THAT DIRECTS A MODERATE SPEED FOR VESSELS PROCEEDING IN FOGGY WEATHER,
AND IN THE CONCOMITANT HALF-DISTANCE RULE, IS THE ASSUMPTION THAT
VESSELS CAN REASONABLY BE EXPECTED TO BE TRAVELING ON INTERSECTING
COURSES.  ON THE FACTS OF THIS CASE, IT WAS TOTALLY UNREALISTIC TO
ANTICIPATE THE POSSIBILITY THAT THE VESSELS WERE ON INTERSECTING
COURSES AND THE RULE WAS NOT APPLICABLE.  PP. 144-146. 

451 F.2D 1369, REVERSED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, MARSHALL, BLACKMUN, AND POWELL, JJ., JOINED.  STEWART,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN, JJ.,
JOINED, POST, P. 147. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

WHILE PROCEEDING UP THE COLUMBIA RIVER, THE OIL TANKER S. S. SANTA
MARIA, BAREBOAT CHARTERED BY PETITIONER, WAS STRUCK BY A BARGE OWNED BY
RESPONDENT OLIVER J. OLSON & CO. THE BARGE WAS BEING TOWED BY THE
TUGBOAT SAN JACINTO, OWNED BY RESPONDENT STAR & CRESCENT TOWBOAT CO.
BOTH VESSELS WERE DAMAGED.  PETITIONER COMMENCED THIS ADMIRALTY ACTION
FOR DAMAGES TO THE SANTA MARIA, AND RESPONDENT CROSS-LIBELED FOR
DAMAGES TO THE BARGE.  THE DISTRICT COURT FOUND THE COLLISION RESULTED
SOLELY FROM NEGLIGENCE ON THE PART OF THE CREW OF THE SAN JACINTO, AND
DISMISSED THE CROSS-LIBEL.  304 F.SUPP.  519 (ORE.  1969).  THE NINTH
CIRCUIT AFFIRMED THE FINDING THAT THE SAN JACINTO HAD BEEN NEGLIGENT,
BUT DETERMINED THAT THE SANTA MARIA WAS ALSO NEGLIGENT IN VIOLATING THE
"HALF-DISTANCE" RULE, 30 STAT. 99, 33 U.S.C. 192.  THAT COURT THEREFORE
REVERSED WITH DIRECTIONS THAT THE DISTRICT COURT DETERMINE THE AMOUNT
OF DAMAGE SUSTAINED BY THE BARGE AND ASSESS DAMAGES UNDER THE DIVIDED
DAMAGES RULE.  SEE THE SCHOONER CATHERINE V. DICKINSON, 17 HOW.  170
(1855).  WE GRANTED CERTIORARI, 405 U.S. 954 (1972), PRINCIPALLY TO
CONSIDER PETITIONER'S REQUEST THAT WE ABANDON THE DIVIDED-DAMAGES
RULE.  THE ORDERLY DISPOSITION OF THE ISSUES PRESENTED BY THE PETITION
FOR CERTIORARI, HOWEVER, REQUIRES THAT WE ADDRESS OURSELVES TO THE
ISSUE OF LIABILITY BEFORE REACHING THE QUESTION OF DAMAGES.  SINCE IN
SO DOING WE CONCLUDE THAT THE COURT OF APPEALS WAS WRONG IN HOLDING THE
SANTA MARIA LIABLE AT ALL, WE DO NOT REACH THE ISSUE OF DAMAGES. 

        I 

ON THE EVENING OF DECEMBER 24, 1967, THE SANTA MARIA, LOADED WITH
17,000 TONS OF PETROLEUM PRODUCTS, WAS PROCEEDING UP THE COLUMBIA RIVER
TOWARD PORTLAND.  THE SHIP WAS STEAMING ON THE OREGON SIDE OF THE
CHANNEL, WITH CLEAR VISIBILITY.  AT THE SAME TIME, THE SAN JACINTO WAS
PROCEEDING DOWNRIVER, TOWING A 275-FOOT BARGE, FULLY LOADED WITH
LUMBER, BY A 250-FOOT TOWLINE.  PROCEEDING ON THE WASHINTON SIDE OF THE
CHANNEL, IT HAD ENCOUNTERED FOGGY WEATHER CONDITIONS UPRIVER.  AS THE
SAN JACINTO APPROACHED COOPER POINT, THE SANTA MARIA, STEAMING
UPSTREAM, SIGHTED THE TUG BOTH VISUALLY AND BY RADAR.  THE TWO VESSELS
WERE MORE THAN A MILE APART AND ON OPPOSITE SIDES OF THE 500-FOOT-WIDE
SHIPPING CHANNEL.  THERE WAS HEAVY FOG, DESCRIBED AS "TULE FOG," AROUND
COOPER POINT, BUT THE FOG WAS LOCALIZED ON THE WASHINGTON SIDE OF THE
CHANNEL.  ALTHOUGH THERE WAS HAZE AND DRIZZLE, THERE WAS NO FOG ON THE
OREGON SIDE OF THE CHANNEL; THE VISIBILITY FROM THE BRIDGE OF THE SANTA
MARIA UPSTREAM WAS BETWEEN ONE AND ONE-HALF AND TWO MILES. 

AS THE SAN JACINTO ENTERED THE FOG ON THE WASHINGTON SIDE OFF COOPER
POINT, THE SANTA MARIA LOST VISUAL CONTACT WITH THE TUG AND BARGE.  THE
SANTA MARIA'S PILOT DID NOT TRACK THE SAN JACINTO ON RADAR, BELIEVING
THAT THE TUG WOULD REMAIN ON THE WASHINGTON SIDE OF THE CHANNEL AND
KNOWING THAT THERE WAS AMPLE ROOM FOR A PORT-TO-PORT PASSAGE.  AT THIS
TIME, THE SANTA MARIA WAS PROCEEDING AT HALF-SPEED MAKING APPROXIMATELY
SEVEN KNOTS. 

THE WATCH ON THE SAN JACINTO HAD NOT SIGHTED THE SANTA MARIA WHEN THE
TUG ENTERED THE HEAVY FOG OFF COOPER POINT.  THE TUG'S CAPTAIN
TESTIFIED THAT, AFTER ENTERING THE FOG, HE CUT SPEED TO THREE OR THREE
AND ONE-HALF KNOTS, AND THE VISIBILITY DEAD AHEAD WAS APPROXIMATELY 50
YARDS.  THE SAN JACINTO'S NAVIGATORS WERE "NAVIGATING BY VISUAL SIGHT
OF THE WASHINGTON COAST," AND THE CAPTAIN ESTIMATED THAT THE TUG PASSED
BETWEEN 50 AND 75 YARDS OFF COOPER POINT.  AT THAT POINT, THE CREW OF
THE SAN JACINTO HEARD ONE BLAST OF A SHIP'S HORN (LATER DISCOVERED TO
HAVE BEEN THAT OF THE SANTA MARIA), AND RESPONDED WITH THE FOG SIGNAL
FOR A TUG WITH A BARGE IN TOW.  NO VISUAL SIGHTING OF A SHIP WAS MADE,
HOWEVER.  SHORTLY THEREAFTER, THE CAPTAIN SIGHTED RANGE LIGHTS, WHICH,
HE TESTIFIED, HE THOUGHT WERE 20 DEGREES OFF HIS STARBOARD BOW.  TO
AVOID WHAT HE ANTICIPATED TO BE A MOMENTARY COLLISSION, THE CAPTAIN
SWUNG THE SAN JACINTO TO PORT-- TOWARDS THE OREGON SIDE OF THE CHANNEL-
AND EXECUTED A U-TURN, HOPING TO RUN UPRIVER AND THUS AVOID A
COLLISION. 

THE SAN JACINTO STARTED THE U-TURN WHILE STILL IN THE HEAVY FOG, AND
THE EXECUTION OF THE TURN BROUGHT THE TUG ON A COURSE DIRECTLY ACROSS
THAT OF THE SANTA MARIA.  THE SANTA MARIA SIGHTED THE SAN JACINTO
EMERGING FROM THE FOG, AT RIGHT ANGLES TO THE SANTA MARIA, AT A
DISTANCE OF APPROXIMATELY 900 FEET.  FULL ASTERN WAS IMMEDIATELY
ORDERED.  THE SAN JACINTO, QUICKLY COMPLETING THE TURN, HEADED SAFELY
UPRIVER.  BEFORE THE SANTA MARIA COULD COMPLETELY STOP, HOWEVER, THE
BARGE IN TOW SIDESLIPPED ACROSS THE CHANNEL, CRASHING INTO THE PORT BOW
OF THE SANTA MARIA; THE FORCE OF THAT BLOW DROVE THE TANKER AGROUND. 

THE DISTRICT COURT FOUND THAT THE SAN JACINTO AND THE BARGE, AND
THOSE IN CHARGE OF NAVIGATION, WERE NEGLIGENT IN EIGHT RESPECTS,
INCLUDING NAVIGATING AT EXCESSIVE SPEED, FAILING TO MAINTAIN A PROPER
LOOKOUT, AND "ACTING HASTILY AND WITHOUT SUFFICIENT CAUSE IN PULLING
THE TOW ACROSS THE CHANNEL WHEN THERE WAS ADEQUATE CLEARANCE FOR THE
TUG AND BARGE TO PASS PORT TO PORT."  THE COURT FOUND THAT "THE
COLLISION WAS PROXIMATELY CAUSED BY THE SOLE FAULT AND NEGLIGENCE" OF
THE SAN JACINTO AND THE BARGE, AND THAT THE ACTS OF NEGLIGENCE
ALLEGEDLY COMMITTED BY THE SANTA MARIA DID NOT "PROXIMATELY
(CONTRIBUTE) TO THE COLLISION AND RESULTING DAMAGE."  304 F.SUPP.,AT
521, 522. 

THE NINTH CIRCUIT PARTIALLY REVERSED, HOLDING THAT THE SANTA MARIA
WAS PROCEEDING AT AN IMMODERATE SPEED IN TRAVELING AT THREE TO SEVEN
KNOTS "WHILE APPROACHING THE EDGE OF THE FOG BANK."  THAT COURT
REASONED THAT THE SAN JACINTO WAS ONLY 900 FEET FROM THE SANTA MARIA
WHEN THE TUG EMERGED FROM THE FOG BANK, AND THE SANTA MARIA'S SPEED WAS
SUCH THAT SHE COULD NOT STOP WITHIN HALF THAT DISTANCE.  THE COURT,
RELYING ON THE SILVER PALM, 94 F.2D 754 (CA9), ERT.  DENIED SUB NOM.
UNITED STATES V. SILVER LINE, LTD., 304 U.S. 576 (1937), DEEMED IT
IMMATERIAL THAT THE VISIBILITY UP THE OREGON SIDE OF THE CHANNEL-- THE
DIRECTION IN WHICH THE SANTA MARIA WAS HEADED-- WAS ALMOST TWO MILES,
BECAUSE IN ITS VIEW THE "RELEVANT DISTANCE" FOR CALCULATING THE PROPER
SPEED UNDER THE HALF-DISTANCE RULE WAS THE DISTANCE BETWEEN THE TANKER
AND THE FOG BANK-- TO PORT OF THE SANTA MARIA.  FINDING STATUTORY
FAULT, AND RULING THAT PETITIONER HAD FAILED TO PROVE THAT THAT FAULT
COULD NOT HAVE POSSIBLY CONTRIBUTED TO THE COLLISION, SEE THE
PENNSYLVANIA, 19 WALL.  125 (1874), THE COURT OF APPEALS HELD THE SANTA
MARIA LIABLE FOR HALF THE TOTAL DAMAGES. 

        II 

THE QUESTION OF THE LIABILITY OF THE SANTA MARIA TURNS ON THE
APPLICATION OF ART. 16 OF THE INLAND RULES OF NAVIGATION, 33 U.S.C.
192.  THAT RULE PROVIDES IN PERTINENT PART: 

     "EVERY VESSEL SHALL, IN A FOG, MIST, FALLING SNOW, OR HEAVY

  RAINSTORMS, GO AT A MODERATE SPEED, HAVING CAREFUL REGARD TO THE

  EXISTING CIRCUMSTANCES AND CONDITIONS." 

ALTHOUGH THE STATUTORY TEST FOR DETERMINING THE PROPER SPPED AT WHICH A
VESSEL SHOULD PROCEED IN A FOG IS PHRASED IN GENERAL TERMS, OUR
DECISIONS HAVE ATTACHED A WELL-RECOGNIZED GLOSS TO THAT PHRASE.  THIS
GLOSS ON THE STATUTORY RULE, VARIOUSLY REFERRED TO AS THE HALF-DISTANCE
RULE OR THE "RULE OF SIGHT," IS THAT, IN A FOG, "A MODERATE SPEED" IS
THAT 

"RATE OF SPEED AS WOULD ENABLE (THE VESSEL) TO COME TO A STANDSTILL,
BY REVERSING HER ENGINES AT FULL SPEED, BEFORE SHE SHOULD COLLIDE WITH
A VESSEL WHICH SHE SHOULD SEE THROUGH THE FOG."  THE NACOOCHEE, 137
U.S. 330, 339 (1890).  SEE ALSO THE COLORADO, 91 U.S. 692, 702 (1876);
THE UMBRIA, 166 U.S. 404, 417 (1897).  AS STATED IN THE CHATTAHOOCHEE,
173 U.S. 540, 548 (1899), "(THE PRINCIPAL REASON FOR SUCH REDUCTION OF
SPEED IS THAT IT WILL GIVE (BOTH) VESSELS TIME TO AVOID A COLLISION
AFTER COMING IN SIGHT OF EACH OTHER."  IF TWO VESSELS, UPON SIGHTING
EACH OTHER, ARE PROCEEDING AT RATES OF SPEED SUCH THAT EACH CAN STOP
BEFORE IT REACHES THE POINT AT WHICH THE COURSES OF THE TWO INTERSECT,
COLLISION IS IMPOSSIBLE. 

THERE CAN BE NO QUARREL WITH THE SALUTARY PURPOSE OF THIS "RULE OF
THUMB."  IT IS PREMISED ON THE NOTION THAT WHEN A SHIP IS TRAVELING
UNDER FOGGY WEATHER CONDITIONS IN WATERS IN WHICH OTHER SHIPS MIGHT BE
PROCEEDING ON INTERSECTING COURSES, THE SPEED OF EACH SHIP MUST BE SUCH
AS TO ENABLE HER TO STOP WITHIN HALF THE DISTANCE SEPARATING THE SHIPS
WHEN THEY FIRST SIGHT EACH OTHER.  IMPLICIT IN THE RULE, HOWEVER, IS
THE ASSUMPTION THAT VESSELS CAN REASONABLY BE EXPECTED TO BE TRAVELING
ON INTERSECTING COURSES.  IF, ON THE FACTS OF THE CASE, IT IS TOTALLY
UNREALISTIC TO ANTICIPATE THE POSSIBILITY THAT A VESSEL WILL TRAVEL ON
A PARTICULAR HEADING THAT WOULD INTERSECT THE COURSE OF ANOTHER SHIP,
THE REASON FOR THE RULE IS RATHER CLEARLY NOT PRESENT. 

THOSE CASES IN WHICH THIS COURT HAS UPHELD A FINDING OF STATUTORY
FAULT BECAUSE OF A VIOLATION OF THE HALF-DISTANCE RULE INVOLVED SHIPS
PROCEEDING IN FOG ON ESTABLISHED COASTAL SHIPPING LANES, THE CITY OF
NEW YORK, 147 U.S. 72 (1893); THE NACOOCHEE, SUPRA; CF. THE COLORADO,
SUPRA (LAKE HURON), OR SHIPS TRAVELING NEAR OR IN A HARBOR, THE UMBRIA,
SUPRA; CF. THE LUDVIG HOLBERT, 157 U.S. 60 (1895) (NO FAULT).  WE DO
NOT IMPLY THAT BECAUSE A VESSEL IS RUNNING NEAR FOG, AS OPPOSED TO
RUNNING IN IT, THE VESSEL IS NOT REQUIRED TO PROCEED AT "A MODERATE
SPEED" IN RELATION TO THE DISTANCE TO THE FOG COVER.  THAT WAS, INDEED,
THE CIRCUMSTANCE IN THE SILVER PALM, SUPRA, UPON WHICH THE NINTH
CIRCUIT RELIED.  BUT THERE A NAVAL CRUISER WAS TRAVELING, WITH CLEAR
VISIBILITY AHEAD BUT WITH FOG BANKS ON EACH SIDE, ON THE BUY COASTAL
SHIPPING LANE BETWEEN SAN FRANCISCO AND LOS ANGELES.  ON SUCH A COURSE
IT IS REASONABLE TO EXPECT THAT ANOTHER SHIP MIGHT STEAM OUT OF THE FOG
AT RIGHT ANGLES TO, AND ON A COLLISION COURSE WITH, THE FIRST VESSEL. 
THE RULE OF SIGHT WAS APPLICABLE THERE PRECISELY BECAUSE OF THE
REASONABLE POSSIBILITY THAT SUCH AN EVENT MIGHT OCCUR. 

THE FACTS OF OUR CASE WERE SIGNIFICANTLY DIFFERENT.  THE SANTA MARIA
AND THE SAN JACINTO WERE PROCEEDING ON OPPOSITE SIDES OF A WELL-DEFINED
AND RELATIVELY NARROW CHANNEL.  THE SANTA MARIA HAD LAST SIGHTED THE
TUG ONLY A MILE AHEAD, PROCEEDING ALONG THE WASHINGTON COAST.  THOSE IN
CHARGE OF THE NAVIGATION OF THE TANKER CANNOT BE FAULTED FOR NOT
ANTICIPATING THE TUG'S TOTALLY UNORTHODOX MANEUVER IN DARTING ACROSS
SUCH A CHANNEL.  THE VICTORY & THE PLYMOTHIAN, 168 U.S. 410 (1897). 
THE VISIBILITY IN THE DIRECTION IN WHICH THE SANTA MARIA WAS HEADED WAS
ALMOST TWO MILES.  THERE IS NO EVIDENCE IN THE RECORD SUGGESTING THAT
THE SPEED OF THE TANKER WOULD HAVE PREVENTED HER FROM COMING TO A
COMPLETE HALT WITHIN HALF THE DISTANCE OF SIGHTING A VESSEL THAT WAS
EITHER PROCEEDING ON A REMOTELY FORESEEABLE INTERSECTING COURSE OR ELSE
BEING OVERTAKEN BY HER.  THE TUG EMERGED FROM A FOG BANK ONLY 900 FEET
FROM THE TANKER ON A COURSE AND FOR REASONS THAT NO SEAMAN COULD, UNDER
THE CIRCUMSTANCES, HAVE ANTICIPATED. 

THE DISTRICT COURT'S FINDING THAT ANY NEGLIGENCE ON THE PART OF THE
SANTA MARIA DID NOT "PROXIMATELY (CONTRIBUTE) TO THE COLLISION" WAS BUT
ANOTHER WAY OF SAYING THAT FAULT BASED ON THE HALF DISTANCE RULE MUST
HAVE SOME RELATIONSHIP TO THE DANGERS AGAINST WHICH THAT RULE WAS
DESIGNED TO PROTECT.  HERE IT DID NOT.  WE BELIEVE THAT THE DISTRICT
COURT, AND NOT THE COURT OF APPEALS, REACHED THE CORRECT RESULT ON THE
ISSUE OF LIABILITY. 

SINCE IN OUR VIEW RESPONDENTS ALONE WERE AT FAULT, THERE IS NO
OCCASION TO CONSIDER HOW DAMAGES SHOULD BE APPORTIONED WERE BOTH
VESSELS AT FAULT. 

         REVERSED. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

ON A MISTY CHRISTMAS EVE THE PETITIONER'S OIL TANKER-- THE SANTA
MARIA-- WAS MOVING UPSTREAM ALONG THE OREGON SIDE OF THE CHANNEL OF THE
COLUMBIA RIVER.  THE VESSEL WAS PROCEEDING AT HALF SPEED WITH FORWARD
VISIBILITY OF ONE AND A HALF TO TWO MILES.  BOTH VISUALLY AND BY RADAR,
THE TANKER'S PILOT SIGHTED THE RESPONDENT TUG, THE SAN JACINTO, WHICH
WAS MOVING DOWNSTREAM ALONG THE WASHINGTON SIDE OF THE CHANNEL MORE
THAN A MILE AHEAD.  THE TUG, WITH A HEAVILY LADEN BARGE IN TOW,
DISAPPEARED FROM SIGHT INTO A PATCH OF FOG.  THE INEXPERIENCED CREW OF
THE TUG BECAME DISORIENTED IN THE FOG AND MISTAKENLY THOUGHT THE TAKER
HAD VEERED TO THE WASHINGTON SIDE OF THE CHANNEL.  TO AVOID WHAT HE
BELIEVED WOULD BE A COLLISION, THE MASTER OF THE TUG EXECUTED A SHARP
LEFTWARD U-TURN DIRECTLY INTO THE PATH OF THE ONCOMING TANKER.  WHILE
THE TUG SUCCESSFULLY COMPLETED ITS TURN, THE BARGE SWUNG AROUND AND
SMASHED INTO THE TANKER, DAMAGING HER FORWARD LEFT SIDE AND DRIVING HER
AGROUND. 

IN A COMPLAINT AND CROSS-COMPLAINT THE OWNERS OF BOTH VESSELS SUED,
EACH CHARGING THE OTHER WITH SOLE BLAME.  THE DISTRICT COURT FOUND THAT
THE COLLISION WAS ENTIRELY THE FAULT OF THE TUG-- IN NAVIGATING AT AN
UNREASONABLE SPEED IN FOG, IN FAILING TO MAINTAIN A PROPER LOOKOUT, IN
FAILING TO SOUND FOG SIGNALS, IN FAILING TO ASCERTAIN THE RISK OF
COLLISION AND SOUND THE DANGER SIGNAL, IN FAILING TO REDUCE SPEED OR
TAKE ANY EVASIVE ACTION, IN FAILING TO KEEP THE TOW IN CONTROL, AND IN
TURNING DIRECTLY INTO THE PATH OF THE TANKER.  304 F.SUPP.  519. 
FINDING THAT THE TANKER WAS ALSO AT FAULT IN PROCEEDING AT A RATE IN
EXCESS OF THAT WHICH WOULD HAVE ALLOWED HER TO STOP IN ONE-HALF THE
VISIBILITY BEFORE HER, THE COURT OF APPEALS FOR THE NINTH CIRCUIT
MODIFIED THE JUDGMENT OF THE DISTRICT COURT.  451 F.2D 1369.  THOUGH
THE TUG'S FAULT WAS "MORE FLAGRANT AND SHOCKING," ID., AT 1374, THE
TANKER WAS HELD LIABLE FOR HALF THE DAMAGES, SINCE SHE WAS UNABLE TO
PROVE THAT HER FAULT COULD NOT POSSIBLE HAVE CONTRIBUTED TO THE
COLLISION.  /1/     I WOULD REAFFIRM THE CONTINUED VITALITY OF THE
"HALF-DISTANCE" RULE AND APPROVE ITS APPLICATION IN THIS CASE.  I
CANNOT CONCUR IN THE COURT'S DECISION, WHICH, WHILE APPARENTLY
APPROVING THE "SALUTARY PURPOSE" OF THE RULE, GUTS ITS CERTAINTY BY
MAKING ITS APPLICATION TURN ON ELUSIVE CONCEPTS SUCH AS THE REASONABLE
POSSIBILITY OF COLLISION, OR THE PARTICULAR BEARING THAT A VESSEL MIGHT
BE EXPECTED TO TAKE ON EMERGING FROM A FOG BANK.  IN SHORT, THE COURT
TODAY ALLOWS A VESSEL TO PROCEED AT AN IMMODERATE SPEED, PROVIDED THAT
ITS CREW DOES NOT EXPECT A COLLISION.  I CANNOT AGREE. 

THE HALF-DISTANCE RULE IS A RATIONAL INTERPRETATION OF THE COMMAND
OF ART. 16 OF THE INLAND RULES THAT VESSELS SHALL PROCEED AT A
"MODERATE SPEED" IN FOG WITH A "CAREFUL REGARD TO THE EXISTING
CIRCUMSTANCES AND CONDITIONS."  33 U.S.C. 192.  THE RULE DOES NOT
SIMPLY REQUIRE A VESSEL TO BE ABLE TO STOP IN ONE-HALF THE DISTANCE OF
HER FORWARD VISIBILITY, BUT RATHER "TO MAINTAIN ONLY SUCH A RATE OF
SPEED AS WOULD ENABLE HER TO COME TO A STANDSTILL, BY REVERSING HER
ENGINES AT FULL SPEED, BEFORE SHE SHOULD COLLIDE WITH A VESSEL WHICH
SHE SHOULD SEE THROUGH THE FOG."  THE NACOOCHEE, 137 U.S. 330, 339. 
/2/  AS ONE SCHOLAR PHRASED THE RULE:  "THE VESSELS MUST BE ABLE TO
STOP, NOT WITHIN THE DISTANCE OF VISIBILITY, BUT BEFORE THEY COLLIDE." 
J. GRIFFIN, THE AMERICAN LAW OF COLLISION 295 (1949). 

IN THIS CASE, THE CREW OF THE SANTA MARIA KNEW THAT THE SAN JACINTO
HAD DISAPPEARED INTO A FOG BANK OVER A MILE AHEAD ON THE WASHINGTON
SIDE OF THE NARROW CHANNEL.  THE TANKER NEVERTHELESS STEAMED AHEAD AT
HALF-SPEED AS IT APPROACHED THE EDGE OF THE FOG BANK.  WHEN THE SANTA
MARIA SIGHTED THE TUG EMERGING FROM THE FOG AND CUTTING DIRECTLY ACROSS
HER COURSE, NO MORE THAN 900 FEET SEPARATED THE VESSELS.  THE COURT OF
APPEALS FOUND A VIOLATION OF THE HALF-DISTANCE RULE IN THAT THE TANKER
COULD NOT STOP WITHIN 450 FEET.  /3/  INDEED, SINCE THE TUG HAD TURNED
BACK UPSTREAM AT THE TIME OF THE TANKER'S COLLISION WITH THE BARGE, THE
SANTA MARIA COVERED CONSIDERABLY MORE THAN HALF THE DISTANCE THAT
INITIALLY SEPARATED THE VESSELS. 

I AGREE WITH THE COURT OF APPEALS THAT THE HALF-DISTANCE RULE
CORRECTLY APPLIES TO THE FACTS OF THIS CASE.  NOT ONLY WAS THE SANTA
MARIA NAVIGATING NEAR A FOG BANK IN A NARROW, HEAVILY TRAVELED SHIPPING
CHANNEL, BUT SHE ACTUALLY KNOW THAT A TUG WAS IN THE FOG BANK OFF THE
PORT BOW; THE TUG MIGHT BECOME DISORIENTED IN THE FOG AND EMERGE ON A
COLLISION COURSE.  AND FOR THAT REASON THE SANTA MARIA SHOULD NOT HAVE
BEEN PROCEEDING AT A RATE IN EXCESS OF THE SPEED WHICH WOULD ALLOWED
HER TO STOP IN HALF THE DISTANCE AHEAD.  THE TUG EMERGED FROM THE FOG
AND CUT DIRECTLY ACROSS THE PATH OF THE TANKER, APPROXIMATELY 900 FEET
AHEAD.  BUT SURELY THE HALF-DISTANCE RULE DOES NOT APPLY ONLY TO HEAD
ON COLLISIONS.  SEE THE SILVER PALM, 94 F.2D 754.  MOREOVER, THE TANKER
HERE SHOULD NOT BE ANY LESS AT FAULT BECAUSE THE TUG EMERGED
TANGENTIALLY TO HER COURSE RATHER THAN ON A HEAD-ON COLLISION COURSE. 
IF THE TUG HAD ALTERED HER COURSE IN THE FOG AND EMERGED STEAMING HEAD
ON INTO THE TANKER RATHER THAN ACROSS HER COURSE-- WHICH WOULD HAVE
BEEN QUITE POSSIBLE SINCE THE CHANNEL WAS ONLY 500 FEET WIDE AT THIS
POINT-- THE SANTA MARIA WOULD STILL HAVE HAD TO STOP WITHIN 450 FEET. 
SINCE THE TUG WAS NOT CLOSING THE DISTANCE BETWEEN THE VESSELS, THE
TANKER ACTUALLY HAD MORE DISTANCE WITHIN WHICH TO STOP THAN SHE WOULD
HAVE HAD IF THE TUG HAD FOLLOWED A MORE ORTHODOX COLLISION COURSE.  THE
HALF-DISTANCE RULE CANNOT MEAN THAT A SHIP CAN TRAVEL IN THE DIRECTION
OF A FOG BANK, OBLIVIOUS TO THE POSSIBILITY THAT ANOTHER VESSEL MIGHT
BECOME LOST THERE AND STEAM OUT ACROSS OR INTO THE FIRST VESSEL'S
PATH. 

CONCEPTS SUCH AS "REASONABLE EXPECTANCY," "ANTICIPATED POSSIBILITY,"
AND "REASONABLE POSSIBILITY," DO LITTLE SERVICE TO THE HALF-DISTANCE
RULE.  "(THE GENIUS OF THE RULES FOR PREVENTION OF COLLISION IS THEIR
CERTAINTY."  HESS SHIPPING CORP. V. S.S. CHARLES LYKES, 417 F.2D 346,
351 (BROWN, J., DISSENTING).  THE HALF-DISTANCE RULE IS EFFECTIVE
PRECISELY BECAUSE IT IS A MEASURABLE RULE OF THUMB, A NAUTICAL SPEED
LIMIT.  SPEED LIMITS WOULD SERVE NO USEFUL PURPOSE IF THEY APPLIED ONLY
WHEN THERE WAS A FORESEEABLE PROBABILITY THAT AN ACCIDENT MIGHT OCCUR. 

SINCE I CANNOT SAY THAT THE COURT OF APPEALS FOR THE NINTH CIRCUIT
INCORRECTLY CONCLUDED THAT THE SANTA MARIA HAD VIOLATED THE HALF
DISTANCE RULE, AND THAT SHE WAS UNABLE TO PROVE THAT HER FAULT COULD
NOT HAVE CONTRIBUTED TO THE COLLISION, I WOULD REACH THE QUESTION THAT
WE GRANTED CERTIORARI IN THIS CASE TO CONSIDER-- THE CONTINUED VALIDITY
OF THE DIVIDED-DAMAGES RULE.  THE COURT, HOWEVER, DOES NOT ADDRESS THAT
QUESTION, AND I THEREFORE REFRAIN FROM EXPRESSING MY VIEWS UPON IT. 

/1/  SEE THE PENNSYLVANIA, 19 WALL.  125, 136; O/Y FINLAYSON-FORSSA
A/B V. PAN ATLANTIC S.S. CORP., 259 F.2D 11, 22. 

/2/ "THE GENERAL CONSENSUS OF OPINION IN THIS COUNTRY IS TO THE
EFFECT THAT A STEAMER IS BOUND TO USE ONLY SUCH PRECAUTIONS AS WILL
ENABLE HER TO STOP IN TIME TO AVOID A COLLISION, AFTER THE APPROACHING
VESSEL COMES IN SIGHT, PROVIDED SUCH APPROACHING VESSEL IS HERSELF
GOING AT THE MODERATE SPEED REQUIRED BY LAW."  THE UMBRIA, 166 U.S.
404, 417. 

/3/  THE DISTRICT COURT APPEARS TO HAVE ASSUMED AS MUCH: 

"IT IS MY VIEW THAT ANY POSSIBLE VIOLATION OF ARTICLE 16 OF THE
INLAND RULES BY THE SS SANTA MARIA, OR THOSE IN CHARGE OF HER
NAVIGATION, WERE TECHNICAL IN NATURE AND WERE NOT A CONTRIBUTING CAUSE
OF THE COLLISION."  304 F.SUPP.  519, 522. 

KENNETH E. ROBERTS ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

ERSKINE B. WOOD ARGUED THE CAUSE AND FILED BRIEFS FOR RESPONDENTS. 
..END :























EVCO V. JONES, 409 U.S. 91 


       EVCO, DBA EVCO INSTRUCTIONAL DESIGNS V. JONES, COMMISSIONER

           OF BUREAU OF REVENUE OF NEW MEXICO, ET AL.

        CERTIORARI TO THE COURT OF APPEALS OF NEW MEXICO

        NO. 71-857.  ARGUED NOVEMBER 8, 1972-- DECIDED DECEMBER 4,

           1972 


PROCEEDS FROM TRANSACTIONS WHEREBY PETITIONER CREATES AND DESIGNS
REPRODUCIBLE INSTRUCTIONAL MATERIALS IN NEW MEXICO FOR DELIVERY UNDER
CONTRACT TO OUT-OF-STATE CLIENS, WHICH THE STATE COURT FOUND INVOLVED
SALES OF TANGIBLE PERSONAL PROPERTY AND NOT SERVICES PERFORMED IN NEW
MEXICO, MAY NOT BE SUBJECTED TO NEW MEXICO'S GROSS RECEIPTS TAX, THE
IMPOSITION OF WHICH UPON SUCH PROCEEDS CONSTITUTES AN IMPERMISSIBLE
BURDEN ON INTERSTATE COMMERCE. 

83 N.M. 110, 488 P.2D 1214, REVERSED. 

PER CURIAM. 

THE PETITIONER, EVCO, IS A NEW MEXICO CORPORATION THAT EMPLOYS
WRITERS, ARTISTS, AND DRAFTSMEN TO CREATE AND DESIGN INSTRUCTIONAL
PROGRAMS.  IT DEVELOPS AN EDUCATIONAL IDEAL INTO A FINISHED PRODUCT
THAT GENERALLY CONSISTS OF REPRODUCIBLE ORIGINALS OF BOOKS, FILMS, AND
MAGNETIC AUDIO TAPES.  TYPICAL OF ITS CONTRACTS IS EVCO'S AGREEMENT
WITH THE DEPARTMENT OF AGRICULTURE TO DEVELOP CAMERA-READY COPIES OF
PROGRAMMED TEXTBOOKS, NOTEBOOKS, AND MANUALS TO BE USED IN AN
ORIENTATION COURSE FOR FOREST ENGINEERS.  EVCO'S CONTRACTS ARE
NEGOTIATED AND ENTERED INTO OUTSIDE NEW MEXICO; IT CREATES THE
REPRODUCIBLE ORIGINALS IN NEW MEXICO, AND THEN DELIVERS THEM TO ITS OUT
OF-STATE CLIENTS.  THE CUSTOMERS IN TURN USE THE ORIGINALS TO PUBLISH
HOWEVER MANY BOOKS AND MANUALS ARE NEEDED TO IMPLEMENT THE
INSTRUCTIONAL PROGRAM. 

THE COMMISSIONER OF REVENUE FOR NEW MEXICO LEVIED THE STATE'S
EMERGENCY SCHOOL TAX AND ITS GROSS RECEIPTS TAX ON THE TOTAL PROCEEDS
EVCO RECEIVED FROM THESE CONTRACTS.  /1/  THE COMPANY APPEALED THIS
ASSESSMENT TO THE COURT OF APPEALS OF NEW MEXICO, ARGUING THAT THESE
TAXES ON OUT-OF-STATE SALES IMPOSED AN UNCONSTITUTIONAL BURDEN ON
INTERSTATE COMMERCE IN VIOLATION OF ART. I, SEC. 8, OF THE
CONSTITUTION.  THAT COURT FOUND THAT THOUGH THE TAXES WERE IMPOSED ON
THE PROCEEDS OF OUT-OF-STATE SALES OF TANGILBE PERSONAL PROPERTY,
RATHER THAN ON THE RECEIPTS FROM SALES OF SERVICES, SUCH TAXES WERE NOT
AN UNCONSTITUTIONAL BURDEN ON COMMERCE.  81 N.M. 724, 472 P.2D 987. 
/2/  THE SUPREME COURT OF NEW MEXICO DECLINED TO REVIEW THE JUDGMENT. 

IN HIS BRIEF IN OPPOSITION TO THE PETITION FOR CERTIORARI, WHICH
SOUGHT OUR REVIEW OF THAT JUDGMENT, THE ATTORNEY GENERAL OF NEW MEXICO
CONCEDED THAT THE STATE COULD NOT TAX THE RECEIPTS FROM SALES OF
TANGIBLE PERSONAL PROPERTY OUTSIDE THE STATE.  WE GRANTED CERTIORARI,
VACATED THE JUDGMENT, AND REMANDED THE CASE TO THE COURT OF APPEALS FOR
RECONSIDERATION IN LIGHT OF THE POSITION TAKEN BY THE ATTORNEY
GENERAL.  402 U.S. 969. 

ON REMAND, THE COURT OF APPEALS ADHERED TO ITS PRIOR FINDINGS THAT
THESE TAXES WERE IMPOSED ON OUT-OF-STATE SALES OF TANGIBLE PERSONAL
PROPERTY, NOT SERVICES, BUT IT CONCLUDED THAT THE CONSTITUTIONALITY OF
THE TAXES SHOULD NOT DEPEND ON THAT DISTINCTION.  IT REINSTATED AND
REAFFIRMED ITS PRIOR OPINION FINDING THE TAXES CONSTITUTIONAL.  83 N.M.
110, 488 P.2D 1214.  THE SUPREME COURT OF NEW MEXICO AGAIN DECLINED TO
REVIEW THE CASE, AND WE GRANTED CERTIORARI.  405 U.S. 953. 

OUR PRIOR CASES INDICATE THAT A STATE MAY TAX THE PROCEEDS FROM
SERVICES PERFORMED IN THE TAXING STATE, EVEN THOUGH THEY ARE SOLD TO
PURCHASERS IN ANOTHER STATE.  HENCE, IN DEPARTMENT OF TREASURY V.
INGRAM-RICHARDSON MFG. CO., 313 U.S. 252, THE COURT UPHELD A STATE
GROSS INCOME TAX IMPOSED ON A TAXPAYER ENGAGED IN THE PROCESS OF
ENAMELING METAL PARTS FOR ITS CUSTOMERS.  WE ACCEPTED THE FINDING OF
THE COURT BELOW THAT THIS WAS A TAX ON INCOME DERIVED FROM SERVICES,
NOT FROM THE SALES OF FINISHED PRODUCTS, AND WE FOUND IRRELEVANT THE
FACT THAT THE SALES WERE MADE TO OUT-OF-STATE CUSTOMERS.  THE TAX WAS
VALIDLY IMPOSED ON THE SERVICE PERFORMED IN THE TAXING STATE.  SEE ALSO
WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250. 

BUT A TAX LEVIED ON THE GROSS RECEIPTS FROM THE SALES OF TANGIBLE
PERSONAL PROPERTY IN ANOTHER STATE IS AN IMPERMISSIBLE BURDEN ON
COMMERCE.  IN J. D. ADAMS MFG. CO. V. STOREN, 304 U.S. 307, WE REJECTED
AS UNCONSTITUTIONAL A STATE'S ATTEMPT TO IMPOSE A GROSS RECEIPTS TAX ON
A TAXPAYER'S SALES OF ROAD MACHINERY TO OUT-OF-STATE CUSTOMERS. 

 "THE VICE OF THE STATUTE AS APPLIED TO RECEIPTS FROM INTERSTATE

  SALES IS THAT THE TAX INCLUDES IN ITS MEASURE, WITHOUT

  APPORTIONMENT, RECEIPTS DERIVED FROM ACTIVITIES IN INTERSTATE

  COMMERCE; AND THAT THE EXACTION IS OF SUCH A CHARACTER THAT IF

  LAWFUL IT MAY IN SUBSTANCE BE LAID TO THE FULLEST EXTENT BY

  STATES IN WHICH THE GOODS ARE SOLD AS WELL AS THOSE IN WHICH THEY

  ARE MANUFACTURED.  INTERSTATE COMMERCE WOULD THUS BE SUBJECTED TO

  THE RISK OF A DOUBLE TAX BURDEN TO WHICH INTRASTATE COMMERCE IS

  NOT EXPOSED, AND WHICH THE COMMERCE CLAUSE FORBIDS."  ID., AT

  311. 

SEE ALSO GWIN, WHITE & PRINCE, INC. V. HENNEFORD, 305 U.S. 434. 

AS ON THE PREVIOUS PETITION FOR CERTIORARI, BOTH PARTIES ACCEPT
THESE PROPOSITIONS, AND BOTH AGREE THAT IF THE FINDINGS OF THE COURT OF
APPEALS OF NEW MEXICO ARE ACCEPTED, ITS JUDGMENT MUST BE REVERSED. 

THE ONLY REAL DISPUTE BETWEEN THE PARTIES CENTERS ON THE FACTUAL
QUESTION OF THE NATURE AND EFFECT OF THE TAXES.  THE STATE CONTENDS
THAT THESE TAXES WERE ACTUALLY IMPOSED ON THE RECEIPTS FROM SERVICES
PERFORMED IN THE STATE, NOT ON THE INCOME FROM THE SALE OF PROPERTY
OUTSIDE THE STATE.  IT ARGUES THAT THE OUT-OF-STATE PURCHASERS ACTUALLY
PAID FOR THE EDUCATIONAL PROGRAMS DEVELOPED IN NEW MEXICO, NOT FOR THE
CAMERA-READY COPIES THAT WERE ONLY INCIDENTAL TO THE SERVICES
PURCHASED.  BUT THE COURT OF APPEALS REJECTED THIS INTERPRETATION OF
THE FACTS.  IT FOUND IN EFFECT THAT THE REPRODUCIBLE ORIGINALS WERE THE
SINE QUA NON OF THE CONTRACT AND THAT IT WAS THE SALE OF THAT TANGIBLE
PERSONAL PROPERTY IN ANOTHER STATE THAT NEW MEXICO HAD TAXED.  "THERE
ARE NO EXCEPTIONAL CIRCUMSTANCES OF ANY KIND THAT WOULD JUSTIFY US IN
REJECTING THE . . . COURT'S FINDINGS; THEY ARE NOT WITHOUT FACTUAL
FOUNDATION, AND WE ACCEPT THEM."  LLOYD A. FRY ROOFING CO. V. WOOD, 344
U.S. 157, 160.  SEE ALSO GRAYSON V. HARRIS, 267 U.S. 352, 357-358;
PORTLAND RAILWAY, LIGHT & POWER CO. V. RAILROAD COMM'N, 229 U.S. 397,
411-412. 

ACCORDINGLY, SINCE THE COURT OF APPEALS APPROVED THE IMPOSITION OF A
TAX ON THE PROCEEDS OF THE OUT-OF-STATE SALES OF TANGIBLE PERSONAL
PROPERTY, ITS JUDGMENT IS

   REVERSED. 

/1/  TAXES WERE ASSESSED FOR THE PERIOD JANUARY 1, 1966, THROUGH
DECEMBER 31, 1968.  FROM JANUARY 1, 1966, THROUGH JUNE 30, 1967, THE
PETITIONER'S RECEIPTS WERE SUBJECT TO THE EMERGENCY SCHOOL TAX ACT. 
N.M. STAT. ANN. SECS. 72-16-2 TO 72-16-19, 1953 COMPILATION, REPEALED
BY N. M. LAWS 1966, C. 47, SEC. 22.  FROM JULY 1, 1967, THROUGH
DECEMBER 31, 1968, THE REMAINDER OF THE TAXABLE PERIOD, EVCO'S RECEIPTS
WERE TAXED UNDER THE GROSS RECEPTS AND COMPENSATING TAX ACT.  N.M.
STAT. ANN. SECS. 72-16A-1 TO 72-16A-19, 1953 COMPILATION (SUPP. 1971). 

/2/  THE COURT DID FIND, HOWEVER, THAT THE RECEIPTS FROM SALES OF
TANGIBLE PERSONAL PROPERTY TO GOVERNMENT AGENCIES AND CERTAIN SPECIFIED
ORGANIZATIONS WERE STATUTORILY EXEMPTED FROM TAXATION.  THOSE SPECIFIC
EXEMPTIONS ARE NOT AT ISSUE HERE. 

KENDALL O. SCHLENKER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS JAMES M. PARKER. 

JOHN C. COOK, ASSISTANT ATTORNEY GENERAL OF NEW MEXICO, ARGUED THE
CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WAS DAVID L. NORVELL,
ATTORNEY GENERAL. 
..END :






WEBB V. TEXAS, 409 U.S. 95 


       WEBB V. TEXAS

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

           APPEALS OF TEXAS

        NO. 71-6647.  DECIDED DECEMBER 4, 1972 


TRIAL COURT'S EXTENDED ADMONITION TO PETITIONER'S ONLY WITNESS TO
REFRAIN FROM LYING, COUPLED WITH THREATS OF DIRE CONSEQUENCES IF
WITNESS DID LIE, EFFECTIVELY DISCOURAGED THE WITNESS FROM TESTIFYING AT
ALL AND DEPRIVED PETITIONER OF DUE PROCESS OF LAW BY DENYING HIM THE
OPPORTUNITY TO PRESENT WITNESSES IN HIS OWN DEFENSE. 

CERTIORARI GRANTED; 480 S.W.2D 398, REVERSED. 

PER CURIAM. 

THE PETITIONER WAS CONVICTED OF BURGLARY IN THE CRIMINAL DISTRICT
COURT OF DALLAS COUNTY, TEXAS, AND WAS SENTENCED TO A TERM OF
IMPRISONMENT FOR 12 YEARS.  HE APPEALED, RAISING SEVERAL CLAIMS OF
ERROR, AMONG THEM AN ALLEGATION THAT THE TRIAL COURT HAD VIOLATED HIS
CONSTITUTIONAL RIGHTS BY "THREATENING AND HARASSING" THE SOLE WITNESS
FOR HIS DEFENSE, SO THAT THE WITNESS REFUSED TO TESTIFY.  THE COURT OF
CRIMINAL APPEALS OF TEXAS AFFIRMED HIS CONVICTION, 480 S.W.2D 398
(1972).  WE GRANT THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND
THE PETITION FOR A WRIT OF CERTIORARI AND REVERSE THE PETITIONER'S
CONVICTION. 

THE RECORD SHOWS THAT, AFTER THE PROSECUTION HAD RESTED ITS CASE,
THE JURY WAS TEMPORARILY EXCUSED.  DURING THIS RECESS, THE PETITIONER
CALLED HIS ONLY WITNESS, LESLIE MAX MILLS, WHO HAD A PRIOR CRIMINAL
RECORD AND WAS THEN SERVING A PRISON SENTENCE.  AT THIS POINT, THE
TRIAL JUDGE, ON HIS OWN INITIATIVE, UNDERTOOK TO ADMONISH THE WITNESS
AS FOLLOWS: 

"NOW YOU HAVE BEEN CALLED DOWN AS A WITNESS IN THIS CASE BY THE
DEFENDANT.  IT IS THE COURT'S DUTY TO ADMONISH YOU THAT YOU DON'T HAVE
TO TESTIFY, THAT ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU.  IF
YOU TAKE THE WITNESS STAND AND LIE UNDER OATH, THE COURT WILL
PERSONALLY SEE THAT YOUR CASE GOES TO THE GRAND JURY AND YOU WILL BE
INDICTED FOR PERJURY AND THE LIKLIHOOD (SIC) IS THAT YOU WOULD GET
CONVICTED OF PERJURY AND THAT IT WOULD BE STACKED ONTO WHAT YOU HAVE
ALREADY GOT, SO THAT IS THE MATTER YOU HAVE GOT TO MAKE UP YOUR MIND
ON.  IF YOU GET ON THE WITNESS STAND AND LIE, IT IS PROBABLY GOING TO
MEAN SEVERAL YEARS AND AT LEAST MORE TIME THAT YOU ARE GOING TO HAVE TO
SERVE.  IT WILL ALSO BE HELD AGAINST YOU IN THE PENITENTIARY WHEN
YOU'RE UP FOR PAROLE AND THE COURT WANTS YOU TO THOROUGHLY UNDERSTAND
THE CHANCES YOU'RE TAKING BY GETTING ON THAT WITNESS STAND UNDER OATH. 
YOU MAY TELL THE TRUTH AND IF YOU DO, THAT IS ALL RIGHT, BUT IF YOU LIE
YOU CAN GET INTO REAL TROUBLE.  THE COURT WANTS YOU TO KNOW THAT.  YOU
DON'T OWE ANYBODY ANYTHING TO TESTIFY AND IT MUST BE DONE FREELY AND
VOLUNTARILY AND WITH THE THOROUGH UNDERSTANDING THAT YOU KNOW THE
HAZARD YOU ARE TAKING." 

THE PETITIONER'S COUNSEL OBJECTED TO THESE COMMENTS, ON THE GROUND
THAT THE JUDGE WAS EXERTING ON THE MIND OF THE WITNESS SUCH DURESS THAT
THE WITNESS COULD NOT FREELY AND VOLUNTARILY DECIDE WHETHER OR NOT TO
TESTIFY IN THE PETITIONER'S BEHALF, AND WAS THEREBY DEPRIVING THE
PETITIONER OF HIS DEFENSE BY COERCING THE ONLY DEFENSE WITNESS INTO
REFUSING TO TESTIFY.  COUNSEL POINTED OUT THAT NONE OF THE WITNESSES
FOR THE STATE HAD BEEN SO ADMONISHED.  WHEN THE PETITIONER'S COUNSEL
THEN INDICATED THAT HE WAS NONETHELESS GOING TO ASK THE WITNESS TO TAKE
THE STAND, THE JUDGE INTERRUPTED:  "COUNSEL, YOU CAN STATE THE FACTS,
NOBODY IS GOING TO DISPUTE IT.  LET HIM DECLINE TO TESTIFY."  THE
WITNESS THEN REFUSED TO TESTIFY FOR ANY PURPOSE AND WAS EXCUSED BY THE
COURT.  THE PETITIONER'S SUBSEQUENT MOTION FOR A MISTRIAL WAS
OVERRULED. 

ON APPEAL, THE PETITIONER ARGUED THAT THE JUDGE'S CONDUCT INDICATED
A BIAS AGAINST THE PETITIONER AND DEPRIVED HIM OF DUE PROCESS OF LAW BY
DRIVING HIS SOLE WITNESS OFF THE WITNESS STAND.  THE COURT OF CRIMINAL
APPEALS REJECTED THIS CONTENTION, STATING THAT, WHILE IT DID NOT
CONDONE THE MANNER OF THE ADMONITION, THE PETITIONER HAD MADE NO
OBJECTION UNTIL THE ADMONITION WAS COMPLETED, AND THERE WAS NO SHOWING
THAT THE WITNESS HAD BEEN INTIMIDATED BY THE ADMONITION OR HAD REFUSED
TO TESTIFY BECAUSE OF IT. 

WE CANNOT AGREE.  THE SUGGESTION THAT THE PETITIONER OR HIS COUNSEL
SHOULD HAVE INTERRUPTED THE JUDGE IN THE MIDDLE OF HIS REMARKS TO
OBJECT IS, ON THIS RECORD, NOT A BASIS TO GROUND A WAIVER OF THE
PETITIONER'S RIGHTS.  THE FACT THAT MILLS WAS WILLING TO COME TO COURT
TO TESTIFY IN THE PETITIONER'S BEHALF, REFUSING TO DO SO ONLY AFTER THE
JUDGE'S LENGTHY AND INTIMIDATING WARNING, STRONGLY SUGGESTS THAT THE
JUDGE'S COMMENTS WERE THE CAUSE OF MILLS' REFUSAL TO TESTIFY. 

THE TRIAL JUDGE GRATUITOUSLY SINGLED OUT THIS ONE WITNESS FOR A
LENGTHY ADMONITION ON THE DANGERS OF PERJURY.  BUT THE JUDGE DID NOT
STOP AT WARNING THE WITNESS OF HIS RIGHT TO REFUSE TO TESTIFY AND OF
THE NECESSITY TO TELL THE TRUTH.  /1/  INSTEAD, THE JUDGE IMPLIED THAT
HE EXPECTED MILLS TO LIE, AND WENT ON TO ASSURE HIM THAT IF HE LIED, HE
WOULD BE PROSECUTED AND PROBABLY CONVICTED FOR PERJURY, THAT THE
SENTENCE FOR THAT CONVICTION WOULD BE ADDED ON TO HIS PRESENT SENTENCE,
AND THAT THE RESULT WOULD BE TO IMPAIR HIS CHANCES FOR PAROLE.  AT
LEAST SOME OF THESE THREATS MAY HAVE BEEN BEYOND THE POWER OF THIS
JUDGE TO CARRY OUT.  YET, IN THE LIGHT OF THE GREAT DISPARITY BETWEEN
THE POSTURE OF THE PRESIDING JUDGE AND THAT OF A WITNESS IN THESE
CIRCUMSTANCES, THE UNNECESSARILY STRONG TERMS USED BY THE JUDGE COULD
WELL HAVE EXERTED SUCH DURESS ON THE WITNESS' MIND AS TO PRECLUDE HIM
FROM MAKING A FREE AND VOLUNTARY CHOICE WHETHER OR NOT TO TESTIFY. 

IN WASHINGTON V. TEXAS, 388 U.S. 14, 19 (1967), WE STATED: 

"THE RIGHT TO OFFER THE TESTIMONY OF WITNESSES, AND TO COMPEL THEIR
ATTENDANCE, IF NECESSARY, IS IN PLAIN TERMS THE RIGHT TO PRESENT A
DEFENSE, THE RIGHT TO PRESENT THE DEFENDANT'S VERSION OF THE FACTS AS
WELL AS THE PROSECUTION'S TO THE JURY SO IT MAY DECIDE WHERE THE TRUTH
LIES.  JUST AS AN ACCUSED HAS THE RIGHT TO CONFRONT THE PROSECUTION'S
WITNESSES FOR THE PURPOSE OF CHALLENGING THEIR TESTIMONY, HE HAS THE
RIGHT TO PRESENT HIS OWN WITNESSES TO ESTABLISH A DEFENSE.  THIS RIGHT
IS A FUNDAMENTAL ELEMENT OF DUE PROCESS OF LAW." 

IN THE CIRCUMSTANCES OF THIS CASE, WE CONCLUDE THAT THE JUDGE'S
THREATENING REMARKS, DIRECTED ONLY AT THE SINGLE WITNESS FOR THE
DEFENSE, EFFECTIVELY DROVE THAT WITNESS OFF THE STAND, AND THUS
DEPRIVED THE PETITIONER OF DUE PROCESS OF LAW UNDER THE FOURTEENTH
AMENDMENT.  THE ADMONITION BY THE TEXAS COURT OF CRIMINAL APPEALS MIGHT
WELL HAVE GIVEN THE TRIAL JUDGE GUIDANCE FOR FUTURE CASES, BUT IT DID
NOT SERVE TO REPAIR THE INFRINGEMENT OF THE PETITIONER'S DUE PROCESS
RIGHTS UNDER THE FOURTEENTH AMENDMENT. 

ACCORDINGLY, THE JUDGMENT IS

              REVERSED. 

/1/  CF. UNITED STATES V. WINTER, 348 F.2D 204, 210 (1965), WHERE
JUDGE WEINFELD, WRITING FOR THE SECOND CIRCUIT, STATED: "ONCE A WITNESS
SWEARS TO GIVE TRUTHFUL ANSWERS, THERE IS NO REQUIREMENT TO 'WARN HIM
NOT TO COMMIT PERJURY OR, CONVERSELY TO DIRECT HIM TO TELL THE TRUTH.' 
IT WOULD RENDER THE SANCTITY OF THE OATH QUITE MEANINGLESS TO REQUIRE
ADMONITION TO ADHERE TO IT." 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

THE FACTS BEFORE US DO NOT, IN MY OPINION, JUSTIFY THE COURT'S
SUMMARY DISPOSITION.  PETITIONER WEBB (WHO, ON A PRIOR OCCASION, HAD
BEEN CONVICTED ON STILL ANOTHER BURGLARY CHARGE) WAS APPREHENDED BY THE
OWNER OF A LUMBER BUSINESS.  THE OWNER, ARMED WITH HIS SHOTGUN, HAD
DRIVEN TO HIS OFFICE AT THREE O'CLOCK IN THE MORNING UPON THE
ACTIVATION OF A BURGLAR ALARM.  WHEN HE ENTERED THE BUILDING, THE OWNER
OBSERVED A BROKEN WINDOW AND AN ASSORTMENT OF WHAT HE REGARDED AS
BURGLARY TOOLS ON HIS DESK.  WHEN MEN EMERGED FROM AN ADJACENT ROOM, A
GUN FIGHT ENSUED.  TWO INTRUDERS ESCAPED, BUT THE OWNER, DESPITE HIS
HAVING BEEN SHOT TWICE, SUCCEEDED IN HOLDING THE PETITIONER AT GUNPOINT
UNTIL POLICE ARRIVED. 

ALTHOUGH THE ADMONITION GIVEN BY THE STATE TRIAL JUDGE TO THE SOLE
WITNESS PROFFERED BY THE DEFENSE WAS OBVIOUSLY IMPROPER, SUFFICIENT
FACTS HAVE NOT BEEN PRESENTED TO THIS COURT TO DEMONSTRATE THE DEPTH OF
PREJUDICE THAT REQUIRES A SUMMARY REVERSAL.  THE ADMONITION MIGHT PROVE
FAR LESS OFFENSIVE, AND THE CONDUCT OF THE TRIAL JUDGE UNDERSTANDABLE,
IF, FOR EXAMPLE, AS IS INDICATED IN PETITIONER'S BRIEF, P. 8, PREPARED
BY COUNSEL AND FILED WITH THE TEXAS COURT OF CRIMINAL APPEALS, THE
WITNESS WERE KNOWN TO HAVE BEEN CALLED FOR THE PURPOSE OF PRESENTING AN
ALIBI DEFENSE.  AGAINST THE BACKDROP OF BEING CAUGHT ON THE PREMISES
AND OF APPARENTLY OVERWHELMING EVIDENCE OF GUILT, OFFSET ONLY BY A BARE
ALLEGATION OF PREJUDICE, I WOULD DENY THE PETITION FOR CERTIORARI AND,
AS THE COURT SO OFTEN HAS DONE, I WOULD REMIT THE PETITIONER TO THE
RELIEF AVAILABLE TO HIM BY WAY OF A POST-CONVICTION PROCEEDING WITH A
FULL EVIDENTIARY HEARING.  /1/ 

/1/  PETITIONER'S COUNSEL ASSURED THE COURT OF CRIMINAL APPEALS THAT
THE WITNESS WOULD NOT HAVE BEEN CALLED "UNLESS HE HAD BEEN PREVIOUSLY
INTERVIEWED AND FOUND TO BE HELPFUL TO THE APPELLANT'S CAUSE."  BRIEF
FOR APPELLANT ON FIRST MOTION FOR REHEARING 7, WEBB V. TEXAS, 480
S.W.2D 398 (CT. CRIM. APP. TEX. 1972).  AN EVIDENTIARY HEARING WOULD
ALLOW PETITIONER'S TRIAL COUNSEL TO OUTLINE THE TESTIMONY THAT WAS
EXPECTED FROM THE WITNESS. 

A PRIOR TRIAL IS MENTIONED IN THE RECORD.  AN EVIDENTIARY HEARING
MIGHT REVEAL EVENTS AT THE PRIOR TRIAL THAT JUSTIFIED THE TRIAL JUDGE'S
UNUSUAL CONCERN ABOUT POSSIBLE PERJURY. 
..END :








COOL V. UNITED STATES, 409 U.S. 100 


       COOL V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SEVENTH CIRCUIT

        NO. 72-72.  DECIDED DECEMBER 4, 1972 


TRIAL COURT'S "ACCOMPLICE INSTRUCTION," IN EFFECT REQUIRING THE JURY
TO DECIDE THAT A DEFENSE WITNESS' TESTIMONY WAS "TRUE BEYOND A
REASONABLE DOUBT" BEFORE CONSIDERING THAT TESTIMONY, IMPERMISSIBLY
OBSTRUCTED THE RIGHT OF A CRIMINAL DEFENDANT TO PRESENT EXCULPATORY
TESTIMONY OF AN ACCOMPLICE (WASHINGTON V. TEXAS, 388 U.S. 14); AND IT
UNFAIRLY REDUCED THE PROSECUTION'S BURDEN OF PROOF, SINCE IT IS
POSSIBLE THAT THE TESTIMONY WOULD HAVE CREATED A REASONABLE DOUBT IN
THE MINDS OF THE JURY, BUT THAT IT WAS NOT CONSIDERED BECAUSE THE
TESTIMONY ITSELF WAS NOT BELIEVABLE BEYOND A REASONABLE DOUBT.  CF. IN
RE WINSHIP, 397 U.S. 358. 

CERTIORARI GRANTED; 461 F.2D 521, REVERSED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED. 

IN THIS CASE, THE COURT BELOW HELD IN EFFECT THAT IN A CRIMINAL
TRIAL, THE JURY MAY BE INSTRUCTED TO IGNORE DEFENSE TESTIMONY UNLESS IT
BELIEVES BEYOND A REASONABLE DOUBT THAT THE TESTIMONY IS TRUE.  THAT
HOLDING IS FUNDAMENTALLY INCONSISTENT WITH OUR PRIOR DECISIONS IN IN RE
WINSHIP, 397 U.S. 358 (1970), AND WASHINGTON V. TEXAS, 388 U.S. 14
(1967), AND MUST THEREFORE BE REVERSED. 

AFTER A JURY TRIAL, PETITIONER WAS FOUND GUILTY OF POSSESSING AND
CONCEALING, WITH INTENT TO DEFRAUD, COUNTERFEIT OBLIGATIONS OF THE
UNITED STATES.  THE EVIDENCE SHOWED THAT ON JUNE 2, 1970, PETITIONER,
HER HUSBAND, AND ONE ROBERT E. VOYLES WERE TRAVELING TOGETHER BY CAR
BETWEEN ST. LOUIS, MISSOURI, AND BRAZIL, INDIANA.  UPON REACHING
BRAZIL, VOYLES LEFT PETITIONER AND HER HUSBAND AND PASSED TWO
COUNTERFEIT BILLS AT A LOCAL STORE.  HE WAS THEN ARRESTED SHORTLY AFTER
HE ENTERED THE CAR IN WHICH PETITIONER AND HER HUSBAND WERE WAITING. 

AFTER HIS ARREST, VOYLES WAS PLACED IN THE POLICE CAR AND TAKEN TO
THE STATION HOUSE.  PETITIONER AND HER HUSBAND WERE TOLD TO FOLLOW IN
THEIR OWN CAR.  A MR. BAUMUNK TESTIFIED THAT HE SAW PETITIONER THROW A
PAPER SACK OUT OF THE CAR WINDOW AS PETITIONER WAS FOLLOWING THE POLICE
CAR.  THE BAG WAS SUBSEQUENTLY FOUND TO CONTAIN COUNTERFEIT BILLS. 
POLICE ALSO FOUND THREE COUNTERFEIT BILLS CRUMPLED UP UNDER THE RIGHT
SEAT OF PETITIONER'S CAR. 

ALTHOUGH PETITIONER TESTIFIED IN HER OWN DEFENSE, SHE RELIED
PRIMARILY ON THE TESTIMONY OF VOYLES.  VOYLES FREELY ADMITTED HIS OWN
GUILT, /1/  BUT STEADFASTLY INSISTED THAT NEITHER PETITIONER NOR HER
HUSBAND HAD ANYTHING TO DO WITH THE CRIME.  HE TESTIFIED THAT
PETITIONER HAD MERELY AGREED TO GIVE HIM A RIDE AND KNEW NOTHING ABOUT
THE COUNTERFEIT BILLS THAT HE CARRIED WITH HIM.  WHEN THE CAR STOPPED
IN BRAZIL, VOYLES ALLEGEDLY REMOVED SOME OF THE COUNTERFEIT BILLS FROM
HIS SATCHEL WHICH HE KEPT IN PETITIONER'S TRUNK, AND CONCEALED THE REST
OF THE BILLS IN A SACK WHICH HE PLACED UNDER THE FRONT BUMPER BY THE
HEADLIGHT.  THE DEFENSE ARGUED THAT IT WAS THIS SACK THAT BAUMUNK SAW
FALL TO THE GROUND AS PETITIONER DROVE TO THE POLICE STATION.  VOYLES
ALSO STATED THAT AFTER HE HAD REJOINED PETITIONER, HE SAW POLICE
APPROACHING THE CAR AND THREW THE REMAINING BILLS ON HIS PERSON ONTO
THE CAR FLOOR, AGAIN WITHOUT THE KNOWLEDGE OF PETITIONER.  PETITIONER
THUS ASSERTS THAT SHE WAS NOT IN KNOWING POSSESSION OF THE BILLS ON THE
CAR FLOOR. 

WITH THE CASE IN THIS POSTURE, THE GOVERNMENT'S POSITION CLEARLY
DEPENDED UPON ITS ABILITY TO DISCREDIT VOYLES, SINCE HIS TESTIMONY WAS
COMPLETELY EXCULPATORY.  OVER STRENUOUS DEFENSE OBJECTION, /2/  THE
TRIAL JUDGE GAVE THE JURY A LENGTHY "ACCOMPLICE INSTRUCTION" TO BE USED
IN EVALUATING VOYLES' TESTIMONY.  AFTER FIRST DEFINING THE WORD
"ACCOMPLICE" AND WARNING THAT AN ACCOMPLICE'S TESTIMONY IS "OPEN TO
SUSPICION," THE JUDGE MADE THE FOLLOWING STATEMENT:  "HOWEVER, I CHARGE
YOU THAT THE TESTIMONY OF AN ACCOMPLICE IS COMPETENT EVIDENCE AND IT IS
FOR YOU TO PASS UPON THE CREDIBILITY THEREOF.  IF THE TESTIMONY CARRIES
CONVICTION AND YOU ARE CONVINCED IT IS TRUE BEYOND A REASONABLE DOUBT,
THE JURY SHOULD GIVE IT THE SAME EFFECT AS YOU WOULD TO A WITNESS NOT
IN ANY RESPECT IMPLICATED IN THE ALLEGED CRIME AND YOU ARE NOT ONLY
JUSTIFIED, BUT IT IS YOUR DUTY, NOT TO THROW THIS TESTIMONY OUT BECAUSE
IT COMES FROM A TAINTED SOURCE." 

THE CLEAR IMPLICATION OF THIS INSTRUCTION WAS THAT THE JURY SHOULD
DISREGARD VOYLES' TESTIMONY UNLESS IT WAS "CONVINCED IT IS TRUE BEYOND
A REASONABLE DOUBT."  /3/  SUCH AN INSTRUCTION PLACES AN IMPROPER
BURDEN ON THE DEFENSE AND ALLOWS THE JURY TO CONVICT DESPITE ITS
FAILURE TO FIND GUILT BEYOND A REASONABLE DOUBT.  /4/ 

ACCOMPLICE INSTRUCTIONS HAVE LONG BEEN IN USE AND HAVE BEEN
REPEATEDLY APPROVED.  SEE, E.G., HOLMGREN V. UNITED STATES, 217 U.S.
509, 523-524 (1910).  IN MOST INSTANCES, THEY REPRESENT NO MORE THAN A
COMMONSENSE RECOGNITION THAT AN ACCOMPLICE MAY HAVE A SPECIAL INTEREST
IN TESTIFYING, THUS CASTING DOUBT UPON HIS VERACITY.  SEE, E.G.,
CRAWFORD V. UNITED STATES, 212 U.S. 183, 204 (1909).  BUT IN MOST OF
THE RECORDED CASES, THE INSTRUCTION HAS BEEN USED WHEN THE ACCOMPLICE
TURNED STATE'S EVIDENCE AND TESTIFIED AGAINST THE DEFENDANT.  SEE
GENERALLY MCMILLEN V. UNITED STATES, 386 F.2D 29 (CA1 1967), AND CASES
CITED THEREIN.  NO CONSTITUTIONAL PROBLEM IS POSED WHEN THE JUDGE
INSTRUCTS A JURY TO RECEIVE THE PROSECUTION'S ACCOMPLICE TESTIMONY
"WITH CARE AND CAUTION."  SEE, E.G., UNITED STATES V. GEORGE, 319 F.2D
77, 80 (CA6 1963).  CF. UNITED STATES V. NOLTE, 440 F.2D 1124 (CA5
1971). 

BUT THERE IS AN ESSENTIAL DIFFERENCE BETWEEN INSTRUCTING A JURY ON
THE CARE WITH WHICH IT SHOULD SCRUTINIZE CERTAIN EVIDENCE IN
DETERMINING HOW MUCH WEIGHT TO ACCORD IT AND INSTRUCTING A JURY, AS THE
JUDGE DID HERE, THAT AS A PREDICATE TO THE CONSIDERATION OF CERTAIN
EVIDENCE, IT MUST FIND IT TRUE BEYOND A REASONABLE DOUBT. 

IN WASHINGTON V. TEXAS, SUPRA, WE HELD THAT A CRIMINAL DEFENDANT HAS
A SIXTH AMENDMENT RIGHT TO PRESENT TO THE JURY EXCULPATORY TESTIMONY OF
AN ACCOMPLICE.  THE INSTRUCTION GIVEN BELOW IMPERMISSIBLY OBSTRUCTS THE
EXERCISE OF THAT RIGHT BY TOTALLY EXCLUDING RELEVANT EVIDENCE UNLESS
THE JURY MAKES A PRELIMINARY DETERMINATION THAT IT IS EXTREMELY
RELIABLE. 

MOREOVER, THE INSTRUCTION ALSO HAS THE EFFECT OF SUBSTANTIALLY
REDUCING THE GOVERNMENT'S BURDEN OF PROOF.  WE HELD IN IN RE WINSHIP,
SUPRA, THAT THE CONSTITUTION REQUIRES PROOF OF GUILT BEYOND A
REASONABLE DOUBT.  IT IS POSSIBLE THAT VOYLES' TESTIMONY WOULD HAVE
CREATED A REASONABLE DOUBT IN THE MINDS OF THE JURY, BUT THAT IT WAS
NOT CONSIDERED BECAUSE THE TESTIMONY ITSELF WAS NOT BELIEVABLE BEYOND A
REASONABLE DOUBT.  BY CREATING AN ARTIFICIAL BARRIER TO THE
CONSIDERATION OF RELEVANT DEFENSE TESTIMONY PUTATIVELY CREDIBLE BY A
PREPONDERANCE OF THE EVIDENCE, THE TRIAL JUDGE REDUCED THE LEVEL OF
PROOF NECESSARY FOR THE GOVERNMENT TO CARRY ITS BURDEN.  INDEED, WHERE,
AS HERE, THE DEFENDANT'S CASE RESTS ALMOST ENTIRELY ON ACCOMPLICE
TESTIMONY, THE EFFECT OF THE JUDGE'S INSTRUCTIONS IS TO REQUIRE THE
DEFENDANT TO ESTABLISH HIS INNOCENCE BEYOND A REASONABLE DOUBT. 

BECAUSE SUCH A REQUIREMENT IS PLAINLY INCONSISTENT WITH THE
CONSTITUTIONALLY ROOTED PRESUMPTION OF INNOCENCE, THE CONVICTION MUST
BE REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  AT THE TIME OF HIS TESTIMONY, VOYLES HAD ALREADY PLEADED GUILTY
TO A CHARGE OF COMPLICITY IN THE POSSESSION AND CONCEALMENT OF
COUNTERFEIT NOTES. 

/2/  THE DISSENT SUGGESTS THAT THE DEFENDANT OBJECTED TO THE
ACCOMPLICE INSTRUCTION SOLELY ON THE GROUND THAT USE OF THE WORD
"ACCOMPLICE" SUGGESTED THAT THE DEFENDANT WAS GUILTY.  ALTHOUGH THE
DEFENSE OBJECTION WAS NOT A MODEL OF CLARITY, IT SEEMS APPARENT THAT IT
WAS GROUNDED MORE BROADLY ON THE TRIAL JUDGE'S DECISION TO GIVE THE
STANDARD ACCOMPLICE INSTRUCTION DESPITE THE FACT THAT THE ACCOMPLICE
WAS A DEFENSE WITNESS.  THE DEFENSE ATTORNEY STATED:  "I TAKE EXCEPTION
TO INSTRUCTION NO. 16, AS IT'S MISLEADING.  I DON'T THINK IT BELONGS IN
THIS CAUSE.  THERE WAS NO ACCOMPLICE TESTIFIED (SIC) FOR THE
GOVERNMENT, AND THIS COULD MISLEAD THEM AS TO THE PERSON WHO WAS
ACCUSED OF THIS CRIME AND HAS ALREADY PLED GUILTY, AS MAKING AN
ACCOMPLICE OF HIM, WHEN ACTUALLY HE IS NOT AN ACCOMPLICE, BECAUSE THEY
ARE NOT INVOLVED IN THE CRIME."  CERTAINLY, THE TRIAL JUDGE UNDERSTOOD
THIS OBJECTION TO BE DIRECTED TO HIS DECISION TO GIVE THE STANDARD
CAUTIONARY INSTRUCTION EVEN THOUGH THE ALLEGED ACCOMPLICE WAS CALLED BY
THE DEFENDANT.  IN COLLOQUY WITH THE DEFENSE ATTORNEY, THE JUDGE
STATED:  "THE NEXT, 'ACCOMPLICE,' THE EVIDENCE OF BOTH THE GOVERNMENT
AND THE DEFENDANTS MAY BE CONSIDERED BY THE JURY IN DETERMINING THE
GUILT OR INNOCENCE, NO MATTER WHO PRODUCES THE WITNESS . . .  NOW
THERE'S A LOT OF INFERENCES CAN BE DRAWN FROM ONE ITEM OF EVIDENCE OR
ANOTHER, AND THAT'S FOR THE JURY TO DECIDE.  SO LONG AS THERE IS SOME
EVIDENCE, THE INSTRUCTION MUST BE GIVEN.  IT HITS BOTH WAYS ON THAT
POINT."  NOR DID THE COURT OF APPEALS INDICATE ANY DOUBT THAT
DEFENDANT'S OBJECTION WAS SUFFICIENT TO PRESERVE THE POINT ON APPEAL. 

/3/  TRUE, THE INSTRUCTION WAS COUCHED IN POSITIVE TERMS.  IT TOLD
THE JURY TO CONSIDER THE EVIDENCE IF IT BELIEVED IT TRUE BEYOND A
REASONABLE DOUBT.  BUT THE STATEMENT CONTAINED A NEGATIVE PREGNANT AS
WELL.  THERE IS AN UNACCEPTABLE RISK THAT JURORS MIGHT HAVE THOUGHT
THEY WERE TO REJECT THE EVIDENCE-- "THROW (IT) OUT," IN THE WORDS OF
THE TRIAL JUDGE-- IF THEY HAD A REASONABLE DOUBT AS TO ITS VERACITY. 

/4/  IN THE NEXT PARAGRAPH OF HIS INSTRUCTION, THE JUDGE STATED:  "I
FURTHER INSTRUCT YOU THAT TESTIMONY OF AN ACCOMPLICE MAY ALONE AND
UNCORROBORATED SUPPORT YOUR VERDICT OF GUILTY OF THE CHARGES IN THE
INDICTMENT IF BELIEVED BY YOU TO PROVE BEYOND A REASONABLE DOUBT THE
ESSENTIAL ELEMENTS OF THE CHARGES IN THE INDICTMENT AGAINST THE
DEFENDANTS."  IN LIGHT OF THE FACT THAT THE ONLY ACCOMPLICE TESTIMONY
IN THE CASE WAS EXCULPATORY, THIS INSTRUCTION WAS CONFUSING TO SAY THE
LEAST.  BUT EVEN IF IT IS ASSUMED THAT VOYLES' TESTIMONY WAS TO SOME
EXTENT INCULPATORY, THIS INSTRUCTION WAS STILL FUNDAMENTALLY UNFAIR IN
THAT IT TOLD THE JURY THAT IT COULD CONVICT SOLELY ON THE BASIS OF
ACCOMPLICE TESTIMONY WITHOUT TELLING IT THAT IT COULD ACQUIT ON THIS
BASIS.  EVEN HAD THERE BEEN NO OTHER ERROR, THE CONVICTION WOULD HAVE
TO BE REVERSED ON THE BASIS OF THIS INSTRUCTION ALONE. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN CONCUR, DISSENTING. 

I BELIEVE THAT THE COURT'S FINE-SPUN PARSING OF THE TRIAL JUDGE'S
CHARGE TO THE JURY TURNS THE APPELLATE REVIEW OF THIS CASE INTO THE
SORT OF "QUEST FOR ERROR" WHICH WAS SAID IN BIHN V. UNITED STATES, 328
U.S. 633, 638 (1946), TO BE FORBIDDEN BY RULE 52(A) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE, /1/  AND BY 28 U.S.C. 2111.  /2/ 

THE TESTIMONY OF THE WITNESS VOYLES, CALLED BY PETITIONER AS A
WITNESS IN HER BEHALF, PRESENTED THE TRIAL JUDGE WITH SOMETHING OF A
DILEMMAN IN DETERMINING HOW HE SHOULD CHARGE THE JURY.  MUCH OF VOYLES'
TESTIMONY TENDED TO EXCULPATE PETITIONER, BUT THERE WERE SIGNIFICANT
ASPECTS OF IT THAT DID NOT.  HE SUBSTANTIATED THE FACT THAT THE
PETITIONER AND HER HUSBAND /3/  HAD TRAVELED WITH HIM FROM ST. LOUIS TO
BRAZIL, INDIANA.  HE CORROBORATED PROSECUTION EVIDENCE THAT BOTH
PETITIONER AND HER HUSBAND GAVE THE SAME FALSE LAST NAME OF GIBBS WHEN
BOOKED AT THE POLICE STATION IN BRAZIL.  HE ALSO SUGGESTED A CLOSENESS
TO PETITIONER'S HUSBAND WHICH WAS SCARCELY HELPFUL TO THEIR DEFENSE
WHEN HE TESTIFIED THAT "I WAS A LITTLE SORE AT MIKE (PETITIONER'S
HUSBAND), BECAUSE I THOUGHT MIKE SHOULD HELP ME (GET OUT ON BOND)." 

THE TRIAL JUDGE MADE CLEAR IN HIS COLLOQUY WITH COUNSEL, WHILE
DEALING WITH THEIR OBJECTIONS TO THE CHARGE, THAT HE WAS CONCERNED
ABOUT THE AMBIVALENCE OF VOYLES' TESTIMONY AND FELT IT NECESSARY TO
GIVE THE CHARGE RELATING TO ACCOMPLICES.  PETITIONER'S COUNSEL IN
OBJECTING TO THAT PORTION OF THE CHARGE DID SO ON A QUITE DIFFERENT
GROUND FROM THAT NOW SUSTAINED BY THE COURT; THE GROUND OF OBJECTION
STATED TO THE TRIAL COURT WAS APPARENTLY THAT THE MENTION OF THE TERM
"ACCOMPLICE" TO THE JURY SUGGESTED THAT PETITIONER AND HER HUSBAND WERE
IN FACT GUILTY.  SUCH A GROUND OF OBJECTION WAS WHOLLY WITHOUT MERIT,
SINCE, AS THE COURT OF APPEALS POINTED OUT IN ITS OPINION IN THIS CASE,
THE INSTRUCTION LEFT IT ENTIRELY TO THE JURY TO DETERMINE WHETHER OR
NOT THE FACTS EXISTED THAT WOULD MAKE VOYLES AN ACCOMPLICE. 

THE TRIAL COURT GAVE 36 SEPARATE INSTRUCTIONS TO THE JURY, WHICH
COVERED SOME 52 PAGES OF THE TRANSCRIPT IN THIS CASE.  THE INSTRUCTION
IN QUESTION COVERS TWO PAGES, AND THE COURT REVERSES THE CONVICTION ON
THE BASIS OF ONE SENTENCE IN THAT ONE INSTRUCTION.  THE TRIAL JUDGE
REPEATEDLY EMPHASIZED TO THE JURY THAT THE GOVERNMENT WAS OBLIGATED TO
PROVE GUILT BEYOND A REASONABLE DOUBT.  TYPICAL IS THE FOLLOWING
STATEMENT, WHICH IS REPEATED THROUGHOUT THE INSTRUCTIONS IN AT LEAST
HALF A DOZEN PLACES: 

"THE ENTIRE BURDEN OF PROOF IS UPON THE GOVERNMENT FROM THE
BEGINNING TO THE END OF THE TRIAL AND THIS BURDEN OF PROOF NEVER SHIFTS
FROM THE GOVERNMENT TO THE DEFENDANTS, AND THE DEFENDANTS ARE NOT BOUND
TO PROVE THEIR INNOCENCE, OFFER ANY EXCUSE, OR EXPLAIN ANYTHING . . .
" 

THE RECORD BEFORE US DOES NOT INDICATE THAT EITHER COUNSEL SO MUCH
AS MENTIONED THE ACCOMPLICE INSTRUCTION IN HIS ARGUMENT TO THE JURY. 
NONETHELESS, THE COURT CONCLUDES THAT BECAUSE THE INSTRUCTION CONTAINED
A "NEGATIVE PREGNANT" THAT COULD BE TAKEN TO MEAN THAT THE JURORS
SHOULD REJECT VOYLES' TESTIMONY IF THEY HAD A REASONABLE DOUBT AS TO
ITS VERACITY, THE CONVICTION IS TO BE REVERSED. 

I HAD THOUGHT THE DAY LONG PAST WHEN EVEN APPELLATE COURTS OF THE
FIRST INSTANCE, SUCH AS THE COURT OF APPEALS IN THIS CASE, PARSED
INSTRUCTIONS AND ENGAGED IN NICE SEMANTIC DISTINCTIONS IN THE ABSENCE
OF ANY SHOWING THAT WOULD SATISFY AN ORDINARY LAWYER OR LAYMAN THAT
SUBSTANTIAL RIGHTS OF ONE OF THE PARTIES HAD BEEN PREJUDICED BY THE
SUPPOSED ERROR.  IF THE NUANCE OF THE INSTRUCTION UPON WHICH REVERSAL
IS NOW BASED DID NOT SUGGEST ITSELF TO PETITIONER'S TRIAL COUNSEL, IT
SEEMS DOUBTFUL THAT IT SUGGESTED ITSELF TO THE JURY EITHER:     "A
PARTY MUST MAKE EVERY REASONABLE EFFORT TO SECURE FROM THE TRIAL COURT
CORRECT RULINGS OR SUCH AT LEAST AS ARE SATISFACTORY TO HIM BEFORE HE
WILL BE PERMITTED TO ASK ANY REVIEW BY THE APPELLATE TRIBUNAL; AND TO
THAT END HE MUST BE DISTINCT AND SPECIFIC IN HIS OBJECTIONS AND
EXCEPTIONS . . . ' . . . (JUSTICE ITSELF AND FAIRNESS TO THE COURT
WHICH MAKES THE RULINGS COMPLAINED OF, REQUIRE THAT THE ATTENTION OF
THAT COURT SHALL BE SPECIFICALLY CALLED TO THE PRECISE POINT TO WHICH
EXCEPTION IS TAKEN, THAT IT MAY HAVE AN OPPORTUNITY TO RECONSIDER THE
MATTER AND REMOVE THE GROUND OF EXCEPTION.'"  ALLIS V. UNITED STATES,
155 U.S. 117, 122 (1894), QUOTING HARVEY V. TYLER, 2 WALL.  328, 339
(1865). 

NOR, AS POINTED OUT ABOVE, DID THIS PARTICULAR INSTRUCTION OF THE
TRIAL COURT STAND ALONE; IT WAS INCORPORATED INTO A SERIES OF
INSTRUCTIONS THAT HAD AS THEIR PREDOMINANT THEME THAT THE BURDEN OF
PROOF WAS UPON THE GOVERNMENT AT EVERY STAGE TO PROVE GUILT BEYOND A
REASONABLE DOUBT.  THE TRIAL COURT'S INSTRUCTIONS ARE TO BE TAKEN AS A
WHOLE, AND EVEN IF AN ISOLATED PASSAGE MIGHT BE ERROR IF STANDING BY
ITSELF, THAT ALONE IS NOT A SUFFICIENT GROUND FOR REVERSAL.  BOYD V.
UNITED STATES, 271 U.S. 104, 107 (1926). 

THE COURT'S REVERSAL ON THE GROUND THAT ONE OF THE INSTRUCTIONS
CONTAINED A "NEGATIVE PREGNANT" SMACKS MORE OF THE SCHOLASTIC
JURISPRUDENCE WHOSE SHORTCOMINGS LED TO THE ENACTMENT OF 28 U.S.C. 2111
THAN IT DOES OF THE COMMONSENSE APPROACH TO APPELLATE REVIEW THAT THAT

/1/  "ANY ERROR, DEFECT, IRREGULARITY OR VARIANCE WHICH DOES NOT
AFFECT SUBSTANTIAL RIGHTS SHALL BE DISREGARDED."  FED. RULE CRIM. PROC.
52(A). 

/2/  "ON THE HEARING OF ANY APPEAL OR WRIT OF CERTIORARI IN ANY
CASE, THE COURT SHALL GIVE JUDGMENT AFTER AN EXAMINATION OF THE RECORD
WITHOUT REGARD TO ERRORS OR DEFECTS WHICH DO NOT AFFECT THE SUBSTANTIAL
RIGHTS OF THE PARTIES."  28 U.S.C. 2111. 

/3/  THE PETITIONER AND HER HUSBAND WERE TRIED AND CONVICTED
TOGETHER ON THE COUNTERFEITING CHARGES.  BOTH APPEALED THEIR
CONVICTIONS TO THE SEVENTH CIRCUIT, WHICH AFFIRMED BOTH.  PETITIONER'S
HUSBAND HAS NOT SOUGHT CERTIORARI TO HAVE HIS CONVICTION REVIEWED. 
..END :






















GOTTSCHALK V. BENSON, 409 U.S. 63 


       GOTTSCHALK, ACTING COMMISSIONER OF PATENTS V. BENSON ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS AND PATENT

           APPEALS

        NO. 71-485.  ARGUED OCTOBER 16, 1972-- DECIDED NOVEMBER 20,

   1972 


RESPONDENTS' METHOD FOR CONVERTING NUMERICAL INFORMATION FROM BINARY
CODED DECIMAL NUMBERS INTO PURE BINARY NUMBERS, FOR USE IN PROGRAMMING
CONVENTIONAL GENERAL-PURPOSE DIGITAL COMPUTERS IS MERELY A SERIES OF
MATHEMATICAL CALCULATIONS OR MENTAL STEPS AND DOES NOT CONSTITUTE A
PATENTABLE "PROCESS" WITHIN THE MEANING OF THE PATENT ACT, 35 U.S.C.
100(B).  PP. 64-73. 

-- C.C.P.A.(PAT.)-- , 441 F.2D 682, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT STEWART, BLACKMUN, AND POWELL, JJ., WHO TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS FILED IN THE PATENT OFFICE AN APPLICATION FOR AN
INVENTION WHICH WAS DESCRIBED AS BEING RELATED "TO THE PROCESSING OF
DATA BY PROGRAM AND MORE PARTICULARLY TO THE PROGRAMMED CONVERSION OF
NUMERICAL INFORMATION" IN GENERAL-PURPOSE DIGITAL COMPUTERS.  THEY
CLAIMED A METHOD FOR CONVERTING BINARY-CODED DECIMAL (BCD) NUMERALS
INTO PURE BINARY NUMERALS.  THE CLAIMS WERE NOT LIMITED TO ANY
PARTICULAR ART OR TECHNOLOGY, TO ANY PARTICULAR APPARATUS OR MACHINERY,
OR TO ANY PARTICULAR END USE.  THEY PURPORTED TO COVER ANY USE OF THE
CLAIMED METHOD IN A GENERAL-PURPOSE DIGITAL COMPUTER OF ANY TYPE. 
CLAIMS 8 AND 13 /1/  WERE REJECTED BY THE PATENT OFFICE BUT SUSTAINED
BY THE COURT OF CUSTOMS AND PATENT APPEALS,-- C.C.P.A.(PAT.)  -- , 441
F.2D 682.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI. 
405 U.S. 915. 

THE QUESTION IS WHETHER THE METHOD DESCRIBED AND CLAIMED IS A
"PROCESS" WITHIN THE MEANING OF THE PATENT ACT.  /2/ 

A DIGITAL COMPUTER, AS DISTINGUISHED FROM AN ANALOG COMPUTER,
OPERATES ON DATA EXPRESSED IN DIGITS, SOLVING A PROBLEM BY DOING
ARITHMETIC AS A PERSON WOULD DO IT BY HEAD AND HAND.  /3/  SOME OF THE
DIGITS ARE STORED AS COMPONENTS OF THE COMPUTER.  OTHERS ARE INTRODUCED
INTO THE COMPUTER IN A FORM WHICH IT IS DESIGNED TO RECOGNIZE.  THE
COMPUTER OPERATES THEN UPON BOTH NEW AND PREVIOUSLY STORED DATA.  THE
GENERAL-PURPOSE COMPUTER IS DESIGNED TO PERFORM OPERATIONS UNDER MANY
DIFFERENT PROGRAMS. 

THE REPRESENTATION OF NUMBERS MAY BE IN THE FORM OF A TIME SERIES OF
ELECTRICAL IMPULSES, MAGNETIZED SPOTS ON THE SURFACE OF TAPES, DRUMS,
OR DISCS, CHARGED SPOTS ON CATHODE-RAY TUBE SCREENS, THE PRESENCE OR
ABSENCE OF PUNCHED HOLES ON PAPER CARDS, OR OTHER DEVICES.  THE METHOD
OR PROGRAM IS A SEQUENCE OF CODED INSTRUCTIONS FOR A DIGITAL COMPUTER. 

THE PATENT SOUGHT IS ON A METHOD OF PROGRAMMING A GENERAL-PURPOSE
DIGITAL COMPUTER TO CONVERT SIGNALS FROM BINARY-CODED DECIMAL FORM INTO
PURE BINARY FORM.  A PROCEDURE FOR SOLVING A GIVEN TYPE OF MATHEMATICAL
PROBLEM IS KNOWN AS AN "ALGORITHM."  THE PROCEDURES SET FORTH IN THE
PRESENT CLAIMS ARE OF THAT KIND; THAT IS TO SAY, THEY ARE A GENERALIZED
FORMULATION FOR PROGRAMS TO SOLVE MATHEMATICAL PROBLEMS OF CONVERTING
ONE FORM OF NUMERICAL REPRESENTATION TO ANOTHER.  FROM THE GENERIC
FORMULATION, PROGRAMS MAY BE DEVELOPED AS SPECIFIC APPLICATIONS. 

THE DECIMAL SYSTEM USES AS DIGITS THE 10 SYMBOLS 0, 1, 2, 3, 4, 5,
6, 7, 8, AND 9.  THE VALUE REPRESENTED BY ANY DIGIT DEPENDS, AS IT DOES
IN ANY POSITIONAL SYSTEM OF NOTATION, BOTH ON ITS INDIVIDUAL VALUE AND
ON ITS RELATIVE POSITION IN THE NUMERAL.  DECIMAL NUMERALS ARE WRITTEN
BY PLACING DIGITS IN THE APPROPRIATE POSITIONS OR COLUMNS OF THE
NUMERICAL SEQUENCE, I.E., "UNIT"  (EQUATIONS OMITTED) 

THE PURE BINARY SYSTEM OF POSITIONAL NOTATION USES TWO SYMBOLS AS
DIGITS-- 0 AND 1, PLACED IN A NUMERICAL SEQUENCE WITH VALUES BASED ON
CONSECUTIVELY ASCENDING POWERS OF 2.  IN PURE BINARY NOTATION, WHAT
WOULD BE THE TENS POSITION IS THE TWOS POSITION; WHAT WOULD BE HUNDREDS
POSITION IS THE FOURS POSITION; WHAT WOULD BE THE THOUSANDS POSITION IS
THE EIGHTS.  ANY DECIMAL NUMBER FROM 0 TO 10 CAN BE REPRESENTED IN THE
BINARY SYSTEM WITH FOUR DIGITS OR POSITIONS AS INDICATED IN THE
FOLLOWING TABLE.  (TABLE OMITTED) 

THE BCD SYSTEM USING DECIMAL NUMERALS REPLACES THE CHARACTER FOR
EACH COMPONENT DECIMAL DIGIT IN THE DECIMAL NUMERAL WITH THE
CORRESPONDING FOUR-DIGIT BINARY NUMERAL, SHOWN IN THE RIGHTHAND COLUMN
OF THE TABLE.  THUS DECIMAL 53 IS REPRESENTED AS 0101 0011 IN BCD,
BECAUSE DECIMAL 5 IS EQUAL TO BINARY 0101 AND DECIMAL 3 IS EQUIVALENT
TO BINARY 0011.  IN PURE BINARY NOTATION, HOWEVER, DECIMAL 53 EQUALS
BINARY 110101.  THE CONVERSION OF BCD NUMERALS TO PURE BINARY NUMERALS
CAN BE DONE MENTALLY THROUGH USE OF THE FOREGOING TABLE.  THE METHOD
SOUGHT TO BE PATENTED VARIES THE ORDINARY ARITHMETIC STEPS A HUMAN
WOULD USE BY CHANGING THE ORDER OF THE STEPS, CHANGING THE SYMBOLISM
FOR WRITING THE MULTIPLIER USED IN SOME STEPS, AND BY TAKING SUBTOTALS
AFTER EACH SUCCESSIVE OPERATION.  THE MATHEMATICAL PROCEDURES CAN BE
CARRIED OUT IN EXISTING COMPUTERS LONG IN USE, NO NEW MACHINERY BEING
NECESSARY.  AND, AS NOTED, THEY CAN ALSO BE PERFORMED WITHOUT A
COMPUTER. 

THE COURT STATED IN MACKAY CO. V. RADIO CORP., 306 U.S. 86, 94, THAT
"(WHILE A SCIENTIFIC TRUTH, OR THE MATHEMATICAL EXPRESSION OF IT, IS
NOT A PATENTABLE INVENTION, A NOVEL AND USEFUL STRUCTURE CREATED WITH
THE AID OF KNOWLEDGE OF SCIENTIFIC TRUTH MAY BE."  THAT STATEMENT
FOLLOWED THE LONGSTANDING RULE THAT "(AN IDEA OF ITSELF IS NOT
PATENTABLE."  RUBBER-TIP PENCIL CO. V. HOWARD, 20 WALL.  498, 507.  "A
PRINCIPLE, IN THE ABSTRACT, IS A FUNDAMENTAL TRUTH; AN ORIGINAL CAUSE;
A MOTIVE; THESE CANNOT BE PATENTED, AS NO ONE CAN CLAIM IN EITHER OF
THEM AN EXCLUSIVE RIGHT."  LE ROY V. TATHAM, 14 HOW.  156, 175. 
PHENOMENA OF NATURE, THOUGH JUST DISCOVERED, MENTAL PROCESSES, AND
ABSTRACT INTELLECTUAL CONCEPTS ARE NOT PATENTABLE, AS THEY ARE THE
BASIC TOOLS OF SCIENTIFIC AND TECHNOLOGICAL WORK.  AS WE STATED IN FUNK
BROS. SEED CO. V. KALO CO., 333 U.S. 127, 130, "HE WHO DISCOVERS A
HITHERTO UNKNOWN PHENOMENON OF NATURE HAS NO CLAIM TO A MONOPOLY OF IT
WHICH THE LAW RECOGNIZES.  IF THERE IS TO BE INVENTION FROM SUCH A
DISCOVERY, IT MUST COME FROM THE APPLICATION OF THE LAW OF NATURE TO A
NEW AND USEFUL END."  WE DEALT THERE WITH A "PRODUCT" CLAIM, WHILE THE
PRESENT CASE DEALS WITH A "PROCESS" CLAIM.  BUT WE THINK THE SAME
PRINCIPLE APPLIES. 

HERE THE "PROCESS" CLAIM IS SO ABSTRACT AND SWEEPING AS TO COVER
BOTH KNOWN AND UNKNOWN USES OF THE BCD TO PURE BINARY CONVERSION.  THE
END USE MAY (1) VARY FROM THE OPERATION OF A TRAIN TO VERIFICATION OF
DRIVERS' LICENSES TO RESEARCHING THE LAW BOOKS FOR PRECEDENTS AND (2)
BE PERFORMED THROUGH ANY EXISTING MACHINERY OR FUTURE-DEVISED MACHINERY
OR WITHOUT ANY APPARATUS. 

IN O'REILLY V. MORSE, 15 HOW.  62, MORSE WAS ALLOWED A PATENT FOR A
PROCESS OF USING ELECTROMAGNETISM TO PRODUCE DISTINGUISHABLE SIGNS FOR
TELEGRAPHY.  ID., AT 111.  BUT THE COURT DENIED THE EIGHTH CLAIM IN
WHICH MORSE CLAIMED THE USE OF "ELECTRO MAGNETISM, HOWEVER DEVELOPED
FOR MARKING OR PRINTING INTELLIGIBLE CHARACTERS, SIGNS, OR LETTERS, AT
ANY DISTANCES."  ID., AT 112.  THE COURT IN DISALLOWING THAT CLAIM
SAID, "IF THIS CLAIM CAN BE MAINTAINED, IT MATTERS NOT BY WHAT PROCESS
OR MACHINERY THE RESULT IS ACCOMPLISHED.  FOR AUGHT THAT WE NOW KNOW,
SOME FUTURE INVENTOR, IN THE ONWARD MARCH OF SCIENCE, MAY DISCOVER A
MODE OF WRITING OR PRINTING AT A DISTANCE BY MEANS OF THE ELECTRIC OR
GALVANIC CURRENT, WITHOUT USING ANY PART OF THE PROCESS OR COMBINATION
SET FORTH IN THE PLAINTIFF'S SPECIFICATION.  HIS INVENTION MAY BE LESS
COMPLICATED-- LESS LIABLE TO GET OUT OF ORDER-- LESS EXPENSIVE IN
CONSTRUCTION, AND IN ITS OPERATION.  BUT YET, IF IT IS COVERED BY THIS
PATENT, THE INVENTOR COULD NOT USE IT, NOR THE PUBLIC HAVE THE BENEFIT
OF IT, WITHOUT THE PERMISSION OF THIS PATENTEE."  ID., AT 113. 

IN THE TELEPHONE CASES, 126 U.S. 1, 534, THE COURT EXPLAINED THE
MORSE CASE AS FOLLOWS:  "THE EFFECT OF THAT EXPLAINED WAS, THEREFORE,
THAT THE USE OF MAGNETISM AS A MOTIVE POWER, WITHOUT REGARD TO THE
PARTICULAR PROCESS WITH WHICH IT WAS CONNECTED IN THE PATENT, COULD NOT
BE CLAIMED, BUT THAT ITS USE IN THAT CONNECTION COULD."  BELL'S
INVENTION WAS THE USE OF ELECTRIC CURRENT TO TRANSMIT VOCAL OR OTHER
SOUNDS.  THE CLAIM WAS NOT "FOR THE USE OF A CURRENT OF ELECTRICITY IN
ITS NATURAL STATE AS IT COMES FROM THE BATTERY, BUT FOR PUTTING A
CONTINUOUS CURRENT IN A CLOSED CIRCUIT INTO A CERTAIN SPECIFIED
CONDITION SUITED TO THE TRANSMISSION OF VOCAL AND OTHER SOUNDS, AND
USING IT IN THAT CONDITION FOR THAT PURPOSE."  IBID.  THE CLAIM, IN
OTHER WORDS, WAS NOT "ONE FOR THE USE OF ELECTRICITY DISTINCT FROM THE
PARTICULAR PROCESS WITH WHICH IT IS CONNECTED IN HIS PATENT."  ID., AT
535.  THE PATENT WAS FOR THAT USE OF ELECTRICITY "BOTH FOR THE MAGNETO
AND VARIABLE RESISTANCE METHODS."  ID., AT 538.  BELL'S CLAIM, IN OTHER
WORDS, WAS NOT ONE FOR ALL TELEPHONIC USE OF ELECTRICITY. 

IN CORNING V. BURDEN, 15 HOW.  252, 267-268, THE COURT SAID, "ONE
MAY DISCOVER A NEW AND USEFUL IMPROVEMENT IN THE PROCESS OF TANNING,
DYEING, ETC., IRRESPECTIVE OF ANY PARTICULAR FORM OF MACHINERY OR
MECHANICAL DEVICE."  THE EXAMPLES GIVEN WERE THE "ARTS OF TANNING,
DYEING, MAKING WATERPROOF CLOTH, VULCANIZING INDIA RUBBER, SMELTING
ORES."  ID., AT 267.  THOSE ARE INSTANCES, HOWEVER, WHERE THE USE OF
CHEMICAL SUBSTANCES OR PHYSICAL ACTS, SUCH AS TEMPERATURE CONTROL,
CHANGES ARTICLES OR MATERIALS.  THE CHEMICAL PROCESS OR THE PHYSICAL
ACTS WHICH TRANSFORM THE RAW MATERIAL ARE, HOWEVER, SUFFICIENTLY
DEFINITE TO CONFINE THE PATENT MONOPOLY WITHIN RATHER DEFINITE BOUNDS. 

COCHRANE V. DEENER, 94 U.S. 780, INVOLVED A PROCESS FOR
MANUFACTURING FLOUR SO AS TO IMPROVE ITS QUALITY.  THE PROCESS FIRST
SEPARATED THE SUPERFINE FLOUR AND THEN REMOVED IMPURITIES FROM THE
MIDDLINGS BY BLASTS OF AIR, REGROUND THE MIDDLINGS, AND THEN COMBINED
THE PRODUCT WITH THE SUPERFINE.  ID., AT 785.  THE CLAIM WAS NOT
LIMITED TO ANY SPECIAL ARRANGEMENT OF MACHINERY.  IBID.  THE COURT
SAID, 

"THAT A PROCESS MAY BE PATENTABLE, IRRESPECTIVE OF THE

PARTICULAR FORM OF THE INSTRUMENTALITIES USED, CANNOT BE

DISPUTED.  IF ONE OF THE STEPS OF A PROCESS BE THAT A CERTAIN

  SUBSTANCE IS TO BE REDUCED TO A POWDER, IT MAY NOT BE AT ALL

  MATERIAL WHAT INSTRUMENT OR MACHINERY IS USED TO EFFECT THAT

  OBJECT, WHETHER A HAMMER, A PESTLE AND MORTAR, OR A MILL.  EITHER

  MAY BE POINTED OUT; BUT IF THE PATENT IS NOT CONFINED TO THAT

  PARTICULAR TOOL OR MACHINE, THE USE OF THE OTHERS WOULD BE AN

  INFRINGEMENT, THE GENERAL PROCESS BEING THE SAME.  A PROCESS IS A

  MODE OF TREATMENT OF CERTAIN MATERIALS TO PRODUCE A GIVEN

  RESULT.  IT IS AN ACT, OR A SERIES OF ACTS, PERFORMED UPON THE

  SUBJECT-MATTER TO BE TRANSFORMED AND REDUCED TO A DIFFERENT STATE

  OR THING."  ID., AT 787-788. 

TRANSFORMATION AND REDUCTION OF AN ARTICLE "TO A DIFFERENT STATE OR
THING" IS THE CLUE TO THE PATENTABILITY OF A PROCESS CLAIM THAT DOES
NOT INCLUDE PARTICULAR MACHINES.  SO IT IS THAT A PATENT IN THE PROCESS
OF "MANUFACTURING FAT ACIDS AND GLYCERINE FROM FATTY BODIES BY THE
ACTION OF WATER AT A HIGH TEMPERATURE AND PRESSURE" WAS SUSTAINED IN
TILGHMAN V. PROCTOR, 102 U.S. 707, 721.  THE COURT SAID, "THE CHEMICAL
PRINCIPLE OR SCIENTIFIC FACT UPON WHICH IT IS FOUNDED IS, THAT THE
ELEMENTS OF NEUTRAL FAT REQUIRE TO BE SEVERALLY UNITED WITH AN ATOMIC
EQUIVALENT OF WATER IN ORDER TO SEPARATE FROM EACH OTHER AND BECOME
FREE.  THIS CHEMICAL FACT WAS NOT DISCOVERED BY TILGHMAN.  HE ONLY
CLAIMS TO HAVE INVENTED A PARTICULAR MODE OF BRINGING ABOUT THE DESIRED
CHEMICAL UNION BETWEEN THE FATTY ELEMENTS AND WATER."  ID., AT 729. 

EXPANDED METAL CO. V. BRADFORD, 214 U.S. 366, SUSTAINED A PATENT ON
A "PROCESS" FOR EXPANDING METAL.  A PROCESS "INVOLVING MECHANICAL
OPERATIONS, AND PRODUCING A NEW AND USEFUL RESULT," ID., AT 385-386,
WAS HELD TO BE A PATENTABLE PROCESS, PROCESS PATENTS NOT BEING LIMITED
TO CHEMICAL ACTION. 

SMITH V. SNOW, 294 U.S. 1, AND WAXHAM V. SMITH, 294 U.S. 20,
INVOLVED A PROCESS FOR SETTING EGGS IN STAGED INCUBATION AND APPLYING
MECHANICALLY CIRCULATED CURRENTS OF AIR TO THE EGGS.  THE COURT, IN
SUSTAINING THE FUNCTION PERFORMED (THE HATCHING OF EGGS) AND THE MEANS
OR PROCESS BY WHICH THAT IS DONE, SAID: 

"BY THE USE OF MATERIALS IN A PARTICULAR MANNER HE SECURED THE
PERFORMANCE OF THE FUNCTION BY A MEANS WHICH HAD NEVER OCCURRED IN
NATURE, AND HAD NOT BEEN ANTICIPATED BY THE PRIOR ART; THIS IS A
PATENTABLE METHOD OR PROCESS . . . A METHOD, WHICH MAY BE PATENTED
IRRESPECTIVE OF THE PARTICULAR FORM OF THE MECHANISM WHICH MAY BE
AVAILED OF FOR CARRYING IT INTO OPERATION, IS NOT TO BE REJECTED AS
'FUNCTIONAL,' MERELY BECAUSE THE SPECIFICATIONS SHOW A MACHINE CAPABLE
OF USING IT."  294 U.S.,AT 22. 

IT IS ARGUED THAT A PROCESS PATENT MUST EITHER BE TIED TO A
PARTICULAR MACHINE OR APPARATUS OR MUST OPERATE TO CHANGE ARTICLES OR
MATERIALS TO A "DIFFERENT STATE OR THING."  WE DO NOT HOLD THAT NO
PROCESS PATENT COULD EVER QUALIFY IF IT DID NOT MEET THE REQUIREMENTS
OF OUR PRIOR PRECEDENTS.  IT IS SAID THAT THE DECISION PRECLUDES A
PATENT FOR ANY PROGRAM SERVICING A COMPUTER.  WE DO NOT SO HOLD.  IT IS
SAID THAT WE HAVE BEFORE US A PROGRAM FOR A DIGITAL COMPUTER BUT EXTEND
OUR HOLDING TO PROGRAMS FOR ANALOG COMPUTERS.  WE HAVE, HOWEVER, MADE
CLEAR FROM THE START THAT WE DEAL WITH A PROGRAM ONLY FOR DIGITAL
COMPUTERS.  IT IS SAID WE FREEZE PROCESS PATENTS TO OLD TECHNOLOGIES,
LEAVING NO ROOM FOR THE REVELATIONS OF THE NEW, ONRUSHING TECHNOLOGY. 
SUCH IS NOT OUR PURPOSE.  WHAT WE COME DOWN TO IN A NUTSHELL IS THE
FOLLOWING. 

IT IS CONCEDED THAT ONE MAY NOT PATENT AN IDEA.  BUT IN PRACTICAL
EFFECT THAT WOULD BE THE RESULT IF THE FORMULA FOR CONVERTING BCD
NUMERALS TO PURE BINARY NUMERALS WERE PATENTED IN THIS CASE.  THE
MATHEMATICAL FORMULA INVOLVED HERE HAS NO SUBSTANTIAL PRACTICAL
APPLICATION EXCEPT IN CONNECTION WITH A DIGITAL COMPUTER, WHICH MEANS
THAT IF THE JUDGMENT BELOW IS AFFIRMED, THE PATENT WOULD WHOLLY PRE
EMPT THE MATHEMATICAL FORMULA AND IN PRACTICAL EFFECT WOULD BE A PATENT
ON THE ALGORITHM ITSELF.     IT MAY BE THAT THE PATENT LAWS SHOULD BE
EXTENDED TO COVER THESE PROGRAMS, A POLICY MATTER TO WHICH WE ARE NOT
COMPETENT TO SPEAK.  THE PRESIDENT'S COMMISSION ON THE PATENT SYSTEM
/4/  REJECTED THE PROPOSAL THAT THESE PROGRAMS BE PATENTABLE:  /5/ 

"UNCERTAINTY NOW EXISTS AS TO WHETHER THE STATUTE PERMITS A VALID
PATENT TO BE GRANTED ON PROGRAMS.  DIRECT ATTEMPTS TO PATENT PROGRAMS
HAVE BEEN REJECTED ON THE GROUND OF NONSTATUTORY SUBJECT MATTER. 
INDIRECT ATTEMPTS TO OBTAIN PATENTS AND AVOID THE REJECTION, BY
DRAFTING CLAIMS AS A PROCESS, OR A MACHINE OR COMPONENTS THEREOF
PROGRAMMED IN A GIVEN MANNER, RATHER THAN AS A PROGRAM ITSELF, HAVE
CONFUSED THE ISSUE FURTHER AND SHOULD NOT BE PERMITTED. 

     "THE PATENT OFFICE NOW CANNOT EXAMINE APPLICATIONS FOR
PROGRAMS

  BECAUSE OF A LACK OF A CLASSIFICATION TECHNIQUE AND THE REQUISITE

  SEARCH FILES.  EVEN IF THESE WERE AVAILABLE, RELIABLE SEARCHES

  WOULD NOT BE FEASIBLE OR ECONOMIC BECAUSE OF THE TREMENDOUS

  VOLUME OF PRIOR ART BEING GENERATED.  WITHOUT THIS SEARCH, THE

PATENTING OF PROGRAMS WOULD BE TANTAMOUNT TO MERE REGISTRATION

  AND THE PRESUMPTION OF VALIDITY WOULD BE ALL BUT NONEXISTENT. 

     "IT IS NOTED THAT THE CREATION OF PROGRAMS HAS UNDERGONE

  SUBSTANTIAL AND SATISFACTORY GROWTH IN THE ABSENCE OF PATENT

  PROTECTION AND THAT COPYRIGHT PROTECTION FOR PROGRAMS IS

  PRESENTLY AVAILABLE." 

IF THESE PROGRAMS ARE TO BE PATENTABLE, /6/  CONSIDERABLE PROBLEMS
ARE RAISED WHICH ONLY COMMITTEES OF CONGRESS CAN MANAGE, FOR BROAD
POWERS OF INVESTIGATION ARE NEEDED, INCLUDING HEARINGS WHICH CANVASS
THE WIDE VARIETY OF VIEWS WHICH THOSE OPERATING IN THIS FIELD
ENTERTAIN.  THE TECHNOLOGICAL PROBLEMS TENDERED IN THE MANY BRIEFS
BEFORE US /7/  INDICATE TO US THAT CONSIDERED ACTION BY THE CONGRESS IS
NEEDED. 

              REVERSED. 

/1/ THEY ARE SET FORTH IN THE APPENDIX TO THIS OPINION. 

/2/  TITLE 35 U.S.C. 100(B) PROVIDES: 

"THE TERM 'PROCESS' MEANS PROCESS, ART OR METHOD, AND INCLUDES A NEW
USE OF A KNOWN PROCESS, MACHINE, MANUFACTURE, COMPOSITION OF MATTER, OR
MATERIAL." 

TITLE 35 U.S.C. 101 PROVIDES: 

"WHOEVER INVENTS OR DISCOVERS ANY NEW AND USEFUL PROCESS, MACHINE,
MANUFACTURE, OR COMPOSITION OF MATTER, OR ANY NEW AND USEFUL
IMPROVEMENT THEREOF, MAY OBTAIN A PATENT THEREFOR, SUBJECT TO THE
CONDITIONS AND REQUIREMENTS OF THIS TITLE." 

/3/  SEE R. BENREY, UNDERSTANDING DIGITAL COMPUTERS 4 (1964). 

/4/  "TO PROMOTE THE PROGRESS OF . . . USEFUL ARTS," REPORT OF THE
PRESIDENT'S COMMISSION ON THE PATENT SYSTEM (1966). 

/5/  ID., AT 13. 

/6/  SEE WILD, COMPUTER PROGRAM PROTECTION:  THE NEED TO LEGISLATE A
SOLUTION, 54 CORN.L.REV.  586, 604-609 (1969); BENDER, COMPUTER
PROGRAMS:  SHOULD THEY BE PATENTABLE?, 68 COL.L.REV.  241 (1968);
BUCKMAN, PROTECTION OF PROPRIETORY INTEREST IN COMPUTER PROGRAMS, 51
J.PAT.OFF.SOC.  135 (1969). 

/7/  AMICUS BRIEFS OF 14 INTERESTED GROUPS HAVE BEEN FILED ON THE
MERITS IN THIS CASE. 

MR. JUSTICE STEWART, MR. JUSTICE BLACKMUN, AND MR. JUSTICE POWELL
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

        APPENDIX TO OPINION OF THE COURT 

CLAIM 8 READS: 

"THE METHOD OF CONVERTING SIGNALS FROM BINARY CODED DECIMAL FORM
INTO BINARY WHICH COMPRISES THE STEPS OF 

"(1) STORING THE BINARY CODED DECIMAL SIGNALS IN A RE-ENTRANT SHIFT
REGISTER, 

"(2) SHIFTING THE SIGNALS TO THE RIGHT BY AT LEAST THREE PLACES,
UNTIL THERE IS A BINARY '1' IN THE SECOND POSITION OF SAID REGISTER, 

"(3) MASKING OUT SAID BINARY '1' IN SAID SECOND POSITION OF SAID
REGISTER, 

"(4) ADDING A BINARY '1' TO THE FIRST POSITION OF SAID REGISTER, 

"(5) SHIFTING THE SIGNALS TO THE LEFT BY TWO POSITIONS, 

"(6) ADDING A '1' TO SAID FIRST POSITION, AND 

"(7) SHIFTING THE SIGNALS TO THE RIGHT BY AT LEAST THREE POSITIONS
IN PREPARATION FOR A SUCCEEDING BINARY '1' IN THE SECOND POSITION OF
SAID REGISTER." 

CLAIM 13 READS: 

"A DATA PROCESSING METHOD FOR CONVERTING BINARY CODED DECIMAL NUMBER
REPRESENTATIONS INTO BINARY NUMBER REPRESENTATIONS COMPRISING THE STEPS
OF 

"(1) TESTING EACH BINARY DIGIT POSITION '1,' BEGINNING WITH THE
LEAST SIGNIFICANT BINARY DIGIT POSITION, OF THE MOST SIGNIFICANT
DECIMAL DIGIT REPRESENTATION FOR A BINARY '0' OR A BINARY '1'; 

"(2) IF A BINARY '0' IS DETECTED, REPEATING STEP (1) FOR THE NEXT
LEAST SIGNIFICANT BINARY DIGIT POSITION OF SAID MOST SIGNIFICANT
DECIMAL DIGIT REPRESENTATION; 

"(3) IF A BINARY '1' IS DETECTED, ADDING A BINARY '1' AT THE (I.1TH
AND (I-3TH LEAST SIGNIFICANT BINARY DIGIT POSITIONS OF THE NEXT LESSER
SIGNIFICANT DECIMAL DIGIT REPRESENTATION, AND REPEATING STEP (1) FOR
THE NEXT LEAST SIGNIFICANT BINARY DIGIT POSITION OF SAID MOST
SIGNIFICANT DECIMAL DIGIT REPRESENTATION; 

"(4) UPON EXHAUSTING THE BINARY DIGIT POSITIONS OF SAID MOST
SIGNIFICANT DECIMAL DIGIT REPRESENTATION, REPEATING STEPS (1) THROUGH
(3) FOR THE NEXT LESSER SIGNIFICANT DECIMAL DIGIT REPRESENTATION AS
MODIFIED BY THE PREVIOUS EXECUTION OF STEPS (1) AND (3); AND 

"(5) REPEATING STEPS (1) THROUGH (4) UNTIL THE SECOND LEAST
SIGNIFICANT DECIMAL DIGIT REPRESENTATION HAS BEEN SO PROCESSED." 

RICHARD B. STONE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
KAUPER, ACTING ASSISTANT ATTORNEY GENERAL COMEGYS, HOWARD E. SHAPIRO,
RICHARD H. STERN, AND S. WILLIAM COCHRAN. 

HUGH B. COX ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF
WERE HENRY P. SAILER, MICHAEL BOUDIN, WILLIAM L. KEEFAUVER, AND ROBERT
O. NIMTZ. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JAMES M.
CLABAULT AND EDWARD G. FIORITO FOR BURROUGHS CORP.; BY HENRY L. HANSON
AND D. D. ALLEGRETTI FOR HONEYWELL, INC.; BY LLOYD N. CUTLER, EZEKIEL
G. STODARD, DEANNE C. SIEMER, NICHOLAS DEB.  KATZENBACH, AND ELMER W.
GALBI FOR INTERNATIONAL BUSINESS MACHINES CORP.; AND BY DONALD J. GAVIN
FOR THE BUSINESS EQUIPMENT MANUFACTURERS ASSN. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY SIDNEY
NEUMAN, TOM ARNOLD, AND JACK C. GOLDSTEIN FOR THE AMERICAN PATENT LAW
ASSN.; BY CLARON N. WHITE AND LOUIS ROBERTSON FOR THE CHICAGO BAR
ASSN.; BY JAMES J. HILL AND WILLIAM E. DOMINICK FOR THE PATENT LAW
ASSOCIATION OF CHICAGO; BY TIMOTHY L. TILTON FOR IOWA STATE UNIVERSITY
RESEARCH FOUNDATION, INC.; BY MICHAEL I. RACKMAN FOR INSTITUTIONAL
NETWORKS CORP.; BY DAVID J. TOOMEY FOR WHITLOW COMPUTER SYSTEMS, INC.;
BY VIRGIL E. WOODCOCK, RICHARD E. KURTZ, AND OSWALD G. HAYES FOR MOBIL
OIL CORP.; BY MORTON C. JACOBS FOR THE ASSOCIATION OF DATA PROCESSING
SERVICE ORGANIZATIONS ET AL.; BY MR. JACOBS FOR APPLIED DATA RESEARCH,
INC.; AND BY HOWARD J. MARSH FOR COMPUTER SOFTWARE ANALYSTS, INC., ET
AL.
..END :
























JOHNSON V. NEW YORK STATE EDUCATION DEPT., 409 U.S. 75 


       JOHNSON ET AL. V. NEW YORK STATE EDUCATION DEPARTMENT ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 71-5685.  ARGUED NOVEMBER 8, 1972-- DECIDED NOVEMBER
20,

         1972 


449 F.2D 871, VACATED AND REMANDED TO THE DISTRICT COURT TO DETERMINE
WHETHER CASE HAS BECOME MOOT. 

PER CURIAM. 

WE GRANTED CERTIORARI TO REVIEW THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT, 449 F.2D 871 (1971), AFFIRMING
THE DISTRICT COURT'S DISMISSAL OF PETITIONERS' COMPLAINT CHALLENGING
THE CONSTITUTIONALITY OF NEW YORK EDUCATION LAW SEC. 701 ET SEQ.
(1971).  405 U.S. 916 (1972).  HOWEVER, RESPONDENTS' BRIEF STATES THAT
"(ON MAY 3, 1972, THE QUALIFIED VOTERS OF THE RESPONDENT SCHOOL
DISTRICT ELECTED BY MAJORITY VOTE TO ASSESS A TAX FOR THE PURCHASE OF
ALL TEXTBOOKS FOR GRADES ONE THROUGH SIX IN THE SCHOOLS OF THE
DISTRICT."  IN LIGHT OF THIS FACT, AND GIVEN THE SUGGESTION AT ORAL
ARGUMENT THAT THE BOOKS THEMSELVES HAVE A LIFE EXPECTANCY OF FIVE
YEARS, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK TO DETERMINE
WHETHER THIS CASE HAS BECOME MOOT. 

MR. JUSTICE MARSHALL, CONCURRING. 

WHILE I JOIN THE COURT'S DECISION, I FEEL OBLIGED TO STATE SOMEWHAT
MORE FULLY WHAT I VIEW TO BE THE REASONS FOR AND MEANING OF THIS
REMAND. 

THE NEW YORK STATUTORY SCHEME HERE UNDER ATTACK EFFECTIVELY DENIES
TEXTBOOKS TO INDIGENT ELEMENTARY PUBLIC SCHOOL CHILDREN UNLESS THE
VOTERS OF THEIR DISTRICT APPROVE A TAX ESPECIALLY FOR THE PURPOSE OF
PROVIDING THE BOOKS.  /1/  PETITIONERS WHO ARE INDIGENT RECIPIENTS OF
PUBLIC ASSISTANCE ALLEGE, INTER ALIA, THAT THE STATUTE, AS APPLIED TO
THEIR CHILDREN, CREATES A WEALTH CLASSIFICATION VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE. 

WHEN THIS ACTION WAS INITIATED IN SEPTEMBER 1970, RESPONDENT BOARD
OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 27 WAS NOT PROVIDING
FREE TEXTBOOKS TO PETITIONERS' CHILDREN, ALTHOUGH TEXTBOOKS WERE
AVAILABLE UPON THE PAYMENT OF A FEE, WHICH PETITIONERS WERE UNABLE TO
AFFORD.  /2/  THE PRACTICAL CONSEQUENCE OF THIS SITUATION WAS THAT
INDIGENT CHILDREN WERE FORCED TO SIT "'BOOKLESS, SIDE BY SIDE IN THE
SAME CLASSROOM WITH OTHER MORE WEALTHY CHILDREN LEARNING WITH
PURCHASED) TEXTBOOKS (THUS ENGENDERING) A WIDESPREAD FEELING OF
INFERIORITY AND UNFITNESS IN POOR CHILDREN (WHICH) IS PSYCHOLOGICALLY,
EMOTIONALLY AND EDUCATIONALLY DISASTROUS TO THEIR WELL BEING.'"  /3/
INDEED, AN AFFIDAVIT SUBMITTED TO THE DISTRICT COURT INDICATED THAT IN
AT LEAST ONE CASE, AN INDIGENT CHILD WAS TOLD THAT "HE WILL RECEIVE AN
'F' FOR (EACH) DAY BECAUSE HE IS WITHOUT THE REQUIRED TEXT-BOOKS.  WHEN
THE OTHER PUPILS IN THE CLASS READ FROM TEXT-BOOKS, THE TEACHER DOESN'T
LET HIM SHARE A BOOK WITH ANOTHER PUPIL, INSTEAD SHE GIVES HIM A PAPER
AND TELLS HIM TO DRAW."  /4/  DESPITE THIS EVIDENCE, THE COURT OF
APPEALS, WITH ONE JUDGE DISSENTING, AFFIRMED THE DISTRICT COURT'S
DISMISSAL OF THE COMPLAINT.  WE GRANTED CERTIORARI.  /5/ 

THIS CASE OBVIOUSLY RAISES QUESTIONS OF LARGE CONSTITUTIONAL AND
PRACTICAL IMPORTANCE.  FOR TWO FULL SCHOOL YEARS CHILDREN IN ELEMENTARY
GRADES WERE DENIED ACCESS TO TEXTBOOKS SOLELY BECAUSE OF THE INDIGENCY
OF THEIR FAMILIES WHILE THESE QUESTIONS WERE BEING CONSIDERED BY THE
LOWER COURTS.  AFTER WE HAD GRANTED CERTIORARI, HOWEVER, A MAJORITY OF
THE VOTERS IN RESPONDENT SCHOOL DISTRICT FINALLY AGREED TO LEVY A TAX
FOR THE PURCHASE OF TEXTBOOKS FOR THE ELEMENTARY GRADES, AND WE ARE
TOLD THAT FREE TEXTBOOKS HAVE NOW BEEN PROVIDED. 

I JOIN IN THE COURT'S DECISION TO REMAND THE CASE SO THAT THE
DISTRICT COURT CAN ASSESS THE CONSEQUENCES OF THIS NEW DEVELOPMENT.  I
DO SO BECAUSE I BELIEVE THAT THE COURT ACTS OUT OF A PROPER SENSE OF
OUR CONSTITUTIONAL DUTY TO DECIDE ONLY LIVE CONTROVERSIES, AND BECAUSE
I BELIEVE THAT THE DISTRICT JUDGE CAN BEST RESOLVE THE FACTUAL ISSUES
UPON WHICH PROPER RESOLUTION OF THE MOOTNESS QUESTION DEPENDS. 
CERTAINLY, OUR MERE ACT OF REMANDING IN NO WAY SUGGESTS ANY PARTICULAR
VIEW AS TO WHETHER THIS CASE IS IN FACT MOOT.  THAT DECISION IS FOR THE
DISTRICT JUDGE IN THE FIRST INSTANCE. 

IN REACHING HIS DECISION, THE DISTRICT JUDGE WILL, OF COURSE, HAVE
TO TAKE INTO ACCOUNT THE STANDARDS THAT WE HAVE PREVIOUSLY ARTICULATED
FOR RESOLVING MOOTNESS PROBLEMS.  ON THE ONE HAND, "(A) CASE (MAY BE)
MOOT IF SUBSEQUENT EVENTS (MAKE) IT ABSOLUTELY CLEAR THAT THE ALLEGEDLY
WRONGFUL BEHAVIOR COULD NOT REASONABLY BE EXPECTED TO RECUR."  UNITED
STATES V. CONCENTRATED PHOSPHATE EXPORT ASSN., 393 U.S. 199, 203
(1968).  SEE ALSO SEC V. MEDICAL COMMITTEE FOR HUMAN RIGHTS, 404 U.S.
403 (1972).  BUT ON THE OTHER, "(MERE VOLUNTARY CESSATION OF ALLEGEDLY
ILLEGAL CONDUCT DOES NOT MOOT A CASE; IF IT DID, THE COURTS WOULD BE
COMPELLED TO LEAVE '(THE DEFENDANT . . . FREE TO RETURN TO HIS OLD
WAYS.'"  UNITED STATES V. CONCENTRATED PHOSPHATE EXPORT ASSN., SUPRA,
AT 203.  IN THE CONTEXT OF CONSTITUTIONAL QUESTIONS INVOLVING ELECTORAL
PROCESSES, THESE PRINCIPLES HAVE GENERALLY FOUND EXPRESSION IN THE
PROPOSITION THAT A CASE IS NOT MOOT IF "(THE PROBLEM IS . . . 'CAPABLE
OF REPETITION, YET EVADING REVIEW.'"  MOORE V. OGILVIE, 394 U.S. 814,
816 (1969).  /6/ 

IN APPLYING THESE STANDARDS TO THIS CASE, THE DISTRICT JUDGE SHOULD
ASCERTAIN THE NATURE OF THE TEXTBOOK PROBLEM FOR THE ELEMENTARY GRADES
IN RESPONDENT SCHOOL DISTRICT.  RESPONDENTS HAVE NOT SUGGESTED THAT THE
PROBLEM HAS BEEN RESOLVED ONCE AND FOR ALL BY THE RECENT PURCHASES.  TO
BE SURE, THEY DO CONTEND THAT THE NEW TEXTBOOKS HAVE A USEFUL LIFE OF
FIVE YEARS.  BUT DOES THIS ADEQUATELY ACCOUNT FOR DESTRUCTION BY
EXTRAORDINARY EVENTS, FOR LOSS DUE TO THEFT, AND FOR OBSOLESCENCE DUE
TO CURRICULUM CHANGES?  AND, EVEN ACCEPTING THE FIVE-YEAR FIGURE, DOES
THIS MAKE THE PROBLEM A NON-RECURRING ONE INSOFAR AS THE CONTINUING
VIABILITY OF THIS LITIGATION IS CONCERNED? 

THE DISTRICT JUDGE SHOULD ALSO INVESTIGATE THE POSTURE IN WHICH THE
LEGAL ISSUES PRESENTED BY THIS CASE MIGHT AGAIN ARISE WHEN THE BOOKS
BEGIN TO WEAR OUT.  WILL THE RESPONDENT SCHOOL DISTRICT DELAY HOLDING A
NEW ELECTION UNTIL THE NEW BOOKS ARE ACTUALLY NEEDED?  IS IT POSSIBLE
THAT LITIGATION WOULD AGAIN HAVE TO PROCEED FOR AN ENTIRE SCHOOL YEAR,
OR MORE, WHILE INDIGENT CHILDREN ARE DEPRIVED OF BOOKS, BEFORE THE
CONSTITUTIONALITY OF THAT DEPRIVATION IS FINALLY DETERMINED? 

THESE SEEM TO ME ESSENTIAL QUESTIONS FOR THE DISTRICT COURT TO
CONSIDER ON REMAND IN DISPOSING OF THE ISSUE OF MOOTNESS.  /7/ 

/1/  UNDER NEW YORK LAW, LOCAL SCHOOL DISTRICTS ARE REQUIRED TO LOAN
TEXTBOOKS FREE TO STUDENTS IN GRADES SEVEN THROUGH 12.  N.Y. EDUC.  LAW
SEC. 701 (1971).  NO SUCH PROVISION IS MADE FOR CHILDREN IN GRADES ONE
THROUGH SIX; FREE TEXTBOOKS ARE TO BE MADE AVAILABLE TO CHILDREN IN
THOSE GRADES ONLY UPON THE VOTE OF THE MAJORITY OF THE DISTRICT'S
ELIGIBLE VOTERS TO LEVY A TAX TO PROVIDE FUNDS FOR THE PURCHASE OF THE
TEXTBOOKS, N.Y. EDUC.  LAW SEC. 703 (1971). 

/2/  THE FEE IMPOSED WAS $7.50 PER CHILD. 

/3/  449 F.2D 871, 873 (CA2 1971) (QUOTING WITH APPROVAL
PETITIONERS' ALLEGATIONS). 

/4/  AFFIDAVIT OF CARL JAY NATHANSON, APP. 28. 

/5/  405 U.S. 916 (1972). 

/6/  THESE PRIOR STATEMENTS PROVIDE ONLY ROUGH GUIDANCE IN THIS
CASE, PARTICULARLY SINCE WE DEAL HERE WITH AN ELECTORAL PROCESS THAT IS
EMPLOYED ONLY ON AN IRREGULAR BASIS AS NEW BOOKS ARE NEEDED. 
NEVERTHELESS, I THINK THEY ARE ENLIGHTENING AS TO THE APPROPRIATE
INQUIRIES FOR THE DISTRICT COURT TO MAKE ON REMAND. 

/7/  NOR SHOULD THE DISTRICT COURT OVERLOOK THE FACT THAT THIS IS A
CLASS ACTION BROUGHT BY PETITIONERS "ON THEIR OWN BEHALF AND ON BEHALF
OF THEIR CHILDREN AND ALL OTHER PERSONS SIMILARLY AGGRIEVED."  EVEN IF
THE CASE IS NOW MOOT AS TO THESE PARTICULAR PETITIONERS, THERE MAY BE
OTHER MEMBERS OF THE CLASS WHO REMAIN AGGRIEVED AND THUS THE ACTION MAY
REMAIN A VIABLE ONE, SEE, E.G., CYPRESS V. NEWPORT NEWS GENERAL &
NONSECTARIAN HOSPITAL ASS., 375 F.2D 648, 657-658 (CA4 1967); GATLING
V. BUTLER, 52 F.R.D. 389, 394-395 (CONN. 1971).  CF. BROCKINGTON V.
RHODES, 396 U.S. 41, 43 (1969). 

CARL JAY NATHANSON ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONERS. 

JOEL LEWITTES, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL, AND IRIS A. STEEL, ASSISTANT ATTORNEY GENERAL.  HENRY A.
WEINSTEIN FILED A BRIEF FOR RESPONDENT THE BOARD OF EDUCATION, UNION
FREE SCHOOL DISTRICT NO. 27. 

BRIEFS OF AMICI CURIAE WERE FILED BY J. HAROLD FLANNERY FOR THE
CENTER FOR LAW AND EDUCATION, HARVARD UNIVERSITY, ET AL., AND BY JOHN
E. COONS FOR THE AMERICAN FEDERATION OF TEACHERS ET AL.
..END :













UNITED STATES V. JIM, 409 U.S. 80 


       UNITED STATES V. JIM ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF UTAH

        NO. 71-1509.  DECIDED NOVEMBER 20, 1972  /1/ 


A STATUTE ENLARGED THE CLASS OF BENEFICIARIES OF CERTAIN ROYALTIES
FROM OIL AND GAS LEASES IN THE ANETH EXTENSION OF THE NAVAJO INDIAN
RESERVATION IN UTAH BY PROVIDING THAT THE FUNDS BE USED TO BENEFIT ALL
NAVAJO INDIANS RESIDING IN SAN JUAN COUNTY RATHER THAN ONLY THOSE
RESIDING IN THE ANETH EXTENSION, AS PROVIDED IN AN EARLIER STATUTE. 
HELD:  AS THE EARLIER STATUTE DID NOT CREATE CONSTITUTIONALLY PROTECTED
PROPERTY RIGHTS IN THE RESIDENTS OF THE ANETH EXTENSION, THE STATUTORY
CHANGE DID NOT CONSTITUTE A TAKING OF PROPERTY WITHOUT JUST
COMPENSATION. 

REVERSED. 

PER CURIAM. 

THE MOTION OF THE NAVAJO TRIBE OF INDIANS FOR LEAVE TO FILE A BRIEF
AS AMICUS CURIAE IN NO. 71-1509, IS GRANTED. 

THESE CASES ARE HERE ON APPEAL FROM A JUDGMENT OF THE DISTRICT COURT
FOR THE DISTRICT OF UTAH THAT DECLARED AN ACT OF CONGRESS TO BE
UNCONSTITUTIONAL.  JURISDICTION IN THIS COURT IS CONFERRED BY 28 U.S.C.
1252 AND 2101(A). 

IN 1933, THE CONGRESS WITHDREW CERTAIN LANDS IN UTAH, KNOWN AS THE
"ANETH EXTENSION," FROM THE PUBLIC DOMAIN AND ADDED THEM TO THE NAVAJO
RESERVATION.  THOUGH NO OIL OR GAS WAS BELIEVED TO BE LOCATED ON THESE
LANDS, IT WAS PROVIDED THAT SHOULD SUCH MINERAL RESOURCES BE PRODUCED
IN COMMERCIAL QUANTITIES, "37 1/2 PER CENTUM OF THE NET ROYALTIES
ACCRUING THEREFROM DERIVED FROM TRIBAL LEASES SHALL BE PAID TO THE
STATE OF UTAH:  PROVIDED, THAT SAID 37 1/2 PER CENTUM OF SAID ROYALTIES
SHALL BE EXPENDED BY THE STATE OF UTAH IN THE TUITION OF INDIAN
CHILDREN IN WHITE SCHOOLS AND/OR IN THE BUILDING OR MAINTENANCE OF
ROADS ACROSS THE LANDS DESCRIBED IN SECTION 1 HEREOF, OR FOR THE BENFIT
OF THE INDIANS RESIDING THEREIN."  47 STAT. 1418.  THE REMAINING 62
1/2% OF THE ROYALTIES GENERATED BY ANY SUCH TRIBAL MINERAL LEASES WERE,
BY IMPLICATION, TO GO TO THE NAVAJO TRIBE. 

AFTER THE PASSAGE OF THE ACT, OIL AND GAS WERE DISCOVERED ON THE
ANETH EXTENSION, AND ROYALTIES WERE DIVIDED PURSUANT TO THE STATUTE. 
THE STATE OF UTAH CREATED AN INDIAN AFFIARS COMMISSION TO MANAGE AND
EXPEND THE FUNDS RECEIVED BY THE STATE UNDER THE ACT.  AS TIME WENT ON,
THE LANGUAGE OF THE 1933 ACT CAME TO CREATE ADMINISTRATIVE PROBLEMS
REGARDING THE EXPENDITURE OF THE FUNDS CHANNELED THROUGH THE STATE.  A
REPORT OF THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS NOTED IN
1967 THAT THE WORD "TUITION" IN THE 1933 ACT HAD CREATED UNCERTAINTY AS
TO THE BREADTH OF THE EDUCATIONAL PROGRAM THE STATE WAS AUTHORIZED TO
FINANCE FROM THE ROYALTY FUNDS.  THE REPORT ALSO NOTED A DIFFICULTY IN
DISCERNING PRECISELY WHO WAS PROPERLY A BENEFICIARY OF THE FUNDS, SINCE
"MANY NAVAJO FAMILIES DO NOT LIVE PERMANENTLY WITHIN THE LANDS SET
ASIDE IN 1933, BUT MOVE BACK AND FORTH BETWEEN THIS AREA AND OTHER
LOCATIONS."  S. REP. NO. 710, 90TH CONG., 1ST SESS., 2 (1967). 

TO MAKE THE ADMINISTRATION OF THESE FUNDS MORE FLEXIBLE AND TO
SPREAD THE BENEFITS OF THE ROYALTIES MORE BROADLY AMONG THE NAVAJO
COMMUNITY, THE CONGRESS ENACTED A STATUTE IN 1968 THAT DIRECTED THE
STATE TO EXPEND THE 37 1/2% OF ROYALTIES "FOR THE HEALTH, EDUCATION,
AND GENERAL WELFARE OF THE NAVAJO INDIANS RESIDING IN SAN JUAN
COUNTY."  82 STAT. 121.  THIS STATUTORY CHANGE EXPANDED THE POOL OF
BENEFICIARIES SUBSTANTIALLY, AND A CLASS ACTION WAS BROUGHT ON BEHALF
OF THE RESIDENTS OF THE ANETH EXTENSION, SEEKING INTER ALIA A
DECLARATION THAT THE STATUTE WAS AN UNCONSTITUTIONAL TAKING OF PROPERTY
WITHOUT JUST COMPENSATION.  THE DISTRICT COURT CONCLUDED THAT THE 1933
ACT VESTED CERTAIN PROPERTY RIGHTS IN THE PLAINTIFFS, AND HELD THE 1968
ACT, WITH ITS CHANGED POOL OF BENEFICIARIES, TO BE UNCONSTITUTIONAL. 
/1/ 

THE JUDGMENT OF THE DISTRICT COURT IS IN ERROR.  CONGRESS IN 1933
DID NOT CREATE CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS IN THE
APPELLEES.  THE ANETH EXTENSION WAS ADDED TO A TRIBAL RESERVATION, AND
THE LEASES WHICH GIVE RISE TO MINERAL ROYALTIES ARE TRIBAL LEASES.  IT
IS SETTLED THAT "(WHATEVER TITLE THE INDIANS HAVE IS IN THE TRIBE, AND
NOT IN THE INDIVIDUALS, ALTHOUGH HELD BY THE TRIBE FOR THE COMMON USE
AND EQUAL BENEFIT OF ALL THE MEMBERS."  CHEROKEE NATION V. HITCHCOCK,
187 U.S. 294, 307; DELAWARE INDIANS V. CHEROKEE NATION, 193 U.S. 127,
136.  TO BE SURE, THE 1933 ACT ESTABLISHED A PATTERN OF DISTRIBUTION
WHICH BENEFITED THE APPELLEES MORE THAN OTHER INDIANS ON THE NAVAJO
RESERVATION.  /2/  BUT IT WAS WELL WITHIN THE POWER OF CONGRESS TO
ALTER THAT DISTRIBUTIONAL SCHEME.  /3/  IN GRITTS V. FISHER, 224 U.S.
640, THIS COURT APPROVED A CONGRESSIONAL ENLARGEMENT OF THE POOL OF
INDIANS WHO WERE TO BENEFIT FROM A DISTRIBUTION OF TRIBAL PROPERTY. 
THERE, TOO, AN EARLIER STATUTE HAD ESTABLISHED A MORE LIMITED
ENTITLEMENT. 

"BUT IT IS SAID THAT THE ACT OF 1902 CONTEMPLATED THAT THEY (THE
BENEFICIARIES UNDER THE FIRST ENACTMENT) ALONE SHOULD RECEIVE
ALLOTMENTS AND BE THE PARTICIPANTS IN THE DISTRIBUTION OF THE REMAINING
LANDS, AND ALSO OF THE FUNDS, OF THE TRIBE.  NO DOUBT SUCH WAS THE
PURPORT OF THE ACT.  BUT THAT, IN OUR OPINION, DID NOT COFER UPON THEM
ANY VESTED RIGHT SUCH AS WOULD DISABLE CONGRESS FROM THEREAFTER MAKING
PROVISION FOR ADMITTING NEWLY BORN MEMBERS OF THE TRIBE TO THE
ALLOTMENT AND DISTRIBUTION.  THE DIFFICULTY WITH THE APPELLANTS'
CONTENTION IS THAT IT TREATS THE ACT OF 1902 AS A CONTRACT, WHEN 'IT IS
ONLY AN ACT OF CONGRESS AND CAN HAVE NO GREATER EFFECT.'  . . . IT WAS
BUT AN EXERTION OF THE ADMINISTRATIVE CONTROL OF THE GOVERNMENT OVER
THE TRIBAL PROPERTY OF TRIBAL INDIANS, AND WAS SUBJECT TO CHANGE BY
CONGRESS . . . " ID., AT 648. 

CONGRESS HAD NOT DEPRIVED THE NAVAJO OF THE BENEFITS OF MINERAL
DEPOSITS ON THEIR TRIBAL LANDS.  IT HAS MERELY CHOSEN TO RE-ALLOCATE
THE 37 1/2% OF ROYALTIES WHICH FLOW THROUGH THE STATE IN A MORE
EFFICIENT AND EQUITABLE MANNER.  THIS WAS WELL WITHIN THE POWER OF
CONGRESS TO DO.  AS NO "PROPERTY" IN A FIFTH AMENDMENT SENSE, WAS
CONFERRED UPON RESIDENTS OF THE ANETH EXTENSION BY THE 1933 ACT, NO
VIOLATION OF THE FIFTH AMENDMENT WAS EFFECTED BY THE 1968 LEGISLATION. 
THE JUDGMENT OF THE DISTRICT COURT IS

              REVERSED. 

/1/  THE DECISION OF THE DISTRICT COURT IS UNREPORTED. 

/2/  WHILE THE 1933 ACT REMAINED IN EFFECT, THE DISTRICT COURT
PROPERLY INSISTED THAT THE UTAH STATE INDIAN AFFAIRS COMMISSION COMPLY
WITH THE STATUTORY FORMULA FOR DISBURSEMENTS.  SEE SAKEZZIE V. UTAH
INDIAN AFFAIRS COMM'N, 198 F.SUPP.  218 (DECLARATORY JUDGMENT); 215
F.SUPP.  12 (SUPPLEMENTAL RELIEF). 

/3/  WE INTIMATE NO VIEW AS TO THE RIGHTS A TRIBE MIGHT HAVE IF
CONGRESS WERE TO DEPRIVE IT OF THE VALUE OF MINERAL ROYALTIES GENERATED
BY TRIBAL LANDS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

PLAINTIFFS BELOW ARE A CLASS OF INDIANS WITH A MEMBERSHIP OF 1,500. 
THEY ARE A MIXTURE OF NAVAJO AND PIUTE AND LIVE IN AN AREA OF THE
NAVAJO RESERVATION CALLED THE ANETH EXTENSION, MADE PART OF THAT
RESERVATION IN A 1933 ACT OF CONGRESS.  47 STAT. 1418.  IN 1968
CONGRESS AMENDED THAT ACT, 82 STAT. 121, AND THE DISTRICT COURT FOR THE
DISTRICT OF UTAH DECLARED THE AMENDMENT UNCONSTITUTIONAL. 

PRIOR TO 1933 THE EXTENSION WAS PART OF THE PUBLIC LANDS OF THE
UNITED STATES.  THE AREA WAS OCCUPIED BY THE DIRECT ANCESTORS OF THE
APPELLEES. 

THE INDIANS IN THE ANETH EXTENSION NUMBER ABOUT 1,500 PEOPLE WHO ARE
PRIMITIVE NAVAJOS WITH SOME MIXTURE OF PIUTE BLOOD.  SEE SAKEZZIE V.
UTAH INDIAN AFFAIRS COMM'N, 198 F.SUPP.  218, 220.  THEY LIVE IN A
REMOTE AND RELATIVELY INACCESSIBLE AREA WITH AN AVERAGE ANNUAL INCOME
PER FAMILY OF $240.  IBID.  THE ANETH EXTENSION IS IN SAN JUAN COUNTY
AND THE 1933 ACT STATED:  "(NO FURTHER ALLOTMENTS OF LANDS TO INDIANS
ON THE PUBLIC DOMAIN SHALL BE MADE IN SAN JUAN COUNTY, UTAH, NOR SHALL
FURTHER INDIAN HOMESTEADS BE MADE IN SAID COUNTY." 

THE WHITE MAN WAS UNCONCERNED ABOUT THIS DOMAIN UNTIL OIL WAS
DISCOVERED; AND THEN BE BECAME QUITE ACTIVE.  BY JUNE 30, 1970, THE
ROYALTIES OWING THE ANETH EXTENSION INDIANS HAD INCREASED TO
$7,039,022.32.  OF THIS, $78,000 WAS USED TO PIPE WATER FROM THE ANETH
EXTENSION TO THE ADJOINING LANDS OF A WHITE MAN, AN "IMPROVEMENT" THAT
ONLY INCIDENTALLY AIDED THE RESIDENT INDIANS.  ANOTHER $27,000 OF
INDIAN FUNDS WAS SPENT FOR THE CONSTRUCTION OF AN AIRPORT AND
CONNECTING ROAD, WHICH SUBSTANTIALLY BENEFITED A WHITE MAN'S PRIVATE
DUDE RANCH OPERATION.  SOME $10,000 OR MORE WAS EXPENDED FOR
ADMINISTRATIVE PURPOSES BY UTAH.  198 F.SUPP.,AT 221.  WHEN THIS SUIT
WAS STARTED, ADDITIONAL EXPENDITURES WERE ABOUT TO BE MADE:  $175,000
TO A FEDERAL AGENCY TO LOCATE ISOLATED WATER SPRINGS ON THE ANETH
EXTENSION AND $500,000 TO BUILD A HARD-SURFACED ROAD OUTSIDE THE
BOUNDARIES OF THE EXTENSION. 

THESE PRIMITIVE NAVAJOS WANTED THE MONEY USED TO PURCHASE HIGH
ELEVATION RANGES WHERE THEY MIGHT HAVE SUMMER GRAZING FOR THE LIVESTOCK
AND THUS REALIZE A ROUND-THE-YEAR OPERATION.  JUDGE CHRISTENSEN FOUND
THAT MEMBERS OF THE ANETH EXTENSION WERE THE SOLE BENEFICIARIES OF THE
FUND AND THAT IT SHOULD BE ADMINISTERED WITH THEIR WISHES IN MIND. 

BUT THERE ARE TENSIONS AND CONFLICTS BETWEEN THESE PRIMITIVE NAVAJOS
WHO LIVE ON THE ANETH EXTENSION AND OTHER MEMBERS OF THE TRIBE WHO LIVE
ELSEWHERE.  198 F.SUPP.,AT 221. 

THE STATE COMMISSION DID NOT COMPLY WITH THE DISTRICT COURT'S ORDER
BUT SPONSORED LEGISLATION TO EXTEND THE BENEFITS OF THE FUND TO OTHER
INDIANS.  /1/  JUDGE CHRISTENSEN RULED AGAIN THAT THE FUND WAS SOLELY
FOR THE BENEFIT OF MEMBERS OF THE ANETH EXTENSION.  SAKEZZIE V. UTAH
STATE INDIAN AFFAIRS COMM'N, 215 F.SUPP.  12.  NEITHER OPINION WAS
APPEALED.  BUT THE STATE COMMISSION PROMOTED LEGISLATION TO EXTEND THE
BENEFITS OF THE 1933 ACT TO OTHER INDIANS.  ID., AT 20. 

THE PROBLEMS THE COMMISSION HAD IN ADMINISTERING THE FUND REACHED
CONGRESS AND IN 1968 THE CONTESTED AMENDMENT WAS PASSED.  82 STAT.
121.  THIS AMENDMENT INDICATES THAT MONEY MUST BE USED BY THE STATE OF
UTAH "FOR THE HEALTH, EDUCATION, AND GENERAL WELFARE OF THE NAVAJO
INDIANS RESIDING IN SAN JUAN COUNTY" AND THAT "CONTRIBUTION MAY BE MADE
TO PROJECTS AND FACILITIES WITHIN SAID AREA THAT ARE NOT EXCLUSIVELY
FOR THE BENEFITS OF THE BENEFICIARIES HEREUNDER IN PROPORTION TO THE
BENEFITS TO BE RECEIVED THEREFROM BY SAID BENEFICIARIES, AS MAY BE
DETERMINED BY THE STATE OF UTAH . . . " IBID.

THE 1933 ACT GAVE TITLE TO THE LAND AND RIGHT TO THE FUND, NOT TO
THE TRIBE OF THE NAVAJO, BUT TO THE ANETH COMMUNITY.  /2/  I DO NOT
BELIEVE THAT UNDER THE CIRCUMSTANCES OF THIS CASE CONGRESS HAD THE
POWER TO EXPAND THE CLASS OF BENEFICIARIES TO INCLUDE THE WHOLE TRIBE. 

THE OCCUPANTS OF THE EXTENSION HAVE BEEN A SEPARATE COMMUNITY FOR
MANY GENERATIONS.  THEIR CLAIM OF RIGHT BY CONTINUOUS POSSESSION
PRECEDES THE TRANSFER OF TITLE BY THE UNITED STATES GOVERNMENT. 
CONGRESS MADE PROVISION FOR THE SECRETARY OF THE INTERIOR TO PLACE
OTHER TRIBES ON THE LAND AND, IF HE DID, THEIR CLAIM WOULD BE BASED ON
TERRITORY, NOT MEMBERSHIP.  SINCE THE RIGHTS WERE VESTED IN THOSE WHO
LIVED ON THE ANETH EXTENSION, I DO NOT SEE HOW THEY CAN BE EXTENDED TO
OUTSIDERS. 

IN GRITTS V. FISHER, 224 U.S. 640, THE COURT UPHELD THE POWER OF
CONGRESS TO EXPAND THE BENEFICIARIES OF CERTAIN INDIAN LAND TO THE
CHILDREN OF THOSE WHO ALREADY ENJOYED THOSE RIGHTS.  HERE THE EXPANSION
IS NOT LIMITED TO THOSE OF THE SAME BLOOD LINE.  BUT, MORE IMPORTANT,
CONGRESS HAD A DIFFERENT LEGAL RELATION TO THE CHEROKEES THAN IT DOES
TO THE APPELLEES.  "(THE MEMBERS OF THIS TRIBE WERE WARDS OF THE UNITED
STATES, WHICH WAS FULLY EMPOWERED, WHENEVER IT SEEMED WISE TO DO SO, TO
ASSUME FULL CONTROL OVER THEM AND THEIR AFFAIRS, TO DETERMINE WHO WERE
SUCH MEMBERS, TO ALLOT AND DISTRIBUTE THE TRIBAL LANDS AND FUNDS . . .
" ID., AT 642.  THE 1933 ACT STATES THAT THE LANDS "ARE HEREBY,
PERMANENTLY WITHDRAWN FROM ALL FORMS OF ENTRY OR DISPOSAL FOR THE
BENEFIT OF THE NAVAJO AND SUCH OTHER INDIANS AS THE SECRETARY OF THE
INTERIOR MAY SEE FIT TO SETTLE THEREON."  47 STAT. 1418.  THAT WOULD
SEEM TO FREEZE THE EXISTING LEGAL RIGHTS IN THAT AREA OF THE ANETH
EXTENSION TO THE INHABITANTS.  THE LEGAL EFFECT SEEMS LIKE A DISCLAIMER
ON THE PART OF THE UNITED STATES OF ANY RIGHT IN EITHER THE LAND OR THE
MINERALS.  IT IS DIFFICULT FOR ME TO SEE HOW CONGRESS HAS POWER TO
CHANGE THE SCHEME WITHOUT PAYMENT OF JUST COMPENSATION.  AFTER ALL,
INDIANS ARE BENEFICIARIES OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  UNITED STATES V. CREEK NATION, 295 U.S. 103; SHOSHONE TRIBE
OF INDIANS V. UNITED STATES, 299 U.S. 476.  THEY TOO ARE PEOPLE, NOT
SHEEP OR CATTLE THAT CAN BE GIVEN OR DENIED WHATEVER THEIR OVERSEER
DECREES. 

INDIANS ARE ALSO BENEFICIARIES OF THE JUST COMPENSATION CLAUSE OF
THE FIFTH AMENDMENT.  CHIPPEWA INDIANS OF MINNESOTA V. UNITED STATES,
305 U.S. 479; UNITED STATES V. KLAMATH AND MOADOC TRIBES, 304 U.S. 119;
SIOUX TRIBE OF INDIANS V. UNITED STATES, 316 U.S. 317.  WHEN THERE IS A
TAKING OF INDIAN LANDS, THE COMPENSATION MUST TAKE INTO ACCOUNT THE
MINERAL RIGHTS WHICH ARE PART OF THE LANDS.  UNITED STATES V. SHOSHONE
TRIBE OF INDIANS, 304 U.S. 111.  WHAT THEN CONSTITUTES A TAKING?  THE
MAJORITY FINDS NO TAKING BECAUSE OWNERSHIP ALREADY EXISTED IN THE
NAVAJO TRIBE.  THE 1933 ACT STATES, HOWEVER, THAT ALL LANDS ARE
"PERMANENTLY WITHDRAWN FROM ALL FORMS OF ENTRY OR DISPOSAL FOR THE
BENEFIT OF THE NAVAJO AND SUCH OTHER INDIANS AS THE SECRETARY OF THE
INTERIOR MAY SEE FIT TO SETTLE THEREON," 47 STAT. 1418.  THAT ACT
PLAINLY INDICATES THAT ONLY THOSE RESIDING ON THAT TRACT, NOT THE TRIBE
AS A WHOLE, WERE THE BENEFICIARIES. 

IF THE ROYALTY GRANTED BY THE 1933 ACT HAD BEEN TO THE STANDARD OIL
CO. OR ANY OTHER PRODUCER OF OIL, NO ONE WOULD DARE SAY THAT THE
ROYALTY COULD BE ASSIGNED BY A SUBSEQUENT CONGRESS TO AN OIL CONSORTIUM
WITHOUT PAYMENT OF JUST COMPENSATION.  WHENEVER WE HAVE MADE GRANTS OF
PUBLIC LANDS OR INTERESTS THEREIN TO INDIANS THE COURT HAS HELD THAT
THE FACT THAT INDIANS ARE WARDS AND THE UNITED STATES A GUARDIAN DOES
NOT MAKE THE INDIAN TITLE DEFEASIBLE.  THE COURT IN LANE V. PUEBLO OF
SANTA ROSA, 249 U.S. 110, 113, HELD THAT IF THE UNITED STATES WERE
ALLOWED TO TAKE LANDS FROM INDIANS, "(THAT WOULD NOT BE AN EXERCISE OF
GUARDIANSHIP, BUT AN ACT OF CONFISCATION."     IN UNITED STATES V.
CREEK NATION, 295 U.S.,AT 109-110, THE COURT SAID: 

"THE TRIBE WAS A DEPENDENT INDIAN COMMUNITY UNDER THE GUARDIANSHIP
OF THE UNITED STATES, AND THEREFORE ITS PROPERTY AND AFFAIRS WERE
SUBJECT TO THE CONTROL AND MANAGEMENT OF THAT GOVERNMENT.  BUT THIS
POWER TO CONTROL AND MANAGE WAS NOT ABSOLUTE.  WHILE EXTENDING TO ALL
APPROPRIATE MEASURES FOR PROTECTING AND ADVANCING THE TRIBE, IT WAS
SUBJECT TO LIMITATIONS INHERING IN SUCH A GUARDIANSHIP AND TO PERTINENT
CONSTITUTIONAL RESTRICTIONS.  IT DID NOT ENABLE THE UNITED STATES TO
GIVE THE TRIBAL LANDS TO OTHERS, OR TO APPROPRIATE THEM TO ITS OWN
PURPOSES, WITHOUT RENDERING, OR ASSUMING AN OBLIGATION TO RENDER, JUST
COMPENSATION FOR THEM . . . " 

THE PRESENT CASES ARE CLOSE TO SHOSHONE TRIBE OF INDIANS V. UNITED
STATES, 299 U.S. 476, WHERE CONGRESS REPEATEDLY PUT ARAPAHOES ON
SHOSHONE LANDS ACQUIRED UNDER A TREATY.  THIS COURT, SPEAKING THROUGH
MR. JUSTICE CARDOZO, ALLOWED DAMAGES TO THE SHOSHONES: 

     "CONFUSION IS LIKELY TO RESULT FROM SPEAKING OF THE WRONG TO

  THE SHOSHONES AS A DESTRUCTION OF THEIR TITLE.  TITLE IN THE

STRICT SENSE WAS ALWAYS IN THE UNITED STATES, THOUGH THE

SHOSHONES HAD THE TREATY RIGHT OF OCCUPANCY WITH ALL ITS

 BENEFICIAL INCIDENTS . . . WHAT THOSE INCIDENTS ARE, IT IS

  NEEDLESS TO CONSIDER NOW . . . THE RIGHT OF OCCUPANCY IS THE

  PRIMARY ONE TO WHICH THE INCIDENTS ATTACH, AND DIVISION OF THE

  RIGHT WITH STRANGERS IS AN APPROPRIATION OF THE LAND PRO TANTO,

  IN SUBSTANCE, IF NOT IN FORM."  ID., AT 496. 

AND QUOTING FROM UNITED STATES V. COOK, 19 WALL.  591, MR. JUSTICE
CARDOZO ADDED, 

"THE RIGHT OF THE INDIANS TO THE OCCUPANCY OF THE LANDS PLEDGED TO
THEM, MAY BE ONE OF OCCUPANCY ONLY, BUT IT IS 'AS SACRED AS THAT OF THE
UNITED STATES TO THE FEE.'"  ID., AT 497. 

WHAT POWER REMAINS IN CONGRESS AFTER THE EXPRESS PURPOSE OF THE ACT
"PERMANENTLY (TO) WITHDRAW" THE LANDS FROM DISPOSAL? 

PUBLIC LANDS ARE USUALLY SUBJECT TO DISPOSITION BY PATENT AND UPON
ITS ISSUANCE, CONTROL OVER THE TRANSACTION CEASES AND THE PATENT CAN
ONLY BE SET ASIDE BY JUDICIAL PROCEEDINGS IN THE COURTS.  MICHIGAN LAND
& LUMBER CO. V. RUST, 168 U.S. 589; MOORE V. ROBBINS, 96 U.S. 530. 
THUS, WHEN CONGRESS PASSED LEGISLATION GIVING PUBLIC LANDS TO THE
RAILROADS, IT WAS CONSIDERED A CONTRACT WHICH COULD NOT BE BROKEN BY
CONGRESS WHEN IT SOUGHT TO USE THE LANDS AS A WATER-POWER SITE, PAYNE
V. CENTRAL PACIFIC R. CO., 255 U.S. 228; NOR COULD THE SECRETARY
RECLAIM THE PROPERTY.  UNITED STATES V. NORTHERN PACIFIC R. CO., 256
U.S. 51; SANTA FE PACIFIC CO. V. FALL, 259 U.S. 197, 199.  AN ENTRYMAN
ON A HOMESTEAD CLAIM DOES NOT ACHIEVE TITLE UNTIL CERTAIN TIME AND WORK
CONDITIONS ARE MET.  43 U.S.C. 161-165.  YET, DURING THIS PERIOD HE HAS
THE RIGHT TO EXCLUSIVE POSSESSION AND USE, UNLESS THE PATENT WAS
SECURED BY FRAUD.  PATENTS ARE NOT ISSUED IN OIL AND GAS EXPLORATION
BUT LEASES ARE.  30 U.S.C. 226.  BUT THAT FACT DOES NOT AFFECT THE
POWER TO CANCEL THE LEASES.  THAT CAN ONLY BE DONE BY A FAILURE OF THE
LESSEE TO COMPLY WITH THE LEASE, THE STATUTE, AND REGULATIONS.  30
U.S.C. 188.  PAN AMERICAN PETROLEUM CORP. V. PIERSON, 284 F.2D 649. 

UNTIL LANDS ARE PATENTED, TITLE REMAINS IN THE UNITED STATES.  YET
EVEN BEFORE A PATENT ISSUES THE CLAIMS ARE "VALID AGAINST THE UNITED
STATES IF THERE HAS BEEN A DISCOVERY OF MINERAL WITHIN THE LIMITS OF
THE CLAIM, IF THE LANDS ARE STILL MINERAL, AND IF OTHER STATUTORY
REQUIREMENTS HAVE BEEN MET."  BEST V. HUMBOLDT MINING CO., 371 U.S.
334, 336. 

THE DEVICES FOR DOING THE INDIANS IN, WHEN IT COMES TO ROYALTIES IN
GAS OR OIL LANDS, ARE NUMEROUS.  SEE WHITE V. SINCLAIR PRAIRIE OIL CO.,
139 F.2D 103.  BUT THE OWNERS OF OIL AND GAS INTERESTS (WHETHER THOSE
INTERESTS BE LEGAL OR EQUITABLE) NORMALLY HAVE AN INTEREST SEPARATE AND
APART FROM THE LAND WHERE THE OIL AND GAS ARE DISCOVERED.  SEE LANE V.
HUGHES, 228 S.W.2D 986; 3 E. KUNTZ, OIL AND GAS, CC. 38 AND 42 (1967);
V. KULP, OIL AND GAS RIGHTS SEC. 10.36 ET SEQ. (1954).  IT IS STRANGE
LAW, INDEED, WHEN THE GUARDIAN (THE UNITED STATES) IS ALLOWED TO DO IN
THE WARDS (THE INDIANS) BY DEPRIVING THEM OF THEIR EQUITABLE INTEREST
IN THE OIL ROYALTIES WHICH HAD BEEN GRANTED OR BY REDUCING THEIR SHARE
OF THE ROYALTIES GRANTED. 

THE PROBLEMS OF THIS CASE ARE TYPICAL OF THOSE THAT HAVE PLAGUED THE
INDIANS FROM THE BEGINNING.  WE SHOULD PUT THE CASES DOWN FOR ORAL
ARGUMENT TO MAKE CERTAIN THAT THESE PRIMITIVE NAVAJOS RECEIVE THE FULL
BENEFIT OF THE LAW. 

/1/  THE ACT ADMITTING UTAH TO THE UNION PROVIDED: "THAT THE PEOPLE
INHABITING SAID PROPOSED STATE DOE AGREE AND DECLARE THAT THEY FOREVER
DISCLAIM ALL RIGHT AND TITLE TO THE UNAPPROPRIATED PUBLIC LANDS LYING
WITHIN THE BOUNDARIES THEREOF; AND TO ALL LANDS LYING WITHIN SAID
LIMITS OWNED OR HELD BY ANY INDIAN OR INDIAN TRIBES; AND THAT UNTIL THE
TITLE THERETO SHALL HAVE BEEN EXTINGUISHED BY THE UNITED STATES, THE
SAME SHALL BE AND REMAIN SUBJECT TO THE DISPOSITION OF THE UNITED
STATES, AND SAID INDIAN LANDS SHALL REMAIN UNDER THE ABSOLUTE
JURISDICTION AND CONTROL OF THE CONGRESS OF THE UNITED STATES."  28
STAT. 108. 

/2/  THAT ACT (47 STAT. 1418), AFTER DESCRIBING THE ANETH EXTENSION
BY METES AND BOUNDS, PROVIDED THAT THOSE PUBLIC LANDS "BE, AND THE SAME
ARE HEREBY, PERMANENTLY WITHDRAWN FROM ALL FORMS OF ENTRY OR DISPOSAL
FOR THE BENEFIT OF THE NAVAJO AND SUCH OTHER INDIANS AS THE SECRETARY
OF THE INTERIOR MAY SEE FIT TO SETTLE THEREON:  PROVIDED, THAT NO
FURTHER ALLOTMENTS OF LANDS TO INDIANS ON THE PUBLIC DOMAIN SHALL BE
MADE IN SAN JUAN COUNTY, UTAH, NOR SHALL FURTHER INDIAN HOMESTEADS BE
MADE IN SAID COUNTY UNDER THE ACT OF JULY 4, 1884 (23 STAT. 96; U.S.C.,
TITLE 43, SEC. 190).  SHOULD OIL OR GAS BE PRODUCED IN PAYING
QUANTITIES WITHIN THE LANDS HEREBY ADDED TO THE NAVAJO RESERVATION, 37
1/2 PER CENTUM OF THE NET ROYALTIES ACCRUING THEREFROM DERIVED FROM
TRIBAL LEASES SHALL BE PAID TO THE STATE OF UTAH:  PROVIDED, THAT SAID
37 1/2 PER CENTUM OF SAID ROYALTIES SHALL BE EXPENDED BY THE STATE OF
UTAH IN THE TUITION OF INDIAN CHILDREN IN WHITE SCHOOLS AND/OR IN THE
BUILDING OR MAINTENANCE OF ROADS ACROSS THE LANDS DESCRIBED IN SECTION
1 HEREOF, OR FOR THE BENEFIT OF THE INDIANS RESIDING THEREIN." 
..END :








WARD V. VILLAGE OF MONROEVILLE, 409 U.S. 57 


       WARD V. VILLAGE OF MONROEVILLE

        CERTIORARI TO THE SUPREME COURT OF OHIO

        NO. 71-496.  ARGUED OCTOBER 17,1972-- DECIDED NOVEMBER 14,

           1972 


PETITIONER WAS DENIED A TRIAL BEFORE A DISINTERESTED AND IMPARTIAL
JUDICIAL OFFICER AS GUARANTEED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT WHERE HE WAS COMPELLED TO STAND TRIAL FOR TRAFFIC
OFFENSES BEFORE THE MAYOR, WHO WAS RESPONSIBLE FOR VILLAGE FINANCES AND
WHOSE COURT THROUGH FINES, FORFEITURES, COSTS, AND FEES PROVIDED A
SUBSTANTIAL PORTION OF VILLAGE FUNDS.  TUMEY V. OHIO, 273 U.S. 510.  A
STATUTORY PROVISION FOR THE DISQUALIFICATION OF INTERESTED OR BIASED
JUDGES DID NOT AFFORD PETITIONER A SUFFICIENT SAFEGUARD, AND IT IS OF
NO CONSTITUTIONAL RELEVANCE THAT PETITIONER COULD LATER BE TRIED DE
NOVO IN ANOTHER COURT, AS HE WAS ENTITLED TO AN IMPARTIAL JUDGE IN THE
FIRST INSTANCE.  PP. 59-62. 

27 OHIO ST.2D 179, 271 N.E.2D 757, REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, STEWART, MARSHALL, BLACKMUN, AND POWELL, JJ., JOINED. 
WHITE, J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, J., JOINED,
POST, P. 62. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PURSUANT TO OHIO REV. CODE ANN. SEC. 1905.01 ET SEQ. (1968), WHICH
AUTHORIZES MAYORS TO SIT AS JUDGES IN CASES OF ORDINANCE VIOLATIONS AND
CERTAIN TRAFFIC OFFENSES, THE MAYOR OF MONROEVILLE, OHIO, CONVICTED
PETITIONER OF TWO TRAFFIC OFFENSES AND FINED HIM $50 ON EACH.  THE OHIO
COURT OF APPEALS FOR HURON COUNTY, 21 OHIO APP.2D 17, 254 N.E.2D 375
(1969), AND THE OHIO SUPREME COURT, 27 OHIO ST.2D 179, 271 N.E.2D 757
(1971), THREE JUSTICES DISSENTING, SUSTAINED THE CONVICTION, REJECTING
PETITIONER'S OBJECTION THAT TRIAL BEFORE A MAYOR WHO ALSO HAD
RESPONSIBILITIES FOR REVENUE PRODUCTION AND LAW ENFORCEMENT DENIED HIM
A TRIAL BEFORE A DISINTERESTED AND IMPARTIAL JUDICIAL OFFICER AS
GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  WE
GRANTED CERTIORARI.  404 U.S. 1058 (1972). 

THE MAYOR OF MONROEVILLE HAS WIDE EXECUTIVE POWERS AND IS THE CHIEF
CONSERVATOR OF THE PEACE.  HE IS PRESIDENT OF THE VILLAGE COUNCIL,
PRESIDES AT ALL MEETINGS, VOTES IN CASE OF A TIE, ACCOUNTS ANNUALLY TO
THE COUNCIL RESPECTING VILLAGE FINANCES, FILLS VACANCIES IN VILLAGE
OFFICES AND HAS GENERAL OVERALL SUPERVISION OF VILLAGE AFFAIRS.  A
MAJOR PART OF VILLAGE INCOME IS DERIVED FROM THE FINES, FORFEITURES,
COSTS, AND FEES IMPOSED BY HIM IN HIS MAYOR'S COURT.  THUS, IN 1964
THIS INCOME CONTRIBUTED $23,589.50 OF TOTAL VILLAGE REVENUES OF
$46,355.38; IN 1965 IT WAS $18,508.95 OF $46,752.60; IN 1966 IT WAS
$16,085 OF $43,585.13; IN 1967 IT WAS $20,060.65 OF $53,931.43; AND IN
1968 IT WAS $23,439.42 OF $52,995.95.  THIS REVENUE WAS OF SUCH
IMPORTANCE TO THE VILLAGE THAT WHEN LEGISLATION THREATENED ITS LOSS,
THE VILLAGE RETAINED A MANAGEMENT CONSULTANT FOR ADVICE UPON THE
PROBLEM.  /1/ 

CONCEDING THAT "THE REVENUE PRODUCED FROM A MAYOR'S COURT PROVIDES A
SUBSTANTIAL PORTION OF A MUNICIPALITY'S FUNDS," THE SUPREME COURT OF
OHIO HELD NONETHELESS THAT "SUCH FACT DOES NOT MEAN THAT A MAYOR'S
IMPARTIALITY IS SO DIMINISHED THEREBY THAT HE CANNOT ACT IN A
DISINTERESTED FASHION IN A JUDICIAL CAPACITY."  27 OHIO ST.2D,AT 185,
271 N.E.2D, AT 761.  WE DISAGREE WITH THAT CONCLUSION. 

THE ISSUE TURNS, AS THE OHIO COURT ACKNOWLEDGED, ON WHETHER THE
MAYOR CAN BE REGARDED AS AN IMPARTIAL JUDGE UNDER THE PRINCIPLES LAID
DOWN BY THIS COURT IN TUMEY V. OHIO, 273 U.S. 510 (1927).  THERE,
CONVICTIONS FOR PROHIBITION LAW VILATIONS RENDERED BY THE MAYOR OF
NORTH COLLEGE HILL, OHIO, WERE REVERSED WHEN IT APPEARED THAT, IN
ADDITION TO HIS REGULAR SALARY, THE MAYOR RECEIVED $696.35 FROM THE
FEES AND COSTS LEVIED BY HIM AGAINST ALLEGED VIOLATORS.  THIS COURT
HELD THAT "IT CERTAINLY VIOLATES THE FOURTEENTH AMENDMENT, AND DEPRIVES
A DEFENDANT IN A CRIMINAL CASE OF DUE PROCESS OF LAW, TO SUBJECT HIS
LIBERTY OR PROPERTY TO THE JUDGMENT OF A COURT THE JUDGE OF WHICH HAS A
DIRECT, PERSONAL, SUBSTANTIAL, PECUNIARY INTEREST IN REACHING A
CONCLUSION AGAINST HIM IN HIS CASE."  ID., AT 523. 

THE FACT THAT THE MAYOR THERE SHARED DIRECTLY IN THE FEES AND COSTS
DID NOT DEFINE THE LIMITS OF THE PRINCIPLE.  ALTHOUGH "THE MERE UNION
OF THE EXECUTIVE POWER AND THE JUDICIAL POWER IN HIM CAN NOT BE SAID TO
VIOLATE DUE PROCESS OF LAW," ID., AT 534, THE TEST IS WHETHER THE
MAYOR'S SITUATION IS ONE "WHICH WOULD OFFER A POSSIBLE TEMPTATION TO
THE AVERAGE MAN AS A JUDGE TO FORGET THE BURDEN OF PROOF REQUIRED TO
CONVICT THE DEFENDANT, OR WHICH MIGHT LEAD HIM NOT TO HOLD THE BALANCE
NICE, CLEAR AND TRUE BETWEEN THE STATE AND THE ACCUSED . . . " ID., AT
532.  PLAINLY THAT "POSSIBLE TEMPTATION" MAY ALSO EXIST WHEN THE
MAYOR'S EXECUTIVE RESPONSIBILITIES FOR VILLAGE FINANCES MAY MAKE HIM
PARTISAN TO MAINTAIN THE HIGH LEVEL OF CONTRIBUTION FROM THE MAYOR'S
COURT.  THIS, TOO, IS A "SITUATION IN WHICH AN OFFICIAL PERFORCE
OCCUPIES TWO PRACTICALLY AND SERIOUSLY INCONSISTENT POSITIONS, ONE
PARTISAN AND THE OTHER JUDICIAL, (AND) NECESSARILY INVOLVES A LACK OF
DUE PROCESS OF LAW IN THE TRIAL OF DEFENDANTS CHARGED WITH CRIMES
BEFORE HIM."  ID., AT 534. 

THIS SITUATION IS WHOLLY UNLIKE THAT IN DUGAN V. OHIO, 277 U.S. 61
(1928), WHICH THE OHIO SUPREME COURT DEEMED CONTROLLING HERE.  THERE
THE MAYOR OF XENIA, OHIO, HAD JUDICIAL FUNCTIONS BUT ONLY VERY LIMITED
EXECUTIVE AUTHORITY.  THE CITY WAS GOVERNED BY A COMMISSION OF FIVE
MEMBERS, INCLUDING THE MAYOR, WHICH EXERCISED ALL LEGISLATIVE POWERS. 
A CITY MANAGER, TOGETHER WITH THE COMMISSION, EXERCISED ALL EXECUTIVE
POWERS.  IN THOSE CIRCUMSTANCES, THIS COURT HELD THAT THE MAYOR'S
RELATIONSHIP TO THE FINANCES AND FINANCIAL POLICY OF THE CITY WAS TOO
REMOTE TO WARRANT A PRESUMPTION OF BIAS TOWARD CONVICTION IN
PROSECUTIONS BEFORE HIM AS JUDGE. 

RESPONDENT URGES THAT OHIO'S STATUTORY PROVISION, OHIO REV. CODE
ANN. SEC. 2937.20 (SUPP. 1971), FOR THE DISQUALIFICATION OF INTERESTED,
BIASED, OR PREJUDICED JUDGES IS A SUFFICIENT SAFEGUARD TO PROTECT
PETITIONER'S RIGHTS.  THIS ARGUMENT IS NOT PERSUASIVE.  FIRST, IT IS
HIGHLY DUBIOUS THAT THIS PROVISION WAS AVAILABLE TO RAISE PETITIONER'S
BROAD CHALLENGE TO THE MAYOR'S COURT OF THIS VILLAGE IN RESPECT TO ALL
PROSECUTIONS THERE IN WHICH FINES MAY BE IMPOSED.  THE PROVISION IS
APPARENTLY DESIGNED ONLY FOR OBJECTION TO A PARTICULAR MAYOR "IN A
SPECIFIC CASE WHERE THE CIRUMSTANCES IN THAT MUNICIPALITY MIGHT WARRANT
A FINDING OF PREJUDICE IN THAT CASE."  27 OHIO ST.2D,AT 184, 271
N.E.2D,AT 760 (EMPHSIS ADDED).  IF THIS MEANS THAT AN ACCUSED MUST SHOW
SPECIAL PREJUDICE IN HIS PARTICULAR CASE, THE STATUTE REQUIRES TOO MUCH
AND PROTECTS TOO LITTLE.  BUT EVEN IF PETITIONER MIGHT HAVE UTILIZED
THE PROCEDURE TO MAKE HIS OBJECTION, THE OHIO SUPREME COURT PASSED UPON
HIS CONSTITUTIONAL CONTENTION DESPITE PETITIONER'S FAILURE TO INVOKE
THE PROCEDURE.  IN THAT CIRCUMSTANCE, SEE RALEY V. OHIO, 360 U.S. 423,
436 (1959), HE MAY BE HEARD IN THIS COURT TO URGE THAT THE OHIO SUPREME
COURT ERRED IN HOLDING THAT HE HAD NOT ESTABLISHED HIS FOURTEENTH
AMENDMENT CLAIM. 

RESPONDENT ALSO ARGUES THAT ANY UNFAIRNESS AT THE TRIAL LEVEL CAN BE
CORRECTED ON APPEAL AND TRIAL DE NOVO IN THE COUNTY COURT OF COMMON
PLEAS.  WE DISAGREE.  THIS "PROCEDURAL SAFEGUARD" DOES NOT GUARANTEE A
FAIR TRIAL IN THE MAYOR'S COURT; THERE IS NOTHING TO SUGGEST THAT THE
INCENTIVE TO CONVICT WOULD BE DIMINISHED BY THE POSSIBILITY OF REVERSAL
ON APPEAL.  NOR, IN ANY EVENT, MAY THE STATE'S TRIAL COURT PROCEDURE BE
DEEMED CONSTITUTIONALLY ACCEPTABLE SIMPLY BECAUSE THE STATE EVENTUALLY
OFFERS A DEFENDANT AN IMPARTIAL ADJUDICATION.  PETITIONER IS ENTITLED
TO A NEUTRAL AND DETACHED JUDGE IN THE FIRST INSTANCE.  /2/
ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF OHIO IS REVERSED AND
THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

IT IS SO ORDERED. 

/1/  ORDINANCE NO. 59-9: 

"WHEREAS, THE LEGISLATION KNOWN AS THE COUNTY COURT LAW PASSED BY
THE 102ND GENERAL ASSEMBLY GREATLY REDUCES THE JURISDICTIONAL POWERS OF
MAYOR COURTS AS OF JANUARY 1, 1960; AND 

"WHEREAS, SUCH RESTRICTIONS MAY PLACE SUCH A HARSHIP UPON LAW
ENFORCEMENT PERSONNEL IN THIS VILLAGE AND SURROUNDING AREAS AS TO
ENDANGER THE HEALTH, WELFARE AND SAFETY OF PERSONS RESIDING OR BEING IN
OUR VILLAGE; AND 

"WHEREAS, OTHER SUCH PROVISIONS OF THIS LEGISLATION MAY CAUSE SUCH A
REDUCTION IN REVENUE TO THIS VILLAGE THAT AN ADDITIONAL BURDEN MAY
RESULT FROM INCREASED TAXATION AND/OR CURTAILMENT OF SERVICES ESSENTIAL
TO THE HEALTH, WELFARE AND SAFETY OF THIS VILLAGE; . . . 

"BE IT ORDAINED BY THE VILLAGE OF (MONROEVILLE) OHIO: 

"SECTION 1.  THAT THE SERVICES OF THE MANAGEMENT CONSULTING FIRM OF
MIDWEST CONSULTANTS, INCORPORATED OF SANDUSKY, OHIO, BE EMPLOYED TO
CONDUCT A SURVEY AND STUDY TO ASCERTAIN THE EXTENT OF THE EFFECTS OF
THE COUNTY COURT LAW ON LAW ENFORCEMENT AND LOSS OF REVENUE IN AND TO
THE VILLAGE OF (MONROEVILLE), OHIO, SO THAT SAID VILLAGE CAN PREPARE
FOR THE FUTURE OPERATIONS OF THE VILLAGE TO SAFEGUARD THE HEATH (SIC),
WELFARE AND SAFETY OF ITS CITIZENS . . . " 

MOREOVER, MONROEVILLE'S CHIEF OF POLICE, APPOINTED BY THE MAYOR,
OHIO REV. CODE ANN. SEC. 737.15 (SUPP. 1971), TESTIFIED THAT IT WAS HIS
REGULAR PRACTICE TO CHARGE SUSPECTS UNDER A VILLAGE ORDINANCE, RATHER
THAN A STATE STATUTE, WHENEVER A CHOICE EXISTED.  APP. 9.  THAT POLICY
MUST BE VIEWED IN LIGHT OF SEC. 733.40 (1954), WHICH PROVIDES THAT
FINES AND FORFEITURES COLLECTED BY THE MAYOR IN STATE CASES SHALL BE
PAID TO THE COUNTRY TREASURY, WHEREAS FINES AND FORFEITURES COLLECTED
IN ORDINANCE AND TRAFFIC CASES SHALL BE PAID INTO THE MUNICIPAL
TREASURY.  PETITIONER ASSERTS THAT THE MAYOR CONCEDED AT TRIAL THAT
THIS POLICY WAS CARRIED OUT UNDER THE MAYOR'S ORDERS.  THE RECORD LENDS
ITSELF TO THIS INFERENCE.  APP. 10-11. 

/2/  THE QUESTION PRESENTED ON THIS RECORD IS THE CONSTITUTIONALITY
OF THE MAYOR'S PARTICIPATION IN THE ADJUDICATION AND PUNISHMENT OF A
DEFENDANT IN A LITIGATED CASE WHERE HE ELECTS TO CONTEST THE CHARGES
AGAINST HIM.  WE INTIMATE NO VIEW THAT IT WOULD BE UNCONSTITUTIONAL TO
PERMIT A MAYOR OR SIMILAR OFFICIAL TO SERVE IN ESSENTIALLY A
MINISTERIAL CAPACITY IN A TRAFFIC OR ORDINANCE VIOLATION CASE TO ACCEPT
A FREE AND VOLUNTARY PLEA OF GUILTY OR NOLO CONTENDERE, A FORFEITURE OF
COLLATERAL, OR THE LIKE. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
DISSENTING. 

THE OHIO MAYOR WHO JUDGED THIS CASE HAD NO DIRECT FINANCIAL STAKE IN
ITS OUTCOME.  TUMEY V. OHIO, 273 U.S. 510 (1927), IS THEREFORE NOT
CONTROLLING, AND I WOULD NOT EXTEND IT. 

TO JUSTIFY STRIKING DOWN THE OHIO SYSTEM ON ITS FACE, THE COURT MUST
ASSUME EITHER THAT EVERY MAYOR-JUDGE IN EVERY CASE WILL DISREGARD HIS
OATH AND ADMINISTER JUSTICE CONTRARY TO CONSTITUTIONAL COMMANDS OR THAT
THIS WILL HAPPEN OFTEN ENOUGH TO WARRANT THE PROPHYLACTIC, PER SE RULE
URGED BY PETITIONER.  I CAN MAKE NEITHER ASSUMPTION WITH RESPECT TO
OHIO MAYORS NOR WITH RESPECT TO SIMILAR OFFICIALS IN 16 OTHER STATES. 
HENCE, I WOULD LEAVE THE DUE PROCESS MATTER TO BE DECIDED ON A CASE-BY
CASE BASIS, A QUESTION WHICH, AS I UNDERSTAND THE POSTURE OF THIS CASE,
IS NOT NOW BEFORE US.  I WOULD AFFIRM THE JUDGMENT. 

BERNARD A. BERKMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS NIKI Z. SCHWARTZ. 

FRANKLIN D. ECKSTEIN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS JOSEPH F. DUSH. 
..END :
















RIVAS V. COZENS, 409 U.S. 55 


       RIVAS ET AL. V. COZENS, DIRECTOR, DEPARTMENT OF MOTOR

           VEHICLES OF CALIFORNIA, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

   NORTHERN DISTRICT OF CALIFORNIA

        NO. 71-5780.  DECIDED NOVEMBER 13, 1972 


VACATED AND REMANDED.  SEE:  327 F.SUPP.  867. 

PER CURIAM. 

THE APPELLANTS' SUPPLEMENTAL BRIEF FILED OCTOBER 14, 1972, RECITES: 

     "THE CALIFORNIA SUPREME COURT'S DECISION IN RIOS (V. COZENS, 7

  CAL.3D 792, 499 P.2D 979 (1972),) HAS BEEN GIVEN FULL PROSPECTIVE

  AND RETROACTIVE EFFECT; CAL. SUP. CT. ORDER DENYING STAY PENDING

  APPEAL, FILED AUGUST 30, 1972.  ACCORDINGLY, THE INDIVIDUAL

PETITIONERS HEREIN, CELESTION V. RIVAS AND ZEFERINO SAMANIEGO,

  HAVE NOW BEEN ACCORDED THE OPPORTUNITY FOR A PERSONAL EVIDENTIARY

  HEARING REGARDING THE SUSPENSION OF THEIR DRIVER'S LICENSES." 

ACCORDINGLY THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED, THE JUDGMENT IS VACATED, AND THE CASE IS REMANDED TO THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TO
DETERMINE WHETHER THIS CASE HAS BECOME MOOT. 
..END :














GIVENS V. W. T. GRANT CO., 409 U.S. 56 


       GIVENS ET AL. V. W. T. GRANT CO.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

 COURT OF APPEALS FOR THE SECOND CIRCUIT

        NO. 72-5256.  DECIDED NOVEMBER 13, 1972 


CERTIORARI GRANTED; 457 F.2D 612, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS FACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT FOR RECONSIDERATION OF ITS ORDER OF DISMISSAL IN LIGHT OF 28
U.S.C. 1447(C). 
..END :










NLRB V. INTERNATIONAL VAN LINES, 409 U.S. 48 


       NATIONAL LABOR RELATIONS BOARD V. INTERNATIONAL VAN LINES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 71-895.  ARGUED OCTOBER 12, 1972-- DECIDED NOVEMBER 7,

   1972 


FOUR EMPLOYEES OF RESPONDENT REFUSED TO CROSS A PICKET LINE FORMED IN
CONNECTION WITH A UNION'S ORGANIZATION CAMPAIGN.  RESPONDENT THEREAFTER
ADVISED THE EMPLOYEES THAT BECAUSE OF THEIR FAILURE TO REPORT TO WORK
THEY WERE BEING PERMANENTLY REPLACED, WHICH WAS NOT TRUE AT THE TIME OF
THE DISCHARGES.  WHEN RESPONDENT REFUSED REINSTATEMENT, CHARGES WERE
FILED WITH THE NATIONAL LABOR RELATIONS BOARD (NLRB).  CONCLUDING THAT
THE DISCHARGES WERE UNFAIR LABOR PRACTICES UNDER THE NATIONAL LABOR
RELATIONS ACT, AND THAT THE EMPLOYEES THEREBY BECAME UNFAIR LABOR
PRACTICE STRIKERS, THE NLRB ORDERED UNCONDITIONAL REINSTATEMENT WITH
BACK PAY.  THE COURT OF APPEALS REVERSED THAT PORTION OF THE NLRB'S
ORDER, HOLDING THAT THE EMPLOYEES WERE NOT UNFAIR LABOR PRACTICE
STRIKERS, WHO WERE ENTITLED TO UNCONDITIONAL REINSTATEMENT, BUT
ECONOMIC STRIKERS, WHO WERE NOT ENTITLED TO REINSTATEMENT IF THE
EMPLOYER HAD SUBSTANTIAL BUSINESS JUSTIFICATIONS FOR REFUSING TO REHIRE
THEM.  HELD:  THE UNCONDITIONAL REINSTATEMENT OF THE EMPLOYEES WAS
PROPER SINCE THEIR DISCRIMINATORY DISCHARGES PRIOR TO THE TIME THEIR
PLACES WERE FILLED CONSTITUTED UNFAIR LABOR PRACTICES REGARDLESS OF
WHETHER THEY WERE ECONOMIC STRIKERS OR UNFAIR LABOR PRACTICE STRIKERS. 
PP. 52-53. 

448 F.2D 905, REVERSED IN PART. 

STEWARD, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, BRENNAN, WHITE, MARSHALL, POWELL, AND REHNQUIST, JJ.,
JOINED.  BLACKMUN, J., FILED AN OPINION CONCURRING IN THE JUDGMENT,
POST, P. 53. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT IS A MOVING AND STORAGE COMPANY BASED IN SANTA MARIA,
CALIFORNIA.  IN AUGUST 1967, LOCAL 381 OF THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CAHUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA BEGAN A
CAMPAIGN TO ORGANIZE THE EMPLOYEES OF MOVING AND STORAGE FIRMS IN THE
AREA.  BY SEPTEMBER 21, FIVE OF THE RESPONDENT'S EMPLOYEES HAD SIGNED
UNION AUTHORIZATION CARDS; IT IS UNDISPUTED THAT THEY CONSTITUTED A
CLEAR MAJORITY OF WHAT WOULD BE AN APPROPRIATE BARGAINING UNIT. 
INSTEAD OF DEMANDING RECOGNITION BY THE RESPONDENT, THE UNION ON
SEPTEMBER 21, 1967, PETITIONED THE NATIONAL LABOR RELATIONS BOARD FOR
CERTIFICATION AS THE EXCLUSIVE BARGAINING AGENT OF THE RESPONDENT'S
EMPLOYEES. 

SHORTLY THEREAFTER, ON OCTOBER 2 AND 3, THE UNION HELD MEETINGS
WHERE IT WAS ANNOUNCED THAT THE RESPONDENT HAD AT FIRST CONSENTED TO A
REPRESENTATION ELECTION BUT HAD LATER WITHDRAWN IT CONSENT.  IT WAS
DECIDED AT THE OCTOBER 3 MEETING THAT ALL OF THE MOVING AND STORAGE
COMPANIES INVOLVED IN THE UNION ORGANIZATION CAMPAIGN SHOULD BE STRUCK,
AND ON OCTOBER 4, PICKETING COMMENCED AT THE RESPONDENT'S PLACE OF
BUSINESS. 

FOUR OF THE RESPONDENT'S EMPLOYEES, ROBERT AND MANUEL VASQUEZ,
RICHARD DICUS, AND SALVADOR CASILLAS, WERE PRESENT AT THE RESPONDENT'S
PREMISES ON THE MORNING WHEN PICKETING COMMENCED.  THEY REFUSED TO
CROSS THE PICKET LINE.  THE NEXT MORNING, ROBERT AND MANUEL VASQUEZ AND
RICHARD DICUS RECEIVED IDENTICAL TELEGRAMS WHICH READ:  "FOR FAILURE TO
REPORT TO WORK AS DIRECTED AT 7 A.M. ON WEDNESDAY OCT. 4, 1967 YOU ARE
BEING PERMANENTLY REPLACED.  (SIGNED) INTERNATIONAL VAN LINES."  /1/
IT IS UNDISPUTED THAT AT THE TIME OF THE DISCHARGES, THE RESPONDENT HAD
NOT IN FACT HIRED PERMANENT REPLACEMENTS. 

CASILLAS SOUGHT REINSTATEMENT IN LATE NOVEMBER, AND THE OTHER THREE
DISCHARGED EMPLOYEES MADE UNCONDITIONAL OFFERS TO RETURN TO WORK ON
DECEMBER 12.  AT LEAST AS TO THESE THREE, /2/  THE RESPONDENT REFUSED
REINSTATEMENT, CLAIMING THAT IT HAD AT THAT POINT HIRED PERMANENT
REPLACEMENTS.  THE UNION THEN WENT TO THE NATIONAL LABOR RELATIONS
BOARD WITH UNFAIR LABOR PRACTICE CHARGES AGAINST THE RESPONDENT. 

THE BOARD DETERMINED THAT THE LABOR PICKETING THAT COMMENCED ON
OCTOBER 4 WAS ACTIVELY PROTECTED UNDER SEC. 7 OF THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 452, AS AMENDED, 29 U.S.C. 157, AND CONCLUDED
THAT THE SUBSEQUENT DISCHARGES OF STRIKING EMPLOYEES DISCRIMINATED
AGAINST LAWFUL UNION ACTIVITY AND WERE UNFAIR LABOR PRACTICES UNDER
SECS. 8(A)(1) AND 8(A)(3) OF THE ACT, 29 U.S.C. 158(A)(1), (A)(3). 

IT IS SETTLED THAT AN EMPLOYER MAY REFUSE TO REINSTATE ECONOMIC
STRIKERS IF IN THE INTERIM HE HAS TAKEN ON PERMANENT REPLACEMENTS. 
NLRB V. MACKAY RADIO & TELEGRAPH CO., 304 U.S. 333, 345-346.  IT IS
EQUALLY SETTLED THAT EMPLOYEES STRIKING IN PROTEST OF AN EMPLOYER'S
UNFAIR LABOR PRACTICES ARE ENTITLED, ABSENT SOME CONTRACTUAL OR
STATUTORY PROVISION TO THE CONTRARY, TO UNCONDITIONAL REINSTATEMENT
WITH BACK PAY, "EVEN IF REPLACEMENTS FOR THEM HAVE BEEN MADE."  MASTRO
PLASTICS CORP. V. NLRB, 350 U.S. 270, 278.  SINCE THE STRIKE IN THE
INSTANT CASE CONTINUED AFTER THE UNFAIR LABOR PRACTICES HAD BEEN
COMMITTED BY THE EMPLOYER, THE BOARD REASONED THAT THE ORIGINAL
ECONOMIC STRIKE BECAME AN UNFAIR LABOR PRACTICE STRIKE ON OCTOBER 5,
WHEN THE THREE TELEGRAMS WERE SENT.  THE BOARD HELD THE FOUR EMPLOYEES
TO BE UNFAIR LABOR PRACTICE STRIKERS AND, ACCORDINGLY, ORDERED THEIR
UNCONDITIONAL REINSTATEMENT WITH BACK PAY. 

THE BOARD THEN SOUGHT ENFORCEMENT OF ITS ORDER IN THE COURT OF
APPEALS FOR THE NINTH CIRCUIT.  THE COURT OF APPEALS AGREED THAT THE
LABOR PICKETING WAS A LAWFUL ECONOMIC STRIKE, AND THAT THE DISCHARGES
OF THE STRIKING EMPLOYEES WERE UNFAIR LABOR PRACTICES.  448 F.2D 905,
910-911.  NEVERTHELESS, THE COURT OF APPEALS REVERSED THE PORTION OF
THE BOARD'S ORDER PROVIDING FOR REINSTATEMENT WITH BACK PAY, /3/
REASONING AS FOLLOWS: 

"THE STRIKERS WHOSE DISCHARGES CONSTITUTED THE UNFAIR LABOR PRACTICE
WERE, AT THE TIME OF THEIR DISCHARGES, PROTESTING ONLY THE ORIGINAL
GRIEVANCE.  ANY STRIKERS SUBSEQUENTLY DISCHARGED MIGHT LEGITIMATELY BE
CONSIDERED UNFAIR LABOR PRACTICE STRIKERS, FOR THEY WOULD BE PROTESTING
NOT ONLY THE ORIGINAL GRIEVANCE BUT ALSO THE SUBSEQUENT UNFAIR LABOR
PRACTICE.  THE INITIALLY DISCHARGED STRIKERS WERE OBVIOUSLY NOT
PROTESTING THEIR OWN DISCHARGES, WHICH HAD NOT YET OCCURRED.  TO
ASSIMILATE THEIR STATUS TO THAT OF THEIR CO-WORKERS WHO HAD NOT YET
BEEN DISCHARGED WOULD ELIMINATE THE DISTINCTION BETWEEN (THE) ECONOMIC
STRIKER-REINSTATEMENT RULE (MACKAY RADIO & TELEGRAPH) AND THE UNFAIR
LABOR-PRACTICE-STRIKER-REINSTATEMENT RULE (MASTRO PLASTICS) IN CASES
LIKE THIS ONE."  ID., AT 911-912. 

CONSISTENT WITH ITS DETERMINATION THAT THE DISCHARGED EMPLOYEES WERE
ECONOMIC STRIKERS ENTITLED TO REINSTATEMENT ONLY IF THE EMPLOYER COULD
NOT SHOW LEGITIMATE AND SUBSTANTIAL BUSINESS JUSTIFICATIONS FOR
REFUSING TO TAKE THEM BACK, THE COURT OF APPEALS REMANDED THE CASE FOR
FURTHER FINDINGS CONCERNING THE REASONS FOR THE EMPLOYER'S REFUSAL TO
REHIRE THEM.  ID., AT 912.  BECAUSE THIS DECISION APPEARED TO INVOLVE
PRINCIPLES IMPORTANT TO THE ADMINISTRATION OF THE NATIONAL LABOR
RELATIONS ACT AS AMENDED, WE GRANTED THE BOARD'S PETITION FOR
CERTIORARI, 405 U.S. 953. 

BOTH THE BOARD AND THE COURT OF APPEALS HAVE AGREED THAT THE LABOR
PICKETING WAS A LAWFUL ECONOMIC STRIKE, AND THE VALIDITY OF THAT
CONCLUSION IS NOT BEFORE US.  /4/  GIVEN THAT HYPOTHESIS, THE BOARD AND
THE COURT OF APPEALS WERE CLEARLY CORRECT IN CONCLUDING THAT THE
RESPONDENT COMMITTED UNFAIR LABOR PRACTICES WHEN IT FIRED ITS STRIKING
EMPLOYEES.  "(THE DISCHARGE OF ECONOMIC STRIKERS PRIOR . . . TO THE
TIME THEIR PLACES ARE FILLED CONSTITUTES AN UNFAIR LABOR PRACTICE." 
NLRB V. GLOBE WIRELESS, 193 F.2D 748, 750; NLRB V. COMFORT, INC., 365
F.2D 867, 874; NLRB V. MCCATRON, 216 F.2D 212, 215.  WE NEED NOT
DECIDE, HOWEVER, WHETHER THE BOARD WAS CORRECT IN DETERMINING THAT THE
DISCHARGED EMPLOYEES ASSUMED THE STATUS OF UNFAIR LABOR PRACTICE
STRIKERS ON OCTOBER 5, 1967, TO REACH THE CONCLUSION THAT THE COURT OF
APPEALS ERRED IN REFUSING TO ENFORCE THE BOARD'S ORDER OF REINSTATEMENT
WITH BACK PAY. 

UNCONDITIONAL REINSTATEMENT OF THE DISCHARGED EMPLOYEES WAS PROPER
FOR THE SIMPLE REASON THAT THEY WERE THE VICTIMS OF A PLAIN UNFAIR
LABOR PRACTICE BY THEIR EMPLOYER.  QUITE APART FROM ANY
CHARACTERIZATION OF THE STRIKE THAT CONTINUED AFTER THE WRONGFUL
DISCHARGES OCCURRED, THE DISCHARGES THEMSELVES WERE A SUFFICIENT GROUND
FOR THE BOARD'S REINSTATEMENT ORDER.  "REINSTATEMENT IS THE
CONVENTIONAL CORRECTION FOR DISCRIMINATORY DISCHARGES," PHELPS DODGE
CORP. V. NLRB, 313 U.S. 177, 187, AND WAS CLEARLY WITHIN THE BOARD'S
AUTHORITY.  29 U.S.C. 160(C). 

IT WOULD UNDERCUT THE REMEDIAL POWERS OF THE BOARD WITH RESPECT TO
SEC. 8 VIOLATIONS, AND SUBVERT THE PROTECTION OF SEC. 7 OF THE ACT, TO
HOLD THAT THE EMPLOYEES' RIGHTS TO REINSTATEMENT ARISING FROM THE
DISCRIMINATORY DISCHARGES WERE SOMEHOW FORFEITED MERELY BECAUSE THEY
CONTINUED FOR A TIME TO ENGAGE IN THEIR LAWFUL STRIKE AFTER THE UNFAIR
LABOR PRACTICES HAD BEEN COMMITTED. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED INSOFAR AS IT
REFUSED TO ENFORCE THE BOARD'S ORDER THAT THE DISCHARGED EMPLOYEES BE
REINSTATED WITH BACK PAY.  /5/

      IT IS SO ORDERED. 

/1/  CASILLAS DID NOT RECEIVE SUCH A TELEGRAM, BUT THE COURT OF
APPEALS FOUND THAT HE WAS DISCHARGED AT ABOUT THE SAME TIME AS THE
OTHER THREE, AND FOR THE SAME REASONS.  448 F.2D 905, 909. 

/2/  THERE REMAINS SOME QUESTION AS TO WHETHER CASILLAS, A PART-TIME
EMPLOYEE, WAS ACTUALLY DENIED SUBSEQUENT EMPLOYMENT OR WHETHER INSTEAD
THERE HAD BEEN NO OCCASION FOR THE EMPLOYER TO USE HIS SERVICES.  THE
COURT OF APPEALS REMANDED TO THE BOARD FOR A DETERMINATION OF THIS
QUESTION-- A DETERMINATION THAT WILL AFFECT THE AMOUNT OF BACK PAY, IF
ANY, THAT CASILLAS IS ENTITLED TO RECEIVE. 

/3/  THE COURT OF APPEALS ALSO REJECTED THE BOARD'S FINDING OF AN
UNFAIR LABOR PRACTICE IN THE FORM OF CONVERSATIONS BETWEEN THE SON OF
THE RESPONDENT'S PRESIDENT AND THE EMPLOYEES, 448 F.2D, AT 908-909, BUT
THIS ASPECT OF THE JUDGMENT IS NOT BEFORE US. 

/4/  THE COURT OF APPEALS CONSTRUED THE PICKETING AS A STRIKE FOR THE
PURPOSE OF FORCING THE RESPONDENT EMPLOYER TO AGREE TO A CONSENT
ELECTION, 448 F.2D, AT 910, AND HELD THIS TO BE PROTECTED UNDER THE
ACT.  THE RESPONDENT DISAGREES.  BUT SINCE NO TIMELY CROSS-PETITION FOR
CERTIORARI WAS FILED BY THE RESPONDENTS, THIS QUESTION IS NOT BEFORE
US.  ALASKA INDUSTRIAL BOARD V. CHUGACH ELECTRIC ASSN., 356 U.S. 320,
325; NLRB V. EXPRESS PUBLISHING CO., 312 U.S. 426, 431-432; MORLEY
CONSTRUCTION CO. V. MARYLAND CASUALTY CO., 300 U.S. 185, 191.  WE
THEREFORE PROCEED ON THE PREMISE THAT THE UNION WAS ENGAGED IN
PROTECTED ACTIVITY, WHILE INTIMATING NO VIEW ON THE MERITS OF THIS
PORTION OF THE DECISION OF THE COURT OF APPEALS. 

/5/  THE COURT OF APPEALS REMANDED TO THE BOARD FOR A DETERMINATION
OF WHETHER CASILLAS HAD ACTUALLY BEEN DENIED EMPLOYMENT SUBSEQUENT TO
HIS REQUEST FOR REINSTATEMENT, AND DID NOT REACH THE PROPRIETY OF THE
BARGAINING ORDER ENTERED BY THE BOARD.  WE LEAVE THESE ASPECTS OF THE
COURT OF APPEALS DECISION UNDISTURBED. 

MR. JUSTIC BLACKMUN, CONCURRING IN THE JUDGMENT. 

THE RESULT MANDATED BY THE NARROW FACTUAL SITUATION PRESENTED IN
THIS CASE NEED NOT BE AUTOMATICALLY IMPOSED WHENEVER AN ECONOMIC
STRIKER IS DISCHARGED BEFORE BEING PERMANENTLY REPLACED.  ALTHOUGH THE
COURT'S OPINION SPEAKS ONLY OF PERMANENT REPLACEMENT AS A JUSTIFICATION
FOR REFUSAL TO REINSTATE AN ECONOMIC STRIKER, THE COURT HAS RECOGNIZED
IN THE PAST THAT, IN ADDITION TO PERMANENT REPLACEMENT, OTHER
"LEGITIMATE AND SUBSTANTIAL BUSINESS JUSTIFICATIONS" FOR NOT
REINSTATING AN ECONOMIC STRIKER MAY EXIST.  NLRB V. FLEETWOOD TRAILER
CO., 389 U.S. 375, 378-380 (1967).  THE COURT IS NOT FACED IN THE
PRESENT CASE WITH OTHER "LEGITIMATE AND SUBSTANTIAL BUSINESS
JUSTIFICATIONS" BECAUSE THE EMPLOYER, WHO BEARS THE BURDEN OF PROOF,
ASSERTED ONLY THE PERMANENT-REPLACEMENT JUSTIFICATION.  THE FINDING OF
AN UNFAIR LABOR PRACTICE HERE IS NOT TO BE READ, THEREFORE, AS
NECESSARILY PRECLUDING AN EMPLOYER FROM RELIANCE ON APPROPRIATE
JUSTIFICATIONS OTHER THAN PERMANENT REPLACEMENT. 

SINCE THE EMPLOYER FAILED TO SHOW ANY BUSINESS JUSTIFICATION ARISING
BEFORE THE DISCHARGES, THESE WORKERS ENJOYED REINSTATEMENT RIGHTS WHEN
THEY WERE DISCRIMINATORILY DISCHARGED.  I CONCUR IN THE REVERSAL OF THE
COURT OF APPEALS' JUDGMENT BECAUSE PRESERVATION OF THE RIGHTS EXISTING
BEFORE THE WORKERS WERE DISCHARGED IS THE APPROPRIATE REMEDY TO PROVIDE
"A RESTORATION OF THE SITUATION, AS NEARLY AS POSSIBLE, TO THAT WHICH
WOULD HAVE OBTAINED BUT FOR THE ILLEGAL DISCRIMINATION."  PHELPS DODGE
CORP. V. NLRB, 313 U.S. 177, 194 (1941). 

PETER G. NASH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD, SAMUEL HUNTINGTON, PATRICK
HARDIN, NORTON J. COME, AND LINDA SHER. 

NORMAN H. KIRSHMAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WAS LOUIS R. GARCIA. 

BRIEFS OF AMICI CURIAE WERE FILED BY J. ALBERT WOLL, LAURENCE GOLD,
AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS, AND BY MILTON SMITH, JERRY KRONENBERG, AND
GERARD C. SMETANA FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES. 
..END :








MURCH V. MOTTRAM, 409 U.S. 41 


       MURCH ET AL. V. MOTTRAM

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIRST CIRCUIT

        NO. 72-55.  DECIDED NOVEMBER 6, 1972 


IN A 1965 PROCEEDING RESPONDENT SUBSTITUTED FOR HIS ORIGINAL ATTACK
ON THE CONSTITUTIONAL VALIDITY OF HIS UNDERLYING CONVICTIONS A PETITION
CHALLENGING ONLY THE CONSTITUTIONALITY OF PROCEDURES ATTENDING
REVOCATION OF HIS PAROLE, NOTWITHSTANDING ADVICE THAT, UNDER THE
JUDGE'S CONSTRUCTION OF MAINE'S STATUTE GOVERNING POST-CONVICTION
RELIEF, A PRISONER IS DEEMED TO WAIVE CONSTITUTIONAL GROUNDS NOT
ASSERTED AND THAT BOTH THE PETITION AND THE PREVIOUS ATTACK CAME WITHIN
THE STATUTE.  RESPONDENT'S 1965 CHALLENGE WAS NOT SUCCESSFUL, AND IN
1967 HE FILED ANOTHER PETITION FOR STATE POST-CONVICTION RELIEF,
COLLATERALLY ATTACKING THE VALIDITY OF THE PREVIOUS CONVICTIONS. 
FOLLOWING AN ADVERSE RULING BY THE STATE'S HIGHEST COURT, RESPONDENT
SOUGHT RELIEF IN THE DISTRICT COURT, WHICH RULED AGAINST HIM ON THE
GROUND THAT IN THE 1965 PROCEEDING HE HAD BYPASSED THE STATE STATUTORY
PROCEDURES.  THE COURT OF APPEALS REVERSED, HOLDING THAT RESPONDENT HAD
NOT WAIVED HIS RIGHT TO RAISE THE CONSTITUTIONAL ISSUES.  HELD:  MAINE
COULD PROPERLY PROVIDE THAT A PRISONER SEEKING POST-CONVICTION RELIEF
MUST ASSERT ALL KNOWN CONSTITUTIONAL CLAIMS IN A SINGLE PROCEEDINGS,
AND A STATE PRISONER MAY NOT "ELECT" NOT TO COMPLY WITH A STATE COURT'S
INTERPRETATION OF THE STATUTE AND CLAIM, AS RESPONDENT (WHO HAD
RECEIVED FAIR WARNING) DID HERE, THAT HE DID NOT HAVE THE SUBJECTIVE
INTENT TO WAIVE HIS CONSTITUTIONAL CLAIMS. 

CERTIORARI GRANTED; 458 F.2D 626, REVERSED. 

PER CURIAM. 

RESPONDENT MOTTRAM SOUGHT HABEAS CORPUS FROM THE UNITED STATES
DISTRICT COURT IN MAINE, CHALLENGING ON VARIOUS CONSTITUTIONAL GROUNDS
THE VALIDITY OF A CRIMINAL CONVICTION OBTAINED IN THE MAINE STATE
COURTS.  AFTER A FULL EVIDENTIARY HEARING, THE DISTRICT COURT DENIED
RELIEF, BOTH ON THE GROUND THAT RESPONDENT HAD DELIBERATELY BYPASSED
STATE PROCEDURES ESTABLISHED FOR THE POST-CONVICTION ADJUDICATION OF
SUCH CLAIMS, AND ON THE GROUND THAT THE CONSTITUTIONAL CLAIMS WERE
WITHOUT MERIT.  330 F.SUPP.  51 (1971).  THE COURT OF APPEALS FOR THE
FIRST CIRCUIT REVERSED, HOLDING THAT RESPONDENT HAD NOT WAIVED HIS
RIGHT TO RAISE THE CONSTITUTIONAL ISSUES, AND RULING IN FAVOR OF
RESPONDENT ON ONE SUCH ISSUE.  458 F.2D 626 (1972).  WE HAVE CONCLUDED
THAT, UNDER SETTLED PRINCIPLES GOVERNING THE AVAILABILITY OF FEDERAL
HABEAS FOR STATE PRISONERS, THE FINDING OF THE DISTRICT COURT AS TO
WAIVER MUST BE SUSTAINED.  WE THEREFORE GRANT THE MOTION OF THE
RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS, GRANT THE PETITION
FOR A WRIT OF CERTIORARI, AND REVERSE THE JUDGMENT OF THE COURT OF
APPEALS. 

MOTTRAM WAS CONVICTED IN 1960 OF LARCENY AND OF BEING A HABITUAL
OFFENDER, AND THESE CONVICTIONS WERE UPHELD ON APPEAL.  STATE V.
MOTTRAM, 158 ME. 325, 184 A.2D 225 (1962).  ON THAT APPEAL, MOTTRAM DID
NOT LITIGATE THE CONSTITUTIONAL ISSUE UPON WHICH THE COURT OF APPEALS
BASED ITS DECISION.  RESPONDENT WAS PAROLED IN 1963, BUT PAROLE WAS
REVOKED IN 1965.  FOLLOWING THAT REVOCATION, MOTTRAM BROUGHT IN STATE
COURT THE ACTION THAT LATER BECAME THE MAIN FOCUS OF CONCERN OF THE
COURT OF APPEALS AND THE DISTRICT COURT.  THE ORIGINAL PETITION IN THAT
PROCEEDING CHALLENGED DIRECTLY THE VALIDITY OF THE UNDERLYING
CONVICTIONS.  PRIOR TO THE PRESENTATION OF EVIDENCE TO THE STATE COURT
JUDGE, HOWEVER, MOTTRAM'S COUNSEL SOUGHT TO WITHDRAW THE ORIGINAL
PETITION WITHOUT PREJUDICE AND TO SUBSTITUTE A "SUPPLEMENTAL PETITION,"
WHICH CHALLENGED ON CONSTITUTIONAL GROUNDS ONLY THE PROPRIETY OF THE
PROCEDURES ATTENDING THE REVOCATION OF RESPONDENT'S PAROLE.  AT THIS
POINT THE STATE JUDGE ADVISED RESPONDENT'S COUNSEL THAT HE CONSIDERED
BOTH THE PETITION AND THE PROCEEDING TO BE FOR POST-CONVICTION RELIEF,
AND THAT THEREFORE, UNDER THE APPLICABLE STATE STATUTES, ME. REV. STAT.
ANN., TIT. 14, SECS. 5502, 5507 (1964), MOTTRAM WOULD EITHER HAVE TO
RAISE ALL GROUNDS FOR RELIEF FROM CUSTODY OR BE DEEMED TO WAIVE THOSE
THAT HAD NOT BEEN ASSERTED.  MOTTRAM'S COUNSEL DISAGREED WITH THE STATE
JUDGE, CONTENDING THAT THE PETITION WAS ONE FOR COMMON-LAW HABEAS
CORPUS, AND THAT THEREFORE THE STATUTORY REQUIREMENT THAT ALL GROUNDS
FOR ATTACK BE PRESENTED DID NOT APPLY.  THE JUDGE REITERATED HIS
INTERPRETATION, AND THE FOLLOWING COLLOQUY THEN TOOK PLACE: 

"THE COURT:  I THINK I WILL HAVE TO ASK YOU TO DEAL WITH THIS

  AT THIS MOMENT IN MAKING A DECISION AS TO WHAT YOU WANT TO DO ON

  THE BASIS THAT I WILL UNDOUBTEDLY VIEW IT AS POST-CONVICTION AND

  YOUR ONLY REMEDY AT THAT POINT MIGHT BE AN APPEAL ON THIS POINT

  FROM MY DECISION.  I THINK IN ALL FAIRNESS, I SHOULD INDICATE TO

  YOU THIS IS AS I VIEW IT.  I THINK THAT IS THE RESULT WE ARE LED

  TO BY THE STATUTE, MYSELF. 

     "MR. TEVANIAN (MOTTRAM'S COUNSEL):  I UNDERSTAND YOUR POSITION
AND I SHALL DISCUSS IT." 

(CONFERENCE BETWEEN MR. TEVANIAN AND MR. MOTTRAM.)  (OFF-RECORD
DISCUSSION.) 

        (RECESS) 

     "MR. TEVANIAN:  FOR THE RECORD, IT IS OUR POSITION HERE THAT
WE

  DO NOT ATTACK THE JUDGMENT AND CONVICTION OF 1960.  WE ARE NOT

  ATTACKING HIS PERSONAL FREEDOM AS A PAROLE VIOLATOR SO THAT

  WHATEVER RIGHTS WE MAY RESERVE IN APPEAL AS TO WHETHER OR NOT

  THIS IS A POST-CONVICTION HEARING, WE WOULD NOW LIKE TO AVAIL

  OURSELVES OF THAT RESERVATION.  WE HAVE ELECTED TO GO AHEAD ON

  THAT ISSUE. 

     "THE COURT:  I THINK THAT MAKES IT CLEAR, BROTHER EVANIAN, FOR
THE RECORD . . . " 

MOTTRAM'S ATTACK ON THE PAROLE REVOCATION PROCEDURES WAS
UNSUCCESSFUL BEFORE THE STATE JUDGE, AND THE LATTER'S DECISION WAS
SUSTAINED ON APPEAL BY THE SUPREME JUDICIAL COURT OF MAINE.  MOTTRAM V.
STATE, 232 A.2D 809 (1967).  IN 1967, MOTTRAM FILED ANOTHER PETITION
FOR STATE POST-CONVICTION RELIEF, IN WHICH HE SOUGHT TO ATTACK
COLLATERALLY THE VALIDITY OF THE 1960 CONVICTIONS UPON GROUNDS THAT
INCLUDED THE CONSTITUTIONAL GROUND ULTIMATELY SUSTAINED BY THE COURT OF
APPEALS.  THE SUPREME JUDICIAL COURT OF MAINE HELD THAT THE FAILURE TO
PRESENT THOSE CLAIMS IN THE 1965 PETITION, AFTER AN EXPLICIT WARNING BY
THE TRIAL JUDGE, CONSTITUTED A WAIVER OF THOSE CLAIMS UNDER THE
APPLICABLE PROVISIONS OF THE MAINE POST-CONVICTION STATUTES, AND
THEREFORE THOSE STATUTES PRECLUDED MOTTRAM FROM RAISING THOSE CLAIMS IN
A SUBSEQUENT PETITION FOR POST-CONVICTION RELIEF.  MOTTRAM THEN
COMMENCED THIS LITIGATION IN THE FEDERAL COURTS. 

IN FAY V. NOIA, 372 U.S. 391, 439 (1963), THIS COURT SAID: 

"IF A HABEAS APPLICANT, AFTER CONSULTATION WITH COMPETENT COUNSEL OR
OTHERWISE, UNDERSTANDINGLY AND KNOWINGLY FOREWENT THE PRIVILEGE OF
SEEKING TO VINDICATE HIS FEDERAL CLAIMS IN THE STATE COURTS, WHETHER
FOR STRATEGIC, TACTICAL, OR ANY OTHER REASONS THAT CAN FAIRLY BE
DESCRIBED AS THE DELIBERATE BY-PASSING OF STATE PROCEDURES, THEN IT IS
OPEN TO THE FEDERAL COURT ON HABEAS TO DENY HIM ALL RELIEF IF THE STATE
COURTS REFUSED TO ENTERTAIN HIS FEDERAL CLAIMS ON THE MERITS-- THOUGH
OF COURSE ONLY AFTER THE FEDERAL COURT HAS SATISFIED ITSELF, BY HOLDING
A HEARING OR BY SOME OTHER MEANS, OF THE FACTS BEARING UPON THE
APPLICANT'S DEFAULT." 

THE DISTRICT COURT DEVOTED FOUR DAYS TO SUCH A HEARING, AT WHICH THE
TRANSCRIPTS OF THE TRIALS AND OF THE STATE POST-CONVICTION PROCEEDINGS,
AS WELL AS THE TESTIMONY OF WITNESSES CALLED BY MOTTRAM, WERE
INTRODUCED IN EVIDENCE.  FOLLOWING THIS EVIDENTIARY HEARING, THE
DISTRICT COURT CONCLUDED AS FOLLOWS: 

"FROM THE COURT'S PERSONAL OBSERVATION OF PETITIONER, IT IS APPARENT
THAT HE IS OF AT LEAST AVERAGE INTELLIGENCE AND WELL DESERVES HIS
REPUTATION AS A CUNNING 'JAILHOUSE LAWYER.'  HE WAS REPRESENTED AT THE
TIME BY COUNSEL OF UNQUESTIONED COMPETENCE AND INTEGRITY.  IT IS
INCONCEIVABLE THAT HIS COUNSEL DID NOT FULLY EXPLAIN TO PETITIONER THE
POSSIBLE CONSEQUENCES OF HIS ACTION.  THE COURT, THEREFORE, FINDS THAT
PETITIONER WAS FULLY AWARE OF THESE CONSEQUENCES AND THAT BY
DELIBERATELY BYPASSING THE ORDERLY PROCEDURES PROVIDED BY THE MAINE
POST-CONVICTION STATUTE FOR RAISING THE ISSUES PRESENTED IN HIS MOST
RECENT STATE HABEAS PETITION AND IN HIS PRESENT PETITION IN THIS COURT,
PETITIONER HAS FORFEITED HIS RIGHT TO DO SO.  (CITING CASES.)"  330
F.SUPP.,AT 57. 

IN SANDERS V. UNITED STATES, 373 U.S. 1, 18 (1963), THIS COURT SAID,
IN SPEAKING OF HABEAS CORPUS FOR FEDERAL PRISONERS: 

"THUS, FOR EXAMPLE, IF A PRISONER DELIBERATELY WITHHOLDS ONE OF TWO
GROUNDS FOR FEDERAL COLLATERAL RELIEF AT THE TIME OF FILING HIS FIRST
APPLICATION, IN THE HOPE OF BEING GRANTED TWO HEARINGS RATHER THAN ONE
OR FOR SOME OTHER SUCH REASON, HE MAY BE DEEMED TO HAVE WAIVED HIS
RIGHT TO A HEARING ON A SECOND APPLICATION PRESENTING THE WITHHELD
GROUND . . . NOTHING IN THE TRADITIONS OF HABEAS CORPUS REQUIRES
FEDERAL COURTS TO TOLERATE NEEDLESS PIECEMEAL LITIGATION, OR TO
ENTERTAIN COLLATERAL PROCEEDINGS WHOSE ONLY PURPOSE IS TO VEX, HARASS,
OR DELAY." 

THERE CAN BE NO DOUBT THAT STATES MAY LIKEWISE PROVIDE, AS MAINE HAS
DONE, THAT A PRISONER SEEKING POST-CONVICTION RELIEF MUST ASSERT ALL
KNOWN CONSTITUTIONAL CLAIMS IN A SINGLE PROCEEDING.  INDEED, THE COURT
OF APPEALS AGREED THAT THE MAINE STATUTORY SCHEME WAS AN "ORDERLY
PROCEDURE OF THE STATE COURTS," AS THAT TERM IS USED IN FAY V. NOIA,
SUPRA, AT 438.  NO PRISONER HAS A RIGHT EITHER UNDER THE FEDERAL
CONSTITUTION OR UNDER 28 U.S.C. 2241 TO INSIST UPON PIECEMEAL
COLLATERAL ATTACK ON A PRESUMPTIVELY VALID CRIMINAL CONVICTION IN THE
FACE OF SUCH A STATUTORY PROVISION. 

THE COURT OF APPEALS CONCEDED THAT "(THERE ARE A GREAT MANY
INSTANCES WHERE A PARTY MUST BE BOUND BY A MISTAKE OF HIS COUNSEL." 
458 F.2D, AT 629.  BUT IT CONCLUDED THAT BECAUSE THE STATUTORY QUESTION
PRESENTED TO THE STATE TRIAL JUDGE, WHETHER THE MAINE POST-CONVICTION
STATUTE REQUIRED RESPONDENT TO ASSERT IN THE 1965 PROCEEDING ALL OF HIS
ATTACKS UPON HIS DETENTION, WAS NOT OPEN AND SHUT, COUNSEL'S FAILURE TO
ASSERT THE CONSTITUTIONAL CLAIM IN THE STATE PROCEEDING COULD NOT BE
REGARDED AS A "DELIBERATE BY-PASS" UNDER FAY V. NOIA, SUPRA, AT 438
439.  THAT COURT ALSO RELIED ON THE FACT THAT THERE WAS NO "EXTRINSIC
EVIDENCE" THAT MOTTRAM "WAS SEEKING TO CIRCUMVENT STATE PROCEDURES . .
. " 458 F.2D, AT 629. 

CONCEDEDLY, MOTTRAM TESTIFIED AT THE HEARING IN THE DISTRICT COURT
THAT HE DID NOT INTEND TO WAIVE HIS CONSTITUTIONAL ATTACKS ON THE
UNDERLYING 1960 CONVICTIONS.  BUT IF A SUBJECTIVE DETERMINATION NOT TO
WAIVE OR TO ABANDON A CLAIM WERE SUFFICIENT TO PRECLUDE A FINDING OF A
DELIBERATE BYPASS OF ORDERLY STATE PROCEDURES, CONSTITUTIONALLY VALID
PROCEDURAL REQUIREMENTS, SUCH AS THOSE CONTAINED IN THE MAINE STATUTE
REQUIRING THE JOINING OF ALL BASES FOR ATTACK IN ONE PROCEEDING, WOULD
BE UTTERLY MEANINGLESS.  NOTHING IN OUR PREVIOUS HOLDINGS IN THIS AREA
SUPPORTS THE CONCLUSION THAT MOTTRAM, HAVING FAIR WARNING OF THE EFFECT
OF THE MAINE STATUTE, COULD CAVALIERLY DISREGARD THAT INTENDED EFFECT
BY SIMPLY ANNOUNCING THAT HE DID NOT CHOOSE TO BE BOUND BY IT.  IN THIS
SENSITIVE AND OFTTIMES STRAINED AREA OF FEDERAL-STATE RELATIONS, A
STATE PRISONER MAY NOT DELIBERATELY "ELECT" NOT TO COMPLY WITH THE
INTERPRETATION OF THE STATE PROCEDURAL STATUTE BY THE STATE COURT, AND
THEN ASSERT IN FEDERAL COURT THAT NO RIGHTS WERE WAIVED BECAUSE HE DID
NOT HAVE THE SUBJECTIVE INTENT TO WAIVE HIS CONSTITUTIONAL CLAIMS.  THE
COURT OF APPEALS APPARENTLY FELT THAT SO LONG AS THE HIGHEST STATE
COURT HAS NOT CONSTRUED THE RELEVANT PROCEDURAL STATUTE, A PRISONER IS
FREE TO ADHERE TO HIS OWN INTERPRETATION AND TO ESTABLISH THEREBY THAT
HE DID NOT DELIBERATELY IGNORE STATE PROCEDURE.  BUT HERE, RESPONDENT
HAD REASONABLE WARNING FROM THE TRIAL JUDGE OF THE RISK THAT HE RAN IN
DECLINING TO ASSERT HIS CLAIM IN THE FIRST PROCEEDING, AND NONETHELESS
CHOSE TO RUN THAT RISK.  SUCH CONDUCT FULLY SUPPORTED THE DISTRICT
COURT'S CONCLUSION THAT HE HAD DELIBERATELY CHOSEN TO BYPASS ORDERLY
STATE PROCEDURES, AND THE COURT OF APPEALS ERRED IN UPSETTING THAT
DETERMINATION. 

              REVERSED. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

I DISSENT AND WOULD AFFIRM BECAUSE IN MY VIEW THE COURT OF APPEALS
REACHED THE CORRECT RESULT ON THE FACTS PRESENTED. 
..END :














CALIFORNIA V. KRIVDA, 409 U.S. 33 


       CALIFORNIA V. KRIVDA ET AL.

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

        NO. 71-651.  ARGUED OCTOBER 10, 1972-- DECIDED OCTOBER 24,

1972. 


IT NOT BEING CLEAR WHETHER THE JUDGMENT OF THE CALIFORNIA SUPREME
COURT AFFIRMING THE LOWER COURT IS BASED ON FEDERAL OR STATE
CONSTITUTIONAL GROUNDS, OR BOTH, AND WHETHER THIS COURT HAS
JURISDICTION ON REVIEW, THAT JUDGMENT IS VACATED AND THE CASE
REMANDED. 

5 CAL.3D 357, 486 P.2D 1262, VACATED AND REMANDED. 

PER CURIAM. 

ON THE BASIS OF EVIDENCE OBTAINED IN A POLICE SEARCH OF RESPONDENTS'
TRASH, RESPONDENTS WERE CHARGED WITH POSSESSION OF MARIHUANA IN
VIOLATION OF SEC. 11530 OF THE CALIFORNIA HEALTH & SAFETY CODE.  THE
SUPREME COURT OF CALIFORNIA AFFIRMED THE SUPERIOR COURT'S JUDGMENT OF
DISMISSAL AND ORDER SUPPRESSING THE EVIDENCE ON THE GROUNDS THAT, UNDER
THE CIRCUMSTANCES OF THIS CASE, RESPONDENTS "HAD A REASONABLE
EXPECTATION THAT THEIR TRASH WOULD NOT BE RUMMAGED THROUGH AND PICKED
OVER BY POLICE OFFICERS ACTING WITHOUT A SEARCH WARRANT."  PEOPLE V.
KRIVDA, 5 CAL.3D 357, 366-367, 486 P.2D 1262, 1268 (1971) (EN BANC). 
WE GRANTED CERTIORARI.  405 U.S. 1039. 

AFTER BRIEFING AND ARGUMENT, HOWEVER, WE ARE UNABLE TO DETERMINE
WHETHER THE CALIFORNIA SUPREME COURT BASED ITS HOLDING UPON THE FOURTH
AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES, OR
UPON THE EQUIVALENT PROVISION OF THE CALIFORNIA CONSTITUTION, OR BOTH. 
IN REACHING ITS RESULT IN THIS CASE, THE CALIFORNIA COURT CITED
PERTINENT EXCERPTS FROM ITS EARLIER DECISION IN PEOPLE V. EDWARDS, 71
CAL.2D 1096 458 P.2D 713 (1969) (EN BANC), WHICH RELIED SPECIFICALLY
UPON BOTH THE STATE AND FEDERAL PROVISIONS.  5 CAL.3D, AT 367, 486
P.2D, AT 1269.  THUS, AS IN MENTAL HYGIENE DEPT. V. KIRCHNER, 380 U.S.
194, 196-197 (1965), "(WHILE WE MIGHT SPECULATE FROM THE CHOICE OF
WORDS USED IN THE OPINION, AND THE AUTHORITIES CITED BY THE COURT,
WHICH PROVISION WAS THE BASIS FOR THE JUDGMENT OF THE STATE COURT, WE
ARE UNABLE TO SAY WITH ANY DEGREE OF CERTAINTY THAT THE JUDGMENT OF THE
CALIFORNIA SUPREME COURT WAS NOT BASED ON AN ADEQUATE AND INDEPENDENT
NONFEDERAL GROUND."  WE THEREFORE VACATE THE JUDGMENT OF THE SUPREME
COURT OF CALIFORNIA AND REMAND THE CAUSE TO THAT COURT FOR SUCH FURTHER
PROCEEDINGS AS MAY BE APPROPRIATE.  MENTAL HYGIENE DEPT. V. KIRCHNER,
SUPRA; MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551 (1940); STATE TAX
COMM'N V. VAN COTT, 306 U.S. 511 (1939).  WE INTIMATE NO VIEW ON THE
MERITS OF THE FOURTH AND FOURTEENTH AMENDMENT ISSUE PRESENTED. 

RUSSELL IUNGERICH, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE EVELLE J. YOUNGER,
ATTORNEY GENERAL, EDWARD A. HINZ, JR., CHIEF ASSISTANT ATTORNEY
GENERAL, WILLIAM E. JAMES AND S. CLARK MOORE, ASSISTANT ATTORNEYS
GENERAL, AND WILLIAM R. POUNDERS, DEPUTY ATTORNEY GENERAL, JOINED BY
JOHN D. LABELLE FOR THE STATE OF CONNECTICUT AND BY THE FOLLOWING
ATTORNEYS GENERAL:  WILLIAM J. BAXLEY OF ALABAMA, GARY K. NELSON OF
ARIZONA, RAY THORNTON OF ARKANSAS, DUKE W. DUNBAR OF COLORADO, W. LAIRD
STABLER, JR., OF DELAWARE, ROBERT L. SHEVIN OF FLORIDA, ARTHUR K.
BOLTON OF GEORGIA, GEORGE PAI OF HAWAII, W. ANTHONY PARK OF IDAHO,
THEODORE L. SENDAK OF INDIANA, RICHARD C. TURNER OF IOWA, JACK P. F.
GREMILLION OF LOUISIANA, FRANCIS B. BURCH OF MARYLAND, A. F. SUMMER OF
MISSISSIPPI, ROBERT L. WOODAHL OF MONTANA, CLARENCE A. H. MEYER OF
NEBRASKA, ROBERT LIST OF NEVADA, WARREN B. RUDMAN OF NEW HAMPSHIRE,
GEORGE F. KUGLER, JR., OF NEW JERSEY, LOUIS J. LEFKOWITZ OF NEW YORK,
HELGI JOHANNESON OF NORTH DAKOTA, WILLIAM J. BROWN OF OHIO, J. SHANE
CREAMER OF PENNSYLVANIA, RICHARD J. ISRAEL OF RHODE ISLAND, DANIEL R.
MCLEOD OF SOUTH CAROLINA, GORDON MYLAND OF SOUTH DAKOTA, DAVID M. PACK
OF TENNESSEE, CRAWFORD C. MARTIN OF TEXAS, VERNON B. ROMNEY OF UTAH,
JAMES M. JEFFORDS OF VERMONT, ANDREW P. MILLER OF VIRGINIA, RONALD H.
TONKIN OF THE VIRGIN ISLANDS, SLADE GORTON OF WASHINGTON, ROBERT W.
WARREN OF WISCONSIN, AND CLARENCE A. BRIMMER OF WYOMING. 

ROGER S. HANSON, BY APPOINTMENT OF THE COURT, 406 U.S. 904, ARGUED
THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WAS GEORGE R.
MILMAN. 

BRIEFS OF AMICI CURIAE WERE FILED BY WILLIAM J. SCOTT, ATTORNEY
GENERAL, AND JAMES B. ZAGEL, ASSISTANT ATTORNEY GENERAL, FOR THE STATE
OF ILLINOIS; BY FRANK G. CARRINGTON, JR., ALLAN S. GANZ, GLEN MURPHY,
AND WAYNE W. SCHMIDT FOR AMERICANS FOR EFFECTIVE LAW ENFORCEMENT, INC.,
ET AL.; BY MELVIN L. WULF, SANFORD J. ROSEN, JOEL M. GORA, A. L. WIRIN,
FRED OKRAND, AND LAWRENCE R. SPERBER FOR THE AMERICAN CIVIL LIBERTIES
UNION ET AL.; BY SHELDON PORTMAN AND ROSE ELIZABETH BIRD FOR THE
CALIFORNIA PUBLIC DEFENDERS ASSN.; AND BY THEODORE A. GOTTFRIED AND
MARSHALL J. HARTMAN FOR THE NATIONAL LEGAL AID AND DEFENDER ASSN.
..END :







ILLINOIS V. MICHIGAN, 409 U.S. 36 


       ILLINOIS V. MICHIGAN

        ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

        NO. 57, ORIG.  DECIDED OCTOBER 24, 1972 


THE FAILURE OF THE STATE OF ILLINOIS TO PETITION FOR A WRIT OF
CERTIORARI WITH RESPECT TO AN ADVERSE MICHIGAN SUPREME COURT DECISION
IN A CASE TO WHICH ILLINOIS WAS A PARTY "VINDICATING) . . . GRIEVANCES
OF PARTICULAR INDIVIDUALS" PRECLUDES RECOURSE TO THIS COURT'S ORIGINAL
JURISDICTION AS AN ALTERNATIVE TO NORMAL APPELLATE REVIEW. 

MOTION DENIED.  SEE 386 MICH. 474, 192 N.W.2D 242. 

PER CURIAM. 

THE STATE OF ILLINOIS MOVED TO FILE ITS BILL OF COMPLAINT IN THIS
CASE ON THE THEORY THAT A "RECIPROCAL TREATY" BETWEEN THE STATES OF
ILLINOIS AND MICHIGAN WAS VIOLATED BY A DECISION OF THE SUPREME COURT
OF THE STATE OF MICHIGAN WHICH ALLOWED RECOVERY OF TWO INJURED WORKMEN
AGAINST AN ILLINOIS RE-INSURANCE COMPANY.  FEDEROFF V. EWING, 386 MICH.
474, 192 N.W.2D 242 (1971).  IT CLAIMS THAT SUCH AN AGREEMENT AROSE
WHEN THE TWO STATES ENACTED THE UNIFORM INSURERS LIQUIDATION ACT, WHICH
CONTAINS CERTAIN RECIPROCAL FEATURES, AND THAT THE AGREEMENT HAS THE
DIGNITY OF AN INTERSTATE COMPACT.  /1/ 

THE STATE OF ILLINOIS WAS A PARTY TO THE CASE DECIDED BY THE SUPREME
COURT OF MICHIGAN THROUGH THE PERSON OF THE DIRECTOR OF INSURANCE OF
THE STATE OF ILLINOIS, WHO WAS THE LIQUIDATOR OF THE WORKMEN'S
COMPENSATION INSURER, HIGHWAY INSURANCE CO. IT WAS THE IMPOSITION OF
LIABILITY UPON THAT COMPANY'S RE-INSURER WHICH ILLINOIS CLAIMS WAS
INAPPROPRIATE UNDER THE UNIFORM ACT.  REVIEW OF THE MICHIGAN DECISION
SHOULD HAVE BEEN SOUGHT IN THAT CASE BY MEANS OF A PETITION FOR WRIT OF
CERTIORARI. 

IT IS NOW TOO LATE FOR ANY SUCH PETITION FOR CERTIORARI TO BE
FILED.  BUT ORIGINAL JURISDICTION OF THE COURT IS NOT AN ALTERNATIVE TO
THE REDRESS OF GRIEVANCES WHICH COULD HAVE BEEN SOUGHT IN THE NORMAL
APPELLATE PROCESS, IF THE REMEDY HAD BEEN TIMELY SOUGHT. 

THE PROBLEM PRESENTED IS ESSENTIALLY ONE BETWEEN PRIVATE LITIGANTS
AND, THOUGH THE POINT NOW RAISED MAY NOT HAVE BEEN PRESENTED IN THE
MICHIGAN LITIGATION, THESE CONTROVERSIES ARE RECURRING AND ESSENTIALLY
NOT STATE CONCERNS. 

WHILE THE COMPLAINT ON ITS FACE IS WITHIN OUR ORIGINAL, AS WELL AS
OUR EXCLUSIVE, JURISDICTION, IT SEEMS APPARENT FROM THE MOVING PAPERS
AND THE RESPONSE THAT ILLINOIS, THOUGH NOMINALLY A PARTY, IS HERE "IN
THE VINDICATION OF THE GRIEVANCES OF PARTICULAR INDIVIDUALS." 
LOUISIANA V. TEXAS, 176 U.S. 1, 16. 

THE MOTIONS TO FILE BRIEFS AMICI CURIAE BY JACK FEDEROFF, WILLIAM F.
EWING, DBA WILLIAM EWING ROOFING CO., AND JOHN H. SHANNON ARE GRANTED. 

THE MOTION OF THE STATE OF ILLINOIS FOR LEAVE TO FILE A BILL OF
COMPLAINT IS DENIED. 

/1/  SEE GENERALLY FRANKFURTER & LANDIS, THE COMPACT CLAUSE OF THE
CONSTITUTION-- A STUDY IN INTERSTATE ADJUSTMENTS, 34 YALE L.J. 685
(1925); ENGDAHL, CHARACTERIZATION OF INTERSTATE ARRANGEMENTS:  WHEN IS
A COMPACT NOT A COMPACT?, 64 MICH.L.REV.  63 (1965); NOTE, AT THE
INTERSECTION OF JURISDICTION AND CHOICE OF LAW, 59 CALIF.L.REV.  1514
(1971). 
..END :








ROBINSON V. HANRAHAN, 409 U.S. 38 


       ROBINSON V. HANRAHAN, STATES ATTORNEY OF COOK COUNTY

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

    NO. 71-6918.  DECIDED OCTOBER 24, 1972 


NOTWITHSTANDING ITS KNOWLEDGE THAT APPELLANT WAS IN THE COOK COUNTY
JAIL AWAITING TRIAL, THE STATE OF ILLINOIS MAILED NOTICE OF AUTOMOBILE
FORFEITURE PROCEEDINGS TO APPELLANT AT HIS HOME, WHICH HE DID NOT
RECEIVE UNTIL HIS RELEASE, WHEN HE LEARNED THAT THE CAR HAD BEEN
FORFEITED.  THE CIRCUIT COURT REJECTED APPELLANT'S MOTION FOR
REHEARING.  THE ILLINOIS SUPREME COURT AFFIRMED.  HELD:  THE PROCEDURE
FOLLOWED HERE DID NOT COMPORT WITH DUE PROCESS REQUIREMENTS AS THE
STATE MADE NO EFFORT TO PROVIDE APPELLANT WITH NOTICE "REASONABLY
CALCULATED" TO APPRISE HIM OF THE PENDENCY OF THE FORFEITURE
PROCEEDINGS. 

52 ILL.2D 37, 284 N.E.2D 646, REVERSED AND REMANDED. 

PER CURIAM. 

ON JUNE 16, 1970, APPELLANT WAS ARRESTED ON A CHARGE OF ARMED
ROBBERY AND, IMMEDIATELY THEREAFTER, THE STATE OF ILLINOIS INSTITUTED
FORFEITURE PROCEEDINGS AGAINST APPELLANT'S AUTOMOBILE PURSUANT TO THE
ILLINOIS VEHICLE FORFEITURE STATUTE, ILL. REV. STAT., C. 38, SEC. 36-1
ET SEQ. (1969).  APPELLANT WAS HELD IN CUSTODY IN THE COOK COUNTY JAIL
FROM JUNE 16, 1970, TO OCTOBER 7, 1970, AWAITING TRIAL.  NEVERTHELESS,
THE STATE MAILED NOTICE OF THE PENDING FORFEITURE PROCEEDINGS, NOT TO
THE JAIL FACILITY, BUT TO APPELLANT'S HOME ADDRESS AS LISTED IN THE
RECORDS OF THE SECRETARY OF STATE.  /1/  IT IS UNDISPUTED THAT
APPELLANT, WHO REMAINED IN CUSTODY THROUGHOUT THE FORFEITURE
PROCEEDINGS, DID NOT RECEIVE SUCH NOTICE UNTIL HIS RELEASE.  /2/  AFTER
AN EX PARTE HEARING ON AUGUST 19, 1970, THE CIRCUIT COURT OF COOK
COUNTY ORDERED THE FORFEITURE AND SALE OF APPELLANT'S VEHICLE. 

UPON LEARNING OF THE FORFEITURE AFTER HIS RELEASE, APPELLANT FILED A
MOTION FOR REHEARING, REQUESTING THAT THE ORDER OF FORFEITURE BE SET
ASIDE BECAUSE THE MANNER OF NOTICE DID NOT COMPORT WITH THE
REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
THE CIRCUIT COURT OF COOK COUNTY DENIED THE MOTION.  ON APPEAL, THE
SUPREME COURT OF ILLINOIS, THREE JUSTICES DISSENTING, HELD THAT, IN
LIGHT OF THE IN REM NATURE OF THE PROCEEDINGS, SUBSTITUTED SERVICE AS
UTILIZED BY THE STATE DID NOT DENY APPELLANT DUE PROCESS OF LAW. 
PEOPLE EX REL. HANNRAHAN V. ONE 1965 OLDSMOBILE, 52 ILL.2D 37, 284
N.E.2D 646 (1972).  WE CANNOT AGREE. 

IN MULLANE V. CENTRAL HANOVER BANK & TRUST CO., 339 U.S. 306 (1950),
AFTER COMMENTING ON THE VAGUENESS OF THE CLASSIFICATIONS "IN REM, OR
MORE INDEFINITELY QUASI IN REM, OR MORE VAGUELY STILL, 'IN THE NATURE
OF A PROCEEDING IN REM,'" THIS COURT HELD THAT "THE REQUIREMENTS OF THE
FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION DO NOT DEPEND UPON A
CLASSIFICATION FOR WHICH THE STANDARDS ARE SO ELUSIVE AND CONFUSED
GENERALLY AND WHICH, BEING PRIMARILY FOR STATE COURTS TO DEFINE, MAY
AND DO VARY FROM STATE TO STATE."  ID., AT 312.  "AN ELEMENTARY AND
FUNDAMENTAL REQUIREMENT OF DUE PROCESS IN ANY PROCEEDING WHICH IS TO BE
ACCORDED FINALITY IS NOTICE REASONABLY CALCULATED, UNDER ALL THE
CIRCUMSTANCES, TO APPRISE INTERESTED PARTIES OF THE PENDENCY OF THE
ACTION AND AFFORD THEM AN OPPORTUNITY TO PRESENT THEIR OBJECTIONS." 
ID., AT 314.  MORE SPECIFICALLY, MULLANE HELD THAT NOTICE BY
PUBLICATION IS NOT SUFFICIENT WITH RESPECT TO AN INDIVIDUAL WHOSE NAME
AND ADDRESS ARE KNOWN OR EASILY ASCERTAINABLE.  SIMILARLY, IN COVEY V.
TOWN OF SOMERS, 351 U.S. 141 (1956), WE HELD THAT, IN THE CONTEXT OF A
FORECLOSURE ACTION BY THE TOWN, NOTICE BY MAILING, POSTING, AND
PUBLICATION WAS INADEQUATE WHERE THE INDIVIDUAL INVOLVED WAS KNOWN BY
THE TOWN TO BE AN INCOMPETENT WITHOUT THE PROTECTION OF A GUARDIAN. 
SEE ALSO SCHROEDER V. NEW YORK, 371 U.S. 208 (1962); WALKER V. CITY OF
HUTCHINSON, 352 U.S. 112 (1956); NEW YORK V. NEW YORK, N.H.&H.R. CO.,
344 U.S. 293 (1953). 

IN THE INSTANT CASE, THE STATE KNEW THAT APPELLANT WAS NOT AT THE
ADDRESS TO WHICH THE NOTICE WAS MAILED AND, MOREOVER, KNEW ALSO THAT
APPELLANT COULD NOT GET TO THAT ADDRESS SINCE HE WAS AT THAT VERY TIME
CONFINED IN THE COOK COUNTY JAIL.  UNDER THESE CIRCUMSTANCES, IT CANNOT
BE SAID THAT THE STATE MADE ANY EFFORT TO PROVIDE NOTICE WHICH WAS
"REASONABLY CALCULATED" TO APPRISE APPELLANT OF THE PENDENCY OF THE
FORFEITURE PROCEEDINGS.  /3/  ACCORDINGLY, WE GRANT THE MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS, REVERSE THE JUDGMENT OF THE SUPREME
COURT OF ILLINOIS, AND REMAND FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

/1/  UNDER ILLINOIS LAW, THE ADDRESS OF A VEHICLE OWNER MUST BE
REGISTERED IN THE OFFICE OF THE SECRETARY OF STATE.  ILL. REV. STAT.,
C. 95 1/2, SEC. 3-405 (1971).  THE ILLINOIS VEHICLE FORFEITURE STATUTE
AUTHORIZES SERVICE OF NOTICE BY CERTIFIED MAIL TO THE ADDRESS AS LISTED
IN THE RECORDS OF THE SECRETARY OF STATE.  ILL. REV. STAT., C. 38, SEC.
36-1 (1969). 

/2/  APPELLANT WAS TRIED ON OCTOBER 7, 1970, FOR THE OFFENSE OF
ARMED ROBBERY.  THE COURT, SITTING WITHOUT A JURY, FOUND APPELLANT
GUILTY ONLY OF PLAIN ROBBERY AND SENTENCED HIM TO PROBATION FOR THREE
YEARS, THE FIRST FOUR MONTHS OF WHICH TO BE SERVED IN THE COOK COUNTY
JAIL.  IN LIGHT OF APPELLANT'S PRETRIAL DETENTION, THE FOUR-MONTH
REQUIREMENT WAS "CONSIDERED SERVED" AND APPELLANT WAS RELEASED
IMMEDIATELY ON HIS OWN RECOGNIZANCE. 

/3/  SINCE WE DISPOSE OF THIS CASE ON THE NOTICE QUESTION, WE DO NOT
REACH THE ADDITIONAL ISSUES RAISED BY APPELLANT. 
..END :


















O'BRIEN V. BROWN, 409 U.S. 1 


       O'BRIEN ET AL. V. BROWN ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

      AND ON APPLICATION FOR STAY

        NOS. 72-34 AND A-23.  DECIDED JULY 7, 1972  /0/ 


ON JULY 3, 1972, DELEGATES FROM CALIFORNIA AND ILLINOIS BROUGHT SUITS
IN DISTRICT COURT CONTESTING THEIR UNSEATING, RECOMMENDED BY THE
DEMOCRATIC PARTY'S CREDENTIALS COMMITTEE, IN THE 1972 DEMOCRATIC
NATIONAL CONVENTION, SCHEDULED TO CONVENE JULY 10.  THE DISTRICT COURT
DISMISSED BOTH ACTIONS.  ON JULY 5, THE COURT OF APPEALS REVERSED BOTH
DECISIONS, GRANTING RELIEF TO THE CALIFORNIA DELEGATES, AND DENYING
RELIEF TO THE ILLINOIS DELEGATES.  HELD:  IN VIEW OF THE PROBABILITY
THAT THE COURT OF APPEALS ERRED IN DECIDING THE CASES ON THE MERITS AND
IN VIEW OF THE TRADITIONAL RIGHT OF A POLITICAL CONVENTION TO REVIEW
AND ACT UPON THE RECOMMENDATIONS OF A CREDENTIALS COMMITTEE, THE
JUDGMENTS OF THE COURT OF APPEALS MUST BE STAYED.  THE IMPORTANT
CONSTITUTIONAL ISSUES CANNOT BE RESOLVED WITHIN THE LIMITED TIME
AVAILABLE, AND NO ACTION IS NOW TAKEN ON THE PETITIONS FOR CERTIORARI. 

SEE:  152 U.S.APP.D.C. 157, 469 F.2D 563. 

PER CURIAM. 

YESTERDAY, JULY 6, 1972, THE PETITIONERS FILED PETITIONS FOR WRITS
OF CERTIORARI TO REVIEW JUDGMENTS OF THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT IN ACTIONS CHALLENGING THE
RECOMMENDATIONS OF THE CREDENTIALS COMMITTEE OF THE 1972 DEOMCRATIC
NATIONAL CONVENTION REGARDING THE SEATING OF CERTAIN DELEGATES TO THE
CONVENTION THAT WILL MEET THREE DAYS HENCE. 

IN NO. 72-35, THE CREDENTIALS COMMITTEE RECOMMENDED UNSEATING 59
UNCOMMITTED DELEGATES FROM ILLINOIS ON THE GROUND, AMONG OTHERS, THAT
THEY HAD BEEN ELECTED IN VIOLATION OF THE "SLATE-MAKING" GUIDELINE
ADOPTED BY THE DEMOCRATIC PARTY IN 1971.  A COMPLAINT CHALLENGING THE
CREDENTIALS COMMITTEE ACTION WAS DISMISSED BY THE DISTRICT COURT.  THE
COURT OF APPEALS ON REVIEW REJECTED THE CONTENTIONS OF THE UNSEATED
DELEGATES THAT THE ACTION OF THE COMMITTEE VIOLATED THEIR RIGHTS UNDER
THE CONSTITUTION OF THE UNITED STATES. 

IN NO. 72-34, THE CREDENTIALS COMMITTEE RECOMMENDED UNSEATING 151 OF
271 DELEGATES FROM CALIFORNIA COMMITTED BY CALIFORNIA LAW TO SENATOR
GEORGE MCGOVERN UNDER THAT STATE'S "WINNER-TAKE-ALL" PRIMARY SYSTEM. 
THE COMMITTEE CONCLUDED THAT THE WINNER-TAKE-ALL SYSTEM VIOLATED THE
MANDATE OF THE 1968 DEMOCRATIC NATIONAL CONVENTION CALLING FOR REFORM
IN THE PARTY DELEGATE SELECTION PROCESS, EVEN THOUGH SUCH PRIMARIES HAD
NOT BEEN EXPLICITLY PROHIBITED BY THE RULES ADOPTED BY THE PARTY IN
1971 TO IMPLEMENT THAT MANDATE.  A COMPLAINT CHALLENGING THE
CREDENTIALS COMMITTEE ACTION WAS DISMISSED BY THE DISTRICT COURT.  ON
REVIEW THE COURT OF APPEALS CONCLUDED THAT THE ACTION OF THE
CREDENTIALS COMMITTEE IN THIS CASE VIOLATED THE CONSTITUTION OF THE
UNITED STATES. 

ACCOMPANYING THE PETITIONS FOR CERTIORARI WERE APPLICATIONS TO STAY
THE JUDGMENTS OF THE COURT OF APPEALS PENDING DISPOSITION OF THE
PETITIONS. 

THE PETITIONS FOR CERTIORARI PRESENT NOVEL QUESTIONS OF IMPORTANCE
TO THE LITIGANTS AND TO THE POLITICAL SYSTEM UNDER WHICH NATIONAL
POLITICAL PARTIES NOMINATED CANDIDATES FOR OFFICE AND VOTE ON THEIR
POLICIES AND PROGRAMS.  THE PARTICULAR ACTIONS OF THE CREDENTIALS
COMMITTEE ON WHICH THE COURT OF APPEALS RULED ARE RECOMMENDATIONS THAT
HAVE YET TO BE SUBMITTED TO THE NATIONAL CONVENTION OF THE DEMOCRATIC
PARTY.  ABSENT JUDICIAL INTERVENTION, THE CONVENTION COULD DECIDE TO
ACCEPT OR REJECT, OR ACCEPT WITH MODIFICATION, THE PROPOSALS OF ITS
CREDENTIALS COMMITTEE. 

THIS COURT IS NOW ASKED TO REVIEW THESE NOVEL AND IMPORTANT
QUESTIONS AND TO RESOLVE THEM WITHIN THE REMAINING DAYS PRIOR TO THE
OPENING SESSIONS OF THE CONVENTION NOW SCHEDULED TO BE CONVENED MONDAY,
JULY 10, 1972. 

THE COURT CONCLUDES IT CANNOT IN THIS LIMITED TIME GIVE TO THESE
ISSUES THE CONSIDERATION WARRANTED FOR FINAL DECISIONS ON THE MERITS;
WE THEREFORE TAKE NO ACTION ON THE PETITIONS FOR CERTIORARI AT THIS
TIME. 

THE APPLICATIONS TO STAY THE JUDGMENTS OF THE COURT OF APPEALS CALL
FOR A WEIGHING OF THREE BASIC FACTORS:  (A) WHETHER IRREPARABLE INJURY
MAY OCCUR ABSENT A STAY; (B) THE PROBABILITY THAT THE COURT OF APPEALS
WAS IN ERROR IN HOLDING THAT THE MERITS OF THESE CONTROVERSIES WERE
APPROPRIATE FOR DECISION BY FEDERAL COURTS; AND (C) THE PUBLIC
INTERESTS THAT MAY BE AFFECTED BY THE OPERATION OF THE JUDGMENTS OF THE
COURT OF APPEALS. 

ABSENT A STAY, THE MANDATE OF THE COURT OF APPEALS DENIES TO THE
DEMOCRATIC NATIONAL CONVENTION ITS TRADITIONAL POWER TO PASS ON THE
CREDENTIALS OF THE CALIFORNIA DELEGATES IN QUESTION.  THE GRANT OF A
STAY, ON THE OTHER HAND, WILL NOT FORECLOSE THE CONVENTION'S GIVING THE
RESPECTIVE LITIGANTS IN BOTH CASES THE RELIEF THEY SOUGHT IN FEDERAL
COURTS. 

WE MUST ALSO CONSIDER THE ABSENCE OF AUTHORITY SUPPORTING THE ACTION
OF THE COURT OF APPEALS IN INTERVENING IN THE INTERNAL DETERMINATIONS
OF A NATIONAL POLITICAL PARTY, ON THE EVE OF ITS CONVENTION, REGARDING
THE SEATING OF DELEGATES.  /1/  NO CASE IS CITED TO US IN WHICH ANY
FEDERAL COURT HAS UNDERTAKEN TO INTERJECT ITSELF INTO THE DELIBERATIVE
PROCESSES OF A NATIONAL POLITICAL CONVENTION; NO HOLDING OF THIS COURT
UP TO NOW GIVES SUPPORT FOR JUDICIAL INTERVENTION IN THE CIRCUMSTANCES
PRESENTED HERE, INVOLVING AS THEY DO RELATIONSHIPS OF GREAT DELICACY
THAT ARE ESSENTIALLY POLITICAL IN NATURE.  CF. LUTHER V. BORDEN, 7
HOW.  1(1849).  JUDICIAL INTERVENTION IN THIS AREA TRADITIONALLY HAS
BEEN APPROACHED WITH GREAT CAUTION AND RESTRAINT.  SEE IRISH V.
DEMOCRATIC-FARMER-LABOR PARTY OF MINNESTOA, 399 F.2D 119 (CA8 1968),
AFFIRMING 287 F.SUPP.  794 (MINN. 1968), AND CASES CITED; LYNCH V.
TORQUATO, 343 F.2D 370 (CA3 1965); SMITH V. STATE EXEC. COMM. OF DEM. 
PARTY OF GA., 288 F.SUPP.  371 (ND GA. 1968).  CF. RAY V. BLAIR, 343
U.S. 214 (1952).  IT HAS BEEN UNDERSTOOD SINCE OUR NATIONAL POLITICAL
PARTIES FIRST CAME INTO BEING AS VOLUNTARY ASSOCIATIONS OF INDIVIDUALS
THAT THE CONVENTION ITSELF IS THE PROPER FORUM FOR DETERMINING INTRA
PARTY DISPUTES AS TO WHICH DELEGATES SHALL BE SEATED.  THUS, THESE
CASES INVOLVE CLAIMS OF THE POWER OF THE FEDERAL JUDICIARY TO REVIEW
ACTIONS HERETOFORE THOUGHT TO LIE IN THE CONTROL OF POLITICAL PARTIES. 
HIGHLY IMPORTANT QUESTIONS ARE PRESENTED CONCERNING JUSTICIABILITY,
WHETHER THE ACTION OF THE CREDENTIALS COMMITTEE IS STATE ACTION AND, IF
SO, THE REACH OF THE DUE PROCESS CLAUSE IN THIS UNIQUE CONTEXT.  VITAL
RIGHTS OF ASSOCIATION GUARANTEED BY THE CONSTITUTION ARE ALSO
INVOLVED.  WHILE THE COURT IS UNWILLING TO UNDERTAKE FINAL RESOLUTION
OF THE IMPORTANT CONSTITUTIONAL QUESTIONS PRESENTED WITHOUT FULL
BRIEFING AND ARGUMENT AND ADEQUATE OPPORTUNITY FOR DELIBERATION, WE
ENTERTAIN GRAVE DOUBTS AS TO THE ACTION TAKEN BY THE COURT OF APPEALS. 

IN LIGHT OF THE AVAILABILITY OF THE CONVENTION AS A FORUM TO REVIEW
THE RECOMMENDATIONS OF THE CREDENTIALS COMMITTEE, IN WHICH PROCESS THE
COMPLAINING PARTIES MIGHT OBTAIN THE RELIEF THEY HAVE SOUGHT FROM THE
FEDERAL COURTS, THE LACK OF PRECEDENT TO SUPPORT THE EXTRAORDINARY
RELIEF GRANTED BY THE COURT OF APPEALS, AND THE LARGE PUBLIC INTEREST
IN ALLOWING THE POLITICAL PROCESSES TO FUNCTION FREE FROM JUDICIAL
SUPERVISION, WE CONCLUDE THE JUDGMENTS OF THE COURT OF APPEALS MUST BE
STAYED. 

WE RECOGNIZE THAT A STAY OF THE COURT OF APPEALS' JUDGMENTS MAY WELL
PRECLUDE ANY JUDICIAL REVIEW OF THE FINAL ACTION OF THE DEMOCRATIC
NATIONAL CONVENTION ON THE RECOMMENDATION OF ITS CREDENTIALS
COMMITTEE.  BUT, FOR NEARLY A CENTURY AND A HALF THE NATIONAL POLITICAL
PARTIES THEMSELVES HAVE DETERMINED CONTROVERSIES REGARDING THE SEATING
OF DELEGATES TO THEIR CONVENTIONS.  IF THIS SYSTEM IS TO BE ALTERED BY
FEDERAL COURTS IN THE EXERCISE OF THEIR EXTRAORDINARY EQUITY POWERS, IT
SHOULD NOT BE DONE UNDER THE CIRCUMSTANCES AND TIME PRESSURES
SURROUNDING THE ACTIONS BROUGHT IN THE DISTRICT COURT, AND THE
EXPEDITED REVIEW OF THE COURT OF APPEALS AND IN THIS COURT.  /2/ 

THE APPLICATIONS FOR STAYS OF THE JUDGMENTS OF THE COURT OF APPEALS
ARE GRANTED. 

MR. JUSTICE BRENNAN IS OF THE VIEW THAT IN THE LIMITED TIME
AVAILABLE THE COURT CANNOT GIVE THESE DIFFICULT AND IMPORTANT QUESTIONS
CONSIDERATION ADEQUATE FOR THEIR PROPER RESOLUTION.  HE THEREFORE
CONCURS IN THE GRANT OF THE STAYS PENDING ACTION BY THE COURT ON THE
PETITIONS FOR CERTIORARI. 

MR. JUSTICE WHITE WOULD DENY THE APPLICATIONS FOR STAYS. 

/0/  TOGETHER WITH NOS. 72-35 AND A-24, KEANE ET AL. V. NATIONAL
DEMOCRATIC PARTY ET AL., ON PETITION FOR WRIT OF CERTIORARI AND ON
APPLICATION FOR STAY TO THE SAME COURT. 

/1/  THIS IS NOT A CASE IN WHICH CLAIMS ARE MADE THAT INJURY ARISES
FROM INVIDIOUS DISCRIMINATION BASED ON RACE IN A PRIMARY CONTEST WITHIN
A SINGLE STATE.  CF. TERRY V. ADAMS, 345 U.S. 461 (1953); SMITH V.
ALLWRIGHT, 321 U.S. 649 (1944). 

/2/  ARGUMENT WAS HAD AND THE CASE DECIDED IN THE DISTRICT COURT ON
JULY 3; THE COURT OF APPEALS ENTERED ITS JUDGMENT JULY 5.  PAPERS WERE
FILED HERE JULY 6. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD DENY THE STAYS AND DENY THE PETITIONS FOR CERTIORARI.  THE
GRANT OF THE STAYS IS, WITH ALL RESPECT, AN ABUSE OF THE POWER TO GRANT
ONE.  THE PETITIONS FOR CERTIORARI WILL NOT BE VOTED ON UNTIL OCTOBER,
AT WHICH TIME EVERYONE KNOWS THE CASES WILL BE MOOT.  SO THE ACTION
GRANTING THE STAYS IS AN OBLIQUE AND COVERT WAY OF DECIDING THE
MERITS.  IF THE MERITS ARE TO BE DECIDED, THE CASES SHOULD BE PUT DOWN
FOR ARGUMENT.  AS MR. JUSTICE MARSHALL HAS SHOWN, THE QUESTIONS ARE BY
NO MEANS FRIVOLOUS.  THE LATENESS OF THE HOUR BEFORE THE CONVENTION AND
THE APPARENTLY APPROPRIATE ACTION BY THE COURT OF APPEALS ON THE ISSUES
COMBINE TO MAKE A DENIAL OF THE STAYS AND A DENIAL OF THE PETITIONS THE
ONLY RESPONSIBLE ACTION WE SHOULD TAKE WITHOUT ORAL ARGUMENT. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THESE TWO SEPARATE ACTIONS CHALLENGE THE EXCLUSION FROM THE
DEMOCRATIC NATIONAL CONVENTION BY THE PARTY'S CREDENTIALS COMMITTEE OF
151 DELEGATES FROM THE STATE OF CALIFORNIA AND 59 DELEGATES FROM THE
STATE OF ILLINOIS, ALL OF WHOM WERE SELECTED AS DELEGATES AS A RESULT
OF PRIMARY ELECTIONS IN THEIR RESPECTIVE STATES.  THE EXCLUDED
DELEGATES ALLEGE, IN ESSENCE, THAT THE REFUSAL OF THE PARTY TO ACCEPT
THEM AS DELEGATES DENIED THEM DUE PROCESS, AND DENIES THE VOTERS WHO
ELECTED THEM THEIR RIGHT TO FULL PARTICIPATION IN THE ELECTORAL PROCESS
AS GUARANTEED BY THE UNITED STATES CONSTITUTION.  /1/ 

TWO ASSERTIONS ARE CENTRAL TO THE CHALLENGE MADE BY THE DELEGATES
FROM CALIFORNIA.  FIRST, THEY CONTEND THAT UNDER CALIFORNIA'S WINNER
TAKE-ALL PRIMARY ELECTION LAW, WHICH THE DEMOCRATIC PARTY EXPLICITLY
APPROVED PRIOR TO THE 1972 PRIMARY ELECTION, /2/  AND WHICH THE
CALIFORNIA VOTERS RELIED ON IN CASTING THEIR BALLOTS, THEY ARE VALIDLY
ELECTED DELEGATES COMMITTED TO THE PRESIDENTIAL CANDIDACY OF SENATOR
GEORGE MCGOVERN.  SECOND, THEY CLAIM THAT AFTER ALL OF THE PRESIDENTIAL
CANDIDATES WHO WERE ON THE BALLOT IN CALIFORNIA HAD PLANNED AND CARRIED
OUT THEIR CAMPAIGNS RELYING ON THE VALIDITY OF THE STATE'S ELECTION
LAWS, AND AFTER ALL VOTES HAD BEEN CAST IN THE EXPECTATION THAT THE
WINNER OF THE PRIMARY WOULD COMMAND THE ENTIRE CALIFORNIA DELEGATION,
THE CREDENTIALS COMMITTEE CHANGED THE PARTY'S RULES AND RENEGED ON THE
PARTY'S EARLIER APPROVAL OF THE CALIFORNIA ELECTORAL SYSTEM.  THE
DELEGATES CONTEND THAT, IN SO DOING, THE COMMITTEE AND THE PARTY
IMPAIRED THE RIGHTS OF BOTH VOTERS AND DULY ELECTED DELEGATES IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  /3/ 

THE ILLINOIS DELEGATES CONTEND THAT THEY WERE EXCLUDED ON THE GROUND
THAT THEY WERE "SELECTED OUTSIDE THE ARENA OF PUBLIC PARTICIPATION BY,
AND GIVEN THE MASSIVE SUPPORT AND ENDORSEMENT OF, THE DEMOCRATIC
ORGANIZATION IN CHICAGO AND SPECIFICALLY AND CLEARLY IDENTIFIABLE AS
THE PARTY APPARATUS IN (CERTAIN DISTRICTS), TO THE EXCLUSION OF OTHER
CANDIDATES NOT FAVORED BY THE ORGANIZATION, AND THIS WITHOUT WRITTEN
AND PUBLICIZED RULES AND WITH NO NOTICE TO THE PUBLIC SUCH AS WOULD
PERMIT INTEREST DEMOCRATIC ELECTORS TO PARTICIPATE."  /4/  THEY ARGUE
THAT THE RESTRICTIONS PLACED BY THE RULES ON PARTY OFFICIALS VIOLATE
THEIR RIGHTS UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  IT IS ALSO
SUGGESTED THAT ANOTHER REASON WHY THE DELEGATES WERE EXCLUDED WAS THAT
THEIR DELEGATION HAD AN INSUFFICIENT NUMBER OF NEGROES, WOMEN, AND
REPRESENTATIVES OF CERTAIN OTHER IDENTIFIABLE CLASSES OF PERSONS.  THIS
IS ALLEGED TO BE ESTABLISHMENT OF A "QUOTA" SYSTEM IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  /5/ 

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DENIED
BOTH SETS OF PLAINTIFFS RELIEF ON THE GROUND THAT THERE WAS NO
JUSTICIABLE QUESTION BEFORE IT.  /6/ THE UNITED STATES COURT OF APPEALS
REVERSED THE DISTRICT COURT AND HELD THAT THE QUESTIONS PRESENTED IN
BOTH SUITS WERE JUSTICIABLE.  IT UNANIMOUSLY REJECTED THE CHALLENGE
MADE BY THE ILLINOIS DELEGATES, AND BY A 2-1 VOTE UPHELD THE CLAIM OF
THE DELEGATES FROM CALIFORNIA THAT THE BELATED CHANGE IN THE RULES
CONSTITUTED A DENIAL OF DUE PROCESS OF LAW. 

THE LOSING PARTIES IN THE COURT OF APPEALS SEEK REVIEW, AND TODAY
THIS COURT GRANTS PARTIAL RELIEF IN THE FORM OF A STAY OF THE JUDGMENTS
OF THE COURT OF APPEALS.  THE COURT HOLDS, IN EFFECT, THAT EVEN IF THE
DISTRICT COURT WAS INCORRECT IN RULING THAT THE ISSUES BEFORE IT WERE
"POLITICAL QUESTIONS" NOT PROPERLY JUSTICIABLE IN A COURT OF LAW, THE
POSTURE AND TIMING OF THESE CASES REQUIRE THAT FEDERAL COURTS DEFER TO
THE DEMOCRATIC NATIONAL CONVENTION FOR RESOLUTION OF THE UNDERLYING
DISPUTES.  I CANNOT AGREE. 

IN EACH OF THESE CASES, THE CLAIM IS MADE THAT THE CREDENTIALS
COMMITTEE HAS IMPAIRED THE RIGHT OF DEMOCRATIC VOTERS TO HAVE THEIR
VOTES COUNTED IN A PRESIDENTIAL PRIMARY ELECTION.  THE RELATED CLAIM IS
ALSO MADE THAT THE COMMITTEE HAS DEPRIVED THE DELEGATES THEMSELVES OF
THEIR RIGHT TO PARTICIPATE IN THE CONVENTION, BY METHODS THAT DENY THEM
DUE PROCESS OF LAW.  BOTH THESE CLAIMS ARE ENTITLED TO JUDICIAL
RESOLUTION, AND NOW IS THE MOST APPROPRIATE TIME FOR THEM TO BE HEARD. 

IF THESE CASES PRESENT JUSTICIABLE CONTROVERSIES, THEN WE ARE FACED
WITH A DECISION AS TO THE MOST APPROPRIATE TIME TO RESOLVE THEM.  THERE
WOULD APPEAR TO BE THREE AVAILABLE CHOICES:  NOW; AFTER THE CREDENTIALS
COMMITTEE'S REPORT IS EITHER ACCEPTED OR REJECTED BY THE NATIONAL
CONVENTION; OR AFTER THE CONVENTION IS OVER.     THERE CAN BE NO DOUBT,
IN MY VIEW, THAT THERE IS, AT THE PRESENT TIME, A LIVE CONTROVERSY
BETWEEN THE EXCLUDED DELEGATES AND THE DEMOCRATIC NATIONAL COMMITTEE. 
NEVERTHELESS, BECAUSE THIS CONTROVERSY MAY VANISH AT THE NATIONAL
CONVENTION, IT IS SUGGESTED THAT JUDICIAL INTERVENTION IS PREMATURE AT
THIS POINT.  THIS MAY BE CORRECT WITH RESPECT TO A DECISION ON WHETHER
TO GRANT INJUNCTIVE RELIEF, BUT NOT WITH RESPECT TO THE APPROPRIATENESS
OF A DECLARATORY JUDGMENT. 

SHOULD THIS COURT, OR A LOWER FEDERAL COURT, BE COMPELLED TO WAIT
UNTIL THE NATIONAL CONVENTION MAKES A FINAL DECISION ON WHETHER IT WILL
SEAT THE DELEGATES EXCLUDED BY THE CREDENTIALS COMMITTEE, IT MAY NEVER
AGAIN BE PRACTICABLE TO CONSIDER THE IMPORTANT CONSTITUTIONAL ISSUES
PRESENTED.  ONCE THE CONVENTION RULES, WE WILL BE FACED WITH THE
HOBSON'S CHOICE BETWEEN REFUSING TO HEAR THE FEDERAL QUESTIONS AT ALL,
OR HEARING THEM AND POSSIBLY STOPPING THE DEMOCRATIC CONVENTION IN MID
STREAM.  THIS WOULD BE A FAR MORE SERIOUS INTRUSION INTO THE DEMOCRATIC
PROCESS THAN ANY WE ARE ASKED TO MAKE AT THIS TIME. 

IF WE WAIT EVEN LONGER-- UNTIL THE NATIONAL CONVENTION IS OVER-- AND
ULTIMATELY SUSTAIN THE DELEGATES' CLAIMS ON THE MERITS, WE WOULD HAVE
NO CHOICE BUT TO DECLARE THE CONVENTION NULL AND VOID AND TO REQUIRE
THAT IT BE REPEATED.  THE DISPUTE IN THESE CASES CONCERNS THE RIGHT TO
PARTICIPATE IN THE MACHINERY TO ELECT THE PRESIDENT OF THE UNITED
STATES.  IF PARTICIPATION IS DENIED, THERE IS NO POSSIBLE WAY FOR THE
UNDERLYING DISPUTES TO BECOME MOOT.  THE DRASTIC REMEDY THAT DELAY
MIGHT REQUIRE SHOULD BE AVOIDED AT ALL COSTS. 

IT IS, THEREFORE, OBVIOUS TO ME THAT NOW IS THE TIME FOR US TO ACT. 
IT IS SIGNIFICANT IN THIS REGARD THAT THE DELEGATES REQUEST
DECLARATORY, AS WELL AS INJUNCTIVE, RELIEF.  A DECLARATORY JUDGMENT IS
A MILDER REMEDY THAN AN INJUNCTION, CF. PEREZ V. LEDESMA, 401 U.S. 82,
111 (1971) (BRENNAN, J., CONCURRING IN PART AND DISSENTING IN PART). 
IT IS A PARTICULARLY APPROPRIATE REMEDY UNDER THESE CIRCUMSTANCES,
BECAUSE IT CAN PROTECT ANY CONSTITUTIONAL RIGHTS THAT MAY BE THREATENED
AT THE SAME TIME THAT THE PREMATURE ISSUANCE OF AN INJUNCTION IS
AVOIDED.  HENCE, I BELIEVE THAT WE SHOULD CONSIDER THE PRAYER FOR
DECLARATORY RELIEF AND THAT WE SHOULD DO SO NOW. 

IN GRANTING THE STAYS, THEN, THE COURT SEEMS TO RELY AT LEAST IN
PART ON THE VIEW THAT THE CLAIMS ARE NOT YET RIPE FOR DECISION, A VIEW
WHICH I CANNOT ACCEPT FOR THE REASONS STATED ABOVE.  IN ADDITION, THE
COURT SUGGESTS THAT JUDICIAL RELIEF WILL BE INAPPROPRIATE EVEN AFTER
THE FULL CONVENTION HAS RULED ON THESE CLAIMS.  THE POINT APPEARS TO BE
THAT, QUITE APART FROM THE MERE MATTER OF TIMING, THE CASES PRESENT A
"POLITICAL QUESTION," OR ARE OTHERWISE NONJUSTICIABLE, BECAUSE THEY
CONCERN THE INTERNAL DECISIONMAKING OF A POLITICAL PARTY.  THAT
ARGUMENT MISCONCEIVES THE NATURE AND THE PURPOSE OF THE DOCTRINE.  HALF
A CENTURY AGO, MR. JUSTICE HOLMES, WRITING FOR A UNANIMOUS COURT, MADE
IT CLEAR THAT A QUESTION IS NOT "POLITICAL," IN THE JURISDICTIONAL
SENSE, MERELY BECAUSE IT INVOLVES THE OPERATIONS OF A POLITICAL PARTY: 

     "THE OBJECTION THAT THE SUBJECT MATTER OF THE SUIT IS
POLITICAL

  IS LITTLE MORE THAN A PLAY UPON WORDS.  OF COURSE THE PETITION

  CONCERNS POLITICAL ACTION BUT IT ALLEGES AND SEEKS TO RECOVER FOR

 PRIVATE DAMAGE.  THAT PRIVATE DAMAGE MAY BE CAUSED BY SUCH

  POLITICAL ACTION AND MAY BE RECOVERED FOR IN A SUIT AT LAW HARDLY

  HAS BEEN DOUBTED FOR OVER TWO HUNDRED YEARS, SINCE ASHBY V.

  WHITE, 2 LD. RAYM.  938, 3 ID. 320, AND HAS BEEN RECOGNIZED BY

  THIS COURT.  WILEY V. SINKLER, 179 U.S. 58, 64, 65.  GILES V.

  HARRIS, 189 U.S. 475, 485.  SEE ALSO JUDICIAL CODE, SEC. 24(11),

  (12), (14).  ACT OF MARCH 3, 1911, C. 231; 36 STAT. 1087, 1092. 

  IF THE DEFENDANTS' CONDUCT WAS A WRONG TO THE PLAINTIFF THE SAME

  REASONS THAT ALLOW A RECOVERY FOR DENYING THE PLAINTIFF A VOTE AT

  A FINAL ELECTION ALLOW IT FOR DENYING A VOTE AT THE PRIMARY

  ELECTION THAT MAY DETERMINE THE FINAL RESULT."  NIXON V. HERNDON,

  273 U.S. 536, 540 (1927). 

THE DOCTRINE OF "POLITICAL QUESTIONS" WAS FASHIONED TO DEAL WITH A
VERY DIFFERENT PROBLEM, WHICH HAS NOTHING TO DO WITH THIS CASE.  AS THE
COURT SAID IN BAKER V. CARR, 369 U.S. 186 (1962), THE BASIC
CHARACTERISTIC OF A POLITICAL QUESTION IS THAT ITS RESOLUTION WOULD
LEAD A COURT INTO CONFLICT WITH ONE OR MORE OF THE COORDINATE BRANCHES
OF GOVERNMENT; COURTS DECLINE TO DECIDE POLITICAL QUESTIONS OUT OF
DEFERENCE TO THE SEPARATION OF POWERS.  369 U.S.,AT 217; SEE POWELL V.
MCCORMACK, 396 U.S. 486, 518-549 (1969).  NEITHER THE EXECUTIVE NOR THE
LEGISLATIVE BRANCH OF GOVERNMENT PURPORTS TO HAVE JURISDICTION OVER THE
CLAIMS ASSERTED IN THESE CASES.  APART FROM THE JUDICIAL FORUM, ONLY
ONE OTHER FORUM HAS BEEN SUGGESTED-- THE FULL CONVENTION OF THE
NATIONAL DEMOCRATIC PARTY-- AND THAT IS MOST ASSUREDLY NOT A COORDINATE
BRANCH OF GOVERNMENT TO WHICH THE FEDERAL COURTS OWE DEFERENCE WITHIN
THE MEANING OF THE SEPARATION OF POWERS OR THE POLITICAL-QUESTION
DOCTRINE. 

MOREOVER, IT CANNOT BE SAID THAT "JUDICIALLY MANAGEABLE STANDARDS"
ARE LACKING FOR THE DETERMINATIONS REQUIRED BY THESE CASES, 369 U.S.,AT
217.  THE ILLINOIS CHALLENGE REQUIRES THE COURT TO DETERMINE WHETHER
CERTAIN RULES ADOPTED BY THE NATIONAL PARTY FOR THE SELECTION OF
DELEGATES VIOLATE THE FIRST AND FOURTEENTH AMENDMENT RIGHTS OF ILLINOIS
VOTERS AND, IF THE RULES ARE VALID, WHETHER THEY WERE CORRECTLY APPLIED
TO THE FACTS OF THE CASE.  THE CALIFORNIA CHALLENGE REQUIRES THE COURT
TO DETERMINE WHETHER THE VOTES OF PARTY MEMBERS WERE COUNTED IN
ACCORDANCE WITH THE RULES ANNOUNCED PRIOR TO THE ELECTION AND, IF NOT,
WHETHER A CHANGE IN THE RULES AFTER THE ELECTION VIOLATES THE
CONSTITUTIONAL RIGHTS OF THE VOTERS OR THE CANDIDATES.  BOTH THESE
DETERMINATIONS ARE WELL WITHIN THE RANGE OF QUESTIONS REGULARLY
PRESENTED TO COURTS FOR DECISION, AND CAPABLE OF JUDICIAL RESOLUTION. 

A SECOND THRESHOLD OBJECTION, HOWEVER, HAS BEEN RAISED AS AN
OBSTACLE TO JUDICIAL DETERMINATION OF THESE CLAIMS.  EVEN IF THE
ACTIONS OF A POLITICAL PARTY ARE NOT INHERENTLY NONJUSTICIABLE, IT IS
SUGGESTED THAT THE CONSTITUTION PLACES FEW, IF ANY, RESTRICTIONS ON THE
ACTIONS OF A POLITICAL PARTY, AND NONE OF THOSE RESTRICTIONS ARE EVEN
ARGUABLY IMPLICATED BY ANY OF THE ALLEGATIONS HERE.  ON THIS VIEW,
THEN, THE PLAINTIFFS BELOW FAILED TO STATE A CLAIM ON WHICH RELIEF CAN
BE GRANTED.  I DISAGREE. 

1.  FIRST, I AGREE WITH THE COURT OF APPEALS THAT THE ACTION OF THE
PARTY IN THESE CASES WAS GOVERNMENTAL ACTION, AND THEREFORE SUBJECT TO
THE REQUIREMENTS OF DUE PROCESS.  THE PRIMARY ELECTION WAS, BY STATE
LAW, THE FIRST STEP IN A PROCESS DESIGNED TO SELECT A DEMOCRATIC
CANDIDATE FOR PRESIDENT; THE STATE WILL INCLUDE ELECTORS PLEDGED TO
THAT CANDIDATE ON THE BALLOT IN THE GENERAL ELECTION.  THE STATE IS
INTERTWINED IN THE PROCESS AT EVERY STEP, NOT ONLY AUTHORIZING THE
PRIMARY BUT CONDUCTING IT, AND ADOPTING ITS RESULT FOR USE IN THE
GENERAL ELECTION.  IN THESE CIRCUMSTANCES, THE PRIMARY MUST BE REGARDED
AS AN INTERGRAL PART OF THE GENERAL ELECTION, SEE UNITED STATES V.
CLASSIC, 313 U.S. 299 (1941), QUOTED INFRA, AT 15-16, AND THE RULES
THAT REGULATE THE PRIMARY MUST BE HELD TO THE STANDARDS OF ELEMENTARY
DUE PROCESS. 

IT IS SUGGESTED THAT CALIFORNIA, AT LEAST, CANNOT BE CHARGED WITH
RESPONSIBILITY FOR THE RULES THAT ARE CHALLENGED HERE, BECAUSE
CALIFORNIA BY LAW SOUGHT (ALBEIT UNSUCCESSFULLY) TO PROHIBIT THE PARTY
FROM ADOPTING THOSE RULES.  THAT ARGUMENT IS SOMEWHAT DISINGENUOUS,
HOWEVER, UNLESS IT CAN SERIOUSLY BE CONTENDED THAT CALIFORNIA WILL
DECLINE TO RECOGNIZE ON ITS BALLOT IN THE GENERAL ELECTION THE NOMINEE
OF THE DEMOCRATIC CONVENTION.  FOR SO LONG AS THE STATE RECOGNIZES AND
ADOPTS THE FRUITS OF THE PRIMARY AS IT WAS ACTUALLY CONDUCTED, THEN THE
STATE HAS MADE THAT PRIMARY AN INTEGRAL PART OF THE ELECTION PROCESS,
AND INFUSED THE PRIMARY WITH STATE ACTION, NO MATTER HOW VOCIFEROUSLY
IT MAY PROTECT.  A STATE CANNOT RENDER THE ACTION OF OFFICALS "PRIVATE"
AND STRIP IT OF ITS CHARACTER AS STATE ACTION, MERELY BY DISAPPROVING
THAT ACTION.  MONROE V. PAPE, 365 U.S. 167, 172-187 (1961). 

THUS, WHEN THE PARTY DEPRIVED THE CANDIDATES OF THEIR STATUS AS
DELEGATES, IT WAS OBLIGED TO DO SO IN A MANNER CONSISTENT WITH THE
DEMANDS OF DUE PROCESS.  BECAUSE THE COURT DOES NOT REACH THE QUESTION,
I LIKEWISE REFRAIN FROM EXPRESSING MY VIEWS ON THE MERITS OF THE DUE
PROCESS CHALLENGE IN EITHER CASE.  IT IS SUFFICIENT TO SAY THAT BEYOND
ALL DOUBT, THESE CLAIMANTS ARE ENTITLED TO A JUDICIAL RESOLUTION OF
THEIR CLAIM. 

2.  EVEN IF THE ACTION OF THE CREDENTIALS COMMITTEE DID NOT DENY THE
DELEGATES DUE PROCESS, PETITIONERS IN THESE CASES CLAIM THAT IT
IMPAIRED THE FEDERALLY PROTECTED RIGHT OF VOTERS TO VOTE, AND TO HAVE
THEIR VOTES COUNTED, IN THE PRESIDENTIAL PRIMARY ELECTION.  /7/ 

IT IS, OF COURSE, WELL ESTABLISHED THAT THE CONSTITUTION PROTECTS
THE RIGHT TO VOTE IN FEDERAL OR STATE ELECTIONS WITHOUT IMPAIRMENT ON
THE BASIS OF RACE OR COLOR, CONST. AMDT. XV, OR ON THE BASIS OF ANY
OTHER INVIDIOUS CLASSIFICATION, E.G., BAKER V. CARR, 369 U.S. 186
(1962); DUNN V. BLUMSTEIN, 405 U.S. 330 (1972).  WITH RESPECT TO
FEDERAL ELECTIONS, HOWEVER, THE RIGHT TO VOTE ENJOYS A BROADER
CONSTITUTIONAL PROTECTION.  IN OREGON V. MITCHELL, 400 U.S. 112 (1970),
MR. JUSTICE BLACK CITED A LONG LINE OF PRECEDENTS FOR THE PROPOSITION
THAT CONGRESS HAS ULTIMATE SUPERVISORY POWER OVER ALL CONGRESSIONAL
ELECTIONS, BASED ON ART. I, SEC. 4, OF THE CONSTITUTION.  E.G., EX
PARTE SIEBOLD, 100 U.S. 371 (1880); EX PARTE YARBROUGH, 110 U.S. 651
(1884); UNITED STATES V. MOSLEY, 238 U.S. 383 (1915); UNITED STATES V.
CLASSIC, SUPRA.  ON THE BASIS OF THESE PRECEDENTS, IT IS BEYOND DISPUTE
THAT THE RIGHT TO VOTE IN CONGRESSIONAL ELECTIONS IS A FEDERALLY
SECURED RIGHT. 

MR. JUSTICE BLACK WENT ON TO ARGUE THAT PRESIDENTIAL ELECTIONS HAVE
THE SAME CONSTITUTIONAL STATUS:  "IT CANNOT BE SERIOUSLY CONTENDED THAT
CONGRESS HAS LESS POWER OVER THE CONDUCT OF PRESIDENTIAL ELECTIONS THAN
IT HAS OVER CONGRESSIONAL ELECTIONS."  400 U.S.,AT 124.  TO SUPPORT
THIS CONCLUSION, HE RELIED ON ART. II, SEC. 1, AND ITS JUDICIAL
INTERPRETATION IN BURROUGHS V. UNITED STATES, 290 U.S. 534 (1934), AND
ALSO ON "THE VERY CONCEPT OF A SUPREME NATIONAL GOVERNMENT WITH
NATIONAL OFFICERS."  400 U.S.,AT 124 N. 7.  ON THE BASIS OF OREGON V.
MITCHELL, THEN, IN WHICH MR. JUSTICE BLACK'S ANALYSIS WAS DECISIVE, THE
RIGHT TO VOTE IN NATIONAL ELECTIONS, BOTH CONGRESSIONAL AND
PRESIDENTIAL, IS SECURED BY THE FEDERAL CONSTITUTION. 

MOREOVER, FEDERAL PROTECTION OF THE RIGHT TO VOTE IN FEDERAL
ELECTIONS EXTENDS NOT ONLY TO THE GENERAL ELECTION, BUT TO THE PRIMARY
ELECTION AS WELL.  IN UNITED STATES V. CLASSIC, SUPRA, THIS COURT
SUSTAINED AN INDICTMENT CHARGING A CONSPIRACY "TO INJURE AND OPPRESS
CITIZENS IN THE FREE EXERCISE AND ENJOYMENT OF RIGHTS AND PRIVILEGES
SECURED TO THEM BY THE CONSTITUTION AND LAWS OF THE UNITED STATES,
NAMELY, (1) THE RIGHT OF QUALIFIED VOTERS WHO CAST THEIR BALLOTS IN THE
PRIMARY ELECTION TO HAVE THEIR BALLOTS COUNTED AS CAST FOR THE
CANDIDATE OF THEIR CHOICE, AND (2) THE RIGHT OF THE CANDIDATES TO RUN
FOR THE OFFICE OF CONGRESSMAN AND TO HAVE THE VOTES IN FAVOR OF THEIR
NOMINATION COUNTED AS CAST."  ID., AT 308.  IT WAS CRITICAL TO THE
DECISION TO HOLD, FIRST, THAT THE CONSTITUTION PROTECTS THE RIGHT TO
VOTE IN FEDERAL CONGRESSIONAL ELECTIONS, AND, SECOND, THAT THE RIGHT TO
VOTE IN THE GENERAL ELECTION INCLUDES THE RIGHT TO VOTE IN THE
PRIMARY. 

"WHERE THE STATE LAW HAS MADE THE PRIMARY AN INTEGRAL PART OF THE
PROCEDURE OF CHOICE, OR WHERE IN FACT THE PRIMARY EFFECTIVELY CONTROLS
THE CHOICE, THE RIGHT OF THE ELECTOR TO HAVE HIS BALLOT COUNTED AT THE
PRIMARY IS LIKEWISE INCLUDED IN THE RIGHT PROTECTED BY ARTICLE I, SEC.
2.  AND THIS RIGHT OF PARTICIPATION IS PROTECTED JUST AS IS THE RIGHT
TO VOTE AT THE ELECTION, WHERE THE PRIMARY IS BY LAW MADE AN INTEGRAL
PART OF THE ELECTION MACHINERY, WHETHER THE VOTER EXERCISES HIS RIGHT
IN A PARTY PRIMARY WHICH INVARIABLY, SOMETIMES OR NEVER DETERMINES THE
ULTIMATE CHOICE OF THE REPRESENTATIVE."  ID., AT 318.  THAT REASONING
HAS EQUAL FORCE IN THE CASE OF A PRESIDENTIAL ELECTION.  WHERE THE
PRIMARY IS BY LAW MADE AN INTEGRAL PART OF THE ELECTION MACHINERY, THEN
THE RIGHT TO VOTE AT THE PRIMARY IS PROTECTED JUST AS IS THE RIGHT TO
VOTE AT THE ELECTION.  IN THE CASES BEFORE THIS COURT, IT IS CLAIMED
THAT THE PRESIDENTIAL PRIMARY IS AN INTEGRAL PART OF THE ELECTION
MACHINERY, AND THAT THE RIGHT TO VOTE IN THE PRESIDENTIAL PRIMARY HAS
BEEN IMPAIRED.  THAT CLAIM SHOULD BE HEARD AND DECIDED ON ITS MERITS,
CERTAINLY NOT BY THE USE OF THE STAY MECHANISM IN LIEU OF GRANTING
CERTIORARI AND PLENARY CONSIDERATION. 

IT IS UNFORTUNATE THAT CASES LIKE THESE MUST BE DECIDED QUICKLY OR
NOT AT ALL, BUT SOMETIMES THAT CANNOT BE AVOIDED.  WHERE THERE ARE NO
SUBSTANTIAL FACTS IN DISPUTE, AND WHERE THE ALLEGATION IS MADE THAT A
RIGHT AS FUNDAMENTAL AS THE RIGHT TO PARTICIPATE IN THE PROCESS LEADING
TO THE ELECTION OF THE PRESIDENT OF THE UNITED STATES IS THREATENED, I
BELIEVE THAT OUR DUTY LIES IN MAKING DECISIONS, NOT AVOIDING THEM. 

I WOULD THEREFORE DENY THE APPLICATIONS FOR STAYS. 

/1/  WHILE THE DELEGATES COUCH THEIR ARGUMENTS IN VARIOUS WAYS, ALL
OF THE ARGUMENTS BOIL DOWN TO THESE TWO:  I.E., THEY HAVE BEEN DENIED
DUE PROCESS AND THE VOTERS WHO ELECTED THEM HAVE BEEN DENIED AN
OPPORTUNITY TO VOTE FOR THE CANDIDATE OR DELEGATE OF THEIR CHOICE. 

/2/  THIS APPROVAL WAS GIVEN IN THE FORM OF A WRITTEN COMMUNICATION
FROM THE COMMISSION ON PARTY STRUCTURE AND DELEGATE SELECTION TO THE
DEMOCRATIC NATIONAL COMMITTEEMAN FROM CALIFORNIA.     /3/  A HEARING
OFFICER FOUND MERIT IN THE DELEGATES' CLAIMS, BUT HE WAS REVERSED BY
THE CREDENTIALS COMMITTEE. 

/4/  REPORT OF HEARING OFFICER 2, ADOPTED BY CREDENTIALS COMMITTEE,
JUNE 30, 1972. 

/5/  SEE REPORT OF HEARING OFFICER 3-4. 

/6/  THE DISTRICT COURT JUDGE INDICATED THAT, IN HIS VIEW, A QUOTA
SYSTEM WOULD RAISE SERIOUS CONSTITUTIONAL QUESTIONS.  TWO JUDGES OF THE
COURT OF APPEALS FOUND THAT THE RULES DID NOT REQUIRE ANY QUOTAS. 
JUDGE MACKINNON DISAGREED, BELIEVING THAT THE RULES DID ESTABLISH A
QUOTA AND THAT THEY WERE, THEREFORE, UNCONSTITUTIONAL.     /7/  THE
ALLEGED IMPAIRMENT OF THAT RIGHT MAY BE REGARDED AS STATE ACTION, AS
ABOVE, AND HENCE SUBJECT TO CHALLENGE UNDER 43 U.C.S.A. 1983. 
ALTERNATIVELY, IT MAY BE REGARDED AS THE ACTION OF THE FEDERAL
GOVERNMENT, ON THE THEORY THAT CONGRESS HAS THE ULTIMATE AUTHORITY OVER
PRESIDENTIAL ELECTIONS, AND HAS ACQUIESCED IN THE ADMINISTRATION OF THE
PRIMARY ELECTION PROCESS BY THE NATIONAL POLITICAL PARTIES; IN THAT
CASE IT MAY BE SUBJECT TO CHALLENGE ON THE THEORY OF AN IMPLIED REMEDY
FOR A FEDERAL DEPRIVATION OF CONSTITUTIONAL RIGHTS, SEE BIVENS V. SIX
UNKNOWN AGENTS, 403 U.S. 388 (1971).  FINALLY, IT MAY BE REGARDED AS
PRIVATE ACTION THAT INTERFERES WITH A FEDERALLY PROTECTED RIGHT; IN
THAT CASE THE EXISTENCE OF A RIGHT OF ACTION MAY DEPEND ON THE QUESTION
WHETHER THE CLAIMS CAN BE BROUGHT WITHIN THE TERMS OF 42 U.S.C.
1985(3), WHICH PROTECTS CERTAIN FEDERAL RIGHTS AGAINST CERTAIN KINDS OF
PRIVATE INTERFERENCE, SEE GRIFFIN V. BRECKENRIDGE, 403 U.S. 88 (1971). 

..END :
























FURMAN V. GEORGIA, 408 U.S. 238 


       FURMAN V. GEORGIA

        CERTIORARI TO THE SUPREME COURT OF GEORGIA

        NO. 69-5003.  ARGUED JANUARY 17, 1972-- DECIDED JUNE 29,

           1972  /1/ 


IMPOSITION AND CARRYING OUT OF DEATH PENALTY IN THESE CASES HELD TO
CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF EIGHTH AND
FOURTEENTH AMENDMENTS. 

NO. 69-5003, 225 GA. 253, 167 S.E.2D 628; NO. 69-5030, 225 GA. 790,
171 S.E. 2D 501; NO. 69-5031, 447 S.W. 2D 932, REVERSED AND REMANDED. 

PER CURIAM. 

PETITIONER IN NO. 69-5003 WAS CONVICTED OF MURDER IN GEORGIA AND WAS
SENTENCED TO DEATH PURSUANT TO GA. CODE ANN. SEC. 26-1005 (SUPP. 1971)
(EFFECTIVE PRIOR TO JULY 1, 1969).  225 GA. 253, 167 S.E.2D 628
(1969).  PETITIONER IN NO. 69-5030 WAS CONVICTED OF RAPE IN GEORGIA AND
WAS SENTENCED TO DEATH PURSUANT TO GA. CODE ANN. SEC. 26-1302 (SUPP.
1971) (EFFECTIVE PRIOR TO JULY 1, 1969).  225 GA. 790, 171 S.E.2D 501
(1969).  PETITIONER IN NO. 69-5031 WAS CONVICTED OF RAPE IN TEXAS AND
WAS SENTENCED TO DEATH PURSUANT TO TEX. PENAL CODE, ART. 1189 (1961). 
447 S.W.2D 932 (CT. CRIM. APP. 1969).  CERTIORARI WAS GRANTED LIMITED
TO THE FOLLOWING QUESTION:  "DOES THE IMPOSITION AND CARRYING OUT OF
THE DEATH PENALTY IN (THESE CASES) CONSTITUTE CRUEL AND UNUSUAL
PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS?"  403
U.S. 952 (1971).  THE COURT HOLDS THAT THE IMPOSITION AND CARRYING OUT
OF THE DEATH PENALTY IN THESE CASES CONSTITUTE CRUEL AND UNUSUAL
PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.  THE
JUDGMENT IN EACH CASE IS THEREFORE REVERSED INSOFAR AS IT LEAVES
UNDISTURBED THE DEATH SENTENCE IMPOSED, AND THE CASES ARE REMANDED FOR
FURTHER PROCEEDINGS. 

              SO ORDERED. 

/1/  TOGETHER WITH NO. 69-5030, JACKSON V. GEORGIA, ON CERTIORARI TO
THE SAME COURT, AND NO. 69-5031, BRANCH V. TEXAS, ON CERTIORARI TO THE
COURT OF CRIMINAL APPEALS OF TEXAS. 

MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, MR.
JUSTICE WHITE, AND MR. JUSTICE MARSHALL HAVE FILED SEPARATE OPINIONS IN
SUPPORT OF THE JUDGMENTS.  THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, MR.
JUSTICE POWELL, AND MR. JUSTICE REHNQUIST HAVE FILED SEPARATE
DISSENTING OPINIONS. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IN THESE THREE CASES THE DEATH PENALTY WAS IMPOSED, ONE OF THEM FOR
MURDER, AND TWO FOR RAPE.  IN EACH THE DETERMINATION OF WHETHER THE
PENALTY SHOULD BE DEATH OR A LIGHTER PUNISHMENT WAS LEFT BY THE STATE
TO THE DISCRETION OF THE JUDGE OR OF THE JURY.  IN EACH OF THE THREE
CASES THE TRIAL WAS TO A JURY.  THEY ARE HERE ON PETITIONS FOR
CERTIORARI WHICH WE GRANTED LIMITED TO THE QUESTION WHETHER THE
IMPOSITION AND EXECUTION OF THE DEATH PENALTY CONSTITUTE "CRUEL AND
UNUSUAL PUNISHMENT" WITHIN THE MEANING OF THE EIGHTH AMENDMENT AS
APPLIED TO THE STATES BY THE FOURTEENTH.  /1/  I VOTE TO VACATE EACH
JUDGMENT, BELIEVING THAT THE EXACTION OF THE DEATH PENALTY DOES VIOLATE
THE EIGHTH AND FOURTEENTH AMENDMENTS. 

THAT THE REQUIREMENTS OF DUE PROCESS BAN CRUEL AND UNUSUAL
PUNISHMENT IS NOW SETTLED.  LOUISIANA EX REL. FRANCIS V. RESWEBER, 329
U.S. 459, 463, AND 473-474 (BURTON J., DISSENTING); ROBINSON V.
CALIFORNIA, 370 U.S. 660, 667.  IT IS ALSO SETTLED THAT THE
PROSCRIPTION OF CRUEL AND UNUSUAL PUNISHMENTS FORBIDS THE JUDICIAL
IMPOSITION OF THEM AS WELL AS THEIR IMPOSITION BY THE LEGISLATURE. 
WEEMS V. UNITED STATES, 217 U.S. 349, 378-382. 

CONGRESSMAN BINGHAM, IN PROPOSING THE FOURTEENTH AMENDMENT,
MAINTAINED THAT "THE PRIVILEGE OR IMMUNITIES OF CITIZENS OF THE UNITED
STATES" AS PROTECTED BY THE FOURTEENTH AMENDMENT INCLUDED PROTECTION
AGAINST "CRUEL AND UNUSUAL PUNISHMENTS:" 

"(MANY INSTANCES OF STATE INJUSTICE AND OPPRESSION HAVE ALREADY
OCCURRED IN THE STATE LEGISLATION OF THIS UNION, OF FLAGRANT VIOLATIONS
OF THE GUARANTIED PRIVILEGES OF CITIZENS OF THE UNITED STATES, FOR
WHICH THE NATIONAL GOVERNMENT FURNISHED AND COULD FURNISH BY LAW NO
REMEDY WHATEVER.  CONTRARY TO THE EXPRESS LETTER OF YOUR CONSTITUTION,
'CRUEL AND UNUSUAL PUNISHMENTS' HAVE BEEN INFLICTED UNDER STATE LAWS
WITHIN THIS UNION UPON CITIZENS, NOT ONLY FOR CRIMES COMMITTED, BUT FOR
SACRED DUTY DONE, FOR WHICH AND AGAINST WHICH THE GOVERNMENT OF THE
UNITED STATES HAD PROVIDED NO REMEDY AND COULD PROVIDE NONE."  CONG.
GLOBE, 39TH CONG., 1ST SESS., 2542. 

WHETHER THE PRIVILEGES AND IMMUNITIES ROUTE IS FOLLOWED, OR THE DUE
PROCESS ROUTE, THE RESULT IS THE SAME. 

IT HAS BEEN ASSUMED IN OUR DECISIONS THAT PUNISHMENT BY DEATH IS NOT
CRUEL, UNLESS THE MANNER OF EXECUTION CAN BE SAID TO BE INHUMAN AND
BARBAROUS.  IN RE KEMMLER, 136 U.S. 436, 447.  IT IS ALSO SAID IN OUR
OPINIONS THAT THE PROSCRIPTION OF CRUEL AND UNUSUAL PUNISHMENTS "IS NOT
FASTENED TO THE OBSOLETE BUT MAY ACQUIRE MEANING AS PUBLIC OPINION
BECOMES ENLIGHTENED BY A HUMANE JUSTICE."  WEEMS V. UNITED STATES,
SUPRA, AT 378.  A LIKE STATEMENT WAS MADE IN TROP V. DULLES, 356 U.S.
86, 101, THAT THE EIGHTH AMENDMENT "MUST DRAW ITS MEANING FROM THE
EVOLVING STANDARDS OF DECENCY THAT MARK THE PROGRESS OF A MATURING
SOCIETY." 

THE GENERALITY OF A LAW INFLICTING CAPITAL PUNISHMENT IS ONE THING. 
WHAT MAY BE SAID OF THE VALIDITY OF A LAW ON THE BOOKS AND WHAT MAY BE
DONE WITH THE LAW IN ITS APPLICATION DO, OR MAY, LEAD TO QUITE
DIFFERENT CONCLUSIONS. 

IT WOULD SEEM TO BE INCONTESTABLE THAT THE DEATH PENALTY INFLICTED
ON ONE DEFENDANT IS "UNUSUAL" IF IT DISCRIMINATES AGAINST HIM BY REASON
OF HIS RACE, RELIGION, WEALTH, SOCIAL POSITION, OR CLASS, OR IF IT IS
IMPOSED UNDER A PROCEDURE THAT GIVES ROOM FOR THE PLAY OF SUCH
PREJUDICES. 

THERE IS EVIDENCE THAT THE PROVISION OF THE ENGLISH BILL OF RIGHTS
OF 1689, FROM WHICH THE LANGUAGE OF THE EIGHTH AMENDMENT WAS TAKEN, WAS
CONCERNED PRIMARILY WITH SELECTIVE OR IRREGULAR APPLICATION OF HARSH
PENALTIES AND THAT ITS AIM WAS TO FORBID ARBITRARY AND DISCRIMINATORY
PENALTIES OF A SEVERE NATURE."  /2/ 

    "FOLLOWING THE NORMAN CONQUEST OF ENGLAND IN 1066, THE OLD

  SYSTEM OF PENALTIES, WHICH ENSURED EQUALITY BETWEEN CRIME AND

  PUNISHMENT, SUDDENLY DISAPPEARED.  BY THE TIME SYSTEMATIC

  JUDICIAL RECORDS WERE KEPT, ITS DEMISE WAS ALMOST COMPLETE.  WITH

  THE EXCEPTION OF CERTAIN GRAVE CRIMES FOR WHICH THE PUNISHMENT

  WAS DEATH OR OUTLAWRY, THE ARBITRARY FINE WAS REPLACED BY A

  DISCRETIONARY AMERCEMENT.  ALTHOUGH AMERCEMENT'S DISCRETIONARY

  CHARACTER ALLOWED THE CIRCUMSTANCES OF EACH CASE TO BE TAKEN INTO

  ACCOUNT AND THE LEVEL OF CASH PENALTIES TO BE DECREASED OR

  INCREASED ACCORDINGLY, THE AMERCEMENT PRESENTED AN OPPORTUNITY

FOR EXCESSIVE OR OPPRESSIVE FINES. 

     "THE PROBLEM OF EXCESSIVE AMERCEMENTS BECAME SO PREVALENT THAT

  THREE CHAPTERS OF THE MAGNA CARTA WERE DEVOTED TO THEIR

  REGULATION.  MAITLAND SAID OF CHAPTER 14 THAT 'VERY LIKELY THERE

WAS NO CLAUSE IN THE MAGNA CARTA MORE GRATEFUL TO THE MASS OF THE

  PEOPLE.'  CHAPTER 14 CLEARLY STIPULATED AS FUNDAMENTAL LAW A

  PROHIBITION OF EXCESSIVENESS IN PUNISHMENT: 

     "'A FREE MAN SHALL NOT BE AMERCED FOR A TRIVIAL OFFENCE,
EXCEPT

  IN ACCORDANCE WITH THE DEGREE OF THE OFFENSE; AND FOR A SERIOUS

  OFFENCE HE SHALL BE AMERCED ACCORDING TO ITS GRAVITY, SAVING HIS

  LIVELIHOOD; AND A MERCHANT LIKEWISE, SAVING HIS MERCHANDISE; IN

  THE SAME WAY A VILLEIN SHALL BE AMERCED SAVING HIS WAINAGE; IF

  THEY FALL INTO OUR MERCY.  AND NONE OF THE AFORESAID AMERCEMENTS

  SHALL BE IMPOSED EXCEPT BY THE TESTIMONY OF REPUTABLE MEN OF THE

 NEIGHBORHOOD.'" 

THE ENGLISH BILL OF RIGHTS, ENACTED DECEMBER 19, 1689, STATED THAT
"EXCESSIVE BAIL OUGHT NOT TO BE REQUIRED, NOR EXCESSIVE FINES IMPOSED,
NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED."  /3/  THESE WERE THE
WORDS CHOSEN FOR OUR EIGHTH AMENDMENT.  A LIKE PROVISION HAD BEEN IN
VIRGINIA'S CONSTITUTION OF 1776 /4/  AND IN THE CONSTITUTIONS OF SEVEN
OTHER STATES.  /5/  THE NORTHWEST ORDINANCE, ENACTED UNDER THE ARTICLES
OF CONFEDERATION, INCLUDED A PROHIBITION OF CRUEL AND UNUSUAL
PUNISHMENTS.  /6/  BUT THE DEBATES OF THE FIRST CONGRESS ON THE BILL OF
RIGHTS THROW LITTLE LIGHT ON ITS INTENDED MEANING.  ALL THAT APPEARS IS
THE FOLLOWING: 

     "MR. SMITH, OF SOUTH CAROLINA, OBJECTED TO THE WORDS 'NOR
CRUEL

  AND UNUSUAL PUNISHMENT;' THE IMPORT OF THEM BEING TOO

  INDEFINITE. 

     "MR. LIVERMORE:  THE CLAUSE SEEMS TO EXPRESS A GREAT DEAL OF

  HUMANITY, ON WHICH ACCOUNT I HAVE NO OBJECTION TO IT; BUT AS IT

  SEEMS TO HAVE NO MEANING IN IT, I DO NOT THINK IT NECESSARY. 

  WHAT IS MEANT BY THE TERMS EXCESSIVE BAIL?  WHO ARE TO BE THE

  JUDGES?  WHAT IS UNDERSTOOD BY EXCESSIVE FINES?  IT LIES WITH THE

  COURT TO DETERMINE.  NO CRUEL AND UNUSUAL PUNISHMENT IS TO BE

  INFLICTED; IT IS SOMETIMES NECESSARY TO HANG A MAN, VILLAINS

  OFTEN DESERVE WHIPPING, AND PERHAPS HAVING THEIR EARS CUT OFF;

BUT ARE WE IN FUTURE TO BE PREVENTED FROM INFLICTING THESE

PUNISHMENTS BECAUSE THEY ARE CRUEL?  IF A MORE LENIENT MODE OF

  CORRECTING VICE AND DETERRING OTHERS FROM THE COMMISSION OF IT

  COULD BE INVENTED, IT WOULD BE VERY PRUDENT IN THE LEGISLATURE TO

  ADOPT IT; BUT UNTIL WE HAVE SOME SECURITY THAT THIS WILL BE DONE,

  WE OUGHT NOT TO BE RESTRAINED FROM MAKING NECESSARY LAWS BY ANY

  DECLARATION OF THIS KIND." 

THE WORDS "CRUEL AND UNUSUAL" CERTAINLY INCLUDE PENALTIES THAT ARE
BARBARIC.  BUT THE WORDS, AT LEAST WHEN READ IN LIGHT OF THE ENGLISH
PROSCRIPTION AGAINST SELECTIVE AND IRREGULAR USE OF PENALTIES, SUGGEST
THAT IT IS "CRUEL AND UNUSUAL" TO APPLY THE DEATH PENALTY-- OR ANY
OTHER PENALTY-- SELECTIVELY TO MINORITIES WHOSE NUMBERS ARE FEW, WHO
ARE OUTCASTS OF SOCIETY, AND WHO ARE UNPOPULAR, BUT WHOM SOCIETY IS
WILLING TO SEE SUFFER THOUGH IT WOULD NOT COUNTENANCE GENERAL
APPLICATION OF THE SAME PENALTY ACROSS THE BOARD.  /8/  JUDGE TUTTLE,
INDEED, MADE ABUNDANTLY CLEAR IN NOVAK V. BETO, 453 F.2D 661, 673-679
(CA5) (CONCURRING IN PART AND DISSENTING IN PART), THAT SOLITARY
CONFINEMENT MAY AT TIMES BE "CRUEL AND UNUSUAL" PUNISHMENT.  CF. EX
PARTE MEDLEY, 134 U.S. 160; BROOKS V. FLORIDA, 389 U.S. 413. 

THE COURT IN MCGAUTHA V. CALIFORNIA, 402 U.S. 183, 198, NOTED THAT
IN THIS COUNTRY THERE WAS ALMOST FROM THE BEGINNING A "REBELLION
AGAINST THE COMMON-LAW RULE IMPOSING A MANDATORY DEATH SENTENCE ON ALL
CONVICTED MURDERERS."  THE FIRST ATTEMPTED REMEDY WAS TO RESTRICT THE
DEATH PENALTY TO DEFINED OFFENSES SUCH AS "PREMEDITATED" MURDER.  /9/
IBID.  BUT JURIES "TOOK THE LAW INTO THEIR OWN HANDS" AND REFUSED TO
CONVICT ON THE CAPITAL OFFENSE.  ID., AT 199. 

     "IN ORDER TO MEET THE PROBLEM OF JURY NULLIFICATION,

  LEGISLATURES DID NOT TRY, AS BEFORE, TO REFINE FURTHER THE

  DEFINITION OF CAPITAL HOMICIDES.  INSTEAD THEY ADOPTED THE METHOD

  OF FORTHRIGHTLY GRANTING JURIES THE DISCRETION WHICH THEY HAD

  BEEN EXERCISING IN FACT."  IBID. 

THE COURT CONCLUDED:  "IN LIGHT OF HISTORY, EXPERIENCE, AND THE
PRESENT LIMITATIONS OF HUMAN KNOWLEDGE, WE FIND IT QUITE IMPOSSIBLE TO
SAY THAT COMMITTING TO THE UNTRAMMELED DISCRETION OF THE JURY THE POWER
TO PRONOUNCE LIFE OR DEATH IN CAPITAL CASES IS OFFENSIVE TO ANYTHING IN
THE CONSTITUTION."  ID., AT 207. 

THE COURT REFUSED TO FIND CONSTITUTIONAL DIMENSIONS IN THE ARGUMENT
THAT THOSE WHO EXERCISE THEIR DISCRETION TO SEND A PERSON TO DEATH
SHOULD BE GIVEN STANDARDS BY WHICH THAT DISCRETION SHOULD BE
EXERCISED.  ID., AT 207-208. 

A RECENT WITNESS AT THE HEARINGS BEFORE SUBCOMMITTEE NO. 3 OF THE
HOUSE COMMITTEE ON THE JUDICIARY, 92D CONG., 2D SESS., ERNEST VAN DEN
HAAG, TESTIFYING ON H.R. 8414 ET AL., /10/  STATED: 

     "ANY PENALTY, A FINE, IMPRISONMENT OR THE DEATH PENALTY COULD

  BE UNFAIRLY OR UNJUSTLY APPLIED.  THE VICE IN THIS CASE IS NOT IN

  THE PENALTY BUT IN THE PROCESS BY WHICH IT IS INFLICTED.  IT IS

  UNFAIR TO INFLICT UNEQUAL PENALTIES ON EQUALLY GUILTY PARTIES, OR

  ON ANY INNOCENT PARTIES, REGARDLESS OF WHAT THE PENALTY IS." 

  ID., AT 116-117. 

BUT THOSE WHO ADVANCE THAT ARGUMENT OVERLOOK MCGAUTHA, SUPRA. 

WE ARE NOW IMPRISONED IN THE MCGAUTHA HOLDING.  INDEED THE SEEDS OF
THE PRESENT CASES ARE IN MCGAUTHA.  JURIES (OR JUDGES, AS THE CASE MAY
BE) HAVE PRACTICALLY UNTRAMMELED DISCRETION TO LET AN ACCUSED LIVE OR
INSIST THAT HE DIE.  /11/ 

MR. JUSTICE FIELD, DISSENTING IN O'NEIL V. VERMONT, 144 U.S. 323,
340, SAID, "THE STATE MAY, INDEED, MAKE THE DRINKING OF ONE DROP OF
LIQUOR AN OFFENSE TO BE PUNISHED BY IMPRISONMENT, BUT IT WOULD BE AN
UNHEARD-OF CRUELTY IF IT SHOULD COUNT THE DROPS IN A SINGLE GLASS AND
MAKE THEREBY A THOUSAND OFFENCES, AND THUS EXTEND THE PUNISHMENT FOR
DRINKING THE SINGLE GLASS OF LIQUOR TO AN IMPRISONMENT OF ALMOST
INDEFINITE DURATION."  WHAT THE LEGISLATURE MAY NOT DO FOR ALL CLASSES
UNIFORMLY AND SYSTEMATICALLY, A JUDGE OR JURY MAY NOT DO FOR A CLASS
THAT PREJUDICE SETS APART FROM THE COMMUNITY. 

THERE IS INCREASING RECOGNITION OF THE FACT THAT THE BASIC THEME OF
EQUAL PROTECTION IS IMPLICIT IN "CRUEL AND UNUSUAL" PUNISHMENTS.  "A
PENALTY . . . SHOULD BE CONSIDERED 'UNUSUALLY' IMPOSED IF IT IS
ADMINISTERED ARBITRARILY OR DISCRIMINATORILY."  /12/  THE SAME AUTHORS
ADD THAT "(THE EXTREME RARITY WITH WHICH APPLICABLE DEATH PENALTY
PROVISIONS ARE PUT TO USE RAISES A STRONG INFERENCE OF ARBITRARINESS. 
/13/  THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION
OF JUSTICE RECENTLY CONCLUDED:  /14/ 

     "FINALLY THERE IS EVIDENCE THAT THE IMPOSITION OF THE DEATH

SENTENCE AND THE EXERCISE OF DISPENSING POWER BY THE COURTS AND

  THE EXECUTIVE FOLLOW DISCRIMINATORY PATTERNS.  THE DEATH SENTENCE

  IS DISPROPORTIONATELY IMPOSED AND CARRIED OUT ON THE POOR, THE

  NEGRO, AND THE MEMBERS OF UNPOPULAR GROUPS." 

A STUDY OF CAPITAL CASES IN TEXAS FROM 1924 TO 1968 REACHED THE
FOLLOWING CONCLUSIONS:  /15/ 

     "APPLICATION OF THE DEATH PENALTY IS UNEQUAL:  MOST OF THOSE

  EXECUTED WERE POOR, YOUNG, AND IGNORANT. 

      "SEVENTY-FIVE OF THE 460 CASES INVOLVED CO-DEFENDANTS, WHO,

  UNDER TEXAS LAW, WERE GIVEN SEPARATE TRIALS.  IN SEVERAL

  INSTANCES WHERE A WHITE AND A NEGRO WERE CO-DEFENDANTS, THE WHITE

  WAS SENTENCED TO LIFE IMPRISONMENT OR A TERM OF YEARS, AND THE

  NEGRO WAS GIVEN THE DEATH PENALTY. 

     "ANOTHER ETHNIC DISPARITY IS FOUND IN THE TYPE OF SENTENCE

  IMPOSED FOR RAPE.  THE NEGRO CONVICTED OF RAPE IS FAR MORE LIKELY

  TO GET THE DEATH PENALTY THAN A TERM SENTENCE, WHEREAS WHITES AND

  LATINS ARE FAR MORE LIKELY TO GET A TERM SENTENCE THAN THE DEATH

  PENALTY." 

WARDEN LEWIS E. LAWES OF SING SING SAID:  /16/ 

     "NOT ONLY DOES CAPITAL PUNISHMENT FAIL IN ITS JUSTIFICATION,

  BUT NO PUNISHMENT COULD BE INVENTED WITH SO MANY INHERENT

DEFECTS.  IT IS AN UNEQUAL PUNISHMENT IN THE WAY IT IS APPLIED TO

  THE RICH AND TO THE POOR.  THE DEFENDANT OF WEALTH AND POSITION

  NEVER GOES TO THE ELECTRIC CHAIR OR TO THE GALLOWS.  JURIES DO

  NOT INTENTIONALLY FAVOUR THE RICH, THE LAW IS THEORETICALLY

  IMPARTIAL, BUT THE DEFENDANT WITH AMPLE MEANS IS ABLE TO HAVE HIS

  CASE PRESENTED WITH EVERY FAVOURABLE ASPECT, WHILE THE POOR

  DEFENDANT OFTEN HAS A LAWYER ASSIGNED BY THE COURT.  SOMETIMES

  SUCH ASSIGNMENT IS CONSIDERED PART OF POLITICAL PATRONAGE;

  USUALLY THE LAWYER ASSIGNED HAS HAD NO EXPERIENCE WHATEVER IN A

  CAPITAL CASE." 

FORMER ATTORNEY GENERAL RAMSEY CLARK HAS SAID, "IT IS THE POOR, THE
SICK, THE IGNORANT, THE POWERLESS AND THE HATED WHO ARE EXECUTED." 
/17/  ONE SEARCHES OUR CHRONICLES IN VAIN FOR THE EXECUTION OF ANY
MEMBER OF THE AFFLUENT STRATA OF THIS SOCIETY.  THE LEOPOLDS AND LOEBS
ARE GIVEN PRISON TERMS, NOT SENTENCED TO DEATH. 

JACKSON, A BLACK, CONVICTED OF THE RAPE OF A WHITE WOMAN, WAS 21
YEARS OLD.  A COURT-APPOINTED PSYCHIATRIST SAID THAT JACKSON WAS OF
AVERAGE EDUCATION AND AVERAGE INTELLIGENCE, THAT HE WAS NOT AN
IMBECILE, OR SCHIZOPHRENIC, OR PSYCHOTIC, THAT HIS TRAITS WERE THE
PRODUCT OF ENVIRONMENTAL INFLUENCES, AND THAT HE WAS COMPETENT TO STAND
TRIAL.  JACKSON HAD ENTERED THE HOUSE AFTER THE HUSBAND LEFT FOR WORK. 
HE HELD SCISSORS AGAINST THE NECK OF THE WIFE, DEMANDING MONEY.  SHE
COULD FIND NONE AND A STRUGGLE ENSUED FOR THE SCISSORS, A BATTLE WHICH
SHE LOST; AND SHE WAS THEN RAPED, JACKSON KEEPING THE SCISSORS PRESSED
AGAINST HER NECK.  WHILE THERE DID NOT APPEAR TO BE ANY LONG-TERM
TRAUMATIC IMPACT ON THE VICTIM, SHE WAS BRUISED AND ABRASED IN THE
STRUGGLE BUT WAS NOT HOSPITALIZED.  JACKSON WAS A CONVICT WHO HAD
ESCAPED FROM A WORK GANG IN THE AREA, A RESULT OF A THREE-YEAR SENTENCE
FOR AUTO THEFT.  HE WAS AT LARGE FOR THREE DAYS AND DURING THAT TIME
HAD COMMITTED SEVERAL OTHER OFFENSES-- BURGLARY, AUTO THEFT, AND
ASSAULT AND BATTERY. 

FURMAN, A BLACK, KILLED A HOUSEHOLDER WHILE SEEKING TO ENTER THE
HOME AT NIGHT.  FURMAN SHOT THE DECEASED THROUGH A CLOSED DOOR.  HE WAS
26 YEARS OLD AND HAD FINISHED THE SIXTH GRADE IN SCHOOL.  PENDING
TRIAL, HE WAS COMMITTED TO THE GEORGIA CENTRAL STATE HOSPITAL FOR A
PSYCHIATRIC EXAMINATION ON HIS PLEA OF INSANITY TENDERED BY COURT
APPOINTED COUNSEL.  THE SUPERINTENDENT REPORTED THAT A UNANIMOUS STAFF
DIAGNOSTIC CONFERENCE HAD CONCLUDED "THAT THIS PATIENT SHOULD RETAIN
HIS PRESENT DIAGNOSIS OF MENTAL DEFICIENCY, MILD TO MODERATE, WITH
PSYCHOTIC EPISODES ASSOCIATED WITH CONVULSIVE DISORDER."  THE
PHYSICIANS AGREED THAT "AT PRESENT THE PATIENT IS NOT PSYCHOTIC, BUT HE
IS NOT CAPABLE OF COOPERATING WITH HIS COUNSEL IN THE PREPARATION OF
HIS DEFENSE"; AND THE STAFF BELIEVED "THAT HE IS IN NEED OF FURTHER
PSYCHIATRIC HOSPITALIZATION AND TREATMENT." 

LATER, THE SUPERINTENDENT REPORTED THAT THE STAFF DIAGNOSIS WAS
MENTAL DEFICIENCY, MILD TO MODERATE, WITH PSYCHOTIC EPISODES ASSOCIATED
WITH CONVULSIVE DISORDER.  HE CONCLUDED, HOWEVER, THAT FURMAN WAS "NOT
PSYCHOTIC AT PRESENT, KNOWS RIGHT FROM WRONG AND IS ABLE TO COOPERATE
WITH HIS COUNSEL IN PREPARING HIS DEFENSE." 

BRANCH, A BLACK, ENTERED THE RURAL HOME OF A 65-YEAR OLD WIDOW, A
WHITE, WHILE SHE SLEPT AND RAPED HER, HOLDING HIS ARM AGAINST HER
THROAT.  THEREUPON HE DEMANDED MONEY AND FOR 30 MINUTES OR MORE THE
WIDOW SEARCHED FOR MONEY, FINDING LITTLE.  AS HE LEFT, JACKSON SAID IF
THE WIDOW TOLD ANYONE WHAT HAPPENED, HE WOULD RETURN AND KILL HER.  THE
RECORD IS BARREN OF ANY MEDICAL OR PSYCHIATRIC EVIDENCE SHOWING INJURY
TO HER AS A RESULT OF BRANCH'S ATTACK. 

HE HAD PREVIOUSLY BEEN CONVICTED OF FELONY THEFT AND FOUND TO BE A
BORDERLINE MENTAL DEFICIENT AND WELL BELOW THE AVERAGE IQ OF TEXAS
PRISON INMATES.  HE HAD THE EQUIVALENT OF FIVE AND A HALF YEARS OF
GRADE SCHOOL EDUCATION.  HE HAD A "DULL INTELLIGENCE" AND WAS IN THE
LOWEST FOURTH PERCENTILE OF HIS CLASS. 

WE CANNOT SAY FROM FACTS DISCLOSED IN THESE RECORDS THAT THESE
DEFENDANTS WERE SENTENCED TO DEATH BECAUSE THEY WERE BLACK.  YET OUR
TASK IS NOT RESTRICTED TO AN EFFORT TO DIVINE WHAT MOTIVES IMPELLED
THESE DEATH PENALTIES.  RATHER, WE DEAL WITH A SYSTEM OF LAW AND OF
JUSTICE THAT LEAVES TO THE UNCONTROLLED DISCRETION OF JUDGES OR JURIES
THE DETERMINATION WHETHER DEFENDANTS COMMITTING THESE CRIMES SHOULD DIE
OR BE IMPRISONED.  UNDER THESE LAWS NO STANDARDS GOVERN THE SELECTION
OF THE PENALTY.  PEOPLE LIVE OR DIE, DEPENDENT ON THE WHIM OF ONE MAN
OR OF 12. 

IRVING BRANT HAS GIVEN A DETAILED ACCOUNT OF THE BLOODY ASSIZES, THE
REIGN OF TERROR THAT OCCUPIED THE CLOSING YEARS OF THE RULE OF CHARLES
II AND THE OPENING YEARS OF THE REGIME OF JAMES II (THE LORD CHIEF
JUSTICE WAS GEORGE JEFFREYS): 

     "NOBODY KNOWS HOW MANY HUNDRED OF MEN, INNOCENT OR OF UNPROVED

  GUILT, JEFFREYS SENT TO THEIR DEATHS IN THE PSEUDO TRIALS THAT

  FOLLOWED MONMOUTH'S FEEBLE AND STUPID ATTEMPT TO SEIZE THE

  THRONE.  WHEN THE ORDEAL ENDED, SCORES HAD BEEN EXECUTED AND

  1,260 WERE AWAITING THE HANGMAN IN THREE COUNTIES.  TO BE ABSENT

  FROM HOME DURING THE UPRISING WAS EVIDENCE OF GUILT.  MERE DEATH

  WAS CONSIDERED MUCH TOO MILD FOR THE VILLAGERS AND FARMERS

  ROUNDED UP IN THESE RAIDS.  THE DIRECTIONS TO A HIGH SHERIFF WERE

TO PROVIDE AN AX, A CLEAVER, 'A FURNACE OR CAULDRON TO BOIL THEIR

  HEADS AND QUARTERS, AND SOIL TO BOIL THEREWITH, HALF A BUSHEL TO

  EACH TRAITOR, AND TAR TO TAR THEM WITH, AND A SUFFICIENT NUMBER

  OF SPEARS AND POLES TO FIX THEIR HEADS AND QUARTERS' ALONG THE

  HIGHWAYS.  ONE COULD HAVE CROSSED A GOOD PART OF NORTHERN ENGLAND

  BY THEIR GUIDANCE. 

     "THE STORY OF THE BLOODY ASSIZES, WIDELY KNOWN TO AMERICANS,

  HELPED TO PLACE CONSTITUTIONAL LIMITATIONS ON THE CRIME OF

  TREASON AND TO PRODUCE A BAR AGAINST CRUEL AND UNUSUAL

  PUNISHMENTS.  BUT IN THE POLEMICS THAT LED TO THE VARIOUS

  GUARANTEES OF FREEDOM, IT HAD NO PLACE COMPARED WITH THE

  TREMENDOUS THRUST OF THE TRIAL AND EXECUTION OF SIDNEY.  THE

  HUNDREDS OF JUDICIAL MURDERS COMMITTED BY JEFFREYS AND HIS FELLOW

  JUDGES WERE TOTALLY INCONCEIVABLE IN A FREE AMERICAN REPUBLIC,

  BUT ANY AMERICAN COULD IMAGINE HIMSELF IN SIDNEY'S PLACE--

  EXECUTED FOR PUTTING ON PAPER, IN HIS CLOSET, WORDS THAT LATER ON

  CAME TO EXPRESS THE BASIC PRINCIPLES OF REPUBLICAN GOVERNMENT. 

 UNLESS BARRED BY FUNDAMENTAL LAW, THE LEGAL RULINGS THAT

  PERMITTED THIS RESULT COULD EASILY BE EMPLOYED AGAINST ANY PERSON

  WHOSE POLITICAL OPINIONS CHALLENGED THE PARTY IN POWER."  THE

  BILL OF RIGHTS 154-155 (1965). 

THOSE WHO WROTE THE EIGHTH AMENDMENT KNEW WHAT PRICE THEIR FOREBEARS
HAD PAID FOR A SYSTEM BASED, NOT ON EQUAL JUSTICE, BUT ON
DISCRIMINATION.  IN THOSE DAYS THE TARGET WAS NOT THE BLACKS OR THE
POOR, BUT THE DISSENTORS, THOSE WHO OPPOSED ABSOLUTISM IN GOVERNMENT,
WHO STRUGGLED FOR A PARLIAMENTARY REGIME, AND WHO OPPOSED GOVERNMENTS'
RECURRING EFFORTS TO FOIST A PARTICULAR RELIGION ON THE PEOPLE.  ID.,
AT 155-163.  BUT THE TOOL OF CAPITAL PUNISHMENT WAS USED WITH VENGEANCE
AGAINST THE OPPOSITION AND THOSE UNPOPULAR WITH THE REGIME.  ONE CANNOT
READ THIS HISTORY WITHOUT REALIZING THAT THE DESIRE FOR EQUALITY WAS
REFLECTED IN THE BAN AGAINST "CRUEL AND UNUSUAL PUNISHMENTS" CONTAINED
IN THE EIGHTH AMENDMENT. 

IN A NATION COMMITTED TO EQUAL PROTECTION OF THE LAWS THERE IS NO
PERMISSIBLE "CASTE" ASPECT /18/  OF LAW ENFORCEMENT.  YET WE KNOW THAT
THE DISCRETION OF JUDGES AND JURIES IN IMPOSING THE DEATH PENALTY
ENABLES THE PENALTY TO BE SELECTIVELY APPLIED, FEEDING PREJUDICES
AGAINST THE ACCUSED IF HE IS POOR AND DESPISED, AND LACKING POLITICAL
CLOUT, OR IF HE IS A MEMBER OF A SUSPECT OR UNPOPULAR MINORITY, AND
SAVING THOSE WHO BY SOCIAL POSITION MAY BE IN A MORE PROTECTED
POSITION.  IN ANCIENT HINDU LAW A BRAHMAN WAS EXEMPT FROM CAPITAL
PUNISHMENT, /19/  AND UNDER THE LAW "(GENERALLY, IN THE LAW BOOKS,
PUNISHMENT INCREASED IN SEVERITY AS SOCIAL STATUS DIMINISHED."  /20/
WE HAVE, I FEAR, TAKEN IN PRACTICE THE SAME POSITION, PARTIALLY AS A
RESULT OF MAKING THE DEATH PENALTY DISCRETIONARY AND PARTIALLY AS A
RESULT OF THE ABILITY OF THE RICH TO PURCHASE THE SERVICES OF THE MOST
RESPECTED AND MOST RESOURCEFUL LEGAL TALENT IN THE NATION. 

THE HIGH SERVICE RENDERED BY THE "CRUEL AND UNUSUAL" PUNISHMENT
CLAUSE OF THE EIGHTH AMENDMENT IS TO REQUIRE LEGISLATURES TO WRITE
PENAL LAWS THAT ARE EVENHANDED, NONSELECTIVE, AND NONARBITRARY, AND TO
REQUIRE JUDGES TO SEE TO IT THAT GENERAL LAWS ARE NOT APPLIED SPARSELY,
SELECTIVELY, AND SPOTTILY TO UNPOPULAR GROUPS. 

A LAW THAT STATED THAT ANYONE MAKING MORE THAN $50,000 WOULD BE
EXEMPT FROM THE DEATH PENALTY WOULD PLAINLY FALL, AS WOULD A LAW THAT
IN TERMS SAID THAT BLACKS, THOSE WHO NEVER WENT BEYOND THE FIFTH GRADE
IN SCHOOL, THOSE WHO MADE LESS THAN $3,000 A YEAR, OR THOSE WHO WERE
UNPOPULAR OR UNSTABLE SHOULD BE THE ONLY PEOPLE EXECUTED.  A LAW WHICH
IN THE OVERALL VIEW REACHES THAT RESULT IN PRACTICE /21/  HAS NO MORE
SANCTITY THAN A LAW WHICH IN TERMS PROVIDES THE SAME. 

THUS, THESE DISCRETIONARY STATUTES ARE UNCONSTITUTIONAL IN THEIR
OPERATION.  THEY ARE PREGNANT WITH DISCRIMINATION AND DISCRIMINATION IS
AN INGREDIENT NOT COMPATIBLE WITH THE IDEA OF EQUAL PROTECTION OF THE
LAWS THAT IS IMPLICIT IN THE BAN ON "CRUEL AND UNUSUAL" PUNISHMENTS. 

ANY LAW WHICH IS NONDISCRIMINATORY ON ITS FACE MAY BE APPLIED IN
SUCH A WAY AS TO VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  YICK WO V. HOPKINS, 118 U.S. 356.  SUCH CONCEIVABLY MIGHT
BE THE FATE OF A MANDATORY DEATH PENALTY, WHERE EQUAL OR LESSER
SENTENCES WERE IMPOSED ON THE ELITE, A HARSHER ONE ON THE MINORITIES OR
MEMBERS OF THE LOWER CASTES.  WHETHER A MANDATORY DEATH PENALTY WOULD
OTHERWISE BE CONSTITUTIONAL IS A QUESTION I DO NOT REACH. 

I CONCUR IN THE JUDGMENTS OF THE COURT. 

/1/  THE OPINION OF THE SUPREME COURT OF GEORGIA AFFIRMING FURMAN'S
CONVICTION OF MURDER AND SENTENCE OF DEATH IS REPORTED IN 225 GA. 253,
167 S.E.2D 628, AND ITS OPINION AFFIRMING JACKSON'S CONVICTION OF RAPE
AND SENTENCE OF DEATH IS REPORTED IN 225 GA. 790, 171 S.E.2D 501.  THE
CONVICTION OF BRANCH OF RAPE AND THE SENTENCE OF DEATH WERE AFFIRMED BY
THE COURT OF CRIMINAL APPEALS OF TEXAS AND REPORTED IN 447 S.W.2D 932. 

/2/  GRANUCCI, "NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED:"  THE
ORIGINAL MEANING, 57 CALIF.L.REV.  839, 845-846 (1969). 

/3/  1 W.& M.,SESS.  2, C. 2; 8 ENGLISH HISTORICAL DOCUMENTS, 1660
1714, P. 122 (A. BROWNING ED. 1953). 

/4/  7 F.THORP, FEDERAL & STATE CONSTITUTIONS 3813 (1909). 

/5/  DELAWARE, MARYLAND, NEW HAMPSHIRE, NORTH CAROLINA,
MASSACHUSETTS, PENNSYLVANIA, AND SOUTH CAROLINA.  1 THORPE, SUPRA, N.
4, AT 569; 3 ID.,AT 1688, 1892; 4 ID.,AT 2457; 5 ID.,AT 2788, 3101; 6
ID.,AT 3264. 

/6/  SET OUT IN 1 U.S.C. XXXIX-XLI. 

/7/  1 ANNALS OF CONG. 754 (1789). 

/8/  "WHEN IN RESPECT OF ANY CLASS OF OFFENSES THE DIFFICULTY OF
OBTAINING CONVICTIONS IS AT ALL GENERAL IN ENGLAND, WE MAY HOLD IT AS
AN AXIOM, THAT THE LAW REQUIRES AMENDMENT.  SUCH CONDUCT IN JURIES IS
THE SILENT PROTEST OF THE PEOPLE AGAINST ITS UNDUE SEVERITY.  THIS WAS
STRONGLY EXEMPLIFIED IN THE CASE OF PROSECUTIONS FOR THE FORGERY OF
BANK-NOTES, WHEN IT WAS A CAPITAL FELONY.  IT WAS IN VAIN THAT THE
CHARGE WAS PROVED.  JURIES WOULD NOT CONDEMN MEN TO THE GALLOWS FOR AN
OFFENSE OF WHICH THE PUNISHMENT WAS OUT OF ALL PROPORTION TO THE CRIME;
AND AS THEY COULD NOT MITIGATE THE SENTENCE THEY BROUGHT IN VERDICTS OF
NOT GUILTY.  THE CONSEQUENCE WAS, THAT THE LAW WAS CHANGED; AND WHEN
SECONDARY PUNISHMENTS WERE SUBSTITUTED FOR THE PENALTY OF DEATH, A
FORGER HAD NO BETTER CHANCE OF AN ACQUITTAL THAN ANY OTHER CRIMINAL. 
THUS IT IS THAT THE POWER WHICH JURIES POSSESS OF REFUSING TO PUT THE
LAW IN FORCE HAS, IN THE WORDS IN LORD JOHN RUSSELL, 'BEEN THE CAUSE OF
AMENDING MANY BAD LAWS WHICH THE JUDGES WOULD HAVE ADMINISTERED WITH
PROFESSIONAL BIGOTRY, AND ABOVE ALL, IT HAS THIS IMPORTANT AND USEFUL
CONSEQUENCE, THAT LAWS TOTALLY REPUGNANT TO THE FEELINGS OF THE
COMMUNITY FOR WHICH THEY ARE MADE, CAN NOT LONG PREVAIL IN ENGLAND.'" 
W. FORSYTH, HISTORY OF TRIAL BY JURY 367-368 (2D ED. 1971).     /9/
THIS TREND WAS NOT UNIVERSALLY APPLAUDED.  IN THE EARLY 1800'S, ENGLAND
HAD A LAW THAT MADE IT POSSIBLE TO IMPOSE THE DEATH SENTENCE FOR
STEALING FIVE SHILLINGS OR MORE.  3 W.& M.,C. 9, SEC. 1.  WHEN A BILL
FOR ABOLISHING THAT PENALTY (FINALLY ENACTED IN 1827, 7 & 8 GEO. 4, C.
27) WAS BEFORE THE HOUSE OF LORDS IN 1813, LORD ELLENBOROUGH SAID: 

'IF YOUR LORDSHIPS LOOK TO THE PARTICULAR MEASURE NOW UNDER
CONSIDERATION, CAN IT, I ASK, BE SERIOUSLY MAINTAINED, THAT THE MOST
EXEMPLARY PUNISHMENT, AND THE BEST SUITED TO PREVENT THE COMMISSION OF
THIS CRIME, OUGHT NOT TO BE A PUNISHMENT WHICH MIGHT IN SOME CASES BE
INFLICTED?  HOW, BUT BY THE ENACTMENTS OF THE LAW NOW SOUGHT TO BE
REPEALED, ARE THE COTTAGES OF INDUSTRIOUS POVERTY PROTECTED?  WHAT
OTHER SECURITY HAS A POOR PEASANT, WHEN HE AND HIS WIFE LEAVE THEIR
HOME FOR THEIR DAILY LABOURS, THAT ON THEIR RETURN THEIR FEW ARTICLES
OF FURNITURE OR OF CLOTHES WHICH THEY POSSESS BESIDES THOSE WHICH THEY
CARRY ON THEIR BACKS, WILL BE SAFE?  . . . (BY THE ENACTING OF THE
PUNISHMENT OF DEATH, AND LEAVING IT TO THE DISCRETION OF THE CROWN TO
INFLICT THAT PUNISHMENT OR NOT, AS THE CIRCUMSTANCES OF THE CASE MAY
REQUIRE, I AM SATISFIED AND I AM MUCH MISTAKEN IF YOUR LORDSHIPS ARE
NOT SATISFIED, THAT THIS OBJECT IS ATTAINED WITH THE LEAST POSSIBLE
EXPENDITURE.  THAT THE LAW IS, AS IT HAS BEEN TERMED, A BLOODY LAW, I
CAN BY NO MEANS ADMIT.  CAN THERE BE A BETTER TEST THAN BY A
CONSIDERATION OF THE NUMBER OF PERSONS WHO HAVE BEEN EXECUTED FOR
OFFENSES OF THE DESCRIPTION CONTAINED IN THE PRESENT BILL?  YOUR
LORDSHIPS ARE TOLD, WHAT IS EXTREMELY TRUE, THAT THIS NUMBER IS VERY
SMALL; AND THIS VERY CIRCUMSTANCEE IS URGED AS A REASON FOR A REPEAL OF
THE LAW; BUT, BEFORE YOUR LORDSHIPS ARE INDUCED TO CONSENT TO SUCH
REPEAL, I BEG TO CALL TO YOUR CONSIDERATION THE NUMBER OF INNOCENT
PERSONS WHO MIGHT HAVE BEEN PLUNDERED OF THEIR PROPERTY OR DESTROYED BY
MIDNIGHT MURDERERS, IF THE LAW NOW SOUGHT TO BE REPEALED HAD NOT BEEN
IN EXISTENCE:-- A LAW UPON WHICH ALL THE RETAIL TRADE OF THIS
COMMERCIAL COUNTRY DEPENDS; AND WHICH I FOR ONE WILL NOT CONSENT TO BE
PUT IN JEOPARDY."  DEBATE IN HOUSE OF LORDS, APR. 2, 1813, PP. 23-24
(LONGMAN HURST, REES, ORME, & BROWN, PATERNOSTER-ROW, LONDON 1816). 

/10/  H.R. 3243, 92D CONG., 1ST SESS., INTRODUCED BY CONG. CELLER,
WOULD ABOLISH ALL EXECUTIONS BY THE UNITED STATES OR BY ANY STATE. 

H.R. 8414, 92D CONG., 1ST SESS., INTRODUCED BY CONG. CELLER, WOULD
PROVIDE AN INTERIM STAY OF ALL EXECUTIONS BY THE UNITED STATES OR BY
ANY STATE AND CONTAINS THE FOLLOWING PROPOSED FINDING: 

"CONGRESS HEREBY FINDS THAT THERE EXISTS SERIOUS QUESTION-- 

"(A) WHETHER THE INFLICTION OF THE DEATH PENALTY AMOUNTS TO CRUEL
AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION; AND 

"(B) WHETHER THE DEATH PENALTY IS INFLICTED DISCRIMINATORILY UPON
MEMBERS OF RACIAL MINORITIES, IN VIOLATION OF THE FOURTEENTH AMENDMENT
TO THE CONSTITUTION. 

"AND, IN EITHER CASE, WHETHER CONGRESS SHOULD EXERCISE ITS AUTHORITY
UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT TO PROHIBIT THE USE OF THE
DEATH PENALTY." 

THERE IS THE NAIVE VIEW THAT CAPITAL PUNISHMENT AS "METED OUT IN OUR
COURTS, IS THE ANTITHESIS OF BARBARISM."  SEE HENRY PAOLUCCI, NEW YORK
TIMES, MAY 27, 1972, P. 29, COL. 1.  BUT THE LEOPOLDS AND LOEBS, THE
HARRY THAWS, THE DR. SHEPPARDS AND THE DR. FINCHS OF OUR SOCIETY ARE
NEVER EXECUTED, ONLY THOSE IN THE LOWER STRATA, ONLY THOSE WHO ARE
MEMBERS OF AN UNPOPULAR MINORITY OR THE POOR AND DESPISED. 

/11/  THE TENSION BETWEEN OUR DECISION TODAY AND MCGAUTHA
HIGHLIGHTS, IN MY VIEW, THE CORRECTNESS OF MR. JUSTICE BRENNAN'S
DISSENT IN THAT CASE, WHICH I JOINED.  402 U.S.,AT 248.  I SHOULD THINK
THAT IF THE EIGHTH AND FOURTEENTH AMENDMENTS PROHIBIT THE IMPOSITION OF
THE DEATH PENALTY ON PETITIONERS BECAUSE THEY ARE "AMONG A CAPRICIOUSLY
SELECTED RANDOM HANDFUL UPON WHOM THE SENTENCE OF DEATH HAS IN FACT
BEEN IMPOSED," OPINION OF MR. JUSTICE STEWART, POST, AT 309-310, OR
BECAUSE "THERE IS NO MEANINGFUL BASIS FOR DISTINGUISHING THE FEW CASES
IN WHICH (THE DEATH PENALTY) IS IMPOSED FROM THE MANY CASES IN WHICH IT
IS NOT," OPINION OF MR. JUSTICE WHITE, POST, AT 313, STATEMENTS WITH
WHICH I AM IN COMPLETE AGREEMENT-- THEN THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT WOULD RENDER UNCONSTITUTIONAL "CAPITAL SENTENCING
PROCEDURES THAT ARE PURPOSELY CONSTRUCTED TO ALLOW THE MAXIMUM POSSIBLE
VARIATION FROM ONE CASE TO THE NEXT, AND (THAT) PROVIDE NO MECHANISM TO
PREVENT THAT CONSCIOUSLY MAXIMIZED VARIATION FROM REFLECTING MERELY
RANDOM OR ARBITRARY CHOICE."  MCGAUTHA V. CALIFORNIA, 402 U.S. 183, 248
(BRENNAN, J., DISSENTING). 

/12/  GOLDBERG & DERSHOWITZ, DECLARING THE DEATH PENALTY
UNCONSTITUTIONAL, 83 HARV.L.REV.  1773, 1790. 

/13/  ID., AT 1792. 

/14/  THE CHALLENGE OF CRIME IN A FREE SOCIETY 143 (1967). 

/15/  KOENINGER, CAPITAL PUNISHMENT IN TEXAS, 1924-1968, 15 CRIME &
DELIN.  132, 141 (1969). 

IN H. BEDAU, THE DEATH PENALTY IN AMERICA 474 (1967 REV. ED.), IT IS
STATED:

        RACE OF THE OFFENDER BY FINAL DISPOSITION 

     FINAL . . . NEGRO . . . WHITE . . . TOTAL 

     DISPOSITION . . . N % . . . N % . . . N % 

     EXECUTED . . . 130 88.4 . . . 210 79.8 . . . 340 82.9 

     COMMUTED . . . 17 11.6 . . . 53 20.2 . . . 70 17.1 

     TOTAL . . . 147 100.0 . . . 263 100.0 . . . 410 100.0 

X2 EQUALS 4.33; P LESS THAN .05.  (FOR DISCUSSION OF STATISTICAL
SYMBOLS, SEE BEDAU, SUPRA, AT 469.) 

"ALTHOUGH THERE MAY BE A HOST OF FACTORS OTHER THAN RACE INVOLVED IN
THIS FREQUENCY DISTRIBUTION, SOMETHING MORE THAN CHANCE HAS OPERATED
OVER THE YEARS TO PRODUCE THIS RACIAL DIFFERENCE.  ON THE BASIS OF THIS
STUDY IT IS NOT POSSIBLE TO INDICT THE JUDICIAL AND OTHER PUBLIC
PROCESSES PRIOR TO THE DEATH ROW AS RESPONSIBLE FOR THE ASSOCIATION
BETWEEN NEGROES AND HIGHER FREQUENCY OF EXECUTIONS; NOR IS IT ENTIRELY
CORRECT TO ASSUME THAT FROM THE TIME OF THEIR APPEARANCE ON DEATH ROW
NEGROES ARE DISCRIMINATED AGAINST BY THE PARDON BOARD.  TOO MANY
UNKNOWN OR PRESENTLY IMMEASURABLE FACTORS PREVENT OUR MAKING DEFINITIVE
STATEMENTS ABOUT THE RELATIONSHIP.  NEVERTHELESS, BECAUSE THE
NEGRO/HIGH-EXECUTION ASSOCIATION IS STATISTICALLY PRESENT, SOME
SUSPICION OF RACIAL DISCRIMINATION CAN HARDLY BE AVOIDED.  IF SUCH A
RELATIONSHIP HAD NOT APPEARED, THIS KIND OF SUSPICION COULD HAVE BEEN
ALLAYED; THE EXISTENCE OF THE RELATIONSHIP, ALTHOUGH NOT 'PROVING'
DIFFERENTIAL BIAS BY THE PARDON BOARDS OVER THE YEARS SINCE 1914,
STRONGLY SUGGEST THAT SUCH BASIS HAS EXISTED." 

THE LATTER WAS A STUDY IN PENNSYLVANIA OF PEOPLE ON DEATH ROW
BETWEEN 1914 AND 1958, MADE BY WOLFGANG, KELLY, & NOLDE AND PRINTED IN
53 J.CRIM.L.C.& P.S. 301 (1962).  AND SEE HARTUNG, TRENDS IN THE USE OF
CAPITAL PUNISHMENT, 284 ANNALS 8, 14-17 (1952). 

/16/  LIFE AND DEATH IN SING SING 155-160 (1928). 

/17/  CRIME IN AMERICA 335 (1970). 

/18/  SEE JOHNSON, THE NEGRO AND CRIME, 217 ANNALS 93 (1941). 

/19/  SEE J. SPELLMAN, POLITICAL THEORY OF ANCIENT INDIA 112
(1964). 

/20/  C. DREKMEIER, KINGSHIP AND COMMUNITY IN EARLY INDIA 233 (1962). 

/21/  CF. B. PRETTYMAN, J., DEATH AND THE SUPREME COURT 296-297
(1961). 

"THE DISPARITY OF REPRESENTATION IN CAPITAL CASES RAISES DOUBTS
ABOUT CAPITAL PUNISHMENT ITSELF, WHICH HAS BEEN ABOLISHED IN ONLY NINE
STATES.  IF A JAMES AVERY (345 U.S. 559) CAN BE SAVED FROM
ELECTROCUTION BECAUSE HIS ATTORNEY MADE TIMELY OBJECTION TO THE
SELECTION OF A JURY BY THE USE OF YELLOW AND WHITE TICKETS, WHILE AN
AUBREY WILLIAMS (349 U.S. 375) CAN BE SENT TO HIS DEATH BY A JURY
SELECTED IN PRECISELY THE SAME MANNER, WE ARE IMPOSING OUR MOST EXTREME
PENALTY IN AN UNEVEN FASHION. 

"THE PROBLEM OF PROPER REPRESENTATION IS NOT A PROBLEM OF MONEY, AS
SOME HAVE CLAIMED, BUT OF A LAWYERS' ABILITY, AND IT IS NOT TRUE THAT
ONLY THE RICH HAVE ABLE LAWYERS.  BOTH THE RICH AND THE POOR USUALLY
ARE WELL REPRESENTED-- THE POOR BECAUSE MORE OFTEN THAN NOT THE BEST
ATTORNEYS ARE APPOINTED TO DEFEND THEM.  IT IS THE MIDDLECLASS
DEFENDANT, WHO CAN AFFORD TO HIRE AN ATTORNEY BUT NOT A VERY GOOD ONE,
WHO IS AT A DISADVANTAGE.  CERTAINLY WILLIAM FIKES (352 U.S. 191),
DESPITE THE ANOMALOUS POSITION IN WHICH HE FINDS HIMSELF TODAY,
RECEIVED AS EFFECTIVE AND INTELLIGENT A DEFENSE FROM HIS COURT
APPOINTED ATTORNEYS AS HE WOULD HAVE RECEIVED FROM AN ATTORNEY HIS
FAMILY HAD SCRAPED TOGETHER ENOUGH MONEY TO HIRE. 

"AND IT IS NOT ONLY A MATTER OF ABILITY.  AN ATTORNEY MUST BE FOUND
WHO IS PREPARED TO SPEND PRECIOUS HOURS-- THE BASIC COMMODITY HE HAS TO
SELL-- ON A CASE THAT SELDOM FULLY COMPENSATES HIM AND OFTEN BRINGS HIM
NO FEE AT ALL.  THE PUBLIC HAS NO CONCEPTION OF THE TIME AND EFFORT
DEVOTED BY ATTORNEYS TO INDIGENT CASES.  AND IN A FIRST-DEGREE CASE,
THE ADDED RESPONSIBILITY OF HAVING A MAN'S LIFE DEPEND UPON THE OUTCOME
EXACTS A HEAVY TOLL." 

MR. JUSTICE BRENNAN, CONCURRING. 

THE QUESTION PRESENTED IN THESE CASES IS WHETHER DEATH IS TODAY A
PUNISHMENT FOR CRIME THAT IS "CRUEL AND UNUSUAL" AND CONSEQUENTLY, BY
VIRTUE OF THE EIGHTH AND FOURTEENTH AMENDMENTS, BEYOND THE POWER OF THE
STATE TO INFLICT.  /1/ 

ALMOST A CENTURY AGO, THIS COURT OBSERVED THAT "(DIFFICULTY WOULD
ATTEND THE EFFORT TO DEFINE WITH EXACTNESS THE EXTENT OF THE
CONSTITUTIONAL PROVISION WHICH PROVIDES THAT CRUEL AND UNUSUAL
PUNISHMENTS SHALL NOT BE INFLICTED."  WILKERSON V. UTAH, 99 U.S. 130,
135-136 (1879).  LESS THAN 15 YEARS AGO, IT WAS AGAIN NOTED THAT "(THE
EXACT SCOPE OF THE CONSTITUTIONAL PHRASE 'CRUEL AND UNUSUAL' HAS NOT
BEEN DETAILED BY THIS COURT."  TROP V. DULLES, 356 U.S. 86, 99 (1958). 
THOSE STATEMENTS REMAIN TRUE TODAY.  THE CRUEL AND UNUSUAL PUNISHMENTS
CLAUSE, LIKE THE OTHER GREAT CLAUSES OF THE CONSTITUTION, IS NOT
SUSCEPTIBLE OF PRECISE DEFINITION.  YET WE KNOW THAT THE VALUES AND
IDEALS IT EMBODIES ARE BASIC TO OUR SCHEME OF GOVERNMENT.  AND WE KNOW
ALSO THAT THE CLAUSE IMPOSES UPON THIS COURT THE DUTY, WHEN THE ISSUE
IS PROPERLY PRESENTED, TO DETERMINE THE CONSTITUTIONAL VALIDITY OF A
CHALLENGED PUNISHMENT, WHATEVER THAT PUNISHMENT MAY BE.  IN THESE
CASES, "(THAT ISSUE CONFRONTS US, AND THE TASK OF RESOLVING IT IS
INESCAPABLY OURS."  ID., AT 103. 

        I 

WE HAVE VERY LITTLE EVIDENCE OF THE FRAMERS' INTENT IN INCLUDING THE
CRUEL AND UNUSUAL PUNISHMENTS CLAUSE AMONG THOSE RESTRAINTS UPON THE
NEW GOVERNMENT ENUMERATED IN THE BILL OF RIGHTS.  THE ABSENCE OF SUCH A
RESTRAINT FROM THE BODY OF THE CONSTITUTION WAS ALLUDED TO, SO FAR AS
WE NOW KNOW, IN THE DEBATES OF ONLY TWO OF THE STATE RATIFYING
CONVENTIONS.  IN THE MASSACHUSETTS CONVENTION, MR. HOLMES PROTESTED: 

 "WHAT GIVES AN ADDITIONAL GLARE OF HORROR TO THESE GLOOMY

  CIRCUMSTANCES IS THE CONSIDERATION, THAT CONGRESS HAVE TO

  ASCERTAIN, POINT OUT, AND DETERMINE, WHAT KIND OF PUNISHMENTS

  SHALL BE INFLICTED ON PERSONS CONVICTED OF CRIMES.  THEY ARE

  NOWHERE RESTRAINED FROM INVENTING THE MOST CRUEL AND UNHEARD-OF

  PUNISHMENTS, AND ANNEXING THEM TO CRIMES; AND THERE IS NO

  CONSTITUTIONAL CHECK ON THEM, BUT THAT RACKS AND GIBBETS MAY BE

  AMONGST THE MOST MILD INSTRUMENTS OF THEIR DISCIPLINE."  2

  J.ELLIOT'S DEBATES 111 (2D ED. 1876). 

HOLMES' FEAR THAT CONGRESS WOULD HAVE UNLIMITED POWER TO PRESCRIBE
PUNISHMENTS FOR CRIMES WAS ECHOED BY PATRICK HENRY AT THE VIRGINIA
CONVENTION: 

" . . . CONGRESS, FROM THEIR GENERAL POWERS, MAY FULLY GO INTO
BUSINESS OF HUMAN LEGISLATION.  THEY MAY LEGISLATE, IN CRIMINAL CASES,
FROM TREASON TO THE LOWEST OFFENSE-- PETTY LARCENY.  THEY MAY DEFINE
CRIMES AND PRESCRIBE PUNISHMENTS.  IN THE DEFINITION OF CRIMES, I TRUST
THEY WILL BE DIRECTED BY WHAT WISE RESPRESENTATIVES OUGHT TO BE
GOVERNED BY.  BUT WHEN WE COME TO PUNISHMENTS, NO LATITUDE OUGHT TO BE
LEFT, NOR DEPENDENCE PUT ON THE VIRTUE OF REPRESENTATIVES.  WHAT SAYS
OUR (VIRGINIA) BILL OF RIGHTS?-- 'THAT EXCESSIVE BAIL OUGHT NOT TO BE
REQUIRED, NOR EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL
PUNISHMENTS INFLICTED.'  ARE YOU NOT, THEREFORE, NOW CALLING ON THOSE
GENTLEMEN WHO ARE TO COMPOSE CONGRESS TO . . . DEFINE PUNISHMENTS
WITHOUT THIS CONTROL?  WILL THEY FIND SENTIMENTS THERE SIMILAR TO THIS
BILL OF RIGHTS?  YOU LET THEM LOOSE; YOU DO MORE-- YOU DEPART FROM THE
GENIUS OF YOUR COUNTRY.  . . . 

     "IN THIS BUSINESS OF LEGISLATION, YOUR MEMBERS OF CONGRESS
WILL

  LOOSE THE RESTRICTION OF NOT IMPOSING EXCESSIVE FINES, DEMANDING

  EXCESSIVE BAIL, AND INFLICTING CRUEL AND UNUSUAL PUNISHMENTS. 

  THESE ARE PROHIBITED BY YOUR (VIRGINIA) DECLARATION OF RIGHTS. 

  WHAT HAS DISTINGUISHED OUR ANCESTORS?-- THAT THEY WOULD NOT ADMIT

  OF TORTURES, OR CRUEL AND BARBAROUS PUNISHMENT."  3 ID.,AT 447. 

  /2/ 

THESE TWO STATEMENTS SHED SOME LIGHT ON WHAT THE FRAMERS MEANT BY
"CRUEL AND UNUSUAL PUNISHMENTS."  HOLMES REFERRED TO "THE MOST CRUEL
AND UNHEARD-OF-PUNISHMENTS," HENRY TO "TORTURES, OR CRUEL AND BARBAROUS
PUNISHMENT."  IT DOES NOT FOLLOW, HOWEVER, THAT THE FRAMERS WERE
EXCLUSIVELY CONCERNED WITH PROHIBITING TORTUROUS PUNISHMENTS.  HOLMES
AND HENRY WERE OBJECTING TO THE ABSENCE OF A BILL OF RIGHTS, AND THEY
CITED TO SUPPORT THEIR OBJECTIONS THE UNRESTRAINED LEGISLATIVE POUER TO
PRESCRIBE PUNISHMENTS FOR CRIMES.  CERTAINLY WE MAY SUPPOSE THAT THEY
INVOKED THE SPECTER OF THE MOST DRASTIC PUNISHMENTS A LEGISLATURE MIGHT
DEVISE. 

IN ADDITION, IT IS QUITE CLEAR THAT HOLMES AND HENRY FOCUSED WHOLLY
UPON THE NECESSITY TO RESTRAIN THE LEGISLATIVE POWER.  BECAUSE THEY
RECOGNIZED "THAT CONGRESS HAVE TO ASCERTAIN, POINT OUT, AND DETERMINE,
WHAT KINDS OF PUNISHMENTS SHALL BE INFLICTED ON PERSONS CONVICTED OF
CRIMES," THEY INSISTED THAT CONGRESS MUST BE LIMITED IN ITS POWER TO
PUNISH.  ACCORDINGLY, THEY CALLED FOR A "CONSTITUTIONAL CHECK" THAT
WOULD ENSURE THAT "WHEN WE COME TO PUNISHMENTS, NO LATITUDE OUGHT TO BE
LEFT, NOR DEPENDENCE PUT ON THE VIRTUE OF REPRESENTATIVES."  /3/ 
THE ONLY FURTHER EVIDENCE OF THE FRAMERS' INTENT APPEARS FROM THE
DEBATES IN THE FIRST CONGRESS ON THE ADOPTION OF THE BILL OF RIGHTS. 
/4/  AS THE COURT NOTED IN WEEMS V. UNITED STATES, 217 U.S. 349, 368
(1919), THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE "RECEIVED VERY LITTLE
DEBATE."  THE EXTENT OF THE DISCUSSION, BY TWO OPPONENTS OF THE CLAUSE
IN THE HOUSE OF REPRESENTATIVES, WAS THIS: 

     "MR. SMITH, OF SOUTH CAROLINA, OBJECTED TO THE WORDS 'NOR
CRUEL

  AND UNUSUAL PUNISHMENTS;' THE IMPORT OF THEM BEING TOO

  INDEFINITE. 

     "MR. LIVERMORE.-- THE (EIGHTH AMENDMENT) SEEMS TO EXPRESS A

  GREAT DEAL OF HUMANITY, ON WHICH ACCOUNT I HAVE NO OBJECTION TO

  IT; BUT AS IT SEEMS TO HAVE NO MEANING IN IT, I DO NOT THINK IT

  NECESSARY.  . . . NO CRUEL AND UNUSUAL PUNISHMENT IS TO BE

  INFLICTED; IT IS SOMETIMES NECESSARY TO HANG A MAN, VILLAINS

  OFTEN DESERVE WHIPPING, AND PERHAPS HAVING THEIR EARS CUT OFF;

  BUT ARE WE IN FUTURE TO BE PREVENTED FROM INFLICTING THESE

  PUNISHMENTS BECAUSE THEY ARE CRUEL?  IF A MORE LENIENT MODE OF

  CORRECTING VICE AND DETERRING OTHERS FROM THE COMMISSION OF IT

  COULD BE INVENTED, IT WOULD BE VERY PRUDENT IN THE LEGISLATURE TO

  ADOPT IT; BUT UNTIL WE HAVE SOME SECURITY THAT THIS WILL BE DONE,

WE OUGHT NOT TO BE RESTRAINED FROM MAKING NECESSARY LAWS BY ANY

  DECLARATION OF THIS KIND. 

     "THE QUESTION WAS PUT ON THE (EIGHTH AMENDMENT), AND IT WAS

  AGREED TO BY A CONSIDERABLE MAJORITY."  1 ANNALS OF CONG. 754

  (1789).  /5/ 

LIVERMORE THUS AGREED WITH HOLMES AND HENRY THAT THE CRUEL AND
UNUSUAL PUNISHMENTS CLAUSE IMPOSED A LIMITATION UPON THE LEGISLATIVE
POWER TO PRESCRIBE PUNISHMENTS.  HOWEVER, IN CONTRAST TO HOLMES AND
HENRY, WHO WERE SUPPORTING THE CLAUSE, LIVERMORE, OPPOSING IT, DID NOT
REFER TO PUNISHMENTS THAT WERE CONSIDERED BARBAROUS AND TORTUROUS. 
INSTEAD, HE OBJECTED THAT THE CLAUSE MIGHT SOMEDAY PREVENT THE
LEGISLATURE FROM INFLICTING WHAT WERE THEN QUITE COMMON AND, IN HIS
VIEW, "NECESSARY" PUNISHMENTS-- DEATH, WHIPPING, AND EARCROPPING.  /6/
THE ONLY INFERENCE TO BE DRAWN FROM LIVERMORE'S STATEMENT IS THAT THE
"CONSIDERABLE MAJORITY" WAS PREPARED TO RUN THAT RISK.  NO MEMBER OF
THE HOUSE ROSE TO REPLY THAT THE CLAUSE WAS INTENDED MERLY TO PROHIBIT
TORTURE. 

SEVERAL CONCLUSIONS THUS EMERGE FROM THE HISTORY OF THE ADOPTION OF
THE CLAUSE.  WE KNOW THAT THE FRAMERS' CONCERN WAS DIRECTED
SPECIFICALLY AT THE EXERCISE OF LEGISLATIVE POWER.  THEY INCLUDED IN
THE BILL OF RIGHTS A PROHIBITION UPON "CRUEL AND UNUSUAL PUNISHMENTS"
PRECISELY BECAUSE THE LEGISLATURE WOULD OTHERWISE HAVE HAD THE
UNFETTERED POWER TO PRESCRIBE PUNISHMENTS FOR CRIMES.  YET WE CANNOT
NOW KNOW EXACTLY WHAT THE FRAMERS THOUGHT "CRUEL AND UNUSUAL
PUNISHMENTS" WERE.  CERTAINLY THEY INTENDED TO BAN TORTUROUS
PUNISHMENTS, BUT THE AVAILABLE EVIDENCE DOES NOT SUPPORT THE FURTHER
CONCLUSION THAT ONLY TORTUROUS PUNISHMENTS WERE TO BE OUTLAWED.  AS
LIVERMORE'S COMMENTS DEMONSTRATE, THE FRAMERS WERE WELL AWARE THAT THE
REACH OF THE CLAUSE WAS NOT LIMITED TO THE PROSCRIPTION OF UNSPEAKABLE
ATROCITIES.  NOR DID THEY INTEND SIMPLY TO FORBID PUNISHMENTS
CONSIDERED "CRUEL AND UNUSUAL" AT THE TIME.  THE "IMPORT" OF THE CLAUSE
IS, INDEED, "INDEFINITE," AND FOR GOOD REASON.  A CONSTITUTIONAL
PROVISION "IS ENACTED, IT IS TRUE, FROM AN EXPERIENCE OF EVILS, BUT ITS
GENERAL LANGUAGE SHOULD NOT, THEREFORE, BE NECESSARILY CONFINED TO THE
FORM THAT EVIL HAD THERETOFORE TAKEN.  TIME WORKS CHANGES, BRINGS INTO
EXISTENCE NEW CONDITIONS AND PURPOSES.  THEREFORE A PRINCIPLE TO BE
VITAL MUST BE CAPABLE OF WIDER APPLICATION THAN THE MISCHIEF WHICH GAVE
IT BIRTH."  WEEMS V. UNITED STATES, 217 U.S.,AT 373. 

IT WAS ALMOST 80 YEARS BEFORE THIS COURT HAD OCCASION TO REFER TO
THE CLAUSE.  SEE PERVEAR V. THE COMMONWEALTH, 5 WALL.  475, 479-480
(1867).  THESE EARLY CASES, AS THE COURT POINTED OUT IN WEEMS V. UNITED
STATES, SUPRA, AT 369, DID NOT UNDERTAKE TO PROVIDE "AN EXHAUSTIVE
DEFINITION" OF "CRUEL AND UNUSUAL PUNISHMENTS."  MOST OF THEM PROCEEDED
PRIMARILY BY "LOOKING BACKWARDS FOR EXAMPLES BY WHICH TO FIX THE
MEANING OF THE CLAUSE," ID., AT 377, CONCLUDING SIMPLY THAT A
PUNISHMENT WOULD BE "CRUEL AND UNUSUAL" IF IT WERE SIMILAR TO
PUNISHMENTS CONSIDERED "CRUEL AND UNUSUAL" AT THE TIME THE BILL OF
RIGHTS WAS ADOPTED.  /7/  IN WILKERSON V. UTAH, 99 U.S.,AT 136, FOR
INSTANCE, THE COURT FOUND IT "SAFE TO AFFIRM THAT PUNISHMENTS OF
TORTURE . . . AND ALL OTHERS IN THE SAME LINE OF UNNECESSARY CRUELTY,
ARE FORBIDDEN."  THE "PUNISHMENTS OF TORTURE," WHICH THE COURT LABELED
"ATROCITIES," WERE CASES WHERE THE CRIMINAL "WAS EMBOWELLED ALIVE,
BEHEADED, AND QUARTERED," AND CASES "OF PUBLIC DISSECTION . . . AND
BURNING ALIVE."  ID., AT 135.  SIMILARLY, IN IN RE KEMMLER, 136 U.S.
436, 446 (1890), THE COURT DECLARED THAT "IF THE PUNISHMENT PRESCRIBED
FOR AN OFFENSE AGAINST THE LAWS OF THE STATE WERE MANIFESTLY CRUEL AND
UNUSUAL, AS BURNING AT THE STAKE, CRUCIFIXION, BREAKING ON THE WHEEL,
OR THE LIKE IT, IT WOULD BE THE DUTY OF THE COURTS TO ADJUDGE SUCH
PENALTIES TO BE WITHIN THE CONSTITUTIONAL PROHIBITION."  THE COURT THEN
OBSERVED, COMMENTING UPON THE PASSAGE JUST QUOTED FROM WILKERSON V.
UTAH, SUPRA, AND APPLYING THE "MANIFESTLY CRUEL AND UNUSUAL" TEST, THAT
"(PUNISHMENTS ARE CRUEL WHEN THEY INVOLVE TORTURE OR A LINGERING DEATH;
BUT THE PUNISHMENT OF DEATH IS NOT CRUEL, WITHIN THE MEANING OF THAT
WORD AS USED IN THE CONSTITUTION.  IT IMPLIES THERE SOMETHING INHUMAN
AND BARBAROUS, SOMETHING MORE THAN THE MERE EXTINGUISHMENT OF LIFE." 
136 U.S.,AT 447. 

HAD THIS "HISTORICAL" INTERPRETATION OF THE CRUEL AND UNUSUAL
PUNISHMENTS CLAUSE PREVAILED, THE CLAUSE WOULD HAVE BEEN EFFECTIVELY
READ OUT OF THE BILL OF RIGHTS.  AS THE COURT NOTED IN WEEMS V. UNITED
STATES, SUPRA, AT 371, THIS INTERPRETATION LED STORY TO CONCLUDE "THAT
THE PROVISION 'WOULD SEEM TO BE WHOLLY UNNECESSARY IN A FREE
GOVERNMENT, SINCE IT IS SCARELY POSSIBLE THAT ANY DEPARTMENT OF SUCH A
GOVERNMENT SHOULD AUTHORIZE OR JUSTIFY SUCH ATROCIOUS CONDUCT.'"  AND
COOLEY IN HIS BOOK, CONSTITUTIONAL LIMITATIONS, SAID THE COURT,
"APPARENTLY IN A STRUGGLE BETWEEN THE EFFECT TO BE GIVEN TO ANCIENT
EXAMPLES AND THE INCONSEQUENCE OF A DREAD OF THEM IN THESE ENLIGHTENED
TIMES, . . . HESITATED) TO ADVANCE DEFINITE VIEWS."  ID., AT 375.  THE
RESULT OF A JUDICIAL APPLICATION OF THIS INTERPRETATION WAS NOT
SURPRISING.  A STATE COURT, FOR EXAMPLE, UPHELD THE CONSTITUTIONALITY
OF THE WHIPPING POST:  "IN COMPARISON WITH THE 'BARBARITIES OF
QUARTERING, HANGING IN CHAINS, CASTRATION, ETC.,' IT WAS EASILY REDUCED
TO INSIGNIFICANCE."  ID., AT 377. 

BUT THIS COURT IN WEEMS DECISIVELY REPUDIATED THE "HISTORICAL"
INTERPRETATION OF THE CLAUSE.  THE COURT, RETURNING TO THE INTENTION OF
THE FRAMERS, "RELIED) ON THE CONDITIONS WHICH EXISTED WHEN THE
CONSTITUTION WAS ADOPTED."  AND THE FRAMERS KNEW "THAT GOVERNMENT BY
THE PEOPLE INSTITUTED BY THE CONSTITUTION WOULD NOT IMITATE THE CONDUCT
OF ARBITRARY MONARCHS.  THE ABUSE OF POWER MIGHT, INDEED, BE
APPREHENDED, BUT NOT THAT IT WOULD BE MANIFESTED IN PROVISIONS OR
PRACTICES WHICH WOULD STOCK THE SENSIBILITIES OF MEN."  ID., AT 375. 
THE CLAUSE, THEN, GUARDS AGAINST "(THE ABUSE OF POWER"; CONTRARY TO THE
IMPLICATIONS IN WILKERSON V. UTAH, SUPRA, AND IN RE KEMMLER, SUPRA, THE
PROHIBITION OF THE CLAUSE IS NOT "CONFINED) . . . TO SUCH PENALTIES AND
PUNISHMENT AS WERE INFLICTED BY THE STUARTS."  217 U.S.,AT 372. 
ALTHOUGH OPPONENTS OF THE BILL OF RIGHTS "FELT SURE THAT THE SPIRIT OF
LIBERTY COULD BE TRUSTED, AND THAT ITS IDEALS WOULD BE REPRESENTED, NOT
DEBASED, BY LEGISLATION,"  IBID., THE FRAMERS DISAGREED: 

"(PATRICK) HENRY AND THOSE WHO BELIEVED AS HE DID WOULD TAKE NO
CHANCES.  THEIR PREDOMINANT POLITICAL IMPULSE WAS DISTRUST OF POWER,
AND THEY INSISTED ON CONSTITUTIONAL LIMITATIONS AGAINST ITS ABUSE.  BUT
SURELY THEY INTENDED MORE THAN TO REGISTER A FEAR OF THE FORMS OF ABUSE
THAT WENT OUT OF PRACTICE WITH THE STUARTS.  SURELY, THEIR (JEALOUSLY)
OF POWER HAD A SANER JUSTIFICATION THAN THAT.  THEY WERE MEN OF ACTION,
PRACTICAL AND SAGACIOUS, NOT BEAST WITH VAIN IMAGINING, AND IT MUST
HAVE COME TO THEM THAT THERE COULD BE EXERCISES OF CRUELTY BY LAWS
OTHER THAN THOSE WHICH INFLICTED BODILY PAIN OR MULTILATION.  WITH
POWER IN A LEGISLATURE GREAT, IF NOT UNLIMITED, TO GIVE CRIMINAL
CHARACTER TO THE ACTIONS OF MEN, WITH POWER UNLIMITED TO FIX TERMS OF
IMPRISONMENT WITH WHAT ACCOMPANIMENTS THEY MIGHT, WHAT MORE POTENT
INSTRUMENT OF CRUELTY COULD BE PUT INTO THE HANDS OF POWER?  AND IT WAS
BELIEVED THAT POWER MIGHT BE TEMPTED TO CRUELTY.  THIS WAS THE MOTIVE
OF THE CLAUSE, AND IF WE ARE TO ATTRIBUTE AN INTELLIGENT PROVIDENCE TO
ITS ADVOCATES WE CANNOT THINK THAT IT WAS INTENDED TO PROHIBIT ONLY
PRACTICES LIKE THE (STUART'S,) OR TO PREVENT ONLY AN EXACT REPETITION
OF HISTORY.  WE CANNOT THINK THAT THE POSSIBILITY OF A COERCIVE CRUELTY
BEING EXERCISED THROUGH OTHER FORMS OF PUNISHMENT WAS OVERLOOKED." 
ID., AT 372-373. 

THE COURT IN WEEMS THUS RECOGNIZED THAT THIS "RESTRAINT UPON
LEGISLATURES" POSSESSES AS "EXPANSIVE AND VITAL CHARACTER" THAT IS
"ESSENTIAL . . . TO THE RULE OF LAW AND THE MAINTENANCE OF INDIVIDUAL
FREEDOM.'"  ID., AT 376-377.  ACCORDINGLY, THE RESPONSIBILITY LIES WITH
THE COURTS TO MAKE CERTAIN THAT THE PROHIBITION OF THE CLAUSE IS
ENFORCED.  /8/  REFERRING TO CASES IN WHICH "PROMINENCE (WAS) GIVEN TO
THE POWER OF THE LEGISLATURE TO DEFINE CRIMES AND THEIR PUNISHMENT,"
THE COURT SAID: 

"WE CONCEDE THE POWER IN MOST OF ITS EXERCISES.  WE DISCLAIM THE
RIGHT TO ASSERT A JUDGMENT AGAINST THAT OF THE LEGISLATURE OF THE
EXPEDIENCY OF THE LAWS OR THE RIGHT TO OPPOSE THE JUDICIAL POWER TO THE
LEGISLATIVE POWER TO DEFINE CRIMES AND FIX THEIR PUNISHMENT, UNLESS
THAT POWER ENCOUNTERS IN ITS EXERCISE A CONSTITUTIONAL PROHIBITION.  IN
SUCH CASE NOT OUR DISCRETION BUT OUR LEGAL DUTY, STRICTLY DEFINED AND
IMPERATIVE IN ITS DIRECTION, IS INVOKED."  ID., AT 378.  /9/ 

IN SHORT, THIS COURT FINALLY ADOPTED THE FRAMERS' VIEW OF THE CLAUSE
AS A "CONSTITUTIONAL CHECK" TO ENSURE THAT "WHEN WE COME TO
PUNISHMENTS, NO LATITUDE OUGHT TO BE LEFT, NOR DEPENDENCE PUT ON THE
VIRTUE OF REPRESENTATIVES."  THAT, INDEED, IS THE ONLY VIEW CONSONANT
WITH OUR CONSTITUTIONAL FORM OF GOVERNMENT.  IF THE JUDICIAL CONCLUSION
THAT A PUNISHMENT IS "CRUEL AND UNUSUAL" "DEPENDED) UPON VIRTUALLY
UNANIMOUS CONDEMNATION OF THE PENALTY AT ISSUE," THEN, "(LIKE NO OTHER
CONSTITUTIONAL PROVISION, (THE CLAUSE'S) ONLY FUNCTION WOULD BE TO
LEGITIMIZE ADVANCES ALREADY MADE BY THE OTHER DEPARTMENTS AND OPINIONS
ALREADY THE CONVENTIONAL WISDOM."  WE KNOW THAT THE FRAMERS DID NOT
ENVISION "SO NARROW A ROLE FOR THIS BASIC GUARANTY OF HUMAN RIGHTS." 
GOLDBERG & DERSHOWITZ, DECLARING THE DEATH PENALTY UNCONSTITUTIONAL, 83
HARV.L.REV.  1773, 1782 (1907).  THE RIGHT TO BE FREE OF CRUEL AND
UNUSUAL PUNISHMENTS, LIKE THE OTHER GUARANTEES OF THE BILL OF RIGHTS,
"MAY NOT BE SUBMITTED TO VOTE; (IT) DEPENDS) ON THE OUTCOME OF NO
ELECTIONS."  "THE VERY PURPOSE OF A BILL OF RIGHTS WAS TO WITHDRAW
CERTAIN SUBJECTS FROM THE VICISSITUDES OF POLITICAL CONTROVERSY, TO
PLACE THEM BEYOND THE REACH OF MAJORITIES AND OFFICIALS AND TO
ESTABLISH THEM AS LEGAL PRINCIPLES TO BE APPLIED BY THE COURTS."  BOARD
OF EDUCATION V. BARNETTE, 319 U.S. 624, 638 (1943). 

JUDICIAL ENFORCEMENT OF THE CLAUSE, THEN, CANNOT BE EVADED BY
INVOKING THE OBVIOUS TRUTH THAT LEGISLATURES HAVE THE POWER TO
PRESCRIBE PUNISHMENTS FOR CRIMES.  THAT IS PRECISELY THE REASON THE
CLAUSE APPEARS IN THE BILL OF RIGHTS.  THE DIFFICULTY ARISES, RATHER,
IN FORMULATING THE "LEGAL PRINCIPLES TO BE APPLIED BY THE COURTS" WHEN
A LEGISLATIVELY PRESCRIBED PUNISHMENT IS CHALLENGED AS "CRUEL AND
UNUSUAL."  IN FORMULATING THOSE CONSTITUTIONAL PRINCIPLES, WE MUST
AVOID THE INSERTION OF "JUDICIAL CONCEPTIONS) OF . . . WISDOM OR
PROPRIETY," WEEMS V. UNITED STATES, 217 U.S.,AT 379, YET WE MUST NOT,
IN THE GUISE OF "JUDICIAL RESTRAINT," ABDICATE OUR FUNDAMENTAL
RESPONSIBILITY TO ENFORCE THE BILL OF RIGHTS.  WERE WE TO DO SO, THE
"CONSTITUTION WOULD INDEED BE AS EASY OF APPLICATION AS IT WOULD BE
DEFICIENT IN EFFICACY AND POWER.  ITS GENERAL PRINCIPLES WOULD HAVE
LITTLE VALUE AND BE CONVERTED BY PRECEDENT INTO IMPOTENT AND LIFELESS
FORMULAS.  RIGHTS DECLARED IN WORDS MIGHT BE LOST IN REALITY."  ID., AT
373.  THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE WOULD BECOME, IN SHORT,
"LITTLE MORE THAN GOOD ADVICE."  TROP V. DULLES, 356 U.S.,AT 104. 

        II 

OURS WOULD INDEED BE A SIMPLE TASK WERE WE REQUIRED MERELY TO
MEASURE A CHALLENGED PUNISHMENT AGAINST THOSE THAT HISTORY HAS LONG
CONDEMNED.  THAT NARROW AND UNWARRANTED VIEW OF THE CLAUSE, HOWEVER,
WAS LEFT BEHIND WITH THE 19TH CENTURY.  OUR TASK TODAY IS MORE
COMPLEX.  WE KNOW "THAT THE WORDS OF THE (CLAUSE) ARE NOT PRECISE, AND
THAT THEIR SCOPE IS NOT STATIC."  WE KNOW, THEREFORE, THAT THE CLAUSE
"MUST DRAW ITS MEANING FROM THE EVOLVING STANDARDS OF DECENCY THAT MARK
THE PROGRESS OF A MATURING SOCIETY."  ID., AT 100-101.  /10/  THAT
KNOWLEDGE, OF COURSE, IS BUT THE BEGINNING OF THE INQUIRY. 

IN TROP V. DULLES, SUPRA, AT 99, IT WAS SAID THAT "(THE QUESTION IS
WHETHER (A) PENALTY SUBJECTS THE INDIVIDUAL TO A FATE FORBIDDEN BY THE
PRINCIPLE OF CIVILIZED TREATMENT GUARANTEED BY THE (CLAUSE)."  IT WAS
ALSO SAID THAT A CHALLENGED PUNISHMENT MUST BE EXAMINED "IN LIGHT OF
THE BASIC PROHIBITION AGAINST INHUMAN TREATMENT" EMBODIED IN THE
CLAUSE.  ID., AT 100 N. 32.  IT WAS SAID, FINALLY THAT:     "THE BASIC
CONCEPT UNDERLYING THE (CLAUSE) IS NOTHING LESS THAN THE DIGNITY OF
MAN.  WHILE THE STATE HAS THE POWER TO PUNISH, THE (CLAUSE) STANDS TO
ASSURE THAT THIS POWER BE EXERCISED WITHIN THE LIMITS OF CIVILIZED
STANDARDS."  ID., AT 100.  AT BOTTOM, THEN, THE CRUEL AND UNUSUAL
PUNISHMENTS CLAUSE PROHIBITS THE INFLICTION OF UNCIVILIZED AND INHUMAN
PUNISHMENTS.  THE STATE, EVEN AS IT PUNISHES, MUST TREAT ITS MEMBERS
WITH RESPECT FOR THEIR INTRINSIC WORTH AS HUMAN BEINGS.  A PUNISHMENT
IS "CRUEL AND UNUSUAL," THEREFORE, IF IT DOES NOT COMPORT WITH HUMAN
DIGNITY.     THIS FORMULATION, OF COURSE, DOES NOT OF ITSELF YIELD
PRINCIPLES FOR ASSESSING THE CONSTITUTIONAL VALIDITY OF PARTICULAR
PUNISHMENTS.  NEVERTHELESS, EVEN THOUGH "(THIS COURT HAS HAD LITTLE
OCCASION TO GIVE PRECISE CONTENT TO THE (CLAUSE)," IBID., THERE ARE
PRINCIPLES RECOGNIZED IN OUR CASES AND INHERENT IN THE CLAUSE
SUFFICIENT TO PERMIT A JUDICIAL DETERMINATION WHETHER A CHALLENGED
PUNISHMENT COMPORTS WITH HUMAN DIGNITY. 

THE PRIMARY PRINCIPLE IS THAT A PUNISHMENT MUST NOT BE SO SEVERE AS TO
BE DEGRADING TO THE DIGNITY OF HUMAN BEINGS.  PAIN, CERTAINLY, MAY BE A
FACTOR IN THE JUDGMENT.  THE INFLICTION OF AN EXTREMELY SEVERE
PUNISHMENT WILL OFTEN ENTAIL PHYSICAL SUFFERING.  SEE WEEMS V. UNITED
STATES, 217 U.S.,AT 366.  /11/  YET THE FRAMERS ALSO KNEW "THAT THERE
COULD BE EXERCISES OF CRUELTY BY LAWS OTHER THAN THOSE WHICH INFLICTED
BODILY PAIN OR MUTILATION."  ID., AT 372.  EVEN THOUGH "(THERE MAY BE
INVOLVED NO PHYSICAL MISTREATMENT, NO PRIMITIVE TORTURE," TROP V.
DULLES, SUPRA, AT 101, SEVERE MENTAL PAIN MAY BE INHERENT IN THE
INFLICTION OF A PARTICULAR PUNISHMENT.  SEE WEEMS V. UNITED STATES,
SUPRA, AT 366.  /12/  THAT, INDEED, WAS ONE OF THE CONCLUSIONS
UNDERLYING THE HOLDING OF THE PLURALITY IN TROP V. DULLES THAT THE
PUNISHMENT OF EXPATRIATION VIOLATES THE CLAUSE.  /13/  AND THE PHYSICAL
AND MENTAL SUFFERING INHERENT IN THE PUNISHMENT OF CADENA TEMPORAL, SEE
NN. 11-12, SUPRA, WAS AN OBVIOUS BASIS FOR THE COURT'S DECISION IN
WEEMS V. UNITED STATES THAT THE PUNISHMENT WAS "CRUEL AND UNUSUAL." 
/14/ 

MORE THAN THE PRESENCE OF PAIN, HOWEVER, IS COMPREHENDED IN THE
JUDGMENT THAT THE EXTREME SEVERITY OF A PUNISHMENT MAKES IT DEGRADING
TO THE DIGNITY OF HUMAN BEINGS.  THE BARBARIC PUNISHMENTS CONDEMNED BY
HISTORY, "PUNISHMENTS WHICH INFLICT TORTURE, SUCH AS THE RACK, THE
THUMBSCREW, THE IRON BOOT, THE STRETCHING OF LIMBS AND THE LIKE," ARE,
OF COURSE, "ATTENDED WITH ACUTE PAIN AND SUFFERING."  O'NEIL V.
VERMONT, 144 U.S. 323, 339 (1892) (FIELD, J., DISSENTING).  WHEN WE
CONSIDER WHY THEY HAVE BEEN CONDEMNED, HOWEVER, WE REALIZE THAT THE
PAIN INVOLVED IS NOT THE ONLY REASON.  THE TRUE SIGNIFICANCE OF THESE
PUNISHMENTS IS THAT THEY TREAT MEMBERS OF THE HUMAN RACE AS NONHUMANS,
AS OBJECTS TO BE TOYED WITH AND DISCARDED.  THEY ARE THUS INCONSISTENT
WITH THE FUNDAMENTAL PREMISE OF THE CLAUSE THAT EVEN THE VILEST
CRIMINAL REMAINS A HUMAN BEING POSSESSED OF COMMON HUMAN DIGNITY. 

THE INFLICTION OF AN EXTREMELY SEVERE PUNISHMENT, THEN, LIKE THE ONE
BEFORE THE COURT IN WEEMS V. UNITED STATES, FROM WHICH "(NO
CIRCUMSTANCES OF DEGRADATION (WAS) OMITTED," 217 U.S.,AT 366, MAY
REFLECT THE ATTITUDE THAT THE PERSON PUNISHED IS NOT ENTITLED TO
RECOGNITION AS A FELLOW HUMAN BEING.  THAT ATTITUDE MAY BE APPARENT
APART FROM THE SEVERITY OF THE PUNISHMENT ITSELF.  IN LOUISIANA EX REL.
FRANCIS V. RESWEBER, 329 U.S. 459, 464 (1947), FOR EXAMPLE, THE
UNSUCCESSFUL ELECTROCUTION, ALTHOUGH IT CAUSED "MENTAL ANGUISH AND
PHYSICAL PAIN," WAS THE RESULT OF "AN UNFORESEEABLE ACCIDENT."  HAD THE
FAILURE BEEN INTENTIONAL, HOWEVER, THE PUNISHMENT WOULD HAVE BEEN, LIKE
TORTURE, SO DEGRADING AND INDECENT AS TO AMOUNT TO A REFUSAL TO ACCORD
THE CRIMINAL HUMAN STATUS.  INDEED, A PUNISHMENT MAY BE DEGRADING TO
HUMAN DIGNITY SOLELY BECAUSE IT IS A PUNISHMENT.  A STATE MAY NOT
PUNISH A PERSON FOR BEING "MENTALLY ILL, OR A LEPER, OR . . . AFFLICTED
WITH A VENEREAL DISEASE," OR FOR BEING ADDICTED TO NARCOTICS.  ROBINSON
V. CALIFORNIA, 370 U.S. 660, 666 (1962).  TO INFLICT PUNISHMENT FOR
HAVING A DISEASE IS TO TREAT THE INDIVIDUAL AS A DISEASED THING RATHER
THAN AS A SICK HUMAN BEING.  THAT THE PUNISHMENT IS NOT SEVERE, "IN THE
ABSTRACT," IS IRRELEVANT; "(EVEN ONE DAY IN PRISON WOULD BE A CRUEL AND
UNUSUAL PUNISHMENT FOR THE 'CRIME' OF HAVING A COMMON COLD."  ID., AT
667.  FINALLY, OF COURSE, A PUNISHMENT MAY BE DEGRADING SIMPLY BY
REASON OF ITS ENORMITY.  A PRIME EXAMPLE IS EXPATRIATION, A "PUNISHMENT
MORE PRIMITIVE THAN TORTURE," TROP V. DULLES, 356 U.S.,AT 101, FOR IT
NECESSARILY INVOLVES A DENIAL BY SOCIETY OF THE INDIVIDUAL'S EXISTENCE
AS A MEMBER OF THE HUMAN COMMUNITY.  /15/ 

IN DETERMINING WHETHER A PUNISHMENT COMPORTS WITH HUMAN DIGNITY, WE
ARE AIDED ALSO BY A SECOND PRINCIPLE INHERENT IN THE CLAUSE-- THAT THE
STATE MUST NOT ARBITRARILY INFLICT A SEVERE PUNISHMENT.  THIS PRINCIPLE
DERIVES FROM THE NOTION THAT THE STATE DOES NOT RESPECT HUMAN DIGNITY
WHEN, WITHOUT REASON, IT INFLICTS UPON SOME PEOPLE A SEVERE PUNISHMENT
THAT IT DOES NOT INFLICT UPON OTHERS.  INDEED, THE VERY WORDS "CRUEL
AND UNUSUAL PUNISHMENTS" IMPLY CONDEMNATION OF THE ARBITRARY INFLICTION
OF SEVERE PUNISHMENTS.  AND, AS WE NOW KNOW, THE ENGLISH HISTORY OF THE
CLAUSE /16/  REVEALS A PARTICULAR CONCERN WITH THE ESTABLISHMENT OF A
SAFEGUARD AGAINST ARBITRARY PUNISHMENTS.  SEE GRANUCCI, "NOR CRUEL AND
UNUSUAL PUNISHMENTS INFLICTED:"  THE ORIGINAL MEANING, 57 CALIF.L.REV. 
839, 857-860 (1969).  /17/ 

THIS PRINCIPLE HAS BEEN RECOGNIZED IN OUR CASES.  /18/  IN WILKERSON
V. UTAH, 99 U.S.,AT 133-134, THE COURT REVIEWED VARIOUS TREATIES ON
MILITARY LAW IN ORDER TO DEMONSTRATE THAT UNDER "THE CUSTOM OF WAR"
SHOOTING WAS A COMMON METHOD OF INFLICTING THE PUNISHMENT OF DEATH.  ON
THAT BASIS, THE COURT CONCLUDED: 

     "CRUEL AND UNUSUAL PUNISHMENTS ARE FORBIDDEN BY THE

  CONSTITUTION, BUT THE AUTHORITIES REFERRED TO (TREATIES ON

  MILITARY LAW) ARE QUITE SUFFICIENT TO SHOW THAT THE PUNISHMENT OF

  SHOOTING AS A MODE OF EXECUTING THE DEATH PENALTY FOR THE CRIME

  OF MURDER IN THE FIRST DEGREE IS NOT INCLUDED IN THAT CATEGORY,

  WITHIN THE MEANING OF THE (CLAUSE).  SOLDIERS CONVICTED OF

  DESERTION OR OTHER CAPITAL MILITARY OFFENSES ARE IN THE GREAT

  MAJORITY OF CASES SENTENCED TO BE SHOT, AND THE CEREMONY FOR SUCH

  OCCASIONS IS GIVEN IN GREAT FULNESS BY THE WRITERS UPON THE

  SUBJECT OF COURTS-MARTIAL."  ID., AT 134-135. 

THE COURT THUS UPHELD DEATH BY SHOOTING, SO FAR AS APPEARS, SOLELY ON
THE GROUND THAT IT WAS A COMMON METHOD OF EXECUTION.  /19/ 

AS WILKERSON V. UTAH SUGGESTS, WHEN A SEVERE PUNISHMENT IS INFLICTED
"IN THE GREAT MAJORITY OF CASES" IN WHICH IT IS LEGALLY AVAILABLE,
THERE IS LITTLE LIKELIHOOD THAT THE STATE IS INFLICTING IT
ARBITRARILY.  IF, HOWEVER, THE INFLICTION OF A SEVERE PUNISHMENT IS
"SOMETHING DIFFERENT FROM THAT WHICH IS GENERALLY DONE" IN SUCH CASES,
TROP V. DULLES, 356 U.S.,AT 101 N. 32, /20/  THERE IS A SUBSTANTIAL
LIKELIHOOD THAT THE STATE, CONTRARY TO THE REQUIREMENTS OF REGULARITY
AND FAIRNESS EMBODIED IN THE CLAUSE, IS INFLICTING THE PUNISHMENT
ARBITRARILY.  THIS PRINCIPLE IS ESPECIALLY IMPORTANT TODAY.  THERE IS
SCANT DANGER, GIVEN THE POLITICAL PROCESSES "IN AN ENLIGHTENED
DEMOCRACY SUCH AS OURS," ID., AT 100, THAT EXTREMELY SEVERE PUNISHMENTS
WILL BE WIDELY APPLIED.  THE MORE SIGNIFICANCE FUNCTION OF THE CLAUSE,
THEREFORE, IS TO PROTECT AGAINST THE DANGER OF THEIR ARBITRARY
INFLICTION. 

A THIRD PRINCIPLE INHERENT IN THE CLAUSE IS THAT A SEVERE PUNISHMENT
MUST NOT BE UNACCEPTABLE TO CONTEMPORARY SOCIETY.  REJECTION BY
SOCIETY, OF COURSE, IS A STRONG INDICATION THAT A SEVERE PUNISHMENT
DOES NOT COMPORT WITH HUMAN DIGNITY.  IN APPLYING THIS PRINCIPLE,
HOWEVER, WE MUST MAKE CERTAIN THAT THE JUDICIAL DETERMINATION IS AS
OBJECTIVE AS POSSIBLE.  /21/  THUS, FOR EXAMPLE, WEEMS V. UNITED
STATES, 217 U.S.,AT 380, AND TROP V. DULLES, 356 U.S.,AT 102-103,
SUGGEST THAT ONE FACTOR THAT MAY BE CONSIDERED IS THE EXISTENCE OF THE
PUNISHMENT IN JURISDICTIONS OTHER THAN THOSE BEFORE THE COURT. 
WILKERSON V. UTAH, SUPRA, SUGGESTS THAT ANOTHER FACTOR TO BE CONSIDERED
IS THE HISTORIC USAGE OF THE PUNISHMENT.  /22/  TROP V. DULLES, SUPRA,
AT 99, COMBINED PRESENT ACCEPTANCE WITH PAST USAGE BY OBSERVING THAT
"THE DEATH PENALTY HAS BEEN EMPLOYED THROUGHOUT OUR HISTORY, AND, IN A
DAY WHEN IT IS STILL WIDELY ACCEPTED, IT CANNOT BE SAID TO VIOLATE THE
CONSTITUTIONAL CONCEPT OF CRUELTY."  IN ROBINSON V. CALIFORNIA, 370
U.S.,AT 666, WHICH INVOLVED THE INFLICTION OF PUNISHMENT FOR NARCOTICS
ADDICTION, THE COURT WENT A STEP FURTHER, CONCLUDING SIMPLY THAT "IN
THE LIGHT OF CONTEMPORARY HUMAN KNOWLEDGE, A LAW WHICH MADE A CRIMINAL
OFFENSE OF SUCH A DISEASE WOULD DOUBTLESS BE UNIVERSALLY THOUGHT TO BE
AN INFLICTION OF CRUEL AND UNUSUAL PUNISHMENT." 

THE QUESTION UNDER THIS PRINCIPLE, THEN, IS WHETHER THERE ARE
OBJECTIVE INDICATORS FROM WHICH A COURT CAN CONCLUDE THAT CONTEMPORARY
SOCIETY CONSIDERS A SEVERE PUNISHMENT UNACCEPTABLE.  ACCORDINGLY, THE
JUDICIAL TASK IS TO REVIEW THE HISTORY OF A CHALLENGED PUNISHMENT AND
TO EXAMINE SOCIETY'S PRESENT PRACTICES WITH RESPECT TO ITS USE. 
LEGISLATIVE AUTHORIZATION, OF COURSE, DOES NOT ESTABLISH ACCEPTANCE. 
THE ACCEPTABILITY OF A SEVERE PUNISHMENT IS MEASURED, NOT BY ITS
AVAILABILITY, FOR IT MIGHT BECOME SO OFFENSIVE TO SOCIETY AS NEVER TO
BE INFLICTED, BUT BY ITS USE. 

THE FINAL PRINCIPLE INHERENT IN THE CLAUSE IS THAT A SEVERE
PUNISHMENT MUST NOT BE EXCESSIVE.  A PUNISHMENT IS EXCESSIVE UNDER THIS
PRINCIPLE IF IT IS UNNECESSARY:  THE INFLICTION OF A SEVERE PUNISHMENT
BY THE STATE CANNOT COMPORT WITH HUMAN DIGNITY WHEN IT IS NOTHING MORE
THAN THE POINTLESS INFLICTION OF SUFFERING.  IF THERE IS A
SIGNIFICANTLY LESS SEVERE PUNISHMENT ADEQUATE TO ACHIEVE THE PURPOSES
FOR WHICH THE PUNISHMENT IS INFLICTED, CF. ROBINSON V. CALIFORNIA,
SUPRA, AT 666; ID., AT 677 (DOUGLAS, J., CONCURRING); TROP V. DULLES,
SUPRA, AT 114 (BRENNAN, J., CONCURRING), THE PUNISHMENT INFLICTED IS
UNNECESSARY AND THEREFORE EXCESSIVE. 

THIS PRINCIPLE FIRST APPEARED IN OUR CASES IN MR. JUSTICE FIELD'S
DISSENT IN O'NEIL V. VERMONT, 144 U.S.,AT 337.  /23/  HE THERE TOOK THE
POSITION THAT: 

"(THE CLAUSE) IS DIRECTED, NOT ONLY AGAINST PUNISHMENTS OF THE
CHARACTER MENTIONED (TORTUROUS PUNISHMENTS), BUT AGAINST ALL
PUNISHMENTS WHICH BY THEIR EXCESSIVE LENGTH OR SEVERITY ARE GREATLY
DISPROPORTIONED TO THE OFFENSES CHARGED.  THE WHOLE INHIBITION IS
AGAINST THAT WHICH IS EXCESSIVE EITHER IN THE BAIL REQUIRED, OR FINE
IMPOSED, OR PUNISHMENT INFLICTED."  ID., AT 339-340.  ALTHOUGH THE
DETERMINATION THAT A SEVERE PUNISHMENT IS EXCESSIVE MAY BE GROUNDED IN
A JUDGMENT THAT IT IS DISPROPORTIONATE TO THE CRIME, /24/  THE MORE
SIGNIFICANT BASIS IS THAT THE PUNISHMENT SERVES NO PENAL PURPOSE MORE
EFFECTIVELY THAN A LESS SEVERE PUNISHMENT.  THIS VIEW OF THE PRINCIPLE
WAS EXPLICITY RECOGNIZED BY THE COURT IN WEEMS V. UNITED STATES, SUPRA.
THERE THE COURT, REVIEWING A SEVERE PUNISHMENT INFLICTED FOR THE
FALSIFICATION OF AN OFFICIAL RECORD, FOUND THAT "THE HIGHEST PUNISHMENT
POSSIBLE FOR A CRIME WHICH MAY CAUSE THE LOSS OF MANY THOUSANDS) OF
DOLLARS, AND TO PREVENT WHICH THE DUTY OF THE STATE SHOULD BE AS EAGER
AS TO PREVENT THE PERVERSIONS OF TRUTH IN A PUBLIC DOCUMENT, IS NOT
GREATER THAN THAT WHICH MAY BE IMPOSED FOR FALSIFYING A SINGLE ITEM OF
A PUBLIC ACCOUNT."  ID., AT 381.  STATING THAT "THIS CONTRAST SHOWS
MORE THAN DIFFERENT EXERCISES OF LEGISLATIVE JUDGMENT,"  THE COURT
CONCLUDED THAT THE PUNISHMENT WAS UNNECESSARILY SEVERE IN VIEW OF THE
PURPOSES FOR WHICH IT WAS IMPOSED.  IBID.  /25/  SEE ALSO TROP V.
DULLES, 356 U.S.,AT 111-112 (BRENNAN, J., CONCURRING.)  /26/ 

THERE ARE, THEN, FOUR PRINCIPLES BY WHICH WE MAY DETERMINE WHETHER A
PARTICULAR PUNISHMENT IS "CRUEL AND UNUSUAL."  THE PRIMARY PRINCIPLE,
WHICH I BELIEVE SUPPLIES THE ESSENTIAL PREDICATE FOR THE APPLICATION OF
THE OTHERS, IS THAT A PUNISHMENT MUST NOT BY ITS SEVERITY BE DEGRADING
TO HUMAN DIGNITY.  THE PARADIGM VIOLATION OF THIS PRINCIPLE WOULD BE
THE INFLICTION OF A TORTUROUS PUNISHMENT OF THE TYPE THAT THE CLAUSE
HAS ALWAYS PROHIBITED.  YET "(IIT IS UNLIKELY THAT ANY STATE AT THIS
MOMENT IN HISTORY," ROBINSON V. CALIFORNIA, 370 U.S.,AT 666, WOULD PASS
A LAW PROVIDING FOR THE INFLICTION OF SUCH A PUNISHMENT.  INDEED, NO
SUCH PUNISHMENT HAS EVER BEEN BEFORE THIS COURT.  THE SAME MAY BE SAID
OF THE OTHER PRINCIPLES.  IT IS UNLIKELY THAT THIS COURT WILL CONFRONT
A SEVERE PUNISHMENT THAT IS OBVIOUSLY INFLICTED IN WHOLLY ARBITRARY
FASHION; NO STATE WOULD ENGAGE IN A REIGN OF BLIND TERROR.  NOR IS IT
LIKELY THAT THIS COURT WILL BE CALLED UPON TO REVIEW A SEVERE
PUNISHMENT THAT IS CLEARLY AND TOTALLY REJECTED THROUGHOUT SOCIETY; NO
LEGISLATURE WOULD BE ABLE EVEN TO AUTHORIZE THE INFLICTION OF SUCH A
PUNISHMENT.  NOR, FINALLY, IT IS LIKELY THAT THIS COURT WILL HAVE TO
CONSIDER A SEVERE PUNISHMENT THAT IS PARTENTLY UNNECESSARY; NO STATE
TODAY WOULD INFLICT A SEVERE PUNISHMENT KNOWING THAT THERE WAS NO
REASON WHATEVER FOR DOING SO.  IN SHORT, WE ARE UNLIKELY TO HAVE
OCCASION TO DETERMINE THAT A PUNISHMENT IS FATALLY OFFENSIVE UNDER ANY
ONE PRINCIPLE. 

SINCE THE BILL OF RIGHTS WAS ADOPTED, THIS COURT HAS ADJUDGED ONLY
THREE PUNISHMENTS TO BE WITHIN THE PROHIBITION OF THE CLAUSE.  SEE
WEEMS V. UNITED STATES, 217 U.S. 349 (1910) (12 YEARS IN CHAINS AT HARD
AND PAINFUL LABOR); TROP V. DULLES, 356 U.S. 86 (1958) (EXPATRIATION);
ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962) (IMPRISONMENT FOR NARCOTICS
ADDICTION).  EACH PUNISHMENT, OF COURSE, WAS DEGRADING TO HUMAN
DIGNITY, BUT OF NONE COULD IT BE SAID CONCLUSIVELY THAT IT WAS FATALLY
OFFENSIVE UNDER THE ONE OR THE OTHER OF THE PRINCIPLES.  RATHER, THESE
"CRUEL AND UNUSUAL PUNISHMENTS"  SERIOUSLY IMPLICATED SEVERAL OF THE
PRINCIPLES, AND IT WAS THE APPLICATION OF THE PRINCIPLES IN COMBINATION
THAT SUPPORTED THE JUDGMENT.  THAT, INDEED, IS NOT SURPRISING.  THE
FUNCTION OF THESE PRINCIPLES, AFTER ALL, IS SIMPLY TO PROVIDE MEANS BY
WHICH A COURT CAN DETERMINE WHETHER A CHALLENGED PUNISHMENT COMPORTS
WITH HUMAN DIGNITY.  THEY ARE, THEREFORE, INTERRELATED, AND IN MOST
CASES IT WILL BE THEIR CONVERGENCE THAT WILL JUSTIFY THE CONCLUSION
THAT A PUNISHMENT IS "CRUEL AND UNUSUAL."  THE TEST, THEN, WILL
ORDINARILY BE A CUMULATIVE ONE:  IF A PUNISHMENT IS UNUSUALLY SEVERE,
IF THERE IS A STRONG PROBABILITY THAT IT IS INFLICTED ARBITRARILY, IF
IT IS SUBSTANTIALLY REJECTED BY CONTEMPORARY SOCIETY, AND IF THERE IS
NO REASON TO BELIEVE THAT IT SERVES ANY PENAL PURPOSE MORE EFFECTIVELY
THAN SOME LESS SERVERE PUNISHMENT, THEN THE CONTINUED INFLICTION OF
THAT PUNISHMENT VIOLATES THE COMMAND OF THE CLAUSE THAT THE STATE MAY
NOT INFLICT INHUMAN AND UNCIVILIZED PUNISHMENTS UPON THOSE CONVICTED OF
CRIMES. 

  III 

THE PUNISHMENT CHALLENGED IN THESE CASES IS DEATH.  DEATH, OF
COURSE, IS A "TRADITIONAL" PUNISHMENT, TROP V. DULLES, SUPRA, AT 100,
ONE THAT "HAS BEEN EMPLOYED THROUGHOUT OUR HISTORY," ID., AT 99, AND
ITS CONSTITUTIONAL BACKGROUND IS ACCORDINGLY AN APPROPRIATE SUBJECT OF
INQUIRY. 

THERE IS, FIRST, A TEXTUAL CONSIDERATION RAISED BY THE BILL OF
RIGHTS ITSELF.  THE FIFTH AMENDMENT DECLARES THAT IF A PARTICULAR CRIME
IS PUNISHABLE BY DEATH, A PERSON CHARGED WITH THAT CRIME IS ENTITLED TO
CERTAIN PROCEDURAL PROTECTIONS.  /27/  WE CAN THUS INFER THAT THE
FRAMERS RECOGNIZED THE EXISTENCE OF WHAT WAS THEN A COMMON PUNISHMENT. 
WE CANNOT, HOWEVER, MAKE THE FURTHER INFERENCE THAT THEY INTENDED TO
EXEMPT THIS PARTICULAR PUNISHMENT FROM THE EXPRESS PROHIBITION OF THE
CRUEL AND UNUSUAL PUNISHMENT CLAUSE.  /28/  NOR IS THERE ANY INDICATION
IN THE DEBATES OF THE CLAUSE THAT A SPECIAL EXCEPTION WAS TO BE MADE
FOR DEATH.  IF ANYTHING, THE INDICATION IS TO THE CONTRARY, FOR
LIVERMORE SPECIFICALLY MENTIONED DEATH AS A CANDIDATE FOR FUTURE
PROSCRIPTION UNDER THE CLAUSE.  SEE SUPRA, AT 262.  FINALLY, IT DOES
NOT ADVANCE ANALYSIS TO INSIST THAT THE FRAMERS DID NOT BELIEVE THAT
ADOPTION OF THE BILL OF RIGHTS WOULD IMMEDIATELY PREVENT THE INFLICTION
OF THE PUNISHMENT OF DEATH; NEITHER DID THEY BELIEVE THAT IT WOULD
IMMEDIATELY PREVENT THE INFLICTION OF OTHER CORPORAL PUNISHMENTS THAT,
ALTHOUGH COMMON AT THE TIME, SEE N. 6, SUPRA, ARE NOW ACKNOWLEDGED TO
BE IMPERMISSIBLE.  /29/ 

THERE IS ALSO THE CONSIDERATION THAT THIS COURT HAS DECIDED THREE
CASES INVOLVING CONSTITUTIONAL CHALLENGES TO PARTICULAR METHODS OF
INFLICTING THIS PUNISHMENT.  IN WILKERSON V. UTAH, 99 U.S. 130 (1879),
AND IN RE KEMMLER, 136 U.S. 436 (1890), THE COURT, EXPRESSING IN BOTH
CASES THE SINCE-REJECTED "HISTORICAL" VIEW OF THE CLAUSE, SEE SUPRA, AT
264-265, APPROVED DEATH BY SHOOTING AND DEATH BY ELECTROCUTION.  IN
WILKERSON, THE COURT CONCLUDED THAT SHOOTING WAS A COMMON METHOD OF
EXECUTION, SEE SUPRA, AT 275-276; /30/  IN KEMMLER, THE COURT HELD THAT
THE CLAUSE DID NOT APPLY TO THE STATES, 136 U.S.,AT 447-449.  /31/  IN
LOUISIANA EX REL. FRANCIS V. RESWEBER, SUPRA, THE COURT APPROVED A
SECOND ATTEMPT AT ELECTROCUTION AFTER THE FIRST HAD FAILED.  IT WAS
SAID THAT "(THE FOURTEENTH (AMENDMENT) WOULD PROHIBIT BY ITS DUE
PROCESS CLAUSE EXECUTION BY A STATE IN A CRUEL MANNER," 329 U.S.,AT
463, BUT THAT THE ABORTIVE ATTEMPT DID NOT MAKE THE "SUBSEQUENT
EXECUTION ANY MORE CRUEL IN THE CONSTITUTIONAL SENSE THAN ANY OTHER
EXECUTION," ID., AT 464.  /32/  THESE THREE DECISIONS THUS REVEAL THAT
THE COURT, WHILE RULING UPON VARIOUS METHODS OF INFLICTING DEATH, HAS
ASSUMED IN THE PAST THAT DEATH WAS A CONSTITUTIONALLY PERMISSIBLE
PUNISHMENT.  /33/  PAST ASSUMPTIONS, HOWEVER, ARE NOT SUFFICIENT TO
LIMIT THE SCOPE OF OUR EXAMINATION OF THIS PUNISHMENT TODAY.  THE
CONSTITUTIONALITY OF DEATH ITSELF UNDER THE CRUEL AND UNUSUAL
PUNISHMENTS CLAUSE IS BEFORE THIS COURT FOR THE FIRST TIME; WE CANNOT
AVOID THE QUESTION BY RECALLING PAST CASES THAT NEVER DIRECTLY
CONSIDERED IT. 

THE QUESTION, THEN, IS WHETHER THE DELIBERATE INFLICTION OF DEATH IS
TODAY CONSISTENT WITH THE COMMAND OF THE CLAUSE THAT THE STATE MAY NOT
INFLICT PUNISHMENTS THAT DO NOT COMPORT WITH HUMAN DIGNITY.  I WILL
ANALYZE THE PUNISHMENT OF DEATH IN TERMS OF THE PRINCIPLES SET OUT
ABOVE AND THE CUMULATIVE TEST TO WHICH THEY LEAD:  IT IS A DENIAL OF
HUMAN DIGNITY FOR THE STATE ARBITRARILY TO SUBJECT A PERSON TO AN
UNUSUALLY SEVERE PUNISHMENT THAT SOCIETY HAS INDICATED IT DOES NOT
REGARD AS ACCEPTABLE, AND THAT CANNOT BE SHOWN TO SERVE ANY PENAL
PURPOSE MORE EFFECTIVELY THAN A SIGNIFICANTLY LESS DRASTIC PUNISHMENT. 
UNDER THESE PRINCIPLES AND THIS TEST, DEATH IS TODAY A "CRUEL AND
UNUSUAL" PUNISHMENT. 

DEATH IS A UNIQUE PUNISHMENT IN THE UNITED STATES.  IN A SOCIETY
THAT SO STRONGLY AFFIRMS THE SANCTITY OF LIFE, NOT SURPRISINGLY THE
COMMON VIEW IS THAT DEATH IS THE ULTIMATE SANCTION.  THIS NATURAL HUMAN
FEELING APPEARS ALL ABOUT US.  THERE HAS BEEN NO NATIONAL DEBATE ABOUT
PUNISHMENT, IN GENERAL OR BY IMPRISONMENT, COMPARABLE TO THE DEBATE
ABOUT THE PUNISHMENT OF DEATH.  NO OTHER PUNISHMENT HAS BEEN SO
CONTINUOUSLY RESTRICTED, SEE INFRA, AT 296-298, NOR HAS ANY STATE YET
ABOLISHED PRISONS, AS SOME HAVE ABOLISHED THIS PUNISHMENT.  AND THOSE
STATES THAT STILL INFLICT DEATH RESERVE IT FOR THE MOST HEINOUS
CRIMES.  JURIES, OF COURSE, HAVE ALWAYS TREATED DEATH CASES
DIFFERENTLY, AS HAVE GOVERNORS EXERCISING THEIR COMMUTATION POWERS. 
CRIMINAL DEFENDANTS ARE OF THE SAME VIEW.  "AS ALL PRACTICING LAWYERS
KNOW, WHO HAVE DEFENDED PERSONS CHARGED WITH CAPITAL OFFENSES, OFTEN
THE ONLY GOAL POSSIBLE IS TO AVOID THE DEATH PENALTY."  GRIFFIN V.
ILLINOIS, 351 U.S. 12, 28 (1956) (BURTON AND MINTON, JJ., DISSENTING). 
SOME LEGISLATURES HAVE REQUIRED PARTICULAR PROCEDURES, SUCH AS TWO
STAGE TRIALS AND AUTOMATIC APPEALS, APPLICABLE ONLY IN DEATH CASES. 
"IT IS THE UNIVERSAL EXPERIENCE IN THE ADMINISTRATION OF CRIMINAL
JUSTICE THAT THOSE CHARGED WITH CAPITAL OFFENSES ARE GRANTED SPECIAL
CONSIDERATIONS."  IBID.  SEE WILLIAMS V. FLORIDA, 399 U.S. 78, 103
(1970) (ALL STATES REQUIRE JURIES OF 12 IN DEATH CASES).  THIS COURT,
TOO, ALMOST ALWAYS TREATS DEATH CASES AS A CLASS APART.  /34/  AND THE
UNFORTUNATE EFFECT OF THIS PUNISHMENT UPON THE FUNCTIONING OF THE
JUDICIAL PROCESS IS WELL KNOWN; NO OTHER PUNISHMENT HAS A SIMILAR
EFFECT. 

THE ONLY EXPLANATION FOR THE UNIQUENESS OF DEATH IS ITS EXTREME
SEVERITY.  DEATH IS TODAY AN UNUSUALLY SEVERE PUNISHMENT, UNUSUAL IN
ITS PAIN, IN ITS FINALITY, AND IN ITS ENORMITY.  NO OTHER EXISTING
PUNISHMENT IS COMPARABLE TO DEATH IN TERMS OF PHYSICAL AND MENTAL
SUFFERING.  ALTHOUGH OUR INFORMATION IS NOT CONCLUSIVE, IT APPEARS THAT
THERE IS NO METHOD AVAILABLE THAT GUARANTEES AN IMMEDIATE AND PAINLESS
DEATH.  /35/  SINCE THE DISCONTINUANCE OF FLOGGING AS A
CONSTITUTIONALLY PERMISSIBLE PUNISHMENT, JACKSON V. BISHOP, 404 F.2D
571 (CA8 1968), DEATH REMAINS AS THE ONLY PUNISHMENT THAT MAY INVOLVE
THE CONSCIOUS INFLICTION OF PHYSICAL PAIN.  IN ADDITION, WE KNOW THAT
MENTAL PAIN IS AN INSEPARABLE PART OF OUR PRACTICE OF PUNISHING
CRIMINALS BY DEATH, FOR THE PROSPECT OF PENDING EXECUTION EXACTS A
FRIGHTFUL TOLL DURING THE INEVITABLE LONG WAIT BETWEEN THE IMPOSITION
OF SENTENCE AND THE ACTUAL INFLICTION OF DEATH.  CF. EX PARTE MEDLEY,
134 U.S. 160, 172 (1890).  AS THE CALIFORNIA SUPREME COURT POINTED OUT,
"THE PROCESS OF CARRYING OUT A VERDICT OF DEATH IS OFTEN SO DEGRADING
AND BRUTALIZING TO THE HUMAN SPIRIT AS TO CONSTITUTE PSYCHOLOGICAL
TORTURE."  PEOPLE V. ANDERSON, 6 CAL.3D 628, 649, 493 P.2D 880, 894
(1972).  /36/  INDEED, AS MR. JUSTICE FRANKFURTER NOTED, "THE ONSET OF
INSANITY WHILE AWAITING EXECUTION OF A DEATH SENTENCE IS NOT A RARE
PHENONMENON."  SOLESBEE V. BALKCOM, 339 U.S. 9, 14 (1950) (DISSENTING
OPINION).  THE "FATE OF EVER-INCREASING FEAR AND DISTRESS" TO WHICH THE
EXPATRIATE IS SUBJECTED, TROP V. DULLES, 356 U.S.,AT 102, CAN ONLY
EXIST TO A GREATER DEGREE FOR A PERSON CONFINED IN PRISON AWAITING
DEATH.  /37/ 

THE UNUSUAL SEVERITY OF DEATH IS MANIFESTED MOST CLEARLY IN ITS
FINALITY AND ENORMITY.  DEATH, IN THESE RESPECTS, IS IN A CLASS BY
ITSELF.  EXPATRIATION, FOR EXAMPLE, IS A PUNISHMENT THAT "DESTROYS FOR
THE INDIVIDUAL THE POLITICAL EXISTENCE THAT WAS CENTURIES IN THE
DEVELOPMENT," THAT "STRIPS THE CITIZEN OF HIS STATUS IN THE NATIONAL
AND INTERNATIONAL POLITICAL COMMUNITY," AND THAT PUTS "(HIS VERY
EXISTENCE" IN JEOPARDY.  EXPATRIATION THUS INHERENTLY ENTAILS "THE
TOTAL DESTRUCTION OF THE INDIVIDUAL'S STATUS IN ORGANIZED SOCIETY." 
ID., AT 101.  "IN SHORT, THE EXPATRIATE HAS LOST THE RIGHT TO HAVE
RIGHTS."  ID., AT 102.  YET, DEMONSTRABLY, EXPATRIATION IS NOT "A FATE
WORSE THAN DEATH."  ID., AT 125 (FRANKFURTER, J., DISSENTING).  /38/
ALTHOUGH DEATH, LIKE EXPATRIATION, DESTROYS THE INDIVIDUAL'S "POLITICAL
EXISTENCE" AND HIS "STATUS IN ORGANIZED SOCIETY," IT DOES MORE, FOR,
UNLIKE EXPATRIATION, DEATH ALSO DESTROYS "(HIS VERY EXISTENCE."  THERE
IS, TOO, AT LEAST THE POSSIBILITY THAT THE EXPATRIATE WILL IN THE
FUTURE REGAIN "THE RIGHT TO HAVE RIGHTS."  DEATH FORECLOSES EVEN THAT
POSSIBILITY. 

DEATH IS TRULY AN AWESOME PUNISHMENT.  THE CALCULATED KILLING OF A
HUMAN BEING BY THE STATE INVOLVES, BY ITS VERY NATURE, A DENIAL OF THE
EXECUTED PERSON'S HUMANITY.  THE CONTRAST WITH THE PLIGHT OF A PERSON
PUNISHED BY IMPRISONMENT IS EVIDENT.  AN INDIVIDUAL IN PRISON DOES NOT
LOSE "THE RIGHT TO HAVE RIGHTS."  A PRISONER RETAINS, FOR EXAMPLE, THE
CONSTITUTIONAL RIGHTS TO THE FREE EXERCISE OF RELIGION, TO BE FREE OF
CRUEL AND UNUSUAL PUNISHMENTS, AND TO TREATMENT AS A "PERSON" FOR
PURPOSES OF DUE PROCESS OF LAW AND THE EQUAL PROTECTION OF THE LAWS.  A
PRISONER REMAINS A MEMBER OF THE HUMAN FAMILY.  MOREOVER, HE RETAINS
THE RIGHT OF ACCESS TO THE COURTS.  HIS PUNISHMENT IS NOT IRREVOCABLE. 
APART FROM THE COMMON CHARGE, GROUNDED UPON THE RECOGNITION OF HUMAN
FALLIBILITY, THAT THE PUNISHMENT OF DEATH MUST INEVITABLY BE INFLICTED
UPON INNOCENT MEN, WE KNOW THAT DEATH HAS BEEN THE LOT OF MEN WHOSE
CONVICTIONS WERE UNCONSTITUTIONALLY SECURED IN VIEW OF LATER,
RETROACTIVELY APPLIED, HOLDINGS OF THIS COURT.  THE PUNISHMENT ITSELF
MAY HAVE BEEN UNCONSTITUTIONALLY INFLICTED, SEE WITHERSPOON V.
ILLINOIS, 392 U.S. 510 (1968), YET THE FINALITY OF DEATH PRECLUDES
RELIEF.  AN EXECUTED PERSON HAS INDEED "LOST THE RIGHT TO HAVE
RIGHTS."  AS ONE 19TH CENTURY PROPONENT OF PUNISHING CRIMINALS BY DEATH
DECLARED, "WHEN A MAN IS HUNG, THERE IS AN END OF OUR RELATIONS WITH
HIM.  HIS EXECUTION IS A WAY OF SAYING, 'YOU ARE NOT FIT FOR THIS
WORLD, TAKE YOUR CHANCE ELSEWHERE.'"  /39/ 

IN COMPARISON TO ALL OTHER PUNISHMENTS TODAY, THEN, THE DELIBERATE
EXTINGUISHMENT OF HUMAN LIFE BY THE STATE IS UNIQUELY DEGRADING TO
HUMAN DIGNITY.  I WOULD NOT HESITATE TO HOLD, ON THAT GROUND ALONE,
THAT DEATH IS TODAY A "CRUEL AND UNUSUAL" PUNISHMENT, WERE IT NOT THAT
DEATH IS A PUNISHMENT OF LONGSTANDING USAGE AND ACCEPTANCE IN THIS
COUNTRY.  I THEREFORE TURN TO THE SECOND PRINCIPLE-- THAT THE STATE MAY
NOT ARBITRARILY INFLICT AN UNUSUALLY SEVERE PUNISHMENT. 

THE OUTSTANDING CHARACTERISTIC OF OUR PRESENT PRACTICE OF PUNISHING
CRIMINALS BY DEATH IS THE INFREQUENCY WITH WHICH WE RESORT TO IT.  THE
EVIDENCE IS CONCLUSIVE THAT DEATH IS NOT THE ORDINARY PUNISHMENT FOR
ANY CRIME. 

THERE HAS BEEN A STEADY DECADE SINCE THE 1930'S, THE EARLIEST PERIOD
FOR WHICH ACCURATE STATISTICS ARE AVAILABLE.  IN THE 1930'S, EXECUTIONS
AVERAGED 167 PER YEAR; IN THE 1940'S, THE AVERAGE WAS 128; IN THE
1950'S, IT WAS 72; AND IN THE YEARS 1960-1962, IT WAS 48.  THERE HAVE
BEEN A TOTAL OF 46 EXECUTIONS SINCE THEN, 36 OF THEM IN 1963-1964. 
/40/  YET OUR POPULATION AND THE NUMBER OF CAPITAL CRIMES COMMITTED
HAVE INCREASED GREATLY OVER THE PAST FOUR DECADES.  THE CONTEMPORARY
RARITY OF THE INFLICTION OF THIS PUNISHMENT IS THUS THE END RESULT OF A
LONG-CONTINUED DECLINE.  THAT RARITY IS PLAINLY REVEALED BY AN
EXAMINATION OF THE YEARS 1961-1970, THE LAST 10-YEAR PERIOD FOR WHICH
STATISTICS ARE AVAILABLE.  DURING THAT TIME, AN AVERAGE OF 106 DEATH
SENTENCES WAS IMPOSED EACH YEAR.  /41/  NOT NEARLY THAT NUMBER,
HOWEVER, COULD BE CARRIED OUT, FOR MANY WERE PRECLUDED BY COMMUTATIONS
TO LIFE OR A TERM OF YEARS, /42/  TRANSFERS TO MENTAL INSTITUTIONS
BECAUSE OF INSANITY, /43/  RESENTENCES TO LIFE OR A TERM OF YEARS,
GRANTS OF NEW TRIALS AND ORDERS FOR RESENTENCING, DISMISSALS OF
INDICTMENTS AND REVERSALS OF CONVICTIONS, AND DEATHS BY SUICIDE AND
NATURAL CAUSES.  /44/  ON JANUARY 1, 1961, THE DEATH ROW POPULATION WAS
219; ON DECEMBER 31, 1970, IT 608; DURING THAT SPAN, THERE WERE 135
EXECUTIONS.  /45/  CONSEQUENTLY, HAD THE 389 ADDITIONS TO DEATH ROW
ALSO BEEN EXECUTED, THE ANNUAL AVERAGE WOULD HAVE BEEN 52.  /46/  IN
SHORT, THE COUNTRY MIGHT, AT MOST, HAVE EXECUTED ONE CRIMINAL EACH
WEEK.  IN FACT, OF COURSE, FAR FEWER WERE EXECUTED.  EVEN BEFORE THE
MORATORIUM ON EXECUTIONS BEGAN IN 1967, EXECUTIONS TOTALED ONLY 42 IN
1961 AND 47 IN 1962, AN AVERAGE OF LESS THAN ONE PER WEEK; THE NUMBER
DWINDLED TO 21 IN 1963, TO 15 IN 1964, AND TO SEVEN IN 1965; IN 1966,
THERE WAS ONE EXECUTION, AND IN 1967, THERE WERE TWO.  /47/ 

WHEN A COUNTRY OF OVER 200 MILLION PEOPLE INFLICTS AN UNUSUALLY
SEVERE PUNISHMENT NO MORE THAN 50 TIMES A YEAR, THE INFERENCE IS STRONG
THAT THE PUNISHMENT IS NOT BEING REGULARLY AND FAIRLY APPLIED.  TO
DISPEL IT WOULD INDEED REQUIRE A CLEAR SHOWING OF NONARBITRARY
INFLICTION. 

ALTHOUGH THERE ARE NO EXACT FIGURES AVAILABLE, WE KNOW THAT
THOUSANDS OF MURDERS AND RAPES ARE COMMITTED ANNUALLY IN STATES WHERE
DEATH IS AN AUTHORIZED PUNISHMENT FOR THOSE CRIMES.  HOWEVER THE RATE
OF INFLICTION IS CHARACTERIZED-- AS "FREAKISHLY" OR "SPECTACULARLY"
RARE, OR SIMPLY AS RARE-- IT WOULD TAKE THE PUREST SOPHISTY TO DENY
THAT DEATH IS INFLICTED IN ONLY A MINUTE FRACTION OF THESE CASES.  HOW
MUCH RARER, AFTER ALL, COULD THE INFLICTION OF DEATH BE?     WHEN THE
PUNISHMENT OF DEATH IS INFLICTED IN A TRIVIAL NUMBER OF THE CASES IN
WHICH IT IS LEGALLY AVAILABLE, THE CONCLUSION IS VIRTUALLY INESCAPABLE
THAT IT IS BEING INFLICTED ARBITRARILY.  INDEED, IT SMACKS OF LITTLE
MORE THAN A LOTTERY SYSTEM.  THE STATES CLAIM, HOWEVER, THAT THIS
RARITY IS EVIDENCE NOT OF ARBITRARINESS, BUT OF INFORMED SELECTIVITY:
DEATH IS INFLICTED, THEY SAY, ONLY IN "EXTEME" CASES. 

INFORMED SELECTIVELY, OF COURSE, IS A VALUE NOT TO BE DENIGRATED. 
YET PRESUMABLY THE STATES COULD MAKE PRECISELY THE SAME CLAIM IF THERE
WERE 10 EXECUTIONS PER YEAR, OR FIVE, OR EVEN IF THERE WERE BUT ONE. 
THAT THERE MAY BE AS MANY AS 50 PER YEAR DOES NOT STRENGTHEN THE
CLAIM.  WHEN THE RATE OF INFLICTION IS AT THIS LOW LEVEL, IT IS HIGHLY
IMPLAUSIBLE THAT ONLY THE WORST CRIMINALS OR THE CRIMINALS WHO COMMIT
THE WORST CRIMES ARE SELECTED FOR THIS PUNISHMENT.  NO ONE HAS YET
SUGGESTED A RATIONAL BASIS THAT COULD DIFFERENTIATE IN THOSE TERMS THE
FEW WHO DIE FROM THE MANY WHO GO TO PRISON.  CRIMES AND CRIMINALS
SIMPLY DO NOT ADMIT OF A DISTINCTION THAT CAN BE DRAWN SO FINELY AS TO
EXPLAIN, ON THAT GROUND, THE EXECUTION OF SUCH A TINY SAMPLE OF THOSE
ELIGIBLE.  CERTAINLY THE LAWS THAT PROVIDE FOR THIS PUNISHMENT DO NOT
ATTEMPT TO DRAW THAT DISTINCTION; ALL CASES TO WHICH THE LAWS APPLY ARE
NECESSARILY "EXTREME."  NOR IS THE DISTINCTION CREDIBLE IN FACT.  IF,
FOR EXAMPLE, PETITIONER FURMAN OR HIS CRIME ILLUSTRATES THE "EXTREME,"
THEN NEARLY ALL MURDERERS AND THEIR MURDERS ARE ALSO "EXTEME."  /48/
FURTHERMORE, OUR PROCEDURES IN DEATH CASES, RATHER THAN RESULTING IN
THE SELECTION OF "EXTREME" CASES FOR THIS PUNISHMENT, ACTUALLY SANCTION
AN ARBITRARY SELECTION.  FOR THIS COURT HAS HELD THAT JURIES MAY, AS
THEY DO, MAKE THE DECISION WHETHER TO IMPOSE A DEATH SENTENCE WHOLLY
UNGUIDED BY STANDARDS GOVERNING THAT DECISION.  MCGAUTHA V. CALIFORNIA,
402 U.S. 183, 196-- 208 (1971).  IN OTHER WORDS, OUR PROCEDURES ARE NOT
CONSTRUCTED TO GUARD AGAINST THE TOTALLY CAPRICIOUS SELECTION OF
CRIMINALS FOR THE PUNISHMENT OF DEATH. 

ALTHOUGH IT IS DIFFICULT TO IMAGINE WHAT FURTHER FACTS WOULD BE
NECESSARY IN ORDER TO PROVE THAT DEATH IS, AS MY BROTHER STEWART PUTS
IT, "WANTONLY AND . . . FREAKISHLY" INFLICTED, I NEED NOT CONCLUDE THAT
ARBITRARY INFLICTION IS PATENTLY OBVIOUS.  I AM NOT CONSIDERING THIS
PUNISHMENT BY THE ISOLATED LIGHT OF ONE PRINCIPLE.  THE PROBABILITY OF
ARBITRARINESS IS SUFFICIENTLY SUBSTANTIAL THAT IT CAN BE RELIED UPON,
IN COMBINATION WITH THE OTHER PRINCIPLES, IN REACHING A JUDGMENT ON THE
CONSTITUTIONALITY OF THIS PUNISHMENT. 

WHEN THERE IS A STRONG PROBABILITY THAT AN UNUSUALLY SEVERE AND
DEGRADING PUNISHMENT IS BEING INFLICTED ARBITRARILY, WE MAY WELL EXPECT
THAT SOCIETY WILL DISAPPROVE OF ITS INFLICTION.  I TURN, THEREFORE, TO
THE THIRD PRINCIPLE.  AN EXAMINATION OF THE HISTORY AND PRESENT
OPERATION OF THE AMERICAN PRACTICE OF PUNISHING CRIMINALS BY DEATH
REVEALS THAT THIS PUNISHMENT HAS BEEN ALMOST TOTALLY REJECTED BY
CONTEMPORARY SOCIETY. 

I CANNOT ADD TO MY BROTHER MARSHALL'S COMPREHENSIVE TREATMENT OF THE
ENGLISH AND AMERICAN HISTORY OF THIS PUNISHMENT.  I EMPHASIZE, HOWEVER,
ONE SIGNIFICANT CONCLUSION THAT EMERGES FROM THAT HISTORY.  FROM THE
BEGINNING OF OUR NATION, THE PUNISHMENT OF DEATH HAS STIRRED ACUTE
PUBLIC CONTROVERSY.  ALTHOUGH PRAGMATIC ARGUMENTS FOR AND AGAINST THE
PUNISHMENT HAVE BEEN FREQUENTLY ADVANCED, THIS LONGSTANDING AND HEATED
CONTROVERSY CANNOT BE EXPLAINED SOLELY AS THE RESULT OF DIFFERENCES
OVER THE PRACTICAL WISDOM OF A PARTICULAR GOVERNMENT POLICY.  THE
COUNTRY HAS DEBATED WHETHER A SOCIETY FOR WHICH THE DIGNITY OF THE
INDIVIDUAL IS THE SUPREME VALUE CAN, WITHOUT A FUNDAMENTAL
INCONSISTENCY, FOLLOW THE PRACTICE OF DELIBERATELY PUTTING SOME OF ITS
MEMBERS TO DEATH.  IN THE UNITED STATES, AS IN OTHER NATIONS OF THE
WESTERN WORLD, "THE STRUGGLE ABOUT THIS PUNISHMENT HAS BEEN ONE BETWEEN
ANCIENT AND DEEPLY ROOTED BELIEFS IN RETRIBUTION, ATONEMENT OR
VENGEANCE ON THE ONE HAND, AND, ON THE OTHER, BELIEFS IN THE PERSONAL
VALUE AND DIGNITY OF THE COMMON MAN THAT WERE BORN OF THE DEMONCRATIC
MOVEMENT OF THE EIGHTEENTH CENTURY, AS WELL AS BELIEFS IN THE
SCIENTIFIC APPROACH TO AN UNDERSTANDING OF THE MOTIVE FORCES OF HUMAN
CONDUCT, WHICH ARE THE RESULT OF THE GROWTH OF THE SCIENCES OF BEHAVIOR
DURING THE NINETEENTH AND TWENTIETH CENTURIES."  /49/  IT IS THIS
ESSENTIALLY MORAL CONFLICT THAT FORMS THE BACKDROP FOR THE PAST CHANGES
IN AND THE PRESENT OPERATION OF OUR SYSTEM OF IMPOSING DEATH AS A
PUNISHMENT FOR CRIME. 

OUR PRACTICE OF PUNISHING CRIMINALS BY DEATH HAS CHANGED GREATLY
OVER THE YEARS.  ONE SIGNIFICANT CHANGE HAS BEEN IN OUR METHODS OF
INFLICTING DEATH.  ALTHOUGH THIS COUNTRY NEVER EMBRACED THE MORE
VIOLENT AND REPULSIVE METHODS EMPLOYED IN ENGLAND, WE DID FOR A LONG
TIME RELY ALMOST EXCLUSIVELY UPON THE GALLOWS AND THE FIRING SQUAD. 
SINCE THE DEVELOPMENT OF THE SUPPOSEDLY MORE HUMANS METHODS OF
ELECTROCUTION LATE IN THE 19TH CENTURY AND LETHAL GAS IN THE 20TH,
HOWEVER, HANDING AND SHOOTING HAVE VIRTUALLY CEASED.  /50/  OUR CONCERN
FOR DECENCY AND HUMAN DIGNITY, MOREOVER, HAS COMPELLED CHANGES IN THE
CIRCUMSTANCES SURROUNDING THE EXECUTION ITSELF.  NO LONGER DOES OUR
SOCIETY COUNTENANCE THE SPECTACLE OF PUBLIC EXECUTIONS, ONCE THOUGHT
DESIRABLE AS A DETERRENT TO CRIMINAL BEHAVIOR BY OTHERS.  TODAY WE
REJECT PUBLIC EXECUTIONS AS DEBASING AND BRUTALIZING TO US ALL. 

ALSO SIGNIFICANT IS THE DRASTIC DECREASE IN THE CRIMES FOR WHICH THE
PUNISHMENT OF DEATH IS ACTUALLY INFLICTED.  WHILE ESOTERIC CAPITAL
CRIMES REMAIN ON THE BOOKS, SINCE 1930 MURDER AND RAPE HAVE ACCOUNTED
FOR NEARLY 99% OF THE TOTAL EXECUTIONS, AND MURDER ALONE FOR ABOUT
87%.  /51/  IN ADDITION, THE CRIME OF CAPITAL MURDER HAS ITSELF BEEN
LIMITED.  AS THE COURT NOTED IN MCGAUTHA V. CALIFORNIA, 402 U.S.,AT
198, THERE WAS IN THIS COUNTRY A "REBELLION AGAINST THE COMMON-LAW RULE
IMPOSING A MANDATORY DEATH SENTENCE ON ALL CONVICTED MURDERERS." 
INITIALLY, THAT REBELLION RESULTED IN LEGISLATIVE DEFINITIONS THAT
DISTINGUISHED BETWEEN DEGREES OF MURDER, RETAINING THE MANDATORY DEATH
SENTENCE ONLY FOR MURDER IN THE FIRST DEGREE.  YET "(THIS NEW
LEGISLATIVE CRITERION FOR ISOLATING CRIMES APPROPRIATELY PUNISHABLE BY
DEATH SOON PROVED AS UNSUCCESSFUL AS THE CONCEPT OF 'MALICE
AFORETHOUGHT,'" IBID., THE COMMON-LAW MEANS OF SEPERATING MURDER FROM
MANSLAUGHTER.  NOT ONLY WAS THE DISTINCTION BETWEEN DEGREES OF MURDER
CONFUSING AND UNCERTAIN IN PRACTICE, BUT EVEN IN CLEAR CASES OF FIRST
DEGREE MURDER JURIES CONTINUED TO TAKE THE LAW INTO THEIR OWN HANDS:
IF THEY FELT THAT DEATH WAS AN INAPPROPRIATE PUNISHMENT, "THEY SIMPLY
REFUSED TO CONVICT OF THE CAPITAL OFFENSE."  ID., AT 199.  THE
PHENOMENON OF JURY NULLIFICATION THUS REMAINED TO COUNTERACT THE RIGORS
OF MANDATORY DEATH SENTENCES.  BOWING TO REALITY, "LEGISLATURES DID NOT
TRY, AS BEFORE, TO REFINE FURTHER THE DEFINITION OF CAPITAL HOMICIDES. 
INSTEAD THEY ADOPTED THE METHOD OF FORTHRIGHTLY GRANTING JURIES THE
DISCRETION WHICH THEY HAD BEEN EXERCISING IN FACT."  IBID.  IN
CONSEQUENCE, VIRTUALLY ALL DEATH SENTENCES TODAY ARE DISCRETIONARILY
IMPOSED.  FINALLY, IT IS SIGNIFICANT THAT NINE STATES NO LONGER INFLICT
THE PUNISHMENT OF DEATH UNDER ANY CIRCUMSTANCES, /52/  AND FIVE OTHERS
HAVE RESTRICTED IT TO EXTREMELY RARE CRIMES.  /53/ 

THUS, ALTHOUGH "THE DEATH PENALTY HAS BEEN EMPLOYED THROUGHOUT OUR
HISTORY," TROP V. DULLES, 356 U.S.,AT 99, IN FACT THE HISTORY OF THIS
PUNISHMENT IS ONE OF SUCCESSIVE RESTRICTION.  WHAT WAS ONCE A COMMON
PUNISHMENT HAS BECOME, IN THE CONTEXT OF A CONTINUING MORAL DEBATE,
INCREASINGLY RARE.  THE EVOLUTION OF THIS PUNISHMENT EVIDENCES, NOT
THAT IT IS AN INEVITABLE PART OF THE AMERICAN SCENE, BUT THAT IT HAS
PROVED PROGRESSIVELY MORE TROUBLESOME TO THE NATIONAL CONSCIENCE.  THE
RESULT OF THIS MOVEMENT IS OUR CURRENT SYSTEM OF ADMINISTERING THE
PUNISHMENT, UNDER WHICH DEATH SENTENCES ARE RARELY IMPOSED AND DEATH IS
EVEN MORE RARELY INFLICTED.  IT IS, OF COURSE, "WE, THE PEOPLE" WHO ARE
RESPONSIBLE FOR THE RARITY BOTH OF THE IMPOSITION AND THE CARRYING OUT
OF THIS PUNISHMENT.  JURIES, "EXPRESSING) THE CONSCIENCE OF THE
COMMUNITY ON THE ULTIMATE QUESTION OF LIFE OR DEATH," WITHERSPOON V.
ILLINOIS, 391 U.S.,AT 519, HAVE BEEN ABLE TO BRING THEMSELVES TO VOTE
FOR DEATH IN A MERE 100 OR SO CASES AMONG THE THOUSANDS TRIED EACH YEAR
WHERE THE PUNISHMENT IS AVAILABLE.  GOVERNORS, ELECTED BY AND ACTING
FOR US, HAVE REGULARLY COMMUTED A SUBSTANTIAL NUMBER OF THOSE
SENTENCES.  AND IT IS OUR SOCIETY THAT INSISTS UPON DUE PROCESS OF LAW
TO THE END THAT NO PERSON WILL BE UNJUSTLY PUT TO DEATH, THUS ENSURING
THAT MANY MORE OF THOSE SENTENCES WILL NOT BE CARRIED OUT.  IN SUM, WE
HAVE MADE DEATH A RARE PUNISHMENT TODAY. 

THE PROGRESSIVE DECLINE IN, AND THE CURRENT RARITY OF, THE
INFLICTION OF DEATH DEMONSTRATE THAT OUR SOCIETY SERIOUSLY QUESTIONS
THE APPROPRIATENESS OF THIS PUNISHMENT TODAY.  THE STATES POINT OUT
THAT MANY LEGISLATURES AUTHORIZE DEATH AS THE PUNISHMENT FOR CERTAIN
CRIMES AND THAT SUBSTANTIAL SEGMENTS OF THE PUBLIC, AS REFLECTED IN
OPINION POLLS AND REFERENDUM VOTES, CONTINUE TO SUPPORT IT.  YET THE
AVAILABILITY OF THIS PUNISHMENT THROUGH STATUTORY AUTHORIZATION, AS
WELL AS THE POLLS AND REFERENDA, WHICH AMOUNT SIMPLY TO APPROVAL OF
THAT AUTHORIZATION, SIMPLE UNDERSCORES THE EXTENT TO WHICH OUR SOCIETY
HAS IN FACT REJECTED THIS PUNISHMENT.  WHEN AN UNUSUALLY SEVERE
PUNISHMENT IS AUTHORIZED FOR WIDE-SCALE APPLICATION BUT NOT, BECAUSE OF
SOCIETY'S REFUSAL, INFLICTED SAVE IN A FEW INSTANCES, THE INFERENCE IS
COMPELLING THAT THERE IS A DEEP-SEATED RELUCTANCE TO INFLICT IT.
INDEED, THE LIKELIHOOD IS GREAT THAT THE PUNISHMENT IS TOLERATED ONLY
BECAUSE OF ITS DISUSE.  THE OBJECTIVE INDICATOR OF SOCIETY'S VIEW OF AN
UNUSUALLY SEVERE PUNISHMENT IS WHAT SOCIETY DOES WITH IT, AND TODAY
SOCIETY WILL INFLICT DEATH UPON ONLY A SMALL SAMPLE OF THE ELIGIBLE
CRIMINALS.  REJECTION COULD HARDLY BE MORE COMPLETE WITHOUT BECOMING
ABSOLUTE.  AT THE VERY LEAST, I MUST CONCLUDE THAT CONTEMPORARY SOCIETY
VIEWS THIS PUNISHMENT WITH SUBSTANTIAL DOUBT. 

THE FINAL PRINCIPLES TO BE CONSIDERED IS THAT AN UNUSUALLY SEVERE
AND DEGRADING PUNISHMENT MAY NOT BE EXCESSIVE IN VIEW OF THE PURPOSES
FOR WHICH IT IS INFLICTED.  THIS PRINCIPLE, TOO, IS RELATED TO THE
OTHERS.  WHEN THERE IS A STRONG PROBABILITY THAT THE STATE IS
ARBITRARILY INFLICTING AN UNUSUALLY SEVERE PUNISHMENT THAT IS SUBJECT
TO GRAVE SOCIETAL DOUBTS, IT IS LIKELY ALSO THAT THE PUNISHMENT CANNOT
BE SHOWN TO BE SERVING ANY PENAL PURPOSE THAT COULD NOT BE SERVED
EQUALLY WELL BY SOME LESS SEVERE PUNISHMENT. 

THE STATES' PRIMARY CLAIM IS THAT DEATH IS A NECESSARY PUNISHMENT
BECAUSE IT PREVENTS THE COMMISSION OF CAPITAL CRIMES MORE EFFECTIVELY
THAN ANY LESS SEVERE PUNISHMENT.  THE FIRST PART OF THIS CLAIM IS THAT
THE INFLICTION OF DEATH IS NECESSARY TO STOP THE INDIVIDUALS EXECUTED
FROM COMMITTING FURTHER CRIMES.  THE SUFFICIENT ANSWER TO THIS IS THAT
IF A CRIMINAL CONVICTED OF A CAPITAL CRIME POSES A DANGER TO SOCIETY,
EFFECTIVE ADMINISTRATION OF THE STATE'S PARDON AND PAROLE LAWS CAN
DELAY OR DENY HIS RELEASE FROM PRISON, AND TECHNIQUES OF ISOLATION CAN
ELIMINATE OR MINIMIZE THE DANGER WHILE HE REMAINS CONFINED. 

THE MORE SIGNIFICANT ARGUMENT IS THAT THE THREAT OF DEATH PREVENTS
THE COMMISSION OF CAPITAL CRIMES BECAUSE IT DETERS POTENTIAL CRIMINALS
WHO WOULD NOT BE DETERRED BY THE THREAT OF IMPRISONMENT.  THE ARGUMENT
IS NOT BASED UPON EVIDENCE THAT THE THREAT OF DEATH IS A SUPERIOR
DETERRENT.  INDEED, AS MY BROTHER MARSHALL ESTABLISHES, THE AVAILABLE
EVIDENCE UNIFORMLY INDICATES, ALTHOUGH IT DOES NOT CONCLUSIVELY PROVE,
THAT THE THREAT OF DEATH HAS NO GREATER DETERRENT EFFECT THAN THE
THREAT OF IMPRISONMENT.  THE STATES ARGUE, HOWEVER, THAT THEY ARE
ENTITLED TO RELY UPON COMMON HUMAN EXPERIENCE, AND THAT EXPERIENCE,
THEY SAY, SUPPORTS THE CONCLUSION THAT DEATH MUST BE A MORE EFFECTIVE
DETERRENT THAN ANY LESS SEVERE PUNISHMENT.  BECAUSE PEOPLE FEAR DEATH
THE MOST, THE ARGUMENT RUNS, THE THREAT OF DEATH MUST BE THE GREATEST
DETERRENT. 

IT IS IMPORTANT TO FOCUS UPON THE PRECISE IMPORT OF THIS ARGUMENT. 
IT IS NOT DENIED THAT MANY, AND PROBABLY MOST, CAPITAL CRIMES CANNOT BE
DETERRED BY THE THREAT OF PUNISHMENT.  THUS THE ARGUMENT CAN APPLY ONLY
TO THOSE WHO THINK RATIONALLY ABOUT THE COMMISSION OF CAPITAL CRIMES. 
PARTICULARLY IS THAT TRUE WHEN THE POTENTIAL CRIMINAL, UNDER THIS
ARGUMENT, MUST NOT ONLY CONSIDER THE RISK OF PUNISHMENT, BUT ALSO
DISTINGUISH BETWEEN TWO POSSIBLE PUNISHMENTS.  THE CONCERN, THEN, IS
WITH A PARTICULAR TYPE OF POTENTIAL CRIMINAL, THE RATIONAL PERSON WHO
WILL COMMIT A CAPITAL CRIME KNOWING THAT THE PUNISHMENT IS LONG-TERM
IMPRISONMENT, WHICH MAY WELL BE FOR THE REST OF HIS LIFE, BUT WILL NOT
COMMIT THE CRIME KNOWING THAT THE PUNISHMENT IS DEATH.  ON THE FACT OF
IT, THE ASSUMPTION THAT SUCH PERSONS EXIST IS IMPLAUSIBLE. 

IN ANY EVENT, THIS ARGUMENT CANNOT BE APPRAISED IN THE ABSTRACT.  WE
ARE NOT PRESENTED WITH THE THEORETICAL QUESTION WHETHER UNDER ANY
IMAGINABLE CIRCUMSTANCES THE THREAT OF DEATH MIGHT BE A GREATER
DETERRENT TO THE COMMISSION OF CAPITAL CRIMES THAN THE THREAT OF
IMPRISONMENT.  WE ARE CONCERNED WITH THE PRACTICE OF PUNISHING
CRIMINALS BY DEATH AS IT EXISTS IN THE UNITED STATES TODAY.  PROPONENTS
OF THIS ARGUMENT NECESSARILY ADMIT THAT ITS VALIDITY DEPENDS UPON THE
EXISTENCE OF A SYSTEM IN WHICH THE PUNISHMENT OF DEATH IS INVARIABLY
AND SWIFTLY IMPOSED.  OUR SYSTEM, OF COURSE, SATISFIES NEITHER
CONDITION.  A RATIONAL PERSON CONTEMPLATING A MURDER OR RAPE IS
CONFRONTED, NOT WITH THE CERTAINTY OF A SPEEDY DEATH, BUT WITH THE
SLIGHTEST POSSIBILITY THAT HE WILL BE EXECUTED IN THE DISTANT FUTURE. 
THE RISK OF DEATH IS REMOTE AND IMPROBABLE; IN CONTRAST, THE RISK OF
LONG-TERM IMPRISONMENT IS NEAR AND GREAT.  IN SHORT, WHATEVER THE
SPECULATIVE VALIDITY OF THE ASSUMPTION THAT THE THREAT OF DEATH IS A
SUPERIOR DETERRENT, THERE IS NO REASON TO BELIEVE THAT AS CURRENTLY
ADMINISTERED THE PUNISHMENT OF DEATH IS NECESSARY TO DETER THE
COMMISSION OF CAPITAL CRIMES.  WHATEVER MIGHT BE THE CASE WERE ALL OR
SUBSTANTIALLY ALL ELIGIBLE CRIMINALS QUICKLY PUT TO DEATH, UNVERIFIABLE
POSSIBILITIES ARE AN INSUFFICIENT BASIS UPON WHICH TO CONCLUDE THAT THE
THREAT OF DEATH TODAY HAS ANY GREATER DETERRENT EFFICACY THAN THE
THREAT OF IMPRISONMENT.  /54/     THERE IS, HOWEVER, ANOTHER ASPECT TO
THE ARGUMENT THAT THE PUNISHMENT OF DEATH IS NECESSARY FOR THE
PROTECTION OF SOCIETY.  THE INFLICTION OF DEATH, THE STATES URGE,
SERVES TO MANIFEST THE COMMUNITY'S OUTRAGE AT THE COMMISSION OF THE
CRIME.  IT IS, THEY SAY, A CONCRETE PUBLIC EXPRESSION OF MORAL
INDIGNATION THAT INCULCATES RESPECT FOR THE LAW AND HELPS ASSURE A MORE
PEACEFUL COMMUNITY.  MOREOVER, WE ARE TOLD, NOT ONLY DOES THE
PUNISHMENT OF DEATH EXERT THIS WIDESPREAD MORALIZING INFLUENCE UPON
COMMUNITY VALUES, IT ALSO SATISFIES THE POPULAR DEMAND FOR GRIEVOUS
CONDEMNATION OF ABHORRENT CRIMES AND THUS PREVENTS DISORDER, LYNCHING,
AND ATTEMPTS BY PRIVATE CITIZENS TO TAKE THE LAW INTO THEIR OWN HANDS. 

THE QUESTION, HOWEVER, IS NOT WHETHER DEATH SERVES THESE SUPPOSED
PURPOSES OF PUNISHMENT, BUT WHETHER DEATH SERVES THEM MORE EFFECTIVELY
THAN IMPRISONMENT.  THERE IS NO EVIDENCE WHATEVER THAT UTILIZATION OF
IMPRISONMENT RATHER THAN DEATH ENCOURAGES PRIVATE BLOOD FEUDS AND OTHER
DISORDERS.  SURELY IF THERE WERE SUCH A DANGER, THE EXECUTION OF A
HANDFUL OF CRIMINALS EACH YEAR WOULD NOT PREVENT IT.  THE ASSERTION
THAT DEATH ALONE IS A SUFFICIENTLY EMPHATIC DENUNCIATION FOR CAPITAL
CRIMES SUFFERS FROM THE SAME DEFECT.  IF CAPITAL CRIMES REQUIRE THE
PUNISHMENT OF DEATH IN ORDER TO PROVIDE MORAL REINFORCEMENT FOR THE
BASIC VALUES OF THE COMMUNITY, THOSE VALUES CAN ONLY BE UNDERMINED WHEN
DEATH IS SO RARELY INFLICTED UPON THE CRIMINALS WHO COMMIT THE CRIMES. 
FURTHERMORE, IT IS CERTAINLY DOUBTFUL THAT THE INFLICTION OF DEATH BY
THE STATE DOES IN FACT STRENGTHEN THE COMMUNITY'S MORAL CODE; IF THE
DELIBERATE EXTINGUISHMENT OF HUMAN LIFE HAS ANY EFFECT AT ALL, IT MORE
LIKELY TENDS TO LOWER OUR RESPECT FOR LIFE AND BRUTALIZE OUR VALUES. 
THAT, AFTER ALL, IS WHY WE NO LONGER CARRY OUT PUBLIC EXECUTIONS.  IN
ANY EVENT, THIS CLAIM SIMPLY MEANS THAT ONE PURPOSE OF PUNISHMENT IS TO
INDICATE SOCIAL DISAPPROVAL OF CRIME.  TO SERVE THAT PURPOSE OUR LAWS
DISTRIBUTE PUNISHMENTS ACCORDING TO THE GRAVITY OF CRIMES AND PUNISH
MORE SEVERELY THE CRIMES SOCIETY REGARDS AS MORE SERIOUS.  THAT PURPOSE
CANNOT JUSTIFY ANY PARTICULAR PUNISHMENT AS THE UPPER LIMIT OF
SEVERITY. 

THERE IS, THEN, NO SUBSTANTIAL REASON TO BELIEVE THAT THE PUNISHMENT
OF DEATH, AS CURRENTLY ADMINISTERED, IS NECESSARY FOR THE PROTECTION OF
SOCIETY.  THE ONLY OTHER PURPOSE SUGGESTED, ONE THAT IS INDEPENDENT OF
PROTECTION FOR SOCIETY, IS RETRIBUTION.  SHORTLY STATED, RETRIBUTION IN
THIS CONTEXT MEANS THAT CRIMINALS ARE PUT TO DEATH BECAUSE THEY DESERVE
IT. 

ALTHOUGH IT IS DIFFICULT TO BELIEVE THAT ANY STATE TODAY WISHES TO
PROCLAIM ADHERENCE TO "NAKED VENGEANCE," TROP V. DULLES, 356 U.S.,AT
112 (BRENNAN, J., CONCURRING), THE STATES CLAIM, IN RELIANCE UPON ITS
STATUTORY AUTHORIZATION, THAT DEATH IS THE ONLY FIT PUNISHMENT FOR
CAPITAL CRIMES AND THAT THIS RETRIBUTIVE PURPOSE JUSTIFIES ITS
INFLICTION.  IN THE PAST, JUDGED BY ITS STATUTORY AUTHORIZATION, DEATH
WAS CONSIDERED THE ONLY FIT PUNISHMENT FOR THE CRIME OF FORGERY, FOR
THE FIRST FEDERAL CRIMINAL STATUTE PROVIDED A MANDATORY DEATH PENALTY
FOR THAT CRIME.  ACT OF APRIL 30, 1790, SEC. 14, 1 STAT. 115. 
OBVIOUSLY, CONCEPTS OF JUSTICE CHANGE; NO IMMUTABLE MORAL ORDER
REQUIRES DEATH FOR MURDERERS AND RAPISTS.  THE CLAIM THAT DEATH IS A
JUST PUNISHMENT NECESSARILY REFERS TO THE EXISTENCE OF CERTAIN PUBLIC
BELIEFS.  THE CLAIM MUST BE THAT FOR CAPITAL CRIMES DEATH ALONE
COMPORTS WITH SOCIETY'S NOTION OF PROPER PUNISHMENT.  AS ADMINISTERED
TODAY, HOWEVER, THE PUNISHMENT OF DEATH CANNOT BE JUSTIFIED AS A
NECESSARY MEANS OF EXACTING RETRIBUTION FROM CRIMINALS.  WHEN THE
OVERWHELMING NUMBER OF CRIMINALS WHO COMMIT CAPITAL CRIMES GO TO
PRISON, IT CANNOT BE CONCLUDED THAT DEATH SERVES THE PURPOSE OF
RETRIBUTION MORE EFFECTIVELY THAN IMPRISONMENT.  THE ASSERTED PUBLIC
BELIEF THAT MURDERERS AND RAPISTS DESERVE TO DIE IS FLATLY INCONSISTENT
WITH THE EXECUTION OF A RANDOM FEW.  AS THE HISTORY OF THE PUNISHMENT
OF DEATH IN THIS COUNTRY SHOWS, OUR SOCIETY WISHES TO PREVENT CRIME; WE
HAVE NO DESIRE TO KILL CRIMINALS SIMPLY TO GET EVEN WITH THEM. 

IN SUM, THE PUNISHMENT OF DEATH IS INCONSISTENT WITH ALL FOUR
PRINCIPLES:  DEATH IS AN UNUSUALLY SEVERE AND DEGRADING PUNISHMENT;
THERE IS A STRONG PROBABILITY THAT IT IS INFLICTED ARBITRARILY; ITS
REJECTION BY CONTEMPORARY SOCIETY IS VIRTUALLY TOTAL; AND THERE IS NO
REASON TO BELIEVE THAT IT SERVES ANY PENAL PURPOSE MORE EFFECTIVELY
THAN THE LESS SEVERE PUNISHMENT OF IMPRISONMENT.  THE FUNCTION OF THESE
PRINCIPLES IS TO ENABLE A COURT TO DETERMINE WHETHER A PUNISHMENT
COMPORTS WITH HUMAN DIGNITY.  DEATH, QUITE SIMPLY, DOES NOT. 

IV 

WHEN THIS COUNTRY WAS FOUNDED, MEMORIES OF THE STUART HORRORS WERE
FRESH AND SEVERE CORPORAL PUNISHMENTS WERE COMMON.  DEATH WAS NOT THEN
A UNIQUE PUNISHMENT.  THE PRACTICE OF PUNISHING CRIMINALS BY DEATH,
MOREOVER, WAS WIDESPREAD AND BY AND LARGE ACCEPTABLE TO SOCIETY. 
INDEED, WITHOUT DEVELOPED PRISON SYSTEMS, THERE WAS FREQUENTLY NO
WORKABLE ALTERNATIVE.  SINCE THAT TIME, SUCCESSIVE RESTRICTIONS,
IMPOSED AGAINST THE BACKGROUND OF A CONTINUING MORAL CONTROVERSY, HAVE
DRASTICALLY CURTAILED THE USE OF THIS PUNISHMENT.  TODAY DEATH IS A
UNIQUELY AND UNUSUALLY SEVERE PUNISHMENT.  WHEN EXAMINED BY THE
PRINCIPLES APPLICABLE UNDER THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE,
DEATH STANDS CONDEMNED AS FATALLY OFFENSIVE TO HUMAN DIGNITY.  THE
PUNISHMENT OF DEATH IS THEREFORE "CRUEL AND UNUSUAL," AND THE STATES
MAY NO LONGER INFLICT IT AS A PUNISHMENT FOR CRIMES.  RATHER THAN KILL
AN ARBITRARY HANDFUL OF CRIMINALS EACH YEAR, THE STATES WILL CONFINE
THEM IN PRISON.  "THE STATE THEREBY SUFFERS NOTHING AND LOSES NO
POWER.  THE PURPOSE OF PUNISHMENT IS FULFILLED, CRIME IS REPRESSED BY
PENALTIES OF JUST, NOT TORMENTING, SEVERITY, ITS REPETITION IS
PREVENTED, AND HOPE IS GIVEN FOR THE REFORMATION OF THE CRIMINAL." 
WEEMS V. UNITED STATES, 217 U.S.,AT 381. 

I CONCUR IN THE JUDGMENTS OF THE COURT. 

/1/  THE EIGHTH AMENDMENT PROVIDES:  "EXCESSIVE BAIL SHALL NOT BE
REQUIRED, NOR EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL
PUNISHMENTS INFLICTED."  THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE IS
FULLY APPLICABLE TO THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962);
GIDEON V. WAINWRIGHT, 372 U.S. 335, 342 (1963); MALLOY V. HOGAN, 378
U.S. 1, 6 N. 6 (1964); POWELL V. TEXAS, 392 U.S. 514 (1968). 

/2/  HENRY CONTINUED: 

"BUT CONGRESS MAY INTRODUCE THE PRACTICE OF THE CIVIL LAW, IN
PREFERENCE TO THAT OF THE COMMON LAW.  THEY MAY INTRODUCE THE PRACTICE
OF FRANCE, SPAIN, AND GERMANY-- OF TORTURING, TO EXTORT A CONFESSION OF
THE CRIME.  THEY WILL SAY THAT THEY MIGHT AS WELL DRAW EXAMPLES FROM
THOSE COUNTRIES AS FROM GREAT BRITAIN, AND THEY WILL TELL YOU THAT
THERE IS SUCH A NECESSITY OF STRENGTHENING THE ARM OF GOVERNMENT, THAT
THEY MUST HAVE A CRIMINAL EQUITY, AND EXTORT CONFESSION BY TORTURE, IN
ORDER TO PUNISH WITH STILL MORE RELENTLESS SEVERITY.  WE ARE THEN LOST
AND UNDONE."  3 J.ELLIOT'S DEBATES 447-448 (2D ED. 1876). 

ALTHOUGH THESE REMARKS HAVE BEEN CITED AS EVIDENCE THAT THE FRAMERS
CONSIDERED ONLY TORTUROUS PUNISHMENTS TO BE "CRUEL AND UNUSUAL," IS IT
OBVIOUS THAT HENRY WAS REFERRING TO THE USE OF TORTURE FOR THE PURPOSE
OF ELICITING CONFESSIONS FROM SUSPECTED CRIMINALS.  INDEED, IN THE
ENSUING COLLOQUY, SEE N. 3, INFRA, GEORGE MASON RESPONDED THAT THE USE
OF TORTURE WAS PROHIBITED BY THE RIGHT AGAINST SELF-INCRIMINATION
CONTAINED IN THE VIRGINIA BILL OF RIGHTS. 

/3/  IT IS SIGNIFICANT THAT THE RESPONSE TO HENRY'S PLEA, BY GEORGE
NICHOLAS, WAS SIMPLY THAT A BILL OF RIGHTS WOULD BE INEFFECTIVE AS A
MEANS OF RESTRAINING THE LEGISLATIVE POWER TO PRESCRIBE PUNISHMENT: 

"BUT THE GENTLEMAN SAYS THAT, BY THIS CONSTITUTION, THEY HAVE POWER
TO MAKE LAWS TO DEFINE CRIMES AND PRESCRIBE PUNISHMENTS; AND THAT,
CONSEQUENTLY, WE ARE NOT FREE FROM TORTURE.  . . . IF WE HAD NO
SECURITY AGAINST TORTURE BUT OUR (VIRGINIA) DECLARATION OF RIGHTS, WE
MIGHT BE TORTURED TO-MORROW; FOR IT HAS BEEN REPEATEDLY INFRINGED AND
DISREGARDED."  3 J.ELLIOT'S DEBATES, SUPRA, AT 451. 

GEORGE MASON MISINTERPRETED NICHOLAS' RESPONSE TO HENRY: 

MR. GEORGE MASON REPLIED THAT THE WORTHY GENTLEMAN WAS MISTAKEN IN
HIS ASSERTION THAT THE (VIRGINIA) BILL OF RIGHTS DID NOT PROHIBIT
TORTURE; FOR THAT ONE CLAUSE EXPRESSLY PROVIDED THAT NO MAN CAN GIVE
EVIDENCE AGAINST HIMSELF; AND THAT THE WORTHY GENTLEMAN MUST KNOW THAT,
IN THOSE COUNTRIES WHERE TORTURE IS USED, EVIDENCE WAS EXTORTED FROM
THE CRIMINAL HIMSELF.  ANOTHER CLAUSE OF THE BILL OF RIGHTS PROVIDED
THAT NO CRUEL AND UNUSUAL PUNISHMENTS SHALL BE INFLICTED; THEREFORE,
TORTURE WAS INCLUDED IN THE PROHIBITION."  ID., AT 452. 

NICHOLAS CONCLUDED THE COLLOQUY BY MAKING HIS POINT AGAIN: 

"MR. NICHOLAS ACKNOWLEDGED THE (VIRGINIA) BILL OF RIGHTS TO CONTAIN
THAT PROHIBITION, AND THAT THE GENTLEMAN WAS RIGHT WITH RESPECT TO THE
PRACTICE OF EXTORTING CONFESSION FROM THE CRIMINAL IN THOSE COUNTRIES
WHERE TORTURE IS USED; BUT STILL HE SAY NO SECURITY ARISING FROM THE
BILL OF RIGHTS AS SEPARATE FROM THE CONSTITUTION, FOR THAT IT HAD BEEN
FREQUENTLY VIOLATED WITH IMPUNITY."  IBID. 

THERE WAS THUS NO DENIAL THAT THE LEGISLATIVE POWER SHOULD BE
RESTRAINED; THE DISPUTE WAS WHETHER A BILL OF RIGHTS WOULD PROVIDE A
REALISTIC RESTRAINT.  THE FRAMERS, OBVIOUSLY, BELIEVED IT WOULD. 

/4/  WE HAVE NOT BEEN REFERRED TO ANY MENTION OF THE CRUEL AND
UNUSUAL PUNISHMENT CLAUSE IN THE DEBATES OF THE STATE LEGISLATURES ON
RATIFICATION OF THE BILL OF RIGHTS. 

/5/  THE ELIDED PORTION OF LIVERMORE'S REMARKS READS:  "WHAT IS
MEANT BY THE TERMS EXCESSIVE BAIL?  WHO ARE TO BE THE JUDGES?  WHAT IS
UNDERSTOOD BY EXCESSIVE FINES?  IT LIES WITH THE COURT TO DETERMINE." 
SINCE LIVERMORE DID NOT ASK SIMILAR RHETORICAL QUESTIONS ABOUT THE
CRUEL AND UNUSUAL PUNISHMENTS CLAUSE, IT IS UNCLEAR WHETHER HE INCLUDED
THE CLAUSE IN HIS OBJECTION THAT THE EIGHTH AMENDMENT "SEEMS TO HAVE NO
MEANING IN IT." 

/6/  INDEED, THE FIRST FEDERAL CRIMINAL STATUTE, ENACTED BY THE
FIRST CONGRESS, PRESCRIBED 39 LASHES FOR LARCENY AND FOR RECEIVING
STOLEN GOODS, AND ONE HOUR IN THE PILLORY FOR PREJURY.  ACT OF APR. 30,
1790, SECS. 16-18, 1 STAT. 116. 

/7/  MANY OF THE STATE COURTS, "FEELING CONSTRAINED THERETO BY THE
INCIDENCES OF HISTORY," WEEMS V. UNITED STATES, 217 U.S. 349, 376
(1910), WERE APPARENTLY TAKING THE SAME POSITION.  ONE COURT "EXPRESSED
THE OPINION THAT THE PROVISION DID NOT APPLY TO PUNISHMENT BY 'FINE OR
IMPRISONMENT OR BOTH, BUT SUCH AS THAT INFLICTED AT THE WHIPPING POST,
IN THE PILLORY, BURNING AT THE STAKE, BREAKING ON THE WHEEL,' ETC."
IBID.  ANOTHER COURT "SAID THAT ORDINARILY THE TERMS IMPLY SOMETHING
INHUMAN AND BARBAROUS, TORTURE AND THE LIKE.  . . . OTHER CASES . . .
SELECTED CERTAIN TYRANNICAL ACTS OF THE ENGLISH MONARCHS AS
ILLUSTRATING THE MEANING OF THE CLAUSE AND THE EXTENT OF ITS
PROHIBITION."  ID., AT 368. 

/8/  THE COURT HAD EARLIER EMPHASIZED THIS POINT IN IN RE KEMMLER,
136 U.S. 436 (1890), EVEN WHILE STATING THE NARROW, "HISTORICAL"
INTERPRETATION OF THE CLAUSE: 

"THE (ENGLISH) DECLARATION OF RIGHTS HAD REFERENCE TO THE ACTS OF
THE EXECUTIVE AND JUDICIAL DEPARTMENT OF THE GOVERNMENT OF ENGLAND; BUT
THE LANGUAGE IN QUESTION AS USED IN THE CONSTITUTION OF THE STATE OF
NEW YORK WAS INTENDED PARTICULARLY TO OPERATE UPON THE LEGISLATURE OF
THE STATE, TO WHOSE CONTROL THE PUNISHMENT OF CRIME WAS ALMOST WHOLLY
CONFIDED.  SO THAT, IF THE PUNISHMENT PRESCRIBED FOR AN OFFENSE AGAINST
THE LAWS OF THE STATE WERE MANIFESTLY CRUEL AND UNUSUAL, . . . IT WOULD
BE THE DUTY OF THE COURTS TO ADJUDGE SUCH PENALTIES TO BE WITHIN THE
CONSTITUTIONAL PROHIBITION.  AND WE THINK THIS EQUALLY TRUE OF THE
(CLAUSE), IN ITS APPLICATION TO CONGRESS."  ID., AT 446-447. 

/9/  INDEED, THE COURT IN WEEMS REFUSED EVEN TO COMMENT UPON SOME
DECISIONS FROM STATE COURTS BECAUSE THEY WERE "BASED UPON SENTENCES OF
COURTS, NOT UPON THE CONSTITUTIONAL VALIDITY OF LAWS."  217 U.S.,AT
377. 

/10/  THE CLAUSE "MAY BE THEREFORE PROGRESSIVE, AND IS NOT FASTENED
TO THE OBSOLETE BUT MAY ACQUIRE MEANING AS PUBLIC OPINION BECOMES
ENLIGHTENED BY A HUMANE JUSTICE."  WEEMS V. UNITED STATES, 217 U.S.,AT
378. 

/11/  "IT MAY BE THAT EVEN THE CRUELTY OF PAIN IS NOT OMITTED.  HE
MUST BEAR A CHAIN NIGHT AND DAY.  HE IS CONDEMNED TO PAINFUL AS WELL AS
HARD LABOR.  WHAT PAINFUL LABOR MAY MEAN WE HAVE NO EXACT MEASURE.  IT
MUST BE SOMETHING MORE THAN HARD LABOR.  IT MAY BE HARD LABOR PRESSED
TO THE POINT OF PAIN." 

/12/  "HIS PRISON BARS AND CHAINS ARE REMOVED, IT IS TRUE, AFTER
TWELVE YEARS, BUT HE GOES FROM THEM TO A PERPETUAL LIMITATION OF HIS
LIBERTY.  HE IS FOREVER KEPT UNDER THE SHADOW OF HIS CRIME, FOREVER
KEPT WITHIN VOICE AND VIEW OF THE CRIMINAL MAGISTRATE, NOT BEING ABLE
TO CHANGE HIS DOMICIL WITHOUT GIVING NOTICE TO THE 'AUTHORITY
IMMEDIATELY IN CHARGE OF HIS SURVEILLANCE,' AND WITHOUT PERMISSION IN
WRITING.  HE MAY NOT SEEK, EVEN IN OTHER SCENES AND AMONG OTHER PEOPLE,
TO RETRIEVE HIS FALL FROM RECTITUDE.  EVEN THAT HOPE IS TAKEN FROM HIM
AND HE IS SUBJECT TO TORMENTING REGULATIONS THAT, IF NOT SO TANGIBLE AS
IRON BARS AND STONE WALLS, OPPRESS AS MUCH BY THEIR CONTINUITY, AND
DEPRIVE OF ESSENTIAL LIBERTY."     /13/  "THIS PUNISHMENT IS OFFENSIVE
TO CARDINAL PRINCIPLES FOR WHICH THE CONSTITUTION STANDS.  IT SUBJECTS
THE INDIVIDUAL TO A FATE OF EVER-INCREASING FEAR AND DISTRESS.  HE
KNOWS NOT WHAT DISCRIMINATIONS MAY BE ESTABLISHED AGAINST HIM, WHAT
PROSCRIPTIONS MAY BE DIRECTED AGAINST HIM, AND WHEN AND FOR WHAT CAUSE
HIS EXISTENCE IN HIS NATIVE LAND MAY BE TERMINATED.  HE MAY BE SUBJECT
TO BANISHMENT, A FATE UNIVERSALLY DECRIED BY CIVILIZED PEOPLE.  HE IS
STATELESS, A CONDITION DEPLORED IN THE INTERNATIONAL COMMUNITY OF
DEMOCRACIES.  IT IS NO ANSWER TO SUGGEST THAT ALL THE DISASTROUS
CONSEQUENCES OF THIS FATE MAY NOT BE BROUGHT TO BEAR ON A STATELESS
PERSON.  THE THREAT MAKES THE PUNISHMENT OBNOXIOUS."  TROP V. DULLES,
356 U.S. 86, 102 (1958).  CF. ID., AT 110-111 (BRENNAN, J.,
CONCURRING): 

"(IT CAN BE SUPPOSED THAT THE CONSEQUENCES OF GREATEST WEIGHT, IN
TERMS OF ULTIMATE IMPACT ON THE PETITIONER, ARE UNKNOWN AND
UNKNOWNABLE.  INDEED, IN TRUTH, HE MAY LIVE OUT HIS LIFE WITH BUT MINOR
INCONVENIENCE.  . . . NEVERTHELESS IT CANNOT BE DENIED THAT THE IMPACT
OF EXPATRIATION-- ESPECIALLY WHERE STATELESSNESS IS THE UPSHOT-- MAY BE
SEVERE.  EXPATRIATION, IN THIS RESPECT, CONSTITUTES AN ESPECIALLY
DEMORALIZING SANCTION.  THE UNCERTAINTY, AND THE CONSEQUENT
PSYCHOLOGICAL HURT, WHICH MUST ACCOMPANY ONE WHO BECOMES AN OUTCAST IN
HIS OWN LAND MUST BE RECKONED A SUBSTANTIAL FACTOR IN THE ULTIMATE
JUDGMENT." 

/14/  "IT IS CRUEL IN ITS EXCESS OF IMPRISONMENT AND THAT WHICH
ACCOMPANIES AND FOLLOWS IMPRISONMENT.  IT IS UNUSUAL IN ITS CHARACTER. 
ITS PUNISHMENTS COME UNDER THE CONDEMNATION OF THE BILL OF RIGHTS, BOTH
ON ACCOUNT OF THEIR DEGREE AND KIND."  WEEMS V. UNITED STATES, 217
U.S.,AT 377. 

/15/  "THERE MAY BE INVOLVED NO PHYSICAL MISTREATMENT, NO PRIMITIVE
TORTURE.  THERE IS INSTEAD THE TOTAL DESTRUCTION OF THE INDIVIDUAL'S
STATUS IN ORGANIZED SOCIETY.  IT IS A FORM OF PUNISHMENT MORE PRIMITIVE
THAN TORTURE, FOR IT DESTROYS FOR THE INDIVIDUAL THE POLITICAL
EXISTENCE THAT WAS CENTURIES IN THE DEVELOPMENT.  THE PUNISHMENT STRIPS
THE CITIZEN OF HIS STATUS IN THE NATIONAL AND INTERNATIONAL POLITICAL
COMMUNITY.  HIS VERY EXISTENCE IS AT THE SUFFERANCE OF THE COUNTRY IN
WHICH HE HAPPENS TO FIND HIMSELF.  WHILE ANY ONE COUNTRY MAY ACCORD HIM
SOME RIGHTS, AND PRESUMABLY AS LONG AS HE REMAINED IN THIS COUNTRY HE
WOULD ENJOY THE LIMITED RIGHTS OF AN ALIEN, NO COUNTRY NEED DO SO
BECAUSE HE IS STATELESS.  FURTHERMORE, HIS ENJOYMENT OF EVEN THE
LIMITED RIGHTS OF AN ALIEN MIGHT BE SUBJECT TO TERMINATION AT ANY TIME
BY REASON OF DEPORTATION.  IN SHORT, THE EXPATRIATE HAS LOST THE RIGHT
TO HAVE RIGHTS."  TROP V. DULLES, 356 U.S.,AT 101-102. 

/16/  "THE PHRASE IN OUR CONSTITUTION WAS TAKEN DIRECTLY FROM THE
ENGLISH DECLARATION OF RIGHTS OF (1689) . . . . "  ID., AT 100. 

/17/  THE SPECIFIC INCIDENT GIVING RISE TO THE PROVISION WAS THE
PERJURY TRIAL OF TITUS OATES IN 1685.  "NONE OF THE PUNISHMENTS
INFLICTED UPON OATES AMOUNTED TO TORTURE.  . . . IN THE CONTEXT OF THE
OATES' CASE, 'CRUEL AND UNUSUAL' SEEMS TO HAVE MEANT A SEVERE
PUNISHMENT UNAUTHORIZED BY STATUTE AND NOT WITHIN THE JURISDICTION OF
THE COURT TO IMPOSE."  GRANUCCI, "NOR CRUEL AND UNUSUAL PUNISHMENTS
INFLICTED:"  THE ORIGINAL MEANING, 57 CALIF.L.REV.  839, 859 (1969). 
THUS, "(THE IRREGULARITY AND ANOMALY OF OATES' TREATMENT WAS EXTREME." 
GOLDBERG & DERSHOWITZ, DECLARING THE DEATH PENALTY UNCONSTITUTIONAL, 83
HARV.L.REV.  1773, 1789 N. 74 (1970).  ALTHOUGH THE ENGLISH PROVISION
WAS INTENDED TO RESTRAIN THE JUDICIAL AND EXECUTIVE POWER, SEE N. 8,
SUPRA, THE PRINCIPLE IS, OF COURSE, FULLY APPLICABLE UNDER OUR CLAUSE,
WHICH IS PRIMARILY A RESTRAINT UPON THE LEGISLATIVE POWER. 

/18/  IN A CASE FROM THE PHILIPPINE TERRITORY, THE COURT STRUCK DOWN
A PUNISHMENT THAT "HAD) NO FELLOW IN AMERICAN LEGISLATION."  WEEMS V.
UNITED STATES, 217 U.S.,AT 377.  AFTER EXAMINING THE PUNISHMENTS
IMPOSED, UNDER BOTH UNITED STATES AND PHILIPPINE LAW, FOR SIMILAR AS
WELL AS MORE SERIOUS CRIMES, ID., AT 380-381, THE COURT DECLARED THAT
THE "CONTRAST" "EXHIBITED) A DIFFERENCE BETWEEN UNRESTRAINED POWER AND
THAT WHICH IS EXERCISED UNDER THE SPIRIT OF CONSTITUTIONAL LIMITATIONS
FORMED TO ESTABLISH JUSTICE," ID., AT 381.  AND IN TROP V. DULLES,
SUPRA, IN WHICH A LAW OF CONGRESS PUNISHING WARTIME DESERTION BY
EXPATRIATION WAS HELD UNCONSTITUTIONAL, IT WAS EMPHASIZED THAT "(THE
CIVILIZED NATIONS OF THE WORLD ARE IN VIRTUAL UNANIMITY THAT
STATELESSNESS IS NOT TO BE IMPOSED AS PUNISHMENT FOR CRIME."  ID., AT
102.  WHEN A SEVERE PUNISHMENT IS NOT INFLICTED ELSEWHERE, OR WHEN MORE
SERIOUS CRIMES ARE PUNISHED LESS SEVERELY, THERE IS A STRONG INFERENCE
THAT THE STATE IS EXERCISING ARBITRARY, "UNRESTRAINED POWER." 

/19/  IN WEEMS V. UNITED STATES, SUPRA, AT 369-370, THE COURT
SUMMARIZED THE HOLDING OF WILKERSON V. UTAH, 99 U.S. 130 (1879), AS
FOLLOWS: 

"THE COURT POINTED OUT THAT DEATH WAS AN USUAL PUNISHMENT FOR
MURDER, THAT IT PREVAILED IN THE TERRITORY FOR MANY YEARS, AND WAS
INFLICTED BY SHOOTING, ALSO THAT THAT MODE OF EXECUTION WAS USUAL UNDER
MILITARY LAW.  IT WAS HENCE CONCLUDED THAT IT WAS NOT FORBIDDEN BY THE
CONSTITUTION OF THE UNITED STATES AS CRUEL OR UNUSUAL." 

/20/  IT WAS SAID IN TROP V. DULLES, SUPRA, AT 100-101, N. 32, THAT
"(ON THE FEW OCCASIONS THIS COURT HAS HAD TO CONSIDER THE MEANING OF
THE (CLAUSE), PRECISE DISTINCTIONS BETWEEN CRUELTY AND UNUSUALNESS DO
NOT SEEM TO HAVE DRAWN.  . . . IF THE WORD 'UNUSUAL' IS TO HAVE ANY
MEANING APART FROM THE WORD 'CRUEL,' HOWEVER, THE MEANING SHOULD BE THE
ORDINARY ONE, SIGNIFYING SOMETHING DIFFERENT FROM THAT WHICH IS
GENERALLY DONE."  THERE ARE OTHER STATEMENTS IN PRIOR CASES INDICATING
THAT THE WORD "UNUSUAL" HAS A DISTINCT MEANING: 

"WE PERCEIVE NOTHING . . . UNUSUAL IN THIS (PUNISHMENT)."  PERVEAR
V. THE COMMONWEALTH, 5 WALL.  475, 480 (1867).  "(THE JUDGMENT OF
MANKIND WOULD BE THAT THE PUNISHMENT WAS NOT ONLY AN UNUSUAL BUT A
CRUEL ONE.  . . . "  O'NEIL V. VERMONT, 144 U.S. 323, 340 (1892) (FIELD
J., DISSENTING).  "IT IS UNUSUAL IN ITS CHARACTER."  WEEMS V. UNITED
STATES, SUPRA, AT 377.  "AND THE PUNISHMENT INFLICTED . . . IS
CERTAINLY UNUSUAL."  UNITED STATES EX REL. MILWAUKEE SOCIAL DEMOCRATIC
PUB. CO. V. BURLESON, 255 U.S. 407, 430 (1921) (BRANDEIS, J.,
DISSENTING).  "THE PUNISHMENT INFLICTED IS NOT ONLY UNUSUAL IN
CHARACTER; IT IS, SO FAR AS KNOWN, UNPRECEDENTED IN AMERICAN LEGAL
HISTORY."  ID., AT 435.  "THERE IS NO PRECEDENT FOR IT.  WHAT THEN IS
IT, IF IT BE NOT CRUEL, UNUSUAL AND UNLAWFUL?"  LOUISIANA EX REL.
FRANCIS V. RESWEBER, 329 U.S. 459, 479 (1947) (BURTON, J.,
DISSENTING).  "TO BE SURE, IMPRISONMENT FOR NINETY DAYS IS NOT, IN THE
ABSTRACT, A PUNISHMENT WHICH IS EITHER CRUEL OR UNUSUAL."  ROBINSON V.
CALIFORNIA, 370 U.S.,AT 667. 

IT IS FAIR TO CONCLUDE FROM THESE STATEMENTS THAT "(WHETHER THE WORD
'UNUSUAL' HAS ANY QUALITATIVE MEANING DIFFERENT FROM 'CRUEL' IS NOT
CLEAR."  TROP V. DULLES, SUPRA, AT 100 N. 32.  THE QUESTION, IN ANY
EVENT, IS OF MINOR SIGNIFICANCE; THIS COURT HAS NEVER ATTEMPTED TO
EXPLICATE THE MEANING OF THE CLAUSE SIMPLY BY PARSING ITS WORDS. 

/21/  THE DANGER OF SUBJECTIVE JUDGMENT IS ACUTE IF THE QUESTION POSED
IS WHETHER A PUNISHMENT "SHOCKS THE MOST FUNDAMENTAL INSTINCTS OF
CIVILIZED MAN," LOUISIANA EX REL. FRANCIS V. RESWEBER, SUPRA, AT 473
(BURTON, J., DISSENTING), OR WHETHER "ANY MAN OF RIGHT FEELING AND
HEART CAN REFRAIN FROM SHUDDERING," O'NEIL V. VERMONT, SUPRA, AT 340
(FIELD, J., DISSENTING), OR WHETHER "A CRY OF HORROR WOULD RISE FROM
EVERY CIVILIZED AND CHRISTIAN COMMUNITY OF THE COUNTRY," IBID.  MR.
JUSTICE FRANKFURTER'S CONCURRING OPINION IN LOUISIANA EX REL. FRANCIS
V. RESWEBER, SUPRA, IS INSTRUCTIVE.  HE WARNED "AGAINST FINDING IN
PERSONAL DISAPPROVAL A REFLECTION OF MORE OR LESS PREVAILING
CONDEMNATION" AND AGAINST "ENFORCING . . . PRIVATE VIEWS) RATHER THAN
THAT CONSENSUS OF SOCIETY'S OPINION WHICH, FOR PURPOSES OF DUE PROCESS,
IS THE STANDARD ENJOINED BY THE CONSTITUTION."  ID., AT 471.  HIS
CONCLUSIONS WERE AS FOLLOWS:  "I CANNOT BRING MYSELF TO BELIEVE THAT
(THE STATE'S PROCEDURE) . . . OFFENDS A PRINCIPLE OF JUSTICE 'ROOTED IN
THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE.'"  ID., AT 470.  " . . . I
CANNOT SAY THAT IT WOULD BE 'REPUGNANT TO THE CONSCIENCE OF MANKIND.'" 
ID., AT 471.  YET NOWHERE IN THE OPINION IS THERE ANY EXPLANATION OF
HOW HE ARRIVED AT THOSE CONCLUSIONS. 

/22/  CF. LOUISIANA EX REL. FRANCIS V. RESWEBER, SUPRA, AT 463:
"THE TRADITIONAL HUMANITY OF MODERN ANGLO-AMERICAN LAW FORBIDS THE
INFLICTION OF UNNECESSARY PAIN IN THE EXECUTION OF THE DEATH
SENTENCE." 

/23/  IT MAY, IN FACT, HAVE APPEARED EARLIER.  IN PERVEAR V. THE
COMMONWEALTH, 5 WALL.,AT 480, THE COURT STATED: 

"WE PERCEIVE NOTHING EXCESSIVE, OR CRUEL, OR UNUSUAL IN THIS
(PUNISHMENT).  THE OBJECT OF THE LAW WAS TO PROTECT THE COMMUNITY
AGAINST THE MANIFOLD EVILS OF INTEMPERANCE.  THE MODE ADOPTED, OF
PROHIBITING UNDER PENALTIES THE SALE AND KEEPING FOR SALE OF
INTOXICATING LIQUORS, WITHOUT LICENSE, IS THE USUAL MODE ADOPTED IN
MANY, PERHAPS, ALL OF THE STATES.  IT IS WHOLLY WITHIN THE DISCRETION
OF STATE LEGISLATURES." 

THIS DISCUSSION SUGGESTS THAT THE COURT VIEWED THE PUNISHMENT AS
REASONABLY RELATED TO THE PURPOSES FOR WHICH IT WAS INFLICTED. 

/24/  MR. JUSTICE FIELD APPARENTLY BASED HIS CONCLUSION UPON AN
INTUITIVE SENSE THAT THE PUNISHMENT WAS DISPROPORTIONATE TO THE
CRIMINAL'S MORAL GUILT, ALTHOUGH HE ALSO OBSERVED THAT "THE PUNISHMENT
WAS GREATLY BEYOND ANYTHING REQUIRED BY ANY HUMANE LAW FOR THE
OFFENCES," O'NEIL V. VERMONT, 144 U.S.,AT 340.  CF. TROP V. DULLES, 356
U.S.,AT 99:  "SINCE WARTIME DESERTION IS PUNISHABLE BY DEATH, THERE CAN
BE NO ARGUMENT THAT THE PENALTY OF DENATIONALIZATION IS EXCESSIVE IN
RELATION TO THE GRAVITY OF THE CRIME." 

/25/  "THE STATE THEREBY SUFFERS NOTHING AND LOSES NO POWER.  THE
PURPOSE OF PUNISHMENT IS FULFILLED, CRIME IS REPRESSED BY PENALTIES OF
JUST, NOT TORMENTING, SEVERITY, ITS REPETITION IS PREVENTED, AND HOPE
IS GIVEN FOR THE REFORMATION OF THE CRIMINAL."  WEEMS V. UNITED STATES,
217 U.S.,AT 381. 

/26/  THE PRINCIPLE THAT A SEVERE PUNISHMENT MUST NOT BE EXCESSIVE
DOES NOT, OF COURSE, MEAN THAT A SEVERE PUNISHMENT IS CONSTITUTIONAL
MERELY BECAUSE IT IS NECESSARY.  A STATE COULD NOT NOW, FOR EXAMPLE,
INFLICT A PUNISHMENT CONDEMNED BY HISTORY, FOR ANY SUCH PUNISHMENT, NO
MATTER HOW NECESSARY, WOULD BE INTOLERABLY OFFENSIVE TO HUMAN DIGNITY. 
THE POINT IS SIMPLY THAT THE UNNECESSARY INFLICTION OF SUFFERING IS
ALSO OFFENSIVE TO HUMAN DIGNITY. 

/27/  THE FIFTH AMENDMENT PROVIDES:  "NO PERSON SHALL BE HELD TO
ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A
PRESENTMENT OR INDICTMENT OF A GRAND JURY . . .; NOR SHALL ANY PERSON
BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR
LIMB; . . . NOR BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE
PROCESS OF LAW . . . " 

/28/  NO ONE, OF COURSE, NOW CONTENDS THAT THE REFERENCE IN THE
FIFTH AMENDMENT TO "JEOPARDY OF . . . LIMB" PROVIDES PERPETUAL
CONSTITUTIONAL SANCTION FOR SUCH CORPORAL PUNISHMENTS AS BRANDING AND
EARCROPPING, WHICH WERE COMMON PUNISHMENTS WHEN THE BILL OF RIGHTS WAS
ADOPTED.  BUT CF. N. 29, INFRA.  AS THE CALIFORNIA SUPREME COURT
POINTED OUT WITH RESPECT TO THE CALIFORNIA CONSTITUTION: 

"THE CONSTITUTION EXPRESSLY PROSCRIBES CRUEL OR UNUSUAL
PUNISHMENTS.  IT WOULD BE MERE SPECULATION AND CONJECTURE TO ASCRIBE TO
THE FRAMERS AN INTENT TO EXEMPT CAPITAL PUNISHMENT FROM THE COMPASS OF
THAT PROVISION SOLELY BECAUSE AT A TIME WHEN THE DEATH PENALTY WAS
COMMONLY ACCEPTED THEY PROVIDED ELSEWHERE IN THE CONSTITUTION FOR
SPECIAL SAFEGUARDS IN ITS APPLICATION."  PEOPLE V. ANDERSON, 6 CAL.3D
628, 639, 493 P.2D 880, 887 (1972). 

/29/  CF. MCGAUTHA V. CALIFORNIA, 402 U.S. 183, 226 (1971) (SEPARATE
OPINION OF BLACK, J.): 

"THE (CLAUSE) FORBIDS 'CRUEL AND UNUSUAL PUNISHMENTS.'  IN MY VIEW,
THESE WORDS CANNOT BE READ TO OUTLAW CAPITAL PUNISHMENT BECAUSE THAT
PENALTY WAS IN COMMON USE AND AUTHORIZED BY LAW HERE AND IN THE
COUNTRIES FROM WHICH OUR ANCESTORS CAME AT THE TIME THE (CLAUSE) WAS
ADOPTED.  IT IS INCONCEIVABLE TO ME THAT THE FRAMERS INTENDED TO END
CAPITAL PUNISHMENT BY THE (CLAUSE)." 

UNDER THIS VIEW, OF COURSE, ANY PUNISHMENT THAT WAS IN COMMON USE IN
1791 IS FOREVER EXEMPT FROM THE CLAUSE. 

/30/  THE COURT EXPRESSLY NOTED THAT THE CONSTITUTIONALITY OF THE
PUNISHMENT ITSELF WAS NOT CHALLENGED.  WILKERSON V. UTAH, 99 U.S.,AT
136-137.  INDEED, IT MAY BE THAT THE ONLY CONTENTION MADE WAS THAT, IN
THE ABSENCE OF STATUTORY SANCTION, THE SENTENCING "COURT POSSESSED NO
AUTHORITY TO PRESCRIBE THE MODE OF EXECUTION."  ID., AT 137. 

/31/  CF. MCELVAINE V. BRUSH, 142 U.S. 155, 158-159 (1891): 

"WE HELD IN THE CASE OF KEMMLER . . . THAT AS THE LEGISLATURE OF THE
STATE OF NEW YORK HAD DETERMINED THAT (ELECTROCUTION) DID NOT INFLICT
CRUEL AND UNUSUAL PUNISHMENT, AND ITS COURTS HAD SUSTAINED THAT
DETERMINATION, WE WERE UNABLE TO PERCEIVE THAT THE STATE HAD THEREBY
ABRIDGED THE PRIVILEGES OR IMMUNITIES OF PETITIONER OR DEPRIVED HIM OF
DUE PROCESS OF LAW." 

/32/  IT WAS ALSO ASSERTED THAT THE CONSTITUTION PROHIBITS "CRUELTY
INHERENT IN THE METHOD OF PUNISHMENT," BUT DOES NOT PROHIBIT "THE
NECESSARY SUFFERING INVOLVED IN ANY METHOD EMPLOYED TO EXTINGUISH LIFE
HUMANELY."  329 U.S.,AT 464.  NO AUTHORITY WAS CITED FOR THIS
ASSERTION, AND, IN ANY EVENT, THE DISTINCTION DRAWN APPEARS TO BE
MEANINGLESS. 

/33/  IN A NONDEATH CASE, TROP V. DULLES, IT WAS SAID THAT "IN A DAY
WHEN IT IS STILL WIDELY ACCEPTED, (DEATH) CANNOT BE SAID TO VIOLATE THE
CONSTITUTIONAL CONCEPT OF CRUELTY."  356 U.S.,AT 99.  THIS STATEMENT,
OF COURSE, LEFT OPEN THE FUTURE CONSTITUTIONALITY OF THE PUNISHMENT. 

/34/  "THAT LIFE IS AT STAKE IS OF COURSE ANOTHER IMPORTANT FACTOR
IN CREATING THE EXTRAORDINARY SITUATION.  THE DIFFERENCE BETWEEN
CAPITAL AND NON-CAPITAL OFFENSES IS THE BASIS OF DIFFERENTIATION IN LAW
IN DIVERSE WAYS IN WHICH THE DISTINCTION BECOMES RELEVANT."  WILLIAMS
V. GEORGIA, 349 U.S. 375, 391 (1955) (FRANKFURTER, J.).  "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."  STEIN V. NEW YORK, 346 U.S.
156, 196 (1953) (JACKSON, J.).  "IN DEATH CASES DOUBTS SUCH AS THOSE
PRESENTED HERE SHOULD BE RESOLVED IN FAVOR OF THE ACCUSED."  ANDRES V.
UNITED STATES, 333 U.S. 740, 752 (1948) (REED, J.).  MR. JUSTICE HARLAN
EXPRESSED THE POINT STRONGLY:  "I DO NOT CONCEDE THAT WHATEVER PROCESS
IS 'DUE' AN OFFENDER FACED WITH A FINE OR A PRISON SENTENCE NECESSARILY
SATISFIES THE REQUIREMENTS OF THE CONSTITUTION IN A CAPITAL CASE.  THE
DISTINCTION IS BY NO MEANS NOVEL, . . . NOR IS IT NEGLIGIBLE, BEING
LITERALLY THAT BETWEEN LIFE AND DEATH."  REID V. COVERT, 354 U.S. 1, 77
(1957) (CONCURRING IN RESULT).  AND, OF COURSE, FOR MANY YEARS THIS
COURT DISTINGUISHED DEATH CASES FROM ALL OTHERS FOR PURPOSES OF THE
CONSTITUTIONAL RIGHT TO COUNSEL.  SEE POWELL V. ALABAMA, 287 U.S. 45
(1932); BETTS V. BRADY, 316 U.S. 455 (1942); BUTE V. ILLINOIS, 333 U.S.
640 (1948). 

/35/  SEE REPORT OF ROYAL COMMISSION ON CAPITAL PUNISHMENT 1949
1953, PARAS. 700-789, PP. 246-273 (1953; HEARINGS ON S. 1760 BEFORE THE
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF THE SENATE COMMITTEE ON
THE JUDICIARY, 90TH CONG., 2D SESS., 19-21 (1968) (TESTIMONY OF CLINTON
DUFFY); H. BARNES & N. TEETERS, NEW HORIZONS IN CRIMINOLOGY 306-309 (3D
ED. 1959); C. CHESSMAN, TRIAL BY ORDEAL 195-202 (1955); M. DISALLE, THE
POWER OF LIFE AND DEATH 84-85 (1965); C. DUFFY & A. HIRSCHBERG, 88 MEN
AND 2 WOMEN 13-14 (1962); B. ESHELMAN, DEATH ROW CHAPLAIN 26-29, 101
104, 159-164 (1962); R. HAMMER, BETWEEN LIFE AND DEATH 208-212 (1969);
K. LAMOTT, CHRONICLES OF SAN QUENTIN 228-231 (1961); L. LAWES, LIFE AND
DEATH IN SING SING 170-171 (1928); RUBIN, THE SUPREME COURT, CRUEL AND
UNUSUAL PUNISHMENT, AND THE DEATH PENALTY, 15 CRIME & DELIN.  121, 128
129 (1969); COMMENT, THE DEATH PENALTY CASES, 56 CALIF.L.REV.  1268,
1338-1341 (1968); BRIEF AMICI CURIAE FILED BY JAMES V. BENNETT, CLINTON
T. DUFFY, ROBERT G. SARVER, HARRY C. TINSLEY, AND LAWRENCE E. WILSON 12
14. 

/36/  SEE BARNES & TEETERS, SUPRA, AT 309-311 (3D ED. 1959); CAMUS,
REFLECTIONS ON THE GUILLOTINE, IN A. CAMUS, RESISTANCE, REBELLION, AND
DEATH 131, 151-156 (1960); C. DUFFY & A. HIRSCHBERG, SUPRA, AT 68-70,
254 (1962); HAMMER, SUPRA, AT 222-235, 244-250, 269-272 (1969); S.
RUBIN, THE LAW OF CRIMINAL CORRECTION 340 (1963); BLUESTONE & MCGAHEE,
REACTION TO EXTREME STRESS:  IMPENDING DEATH BY EXECUTION, 119
AMER.J.PSYCHIATRY 393 (1962); GOTTLIEB, CAPITAL PUNISHMENT, 15 CRIME &
DELIN.  1, 8-10 (1969); WEST, MEDICINE AND CAPITAL PUNISHMENT, IN
HEARINGS ON S. 1760 BEFORE THE SUBCOMMITTEE ON CRIMINAL LAWS AND
PROCEDURES OF THE SENATE COMMITTEE ON THE JUDICIARY, 90TH CONG., 2D
SESS., 124 (1968); ZIFERSTEIN, CRIME AND PUNISHMENT, THE CENTER
MAGAZINE 84 (JAN. 1968); COMMENT, THE DEATH PENALTY CASES, 56
CALIF.L.REV.  1268, 1342 (1968); NOTE, MENTAL SUFFERING UNDER SENTENCE
OF DEATH:  A CRUEL AND UNUSUAL PUNISHMENT, 57 IOWA L.REV.  814 (1972). 

/37/  THE STATE, OF COURSE, DOES NOT PURPOSELY IMPOSE THE LENGTHY
WAITING PERIOD IN ORDER TO INFLICT FURTHER SUFFERING.  THE IMPACT UPON
THE INDIVIDUAL IS NOT THE LESS SEVERE ON THAT ACCOUNT.  IT IS NO ANSWER
TO ASSERT THAT LONG DELAYS EXIST ONLY BECAUSE CONDEMNED CRIMINALS AVAIL
THEMSELVES OF THEIR FULL PANOPLY OF LEGAL RIGHTS.  THE RIGHT NOT TO BE
SUBJECTED TO INHUMAN TREATMENT CANNOT, OF COURSE, BE PLAYED OFF AGAINST
THE RIGHT TO PURSUE DUE PROCESS OF LAW, BUT, APART FROM THAT, THE PLAIN
TRUTH IS THAT IT IS SOCIETY THAT DEMANDS, EVEN AGAINST THE WISHES OF
THE CRIMINAL, THAT ALL LEGAL AVENUES BE EXPLORED BEFORE THE EXECUTION
IS FINALLY CARRIED OUT. 

/38/  IT WAS RECOGNIZED IN TROP ITSELF THAT EXPATRIATION IS A
"PUNISHMENT SHORT OF DEATH."  356 U.S.,AT 99.  DEATH, HOWEVER, WAS
DISTINGUISHED ON THE GROUND THAT IT WAS "STILL WIDELY ACCEPTED." 
IBID. 

/39/  STEPHEN, CAPITAL PUNISHMENTS, 69 FRASER'S MAGAZINE 753, 763
(1864). 

/40/  FROM 1930 TO 1939:  155, 153, 140, 160, 168, 199, 195, 147,
190, 160.  FROM 1940 TO 1949:  124, 123, 147, 131, 120, 117, 131, 153,
119, 119.  FROM 1950 TO 1959:  82, 105, 83, 62, 81, 76, 65, 65, 49,
49.  FROM 1960 TO 1967:  56, 42, 47, 21, 15, 7, 1, 2.  DEPARTMENT OF
JUSTICE, NATIONAL PRISONER STATISTICS NO. 46, CAPITAL PUNISHMENT 1930
1970, P. 8 (AUG. 1971).  THE LAST EXECUTION IN THE UNITED STATES TOOK
PLACE ON JUNE 2, 1967.  ID., AT 4. 

/41/  1961-- 140; 1962-- 103; 1963-- 93; 1964-- 106; 1965-- 86; 1966--
118; 1967-- 85; 1968-- 102; 1969-- 97; 1970-- 127.  ID., AT 9. 

/42/  COMMUTATIONS AVERAGED ABOUT 18 PER YEAR.  1961-- 17; 1962--
27; 1963-- 16; 1964-- 9; 1965-- 19; 1966-- 17; 1967-- 13; 1968-- 16;
1969-- 20; 1970-- 29.  IBID. 

/43/  TRANSFERS TO MENTAL INSTITUTIONS AVERAGED ABOUT THREE PER
YEAR.  1961-- 3; 1962-- 4; 1963-- 1; 1964-- 3; 1965-- 4; 1966-- 3; 1967
- 3; 1968-- 2; 1969-- 1; 1970-- 5.  IBID. 

/44/  THESE FOUR METHODS OF DISPOSITION AVERAGED ABOUT 44 PER YEAR. 
1961-- 31, 1962-- 30; 1963-- 32; 1964-- 58; 1965-- 39; 1966-- 33; 1967-
53; 1968-- 59; 1969-- 64; 1970-- 42.  IBID.  SPECIFIC FIGURES ARE
AVAILABLE STARTING WITH 1967.  RESENTENCES:  1967-- 7; 1968-- 18; 1969-
12; 1970-- 14.  GRANTS OF NEW TRIALS AND ORDERS FOR RESENTENCING:
1967-- 31; 1968-- 21; 1969-- 13; 1970-- 9.  DISMISSALS OF INDICTMENTS
AND REVERSALS OF CONVICTIONS:  1967-- 12; 1968-- 19; 1969-- 3; 1970--
17.  DEATHS BY SUICIDE AND NATURAL CAUSES:  1967-- 2; 1968-- 1; 1969--
5; 1970-- 2.  NATIONAL PRISONER STATISTICS NO. 42, EXECUTIONS 1930
1967, P. 13 (JUNE 1968); NATIONAL PRISONER STATISTICS NO. 45, CAPITAL
PUNISHMENT 1930-1968, P. 12 (AUG. 1969); NATIONAL PRISONER STATISTICS,
SUPRA, N. 40, AT 14-15. 

/45/  ID., AT 9. 

/46/  DURING THAT 10-YEAR PERIOD, 1,177 PRISONERS ENTERED DEATH ROW,
INCLUDING 120 WHO WERE RETURNED FOLLOWING NEW TRIALS OR TREATMENT AT
MENTAL INSTITUTIONS.  THERE WERE 653 DISPOSITIONS OTHER THAN BY
EXECUTION, LEAVING 524 PRISONERS WHO MIGHT HAVE BEEN EXECUTED, OF WHOM
135 ACTUALLY WERE.  IBID. 

/47/  ID., AT 8. 

/48/  THE VICTIM SURPRISED FURMAN IN THE ACT OF BURGLARIZING THE
VICTIM'S HOME IN THE MIDDLE OF THE NIGHT.  WHILE ESCAPING, FURMAN
KILLED THE VICTIM WITH ONE PISTOL SHOT FIRED THROUGH THE CLOSED KITCHEN
DOOR FROM THE OUTSIDE.  AT THE TRIAL, FURMAN GAVE HIS VERSION OF THE
KILLING: 

"THEY GOT ME CHARGED WITH MURDER AND I ADMIT, I ADMIT GOING TO THESE
FOLKS' HOME AND THEY DID CAUGHT ME IN THERE AND I WAS COMING BACK OUT,
BACKING UP AND THERE WAS A WIRE DOWN THERE ON THE FLOOR.  I WAS COMING
OUT BACKWARDS AND FELL BACK AND I DIDN'T INTEND TO KILL NOBODY.  I
DIDN'T KNOW THEY WAS BEHIND THE DOOR.  THE GUN WENT OFF AND I DIDN'T
KNOW NOTHING ABOUT NO MURDER UNTIL THEY ARRESTED ME, AND WHEN THE GUN
WENT OFF I WAS DOWN ON THE FLOOR AND I GOT UP AND RAN.  THAT'S ALL TO
IT."  APP. 54-55. 

THE GEORGIA SUPREME COURT ACCEPTED THAT VERSION: 

"THE ADMISSION IN OPEN COURT BY THE ACCUSED . . . THAT DURING THE
PERIOD IN WHICH HE WAS INVOLVED IN THE COMMISSION OF A CRIMINAL ACT AT
THE HOME OF THE DECEASED, HE ACCIDENTALLY TRIPPED OVER A WIRE IN
LEAVING THE PREMISES CAUSING THE GUN TO GO OFF, TOGETHER WITH OTHER
FACTS AND CIRCUMSTANCES SURROUNDING THE DEATH OF THE DECEASED BY
VIOLENT MEANS, WAS SUFFICIENT TO SUPPORT THE VERDICT OF GUILTY OF
MURDER.  . . . "  FURMAN V. STATE, 225 GA. 253, 254, 167 S.E.2D 628,
629 (1969). 

ABOUT FURMAN HIMSELF, THE JURY KNEW ONLY THAT HE WAS BLACK AND THAT,
ACCORDING TO HIS STATEMENT AT TRIAL, HE WAS 26 YEARS OLD AND WORKED AT
"SUPERIOR UPHOLSTERY."  APP. 54.  IT TOOK THE JURY ONE HOUR AND 35
MINUTES TO RETURN A VERDICT OF GUILT AND A SENTENCE OF DEATH.  ID., AT
64-65. 

/49/  T. SELLIN, THE DEATH PENALTY, A REPORT FOR THE MODEL PENAL
CODE PROJECT OF THE AMERICAN LAW INSTITUTE 15 (1959). 

/50/  EIGHT STATES STILL EMPLOY HANGING AS THE METHOD OF EXECUTION
AND ONE, UTAH, ALSO EMPLOYS SHOOTING.  THESE NINE STATES HAVE ACCOUNTED
FOR LESS THAN 3% OF THE EXECUTIONS IN THE UNITED STATES SINCE 1930. 
NATIONAL PRISONER STATISTICS, SUPRA, N. 40, AT 10-11. 

/51/  ID., AT 8. 

/52/  ALASKA, HAWAII, IOWA, MAINE, MICHIGAN, MINNESOTA, OREGON, WEST
VIRGINIA, AND WISCONSIN HAVE ABOLISHED DEATH AS A PUNISHMENT FOR
CRIMES.  ID., AT 50.  IN ADDITION, THE CALIFORNIA SUPREME COURT HELD
THE PUNISHMENT UNCONSTITUTIONAL UNDER THE STATE COUNTERPART OF THE
CRUEL AND UNUSUAL PUNISHMENTS CLAUSE.  PEOPLE V. ANDERSON, 6 CAL.3D
628, 493 P.2D 880 (1972). 

/53/  NEW MEXICO, NEW YORK, NORTH DAKOTA, RHODE ISLAND, AND VERMONT
HAVE ALMOST TOTALLY ABOLISHED DEATH AS A PUNISHMENT FOR CRIMES. 
NATIONAL PRISONER STATISTICS, SUPRA, N. 40, 50.  INDEED, THESE FIVE
STATES MIGHT WELL BE CONSIDERED DE FACTO ABOLITION STATES.  NORTH
DAKOTA AND RHODE ISLAND, WHICH RESTRICTED THE PUNISHMENT IN 1915 AND
1852 RESPECTIVELY, HAVE NOT CARRIED OUT AN EXECUTION SINCE AT LEAST
1930, ID., AT 10; NOR HAVE THERE BEEN ANY EXECUTIONS IN NEW YORK,
VERMONT, OR NEW MEXICO SINCE THEY RESTRICTED THE PUNISHMENT IN 1965,
1965, AND 1969 RESPECTIVELY, ID., AT 10-11.  AS OF JANUARY 1, 1971,
NONE OF THE FIVE STATES HAD EVEN A SINGLE PRISONER UNDER SENTENCE OF
DEATH.  ID., AT 18-19. 

IN ADDITION, SIX STATES, WHILE RETAINING THE PUNISHMENT ON THE BOOKS
IN GENERALLY APPLICABLE FORM, HAVE MADE VIRTUALLY NO USE OF IT.  SINCE
1930, IDAHO, MONTANA, NEBRASKA, NEW HAMPSHIRE, SOUTH DAKOTA, AND
WYOMING HAVE CARRIED OUT A TOTAL OF 22 EXECUTIONS.  ID., AT 10-11.  AS
OF JANUARY 1, 1971, THESE SIX STATES HAD A TOTAL OF THREE PRISONERS
UNDER SENTENCES OF DEATH.  ID., AT 18-19.  HENCE, ASSUMING 25
EXECUTIONS IN 42 YEARS, EACH STATE AVERAGED ABOUT ONE EXECUTION EVERY
10 YEARS. 

/54/  THERE IS ALSO THE MORE LIMITED ARGUMENT THAT DEATH IS A
NECESSARY PUNISHMENT WHEN CRIMINALS ARE ALREADY SERVING OR SUBJECT TO A
SENTENCE OF LIFE IMPRISONMENT.  IF THE ONLY PUNISHMENT AVAILABLE IS
FURTHER IMPRISONMENT, IT IS SAID, THOSE CRIMINALS WILL HAVE NOTHING TO
LOSE BY COMMITTING FURTHER CRIMES, AND ACCORDINGLY THE THREAT OF DEATH
IS THE SOLE DETERRENT.  BUT "LIFE" IMPRISONMENT IS A MISNOMER TODAY. 
RARELY, IF EVER, DO CRIMES CARRY A MANDATORY LIFE SENTENCE WITHOUT
POSSIBILITY OF PAROLE.  THAT POSSIBILITY ENSURES THAT CRIMINALS DO NOT
REACH THE POINT WHERE FURTHER CRIMES ARE FREE OF CONSEQUENCES. 
MOREOEVER, IF THIS ARGUMENT IS SIMPLY AN ASSERTION THAT THE THREAT OF
DEATH IS A MORE EFFECTIVE DETERRENT THAN THE THREAT OF INCREASED
IMPRISONMENT BY DENIAL OF RELEASE ON PAROLE, THEN, AS NOTED ABOVE,
THERE IS SIMPLY NO EVIDENCE TO SUPPORT IT. 

MR. JUSTICE STEWART, CONCURRING. 

THE PENALTY OF DEATH DIFFERS FROM ALL OTHER FORMS OF CRIMINAL
PUNISHMENT, NOT IN DEGREE BUT IN KIND.  IT IS UNIQUE IN ITS TOTAL
IRREVOCABILITY.  IT IS UNIQUE IN ITS REJECTION OF REHABILITATION OF THE
CONVICT AS A BASIC PURPOSE OF CRIMINAL JUSTICE.  AND IT IS UNIQUE,
FINALLY, IN ITS ABSOLUTE RENUNCIATION OF ALL THAT IS EMBODIED IN OUR
CONCEPT OF HUMANITY. 

FOR THESE AND OTHER REASONS, AT LEAST TWO OF MY BROTHERS HAVE
CONCLUDED THAT THE INFLICTION OF THE DEATH PENALTY IS CONSTITUTIONALLY
IMPERMISSIBLE IN ALL CIRCUMSTANCES UNDER THE EIGHTH AND FOURTEENTH
AMENDMENTS.  THEIR CASE IS A STRONG ONE.  BUT I FIND IT UNNECESSARY TO
REACH THE ULTIMATE QUESTION THEY WOULD DECIDE.  SEE ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 347 (BRANDEIS, J.,
CONCURRING). 

THE OPINIONS OF OTHER JUSTICES TODAY HAVE SET OUT IN ADMIRABLE AND
THOROUGH DETAIL THE ORIGINS AND JUDICIAL HISTORY OF THE EIGHTH
AMENDMENT'S GUARANTEE AGAINST THE INFLICTION OF CRUEL AND UNUSUAL
PUNISHMENTS, /1/  AND THE ORIGIN AND JUDICIAL HISTORY OF CAPITAL
PUNISHMENT.  /2/  THERE IS THUS NO NEED FOR ME TO REVIEW THE HISTORICAL
MATERIALS HERE, AND WHAT I HAVE TO SAY CAN, THEREFORE, BE BRIEFLY
STATED. 

LEGISLATURES-- STATE AND FEDERAL-- HAVE SOMETIMES SPECIFIED THAT THE
PENALTY OF DEATH SHALL BE THE MANDATORY PUNISHMENT FOR EVERY PERSON
CONVICTED OF ENGAGING IN CERTAIN DESIGNATED CRIMINAL CONDUCT. 
CONGRESS, FOR EXAMPLE, HAS PROVIDED THAT ANYONE CONVICTED OF ACTING AS
A SPY FOR THE ENEMY IN TIME OF WAR SHALL BE PUT TO DEATH.  /3/  THE
RHODE ISLAND LEGISLATURE HAS ORDAINED THE DEATH PENALTY FOR A LIFE TERM
PRISONER WHO COMMITS MURDER.  /4/  MASSACHUSETTS HAS PASSED A LAW
IMPOSING THE DEATH PENALTY UPON ANYONE CONVICTED OF MURDER IN THE
COMMISSION OF A FORCIBLE RAPE.  /5/  AN OHIO LAW IMPOSES THE MANDATORY
PENALTY OF DEATH UPON THE ASSASSIN OF THE PRESIDENT OF THE UNITED
STATES OR THE GOVERNOR OF A STATE.  /6/ 

IF WE WERE REVIEWING DEATH SENTENCES IMPOSED UNDER THESE OR SIMILAR
LAWS, WE WOULD BE FACED WITH THE NEED TO DECIDE WHETHER CAPITAL
PUNISHMENT IS UNCONSTITUTIONAL FOR ALL CRIMES AND UNDER ALL
CIRCUMSTANCES.  WE WOULD NEED TO DECIDE WHETHER A LEGISLATURE-- STATE
OR FEDERAL-- COULD CONSTITUTIONALLY DETERMINE THAT CERTAIN CRIMINAL
CONDUCT IS SO ATROCIOUS THAT SOCIETY'S INTEREST IN DETERENCE AND
RETRIBUTION WHOLLY OUTWEIGHS ANY CONSIDERATIONS OF REFORM OR
REHABILITATION OF THE PERPETRATOR, AND THAT, DESPITE THE INCONCLUSIVE
EMPIRICAL EVIDENCE, /7/  ONLY THE AUTOMATIC PENALTY OF DEATH WILL
PROVIDE MAXIMUM DETERRENCE. 

ON THAT SCORE I WOULD SAY ONLY THAT I CANNOT AGREE THAT RETRIBUTION
IS A CONSTITUTIONALLY IMPERMISSIBLE INGREDIENT IN THE IMPOSITION OF
PUNISHMENT.  THE INSTINCT FOR RETRIBUTION IS PART OF THE NATURE OF MAN,
AND CHANNELING THAT INSTINCT IN THE ADMINISTRATION OF CRIMINAL JUSTICE
SERVES AN IMPORTANT PURPOSE IN PROMPTING THE STABILITY OF A SOCIETY
GOVERNED BY LAW.  WHEN PEOPLE BEGIN TO BELIEVE THAT ORGANIZED SOCIETY
IS UNWILLING OR UNABLE TO IMPOSE UPON CRIMINAL OFFENDERS THE PUNISHMENT
THEY "DESERVE," THEN THERE ARE SOWN THE SEEDS OF ANARCHY-- OF SELF
HELP, VIGILANTE JUSTICE, AND LYNCH LAW.     THE CONSTITUTIONALITY OF
CAPITAL PUNISHMENT IN THE ABSTRACT IS NOT, HOWEVER, BEFORE US IN THESE
CASES.  FOR THE GEORGIA AND TEXAS LEGISLATURES HAVE NOT PROVIDED THAT
THE DEATH PENALTY SHALL BE IMPOSED UPON ALL THOSE WHO ARE FOUND GUILTY
OF FORCIBLE RAPE.  /8/  AND THE GEORGIA LEGISLATURE HAS NOT ORDAINED
THAT DEATH SHALL BE THE AUTOMATIC PUNISHMENT FOR MURDER.  /9/  IN A
WORD, NEITHER STATE HAS MADE A LEGISLATIVE DETERMINATION THAT FORCIBLE
RAPE AND MURDER CAN BE DETERRED ONLY BY IMPOSING THE PENALTY OF DEATH
UPON ALL WHO PERPETRATE THOSE OFFENDERS.  AS MR. JUSTICE WHITE SO
TELLINGLY PUTS IT, THE "LEGISLATIVE WILL IS NOT FRUSTRATED IF THE
PENALTY IS NEVER IMPOSED."  POST, AT 311. 

INSTEAD, THE DEATH SENTENCES NOW BEFORE US ARE THE PRODUCT OF A
LEGAL SYSTEM THAT BRINGS THEM, I BELIEVE, WITHIN THE VERY CORE OF THE
EIGHTH AMENDMENT'S GUARANTEE AGAINST CRUEL AND UNUSUAL PUNISHMENTS, A
GUARANTEE APPLICABLE AGAINST THE STATES THROUGH THE FOURTEENTH
AMENDMENT.  ROBINSON V. CALIFORNIA, 370 U.S. 660.  IN THE FIRST PLACE,
IT IS CLEAR THAT THESE SENTENCES ARE "CRUEL" IN THE SENSE THAT THEY
EXCESSIVELY GO BEYOND, NOT IN DEGREE BUT IN KIND, THE PUNISHMENTS THAT
THE STATE LEGISLATURES HAVE DETERMINED TO BE NECESSARY.  WEEMS V.
UNITED STATES, 217 U.S. 349.  IN THE SECOND PLACE, IT IS EQUALLY CLEAR
THAT THESE SENTENCES ARE "UNUSUAL" IN THE SENSE THAT THE PENALTY OF
DEATH IS INFREQUENTLY IMPOSED FOR MURDER, AND THAT ITS IMPOSITION FOR
RAPE IS EXTRAORDINARILY RARE.  /10/  BUT I DO NOT REST MY CONCLUSION
UPON THESE TWO PROPOSITIONS ALONE. 

THESE DEATH SENTENCES ARE CRUEL AND UNUSUAL IN THE SAME WAY THAT
BEING STRUCK BY LIGHTNING IS CRUEL AND UNUSUAL.  FOR, OF ALL THE PEOPLE
CONVICTED OF RAPES AND MURDERS IN 1967 AND 1968, /11/  MANY JUST AS
REPREHENSIBLE AS THESE, THE PETITIONERS ARE AMONG A CAPRICIOUSLY
SELECTED RANDOM HANDFUL UPON WHOM THE SENTENCE OF DEATH HAS IN FACT
BEEN IMPOSED.  /12/  MY CONCURRING BROTHERS HAVE DEMONSTRATED THAT, IF
ANY BASIS CAN BE DISCERNED FOR THE SELECTION OF THESE FEW TO BE
SENTENCED TO DIE, IT IS THE CONSTITUTIONALLY IMPERMISSIBLE BASIS OF
RACE.  /13/  SEE MCLAUGHLIN V. FLORIDA, 379 U.S. 184.  BUT RACIAL
DISCRIMINATION HAS NOT BEEN PROVED, /14/  AND I PUT IT TO ONE SIDE.  I
SIMPLY CONCLUDE THAT THE EIGHTH AND FOURTEENTH AMENDMENTS CANNOT
TOLERATE THE INFLICTION OF A SENTENCE OF DEATH UNDER LEGAL SYSTEMS THAT
PERMIT THIS UNIQUE PENALTY TO BE SO WANTONLY AND SO FREAKISHLY
IMPOSED. 

FOR THESE REASONS I CONCUR IN THE JUDGMENTS OF THE COURT. 

/1/  SEE DISSENTING OPINION OF THE CHIEF JUSTICE, POST, AT 376-379;
CONCURRING OPINION OF MR. JUSTICE DOUGLAS, ANTE, AT 242-244; CONCURRING
OPINION OF MR. JUSTICE BRENNAN, ANTE, AT 258-269; CONCURRING OPINION OF
MR. JUSTICE MARSHALL, POST, AT 316-328; DISSENTING OPINION OF MR.
JUSTICE BLACKMUN, POST, AT 407-409; DISSENTING OPINION OF MR. JUSTICE
POWELL, POST, AT 421-427. 

/2/  SEE DISSENTING OPINION OF THE CHIEF JUSTICE, POST, AT 380;
CONCURRING OPINION OF MR. JUSTICE BRENNAN, ANTE, AT 282-285; CONCURRING
OPINION OF MR. JUSTICE MARSHALL, POST, AT 333-341; DISSENTING OPINION
OF MR. JUSTICE POWELL, POST, AT 421-424. 

/3/  10 U.S.C. 906. 

/4/  R.I. GEN. LAWS ANN. SEC. 11-23-2. 

/5/  MASS. GEN. LAWS ANN., C. 265, SEC. 2. 

/6/  OHIO REV. CODE ANN., TIT. 29, SECS. 2901.09 AND 2901.10. 

/7/  MANY STATISTICAL STUDIES-- COMPARING CRIME RATES IN
JURISDICTIONS WITH AND WITHOUT CAPITAL PUNISHMENT AND IN JURISDICTIONS
BEFORE AND AFTER ABOLITION OF CAPITAL PUNISHMENT-- HAVE INDICATED THAT
THERE IS LITTLE, IF ANY, MEASURABLE DETERRENT EFFECT.  SEE H. BEDAU,
THE DEATH PENALTY IN AMERICA 258-332 (1967 REV. ED.).  THERE REMAINS
UNCERTAINTY, HOWEVER, BECAUSE OF THE DIFFICULTY OF IDENTIFYING AND
HOLDING CONSTANT ALL OTHER RELEVANT VARIABLES.  SEE COMMENT, THE DEATH
PENALTY CASES, 56 CALIF.L.REV.  1268, 1275-1292.  SEE ALSO DISSENTING
OPINION OF THE CHIEF JUSTICE, POST, AT 395; CONCURRING OPINION OF MR.
JUSTICE MARSHALL, POST, AT 346-354. 

/8/  GEORGIA LAW, AT THE TIME OF THE CONVICTION AND SENTENCING OF
THE PETITIONER IN NO. 69-5030, LEFT THE JURY A CHOICE BETWEEN THE DEATH
PENALTY, LIFE IMPRISONMENT, OR "IMPRISONMENT AND LABOR IN THE
PENITENTIARY FOR NOT LESS THAN ONE YEAR NOR MORE THAN 20 YEARS."  GA.
CODE ANN. SEC. 26-1302 (SUPP. 1971) (EFFECTIVE PRIOR TO JULY 1, 1969). 
THE CURRENT GEORGIA PROVISION FOR THE PUNISHMENT OF FORCIBLE RAPE
CONTINUES TO LEAVE THE SAME BROAD SENTENCING LEEWAY.  GA. CRIM. CODE
SEC. 26-2001 (1971 REV.) (EFFECTIVE JULY 1, 1969).  TEXAS LAW, UNDER
WHICH THE PETITIONER IN NO. 69-5031 WAS SENTENCED, PROVIDES THAT A
"PERSON GUILTY OF RAPE SHALL BE PUNISHED BY DEATH OR BY CONFINEMENT IN
THE PENITENTIARY FOR LIFE, OR FOR ANY TERM OF YEARS NOT LESS THAN
FIVE."  TEXAS PENAL CODE, ART. 1189. 

/9/  GEORGIA LAW, UNDER WHICH THE PETITIONER IN NO. 69-5003, WAS
SENTENCED, LEFT THE JURY A CHOICE BETWEEN THE DEATH PENALTY AND LIFE
IMPRISONMENT.  GA. CODE ANN. SEC. 26-1005 (SUPP. 1971) (EFFECTIVE PRIOR
TO JULY 1, 1969).  CURRENT GEORGIA LAW PROVIDES FOR SIMILAR SENTENCING
LEEWAY.  GA. CRIM. CODE SEC. 26-1101 (1971 REV.) (EFFECTIVE JULY 1,
1969). 

/10/  SEE DISSENTING OPINION OF THE CHIEF JUSTICE, POST, AT 386-387,
N. 11; CONCURRING OPINION OF MR. JUSTICE BRENNAN, ANTE, AT 291-293. 

/11/  PETITIONER BRANCH WAS SENTENCED TO DEATH IN A TEXAS COURT ON
JULY 26, 1967.  PETITIONER FURMAN WAS SENTENCED TO DEATH IN A GEORGIA
COURT ON SEPTEMBER 20, 1968.  PETITIONER JACKSON WAS SENTENCED TO DEATH
IN A GEORGIA COURT ON DECEMBER 10, 1968. 

/12/  A FORMER UNITED STATES ATTORNEY GENERAL HAS TESTIFIED BEFORE
THE CONGRESS THAT ONLY A "SMALL AND CAPRICIOUS SELECTION OF OFFENDERS
HAVE BEEN PUT TO DEATH.  MOST PERSONS CONVICTED OF THE SAME CRIMES HAVE
BEEN IMPRISONED."  STATEMENT BY ATTORNEY GENERAL CLARK IN HEARINGS ON
S. 1760 BEFORE THE SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF THE
SENATE COMMITTEE ON THE JUDICIARY, 90TH CONG., 2D SESS., 93. 

IN MCGAUTHA V. CALIFORNIA, 402 U.S. 183, THE COURT DEALT WITH CLAIMS
UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT.  WE EXPRESSLY DECLINED IN THAT CASE TO CONSIDER CLAIMS UNDER
THE CONSTITUTIONAL GUARANTEE AGAINST CRUEL AND UNUSUAL PUNISHMENTS. 
SEE 398 U.S. 936 (LIMITED GRANT OF CERTIORARI). 

/13/  SEE CONCURRING OPINION OF MR. JUSTICE DOUGLAS, ANTE, AT 249
251; CONCURRING OPINION OF MR. JUSTICE MARSHALL, POST, AT 366 N. 155. 

/14/  CF. NOTE, A STUDY OF THE CALIFORNIA PENALTY JURY IN FIRST
DEGREE-MURDER CASES, 21 STAN.L.REV.  1297 (1969); DISSENTING OPINION OF
THE CHIEF JUSTICE, POST, AT 389-390, N. 12. 

MR. JUSTICE WHITE, CONCURRING. 

THE FACIAL CONSTITUTIONALITY OF STATUTES REQUIRING THE IMPOSITION OF
THE DEATH PENALTY FOR FIRST-DEGREE MURDER, FOR MORE NARROWLY DEFINED
CATEGORIES OF MURDER, OR FOR RAPE WOULD PRESENT QUITE DIFFERENT ISSUES
UNDER THE EIGHTH AMENDMENT THAN ARE POSED BY THE CASES BEFORE US.  IN
JOINING THE COURT'S JUDGMENTS, THEREFORE, I DO NOT AT ALL INTIMATE THAT
THE DEATH PENALTY IS UNCONSTITUTIONAL PER SE OR THAT THERE IS NO SYSTEM
OF CAPITAL PUNISHMENT THAT WOULD COMPORT WITH THE EIGHTH AMENDMENT. 
THAT QUESTION, ABLY ARGUED BY SEVERAL OF MY BRETHREN, IS NOT PRESENTED
BY THESE CASES AND NEED NOT BE DECIDED. 

THE NARROWER QUESTION TO WHICH I ADDRESS MYSELF CONCERNS THE
CONSTITUTIONALITY OF CAPITAL PUNISHMENT STATUTES UNDER WHICH (1) THE
LEGISLATURE AUTHORIZES THE IMPOSITION OF THE DEATH PENALTY FOR MURDER
OR RAPE; (2) THE LEGISLATURE DOES NOT ITSELF MANDATE THE PENALTY IN ANY
PARTICULAR CLASS OR KIND OF CASE (THAT IS, LEGISLATIVE WILL IS NOT
FRUSTRATED IF THE PENALTY IS NEVER IMPOSED), BUT DELEGATES TO JUDGES OR
JURIES THE DECISIONS AS TO THOSE CASES, IF ANY, IN WHICH THE PENALTY
WILL BE UTILIZED; AND (3) JUDGES AND JURIES HAVE ORDERED THE DEATH
PENALTY WITH SUCH INFREQUENCY THAT THE ODDS ARE NOW VERY MUCH AGAINST
IMPOSITION AND EXECUTION OF THE PENALTY WITH RESPECT TO ANY CONVICTED
MURDERER OR RAPIST.  IT IS IN THIS CONTEXT THAT WE MUST CONSIDER
WHETHER THE EXECUTION OF THESE PETITIONERS WOULD VIOLATE THE EIGHTH
AMENDMENT. 

I BEGIN WITH WHAT I CONSIDER A NEAR TRUISM:  THAT THE DEATH PENALTY
COULD SO SELDOM BE IMPOSED THAT IT WOULD CEASE TO BE A CREDIBLE
DETERRENT OR MEASURABLY TO CONTRIBUTE TO ANY OTHER END OF PUNISHMENT IN
THE CRIMINAL JUSTICE SYSTEM.  IT IS PERHAPS TRUE THAT NO MATTER HOW
INFREQUENTLY THOSE CONVICTED OF RAPE OR MURDER ARE EXECUTED, THE
PENALTY SO IMPOSED IS NOT DISPROPORTIONATE TO THE CRIME AND THOSE
EXECUTED MAY DESERVE EXACTLY WHAT THEY RECEIVED.  IT WOULD ALSO BE
CLEAR THAT EXECUTED DEFENDANTS ARE FINALLY AND COMPLETELY INCAPACITATED
FROM AGAIN COMMITTING RAPE OR MURDER OR ANY OTHER CRIME.  BUT WHEN
IMPOSITION OF THE PENALTY REACHES A CERTAIN DEGREE OF INFREQUENCY, IT
WOULD BE VERY DOUBTFUL THAT ANY EXISTING GENERAL NEED FOR RETRIBUTION
WOULD BE MEASURABLY SATISFIED.  NOR COULD IT BE SAID WITH CONFIDENCE
THAT SOCIETY'S NEED FOR SPECIFIC DETERRENCE JUSTIFIES DEATH FOR A FEW
WHEN FOR SO MANY IN LIKE CIRCUMSTANCES LIFE IMPRISONMENT OR SHORTER
PRISON TERMS ARE JUDGED SUFFICIENT, OR THAT COMMUNITY VALUES ARE
MEASURABLY REINFORCED BY AUTHORIZING A PENALTY SO RARELY INVOKED. 

MOST IMPORTANT, A MAJOR GOAL OF THE CRIMINAL LAW-- TO DETER OTHERS
BY PUNISHING THE CONVICTED CRIMINAL-- WOULD NOT BE SUBSTANTIALLY SERVED
WHERE THE PENALTY IS SO SELDOM INVOKED THAT IT CEASES TO BE THE
CREDIBLE THREAT ESSENTIAL TO INFLUENCE THE CONDUCT OF OTHERS.  FOR
PRESENT PURPOSES I ACCEPT THE MORALITY AND UTILITY OF PUNISHING ONE
PERSON TO INFLUENCE ANOTHER.  I ACCEPT ALSO THE EFFECTIVENESS OF
PUNISHMENT GENERALLY AND NEED NOT REJECT THE DEATH PENALTY AS A MORE
EFFECTIVE DETERRENT THAN A LESSER PUNISHMENT.  BUT COMMON SENSE AND
EXPERIENCE TELL US THAT SELDOM-ENFORCED LAWS BECOME INEFFECTIVE
MEASURES FOR CONTROLLING HUMAN CONDUCT AND THAT THE DEATH PENALTY,
UNLESS IMPOSED WITH SUFFICIENT FREQUENCY, WILL MAKE LITTLE CONTRIBUTION
TO DETERRING THOSE CRIMES FOR WHICH IT MAY BE EXACTED. 

THE IMPOSITION AND EXECUTION OF THE DEATH PENALTY ARE OBVIOUSLY
CRUEL IN THE DICTIONARY SENSE.  BUT THE PENALTY HAS NOT BEEN CONSIDERED
CRUEL AND UNUSUAL PUNISHMENT IN THE CONSTITUTIONAL SENSE BECAUSE IT WAS
THOUGHT JUSTIFIED BY THE SOCIAL ENDS IT WAS DEEMED TO SERVE.  AT THE
MOMENT THAT IT CEASES REALISTICALLY TO FURTHER THESE PURPOSES, HOWEVER,
THE EMERGING QUESTION IS WHETHER ITS IMPOSITION IN SUCH CIRCUMSTANCES
WOULD VIOLATE THE EIGHTH AMENDMENT.  IT IS MY VIEW THAT IT WOULD, FOR
ITS IMPOSITION WOULD THEN BE THE POINTLESS AND NEEDLESS EXTINCTION OF
LIFE WITH ONLY MARGINAL CONTRIBUTIONS TO ANY DISCERNIBLE SOCIAL OR
PUBLIC PURPOSES.  A PENALTY WITH SUCH NEGLIGIBLE RETURNS TO THE STATE
WOULD BE PATENTLY EXCESSIVE AND CRUEL AND UNUSUAL PUNISHMENT VIOLATIVE
OF THE EIGHTH AMENDMENT. 

IT IS ALSO MY JUDGMENT THAT THIS POINT HAS BEEN REACHED WITH RESPECT
TO CAPITAL PUNISHMENT AS IT IS PRESENTLY ADMINISTERED UNDER THE
STATUTES INVOLVED IN THESE CASES.  CONCEDEDLY, IT IS DIFFICULT TO PROVE
AS A GENERAL PROPOSITION THAT CAPITAL PUNISHMENT, HOWEVER ADMINISTERED,
MORE EFFECTIVELY SERVES THE ENDS OF THE CRIMINAL LAW THAN DOES
IMPRISONMENT.  BUT HOWEVER THAT MAY BE, I CANNOT AVOID THE CONCLUSION
THAT AS THE STATUTES BEFORE US ARE NOW ADMINISTERED, THE PENALTY IS SO
INFREQUENTLY IMPOSED THAT THE THREAT OF EXECUTION IS TOO ATTENUATED TO
BE OF SUBSTANTIAL SERVICE TO CRIMINAL JUSTICE. 

I NEED NOT RESTATE THE FACTS AND FIGURES THAT APPEAR IN THE OPINIONS
OF MY BRETHREN.  NOR CAN I "PROVE" MY CONCLUSION FROM THESE DATA.  BUT,
LIKE MY BRETHREN, I MUST ARRIVE AT JUDGMENT; AND I CAN DO NO MORE THAN
STATE A CONCLUSION BASED ON 10 YEARS OF ALMOST DAILY EXPOSURE TO THE
FACTS AND CIRCUMSTANCES OF HUNDREDS AND HUNDREDS OF FEDERAL AND STATE
CRIMINAL CASES INVOLVING CRIMES FOR WHICH DEATH IS THE AUTHORIZED
PENALTY.  THAT CONCLUSION, AS I HAVE SAID, IS THAT THE DEATH PENALTY IS
EXACTED WITH GREAT INFREQUENCY EVEN FOR THE MOST ATROCIOUS CRIMES AND
THAT THERE IS NO MEANINGFUL BASIS FOR DISTINGUISHING THE FEW CASES IN
WHICH IT IS IMPOSED FROM THE MANY CASES IN WHICH IT IS NOT.  THE SHORT
OF IT IS THAT THE POLICY OF VESTING SENTENCING AUTHORITY PRIMARILY IN
JURIES-- A DECISION LARGELY VOTIVATED BY THE DESIRE TO MITIGATE THE
HARSHNESS OF THE LAW AND TO BRING COMMUNITY JUDGMENT TO BEAR ON THE
SENTENCE AS WELL AS GUILT OR INNOCENCE-- HAS SO EFFECTIVELY ACHIEVED
ITS AIMS THAT CAPITAL PUNISHMENT WITHIN THE CONFINES OF THE STATUTES
NOW BEFORE US HAS FOR ALL PRACTICAL PURPOSES RUN ITS COURSE. 

JUDICIAL REVIEW, BY DEFINITION, OFTEN INVOLVES A CONFLICT BETWEEN
JUDICIAL AND LEGISLATIVE JUDGMENT AS TO WHAT THE CONSTITUTION MEANS OR
REQUIRES.  IN THIS RESPECT, EIGHTH AMENDMENT CASES COME TO US IN NO
DIFFERENT POSTURE.  IT SEEMS CONCEDED BY ALL THAT THE AMENDMENT IMPOSES
SOME OBLIGATIONS ON THE JUDICIARY TO JUDGE THE CONSTITUTIONALITY OF
PUNISHMENT AND THAT THERE ARE PUNISHMENTS THAT THE AMENDMENT WOULD BAR
WHETHER LEGISLATIVELY APPROVED OR NOT.  INEVITABLY, THEN, THERE WILL BE
OCCASIONS WHEN WE WILL DIFFER WITH CONGRESS OR STATE LEGISLATURES WITH
RESPECT TO THE VALIDITY OF PUNISHMENT.  THERE WILL ALSO BE CASES IN
WHICH WE SHALL STRONGLY DISAGREE AMONG OURSELVES.  UNFORTUNATELY, THIS
IS ONE OF THEM.  BUT AS I SEE IT, THIS CASE IS NO DIFFERENT IN KIND
FROM MANY OTHERS, ALTHOUGH IT MAY HAVE WIDER IMPACT AND PROVOKE SHARPER
DISAGREEMENT. 

IN THIS RESPECT, I ADD ONLY THAT PAST AND PRESENT LEGISLATIVE
JUDGMENT WITH RESPECT TO THE DEATH PENALTY LOSES MUCH OF ITS FORCE WHEN
VIEWED IN LIGHT OF THE RECURRING PRACTICE OF DELEGATING SENTENCING
AUTHORITY TO THE JURY AND THE FACT THAT A JURY, IN ITS OWN DISCRETION
AND WITHOUT VIOLATING ITS TRUST OR ANY STATUTORY POLICY, MAY REFUSE TO
IMPOSE THE DEATH PENALTY NO MATTER WHAT THE CIRCUMSTANCES OF THE
CRIME.  LEGISLATIVE "POLICY" IS THUS NECESSARILY DEFINED NOT BY WHAT IS
LEGISLATIVELY AUTHORIZED BUT BY WHAT JURIES AND JUDGES DO IN EXERCISING
THE DISCRETION SO REGULARLY CONFERRED UPON THEM.  IN MY JUDGMENT WHAT
WAS DONE IN THESE CASES VIOLATED THE EIGHTH AMENDMENT.     I CONCUR IN
THE JUDGMENTS OF THE COURT. 

MR. JUSTICE MARSHALL, CONCURRING. 

THESE THREE CASES PRESENT THE QUESTION WHETHER THE DEATH PENALTY IS
A CRUEL AND UNUSUAL PUNISHMENT PROHIBITED BY THE EIGHTH AMENDMENT TO
THE UNITED STATES CONSTITUTION.  /1/ 

IN NO. 69-5003, FURMAN WAS CONVICTED OF MURDER FOR SHOOTING THE
FATHER OF FIVE CHILDREN WHEN HE DISCOVERED THAT FURMAN HAD BROKEN INTO
HIS HOME EARLY ONE MORNING.  NOS. 69-5030 AND 69-5031 INVOLVE STATE
CONVICTIONS FOR FORCIBLE RAPE.  JACKSON WAS FOUND GUILTY OF RAPE DURING
THE COURSE OF A ROBBERY IN THE VICTIM'S HOME.  THE RAPE WAS
ACCOMPLISHED AS HE HELD THE POINTED ENDS OF SCISSORS AT THE VICTIM'S
THROAT.  BRANCH ALSO WAS CONVICTED OF A RAPE COMMITTED IN THE VICTIM'S
HOME.  NO WEAPON WAS UTILIZED, BUT PHYSICAL FORCE AND THREATS OF
PHYSICAL FORCE WERE EMPLOYED. 

THE CRIMINAL ACTS WITH WHICH WE ARE CONFRONTED ARE UGLY, VICIOUS,
REPREHENSIBLE ACTS.  THEIR SHEER BRUTALITY CANNOT AND SHOULD NOT BE
MINIMIZED.  BUT, WE ARE NOT CALLED UPON TO CONDONE THE PENALIZED
CONDUCT; WE ARE ASKED ONLY TO EXAMINE THE PENALTY IMPOSED ON EACH OF
THE PETITIONERS AND TO DETERMINE WHETHER OR NOT IT VIOLATES THE EIGHTH
AMENDMENT.  THE QUESTION THEN IS NOT WHETHER WE CONDONE RAPE OR MURDER,
FOR SURELY WE DO NOT; IT IS WHETHER CAPITAL PUNISHMENT IS "A PUNISHMENT
NO LONGER CONSISTENT WITH OUR OWN SELF-RESPECT'  /2/  AND, THEREFORE,
VIOLATIVE OF THE EIGHTH AMENDMENT. 

THE ELASTICITY OF THE CONSTITUTIONAL PROVISION UNDER CONSIDERATION
PRESENTS DANGERS OF TOO LITTLE OR TOO MUCH SELF-RESTRAINT.  /3/  HENCE,
WE MUST PROCEED WITH CAUTION TO ANSWER THE QUESTION PRESENTED.  /4/  BY
FIRST EXAMINING THE HISTORICAL DERIVATION OF THE EIGHTH AMENDMENT AND
THE CONSTRUCTION GIVEN IT IN THE PAST BY THIS COURT, AND THEN EXPLORING
THE HISTORY AND ATTRIBUTES OF CAPITAL PUNISHMENT IN THIS COUNTRY, WE
CAN ANSWER THE QUESTION PRESENTED WITH OBJECTIVITY AND A PROPER MEASURE
OF SELF-RESTRAINT. 

CANDOR IS CRITICAL TO SUCH AN INQUIRY.  ALL RELEVANT MATERIAL MUST
BE MARSHALED AND SORTED AND FORTHRIGHTLY EXAMINED.  WE MUST NOT ONLY BE
PRECISE AS TO THE STANDARDS OF JUDGMENT THAT WE ARE UTILIZING, BUT
EXACTING IN EXAMINING THE RELEVANT MATERIAL IN LIGHT OF THOSE
STANDARDS. 

CANDOR COMPELS ME TO CONFESS THAT I AM NOT OBLIVIOUS TO THE FACT
THAT THIS IS TRULY A MATTER OF LIFE AND DEATH.  NOT ONLY DOES IT
INVOLVE THE LIVES OF THESE THREE PETITIONERS, BUT THOSE OF THE ALMOST
600 OTHER CONDEMNED MEN AND WOMEN IN THIS COUNTRY CURRENTLY AWAITING
EXECUTION.  WHILE THIS FACT CANNOT AFFECT OUR ULTIMATE DECISION, IT
NECESSITATES THAT THE DECISION BE FREE FROM ANY POSSIBILITY OF ERROR. 

        I 

THE EIGHTH AMENDMENT'S BAN AGAINST CRUEL AND UNUSUAL PUNISHMENTS
DERIVES FROM ENGLISH LAW.  IN 1583, JOHN WHITGIFT, ARCHBISHOP OF
CANTERBURY, TURNED THE HIGH COMMISSION INTO A PERMANENT ECCLESIASTICAL
COURT, AND THE COMMISSION BEGAN TO USE TORTURE TO EXTRACT CONFESSIONS
FROM PERSONS SUSPECTED OF VARIOUS OFFENSES.  /5/  SIR ROBERT BEALE
PROTESTED THAT CRUEL AND BARBAROUS TORTURE VIOLATED MAGNA CARTA, BUT
HIS PROTESTS WERE MADE IN VAIN.  /6/ 

CRUEL PUNISHMENTS WERE NOT CONFINED TO THOSE ACCUSED OF CRIMES, BUT
WERE NOTORIOUSLY APPLIED WITH EVEN GREATER RELISH TO THOSE WHO WERE
CONVICTED.  BLACKSTONE DESCRIBED IN GHASTLY DETAIL THE MYRIAD OF
INHUMANE FORMS OF PUNISHMENT IMPOSED ON PERSONS FOUND GUILTY OF ANY OF
A LARGE NUMBER OF OFFENSES.  /7/  DEATH, OF COURSE, WAS THE USUAL
RESULT.  /8/ 

THE TREASON TRIALS OF 1685-- THE "BLOODY ASSIZES"-- WHICH FOLLOWED
AN ABORTIVE REBELLION BY THE DUKE OF MONMOUTH, MARKED THE CULMINATION
OF THE PARADE OF HORRORS, AND MOST HISTORIANS BELIEVE THAT IT WAS THIS
EVENT THAT FINALLY SPURRED THE ADOPTION OF THE ENGLISH BILL OF RIGHTS
CONTAINING THE PROGENITOR OF OUR PROHIBITION AGAINST CRUEL AND UNUSUAL
PUNISHMENTS.  /9/  THE CONDUCT OF LORD CHIEF JUSTICE JEFFREYS AT THOSE
TRIALS HAS BEEN DESCRIBED AS AN "INSANE LUST FOR CRUELTY" WHICH WAS
"STIMULATED BY ORDERS FROM THE KING" (JAMES II).  /10/  THE ASSIZES
RECEIVED WIDE PUBLICITY FROM PURITAN PAMPHLETEERS AND DOUBTLESS HAD
SOME INFLUENCE ON THE ADOPTION OF A CRUEL AND UNUSUAL PUNISHMENTS
CLAUSE.  BUT, THE LEGISLATIVE HISTORY OF THE ENGLISH BILL OF RIGHTS OF
1689 INDICATES THAT THE ASSIZES MAY NOT HAVE BEEN AS CRITICAL TO THE
ADOPTION OF THE CLAUSE AS IS WIDELY THOUGHT.  AFTER WILLIAM AND MARY OF
ORANGE CROSSED THE CHANNEL TO INVADE ENGLAND, JAMES II FLED. 
PARLIAMENT WAS SUMMONED INTO SESSION AND A COMMITTEE WAS APPOINTED TO
DRAFT GENERAL STATEMENTS CONTAINING "SUCH THINGS AS ARE ABSOLUTELY
NECESSARY TO BE CONSIDERED FOR THE BETTER SECURING OF OUR RELIGION,
LAWS AND LIBERTIES."  /11/  AN INITIAL DRAFT OF THE BILL OF RIGHTS
PROHIBITED "ILLEGAL" PUNISHMENTS, BUT A LATER DRAFT REFERRED TO THE
INFLICTION BY JAMES II OF "ILLEGAL AND CRUEL" PUNISHMENTS, AND DECLARED
"CRUEL AND UNUSUAL" PUNISHMENTS TO BE PROHIBITED.  /12/  THE USE OF THE
WORD "UNUSUAL" IN THE FINAL DRAFT APPEARS TO BE INADVERTENT. 

THIS LEGISLATIVE HISTORY HAS LED AT LEAST ONE LEGAL HISTORIAN TO
CONCLUDE "THAT THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OF THE BILL OF
RIGHTS OF 1689 WAS, FIRST, AN OBJECTION TO THE IMPOSITION OF
PUNISHMENTS THAT WERE UNAUTHORIZED BY STATUTE AND OUTSIDE THE
JURISDICTION OF THE SENTENCING COURT, AND SECOND, A REITERATION OF THE
ENGLISH POLICY AGAINST DISPROPORTIONATE PENALTIES,"  /13/  AND NOT
PRIMARILY A REACTION TO THE TORTURE OF THE HIGH COMMISSION, HARSH
SENTENCES, OR THE ASSIZES. 

WHETHER THE ENGLISH BILL OF RIGHTS PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENTS IS PROPERLY READ AS A RESPONSE TO EXCESSIVE OR
ILLEGAL PUNISHMENTS, AS A REACTION TO BARBARIC AND OBJECTIONABLE MODES
OF PUNISHMENT, OR AS BOTH, THERE IS NO DOUBT WHATEVER THAT IN BORROWING
THE LANGUAGE AND IN INCLUDING IT IN THE EIGHTH AMENDMENT, OUR FOUNDING
FATHERS INTENDED TO OUTLAW TORTURE AND OTHER CRUEL PUNISHMENTS.  /14/ 

THE PRECISE LANGUAGE USED IN THE EIGHTH AMENDMENT FIRST APPEARED IN
AMERICA ON JUNE 12, 1776, IN VIRGINIA'S "DECLARATION OF RIGHTS," SEC. 9
OF WHICH READ:  "THAT EXCESSIVE BAIL OUGHT NOT TO BE REQUIRED, NOR
EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED." 
/15/  THIS LANGUAGE WAS DRAWN VERBATIM FROM THE ENGLISH BILL OF RIGHTS
OF 1689.  OTHER STATES ADOPTED SIMILAR CLAUSES, /16/  AND THERE IS
EVIDENCE IN THE DEBATES OF THE VARIOUS STATE CONVENTIONS THAT WERE
CALLED UPON TO RATIFY THE CONSTITUTION OF GREAT CONCERN FOR THE
OMISSION OF ANY PROHIBITION AGAINST TORTURE OR OTHER CRUEL
PUNISHMENTS.  /17/ 

THE VIRGINIA CONVENTION OFFERS SOME CLUES AS TO WHAT THE FOUNDING
FATHERS HAD IN MIND IN PROHIBITING CRUEL OR UNUSUAL PUNISHMENTS.  AT
ONE POINT GEORGE MASON ADVOCATED THE ADOPTION OF A BILL OF RIGHTS, AND
PATRICK HENRY CONCURRED, STATING: 

"BY THIS CONSTITUTION, SOME OF THE BEST BARRIERS OF HUMAN RIGHTS ARE
THROWN AWAY.  IS THERE NOT AN ADDITIONAL REASON TO HAVE A BILL OF
RIGHTS?  . . . CONGRESS, FROM THEIR GENERAL POWERS, MAY FULLY GO INTO
BUSINESS OF HUMAN LEGISLATION.  THEY MAY LEGISLATE, IN CRIMINAL CASES,
FROM TREASON TO THE LOWEST OFFENCE-- PETTY LARCENY.  THEY MAY DEFINE
CRIMES AND PRESCRIBE PUNISHMENTS.  IN THE DEFINITION OF CRIMES, I TRUST
THEY WILL BE DIRECTED BY WHAT WISE REPRESENTATIVES OUGHT TO BE GOVERNED
BY.  BUT WHEN WE COME TO PUNISHMENT, NO LATITUDE OUGHT TO BE LEFT, NOR
DEPENDENCE PUT ON THE VIRTUE OF REPRESENTATIVES.  WHAT SAYS OUR BILL OF
RIGHTS?-- 'THAT EXCESSIVE BAIL OUGHT NOT TO BE REQUIRED, NOR EXCESSIVE
FINES IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED.'  ARE YOU
NOT, THEREFORE, NOW CALLING ON THOSE GENTLEMEN WHO ARE TO COMPOSE
CONGRESS, TO PRESCRIBE TRIALS AND DEFINE PUNISHMENTS WITHOUT THIS
CONTROL?  WILL THEY FIND SENTIMENTS THERE SIMILAR TO THIS BILL OF
RIGHTS?  YOU LET THEM LOOSE; YOU DO MORE-- YOU DEPART FROM THE GENIUS
OF YOUR COUNTRY.  . . . 

     "IN THIS BUSINESS OF LEGISLATION, YOUR MEMBERS OF CONGRESS
WILL

  LOOSE THE RESTRICTION OF NOT IMPOSING EXCESSIVE FINES, DEMANDING

  EXCESSIVE BAIL, AND INFLICTING CRUEL AND UNUSUAL PUNISHMENTS. 

THESE ARE PROHIBITED BY YOUR DECLARATION OF RIGHTS.  WHAT HAS

  DISTINGUISHED OUR ANCESTORS?-- THAT THEY WOULD NOT ADMIT OF

  TORTURES, OR CRUEL AND BARBAROUS PUNISHMENT.  BUT CONGRESS MAY

  INTRODUCE THE PRACTICE OF THE CIVIL LAW, IN PREFERENCE TO THAT OF

  THE COMMON LAW.  THEY MAY INTRODUCE THE PRACTICE OF FRANCE,

  SPAIN, AND GERMANY-- OF TORTURING, TO EXTORT A CONFESSION OF THE

  CRIME.  THEY WILL SAY THAT THEY MIGHT AS WELL DRAW EXAMPLES FROM

  THOSE COUNTRIES AS FROM GREAT BRITAIN, AND THEY WILL TELL YOU

  THAT THERE IS SUCH A NECESSITY OF STRENGTHENING THE ARM OF

  GOVERNMENT, THAT THEY MUST HAVE A CRIMINAL EQUITY, AND EXTORT

CONFESSION BY TORTURE, IN ORDER TO PUNISH WITH STILL MORE

RELENTLESS SEVERITY.  WE ARE THEN LOST AND UNDONE."  /18/

HENRY'S STATEMENT INDICATES THAT HE WISHED TO INSURE THAT "RELENTLESS
SEVERITY" WOULD BE PROHIBITED BY THE CONSTITUTION.  OTHER EXPRESSIONS
WITH RESPECT TO THE PROPOSED EIGHTH AMENDMENT BY MEMBERS OF THE FIRST
CONGRESS INDICATE THAT THEY SHARE HENRY'S VIEW OF THE NEED FOR AND
PURPOSE OF THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE.  /19/ 

THUS, THE HISTORY OF THE CLAUSE CLEARLY ESTABLISHES THAT IT WAS
INTENDED TO PROHIBIT CRUEL PUNISHMENTS.  WE MUST NOW TURN TO THE CASE
LAW TO DISCOVER THE MANNER IN WHICH COURTS HAVE GIVEN MEANING TO THE
TERM "CRUEL." 

 II 

THIS COURT DID NOT SQUARELY FACE THE TASK OF INTERPRETING THE CRUEL
AND UNUSUAL PUNISHMENTS LANGUAGE FOR THE FIRST TIME UNTIL WILKERSON V.
UTAH, 99 U.S. 130 (1879), ALTHOUGH THE LANGUAGE RECEIVED A CURSORY
EXAMINATION IN SEVERAL PRIOR CASES.  SEE, E.G., PERVEAR V.
COMMONWEALTH, 5 WALL.  475 (1867).  IN WILKERSON, THE COURT UNANIMOUSLY
UPHELD A SENTENCE OF PUBLIC EXECUTION BY SHOOTING IMPOSED PURSUANT TO A
CONVICTION FOR PREMEDITATED MURDER.  IN HIS OPINION FOR THE COURT, MR.
JUSTICE CLIFFORD WROTE: 

     "DIFFICULTY WOULD ATTEND THE EFFORT TO DEFINE WITH EXACTNESS

  THE EXTENT OF THE CONSTITUTIONAL PROVISION WHICH PROVIDES THAT

  CRUEL AND UNUSUAL PUNISHMENTS SHALL NOT BE INFLICTED; BUT IT IS

  SAFE TO AFFIRM THAT PUNISHMENTS OF TORTURE, . . . AND ALL OTHERS

  IN THE SAME LINE OF UNNECESSARY CRUELTY, ARE FORBIDDEN BY THAT

  AMENDMENT TO THE CONSTITUTION."  99 U.S.,AT 135-136. 

THUS, THE COURT FOUND THAT UNNECESSARY CRUELTY WAS NO MORE PERMISSIBLE
THAN TORTURE.  TO DETERMINE WHETHER THE PUNISHMENT UNDER ATTACK WAS
UNNECESSARILY CRUEL, THE COURT EXAMINED THE HISTORY OF THE UTAH
TERRITORY AND THE THEN-CURRENT WRITINGS ON CAPITAL PUNISHMENT, AND
COMPARED THIS NATION'S PRACTICES WITH THOSE OF OTHER COUNTRIES.  IT IS
APPARENT THAT THE COURT FELT IT COULD NOT DISPOSE OF THE QUESTION
SIMPLY BY REFERRING TO TRADITIONAL PRACTICES; INSTEAD, IT FELT BOUND TO
EXAMINE DEVELOPING THOUGHT. 

ELEVEN YEARS PASSED BEFORE THE COURT AGAIN FACED A CHALLENGE TO A
SPECIFIC PUNISHMENT UNDER THE EIGHTH AMENDMENT.  IN THE CASE OF IN RE
KEMMLER, 136 U.S. 436 (1890), CHIEF JUSTICE FULLER WROTE AN OPINION FOR
A UNANIMOUS COURT UNHOLDING ELECTROCUTION AS A PERMISSIBLE MODE OF
PUNISHMENT.  WHILE THE COURT OSTENSIBLY HELD THAT THE EIGHTH AMENDMENT
DID NOT APPLY TO THE STATES, IT IS VERY APPARENT THAT THE NATURE OF THE
PUNISHMENT INVOLVED WAS EXAMINED UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  THE COURT HELD THAT THE PUNISHMENT WAS NOT
OBJECTIONABLE.  TODAY, KEMMLER STANDS PRIMARILY FOR THE PROPOSITION
THAT A PUNISHMENT IS NOT NECESSARILY UNCONSTITUTIONAL SIMPLY BECAUSE IT
IS UNUSUAL, SO LONG AS THE LEGISLATURE HAS A HUMANE PURPOSE IN
SELECTING IT.  /20/ 

TWO YEARS LATER IN O'NEIL V. VERMONT, 144 U.S. 323 (1892), THE COURT
REAFFIRMED THAT THE EIGHTH AMENDMENT WAS NOT APPLICABLE TO THE STATES. 
O'NEIL WAS FOUND GUILTY ON 307 COUNTS OF SELLING LIQUOR IN VIOLATION OF
VERMONT LAW.  A FINE OF $6,140 ($20 FOR EACH OFFENSE) AND THE COSTS OF
PROSECUTION ($497.96) WERE IMPOSED.  O'NEIL WAS COMMITTED TO PRISON
UNTIL THE FINE AND THE COSTS WERE PAID; AND THE COURT PROVIDED THAT IF
THEY WERE NOT PAID BEFORE A SPECIFIED DATE, O'NEIL WAS TO BE CONFINED
IN THE HOUSE OF CORRECTIONS FOR 19,914 DAYS (APPROXIMATELY 54 YEARS) AT
HARD LABOR.  THREE JUSTICES-- FIELD, HARLAN, AND BREWER-- DISSENTED. 
THEY MAINTAINED NOT ONLY THAT THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE
WAS APPLICABLE TO THE STATES, BUT THAT IN O'NEIL'S CASE IT HAD BEEN
VIOLATED.  MR. JUSTICE FIELD WROTE: 

     "THAT DESIGNATION (CRUEL AND UNUSUAL), IT IS TRUE, IS USUALLY

  APPLIED TO PUNISHMENTS WHICH INFLICT TORTURE, SUCH AS THE RACK,

  THE THUMBSCREW, THE IRON BOOT, THE STRETCHING OF LIMBS AND THE

  LIKE, WHICH ARE ATTENDED WITH ACUTE PAIN AND SUFFERING.  . . .
THE

  INHIBITION IS DIRECTED, NOT ONLY AGAINST PUNISHMENTS OF THE

  CHARACTER MENTIONED, BUT AGAINST ALL PUNISHMENTS WHICH BY THEIR

 EXCESSIVE LENGTH OR SEVERITY ARE GREATLY DISPROPORTIONED TO THE

  OFFENCES CHARGED.  THE WHOLE INHIBITION IS AGAINST THAT WHICH IS

  EXCESSIVE . . . ."  ID., AT 339-340. 

IN HOWARD V. FLEMING, 191 U.S. 126 (1903), THE COURT, IN ESSENCE,
FOLLOWED THE APPROACH ADVOCATED BY THE DISSENTERS IN O'NEIL.  IN
REJECTING THE CLAIM THAT 10-YEAR SENTENCES FOR CONSPIRACY TO DEFRAUD
WERE CRUEL AND UNUSUAL, THE COURT (PER MR. JUSTICE BREWER) CONSIDERED
THE NATURE OF THE CRIME, THE PURPOSE OF THE LAW, AND THE LENGTH OF THE
SENTENCE IMPOSED. 

THE COURT USED THE SAME APPROACH SEVEN YEARS LATER IN THE LANDMARK
CASE OF WEEMS V. UNITED STATES, 217 U.S. 349 (1910).  WEEMS, AN OFFICER
OF THE BUREAU OF COAST GUARD AND TRANSPORTATION OF THE UNITED STATES
GOVERNMENT OF THE PHILIPPINE ISLANDS, WAS CONVICTED OF FALSIFYING A
"PUBLIC AND OFFICIAL DOCUMENT."  HE WAS SENTENCED TO 15 YEARS'
INCARCERATION AT HARD LABOR WITH CHAINS ON HIS ANKLES, TO AN UNUSUAL
LOSS OF HIS CIVIL RIGHTS, AND TO PERPETUAL SURVEILLANCE.  CALLED UPON
TO DETERMINE WHETHER THIS WAS A CRUEL AND UNUSUAL PUNISHMENT, THE COURT
FOUND THAT IT WAS.  /21/  THE COURT EMPHASIZED THAT THE CONSTITUTION
WAS NOT AN "EPHEMERAL" ENACTMENT, OR ONE "DESIGNED TO MEET PASSING
OCCASIONS."  /22/  RECOGNIZING THAT "(TIME WORKS CHANGES (AND) BRINGS
INTO EXISTENCE NEW CONDITIONS AND PURPOSES,"  /23/  THE COURT COMMENTED
THAT "(IN THE APPLICATION OF A CONSTITUTION . . . OUR CONTEMPLATION
CANNOT BE ONLY OF WHAT HAS BEEN BUT OF WHAT MAY BE."  /24/     IN
STRIKING DOWN THE PENALTY IMPOSED ON WEEMS, THE COURT EXAMINED THE
PUNISHMENT IN RELATION TO THE OFFENSE, COMPARED THE PUNISHMENT TO THOSE
INFLICTED FOR OTHER CRIMES AND TO THOSE IMPOSED IN OTHER JURISDICTIONS,
AND CONCLUDED THAT THE PUNISHMENT WAS EXCESSIVE.  /25/  JUSTICES WHITE
AND HOLMES DISSENTED AND ARGUED THAT THE CRUEL AND UNUSUAL PROHIBITION
WAS MEANT TO PROHIBIT ONLY THOSE THINGS THAT WERE OBJECTIONABLE AT THE
TIME THE CONSTITUTION WAS ADOPTED.  /26/ 

WEEMS IS A LANDMARK CASE BECAUSE IT REPRESENTS THE FIRST TIME THAT
THE COURT INVALIDATED A PENALTY PRESCRIBED BY A LEGISLATURE FOR A
PARTICULAR OFFENSE.  THE COURT MADE IT PLAIN BEYOND ANY REASONABLE
DOUBT THAT EXCESSIVE PUNISHMENTS WERE AS OBJECTIONABLE AS THOSE THAT
WERE INHERENTLY CRUEL.  THUS, IT IS APPARENT THAT THE DISSENTERS'
POSITION IN O'NEIL HAD BECOME THE OPINION OF THE COURT IN WEEMS. 

WEEMS WAS FOLLOWED BY TWO CASES THAT ADDED LITTLE TO OUR KNOWLEDGE
OF THE SCOPE OF THE CRUEL AND UNUSUAL LANGUAGE, BADDERS V. UNITED
STATES, 240 U.S. 391 (1916), AND UNITED STATES EX REL. MILWAUKEE SOCIAL
DEMOCRATIC PUBLISHING CO. V. BURLESON, 255 U.S. 407 (1921).  /27/  THEN
CAME ANOTHER LANDMARK CASE, LOUISIANA EX REL. FRANCIS V. RESWEBER, 329
U.S. 459 (1947). 

FRANCIS HAD BEEN CONVICTED OF MURDER AND SENTENCED TO BE
ELECTROCUTED.  THE FIRST TIME THE CURRENT PASSED THROUGH HIM, THERE WAS
A MECHANICAL FAILURE AND HE DID NOT DIE.  THEREAFTER, FRANCIS SOUGHT TO
PREVENT A SECOND ELECTROCUTION ON THE GROUND THAT IT WOULD BE A CRUEL
AND UNUSUAL PUNISHMENT.  EIGHT MEMBERS OF THE COURT ASSUMED THE
APPLICABILITY OF THE EIGHTH AMENDMENT TO THE STATES.  /28/  THE COURT
WAS VIRTUALLY UNANIMOUS IN AGREEING THAT "(THE TRADITIONAL HUMANITY OF
MODERN ANGLO-AMERICAN LAW FORBIDS THE INFLICTION OF UNNECESSARY PAIN,"
/29/  BUT SPLIT 5-4 ON WHETHER FRANCIS WOULD, UNDER THE CIRCUMSTANCES,
BE FORCED TO UNDERGO ANY EXCESSIVE PAIN.  FIVE MEMBERS OF THE COURT
TREATED THE CASE LIKE IN RE KEMMLER AND HELD THAT THE LEGISLATURE
ADOPTED ELECTROCUTION FOR A HUMANE PURPOSE, AND THAT ITS WILL SHOULD
NOT BE THWARTED BECAUSE, IN ITS DESIRE TO REDUCE PAIN AND SUFFERING IN
MOST CASES, IT MAY HAVE INADVERTENTLY INCREASED SUFFERING IN ONE
PARTICULAR CASE.  /30/  THE FOUR DISSENTERS FELT THAT THE CASE SHOULD
BE REMANDED FOR FURTHER FACTS. 

AS IN WEEMS, THE COURT WAS CONCERNED WITH EXCESSIVE PUNISHMENTS. 
RESWEBER IS PERHAPS MOST SIGNIFICANT BECAUSE THE ANALYSIS OF CRUEL AND
UNUSUAL PUNISHMENT QUESTIONS FIRST ADVOCATED BY THE DISSENTERS IN
O'NEIL WAS AT LAST FIRMLY ENTRENCHED IN THE MINDS OF AN ENTIRE COURT. 

TROP V. DULLES, 356 U.S. 86 (1958), MARKED THE NEXT MAJOR CRUEL AND
UNUSUAL PUNISHMENT CASE IN THIS COURT.  TROP, A NATIVE-BORN AMERICAN,
WAS DECLARED TO HAVE LOST HIS CITIZENSHIP BY TREASON OF A CONVICTION BY
COURT-MARTIAL FOR WARTIME DESERTION.  WRITING FOR HIMSELF AND JUSTICES
BLACK, DOUGLAS, AND WHITTAKER, CHIEF JUSTICE WARREN CONCLUDED THAT LOSS
OF CITIZENSHIP AMOUNTED TO A CRUEL AND UNUSUAL PUNISHMENT THAT VIOLATED
THE EIGHTH AMENDMENT.  /31/ 

EMPHASIZING THE FLEXIBILITY INHERENT IN THE WORDS "CRUEL AND
UNUSUAL," THE CHIEF JUSTICE WROTE THAT "(THE AMENDMENT MUST DRAW ITS
MEANING FROM THE EVOLVING STANDARDS OF DECENCY THAT MARK THE PROGRESS
OF A MATURING SOCIETY."  /32/  HIS APPROACH TO THE PROBLEM WAS THAT
UTILIZED BY THE COURT IN WEEMS:  HE SCRUTINIZED THE SEVERITY OF THE
PENALTY IN RELATION TO THE OFFENSE, EXAMINED THE PRACTICES OF OTHER
CIVILIZED NATIONS OF THE WORLD, AND CONCLUDED THAT INVOLUNTARY
STATELESSNESS WAS AN EXCESSIVE AND, THEREFORE, AN UNCONSTITUTIONAL
PUNISHMENT.  JUSTICE FRANKFURTER, DISSENTING, URGED THAT EXPATRIATION
WAS NOT PUNISHMENT, AND THAT EVEN IF IT WERE, IT WAS NOT EXCESSIVE. 
WHILE HE CRITICIZED THE CONCLUSION ARRIVED AT BY THE CHIEF JUSTICE, HIS
APPROACH TO THE EIGHTH AMENDMENT QUESTION WAS IDENTICAL. 

WHEREAS IN TROP A MAJORITY OF THE COURT FAILED TO AGREE ON WHETHER
LOSS OF CITIZENSHIP WAS A CRUEL AND UNUSUAL PUNISHMENT, FOUR YEARS
LATER A MAJORITY DID AGREE IN ROBINSON V. CALIFORNIA, 370 U.S. 660
(1962), THAT A SENTENCE OF 90 DAYS' IMPRISONMENT FOR VIOLATION OF A
CALIFORNIA STATUTE MAKING IT A CRIME TO "BE ADDICTED TO THE USE OF
MARCOTICS" WAS CRUEL AND UNUSUAL.  MR. JUSTICE STEWART, WRITING THE
OPINION OF THE COURT, REITERATED WHAT THE COURT HAD SAID IN WEEMS AND
WHAT CHIEF JUSTICE WARREN WROTE IN TROP-- THAT THE CRUEL AND UNUSUAL
PUNISHMENT CLAUSE WAS NOT A STATIC CONCEPT, BUT ONE THAT MUST BE
CONTINUALLY RE-EXAMINED "IN THE LIGHT OF CONTEMPORARY HUMAN
KNOWLEDGE."  /33/  THE FACT THAT THE PENALTY UNDER ATTACK WAS ONLY 90
DAYS EVIDENCES THE COURT'S WILLINGNESS TO CAREFULLY EXAMINE THE
POSSIBLE EXCESSIVENESS OF PUNISHMENT IN A GIVEN CASE EVEN WHERE WHAT IS
INVOLVED IS A PENALTY THAT IS FAMILIAR AND WIDELY ACCEPTED.  /34/ 

WE DISTINGUISHED ROBINSON IN POWELL V. TEXAS, 392 U.S. 514 (1968),
WHERE WE SUSTAINED A CONVICTION FOR DRUNKENNESS IN A PUBLIC PLACE AND A
FINE OF $20.  FOUR JUSTICES DISSENTED ON THE GROUND THAT ROBINSON WAS
CONTROLLING.  THE ANALYSIS IN BOTH CASES WAS THE SAME; ONLY THE
CONCLUSION AS TO WHETHER OR NOT THE PUNISHMENT WAS EXCESSIVE DIFFERED. 
POWELL MARKED THE LAST TIME PRIOR TO TODAY'S DECISION THAT THE COURT
HAS HAD OCCASION TO CONSTRUE THE MEANING OF THE TERM "CRUEL AND
UNUSUAL" PUNISHMENT. 

SEVERAL PRINCIPLES EMERGE FROM THESE PRIOR CASES AND SERVE AS A
BEACON TO AN ENLIGHTENED DECISION IN THE INSTANT CASES. 

        III 

PERHAPS THE MOST IMPORTANT PRINCIPLE IN ANALYZING "CRUEL AND
UNUSUAL" PUNISHMENT QUESTIONS IS ONE THAT IS REITERATED AGAIN AND AGAIN
IN THE PRIOR OPIONONS OF THE COURT:  I.E., THE CRUEL AND UNUSUAL
LANGUAGE "MUST DRAW ITS MEANING FROM THE EVOLVING STANDARDS OF DECENCY
THAT MARK THE PROGRESS OF A MATURING SOCIETY."  /35/  THUS, A PENALTY
THAT WAS PERMISSIBLE AT ONE TIME IN OUR NATION'S HISTORY IS NOT
NECESSARILY PERMISSIBLE TODAY. 

THE FACT, THEREFORE, THAT THE COURT, OR INDIVIDUAL JUSTICES, MAY
HAVE IN THE PAST EXPRESSED AN OPINION THAT THE DEATH PENALTY IS
CONSTITUTIONAL IS NOT NOW BINDING ON US.  A FAIR READING OF WILKERSON
V. UTAH, SUPRA; IN RE KEMMLER, SUPRA; AND LOUISIANA EX REL. FRANCIS V.
RESWEBER, SUPRA, WOULD CERTAINLY INDICATE AN ACCEPTANCE SUB SILENTIO OF
CAPITAL PUNISHMENT AS CONSTITUTIONALLY PERMISSIBLE.  SEVERAL JUSTICES
HAVE ALSO EXPRESSED THEIR INDIVIDUAL OPINIONS THAT THE DEATH PENALTY IS
CONSTITUTIONAL.  /36/  YET, SOME OF THESE SAME JUSTICES AND OTHERS HAVE
AT TIMES EXPRESSED CONCERN OVER CAPITAL PUNISHMENT.  /37/  THERE IS NO
HOLDING DIRECTLY IN POINT, AND THE VERY NATURE OF THE EIGHTH AMENDMENT
WOULD DICTATE THAT UNLESS A VERY RECENT DECISION EXISTED, STARE DECISIS
WOULD BOW TO CHANGING VALUES, AND THE QUESTION OF THE CONSTITUTIONALITY
OF CAPITAL PUNISHMENT AT A GIVEN MOMENT IN HISTORY WOULD REMAIN OPEN. 

FACED WITH AN OPEN QUESTION, WE MUST ESTABLISH OUR STANDARDS FOR
DECISION.  THE DECISIONS DISCUSSED IN THE PREVIOUS SELECTION IMPLY THAT
A PUNISHMENT MAY BE DEEMED CRUEL AND UNUSUAL FOR ANY ONE OF FOUR
DISTINCT REASONS. 

FIRST, THERE ARE CERTAIN PUNISHMENTS THAT INHERENTLY INVOLVE SO MUCH
PHYSICAL PAIN AND SUFFERING THAT CIVILIZED PEOPLE CANNOT TOLERATE THEM-
E.G., USE OF THE RACK, THE THUMBSCREW, OR OTHER MODES OF TORTURE.  SEE
O'NEIL V. VERMONT, 144 U.S.,AT 339 (FIELD, J., DISSENTING).  REGARDLESS
OF PUBLIC SENTIMENT WITH RESPECT TO IMPOSITION OF ONE OF THESE
PUNISHMENTS IN A PARTICULAR CASE OR AT ANY ONE MOMENT IN HISTORY, THE
CONSTITUTION PROHIBITS IT.  THESE ARE PUNISHMENTS THAT HAVE BEEN BARRED
SINCE THE ADOPTION OF THE BILL OF RIGHTS. 

SECOND, THERE ARE PUNISHMENTS THAT ARE UNUSUAL, SIGNIFYING THAT THEY
WERE PREVIOUSLY UNKNOWN AS PENALTIES FOR A GIVEN OFFENSE.  CF. UNITED
STATES EX REL. MILWAUKEE SOCIAL DEMOCRATIC PUBLISHING CO. V. BURLESON,
255 U.S.,AT 435 (BRANDEIS, J., DISSENTING).  IF THESE PUNISHMENTS ARE
INTENDED TO SERVE A HUMANE PURPOSE, THEY MAY BE CONSTITUTIONALLY
PERMISSIBLE.  IN RE KEMMLER, 136 U.S.,AT 447; LOUISIANA EX REL. FRANCIS
V. RESWEBER, 329 U.S.,AT 464.  PRIOR DECISIONS LEAVE OPEN THE QUESTION
OF JUST HOW MUCH THE WORD "UNUSUAL"  ADDS TO THE WORD "CRUEL."  I HAVE
PREVIOUSLY INDICATED THAT USE OF THE WORD "UNUSUAL' IN THE ENGLISH BILL
OF RIGHTS OF 1689 WAS INADVERTENT, AND THERE IS NOTHING IN THE HISTORY
OF THE EIGHTH AMENDMENT TO GIVE FLESH TO ITS INTENDED MEANING.  IN
LIGHT OF THE MEAGER HISTORY THAT DOES EXIST, ONE WOULD SUPPOSE THAT AN
INNOVATIVE PUNISHMENT WOULD PROBABLY BE CONSTITUTIONAL IF NO MORE CRUEL
THAN THAT PUNISHMENT WHICH IT SUPERSEDED.  WE NEED NOT DECIDE THIS
QUESTION HERE, HOWEVER, FOR CAPITAL PUNISHMENT IS CERTAINLY NOT A
RECENT PHENOMENON. 

THIRD, A PENALTY MAY BE CRUEL AND UNUSUAL BECAUSE IT IS EXCESSIVE
AND SERVES NO VALID LEGISLATIVE PURPOSE.  WEEMS V. UNITED STATES,
SUPRA.  THE DECISIONS PREVIOUSLY DISCUSSED ARE REPLETE WITH ASSERTIONS
THAT ONE OF THE PRIMARY FUNCTIONS OF THE CRUEL AND UNUSUAL PUNISHMENTS
CLAUSE IS TO PREVENT EXCESSIVE OR UNNECESSARY PENALTIES, E.G.,
WILKERSON V. UTAH, 99 U.S.,AT 134; O'NEIL V. VERMONT, 144 U.S.,AT 339
340 (FIELD, J., DISSENTING); WEEMS V. UNITED STATES, 217 U.S.,AT 381;
LOUISIANA EX REL. FRANCIS V. RESWEBER, SUPRA; THESE PUNISHMENTS ARE
UNCONSTITUTIONAL EVEN THOUGH POPULAR SENTIMENT MAY FAVOR THEM.  BOTH
THE CHIEF JUSTICE AND MR. JUSTICE POWELL SEEK TO IGNORE OR TO MINIMIZE
THIS ASPECT OF THE COURT'S PRIOR DECISIONS.  BUT, SINCE MR. JUSTICE
FIELD FIRST SUGGESTED THAT "(THE WHOLE INHIBITION (OF THE PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENTS) IS AGAINST THAT WHICH IS
EXCESSIVE," O'NEIL V. VERMONT, 144 U.S.,AT 340, THIS COURT HAS
STEADFASTLY MAINTAINED THAT A PENALTY IS UNCONSTITUTIONAL WHENEVER IT
IS UNNECESSARILY HARSH OR CRUEL.  THIS IS WHAT THE FOUNDERS OF THIS
COUNTRY INTENDED; THIS IS WHAT THEIR FELLOW CITIZENS BELIEVED THE
EIGHTH AMENDMENT PROVIDED; AND THIS WAS THE BASIS FOR OUR DECISION IN
ROBINSON V. CALIFORNIA, SUPRA, FOR THE PLURALITY OPINION BY MR. CHIEF
JUSTICE WARREN IN TROP V. DULLES, SUPRA, AND FOR THE COURT'S DECISION
IN THE WEEMS V. UNITED STATES, SUPRA.  SEE ALSO W. BRADFORD, AN ENQUIRY
HOW FAR THE PUNISHMENT OF DEATH IS NECESSARY IN PENNSYLVANIA (1793),
REPRINTED IN 12 AM.J.LEGAL HIST. 122, 127 (1968).  IT SHOULD ALSO BE
NOTED THAT THE "CRUEL AND UNUSUAL"  LANGUAGE OF THE EIGHTH AMENDMENT
IMMEDIATELY FOLLOWS LANGUAGE THAT PROHIBITS EXCESSIVE BAIL AND
EXCESSIVE FINES.  THE ENTIRE THRUST OF THE EIGHTH AMENDMENT IS, IN
SHORT, AGAINST "THAT WHICH IS EXCESSIVE." 

FOURTH, WHERE A PUNISHMENT IS NOT EXCESSIVE AND SERVES A VALID
LEGISLATIVE PURPOSE, IT STILL MAY BE INVALID IF POPULAR SENTIMENT
ABHORS IT.  FOR EXAMPLE, IF THE EVIDENCE CLEARLY DEMONSTRATED THAT
CAPITAL PUNISHMENT SERVED VALID LEGISLATIVE PURPOSES, SUCH PUNISHMENT
WOULD, NEVERTHELESS, BE UNCONSTITUTIONAL IF CITIZENS FOUND IT TO BE
MORALLY UNACCEPTABLE.  A GENERAL ABHORRENCE ON THE PART OF THE PUBLIC
WOULD, IN EFFECT, EQUATE A MODERN PUNISHMENT WITH THOSE BARRED SINCE
THE ADOPTION OF THE EIGHTH AMENDMENT.  THERE ARE NO PRIOR CASES IN THIS
COURT STRIKING DOWN A PENALTY ON THIS GROUND, BUT THE VERY NOTION OF
CHANGING VALUES REQUIRES THAT WE RECOGNIZE ITS EXISTENCE. 

IT IS IMMEDIATELY OBVIOUS, THEN, THAT SINCE CAPITAL PUNISHMENT IS NOT
A RECENT PHENOMENON, IF IT VIOLATES THE CONSTITUTION, IT DOES SO
BECAUSE IT IS EXCESSIVE OR UNNECESSARY, OR BECAUSE IT IS ABHORRENT TO
CURRENTLY EXISTING MORAL VALUES. 

WE MUST PROCEED TO THE HISTORY OF CAPITAL PUNISHMENT IN THE UNITED
STATES. 

        IV 

CAPITAL PUNISHMENT HAS BEEN USED TO PENALIZE VARIOUS FORMS OF
CONDUCT BY MEMBERS OF SOCIETY SINCE THE BEGINNINGS OF CIVILIZATION. 
ITS PRECISE ORIGINS ARE DIFFICULT TO PRECEIVE, BUT THERE IS SOME
EVIDENCE THAT ITS ROOTS LIE IN VIOLENT RETALIATION BY MEMBERS OF A
TRIBE OR GROUP, OR BY THE TRIBE OR GROUP ITSELF, AGAINST PERSONS
COMMITTING HOSTILE ACTS TOWARD GROUP MEMBERS.  /38/  THUS, INFLICTION
OF DEATH AS A PENALTY FOR OBJECTIONABLE CONDUCT APPEARS TO HAVE ITS
BEGINNINGS IN PRIVATE VENGEANCE.  /39/ 

AS INDIVIDUALS GRADUALLY CEDED THEIR PERSONA; PREROGATIVES TO A
SOVEREIGN POWER, THE SOVEREIGN ACCEPTED THE AUTHORITY TO PUNISH
WRONGDOING AS PART OF ITS "DIVINE RIGHT" TO RULE.  INDIVIDUAL VENGEANCE
GAVE WAY TO THE VENGEANCE OF THE STATE, AND CAPITAL PUNISHMENT BECAME A
PUBLIC FUNCTION.  /40/  CAPITAL PUNISHMENT WORKED ITS WAY INTO THE LAWS
OF VARIOUS COUNTRIES, /41/  AND WAS INFLICTED IN A VARIETY OF MACABRE
AND HORRIFIC WAYS.  /42/ 

IT WAS DURING THE REIGN OF HENRY II (1154-1189) THAT ENGLISH LAW
FIRST RECOGNIZED THAT CRIME WAS MORE THAN A PERSONAL AFFAIR BETWEEN THE
VICTIM AND THE PERPETRATOR.  /43/  THE EARLY HISTORY OF CAPITAL
PUNISHMENT IN ENGLAND IS SET FORTH IN MCGAUTHA V. CALIFORNIA, 402 U.S.
183, 197-200 (1971), AND NEED NOT BE REPEATED HERE. 

BY 1500, ENGLISH LAW RECOGNIZED EIGHT MAJOR CAPITAL CRIMES:
TREASON, PETTY TREASON (KILLING OF HUSBAND BY HIS WIFE), MURDER,
LARCENY, ROBBERY, BURGLARY, RAPE, AND ARSON.  /44/  TUDOR AND STUART
KINGS ADDED MANY MORE CRIMES TO THE LIST OF THOSE PUNISHABLE BY DEATH,
AND BY 1688 THERE WERE NEARLY 50.  /45/  GEORGE II (1727-1760) ADDED
NEARLY 36 MORE, AND GEORGE III (1760-1820) INCREASED THE NUMBER BY 60. 
/46/     BY SHORTLY AFTER 1800, CAPITAL OFFENSES NUMBERED MORE THAN 200
AND NOT ONLY INCLUDED CRIMES AGAINST PERSON AND PROPERTY, BUT EVEN SOME
AGAINST THE PUBLIC PEACE.  WHILE ENGLAND MAY, IN RETROSPECT, LOOK
PARTICULARLY BRUTAL, BLACKSTONE POINTS OUT THAT ENGLAND WAS FAIRLY
CIVILIZED WHEN COMPARED TO THE REST OF EUROPE.  /47/ 

CAPITAL PUNISHMENT WAS NOT AS COMMON A PENALTY IN THE AMERICAN
COLONIES.  "THE CAPITALL LAWES OF NEW ENGLAND," DATING FROM 1636, WERE
DRAWN BY THE MASSACHUSETTS BAY COLONY AND ARE THE FIRST WRITTEN
EXPRESSION OF CAPITAL OFFENSES KNOWN TO EXIST IN THIS COUNTRY.  THESE
LAWS MAKE THE FOLLOWING CRIMES CAPITAL OFFENSES:  IDOLATRY, WITCHCRAFT,
BLASPHEMY, MURDER, ASSAULT IN SUDDEN ANGER, SODOMY, BUGGERY, ADULTERY,
STATUTORY RAPE, RAPE, MANSTEALING, PERJURY IN A CAPITAL TRIAL, AND
REBELLION.  EACH CRIME IS ACCOMPANIED BY A REFERENCE TO THE OLD
TESTAMENT TO INDICATE ITS SOURCE.  /48/  IT IS NOT KNOWN WITH ANY
CERTAINTY EXACTLY WHEN, OR EVEN IF, THESE LAWS WERE ENACTED AS DRAFTED;
AND, IF SO, JUST HOW VIGOROUSLY THESE LAWS WERE ENFORCED.  /49/  WE DO
KNOW THAT THE OTHER COLONIES HAD A VARIETY OF LAWS THAT SPANNED THE
SPECTRUM OF SEVERITY.  /50/ 

BY THE 18TH CENTURY, THE LIST OF CRIMES BECAME MUCH LESS THEOCRATIC
AND MUST MORE SECULAR.  IN THE AVERAGE COLONY, THERE WERE 12 CAPITAL
CRIMES.  /51/  THIS WAS FAR FEWER THAN EXISTED IN ENGLAND, AND PART OF
THE REASON WAS THAT THERE WAS A SCARCITY OF LABOR IN THE COLONIES. 
/52/  STILL, THERE WERE MANY EXECUTIONS, BECAUSE "(WITH COUNTY JAILS
INADEQUATE AND INSECURE, THE CRIMINAL POPULATION SEEMED BEST CONTROLLED
BY DEATH, MUTILATION, AND FINES."  /53/ 

EVEN IN THE 17TH CENTURY, THERE WAS SOME OPPOSITION TO CAPITAL
PUNISHMENT IN SOME OF THE COLONIES.  IN HIS "GREAT ACT" OF 1682,
WILLIAM PENN PRESCRIBED DEATH ONLY FOR PREMEDITATED MURDER AND TREASON,
/54/  ALTHOUGH HIS REFORM WAS NOT LONG LIVED.  /55/ 

IN 1776 THE PHILADELPHIA SOCIETY FOR RELIEVING DISTRESSED PRISONERS
ORGANIZED, AND IT WAS FOLLOWED 11 YEARS LATER BY THE PHILADELPHIA
SOCIETY FOR ALLEVIATING THE MISERIES OF PUBLIC PRISONS.  /56/  THESE
GROUPS PRESSURED FOR REFORM OF ALL PENAL LAWS, INCLUDING CAPITAL
OFFENSES.  DR. BENJAMIN RUSH SOON DRAFTED AMERICA'S FIRST REASONED
ARGUMENT AGAINST CAPITAL PUNISHMENT, ENTITLED AN ENQUIRY INTO THE
EFFECTS OF PUBLIC PUNISHMENTS UPON CRIMINALS AND UPON SOCIETY.  /57/
IN 1793, WILLIAM BRADFORD, THE ATTORNEY GENERAL OF PENNSYLVANIA AND
LATER ATTORNEY GENERAL OF THE UNITED STATES, CONDUCTED "AN ENQUIRY HOW
FAR THE PUNISHMENT OF DEATH IS NECESSARY IN PENNSYLVANIA."  /58/  HE
CONCLUDED THAT IT WAS DOUBTFUL WHETHER CAPITAL PUNISHMENT WAS AT ALL
NECESSARY, AND THAT UNTIL MORE INFORMATION COULD BE OBTAINED, IT SHOULD
BE IMMEDIATELY ELIMINATED FOR ALL OFFENSES EXCEPT HIGH TREASON AND
MURDER.  /59/ 

THE "ENQUIRIES" OF RUSH AND BRADFORD AND THE PENNSYLVANIA MOVEMENT
TOWARD ABOLITION OF THE DEATH PENALTY HAD LITTLE IMMEDIATE IMPACT ON
THE PRACTICES OF OTHER STATES.  /60/  BUT IN THE EARLY 1800'S,
GOVERNORS GEORGE AND DEWITT CLINTON AND DANIEL TOMPKINS UNSUCCESSFULLY
URGED THE NEW YORK LEGISLATURE TO MODIFY OR END CAPITAL PUNISHMENT. 
DURING THIS SAME PERIOD, EDWARD LIVINGSTON, AN AMERICAN LAWYER WHO
LATER BECAME SECRETARY OF STATE AND MINISTER TO FRANCE UNDER PRESIDENT
ANDREW JACKSON, WAS APPOINTED BY THE LOUISIANA LEGISLATURE TO DRAFT A
NEW PENAL CODE.  AT THE CENTER OF HIS PROPOSAL WAS "THE TOTAL ABOLITION
OF CAPITAL PUNISHMENT."  /61/  HIS INTRODUCTORY REPORT TO THE SYSTEM OF
PENAL LAW PREPARED FOR THE STATE OF LOUISIANA /52/  CONTAINED A
SYSTEMATIC REBUTTAL OF ALL ARGUMENTS FAVORING CAPITAL PUNISHMENT. 
DRAFTED IN 1824, IT WAS NOT PUBLISHED UNTIL 1833.  THIS WORK WAS A
TREMENDOUS IMPETUS TO THE ABOLITION MOVEMENT FOR THE NEXT HALF
CENTURY. 

DURING THE 1830'S, THERE WAS A RISING TIDE OF SENTIMENT AGAINST
CAPITAL PUNISHMENT.  IN 1834, PENNSYLVANIA ABOLISHED PUBLIC EXECUTIONS,
/63/  AND TWO YEARS LATER, THE REPORT ON CAPITAL PUNISHMENT MADE TO THE
MAINE LEGISLATURE WAS PUBLISHED.  IT LED TO A LAW THAT PROHIBITED THE
EXECUTIVE FROM ISSUING A WARRANT FOR EXECUTION WITHIN ONE YEAR AFTER A
CRIMINAL WAS SENTENCED BY THE COURTS.  THE TOTALLY DISCRETIONARY
CHARACTER OF THE LAW WAS AT ODDS WITH ALMOST ALL PRIOR PRACTICES.  THE
"MAINE LAW" RESULTED IN LITTLE ENFORCEMENT OF THE DEATH PENALTY, WHICH
WAS NOT SURPRISING SINCE THE LEGISLATURE'S IDEA IN PASSING THE LAW WAS
THAT THE AFFIRMATIVE BURDEN PLACED ON THE GOVERNOR TO ISSUE A WARRANT
ONE FULL YEAR OR MORE AFTER A TRIAL WOULD BE AN EFFECTIVE DETERRENT TO
EXERCISE OF HIS POWER.  /64/  THE LAW SPREAD THROUGHOUT NEW ENGLAND AND
LED TO MICHIGAN'S BEING THE FIRST STATE TO ABOLISH CAPITAL PUNISHMENT
IN 1846.  /65/ 

ANTI-CAPITAL-PUNISHMENT FEELING GREW IN THE 1840'S AS THE LITERATURE
OF THE PERIOD POINTED OUT THE AGONY OF THE CONDEMNED MAN AND EXPRESSED
THE PHILOSOPHY THAT REPENTANCE ATONED FOR THE WORST CRIMES, AND THAT
TRUE REPENTANCE DERIVED, NOT FROM FEAR BUT FROM HARMONY WITH NATURE. 
/66/ 

BY 1850, SOCIETIES FOR ABOLITION EXISTED IN MASSACHUSETTS, NEW YORK,
PENNSYLVANIA, TENNESSEE, OHIO, ALABAMA, LOUISIANA, INDIANA, AND IOWA. 
/67/  NEW YORK, MASSACHUSETTS, AND PENNSYLVANIA CONSTANTLY HAD
ABOLITION BILLS BEFORE THEIR LEGISLATURES.  IN 1852, RHODE ISLAND
FOLLOWED IN THE FOOTSTEPS OF MICHIGAN AND PARTIALLY ABOLISHED CAPITAL
PUNISHMENT.  /68/  WISCONSIN TOTALLY ABOLISHED THE DEATH PENALTY THE
FOLLOWING YEAR.  /69/  THOSE STATES THAT DID NOT ABOLISH THE DEATH
PENALTY GREATLY REDUCED ITS SCOPE, AND "(FEW STATES OUTSIDE THE SOUTH
HAD MORE THAN ONE OR TWO . . . CAPITAL OFFENSES" IN ADDITION TO TREASON
AND MURDER.  /70/ 

BUT THE CIVIL WAR HALTED MUCH OF THE ABOLITION FUROR.  ONE HISTORIAN
HAS SAID THAT "(AFTER THE CIVIL WAR, MEN'S FINER SENSIBILITIES, WHICH
HAD ONCE BEEN REVOLTED BY THE EXECUTION OF A FELLOW BEING, SEEMED
HARDENED AND BLUNTED."  /71/  SOME OF THE ATTENTION PREVIOUSLY GIVEN TO
ABOLITION WAS DIVERTED TO PRISON REFORM.  AN ABOLITIONIST MOVEMENT
STILL EXISTED, HOWEVER.  MAINE ABOLISHED THE DEATH PENALTY IN 1876,
RESTORED IT IN 1883, AND ABOLISHED IT AGAIN IN 1887; IOWA ABOLISHED
CAPITAL PUNISHMENT FROM 1872-1878; COLORADO BEGAN AN ERRATIC PERIOD OF
DE FACTO ABOLITION AND REVIVAL IN 1872; AND KANSAS ALSO ABOLISHED IT DE
FACTO IN 1872, AND BY LAW IN 1907.  /72/ 

ONE GREAT SUCCESS OF THE ABOLITIONIST MOVEMENT IN THE PERIOD FROM 1830
1900 WAS ALMOST COMPLETE ELIMINATION OF MANDATORY CAPITAL PUNISHMENT. 
BEFORE THE LEGISLATURES FORMALLY GAVE JURIES DISCRETION TO REFRAIN FROM
IMPOSING THE DEATH PENALTY, THE PHENOMENON OF "JURY NULLIFICATION," IN
WHICH JURIES REFUSED TO CONVICT IN CASES IN WHICH THEY BELIEVED THAT
DEATH WAS AN INAPPROPRIATE PENALTY, WAS EXPERIENCED.  /73/  TENNESSEE
WAS THE FIRST STATE TO GIVE JURIES DISCRETION, TENN. LAWS 1837-1838, C.
29, BUT OTHER STATES QUICKLY FOLLOWED SUIT.  THEN, REP. CURTIS OF NEW
YORK INTRODUCED A FEDERAL BILL THAT ULTIMATELY BECAME LAW IN 1897 WHICH
REDUCED THE NUMBER OF FEDERAL CAPITAL OFFENSES FROM 60 TO 3 (TREASON,
MURDER, AND RAPE) AND GAVE THE JURY SENTENCING DISCRETION IN MURDER AND
RAPE CASES.  /74/ 

BY 1917 12 STATES HAD BECOME ABOLITIONIST JURISDICTIONS.  /75/  BUT,
UNDER THE NERVOUS TENSION OF WORLD WAR I, FOUR OF THESE STATES
REINSTITUTED CAPITAL PUNISHMENT AND PROMISING MOVEMENTS IN OTHER STATES
CAME GRINDING TO A HALT.  /76/  DURING THE PERIOD FOLLOWING THE FIRST
WORLD WAR, THE ABOLITIONIST MOVEMENT NEVER REGAINED ITS MOMENTUM. 

IT IS NOT EASY TO ASCERTAIN WHY THE MOVEMENT LOST ITS VIGOR. 
CERTAINLY, MUCH ATTENTION WAS DIVERTED FROM PENAL REFORM DURING THE
ECONOMIC CRISIS OF THE DEPRESSION AND THE EXHAUSTING YEARS OF STRUGGLE
DURING WORLD WAR II.  ALSO, EXECUTIONS, WHICH HAD ONCE BEEN FREQUENT
PUBLIC SPECTACLES, BECAME INFREQUENT PRIVATE AFFAIRS.  THE MANNER OF
INFLICTING DEATH CHANGED, AND THE HORRORS OF THE PUNISHMENT WERE,
THEREFORE, SOMEWHAT DIMINISHED IN THE MINDS OF THE GENERAL PUBLIC. 
/77/ 

IN RECENT YEARS THERE HAS BEEN RENEWED INTEREST IN MODIFYING CAPITAL
PUNISHMENT.  NEW YORK HAS MOVED TOWARD ABOLITION, /78/  AS HAVE SEVERAL
OTHER STATES.  /79/  IN 1967, A BILL WAS INTRODUCED IN THE SENATE TO
ABOLISH CAPITAL PUNISHMENT FOR ALL FEDERAL CRIMES, BUT IT DIED IN
COMMITTEE.  /80/ 

AT THE PRESENT TIME, 41 STATES, THE DISTRICT OF COLUMBIA, AND OTHER
FEDERAL JURISDICTIONS AUTHORIZE THE DEATH PENALTY FOR AT LEAST ONE
CRIME.  IT WOULD BE FRUITLESS TO ATTEMPT HERE TO CATEGORIZE THE
APPROACH TO CAPITAL PUNISHMENT TAKEN BY THE VARIOUS STATES.  /81/  IT
IS SUFFICIENT TO NOTE THAT MURDER IS THE CRIME MOST OFTEN PUNISHED BY
DEATH, FOLLOWED BY KIDNAPING AND TREASON.  /82/  RAPE IS A CAPITAL
OFFENSE IN 16 STATES AND THE FEDERAL SYSTEM.  /83/ 

THE FOREGOING HISTORY DEMONSTRATES THAT CAPITAL PUNISHMENT WAS
CARRIED FROM EUROPE TO AMERICA BUT, ONCE HERE, WAS TEMPERED
CONSIDERABLY.  AT TIMES IN OUR HISTORY, STRONG ABOLITIONIST MOVEMENTS
HAVE EXISTED.  BUT, THEY HAVE NEVER BEEN COMPLETELY SUCCESSFUL, AS NO
MORE THAN ONE-QUARTER OF THE STATES OF THE UNION HAVE, AT ANY ONE TIME,
ABOLISHED THE DEATH PENALTY.  THEY HAVE HAD PARTIAL SUCCESS, HOWEVER,
EXPECIALLY IN REDUCING THE NUMBER OF CAPITAL CRIMES, REPLACING
MANDATORY DEATH SENTENCES WITH JURY DISCRETION, AND DEVELOPING MORE
HUMANE METHODS OF CONDUCTING EXECUTIONS. 

THIS IS WHERE OUR HISTORICAL FORAY LEADS.  THE QUESTION NOW TO BE
FACED IS WHETHER AMERICAN SOCIETY HAS REACHED A POINT WHERE ABOLITION
IS NOT DEPENDENT ON A SUCCESSFUL GRASS ROOTS MOVEMENT IN PARTICULAR
JURISDICTIONS, BUT IS DEMANDED BY THE EIGHTH AMENDMENT.  TO ANSWER THIS
QUESTION, WE MUST FIRST EXAMINE WHETHER OR NOT THE DEATH PENALTY IS
TODAY TANTAMOUNT TO EXCESSIVE PUNISHMENT. 

        V 

IN ORDER TO ASSESS WHETHER OR NOT DEATH IS AN EXCESSIVE OR
UNNECESSARY PENALTY, IT IS NECESSARY TO CONSIDER THE REASONS WHY A
LEGISLATURE MIGHT SELECT IT AS PUNISHMENT FOR ONE OR MORE OFFENSES, AND
EXAMINE WHETHER LESS SEVERE PENALTIES WOULD SATISFY THE LEGITIMATE
LEGISLATIVE WANTS AS WELL AS CAPITAL PUNISHMENT.  IF THEY WOULD, THEN
THE DEATH PENALTY IS UNNECESSARY CRUELTY, AND, THEREFORE,
UNCONSTITUTIONAL. 

THERE ARE SIX PURPOSES CONCEIVABLY SERVED BY CAPITAL PUNISHMENT:
RETRIBUTION, DETERRENCE, PREVENTION OF REPETITIVE CRIMINAL ACTS,
ENCOURAGEMENT OF GUILTY PLEAS AND CONFESSIONS, EUGENICS, AND ECONOMY. 
THESE ARE CONSIDERED SERIATIM BELOW. 

A. THE CONCEPT OF RETRIBUTION IS ONE OF THE MOST MISUNDERSTOOD IN
ALL OF OUR CRIMINAL JURISPRUDENCE.  THE PRINCIPAL SOURCE OF CONFUSION
DERIVES FROM THE FACT THAT, IN DEALING WITH THE CONCEPT, MOST PEOPLE
CONFUSE THE QUESTION "WHY DO MEN IN FACT PUNISH?"  WITH THE QUESTION
"WHAT JUSTIFIES MEN IN PUNISHING?"  /84/  MEN MAY PUNISH FOR ANY NUMBER
OF REASONS, BUT THE ONE REASON THAT PUNISHMENT IS MORALLY GOOD OR
MORALLY JUSTIFIABLE IS THAT SOMEONE HAS BROKEN THE LAW.  THUS, IT CAN
CORRECTLY BE SAID THAT BREAKING THE LAW IS THE SINE QUA NON OF
PUNISHMENT, OR, IN OTHER WORDS, THAT WE ONLY TOLERATE PUNISHMENT AS IT
IS IMPOSED ON ONE WHO DEVIATES FROM THE NORM ESTABLISHED BY THE
CRIMINAL LAW. 

THE FACT THAT THE STATE MAY SEEK RETRIBUTION AGAINST THOSE WHO HAVE
BROKEN ITS LAWS DOES NOT MEAN THAT RETRIBUTION MAY THEN BECOME THE
STATE'S SOLE END IN PUNISHING.  OUR JURISPRUDENCE HAS ALWAYS ACCEPTED
DETERRENCE IN GENERAL, DETERRENCE OF INDIVIDUAL RECIDIVISM, ISOLATION
OF DANGEROUS PERSONS, AND REHABILITATION AS PROPER GOALS OF
PUNISHMENT.  SEE TROP V. DULLES, 356 U.S.,AT 111 (BRENNAN, J.,
CONCURRING).  RETALIATION, VENGEANCE, AND RETRIBUTION HAVE BEEN ROUNDLY
CONDEMNED AS INTOLERABLE ASPIRATIONS FOR A GOVERNMENT IN A FREE
SOCIETY. 

PUNISHMENT AS RETRIBUTION HAS BEEN CONDEMNED BY SCHOLARS FOR
CENTURIES, /85/  AND THE EIGHTH AMENDMENT ITSELF WAS ADOPTED TO PREVENT
PUNISHMENT FROM BECOMING SYNONYMOUS WITH VENGEANCE. 

IN WEEMS V. UNITED STATES, 217 U.S.,AT 381, THE COURT, IN THE COURSE
OF HOLDING THAT WEEMS' PUNISHMENT VIOLATED THE EIGHTH AMENDMENT,
CONTRASTED IT WITH PENALTIES PROVIDED FOR OTHER OFFENSES AND
CONCLUDED: 

"(THIS CONTRAST SHOWS MORE THAN DIFFERENT EXERCISES OF LEGISLATIVE
JUDGMENT.  IT IS GREATER THAN THAT.  IT CONDEMNS THE SENTENCE IN THIS
CASE AS CRUEL AND UNUSUAL.  IT EXHIBITS A DIFFERENCE BETWEEN
UNRESTRAINED POWER AND THAT WHICH IS EXERCISED UNDER THE SPIRIT OF
CONSTITUTIONAL LIMITATIONS FORMED TO ESTABLISH JUSTICE.  THE STATE
THEREBY SUFFERS NOTHING AND LOSES NO POWER.  THE PURPOSE OF PUNISHMENT
IS FULFILLED, CRIME IS REPRESSED BY PENALTIES OF JUST, NOT TORMENTING,
SEVERITY, ITS REPETITION IS PREVENTED, AND HOPE IS GIVEN FOR THE
REFORMATION OF THE CRIMINAL."  IT IS PLAIN THAT THE VIEW OF THE WEEMS
COURT WAS THAT PUNISHMENT FOR THE SAKE OF RETRIBUTION WAS NOT
PERMISSIBLE UNDER THE EIGHTH AMENDMENT.  THIS IS THE ONLY VIEW THAT THE
COURT COULD HAVE TAKEN IF THE "CRUEL AND UNUSUAL" LANGUAGE WERE TO BE
GIVEN ANY MEANING.  RETRIBUTION SURELY UNDERLIES THE IMPOSITION OF SOME
PUNISHMENT ON ONE WHO COMMITS A CRIMINAL ACT.  BUT, THE FACT THAT SOME
PUNISHMENT MAY BE IMPOSED DOES NOT MEAN THAT ANY PUNISHMENT IS
PERMISSIBLE.  IF RETRIBUTION ALONE COULD SERVE AS A JUSTIFICATION FOR
ANY PARTICULAR PENALTY, THEN ALL PENALTIES SELECTED BY THE LEGISLATURE
WOULD BY DEFINITION BE ACCEPTABLE MEANS FOR DESIGNATING SOCIETY'S MORAL
APPROBATION OF A PARTICULAR ACT.  THE "CRUEL AND UNUSUAL" LANGUAGE
WOULD THUS BE READ OUT OF THE CONSTITUTION AND THE FEARS OF PATRICK
HENRY AND THE OTHER FOUNDING FATHERS WOULD BECOME REALITIES. 

TO PRESERVE THE INTEGRITY OF THE EIGHTH AMENDMENT, THE COURT HAS
CONSISTENTLY DENIGRATED RETRIBUTION AS A PERMISSIBLE GOAL OF
PUNISHMENT.  /86/  IT IS UNDOUBTEDLY CORRECT THAT THERE IS A DEMAND FOR
VENGEANCE ON THE PART OF MANY PERSONS IN A COMMUNITY AGAINST ONE WHO IS
CONVICTED OF A PARTICULARLY OFFENSIVE ACT.  AT TIMES A CRY IS HEARD
THAT MORALITY REQUIRES VENGEANCE TO EVIDENCE SOCIETY'S ABHORRENCE OF
THE ACT.  /87/  BUT THE EIGHTH AMENDMENT IS OUR INSULATION FROM OUR
BASER SELVES.  THE "CRUEL AND UNUSUAL" LANGUAGE LIMITS THE AVENUES
THROUGH WHICH VENGEANCE CAN BE CHANNELED.  WERE THIS NOT SO, THE
LANGUAGE WOULD BE EMPTY AND A RETURN TO THE RACK AND OTHER TORTURES
WOULD BE POSSIBLE IN A GIVEN CASE.     MR. JUSTICE STORY WROTE THAT THE
EIGHTH AMENDMENT'S LIMITATION ON PUNISHMENT "WOULD SEEM TO BE WHOLLY
UNNECESSARY IN A FREE GOVERNMENT, SINCE IT IS SCARCELY POSSIBLE THAT
ANY DEPARTMENT OF SUCH A GOVERNMENT SHOULD AUTHORIZE OR JUSTIFY SUCH
ATROCIOUS CONDUCT."  /88/ 

I WOULD REACH AN OPPOSITE CONCLUSION-- THAT ONLY IN A FREE SOCIETY
WOULD MEN RECOGNIZE THEIR INHERENT WEAKNESSES AND SEEK TO COMPENSATE
FOR THEM BY MEANS OF A CONSTITUTION. 

THE HISTORY OF THE EIGHTH AMENDMENT SUPPORTS ONLY THE CONCLUSION
THAT RETRIBUTION FOR ITS OWN SAKE IS IMPROPER. 

B. THE MOST HOTLY CONTESTED ISSUE REGARDING CAPITAL PUNISHMENT IS
WHETHER IT IS BETTER THAN LIFE IMPRISONMENT AS A DETERRENT TO CRIME. 
/89/ 

WHILE THE CONTRARY POSITION HAS BEENARGUED, /90/  IT IS MY FIRM
OPINION THAT THE DEATH PENALTY IS A MORE SEVERE SANCTION THAN LIFE
IMPRISONMENT.  ADMITTEDLY, THERE ARE SOME PERSONS WHO WOULD RATHER DIE
THAN LANGUISH IN PRISON FOR A LIFETIME.  BUT, WHETHER OR NOT THEY
SHOULD BE ABLE TO CHOOSE DEATH AN AN ALTERNATIVE IS A FAR DIFFERENT
QUESTION FROM THAT PRESENTED HERE-- I.E., WHETHER THE STATE CAN IMPOSE
DEATH AS A PUNISHMENT.  DEATH IS IRREVOCABLE; LIFE IMPRISONMENT IS
NOT.  DEATH, OF COURSE, MAKES REHABILITATION IMPOSSIBLE; LIFE
IMPRISONMENT DOES NOT.  IN SHORT, DEATH HAS ALWAYS BEEN VIEWED AS THE
ULTIMATE SANCTION, AND IT SEEMS PERFECTLY REASONABLE TO CONTINUE TO
VIEW IT AS SUCH.  /91/ 

IT MUST BE KEPT IN MIND, THEN, THAT THE QUESTION TO BE CONSIDERED IS
NOT SIMPLY WHETHER CAPITAL PUNISHMENT IS A DETERRENT, BUT WHETHER IT IS
A BETTER DETERRENT THAN LIFE IMPRISONMENT.  /92/ 

THERE IS NO MORE COMPLEX PROBLEM THAN DETERMINING THE DETERRENT
EFFICACY OF THE DEATH PENALTY.  "CAPITAL PUNISHMENT HAS OBVIOUSLY
FAILED AS A DETERRENT WHEN A MURDER IS COMMITTED.  WE CAN NUMBER ITS
FAILURES.  BUT WE CANNOT NUMBER ITS SUCCESSES.  NO ONE CAN EVER KNOW
HOW MANY PEOPLE HAVE REFRAINED FROM MURDER BECAUSE OF THE FEAR OF BEING
HANGED."  /93/  THIS IS THE NUB OF THE PROBLEM AND IT IS EXACERBATED BY
THE PAUCITY OF USEFUL DATA.  THE UNITED STATES IS MORE FORTUNATE THAN
MOST COUNTRIES, HOWEVER, IN THAT IT HAS WHAT ARE GENERALLY CONSIDERED
TO BE THE WORLD'S MOST RELIABLE STATISTICS.  /94/ 

THE TWO STRONGEST ARGUMENTS IN FAVOR OF CAPITAL PUNISHMENT AS A
DETERRENT ARE BOTH LOGICAL HYPOTHESES DEVOID OF EVIDENTIARY SUPPORT,
BUT PERSUASIVE NONETHELESS.  THE FIRST PROPOSITION WAS BEST STATED BY
SIR JAMES STEPHEN IN 1864: 

"NO OTHER PUNISHMENT DETERS MEN SO EFFECTUALLY FROM COMMITTING

  CRIMES AS THE PUNISHMENT OF DEATH.  THIS IS ONE OF THOSE

  PROPOSITIONS WHICH IT IS DIFFICULT TO PROVE, SIMPLY BECAUSE THEY

  ARE IN THEMSELVES MORE OBVIOUS THAN ANY PROOF CAN MAKE THEM.  IT

  IS POSSIBLE TO DISPLAY INGENUITY IN ARGUING AGAINST IT, BUT THAT

  IS ALL.  THE WHOLE EXPERIENCE OF MANKIND IS IN THE OTHER

  DIRECTION.  THE THREAT OF INSTANT DEATH IS THE ONE TO WHICH

  RESORT HAS ALWAYS BEEN MADE WHEN THERE WAS AN ABSOLUTE NECESSITY

  FOR PRODUCING SOME RESULT.  . . . NO ONE GOES TO CERTAIN

  INEVITABLE DEATH EXCEPT BY COMPLUSION.  PUT THE MATTER THE OTHER

  WAY.  WAS THERE EVER YET A CRIMINAL WHO, WHEN SENTENCED TO DEATH

  AND BROUGHT OUT TO DIE, WOULD REFUSE THE OFFER OF A COMMUTATION

  OF HIS SENTENCE FOR THE SEVEREST SECONDARY PUNISHMENT?  SURELY

  NOT.  WHY IS THIS?  IT CAN ONLY BE BECAUSE 'ALL THAT A MAN HAS

  WILL HE GIVE FOR HIS LIFE.'  IN ANY SECONDARY PUNISHMENT, HOWEVER

  TERRIBLE, THERE IS HOPE; BUT DEATH IS DEATH; ITS TERRORS CANNOT

  BE DESCRIBED MORE FORCIBLY."  /95/

THIS HYPOTHESIS RELATES TO THE USE OF CAPITAL PUNISHMENT AS A DETERRENT
FOR ANY CRIME.  THE SECOND PROPOSITION IS THAT "IF LIFE IMPRISONMENT IS
THE MAXIMUM PENALTY FOR A CRIME SUCH AS MURDER, AN OFFENDER WHO IS
SERVING A LIFE SENTENCE CANNOT THEN BE DETERRED FROM MURDERING A FELLOW
INMATE OR A PRISON OFFICER."  /96/  THIS HYPOTHESIS ADVOCATES A LIMITED
DETERRENT EFFECT UNDER PARTICULAR CIRCUMSTANCES. 

ABOLITIONISTS ATTEMPT TO DISPROVE THESE HYPOTHESES BY AMASSING
STATISTICAL EVIDENCE TO DEMONSTRATE THAT THERE IS NO CORRELATION
BETWEEN CRIMINAL ACTIVITY AND THE EXISTENCE OR NONEXISTENCE OF A
CAPITAL SANCTION.  ALMOST ALL OF THE EVIDENCE INVOLVES THE CRIME OF
MURDER, SINCE MURDER IS PUNISHABLE BY DEATH IN MORE JURISDICTIONS THAN
ARE OTHER OFFENSES, /97/  AND ALMOST 90% OF ALL EXECUTIONS SINCE 1920
HAVE BEEN PURSUANT TO MURDER CONVICTIONS.  /98/ 

THORSTEN SELLIN, ONE OF THE LEADING AUTHORITIES ON CAPITAL
PUNISHMENT, HAS URGED THAT IF THE DEATH PENALTY DETERS PROSPECTIVE
MURDERERS, THE FOLLOWING HYPOTHESES SHOULD BE TRUE: 

"(A) MURDERS SHOULD BE LESS FREQUENT IN STATES THAT HAVE THE

  DEATH PENALTY THAN IN THOSE THAT HAVE ABOLISHED IT, OTHER FACTORS

  BEING EQUAL.  COMPARISONS OF THIS NATURE MUST BE MADE AMONG

  STATES THAT ARE AS ALIKE AS POSSIBLE IN ALL OTHER RESPECTS--

  CHARACTER OF POPULATION, SOCIAL AND ECONOMIC CONDITION, ETC.-- IN

  ORDER NOT TO INTRODUCE FACTORS KNOWN TO INFLUENCE MURDER RATES IN

  A SERIOUS MANNER BUT PRESENT IN ONLY ONE OF THESE STATES. 

     "(B) MURDERS SHOULD INCREASE WHEN THE DEATH PENALTY IS

  ABOLISHED AND SHOULD DECLINE WHEN IT IS RESTORED. 

     "(C) THE DETERRENT EFFECT SHOULD BE GREATEST AND SHOULD

  THEREFORE AFFECT MURDER RATES MOST POWERFULLY IN THOSE

  COMMUNITIES WHERE THE CRIME OCCURRED AND ITS CONSEQUENCES ARE

  MOST STRONGLY BROUGHT HOME TO THE POPULATION. 

     "(D) LAW ENFORCEMENT OFFICERS WOULD BE SAFER FROM MURDEROUS

  ATTACKS IN STATES THAT HAVE THE DEATH PENALTY THAN IN THOSE

  WITHOUT IT."  /99/  (FOOTNOTE OMITTED.) 

SELLIN'S EVIDENCE INDICATES THAT NOT ONE OF THESE PROPOSITIONS IS
TRUE.  THIS EVIDENCE HAS ITS PROBLEMS, HOWEVER.  ONE IS THAT THERE ARE
NO ACCURATE FIGURES FOR CAPITAL MURDERS; THERE ARE ONLY FIGURES ON
HOMICIDES AND THEY, OF COURSE, INCLUDE NONCAPITAL KILLINGS.  /100/  A
SECOND PROBLEM IS THAT CERTAIN MURDERS UNDOUBTEDLY ARE MISINTERPRETED
AS ACCIDENTAL DEATHS OR SUICIDES, AND THERE IS NO WAY OF ESTIMATING THE
NUMBER OF SUCB UNDETECTED CRIMES.  A THIRD PROBLEM IS THAT NOT ALL
HOMICIDES ARE REPORTED.  DESPITE THESE DIFFICULTIES, MOST AUTHORITIES
HAVE ASSUMED THAT THE PROPORTION OF CAPITAL MURDERS IN A STATE'S OR
NATION'S HOMICIDE STATISTICS REMAINS REASONABLY CONSTANT, /101/  AND
THAT THE HOMICIDE STATISTICS ARE THEREFORE USEFUL. 

SELLIN'S STATISTICS DEMONSTRATE THAT THERE IS NO CORRELATION BETWEEN
THE MURDER RATE AND THE PRESENCE OR ABSENCE OF THE CAPITAL SANCTION. 
HE COMPARES STATES THAT HAVE SIMILAR CHARACTERISTICS AND FINDS THAT
IRRESPECTIVE OF THEIR POSITION ON CAPITAL PUNISHMENT, THEY HAVE SIMILAR
MURDER RATES.  IN THE NEW ENGLAND STATES, FOR EXAMPLE, THERE IS NO
CORRELATION BETWEEN EXECUTIONS /102/  AND HOMICIDE RATES.  /103/ THE
SAME IS TRUE FOR MIDWESTERN STATES, /104/  AND FOR ALL OTHERS STUDIED. 
BOTH THE UNITED NATIONS /105/  AND GREAT BRITAIN /106/  HAVE
ACKNOWLEDGED THE VALIDITY OF SELLIN'S STATISTICS. 

SELLIN ALSO CONCLUDES THAT ABOLITION AND/OR REINTRODUCTION OF THE
DEATH PENALTY HAD NO EFFECT ON THE HOMICIDE RATES OF THE VARIOUS STATES
INVOLVED.  /107/  THIS CONCLUSION IS BORNE OUT BY OTHERS WHO HAVE MADE
SIMILAR INQUIRIES /108/  AND BY THE EXPERIENCE OF OTHER COUNTRIES. 
/109/  DESPITE PROBLEMS WITH THE STATISTICS, /110/  SELLIN'S EVIDENCE
HAS BEEN RELIED UPON IN INTERNATIONAL STUDIES OF CAPITAL PUNISHMENT. 
/111/ 

STATISTICS ALSO SHOW THAT THE DETERRENT EFFECT OF CAPITAL PUNISHMENT
IS NO GREATER IN THOSE COMMUNITIES WHERE EXECUTIONS TAKE PLACE THAN IN
OTHER COMMUNITIES.  /112/  IN FACT, THERE IS SOME EVIDENCE THAT
IMPOSITION OF CAPITAL PUNISHMENT MAY ACTUALLY ENCOURAGE CRIME, RATHER
THAN DETER IT.  /113/  AND, WHILE POLICE AND LAW ENFORCEMENT OFFICERS
ARE THE STRONGEST ADVOCATES OF CAPITAL PUNISHMENT, /114/  THE EVIDENCE
IS OVERWHELMING THAT POLICE ARE NO SAFER IN COMMUNITIES THAT RETAIN THE
SANCTION THAN IN THOSE THAT HAVE ABOLISHED IT.  /115/ 

THERE IS ALSO A SUBSTANTIAL BODY OF DATA SHOWING THAT THE EXISTENCE
OF THE DEATH PENALTY HAS VIRTUALLY NO EFFECT ON THE HOMICIDE RATE IN
PRISONS.  /116/  MOST OF THE PERSONS SENTENCED TO DEATH ARE MURDERERS,
AND MURDERERS TEND TO BE MODEL PRISONERS.  /117/ 

IN SUM, THE ONLY SUPPORT FOR THE THEORY THAT CAPITAL PUNISHMENT IS
AN EFFECTIVE DETERRENT IS FOUND IN THE HYPOTHESES WITH WHICH WE BEGAN
AND THE OCCASIONAL STORIES ABOUT A SPECIFIC INDIVIDUAL BEING DETERRED
FROM DOING A CONTEMPLATED CRIMINAL ACT.  /118/  THESE CLAIMS OF
SPECIFIC DETERRENCE ARE OFTEN SPURIOUS, /119/  HOWEVER, AND MAY BE MORE
THAN COUNTERBALANCED BY THE TENDENCY OF CAPITAL PUNISHMENT TO INCITE
CERTAIN CRIMES.  /120/ 

THE UNITED NATIONS COMMITTEE THAT STUDIED CAPITAL PUNISHMENT FOUND
THAT "(IT IS GENERALLY AGREED BETWEEN THE RETENTIONISTS AND
ABOLITIONISTS, WHATEVER THEIR OPINIONS ABOUT THE VALIDITY OF
COMPARATIVE STUDIES OF DETERENCE, THAT THE DATA WHICH NOW EXIST SHOW NO
CORRELATION BETWEEN THE EXISTENCE OF CAPITAL PUNISHMENT AND LOWER RATES
OF CAPITAL CRIME."  /121/ 

DESPITE THE FACT THAT ABOLITIONISTS HAVE NOT PROVED NON-DETERRENCE
BEYOND A REASONABLE DOUBT, THEY HAVE SUCCEEDED IN SHOWING BY CLEAR AND
CONVINCING EVIDENCE THAT CAPITAL PUNISHMENT IS NOT NECESSARY AS A
DETERRENT TO CRIME IN OUR SOCIETY.  THIS IS ALL THAT THEY MUST DO.  WE
WOULD SHIRK OUR JUDICIAL RESPONSIBILITIES IF WE FAILED TO ACCEPT THE
PRESENTLY EXISTING STATISTICS AND DEMAND MORE PROOF.  IT MAY BE THAT WE
NOW POSSESS ALL THE PROOF THAT ANYONE COULD EVER HOPE TO ASSEMBLE ON
THE SUBJECT.  BUT, EVEN IF FURTHER PROOF WERE TO BE FORTHCOMING, I
BELIEVE THERE IS MORE THAN ENOUGH EVIDENCE PRESENTLY AVAILABLE FOR A
DECISION IN THIS CASE. 

IN 1793 WILLIAM BRADFORD STUDIED THE UTILITY OF THE DEATH PENALTY IN
PENNSYLVANIA AND FOUND THAT IT PROBABLY HAD NO DETERRENT EFFECT BUT
THAT MORE EVIDENCE WAS NEEDED.  /122/  EDWARD LIVINGSTON REACHED A
SIMILAR CONCLUSION WITH RESPECT TO DETERRENCE IN 1833 UPON COMPLETION
OF HIS STUDY FOR LOUISIANA.  /123/  VIRTUALLY EVERY STUDY THAT HAS
SINCE BEEN UNDERTAKEN HAS REACHED THE SAME RESULT.  /124/ 

IN LIGHT OF THE MASSIVE AMOUNT OF EVIDENCE BEFORE US, I SEE NO
ALTERNATIVE BUT TO CONCLUDE THAT CAPITAL PUNISHMENT CANNOT BE JUSTIFIED
ON THE BASIS OF ITS DETERRENT EFFECT.  /125/ 

C. MUCH OF WHAT MUST BE SAID ABOUT THE DEATH PENALTY AS A DEVICE TO
PREVENT RECIDIVISM IS OBVIOUS-- IF A MURDERER IS EXECUTED, HE CANNOT
POSSIBLY COMMIT ANOTHER OFFENSE.  THE FACT IS, HOWEVER, THAT MURDERERS
ARE EXTREMELY UNLIKELY TO COMMIT OTHER CRIMES EITHER IN PRISON OR UPON
THEIR RELEASE.  /126/  FOR THE MOST PART, THEY ARE FIRST OFFENDERS, AND
WHEN RELEASED FROM PRISON THEY ARE KNOWN TO BECOME MODEL CITIZENS. 
/127/  FURTHERMORE, MOST PERSONS WHO COMMIT CAPITAL CRIMES ARE NOT
EXECUTED.  WITH RESPECT TO THOSE WHO ARE SENTENCED TO DIE, IT IS
CRITICAL TO NOTE THAT THE JURY IS NEVER ASKED TO DETERMINE WHETHER THEY
ARE LIKELY TO BE RECIDIVISTS.  IN LIGHT OF THESE FACTS, IF CAPITAL
PUNISHMENT WERE JUSTIFIED PURELY ON THE BASIS OF PREVENTING RECIDIVISM,
IT WOULD HAVE TO BE CONSIDERED TO BE EXCESSIVE; NO GENERAL NEED TO
OBLITERATE ALL CAPITAL OFFENDERS COULD HAVE BEEN DEMONSTRATED, NOR ANY
SPECIFIC NEED IN INDIVIDUAL CASES. 

D. THE THREE FINAL PURPOSES WHICH MAY UNDERLIE UTILIZATION OF A
CAPITAL SANCTION-- ENCOURAGING GUILTY PLEAS AND CONFESSIONS, EUGENICS,
AND REDUCING STATE EXPENDITURES-- MAY BE DEALT WITH QUICKLY.  IF THE
DEATH PENALTY IS USED TO ENCOURAGE GUILTY PLEAS AND THUS TO DETER
SUSPECTS FROM EXERCISING THEIR RIGHTS UNDER THE SIXTH AMENDMENT TO JURY
TRIALS, IT IS UNCONSTITUTIONAL.  UNITED STATES V. JACKSON, 390 U.S. 570
(1968).  /128/  ITS ELIMINATION WOULD DO LITTLE TO IMPAIR THE STATE'S
BARGAINING POSITION IN CRIMINAL CASES, SINCE LIFE IMPRISONMENT REMAINS
A SEVERE SANCTION WHICH CAN BE USED AS LEVERAGE FOR BARGAINING FOR
PLEAS OR CONFESSIONS IN EXCHANGE EITHER FOR CHARGES OF LESSER OFFENSES
OR RECOMMENDATIONS OF LENIENCY. 

MOREOVER, TO THE EXTENT THAT CAPITAL PUNISHMENT IS USED TO ENCOURAGE
CONFESSIONS AND GUILTY PLEAS, IT IS NOT BEING USED FOR PUNISHMENT
PURPOSES.  A STATE THAT JUSTIFIES CAPITAL PUNISHMENT ON ITS UTILITY AS
PART OF THE CONVICTION PROCESS COULD NOT PROFESS TO RELY ON CAPITAL
PUNISHMENT AS A DETERRENT.  SUCH A STATE'S SYSTEM WOULD BE STRUCTURED
WITH TWIN GOALS ONLY:  OBTAINING GUILTY PLEAS AND CONFESSIONS AND
IMPOSING IMPRISONMENT AS THE MAXIMUM SANCTION.  SINCE LIFE IMPRISONMENT
IS SUFFICIENT FOR BARGAINING PURPOSES, THE DEATH PENALTY IS EXCESSIVE
IF USED FOR THE SAME PURPOSES. 

IN LIGHT OF THE PREVIOUS DISCUSSION ON DETERRENCE, ANY SUGGESTIONS
CONCERNING THE EUGENIC BENEFITS OF CAPITAL PUNISHMENT ARE OBVIOUSLY
MERITLESS.  /129/  AS I POINTED OUT ABOVE, THERE IS NOT EVEN ANY
ATTEMPT MADE TO DISCOVER WHICH CAPITAL OFFENDERS ARE LIKELY TO BE
RECIDIVISTS, LET ALONE WHICH ARE POSITIVELY INCURABLE.  NO TEST OR
PROCEDURE PRESENTLY EXISTS BY WHICH INCURABLES CAN BE SCREENED FROM
THOSE WHO WOULD BENEFIT FROM TREATMENT.  ON THE ONE HAND, DUE PROCESS
WOULD SEEM TO REQUIRE THAT WE HAVE SOME PROCEDURE TO DEMONSTRATE
INCURABILITY BEFORE EXECUTION; AND, ON THE OTHER HAND, EQUAL PROTECTION
WOULD THEN SEEMINGLY REQUIRE THAT ALL INCURABLES BE EXECUTED, CF.
SKINNER V. OKLAHOMA, 316 U.S. 535 (1942).  IN ADDITION, THE "CRUEL AND
UNUSUAL" LANGUAGE WOULD REQUIRE THAT LIFE IMPRISONMENT, TREATMENT, AND
STERILIZATION BE INADEQUATE FOR EUGENIC PURPOSES.  MORE IMPORTANTLY,
THIS NATION HAS NEVER FORMALLY PROFESSED EUGENIC GOALS, AND THE HISTORY
OF THE WORLD DOES NOT LOOK KINDLY ON THEM.  IF EUGENICS IS ONE OF OUR
PURPOSES, THEN THE LEGISLATURES SHOULD SAY SO FORTHRIGHTLY AND DESIGN
PROCEDURES TO SERVE THIS GOAL.  UNTIL SUCH TIME, I CAN ONLY CONCLUDE,
AS HAS VIRTUALLY EVERYONE ELSE WHO HAS LOOKED AT THE PROBLEM, /130/
THAT CAPITAL PUNISHMENT CANNOT BE DEFENDED ON THE BASIS OF ANY EUGENIC
PURPOSES.     AS FOR THE ARGUMENT THAT IT IS CHEAPER TO EXECUTE A
CAPITAL OFFENDER THAN TO IMPRISON HIM FOR LIFE, EVEN ASSUMING THAT SUCH
AN ARGUMENT, IF TRUE, WOULD SUPPORT A CAPITAL SANCTION, IT IS SIMPLY
INCORRECT.  A DISPROPORTIONATE AMOUNT OF MONEY SPENT ON PRISONS IS
ATTRIBUTABLE TO DEATH ROW.  /131/  CONDEMNED MEN ARE NOT PRODUCTIVE
MEMBERS OF THE PRISON COMMUNITY, ALTHOUGH THEY COULD BE, /132/  AND
EXECUTIONS ARE EXPENSIVE.  /133/  APPEALS ARE OFTEN AUTOMATIC AND
COURTS ADMITTEDLY SPEND MORE TIME WITH DEATH CASES.  /134/ 

AT TRIAL, THE SELECTION OF JURORS IS LIKELY TO BECOME A COSTLY, TIME
CONSUMING PROBLEM IN A CAPITAL CASE, /135/  AND DEFENSE COUNSEL WILL
REASONABLY EXHAUST EVERY POSSIBLE MEANS TO SAVE HIS CLIENT FROM
EXECUTION, NO MATTER HOW LONG THE TRIAL TAKES. 

DURING THE PERIOD BETWEEN CONVICTION AND EXECUTION, THERE ARE AN
INORDINATE NUMBER OF COLLATERAL ATTACKS ON THE CONVICTION AND ATTEMPTS
TO OBTAIN EXECUTIVE CLEMENCY, ALL OF WHICH EXHAUST THE TIME, MONEY, AND
EFFORT OF THE STATE.  THERE ARE ALSO CONTINUAL ASSERTIONS THAT THE
CONDEMNED PRISONER HAS GONE INSANE.  /136/  BECAUSE THERE IS A FORMALLY
ESTABLISHED POLICY OF NOT EXECUTING INSANE PERSONS, /137/  GREAT SUMS
OF MONEY MAY BE SPENT ON DETECTING AND CURING MENTAL ILLNESS IN ORDER
TO PERFORM THE EXECUTION.  /138/  SINCE NO ONE WANTS THE RESPONSIBILITY
FOR THE EXECUTION, THE CONDEMNED MAN IS LIKELY TO BE PASSED BACK AND
FORTH FROM DOCTORS TO CUSTODIAL OFFICIALS TO COURTS LIKE A PING-PONG
BALL.  /139/  THE ENTIRE PROCESS IS VERY COSTLY. 

WHEN ALL IS SAID AND DONE, THERE CAN BE NO DOUBT THAT IT COSTS MORE
TO EXECUTE A MAN THAN TO KEEP HIM IN PRISON FOR LIFE.  /140/ 

E. THERE IS BUT ONE CONCLUSION THAT CAN BE DRAWN FROM ALL OF THIS--
I.E., THE DEATH PENALTY IS AN EXCESSIVE AND UNNECESSARY PUNISHMENT THAT
VIOLATES THE EIGHTH AMENDMENT.  THE STATISTICAL EVIDENCE IS NOT
CONVINCING BEYOND ALL DOUBT, BUT IT IS PERSUASIVE.  IT IS NOT IMPROPER
AT THIS POINT TO TAKE JUDICIAL NOTICE OF THE FACT THAT FOR MORE THAN
200 YEARS MEN HAVE LABORED TO DEMONSTRATE THAT CAPITAL PUNISHMENT
SERVES NO PURPOSE THAT LIFE IMPRISONMENT COULD NOT SERVE EQUALLY WELL. 
AND THEY HAVE DONE SO WITH GREAT SUCCESS.  LITTLE, IF ANY, EVIDENCE HAS
BEEN ADDUCED TO PROVE THE CONTRARY.  THE POINT HAS NOW BEEN REACHED AT
WHICH DEFERENCE TO THE LEGISLATURES IS TANTAMOUNT TO ABDICATION OF OUR
JUDICIAL ROLES AS FACTFINDERS, JUDGES, AND ULTIMATE ARBITERS OF THE
CONSTITUTION.  WE KNOW THAT AT SOME POINT THE PRESUMPTION OF
CONSTITUTIONALITY ACCORDED LEGISLATIVE ACTS GIVES WAY TO A REALISTIC
ASSESSMENT OF THOSE ACTS.  THIS POINT COMES WHEN THERE IS SUFFICIENT
EVIDENCE AVAILABLE SO THAT JUDGES CAN DETERMINE, NOT WHETHER THE
LEGISLATURE ACTED WISELY, BUT WHETHER IT HAD ANY RATIONAL BASIS
WHATSOEVER FOR ACTING.  WE HAVE THIS EVIDENCE BEFORE US NOW.  THERE IS
NO RATIONAL BASIS FOR CONCLUDING THAT CAPITAL PUNISHMENT IS NOT
EXCESSIVE.  IT THEREFORE VIOLATES THE EIGHTH AMENDMENT.  /141/

       VI 

IN ADDITION, EVEN IF CAPITAL PUNISHMENT IS NOT EXCESSIVE, IT
NONETHELESS VIOLATES THE EIGHTH AMENDMENT BECAUSE IT IS MORALLY
UNACCEPTABLE TO THE PEOPLE OF THE UNITED STATES AT THIS TIME IN THEIR
HISTORY. 

IN JUDGING WHETHER OR NOT A GIVEN PENALTY IS MORALLY ACCEPTABLE,
MOST COURTS HAVE SAID THAT THE PUNISHMENT IS VALID UNLESS "IT SHOCKS
THE CONSCIENCE AND SENSE OF JUSTICE OF THE PEOPLE."  /142/ 

JUDGE FRANK ONCE NOTED THE PROBLEMS INHERENT IN THE USE OF SUCH A
MEASURING STICK: 

"(THE COURT,) BEFORE IT REDUCES A SENTENCE AS 'CRUEL AND UNUSUAL,'
MUST HAVE REASONABLY GOOD ASSURANCES THAT THE SENTENCE OFFENDS THE
'COMMON CONSCIENCE.'  AND, IN ANY CONTEXT, SUCH A STANDARD-- THE
COMMUNITY'S ATTITUDE-- IS USUALLY AN UNKNOWABLE.  IT RESEMBLES A
SLITHERY SHADOW, SINCE ONE CAN SELDOM LEARN, AT ALL ACCURATELY, WHAT
THE COMMUNITY, OR A MAJORITY, ACTUALLY FEELS.  EVEN A CAREFULLY-TAKEN
'PUBLIC OPINION POLL' WOULD BE INCONCLUSIVE IN A CASE LIKE THIS." 
/143/ WHILE A PUBLIC OPINION POLL OBVIOUSLY IS OF SOME ASSISTANCE IN
INDICATING PUBLIC ACCEPTANCE OR REJECTION OF A SPECIFIC PENALTY, /144/
ITS UTILITY CANNOT BE VERY GREAT.  THIS IS BECAUSE WHETHER OR NOT A
PUNISHMENT IS CRUEL AND UNUSUAL DEPENDS, NOT ON WHETHER ITS MERE
MENTION "SHOCKS THE CONSCIENCE AND SENSE OF JUSTICE OF THE PEOPLE," BUT
ON WHETHER PEOPLE WHO WERE FULLY INFORMED AS TO THE PURPOSES OF THE
PENALTY AND ITS LIABILITIES WOULD FIND THE PENALTY SHOCKING, UNJUST,
AND UNACCEPTABLE.  /145/ 

IN OTHER WORDS, THE QUESTION WITH WHICH WE MUST DEAL IS NOT WHETHER
A SUBSTANTIAL PROPORTION OF AMERICAN CITIZENS WOULD TODAY, IF POLLED,
OPINE THAT CAPITAL PUNISHMENT IS BARBAROUSLY CRUEL, BUT WHETHER THEY
WOULD FIND IT TO BE SO IN THE LIGHT OF ALL INFORMATION PRESENTLY
AVAILABLE. 

THIS IS NOT TO SUGGEST THAT WITH RESPECT TO THIS TEST OF
UNCONSTITUTIONALITY PEOPLE ARE REQUIRED TO ACT RATIONALLY; THEY ARE
NOT.  WITH RESPECT TO THIS JUDGMENT, A VIOLATION OF THE EIGHTH
AMENDMENT IS TOTALLY DEPENDENT ON THE PREDICATABLE SUBJECTIVE,
EMOTIONAL REACTIONS OF INFORMED CITIZENS.  /146/ 

IT HAS OFTEN BEEN NOTED THAT AMERICAN CITIZENS KNOW ALMOST NOTHING
ABOUT CAPITAL PUNISHMENT.  /147/  SOME OF THE CONCLUSIONS ARRIVED AT IN
THE PRECEEDING SECTION AND THE SUPPORTING EVIDENCE WOULD BE CRITICAL TO
AN INFORMED JUDGMENT ON THE MORALITY OF THE DEATH PENALTY:  E.G., THAT
THE DEATH PENALTY IS NO MORE EFFECTIVE A DETERRENT THAN LIFE
IMPRISONMENT, THAT CONVICTED MURDERERS ARE RARELY EXECUTED, BUT ARE
USUALLY SENTENCED TO A TERM IN PRISON; THAT CONVICTED MURDERERS USUALLY
ARE MODEL PRISONERS, AND THAT THEY ALMOST ALWAYS BECOME LAWABIDING
CITIZENS UPON THEIR RELEASE FROM PRISON; THAT THE COSTS OF EXECUTING A
CAPITAL OFFENDER EXCEED THE COSTS OF IMPRISONING HIM FOR LIFE; THAT
WHILE IN PRISON, A CONVICT UNDER SENTENCE OF DEATH PERFORMS NONE OF THE
USEFUL FUNCTIONS THAT LIFE PRISONERS PERFORM; THAT NO ATTEMPT IS MADE
IN THE SENTENCING PROCESS TO FERRET OUT LIKELY RECIDIVISTS FOR
EXECUTION; AND THAT THE DEATH PENALTY MAY ACTUALLY STIMULATE CRIMINAL
ACTIVITY. 

THIS INFORMATION WOULD ALMOST SURELY CONVINCE THE AVERAGE CITIZEN
THAT THE DEATH PENALTY WAS UNWISE, BUT A PROBLEM ARISES AS TO WHETHER
IT WOULD CONVINCE HIM THAT THE PENALTY WAS MORALLY REPREHENSIBLE.  THIS
PROBLEM ARISES FROM THE FACT THAT THE PUBLIC'S DESIRE FOR RETRIBUTION,
EVEN THOUGH THIS IS A GOAL THAT THE LEGISLATURE CANNOT CONSTITUTIONALLY
PURSUE AS ITS SOLE JUSTIFICATION FOR CAPITAL PUNISHMENT, MIGHT
INFLUENCE THE CITIZENRY'S VIEW OF THE MORALITY OF CAPITAL PUNISHMENT. 
THE SOLUTION TO THE PROBLEM LIES IN THE FACT THAT NO ONE HAS EVER
SERIOUSLY ADVANCED RETRIBUTION AS A LEGITIMATE GOAL OF OUR SOCIETY. 
DEFENSES OF CAPITAL PUNISHMENT ARE ALWAYS MOUNTED ON DETERRENT OR OTHER
SIMILAR THEORIES.  THIS SHOULD NOT BE SURPRISING.  IT IS THE PEOPLE OF
THIS COUNTRY WHO HAVE URGED IN THE PAST THAT PRISONS REHABILITATE AS
WELL AS ISOLATE OFFENDERS, AND IT IS THE PEOPLE WHO HAVE INJECTED A
SENSE OF PURPOSE INTO OUR PENOLOGY.  I CANNOT BELIEVE THAT AT THIS
STAGE IN OUR HISTORY, THE AMERICAN PEOPLE WOULD EVER KNOWINGLY SUPPORT
PURPOSELESS VENGEANCE.  THUS, I BELIEVE THAT THE GREAT MASS OF CITIZENS
WOULD CONCLUDE ON THE BASIS OF THE MATERIAL ALREADY CONSIDERED THAT THE
DEATH PENALTY IS IMMORAL AND THEREFORE UNCONSTITUTIONAL. 

BUT, IF THIS INFORMATION NEEDS SUPPLEMENTING, I BELIEVE THAT THE
FOLLOWING FACTS WOULD SERVE TO CONVINCE EVEN THE MOST HESITANT OF
CITIZENS TO CONDEMN DEATH AS A SANCTION:  CAPITAL PUNISHMENT IS IMPOSED
DISCRIMINATORILY AGAINST CERTAIN IDENTIFIABLE CLASSES OF PEOPLE; THERE
IS EVIDENCE THAT INNOCENT PEOPLE HAVE BEEN EXECUTED BEFORE THEIR
INNOCENCE CAN BE PROVED; AND THE DEATH PENALTY WRECKS HAVOC WITH OUR
ENTIRE CRIMINAL JUSTICE SYSTEM.  EACH OF THESE FACTS IS CONSIDERED
BRIEFLY BELOW. 

REGARDING DISCRIMINATION, IT HAS BEEN SAID THAT "(IT IS USUALLY THE
POOR, THE ILLITERATE, AND THE UNDERPRIVILEGED, THE MEMBER OF THE
MINORITY GROUP-- THE MAN WHO, BECAUSE HE IS WITHOUT MEANS, AND IS
DEFENDED BY A COURT-APPOINTED ATTORNEY-- WHO BECOMES SOCIETY'S
SACRIFICIAL LAMB . . . "  /148/  INDEED, A LOOK AT THE BARE STATISTICS
REGARDING EXECUTIONS IS ENOUGH TO BETRAY MUCH OF THE DISCRIMINATION.  A
TOTAL OF 3,859 PERSONS HAVE BEEN EXECUTED SINCE 1930, OF WHOM 1,751
WERE WHITE AND 2,066 WERE NEGRO.  /149/  OF THE EXECUTIONS, 3,334 WERE
FOR MURDER; 1,664 OF THE EXECUTED MURDERERS WERE WHITE AND 1,630 WERE
NEGRO; /150/  455 PERSONS, INCLUDING 48 WHITES AND 405 NEGROES, WERE
EXECUTED FOR RAPE.  /151/  IT IS IMMEDIATELY APPARENT THAT NEGROES WERE
EXECUTED FAR MORE OFTEN THAN WHITES IN PROPORTION TO THEIR PERCENTAGE
OF THE POPULATION.  STUDIES INDICATE THAT WHILE THE HIGHER RATE OF
EXECUTION AMONG NEGROES IS PARTIALLY DUE TO A HIGHER RATE OF CRIME,
THERE IS EVIDENCE OF RACIAL DISCRIMINATION.  /152/  RACIAL OR OTHER
DISCRIMINATIONS SHOULD NOT BE SURPRISING.  IN MCGAUTHA V. CALIFORNIA,
402 U.S.,AT 207, THIS COURT HELD "THAT COMMITTING TO THE UNTRAMMELED
DISCRETION OF THE JURY THE POWER TO PRONOUNCE LIFE OR DEATH IN CAPITAL
CASES IS (NOT) OFFENSIVE TO ANYTHING IN THE CONSTITUTION."  THIS WAS AN
OPEN INVITATION TO DISCRIMINATION. 

THERE IS ALSO OVERWHELMING EVIDENCE THAT THE DEATH PENALTY IS
EMPLOYED AGAINST MEN AND NOT WOMEN.  ONLY 32 WOMEN HAVE BEEN EXECUTED
SINCE 1930, WHILE, 3,827 MEN HAVE MET A SIMILAR FATE.  /153/  IT IS
DIFFICULT TO UNDERSTAND WHY WOMEN HAVE RECEIVED SUCH FAVORED TREATMENT
SINCE THAT PURPOSES ALLEGEDLY SERVED BY CAPITAL PUNISHMENT SEEMINGLY
ARE EQUALLY APPLICABLE TO BOTH SEXES.  /154/ 

IT ALSO IS EVIDENT THAT THE BURDEN OF CAPITAL PUNISHMENT FALLS UPON
THE POOR, THE IGNORANT, AND THE UNDERPRIVILEGED MEMBERS OF SOCIETY. 
/155/  IT IS THE POOR, AND THE MEMBERS OF MINORITY GROUPS WHO ARE LEAST
ABLE TO VOICE THEIR COMPLAINTS AGAINST CAPITAL PUNISHMENT.  THEIR
IMPOTENCE LEAVES THEM VICTIMS OF A SANCTION THAT THE WEALTHIER, BETTER
REPRESENTED, JUST-AS-GUILTY PERSON CAN ESCAPE.  SO LONG AS THE CAPITAL
SANCTION IS USED ONLY AGAINST THE FORLORN, EASILY FORGOTTEN MEMBERS OF
SOCIETY, LEGISLATORS ARE CONTENT TO MAINTAIN THE STATUS QUO, BECAUSE
CHANGE WOULD DRAW ATTENTION TO THE PROBLEM AND CONCERN MIGHT DEVELOP. 
IGNORANCE IS PERPETUATED AND APATHY SOON BECOMES ITS MATE, AND WE HAVE
TODAY'S SITUATION. 

JUST AS AMERICANS KNOW LITTLE ABOUT WHO IS EXECUTED AND WHY, THEY
ARE UNAWARE OF THE POTENTIAL DANGERS OF EXECUTING AN INNOCENT MAN.  OUR
"BEYOND A REASONABLE DOUBT" BURDEN OF PROOF IN CRIMINAL CASES IS
INTENDED TO PROTECT THE INNOCENT, BUT WE KNOW IT IS NOT FOOLPROOF. 
VARIOUS STUDIES HAVE SHOWN THAT PEOPLE WHOSE INNOCENCE IS LATER
CONVINCINGLY ESTABLISHED ARE CONVICTED AND SENTENCED TO DEATH.  /156/ 

PROVING ONE'S INNOCENCE AFTER A JURY FINDING OF GUILT IS ALMOST
IMPOSSIBLE.  WHILE REVIEWING COURTS ARE WILLING TO ENTERTAIN ALL KINDS
OF COLLATERAL ATTACKS WHERE A SENTENCE OF DEATH IS INVOLVED, THEY VERY
RARELY DISPUTE THE JURY'S INTERPRETATION OF THE EVIDENCE.  THIS IS,
PERHAPS, AS IT SHOULD BE.  BUT, IF AN INNOCENT MAN HAS BEEN FOUND
GUILTY, HE MUST THEN DEPEND ON THE GOOD FAITH OF THE PROSECUTOR'S
OFFICE TO HELP HIM ESTABLISH HIS INNOCENCE.  THIS IS EVIDENCE, HOWEVER,
THAT PROSECUTORS DO NOT WELCOME THE IDEA OF HAVING CONVICTIONS, WHICH
THEY LABORED HARD TO SECURE OVERTURNED, AND THAT THEIR COOPERATION IS
HIGHLY UNLIKELY.  /157/ 

NO MATTER HOW CAREFUL COURTS ARE, THE POSSIBILITY OF PERJURED
TESTIMONY, MISTAKEN HONEST TESTIMONY, AND HUMAN ERROR REMAIN ALL TOO
REAL.  /158/  WE HAVE NO WAY OF JUDGING HOW MANY INNOCENT PERSONS HAVE
BEEN EXECUTED BUT WE CAN BE CERTAIN THAT THERE WERE SOME.  WHETHER
THERE WERE MANY IS AN OPEN QUESTION MADE DIFFICULT BY THE LOSS OF THOSE
WHO WERE MOST KNOWLEDGEABLE ABOUT THE CRIME FOR WHICH THEY WERE
CONVICTED.  SURELY THERE WILL BE MORE AS LONG AS CAPITAL PUNISHMENT
REMAINS PART OF OUR PENAL LAW. 

WHILE IT IS DIFFICULT TO ASCERTAIN WITH CERTAINTY THE DEGREE TO
WHICH THE DEATH PENALTY IS DISCRIMINATORILY IMPOSED OR THE NUMBER OF
INNOCENT PERSONS SENTENCED TO DIE, THERE IS ONE CONCLUSION ABOUT THE
PENALTY THAT IS UNIVERSALLY ACCEPTED-- I.E., IT "TENDS TO DISTORT THE
COURSE OF THE CRIMINAL LAW."  /159/  AS MR. JUSTICE FRANKFURTER SAID: 

"I AM STRONGLY AGAINST CAPITAL PUNISHMENT . . . WHEN LIFE IS AT
HAZARD IN A TRIAL, IT SENSATIONALIZES THE WHOLE THING ALMOST
UNWITTINGLY; THE EFFECT ON JURIES, THE BAR, THE PUBLIC, THE JUDICIARY,
I REGARD AS VERY BAD.  I THINK SCIENTIFICALLY THE CLAIM OF DETERRENCE
IS NOT WORTH MUCH.  WHATEVER PROOF THERE MAY BE IN MY JUDGMENT DOES NOT
OUTWEIGH THE SOCIAL LOSS DUE TO THE INHERENT SENSATIONALISM OF A TRIAL
FOR LIFE."  /160/ THE DELETERIOUS EFFECTS OF THE DEATH PENALTY ARE ALSO
FELT OTHERWISE THAN AT TRIAL.  FOR EXAMPLE, ITS VERY EXISTENCE
"INEVITABLY SABOTAGES A SOCIAL OR INSTITUTIONAL PROGRAM OF
REFORMATION."  /161/  IN SHORT "(THE PRESENCE OF THE DEATH PENALTY AS
THE KEYSTONE OF OUR PENAL SYSTEM BEDEVILS THE ADMINISTRATION OF
CRIMINAL JUSTICE ALL THE WAY DOWN THE LINE AND IS THE STUMBLING BLOCK
IN THE PATH OF GENERAL REFORM AND OF THE TREATMENT OF CRIME AND
CRIMINALS."  /162/ 

ASSUMING KNOWLEDGE OF ALL THE FACTS PRESENTLY AVAILABLE REGARDING
CAPITAL PUNISHMENT, THE AVERAGE CITIZEN WOULD, IN MY OPINION, FIND IT
SHOCKING TO HIS CONSCIENCE AND SENSE OF JUSTICE.  /163/  FOR THIS
REASON ALONE CAPITAL PUNISHMENT CANNOT STAND. 

     VII 

TO ARRIVE AT THE CONCLUSION THAT THE DEATH PENALTY VIOLATES THE
EIGHTH AMENDMENT, WE HAVE HAD TO ENGAGE IN A LONG AND TEDIOUS JOURNEY. 
THE AMOUNT OF INFORMATION THAT WE HAVE ASSEMBLED AND SORTED IS
ENORMOUS.  YET, I FIRMLY BELIEVE THAT WE HAVE NOT DEVIATED IN THE
SLIGHTEST FROM THE PRINCIPLES WITH WHICH WE BEGAN.     AT A TIME IN OUR
HISTORY WHEN THE STREETS OF THE NATION'S CITIES INSPIRE FEAR AND
DISPAIR, RATHER THAN PRIDE AND HOPE, IT IS DIFFICULT TO MAINTAIN
OBJECTIVITY AND CONCERN FOR OUR FELLOW CITIZENS.  BUT, THE MEASURE OF A
COUNTRY'S GREATNESS IS ITS ABILITY TO RETAIN COMPASSION IN TIME OF
CRISES.  NO NATION IN THE RECORDED HISTORY OF MAN HAS A GREATER
TRADITION OF REVERING JUSTICE AND FAIR TREATMENT FOR ALL ITS CITIZENS
IN TIMES OF TURMOIL, CONFUSION, AND TENSION THAN OURS.  THIS IS A
COUNTRY WHICH STANDS TALLEST IN TROUBLED TIMES, A COUNTRY THAT CLINGS
TO FUNDAMENTAL PRINCIPLES, CHERISHES ITS CONSTITUTIONAL HERITAGE, AND
REJECTS SIMPLE SOLUTIONS THAT COMPROMISE THE VALUES THAT LIE AT THE
ROOTS OF OUR DEMOCRATIC SYSTEM. 

IN S-RIKING DOWN CAPITAL PUNISHMENT, THIS COURT DOES NOT MALIGN OUR
SYSTEM OF GOVERNMENT.  ON THE CONTRARY, IT PAYS HOMAGE TO IT.  ONLY IN
A FREE SOCIETY COULD RIGHT TRIUMPH IN DIFFICULT TIMES, AND COULD
CIVILIZATION RECORD ITS MAGNIFICENT ADVANCEMENT.  IN RECOGNIZING THE
HUMANITY OF OUR FELLOW BEINGS, WE PAY OURSELVES THE HIGHEST TRIBUTE. 
WE ACHIEVE "A MAJOR MILESTONE IN THE LONG ROAD UP FROM BARBARISM"
/164/  AND JOIN THE APPROXIMATELY 70 OTHER JURISDICTIONS IN THE WORLD
WHICH CELEBRATE THEIR REGARD FOR CIVILIZATION AND HUMANITY BY SHUNNING
CAPITAL PUNISHMENT.  /165/ 

I CONCUR IN THE JUDGMENTS OF THE COURT. 

(APPENDICES I, II, AND III FOLLOW.) 

/1/  CERTIORARI WAS ALSO GRANTED IN A FOURTH CASE, AIKENS V.
CALIFORNIA NO. 68-5027, BUT THE WRIT WAS DISMISSED AFTER THE CALIFORNIA
SUPREME COURT HELD THAT CAPITAL PUNISHMENT VIOLATES THE STATE
CONSTITUTION.  406 U.S. 813.  SEE PEOPLE V. ANDERSON, 6 CAL.3D 628, 493
P.2D 880, CERT. DENIED, 406 U.S. 958 (1972).  THE CALIFORNIA DECISION
REDUCED BY SLIGHTLY MROE THAN 100 THE NUMBER OF PERSONS CURRENTLY
AWAITING EXECUTION. 

/2/  268 PARL.DEB.,H.L. (5TH SER.)  703 (1965) (LORD CHANCELLOR
GARDINER). 

/3/  COMPARE, E.G., LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S.
459, 470 (1947) (FRANKFURTER, J., CONCURRING), WITH F. FRANKFURTER, OF
LAW AND MEN 81 (1956).  SEE IN RE ANDERSON 69 CAL.2D 613, 634-635, 447
P.2D 117, 131-132 (1968) (MOSK, J., CONCURRING); CF. MCGAUTHA V.
CALIFORNIA, 402 U.S. 183, 226 (1971) (SEPARATE OPINION OF BLACK, J.);
WITHERSPOON V. ILLINOIS, 391 U.S. 510, 542 (1968) (WHITE, J.,
DISSENTING). 

/4/  SEE GENERALLY FRANKEL, BOOK REVIEW, 85 HAR.L.REV.  354, 362
(1971). 

/5/  GRANUCCI, "NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED:"  THE
ORIGINAL MEANING, 57 CALIF.L.REV.  839, 848 (1969). 

/6/  IBID.  BEALE'S VIEWS WERE CONVEYED FROM ENGLAND TO AMERICA AND
WERE FIRST WRITTEN INTO AMERICAN LAW BY THE REVEREND NATHANIEL WARD WHO
WROTE THE BODY OF LIBERTIES FOR THE MASSACHUSETTS BAY COLONY.  CLAUSE
46 OF THAT WORK READ:  "FOR BODILIE PUNISHMENTS WE ALLOW AMONGST US
NONE THAT ARE INHUMANE, BARBAROUS OR CRUEL."  1 B.SCHWARTZ, THE BILL OF
RIGHTS:  A DOCUMENTARY HISTORY 71, 77 (1971). 

/7/  4 W.BLACKSTONE, COMMENTARIES *376-377.  SEE ALSO 1 J.CHITTY,
THE CRIMINAL LAW 785-786 (5TH ED. 1847); SHERMAN, " . . . NOR CRUEL AND
UNUSUAL PUNISHMENTS INFLICTED," 14 CRIME & DELIN.  73, 74 (1968). 

/8/  NOT CONTENT WITH CAPITAL PUNISHMENT AS A MEANS OF RETRIBUTION
FOR CRIMES, THE ENGLISH ALSO PROVIDED FOR ATTAINDER ("DEAD IN LAW") AS
THE IMMEDIATE AND INSEPARABLE CONCOMITANT OF THE DEATH SENTENCE.  THE
CONSEQUENCES OF ATTAINDER WERE FORFEITURE OF REAL AND PERSONAL ESTATES
AND CORRUPTION OF BLOOD.  AN ATTAINTED PERSON COULD NOT INHERIT LAND OR
OTHER HEREDITAMENTS, NOR RETAIN THOSE HE POSSESSED, NOR TRANSMIT THEM
BY DESCENT TO ANY HEIR.  DESCENTS WERE ALSO OBSTRUCTED WHENEVER
POSTERITY DERIVED A TITLE THROUGH ONE WHO WAS ATTAINTED.  4
W.BLACKSTONE, COMMENTARIES *380-381. 

/9/  E.G., 2 J.STORY, ON THE CONSTITUTION 1903, P. 650 (5TH ED.
1891). 

/10/  2 G.TREVELYAN, HISTORY OF ENGLAND 467 (1952 REISSUE). 

/11/  GRANUCCI, SUPRA, N. 5, AT 854. 

/12/  ID., AT 855. 

/13/  ID., AT 860.  IN REACHING THIS CONCLUSION, PROFESSOR CRANUCCI
RELIES PRIMARILY ON THE TRIAL OF TITUS OATES AS THE IMPETUS BEHIND THE
ADOPTION OF THE CLAUSE.  OATES WAS A MINISTER OF THE CHURCH OF ENGLAND
WHO PROCLAIMED THE EXISTENCE OF A PLOT TO ASSASSINATE KING CHARLES II.
HE WAS TRIED FOR PERJURY, CONVICTED, AND SENTENCED TO A FINE OF 2,000
MARKS, LIFE IMPRISONMENT, WHIPPINGS, PILLORYING FOUR TIMES A YEAR, AND
DEFROCKING.  OATES PETITIONED BOTH THE HOUSE OF COMMONS AND THE HOUSE
OF LORDS FOR RELEASE FROM JUDGMENT.  THE HOUSE OF LORDS REJECTED HIS
PETITION, BUT A MINORITY OF ITS MEMBERS CONCLUDED THAT THE KING'S BENCH
HAD NO JURISDICTION TO COMPEL DEFROCKING AND THAT THE OTHER PUNISHMENTS
WERE BARBAROUS, INHUMANE, UNCHRISTIAN, AND UNAUTHORIZED BY LAW.  THE
HOUSE OF COMMONS AGREED WITH THE DISSENTING LORDS.  ID., AT 857-859. 

THE AUTHOR ALSO RELIED ON THE DICTIONARY DEFINITION OF "CRUEL,"
WHICH MEANT "SEVERE" OR "HARD" IN THE 17TH CENTURY, TO SUPPORT HIS
CONCLUSION.  IBID. 

/14/  MOST HISTORIANS REACH THIS CONCLUSION BY READING THE HISTORY
OF THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE AS INDICATING THAT IT WAS A
REACTION TO INHUMANE PUNISHMENTS.  PROFESSOR GRANUCCI REACHES THE SAME
CONCLUSION BY FINDING THAT THE DRAFTSMEN OF THE CONSTITUTION MISREAD
THE BRITISH HISTORY AND ERRONEOUSLY RELIED ON BLACKSTONE.  GRANUCCI,
SUPRA, N. 5, AT 862-865.  IT IS CLEAR, HOWEVER, THAT PRIOR TO THE
ADOPTION OF THE AMENDMENT THERE WAS SOME FEELING THAT A SAFEGARD
AGAINST CRUELTY WAS NEEDED AND THAT THIS FEELING HAD SUPPORT IN PAST
PRACTICES.  SEE N. 6, SUPRA, AND ACCOMPANYING TEXT. 

/15/  GRANNUCCI, SUPRA, N. 5, AT 840; 1 SCHWARTZ, SUPRA, N. 6, AT
276, 278. 

/16/  SEE, E.G., DELAWARE DECLARATION OF RIGHTS (1776), MARYLAND
DECLARATION OF RIGHTS (1776), MASSACHUSETTS DECLARATION OF RIGHTS
(1780), AND NEW HAMPSHIRE BILL OF RIGHTS (1783).  1 SCHWARTZ, SUPRA, N.
6, AT 276, 278; 279, 281; 337, 343; 374, 379. 

/17/  SEE 2 J.ELLIOT'S DEBATES 111 (2D ED. 1876); 3 ID.,AT 447-481. 
SEE ALSO, 2 SCHWARTZ, SUPRA, N. 6, AT 629, 674, 762, 852, 968. 

/18/  3 ELLIOT, SUPRA, N. 17, AT 446-448.  A COMMENT BY GEORGE MASON
WHICH MISINTERPRETS A CRITICISM LEVELED AT HIMSELF AND PATRICK HENRY IS
FURTHER EVIDENCE OF THE INTENTION TO PROHIBIT TORTURE AND THE LIKE BY
PROHIBITING CRUEL AND UNUSUAL PUNISHMENTS.  ID., AT 452. 

/19/  1 ANNALS OF CONG. 782-783 (1789).  THERE IS SOME RECOGNITION
OF THE FACT THAT A PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENTS IS
A FLEXIBLE PROHIBITION THAT MAY CHANGE IN MEANING AS THE MORES OF A
SOCIETY CHANGE, AND THAT MAY EVENTUALLY BAR CERTAIN PUNISHMENTS NOT
BARRED WHEN THE CONSTITUTION WAS ADOPTED.  IBID. (REMARKS OF MR.
LIVERMORE OF NEW HAMPSHIRE).  THERE IS ALSO EVIDENCE THAT THE GENERAL
OPINION AT THE TIME THE EIGHTH AMENDMENT WAS ADOPTED WAS THAT IT
PROHIBITED EVERY PUNISHMENT THAT WAS NOT "EVIDENTLY NECESSARY."  W.
BRADFORD, AN ENQUIRY HOW FAR THE PUNISHMENT OF DEATH IS NECESSARY IN
PENNSYLVANIA (1793), REPRINTED IN 12 AM.J.LEGAL HIST. 122, 137 (1968). 

/20/  THE NEW YORK COURT OF APPEALS HAD RECOGNIZED THE UNUSUAL
NATURE OF THE EXECUTION, BUT ATTRIBUTED IT TO A LEGISLATIVE DESIRE TO
MINIMIZE THE PAIN OF PERSONS EXECUTED. 

/21/  THE PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENTS RELEVANT
TO WEEMS WERE THAT FOUND IN THE PHILIPPINE BILL OF RIGHTS.  IT WAS,
HOWEVER, BORROWED FROM THE EIGHTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND HAD THE SAME MEANING; 217 U.S.,AT 367. 

/22/  ID., AT 373. 

/23/  IBID. 

/24/  IBID. 

/25/  ID., AT 381. 

/26/  ID., AT 389-413.  MR. JUSTICE BLACK EXPRESSED A SIMILAR POINT
OF VIEW IN HIS SEPARATE OPINION IN MCGAUTHA V. CALIFORNIA, 403 U.S.,AT
226 (1971). 

/27/  BADDERS WAS FOUND GUILTY ON SEVEN COUNTS OF USING THE MAILS AS
PART OF A SCHEME TO DEFRAUD.  HE WAS SENTENCED TO CONCURRENT FIVE-YEAR
SENTENCES AND TO A $1,000 FINE ON EACH COUNT.  THE COURT SUMMARILY
REJECTED HIS CLAIM THAT THE SENTENCE WAS A CRUEL AND UNUSUAL
PUNISHMENT.  IN UNITED STATES EX REL. MILWAUKEE SOCIAL DEMOCRATIC
PUBLISHING CO. V. BURLESON, 255 U.S. 407 (1921), THE COURT UPHELD THE
DENIAL OF SECOND-CLASS MAILING PRIVILEGES TO A NEWSPAPER THAT HAD
ALLEGEDLY PRINTED ARTICLES CONVEYING FALSE REPORTS OF UNITED STATES
CONDUCT DURING THE FIRST WORLD WAR WITH INTENT TO CAUSE DISLOYALTY. 
MR. JUSTICE BRANDEIS DISSENTED AND INDICATED HIS BELIEF THAT THE
"PUNISHMENT" WAS UNUSUAL AND POSSIBLY EXCESSIVE UNDER WEEMS V. UNITED
STATES, 217 U.S. 349 (1910).  THERE IS NOTHING IN EITHER OF THESE CASES
DEMONSTRATING A DEPARTURE FROM THE APPROACH USED IN WEEMS, OR ADDING
ANYTHING TO IT. 

/28/  MR. JUSTICE FRANKFURTER WAS THE ONLY MEMBER OF THE COURT
UNWILLING TO MAKE THIS ASSUMPTION.  HOWEVER, LIKE CHIEF JUSTICE FULLER
IN IN RE KEMMLER, 136 U.S. 436 (1890), HE EXAMINED THE PROPRIETY OF THE
PUNISHMENT UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
329 U.S.,AT 471.  AS MR. JUSTICE POWELL MAKES CLEAR, MR. JUSTICE
FRANKFURTER'S ANALYSIS WAS DIFFERENT ONLY IN FORM FROM THAT OF HIS
BRETHREN; IN SUBSTANCE, HIS TEST WAS FUNDAMENTALLY IDENTICAL TO THAT
USED BY THE REST OF THE COURT. 

/29/  ID., AT 463. 

/30/  ENGLISH LAW REQUIRED A SECOND ATTEMPT AT EXECUTION IF THE
FIRST ATTEMPT FAILED.  L. RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL
LAW 185-186 (1948). 

/31/  MR. JUSTICE BRENNAN CONCURRED AND CONCLUDED THAT THE STATUTE
AUTHORIZING DEPRIVATIONS OF CITIZENSHIP EXCEEDED CONGRESS' LEGISLATIVE
POWERS.  356 U.S.,AT 114. 

/32/  ID., AT 101. 

/33/  370 U.S.,AT 666. 

/34/  ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962), REMOVES ANY
LINGERING DOUBTS AS TO WHETHER THE EIGHTH AMENDMENT'S PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENTS IS BINDING ON THE STATES.  SEE
ALSO POWELL V. TEXAS, 392 U.S. 514 (1968). 

/35/  TROP V. DULLES, 356 U.S. 86, 101 (1958).  SEE ALSO WEEMS V.
UNITED STATES, 217 U.S.,AT 373; ROBINSON V. CALIFORNIA, 370 U.S.AT
666.  SEE ALSO N. 19, SUPRA. 

/36/  E.G., MCGAUTHA V. CALIFORNIA, 402 U.S.,AT 226 (SEPARATE
OPINION OF BLACK, J.); TROP V. DULLES, SUPRA, AT 99 (WARREN, C. J.),
125 (FRANKFURTER, J., DISSENTING). 

/37/  SEE, E.G., LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S.,AT
474 (BURTON, J., DISSENTING); TROP V. DULLES, SUPRA, AT 90 (WARREN C.
J.); RUDOLPH V. ALABAMA, 375 U.S. 889 (1963) (GOLDBERG, J., DISSENTING
FROM DENIAL OF CERTIORARI); F. FRANKFURTER, OF LAW AND MEN 81 (1956). 

THERE IS NO VIOLATION OF THE PRINCIPLE OF STARE DECISIS IN A
DECISION THAT CAPITAL PUNISHMENT NOW VIOLATES THE EIGHTH AMENDMENT. 
THE LAST CASE THAT IMPLIED THAT CAPITAL PUNISHMENT WAS STILL
PERMISSIBLE WAS TROP V. DULLES, SUPRA, AT 99.  NOT ONLY WAS THE
IMPLICATION PURELY DICTUM, BUT IT WAS ALSO MADE IN THE CONTEXT OF A
FLEXIBLE ANALYSIS THAT RECOGNIZED THAT AS PUBLIC OPINION CHANGED, THE
VALIDITY OF THE PENALTY WOULD HAVE TO BE RE-EXAMINED.  TROP V. DULLES
IS NEARLY 15 YEARS OLD NOW, AND 15 YEARS CHANGE MANY MINDS ABOUT MANY
THINGS.  MR. JUSTICE POWELL SUGGESTS, HOWEVER, THAT OUR RECENT DECISION
IN WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968), AND MCGAUTHA V.
CALIFORNIA, 402 U.S. 183 (1971), IMPLY THAT CAPITAL PUNISHMENT IS
CONSTITUTIONALLY PERMISSIBLE, BECAUSE IF THEY ARE VIEWED ANY OTHER WAY
THEY AMOUNT TO LITTLE MORE THAN AN ACADEMIC EXERCISE.  IN MY VIEW, THIS
DISTORTS THE "RULE OF FOUR" BY WHICH THIS COURT DECIDES WHICH CASES AND
WHICH ISSUES IT WILL CONSIDER, AND IN WHAT ORDER.  SEE UNITED STATES V.
GENERES, 405 U.S. 93, 113 (1972) (DOUGLAS, J., DISSENTING).  THERE ARE
MANY REASONS WHY FOUR MEMBERS OF THE COURT MIGHT HAVE WANTED TO
CONSIDER THE ISSUES PRESENTED IN THOSE CASES BEFORE CONSIDERING THE
DIFFICULT QUESTION THAT IS NOW BEFORE US.  WHILE I DO NOT INTEND TO
CATALOGUE THESE REASONS HERE, IT SHOULD SUFFICE TO NOTE THAT I DO NOT
BELIEVE THAT THOSE DECISIONS CAN, IN ANY WAY, FAIRLY BE USED TO SUPPORT
ANY INFERENCE WHATEVER THAT THE INSTANT CASES HAVE ALREADY BEEN
DISPOSED OF SUB SILENTIO. 

/38/  ANCEL, THE PROBLEM OF THE DEATH PENALTY, IN CAPITAL PUNISHMENT
4-5 (T. SELLIN ED. 1967); G. SCOTT, THE HISTORY OF CAPITAL PUNISHMENT 1
(1950). 

/39/  SCOTT, SUPRA, N. 38, AT 1. 

/40/  ID., AT 2; ANCEL, SUPRA, N. 38, AT 4-5. 

/41/  THE CODE OF HAMMURABI IS ONE OF THE FIRST KNOWN LAWS TO HAVE
RECOGNIZED THE CONCEPT OF AN "EYE FOR AN EYE," AND CONSEQUENTLY TO HAVE
ACCEPTED DEATH AS AN APPROPRIATE PUNISHMENT FOR HOMICIDE.  E. BLOCK,
AND MAY GOD HAVE MERCY . . . 13-14 (1962). 

/42/  SCOTT, SUPRA, N. 38, AT 19-33. 

/43/  ID., AT 5.  PRIOR TO THIS TIME, THE LAWS OF ALFRED (871-901)
PROVIDED THAT ONE WHO WILLFULLY SLAYED ANOTHER SHOULD DIE, AT LEAST
UNDER CERTAIN CIRCUMSTANCES.  3 J.STEPHEN, HISTORY OF THE CRIMINAL LAW
OF ENGLAND 24 (1883).  BUT, PUNISHMENT WAS APPARENTLY LEFT LARGELY TO
PRIVATE ENFORCEMENT. 

/44/  T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 434-454 (5TH
ED. 1956). 

/45/  INTRODUCTION IN H. BEDAU, THE DEATH PENALTY IN AMERICA 1 (1967
REV. ED.). 

/46/  IBID. 

/47/  4 W.BLACKSTONE, COMMENTARIES *377.  HOW MANY PERSONS WERE
ACTUALLY EXECUTED FOR COMMITTING CAPITAL OFFENSES IS NOT KNOWN.  SEE
BEDAU, SUPRA, N. 45, AT 3; L. RADZINOWICZ, A HISTORY OF ENGLISH
CRIMINAL LAW 151, 153 (1948); SELLIN, TWO MYTHS IN THE HISTORY OF
CAPITAL PUNISHMENT, 50 J.CRIM.L.C. & P.S. 114 (1959).  "BENEFIT OF
CLERGY" MITIGATED THE HARSHNESS OF THE LAW SOMEWHAT.  THIS CONCEPT
AROSE FROM THE STRUGGLE BETWEEN CHURCH AND STATE AND ORIGINALLY
PROVIDED THAT MEMBERS OF THE CLERGY SHOULD BE TRIED IN ECCLESIASTICAL
COURTS.  EVENTUALLY ALL FIRST OFFENDERS WERE ENTITLED TO "BENEFIT OF
CLERGY."  BEDAU, SUPRA, AT 4. 

/48/  G. HASKINS, THE CAPITALL LAWES OF NEW-ENGLAND, HARV. L. SCH. 
BULL.  10-11 (FEB. 1956). 

/49/  COMPARE HASKINS, SUPRA, N. 48, WITH E. POWERS, CRIME AND
PUNISHMENT IN EARLY MASSACHUSETTS, 1620-1692 (1966).  SEE ALSO BEDAU,
SUPRA, N. 45, AT 5.     /50/  ID., AT 6. 

/51/  FILLER, MOVEMENTS TO ABOLISH THE DEATH PENALTY IN THE UNITED
STATES, 284 ANNALS AM.ACAD.POL.& SOC.SCI.  124 (1952). 

/52/  IBID. 

/53/  IBID. (FOOTNOTES OMITTED). 

/54/  IBID.; BEDAU, SUPRA, N. 45, AT 6. 

/55/  FOR AN UNKNOWN REASON, PENNSYLVANIA ADOPTED THE HARSHER PENAL
CODE OF ENGLAND UPON WILLIAM PENN'S DEATH IN 1718.  THERE WAS NO
EVIDENCE, HOWEVER OF AN INCREASE IN CRIME BETWEEN 1682 AND 1718. 
FILLER, SUPRA, N. 51, AT 124.  IN 1794, PENNSYLVANIA ELIMINATED CAPITAL
PUNISHMENT EXCEPT FOR "MURDER OF THE FIRST DEGREE," WHICH INCLUDED ALL
"WILLFUL, DELIBERATE OR PREMEDITATED" KILLINGS.  THE DEATH PENALTY WAS
MANDATORY FOR THIS CRIME.  PA. STAT. 1794, C. 1777.  VIRGINIA FOLLOWED
PENNSYLVANIA'S LEAD AND ENACTED SIMILAR LEGISLATION.  OTHER STATES
FOLLOWED SUIT. 

/56/  FILLER, SUPRA, N. 51, AT 124. 

/57/  ID., AT 124-125 

/58/  REPRINTED IN 12 AM.J.LEGAL HIST. 122 (1968). 

/59/  HIS ADVICE WAS IN LARGER MEASURE FOLLOWED.  SEE N. 55, SUPRA. 

/60/  ONE SCHOLAR HAS NOTED THAT THE EARLY ABOLITION MOVEMENT IN THE
UNITED STATES LACKED THE LEADERSHIP OF MAJOR PUBLIC FIGURES.  BEDAU,
SUPRA, N. 45, AT 8. 

/61/  IBID.; FILLER, SUPRA, N. 51, AT 126-127. 

/62/  SEE SCOTT, SUPRA, N. 38, AT 114-116. 

/63/  FILLER, SUPRA, N. 51, AT 127. 

/64/  DAVIS, THE MOVEMENT TO ABOLISH CAPITAL PUNISHMENT IN AMERICA,
1787-1861, 63 AM.HIST.REV.  23, 33 (1957). 

/65/  FILLER, SUPRA, N. 51, AT 128.  CAPITAL PUNISHMENT WAS
ABOLISHED FOR ALL CRIMES BUT TREASON.  THE LAW WAS ENACTED IN 1846, BUT
DID NOT GO INTO EFFECT UNTIL 1874. 

/66/  DAVIS, SUPRA, N. 64, AT 29-30. 

/67/  FILLER, SUPRA, N. 51, AT 129. 

/68/ ID., AT 130. 

/69/  IBID. 

/70/  BEDAU, SUPRA, N. 45, AT 10. 

/71/  DAVIS, SUPRA, N. 64, AT 46. 

/72/  KANSAS RESTORED IT IN 1935.  SEE APPENDIX I TO THIS OPINION,
INFRA, AT 372. 

/73/  SEE MCGAUTHA V. CALIFORNIA, 402 U.S.,AT 199. 

/74/  FILLER, SUPRA, N. 51, AT 133.  SEE ALSO WINSTON V. UNITED
STATES, 172 U.S. 303 (1899).  MORE THAN 90% OF THE EXECUTIONS SINCE
1930 IN THIS COUNTRY HAVE BEEN FOR OFFENSES WITH A DISCRETIONARY DEATH
PENALTY.  BEDAU, THE COURTS, THE CONSTITUTION, AND CAPITAL PUNISHMENT,
1968 UTAH L.REV.  201, 204. 

/75/  SEE N. 72, SUPRA. 

/76/  FILLER, SUPRA, N. 51, AT 134. 

/77/  SELLIN, EXECUTIONS IN THE UNITED STATES, IN CAPITAL PUNISHMENT
35 (T. SELLIN ED. 1967); UNITED NATIONS, DEPARTMENT OF ECONOMIC AND
SOCIAL AFFAIRS, CAPITAL PUNISHMENT, PT. II, PARAS. 82-85, PP. 101-102
(1968). 

/78/  NEW YORK AUTHORIZES THE DEATH PENALTY ONLY FOR MURDER OF A
POLICE OFFICER OR FOR MURDER BY A LIFE TERM PRISONER, N.Y. PENAL CODE
SEC. 125.30 (1967). 

/79/  SEE GENERALLY BEDAU, SUPRA, N. 74.  NINE STATES DO NOT
AUTHORIZE CAPITAL PUNISHMENT UNDER ANY CIRCUMSTANCES:  ALASKA, HAWAII,
IOWA, MAINE, MICHIGAN, MINNESOTA, OREGON, WEST VIRGINIA, AND
WISCONSIN.  PUERTO RICO AND THE VIRGIN ISLANDS ALSO HAVE NO PROVISION
FOR CAPITAL PUNISHMENT.  BEDAU, SUPRA, N. 45, AT 39.  THOSE STATES THAT
SEVERLY RESTRICT THE IMPOSITION OF THE DEATH PENALTY ARE:  NEW MEXICO,
N.M. STAT. ANN. SEC. 40A-29-2.1 (1972); NEW YORK, N.Y. PENAL CODE SEC.
125.30 (1967); NORTH DAKOTA, N.D. CENT. CODE SECS. 12-07-01, 12-27-13
(1960); RHODE ISLAND, R.I. GEN. LAWS SEC. 11-23-2 (1970); VERMONT, VT.
STAT. ANN., TIT. 13, SEC. 2303 (SUPP. 1971).  CALIFORNIA IS THE ONLY
STATE IN WHICH THE JUDICIARY HAS DECLARED CAPITAL PUNISHMENT TO BE
INVALID.  SEE N. 1, SUPRA. 

/80/  SEE GENERALLY HEARINGS ON S. 1760 BEFORE THE SUBCOMMITTEE ON
CRIMINAL LAWS AND PROCEDURES OF THE SENATE COMMITTEE ON THE JUDICIARY,
90TH CONG., 2D SESS. (1968). 

/81/  EXTENSIVE COMPILATIONS OF THE CAPITAL CRIMES IN PARTICULAR
STATES CAN BE FOUND IN BEDAU, SUPRA, N. 45, AT 39-52 AND IN THE BRIEF
FOR THE PETITIONER IN NO. 68-5027, APP. G. (AIKENS V. CALIFORNIA, 406
U.S. 813 (1972)).  AN ATTEMPT IS MADE TO BREAK DOWN CAPITAL OFFENSES
INTO CATEGORIES IN FINKEL, A SURVEY OF CAPITAL OFFENSES, IN CAPITAL
PUNISHMENT 22 (T. SELLIN ED. 1967). 

/82/  BEDAU, SUPRA, N. 45, AT 43. 

/83/  IBID.  SEE ALSO RALPH V. WARDEN, 438 F.2D 786, 791-792 (CA4
1970). 

/84/  SEE HART, MURDER AND THE PRINCIPLES OF PUNISHMENT:  ENGLAND
AND THE UNITED STATES, 51 NW.U.L.REV.  433, 448 (1957); REPORT OF ROYAL
COMMISSION ON CAPITAL PUNISHMENT, 1949-1953, CMD.  8932, PARAS. 52-53,
PP. 17-18 (1953).  SEE GENERALLY, REICHERT, CAPITAL PUNISHMENT
RECONSIDERED, 47 KY.L.J. 397, 399 (1959). 

/85/  SEE, E.G., C. BECCARIA, ON CRIMES AND PUNISHMENT (TR. BY H.
PAOLUCCI 1963); 1 ARCHBOLD, ON THE PRACTICE PLEADING, AND EVIDENCE IN
CRIMINAL CASES SECS. 11-17, PP. XV-XIX (T. WATERMAN 7TH ED. 1860). 

/86/  SEE, E.G. RUDOLPH V. ALABAMA, 375 U.S. 889 (1963) (GOLDBERG,
J., DISSENTING FROM DENIAL OF CERTIORARI); TROP V. DULLES, 356 U.S.,AT
97 (WARREN, C.J.), 113 (BRENNAN, J., CONCURRING); MORISSETTE V. UNITED
STATES, 342 U.S. 246 (1952); WILLIAMS V. NEW YORK, 337 U.S. 241
(1949).  IN POWELL V. TEXAS, 392 U.S.,AT 530, WE SAID:  "THIS COURT HAS
NEVER HELD THAT ANYTHING IN THE CONSTITUTION REQUIRES THAT PENAL
SANCTIONS BE DESIGNED SOLELY TO ACHIEVE THERAPEUTIC OR REHABILITATIVE
EFFECTS . . . ."  THIS IS, OF COURSE, CORRECT, SINCE DETERRENCE AND
ISOLATION ARE CLEARLY RECOGNIZED AS PROPER.  E.G., TROP V. DULLES,
SUPRA, AT 111 (BRENNAN, J., CONCURRING).  THERE IS ABSOLUTELY NOTHING
IN THE LANGUAGE, THE RATIONALE, OR THE HOLDING OF POWELL V. TEXAS THAT
IMPLIES THAT RETRIBUTION FOR ITS OWN SAKE IS A PROPER LEGISLATIVE AIM
IN PUNISHING. 

/87/  SEE, E.G., VELLENGA, CHRISTIANITY AND THE DEATH PENALTY, IN
BEDAU, SUPRA, N. 45, AT 123-130; HOOK, THE DEATH SENTENCE, IN BEDAU,
SUPRA, AT 146-154.  SEE ALSO EHRENZWEIG, A PSYCHONANLYSIS OF THE
INSANITY PLEA-- CLUES TO THE PROBLEMS OF CRIMINAL RESPONSIBILITY AND
INSANITY IN THE DEATH CELL, 73 YALE L.J. 425, 433-439 (1964). 

/88/  2 J.STORY, ON THE CONSTITUTION 1903, P. 650 (5TH ED. 1891). 

/89/  NOTE, THE DEATH PENALTY CASES, 56 CALIF.L.REV.  1268, 1275
(1968); NOTE, JUSTICE OR REVENGE?, 60 DICK.L.REV.  342, 343 (1956);
ROYAL COMMISSION, SUPRA, N. 84, PARA. 55, AT 18. 

/90/  BARZUN, IN FAVOR OF CAPITAL PUNISHMENT, IN BEDAU, SUPRA, N.
45, AT 154, 163; HOOK, SUPRA, N. 87, AT 152. 

/91/  SEE COMMONWEALTH V. ELLIOTT, 371 PA. 70, 78, 89 A.2D 782, 786
(1952) (MUSMANNO, J., DISSENTING); F. FRANKFURTER, OF LAW AND MEN 101
(1956).  THE ASSERTION THAT LIFE IMPRISONMENT MAY SOMEHOW BE MORE CRUEL
THAN DEATH IS USUALLY REJECTED AS FRIVOLOUS.  HENCE, I CONFESS TO
SURPRISE AT FINDING THE ASSERTION BEING MADE IN VARIOUS WAYS IN TODAY'S
OPINIONS.  IF THERE WERE ANY MERIT TO THE CONTENTION, IT WOULD DO MUCH
TO UNDERCUT EVEN THE RETRIBUTIVE MOTIVE FOR IMPOSING CAPITAL
PUNISHMENT.  IN ANY EVENT, THERE IS NO BETTER RESPONSE TO SUCH AN
ASSERTION THAN THAT OF FORMER PENNSYLVANIA SUPREME COURT JUSTICE
MUSMANNO IN HIS DISSENT IN COMMONWEALTH V. ELLIOTT, SUPRA, AT 79-80, 89
A.2D, AT 787: 

"ONE OF THE JUDGES OF THE LOWER COURT INDICATED FROM THE BENCH THAT
A SENTENCE OF LIFE IMPRISONMENT IS NOT TO BE REGARDED AS A LESSER
PENALTY THAN THAT OF DEATH.  I CHALLENGE THAT STATEMENT CATEGORICALLY. 
IT CAN BE STATED AS A UNIVERSAL TRUTH STRETCHING FROM NADIR TO ZENITH
THAT REGARDLESS OF CIRCUMSTANCES, NO ONE WANTS TO DIE.  SOME PERSON
MAY, IN AN INSTANT OF SPIRITUAL OR PHYSICAL AGONY EXPRESS A DESIRE FOR
DEATH AS AN ANODYNE FROM INTOLERABLE PAIN, BUT THAT DESIRE IS NEVER
FULL-HEARTED BECAUSE THERE IS ALWAYS THE RESERVE OF REALIZATION THAT
THE SILKEN CORD OF LIFE IS NOT BROKEN BY A MERE WISHING.  THERE IS NO
PERSON IN THE ACTUAL EXTREMITY OF DROPPING FROM THE PRECIPICE OF LIFE
WHO DOES NOT DESPARATELY REACH FOR A CRAG OF TIME TO WHICH TO CLING
EVEN FOR A MOMENT AGAINST THE AWFUL ETERNITY OF SILENCE BELOW.  WITH
ALL ITS 'SLINGS AND ARROWS OF OUTRAGEOUS FORTUNE,' LIFE IS YET SWEET
AND DEATH IS ALWAYS CRUEL." 

ATTENTION SHOULD ALSO BE GIVEN TO THE HYPOTHESIS OF SIR JAMES
STEPHEN, QUOTED IN THE TEXT, INFRA, AT 347-348. 

/92/  SEE BEDAU, DETERRENCE AND THE DEATH PENALTY:  A
RECONSIDERATION, 61 J.CRIM.L.C.& P.S. 539, 542 (1970). 

/93/  ROYAL COMMISSION, SUPRA, N. 84, PARA. 59, AT 20. 

/94/  UNITED NATIONS, SUPRA, N. 77, PARA. 134, AT 117.  THE GREAT
ADVANTAGE THAT THIS COUNTRY HAS IS THAT IT CAN COMPARE ABOLITIONIST AND
RETENTIONIST STATES WITH GEOGRAPHIC, ECONOMIC, AND CULTURAL
SIMILARITIES. 

/95/  REPRINTED IN ROYAL COMMISSION, SUPRA, N. 84, PARA. 57, AT 19. 

/96/  UNITED NATIONS, SUPRA, N. 77, PARA. 139, AT 118. 

/97/  SEE BEDAU, SUPRA, N. 45, AT 43. 

/98/  T. SELLIN, THE DEATH PENALTY, A REPORTER FOR THE MODEL PENAL
CODE PROJECT OF THE AMERICAN LAW INSTITUTE (ALI) 5 (1959); MORRIS,
THOUGHTS ON CAPITAL PUNISHMENT, 35 WASH.L.REV.& ST.BAR J. 335, 340
(1960). 

/99/  SELLIN, SUPRA, N. 98, AT 21. 

/100/  SUCH CRIMES MIGHT INCLUDE LESSER FORMS OF HOMICIDE OR
HOMICIDE BY A CHILD OR A LUNATIC.  ID., AT 22; THE LAWS, THE CRIMES,
AND THE EXECUTIONS, IN BEDAU, SUPRA, N. 45, AT 32, 61. 

/101/  SUTHERLAND, MURDER AND THE DEATH PENALTY, 15 J.CRIM.L. &
CRIM. 522 (1925); ALI, SUPRA, N. 98, AT 22; BEDAU, SUPRA, N. 45, AT
73. 

/102/  EXECUTIONS WERE CHOSEN FOR PURPOSES OF COMPARISON BECAUSE
WHATEVER IMPACT CAPITAL PUNISHMENT HAD WOULD SURELY BE MOST FORCEFULLY
FELT WHERE PUNISHMENT WAS ACTUALLY IMPOSED. 

/103/  SEE APPENDIX II TO THIS OPINION, INFRA, AT 373. 

/104/  SEE APPENDIX III TO THIS OPINION, INFRA, AT 374. 

/105/  UNITED NATIONS, SUPRA, N. 77, PARA. 134, AT 117. 

/106/  ROYAL COMMISSION, SUPRA, N. 84, AT 349-351.  ACCORD, VOLD,
EXTEND AND TREND OF CAPITAL CRIMES IN UNITED STATES, 284 ANNALS
AM.ACAD.POL.& SOC.SCI.  1, 4 (1952). 

/107/  SELLIN, SUPRA, N. 98, AT 34. 

/108/  SEE, E.G., GUILLOT, ABOLITION AND RESTORATION OF THE DEATH
PENALTY IN MISSOURI, IN BEDAU, SUPRA, N. 45, AT 351, 358-359; COBIN,
ABOLITION AND RESTORATION OF THE DEATH PENALTY IN DELAWARE, IN BEDAU,
SUPRA, AT 359, 371-372. 

/109/  SELLIN, SUPRA, N. 98, AT 38-39; ROYAL COMMISSION, SUPRA, N.
84, AT 353; UNITED NATIONS, SUPRA, N. 77, PARAS. 130-136, AT 116-118. 

/110/  ONE PROBLEM IS THAT THE STATISTICS FOR THE 19TH CENTURY ARE
ESPECIALLY SUSPECT; ANOTHER IS THAT DE JURE ABOLITION MAY HAVE BEEN
PRECEEDED BY DE FACTO ABOLITION WHICH WOULD HAVE DISTORTED THE
FIGURES.  IT SHOULD ALSO BE NOTED THAT THE FIGURES FOR SEVERAL STATES
REFLECT HOMICIDE CONVICTIONS RATHER THAN HOMICIDE RATES. 

/111/  ROYAL COMMISSION, SUPRA, N. 84, PARA. 65, AT 23; 346-349;
UNITED NATIONS, SUPRA, N. 77, PARA. 132, AT 117. 

/112/  HAYNER & CRANOR, THE DEATH PENALTY IN WASHINGTON STATE, 284
ANNALS AM.ACAD.POL.& SOC.SCI.  101 (1952); GRAVES, A. DOCTOR LOOKS AT
CAPITAL PUNISHMENT, 10 MED.ARTS & SCI 137 (1956); DANN, THE DETERRENT
EFFECT OF CAPITAL PUNISHMENT, BULL.  29, FRIENDS SOCIAL SERVICE SERIES,
COMMITTEE ON PHILANTHROPIC LABOR AND PHILADELPHIA YEARLY MEETING OF
FRIENDS (1935); SAVITZ, A STUDY IN CAPITAL PUNISHMENT, 49 J.CRIM.L.C.&
P.S. 338 (1958); UNITED NATIONS, SUPRA, N. 77, PARA 135, AT 118. 

/113/  GRAVES, SUPRA, N. 113; HEARINGS, SUPRA, N. 80, AT 23
(TESTIMONY OF C. DUFFY), 126 (STATEMENT OF DR. WEST); T. REIK, THE
COMPULSION TO CONFESS 474 (1959); MCCAFFERTY, MAJOR TRENDS IN THE USE
OF CAPITAL PUNISHMENT, 25 FED.PROB.,NO. 3, P. 15 (SEPT. 1961).  CAPITAL
PUNISHMENT MAY PROVIDE AN OUTLET FOR SUICIDAL IMPULSES OR A MEANS OF
ACHIEVING NOTORIETY, FOR EXAMPLE. 

/114/  SEE, E.G., GERSTEIN, A PROSECUTOR LOOKS AT CAPITAL
PUNISHMENT, 51 J.CRIM.L.C.& P.S. 252 (1960); HOOVER, STATEMENTS IN
FAVOR OF THE DEATH PENALTY, IN BEDAU, SUPRA, N. 45, AT 130; YOUNGER,
CAPITAL PUNISHMENT:  A SHARP MEDICINE RECONSIDERED, 42 A.B.A.J. 113
(1956).  BUT SEE, SYMPOSIUM ON CAPITAL PUNISHMENT, DISTRICT ATTORNEYS'
ASSN. OF STATE OF NEW YORK, JAN. 27, 1961, 7 N.Y.L.F. 249, 267 (1961)
(STATEMENT OF A. HERMAN, HEAD OF THE HOMICIDE BUREAU OF THE NEW YORK
CITY DISTRICT ATTORNEY'S OFFICE). 

/115/  SELLIN, SUPRA, N. 98, AT 56-58; KOENINGER, CAPITAL PUNISHMENT
IN TEXAS, 1924-1968, 15 CRIME & DELIN, 132 (1969); SELLIN, DOES THE
DEATH PENALTY PROTECT MUNICIPAL POLICE, IN BEDAU, SUPRA, N. 45, AT 284;
UNITED NATIONS, SUPRA, N. 77, PARA. 136, AT 118. 

/116/  L. LAWES, LIFE AND DEATH IN SING SING 150 (1928); MCGEE,
CAPITAL PUNISHMENT AS SEEN BY A CORRECTIONAL ADMINISTRATOR, 28
FED.PROB.,NO. 2, P. 11 (JUNE 1964); 1950 SURVEY OF THE INTERNATIONAL
PENAL AND PENITENTIARY COMMISSION, CITED IN SELLIN, SUPRA, N. 98, AT 70
72; SELLIN, PRISONS HOMICIDES, IN CAPITAL PUNISHMENT 154 (T. SELLIN ED.
1967); CF. AKMAN, HOMICIDES AND ASSAULTS IN CANADIAN PRISONS, IN
CAPITAL PUNISHMENT, SUPRA, AT 161-168.  THE ARGUMENT CAN BE MADE THAT
THE REASON FOR THE GOOD RECORD OF MURDERERS IS THAT THOSE WHO ARE
LIKELY TO BE RECIDIVISTS ARE EXECUTED.  THERE IS, HOWEVER, NO EVIDENCE
TO SHOW THAT IN CHOOSING BETWEEN LIFE AND DEATH SENTENCES JURIES SELECT
THE LESSER PENALTIES FOR THOSE PERSONS THEY BELIEVE ARE UNLIKELY TO
COMMIT FUTURE CRIMES. 

/117/  E.G., UNITED NATIONS, SUPRA, N. 77, PARA. 144, AT 119; E.
ESHELMAN & F. RILEY, DEATH ROW CHAPLAIN 224 (1962).  THIS IS SUPPORTED
ALSO BY OVERWHELMING STATISTICS SHOWING AN EXTREMELY LOW RATE OF
RECIDIVISM FOR CONVICTED MURDERERS WHO ARE RELEASED FROM PRISON.  ROYAL
COMMISSION, SUPRA, N. 84, APP. 15, AT 486-491; SELLIN, SUPRA, N. 98, AT
72-79; UNITED NATIONS, SUPRA, N. 77, PARA. 144, AT 119. 

/118/  SEE, E.G., THE QUESTION OF DETERRENCE, IN BEDAU, SUPRA, N.
45, AT 267. 

/119/  IBID. AND N. 11; NOTE, THE DEATH PENALTY CASES, 56
CALIF.L.REV.  1268, 1282-1283 (1968).     /120/  SEE N. 113, SUPRA. 

/121/  UNITED NATIONS, SUPRA, N. 77, PARA. 159, AT 123. 

/122/  SEE NN. 58 AND 59, SUPRA, AND ACCOMPANYING TEXT. 

/123/  SEE N. 62, SUPRA, AND ACCOMPANYING TEXT. 

/124/  GRAVES, A DOCTOR LOOKS AT CAPITAL PUNISHMENT, 10 MED.ARTS.&
SCI.  137 (1956); ROYAL COMMISSION, SUPRA, N. 84, PARA. 60, AT 20-21;
SCHUESSLER, THE DETERRENT INFLUENCE OF THE DEATH PENALTY, 284 ANNALS
AM.ACAD.POL.& SOC.SCI.  54 (1952); UNITED NATIONS, SUPRA, N. 77, PARA.
142, AT 119; M. WOLFGANG, PATTERNS IN CRIMINAL HOMICIDE (1958).     ONE
WOULD ASSUME THAT IF DETERRENCE WERE ENHANCED BY CAPITAL PUNISHMENT,
THE INCREASED DETERRENCE WOULD BE MOST EFFECTIVE WITH RESPECT TO THE
PREMEDITATING MURDERER OR THE HIRED KILLER WHO PLOTS HIS CRIME BEFORE
COMMITTING IT.  BUT, SUCH PEOPLE RARELY EXPECT TO BE CAUGHT AND USUALLY
ASSUME THAT IF THEY ARE CAUGHT THEY WILL EITHER BE ACQUITTED OR
SENTENCED TO PRISON.  THIS IS A FAIRLY DEPENDABLE ASSUMPTION SINCE A
RELIABLE ESTIMATE IS THAT ONE PERSON IS EXECUTED FOR EVERY 100 CAPITAL
MURDERS KNOWN TO THE POLICE.  HART, MURDER AND THE PRINCIPLES OF
PUNISHMENT:  ENGLAND AND THE UNITED STATES, 52 NW.U.L.REV.  433, 444
445 (1957).  FOR CAPITAL PUNISHMENT TO DETER ANYBODY IT MUST BE A
CERTAIN RESULT OF A CRIMINAL ACT, CF. EX PARTE MEDLEY, 134 U.S. 160
(1890), AND IT IS NOT.  IT MUST ALSO FOLLOW SWIFTLY UPON COMPLETION OF
THE OFFENSE AND IT CANNOT IN OUR COMPLICATED DUE PROCESS SYSTEM OF
JUSTICE.  SEE, E.G., THE QUESTION OF DETERRENCE, IN BEDAU, SUPRA, N.
45, AT 258, 271-272; DISALLE, TRENDS IN THE ABOLITION OF CAPITAL
PUNISHMENT, 1969 U.TOLEDO L.REV.  1, 4.  IT IS IRONIC THAT THOSE
PERSONS WHOM WE WOULD LIKE TO DETER THE MOST HAVE THE LEAST TO FEAR
FROM THE DEATH PENALTY AND RECOGNIZE THAT FACT.  SELLIN, ADDRESS FOR
CANADIAN SOCIETY FOR ABOLITION OF THE DEATH PENALTY, FEB. 7, 1965, IN 8
CRIM.L.Q. 36, 48 (1966); PROCEEDINGS OF THE SECTION OF CRIMINAL LAW OF
THE ABA, AUG. 24, 1959, P. 7 (M. DISALLE). 

/125/  IN REACHING THIS CONCLUSION, I MAINTAIN AGREEMENT WITH THAT
PORTION OF STEPHEN'S HYPOTHESIS THAT SUGGESTS THAT CONVICTED CRIMINALS
FEAR DEATH MORE THAN THEY FEAR LIFE IMPRISONMENT.  AS I STATED EARLIER,
THE DEATH PENALTY IS A MORE SEVERE SANCTION.  THE ERROR IN THE
HYPOTHESIS LIES IN ITS ASSUMPTION THAT BECAUSE MEN FEAR DEATH MORE THAN
IMPRISONMENT AFTER THEY ARE CONVICTED, THEY NECESSARILY MUST WEIGH
POTENTIAL PENALTIES PRIOR TO COMMITTING CRIMINAL ACTS AND THAT THEY
WILL CONFORM THEIR BEHAVIOR SO AS TO INSURE THAT, IF CAUGHT, THEY WILL
RECEIVE THE LESSER PENALTY.  IT IS EXTREMELY UNLIKELY THAT MUCH THOUGHT
IS GIVEN TO PENALTIES BEFORE THE ACT IS COMMITTED, AND EVEN IF IT WERE,
THE PRECEDING FOOTNOTE EXPLAINS WHY SUCH THOUGHT WOULD NOT LEAD TO
DETERRENCE. 

/126/  SEE N. 117, SUPRA. 

/127/  SEE, E.G. ROYAL COMMISSION, SUPRA, N. 84, APP. 15, AT 486
491. 

/128/  JACKSON APPLIES TO THE STATES UNDER THE CRITERIA ARTICULATED
IN DUNCAN V. LOUISIANA, 391 U.S. 145, 149 (1968). 

/129/  SEE, E.G., BARZUN, IN FAVOR OF CAPITAL PUNISHMENT, IN BEDAU,
SUPRA, N. 45, AT 154. 

/130/  SEE, E.G., DEATH AS A PUNISHMENT, IN BEDAU, SUPRA, AT 214,
226-228; CALDWELL, WHY IS THE DEATH PENALTY RETAINED?, 284 ANNALS
AM.ACAD.POL.& SOC.SCI.  45, 50 (1952); JOHNSON, SELECTIVE FACTORS IN
CAPITAL PUNISHMENT, 36 SOCIAL FORCES 165, 169 (1957); SELLIN, CAPITAL
PUNISHMENT, 25 FED.PROB.,NO. 3, P. 3 (SEPT. 1961).  WE SHOULD NOT BE
SURPRISED AT THE LACK OF MERIT IN THE EUGENIC ARGUMENTS.  THERE SIMPLY
IS NO EVIDENCE THAT MENTALLY ILL PERSONS WHO COMMIT CAPITAL OFFENSES
CONSTITUTE A PHYSHIATRIC ENTITY DISTINCT FROM OTHER MENTALLY DISORDERED
PATIENTS OR THAT THEY DO NOT RESPOND AS READILY TO TREATMENT.  CRUVANT
& WALDROP, THE MURDERER IN THE MENTAL INSTITUTION, 284 ANNALS
AM.ACAD.POL.& SOC.SCI.  35, 43 (1952). 

/131/  CALDWELL, SUPRA, N. 130, AT 48; MCGEE, SUPRA, N. 116. 

/132/  MCGEE, SUPRA, AT 13-14; BAILEY, REHABILITATION ON DEATH ROW,
IN BEDAU, SUPRA, N. 45, AT 556. 

/133/  T. THOMAS, THIS LIFE WE TAKE 20 (3D ED. 1965). 

/134/  STEIN V. NEW YORK, 346 U.S. 156, 196 (1953) (JACKSON, J.);
CF. REID V. COVERT, 354 U.S. 1, 77 (1956) (HARLAN, J., CONCURRING IN
RESULT). 

/135/  SEE, E.G., WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968). 

/136/  SLOVENKO, AND THE PENALTY IS (SOMETIMES) DEATH, 24 ANTIOCH
REVIEW 351 (1964). 

/137/  SEE, E.G., CARITATIVO V. CALIFORNIA, 357 U.S. 549 (1958). 

/138/  TO OTHERS, AS WELL AS TO THE AUTHOR OF THIS OPINION, THIS
PRACTICE HAS SEEMED A STRANGE WAY TO SPEND MONEY.  SEE, E.G., T.
ARNOLD, THE SYMBOLS OF GOVERNMENT 10-13 (1935). 

/139/  SLOVENKO, SUPRA, N. 136, AT 363. 

/140/  B. ESHELMAN & F. RILEY, DEATH ROW CHAPLAIN 226 (1962);
CALDWELL, SUPRA, N. 130, AT 48; MCGEE, SUPRA, N. 116, AT 13; SELLIN,
SUPRA, N. 130, AT 3 (SEPT. 1961). 

/141/  THIS ANAYLSIS PARALLELS IN SOME WAYS THE ANALYSIS USED IN
STRIKING DOWN LEGISLATION ON THE GROUND THAT IT VIOLATES FOURTEENTH
AMENDMENT CONCEPTS OF SUBSTANTIVE DUE PROCESS.  SEE PACKER, MAKING THE
PUNISHMENT FIT THE CRIME, 77 HARV.L.REV.  1071, 1074 (1964).  THERE IS
ONE DIFFERENCE, HOWEVER.  CAPITAL PUNISHMENT IS UNCONSTITUTIONAL
BECAUSE IT IS EXCESSIVE AND UNNECESSARLY PUNISHMENT, NOT BECAUSE IT IS
IRRATIONAL. 

THE CONCEPTS OF CRUEL AND UNUSUAL PUNISHMENT AND SUBSTANTIVE DUE
PROCESS BECOME SO CLOSE AS TH MERGE WHEN THE SUBSTANTIVE DUE PROCESS
ARGUMENT IS STATED IN THE FOLLOWING MANNER:  BECAUSE CAPITAL PUNISHMENT
DEPRIVES AN INDIVIDUAL OF A FUNDAMENTAL RIGHT (I.E., THE RIGHT TO
LIFE), JOHNSON V. ZERBST, 304 U.S. 458, 462 (1938), THE STATE NEEDS A
COMPELLING INTEREST TO JUSTIFY IT.  SEE NOTE, THE DEATH PENALTY CASES,
56 CALIF.L.REV.  1268, 1324-1354 (1968).  THUS STATED, THE SUBSTANTIVE
DUE PROCESS ARGUMENT REITERATES WHAT IS ESENTIALLY THE PRIMARY PURPOSE
OF THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OF THE EIGHTH AMENDMENT--
I.E., PUNISHMENT MAY NOT BE MORE SEVERE THAN IS NECESSARY TO SERVE THE
LEGITIMATE INTERESTS OF THE STATE. 

THE CHIEF JUSTICE ASSERTS THAT IF WE HOLD THAT CAPITAL PUNISHMENT IS
UNCONSTITUTIONAL BECAUSE IT IS EXCESSIVE, WE WILL NEXT HAVE TO
DETERMINE WHETHER A 10-YEAR PRISON SENTENCE RATHER THAN A FIVE-YEAR
SENTENCE IS ALSO EXCESSIVE, OR WHETHER A $5 FINE WOULD NOT DO EQUALLY
WELL AS A $10 FINE.  HE MAY BE CORRECT THAT SUCH DETERMINATIONS WILL
HAVE TO BE MADE, BUT, AS IN THESE CASES, THOSE PERSONS CHALLENGING THE
PENALTY WILL BEAR A HEAVY BURDEN OF DEMONSTRATING THAT IT IS
EXCESSIVE.  THESE CASES ARISE AFTER 200 YEARS OF INQUIRY, 200 YEARS OF
PUBLIC DEBATE AND 200 YEARS OF MARSHALING EVIDENCE.  THE BURDEN PLACED
ON THOSE CHALLENGING CAPITAL PUNISHMENT COULD NOT HAVE BEEN GREATER.  I
AM CONVINCED THAT THEY HAVE MET THEIR BURDEN.  WHETHER A SIMILAR BURDEN
WILL PROVE TOO GREAT IN FUTURE CASES IS A QUESTION THAT WE CAN RESOLVE
IN TIME. 

/142/  UNITED STATES V. ROSENBERG, 195 F.2D 583, 608 (CA2) (FRANK,
J.), CERT. DENIED, 344 U.S. 838 (1952).  SEE ALSO KASPER V. BRITTAIN,
245 F.2D 92, 96 (CA6), CERT. DENIED, 355 U.S. 834 (1957) ("SHOCKING TO
THE SENSE OF JUSTICE"); PEOPLE V. MORRIS, 80 MICH. 634, 639, 45 N.W.
591, 592 (1890) ("SHOCK THE MORAL SENSE OF THE PEOPLE").  IN REPOUILLE
V. UNITED STATES, 165 F.2D 152 (CA2 1947), AND SCHMIDT V. UNITED
STATES, 177 F.2D 450, 451 (CA2 1949), JUDGE LEARNED HAND WROTE THAT THE
STANDARD OF "GOOD MORAL CHARACTER" IN THE NATIONALITY ACT WAS TO BE
JUDGED BY "THE GENERALLY ACCEPTED MORAL CONVENTIONS CURRENT AT THE
TIME."  165 F.2D, AT 153.  JUDGE FRANK, WHO WAS LATER TO AUTHOR THE
ROSENBERG OPINION, IN WHICH A SIMILAR STANDARD WAS ADOPTED, DISSENTED
IN REPOUILLE AND URGED THAT THE CORRECT STANDARD WAS THE "ATTITUDE IN
OUR ETHICAL LEADERS."  165 F.2D, AT 154.  IN LIGHT OF ROSENBERG, IT IS
APPARENT THAT JUDGE FRANK WOULD REQUIRE A MUCH BROADER BASED MORAL
APPROBATION BEFORE STRIKING DOWN A PUNISHMENT AS CRUEL AND UNUSUAL THAN
HE WOULD FOR MERELY HOLDING THAT CONDUCT WAS EVIDENCE OF BAD MORAL
CHARACTER UNDER A LEGISLATIVE ACT. 

/143/  UNITED STATES V. ROSENBERG, SUPRA, AT 608. 

/144/  SEE REPOUILLE V. UNITED STATES, SUPRA, AT 153.  IN
WITHERSPOON V. ILLINOIS, 391 U.S.,AT 520, THE COURT CITED A PUBLIC
OPINION POLL THAT SHOWED THAT 42% OF THE AMERICAN PEOPLE FAVORED
CAPITAL PUNISHMENT, WHILE 47% OPPOSED IT.  BUT THE POLLS HAVE SHOWN
GREAT FLUCTUATION.  SEE WHAT DO AMERICANS THINK OF THE DEATH PENALTY?,
IN BEDAU, SUPRA, N. 45, AT 231-241. 

/145/  THE FACT THAT THE CONSTITUTIONALITY OF CAPITAL PUNISHMENT
TURNS ON THE OPINION OF AN INFORMED CITIZENRY UNDERCUTS THE ARGUMENT
THAT SINCE THE LEGISLATURE IS THE VOICE OF THE PEOPLE, ITS RETENTION OF
CAPITAL PUNISHMENT MUST REPRESENT THE WILL OF THE PEOPLE.  SO FEW
PEOPLE HAVE BEEN EXECUTED IN THE PAST DECADE THAT CAPITAL PUNISHMENT IS
A SUBJECT ONLY RARELY BROUGHT TO THE ATTENTION OF THE AVERAGE
AMERICAN.  LACK OF EXPOSURE TO THE PROBLEM IS LIKELY TO LEAD TO
INDIFFERENCE, AND INDIFFERENCE AND IGNORANCE RESULT IN PRESERVATION OF
THE STATUS QUO, WHETHER OR NOT THAT IS DESIRABLE, OR DESIRED. 

IT MIGHT BE ARGUED THAT IN CHOOSING TO REMAIN INDIFFERENT AND
UNINFORMED, CITIZENS REFLECT THEIR JUDGMENT THAT CAPITAL PUNISHMENT IS
REALLY A QUESTION OF UTILITY, NOR MORALITY, AND NOT ONE, THEREFORE, OF
GREAT CONCERN.  AS ATTRACTIVE AS THIS IS ON ITS FACT, IT CANNOT BE
CORRECT, BECAUSE SUCH AN ARGUMENT REQUIRES THAT THE CHOICE TO REMAIN
IGNORANT OR INDIFFERENT BE A VIABLE ONE.  THAT, IN TURN, REQUIRES THAT
IT BE A KNOWLEDGEABLE CHOICE.  IT IS THEREFORE IMPERATIVE FOR
CONSTITUTIONAL PURPOSES TO ATTEMPT TO DISCERN THE PROBABLE OPINION OF
AN INFORMED ELECTORATE. 

/146/ CF. PACKER, MAKING THE PUNISHMENT FIT THE CRIME, 77
HARV.L.REV.  1071, 1076 (1964). 

/147/  E.G., GOLD, A PSYCHIATRIC REVIEW OF CAPITAL PUNISHMENT, 6
J.FORENSIC SCI.  465, 466 (1961); A. KOESTLER, REFLECTIONS ON HANGING
164 (1957); CF. C. DUFFY & A. HIRSHBERG, 88 MEN AND 2 WOMEN 257-258
(1962). 

/148/  HEARINGS, SUPRA, N. 80, AT 11 (STATEMENT OF M. DISALLE). 

/149/  NATIONAL PRISONER STATISTICS NO. 45, CAPITAL PUNISHMENT 1930
1968, P. 7 (AUG. 1969). 

/150/  IBID. 

/151/  IBID. 

/152/  ALEXANDER, THE ABOLITION OF CAPITAL PUNISHMENT, PROCEEDINGS
OF THE 96TH CONGRESS OF CORRECTION OF THE AMERICAN CORRECTIONAL
ASSOCIATION, BALTIMORE, MD., 57 (1966); CRIMINAL JUSTICE:  THE GENERAL
ASPECTS, IN BEDAU, SUPRA, N. 45, AT 405, 411-414; BEDAU, DEATH SENTENCE
IN NEW JERSEY, 1907-1960, 19 RUTGERS L.REV.  1, 18-21, 52-53 (1964); R.
CLARK, CRIME IN AMERICAN 355 (1970); HOCHKAMMER, THE CAPITAL PUNISHMENT
CONTROVERSY, 60 J.CRIM.L.C.& P.S. 360, 361-362 (1969); JOHNSON, THE
NEGRO AND CRIME, 217 ANNALS AM.ACAD.POL.& SOC.SCI, 93, 95, 99 (1941);
JOHNSON SELECTIVE FACTORS IN CAPITAL PUNISHMENT, 36 SOCIAL FORCES 165
(1957); UNITED NATIONS, SUPRA, N. 77, PARA. 69, AT 98; WILLIAMS, THE
DEATH PENALTY AND THE NEGRO, 67 CRISIS 501, 511 (1960); M. WOLFGANG &
B. COHEN, CRIME AND RACE:  CONCEPTIONS AND MISCONCEPTIONS 77, 80-81, 85
86 (1970); WOLFGANG, KELLY, & NOLDE, COMPARISON OF THE EXECUTED AND THE
COMMUTED AMONG ADMISSIONS TO DEATH ROW, 53 J.CRIM.L.C.& P.S. 301
(1962).  MR. JUSTICE DOUGLAS EXPLORES THE DISCRIMINATORY APPLICATION OF
THE DEATH PENALTY AT GREAT LENGTH, ANTE, AT 249-257. 

/153/  NATIONAL PRISONER STATISTICS NO. 45, CAPITAL PUNISHMENT 1930
1968, P. 28 (AUG. 1969). 

/154/  MEN KILL BETWEEN FOUR AND FIVE TIMES MORE FREQUENTLY THAN
WOMEN.  SEE WOLFGANG, A SOCIOLOGICAL ANALYSIS OF CRIMINAL HOMICIDE, IN
BEDAU, SUPRA, N. 45, AT 74, 75.  HENCE, IT WOULD NOT BE IRREGULAR TO
SEE FOUR OR FIVE TIMES AS MANY MEN EXECUTED AS WOMEN.  THE STATISTICS
SHOW A STARTLING GREATER DISPARITY, HOWEVER.  UNITED NATIONS, SUPRA, N.
77, PARA. 67, AT 97-98. 

/155/  CRIMINAL JUSTICE:  THE GENERAL ASPECTS, IN BEDAU, SUPRA, AT
405, 411; BEDAU, CAPITAL PUNISHMENT IN OREGON, 1903-64, 45 ORE.L.REV. 
1 (1965); BEDAU, DEATH SENTENCES IN NEW JERSEY, 1907-1960, 19 RUTGERS
L.REV.  1 (1964); R. CLARK, CRIME IN AMERICA 335 (1970); C. DUFFY & A.
HIRSHBERG, 88 MEN AND 2 WOMEN 256-257 (1962); CARTER & SMITH, THE DEATH
PENALTY IN CALIFORNIA:  A STATISTICAL AND COMPOSITE PORTRAIT, 15 CRIME
& DELIN.  62 1969); HEARINGS, SUPRA, N. 80, AT 124-125 (STATEMENT OF
DR. WEST); KOENINGER, CAPITAL PUNISHMENT IN TEXAS, 1924-1968, 15 CRIME
& DELIN.  132 (1969); MCGEE, SUPRA, N. 116, AT 11-12. 

/156/  SEE, E.G., E. BORCHARD, COVICTING THE INNOCENT (1932); J.
FRANK & B. FRANK, NOT GUILTY (1957); E. GARDNER, COURT OF LAST RESORT
(1952).  THESE THREE BOOKS EXAMINE CASES IN WHICH INNOCENT PERSONS WERE
SENTENCED TO DIE.  NONE OF THE INNOCENTS WAS ACTUALLY EXECUTED,
HOWEVER.  BEDAU HAS ABSTRACTED 74 CASES OCCURRING IN THE UNITED STATES
SINCE 1893 IN WHICH A WRONGFUL CONVICTION FOR MURDER WAS ALLEGED AND
USUALLY PROVED "BEYOND DOUBT."  IN ALMOST EVERY CASE, THE CONVICTIONS
WERE SUSTAINED ON APPEAL.  BEDAU, SERIOUSLY CONTENDS THAT INNOCENT
PERSONS WERE ACTUALLY EXECUTED.  MURDER, ERRORS OF JUSTICE, AND CAPITAL
PUNISHMENT, IN BEDAU, SUPRA, N. 45, AT 434, 438.  SEE ALSO BLACK, THE
CRISIS IN CAPITAL PUNISHMENT, 31 MD.L.REV.  289 (1971); HIRSCHBERG,
WRONGFUL CONVICTIONS, 13 ROCKY MT.L.REV.  20 (1940); POLLAK, THE ERRORS
OF JUSTICE, 284 ANNALS AM.ACAD.POL.& SOC.SCI.  115 (1952). 

/157/  E. GARDNER, COURT OF LAST RESORT, 178 (1952). 

/158/  MR. JUSTICE DOUGLAS RECOGNIZED THIS FACT WHEN HE WROTE: 

"ONE WHO REVIEWS THE RECORDS OF CRIMINAL TRIALS NEED NOT LOOK LONG
TO FIND AN INSTANCE WHERE THE ISSUE OF GUILT OR INNOCENCE HANGS IN
DELICATE BALANCE.  A JUDGE WHO DENIES A STAY OF EXECUTION IS A CAPITAL
CASE OFTEN WONDERS IF AN INNOCENT MAN IS GOING TO HIS DEATH.  . . . 

"THOSE DOUBTS EXIST BECAUSE OUR SYSTEM OF CRIMINAL JUSTICE DOES NOT
WORK WITH THE EFFICIENCY OF A MACHINE-- ERRORS ARE MADE AND INNOCENT AS
WELL AS GUILTY PEOPLE ARE SOMETIMES PUNISHED.  . . .     " . . . WE
BELIEVE THAT IT IS BETTER FOR TEN GUILTY PEOPLE TO BE SET FREE THAN FOR
ONE INNOCENT MAN TO BE UNJUSTLY IMPRISONED. 

"YET THE SAD TRUTH IS THAT A COG IN THE MACHINE OFTEN SLIPS:
MEMORIES FAIL; MISTAKEN IDENTIFICATIONS ARE MADE; THOSE WHO WEILD THE
POWER OF LIFE AND DEATH ITSELF-- THE POLICE OFFICER, THE WITNESS, THE
PROSECUTOR, THE JUROR, AND EVEN THE JUDGE-- BECOME OVERZEALOUS IN THEIR
CONCERN THAT CRIMINALS BE BROUGHT TO JUSTICE.  AND AT TIMES THERE IS A
VENAL COMBINATION BETWEEN THE POLICE AND A WITNESS."  FOREWARD, J.
FRANK & B. FRANK, NOT GUILTY 11-12 (1957).     THERE HAS BEEN AN
"INCREDIBLE LAG" BETWEEN THE DEVELOPMENT OF MODERN SCIENTIFIC METHODS
OF INVESTIGATION AND THEIR APPLICATION TO CRIMINAL CASES.  WHEN MODERN
METHODOLOGY IS AVAILABLE, PROSECUTORS HAVE THE RESOURCES TO UTILITZE
IT, WHEREAS DEFENSE COUNSEL OFTEN MAY NOT.  LASSERS, PROOF OF GUILT IN
CAPITAL CASES-- AN UNSCIENCE, 58 J.CRIM.L.C.& P.S. 310 (1967).  THIS
INCREASES THE CHANGES OF ERROR. 

/159/  EHRMANN, THE DEATH PENALTY AND THE ADMINISTRATION OF JUSTICE,
284 ANNALS AM.ACAD.POL.& SOC.SCI.  73, 83 (1952). 

/160/  F. FRANKFURTER, OF LAW AND MEN 81 (1956). 

/161/  B. ESHELMAN & F. RILEY, DEATH ROW CHAPLAIN 222 (1962). 

/162/  MCCAFFERTY, MAJOR TRENDS IN THE USE OF CAPITAL PUNISHMENT, 25
FED.PROB.,NO. 3, PP. 15, 21 (SEPT. 1961) (QUOTING DR. S. GLUECK OF
HARVARD UNIVERSITY). 

/163/  MR. JUSTICE POWELL SUGGESTS THAT THIS CONCLUSION IS
SPECULATIVE, AND HE IS CERTAINLY CORRECT.  BUT THE MERE RECOGNITION OF
THIS TRUTH DOES NOT UNDERCUT THE VALIDITY OF THE CONCLUSION.  MR.
JUSTICE POWELL HIMSELF CONCEDES THAT JUDGES SOMEHOW KNOW THAT CERTAIN
PUNISHMENTS ARE NO LONGER ACCEPTABLE TO OUR SOCIETY; FOR EXAMPLE, HE
REFERS TO BRANDING AND PILLORYING.  WHENCE COMES THIS KNOWLEDGE?  THE
ANSWER IS THAT IT COMES FROM OUR INTUITION AS HUMAN BEINGS THAT OUR
FELLOW HUMAN BEINGS NO LONGER WILL TOLERATE SUCH PUNISHMENTS. 

I AGREE WHOLEHEARTEDLY WITH THE IMPLICATION IN MY BROTHER POWELL'S
OPINION THAT JUDGES ARE NOT FREE TO STRIKE DOWN PENALITIES THAT THEY
FIND PERSONALLY OFFENSIVE.  BUT, I DISAGREE WITH HIS SUGGESTION THAT IT
IS IMPROPER FOR JUDGES TO ASK THEMSELVES WHETHER A SPECIFIC PUNISHMENT
IS MORALLY ACCEPTABLE TO THE AMERICAN PUBLIC.  CONTRARY TO SOME CURRENT
THOUGHT, JUDGES HAVE NOT LIVED LIVES ISOLATED FROM A BROAD RANGE OF
HUMAN EXPERIENCE.  THEY HAVE COME INTO CONTACT WITH MANY PEOPLE, MANY
WAYS OF LIFE, AND MANY PHILOSOPHIES.  THEY HAVE LEARNED TO SHARE WITH
THEIR FELLOW HUMAN BEINGS COMMON VIEWS OF MORALITY.  IF, AFTER DRAWING
ON THIS EXPERIENCE AND CONSIDERING THE VAST RANGE OF PEOPLE AND VIEWS
THAT THEY HAVE ENCOUNTERED, JUDGES CONCLUDE THAT THESE PEOPLE WOULD NOT
KNOWINGLY TOLERATE A SPECIFIC PENALTY IN LIGHT OF ITS COSTS, THEN THIS
CONCLUSION IS ENTITLED TO WEIGHT.  SEE FRANKEL, BOOK REVIEW, 85
HARV.L.REV.  354 (1971).  JUDGES CAN FIND ASSISTANCE IN DETERMINING
WHETHER THEY ARE BEING OBJECTIVE, RATHER THAN SUBJECTIVE, BY REFERRING
TO THE ATTITUDES OF THE PERSONS WHOM MOST CITIZENS CONSIDER OUR
"ETHICAL LEADERS."  SEE REPOUILLE V. UNITED STATES, 165 F.2D, AT 154
(FRANK, J., DISSENTING). 

I MUST ALSO ADMIT THAT I AM CONFUSED AS TO THE POINT THAT MY BROTHER
POWELL SEEKS TO MAKE REGARDING THE UNDERPRIVILEGED MEMBERS OF OUR
SOCIETY.  IF HE IS STATING THAT THIS COURT CANNOT SOLVE ALL OF THEIR
PROBLEMS IN THE CONTEXT OF THIS CASE, OR EVEN MANY OF THEM, I WOULD
AGREE WITH HIM.  BUT IF HE IS OPINING THAT IT IS ONLY THE POOR, THE
IGNORANT, THE RACIAL MINORITIES, AND THE HAPLESS IN OUR SOCIETY WHO ARE
EXECUTED; THAT THEY ARE EXECUTED FOR NO REAL REASON OTHER THAN TO
SATISFY SOME VAGUE NOTION OF SOCIETY'S CRY FOR VENGEANCE; AND THAT
KNOWING THESE THINGS, THE PEOPLE OF THIS COUNTRY WOULD NOT CARE, THEN I
MOST URGENTLY DISAGREE. 

THERE IS TOO MUCH CRIME, TOO MUCH KILLING, TOO MUCH HATRED IN THIS
COUNTRY.  IF THE LEGISLATURES COULD ERADICATE THESE ELEMENTS FROM OUR
LIVES BY UTILIZING CAPITAL PUNISHMENT, THEN THERE WOULD BE A VALID
PURPOSE FOR THE SANCTION AND THE PUBLIC WOULD SURELY ACCEPT IT.  IT
WOULD BE CONSTITUTIONAL.  AS THE CHIEF JUSTICE AND MR. JUSTICE POWELL
POINT OUT, HOWEVER, CAPITAL PUNISHMENT HAS BEEN WITH US A LONG TIME. 
WHAT PURPOSE HAS IT SERVED?  THE EVIDENCE IS THAT IT HAS SERVED NONE. 
I CANNOT AGREE THAT THE AMERICAN PEOPLE HAVE BEEN SO HARDENED, SO
EMBITTERED THAT THEY WANT TO TAKE THE LIFE OF ONE WHO PERFORMS EVEN THE
BASEST CRIMINAL ACT KNOWING THAT THE EXECUTION IS NOTHING MORE THAN
BLOODLUST.  THIS HAS NOT BEEN MY EXPERIENCE WITH MY FELLOW CITIZENS. 
RATHER, I HAVE FOUND THAT THEY EARNESTLY DESIRE THEIR SYSTEM OF
PUNISHMENTS TO MAKE SENSE IN ORDER THAT IT CAN BE A MORALLY JUSTIFIABLE
SYSTEM.  SEE GENERALLY ARNOLD, THE CRIMINAL TRIAL AS A SYMBOL OF PUBLIC
MORALITY, IN CRIMINAL JUSTICE IN OUR TIME 137 (A. HOWARD ED. 1967). 

/164/  R. CLARK, CRIME IN AMERICA, 336 (1970). 

/165/  SOME JURISDICTIONS HAVE DE FACTO ABOLITION; OTHERS HAVE DE
JURE.  ID., AT 330; HEARINGS, SUPRA, N. 80, AT 9-10 (STATEMENT OF M.
DISALLE).  SEE GENERALLY PATRICK, THE STATUS OF CAPITAL PUNISHMENT:  A
WORLD PERSPECTIVE, 56 J.CRIM.L.C.& P.S. 397 (1965); UNITED NATIONS,
SUPRA, N. 77, PARAS. 10-17, 63-65, AT 83-85, 96-97; BRIEF FOR
PETITIONER IN NO. 68-5027, APP. E (AIKENS V. CALIFORNIA, 406 U.S. 813
(1972)). 

        APPENDIX I TO OPINION OF MARSHALL, J., CONCURRING

        ABOLITION OF THE DEATH PENALTY IN THE UNITED STATES:

           1846-1968

        (STATES ARE LISTED ACCORDING TO YEAR MOST RECENT ACTION WAS

      TAKEN)

(CHART OMITTED)

        APPENDIX II TO OPINION OF MARSHALL, J., CONCURRING

        CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATION, AND

           NUMBER OF EXECUTIONS IN CERTAIN AMERICAN STATES:

           1920-1955

(CHART OMITTED)

        APPENDIX III TO OPINION OF MARSHALL, J., CONCURRING

        CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATION, AND

           NUMBER OF EXECUTIONS IN CERTAIN AMERICAN STATES:

           1920-1955

(CHART OMITTED) 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN, MR.
JUSTICE POWELL, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

AT THE OUTSET IT IS IMPORTANT TO NOTE THAT ONLY TWO MEMBERS OF THE
COURT, MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL, HAVE CONCLUDED
THAT THE EIGHTH AMENDMENT PROHIBITS CAPITAL PUNISHMENT FOR ALL CRIMES
AND UNDER ALL CIRCUMSTANCES.  MR. JUSTICE DOUGLAS HAS ALSO DETERMINED
THAT THE DEATH PENALTY CONTRAVENES THE EIGHTH AMENDMENT, ALTHOUGH I DO
NOT READ HIS OPINION AS NECESSARILY REQUIRING FINAL ABOLITION OF THE
PENALTY.  /1/  FOR THE REASONS SET FORTH IN PARTS I-IV OF THIS OPINION,
I CONCLUDE THAT THE CONSTITUTIONAL PROHIBITION AGAINST "CRUEL AND
UNUSUAL PUNISHMENTS" CANNOT BE CONSTRUED TO BAR THE IMPOSITION OF THE
PUNISHMENT OF DEATH. 

MR. JUSTICE STEWARD AND MR. JUSTICE WHITE HAVE CONCLUDED THAT
PETITIONERS' DEATH SENTENCES MUST BE SET ASIDE BECAUSE PREVAILING
SENTENCING PRACTICES DO NOT COMPLY WITH THE EIGHTH AMENDMENT.  FOR THE
REASONS SET FORTH IN PART V OF THIS OPINION, I BELIEVE THIS APPROACH
FUNDAMENTALLY MISCONCEIVES THE NATURE OF THE EIGHTH AMENDMENT GUARANTEE
AND FLIES DIRECTLY IN THE FACE OF CONTROLLING AUTHORITY OF EXTREMELY
RECENT VINTAGE. 

        I 

IF WE POSSESSED OF LEGISLATIVE POWER, I WOULD EITHER JOIN WITH MR.
JUSTICE BRENNAN AND MR. JUSTICE MARSHALL OR, AT THE VERY LEAST,
RESTRICT THE USE OF CAPITAL PUNISHMENT TO A SMALL CATEGORY OF THE MOST
HEINOUS CRIMES.  OUR CONSTITUTIONAL INQUIRY, HOWEVER, MUST BE DIVORCED
FROM PERSONAL FEELINGS AS TO THE MORALITY AND EFFICACY OF THE DEATH
PENALTY, AND BE CONFINED TO THE MEANING AND APPLICABILITY OF THE
UNCERTAIN LANGUAGE OF THE EIGHTH AMENDMENT.  THERE IS NO NOVELTY IN
BEING CALLED UPON TO INTERPRET A CONSTITUTIONAL PROVISION THAT IS LESS
THAN SELF-DEFINING, BUT, OF ALL OUR FUNDAMENTAL GUARANTEES, THE BAN ON
"CRUEL AND UNUSUAL PUNISHMENTS" IS ONE OF THE MOST DIFFICULT TO
TRANSLATE INTO JUDICIALLY MANAGEABLE TERMS. 

THE WIDELY DIVERGENT VIEWS OF THE AMENDMENT EXPRESSED IN TODAY'S
OPINIONS REVEAL THE HAZE THAT SURROUNDS THIS CONSTITUTIONAL COMMAND. 
YET IT IS ESSENTIAL TO OUR ROLE AS A COURT THAT WE NOT SEIZE UPON THE
ENIGMATIC CHARACTER OF THE GUARANTEE AS AN INVITATION TO ENACT OUR
PERSONAL PREDILECTIONS INTO LAW. 

ALTHOUGH THE EIGHTH AMENDMENT LITERALLY READS AS PROHIBITING ONLY
THOSE PUNISHMENTS THAT ARE BOTH "CRUEL" AND "UNUSUAL," HISTORY COMPELS
THE CONCLUSION THAT THE CONSTITUTION PROHIBITS ALL PUNISHMENTS OF
EXTREME AND BARBAROUS CRUELTY, REGARDLESS OF HOW FREQUENTLY OR
INFREQUENTLY IMPOSED. 

THE MOST PERSUASIVE ANALYSIS OF PARLIAMENT'S ADOPTION OF THE ENGLISH
BILL OF RIGHTS OF 1689-- THE UNQUESTIONED SOURCE OF THE EIGHTH
AMENDMENT WORDING-- SUGGESTS THAT THE PROHIBITION AGAINST "CRUEL AND
UNUSUAL PUNISHMENTS" WAS INCLUDED THEREIN OUT OF AVERSION TO SEVERE
PUNISHMENTS NOT LEGALLY AUTHORIZED AND NOT WITHIN THE JURISDICTION OF
THE COURTS TO IMPOSE.  TO THE EXTENT THAT THE TERM "UNUSUAL" HAD ANY
IMPORTANCE IN THE ENGLISH VERSION, IT WAS APPARENTLY INTENDED AS A
REFERENCE TO ILLEGAL PUNISHMENTS.  /2/ 

FROM EVERY INDICATION, THE FRAMERS OF THE EIGHTH AMENDMENT INTENDED
TO GIVE THE PHRASE A MEANING FAR DIFFERENT FROM THAT OF ITS ENGLISH
PRECURSOR.  THE RECORDS OF THE DEBATES IN SEVERAL OF THE STATE
CONVENTIONS CALLED TO RATIFY THE 1789 DRAFT CONSTITUTION SUBMITTED
PRIOR TO THE ADDITION OF THE BILL OF RIGHTS SHOW THAT THE FRAMERS'
EXCLUSIVE CONCERN WAS THE ABSENCE OF ANY BAN ON TORTURES.  /3/  THE
LATER INCLUSION OF THE "CRUEL AND UNUSUAL PUNISHMENTS" CLAUSE WAS IN
RESPONSE TO THESE OBJECTIONS.  THERE WAS NO DISCUSSION OF THE
INTERRELATIONSHIP OF THE TERMS "CRUEL"  AND "UNUSUAL," AND THERE IS
NOTHING IN THE DEBATES SUPPORTING THE INFERENCE THAT THE FOUNDING
FATHERS WOULD HAVE BEEN RECEPTIVE TO TORTUROUS OR EXCESSIVELY CRUEL
PUNISHMENTS EVEN IF USUAL IN CHARACTER OF AUTHORIZED BY LAW. 

THE CASES DECIDED UNDER THE EIGHTH AMENDMENT ARE CONSISTENT WITH THE
TONE OF THE RATIFYING DEBATES.  IN WILKERSON V. UTAH, 99 U.S. 130
(1879), THIS COURT HELD THAT EXECUTION BY SHOOTING WAS NOT A PROHIBITED
MODE OF CARRYING OUT A SENTENCE OF DEATH.  SPEAKING TO THE MEANING OF
THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE, THE COURT STATED, 

"(IT IS SAFE TO AFFIRM THAT PUNISHMENTS OF TORTURE . . . AND ALL
OTHERS IN THE SAME LINE OF UNNECESSARY CRUELTY, ARE FORBIDDEN BY THAT
AMENDMENT TO THE CONSTITUTION."  ID., AT 136.  THE COURT MADE NO
REFERENCE TO THE ROLE OF THE TERM "UNUSUAL" IN THE CONSTITUTIONAL
GUARANTEE. 

IN THE CASE OF IN RE KEMMLER, 136 U.S. 436 (1890), THE COURT HELD
THE EIGHTH AMENDMENT INAPPLICABLE TO THE STATES AND ADDED THE FOLLOWING
DICTUM: 

"SO THAT, IF THE PUNISHMENT PRESCRIBED FOR AN OFFENCE AGAINST THE
LAWS OF THE STATE WERE MANIFESTLY CRUEL AND UNUSUAL, AS BURNING AT THE
STAKE, CRUCIFIXION, BREAKING ON THE WHEEL, OR THE LIKE, IT WOULD BE THE
DUTY OF THE COURTS TO ADJUDGE SUCH PENALTIES TO BE WITHIN THE . . .
(PROHIBITION OF THE NEW YORK CONSTITUTION).  AND WE THINK THIS EQUALLY
TRUE OF THE EIGHTH AMENDMENT, IN ITS APPLICATION TO CONGRESS. 

     " . . . PUNISHMENTS ARE CRUEL WHEN THEY INVOLVE TORTURE OR A

  LINGERING DEATH; BUT THE PUNISHMENT OF DEATH IS NOT CRUEL, WITHIN

  THE MEANING OF THAT WORD AS USED IN THE CONSTITUTION.  IT IMPLIES

  THERE SOMETHING INHUMAN AND BARBAROUS, SOMETHING MORE THAN THE

  MERE EXTINGUISHMENT OF LIFE."  ID., AT 446-447. 

THIS LANGUAGE AGAIN REVEALS AN EXCLUSIVE CONCERN WITH EXTREME CRUELTY. 
THE COURT MADE PASSING REFERENCE TO THE FINDING OF THE NEW YORK COURTS
THAT ELECTROCUTION WAS AN "UNUSUAL" PUNISHMENT, BUT IT SAW NO NEED TO
DISCUSS THE SIGNIFICANCE OF THAT TERM AS USED IN THE EIGHTH AMENDMENT. 

OPINIONS IN SUBSEQUENT CASES ALSO SPEAK OF EXTREME CRUELTY AS THOUGH
THAT WERE THE SUM AND SUBSTANCE OF THE CONSTITUTIONAL PROHIBITION.  SEE
O'NEIL V. VERMONT, 144 U.S. 323, 339-340 (1892) (FIELD, J.,
DISSENTING); WEEMS V. UNITED STATES, 217 U.S. 349, 372-373 (1910);
LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S. 459, 464 (1947).  AS
SUMMARIZED BY MR. CHIEF JUSTICE WARREN IN THE PLURALITY OPINION IN TROP
V. DULLES, 356 U.S. 86, 100 N. 32 (1958): 

     "WHETHER THE WORD 'UNUSUAL' HAS ANY QUALITATIVE MEANING

  DIFFERENT FROM 'CRUEL' IS NOT CLEAR.  ON THE FEW OCCASIONS THIS

  COURT HAS HAD TO CONSIDER THE MEANING OF THE PHRASE, PRECISE

  DISTINCTIONS BETWEEN CRUELTY AND UNUSUALNESS DO NOT SEEM TO HAVE

  BEEN DRAWN.  SEE WEEMS V. UNITED STATES, SUPRA; O'NEIL V.

  VERMONT, SUPRA; WILKERSON V. UTAH, SUPRA.  THESE CASES INDICATE

  THAT THE COURT SIMPLY EXAMINES THE PARTICULAR PUNISHMENT INVOLVED

  IN LIGHT OF THE BASIC PROHIBITION AGAINST INHUMAN TREATMENT,

  WITHOUT REGARD TO ANY SUBTLETIES OF MEANING THAT MIGHT BE LATENT

  IN THE WORD 'UNUSUAL.'" 

I DO NOT SUGGEST THAT THE PRESENCE OF THE WORD "UNUSUAL" IN THE
EIGHTH AMENDMENT IS MERELY VESTIGIAL, HAVING NO RELEVANCE TO THE
CONSTITUTIONALITY OF ANY PUNISHMENT THAT MIGHT BE DEVISED.  BUT WHERE,
AS HERE, WE CONSIDER A PUNISHMENT WELL KNOWN TO HISTORY, AND CLEARLY
AUTHORIZED BY LEGISLATIVE ENACTMENT, IT DISREGARDS THE HISTORY OF THE
EIGHTH AMENDMENT AND ALL THE JUDICIAL COMMENT THAT HAS FOLLOWED TO RELY
ON THE TERM "UNUSUAL" AS AFFECTING THE OUTCOME OF THESE CASES. 
INSTEAD, I VIEW THESE CASES AS TURNING ON THE SINGLE QUESTION WHETHER
CAPITAL PUNISHMENT IS "CRUEL" IN THE CONSTITUTIONAL SENSE.  THE TERM
"UNUSUAL" CANNOT BE READ AS LIMITING THE BAN ON "CRUEL" PUNISHMENTS OR
AS SOMEHOW EXPANDING THE MEANING OF THE TERM "CRUEL."  FOR THIS REASON
I AM UNPERSUADED BY THE FACILE ARGUMENT THAT SINCE CAPITAL PUNISHMENT
HAS ALWAYS BEEN CRUEL IN THE EVERYDAY SENSE OF THE WORD, AND HAS BECOME
UNUSUAL DUE TO DECREASED USE, IT IS, THEREFORE, NOW "CRUEL AND
UNUSUAL." 

        II 

COUNSEL FOR PETITIONERS PROPERLY CONCEDE THAT CAPITAL PUNISHMENT WAS
NOT IMPERMISSIBLY CRUEL AT THE TIME OF THE ADOPTION OF THE EIGHTH
AMENDMENT.  NOT ONLY DO THE RECORDS OF THE DEBATES INDICATE THAT THE
FOUNDING FATHERS WERE LIMITED IN THEIR CONCERN TO THE PREVENTION OF
TORTURE, BUT IT IS ALSO CLEAR FROM THE LANGUAGE OF THE CONSTITUTION
ITSELF THAT THERE WAS NO THOUGHT WHATEVER OF THE ELIMINATION OF CAPITAL
PUNISHMENT.  THE OPENING SENTENCE OF THE FIFTH AMENDMENT IS A GUARANTEE
THAT THE DEATH PENALTY NOT BE IMPOSED "UNLESS ON A PRESENTMENT OR
INDICTMENT OF A GRAND JURY."  THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT IS A PROHIBITION AGAINST BEING "TWICE PUT IN JEOPARDY OF
LIFE" FOR THE SAME OFFENSE.  SIMILARLY, THE DUE PROCESS CLAUSE COMMANDS
"DUE PROCESS OF LAW" BEFORE AN ACCUSED CAN BE "DEPRIVED OF LIFE,
LIBERTY, OR PROPERTY."  THUS, THE EXPLICIT LANGUAGE OF THE CONSTITUTION
AFFIRMATIVELY ACKNOWLEDGES THE LEGAL POWER TO IMPOSE CAPITAL
PUNISHMENT; IT DOES NOT EXPRESSLY OR BY IMPLICATION ACKNOWLEDGE THE
LEGAL POWER TO IMPOSE ANY OF THE VARIOUS PUNISHMENTS THAT HAVE BEEN
BANNED AS CRUEL SINCE 1791.  SINCE THE EIGHTH AMENDMENT WAS ADOPTED ON
THE SAME DAY IN 1791 AS THE FIFTH AMENDMENT, IT HARDLY NEEDS MORE TO
ESTABLISH THAT THE DEATH PENALTY WAS NOT "CRUEL" IN THE CONSTITUTIONAL
SENSE AT THAT TIME. 

IN THE 181 YEARS SINCE THE ENACTMENT OF THE EIGHTH AMENDMENT, NOT A
SINGLE DECISION OF THIS COURT HAS CAST THE SLIGHTEST SHADOW OF A DOUBT
ON THE CONSTITUTIONALITY OF CAPITAL PUNISHMENT.  IN REJECTING EIGHTH
AMENDMENT ATTACKS ON PARTICULAR MODES OF EXECUTION, THE COURT HAS MORE
THAN ONCE IMPLICITLY DENIED THAT CAPITAL PUNISHMENT IS IMPERMISSIBLY
"CRUEL" IN THE CONSTITUTIONAL SENSE.  WILKERSON V. UTAH, 99 U.S. 130
(1879); LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S.,AT 464.  IN RE
KEMMLER, 136 U.S. 436 (1890) (DICTUM).  IT IS ONLY 14 YEARS SINCE MR.
CHIEF JUSTICE WARREN, SPEAKING FOR FOUR MEMBERS OF THE COURT, STATED
WITHOUT EQUIVOCATION: 

"WHATEVER THE ARGUMENTS MAY BE AGAINST CAPITAL PUNISHMENT, BOTH ON
MORAL GROUNDS AND IN TERMS OF ACCOMPLISHING THE PURPOSES OF PUNISHMENT-
AND THEY ARE FORCEFUL-- THE DEATH PENALTY HAS BEEN EMPLOYED THROUGHOUT
OUR HISTORY, AND, IN A DAY WHEN IT IS STILL WIDELY ACCEPTED, IT CANNOT
BE SAID TO VIOLATE THE CONSTITUTIONAL CONCEPT OF CRUELTY."  TROP V.
DULLES, 356 U.S.,AT 99.  IT IS ONLY ONE YEAR SINCE MR. JUSTICE BLACK
MADE HIS FEELINGS CLEAR ON THE CONSTITUTIONAL ISSUE: 

"THE EIGHTH AMENDMENT FORBIDS 'CRUEL AND UNUSUAL PUNISHMENTS.'  IN
MY VIEW, THESE WORDS CANNOT BE READ TO OUTLAW CAPITAL PUNISHMENT
BECAUSE THAT PENALTY WAS IN COMMON USE AND AUTHORIZED BY LAW HERE AND
IN THE COUNTRIES FROM WHICH OUR ANCESTORS CAME AT THE TIME THE
AMENDMENT WAS ADOPTED.  IT IS INCONCEIVABLE TO ME THAT THE FRAMERS
INTENDED TO END CAPITAL PUNISHMENT BY THE AMENDMENT."  MCGAUTHA V.
CALIFORNIA, 402 U.S. 183, 226 (1971) (SEPARATE OPINION).  BY LIMITING
ITS GRANTS OF CERTIORARI, THE COURT HAS REFUSED EVEN TO HEAR ARGUMENT
ON THE EIGHTH AMENDMENT CLAIM ON TWO OCCASIONS IN THE LAST FOUR YEARS. 
WITHERSPOON V. ILLINOIS, CERT. GRANTED, 389 U.S. 1035, REV'D, 391 U.S.
510 (1968); MCGAUTHA V. CALIFORNIA, CERT. GRANTED, 398 U.S. 936 (1970),
AFF'D, 402 U.S. 183 (1971).  IN THESE CASES THE COURT CONFINED ITS
ATTENTION TO THE PROCEDURAL ASPECTS OF CAPITAL TRIALS, IT BEING
IMPLICIT THAT THE PUNISHMENT ITSELF COULD BE CONSTITUTIONALLY IMPOSED. 
NONETHELESS, THE COURT HAS NOW BEEN ASKED TO HOLD THAT A PUNISHMENT
CLEARLY PERMISSIBLE UNDER THE CONSTITUTION AT THE TIME OF ITS ADOPTION
AND ACCEPTED AS SUCH BY EVERY MEMBER OF THE COURT UNTIL TODAY, IS
SUDDENLY SO CRUEL AS TO BE INCOMPATIBLE WITH THE EIGHTH AMENDMENT. 

BEFORE RECOGNIZING SUCH AN INSTANT EVOLUTION IN THE LAW, IT SEEMS
FAIR TO ASK WHAT FACTORS HAVE CHANGED THAT CAPITAL PUNISHMENT SHOULD
NOW BE "CRUEL" IN THE CONSTITUTIONAL SENSE AS IT HAS NOT BEEN IN THE
PAST.  IT IS APPARENT THAT THERE HAS BEEN NO CHANGE OF CONSTITUTIONAL
SIGNIFICANCE IN THE NATURE OF THE PUNISHMENT ITSELF.  TWENTIETH CENTURY
MODES OF EXECUTION SURELY INVOLVE NO GREATER PHYSICAL SUFFERING THAN
THE MEANS EMPLOYED AT THE TIME OF THE EIGHTH AMENDMENT'S ADOPTION.  AND
ALTHOUGH A MAN AWAITING EXECUTION MUST INEVITABLY EXPERIENCE
EXTRAORDINARY MENTAL ANGUISH, /4/  NO ONE SUGGESTS THAT THIS ANGUISH IS
MATERIALLY DIFFERENT FROM THAT EXPERIENCED BY CONDEMNED MEN IN 1791,
EVEN THOUGH PROTRACTED APPELLATE REVIEW PROCESSES HAVE GREATLY
INCREASED THE WAITING TIME ON "DEATH ROW."  TO BE SURE, THE ORDEAL OF
THE CONDEMNED MAN MAY BE THOUGHT CRUEL IN THE SENSE THAT ALL SUFFERING
IS THOUGHT CRUEL.  BUT IF THE CONSTITUTION PROSCRIBED EVERY PUNISHMENT
PRODUCING SEVERE EMOTIONAL STRESS, THEN CAPITAL PUNISHMENT WOULD
CLEARLY HAVE BEEN IMPERMISSIBLE IN 1791. 

HOWEVER, THE INQUIRY CANNOT END HERE.  FOR REASONS UNRELATED TO ANY
CHANGE IN INTRINSIC CRUELTY, THE EIGHTH AMENDMENT PROHIBITION CANNOT
FAIRLY BE LIMITED TO THOSE PUNISHMENTS THOUGHT EXCESSIVELY CRUEL AND
BARBAROUS AT THE TIME OF THE ADOPTION OF THE EIGHTH AMENDMENT.  A
PUNISHMENT IS INORDINATELY CRUEL, IN THE SENSE WE MUST DEAL WITH IT IN
THESE CASES, CHIEFLY AS PERCEIVED BY THE SOCIETY SO CHARACTERIZING IT.
THE STANDARD OF EXTREME CRUELTY IS NOT MERELY DESCRIPTIVE, BUT
NECESSARILY EMBODIES A MORAL JUDGMENT.  THE STANDARD ITSELF REMAINS THE
SAME, BUT ITS APPLICABILITY MUST CHANGE AS THE BASIC MORES OF SOCIETY
CHANGE.  THIS NOTION IS NOT NEW TO EIGHTH AMENDMENT ADJUCIATION.  IN
WEEMS V. UNITED STATES, 217 U.S. 349 (1910), THE COURT REFERRED WITH
APPARENT APPROVAL TO THE OPINION OF THE COMMENTATORS THAT "(THE CLAUSE
OF THE CONSTITUTION . . . MAY BE THEREFORE PROGRESSIVE, AND IS NOT
FASTENED TO THE OBSOLETE BUT MAY ACQUIRE MEANING AS PUBLIC OPINION
BECOMES ENLIGHTENED BY A HUMANE JUSTICE."  217 U.S.,AT 378.  MR. CHIEF
JUSTICE WARREN, WRITING THE PLURALITY OPINION IN TROP V. DULLES, SUPRA,
STATED, "THE AMENDMENT MUST DRAW ITS MEANING FROM THE EVOLVING
STANDARDS OF DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY." 
356 U.S.,AT 101.  NEVERTHELESS, THE COURT UP TO NOW HAS NEVER ACTUALLY
HELD THAT A PUNISHMENT HAS BECOME IMPERMISSIBLY CRUEL DUE TO A SHIFT IN
THE WEIGHT OF ACCEPTED SOCIAL VALUES; NOR HAS THE COURT SUGGESTED
JUDICIALLY MANAGEABLE CRITERIA FOR MEASURING SUCH A SHIFT IN MORAL
CONSENSUS. 

THE COURT'S QUIESCENCE IN THIS AREA CAN BE ATTRIBUTED TO THE FACT
THAT IN A DEMOCRATIC SOCIETY LEGISLATURES, NOT COURTS, ARE CONSTITUTED
TO RESPOND TO THE WILL AND CONSEQUENTLY THE MORAL VALUES OF THE
PEOPLE.  FOR THIS REASON, EARLY COMMENTATORS SUGGESTED THAT THE "CRUEL
AND UNUSUAL PUNISHMENTS" CLAUSE WAS AN UNNECESSARY CONSTITUTIONAL
PROVISION.  /5/  AS ACKNOWLEDGED IN THE PRINCIPAL BRIEF FOR
PETITIONERS, "BOTH IN CONSTITUTIONAL CONTEMPLATION AND IN FACT, IT IS
THE LEGISLATURE, NOT THE COURT, WHICH RESPONDS TO PUBLIC OPINION AND
IMMEDIATELY REFLECTS THE SOCIETY'S STANDARDS OF DECENCY."  /6/
ACCORDINGLY, PUNISHMENTS SUCH AS BRANDING AND THE CUTTING OFF OF EARS,
WHICH WERE COMMONPLACE AT THE TIME OF THE ADOPTION OF THE CONSTITUTION,
PASSED FROM THE PENAL SCENE WITHOUT JUDICIAL INTERVENTION BECAUSE THEY
BECAME BASICALLY OFFENSIVE TO THE PEOPLE AND THE LEGISLATURES RESPONDED
TO THIS SENTIMENT. 

BEYOND ANY DOUBT, IF WE WERE TODAY CALLED UPON TO REVIEW SUCH
PUNISHMENTS, WE WOULD FIND THEM EXCESSIVELY CRUEL BECAUSE WE COULD SAY
WITH COMPLETE ASSURANCE THAT CONTEMPORARY SOCIETY UNIVERSALLY REJECTS
SUCH BIZARRE PENALTIES.  HOWEVER, THIS SPECULATION ON THE COURT'S
PROBABLE REACTION TO SUCH PUNISHMENTS IS NOT OF ITSELF SIGNIFICANT. 
THE CRITICAL FACT IS THAT THIS COURT HAS NEVER HAD TO HOLD THAT A MODE
OF PUNISHMENT AUTHORIZED BY A DOMESTIC LEGISLATURE WAS SO CRUEL AS TO
BE FUNDAMENTALLY AT ODDS WITH OUR BASIC NOTIONS OF DECENCY.  CF. WEEMS
V. UNITED STATES, SUPRA.  JUDICIAL FINDINGS OF IMPERMISSIBLE CRUELTY
HAVE BEEN LIMITED, FOR THE MOST PART, TO OFFENSIVE PUNISHMENTS DEVISED
WITHOUT SPECIFIC AUTHORITY BY PRISON OFFICIALS, NOT BY LEGISLATURES. 
SEE, E.G., JACKSON V. BISHOP, 404 F.2D 571 (CA8 1968); WRIGHT V.
MCMANN, 387 F.2D 519 (CA2 1967).  THE PAUCITY OF JUDICIAL DECISIONS
INVALIDATING LEGISLATIVELY PRESCRIBED PUNISHMENTS IS POWERFUL EVIDENCE
THAT IN THIS COUNTRY LEGISLATURES HAVE IN FACT BEEN RESPONSIVE-- ALBEIT
BELATEDLY AT TIMES-- TO CHANGES IN SOCIAL ATTITUDES AND MORAL VALUES. 

I DO NOT SUGGEST THAT THE VALIDITY OF LEGISLATIVELY AUTHORIZED
PUNISHMENTS PRESENTS NO JUSTICIABLE ISSUE UNDER THE EIGHTH AMENDMENT,
BUT, RATHER, THAT THE PRIMACY OF THE LEGISLATIVE ROLE NARROWLY CONFINES
THE SCOPE OF JUDICIAL INQUIRY.  WHETHER OR NOT PROVABLE, AND WHETHER OR
NOT TRUE AT ALL TIMES, IN A DEMOCRACY THE LEGISLATIVE JUDGMENT IS
PRESUMED TO EMBODY THE BASIC STANDARDS OF DECENCY PREVAILING IN THE
SOCIETY.  THIS PRESUMPTION CAN ONLY BE NEGATED BY UNAMBIGUOUS AND
COMPELLING EVIDENCE OF LEGISLATIVE DEFAULT. 

        III 

THERE ARE NO OBVIOUS INDICATIONS THAT CAPITAL PUNISHMENT OFFENDS THE
CONSCIENCE OF SOCIETY TO SUCH A DEGREE THAT OUR TRADITIONAL DEFERENCE
TO THE LEGISLATIVE JUDGMENT MUST BE ABANDONED.  IT IS NOT A PUNISHMENT
SUCH AS BURNING AT THE STAKE THAT EVERYONE WOULD INEFFABLY FIND TO BE
REPUGNANT TO ALL CIVILIZED STANDARDS.  NOR IS IT A PUNISHMENT SO
ROUNDLY CONDEMNED THAT ONLY A FEW ABERRANT LEGISLATURES HAVE RETAINED
IT ON THE STATUTE BOOKS.  CAPITAL PUNISHMENT IS AUTHORIZED BY STATUTE
IN 40 STATES, THE DISTRICT OF COLUMBIA, AND IN THE FEDERAL COURTS FOR
THE COMMISSION OF CERTAIN CRIMES.  /7/  ON FOUR OCCASIONS IN THE LAST
11 YEARS CONGRESS HAS ADDED TO THE LIST OF FEDERAL CRIMES PUNISHABLE BY
DEATH.  /8/  IN LOOKING FOR RELIABLE INDICIA OF CONTEMPORARY ATTITUDE,
NONE MORE TRUSTWORTHY HAS BEEN ADVANCED. 

ONE CONCEIVABLE SOURCE OF EVIDENCE THAT LEGISLATURES HAVE ABDICATED
THEIR ESSENTIALLY BAROMETRIC ROLE WITH RESPECT TO COMMUNITY VALUES
WOULD BE PUBLIC OPINION POLLS, OF WHICH THERE HAVE BEEN MANY IN THE
PAST DECADE ADDRESSED TO THE QUESTION OF CAPITAL PUNISHMENT.  WITHOUT
ASSESSING THE RELIABILITY OF SUCH POLLS, OR INTIMATING THAT ANY
JUDICIAL RELIANCE COULD EVER BE PLACED ON THEM, IT NEED ONLY BE NOTED
THAT THE REPORTED RESULTS HAVE SHOWN NOTHING APPROXIMATING THE
UNIVERSAL CONDEMNATION OF CAPITAL PUNISHMENT THAT MIGHT LEAD US TO
SUSPECT THAT THE LEGISLATURES IN GENERAL HAVE LOST TOUCH WITH CURRENT
SOCIAL VALUES.  /9/ 

COUNSEL FOR PETITIONERS RELY ON A DIFFERENT BODY OF EMPIRICAL
EVIDENCE.  THEY ARGUE, IN EFFECT, THAT THE NUMBER OF CASES IN WHICH THE
DEATH PENALTY IS IMPOSED, AS COMPARED WITH THE NUMBER OF CASES IN WHICH
IT IS STATUTORILY AVAILABLE, REFLECTS A GENERAL REVULSION TOWARD THE
PENALTY THAT WOULD LEAD TO ITS REPEAL IF ONLY IT WERE MORE GENERALLY
AND WIDELY ENFORCED.  IT CANNOT BE GAINSAID THAT BY THE CHOICE OF
JURIES-- AND SOMETIMES JUDGES /10/  -- THE DEATH PENALTY IS IMPOSED IN
FAR FEWER THAN HALF THE CASES IN WHICH IT IS AVAILABLE.  /11/  TO GO
FURTHER AND CHARACTERIZE THE RATE OF IMPOSITION AS "FREAKISHLY RARE,"
AS PETITIONERS INSIST, IS UNWARRANTED HYPERBOLE.  AND REGARDLESS OF ITS
CHARACTERIZATION, THE RATE OF IMPOSITION DOES NOT IMPEL THE CONCLUSION
THAT CAPITAL PUNISHMENT IS NOW REGARDED AS INTOLERABLY CRUEL OR
UNCIVILIZED. 

IT IS ARGUED THAT IN THOSE CAPITAL CASES WHERE JURIES HAVE
RECOMMENDED MERCY, THEY HAVE GIVEN EXPRESSION TO CIVILIZED VALUES AND
EFFECTIVELY RENOUNCED THE LEGISLATIVE AUTHORIZATION FOR CAPITAL
PUNISHMENT.  AT THE SAME TIME IT IS ARGUED THAT WHERE JURIES HAVE MADE
THE AWESOME DECISION TO SEND MEN TO THEIR DEATHS, THEY HAVE ACTED
ARBITRARILY AND WITHOUT SENSITIVITY TO PREVAILING STANDARDS OF
DECENCY.  THIS EXPLANATION FOR THE INFREQUENCY OF IMPOSITION OF CAPITAL
PUNISHMENT IS UNSUPPORTED BY KNOWN FACTS, AND IS INCONSISTENT IN
PRINCIPLE WITH EVERYTHING THIS COURT HAS EVER SAID ABOUT THE
FUNCTIONING OF JURIES IN CAPITAL CASES. 

IN MCGAUTHA V. CALIFORNIA, SUPRA, DECIDED ONLY ONE YEAR AGO, THE
COURT HELD THAT THERE WAS NO MANDATE IN THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT THAT JURIES BE GIVEN INSTRUCTIONS AS TO WHEN THE
DEATH PENALTY SHOULD BE IMPOSED.  AFTER REVIEWING THE AUTONOMY THAT
JURIES HAVE TRADITIONALLY EXERCISED IN CAPITAL CASES AND NOTING THE
PRACTICAL DIFFICULTIES OF FRAMING MANAGEABLE INSTRUCTIONS, THIS COURT
CONCLUDED THAT JUDICIALLY ARTICULATED STANDARDS WERE NOT NEEDED TO
INSURE A RESPONSIBLE DECISION AS TO PENALTY.  NOTHING IN MCGAUTHA
LICENSES CAPITAL JURIES TO ACT ARBITRARILY OR ASSUMES THAT THEY HAVE SO
ACTED IN THE PAST.  ON THE CONTRARY, THE ASSUMPTION UNDERLYING THE
MCGAUTHA RULING IS THAT JURIES "WILL ACT WITH DUE REGARD FOR THE
CONSEQUENCES OF THEIR DECISION."  402 U.S.,AT 208. 

THE RESPONSIBILITY OF JURIES DECIDING CAPITAL CASES IN OUR SYSTEM OF
JUSTICE WAS NOWHERE BETTER DESCRIBED THAN IN WITHERSPOON V. ILLINOIS,
SUPRA: 

"(A) JURY THAT MUST CHOOSE BETWEEN LIFE IMPRISONMENT AND CAPITAL
PUNISHMENT CAN DO LITTLE MORE-- AND MUST DO NOTHING LESS-- THAN EXPRESS
THE CONSCIENCE OF THE COMMUNITY ON THE ULTIMATE QUESTION OF LIFE OR
DEATH."  "AND ONE OF THE MOST IMPORTANT FUNCTIONS ANY JURY CAN PERFORM
IN MAKING SUCH A SELECTION IS TO MAINTAIN A LINE BETWEEN CONTEMPORARY
COMMUNITY VALUES AND THE PENAL SYSTEM-- A LINK WITHOUT WHICH THE
DETERMINATION OF PUNISHMENT COULD HARDLY REFLECT 'THE EVOLVING
STANDARDS OF DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY'" 391
U.S.,AT 519 AND N. 15.  THE SELECTIVITY OF JURIES IN IMPOSING THE
PUNISHMENT OF DEATH IS PROPERLY VIEWED AS A REFINEMENT ON, RATHER THAN
A REPUDIATION OF, THE STATUTORY AUTHORIZATION FOR THAT PENALTY. 
LEGISLATURES PRESCRIBE THE CATEGORIES OF CRIMES FOR WHICH THE DEATH
PENALTY SHOULD BE AVAILABLE, AND, ACTING AS "THE CONSCIENCE OF THE
COMMUNITY," JURIES ARE ENTRUSTED TO DETERMINE IN INDIVIDUAL CASES THAT
THE ULTIMATE PUNISHMENT IS WARRANTED.  JURIES ARE UNDOUBTEDLY
INFLUENCED IN THIS JUDGMENT BY MYRIAD FACTORS.  THE MOTIVE OR LACK OF
MOTIVE OF THE PERPETRATOR, THE DEGREE OF INJURY OR SUFFERING OF THE
VICTIM OR VICTIMS, AND THE DEGREE OF BRUTALITY IN THE COMMISSION OF THE
CRIME WOULD SEEM TO BE PROMINENT AMONG THESE FACTORS.  GIVEN THE
GENERAL AWARENESS THAT DEATH IS NO LONGER A ROUTINE PUNISHMENT FOR THE
CRIMES FOR WHICH IT IS MADE AVAILABLE, IT IS HARDLY SURPRISING THAT
JURIES HAVE BEEN INCREASINGLY METICULOUS IN THEIR IMPOSITION OF THE
PENALTY.  BUT TO ASSUME FROM THE MERE FACT OF RELATIVE INFREQUENCY THAT
ONLY A RANDOM ASSORTMENT OF PARIAHS ARE SENTENCED TO DEATH, IS TO CAST
GRAVE DOUBT ON THE BASIC INTEGRITY OF OUR JURY SYSTEM.     IT WOULD, OF
COURSE, BE UNREALISTIC TO ASSUME THAT JURIES HAVE BEEN PERFECTLY
CONSISTENT IN CHOOSING THE CASES WHERE THE DEATH PENALTY IS TO BE
IMPOSED, FOR NO HUMAN INSTITUTION PERFORMS WITH PERFECT CONSISTENCY. 
THERE ARE DOUBTLESS PRISONERS ON DEATH ROW WHO WOULD NOT BE THERE HAD
THEY BEEN TRIED BEFORE A DIFFERENT JURY OR IN A DIFFERENT STATE.  IN
THIS SENSE THEIR FATE HAS BEEN CONTROLLED BY A FORTUITOUS
CIRCUMSTANCE.  HOWEVER, THIS ELEMENT OF FORTUITY DOES NOT STAND AS AN
INDICTMENT EITHER OF THE GENERAL FUNCTIONING OF JURIES IN CAPITAL CASES
OR OF THE INTEGRITY OF JURY DECISIONS IN INDIVIDUAL CASES.  THERE IS NO
EMPIRICAL BASIS FOR CONCLUDING THAT JURIES HAVE GENERALLY FAILED TO
DISCHARGE IN GOOD FAITH THE RESPONSIBILITY DESCRIBED IN WITHERSPOON--
THAT OF CHOOSING BETWEEN LIFE AND DEATH IN INDIVIDUAL CASES ACCORDING
TO THE DICTATES OF COMMUNITY VALUES.  /12/ 

THE RATE OF IMPOSITION OF DEATH SENTENCES FALLS FAR SHORT OF
PROVIDING THE REQUISITE UNAMBIGUOUS EVIDENCE THAT THE LEGISLATURES OF
40 STATES AND THE CONGRESS HAVE TURNED THEIR BACKS ON CURRENT OR
EVOLVING STANDARDS OF DECENCY IN CONTINUING TO MAKE THE DEATH PENALTY
AVAILABLE.  FOR, IF SELECTIVE IMPOSITION EVIDENCES A REJECTION OF
CAPITAL PUNISHMENT IN THOSE CASES WHERE IT IS NOT IMPOSED, IT SURELY
EVIDENCES A CORRELATIVE AFFIRMATION OF THE PENALTY IN THOSE CASES WHERE
IT IS IMPOSED.  ABSENT SOME CLEAR INDICATION THAT THE CONTINUED
IMPOSITION OF THE DEATH PENALTY ON A SELECTIVE BASIS IS VIOLATIVE OF
PREVAILING STANDARDS OF CIVILIZED CONDUCT, THE EIGHTH AMENDMENT CANNOT
BE SAID TO INTERDICT ITS USE. 

IN TWO OF THESE CASES WE HAVE BEEN ASKED TO RULE ON THE NARROWER
QUESTION WHETHER CAPITAL PUNISHMENT OFFENDS THE EIGHTH AMENDMENT WHEN
IMPOSED AS THE PUNISHMENT FOR THE CRIME OF FORCIBLE RAPE.  /13/  IT IS
TRUE THAT THE DEATH PENALTY IS AUTHORIZED FOR RAPE IN FEWER STATES THAN
IT IS FOR MURDER, /14/  AND THAT EVEN IN THOSE STATES IT IS APPLIED
MORE SPARINGLY FOR RAPE THAN FOR MURDER.  /15/  BUT FOR THE REASONS
APTLY BROUGHT OUT IN THE OPINION OF MR. JUSTICE POWELL, POST, AT 456
461, I DO NOT BELIEVE THESE DIFFERENCES CAN BE ELEVATED TO THE LEVEL OF
AN EIGHTH AMENDMENT DISTINCTION.  THIS BLUNT CONSTITUTIONAL COMMAND
CANNOT BE SHARPENED TO CARVE NEAT DISTINCTIONS CORRESPONDING TO THE
CATEGORIES OF CRIMES DEFINED BY THE LEGISLATURES. 

        IV 

CAPITAL PUNISHMENT HAS ALSO BEEN ATTACKED AS VIOLATIVE OF THE EIGHTH
AMENDMENT ON THE GROUND THAT IT IS NOT NEEDED TO ACHIEVE LEGITIMATE
PENAL AIMS AND IS THUS "UNNECESSARILY CRUEL."  AS A PURE POLICY MATTER,
THIS APPROACH HAS MUCH TO RECOMMEND IT, BUT IT SEEKS TO GIVE A
DIMENSION TO THE EIGHTH AMENDMENT THAT IT WAS NEVER INTENDED TO HAVE
AND PROMOTES A LINE OF INQUIRY THAT THIS COURT HAS NEVER BEFORE
PURSUED. 

THE EIGHTH AMENDMENT, AS I HAVE NOTED, WAS INCLUDED IN THE BILL OF
RIGHTS TO GUARD AGAINST THE USE OF TORTUROUS AND INHUMAN PUNISHMENTS,
NOT THOSE OF LIMITED EFFICACY.  ONE OF THE FEW TO SPEAK OUT AGAINST THE
ADOPTION OF THE EIGHTH AMENDMENT ASSERTED THAT IT IS OFTEN NECESSARY TO
USE CRUEL PUNISHMENTS TO DETER CRIMES.  /16/  BUT AMONG THOSE FAVORING
THE AMENDMENT, NO SENTIMENT WAS EXPRESSED THAT A PUNISHMENT OF EXTREME
CRUELTY COULD EVER BE JUSTIFIED BY EXPEDIENCY.  THE DOMINANT THEME OF
THE EIGHTH AMENDMENT DEBATES WAS THAT THE ENDS OF THE CRIMINAL LAWS
CANNOT JUSTIFY THE USE OF MEASURES OF EXTREME CRUELTY TO ACHIEVE THEM. 
CF. ROCHIN V. CALIFORNIA, 342 U.S. 165, 172-173 (1952). 

THE APPARENT SEED OF THE "UNNECESSARY CRUELTY" ARGUMENT IS THE
FOLLOWING LANGUAGE, QUOTED EARLIER, FOUND IN WILKERSON V. UTAH, SUPRA: 

     "DIFFICULTY WOULD ATTEND THE EFFORT TO DEFINE WITH EXACTNESS

  THE EXTENT OF THE CONSTITUTIONAL PROVISION WHICH PROVIDES THAT

  CRUEL AND UNUSUAL PUNISHMENTS SHALL NOT BE INFLICTED; BUT IT IS

  SAFE TO AFFIRM THAT PUNISHMENTS OF TORTURE . . . AND ALL OTHERS

  IN THE SAME LINE OF UNNECESSARY CRUELTY, ARE FORBIDDEN BY THAT

  AMENDMENT TO THE CONSTITUTION."  99 U.S.,AT 135-136. 

TO LIFE THE ITALICIZED PHRASE FROM THE CONTEXT OF THE WILKERSON OPINION
AND NOW VIEW IT AS A MANDATE FOR ASSESSING THE VALUE OF PUNISHMENTS IN
ACHIEVING THE AIMS OF PENOLOGY IS A GROSS DISTORTION; NOWHERE ARE SUCH
AIMS EVEN MENTIONED IN THE WILKERSON OPINION.  THE ONLY FAIR READING OF
THIS PHRASE IS THAT PUNISHMENTS SIMILAR TO TORTURE IN THEIR EXTREME
CRUELTY ARE PROHIBITED BY THE EIGHTH AMENDMENT.  IN LOUISIANA EX REL.
FRANCIS V. RESWEBER, 329 U.S.,AT 463, 464, THE COURT MADE REFERENCE TO
THE EIGHTH AMENDMENT'S PROHIBITION AGAINST THE INFLICTION OF
"UNNECESSARY PAIN" IN CARRYING OUT AN EXECUTION.  THE CONTEXT MAKES
ABUNDANTLY CLEAR THAT THE COURT WAS DISAPPROVING THE WANTON INFLICTION
OF PHYSICAL PAIN, AND ONCE AGAIN NOT ADVISING PRAGMATIC ANALYSIS OF
PUNISHMENTS APPROVED BY LEGISLATURES.  /17/ 

APART FROM THESE ISOLATED USES OF THE WORD "UNNECESSARY," NOTHING IN
THE CASES SUGGESTS THAT IT IS FOR THE COURTS TO MAKE A DETERMINATION OF
THE EFFICACY OF PUNISHMENTS.  THE DECISION IN WEEMS V. UNITED STATES,
SUPRA, IS NOT TO THE CONTRARY.  IN WEEMS THE COURT HELD THAT FOR THE
CRIME OF FALSIFYING PUBLIC DOCUMENTS, THE PUNISHMENT IMPOSED UNDER THE
PHILIPPINE CODE OF 15 YEARS' IMPRISONMENT AT HARD LABOR UNDER SHACKLES,
FOLLOWED BY PERPETUAL SURVEILLANCE, LOSS OF VOTING RIGHTS, LOSS OF THE
RIGHT TO HOLD PUBLIC OFFICE, AND LOSS OF RIGHT TO CHANGE DOMICILE
FREELY, WAS VIOLATIVE OF THE EIGHTH AMENDMENT.  THE CASE IS GENERALLY
REGARDED AS HOLDING THAT A PUNISHMENT MAY BE EXCESSIVELY CRUEL WITHIN
THE MEANING OF THE EIGHTH AMENDMENT BECAUSE IT IS GROSSLY OUT OF
PROPORTION TO THE SEVERITY OF THE CRIME; /18/  SOME VIEW THE DECISION
OF THE COURT PRIMARILY AS A REACTION TO THE MODE OF THE PUNISHMENT
ITSELF.  /19/  UNDER ANY CHARACTERIZATION OF THE HOLDING, IT IS READILY
APPARENT THAT THE DECISION GREW OUT OF THE COURT'S OVERWHELMING
ABHORRENCE OF THE IMPOSITION OF THE PARTICULAR PENALTY FOR THE
PARTICULAR CRIME; IT WAS MAKING AN ESSENTIALLY MORAL JUDGMENT, NOT A
DISPASSIONATE ASSESSMENT OF THE NEED FOR THE PENALTY.  THE COURT
SPECIFICALLY DISCLAIMED "THE RIGHT TO ASSERT A JUDGMENT AGAINST THAT OF
THE LEGISLATURE OF THE EXPEDIENCY OF THE LAWS . . . " 217 U.S.,AT 378. 
THUS, APART FROM THE FACT THAT THE COURT IN WEEMS CONCERNED ITSELF WITH
THE CRIME COMMITTED AS WELL AS THE PUNISHMENT IMPOSED, THE CASE MARKS
NO DEPARTURE FROM THE LARGELY UNARTICULABLE STANDARD OF EXTREME
CRUELTY.  HOWEVER INTRACTABLE THAT STANDARD MAY BE, THAT IS WHAT THE
EIGHTH AMENDMENT IS ALL ABOUT.  THE CONSTITUTIONAL PROVISION IS NOT
ADDRESSED TO SOCIAL UTILITY AND DOES NOT COMMAND THAT ENLIGHTENED
PRINCIPLES OF PENOLOGY ALWAYS BE FOLLOWED. 

BY PURSUING THE NECESSITY APPROACH, IT BECOMES EVEN MORE APPARENT
THAT IT INVOLVES MATTERS OUTSIDE THE PURVIEW OF THE EIGHTH AMENDMENT. 
TWO OF THE SEVERAL AIMS OF PUNISHMENT ARE GENERALLY ASSOCIATED WITH
CAPITAL PUNISHMENT-- RETRIBUTION AND DETERRENCE.  IT IS ARGUED THAT
RETRIBUTION CAN BE DISCOUNTED BECAUSE THAT, AFTER ALL, IS WHAT THE
EIGHTH AMENDMENT SEEKS TO ELIMINATE.  THERE IS NO AUTHORITY SUGGESTING
THAT THE EIGHTH AMENDMENT WAS INTENDED TO PURGE THE LAW OF ITS
RETRIBUTIVE ELEMENTS, AND THE COURT HAS CONSISTENTLY ASSUMED THAT
RETRIBUTION IS A LEGITIMATE DIMENSION OF THE PUNISHMENT OF CRIMES.  SEE
WILLIAMS V. NEW YORK, 337 U.S. 241, 248 (1949); UNITED STATES V.
LOVETT, 328 U.S. 303, 324 (1946) (FRANKFURTER, J., CONCURRING). 
FURTHERMORE, RESPONSIBLE LEGAL THINKERS OF WIDELY VARYING PERSUASIONS
HAVE DEBATED THE SOCIOLOGICAL AND PHILOSOPHICAL ASPECTS OF THE
RETRIBUTION QUESTION FOR GENERATIONS, NEITHER SIDE BEING ABLE TO
CONVINCE THE OTHER.  /20/  IT WOULD BE READING A GREAT DEAL INTO THE
EIGHTH AMENDMENT TO HOLD THAT THE PUNISHMENTS AUTHORIZED BY
LEGISLATURES CANNOT CONSTITUTIONALLY REFLECT A RETRIBUTIVE PURPOSE. 

THE LESS ESOTERIC BUT NO LESS CONTROVERSIAL QUESTION IS WHETHER THE
DEATH PENALTY ACTS AS A SUPERIOR DETERRENT.  THOSE FAVORING ABOLITION
FIND NO EVIDENCE THAT IT DOES.  /21/  THOSE FAVORING RETENTION START
FROM THE INTUITIVE NOTION THAT CAPITAL PUNISHMENT SHOULD ACT AS THE
MOST EFFECTIVE DETERRENT AND NOTE THAT THERE IS NO CONVINCING EVIDENCE
THAT IT DOES NOT.  /22/  ESCAPE FROM THIS EMPIRICAL STALEMATE IS SOUGHT
BY PLACING THE BURDEN OF PROOF ON THE STATES AND CONCLUDING THAT THEY
HAVE FAILED TO DEMONSTRATE THAT CAPITAL PUNISHMENT IS A MORE EFFECTIVE
DETERRENT THAN LIFE IMPRISONMENT.  NUMEROUS JUSTIFICATIONS HAVE BEEN
ADVANCED FOR SHIFTING THE BURDEN, AND THEY ARE NOT WITHOUT THEIR
RHETORICAL APPEAL.  HOWEVER, THESE ARGUMENTS ARE NOT DESCENDED FROM
ESTABLISHED CONSTITUTIONAL PRINCIPLES, BUT ARE BORN OF THE URGE TO
BYPASS AN UNRESOLVED FACTUAL QUESTION.  /23/  COMPARATIVE DETERRENCE IS
NOT A MATTER THAT LENDS ITSELF TO PRECISE MEASUREMENT; TO SHIFT THE
BIRDEN TO THE STATES IS TO PROVIDE AN ILLUSORY SOLUTION TO AN
ENORMOUSLY COMPLEX PROBLEM.  IF IT WERE PROPER TO PUT THE STATES TO THE
TEST OF DEMONSTRATING THE DETERRENT VALUE OF CAPITAL PUNISHMENT, WE
COULD JUST AS WELL ASK THEM TO PROVE THE NEED FOR LIFE IMPRISONMENT OR
ANY OTHER PUNISHMENT.  YET I KNOW OF NO CONVINCING EVIDENCE THAT LIFE
IMPRISONMENT IS A MORE EFFECTIVE DETERRENT THAN 20 YEARS' IMPRISONMENT,
OR EVEN THAT A $10 PARKING TICKET IS A MORE EFFECTIVE DETERRENT THAN A
$5 PARKING TICKET.  IN FACT, THERE ARE SOME WHO GO SO FAR AS TO
CHALLENGE THE NOTION THAT ANY PUNISHMENTS DETER CRIME.  /24/  IF THE
STATES ARE UNABLE TO ADDUCE CONVINCING PROOF REBUTTING SUCH ASSERTIONS,
DOES IT THEN FOLLOW THAT ALL PUNISHMENTS ARE SUSPECT AS BEING "CRUEL
AND UNUSUAL" WITHIN THE MEANING OF THE CONSTITUTION?  ON THE CONTRARY,
I SUBMIT THAT THE QUESTIONS RAISED BY THE NECESSITY APPROACH ARE BEYOND
THE PALE OF JUDICIAL INQUIRY UNDER THE EIGHTH AMENDMENT. 

        V 

TODAY THE COURT HAS NOT RULED THAT CAPITAL PUNISHMENT IS PER SE
VIOLATIVE OF THE EIGHTH AMENDMENT; NOR HAS IT RULED THAT THE PUNISHMENT
IS BARRED FOR ANY PARTICULAR CLASS OR CLASSES OF CRIMES.  THE
SUBSTANTIALLY SIMILAR CONCURRING OPINIONS OF MR. JUSTICE STEWART AND
MR. JUSTICE WHITE, WHICH ARE NECESSARY TO SUPPORT THE JUDGMENT SETTING
ASIDE PETITIONERS' SENTENCES, STOP SHORT OF REACHING THE ULTIMATE
QUESTION.  THE ACTUAL SCOPE OF THE COURT'S RULING, WHICH I TAKE TO BE
EMBODIED IN THESE CONCURRING OPINIONS, IS NOT ENTIRELY CLEAR.  THIS
MUCH, HOWEVER, SEEMS APPARENT:  IF THE LEGISLATURES ARE TO CONTINUE TO
AUTHORIZE CAPITAL PUNISHMENT FOR SOME CRIMES, JURIES AND JUDGES CAN NO
LONGER BE PERMITTED TO MAKE THE SENTENCING DETERMINATION IN THE SAME
MANNER THEY HAVE IN THE PAST.  /25/  THIS APPROACH-- NOT URGED IN ORAL
ARGUMENTS OR BRIEFS-- MISCONCEIVES THE NATURE OF THE CONSTITUTIONAL
COMMAND AGAINST "CRUEL AND UNUSUAL PUNISHMENTS," DISREGARDS CONTROLLING
CASE LAW, AND DEMANDS A RIGIDITY IN CAPITAL CASES WHICH, IF POSSIBLE OF
ACHIEVEMENT, CANNOT BE REGARDED AS A WELCOME CHANGE.  INDEED THE
CONTRARY SEEMS TO BE THE CASE. 

AS I HAVE EARLIER STATED, THE EIGHTH AMENDMENT FORBIDS THE
IMPOSITION OF PUNISHMENTS THAT ARE SO CRUEL AND INHUMANE AS TO VIOLATE
SOCIETY'S STANDARDS OF CIVILIZED CONDUCT.  THE AMENDMENT DOES NOT
PROHIBIT ALL PUNISHMENTS THE STATES ARE UNABLE TO PROVE NECESSARY TO
DETER OR CONTROL CRIME.  THE AMENDMENT IS NOT CONCERNED WITH THE
PROCESS BY WHICH A STATE DETERMINES THAT A PARTICULAR PUNISHMENT IS TO
BE IMPOSED IN A PARTICULAR CASE.  AND THE AMENDMENT MOST ASSUREDLY DOES
NOT SPEAK TO THE POWER OF LEGISLATURES TO CONFER SENTENCING DISCRETION
ON JURIES, RATHER THAN TO FIX ALL SENTENCES BY STATUTE. 

THE CRITICAL FACTOR IN THE CONCURRING OPINIONS OF BOTH MR. JUSTICE
STEWART AND MR. JUSTICE WHITE IS THE INFREQUENCY WITH WHICH THE PENALTY
IS IMPOSED.  THIS FACTOR IS TAKEN NOT AS EVIDENCE OF SOCIETY'S
ABHORRENCE OF CAPITAL PUNISHMENT-- THE INFERENCE THAT PETITIONERS WOULD
HAVE THE COURT DRAW-- BUT AS THE EARMARK OF A DETERIORATED SYSTEM OF
SENTENCING.  IT IS CONCLUDED THAT PETITIONERS' SENTENCES MUST BE SET
ASIDE, NOT BECAUSE THE PUNISHMENT IS IMPERMISSIBILY CRUEL, BUT BECAUSE
JURIES AND JUDGES HAVE FAILED TO EXERCISE THEIR SENTENCING DISCRETION
IN ACCEPTABLE FASHION. 

TO BE SURE, THERE IS A RECITATION CAST IN EIGHTH AMENDMENT TERMS:
PETITIONERS' SENTENCES ARE "CRUEL" BECAUSE THEY EXCEED THAT WHICH THE
LEGISLATURES HAVE DEEMED NECESSARY FOR ALL CASES; /26/  PETITIONERS'
SENTENCES ARE "UNUSUAL" BECAUSE THEY EXCEED THAT WHICH IS IMPOSED IN
MOST CASES.  /27/  THIS APPLICATION OF THE WORDS OF THE EIGHTH
AMENDMENT SUGGESTS THAT CAPITAL PUNISHMENT CAN BE MADE TO SATISFY
EIGHTH AMENDMENT VALUES IF ITS RATE OF IMPOSITION IS SOMEHOW
MULTIPLIED; IT SEEMINGLY FOLLOWS THAT THE FLEXIBLE SENTENCING SYSTEM
CREATED BY THE LEGISLATURES, AND CARRIED OUT BY JURIES AND JUDGES, HAS
YIELDED MORE MERCY THAN THE EIGHTH AMENDMENT CAN STAND.  THE
IMPLICATIONS OF THIS APPROACH ARE MILDLY IRONICAL.  FOR EXAMPLE, BY
THIS MEASURE OF THE EIGHTH AMENDMENT, THE ELIMINATION OF DEATH
QUALIFIED JURIES IN WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968), CAN
ONLY BE SEEN IN RETROSPECT AS A SETBACK TO "THE EVOLVING STANDARDS OF
DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY."  TROP V. DULLES,
356 U.S.,AT 101. 

THIS NOVEL FORMULATION OF EIGHTH AMENDMENT PRINCIPLES-- ALBEIT
NECESSARY TO SATISFY THE TERMS OF OUR LIMITED GRANT OF CERTIORARI--
DOES NOT LIE AT THE HEART OF THESE CONCURRING OPINIONS.  THE DECISIVE
GRIEVANCE OF THE OPINIONS-- NOT TRANSLATED INTO EIGHTH AMENDMENT TERMS-
IS THAT THE PRESENT SYSTEM OF DISCRETIONARY SENTENCING IN CAPITAL
CASES HAS FAILED TO PRODUCE EVENHANDED JUSTICE; THE PROBLEM IS NOT THAT
TOO FEW HAVE BEEN SENTENCED TO DIE, BUT THAT THE SELECTION PROCESS HAS
FOLLOWED NO RATIONAL PATTERN.  /28/ ##HC399 THIS CLAIM OF ARBITRARINESS
IS NOT ONLY LACKING IN EMPIRICAL SUPPORT, /29/  BUT ALSO IT MANIFESTLY
FAILS TO ESTABLISH THAT THE DEATH PENALTY IS A "CRUEL AND UNUSUAL"
PUNISHMENT.  THE EIGHTH AMENDMENT WAS INCLUDED IN THE BILL OF RIGHTS TO
ASSURE THAT CERTAIN TYPES OF PUNISHMENTS WOULD NEVER BE IMPOSED, NOT TO
CHANNELIZE THE SENTENCING PROCESS.  THE APPROACH OF THESE CONCURRING
OPINIONS HAS NO ANTECEDENT IN THE EIGHTH AMENDMENT CASES.  IT IS
ESSENTIALLY AND EXCLUSIVELY A PROCEDURAL DUE PROCESS ARGUMENT.     THIS
GROUND OF DECISION IS PLAINLY FORECLOSED AS WELL AS MISPLACED.  ONLY
ONE YEAR AGO, IN MCGAUTHA V. CALIFORNIA, THE COURT UPHELD THE
PREVAILING SYSTEM OF SENTENCING IN CAPITAL CASES.  THE COURT
CONCLUDED: 

     "IN LIGHT OF HISTORY, EXPERIENCE, AND THE PRESENT LIMITATIONS

  OF HUMAN KNOWLEDGE, WE FIND IT QUITE IMPOSSIBLE TO SAY THAT

  COMMITTING TO THE UNTRAMMELED DISCRETION OF THE JURY THE POWER TO

  PRONOUNCE LIFE OR DEATH IN CAPITAL CASES IS OFFENSIVE TO ANYTHING

IN THE CONSTITUTION.  402 U.S.,AT 207. 

IN REACHING THIS DECISION, THE COURT HAD THE BENEFIT OF EXTENSIVE
BRIEFING, FULL ORAL ARGUMENT, AND SIX MONTHS OF CAREFUL DELIBERATIONS. 
THE COURT'S LABORS ARE DOCUMENTED BY 130 PAGES OF OPINIONS IN THE
UNITED STATES REPORTS.  ALL OF THE ARGUMENTS AND FACTUAL CONTENTIONS
ACCEPTED IN THE CONCURRING OPINIONS TODAY WERE CONSIDERED AND REJECTED
BY THE COURT ONE YEAR AGO.  MCGAUTHA WAS AN EXCEEDINGLY DIFFICULT CASE,
AND REASONABLE MEN COULD FAIRLY DISAGREE AS TO THE RESULT.  BUT THE
COURT ENTERED ITS JUDGMENT, AND IF STARE DECISIS MEANS ANYTHING, THAT
DECISION SHOULD BE REGARDED AS A CONTROLLING PRONOUNCEMENT OF LAW. 

ALTHOUGH THE COURT'S DECISION IN MCCAUTHA WAS TECHNICALLY CONFINED
TO THE DICTATES OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
RATHER THAN THE EIGHTH AMENDMENT AS MADE APPLICABLE TO THE STATES
THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, IT WOULD BE
DISINGENUOUS TO SUGGEST THAT TODAY'S RULING HAS DONE ANYTHING LESS THAN
OVERRULE MCGAUTHA IN THE GUISE OF AN EIGHTH AMENDMENT ADJUDICATION.  IT
MAY BE THOUGHT APPROPRIATE TO SUBORDINATE PRINCIPLES OF STARE DECISES
WHERE THE SUBJECT IS AS SENSITIVE AS CAPITAL PUNISHMENT AND THE STAKES
ARE SO HIGH, BUT THESE EXTERNAL CONSIDERATIONS WERE NO LESS WEIGHTY
LAST YEAR.  THIS PATTERN OF DECISIONMAKING WILL DO LITTLE TO INSPIRE
CONFIDENCE IN THE STABILITY OF THE LAW. 

WHILE I WOULD NOT UNDERTAKE TO MAKE A DEFINITIVE STATEMENT AS TO THE
PARAMETERS OF THE COURT'S RULING, IT IS CLEAR THAT IF STATE
LEGISLATURES AND THE CONGRESS WISH TO MAINTAIN THE AVAILABILITY OF
CAPITAL PUNISHMENT, SIGNIFICANT STATUTORY CHANGES WILL HAVE TO BE
MADE.  SINCE THE TWO PIVOTAL CONCURRING OPINIONS TURN ON THE ASSUMPTION
THAT THE PUNISHMENT OF DEATH IS NOW METED OUT IN A RANDOM AND
UNPREDICTABLE MANNER, LEGISLATIVE BODIES MAY SEEK TO BRING THEIR LAWS
INTO COMPLIANCE WITH THE COURT'S RULING BY PROVIDING STANDARDS FOR
JURIES AND JUDGES TO FOLLOW IN DETERMINING THE SENTENCE IN CAPITAL
CASES OR BY MORE NARROWLY DEFINING THE CRIMES FOR WHICH THE PENALTY IS
TO BE IMPOSED.  /30/  IF SUCH STANDARDS CAN BE DEVISED OR THE CRIMES
MORE METICULOUSLY DEFINED, THE RESULT CANNOT BE DETRIMENTAL.  HOWEVER,
MR. JUSTICE HARLAN'S OPINION FOR THE COURT IN MCGAUTHA CONVINCINGLY
DEMONSTRATES THAT ALL PAST EFFORTS "TO IDENTIFY BEFORE THE FACT" THE
CASES IN WHICH THE PENALTY IS TO BE IMPOSED HAVE BEEN "UNIFORMLY
UNSUCCESSFUL."  402 U.S.,AT 197.  ONE PROBLEM IS THAT "THE FACTORS
WHICH DETERMINE WHETHER THE SENTENCE OF DEATH IS THE APPROPRIATE
PENALTY IN PARTICULAR CASES ARE TOO COMPLEX TO BE COMPRESSED WITHIN THE
LIMITS OF A SIMPLE FORMULA . . . . "  REPORT OF ROYAL COMMISSION ON
CAPITAL PUNISHMENT, 1949-1953, CMD.  8932, PARA. 498, P. 174 (1953). 
AS THE COURT STATED IN MCGAUTHA, "(THE INFINITE VARIETY OF CASES AND
FACETS TO EACH CASE WOULD MAKE GENERAL STANDARDS EITHER MEANINGLESS
'BOILERPLATE" OR A STATEMENT OF THE OBVIOUS THAT NO JURY WOULD NEED." 
402 U.S.,AT 208.  BUT EVEN ASSUMING THAT SUITABLE GUIDELINES CAN BE
ESTABLISHED, THERE IS NO ASSURANCE THAT SENTENCING PATTERNS WILL CHANGE
SO LONG AS JURIES ARE POSSESSED OF THE POWER TO DETERMINE THE SENTENCE
OR TO BRING IN A VERDICT OF GUILT ON A CHARGE CARRYING A LESSER
SENTENCE; JURIES HAVE NOT BEEN INHIBITED IN THE EXERCISE OF THESE
POWERS IN THE PAST.  THUS, UNLESS THE COURT IN MCGAUTHA MISJUDGED THE
EXPERIENCE OF HISTORY, THERE IS LITTLE REASON TO BELIEVE THAT
SENTENCING STANDARDS IN ANY FORM WILL SUBSTANTIALLY ALTER THE
DISCRETIONARY CHARACTER OF THE PREVAILING SYSTEM OF SENTENCING IN
CAPITAL CASES.  THAT SYSTEM MAY FALL SHORT OF PERFECTION, BUT IT IS YET
TO BE SHOWN THAT A DIFFERENT SYSTEM WOULD PRODUCE MORE SATISFACTORY
RESULTS. 

REAL CHANGE COULD CLEARLY BE BROUGHT ABOUT IF LEGISLATURES PROVIDED
MANDATORY DEATH SENTENCES IN SUCH A WAY AS TO DENY JURIES THE
OPPORTUNITY TO BRING IN A VERDICT ON A LESSER CHARGE; UNDER SUCH A
SYSTEM, THE DEATH SENTENCE COULD ONLY BE AVOIDED BY A VERDICT OF
ACQUITTAL.  IF THIS IS THE ONLY ALTERNATIVE THAT THE LEGISLATURES CAN
SAFELY PURSUE UNDER TODAY'S RULING, I WOULD HAVE PREFERRED THAT THE
COURT OPT FOR TOTAL ABOLITION. 

IT SEEMS REMARKABLE TO ME THAT WITH OUR BASIC TRUST IN LAY JURORS AS
THE KEYSTONE IN OUR SYSTEM OF CRIMINAL JUSTICE, IT SHOULD NOW BE
SUGGESTED THAT WE TAKE THE MOST SENSITIVE AND IMPORTANT OF ALL
DECISIONS AWAY FROM THEM.  I COULD MORE EASILY BE PERSUADED THAT
MANDATORY SENTENCES OF DEATH, WITHOUT THE INTERVENING AND AMELIORATING
IMPACT OF LAY JURORS, ARE SO ARBITRARY AND DOCTRINAIRE THAT THEY
VIOLATE THE CONSTITUTION.  THE VERY INFREQUENCY OF DEATH PENALTIES
IMPOSED BY JURORS ATTESTS THEIR CAUTIOUS AND DISCRIMINATING RESERVATION
OF THAT PENALTY FOR THE MOST EXTREME CASES.  I HAD THOUGHT THAT NOTHING
WAS CLEARER IN HISTORY, AS WE NOTED IN MCGAUTHA ONE YEAR AGO, THAN THE
AMERICAN ABHORRENCE OF "THE COMMON-LAW RULE IMPOSING A MANDATORY DEATH
SENTENCE ON ALL CONVICTED MURDERERS."  402 U.S.,AT 198.  AS THE
CONCURRING OPINION OF MR. JUSTICE MARSHALL SHOWS, ANTE, AT 339, THE
19TH CENTURY MOVEMENT AWAY FROM MANDATORY DEATH SENTENCES MARKED AN
ENLIGHTENED INTRODUCTION OF FLEXIBILITY INTO THE SENTENCING PROCESS. 
IT RECOGNIZED THAT INDIVIDUAL CULPABILITY IS NOT ALWAYS MEASURED BY THE
CATEGORY OF THE CRIME COMMITTED.  THIS CHANGE IN SENTENCING PRACTICE
WAS GREETED BY THE COURT AS A HUMANIZING DEVELOPMENT.  SEE WINSTON V.
UNITED STATES, 172 U.S. 303 (1899); CF. CALTON V. UTAH, 130 U.S. 83
(1889).  SEE ALSO ANDRES V. UNITED STATES, 333 U.S. 740, 753 (1948)
(FRANKFURTHER, J., CONCURRING).  I DO NOT SEE HOW THIS HISTORY CAN BE
IGNORED AND HOW IT CAN BE SUGGESTED THAT THE EIGHTH AMENDMENT DEMANDS
THE ELIMINATION OF THE MOST SENSITIVE FEATURE OF THE SENTENCING
SYSTEM. 

AS A GENERAL MATTER, THE EVOLUTION OF PENAL CONCEPTS IN THIS COUNTRY
HAS NOT BEEN MARKED BY GREAT PROGRESS, NOR HAVE THE RESULTS UP TO NOW
BEEN CROWNED WITH SIGNIFICANT SUCCESS.  IF ANYWHERE IN THE WHOLE
SPECTRUM OF CRIMINAL JUSTICE FRESH IDEAS DESERVE SOBER ANALYSIS, THE
SENTENCING AND CORRECTIONAL AREA RANKS HIGH ON THE LIST.  BUT IT HAS
BEEN WIDELY ACCEPTED THAT MANDATORY SENTENCES FOR CRIMES DO NOT BEST
SERVE THE ENDS OF THE CRIMINAL JUSTICE SYSTEM.  NOW, AFTER THE LONG
PROCESS OF DRAWING AWAY FROM THE BLIND IMPOSITION OF UNIFORM SENTENCES
FOR EVERY PERSON CONVICTED OF A PARTICULAR OFFENSE, WE ARE CONFRONTED
WITH AN ARGUMENT PERHAPS IMPLYING THAT ONLY THE LEGISLATURES MAY
DETERMINE THAT A SENTENCE OF DEATH IS APPROPRIATE, WITHOUT THE
INTERVENING EVALUATION OF JURORS OR JUDGES.  THIS APPROACH THREATENS TO
TURN BACK THE PROGRESS OF PENAL REFORM, WHICH HAS MOVED UNTIL RECENTLY
AT TOO SLOW A RATE TO ABSORB SIGNIFICANT SETBACKS. 

        VI 

SINCE THERE IS NO MAJORITY OF THE COURT ON THE ULTIMATE ISSUE
PRESENTED IN THESE CASES, THE FUTURE OF CAPITAL PUNISHMENT IN THIS
COUNTRY HAS BEEN LEFT IN AN UNCERTAIN LIMBO.  RATHER THAN PROVIDING A
FINAL AND UNAMBIGUOUS ANSWER ON THE BASIC CONSTITUTIONAL QUESTION, THE
COLLECTIVE IMPACT OF THE MAJORITY'S RULING IS TO DEMAND AN UNDETERMINED
MEASURE OF CHANGE FROM THE VARIOUS STATE LEGISLATURES AND THE
CONGRESS.  WHILE I CANNOT ENDORSE THE PROCESS OF DECISIONMAKING THAT
HAS YIELDED TODAY'S RESULT AND THE RESTRAINTS THAT THAT RESULT IMPOSES
ON LEGISLATIVE ACTION, I AM NOT ALTOGETHER DISPLEASED THAT LEGISLATIVE
BODIES HAVE BEEN GIVEN THE OPPORTUNITY, AND INDEED UNAVOIDABLE
RESPONSIBILITY, TO MAKE A THOROUGH RE-EVALUATION OF THE ENTIRE SUBJECT
OF CAPITAL PUNISHMENT.  IF TODAY'S OPINIONS DEMONSTRATE NOTHING ELSE,
THEY STARKLY SHOW THAT THIS IS AN AREA WHERE LEGISLATURES CAN ACT FAR
MORE EFFECTIVELY THAN COURTS. 

THE LEGISLATURES ARE FREE TO ELIMINATE CAPITAL PUNISHMENT FOR
SPECIFIC CRIMES OR TO CARVE OUT LIMITED EXCEPTIONS TO A GENERAL
ABOLITION OF THE PENALTY, WITHOUT ADHERENCE TO THE CONCEPTUAL
STRICTURES OF THE EIGHTH AMENDMENT.  THE LEGISLATURES CAN AND SHOULD
MAKE AN ASSESSMENT OF THE DETERRENT INFLUENCE OF CAPITAL PUNISHMENT,
BOTH GENERALLY AND AS AFFECTING THE COMMISSION OF SPECIFIC TYPES OF
CRIMES.  IF LEGISLATURES COME TO DOUBT THE EFFICACY OF CAPITAL
PUNISHMENT, THEY CAN ABOLISH IT, EITHER COMPLETELY OR ON A SELECTIVE
BASIS.  IF NEW EVIDENCE PERSUADES THEM THAT THEY HAVE ACTED UNWISELY,
THEY CAN REVERSE THEIR FIELD AND REINSTATE THE PENALTY TO THE EXTENT IT
IS THOUGHT WARRANTED.  AN EIGHTH AMENDMENT RULING BY JUDGES CANNOT BE
MADE WITH SUCH FLEXIBILITY OR DISCRIMINATING PRECISION. 

THE WORLD-WIDE TREND TOWARD LIMITING THE USE OF CAPITAL PUNISHMENT,
A PHENOMENON TO WHICH WE HAVE BEEN URGED TO GIVE GREAT WEIGHT, HARDLY
POINTS THE WAY TO A JUDICIAL SOLUTION IN THIS COUNTRY UNDER A WRITTEN
CONSTITUTION.  RATHER, THE CHANGE HAS GENERALLY COME ABOUT THROUGH
LEGISLATIVE ACTION, OFTEN ON A TRIAL BASIS AND WITH THE RETENTION OF
THE PENALTY FOR CERTAIN LIMITED CLASSES OF CRIMES.  /31/  VIRTUALLY
NOWHERE HAS CHANGE BEEN WROUGHT BY SO CRUDE A TOOL AS THE EIGHTH
AMENDMENT.  THE COMPLETE AND UNCONDITIONAL ABOLITION OF CAPITAL
PUNISHMENT IN THIS COUNTRY BY JUDICIAL FIAT WOULD HAVE UNDERMINED THE
CAREFUL PROGRESS OF THE LEGISLATIVE TREND AND FORECLOSED FURTHER
INQUIRY ON MANY AS YET UNANSWERED QUESTIONS IN THIS AREA. 

QUITE APART FROM THE LIMITATIONS OF THE EIGHTH AMENDMENT ITSELF, THE
PREFERENCE FOR LEGISLATIVE ACTION IS JUSTIFIED BY THE INABILITY OF THE
COURTS TO PARTICIPATE IN THE DEBATE AT THE LEVEL WHERE THE CONTROVERSY
IS FOCUSED.  THE CASE AGAINST CAPITAL PUNISHMENT IS NOT THE PRODUCT OF
LEGAL DIALECTIC, BUT RESTS PRIMARILY ON FACTUAL CLAIMS, THE TRUTH OF
WHICH CANNOT BE TESTED BY CONVENTIONAL JUDICIAL PROCESSES.  THE FIVE
OPINIONS IN SUPPORT OF THE JUDGMENTS DIFFER IN MANY RESPECTS, BUT THEY
SHARE A WILLINGNESS TO MAKE SWEEPING FACTUAL ASSERTIONS, UNSUPPORTED BY
EMPIRICAL DATA, CONCERNING THE MANNER OF IMPOSITION AND EFFECTIVENESS
OF CAPITAL PUNISHMENT IN THIS COUNTRY.  LEGISLATURES WILL HAVE THE
OPPORTUNITY TO MAKE A MORE PENETRATING STUDY OF THESE CLAIMS WITH THE
FAMILIAR AND EFFECTIVE TOOLS AVAILABLE TO THEM AS THEY ARE NOT TO US. 

THE HIGHEST JUDICIAL DUTY IS TO RECOGNIZE THE LIMITS ON JUDICIAL
POWER AND TO PERMIT THE DEMOCRATIC PROCESSES TO DEAL WITH MATTERS
FALLING OUTSIDE OF THOSE LIMITS.  THE "HYDRAULIC PRESSUESS)"  /32/
THAT HOLMES SPOKE OF AS BEING GENERATED BY CASES OF GREAT IMPORT HAVE
PROPELLED THE COURT TO GO BEYOND THE LIMITS OF JUDICIAL POWER, WHILE
FORTUNATELY LEAVING SOME ROOM FOR LEGISLATIVE JUDGMENT. 

/1/  SEE N. 25, INFRA. 

/2/  SEE GRANUCCI, "NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED:"
THE ORIGINAL MEANING, 57 CALIF.L.REV.  839, 852-860 (1969).  EARLIER
DRAFTS OF THE BILL OF RIGHTS USED THE PHRASE "CRUEL AND ILLEGAL."  IT
IS THOUGHT THAT THE CHANGE TO THE "CRUEL AND UNUSUAL" WORDING WAS
INADVERTENT AND NOT INTENDED TO WORK ANY CHANGE IN MEANING.  THE
HISTORICAL BACKGROUND OF THE ENGLISH BILL OF RIGHTS IS SET FORTH IN THE
OPINION OF MR. JUSTICE MARSHALL, ANTE, AT 316-318. 

IT IS INTIMATED IN THE OPINION OF MR. JUSTICE DOUGLAS, ANTE, AT 242
245, THAT THE TERM "UNUSUAL" WAS INCLUDED IN THE ENGLISH BILL OF RIGHTS
AS A PROTEST AGAINST THE DISCRIMINATORY APPLICATION OF PUNISHMENTS TO
MINORITIES.  HOWEVER, THE HISTORY OF CAPITAL PUNISHMENT IN ENGLAND
DRAMATICALLY REVEALS THAT NO PREMIUM WAS PLACED ON EQUAL JUSTICE FOR
ALL, EITHER BEFORE OR AFTER THE BILL OF RIGHTS OF 1689.  FROM THE TIME
OF RICHARD I UNTIL 1826 THE DEATH PENALTY WAS AUTHORIZED IN ENGLAND FOR
TREASON AND ALL FELONIES EXCEPT LARCENY AND MAYHEM WITH THE FURTHER
EXCEPTION THAT PERSONS ENTITLED TO BENEFIT OF CLERGY WERE SUBJECT TO NO
PENALTY OR AT MOST A VERY LENIENT PENALTY UPON THE COMMISSION OF A
FELONY.  BENEFIT OF CLERGY GREW OUT OF THE EXEMPTION OF THE CLERGY FROM
THE JURISDICTION OF THE LAY COURTS.  THE EXCEMPTION EXPANDED TO INCLUDE
ASSISTANTS TO CLERGYMEN, AND BY 1689, ANY MALE WHO COULD READ. 
ALTHOUGH BY 1689 NUMEROUS FELONIES HAD BEEN DEEMED "NONCLERGYABLE," THE
DISPARITY IN PUNISHMENTS IMPOSED ON THE EDUCATED AND UNEDUCATED
REMAINED FOR MOST FELONIES UNTIL THE EARLY 18TH CENTURY.  SEE 1
J.STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 458 ET SEQ. (1883). 

/3/ SEE 2 J.ELLIOT'S DEBATES 111 (2D ED. 1876); 3 ID.,AT 447-448,
451-452. 

/4/  BUT SEE BLUESTONE & MCGAHEE, REACTION TO EXTREME STRESS:
IMPENDING DEATH BY EXECUTION, 119 AM.J.PSYCHIATRY 393 (1962). 

/5/  SEE 2 J.STORY, ON THE CONSTITUTION 1903 (5TH ED. 1891); 1
T.COOLEY, CONSTITUTIONAL LIMITATIONS 694 (8TH ED. 1927).  SEE ALSO
JOSEPH STORY ON CAPITAL PUNISHMENT (ED. BY J. HOGAN), 43 CALIF.L.REV. 
76 (1955). 

/6/  BRIEF FOR PETITIONER IN AIKENS V. CALIFORNIA, NO. 68-5027, P.
19 (CERT. DISMISSED, 406 U.S. 813 (1972)).  SEE POST, AT 443 N. 38. 
THIS, PLAINLY, WAS THE FOUNDATION OF MR. JUSTICE BLACK'S STRONG VIEWS
ON THIS SUBJECT EXPRESSED MOST RECENTLY IN MCGAUTHA V. CALIFORNIA, 402
U.S. 183, 226 (1971) (SEPARATE OPINION).     /7/  SEE DEPARTMENT OF
JUSTICE, NATIONAL PRISONER STATISTICS NO. 46, CAPITAL PUNISHMENT 1930
1970, P. 50 (AUG. 1971).  SINCE THE PUBLICATION OF THE DEPARTMENT OF
JUSTICE REPORT, CAPITAL PUNISHMENT HAS BEEN JUDICIALLY ABOLISHED IN
CALIFORNIA, PEOPLE V. ANDERSON, 6 CAL.3D 628, 493 P.2D 880, CERT.
DENIED, 406 U.S. 958 (1972).  THE STATES WHERE CAPITAL PUNISHMENT IS NO
LONGER AUTHORIZED ARE ALASKA, CALIFORNIA, HAWAII, IOWA, MAINE,
MICHIGAN, MINNESOTA, OREGON, WEST VIRGINIA, AND WISCONSIN. 

/8/  SEE ACT OF JAN. 2, 1971, PUB. L. 91-644, TIT. IV, SEC. 15, 84
STAT. 1891, 18 U.S.C. 351; ACT OF OCT. 15, 1970, PUB. L. 91-452, TIT.
XI, SEC. 1102(A), 84 STAT. 956, 18 U.S.C. 844(F)(I); ACT OF AUG. 28,
1965, 79 STAT. 580, 18 U.S.C. 1751; ACT OF SEPT. 5, 1961, SEC. 1, 75
STAT. 466, 49 U.S.C. 1472(I).  SEE ALSO OPINION OF MR. JUSTICE
BLACKMUN, POST, AT 412-413. 

/9/  A 1966 POLL INDICATED THAT 42% OF THOSE POLLED FAVORED CAPITAL
PUNISHMENT WHILE 47% OPPOSED IT, AND 11% HAD NO OPINION.  A 1969 POLL
FOUND 51% IN FAVOR, 40% OPPOSED, AND 9% WITH NO OPINION.  SEE ERSKINE,
THE POLLS:  CAPITAL PUNISHMENT, 34 PUBLIC OPINION QUARTERLY 290
(1970). 

/10/  THE JURY PLAYS THE PREDOMINANT ROLE IN SENTENCING IN CAPITAL
CASES IN THIS COUNTRY.  AVAILABLE EVIDENCE INDICATES THAT WHERE THE
JUDGE DETERMINES THE SENTENCE, THE DEATH PENALTY IS IMPOSED WITH A
SLIGHTLY GREATER FREQUENCY THAN WHERE THE JURY MAKES THE
DETERMINATION.  H. KALVEN & H. ZEISEL, THE AMERICAN JURY 436 (1966). 

/11/  IN THE DECADE FROM 1961-1970, AN AVERAGE OF 106 PERSONS PER
YEAR RECEIVED THE DEATH SENTENCE IN THE UNITED STATES, RANGING FROM A
LOW OF 85 IN 1967 TO A HIGH OF 140 IN 1961; 127 PERSONS RECEIVED THE
DEATH SENTENCE IN 1970.  DEPARTMENT OF JUSTICE, NATIONAL PRISONER
STATISTICS NO. 46, CAPITAL PUNISHMENT 1930-1970, P. 9.  SEE ALSO BEDAU,
THE DEATH PENALTY IN AMERICA, 35 FED.PROB.,NO. 2, P. 32 (1971). 
ALTHOUGH ACCURATE FIGURES ARE DIFFICULT TO OBTAIN, IT IS THOUGHT THAT
FROM 15% TO 20% OF THOSE CONVICTED OF MURDER ARE SENTENCED TO DEATH IN
STATES WHERE IT IS AUTHORIZED.  SEE, E.G., MCGEE, CAPITAL PUNISHMENT AS
SEEN BY A CORRECTIONAL ADMINISTRATOR, 28 FED.PROB.,NO. 2, PP. 11, 12
(1964); BEDAU, DEATH SENTENCES IN NEW JERSEY 1907-1960, 19 RUTGERS
L.REV.  1, 30 (1964); FLORIDA DIVISION OF CORRECTIONS, SEVENTH BIENNIAL
REPORT (JULY 1, 1968, TO JUNE 30, 1970) 82 (1970); H. KALVEN & H.
ZEISEL, THE AMERICAN JURY 435-436 (1966).  THE RATE OF IMPOSITION FOR
RAPE AND THE FEW OTHER CRIMES MADE PUNISHABLE BY DEATH IN CERTAIN
STATES IS CONSIDERABLY LOWER.  SEE, E.G., FLORIDA DIVISION OF
CORRECTIONS, SEVENTH BIENNIAL REPORT, SUPRA, AT 83; PARTINGTON, THE
INCIDENCE OF THE DEATH PENALTY FOR RAPE IN VIRGINIA, 22 WASH.& LEE
L.REV.  43-44, 71-73 (1965). 

/12/  COUNSEL FOR PETITIONERS MAKE THE CONCLUSORY STATEMENT THAT
"(THOSE WHO ARE SELECTED TO DIE ARE THE POOR AND POWERLESS, PERSONALLY
UGLY AND SOCIALLY UNACCEPTABLE."  BRIEF FOR PETITIONER IN NO. 68-5027,
P. 51.  HOWEVER, THE SOURCES CITED CONTAIN NO EMPIRICAL FINDINGS TO
UNDERMINE THE GENERAL PREMISE THAT JURIES IMPOSE THE DEATH PENALTY IN
THE MOST EXTREME CASES.  ONE STUDY HAS DISCERNED A STATISTICALLY
NOTICEABLE DIFFERENCE BETWEEN THE RATE OF IMPOSITION ON BLUE COLLAR AND
WHITE COLLAR DEFENDANTS; THE STUDY OTHERWISE CONCLUDES THAT JURIES DO
FOLLOW RATIONAL PATTERNS IN IMPOSING THE SENTENCE OF DEATH.  NOTE, A
STUDY OF THE CALIFORNIA PENALTY JURY IN FIRST-DEGREE-MURDER CASES, 21
STAN.L.REV.  1297 (1969).  SEE ALSO H. KALVEN & H. ZEISEL, THE AMERICAN
JURY 434-449 (1966). 

STATISTICS ARE ALSO CITED TO SHOW THAT THE DEATH PENALTY HAS BEEN
IMPOSED IN A RACIALLY DISCRIMINATORY MANNER.  SUCH STATISTICS SUGGEST,
AT LEAST AS A HISTORICAL MATTER, THAT NEGROES HAVE BEEN SENTENCED TO
DEATH WITH GREATER FREQUENCY THAN WHITES IN SEVERAL STATES,
PARTICULARLY FOR THE CRIME OF INTERRACIAL RAPE.  SEE, E.G., KOENINGER,
CAPITAL PUNISHMENT IN TEXAS, 1924-1968, 15 CRIME & DELIN.  132 (1969);
NOTE, CAPITAL PUNISHMENT IN VIRGINIA, 58 VA.L.REV.  97 (1972).  IF A
STATUTE THAT AUTHORIZES THE DISCRETIONARY IMPOSITION OF A PARTICULAR
PENALTY FOR A PARTICULAR CRIME IS USED PRIMARILY AGAINST DEFENDANTS OF
A CERTAIN RACE, AND IF THE PATTERN OF USE CAN BE FAIRLY EXPLAINED ONLY
BY REFERENCE TO THE RACE OF THE DEFENDANTS, THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT FORBIDS CONTINUED ENFORCEMENT OF THAT
STATUTE IN ITS EXISTING FORM.  CF. YICK WO V. HOPKINS, 118 U.S. 356
(1886); GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960). 

TO ESTABLISH THAT THE STATUTORY AUTHORIZATION FOR A PARTICULAR
PENALTY IS INCONSISTENT WITH THE DICTATES OF THE EQUAL PROTECTION
CLAUSE, IT IS NOT ENOUGH TO SHOW HOW IT WAS APPLIED IN THE DISTANT
PAST.  THE STATISTICS THAT HAVE BEEN REFERRED TO US COVER PERIODS WHEN
NEGROES WERE SYSTEMICALLY EXCLUDED FROM JURY SERVICE AND WHEN RACIAL
SEGREGATION WAS THE OFFICIAL POLICY IN MANY STATES.  DATA OF MORE
RECENT VINTAGE ARE ESSENTIAL.  SEE MAXWELL V. BISHOP, 398 F.2D 138, 148
(CA8 1968), VACATED, 398 U.S. 262 (1970).  WHILE NO STATISTICAL SURVEY
COULD BE EXPECTED TO BRING FORTH ABSOLUTE AND IRREFUTABLE PROOF OF A
DISCRIMINATORY PATTERN OF IMPOSITION, A STRONG SHOWING WOULD HAVE TO BE
MADE, TAKING ALL RELEVANT FACTORS INTO ACCOUNT. 

IT MUST BE NOTED THAT ANY EQUAL PROTECTION CLAIM IS TOTALLY DISTINCT
FROM THE EIGHTH AMENDMENT QUESTION TO WHICH OUR GRANT OF CERTIORARI WAS
LIMITED IN THESE CASES.  EVIDENCE OF A DISCRIMINATORY PATTERN OF
ENFORCEMENT DOES NOT IMPLY THAT ANY USE OF A PARTICULAR PUNISHMENT IS
SO MORALLY REPUGNANT AS TO VIOLATE THE EIGHTH AMENDMENT. 

/13/  JACKSON V. GEORIGA, NO. 69-5030; BRANCH V. TEXAS, NO. 69
5031. 

/14/  RAPE IS PUNISHABLE BY DEATH IN 16 STATES AND IN THE FEDERAL
COURTS WHEN COMMITTED WITHIN THE SPECIAL MARITIME AND TERRITORIAL
JURISDICTION OF THE UNITED STATES.  18 U.S.C. 2031.  THE STATES
AUTHORIZING CAPITAL PUNISHMENT FOR RAPE ARE ALABAMA, ARKANSAS, FLORIDA,
GEORGIA, KENTUCKY, LOUISIANA, MARYLAND, MISSISSIPPI, MISSOURI, NEVADA,
NORTH CAROLINA, OKLAHOMA, SOUTH CAROLINA, TENNESSEE, TEXAS, AND
VIRGINIA. 

/15/  SEE N. 11, SUPRA. 

/16/  1 ANNALS OF CONG. 754 (1789) (REMARKS OF REP. LIVERMORE). 

/17/  PETITIONER FRANCIS HAD BEEN SENTENCED TO BE ELECTROCUTED FOR
THE CRIME OF MURDER.  HE WAS PLACED IN THE ELECTRIC CHAIR, AND THE
EXECUTIONER THREW THE SWITCH.  DUE TO A MECHANICAL DIFFICULTY, DEATH
DID NOT RESULT.  A NEW DEATH WARRANT WAS ISSUED FIXING A SECOND DATE
FOR EXECUTION.  THE COURT HELD THAT THE PROPOSED EXECUTION WOULD NOT
CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT OR DOUBLE JEOPARDY. 

/18/  THERE IS NO SERIOUS CLAIM OF DISPROPORTIONALITY PRESENTED IN
THESE CASES.  MURDER AND FORCIBLE RAPE HAVE ALWAYS BEEN REGARDED AS
AMONG THE MOST SERIOUS CRIMES.  IT CANNOT BE SAID THAT THE PUNISHMENT
OF DEATH IS OUT OF ALL PROPORTION TO THE SEVERITY OF THESE CRIMES. 

THE COURT'S DECISION IN ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962),
CAN BE VIEWED AS AN EXTENSION OF THE DISPROPORTIONALITY DOCTRINE OF THE
EIGHTH AMENDMENT.  THE COURT HELD THAT A STATUTE MAKING IT A CRIME
PUNISHABLE BY IMPRISONMENT TO BE A NARCOTICS ADDICT VIOLATED THE EIGHTH
AMENDMENT.  THE COURT IN EFFECT RULED THAT THE STATUS OF BEING AN
ADDICT IS NOT A CRIMINAL ACT, AND THAT ANY CRIMINAL PUNISHMENT IMPOSED
FOR ADDICTION EXCEEDS THE PENAL POWER OF THE STATES.  THE COURT MADE NO
ANALYSIS OF THE NECESSITY OF IMPRISONMENT AS A MEANS OF CURBING
ADDICTION. 

/19/  SEE PACKER, MAKING THE PUNISHMENT FIT THE CRIME, 77
HARV.L.REV.  1071, 1075 (1964). 

/20/  SEE HART, THE AIMS OF THE CRIMINAL LAW, 23 LAW &
CONTEMP.PROB.  401 (1958); H. PACKER, THE LIMITS OF THE CRIMINAL
SANCTION 37-39 (1968); M. COHEN, REASON AND LAW 41-44 (1950); REPORT OF
ROYAL COMMISSION ON CAPITAL PUNISHMENT, 1949-1953, CMD.  8932, PARA.
52, PP. 17-18 (1953); HART, MURDER AND THE PRINCIPLES OF PUNISHMENT:
ENGLAND AND THE UNITED STATES, 52 NW.U.L.REV.  433, 446-455 (1957); H.
L. A. HART, LAW, LIBERTY AND MORALITY 60-69 (1963). 

/21/  SEE, E.G., SELLIN, HOMICIDES IN RETENTIONIST AND ABOLITIONIST
STATES, IN CAPITAL PUNISHMENT 135 ET SEQ. (T. SELLIN ED. 1967);
SCHUESSLER, THE DETERRENT INFLUENCE OF THE DEATH PENALTY, 284 ANNALS 54
(1952). 

/22/  SEE, E.G., HOOVER, STATEMENTS IN FAVOR OF THE DEATH PENALTY,
IN H. BEDAU, THE DEATH PENALTY IN AMERICA 130 (1967 REV. ED.); ALLEN,
CAPITAL PUNISHMENT:  YOUR PROTECTION AND MINE, IN THE DEATH PENALTY IN
AMERICA, SUPRA, AT 135.  SEE ALSO HART, 52 NW.U.L.REV.SUPRA, AT 457;
BEDAU, THE DEATH PENALTY IN AMERICA, SUPRA, AT 265-266. 

/23/  SEE POWELL V. TEXAS, 392 U.S. 514, 531 (1968) (MARSHALL, J.) 
(PLURALITY OPINION). 

/24/  SEE, E.G., K. MENNINGER, THE CRIME OF PUNISHMENT 206-208
(1968). 

/25/  MUCH IN THE CONCURRING OPINION OF MR. JUSTICE DOUGLAS
SIMILARLY SUGGESTS THAT IT IS THE SENTENCING SYSTEM RATHER THAN THE
PUNISHMENT ITSELF THAT IS CONSTITUTIONALLY INFIRM.  HOWEVER, THE
OPINION ALSO INDICATES THAT IN THE WAKE OF THE COURT'S DECISION IN
MCGAUTHA V. CALIFORNIA, 402 U.S. 183 (1971), THE VALIDITY OF THE
SENTENCING PROCESS IS NO LONGER OPEN TO QUESTION. 

/26/  SEE CONCURRING OPINION OF MR. JUSTICE STEWART, ANTE, AT 309
310; CONCURRING OPINION OF MR. JUSTICE WHITE, ANTE, AT 312. 

/27/  SEE CONCURRING OPINION OF MR. JUSTICE STEWART, ANTE, AT 309
310; CF. CONCURRING OPINION OF MR. JUSTICE WHITE, ANTE, AT 312. 

/28/  THIS POINT IS MORE HEAVILY EMPHASIZED IN THE OPINION OF MR.
JUSTICE STEWART THAN IN THAT OF MR. JUSTICE WHITE.  HOWEVER, SINCE MR.
JUSTICE WHITE ALLOWS FOR STATUTES PROVIDING A MANDATORY DEATH PENALTY
FOR "MORE NARROWLY DEFINED CATEGORIES" OF CRIMES, IT APPEARS THAT HE,
TOO, IS MORE CONCERNED WITH A REGULARIZED SENTENCING PROCESS, THAN WITH
THE AGGREGATE NUMBER OF DEATH SENTENCES IMPOSED FOR ALL CRIMES. 

/29/  SEE N. 12, SUPRA. 

/30/  IT WAS POINTED OUT IN THE COURT'S OPINION IN MCGAUTHA THAT
THESE TWO ALTERNATIVES ARE SUBSTANTIALLY EQUIVALENT.  402 U.S.,AT 206
N. 16. 

/31/  SEE PATRICK, THE STATUS OF CAPITAL PUNISHMENT:  A WORLD
PERSPECTIVE, 56 J.CRIM.L.C.& P.S. 397 (1965).  IN ENGLAND, FOR EXAMPLE,
1957 LEGISLATION LIMITED CAPITAL PUNISHMENT TO MURDER, TREASON, PIRACY
WITH VIOLENCE, DOCKYARDS ARSON AND SOME MILITARY OFFENSES.  THE MURDER
(ABOLITION OF DEATH PENALTY) ACT 1965 ELIMINATED THE PENALTY FOR MURDER
ON A FIVE-YEAR TRIAL BASIS.  2 PUB.GEN.ACTS, C. 71, P. 1577 (NOV. 8,
1965).  THIS ABOLITION WAS MADE PERMANENT IN 1969.  SEE 793
PARL.DEB.,H.C.(5TH SER.)  1294-1298 (1969); 306 PARL.DEB.,H.L.(5TH
SER.)  1317-1322 (1969).  CANADA HAS ALSO UNDERTAKEN LIMITED ABOLITION
ON A FIVE-YEAR EXPERIMENTAL BASIS.  STATS. OF CANADA 1967-1968, 16 & 17
ELIZ.  2, C. 15, P. 145. 

/32/  NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197, 401
(1904) (DISSENTING OPINION). 

MR. JUSTICE BLACKMUN, DISSENTING. 

I JOIN THE RESPECTIVE OPINIONS OF THE CHIEF JUSTICE, MR. JUSTICE
POWELL, AND MR. JUSTICE REHNQUIST, AND ADD ONLY THE FOLLOWING, SOMEWHAT
PERSONAL, COMMENTS. 

1.  CASES SUCH AS THESE PROVIDE FOR ME AN EXCRUCIATING AGONY OF THE
SPIRIT.  I YIELD TO NO ONE IN THE DEPTH OF MY DISTASTE, ANTIPATHY, AND,
INDEED, ABHORRENCE, FOR THE DEATH PENALTY, WITH ALL ITS ASPECTS OF
PHYSICAL DISTRESS AND FEAR AND OF MORAL JUDGMENT EXERCISED BY FINITE
MINDS.  THAT DISTASTE IS BUTTRESSED BY A BELIEF THAT CAPITAL PUNISHMENT
SERVES NO USEFUL PURPOSE THAT CAN BE DEMONSTRATED.  FOR ME, IT VIOLATES
CHILDHOOD'S TRAINING AND LIFE'S EXPERIENCES, AND IS NOT COMPATIBLE WITH
THE PHILOSOPHICAL CONVICTIONS I HAVE BEEN ABLE TO DEVELOP.  IT IS
ANTAGONISTIC TO ANY SENSE OF "REVERENCE FOR LIFE."  WERE I A
LEGISLATOR, I WOULD VOTE AGAINST THE DEATH PENALTY FOR THE POLICY
REASONS ARGUED BY COUNSEL FOR THE RESPECTIVE PETITIONERS AND EXPRESSED
AND ADOPTED IN THE SEVERAL OPINIONS FILED BY THE JUSTICES WHO VOTE TO
REVERSE THESE JUDGMENTS. 

2.  HAVING LIVED FOR MANY YEARS IN A STATE THAT DOES NOT HAVE THE
DEATH PENALTY, /1/  THAT EFFECTIVELY ABOLISHED IT IN 1911, /2/  AND
THAT CARRIED OUT ITS LAST EXECUTION ON FEBRUARY 13, 1906, /3/  CAPITAL
PUNISHMENT HAD NEVER BEEN A PART OF LIFE FOR ME.  IN MY STATE, IT JUST
DID NOT EXIST.  SO FAR AS I CAN DETERMINE, THE STATE, PURELY FROM A
STATISTICAL DETERRENCE POINT OF VIEW, WAS NEITHER THE WORSE NOR THE
BETTER FOR ITS ABOLITION, FOR, AS THE CONCURRING OPINIONS OBSERVE, THE
STATISTICS PROVE LITTLE, IF ANYTHING.  BUT THE STATE AND ITS CITIZENS
ACCEPTED THE FACT THAT THE DEATH PENALTY WAS NOT TO BE IN THE ARSENAL
OF POSSIBLE PUNISHMENTS FOR ANY CRIME. 

3. I, PERHAPS ALONE AMONG THE PRSENT MEMBERS OF THE COURT, AM ON
JUDICIAL RECORD AS TO THIS.  AS A MEMBER OF THE UNITED STATES COURT OF
APPEALS, I FIRST STRUGGLED SILENTLY WITH THE ISSUE OF CAPITAL
PUNISHMENT IN FEGUER V. UNITED STATES, 302 F.2D 214 (CA8 1962), CERT.
DENIED, 371 U.S. 872 (1962).  THE DEFENDANT IN THAT CASE MAY HAVE BEEN
ONE OF THE LAST TO BE EXECUTED UNDER FEDERAL AUSPICES.  I STRUGGLED
AGAIN WITH THE ISSUE, AND ONCE MORE REFRAINED FROM COMMENT, IN MY
WRITING FOR AN EN BANC COURT IN POPE V. UNITED STATES, 372 F.2D 710
(CA8 1967), VACATED (UPON ACKNOWLEDGEMENT BY THE SOLICITOR GENERAL OF
ERROR REVEALED BY THE SUBSEQUENTLY DECIDED UNITED STATES V. JACKSON,
390 U.S. 570 (1968)) AND REMANDED, 392 U.S. 651 (1968).  FINALLY, IN
MAXWELL V. BISHOP, 398 F.2D 138 (CA8 1968), VACATED AND REMANDED, SUA
SPONTE, BY THE COURT ON GROUNDS NOT RAISED BELOW, 398 U.S. 262 (1970),
I REVEALED, SOLITARILY AND NOT FOR THE PANEL, MY DISTRESS AND CONCERN. 
398 F.2D, AT 153-154.  /4/  AND IN JACKSON V. BISHOP, 404 F.2D 571 (CA
8 1968), I HAD NO HESITANCY IN WRITING A PANEL OPINION THAT HELD THE
USE OF THE STRAP BY TRUSTIES UPON FELLOW ARKANSAS PRISONERS TO BE A
VIOLATION OF THE EIGHTH AMENDMENT.  THAT, HOWEVER, WAS IN-PRISON
PUNISHMENT IMPOSED BY INMATE-FOREMEN.     4.  THE SEVERAL CONCURRING
OPINIONS ACKNOWLEDGE, AS THEY MUST, THAT UNTIL TODAY CAPITAL PUNISHMENT
WAS ACCEPTED AND ASSUMED AS NOT UNCONSTITUTIONAL PER SE UNDER THE
EIGHTH AMENDMENT OR THE FOURTEENTH AMENDMENT.  THIS IS EITHER THE FLAT
OR THE IMPLICIT HOLDING OF A UNANIMOUS COURT IN WILKERSON V. UTAH, 99
U.S. 130, 134-135, IN 1879; OF A UNANIMOUS COURT IN IN RE KEMMLER, 136
U.S. 436, 447, IN 1890; OF THE COURT IN WEEMS V. UNITED STATES, 217
U.S. 349, IN 1910; OF ALL THOSE MEMBERS OF THE COURT, A MAJORITY, WHO
ADDRESSED THE ISSUE IN LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S.
459, 463-464, 471-472, IN 1947; OF MR. CHIEF JUSTICE WARREN, SPEAKING
FOR HIMSELF AND THREE OTHERS (JUSTICES BLACK, DOUGLAS, AND WHITTAKER)
IN TROP V. DULLES, 356 U.S. 86, 99, IN 1958; /5/  IN THE DENIAL OF
CERTIORARI IN RUDOLPH V. ALABAMA, 375 U.S. 889, IN 1863 (WHERE,
HOWEVER, JUSTICES DOUGLAS, BRENNAN, AND GOLDBERG WOULD HAVE HEARD
ARGUMENT WITH RESPECT TO THE IMPOSITION OF THE ULTIMATE PENALTY ON A
CONVICTED RAPIST WHO HAD "NEITHER TAKEN NOR ENDANGERED HUMAN LIFE");
AND OF MR. JUSTICE BLACK IN MCGAUTHA V. CALIFORNIA, 402 U.S. 183, 226,
DECIDED ONLY LAST TERM ON MAY 3, 1971.  /6/ 

SUDDENLY, HOWEVER, THE COURSE OF DECISION IS NOW THE OPPOSITE WAY,
WITH THE COURT EVIDENTLY PERSUADED THAT SOMEHOW THE PASSAGE OF TIME HAS
TAKEN US TO A PLACE OF GREATER MATURITY AND OUTLOOK.  THE ARGUMENT,
PLAUSIBLE AND HIGH-SOUNDING AS IT MAY BE, IS NOT PERSUASIVE, FOR IT IS
ONLY ONE YEAR SINCE MCGAUTHA, ONLY EIGHT AND ONE-HALF YEARS SINCE
RUDOLPH, 14 YEARS SINCE TROP, AND 25 YEARS SINCE FRANCIS, AND WE HAVE
BEEN PRESENTED WITH NOTHING THAT DEMONSTRATES A SIGNIFICANT MOVEMENT OF
ANY KIND IN THESE BRIEF PERIODS.  THE COURT HAS JUST DECIDED THAT IT IS
TIME TO STRIKE DOWN THE DEATH PENALTY.  THERE WOULD HAVE BEEN AS MUCH
REASON TO DO THIS WHEN ANY OF THE CITED CASES WERE DECIDED.  BUT THE
COURT REFRAINED FROM THAT ACTION ON EACH OF THOSE OCCASIONS. 

THE COURT HAS RECOGNIZED, AND I CERTAINLY SUBSCRIBE TO THE
PROPOSITION, THAT THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE "MAY ACQUIRE
MEANING AS PUBLIC OPINION BECOMES ENLIGHTENED BY A HUMANE JUSTICE." 
WEEMS V. UNITED STATES, 217 U.S.,AT 378.  AND MR. CHIEF JUSTICE WARREN,
FOR A PLURALITY OF THE COURT, REFERRED TO "THE EVOLVING STANDARDS OF
DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY."  TROP V. DULLES,
356 U.S.,AT 101.  MR. JEFFERSON EXPRESSED THE SAME THOUGHT WELL.  /7/ 

MY PROBLEM, HOWEVER, AS I HAVE INDICATED, IS THE SUDDENESS OF THE
COURT'S PERCEPTION OF PROGRESS IN THE HUMAN ATTITUDE SINCE DECISIONS OF
ONLY A SHORT WHILE AGO. 

5.  TO REVERSE THE JUDGMENTS IN THESE CASES IS, OF COURSE, THE EASY
CHOICE.  IT IS EASIER TO STRIKE THE BALANCE IN FAVOR OF LIFE AND
AGAINST DEATH.  IT IS COMFORTING TO RELAX IN THE THOUGHTS-- PERHAPS THE
RATIONALIZATIONS-- THAT THIS IS THE COMPASSIONATE DECISION FOR A
MATURING SOCIETY; THAT THIS IS THE MORAL AND THE "RIGHT" THING TO DO;
THAT THEREBY WE CONVINCE OURSELVES THAT WE ARE MOVING DOWN THE ROAD
TOWARD HUMAN DECENCY; THAT WE VALUE LIFE EVEN THOUGH THAT LIFE HAS
TAKEN ANOTHER OR OTHERS OR HAS GRIEVOUSLY SCARRED ANOTHER OR OTHERS AND
THEIR FAMILIES; AND THAT WE ARE LESS BARBARIC THAN WE WERE IN 1879, OR
IN 1890, OR IN 1910, OR IN 1947, OR IN 1958, OR IN 1963, OR A YEAR AGO,
IN 1971, WHEN WILKERSON, KEMMLER, WEEMS, FRANCIS, TROP, RUDOLPH, AND
MCGAUTHA WERE RESPECTIVELY DECIDED. 

THIS, FOR ME, IS GOOD ARGUMENT, AND IT MAKES SOME SENSE.  BUT IT IS
GOOD ARGUMENT AND IT MAKES SENSE ONLY IN A LEGISLATIVE AND EXECUTIVE
WAY AND NOT AS A JUDICIAL EXPEDIENT.  AS I HAVE SAID ABOVE, WERE I A
LEGISLATOR, I WOULD DO ALL I COULD TO SPONSOR AND TO VOTE FOR
LEGISLATION ABOLISHING THE DEATH PENALTY.  AND WRE I THE CHIEF
EXECUTIVE OF A SOVEREIGN STATE, I WOULD BE SORELY TEMPTED TO EXERCISE
EXECUTIVE CLEMENCY AS GOVERNOR ROCKEFELLER OF ARKANSAS DID RECENTLY
JUST BEFORE HE DEPARTED FROM OFFICE.  THERE-- ON THE LEGISLATIVE BRANCH
OF THE STATE OR FEDERAL GOVERNMENT, AND SECONDARILY, ON THE EXECUTIVE
BRANCH-- IS WHERE THE AUTHORITY AND RESPONSIBILITY FOR THIS KIND OF
ACTION LIES.  THE AUTHORITY SHOULD NOT BE TAKEN OVER BY THE JUDICIARY
IN THE MODERN GUISE OF AN EIGHTH AMENDMENT ISSUE. 

I DO NOT SIT ON THESE CASES, HOWEVER, AS A LEGISLATOR, RESPONSIVE,
AT LEAST IN PART, TO THE WILL OF CONSTITUTENTS.  OUR TASK HERE, AS MUST
SO FREQUENTLY BE EMPHASIZED AND RE-EMPHASIZED, IS TO PASS UPON THE
CONSTITUTIONALITY OF LEGISLATION THAT HAS BEEN ENACTED AND THAT IS
CHALLENGED.  THIS IS THE SOLE TASK FOR JUDGES.  WE SHOULD NOT ALLOW OUR
PERSONAL PREFERENCES AS TO THE WISDOM OF LEGISLATIVE AND CONGRESSIONAL
ACTION, OR OUR DISTASTE FOR SUCH ACTION, TO GUIDE OUR JUDICIAL DECISION
IN CASES SUCH AS THESE.  THE TEMPTATIONS TO CROSS THAT POLICY LINE ARE
VERY GREAT.  IN FACT, AS TODAY'S DECISION REVEALS, THEY ARE ALMOST
IRRESISTABLE. 

6.  THE COURT, IN MY VIEW, IS SOMEWHAT PROPELLED TOWARD ITS RESULT BY
THE INTERIM DECISION OF THE CALIFORNIA SUPREME COURT, WITH ONE JUSTICE
DISSENTING, THAT THE DEATH PENALTY IS VIOLATIVE OF THAT STATE'S
CONSTITUTION.  PEOPLE V. ANDERSON, 6 CAL.3D 628, 493 P.2D 880 (FEB. 18,
1972).  SO FAR AS I AM AWARE, THAT WAS THE FIRST TIME THE DEATH PENALTY
IN ITS ENTIRETY HAS BEEN NULLIFIED BY JUDICIAL DECISION.  CF. RALPH V.
WARDEN, 438 F.2D 786, 793 (CA4 1970), CERT, DENIED, POST, P. 942. 
CALIFORNIA'S MORAL PROBLEM WAS A PROFOUND ONE, FOR MORE PRISONERS WERE
ON DEATH ROW THERE THAN IN ANY OTHER STATE.  CALIFORNIA, OF COURSE, HAS
THE RIGHT TO CONSTRUE ITS CONSTITUTION AS IT WILL.  ITS CONSTRUCTION,
HOWEVER, IS HARDLY A PRECEDENT FOR FEDERAL ADJUDICATION. 

7.  I TRUST THE COURT FULLY APPRECIATES WHAT IT IS DOING WHEN IT
DECIDES THESE CASES THE WAY IT DOES TODAY.  NOT ONLY ARE THE CAPITAL
PUNISHMENT LAWS OF 39 STATES AND THE DISTRICT OF COLUMBIA STRUCK DOWN,
BUT ALSO ALL THOSE PROVISIONS OF THE FEDERAL STATUTORY STRUCTURE THAT
PERMIT THE DEATH PENALTY APPARENTLY ARE VOIDED.  NO LONGER IS CAPITAL
PUNISHMENT POSSIBLE, I SUSPECT, FOR, AMONG OTHER CRIMES, TREASON, 18
U.S.C. 2381; OR ASSASSINATION OF THE PRESIDENT, THE VICE PRESIDENT, OR
THOSE WHO STAND ELECTED TO THOSE POSITIONS, 18 U.S.C. 1751; OR
ASSASSINATION OF A MEMBER OR MEMBER-ELECT OF CONGRESS, 18 U.S.C. 351;
OR ESPIONAGE, 18 U.S.C. 794; OR RAPE WITHIN THE SPECIAL MARITIME
JURISDICTION, 18 U.S.C. 2031; OR AIRCRAFT OR MOTOR VEHICLE DESTRUCTION
WHERE DEATH OCCURS, 18 U.S.C. 34; OR EXPLOSIVES OFFENSES WHERE DEATH
RESULTS, 18 U.S.C. 844(D) AND (F); OR TRAIN WRECKING, 18 U.S.C. 1992;
OR AIRCRAFT PIRACY, 49 U.S.C. 1472(I).  ALSO IN JEOPARDY, PERHAPS, ARE
THE DEATH PENALTY PROVISIONS IN VARIOUS ARTICLES OF THE UNIFORM CODE OF
MILITARY JUSTICE.  10 U.S.C. 885, 890, 894, 899, 901, 904, 906, 913,
918, AND 920.  ALL THESE SEEM NOW TO BE DISCARDED WITHOUT A PASSING
REFERENCE TO THE REASONS, OR THE CIRCUMSTANCES, THAT PROMPTED THEIR
ENACTMENT, SOME VERY RECENT, AND THEIR RETENTION IN THE FACE OF EFFORTS
TO REPEAL THEM. 

8.  IT IS OF PASSING INTEREST TO NOTE A FEW VOTING FACTS WITH
RESPECT TO RECENT FEDERAL DEATH PENALTY LEGISLATION: 

A. THE AIRCRAFT PIRACY STATUTE, 49 U.S.C. 1472(I), WAS ENACTED
SEPTEMBER 5, 1961.  THE SENATE VOTE ON AUGUST 10 WAS 92-0.  IT WAS
ANNOUNCED THAT SENATORS CHAVEZ, FULBRIGHT, NEUBERGER, AND SYMINGTON
WERE ABSENT BUT THAT, IF PRESENT, ALL FOUR WOULD VOTE YEA.  IT WAS ALSO
ANNOUNCED, ON THE OTHER SIDE OF THE AISLE, THAT SENATOR BUTLER WAS ILL
AND THAT SENATORS BEALL, CARLSON, AND MORTON WERE ABSENT OR DETAINED,
BUT THAT THOSE FOUR, IF PRESENT, WOULD VOTE IN THE AFFIRMATIVE.  THESE
ANNOUNCEMENTS, THEREFORE, INDICATE THAT THE TRUE VOTE WAS 100-0.  107
CONG.REC.  15440.  THE HOUSE PASSED THE BILL WITHOUT RECORDED VOTE. 
107 CONG.REC.  16849. 

B. THE PRESIDENTIAL ASSASSINATION STATUTE, 18 U.S.C. 1751, WAS
APPROVED AUGUST 28, 1965, WITHOUT RECORDED VOTES.  111 CONG.REC. 
14103, 18026, AND 20239. 

C. THE OMNIBUS CRIME CONTROL ACT OF 1970 WAS APPROVED JANUARY 2,
1971.  TITLE IV THEREOF ADDED THE CONGRESSIONAL ASSASSINATION STATUTE
THAT IS NOW 18 U.S.C. 351.  THE RECORDED HOUSE VOTE ON OCTOBER 7, 1970,
WAS 341-26, WITH 63 NOT VOTING AND 62 OF THOSE PAIRED.  116 CONG.REC. 
35363-35364.  THE SENATE VOTE ON OCTOBER 8 WAS 59-0, WITH 41 NOT
VOTING, BUT WITH 21 OF THESE ANNOUNCED AS FAVORING THE BILL.  116
CONG.REC.  35743.  FINAL VOTES AFTER CONFERENCE WERE NOT RECORDED.  116
CONG.REC.  42150, 42199. 

IT IS IMPOSSIBLE FOR ME TO BELIEVE THAT THE MANY LAWYER-MEMBERS OF
THE HOUSE AND SENATE-- INCLUDING, I MIGHT ADD, OUTSTANDING LEADERS AND
PROMINENT CANDIDATES FOR HIGHER OFFICE-- WERE CALLOUSLY UNAWARE AND
INSENSITIVE OF CONSTITUTIONAL OVERTONES IN LEGISLATION OF THIS TYPE. 
THE ANSWER, OF COURSE, IS THAT IN 1961, IN 1965, AND IN 1970 THESE
ELECTED REPRESENTATIVES OF THE PEOPLE-- FAR MORE CONSCIOUS OF THE
TEMPER OF THE TIMES, OF THE MATURING OF SOCIETY, AND OF THE
CONTEMPORARY DEMANDS FOR MAN'S DIGNITY, THAN ARE WE WHO SIT CLOISTERED
ON THIS COURT-- TOOK IT AS SETTLED THAT THE DEATH PENALTY THEN, AS IT
ALWAYS HAD BEEN, WAS NOT IN ITSELF UNCONSTITUTIONAL.  SOME OF THOSE
MEMBERS OF CONGRESS, I SUSPECT, WILL BE SURPRISED AT THIS COURT'S GIANT
STRIDE TODAY. 

9.  IF THE RESERVATIONS EXPRESSED BY MY BROTHER STEWART (WHICH, AS I
READ HIS OPINION, MY BROTHER WHITE SHARES) WERE TO COMMAND SUPPORT,
NAMELY, THAT CAPITAL PUNISHMENT MAY NOT BE UNCONSTITUTIONAL SO LONG AS
IT BE MANDATORILY IMPOSED, THE RESULT, I FEAR, WILL BE THAT STATUTES
STRUCK DOWN TODAY WILL BE RE-ENACTED BY STATE LEGISLATURES TO PRESCRIBE
THE DEATH PENALTY FOR SPECIFIED CRIMES WITHOUT ANY ALTERNATIVE FOR THE
IMPOSITION OF A LESSER PUNISHMENT IN THE DISCRETION OF THE JUDGE OR
JURY, AS THE CASE MAY BE.  THIS APPROACH, IT SEEMS TO ME, ENCOURAGES
LEGISLATION THAT IS REGRESSIVE AND OF AN ANTIQUE MOLD, FOR IT
ELIMINATES THE ELEMENT OF MERCY IN THE IMPOSITION OF PUNISHMENT.  I
THOUGHT WE HAD PASSED BEYOND THAT POINT IN OUR CRIMINOLOGY LONG AGO. 

10.  IT IS NOT WITHOUT INTEREST, ALSO, TO NOTE THAT, ALTHOUGH THE
SEVERAL CONCURRING OPINIONS ACKNOWLEDGE THE HEINOUS AND ATROCIOUS
CHARACTER OF THE OFFENSES COMMITTED BY THE PETITIONERS, NONE OF THOSE
OPINIONS MAKES REFERENCE TO THE MISERY THE PETITIONER'S CRIMES
OCCASIONED TO THE VICTIMS, TO THE FAMILIES OF THE VICTIMS, AND TO THE
COMMUNITIES WHERE THE OFFENSES TOOK PLACE.  THE ARGUMENTS FOR THE
RESPECTIVE PETITIONERS, PARTICULARLY THE ORAL ARGUMENTS, WERE SIMILARLY
AND CURIOUSLY DEVOID OF REFERENCE TO THE VICTIMS.  THERE IS RISK, OF
COURSE, IN A COMMENT SUCH AS THIS, FOR IT OPENS ONE TO THE CHARGE OF
EMPHASIZING THE RETRIBUTIVE.  BUT SEE WILLIAMS V. NEW YORK, 336 U.S.
241, 248, (1949).  NEVERTHELESS, THESE CASES ARE HERE BECAUSE OFFENSES
TO INNOCENT VICTIMS WERE PERPETRATED.  THIS FACT, AND THE TERROR THAT
OCCASIONED IT, AND THE FEAR THAT STALKS THE STREETS OF MANY OF OUR
CITIES TODAY PERHAPS DESERVE NOT TO BE ENTIRELY OVERLOOKED.  LET US
HOPE THAT, WITH THE COURT'S DECISION, THE TERROR IMPOSED WILL BE
FORGOTTEN BY THOSE UPON WHOM IT WAS VISITED, AND THAT OUR SOCIETY WILL
REAP THE HOPED-FOR BENEFITS OF MAGNANIMITY. 

ALTHOUGH PERSONALLY I MAY REJOICE AT THE COURT'S RESULT, I FIND IT
DIFFICULT TO ACCEPT OR TO JUSTIFY AS A MATTER OF HISTORY, OF LAW, OR OF
CONSTITUTIONAL PRONOUNCEMENT.  I FEAR THE COURT HAS OVERSTEPPED.  IT
HAS SOUGHT AND HAS ACHIEVED AN END. 

/1/  MINN. STAT. SEC. 609.10 (1971). 

/2/  MINN. LAWS 1911, C. 387. 

/3/  SEE W. TRENERRY, MURDER IN MINNESOTA 163-167 (1962). 

/4/  "IT IS OBVIOUS, WE THINK, THAT THE EFFORTS ON BEHALF OF MAXWELL
WOULD NOT THUS BE CONTINUING, AND HIS CASE REAPPEARING IN THIS COURT
WERE IT NOT FOR THE FACT THAT IT IS THE DEATH PENALTY, RATHER THAN LIFE
IMPRISONMENT, WHICH HE RECEIVED ON HIS RAPE CONVICTION.  THIS FACT
MAKES THE DECISIONAL PROCESS IN A CASE OF THIS KIND PARTICULARLY
EXCRUCIATING FOR THE AUTHOR OF THIS OPINION /11/  WHO IS NOT PERSONALLY
CONVINCED OF THE RIGHTNESS OF CAPITAL PUNISHMENT AND WHO QUESTIONS IT
AS AN EFFECTIVE DETERRENT.  BUT THE ADVISABILITY OF CAPITAL PUNISHMENT
IS A POLICY MATTER ORDINARILY TO BE RESOLVED BY THE LEGISLATURE OR
THROUGH EXECUTIVE CLEMENCY AND NOT BY THE JUDICIARY.  WE NOTE, FOR WHAT
THAT NOTICE MAY BE WORTH, THAT THE DEATH PENALTY FOR RAPE REMAINS
AVAILABLE UNDER FEDERAL STATUTES.  18 U.S.C. 2031; 10 U.S.C. 920(A)." 

THE DESIGNATED FOOTNOTE OBSERVED THAT MY FELLOW JUDGES DID NOT JOIN
IN MY COMMENT. 

/5/  "AT THE OUTSET, LET US PUT TO ONE SIDE THE DEATH PENALTY AS AN
INDEX OF THE CONSTITUTIONAL LIMIT ON PUNISHMENT.  WHATEVER THE
ARGUMENTS MAY BE AGAINST CAPITAL PUNISHMENT, BOTH ON MORAL GROUNDS AND
IN TERMS OF ACCOMPLISHING THE PURPOSES OF PUNISHMENT-- AND THEY ARE
FORCEFUL-- THE DEATH PENALTY HAS BEEN EMPLOYED THROUGHOUT OUR HISTORY,
AND, IN A DAY WHEN IT IS STILL WIDELY ACCEPTED, IT CANNOT BE SAID TO
VIOLATE THE CONSTITUTIONAL CONCEPT OF CRUELTY.  . . . " 

/6/  "THE EIGHTH AMENDMENT FORBIDS 'CRUEL AND UNUSUAL PUNISHMENTS.' 
IN MY VIEW, THESE WORDS CANNOT BE READ TO OUTLAW CAPITAL PUNISHMENT
BECAUSE THAT PENALTY WAS IN COMMON USE AND AUTHORIZED BY LAW HERE AND
IN THE COUNTRIES FROM WHICH OUR ANCESTORS CAME AT THE TIME THE
AMENDMENT WAS ADOPTED.  IT IS INCONCEIVABLE TO ME THAT THE FRAMERS
INTENDED TO END CAPITAL PUNISHMENT BY THE AMENDMENT.  ALTHOUGH SOME
PEOPLE HAVE URGED THAT THIS COURT SHOULD AMEND THE CONSTITUTION BY
INTERPRETATION TO KEEP IT ABREAST OF MODERN IDEAS, I HAVE NEVER
BELIEVED THAT LIFETIME JUDGES IN OUR SYSTEM HAVE ANY SUCH LEGISLATIVE
POWER." 

/7/  "SOME MEN LOOK AT CONSTITUTIONS WITH SANCTIMONIOUS REVERENCE,
AND DEEM THEM LIKE THE ARK OF THE COVENANT, TOO SACRED TO BE TOUCHED. 
THEY ASCRIBE TO THE MEN OF THE PRECEDING AGE A WISDOM MORE THAN HUMAN,
AND SUPPOSE WHAT THEY DID TO BE BEYOND AMENDMENT.  I KNEW THAT AGE
WELL; I BELONGED TO IT, AND LABORED WITH IT.  IT DESERVED WELL OF ITS
COUNTRY.  IT WAS VERY LIKE THE PRESENT, BUT WITHOUT THE EXPERIENCE OF
THE PRESENT; AND FORTY YEARS OF EXPERIENCE IN GOVERNMENT IS WORTH A
CENTURY OF BOOK-READING; AND THIS THEY WOULD SAY THEMSELVES, WERE THEY
TO RISE FROM THE DEAD.  . . . I KNOW . . . THAT LAWS AND INSTITUTIONS
MUST GO HAND IN HAND WITH THE PROGRESS OF THE HUMAN MIND.  AS THAT
BECOMES MORE DEVELOPED, MORE ENLIGHTENED, AS NEW DISCOVERIES ARE MADE,
NEW TRUTHS DISCLOSED, AND MANNERS AND OPINIONS CHANGE WITH THE CHANGE
OF CIRCUMSTANCES, INSTITUTIONS MUST ADVANCE ALSO, AND KEEP PACE WITH
THE TIMES.  WE MIGHT AS WELL REQUIRE A MAN TO WEAR STILL THE COAT WHICH
FITTED HIM WHEN A BOY, AS CIVILIZED SOCIETY TO REMAIN EVERY UNDER THE
REGIMEN OF THEIR BARBAROUS ANCESTORS.  . . . LET US FOLLOW NO SUCH
EXAMPLES, NOR WEAKLY BELIEVE THAT ONE GENERATION IS NOT AS CAPABLE AS
ANOTHER OF TAKING CARE OF ITSELF, AND OF ORDERING ITS OWN AFFAIRS.  LET
US, AS OUR SISTER STATES HAVE DONE, AVAIL OURSELVES OF OUR REASON AND
EXPERIENCE, TO CORRECT THE CRUDE ESSAYS OF OUR FIRST AND UNEXPERIENCED,
ALTHOUGH WISE, VIRTUOUS, AND WELL-MEANING COUNCILS.  AND LASTLY, LET US
PROVIDE IN OUR CONSTITUTION FOR ITS REVISION AT STATED PERIODS." 
LETTER TO SAMUEL KERCHEVAL, JULY 12, 1816, 15 THE WRITINGS OF THOMAS
JEFFERSON 40-42 (MEMORIAL ED. 1904). 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

THE COURT GRANTED CERTIORARI IN THESE CASES TO CONSIDER WHETHER THE
DEATH PENALTY IS ANY LONGER A PERMISSIBLE FORM OF PUNISHMENT.  403 U.S.
952 (1971).  IT IS THE JUDGMENT OF FIVE JUSTICES THAT THE DEATH
PENALTY, AS CUSTOMARILY PRESCRIBED AND IMPLEMENTED IN THIS COUNTRY
TODAY, OFFENDS THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUAL
PUNISHMENTS.  THE REASONS FOR THAT JUDGMENT ARE STATED IN FIVE SEPARATE
OPINIONS, EXPRESSING AS MANY SEPARATE RATIONALES.  IN MY VIEW, NONE OF
THESE OPINIONS PROVIDES A CONSTITUTIONALLY ADEQUATE FOUNDATION FOR THE
COURT'S DECISION. 

MR. JUSTICE DOUGLAS CONCLUDES THAT CAPITAL PUNISHMENT IS
INCOMPATIBLE WITH NOTIONS OF "EQUAL PROTECTION" THAT HE FINDS TO BE
"IMPLICIT" IN THE EIGHTH AMENDMENT.  ANTE, AT 257.  MR. JUSTICE BRENNAN
BASES HIS JUDGMENT PRIMARILY ON THE THESIS THAT THE PENALTY "DOES NOT
COMPORT WITH HUMAN DIGNITY."  ANTE, AT 270.  MR. JUSTICE STEWART
CONCLUDES THAT THE PENALTY IS APPLIED IN A "WANTON" AND "FREAKISH"
MANNER.  ANTE, AT 310.  FOR MR. JUSTICE WHITE IT IS THE "INFREQUENCY"
WITH WHICH THE PENALTY IS IMPOSED THAT RENDERS ITS USE
UNCONSTITUTIONAL.  ANTE, AT 313.  MR. JUSTICE MARSHALL FINDS THAT
CAPITAL PUNISHMENT IS AN IMPERMISSIBLE FORM OF PUNISHMENT BECAUSE IT IS
"MORALLY UNACCEPTABLE" AND "EXCESSIVE."  ANTE, AT 360, 358. 

ALTHOUGH THE CENTRAL THEME OF PETITIONERS' PRESENTATIONS IN THESE
CASES IS THAT THE IMPOSITION OF THE DEATH PENALTY IS PER SE
UNCONSTITUTIONAL, ONLY TWO OF TODAY'S OPINIONS EXPLICITLY CONCLUDE THAT
SO SWEEPING A DETERMINATION IS MANDATED BY THE CONSTITUTION.  BOTH MR.
JUSTICE BRENNAN AND MR. JUSTICE MARSHALL CALL FOR THE ABOLITION OF ALL
EXISTING STATE AND FEDERAL CAPITAL PUNISHMENT STATUTES.  THEY INTIMATE
AS WELL THAT NO CAPITAL STATUTE COULD BE DEVISED IN THE FUTURE THAT
MIGHT COMPORT WITH THE EIGHTH AMENDMENT.  WHILE THE PRACTICAL
CONSEQUENCES OF THE OTHER THREE OPINIONS ARE LESS CERTAIN, THEY AT
LEAST DO NOT PURPORT TO RENDER IMPERMISSIBLE EVERY POSSIBLE STATUTORY
SCHEME FOR THE USE OF CAPITAL PUNISHMENT THAT LEGISLATURES MIGHT
HEREAFTER DEVISE.  /1/  INSOFAR AS THESE LATTER OPINIONS FAIL, AT LEAST
EXPLICITLY, TO GO AS FAR AS PETITIONERS' CONTENTIONS WOULD CARRY THEM,
THEIR RESERVATIONS ARE ATTRIBUTABLE TO A WILLINGNESS TO ACCEPT ONLY A
PORTION OF PETITIONERS' THESIS.  FOR THE REASONS COGENTLY SET OUT IN
THE CHIEF JUSTICE'S DISSENTING OPINION (ANTE, AT 396-403), AND FOR
REASONS STATED ELSEWHERE IN THIS OPINION, I FIND MY BROTHERS' LESS-THAN
ABSOLUTE-ABOLITION JUDGMENTS UNPERSUASIVE.  BECAUSE THOSE JUDGMENTS
ARE, FOR ME, NOT DISPOSITIVE, I SHALL FOCUS PRIMARILY ON THE BROADER
GROUND UPON WHICH THE PETITIONS IN THESE CASES ARE PREMISED.  THE
FOUNDATIONS OF MY DISAGREEMENT WITH THAT BROADER THESIS ARE EQUALLY
APPLICABLE TO EACH OF THE CONCURRING OPINIONS.  I WILL, THEREFORE, NOT
ENDEAVOR TO TREAT EACH ONE SEPARATELY.  NOR WILL I ATTEMPT TO PREDICT
WHAT FORMS OF CAPITAL STATUTES, IF ANY, MAY AVOID CONDEMNATION IN THE
FUTURE UNDER THE VARIETY OF VIEWS EXPRESSED BY THE COLLECTIVE MAJORITY
TODAY.  THAT DIFFICULT TASK, NOT PERFORMED IN ANY OF THE CONTROLLING
OPINIONS, MUST GO UNANSWERED UNTIL OTHER CASES PRESENTING THESE MORE
LIMITED INQUIRIES ARISE. 

WHATEVER UNCERTAINTIES MAY HEREAFTER SURFACE, SEVERAL OF THE
CONSEQUENCES OF TODAY'S DECISION ARE UNMISTAKABLY CLEAR.  THE DECISION
IS PLAINLY ONE OF THE GREATEST IMPORTANCE.  THE COURT'S JUDGMENT
REMOVES THE DEATH SENTENCES PREVIOUSLY IMPOSED ON SOME 600 PERSONS
AWAITING PUNISHMENT IN STATE AND FEDERAL PRISONS THROUGHOUT THE
COUNTRY.  AT LEAST FOR THE PRESENT, IT ALSO BARS THE STATES AND THE
FEDERAL GOVERNMENT FROM SEEKING SENTENCES OF DEATH FOR DEFENDANTS
AWAITING TRIAL ON CHARGES FOR WHICH CAPITAL PUNISHMENT WAS HERETOFORE A
POTENTIAL ALTERNATIVE.  THE HAPPY EVENT FOR THESE COUNTABLE FEW
CONSTITUTES, HOWEVER, ONLY THE MOST VISIBLE CONSEQUENCE OF THIS
DECISION.  LESS MEASURABLE, BUT CERTAINLY OF NO LESS SIGNIFICANCE, IS
THE SHATTERING EFFECT THIS COLLECTION OF VIEWS HAS ON THE ROOT
PRINCIPLES OF STARE DECISIS, FEDERALISM, JUDICIAL RESTRAINT AND-- MOST
IMPORTANTLY-- SEPARATION OF POWERS. 

THE COURT REJECTS AS NOT DECISIVE THE CLEAREST EVIDENCE THAT THE
FRAMERS OF THE CONSTITUTION AND THE AUTHORS OF THE FOURTEENTH AMENDMENT
BELIEVED THAT THOSE DOCUMENTS POSED NO BARRIER TO THE DEATH PENALTY. 
THE COURT ALSO BRUSHES ASIDE AN UNBROKEN LINE OF PRECEDENT REAFFIRMING
THE HERETOFORE VIRTUALLY UNQUESTIONED CONSTITUTIONALITY OF CAPITAL
PUNISHMENT.  BECAUSE OF THE PERVASIVENESS OF THE CONSTITUTIONAL RULING
SOUGHT BY PETITIONERS, AND ACCEPTED IN VARYING DEGREES BY FIVE MEMBERS
OF THE COURT, TODAY'S DEPARTURE FROM ESTABLISHED PRECEDENT INVALIDATES
A STAGGERING NUMBER OF STATE AND FEDERAL LAWS.  THE CAPITAL PUNISHMENTS
LAWS OF NO LESS THAN 39 STATES /2/  AND THE DISTRICT OF COLUMBIA ARE
NULLIFIED.  IN ADDITION, NUMEROUS PROVISIONS OF THE CRIMINAL CODE OF
THE UNITED STATES AND OF THE UNIFORM CODE OF MILITARY JUSTICE ALSO ARE
VOIDED.  THE COURT'S JUDGMENT NOT ONLY WIPES OUT LAWS PRESENTLY IN
EXISTENCE, BUT DENIES TO CONGRESS AND TO THE LEGISLATURES OF THE 50
STATES THE POWER TO ADOPT NEW POLICIES CONTRARY TO THE POLICY SELECTED
BY THE COURT.  INDEED, IT IS THE VIEW OF TWO OF MY BROTHERS THAT THE
PEOPLE OF EACH STATE MUST BE DENIED THE PREROGATIVE TO AMEND THEIR
CONSTITUTIONS TO PROVIDE FOR CAPITAL PUNISHMENT EVEN SELECTIVELY FOR
THE MOST HEINOUS CRIME. 

IN TERMS OF THE CONSTITUTIONAL ROLE OF THIS COURT, THE IMPACT OF THE
MAJORITY'S RULING IS ALL THE GREATER BECAUSE THE DECISION ENCROACHES
UPON AN AREA SQUARELY WITHIN THE HISTORIC PREROGATIVE OF THE
LEGISLATIVE BRANCH-- BOTH STATE AND FEDERAL-- TO PROTECT THE CITIZENRY
THROUGH THE DESIGNATION OF PENALTIES FOR PROHIBITABLE CONDUCT.  IT IS
THE VERY SORT OF JUDGMENT THAT THE LEGISLATIVE BRANCH IS COMPETENT TO
MAKE AND FOR WHICH THE JUDICIARY IS ILL-EQUIPPED.  THROUGHOUT OUR
HISTORY, JUSTICES OF THIS COURT HAVE EMPHASIZED THE GRAVITY OF
DECISIONS INVALIDATING LEGISLATIVE JUDGMENTS, ADMONISHING THE NINE MEN
WHO SIT ON THIS BENCH OF THE DUTY OF SELF-RESTRAINT, ESPECIALLY WHEN
CALLED UPON TO APPLY THE EXPANSIVE DUE PROCESS AND CRUEL AND UNUSUAL
PUNISHMENT RUBRICS.  I CAN RECALL NO CASE IN WHICH, IN THE NAME OF
DECIDING CONSTITUIONAL QUESTIONS, THIS COURT HAS SUBORDINATED NATIONAL
AND LOCAL DEMOCRATIC PROCESSES TO SUCH AN EXTENT.  BEFORE TURNING TO
ADDRESS THE THESIS OF PETITIONERS' CASE AGAINST CAPITAL PUNISHMENT-- A
THESIS THAT HAS PROVED, AT LEAST IN LARGE MEASURE, PERSUASIVE TO A
MAJORITY OF THIS COURT-- I FIRST WILL SET OUT THE PRINCIPLES THAT
COUNSEL AGAINST THE COURT'S SWEEPING DECISION. 

  I 

THE CONSTITUTION ITSELF POSES THE FIRST OBSTACLE TO PETITIONERS'
ARGUMENT THAT CAPITAL PUNISHMENT IS PER SE UNCONSTITUTIONAL.  THE
RELEVANT PROVISIONS ARE THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS. 
THE FIRST OF THESE PROVIDES IN PART: 

     "NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE

  INFAMOUS CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND

  JURY . . .; NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENCE

  TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB; . . . NOR BE

  DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF

  LAW . . . "

THUS, THE FEDERAL GOVERNMENT'S POWER WAS RESTRICTED IN ORDER TO
GUARANTEE THOSE CHARGED WITH CRIMES THAT THE PROSECUTION WOULD HAVE
ONLY A SINGLE OPPORTUNITY TO SEEK IMPOSITION OF THE DEATH PENALTY AND
THAT THE DEATH PENALTY COULD NOT BE EXACTED WITHOUT DUE PROCESS AND A
GRANT JURY INDICTMENT.  THE FOURTEENTH AMENDMENT, ADOPTED ABOUT 77
YEARS AFTER THE BILL OF RIGHTS, IMPOSED THE DUE PROCESS LIMITATION OF
THE FIFTH AMENDMENT UPON THE STATES' POWER TO AUTHORIZE CAPITAL
PUNISHMENT. 

THE EIGHTH AMENDMENT, ADOPTED AT THE SAME TIME AS THE FIFTH,
PROSCRIBES "CRUEL AND UNUSUAL" PUNISHMENTS.  IN AN EFFORT TO DISCERN
ITS MEANING, MUCH AS BEEN WRITTEN ABOUT ITS HISTORY IN THE OPINIONS OF
THIS COURT AND ELSEWHERE.  /3/  THAT HISTORY NEED NOT BE RESTATED HERE
SINCE, WHATEVER PUNISHMENTS THE FRAMERS OF THE CONSTITUTION MAY HAVE
INTENDED TO PROHIBIT UNDER THE "CRUEL AND UNUSUAL" LANGUAGE, THERE
CANNOT BE THE SLIGHTEST DOUBT THAT THEY INTENDED NO ABSOLUTE BAR ON THE
GOVERNMENT'S AUTHORITY TO IMPOSE THE DEATH PENALTY.  MCGAUTHA V.
CALIFORNIA, 402 U.S. 183, 226 (1971) (SEPARATE OPINION OF BLACK, J.). 
AS MUCH IS MADE CLEAR BY THE THREE REFERENCES TO CAPITAL PUNISHMENT IN
THE FIFTH AMENDMENT.  INDEED, THE SAME BODY THAT PROPOSED THE EIGHTH
AMENDMENT ALSO PROVIDED, IN THE FIRST CRIMES ACT OF 1790, FOR THE DEATH
PENALTY FOR A NUMBER OF OFFENSES.  1 STAT. 112. 

OF COURSE, THE SPECIFIC PROHIBITIONS WITHIN THE BILL OF RIGHTS ARE
LIMITATIONS ON THE EXERCISE OF POWER; THEY ARE NOT AN AFFIRMATIVE GRANT
OF POWER TO THE GOVERNMENT.  I, THEREFORE, DO NOT READ THE SEVERAL
REFERENCES TO CAPITAL PUNISHMENT AS FORCLOSING THIS COURT FROM
CONSIDERING WHETHER THE DEATH PENALTY IN A PARTICULAR CASE OFFENDS THE
EIGHTH AND FOURTEENTH AMENDMENTS.  NOR ARE "CRUEL AND UNUSUAL
PUNISHMENTS" AND "DUE PROCESS OF LAW" STATIC CONCEPTS WHOSE MEANING AND
SCOPE WERE SEALED AT THE TIME OF THEIR WRITING.  THEY WERE DESIGNED TO
BE DYNAMIC AND TO GAIN MEANING THROUGH APPLICATION TO SPECIFIC
CIRCUMSTANCES, MANY OF WHICH WERE NOT CONTEMPLATED BY THEIR AUTHORS. 
WHILE FLEXIBILITY IN THE APPLICATION OF THESE BROAD CONCEPTS IS ONE OF
THE HALLMARKS OF OUR SYSTEM OF GOVERNMENT, THE COURT IS NOT FREE TO
READ INTO THE CONSTITUTION A MEANING THAT IS PLAINLY AT VARIANCE WITH
ITS LANGUAGE.  BOTH THE LANGUAGE OF THE FIFTH AND FOURTEENTH AMENDMENTS
AND THE HISTORY OF THE EIGHTH AMENDMENT CONFIRM BEYOND DOUBT THAT THE
DEATH PENALTY WAS CONSIDERED TO BE A CONSTITUTIONALLY PERMISSIBLE
PUNISHMENT.  IT IS, HOWEVER, WITHIN THE HISTORIC PROCESS OF
CONSTITUTIONAL ADJUDICATION TO CHALLENGE THE IMPOSITION OF THE DEATH
PENALTY IN SOME BARBARIC MANNER OR AS A PENALTY WHOLLY DISPROPORTIONATE
TO A PARTICULAR CRIMINAL ACT.  AND IN MAKING SUCH A JUDGMENT IN A CASE
BEFORE IT, A COURT MAY CONSIDER CONTEMPORARY STANDARDS TO THE EXTENT
THEY ARE RELEVANT.  WHILE THIS WEIGHING OF A PUNISHMENT AGAINST THE
EIGHTH AMENDMENT STANDARD ON A CASE-BY-CASE BASIS IS CONSONANT WITH
HISTORY AND PRECEDENT, IT IS NOT WHAT PETITIONERS DEMAND IN THESE
CASES.  THEY SEEK NOTHING LESS THAN THE TOTAL ABOLITION OF CAPITAL
PUNISHMENT BY JUDICIAL FIAT. 

        II 

PETITIONERS ASSERT THAT THE CONSTITUTIONAL ISSUE IS AN OPEN ONE
UNCONTROLLED BY PRIOR DECISIONS OF THIS COURT.  THEY VIEW THE SEVERAL
CASES DECIDED UNDER THE EIGHTH AMENDMENT AS ASSUMING THE
CONSTITUTIONALITY OF THE DEATH PENALTY WITHOUT FOCUSING SQUARELY UPON
THE ISSUE.  I DO NOT BELIEVE THAT THE CASE LAW CAN BE SO EASILY CAST
ASIDE.  THE COURT ON NUMEROUS OCCASIONS HAS BOTH ASSUMED AND ASSERTED
THE CONSTITUTIONALITY OF CAPITAL PUNISHMENT.  IN SEVERAL CASES THAT
ASSUMPTION PROVIDED A NECESSARY FOUNDATION FOR THE DECISION, AS THE
ISSUE WAS WHETHER A PARTICULAR MEANS OF CARRYING OUT A CAPITAL SENTENCE
WOULD BE ALLOWED TO STAND.  EACH OF THOSE DECISIONS NECESSARILY WAS
PREMISED ON THE ASSUMPTION THAT SOME METHOD OF EXACTING THE PENALTY WAS
PERMISSIBLE. 

THE ISSUE IN THE FIRST CAPITAL CASE IN WHICH THE EIGHTH AMENDMENT
WAS INVOKED, WILKERSON V. UTAH, 99 U.S. 130 (1879), WAS WHETHER
CARRYING OUT A DEATH SENTENCE BY PUBLIC SHOOTING WAS CRUEL AND UNUSUAL
PUNISHMENT.  A UNANIMOUS COURT UPHELD THAT FORM OF EXECUTION, NOTING
FIRST THAT THE PUNISHMENT ITSELF, AS DISTINGUISHED FROM THE MODE OF ITS
INFLICTION, WAS "NOT PRETENDED BY THE COUNSEL OF THE PRISONER" (ID., AT
137) TO BE CRUEL AND UNUSUAL.  THE COURT WENT ON TO HOLD THAT: 

     "CRUEL AND UNUSUAL PUNISHMENTS ARE FORBIDDEN BY THE

  CONSTITUTION, BUT THE AUTHORITIES . . . ARE QUITE SUFFICIENT TO

  SHOW THAT THE PUNISHMENT OF SHOOTING AS A MODE OF EXECUTING THE

  DEATH PENALTY FOR THE CRIME OF MURDER IN THE FIRST DEGREE IS NOT

  INCLUDED IN THAT CATEGORY . . . " ID., AT 134-135. 

ELEVEN YEARS LATER, IN IN RE KEMMLER, 136 U.S. 436 (1890), THE COURT
AGAIN FACED A QUESTION INVOLVING THE METHOD OF CARRYING OUT A CAPITAL
SENTENCE.  ON REVIEW OF A DENIAL OF HABEAS CORPUS RELIEF BY THE SUPREME
COURT OF NEW YORK, THIS COURT WAS CALLED ON TO DECIDE WHETHER
ELECTROCUTION, WHICH ONLY VERY RECENTLY HAD BEEN ADOPTED BY THE NEW
YORK LEGISLATURE AS A MEANS OF EXECUTION, WAS IMPERMISSIBLY CRUEL AND
UNUSUAL IN VIOLATION OF THE FOURTEENTH AMENDMENT.  /4/  CHIEF JUSTICE
FULLER, SPEAKING FOR THE ENTIRE COURT, RULED IN FAVOR OF THE STATE. 
ELECTROCUTION HAD BEEN SELECTED BY THE LEGISLATURE, AFTER CAREFUL
INVESTIGATION, AS "THE MOST HUMANE AND PRACTICAL METHOD KNOWN TO MODERN
SCIENCE OF CARRYING INTO EFFECT THE SENTENCE OF DEATH."  ID., AT 444. 
THE COURT DREW A CLEAR LINE BETWEEN THE PENALTY ITSELF AND THE MODE OF
ITS EXECUTION:     "PUNISHMENTS ARE CRUEL WHEN THEY INVOLVE TORTURE OR
A LINGERING DEATH; BUT THE PUNISHMENT OF DEATH IS NOT CRUEL, WITHIN THE
MEANING OF THAT WORD AS USED IN THE CONSTITUTION.  IT IMPLIES THERE
SOMETHING INHUMAN AND BARBAROUS,

  SOMETHING MORE THAN THE MERE EXTINGUISHMENT OF LIFE."  ID., AT
447. 

MORE THAN 50 YEARS LATER, IN LOUISIANA EX REL. FRANCIS V. RESWEBER,
329 U.S. 459 (1947), THE COURT CONSIDERED A CASE IN WHICH, DUE TO A
MECHANICAL MALFUNCTION, LOUISIANA'S INITIAL ATTEMPT TO ELECTROCUTE A
CONVICTED MURDERER HAD FAILED.  PETITIONER SOUGHT TO BLOCK A SECOND
ATTEMPT TO EXECUTE THE SENTENCE ON THE GROUND THAT TO DO SO WOULD
CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT.  IN THE PLURALITY OPINION
WRITTEN BY MR. JUSTICE REED, CONCURRED IN BY CHIEF JUSTICE VINSON AND
JUSTICES BLACK AND JACKSON, RELIEF WAS DENIED.  AGAIN THE COURT FOCUSED
ON THE MANNER OF EXECUTION, NEVER QUESTIONING THE PROPRIETY OF THE
DEATH SENTENCE ITSELF. 

"THE CASE BEFORE US DOES NOT CALL FOR AN EXAMINATION INTO ANY
PUNISHMENTS EXCEPT THAT OF DEATH.  . . . THE TRADITIONAL HUMANITY OF
MODERN ANGLO-AMERICAN LAW FORBIDS THE INFLICTION OF UNNECESSARY PAIN IN
THE EXECUTION OF THE DEATH SENTENCE.  . . . 

     " . . . THE CRUELTY AGAINST WHICH THE CONSTITUTION PROTECTS A

  CONVICTED MAN IS CRUELTY INHERENT IN THE METHOD OF PUNISHMENT,

  NOT THE NECESSARY SUFFERING INVOLVED IN ANY METHOD EMPLOYED TO

  EXTINGUISH LIFE HUMANELY."  ID., AT 463-464. 

MR. JUSTICE FRANKFURTER, UNWILLING TO DISPOSE OF THE CASE UNDER THE
EIGHTH AMENDMENT'S SPECIFIC PROHIBITION, APPROVED THE SECOND EXECUTION
ATTEMPT UNDER THE DUE PROCESS CLAUSE.  HE CONCLUDED THAT "A STATE MAY
BE FOUND TO DENY A PERSON DUE PROCESS BY TREATING EVEN ONE GUILTY OF
CRIME IN A MANNER THAT VIOLATES STANDARDS OF DECENCY MORE OR LESS
UNIVERSALLY ACCEPTED THOUGH NOT WHEN IT TREATS HIM BY A MODE ABOUT
WHICH OPINION IS FAIRLY DIVIDED."  ID., AT 469-470. 

THE FOUR DISSENTING JUSTICES, ALTHOUGH FINDING A SECOND ATTEMPT AT
EXECUTION TO BE IMPERMISSIBLY CRUEL, EXPRESSLY RECOGNIZED THE VALIDITY
OF CAPITAL PUNISHMENT: 

     "IN DETERMINING WHETHER THE PROPOSED PROCEDURE IS

  UNCONSTITUTIONAL, WE MUST MEASURE IT AGAINST A LAWFUL

  ELECTROCUTION.  . . . ELECTROCUTION, WHEN INSTANTANEOUS, CAN BE

  INFLICTED BY A STATE IN CONFORMITY WITH DUE PROCESS OF LAW.  . .

  . 

     "THE ALL-IMPORTANT CONSIDERATION IS THAT THE EXECUTION SHALL
BE

  SO INSTANTANEOUS AND SUBSTANTIALLY PAINLESS THAT THE PUNISHMENT

SHALL BE REDUCED, AS NEARLY AS POSSIBLE, TO NO MORE THAN THAT OF

  DEATH ITSELF."  ID., AT 474 (ORIGINAL EMPHASIS). 

EACH OF THESE CASES INVOLVED THE AFFIRMANCE OF A DEATH SENTENCE WHERE
ITS VALIDITY WAS ATTACKED AS VIOLATING THE EIGHTH AMENDMENT.  FIVE
OPINIONS WERE WRITTEN IN THESE THREE CASES, EXPRESSING THE VIEWS OF 23
JUSTICES.  WHILE IN THE NARROWEST SENSE IT IS CORRECT TO SAY THAT IN
NONE WAS THERE A FRONTAL ATTACK UPON THE CONSTITUTIONALITY OF THE DEATH
PENALTY, EACH OPINION WENT WELL BEYOND AN UNARTICULATED ASSUMPTION OF
VALIDITY.  THE POWER OF THE STATES TO IMPOSE CAPITAL PUNISHMENT WAS
REPEATEDLY AND EXPRESSLY RECOGNIZED. 

IN ADDITION TO THESE CASES IN WHICH THE CONSTITUTIONALITY OF THE
DEATH PENALTY WAS A NECESSARY FOUNDATION FOR THE DECISION, THOSE WHO
TODAY WOULD HAVE THIS COURT UNDERTAKE THE ABSOLUTE ABOLITION OF THE
DEATH PENALTY ALSO MUST REJECT THE OPINIONS OF OTHER CASES STIPULATING
OR ASSUMING THE CONSTITUTIONALITY OF CAPITAL PUNISHMENT.  TROP V.
DULLES, 356 U.S. 86, 99, 100 (1958); WEEMS V. UNITED STATES, 217 U.S.
349, 382, 409 (1910) (WHITE, J., JOINED BY HOLMES, J., DISSENTING). 
/5/  SEE ALSO MCGAUTHA V. CALIFORNIA, 402 U.S.,AT 226 (SEPARATE OPINION
OF BLACK, J.); ROBINSON V. CALIFORNIA, 370 U.S. 660, 676 (1962)
(DOUGLAS, J., CONCURRING). 

THE PLURALITY OPINION IN TROP V. DULLES, SUPRA, IS OF SPECIAL
INTEREST SINCE IT IS THIS OPINION, IN LARGE MEASURE, THAT PROVIDES THE
FOUNDATION FOR THE PRESENT ATTACK ON THE DEATH PENALTY.  /6/  IT IS
ANOMALOUS THAT THE STANDARD URGED BY PETITONERS-- "EVOLVING STANDARDS
OF DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY" (356 U.S.,AT
101)-- SHOULD BE DERIVED FROM AN OPINION THAT SO UNQUALIFIEDLY REJECTS
THEIR ARGUMENTS.  CHIEF JUSTICE WARREN, JOINED BY JUSTICES BLACK,
DOUGLAS, AND WHITTAKER, STATED FLATLY: 

"AT THE OUTSET, LET US PUT TO ONE SIDE THE DEATH PENALTY AS AN

  INDEX OF THE CONSTITUTIONAL LIMIT ON PUNISHMENT.  WHATEVER THE

  ARGUMENTS MAY BE AGAINST CAPITAL PUNISHMENT, BOTH ON MORAL

  GROUNDS AND IN TERMS OF ACCOMPLISHING THE PURPOSES OF

  PUNISHMENT-- AND THEY ARE FORCEFUL-- THE DEATH PENALTY HAS BEEN

  EMPLOYED THROUGHOUT OUR HISTORY, AND, IN A DAY WHEN IT IS STILL

  WIDELY ACCEPTED, IT CANNOT BE SAID TO VIOLATE THE CONSTITUTIONAL

  CONCEPT OF CRUELTY."  ID., AT 99. 

THE ISSUE IN TROP WAS WHETHER FORFEITURE OF CITIZENSHIP WAS A CRUEL AND
UNUSUAL PUNISHMENT WHEN IMPOSED ON A WARTIME DESERTER WHO HAD GONE
"OVER THE HILL" FOR LESS THAN A DAY AND HAD WILLINGLY SURRENDERED.  IN
EXAMINING THE CONSEQUENCES OF THE RELATIVELY NOVEL PUNISHMENT OF
DENATIONALIZATION, /7/  CHIEF JUSTICE WARREN DREW A LINE BETWEEN
"TRADITIONAL" AND "UNUSUAL" PENALTIES: 

"WHILE THE STATE HAS THE POWER TO PUNISH, THE (EIGHTH) AMENDMENT
STANDS TO ASSURE THAT THIS POWER BE EXERCISED WITHIN THE LIMITS OF
CIVILIZED STANDARDS.  FINES, IMPRISONMENT AND EVEN EXECUTION MAY BE
IMPOSED DEPENDING UPON THE ENORMITY OF THE CRIME, BUT ANY TECHNIQUE
OUTSIDE THE BOUNDS OF THESE TRADITIONAL PENALTIES IS CONSTITUTIONALLY
SUSPECT."  ID., AT 100.  THE PLURALITY'S REPEATED DISCLAIMERS OF ANY
ATTACK ON CAPITAL PUNISHMENT ITSELF MUST BE VIEWED AS MORE THAN OFFHAND
DICTA SINCE THOSE VIEWS WERE WRITTEN IN DIRECT RESPONSE TO THE STRONG
LANGUAGE IN MR. JUSTICE FRANKFURTER'S DISSENT ARGUING THAT
DENATIONALIZATION COULD NOT BE A DISPROPORTIONATE PENALTY FOR A
CONCEDEDLY CAPITAL OFFENSE.  /8/ 

THE MOST RECENT PRECEDENTS OF THIS COURT-- WITHERSPOON V. ILLINOIS,
391 U.S. 510 (1968), AND MCGAUTHA V. CALIFORNIA, SUPRA-- ARE ALSO
PREMISED TO A SIGNIFICANT DEGREE ON THE CONSTITUTIONALITY OF THE DEATH
PENALTY.  WHILE THE SCOPE OF REVIEW IN BOTH CASES WAS LIMITED TO
QUESTIONS INVOLVING THE PROCEDURES FOR SELECTING JURIES AND REGULATING
THEIR DELIBERATIONS IN CAPITAL CASES, /9/  THOSE OPINIONS WERE
"SINGULARLY ACADEMIC EXERCISES)"  /10/  IF THE MEMBERS OF THIS COURT
WERE PREPARED AT THOSE TIMES TO FIND IN THE CONSTITUTION THE COMPLETE
PROHIBITION OF THE DEATH PENALTY.  THIS IS ESPECIALLY TRUE OF MR.
JUSTICE HARLAN'S OPINION FOR THE COURT IN MCGAUTHA, IN WHICH, AFTER A
FULL REVIEW OF THE HISTORY OF CAPITAL PUNISHMENT, HE CONCLUDED THAT "WE
FIND IT QUITE IMPOSSIBLE TO SAY THAT COMMITTING TO THE UNTRAMMELED
DISCRETION OF THE JURY THE POWER TO PRONOUNCE LIFE OR DEATH IN CAPITAL
CASES IS OFFENSIVE TO ANYTHING IN THE CONSTITUTION."  ID., AT 207. 
/11/ 

PERHAPS ENOUGH HAS BEEN SAID TO DEMONSTRATE THE UNSWERVING POSITION
THAT THIS COURT HAS TAKEN IN OPINIONS SPANNING THE LAST HUNDRED YEARS. 
ON VIRTUALLY EVERY OCCASION THAT ANY OPINION HAS TOUCHED ON THE
QUESTION OF THE CONSTITUTIONALITY OF THE DEATH PENALTY, IT HAS BEEN
ASSERTED AFFIRMATIVELY, OR TACITLY ASSUMED, THAT THE CONSTITUTION DOES
NOT PROHIBIT THE PENALTY.  NO JUSTICE OF THE COURT, UNTIL TODAY, HAS
DISSENTED FROM THIS CONSISTENT READING OF THE CONSTITUTION.  THE
PETITIONERS IN THESE CASES NOW BEFORE THE COURT CANNOT FAIRLY AVOID THE
WEIGHT OF THIS SUBSTANTIAL BODY OF PRECEDENT MERELY BY ASSERTING THAT
THERE IS NO PRIOR DECISION PRECISELY IN POINT.  STARE DECISIS, IF IT IS
A DOCTRINE FOUNDED ON PRINCIPLE, SURELY APPLIES WHERE THERE EXISTS A
LONG LINE OF CASES ENDORSING OR NECESSARILY ASSUMING THE VALIDITY OF A
PARTICULAR MATTER OF CONSTITUTIONAL INTERPRETATION.  GREEN V. UNITED
STATES, 356 U.S. 165, 189-193 (1958) (FRANKFURTER, J., CONCURRING). 
WHILE THESE OFT-REPEATED EXPRESSIONS OF UNCHALLENGED BELIEF IN THE
CONSTITUTIONALITY OF CAPITAL PUNISHMENT MAY NOT JUSTIFY A SUMMARY
DISPOSITION OF THE CONSTITUTIONAL QUESTION BEFORE US, THEY ARE VIEWS
EXPRESSED AND JOINED IN OVER THE YEARS BY NO LESS THAN 29 JUSTICES OF
THIS COURT AND THEREFORE MERIT THE GREATEST RESPECT.  /12/  THOSE WHO
NOW RESOLVE TO SET THOSE VIEWS ASIDE INDEED HAVE A HEAVY BURDEN. 

III 

PETITIONERS SEEK TO AVOID THE AUTHORITY OF THE FOREGOING CASES, AND
THE WEIGHT OF EXPRESS RECOGNITION IN THE CONSTITUTION ITSELF, BY
REASONING WHICH WILL NOT WITHSTAND ANALYSIS.  THE THESIS OF
PETITIONERS' CASE DERIVES FROM SEVERAL OPINIONS IN WHICH MEMBERS OF
THIS COURT HAVE RECOGNIZED THE DYNAMIC NATURE OF THE PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENTS.  THE FINAL MEANING OF THOSE
WORDS WERE NOT SET IN 1791.  RATHER, TO USE THE WORDS OF CHIEF JUSTICE
WARREN SPEAKING FOR A PLURALITY OF THE COURT IN TROP V. DULLES, 356
U.S.,AT 100-101: 

"(THE WORDS OF THE AMENDMENT ARE NOT PRECISE, AND . . . THEIR SCOPE
IS NOT STATIC.  THE AMENDMENT MUST DRAW ITS MEANING FROM THE EVOLVING
STANDARDS OF DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY." 
BUT THIS WAS NOT NEW DOCTRINE.  IT WAS THE APPROACH TO THE EIGHTH
AMENDMENT TAKEN BY MR. JUSTICE MCKENNA IN HIS OPINION FOR THE COURT IN
WEEMS V. UNITED STATES, 217 U.S. 349 (1970).  WRITING FOR FOUR JUSTICES
SITTING AS THE MAJORITY OF THE SIX-MAN COURT DECIDING THE CASE, HE
CONCLUDED THAT THE CLAUSE MUST BE "PROGRESSIVE"; IT IS NOT "FASTENED TO
THE OBSOLETE BUT MAY ACQUIRE MEANING AS PUBLIC OPINION BECOMES
ENLIGHTENED BY A HUMANE JUSTICE."  ID., AT 378.  THE SAME TEST WAS
OFFERED BY MR. JUSTICE FRANKFURTER IN HIS SEPARATE CONCURRENCE IN
LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S.,AT 469.  WHILE HE
REJECTED THE NOTION THAT THE FOURTEENTH AMENDMENT MADE THE EIGHTH
AMENDMENT FULLY APPLICABLE TO THE STATES, HE NONETHELESS FOUND AS A
MATTER OF DUE PROCESS THAT THE STATES WERE PROHIBITED FROM "TREATING
EVEN ONE GUILTY OF CRIME IN A MANNER THAT VIOLATES STANDARDS OF DECENCY
MORE OR LESS UNIVERSALLY ACCEPTED." 

WHETHER ONE VIEWS THE QUESTION AS ONE OF DUE PROCESS OR OF CRUEL AND
UNUSUAL PUNISHMENT, AS I DO FOR CONVENIENCE IN THIS CASE, THE ISSUE IS
ESSENTIALLY THE SAME.  /13/  THE FUNDAMENTAL PREMISE UPON WHICH EITHER
STANDARD IS BASED IS THAT NOTIONS OF WHAT CONSTITUTES CRUEL AND UNUSUAL
PUNISHMENT OR DUE PROCESS DO EVOLVE.  NEITHER THE CONGRESS NOR ANY
STATE LEGISLATURE WOULD TODAY TOLERATE PILLORYING, BRANDING, OR
CROPPING OR NAILING OF THE EARS-- PUNISHMENTS THAT WERE IN EXISTENCE
DURING OUR COLONIAL ERA.  /14/  SHOULD, HOWEVER, ANY SUCH PUNISHMENT BE
PRESCRIBED, THE COURTS WOULD CERTAINLY ENJOIN ITS EXECUTION.  SEE
JACKSON V. BISHOP, 404 F.2D 571 (CA8 1968).  LIKEWISE, NO COURT WOULD
APPROVE ANY METHOD OF IMPLEMENTATION OF THE DEATH SENTENCE FOUND TO
INVOLVE UNNECESSARY CRUELTY IN LIGHT OF PRESENTLY AVAILABLE
ALTERNATIVES.  SIMILARLY, THERE MAY WELL BE A PROCESS OF EVOLVING
ATTITUDE WITH RESPECT TO THE APPLICATION OF THE DEATH SENTENCE FOR
PARTICULAR CRIMES.  /15/  SEE MCGAUTHA V. CALIFORNIA, 402 U.S.,AT 242
(DOUGLAS, J., DISSENTING). 

BUT WE ARE NOT ASKED TO CONSIDER THE PERMISSIBILITY OF ANY OF THE
SEVERAL METHODS EMPLOYED IN CARRYING OUT THE DEATH SENTENCE.  NOR ARE
WE ASKED, AT LEAST AS PART OF THE CORE SUBMISSION IN THESE CASES, TO
DETERMINE WHETHER THE PENALTY MIGHT BE A GROSSLY EXCESSIVE PUNISHMENT
FOR SOME SPECIFIC CRIMINAL CONDUCT.  EITHER INEQUITY WOULD CALL FOR A
DISCRIMINATING EVALUATION OF PARTICULAR MEANS, OR OF THE RELATIONSHIP
BETWEEN PARTICULAR CONDUCT AND ITS PUNISHMENT.  PETITIONERS' PRINCIPAL
ARGUMENT GOES FAR BEYOND THE TRAIDITONAL PROCESS OF CASE-BY-CASE
INCLUSION AND EXCLUSION.  INSTEAD THE ARGUMENT INSISTS ON AN
UNPRECEDENTED CONSTITUTIONAL RULE OF ABSOLUTE PROHIBITION OF CAPITAL
PUNISHMENT FOR ANY CRIME, REGARDLESS OF ITS DEPRAVITY AND IMPACT ON
SOCIETY.  IN CALLING FOR A PRECIPITATE AND FINAL JUDICIAL END TO THIS
FORM OF PENALTY AS OFFENSIVE TO EVOLVING STANDARDS OF DECENCY,
PETITIONERS WOULD HAVE THIS COURT ABANDON THE TRANDITIONAL AND MORE
REFINED APPROACH CONSISTENTLY FOLLOWED IN ITS PRIOR EIGHTH AMENDMENT
PRECEDENTS.  WHAT THEY ARE SAYING, IN EFFECT, IS THAT THE EVOLUTIONARY
PROCESS HAS COME SUDDENLY TO AN END; THAT THE ULTIMATE WISDOM AS TO THE
APPROPRIATENESS OF CAPITAL PUNISHMENT UNDER ALL CIRCUMSTANCES, AND FOR
ALL FUTURE GENERATIONS, HAS SOMEHOW BEEN REVEALED. 

THE PRIOR OPINIONS OF THIS COURT POINT WITH GREAT CLARITY TO REASONS
WHY THOSE OF US WHO SIT ON THIS COURT AT A PARTICULAR TIME SHOULD ACT
WITH RESTRAINT BEFORE ASSUMING, CONTRARY TO A CENTURY OF PRECEDENT,
THAT WE NOW KNOW THE ANSWER FOR ALL TIME TO COME.  FIRST, WHERE AS
HERE, THE LANGUAGE OF THE APPLICABLE PROVISION PROVIDES GREAT LEEWAY
AND WHERE THE UNDERLYING SOCIAL POLICIES ARE FELT TO BE OF VITAL
IMPORTANCE, THE TEMPTATION TO READ PERSONAL PREFERENCE INTO THE
CONSTITUTION IS UNDERSTANDABLY GREAT.  IT IS TOO EASY TO PROPOUND OUR
SUBJECTIVE STANDARDS OF WISE POLICY UNDER THE RUBRIC OF MORE OR LESS
UNIVERSALLY HELD STANDARDS OF DECENCY.  SEE TROP V. DULLES, 356 U.S.,AT
103 (WARREN, C.J.), 119-120 (FRANKFURTER, J., DISSENTING); LOUISIANA EX
REL. FRANCIS V. RESWEBER, 329 U.S.AT 470-471 (FRANKFURTER, J.,
CONCURRING); WEEMS V. UNITED STATES, 217 U.S.,AT 378-379 (MCKENNA,
J.). 

THE SECOND CONSIDERATION DICTATING JUDICIAL SELF-RESTRAINT ARISES
FROM A PROPER RECOGNITION OF THE RESPECTIVE ROLES OF THE LEGISLATIVE
AND JUDICIAL BRANCHES.  THE DESIGNATION OF PUNISHMENTS FOR CRIMES IS A
MATTER PECULIARLY WITHIN THE SPHERE OF THE STATE AND FEDERAL
LEGISLATIVE BODIES.  SEE, E.G., IN RE KEMMLER, 136 U.S.,AT 447; TROP V.
DULLES, 356 U.S.,AT 103.  WHEN ASKED TO ENCROACH ON THE LEGISLATIVE
PREROGATIVE WE ARE WELL COUNSELED TO PROCEED WITH THE UTMOST
RETICENCE.  THE REVIEW OF LEGISLATIVE CHOICES, IN THE PERFORMANCE OF
OUR DUTY TO ENFORCE THE CONSTITUTION, HAS BEEN CHARACTERIZED MOST
APPROPRIATELY BY MR. JUSTICE HOLMES AS "THE GRAVEST AND MOST DELICATE
DUTY THAT THIS COURT IS CALLED ON TO PERFORM."  BLODGETT V. HOLDEN, 275
U.S. 142, 147-148 (1927) (SEPARATE OPINION).     HOW MUCH GRAVER IS
THAT DUTY WHEN WE ARE NOT ASKED TO PASS ON THE CONSTITUTIONALITY OF A
SINGLE PENALTY UNDER THE FACTS OF A SINGLE CASE BUT INSTEAD ARE URGED
TO OVERTURN THE LEGISLATIVE JUDGMENTS OF 40 STATE LEGISLATURES AS WELL
AS THOSE OF CONGRESS.  IN SO DOING IS THE MAJORITY ABLE TO CLAIM, AS
DID THE COURT IN WEEMS, THAT IT APPRECIATES "TO THE FULLEST THE WIDE
RANGE OF POWER THAT THE LEGISLATURE POSSESSES TO ADAPT ITS PENAL LAWS
TO CONDITIONS AS THEY MAY EXIST AND PUNISH THE CRIMES OF MEN ACCORDING
TO THEIR FORMS AND FREQUENCY"?  217 U.S.AT 379.  I THINK NOT.  NO MORE
ELOQUENT STATEMENT OF THE ESSENTIAL SEPARATION OF POWERS LIMITATION ON
OUR PREROGATIVE CAN BE FOUND THAN THE ADMONITION OF MR. JUSTICE
FRANKFURTER, DISSENTING IN TROP.  HIS ARTICULATION OF THE TRADITIONAL
VIEW TAKES ON ADDED SIGNIFICANCE WHERE THE COURT UNDERTAKES TO NULLIFY
THE LEGISLATIVE JUDGMENTS OF THE CONGRESS AND FOUR-FIFTHS OF THE
STATES. 

"WHAT IS ALWAYS BASIC WHEN THE POWER OF CONGRESS TO ENACT
LEGISLATION IS CHALLENGED IS THE APPROPRIATE APPROACH TO JUDICIAL
REVIEW OF CONGRESSIONAL LEGISLATION . . . . WHEN THE POWER OF CONGRESS
TO PASS A STATUTE IS CHALLENGED, THE FUNCTION OF THIS COURT IS TO
DETERMINE WHETHER LEGISLATIVE ACTION LIES CLEARLY OUTSIDE THE
CONSTITUTIONAL GRANT OF POWER TO WHICH IT HAS BEEN, OR MAY FAIRLY BE,
REFERRED.  IN MAKING THIS DETERMINATION, THE COURT SITS IN JUDGMENT ON
THE ACTION OF A CO-ORDINATE BRANCH OF THE GOVERNMENT WHILE KEEPING UNTO
ITSELF-- AS IT MUST UNDER OUR CONSTITUTIONAL SYSTEM-- THE FINAL
DETERMINATION OF ITS OWN POWER TO ACT.  . . . 

     "RIGOROUS OBSERVANCE OF THE DIFFERENCE BETWEEN LIMITS OF POWER

  AND WISE EXERCISE OF POWER-- BETWEEN QUESTIONS OF AUTHORITY AND

  QUESTIONS OF PRUDENCE-- REQUIRES THE MOST ALERT APPRECIATION OF

  THIS DECISIVE BUT SUBTLE RELATIONSHIP OF TWO CONCEPTS THAT TOO

  EASILY COALESCE.  NO LESS DOES IT REQUIRE DISCIPLINED WILL TO

  ADHERE TO THE DIFFERENCE. 

IT IS NOT EASY TO

  STAND ALOOF AND ALLOW WANT OF WISDOM TO PREVAIL, TO DISREGARD
ONE'S OWN STRONGLY HELD VIEW OF

  WHAT IS WISE IN THE CONDUCT OF AFFAIRS.  BUT IT IS NOT THE
BUSINESS OF THIS COURT TO PRONOUNCE

  POLICY.  IT MUST OBSERVE A FASTIDIOUS REGARD FOR LIMITATIONS ON
ITS OWN POWER, AND THIS

  PRECLUDES THE COURT'S GIVING EFFECT TO ITS OWN NOTIONS OF WHAT IS
WISE OR POLITIC.  THAT

  SELF-RESTRAINT IS OF THE ESSENCE IN THE OBSERVANCE OF THE
JUDICIAL OATH, FOR THE CONSTITUTION

  HAS NOT AUTHORIZED THE JUDGES TO SIT IN JUDGMENT ON THE WISDOM OF
WHAT CONGRESS AND THE

  EXECUTIVE BRANCH DO."  356 U.S.,AT 119-120.  SEE ALSO MR. JUSTICE
WHITE'S DISSENTING OPINION IN WEEMS V. UNITED STATES, 217 U.S.AT 382. 

        IV 

ALTHOUGH DETERMINING THE RANGE OF AVAILABLE PUNISHMENTS FOR A
PARTICULAR CRIME IS A LEGISLATIVE FUNCTION, THE VERY PRESENCE OF THE
CRUEL AND UNUSUAL PUNISHMENTS CLAUSE WITHIN THE BILL OF RIGHTS
REQUIRES, IN THE CONTEXT OF A SPECIFIC CASE, THAT COURTS DECIDE WHETHER
PARTICULAR ACTS OF THE CONGRESS OFFEND THAT AMENDMENT.  THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT IMPOSES ON THE JUDICIARY A SIMILAR
OBLIGATION TO SCRUTINIZE STATE LEGISLATION.  BUT THE PROPER EXERCISE OF
THAT CONSTITUTIONAL OBLIGATION IN THE CASES BEFORE US TODAY MUST BE
FOUNDED ON A FULL RECOGNITION OF THE SEVERAL CONSIDERATIONS SET FORTH
ABOVE-- THE AFFIRMATIVE REFERENCES TO CAPITAL PUNISHMENT IN THE
CONSTITUTION, THE PREVAILING PRECEDENTS OF THIS COURT, THE LIMITATIONS
ON THE EXERCISE OF OUR POWER IMPOSED BY TESTED PRINCIPLES OF JUDICIAL
SELF-RESTRAINT, AND THE DUTY TO AVOID ENCROACHMENT ON THE POWERS
CONFERRED UPON STATE AND FEDERAL LEGISLATURES.  IN THE FACE OF THESE
CONSIDERATIONS, ONLY THE MOST CONCLUSIVE OF OBJECTIVE DEMONSTRATIONS
COULD WARRANT THIS COURT IN HOLDING CAPITAL PUNISHMENT PER SE
UNCONSTITUTIONAL.  THE BURDEN OF SEEKING SO SWEEPING A DECISION AGAINST
SUCH FORMIDABLE OBSTACLES IS ALMOST INSUPERABLE.  VIEWED FROM THIS
PERSPECTIVE, AS I BELIEVE IT MUST BE, THE CASE AGAINST THE DEATH
PENALTY FAILS FAR SHORT. 

PETITIONERS' CONTENTIONS ARE PREMISED, AS INDICATED ABOVE, ON THE
LONG-ACCEPTED VIEW THAT CONCEPTS EMBODIED IN THE EIGHTH AND FOURTEENTH
AMENDMENTS EVOLVE.  THEY PRESENT, WITH SKILL AND PERSISTENCE, A LIST OF
"OBJECTIVE INDICATORS" WHICH ARE SAID TO DEMONSTRATE THAT PREVAILING
STANDARDS OF HUMAN DECENCY HAVE PROGRESSED TO THE FINAL POINT OF
REQUIRING THE COURT TO HOLD, FOR ALL CASES AND FOR ALL TIME, THAT
CAPITAL PUNISHMENT IS UNCONSTITUTIONAL. 

BRIEFLY SUMMARIZED, THESE PROFFERED INDICIA OF CONTEMPORARY
STANDARDS OF DECENCY INCLUDE THE FOLLOWING:  (I) A WORLDWISE TREND
TOWARD THE DISUSE OF THE DEATH PENALTY; /16/  (II) THE REFLECTION IN
THE SCHOLARLY LITERATURE OF A PROGRESSIVE REJECTION OF CAPITAL
PUNISHMENT FOUNDED ESSENTIALLY ON MORAL OPPOSITION TO SUCH TREATMENT;
/17/  (III) THE DECREASING NUMBERS OF EXECUTIONS OVER THE LAST 40 YEARS
AND ESPECIALLY OVER THE LAST DECADE; /18/  (IV) THE SMALL NUMBER OF
DEATH SENTENCES RENDERED IN RELATION TO THE NUMBER OF CASES IN WHICH
THEY MIGHT HAVE BEEN IMPOSED; /19/  AND (B) THE INDICATION OF PUBLIC
ABHORRENCE OF THE PENALTY REFLECTED IN THE CIRCUMSTANCE THAT EXECUTIONS
ARE NO LONGER PUBLIC AFFAIRS.  /20/  THE FOREGOING IS AN INCOMPLETE
SUMMARY BUT IT TOUCHES THE MAJOR BASES OF PETITIONERS' PRESENTATION. 
ALTHOUGH THEY ARE NOT APPROPRIATE FOR CONSIDERATION AS OBJECTIVE
EVIDENCE, PETITIONERS STRONGLY URGE TWO ADDITIONAL PROPOSITIONS.  THEY
CONTEND, FIRST, THAT THE PENALTY SURVIVES PUBLIC CONDEMNATION ONLY
THROUGH THE INFREQUENCY, ARBITRARINESS, AND DISCRIMINATORY NATURE OF
ITS APPLICATION, AND, SECOND, THAT THERE NO LONGER EXISTS ANY
LEGITIMATE JUSTIFICATION FOR THE UTILIZATION OF THE ULTIMATE PENALTY. 
THESE CONTENTIONS, WHICH HAVE PROVED PERSUASIVE TO SEVERAL OF THE
JUSTICES CONSTITUTING THE MAJORITY, DESERVE SEPARATE CONSIDERATION AND
WILL BE CONSIDERED IN THE ENSUING SECTIONS.  BEFORE TURNING TO THOSE
ARGUMENTS, I FIRST ADDRESS THE ARGUMENT BASED ON "OBJECTIVE" FACTORS. 

ANY ATTEMPT TO DISCERN CONTEMPORARY STANDARDS OF DECENCY THROUGH THE
REVIEW OF OBJECTIVE FACTORS MUST TAKE INTO ACCOUNT SEVERAL OVERRIDING
CONSIDERATIONS WHICH PETITIONERS CHOOSE TO DISCOUNT OR IGNORE.  IN A
DEMOCRACY THE FIRST INDICATOR OF THE PUBLIC'S ATTITUDE MUST ALWAYS BE
FOUND IN THE LEGISLATIVE JUDGMENTS OF THE PEOPLE'S CHOSEN
REPRESENTATIVES.  MR. JUSTICE MARSHALL'S OPINION TODAY CATALOGUES THE
SALIENT STATISTICS.  FORTY STATES, /21/  THE DISTRICT OF COLUMBIA, AND
THE FEDERAL GOVERNMENT STILL AUTHORIZE THE DEATH PENALTY FOR A WIDE
VARIETY OF CRIMES.  THAT NUMBER HAS REMAINED RELATIVELY STATIC SINCE
THE END OF WORLD WAR I. ANTE, AT 339-341.  THAT DOES NOT MEAN, HOWEVER,
THAT CAPITAL PUNISHMENT HAS BECOME A FORGOTTEN ISSUE IN THE LEGISLATIVE
ARENA.  AS RECENTLY AS JANUARY, 1971, CONGRESS APPROVED THE DEATH
PENALTY FOR CONGRESSIONAL ASSASSINATION.  18 U.S.C. 351.  IN 1965
CONGRESS ADDED THE DEATH PENALTY FOR PRESIDENTIAL AND VICE PRESIDENTIAL
ASSASSINATIONS.  18 U.S.C. 1472(I).  MR. JUSTICE BLACKMUN'S DISSENTING
OPINION CATALOGUES THE IMPRESSIVE CASE WITH WHICH EACH OF THESE
STATUTES WAS APPROVED.  ANTE, AT 412-413.  ON THE CONVERSE SIDE, A BILL
PROPOSING THE ABOLITION OF CAPITAL PUNISHMENT FOR ALL FEDERAL CRIMES
WAS INTRODUCED IN 1967 BUT FAILED TO REACH THE SENATE FLOOR.  /22/ 

AT THE STATE LEVEL, NEW YORK, AMONG OTHER STATES, HAS RECENTLY
UNDERTAKEN RECONSIDERATION OF ITS CAPITAL CRIMES.  A LAW PASSED IN 1965
RESTRICTED THE USE OF CAPITAL PUNISHMENT TO THE CRIMES OF MURDER OF A
POLICE OFFICER AND MURDER BY A PERSON SERVING A SENTENCE OF LIFE
IMPRISONMENT.  N.Y. PENAL CODE SEC. 125.30 (1967). 

I PAUSE HERE TO STATE THAT I AM AT A LOSS TO UNDERSTAND HOW THOSE
URGING THIS COURT TO PURSUE A COURSE OF ABSOLUTE ABOLITION AS A MATTER
OF CONSTITUTIONAL JUDGMENT CAN DRAW ANY SUPPORT FROM THE NEW YORK
EXPERIENCE.  AS IS ALSO THE CASE WITH RESPECT TO RECENT LEGISLATIVE
ACTIVITY IN CANADA, /23/  AND GREAT BRITAIN, /24/  NEW YORK'S DECISION
TO RESTRICT THE AVAILABILITY OF THE DEATH PENALTY IS A PRODUCT OF
REFINED AND DISCRIMINATING LEGISLATIVE JUDGMENT, REFLECTING, NOT THE
TOTAL REJECTION OF CAPITAL PUNISHMENT AS INHERENTLY CRUEL, BUT A DESIRE
TO LIMIT IT TO THOSE CIRCUMSTANCES IN WHICH LEGISLATIVE JUDGMENT DEEMS
RETENTION TO BE IN THE PUBLIC INTEREST.  NO SUCH LEGISLATIVE
FLEXIBILITY IS PERMITTED BY THE CONTRARY COURSE PETITIONERS URGE THIS
COURT TO FOLLOW.  /25/ 

IN ADDITION TO THE NEW YORK EXPERIENCE, A NUMBER OF OTHER STATES
HAVE UNDERTAKEN RECONSIDERATION OF CAPITAL PUNISHMENT IN RECENT YEARS. 
IN FOUR STATES THE PENALTY HAS BEEN PUT TO A VOTE OF THE PEOPLE THROUGH
PUBLIC REFERENDA-- A MEANS LIKELY TO SUPPLY OBJECTIVE EVIDENCE OF
COMMUNITY STANDARDS.  IN OREGON A REFERENDUM SEEKING ABOLITION OF
CAPITAL PUNISHMENT FAILED IN 1958 BUT WAS SUBSEQUENTLY APPROVED IN
1964.  /26/  TWO YEARS LATER THE PENALTY WAS APPROVED IN COLORADO BY A
WIDE MARGIN.  /27/  IN MASSACHUSETTS IN 1968, IN AN ADVISORY
REFERENDUM, THE VOTERS THERE LIKEWISE RECOMMENDED RETENTION OF THE
PENALTY.  IN 1970, APPROXIMATELY 64% OF THE VOTERS IN ILLINOIS APPROVED
THE PENALTY.  /28/  IN ADDITION, THE NATIONAL COMMISSION ON REFORM OF
FEDERAL CRIMINAL LAWS REPORTS THAT LEGISLATIVE COMMITTEES IN
MASSACHUSETTS, PENNSYLVANIA, AND MARYLAND RECOMMENDED ABOLITION, WHILE
COMMITTEES IN NEW JERSEY AND FLORIDA RECOMMENDED RETENTION.  /29/  THE
LEGISLATIVE VIEWS OF OTHER STATES HAVE BEEN SUMMARIZED BY PROFESSOR
HUGO BEDAU IN HIS COMPILATION OF COURSES ON CAPITAL PUNISHMENT ENTITLED
THE DEATH PENALTY IN AMERICA: 

     "WHAT OUR LEGISLATIVE REPRESENTATIIVES THINK IN THE TWO SCORE

STATES WHICH STILL HAVE THE DEATH PENALTY MAY BE INFERRED FROM

  THE FATE OF THE BILLS TO REPEAL OR MODIFY THE DEATH PENALTY FILED

  DURING RECENT YEARS IN THE LEGISLATURES OF MORE THAN HALF OF

  THESE STATES.  IN ABOUT A DOZEN INSTANCES, THE BILLS EMERGED FROM

  COMMITTEE FOR A VOTE.  BUT IN NONE EXCEPT DELAWARE DID THEY

  BECOME LAW.  IN THOSE STATES WHERE THESE BILLS WERE BROUGHT TO

  THE FLOOR OF THE LEGISLATURES, THE VOTE IN MOST INSTANCES WASN'T

  EVEN CLOSE."  /30/

THIS RECENT HISTORY OF ACTIVITY WITH RESPECT TO LEGISLATION CONCERNING
THE DEATH PENALTY ABUNDANTLY REFUTES THE ABOLITIONIST POSITION. 

THE SECOND AND EVEN MORE DIRECT SOURCE OF INFORMATION REFLECTING THE
PUBLIC'S ATTITUDE TOWARD CAPITAL PUNISHMENT IS THE JURY.  IN
WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968), MR. JUSTICE STEWART,
JOINED BY JUSTICES BRENNAN AND MARSHALL, CHARACTERIZED THE JURY'S
HISTORIC FUNCTION IN THE SENTENCING PROCESS IN THE FOLLOWING TERMS: 

"(THE JURY IS GIVEN BROAD DISCRETION TO DECIDE WHETHER OR NOT DEATH
IS 'THE PROPER PENALTY' IN A GIVEN CASE, AND A JUROR'S GENERAL VIEWS
ABOUT CAPITAL PUNISHMENT PLAY AN INEVITABLE ROLE IN ANY SUCH DECISION. 

     "A MAN WHO OPPOSES THE DEATH PENALTY, NO LESS THAN ONE WHO

  FAVORS IT, CAN MAKE THE DISCRETIONARY JUDGMENT ENTRUSTED TO HIM

  BY THE STATE AND CAN THUS OBEY THE OATH HE TAKES AS A JUROR.  . .

  . GUIDED BY NEITHER RULE NOR STANDARD, . . . A JURY THAT MUST

  CHOOSE BETWEEN LIFE IMPRISONMENT AND CAPITAL PUNISHMENT CAN DO

  LITTLE MORE-- AND MUST DO NOTHING LESS-- THAN EXPRESS THE

  CONSCIENCE OF THE COMMUNITY ON THE ULTIMATE QUESTION OF LIFE OR

  DEATH."  "(ONE OF THE MOST IMPORTANT FUNCTIONS ANY JURY CAN

  PERFORM IN MAKING SUCH A SELECTION IS TO MAINTAIN A LINK BETWEEN

  CONTEMPORARY COMMUNITY VALUES AND THE PENAL SYSTEM-- A LINK

  WITHOUT WHICH THE DETERMINATION OF PUNISHMENT COULD HARDLY

  REFLECT 'THE EVOLVING STANDARDS OF DECENCY THAT MARK THE PROGRESS

  OF A MATURING SOCIETY.'  TROP V. DULLES, . . . "  /31/ 

ANY ATTEMPT TO DISCERN, THEREFORE, WHERE THE PREVAILING STANDARDS OF
DECENCY LIE MUST TAKE CAREFUL ACCOUNT OF THE JURY'S RESPONSE TO THE
QUESTION OF CAPITAL PUNISHMENT.  DURING THE 1960'S JURIES RETURNED IN
EXCESS OF A THOUSAND DEATH SENTENCES, A RATE OF APPROXIMATELY TWO PER
WEEK.  WHETHER IT IS TRUE THAT DEATH SENTENCES WERE RETURNED IN LESS
THAN 10% OF THE CASES AS PETITIONERS ESTIMATE OR WHETHER SOME HIGHER
PERCENTAGE IS MORE ACCURATE, /32/  THESE TOTALS SIMPLY DO NOT SUPPORT
PETITIONERS'  ASSERTION AT ORAL ARGUMENT THAT "THE DEATH PENALTY IS
VIRTUALLY UNANIMOUSLY REPUDIATED AND CONDEMNED BY THE CONSCIENCE OF
CONTEMPORARY SOCIETY."  /33/  IT IS ALSO WORTHY OF NOTE THAT THE ANNUAL
RATE OF DEATH SENTENCES HAS REMAINED RELATIVELY CONSTANT OVER THE LAST
10 YEARS AND THAT THE FIGURE FOR 1970-- 127 SENTENCES00 IS THE HIGHEST
ANNUAL TOTAL SINCE 1961.  /34/  IT IS TRUE THAT THE SENTENCING RATE
MIGHT BE EXPECTED TO RISE, RATHER THAN REMAIN CONSTANT, WHEN THE NUMBER
OF VIOLENT CRIMES INCREASES AS IT HAS IN THIS COUNTRY.  /35/  AND IT
MAY BE CONCEDED THAT THE CONSTANCY IN THESE STATISTICS INDICATES THE
UNWILLINGNESS OF JURIES TO DEMAND THE ULTIMATE PENALTY IN MANY CASES
WHERE IT MIGHT BE IMPOSED.  BUT THESE CONSIDERATIONS FALL SHORT OF
INDICATING THAT JURIES ARE IMPOSING THE DEATH PENALTY WITH SUCH RARITY
AS TO JUSTIFY THIS COURT IN READING INTO THIS CIRCUMSTANCE A PUBLIC
REJECTION OF CAPITAL PUNISHMENT.  /36/ 

ONE MUST CONCLUDE, CONTRARY TO PETITIONERS' SUBMISSION, THAT THE
INDICATORS MOST LIKELY TO REFLECT THE PUBLIC'S VIEW-- LEGISLATIVE
BODIES, STATE REFERENDA AND THE JURIES WHICH HAVE THE ACTUAL
RESPONSIBILITY-- DO NOT SUPPORT THE CONTENTION THAT EVOLVING STANDARDS
OF DECENCY REQUIRE TOTAL ABOLITION OF CAPITAL PUNISHMENT.  /37/
INDEED, THE WEIGHT OF THE EVIDENCE INDICATES THAT THE PUBLIC GENERALLY
HAS NOT ACCEPTED EITHER THE MORALITY OR THE SOCIAL MERIT OF THE VIEWS
SO PASSIONATELY ADVOCATED BY THE ARTICULATE SPOKESMEN FOR ABOLITION. 
BUT HOWEVER ONE MAY ASSESS THE AMORPHOUS EBB AND FLOW OF PUBLIC OPINION
GENERALLY ON THIS VOLATILE ISSUE, THIS TYPE OF INQUIRY LIES AT THE
PERIPHERY-- NOT THE CORE-- OF THE JUDICIAL PROCESS IN CONSTITUTIONAL
CASES.  THE ASSESSMENT OF POPULAR OPINION IS ESSENTIALLY A LEGISLATIVE,
NOT A JUDICIAL, FUNCTION.              V 

PETITIONERS SEEK TO SALVAGE THEIR THESIS BY ARGUING THAT THE
INFREQUENCY AND DISCRIMINATORY NATURE OF THE ACTUAL RESORT TO THE
ULTMATE PENALTY TEND TO DIFFUSE PUBLIC OPPOSITION.  WE ARE TOLD THAT
THE PENALTY IS IMPOSED EXCLUSIVELY ON UNINFLUENTIAL MINORITIES-- "THE
POOR AND POWERLESS, PERSONALLY UGLY AND SOCIALLY UNACCEPTABLE."  /38/
IT IS URGED THAT THIS PATTERN OF APPLICATION ASSURES THAT LARGE
SEGMENTS OF THE PUBLIC WILL BE EITHER UNINFORMED OR UNCONCERNED AND
WILL HAVE NO REASON TO MEASURE THE PUNISHMENT AGAINST PREVAILING MORAL
STANDARDS. 

IMPLICITLY, THIS ARGUMENT CONCEDES THE UNSOUNDNESS OF PETITIONERS'
CONTENTION, EXAMINED ABOVE UNDER PART IV, THAT OBJECTIVE EVIDENCE SHOWS
A PRESENT AND WIDESPREAD COMMUNITY REJECTION OF THE DEATH PENALTY.  IT
IS NOW SAID, IN EFFECT, NOT THAT CAPITAL PUNISHMENT PRESENTLY OFFENDS
OUR CITIZENRY, BUT THAT THE PUBLIC WOULD BE OFFENDED IF THE PENALTY
WERE ENFORCED IN A NONDISCRIMINATORY MANNER AGAINST A SIGNIFICANT
PERCENTAGE OF THOSE CHARGED WITH CAPITAL CRIMES, AND IF THE PUBLIC WRE
THEREBY MADE AWARE OF THE MORAL ISSUES SURROUNDING CAPITAL PUNISHMENT. 
RATHER THAN MERELY REGISTERING THE OBJECTIVE INDICATORS ON A JUDICIAL
BALANCE, WE ARE ASKED ULTIMATELY TO REST A FAR-REACHING CONSTITUTIONAL
DETERMINATION ON A PREDICTION REGARDING THE SUBJECTIVE JUDGMENTS OF THE
MASS OF OUR PEOPLE UNDER HYPOTHETICAL ASSUMPTIONS THAT MAY OR MAY NOT
BE REALISTIC. 

APART FROM THE IMPERMISSIBILITY OF BASING A CONSTITUTIONAL JUDGMENT
OF THIS MAGNITUDE ON SUCH SPECULATIVE ASSUMPTIONS, THE ARGUMENT SUFFERS
FROM OTHER DEFECTS.  IF, AS PETITIONERS URGE, WE ARE TO ENGAGE IN
SPECULATION, IT IS NOT AT ALL CERTAIN THAT THE PUBLIC WOULD EXPERIENCE
DEEP-FELT REVULSION IF THE STATES WERE TO EXECUTE AS MANY SENTENCED
CAPITAL OFFENDERS THIS YEAR AS THEY EXECUTED IN THE MID-1930'S.  /39/
IT SEEMS MORE LIKELY THAT PUBLIC REACTION, RATHER THAN BEING
CHARACTERIZED BY UNDIFFERENTIATED REJECTION, WOULD DEPEND UPON THE
FACTS AND CIRCUMSTANCES SURROUNDING EACH PARTICULAR CASE. 

MEMBERS OF THIS COURT KNOW, FROM THE PETITIONS AND APPEALS THAT COME
BEFORE US REGULARLY, THAT BRUTISH AND REVOLTING MURDERS CONTINUE TO
OCCUR WITH DISQUIETING FREQUENCY.  INDEED, MURDERS ARE SO COMMONPLACE
IN OUR SOCIETY THAT ONLY THE MOST SENSATIONAL RECEIVE SIGNIFICANT AND
SUSTAINED PUBLICITY.  IT COULD HARDLY BE SUGGESTED THAT IN ANY OF THESE
HIGHLY PUBLICIZED MURDER CASES-- THE SEVERAL SENSELESS ASSASSINATIONS
OR THE TOO NUMEROUS SHOCKING MULTIPLE MURDERS THAT HAVE STAINED THIS
COUNTRY'S RECENT HISTORY-- THE PUBLIC HAS EXHIBITED ANY SIGNS OF
"REVULSION" AT THE THOUGHT OF EXECUTING THE CONVICTED MURDERERS.  THE
PUBLIC OUTCRY, AS WE ALL KNOW, HAS BEEN QUITE TO THE CONTRARY. 
FURTHERMORE, THERE IS LITTLE REASON TO SUSPECT THAT THE PUBLIC'S
REACTION WOULD DIFFER SIGNIFICANTLY IN RESPNSE TO OTHER LESS PUBLICIZED
MURDERS.  IT IS CERTAINLY ARGUABLE THAT MANY SUCH MURDERS, BECAUSE OF
THEIR SENSELESSNESS OR BARBAROUSNESS, WOULD EVOKE A PUBLIC DEMAND FOR
THE DEATH PENALTY RATHER THAN A PUBLIC REJECTION OF THAT ALTERNATIVE. 
NOR IS THERE ANY RATIONAL BASIS FOR ARGUING THAT THE PUBLIC REACTION TO
ANY OF THESE CRIMES WOULD BE MUTED IF THE MURDERER WERE "RICH AND
POWERFUL."  THE DEMAND FOR THE ULTIMATE SANCTION MIGHT WELL BE GREATER,
AS A WEALTHY KILLER IS HARDLY A SYMPATHETIC FIGURE.  WHILE THERE MIGHT
BE SPECIFIC CASES IN WHICH CAPITAL PUNISHMENT WOULD BE REGARDED AS
EXCESSIVE AND SHOCKING TO THE CONSCIENCE OF THE COMMUNITY, IT CAN
HARDLY BE ARGUED THAT THE PUBLIC'S DISSATISFACTION WITH THE PENALTY IN
PARTICULAR CASES WOULD TRANSLATE INTO A DEMAND FOR ABSOLUTE ABOLITION. 

IN PURSUING THE FOREGOING SPECULATION, I DO NOT SUGGEST THAT IT IS
RELEVANT TO THE APPROPRIATE DISPOSITION OF THESE CASES.  THE PURPOSE OF
THE DIGRESSION IS TO INDICATE THAT JUDICIAL DECISIONS CANNOT BE FOUNDED
ON SUCH SPECULATIONS AND ASSUMPTIONS, HOWEVER APPEALING THEY MAY SEEM. 

BUT THE DISCRIMINATION ARGUMENT DOES NOT REST ALONE ON A PROJECTION
OF THE ASSUMED EFFECT ON PUBLIC OPINION OF MORE FREQUENT EXECUTIONS. 
MUCH ALSO IS MADE OF THE UNDENIABLE FACT THAT THE DEATH PENALTY HAS A
GREATER IMPACT ON THE LOWER ECONOMIC STRATA OF SOCIETY, WHICH INCLUDE A
RELATIVELY HIGHER PERCENTAGE OF PERSONS OF MINORITY RACIAL AND ETHNIC
GROUP BACKGROUNDS.  THE ARGUMENT DRAWN FROM THIS FACT IS TWO-PRONGED. 
IN PART IT IS MERELY AN EXTENSION OF THE SPECULATIVE APPROACH PURSUED
BY PETITIONERS, I.E., THAT PUBLIC REVULSION IS SUPPRESSED IN CALLOUS
APATHY BECAUSE THE PENALTY DOES NOT AFFECT PERSONS FROM THE WHITE
MIDDLE CLASS WHICH CONSTITUTES THE MAJORITY IN THIS COUNTRY.  THIS
ASPECT, HOWEVER, ADDS LITTLE TO THE INFREQUENCY RATIONALIZATION FOR
PUBLIC APATHY WHICH I HAVE FOUND UNPERSUASIVE. 

AS MR. JUSTICE MARSHALL'S OPINION TODAY DEMONSTRATES, THE ARGUMENT
DOES HAVE A MORE TROUBLING ASPECT.  IT IS HIS CONTENTION THAT IF THE
AVERAGE CITIZEN WERE AWARE OF THE DISPROPORTIONATE BURDEN OF CAPITAL
PUNISHMENT BORNE BY THE "POOR, THE IGNORANT, AND THE UNDERPRIVILEGED,"
HE WOULD FIND THE PENALTY "SHOCKING TO HIS CONSCIENCE AND SENSE OF
JUSTICE" AND WOULD NOT STAND FOR ITS FURTHER USE.  ANTE, AT 365-366,
369.  THIS ARGUMENT, LIKE THE APATHY RATIONALE, CALLS FOR FURTHER
SPECULATION ON THE PART OF THE COURT.  IT ALSO ILLUMINATES THE
QUICKSANDS UPON WHICH WE ARE ASKED TO BASE THIS DECISION.  INDEED, THE
TWO CONTENTIONS SEEM TO REQUIRE CONTRADICTORY ASSUMPTIONS REGARDING THE
PUBLIC'S MORAL ATTITUDE TOWARD CAPITAL PUNISHMENT.  THE APATHY ARGUMENT
IS PREDICATED ON THE ASSUMPTION THAT THE PENALTY IS USED AGAINST THE
LESS INFLUENTIAL ELEMENTS OF SOCIETY, THAT THE PUBLIC IS FULLY AWARE OF
THIS, AND THAT IT TOLERATES USE OF CAPITAL PUNISHMENT ONLY BECAUSE OF A
CALLOUS INDIFFERENCE TO THE OFFENDERS WHO ARE SENTENCED.  MR. JUSTICE
MARSHALL'S ARGUMENT, ON THE OTHER HAND, RESTS ON THE CONTRARY
ASSUMPTION THAT THE PUBLIC DOES NOT KNOW AGAINST WHOM THE PENALTY IS
ENFORCED AND THAT IF THE PUBLIC WERE EDUCATED TO THIS FACT IT WOULD
FIND THE PUNISHMENT INTOLERABLE.  ANTE, AT 369.  NEITHER ASSUMPTION CAN
CLAIM TO BE AN ENTIRELY ACCURATE PORTRAYAL OF PUBLIC ATTITUDE; FOR SOME
ACCEPTANCE OF CAPITAL PUNISHMENT MIGHT BE A CONSEQUENCE OF HARDENED
APATHY BASED ON THE KNOWLEDGE OF INFREQUENT AND UNEVEN APPLICATION,
WHILE FOR OTHERS ACCEPTANCE MAY GROW ONLY OUT OF IGNORANCE.  MORE
SIGNIFICANTLY, HOWEVER, NEITHER SUPPOSITION ACKNOWLEDGES WHAT, FOR ME,
IS A MORE BASIC FLAW. 

CERTAINLY THE CLAIM IS JUSTIFIED THAT THIS CRIMINAL SANCTION FALLS
MORE HEAVILY ON THE RELATIVELY IMPOVERISHED AND UNDERPRIVILEGED
ELEMENTS OF SOCIETY.  THE "HAVE-NOTS" IN EVERY SOCIETY ALWAYS HAVE BEEN
SUBJECT TO GREATER PRESSURE TO COMMIT CRIMES AND TO FEWER CONSTRAINTS
THAN THEIR MORE AFFLUENT FELLOW CITIZENS.  THIS IS, INDEED, A TRAGIC
BYPRODUCT OF SOCIAL AND ECONOMIC DEPRIVATION, BUT IT IS NOT AN ARGUMENT
OF CONSTITUTIONAL PROPORTIONS UNDER THE EIGHTH OR FOURTEENTH
AMENDMENT.  THE SAME DISCRIMINATORY IMPACT ARGUMENT COULD BE MADE WITH
EQUAL FORCE AND LOGIC WITH RESPECT TO THOSE SENTENCED TO PRISON TERMS. 
THE DUE PROCESS CLAUSE ADMITS OF NO DISTINCTION BETWEEN THE DEPRIVATION
OF "LIFE" AND THE DEPRIVATION OF "LIBERTY."  IF DISCRIMINATORY IMPACT
RENDERS CAPITAL PUNISHMENT CRUEL AND UNUSUAL, IT LIKEWISE RENDERS
INVALID MOST OF THE PRESCRIBED PENALTIES FOR CRIMES OF VIOLENCE.  THE
ROOT CAUSES OF THE HIGHER INCIDENCE OF CRIMINAL PENALTIES ON
"MINORITIES AND THE POOR" WILL NOT BE CURED BY ABOLISHING THE SYSTEM OF
PENALTIES.  NOR, INDEED, COULD ANY SOCIETY HAVE A VIABLE SYSTEM OF
CRIMINAL JUSTICE IF SANCTIONS WERE ABOLISHED OR AMELIORATED BECAUSE
MOST OF THOSE WHO COMMIT CRIMES HAPPEN TO BE UNDERPRIVILEGED.  THE
BASIC PROBLEM RESULTS NOT FROM THE PENALTIES IMPOSED FOR CRIMINAL
CONDUCT BUT FROM SOCIAL AND ECONOMIC FACTORS THAT HAVE PLAGUED HUMANITY
SINCE THE BEGINNING OF RECORDED HISTORY, FRUSTRATING ALL EFFORTS TO
CREATE IN ANY COUNTRY AT ANY TIME THE PERFECT SOCIETY IN WHICH THERE
ARE NO "POOR," NO "MINORITIES" AND NO "UNDERPRIVILEGED."  /40/  THE
CAUSES UNDERLYING THIS PROBLEM ARE UNRELATED TO THE CONSTITUTIONAL
ISSUE BEFORE THE COURT. 

FINALLY, YET ANOTHER THEORY FOR ABOLISHING THE DEATH PENALTY--
REFLECTED IN VARYING DEGREES IN EACH OF THE CONCURRING OPINIONS TODAY--
IS PREDICATED ON THE DISCRIMINATORY IMPACT ARGUMENT.  QUITE APART FROM
MEASURING THE PUBLIC'S ACCEPTANCE OR REJECTION OF THE DEATH PENALTY
UNDER THE "STANDARDS OF DECENCY" RATIONALE, MR. JUSTICE DOUGLAS FINDS
THE PUNISHMENT CRUEL AND UNUSUAL BECAUSE IT IS "ARBITRARILY" INVOKED. 
HE FINDS THAT "THE BASIC THEME OF EQUAL PROTECTION IS IMPLICIT" IN THE
EIGHTH AMENDMENT, AND THAT THE AMENDMENT IS VIOLATED WHEN JURY
SENTENCING MAY BE CHARACTERIZED AS ARBITRARY OR DISCRIMINATORY.  ANTE,
AT 249.  WHILE MR. JUSTICE STEWART DOES NOT PURPORT TO RELY ON NOTIONS
OF EQUAL PROTECTION, HE ALSO RESTS PRIMARILY ON WHAT HE VIEWS TO BE A
HISTORY OF ARBITRARINESS.  ANTE, AT 309-310.  /41/  WHATEVER MAY BE THE
FACTS WITH RESPECT TO JURY SENTENCING, THIS ARGUMENT CALLS FOR A
RECONSIDERATION OF THE "STANDARDS" ASPECTS OF THE COURT'S DECISION IN
MCGAUTHA V. CALIFORNIA, 402 U.S. 183 (1971).  ALTHOUGH THAT IS THE
UNMISTAKABLE THRUST OF THESE OPINIONS TODAY, I SEE NO REASON TO
REASSESS THE STANDARDS QUESTION CONSIDERED SO CAREFULLY IN MR. JUSTICE
HARLAN'S OPINION FOR THE COURT LAST TERM.  HAVING SO RECENTLY
REAFFIRMED OUR HISTORIC DEDICATION TO ENTRUSTING THE SENTENCING
FUNCTION TO THE JURY'S "UNTRAMMELED DISCRETION" (ID., AT 207), IT IS
DIFFICULT TO SEE HOW THE COURT CAN NOW HOLD THE ENTIRE PROCESS
CONSTITUTIONALLY DEFECTIVE UNDER THE EIGHTH AMENDMENT.  FOR ALL OF
THESE REASONS I FIND LITTLE MERIT IN THE VARIOUS DISCRIMINATION
ARGUMENTS, AT LEAST IN THE SEVERAL LIGHTS IN WHICH THEY HAVE BEEN CAST
IN THESE CASES. 

ALTHOUGH NOT PRESENTED BY ANY OF THE PETITIONERS TODAY, A DIFFERENT
ARGUMENT, PREMISED ON THE EQUAL PROTECTION CLAUSE, MIGHT WELL BE MADE. 
IF A NEGRO DEFENDANT, FOR INSTANCE, COULD DEMONSTRATE THAT MEMBERS OF
HIS RACE WERE BEING SINGLED OUT FOR MORE SEVERE PUNISHMENT THAN OTHERS
CHARGED WITH THE SAME OFFENSE, A CONSTITUTIONAL VIOLATION MIGHT BE
ESTABLISHED.  THIS WAS THE CONTENTION MADE IN MAXWELL V. BISHOP, 398
F.2D 138 (CA8 1868), VACATED AND REMANDED ON OTHER GROUNDS, 398 U.S.
262 (1970), IN WHICH THE EIGHTH CIRCUIT WAS ASKED TO ISSUE A WRIT OF
HABEAS CORPUS SETTING ASIDE A DEATH SENTENCE IMPOSED ON A NEGRO
DEFENDANT CONVICTED OF RAPE.  IN THAT CASE SUBSTANTIAL STATISTICAL
EVIDENCE WAS INTRODUCED TENDING TO SHOW A PRONOUNCED DISPROPORTION IN
THE NUMBER OF NEGROES RECEIVING DEATH SENTENCES FOR RAPE IN PARTS OF
ARKANSAS AND ELSEWHERE IN THE SOUTH.  THAT EVIDENCE WAS NOT EXCLUDED
BUT WAS FOUND TO BE INSUFFICIENT TO SHOW DISCRIMINATION IN SENTENCING
IN MAXWELL'S TRIAL.  MR. JUSTICE BLACKMUN, THEN SITTING ON THE COURT OF
APPEALS FOR THE BRITISH CIRCUIT, CONCLUDED: 

     "THE PETITIONER'S ARGUMENT IS AN INTERESTING ONE AND WE ARE
NOT

  DISPOSED TO SAY THAT IT COULD NOT HAVE SOME VALIDITY AND WEIGHT

  IN CERTAIN SITUATIONS.  LIKE THE TRIAL COURT, HOWEVER . . . WE

  FEEL THAT THE ARGUMENT DOES NOT HAVE VALIDITY AND PERTINENT

  APPLICATION TO MAXWELL'S CASE. 

      "WE ARE NOT YET READY TO CONDEMN AND UPSET THE RESULT REACHED

  IN EVERY CASE OF A NEGRO RAPE DEFENDANT IN THE STATE OF ARKANSAS

  ON THE BASIS OF BROAD THEORIES OF SOCIAL AND STATISTICAL

  INJUSTICE.  . . .

        .     .          .          . 

     "WE DO NOT SAY THAT THERE IS NO GROUND FOR SUSPICION THAT THE

  DEATH PENALTY FOR RAPE MAY HAVE BEEN DISCRIMINATORILY APPLIED

  OVER THE DECADES IN THAT LARGE AREA OF STATES WHOSE STATUTES

  PROVIDE FOR IT.  THERE ARE RECOGNIZABLE INDICATORS OF THIS.  BUT

. . . IMPROPER STATE PRACTICE OF THE PAST DOES NOT AUTOMATICALLY

  INVALIDATE A PROCEDURE OF THE PRESENT.  . . . "  ID, AT 146-148. 

I AGREE THAT DISCRIMINATORY APPLICATION OF THE DEATH PENALTY IN THE
PAST, ADMITTEDLY INDEFENSIBLE, IS NO JUSTIFICATION FOR HOLDING TODAY
THAT CAPITAL PUNISHMENT IS INVALID IN ALL CASES IN WHICH SENTENCES WERE
HANDED OUT TO MEMBERS OF THE CLASS DISCRIMINATED AGAINST.  BUT MAXWELL
DOES POINT THE WAY TO A MEANS OF RAISING THE EQUAL PROTECTION CHALLENGE
THAT IS MORE CONSONANT WITH PRECEDENT AND THE CONSTITUTION'S MANDATES
THAN THE SEVERAL COURSES PURSUED BY TODAY'S CONCURRING OPINIONS. 

A FINAL COMMENT ON THE RACIAL DISCRIMINATION PROBLEM SEEMS
APPROPRIATE.  THE POSSIBILITY OF RACIAL BIAS IN THE TRIAL AND
SENTENCING PROCESS HAS DIMINSHED IN RECENT YEARS.  THE SEGREGATION OF
OUR SOCIETY IN DECADES PAST, WHICH CONTRIBUTED SUBSTANTIALLY TO THE
SEVERITY OF PUNISHMENT FOR INTERRACIAL CRIMES, IS NOW NO LONGER
PREVALENT IN THIS COUNTRY.  LIKEWISE, THE DAY IS PAST WHEN JURIES DO
NOT REPRESENT THE MINORITY GROUP ELEMENTS OF THE COMMUNITY.  THE
ASSURANCE OF FAIR TRIALS FOR ALL CITIZENS IS GREATER TODAY THAN AT ANY
PREVIOUS TIME IN OUR HISTORY.  BECAUSE STANDARDS OF CRIMINAL JUSTICE
HAVE "EVOLVED" IN A MANNER FAVORABLE TO THE ACCUSED, DISCRIMINATORY
IMPOSITION OF CAPITAL PUNISHMENT IS FAR LESS LIKELY TODAY THAN IN THE
PAST. 

IV 

PETITIONER IN BRANCH V. TEXAS, NO. 69-5031, AND TO A LESSER EXTENT
THE PETITIONERS IN THE OTHER CASES BEFORE US TODAY, URGE THAT CAPITAL
PUNISHMENT IS CRUEL AND UNUSUAL BECAUSE IT NO LONGER SERVES ANY
RATIONAL LEGISLATIVE INTERESTS.  BEFORE TURNING TO CONSIDER WHETHER ANY
OF THE TRADITIONAL AIMS OF PUNISHMENT JUSTIFY THE DEATH PENALTY, I
SHOULD MAKE CLEAR THE CONTEXT IN WHICH I APPROACH THIS ASPECT OF THE
CASES. 

FIRST, I FIND NO SUPPORT-- IN THE LANGUAGE OF THE CONSTITUTION, IN
ITS HISTORY, OR IN THE CASES ARISING UNDER IT-- FOR THE VIEW THAT THIS
COURT MAY INVALIDATE A CATEGORY OF PENALTIES BECAUSE WE DEEM LESS
SEVERE PENALTIES ADEQUATE TO SERVE THE ENDS OF PENOLOGY.  WHILE THE
CASES AFFIRM OUR AUTHORITY TO PROHIBIT PUNISHMENTS THAT ARE CRUELLY
INHUMANE (E.G., WILKERSON V. UTAH, 99 U.S.,AT 135-136; IN RE KEMMLER,
136 U.S.,AT 447), AND PUNISHMENTS THAT ARE CRUELLY EXCESSIVE IN THAT
THEY ARE DISPROPORTIONATE TO PARTICULAR CRIMES (SEE PART VII, INFRA),
THE PRECEDENTS OF THIS COURT AFFORD NO BASIS FOR STRIKING DOWN A
PARTICULAR FORM OF PUNISHMENT BECAUSE WE MAY BE PERSUADED THAT MEANS
LESS STRINGENT WOULD BE EQUALLY EFFICACIOUS. 

SECONDLY, IF WE WERE FREE TO QUESTION THE JUSTIFICATIONS FOR THE USE
OF CAPITAL PUNISHMENT, A HEAVY BURDEN WOULD REST ON THOSE WHO ATTACK
THE LEGISLATURES' JUDGMENTS TO PROVE THE LACK OF RATIONAL
JUSTIFICATIONS.  THIS COURT HAS LONG HELD THAT LEGISLATIVE DECISIONS IN
THIS AREA, WHICH LIE WITHIN THE SPECIAL COMPETENCY OF THAT BRANCH, ARE
ENTITLED TO A PRESUMPTION OF VALIDITY.  SEE, E.G., TROP V. DULLES, 356
U.S.,AT 103; LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S.,AT 470
(FRANKFURTER, J., CONCURRING); WEEMS V. UNITED STATES, 217 U.S.,AT 378
379; IN RE KEMMLER, 136 U.S.,AT 449. 

I COME NOW TO CONSIDER, SUBJECT TO THE RESERVATIONS ABOVE EXPRESSED,
THE TWO JUSTIFICATIONS MOST OFTEN CITED FOR THE RETENTION OF THE
CAPITAL PUNISHMENT.  THE CONCEPT OF RETRIBUTION-- THOUGH POPULAR FOR
CENTURIES-- IS NOW CRITICIZED AS UNWORTHY OF A CIVILIZED PEOPLE.  YET
THIS COURT HAS ACKNOWLEDGED THE EXISTENCE OF A RETRIBUTIVE ELEMENT IN
CRIMINAL SANCTIONS AND HAS NEVER HERETOFORE FOUND IT IMPERMISSIBLE.  IN
WILLIAMS V. NEW YORK, 337 U.S. 241 (1949), MR. JUSTICE BLACK STATED
THAT, 

"RETRIBUTION IS NO LONGER THE DOMINANT OBJECTIVE OF THE CRIMINAL
LAW.  REFORMATION AND REHABILITATION OF OFFENDERS HAVE BECOME IMPORTANT
GOALS OF CRIMINAL JURISPRUDENCE."  ID., AT 248.  IT IS CLEAR, HOWEVER,
THAT THE COURT DID NOT REJECT RETRIBUTION ALTOGETHER.  THE RECORD IN
THAT CASE INDICATED THAT ONE OF THE REASONS WHY THE TRIAL JUDGE IMPOSED
THE DEATH PENALTY WAS HIS SENSE OF REVULSION AT THE "SHOCKING DETAILS
OF THE CRIME."  ID., AT 244.  ALTHOUGH HIS MOTIVATION WAS CLEARLY
RETRIBUTIVE, THE COURT UPHELD THE TRIAL JUDGE'S SENTENCE.  /42/
SIMILARLY, MR. JUSTICE MARSHALL NOTED IN HIS PLURALITY OPINION IN
POWELL V. TEXAS, 392 U.S. 514, 530 (1968), THAT THIS COURT "HAS NEVER
HELD THAT ANYTHING IN THE CONSTITUTION REQUIRES THAT PENAL SANCTIONS BE
DESIGNED SOLELY TO ACHIEVE THERAPEUTIC OR REHABILITATIVE EFFECTS." 
/43/ 

WHILE RETRIBUTION ALONE MAY SEEM AN UNWORTHY JUSTIFICATION IN A
MORAL SENSE, ITS UTILITY IN A SYSTEM OF CRIMINAL JUSTICE REQUIRING
PUBLIC SUPPORT HAS LONG BEEN RECOGNIZED.  LORD JUSTICE DENNING, NOW
MASTER OF THE ROLLS OF THE COURT OF APPEALS IN ENGLAND, TESTIFIED ON
THIS SUBJECT BEFORE THE BRITISH ROYAL COMMISSION ON CAPITAL
PUNISHMENT: 

"MANY ARE INCLINED TO TEST THE EFFICACY OF PUNISHMENT SOLELY BY ITS
VALUE AS A DETERRENT:  BUT THIS IS TOO NARROW A VIEW.  PUNISHMENT IS
THE WAY IN WHICH SOCIETY EXPRESSES ITS DENUNCIATION OF WRONG DOING:
AND, IN ORDER TO MAINTAIN RESPECT FOR LAW, IT IS ESSENTIAL THAT THE
PUNISHMENT INFLICTED FOR GRAVE CRIMES SHOULD ADEQUATELY REFLECT THE
REVULSION FELT BY THE GREAT MAJORITY OF CITIZENS FOR THEM.  IT IS A
MISTAKE TO CONSIDER THE OBJECTS OF PUNISHMENT AS BEING DETERRENT OR
REFORMATIVE OR PREVENTIVE AND NOTHING ELSE.  IF THIS WERE SO, WE SHOULD
NOT SEND TO PRISON A MAN WHO WAS GUILTY OF MOTOR MANSLAUGHTER, BUT ONLY
DISQUALIFY HIM FROM DRIVING; BUT WOULD PUBLIC OPINION BE CONTENT WITH
THIS?  THE TRUTH IS THAT SOME CRIMES ARE SO OUTRAGEOUS THAT SOCIETY
INSISTS ON ADEQUATE PUNISHMENT, BECAUSE THE WRONG-DOER DESERVES IT,
IRRESPECTIVE OF WHETHER IT IS A DETERRENT OR NOT."  /44/ 

THE VIEW EXPRESSED BY LORD DENNING WAS CITED APPROVINGLY IN THE
ROYAL COMMISSION'S REPORT, RECOGNIZING "A STRONG AND WIDESPREAD DEMAND
FOR RETRIBUTION."  /45/  MR. JUSTICE STEWART MAKES MUCH THE SAME POINT
IN HIS OPINION TODAY WHEN HE CONCLUDES THAT EXPRESSION OF MAN'S
RETRIBUTIVE INSTINCTS IN THE SENTENCING PROCESS "SERVES AN IMPORTANT
PURPOSE IN PROMOTING THE STABILITY OF A SOCIETY GOVERNED BY LAW." 
ANTE, AT 308.  THE VIEW, MOREOVER, IS NOT WITHOUT RESPECTABLE SUPPORT
IN THE JURISPRUDENTIAL LITERATURE IN THIS COUNTRY, /46/  DESPITE A
SUBSTANTIAL BODY OF OPINION TO THE CONTRARY.  /47/  AND IT IS CONCEDED
ON ALL SIDES THAT, NOT INFREQUENTLY, CASES ARISE THAT ARE SO SHOCKING
OR OFFENSIVE THAT THE PUBLIC DEMANDS THE ULTIMATE PENALTY FOR THE
TRANSGRESSOR. 

DETERRENCE IS A MORE APPEALING JUSTIFICATION, ALTHOUGH OPINIONS
AGAIN DIFFER WIDELY.  INDEED, THE DETERRENCE ISSUE LIES AT THE HEART OF
MUCH OF THE DEBATE BETWEEN THE ABOLITIONISTS AND RETENTIONISTS.  /48/
STATISTICAL STUDIES, BASED PRIMARILY ON TRENDS IN STATES THAT HAVE
ABOLISHED THE PENALTY, TEND TO SUPPORT THE VIEW THAT THE DEATH PENALTY
HAS NOT BEEN PROVED TO BE A SUPERIOR DETERRENT.  /49/  SOME DISPUTE THE
VALIDITY OF THIS CONCLUSION, /50/  POINTING OUT THAT THE STUDIES DO NOT
SHOW THAT THE DEATH PENALTY HAS NO DETERRENT EFFECT ON ANY CATEGORIES
OF CRIMES.  ON THE BASIS OF THE LITERATURE AND STUDIES CURRENTLY
AVAILABLE, I FIND MYSELF IN AGREEMENT WITH THE CONCLUSIONS DRAWN BY THE
ROYAL COMMISSION FOLLOWING ITS EXHAUSTIVE STUDY OF THIS ISSUE: 

"THE GENERAL CONCLUSION WHICH WE REACH, AFTER CAREFUL REVIEW OF ALL
THE EVIDENCE WE HAVE BEEN ABLE TO OBTAIN AS TO THE DETERRENT EFFECT OF
CAPITAL PUNISHMENT, MAY BE STATED AS FOLLOWS.  PRIMA FACIE THE PENALTY
OF DEATH IS LIKELY TO HAVE A STRONGER EFFECT AS A DETERRENT TO NORMAL
HUMAN BEINGS THAN ANY OTHER FORM OF PUNISHMENT, AND THERE IS SOME
EVIDENCE (THOUGH NO CONVINCING STATISTICAL EVIDENCE) THAT THIS IS IN
FACT SO.  BUT THIS EFFECT DOES NOT OPERATE UNIVERSALLY OR UNIFORMLY,
AND THERE ARE MANY OFFENDERS ON WHOM IT IS LIMITED AND MAY OFTEN BE
NEGLIGIBLE.  IT IS ACCORDINGLY IMPORTANT TO VIEW THIS QUESTION IN A
JUST PERSPECTIVE AND NOT BASE A PENAL POLICY IN RELATION TO MURDER ON
EXAGGERATED ESTIMATES OF THE UNIQUELY DETERRENT FORCE OF THE DEATH
PENALTY."  /51/ 

ONLY RECENTLY THIS COURT WAS CALLED ON TO CONSIDER THE DETERRENCE
ARGUMENT IN RELATION TO PUNISHMENT BY FINES FOR PUBLIC DRUNKENNESS. 
POWELL V. TEXAS, 392 U.S. 514 (1968).  THE COURT WAS UNWILLING TO
STRIKE DOWN THE TEXAS STATUTE ON GROUNDS THAT IT LACKED A RATIONAL
FOUNDATION.  WHAT MR. JUSTICE MARSHALL SAID THERE WOULD SEEM TO HAVE
EQUAL APPLICABILITY IN THIS CASE: 

"THE LONG-STANDING AND STILL RAGING DEBATE OVER THE VALIDITY OF THE
DETERRENCE JUSTIFICATION FOR PENAL SANCTIONS HAS NOT REACHED ANY
SUFFICIENTLY CLEAR CONCLUSIONS TO PERMIT IT TO BE SAID THAT SUCH
SANCTIONS ARE INEFFECTIVE IN ANY PARTICULAR CONTEXT OR FOR ANY
PARTICULAR GROUP OF PEOPLE WHO ARE ABLE TO APPRECIATE THE CONSEQUENCES
OF THEIR ACTS.  . . . "  ID., AT 531. 

AS I NOTED AT THE OUTSET OF THIS SECTION, LEGISLATIVE JUDGMENTS AS
TO THE EFFICACY OF PARTICULAR PUNISHMENTS ARE PRESUMPTIVELY RATIONAL
AND MAY NOT BE STRUCK DOWN UNDER THE EIGHTH AMENDMENT BECAUSE THIS
COURT MAY THINK THAT SOME ALTERNATIVE SANCTION WOULD BE MORE
APPROPRIATE.  EVEN IF SUCH JUDGMENTS WERE WITHIN THE JUDICIAL
PREROGATIVE, PETITIONERS HAVE FAILED TO SHOW THAT THERE EXIST NO
JUSTIFICATIONS FOR THE LEGISLATIVE ENACTMENTS CHALLENGED IN THESE
CASES.  /52/  WHILE THE EVIDENCE AND ARGUMENTS ADVANCED BY PETITIONERS
MIGHT HAVE PROVED PROFOUNDLY PERSUASIVE IF ADDRESSED TO A LEGISLATIVE
BODY, THEY DO NOT APPROACH THE SHOWING TRADITIONALLY REQUIRED BEFORE A
COURT DECLARES THAT THE LEGISLATURE HAS ACTED IRRATIONALLY. 

        VII 

IN TWO OF THE CASES BEFORE US TODAY JURIES IMPOSED SENTENCES OF
DEATH AFTER CONVICTIONS FOR RAPE.  /53/  IN THESE CASES WE ARE URGED TO
HOLD THAT EVEN IF CAPITAL PUNISHMENT IS PERMISSIBLE FOR SOME CRIMES, IT
IS A CRUEL AND UNUSUAL PUNISHMENT FOR THIS CRIME.  PETITIONERS IN THESE
CASES RELY ON THE COURT'S OPINIONS HOLDING THAT THE EIGHTH AMENDMENT,
IN ADDITION TO PROHIBITING PUNISHMENTS DEEMED BARBAROUS AND INHUMANE,
ALSO CONDEMNS PUNISHMENTS THAT ARE GREATLY DISPROPORTIONATE TO THE
CRIME CHARGED.  THIS READING OF THE AMENDMENT WAS FIRST EXPRESSED BY
MR. JUSTICE FIELD IN HIS DISSENTING OPINION IN O'NEIL V. VERMONT, 144
U.S. 323, 337 (1892), A CASE IN WHICH A DEFENDANT CHARGED WITH A LARGE
NUMBER OF VIOLATIONS OF VERMONT'S LIQUOR LAWS RECEIVED A FINE IN EXCESS
OF $6,600, OR A 54-YEAR JAIL SENTENCE IF THE FINE WAS NOT PAID.  THE
MAJORITY REFUSED TO CONSIDER THE QUESTION ON THE GROUND THAT THE EIGHTH
AMENDMENT DID NOT APPLY TO THE STATES.  THE DISSENT, AFTER CAREFULLY
EXAMINING THE HISTORY OF THAT AMENDMENT AND THE FOURTEENTH, CONCLUDED
THAT ITS PROHIBITION WAS BINDING ON VERMONT AND THAT IT WAS DIRECTED
AGAINST "ALL PUNISHMENTS WHICH BY THEIR EXCESSIVE LENGTH OR SEVERITY
ARE GREATLY DISPROPORTIONED TO THE OFFENCES CHARGED."  ID, AT 339-340. 
/54/ 

THE COURT, IN WEEMS V. UNITED STATES, 217 U.S. 349 (1910), ADOPTED
MR. JUSTICE FIELD'S VIEW.  THE DEFENDANT, IN WEEMS, CHARGED WITH
FALSIFYING GOVERNMENT DOCUMENTS, HAD BEEN SENTENCED TO SERVE 15 YEARS
IN CADENA TEMPORAL, A PUNISHMENT WHICH INCLUDED CARRYING CHAINS AT THE
WRISTS AND ANKLES AND THE PERPETUAL LOSS OF THE RIGHT TO VOTE AND HOLD
OFFICE.  FINDING THE SENTENCE GROSSLY EXCESSIVE IN LENGTH AND CONDITION
OF IMPRISONMENT, THE COURT STRUCK IT DOWN.  THIS NOTION OF
DISPROPORTIONALITY-- THAT PARTICULAR SENTENCES MAY BE CRUELLY EXCESSIVE
FOR PARTICULAR CRIMES-- HAS BEEN CITED WITH APPROVAL IN MORE RECENT
DECISIONS OF THIS COURT.  SEE ROBINSON V. CALIFORNIA, 370 U.S.,AT 667;
TROP V. DULLES, 356 U.S.,AT 100; SEE ALSO HOWARD V. FLEMING, 191 U.S.
126, 135-136 (1903). 

THESE CASES, WHILE PROVIDING A RATIONALE FOR GAUGING THE
CONSTITUTIONALITY OF CAPITAL SENTENCES IMPOSED FOR RAPE, ALSO INDICATE
THE EXISTENCE OF NECESSARY LIMITATIONS ON THE JUDICIAL FUNCTION.  THE
USE OF LIMITING TERMS IN THE VARIOUS EXPRESSIONS OF THIS TEST FOUND IN
THE OPINIONS-- GROSSLY EXCESSIVE, GREATLY DISPROPORTIONATE-- EMPHASIZES
THAT THE COURT'S POWER TO STRIKE DOWN PUNISHMENTS AS EXCESSIVE MUST BE
EXERCISED WITH THE GREATEST CIRCUMSPECTION.  AS I HAVE NOTED EARLIER,
NOTHING IN THE HISTORY OF THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE
INDICATES THAT IT MAY PROPERLY BE UTILIZED BY THE JUDICIARY TO STRIKE
DOWN PUNISHMENTS-- AUTHORIZED BY LEGISLATURES AND IMPOSED BY JURIES--
IN ANY BUT THE EXTRAORDINARY CASE.  THIS COURT IS NOT EMPOWERED TO SIT
AS A COURT OF SENTENCING REVIEW, IMPLEMENTING THE PERSONAL VIEWS OF ITS
MEMBERS ON THE PROPER ROLE OF PENOLOGY.  TO DO SO IS TO USURP A
FUNCTION COMMITTED TO THE LEGISLATIVE BRANCH AND BEYOND THE POWER AND
COMPETENCY OF THIS COURT.     OPERATING WITHIN THESE NARROW LIMITS, I
FIND IT QUITE IMPOSSIBLE TO DECLARE THE DEATH SENTENCE GROSSLY
EXCESSIVE FOR ALL RAPES.  RAPE IS WIDELY RECOGNIZED AS AMONG THE MOST
SERIOUS OF VIOLENT CRIMES, AS WITNESSED BY THE VERY FACT THAT IT IS
PUNISHABLE BY DEATH IN 16 STATES AND BY LIFE IMPRISONMENT IN MOST OTHER
STATES.  /55/  THE SEVERAL REASONS WHY RAPE STANDS SO HIGH ON THE LIST
OF SERIOUS CRIMES ARE WELL KNOWN:  IT IS WIDELY VIEWED AS THE MOST
ATROCIOUS OF INTRUSIONS UPON THE PRIVACY AND DIGNITY OF THE VICTIM;
NEVER IS THE CRIME COMMITTED ACCIDENTALLY; RARELY CAN IT BE SAID TO BE
UNPREMEDITATED; OFTEN THE VICTIM SUFFERS SERIOUS PHYSICAL INJURY; THE
PSYCHOLOGICAL IMPACT CAN OFTEN BE AS GREAT AS THE PHYSICAL
CONSEQUENCES; IN A REAL SENSE, THE THREAT OF BOTH TYPES OF INJURY IS
ALWAY PRESENT.  /56/  FOR THESE REASONS, AND FOR THE REASONS ARGUING
AGAINST ABOLITION OF THE DEATH PENALTY ALTOGETHER, THE EXCESSIVENESS
RATIONALE PROVIDES NO BASIS FOR REJECTION OF THE PENALTY FOR RAPE IN
ALL CASES. 

THE ARGUMENT THAT THE DEATH PENALTY FOR RAPE LACKS RATIONAL
JUSTIFICATION BECAUSE LESS SEVERE PUNISHMENTS MIGHT BE VIEWED AS
ACCOMPLISHING HERE AS IT WAS IN CONSIDERING PENOLOGY IS AS INAPPOSITE
HERE AS IT WAS IN CONSIDERING PER SE ABOLITION.  SEE PART VI SUPRA.
THE STATE OF KNOWLEDGE WITH RESPECT TO THE DETERRENT VALUE OF THE
SENTENCE FOR THIS CRIME IS INCONCLUSIVE.  /57/  MOREOVER, WHAT HAS BEEN
SAID ABOUT THE CONCEPT OF RETRIBUTION APPLIES WITH EQUAL FORCE WHERE
THE CRIME IS RAPE.  THERE ARE MANY CASES IN WHICH THE SORDID, HEINOUS
NATURE OF A PARTICULAR CRIME, DEMEANING, HUMILIATING, AND OFTEN
PHYSICALLY OR PSYCHOLOGICALLY TRAUMATIC, WILL CALL FOR PUBLIC
CONDEMNATION.  IN A PERIOD IN OUR COUNTRY'S HISTORY WHEN THE FREQUENCY
OF THIS CRIME IS INCREASING ALARMINGLY /58/  IT IS INDEED A GRAVE EVENT
FOR THE COURT TO TAKE FROM THE STATES WHATEVER DETERRENT AND
RETRIBUTIVE WEIGHT THE DEATH PENALTY RETAINS. 

OTHER LESS SWEEPING APPLICATIONS OF THE DISPROPORTIONALITY CONCEPT
HAVE BEEN SUGGESTED.  RECENTLY THE FOURTH CIRCUIT STRUCK DOWN A DEATH
SENTENCE IN RALPH V. WARDEN, 438 F.2D 786 (1970), HOLDING THAT THE
DEATH PENALTY WAS AN APPROPRIATE PUNISHMENT FOR RAPE ONLY WHERE LIFE IS
"ENDANGERED."  CHIEF JUDGE HAYNSWORTH, WHO JOINED IN THE PANEL'S
OPINION, WROTE SEPARATELY IN DENYING THE STATE OF MARYLAND'S PETITION
FOR REHEARING IN ORDER TO MAKE CLEAR THE BASIS FOR HIS JOINDER.  HE
STATED THAT, FOR HIM, THE APPROPRIATE TEST WAS NOT WHETHER LIFE WAS
ENDANGERED, BUT WHETHER THE VICTIM IN FACT SUFFERED "GRIEVOUS PHYSICAL
OR PSYCHOLOGICAL HARM."  ID., AT 794.  SEE RUDOLPH V. ALABAMA, 375 U.S.
889, (1963) (DISSENT FROM THE DENIAL OF CERTIORARI). 

IT SEEMS TO ME THAT BOTH OF THESE TESTS DEPART FROM ESTABLISHED
PRINCIPLES AND ALSO RAISE SERIOUS PRACTICAL PROBLEMS.  HOW ARE THOSE
CASES IN WHICH THE VICTIM'S LIFE IS ENDANGERED TO BE DISTINGUISHED FROM
THOSE IN WHICH NO DANGER IS FOUND?  THE THREAT OF SERIOUS INJURY IS
IMPLICIT IN THE DEFINITION OF RAPE; THE VICTIM IS EITHER FORCED INTO
SUBMISSION BY PHYSICAL VIOLENCE OR BY THE THREAT OF VIOLENCE. 
CERTAINLY THAT TEST WOULD PROVIDE LITTLE COMFORT FOR EITHER OF THE RAPE
DEFENDANTS IN THE CASES PRESENTLY BEFORE US.  BOTH CRIMINAL ACTS WERE
ACCOMPLISHED ONLY AFTER A VIOLENT STRUGGLE.  PETITIONER JACKSON HELD A
SCISSORS BLADE AGAINST HIS VICTIM'S NECK.  PETITIONER BRANCH HAD LESS
DIFFICULTY SUBDUING HIS 65-YEAR-OLD VICTIM.  BOTH ASSAILANTS THREATENED
TO KILL THEIR VICTIMS.  SEE MR. JUSTICE DOUGLAS' OPINION, ANTE, AT 252
253.  THE ALTERNATE TEST, LIMITING THE PENALTY TO CASES IN WHICH THE
VICTIM SUFFERS PHYSICAL OR EMOTIONAL HARM, MIGHT PRESENT EVEN GREATER
PROBLEMS OF APPLICATION.  WHILE MOST PHYSICAL EFFECTS MAY BE SEEN AND
OBJECTIVELY MEASURED, THE EMOTIONAL IMPACT MAY BE IMPOSSIBLE TO GAUGE
AT ANY PARTICULAR POINT IN TIME.  THE EXTENT AND DURATION OF
PSYCHOLOGICAL TRAUMA MAY NOT BE KNOWN OR ASCERTAINABLE PRIOR TO THE
DATE OF TRIAL. 

WHILE I REJECT EACH OF THESE ATTEMPTS TO ESTABLISH SPECIFIC
CATEGORIES OF CASES IN WHICH THE DEATH PENALTY MAY BE DEEMED EXCESSIVE,
I VIEW THEM AS GROPING TOWARD WHAT IS FOR ME THE APPROPRIATE
APPLICATION OF THE EIGHTH AMENDMENT.  WHILE IN MY VIEW THE
DISPROPORTIONALITY TEST MAY NOT BE USED EITHER TO STRIKE DOWN THE DEATH
PENALTY FOR RAPE ALTOGETHER OR TO INSTALL THE COURT AS A TRIBUNAL FOR
SENTENCING REVIEW, THAT TEST MAY FIND ITS APPLICATION IN THE PECULIAR
CIRCUMSTANCES OF SPECIFIC CASES.  ITS UTILIZATION SHOULD BE LIMITED TO
THE RARE CASE IN WHICH THE DEATH PENALTY IS RENDERED FOR A CRIME
TECHNICALLY FALLING WITHIN THE LEGISLATIVELY DEFINED CLASS BUT
FACTUALLY FALLING OUTSIDE THE LIKELY LEGISLATIVE INTENT IN CREATING THE
CATEGORY.  SPECIFIC RAPE CASES (AND SPECIFIC HOMICIDES AS WELL) CAN BE
IMAGINED IN WHICH THE CONDUCT OF THE ACCUSED WOULD RENDER THE ULTIMATE
PENALTY A GROSSLY EXCESSIVE PUNISHMENT.  ALTHOUGH THIS CASE-BY-CASE
APPROACH MAY SEEM PAINFULLY SLOW AND INADEQUATE TO THOSE WHO WISH THE
COURT TO ASSUME AN ACTIVIST LEGISLATIVE ROLE IN REFORMING CRIMINAL
PUNISHMENTS, IT IS THE APPROACH DICTATED BOTH BY OUR PRIOR OPINIONS AND
BY A DUE RECOGNITION OF THE LIMITATIONS OF JUDICIAL POWER.  THIS
APPROACH, RATHER THAN THE MAJORITY'S MORE PERVASIVE AND LESS REFINED
JUDGMENT, MARKS FOR ME THE APPROPRIATE COURSE UNDER THE EIGHTH
AMENDMENT. 

        VIII 

I NOW RETURN TO THE OVERRIDING QUESTION IN THESE CASES:  WHETHER
THIS COURT, ACTING IN CONFORMITY WITH THE CONSTITUTION, CAN JUSTIFY ITS
JUDGMENT TO ABOLISH CAPITAL PUNISHMENT AS HERETOFORE KNOWN IN THIS
COUNTRY.  IT IS IMPORTANT TO KEEP IN FOCUS THE ENORMITY OF THE STEP
UNDERTAKEN BY THE COURT TODAY.  NOT ONLY DOES IT INVALIDATE HUNDREDS OF
STATE AND FEDERAL LAWS, IT DEPRIVES THOSE JURISDICTIONS OF THE POWER TO
LEGISLATE WITH RESPECT TO CAPITAL PUNISHMENT IN THE FUTURE, EXCEPT IN A
MANNER CONSISTENT WITH THE CLOUDILY OUTLINED VIEWS OF THOSE JUSTICES
WHO DO NOT PURPORT TO UNDERTAKE TOTAL ABOLITION.  NOTHING SHORT OF AN
AMENDMENT TO THE UNITED STATES CONSTITUTION CAN REVERSE THE COURT'S
JUDGMENTS.  MEANWHILE, ALL FLEXIBILITY IS FORECLOSED.  THE NORMAL
DEMOCRATIC PROCESS, AS WELL AS THE OPPORTUNITIES FOR THE SEVERAL STATES
TO RESPOND TO THE WILL OF THEIR PEOPLE EXPRESSED THROUGH BALLOT
REFERENDA (AS IN MASSACHUSETTS, ILLINOIS, AND COLORADO), /59/  IS NOW
SHUT OFF. 

THE SOBERING DISADVANTAGE OF CONSTITUTIONAL ADJUDICATION OF THIS
MAGNITUDE IS THE UNIVERSALITY AND PERMANENCE OF THE JUDGMENT.  THE
ENDURING MERIT OF LEGISLATIVE ACTION IS ITS RESPONSIVENESS TO THE
DEMOCRATIC PROCESS, AND TO REVISION AND CHANGE:  MISTAKEN JUDGMENTS MAY
BE CORRECTED AND REFINEMENTS PERFECTED.  IN ENGLAND /60/  AND CANADA
/61/  CRITICAL CHOICES WERE MADE AFTER STUDIES CANVASSING ALL COMPETING
VIEWS, AND IN THOSE COUNTRIES REVISIONS MAY BE MADE IN LIGHT OF
EXPERIENCE.  /62/ 

AS RECENTLY AS 1967 A PRESIDENTIAL COMMISSION DID CONSIDER, AS PART
OF AN OVERALL STUDY OF CRIME IN THIS COUNTRY, WHETHER THE DEATH PENALTY
SHOULD BE ABOLISHED.  THE COMMISSION'S UNANIMOUS RECOMMENDATION WAS AS
FOLLOWS: 

"THE QUESTION WHETHER CAPITAL PUNISHMENT IS AN APPROPRIATE SANCTION
IS A POLICY DECISION TO BE MADE BY EACH STATE.  WHERE IT IS RETAINED,
THE TYPES OF OFFENSES FOR WHICH IT IS AVAILABLE SHOULD BE STRICTLY
LIMITED, AND THE LAW SHOULD BE ENFORCED IN AN EVENHANDED AND
NONDISCRIMINATORY MANNER, WITH PROCEDURES FOR REVIEW OF DEATH SENTENCES
THAT ARE FAIR AND EXPEDITIOUS.  WHEN A STATE FINDS THAT IT CANNOT
ADMINISTER THE PENALTY IN SUCH A MANNER, OR THAT THE DEATH PENALTY IS
BEING IMPOSED BUT NOT CARRIED INTO EFFECT, THE PENALTY SHOULD BE
ABONDONED."  /63/ THE THRUST OF THE COMMISSION'S RECOMMENDATION, AS
PRESENTLY RELEVANT, IS THAT THIS QUESTION "IS A POLICY DECISION TO BE
MADE BY EACH STATE."  THERE IS NO HINT THAT THIS DECISION COULD OR
SHOULD BE MADE BY THE JUDICIAL BRANCH. 

THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS ALSO
CONSIDERED THE CAPITAL PUNISHMENT ISSUE.  THE INTRODUCTORY COMMENTARY
OF ITS FINAL REPORT STATES THAT "A SHARP DIVISION (EXISTED) WITHIN THE
COMMISSION ON THE SUBJECT OF CAPITAL PUNISHMENT," ALTHOUGH A MAJORITY
FAVORED ITS ABOLITION.  /64/ AGAIN, CONSIDERATION OF THE QUESTION WAS
DIRECTED TO THE PROPRIETY OF RETENTION OR ABOLITION AS A LEGISLATIVE
MATTER.  THERE WAS NO SUGGESTION THAT THE DIFFERENCE OF OPINION
EXISTING AMONG COMMISSION MEMBERS, AND GENERALLY ACROSS THE COUNTRY,
COULD OR SHOULD BE RESOLVED IN ONE STROKE BY A DECISION OF THIS COURT. 
/65/  SIMILAR ACTIVITY WAS, BEFORE TODAY, EVIDENT AT THE STATE LEVEL
WITH RE-EVALUATION HAVING BEEN UNDERTAKEN BY SPECIAL LEGISLATIVE
COMMITTEES IN SOME STATES AND BY PUBLIC BALLOT IN OTHERS.  /66/ 

WITH DEFERENCE AND RESPECT FOR THE VIEWS OF THE JUSTICES WHO DIFFER,
IT SEEMS TO ME THAT ALL THESE STUDIES-- BOTH IN THIS COUNTRY AND
ELSEWHERE-- SUGGEST THAT, AS A MATTER OF POLICY AND PRECEDENT, THIS IS
A CLASSIC CASE FOR THE EXERCISE OF OUR OFT-ANNOUNCED ALLEGIANCE TO
JUDICIAL RESTRAINT.  I KNOW OF NO CASE IN WHICH GREATER GRAVITY AND
DELICACY HAVE ATTACHED TO THE DUTY THAT THIS COURT IS CALLED ON TO
PERFORM WHENEVER LEGISLATION-- STATE OR FEDERAL-- IS CHALLENGED ON
CONSTITUTIONAL GROUNDS.  /67/  IT SEEMS TO ME THAT THE SWEEPING
JUDICIAL ACTION UNDERTAKEN TODAY REFLECTS A BASIC LACK OF FAITH AND
CONFIDENCE IN THE DEMOCRATIC PROCESS.  MANY MAY REGRET, AS I DO, THE
FAILURE OF SOME LEGISLATIVE BODIES TO ADDRESS THE CAPITAL PUNISHMENT
ISSUE WITH GREATER FRANKNESS OR EFFECTIVENESS.  MANY MIGHT DECRY THEIR
FAILURE EITHER TO ABOLISH THE PENALTY ENTIRELY OR SELECTIVELY, OR TO
ESTABLISH STANDARDS FOR ITS ENFORCEMENT.  BUT IMPATIENCE WITH THE
SLOWNESS, AND EVEN THE UNRESPONSIVENESS, OF LEGISLATURES IS NO
JUSTIFICATION FOR JUDICIAL INTRUSION UPON THEIR HISTORIC POWERS. 
RARELY HAS THERE BEEN A MORE APPROPRIATE OPPORTUNITY FOR THIS COURT TO
HEED THE PHILOSOPHY OF MR. JUSTICE OLIVER WENDELL HOLMES.  AS MR.
JUSTICE FRANKFURTER REMINDED THE COURT IN TROP: 

"(THE WHOLE OF (MR. JUSTICE HOLMES') WORK DURING HIS THIRTY YEARS OF
SERVICE ON THIS COURT SHOULD BE A CONSTANT REMINDER THAT THE POWER TO
INVALIDATE LEGISLATION MUST NOT BE EXERCISED AS IF, EITHER IN
CONSTITUTIONAL THEORY OR IN THE ART OF GOVERNMENT, IT STOOD AS THE SOLE
BULWARK AGAINST UNWISDOM OR EXCESSES OF THE MOMENT."  356 U.S.,AT 128. 

/1/  MR. JUSTICE DOUGLAS HOLDS ONLY THAT "THE EIGHTH AMENDMENT
(REQUIRES) LEGISLATURES TO WRITE PENAL LAWS THAT ARE EVENHANDED,
NONSELECTIVE, AND NONARBITRARY, AND (REQUIRES) JUDGES TO SEE TO IT THAT
GENERAL LAWS ARE NOT APPLIED SPARSELY, SELECTIVELY, AND SPOTTILY TO
UNPOPULAR GROUPS."  ANTE, AT 256.  THE IMPORT OF THIS RATIONALE IS THAT
WHILE ALL EXISTING LAWS MUST FALL, IT REMAINS THEORETICALLY POSSIBLE
FOR A STATE OR CONGRESS TO DEVISE A STATUTE CAPABLE OF WITHSTANDING A
CLAIM OF DISCRIMINATORY APPLICATION.  MR. JUSTICE STEWART, IN ADDITION
TO RESERVING JUDGMENT ON AT LEAST FOUR PRESENTLY EXISTING STATUTES
(ANTE, AT 306), INDICATES THAT STATUTES MAKING CAPITAL PUNISHMENT
MANDATORY FOR ANY CATEGORY OF CRIME, OR PROVIDING SOME OTHER MEANS OF
ASSURING AGAINST "WANTON" AND "FREAKISH" APPLICATION (ANTE, AT 310),
WOULD PRESENT A DIFFICULT QUESTION THAT HE DOES NOT REACH TODAY.  MR.
JUSTICE WHITE, FOR SOMEWHAT DIFFERENT REASONS, APPEARS TO COME TO THE
CONCLUSION THAT A MANDATORY SYSTEM OF PUNISHMENT MIGHT PROVE
ACCEPTABLE.  ANTE, P. 310. 

THE BRIEF AND SELECTIVE REFERENCES, IN MY OPINION ABOVE AND IN THIS
NOTE, TO THE OPINIONS OF OTHER JUSTICES OBVIOUSLY DO NOT ADEQUATELY
SUMMARIZE THE THOUGHTFUL AND SCHOLARLY VIEWS SET FORTH IN THEIR FULL
OPINIONS.  I HAVE TRIED MERELY TO SELECT WHAT SEEM TO ME TO BE THE
RESPECTIVE POINTS OF PRIMARY EMPHASIS IN EACH OF THE MAJORITY'S
OPINIONS. 

/2/  WHILE STATUTES IN 40 STATES PERMIT CAPITAL PUNISHMENT FOR A
VARIETY OF CRIMES, THE CONSTITUTIONALITY OF A VERY FEW MANDATORY
STATUTES REMAINS UNDECIDED.  SEE CONCURRING OPINIONS BY MR. JUSTICE
STEWART AND MR. JUSTICE WHITE.  SINCE RHODE ISLAND'S ONLY CAPITAL
STATUTE-- MURDER BY A LIFE TERM PRISONER-- IS MANDATORY, NO LAW IN THAT
STATE IS TRUCK DOWN BY VIRTUE OF THE COURT'S DECISION TODAY. 

/3/  FOR A THOROUGH PRESENTATION OF THE HISTORY OF THE CRUEL AND
UNUSUAL PUNISHMENT CLAUSE SEE MR. JUSTICE MARSHALL'S OPINION TODAY,
ANTE, AT 316-328.  SEE ALSO WEEMS V. UNITED STATES, 217 U.S. 349, 389
409 (1910) (WHITE, J., DISSENTING); O'NEIL V. VERMONT, 144 U.S. 323,
337 (1892) (FIELD, J., DISSENTING); GRANUCCI, "NOR CRUEL AND UNUSUAL
PUNISHMENTS INFLICTED:"  THE ORIGINAL MEANING, 57 CALIF.L.REV.  839
(1969). 

/4/  THE COURT POINTED OUT THAT THE EIGHTH AMENDMENT APPLIED ONLY TO
THE FEDERAL GOVERNMENT AND NOT TO THE STATES.  THE COURT'S POWER IN
RELATION TO STATE ACTION WAS LIMITED TO PROTECTING PRIVILEGES AND
IMMUNITIES AND TO ASSURING DUE PROCESS OF LAW, BOTH WITHIN THE
FOURTEENTH AMENDMENT.  THE STANDARD-- FOR PURPOSES OF DUE PROCESS-- WAS
HELD TO BE WHETHER THE STATE HAD EXERTED ITS AUTHORITY, "WITHIN THE
LIMITS OF THOSE FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE
AT THE BASE OF ALL OUR CIVIL AND POLITICAL INSTITUTIONS."  136 U.S.,AT
448.  THE STATE OF GEORGIA, IN NO. 69-5003 AND NO. 69-5030, HAS PLACED
GREAT EMPHASIS ON THIS DISCUSSION IN IN RE KEMMLER, 136 U.S. 436
(1890), AND HAS URGED THAT THE INSTANT CASES SHOULD ALL BE DECIDED
UNDER THE MORE EXPANSIVE TESTS OF DUE PROCESS RATHER THAN UNDER THE
CRUEL AND UNUSUAL PUNISHMENTS CLAUSE PER SE.  IRRESPECTIVE WHETHER THE
DECISIONS OF THIS COURT ARE VIEWED AS "INCORPORATING" THE EIGHTH
AMENDMENT (SEE ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962); POWELL V.
TEXAS, 392 U.S. 514 (1968)), IT SEEMS CLEAR THAT THE TESTS FOR APPLYING
THESE TWO PROVISIONS ARE FUNDAMENTALLY IDENTICAL.  COMPARE MR. JUSTICE
FRANKFURTER'S TEST IN LOUISIANA EX REL FRANCIS V. RESWEBER, 329 U.S.
459, 470 (1947) (CONCURRING OPINION), WITH MR. CHIEF JUSTICE WARREN'S
TEST IN TROP V. DULLES, 356 U.S. 86, 100-101 (1958).     /5/  MR.
JUSTICE WHITE STATED: 

"DEATH WAS A WELL-KNOWN METHOD OF PUNISHMENT PRESCRIBED BY LAW, AND
IT WAS OF COURSE PAINFUL, AND IN THAT SENSE WAS CRUEL.  BUT THE
INFLICTION OF THIS PUNISHMENT WAS CLEARLY NOT PROHIBITED BY THE WORD
CRUEL, ALTHOUGH THAT WORD MANIFESTLY WAS INTENDED TO FORBID THE RESORT
TO BARBAROUS AND UNNECESSARY METHODS OF BODILY TORTURE, IN EXECUTING
EVEN THE PENALTY OF DEATH."  217 U.S.,AT 409. 

/6/  SEE PART III, INFRA. 

/7/  IN FOOTNOTE 32, AT 100-101, THE PLURALITY OPINION INDICATES
THAT DENATIONALIZATION "WAS NEVER EXPLICITLY SANCTIONED BY THIS
GOVERNMENT UNTIL 1940 AND NEVER TESTED AGAINST THE CONSTITUTION UNTIL
THIS DAY." 

/8/  "IT SEEMS SCARCELY ARGUABLE THAT LOSS OF CITIZENSHIP IS WITHIN
THE EIGHTH AMENDMENT'S PROHIBITION BECAUSE DISPROPORTIONATE TO AN
OFFENSE THAT IS CAPITAL AND HAS BEEN SO FROM THE FIRST YEAR OF
INDEPENDENCE.  . . . IS CONSTITUTIONAL DIALECTIC SO EMPTY OF REASON
THAT IT CAN BE SERIOUSLY URGED THAT LOSS OF CITIZENSHIP IS A FATE WORSE
THAN DEATH?"  ID, AT 125. 

/9/  398 U.S. 936 (1970); 402 U.S.,AT 307 (BRENNAN, J.,
DISSENTING).  WHILE THE CONSTITUTIONALITY PER SE OF CAPITAL PUNISHMENT
HAS BEEN ASSUMED ALMOST WITHOUT QUESTION, RECENTLY MEMBERS OF THIS
COURT HAVE EXPRESSED THE DESIRE TO CONSIDER THE CONSTITUTIONALITY OF
THE DEATH PENALTY WITH RESPECT TO ITS IMPOSITION FOR SPECIFIC CRIMES. 
RUDOLPH V. ALABAMA, 375 U.S. 889 (1963) (DISSENT FROM THE DENIAL OF
CERTIORARI). 

/10/  BRIEF FOR RESPONDENT IN BRANCH V. TEXAS, NO. 69-5031, P. 6. 

/11/  WHILE THE IMPLICIT ASSUMPTION IN MCGAUTHA V. CALIFORNIA, 402
U.S. 183 (1971), OF THE ACCEPTABILITY OF DEATH AS A FORM OF PUNISHMENT
MUST PROVE TROUBLESOME FOR THOSE WHO URGE TOTAL ABOLITION, IT PRESENTS
AN EVEN MORE SEVERE PROBLEM OF STARE DECISIS FOR THOSE JUSTICES WHO
TREAT THE EIGHTH AMENDMENT ESSENTIALLY AS A PROCESS PROHIBITION.  MR.
JUSTICE DOUGLAS, WHILE STATING THAT THE COURT IS "NOW IMPRISONED IN . .
. MCGAUTHA" (ANTE, AT 248), CONCLUDES THAT CAPITAL PUNISHMENT IS
UNACCEPTABLE PRECISELY BECAUSE THE PROCEDURE GOVERNING ITS IMPOSITION
IS ARBITRARY AND DISCRIMINATORY.  MR. JUSTICE STEWART, TAKING A NOT
DISSIMILAR TACK ON THE MERITS, DISPOSES OF MCGAUTHA IN A FOOTNOTE
REFERENCE INDICATING THAT IT IS NOT APPLICABLE BECAUSE THE QUESTION
THERE AROSE UNDER THE DUE PROCESS CLAUSE.  ANTE, AT 310 N. 12.  MR.
JUSTICE WHITE, WHO ALSO FINDS THE DEATH PENALTY INTOLERABLE BECAUSE OF
THE PROCESS FOR ITS IMPLEMENTATION, MAKES NO ATTEMPT TO DISTINGUISH
MCGAUTHA'S CLEAR HOLDING.  FOR THE REASONS EXPRESSED IN THE CHIEF
JUSTICE'S OPINION, MCGAUTHA SIMPLY CANNOT BE DISTINGUISHED.  ANTE, AT
399-403.  THESE VARIOUS OPINIONS WOULD, IN FACT, OVERRULE THAT RECENT
PRECEDENT. 

/12/  THIS NUMBER INCLUDES ALL THE JUSTICES WHO PARTICIPATED IN
WILKERSON V. UTAH, 99 U.S. 130 (1879), KEMMLER, AND LOUISIANA EX REL.
FRANCIS AS WELL AS THOSE WHO JOINED IN THE PLURALITY AND DISSENTING
OPINIONS IN TROP AND THE DISSENTING OPINION IN WEEMS. 

/13/  SEE N. 4, SUPRA. 

/14/  SEE, E.G., EX PARTE WILSON, 114 U.S. 417, 427-428 (1885). 

/15/  SEE PART VII, INFRA. 

/16/  SEE, E.G., T. SELLIN, THE DEATH PENALTY, A REPORT FOR THE
MODEL PENAL CODE PROJECT OF THE AMERICAN LAW INSTITUTE (1959); UNITED
NATIONS, DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS, CAPITAL PUNISHMENT
(1968); 2 NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS,
WORKING PAPERS, 1351 N. 13 (1970). 

/17/  THE LITERATURE ON THE MORAL QUESTION IS LEGION. 
REPRESENTATIVE COLLECTIONS OF THE STRONGLY HELD VIEWS ON BOTH SIDES MAY
BE FOUND IN H. BEDAU, THE DEATH PENALTY IN AMERICAN (1967 REV. ED.),
AND IN ROYAL COMMISSION ON CAPITAL PUNISHMENT, MINUTES OF EVIDENCE
(1949-1953). 

/18/  DEPARTMENT OF JUSTICE, NATIONAL PRISONER STATISTICS NO. 46,
CAPITAL PUNISHMENT 1930-1970 (AUG. 1971) (191 EXECUTIONS DURING THE
1960'S; NO EXECUTIONS SINCE JUNE 2, 1967); PRESIDENT'S COMMISSION ON
LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME
IN A FREE SOCIETY 143 (1967) ("(THE MOST SALIENT CHARACTERISTIC OF
CAPITAL PUNISHMENT IS THAT IT IS INFREQUENTLY APPLIED"). 

PETITIONERS CONCEDE, AS THEY MUST, THAT LITTLE WEIGHT CAN BE GIVEN
TO THE LACK OF EXECUTIONS IN RECENT YEARS.  A DE FACTO MORATORIUM HAS
EXISTED FOR FIVE YEARS NOW WHILE CASES CHALLENGING THE PROCEDURES FOR
IMPLEMENTING THE CAPITAL SENTENCE HAVE BEEN RE-EXAMINED BY THIS COURT. 
MCGAUTHA V. CALIFORNIA, 402 U.S. 183 (1971); WITHERSPOON V. ILLINOIS,
391 U.S. 510 (1968).  THE INFREQUENCY OF EXECUTIONS DURING THE YEARS
BEFORE THE MORATORIUM BECAME FULLY EFFECTIVE MAY BE ATTRIBUTABLE IN
PART TO DECISIONS OF THIS COURT GIVING EXPANDED SCOPE TO THE CRIMINAL
PROCEDURAL PROTECTIONS OF THE BILL OF RIGHTS, ESPECIALLY UNDER THE
FOURTH AND FIFTH AMENDMENTS.  E.G., MIRANDA V. ARIZONA, 384 U.S. 436
(1966); MAPP V. OHIO, 367 U.S. 643 (1961).  ADDITIONALLY, DECISIONS OF
THE EARLY 1960'S AMPLIFYING THE SCOPE OF THE FEDERAL HABEAS CORPUS
REMEDY ALSO MAY HELP ACCOUNT FOR A REDUCTION IN THE NUMBER OF
EXECUTIONS.  E.G., FAY V. NOIA, 372 U.S. 391 (1963); TOWNSEND V. SAIN,
372 U.S. 293 (1963).  THE MAJOR EFFECT OF EITHER EXPANDED PROCEDURAL
PROTECTIONS OR EXTENDED COLLATERAL REMEDIES MAY WELL HAVE BEEN SIMPLY
TO POSTPONE THE DATE OF EXECUTION FOR SOME CAPITAL OFFENDERS, THEREBY
LEAVING THEM ULTIMATELY IN THE MORATORIUM LIMBO. 

/19/  AN EXACT FIGURE FOR THE NUMBER OF DEATH SENTENCES IMPOSED BY
THE SENTENCING AUTHORITIES-- JUDGE OR JURY-- IN THE VARIOUS
JURISDICTIONS IS DIFFICULT TO DETERMINE.  BUT THE NATIONAL PRISONER
STATISTICS (HEREAFTER NPS) SHOW THE NUMBER OF PERSONS RECEIVED AT THE
STATE AND FEDERAL PRISONS UNDER SENTENCE OF DEATH.  THIS NUMBER,
HOWEVER, DOES NOT ACCOUNT FOR THOSE WHO MAY HAVE BEEN SENTENCED AND
RETAINED IN LOCAL FACILITIES DURING THE PENDENCY OF THEIR APPEALS. 
ACCEPTING WITH THIS RESERVATION THE NPS FIGURES AS A MINIMUM, THE MOST
RECENT STATISTICS SHOW THAT AT LEAST 1,057 PERSONS WERE SENTENCED TO
DEATH DURING THE DECADE OF THE 1960'S.  NPS, SUPRA, N. 18, AT 9. 

NO FULLY RELIABLE STATISTICS ARE AVAILABLE ON THE NATIONWIDE RATIO
OF DEATH SENTENCES TO CASES IN WHICH DEATH WAS A STATUTORILY
PERMISSIBLE PUNISHMENT.  AT ORAL ARGUMENT, COUNSEL FOR PETITIONER IN
NO. 69-5003 ESTIMATED THAT THE RATIO IS 12 OR 13 TO ONE.  TR. OF ORAL
ARG. IN FURMAN V. GEORGIA, NO. 69-5003, P. 11.  OTHERS HAVE FOUND A
HIGHER CORRELATION.  SEE MCGEE, CAPITAL PUNISHMENT AS SEEN BY A
CORRECTIONAL ADMINISTRATOR, 28 FED.PROB.,NO. 2, PP. 11, 12 (1964) (ONE
OUT OF EVERY FIVE, OR 20%, OF PERSONS CONVICTED OF MURDER RECEIVED THE
DEATH PENALTY IN CALIFORNIA); BEDAU, DEATH SENTENCES IN NEW JERSEY 1907
1960, 19 RUTGERS L.REV.  1 (1964) (BETWEEN 1916 AND 1955, 157 OUT OF
652 PERSONS CHARGED WITH MURDER RECEIVED THE DEATH SENTENCE IN NEW
JERSEY-- ABOUT 20%; BETWEEN 1956 AND 1960, 13 OUT OF 61 RECEIVED THE
DEATH SENTENCE-- ALSO ABOUT 20%); H. KALVEN & H. ZIESEL, THE AMERICAN
JURY 435-436 (1966) (21 OUT OF 111 MURDER CASES RESULTED IN DEATH
SENTENCES DURING THREE REPRESENTATIVE YEARS DURING THE MID-1950'S); SEE
ALSO KOENINGER, CAPITAL PUNISHMENT IN TEXAS, 1924-1968, 15 CRIME &
DELIN.  132 (1969). 

/20/  SEE, E.G., PEOPLE V. ANDERSON, 6 CAL.3D 628, 493 P.2D 880,
CERT. DENIED, 406 U.S. 958 (1972); GOLDBERG & DERSHOWITZ, DECLARING THE
DEATH PENALTY UNCONSTITUTIONAL, 83 HARV.L.REV.  1173, 1783 (1970).  BUT
SEE F. FRANKFURTER, OF LAW AND MEN 97-98 (1956) (REPRINT OF TESTIMONY
BEFORE THE ROYAL COMMISSION ON CAPITAL PUNISHMENT). 

/21/  NINE STATES HAVE ABOLISHED CAPITAL PUNISHMENT WITHOUT RESORT
TO THE COURTS.  SEE H. BEDAU, SUPRA, N. 17, AT 39.  CALIFORNIA HAS BEEN
THE ONLY STATE TO ABOLISH CAPITAL PUNISHMENT JUDICIALLY.  PEOPLE V.
ANDERSON, SUPRA. 

/22/  HEARINGS ON S. 1760 BEFORE THE SUBCOMMITTEE ON CRIMINAL LAWS
AND PROCEDURES OF THE SENATE COMMITTEE ON THE JUDICIARY, 90TH CONG., 2D
SESS. (1968). 

/23/  CANADA HAS RECENTLY UNDERTAKEN A FIVE-YEAR EXPERIMENT--
SIMILAR TO THAT CONDUCTED IN ENGLAND-- ABOLISHING THE DEATH PENALTY FOR
MOST CRIMES.  STATS. OF CANADA 1967-1968, 16 & 17 ELIZ.  2, C. 15, P.
145.  HOWEVER, CAPITAL PUNISHMENT IS STILL PRESCRIBED FOR SOME CRIMES,
INCLUDING MURDER OF A POLICE OFFICER OR CORRECTIONS OFFICIAL, TREASON,
AND PIRACY. 

/24/  GREAT BRITAIN, AFTER MANY YEARS OF CONTROVERSY OVER THE DEATH
PENALTY, UNDERTOOK A FIVE-YEAR EXPERIMENT IN ABOLITION IN 1965.  MURDER
(ABOLITION OF DEATH PENALTY) ACT 1965, 2 PUB.GEN.ACTS, C. 71, P. 1577. 
ALTHOUGH ABOLITION FOR MURDER BECAME FINAL IN 1969, THE PENALTY WAS
RETAINED FOR SEVERAL CRIMES, INCLUDING TREASON, PIRACY, AND DOCKYARDS
ARSON. 

/25/  SEE N. 62, INFRA. 

/26/  SEE BEDAU, SUPRA, N. 17, AT 253. 

/27/  IBID.  (APPROXIMATELY 65% OF THE VOTERS APPROVED THE DEATH
PENALTY). 

/28/  SEE BEDAU, THE DEATH PENALTY IN AMERICA, 35 FED.PROB.,NO. 2,
PP. 32, 34 (1971). 

/29/  NATIONAL COMMISSION, SUPRA, N. 16, AT 1365. 

/30/  BEDAU, SUPRA, N. 17, AT 232.  SEE, E.G., STATE V. DAVIS, 158
CONN. 341, 356-359, 260 A.2D 587, 595-596 (1969), IN WHICH THE
CONNECTICUT SUPREME COURT POINTED OUT THAT THE STATE LEGISLATURE HAD
CONSIDERED THE QUESTION OF ABOLITION DURING THE 1961, 1963, 1965, 1967,
AND 1969 SESSIONS AND HAD "SPECIFICALLY DECLINED TO ABOLISH THE DEATH
PENALTY" EVERY TIME. 

/31/  391 U.S.,AT 519 AND N. 15.  SEE ALSO MCGAUTHA V. CALIFORNIA,
402 U.S.,AT 201-202; WILLIAMS V. NEW YORK, 337 U.S. 241, 253 (1949)
(MURPHY, J., DISSENTING) ("(IN OUR CRIMINAL COURTS THE JURY SITS AS THE
REPRESENTATIVE OF THE COMMUNITY"); W. DOUGLAS, WE THE JUDGES 389
(1956); HOLMES, LAW IN SCIENCE AND SCIENCE IN LAW, 12 HARV.L.REV.  443,
460 (1899). 

/32/  SEE N. 19, SUPRA. 

/33/  TR. OF ORAL ARG. IN AIKENS V. CALIFORNIA, NO. 68-5027, P. 21. 
ALTHOUGH THE PETITION FOR CERTIORARI IN THIS CASE WAS DISMISSED AFTER
ORAL ARGUMENT, AIKENS V. CALIFORNIA, 406 U.S. 813 (1972), THE SAME
COUNSEL ARGUED BOTH THIS CASE AND FURMAN.  HE STATED AT THE OUTSET THAT
HIS ARGUMENT WAS EQUALLY APPLICABLE TO EACH CASE. 

/34/  NATIONAL PRISONER STATISTICS, SUPRA, N. 18. 

/35/  FBI, UNIFORM CRIME REPORTS-- 1970, PP. 7-14 (1971). 

/36/  PUBLIC OPINION POLLS, WHILE OF LITTLE PROBATIVE RELEVANCE,
CORROBORATE SUBSTANTIALLY THE CONCLUSION DERIVED FROM EXAMINING
LEGISLATIVE ACTIVITY AND JURY SENTENCING-- OPINION ON CAPITAL
PUNISHMENT IS "FAIRLY DIVIDED."  LOUISIANA EX REL. FRANCIS V. RESWEBER,
329 U.S.AT 470 (FRANKFURTER, J., CONCURRING).  SEE, E.G., WITHERSPOON
V. ILLINOIS, 391 U.S.,AT 520 N. 16 (1966 POLL FINDING 42% IN FAVOR OF
THE DEATH PENALTY AND 47% OPPOSED); GOLDBERG & DERSHOWITZ, SUPRA, N.
20, AT 1781 N. 39 (1969 POLL SHOWS 51% IN FAVOR OF RETENTION-- THE SAME
PERCENTAGE AS IN 1960); H. BEDAU, THE DEATH PENALTY IN AMERICA 231-241
(1967 REV. ED.); BEDAU, THE DEATH PENALTY IN AMERICA, 35 FED.PROB.,NO.
2, PP. 32, 34-35 (1971). 

/37/  IF, AS PETITIONERS SUGGEST, THE JUDICIAL BRANCH ITSELF
REFLECTS THE PREVAILING STANDARDS OF HUMAN DECENCY IN OUR SOCIETY, IT
MAY BE RELEVANT TO NOTE THE CONCLUSION REACHED BY STATE COURTS IN
RECENT YEARS ON THE QUESTION OF THE ACCEPTABILITY OF CAPITAL
PUNISHMENT.  IN THE LAST FIVE YEARS ALONE, SINCE THE DE FACTO
"MORATORIUM" ON EXECUTIONS BEGAN (SEE N. 18, SUPRA), THE APPELLATE
COURTS OF 26 STATES HAVE PASSED ON THE CONSTITUTIONALITY OF THE DEATH
PENALTY UNDER THE EIGHTH AMENDMENT AND UNDER SIMILAR PROVISIONS OF MOST
STATE CONSTITUTIONS.  EVERY COURT, EXCEPT THE CALIFORNIA SUPREME COURT,
PEOPLE V. ANDERSON, 6 CAL.3D 628, 493 P.2D 880, CERT. DENIED, 406 U.S.
958 (1972), HAS FOUND THE PENALTY TO BE CONSTITUTIONAL.  THOSE STATES,
AND THE YEAR OF THE MOST RECENT DECISION ON THE ISSUE, ARE:  ALABAMA
(1971); ARIZONA (1969); COLORADO (1967); CONNECTICUT (1969); DELAWARE
(1971); FLORIDA (1969); GEORGIA (1971); ILLINOIS (1970); KANSAS (1968);
KENTUCKY (1971); LOUISIANA (1971); MARYLAND (1971); MISSOURI (1971);
NEBRASKA (1967); NEVADA (1970); NEW JERSEY (1971); NEW MEXICO (1969);
NORTH CAROLINA (1972); OHIO (1971); OKLAHOMA (1971); SOUTH CAROLINA
(1970); TEXAS (1971); UTAH (1969); VIRGINIA (1971); WASHINGTON (1971). 
WHILE THE MAJORITY OF THESE STATE COURT OPINIONS DO NOT GIVE THE ISSUE
MORE THAN SUMMARY EXPOSITION, MANY HAVE CONSIDERED THE QUESTION AT SOME
LENGTH, AND, INDEED, SOME HAVE CONSIDERED THE ISSUE UNDER THE "EVOLVING
STANDARDS" RUBRIC.  SEE, E.G., STATE V. DAVIS, 158 CONN. 341, 356-359,
260 A.2D 587, 595-596 (1969); STATE V. CROOK, 253 LA. 961, 967-970, 221
SO.2D 473, 475-476 (1969); BARTHOLOMEY V. STATE, 260 MD. 504, 273 A.2D
164 (1971); STATE V. ALVAREZ, 182 NEB. 358, 366-367, 154 N.W.2D 746,
751-752 (1967); STATE V. PACE, 80 N.M. 364, 371-372, 456 P.2D 197, 204
205 (1969).  EVERY FEDERAL COURT THAT HAS PASSED ON THE ISSUE HAS RULED
THAT THE DEATH PENALTY IS NOT PER SE UNCONSTITUTIONAL.  SEE, E.G.,
RALPH V. WARDEN, 438 F.2D 786, 793 (CA4 1970); JACKSON V. DICKSON, 325
F.2D 573, 575 (CA9 1963), CERT. DENIED, 377 U.S. 957 (1964). 

/38/  BRIEF FOR PETITIONER IN NO. 68-5027, P. 51.  ALTHOUGH THE
AIKENS CASE IS NO LONGER BEFORE US (SEE N. 33, SUPRA), THE PETITIONERS
IN FURMAN AND JACKSON HAVE INCORPORATED PETITIONER'S BRIEF IN AIKENS BY
REFERENCE.  SEE BRIEF FOR PETITIONER IN NO. 69-5003, PP. 11012; BRIEF
FOR PETITIONER IN NO. 69-5030, PP. 11-12. 

/39/  IN 1935 AVAILABLE STATISTICS INDICATE THAT 184 CONVICTED
MURDERERS WERE EXECUTED.  THAT IS THE HIGHEST ANNUAL TOTAL FOR ANY YEAR
SINCE STATISTICS HAVE BECOME AVAILABLE.  NPS, SUPRA, N. 18.  THE YEAR
1935 IS CHOSEN BY PETITIONERS IN STATING THEIR THESIS: 

"IF, IN FACT, 184 MURDERERS WERE TO BE EXECUTED IN THIS YEAR 1971,
WE SUBMIT IT IS PALPABLE THAT THE PUBLIC CONSCIENCE OF THE NATION WOULD
BE PROFOUNDLY AND FUNDAMENTALLY REVOLTED, AND THAT THE DEATH PENALTY
FOR MURDER WOULD BE ABOLISHED FORTHWITH AS THE ATAVISTIC HORROR THAT IT
IS."  BRIEF FOR PETITIONER IN NO. 68-5027, P. 26 (SEE N. 38, SUPRA). 
/40/  NOT ALL MURDERS, AND CERTAINLY NOT ALL CRIMES, ARE COMMITTED BY
PERSONS CLASSIFIABLE AS "UNDERPRIVILEGED."  MANY CRIMES OF VIOLENCE ARE
COMMITTED BY PROFESSIONAL CRIMINALS WHO WILLINGLY CHOOSE TO PREY UPON
SOCIETY AS AN EASY AND REMUNERATIVE WAY OF LIFE.  MOREOVER, THE TERMS
"UNDERPRIVILEGED," THE "POOR" AND THE "POWERLESS" ARE RELATIVE AND
INEXACT, OFTEN CONVEYING SUBJECTIVE CONNOTATIONS WHICH VARY WIDELY
DEPENDING UPON THE VIEWPOINT AND PURPOSE OF THE USER. 

/41/  SIMILARLY, MR. JUSTICE WHITE EXHIBITS CONCERN FOR A LACK OF
ANY "MEANINGFUL BASIS FOR DISTINGUISHING THE FEW CASES IN WHICH (THE
DEATH PENALTY) IS IMPOSED FROM THE MANY CASES IN WHICH IT IS NOT." 
ANTE, AT 313.  MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL TREAT THE
ARBITRARINESS QUESTION IN THE SAME MANNER THAT IT IS HANDLED BY
PETITIONERS-- AS AN ELEMENT OF THE APPROACH CALLING FOR TOTAL
ABOLITION. 

/42/  IN MORISSETTE V. UNITED STATES, 342 U.S. 246 (1952), MR.
JUSTICE JACKSON SPOKE OF THE "TARDY AND UNFINISHED SUBSTITUTION OF
DETERRENCE AND REFORMATION IN PLACE OF RETALIATION AND VENGEANCE AS THE
MOTIVATION FOR PUBLIC PROSECUTION."  ID., AT 251.  HE ALSO NOTED THAT
THE PENALTIES FOR INVASIONS OF THE RIGHTS OF PROPERTY ARE HIGH AS A
CONSEQUENCE OF THE "PUBLIC DEMAND FOR RETRIBUTION."  ID., AT 260. 

/43/  SEE ALSO MASSIAH V. UNITED STATES, 377 U.S. 201, 207 (1964)
(WHITE, J., DISSENTING) (NOTING THE EXISTENCE OF A "PROFOUND DISPUTE
ABOUT WHETHER WE SHOULD PUNISH, DETER, REHABILITATE OR CURE"); ROBINSON
V. CALIFORNIA, 370 U.S.,AT 674 (DOUGLAS, J., CONCURRING); LOUISIANA EX
REL. FRANCIS V. RESWEBER, 329 U.S.,AT 470-471 (MR. JUSTICE
FRANKFURTER'S ADMONITION THAT THE COURT IS NOT EMPOWERED TO ACT SIMPLY
BECAUSE OF A "FEELING OF REVULSION AGAINST A STATE'S INSISTENCE ON ITS
POUND OF FLESH"); UNITED STATES V. LOVETT, 328 U.S. 303, 324 (1946)
(FRANKFURTER, J., CONCURRING) ("(PUNISHMENT PRESUPPOSES AN OFFENSE, NOT
NECESSARILY AN ACT PREVIOUSLY DECLARED CRIMINAL, BUT AN ACT FOR WHICH
RETRIBUTION IS EXACTED"). 

/44/  ROYAL COMMISSION ON CAPITAL PUNISHMENT, MINUTES OF EVIDENCE
207 (1949-1953). 

/45/  REPORT OF ROYAL COMMISSION ON CAPITAL PUNISHMENT, 1949-1953,
CMD.  8932, PARA. 53, P. 18. 

/46/  M. COHEN, REASON AND LAW 50 (1950); H. PACKER, THE LIMITS OF
THE CRIMINAL SANCTION 11-12 (1968); HART, THE AIMS OF THE CRIMINAL LAW,
23 LAW & CONTEMP.PROB.  401 (1958). 

/47/  THE AUTHORITIES ARE COLLECTED IN COMMENT, THE DEATH PENALTY
CASES, 56 CALIF.L.REV.  1268, 1297-1301 (1968).  THE COMPETING
CONTENTIONS ARE SUMMARIZED IN THE WORKING PAPERS OF THE NATIONAL
COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, SUPRA, N. 16, AT 1358
1359.  SEE ALSO THE PERSUASIVE TREATMENT OF THIS ISSUE BY DR. KARL
MENNINGER IN THE CRIME OF PUNISHMENT 190-218 (1966). 

/48/  SEE, E.G., H. BEDAU, THE DEATH PENALTY IN AMERICA 260 (1967
REV. ED.); NATIONAL COMMISSION, SUPRA, N. 16, AT 1352. 

/49/  SEE SELLIN, SUPRA, N. 16, AT 19-52. 

/50/  THE COUNTERVAILING CONSIDERATIONS, TENDING TO UNDERCUT THE
FORCE OF PROFESSOR SELLIN'S STATISTICAL STUDIES, ARE COLLECTED IN
NATIONAL COMMISSION, SUPRA, N. 16, AT 1354; BEDAU, SUPRA, N. 48, AT 265
266; HART, MURDER AND THE PRINCIPLES OF PUNISHMENT:  ENGLAND AND THE
UNITED STATES, 52 NW.U.L.REV.  433, 455-460 (1957). 

/51/  REPORT OF THE ROYAL COMMISSION, SUPRA, N. 45, PARA. 68, AT
24. 

/52/  IT IS WORTHY OF NOTE THAT THE HEART OF THE ARGUMENT HERE--
THAT THERE ARE NO LEGITIMATE JUSTIFICATIONS-- WAS IMPLIEDLY REPUDIATED
LAST TERM BY BOTH THE MAJORITY AND DISSENTING OPINIONS IN MCGAUTHA V.
CALIFORNIA, 402 U.S. 183 (1971).  THE ARGUMENT IN THAT CASE CENTERED ON
THE PROPOSITION THAT DUE PROCESS REQUIRES THAT THE STANDARDS GOVERNING
THE JURY'S EXERCISE OF ITS SENTENCING FUNCTION BE ELUCIDATED.  AS MR.
JUSTICE BRENNAN'S DISSENT MADE CLEAR, WHATEVER STANDARDS MIGHT BE
THOUGHT TO EXIST ARISE OUT OF THE LIST OF JUSTIFICATIONS FOR THE DEATH
PENALTY-- RETRIBUTION, DETERRENCE, ETC.  ID., AT 284.  IF NO SUCH
STANDARDS EXIST, THE CONTROVERSY LAST TERM WAS A HOLLOW ONE INDEED. 

/53/  JACKSON V. GEORGIA, NO. 69-5030; BRANCH V. TEXAS, NO. 69
5031. 

/54/  MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE BREWER, DISSENTED
SEPARATELY BUT AGREED THAT THE STATE HAD INFLICTED A CRUEL AND UNUSUAL
PUNISHMENT.  ID, AT 371. 

/55/  IN ADDITION TO THE STATES IN WHICH RAPE IS A CAPITAL OFFENSE,
STATUTES IN 28 STATES PRESCRIBE LIFE IMPRISONMENT AS A PERMISSIBLE
PUNISHMENT FOR AT LEAST SOME CATEGORY OF RAPE.  ALSO INDICATIVE OF THE
SERIOUSNESS WITH WHICH THE CRIME OF RAPE IS VIEWED, IS THE FACT THAT IN
NINE OF THE 10 STATES THAT HAVE ABOLISHED DEATH AS A PUNISHMENT FOR ANY
CRIME, THE MAXIMUM TERM OF YEARS FOR RAPE IS THE SAME AS FOR FIRST
DEGREE MURDER.  STATISTICAL STUDIES HAVE SHOWN THAT THE AVERAGE PRISON
TERM SERVED BY RAPISTS IS LONGER THAN FOR ANY CATEGORY OF OFFENSE OTHER
THAN MURDER.  J. MACDONALD, RAPE-- OFFENDERS AND THEIR VICTIMS 298
(1971). 

/56/  ID., AT 63-64; PACKER, MAKING THE PUNISHMENT FIT THE CRIME, 77
HARV.L.REV.  1071, 1077 (1964). 

/57/  SEE MACDONALD, SUPRA, N. 55, AT 314; CHAMBLISS, TYPES OF
DEVIANCE AND THE EFFECTIVENESS OF LEGAL SANCTIONS, 1967 WIS.L.REV. 
703. 

/58/  FBI, UNIFORM CRIME REPORTS-- 1970, P. 14 (1971) (DURING THE
1960'S THE INCIDENCE OF RAPE ROSE 121%). 

/59/  SEE TEXT ACCOMPANYING NN. 27 & 28, SUPRA. 

/60/  SEE N. 24, SUPRA. 

/61/  SEE N. 23, SUPRA. 

/62/  RECENT LEGISLATIVE ACTIVITY IN NEW YORK STATE SERVES TO
UNDERLINE THE PREFERABILITY OF LEGISLATIVE ACTION OVER CONSTITUTIONAL
ADJUDICATION.  NEW YORK ABOLISHED THE DEATH PENALTY FOR MURDER IN 1965,
LEAVING ONLY A FEW CRIMES FOR WHICH THE PENALTY IS STILL AVAILABLE. 
SEE TEXT ACCOMPANYING N. 25, SUPRA.  ON APRIL 27, 1972, A BILL THAT
WOULD HAVE RESTORED THE DEATH PENALTY WAS CONSIDERED BY THE STATE
ASSEMBLY.  AFTER SEVERAL HOURS OF HEATED DEBATE, THE BILL WAS NARROWLY
DEFEATED BY A VOTE OF 65 TO 59.  N.Y. TIMES, APR. 28, 1972, P. 1, COL.
1.  AFTER SEVEN YEARS OF DISUSE OF THE DEATH PENALTY THE
REPRESENTATIVES OF THE PEOPLE IN THAT STATE HAD NOT COME FINALLY TO
REST ON THE QUESTION OF CAPITAL PUNISHMENT.  BECAUSE THE 1965 DECISION
HAD BEEN THE PRODUCT OF THE POPULAR WILL IT COULD HAVE BEEN UNDONE BY
AN EXERCISE OF THE SAME DEMOCRATIC PROCESS.  NO SUCH FLEXIBILITY IS
PERMITTED WHEN ABOLITION, EVEN THOUGH NOT ABSOLUTE, FLOWS FROM
CONSTITUTIONAL ADJUDICATION. 

/63/  PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION
OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 143 (1967)
(CHAIRED BY NICHOLAS KATZENBACH, THEN ATTORNEY GENERAL OF THE UNITED
STATES).  THE TEXT OF THE REPORT STATED, AMONG OTHER THINGS, THAT THE
ABOLITION OF THE DEATH PENALTY "IS BEING WIDELY DEBATED IN THE STATES";
THAT IT IS "IMPOSSIBLE TO SAY WITH CERTAINTY WHETHER CAPITAL PUNISHMENT
SIGNIFICANTLY REDUCES THE INCIDENCE OF HEINOUS CRIMES"; THAT "(WHATEVER
VIEWS ONE MAY HAVE ON THE EFFICACY OF THE DEATH PENALTY AS A DETERRENT,
IT CLEARLY HAS AN UNDESIRABLE IMPACT ON THE ADMINISTRATION OF CRIMINAL
JUSTICE"; AND THAT "(ALL MEMBERS OF THE COMMISSION AGREE THAT THE
PRESENT SITUATION IN THE ADMINISTRATION OF THE DEATH PENALTY IN MANY
STATES IS INTOLERABLE."  IBID.  AS A MEMBER OF THIS PRESIDENTIAL
COMMISSION I SUBSCRIBED THEN, AND DO NOW, TO THE RECOMMENDATIONS AND
VIEWS ABOVE QUOTED. 

/64/  FINAL REPORT OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL
CRIMINAL LAWS 310 (1971). 

/65/  THE AMERICAN LAW INSTITUTE, AFTER YEARS OF STUDY, DECIDED NOT
TO TAKE AN OFFICIAL POSITION ON THE QUESTION OF CAPITAL PUNISHMENT,
ALTHOUGH THE ADVISORY COMMITTEE FAVORED ABOLITION BY A VOTE OF 18-2. 
THE COUNCIL WAS MORE EVENLY DIVIDED BUT ALL WERE IN AGREEMENT THAT MANY
STATES WOULD UNDOUBTEDLY RETAIN THE PUNISHMENT AND THAT, THEREFORE, THE
INSTITUTE'S EFFORTS SHOULD BE DIRECTED TOWARD PROVIDING STANDARDS FOR
ITS IMPLEMENTATION.  ALI, MODEL PENAL CODE 65 (TENT.  DRAFT NO. 9,
1959). 

/66/  SEE TEXT ACCOMPANYING NN. 26 THROUGH 30, SUPRA. 

/67/  BLODGETT V. HOLDEN, 275 U.S. 142, 148 (1927) (SEPARATE OPINION
OF HOLMES, J.).  SEE ALSO TROP V. DULLES, 356 U.S.,AT 128 (FRANKFURTER,
J., DISSENTING): 

"THE AWESOME POWER OF THIS COURT TO INVALIDATE . . . LEGISLATION,
BECAUSE IN PRACTICE IT IS BOUNDED ONLY BY OUR OWN PRUDENCE IN
DISCERNING THE LIMITS OF THE COURT'S CONSTITUTIONAL FUNCTION, MUST BE
EXERCISED WITH THE UTMOST RESTRAINT." 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE POWELL JOIN, DISSENTING. 

THE COURT'S JUDGMENTS TODAY STRIKE DOWN A PENALTY THAT OUR NATION'S
LEGISLATORS HAVE THOUGHT NECESSARY SINCE OUR COUNTRY WAS FOUNDED.  MY
BROTHERS DOUGLAS, BRENNAN, AND MARSHALL WOULD AT ONE FELL SWOOP
INVALIDATE LAWS ENACTED BY CONGRESS AND 40 OF THE 50 STATE
LEGISLATURES, AND WOULD CONSIGN TO THE LIMBO OF UNCONSTITUTIONALITY
UNDER A SINGLE RUBRIC PENALTIES FOR OFFENSES AS VARIED AND UNIQUE AS
MURDER, PIRACY, MUTINY, HIGHJACKING, AND DESERTION IN THE FACE OF THE
ENEMY.  MY BROTHERS STEWART AND WHITE, ASSERTING RELIANCE ON A MORE
LIMITED RATIONALE-- THE RELUCTANCE OF JUDGES AND JURIES ACTUALLY TO
IMPOSE THE DEATH PENALTY IN THE MAJORITY OF CAPITAL CASES-- JOIN IN THE
JUDGMENTS IN THESE CASES.  WHATEVER ITS PRECISE RATIONALE, TODAY'S
HOLDING NECESSARILY BRINGS INTO SHARP RELIEF THE FUNDAMENTAL QUESTION
OF THE ROLE OF JUDICIAL REVIEW IN A DEMOCRATIC SOCIETY.  HOW CAN
GOVERNMENT BY THE ELECTED REPRESENTATIVES OF THE PEOPLE CO-EXIST WITH
THE POWER OF THE FEDERAL JUDICIARY, WHOSE MEMBERS ARE CONSTITUTIONALLY
INSULATED FROM RESPONSIVENESS TO THE POPULAR WILL, TO DECLARE INVALID
LAWS DULY ENACTED BY THE POPULAR BRANCHES OF GOVERNMENT? 

THE ANSWER, OF COURSE, IS FOUND IN HAMILTON'S FEDERALIST PAPER NO.
78 AND IN CHIEF JUSTICE MARSHALL'S CLASSIC OPINION IN MARBURY V.
MADISON, 1 CRANCH 137 (1803).  AN OFT-TOLD STORY SINCE THEN, IT BEARS
SUMMARIZATION ONCE MORE.  SOVEREIGNTY RESIDES ULTIMATELY IN THE PEOPLE
AS A WHOLE AND, BY ADOPTING THROUGH THEIR STATES A WRITTEN CONSTITUTION
FOR THE NATION AND SUBSEQUENTLY ADDING AMENDMENTS TO THAT INSTRUMENT,
THEY HAVE BOTH GRANTED CERTAIN POWERS TO THE NATIONAL GOVERNMENT, AND
DENIED OTHER POWERS TO THE NATIONAL AND THE STATE GOVERNMENTS.  COURTS
ARE EXERCISING NO MORE THAN THE JUDICIAL FUNCTION CONFERRED UPON THEM
BY ART. III OF THE CONSTITUTION WHEN THEY ASSESS, IN A CASE BEFORE
THEM, WHETHER OR NOT A PARTICULAR LEGISLATIVE ENACTMENT IS WITHIN THE
AUTHORITY GRANTED BY THE CONSTITUTION TO THE ENACTING BODY, AND WHETHER
IT RUNS AFOUL OF SOME LIMITATION PLACED BY THE CONSTITUTION ON THE
AUTHORITY OF THAT BODY.  FOR THE THEORY IS THAT THE PEOPLE THEMSELVES
HAVE SPOKEN IN THE CONSTITUTION, AND THEREFORE ITS COMMANDS ARE
SUPERIOR TO THE COMMANDS OF THE LEGISLATURE, WHICH IS MERELY AN AGENT
OF THE PEOPLE. 

THE FOUNDING FATHERS THUS WISELY SOUGHT TO HAVE THE BEST OF BOTH
WORLDS, THE UNDENIABLE BENEFITS OF BOTH DEMOCRATIC SELF-GOVERNMENT AND
INDIVIDUAL RIGHTS PROTECTED AGINST POSSIBLE EXCESSES OF THAT FORM OF
GOVERNMENT. 

THE COURTS IN CASES PROPERLY BEFORE THEM HAVE BEEN ENTRUSTED UNDER
THE CONSTITUTION WITH THE LAST WORD, SHORT OF CONSTITUTIONAL AMENDMENT,
AS TO WHETHER A LAW PASSED BY THE LEGISLATURE CONFORMS TO THE
CONSTITUTION.  BUT JUST BECAUSE COURTS IN GENERAL, AND THIS COURT IN
PARTICULAR, DO HAVE THE LAST WORD, THE ADMONITION OF MR. JUSTICE STONE
DISSENTING IN UNITED STATES V. BUTLER MUST BE CONSTANTLY BORNE IN
MIND: 

"(WHILE UNCONSTITUTIONAL EXERCISE OF POWER BY THE EXECUTIVE AND
LEGISLATIVE BRANCHES OF THE GOVERNMENT IS SUBJECT TO JUDICIAL
RESTRAINT, THE ONLY CHECK UPON OUR OWN EXERCISE OF POWER IS OUR OWN
SENSE OF SELF-RESTRAINT."  297 U.S. 1, 78-79, (1936).  RIGOROUS
ATTENTION TO THE LIMITS OF THIS COURT'S AUTHORITY IS LIKEWISE ENJOINED
BECAUSE OF THE NATURAL DESIRE THAT BEGUILES JUDGES ALONG WITH OTHER
HUMAN BEINGS INTO IMPOSING THEIR OWN VIEWS OF GOODNESS, TRUTH, AND
JUSTICE UPON OTHERS.  JUDGES DIFFER ONLY IN THAT THEY HAVE THE POWER,
IF NOT THE AUTHORITY, TO ENFORCE THEIR DESIRES.  THIS IS DOUBTLESS WHY
NEARLY TWO CENTURIES OF JUDICIAL PRECEDENT FROM THIS COURT COUNSEL THE
SPARING USE OF THAT POWER.  THE MOST EXPANSIVE READING OF THE LEADING
CONSTITUTIONAL CASES DOES NOT REMOTELY SUGGEST THAT THIS COURT HAS BEEN
GRANTED A ROVING COMMISSION, EITHER BY THE FOUNDING FATHERS OR BY THE
FRAMERS OF THE FOURTEENTH AMENDMENT, TO STRIKE DOWN LAWS THAT ARE BASED
UPON NOTIONS OF POLICY OR MORALITY SUDDENLY FOUND UNACCEPTABLE BY A
MAJORITY OF THIS COURT.  THE FRAMERS OF THE CONSTITUTION WOULD
DOUBTLESS HAVE AGREED WITH THE GREAT ENGLISH POLITICAL PHILOSOPHER JOHN
STUART MILL WHEN HE OBSERVED: 

"THE DISPOSITION OF MANKIND, WHETHER AS RULES OR AS FELLOW-CITIZENS,
TO IMPOSE THEIR OWN OPINIONS AND INCLINATIONS AS A RULE OF CONDUCT ON
OTHERS, IS SO ENERGETICALLY SUPPORTED BY SOME OF THE BEST AND BY SOME
OF THE WORST FEELINGS INCIDENT TO HUMAN NATURE, THAT IT IS HARDLY EVER
KEPT UNDER RESTRAINT BY ANYTHING BUT WANT OF POWER."  ON LIBERTY 28
(1885).  A SEPARATE REASON FOR DEFERENCE TO THE LEGISLATIVE JUDGMENT IS
THE CONSEQUENCE OF HUMAN ERROR ON THE PART OF THE JUDICIARY WITH
RESPECT TO THE CONSTITUTIONAL ISSUE BEFORE IT.  HUMAN ERROR THERE IS
BOUND TO BE, JUDGES BEING MEN AND WOMEN, AND MEN AND WOMEN BEING WHAT
THEY ARE.  BUT AN ERROR IN MISTAKENLY SUSTAINING THE CONSTITUTIONALITY
OF A PARTICULAR ENACTMENT, WHILE WRONGFULLY DEPRIVING THE INDIVIDUAL OF
A RIGHT SECURED TO HIM BY THE CONSTITUTION, NONETHELESS DOES SO BY
SIMPLY LETTING STAND A DULY ENACTED LAW OF A DEMOCRATICALLY CHOSEN
LEGISLATIVE BODY.  THE ERROR RESULTING FROM A MISTAKEN UPHOLDING OF AN
INDIVIDUAL'S CONSTITUTIONAL CLAIM AGAINST THE VALIDITY OF A LEGISLATIVE
ENACTMENT IS A GOOD DEAL MORE SERIOUS.  FOR THE RESULT IN SUCH A CASE
IS NOT TO LEAVE STANDING A LAW DULY ENACTED BY A REPRESENTATIVE
ASSEMBLY, BUT TO IMPOSE UPON THE NATION THE JUDICIAL FLAT OF A MAJORITY
OF A COURT OF JUDGES WHOSE CONNECTION WITH THE POPULAR WILL IS REMOTE
AT BEST.     THE TASK OF JUDGING CONSTITUTIONAL CASES IMPOSED BY ART.
III CANNOT FOR THIS REASON BE AVOIDED, BUT IT MUST SURELY BE APPROACHED
WITH THE DEEPEST HUMILITY AND GENUINE DEFERENCE TO LEGISLATIVE
JUDGMENT.  TODAY'S DECISION TO INVALIDATE CAPITAL PUNISHMENT IS, I
RESPECTFULLY SUBMIT, SIGNIFICANTLY LACKING IN THOSE ATTRIBUTES.  FOR
THE REASONS WELL STATED IN THE OPINIONS OF THE CHIEF JUSTICE, MR.
JUSTICE BLACKMUN, AND MR. JUSTICE POWELL, I CONCLUDE THAT THIS DECISION
HOLDING UNCONSTITUTIONAL CAPITAL PUNISHMENT IS NOT AN ACT OF JUDGMENT,
BUT RATHER AN ACT OF WILL.  IT COMPLETELY IGNORES THE STRICTURES OF MR.
JUSTICE HOLMES, WRITING MORE THAN 40 YEARS AGO IN BALDWIN V. MISSOURI: 

"I HAVE NOT YET ADEQUATELY EXPRESSED THE MORE THAN ANXIETY THAT I
FEEL AT THE EVER INCREASING SCOPE GIVEN TO THE FOURTEENTH AMENDMENT IN
CUTTING DOWN WHAT I BELIEVE TO BE THE CONSTITUTIONAL RIGHTS OF THE
STATES.  AS THE DECISIONS NOW STAND, I SEE HARDLY ANY LIMIT BUT THE SKY
TO THE INVALIDATING OF THOSE RIGHTS IF THEY HAPPEN TO STRIKE A MAJORITY
OF THIS COURT AS FOR ANY REASON UNDESIRABLE.  I CANNOT BELIEVE THAT THE
AMENDMENT WAS INTENDED TO GIVE US CARTE BLANCE TO EMBODY OUR ECONOMIC
OR MORAL BELIEFS IN ITS PROHIBITIONS.  YET I CAN THINK OF NO NARROWER
REASON THAT SEEMS TO ME TO JUSTIFY THE PRESENT AND THE EARLIER
DECISIONS TO WHICH I HAVE REFERRED.  OF COURSE THE WORDS 'DUE PROCESS
OF LAW,' IF TAKEN IN THEIR LITERAL MEANING, HAVE NO APPLICATION TO THIS
CASE; AND WHILE IT IS TOO LATE TO DENY THAT THEY HAVE BEEN GIVEN A MUCH
MORE EXTENDED AND ARTIFICIAL SIGNIFICATION, STILL WE OUGHT TO REMEMBER
THE GREAT CAUTION SHOWN BY THE CONSTITUTION IN LIMITING THE POWER OF
THE STATES, AND SHOULD BE SLOW TO CONSTRUE THE CLAUSE IN THE FOURTEENTH
AMENDMENT AS COMMITTING TO THE COURT, WITH NO GUIDE BUT THE COURT'S OWN
DISCRETION, THE VALIDITY OF WHATEVER LAWS THE STATES MAY PASS."  281
U.S. 586, 595 (1930) (DISSENTING OPINION).  MORE THAN 20 YEARS AGO,
JUSTICE JACKSON MADE A SIMILAR OBSERVATION WITH RESPECT TO THIS COURT'S
RESTRICTION OF THE STATES IN THE ENFORCEMENT OF THEIR OWN CRIMINAL
LAWS: 

     "THE USE OF THE DUE PROCESS CLAUSE TO DISABLE THE STATES IN

  PROTECTION OF SOCIETY FROM CRIME IS QUITE AS DANGEROUS AND

  DELICATE A USE OF FEDERAL JUDICIAL POWER AS TO USE IT TO DISABLE

  THEM FROM SOCIAL OR ECONOMIC EXPERIMENTATION."  ASHCRAFT V.

  TENNESSEE, 322 U.S. 143, 174 (1944) (DISSENTING OPINION). 

IF THERE CAN BE SAID TO BE ONE DOMINANT THEME IN THE CONSTITUTION,
PERHAPS MORE FULLY ARTICULATED IN THE FEDERALIST PAPERS THAN IN THE
INSTRUMENT ITSELF, IT IS THE NOTION OF CHECKS AND BALANCES.  THE
FRAMERS WERE WELL AWARE OF THE NATURAL DESIRE OF OFFICE HOLDERS AS WELL
AS OTHERS TO SEEK TO EXPAND THE SCOPE AND AUTHORITY OF THEIR PARTICULAR
OFFICE AT THE EXPENSE OF OTHERS.  THEY SOUGHT TO PROVIDE AGAINST
SUCCESS IN SUCH EFFORTS BY ERECTING ADEQUATE CHECKS AND BALANCES IN THE
FORM OF GRANTS OF AUTHORITY TO EACH BRANCH OF THE GOVERNMENT IN ORDER
TO COUNTERACT AND PREVENT USURPATION ON THE PART OF THE OTHERS. 

THIS PHILOSOPHY OF THE FRAMERS IS BEST DESCRIBED BY ONE OF THE
ABLEST AND GREATEST OF THEIR NUMBER, JAMES MADISON, IN FEDERALIST NO.
51: 

"IN FRAMING A GOVERNMENT WHICH IS TO BE ADMINISTERED BY MEN OVER
MEN, THE GREAT DIFFICULTY LIES IN THIS:  YOU MUST FIRST ENABLE THE
GOVERNMENT TO CONTROUL THE GOVERNED; AND IN THE NEXT PLACE, OBLIGE IT
TO CONTROUL ITSELF." 

MADISON'S OBSERVATION APPLIES TO THE JUDICIAL BRANCH WITH AT LEAST
AS MUCH FORCE AS TO THE LEGISLATIVE AND EXECUTIVE BRANCHES.  WHILE
OVERREACHING BY THE LEGISLATIVE AND EXECUTIVE BRANCHES MAY RESULT IN
THE SACRIFICE OF INDIVIDUAL PROTECTIONS THAT THE CONSTITUTION WAS
DESIGNED TO SECURE AGAINST ACTION OF THE STATE, JUDICIAL OVERREACHING
MAY RESULT IN SACRIFICE OF THE EQUALLY IMPORTANT RIGHT OF THE PEOPLE TO
GOVERN THEMSELVES.  THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT WERE "NEVER INTENDED TO DESTROY THE STATES' POWER
TO GOVERN THEMSELVES."  BLACK, J., IN OREGON V. MITCHELL, 400 U.S. 112,
126 (1970). 

THE VERY NATURE OF JUDICIAL REVIEW, AS POINTED OUT BY JUSTICE STONE
IN HIS DISSENT IN THE BUTLER CASE, MAKES THE COURTS THE LEAST SUBJECT
TO MADISONIAN CHECK IN THE EVENT THAT THEY SHALL, FOR THE BEST OF
MOTIVES, EXPAND JUDICIAL AUTHORITY BEYOND THE LIMITS CONTEMPLATED BY
THE FRAMERS.  IT IS FOR THIS REASON THAT JUDICIAL SELF-RESTRAINT IS
SURELY AN IMPLIED, IF NOT AN EXPRESSED, CONDITION OF THE GRANT OF
AUTHORITY OF JUDICIAL REVIEW.  THE COURT'S HOLDING IN THESE CASES HAS
BEEN REACHED, I BELIEVE, IN COMPLETE DISREGARD OF THAT IMPLIED
CONDITION. 

ANTHONY G. AMSTERDAM ARGUED THE CAUSE FOR PETITIONER IN NO. 69
5003.  WITH HIM ON THE BRIEF WERE B. CLARENCE MAYFIELD, MICHAEL
MELTSNER, JACK GREENBERG, JAMES M. NABRIT III, JACK HIMMELSTEIN, AND
ELIZABETH B. DUBOIS.  MR. GREENBERG ARGUED THE CAUSE FOR PETITIONER IN
NO. 69-5030.  WITH HIM ON THE BRIEF WERE MESSRS.  MELTSNER, AMSTERDAM,
NABRIT, HIMMELSTEIN, AND MRS. DUBOIS.  MELVYN CARSON BRUDER ARGUED THE
CAUSE AND FILED A BRIEF FOR PETITIONER IN NO. 69-5031. 

DOROTHY T. BEASLEY, ASSISTANT ATTORNEY GENERAL OF GEORGIA, ARGUED
THE CAUSE FOR RESPONDENT IN NOS. 69-5003 AND 59-5030.  WITH HER ON THE
BRIEFS WERE ARTHUR K. BOLTON, ATTORNEY GENERAL, HAROLD N. HILL, JR.,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, COURTNEY WILDER STANTON,
ASSISTANT ATTORNEY GENERAL, AND ANDREW J. RYAN, JR. CHARLES ALAN WRIGHT
ARGUED THE CAUSE FOR RESPONDENT IN NO. 69-5031.  WITH HIM ON THE BRIEF
WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, ALFRED WALKDER, EXECUTIVE ASSISTANT
ATTORNEY GENERAL, AND ROBERT C. FLOWERS AND GLENN R. BROWN, ASSISTANT
ATTORNEY GENERAL. 

THEODORE L. SENDAK, ATTORNEY GENERAL, AND DAVID O. GIVENS, DEPUTY
ATTORNEY GENERAL, FILED A BRIEF FOR THE STATE OF INDIANA AS AMICUS
CURIAE URGING AFFIRMANCE IN NO. 69-5003.  PAUL RAYMOND STONE FILED A
BRIEF FOR THE WEST VIRGINIA COUNCIL OF CHURCHES ET AL. AS AMICI CURIAE
URGING REVERSAL IN NOS. 69-5003 AND 69-5030.  JOHN E. HAVELOCK,
ATTORNEY GENERAL, FILED A BRIEF FOR THE STATE OF ALASKA AS AMICUS
CURIAE IN NOS. 69-5003 AND 69-5030.  BRIEFS OF AMICUS CURIAE IN ALL
THREE CASES WERE FILED BY GERALD H. GOTTLIEB, MELVIN L. WULF, AND
SANFORD JAY ROSEN FOR THE AMERICAN CIVIL LIBERTIES UNION; BY LEO
PFEFFER FOR THE SYNAGOGUE COUNCIL OF AMERICA ET AL.; BY CHAUNCEY
ESKRIDGE, MARIO G. OBLEDO, LEROY D. CLARK, NATHANIEL R. JONES, AND
VERNON JORDAN FOR THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE ET AL.; BY MICHAEL V. DISALLE FOR EDMUND C. BROWN ET
AL.; AND BY HILBERT P. ZARKY AND MARC I. HAYUTIN FOR JAMES V. BENNETT
ET AL.
..END :















MORRISSEY V. BREWER, 408 U.S. 471 


       MORRISSEY ET AL. V. BREWER, WARDEN, ET AL.

  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 71-5103.  ARGUED APRIL 11, 1972-- DECIDED JUNE 29,
1972 


PETITIONERS IN THESE HABEAS CORPUS PROCEEDINGS CLAIMED THAT THEIR
PAROLES WERE REVOKED WITHOUT A HEARING AND THAT THEY WERE THEREBY
DEPRIVED OF DUE PROCESS.  THE COURT OF APPEALS, IN AFFIRMING THE
DISTRICT COURT'S DENIAL OF RELIEF, REASONED THAT UNDER CONTROLLING
AUTHORITIES PAROLE IS ONLY "A CORRECTIONAL DEVICE AUTHORIZING SERVICE
OF SENTENCE OUTSIDE A PENITENTIARY," AND CONCLUDED THAT A PAROLEE, WHO
IS STILL "IN CUSTODY," IS NOT ENTITLED TO A FULL ADVERSARY HEARING SUCH
AS WOULD BE MANDATED IN A CRIMINAL PROCEEDING.  HELD: 

1.  THOUGH PAROLE REVOCATION DOES NOT CALL FOR THE FULL PANOPLY OF
RIGHTS DUE A DEFENDANT IN A CRIMINAL PROCEEDING, A PAROLEE'S LIBERTY
INVOLVES SIGNIFICANT VALUES WITHIN THE PROTECTION OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT, AND TERMINATION OF THAT LIBERTY
REQUIRES AN INFORMAL HEARING TO GIVE ASSURANCE THAT THE FINDING OF A
PAROLE VIOLATION IS BASED ON VERIFIED FACTS TO SUPPORT THE REVOCATION. 
PP. 480-482. 

2.  DUE PROCESS REQUIRES A REASONABLY PROMPT INFORMAL INQUIRY
CONDUCTED BY AN IMPARTIAL HEARING OFFICER NEAR THE PLACE OF THE ALLEGED
PAROLE VIOLATION OR ARREST TO DETERMINE IF THERE IS REASONABLE GROUND
TO BELIEVE THAT THE ARRESTED PAROLEE HAS VIOLATED A PAROLE CONDITION. 
THE PAROLEE SHOULD RECEIVE PRIOR NOTICE OF THE INQUIRY, ITS PURPOSE,
AND THE ALLEGED VIOLATIONS.  THE PAROLEE MAY PRESENT RELEVANT
INFORMATION AND (ABSENT SECURITY CONSIDERATIONS) QUESTION ADVERSE
INFORMANTS.  THE HEARING OFFICER SHALL DIGEST THE EVIDENCE ON PROBABLE
CAUSE AND STATE THE REASONS FOR HOLDING THE PAROLEE FOR THE PAROLE
BOARD'S DECISION.  PP. 484-487. 

3.  AT THE REVOCATION HEARING, WHICH MUST BE CONDUCTED REASONABLY
SOON AFTER THE PAROLEE'S ARREST, MINIMUM DUE PROCESS REQUIREMENTS ARE:
(A) WRITTEN NOTICE OF THE CLAIMED VIOLATIONS OF PAROLE; (B) DISCLOSURE
TO THE PAROLEE OF EVIDENCE AGAINST HIM; (C) OPPORTUNITY TO BE HEARD IN
PERSON AND TO PRESENT WITNESSES AND DOCUMENTARY EVIDENCE; (D) THE RIGHT
TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES (UNLESS THE HEARING
OFFICER SPECIFICALLY FINDS GOOD CAUSE FOR NOT ALLOWING CONFRONTATION);
(E) A "NEUTRAL AND DETACHED" HEARING BODY SUCH AS A TRADITIONAL PAROLE
BOARD, MEMBERS OF WHICH NEED NOT BE JUDICIAL OFFICERS OR LAWYERS; AND
(F) A WRITTEN STATEMENT BY THE FACTFINDERS AS TO THE EVIDENCE RELIED ON
AND REASONS FOR REVOKING PAROLE.  PP. 487-490. 

443 F.2D 942, REVERSED AND REMANDED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BRENNAN, J.,
FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH MARSHALL, J.,
JOINED, POST, P. 490.  DOUGLAS, J., FILED AN OPINION DISSENTING IN
PART, POST, P. 491. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO DETERMINE WHETHER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES THAT A STATE AFFORD
AN INDIVIDUAL SOME OPPORTUNITY TO BE HEARD PRIOR TO REVOKING HIS
PAROLE. 

PETITIONER MORRISSEY WAS CONVICTED OF FALSE DRAWING OR UTTERING OF
CHECKS IN 1967 PURSUANT TO HIS GUILTY PLEA, AND WAS SENTENCED TO NOT
MORE THAN SEVEN YEARS' CONFINEMENT.  HE WAS PAROLED FROM THE IOWA STATE
PENITENTIARY IN JUNE 1968.  SEVEN MONTHS LATER, AT THE DIRECTION OF HIS
PAROLE OFFICER, HE WAS ARRESTED IN HIS HOME TOWN AS A PAROLE VIOLATOR
AND INCARCERATED IN THE COUNTY JAIL.  ONE WEEK LATER, AFTER REVIEW OF
THE PAROLE OFFICER'S WRITTEN REPORT, THE IOWA BOARD OF PAROLE REVOKED
MORRISSEY'S PAROLE, AND HE WAS RETURNED TO THE PENITENTIARY LOCATED
ABOUT 100 MILES FROM HIS HOME.  PETITIONER ASSERTS HE RECEIVED NO
HEARING PRIOR TO REVOCATION OF HIS PAROLE. 

THE PAROLE OFFICER'S REPORT ON WHICH THE BOARD OF PAROLE ACTED SHOWS
THAT PETITIONER'S PAROLE WAS REVOKED ON THE BASIS OF INFORMATION THAT
HE HAD VIOLATED THE CONDITIONS OF PAROLE BY BUYING A CAR UNDER AN
ASSUMED NAME AND OPERATING IT WITHOUT PERMISSION, GIVING FALSE
STATEMENTS TO POLICE CONCERNING HIS ADDRESS AND INSURANCE COMPANY AFTER
A MINOR ACCIDENT, OBTAINING CREDIT UNDER AN ASSUMED NAME, AND FAILING
TO REPORT HIS PLACE OF RESIDENCE TO HIS PAROLE OFFICER.  THE REPORT
STATES THAT THE OFFICER INTERVIEWED MORRISSEY, AND THAT HE COULD NOT
EXPLAIN WHY HE DID NOT CONTACT HIS PAROLE OFFICER DESPITE HIS EFFORT TO
EXCUSE THIS ON THE GROUND THAT HE HAD BEEN SICK.  FURTHER, THE REPORT
ASSERTS THAT MORRISSEY ADMITTED BUYING THE CAR AND OBTAINING CREDIT
UNDER AN ASSUMED NAME, AND ALSO ADMITTED BEING INVOLVED IN THE
ACCIDENT.  THE PAROLE OFFICER RECOMMENDED THAT HIS PAROLE BE REVOKED
BECAUSE OF "HIS CONTINUAL VIOLATING OF HIS PAROLE RULES." 

THE SITUATION AS TO PETITIONER BOOHER IS MUCH THE SAME.  PURSUANT TO
HIS GUILTY PLEA, BOOHER WAS CONVICTED OF FORGERY IN 1966 AND SENTENCED
TO A MAXIMUM TERM OF 10 YEARS.  HE WAS PAROLED NOVEMBER 14, 1968.  IN
AUGUST 1969, AT HIS PAROLE OFFICER'S DIRECTION, HE WAS ARRESTED IN HIS
HOME TOWN FOR A VIOLATION OF HIS PAROLE AND CONFINED IN THE COUNTY JAIL
SEVERAL MILES AWAY.  ON SEPTEMBER 13, 1969, ON THE BASIS OF A WRITTEN
REPORT BY HIS PAROLE OFFICER, THE IOWA BOARD OF PAROLE REVOKED BOOHER'S
PAROLE AND BOOHER WAS RECOMMITTED TO THE STATE PENITENTIARY, LOCATED
ABOUT 250 MILES FROM HIS HOME, TO COMPLETE SERVICE OF HIS SENTENCE. 
PETITIONER ASSERTS HE RECEIVED NO HEARING PRIOR TO REVOCATION OF HIS
PAROLE. 

THE PAROLE OFFICER'S REPORT WITH RESPECT TO BOOHER RECOMMENDED THAT
HIS PAROLE BE REVOKED BECAUSE HE HAD VIOLATED THE TERRITORIAL
RESTRICTIONS OF HIS PAROLE WITHOUT CONSENT, HAD OBTAINED A DRIVER'S
LICENSE UNDER AN ASSUMED NAME, OPERATED A MOTOR VEHICLE WITHOUT
PERMISSION, AND HAD VIOLATED THE EMPLOYMENT CONDITION OF HIS PAROLE BY
FAILING TO KEEP HIMSELF IN GAINFUL EMPLOYMENT.  THE REPORT STATED THAT
THE OFFICER HAD INTERVIEWED BOOHER AND THAT HE HAD ACKNOWLEDGED TO THE
PAROLE OFFICER THAT HE HAD LEFT THE SPECIFIED TERRITORIAL LIMITS AND
HAD OPERATED THE CAR AND HAD OBTAINED A LICENSE UNDER AN ASSUMED NAME
"KNOWING THAT IT WAS WRONG."  THE REPORT FURTHER NOTED THAT BOOHER HAD
STATED THAT HE HAD NOT FOUND EMPLOYMENT BECAUSE HE COULD NOT FIND WORK
THAT WOULD PAY HIM WHAT HE WANTED-- HE STATED HE WOULD NOT WORK FOR
$2.25 TO $2.75 PER HOUR-- AND THAT HE HAD LEFT THE AREA TO GET WORK IN
ANOTHER CITY. 

AFTER EXHAUSTING STATE REMEDIES, BOTH PETITIONERS FILED HABEAS
CORPUS PETITIONS IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF IOWA ALLEGING THAT THEY HAD BEEN DENIED DUE PROCESS BECAUSE
THEIR PAROLES HAD BEEN REVOKED WITHOUT A HEARING.  THE STATE RESPONDED
BY ARGUING THAT NO HEARING WAS REQUIRED.  THE DISTRICT COURT HELD ON
THE BASIS OF CONTROLLING AUTHORITY THAT THE STATE'S FAILURE TO ACCORD A
HEARING PRIOR TO PAROLE REVOCATION DID NOT VIOLATE DUE PROCESS.  ON
APPEAL, THE TWO CASES WERE CONSOLIDATED. 

THE COURT OF APPEALS, DIVIDING 4 TO 3, HELD THAT DUE PROCESS DOES
NOT REQUIRE A HEARING.  THE MAJORITY RECOGNIZED THAT THE TRADITIONAL
VIEW OF PAROLE AS A PRIVILEGE RATHER THAN A VESTED RIGHT IS NO LONGER
DISPOSITIVE AS TO WHETHER DUE PROCESS IS APPLICABLE; HOWEVER, ON A
BALANCING OF THE COMPETING INTERESTS INVOLVED, IT CONCLUDED THAT NO
HEARING IS REQUIRED.  THE COURT REASONED THAT PAROLE IS ONLY "A
CORRECTIONAL DEVICE AUTHORIZING SERVICE OF SENTENCE OUTSIDE THE
PENITENTIARY," 443 F.2D 942, 947; THE PAROLEE IS STILL "IN CUSTODY." 
ACCORDINGLY, THE COURT OF APPEALS WAS OF THE VIEW THAT PRISON OFFICIALS
MUST HAVE LARGE DISCRETION IN MAKING REVOCATION DETERMINATIONS, AND
THAT COURTS SHOULD RETAIN THEIR TRADITIONAL RELUCTANCE TO INTERFERE
WITH DISCIPLINARY MATTERS PROPERLY UNDER THE CONTROL OF STATE PRISON
AUTHORITIES.  THE MAJORITY EXPRESSED THE VIEW THAT "NON-LEGAL, NON
ADVERSARY CONSIDERATIONS" WERE OFTEN THE DETERMINATIVE FACTORS IN
MAKING A PAROLE REVOCATION DECISION.  IT EXPRESSED CONCERN THAT IF
ADVERSARY HEARINGS WERE REQUIRED FOR PAROLE REVOCATION, "WITH THE FULL
PANOPLY OF RIGHTS ACCORDED IN CRIMINAL PROCEEDINGS," THE FUNCTION OF
THE PAROLE BOARD AS "AN ADMINISTRATIVE BODY ACTING IN THE ROLE OF
PARENS PATRIAE WOULD BE ABORTED," ID., AT 949, AND THE BOARD WOULD BE
MORE RELUCTANT TO GRANT PAROLE IN THE FIRST INSTANCE-- AN APPREHENSION
THAT WOULD NOT BE WITHOUT SOME BASIS IF THE CHOICE WERE BETWEEN A FULL
SCALE ADVERSARY PROCEEDING OR NO HEARING AT ALL.  ADDITIONALLY, THE
MAJORITY REASONED THAT THE PAROLEE HAS NO STATUTORY RIGHT TO REMAIN ON
PAROLE.  IOWA LAW PROVIDES THAT A PAROLEE MAY BE RETURNED TO THE
INSTITUTION AT ANY TIME.  OUR HOLDING IN MEMPA V. RHAY, 389 U.S. 128
(1967), WAS DISTINGUISHED ON THE GROUND THAT IT INVOLVED DEFERRED
SENTENCING UPON PROBATION, AND THUS INVOLVED A STAGE OF THE CRIMINAL
PROCEEDING, WHEREAS PAROLE REVOCATION WAS NOT A STAGE IN THE CRIMINAL
PROCEEDING.  THE COURT OF APPEALS' DECISION WAS CONSISTENT WITH MANY
OTHER DECISIONS ON PAROLE REVOCATIONS. 

IN THEIR BRIEF IN THIS COURT, RESPONDENTS ASSERT FOR THE FIRST TIME
THAT PETITIONERS WERE IN FACT GRANTED HEARINGS AFTER THEY WERE RETURNED
TO THE PENITENTIARY.  MORE GENERALLY, RESPONDENTS SAY THAT WITHIN TWO
MONTHS AFTER THE BOARD REVOKES AN INDIVIDUAL'S PAROLE AND ORDERS HIM
RETURNED TO THE PENITENTIARY, ON THE BASIS OF THE PAROLE OFFICER'S
WRITTEN REPORT IT GRANTS THE INDIVIDUAL A HEARING BEFORE THE BOARD.  AT
THAT TIME, THE BOARD GOES OVER "EACH OF THE ALLEGED PAROLE VIOLATIONS
WITH THE RETURNEE, AND HE IS GIVEN AN OPPORTUNITY TO ORALLY PRESENT HIS
SIDE OF THE STORY TO THE BOARD."  IF THE RETURNEE DENIES THE REPORT, IT
IS THE PRACTICE OF THE BOARD TO CONDUCT A FURTHER INVESTIGATION BEFORE
MAKING A FINAL DETERMINATION EITHER AFFIRMING THE INITIAL REVOCATION,
MODIFYING IT, OR REVERSING IT.  /1/  RESPONDENTS ASSERT THAT MORRISSEY,
WHOSE PAROLE WAS REVOKED ON JANUARY 31, 1969, WAS GRANTED A HEARING
BEFORE THE BOARD ON FEBRUARY 12, 1969.  BOOHER'S PAROLE WAS REVOKED ON
SEPTEMBER 13, 1969, AND HE WAS GRANTED A HEARING ON OCTOBER 14, 1969. 
AT THESE HEARINGS, RESPONDENTS TELL US-- IN THE BRIEFS-- BOTH MORRISSEY
AND BOOHER ADMITTED THE VIOLATIONS ALLEGED IN THE PAROLE VIOLATION
REPORTS. 

NOTHING IN THE RECORD SUPPLIED TO THIS COURT INDICATES THAT
RESPONDENT CLAIMED, EITHER IN THE DISTRICT COURT OR THE COURT OF
APPEALS, THAT PETITIONERS HAD RECEIVED HEARINGS PROMPTLY AFTER THEIR
PAROLES WERE REVOKED, OR THAT IN SUCH HEARING THEY ADMITTED THE
VIOLATIONS; THAT INFORMATION COMES TO US ONLY IN THE RESPONDENTS' BRIEF
HERE.  FURTHER, EVEN THE ASSERTIONS THAT RESPONDENTS MAKE HERE ARE NOT
BASED ON ANY PUBLIC RECORD BUT ON INTERVIEWS WITH TWO OF THE MEMBERS OF
THE PAROLE BOARD.  IN THE INTERVIEW RELIED ON TO SHOW THAT PETITIONERS
ADMITTED THEIR VIOLATIONS, THE BOARD MEMBER DID NOT ASSERT HE COULD
REMEMBER THAT BOTH MORRISSEY AND BOOHER ADMITTED THE PAROLE VIOLATIONS
WITH WHICH THEY WERE CHARGES.  HE STATED ONLY THAT, ACCORDING TO HIS
MEMORY, IN THE PREVIOUS SEVERAL YEARS ALL BUT THREE RETURNEES HAD
ADMITTED COMMISSION OF THE PAROLE INFRACTIONS ALLEGED AND THAT NEITHER
OF THE PETITIONERS WAS AMONG THE THREE WHO DENIED THEM. 

WE MUST THEREFORE TREAT THIS CASE IN THE POSTURE AND ON THE RECORD
RESPONDENTS ELECTED TO RELY ON IN THE DISTRICT COURT AND THE COURT OF
APPEALS.  IF THE FACTS ARE OTHERWISE, RESPONDENTS MAY MAKE A SHOWING IN
THE DISTRICT COURT THAT PETITIONERS IN FACT HAVE ADMITTED THE
VIOLATIONS CHARGED BEFORE A NEUTRAL OFFICER. 

        I 

BEFORE REACHING THE ISSUE OF WHETHER DUE PROCESS APPLIES TO THE
PAROLE SYSTEM, IT IS IMPORTANT TO RECALL THE FUNCTION OF PAROLE IN THE
CORRECTIONAL PROCESS. 

DURING THE PAST 60 YEARS, THE PRACTICE OF RELEASING PRISONERS ON
PAROLE BEFORE THE END OF THEIR SENTENCES HAS BECOME AN INTEGRAL PART OF
THE PENOLOGICAL SYSTEM.  NOTE, PAROLE REVOCATION IN THE FEDERAL SYSTEM,
56 GEO.L.J. 705 (1968).  RATHER THAN BEING AN AD HOC EXERCISE OF
ELEMENCY, PAROLE IS AN ESTABLISHED VARIATION ON IMPRISONMENT OF
CONVICTED CRIMINALS.  ITS PURPOSE IS TO HELP INDIVIDUALS REINTEGRATE
INTO SOCIETY AS CONSTRUCTIVE INDIVIDUALS AS SOON AS THEY ARE ABLE,
WITHOUT BEING CONFINED FOR THE FULL TERM OF THE SENTENCE IMPOSED.  IT
ALSO SERVES TO ALLEVIATE THE COSTS TO SOCIETY OF KEEPING AN INDIVIDUAL
IN PRISON.  /2/  THE ESSENCE OF PAROLE IS RELEASE FROM PRISON, BEFORE
THE COMPLETION OF SENTENCE, ON THE CONDITION THAT THE PRISONER ABIDE BY
CERTAIN RULES DURING THE BALANCE OF THE SENTENCE.  UNDER SOME SYSTEMS,
PAROLE IS GRANTED AUTOMATICALLY AFTER THE SERVICE OF A CERTAIN PORTION
OF A PRISON TERM.  UNDER OTHERS, PAROLE IS GRANTED BY THE DISCRETIONARY
ACTION OF A BOARD, WHICH EVALUATES AN ARRAY OF INFORMATION ABOUT A
PRISONER AND MAKES A PREDICTION WHETHER HE IS READY TO REINTEGRATE INTO
SOCIETY. 

TO ACCOMPLISH THE PURPOSE OF PAROLE, THOSE WHO ARE ALLOWED TO LEAVE
PRISON EARLY ARE SUBJECTED TO SPECIFIED CONDITIONS FOR THE DURATION OF
THEIR TERMS.  THESE CONDITIONS RESTRICT THEIR ACTIVITIES SUBSTANTIALLY
BEYOND THE ORDINARY RESTRICTIONS IMPOSED BY LAW ON AN INDIVIDUAL
CITIZEN.  TYPICALLY, PAROLEES ARE FORBIDDEN TO USE LIQUOR OR TO HAVE
ASSOCIATIONS OR CORRESPONDENCE WITH CERTAIN CATEGORIES OF UNDESIRABLE
PERSONS.  TYPICALLY, ALSO THEY MUST SEEK PERMISSION FROM THEIR PAROLE
OFFICERS BEFORE ENGAGING IN SPECIFIED ACTIVITIES, SUCH AS CHANGING
EMPLOYMENT OR LIVING QUARTERS, MARRYING, ACQUIRING OR OPERATING A MOTOR
VEHICLE, TRAVELING OUTSIDE THE COMMUNITY, AND INCURRING SUBSTANTIAL
INDEBTEDNESS.  ADDITIONALLY, PAROLEES MUST REGULARLY REPORT TO THE
PAROLE OFFICER TO WHOM THEY ARE ASSIGNED AND SOMETIMES THEY MUST MAKE
PERIODIC WRITTEN REPORTS OF THEIR ACTIVITIES.  ARLUKE, A SUMMARY OF
PAROLE RULES-- THIRTEEN YEARS LATER, 15 CRIME & DELIN.  267, 272-273
(1969). 

THE PAROLE OFFICERS ARE PART OF THE ADMINISTRATIVE SYSTEM DESIGNED
TO ASSIST PAROLEES AND TO OFFER THEM GUIDANCE.  THE CONDITIONS OF
PAROLE SERVE A DUAL PURPOSE; THEY PROHIBIT, EITHER ABSOLUTELY OR
CONDITIONALLY, BEHAVIOR THAT IS DEEMED DANGEROUS TO THE RESTORATION OF
THE INDIVIDUAL INTO NORMAL SOCIETY.  AND THROUGH THE REQUIREMENT OF
REPORTING TO THE PAROLE OFFICER AND SEEKING GUIDANCE AND PERMISSION
BEFORE DOING MANY THINGS, THE OFFICER IS PROVIDED WITH INFORMATION
ABOUT THE PAROLEE AND AN OPPORTUNITY TO ADVISE HIM.  THE COMBINATION
PUTS THE PAROLE OFFICER INTO THE POSITION IN WHICH HE CAN TRY TO GUIDE
THE PAROLEE INTO CONSTRUCTIVE DEVELOPMENT.  /3/ 

THE ENFORCEMENT LEVERAGE THAT SUPPORTS THE PAROLE CONDITIONS DERIVES
FROM THE AUTHORITY TO RETURN THE PAROLEE TO PRISON TO SERVE OUT THE
BALANCE OF HIS SENTENCE IF HE FAILS TO ABIDE BY THE RULES.  IN
PRACTICE, NOT EVERY VIOLATION OF PAROLE CONDITIONS AUTOMATICALLY LEADS
TO REVOCATION.  TYPICALLY, A PAROLEE WILL BE COUNSELED TO ABIDE BY THE
CONDITIONS OF PAROLE, AND THE PAROLE OFFICER ORDINARILY DOES NOT TAKE
STEPS TO HAVE PAROLE REVOKED UNLESS HE THINKS THAT THE VIOLATIONS ARE
SERIOUS AND CONTINUING SO AS TO INDICATE THAT THE PAROLEE IS NOT
ADJUSTING PROPERLY AND CANNOT BE COUNTED ON TO AVOID ANTISOCIAL
ACTIVITY.  /4/  THE BROAD DISCRETION ACCORDED THE PAROLE OFFICER IS
ALSO INHERENT IN SOME OF THE QUITE VAGUE CONDITIONS, SUCH AS THE
TYPICAL REQUIREMENT THAT THE PAROLEE AVOID "UNDESIRABLE" ASSOCIATIONS
OR CORRESPONDENCE.  CF. ARCINIEGA V. FREEMAN, 404 U.S. 4 (1971).  YET
REVOCATION OF PAROLE IS NOT AN UNUSUAL PHENOMENON, AFFECTING ONLY A FEW
PAROLEES.  IT HAS BEEN ESTIMATED THAT 35%-45% OF ALL PAROLEES ARE
SUBJECTED TO REVOCATION AND RETURN TO PRISON.  /5/  SOMETIMES
REVOCATION OCCURS WHEN THE PAROLEE IS ACCUSED OF ANOTHER CRIME; IT IS
OFTEN PREFERRED TO A NEW PROSECUTION BECAUSE OF THE PROCEDURAL EASE OF
RECOMMITTING THE INDIVIDUAL ON THE BASIS OF A LESSER SHOWING BY THE
STATE.  /6/ 

IMPLICIT IN THE SYSTEM'S CONCERN WITH PAROLE VIOLATIONS IS THE
NOTION THAT THE PAROLEE IS ENTITLED TO RETAIN HIS LIBERTY AS LONG AS HE
SUBSTANTIALLY ABIDES BY THE CONDITIONS OF HIS PAROLE.  THE FIRST STEP
IN A REVOCATION DECISION THUS INVOLVES A WHOLLY RETROSPECTIVE FACTUAL
QUESTION:  WHETHER THE PAROLEE HAS IN FACT ACTED IN VIOLATION OF ONE OR
MORE CONDITIONS OF HIS PAROLE.  ONLY IF IT IS DETERMINED THAT THE
PAROLEE DID VIOLATE THE CONDITIONS DOES THE SECOND QUESTION ARISE:
SHOULD THE PAROLEE BE RECOMMITTED TO PRISON OR SHOULD OTHER STEPS BE
TAKEN TO PROTECT SOCIETY AND IMPROVE CHANCES OF REHABILITATION?  THE
FIRST STEP IS RELATIVELY SIMPLE; THE SECOND IS MORE COMPLEX.  THE
SECOND QUESTION INVOLVES THE APPLICATION OF EXPERTISE BY THE PAROLE
AUTHORITY IN MAKING A PREDICTION AS TO THE ABILITY OF THE INDIVIDUAL TO
LIVE IN SOCIETY WITHOUT COMMITTING ANTISOCIAL ACTS.  THIS PART OF THE
DECISION, TOO, DEPENDS ON FACTS, AND THEREFORE IT IS IMPORTANT FOR THE
BOARD TO KNOW NOT ONLY THAT SOME VIOLATION WAS COMMITTED BUT ALSO TO
KNOW ACCURATELY HOW MANY AND HOW SERIOUS THE VIOLATIONS WERE.  YET THIS
SECOND STEP, DECIDING WHAT TO DO ABOUT THE VIOLATION ONCE IT IS
IDENTIFIED, IS NOT PURELY FACTUAL BUT ALSO PREDICTIVE AND
DISCRETIONARY. 

IF A PAROLEE IS RETURNED TO PRISON, HE USUALLY RECEIVES NO CREDIT
FOR THE TIME "SERVED" ON PAROLE.  /7/  THUS, THE RETURNEE MAY FACE A
POTENTIAL OF SUBSTANTIAL IMPRISONMENT. 

        II 

WE BEGIN WITH THE PROPOSITION THAT THE REVOCATION OF PAROLE IS NOT
PART OF A CRIMINAL PROSECUTION AND THUS THE FULL PANOPLY OF RIGHTS DUE
A DEFENDANT IN SUCH A PROCEEDING DOES NOT APPLY TO PAROLE REVOCATIONS. 
CF. MEMPA V. RHAY, 389 U.S. 128 (1967).  PAROLE ARISES AFTER THE END OF
THE CRIMINAL PROSECUTION, INCLUDING IMPOSITION OF SENTENCE. 
SUPERVISION IS NOT DIRECTLY BY THE COURT BUT BY AN ADMINISTRATIVE
AGENCY, WHICH IS SOMETIMES AN ARM OF THE COURT AND SOMETIMES OF THE
EXECUTIVE.  REVOCATION DEPRIVES AN INDIVIDUAL, NOT OF THE ABSOLUTE
LIBERTY TO WHICH EVERY CITIZEN IS ENTITLED, BUT ONLY OF THE CONDITIONAL
LIBERTY PROPERLY DEPENDENT ON OBSERVANCE OF SPECIAL PAROLE
RESTRICTIONS. 

WE TURN, THEREFORE, TO THE QUESTION WHETHER THE REQUIREMENTS OF DUE
PROCESS IN GENERAL APPLY TO PAROLE REVOCATIONS.  AS MR. JUSTICE
BLACKMUN HAS WRITTEN RECENTLY, "THIS COURT NOW HAS REJECTED THE CONCEPT
THAT CONSTITUTIONAL RIGHTS TURN UPON WHETHER A GOVERNMENTAL BENEFIT IS
CHARACTERIZED AS A 'RIGHT' OR AS A 'PRIVILEGE.'"  GRAHAM V. RICHARDSON,
403 U.S. 365, 374 (1971).  WHETHER ANY PROCEDURAL PROTECTIONS ARE DUE
DEPENDS ON THE EXTENT TO WHICH AN INDIVIDUAL WILL BE "CONDEMNED TO
SUFFER GRIEVOUS LOSS."  JOINT ANTI-FASCIST REFUGEE COMMITTEE V.
MCGRATH, 341 U.S. 123, 168 (1951) (FRANKFURTER, J., CONCURRING), QUOTED
IN GOLDBERG V. KELLY, 397 U.S. 254, 263 (1970).  THE QUESTION IS NOT
MERELY THE "WEIGHT" OF THE INDIVIDUAL'S INTEREST, BUT WHETHER THE
NATURE OF THE INTEREST IS ONE WITHIN THE CONTEMPLATION OF THE "LIBERTY
OR PROPERTY" LANGUAGE OF THE FOURTEENTH AMENDMENT.  FUENTES V. SHEVIN,
407 U.S. 67 (1972).  ONCE IT IS DETERMINED THAT DUE PROCESS APPLIES,
THE QUESTION REMAINS WHAT PROCESS IS DUE.  IT HAS BEEN SAID SO OFTEN BY
THIS COURT AND OTHERS AS NOT TO REQUIRE CITATION OF AUTHORITY THAT DUE
PROCESS IS FLEXIBLE AND CALLS FOR SUCH PROCEDURAL PROTECTIONS AS THE
PARTICULAR SITUATION DEMANDS.  "(CONSIDERATION OF WHAT PROCEDURES DUE
PROCESS MAY REQUIRE UNDER ANY GIVEN SET OF CIRCUMSTANCES MUST BEGIN
WITH A DETERMINATION OF THE PRECISE NATURE OF THE GOVERNMENT FUNCTION
INVOLVED AS WELL AS OF THE PRIVATE INTEREST THAT HAS BEEN AFFECTED BY
GOVERNMENTAL ACTION."  CAFETERIA & RESTAURANT WORKERS UNION V. MCELROY,
367 U.S. 886, 895 (1961).  TO SAY THAT THE CONCEPT OF DUE PROCESS IS
FLEXIBLE DOES NOT MEAN THAT JUDGES ARE AT LARGE TO APPLY IT TO ANY AND
ALL RELATIONSHIPS.  ITS FLEXIBILITY IS IN ITS SCOPE ONCE IT HAS BEEN
DETERMINED THAT SOME PROCESS IS DUE; IT IS A RECOGNITION THAT NOT ALL
SITUATIONS CALLING FOR PROCEDURAL SAFEGUARDS CALL FOR THE SAME KIND OF
PROCEDURE. 

WE TURN TO AN EXAMINATION OF THE NATURE OF THE INTEREST OF THE PAROLEE
IN HIS CONTINUED LIBERTY.  THE LIBERTY OF A PAROLEE ENABLES HIM TO DO A
WIDE RANGE OF THINGS OPEN TO PERSONS WHO HAVE NEVER BEEN CONVICTED OF
ANY CRIME.  THE PAROLEE HAS BEEN RELEASED FROM PRISON BASED ON AN
EVALUATION THAT HE SHOWS REASONABLE PROMISE OF BEING ABLE TO RETURN TO
SOCIETY AND FUNCTION AS A RESPONSIBLE, SELF-RELIANT PERSON.  SUBJECT TO
THE CONDITIONS OF HIS PAROLE, HE CAN BE GAINFULLY EMPLOYED AND IS FREE
TO BE WITH FAMILY AND FRIENDS AND TO FORM THE OTHER ENDURING
ATTACHMENTS OF NORMAL LIFE.  THOUGH THE STATE PROPERLY SUBJECTS HIM TO
MANY RESTRICTIONS NOT APPLICABLE TO OTHER CITIZENS, HIS CONDITION IS
VERY DIFFERENT FROM THAT OF CONFINEMENT IN A PRISON.  /8/  HE MAY HAVE
BEEN ON PAROLE FOR A NUMBER OF YEARS AND MAY BE LIVING A RELATIVELY
NORMAL LIFE AT THE TIME HE IS FACED WITH REVOCATION.  /9/  THE PAROLEE
HAS RELIED ON AT LEAST AN IMPLICIT PROMISE THAT PAROLE WILL BE REVOKED
ONLY IF HE FAILS TO LIVE UP TO THE PAROLE CONDITIONS.  IN MANY CASES,
THE PAROLEE FACES LENGTHY INCARCERATION IF HIS PAROLE IS REVOKED. 

WE SEE, THEREFORE, THAT THE LIBERTY OF A PAROLEE, ALTHOUGH
INDETERMINATE, INCLUDES MANY OF THE CORE VALUES OF UNQUALIFIED LIBERTY
AND ITS TERMINATION INFLICTS A "GRIEVOUS LOSS" ON THE PAROLEE AND OFTEN
ON OTHERS.  IT IS HARDLY USEFUL ANY LONGER TO TRY TO DEAL WITH THIS
PROBLEM IN TERMS OF WHETHER THE PAROLEE'S LIBERTY IS A "RIGHT" OR A
"PRIVILEGE."  BY WHATEVER NAME, THE LIBERTY IS VALUABLE AND MUST BE
SEEN AS WITHIN THE PROTECTION OF THE FOURTEENTH AMENDMENT.  ITS
TERMINATION CALLS FOR SOME ORDERLY PROCESS, HOWEVER INFORMAL. 

TURNING TO THE QUESTION WHAT PROCESS IS DUE, WE FIND THAT THE
STATE'S INTERESTS ARE SEVERAL.  THE STATE HAS FOUND THE PAROLEE GUILTY
OF A CRIME AGAINST THE PEOPLE.  THAT FINDING JUSTIFIES IMPOSING
EXTENSIVE RESTRICTIONS ON THE INDIVIDUAL'S LIBERTY.  RELEASE OF THE
PAROLEE BEFORE THE END OF HIS PRISON SENTENCE IS MADE WITH THE
RECOGNITION THAT WITH MANY PRISONERS THERE IS A RISK THAT THEY WILL NOT
BE ABLE TO LIVE IN SOCIETY WITHOUT COMMITTING ADDITIONAL ANTISOCIAL
ACTS.  GIVEN THE PREVIOUS CONVICTION AND THE PROPER IMPOSITION OF
CONDITIONS, THE STATE HAS AN OVERWHELMING INTEREST IN BEING ABLE TO
RETURN THE INDIVIDUAL TO IMPRISONMENT WITHOUT THE BURDEN OF A NEW
ADVERSARY CRIMINAL TRIAL IF IN FACT HE HAS FAILED TO ABIDE BY THE
CONDITIONS OF HIS PAROLE. 

YET, THE STATE HAS NO INTEREST IN REVOKING PAROLE WITHOUT SOME
INFORMAL PROCEDURAL GUARANTEES.  ALTHOUGH THE PAROLEE IS OFTEN FORMALLY
DESCRIBED AS BEING "IN CUSTODY," THE ARGUMENT CANNOT EVEN BE MADE HERE
THAT SUMMARY TREATMENT IS NECESSARY AS IT MAY BE WITH RESPECT TO
CONTROLLING A LARGE GROUP OF POTENTIALLY DISRUPTIVE PRISONERS IN ACTUAL
CUSTODY.  NOR ARE WE PERSUADED BY THE ARGUMENT THAT REVOCATION IS SO
TOTALLY A DISCRETIONARY MATTER THAT SOME FORM OF HEARING WOULD BE
ADMINISTRATIVELY INTOLERABLE.  A SIMPLE FACTUAL HEARING WILL NOT
INTERFERE WITH THE EXERCISE OF DISCRETION.  SERIOUS STUDIES HAVE
SUGGESTED THAT FAIR TREATMENT ON PAROLE REVOCATION WILL NOT RESULT IN
FEWER GRANTS OF PAROLE.  /10/ 

THIS DISCRETIONARY ASPECT OF THE REVOCATION DECISION NEED NOT BE
REACHED UNLESS THERE IS FIRST AN APPROPRIATE DETERMINATION THAT THE
INDIVIDUAL HAS IN FACT BREACHED THE CONDITIONS OF PAROLE.  THE PAROLEE
IS NOT THE ONLY ONE WHO HAS A STAKE IN HIS CONDITIONAL LIBERTY. 
SOCIETY HAS A STAKE IN WHATEVER MAY BE THE CHANCE OF RESTORING HIM TO
NORMAL AND USEFUL LIFE WITHIN THE LAW.  SOCIETY THUS HAS AN INTEREST IN
NOT HAVING PAROLE REVOKED BECAUSE OF ERRONEOUS INFORMATION OR BECAUSE
OF AN ERRONEOUS EVALUATION OF THE NEED TO REVOKE PAROLE, GIVEN THE
BREACH OF PAROLE CONDITIONS.  SEE PEOPLE EX REL. MENECHINO V. WARDEN,
27 N.Y.2D 376, 379, AND N. 2, 267 N.E.2D 238, 239, AND N. 2 (1971)
(PAROLE BOARD HAD LESS THAN FULL PICTURE OF FACTS).  AND SOCIETY HAS A
FURTHER INTEREST IN TREATING THE PAROLEE WITH BASIC FAIRNESS:  FAIR
TREATMENT IN PAROLE REVOCATIONS WILL ENHANCE THE CHANCE OF
REHABILITATION BY AVOIDING REACTIONS TO ARBITRARINESS.  /11/ 

GIVEN THESE FACTORS, MOST STATES HAVE RECOGNIZED THAT THERE IS NO
INTEREST ON THE PART OF THE STATE IN REVOKING PAROLE WITHOUT ANY
PROCEDURAL GUARANTEES AT ALL.  /12/  WHAT IS NEEDED IS AN INFORMAL
HEARING STRUCTURED TO ASSURE THAT THE FINDING OF A PAROLE VIOLATION
WILL BE BASED ON VERIFIED FACTS AND THAT THE EXERCISE OF DISCRETION
WILL BE INFORMED BY AN ACCURATE KNOWLEDGE OF THE PAROLEE'S BEHAVIOR. 

        III 

WE NOW TURN TO THE NATURE OF THE PROCESS THAT IS DUE, BEARING IN
MIND THAT THE INTEREST OF BOTH STATE AND PAROLEE WILL BE FURTHERED BY
AN EFFECTIVE BUT INFORMAL HEARING.  IN ANALYZING WHAT IS DUE, WE SEE
TWO IMPORTANT STAGES IN THE TYPICAL PROCESS OF PAROLE REVOCATION. 

(A) ARREST OF PAROLEE AND PRELIMINARY HEARING.  THE FIRST STAGE
OCCURS WHEN THE PAROLEE IS ARRESTED AND DETAINED, USUALLY AT THE
DIRECTION OF HIS PAROLE OFFICER.  THE SECOND OCCURS WHEN PAROLE IS
FORMALLY REVOKED.  THERE IS TYPICALLY A SUBSTANTIAL TIME LAG BETWEEN
THE ARREST AND THE EVENTUAL DETERMINATION BY THE PAROLE BOARD WHETHER
PAROLE SHOULD BE REVOKED.  ADDITIONALLY, IT MAY BE THAT THE PAROLEE IS
ARRESTED AT A PLACE DISTANT FROM THE STATE INSTITUTION, TO WHICH HE MAY
BE RETURNED BEFORE THE FINAL DECISION IS MADE CONCERNING REVOCATION. 
GIVEN THESE FACTORS, DUE PROCESS WOULD SEEM TO REQUIRE THAT SOME
MINIMAL INQUIRY BE CONDUCTED AT OR REASONABLY NEAR THE PLACE OF THE
ALLEGED PAROLE VIOLATION OR ARREST AND AS PROMPTLY AS CONVENIENT AFTER
ARREST WHILE INFORMATION IS FRESH AND SOURCES ARE AVAILABLE.  CF. HYSER
V. REED, 115 U.S.APP.D.C. 254, 318 F.2D 225 (1963).  SUCH AN INQUIRY
SHOULD BE SEEN AS IN THE NATURE OF A "PRELIMINARY HEARING" TO DETERMINE
WHETHER THERE IS PROBABLE CAUSE OR REASONABLE GROUND TO BELIEVE THAT
THE ARRESTED PAROLEE HAS COMMITTED ACTS THAT WOULD CONSTITUTE A
VIOLATION OF PAROLE CONDITIONS.  CF. GOLDBERG V. KELLY, 397 U.S.,AT 267
271. 

IN OUR VIEW, DUE PROCESS REQUIRES THAT AFTER THE ARREST, THE
DETERMINATION THAT REASONABLE GROUND EXISTS FOR REVOCATION OF PAROLE
SHOULD BE MADE BY SOMEONE NOT DIRECTLY INVOLVED IN THE CASE.  IT WOULD
BE UNFAIR TO ASSUME THAT THE SUPERVISING PAROLE OFFICER DOES NOT
CONDUCT AN INTERVIEW WITH THE PAROLEE TO CONFRONT HIM WITH THE REASONS
FOR REVOCATION BEFORE HE RECOMMENDS AN ARREST.  IT WOULD ALSO BE UNFAIR
TO ASSUME THAT THE PAROLE OFFICER BEARS HOSTILITY AGAINST THE PAROLEE
THAT DESTROYS HIS NEUTRALITY; REALISTICALLY THE FAILURE OF THE PAROLEE
IS IN A SENSE A FAILURE FOR HIS SUPERVISING OFFICER.  /13/  HOWEVER, WE
NEED MAKE NO ASSUMPTIONS ONE WAY OR THE OTHER TO CONCLUDE THAT THERE
SHOULD BE AN UNINVOLVED PERSON TO MAKE THIS PRELIMINARY EVALUATION OF
THE BASIS FOR BELIEVING THE CONDITIONS OF PAROLE HAVE BEEN VIOLATED. 
THE OFFICER DIRECTLY INVOLVED IN MAKING RECOMMENDATIONS CANNOT ALWAYS
HAVE COMPLETE OBJECTIVITY IN EVALUATING THEM.  /14/  GOLDBERG V. KELLY
FOUND IT UNNECESSARY TO IMPUGN THE MOTIVES OF THE CASEWORKER TO FIND A
NEED FOR AN INDEPENDENT DECISIONMAKER TO EXAMINE THE INITIAL DECISION. 

THIS INDEPENDENT OFFICER NEED NOT BE A JUDICIAL OFFICER.  THE
GRANTING AND REVOCATION OF PAROLE ARE MATTERS TRADITIONALLY HANDLED BY
ADMINISTRATIVE OFFICERS.  IN GOLDBERG, THE COURT POINTEDLY DID NOT
REQUIRE THAT THE HEARING ON TERMINATION OF BENEFITS BE CONDUCTED BY A
JUDICIAL OFFICER OR EVEN BEFORE THE TRADITIONAL "NEUTRAL AND DETACHED"
OFFICER; IT REQUIRED ONLY THAT THE HEARING BE CONDUCTED BY SOME PERSON
OTHER THAN ONE INITIALLY DEALING WITH THE CASE.  IT WILL BE SUFFICIENT,
THEREFORE, IN THE PAROLE REVOCATION CONTEXT, IF AN EVALUATION OF
WHETHER REASONABLE CAUSE EXISTS TO BELIEVE THAT CONDITIONS OF PAROLE
HAVE BEEN VIOLATED IS MADE BY SOMEONE SUCH AS A PAROLE OFFICER OTHER
THAN THE ONE WHO HAS MADE THE REPORT OF PAROLE VIOLATIONS OR HAS
RECOMMENDED REVOCATION.  A STATE COULD CERTAINLY CHOOSE SOME OTHER
INDEPENDENT DECISIONMAKER TO PERFORM THIS PRELIMINARY FUNCTION. 

WITH RESPECT TO THE PRELIMINARY HEARING BEFORE THIS OFFICER, THE
PAROLEE SHOULD BE GIVEN NOTICE THAT THE HEARING WILL TAKE PLACE AND
THAT ITS PURPOSE IS TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO
BELIEVE HE HAS COMMITTED A PAROLE VIOLATION.  THE NOTICE SHOULD STATE
WHAT PAROLE VIOLATIONS HAVE BEEN ALLEGED.  AT THE HEARING THE PAROLEE
MAY APPEAR AND SPEAK IN HIS OWN BEHALF; HE MAY BRING LETTERS,
DOCUMENTS, OR INDIVIDUALS WHO CAN GIVE RELEVANT INFORMATION TO THE
HEARING OFFICER.  ON REQUEST OF THE PAROLEE, A PERSON WHO HAS GIVEN
ADVERSE INFORMATION ON WHICH PAROLE REVOCATION IS TO BE BASED IS TO BE
MADE AVAILABLE FOR QUESTIONING IN HIS PRESENCE.  HOWEVER, IF THE
HEARING OFFICER DETERMINES THAT AN INFORMANT WOULD BE SUBJECTED TO RISK
OF HARM IF HIS IDENTITY WERE DISCLOSED, HE NEED NOT BE SUBJECTED TO
CONFRONTATION AND CROSS-EXAMINATION. 

THE HEARING OFFICER SHALL HAVE THE DUTY OF MAKING A SUMMARY, OR
DIGEST, OF WHAT OCCURS AT THE HEARING IN TERMS OF THE RESPONSES OF THE
PAROLEE AND THE SUBSTANCE OF THE DOCUMENTS OR EVIDENCE GIVEN IN SUPPORT
OF PAROLE REVOCATION AND OF THE PAROLEE'S POSITION.  BASED ON THE
INFORMATION BEFORE HIM, THE OFFICER SHOULD DETERMINE WHETHER THERE IS
PROBABLE CAUSE TO HOLD THE PAROLEE FOR THE FINAL DECISION OF THE PAROLE
BOARD ON REVOCATION.  SUCH A DETERMINATION WOULD BE SUFFICIENT TO
WARRANT THE PAROLEE'S CONTINUED DETENTION AND RETURN TO THE STATE
CORRECTIONAL INSTITUTION PENDING THE FINAL DECISION.  AS IN GOLDBERG,
"THE DECISION MAKER SHOULD STATE THE REASONS FOR HIS DETERMINATION AND
INDICATE THE EVIDENCE HE RELIED ON . . . " BUT IT SHOULD BE REMEMBERED
THAT THIS IS NOT A FINAL DETERMINATION CALLING FOR "FORMAL FINDINGS OF
FACT AND CONCLUSIONS OF LAW."  397 U.S.,AT 271.  NO INTEREST WOULD BE
SERVED BY FORMALISM IN THIS PROCESS; INFORMALITY WILL NOT LESSEN THE
UTILITY OF THIS INQUIRY IN REDUCING THE RISK OF ERROR. 

(B) THE REVOCATION HEARING.  THERE MUST ALSO BE AN OPPORTUNITY FOR A
HEARING, IF IT IS DESIRED BY THE PAROLEE, PRIOR TO THE FINAL DECISION
ON REVOCATION BY THE PAROLE AUTHORITY.  THIS HEARING MUST BE THE BASIS
FOR MORE THAN DETERMINING PROBABLE CAUSE; IT MUST LEAD TO A FINAL
EVALUATION OF ANY CONTESTED RELEVANT FACTS AND CONSIDERATION OF WHETHER
THE FACTS AS DETERMINED WARRANT REVOCATION.  THE PAROLEE MUST HAVE AN
OPPORTUNITY TO BE HEARD AND TO SHOW, IF HE CAN, THAT HE DID NOT VIOLATE
THE CONDITIONS, OR, IF HE DID, THAT CIRCUMSTANCES IN MITIGATION SUGGEST
THAT THE VIOLATION DOES NOT WARRANT REVOCATION.  THE REVOCATION HEARING
MUST BE TENDERED WITHIN A REASONABLE TIME AFTER THE PAROLEE IS TAKEN
INTO CUSTODY.  A LAPSE OF TWO MONTHS, AS RESPONDENTS SUGGEST OCCURS IN
SOME CASES, WOULD NOT APPEAR TO BE UNREASONABLE.     WE CANNOT WRITE A
CODE OF PROCEDURE; THAT IS THE RESPONSIBILITY OF EACH STATE.  MOST
STATES HAVE DONE SO BY LEGISLATION, OTHERS BY JUDICIAL DECISION USUALLY
ON DUE PROCESS GROUNDS.  /15/  OUR TASK IS LIMITED TO DECIDING THE
MINIMUM REQUIREMENTS OF DUE PROCESS.  THEY INCLUDE (A) WRITTEN NOTICE
OF THE CLAIMED VIOLATIONS OF PAROLE; (B) DISCLOSURE TO THE PAROLEE OF
EVIDENCE AGAINST HIM; (C) OPPORTUNITY TO BE HEARD IN PERSON AND TO
PRESENT WITNESSES AND DOCUMENTARY EVIDENCE; (D) THE RIGHT TO CONFRONT
AND CROSS-EXAMINE ADVERSE WITNESSES (UNLESS THE HEARING OFFICER
SPECIFICALLY FINDS GOOD CAUSE FOR NOT ALLOWING CONFRONTATION); (E) A
"NEUTRAL AND DETACHED" HEARING BODY SUCH AS A TRADITIONAL PAROLE BOARD,
MEMBERS OF WHICH NEED NOT BE JUDICIAL OFFICERS OR LAWYERS; AND (F) A
WRITTEN STATEMENT BY THE FACTFINDERS AS TO THE EVIDENCE RELIED ON AND
REASONS FOR REVOKING PAROLE.  WE EMPHASIZE THERE IS NO THOUGHT TO
EQUATE THIS SECOND STAGE OF PAROLE REVOCATION TO A CRIMINAL PROSECUTION
IN ANY SENSE.  IT IS A NORROW INQUIRY; THE PROCESS SHOULD BE FLEXIBLE
ENOUGH TO CONSIDER EVIDENCE INCLUDING LETTERS, AFFIDAVITS, AND OTHER
MATERIAL THAT WOULD NOT BE ADMISSIBLE IN AN ADVERSARY CRIMINAL TRIAL. 

WE DO NOT REACH OR DECIDE THE QUESTION WHETHER THE PAROLEE IS
ENTITLED TO THE ASSISTANCE OF RETAINED COUNSEL OR TO APPOINTED COUNSEL
IF HE IS INDIGENT.  /16/ 

WE HAVE NO THOUGHT TO CREATE AN INFLEXIBLE STRUCTURE FOR PAROLE
REVOCATION PROCEDURES.  THE FEW BASIC REQUIREMENTS SET OUT ABOVE, WHICH
ARE APPLICABLE TO FUTURE REVOCATIONS OF PAROLE, SHOULD NOT IMPOSE A
GREAT BURDEN ON ANY STATE'S PAROLE SYSTEM.  CONTROL OVER THE REQUIRED
PROCEEDINGS BY THE HEARING OFFICERS CAN ASSURE THAT DELAYING TACTICS
AND OTHER ABUSES SOMETIMES PRESENT IN THE TRADITIONAL ADVERSARY TRIAL
SITUATION DO NOT OCCUR.  OBVIOUSLY A PAROLEE CANNOT RELITIGATE ISSUES
DETERMINED AGAINST HIM IN OTHER FORUMS, AS IN THE SITUATION PRESENTED
WHEN THE REVOCATION IS BASED ON CONVICTION OF ANOTHER CRIME. 

IN THE PECULIAR POSTURE OF THIS CASE, GIVEN THE ABSENCE OF AN
ADEQUATE RECORD, WE CONCLUDE THE ENDS OF JUSTICE WILL BE BEST SERVED BY
REMANDING THE CASE TO THE COURT OF APPEALS FOR ITS RETURN OF THE TWO
CONSOLIDATED CASES TO THE DISTRICT COURT WITH DIRECTIONS TO MAKE
FINDINGS ON THE PROCEDURES ACTUALLY FOLLOWED BY THE PAROLE BOARD IN
THESE TWO REVOCATIONS.  IF IT IS DETERMINED THAT PETITIONERS ADMITTED
PAROLE VIOLATIONS TO THE PAROLE BOARD, AS RESPONDENTS CONTEND, AND IF
THOSE VIOLATIONS ARE FOUND TO BE REASONABLE GROUNDS FOR REVOKING PAROLE
UNDER STATE STANDARDS, THAT WOULD END THE MATTER.  IF THE PROCEDURES
FOLLOWED BY THE PAROLE BOARD ARE FOUND TO MEET THE STANDARDS LAID DOWN
IN THIS OPINION THAT, TOO, WOULD DISPOSE OF THE DUE PROCESS CLAIMS FOR
THESE CASES. 

WE REVERSE AND REMAND TO THE COURT OF APPEALS FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  THE HEARING REQUIRED BY DUE PROCESS, AS DEFINED HEREIN, MUST BE
ACCORDED BEFORE THE EFFECTIVE DECISION.  SEE ARMSTRONG V. MANZO, 380
U.S. 545 (1965).  PETITIONERS ASSERT HERE THAT ONLY ONE OF THE 540
REVOCATIONS ORDERED MOST RECENTLY BY THE IOWA PAROLE BOARD WAS REVERSED
AFTER HEARING, PETITIONERS' REPLY BRIEF 7, SUGGESTING THAT THE HEARING
MAY NOT OBJECTIVELY EVALUATE THE REVOCATION DECISION. 

/2/  SEE WARREN, PROBATION IN THE FEDERAL SYSTEM OF CRIMINAL
JUSTICE, 19 FED.PROB.  3 (SEPT. 1955); ANNUAL REPORT, OHIO ADULT PAROLE
AUTHORITY 1964/65, PP. 13-14; NOTE, PAROLE:  A CRITIQUE OF ITS LEGAL
FOUNDATIONS AND CONDITIONS, 38 N.Y.U.L.REV.  702, 705-707 (1963). 

/3/  NOTE, OBSERVATIONS ON THE ADMINISTRATION OF PAROLE, 79 YALE
L.J. 698, 699-700 (1970). 

/4/  IBID. 

/5/  PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, TASK FORCE REPORT:  CORRECTIONS 62 (1967).  THE SUBSTANTIAL
REVOCATION RATE INDICATES THAT PAROLE ADMINISTRATORS OFTEN DELIBERATELY
ERR ON THE SIDE OF GRANTING PAROLE IN BORDERLINE CASES. 

/6/  SEE MORRISSEY V. BREWER, 443 F.2D 942, AT 953-954, N. 5 (CA8
1971) (LAY, J., DISSENTING); ROSE V. HASKINS, 388 F.2D 91, 104 (CA6
1968) (CELEBREZZE, J., DISSENTING). 

/7/  ARLUKE, A SUMMARY OF PAROLE RULES-- THIRTEEN YEARS LATER, 15
CRIME AND DELINQUENCY 267, 271 (1969); NOTE, PAROLE REVOCATION IN THE
FEDERAL SYSTEM, 56 GEO.L.J. 705, 733 (1968). 

/8/  "IT IS NOT SOPHISTIC TO ATTACH GREATER IMPORTANCE TO A PERSON'S
JUSTIFIABLE RELIANCE IN MAINTAINING HIS CONDITIONAL FREEDOM SO LONG AS
HE ABIDES BY THE CONDITIONS OF HIS RELEASE, THAN TO HIS MERE
ANTICIPATION OR HOPE OF FREEDOM."  UNITED STATES EX REL. BEY V.
CONNECTICUT BOARD OF PAROLE, 443 F.2D 1079, 1086 (CA2 1971). 

/9/  SEE, E.G., MURRAY V. PAGE, 429 F.2D 1359 (CA10 1970) (PAROLE
REVOKED AFTER EIGHT YEARS; 15 YEARS REMAINING ON ORIGINAL TERM). 

/10/  SKLAR, LAW AND PRACTICE IN PROBATION AND PAROLE REVOCATION
HEARINGS, 55 J.CRIM.L.C.& P.S. 175, 194 (1964) (NO DECREASE IN
MICHIGAN, WHICH GRANTS EXTENSIVE RIGHTS); ROSE V. HASKINS, 388 F.2D 91,
102 N. 16 (CA6 1968) (CELEBREZZE, J., DISSENTING) (COST OF IMPRISONMENT
SO MUCH GREATER THAN PAROLE SYSTEM THAT PROCEDURAL REQUIREMENTS WILL
NOT CHANGE ECONOMIC MOTIVATION). 

/11/  SEE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:  CORRECTIONS 83, 88
(1967). 

/12/  SEE N. 15, INFRA.  AS ONE STATE COURT HAS WRITTEN, "BEFORE
SUCH A DETERMINATION OR FINDING CAN BE MADE IT APPEARS THAT THE
PRINCIPLES OF FUNDAMENTAL JUSTICE AND FAIRNESS WOULD AFFORD THE PAROLEE
A REASONABLE OPPORTUNITY TO EXPLAIN AWAY THE ACCUSATION OF A PAROLE
VIOLATION.  (THE PAROLEE) . . . IS ENTITLED TO A CONDITIONAL LIBERTY
AND POSSESSED OF A RIGHT WHICH CAN BE FORFEITED ONLY BY REASON OF A
BREACH OF THE CONDITIONS OF THE GRANT."  CHASE V. PAGE, 456 P.2D 590,
594 (OKLA. CRIM. APP. 1969). 

/13/  NOTE, OBSERVATIONS ON THE ADMINISTRATION OF PAROLE, 79 YALE
L.J. 698, 704-706 (1970) (PAROLE OFFICERS IN CONNECTICUT ADOPT ROLE
MODEL OF SOCIAL WORKER RATHER THAN AN ADJUNCT OF POLICE, AND EXHIBIT A
LACK OF PUNITIVE ORIENTATION). 

/14/  THIS IS NOT AN ISSUE LIMITED TO BAD MOTIVATION.  "PAROLE
AGENTS ARE HUMAN, AND IT IS POSSIBLE THAT FRICTION BETWEEN THE AGENT
AND PAROLEE MAY HAVE INFLUENCED THE AGENT'S JUDGMENT."  4 ATTORNEY
GENERAL'S SURVEY ON RELEASE PROCEDURES:  PAROLE 246 (1939). 

/15/  VERY FEW STATES PROVIDE NO HEARING AT ALL IN PAROLE
REVOCATIONS.  THIRTY STATES PROVIDE IN THEIR STATUTES THAT A PAROLEE
SHALL RECEIVE SOME TYPE OF HEARING.  SEE ALA. CODE, TIT. 42, SEC. 12
(1959); ALASKA STAT. SEC. 33.15.220 (1962); ARIZ. REV. STAT. ANN. SEC.
31-417 (1956); ARK. STAT. ANN. SEC. 43-2810 (SUPP. 1971); DEL. CODE
ANN., TIT. 11, SEC. 4352 (SUPP. 1970); FLA. STAT. ANN. SEC. 947.23(1)
(SUPP. 1972); GA. CODE ANN. SEC. 77-519 (SUPP. 1971); HAW.  REV.  STAT.
SEC. 353-66 (1968); IDAHO CODE SECS. 20-229, 20-229A (SUPP. 1971); ILL.
ANN. STAT., C. 108, SECS. 204(E), 207 (SUPP. 1972); IND. ANN. STAT.
SEC. 13-1611 (SUPP. 1972); KAN. STAT. ANN. SEC. 22-3721 (1971); KY.
REV. STAT. ANN. SEC. 439.330(1)(E) (1962); LA. REV. STAT. ANN. SEC.
15:574.9 (SUPP. 1972); ME. REV. STAT. ANN., TIT. 34, SEC. 1675 (SUPP.
1970-1971); MD. ANN. CODE, ART. 41, SEC. 117 (1971); MICH. COMP. LAWS
SEC. 791.240A, MICH. STAT. ANN. SEC. 28.2310(1) (SUPP. 1972); MISS. 
CODE ANN. SEC. 4004-13 (1956); MO. ANN. STAT. SEC. 549.265 (SUPP.
1971); MONT. REV. CODES ANN. SECS. 94-9838, 94-9835 (1969); N.H. REV.
STAT. ANN. SEC. 607:46 (1955); N.M. STAT. ANN. SEC. 41-17-28 (1972);
N.Y. CORREC.  LAW SEC. 212 SUBD. 7 (SUPP. 1971); N.D. CENT. CODE SEC.
12-59-15 (SUPP. 1971); PA. STAT. ANN., TIT. 61, SEC. 331.21AB) (1964);
TENN. CODE ANN. SEC. 40-3619 (1955); TEX. CODE CRIM. PROC., ART. 42.12,
SEC. 22 (1966); VT. STAT. ANN., TIT. 28, SEC. 1081(B) (1970); WASH.
REV. CODE SECS. 9.95.120 THROUGH 9.95.126 (SUPP. 1971); W.VA. CODE ANN.
SEC. 62-12-19 (1966).  DECISIONS OF STATE AND FEDERAL COURTS HAVE
REQUIRED A NUMBER OF OTHER STATES TO PROVIDE HEARINGS.  SEE HUTCHISON
V. PATTERSON, 267 F.SUPP.  433 (COLO. 1967) (APPROVING PAROLE BOARD
REGULATIONS); UNITED STATES EX REL. BEY V. CONNECTICUT STATE BOARD OF
PAROLE, 443 F.2D 1079 (CA2 1971) (REQUIRING COUNSEL TO BE APPOINTED FOR
REVOCATION HEARINGS); STATE V. HOLMES, 109 N.J.SUPER.  180, 262 A.2D
725 (1970); CHASE V. PAGE, 456 P.2D 590 (OKLA. CRIM.APP.  1969);
BEARDEN V. SOUTH CAROLINA, 443 F.2D 1090 (CA4 1971); BAINE V.
BECKSTEAD, 10 UTAH 2D 4, 347 P.2D 554 (1959); GOOLSBY V. GAGNON, 322
F.SUPP.  460 (ED WIS. 1971).  A NUMBER OF STATES ARE AFFECTED BY NO
LEGAL REQUIREMENT TO GRANT ANY KIND OF HEARING. 

/16/  THE MODEL PENAL CODE SEC. 305.15(1) (PROPOSED OFFICIAL DRAFT
1962) PROVIDES THAT "(THE INSTITUTIONAL PAROLE STAFF SHALL RENDER
REASONABLE AID TO THE PAROLEE IN PREPARATION FOR THE HEARING AND HE
SHALL BE PERMITTED TO ADVISE WITH HIS OWN LEGAL COUNSEL." 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING IN THE RESULT. 

I AGREE THAT A PAROLE MAY NOT BE REVOKED, CONSISTENTLY WITH THE DUE
PROCESS CLAUSE, UNLESS THE PAROLEE IS AFFORDED, FIRST, A PRELIMINARY
HEARING AT THE TIME OF ARREST TO DETERMINE WHETHER THERE IS PROBABLE
CAUSE TO BELIEVE THAT HE HAS VIOLATED HIS PAROLE CONDITIONS AND,
SECOND, A FINAL HEARING WITHIN A REASONABLE TIME TO DETERMINE WHETHER
HE HAS, IN FACT, VIOLATED THOSE CONDITIONS AND WHETHER HIS PAROLE
SHOULD BE REVOKED.  FOR EACH HEARING THE PAROLEE IS ENTITLED TO NOTICE
OF THE VIOLATIONS ALLEGED AND THE EVIDENCE AGAINST HIM, OPPORTUNITY TO
BE HEARD IN PERSON AND TO PRESENT WITNESSES AND DOCUMENTARY EVIDENCE,
AND THE RIGHT TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES, UNLESS
IT IS SPECIFICALLY FOUND THAT A WITNESS WOULD THEREBY BE EXPOSED TO A
SIGNIFICANT RISK OF HARM.  MOREOVER, IN EACH CASE THE DECISIONMAKER
MUST BE IMPARTIAL, THERE MUST BE SOME RECORD OF THE PROCEEDINGS, AND
THE DECISIONMAKER'S CONCLUSIONS MUST BE SET FORTH IN WRITTEN FORM
INDICATING BOTH THE EVIDENCE AND THE REASONS RELIED UPON.  BECAUSE THE
DUE PROCESS CLAUSE REQUIRES THESE PROCEDURES, I AGREE THAT THE CASE
MUST BE REMANDED AS THE COURT ORDERS. 

THE COURT, HOWEVER, STATES THAT IT DOES NOT NOW DECIDE WHETHER THE
PAROLEE IS ALSO ENTITLED AT EACH HEARING TO THE ASSISTANCE OF RETAINED
COUNSEL OR OF APPOINTED COUNSEL IF HE IS INDIGENT.  GOLDBERG V. KELLY,
397 U.S. 254 (1970), NONETHELESS PLAINLY DICTATES THAT HE AT LEAST
"MUST BE ALLOWED TO RETAIN AN ATTORNEY IF HE SO DESIRES."  ID., AT
270.  AS THE COURT SAID THERE, "COUNSEL CAN HELP DELINEATE THE ISSUES,
PRESENT THE FACTUAL CONTENTIONS IN AN ORDERLY MANNER, CONDUCT CROSS
EXAMINATION, AND GENERALLY SAFEGUARD THE INTERESTS OF" HIS CLIENT. 
ID., AT 270-271.  THE ONLY QUESTION OPEN UNDER OUR PRECEDENTS IS
WHETHER COUNSEL MUST BE FURNISHED THE PAROLEE IF HE IS INDIGENT. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

EACH PETITIONER WAS SENTENCED FOR A TERM IN AN IOWA PENITENTIARY FOR
FORGERY.  SOMEWHAT OVER A YEAR LATER EACH WAS RELEASED ON PAROLE. 
ABOUT SIX MONTHS LATER, EACH WAS ARRESTED FOR A PAROLE VIOLATION AND
CONFINED IN A LOCAL JAIL.  IN ABOUT A WEEK, THE IOWA BOARD OF PAROLE
REVOKED THEIR PAROLES AND EACH WAS RETURNED TO THE PENITENTIARY.  AT NO
TIME DURING ANY OF THE PROCEEDINGS WHICH LED TO THE PAROLE REVOCATIONS
WERE THEY GRANTED A HEARING OR THE OPPORTUNITY TO KNOW, QUESTION, OR
CHALLENGE ANY OF THE FACTS WHICH FORMED THE BASIS OF THEIR ALLEGED
PAROLE VIOLATIONS.  NOR WERE THEY GIVEN AN OPPORTUNITY TO PRESENT
EVIDENCE ON THEIR OWN BEHALF OR TO CONFRONT AND CROSS-EXAMINE THOSE ON
WHOSE TESTIMONY THEIR PAROLES WERE REVOKED. 

EACH CHALLENGED THE REVOCATION IN THE STATE COURTS AND, OBTAINING NO
RELIEF, FILED THE PRESENT PETITIONS IN THE FEDERAL DISTRICT COURT,
WHICH DENIED RELIEF.  THEIR APPEALS WERE CONSOLIDATED IN THE COURT OF
APPEALS WHICH, SITTING EN BANC, IN EACH CASE AFFIRMED THE DISTRICT
COURT BY A FOUR-TO-THREE VOTE, 443 F.2D 942.  THE CASES ARE HERE ON A
PETITION FOR A WRIT OF CERTIORARI, 404 U.S. 999, WHICH WE GRANTED
BECAUSE THERE IS A CONFLICT BETWEEN THE DECISION BELOW AND HAHN V.
BURKE, 430 F.2D 100, DECIDED BY THE COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IOWA HAS A BOARD OF PAROLE /1/  WHICH DETERMINES WHO SHALL BE
PAROLED.  ONCE PAROLED, A PERSON IS UNDER THE SUPERVISION OF THE
DIRECTOR OF THE DIVISION OF CORRECTIONS OF THE DEPARTMENT OF SOCIAL
SERVICES, WHO, IN TURN, SUPERVISES PAROLE AGENTS.  PAROLE AGENTS DO NOT
REVOKE THE PAROLE OF ANY PERSON BUT ONLY RECOMMEND THAT THE BOARD OF
PAROLE REVOKE IT.  THE IOWA ACT PROVIDES THAT EACH PAROLEE "SHALL BE
SUBJECT, AT ANY TIME, TO BE TAKEN INTO CUSTODY AND RETURNED TO THE
INSTITUTION" FROM WHICH HE WAS PAROLED.  /2/  THUS, IOWA REQUIRES NO
NOTICE OR HEARING TO PUT A PAROLEE BACK IN PRISON, CURTIS V. BENNETT,
256 IOWA 1164, 131 N.W.2D 1; AND IT IS URGED THAT SINCE PAROLE, LIKE
PROBATION, IS ONLY A PRIVILEGE IT MAY BE SUMMARILY REVOKED.  /3/ SEE
ESCOE V. ZERBST, 295 U.S. 490, 492-493; UGHBANKS V. ARMSTRONG, 208 U.S.
481.  BUT WE HAVE LONG DISCARDED THE RIGHT-PRIVILEGE DISTINCTION.  SEE,
E.G., GRAHAM V. RICHARDSON, 403 U.S. 365, 374; BELL V. BURSON, 402 U.S.
535, 539; PICKERING V. BOARD OF EDUCATION, 391 U.S. 563, 568; EF. VAN
ALSTYNE, THE DEMISE OF THE RIGHT-PRIVILEGE DISTINCTION IN
CONSTITUTIONAL LAW, 81 HARV.L.REV.  1439 (1968). 

THE COURT SAID IN UNITED STATES V. WILSON, 7 PET. 150, 161, THAT A
"PARDON IS A DEED."  THE SAME CAN BE SAID OF A PAROLE, WHICH WHEN
CONFERRED GIVES THE PAROLEE A DEGREE OF LIBERTY WHICH IS OFTEN
ASSOCIATED WITH PROPERTY INTERESTS.     WE HELD IN GOLDBERG V. KELLY,
397 U.S. 254, THAT THE TERMINATION BY A STATE OF PUBLIC ASSISTANCE
PAYMENTS TO A RECIPIENT WITHOUT A PRIOR EVIDENTIARY HEARING DENIES HIM
PROCEDURAL DUE PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT. 
SPEAKING OF THE TERMINATION OF WELFARE BENEFITS WE SAID: 

"THEIR TERMINATION INVOLVES STATE ACTION THAT ADJUDICATES IMPORTANT
RIGHTS.  THE CONSTITUTIONAL CHALLENGE CANNOT BE ANSWERED BY AN ARGUMENT
THAT PUBLIC ASSISTANCE BENEFITS ARE 'A "PRIVILEGE" AND NOT A "RIGHT."' 
SHAPIRO V. THOMPSON, 394 U.S. 618, 627 N. 6 (1969).  RELEVANT
CONSTITUTIONAL RESTRAINTS APPLY AS MUCH TO THE WITHDRAWAL OF PUBLIC
ASSISTANCE BENEFITS AS TO DISQUALIFICATION FOR UNEMPLOYMENT
COMPENSATION, SHERBERT V. VERNER, 374 U.S. 398 (1963); OR TO DENIAL OF
A TAX EXEMPTION, SPEISER V. RANDALL, 357 U.S. 513 (1958); OR TO
DISCHARGE FROM PUBLIC EMPLOYMENT, SLOCHOWER V. BOARD OF HIGHER
EDUCATION, 350 U.S. 551 (1956).  THE EXTENT TO WHICH PROCEDURAL DUE
PROCESS MUST BE AFFORDED THE RECIPIENT IS INFLUENCED BY THE EXTENT TO
WHICH HE MAY BE 'CONDEMNED TO SUFFER GRIEVOUS LOSS,' JOINT ANTI-FASCIST
REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 168 (1951) (FRANKFURTER,
J., CONCURRING), AND DEPENDS UPON WHETHER THE RECIPIENT'S INTEREST IN
AVOIDING THAT LOSS OUTWEIGHS THE GOVERNMENTAL INTEREST IN SUMMARY
ADJUDICATION.  ACCORDINGLY, AS WE SAID IN CAFETERIA & RESTAURANT
WORKERS UNION V. MCELROY, 367 U.S. 886, 895 (1961), 'CONSIDERATION OF
WHAT PROCEDURES DUE PROCESS MAY REQUIRE UNDER ANY GIVEN SET OF
CIRCUMSTANCES MUST BEGIN WITH A DETERMINATION OF THE PRECISE NATURE OF
THE GOVERNMENT FUNCTION INVOLVED AS WELL AS OF THE PRIVATE INTEREST
THAT HAS BEEN AFFECTED BY GOVERNMENTAL ACTION.'  SEE ALSO HANNAH V.
LARCHE, 363 U.S. 420, 440, 442 (1960)."  397 U.S.,AT 262-263. 

     UNDER MODERN CONCEPTS OF PENOLOGY, PAROLING PRISONERS IS PART

  OF THE REHABILITATIVE AIM OF THE CORRECTIONAL PHILOSOPHY.  THE

  OBJECTIVE IS TO RETURN A PRISONER TO A FULL FAMILY AND COMMUNITY

  LIFE.  SEE GENERALLY NOTE, PAROLE REVOCATION IN THE FEDERAL

  SYSTEM, 56 GEO.L.J. 705 (1968); NOTE, PAROLE:  A CRITIQUE OF ITS

LEGAL FOUNDATIONS AND CONDITIONS, 38 N.Y.U.L.REV.  702 (1963);

  COMMENT, 72 YALE L.J. 368 (1962); AND SEE BAINE V. BECKSTEAD, 10

  UTAH 2D 4, 347 P.2D 554 (1959).  THE STATUS HE ENJOYS AS A

  PAROLEE IS AN IMPORTANT A RIGHT AS THOSE WE REVIEWED IN GOLDBERG

  V. KELLY.  THAT STATUS IS CONDITIONED UPON NOT ENGAGING IN

  CERTAIN ACTIVITIES AND PERHAPS IN NOT LEAVING A CERTAIN AREA OR

  LOCALITY.  VIOLATIONS OF CONDITIONS OF PAROLE MAY BE TECHNICAL,

  THEY MAY BE DONE UNKNOWINGLY, THEY MAY BE FLEETING AND OF NO

  CONSEQUENCE.  /4/  SEE, E.G., ARCINIEGA V. FREEMAN, 404 U.S. 4;

  COHEN, DUE PROCESS, EQUAL PROTECTION AND STATE PAROLE REVOCATION

  PROCEEDINGS, 42 U.COLO.L.REV.  197, 229 (1970).  THE PAROLEE

  SHOULD, IN THE CONCEPT OF FAIRNESS IMPLICIT IN DUE PROCESS, HAVE

  A CHANCE TO EXPLAIN.  RATHER, UNDER IOWA'S RULE REVOCATION

  PROCEEDS ON THE IPSE DIXIT OF THE PAROLE AGENT; AND ON HIS WORD

  ALONE EACH OF THESE PETITIONERS HAS ALREADY SERVED THREE

  ADDITIONAL YEARS IN PRISON.  /5/  THE CHARGES MAY OR MAY NOT BE

  TRUE.  WORDS OF EXPLANATION MAY BE ADEQUATE TO TRANSFORM INTO

  TRIVIA WHAT LOOMS LARGE IN THE MIND OF THE PAROLE OFFICER. 

     "(THERE IS NO PLACE IN OUR SYSTEM OF LAW FOR REACHING A RESULT

  OF SUCH TREMENDOUS CONSEQUENCES WITHOUT CEREMONY-- WITHOUT

HEARING, WITHOUT EFFECTIVE ASSISTANCE OF COUNSEL, WITHOUT A

 STATEMENT OF REASONS." 

KENT V. UNITED

  STATES, 383 U.S. 541, 554 (1966). 

PAROLE, /6/  WHILE ORIGINALLY CONCEIVED AS A JUDICIAL FUNCTION, HAS
BECOME LARGELY AN ADMINISTRATIVE MATTER.  THE PAROLE BOARDS HAVE BROAD
DISCRETION IN FORMULATING AND IMPOSING PAROLE CONDITIONS.  "OFTEN VAGUE
AND MORALISTIC, PAROLE CONDITIONS MAY SEEM OPPRESSIVE AND UNFAIR TO THE
PAROLEE."  R. DAWSON, SENTENCING 306 (1969).  THEY ARE DRAWN "TO COVER
ANY CONTINGENCY THAT MIGHT OCCUR," ID., AT 307, AND ARE DESIGNED TO
MAXIMIZE "CONTROL OVER THE PAROLEE BY HIS PAROLE OFFICER."  IBID. 

PAROLE IS COMMONLY REVOKED ON MERE SUSPICION THAT THE PAROLEE MAY
HAVE COMMITTED A CRIME.  ID., AT 366-367.  SUCH GREAT CONTROL OVER THE
PAROLEE VESTS IN A PAROLE OFFICER A BROAD DISCRETION IN REVOKING PAROLE
AND ALSO IN COUNSELING THE PAROLEE-- REFERRING HIM FOR PSYCHIATRIC
TREATMENT OR OBTAINING THE USE OF SPECIALIZED THERAPY FOR NARCOTIC
ADDICTS OR ALCOHOLICS.  ID., AT 321.  TREATMENT OF THE PAROLEE, RATHER
THAN REVOCATION OF HIS PAROLE, IS A COMMON COURSE.  ID., AT 322-323. 
COUNSELING MAY INCLUDE EXTENDING HELP TO A PAROLEE IN FINDING A JOB. 
ID., AT 324 ET SEQ. 

A PAROLEE, LIKE A PRISONER, IS A PERSON ENTITLED TO CONSTITUTIONAL
PROTECTION, INCLUDING PROCEDURAL DUE PROCESS.  /7/  AT THE FEDERAL
LEVEL, THE CONSTRUCTION OF REGULATIONS OF THE FEDERAL PAROLE BOARD
PRESENTS FEDERAL QUESTIONS OF WHICH WE HAVE TAKEN COGNIZANCE.  SEE
ARCINIEGA V. FREEMAN, 404 U.S. 4.  AT THE STATE LEVEL, THE CONSTRUCTION
OF PAROLE STATUTES AND REGULATIONS IS FOR THE STATES ALONE, SAVE AS
THEY IMPLICATE THE FEDERAL CONSTITUTION IN WHICH EVENT THE SUPREMACY
CLAUSE CONTROLS. 

IT IS ONLY PROCEDURAL DUE PROCESS, REQUIRED BY THE FOURTEENTH
AMENDMENT, THAT CONCERNS US IN THE PRESENT CASES.  PROCEDURAL DUE
PROCESS REQUIRES THE FOLLOWING. 

IF A VIOLATION OF A CONDITION OF PAROLE IS INVOLVED, RATHER THAN THE
COMMISSION OF A NEW OFFENSE, THERE SHOULD NOT BE AN ARREST OF THE
PAROLEE AND HIS RETURN TO THE PRISON OR TO A LOCAL JAIL.  /8/  RATHER,
NOTICE OF THE ALLEGED VIOLATION SHOULD BE GIVEN TO THE PAROLEE AND A
TIME SET FOR A HEARING.  /9/  THE HEARING SHOULD NOT BE BEFORE THE
PAROLE OFFICER, AS HE IS THE ONE WHO IS MAKING THE CHARGE AND "THERE IS
INHERENT DANGER IN COMBINING THE FUNCTIONS OF JUDGE AND ADVOCATE." 
JONES V. RIVERS, 338 F.2D 862, 877 (CA4 1964) (SOBELOFF, J.,
CONCURRING).  MOREOVER, THE PAROLEE SHOULD BE ENTITLED TO COUNSEL. 
/10/  SEE HEWETT V. NORTH CAROLINA, 415 F.2D 1316, 1322-1325 (CA4
1969); PEOPLE EX REL. COMBS V. LAVALLEE, 29 APP.DIV.2D 128, 286
N.Y.S.2D 600 (1968); PERRY V. WILLIARD, 247 ORE.  145, 427 P.2D 1020
(1967).  AS THE SUPREME COURT OF OREGON SAID IN PERRY V. WILLIARD, "A
HEARING IN WHICH COUNSEL IS ABSENT OR IS PRESENT ONLY ON BEHALF OF ONE
SIDE IS INHERENTLY UNSATISFACTORY IF NOT UNFAIR.  COUNSEL CAN SEE THAT
RELEVANT FACTS ARE BROUGHT OUT, VAGUE AND INSUBSTANTIAL ALLEGATIONS
DISCOUNTED, AND IRRELEVANCIES ELIMINATED."  ID., AT 148, 427 P.2D, AT
1022.  CF. MEMPA V. RHAY, 389 U.S. 128, 135. 

THE HEARING REQUIRED IS NOT A GRANT OF THE FULL PANOPLY OF RIGHTS
APPLICABLE TO A CRIMINAL TRIAL.  BUT CONFRONTATION WITH THE INFORMER
MAY, AS ROVIARO V. UNITED STATES, 353 U.S. 53, ILLUSTRATES, BE
NECESSARY FOR A FAIR HEARING AND THE ASCERTAINMENT OF THE TRUTH.  THE
HEARING IS TO DETERMINE THE FACT OF PAROLE VIOLATION.  THE RESULTS OF
THE HEARING WOULD GO TO THE PAROLE BOARD-- OR OTHER AUTHORIZED STATE
AGENCY-- FOR FINAL ACTION, AS WOULD CASES WHICH INVOLVED VOLUNTARY
ADMISSION OF VIOLATIONS. 

THE RULE OF LAW IS IMPORTANT IN THE STABILITY OF SOCIETY.  ARBITRARY
ACTIONS IN THE REVOCATION OF PAROLES CAN ONLY IMPEDE AND IMPAIR THE
REHABILITATIVE ASPECTS OF MODERN PENOLOGY.  "NOTICE AND OPPORTUNITY FOR
HEARING APPROPRIATE TO THE NATURE OF THE CASE," BODDIE V. CONNECTICUT,
401 U.S. 371, 378, ARE THE RUDIMENTS OF DUE PROCESS WHICH RESTORE FAITH
THAT OUR SOCIETY IS RUN FOR THE MANY, NOT THE FEW, AND THAT FAIR
DEALING RATHER THAN CAPRICE WILL GOVERN THE AFFAIRS OF MEN.  /11/ 

I WOULD NOT PRESCRIBE THE PRECISE FORMULA FOR THE MANAGEMENT OF THE
PAROLE PROBLEMS.  WE DO NOT SIT AS AN OMBUDSMAN, TELLING THE STATES THE
PRECISE PROCEDURES THEY MUST FOLLOW.  I WOULD HOLD THAT SO FAR AS THE
DUE PROCESS REQUIREMENTS OF PAROLE REVOCATION ARE CONCERNED:  /12/ 

(1) THE PAROLE OFFICER-- WHATEVER MAY BE HIS DUTIES UNDER VARIOUS
STATE STATUTES-- IN IOWA APPEARS TO BE AN AGENT HAVING SOME OF THE
FUNCTIONS OF A PROSECUTOR AND OF THE POLICE:  THE PAROLE OFFICER IS
THEREFORE NOT QUALIFIED AS A HEARING OFFICER; 

(2) THE PAROLEE IS ENTITLED TO A DUE PROCESS NOTICE AND A DUE
PROCESS HEARING OF THE ALLEGED PAROLE VIOLATIONS INCLUDING, FOR
EXAMPLE, THE OPPORTUNITY TO BE CONFRONTED BY HIS ACCUSERS AND TO
PRESENT EVIDENCE AND ARGUMENT ON HIS OWN BEHALF; AND 

(3) THE PAROLEE IS ENTITLED TO THE FREEDOM GRANTED A PAROLEE UNTIL
THE RESULTS OF THE HEARING ARE KNOWN AND THE PAROLE BOARD-- OR OTHER
AUTHORIZED STATE AGENCY-- ACTS.  /13/ 

I WOULD REVERSE THE JUDGMENTS AND REMAND FOR FURTHER CONSIDERATION
IN LIGHT OF THIS OPINION. 

/1/  IOWA CODE SEC. 247.5 (1971) PROVIDES IN PART: 

"THE BOARD OF PAROLE SHALL DETERMINE WHICH OF THE INMATES OF THE
STATE PENAL INSTITUTIONS QUALIFY AND THEREAFTER SHALL BE PLACED UPON
PAROLE.  ONCE AN INMATE IS PLACED ON PAROLE HE SHALL BE UNDER THE
SUPERVISION OF THE DIRECTOR OF THE DIVISION OF CORRECTIONS OF THE
DEPARTMENT OF SOCIAL SERVICES.  THERE SHALL BE A SUFFICIENT NUMBER OF
PAROLE AGENTS TO INSURE PROPER SUPERVISION OF ALL PERSONS PLACED ON
PAROLE.  PAROLE AGENTS SHALL NOT REVOKE THE PAROLE OF ANY PERSON BUT
MAY RECOMMEND THAT THE BOARD OF PAROLE REVOKE SUCH PAROLE." 

/2/  ID., SEC. 247.9 PROVIDES IN PART: 

"ALL PAROLED PRISONERS SHALL REMAIN, WHILE ON PAROLE, IN THE LEGAL
CUSTODY OF THE WARDEN OR SUPERINTENDENT AND UNDER THE CONTROL OF THE
CHIEF PAROLE OFFICER, AND SHALL BE SUBJECT, AT ANY TIME, TO BE TAKEN
INTO CUSTODY AND RETURNED TO THE INSTITUTION FROM WHICH THEY WERE
PAROLED." 

/3/  "A FUNDAMENTAL PROBLEM WITH (THE RIGHT-PRIVILEGE) THEORY IS
THAT PROBATION IS NOW THE MOST FREQUENT PENAL DISPOSITION JUST AS
RELEASE ON PAROLE IS THE MOST FREQUENT FORM OF RELEASE FROM AN
INSTITUTION.  THEY BEAR LITTLE RESEMBLANCE TO EPISODIC ACTS OF MERCY BY
A FORGIVING SOVEREIGN.  A MORE ACCURATE VIEW OF SUPERVISED RELEASE IS
THAT IT IS NOW AN INTEGRAL PART OF THE CRIMINAL JUSTICE PROCESS AND
SHOWS EVERY SIGN OF INCREASING POPULARITY.  SEEN IN THIS LIGHT, THE
QUESTION BECOMES WHETHER LEGAL SAFEGUARDS SHOULD BE PROVIDED FOR
HUNDREDS OF THOUSANDS OF INDIVIDUALS WHO DAILY ARE PROCESSED AND
REGULATED BY GOVERNMENTAL AGENCIES.  THE SYSTEM HAS COME TO DEPEND ON
PROBATION AND PAROLE AS MUCH AS DO THOSE WHO ARE ENMESHED IN THE
SYSTEM.  THUS, IN DEALING WITH CLAIMS RAISED BY OFFENDERS, WE SHOULD
MAKE DECISIONS BASED NOT ON AN OUTWORN CLICHE BUT ON THE BASIS OF
PRESENT-DAY REALITIES."  F. COHEN, THE LEGAL CHALLENGE TO CORRECTIONS:
IMPLICATIONS FOR MANPOWER AND TRAINING 32 (JOINT COMMISSION ON
CORRECTIONAL MANPOWER AND TRAINING 1969). 

/4/  THE VIOLATIONS ALLEGED IN THESE CASES ON WHICH REVOCATION WAS
BASED ARE LISTED BY THE COURT OF APPEALS, 443 F.2D 942, 943-944, NN. 1
AND 2. 

FOR A DISCUSSION OF THE BRITISH SYSTEM THAT DISPENSES WITH PRECISE
CONDITIONS USUALLY EMPLOYED HERE SEE 120 U.PA.L.REV.  282, 311-312
(1971).  AS TO CONDITIONS LIMITING CONSTITUTIONAL RIGHTS SEE ID., AT
313-324, 326-339. 

/5/  AS TO SUMMARY DEPRIVATIONS OF INDIVIDUAL LIBERTY IN COMMUNIST
NATIONS, SEE, E.G., SHAO-CHUAN LENG, JUSTICE IN COMMUNIST CHINA 34
(1967); 1 P. TANG, COMMUNIST CHINA TODAY 271 (2D ED. 1961); J. HAZARD,
COMMUNISTS AND THEIR LAW 121-126 (1969). 

/6/  "PAROLE IS USED AFTER A SENTENCE HAS BEEN IMPOSED WHILE
PROBATION IS USUALLY GRANTED IN LIEU OF A PRISON TERM."  R. CLEGG,
PROBATION AND PAROLE 22 (1964).  SEE BAINE V. BECKSTEAD, 10 UTAH 2D 4,
9, 347 P.2D 554, 558; PEOPLE EX REL. COMBS V. LAVALLEE, 29 APP.DIV.2D
128, 131, 286 N.Y.S.2D 600, 603. 

/7/  SEE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:  CORRECTIONS 83, 84
(1967); 120 U.PA.L.REV.  282, 348-358 (1971). 

/8/  AS JUDGE SKELLY WRIGHT SAID IN HYSER V. REED, 115 U.S.APP.D.C.
254, 291, 318 F.2D 225, 262 (1963) (CONCURRING IN PART AND DISSENTING
IN PART): 

"WHERE SERIOUS VIOLATIONS OF PAROLE HAVE BEEN COMMITTED, THE PAROLEE
WILL HAVE BEEN ARREATED BY LOCAL OR FEDERAL AUTHORITIES ON CHARGES
STEMMING FROM THOSE VIOLATIONS.  WHERE THE VIOLATION OF PAROLE IS NOT
SERIOUS, NO REASON APPEARS WHY HE SHOULD BE INCARCERATED BEFORE
HEARING.  IF, OF COURSE, THE PAROLEE WILLFULLY FAILS TO APPEAR FOR HIS
HEARING, THIS IN ITSELF WOULD JUSTIFY ISSUANCE OF THE WARRANT." 
ACCORD, IN RE TUCKER, 5 CAL.3D 171, 199-200, 486 P.2D 657, 676 (1971)
(TOBRINER, J., CONCURRING AND DISSENTING). 

/9/  AS WE SAID IN ANOTHER CONNECTION IN GREENE V. MCELROY, 360 U.S.
474, 496-497: 

"CERTAIN PRINCIPLES HAVE REMAINED RELATIVELY IMMUTABLE IN OUR
JURISPRUDENCE.  ONE OF THESE IS THAT WHERE GOVERNMENTAL ACTION
SERIOUSLY INSURES AN INDIVIDUAL, AND THE REASONABLENESS OF THE ACTION
DEPENDS ON FACT FINDINGS, THE EVIDENCE USED TO PROVE THE GOVERNMENT'S
CASE MUST BE DISCLOSED TO THE INDIVIDUAL SO THAT HE HAS AN OPPORTUNITY
TO SHOW THAT IT IS UNTRUE.  WHILE THIS IS IMPORTANT IN THE CASE OF
DOCUMENTARY EVIDENCE, IT IS EVEN MORE IMPORTANT WHERE THE EVIDENCE
CONSISTS OF THE TESTIMONY OF INDIVIDUALS WHOSE MEMORY MIGHT BE FAULTY
OR WHO, IN FACT, MIGHT BE PERJURERS OR PERSONS MOTIVATED BY MALICE,
VINDICTIVENESS, INTOLERANCE, PREJUDICE, OR JEALOUSY.  WE HAVE
FORMALIZED THESE PROTECTIONS IN THE REQUIREMENTS OF CONFRONTATION AND
CROSS-EXAMINATION.  THEY HAVE ANCIENT ROOTS.  THEY FIND EXPRESSION IN
THE SIXTH AMENDMENT WHICH PROVIDES THAT IN ALL CRIMINAL CASES THE
ACCUSED SHALL ENJOY THE RIGHT 'TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM.'  THIS COURT HAS BEEN ZEALOUS TO PROTECT THESE RIGHTS FROM
EROSION.  IT HAS SPOKEN OUT NOT ONLY IN CRIMINAL CASES, BUT ALSO IN ALL
TYPES OF CASES WHERE ADMINISTRATIVE AND REGULATORY ACTIONS WERE UNDER
SCRUTINY." 

/10/  AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, PROVIDING DEFENSE SERVICES 43 (APPROVED DRAFT 1968); MODEL
PENAL CODE SEC. 301.4, SEC. 305.15(1) (PROPOSED OFFICIAL DRAFT 1962);
R. DAWSON, SENTENCING (1969).  FOR THE EXPERIENCE OF MICHIGAN IN GIVING
HEARINGS TO PAROLEES SEE ID., AT 355.  IN MICHIGAN, IT IS ESTIMATED
THAT ONLY ONE OUT OF SIX PAROLE VIOLATORS RETAINS COUNSEL.  ONE WHO
CANNOT AFFORD COUNSEL IS SAID TO BE PROTECTED BY THE HEARING MEMBERS OF
THE BOARD.  ID., AT 354.  THE NUMBER WHO ASK FOR PUBLIC HEARINGS ARE
TYPICALLY FIVE OR SIX A YEAR, THE LARGEST IN A SINGLE YEAR BEING 10. 
MICHIGAN HAS HAD THIS LAW SINCE 1937.  ID., AT 355.  BUT THE MICHIGAN
EXPERIENCE MAY NOT BE TYPICAL, FOR A PAROLE VIOLATOR IS PICKED UP AND
RETURNED AT ONCE TO THE INSTITUTION FROM WHICH HE WAS PAROLED.  ID., AT
352-353.     BY THE WAY OF CONTRAST, PAROLE REVOCATION HEARINGS IN
CALIFORNIA ARE SECRETIVE AFFAIRS CONDUCTED BEHIND CLOSED DOORS AND WITH
NO WRITTEN RECORD OF THE PROCEEDINGS AND IN WHICH THE PAROLEE IS DENIED
THE ASSISTANCE OF COUNSEL AND THE OPPORTUNITY TO PRESENT WITNESSES ON
HIS BEHALF.  VAN DYKE, PAROLE REVOCATION HEARINGS IN CALIFORNIA:  THE
RIGHT TO COUNSEL, 59 CALIF.L.REV.  1215 (1971).  SEE ALSO NOTE, 56
GEO.L.J. 705 (1968) (FEDERAL PAROLE REVOCATION PROCEDURES). 

/11/  THE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION, AMICUS
CURIAE, CONTAINS IN APPENDIX A THE STATES THAT BY STATUTE OR DECISION
REQUIRE SOME FORM OF HEARING BEFORE PAROLE IS REVOKED AND THOSE THAT DO
NOT.  ALL BUT NINE STATES NOW HOLD HEARINGS ON REVOCATION OF PROBATION
AND PAROLE, SOME WITH TRIAL-TYPE RIGHTS INCLUDING REPRESENTATION BY
COUNSEL. 

/12/  WE EXCEPT OF COURSE THE COMMISSION OF ANOTHER OFFENSE WHICH
FROM THE INITIAL STEP TO THE END IS GOVERNED BY THE NORMAL RULES OF
CRIMINAL PROCEDURE. 

/13/  THE AMERICAN CORRECTIONAL ASSOCIATION STATES IN ITS MANUAL OF
CORRECTIONAL STANDARDS 279 (3D ED. 1966) THAT: 

"TO AN EVEN GREATER EXTENT THAN IN THE CASE OF IMPRISONMENT,
PROBATION AND PAROLE PRACTICE IS DETERMINED BY AN ADMINISTRATIVE
DISCRETION THAT IS LARGELY UNCONTROLLED BY LEGAL STANDARDS,
PROTECTIONS, OR REMEDIES.  UNTIL STATUTORY AND CASE LAW ARE MORE FULLY
DEVELOPED, IT IS VITALLY IMPORTANT WITHIN ALL OF THE CORRECTIONAL
FIELDS THAT THERE SHOULD BE ESTABLISHED AND MAINTAINED REASONABLE NORMS
AND REMEDIES AGAINST THE SORTS OF ABUSES THAT ARE LIKELY TO DEVELOP
WHERE MEN HAVE GREAT POWER OVER THEIR FELLOWS AND WHERE RELATIONSHIPS
MAY BECOME BOTH MECHANICAL AND ARBITRARY." 

AND IT PROVIDES FOR PAROLE REVOCATION HEARINGS: 

"AS SOON AS PRACTICABLE AFTER CAUSING AN ALLEGED VIOLATOR (TO BE)
TAKEN INTO CUSTODY ON THE BASIS OF A PAROLE BOARD WARRANT, THE PRISONER
SHOULD BE GIVEN AN OPPORTUNITY TO APPEAR BEFORE THE BOARD OR ITS
REPRESENTATIVE.  THE PRISONER SHOULD BE MADE FULLY AWARE OF THE REASONS
FOR THE WARRANT, AND GIVEN AMPLE OPPORTUNITY TO REFUTE THE CHARGES
PLACED AGAINST HIM OR TO COMMENT AS TO EXTENUATING CIRCUMSTANCES.  THE
HEARING SHOULD BE THE BASIS FOR CONSIDERATION OF POSSIBLE REINSTATEMENT
TO PAROLE SUPERVISION ON THE BASIS OF THE FINDINGS OF FACT OR OF
REPAROLE WHERE IT APPEARS THAT FURTHER INCARCERATION WOULD SERVE NO
USEFUL PURPOSE."  ID., AT 130. 

THE AMERICAN BAR ASSOCIATION STATES AT P. 10 OF ITS BRIEF AMICUS IN
THE PRESENT CASES THAT IT IS "IN FULL AGREEMENT WITH THE AMERICAN
CORRECTIONAL ASSOCIATION IN THIS INSTANCE.  THE POSITION THAT A HEARING
IS TO BE AFFORDED ON PAROLE REVOCATION IS CONSISTENT WITH SEVERAL SETS
OF CRIMINAL JUSTICE STANDARDS FORMALLY APPROVED BY THE ASSOCIATION
THROUGH ITS HOUSE OF DELEGATES." 

W. DON BRITTIN, JR., BY APPOINTMENT OF THE COURT, 404 U.S. 1036,
ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

LAWRENCE S. SEUFERER, ASSISTANT ATTORNEY GENERAL OF IOWA, ARGUED THE
CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WAS RICHARD C. TURNER,
ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY WILLIAM W.
FALSGRAF AND ROBERT J. KUTAK FOR THE AMERICAN BAR ASSOCIATION; BY
MELVIN L. WULF, HERMAN SCHWARTZ, AND ROBERT PLOTKIN FOR THE AMERICAN
CIVIL LIBERTIES UNION; AND BY CRAIG ELDON PINKUS FOR JAMES H. RUSSELL. 

..END :















UNITED STATES V. BREWSTER, 408 U.S. 501 


       UNITED STATES V. BREWSTER

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA

        NO. 70-45.  ARGUED OCTOBER 18, 1971-- REARGUED MARCH 20,

           1972-- DECIDED JUNE 29, 1972 


APPELLEE, A FORMER UNITED STATES SENATOR, WAS CHARGED WITH THE
SOLICITATION AND ACCEPTANCE OF BRIBES IN VIOLATION OF 18 U.S.C.
201(C)(1) AND 201(G).  THE DISTRICT COURT, ON APPELLEE'S PRE-TRIAL
MOTION, DISMISSED THE INDICTMENT ON THE GROUND THAT THE SPEECH OR
DEBATE CLAUSE OF THE CONSTITUTION SHIELDED HIM "FROM ANY PROSECUTION
FOR ALLEGED BRIBERY TO PERFORM A LEGISLATIVE ACT."  THE UNITED STATES
FILED A DIRECT APPEAL TO THIS COURT UNDER 18 U.S.C. 3731 (1964 ED.,
SUPP. V), WHICH APPELLEE CONTENDS THIS COURT DOES NOT HAVE JURISDICTION
TO ENTERTAIN BECAUSE THE DISTRICT COURT'S ACTION WAS NOT "A DECISION OR
JUDGMENT SETTING ASIDE, OR DISMISSING" THE INDICTMENT BUT WAS INSTEAD A
SUMMARY JUDGMENT ON THE MERITS BASED ON THE FACTS OF THE CASE.  HELD: 

1.  THIS COURT HAS JURISDICTION UNDER 18 U.S.C. 3731 (1964 ED.,
SUPP. V) TO HEAR THE APPEAL, SINCE THE DISTRICT COURT'S ORDER WAS BASED
UPON ITS DETERMINATION OF THE CONSTITUTIONAL INVALIDITY OF 18 U.S.C.
201(C)(1) AND 201(G) ON THE FACTS AS ALLEGED IN THE INDICTMENT.  PP.
504-507. 

2.  THE PROSECUTION OF APPELLEE IS NOT PROHIBITED BY THE SPEECH OR
DEBATE CLAUSE.  ALTHOUGH THAT PROVISION PROTECTS MEMBERS OF CONGRESS
FROM INQUIRY INTO LEGISLATIVE ACTS OR THE MOTIVATION FOR PERFORMANCE OF
SUCH ACTS, UNITED STATES V. JOHNSON, 383 U.S. 169, 185, IT DOES NOT
PROTECT ALL CONDUCT RELATING TO THE LEGISLATIVE PROCESS.  SINCE IN THIS
CASE PROSECUTION OF THE BRIBERY CHARGES DOES NOT NECESSITATE INQUIRY
INTO LEGISLATIVE ACTS OR MOTIVATION, THE DISTRICT COURT ERRED IN
HOLDING THAT THE SPEECH OR DEBATE CLAUSE REQUIRED DISMISSAL OF THE
INDICTMENT.  PP. 507-529. 

REVERSED AND REMANDED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART
MARSHALL, BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BRENNAN, J.,
FILED A DISSENTING OPINION IN WHICH DOUGLAS, J., JOINED, POST, P. 529. 
WHITE, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN,
JJ., JOINED, POST, P. 551. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THIS DIRECT APPEAL FROM THE DISTRICT COURT PRESENTS THE QUESTION
WHETHER A MEMBER OF CONGRESS MAY BE PROSECUTED UNDER 18 U.S.C.
201(C)(1), 201(G), FOR ACCEPTING A BRIBE IN EXCHANGE FOR A PROMISE
RELATING TO AN OFFICIAL ACT.  APPELLEE, A FORMER UNITED STATES SENATOR,
WAS CHARGED IN FIVE COUNTS OF A 10-COUNT INDICTMENT.  /1/  COUNTS ONE,
THREE, FIVE, AND SEVEN ALLEGED THAT ON FOUR SEPARATE OCCASIONS,
APPELLEE, WHILE HE WAS A SENATOR AND A MEMBER OF THE SENATE COMMITTEE
ON POST OFFICE AND CIVIL SERVICE, 

"DIRECTLY AND INDIRECTLY, CORRUPTLY ASKED, SOLICITED, SOUGHT,
ACCEPTED, RECEIVED AND AGREED TO RECEIVE (SUMS) . . . IN RETURN FOR
BEING INFLUENCED IN HIS PERFORMANCE OF OFFICIAL ACTS IN RESPECT TO HIS
ACTION, VOTE, AND DECISION ON POSTAGE RATE LEGISLATION WHICH MIGHT AT
ANY TIME BE PENDING BEFORE HIM IN HIS OFFICIAL CAPACITY . . . IN
VIOLATION OF SECTIONS 201(C)(1) AND 2, TITLE 18, UNITED STATES CODE." 
/2/ COUNT NINE CHARGED THAT APPELLEE 

"DIRECTLY AND INDIRECTLY, ASKED, DEMANDED, EXACTED, SOLICITED,
SOUGHT, ACCEPTED, RECEIVED AND AGREED TO RECEIVE (A SUM) . . . FOR AND
BECAUSE OF OFFICIAL ACTS PERFORMED BY HIM IN RESPECT TO HIS ACTION,
VOTE AND DECISION ON POSTAGE RATE LEGISLATION WHICH HAD BEEN PENDING
BEFORE HIM IN HIS OFFICIAL CAPACITY . . . IN VIOLATION OF SECTIONS
201(G) AND 2, TITLE 18, UNITED STATES CODE."  /3/ 

BEFORE A TRIAL DATE WAS SET, THE APPELLEE MOVED TO DISMISS THE
INDICTMENT ON THE GROUND OF IMMUNITY UNDER THE SPEECH OR DEBATE CLAUSE,
ART. I, SEC. 6, OF THE CONSTITUTION, WHICH PROVIDES: 

"(FOR ANY SPEECH OR DEBATE IN EITHER HOUSE, THEY (SENATORS OR
REPRESENTATIVES) SHALL NOT BE QUESTIONED IN ANY OTHER PLACE."  AFTER
HEARING ARGUMENT, THE DISTRICT COURT RULED FROM THE BENCH: 

     "GENTLEMEN, BASED ON THE FACTS OF THIS CASE, IT IS ADMITTED BY

  THE GOVERNMENT THAT THE FIVE COUNTS OF THE INDICTMENT WHICH

CHARGE SENATOR BREWSTER RELATE TO THE ACCEPTANCE OF BRIBES IN

  CONNECTION WITH THE PERFORMANCE OF A LEGISLATIVE FUNCTION BY A

  SENATOR OF THE UNITED STATES. 

     "IT IS THE OPINION OF THIS COURT THAT THE IMMUNITY UNDER THE

  SPEECH AND (SIC) DEBATE CLAUSE OF THE CONSTITUTION, PARTICULARLY

  IN VIEW OF THE INTERPRETATION GIVEN THAT CLAUSE BY THE SUPREME

  COURT IN JOHNSON, SHIELDS SENATOR BREWSTER, CONSTITUTIONALLY

  SHIELDS HIM FROM ANY PROSECUTION FOR ALLEGED BRIBERY TO PERFORM A

  LEGISLATIVE ACT. 

     "I WILL, THEREFORE, DISMISS THE ODD COUNTS OF THE INDICTMENT,

  1, 3, 5, 7 AND 9, AS THEY APPLY TO SENATOR BREWSTER." 

THE UNITED STATES FILED A DIRECT APPEAL TO THIS COURT, PURSUANT TO
18 U.S.C. 3731 (1964 ED., SUPP. V).  /4/  WE POSTPONED CONSIDERATION OF
JURISDICTION UNTIL HEARING THE CASE ON THE MERITS.  401 U.S. 935
(1971). 

        I 

THE UNITED STATES ASSERTS THAT THIS COURT HAS JURISDICTION UNDER 18
U.S.C. 3731 (1964 ED., SUPP. V) TO REVIEW THE DISTRICT COURT'S
DISMISSAL OF THE INDICTMENT AGAINST APPELLEE.  SPECIFICALLY, THE UNITED
STATES URGES THAT THE DISTRICT COURT DECISION WAS EITHER "A DECISION OR
JUDGMENT SETTING ASIDE, OR DISMISSING (AN) INDICTMENT . . . OR ANY
COUNT THEREOF, WHERE SUCH DECISION OR JUDGMENT IS BASED UPON THE
INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT . .
. IS FOUNDED" OR A "DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR,
WHEN THE DEFENDANT HAS NOT BEEN PUT IN JEOPARDY."  IF THE DISTRICT
COURT DECISION IS CORRECTLY CHARACTERIZED BY EITHER OF THOSE
DESCRIPTIONS, THIS COURT HAS JURISDICTION UNDER THE STATUTE TO HEAR THE
UNITED STATES' APPEAL. 

IN UNITED STATES V. KNOX, 396 U.S. 77 (1969), WE CONSIDERED A DIRECT
APPEAL BY THE UNITED STATES FROM THE DISMISSAL OF AN INDICTMENT THAT
CHARGED THE APPELLEE IN THAT CASE WITH VIOLATING 18 U.S.C. 1001, A
GENERAL CRIMINAL PROVISION PUNISHING FRAUDULENT STATEMENTS MADE TO ANY
FEDERAL AGENCY.  THE APPELLEE, KNOX, HAD BEEN ACCUSED OF WILLFULLY
UNDERSTATING THE NUMBER OF EMPLOYEES ACCEPTING WAGERS ON HIS BEHALF
WHEN HE FILED A FORM THAT PERSONS ENGAGED IN THE BUSINESS OF ACCEPTING
WAGERS WERE REQUIRED BY LAW TO FILE.  THE DISTRICT COURT DISMISSED THE
COUNTS CHARGING VIOLATIONS OF SEC. 1001 ON THE GROUND THAT THE APPELLEE
COULD NOT BE PROSECUTED FOR FAILURE TO ANSWER THE WAGERING FORM
CORRECTLY SINCE HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF
INCRIMINATION PREVENTED PROSECUTION FOR FAILURE TO FILE THE FORM IN ANY
RESPECT.  WE FOUND JURISDICTION UNDER SEC. 3731 TO HEAR THE APPEAL IN
KNOX ON THE THEORY THAT THE DISTRICT COURT HAD PASSED ON THE VALIDITY
OF THE STATUTE ON WHICH THE INDICTMENT RESTED.  396 U.S.,AT 79 N. 2. 
THE DISTRICT COURT IN THAT CASE HELD THAT "SEC.  1001, AS APPLIED TO
THIS CLASS OF CASES, IS CONSTITUTIONALLY INVALID."  IBID. 

THE COUNTS OF THE INDICTMENT INVOLVED IN THE INSTANT CASE WERE BASED
ON 18 U.S.C. 201, A BRIBERY STATUTE.  SECTION 201 APPLIES TO "PUBLIC
OFFICIALS," AND THAT TERM IS DEFINED EXPLICITLY TO INCLUDE MEMBERS OF
CONGRESS AS WELL AS OTHER EMPLOYEES AND OFFICERS OF THE UNITED STATES. 
SUBSECTIONS (C)(1) AND (G) PROHIBIT THE ACCEPTING OF A BRIBE IN RETURN
FOR BEING INFLUENCED IN OR PERFORMING AN OFFICIAL ACT.  THE RULING OF
THE DISTRICT COURT HERE WAS THAT "THE SPEECH (OR) DEBATE CLAUSE OF THE
CONSTITUTION, PARTICULARLY IN VIEW OF THE INTERPRETATION GIVEN . . . IN
JOHNSON, SHIELDS SENATOR BREWSTER . . . FROM ANY PROSECUTION FOR
ALLEGED BRIBERY TO PERFORM A LEGISLATIVE ACT."  SINCE SEC. 201 APPLIES
ONLY TO BRIBERY FOR THE PERFORMANCE OF OFFICIAL ACTS, THE DISTRICT
COURT'S RULING IS THAT, AS APPLIED TO MEMBERS OF CONGRESS, SEC. 201 IS
CONSTITUTIONALLY INVALID. 

APPELLEE ARGUES THAT THE ACTION OF THE DISTRICT COURT WAS NOT "A
DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING" THE INDICTMENT, BUT
WAS INSTEAD A SUMMARY JUDGMENT ON THE MERITS.  APPELLEE ALSO ARGUES
THAT THE DISTRICT COURT DID NOT RULE THAT SEC. 201 COULD NEVER BE
CONSTITUTIONALLY APPLIED TO A MEMBER OF CONGRESS, BUT THAT "BASED ON
THE FACTS OF THIS CASE" THE STATUTE COULD NOT BE CONSTITUTIONALLY
APPLIED.  UNDER UNITED STATES V. SISSON, 399 U.S. 267 (1970), AN APPEAL
DOES NOT LIE FROM A DECISION THAT RESTS, NOT UPON THE SUFFICIENCY OF
THE INDICTMENT ALONE, BUT UPON EXTRANEOUS FACTS.  IF AN INDICTMENT IS
DISMISSED AS A RESULT OF A STIPULATED FACT OR THE SHOWING OF
EVIDENTIARY FACTS OUTSIDE THE INDICTMENT, WHICH FACTS WOULD CONSTITUTE
A DEFENSE ON THE MERITS AT TRIAL, NO APPEAL IS AVAILABLE.  SEE UNITED
STATES V. FINDLEY, 439 F.2D 970 (CA1 1971).  APPELLEE CLAIMS THAT THE
DISTRICT COURT RELIED ON FACTUAL MATTER OTHER THAN FACTS ALLEGED IN THE
INDICTMENT. 

AN EXAMINATION OF THE RECORD, HOWEVER, DISCLOSES THAT, WITH THE
EXCEPTION OF A LETTER IN WHICH THE UNITED STATES BRIEFLY OUTLINED THE
THEORY OF ITS CASE AGAINST APPELLEE, THERE WERE NO "FACTS" ON WHICH THE
DISTRICT COURT COULD ACT OTHER THAN THOSE RECITED IN THE INDICTMENT. 
APPELLEE CONTENDS THAT THE STATEMENT "BASED ON THE FACTS OF THIS CASE,"
USED BY THE DISTRICT JUDGE IN ANNOUNCING HIS DECISION, SHOWS RELIANCE
ON THE GOVERNMENT'S OUTLINE OF ITS CASE.  WE READ THE DISTRICT JUDGE'S
REFERENCE TO "FACTS," IN CONTEXT, AS A REFERENCE TO THE FACTS ALLEGED
IN THE INDICTMENT, AND HIS RULING AS HOLDING THAT MEMBERS OF CONGRESS
ARE TOTALLY IMMUNE FROM PROSECUTION FOR ACCEPTING BRIBES FOR THE
PERFORMANCE OF OFFICIAL, I.E., LEGISLATIVE, ACTS BY VIRTUE OF THE
SPEECH OR DEBATE CLAUSE.  UNDER THAT INTERPRETATION OF SEC. 201, IT
CANNOT BE APPLIED TO A MEMBER OF CONGRESS WHO ACCEPTS BRIBES THAT
RELATE IN ANY WAY TO HIS OFFICE.  WE CONCLUDE, THEREFORE, THAT THE
DISTRICT COURT WAS RELYING ONLY ON FACTS ALLEGED IN THE INDICTMENT AND
THAT THE DISMISSAL OF THE INDICTMENT WAS BASED ON A DETERMINATION THAT
THE STATUTE ON WHICH THE INDICTMENT WAS DRAWN WAS INVALID UNDER THE
SPEECH OR DEBATE CLAUSE.  AS A CONSEQUENCE, THIS COURT HAS JURISDICTION
TO HEAR THE APPEAL. 

        II 

THE IMMUNITIES OF THE SPEECH OR DEBATE CLAUSE WERE NOT WRITTEN INTO
THE CONSTITUTION SIMPLY FOR THE PERSONAL OR PRIVATE BENEFIT OF MEMBERS
OF CONGRESS, BUT TO PROTECT THE INTEGRITY OF THE LEGISLATIVE PROCESS BY
INSURING THE INDEPENDENCE OF INDIVIDUAL LEGISLATORS.  THE GENESIS OF
THE CLAUSE AT COMMON LAW IS WELL KNOWN.  IN HIS OPINION FOR THE COURT
IN UNITED STATES V. JOHNSON, 383 U.S. 169 (1966), MR. JUSTICE HARLAN
CANVASSED THE HISTORY OF THE CLAUSE AND CONCLUDED THAT IT 

"WAS THE CULMINATION OF A LONG STRUGGLE FOR PARLIAMENTARY
SUPREMACY.  BEHIND THESE SIMPLE PHRASES LIES A HISTORY OF CONFLICT
BETWEEN THE COMMONS AND THE TUDOR AND STUART MONARCHS DURING WHICH
SUCCESSIVE MONARCHS UTILIZED THE CRIMINAL AND CIVIL LAW TO SUPPRESS AND
INTIMIDATE CRITICAL LEGISLATORS.  SINCE THE GLORIOUS REVOLUTION IN
BRITAIN, AND THROUGHOUT

  UNITED STATES HISTORY, THE PRIVILEGE HAS BEEN RECOGNIZED AS AN
IMPORTANT PROTECTION OF THE

INDEPENDENCE AND INTEGRITY OF THE LEGISLATURE."  ID., AT 178. 

ALTHOUGH THE SPEECH OR DEBATE CLAUSE'S HISTORIC ROOTS ARE IN ENGLISH
HISTORY, IT MUST BE INTERPRETED IN LIGHT OF THE AMERICAN EXPERIENCE,
AND IN THE CONTEXT OF THE AMERICAN CONSTITUTIONAL SCHEME OF GOVERNMENT
RATHER THAN THE ENGLISH PARLIAMENTARY SYSTEM.  WE SHOULD BEAR IN MIND
THAT THE ENGLISH SYSTEM DIFFERS FROM OURS IN THAT THEIR PARLIAMENT IS
THE SUPREME AUTHORITY, NOT A CO-ORDINATE BRANCH.  OUR SPEECH OR DEBATE
PRIVILEGE WAS DESIGNED TO PRESERVE LEGISLATIVE INDEPENDENCE, NOT
SUPREMACY.  /5/  OUR TASK, THEREFORE, IS TO APPLY THE CLAUSE IN SUCH A
WAY AS TO INSURE THE INDEPENDENCE OF THE LEGISLATURE WITHOUT ALTERING
THE HISTORIC BALANCE OF THE THREE CO-EQUAL BRANCHES OF GOVERNMENT. 

IT DOES NOT UNDERMINE THE VALIDITY OF THE FRAMERS' CONCERN FOR THE
INDEPENDENCE OF THE LEGISLATIVE BRANCH TO ACKNOWLEDGE THAT OUR HISTORY
DOES NOT REFLECT A CATALOGUE OF ABUSES AT THE HANDS OF THE EXECUTIVE
THAT GAVE RISE TO THE PRIVILEGE IN ENGLAND.  THERE IS NOTHING IN OUR
HISTORY, FOR EXAMPLE, COMPARABLE TO THE IMPRISONMENT OF A MEMBER OF
PARLIAMENT IN THE TOWER WITHOUT A HEARING AND, OWING TO THE
SUBSERVIENCE OF SOME ROYAL JUDGES TO THE 17TH AND 18TH CENTURY ENGLISH
KINGS, WITHOUT MEANINGFUL RECOURSE TO A WRIT OF HABEAS CORPUS.  /6/  IN
FACT, ON ONLY ONE PREVIOUS OCCASION HAS THIS COURT EVER INTERPRETED THE
SPEECH OR DEBATE CLAUSE IN THE CONTEXT OF A CRIMINAL CHARGE AGAINST A
MEMBER OF CONGRESS. 

(A) IN UNITED STATES V. JOHNSON, SUPRA, THE COURT REVIEWED THE
CONVICTION OF A FORMER REPRESENTATIVE ON SEVEN COUNTS OF VIOLATING THE
FEDERAL CONFLICT-OF-INTEREST STATUTE, 18 U.S.C. 281 (1964 ED.), AND ON
ONE COUNT OF CONSPIRACY TO DEFRAUD THE UNITED STATES, 18 U.S.C. 371. 
THE COURT OF APPEALS HAD SET ASIDE THE CONVICTION ON THE COUNT FOR
CONSPIRACY TO DEFRAUD AS VIOLATING THE SPEECH OR DEBATE CLAUSE.  MR.
JUSTICE HARLAN, SPEAKING FOR THE COURT, 383 U.S.,AT 183, CITED THE OFT
QUOTED PASSAGE OF MR. JUSTICE LUSH IN EX PARTE WASON, L.R. 4 Q.B. 573
(1869): 

"I AM CLEARLY OF OPINION THAT WE OUGHT NOT TO ALLOW IT TO BE DOUBTED
FOR A MOMENT THAT THE MOTIVES OR INTENTIONS OF MEMBERS OF EITHER HOUSE
CANNOT BE INQUIRED INTO BY CRIMINAL PROCEEDINGS WITH RESPECT TO
ANYTHING THEY MAY DO OR SAY IN THE HOUSE."  ID., AT 577.  IN KILBOURN
V. THOMPSON, 103 U.S. 168 (1881), THE FIRST CASE IN WHICH THIS COURT
INTERPRETED THE SPEECH OR DEBATE CLAUSE, THE COURT EXPRESSED A SIMILAR
VIEW OF THE AMBIT OF THE AMERICAN PRIVILEGE.  THERE THE COURT SAID THE
CLAUSE IS TO BE READ BROADLY TO INCLUDE ANYTHING "GENERALLY DONE IN A
SESSION OF THE HOUSE BY ONE OF ITS MEMBERS IN RELATION TO THE BUSINESS
BEFORE IT."  ID., AT 204.  THIS STATEMENT, TOO, WAS CITED WITH APPROVAL
IN JOHNSON, 383 U.S.,AT 179.  OUR CONCLUSION IN JOHNSON WAS THAT THE
PRIVILEGE PROTECTED MEMBERS FROM INQUIRY INTO LEGISLATIVE ACTS OR THE
MOTIVATION FOR ACTUAL PERFORMANCE OF LEGISLATIVE ACTS.  ID., AT 185. 

IN APPLYING THE SPEECH OR DEBATE CLAUSE, THE COURT FOCUSED ON THE
SPECIFIC FACTS OF THE JOHNSON PROSECUTION.  THE CONSPIRACY-TO-DEFRAUD
COUNT ALLEGED AN AGREEMENT AMONG REPRESENTATIVE JOHNSON AND THREE CO
DEFENDANTS TO OBTAIN THE DISMISSAL OF PENDING INDICTMENTS AGAINST
OFFICIALS OF SAVINGS AND LOAN INSTITUTIONS.  FOR THESE SERVICES, WHICH
INCLUDED A SPEECH MADE BY JOHNSON ON THE HOUSE FLOOR, THE GOVERNMENT
CLAIMED JOHNSON WAS PAID A BRIBE.  AT TRIAL, THE GOVERNMENT QUESTIONED
JOHNSON EXTENSIVELY, RELATIVE TO THE CONSPIRACY-TO-DEFRAUD COUNT,
CONCERNING THE AUTHORSHIP OF THE SPEECH, THE FACTUAL BASIS FOR CERTAIN
STATEMENTS MADE IN THE SPEECH, AND HIS MOTIVES FOR GIVING THE SPEECH. 
THE COURT HELD THAT THE USE OF EVIDENCE OF A SPEECH TO SUPPORT A COUNT
UNDER A BROAD CONSPIRACY STATUTE WAS PROHIBITED BY THE SPEECH OR DEBATE
CLAUSE.  THE GOVERNMENT WAS, THEREFORE, PRECLUDED FROM PROSECUTING THE
CONSPIRACY COUNT ON RETRIAL, INSOFAR AS IT DEPENDED ON INQUIRIES INTO
SPEECHES MADE IN THE HOUSE. 

IT IS IMPORTANT TO NOTE THE VERY NARROW SCOPE OF THE COURT'S HOLDING
IN JOHNSON: 

     "WE HOLD THAT A PROSECUTION UNDER A GENERAL CRIMINAL STATUTE

  DEPENDENT ON SUCH INQUIRIES (INTO THE SPEECH OR ITS PREPARATION)

  NECESSARILY CONTRAVENES THE SPEECH OR DEBATE CLAUSE.  WE

  EMPHASIZE THAT OUR HOLDING IS LIMITED TO PROSECUTIONS INVOLVING

  CIRCUMSTANCES SUCH AS THOSE PRESENTED IN THE CASE BEFORE US." 

  383 U.S.,AT 184-185. 

THE OPINION SPECIFICALLY LEFT OPEN THE QUESTION OF A PROSECUTION WHICH,
THOUGH POSSIBLY ENTAILING SOME REFERENCE TO LEGISLATIVE ACTS, IS
FOUNDED UPON A "NARROWLY DRAWN" STATUTE PASSED BY CONGRESS IN THE
EXERCISE OF ITS POWER TO REGULATE ITS MEMBERS' CONDUCT.  OF MORE
RELEVANCE TO THIS CASE, THE COURT IN JOHNSON EMPHASIZED THAT ITS
DECISION DID NOT AFFECT A PROSECUTION THAT, THOUGH FOUNDED ON A
CRIMINAL STATUTE OF GENERAL APPLICATION, "DOES NOT DRAW IN QUESTION THE
LEGISLATIVE ACTS OF THE DEFENDANT MEMBER OF CONGRESS OR HIS MOTIVES FOR
PERFORMING THEM."  ID., AT 185.  THE COURT DID NOT QUESTION THE POWER
OF THE UNITED STATES TO TRY JOHNSON ON THE CONFLICT-OF-INTEREST COUNTS,
AND IT AUTHORIZED A NEW TRIAL ON THE CONSPIRACY COUNT, PROVIDED THAT
ALL REFERENCES TO THE MAKING OF THE SPEECH WERE ELIMINATED.  /7/ 
THREE MEMBERS OF THE COURT WOULD HAVE AFFIRMED JOHNSON'S CONVICTION. 
MR. CHIEF JUSTICE WARREN, JOINED BY MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN, CONCURRING IN PART AND DISSENTING IN PART, STATED: 

     "AFTER READING THE RECORD, IT IS MY CONCLUSION THAT THE COURT

  OF APPEALS ERRED IN DETERMINING THAT THE EVIDENCE CONCERNING THE

  SPEECH INFECTED THE JURY'S JUDGMENT ON THE (CONFLICT-OF-INTEREST)

  COUNTS.  THE EVIDENCE AMPLY SUPPORTS THE PROSECUTION'S THEORY AND

  THE JURY'S VERDICT ON THESE COUNTS-- THAT THE RESPONDENT RECEIVED

  OVER $20,000 FOR ATTEMPTING TO HAVE THE JUSTICE DEPARTMENT

  DISMISS AN INDICTMENT AGAINST HIS (PRESENT) CO-CONSPIRATORS,

  WITHOUT DISCLOSING HIS ROLE IN THE ENTERPRISE.  THIS IS THE

  CLASSIC EXAMPLE OF A VIOLATION OF SEC. 281 BY A MEMBER OF THE

  CONGRESS.  . . . THE ARGUMENTS OF GOVERNMENT COUNSEL AND THE

  COURT'S INSTRUCTIONS SEPARATING THE CONSPIRACY FROM THE

  SUBSTANTIVE COUNTS SEEM UNIMPEACHABLE.  THE SPEECH WAS A MINOR

  PART OF THE PROSECUTION.  THERE WAS NOTHING IN IT TO INFLAME THE

  JURY AND THE RESPONDENT POINTED WITH PRIDE TO IT AS EVIDENCE OF

  HIS VIGILANCE IN PROTECTING THE FINANCIAL INSTITUTIONS OF HIS

  STATE.  THE RECORD FURTHER REVEALS THAT THE TRIAL PARTICIPANTS

  WERE WELL AWARE THAT A FINDING OF CRIMINALITY ON ONE COUNT DID

  NOT AUTHORIZE SIMILAR CONCLUSIONS AS TO OTHER COUNTS, AND I

  BELIEVE THAT THIS SALUTARY PRINCIPLE WAS CONSCIENTIOUSLY

  FOLLOWED.  THEREFORE, I WOULD AFFIRM THE CONVICTIONS ON THE

  SUBSTANTIVE COUNTS."  ID., AT 188-189. 

JOHNSON THUS STANDS AS A UNANIMOUS HOLDING THAT A MEMBER OF CONGRESS
MAY BE PROSECUTED UNDER A CRIMINAL STATUTE PROVIDED THAT THE
GOVERNMENT'S CASE DOES NOT RELY ON LEGISLATIVE ACTS OR THE MOTIVATION
FOR LEGISLATIVE ACTS.  A LEGISLATIVE ACT HAS CONSISTENTLY BEEN DEFINED
AS AN ACT GENERALLY DONE IN CONGRESS IN RELATION TO THE BUSINESS BEFORE
IT.  IN SUM, THE SPEECH OR DEBATE CLAUSE PROHIBITS INQUIRY ONLY INTO
THOSE THINGS GENERALLY SAID OR DONE IN THE HOUSE OR THE SENATE IN THE
PERFORMANCE OF OFFICIAL DUTIES AND INTO THE MOTIVATION FOR THOSE ACTS. 

IT IS WELL KNOWN, OF COURSE, THAT MEMBERS OF THE CONGRESS ENGAGE IN
MANY ACTIVITIES OTHER THAN THE PURELY LEGISLATIVE ACTIVITIES PROTECTED
BY THE SPEECH OR DEBATE CLAUSE.  THESE INCLUDE A WIDE RANGE OF
LEGITIMATE "ERRANDS" PERFORMED FOR CONSTITUENTS, THE MAKING OF
APPOINTMENTS WITH GOVERNMENT AGENCIES, ASSISTANCE IN SECURING
GOVERNMENT CONTRACTS, PREPARING SO-CALLED "NEWS LETTERS" TO
CONSTITUENTS, NEWS RELEASES, AND SPEECHES DELIVERED OUTSIDE THE
CONGRESS.  THE RANGE OF THESE RELATED ACTIVITIES HAS GROWN OVER THE
YEARS.  THEY ARE PERFORMED IN PART BECAUSE THEY HAVE COME TO BE
EXPECTED BY CONSTITUENTS, AND BECAUSE THEY ARE A MEANS OF DEVELOPING
CONTINUING SUPPORT FOR FUTURE ELECTIONS.  ALTHOUGH THESE ARE ENTIRELY
LEGITIMATE ACTIVITIES, THEY ARE POLITICAL IN NATURE RATHER THAN
LEGISLATIVE, IN THE SENSE THAT TERM HAS BEEN USED BY THE COURT IN PRIOR
CASES.  BUT IT HAS NEVER BEEN SERIOUSLY CONTENDED THAT THESE POLITICAL
MATTERS, HOWEVER APPROPRIATE, HAVE THE PROTECTION AFFORDED BY THE
SPEECH OR DEBATE CLAUSE.  CAREFUL EXAMINATION OF THE DECIDED CASES
REVEALS THAT THE COURT HAS REGARDED THE PROTECTION AS REACHING ONLY
THOSE THINGS "GENERALLY DONE IN A SESSION OF THE HOUSE BY ONE OF ITS
MEMBERS IN RELATION TO THE BUSINESS BEFORE IT," KILBOURN V. THOMPSON,
SUPRA, AT 204, OR THINGS "SAID OR DONE BY HIM, AS A REPRESENTATIVE, IN
THE EXERCISE OF THE FUNCTIONS OF THAT OFFICE," COFFIN V. COFFIN, 4
MASS. 1, 27 (1808). 

(B) APPELLEE ARGUES, HOWEVER, THAT IN JOHNSON WE EXPRESSED A BROADER
TEST FOR THE COVERAGE OF THE SPEECH OR DEBATE CLAUSE.  IT IS URGED THAT
WE HELD THAT THE CLAUSE PROTECTED FROM EXECUTIVE OR JUDICIAL INQUIRY
ALL CONDUCT "RELATED TO THE DUE FUNCTIONING OF THE LEGISLATIVE
PROCESS."  IT IS TRUE THAT THE QUOTED WORDS APPEAR IN THE JOHNSON
OPINION, BUT APPELLEE TAKES THEM OUT OF CONTEXT; IN CONTEXT THEY
REFLECT A QUITE DIFFERENT MEANING FROM THAT NOW URGED.  ALTHOUGH THE
INDICTMENT AGAINST JOHNSON CONTAINED EIGHT COUNTS, ONLY ONE COUNT WAS
CHALLENGED BEFORE THIS COURT AS IN VIOLATION OF THE SPEECH OR DEBATE
CLAUSE.  THE OTHER SEVEN COUNTS CONCERNED JOHNSON'S ATTEMPTS TO
INFLUENCE STAFF MEMBERS OF THE JUSTICE DEPARTMENT TO DISMISS PENDING
PROSECUTIONS.  IN EXPLAINING WHY THOSE COUNTS WERE NOT BEFORE THE
COURT, MR. JUSTICE HARLAN WROTE: 

"NO ARGUMENT IS MADE, NOR DO WE THINK THAT IT COULD BE SUCCESSFULLY
CONTENDED, THAT THE SPEECH OR DEBATE CLAUSE REACHES CONDUCT, SUCH AS
WAS INVOLVED IN THE ATTEMPT TO INFLUENCE THE DEPARTMENT OF JUSTICE,
THAT IS IN NO WISE RELATED TO THE DUE FUNCTIONING OF THE LEGISLATIVE
PROCESS.  IT IS THE APPLICATION OF THIS BROAD CONSPIRACY STATUTE TO AN
IMPROPERLY MOTIVATED SPEECH THAT RAISES THE CONSTITUTIONAL PROBLEM WITH
WHICH WE DEAL."  383 U.S.,AT 172.  IN STATING THAT THOSE THINGS "IN NO
WISE RELATED TO THE DUE FUNCTIONING OF THE LEGISLATIVE PROCESS" WERE
NOT COVERED BY THE PRIVILEGE, THE COURT DID NOT IN ANY SENSE IMPLY AS A
COROLLARY THAT EVERYTHING THAT "RELATED" TO THE OFFICE OF A MEMBER WAS
SHIELDED BY THE CLAUSE.  QUITE THE CONTRARY, IN JOHNSON WE HELD, CITING
KILBOURN V. THOMPSON, SUPRA, THAT ONLY ACTS GENERALLY DONE IN THE
COURSE OF THE PROCESS OF ENACTING LEGISLATION WERE PROTECTED. 

NOR CAN WE GIVE KILBOURN A MORE EXPANSIVE INTERPRETATION.  IN CITING
WITH APPROVAL, 103 U.S.,AT 203, THE LANGUAGE OF CHIEF JUSTICE PARSONS
OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS IN COFFIN V. COFFIN, 4
MASS. 1 (1808), THE KILBOURN COURT GAVE NO THOUGHT TO ENLARGING
"LEGISLATIVE ACTS" TO INCLUDE ILLICIT CONDUCT OUTSIDE THE HOUSE.  THE
COFFIN LANGUAGE IS: 

"(THE MASSACHUSETTS LEGISLATIVE PRIVILEGE) OUGHT NOT TO BE CONSTRUED
STRICTLY, BUT LIBERALLY, THAT THE FULL DESIGN OF IT MAY BE ANSWERED.  I
WILL NOT CONFINE IT TO DELIVERING AN OPINION, UTTERING A SPEECH, OR
HARANGUING IN IN DEBATE; BUT WILL EXTEND IT TO THE GIVING OF A VOTE, TO
THE MAKING OF A WRITTEN REPORT, AND TO EVERY OTHER ACT RESULTING FROM
THE NATURE, AND IN THE EXECUTION, OF THE OFFICE:  AND I WOULD DEFINE
THE ARTICLE, AS SECURING TO EVERY MEMBER EXEMPTION FROM PROSECUTION,
FOR EVERY THING SAID OR DONE BY HIM, AS A REPRESENTATIVE, IN THE
EXERCISE OF THE FUNCTIONS OF THAT OFFICE WITHOUT ENQUIRING WHETHER THE
EXERCISE WAS REGULAR ACCORDING TO THE RULES OF THE HOUSE, OR IRREGULAR
AND AGAINST THEIR RULES.  I DO NOT CONFINE THE MEMBER TO HIS PLACE IN
THE HOUSE; AND I AM SATISFIED THAT THERE ARE CASES, IN WHICH HE IS
ENTITLED TO THIS PRIVILEGE, WHEN NOT WITHIN THE WALLS OF THE
REPRESENTATIVES' CHAMBER."  ID., AT 27. 

IT IS SUGGESTED THAT IN CITING THESE WORDS, WHICH WERE ALSO QUOTED
WITH APPROVAL IN TENNEY V. BRANDHOVE, 341 U.S. 367, 373-374 (1951), THE
COURT WAS INTERPRETING THE SWEEP OF THE SPEECH OR DEBATE CLAUSE TO BE
BROADER THAN JOHNSON SEEMED TO INDICATE OR THAN WE TODAY HOLD. 
EMPHASIS IS PLACED ON THE STATEMENT THAT "THERE ARE CASES IN WHICH (A
MEMBER) IS ENTITLED TO THIS PRIVILEGE, WHEN NOT WITHIN THE WALLS OF THE
REPRESENTATIVES' CHAMBER."  BUT THE CONTEXT OF COFFIN V. COFFIN
INDICATES THAT IN THIS PASSAGE CHIEF JUSTICE PARSONS WAS REFERRING ONLY
TO LEGISLATIVE ACTS, SUCH AS COMMITTEE MEETINGS, WHICH TAKE PLACE
OUTSIDE THE PHYSICAL CONFINES OF THE LEGISLATIVE CHAMBER.  IN ANOTHER
PASSAGE, THE MEANING IS CLARIFIED: 

"IF A MEMBER . . . BE OUT OF THE CHAMBER, SITTING IN COMMITTEE,
EXECUTING THE COMMISSION OF THE HOUSE, IT APPEARS TO ME THAT SUCH
MEMBER IS WITHIN THE REASON OF THE ARTICLE, AND OUGHT TO BE CONSIDERED
WITHIN THE PRIVILEGE.  THE BODY OF WHICH HE IS A MEMBER, IS IN SESSION,
AND HE, AS A MEMBER OF THAT BODY, IS IN FACT DISCHARGING THE DUTIES OF
HIS OFFICE.  HE OUGHT THEREFORE TO BE PROTECTED FROM CIVIL OR CRIMINAL
PROSECUTIONS FOR EVERY THING SAID OR DONE BY HIM IN THE EXERCISE OF HIS
FUNCTIONS, AS A REPRESENTATIVE IN COMMITTEE, EITHER IN DEBATING, IN
ASSENTING TO, OR IN DRAUGHTING A REPORT."  /8/  4 MASS.,AT 28. 

IN NO CASE HAS THIS COURT EVER TREATED THE CLAUSE AS PROTECTING ALL
CONDUCT RELATING TO THE LEGISLATIVE PROCESS.  /9/  IN EVERY CASE THUS
FAR BEFORE THIS COURT, THE SPEECH OR DEBATE CLAUSE HAS BEEN LIMITED TO
AN ACT WHICH WAS CLEARLY A PART OF THE LEGISLATIVE PROCESS-- THE DUE
FUNCTIONING OF THE PROCESS.  /10/  APPELLEE'S CONTENTION FOR A BROADER
INTERPRETATION OF THE PRIVILEGE DRAWS ESSENTIALLY ON THE FLAVOR OF THE
RHETORIC AND THE SWEEP OF THE LANGUAGE USED BY COURTS, NOT ON THE
PRECISE WORDS USED IN ANY PRIOR CASE, AND SURELY NOT ON THE SENSE OF
THOSE CASES, FAIRLY READ. 

(C) WE WOULD NOT THINK IT SOUND OR WISE, SIMPLY OUT OF AN ABUNDANCE
OF CAUTION TO DOUBLY INSURE LEGISLATIVE INDEPENDENCE, TO EXTEND THE
PRIVILEGE BEYOND ITS INTENDED SCOPE, ITS LITERAL LANGUAGE, AND ITS
HISTORY, TO INCLUDE ALL THINGS IN ANY WAY RELATED TO THE LEGISLATIVE
PROCESS.  GIVEN SUCH A SWEEPING READING, WE HAVE NO DOUBT THAT THERE
ARE FEW ACTIVITIES IN WHICH A LEGISLATOR ENGAGES THAT HE WOULD BE
UNABLE SOMEHOW TO "RELATE" TO THE LEGISLATIVE PROCESS.  ADMITTEDLY, THE
SPEECH OR DEBATE CLAUSE MUST BE READ BROADLY TO EFFECTUATE ITS PURPOSE
OF PROTECTING THE INDEPENDENCE OF THE LEGISLATIVE BRANCH, BUT NO MORE
THAN THE STATUTES WE APPLY, WAS ITS PURPOSE TO MAKE MEMBERS OF CONGRESS
SUPER-CITIZENS, IMMUNE FROM CRIMINAL RESPONSIBILITY.  IN ITS NARROWEST
SCOPE, THE CLAUSE IS A VERY LARGE, ALBEIT ESSENTIAL, GRANT OF
PRIVILEGE.  IT HAS ENABLED RECKLESS MEN TO SLANDER AND EVEN DESTROY
OTHERS WITH IMPUNITY, BUT THAT WAS THE CONSCIOUS CHOICE OF THE
FRAMERS.  /11/ 

THE HISTORY OF THE PRIVILEGE IS BY NO MEANS FREE FROM GRAVE ABUSES
BY LEGISLATORS.  IN ONE INSTANCE, ABUSES REACHED SUCH A LEVEL IN
ENGLAND THAT PARLIAMENT WAS COMPELLED TO ENACT CURATIVE LEGISLATION. 

     "THE PRACTICE OF GRANTING THE PRIVILEGE OF FREEDOM FROM ARREST

  AND MOLESTATION TO MEMBERS' SERVANTS IN TIME BECAME A SERIOUS

MENACE TO INDIVIDUAL LIBERTY AND TO PUBLIC ORDER, AND A FORM OF

  PROTECTION BY WHICH OFFENDERS OFTEN TRIED-- AND THEY WERE OFTEN

  SUCCESSFUL-- TO ESCAPE THE PENALTIES WHICH THEIR OFFENCES

  DESERVED AND WHICH THE ORDINARY COURTS WOULD NOT HAVE HESITATED

  TO INFLICT.  INDEED, THE SALE OF 'PROTECTIONS' AT ONE TIME PROVED

  A SOURCE OF INCOME TO UNSCRUPULOUS MEMBERS, AND THESE

  PARLIAMENTARY 'INDULGENCES' WERE ON SEVERAL OCCASIONS OBTAINABLE

  AT A FIXED MARKET PRICE."  C. WITTKE, THE HISTORY OF ENGLISH

  PARLIAMENTARY PRIVILEGE 39 (1921). 

THE AUTHORS OF OUR CONSTITUTION WERE WELL AWARE OF THE HISTORY OF BOTH
THE NEED FOR THE PRIVILEGE AND THE ABUSES THAT COULD FLOW FROM TOO
SWEEPING SAFEGUARDS.  IN ORDER TO PRESERVE OTHER VALUES, THEY WROTE THE
PRIVILEGE SO THAT IT TOLERATES AND PROTECTS BEHAVIOR ON THE PART OF
MEMBERS NOT TOLERATED AND PROTECTED WHEN DONE BY OTHER CITIZENS, BUT
THE SHIELD DOES NOT EXTEND BEYOND WHAT IS NECESSARY TO PRESERVE THE
INTEGRITY OF THE LEGISLATIVE PROCESS.  MOREOVER, UNLIKE ENGLAND WITH NO
FORMAL, WRITTEN CONSTITUTIONAL LIMITATIONS ON THE MONARCH, WE DEFINED
LIMITS ON THE CO-ORDINATE BRANCHES, PROVIDING OTHER CHECKS TO PROTECT
AGAINST ABUSES OF THE KIND EXPERIENCED IN THAT COUNTRY. 

IT IS ALSO SUGGESTED THAT, EVEN IF WE INTERPRETED THE CLAUSE BROADLY
SO AS TO EXEMPT FROM INQUIRY ALL MATTERS HAVING ANY RELATIONSHIP TO THE
LEGISLATIVE PROCESS, MISCONDUCT OF MEMBERS WOULD NOT NECESSARILY GO
UNPUNISHED BECAUSE EACH HOUSE IS EMPOWERED TO DISCIPLINE ITS MEMBERS. 
ARTICLE I, SEC. 5, DOES INDEED EMPOWER EACH HOUSE TO "DETERMINE THE
RULES OF ITS PROCEEDINGS, PUNISH ITS MEMBERS FOR DISORDERLY BEHAVIOR,
AND, WITH THE CONCURRENCE OF TWO THIRDS, EXPEL A MEMBER," BUT CONGRESS
IS ILL-EQUIPPED TO INVESTIGATE, TRY, AND PUNISH ITS MEMBERS FOR A WIDE
RANGE OF BEHAVIOR THAT IS LOOSELY AND INCIDENTALLY RELATED TO THE
LEGISLATIVE PROCESS.  IN THIS SENSE, THE ENGLISH ANALOGY ON WHICH THE
DISSENTS PLACE MUCH EMPHASIS, AND THE RELIANCE ON EX PARTE WASON, L.R.
4 Q.B. 573 (1869), ARE INAPT.  PARLIAMENT IS ITSELF "THE HIGH COURT OF
PARLIAMENT"-- THE HIGHEST COURT IN THE LAND-- AND ITS JUDICIAL
TRADITION BETTER EQUIPS IT FOR JUDICIAL TASKS. 

"IT IS BY NO MEANS AN EXAGGERATION TO SAY THAT (THE JUDICIAL
CHARACTERISTICS OF PARLIAMENT) COLORED AND INFLUENCED SOME OF THE GREAT
STRUGGLES OVER (LEGISLATIVE) PRIVILEGE IN AND OUT OF PARLIAMENT TO THE
VERY CLOSE OF THE NINETEENTH CENTURY.  IT IS NOT ALTOGETHER CERTAIN
WHETHER THEY HAVE BEEN ENTIRELY FORGOTTEN EVEN NOW.  NOWHERE HAS THE
THEORY THAT PARLIAMENT IS A COURT-- THE HIGHEST COURT OF THE REALM,
OFTEN ACTING IN A JUDICIAL CAPACITY AND IN A JUDICIAL MANNER--
PERSISTED LONGER THAN IN THE HISTORY OF PRIVILEGE OF PARLIAMENT." 
WITTKE, SUPRA, AT 14.  THE VERY FACT OF THE SUPREMACY OF PARLIAMENT AS
ENGLAND'S HIGHEST TRIBUNAL EXPLAINS THE LONG TRADITION PRECLUDING TRIAL
FOR OFFICIAL MISCONDUCT OF A MEMBER IN ANY OTHER AND LESSER TRIBUNAL. 

IN AUSTRALIA AND CANADA, "WHERE PROVISION FOR LEGISLATIVE FREE
SPEECH OR DEBATE EXISTS BUT WHERE THE LEGISLATURE MAY NOT CLAIM A
TRADITION AS THE HIGHEST COURT OF THE REALM, COURTS HAVE HELD THAT THE
PRIVILEGE DOES NOT BAR THE CRIMINAL PROSECUTION OF LEGISLATORS FOR
BRIBERY."  NOTE, THE BRIBED CONGRESSMAN'S IMMUNITY FROM PROSECUTION, 75
YALE L.J. 335, 338 (1965).  CONGRESS HAS SHOWN LITTLE INCLINATION TO
EXERT ITSELF IN THIS AREA.  /12/  MOREOVER, IF CONGRESS DID LAY ASIDE
ITS NORMAL ACTIVITIES AND TAKE ON ITSELF THE RESPONSIBILITY TO POLICE
AND PROSECUTE THE MYRIAD ACTIVITIES OF ITS MEMBERS RELATED TO BUT NOT
DIRECTLY A PART OF THE LEGISLATIVE FUNCTION, THE INDEPENDENCE OF
INDIVIDUAL MEMBERS MIGHT ACTUALLY BE IMPAIRED.     THE PROCESS OF
DISCIPLINING A MEMBER IN THE CONGRESS IS NOT WITHOUT COUNTERVAILING
RISKS OF ABUSE SINCE IT IS NOT SURROUNDED WITH THE PANOPLY OF
PROTECTIVE SHIELDS THAT ARE PRESENT IN A CRIMINAL CASE.  AN ACCUSED
MEMBER IS JUDGED BY NO SPECIFICALLY ARTICULATED STANDARDS /13/  AND IS
AT THE MERCY OF AN ALMOST UNBRIDLED DISCRETION OF THE CHARGING BODY
THAT FUNCTIONS AT ONCE AS ACCUSER, PROSECUTOR, JUDGE, AND JURY FROM
WHOSE DECISION THERE IS NO ESTABLISHED RIGHT OF REVIEW.  IN SHORT, A
MEMBER WOULD BE COMPELLED TO DEFEND IN WHAT WOULD BE COMPARABLE TO A
CRIMINAL PROSECUTION WITHOUT THE SAFEGUARDS PROVIDED BY THE
CONSTITUTION.  MOREOVER, IT WOULD BE SOMEWHAT NAIVE TO ASSUME THAT THE
TRIERS WOULD BE WHOLLY OBJECTIVE AND FREE FROM CONSIDERATIONS OF PARTY
AND POLITICS AND THE PASSIONS OF THE MOMENT.  /14/  STRONG ARGUMENTS
CAN BE MADE THAT TRIALS CONDUCTED IN A CONGRESS WITH AN ENTRENCHED
MAJORITY FROM ONE POLITICAL PARTY COULD RESULT IN FAR GREATER
HARASSMENT THAN A CONVENTIONAL CRIMINAL TRIAL WITH THE WIDE RANGE OF
PROCEDURAL PROTECTIONS FOR THE ACCUSED, INCLUDING INDICTMENT BY GRAND
JURY, TRIAL BY JURY UNDER STRICT STANDARDS OF PROOF WITH FIXED RULES OF
EVIDENCE, AND EXTENSIVE APPELLATE REVIEW. 

FINALLY, THE JURISDICTION OF CONGRESS TO PUNISH ITS MEMBERS IS NOT
ALL-EMBRACING.  FOR INSTANCE, IT IS UNCLEAR TO WHAT EXTENT CONGRESS
WOULD HAVE JURISDICTION OVER A CASE SUCH AS THIS IN WHICH THE ALLEGED
ILLEGAL ACTIVITY OCCURRED OUTSIDE THE CHAMBER, WHILE THE APPELLEE WAS A
MEMBER, BUT WAS UNDISCOVERED OR NOT BROUGHT BEFORE A GRAND JURY UNTIL
AFTER HE LEFT OFFICE.  /15/ 

THE SWEEPING CLAIMS OF APPELLEE WOULD RENDER MEMBERS OF CONGRESS
VIRTUALLY IMMUNE FROM A WIDE RANGE OF CRIMES SIMPLY BECAUSE THE ACTS IN
QUESTION WERE PERIPHERALLY RELATED TO THEIR HOLDING OFFICE.  SUCH
CLAIMS ARE INCONSISTENT WITH THE READING THIS COURT HAS GIVEN, NOT ONLY
TO THE SPEECH OR DEBATE CLAUSE, BUT ALSO TO THE OTHER LEGISLATIVE
PRIVILEGES EMBODIED IN ART. I, SEC. 6.  THE VERY SENTENCE IN WHICH THE
SPEECH OR DEBATE CLAUSE APPEARS PROVIDES THAT MEMBERS "SHALL IN ALL
CASES, EXCEPT TREASON, FELONY AND BREACH OF THE PEACE, BE PRIVILEGED
FROM ARREST DURING THEIR ATTENDANCE AT THE SESSION OF THEIR RESPECTIVE
HOUSES.  . . . "  IN WILLIAMSON V. UNITED STATES, 207 U.S. 425 (1908),
THIS COURT REJECTED A CLAIM, MADE BY A MEMBER CONVICTED OF SUBORNATION
OF PERJURY IN PROCEEDINGS FOR THE PURCHASE OF PUBLIC LANDS, THAT HE
COULD NOT BE ARRESTED, CONVICTED, OR IMPRISONED FOR ANY CRIME THAT WAS
NOT TREASON, FELONY, OR BREACH OF THE PEACE IN THE MODERN SENSE, I.E.,
DISTURBING THE PEACE.  MR. JUSTICE EDWARD DOUGLASS WHITE NOTED THAT
WHEN THE CONSTITUTION WAS WRITTEN THE TERM "BREACH OF THE PEACE" DID
NOT MEAN, AS IT CAME TO MEAN LATER, A MISDEMEANOR SUCH AS DISORDERLY
CONDUCT BUT HAD A DIFFERENT 18TH CENTURY USAGE, SINCE IT DERIVED FROM
BREACHING THE KING'S PEACE AND THUS EMBRACED THE WHOLE RANGE OF CRIMES
AT COMMON LAW.  QUOTING LORD MANSFIELD, HE NOTED, WITH RESPECT TO THE
CLAIM OF PARLIAMENTARY PRIVILEGE, "(THE LAWS OF THIS COUNTRY ALLOW NO
PLACE OR EMPLOYMENT AS A SANCTUARY FOR CRIME . . . . "  ID., AT 439. 

THE SUBSEQUENT CASE OF LONG V. ANSELL, 293 U.S. 76 (1934), HELD THAT
A MEMBER'S IMMUNITY FROM ARREST IN CIVIL CASES DID NOT EXTEND TO CIVIL
PROCESS.  MR. JUSTICE BRANDEIS WROTE FOR THE COURT: 

"CLAUSE 1 (OF ART. I, SEC. 6) DEFINES THE EXTENT OF THE IMMUNITY. 
ITS LANGUAGE IS EXACT AND LEAVES NO ROOM FOR A CONSTRUCTION WHICH WOULD
EXTEND THE PRIVILEGE BEYOND THE TERMS OF THE GRANT."  ID., AT 82.  WE
RECOGNIZE THAT THE PRIVILEGE AGAINST ARREST IS NOT IDENTICAL WITH THE
SPEECH OR DEBATE PRIVILEGE, BUT IT IS CLOSELY RELATED IN PURPOSE AND
ORIGIN.  IT CAN HARDLY BE THOUGHT THAT THE SPEECH OR DEBATE CLAUSE
TOTALLY PROTECTS WHAT THE SENTENCE PRECEDING IT HAS PLAINLY LEFT OPEN
TO PROSECUTION, I.E., ALL CRIMINAL ACTS. 

(D) MR. JUSTICE WHITE SUGGESTS THAT PERMITTING THE EXECUTIVE TO
INITIATE THE PROSECUTION OF A MEMBER OF CONGRESS FOR THE SPECIFIC CRIME
OF BRIBERY IS SUBJECT TO SERIOUS POTENTIAL ABUSE THAT MIGHT ENDANGER
THE INDEPENDENCE OF THE LEGISLATURE-- FOR EXAMPLE, A CAMPAIGN
CONTRIBUTION MIGHT BE TWISTED BY A RUTHLESS PROSECUTOR INTO A BRIBERY
INDICTMENT.  BUT, AS WE HAVE JUST NOTED, THE EXECUTIVE IS NOT ALONE IN
POSSESSING POWER POTENTIALLY SUBJECT TO ABUSE; SUCH POSSIBILITIES ARE
INHERENT IN A SYSTEM OF GOVERNMENT THAT DELEGATES TO EACH OF THE THREE
BRANCHES SEPARATE AND INDEPENDENT POWERS.  /16/  IN THE FEDERALIST NO.
73, HAMILTON EXPRESSED CONCERN OVER THE POSSIBLE HAZARDS THAT
CONFRONTED AN EXECUTIVE DEPENDENT ON CONGRESS FOR FINANCIAL SUPPORT. 

"THE LEGISLATURE, WITH A DISCRETIONARY POWER OVER THE SALARY AND
EMOLUMENTS OF THE CHIEF MAGISTRATE, COULD RENDER HIM AS OBSEQUIOUS TO
THEIR WILL AS THEY MIGHT THINK PROPER TO MAKE HIM.  THEY MIGHT, IN MOST
CASES, EITHER REDUCE HIM BY FAMINE, OR TEMPT HIM BY LARGESSES, TO
SURRENDER AT DISCRETION HIS JUDGMENT TO THEIR INCLINATIONS."  YET
HAMILTON'S "PARADE OF HORRIBLES" FINDS LITTLE REAL SUPPORT IN HISTORY. 
THE CHECK-AND-BALANCE MECHANISM, BUTTRESSED BY UNFETTERED DEBATE IN AN
OPEN SOCIETY WITH A FREE PRESS, HAS NOT ENCOURAGE ABUSES OF POWER OR
TOLERATED THEM LONG WHEN THEY AROSE.  THIS MAY BE EXPLAINED IN PART
BECAUSE THE THIRD BRANCH HAS INTERVENED WITH NEUTRAL AUTHORITY.  SEE,
E.G., UNITED STATES V. LOVETT, 328 U.S. 303 (1946).  THE SYSTEM OF
DIVIDED POWERS WAS EXPRESSLY DESIGNED TO CHECK THE ABUSES ENGLAND
EXPERIENCED IN THE 16TH TO THE 18TH CENTURIES. 

PROBABLY OF MORE IMPORTANCE IS THE PUBLIC REACTION ENGENDERED BY ANY
ATTEMPT OF ONE BRANCH TO DOMINATE OR HARASS ANOTHER.  EVEN TRADITIONAL
POLITICAL ATTEMPTS TO ESTABLISH DOMINANCE HAVE MET WITH LITTLE SUCCESS
OWING TO CONTRARY POPULAR SENTIMENT.  ATTEMPTS TO "PURGE" UNCOOPERATIVE
LEGISLATORS, FOR EXAMPLE, HAVE NOT BEEN NOTABLY SUCCESSFUL.  WE ARE NOT
CITED TO ANY CASES IN WHICH THE BRIBERY STATUTES, WHICH HAVE BEEN
APPLICABLE TO MEMBERS OF CONGRESS FOR OVER 100 YEARS, /17/  HAVE BEEN
ABUSED BY THE EXECUTIVE BRANCH.  WHEN A POWERFUL EXECUTIVE SOUGHT TO
MAKE THE JUDICIAL BRANCH MORE RESPONSIVE TO THE COMBINED WILL OF THE
EXECUTIVE AND LEGISLATIVE BRANCHES, IT WAS THE CONGRESS ITSELF THAT
CHECKED THE EFFORT TO ENLARGE THE COURT.  2 M.PUSEY, CHARLES EVANS
HUGHES 749-765 (1951). 

WE WOULD BE CLOSING OUR EYES TO THE REALITIES OF THE AMERICAN
POLITICAL SYSTEM IF WE FAILED TO ACKNOWLEDGE THAT MANY NON-LEGISLATIVE
ACTIVITIES ARE AN ESTABLISHED AND ACCEPTED PART OF THE ROLE OF A
MEMBER, AND ARE INDEED "RELATED" TO THE LEGISLATIVE PROCESS.  BUT IF
THE EXECUTIVE MAY PROSECUTE A MEMBER'S ATTEMPT, AS IN JOHNSON, TO
INFLUENCE ANOTHER BRANCH OF THE GOVERNMENT IN RETURN FOR A BRIBE, ITS
POWER TO HARASS IS NOT GREATLY ENHANCED IF IT CAN PROSECUTE FOR A
PROMISE RELATING TO A LEGISLATIVE ACT IN RETURN FOR A BRIBE.  WE
THEREFORE SEE NO SUBSTANTIAL INCREASE IN THE POWER OF THE EXECUTIVE AND
JUDICIAL BRANCHES OVER THE LEGISLATIVE BRANCH RESULTING FROM OUR
HOLDING TODAY.  IF WE UNDERESTIMATE THE POTENTIAL FOR HARASSMENT, THE
CONGRESS, OF COURSE, IS FREE TO EXEMPT ITS MEMBERS FROM THE AMBIT OF
FEDERAL BRIBERY LAWS, BUT IT HAS DELIBERATELY ALLOWED THE INSTANT
STATUTE TO REMAIN ON THE BOOKS FOR OVER A CENTURY. 

WE DO NOT DISCOUNT ENTIRELY THE POSSIBILITY THAT AN ABUSE MIGHT
OCCUR, BUT THIS POSSIBILITY, WHICH WE CONSIDER REMOTE, MUST BE BALANCED
AGAINST THE POTENTIAL DANGER FLOWING FROM EITHER THE ABSENCE OF A
BRIBERY STATUTE APPLICABLE TO MEMBERS OF CONGRESS OR A HOLDING THAT THE
STATUTE VIOLATES THE CONSTITUTION.  AS WE NOTED AT THE OUTSET, THE
PURPOSE OF THE SPEECH OR DEBATE CLAUSE IS TO PROTECT THE INDIVIDUAL
LEGISLATOR, NOT SIMPLY FOR HIS OWN SAKE, BUT TO PRESERVE THE
INDEPENDENCE AND THEREBY THE INTEGRITY OF THE LEGISLATIVE PROCESS.  BUT
FINANCIAL ABUSES BY WAY OF BRIBES, PERHAPS EVEN MORE THAN EXECUTIVE
POWER, WOULD GRAVELY UNDERMINE LEGISLATIVE INTEGRITY AND DEFEAT THE
RIGHT OF THE PUBLIC TO HONEST REPRESENTATION.  DEPRIVING THE EXECUTIVE
OF THE POWER TO INVESTIGATE AND PROSECUTE AND THE JUDICIARY OF THE
POWER TO PUNISH BRIBERY OF MEMBERS OF CONGRESS IS UNLIKELY TO ENHANCE
LEGISLATIVE INDEPENDENCE.  GIVEN THE DISINCLINATION AND LIMITATIONS OF
EACH HOUSE TO POLICE THESE MATTERS, IT IS UNDERSTANDABLE THAT BOTH
HOUSES DELIBERATELY DELEGATED THIS FUNCTION TO THE COURTS, AS THEY DID
WITH THE POWER TO PUNISH PERSONS COMMITTING CONTEMPTS OF CONGRESS.  2
U.S.C. 194. 

IT IS BEYOND DOUBT THAT THE SPEECH OR DEBATE CLAUSE PROTECTS AGAINST
INQUIRY INTO ACTS THAT OCCUR IN THE REGULAR COURSE OF THE LEGISLATIVE
PROCESS AND INTO THE MOTIVATION FOR THOSE ACTS.  SO EXPRESSED, THE
PRIVILEGE IS BROAD ENOUGH TO INSURE THE HISTORIC INDEPENDENCE OF THE
LEGISLATIVE BRANCH, ESSENTIAL TO OUR SEPARATION OF POWERS, BUT NARROW
ENOUGH TO GUARD AGAINST THE EXCESSES OF THOSE WHO WOULD CORRUPT THE
PROCESS BY CORRUPTING ITS MEMBERS.  WE TURN NEXT TO DETERMINE WHETHER
THE SUBJECT OF THIS CRIMINAL INQUIRY IS WITHIN THE SCOPE OF THE
PRIVILEGE. 

        III 

AN EXAMINATION OF THE INDICTMENT BROUGHT AGAINST APPELLEE AND THE
STATUTES ON WHICH IT IS FOUNDED REVEALS THAT NO INQUIRY INTO
LEGISLATIVE ACTS OR MOTIVATION FOR LEGISLATIVE ACTS IS NECESSARY FOR
THE GOVERNMENT TO MAKE OUT A PRIMA FACIE CASE.  FOUR OF THE FIVE COUNTS
CHARGE THAT APPELLEE "CORRUPTLY ASKED, SOLICITED, SOUGHT, ACCEPTED,
RECEIVED AND AGREED TO RECEIVE" MONEY "IN RETURN FOR BEING INFLUENCED .
. . IN RESPECT TO HIS ACTION, VOTE, AND DECISION ON POSTAGE RATE
LEGISLATION WHICH MIGHT AT ANY TIME BE PENDING BEFORE HIM IN HIS
OFFICIAL CAPACITY."  THIS IS SAID TO BE A VIOLATION OF 18 U.S.C.
201(C), WHICH PROVIDES THAT A MEMBER WHO "CORRUPTLY ASKS, DEMANDS,
EXACTS, SOLICITS, SEEKS, ACCEPTS, RECEIVES, OR AGREES TO RECEIVE
ANYTHING OF VALUE . . . IN RETURN FOR . . . (1) BEING INFLUENCED IN HIS
PERFORMANCE OF ANY OFFICIAL ACT" IS GUILTY OF AN OFFENSE. 

THE QUESTION IS WHETHER IT IS NECESSARY TO INQUIRE INTO HOW APPELLEE
SPOKE, HOW HE DEBATED, HOW HE VOTED, OR ANYTHING HE DID IN THE CHAMBER
OR IN COMMITTEE IN ORDER TO MAKE OUT A VIOLATION OF THIS STATUTE.  THE
ILLEGAL CONDUCT IS TAKING OR AGREEING TO TAKE MONEY FOR A PROMISE TO
ACT IN A CERTAIN WAY.  THERE IS NO NEED FOR THE GOVERNMENT TO SHOW THAT
APPELLEE FULFILLED THE ALLEGED ILLEGAL BARGAIN; ACCEPTANCE OF THE BRIBE
IS THE VIOLATION OF THE STATUTE, NOT PERFORMANCE OF THE ILLEGAL
PROMISE. 

TAKING A BRIBE IS, OBVIOUSLY, NO PART OF THE LEGISLATIVE PROCESS OR
FUNCTION; IT IS NOT A LEGISLATIVE ACT.  IT IS NOT, BY ANY CONCEIVABLE
INTERPRETATION, AN ACT PERFORMED AS A PART OF OR EVEN INCIDENTAL TO THE
ROLE OF A LEGISLATOR.  IT IS NOT AN "ACT RESULTING FROM THE NATURE, AND
IN THE EXECUTION, OF THE OFFICE."  NOR IS IT A "THING SAID OR DONE BY
HIM, AS A REPRESENTATIVE, IN THE EXERCISE OF THE FUNCTIONS OF THAT
OFFICE," 4 MASS.,AT 27.  NOR IS INQUIRY INTO A LEGISLATIVE ACT OR THE
MOTIVATION FOR A LEGISLATIVE ACT NECESSARY TO A PROSECUTION UNDER THIS
STATUTE OR THIS INDICTMENT.  WHEN A BRIBE IS TAKEN, IT DOES NOT MATTER
WHETHER THE PROMISE FOR WHICH THE BRIBE WAS GIVEN WAS FOR THE
PERFORMANCE OF A LEGISLATIVE ACT AS HERE OR, AS IN JOHNSON, FOR USE OF
A CONGRESSMAN'S INFLUENCE WITH THE EXECUTIVE BRANCH.  AND AN INQUIRY
INTO THE PURPOSE OF A BRIBE "DOES NOT DRAW IN QUESTION THE LEGISLATIVE
ACTS OF THE DEFENDANT MEMBER OF CONGRESS OR HIS MOTIVES FOR PERFORMING
THEM."  383 U.S.,AT 185. 

NOR DOES IT MATTER IF THE MEMBER DEFAULTS ON HIS ILLEGAL BARGAIN. 
TO MAKE A PRIMA FACIE CASE UNDER THIS INDICTMENT, THE GOVERNMENT NEED
NOT SHOW ANY ACT OF APPELLEE SUBSEQUENT TO THE CORRUPT PROMISE FOR
PAYMENT, FOR IT IS TAKING THE BRIBE, NOT PERFORMANCE OF THE ILLICIT
COMPACT, THAT IS A CRIMINAL ACT.  IF, FOR EXAMPLE, THERE WERE
UNDISPUTED EVIDENCE THAT A MEMBER TOOK A BRIBE IN EXCHANGE FOR AN
AGREEMENT TO VOTE FOR A GIVEN BILL AND IF THERE WERE ALSO UNDISPUTED
EVIDENCE THAT HE, IN FACT, VOTED AGAINST THE BILL, CAN IT BE THOUGHT
THAT THIS ALTERS THE NATURE OF THE BRIBERY OR REMOVES IT FROM THE AREA
OF WRONGDOING THE CONGRESS SOUGHT TO MAKE A CRIME? 

ANOTHER COUNT OF THE INDICTMENT AGAINST APPELLEE ALLEGES THAT HE
"ASKED, DEMANDED, EXACTED, SOLICITED, SOUGHT, ACCEPTED, RECEIVED AND
AGREED TO RECEIVE" MONEY "FOR AND BECAUSE OF OFFICIAL ACTS PERFORMED BY
HIM IN RESPECT TO HIS ACTION, VOTE AND DECISION ON POSTAGE RATE
LEGISLATION WHICH HAD BEEN PENDING BEFORE HIM IN HIS OFFICIAL CAPACITY
. . . . "  THIS COUNT IS FOUNDED ON 18 U.S.C. 201(G), WHICH PROVIDES
THAT A MEMBER OF CONGRESS WHO "ASKS, DEMANDS, EXACTS, SOLICITS, SEEKS,
ACCEPTS, RECEIVES, OR AGREES TO RECEIVE ANYTHING OF VALUE FOR HIMSELF
FOR OR BECAUSE OF ANY OFFICIAL ACT PERFORMED OR TO BE PERFORMED BY HIM"
IS GUILTY OF AN OFFENSE.  ALTHOUGH THE INDICTMENT ALLEGES THAT THE
BRIBE WAS GIVEN FOR AN ACT THAT WAS ACTUALLY PERFORMED, IT IS, ONCE
AGAIN, UNNECESSARY TO INQUIRE INTO THE ACT OR ITS MOTIVATION.  TO
SUSTAIN A CONVICTION IS IS NECESSARY TO SHOW THAT APPELLEE SOLICITED,
RECEIVED, OR AGREED TO RECEIVE, MONEY WITH KNOWLEDGE THAT THE DONOR WAS
PAYING HIM COMPENSATION FOR AN OFFICIAL ACT.  INQUIRY INTO THE
LEGISLATIVE PERFORMANCE ITSELF IS NOT NECESSARY; EVIDENCE OF THE
MEMBER'S KNOWLEDGE OF THE ALLEGED BRIBER'S ILLICIT REASONS FOR PAYING
THE MONEY IS SUFFICIENT TO CARRY THE CASE TO THE JURY. 

MR. JUSTICE WHITE RESTS HEAVILY ON THE FACT THAT THE INDICTMENT
CHARGES THE OFFENSE AS BEING IN PART LINKED TO BREWSTER'S "ACTION, VOTE
AND DECISION ON POSTAGE RATE LEGISLATION."  THIS IS TRUE, OF COURSE,
BUT OUR HOLDING IN JOHNSON PRECLUDES ANY SHOWING OF HOW HE ACTED,
VOTED, OR DECIDED.  THE DISSENTING POSITION STANDS ON THE FRAGILE
PROPOSITION THAT IT "WOULD TAKE THE GOVERNMENT AT ITS WORD" WITH
RESPECT TO WANTING TO PROVE WHAT WE ALL AGREE ARE PROTECTED ACTS THAT
CANNOT BE SHOWN IN EVIDENCE.  PERHAPS THE GOVERNMENT WOULD MAKE A MORE
APPEALING CASE IF IT COULD DO SO, BUT HERE, AS IN THAT CASE, EVIDENCE
OF ACTS PROTECTED BY THE CLAUSE IS INADMISSIBLE.  THE GOVERNMENT, AS WE
HAVE NOTED, NEED NOT PROVE ANY SPECIFIC ACT, SPEECH, DEBATE, OR
DECISION TO ESTABLISH A VIOLATION OF THE STATUTE UNDER WHICH APPELLEE
WAS INDICTED.  TO ACCEPT THE ARGUMENTS OF THE DISSENT WOULD BE TO
RETREAT FROM THE COURT'S POSITION IN JOHNSON THAT A MEMBER MAY BE
CONVICTED IF NO SHOWING OF LEGISLATIVE ACT IS REQUIRED. 

MR. JUSTICE BRENNAN SUGGESTS THAT INQUIRY INTO THE ALLEGED BRIBE IS
INQUIRY INTO THE MOTIVATION FOR A LEGISLATIVE ACT, AND IT IS URGED THAT
THIS VERY INQUIRY WAS CONDEMNED AS IMPERMISSIBLE IN JOHNSON.  THAT
ARGUMENT MISCONSTRUES THE CONCEPT OF MOTIVATION FOR LEGISLATIVE ACTS. 
THE SPEECH OR DEBATE CLAUSE DOES NOT PROHIBIT INQUIRY INTO ILLEGAL
CONDUCT SIMPLY BECAUSE IT HAS SOME NEXUS TO LEGISLATIVE FUNCTIONS.  IN
JOHNSON, THE COURT HELD THAT, ON REMAND, JOHNSON COULD BE RETRIED ON
THE CONSPIRACY-TO-DEFRAUD COUNT, SO LONG AS EVIDENCE CONCERNING HIS
SPEECH ON THE HOUSE FLOOR WAS NOT ADMITTED.  THE COURT'S OPINION
PLAINLY IMPLIES THAT HAD THE GOVERNMENT CHOSEN TO RETRY JOHNSON ON THAT
COUNT, HE COULD NOT HAVE OBTAINED IMMUNITY FROM PROSECUTION BY
ASSERTING THAT THE MATTER BEING INQUIRED INTO WAS RELATED TO THE
MOTIVATION FOR HIS HOUSE SPEECH.  SEE N. 7, SUPRA. 

THE ONLY REASONABLE READING OF THE CLAUSE, CONSISTENT WITH ITS
HISTORY AND PURPOSE, IS THAT IT DOES NOT PROHIBIT INQUIRY INTO
ACTIVITIES THAT ARE CASUALLY OR INCIDENTALLY RELATED TO LEGISLATIVE
AFFAIRS BUT NOT A PART OF THE LEGISLATIVE PROCESS ITSELF.  UNDER THIS
INDICTMENT AND THESE STATUTES NO SUCH PROOF IS NEEDED. 

WE HOLD THAT UNDER THESE STATUTES AND THIS INDICTMENT, PROSECUTION
OF APPELLEE IS NOT PROHIBITED BY THE SPEECH OR DEBATE CLAUSE.  /18/
ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  THE REMAINING FIVE COUNTS CHARGED THE ALLEGED BRIBERS WITH
OFFERING AND GIVING BRIBES IN VIOLATION OF 18 U.S.C. 201(B). 

/2/  TITLE 18 U.S.C. 201(C) PROVIDES:  "WHOEVER, BEING A PUBLIC
OFFICIAL OR PERSON SELECTED TO BE A PUBLIC OFFICIAL, DIRECTLY OR
INDIRECTLY, CORRUPTLY ASKS, DEMANDS, EXACTS, SOLICITS, SEEKS, ACCEPTS,
RECEIVES, OR AGREES TO RECEIVE ANYTHING OF VALUE FOR HIMSELF OR FOR ANY
OTHER PERSON OR ENTITY, IN RETURN FOR: 

"(1) BEING INFLUENCED IN HIS PERFORMANCE OF ANY OFFICIAL ACT . . .
(SHALL BE GUILTY OF AN OFFENSE)." 

TITLE 18 U.S.C. 201(A) DEFINES "PUBLIC OFFICIAL" TO INCLUDE "MEMBER
OF CONGRESS."  THE SAME SUBSECTION PROVIDES:  "'OFFICIAL ACT' MEANS ANY
DECISION OR ACTION ON ANY QUESTION, MATTER, CAUSE, SUIT, PROCEEDING OR
CONTROVERSY, WHICH MAY AT ANY TIME BE PENDING, OR WHICH MAY BY LAW BE
BROUGHT BEFORE ANY PUBLIC OFFICIAL, IN HIS OFFICIAL CAPACITY, OR IN HIS
PLACE OF TRUST OR PROFIT."  TITLE 18 U.S.C. 2 IS THE AIDING OR ABETTING
STATUTE. 

/3/  TITLE 18 U.S.C. 201(G) PROVIDES:  "WHOEVER, BEING A PUBLIC
OFFICIAL, FORMER PUBLIC OFFICIAL, OR PERSON SELECTED TO BE A PUBLIC
OFFICIAL, OTHERWISE THAN AS PROVIDED BY LAW FOR THE PROPER DISCHARGE OF
OFFICIAL DUTY, DIRECTLY OR INDIRECTLY ASKS, DEMANDS, EXACTS, SOLICITS,
SEEKS, ACCEPTS, RECEIVES, OR AGREES TO RECEIVE ANYTHING OF VALUE FOR
HIMSELF FOR OR BECAUSE OF ANY OFFICIAL ACT PERFORMED OR TO BE PERFORMED
BY HIM . . . (SHALL BE GUILTY OF AN OFFENSE)." 

/4/  TITLE 18 U.S.C. 3731 PROVIDED IN RELEVANT PART: 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED STATES IN
ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES: 

"FROM A DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING ANY
INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF, WHERE SUCH DECISION OR
JUDGMENT IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED. 

        .          .       .          . 

"FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY." 

THE STATUTE HAS SINCE BEEN AMENDED TO ELIMINATE THE DIRECT APPEAL
PROVISION ON WHICH THE UNITED STATES RELIES.  18 U.S.C. 3731.  THIS
APPEAL, HOWEVER, WAS PERFECTED UNDER THE OLD STATUTE. 

/5/  CELLA, THE DOCTRINE OF LEGISLATIVE PRIVILEGE OF FREEDOM OF
SPEECH AND DEBATE:  ITS PAST, PRESENT AND FUTURE AS A BAR TO CRIMINAL
PROSECUTIONS IN THE COURTS, 2 SUFFOLK L.REV.  1, 15 (1968); NOTE, THE
BRIBED CONGRESSMAN'S IMMUNITY FROM PROSECUTION, 75 YALE L.J. 335, 337
338 (1965). 

/6/  SEE C. WITTKE, THE HISTORY OF ENGLISH PARLIAMENTARY PRIVILEGE
23-32 (1921). 

/7/  ON REMAND, THE DISTRICT COURT DISMISSED THE CONSPIRACY COUNT
WITHOUT OBJECTION FROM THE GOVERNMENT.  JOHNSON WAS THEN FOUND GUILTY
ON THE REMAINING COUNTS, AND HIS CONVICTION WAS AFFIRMED.  UNITED
STATES V. JOHNSON, 419 F.2D 56 (CA4 1969), CERT. DENIED, 397 U.S. 1010
(1970). 

/8/  IT IS ESPECIALLY IMPORTANT TO NOTE THAT IN COFFIN V. COFFIN,
THE COURT CONCLUDED THAT THE DEFENDANT WAS NOT EXECUTING THE DUTIES OF
HIS OFFICE WHEN HE ALLEGEDLY DEFAMED THE PLAINTIFF AND WAS HENCE NOT
ENTITLED TO THE CLAIM OF PRIVILEGE. 

/9/  THE "CONCESSION" MR. JUSTICE BRENNAN SEEKS TO ATTRIBUTE TO THE
GOVERNMENT LAWYER WHO ARGUED THE CASE IN THE DISTRICT COURT REVEALS NO
MORE THAN THE FAILURE OF THE ARGUMENTS IN THAT COURT TO FOCUS ON THE
DISTINCTION BETWEEN TRUE LEGISLATIVE ACTS AND THE MYRIAD RELATED
POLITICAL FUNCTIONS OF A MEMBER OF CONGRESS.  THE "CONCESSION" CAME IN
RESPONSE TO A QUESTION CLEARLY REVEALING THAT THE DISTRICT COURT
TREATED AS PROTECTED ALL ACTS "RELATED" TO THE OFFICE RATHER THAN
LIMITING THE PROTECTION TO WHAT IS "SAID OR DONE BY HIM, AS A
REPRESENTATIVE, IN THE EXERCISE OF THE FUNCTIONS OF THAT OFFICE." 

/10/  SEE KILBOURN V. THOMPSON, 103 U.S. 168 (1881) (VOTING FOR A
RESOLUTION); TENNEY V. BRANDHOVE, 341 U.S. 367 (1951) (HARASSMENT OF
WITNESS BY STATE LEGISLATOR DURING A LEGISLATIVE HEARING; NOT A SPEECH
OR DEBATE CLAUSE CASE); UNITED STATES V. JOHNSON, 383 U.S. 169 (1966)
(MAKING A SPEECH ON HOUSE FLOOR); DOMBROWSKI V. EASTLAND, 387 U.S. 82
(1967) (SUBPOENAING RECORDS FOR COMMITTEE HEARING); POWELL V.
MCCORMACK, 395 U.S. 486 (1969) (VOTING FOR A RESOLUTION). 

IN COFFIN V. COFFIN, 4 MASS. 1 (1808), THE STATE EQUIVALENT OF THE
SPEECH OR DEBATE CLAUSE WAS HELD TO BE INAPPLICABLE TO A LEGISLATOR WHO
WAS ACTING OUTSIDE OF HIS OFFICIAL DUTIES. 

/11/  "TO THIS CONSTRUCTION OF THE ARTICLE IT IS OBJECTED, THAT A
PRIVATE CITIZEN MAY HAVE HIS CHARACTER BASELY DEFAMED, WITHOUT ANY
PECUNIARY RECOMPENSE OR SATISFACTION.  THE TRUTH OF THE OBJECTION IS
ADMITTED.  . . . THE INJURY TO THE REPUTATION OF A PRIVATE CITIZEN IS
OF LESS IMPORTANCE TO THE COMMONWEALTH, THAN THE FREE AND UNRESERVED
EXERCISE OF THE DUTIES OF A REPRESENTATIVE, UNAWED BY THE FEAR OF LEGAL
PROSECTUIONS."  COFFIN V. COFFIN, 4 MASS.,AT 28. 

SEE COCHRAN V. COUZENS, 59 APP.D.C. 374, 42 F.2D 783, CERT. DENIED,
282 U.S. 874 (1930) (DEFAMATORY WORDS UTTERED ON SENATE FLOOR COULD NOT
BE BASIS OF SLANDER ACTION). 

/12/  SEE THOMAS, FREEDOM OF DEBATE:  PROTECTOR OF THE PEOPLE OR
HAVEN FOR THE CRIMINAL?, 3 THE HARVARD REV. 74, 80-81 (NO. 3, 1965);
NOTE, THE BRIBED CONGRESSMAN'S IMMUNITY FROM PROSECUTION, 75 YALE L.J.
335, 349 N. 84 (1965); OPPENHEIM, CONGRESSIONAL FREE SPEECH, 8 LOYOLA
L.REV.  1, 27-28 (1955-1956). 

/13/  SEE, E.G., IN RE CHAPMAN, 166 U.S. 661, 669-670 (1897): 

"THE RIGHT TO EXPEL EXTENDS TO ALL CASES WHERE THE OFFENCE IS SUCH
AS IN THE JUDGMENT OF THE SENATE IS INCONSISTENT WITH THE TRUST AND
DUTY OF A MEMBER." 

/14/  SEE THE ACCOUNT OF THE IMPEACHMENT OF PRESIDENT ANDREW JOHNSON
IN J. KENNEDY, PROFILES IN COURAGE 126-151 (1955).  SEE ALSO THE
ACCOUNT OF THE IMPEACHMENT OF MR. JUSTICE SAMUEL CHASE IN 3
A.BEVERIDGE, THE LIFE OF JOHN MARSHALL 169-220 (1919). 

/15/  " . . . ENGLISH PARLIAMENTS HAVE HISTORICALLY RESERVED TO
THEMSELVES AND STILL RETAIN THE SOLE AND EXCLUSIVE RIGHT TO PUNISH
THEIR MEMBERS FOR THE ACCEPTANCE OF A BRIBE IN THE DISCHARGE OF THEIR
OFFICE.  NO MEMBER OF PARLIAMENT MAY BE TRIED FOR SUCH AN OFFENSE IN
ANY COURT OF THE LAND."  CELLA, SUPRA, N. 5, AT 15-16.  THAT THIS IS
OBVIOUSLY NOT THE CASE IN THIS COUNTRY IS IMPLICIT IN THE REMAND OF
REPRESENTATIVE JOHNSON TO BE RETRIED ON BRIBERY CHARGES. 

/16/  THE POTENTIAL FOR HARASSMENT BY AN UNSCRUPULOUS MEMBER OF THE
EXECUTIVE BRANCH MAY EXIST, BUT THIS COUNTRY HAS NO TRADITION OF
ABSOLUTE CONGRESSIONAL IMMUNITY FROM CRIMINAL PROSECUTION.  SEE UNITED
STATES V. QUINN, 141 F.SUPP.  622 (SDNY 1956) (MOTION FOR ACQUITTAL
GRANTED BECAUSE THE DEFENDANT MEMBER OF CONGRESS WAS UNAWARE OF RECEIPT
OF FEES BY HIS LAW FIRM); BURTON V. UNITED STATES, 202 U.S. 344 (1906)
(SENATOR CONVICTED FOR ACCEPTING COMPENSATION TO INTERVENE BEFORE POST
OFFICE DEPARTMENT); UNITED STATES V. DIETRICH, 126 F. 671 (CC NEB.
1904) (SENATOR-ELECT'S ACCEPTING PAYMENT TO PROCURE OFFICE FOR ANOTHER
NOT COVERED BY STATUTE); MAY V. UNITED STATES, 84 U.S.APP.D.C. 233, 175
F.2D 994, CERT. DENIED, 338 U.S. 830 (1949) (CONGRESSMAN CONVICTED OF
RECEIVING COMPENSATION FOR SERVICES BEFORE AN AGENCY); UNITED STATES V.
BRAMBLETT, 348 U.S. 503 (1955) (CONGRESSMAN CONVICTED OF DEFRAUDING
GOVERNMENT AGENCY).  BRAMBLETT CONCERNED A CONGRESSMAN'S MISUSE OF
OFFICE FUNDS VIA A "KICK-BACK" SCHEME, WHICH IS SURELY "RELATED" TO THE
LEGISLATIVE OFFICE. 

A STRATEGICALLY TIMED INDICTMENT COULD INDEED CAUSE SERIOUS HARM TO
A CONGRESSMAN.  REPRESENTATIVE JOHNSON, FOR EXAMPLE, WAS INDICTED WHILE
CAMPAIGNING FOR RE-ELECTION, AND ARGUABLY HIS INDICTMENT CONTRIBUTED TO
HIS DEFEAT.  ON THE OTHER HAND, THERE IS THE CLASSIC CASE OF MAYOR
CURLEY WHO WAS RE-ELECTED WHILE UNDER INDICTMENT.  SEE N.Y. TIMES, NOV.
8, 1945, P. 12, COL. 5; 4 NEW CATHOLIC ENCYCLOPEDIA 541 (1967). 
MOREOVER, WE SHOULD NOT OVERLOOK THE BARRIERS A PROSECUTOR, ATTEMPTING
TO BRING SUCH A CASE, MUST FACE.  FIRST, HE MUST PERSUADE A GRAND JURY
TO INDICT, AND WE ARE NOT PREPARED TO ASSUME THAT GRAND JURIES WILL ACT
AGAINST A MEMBER WITHOUT SOLID EVIDENCE.  THEREAFTER, HE MUST CONVINCE
A PETIT JURY BEYOND A REASONABLE DOUBT, WITH THE PRESUMPTION OF
INNOCENCE FAVORING THE ACCUSED.  A PROSECUTOR WHO FAILS TO CLEAR ONE OF
THESE HURDLES FACES SERIOUS PRACTICAL CONSEQUENCES WHEN THE DEFENDANT
IS A CONGRESSMAN.  THE LEGISLATIVE BRANCH IS NOT WITHOUT WEAPONS OF ITS
OWN AND WOULD NO DOUBT USE THEM IF IT THOUGHT THE EXECUTIVE WERE
UNJUSTLY HARASSING ONE OF ITS MEMBERS.  PERHAPS MORE IMPORTANT IS THE
OMNIPRESENCE OF THE NEWS MEDIA WHOSE TRADITIONAL FUNCTION AND
COMPETITIVE INCLINATION AFFORD NO IMMUNITIES TO RECKLESS OR
IRRESPONSIBLE OFFICIAL MISCONDUCT. 

/17/  THE FIRST BRIBERY STATUTE APPLICABLE TO CONGRESSMAN WAS
ENACTED IN 1853.  ACT OF FEB. 26, 1853, C. 81, SEC. 6, 10 STAT. 171. 

/18/  IN REVERSING THE DISTRICT COURT'S RULING THAT A MEMBER OF
CONGRESS MAY NOT BE CONSTITUTIONALLY TRIED FOR A VIOLATION OF THE
FEDERAL BRIBERY STATUTES, WE EXPRESS NO VIEWS ON THE QUESTION LEFT OPEN
IN JOHNSON AS TO THE CONSTITUTIONALITY OF AN INQUIRY THAT PROBES INTO
LEGISLATIVE ACTS OR THE MOTIVATION FOR LEGISLATIVE ACTS IF CONGRESS
SPECIFICALLY AUTHORIZES SUCH IN A NARROWLY DRAWN STATUTE.  SHOULD SUCH
AN INQUIRY BE MADE AND SHOULD A CONVICTION BE SUSTAINED, THEN WE WOULD
FACE THE QUESTION WHETHER INQUIRY INTO LEGISLATIVE ACTS AND MOTIVATION
IS PERMISSIBLE UNDER SUCH A NARROWLY DRAWN STATUTE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

WHEN THIS CASE FIRST CAME BEFORE THE COURT, I HAD THOUGHT IT
PRESENTED A SINGLE, WELL-DEFINED ISSUE-- THAT IS, WHETHER THE CONGRESS
COULD AUTHORIZE BY A NARROWLY DRAWN STATUTE THE PROSECUTION OF A
SENATOR OR REPRESENTATIVE FOR CONDUCT OTHERWISE IMMUNE FROM PROSECUTION
UNDER THE SPEECH OR DEBATE CLAUSE OF THE CONSTITUTION.  COUNTS 1, 3, 5,
AND 7 OF THE INDICTMENT CHARGED SENATOR BREWSTER WITH RECEIVING $19,000
"IN RETURN FOR BEING INFLUENCED IN HIS PERFORMANCE OF OFFICIAL ACTS IN
RESPECT TO HIS ACTION, VOTE, AND DECISION ON POSTAGE RATE LEGISLATION
WHICH MIGHT AT ANY TIME BE PENDING BEFORE HIM IN HIS OFFICIAL CAPACITY
(AS A MEMBER OF THE SENATE POST OFFICE COMMITTEE)."  COUNT 9 CHARGED
THE SENATOR WITH RECEIPT OF ANOTHER $5,000 FOR ACTS ALREADY PERFORMED
BY HIM WITH RESPECT TO HIS "ACTION, VOTE AND DECISION" ON THAT
LEGISLATION.  THESE CHARGES, IT SEEMED TO ME, FELL WITHIN THE CLEAR
PROHIBITION OF THE SPEECH OR DEBATE CLAUSE AS INTERPRETED BY DECISIONS
OF THIS COURT, PARTICULARLY UNITED STATES V. JOHNSON, 383 U.S. 169
(1966).  FOR IF THE INDICTMENT DID NOT CALL INTO QUESTION THE "SPEECHES
OR DEBATES" OF THE SENATOR, IT CERTAINLY LAID OPEN TO SCRUTINY THE
MOTIVES FOR HIS LEGISLATIVE ACTS; AND THOSE MOTIVES, I HAD SUPPOSED,
WERE NO MORE SUBJECT TO EXECUTIVE AND JUDICIAL INQUIRY THAN THE ACTS
THEMSELVES, UNLESS, OF COURSE, THE CONGRESS COULD DELEGATE SUCH INQUIRY
TO THE OTHER BRANCHES. 

THAT, APPARENTLY, WAS THE GOVERNMENT'S VIEW OF THE CASE AS WELL.  AT
THE HEARING BEFORE THE DISTRICT COURT THE PROSECUTOR WAS ASKED POINT
BLANK WHETHER "THE INDICTMENT IN ANY WISE ALLEGED) THAT BREWSTER DID
ANYTHING NOT RELATED TO HIS PURELY LEGISLATIVE FUNCTIONS."  THE
PROSECUTOR RESPONDED: 

     "WE ARE NOT CONTENDING THAT WHAT IS BEING CHARGED HERE, THAT

  IS, THE ACTIVITY BY BREWSTER, WAS ANYTHING OTHER THAN A

  LEGISLATIVE ACT.  WE ARE NOT DUCKING THE QUESTION; IT IS SQUARELY

  PRESENTED.  THEY ARE LEGISLATIVE ACTS.  WE ARE NOT GOING TO

  QUIBBLE OVER THAT."  APP. 28. 

THE GOVERNMENT, IN OTHER WORDS, DID NOT CHALLENGE THE APPLICABILITY OF
THE CLAUSE TO THESE CHARGES, BUT ARGUED ONLY THAT ITS PROHIBITIONS
COULD BE AVOIDED, "WAIVED" AS IT WERE, THROUGH CONGRESSIONAL
AUTHORIZATION IN THE FORM OF A NARROWLY DRAWN BRIBERY STATUTE.  THE
DISTRICT COURT ACCEPTED THE GOVERNMENT'S READING OF THE INDICTMENT AND
HELD THAT THE SENATOR COULD NOT BE PROSECUTED FOR THIS CONDUCT EVEN
UNDER THE ALLEGEDLY NARROW PROVISIONS OF 18 U.S.C. 201: 

     "GENTLEMEN, BASED ON THE FACTS OF THIS CASE, IT IS ADMITTED BY

  THE GOVERNMENT THAT THE FIVE COUNTS OF THE INDICTMENT WHICH

  CHARGE SENATOR BREWSTER RELATE TO THE ACCEPTANCE OF BRIBES IN

  CONNECTION WITH THE PERFORMANCE OF A LEGISLATIVE FUNCTION BY A

  SENATOR OF THE UNITED STATES. 

     "IT IS THE OPINION OF THIS COURT THAT THE IMMUNITY UNDER THE

  SPEECH AND DEBATE CLAUSE OF THE CONSTITUTION, PARTICULARLY IN

  VIEW OF THE INTERPRETATION GIVEN THAT CLAUSE BY THE SUPREME COURT

  IN JOHNSON, SHIELDS SENATOR BREWSTER, CONSTITUTIONALLY SHIELDS

  HIM FROM ANY PROSECUTION FOR ALLEGED BRIBERY TO PERFORM A

  LEGISLATIVE ACT."  APP. 33. 

FURTHERMORE, THE GOVERNMENT'S INITIAL BRIEF IN THIS COURT, DOUBTLESS
REFLECTING ITS RECOGNITION THAT JOHNSON HAD REJECTED THE ANALYSIS
ADOPTED BY THE COURT TODAY, DID NOT ARGUE THAT A PROSECUTION FOR
ACCEPTANCE OF A BRIBE IN RETURN FOR A PROMISE TO VOTE A CERTAIN WAY
FALLS OUTSIDE THE PROHIBITION OF THE SPEECH OR DEBATE CLAUSE.  RATHER,
THE GOVERNMENT'S BRIEF CONCEDED OR AT LEAST ASSUMED THAT SUCH CONDUCT
DOES CONSTITUTE "SPEECH OR DEBATE," BUT URGED THAT CONGRESS MAY ENACT A
STATUTE, SUCH AS 18 U.S.C. 201, PROVIDING FOR JUDICIAL TRIAL OF THE
ALLEGED CRIME. 

GIVEN THESE ADMISSIONS BY THE GOVERNMENT AND THE DISTRICT COURT'S
CONSTRUCTION OF THE INDICTMENT, WHICH SETTLED DOCTRINE MAKES BINDING ON
THIS COURT, UNITED STATES V. JONES, 345 U.S. 377, 378 (1953), THE ONLY
ISSUE PROPERLY BEFORE US WAS WHETHER CONGRESS IS EMPOWERED TO DELEGATE
TO THE EXECUTIVE AND JUDICIAL BRANCHES THE TRIAL OF A MEMBER FOR
CONDUCT OTHERWISE PROTECTED BY THE CLAUSE.  TODAY, HOWEVER, THE COURT
FINDS IT UNNECESSARY TO REACH THAT ISSUE, FOR IT FINDS THAT THE
INDICTMENT, THOUGH CHARGING RECEIPT OF A BRIBE FOR LEGISLATIVE ACTS,
ENTAILS "NO INQUIRY INTO LEGISLATIVE ACTS OR MOTIVATION FOR LEGISLATIVE
ACTS," ANTE, AT 525, AND THUS IS NOT COVERED BY THE CLAUSE.  IN DOING
SO THE COURT PERMITS THE GOVERNMENT TO RECEDE FROM ITS FIRM ADMISSIONS,
IT IGNORES THE DISTRICT COURT'S BINDING CONSTRUCTION OF THE INDICTMENT,
AND-- MOST IMPORTANT-- IT REPUDIATES PRINCIPLES OF LEGISLATIVE FREEDOM
DEVELOPED OVER THE PAST CENTURY IN A LINE OF CASES CULMINATING IN
JOHNSON.  THOSE PRINCIPLES, WHICH ARE VITAL TO THE RIGHT OF THE PEOPLE
TO BE REPRESENTED BY CONGRESSMEN OF INDEPENDENCE AND INTEGRITY, DESERVE
MORE THAN THE HASTY BURIAL GIVEN THEM BY THE COURT TODAY.  I MUST
THEREFORE DISSENT. 

        I 

I WOULD DISPEL AT THE OUTSET ANY NOTION THAT SENATOR BREWSTER'S
ASSERTED IMMUNITY STRAINS THE OUTER LIMITS OF THE CLAUSE.  THE COURT
WRITES AT LENGTH IN AN EFFORT TO SHOW THAT "SPEECH OR DEBATE" DOES NOT
COVER "ALL CONDUCT RELATING TO THE LEGISLATIVE PROCESS."  ANTE, AT
515.  EVEN ASSUMING THE VALIDITY OF THAT CONCLUSION, I FAIL TO SEE ITS
RELEVANCE TO THE INSTANT CASE.  SENATOR BREWSTER IS NOT CHARGED WITH
CONDUCT MERELY "RELATING TO THE LEGISLATIVE PROCESS," BUT WITH A CRIME
WHOSE PROOF CALLS INTO QUESTION THE VERY MOTIVES BEHIND HIS LEGISLATIVE
ACTS.  THE INDICTMENT, THEN, LIES NOT AT THE PERIPHERY BUT AT THE VERY
CENTER OF THE PROTECTION THAT THIS COURT HAS SAID IS PROVIDED A
CONGRESSMAN UNDER THE CLAUSE. 

DECISIONS OF THIS COURT DATING AS FAR BACK AS 1881 HAVE CONSISTENTLY
REFUSED TO LIMIT THE CONCEPT OF "LEGISLATIVE ACTS" TO THE "SPEECH OR
DEBATE" SPECIFICALLY MENTIONED IN ART. I, SEC. 6.  IN KILBOURN V.
THOMPSON, 103 U.S. 168 (1881), THE COURT HELD THAT: 

"IT WOULD BE A NARROW VIEW OF THE CONSTITUTIONAL PROVISION TO LIMIT
IT TO WORDS SPOKEN IN DEBATE.  THE REASON OF THE RULE IS AS FORCIBLE IN
ITS APPLICATION TO WRITTEN REPORTS PRESENTED IN THAT BODY BY ITS
COMMITTEES, TO RESOLUTIONS OFFERED, WHICH, THOUGH IN WRITING, MUST BE
REPRODUCED IN SPEECH, AND TO THE ACT OF VOTING, WHETHER IT IS DONE
VOCALLY OR BY PASSING BETWEEN THE TELLERS.  IN SHORT, TO THINGS
GENERALLY DONE IN A SESSION OF THE HOUSE BY ONE OF ITS MEMBERS IN
RELATION TO THE BUSINESS BEFORE IT."  ID., AT 204.  IN REACHING ITS
CONCLUSION, THE COURT ADOPTED WHAT WAS SAID BY THE SUPREME JUDICIAL
COURT OF MASSACHUSETTS IN COFFIN V. COFFIN, 4 MASS. 1 (1808), WHICH
KILBOURN HELD TO BE PERHAPS "THE MOST AUTHORITATIVE CASE IN THIS
COUNTRY ON THE CONSTRUCTION OF THE PROVISION IN REGARD TO FREEDOM OF
DEBATE IN LEGISLATIVE BODIES . . . . "  103 U.S.,AT 204.  CHIEF JUSTICE
PARSONS, SPEAKING FOR THE MASSACHUSETTS COURT, EXPRESSED WHAT KILBOURN
AND LATER DECISIONS SAW AS A PROPERLY GENEROUS VIEW OF THE LEGISLATIVE
PRIVILEGE: 

     "THESE PRIVILEGES ARE THUS SECURED, NOT WITH THE INTENTION OF

PROTECTING THE MEMBERS AGAINST PROSECUTIONS FOR THEIR OWN

  BENEFIT, BUT TO SUPPORT THE RIGHTS OF THE PEOPLE, BY ENABLING

  THEIR REPRESENTATIVES TO EXECUTE THE FUNCTIONS OF THEIR OFFICE

  WITHOUT FEAR OF PROSECUTIONS, CIVIL OR CRIMINAL.  I THEREFORE

  THINK THAT THE ARTICLE OUGHT NOT TO BE CONSTRUED STRICTLY, BUT

  LIBERALLY, THAT THE FULL DESIGN OF IT MAY BE ANSWERED.  I WILL

  NOT CONFINE IT TO DELIVERING AN OPINION, UTTERING A SPEECH, OR

  HARANGUING IN DEBATE; BUT WILL EXTEND IT TO THE GIVING OF A VOTE,

  TO THE MAKING OF A WRITTEN REPORT, AND TO EVERY OTHER ACT

  RESULTING FROM THE NATURE, AND IN THE EXECUTION, OF THE OFFICE:

AND I WOULD DEFINE THE ARTICLE, AS SECURING TO EVERY MEMBER

  EXEMPTION FROM PROSECUTION, FOR EVERYTHING SAID OR DONE BY HIM,

  AS A REPRESENTATIVE, IN THE EXERCISE OF THE FUNCTIONS OF THAT

  OFFICE; WITHOUT ENQUIRING WHETHER THE EXERCISE WAS REGULAR

  ACCORDING TO THE RULES OF THE HOUSE, OR IRREGULAR AND AGAINST

  THEIR RULES.  I DO NOT CONFINE THE MEMBER TO HIS PLACE IN THE

  HOUSE; AND I AM SATISFIED THAT THERE ARE CASES, IN WHICH HE IS

  ENTITLED TO THIS PRIVILEGE, WHEN NOT WITHIN THE WALLS OF THE

  REPRESENTATIVES' CHAMBER."  4 MASS.,AT 27. 

THERE CAN BE NO DOUBT, THEREFORE, THAT SENATOR BREWSTER'S VOTE ON
NEW POSTAL RATES CONSTITUTED LEGISLATIVE ACTIVITY WITHIN THE MEANING OF
THE CLAUSE.  THE SENATOR COULD NOT BE PROSECUTED OR CALLED TO ANSWER
FOR HIS VOTE IN ANY JUDICIAL OR EXECUTIVE PROCEEDING.  BUT THE
SENATOR'S IMMUNITY, I SUBMIT, GOES BEYOND THE VOTE ITSELF AND PRECLUDES
ALL EXTRA-CONGRESSIONAL SCRUTINY AS TO HOW AND WHY HE CAST, OR WOULD
HAVE CAST, HIS VOTE A CERTAIN WAY.  IN TENNEY V. BRANDHOVE, 341 U.S.
367 (1951), THE PLAINTIFF CHARGED THAT A STATE LEGISLATIVE HEARING WAS
BEING CONDUCTED NOT FOR A PROPER LEGISLATIVE PURPOSE BUT SOLELY AS A
MEANS OF HARASSING HIM.  NEVERTHELESS THE COURT HELD THAT NO ACTION
WOULD LIE AGAINST THE COMMITTEE MEMBERS UNDER FEDERAL CIVIL RIGHTS
STATUTES.  MR. JUSTICE FRANKFURTER STATED: 

     "THE CLAIM OF AN UNWORTHY PURPOSE DOES NOT DESTROY THE

  PRIVILEGE.  LEGISLATORS ARE IMMUNE FROM DETERRENTS TO THE

  UNINHIBITED DISCHARGE OF THEIR LEGISLATIVE DUTY, NOT FOR THEIR

  PRIVATE INDULGENCE BUT FOR THE PUBLIC GOOD.  ONE MUST NOT EXPECT

  UNCOMMON COURAGE EVEN IN LEGISLATORS.  THE PRIVILEGE WOULD BE OF

  LITTLE VALUE IF THEY COULD BE SUBJECTED TO THE COST AND

  INCONVENIENCE AND DISTRACTIONS OF A TRIAL UPON A CONCLUSION OF

  THE PLEADER, OR TO THE HAZARD OF A JUDGMENT AGAINST THEM BASED

UPON A JURY'S SPECULATION AS TO MOTIVES.  THE HOLDING OF THIS

  COURT IN FLETCHER V. PECK, 6 CRANCH 87, 130, THAT IT WAS NOT

  CONSONANT WITH OUR SCHEME OF GOVERNMENT FOR A COURT TO INQUIRE

  INTO THE MOTIVES OF LEGISLATORS, HAS REMAINED UNQUESTIONED.  . .

  . 

     " . . . IN TIMES OF POLITICAL PASSION, DISHONEST OR VINDICTIVE

  MOTIVES ARE READILY ATTRIBUTED TO LEGISLATIVE CONDUCT AND AS

  READILY BELIEVED.  COURTS ARE NOT THE PLACE FOR SUCH

  CONTROVERSIES.  SELF-DISCIPLINE AND THE VOTERS MUST BE THE

  ULTIMATE RELIANCE FOR DISCOURAGING OR CORRECTING SUCH ABUSES." 

  ID., AT 377-378. 

BARRING CONGRESSIONAL POWER TO AUTHORIZE THIS PROSECUTION, WHAT HAS
BEEN SAID THUS FAR WOULD SEEM SUFFICIENT TO REQUIRE AFFIRMANCE OF THE
ORDER OF DISMISSAL, FOR NEITHER SENATOR BREWSTER'S VOTE NOR HIS MOTIVES
FOR VOTING, HOWEVER DISHONORABLE, MAY BE THE SUBJECT OF A CIVIL OR
CRIMINAL PROCEEDING OUTSIDE THE HALLS OF THE SENATE.  THERE IS NOTHING
COMPLICATED ABOUT THIS CONCLUSION.  IT FOLLOWS SIMPLY AND INESCAPABLY
FROM PRIOR DECISIONS OF THIS COURT, SUPRA, SETTING FORTH THE MOST BASIC
ELEMENTS OF LEGISLATIVE IMMUNITY.  YET THE COURT DECLINES TO APPLY
THOSE PRINCIPLES TO THIS CASE, FOR IT SOMEHOW FINDS THAT THE GOVERNMENT
CAN PROVE ITS CASE WITHOUT REFERRING TO THE SENATOR'S OFFICIAL ACTS OR
MOTIVES.  ACCORDING TO THE COURT, THE GOVERNMENT CAN LIMIT ITS PROOF ON
COUNTS 1, 3, 5, AND 7 TO EVIDENCE CONCERNING SENATOR BREWSTER'S "TAKING
OR AGREEING TO TAKE MONEY FOR A PROMISE TO ACT IN A CERTAIN WAY," AND
NEED NOT SHOW "THAT APPELLEE FULFILLED THE ALLEGED ILLEGAL BARGAIN;
ACCEPTANCE OF THE BRIBE IS THE VIOLATION OF THE STATUTE, NOT
PERFORMANCE OF THE ILLEGAL PROMISE."  ANTE, AT 526.  SIMILARLY, THE
COURT FINDS THAT COUNT 9 CAN BE PROVED MERELY BY SHOWING THAT THE
SENATOR SOLICITED OR RECEIVED MONEY "WITH KNOWLEDGE THAT THE DONOR WAS
PAYING HIM COMPENSATION FOR AN OFFICIAL ACT," WITHOUT ANY INQUIRY "INTO
THE LEGISLATIVE PERFORMANCE ITSELF."  ANTE, AT 527.  THESE EVIDENTIARY
LIMITATIONS ARE DEEMED SUFFICIENT TO AVOID THE PROHIBITIONS OF THE
SPEECH OR DEBATE CLAUSE. 

WITH ALL RESPECT, I THINK THAT THE COURT HAS ADOPTED A WHOLLY
ARTIFICIAL VIEW OF THE CHARGES BEFORE US.  THE INDICTMENT ALLEGES, NOT
THE MERE RECEIPT OF MONEY, BUT THE RECEIPT OF MONEY IN EXCHANGE FOR A
SENATOR'S VOTE AND PROMISE TO VOTE IN A CERTAIN WAY.  INSOFAR AS THESE
CHARGES BEAR ON VOTES ALREADY CAST, THE GOVERNMENT CANNOT AVOID PROVING
THE PERFORMANCE OF THE BARGAINED-FOR ACTS, FOR IT IS THE ACTS
THEMSELVES, TOGETHER WITH THE MOTIVATING BRIBE, THAT FORM THE BASIS OF
COUNT 9 OF THE INDICTMENT.  PROOF OF "KNOWLEDGE THAT THE DONOR WAS
PAYING . . . FOR AN OFFICIAL ACT" MAY BE ENOUGH FOR CONVICTION UNDER
SEC. 201(G).  BUT ASSUMING IT IS, THE GOVERNMENT STILL MUST DEMONSTRATE
THAT THE "OFFICIAL ACT"  REFERRED TO WAS ACTUALLY PERFORMED, FOR THAT
IS WHAT THE INDICTMENT CHARGES.  COUNT 9, IN OTHER WORDS, CALLS INTO
QUESTION BOTH THE PERFORMANCE OF OFFICIAL ACTS BY THE SENATOR AND HIS
REASONS FOR VOTING AS HE DID.  EITHER INQUIRY VIOLATES THE SPEECH OR
DEBATE CLAUSE. 

THE COUNTS CHARGING ONLY A CORRUPT PROMISE TO VOTE ARE EQUALLY
REPUGNANT TO THE CLAUSE.  THE COURT MAY BE CORRECT THAT ONLY RECEIPT OF
THE BRIBE, AND NOT PERFORMANCE OF THE BARGAIN, IS NEEDED TO PROVE THESE
COUNTS.  BUT PROOF OF AN AGREEMENT TO BE "INFLUENCED" IN THE
PERFORMANCE OF LEGISLATIVE ACTS IS BY DEFINITION AN INQUIRY INTO THEIR
MOTIVES, WHETHER OR NOT THE ACTS THEMSELVES OR THE CIRCUMSTANCES
SURROUNDING THEM ARE QUESTIONED AT TRIAL.  FURTHERMORE, JUDICIAL
INQUIRY INTO AN ALLEGED AGREEMENT OF THIS KIND CARRIES WITH IT THE SAME
DANGERS TO LEGISLATIVE INDEPENDENCE THAT ARE HELD TO BAR ACCOUNTABILITY
FOR OFFICIAL CONDUCT ITSELF.  AS OUR BROTHER WHITE COGENTLY STATES,
POST, AT 556: 

"BRIBERY IS MOST OFTEN CARRIED OUT BY PREARRANGEMENT; IF THAT PART
OF THE TRANSACTION MAY BE PLUCKED FROM ITS CONTEXT AND MADE THE BASIS
OF CRIMINAL CHARGES, THE SPEECH OR DEBATE CLAUSE LOSES ITS FORCE.  IT
WILL BE SMALL COMFORT FOR A CONGRESSMAN TO KNOW THAT HE CANNOT BE
PROSECUTED FOR HIS VOTE, WHATEVER IT MAY BE, BUT HE CAN BE PROSECUTED
FOR AN ALLEGED AGREEMENT EVEN IF HE VOTES CONTRARY TO THE ASSERTED
BARGAIN."  THUS, EVEN IF THIS WERE AN ISSUE OF FIRST IMPRESSION, I
WOULD HOLD THAT THIS PROSECUTION, BEING AN EXTRA-CONGRESSIONAL INQUIRY
INTO LEGISLATIVE ACTS AND MOTIVES, IS BARRED BY THE SPEECH OR DEBATE
CLAUSE. 

WHAT IS ESPECIALLY DISTURBING ABOUT THE COURT'S RESULT, HOWEVER, IS
THAT THIS IS NOT AN ISSUE OF FIRST IMPRESSION, BUT ONE THAT WAS SETTLED
SIX YEARS AGO IN UNITED STATES V. JOHNSON, 383 U.S. 169 (1966).  THERE
A FORMER CONGRESSMAN WAS CHARGED WITH VIOLATING THE FEDERAL CONFLICT-OF
INTEREST STATUTE, 18 U.S.C. 281 (1964 ED.), AND WITH CONSPIRING TO
DEFRAUD THE UNITED STATES, 18 U.S.C. 371, BY ACCEPTING A BRIBE IN
EXCHANGE FOR HIS AGREEMENT TO SEEK DISMISSAL OF FEDERAL INDICTMENTS
PENDING AGAINST OFFICERS OF SEVERAL SAVINGS AND LOAN COMPANIES.  PART
OF THE ALLEGED CONSPIRACY WAS A SPEECH DELIVERED BY JOHNSON ON THE
FLOOR OF THE HOUSE, FAVORABLE TO LOAN COMPANIES GENERALLY.  THE
GOVERNMENT RELIED ON THAT SPEECH AT TRIAL AND QUESTIONED JOHNSON
EXTENSIVELY ABOUT ITS CONTENTS, AUTHORSHIP, AND HIS REASONS FOR
DELIVERING IT.  THE COURT OF APPEALS SET ASIDE THE CONSPIRACY
CONVICTION, HOLDING THAT THE SPEECH OR DEBATE CLAUSE BARRED SUCH A
PROSECUTION BASED ON AN ALLEGEDLY CORRUPT PROMISE TO DELIVER A
CONGRESSIONAL SPEECH.  IN APPEALING THAT DECISION THE GOVERNMENT MADE
THE VERY SAME ARGUMENT THAT APPEARS TO PERSUADE THE COURT TODAY: 

     "(THE RATIONALE OF THE CLAUSE) IS APPLICABLE IN SUITS BASED

UPON THE CONTENT OF A LEGISLATOR'S SPEECH OR ACTION, WHERE

 IMMUNITY IS NECESSARY TO PREVENT IMPEDIMENTS TO THE FREE

  DISCHARGE OF HIS PUBLIC DUTIES.  BUT IT DOES NOT JUSTIFY GRANTING

  HIM IMMUNITY FROM PROSECUTION FOR ACCEPTING OR AGREEING TO ACCEPT

  MONEY TO MAKE A SPEECH IN CONGRESS.  THE LATTER CASES POSES NO

  THREAT WHICH COULD REASONABLY CAUSE A CONGRESSMAN TO RESTRAIN

  HIMSELF IN HIS OFFICIAL SPEECH, BECAUSE NO SPEECH, AS SUCH, IS

  BEING QUESTIONED.  IT IS ONLY THE ANTECEDENT CONDUCT OF ACCEPTING

  OR AGREEING TO ACCEPT THE BRIBE WHICH IS ATTACKED IN SUCH A

  PROSECUTION.  'WHETHER THE PARTY TAKING THE BRIBE LIVES UP TO HIS

  CORRUPT PROMISE OR NOT IS IMMATERIAL.  THE AGREEMENT IS THE

  ESSENCE OF THE OFFENSE; WHEN THAT IS CONSUMMATED, THE OFFENSE IS

  COMPLETE.'  3 WHARTON, CRIMINAL LAW AND PROCEDURE, 1383 (ANDERSON

  ED. 1957) . . . . THUS, IF RESPONDENT, AFTER ACCEPTING THE BRIBE,

  HAD FAILED TO CARRY OUT HIS BARGAIN, HE COULD STILL BE PROSECUTED

  FOR THE SAME OFFENSE CHARGED HERE, BUT IT COULD NOT BE ARGUED

  THAT ANY SPEECH WAS BEING 'QUESTIONED' IN HIS PROSECUTION.  THE

FACT THAT RESPONDENT FULFILLED HIS BARGAIN AND DELIVERED THE

  CORRUPT SPEECH SHOULD NOT RENDER THE ENTIRE COURSE OF CONDUCT

  CONSTITUTIONALLY PROTECTED."  BRIEF FOR THE UNITED STATES IN

  UNITED STATES V. JOHNSON, NO. 25, O.T. 1965, PP. 10-11. 

THE JOHNSON OPINION ANSWERED THIS ARGUMENT IN TWO PLACES.  AFTER
EMPHASIZING THAT THE PROSECUTION AT ISSUE WAS "BASED UPON AN ALLEGATION
THAT A MEMBER OF CONGRESS ABUSED HIS POSITION BY CONSPIRING TO GIVE A
PARTICULAR SPEECH IN RETURN FOR REMUNERATION FROM PRIVATE INTERESTS,"
THE COURT STATED, 383 U.S.,AT 180:     "HOWEVER REPREHENSIBLE SUCH
CONDUCT MAY BE, WE BELIEVE THE SPEECH OR DEBATE CLAUSE EXTENDS AT LEAST
SO FAR AS TO PREVENT IT FROM BEING MADE THE BASIS OF A CRIMINAL CHARGE
AGAINST A MEMBER OF CONGRESS OF CONSPIRACY TO DEFRAUD THE UNITED STATES
BY IMPEDING THE DUE DISCHARGE OF GOVERNMENT FUNCTIONS.  THE ESSENCE OF
SUCH A CHARGE IN THIS CONTEXT IS THAT THE CONGRESSMAN'S CONDUCT WAS
IMPROPERLY MOTIVATED, AND . . . THAT IS PRECISELY WHAT THE SPEECH OR
DEBATE CLAUSE GENERALLY FORCLOSES FROM EXECUTIVE AND JUDICIAL
INQUIRY."  AGAIN, THE COURT STATED, ID., AT 182-183: 

     "THE GOVERNMENT ARGUES THAT THE CLAUSE WAS MEANT TO PREVENT

  ONLY PROSECUTIONS BASED UPON THE 'CONTENT' OF SPEECH, SUCH AS

  LIBEL ACTIONS, BUT NOT THOSE FOUNDED ON 'THE ANTECEDENT UNLAWFUL

  CONDUCT OF ACCEPTING OR AGREEING TO ACCEPT A BRIBE.'  BRIEF OF

  THE UNITED STATES, AT 11.  ALTHOUGH HISTORICALLY SEDITIOUS LIBEL

  WAS THE MOST FREQUENT INSTRUMENT FOR INTIMIDATING LEGISLATORS,

  THIS HAS NEVER BEEN THE SOLE FORM OF LEGAL PROCEEDINGS SO

  EMPLOYED, AND THE LANGUAGE OF THE CONSTITUTION IS FRAMED IN THE

BROADEST TERMS." 

FINALLY, ANY DOUBT THAT THE JOHNSON COURT REJECTED THE ARGUMENT PUT
FORWARD BY THE GOVERNMENT WAS DISPELLED BY ITS CITATION OF EX PARTE
WASON, L.R. 4 Q.B. 573 (1869).  IN THAT CASE A PRIVATE CITIZEN MOVED TO
REQUIRE A MAGISTRATE TO PROSECUTE SEVERAL MEMBERS OF THE HOUSE OF LORDS
FOR CONSPIRING TO PREVENT HIS PETITION FROM BEING HEARD ON THE FLOOR. 
THE COURT DENIED THE MOTION, HOLDING THAT "STATEMENTS MADE BY MEMBERS
OF EITHER HOUSE OF PARLIAMENT IN THEIR PLACES IN THE HOUSE . . . COULD
NOT BE MADE THE FOUNDATION OF CIVIL OR CRIMINAL PROCEEDINGS, HOWEVER
INJURIOUS THEY MIGHT BE TO THE INTEREST OF A THIRD PERSON.  AND A
CONSPIRACY TO MAKE SUCH STATEMENTS WOULD NOT MAKE THE PERSONS GUILTY OF
IT AMENABLE TO THE CRIMINAL LAW."  ID., AT 576 (COCKBURN, C.J.).  MR.
JUSTICE BLACKBURN ADDED, "I ENTIRELY CONCUR IN THINKING THAT THE
INFORMATION DID ONLY CHARGE AN AGREEMENT TO MAKE STATEMENTS IN THE
HOUSE OF LORDS, AND THEREFORE DID NOT CHARGE ANY INDICTABLE OFFENCE." 
IBID. 

JOHNSON, THEN, CAN ONLY BE READ AS HOLDING THAT A CORRUPT AGREEMENT
TO PERFORM LEGISLATIVE ACTS, EVEN IF PROVABLE WITHOUT REFERENCE TO THE
ACTS THEMSELVES, MAY NOT BE THE SUBJECT OF A GENERAL CONSPIRACY
PROSECUTION.  IN THE FACE OF THAT HOLDING AND JOHNSON'S REJECTION OF
REASONING IDENTICAL TO ITS OWN, THE COURT FINDS SUPPORT IN THE FACT
THAT JOHNSON "AUTHORIZED A NEW TRIAL ON THE CONSPIRACY COUNT, PROVIDED
THAT ALL REFERENCES TO THE MAKING OF THE SPEECH WERE ELIMINATED." 
ANTE, AT 511.  BUT THE COURT IGNORES THE FACT THAT, WITH THE SPEECH AND
ITS MOTIVES EXCLUDED FROM CONSIDERATION, THIS NEW TRIAL WAS FOR NOTHING
MORE THAN A CONSPIRACY TO INTERVENE BEFORE AN EXECUTIVE DEPARTMENT,
I.E., THE JUSTICE DEPARTMENT.  AND SUCH EXECUTIVE INTERVENTION HAS
NEVER BEEN CONSIDERED LEGISLATIVE CONDUCT ENTITLED TO THE PROTECTION OF
THE SPEECH OR DEBATE CLAUSE.  SEE INFRA, AT 542.  THE COURT CANNOT
CAMOUFLAGE ITS DEPARTURE FROM THE HOLDING OF JOHNSON BY REFERRING TO A
COLLATERAL RULING HAVING LITTLE RELEVANCE TO THE FUNDAMENTAL ISSUES OF
LEGISLATIVE PRIVILEGE INVOLVED IN THAT CASE.  I WOULD FOLLOW JOHNSON
AND HOLD THAT SENATOR BREWSTER'S ALLEGED PROMISE, LIKE THE
CONGRESSMAN'S THERE, IS IMMUNE FROM EXECUTIVE OR JUDICIAL INQUIRY. 

        II 

THE ONLY ISSUE FOR ME, THEN, IS THE ONE LEFT OPEN IN JOHNSON-- THAT
IS, THE VALIDITY OF A "PROSECUTION WHICH, THOUGH POSSIBLY ENTAILING
INQUIRY INTO LEGISLATIVE ACTS OR MOTIVATIONS, IS FOUNDED (NOT UPON A
GENERAL CONSPIRACY STATUTE BUT) UPON A NARROWLY DRAWN STATUTE PASSED BY
CONGRESS IN THE EXERCISE OF ITS LEGISLATIVE POWER TO REGULATE THE
CONDUCT OF ITS MEMBERS."  383 U.S.,AT 185.  ASSUMING THAT 18 U.S.C. 201
IS SUCH A "NARROWLY DRAWN STATUTE," I DO NOT BELIEVE THAT IT, ANY MORE
THAN A GENERAL ENACTMENT, CAN SERVE AS THE INSTRUMENT FOR HOLDING A
CONGRESSMAN ACCOUNTABLE FOR HIS LEGISLATIVE ACTS OUTSIDE THE CONFINES
OF HIS OWN CHAMBER.  THE GOVERNMENT OFFERS SEVERAL REASONS WHY SUCH A
"WAIVER" OF LEGISLATIVE IMMUNITY SHOULD BE ALLOWED.  NONE OF THESE, IT
SEEMS TO ME, IS SUFFICIENT TO OVERRIDE THE PUBLIC'S INTEREST IN
LEGISLATIVE INDEPENDENCE, SECURED TO IT BY THE PRINCIPLES OF THE SPEECH
OR DEBATE CLAUSE.  /1/ 

AS A PRELIMINARY MATTER, THE GOVERNMENT DOES NOT CONTEND, NOR CAN
IT, THAT NOR FORUM WAS PROVIDED IN WHICH SENATOR BREWSTER MIGHT HAVE
BEEN PUNISHED IF GUILTY.  ARTICLE I, SEC. 5, OF THE CONSTITUTION
PROVIDES THAT "(EACH HOUSE MAY DETERMINE THE RULES OF ITS PROCEEDINGS,
PUNISH ITS MEMBERS FOR DISORDERLY BEHAVIOR, AND, WITH THE CONCURRENCE
OF TWO THIRDS, EXPEL A MEMBER."  THIS POWER HAS A BROAD REACH,
EXTENDING "TO ALL CASES WHERE THE OFFENCE IS SUCH AS IN THE JUDGMENT OF
THE (HOUSE OR) SENATE IS INCONSISTENT WITH THE TRUST AND DUTY OF A
MEMBER."  IN RE CHAPMAN, 166 U.S. 661, 669-670 (1897).  CHAPMAN, FOR
EXAMPLE, CONCERNED A SENATE INVESTIGATION OF CHARGES THAT SENATE
MEMBERS HAD SPECULATED IN STOCKS OF COMPANIES INTERESTED IN A PENDING
TARIFF BILL.  SIMILARLY, THE HOUSE OF REPRESENTATIVES IN 1873 CENSURED
TWO MEMBERS FOR ACCEPTING STOCK TO FORESTALL A CONGRESSIONAL INQUIRY
INTO THE CREDIT MOBILIER.  THERE ARE ALSO MANY INSTANCES OF
IMPRISONMENT OR EXPULSION BY PARLIAMENT OF MEMBERS WHO ACCEPTED
BRIBES.  /2/ 

THOUGH CONCEDING THAT THE HOUSES OF CONGRESS ARE EMPOWERED TO PUNISH
THEIR MEMBERS UNDER ART. I, SEC. 5, THE GOVERNMENT URGES THAT CONGRESS
MAY ALSO ENACT A STATUTE, SUCH AS 18 U.S.C. 201, PROVIDING FOR JUDICIAL
ENFORCEMENT OF THAT POWER.  IN SUPPORT OF THIS POSITION, THE GOVERNMENT
RELIES PRIMARILY ON THE FOLLOWING LANGUAGE FROM THE OPINION IN BURTON
V. UNITED STATES, 202 U.S. 344, 367 (1906): 

"WHILE THE FRAMERS OF THE CONSTITUTION INTENDED THAT EACH DEPARTMENT
SHOULD KEEP WITHIN ITS APPOINTED SPHERE OF PUBLIC ACTION, IT WAS NEVER
CONTEMPLATED THAT THE AUTHORITY OF THE SENATE TO ADMIT TO A SEAT IN ITS
BODY ONE WHO HAD BEEN DULY ELECTED AS A SENATOR, OR ITS POWER TO EXPEL
HIM AFTER BEING ADMITTED, SHOULD, IN ANY DEGREE, LIMIT OR RESTRICT THE
AUTHORITY OF CONGRESS TO ENACT SUCH STATUTES, NOT FORBIDDEN BY THE
CONSTITUTION, AS THE PUBLIC INTERESTS REQUIRED FOR CARRYING INTO EFFECT
THE POWERS GRANTED TO IT."  HOWEVER, BURTON WAS NOT A CASE THAT
INVOLVED CONDUCT PROTECTED BY THE SPEECH OR DEBATE CLAUSE.  SENATOR
BURTON WAS PROSECUTED FOR ACCEPTING MONEY TO INFLUENCE THE POST OFFICE
DEPARTMENT IN A MAIL FRAUD CASE IN VIOLATION OF REV. STAT. SEC. 1782,
13 STAT. 123.  THAT WAS NONLEGISLATIVE CONDUCT, AND AS WE SAID IN
JOHNSON, SUPRA, AT 172 "(NO ARGUMENT IS MADE, NOR DO WE THINK THAT IT
COULD BE SUCCESSFULLY CONTENDED, THAT THE SPEECH OR DEBATE CLAUSE
REACHES CONDUCT, SUCH AS WAS INVOLVED IN THE ATTEMPT TO INFLUENCE THE
DEPARTMENT OF JUSTICE, THAT IS IN NO WISE RELATED TO THE DUE
FUNCTIONING OF THE LEGISLATIVE PROCESS."  SUCH A PROSECUTION, AS THE
QUOTED EXCERPT FROM BURTON SPECIFICALLY SAID, IS "NOT FORBIDDEN BY THE
CONSTITUTION," BUT THAT HOLDING HAS LITTLE RELEVANCE TO A CASE, SUCH AS
THIS ONE, INVOLVING LEGISLATIVE ACTS AND MOTIVES. 

THE GOVERNMENT, HOWEVER, CITES ADDITIONAL CONSIDERATIONS TO SUPPORT
THE AUTHORITY OF CONGRESS TO PROVIDE FOR JUDICIAL TRIALS OF CORRUPT
MEMBERS; THE PRESS OF CONGRESSIONAL BUSINESS, THE POSSIBILITY OF
POLITICALLY MOTIVATED JUDGMENTS BY FELLOW MEMBERS, AND THE PROCEDURAL
SAFEGUARDS OF A JUDICIAL TRIAL ARE ALL CITED AS REASONS WHY CONGRESS
SHOULD BE ALLOWED TO TRANSFER THE TRIAL OF A CORRUPT MEMBER FROM THE
HOUSES OF CONGRESS TO THE COURTS.  ONCE AGAIN, THESE ARE ARGUMENTS
URGED AND FOUND UNPERSUASIVE IN JOHNSON.  I FIND THEM NO MORE
PERSUASIVE NOW.  I MAY ASSUME AS A GENERAL MATTER THAT THE "LEGISLATIVE
BRANCH IS NOT SO WELL SUITED AS POLITICALLY INDEPENDENT JUDGES AND
JURIES TO THE TASK OF RULING UPON THE BLAMEWORTHINESS OF, AND LEVYING
APPROPRIATE PUNISHMENT UPON, SPECIFIC PERSONS."  UNITED STATES V.
BROWN, 381 U.S. 437, 445 (1965).  YET IT DOES NOT NECESSARILY FOLLOW
THAT PROSECUTORS, JUDGES, AND JURIES ARE BETTER EQUIPPED THAN
LEGISLATORS TO MAKE THE KINDS OF POLITICAL JUDGMENTS REQUIRED HERE. 
SENATORS AND CONGRESSMEN ARE NEVER ENTIRELY FREE OF POLITICAL
PRESSURES, WHETHER FROM THEIR OWN CONSTITUENTS OR FROM SPECIAL-INTEREST
LOBBIES.  SUBMISSION TO THESE PRESSURES, IN THE HOPE OF POLITICAL AND
FINANCIAL SUPPORT, OR THE FEAR OF ITS WITHDRAWAL, IS NOT UNCOMMON, NOR
IS IT NECESSARILY UNETHICAL.  /3/  THE LINE BETWEEN LEGITIMATE
INFLUENCE AND OUTRIGHT BRIBE MAY BE MORE A MATTER OF EMPHASIS THAN
OBJECTIVE FACT, AND IN THE END MAY TURN ON THE TRIER'S VIEW OF WHAT WAS
PROPER IN THE CONTEXT OF THE EVERYDAY REALITIES AND NECESSITIES OF
POLITICAL OFFICE.  WHATEVER THE SPECIAL COMPETENCE OF THE JUDICIAL
PROCESS IN OTHER AREAS, MEMBERS OF CONGRESS THEMSELVES ARE LIKELY TO BE
IN THE BETTER POSITION TO JUDGE THE ISSUE OF BRIBERY RELATING TO
LEGISLATIVE ACTS.  THE OBSERVATION OF MR. JUSTICE FRANKFURTER BEARS
REPEATING HERE:  "COURTS ARE NOT THE PLACE FOR SUCH CONTROVERSIES. 
SELF-DISCIPLINE AND THE VOTERS MUST BE THE ULTIMATE RELIANCE FOR
DISCOURAGING OR CORRECTING SUCH ABUSES."  TENNEY V. BRANDHOVE, 341
U.S.,AT 378. 

NOR IS THE MEMBER AT THE MERCY OF HIS COLLEAGUES, FREE TO ADJUST AS
THEY WISH HIS RIGHTS TO DUE PROCESS AND FREE EXPRESSION.  IT IS
DOUBTFUL, FOR EXAMPLE, THAT THE CONGRESS COULD PUNISH A MEMBER FOR THE
MERE EXPRESSION OF UNPOPULAR VIEWS OTHERWISE PROTECTED BY THE FIRST
AMENDMENT.  SEE BOND V. FLOYD, 385 U.S. 116 (1966).  AND JUDICIAL
REVIEW OF THE LEGISLATIVE INQUIRY IS NOT COMPLETELY FORECLOSED; THE
POWER OF THE HOUSE AND SENATE TO DISCIPLINE THE CONDUCT OF MEMBERS IS
NOT EXEMPT FROM THE "RESTRAINTS IMPOSED BY OR FOUND IN THE IMPLICATIONS
OF THE CONSTITUTION."  BARRY V. UNITED STATES EX REL. CUNNINGHAM, 279
U.S. 597, 614 (1929), QUOTED IN POWELL V. MCCORMACK, 395 U.S. 486, 519
N. 40 (1969). 

FINALLY, THE GOVERNMENT RELIES ON THE HISTORY OF THE CLAUSE TO
SUPPORT A CONGRESSIONAL POWER OF DELEGATION.  WHILE AGREEING THAT THE
SPEECH OR DEBATE CLAUSE WAS A "CULMINATION OF A LONG STRUGGLE FOR
PARLIAMENTARY SUPREMACY" AND A REACTION AGAINST THE CROWN'S USE OF
"CRIMINAL AND CIVIL LAW TO SUPPRESS AND INTIMIDATE CRITICAL
LEGISLATORS," JOHNSON, SUPRA, AT 178, THE GOVERNMENT URGES THAT THIS IS
NOT THE WHOLE STORY.  IT POINTS OUT THAT WHILE A LARGE PART OF BRITISH
HISTORY WAS TAKEN UP WITH PARLIAMENT'S STRUGGLES TO FREE ITSELF FROM
ROYAL DOMINATION, THE BALANCE OF POWER WAS NOT ALWAYS RANGED AGAINST
IT.  ONCE PARLIAMENT SUCCEEDED IN ASSERTING RIGHTFUL DOMINION OVER ITS
MEMBERS AND THE CONDUCT OF ITS BUSINESS, PARLIAMENT SOUGHT TO EXTEND
ITS REACH INTO AREAS AND FOR PURPOSES THAT CAN ONLY BE LABELED AN ABUSE
OF LEGISLATIVE POWER.  AWARE OF THESE ABUSES, THE FRAMERS, THE
GOVERNMENT SUBMITS, DID NOT MEAN CONGRESS TO HAVE EXCLUSIVE POWER, BUT
ONE WHICH, BY CONGRESSIONAL DELEGATION, MIGHT BE SHARED WITH THE
EXECUTIVE AND JUDICIAL BRANCHES. 

THAT THE PARLIAMENTARY PRIVILEGE WAS INDEED ABUSED IS HISTORICAL
FACT.  BY THE CLOSE OF THE 17TH CENTURY, PARLIAMENT HAD SUCCEEDED IN
OBTAINING RIGHTS OF FREE SPEECH AND DEBATE AS WELL AS THE POWER TO
PUNISH OFFENSES OF ITS MEMBERS CONTRAVENING THE GOOD ORDER AND
INTEGRITY OF ITS PROCESSES.  IN 1694, FIVE YEARS AFTER INCORPORATION OF
THE SPEECH OR DEBATE CLAUSE IN THE ENGLISH BILL OF RIGHTS, LORD
FALKLAND WAS FOUND GUILTY IN COMMONS OF ACCEPTING A BRIBE OF 2,000
POUNDS FROM THE CROWN, AND WAS IMPRISONED DURING THE PLEASURE OF THE
HOUSE.  THE SPEAKER OF THE HOUSE OF COMMONS, SIR JOHN TREVOR, WAS
CENSURED FOR BRIBERY THE FOLLOWING YEAR.  /4/ 

BUT PARLIAMENT WAS NOT CONTENT WITH MERE CONTROL OVER ITS MEMBERS'
CONDUCT.  INDEPENDENCE BROUGHT AN ASSERTION OF ABSOLUTE POWER OVER THE
DEFINITION AND REACH OF INSTITUTIONAL PRIVILEGES.  "(THE HOUSE OF
COMMONS AND THE HOUSE OF LORDS CLAIMED ABSOLUTE AND PLENARY AUTHORITY
OVER THEIR PRIVILEGES.  THIS WAS AN INDEPENDENT BODY OF LAW, DESCRIBED
BY COKE AS LEX PARLIAMENTI.  ONLY PARLIAMENT COULD DECLARE WHAT THOSE
PRIVILEGES WERE OR WHAT NEW PRIVILEGES WERE OCCASIONED, AND ONLY
PARLIAMENT COULD JUDGE WHAT CONDUCT CONSTITUTED A BREACH OF
PRIVILEGE."  WATKINS V. UNITED STATES, 354 U.S. 178, 188 (1957).  THUS,
HAVING ESTABLISHED THE BASIC PRIVILEGE OF ITS MEMBERS TO BE FREE FROM
CIVIL ARREST OR PUNISHMENT, THE HOUSE EXTENDED THE PRIVILEGE TO ITS
MEMBERS'  SERVANTS, AND PUNISHED TRESPASS ON THE ESTATES OF ITS
MEMBERS, OR THEFT OF THEIR OR THEIR SERVANTS' GOODS.  THE HOUSE WENT SO
FAR AS TO DECLARE ITS MEMBERS' SERVANTS TO BE OUTSIDE THE REACH OF THE
COMMON-LAW COURTS DURING THE TIME THAT PARLIAMENT WAS SITTING.  THIS
LED TO THE SALE OF "PROTECTIONS" PROVIDING THAT NAMED PERSONS WERE
SERVANTS OF A PARTICULAR MEMBER AND SHOULD BE FREE FROM ARREST,
IMPRISONMENT, AND MOLESTATION DURING THE TERM OF PARLIAMENT.  /5/
THESE ABUSES IN TURN WERE BROUGHT TO AMERICA.  BY 1662, FOR EXAMPLE,
THE VIRGINIA HOUSE OF BURGESSES HAD SUCCEEDED IN EXEMPTING NOT ONLY ITS
MEMBERS, BUT THEIR SERVANTS AS WELL, FROM ARREST AND MOLESTATION.  /6/ 

THE GOVERNMENT IS CORRECT IN POINTING OUT THAT THE FRAMERS, AWARE OF
THESE ABUSES, WERE DETERMINED TO GUARD AGAINST THEM.  MADISON STATED
THAT THE "LEGISLATIVE DEPARTMENT IS EVERY WHERE EXTENDING THE SPHERE OF
ITS ACTIVITY, AND DRAWING ALL POWER INTO ITS IMPETUOUS VORTEX."  /7/
AND JEFFERSON LOOKED ON THE "TYRANNY OF THE LEGISLATURES" AS "THE MOST
FORMIDABLE DREAD AT PRESENT, AND WILL BE FOR LONG YEARS."  /8/
THEREFORE THE FRAMERS REFUSED TO ADOPT THE LEX PARLIAMENTI, WHICH WOULD
HAVE ALLOWED CONGRESSMEN AND THEIR SERVANTS TO ENJOY NUMEROUS
IMMUNITIES FROM ORDINARY LEGAL RESTRAINTS.  BUT IT DOES NOT FOLLOW THAT
THE FRAMERS WENT FURTHER AND AUTHORIZED CONGRESS TO TRANSFER DISCIPLINE
OF BRIBE TAKERS TO THE JUDICIAL BRANCH.  THE GOVERNMENT REFERS US TO
NOTHING IN THE CONVENTION DEBATES OR IN WRITINGS OF THE FRAMERS THAT
EVEN REMOTELY SUPPORTS THE ARGUMENT.  INDEED THERE IS MUCH IN THE
HISTORY OF THE CLAUSE TO POINT THE OTHER WAY, TOWARD A PERSONALIZED
LEGISLATIVE PRIVILEGE NOT SUBJECT TO DEFEASANCE EVEN BY A SPECIFIC
CONGRESSIONAL DELEGATION TO THE COURTS.     THE JOHNSON OPINION DETAILS
THE HISTORY.  THE CLAUSE WAS FORMULATED BY THE CONVENTION'S COMMITTEE
ON STYLE, WHICH PHRASED IT BY REVISING ARTICLE V OF THE ARTICLES OF
CONFEDERATION WHICH HAD PROVIDED:  "FREEDOM OF SPEECH AND DEBATE IN
CONGRESS SHALL NOT BE IMPEACHED OR QUESTIONED IN ANY COURT, OR PLACE
OUT OF CONGRESS."  THIS WORDING DERIVED IN TURN FROM THE PROVISION OF
THE ENGLISH BILL OF RIGHTS OF 1689 THAT "FREEDOM OF SPEECH, AND DEBATES
OR PROCEEDINGS IN PARLIAMENT, OUGHT NOT TO BE IMPEACHED OR QUESTIONED
IN ANY COURT OR PLACE OUT OF PARLIAMENT."  THE SAME WORDING, OR
VARIATIONS OF IT, APPEARED IN STATE CONSTITUTIONS.  ARTICLE VIII OF THE
MARYLAND DECLARATION OF RIGHTS (1776) DECLARED THAT LEGISLATIVE FREEDOM
"OUGHT NOT TO BE IMPEACHED IN ANY OTHER COURT OR JUDICATURE."  THE
MASSACHUSETTS BILL OF RIGHTS (ART. XXI, 1780) PROVIDED THAT THE
"FREEDOM OF DELIBERATION, SPEECH, AND DEBATE, IN EITHER HOUSE OF THE
LEGISLATURE, IS SO ESSENTIAL TO THE RIGHTS OF THE PEOPLE, THAT IT
CANNOT BE THE FOUNDATION OF ANY ACCUSATION OR PROSECUTION, ACTION OR
COMPLAINT, IN ANY OTHER COURT OR PLACE WHATSOEVER."  THE NEW HAMPSHIRE
CONSTITUTION (ART. XXX, 1784) CONTAINED A PROVISION VIRTUALLY IDENTICAL
TO MASSACHUSETTS'.  IN SHORT "(FREEDOM OF SPEECH AND ACTION IN THE
LEGISLATURE WAS TAKEN AS A MATTER OF COURSE BY THOSE WHO SEVERED THE
COLONIES FROM THE CROWN AND FOUNDED OUR NATION."  TENNEY V. BRANDHOVE,
341 U.S.,AT 372. 

DESPITE HIS FEAR OF "LEGISLATIVE EXCESS," TENNEY V. BRANDHOVE,
SUPRA, AT 375, JEFFERSON, WHEN CONFRONTED WITH CRITICISM OF CERTAIN
CONGRESSMEN BY THE RICHMOND, VIRGINIA, GRAND JURY, SAID: 

"(THAT IN ORDER TO GIVE TO THE WILL OF THE PEOPLE THE INFLUENCE IT
OUGHT TO HAVE, AND THE INFORMATION WHICH MAY ENABLE THEM TO EXERCISE IT
USEFULLY, IT WAS A PART OF THE COMMON LAW, ADOPTED AS THE LAW OF THIS
LAND, THAT THEIR REPRESENTATIVES, IN THE DISCHARGE OF THEIR FUNCTIONS,
SHOULD BE FREE FROM THE COGNIZANCE OR COERCION OF THE COORDINATE
BRANCHES, JUDICIARY AND EXECUTIVE."  8 THE WORKS OF THOMAS JEFFERSON
322 (FORD ED. 1904).  JEFFERSON'S POINT OF VIEW WAS SHARED BY HIS
CONTEMPORARIES /9/ AND FOUND JUDICIAL EXPRESSION AS EARLY AS 1808, IN
THE COFFIN OPINION, SUPRA.  IT WAS THERE STATED: 

     "IN CONSIDERING THIS ARTICLE, IT APPEARS TO ME THAT THE

  PRIVILEGE SECURED BY IT IS NOT SO MUCH THE PRIVILEGE OF THE HOUSE

  AS AN ORGANIZED BODY, AS OF EACH INDIVIDUAL MEMBER COMPOSING IT,

  WHO IS ENTITLED TO THIS PRIVILEGE, EVEN AGAINST THE DECLARED WILL

  OF THE HOUSE.  FOR HE DOES NOT HOLD THIS PRIVILEGE AT THE

  PLEASURE OF THE HOUSE; BUT DERIVES IT FROM THE WILL OF THE

PEOPLE, EXPRESSED IN THE CONSTITUTION, WHICH IS PARAMOUNT TO THE

  WILL OF EITHER OR BOTH BRANCHES OF THE LEGISLATURE.  IN THIS

  RESPECT THE PRIVILEGE HERE SECURED RESEMBLES OTHER PRIVILEGES

  ATTACHED TO EACH MEMBER BY ANOTHER PART OF THE CONSTITUTION, BY

  WHICH HE IS EXEMPTED FROM ARRESTS ON MESNE (OR ORIGINAL) PROCESS,

  DURING HIS GOING TO, RETURNING FROM, OR ATTENDING THE GENERAL

  COURT.  OF THESE PRIVILEGES, THUS SECURED TO EACH MEMBER, HE

  CANNOT BE DEPRIVED, BY A RESOLVE OF THE HOUSE, OR BY AN ACT OF

  THE LEGISLATURE."  4 MASS.,AT 27. 

IN SHORT, IF THE FRAMERS CONTEMPLATED JUDICIAL INQUIRY INTO
LEGISLATIVE ACTS, EVEN ON THE SPECIFIC AUTHORIZATION OF CONGRESS, THAT
INTENT IS NOT REFLECTED IN THE LANGUAGE OF THE SPEECH OR DEBATE CLAUSE
OR CONTEMPORARY UNDERSTANDING OF LEGISLATIVE PRIVILEGE.  HISTORY
CERTAINLY SHOWS THAT THE FRAMERS FEARED UNBRIDLED LEGISLATIVE POWER. 
THAT FACT, HOWEVER, YIELDS NO BASIS FOR AN INTERPRETATION THAT IN ART.
I, SECS. 1 AND 8, THE FRAMERS AUTHORIZED CONGRESS TO IGNORE THE
PROHIBITION AGAINST INQUIRY IN "ANY OTHER PLACE" AND ENACT A STATUTE
EITHER OF GENERAL APPLICATION OR SPECIFICALLY PROVIDING FOR A TRIAL IN
THE COURTS OF A MEMBER WHO TAKES A BRIBE FOR CONDUCT RELATED TO
LEGISLATIVE ACTS.  /10/

        III 

I YIELD NOTHING TO THE COURT IN CONVICTION THAT THIS REPREHENSIBLE AND
OUTRAGEOUS CONDUCT, IF COMMITTED BY THE SENATOR, SHOULD NOT HAVE GONE
UNPUNISHED.  BUT WHETHER A COURT OR ONLY THE SENATE MIGHT UNDERTAKE THE
TASK IS A CONSTITUTIONAL ISSUE OF PORTENTOUS SIGNIFICANCE, WHICH MUST
OF COURSE BE RESOLVED UNINFLUENCED BY THE MAGNITUDE OF THE PERFIDY
ALLEGED.  IT IS NO ANSWER THAT CONGRESS ASSIGNED THE TASK TO THE
JUDICIARY IN ENACTING 18 U.S.C. 201.  OUR DUTY IS TO NATION AND
CONSTITUTION, NOT CONGRESS.  WE ARE GUILTY OF A GRAVE DISSERVICE TO
BOTH NATION AND CONSTITUTION WHEN WE PERMIT CONGRESS TO SHIRK ITS
RESPONSIBILITY IN FAVOR OF THE COURTS.  THE FRAMERS' JUDGMENT WAS THAT
THE AMERICAN PEOPLE COULD HAVE A CONGRESS OF INDEPENDENCE AND INTEGRITY
ONLY IF ALLEGED MISBEHAVIOR IN THE PERFORMANCE OF LEGISLATIVE FUNCTIONS
WAS ACCOUNTABLE SOLELY TO A MEMBER'S OWN HOUSE AND NEVER TO THE
EXECUTIVE OR JUDICIARY.  THE PASSING YEARS HAVE AMPLY JUSTIFIED THE
WISDOM OF THAT JUDGMENT.  IT IS THE COURT'S DUTY TO ENFORCE THE LETTER
OF THE SPEECH OR DEBATE CLAUSE IN THAT SPIRIT.  WE DID SO IN DECIDING
JOHNSON.  IN TURNING ITS BACK ON THAT DECISION TODAY, THE COURT
ARROGATES TO THE JUDICIARY AN AUTHORITY COMMITTED BY THE CONSTITUTION,
IN SENATOR BREWSTER'S CASE, EXCLUSIVELY TO THE SENATE OF THE UNITED
STATES.  YET THE COURT PROVIDES NO PRINCIPLES JUSTIFICATION, AND I CAN
THINK OF NONE, FOR ITS DENIAL THAT UNITED STATES V. JOHNSON COMPELS
AFFIRMANCE OF THE DISTRICT COURT.  THAT DECISION IS ONLY SIX YEARS OLD
AND BEARS THE INDELIBLE IMPRINT OF THE DISTINGUISHED CONSTITUTIONAL
SCHOLAR WHO WROTE THE OPINION FOR THE COURT.  JOHNSON SURELY MERITED A
LONGER LIFE. 

/1/  ALTHOUGH THE COURT DOES NOT REACH THIS ISSUE, IT ADOPTS MANY OF
THE GOVERNMENT'S ARGUMENTS TO SHOW THAT THE SPEECH OR DEBATE CLAUSE IS
OR SHOULD BE WHOLLY INAPPLICABLE TO THIS CASE.  MY DISAGREEMENT WITH
THESE CONTENTIONS APPLIES EQUALLY TO THEIR USE BY THE COURT IN SUPPORT
OF ITS POSITION. 

/2/  SEE N. 4, INFRA, AND ACCOMPANYING TEXT. 

/3/  CF. CONFLICT OF INTEREST AND FEDERAL SERVICE, ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK 14-15 (1960): 

"THE CONGRESSMAN'S REPRESENTATIVE STATUS LIES AT THE HEART OF THE
MATTER; AS A REPRESENTATIVE, HE IS OFTEN SUPPOSED TO REPRESENT A
PARTICULAR ECONOMIC GROUP, AND IN MANY INSTANCES HIS OWN ECONOMIC SELF
INTEREST IS CLOSELY TIED TO THAT GROUP.  THAT IS PRECISELY WHY IT
SELECTED HIM.  IT IS COMMON TO TALK OF THE FARM BLOE, OR THE SILVER
SENATORS.  WE WOULD THINK ODD A FISHING STATE CONGRESSMAN WHO WAS NOT
MINDFUL OF THE INTERESTS OF THE FISHING INDUSTRY-- THOUGH HE MAY BE IN
THE FISHING BUSINESS HIMSELF, AND THOUGH HIS CAMPAIGN FUNDS COME IN
PART FROM THIS SOURCE.  THIS KIND OF REPRESENTATION IS CONSIDERED
INEVITABLE AND, INDEED, GENERALLY APPLAUDED.  STERILE APPLICATION OF AN
ABSTRACT RULE AGAINST ACTING IN SITUATIONS INVOLVING SELF-INTEREST
WOULD PREVENT THE FARMER SENATOR FROM VOTING ON FARM LEGISLATION OR THE
NEGRO CONGRESSMAN FROM SPEAKING ON CIVIL RIGHTS BILLS.  AT SOME POINT A
PURIST ATTITUDE TOWARD THE EVILS OF CONFLICTS OF INTEREST IN CONGRESS
RUNS AFOUL OF THE BASIC PREMISES OF AMERICAN REPRESENTATIVE
GOVERNMENT." 

/4/  R. LUCE, LEGISLATIVE ASSEMBLIES 401-402 (1924).  ANOTHER
NOTABLE INSTANCE WAS THAT OF ROBERT WALPOLE, WHO IN 1711 WAS EXPELLED
AND IMPRISONED BY THE HOUSE ON CHARGES OF CORRUPTION.  T. TASWELL
LANGMEAD'S ENGLISH CONSTITUTIONAL HISTORY 583-584 (11TH ED., T.
PLUCKNETT, 1960). 

/5/  C. WITTKE, THE HISTORY OF ENGLISH PARLIAMENTARY PRIVILEGE 39-47
(1921); TASWELL-LANGMEAD, SUPRA, AT 580.  THE ABUSE OF THE PRIVILEGE
LAY AS MUCH IN ITS ARBITRARY CONTRACTION AS EXTENSION.  IN 1763 THE
HOUSE OF COMMONS REACTED ANGRILY TO A TRACT WRITTEN BY ONE OF ITS OWN
MEMBERS, JOHN WILKES, AND WITHDREW THE PRIVILEGE FROM HIM IN ORDER TO
PERMIT HIS PROSECUTION FOR SEDITIOUS LIBEL.  THE HOUSE ALSO EXPELLED
WILKES, AND HE FLED TO FRANCE AS AN OUTLAW.  UPON HIS RETURN TO ENGLAND
IN 1768, HE WAS RE-ELECTED TO PARLIAMENT, AGAIN EXPELLED, TRIED FOR
SEDITIOUS LIBEL, AND SENTENCED TO 22 MONTHS' IMPRISONMENT.  THE HOUSE
REFUSED TO SEAT HIM ON THREE FURTHER OCCASIONS, AND IT WAS NOT UNTIL
1782 THAT THE RESOLUTIONS EXPELLING WILKES AND DECLARING HIM INCAPABLE
OF RE-ELECTION WERE EXPUNGED FROM THE RECORDS OF THE HOUSE.  TASWELL
LANGMEAD, SUPRA, AT 584-585; POWELL V. MCCORMACK, 395 U.S. 486, 527-528
(1969). 

/6/  M. CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES 99
(1943). 

/7/  THE FEDERALIST NO. 48. 

/8/  TENNEY V. BRANDHOVE, 341 U.S. 367, 375 N. 4 (1951). 

/9/  JAMES WILSON, A MEMBER OF THE CONVENTION COMMITTEE RESPONSIBLE
FOR THE CLAUSE, STATED:  "IN ORDER TO ENABLE AND ENCOURAGE A
REPRESENTATIVE OF THE PUBLICK TO DISCHARGE HIS PUBLICK TRUST WITH
FIRMNESS AND SUCCESS, IT IS INDISPENSABLY NECESSARY, THAT HE SHOULD
ENJOY THE FULLEST LIBERTY OF SPEECH, AND THAT HE SHOULD BE PROTECTED
FROM THE RESENTMENT OF EVERY ONE, HOWEVER POWERFUL, TO WHOM THE
EXERCISE OF THAT LIBERTY MAY OCCASION OFFENCE."  1 THE WORKS OF JAMES
WILSON 421 (R. MCCLOSKEY ED. 1967). 

/10/  WHILE IT IS TRUE THAT CONGRESS HAS MADE THE ACCEPTANCE OF A
BRIBE A CRIME EVER SINCE 1853, IT SHOULD BE NOTED THAT THE EARLIEST
FEDERAL BRIBERY STATUTE, PASSED BY CONGRESS IN 1790, APPLIED ONLY TO
JUDGES WHO TOOK BRIBES IN EXCHANGE FOR AN "OPINION, JUDGMENT OR
DECREE."  ACT OF APRIL 30, 1790, 1 STAT. 112, 117.  IT ALSO APPEARS
THAT THE COMMON LAW DID NOT RECOGNIZE THE CHARGE OF BRIBE-TAKING BY A
LEGISLATOR.  BLACKSTONE, FOR EXAMPLE, DEFINED BRIBERY AS "WHEN A JUDGE,
OR OTHER PERSON CONCERNED IN THE ADMINISTRATION OF JUSTICE, TAKES ANY
UNDUE REWARD TO INFLUENCE HIS BEHAVIOUR IN HIS OFFICE."  4 W.
BLACKSTONE, COMMENTARIES *139.  COKE ALSO REGARDED BRIBERY AS A CRIME
COMMITTED BY JUDGES.  COKE, THIRD INSTITUTE C. 68, PARAS. 1-2. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

THE QUESTION PRESENTED BY THIS CASE IS NOT WHETHER BRIBERY OR OTHER
OFFENSIVE CONDUCT ON THE PART OF MEMBERS OF CONGRESS MUST OR SHOULD GO
UNPUNISHED.  NO ONE SUGGESTS THAT THE SPEECH OR DEBATE CLAUSE INSULATES
SENATORS AND CONGRESSMEN FROM ACCOUNTABILITY FOR THEIR MISDEEDS. 
INDEED, THE CLAUSE ITSELF IS BUT ONE OF SEVERAL CONSTITUTIONAL
PROVISIONS THAT MAKE CLEAR THAT CONGRESS HAS BROAD POWERS TO TRY AND
PUNISH ITS MEMBERS: 

"(THE CONSTITUTION EXPRESSLY EMPOWERS EACH HOUSE TO PUNISH ITS OWN
MEMBERS FOR DISORDERLY BEHAVIOR.  WE SEE NO REASON TO DOUBT THAT THIS
PUNISHMENT MAY IN A PROPER CASE BE IMPRISONMENT, AND THAT IT MAY BE FOR
REFUSAL TO OBEY SOME RULE ON THAT SUBJECT MADE BY THE HOUSE FOR THE
PRESERVATION OF ORDER. 

     "SO, ALSO, THE PENALTY WHICH EACH HOUSE IS AUTHORIZED TO

  INFLICT IN ORDER TO COMPEL THE ATTENDANCE OF ABSENT MEMBERS MAY

  BE IMPRISONMENT, AND THIS MAY BE FOR A VIOLATION OF SOME ORDER OR

  STANDING RULE ON THAT SUBJECT. 

      "EACH HOUSE IS BY THE CONSTITUTION MADE THE JUDGE OF THE

  ELECTION AND QUALIFICATION OF ITS MEMBERS.  IN DECIDING ON THESE

  IT HAS AN UNDOUBTED RIGHT TO EXAMINE WITNESSES AND INSPECT

  PAPERS, SUBJECT TO THE USUAL RIGHTS OF WITNESSES IN SUCH CASES;

  AND IT MAY BE THAT A WITNESS WOULD BE SUBJECT TO LIKE PUNISHMENT

  AT THE HANDS OF THE BODY ENGAGED IN TRYING A CONTESTED ELECTION,

  FOR REFUSING TO TESTIFY, THAT HE WOULD IF THE CASE WERE PENDING

  BEFORE A COURT OF JUDICATURE. 

     "THE HOUSE OF REPRESENTATIVES HAS THE SOLE RIGHT TO IMPEACH

  OFFICERS OF THE GOVERNMENT, AND THE SENATE TO TRY THEM.  WHERE

  THE QUESTION OF SUCH IMPEACHMENT IS BEFORE EITHER BODY ACTING IN

  ITS APPROPRIATE SPHERE ON THAT SUBJECT, WE SEE NO REASON TO DOUBT

THE RIGHT TO COMPEL THE ATTENDANCE OF WITNESSES, AND THEIR ANSWER

  TO PROPER QUESTIONS, IN THE SAME MANNER AND BY THE USE OF THE

  SAME MEANS THAT COURTS OF JUSTICE CAN IN LIKE CASES." 

KILBOURN V. THOMPSON, 103 U.S. 168, 189-190 (1881).  THE SOLE ISSUE
HERE IS IN WHAT FORUM THE ACCOUNTING MUST TAKE PLACE-- WHETHER THE
PROSECUTION THAT THE GOVERNMENT PROPOSES IS CONSISTENT WITH THE COMMAND
THAT "FOR ANY SPEECH OR DEBATE IN EITHER HOUSE, THEY (MEMBERS OF
CONGRESS) SHALL NOT BE QUESTIONED IN ANY OTHER PLACE."  U.S. CONST.,
ART. I, SEC. 6, CL. 1. 

THE MAJORITY DISPOSES OF THIS ISSUE BY DISTINGUISHING BETWEEN PROMISE
AND PERFORMANCE.  EVEN IF A SENATOR OR CONGRESSMAN MAY NOT BE
PROSECUTED FOR A CORRUPT LEGISLATIVE ACT, THE SPEECH OR DEBATE CLAUSE
DOES NOT PROHIBIT PROSECUTION FOR A CORRUPT PROMISE TO PERFORM THAT
ACT.  IF A MEMBER OF CONGRESS PROMISES TO VOTE FOR OR AGAINST A BILL IN
RETURN FOR MONEY, CASTS HIS VOTE IN ACCORDANCE WITH THE PROMISE AND
ACCEPTS PAYMENT, THE MAJORITY'S VIEW IS THAT EVEN THOUGH HE MAY NOT BE
PROSECUTED FOR VOTING AS HE DID, ALTHOUGH THE VOTE WAS CORRUPT, THE
EXECUTIVE MAY PROSECUTE AND THE JUDICIARY MAY TRY HIM FOR THE CORRUPT
AGREEMENT OR FOR TAKING THE MONEY EITHER UNDER A NARROWLY DRAWN STATUTE
OR ONE OF GENERAL APPLICATION.  THIS DISTINCTION BETWEEN A PROMISE AND
AN ACT WILL NOT WITHSTAND SCRUTINY IN TERMS OF THE VALUES THAT THE
SPEECH OR DEBATE CLAUSE WAS DESIGNED TO SECURE. 

THE MAJORITY AGREES THAT IN ORDER TO ASSURE THE INDEPENDENCE AND
INTEGRITY OF THE LEGISLATURE AND TO REINFORCE THE SEPARATION OF POWERS
SO DELIBERATELY ESTABLISHED BY THE FOUNDERS, THE SPEECH OR DEBATE
CLAUSE PREVENTS A LEGISLATIVE ACT FROM BEING THE BASIS OF CRIMINAL OR
CIVIL LIABILITY.  CONCEDEDLY, A MEMBER OF CONGRESS MAY NOT BE
PROSECUTED OR SUED FOR MAKING A SPEECH OR VOTING IN COMMITTEE OR ON THE
FLOOR, WHETHER HE WAS PAID TO DO SO OR NOT.  THE MAJORITY ALSO APPEARS
TO EMBRACE THE HOLDING IN UNITED STATES V. JOHNSON, 383 U.S. 169
(1966), THAT A MEMBER OF CONGRESS COULD NOT BE CONVICTED OF A
CONSPIRACY TO DEFRAUD THE GOVERNMENT WHERE THE PURPOSES OR MOTIVES
UNDERLYING HIS CONDUCT AS A LEGISLATOR ARE CALLED INTO QUESTION.  IF
ONE FOLLOWS THE MODE OF THE MAJORITY'S PRESENT ANALYSIS, THE
PROSECUTION IN JOHNSON WAS NOT FOR SPEAKING, VOTING, OR PERFORMING ANY
OTHER LEGISLATIVE ACT IN A PARTICULAR MANNER; THE CRIMINAL ACT CHARGED
WAS A CONSPIRACY TO DEFRAUD THE UNITED STATES ANTERIOR TO ANY
LEGISLATIVE PERFORMANCE.  TO PROVE THE CRIME, HOWEVER, THE PROSECUTION
INTRODUCED EVIDENCE THAT MONEY WAS PAID TO MAKE A SPEECH, AMONG OTHER
THINGS, AND THAT THE SPEECH WAS MADE.  THIS, THE COURT HELD, VIOLATED
THE SPEECH OR DEBATE CLAUSE, BECAUSE IT CALLED INTO QUESTION THE
MOTIVES AND PURPOSES UNDERLYING CONGRESSMAN JOHNSON'S PERFORMANCE OF
HIS LEGISLATIVE DUTIES. 

THE SAME INFIRMITY INHERES IN THE PRESENT INDICTMENT, WHICH WAS
FOUNDED UPON TWO SEPARATE STATUTES.  TITLE 18 U.S.C. 201(G) REQUIRES
PROOF OF A DEFENDANT'S RECEIPT, OR AN AGREEMENT OR ATTEMPT TO RECEIVE,
ANYTHING OF VALUE "FOR OR BECAUSE OF ANY OFFICIAL ACT PERFORMED OR TO
BE PERFORMED BY HIM . . . . "  OF COURSE, NOT ALL, OR EVEN MANY,
OFFICIAL ACTS WOULD BE LEGISLATIVE ACTS PROTECTED BY THE SPEECH OR
DEBATE CLAUSE; BUT WHATEVER THE ACT, THE GOVERNMENT MUST IDENTIFY IT TO
PROVE ITS CASE.  HERE WE ARE LEFT IN NO DOUBT WHATSOEVER, FOR THE
OFFICIAL ACTS EXPRESSLY CHARGED IN THE INDICTMENT WERE IN RESPECT TO
"HIS ACTION, VOTE AND DECISION ON POSTAGE RATE LEGISLATION." 
SIMILARLY, THERE IS NO BASIS FOR ARGUING THAT THE INDICTMENT DID NOT
CONTEMPLATE PROOF OF PERFORMANCE OF THE ACT, FOR THE INDICTMENT IN SO
MANY WORDS CHARGED THE ARRANGEMENT WAS "FOR AND BECAUSE OF OFFICIAL
ACTS PERFORMED BY HIM IN RESPECT TO HIS ACTION, VOTE AND DECISION ON
POSTAGE RATE LEGISLATION WHICH HAD BEEN PENDING BEFORE HIM IN HIS
OFFICIAL CAPACITY."  IT IS THIS INDICTMENT, NOT SOME OTHER CHARGE, THAT
WAS CHALLENGED AND DISMISSED BY THE DISTRICT COURT.  LIKE THAT COURT, I
WOULD TAKE THE GOVERNMENT AT ITS WORD:  IT ALLEGED AND INTENDED TO
PROVE FACTS THAT QUESTIONED AND IMPUGNED THE MOTIVES AND PURPOSES
UNDERLYING SPECIFIED LEGISLATIVE ACTS OF THE SENATOR AND INTENDED TO
USE THESE FACTS AS A BASIS FOR THE CONVICTION OF THE SENATOR HIMSELF. 
THUS, TAKING THE CHARGE AT FACE VALUE, THE INDICTMENT REPRESENTS AN
ATTEMPT TO PROSECUTE AND CONVICT A MEMBER OF CONGRESS NOT ONLY FOR
TAKING MONEY BUT ALSO FOR PERFORMING A LEGISLATIVE ACT.  MOREOVER,
WHATEVER THE PROOF MIGHT BE, THE INDICTMENT ON ITS FACE CHARGED A
CORRUPT UNDERTAKING WITH RESPECT TO THE PERFORMANCE OF LEGISLATIVE
CONDUCT THAT HAD ALREADY OCCURRED AND SO, WITHOUT MORE, "QUESTIONED IN
(SOME) OTHER PLACE" THE SPEECH AND DEBATE OF A MEMBER OF CONGRESS. 
SUCH A CHARGE IS PRECISELY THE KIND THAT THE SENATOR SHOULD NOT HAVE
BEEN CALLED UPON TO ANSWER IF THE SPEECH OR DEBATE CLAUSE IS TO FULFILL
ITS STATED PURPOSE. 

INSOFAR AS IT CHARGED CRIMES UNDER 18 U.S.C. 201(C)(1), THE
INDICTMENT FARES LITTLE BETTER.  THAT SECTION REQUIRES PROOF OF A
CORRUPT ARRANGEMENT FOR THE RECEIPT OF MONEY AND ALSO PROOF THAT THE
ARRANGEMENT WAS IN RETURN FOR THE DEFENDANT "BEING INFLUENCED IN HIS
PERFORMANCE OF ANY OFFICIAL ACT . . . . "  WHATEVER THE OFFICIAL ACT
MAY PROVE TO BE, THE GOVERNMENT CANNOT PROVE ITS CASE WITHOUT CALLING
INTO QUESTION THE MOTIVES OF THE MEMBER IN PERFORMING THAT ACT, FOR IT
MUST PROVE THAT THE MEMBER UNDERTOOK FOR MONEY TO BE INFLUENCED IN THAT
PERFORMANCE.  CLEARLY, IF THE GOVERNMENT SOUGHT TO PROVE ITS CASE
AGAINST A MEMBER OF CONGRESS BY EVIDENCE OF A LEGISLATIVE ACT,
CONVICTION COULD NOT SURVIVE IN THE FACE OF THE HOLDING IN JOHNSON. 
BUT EVEN IF AN OFFENSE UNDER THE STATUTE COULD BE ESTABLISHED MERELY BY
PROOF OF AN UNDERTAKING TO CAST A VOTE, WHICH IS NOT ALLEGED IN THE
INDICTMENT OR SHOWN AT TRIAL TO HAVE TAKEN PLACE ONE WAY OR THE OTHER,
THE MOTIVES OF THE LEGISLATOR IN PERFORMING HIS DUTIES WITH RESPECT TO
THE SUBJECT MATTER OF THE UNDERTAKING WOULD NEVERTHELESS INEVITABLY BE
IMPLICATED.  IN CHARGING THE OFFENSE UNDER SEC. 201(C)(1), THE
INDICTMENT ALLEGED A CORRUPT ARRANGEMENT MADE "IN RETURN FOR BEING
INFLUENCED IN HIS PERFORMANCE OF OFFICIAL ACTS IN RESPECT TO HIS
ACTION, VOTE, AND DECISION ON POSTAGE LEGISLATION WHICH MIGHT AT ANY
TIME BE PENDING BEFORE HIM IN HIS OFFICIAL CAPACITY."  AGAIN, I WOULD
TAKE THE GOVERNMENT AT ITS WORD:  IT CHARGED AND INTENDED TO PROVE
FACTS THAT COULD NOT FAIL TO IMPLICATE SENATOR BREWSTER'S PERFORMANCE
OF HIS LEGISLATIVE DUTIES.  /1/ 

THE USE OF CRIMINAL CHARGES "AGAINST CRITICAL OR DISFAVORED
LEGISLATORS BY THE EXECUTIVE IN A JUDICIAL FORUM WAS THE CHIEF FEAR
PROMPTING THE LONG STRUGGLE FOR PARLIAMENTARY PRIVILEGE," UNITED STATES
V. JOHNSON, 383 U.S.,AT 182 (1966), AND IN APPLYING THE PRIVILEGE "WE
LOOK PARTICULARLY TO THE PROPHYLACTIC PURPOSES OF THE CLAUSE."  IBID.
LET US SUPPOSE THAT THE EXECUTIVE BRANCH IS INFORMED THAT PRIVATE
INTERESTS ARE PAYING A MEMBER OF CONGRESS TO OPPOSE ADMINISTRATION
SPONSORED LEGISLATION.  THE CONGRESSMAN IS CHAIRMAN OF A KEY COMMITTEE
WHERE A VOTE IS PENDING.  A REPRESENTATIVE FROM THE EXECUTIVE BRANCH
INFORMS THE CONGRESSMAN OF THE ALLEGATIONS AGAINST HIM, HOPES THE
CHARGES ARE NOT TRUE, AND EXPRESSES CONFIDENCE THAT THE COMMITTEE WILL
REPORT THE BILL AND THAT THE MEMBER WILL SUPPORT IT ON THE FLOOR.  THE
PRESSURE ON THE CONGRESSMEN, CORRUPT OR NOT, IS UNDENIABLE.  HE WILL
CLEARLY FARE BETTER IN ANY FUTURE CRIMINAL PROSECUTION IF HE ANSWERS
THE CHARGE OF CORRUPTION WITH EVIDENCE THAT HE VOTED CONTRARY TO THE
ALLEGED BARGAIN.  EVEN MORE COMPELLING IS THE LIKELIHOOD THAT HE WILL
NOT BE PROSECUTED AT ALL IF HE FOLLOWS THE ADMINISTRATION'S SUGGESTION
AND SUPPORTS THE BILL.  PUTTING ASIDE THE POTENTIAL FOR ABUSE IN ILL
CONCEIVED, MISTAKEN, OR FALSE ACCUSATIONS, THE SPEECH OR DEBATE CLAUSE
WAS DESIGNED TO PREVENT JUST SUCH AN EXERCISE OF EXECUTIVE POWER.  IT
IS NO ANSWER TO MAINTAIN THAT THE POTENTIAL FOR ABUSE DOES NOT INHERE
IN A PROSECUTION FOR A COMPLETED BRIBERY TRANSACTION WHERE THE
LEGISLATIVE ACT HAS ALREADY OCCURRED.  A CORRUPT VOTE MAY NOT BE MADE
THE OBJECT OF A CRIMINAL PROSECUTION BECAUSE OTHERWISE THE EXECUTIVE
WOULD BE ARMED WITH POWER TO CONTROL THE VOTE IN QUESTION, IF
FOREWARNED, OR IN ANY EVENT TO CONTROL OTHER LEGISLATIVE CONDUCT. 

ALL OF THIS COMES TO NAUGHT IF THE EXECUTIVE MAY PROSECUTE FOR A
PROMISE TO VOTE THOUGH NOT FOR THE VOTE ITSELF.  THE SAME HAZARDS TO
LEGISLATIVE INDEPENDENCE INHERE IN THE TWO PROSECUTIONS.  BRIBERY IS
MOST OFTEN CARRIED OUT BY PREARRANGEMENT; IF THAT PART OF THE
TRANSACTION MAY BE PLUCKED FROM ITS CONTEXT AND MADE THE BASIS OF
CRIMINAL CHARGES, THE SPEECH OR DEBATE CLAUSE LOSES ITS FORCE.  IT WILL
BE SMALL COMFORT FOR A CONGRESSMAN TO KNOW THAT HE CANNOT BE PROSECUTED
FOR HIS VOTE, WHATEVER IT MAY BE, BUT HE CAN BE PROSECUTED FOR AN
ALLEGED AGREEMENT EVEN IF HE VOTES CONTRARY TO THE ASSERTED BARGAIN. 

THE REALITIES OF THE AMERICAN POLITICAL SYSTEM, OF WHICH THE
MAJORITY FAILS TO TAKE ACCOUNT, RENDER PARTICULARLY ILLUSORY A SPEECH
OR DEBATE CLAUSE DISTINCTION BETWEEN A PROMISE TO PERFORM A LEGISLATIVE
ACT AND THE ACT ITSELF.  OURS IS A REPRESENTATIVE GOVERNMENT. 
CANDIDATES FOR OFFICE ENGAGE IN HEATED CONTESTS AND THE VICTOR IS HE
WHO RECEIVES THE GREATEST NUMBER OF VOTES FROM HIS CONSTITUENTS.  THESE
CAMPAIGNS ARE RUN ON PLATFORMS THAT INCLUDE STATEMENTS OF INTENTION AND
UNDERTAKINGS TO PROMOTE CERTAIN POLICIES.  THESE PROMISES ARE GEARED,
AT LEAST IN PART, TO THE INTERESTS OF THE CONGRESSMAN'S CONSTITUENCY. 
MEMBERS OF CONGRESS MAY BE LEGALLY FREE FROM DICTATION BY THE VOTERS,
BUT THERE IS A RESIDUAL CONVICTION THAT THEY SHOULD HAVE DUE REGARD FOR
THE INTERESTS OF THEIR STATES OR DISTRICTS, IF ONLY BECAUSE ON ELECTION
DAY A MEMBER IS ANSWERABLE FOR HIS CONDUCT. 

SERVING CONSTITUENTS IS A CRUCIAL PART OF A LEGISLATOR'S ONGOING
DUTIES.  CONGRESSMEN RECEIVE A CONSTANT STREAM OF COMPLAINTS AND
REQUESTS FOR HELP OR SERVICE.  JUDGED BY THE VOLUME AND CONTENT OF A
CONGRESSMAN'S MAIL, THE RIGHT TO PETITION IS NEITHER THEORETICAL NOR
IGNORED.  IT HAS NEVER BEEN THOUGHT UNETHICAL FOR A MEMBER OF CONGRESS
WHOSE PERFORMANCE ON THE JOB MAY DETERMINE THE SUCCESS OF HIS NEXT
CAMPAIGN NOT ONLY TO LISTEN TO THE PETITIONS OF INTEREST GROUPS IN HIS
STATE OR DISTRICT, WHICH MAY COME FROM EVERY CONCEIVABLE GROUP OF
PEOPLE, BUT ALSO TO SUPPORT OR OPPOSE LEGISLATION SERVING OR
THREATENING THOSE INTERESTS. 

AGAINST THIS BACKGROUND A SECOND FACT OF AMERICAN POLITICAL LIFE
ASSUMES CONSIDERABLE IMPORTANCE FOR THE PURPOSES OF THIS CASE. 
CONGRESSIONAL CAMPAIGNS ARE MOST OFTEN FINANCED WITH CONTRIBUTIONS FROM
THOSE INTERESTED IN SUPPORTING PARTICULAR CONGRESSMEN AND THEIR
POLICIES.  A LEGISLATOR MUST MAINTAIN A WORKING RELATIONSHIP WITH HIS
CONSTITUENTS NOT ONLY TO GARNER VOTES TO MAINTAIN HIS OFFICE BUT TO
GENERATE FINANCIAL SUPPORT FOR HIS CAMPAIGNS.  HE MUST ALSO KEEP IN
MIND THE POTENTIAL EFFECT OF HIS CONDUCT UPON THOSE FROM WHOM HE HAS
RECEIVED FINANCIAL SUPPORT IN THE PAST AND THOSE WHOSE HELP HE EXPECTS
OR HOPES TO HAVE IN THE NEXT CAMPAIGN.  AN EXPECTATION OR HOPE OF
FUTURE ASSISTANCE CAN ARISE BECAUSE CONSTITUENTS HAVE INDICATED THAT
SUPPORT WILL BE FORTHCOMING IF THE MEMBER OF CONGRESS CHAMPIONS THEIR
POINT OF VIEW.  FINANCIAL SUPPORT MAY ALSO ARRIVE LATER FROM THOSE WHO
APPROVE OF A CONGRESSMAN'S CONDUCT AND HAVE AN EXPECTATION IT WILL
CONTINUE.  THUS, MUTUALITY OF SUPPORT BETWEEN LEGISLATOR AND
CONSTITUENT IS INEVITABLE.  CONSTITUENT CONTRIBUTIONS TO A CONGRESSMAN
AND HIS SUPPORT OF CONSTITUENT INTERESTS WILL REPEATEDLY COINCIDE IN
TIME OR CLOSELY FOLLOW ONE ANOTHER.  IT WILL BE THE RARE CONGRESSMAN
WHO NEVER ACCEPTS CAMPAIGN CONTRIBUTIONS FROM PERSONS OR INTERESTS
WHOSE VIEW HE HAS SUPPORTED OR WILL SUPPORT, BY SPEECH MAKING, VOTING,
OR BARGAINING WITH FELLOW LEGISLATORS. 

ALL OF THIS, OR MOST OF IT, MAY BE WHOLLY WITHIN THE LAW AND
CONSISTENT WITH CONTEMPORARY STANDARDS OF POLITICAL ETHICS. 
NEVERTHELESS, THE OPPORTUNITIES FOR AN EXECUTIVE, IN WHOSE SOLE
DISCRETION THE DECISION TO PROSECUTE RESTS UNDER THE STATUTE BEFORE US,
TO CLAIM THAT LEGISLATIVE CONDUCT HAS BEEN SOLD ARE OBVIOUS AND
UNDENIABLE.  THESE OPPORTUNITIES, INHERENT IN THE POLITICAL PROCESS AS
IT NOW EXISTS, CREATE AN ENORMOUS POTENTIAL FOR EXECUTIVE CONTROL OF
LEGISLATIVE BEHAVIOR BY THREATS OR SUGGESTIONS OF CRIMINAL PROSECUTION-
PRECISELY THE EVIL THAT THE SPEECH OR DEBATE CLAUSE WAS DESIGNED TO
PREVENT.     NEITHER THE MAJORITY OPINION NOR THE STATUTE UNDER WHICH
BREWSTER IS CHARGED DISTINGUISHES BETWEEN CAMPAIGN CONTRIBUTIONS AND
PAYMENTS DESIGNED FOR OR PUT TO PERSONAL USE.  TO ARM THE EXECUTIVE
WITH THE POWER TO PROSECUTE FOR TAKING POLITICAL CONTRIBUTIONS IN
RETURN FOR AN AGREEMENT TO INTRODUCE OR SUPPORT PARTICULAR LEGISLATION
OR POLICIES IS TO VEST ENORMOUS LEVERAGE IN THE EXECUTIVE AND THE
COURTS.  MEMBERS OF CONGRESS MAY FIND THEMSELVES IN THE DILEMMA OF
BEING FORCED TO CONDUCT THEMSELVES CONTRARY TO THE INTERESTS OF THOSE
WHO PROVIDE FINANCIAL SUPPORT OR DECLINING THAT SUPPORT.  THEY MAY ALSO
FEEL CONSTRAINED TO LISTEN LESS OFTEN TO THE ENTREATIES AND DEMANDS OF
POTENTIAL CONTRIBUTORS.  THE THREAT OF PROSECUTION FOR SUPPOSED
MISSTEPS THAT ARE DIFFICULT TO DEFINE AND FALL CLOSE TO THE LINE OF
WHAT ORDINARILY IS CONSIDERED PERMISSIBLE, EVEN NECESSARY, CONDUCT
SCARCELY ENSURES THAT LEGISLATIVE INDEPENDENCE THAT IS THE ROOT OF THE
SPEECH OR DEBATE CLAUSE. 

EVEN IF THE STATUTE AND THIS INDICTMENT WERE DEEMED LIMITED TO
PAYMENTS CLEARLY DESTINED FOR, OR ACTUALLY PUT TO, PERSONAL USE IN
EXCHANGE FOR A PROMISE TO PERFORM A LEGISLATIVE ACT, THE SPEECH OR
DEBATE CLAUSE WOULD STILL BE OFFENDED.  THE POTENTIAL FOR EXECUTIVE
HARASSMENT IS NOT DIMINISHED MERELY BECAUSE THE CONDUCT MADE CRIMINAL
IS MORE CLEARLY DEFINED.  A MEMBER OF CONGRESS BECOMES VULNERABLE TO
ABUSE EACH TIME HE MAKES A PROMISE TO A CONSTITUENT ON A MATTER OVER
WHICH HE HAS SOME DEGREE OF LEGISLATIVE POWER, AND THE POSSIBILITY OF
HARASSMENT CAN INHIBIT HIS EXERCISE OF POWER AS WELL AS HIS RELATIONS
WITH CONSTITUENTS.  IN ADDITION, SUCH A PROSECUTION PRESENTS THE
DIFFICULTY OF DEFINING WHEN MONEY OBTAINED BY A LEGISLATOR IS DESTINED
FOR OR HAS BEEN PUT TO PERSONAL USE.  FOR THE LEGISLATOR WHO USES BOTH
PERSONAL FUNDS AND CAMPAIGN CONTRIBUTIONS TO MAINTAIN HIMSELF IN
OFFICE, THE CHOICE OF WHICH TO DRAW UPON MAY HAVE MORE TO DO WITH
BOOKKEEPING THAN BRIBERY; YET ANY INTERCHANGE OF FUNDS WOULD CERTAINLY
RENDER HIS CONDUCT SUSPECT.  EVEN THOSE MEMBERS OF CONGRESS WHO KEEP
SEPARATE ACCOUNTS FOR CAMPAIGN CONTRIBUTIONS BUT RETAIN UNRESTRICTED
DRAWING RIGHTS WOULD REMAIN OPEN TO A CHARGE THAT THE MONEY WAS IN FACT
FOR PERSONAL USE.  IN BOTH CASES, THE POSSIBILITY OF A BRIBERY
PROSECUTION PRESENTS THE PROBLEM OF DETERMINING EXACTLY THOSE PURPOSES
FOR WHICH CAMPAIGN CONTRIBUTIONS CAN LEGITIMATELY BE USED.  THE
DIFFICULTY OF DRAWING WORKABLE LINES ENHANCES THE PROSPECTS FOR
EXECUTIVE CONTROL AND CORRESPONDINGLY DIMINISHES CONGRESSIONAL FREEDOM
OF ACTION. 

THE MAJORITY DOES NOT DENY THE POTENTIAL FOR EXECUTIVE CONTROL THAT
INHERES IN SANCTIONING THIS PROSECUTION.  INSTEAD, IT PURPORTS TO
DEFINE THE PROBLEM AWAY BY ASSERTING THAT THE SPEECH OR DEBATE CLAUSE
REACHES ONLY PROSECUTIONS FOR LEGISLATIVE CONDUCT AND THAT A PROMISE TO
VOTE FOR A BILL, AS DISTINGUISHED FROM THE VOTE ITSELF, DOES NOT AMOUNT
TO A LEGISLATIVE ACT.  THE IMPLICATION IS THAT A PROSECUTION BASED UPON
A CORRUPT PROMISE NO MORE OFFENDS THE SPEECH OR DEBATE CLAUSE THAN THE
PROSECUTION OF A CONGRESSMAN FOR ASSAULT, ROBBERY, OR MURDER.  THE
POWER TO PROSECUTE MAY THREATEN LEGISLATIVE INDEPENDENCE BUT THE
CONSTITUTION DOES NOT FOR THAT REASON FORBID IT.  I FIND THIS
UNPERSUASIVE. 

THE FACT THAT THE EXECUTIVE MAY PROSECUTE MEMBERS OF CONGRESS FOR
ORDINARY CRIMINAL CONDUCT, WHICH SURELY HE CAN DESPITE THE POTENTIAL
FOR INFLUENCING LEGISLATIVE CONDUCT, CANNOT ITSELF DEMONSTRATE THAT
PROSECUTIONS FOR CORRUPT PROMISES TO PERFORM LEGISLATIVE ACTS WOULD BE
EQUALLY CONSTITUTIONAL.  THE ARGUMENT PROVES TOO MUCH, FOR IT WOULD AS
SURELY AUTHORIZE PROSECUTIONS FOR THE LEGISLATIVE ACT ITSELF. 
MOREOVER, THERE IS A FUNDAMENTAL DIFFERENCE IN TERMS OF POTENTIAL ABUSE
BETWEEN PROSECUTIONS FOR ORDINARY CRIME AND THOSE BASED UPON A PROMISE
TO PERFORM A LEGISLATIVE ACT.  EVEN THE MOST VOCAL DETRACTOR OF
CONGRESS COULD NOT ACCURATELY MAINTAIN THAT THE EXECUTIVE WOULD OFTEN
HAVE CREDIBLE BASIS FOR ACCUSING A MEMBER OF CONGRESS OF MURDER, THEFT,
RAPE, OR OTHER SUCH CRIMES.  BUT THE PROSPECTS FOR ASSERTING AN
ARGUABLY VALID CLAIM ARE FAR WIDER IN SCOPE FOR AN EXECUTIVE PRONE TO
FISH IN LEGISLATIVE WATERS AND TO SEARCH FOR CORRELATIONS BETWEEN
LEGISLATIVE PERFORMANCE AND FINANCIAL SUPPORT.  THE POSSIBILITIES ARE
INDEED ENDLESS, AS IS THE POTENTIAL FOR ABUSE. 

THE MAJORITY IGNORES ANOTHER VITAL DIFFERENCE BETWEEN EXECUTIVE
AUTHORITY TO PROSECUTE FOR ORDINARY CRIME AND THE POWER TO CHALLENGE
UNDERTAKINGS OR CONSPIRACIES TO CORRUPT THE LEGISLATIVE PROCESS.  IN A
PROSECUTION FOR DRUNKEN DRIVING OR ASSAULT, THE MANNER IN WHICH A
CONGRESSMAN PERFORMED HIS LEGISLATIVE TASKS IS QUITE IRRELEVANT TO
EITHER PROSECUTION OR DEFENSE.  IN THE TRIAL OF A CONGRESSMAN FOR
MAKING A CORRUPT PROMISE TO VOTE, ON THE OTHER HAND, PROOF THAT HIS
VOTE WAS IN FACT CONTRARY TO THE TERMS OF THE ALLEGED BARGAIN WILL MAKE
A STRONG DEFENSE.  SEE UNITED STATES V. JOHNSON, 383 U.S.,AT 176-177. 
A CONGRESSMAN WHO KNOWS HE IS UNDER INVESTIGATION FOR A CORRUPT
UNDERTAKING WILL BE WELL ADVISED TO CONDUCT HIS AFFAIRS IN A MANNER
WHOLLY AT ODDS WITH THE THEORY OF THE CHARGE WHICH MAY BE LODGED
AGAINST HIM.  AS A PRACTICAL MATTER, TO PROSECUTE A CONGRESSMAN FOR
AGREEING TO ACCEPT MONEY IN EXCHANGE FOR A PROMISE TO PERFORM A
LEGISLATIVE ACT INHERENTLY IMPLICATES LEGISLATIVE CONDUCT.  AND TO
DIVINE A DISTINCTION BETWEEN PROMISE AND PERFORMANCE IS WHOLLY AT ODDS
WITH PROTECTING THAT LEGISLATIVE INDEPENDENCE THAT IS THE HEART OF THE
SPEECH OR DEBATE CLAUSE. 

CONGRESS ITSELF CLEARLY DID NOT MAKE THE DISTINCTION THAT THE
MAJORITY FINDS DISPOSITIVE.  THE STATUTE BEFORE US IS A COMPREHENSIVE
EFFORT TO SANITIZE THE LEGISLATIVE ENVIRONMENT.  IT EXPRESSLY PERMITS
PROSECUTIONS OF MEMBERS OF CONGRESS FOR VOTING OR PROMISING TO VOTE IN
EXCHANGE FOR MONEY.  THE STATUTE DOES NOT CONCERN ITSELF WITH MURDER OR
OTHER UNDERTAKINGS UNRELATED TO THE LEGISLATIVE PROCESS.  CONGRESS NO
DOUBT BELIEVED IT CONSISTENT WITH THE SPEECH OR DEBATE CLAUSE TO
AUTHORIZE EXECUTIVE PROSECUTIONS FOR CORRUPT VOTING.  EQUALLY OBVIOUS
IS THE FACT THAT CONGRESS DREW NO DISTINCTION IN LEGISLATIVE TERMS
BETWEEN PROSECUTIONS BASED UPON VOTING AND THOSE BASED UPON MOTIVATIONS
UNDERLYING LEGISLATIVE CONDUCT. 

THE ARGUMENTS THAT THE MAJORITY NOW EMBRACES WERE THE VERY
CONTENTIONS THAT THE GOVERNMENT MADE IN UNITED STATES V. JOHNSON,
SUPRA.  IN REJECTING THOSE ARGUMENTS ON THE FACTS OF THAT CASE, WHERE
LEGISLATIVE CONDUCT AS WELL AS A PRIOR CONSPIRACY FORMED A MAJOR PART
OF THE GOVERNMENT'S PROOF, THE COURT REFERRED WITH APPROVAL TO EX PARTE
WASON, L.R. 4 Q.B. 573 (1869), IN WHICH THE QUESTION WAS WHETHER
MEMBERS OF THE HOUSE OF LORDS COULD BE PROSECUTED FOR A CONSPIRACY TO
PREVENT PRESENTATION OF A PETITION ON THE FLOOR OF LORDS.  JOHNSON,
SUPRA, AT 183, SETS OUT THE REACTION OF THE ENGLISH COURT: 

"THE COURT DENIED THE MOTION, STATING THAT STATEMENTS MADE IN THE
HOUSE 'COULD NOT BE MADE THE FOUNDATION OF CIVIL OR CRIMINAL
PROCEEDINGS . . . . AND A CONSPIRACY TO MAKE SUCH STATEMENTS WOULD NOT
MAKE THE PERSON GUILTY OF IT AMENABLE TO THE CRIMINAL LAW.'  ID., AT
576.  (COCKBURN, C.J.)  MR. JUSTICE LUSH ADDED, 'I AM CLEARLY OF
OPINION THAT WE OUGHT NOT TO ALLOW IT TO BE DOUBTED FOR A MOMENT THAT
THE MOTIVES OR INTENTIONS OF MEMBERS OF EITHER HOUSE CANNOT BE INQUIRED
INTO BY CRIMINAL PROCEEDINGS WITH RESPECT TO ANYTHING THEY MAY DO OR
SAY IN THE HOUSE.'  ID., AT 577."  THE WASON COURT CLEARLY REFUSED TO
DISTINGUISH BETWEEN PROMISE AND PERFORMANCE; THE LEGISLATIVE PRIVILEGE
APPLIED TO BOTH.  MR. JUSTICE HARLAN, WRITING FOR THE COURT IN JOHNSON,
TOOK NO ISSUE WITH THIS POSITION.  INDEED, HE INDICATED THAT THE SPEECH
OR DEBATE CLAUSE BARRED ANY PROSECUTION UNDER A GENERAL STATUTE WHERE
THERE IS DRAWN IN QUESTION "THE LEGISLATIVE ACTS OF . . . THE MEMBER OF
CONGRESS OR HIS MOTIVES FOR PERFORMING THEM."  383 U.S.,AT 185.  I FIND
IT DIFFICULT TO BELIEVE THAT UNDER THE STATUTE THERE INVOLVED THE
JOHNSON COURT WOULD HAVE PERMITTED A PROSECUTION BASED UPON A PROMISE
TO PERFORM A LEGISLATIVE ACT. 

BECAUSE IT GIVES A BEGRUDGING INTERPRETATION TO THE CLAUSE, THE
MAJORITY FINDS IT CAN AVOID DEALING WITH THE POSITION UPON WHICH THE
GOVERNMENT PLACED PRINCIPAL RELIANCE IN ITS BRIEF IN THIS COURT. 
JOHNSON PUT ASIDE THE QUESTION WHETHER AN OTHERWISE IMPERMISSIBLE
PROSECUTION CONDUCTED PURSUANT TO A STATUTE SUCH AS WE NOW HAVE BEFORE
US-- A STATUTE SPECIFICALLY INCLUDING CONGRESSIONAL CONDUCT AND
PURPORTING TO BE AN EXERCISE OF CONGRESSIONAL POWER TO DISCIPLINE ITS
MEMBERS-- WOULD BE CONSISTENT WITH THE SPEECH OR DEBATE CLAUSE.  AS
MUST BE APPARENT FROM WHAT SO FAR HAS BEEN SAID, I AM CONVINCED THAT
SUCH A STATUTE CONTRAVENES THE LETTER AND PURPOSE OF THE CLAUSE.  TRUE,
CONGRESS ITSELF HAS DEFINED THE CRIME AND SPECIFICALLY DELEGATED TO THE
EXECUTIVE THE DISCRETION TO PROSECUTE AND TO THE COURTS THE POWER TO
TRY.  NONETHELESS, I FAIL TO UNDERSTAND HOW A MAJORITY OF CONGRESS CAN
BIND AN OBJECTING CONGRESSMAN TO A COURSE SO CLEARLY AT ODDS WITH THE
CONSTITUTIONAL COMMAND THAT LEGISLATIVE CONDUCT SHALL BE SUBJECT TO
QUESTION IN NO PLACE OTHER THAN THE SENATE OR THE HOUSE OF
REPRESENTATIVES.  THE SPEECH OR DEBATE CLAUSE IS AN ALLOCATION OF
POWER.  IT AUTHORIZES CONGRESS TO CALL OFFENDING MEMBERS TO ACCOUNT IN
THEIR APPROPRIATE HOUSES.  A STATUTE THAT REPRESENTS AN ABDICATION OF
THAT POWER IS IN MY VIEW IMPERMISSIBLE. 

I RETURN TO THE BEGINNING.  THE SPEECH OR DEBATE CLAUSE DOES NOT
IMMUNIZE CORRUPT CONGRESSMEN.  IT RESERVES THE POWER TO DISCIPLINE IN
THE HOUSES OF CONGRESS.  I WOULD INSIST THAT THOSE HOUSES DEVELOP THEIR
OWN INSTITUTIONS AND PROCEDURES FOR DEALING WITH THOSE IN THEIR MIDST
WHO WOULD PROSTITUTE THE LEGISLATIVE PROCESS. 

/1/  IN GRAVEL V. UNITED STATES, POST, P. 606, IT IS HELD THAT THE
SPEECH OR DEBATE CLAUSE DOES NOT IMMUNIZE CRIMINAL ACTS PERFORMED IN
PREPARATION FOR OR EXECUTION OF A LEGISLATIVE ACT.  BUT THE UNPROTECTED
ACTS REFERRED TO THERE WERE CRIMINAL IN THEMSELVES, PROVABLE WITHOUT
REFERENCE TO A LEGISLATIVE ACT AND WITHOUT PUTTING THE DEFENDANT MEMBER
TO THE TASK OF DEFENDING THE INTEGRITY OF HIS LEGISLATIVE PERFORMANCE. 
HERE, AS STATED, THE CRIME CHARGED NECESSARILY IMPLICATES THE MEMBER'S
LEGISLATIVE DUTIES. 

SOLICITOR GENERAL GRISWOLD REARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS ON THE ORIGINAL ARGUMENT WERE ASSISTANT
ATTORNEY GENERAL WILSON, JEROME M. FEIT, AND BEATRICE ROSENBERG.  WITH
HIM ON THE BRIEF ON THE REARGUMENT WERE ASSISTANT ATTORNEY GENERAL
PETERSEN AND MR. FEIT. 

NORMAN P. RAMSEY REARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEFS WERE THOMAS WAXTER, JR., AND H. THOMAS HOWELL. 
..END :

















BOARD OF REGENTS V. ROTH, 408 U.S. 564 


       BOARD OF REGENTS OF STATE COLLEGES ET AL. V. ROTH

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 71-162.  ARGUED JANUARY 18, 1972-- DECIDED JUNE 29,

           1972 


RESPONDENT, HIRED FOR A FIXED TERM OF ONE ACADEMIC YEAR TO TEACH AT A
STATE UNIVERSITY, WAS INFORMED WITHOUT EXPLANATION THAT HE WOULD NOT BE
REHIRED FOR THE ENSUING YEAR.  A STATUTE PROVIDED THAT ALL STATE
UNIVERSITY TEACHERS WOULD BE EMPLOYED INITIALLY ON PROBATION AND THAT
ONLY AFTER FOUR YEARS' CONTINUOUS SERVICE WOULD TEACHERS ACHIEVE
PERMANENT EMPLOYMENT "DURING EFFICIENCY AND GOOD BEHAVIOR," WITH
PROCEDURAL PROTECTION AGAINST SEPARATION.  UNIVERSITY RULES GAVE A
NONTENURED TEACHER "DISMISSED" BEFORE THE END OF THE YEAR SOME
OPPORTUNITY FOR REVIEW OF THE "DISMISSAL," BUT PROVIDED THAT NO REASON
NEED BE GIVEN FOR NONRETENTION OF A NONTENURED TEACHER, AND NO
STANDARDS WERE SPECIFIED FOR RE-EMPLOYMENT.  RESPONDENT BROUGHT THIS
ACTION CLAIMING DEPRIVATION OF HIS FOURTEENTH AMENDMENT RIGHTS,
ALLEGING INFRINGEMENT OF (1) HIS FREE SPEECH RIGHT BECAUSE THE TRUE
REASON FOR HIS NONRETENTION WAS HIS CRITICISM OF THE UNIVERSITY
ADMINISTRATION, AND (2) HIS PROCEDURAL DUE PROCESS RIGHT BECAUSE OF THE
UNIVERSITY'S FAILURE TO ADVISE HIM OF THE REASON FOR ITS DECISION.  THE
DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR THE RESPONDENT ON THE
PROCEDURAL ISSUE.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE
FOURTEENTH AMENDMENT DOES NOT REQUIRE OPPORTUNITY FOR A HEARING PRIOR
TO THE NONRENEWAL OF A NONTENURED STATE TEACHER'S CONTRACT, UNLESS HE
CAN SHOW THAT THE NONRENEWAL DEPRIVED HIM OF AN INTEREST IN "LIBERTY"
OR THAT HE HAD A "PROPERTY" INTEREST IN CONTINUED EMPLOYMENT, DESPITE
THE LACK OF TENURE OR A FORMAL CONTRACT.  HERE THE NONRETENTION OF
RESPONDENT, ABSENT ANY CHARGES AGAINST HIM OR STIGMA OR DISABILITY
FORECLOSING OTHER EMPLOYMENT, IS NOT TANTAMOUNT TO A DEPRIVATION OF
"LIBERTY," AND THE TERMS OF RESPONDENT'S EMPLOYMENT ACCORDED HIM NO
"PROPERTY" INTEREST PROTECTED BY PROCEDURAL DUE PROCESS.  THE COURTS
BELOW THEREFORE ERRED IN GRANTING SUMMARY JUDGMENT FOR THE RESPONDENT
ON THE PROCEDURAL DUE PROCESS ISSUE.  PP. 569-579. 

446 F.2D 806, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  BURGER, C.J.,
FILED A CONCURRING OPINION, POST, P. 603.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 579.  BRENNAN, J., FILED A DISSENTING
OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P. 604.  MARSHALL, J.,
FILED A DISSENTING OPINION, POST, P. 587.  POWELL, J., TOOK NO PART IN
THE DECISION OF THE CASE. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1968 THE RESPONDENT, DAVID ROTH, WAS HIRED FOR HIS FIRST TEACHING
JOB AS ASSISTANT PROFESSOR OF POLITICAL SCIENCE OF WISCONSIN STATE
UNIVERSITY-OSHKOSH.  HE WAS HIRED FOR A FIXED TERM OF ONE ACADEMIC
YEAR.  THE NOTICE OF HIS FACULTY APPOINTMENT SPECIFIED THAT HIS
EMPLOYMENT WOULD BEGIN ON SEPTEMBER 1, 1968, AND WOULD END ON JUNE 30,
1969.  /1/  THE RESPONDENT COMPLETED THAT TERM.  BUT HE WAS INFORMED
THAT HE WOULD NOT BE REHIRED FOR THE NEXT ACADEMIC YEAR. 

THE RESPONDENT HAD NO TENURE RIGHTS TO CONTINUED EMPLOYMENT.  UNDER
WISCONSIN STATUTORY LAW A STATE UNIVERSITY TEACHER CAN ACQUIRE TENURE
AS A "PERMANENT" EMPLOYEE ONLY AFTER FOUR YEARS OF YEAR-TO-YEAR
EMPLOYMENT.  HAVING ACQUIRED TENURE, A TEACHER IS ENTITLED TO CONTINUED
EMPLOYMENT "DURING EFFICIENCY AND GOOD BEHAVIOR."  A RELATIVELY NEW
TEACHER WITHOUT TENURE, HOWEVER, IS UNDER WISCONSIN LAW ENTITLED TO
NOTHING BEYOND HIS ONE-YEAR APPOINTMENT.  /2/  THERE ARE NO STATUTORY
OR ADMINISTRATIVE STANDARDS DEFINING ELIGIBILITY FOR RE-EMPLOYMENT. 
STATE LAW THUS CLEARLY LEAVES THE DECISION WHETHER TO REHIRE A
NONTENURED TEACHER FOR ANOTHER YEAR TO THE UNFETTERED DISCRETION OF
UNIVERSITY OFFICIALS. 

THE PROCEDURAL PROTECTION AFFORDED A WISCONSIN STATE UNIVERSITY
TEACHER BEFORE HE IS SEPARATED FROM THE UNIVERSITY CORRESPONDS TO HIS
JOB SECURITY.  AS A MATTER OF STATUTORY LAW, A TENURED TEACHER CANNOT
BE "DISCHARGED EXCEPT FOR CAUSE UPON WRITTEN CHARGES" AND PURSUANT TO
CERTAIN PROCEDURES.  /3/  A NONTENURED TEACHER, SIMILARLY, IS PROTECTED
TO SOME EXTENT DURING HIS ONE-YEAR TERM.  RULES PROMULGATED BY THE
BOARD OF REGENTS PROVIDE THAT A NONTENURED TEACHER "DISMISSED" BEFORE
THE END OF THE YEAR MAY HAVE SOME OPPORTUNITY FOR REVIEW OF THE
"DISMISSAL."  BUT THE RULES PROVIDE NO REAL PROTECTION FOR A NONTENURED
TEACHER WHO SIMPLY IS NOT RE-EMPLOYED FOR THE NEXT YEAR.  HE MUST BE
INFORMED BY FEBRUARY 1 "CONCERNING RETENTION OR NON-RETENTION FOR THE
ENSUING YEAR."  BUT "NO REASON FOR NON-RETENTION NEED BE GIVEN.  NO
REVIEW OR APPEAL IS PROVIDED IN SUCH CASE."  /4/ 

IN CONFORMANCE WITH THESE RULES, THE PRESIDENT OF WISCONSIN STATE
UNIVERSITY-OSHKOSH INFORMED THE RESPONDENT BEFORE FEBRUARY 1, 1969,
THAT HE WOULD NOT BE REHIRED FOR THE 1969-1970 ACADEMIC YEAR.  HE GAVE
THE RESPONDENT NO REASON FOR THE DECISION AND NO OPPORTUNITY TO
CHALLENGE IT AT ANY SORT OF HEARING. 

THE RESPONDENT THEN BROUGHT THIS ACTION IN FEDERAL DISTRICT COURT
ALLEGING THAT THE DECISION NOT TO REHIRE HIM FOR THE NEXT YEAR
INFRINGED HIS FOURTEENTH AMENDMENT RIGHTS.  HE ATTACKED THE DECISION
BOTH IN SUBSTANCE AND PROCEDURE.  FIRST, HE ALLEGED THAT THE TRUE
REASON FOR THE DECISION WAS TO PUNISH HIM FOR CERTAIN STATEMENTS
CRITICAL OF THE UNIVERSITY ADMINISTRATION, AND THAT IT THEREFORE
VIOLATED HIS RIGHT TO FREEDOM OF SPEECH.  /5/  SECOND, HE ALLEGED THAT
THE FAILURE OF UNIVERSITY OFFICIALS TO GIVE HIM NOTICE OF ANY REASON
FOR NONRETENTION AND AN OPPORTUNITY FOR A HEARING VIOLATED HIS RIGHT TO
PROCEDURAL DUE PROCESS OF LAW. 

THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR THE RESPONDENT ON
THE PROCEDURAL ISSUE, ORDERING THE UNIVERSITY OFFICIALS TO PROVIDE HIM
WITH REASONS AND A HEARING.  310 F.SUPP.  972.  THE COURT OF APPEALS,
WITH ONE JUDGE DISSENTING, AFFIRMED THIS PARTIAL SUMMARY JUDGMENT.  446
F.2D 806.  WE GRANTED CERTIORARI.  404 U.S. 909.  THE ONLY QUESTION
PRESENTED TO US AT THIS STAGE IN THE CASE IS WHETHER THE RESPONDENT HAD
A CONSTITUTIONAL RIGHT TO A STATEMENT OF REASONS AND A HEARING ON THE
UNIVERSITY'S DECISION NOT TO REHIRE HIM FOR ANOTHER YEAR.  /6/  WE HOLD
THAT HE DID NOT. 

        I 

THE REQUIREMENTS OF PROCEDURAL DUE PROCESS APPLY ONLY TO THE
DEPRIVATION OF INTERESTS ENCOMPASSED BY THE FOURTEENTH AMENDMENT'S
PROTECTION OF LIBERTY AND PROPERTY.  WHEN PROTECTED INTERESTS ARE
IMPLICATED, THE RIGHT TO SOME KIND OF PRIOR HEARING IS PARAMOUNT.  /7/
BUT THE RANGE OF INTERESTS PROTECTED BY PROCEDURAL DUE PROCESS IS NOT
INFINITE. 

THE DISTRICT COURT DECIDED THAT PROCEDURAL DUE PROCESS GUARANTEES
APPLY IN THIS CASE BY ASSESSING AND BALANCING THE WEIGHTS OF THE
PARTICULAR INTERESTS INVOLVED.  IT CONCLUDED THAT THE RESPONDENT'S
INTEREST IN RE-EMPLOYMENT AT WISCONSIN STATE UNIVERSITY-OSHKOSH
OUTWEIGHED THE UNIVERSITY'S INTEREST IN DENYING HIM RE-EMPLOYMENT
SUMMARILY.  310 F.SUPP.,AT 977-979.  UNDENIABLY, THE RESPONDENT'S RE
EMPLOYMENT PROSPECTS WERE OF MAJOR CONCERN TO HIM-- CONCERN THAT WE
SURELY CANNOT SAY WAS INSIGNIFICANT.  AND A WEIGHING PROCESS HAS LONG
BEEN A PART OF ANY DETERMINATION OF THE FORM OF HEARING REQUIRED IN
PARTICULAR SITUATIONS BY PROCEDURAL DUE PROCESS.  /8/  BUT, TO
DETERMINE WHETHER DUE PROCESS REQUIREMENTS APPLY IN THE FIRST PLACE, WE
MUST LOOK NOT TO THE "WEIGHT" BUT TO THE NATURE OF THE INTEREST AT
STAKE.  SEE MORRISSEY V. BREWER, ANTE, AT 481.  WE MUST LOOK TO SEE IF
THE INTEREST IS WITHIN THE FOURTEENTH AMENDMENT'S PROTECTION OF LIBERTY
AND PROPERTY. 

"LIBERTY" AND "PROPERTY" ARE BROAD AND MAJESTIC TERMS.  THEY ARE
AMONG THE "(GREAT (CONSTITUTIONAL) CONCEPTS . . . PURPOSELY LEFT TO
GATHER MEANING FROM EXPERIENCE . . . (THEY RELATE TO THE WHOLE DOMAIN
OF SOCIAL AND ECONOMIC FACT, AND THE STATESMEN WHO FOUNDED THIS NATION
KNEW TOO WELL THAT ONLY A STAGNANT SOCIETY REMAINS UNCHANGED." 
NATIONAL INS. CO. V. TIDEWATER CO., 337 U.S. 582, 646 (FRANKFURTER, J.,
DISSENTING).  FOR THAT REASON, THE COURT HAS FULLY AND FINALLY REJECTED
THE WOODEN DISTINCTION BETWEEN "RIGHTS" AND "PRIVILEGES" THAT ONCE
SEEMED TO GOVERN THE APPLICABILITY OF PROCEDURAL DUE PROCESS RIGHTS. 
/9/  THE COURT HAS ALSO MADE CLEAR THAT THE PROPERTY INTERESTS
PROTECTED BY PROCEDURAL DUE PROCESS EXTEND WELL BEYOND ACTUAL OWNERSHIP
OF REAL ESTATE, CHATTELS, OR MONEY.  /10/  BY THE SAME TOKEN, THE COURT
HAS REQUIRED DUE PROCESS PROTECTION FOR DEPRIVATIONS OF LIBERTY BEYOND
THE SORT OF FORMAL CONSTRAINTS IMPOSED BY THE CRIMINAL PROCESS.  /11/ 

YET, WHILE THE COURT HAS ESCHEWED RIGID OR FORMALISTIC LIMITATIONS
ON THE PROTECTION OF PROCEDURAL DUE PROCESS, IT HAS AT THE SAME TIME
OBSERVED CERTAIN BOUNDARIES.  FOR THE WORDS "LIBERTY" AND "PROPERTY" IN
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT MUST BE GIVEN SOME
MEANING. 

        II 

"WHILE THIS COURT HAS NOT ATTEMPTED TO DEFINE WITH EXACTNESS THE
LIBERTY . . . GUARANTEED (BY THE FOURTEENTH AMENDMENT), THE TERM HAS
RECEIVED MUCH CONSIDERATION AND SOME OF THE INCLUDED THINGS HAVE BEEN
DEFINITELY STATED.  WITHOUT DOUBT, IT DENOTES NOT MERELY FREEDOM FROM
BODILY RESTRAINT BUT ALSO THE RIGHT OF THE INDIVIDUAL TO CONTRACT, TO
ENGAGE IN ANY OF THE COMMON OCCUPATIONS OF LIFE, TO ACQUIRE USEFUL
KNOWLEDGE, TO MARRY, ESTABLISH A HOME AND BRING UP CHILDREN, TO WORSHIP
GOD ACCORDING TO THE DICTATES OF HIS OWN CONSCIENCE, AND GENERALLY TO
ENJOY THOSE PRIVILEGES LONG RECOGNIZED . . . AS ESSENTIAL TO THE
ORDERLY PURSUIT OF HAPPINESS BY FREE MEN."  MEYER V. NEBRASKA, 262 U.S.
390, 399.  IN A CONSTITUTION FOR A FREE PEOPLE, THERE CAN BE NO DOUBT
THAT THE MEANING OF "LIBERTY" MUST BE BROAD INDEED.  SEE, E.G., BOLLING
V. SHARPE, 347 U.S. 497, 499-500; STANLEY V. ILLINOIS, 405 U.S. 645. 

THERE MIGHT BE CASES IN WHICH A STATE REFUSED TO RE-EMPLOY A PERSON
UNDER SUCH CIRCUMSTANCES THAT INTERESTS IN LIBERTY WOULD BE
IMPLICATED.  BUT THIS IS NOT SUCH A CASE. 

THE STATE, IN DECLINING TO REHIRE THE RESPONDENT, DID NOT MAKE ANY
CHARGE AGAINST HIM THAT MIGHT SERIOUSLY DAMAGE HIS STANDING AND
ASSOCIATIONS IN HIS COMMUNITY.  IT DID NOT BASE THE NONRENEWAL OF HIS
CONTRACT ON A CHARGE, FOR EXAMPLE, THAT HE HAD BEEN GUILTY OF
DISHONESTY, OR IMMORALITY.  HAD IT DONE SO, THIS WOULD BE A DIFFERENT
CASE.  FOR "(WHERE A PERSON'S GOOD NAME, REPUTATION, HONOR, OR
INTEGRITY IS AT STAKE BECAUSE OF WHAT THE GOVERNMENT IS DOING TO HIM,
NOTICE AND AN OPPORTUNITY TO BE HEARD ARE ESSENTIAL."  WISCONSIN V.
CONSTANTINEAU, 400 U.S. 433, 437.  WIEMAN V. UPDEGRAFF, 344 U.S. 183,
191; JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123;
UNITED STATES V. LOVETT, 328 U.S. 303, 316-317; PETERS V. HOBBY, 349
U.S. 331, 352 (DOUGLAS, J., CONCURRING).  SEE CAFETERIA WORKERS V.
MCELROY, 367 U.S. 886, 898.  IN SUCH A CASE, DUE PROCESS WOULD ACCORD
AN OPPORTUNITY TO REFUTE THE CHARGE BEFORE UNIVERSITY OFFICIALS.  /12/
IN THE PRESENT CASE, HOWEVER, THERE IS NO SUGGESTION WHATEVER THAT THE
RESPONDENT'S "GOOD NAME, REPUTATION, HONOR, OR INTEGRITY" IS AT STAKE. 

SIMILARLY, THERE IS NO SUGGESTION THAT THE STATE, IN DECLINING TO RE
EMPLOY THE RESPONDENT, IMPOSED ON HIM A STIGMA OR OTHER DISABILITY THAT
FORECLOSED HIS FREEDOM TO TAKE ADVANTAGE OF OTHER EMPLOYMENT
OPPORTUNITIES.  THE STATE, FOR EXAMPLE, DID NOT INVOKE ANY REGULATIONS
TO BAR THE RESPONDENT FROM ALL OTHER PUBLIC EMPLOYMENT IN STATE
UNIVERSITIES.  HAD IT DONE SO, THIS, AGAIN, WOULD BE A DIFFERENT CASE. 
FOR "(TO BE DEPRIVED NOT ONLY OF PRESENT GOVERNMENT EMPLOYMENT BUT OF
FUTURE OPPORTUNITY FOR IT CERTAINLY IS NO SMALL INJURY . . . . "  JOINT
ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, SUPRA, AT 185 (JACKSON, J.,
CONCURRING).  SEE TRUAX V. RAICH, 239 U.S. 33, 41.  THE COURT HAS HELD,
FOR EXAMPLE, THAT A STATE, IN REGULATING ELIGIBILITY FOR A TYPE OF
PROFESSTIONAL EMPLOYMENT, CANNOT FORECLOSE A RANGE OF OPPORTUNITIES "IN
A MANNER . . . THAT CONTRAVENES) . . . DUE PROCESS," SCHWARE V. BOARD
OF BAR EXAMINERS, 353 U.S. 232, 238, AND, SPECIFICALLY, IN A MANNER
THAT DENIES THE RIGHT TO A FULL PRIOR HEARING.  WILLNER V. COMMITTEE ON
CHARACTER, 373 U.S. 96, 103.  SEE CAFETERIA WORKERS V. MCELROY, SUPRA,
AT 898.  IN THE PRESENT CASE, HOWEVER, THIS PRINCIPLE DOES NOT COME
INTO PLAY.  /13/ 

TO BE SURE, THE RESPONDENT HAS ALLEGED THAT THE NONRENEWAL OF HIS
CONTRACT WAS BASED ON HIS EXERCISE OF HIS RIGHT TO FREEDOM OF SPEECH. 
BUT THIS ALLEGATION IS NOT NOW BEFORE US.  THE DISTRICT COURT STAYED
PROCEEDINGS ON THIS ISSUE, AND THE RESPONDENT HAS YET TO PROVE THAT THE
DECISION NOT TO REHIRE HIM WAS, IN FACT, BASED ON HIS FREE SPEECH
ACTIVITIES.  /14/ 

HENCE, ON THE RECORD BEFORE US, ALL THAT CLEARLY APPEARS IS THAT THE
RESPONDENT WAS NOT REHIRED FOR ONE YEAR AT ONE UNIVERSITY.  IT
STRETCHES THE CONCEPT TOO FAR TO SUGGEST THAT A PERSON IS DEPRIVED OF
"LIBERTY" WHEN HE SIMPLY IS NOT REHIRED IN ONE JOB BUT REMAINS AS FREE
AS BEFORE TO SEEK ANOTHER.  CAFETERIA WORKERS V. MCELROY, SUPRA, AT 895
896. 

        III 

THE FOURTEENTH AMENDMENT'S PROCEDURAL PROTECTION OF PROPERTY IS A
SAFEGUARD OF THE SECURITY OF INTERESTS THAT A PERSON HAS ALREADY
ACQUIRED IN SPECIFIC BENEFITS.  THESE INTERESTS-- PROPERTY INTERESTS--
MAY TAKE MANY FORMS. 

THUS, THE COURT HAS HELD THAT A PERSON RECEIVING WELFARE BENEFITS
UNDER STATUTORY AND ADMINISTRATIVE STANDARDS DEFINING ELIGIBILITY FOR
THEM HAS AN INTEREST IN CONTINUED RECEIPT OF THOSE BENEFITS THAT IS
SAFEGUARDED BY PROCEDURAL DUE PROCESS.  GOLDBERG V. KELLY, 397 U.S.
254.  /15/  SEE FLEMMING V. NESTOR, 363 U.S. 603, 611.  SIMILARLY, IN
THE AREA OF PUBLIC EMPLOYMENT, THE COURT HAS HELD THAT A PUBLIC COLLEGE
PROFESSOR DISMISSED FROM AN OFFICE HELD UNDER TENURE PROVISIONS,
SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551, AND COLLEGE PROFESSORS
AND STAFF MEMBERS DISMISSED DURING THE TERMS OF THEIR CONTRACTS, WIEMAN
V. UPDEGRAFF, 344 U.S. 183, HAVE INTERESTS IN CONTINUED EMPLOYMENT THAT
ARE SAFEGUARDED BY DUE PROCESS.  ONLY LAST YEAR, THE COURT HELD THAT
THIS PRINCIPLE "PROSCRIBING SUMMARY DISMISSAL FROM PUBLIC EMPLOYMENT
WITHOUT HEARING OR INQUIRY REQUIRED BY DUE PROCESS" ALSO APPLIED TO A
TEACHER RECENTLY HIRED WITHOUT TENURE OR A FORMAL CONTRACT, BUT
NONETHELESS WITH A CLEARLY IMPLIED PROMISE OF CONTINUED EMPLOYMENT. 
CONNELL V. HIGGINBOTHAM, 403 U.S. 207, 208. 

CERTAIN ATTRIBUTES OF "PROPERTY" INTERESTS PROTECTED BY PROCEDURAL
DUE PROCESS EMERGE FROM THESE DECISIONS.  TO HAVE A PROPERTY INTEREST
IN A BENEFIT, A PERSON CLEARLY MUST HAVE MORE THAN AN ABSTRACT NEED OR
DESIRE FOR IT.  HE MUST HAVE MORE THAN A UNILATERAL EXPECTATION OF IT.
HE MUST, INSTEAD, HAVE A LEGITIMATE CLAIM OF ENTITLEMENT TO IT.  IT IS
A PURPOSE OF THE ANCIENT INSTITUTION OF PROPERTY TO PROTECT THOSE
CLAIMS UPON WHICH PEOPLE RELY IN THEIR DAILY LIVES, RELIANCE THAT MUST
NOT BE ARBITRARILY UNDERMINED.  IT IS A PURPOSE OF THE CONSTITUTIONAL
RIGHT TO A HEARING TO PROVIDE AN OPPORTUNITY FOR A PERSON TO VINDICATE
THOSE CLAIMS. 

PROPERTY INTERESTS, OF COURSE, ARE NOT CREATED BY THE CONSTITUTION. 
RATHER, THEY ARE CREATED AND THEIR DIMENSIONS ARE DEFINED BY EXISTING
RULES OR UNDERSTANDINGS THAT STEM FROM AN INDEPENDENT SOURCE SUCH AS
STATE LAW-- RULES OR UNDERSTANDINGS THAT SECURE CERTAIN BENEFITS AND
THAT SUPPORT CLAIMS OF ENTITLEMENT TO THOSE BENEFITS.  THUS, THE
WELFARE RECIPIENTS IN GOLDBERG V. KELLY, SUPRA, HAD A CLAIM OF
ENTITLEMENT TO WELFARE PAYMENTS THAT WAS GROUNDED IN THE STATUTE
DEFINING ELIGIBILITY FOR THEM.  THE RECIPIENTS HAD NOT YET SHOWN THAT
THEY WERE, IN FACT, WITHIN THE STATUTORY TERMS OF ELIGIBILITY.  BUT WE
HELD THAT THEY HAD A RIGHT TO A HEARING AT WHICH THEY MIGHT ATTEMPT TO
DO SO. 

JUST AS THE WELFARE RECIPIENTS'"PROPERTY" INTEREST IN WELFARE
PAYMENTS WAS CREATED AND DEFINED BY STATUTORY TERMS, SO THE
RESPONDENT'S "PROPERTY" INTEREST IN EMPLOYMENT AT WISCONSIN STATE
UNIVERSITY-OSHKOSH WAS CREATED AND DEFINED BY THE TERMS OF HIS
APPOINTMENT.  THOSE TERMS SECURED HIS INTEREST IN EMPLOYMENT UP TO JUNE
30, 1969.  BUT THE IMPORTANT FACT IN THIS CASE IS THAT THEY
SPECIFICALLY PROVIDED THAT THE RESPONDENT'S EMPLOYMENT WAS TO TERMINATE
ON JUNE 30.  THEY DID NOT PROVIDE FOR CONTRACT RENEWAL ABSENT
"SUFFICIENT CAUSE."  INDEED, THEY MADE NO PROVISION FOR RENEWAL
WHATSOEVER.     THUS, THE TERMS OF THE RESPONDENT'S APPOINTMENT SECURED
ABSOLUTELY NO INTEREST IN RE-EMPLOYMENT FOR THE NEXT YEAR.  THEY
SUPPORTED ABSOLUTELY NO POSSIBLE CLAIM OF ENTITLEMENT TO RE
EMPLOYMENT.  NOR, SIGNIFICANTLY, WAS THERE ANY STATE STATUTE OR
UNIVERSITY RULE OR POLICY THAT SECURED HIS INTEREST IN RE-EMPLOYMENT OR
THAT CREATED ANY LEGITIMATE CLAIM TO IT.  /16/  IN THESE CIRCUMSTANCES,
THE RESPONDENT SURELY HAD AN ABSTRACT CONCERN IN BEING REHIRED, BUT HE
DID NOT HAVE A PROPERTY INTEREST SUFFICIENT TO REQUIRE THE UNIVERSITY
AUTHORITIES TO GIVE HIM A HEARING WHEN THEY DECLINED TO RENEW HIS
CONTRACT OF EMPLOYMENT. 

    IV 

OUR ANALYSIS OF THE RESPONDENT'S CONSTITUTIONAL RIGHTS IN THIS CASE
IN NO WAY INDICATES A VIEW THAT AN OPPORTUNITY FOR A HEARING OR A
STATEMENT OF REASONS FOR NONRETENTION WOULD, OR WOULD NOT, BE
APPROPRIATE OR WISE IN PUBLIC COLLEGES AND UNIVERSITIES.  /17/  FOR IT
IS A WRITTEN CONSTITUTION THAT WE APPLY.  OUR ROLE IS CONFINED TO
INTERPRETATION OF THAT CONSTITUTION. 

WE MUST CONCLUDE THAT THE SUMMARY JUDGMENT FOR THE RESPONDENT SHOULD
NOT HAVE BEEN GRANTED, SINCE THE RESPONDENT HAS NOT SHOWN THAT HE WAS
DEPRIVED OF LIBERTY OR PROPERTY PROTECTED BY THE FOURTEENTH AMENDMENT. 
THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

    IT IS SO ORDERED. 

/1/  THE RESPONDENT HAD NO CONTRACT OF EMPLOYMENT.  RATHER, HIS
FORMAL NOTICE OF APPOINTMENT WAS THE EQUIVALENT OF AN EMPLOYMENT
CONTRACT. 

THE NOTICE OF HIS APPOINTMENT PROVIDED THAT:  "DAVID F. ROTH IS
HEREBY APPOINTED TO THE FACULTY OF THE WISCONSIN STATE UNIVERSITY
POSITION NUMBER 0262.  (LOCATION:) OSHKOSH AS (RANK:) ASSISTANT
PROFESSOR OF (DEPARTMENT:) POLITICAL SCIENCE THIS (DATE:) FIRST DAY OF
(MONTH:) SEPTEMBER (YEAR:) 1968."  THE NOTICE WENT ON TO SPECIFY THAT
THE RESPONDENT'S "APPOINTMENT BASIS" WAS FOR THE "ACADEMIC YEAR."  AND
IT PROVIDED THAT "(REGULATIONS GOVERNING TENURE ARE IN ACCORD WITH
CHAPTER 37.31, WISCONSIN STATUTES.  THE EMPLOYMENT OF ANY STAFF MEMBER
FOR AN ACADEMIC YEAR SHALL NOT BE FOR A TERM BEYOND JUNE 30TH OF THE
FISCAL YEAR IN WHICH THE APPOINTMENT IS MADE."  SEE N. 2, INFRA. 

/2/  WIS. STAT. SEC. 37.31(1) (1967), IN FORCE AT THE TIME, PROVIDED
IN PERTINENT PART THAT: 

"ALL TEACHERS IN ANY STATE UNIVERSITY SHALL INITIALLY BE EMPLOYED ON
PROBATION.  THE EMPLOYMENT SHALL BE PERMANENT, DURING EFFICIENCY AND
GOOD BEHAVIOR AFTER 4 YEARS OF CONTINUOUS SERVICE IN THE STATE
UNIVERSITY SYSTEM AS A TEACHER." 

/3/  WIS. STAT. SEC. 37.31(1) FURTHER PROVIDED THAT: 

"NO TEACHER WHO HAS BECOME PERMANENTLY EMPLOYED AS HEREIN PROVIDED
SHALL BE DISCHARGED EXCEPT FOR CAUSE UPON WRITTEN CHARGES.  WITHIN 30
DAYS OF RECEIVING THE WRITTEN CHARGES, SUCH TEACHER MAY APPEAL THE
DISCHARGE BY A WRITTEN NOTICE TO THE PRESIDENT OF THE BOARD OF REGENTS
OF STATE COLLEGES.  THE BOARD SHALL CAUSE THE CHARGES TO BE
INVESTIGATED, HEAR THE CASE AND PROVIDE SUCH TEACHER WITH A WRITTEN
STATEMENT AS TO THEIR DECISION." 

/4/  THE RULES, PROMULGATED BY THE BOARD OF REGENTS IN 1967,
PROVIDE: 

"RULE I-- FEBURARY FIRST IS ESTABLISHED THROUGHOUT THE STATE
UNIVERSITY SYSTEM AS THE DEADLINE FOR WRITTEN NOTIFICATION OF NON
TENURED FACULTY CONCERNING RETENTION OR NON-RETENTION FOR THE ENSUING
YEAR.  THE PRESIDENT OF EACH UNIVERSITY SHALL GIVE SUCH NOTICE EACH
YEAR ON OR BEFORE THIS DATE." 

"RULE II-- DURING THE TIME A FACULTY MEMBER IS ON PROBATION, NO
REASON FOR NON-RETENTION NEED BE GIVEN.  NO REVIEW OR APPEAL IS
PROVIDED IN SUCH CASE. 

"RULE III-- 'DISMISSAL' AS OPPOSED TO 'NON-RETENTION' MEANS
TERMINATION OF RESPONSIBILITIES DURING AN ACADEMIC YEAR.  WHEN A NON
TENURE FACULTY MEMBER IS DISMISSED HE HAS NO RIGHT UNDER WISCONSIN
STATUTES TO A REVIEW OF HIS CASE OR TO APPEAL.  THE PRESIDENT MAY,
HOWEVER, IN HIS DISCRETION, GRANT A REQUEST FOR A REVIEW WITHIN THE
INSTITUTION, EITHER BY A FACULTY COMMITTEE OR BY THE PRESIDENT, OR
BOTH.  ANY SUCH REVIEW WOULD BE INFORMAL IN NATURE AND WOULD BE
ADVISORY ONLY. 

"RULE IV-- WHEN A NON-TENURE FACULTY MEMBER IS DISMISSED HE MAY
REQUEST A REVIEW BY OR HEARING BEFORE THE BOARD OF REGENTS.  EACH SUCH
REQUEST WILL BE CONSIDERED SEPARATELY AND THE BOARD WILL, IN ITS
DISCRETION, GRANT OR DENY SAME IN EACH INDIVIDUAL CASE." 

/5/  WHILE THE RESPONDENT ALLEGED THAT HE WAS NOT REHIRED BECAUSE OF
HIS EXERCISE OF FREE SPEECH, THE PETITIONERS INSISTED THAT THE NON
RETENTION DECISION WAS BASED ON OTHER, CONSTITUTIONALLY VALID GROUNDS. 
THE DISTRICT COURT CAME TO NO CONCLUSION WHATEVER REGARDING THE TRUE
REASON FOR THE UNIVERSITY PRESIDENT'S DECISION.  "IN THE PRESENT CASE,"
IT STATED, "IT APPEARS THAT A DETERMINATION AS TO THE ACTUAL BASES OF
(THE) DECISION MUST AWAIT AMPLIFICATION OF THE FACTS AT TRIAL.  . . .
SUMMARY JUDGMENT IS INAPPROPRIATE."  310 F.SUPP.  972, 982. 

/6/  THE COURTS THAT HAVE HAD TO DECIDE WHETHER A NONTENURED PUBLIC
EMPLOYEE HAS A RIGHT TO A STATEMENT OF REASONS OR A HEARING UPON
NONRENEWAL OF HIS CONTRACT HAVE COME TO VARYING CONCLUSIONS.  SOME HAVE
HELD THAT NEITHER PROCEDURAL SAFEGUARD IS REQUIRED.  E.G., ORR V.
TRINTER, 444 F.2D 128 (CA6); JONES V. HOPPER, 410 F.2D 1323 (CA10);
FREEMAN V. GOULD SPECIAL SCHOOL DISTRICT, 405 F.2D 1153 (CA8).  AT
LEAST ONE COURT HAS HELD THAT THERE IS A RIGHT TO A STATEMENT OF
REASONS BUT NOT A HEARING.  DROWN V. PORTSMOUTH SCHOOL DISTRICT, 435
F.2D 1182 (CA1).  AND ANOTHER HAS HELD THAT BOTH REQUIREMENTS DEPEND ON
WHETHER THE EMPLOYEE HAS AN "EXPECTANCY" OF CONTINUED EMPLOYMENT. 
FERGUSON V. THOMAS, 430 F.2D 852, 856 (CA5). 

/7/  BEFORE A PERSON IS DEPRIVED OF A PROTECTED INTEREST, HE MUST BE
AFFORDED OPPORTUNITY FOR SOME KIND OF A HEARING, "EXCEPT FOR
EXTRAORDINARY SITUATIONS WHERE SOME VALID GOVERNMENTAL INTEREST IS AT
STAKE THAT JUSTIFIES POSTPONING THE HEARING UNTIL AFTER THE EVENT." 
BODDIE V. CONNECTICUT, 401 U.S. 371, 379.  "WHILE '(MANY CONTROVERSIES
HAVE RAGED ABOUT . . . THE DUE PROCESS CLAUSE,' . . . IT IS FUNDAMENTAL
THAT EXCEPT IN EMERGENCY SITUATIONS (AND THIS IS NOT ONE) DUE PROCESS
REQUIRES THAT WHEN A STATE SEEKS TO TERMINATE (A PROTECTED) INTEREST .
. . , IT MUST AFFORD 'NOTICE AND OPPORTUNITY FOR HEARING APPROPRIATE TO
THE NATURE OF THE CASE' BEFORE THE TERMINATION BECOMES EFFECTIVE." 
BELL V. BURSON, 402 U.S. 535, 542.  FOR THE RARE AND EXTRAORDINARY
SITUATIONS IN WHICH WE HAVE HELD THAT DEPRIVATION OF A PROTECTED
INTEREST NEED NOT BE PRECEDED BY OPPORTUNITY FOR SOME KIND OF HEARING,
SEE, E.G., CENTRAL UNION TRUST CO. V. GARVAN, 254 U.S. 554, 566;
PHILLIPS V. COMMISSIONER, 283 U.S. 589, 597; EWING V. MYTINGER &
CASSELBERRY, INC., 339 U.S. 594. 

/8/  "THE FORMALITY AND PROCEDURAL REQUISITES FOR THE HEARING CAN
VARY, DEPENDING UPON THE IMPORTANCE OF THE INTERESTS INVOLVED AND THE
NATURE OF THE SUBSEQUENT PROCEEDINGS."  BODDIE V. CONNECTICUT, SUPRA,
AT 378.  SEE, E.G., GOLDBERG V. KELLY, 397 U.S. 254, 263; HANNAH V.
LARCHE, 363 U.S. 420.  THE CONSTITUTIONAL REQUIREMENT OF OPPORTUNITY
FOR SOME FORM OF HEARING BEFORE DEPRIVATION OF A PROTECTED INTEREST, OF
COURSE, DOES NOT DEPEND UPON SUCH A NARROW BALANCING PROCESS.  SEE N.
7, SUPRA. 

/9/  IN A LEADING CASE DECIDED MANY YEARS AGO, THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT HELD THAT PUBLIC EMPLOYMENT IN
GENERAL WAS A "PRIVILEGE," NOT A "RIGHT," AND THAT PROCEDURAL DUE
PROCESS GUARANTEES THEREFORE WERE INAPPLICABLE.  BAILEY V. RICHARDSON,
86 U.S.APP.D.C. 248, 182 F.2D 46, AFF'D BY AN EQUALLY DIVIDED COURT,
341 U.S. 918.  THE BASIS OF THIS HOLDING HAS BEEN THOROUGHLY UNDERMINED
IN THE ENSUING YEARS.  FOR, AS MR. JUSTICE BLACKMUN WROTE FOR THE COURT
ONLY LAST YEAR, "THIS COURT NOW HAS REJECTED THE CONCEPT THAT
CONSTITUTIONAL RIGHTS TURN UPON WHETHER A GOVERNMENTAL BENEFIT IS
CHARACTERIZED AS A 'RIGHT' OR AS A 'PRIVILEGE.'"  GRAHAM V. RICHARDSON,
403 U.S. 365, 374.  SEE, E.G., MORRISSEY V. BREWER, ANTE, AT 482; BELL
V. BURSON, SUPRA, AT 539; GOLDBERG V. KELLY, SUPRA, AT 262; SHAPIRO V.
THOMPSON, 394 U.S. 618, 627 N. 6; PICKERING V. BOARD OF EDUCATION, 391
U.S. 563, 568; SHERBERT V. VERNER, 374 U.S. 398, 404. 

/10/  SEE, E.G., CONNELL V. HIGGINBOTHAM, 403 U.S. 207, 208; BELL V.
BURSON, SUPRA; GOLDBERG V. KELLY, SUPRA. 

/11/  "ALTHOUGH THE COURT HAS NOT ASSUMED TO DEFINE 'LIBERTY' (IN
THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE) WITH ANY GREAT PRECISION,
THAT TERM IS NOT CONFINED TO MERE FREEDOM FROM BODILY RESTRAINT." 
BOLLING V. SHARPE, 347 U.S. 497, 499.  SEE, E.G., STANLEY V. ILLINOIS,
405 U.S. 645. 

/12/  THE PURPOSE OF SUCH NOTICE AND HEARING IS TO PROVIDE THE
PERSON AN OPPORTUNITY TO CLEAR HIS NAME.  ONCE A PERSON HAS CLEARED HIS
NAME AT A HEARING, HIS EMPLOYER, OF COURSE, MAY REMAIN FREE TO DENY HIM
FUTURE EMPLOYMENT FOR OTHER REASONS. 

/13/ THE DISTRICT COURT MADE AN ASSUMPTION "THAT NON-RETENTION BY
ONE UNIVERSITY OR COLLEGE CREATES CONCRETE AND PRACTICAL DIFFICULTIES
FOR A PROFESSOR IN HIS SUBSEQUENT ACADEMIC CAREER."  310 F.SUPP.,AT
979.  AND THE COURT OF APPEALS BASED ITS AFFIRMANCE OF THE SUMMARY
JUDGMENT LARGELY ON THE PREMISE THAT "THE SUBSTANTIAL ADVERSE EFFECT
NON-RETENTION IS LIKELY TO HAVE UPON THE CAREER INTERESTS OF AN
INDIVIDUAL PROFESSOR" AMOUNTS TO A LIMITATION ON FUTURE EMPLOYMENT
OPPORTUNITIES SUFFICIENT TO INVOKE PROCEDURAL DUE PROCESS GUARANTEES. 
446 F.2D, AT 809.  BUT EVEN ASSUMING, ARGUENDO, THAT SUCH A
"SUBSTANTIAL ADVERSE EFFECT" UNDER THESE CIRCUMSTANCES WOULD CONSTITUTE
A STATE-IMPOSED RESTRICTION ON LIBERTY, THE RECORD CONTAINS NO SUPPORT
FOR THESE ASSUMPTIONS.  THERE IS NO SUGGESTION OF HOW NONRETENTION
MIGHT AFFECT THE RESPONDENT'S FUTURE EMPLOYMENT PROSPECTS.  MERE PROOF,
FOR EXAMPLE, THAT HIS RECORD OF NONRETENTION IN ONE JOB, TAKEN ALONE,
MIGHT MAKE HIM SOMEWHAT LESS ATTRACTIVE TO SOME OTHER EMPLOYERS WOULD
HARDLY ESTABLISH THE KIND OF FORECLOSURE OF OPPORTUNITIES AMOUNTING TO
A DEPRIVATION OF "LIBERTY."  CF. SCHWARE V. BOARD OF BAR EXAMINERS, 353
U.S. 232. 

/14/  SEE N. 5, SUPRA.  THE COURT OF APPEALS, NONETHELESS, ARGUED
THAT OPPORTUNITY FOR A HEARING AND A STATEMENT OF REASONS WERE REQUIRED
HERE "AS A PROPHYLACTIC AGAINST NON-RETENTION DECISIONS IMPROPERLY
MOTIVATED BY EXERCISE OF PROTECTED RIGHTS."  446 F.2D, AT 810.  WHILE
THE COURT OF APPEALS RECOGNIZED THE LACK OF A FINDING THAT THE
RESPONDENT'S NONRETENTION WAS BASED ON EXERCISE OF THE RIGHT OF FREE
SPEECH, IT FELT THAT THE RESPONDENT'S INTEREST IN LIBERTY WAS
SUFFICIENTLY IMPLICATED HERE BECAUSE THE DECISION NOT TO REHIRE HIM WAS
MADE "WITH A BACKGROUND OF CONTROVERSY AND UNWELCOME EXPRESSIONS OF
OPINION."  IBID. 

WHEN A STATE WOULD DIRECTLY IMPINGE UPON INTERESTS IN FREE SPEECH OR
FREE PRESS, THIS COURT HAS ON OCCASION HELD THAT OPPORTUNITY FOR A FAIR
ADVERSARY HEARING MUST PRECEDE THE ACTION, WHETHER OR NOT THE SPEECH OR
PRESS INTEREST IS CLEARLY PROTECTED UNDER SUBSTANTIVE FIRST AMENDMENT
STANDARDS.  THUS, WE HAVE REQUIRED FAIR NOTICE AND OPPORTUNITY FOR AN
ADVERSARY HEARING BEFORE AN INJUNCTION IS ISSUED AGAINST THE HOLDING OF
RALLIES AND PUBLIC MEETINGS.  CARROLL V. PRINCESS ANNE, 393 U.S. 175. 
SIMILARLY, WE HAVE INDICATED THE NECESSITY OF PROCEDURAL SAFEGUARDS
BEFORE A STATE MAKES A LARGE-SCALE SEIZURE OF A PERSON'S ALLEGEDLY
OBSCENE BOOKS, MAGAZINES, AND SO FORTH.  A QUANTITY OF BOOKS V. KANSAS,
378 U.S. 205; MARCUS V. SEARCH WARRANT, 367 U.S. 717.  SEE FREEDMAN V.
MARYLAND, 380 U.S. 51; BANTAM BOOKS V. SULLIVAN, 372 U.S. 58.  SEE
GENERALLY MONAGHAN, FIRST AMENDMENT "DUE PROCESS," 83 HARV.L.REV. 
518. 

IN THE RESPONDENT'S CASE, HOWEVER, THE STATE HAS NOT DIRECTLY
IMPINGED UPON INTERESTS IN FREE SPEECH OR FREE PRESS IN ANY WAY
COMPARABLE TO A SEIZURE OF BOOKS OR AN INJUNCTION AGAINST MEETINGS. 
WHATEVER MAY BE A TEACHER'S RIGHTS OF FREE SPEECH, THE INTEREST IN
HOLDING A TEACHING JOB AT A STATE UNIVERSITY, SIMPLICITER, IS NOT
ITSELF A FREE SPEECH INTEREST. 

/15/  GOLDSMITH V. BOARD OF TAX APPEALS, 270 U.S. 117, IS A RELATED
CASE.  THERE, THE PETITIONER WAS A LAWYER WHO HAD BEEN REFUSED
ADMISSION TO PRACTICE BEFORE THE BOARD OF TAX APPEALS.  THE BOARD HAD
"PUBLISHED RULES FOR ADMISSION OF PERSONS ENTITLED TO PRACTICE BEFORE
IT, BY WHICH ATTORNEYS AT LAW ADMITTED TO COURTS OF THE UNITED STATES
AND THE STATES, AND THE DISTRICT OF COLUMBIA, AS WELL AS CERTIFIED
PUBLIC ACCOUNTANTS DULY QUALIFIED UNDER THE LAW OF ANY STATE OR THE
DISTRICT, ARE MADE ELIGIBLE.  . . . THE RULES FURTHER PROVIDE THAT THE
BOARD MAY IN ITS DISCRETION DENY ADMISSION TO ANY APPLICANT, OR SUSPEND
OR DISBAR ANY PERSON AFTER ADMISSION."  ID., AT 119.  THE BOARD DENIED
ADMISSION TO THE PETITIONER UNDER ITS DISCRETIONARY POWER, WITHOUT A
PRIOR HEARING AND A STATEMENT OF THE REASONS FOR THE DENIAL.  ALTHOUGH
THIS COURT DISPOSED OF THE CASE ON OTHER GROUNDS, IT STATED, IN AN
OPINION BY MR. CHIEF JUSTICE TAFT, THAT THE EXISTENCE OF THE BOARD'S
ELIGIBILITY RULES GAVE THE PETITIONER AN INTEREST AND CLAIM TO PRACTICE
BEFORE THE BOARD TO WHICH PROCEDURAL DUE PROCESS REQUIREMENTS APPLIED. 
IT SAID THAT THE BOARD'S DISCRETIONARY POWER "MUST BE CONSTRUED TO MEAN
THE EXERCISE OF A DISCRETION TO BE EXERCISED AFTER FAIR INVESTIGATION,
WITH SUCH A NOTICE, HEARING AND OPPORTUNITY TO ANSWER FOR THE APPLICANT
AS WOULD CONSTITUTE DUE PROCESS."  ID., AT 123.     /16/  TO BE SURE,
THE RESPONDENT DOES SUGGEST THAT MOST TEACHERS HIRED ON A YEAR-TO-YEAR
BASIS BY WISCONSIN STATE UNIVERSITY-OSHKOSH ARE, IN FACT, REHIRED.  BUT
THE DISTRICT COURT HAS NOT FOUND THAT THERE IS ANYTHING APPROACHING A
"COMMON LAW" OF RE-EMPLOYMENT, SEE PERRY V. SINDERMANN, POST, AT 602,
SO STRONG AS TO REQUIRE UNIVERSITY OFFICIALS TO GIVE THE RESPONDENT A
STATEMENT OF REASONS AND A HEARING ON THEIR DECISION NOT TO REHIRE
HIM. 

/17/  SEE, E.G., REPORT OF COMMITTEE A ON ACADEMIC FREEDOM AND
TENURE, PROCEDURAL STANDARDS IN THE RENEWAL OR NONRENEWAL OF FACULTY
APPOINTMENTS, 56 AAUP BULLETIN NO. 1, P. 21 (SPRING 1970). 

MR. JUSTICE POWELL TOOK NO PART IN THE DECISION OF THIS CASE. 
(FOR CONCURRING OPINION OF MR. CHIEF JUSTICE BURGER, SEE POST, P.
603.) 

(FOR DISSENTING OPINION OF MR. JUSTICE BRENNAN, SEE POST, P. 604.) 

MR. JUSTICE DOUGLAS, DISSENTING. 

RESPONDENT ROTH, LIKE SINDERMANN IN THE COMPANION CASE, HAD NO
TENURE UNDER WISCONSIN LAW AND, UNLIKE SINDERMANN, HE HAD HAD ONLY ONE
YEAR OF TEACHING AT WISCONSIN STATE UNIVERSITY-OSHKOSH-- WHERE DURING
1968-1969 HE HAD BEEN ASSISTANT PROFESSOR OF POLITICAL SCIENCE AND
INTERNATIONAL STUDIES.  THOUGH ROTH WAS RATED BY THE FACULTY AS AN
EXCELLENT TEACHER, HE HAD PUBLICLY CRITICIZED THE ADMINISTRATIONS FOR
SUSPENDING AN ENTIRE GROUP OF 94 BLACK STUDENTS WITHOUT DETERMINING
INDIVIDUAL GUILT.  HE ALSO CRITICIZED THE UNIVERSITY'S REGIME AS BEING
AUTHORITARIAN AND AUTOCRATIC.  HE USED HIS CLASSROOM TO DISCUSS WHAT
WAS BEING DONE ABOUT THE BLACK EPISODE; AND ONE DAY, INSTEAD OF MEETING
HIS CLASS, HE WENT TO THE MEETING OF THE BOARD OF REGENTS. 

IN THIS CASE, AS IN SINDERMANN, AN ACTION WAS STARTED IN FEDERAL
DISTRICT COURT UNDER 42 U.S.C. 1983 /1/  CLAIMING IN PART THAT THE
DECISION OF THE SCHOOL AUTHORITIES NOT TO REHIRE WAS IN RETALIATION FOR
HIS EXPRESSION OF OPINION.  THE DISTRICT COURT, IN PARTIALLY GRANTING
ROTH'S MOTION FOR SUMMARY JUDGMENT, HELD THAT THE FOURTEENTH AMENDMENT
REQUIRED THE UNIVERSITY TO GIVE A HEARING TO TEACHERS WHOSE CONTRACTS
WERE NOT TO BE RENEWED AND TO GIVE REASONS FOR ITS ACTION.  310
F.SUPP.  972, 983.  THE COURT OF APPEALS AFFIRMED.  446 F.2D 806. 

PROFESSOR WILL HERBERG, OF DREW UNIVERSITY, IN WRITING OF "ACADEMIC
FREEDOM" RECENTLY SAID: 

"(IT IS SOMETIMES CONCEIVED AS A BASIC CONSTITUTIONAL RIGHT
GUARANTEED AND PROTECTED UNDER THE FIRST AMENDMENT. 

     "BUT, OF COURSE, THIS IS NOT THE CASE.  WHEREAS A MAN'S RIGHT

  TO SPEAK OUT ON THIS OR THAT MAY BE GUARANTEED AND PROTECTED, HE

  CAN HAVE NO IMAGINABLE HUMAN OR CONSTITUTIONAL RIGHT TO REMAIN A

  MEMBER OF A UNIVERSITY FACULTY.  CLEARLY, THE RIGHT TO ACADEMIC

  FREEDOM IS AN ACQUIRED ONE, YET AN ACQUIRED RIGHT OF SUCH VALUE

  TO SOCIETY THAT IN THE MINDS OF MANY IT HAS VERGED UPON THE

  CONSTITUTIONAL."  WASHINGTON SUNDAY STAR, JAN. 23, 1972, B-3,

  COL. 1. 

THERE MAY NOT BE A CONSTITUTIONAL RIGHT TO CONTINUED EMPLOYMENT IF
PRIVATE SCHOOLS AND COLLEGES ARE INVOLVED.  BUT PROF. HERBERG'S VIEW IS
NOT CORRECT WHEN PUBLIC SCHOOLS MOVE AGAINST FACULTY MEMBERS.  FOR THE
FIRST AMENDMENT, APPLICABLE TO THE STATES BY REASON OF THE FOURTEENTH
AMENDMENT, PROTECTS THE INDIVIDUAL AGAINST STATE ACTION WHEN IT COMES
TO FREEDOM OF SPEECH AND OF PRESS AND THE RELATED FREEDOMS GUARANTEED
BY THE FIRST AMENDMENT; AND THE FOURTEENTH PROTECTS "LIBERTY" AND
"PROPERTY" AS STATED BY THE COURT IN SINDERMANN. 

NO MORE DIRECT ASSAULT ON ACADEMIC FREEDOM CAN BE IMAGINED THAN FOR
THE SCHOOL AUTHORITIES TO BE ALLOWED TO DISCHARGE A TEACHER BECAUSE OF
HIS OR HER PHILOSOPHICAL, POLITICAL, OR IDEOLOGICAL BELIEFS.  THE SAME
MAY WELL BE TRUE OF PRIVATE SCHOOLS, IF THROUGH THE DEVICE OF FINANCING
OR OTHER UMBILICAL CORDS THEY BECOME INSTRUMENTALITIES OF THE STATE. 
MR. JUSTICE FRANKFURTER STATED THE CONSTITUTIONAL THEORY IN SWEEZY V.
NEW HAMPSHIRE, 354 U.S. 234, 261-262 (CONCURRING IN RESULT): 

     "PROGRESS IN THE NATURAL SCIENCES IS NOT REMOTELY CONFINED TO

  FINDINGS MADE IN THE LABORATORY.  INSIGHTS INTO THE MYSTERIES OF

  NATURE ARE BORN OF HYPOTHESIS AND SPECULATION.  THE MORE SO IS

  THIS TRUE IN THE PURSUIT OF UNDERSTANDING IN THE GROPING

  ENDEAVORS OF WHAT ARE CALLED THE SOCIAL SCIENCES, THE CONCERN OF

  WHICH IS MAN AND SOCIETY.  THE PROBLEMS THAT ARE THE RESPECTIVE

  PREOCCUPATIONS OF ANTHROPOLOGY, ECONOMICS, LAW, PSYCHOLOGY,

  SOCIOLOGY AND RELATED AREAS OF SCHOLARSHIP ARE MERELY

  DEPARTMENTALIZED DEALING, BY WAY OF MANAGEABLE DIVISION OF

  ANALYSIS, WITH INTERPENETRATING ASPECTS OF HOLISTIC

  PERPLEXITIES.  FOR SOCIETY'S GOOD-- IF UNDERSTANDING BE AN

  ESSENTIAL NEED OF SOCIETY-- INQUIRIES INTO THESE PROBLEMS,

  SPECULATIONS ABOUT THEM, STIMULATION IN OTHERS OF REFLECTION UPON

  THEM, MUST BE LEFT AS UNFETTERED AS POSSIBLE.  POLITICAL POWER

  MUST ABSTAIN FROM INTRUSION INTO THIS ACTIVITY OF FREEDOM,

  PURSUED IN THE INTEREST OF WISE GOVERNMENT AND THE PEOPLE'S

  WELL-BEING, EXCEPT FOR REASONS THAT ARE EXIGENT AND OBVIOUSLY

  COMPELLING." 

WE REPEATED THAT WARNING IN KEYISHIAN V. BOARD OF REGENTS, 385 U.S.
589, 603: 

     "OUR NATION IS DEEPLY COMMITTED TO SAFEGUARDING ACADEMIC

  FREEDOM, WHICH IS OF TRANSCENDENT VALUE TO ALL OF US AND NOT

  MERELY TO THE TEACHERS CONCERNED.  THAT FREEDOM IS THEREFORE A

  SPECIAL CONCERN OF THE FIRST AMENDMENT, WHICH DOES NOT TOLERATE

  LAWS THAT CAST A PALL OF ORTHODOXY OVER THE CLASSROOM." 

WHEN A VIOLATION OF FIRST AMENDMENT RIGHTS IS ALLEGED, THE REASONS
FOR DISMISSAL OR FOR NONRENEWAL OF AN EMPLOYMENT CONTRACT MUST BE
EXAMINED TO SEE IF THE REASONS GIVEN ARE ONLY A CLOAK FOR ACTIVITY OR
ATTITUDES PROTECTED BY THE CONSTITUTION.  A STATUTORY ANALOGY IS
PRESENT UNDER THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. 151 ET SEQ.
WHILE DISCHARGES OF EMPLOYEES FOR "CAUSE" ARE PERMISSIBLE (FIBREBOARD
CORP. V. NLRB, 379 U.S. 203, 217), DISCHARGES BECAUSE OF AN EMPLOYEE'S
UNION ACTIVITIES ARE BANNED BY SEC. 8(A)(3), 29 U.S.C. 158(A)(3).  SO
THE SEARCH IS TO ASCERTAIN WHETHER THE STATED GROUND WAS THE REAL ONE
OR ONLY A PRETEXT.  SEE J. P. STEVENS & CO. V. NLRB, 380 F.2D 292,
300. 

IN THE CASE OF TEACHERS WHOSE CONTRACTS ARE NOT RENEWED, TENURE IS
NOT THE CRITICAL ISSUE.  IN THE SWEEZY CASE, THE TEACHER, WHOSE FIRST
AMENDMENT RIGHTS WE HONORED, HAD NO TENURE BUT WAS ONLY A GUEST
LECTURER.  IN THE KEYISHIAN CASE, ONE OF THE PETITIONERS (KEYISHIAN
HIMSELF) HAD ONLY A "ONE-YEAR-TERM CONTRACT" THAT WAS NOT RENEWED.  385
U.S., AT 592.  IN SHELTON V. TUCKER, 364 U.S. 479, ONE OF THE
PETITIONERS WAS A TEACHER WHOSE "CONTRACT FOR THE ENSUING SCHOOL YEAR
WAS NOT RENEWED" (ID., AT 483) AND TWO OTHERS WHO REFUSED TO COMPLY
WERE ADVISED THAT IT MADE "IMPOSSIBLE THEIR RE-EMPLOYMENT AS TEACHERS
FOR THE FOLLOWING SCHOOL YEAR."  ID., AT 484.  THE OATH REQUIRED IN
KEYISHIAN AND THE AFFIDAVIT LISTING MEMBERSHIPS REQUIRED IN SHELTON
WERE BOTH, IN OUR VIEW, IN VIOLATION OF FIRST AMENDMENT RIGHTS.  THOSE
CASES MEAN THAT CONDITIONING RENEWAL OF A TEACHER'S CONTRACT UPON
SURRENDER OF FIRST AMENDMENT RIGHTS IS BEYOND THE POWER OF A STATE. 

THERE IS SOMETIMES A CONFLICT BETWEEN A CLAIM FOR FIRST AMENDMENT
PROTECTION AND THE NEED FOR ORDERLY ADMINISTRATION OF THE SCHOOL
SYSTEM, AS WE NOTED IN PICKERING V. BOARD OF EDUCATION, 391 U.S. 563,
569.  THAT IS ONE REASON WHY SUMMARY JUDGMENTS IN THIS CLASS OF CASES
ARE SELDOM APPROPRIATE.  ANOTHER REASON IS THAT CAREFUL FACTFINDING IS
OFTEN NECESSARY TO KNOW WHETHER THE GIVEN REASON FOR NONRENEWAL OF A
TEACHER'S CONTRACT IS THE REAL REASON OR A FEIGNED ONE. 

IT IS SAID THAT SINCE TEACHING IN A PUBLIC SCHOOL IS A PRIVILEGE,
THE STATE CAN GRANT IT OR WITHHOLD IT ON CONDITIONS.  WE HAVE, HOWEVER,
REJECTED THAT THESIS IN NUMEROUS CASES, E.G., GRAHAM V. RICHARDSON, 403
U.S. 365, 374.  SEE VAN ALSTYNE, THE DEMISE OF THE RIGHT-PRIVILEGE
DISTINCTION IN CONSTITUTIONAL LAW, 81 HARV.L.REV.  1439 (1968).  IN
HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, 156, WE SAID THAT CONGRESS MAY
NOT BY WITHDRAWAL OF MAILING PRIVILEGES PLACE LIMITATIONS ON FREEDOM OF
SPEECH WHICH IT COULD NOT DO CONSTITUTIONALLY IF DONE DIRECTLY.  WE
SAID IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 402, THAT
FREEDOM OF SPEECH WAS ABRIDGED WHEN THE ONLY RESTRAINT ON ITS EXERCISE
WAS WITHDRAWAL OF THE PRIVILEGE TO INVOKE THE FACILITIES OF THE
NATIONAL LABOR RELATIONS BOARD.  IN WIEMAN V. UPDEGRAFF, 344 U.S. 183,
WE HELD THAT AN APPLICANT COULD NOT BE DENIED THE OPPORTUNITY FOR
PUBLIC EMPLOYMENT BECAUSE HE HAD EXERCISED HIS FIRST AMENDMENT RIGHTS. 
AND IN SPEISER V. RANDALL, 357 U.S. 513, WE HELD THAT A DENIAL OF A TAX
EXEMPTION UNLESS ONE GAVE UP HIS FIRST AMENDMENT RIGHTS WAS AN
ABRIDGMENT OF FOURTEENTH AMENDMENT RIGHTS. 

AS WE HELD IN SPEISER V. RANDALL, SUPRA, WHEN A STATE PROPOSES TO
DENY A PRIVILEGE TO ONE WHO IT ALLEGES HAS ENGAGED IN UNPROTECTED
SPEECH, DUE PROCESS REQUIRES THAT THE STATE BEAR THE BURDEN OF PROVING
THAT THE SPEECH WAS NOT PROTECTED.  "(THE 'PROTECTION OF THE INDIVIDUAL
AGAINST ARBITRARY ACTION' . . . (IS) THE VERY ESSENCE OF DUE PROCESS,"
SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551, 559, BUT WHERE THE STATE
IS ALLOWED TO ACT SECRETLY BEHIND CLOSED DOORS AND WITHOUT ANY NOTICE
TO THOSE WHO ARE AFFECTED BY ITS ACTIONS, THERE IS NO CHECK AGAINST THE
POSSIBILITY OF SUCH "ARBITRARY ACTION." 

MOREOVER, WHERE "IMPORTANT INTERESTS" OF THE CITIZEN ARE IMPLICATED
(BELL V. BURSON, 402 U.S. 535, 539) THEY ARE NOT TO BE DENIED OR TAKEN
AWAY WITHOUT DUE PROCESS.  IBID.  BELL V. BURSON INVOLVED A DRIVER'S
LICENSE.  BUT ALSO INCLUDED ARE DISQUALIFICATION FOR UNEMPLOYMENT
COMPENSATION (SHERBERT V. VERNER, 374 U.S. 398), DISCHARGE FROM PUBLIC
EMPLOYMENT (SLOCHOWER V. BOARD OF EDUCATION, SUPRA), DENIAL OF TAX
EXEMPTION (SPEISER V. RANDALL, SUPRA), AND WITHDRAWAL OF WELFARE
BENEFITS (GOLDBERG V. KELLY, 397 U.S. 254).  AND SEE WISCONSIN V.
CONSTANTINEAU, 400 U.S. 433.  WE SHOULD NOW ADD THAT NONRENEWAL OF A
TEACHER'S CONTRACT, WHETHER OR NOT HE HAS TENURE, IS AN ENTITLEMENT OF
THE SAME IMPORTANCE AND DIGNITY. 

CAFETERIA WORKERS V. MCELROY, 367 U.S. 886, IS NOT OPPOSED.  IT HELD
THAT A COOK EMPLOYED IN A CAFETERIA IN A MILITARY INSTALLATION WAS NOT
ENTITLED TO A HEARING PRIOR TO THE WITHDRAWAL OF HER ACCESS TO THE
FACILITY.  HER EMPLOYER WAS PREPARED TO EMPLOY HER AT ANOTHER OF ITS
RESTAURANTS, THE WITHDRAWAL WAS NOT LIKELY TO INJURE HER REPUTATION,
AND HER EMPLOYMENT OPPORTUNITIES ELSEWHERE WERE NOT IMPAIRED.  THE
COURT HELD THAT THE VERY LIMITED INDIVIDUAL INTEREST IN THIS ONE JOB
DID NOT OUTWEIGH THE GOVERNMENT'S AUTHORITY OVER AN IMPORTANT FEDERAL
MILITARY ESTABLISHMENT.  NONRENEWAL OF A TEACHER'S CONTRACT IS
TANTAMOUNT IN EFFECT TO A DISMISSAL AND THE CONSEQUENCES MAY BE
ENORMOUS.  NONRENEWAL CAN BE A BLEMISH THAT TURNS INTO A PERMANENT SCAR
AND EFFECTIVELY LIMITS ANY CHANGE THE TEACHER HAS OF BEING REHIRED AS A
TEACHER, AT LEAST IN HIS STATE. 

IF THIS NONRENEWAL IMPLICATED THE FIRST AMENDMENT, THEN ROTH WAS
DEPRIVED OF CONSTITUTIONAL RIGHTS BECAUSE HIS EMPLOYMENT WAS
CONDITIONED ON A SURRENDER OF FIRST AMENDMENT RIGHTS; AND, APART FROM
THE FIRST AMENDMENT, HE WAS DENIED DUE PROCESS WHEN HE RECEIVED NO
NOTICE AND HEARING OF THE ADVERSE ACTION CONTEMPLATED AGAINST HIM. 
WITHOUT A STATEMENT OF THE REASONS FOR THE DISCHARGE AND AN OPPORTUNITY
TO REBUT THOSE REASONS-- BOTH OF WHICH WERE REFUSED BY PETITIONERS--
THERE IS NO MEANS SHORT OF A LAWSUIT TO SAFEGUARD THE RIGHT NOT TO BE
DISCHARGED FOR THE EXERCISE OF FIRST AMENDMENT GUARANTEES. 

THE DISTRICT COURT HELD, 310 F.SUPP.,AT 979-980: 

"SUBSTANTIVE CONSTITUTIONAL PROTECTION FOR A UNIVERSITY PROFESSOR
AGAINST NON-RETENTION IN VIOLATION OF HIS FIRST AMENDMENT RIGHTS OR
ARBITRARY NON-RETENTION IS USELESS WITHOUT PROCEDURAL SAFEGUARDS.  I
HOLD THAT MINIMAL PROCEDURAL DUE PROCESS INCLUDES A STATEMENT OF THE
REASONS WHY THE UNIVERSITY INTENDS NOT TO RETAIN THE PROFESSOR, NOTICE
OF A HEARING AT WHICH HE MAY RESPOND TO THE STATED REASONS, AND A
HEARING IF THE PROFESSOR APPEARS AT THE APPOINTED TIME AND PLACE.  AT
SUCH A HEARING THE PROFESSOR MUST HAVE A REASONABLE OPPORTUNITY TO
SUBMIT EVIDENCE RELEVANT TO THE STATED REASONS.  THE BURDEN OF GOING
FORWARD AND THE BURDEN OF PROOF RESTS WITH THE PROFESSOR.  ONLY IF HE
MAKES A REASONABLE SHOWING THAT THE STATED REASONS ARE WHOLLY
INAPPROPRIATE AS A BASIS FOR DECISION OR THAT THEY ARE WHOLLY WITHOUT
BASIS IN FACT WOULD THE UNIVERSITY ADMINISTRATION BECOME OBLIGED TO
SHOW THAT THE STATED REASONS ARE NOT INAPPROPRIATE OR THAT THEY HAVE A
BASIS IN FACT." 

IT WAS THAT PROCEDURE THAT THE COURT OF APPEALS APPROVED.  446 F.2D,
AT 809-810.  THE COURT OF APPEALS ALSO CONCLUDED THAT THOUGH THE SEC.
1983 ACTION WAS PENDING IN COURT, THE COURT SHOULD STAY ITS HAND UNTIL
THE ACADEMIC PROCEDURES HAD BEEN COMPLETED.  /2/  AS STATED BY THE
COURT OF APPEALS IN SINDERMANN V. PERRY, 430 F.2D 939 (CA 5): 

"SCHOOL-CONSTITUTED REVIEW BODIES ARE THE MOST APPROPRIATE FORUMS
FOR INITIALLY DETERMINING ISSUES OF THIS TYPE, BOTH FOR THE CONVENIENCE
OF THE PARTIES AND IN ORDER TO BRING ACADEMIC EXPERTISE TO BEAR IN
RESOLVING THE NICE ISSUES OF ADMINISTRATIVE DISCIPLINE, TEACHER
COMPETENCE AND SCHOOL POLICY, WHICH SO FREQUENTLY MUST BE BALANCED IN
REACHING A PROPER DETERMINATION."  ID., AT 944-945. 

THAT IS A PERMISSIBLE COURSE FOR DISTRICT COURTS TO TAKE, THOUGH IT
DOES NOT RELIEVE THEM OF THE FINAL DETERMINATION WHETHER NONRENEWAL OF
THE TEACHER'S CONTRACT WAS IN RETALIATION FOR THE EXERCISE OF FIRST
AMENDMENT RIGHTS OR A DENIAL OF DUE PROCESS. 

ACCORDINGLY I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  SECTION 1983 READS AS FOLLOWS: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS."     /2/  SUCH A
PROCEDURE WOULD NOT BE CONTRARY TO THE WELL-SETTLED RULE THAT SEC. 1983
ACTIONS DO NOT REQUIRE EXHAUSTION OF OTHER REMEDIES.  SEE, E.G.,
WILWORDING V. SWENSON, 404 U.S. 249 (1971); DAMICO V. CALIFORNIA, 389
U.S. 416 (1967); MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668 (1963);
MONROE V. PAPE, 365 U.S. 167 (1961).  ONE OF THE ALLEGATIONS IN THE
COMPLAINT WAS THAT RESPONDENT WAS DENIED ANY EFFECTIVE STATE REMEDY,
AND THE DISTRICT COURT'S STAYING ITS HAND THUS FURTHERED RATHER THAN
THWARTED THE PURPOSES OF SEC. 1983.     MR. JUSTICE MARSHALL,
DISSENTING. 

RESPONDENT WAS HIRED AS AN ASSISTANT PROFESSOR OF POLITICAL SCIENCE
AT WISCONSIN STATE UNIVERSITY-OSHKOSH FOR THE 1968-1969 ACADEMIC YEAR. 
DURING THE COURSE OF THAT YEAR HE WAS TOLD THAT HE WOULD NOT BE REHIRED
FOR THE NEXT ACADEMIC TERM, BUT HE WAS NEVER TOLD WHY.  IN THIS CASE,
HE ASSERTS THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION ENTITLED HIM TO A STATEMENT OF REASONS
AND A HEARING ON THE UNIVERSITY'S DECISION NOT TO REHIRE HIM FOR
ANOTHER YEAR.  /1/  THIS CLAIM WAS SUSTAINED BY THE DISTRICT COURT,
WHICH GRANTED RESPONDENT SUMMARY JUDGMENT, 310 F.SUPP.  972, AND BY THE
COURT OF APPEALS WHICH AFFIRMED THE JUDGMENT OF THE DISTRICT COURT. 
446 F.2D 806.  THIS COURT TODAY REVERSES THE JUDGMENT OF THE COURT OF
APPEALS AND REJECTS RESPONDENT'S CLAIM.  I DISSENT. 

WHILE I AGREE WITH PART I OF THE COURT'S OPINION, SETTING FORTH THE
PROPER FRAMEWORK FOR CONSIDERATION OF THE ISSUE PRESENTED, AND ALSO
WITH THOSE PORTIONS OF PARTS II AND III OF THE COURT'S OPINION THAT
ASSERT THAT A PUBLIC EMPLOYEE IS ENTITLED TO PROCEDURAL DUE PROCESS
WHENEVER A STATE STIGMATIZES HIM BY DENYING EMPLOYMENT, OR INJURES HIS
FUTURE EMPLOYMENT PROSPECTS SEVERELY, OR WHENEVER THE STATE DEPRIVES
HIM OF A PROPERTY INTEREST, I WOULD GO FURTHER THAN THE COURT DOES IN
DEFINING THE TERMS "LIBERTY" AND "PROPERTY." 

THE PRIOR DECISIONS OF THIS COURT, DISCUSSED AT LENGTH IN THE
OPINION OF THE COURT, ESTABLISH A PRINCIPLE THAT IS AS OBVIOUS AS IT IS
COMPELLING-- I.E., FEDERAL AND STATE GOVERNMENTS AND GOVERNMENTAL
AGENCIES ARE RESTRAINED BY THE CONSTITUTION FROM ACTING ARBITRARILY
WITH RESPECT TO EMPLOYMENT OPPORTUNITIES THAT THEY EITHER OFFER OR
CONTROL.  HENCE, IT IS NOW FIRMLY ESTABLISHED THAT WHETHER OR NOT A
PRIVATE EMPLOYER IS FREE TO ACT CAPRICIOUSLY OR UNREASONABLY WITH
RESPECT TO EMPLOYMENT PRACTICES, AT LEAST ABSENT STATUTORY /2/  OR
CONTRACTUAL /3/  CONTROLS, A GOVERNMENT EMPLOYER IS DIFFERENT.  THE
GOVERNMENT MAY ONLY ACT FAIRLY AND REASONABLY. 

THIS COURT HAS LONG MAINTAINED THAT "THE RIGHT TO WORK FOR A LIVING
IN THE COMMON OCCUPATIONS OF THE COMMUNITY IS OF THE VERY ESSENCE OF
THE PERSONAL FREEDOM AND OPPORTUNITY THAT IT WAS THE PURPOSE OF THE
(FOURTEENTH) AMENDMENT TO SECURE."  TRUAX V. RAICH, 239 U.S. 33, 41
(1915) (HUGHES, J.).  SEE ALSO MEYER V. NEBRASKA, 262 U.S. 390, 399
(1923).  IT HAS ALSO ESTABLISHED THAT THE FACT THAT AN EMPLOYEE HAS NO
CONTRACT GUARANTEEING WORK FOR A SPECIFIC FUTURE PERIOD DOES NOT MEAN
THAT AS THE RESULT OF ACTION BY THE GOVERNMENT HE MAY BE "DISCHARGED AT
ANY TIME FOR ANY REASON OR FOR NO REASON."  TRUAX V. RAICH, SUPRA, AT
38. 

IN MY VIEW, EVERY CITIZEN WHO APPLIES FOR A GOVERNMENT JOB IS
ENTITLED TO IT UNLESS THE GOVERNMENT CAN ESTABLISH SOME REASON FOR
DENYING THE EMPLOYMENT.  THIS IS THE "PROPERTY" RIGHT THAT I BELIEVE IS
PROTECTED BY THE FOURTEENTH AMENDMENT AND THAT CANNOT BE DENIED
"WITHOUT DUE PROCESS OF LAW."  AND IT IS ALSO LIBERTY-- LIBERTY TO WORK
- WHICH IS THE "VERY ESSENCE OF THE PERSONAL FREEDOM AND OPPORTUNITY"
SECURED BY THE FOURTEENTH AMENDMENT. 

THIS COURT HAS OFTEN HAD OCCASION TO NOTE THAT THE DENIAL OF PUBLIC
EMPLOYMENT IS A SERIOUS BLOW TO ANY CITIZEN.  SEE, E.G., JOINT ANTI
FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 185 (1951)
(JACKSON, J., CONCURRING); UNITED STATES V. LOVETT, 328 U.S. 303, 316
317 (1946).  THUS, WHEN AN APPLICATION FOR PUBLIC EMPLOYMENT IS DENIED
OR THE CONTRACT OF A GOVERNMENT EMPLOYEE IS NOT RENEWED, THE GOVERNMENT
MUST SAY WHY, FOR IT IS ONLY WHEN THE REASONS UNDERLYING GOVERNMENT
ACTION ARE KNOWN THAT CITIZENS FEEL SECURE AND PROTECTED AGAINST
ARBITRARY GOVERNMENT ACTION. 

EMPLOYMENT IS ONE OF THE GREATEST, IF NOT THE GREATEST, BENEFITS
THAT GOVERNMENTS OFFER IN MODERN-DAY LIFE.  WHEN SOMETHING AS VALUABLE
AS THE OPPORTUNITY TO WORK IS AT STAKE, THE GOVERNMENT MAY NOT REWARD
SOME CITIZENS AND NOT OTHERS WITHOUT DEMONSTRATING THAT ITS ACTIONS ARE
FAIR AND EQUITABLE.  AND IT IS PROCEDURAL DUE PROCESS THAT IS OUR
FUNDAMENTAL GUARANTEE OF FAIRNESS, OUR PROTECTION AGAINST ARBITRARY,
CAPRICIOUS, AND UNREASONABLE GOVERNMENT ACTION. 

MR. JUSTICE DOUGLAS HAS WRITTEN THAT: 

     "IT IS NOT WITHOUT SIGNIFICANCE THAT MOST OF THE PROVISIONS OF

  THE BILL OF RIGHTS ARE PROCEDURAL.  IT IS PROCEDURE THAT SPELLS

  MUCH OF THE DIFFERENCE BETWEEN RULE BY LAW AND RULE BY WHIM OR

  CAPRICE.  STEADFAST ADHERENCE TO STRICT PROCEDURAL SAFEGUARDS IS

  OUR MAIN ASSURANCE THAT THERE WILL BE EQUAL JUSTICE UNDER LAW." 

  JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, SUPRA, AT 179

  (CONCURRING OPINION). 

AND MR. JUSTICE FRANKFURTER HAS SAID THAT "(THE HISTORY OF AMERICAN
FREEDOM IS, IN NO SMALL MEASURE, THE HISTORY OF PROCEDURE."  MALINSKI
V. NEW YORK, 324 U.S. 401, 414 (1945) (SEPARATE OPINION).  WITH RESPECT
TO OCCUPATIONS CONTROLLED BY THE GOVERNMENT, ONE LOWER COURT HAS SAID
THAT "(THE PUBLIC HAS THE RIGHT TO EXPECT ITS OFFICERS . . . TO MAKE
ADJUDICATIONS ON THE BASIS OF MERIT.  THE FIRST STEP TOWARD INSURING
THAT THESE EXPECTATIONS ARE REALIZED IS TO REQUIRE ADHERENCE TO THE
STANDARDS OF DUE PROCESS; ABSOLUTE AND UNCONTROLLED DISCRETION INVITES
ABUSE."  HORNSBY V. ALLEN, 326 F.2D 605, 610 (CA5 1964). 

WE HAVE OFTEN NOTED THAT PROCEDURAL DUE PROCESS MEANS MANY DIFFERENT
THINGS IN THE NUMEROUS CONTEXTS IN WHICH IT APPLIES.  SEE, E.G.,
GOLDBERG V. KELLY, 397 U.S. 254 (1970); BELL V. BURSON, 402 U.S. 535
(1971).  PRIOR DECISIONS HAVE HELD THAT AN APPLICANT FOR ADMISSION TO
PRACTICE AS AN ATTORNEY BEFORE THE UNITED STATES BOARD OF TAX APPEALS
MAY NOT BE REJECTED WITHOUT A STATEMENT OF REASONS AND A CHANCE FOR A
HEARING ON DISPUTED ISSUES OF FACT; /4/  THAT A TENURED TEACHER COULD
NOT BE SUMMARILY DISMISSED WITHOUT NOTICE OF THE REASONS AND A HEARING;
/5/  THAT AN APPLICANT FOR ADMISSION TO A STATE BAR COULD NOT BE DENIED
THE OPPORTUNITY TO PRACTICE LAW WITHOUT NOTICE OF THE REASONS FOR THE
REJECTION OF HIS APPLICATION AND A HEARING; /6/  AND EVEN THAT A
SUBSTITUTE TEACHER WHO HAD BEEN EMPLOYED ONLY TWO MONTHS COULD NOT BE
DISMISSED MERELY BECAUSE SHE REFUSED TO TAKE A LOYALTY OATH WITHOUT AN
INQUIRY INTO THE SPECIFIC FACTS OF HER CASE AND A HEARING ON THOSE IN
DISPUTE.  /7/  I WOULD FOLLOW THESE CASES AND HOLD THAT RESPONDENT WAS
DENIED DUE PROCESS WHEN HIS CONTRACT WAS NOT RENEWED AND HE WAS NOT
INFORMED OF THE REASONS AND GIVEN AN OPPORTUNITY TO RESPOND. 

IT MAY BE ARGUED THAT TO PROVIDE PROCEDURAL DUE PROCESS TO ALL
PUBLIC EMPLOYEES OR PROSPECTIVE EMPLOYEES WOULD PLACE AN INTOLERABLE
BURDEN ON THE MACHINERY OF GOVERNMENT.  CF. GOLDBERG V. KELLY, SUPRA.
THE SHORT ANSWER TO THAT ARGUMENT IS THAT IT IS NOT BURDENSOME TO GIVE
REASONS WHEN REASONS EXIST.  WHENEVER AN APPLICATION FOR EMPLOYMENT IS
DENIED, AN EMPLOYEE IS DISCHARGED, OR A DECISION NOT TO REHIRE AN
EMPLOYEE IS MADE, THERE SHOULD BE SOME REASON FOR THE DECISION.  IT CAN
SCARCELY BE ARGUED THAT GOVERNMENT WOULD BE CRIPPLED BY A REQUIREMENT
THAT THE REASON BE COMMUNICATED TO THE PERSON MOST DIRECTLY AFFECTED BY
THE GOVERNMENT'S ACTION. 

WHERE THERE ARE NUMEROUS APPLICANTS FOR JOBS, IT IS LIKELY THAT FEW
WILL CHOOSE TO DEMAND REASONS FOR NOT BEING HIRED.  BUT, IF THE DEMAND
FOR REASONS IS EXCEPTIONALLY GREAT, SUMMARY PROCEDURES CAN BE DEVISED
THAT WOULD PROVIDE FAIR AND ADEQUATE INFORMATION TO ALL PERSONS.  AS
LONG AS THE GOVERNMENT HAS A GOOD REASON FOR ITS ACTIONS IT NEED NOT
FEAR DISCLOSURE.  IT IS ONLY WHERE THE GOVERNMENT ACTS IMPROPERLY THAT
PROCEDURAL DUE PROCESS IS TRULY BURDENSOME.  AND THAT IS PRECISELY WHEN
IT IS MOST NECESSARY. 

IT MIGHT ALSO BE ARGUED THAT TO REQUIRE A HEARING AND A STATEMENT OF
REASONS IS TO REQUIRE A USELESS ACT, BECAUSE A GOVERNMENT BENT ON
DENYING EMPLOYMENT TO ONE OR MORE PERSONS WILL DO SO REGARDLESS OF THE
PROCEDURAL HURDLES THAT ARE PLACED IN ITS PATH.  PERHAPS THIS IS SO,
BUT A REQUIREMENT OF PROCEDURAL REGULARITY AT LEAST RENDERS ARBITRARY
ACTION MORE DIFFICULT.  MOREOVER, PROPER PROCEDURES WILL SURELY
ELIMINATE SOME OF THE ARBITRARINESS THAT RESULTS, NOT FROM MALICE, BUT
FROM INNOCENT ERROR.  "EXPERIENCE TEACHES . . . THAT THE AFFORDING OF
PROCEDURAL SAFEGUARDS, WHICH BY THEIR NATURE SERVE TO ILLUMINATE THE
UNDERLYING FACTS, IN ITSELF OFTEN OPERATES TO PREVENT ERRONEOUS
DECISIONS ON THE MERITS FROM OCCURRING."  SILVER V. NEW YORK STOCK
EXCHANGE, 373 U.S. 341, 366 (1963).  WHEN THE GOVERNMENT KNOWS IT MAY
HAVE TO JUSTIFY ITS DECISIONS WITH SOUND REASONS, ITS CONDUCT IS LIKELY
TO BE MORE CAUTIOUS, CAREFUL, AND CORRECT. 

PROFESSOR GELLHORN PUT THE ARGUMENT WELL: 

"IN MY JUDGMENT, THERE IS NO BASIC DIVISION OF INTEREST BETWEEN THE
CITIZENRY ON THE ONE HAND AND OFFICIALDOM ON THE OTHER.  BOTH SHOULD BE
INTERESTED EQUALLY IN THE QUEST FOR PROCEDURAL SAFEGUARDS.  I ECHO THE
LATE JUSTICE JACKSON IN SAYING:  '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'-- BLUNDERS WHICH ARE
LIKELY TO OCCUR WHEN REASONS NEED NOT BE GIVEN AND WHEN THE
REASONABLENESS AND INDEED LEGALITY OF JUDGMENTS NEED NOT BE SUBJECTED
TO ANY APPRAISAL OTHER THAN ONE'S OWN.  . . . "  SUMMARY OF COLLOQUY ON
ADMINISTRATIVE LAW, 6 J.SOC.PUB.  TEACHERS OF LAW 70, 73 (1961). 

ACCORDINGLY, I DISSENT. 

/1/  RESPONDENT HAS ALSO ALLEGED THAT THE TRUE REASON FOR THE
DECISION NOT TO REHIRE HIM WAS TO PUNISH HIM FOR CERTAIN STATEMENTS
CRITICAL OF THE UNIVERSITY.  AS THE COURT POINTS OUT, THIS ISSUE IS NOT
BEFORE US AT THE PRESENT TIME. 

/2/  SEE, E.G., GRIGGS V. DUKE POWER CO., 401 U.S. 424 (1971); 42
U.S.C. 2000E. 

/3/  CF. NOTE, PROCEDURAL "DUE PROCESS" IN UNION DISCIPLINARY
PROCEEDINGS, 57 YALE L.J. 1302 (1948). 

/4/  GOLDSMITH V. BOARD OF TAX APPEALS, 270 U.S. 117 (1926). 

/5/  SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551 (1956). 

/6/  WILLNER V. COMMITTEE ON CHARACTER, 373 U.S. 96 (1963). 

/7/  CONNELL V. HIGGINBOTHAM, 403 U.S. 207 (1971). 

CHARLES A. BLECK, ASSISTANT ATTORNEY GENERAL OF WISCONSIN, ARGUED
THE CAUSE FOR PETITIONERS.  WITH HIM ON THE BRIEF WERE ROBERT W.
WARREN, ATTORNEY GENERAL, AND ROBERT D. MARTINSON, ASSISTANT ATTORNEY
GENERAL. 

STEVEN H. STEINGLASS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE ROBERT L. REYNOLDS, JR., RICHARD PERRY, AND RICHARD M.
KLEIN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY ROBERT H.
QUINN, ATTORNEY GENERAL, WALTER H. MAYO III, ASSISTANT ATTORNEY
GENERAL, AND MORRIS M. GOLDINGS FOR THE COMMONWEALTH OF MASSACHUSETTS;
BY EVELLE J. YOUNGER, ATTORNEY GENERAL OF CALIFORNIA, ELIZABETH PALMER,
ACTING ASSISTANT ATTORNEY GENERAL, AND DONALD B. DAY, DEPUTY ATTORNEY
GENERAL, FOR THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE COLLEGES; BY
J. LEE RANKIN AND STANLEY BUCHSBAUM FOR THE CITY OF NEW YORK; AND BY
ALBERT E. JENNER, JR., CHESTER T. KAMIN, AND RICHARD T. DUNN FOR THE
AMERICAN COUNCIL ON EDUCATION ET AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY DAVID RUBIN,
MICHAEL H. GOTTESMAN, GEORGE H. COHEN, AND WARREN BURNETT FOR THE
NATIONAL EDUCATION ASSOCIATION ET AL.; BY HERMAN I. ORENTLICHER AND
WILLIAM W. VAN ALSTYNE FOR THE AMERICAN ASSOCIATION OF UNIVERSITY
PROFESSORS; BY JOHN LIGTENBERG AND ANDREW J. LEAHY FOR THE AMERICAN
FEDERATION OF TEACHERS; AND BY RICHARD L. CATES FOR THE WISCONSIN
EDUCATION ASSOCIATION. 
..END :























PERRY V. SINDERMANN, 408 U.S. 593 


       PERRY ET AL. V. SINDERMANN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 70-36.  ARGUED JANUARY 18, 1972-- DECIDED JUNE 29,
1972 


RESPONDENT WAS EMPLOYED IN A STATE COLLEGE SYSTEM FOR 10 YEARS, THE
LAST FOUR AS A JUNIOR COLLEGE PROFESSOR UNDER A SERIES OF ONE-YEAR
WRITTEN CONTRACTS.  THE REGENTS DECLINED TO RENEW HIS EMPLOYMENT FOR
THE NEXT YEAR, WITHOUT GIVING HIM AN EXPLANATION OR PRIOR HEARING. 
RESPONDENT THAN BROUGHT THIS ACTION IN THE DISTRICT COURT, ALLEGING
THAT THE DECISION NOT TO REHIRE HIM WAS BASED ON RESPONDENT'S PUBLIC
CRITICISM OF THE COLLEGE ADMINISTRATION AND THUS INFRINGED HIS FREE
SPEECH RIGHT, AND THAT THE REGENTS' FAILURE TO AFFORD HIM A HEARING
VIOLATED HIS PROCEDURAL DUE PROCESS RIGHT.  THE DISTRICT COURT GRANTED
SUMMARY JUDGMENT FOR PETITIONERS, CONCLUDING THAT RESPONDENT'S CONTRACT
HAD TERMINATED AND THE JUNIOR COLLEGE HAD NOT ADOPTED THE TENURE
SYSTEM.  THE COURT OF APPEALS REVERSED ON THE GROUNDS THAT, DESPITE
LACK OF TENURE, NONRENEWAL OF RESPONDENT'S CONTRACT WOULD VIOLATE THE
FOURTEENTH AMENDMENT IF IT WAS IN FACT BASED ON HIS PROTECTED FREE
SPEECH, AND THAT IF RESPONDENT COULD SHOW THAT HE HAD AN "EXPECTANCY"
OF RE-EMPLOYMENT, THE FAILURE TO ALLOW HIM AN OPPORTUNITY FOR A HEARING
WOULD VIOLATE THE PROCEDURAL DUE PROCESS GUARANTEE.  HELD: 

1.  LACK OF A CONTRACTUAL OR TENURE RIGHT TO RE-EMPLOYMENT, TAKEN
ALONE, DID NOT DEFEAT RESPONDENT'S CLAIM THAT THE NONRENEWAL OF HIS
CONTRACT VIOLATED HIS FREE SPEECH RIGHT UNDER THE FIRST AND FOURTEENTH
AMENDMENTS.  THE DISTRICT COURT THEREFORE ERRED IN FORECLOSING
DETERMINATION OF THE CONTESTED ISSUE WHETHER THE DECISION NOT TO RENEW
WAS BASED ON RESPONDENT'S EXERCISE OF HIS RIGHT OF FREE SPEECH.  PP.
596-598. 

2.  THOUGH A SUBJECTIVE "EXPECTANCY" OF TENURE IS NOT PROTECTED BY
PROCEDURAL DUE PROCESS, RESPONDENT'S ALLEGATION THAT THE COLLEGE HAD A
DE FACTO TENURE POLICY, ARISING FROM RULES AND UNDERSTANDINGS
OFFICIALLY PROMULGATED AND FOSTERED, ENTITLED HIM TO AN OPPORTUNITY OF
PROVING THE LEGITIMACY OF HIS CLAIM TO JOB TENURE.  SUCH PROOF WOULD
OBLIGATE THE COLLEGE TO AFFORD HIM A REQUESTED HEARING WHERE HE COULD
BE INFORMED OF THE GROUNDS FOR HIS NONRETENTION AND CHALLENGE THEIR
SUFFICIENCY.  PP. 599-603. 

430 F.2D 939, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J. AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  BURGER, C.J.,
FILED A CONCURRING OPINION, POST, P. 603.  BRENNAN, J., FILED AN
OPINION DISSENTING IN PART, IN WHICH DOUGLAS, J., JOINED, POST, P.
604.  MARSHALL, J., FILED AN OPINION DISSENTING IN PART, POST, P. 605. 
POWELL, J., TOOK NO PART IN THE DECISION OF THE CASE. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

FROM 1959 TO 1969 THE RESPONDENT, ROBERT SINDERMANN, WAS A TEACHER IN
THE STATE COLLEGE SYSTEM OF THE STATE OF TEXAS.  AFTER TEACHING FOR TWO
YEARS AT THE UNIVERSITY OF TEXAS AND FOR FOUR YEARS AT SAN ANTONIO
JUNIOR COLLEGE, HE BECAME A PROFESSOR OF GOVERNMENT AND SOCIAL SCIENCE
AT ODESSA JUNIOR COLLEGE IN 1965.  HE WAS EMPLOYED AT THE COLLEGE FOR
FOUR SUCCESSIVE YEARS, UNDER A SERIES OF ONE-YEAR CONTRACTS.  HE WAS
SUCCESSFUL ENOUGH TO BE APPOINTED, FOR A TIME, THE COCHAIRMAN OF HIS
DEPARTMENT. 

DURING THE 1968-1969 ACADEMIC YEAR, HOWEVER, CONTROVERSY AROSE
BETWEEN THE RESPONDENT AND THE COLLEGE ADMINISTRATION.  THE RESPONDENT
WAS ELECTED PRESIDENT OF THE TEXAS JUNIOR COLLEGE TEACHERS
ASSOCIATION.  IN THIS CAPACITY, HE LEFT HIS TEACHING DUTIES ON SEVERAL
OCCASIONS TO TESTIFY BEFORE COMMITTEES OF THE TEXAS LEGISLATURE, AND HE
BECAME INVOLVED IN PUBLIC DISAGREEMENTS WITH THE POLICIES OF THE
COLLEGE'S BOARD OF REGENTS.  IN PARTICULAR, HE ALIGNED HIMSELF WITH A
GROUP ADVOCATING THE ELEVATION OF THE COLLEGE TO FOUR-YEAR STATUS-- A
CHANGE OPPOSED BY THE REGENTS.  AND, ON ONE OCCASION, A NEWSPAPER
ADVERTISEMENT APPEARED OVER HIS NAME THAT WAS HIGHLY CRITICAL OF THE
REGENTS. 

FINALLY, IN MAY 1969, THE RESPONDENT'S ONE-YEAR EMPLOYMENT CONTRACT
TERMINATED AND THE BOARD OF REGENTS VOTED NOT TO OFFER HIM A NEW
CONTRACT FOR THE NEXT ACADEMIC YEAR.  THE REGENTS ISSUED A PRESS
RELEASE SETTING FORTH ALLEGATIONS OF THE RESPONDENT'S INSUBORDINATION. 
/1/  BUT THEY PROVIDED HIM NO OFFICIAL STATEMENT OF THE REASONS FOR THE
NONRENEWAL OF HIS CONTRACT.  AND THEY ALLOWED HIM NO OPPORTUNITY FOR A
HEARING TO CHALLENGE THE BASIS OF THE NONRENEWAL. 

THE RESPONDENT THEN BROUGHT THIS ACTION IN FEDERAL DISTRICT COURT. 
HE ALLEGED PRIMARILY THAT THE REGENTS' DECISION NOT TO REHIRE HIM WAS
BASED ON HIS PUBLIC CRITICISM OF THE POLICIES OF THE COLLEGE
ADMINISTRATION AND THUS INFRINGED HIS RIGHT TO FREEDOM OF SPEECH.  HE
ALSO ALLEGED THAT THEIR FAILURE TO PROVIDE HIM AN OPPORTUNITY FOR A
HEARING VIOLATED THE FOURTEENTH AMENDMENT'S GUARANTEE OF PROCEDURAL DUE
PROCESS.  THE PETITIONERS-- MEMBERS OF THE BOARD OF REGENTS AND THE
PRESIDENT OF THE COLLEGE-- DENIED THAT THEIR DECISION WAS MADE IN
RETALIATION FOR THE RESPONDENT'S PUBLIC CRITICISM AND ARGUED THAT THEY
HAD NO OBLIGATION TO PROVIDE A HEARING.  /2/  ON THE BASIS OF THESE
BARE PLEADINGS AND THREE BRIEF AFFIDAVITS FILED BY THE RESPONDENT, /3/
THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR THE PETITIONERS.  IT
CONCLUDED THAT THE RESPONDENT HAD "NO CAUSE OF ACTION AGAINST THE
(PETITIONERS) SINCE HIS CONTRACT OF EMPLOYMENT TERMINATED MAY 31, 1969,
AND ODESSA JUNIOR COLLEGE HAS NOT ADOPTED THE TENURE SYSTEM."  /4/ 

THE COURT OF APPEALS REVERSED THE JUDGMENT OF THE DISTRICT COURT. 
430 F.2D 939.  FIRST, IT HELD THAT, DESPITE THE RESPONDENT'S LACK OF
TENURE, THE NONRENEWAL OF HIS CONTRACT WOULD VIOLATE THE FOURTEENTH
AMENDMENT IF IT IN FACT WAS BASED ON HIS PROTECTED FREE SPEECH.  SINCE
THE ACTUAL REASON FOR THE REGENTS' DECISION WAS "IN TOTAL DISPUTE" IN
THE PLEADINGS, THE COURT REMANDED THE CASE FOR A FULL HEARING ON THIS
CONTESTED ISSUE OF FACT.  ID., AT 942-943.  SECOND, THE COURT OF
APPEALS HELD THAT, DESPITE THE RESPONDENT'S LACK OF TENURE, THE FAILURE
TO ALLOW HIM AN OPPORTUNITY FOR A HEARING WOULD VIOLATE THE
CONSTITUTIONAL GUARANTEE OF PROCEDURAL DUE PROCESS IF THE RESPONDENT
COULD SHOW THAT HE HAD AN "EXPECTANCY" OF RE-EMPLOYMENT.  IT,
THEREFORE, ORDERED THAT THIS ISSUE OF FACT ALSO BE AIRED UPON REMAND. 
ID., AT 943-944.  WE GRANTED A WRIT OF CERTIORARI, 403 U.S. 917, AND WE
HAVE CONSIDERED THIS CASE ALONG WITH BOARD OF REGENTS V. ROTH, ANTE, P.
564. 

        I 

THE FIRST QUESTION PRESENTED IS WHETHER THE RESPONDENT'S LACK OF A
CONTRACTUAL OR TENURE RIGHT TO RE-EMPLOYMENT, TAKEN ALONE, DEFEATS HIS
CLAIM THAT THE NONRENEWAL OF HIS CONTRACT VIOLATED THE FIRST AND
FOURTEENTH AMENDMENTS.  WE HOLD THAT IT DOES NOT. 

FOR AT LEAST A QUARTER-CENTURY, THIS COURT HAS MADE CLEAR THAT EVEN
THOUGH A PERSON HAS NO "RIGHT" TO A VALUABLE GOVERNMENTAL BENEFIT AND
EVEN THOUGH THE GOVERNMENT MAY DENY HIM THE BENEFIT FOR ANY NUMBER OF
REASONS, THERE ARE SOME REASONS UPON WHICH THE GOVERNMENT MAY NOT
RELY.  IT MAY NOT DENY A BENEFIT TO A PERSON ON A BASIS THAT INFRINGES
HIS CONSTITUTIONALLY PROTECTED INTERESTS-- ESPECIALLY, HIS INTEREST IN
FREEDOM OF APEECH.  FOR IF THE GOVERNMENT COULD DENY A BENEFIT TO A
PERSON BECAUSE OF HIS CONSTITUTIONALLY PROTECTED SPEECH OR
ASSOCIATIONS, HIS EXERCISE OF THOSE FREEDOMS WOULD IN EFFECT BE
PENALIZED AND INHIBITED.  THIS WOULD ALLOW THE GOVERNMENT TO "PRODUCE A
RESULT WHICH (IT) COULD NOT COMMAND DIRECTLY."  SPEISER V. RANDALL, 357
U.S. 513, 526.  SUCH INTERFERENCE WITH CONSTITUTIONAL RIGHTS IS
IMPERMISSIBLE. 

WE HAVE APPLIED THIS GENERAL PRINCIPLE TO DENIALS OF TAX EXEMPTIONS,
SPEISER V. RANDALL, SUPRA, UNEMPLOYMENT BENEFITS, SHERBERT V. VERNER,
374 U.S. 398, 404-405, AND WELFARE PAYMENTS, SHAPIRO V. THOMPSON, 394
U.S. 618, 627 N. 6; GRAHAM V. RICHARDSON, 403 U.S. 365, 374.  BUT, MOST
OFTEN, WE HAVE APPLIED THE PRINCIPLE TO DENIALS OF PUBLIC EMPLOYMENT. 
UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 100; WIEMAN V.
UPDEGRAFF, 344 U.S. 183, 192; SHELTON V. TUCKER, 364 U.S. 479, 485-486;
TORCASO V. WATKINS, 367 U.S. 488, 495-496; CAFETERIA WORKERS V.
MCELROY, 367 U.S. 886, 894; CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368
U.S. 278, 288; BAGGETT V. BULLITT, 377 U.S. 360; ELFBRANDT V. RUSSELL,
384 U.S. 11, 17; KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589, 605-606;
WHITEHILL V. ELKINS, 389 U.S. 54; UNITED STATES V. ROBEL, 389 U.S. 258;
PICKERING V. BOARD OF EDUCATION, 391 U.S. 563, 568.  WE HAVE APPLIED
THE PRINCIPLE REGARDLESS OF THE PUBLIC EMPLOYEE'S CONTRACTUAL OR OTHER
CLAIM TO A JOB.  COMPARE PICKERING V. BOARD OF EDUCATION, SUPRA, WITH
SHELTON V. TUCKER, SUPRA. 

THUS, THE RESPONDENT'S LACK OF A CONTRACTUAL OR TENURE "RIGHT" TO RE
EMPLOYMENT FOR THE 1969-1970 ACADEMIC YEAR IS IMMATERIAL TO HIS FREE
SPEECH CLAIM.  INDEED, TWICE BEFORE, THIS COURT HAS SPECIFICALLY HELD
THAT THE NONRENEWAL OF A NONTENURED PUBLIC SCHOOL TEACHER'S ONE-YEAR
CONTRACT MAY NOT BE PREDICATED ON HIS EXERCISE OF FIRST AND FOURTEENTH
AMENDMENT RIGHTS.  SHELTON V. TUCKER, SUPRA; KEYISHIAN V. BOARD OF
REGENTS, SUPRA.  WE REAFFIRM THOSE HOLDINGS HERE. 

IN THIS CASE, OF COURSE, THE RESPONDENT HAS YET TO SHOW THAT THE
DECISION NOT TO RENEW HIS CONTRACT WAS, IN FACT, MADE IN RETALIATION
FOR HIS EXERCISE OF THE CONSTITUTIONAL RIGHT OF FREE SPEECH.  THE
DISTRICT COURT FORECLOSED ANY OPPORTUNITY TO MAKE THIS SHOWING WHEN IT
GRANTED SUMMARY JUDGMENT.  HENCE, WE CANNOT NOW HOLD THAT THE BOARD OF
REGENTS' ACTION WAS INVALID. 

BUT WE AGREE WITH THE COURT OF APPEALS THAT THERE IS A GENUINE
DISPUTE AS TO "WHETHER THE COLLEGE REFUSED TO RENEW THE TEACHING
CONTRACT ON AN IMPERMISSIBLE BASIS-- AS A REPRISAL FOR THE EXERCISE OF
CONSTITUTIONALLY PROTECTED RIGHTS."  430 F.2D, AT 943.  THE RESPONDENT
HAS ALLEGED THAT HIS NONRETENTION WAS BASED ON HIS TESTIMONY BEFORE
LEGISLATIVE COMMITTEES AND HIS OTHER PUBLIC STATEMENTS CRITICAL OF THE
REGENTS' POLICIES.  AND HE HAS ALLEGED THAT THIS PUBLIC CRITICISM WAS
WITHIN THE FIRST AND FOURTEENTH AMENDMENTS' PROTECTION OF FREEDOM OF
SPEECH.  PLAINLY, THESE ALLEGATIONS PRESENT A BONA FIDE CONSTITUTIONAL
CLAIM.  FOR THIS COURT HAS HELD THAT A TEACHER'S PUBLIC CRITICISM OF
HIS SUPERIORS ON MATTERS OF PUBLIC CONCERN MAY BE CONSTITUTIONALLY
PROTECTED AND MAY, THEREFORE, BE AN IMPERMISSIBLE BASIS FOR TERMINATION
OF HIS EMPLOYMENT.  PICKERING V. BOARD OF EDUCATION, SUPRA. 

FOR THIS REASON WE HOLD THAT THE GRANT OF SUMMARY JUDGMENT AGAINST
THE RESPONDENT, WITHOUT FULL EXPLORATION OF THIS ISSUE, WAS IMPROPER. 

        II 

THE RESPONDENT'S LACK OF FORMAL CONTRACTUAL OR TENURE SECURITY IN
CONTINUED EMPLOYMENT AT ODESSA JUNIOR COLLEGE, THOUGH IRRELEVANT TO HIS
FREE SPEECH CLAIM, IS HIGHLY RELEVANT TO HIS PROCEDURAL DUE PROCESS
CLAIM.  BUT IT MAY NOT BE ENTIRELY DISPOSITIVE. 

WE HAVE HELD TODAY IN BOARD OF REGENTS V. ROTH, ANTE, P. 564, THAT
THE CONSTITUTION DOES NOT REQUIRE OPPORTUNITY FOR A HEARING BEFORE THE
NONRENEWAL OF A NONTENURED TEACHER'S CONTRACT, UNLESS HE CAN SHOW THAT
THE DECISION NOT TO REHIRE HIM SOMEHOW DEPRIVED HIM OF AN INTEREST IN
"LIBERTY" OR THAT HE HAD A "PROPERTY" INTEREST IN CONTINUED EMPLOYMENT,
DESPITE THE LACK OF TENURE OR A FORMAL CONTRACT.  IN ROTH THE TEACHER
HAD NOT MADE A SHOWING ON EITHER POINT TO JUSTIFY SUMMARY JUDGMENT IN
HIS FAVOR. 

SIMILARLY, THE RESPONDENT HERE HAS YET TO SHOW THAT HE HAS BEEN
DEPRIVED OF AN INTEREST THAT COULD INVOKE PROCEDURAL DUE PROCESS
PROTECTION.  AS IN ROTH, THE MERE SHOWING THAT HE WAS NOT REHIRED IN
ONE PARTICULAR JOB, WITHOUT MORE, DID NOT AMOUNT TO A SHOWING OF A LOSS
OF LIBERTY.  /5/  NOR DID IT AMOUNT TO A SHOWING OF A LOSS OF
PROPERTY. 

BUT THE RESPONDENT'S ALLEGATIONS-- WHICH WE MUST CONSTRUE MOST
FAVORABLY TO THE RESPONDENT AT THIS STAGE OF THE LITIGATION-- DO RAISE
A GENUINE ISSUE AS TO HIS INTEREST IN CONTINUED EMPLOYMENT AT ODESSA
JUNIOR COLLEGE.  HE ALLEGED THAT THIS INTEREST, THOUGH NOT SECURED BY A
FORMAL CONTRACTUAL TENURE PROVISION, WAS SECURED BY A NO LESS BINDING
UNDERSTANDING FOSTERED BY THE COLLEGE ADMINISTRATION.  IN PARTICULAR,
THE RESPONDENT ALLEGED THAT THE COLLEGE HAD A DE FACTO TENURE PROGRAM,
AND THAT HE HAD TENURE UNDER THAT PROGRAM.  HE CLAIMED THAT HE AND
OTHERS LEGITIMATELY RELIED UPON AN UNUSUAL PROVISION THAT HAD BEEN IN
THE COLLEGE'S OFFICIAL FACULTY GUIDE FOR MANY YEARS: 

"TEACHER TENURE:  ODESSA COLLEGE HAS NO TENURE SYSTEM.  THE
ADMINISTRATION OF THE COLLEGE WISHES THE FACULTY MEMBER TO FEEL THAT HE
HAS PERMANENT TENURE AS LONG AS HIS TEACHING SERVICES ARE SATISFACTORY
AND AS LONG AS HE DISPLAYS A COOPERATIVE ATTITUDE TOWARD HIS CO-WORKERS
AND HIS SUPERIORS, AND AS LONG AS HE IS HAPPY IN HIS WORK."  MOREOVER,
THE RESPONDENT CLAIMED LEGITIMATE RELIANCE UPON GUIDELINES PROMULGATED
BY THE COORDINATING BOARD OF THE TEXAS COLLEGE AND UNIVERSITY SYSTEM
THAT PROVIDED THAT A PERSON, LIKE HIMSELF, WHO HAD BEEN EMPLOYED AS A
TEACHER IN THE STATE COLLEGE AND UNIVERSITY SYSTEM FOR SEVEN YEARS OR
MORE HAS SOME FOR OF JOB TENURE.  /6/ THUS, THE RESPONDENT OFFERED TO
PROVE THAT A TEACHER WITH HIS LONG PERIOD OF SERVICE AT THIS PARTICULAR
STATE COLLEGE HAD NO LESS A "PROPERTY"  INTEREST IN CONTINUED
EMPLOYMENT THAN A FORMALLY TENURED TEACHER AT OTHER COLLEGES, AND HAD
NO LESS A PROCEDURAL DUE PROCESS RIGHT TO A STATEMENT OF REASONS AND A
HEARING BEFORE COLLEGE OFFICIALS UPON THEIR DECISION NOT TO RETAIN
HIM. 

WE HAVE MADE CLEAR IN ROTH, SUPRA, AT 571-572, THAT "PROPERTY"
INTERESTS SUBJECT TO PROCEDURAL DUE PROCESS PROTECTION ARE NOT LIMITED
BY A FEW RIGID, TECHNICAL FORMS.  RATHER, "PROPERTY" DENOTES A BROAD
RANGE OF INTERESTS THAT ARE SECURED BY "EXISTING RULES OR
UNDERSTANDINGS."  ID., AT 577.  A PERSON'S INTEREST IN A BENEFIT IS A
"PROPERTY" INTEREST FOR DUE PROCESS PURPOSES IF THERE ARE SUCH RULES OR
MUTUALLY EXPLICIT UNDERSTANDINGS THAT SUPPORT HIS CLAIM OF ENTITLEMENT
TO THE BENEFIT AND THAT HE MAY INVOKE AT A HEARING.  IBID. 

A WRITTEN CONTRACT WITH AN EXPLICIT TENURE PROVISION CLEARLY IS
EVIDENCE OF A FORMAL UNDERSTANDING THAT SUPPORTS A TEACHER'S CLAIM OF
ENTITLEMENT TO CONTINUED EMPLOYMENT UNLESS SUFFICIENT "CAUSE" IS
SHOWN.  YET ABSENCE OF SUCH AN EXPLICIT CONTRACTUAL PROVISION MAY NOT
ALWAYS FORECLOSE THE POSSIBILITY THAT A TEACHER HAS A "PROPERTY"
INTEREST IN RE-EMPLOYMENT.  FOR EXAMPLE, THE LAW OF CONTRACTS IN MOST,
IF NOT ALL, JURISDICTIONS LONG HAS EMPLOYED A PROCESS BY WHICH
AGREEMENTS, THOUGH NOT FORMALIZED IN WRITING, MAY BE "IMPLIED."  3
A.CORBIN ON CONTRACTS 561-572A (1960).  EXPLICIT CONTRACTUAL PROVISIONS
MAY BE SUPPLEMENTED BY OTHER AGREEMENTS IMPLIED FROM "THE PROMISOR'S
WORDS AND CONDUCT IN THE LIGHT OF THE SURROUNDING CIRCUMSTANCES."  ID.,
AT SEC. 562.  AND, "(THE MEANING OF (THE PROMISOR'S) WORDS AND ACTS IS
FOUND BY RELATING THEM TO THE USAGE OF THE PAST."  IBID. 

A TEACHER, LIKE THE RESPONDENT, WHO HAS HELD HIS POSITION FOR A
NUMBER OF YEARS, MIGHT BE ABLE TO SHOW FROM THE CIRCUMSTANCES OF THIS
SERVICE-- AND FROM OTHER RELEVANT FACTS-- THAT HE HAS A LEGITIMATE
CLAIM OF ENTITLEMENT TO JOB TENURE.  JUST AS THIS COURT HAS FOUND THERE
TO BE A "COMMON LAW OF A PARTICULAR INDUSTRY OR OF A PARTICULAR PLANT"
THAT MAY SUPPLEMENT A COLLECTIVE-BARGAINING AGREEMENT, STEELWORKERS V.
WARRIOR & GULF CO., 363 U.S. 574, 579, SO THERE MAY BE AN UNWRITTEN
"COMMON LAW" IN A PARTICULAR UNIVERSITY THAT CERTAIN EMPLOYEES SHALL
HAVE THE EQUIVALENT OF TENURE.  THIS IS PARTICULARLY LIKELY IN A
COLLEGE OR UNIVERSITY, LIKE ODESSA JUNIOR COLLEGE, THAT HAS NO EXPLICIT
TENURE SYSTEM EVEN FOR SENIOR MEMBERS OF ITS FACULTY, BUT THAT
NONETHELESS MAY HAVE CREATED SUCH A SYSTEM IN PRACTICE.  SEE C. BYSE &
L. JOUGHIN, TENURE IN AMERICAN HIGHER EDUCATION 17-28 (1959).  /7/ 

IN THIS CASE, THE RESPONDENT HAS ALLEGED THE EXISTENCE OF RULES AND
UNDERSTANDINGS, PROMULGATED AND FOSTERED BY STATE OFFICIALS, THAT MAY
JUSTIFY HIS LEGITIMATE CLAIM OF ENTITLEMENT TO CONTINUED EMPLOYMENT
ABSENT "SUFFICIENT CAUSE."  WE DISAGREE WITH THE COURT OF APPEALS
INSOFAR AS IT HELD THAT A MERE SUBJECTIVE "EXPECTANCY" IS PROTECTED BY
PROCEDURAL DUE PROCESS, BUT WE AGREE THAT THE RESPONDENT MUST BE GIVEN
AN OPPORTUNITY TO PROVE THE LEGITIMACY OF HIS CLAIM OF SUCH ENTITLEMENT
IN LIGHT OF "THE POLICIES AND PRACTICES OF THE INSTITUTION."  430 F.2D,
AT 943.  PROOF OF SUCH A PROPERTY INTEREST WOULD NOT, OF COURSE,
ENTITLE HIM TO REINSTATEMENT.  BUT SUCH PROOF WOULD OBLIGATE COLLEGE
OFFICIALS TO GRANT A HEARING AT HIS REQUEST, WHERE HE COULD BE INFORMED
OF THE GROUNDS FOR HIS NONRETENTION AND CHALLENGE THEIR SUFFICIENCY. 
THEREFORE, WHILE WE DO NOT WHOLLY AGREE WITH THE OPINION OF THE COURT
OF APPEALS, ITS JUDGMENT REMANDING THIS CASE TO THE DISTRICT COURT IS

              AFFIRMED. 

/1/  THE PRESS RELEASE STATED, FOR EXAMPLE, THAT THE RESPONDENT HAD
DEFIED HIS SUPERIORS BY ATTENDING LEGISLATIVE COMMITTEE MEETINGS WHEN
COLLEGE OFFICIALS HAD SPECIFICALLY REFUSED TO PERMIT HIM TO LEAVE HIS
CLASES FOR THAT PURPOSE. 

/2/  THE PETITIONERS CLAIMED, IN THEIR MOTION FOR SUMMARY JUDGMENT,
THAT THE DECISION NOT TO RETAIN THE RESPONDENT WAS REALLY BASED ON HIS
INSUBORDINATE CONDUCT.  SEE N. 1, SUPRA. 

/3/  THE PETITIONERS, FOR WHOM SUMMARY JUDGMENT WAS GRANTED,
SUBMITTED NO AFFIDAVITS WHATEVER.  THE RESPONDENT'S AFFIDAVITS WERE
VERY SHORT AND ESSENTIALLY REPEATED THE GENERAL ALLEGATIONS OF HIS
COMPLAINT. 

/4/  THE FINDINGS AND CONCLUSIONS OF THE DISTRICT COURT-- ONLY
SEVERAL LINES LONG-- ARE NOT OFFICIALLY REPORTED. 

/5/  THE COURT OF APPEALS SUGGESTED THAT THE RESPONDENT MIGHT HAVE A
DUE PROCESS RIGHT TO SOME KIND OF HEARING SIMPLY IF HE ASSERTS TO
COLLEGE OFFICIALS THAT THEIR DECISION WAS BASED ON HIS CONSTITUTIONALLY
PROTECTED CONDUCT.  430 F.2D, AT 944.  WE HAVE REJECTED THIS APPROACH
IN BOARD OF REGENTS V. ROTH, ANTE, AT 575 N. 14. 

/6/  THE RELEVANT PORTION OF THE GUIDELINES, ADOPTED AS "POLICY PAPER
1" BY THE COORDINATING BOARD ON OCTOBER 16, 1967 READS: 

"A.  TENURE 

"TENURE MEANS ASSURANCE TO AN EXPERIENCED FACULTY MEMBER THAT HE MAY
EXPECT TO CONTINUE IN HIS ACADEMIC POSITION UNLESS ADEQUATE CAUSE FOR
DISMISSAL IS DEMONSTRATED IN A FAIR HEARING, FOLLOWING ESTABLISHED
PROCEDURES OF DUE PROCESS. 

"A SPECIFIC SYSTEM OF FACULTY TENURE UNDERGIRDS THE INTEGRITY OF
EACH ACADEMIC INSTITUTION.  IN THE TEXAS PUBLIC COLLEGES AND
UNIVERSITITES, THIS TENURE SYSTEM SHOULD HAVE THESE COMPONENTS: 

"(1) BEGINNING WITH APPOINTMENT TO THE RANK OF FULL-TIME INSTRUCTOR
OR A HIGHER RANK, THE PROBATIONARY PERIOD FOR A FACULTY MEMBER SHALL
NOT EXCEED SEVEN YEARS, INCLUDING WITHIN THIS PERIOD APPROPRIATE FULL
TIME SERVICE IN ALL INSTITUTIONS OF HIGHER EDUCATION.  THIS IS SUBJECT
TO THE PROVISION THAT WHEN, AFTER A TERM OF PROBATIONARY SERVICE OF
MORE THAN THREE YEARS IN ONE OR MORE INSTITUTIONS, A FACULTY MEMBER IS
EMPLOYED BY ANOTHER INSTITUTION, IT MAY BE AGREED IN WRITING THAT HIS
NEW APPOINTMENT IS FOR A PROBATIONARY PERIOD OF NOT MORE THAN FOUR
YEARS (EVEN THOUGH THEREBY THE PERSON'S TOTAL PROBATIONARY PERIOD IN
THE ACADEMIC PROFESSION IS EXTENDED BEYOND THE NORMAL MAXIMUM OF SEVEN
YEARS). 

        .          .          .         . 

"(3) ADEQUATE CAUSE FOR DISMISSAL FOR A FACULTY MEMBER WITH TENURE
MAY BE ESTABLISHED BY DEMONSTRATING PROFESSIONAL INCOMPETENCE, MORAL
TURPITUDE, OR GROSS NEGLECT OF PROFESSIONAL RESPONSIBILITIES." 

THE RESPONDENT ALLEGES THAT, BECAUSE HE HAS BEEN EMPLOYED AS A "FULL
TIME INSTRUCTOR" OR PROFESSOR WITHIN THE TEXAS COLLEGE AND UNIVERSITY
SYSTEM FOR 10 YEARS, HE SHOULD HAVE "TENURE" UNDER THESE PROVISIONS. 

/7/  WE DO NOT NOW HOLD THAT THE RESPONDENT HAS ANY SUCH LEGITIMATE
CLAIM OF ENTITLEMENT TO JOB TENURE.  FOR "(PPRPERTY INTERESTS . . . ARE
NOT CREATED BY THE CONSTITUTION.  RATHER, THEY ARE CREATED AND THEIR
DIMENSIONS ARE DEFINED BY EXISTING RULES OR UNDERSTANDINGS THAT STEM
FROM AN INDEPENDENT SOURCE SUCH AS STATE LAW . . . " BOARD OF REGENTS
V. ROTH, SUPRA, AT 577.  IF IT IS THE LAW OF TEXAS THAT A TEACHER IN
THE RESPONDENT'S POSITION HAS NO CONTRACTUAL OR OTHER CLAIM TO JOB
TENURE, THE RESPONDENT'S CLAIM WOULD BE DEFEATED. 

MR. JUSTICE POWELL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. CHIEF JUSTICE BURGER, CONCURRING.  /1/ 

I CONCUR IN THE COURT'S JUDGMENTS AND OPINIONS IN SINDERMANN AND
ROTH, BUT THERE IS ONE CENTRAL POINT IN BOTH DECISIONS THAT I WOULD
LIKE TO UNDERSCORE SINCE IT MAY HAVE BEEN OBSCURED IN THE COMPREHENSIVE
DISCUSSION OF THE CASES.  THAT POINT IS THAT THE RELATIONSHIP BETWEN A
STATE INSTITUTION AND ONE OF ITS TEACHERS IS ESSENTIALLY A MATTER OF
STATE CONCERN AND STATE LAW.  THE COURT HOLDS TODAY ONLY THAT A STATE
EMPLOYED TEACHER WHO HAS A RIGHT TO RE-EMPLOYMENT UNDER STATE LAW,
ARISING FROM EITHER AN EXPRESS OR IMPLIED CONTRACT, HAS, IN TURN, A
RIGHT GUARANTEED BY THE FOURTEENTH AMENDMENT TO SOME FORM OF PRIOR
ADMINISTRATIVE OR ACADEMIC HEARING ON THE CAUSE FOR NONRENEWAL OF HIS
CONTRACT.  THUS, WHETHER A PARTICULAR TEACHER IN A PARTICULAR CONTEXT
HAS ANY RIGHT TO SUCH ADMINISTRATIVE HEARING HINGES ON A QUESTION OF
STATE LAW.  THE COURT'S OPINION MAKES THIS POINT VERY SHARPLY: 

"PROPERTY INTERESTS . . . ARE CREATED AND THEIR DIMENSIONS ARE
DEFINED BY EXISTING RULES OR UNDERSTANDINGS THAT STEM FROM AN
INDEPENDENT SOURCE SUCH AS STATE LAW . . . . "  BOARD OF REGENTS V.
ROTH, ANTE, AT 577. 

BECAUSE OF AVAILABILITY OF THE FOURTEENTH AMENDMENT RIGHT TO A PRIOR
ADMINISTRATIVE HEARING TURNS IN EACH CASE ON A QUESTION OF STATE LAW,
THE ISSUE OF ABSTENTION WILL ARISE IN FUTURE CASES CONTESTING WHETHER A
PARTICULAR TEACHER IS ENTITLED TO A HEARING PRIOR TO NONRENEWAL OF HIS
CONTRACT.  IF RELEVANT STATE CONTRACT LAW IS UNCLEAR, A FEDERAL COURT
SHOULD, IN MY VIEW, ABSTAIN FROM DECIDING WHETHER HE IS
CONSTITUTIONALLY ENTITLED TO A PRIOR HEARING, AND THE TEACHER SHOULD BE
LEFT TO RESORT TO STATE COURTS ON THE QUESTIONS ARISING UNDER STATE
LAW. 

/1/  THIS OPINION APPLIES ALSO TO NO. 71-162, BOARD OF REGENTS OF
STATE COLLEGES ET AL. V. ROTH, ANTE, P. 564. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING
NO. 71-162, ANTE, P. 564, AND DISSENTING IN PART IN NO. 70-36. 

ALTHOUGH I AGREE WITH PART I OF THE COURT'S OPINION IN NO. 70-36, I
ALSO AGREE WITH MY BROTHER MARSHALL THAT "RESPONDENTS) (WERE) DENIED
DUE PROCESS WHEN (THEIR) CONTRACTS) (WERE) NOT RENEWED AND (THEY WERE)
NOT INFORMED OF THE REASONS AND GIVEN AN OPPORTUNITY TO RESPOND." 
ANTE, AT 590.  SINCE RESPONDENTS WERE ENTITLED TO SUMMARY JUDGMENT ON
THAT ISSUE, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS IN NO.
71-162, AND, TO THE EXTENT INDICATED BY MY BROTHER MARSHALL, I WOULD
MODIFY THE JUDGMENT OF THE COURT OF APPEALS IN NO. 70-36. 

MR. JUSTICE MARSHALL, DISSENTING IN PART. 

RESPONDENT WAS A TEACHER IN THE STATE COLLEGE SYSTEM OF THE STATE OF
TEXAS FOR A DECADE BEFORE THE BOARD OF REGENTS OF ODESSA JUNIOR COLLEGE
DECIDED NOT TO RENEW HIS CONTRACT.  HE BROUGHT THIS SUIT IN FEDERAL
DISTRICT COURT CLAIMING THAT THE DECISION NOT TO REHIRE HIM WAS IN
RETALIATION FOR HIS PUBLIC CRITICISM OF THE POLICIES OF THE COLLEGE
ADMINISTRATION IN VIOLATION OF THE FIRST AMENDMENT, AND THAT BECAUSE
THE DECISION WAS MADE WITHOUT GIVING HIM A STATEMENT OF REASONS AND A
HEARING, IT DENIED HIM THE DUE PROCESS OF LAW GUARANTEED BY THE
FOURTEENTH AMENDMENT.  THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR
PETITIONERS, BUT THE COURT OF APPEALS REVERSED AND REMANDED THE CASE
FOR FURTHER PROCEEDINGS.  THIS COURT AFFIRMS THE JUDGMENT OF THE COURT
OF APPEALS. 

I AGREE WITH PART I OF THE COURT'S OPINION HOLDING THAT RESPONDENT
HAS PRESENTED A BONA FIDE FIRST AMENDMENT CLAIM THAT SHOULD BE
CONSIDERED FULLY BY THE DISTRICT COURT.  BUT, FOR THE REASONS STATED IN
MY DISSENTING OPINION IN BOARD OF REGENTS V. ROTH, NO. 71-162, ANTE, P.
587, I WOULD MODIFY THE JUDGMENT OF THE COURT OF APPEALS TO DIRECT THE
DISTRICT COURT TO ENTER SUMMARY JUDGMENT FOR RESPONDENT ENTITLING HIM
TO A STATEMENT OF REASONS WHY HIS CONTRACT WAS NOT RENEWED AND A
HEARING ON DISPUTED ISSUES OF FACT. 

W. O. SHAFER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS LUCIUS D. BUNTON. 

MICHAEL H. GOTTESMAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE GEORGE H. COHEN AND WARREN BURNETT. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY DAVID RUBIN
AND RICHARD J. MEDALIE FOR THE NATIONAL EDUCATION ASSOCIATION; BY JOHN
LIGTENBERG AND ANDREW J. LEAHY FOR THE AMERICAN FEDERATION OF TEACHERS;
AND BY HERMAN I. ORENTLICHER AND WILLIAM W. VAN ALSTYNE FOR THE
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS. 
..END :



GRAVEL V. UNITED STATES, 408 U.S. 606 


       GRAVEL V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT

        NO. 71-1017.  ARGUED APRIL 19-20, 1972-- DECIDED JUNE 29,

           1972  /1/ 


A UNITED STATES SENATOR READ TO A SUBCOMMITTEE FROM CLASSIFIED
DOCUMENTS (THE PENTAGON PAPERS), WHICH HE THEN PLACED IN THE PUBLIC
RECORD.  THE PRESS REPORTED THAT THE SENATOR HAD ARRANGED FOR PRIVATE
PUBLICATION OF THE PAPERS.  A GRAND JURY INVESTIGATING WHETHER
VIOLATIONS OF FEDERAL LAW WERE IMPLICATED SUBPOENAED AN AIDE TO THE
SENATOR.  THE SENATOR, AS AN INTERVENOR, MOVED TO QUASH THE SUBPOENA,
CONTENDING THAT IT WOULD VIOLATE THE SPEECH OR DEBATE CLAUSE TO COMPEL
THE AIDE TO TESTIFY.  THE DISTRICT COURT DENIED THE MOTION BUT LIMITED
THE QUESTIONING OF THE AIDE.  THE COURT OF APPEALS AFFIRMED THE DENIAL
BUT MODIFIED THE PROTECTIVE ORDER, RULING THAT CONGRESSIONAL AIDES AND
OTHER PERSONS MAY NOT BE QUESTIONED REGARDING LEGISLATIVE ACTS AND
THAT, THOUGH THE PRIVATE PUBLICATION WAS NOT CONSTITUTIONALLY
PROTECTED, A COMMON-LAW PRIVILEGE SIMILAR TO THE PRIVILEGE OF
PROTECTING EXECUTIVE OFFICIALS FROM LIABILITY FOR LIBEL, SEE BARR V.
MATTEO, 360 U.S. 564, BARRED QUESTIONING THE AIDE CONCERNING SUCH
PUBLICATION.  HELD: 

1.  THE SPEECH OR DEBATE CLAUSE APPLIES NOT ONLY TO A MEMBER OF
CONGRESS BUT ALSO TO HIS AIDE, INSOFAR AS THE AIDE'S CONDUCT WOULD BE A
PROTECTED LEGISLATIVE ACT IF PERFORMED BY THE MEMBER HIMSELF.  KILBOURN
V. THOMPSON, 103 U.S. 168; DOMBROWSKI V. EASTLAND, 387 U.S. 82; AND
POWELL V. MCCORMACK, 395 U.S. 486, DISTINGUISHED.  PP. 613-622. 

2.  THE SPEECH OR DEBATE CLAUSE DOES NOT EXTEND IMMUNITY TO THE
SENATOR'S AIDE FROM TESTIFYING BEFORE THE GRAND JURY ABOUT THE ALLEGED
ARRANGEMENT FOR PRIVATE PUBLICATION OF THE PENTAGON PAPERS, AS SUCH
PUBLICATION HAD NO CONNECTION WITH THE LEGISLATIVE PROCESS.  PP. 622
627. 

3.  THE AIDE, SIMILARLY, HAD NO NONCONSTITUTIONAL TESTIMONIAL
PRIVILEGE FROM BEING QUESTIONED BY THE GRAND JURY IN CONNECTION WITH
ITS INQUIRY INTO WHETHER PRIVATE PUBLICATION OF THE PAPERS VIOLATED
FEDERAL LAW.  P. 627. 

4.  THE COURT OF APPEALS' PROTECTIVE ORDER WAS OVERLY BROAD IN
ENJOINING INTERROGATION OF THE AIDE WITH RESPECT TO ANY ACT, "IN THE
BROADEST SENSE," THAT HE PERFORMED WITHIN THE SCOPE OF HIS EMPLOYMENT,
SINCE THE AIDE'S IMMUNITY EXTENDED ONLY TO LEGISLATIVE ACTS AS TO WHICH
THE SENATOR WOULD BE IMMUNE.  AND THE AIDE MAY BE QUESTIONED BY THE
GRAND JURY ABOUT THE SOURCE OF CLASSIFIED DOCUMENTS IN THE SENATOR'S
POSSESSION, AS LONG AS THE QUESTIONING IMPLICATES NO LEGISLATIVE ACT. 
THE ORDER IN OTHER RESPECTS WOULD SUFFICE IF IT FORBADE QUESTIONING THE
AIDE OR OTHERS ABOUT THE CONDUCT OR MOTIVES OF THE SENATOR OR HIS AIDES
AT THE SUBCOMMITTEE MEETING; COMMUNICATIONS BETWEEN THE SENATOR AND HIS
AIDES RELATING TO THAT MEETING OR ANY LEGISLATIVE ACT OF THE SENATOR;
OR STEPS OF THE SENATOR OR HIS AIDES PREPARATORY FOR THE MEETING, IF
NOT RELEVANT TO THIRD-PARTY CRIMES.  PP. 627-629. 

445 F.2D 753, VACATED AND REMANDED. 

WHITE, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER, C.J.,
AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  STEWART, J., FILED
AN OPINION DISSENTING IN PART, POST, P. 629.  DOUGLAS J., FILED A
DISSENTING OPINION, POST, P. 633.  BRENNAN, J., FILED A DISSENTING
OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED, POST, P. 648. 

OPINION OF THE COURT BY MR. JUSTICE WHITE, ANNOUNCED BY MR. JUSTICE
BLACKMUN. 

THESE CASES ARISE OUT OF THE INVESTIGATION BY A FEDERAL GRAND JURY
INTO POSSIBLE CRIMINAL CONDUCT WITH RESPECT TO THE RELEASE AND
PUBLICATION OF A CLASSIFIED DEFENSE DEPARTMENT STUDY ENTITLED HISTORY
OF THE UNITED STATES DECISION-MAKING PROCESS ON VIET NAM POLICY.  THIS
DOCUMENT, POPULARLY KNOWN AS THE PENTAGON PAPERS, BORE A DEFENSE
SECURITY CLASSIFICATION OF TOP SECRET-SENSITIVE.  THE CRIMES BEING
INVESTIGATED INCLUDED THE RETENTION OF PUBLIC PROPERTY OR RECORDS WITH
INTENT TO CONVERT (18 U.S.C. 641), THE GATHERING AND TRANSMITTING OF
NATIONAL DEFENSE INFORMATION (18 U.S.C. 793), THE CONCEALMENT OR
REMOVAL OF PUBLIC RECORDS OR DOCUMENTS (18 U.S.C. 2071), AND CONSPIRACY
TO COMMIT SUCH OFFENSES AND TO DEFRAUD THE UNITED STATES (18 U.S.C.
371). 

AMONG THE WITNESSES SUBPOENAED WERE LEONARD S. RODBERG, AN ASSISTANT
TO SENATOR MIKE GRAVEL OF ALASKA AND A RESIDENT FELLOW AT THE INSTITUTE
OF POLICY STUDIES, AND HOWARD WEBBER, DIRECTOR OF M.I.T. PRESS. 
SENATOR GRAVEL, AS INTERVENOR, /1/  FILED MOTIONS TO QUASH THE
SUBPOENAS AND TO REQUIRE THE GOVERNMENT TO SPECIFY THE PARTICULAR
QUESTIONS TO BE ADDRESSED TO RODBERG.  /2/  HE ASSERTED THAT REQUIRING
THESE WITNESSES TO APPEAR AND TESTIFY WOULD VIOLATE HIS PRIVILEGE UNDER
THE SPEECH OR DEBATE CLAUSE OF THE UNITED STATES CONSTITUTION, ART. I,
SEC. 6, CL. 1. 

IT APPEARED THAT ON THE NIGHT OF JUNE 29, 1971, SENATOR GRAVEL, AS
CHAIRMAN OF THE SUBCOMMITTEE ON BUILDINGS AND GROUNDS OF THE SENATE
PUBLIC WORKS COMMITTEE, CONVENED A MEETING OF THE SUBCOMMITTEE AND
THERE READ EXTENSIVELY FROM A COPY OF THE PENTAGON PAPERS.  HE THEN
PLACED THE ENTIRE 47 VOLUMES OF THE STUDY IN THE PUBLIC RECORD. 
RODBERG HAD BEEN ADDED TO THE SENATOR'S STAFF EARLIER IN THE DAY AND
ASSISTED GRAVEL IN PREPARING FOR AND CONDUCTING THE HEARING.  /3/  SOME
WEEKS LATER THERE WERE PRESS REPORTS THAT GRAVEL HAD ARRANGED FOR THE
PAPERS TO BE PUBLISHED BY BEACON PRESS /4/  AND THAT MEMBERS OF
GRAVEL'S STAFF HAD TALKED WITH WEBBER AS EDITOR OF M.I.T. PRESS.  /5/

THE DISTRICT COURT OVERRULED THE MOTIONS TO QUASH AND TO SPECIFY
QUESTIONS BUT ENTERED AN ORDER PROSCRIBING CERTAIN CATEGORIES OF
QUESTIONS.  UNITED STATES V. DOE, 332 F.SUPP.  930 (MASS. 1971).  THE
GOVERNMENT'S CONTENTION THAT FOR PURPOSES OF APPLYING THE SPEECH OR
DEBATE CLAUSE THE COURTS WERE FREE TO INQUIRE INTO THE REGULARITY OF
THE SUBCOMMITTEE MEETING WAS REJECTED.  /6/  BECAUSE THE CLAUSE
PROTECTED ALL LEGISLATIVE ACTS, IT WAS HELD TO SHIELD FROM INQUIRY
ANYTHING THE SENAOTR DID AT THE SUBCOMMITTEE MEETING AND "CERTAIN ACTS
DONE IN PREPARATION THEREFOR."  ID., AT 935.  THE SENATOR'S PRIVILEGE
ALSO PROHIBITED "INQUIRY INTO THINGS DONE BY DR. RODBERG AS THE
SENATOR'S AGENT OR ASSISTANT WHICH WOULD HAVE BEEN LEGISLATIVE ACTS,
AND THEREFORE PRIVILEGED, IF PERFORMED BY THE SENATOR PERSONALLY." 
ID., AT 937-938.  /7/  THE TRIAL COURT, HOWEVER, HELD THE PRIVATE
PUBLICATION OF THE DOCUMENTS WAS NOT PRIVILEGED BY THE SPEECH OR DEBATE
CLAUSE.  ID., AT 936.  /8/ 

THE COURT OF APPEALS AFFIRMED THE DENIAL OF THE MOTIONS OF QUASH BUT
MODIFIED THE PROTECTIVE ORDER TO REFLECT ITS OWN VIEWS OF THE SCOPE OF
THE CONGRESSIONAL PRIVILEGE.  UNITED STATES V. DOE, 455 F.2D 753 (CA1
1972).  AGREEING THAT SENATOR AND AIDE WERE ONE FOR THE PURPOSES OF THE
SPEECH OR DEBATE CLAUSE AND THAT THE CLAUSE FORECLOSED INQUIRY OF BOTH
SENATOR AND AIDE WITH RESPECT TO LEGISLATIVE ACTS, THE COURT OF APPEALS
ALSO VIEWED THE PRIVILEGE AS BARRING DIRECT INQUIRY OF THE SENATOR OR
HIS AIDE, BUT NOT OF THIRD PARTIES, AS TO THE SOURCES OF THE SENATOR'S
INFORMATION USED IN PERFORMING LEGISLATIVE DUTIES.  /9/  ALTHOUGH IT
DID NOT CONSIDER PRIVATE PUBLICATION BY THE SENATOR OR BEACON PRESS TO
BE PROTECTED BY THE CONSTITUTION, THE COURT OF APPEALS APPARENTLY HELD
THAT NEITHER SENATOR NOR AIDE COULD BE QUESTIONED ABOUT IT BECAUSE OF A
COMMON-LAW PRIVILEGE AKIN TO THE JUDICIALLY CREATED IMMUNITY OF
EXECUTIVE OFFICERS FROM LIABILITY FOR LIBEL CONTAINED IN A NEWS RELEASE
ISSUED IN THE COURSE OF THEIR NORMAL DUTIES.  SEE BARR V. MATTEO, 360
U.S. 564 (1959).  THIS PRIVILEGE, FASHIONED BY THE COURT OF APPEALS,
WOULD NOT PROTECT THIRD PARTIES FROM SIMILAR INQUIRIES BEFORE THE GRAND
JURY.  AS MODIFIED BY THE COURT OF APPEALS, THE PROTECTIVE ORDER TO BE
OBSERVED BY PROSECUTION AND GRAND JURY WAS: 

     "(1) NO WITNESS BEFORE THE GRAND JURY CURRENTLY INVESTIGATING

  THE RELEASE OF THE PENTAGON PAPERS MAY BE QUESTIONED ABOUT

  SENATOR MIKE GRAVEL'S CONDUCT AT A MEETING OF THE SUBCOMMITTEE ON

  PUBLIC BUILDINGS AND GROUNDS ON JUNE 29, 1971, NOR, IF THE

  QUESTIONS ARE DIRECTED TO THE MOTIVES OR PURPOSES BEHIND THE

  SENATOR'S CONDUCT AT THAT MEETING, ABOUT ANY COMMUNICATIONS WITH

  HIM OR WITH HIS AIDES REGARDING THE ACTIVITIES OF THE SENATOR OR

  HIS AIDES DURING THE PERIOD OF THEIR EMPLOYMENT, IN PREPARATION

  FOR AND RELATED TO SAID MEETING. 

     "(2) DR. LEONARD S. RODBERG MAY NOT BE QUESTIONED ABOUT HIS
OWN

  ACTIONS IN THE BROADEST SENSE, INCLUDING OBSERVATIONS AND

  COMMUNICATIONS, ORAL OR WRITTEN, BY OR TO HIM OR COMING TO HIS

  ATTENTION WHILE BEING INTERVIEWED FOR, OR AFTER HAVING BEEN

  ENGAGED AS A MEMBER OF SENATOR GRAVEL'S PERSONAL STAFF TO THE

  EXTENT THAT THEY WERE IN THE COURSE OF HIS EMPLOYMENT." 

THE UNITED STATES PETITIONED FOR CERTIORARI CHALLENGING THE RULING
THAT AIDES AND OTHER PERSONS MAY NOT BE QUESTIONED WITH RESPECT TO
LEGISLATIVE ACTS AND THAT AN AIDE TO A MEMBER OF CONGRESS HAS A COMMON
LAW PRIVILEGE NOT TO TESTIFY BEFORE A GRAND JURY WITH RESPECT TO
PRIVATE PUBLICATION OF MATERIALS INTRODUCED INTO A SUBCOMMITTEE
RECORD.  SENATOR GRAVEL ALSO PETITIONED FOR CERTIORARI SEEKING REVERSAL
OF THE COURT OF APPEALS INSOFAR AS IT HELD PRIVATE PUBLICATION
UNPROTECTED BY THE SPEECH OR DEBATE CLAUSE AND ASSERTING THAT THE
PROTECTIVE ORDER OF THE COURT OF APPEALS TOO NARROWLY PROTECTED AGAINST
INQUIRIES THAT A GRAND JURY COULD DIRECT TO THIRD PARTIES.  WE GRANTED
BOTH PETITIONS.  405 U.S. 916 (1972). 

        I 

BECAUSE THE CLAIM IS THAT A MEMBER'S AIDE SHARES THE MEMBER'S
CONSTITUTIONAL PRIVILEGE, WE CONSIDER FIRST WHETHER AND TO WHAT EXTENT
SENATOR GRAVEL HIMSELF IS EXEMPT FROM PROCESS OR INQUIRY BY A GRAND
JURY INVESTIGATING THE COMMISSION OF A CRIME.  OUR FRAME OF REFERENCE
IS ART. I, SEC., 6, CL. 1, OF THE CONSTITUTION: 

     "THE SENATORS AND REPRESENTATIVES SHALL RECEIVE A COMPENSATION

  FOR THEIR SERVICES, TO BE ASCERTAINED BY LAW, AND PAID OUT OF THE

  TREASURY OF THE UNITED STATES.  THEY SHALL IN ALL CASES, EXCEPT

  TREASON, FELONY AND BREACH OF THE PEACE, BE PRIVILEGED FROM

  ARREST DURING THEIR ATTENDANCE AT THE SESSION OF THEIR RESPECTIVE

  HOUSES, AND IN GOING TO AND RETURNING FROM THE SAME; AND FOR ANY

  SPEECH OR DEBATE IN EITHER HOUSE, THEY SHALL NOT BE QUESTIONED IN

  ANY OTHER PLACE." 

THE LAST SENTENCE OF THE CLAUSE PROVIDES MEMBERS OF CONGRESS WITH TWO
DISTINCT PRIVILEGES.  EXCEPT IN CASES OF "TREASON, FELONY AND BREACH OF
THE PEACE," THE CLAUSE SHIELDS MEMBERS FROM ARREST WHILE ATTENDING OR
TRAVELING TO AND FROM A SESSION OF THEIR HOUSE.  HISTORY REVEALS, AND
PRIOR CASES SO HOLD, THAT THIS PART OF THE CLAUSE EXEMPTS MEMBERS FROM
ARREST IN CIVIL CASES ONLY.  "WHEN THE CONSTITUTION WAS ADOPTED,
ARRESTS IN CIVIL SUITS WERE STILL COMMON IN AMERICA.  IT IS ONLY TO
SUCH ARRESTS THAT THE PROVISION APPLIES."  LONG V. ANSELL, 293 U.S. 76,
83 (1934).  "SINCE . . . THE TERMS TREASON, FELONY AND BREACH OF THE
PEACE, AS USED IN THE CONSTITUTIONAL PROVISION RELIED UPON, EXCEPTS
FROM THE OPERATION OF THE PRIVILEGE ALL CRIMINAL OFFENSES, THE
CONCLUSION RESULTS THAT THE CLAIM OF PRIVILEGE OF EXEMPTION FROM ARREST
AND SENTENCE WAS WITHOUT MERIT . . . . "  WILLIAMSON V. UNITED STATES,
207 U.S. 425, 446 (1908).  /10/  NOR DOES FREEDOM FROM ARREST CONFER
IMMUNITY ON A MEMBER FROM SERVICE OF PROCESS AS A DEFENDANT IN CIVIL
MATTERS, LONG V. ANSELL, SUPRA, AT 82-83, OR AS A WITNESS IN A CRIMINAL
CASE.  "THE CONSTITUTION GIVES TO EVERY MAN, CHARGED WITH AN OFFENCE,
THE BENEFIT OF COMPULSORY PROCESS, TO SECURE THE ATTENDANCE OF HIS
WITNESSES.  I DO NOT KNOW OF ANY PRIVILEGE TO EXEMPT MEMBERS OF
CONGRESS FROM THE SERVICE, OR THE OBLIGATIONS, OF A SUBPOENA, IN SUCH
CASES."  UNITED STATES V. COOPER, 4 DALL.  341 (1800) (CHASE, J.,
SITTING ON CIRCUIT).  IT IS, THEREFORE, SUFFICIENTLY PLAIN THAT THE
CONSTITUTIONAL FREEDOM FROM ARREST DOES NOT EXEMPT MEMBERS OF CONGRESS
FROM THE OPERATION OF THE ORDINARY CRIMINAL LAWS, EVEN THOUGH
IMPRISONMENT MAY PREVENT OR INTERFERE WITH THE PERFORMANCE OF THEIR
DUTIES AS MEMBERS.  WILLIAMSON V. UNITED STATES, SUPRA; CF. BURTON V.
UNITED STATES, 202 U.S. 344 (1906).  INDEED, IMPLICIT IN THE NARROW
SCOPE OF THE PRIVILEGE OF FREEDOM FROM ARREST IS, AS JEFFERSON NOTED,
THE JUDGMENT THAT LEGISLATORS OUGHT NOT TO STAND ABOVE THE LAW THEY
CREATE BUT OUGHT GENERALLY TO BE BOUND BY IT AS ARE ORDINARY PERSONS. 
T. JEFFERSON, MANUAL OF PARLIAMENTARY PRACTICE, S. DOC. NO. 92-1, P.
437 (1971). 

IN RECOGNITION, NO DOUBT, OF THE FORCE OF THIS PART OF SEC. 6,
SENATOR GRAVEL DISAVOWS ANY ASSERTION OF GENERAL IMMUNITY FROM THE
CRIMINAL LAW.  BUT HE POINTS OUT THAT THE LAST PORTION OF SEC. 6
AFFORDS MEMBERS OF CONGRESS ANOTHER VITAL PRIVILEGE-- THEY MAY NOT BE
QUESTIONED IN ANY OTHER PLACE FOR ANY SPEECH OR DEBATE IN EITHER
HOUSE.  THE CLAIM IS NOT THAT WHILE ONE PART OF SEC. 6 GENERALLY
PERMITS PROSECUTIONS FOR TREASON, FELONY, AND BREACH OF THE PEACE,
ANOTHER PART NEVERTHELESS BROADLY FORBIDS THEM.  RATHER, HIS INSISTENCE
IS THAT THE SPEECH OR DEBATE CLAUSE AT THE VERY LEAST PROTECTS HIM FROM
CRIMINAL OR CIVIL LIABILITY AND FROM QUESTIONING ELSEWHERE THAN IN THE
SENATE, WITH RESPECT TO THE EVENTS OCCURRING AT THE SUBCOMMITTEE
HEARING AT WHICH THE PENTAGON PAPERS WERE INTRODUCED INTO THE PUBLIC
RECORD.  TO US THIS CLAIM IS INCONTROVERTIBLE.  THE SPEECH OR DEBATE
CLAUSE WAS DESIGNED TO ASSURE A CO-EQUAL BRANCH OF THE GOVERNMENT WIDE
FREEDOM OF SPEECH, DEBATE, AND DELIBERATION WITHOUT INTIMIDATION OR
THREATS FROM THE EXECUTIVE BRANCH.  IT THUS PROTECTS MEMBERS AGAINST
PROSECUTIONS THAT DIRECTLY IMPINGE UPON OR THREATEN THE LEGISLATIVE
PROCESS.  WE HAVE NO DOUBT THAT SENATOR GRAVEL MAY NOT BE MADE TO
ANSWER-- EITHER IN TERMS OF QUESTIONS OR IN TERMS OF DEFENDING HIMSELF
FROM PROSECUTION-- FOR THE EVENTS THAT OCCURRED AT THE SUBCOMMITTEE
MEETING.  OUR DECISION IS MADE EASIER BY THE FACT THAT THE UNITED
STATES APPEARS TO HAVE ABANDONED WHATEVER POSITION IT TOOK TO THE
CONTRARY IN THE LOWER COURTS. 

EVEN SO, THE UNITED STATES STRONGLY URGES THAT BECAUSE THE SPEECH OR
DEBATE CLAUSE CONFERS A PRIVILEGE ONLY UPON "SENATORS AND
REPRESENTATIVES," RODBERG HIMSELF HAS NO VALID CLAIM TO CONSTITUTIONAL
IMMUNITY FROM GRAND JURY INQUIRY.  IN OUR VIEW, BOTH COURTS BELOW
CORRECTLY REJECTED THIS POSITION.  WE AGREE WITH THE COURT OF APPEALS
THAT FOR THE PURPOSE OF CONSTRUING THE PRIVILEGE A MEMBER AND HIS AIDE
ARE TO BE "TREATED AS ONE," UNITED STATES V. DOE, 455 F.2D, AT 761; OR,
AS THE DISTRICT COURT PUT IT:  THE "SPEECH OR DEBATE CLAUSE PROHIBITS
INQUIRY INTO THINGS DONE BY DR. RODBERG AS THE SENATOR'S AGENT OR
ASSISTANT WHICH WOULD HAVE BEEN LEGISLATIVE ACTS, AND THEREFORE
PRIVILEGED, IF PERFORMED BY THE SENATOR PERSONALLY."  UNITED STATES V.
DOE, 332 F.SUPP.,AT 937-938.  BOTH COURTS RECOGNIZED WHAT THE SENATE OF
THE UNITED STATES URGENTLY PRESSES HERE:  THAT IT IS LITERALLY
IMPOSSIBLE, IN VIEW OF THE COMPLEXITIES OF THE MODERN LEGISLATIVE
PROCESS, WITH CONGRESS ALMOST CONSTANTLY IN SESSION AND MATTERS OF
LEGISLATIVE CONCERN CONSTANTLY PROLIFERATING, FOR MEMBERS OF CONGRESS
TO PERFORM THEIR LEGISLATIVE TASKS WITHOUT THE HELP OF AIDES AND
ASSISTANTS; THAT THE DAY-TO-DAY WORK OF SUCH AIDES IS SO CRITICAL TO
THE MEMBERS' PERFORMANCE THAT THEY MUST BE TREATED AS THE LATTER'S
ALTER EGOS; AND THAT IF THEY ARE NOT SO RECOGNIZED, THE CENTRAL ROLE OF
THE SPEECH OR DEBATE CLAUSE-- TO PREVENT INTIMIDATION OF LEGISLATORS BY
THE EXECUTIVE AND ACCOUNTABILITY BEFORE A POSSIBLE HOSTILE JUDICIARY,
UNITED STATES V. JOHNSON, 383 U.S. 169, 181 (1966)-- WILL INEVITABLY BE
DIMINISHED AND FRUSTRATED. 

THE COURT HAS ALREADY EMBRACED SIMILAR VIEWS IN BARR V. MATTEO, 360
U.S. 564 (1959), WHERE, IN IMMUNIZING THE ACTING DIRECTOR OF THE OFFICE
OF RENT STABILIZATION FROM LIABILITY FOR AN ALLEGED LIBEL CONTAINED IN
A PRESS RELEASE, THE COURT HELD THAT THE EXECUTIVE PRIVILEGE RECOGNIZED
IN PRIOR CASES COULD NOT BE RESTRICTED TO THOSE OF CABINET RANK.  AS
STATED BY MR. JUSTICE HARLAN, THE "PRIVILEGE IS NOT A BADGE OR
EMOLUMENT OF EXALTED OFFICE, BUT AN EXPRESSION OF A POLICY DESIGNED TO
AID IN THE EFFECTIVE FUNCTIONING OF GOVERNMENT.  THE COMPLEXITIES AND
MAGNITUDE OF GOVERNMENTAL ACTIVITY HAVE BECOME SO GREAT THAT THERE MUST
OF NECESSITY BE A DELEGATION AND REDELEGATION OF AUTHORITY AS TO MANY
FUNCTIONS, AND WE CANNOT SAY THAT THESE FUNCTIONS BECOME LESS IMPORTANT
SIMPLY BECAUSE THEY ARE EXERCISED BY OFFICERS OF LOWER RANK IN THE
EXECUTIVE HIERARCHY."  ID., AT 572-573. 

IT IS TRUE THAT THE CLAUSE ITSELF MENTIONS ONLY "SENATORS AND
REPRESENTATIVES," BUT PRIOR CASES HAVE PLAINLY NOT TAKEN A LITERALISTIC
APPROACH IN APPLYING THE PRIVILEGE.  THE CLAUSE ALSO SPEAKS ONLY OF
"SPEECH OR DEBATE," BUT THE COURT'S CONSISTENT APPROACH HAS BEEN THAT
TO CONFINE THE PROTECTION OF THE SPEECH OR DEBATE CLAUSE TO WORDS
SPOKEN IN DEBATE WOULD BE AN UNACCEPTABLY NARROW VIEW.  COMMITTEE
REPORTS, RESOLUTIONS, AND THE ACT OF VOTING ARE EQUALLY COVERED; "(IN
SHORT, . . . THINGS GENERALLY DONE IN A SESSION OF THE HOUSE BY ONE OF
ITS MEMBERS IN RELATION TO THE BUSINESS BEFORE IT."  KILBOURN V.
THOMPSON, 103 U.S. 168, 204 (1881), QUOTED WITH APPROVAL IN UNITED
STATES V. JOHNSON, 383 U.S.,AT 179.  RATHER THAN GIVING THE CLAUSE A
CRAMPED CONSTRUCTION, THE COURT HAS SOUGHT TO IMPLEMENT ITS FUNDAMENTAL
PURPOSE OF FREEING THE LEGISLATOR FROM EXECUTIVE AND JUDICIAL OVERSIGHT
THAT REALISTICALLY THREATENS TO CONTROL HIS CONDUCT AS A LEGISLATOR. 
WE HAVE LITTLE DOUBT THAT WE ARE NEITHER EXCEEDING OUT JUDICIAL POWERS
NOR MISTAKENLY CONSTRUING THE CONSTITUTION BY HOLDING THAT THE SPEECH
OR DEBATE CLAUSE APPLIES NOT ONLY TO A MEMBER BUT ALSO TO HIS AIDES
INSOFAR AS THE CONDUCT OF THE LATTER WOULD BE A PROTECTED LEGISLATIVE
ACT IF PERFORMED BY THE MEMBER HIMSELF. 

NOR CAN WE AGREE WITH THE UNITED STATES THAT OUR CONCLUSION IS
FORECLOSED BY KILBOURN V. THOMPSON, SUPRA, DOMBROWSKI V. EASTLAND, 387
U.S. 82 (1967), AND POWELL V. MCCORMACK, 395 U.S. 486 (1969), WHERE THE
SPEECH OR DEBATE PRIVILEGE WAS HELD UNAVAILABLE TO CERTAIN HOUSE AND
COMMITTEE EMPLOYEES.  THOSE CASES DO NOT HOLD THAT PERSONS OTHER THAN
MEMBERS OF CONGRESS ARE BEYOND THE PROTECTION OF THE CLAUSE WHEN THEY
PERFORM OR AID IN THE PERFORMANCE OF LEGISLATIVE ACTS.  IN KILBOURN,
THE SPEECH OR DEBATE CLAUSE PROTECTED HOUSE MEMBERS WHO HAD ADOPTED A
RESOLUTION AUTHORIZING KILBOURN'S ARREST; THAT ACT WAS CLEARLY
LEGISLATIVE IN NATURE.  BUT THE RESOLUTION WAS SUBJECT TO JUDICIAL
REVIEW INSOFAR AS ITS EXECUTION IMPINGED ON A CITIZEN'S RIGHTS AS IT
DID THERE.  THAT THE HOUSE COULD WITH IMPUNITY ORDER AN
UNCONSTITUTIONAL ARREST AFFORDED NO PROTECTION FOR THOSE WHO MADE THE
ARREST.  THE COURT QUOTED WITH APPROVAL FROM STOCKDALE V. HANSARD, 9
AD.& E. 1, 112 ENG.REP.  1112 (K.B. 1839):  "'SO IF THE SPEAKER BY
AUTHORITY OF THE HOUSE ORDER AN ILLEGAL ACT, THOUGH THAT AUTHORITY
SHALL EXEMPT HIM FROM QUESTION, HIS ORDER SHALL NO MORE JUSTIFY THE
PERSON WHO EXECUTED IT THAN KING CHARLES'S WARRANT FOR LEVYING SHIP
MONEY COULD JUSTIFY HIS REVENUE OFFICER,'" 103 U.S.,AT 202.  /11/  THE
SPEECH OR DEBATE CLAUSE COULD NOT BE CONSTRUED TO IMMUNIZE AN ILLEGAL
ARREST EVEN THOUGH DIRECTED BY AN IMMUNE LEGISLATIVE ACT.  THE COURT
WAS CAREFUL TO POINT OUT THAT THE MEMBERS THEMSELVES WERE NOT
IMPLICATED IN THE ACTUAL ARREST, ID., AT 200, AND, SIGNIFICANTLY
ENOUGH, RESERVED THE QUESTION WHETHER THERE MIGHT BE CIRCUMSTANCES IN
WHICH "THERE MAY . . . BE THINGS DONE, IN THE ONE HOUSE OR THE OTHER,
OF AN EXTRAORDINARY CHARACTER, FOR WHICH THE MEMBERS WHO TAKE PART IN
THE ACT MAY BE HELD LEGALLY RESPONSIBLE."  103 U.S.,AT 204. 

DOMBROWSKI V. EASTLAND, SUPRA, IS LITTLE DIFFERENT IN PRINCIPLE. 
THE SPEECH OR DEBATE CLAUSE THERE PROTECTED A SENATOR, WHO WAS ALSO A
SUBCOMMITTEE CHARIMAN, BUT NOT THE SUBCOMMITTEE COUNSEL.  THE RECORD
CONTAINED NO EVIDENCE OF THE SENATOR'S INVOLVEMENT IN ANY ACTIVITY THAT
COULD RESULT IN LIABILITY, 387 U.S.,AT 84, WHEREAS THE COMMITTEE
COUNSEL WAS CHARGED WITH CONSPIRING WITH STATE OFFICIALS TO CARRY OUT
AN ILLEGAL SEIZURE OF RECORDS THAT THE COMMITTEE SOUGHT FOR ITS OWN
PROCEEDINGS.  IBID.  THE COMMITTEE COUNSEL WAS DEEMED PROTECTED TO SOME
EXTENT BY LEGISLATIVE PRIVILEGE, BUT IT DID NOT SHIELD HIM FROM
ANSWERING AS YET UNPROVED CHARGES OF CONSPIRING TO VIOLATE THE
CONSTITUTIONAL RIGHTS OF PRIVATE PARTIES.  UNLAWFUL CONDUCT OF THIS
KIND THE SPEECH OR DEBATE CLAUSE SIMPLY DID NOT IMMUNIZE. 

POWELL V. MCCORMACK REASSERTED JUDICIAL POWER TO DETERMINE THE
VALIDITY OF LEGISLATIVE ACTIONS IMPINGING ON INDIVIDUAL RIGHTS-- THERE
THE ILLEGAL EXCLUSION OF A REPRESENTATIVE-ELECT-- AND TO AFFORD RELIEF
AGAINST HOUSE AIDES SEEKING TO IMPLEMENT THE INVALID RESOLUTIONS.  THE
MEMBERS THEMSELVES WERE DISMISSED FROM THE CASE BECAUSE SHIELDED BY THE
SPEECH OR DEBATE CLAUSE BOTH FROM LIABILITY FOR THEIR ILLEGAL
LEGISLATIVE ACT AND FROM HAVING TO DEFEND THEMSELVES WITH RESPECT TO
IT.  AS IN KILBOURN, THE COURT DID NOT REACH THE QUESTION "WHETHER
UNDER THE SPEECH OR DEBATE CLAUSE PETITIONERS WOULD BE ENTITLED TO
MAINTAIN THIS ACTION SOLELY AGAINST THE MEMBERS OF CONGRESS WHERE NO
AGENTS PARTICIPATED IN THE CHALLENGED ACTION AND NO OTHER REMEDY WAS
AVAILABLE."  395 U.S.,AT 506 N. 26. 

NONE OF THESE THREE CASES ADOPTED THE SIMPLE PROPOSITION THAT
IMMUNITY WAS UNAVAILABLE TO CONGRESSIONAL OR COMMITTEE EMPLOYEES
BECAUSE THEY WERE NOT REPRESENTATIVES OR SENATORS; RATHER, IMMUNITY WAS
UNAVAILABLE BECAUSE THEY ENGAGED IN ILLEGAL CONDUCT THAT WAS NOT
ENTITLED TO SPEECH OR DEBATE CLAUSE PROTECTION.  THE THREE CASES
REFLECT A DECIDEDLY JAUNDICED VIEW TOWARDS EXTENDING THE CLAUSE SO AS
TO PRIVILEGE ILLEGAL OR UNCONSTITUTIONAL CONDUCT BEYOND THAT ESSENTIAL
TO FORECLOSE EXECUTIVE CONTROL OF LEGISLATIVE SPEECH OR DEBATE AND
ASSOCIATED MATTERS SUCH AS VOTING AND COMMITTEE REPORTS AND
PROCEEDINGS.  IN KILBOURN, THE SERGEANT-AT-ARMS WAS EXECUTING A
LEGISLATIVE ORDER, THE ISSUANCE OF WHICH FELL WITHIN THE SPEECH OR
DEBATE CLAUSE; IN EASTLAND, THE COMMITTEE COUNSEL WAS GATHERING
INFORMATION FOR A HEARING; AND IN POWELL, THE CLERK AND DOORKEEPER WERE
MERELY CARRYING OUT DIRECTIONS THAT WERE PROTECTED BY THE SPEECH OR
DEBATE CLAUSE.  IN EACH CASE, PROTECTING THE RIGHTS OF OTHERS MAY HAVE
TO SOME EXTENT FRUSTRATED A PLANNED OR COMPLETED LEGISLATIVE ACT; BUT
RELIEF COULD BE AFFORDED WITHOUT PROOF OF A LEGISLATIVE ACT OR THE
MOTIVES OR PURPOSES UNDERLYING SUCH AN ACT.  NO THREAT TO LEGISLATIVE
INDEPENDENCE WAS POSED, AND SPEECH OR DEBATE CLAUSE PROTECTION DID NOT
ATTACH. 

NONE OF THIS, AS WE SEE IT, INVOLVES DISTINGUISHING BETWEEN A
SENATOR AND HIS PERSONAL AIDES WITH RESPECT TO LEGISLATIVE IMMUNITY. 
IN KILBOURN-TYPE SITUATIONS, BOTH AIDE AND MEMBER SHOUDL BE IMMUNE WITH
RESPECT TO COMMITTEE AND HOUSE ACTION LEADING TO THE ILLEGAL
RESOLUTION.  SO, TOO, IN EASTLAND, AS IN THIS LITIGATION, SENATORIAL
AIDES SHOULD ENJOY IMMUNITY FOR HELPING A MEMBER CONDUCT COMMITTEE
HEARINGS.  ON THE OTHER HAND, NO PRIOR CASE HAS HELD THAT MEMBERS OF
CONGRESS WOULD BE IMMUNE IF THEY EXECUTED AN INVALID RESOLUTION BY
THEMSELVES CARRYING OUT AN ILLEGAL ARREST, OR IF, IN ORDER TO SECURE
INFORMATION FOR A HEARING, THEMSELVES SEIZED THE PROPERTY OR INVADED
THE PRIVACY OF A CITIZEN.  NEITHER THEY NOR THEIR AIDES SHOULD BE
IMMUNE FROM LIABILITY OR QUESTIONING IN SUCH CIRCUMSTANCES.  SUCH ACTS
ARE NO MORE ESSENTIAL TO LEGISLATING THAN THE CONDUCT HELD UNPROTECTED
IN UNITED STATES V. JOHNSON, 383 U.S. 169 (1966).  /12/ 

THE UNITED STATES FEARS THE ABUSES THAT HISTORY REVEALS HAVE
OCCURRED WHEN LEGISLATORS ARE INVESTED WITH THE POWER TO RELIEVE OTHERS
FROM THE OPERATION OF OTHERWISE VALID CIVIL AND CRIMINAL LAWS.  BUT
THESE ABUSES, IT SEEMS TO US, ARE FOR THE MOST PART OBVIATED IF THE
PRIVILEGE APPLICABLE TO THE AIDE IS VIEWED, AS IT MUST BE, AS THE
PRIVILEGE OF THE SENATOR, AND INVOCABLE ONLY BY THE SENATOR OR BY THE
AIDE ON THE SENATOR'S BEHALF, /13/  AND IF IN ALL EVENTS THE PRIVILEGE
AVAILABLE TO THE AIDE IS CONTINED TO THOSE SERVICES THAT WOULD BE
IMMUNE LEGISLATIVE CONDUCT IF PERFORMED BY THE SENATOR HIMSELF.  THIS
VIEW PLACES BEYOND THE SPEECH OR DEBATE CLAUSE A VARIETY OF SERVICES
CHARACTERISTICALLY PERFORMED BY AIDES FOR MEMBERS OF CONGRESS, EVEN
THOUGH WITHIN THE SCOPE OF THEIR EMPLOYMENT.  IT LIKEWISE PROVIDES NO
PROTECTION FOR CRIMINAL CONDUCT THREATENING THE SECURITY OF THE PERSON
OR PROPERTY OF OTHERS, WHETHER PERFORMED AT THE DIRECTION OF THE
SENATOR IN PREPARATION FOR OR IN EXECUTION OF A LEGISLATIVE ACT OR DONE
WITHOUT HIS KNOWLEDGE OR DIRECTION.  NEITHER DOES IT IMMUNIZE SENATOR
OR AIDE FROM TESTIFYING AT TRIALS OR GRAND JURY PROCEEDINGS INVOLVING
THIRD-PARTY CRIMES WHERE THE QUESTIONS DO NOT REQUIRE TESTIMONY ABOUT
OR IMPUGN A LEGISLATIVE ACT.  THUS OUR REFUSAL TO DISTINGUISH BETWEEN
SENATOR AND AIDE IN APPLYING THE SPEECH OR DEBATE CLAUSE DOES NOT MEAN
THAT RODBERG IS FOR ALL PURPOSES EXEMPT FROM GRAND JURY QUESTIONING. 

        II 

WE ARE CONVINCED ALSO THAT THE COURT OF APPEALS CORRECTLY DETERMINED
THAT SENATOR GRAVEL'S ALLEGED ARRANGEMENT WITH BEACON PRESS TO PUBLISH
THE PENTAGON PAPERS WAS NOT PROTECTED SPEECH OR DEBATE WITHIN THE
MEANING OF ART. I, SEC. 6, CL. 1, OF THE CONSTITUTION. 

HISTORICALLY, THE ENGLISH LEGISLATIVE PRIVILEGE WAS NOT VIEWED AS
PROTECTING REPUBLICATION OF AN OTHERWISE IMMUNE LIBEL ON THE FLOOR OF
THE HOUSE.  STOCKDALE V. HANSARD, 9 AD.& E.,AT 114, 112 ENG.REP.,AT
1156, RECOGNIZED THAT "(FOR SPEECHES MADE IN PARLIAMENT BY A MEMBER TO
THE PREJUDICE OF ANY OTHER PERSON, OR HAZARDOUS TO THE PUBLIC PEACE,
THAT MEMBER ENJOYS COMPLETE IMPUNITY."  BUT IT WAS CLEARLY STATED THAT
"IF THE CALUMNIOUS OR INFLAMMATORY SPEECHES SHOULD BE REPORTED AND
PUBLISHED, THE LAW WILL ATTACH RESPONSIBILITY ON THE PUBLISHER."  /14/
THIS WAS ACCEPTED IN KILBOURN V. THOMPSON AS A "SOUND STATEMENT OF THE
LEGAL EFFECT OF THE BILL OF RIGHTS AND OF THE PARLIAMENTARY LAW OF
ENGLAND" AND AS A REASONABLE BASIS FOR INFERRING "THAT THE FRAMERS OF
THE CONSTITUTION MEANT THE SAME THING BY THE USE OF LANGUAGE BORROWED
FROM THAT SOURCE."  103 U.S.,AT 202. 

PRIOR CASES HAVE READ THE SPEECH OR DEBATE CLAUSE "BROADLY TO
EFFECTUATE ITS PURPOSES," UNITED STATES V. JOHNSON, 383 U.S.,AT 180,
AND HAVE INCLUDED WITHIN ITS REACH ANYTHING "GENERALLY DONE IN A
SESSION OF THE HOUSE BY ONE OF ITS MEMBERS IN RELATION TO THE BUSINESS
BEFORE IT."  KILBOURN V. THOMPSON, 103 U.S.,AT 204; UNITED STATES V.
JOHNSON, 383 U.S.,AT 179.  THUS, VOTING BY MEMBERS AND COMMITTEE
REPORTS ARE PROTECTED; AND WE RECOGNIZE TODAY-- AS THE COURT HAS
RECOGNIZED BEFORE, KILBOURN V. THOMPSON, 103 U.S.,AT 204; TENNEY V.
BRANDHOVE, 341 U.S. 367, 377-378 (1951)-- THAT A MEMBER'S CONDUCT AT
LEGISLATIVE COMMITTEE HEARINGS, ALTHOUGH SUBJECT TO JUDICIAL REVIEW IN
VARIOUS CIRCUMSTANCES, AS IS LEGISLATION ITSELF, MAY NOT BE MADE THE
BASIS FOR A CIVIL OR CRIMINAL JUDGMENT AGAINST A MEMBER BECAUSE THAT
CONDUCT IS WITHIN THE "SPHERE OF LEGITIMATE LEGISLATIVE ACTIVITY." 
ID., AT 376.  /15/ 

BUT THE CLAUSE HAS NOT BEEN EXTENDED BEYOND THE LEGISLATIVE SPHERE. 
THAT SENATORS GENERALLY PERFORM CERTAIN ACTS IN THEIR OFFICIAL CAPACITY
AS SENATORS DOES NOT NECESSARILY MAKE ALL SUCH ACTS LEGISLATIVE IN
NATURE.  MEMBERS OF CONGRESS ARE CONSTANTLY IN TOUCH WITH THE EXECUTIVE
BRANCH OF THE GOVERNMENT AND WITH ADMINISTRATIVE AGENCIES-- THEY MAY
CAJOLE, AND EXHORT WITH RESPECT TO THE ADMINISTRATION OF A FEDERAL
STATUTE-- BUT SUCH CONDUCT, THOUGH GENERALLY DONE, IS NOT PROTECTED
LEGISLATIVE ACTIVITY.  UNITED STATES V. JOHNSON DECIDED AT LEAST THIS
MUCH.  "NO ARGUMENT IS MADE, NOR DO WE THINK THAT IT COULD BE
SUCCESSFULLY CONTENDED, THAT THE SPEECH OR DEBATE CLAUSE REACHES
CONDUCT, SUCH AS WAS INVOLVED IN THE ATTEMPT TO INFLUENCE THE
DEPARTMENT OF JUSTICE, THAT IS IN NO WISE RELATED TO THE DUE
FUNCTIONING OF THE LEGISLATIVE PROCESS."  383 U.S.,AT 172.  CF. BURTON
V. UNITED STATES, 202 U.S.,AT 367-368. 

LEGISLATIVE ACTS ARE NOT ALL-ENCOMPASSING.  THE HEART OF THE CLAUSE
IS SPEECH OR DEBATE IN EITHER HOUSE.  INSOFAR AS THE CLAUSE IS
CONSTRUED TO REACH OTHER MATTERS, THEY MUST BE AN INTEGRAL PART OF THE
DELIBERATIVE AND COMMUNICATIVE PROCESSES BY WHICH MEMBERS PARTICIPATE
IN COMMITTEE AND HOUSE PROCEEDINGS WITH RESPECT TO THE CONSIDERATION
AND PASSAGE OR REJECTION OF PROPOSED LEGISLATION OR WITH RESPECT TO
OTHER MATTERS WHICH THE CONSTITUTION PLACES WITHIN THE JURISDICTION OF
EITHER HOUSE.  AS THE COURT OF APPEALS PUT IT, THE COURTS HAVE EXTENDED
THE PRIVILEGE TO MATTERS BEYOND PURE SPEECH OR DEBATE IN EITHER HOUSE,
BUT "ONLY WHEN NECESSARY TO PREVENT INDIRECT IMPAIRMENT OF SUCH
DELIBERATIONS."  UNITED STATES V. DOE, 455 F.2D, AT 760. 

HERE, PRIVATE PUBLICATION BY SENATOR GRAVEL THROUGH THE COOPERATION
OF BEACON PRESS WAS IN NO WAY ESSENTIAL TO THE DELIBERATIONS OF THE
SENATE; NOR DOES QUESTIONING AS TO PRIVATE PUBLICATION THREATEN THE
INTEGRITY OR INDEPENDENCE OF THE SENATE BY IMPERMISSIBLY EXPOSING ITS
DELIBERATIONS TO EXECUTIVE INFLUENCE.  THE SENATOR HAD CONDUCTED HIS
HEARINGS; THE RECORD AND ANY REPORT THAT WAS FORTHCOMING WERE AVAILABLE
BOTH TO HIS COMMITTEE AND THE SENATE.  INSOFAR AS WE ARE ADVISED,
NEITHER CONGRESS NOR THE FULL COMMITTEE ORDERED OR AUTHORIZED THE
PUBLICATION.  /16/  WE CANNOT BUT CONCLUDE THAT THE SENATOR'S
ARRANGEMENTS WITH BEACON PRESS WERE NOT PART AND PARCEL OF THE
LEGISLATIVE PROCESS. 

THERE ARE ADDITIONAL CONSIDERATIONS.  ARTICLE I, SEC. 6, CL. 1, AS
WE HAVE EMPHASIZED, DOES NOT PURPORT TO CONFER A GENERAL EXEMPTION UPON
MEMBERS OF CONGRESS FROM LIABILITY OR PROCESS IN CRIMINAL CASES.  QUITE
THE CONTRARY IS TRUE.  WHILE THE SPEECH OR DEBATE CLAUSE RECOGNIZES
SPEECH, VOTING, AND OTHER LEGISLATIVE ACTS AS EXEMPT FROM LIABILITY
THAT MIGHT OTHERWISE ATTACH, IT DOES NOT PRIVILEGE EITHER SENATOR OR
AIDE TO VIOLATE AN OTHERWISE VALID CRIMINAL LAW IN PREPARING FOR OR
IMPLEMENTING LEGISLATIVE ACTS.  IF REPUBLICATION OF THESE CLASSIFIED
PAPERS WOULD BE A CRIME UNDER AN ACT OF CONGRESS, IT WOULD NOT BE
ENTITLED TO IMMUNITY UNDER THE SPEECH OR DEBATE CLAUSE.  IT ALSO
APPEARS THAT THE GRAND JURY WAS PURSUING THIS VERY SUBJECT IN THE
NORMAL COURSE OF A VALID INVESTIGATION.  THE SPEECH OR DEBATE CLAUSE
DOES NOT IN OUR VIEW EXTEND IMMUNITY TO RODBERG, AS A SENATOR'S AIDE,
FROM TESTIFYING BEFORE THE GRAND JURY ABOUT THE ARRANGEMENT BETWEEN
SENATOR GRAVEL AND BEACON PRESS OR ABOUT HIS OWN PARTICIPATION, IF ANY,
IN THE ALLEGED TRANSACTION, SO LONG AS LEGISLATIVE ACTS OF THE SENATOR
ARE NOT IMPUGNED.              III 

SIMILAR CONSIDERATIONS LEAD US TO DISAGREE WITH THE COURT OF APPEALS
INSOFAR AS IT FASHIONED, TENTATIVELY AT LEAST, A NONCONSTITUTIONAL
TESTIMONIAL PRIVILEGE PROTECTING RODBERG FROM ANY QUESTIONING BY THE
GRAND JURY CONCERNING THE MATTER OF REPUBLICATION OF THE PENTAGON
PAPERS.  THIS PRIVILEGE, THOUGHT TO BE SIMILAR TO THAT PROTECTING
EXECUTIVE OFFICIALS FROM LIABILITY FOR LIBEL, SEE BARR V. MATTEO, 360
U.S. 564 (1959), WAS CONSIDERED ADVISABLE "(TO THE EXTENT THAT A
CONGRESSMAN HAS RESPONSIBILITY TO INFORM HIS CONSTITUENTS.  . . . "
455 F.2D, AT 760.  BUT WE CANNOT CARRY A JUDICIALLY FASHIONED PRIVILEGE
SO FAR AS TO IMMUNIZE CRIMINAL CONDUCT PROSCRIBED BY AN ACT OF CONGRESS
OR TO FRUSTRATE THE GRAND JURY'S INQUIRY INTO WHETHER PUBLICATION OF
THESE CLASSIFIED DOCUMENTS VIOLATED A FEDERAL CRIMINAL STATUTE.  THE SO
CALLED EXECUTIVE PRIVILEGE HAS NEVER BEEN APPLIED TO SHIELD EXECUTIVE
OFFICERS FROM PROSECUTION FOR CRIME, THE COURT OF APPEALS WAS QUITE
SURE THAT THIRD PARTIES WERE NEITHER IMMUNE FROM LIABILITY NOR FROM
TESTIFYING ABOUT THE REPUBLICATION MATTER, AND WE PERCEIVE NO BASIS FOR
CONFERRING A TESTIMONIAL PRIVILEGE ON RODBERG AS THE COURT OF APPEALS
SEEMED TO DO.

        IV 

WE MUST FINALLY CONSIDER, IN THE LIGHT OF THE FOREGOING, WHETHER THE
PROTECTIVE ORDER ENTERED BY THE COURT OF APPEALS IS AN APPROPRIATE
REGULATION OF THE PENDING GRAND JURY PROCEEDINGS. 

FOCUSING FIRST ON PARAGRAPH TWO OF THE ORDER, WE THINK THE
INJUNCTION AGAINST INTERROGATING RODBERG WITH RESPECT TO ANY ACT, "IN
THE BROADEST SENSE," PERFORMED BY HIM WITHIN THE SCOPE OF HIS
EMPLOYMENT, OVERLY RESTRICTS THE SCOPE OF GRAND JURY INQUIRY. 
RODBERG'S IMMUNITY, TESTIMONIAL OR OTHERWISE, EXTENDS ONLY TO
LEGISLATIVE ACTS AS TO WHICH THE SENATOR HIMSELF WOULD BE IMMUNE.  THE
GRAND JURY, THEREFORE, IF RELEVANT TO ITS INVESTIGATION INTO THE
POSSIBLE VIOLATIONS OF THE CRIMINAL LAW, AND ABSENT FIFTH AMENDMENT
OBJECTIONS, MAY REQUIRE FROM RODBERG ANSWERS TO QUESTIONS RELATING TO
HIS OR THE SENATOR'S ARRANGEMENTS, IF ANY, WITH RESPECT TO
REPUBLICATION OR WITH RESPECT TO THIRD-PARTY CONDUCT UNDER VALID
INVESTIGATION BY THE GRAND JURY, AS LONG AS THE QUESTIONS DO NOT
IMPLICATE LEGISLATIVE ACTION OF THE SENATOR.  NEITHER DO WE PERCEIVE
ANY CONSTITUTIONAL OR OTHER PRIVILEGE THAT SHIELDS RODBERG, ANY MORE
THAN ANY OTHER WITNESS, FROM GRAND JURY QUESTIONS RELEVANT TO TRACING
THE SOURCE OF OBVIOUSLY HIGHLY CLASSIFIED DOCUMENTS THAT CAME INTO THE
SENATOR'S POSSESSION AND ARE THE BASIC SUBJECT MATTER OF INQUIRY IN
THIS CASE, AS LONG AS NO LEGISLATIVE ACT IS IMPLICATED BY THE
QUESTIONS.  /17/ 

BECAUSE THE SPEECH OR DEBATE CLAUSE PRIVILEGE APPLIES BOTH TO
SENATOR AND AIDE, IT APPEARS TO US THAT PARAGRAPH ONE OF THE ORDER,
ALONE, WOULD AFFORD AMPLE PROTECTION FOR THE PRIVILEGE IF IT FORBADE
QUESTIONING ANY WITNESS, INCLUDING RODBERG:  (1) CONCERNING THE
SENATOR'S CONDUCT, OR THE CONDUCT OF HIS AIDES, AT THE JUNE 29, 1971,
MEETING OF THE SUBCOMMITTEE; /18/  (2) CONCERNING THE MOTIVES AND
PURPOSES BEHIND THE SENATOR'S CONDUCT, OR THAT OF HIS AIDES, AT THAT
MEETING; (3) CONCERNING COMMUNICATIONS BETWEEN THE SENATOR AND HIS
AIDES DURING THE TERM OF THEIR EMPLOYMENT AND RELATED TO SAID MEETING
OR ANY OTHER LEGISLATIVE ACT OF THE SENATOR; (4) EXCEPT AS IT PROVES
RELEVANT TO INVESTIGATING POSSIBLE THIRD-PARTY CRIME, CONCERNING ANY
ACT, IN ITSELF NOT CRIMINAL, PERFORMED BY THE SENATOR, OR BY HIS AIDES
IN THE COURSE OF THEIR EMPLOYMENT, IN PREPARATION FOR THE SUBCOMMITTEE
HEARING.  WE LEAVE THE FINAL FORM OF SUCH AN ORDER TO THE COURT OF
APPEALS IN THE FIRST INSTANCE, OR, IF THAT COURT PREFERS, TO THE
DISTRICT COURT. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASES ARE
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              SO ORDERED. 

/1/  TOGETHER WITH NO. 71-1026, UNITED STATES V. GRAVEL, ALSO ON
CERTIORARI TO THE SAME COURT. 

/1A/  THE DISTRICT COURT PERMITTED SENATOR GRAVEL TO INTERVENE IN
THE PROCEEDING ON DR. RODBERG'S MOTION TO QUASH THE SUBPOENA ORDERING
HIS APPEARANCE BEFORE THE GRAND JURY AND ACCEPTED MOTIONS FROM GRAVEL
TO QUASH THE SUBPOENA AND TO SPECIFY THE EXACT NATURE OF THE QUESTIONS
TO BE ASKED RODBERG.  THE GOVERNMENT CONTESTED GRAVEL'S STANDING TO
APPEAL THE TRIAL COURT'S DISPOSITION OF THESE MOTIONS ON THE GROUND
THAT, HAD THE SUBPOENA BEEN DIRECTED TO THE SENATOR, HE COULD NOT HAVE
APPEALED FROM A DENIAL OF A MOTION TO QUASH WITHOUT FIRST REFUSING TO
COMPLY WITH THE SUBPOENA AND BEING HELD IN CONTEMPT.  UNITED STATES V.
RYAN, 402 U.S. 530 (1971); COBBLEDICK V. UNITED STATES, 309 U.S. 323
(1940).  THE COURT OF APPEALS, UNITED STATES V. DOE, 445 F.2D 753, 756
757 (CA1 1972), HELD THAT BECAUSE THE SUBPOENA WAS DIRECTED TO THIRD
PARTIES, WHO COULD NOT BE COUNTED ON TO RISK CONTEMPT TO PROTECT
INTERVENOR'S RIGHTS, GRAVEL MIGHT BE "POWERLESS TO AVERT THE MISCHIEF
OF THE ORDER" IF NOT PERMITTED TO APPEAL, CITING PERLMAN V. UNITED
STATES, 247 U.S. 7, 13 (1918).  THE UNITED STATES DOES NOT HERE
CHALLENGE THE PROPRIETY OF THE APPEAL. 

/2/  DR. RODBERG, WHO FILED HIS OWN MOTION TO QUASH THE SUBPOENA
DIRECTING HIS APPEARANCE AND TESTIMONY, APPEARED AS AMICUS CURIAE BOTH
IN THE COURT OF APPEALS AND THIS COURT.  TECHNICALLY, RODBERG STATES,
HE IS A PARTY TO NO. 71-1026, INSOFAR AS THE GOVERNMENT APPEALS FROM
THE PROTECTIVE ORDER ENTERED BY THE DISTRICT COURT.  HOWEVER, SINCE
GRAVEL INTERVENED, RODBERG DOES NOT PRESS THE POINT.  BRIEF OF LEONARD
S. RODBERG AS AMICUS CURIAE 2 N. 2. 

/3/  THE DISTRICT COURT FOUND "THAT 'AS PERSONAL ASSISTANT TO MOVANT
(GRAVEL), DR. RODBERG ASSISTED MOVANT IN PREPARING FOR DISCLOSURE AND
SUBSEQUENTLY DISCLOSING TO MOVANT'S COLLEAGUES AND CONSTITUENTS, AT A
HEARING OF THE SENATE SUBCOMMITTEE ON PUBLIC BUILDINGS AND GROUNDS, THE
CONTENTS OF THE SO-CALLED "PENTAGON PAPERS," WHICH WERE CRITICAL OF THE
EXECUTIVE'S CONDUCT IN THE FIELD OF FOREIGN RELATIONS.'"  UNITED STATES
V. DOE, 332 F.SUPP.  930, 932 (MASS. 1971). 

/4/  BEACON PRESS IS A DIVISION OF THE UNITARIAN UNIVERSALIST
ASSOCIATION, WHICH APPEARED HERE AS AMICUS CURIAE IN SUPPORT OF THE
POSITION TAKEN BY SENATOR GRAVEL. 

/5/  GRAVEL SO ALLEGED IN HIS MOTION TO INTERVENE IN THE WEBBER
MATTER AND TO QUASH THE SUBPOENA ORDERING WEBBER TO APPEAR AND
TESTIFY.  APP. 15-18. 

/6/  THE GOVERNMENT MAINTAINED THAT CONGRESS DOES NOT ENJOY
UNLIMITED POWER TO CONDUCT BUSINESS AND THAT JUDICIAL REVIEW HAS OFTEN
BEEN EXERCISED TO CURB EXTRA-LEGISLATIVE INCURSIONS BY LEGISLATIVE
COMMITTEES, CITING WATKINS V. UNITED STATES, 354 U.S. 178 (1957);
MCGRAIN V. DAUGHERTY, 273 U.S. 135 (1927); HENTOFF V. ICHORD, 318
F.SUPP.  1175 (DC 1970), AT LEAST WHERE SUCH INCURSIONS ARE UNRELATED
TO A LEGITIMATE LEGISLATIVE PURPOSE.  IT WAS ALLEGED THAT GRAVEL HAD
"CONVENED A SPECIAL, UNAUTHORIZED, AND UNTIMELY MEETING OF THE SENATE
SUBCOMMITTEE ON PUBLIC WORKS (AT MIDNIGHT ON JUNE 29, 1971), FOR THE
PURPOSE OF READING THE DOCUMENTS AND THEREAFTER PLACED ALL UNREAD
PORTIONS IN THE SUBCOMMITTEE RECORD, WITH DR. RODBERG SOLICITING
PUBLICATION FOLLOWING THE MEETING."  APP. 9.  THE DISTRICT COURT
REJECTED THE CONTENTION:  "SENATOR GRAVEL HAS SUGGESTED THAT THE
AVAILABILITY OF FUNDS FOR THE CONSTRUCTION AND IMPROVEMENT OF PUBLIC
BUILDINGS AND GROUNDS HAS BEEN AFFECTED BY THE NECESSARY COSTS OF THE
WAR IN VIETNAM AND THAT THEREFORE THE DEVELOPMENT AND CONDUCT OF THE
WAR IS PROPERLY WITHIN THE CONCERN OF HIS SUBCOMMITTEE.  THE COURT
REJECTS THE GOVERNMENT'S ARGUMENT WITHOUT DETAILED CONSIDERATION OF THE
MERITS OF THE SENATOR'S POSITION, ON THE BASIS OF THE GENERAL RULE
RESTRICTING JUDICIAL INQUIRY INTO MATTERS OF LEGISLATIVE PURPOSE AND
OPERATIONS."  UNITED STATES V. DOE, 332 F.SUPP.,AT 935.  CASES SUCH AS
WATKINS, SUPRA, WERE DISTINGUISHED ON THE GROUND THAT THEY CONCERNED
THE POWER OF CONGRESS UNDER THE CONSTITUTION: "IT HAS NOT BEEN
SUGGESTED BY THE GOVERNMENT THAT THE SUBCOMMITTEE ITSELF IS
UNAUTHORIZED, NOR THAT THE WAR IN VIETNAM IS AN ISSUE BEYOND THE
PURVIEW OF CONGRESSIONAL DEBATE AND ACTION.  ALSO, THE INDIVIDUAL
RIGHTS AT STAKE IN THESE PROCEEDINGS ARE NOT THOSE OF A WITNESS BEFORE
A CONGRESSIONAL COMMITTEE OR OF A SUBJECT OF A COMMITTEE'S
INVESTIGATION, BUT ONLY THOSE OF A CONGRESSMAN AND MEMBER OF HIS
PERSONAL STAFF WHO CLAIM 'INTIMIDATION BY THE EXECUTIVE.'"  332
F.SUPP.,AT 936. 

/7/  THE DISTRICT COURT THOUGHT THAT RODBERG COULD BE QUESTIONED
CONCERNING HIS OWN CONDUCT PRIOR TO JOINING THE SENATOR'S STAFF AND
CONCERNING THE ACTIVITIES OF THIRD PARTIES WITH WHOM RODBERG AND GRAVEL
DEALT.  ID., AT 934. 

/8/  THE PROTECTIVE ORDER ENTERED BY THE DISTRICT COURT PROVIDED AS
FOLLOWS: 

"(1) NO WITNESS BEFORE THE GRAND JURY CURRENTLY INVESTIGATING THE
RELEASE OF THE PENTAGON PAPERS MAY BE QUESTIONED ABOUT SENATOR MIKE
GRAVEL'S CONDUCT AT A MEETING OF THE SUBCOMMITTEE ON PUBLIC BUILDINGS
AND GROUNDS ON JUNE 29, 1971 NOR ABOUT THINGS DONE BY THE SENATOR IN
PREPARATION FOR AND INTIMATELY RELATED TO SAID MEETING. 

"(2) DR. LEONARD S. RODBERG MAY NOT BE QUESTIONED ABOUT HIS OWN
ACTIONS ON JUNE 29, 1971 AFTER HAVING BEEN ENGAGED AS A MEMBER OF
SENATOR GRAVEL'S PERSONAL STAFF TO THE EXTENT THAT THEY WERE TAKEN AT
THE SENATOR'S DIRECTION EITHER AT A MEETING OF THE SUBCOMMITTEE ON
PUBLIC BUILDINGS AND GROUNDS OR IN PREPARATION FOR AND INTIMATELY
RELATED TO SAID MEETING."  ID., AT 938. 

/9/  THE COURT OF APPEALS THOUGHT THIRD PARTIES COULD BE QUESTIONED
AS TO THEIR OWN CONDUCT REGARDING THE PENTAGON PAPERS, "INCLUDING THEIR
DEALING WITH INTERVENOR OR HIS AIDES."  UNITED STATES V. DOE, 455 F.2D,
AT 761.  THE COURT FOUND NO MERIT IN THE CLAIM THAT SUCH PARTIES SHOULD
BE SHIELDED FROM QUESTIONING UNDER THE SPEECH OR DEBATE CLAUSE
CONCERNING THEIR OWN WRONGFUL ACTS, EVEN IF SUCH QUESTIONING MAY BRING
THE SENATOR'S CONDUCT INTO QUESTION.  ID., AT 758 N. 2. 

/10/  WILLIAMSON, UNITED STATES CONGRESSMAN, HAD BEEN FOUND GUILTY
OF CONSPIRING TO COMMIT SUBORNATION OF PERJURY IN CONNECTION WITH
PROCEEDINGS FOR THE PURCHASE OF PUBLIC LAND.  HE OBJECTED TO THE
COURT'S PASSING SENTENCE UPON HIM AND PARTICULARLY PROTESTED THAT ANY
IMPRISONMENT WOULD DEPRIVE HIM OF HIS CONSTITUTIONAL RIGHT TO "GO TO,
ATTEND AT AND RETURN FROM THE ENSUING SESSION OF CONGRESS."  WILLIAMSON
V. UNITED STATES, 207 U.S. 425, 433 (1908).  THE COURT REJECTED THE
CONTENTION THAT THE SPEECH OR DEBATE CLAUSE FREED LEGISLATORS FROM
ACCOUNTABILITY FOR CRIMINAL CONDUCT. 

/11/  IN KILBOURN V. THOMPSON, 103 U.S. 168, 198 (1881), THE COURT
NOTED A SECOND EXAMPLE, USED BY MR. JUSTICE COLERIDGE IN STOCKDALE V.
HANSARD, 9 AD.& E. 1, 225-226, 112 ENG.REP.  1112, 1196-1197 (K.B.
1839):  "'LET ME SUPPOSE, BY WAY OF ILLUSTRATION, AN EXTREME CASE; THE
HOUSE OF COMMONS RESOLVES THAT ANY ONE WEARING A DRESS OF A PARTICULAR
MANUFACTURE IS GUILTY OF A BREACH OF PRIVILEGE, AND ORDERS THE ARREST
OF SUCH PERSONS BY THE CONSTABLE OF THE PARISH.  AN ARREST IS MADE AND
ACTION BROUGHT, TO WHICH THE ORDER OF THE HOUSE IS PLEADED AS A
JUSTIFICATION.  . . . IN SUCH A CASE AS THE ONE SUPPOSED, THE
PLAINTIFF'S COUNSEL WOULD INSIST ON THE DISTINCTION BETWEEN POWER AND
PRIVILEGE; AND NO LAWYER CAN SERIOUSLY DOUBT THAT IT EXISTS:  BUT THE
ARGUMENT CONFOUNDS THEM, AND FORBIDS US TO ENQUIRE, IN ANY PARTICULAR
CASE, WHETHER IT RANGES UNDER THE ONE OR THE OTHER.  I CAN FIND NO
PRINCIPLE WHICH SANCTIONS THIS.'" 

/12/  SENATOR GRAVEL IS WILLING TO ASSUME THAT IF HE PERSONALLY HAD
"STOLEN" THE PENTAGON PAPERS, AND THAT ACT WERE A CRIME, HE COULD BE
PROSECUTED, AS COULD AIDES OR OTHER ASSISTANTS WHO PARTICIPATED IN THE
THEFT.  CONSOLIDATED BRIEF FOR SENATOR GRAVEL 93. 

/13/  IT FOLLOWS THAT AN AIDE'S CLAIM OF PRIVILEGE CAN BE REPUDIATED
AND THUS WAIVED BY THE SENATOR. 

/14/  STOCKDALE EXTENSIVELY REVIEWED THE PRECEDENTS AND THEIR
INTERPLAY WITH THE PRIVILEGE SO FORCEFULLY RECOGNIZED IN THE BILL OF
RIGHTS OF 1689:  "THAT THE FREEDOM OF SPEECH, AND DEBATES OR
PROCEEDINGS IN PARLIAMENT, OUGHT NOT TO BE IMPEACHED OR QUESTIONED IN
ANY COURT OR PLACE OUT OF PARLIAMENT."  1 W.& M.,SESS.  2, C. 2.  FROM
THESE CASES, INCLUDING REX V. CREEVEY, 1 M.& S. 273, 105 ENG.REP.  102
(K.B. 1813); REX V. WRIGHT, 8 T.R. 293, 101 ENG.REP.  1396 (K.B. 1799);
REX V. ABINGDON, 1 ESP.  226, 170 ENG.REP.  337 (N.P. 1794); REX V.
WILLIAMS, 2 SHOW.K.B. 471, 89 ENG.REP.  1048 (1686), IT IS APPARENT
THAT TO THE EXTENT ENGLISH PRECEDENT IS RELEVANT TO THE SPEECH OR
DEBATE CLAUSE THERE IS LITTLE, IF ANY, SUPPORT FOR SENATOR GRAVEL'S
POSITION WITH RESPECT TO REPUBLICATION.  PARLIAMENT REACTED TO
STOCKDALE V. HANSARD BY ADOPTING THE PARLIAMENTARY PAPERS ACT OF 1840,
3 & 4 VICT.,C. 9, WHICH STAYED PROCEEDINGS IN ALL CASES WHERE IT COULD
BE SHOWN THAT PUBLICATION WAS BY ORDER OF A HOUSE OF PARLIAMENT AND WAS
A BONA FIDE REPORT, PRINTED AND CIRCULATED WITHOUT MALICE.  SEE
GENERALLY C. WITTKE, THE HISTORY OF ENGLISH PARLIAMENTARY PRIVILEGE
(1921). 

GRAVEL URGES THAT STOCKDALE V. HANSARD WAS LATER REPUDIATED IN WASON
V. WALTER, L.R. 4 Q.B. 73 (1868), WHICH HELD A PROPRIETOR IMMUNE FROM
CIVIL LIBEL FOR AN ACCURATE REPUBLICATION OF A DEBATE IN THE HOUSE OF
LORDS.  BUT THE IMMUNITY ESTABLISHED IN WASON WAS NOT FOUNDED ON
PARLIAMENTARY PRIVILEGE, ID., AT 84, BUT UPON ANALOGY TO THE PRIVILEGE
FOR REPORTING JUDICIAL PROCEEDINGS.  ID., AT 87-90.  THE WASON COURT
STATED ITS "UNHESITATING AND UNQUALIFIED ADHESION" TO THE "MASTERLY
JUDGMENTS" RENDERED IN STOCKDALE AND CHARACTERIZED THE QUESTION BEFORE
IT AS WHETHER REPUBLICATION, QUITE APART FROM ANY ASSERTION OF
PARLIAMENTARY PRIVILEGE, WAS "IN ITSELF PRIVILEGED AND LAWFUL."  ID.,
AT 86-87.  THAT THE PRIVILEGES FOR NONMALICIOUS REPUBLICATION OF
PARLIAMENTARY AND JUDICIAL PROCEEDINGS-- LATER ESTABLISHED AS QUALIFIED
- WERE CONSTRUED AS COEXTENSIVE IN ALL RESPECTS, ID., AT 95, FURTHER
UNDERSCORES THE INAPPOSITENESS OF READING WASON AS BASED UPON
PARLIAMENTARY PRIVILEGE THAT, LIKE THE SPEECH OR DEBATE CLAUSE, IS
ABSOLUTE.  MUCH LATER HOLDSWORTH WAS TO COMMENT THAT AT THE TIME OF
WASON THE DISTINCTION BETWEEN ABSOLUTE AND QUALIFIED PRIVILEGE HAD NOT
BEEN WORKED OUT AND THAT THE "PART PLAYED BY MALICE IN THE TORT AND
CRIME OF DEFAMATION" PROBABLY HELPED RETARD RECOGNITION OF A QUALIFIED
PRIVILEGE.  8 W. HOLDSWORTH, HISTORY OF ENGLISH LAW 377 (1926). 
/15/  THE COURT IN TENNEY V. BRANDHOVE, 341 U.S. 367, 376-377 (1951),
WAS EQUALLY CLEAR THAT "LEGISLATIVE ACTIVITY" IS NOT ALL-ENCOMPASSING,
NOR MAY ITS LIMITS BE ESTABLISHED BY THE LEGISLATIVE BRANCH:
"LEGISLATURES MAY NOT OF COURSE ACQUIRE POWER BY AN UNWARRANTED
EXTENSION OF PRIVILEGE.  THE HOUSE OF COMMONS' CLAIM OF POWER TO
ESTABLISH THE LIMITS OF ITS PRIVILEGE HAS BEEN LITTLE MORE THAN A
PRETENSE SINCE ASHBY V. WHITE, 2 LD.RAYM.  938, 3 ID. 320.  THIS COURT
HAS NOT HESITATED TO SUSTAIN THE RIGHTS OF PRIVATE INDIVIDUALS WHEN IT
FOUND CONGRESS WAS ACTING OUTSIDE ITS LEGISLATIVE ROLE.  KILBOURN V.
THOMPSON, 103 U.S. 168; MARSHALL V. GORDON, 243 U.S. 521; COMPARE
MCGRAIN V. DAUGHERTY, 273 U.S. 135, 176." 

/16/  THE SOLE CONSTITUTIONAL CLAIM ASSERTED HERE IS BASED ON THE
SPEECH OR DEBATE CLAUSE.  WE NEED NOT ADDRESS ISSUES THAT MAY ARISE
WHEN CONGRESS OR EITHER HOUSE, AS DISTINGUISHED FROM A SINGLE MEMBER,
ORDERS THE PUBLICATION AND/OR PUBLIC DISTRIBUTION OF COMMITTEE
HEARINGS, REPORTS, OR OTHER MATERIALS.  OF COURSE, ART. I, SEC. 5, CL.
3, REQUIRES THAT EACH HOUSE "KEEP A JOURNAL OF ITS PROCEEDINGS, AND
FROM TIME TO TIME PUBLISH THE SAME, EXCEPTING SUCH PARTS AS MAY IN
THEIR JUDGMENT REQUIRE SECRECY.  . . . "  THIS CLAUSE HAS NOT BEEN THE
SUBJECT OF EXTENSIVE JUDICIAL EXAMINATION.  SEE FIELD V. CLARK, 143
U.S. 649, 670-671 (1892); UNITED STATES V. BALLIN, 144 U.S. 1, 4
(1892). 

/17/  THE COURT OF APPEALS HELD THAT THE SPEECH OR DEBATE CLAUSE
PROTECTS AIDES AS WELL AS SENATORS AND THAT WHILE THIRD PARTIES MAY BE
QUESTIONED ABOUT THE SOURCE OF A SENATOR'S INFORMATION, NEITHER AIDE
NOR SENATOR NEED ANSWER SUCH INQUIRIES.  THE GOVERNMENT'S POSITION IS
THAT THE AIDE HAS NO PROTECTION UNDER THE SPEECH OR DEBATE CLAUSE AND
MAY BE QUESTIONED EVEN ABOUT LEGISLATIVE ACTS.  A CONTRARY RULING, THE
GOVERNMENT FEARS, WOULD INVITE GREAT ABUSE.  ON THE OTHER HAND, GRAVEL
CONTENDS THAT THE COURT OF APPEALS INSUFFICIENTLY PROTECTED THE SENATOR
BOTH WITH RESPECT TO THE MATTER OF REPUBLICATION AND WITH RESPECT TO
THE SCOPE OF INQUIRY PERMITTED THE GRAND JURY IN QUESTIONING THIRD
PARTY WITNESSES WITH WHOM THE SENATOR AND HIS AIDES DEALT.  HENCE, WE
ARE OF THE VIEW THAT BOTH THE QUESTION OF THE AIDE'S IMMUNITY AND THE
QUESTION OF THE EXTENT OF THAT IMMUNITY ARE PROPERLY BEFORE US IN THIS
CASE.  AND SURELY WE ARE NOT BOUND BY THE GOVERNMENT'S VIEW OF THE
SCOPE OF THE PRIVILEGE. 

/18/  HAVING ESTABLISHED THAT NEITHER THE SENATOR NOR RODBERG IS
SUBJECT TO LIABILITY FOR WHAT OCCURRED AT THE SUBCOMMITTEE HEARING, WE
PERCEIVE NO BASIS FOR INQUIRY OF EITHER RODBERG OR THIRD PARTIES ON
THIS SUBJECT.  IF IT PROVES MATERIAL TO ESTABLISH FOR THE RECORD THE
FACT OF PUBLICATION AT THE SUBCOMMITTEE HEARING, WHICH SEEMS
UNDISPUTED, THE PUBLIC RECORD OF THE HEARING WOULD APPEAR SUFFICIENT
FOR THIS PURPOSE.  WE DO NOT INTEND TO IMPLY, HOWEVER, THAT IN NO GRAND
JURY INVESTIGATIONS OR CRIMINAL TRIALS OF THIRD PARTIES MAY THIRD-PARTY
WITNESSES BE INTERROGATED ABOUT LEGISLATIVE ACTS OF MEMBERS OF
CONGRESS.  AS FOR INQUIRY OF RODBERG ABOUT THIRD-PARTY CRIMES, WE ARE
QUITE SURE THAT THE DISTRICT COURT HAS AMPLE POWER TO KEEP THE GRAND
JURY PROCEEDINGS WITHIN PROPER BOUNDS AND TO FORECLOSE IMPROVIDENT
HARASSMENT AND FISHING EXPEDITIONS INTO THE AFFAIRS OF A MEMBER OF
CONGRESS THAT ARE NO PROPER CONCERN OF THE GRAND JURY OR THE EXECUTIVE
BRANCH. 

MR. JUSTICE STEWART, DISSENTING IN PART. 

THE COURT TODAY HOLDS THAT THE SPEECH OR DEBATE CLAUSE DOES NOT
PROTECT A CONGRESSMAN FROM BEING FORCED TO TESTIFY BEFORE A GRAND JURY
ABOUT SOURCES OF INFORMATION USED IN PREPARATION FOR LEGISLATIVE ACTS. 
THIS CRITICAL QUESTION WAS NOT EMBRACED IN THE PETITIONS FOR
CERTIORARI.  IT WAS NOT DEALT WITH IN THE WRITTEN BRIEFS.  IT WAS
ADDRESSED ONLY TANGENTIALLY DURING THE ORAL ARGUMENTS.  YET IT IS A
QUESTION WITH PROFOUND IMPLICATIONS FOR THE EFFECTIVE FUNCTIONING OF
THE LEGISLATIVE PROCESS.  I CANNOT JOIN IN THE COURT'S SUMMARY
RESOLUTION OF SO VITALLY IMPORTANT A CONSTITUTIONAL ISSUE. 

IN PREPARING FOR LEGISLATIVE HEARINGS, DEBATES, AND ROLL CALLS, A
MEMBER OF CONGRESS OBVIOUSLY NEEDS THE BROADEST POSSIBLE RANGE OF
INFORMATION.  VALUABLE INFORMATION MAY OFTEN COME FROM SOURCES IN THE
EXECUTIVE BRANCH OR FROM CITIZENS IN PRIVATE LIFE.  AND INFORMANTS SUCH
AS THESE MAY BE WILLING TO RELATE INFORMATION TO A CONGRESSMAN ONLY IN
CONFIDENCE, FEARING THAT DISCLOSURE OF THEIR IDENTITIES MIGHT CAUSE
LOSS OF THEIR JOBS OR HARASSMENT BY THEIR COLLEAGUES OR EMPLOYERS.  IN
FACT, I SHOULD SUPPOSE IT TO BE SELF-EVIDENT THAT MANY SUCH INFORMANTS
WOULD INSIST UPON AN ASSURANCE OF CONFIDENTIALITY BEFORE REVEALING
THEIR INFORMATION.  THUS, THE ACQUISITION OF KNOWLEDGE THROUGH A
PROMISE OF NONDISCLOSURE OF ITS SOURCE WILL OFTEN BE A NECESSARY
CONCOMITANT OF EFFECTIVE LEGISLATIVE CONDUCT, IF THE MEMBERS OF
CONGRESS ARE PROPERLY TO PERFORM THEIR CONSTITUTIONAL DUTY. 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT RECOGNIZED THE IMPORTANCE
OF THE INFORMATION-GATHERING PROCESS IN THE PERFORMANCE OF THE
LEGISLATIVE FUNCTION.  IT HELD THAT THE SPEECH OR DEBATE CLAUSE BARS
ALL GRAND JURY QUESTIONING OF A MEMBER OF CONGRESS REGARDING THE
SOURCES OF HIS INFORMATION.  THE COURT OF APPEALS REASONED THAT TO
ALLOW A "GRAND JURY TO QUESTION A SENATOR ABOUT HIS SOURCES WOULD CHILL
BOTH THE VIGOR WITH WHICH LEGISLATORS SEEK FACTS, AND THE WILLINGNESS
OF POTENTIAL SOURCES TO SUPPLY THEM."  UNITED STATES V. DOE, 455 F.2D
753, 758-759.  THE GOVERNMENT DID NOT SEEK REVIEW OF THIS RULING, BUT
RATHER SOUGHT CERTIORARI ON THE QUESTION WHETHER THE SPEECH OR DEBATE
CLAUSE BARS A GRAND JURY FROM QUESTIONING CONGRESSIONAL AIDES ABOUT
PRIVILEGED ACTIONS OF SENATORS OR REPRESENTATIVES.  /1/ 

THE COURT, HOWEVER, TODAY DECIDES, SUA SPONTE, THAT A MEMBER OF
CONGRESS MAY, DESPITE THE SPEECH OR DEBATE CLAUSE, BE COMPELLED TO
TESTIFY BEFORE A GRAND JURY CONCERNING THE SOURCES OF INFORMATION USED
BY HIM IN THE PERFORMANCE OF HIS LEGISLATIVE DUTIES, IF SUCH AN INQUIRY
"PROVES RELEVANT TO INVESTIGATING POSSIBLE THIRD-PARTY CRIME."  ANTE,
AT 629.  /2/  IN MY VIEW, THIS RULING IS HIGHLY DUBIOUS IN VIEW OF THE
BASIC PURPOSE OF THE SPEECH OR DEBATE CLAUSE-- "TO PREVENT INTIMIDATION
(OF CONGRESSMEN) BY THE EXECUTIVE AND ACCOUNTABILITY BEFORE A POSSIBLY
HOSTILE JUDICIARY."  UNITED STATES V. JOHNSON, 383 U.S. 169, 181. 

UNDER THE COURT'S RULING, A CONGRESSMAN MAY BE SUBPOENAED BY A
VINDICTIVE EXECUTIVE TO TESTIFY ABOUT INFORMANTS WHO HAVE NOT COMMITTED
CRIMES AND WHO HAVE NO KNOWLEDGE OF CRIME.  SUCH COMPULSION CAN OCCUR,
BECAUSE THE JUDICIARY HAS TRADITIONALLY IMPOSED VIRTUALLY NO
LIMITATIONS ON THE GRAND JURY'S BROAD INVESTIGATORY POWERS; GRAND JURY
INVESTIGATIONS ARE NOT LIMITED IN SCOPE TO SPECIFIC CRIMINAL ACTS, AND
STANDARDS OF MATERIALITY AND RELEVANCE ARE GREATLY RELAXED.  /3/  BUT
EVEN IF THE EXECUTIVE HAD REASON TO BELIEVE THAT A MEMBER OF CONGRESS
HAD KNOWLEDGE OF A SPECIFIC PROBABLE VIOLATION OF LAW, IT IS BY NO
MEANS CLEAR TO ME THAT THE EXECUTIVE'S INTEREST IN THE ADMINISTRATION
OF JUSTICE MUST ALWAYS OVERRIDE THE PUBLIC INTEREST IN HAVING AN
INFORMED CONGRESS.  WHY SHOULD WE NOT, GIVEN THE TENSION BETWEEN TWO
COMPETING INTERESTS, EACH OF CONSTITUTIONAL DIMENSIONS, BALANCE THE
CLAIMS OF THE SPEECH OR DEBATE CLAUSE AGAINST THE CLAIMS OF THE GRAND
JURY IN THE PARTICULARIZED CONTEXTS OF SPECIFIC CASES?  AND WHY ARE NOT
THE HOUSES OF CONGRESS THE PROPER INSTITUTIONS IN MOST SITUATIONS TO
IMPOSE SANCTIONS UPON A REPRESENTATIVE OR SENATOR WHO WITHHOLDS
INFORMATION ABOUT CRIME ACQUIRED IN THE COURSE OF HIS LEGISLATIVE
DUTIES?  /4/ 

I AM NOT PREPARED TO ACCEPT THE COURT'S RIGID CONCLUSION THAT THE
EXECUTIVE MAY ALWAYS COMPEL A LEGISLATOR TO TESTIFY BEFORE A GRAND JURY
ABOUT SOURCES OF INFORMATION USED IN PREPARING FOR LEGISLATIVE ACTS. 
FOR THAT REASON, I DISSENT FROM THAT PART OF THE COURT'S OPINION THAT
SO INFLEXIBLY AND SUMMARILY DECIDES THIS VITAL QUESTION. 

/1/  AS STATED IN ITS PETITION FOR CERTIORARI, THE GOVERNMENT ASKED US
TO CONSIDER: 

"WHETHER ARTICLE 1, SECTION 6, OF THE CONSTITUTION PROVIDING THAT '
. . . FOR ANY SPEECH OR DEBATE IN EITHER HOUSE,' THE SENATORS AND
REPRESENTATIVES 'SHALL NOT BE QUESTIONED IN ANY OTHER PLACE' BARS A
GRAND JURY FROM QUESTIONING AIDES OF MEMBERS OF CONGRESS AND OTHER
PERSONS ABOUT MATTERS THAT MAY TOUCH ON ACTIVITIES OF A MEMBER OF
CONGRESS WHICH ARE PROTECTED 'SPEECH OR DEBATE.'" 

THE GOVERNMENT ALSO ASKED US TO CONSIDER: 

"WHETHER AN AIDE OF A MEMBER OF CONGRESS HAS A COMMON LAW PRIVILEGE
NOT TO TESTIFY BEFORE A GRAND JURY CONCERNING PRIVATE REPUBLICATION OF
MATERIAL WHICH HIS SENATOR-EMPLOYER HAD INTRODUCED INTO THE RECORD OF A
SENATE SUBCOMMITTEE."  WE GRANTED CERTIORARI ON BOTH QUESTIONS.  405
U.S. 916. 

/2/  SEE ALSO ANTE, AT 622, 628. 

/3/  SEE, E.G., WILSON V. UNITED STATES, 221 U.S. 361; HENDRICKS V.
UNITED STATES, 223 U.S. 178; UNITED STATES V. JOHNSON, 319 U.S. 503. 
SEE GENERALLY HOLT V. UNITED STATES, 218 U.S. 245; COSTELLO V. UNITED
STATES, 350 U.S. 359. 

/4/  DURING ORAL ARGUMENT, THE SOLICITOR GENERAL VIRTUALLY CONCEDED,
IN THE COURSE OF ARGUING THAT AIDES SHOULD NOT ENJOY THE SAME
TESTIMONIAL PRIVILEGE AS CONGRESSMEN, THAT A SENATOR COULD NOT BE
CALLED BEFORE THE GRAND JURY TO TESTIFY ABOUT THE SOURCES OF HIS
INFORMATION: 

"Q.  MR. SOLICITOR, AM I CORRECT THAT YOU WOULDN'T BE ABLE TO
QUESTION THE SENATOR AS TO WHERE HE GOT THE PAPERS FROM? 

"A.  OH, MR. JUSTICE, WE ARE NOT ABLE TO QUESTION THE SENATOR ABOUT
ANYTHING INSOFAR AS IT RELATES TO SPEECH OR DEBATE. 

"Q.  WELL, THIS WAS RELATED, YOU AGREE, TO SPEECH AND DEBATE? 

"A.  I AM NOT CONTENDING TO THE CONTRARY.  . . . "  TR. OF ORAL
ARG., APR. 20, 1972, PP. 27-28. 

THE FOLLOWING EXCHANGE ALSO TOOK PLACE: 

"Q.  YOU CAN'T ASK A SENATOR WHERE YOU GOT THE MATERIAL YOU USED IN
YOUR SPEECH. 

"A.  YES, MR. JUSTICE. 

"Q.  YOU CAN'T. 

"A.  YES."  ID., AT 29. 

AT ANOTHER POINT IN THE ORAL ARGUMENT, THE SOLICITOR GENERAL SAID
THAT EVEN WHEN A SENATOR OR REPRESENTATIVE HAS KNOWLEDGE OF CRIME AS A
RESULT OF LEGISLATIVE ACTS "(THEY CAN'T EVEN BE REQUIRED TO RESPOND TO
QUESTIONS WITH RESPECT TO THEIR SPEECHES AND DEBATES.  THAT IS A GREAT
AND HISTORIC PRIVILEGE WHICH OUGHT TO BE MAINTAINED WHICH I FULLY
SUPPORT BUT WHICH DOES NOT EXTEND TO ANY OTHER PERSONS THAN SENATORS
AND REPRESENTATIVES."  ID., AT 32. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD CONSTRUE THE SPEECH OR DEBATE CLAUSE /1/  TO INSULATE
SENATOR GRAVEL AND HIS AIDES FROM INQUIRY CONCERNING THE PENTAGON
PAPERS, AND BEACON PRESS FROM INQUIRY CONCERNING PUBLICATION OF THEM,
FOR THAT PUBLICATION WAS BUT ANOTHER WAY OF INFORMING THE PUBLIC AS TO
WHAT HAD GONE ON IN THE PRIVACY OF THE EXECUTIVE BRANCH CONCERNING THE
CONCEPTION AND PURSUIT OF THE SO-CALLED "WAR" IN VIETNAM. 
ALTERNATIVELY, I WOULD HOLD THAT BEACON PRESS IS PROTECTED BY THE FIRST
AMENDMENT FROM PROSECUTION OR INVESTIGATIONS FOR PUBLISHING OR
UNDERTAKING TO PUBLISH THE PENTAGON PAPERS. 

GRAVEL, SENATOR FROM ALASKA, WAS CHAIRMAN OF THE SENATE SUBCOMMITTEE
ON PUBLIC BUILDINGS AND GROUNDS.  HE CONVENED A MEETING OF THE
SUBSOMMITTEE AND READ TO IT A SUMMARY OF THE SO-CALLED PENTAGON
PAPERS.  HE THEN INTRODUCED "THE ENTIRE PAPERS, ALLEGEDLY SOME 47
VOLUMES AND SAID TO CONTAIN SEVEN MILLION WORDS, AS AN EXHIBIT."  455
F.2D 753, 756.  THEREAFTER, HE SUPPLIED A COPY OF THE PAPERS TO THE
BEACON PRESS, A BOSTON PUBLISHING HOUSE, ON THE UNDERSTANDING THAT IT
WOULD PUBLISH THE PAPERS WITHOUT PROFIT TO THE SENATOR.  A GRAND JURY
WAS INVESTIGATING THE RELEASE OF THE PENTAGON PAPERS AND SUBPOENAED ONE
RODBERG, AN AIDE TO SENATOR GRAVEL, TO TESTIFY.  RODBERG MOVED TO QUASH
THE SUBPOENA; AND ON THE SAME DAY THE SENATOR MOVED TO INTERVENE. 
INTERVENTION WAS GRANTED AND IN DUE COURSE THE COURT OF APPEALS ENTERED
THE FOLLOWING ORDER WHICH IS NOW BEFORE US FOR REVIEW: 

     "(1) NO WITNESS BEFORE THE GRAND JURY CURRENTLY INVESTIGATING

THE RELEASE OF THE PENTAGON PAPERS MAY BE QUESTIONED ABOUT

  SENATOR MIKE GRAVEL'S CONDUCT AT A MEETING OF THE SUBCOMMITTEE ON

  PUBLIC BUILDINGS AND GROUNDS ON JUNE 29, 1971, NOR, IF THE

  QUESTIONS ARE DIRECTED TO THE MOTIVES OR PURPOSES BEHIND THE

  SENATOR'S CONDUCT AT THAT MEETING, ABOUT ANY COMMUNICATIONS WITH

  HIM OR WITH HIS AIDES REGARDING THE ACTIVITIES OF THE SENATOR OR

  HIS AIDES DURING THE PERIOD OF THEIR EMPLOYMENT, IN PREPARATION

  FOR AND RELATED TO SAID MEETING. 

      "(2) DR. LEONARD S. RODBERG MAY NOT BE QUESTIONED ABOUT HIS
OWN

  ACTIONS IN THE BROADEST SENSE, INCLUDING OBSERVATIONS AND

  COMMUNICATIONS, ORAL OR WRITTEN, BY OR TO HIM OR COMING TO HIS

  ATTENTION WHILE BEING INTERVIEWED FOR, OR AFTER HAVING BEEN

  ENGAGED AS A MEMBER OF SENATOR GRAVEL'S PERSONAL STAFF TO THE

  EXTENT THAT THEY WERE IN THE COURSE OF HIS EMPLOYMENT." 

        I 

BOTH THE INTRODUCTION OF THE PENTAGON PAPERS BY SENATOR GRAVEL INTO
THE RECORD BEFORE HIS SUBCOMMITTEE AND HIS EFFORTS TO PUBLISH THEM WERE
CLEARLY COVERED BY THE SPEECH OR DEBATE CLAUSE, AS CONSTRUED IN
KILBOURN V. THOMPSON, 103 U.S. 168, 204: 

"IT WOULD BE A NARROW VIEW OF THE CONSTITUTIONAL PROVISION TO LIMIT
IT TO WORDS SPOKEN IN DEBATE.  THE REASON OF THE RULE IS AS FORCIBLE IN
ITS APPLICATION TO WRITTEN REPORTS PRESENTED IN THAT BODY BY ITS
COMMITTEES, TO RESOLUTIONS OFFERED, WHICH, THOUGH IN WRITING, MUST BE
REPRODUCED IN SPEECH, AND TO THE ACT OF VOTING, WHETHER IT IS DONE
VOCALLY OR BY PASSING BETWEEN THE TELLERS.  IN SHORT, TO THINGS
GENERALLY DONE IN A SESSION OF THE HOUSE BY ONE OF ITS MEMBERS IN
RELATION TO THE BUSINESS BEFORE IT."  /2/ 

ONE OF THE THINGS NORMALLY DONE BY A MEMBER "IN RELATION TO THE
BUSINESS BEFORE IT" IS THE INTRODUCTION OF DOCUMENTS OR OTHER EXHIBITS
IN THE RECORD THE COMMITTEE OR SUBCOMMITTEE IS MAKING.  THE
INTRODUCTION OF A DOCUMENT INTO A RECORD OF THE COMMITTEE OR
SUBCOMMITTEE BY ITS CHAIRMAN CERTAINLY PUTS IT IN THE PUBLIC DOMAIN. 
WHETHER A PARTICULAR DOCUMENT IS RELEVANT TO THE INQUIRY OF THE
COMMITTEE MAY BE QUESTIONED BY THE SENATE IN THE EXERCISE OF ITS POWER
TO PRESCRIBE RULES FOR THE GOVERNANCE AND DISCIPLINE OF WAYWARD
MEMBERS.  BUT THERE IS ONLY ONE INSTANCE, AS I SEE IT, WHERE
SUPERVISORY POWER OVER THAT ISSUE IS VESTED IN THE COURTS, AND THAT IS
WHERE A WITNESS BEFORE A COMMITTEE IS PROSECUTED FOR CONTEMPT AND HE
MAKES THE DEFENSE THAT THE QUESTION HE REFUSED TO ANSWER WAS NOT
GERMANE TO THE LEGISLATIVE INQUIRY OR WITHIN ITS PERMISSIBLE RANGE. 
SEE UPHAUS V. WYMAN, 360 U.S. 72; KILBOURN V. THOMPSON, SUPRA, AT 190. 

IN ALL OTHER SITUATIONS, HOWEVER, THE JUDICIARY'S VIEW OF THE
MOTIVES OR GERMANENESS OF A SENATOR'S CONDUCT BEFORE A COMMITTEE IS
IRRELEVANT.  FOR, "(THE CLAIM OF AN UNWORTHY PURPOSE DOES NOT DESTROY
THE PRIVILEGE."  TENNEY V. BRANDHOVE, 341 U.S. 367, 377.  IF THERE IS
AN ABUSE, THERE IS A REMEDY; BUT IT IS LEGISLATIVE, NOT JUDICIAL. 

AS TO SENATOR GRAVEL'S EFFORTS TO PUBLISH THE SUBCOMMITTEE RECORD'S
CONTENTS, WIDE DISSEMINATION OF THIS MATERIAL AS AN EDUCATIONAL SERVICE
IS AS MUCH A PART OF THE SPEECH OR DEBATE CLAUSE PHILOSOPHY AS MAILING
UNDER A FRANK A SENATOR'S OR A CONGRESSMAN'S SPEECH ACROSS THE NATION. 
AS MENTIONED EARLIER, "(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.  . . . THE INFORMING FUNCTION OF CONGRESS SHOULD BE
PREFERRED EVEN TO ITS LEGISLATIVE FUNCTION."  W. WILSON, CONGRESSIONAL
GOVERNMENT 303 (1885), QUOTED WITH APPROVAL IN TENNEY V. BRANDHOVE,
SUPRA, AT 377 N. 6.  "FROM THE EARLIEST TIMES IN ITS HISTORY, THE
CONGRESS HAS ASSIDUOUSLY PERFORMED AN 'INFORMING FUNCTION,'" WATKINS V.
UNITED STATES, 354 U.S. 178, 200 N. 33.  "LEGISLATORS HAVE AN
OBLIGATION TO TAKE POSITIONS ON CONTROVERSIAL POLITICAL QUESTIONS SO
THAT THEIR CONSTITUENTS CAN BE FULLY INFORMED BY THEM."  BOND V. FLOYD,
385 U.S. 116, 136. 

WE SAID IN UNITED STATES V. JOHNSON, 383 U.S. 169, 179, THAT THE
SPEECH OR DEBATE CLAUSE ESTABLISHED A "LEGISLATIVE PRIVILEGE" THAT
PROTECTED A MEMBER OF CONGRESS AGAINST PROSECUTION "BY AN UNFRIENDLY
EXECUTIVE AND CONVICTION BY A HOSTILE JUDICIARY" IN ORDER, AS MR.
JUSTICE HARLAN PUT IT, TO ENSURE "THE INDEPENDENCE OF THE
LEGISLATURE."  THAT HOSTILITY EMANATES FROM EVERY STAGE OF THE PRESENT
PROCEEDINGS.  IT EMPHASIZES THE NEED TO CONSTRUE THE SPEECH OR DEBATE
CLAUSE GENEROUSLY, NOT NIGGARDLY.  IF REPUBLICATION OF A SENATOR'S
SPEECH IN A NEWSPAPER CARRIES THE PRIVILEGE, AS IT DOUBTLESS DOES, THEN
REPUBLICATION OF THE EXHIBITS INTRODUCED AT A HEARING BEFORE CONGRESS
MUST ALSO DO SO.  THAT MEANS THAT REPUBLICATION BY BEACON PRESS IS
WITHIN THE AMBIT OF THE SPEECH OR DEBATE CLAUSE AND THAT THE
CONFIDENCES OF THE SENATOR IN ARRANGING IT ARE NOT SUBJECT TO INQUIRY
"IN ANY OTHER PLACE" THAN THE CONGRESS. 

IT IS SAID THAT THOUGH THE SENATOR IS IMMUNE FROM QUESTIONING AS TO
WHAT HE SAID AND DID IN PREPARATION FOR THE COMMITTEE HEARING AND IN
CONDUCTING IT, HIS AIDES MAY BE QUESTIONED IN HIS STEAD.  SUCH EASY
CIRCUMVENTION OF THE SPEECH OR DEBATE CLAUSE WOULD INDEED MAKE IT A
MOCKERY.  THE AIDES AND AGENTS SUCH AS BEACON PRESS MUST BE TAKEN AS
SURROGATES FOR THE SENATOR AND THE CONFIDENCES OF THE JOB THAT THEY
ENJOY ARE HIS CONFIDENCES THAT THE SPEECH OR DEBATE CLAUSE EMBRACES. 

        II 

THE SECRECY OF DOCUMENTS IN THE EXECUTIVE DEPARTMENT HAS BEEN A BONE
OF CONTENTION BETWEEN IT AND CONGRESS FROM THE BEGINNING.  /3/  MOST
DISCUSSIONS HAVE CENTERED ON THE SCOPE OF THE EXECUTIVE PRIVILEGE IN
STAMPING DOCUMENTS AS "SECRET," "TOP SECRET," "CONFIDENTIAL," AND SO
ON, THUS WITHHOLDING THEM FROM THE EYES OF CONGRESS AND THE PRESS.  THE
PRACTICE HAS REACHED LARGE PROPORTIONS, IT BEING ESTIMATED THAT 

(1) OVER 30,000 PEOPLE IN THE EXECUTIVE BRANCH HAVE THE POWER TO
WIELD THE CLASSIFICATION STAMP.  /4/ 

(2) THE DEPARTMENT OF STATE, THE DEPARTMENT OF DEFENSE, AND THE
ATOMIC ENERGY COMMISSION HAVE OVER 20 MILLION CLASSIFIED DOCUMENTS IN
THEIR FILES. 

(3) CONGRESS APPROPRIATES APPROXIMATELY $15 BILLION ANNUALLY WITHOUT
MOST OF ITS MEMBERS OF THE PUBLIC OR THE PRESS KNOWING FOR WHAT
PURPOSES THE MONEY IS TO BE USED.  /5/ 

THE PROBLEM LOOMS LARGE AS ONE OF SEPARATION OF POWERS.  WOODROW
WILSON WROTE ABOUT IT IN TERMS OF THE "INFORMING FUNCTION" OF CONGRESS:
/6/ 

     "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.  THE ARGUMENT IS NOT ONLY THAT DISCUSSED

  AND INTERROGATED ADMINISTRATION IS THE ONLY PURE AND EFFICIENT

ADMINISTRATION, BUT, MORE THAN THAT, THAT THE ONLY REALLY

 SELF-GOVERNING PEOPLE IS THAT PEOPLE WHICH DISCUSSES AND

  INTERROGATES ITS ADMINISTRATION.  THE TALK ON THE PART OF

  CONGRESS WHICH WE SOMETIMES JUSTLY CONDEMN IS THE PROFITLESS

  SQUABBLE WORDS OVER FRIVOLOUS BILLS OR SELFISH PARTY ISSUES.  IT

  WOULD BE HARD TO CONCEIVE OF THERE BEING TOO MUCH TALK ABOUT THE

  PRACTICAL CONCERNS AND PROCESSES OF GOVERNMENT.  SUCH TALK IT IS

  WHICH, WHEN EARNESTLY AND PURPOSEFULLY CONDUCTED, CLEARS THE

  PUBLIC MIND AND SHAPES THE DEMANDS OF PUBLIC OPINION." 

CLASSIFICATION OF DOCUMENTS IS A CONCERN OF THE CONGRESS.  IT IS,
HOWEVER, NO CONCERN OF THE COURTS, AS I SEE IT, HOW A DOCUMENT IS
STAMPED IN AN EXECUTIVE DEPARTMENT OR WHETHER A COMMITTEE OF CONGRESS
CAN OBTAIN THE USE OF IT.  THE FEDERAL COURTS DO NOT SIT AS AN
OMBUDSMAN REFEREEING THE DISPUTES BETWEEN THE OTHER TWO BRANCHES.  THE
FEDERAL COURTS DO BECOME VITALLY INVOLVED WHENEVER THEIR POWER IS
SOUGHT TO BE INVOKED EITHER TO PROTECT THE PRESS AGAINST CENSORSHIP AS
IN NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713, OR TO PROTECT THE
PRESS AGAINST PUNISHMENT FOR PUBLISHING "SECRET" DOCUMENTS OR TO
PROTECT AN INDIVIDUAL AGAINST HIS DISCLOSURE OF THEIR CONTENTS FOR ANY
OF THE PURPOSES OF THE FIRST AMENDMENT. 

FORCING THE PRESS TO BECOME THE GOVERNMENT'S CO-CONSPIRATOR IN
MAINTAINING STATE SECRETS IS AT WAR WITH THE OBJECTIVES OF THE FIRST
AMENDMENT.  THAT GUARANTEE WAS DESIGNED IN PART TO ENSURE A MEANINGFUL
VERSION OF SELF-GOVERNMENT BY IMMERSING THE PEOPLE IN A "STEADY,
ROBUST, UNIMPEDED, AND UNCENSORED FLOW OF OPINION AND REPORTING WHICH
ARE CONTINUOUSLY SUBJECTED TO CRITIQUE, REBUTTAL, AND RE-EXAMINATION." 
BRANZBURG V. HAYES, POST, AT 715 (DOUGLAS, J., DISSENTING); BRANDENBURG
V. OHIO, 395 U.S. 444; STANLEY V. GEORGIA, 394 U.S. 557, 564; LAMONT V.
POSTMASTER GENERAL, 381 U.S. 301, 308 (BRENNAN, J., CONCURRING); NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 270.  AS I HAVE SAID, IN
DISSENT, ELSEWHERE, E.G., BRANZBURG, SUPRA; KLEINDIENST V. MANDEL,
POST, AT 771, THAT AMENDMENT IS AIMED AT PROTECTING NOT ONLY SPEAKERS
AND WRITERS BUT ALSO LISTENERS AND READERS.  THE ESSENCE OF OUR FORM OF
GOVERNING WAS AT THE HEART OF MR. JUSTICE BLACK'S REMINDER IN THE
PENTAGON PAPERS CASE THAT "(THE PRESS WAS PROTECTED SO THAT IT COULD
BARE THE SECRETS OF GOVERNMENT AND INFORM THE PEOPLE."  403 U.S.,AT 717
(CONCURRING OPINION).  SIMILARLY, SENATOR SAM ERVIN HAS OBSERVED:
"WHEN THE PEOPLE DO NOT KNOW WHAT THEIR GOVERNMENT IS DOING, THOSE WHO
GOVERN ARE NOT ACCOUNTABLE FOR THEIR ACTIONS-- AND ACCOUNTABILITY IS
BASIC TO THE DEMOCRATIC SYSTEM.  BY USING DEVICES OF SECRECY, THE
GOVERNMENT ATTAINS THE POWER TO 'MANAGE THE NEWS AND THROUGH IT TO
MANIPULATE PUBLIC OPINION9"  /7/  RAMSEY CLARK AS ATTORNEY GENERAL
EXPRESSED A SIMILAR SENTIMENT:  "IF GOVERNMENT IS TO BE TRULY OF, BY,
AND FOR THE PEOPLE, THE PEOPLE MUST KNOW IN DETAIL THE ACTIVITIES OF
GOVERNMENT.  NOTHING SO DIMINISHES DEMOCRACY AS SECRECY."  /8/  AND SEE
MEIKLEJOHN, THE FIRST AMENDMENT IS AN ABSOLUTE, 1961 SUP.CT.REV.  245;
PRESS FREEDOMS UNDER PRESSURE:  REPORT OF THE TWENTIETH CENTURY FUND
TASK FORCE ON THE GOVERNMENT AND THE PRESS 109-117 (1972) (BACKGROUND
PAPER BY FRED GRAHAM ON ACCESS TO NEWS); M. JOHNSON, THE GOVERNMENT
SECRECY CONTROVERSY 39-41 (1967). 

JEFFERSON IN A LETTER TO MADISON, DATED DECEMBER 20, 1787, POSED THE
QUESTION "WHETHER PEACE IS BEST PRESERVED BY GIVING ENERGY TO THE
GOVERNMENT, OR INFORMATION TO THE PEOPLE," AND THEN ANSWERED, "THIS
LAST IS THE MOST CERTAIN, AND THE MOST LEGITIMATE ENGINE OF
GOVERNMENT."  6 WRITINGS OF THOMAS JEFFERSON 392 (MEMORIAL ED. 1903). 

MADISON AT THE TIME OF THE WHISKEY REBELLION SPOKE IN THE HOUSE
AGAINST A RESOLUTION OF CENSURE AGAINST THE GROUPS STIRRING UP THE
TURMOIL AGAINST THAT REBELLION. 

"'IF WE ADVERT TO THE NATURE OF REPUBLICAN GOVERNMENT, WE SHALL FIND
THAT THE CENSORIAL POWER IS IN THE PEOPLE OVER THE GOVERNMENT, AND NOT
IN THE GOVERNMENT OVER THE PEOPLE.'"  BRANT, THE MADISON HERITAGE, 35
N.Y.U.L.REV.  882, 900. 

YET, AS HAS BEEN REVEALED BY SUCH EXPOSES AS THE PENTAGON PAPERS,
THE MY LAI MASSACRES, THE GULF OF TONKIN "INCIDENT," AND THE BAY OF
PIGS INVASION, THE GOVERNMENT USUALLY SUPPRESSES DAMAGING NEWS BUT
HIGHLIGHTS FAVORABLE NEWS.  IN THIS FILTERING PROCESS THE SECRECY STAMP
IS THE OFFICIALS' TOOL OF SUPPRESSION AND IT HAS BEEN USED TO WITHHOLD
INFORMATION WHICH IN "99 1/2%" OF THE CASES WOULD PRESENT NO DANGER TO
NATIONAL SECURITY.  /9/  TO REFUSE TO PUBLISH "CLASSIFIED" REPORTS
WOULD AT TIMES RELEGATE A PUBLISHER TO DISTRIBUTING ONLY THE PRESS
RELEASES OF GOVERNMENT OR REMAINING SILENT; IF HE PRINTED ONLY THE
PRESS RELEASES OR "LEAKS" HE WOULD BECOME AN ARM OF OFFICIALDOM, NOT
ITS CRITIC.  RATHER, IN MY VIEW, WHEN A PUBLISHER OBTAINS A CLASSIFIED
DOCUMENT HE SHOULD BE FREE TO PRINT IT WITHOUT FEAR OF RETRIBUTION,
UNLESS IT CONTAINS MATERIAL DIRECTLY BEARING ON FUTURE, SENSITIVE
PLANNING OF THE GOVERNMENT.  /10/  BY THAT TEST BEACON PRESS COULD WITH
IMPUNITY REPRODUCE THE PENTAGON PAPERS INASMUCH AS THEIR CONTENT "IS
ALL HISTORY, NOT FUTURE EVENTS.  NONE OF IT IS MORE RECENT THAN 1968." 
NEW YORK TIMES CO. V. UNITED STATES.  403 U.S.,AT 722 N. 3 (CONCURRING
OPINION). 

THE LATE MR. JUSTICE HARLAN IN THE PENTAGON PAPERS CASE SAID THAT IN
THAT SITUATION THE COURTS HAD ONLY TWO RESTRICTED FUNCTIONS TO PERFORM:
FIRST, TO ASCERTAIN WHETHER THE SUBJECT MATTER OF THE DISPUTE LIES
WITHIN THE PROPER COMPASS OF THE PRESIDENT'S CONSTITUTIONAL POWER; AND
SECOND, TO INSIST THAT THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED--
WHETHER STATE OR DEFENSE-- DETERMINE IF DISCLOSURE OF THE SUBJECT
MATTER "WOULD IRREPARABLY IMPAIR THE NATIONAL SECURITY."  BEYOND THOSE
TWO INQUIRIES, HE CONCLUDED, THE JUDICIARY MAY NOT GO.  ID., AT 757-758
(DISSENTING OPINION). 

MY VIEW IS QUITE DIFFERENT.  WHEN THE PRESS STANDS BEFORE THE COURT
AS A SUSPECTED CRIMINAL, IT IS THE DUTY OF THE COURT TO DISREGARD WHAT
THE PROSECUTION CLAIMS IS THE EXECUTIVE PRIVILEGE AND TO ACQUIT THE
PRESS OR OVERTURN THE RULING OR JUDGMENT AGAINST IT, IF THE FIRST
AMENDMENT AND THE ASSERTION OF THE EXECUTIVE PRIVILEGE CONFLICT.  FOR
THE EXECUTIVE PRIVILEGE-- NOWHERE MADE EXPLICIT IN THE CONSTITUTION--
IS NECESSARILY SUBORDINATE TO THE EXPRESS COMMANDS OF THE
CONSTITUTION.     UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304,
INVOLVED THE QUESTION WHETHER A PROCLAMATION ISSUED BY THE PRESIDENT,
PURSUANT TO A JOINT RESOLUTION OF THE CONGRESS, WAS ADEQUATE TO SUSTAIN
AN INDICTMENT.  THE COURT, IN HOLDING THAT IT WAS, DISCUSSED AT LENGTH
THE POWER OF THE PRESIDENT.  THE COURT SAID THAT THE POWER OF THE
PRESIDENT IN THE FIELD OF INTERNATIONAL RELATIONS DOES NOT REQUIRE AS A
BASIS AN ACT OF CONGRESS; BUT IT ADDED THAT HIS POWER "LIKE EVERY OTHER
GOVERNMENTAL POWER, MUST BE EXERCISED IN SUBORDINATION TO THE
APPLICABLE PROVISIONS OF THE CONSTITUTION."  ID., AT 320. 

WHEN THE EXECUTIVE BRANCH LAUNCHES A CRIMINAL PROSECUTION AGAINST
THE PRESS, IT MUST DO SO ONLY UNDER AN ACT OF CONGRESS.  YET CONGRESS
HAS NO AUTHORITY TO PLACE THE PRESS UNDER THE RESTRAINTS OF THE
EXECUTIVE PRIVILEGE WITHOUT "ABRIDGING" THE PRESS WITHIN THE MEANING OF
THE FIRST AMENDMENT. 

IN RELATED AND ANALOGOUS SITUATIONS, FEDERAL COURTS HAVE
SUBORDINATED THE EXECUTIVE PRIVILEGE TO THE REQUIREMENTS OF A FAIR
TRIAL. 

MR. CHIEF JUSTICE MARSHALL IN THE TRIAL OF AARON BURR RULED "(THAT
THE PRESIDENT OF THE UNITED STATES MAY BE SUBPOENAED, AND EXAMINED AS A
WITNESS, AND REQUIRED TO PRODUCE ANY PAPER IN HIS POSSESSION, IS NOT
CONTROVERTED."  UNITED STATES V. BURR, 25 F.CAS.  187, 191 (NO. 14,694)
(CC VA. 1807).  YET HE "MAY HAVE SUFFICIENT MOTIVES FOR DECLINING TO
PRODUCE A PARTICULAR PAPER, AND THOSE MOTIVES MAY BE SUCH AS TO
RESTRAIN THE COURT FROM ENFORCING ITS PRODUCTION."  IBID.  A LETTER TO
THE PRESIDENT, HE SAID, "MAY RELATE TO PUBLIC CONCERNS" AND NOT BE
"FORCED INTO PUBLIC VIEW."  ID., AT 192.  BUT WHERE THE PAPER WAS SHOWN
"TO BE ESSENTIAL TO THE JUSTICE OF THE CASE."  IBID., "THE PAPER
(SHOULD) BE PRODUCED, OR THE CAUSE BE CONTINUED."  IBID. 

JENCKS V. UNITED STATES, 353 U.S. 657, IS IN THAT TRADITION.  IT WAS
A CRIMINAL PROSECUTION FOR PERJURY, THE TELLING EVIDENCE AGAINST THE
ACCUSED BEING THE TESTIMONY OF GOVERNMENT INVESTIGATORS.  THE DEFENSE
ASKED FOR CONTEMPORARY NOTES MADE BY AGENTS AT THE TIME.  REFUSAL WAS
BASED ON THEIR CONFIDENTIAL CHARACTER.  WE HELD THAT TO BE REVERSIBLE
ERROR.  /11/ 

     "WE HOLD THAT THE CRIMINAL ACTION MUST BE DISMISSED WHEN THE

  GOVERNMENT, ON THE GROUND OF PRIVILEGE, ELECTS NOT TO COMPLY WITH

  AN ORDER TO PRODUCE, FOR THE ACCUSED'S INSPECTION AND FOR

  ADMISSION IN EVIDENCE, RELEVANT STATEMENTS OR REPORTS IN ITS

  POSSESSION OF GOVERNMENT WITNESSES TOUCHING THE SUBJECT MATTER OF

  THEIR TESTIMONY AT THE TRIAL.  ACCORD, ROVIARO V. UNITED STATES,

  353 U.S. 53, 60-61.  THE BURDEN IS THE GOVERNMENT'S, NOT TO BE

SHIFTED TO THE TRIAL JUDGE, TO DECIDE WHETHER THE PUBLIC

 PREJUDICE OF ALLOWING THE CRIME TO GO UNPUNISHED IS GREATER THAN

  THAT ATTENDANT UPON THE POSSIBLE DISCLOSURE OF STATE SECRETS AND

  OTHER CONFIDENTIAL INFORMATION IN THE GOVERNMENT'S POSSESSION." 

  ID., AT 672. 

CONGRESS ENACTED THE SO-CALLED JENCKS ACT, 18 U.S.C. 3500,
REGULATING THE USE OF GOVERNMENT DOCUMENTS IN CRIMINAL PROSECUTIONS. 
WE SUSTAINED THAT ACT.  SCALES V. UNITED STATES, 367 U.S. 203, 258. 
UNDER THE ACT A DEFENDANT "ON TRIAL IN A FEDERAL CRIMINAL PROSECUTION
IS ENTITLED, FOR IMPEACHMENT PURPOSES, TO RELEVANT AND COMPETENT
STATEMENTS OF A GOVERNMENT WITNESS IN POSSESSION OF THE GOVERNMENT
TOUCHING THE EVENTS OR ACTIVITIES AS TO WHICH THE WITNESS HAS TESTIFIED
AT THE TRIAL.  . . . THE COMMAND OF THE STATUTE IS THUS DESIGNED TO
FURTHER THE FAIR AND JUST ADMINISTRATION OF CRIMINAL JUSTICE, A GOAL OF
WHICH THE JUDICIARY IS THE SPECIAL GUARDIAN."  CAMPBELL V. UNITED
STATES, 365 U.S. 85, 92.  AND SEE CLANCY V. UNITED STATES, 365 U.S.
312. 

THE PROSECUTION OFTEN DISLIKES TO MAKE PUBLIC THE IDENTITY OF THE
INFORMER ON WHOSE INFORMATION ITS CASE RESTS.  BUT HIS IDENTITY MUST BE
DISCLOSED WHERE HIS TESTIMONY IS MATERIAL TO THE TRIAL.  ROVIARO V.
UNITED STATES, 353 U.S. 53.  IN OTHER WORDS, THE DESIRE FOR GOVERNMENT
SECRECY DOES NOT OVERRIDE THE DEMANDS FOR A FAIR TRIAL.  AND SEE SCHER
V. UNITED STATES, 305 U.S. 251, 254.  THE CONSTITUTIONAL DEMANDS FOR A
FAIR TRIAL, IMPLICIT IN THE CONCEPT OF DUE PROCESS, IN RE MURCHISON,
349 U.S. 133, 136, OVERRIDE THE GOVERNMENT'S DESIRE FOR SECRECY,
WHETHER THE IDENTITY OF AN INFORMER OR THE EXECUTIVE PRIVILEGE BE
INVOLVED.  AND SEE SMITH V. ILLINOIS, 390 U.S. 129. 

THE REQUIREMENTS OF THE FIRST AMENDMENT ARE NOT OF LESSER
MAGNITUDE.  THEY OVERRIDE ANY CLAIM TO EXECUTIVE PRIVILEGE.  AS STATED
IN UNITED STATES V. CURTISS-WRIGHT CORP., SUPRA, THE CLASS OF EXECUTIVE
PRIVILEGE "LIKE EVERY OTHER GOVERNMENTAL POWER, MUST BE EXERCISED IN
SUBORDINATION TO THE APPLICABLE PROVISIONS OF THE CONSTITUTION."  299
U.S.,AT 320. 

        III 

ASIDE FROM THE QUESTION OF THE EXTENT TO WHICH PUBLISHERS CAN BE
PENALIZED FOR PRINTING CLASSIFIED DOCUMENTS, SURELY THE FIRST AMENDMENT
PROTECTS AGAINST ALL INQUIRY INTO THE DISSEMINATION OF INFORMATION
WHICH, ALTHOUGH ONCE CLASSIFIED, HAS BECOME PART OF THE PUBLIC DOMAIN. 

TO SUMMON BEACON PRESS THROUGH ITS OFFICIALS BEFORE THE GRAND JURY
AND TO INQUIRE INTO WHY IT DID WHAT IT DID AND ITS PUBLICATION PLANS IS
"ABRIDGING" THE FREEDOM OF THE PRESS CONTRARY TO THE COMMAND OF THE
FIRST AMENDMENT.  IN LIGHT OF THE FACT THAT THESE DOCUMENTS WERE PART
OF THE OFFICIAL SENATE RECORD, /12/  BEACON PRESS HAS VIOLATED NO VALID
LAW, AND THE GRAND JURY'S SCRUTINY OF IT REDUCES TO "(EXPOSURE PURELY
FOR THE SAKE OF EXPOSURE."  UPHAUS V. WYMAN, 360 U.S.,AT 82 (BRENNAN,
J., DISSENTING).  AS IN UNITED STATES V. RUMELY, 345 U.S. 41, WHERE A
LEGISLATIVE COMMITTEE INQUIRED OF A PUBLISHER OF POLITICAL TRACTS AS TO
ITS CUSTOMERS' IDENTITIES, "(IF THE PRESENT INQUIRY WERE SANCTIONED,
THE PRESS WOULD BE SUBJECTED TO HARASSMENT THAT IN PRACTICAL EFFECT
MIGHT BE AS SERIOUS AS CENSORSHIP."  ID., AT 57 (CONCURRING OPINION). 
UNDER OUR CONSTITUTION THE GOVERNMENT HAS NO SURVEILLANCE OVER THE
PRESS.  THAT INCLUDES, AS WE HELD IN NEW YORK TIMES CO. V. UNITED
STATES, 403 U.S. 713, THE PROHIBITION AGAINST PRIOR RESTRAINTS.  YET
CRIMINAL PUNISHMENT FOR OR INVESTIGATIONS OF WHAT THE PRESS PUBLISHES,
THOUGH A DIFFERENT SPECIES OF ABRIDGMENT, IS NONETHELESS WITHIN THE BAN
OF THE FIRST AMENDMENT. 

THE STORY OF THE PENTAGON PAPERS IS A CHRONICLE OF SUPPRESSION OF
VITAL DECISIONS TO PROTECT THE REPUTATIONS AND POLITICAL HIDES OF MENT
WHO WORKED AN AMAZINGLY SUCCESSFUL SCHEME OF DECEPTION ON THE AMERICAN
PEOPLE.  THEY WERE SUCCESSFUL NOT BECAUSE THEY WERE ASTUTE BUT BECAUSE
THE PRESS HAD BECOME A FRIGHTENED, REGIMENTED, SUBMISSIVE INSTRUMENT,
FATTENING ON FAVORS FROM THOSE IN POWER AND FORGETTING THE GREAT
TRADITION OF REPORTING.  TO ALLOW THE PRESS FURTHER TO BE COWED BY
GRAND JURY INQUIRIES AND PROSECUTION IS TO CARRY THE CONCEPT OF
"ABRIDGING" THE PRESS TO FRIGHTENING PROPORTIONS. 

WHAT WOULD BE PERMISSIBLE IF BEACON PRESS "STOLE" THE PENTAGON
PAPERS IS IRRELEVANT TO TODAY'S DECISION.  WHAT BEACON PRESS PLANS TO
PUBLISH IS MATTER INTRODUCED INTO A PUBLIC RECORD BY A SENATOR ACTING
UNDER THE FULL PROTECTION OF THE SPEECH OR DEBATE CLAUSE.  /13/  IN
LIGHT OF THE COMMAND OF THE COMMAND OF THE FIRST AMENDMENT WE HAVE NO
CHOICE BUT TO RULE THAT HERE GOVERNMENT, NOT THE PRESS, IS LAWLESS. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS EXCEPT AS TO
BEACON PRESS, IN WHICH CASE I WOULD REVERSE. 

/1/  THE SPEECH OR DEBATE CLAUSE INCLUDED IN ART. I, SEC. 6, CL. 1,
OF THE CONSTITUTION PROVIDES AS RESPECTS SENATORS AND REPRESENTATIVES
THAT "FOR ANY SPEECH OR DEBATE IN EITHER HOUSE, THEY SHALL NOT BE
QUESTIONED IN ANY OTHER PLACE." 

/2/ AND SEE UNITED STATES V. JOHNSON, 383 U.S. 169, 172, 177; AND
TENNEY V. BRANDHOVE, 341 U.S. 367, 376. 

/3/  SEE DEVELOPMENTS IN THE LAW-- THE NATIONAL SECURITY INTEREST
AND CIVIL LIBERTIES, 85 HARV.L.REV.  1130, 1207-1215 (1972); NOTE, THE
RIGHT OF GOVERNMENT EMPLOYEES TO FURNISH INFORMATION TO CONGRESS:
STATUTORY AND CONSTITUTIONAL ASPECTS, 57 VA.L.REV.  885-887 (1971);
BERGER, EXECUTIVE PRIVILEGE V. CONGRESSIONAL INQUIRY, 12
U.C.L.A.L.REV.  1044 (1965); SCHWARTZ, EXECUTIVE PRIVILEGE AND
CONGRESSIONAL INVESTIGATORY POWER, 47 CALIF.L.REV.  3 (1959); EXECUTIVE
PRIVILEGE:  THE WITHHOLDING OF INFORMATION BY THE EXECUTIVE, HEARING ON
S. 1125 BEFORE THE SUBCOMMITTEE ON SEPARATION OF POWERS OF THE SENATE
COMMITTEE ON THE JUDICIARY, 92D CONG., 1ST SESS. (1971).  THERE IS NO
EXPRESS STATUTORY AUTHORITY FOR THE CLASSIFICATION PROCEDURE USED
CURRENTLY BY THE BUREAUCRACIES, ALTHOUGH IT HAS BEEN CLAIMED THAT
CONGRESS HAS RECOGNIZED IT IN SUCH MEASURES AS THE EXEMPTIONS FROM THE
DISCLOSURE REQUIREMENTS OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C.
552(B) AND THE ESPIONAGE LAWS, 18 U.S.C. 792-799.  RATHER, THE
CLASSIFICATION REGIME HAS BEEN IMPLEMENTED THROUGH A SERIES OF
EXECUTIVE ORDERS DESCRIBED IN DEVELOPMENTS IN THE LAW, SUPRA, AT 1192
1198.  IT HAS ALSO BEEN CLAIMED THAT SEVERAL SECTIONS OF ART. II (SUCH
AS THE DESIGNATION OF THE PRESIDENT AS COMMANDER IN CHIEF OF THE ARMY
AND NAVY) CONFER UPON THE EXECUTIVE AN INHERENT POWER TO CLASSIFY
DOCUMENTS.  SEE REPORT OF THE COMMISSION ON GOVERNMENT SECURITY,
S.DOC.NO. 64, 85TH CONG., 1ST SESS., 158 (1957). 

/4/  HEARINGS ON S. 1125, SUPRA, N. 3, AT 517-518.  ONE ESTIMATE OF
THE NUMBER OF OFFICIALS WHO CAN CLASSIFY DOCUMENTS IS EVEN HIGHER.  IN
THE DEPARTMENT OF DEFENSE ALONE, 803 PERSONS HAVE THE AUTHORITY TO
CLASSIFY DOCUMENTS TOP SECRET; 7,687 HAVE PERMISSION TO STAMP THEM
SECRET, AND 31,048 HAVE THE AUTHORIZATION TO DENOMINATE PAPERS
CONFIDENTIAL.  UNITED STATES GOVERNMENT INFORMATION POLICIES AND
PRACTICES-- THE PENTAGON PAPERS, HEARINGS BEFORE A SUBCOMMITTEE OF THE
HOUSE COMMITTEE ON GOVERNMENT OPERATIONS, 92D CONG., 1ST SESS., PT. 2,
P. 599 (STATEMENT OF DAVID COOKE, DEPUTY ASSISTANT SECRETARY OF
DEFENSE). 

/5/  SENATOR FULBRIGHT, CHAIRMAN OF THE SENATE FOREIGN RELATIONS
COMMITTEE, RECENTLY TESTIFIED THAT HIS COMMITTEE HAD BEEN SO
UNSUCCESSFUL IN OBTAINING ACCURATE INFORMATION ABOUT THE VIETNAM WAR
FROM THE EXECUTIVE BRANCH THAT IT WAS REQUIRED TO HIRE ITS OWN
INVESTIGATORS AND SEND THEM TO SOUTHEAST ASIA.  HEARINGS ON S. 1125,
SUPRA, N. 3, AT 206. 

/6/  CONGRESSIONAL GOVERNMENT 303-304 (1885). 

/7/  SECRECY IN A FREE SOCIETY, 213 NATION 454, 456 (1971). 

/8/  ATTORNEY GENERAL'S MEMORANDUM ON THE PUBLIC INFORMATION SECTION
OF THE ADMINISTRATIVE PROCEDURE ACT, 20 AD.L.REV.  263, 264 (1967). 

/9/  UNITED STATES GOVERNMENT INFORMATION POLICIES AND PRACTICES--
THE PENTAGON PAPERS, HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON GOVERNMENT OPERATIONS, 92D CONG., 1ST SESS., PT. 1, P. 97;
CONG. HORTON, THE PUBLIC'S RIGHT TO KNOW, 77 CASE & COMM. 3, 5 (1972). 
WE ARE TOLD THAT THE MILITARY HAS WITHHELD AS CONFIDENTIAL A LARGE
SELECTION OF PHOTOGRAPHS SHOWING ATROCITIES AGAINST VIETNAMESE
CIVILIANS WROUGHT BY BOTH COMMUNIST AND UNITED STATES FORCES.  EVEN A
TRAINING MANUAL DEVOTED TO THE HISTORY OF THE BOLSHEVIK REVOLUTION WAS
DUBBED SECRET BY THE MILITARY.  HEARINGS, SUPRA, PT. 3, AT 966, 967
(TESTIMONY OF FORMER CLASSIFICATION OFFICER).  AND ORDINARY NEWSPAPER
CLIPPINGS OF CRITICISM AIMED AT THE MILITARY HAVE BEEN ROUTINELY MARKED
SECRET.  ID., PT. 1, AT 100.  FORMER JUSTICE AND FORMER AMBASSADOR TO
THE UNITED NATIONS ARTHUR GOLDBERG HAS STATED:  "I HAVE READ AND
PREPARED COUNTLESS THOUSANDS OF CLASSIFIED DOCUMENTS.  IN MY
EXPERIENCE, 75 PERCENT OF THESE DOCUMENTS SHOULD NEVER HAVE BEEN
CLASSIFIED IN THE FIRST PLACE; ANOTHER 15 PERCENT QUICKLY OUTLIVED THE
NEED FOR SECRECY; AND ONLY ABOUT 10 PERCENT GENUINELY REQUIRED
RESTRICTED ACCESS OVER ANY SIGNIFICANT PERIOD OF TIME."  ID., PT. 1, AT
12. 

/10/  MOREOVER, I WOULD NOT EVEN PERMIT A CONVICTION FOR THE
PUBLICATION OF DOCUMENTS RELATED TO FUTURE AND SENSITIVE PLANNING WHERE
THE JURY WAS PERMITTED, AS IT WAS IN UNITED STATES V. DRUMMOND, 354
F.2D 132, 152 (CA2), TO CONSIDER THE FACT THAT THE DOCUMENTS HAD BEEN
CLASSIFIED BY THE EXECUTIVE BRANCH PURSUANT TO ITS PRESENT OVERBROAD
SYSTEM WHICH, IN MY VIEW, UNNECESSARILY SWEEPS TOO MUCH NONSENSITIVE
INFORMATION INTO THE LOCKED FILES OF THE BUREAUCRACIES.  IN GENERAL,
HOWEVER, I AGREE THAT THERE MAY BE SITUATIONS AND OCCASIONS IN WHICH
THE RIGHT TO KNOW MUST YIELD TO OTHER COMPELLING AND OVERRIDING
INTERESTS.  AS PROFESSOR HENKIN HAS OBSERVED, MANY DELIBERATIONS IN
GOVERNMENT ARE KEPT CONFIDENTIAL, SUCH AS THE PROCEEDINGS OF GRAND
JURIES OR OUR OWN CONFERENCES, DESPITE THE FACT THAT THE BREADTH OF
PUBLIC KNOWLEDGE IS THEREBY DIMINISHED.  HENKIN, THE RIGHT TO KNOW AND
THE DUTY TO WITHHOLD:  THE CASE OF THE PENTAGON PAPERS, 120
U.PA.L.REV.  271, 274-275 (1971). 

/11/  IN ALDERMAN V. UNITED STATES, 394 U.S. 165, WE TOOK A LIKE
COURSE IN REQUIRING THE PROSECUTION TO DISCLOSE TO THE DEFENSE RECORDS
OF UNLAWFUL ELECTRONIC SURVEILLANCE: 

"IT MAY BE THAT THE PROSPECT OF DISCLOSURE WILL COMPEL THE
GOVERNMENT TO DISMISS SOME PROSECUTIONS IN DEFERENCE TO NATIONAL
SECURITY OR THIRD-PARTY INTERESTS.  BUT THIS IS A CHOICE THE GOVERNMENT
CONCEDEDLY FACES WITH RESPECT TO MATERIAL WHICH IT HAS OBTAINED
ILLEGALLY AND WHICH IT ADMITS, OR WHICH A JUDGE WOULD FIND, IS ARGUABLY
RELEVANT TO THE EVIDENCE OFFERED AGAINST THE DEFENDANT."  ID., AT 184. 

A DIFFERENT RULE OBTAINS IN CIVIL SUITS WHERE THE GOVERNMENT IS NOT
THE MOVING PARTY BUT IS A DEFENDANT AND HAS SPECIFIED THE TERMS ON
WHICH IT MAY BE SUED.  UNITED STATES V. REYNOLDS, 345 U.S. 1, 12. 

/12/  REPUBLICATION OF WHAT HAS FILLED THE CONGRESSIONAL RECORD IS
COMMONPLACE.  NEWSPAPERS, TELEVISION, AND RADIO USE ITS CONTENTS
CONSTANTLY.  I SEE NO DIFFERENCE BETWEEN REPUBLICATION OF A PARAGRAPH
AND REPUBLICATION OF MATERIAL AMOUNTING TO A BOOK.  ONCE A DOCUMENT OR
A SERIES OF DOCUMENTS IS IN THE RECORD OF THE SENATE OR HOUSE OR ONE OF
ITS COMMITTEES IT IS IN THE PUBLIC DOMAIN.     /13/  IT IS CONCEDED
THAT ALL OF THE MATERIAL WHICH BEACON PRESS HAS UNDERTAKEN TO PUBLISH
WAS INTRODUCED INTO THE SUBCOMMITTEE RECORD AND THAT THIS RECORD IS
OPEN TO THE PUBLIC.  SEE BRIEF FOR UNITED STATES 3. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS, AND MR. JUSTICE
MARSHALL, JOIN, DISSENTING. 

THE FACTS OF THIS LITIGATION, WHICH ARE DETAILED BY THE COURT, AND
THE OBJECTIONS TO OVERCLASSIFICATION OF DOCUMENTS BY THE EXECUTIVE,
DETAILED BY MY BROTHER DOUGLAS, NEED NOT BE REPEATED HERE.  MY CONCERN
IS WITH THE NARROW SCOPE ACCORDED THE SPEECH OR DEBATE CLAUSE BY
TODAY'S DECISION.  I FULLY AGREE WITH THE COURT THAT A CONGRESSMAN'S
IMMUNITY UNDER THE CLAUSE MUST ALSO BE EXTENDED TO HIS AIDES IF IT IS
TO BE AT ALL EFFECTIVE.  THE COMPLEXITIES AND PRESS OF CONGRESSIONAL
BUSINESS MAKE IT IMPOSSIBLE FOR A MEMBER TO FUNCTION WITHOUT THE CLOSE
COOPERATION OF HIS LEGISLATIVE ASSISTANTS.  THEIR ROLE AS HIS AGENTS IN
THE PERFORMANCE OF OFFICIAL DUTIES REQUIRES THAT THEY SHARE HIS
IMMUNITY FOR THOSE ACTS.  THE SCOPE OF THAT IMMUNITY, HOWEVER, IS AS
IMPORTANT AS THE PERSONS TO WHOM IT EXTENDS.  IN MY VIEW, TODAY'S
DECISION SO RESTRICTS THE PRIVILEGE OF SPEECH OR DEBATE AS TO ENDANGER
THE CONTINUED PERFORMANCE OF LEGISLATIVE TASKS THAT ARE VITAL TO THE
WORKINGS OF OUR DEMOCRATIC SYSTEM. 

    I 

IN HOLDING THAT SENATOR GRAVEL'S ALLEGED ARRANGEMENT WITH BEACON
PRESS TO PUBLISH THE PENTAGON PAPERS IS NOT SHIELDED FROM EXTRA
SENATORIAL INQUIRY BY THE SPEECH OR DEBATE CLAUSE, THE COURT ADOPTS
WHAT FOR ME IS A FAR TOO NARROW VIEW OF THE LEGISLATIVE FUNCTION.  THE
COURT SEEMS TO ASSUME THAT WORDS SPOKEN IN DEBATE OR WRITTEN IN
CONGRESSIONAL REPORTS ARE PROTECTED BY THE CLAUSE, SO THAT IF SENATOR
GRAVEL HAD RECITED PART OF THE PENTAGON PAPERS ON THE SENATE FLOOR OR
COPIED THEM INTO A SENATE REPORT, THOSE ACTS COULD NOT BE QUESTIONED
"IN ANY OTHER PLACE."  YET BECAUSE HE SOUGHT A WIDER AUDIENCE, TO
PUBLICIZE INFORMATION DEEMED RELEVANT TO MATTERS PENDING BEFORE HIS OWN
COMMITTEE, THE SENATOR SUDDENLY LOSES HIS IMMUNITY AND IS EXPOSED TO
GRAND JURY INVESTIGATION AND POSSIBLE PROSECUTION FOR THE
REPUBLICATION.  THE EXPLANATION FOR THIS ANOMALOUS RESULT IS THE
COURT'S BELIEF THAT "SPEECH OR DEBATE" ENCOMPASSES ONLY ACTS NECESSARY
TO THE INTERNAL DELIBERATIONS OF CONGRESS CONCERNING PROPOSED
LEGISLATION.  "HERE," ACCORDING TO THE COURT, "PRIVATE PUBLICATION BY
SENATOR GRAVEL THROUGH THE COOPERATION OF BEACON PRESS WAS IN NO WAY
ESSENTIAL TO THE DELIBERATIONS OF THE SENATE."  ANTE, AT 625. 
THEREFORE, "THE SENATOR'S ARRANGEMENTS WITH BEACON PRESS WERE NOT PART
AND PARCEL OF THE LEGISLATIVE PROCESS."  ID., AT 626. 

THUS, THE COURT EXCLUDES FROM THE SPHERE OF PROTECTED LEGISLATIVE
ACTIVITY A FUNCTION THAT I HAD SUPPOSED LAY AT THE HEART OF OUR
DEMOCRATIC SYSTEM.  I SPEAK, OF COURSE, OF THE LEGISLATOR'S DUTY TO
INFORM THE PUBLIC ABOUT MATTERS AFFECTING THE ADMINISTRATION OF
GOVERNMENT.  THAT THIS "INFORMING FUNCTION" FALLS INTO THE CLASS OF
THINGS "GENERALLY DONE IN A SESSION OF THE HOUSE BY ONE OF ITS MEMBERS
IN RELATION TO THE BUSINESS BEFORE IT," KILBOURN V. THOMPSON, 103 U.S.
168, 204 (1881), WAS EXPLICITLY ACKNOWLEDGE BY THE COURT IN WATKINS V.
UNITED STATES, 354 U.S. 178 (1957).  IN SPEAKING OF THE "POWER OF THE
CONGRESS TO INQUIRE INTO AND PUBLICIZE CORRUPTION, MALADMINISTRATION OR
INEFFICIENCY IN AGENCIES OF THE GOVERNMENT," THE COURT NOTED THAT
"(FROM THE EARLIEST TIMES IN ITS HISTORY, THE CONGRESS HAS ASSIDUOUSLY
PERFORMED AN 'INFORMING FUNCTION'  OF THIS NATURE."  ID., AT 200 N.
33. 

WE NEED LOOK NO FURTHER THAN CONGRESS ITSELF TO FIND EVIDENCE
SUPPORTING THE COURT'S OBSERVATION IN WATKINS.  CONGRESS HAS PROVIDED
FINANCIAL SUPPORT FOR COMMUNICATIONS BETWEEN ITS MEMBERS AND THE
PUBLIC, INCLUDING THE FRANKING PRIVILEGE FOR LETTERS, TELEPHONE AND
TELEGRAPH ALLOWANCES, STATIONERY ALLOTMENTS, AND FAVORABLE PRICES ON
REPRINTS FROM THE CONGRESSIONAL RECORD.  CONGRESSIONAL HEARINGS,
MOREOVER, ARE NOT CONFINED TO GATHERING INFORMATION FOR INTERNAL
DISTRIBUTION, BUT ARE OFTEN WIDELY PUBLICIZED, SOMETIMES TELEVISED, AS
A MEANS OF ALERTING THE ELECTORATE TO MATTERS OF PUBLIC IMPORT AND
CONCERN.  THE LIST IS VIRTUALLY ENDLESS, BUT A SMALL SAMPLING OF
CONTEMPORANEOUS HEARINGS OF THIS KIND WOULD CERTAINLY INCLUDE THE
KEFAUVER HEARINGS ON ORGANIZED CRIME, THE 1966 HEARINGS ON AUTOMOBILE
SAFETY, AND THE NUMEROUS HEARINGS OF THE SENATE FOREIGN RELATIONS
COMMITTEE ON THE ORIGINS AND CONDUCT OF THE WAR IN VIETNAM.  IN SHORT,
THERE CAN BE LITTLE DOUBT THAT INFORMING THE ELECTORATE IS A THING
"GENERALLY DONE" BY THE MEMBERS OF CONGRESS "IN RELATION TO THE
BUSINESS BEFORE IT." 

THE INFORMING FUNCTION HAS BEEN CITED BY NUMEROUS STUDENTS OF
AMERICAN POLITICS, BOTH WITHIN AND WITHOUT THE GOVERNMENT, AS AMONG THE
MOST IMPORTANT RESPONSIBILITIES OF LEGISLATIVE OFFICE.  WOODROW WILSON,
FOR EXAMPLE, EMPHASIZED ITS ROLE IN PRESERVING THE SEPARATION OF POWERS
BY ENSURING THAT THE ADMINISTRATION OF PUBLIC POLICY BY THE EXECUTIVE
IS UNDERSTOOD BY THE LEGISLATURE AND ELECTORATE: 

     "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." 

  CONGRESSIONAL GOVERNMENT 303 (1885). 

OTHERS HAVE VIEWED THE GIVE-AND-TAKE OF SUCH COMMUNICATION AS AN
IMPORTANT MEANS OF EDUCATING BOTH THE LEGISLATOR AND HIS CONSTITUENTS: 

"WITH THE DECLINE OF CONGRESS AS AN ORIGINAL SOURCE OF LEGISLATION,
THIS FUNCTION OF KEEPING THE GOVERNMENT IN TOUCH WITH PUBLIC OPINION
AND OF KEEPING PUBLIC OPINION IN TOUCH WITH THE CONDUCT OF THE
GOVERNMENT BECOMES INCREASINGLY IMPORTANT.  CONGRESS NO LONGER GOVERNS
THE COUNTRY; THE ADMINISTRATION IN ALL ITS RAMIFICATIONS ACTUALLY
GOVERNS.  BUT CONGRESS SERVES AS A FORUM THROUGH WHICH PUBLIC OPINION
CAN BE EXPRESSED, GENERAL POLICY DISCUSSED, AND THE CONDUCT OF
GOVERNMENTAL AFFAIRS EXPOSED AND CRITICIZED."  THE REORGANIZATION OF
CONGRESS, A REPORT OF THE COMMITTEE ON CONGRESS OF THE AMERICAN
POLITICAL SCIENCE ASSOCIATION 14 (1945).  THOUGH I FULLY SHARE THESE
AND RELATED VIEWS ON THE EDUCATIONAL VALUES SERVED BY THE INFORMING
FUNCTION, THERE IS YET ANOTHER, AND PERHAPS MORE FUNDAMENTAL, INTEREST
AT ATAKE.  IT REQUIRES NO CITATION OF AUTHORITY TO STATE THAT PUBLIC
CONCERN OVER CURRENT ISSUES-- THE WAR, RACE RELATIONS, GOVERNMENTAL
INVASIONS OF PRIVACY-- HAS TRANSFORMED ITSELF IN RECENT YEARS INTO WHAT
MANY BELIEVE IS A CRISIS OF CONFIDENCE, IN OUR SYSTEM OF GOVERNMENT AND
ITS CAPACITY TO MEET THE NEEDS AND REFLECT THE WANTS OF THE AMERICAN
PEOPLE.  COMMUNICATION BETWEEN CONGRESS AND THE ELECTORATE TENDS TO
ALLEVIATE THAT DOUBT THE EXPOSING AND CLARIFYING THE WORKINGS OF THE
POLITICAL SYSTEM, THE POLICIES UNDERLYING NEW LAWS AND THE ROLE OF THE
EXECUTIVE IN THEIR ADMINISTRATION.  TO THE EXTENT THAT THE INFORMING
FUNCTION SUCCEEDS IN FOSTERING PUBLIC FAITH IN THE RESPONSIVENESS OF
GOVERNMENT, IT IS NOT ONLY AN "ORDINARY" TASK OF THE LEGISLATOR BUT ONE
THAT IS ESSENTIAL TO THE CONTINUED VITALITY OF OUR DEMOCRATIC
INSTITUTIONS. 

UNLIKE THE COURT, THEREFORE, I THINK THAT THE ACTIVITIES OF
CONGRESSMEN IN COMMUNICATING WITH THE PUBLIC ARE LEGISLATIVE ACTS
PROTECTED BY THE SPEECH OR DEBATE CLAUSE.  I AGREE WITH THE COURT THAT
NOT EVERY TASK PERFORMED BY A LEGISLATOR IS PRIVILEGED; INTERVENTION
BEFORE EXECUTIVE DEPARTMENTS IS ONE THAT IS NOT.  BUT THE INFORMING
FUNCTION CARRIES A FAR MORE PERSUASIVE CLAIM TO THE PROTECTIONS OF THE
CLAUSE.  IT HAS BEEN RECOGNIZED BY THIS COURT AS SOMETHING "GENERALLY
DONE" BY CONGRESSMEN, THE CONGRESS ITSELF HAS ESTABLISHED SPECIAL
CONCESSIONS DESIGNED TO LOWER THE COST OF SUCH COMMUNICATION, AND, MOST
IMPORTANT, THE FUNCTION FURTHERS SEVERAL WELL-RECOGNIZED GOALS OF
REPRESENTATIVE GOVERNMENT.  TO SAY IN THE FACE OF THESE FACTS THAT THE
INFORMING FUNCTION IS NOT PRIVILEGED MERELY BECAUSE IT IS NOT NECESSARY
TO THE INTERNAL DELIBERATIONS OF CONGRESS IS TO GIVE THE SPEECH OR
DEBATE CLAUSE AN ARTIFICIAL AND NARROW READING UNSUPPORTED BY REASON. 

NOR CAN IT BE SUPPORTED BY HISTORY.  THERE IS SUBSTANTIAL EVIDENCE
THAT THE FRAMERS INTENDED THE SPEECH OR DEBATE CLAUSE TO COVER ALL
COMMUNICATIONS FROM A CONGRESSMAN TO HIS CONSTITUENTS.  THOMAS
JEFFERSON CLEARLY EXPRESSED THAT VIEW OF LEGISLATIVE PRIVILEGE IN A
CASE INVOLVING SAMUEL CABELL, CONGRESSMAN FROM VIRGINIA.  IN 1797 A
FEDERAL GRAND JURY IN VIRGINIA INVESTIGATED THE CONDUCT OF SEVERAL
CONGRESSMEN, INCLUDING CABELL, IN SENDING NEWSLATTERS TO CONSTITUENTS
CRITICAL OF THE ADMINISTRATION'S POLICY IN THE WAR WITH FRANCE.  THE
GRAND JURY FOUND THAT THE CONGRESSMEN HAD ENDEAVORED "AT A TIME OF REAL
PUBLIC DANGER, TO DISSEMINATE UNFOUNDED CALUMNIES AGAINST THE HAPPY
GOVERNMENT OF THE UNITED STATES, AND THEREBY TO SEPARATE THE PEOPLE
THEREFROM; AND TO INCREASE OR PRODUCE A FOREIGN INFLUENCE, RUINOUS TO
THE PEACE, HAPPINESS, AND INDEPENDENCE OF THESE UNITED STATES." 
JEFFERSON IMMEDIATELY DRAFTED A LONG ESSAY SIGNED BY HIMSELF AND
SEVERAL CITIZENS OF CABELL'S DISTRICT, CONDEMNING THE GRAND JURY
INVESTIGATION AS A BLATANT VIOLATION OF THE CONGRESSIONAL PRIVILEGE. 
REVISED AND JOINED BY JAMES MADISON, THE PROTEST WAS FORWARDED TO THE
VIRGINIA HOUSE OF DELEGATES.  IT READS IN PART AS FOLLOWS: 

"(THAT IN ORDER TO GIVE TO THE WILL OF THE PEOPLE THE INFLUENCE IT
OUGHT TO HAVE, AND THE INFORMATION WHICH MAY ENABLE THEM TO EXERCISE IT
USEFULLY, IT WAS A PART OF THE COMMON LAW, ADOPTED AS THE LAW OF THIS
LAND, THAT THEIR REPRESENTATIVES, IN THE DISCHARGE OF THEIR FUNCTIONS,
SHOULD BE FREE FROM THE COGNIZANCE OR COERCION OF THE CO-ORDINATE
BRANCHES, JUDICIARY AND EXECUTIVE; AND THAT THEIR COMMUNICATIONS WITH
THEIR CONSTITUENTS SHOULD OF RIGHT, AS OF DUTY ALSO, BE FREE, FULL, AND
UNAWED BY ANY; THAT SO NECESSARY HAS THIS INTERCOURSE BEEN DEEMED IN
THE COUNTRY FROM WHICH THEY DEPRIVE PRINCIPALLY THEIR DESCENT AND LAWS,
THAT THE CORRESPONDENCE BETWEEN THE REPRESENTATIVE AND CONSTITUENT IS
PRIVILEGED THERE TO PASS FREE OF EXPENSE THROUGH THE CHANNEL OF THE
PUBLIC POST, AND THAT THE PROCEEDINGS OF THE LEGISLATURE HAVE BEEN
KNOWN TO BE ARRESTED AND SUSPENDED AT TIMES UNTIL THE REPRESENTATIVES
COULD GO HOME TO THEIR SEVERAL COUNTIES AND CONFER WITH THEIR
CONSTITUENTS. 

        .          .          .          . 

     "THAT WHEN CIRCUMSTANCES REQUIRED THAT THE ANCIENT

  CONFEDERATION OF THIS WITH THE SISTER STATES, FOR THE GOVERNMENT

OF THEIR COMMON CONCERNS, SHOULD BE IMPROVED INTO A MORE REGULAR

  AND EFFECTIVE FORM OF GENERAL GOVERNMENT, THE SAME REPRESENTATIVE

  PRINCIPLE WAS PRESERVED IN THE NEW LEGISLATURE, ONE BRANCH OF

  WHICH WAS TO BE CHOSEN DIRECTLY BY THE CITIZENS OF EACH STATE,

  AND THE LAWS AND PRINCIPLES REMAINED UNALTERED WHICH PRIVILEGED

  THE REPRESENTATIVE FUNCTIONS, WHETHER TO BE EXERCISED IN THE

  STATE OR GENERAL GOVERNMENT, AGAINST THE COGNIZANCE AND NOTICE OF

  THE CO-ORDINATE BRANCHES, EXECUTIVE AND JUDICIARY; AND FOR ITS

SAFE AND CONVENIENT EXERCISE, THE INTER-COMMUNICATION OF THE

  REPRESENTATIVE AND CONSTITUENT HAS BEEN SANCTIONED AND PROVIDED

  FOR THROUGH THE CHANNEL OF THE PUBLIC POST, AT THE PUBLIC

  EXPENSE. 

        .          .          .         . 

     "THAT THE GRAND JURY IS A PART OF THE JUDICIARY, NOT PERMANENT

  INDEED, BUT IN OFFICE, PRO HAC VICE AND RESPONSIBLE AS OTHER

  JUDGES ARE FOR THEIR ACTINGS AND DOINGS WHILE IN OFFICE:  THAT

  FOR THE JUDICIARY TO INTERPOSE IN THE LEGISLATIVE DEPARTMENT

  BETWEEN THE CONSTITUENT AND HIS REPRESENTATIVE, TO CONTROL THEM

  IN THE EXERCISE OF THEIR FUNCTIONS OR DUTIES TOWARDS EACH OTHER,

  TO OVERAWE THE FREE CORRESPONDENCE WHICH EXISTS AND OUGHT TO

 EXIST BETWEEN THEM, TO DICTATE WHAT COMMUNICATIONS MAY PASS

  BETWEEN THEM, AND TO PUNISH ALL OTHERS, TO PUT THE REPRESENTATIVE

  INTO JEOPARDY OF CRIMINAL PROSECUTION, OF VEXATION, EXPENSE, AND

  PUNISHMENT BEFORE THE JUDICIARY, IF HIS COMMUNICATIONS, PUBLIC OR

  PRIVATE, DO NOT EXACTLY SQUARE WITH THEIR IDEAS OF FACT OR RIGHT,

  OR WITH THEIR DESIGNS OF WRONG, IS TO PUT THE LEGISLATIVE

  DEPARTMENT UNDER THE FEET OF THE JUDICIARY, IS TO LEAVE US,

  INDEED, THE SHADOW, BUT TO TAKE AWAY THE SUBSTANCE OF

  REPRESENTATION, WHICH REQUIRES ESSENTIALLY THAT THE

  REPRESENTATIVE BE AS FREE AS HIS CONSTITUENTS WOULD BE, THAT THE

  SAME INTERCHANGE OF SENTIMENT BE LAWFUL BETWEEN HIM AND THEM AS

WOULD BE LAWFUL AMONG THEMSELVES WERE THEY IN THE PERSONAL

 TRANSACTION OF THEIR OWN BUSINESS; IS TO DO AWAY THE INFLUENCE OF

  THE PEOPLE OVER THE PROCEEDINGS OF THEIR REPRESENTATIVES BY

  EXCLUDING FROM THEIR KNOWLEDGE, BY THE TERROR OF PUNISHMENT, ALL

  BUT SUCH INFORMATION OR MISINFORMATION AS MAY SUIT THEIR OWN

  VIEWS; AND IS THE MORE VITALLY DANGEROUS WHEN IT IS CONSIDERED

  THAT GRAND JURORS ARE SELECTED BY OFFICERS NOMINATED AND HOLDING

  THEIR PLACES AT THE WILL OF THE EXECUTIVE . . .; AND FINALLY, IS

  TO GIVE TO THE JUDICIARY, AND THROUGH THEM TO THE EXECUTIVE, A

COMPLETE PREPONDERANCE OVER THE LEGISLATURE RENDERING INEFFECTUAL

  THAT WISE AND CAUTIOUS DISTRIBUTION OF POWERS MADE BY THE

  CONSTITUTION BETWEEN THE THREE BRANCHES, AND SUBORDINATING TO THE

  OTHER TWO THAT BRANCH WHICH MOST IMMEDIATELY DEPENDS ON THE

  PEOPLE THEMSELVES, AND IS RESPONSIBLE TO THEM AT SHORT PERIODS." 

  8 THE WORKS OF THOMAS JEFFERSON 322-327 (FORD ED. 1904). 

JEFFERSON'S PROTEST IS PERHAPS THE MOST SIGNIFICANT AND CERTAINLY THE
MOST COGENT ANALYSIS OF THE PRIVILEGED NATURE COMMUNICATION BETWEEN
CONGRESSMAN AND PUBLIC.  ITS COMMENTS ON THE HISTORY, PURPOSE, AND
SCOPE OF THE CLAUSE LEAVE NO ROOM FOR THE NOTION THAT THE EXECUTIVE OR
JUDICIARY CAN IN ANY WAY QUESTION THE CONTENTS OF THAT DIALOGUE.  NOR
WAS JEFFERSON ALONE AMONG THE FRAMERS IN THAT VIEW.  ASIDE FROM
MADISON, WHO JOINED IN THE PROTEST, JAMES WILSON TOOK THE POSITION THAT
A MEMBER OF CONGRESS "SHOULD ENJOY THE FULLEST LIBERTY OF SPEECH, AND .
. . SHOULD BE PROTECTED FROM THE RESENTMENT OF EVERY ONE, HOWEVER
POWERFUL, TO WHOM THE EXERCISE OF THAT LIBERTY MAY OCCASION OFFENCE." 
1 WORKS OF JAMES WILSON 421 (R. MCCLOSKEY ED. 1967).  WILSON, A MEMBER
OF THE COMMITTEE RESPONSIBLE FOR DRAFTING THE SPEECH OR DEBATE CLAUSE,
STATED IN PLAINEST TERMS HIS BELIEF IN THE DUTY OF CONGRESSMEN TO
INFORM THE PEOPLE ABOUT PROCEEDINGS IN THE CONGRESS: 

     "THAT THE CONDUCT AND PROCEEDINGS OF REPRESENTATIVES SHOULD BE

  AS OPEN AS POSSIBLE TO THE INSPECTION OF THOSE WHOM THEY

  REPRESENT, SEEMS TO BE, IN REPUBLICAN GOVERNMENT, A MAXIM, OF

  WHOSE TRUTH OR IMPORTANCE THE SMALLEST DOUBT CANNOT BE

  ENTERTAINED.  THAT, BY A NECESSARY CONSEQUENCE, EVERY MEASURE,

WHICH WILL FACILITATE OR SECURE THIS OPEN COMMUNICATION OF THE

  EXERCISE OF DELEGATED POWER, SHOULD BE ADOPTED AND PATRONISED BY

  THE CONSTITUTION AND LAWS OF EVERY FREE STATE, SEEMS TO BE

  ANOTHER MAXIM, WHICH IS THE UNAVOIDABLE RESULT OF THE FORMER." 

  ID., AT 422. 

WILSON'S STATEMENTS, LIKE THOSE OF JEFFERSON AND MADISON, REFLECT A
DEEP CONVICTION OF THE FRAMERS, THAT SELF-GOVERNMENT CAN SUCCEED ONLY
WHEN THE PEOPLE ARE INFORMED BY THEIR REPRESENTATIVES, WITHOUT
INTERFERENCE BY THE EXECUTIVE OR JUDICIARY, CONCERNING THE CONDUCT OF
THEIR AGENTS IN GOVERNMENT.  THAT CONVICTION IS NO LESS VALID TODAY
THAN IT WAS AT THE TIME OF OUR FOUNDING.  I WOULD HONOR THE CLEAR
INTENT OF THE FRAMERS AND EXTEND TO THE INFORMING FUNCTION THE
PROTECTIONS EMBODIED IN THE SPEECH OR DEBATE CLAUSE. 

THE COURT, HOWEVER, OFFERS NOT A SHRED OF EVIDENCE CONCERNING THE
FRAMERS' INTENT, BUT RELIES INSTEAD ON THE ENGLISH VIEW OF LEGISLATIVE
PRIVILEGE TO SUPPORT ITS INTERPRETATION OF THE CLAUSE.  LIKE THE COURT
ITSELF, ANTE, AT 623-624, N. 14, I HAVE SOME DOUBT CONCERNING THE
RELEVANCE OF ENGLISH AUTHORITY TO THIS CASE, PARTICULARLY AUTHORITY
POST-DATING THE ADOPTION OF OUR CONSTITUTION.  BUT IN ANY EVENT IT IS
PLAIN THAT THE COURT HAS MISREAD THE HISTORY ON WHICH IT RELIES.  THE
SPEECH OR DEBATE CLAUSE OF THE ENGLISH BILL OF RIGHTS WAS AT LEAST IN
PART THE PRODUCT OF A STRUGGLE BETWEEN PARLIAMENT AND CROWN OVER THE
VERY TYPE OF ACTIVITY INVOLVED IN THIS LITIGATION.  DURING THE REIGN OF
CHARLES II, THE HOUSE OF COMMONS RECEIVED A NUMBER OF REPORTS ABOUT AN
ALLEGED PLOT BETWEEN THE CROWN AND THE KING OF FRANCE TO RESTORE
CATHOLICISM AS THE ESTABLISHED RELIGION OF ENGLAND.  THE MOST FAMOUS OF
THESE REPORTS, DANGERFIELD'S NARRATIVE, WAS ENTERED INTO THE COMMONS
JOURNAL AND THEN REPUBLISHED BY ORDER OF THE SPEAKER OF THE HOUSE, SIR
WILLIAM WILLIAMS, WITH THE CONSENT OF COMMONS.  IN 1686, AFTER JAMES II
CAME TO THE THRONE, INFORMATIONS CHARGING LIBEL WERE FILED AGAINST
WILLIAMS IN KING'S BENCH.  DESPITE THE ARGUMENTS OF HIS ATTORNEY, SIR
ROBERT ATKYNS, THAT THE PUBLICATION WAS NECESSARY TO THE "COUNSELLING"
AND "ENQUIRING" FUNCTIONS OF PARLIAMENT, WILLIAMS' PLEA OF PRIVILEGE
WAS REJECTED AND HE WAS FINED 10,000 POUNDS.  SHORTLY AFTER WILLIAMS'
CONVICTION JAMES II WAS SENT INTO EXILE, AND A COMMITTEE WAS APPOINTED
BY THE HOUSE OF COMMONS TO REPORT UPON "SUCH THINGS AS ARE ABSOLUTELY
NECESSARY FOR SECURING THE LAWS AND LIBERTIES OF THE NATION."  9
DEBATES OF THE HOUSE OF COMMONS, COLL.  BY A. GREY, 1763, P. 37.  IN
REPORTING TO THE HOUSE, THE CHAIRMAN OF THE COMMITTEE STATED THAT THE
PROVISION FOR FREEDOM OF SPEECH AND DEBATE WAS INCLUDED "FOR THE SAKE
OF ONE . . . SIR WILLIAM WILLIAMS, WHO WAS PUNISHED OUT OF PARLIAMENT
FOR WHAT HE HAD DONE IN PARLIAMENT."  ID., AT 81.  FOLLOWING
CONSULTATION WITH THE HOUSE OF LORDS, THAT PROVISION WAS INCLUDED AS
PART OF THE ENGLISH BILL OF RIGHTS, AND THE JUDGMENT AGAINST WILLIAMS
WAS DECLARED BY COMMONS "ILLEGAL AND SUBVERSIVE OF THE FREEDOM OF
PARLIAMENT."  1 W. TOWNSEND, MEMOIRS OF THE HOUSE OF COMMONS 414 (2D
ED. 1844). 

ALTHOUGH THE ORIGINS OF THE SPEECH OR DEBATE CLAUSE IN ENGLAND CAN
THUS BE TRACED TO A CASE INVOLVING REPUBLICATION, THE COURT, CITING
STOCKDALE V. HANSARD, 9 AD.& E. 1, 112 ENG.REP.  1112 (K.B. 1839), SAYS
THAT "ENGLISH LEGISLATIVE PRIVILEGE WAS NOT VIEWED AS PROTECTING
REPUBLICATION OF AN OTHERWISE IMMUNE LIBEL ON THE FLOOR OF THE HOUSE." 
ANTE, AT 622.  THAT CONCLUSION REFLECTS AN ERRONEOUS READING OF
PRECEDENT.  STOCKDALE DID STATE THAT "IF THE CALUMNIOUS OR INFLAMMATORY
SPEECHES SHOULD BE REPORTED AND PUBLISHED, THE LAW WILL ATTACH
RESPONSIBILITY ON THE PUBLISHER."  ID., AT 114, 112 ENG.REP.,AT 1156. 
BUT STOCKDALE CONCERNED ONLY THE PUBLISHER'S LIABILITY, NOT THAT OF A
MEMBER OF PARLIAMENT; THUS, IT HAS LITTLE BEARING ON THE INSTANT CASE. 
FURTHERMORE, CONTRARY TO THE COURT'S ASSERTION, ANTE, AT 623-624, N.
14, EVEN THE NARROW RESULT OF STOCKDALE WAS REPUDIATED 30 YEARS LATER
IN WASON V. WALTER, L.R. 4 Q.B. 73 (1868), FOR REASONS STRIKINGLY
SIMILAR TO THOSE EXPRESSED BY JEFFERSON IN HIS PROTEST.  /1/  IN MY
VIEW, THEREFORE, THE ENGLISH PRECEDENT, IF RELEVANT AT ALL, SUPPORTS
SENATOR GRAVEL'S POSITION HERE. 

THUS, FROM THE STANDPOINT OF FUNCTION OR HISTORY, IT IS PLAIN THAT
SENATOR GRAVEL'S DISSEMINATION OF MATERIAL, PLACED BY HIM IN THE RECORD
OF A CONGRESSIONAL HEARING, IS ITSELF LEGISLATIVE ACTIVITY PROTECTED BY
THE PRIVILEGE OF SPEECH OR DEBATE.  WHETHER OR NOT THAT PRIVILEGE
PROTECTS THE PUBLISHER FROM PROSECUTION OR THE SENATOR FROM SENATORIAL
DISCIPLINE, IT CERTAINLY SHIELDS THE SENATOR FROM ANY GRAND JURY
INQUIRY ABOUT HIS PART IN THE PUBLICATION.  AS WE HELD IN UNITED STATES
V. JOHNSON, 383 U.S. 169 (1966), NEITHER A CONGRESSMAN, NOR HIS AIDES,
NOR THIRD PARTIES MAY BE MADE TO TESTIFY CONCERNING PRIVILEGED ACTS OR
THEIR MOTIVES.  THAT IMMUNITY, WHICH PROTECTS LEGISLATORS "FROM
DETERRENTS TO THE UNINHIBITED DISCHARGE OF THEIR LEGISLATIVE DUTY,"
TENNEY V. BRANDHOVE, 341 U.S. 367, 377 (1951), IS THE ESSENCE OF THE
CLAUSE, DESIGNED NOT FOR THE LEGISLATORS'  "PRIVATE INDULGENCE BUT FOR
THE PUBLIC GOOD."  ID., AT 377. 

THAT PRIVILEGE, MOREOVER, MAY NOT BE DEFEATED MERELY BECAUSE A COURT
FINDS THAT THE PUBLICATION WAS IRREGULAR OR THE MATERIAL IRRELEVANT TO
LEGISLATIVE BUSINESS.  LEGISLATIVE IMMUNITY SECURES "TO EVERY MEMBER
EXEMPTION FROM PROSECUTION, FOR EVERY THING SAID OR DONE BY HIM, AS A
REPRESENTATIVE, IN THE EXERCISE OF THE FUNCTIONS OF THE OFFICE . . .
WHETHER THE EXERCISE WAS REGULAR ACCORDING TO THE RULES OF THE HOUSE,
OR IRREGULAR AND AGAINST THEIR RULES."  COFFIN V. COFFIN, 4 MASS. 1, 27
(1808).  THUS, IF THE REPUBLICATION OF THIS COMMITTEE RECORD WAS
UNAUTHORIZED OR EVEN PROHIBITED BY THE SENATE RULES, IT IS UP TO THE
SENATE, NOT THE EXECUTIVE OR JUDICIARY, TO FASHION THE APPROPRIATE
SANCTION TO DISCIPLINE SENATOR GRAVEL. 

SIMILARLY, THE GOVERNMENT CANNOT STRIP SENATOR GRAVEL OF THE
IMMUNITY BY ASSERTING THAT HIS CONDUCT "DID NOT RELATE TO ANY PENDING
CONGRESSIONAL BUSINESS."  BRIEF FOR UNITED STATES 41.  THE SENATOR HAS
STATED THAT HIS HEARING ON THE PENTAGON PAPERS HAD A DIRECT BEARING ON
THE WORK OF HIS SUBCOMMITTEE ON BUILDINGS AND GROUNDS, BECAUSE OF THE
EFFECT OF THE VIETNAM WAR ON THE DOMESTIC ECONOMY AND THE LACK OF
SUFFICIENT FEDERAL FUNDS TO PROVIDE ADEQUATE PUBLIC FACILITIES.  IF IN
FACT THE SENATOR IS WRONG IN THIS CONTENTION, AND HIS CONDUCT AT THE
HEARING EXCEEDED THE SUBCOMMITTEE'S JURISDICTION, THEN AGAIN IT IS THE
SENATE THAT MUST CALL HIM TO TASK.  THIS COURT HAS PERMITTED
CONGRESSIONAL WITNESSES TO DEFEND THEIR REFUSAL TO ANSWER QUESTIONS ON
THE GROUND OF NONGERMANENESS.  WATKINS V. UNITED STATES, 354 U.S. 178
(1957).  HERE, HOWEVER, IT IS THE EXECUTIVE THAT SEEKS THE AID OF THE
JUDICIARY, NOT TO PROTECT INDIVIDUAL RIGHTS, BUT TO EXTEND ITS POWER OF
INQUIRY AND INTERROGATION INTO THE PRIVILEGED DOMAIN OF THE
LEGISLATURE.  IN MY VIEW THE COURT SHOULD REFUSE TO TURN THE FREEDOM OF
SPEECH OR DEBATE ON THE GOVERNMENT'S NOTIONS OF LEGISLATIVE PROPRIETY
AND RELEVANCE.  WE WOULD WEAKEN THE VERY STRUCTURE OF OUR
CONSTITUTIONAL SYSTEM BY BECOMING A PARTNER IN THIS ASSAULT ON THE
SEPARATION OF POWERS. 

WHETHER THE SPEECH OR DEBATE CLAUSE EXTENDS TO THE INFORMING
FUNCTION IS AN ISSUE WHOSE IMPORTANCE GOES BEYOND THE FATE OF A SINGLE
SENATOR OR CONGRESSMAN.  WHAT IS AT STAKE IS THE RIGHT OF AN ELECTED
REPRESENTATIVE TO INFORM, AND THE PUBLIC TO BE INFORMED, ABOUT MATTERS
RELATING DIRECTLY TO THE WORKINGS OF OUR GOVERNMENT.  THE DIALOGUE
BETWEEN CONGRESS AND PEOPLE HAS BEEN RECOGNIZED, FROM THE DAYS OF OUR
FOUNDING, AS ONE OF THE NECESSARY ELEMENTS OF A REPRESENTATIVE SYSTEM. 
WE SHOULD NOT RETREAT FROM THAT VIEW MERELY BECAUSE, IN THE COURSE OF
THAT DIALOGUE, INFORMATION MAY BE REVEALED THAT IS EMBARRASSING TO THE
OTHER BRANCHES OF GOVERNMENT OR VIOLATES THEIR NOTIONS OF NECESSARY
SECRECY.  A MEMBER OF CONGRESS WHO EXCEEDS THE BOUNDS OF PROPRIETY IN
PERFORMING THIS OFFICIAL TASK MAY BE CALLED TO ANSWER BY THE OTHER
MEMBERS OF HIS CHAMBER.  WE DO VIOLENCE TO THE FUNDAMENTAL CONCEPTS OF
PRIVILEGE, HOWEVER, WHEN WE SUBJECT THAT SAME CONDUCT TO JUDICIAL
SCRUTINY AT THE INSTANCE OF THE EXECUTIVE.  /2/  THE THREAT OF
"PROSECUTION BY AN UNFRIENDLY EXECUTIVE AND CONVICTION BY A HOSTILE
JUDICIARY," UNITED STATES V. JOHNSON, 383 U.S.,AT 179, THAT THE CLAUSE
WAS DESIGNED TO THIS VITAL FUNCTION.  THE NATION AS A WHOLE BENEFITS
FROM THE CONGRESSIONAL INVESTIGATION AND EXPOSURE OF OFFICIAL
CORRUPTION AND DECEIT.  IT LIKEWISE SUFFERS WHEN THAT EXPOSURE IS
REPLACED BY MUTED CRITICISM, CAREFULLY HUSHED BEHIND CONGRESSIONAL
WALLS. 

II 

EQUALLY TROUBLING IN TODAY'S DECISION IS THE COURT'S REFUSAL TO BAR
GRAND JURY INQUIRY INTO THE SOURCE OF DOCUMENTS RECEIVED BY THE SENATOR
AND PLACED BY HIM IN THE HEARING RECORD.  THE RECEIPT OF MATERIALS FOR
USE IN A CONGRESSIONAL HEARING IS AN INTEGRAL PART OF THE PREPARATION
FOR THAT LEGISLATIVE ACT.  IN UNITED STATES V. JOHNSON, SUPRA, THE
COURT ACKNOWLEDGED THE PRIVILEGED NATURE OF SUCH PREPARATORY STEPS,
HOLDING THAT THEY, LIKE THE ACT ITSELF AND ITS MOTIVES, MUST BE
SHIELDED FROM SCRUTINY BY THE EXECUTIVE AND JUDICIARY.  THAT HOLDING
MERELY RECOGNIZED THE OBVIOUS-- THAT SPEECHES, HEARINGS, AND THE
CASTING OF VOTES REQUIRE STUDY AND PLANNING IN ADVANCE.  IT WOULD
ACCOMPLISH LITTLE TOWARD THE GOAL OF LEGISLATIVE FREEDOM TO EXEMPT AN
OFFICIAL ACT FROM INTIMIDATING SCRUTINY, IF OTHER CONDUCT LEADING UP TO
THE ACT AND INTIMATELY RELATED TO IT COULD BE DETERRED BY A SIMILAR
THREAT.  THE REASONING THAT GUIDED THAT COURT IN JOHNSON IS NO LESS
PERSUASIVE TODAY, AND I SEE NO BASIS, NOR DOES THE COURT OFFER ANY, FOR
DEPARTING FROM IT HERE.  I WOULD HOLD THAT SENATOR GRAVEL'S RECEIPT OF
THE PENTAGON PAPERS, INCLUDING THE NAME OF THE PERSON FROM WHOM HE
RECEIVED THEM, MAY NOT BE THE SUBJECT OF INQUIRY BY THE GRAND JURY. 

I WOULD GO FURTHER, HOWEVER, AND ALSO EXCLUDE FROM GRAND JURY
INQUIRY ANY KNOWLEDGE THAT THE SENATOR OR HIS AIDES MIGHT HAVE
CONCERNING HOW THE SOURCE HIMSELF FIRST CAME TO POSSESS THE PAPERS. 
THIS IMMUNITY, IT SEEMS TO ME, IS ESSENTIAL TO THE PERFORMANCE OF THE
INFORMING FUNCTION.  CORRUPT AND DECEITFUL OFFICERS OF GOVERNMENT DO
NOT OFTEN POST FOR PUBLIC EXAMINATION THE EVIDENCE OF THEIR OWN
MISDEEDS.  THAT EVIDENCE MUST BE FERRETED OUT, AND OFTEN IS, BY FELLOW
EMPLOYEES AND SUBORDINATES.  THEIR WILLINGNESS TO REVEAL THAT
INFORMATION AND SPARK CONGRESSIONAL INQUIRY MAY WELL DEPEND ON
ASSURANCE FROM THEIR CONTACT IN CONGRESS THAT THEIR IDENTITIES AND
MEANS OF OBTAINING THE EVIDENCE WILL BE HELD IN STRICTEST CONFIDENCE. 
TO PERMIT THE GRAND JURY TO FRUSTRATE THAT EXPECTATION THROUGH AN
INQUIRY OF THE CONGRESSMAN AND HIS AIDES CAN ONLY DAMPEN THE FLOW OF
INFORMATION TO THE CONGRESS AND THUS TO THE AMERICAN PEOPLE.  THERE IS
A SIMILAR RISK, OF COURSE, WHEN THE MEMBER'S OWN HOUSE REQUIRES HIM TO
BREAK THE CONFIDENCE.  BUT THE DANGER, IT SEEMS TO ME, IS FAR LESS IF
THE MEMBER'S COLLEAGUES, AND NOT AN "UNFRIENDLY EXECUTIVE" OR "HOSTILE
JUDICIARY," ARE CHARGED WITH EVALUATING THE PROPRIETY OF HIS CONDUCT. 
IN ANY EVENT, ASSUMING THAT A CONGRESSMAN CAN BE REQUIRED TO REVEAL THE
SOURCES OF HIS INFORMATION AND THE METHODS USED TO OBTAIN THAT
INFORMATION, THAT POWER OF INQUIRY, AS REQUIRED BY THE CLAUSE, IS THAT
OF THE CONGRESSMAN'S HOUSE, AND OF THAT HOUSE ONLY. 

I RESPECTFULLY DISSENT. 

/1/  IN WASON THE PROPRIETOR OF THE LONDON TIMES WAS SUED FOR
PRINTING AN ACCOUNT OF A LIBELOUS DEBATE IN THE HOUSE OF LORDS.  THE
COURT AGREED WITH STOCKDALE THAT THE HOUSE DID NOT HAVE FINAL AUTHORITY
TO DETERMINE THE SCOPE OF ITS PRIVILEGES AND THUS COULD NOT CONFER
IMMUNITY ON ANY PUBLISHER MERELY BY ORDERING A DOCUMENT PRINTED AND
THEN DECLARING IT PRIVILEGED.  INDEED, THE WASON COURT GAVE ITS
"UNHESITATING AND UNQUALIFIED ADHESION" TO STOCKDALE ON THAT POINT. 
ID., AT 86.  THE ONLY ISSUE FOR THE COURT, THEREFORE, WAS WHETHER THE
PUBLICATION "IS, INDEPENDENTLY OF SUCH ORDER OF ASSERTION OF PRIVILEGE,
IN ITSELF PRIVILEGED AND LAWFUL."  ID., AT 87.  ON THAT ISSUE THE COURT
SEVERELY CRITICIZED THE REASONING OF EARLIER CASES, INCLUDING
STOCKDALE, STATING THAT TWO OF THE JUSTICES IN THAT CASE HAD EXPRESSED
A "VERY SHORTSIGHTED VIEW OF THE SUBJECT."  ID., AT 91.  THE COURT HELD
THAT SO LONG AS THE REPUBLICATION WAS ACCURATE AND IN GOOD FAITH, IT
COULD NOT BE THE BASIS OF A LIBEL ACTION; AND THE MEMBER HIMSELF WAS
PRIVILEGED TO PUBLISH HIS SPEECH "FOR THE INFORMATION OF HIS
CONSTITUENTS."  ID., AT 95.  RELYING, NOT ON THE PARLIAMENTARY PAPERS
ACT OF 1840, WHICH WAS ENACTED IN RESPONSE TO STOCKDALE, BUT ON THE
ANALOGY TO JUDICIAL REPORTS AND THE NEED FOR AN INFORMED PUBLIC, THE
COURT STATED:  "IT SEEMS TO US IMPOSSIBLE TO DOUBT THAT IT IS OF
PARAMOUNT PUBLIC AND NATIONAL IMPORTANCE THAT THE PROCEEDINGS OF THE
HOUSES OF PARLIAMENT SHALL BE COMMUNICATED TO THE PUBLIC, WHO HAVE THE
DEEPEST INTEREST IN KNOWING WHAT PASSES WITHIN THEIR WALLS, SEEING THAT
ON WHAT IS THERE SAID AND DONE, THE WELFARE OF THE COMMUNITY DEPENDS. 
WHERE WOULD BE OUR CONFIDENCE IN THE GOVERNMENT OF THE COUNTRY OR IN
THE LEGISLATURE BY WHICH OUR LAWS ARE FRAMED, AND TO WHOSE CHARGE THE
GREAT INTERESTS OF THE COUNTRY ARE COMMITTED,-- WHERE WOULD BE OUR
ATTACHMENT TO THE CONSTITUTION UNDER WHICH WE LIVE,-- IF THE
PROCEEDINGS OF THE GREAT COUNCIL OF THE REALM WERE SHROUDED IN SECRESY
AND CONCEALED FROM THE KNOWLEDGE OF THE NATION?  HOW COULD THE
COMMUNICATIONS BETWEEN THE REPRESENTATIVES OF THE PEOPLE AND THEIR
CONSTITUENTS, WHICH ARE SO ESSENTIAL TO THE WORKING OF THE
REPRESENTATIVE SYSTEM, BE USEFULLY CARRIED ON, IF THE CONSTITUENCIES
WERE KEPT IN IGNORANCE OF WHAT THEIR REPRESENTATIVES ARE DOING?  WHAT
WOULD BECOME OF THE RIGHT OF PETITIONING ON ALL MEASURES PENDING IN
PARLIAMENT, THE UNDOUBTED RIGHT OF THE SUBJECT, IF THE PEOPLE ARE TO BE
KEPT IN IGNORANCE OF WHAT IS PASSING IN EITHER HOUSE?  CAN ANY MAN
BRING HIMSELF TO DOUBT THAT THE PUBLICITY GIVEN IN MODERN TIMES TO WHAT
PASSES IN PARLIAMENT IS ESSENTIAL TO THE MAINTENANCE OF THE RELATIONS
SUBSISTING BETWEEN THE GOVERNMENT, THE LEGISLATURE, AND THE COUNTRY AT
LARGE?"  ID., AT 89. 

THE FACT THAT THE DEBATE WAS PUBLISHED IN VIOLATION OF A STANDING
ORDER OF PARLIAMENT WAS HELD TO BE IRRELEVANT.  "INDEPENDENTLY OF THE
ORDERS OF THE HOUSES, THERE IS NOTHING UNLAWFUL IN PUBLISHING REPORTS
OF PARLIAMENTARY PROCEEDINGS.  . . . (ANY PUBLICATION OF ITS DEBATES
MADE IN CONTRAVENTION OF ITS ORDERS WOULD BE A MATTER BETWEEN THE HOUSE
AND THE PUBLISHER."  ID., AT 95. 

WHETHER WASON WAS BASED ON PARLIAMENTARY PRIVILEGE OR ON AN ANALOGY
TO THE PUBLICATION OF JUDICIAL PROCEEDINGS IS UNIMPORTANT.  WHAT IS
IMPORTANT TO THE INSTANT LITIGATION IS THAT WASON FIRMLY REJECTED AN
IMPLICATION IN STOCKDALE THAT THE INFORMING FUNCTION WAS NOT AMONG THE
LEGISLATIVE ACTIVITIES THAT A MEMBER OF PARLIAMENT WAS PRIVILEGED TO
PERFORM.  INDEED, THAT SAME CONCLUSION WAS REACHED BY SIR GILBERT
CAMPION, A NOTED SCHOLAR, IN HIS MEMORANDUM TO THE HOUSE OF COMMONS'
SELECT COMMITTEE ON THE OFFICIAL SECRETS ACTS.  AFTER REVIEWING THE
REPUBLICATION CASES THROUGH WASON, THE MEMORANDUM CONCLUDED:  "IF . . .
A MEMBER CIRCULATED AMONG HIS CONSTITUENTS A SPEECH MADE BY HIM IN
PARLIAMENT IN WHICH HE HAD DISCLOSED INFORMATION (OTHERWISE SUBJECT TO
THE OFFICIAL SECRETS ACTS), IT MIGHT BE HELD ON THE ANALOGY OF THE
PRINCIPLES WHICH HAVE BEEN SAID TO APPLY TO PROSECUTIONS FOR LIBEL THAT
HE COULD NOT BE PROCEEDED AGAINST FOR DISCLOSING IT TO HIS
CONSTITUENTS, UNLESS, OF COURSE, THE SPEECH HAD BEEN MADE IN A SECRET
SESSION.  EVEN IF THE SUGGESTED ANALOGY IS NOT ADMITTED, IT WOULD BE
REPUGNANT TO COMMON SENSE TO HOLD THAT THOUGH THE ORIGINAL DISCLOSURE
IN THE HOUSE WAS PROTECTED BY PARLIAMENTARY PRIVILEGE, THE CIRCULATION
OF THE SPEECH AMONG THE MEMBER'S CONSTITUENTS WAS NOT."  MINUTES OF
EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE ON THE OFFICIAL SECRETS ACTS
29 (1939). 

/2/  DIFFERENT CONSIDERATIONS MAY APPLY, OF COURSE, WHERE THE
REPUBLICATION IS ATTACKED, NOT BY THE EXECUTIVE, BUT BY PRIVATE PERSONS
SEEKING JUDICIAL REDRESS FOR AN ALLEGED INVASION OF THEIR
CONSTITUTIONAL RIGHTS. 

ROBERT J. REINSTEIN AND CHARLES L. FISHMAN ARGUED THE CAUSE FOR
PETITIONER IN NO. 71-1017 AND FOR RESPONDENT IN NO. 71-1026.  WITH THEM
ON THE BRIEFS WERE HARVEY A. SILVERGLATE AND ALAN M. DERSHOWITZ. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES IN
BOTH CASES.  WITH HIM ON THE BRIEFS WERE ASSISTANT ATTORNEY GENERAL
MARDIAN, JEROME M. FEIT, ALLAN A. TUTTLE, AND ROBERT L. KEUCH. 

SAM J. ERVIN, JR., AND WILLIAM B. SAXBE ARGUED THE CAUSE FOR THE
SENATE OF THE UNITED STATES AS AMICUS CURIAE.  WITH THEM ON THE BRIEF
WERE JAMES O. EASTLAND, JOHN O. PASTORE, HERMAN E. TALMADGE, NORRIS
COTTON, PETER H. DOMINICK, CHARLES MCC.  MATHIAS, JR., PHILIP B.
KURLAND, AND EDWARD I. ROTHSCHILD. 

BRIEFS OF AMICI CURIAE WERE FILED BY MELVIN L. WULF AND SANFORD JAY
ROSEN FOR THE AMERICAN CIVIL LIBERTIES UNION; BY FRANK B. FREDERICK AND
HENRY PAUL MONAGHAN FOR THE UNITARIAN UNIVERSALIST ASSOCIATION; AND BY
MORTON STAVIS AND DORIS PETERSON FOR LEONARD S. RODBERG. 
..END :







BRANZBURG V. HAYES, 408 U.S. 665 


       BRANZBURG V. HAYES ET AL., JUDGES

        CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY

        NO. 70-85.  ARGUED FEBRUARY 23, 1972-- DECIDED JUNE 29,
1972

     /0/ 


THE FIRST AMENDMENT DOES NOT RELIEVE A NEWSPAPER REPORTER OF THE OF
THE OBLIGATION THAT ALL CITIZENS HAVE TO RESPOND TO A GRAND JURY
SUBPOENA AND ANSWER QUESTIONS RELEVANT TO A CRIMINAL INVESTIGATION, AND
THEREFORE THE AMENDMENT DOES NOT AFFORD HIM A CONSTITUTIONAL
TESTIMONIAL PRIVILEGE FOR AN AGREEMENT HE MAKES TO CONCEAL FACTS
RELEVANT TO A GRAND JURY'S INVESTIGATION OF A CRIME OR TO CONCEAL THE
CRIMINAL CONDUCT OF HIS SOURCE OR EVIDENCE THEREOF.  PP. 679-709. 

NO. 70-85, 461 S.W.2D 345, AND KENTUCKY COURT OF APPEALS JUDGMENT IN
UNREPORTED CASE OF BRANZBURG V. MEIGS; AND NO. 70-94, 358 MASS. 604,
266 N.E.2D 297, AFFIRMED; NO. 70-57, 434 F.2D 1081, REVERSED. 

WHITE, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER, C.J.,
AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  POWELL, J., FILED A
CONCURRING OPINION, POST, P. 709.  DOUGLAS, J., FILED A DISSENTING
OPINION, POST, P. 711.  STEWART, J., FILED A DISSENTING OPINION, IN
WHICH BRENNAN AND MARSHALL, JJ. JOINED, POST, P. 725. 

OPINION OF THE COURT BY MR. JUSTICE WHITE, ANNOUNCED BY THE CHIEF
JUSTICE. 

THE ISSUE IN THESE CASES IS WHETHER REQUIRING NEWSMEN TO APPEAR AND
TESTIFY BEFORE STATE OR FEDERAL GRAND JURIES ABRIDGES THE FREEDOM OF
SPEECH AND PRESS GUARANTEED BY THE FIRST AMENDMENT.  WE HOLD THAT IT
DOES NOT. 

        I 

THE WRIT OF CERTIORARI IN NO. 70-85, BRANZBURG V. HAYES AND MEIGS,
BRINGS BEFORE US TWO JUDGMENTS OF THE KENTUCKY COURT OF APPEALS, BOTH
INVOLVING PETITIONER BRANZBURG, A STAFF REPORTER FOR THE COURIER
JOURNAL, A DAILY NEWSPAPER PUBLISHED IN LOUISVILLE, KENTUCKY. 

ON NOVEMBER 15, 1969, THE COURIER-JOURNAL CARRIED A STORY UNDER
PETITIONER'S BY-LINE DESCRIBING IN DETAIL HIS OBSERVATIONS OF TWO YOUNG
RESIDENTS OF JEFFERSON COUNTY SYNTHESIZING HASHISH FROM MARIHUANA, AN
ACTIVITY WHICH, THEY ASSERTED, EARNED THEM ABOUT $5,000 IN THREE
WEEKS.  THE ARTICLE INCLUDED A PHOTOGRAPH OF A PAIR OF HANDS WORKING
ABOVE A LABORATORY TABLE ON WHICH WAS A SUBSTANCE IDENTIFIED BY THE
CAPTION AS HASHISH.  THE ARTICLE STATED THAT PETITIONER HAD PROMISED
NOT TO REVEAL THE IDENTITY OF THE TWO HASHISH MAKERS.  /1/  PETITIONER
WAS SHORTLY SUBPOENAED BY THE JEFFERSON COUNTY GRAND JURY; HE APPEARED,
BUT REFUSED TO IDENTIFY THE INDIVIDUALS HE HAD SEEN POSSESSING
MARIHUANA OR THE PERSONS HE HAD SEEM MAKING HASHISH FROM MARIHUANA. 
/2/  A STATE TRIAL COURT JUDGE /3/  ORDERED PETITIONER TO ANSWER THESE
QUESTIONS AND REJECTED HIS CONTENTION THAT THE KENTUCKY REPORTERS'
PRIVILEGE STATUTE, KY. REV. STAT. SEC. 421.100 (1962), /4/  THE FIRST
AMENDMENT OF THE UNITED STATES CONSTITUTION, OR SECS. 1, 2, AND 8 OF
THE KENTUCKY CONSTITUTION AUTHORIZED HIS REFUSAL TO ANSWER.  PETITIONER
THEN SOUGHT PROHIBITION AND MANDAMUS IN THE KENTUCKY COURT OF APPEALS
ON THE SAME GROUNDS, BUT THE COURT OF APPEALS DENIED THE PETITION. 
BRANZBURG V. POUND, 461 S.W.2D 345 (1970), AS MODIFIED ON DENIAL OF
REHEARING, JAN. 22, 1971.  IT HELD THAT PETITIONER HAD ABANDONED HIS
FIRST AMENDMENT ARGUMENT IN A SUPPLEMENTAL MEMORANDUM HE HAD FILED AND
TACITLY REJECTED HIS ARGUMENT BASED ON THE KENTUCKY CONSTITUTION.  IT
ALSO CONSTRUED KY. REV. STAT. SEC. 421.100 AS AFFORDING A NEWSMAN THE
PRIVILEGE OF REFUSING TO DIVULGE THE IDENTITY OF AN INFORMANT WHO
SUPPLIED HIM WITH INFORMATION, BUT HELD THAT THE STATUTE DID NOT PERMIT
A REPORTER TO REFUSE TO TESTIFY ABOUT EVENTS HE HAD OBSERVED
PERSONALLY, INCLUDING THE IDENTITIES OF THOSE PERSONS HE HAD OBSERVED. 

THE SECOND CASE INVOLVING PETITIONER BRANZBURG AROSE OUT OF HIS
LATER STORY PUBLISHED ON JANUARY 10, 1971, WHICH DESCRIBED IN DETAIL
THE USE OF DRUGS IN FRANKFORT, KENTUCKY.  THE ARTICLE REPORTED THAT IN
ORDER TO PROVIDE A COMPREHENSIVE SURVEY OF THE "DRUG SCENE" IN
FRANKFORT, PETITIONER HAD "SPENT TWO WEEKS INTERVIEWING SEVERAL DOZEN
DRUG USERS IN THE CAPITAL CITY" AND HAD SEEN SOME OF THEM SMOKING
MARIHUANA.  A NUMBER OF CONVERSATIONS WITH AND OBSERVATIONS OF SEVERAL
UNNAMED DRUG USERS WERE RECOUNTED.  SUBPOENAED TO APPEAR BEFORE A
FRANKLIN COUNTY GRAND JURY "TO TESTIFY IN THE MATTER OF VIOLATION OF
STATUTES CONCERNING USE AND SALE OF DRUGS," PETITIONER BRANZBURG MOVED
TO QUASH THE SUMMONS; /5/  THE MOTION WAS DENIED, ALTHOUGH AN ORDER WAS
ISSUED PROTECTING BRANZBURG FROM REVEALING "CONFIDENTIAL ASSOCIATIONS,
SOURCES OR INFORMATION" BUT REQUIRING THAT HE "ANSWER ANY QUESTIONS
WHICH CONCERN OR PERTAIN TO ANY CRIMINAL ACT, THE COMMISSION OF WHICH
WAS ACTUALLY OBSERVED BY (HIM)."  PRIOR TO THE TIME HE WAS SLATED TO
APPEAR BEFORE THE GRAND JURY, PETITIONER SOUGHT MANDAMUS AND
PROHIBITION FROM THE KENTUCKY COURT OF APPEALS, ARGUING THAT IF HE WERE
FORCED TO GO BEFORE THE GRAND JURY OR TO ANSWER QUESTIONS REGARDING THE
IDENTITY OF INFORMANTS OR DISCLOSE INFORMATION GIVEN TO HIM IN
CONFIDENCE, HIS EFFECTIVENESS AS A REPORTER WOULD BE GREATLY DAMAGED. 
THE COURT OF APPEALS ONCE AGAIN DENIED THE REQUESTED WRITS, REAFFIRMING
ITS CONSTRUCTION OF KY. REV. STAT. SEC. 421.100, AND REJECTING
PETITIONER'S CLAIM OF A FIRST AMENDMENT PRIVILEGE.  IT DISTINGUISHED
CALDWELL V. UNITED STATES, 434 F.2D 1081 (CA9 1970), AND IT ALSO
ANNOUNCED ITS "MISGIVINGS" ABOUT THAT DECISION, ASSERTING THAT IT
REPRESENTED "A DRASTIC DEPARTURE FROM THE GENERALLY RECOGNIZED RULE
THAT THE SOURCES OF INFORMATION OF A NEWSPAPER REPORTER ARE NOT
PRIVILEGED UNDER THE FIRST AMENDMENT."  IT CHARACTERIZED PETITIONER'S
FEAR THAT HIS ABILITY TO OBTAIN NEWS WOULD BE DESTROYED AS "SO TENUOUS
THAT IT DOES NOT, IN THE OPINION OF THIS COURT, PRESENT AN ISSUE OF
ABRIDGEMENT OF THE FREEDOM OF THE PRESS WITHIN THE MEANING OF THAT TERM
AS USED IN THE CONSTITUTION OF THE UNITED STATES." 

PETITIONER SOUGHT A WRIT OF CERTIORARI TO REVIEW BOTH JUDGMENTS OF
THE KENTUCKY COURT OF APPEALS, AND WE GRANTED THE WRIT.  /6/  402 U.S.
942 (1971). 

IN RE PAPPAS, NO. 70-94, ORIGINATED WHEN PETITIONER PAPPAS, A
TELEVISION NEWSMAN-PHOTOGRAPHER WORKING OUT OF THE PROVIDENCE, RHODE
ISLAND, OFFICE OF A NEW BEDFORD, MASSACHUSETTS, TELEVISION STATION, WAS
CALLED TO NEW BEDFORD ON JULY 30, 1970, TO REPORT ON CIVIL DISORDERS
THERE WHICH INVOLVED FIRES AND OTHER TURMOIL.  HE INTENDED TO COVER A
BLACK PANTHER NEWS CONFERENCE AT THAT GROUP'S HEADQUARTERS IN A BOARDED
UP STORE.  PETITIONER FOUND THE STREETS AROUND THE STORE BARRICADED,
BUT HE ULTIMATELY GAINED ENTRANCE TO THE AREA AND RECORDED AND
PHOTOGRAPHED A PREPARED STATEMENT READ BY ONE OF THE BLACK PANTHER
LEADERS AT ABOUT 3 P.M.  /7/  HE THEN ASKED FOR AND RECEIVED PERMISSION
TO RE-ENTER THE AREA.  RETURNING AT ABOUT 9 O'CLOCK, HE WAS ALLOWED TO
ENTER AND REMAIN INSIDE PANTHER HEADQUARTERS.  AS A CONDITION OF ENTRY,
PAPPAS AGREED NOT TO DISCLOSE ANYTHING HE SAW OR HEARD INSIDE THE STORE
EXCEPT AN ANTICIPATED POLICE RAID, WHICH PAPPAS, "ON HIS OWN," WAS FREE
TO PHOTOGRAPH AND REPORT AS HE WISHED.  PAPPAS STAYED INSIDE THE
HEADQUARTERS FOR ABOUT THREE HOURS, BUT THERE WAS NO POLICE RAID, AND
PETITIONER WROTE NO STORY AND DID NOT OTHERWISE REVEAL WHAT HAD
OCCURRED IN THE STORE WHILE HE WAS THERE.  TWO MONTHS LATER, PETITIONER
WAS SUMMONED BEFORE THE BRISTOL COUNTY GRAND JURY AND APPEARED,
ANSWERED QUESTIONS AS TO HIS NAME, ADDRESS, EMPLOYMENT, AND WHAT HE HAD
SEEN AND HEARD OUTSIDE PANTHER HEADQUARTERS, BUT REFUSED TO ANSWER ANY
QUESTIONS ABOUT WHAT HAD TAKEN PLACE INSIDE HEADQUARTERS WHILE HE WAS
THERE, CLAIMING THAT THE FIRST AMENDMENT AFFORDED HIM A PRIVILEGE TO
PROTECT CONFIDENTIAL INFORMANTS AND THEIR INFORMATION.  A SECOND
SUMMONS WAS THEN SERVED UPON HIM, AGAIN DIRECTING HIM TO APPEAR BEFORE
THE GRAND JURY AND "TO GIVE SUCH EVIDENCE AS HE KNOWS RELATING TO ANY
MATTERS WHICH MAY BE INQUIRED OF ON BEHALF OF THE COMMONWEALTH BEFORE .
. . THE GRAND JURY."  HIS MOTION TO QUASH ON FIRST AMENDMENT AND OTHER
GROUNDS WAS DENIED BY THE TRIAL JUDGE WHO, NOTING THE ABSENCE OF A
STATUTORY NEWSMAN'S PRIVILEGE IN MASSACHUSETTS, RULED THAT PETITIONER
HAD NO CONSTITUTIONAL PRIVILEGE TO REFUSE TO DIVULGE TO THE GRAND JURY
WHAT HE HAD SEEN AND HEARD, INCLUDING THE IDENTITY OF PERSONS HE HAD
OBSERVED.  THE CASE WAS REPORTED FOR DECISION TO THE SUPREME JUDICIAL
COURT OF MASSACHUSETTS.  /8/  THE RECORD THERE DID NOT INCLUDE A
TRANSCRIPT OF THE HEARING ON THE MOTION TO QUASH, NOR DID IT REVEAL THE
SPECIFIC QUESTIONS PETITIONER HAD REFUSED TO ANSWER, THE EXPECTED
NATURE OF HIS TESTIMONY, THE NATURE OF THE GRAND JURY INVESTIGATION, OR
THE LIKELIHOOD OF THE GRAND JURY'S SECURING THE INFORMATION IT SOUGHT
FROM PETITIONER BY OTHER MEANS.  /9/  THE SUPREME JUDICIAL COURT,
HOWEVER, TOOK "JUDICIAL NOTICE THAT IN JULY, 1970, THERE WERE SERIOUS
CIVIL DISORDERS IN NEW BEDFORD, WHICH INVOLVED STREET BARRICADES,
EXCLUSION OF THE PUBLIC FROM CERTAIN STREETS, FIRES, AND SIMILAR
TURMOIL.  WE WERE TOLD AT THE ARGUMENTS THAT THERE WAS GUNFIRE IN
CERTAIN STREETS.  WE ASSUME THAT THE GRAND JURY INVESTIGATION WAS AN
APPROPRIATE EFFORT TO DISCOVER AND INDICT THOSE RESPONSIBLE FOR
CRIMINAL ACTS."  358 MASS. 604, 607, 266 N.E.2D 297, 299 (1971).  THE
COURT THEN REAFFIRMED PRIOR MASSACHUSETTS HOLDINGS THAT TESTIMONIAL
PRIVILEGES WERE "EXCEPTIONAL" AND "LIMITED," STATING THAT "(THE
PRINCIPLE THAT THE PUBLIC 'HAS A RIGHT TO EVERY MAN'S EVIDENCE'" HAD
USUALLY BEEN PREFERRED, IN THE COMMONWEALTH, TO COUNTERVAILING
INTERESTS.  IBID.  THE COURT REJECTED THE HOLDING OF THE NINTH CIRCUIT
IN CALDWELL V. UNITED STATES, SUPRA, AND "ADHERED) TO THE VIEW THAT
THERE EXISTS NO CONSTITUTIONAL NEWSMAN'S PRIVILEGE, EITHER QUALIFIED OR
ABSOLUTE, TO REFUSE TO APPEAR AND TESTIFY BEFORE A COURT OR GRAND
JURY."  /10/  358 MASS.,AT 612, 266 N.E.2D, AT 302-303.  ANY ADVERSE
EFFECT UPON THE FREE DISSEMINATION OF NEWS BY VIRTUE OF PETITIONER'S
BEING CALLED TO TESTIFY WAS DEEMED TO BE ONLY "INDIRECT, THEORETICAL,
AND UNCERTAIN."  ID., AT 612, 266 N.E.2D, AT 302.  THE COURT CONCLUDED
THAT "(THE OBLIGATION OF NEWSMEN . . . IS THAT OF EVERY CITIZEN . . .
TO APPEAR WHEN SUMMONED, WITH RELEVANT WRITTEN OR OTHER MATERIAL WHEN
REQUIRED, AND TO ANSWER RELEVANT AND REASONABLE INQUIRIES."  ID., AT
612, 266 N.E.2D, AT 303.  THE COURT NEVERTHELESS NOTED THAT GRAND
JURIES WERE SUBJECT TO SUPERVISION BY THE PRESIDING JUDGE, WHO HAD THE
DUTY "TO PREVENT OPPRESSIVE, UNNECESSARY, IRRELEVANT, AND OTHER
IMPROPER INQUIRY AND INVESTIGATION," IBID., TO INSURE THAT A WITNESS'
FIFTH AMENDMENT RIGHTS WERE NOT INFRINGED, AND TO ASSESS THE PROPRIETY,
NECESSITY, AND PERTINENCE OF THE PROBABLE TESTIMONY TO THE
INVESTIGATION IN PROGRESS.  /11/  THE BURDEN WAS DEEMED TO BE ON THE
WITNESS TO ESTABLISH THE IMPROPRIETY OF THE SUMMONS OR THE QUESTIONS
ASKED.  THE DENIAL OF THE MOTION TO QUASH WAS AFFIRMED AND WE GRANTED A
WRIT OF CERTIORARI TO PETITIONER PAPPAS.  402 U.S. 942 (1971). 

UNITED STATES V. CALDWELL, NO. 70-57, AROSE FROM SUBPOENAS ISSUED BY
A FEDERAL GRAND JURY IN THE NORTHERN DISTRICT OF CALIFORNIA TO
RESPONDENT EARL CALDWELL, A REPORTER FOR THE NEW YORK TIMES ASSIGNED TO
COVER THE BLACK PANTHER PARTY AND OTHER BLACK MILITANT GROUPS.  A
SUBPOENA DUCES TECUM WAS SERVED ON RESPONDENT ON FEBRUARY 2, 1970,
ORDERING HIM TO APPEAR BEFORE THE GRAND JURY TO TESTIFY AND TO BRING
WITH HIM NOTES AND TAPE RECORDINGS OF INTERVIEWS GIVEN HIM FOR
PUBLICATION BY OFFICERS AND SPOKESMEN OF THE BLACK PANTHER PARTY
CONCERNING THE AIMS, PURPOSES, AND ACTIVITIES OF THAT ORGANIZATION. 
/12/  RESPONDENT OBJECTED TO THE SCOPE OF THIS SUBPOENA, AND AN
AGREEMENT BETWEEN HIS COUNSEL AND THE GOVERNMENT ATTORNEYS RESULTED IN
A CONTINUANCE.  A SECOND SUBPOENA, SERVED ON MARCH 16, OMITTED THE
DOCUMENTARY REQUIREMENT AND SIMPLY ORDERED CALDWELL "TO APPEAR . . . TO
TESTIFY BEFORE THE GRAND JURY."  RESPONDENT AND HIS EMPLOYER, THE NEW
YORK TIMES, /13/  MOVED TO QUASH ON THE GROUND THAT THE UNLIMITED
BREADTH OF THE SUBPOENAS AND THE FACT THAT CALDWELL WOULD HAVE TO
APPEAR IN SECRET BEFORE THE GRAND JURY WOULD DESTROY HIS WORKING
RELATIONSHIP WITH THE BLACK PANTHER PARTY AND "SUPPRESS VITAL FIRST
AMENDMENT FREEDOMS . . . BY DRIVING A WEDGE OF DISTRUST AND SILENCE
BETWEEN THE NEWS MEDIA AND THE MILITANTS."  APP. 7.  RESPONDENT ARGUED
THAT "SO DRASTIC AN INCURSION UPON FIRST AMENDMENT FREEDOMS" SHOULD NOT
BE PERMITTED "IN THE ABSENCE OF A COMPELLING GOVERNMENTAL INTEREST--
NOT SHOWN HERE-- IN REQUIRING MR. CALDWELL'S APPEARANCE BEFORE THE
GRAND JURY."  IBID.  THE MOTION WAS SUPPORTED BY AMICUS CURIAE
MEMORANDA FROM OTHER PUBLISHING CONCERNS AND BY AFFIDAVITS FROM NEWSMEN
ASSERTING THE UNFAVORABLE IMPACT ON NEWS SOURCES OF REQUIRING REPORTERS
TO APPEAR BEFORE GRAND JURIES.  THE GOVERNMENT FILED THREE MEMORANDA IN
OPPOSITION TO THE MOTION TO QUASH, EACH SUPPORTED BY AFFIDAVITS.  THESE
DOCUMENTS STATED THAT THE GRAND JURY WAS INVESTIGATING, AMONG OTHER
THINGS, POSSIBLE VIOLATIONS OF A NUMBER OF CRIMINAL STATUTES, INCLUDING
18 U.S.C. 871 (THREATS AGAINST THE PRESIDENT), 18 U.S.C. 1751
(ASSASSINATION, ATTEMPTS TO ASSASSINATE, CONSPIRACY TO ASSASSINATE THE
PRESIDENT), 18 U.S.C. 231 (CIVIL DISORDERS), 18 U.S.C. 2101 (INTERSTATE
TRAVEL TO INCITE A RIOT), AND 18 U.S.C. 1341 (MAIL FRAUDS AND
SWINDLES).  IT WAS RECITED THAT ON NOVEMBER 15, 1969, AN OFFICER OF THE
BLACK PANTHER PARTY MADE A PUBLICLY TELEVISED SPEECH IN WHICH HE HAD
DECLARED THAT "(WE WILL KILL RICHARD NIXON" AND THAT THIS THREAT HAD
BEEN REPEATED IN THREE SUBSEQUENT ISSUES OF THE PARTY NEWSPAPER.  APP.
66, 77.  ALSO REFERRED TO WERE VARIOUS WRITINGS BY CALDWELL ABOUT THE
BLACK PANTHER PARTY, INCLUDING AN ARTICLE PUBLISHED IN THE NEW YORK
TIMES ON DECEMBER 14, 1969, STATING THAT "(IN THEIR ROLE AS THE
VANGUARD IN A REVOLUTIONARY STRUGGLE THE PANTHERS HAVE PICKED UP GUNS,"
AND QUOTING THE CHIEF OF STAFF OF THE PARTY AS DECLARING:  "WE ADVOCATE
THE VERY DIRECT OVERTHROW OF THE GOVERNMENT BY WAY OF FORCE AND
VIOLENCE.  BY PICKING UP GUNS AND MOVING AGAINST IT BECAUSE WE
RECOGNIZE IT AS BEING OPPRESSIVE AND IN RECOGNIZING THAT WE KNOW THAT
THE ONLY SOLUTION TO IT IS ARMED STRUGGLE (SIC)."  APP. 62.  THE
GOVERNMENT ALSO STATED THAT THE CHIEF OF STAFF OF THE PARTY HAD BEEN
INDICTED BY THE GRAND JURY ON DECEMBER 3, 1969, FOR UTTERING THREATS
AGAINST THE LIFE OF THE PRESIDENT IN VIOLATION OF 18 U.S.C. 871 AND
THAT VARIOUS EFFORTS HAD BEEN MADE TO SECURE EVIDENCE OF CRIMES UNDER
INVESTIGATION THROUGH THE IMMUNIZATION OF PERSONS ALLEGEDLY ASSOCIATED
WITH THE BLACK PANTHER PARTY.     ON APRIL 6, THE DISTRICT COURT DENIED
THE MOTION TO QUASH, APPLICATION OF CALDWELL, 311 F.SUPP.  358 (ND CAL.
1970), ON THE GROUND THAT "EVERY PERSON WITHIN THE JURISDICTION OF THE
GOVERNMENT" IS BOUND TO TESTIFY UPON BEING PROPERLY SUMMONED.  ID., AT
360 (EMPHASIS IN ORGINAL).  NEVERTHELESS, THE COURT ACCEPTED
RESPONDENT'S FIRST AMENDMENT ARGUMENTS TO THE EXTENT OF ISSUING A
PROTECTIVE ORDER PROVIDING THAT ALTHOUGH RESPONDENT HAD TO DIVULGE
WHATEVER INFORMATION HAD BEEN GIVEN TO HIM FOR PUBLICATION, HE "SHALL
NOT BE REQUIRED TO REVEAL CONFIDENTIAL ASSOCIATIONS, SOURCES OR
INFORMATION RECEIVED, DEVELOPED OR MAINTAINED BY HIM AS A PROFESSIONAL
JOURNALIST IN THE COURSE OF HIS EFFORTS TO GATHER NEWS FOR
DISSEMINATION TO THE PUBLIC THROUGH THE PRESS OR OTHER NEWS MEDIA." 
THE COURT HELD THAT THE FIRST AMENDMENT AFFORDED RESPONDENT A PRIVILEGE
TO REFUSE DISCLOSURE OF SUCH CONFIDENTIAL INFORMATION UNTIL THERE HAD
BEEN "A SHOWING BY THE GOVERNMENT OF A COMPELLING AND OVERRIDING
NATIONAL INTEREST IN REQUIRING MR. CALDWELL'S TESTIMONY WHICH CANNOT BE
SERVED BY ANY ALTERNATIVE MEANS."  ID., AT 362. 

SUBSEQUENTLY, /14/ THE TERM OF THE GRAND JURY EXPIRED, A NEW GRAND
JURY WAS CONVENED, AND A NEW SUBPOENA AD TESTIFICANDUM WAS ISSUED AND
SERVED ON MAY 22, 1970.  A NEW MOTION TO QUASH BY RESPONDENT AND
MEMORANDUM IN OPPOSITION BY THE GOVERNMENT WERE FILED, AND, BY
STIPULATION OF THE PARTIES, THE MOTION WAS SUBMITTED ON THE PRIOR
RECORD.  THE COURT DENIED THE MOTION TO QUASH, REPEATING THE PROTECTIVE
PROVISIONS IN ITS PRIOR ORDER BUT THIS TIME DIRECTING CALDWELL TO
APPEAR BEFORE THE GRAND JURY PURSUANT TO THE MAY 22 SUBPOENA. 
RESPONDENT REFUSED TO APPEAR BEFORE THE GRAND JURY, AND THE COURT
ISSUED AN ORDER TO SHOW CAUSE WHY HE SHOULD NOT BE HELD IN CONTEMPT. 
UPON HIS FURTHER REFUSAL TO GO BEFORE THE GRAND JURY, RESPONDENT WAS
ORDERED COMMITTED FOR CONTEMPT UNTIL SUCH TIME AS HE COMPLIED WITH THE
COURT'S ORDER OR UNTIL THE EXPIRATION OF THE TERM OF THE GRAND JURY. 

RESPONDENT CALDWELL APPEALED THE COMTEMPT ORDER, /15/  AND THE COURT
OF APPEALS REVERSED.  CALDWELL V. UNITED STATES, 434 F.2D 1081 (CA9
1970).  VIEWING THE ISSUE BEFORE IT AS WHETHER CALDWELL WAS REQUIRED TO
APPEAR BEFORE THE GRAND JURY AT ALL, RATHER THAN THE SCOPE OF
PERMISSIBLE INTERROGATION, THE COURT FIRST DETERMINED THAT THE FIRST
AMENDMENT PROVIDED A QUALIFIED TESTIMONIAL PRIVILEGE TO NEWSMEN; IN ITS
VIEW, REQUIRING A REPORTER LIKE CALDWELL TO TESTIFY WOULD DETER HIS
INFORMANTS FROM COMMUNICATING WITH HIM IN THE FUTURE AND WOULD CAUSE
HIM TO CENSOR HIS WRITINGS IN AN EFFORT TO AVOID BEING SUBPOENAED. 
ABSENT COMPELLING REASONS FOR REQUIRING HIS TESTIMONY, HE WAS HELD
PRIVILEGED TO WITHHOLD IT. THE COURT ALSO HELD, FOR SIMILAR FIRST
AMENDMENT REASONS, THAT, ABSENT SOME SPECIAL SHOWING OF NECESSITY BY
THE GOVERNMENT, ATTENDANCE BY CALDWELL AT A SECRET MEETING OF THE GRAND
JURY WAS SOMETHING HE WAS PRIVILEGED TO REFUSE BECAUSE OF THE POTENTIAL
IMPACT OF SUCH AN APPEARANCE ON THE FLOW OF NEWS TO THE PUBLIC.  WE
GRANTED THE UNITED STATES' PETITION FOR CERTIORARI.  /16/  402 U.S. 942
(1971). 

        II 

PETITIONERS BRANZBURG AND PAPPAS AND RESPONDENT CALDWELL PRESS FIRST
AMENDMENT CLAIMS THAT MAY BE SIMPLY PUT:  THAT TO GATHER NEWS IT IS
OFTEN NECESSARY TO AGREE EITHER NOT TO IDENTIFY THE SOURCE OF
INFORMATION PUBLISHED OR TO PUBLISH ONLY PART OF THE FACTS REVEALED, OR
BOTH; THAT IF THE REPORTER IS NEVERTHELESS FORCED TO REVEAL THESE
CONFIDENCES TO A GRAND JURY, THE SOURCE SO IDENTIFIED AND OTHER
CONFIDENTIAL SOURCES OF OTHER REPORTERS WILL BE MEASURABLY DETERRED
FROM FURNISHING PUBLISHABLE INFORMATION, ALL TO THE DETRIMENT OF THE
FREE FLOW OF INFORMATION PROTECTED BY THE FIRST AMENDMENT.  ALTHOUGH
THE NEWSMEN IN THESE CASES DO NOT CLAIM AN ABSOLUTE PRIVILEGE AGAINST
OFFICIAL INTERROGATION IN ALL CIRCUMSTANCES, THEY ASSERT THAT THE
REPORTER SHOULD NOT BE FORCED EITHER TO APPEAR OR TO TESTIFY BEFORE A
GRAND JURY OR AT TRIAL UNTIL AND UNLESS SUFFICIENT GROUNDS ARE SHOWN
FOR BELIEVING THAT THE REPORTER POSSESSES INFORMATION RELEVANT TO A
CRIME THE GRAND JURY IS INVESTIGATING, THAT THE INFORMATION THE
REPORTER HAS IS UNAVAILABLE FROM OTHER SOURCES, AND THAT THE NEED FOR
THE INFORMATION IS SUFFICIENTLY COMPELLING TO OVERRIDE THE CLAIMED
INVASION OF FIRST AMENDMENT INTERESTS OCCASIONED BY THE DISCLOSURE. 
PRINCIPALLY RELIED UPON ARE PRIOR CASES EMPHASIZING THE IMPORTANCE OF
THE FIRST AMENDMENT GUARANTEES TO INDIVIDUAL DEVELOPMENT AND TO OUR
SYSTEM OF REPRESENTATIVE GOVERNMENT, /17/  DECISIONS REQUIRING THAT
OFFICIAL ACTION WITH ADVERSE IMPACT ON FIRST AMENDMENT RIGHTS BE
JUSTIFIED BY A PUBLIC INTEREST THAT IS "COMPELLING" OR "PARAMOUNT,"
/18/  AND THOSE PRECEDENTS ESTABLISHING THE PRINCIPLE THAT JUSTIFIABLE
GOVERNMENTAL GOALS MAY NOT BE ACHIEVED BY UNDULY BROAD MEANS HAVING AN
UNNECESSARY IMPACT ON PROTECTED RIGHTS OF SPEECH, PRESS, OR
ASSOCIATION.  /19/  THE HEART OF THE CLAIM IS THAT THE BURDEN ON NEWS
GATHERING RESULTING FROM COMPELLING REPORTERS TO DISCLOSE CONFIDENTIAL
INFORMATION OUTWEIGHS ANY PUBLIC INTEREST IN OBTAINING THE
INFORMATION.  /20/ 

WE DO NOT QUESTION THE SIGNIFICANCE OF FREE SPEECH, PRESS, OR
ASSEMBLY TO THE COUNTRY'S WELFARE.  NOR IS IT SUGGESTED THAT NEWS
GATHERING DOES NOT QUALIFY FOR FIRST AMENDMENT PROTECTION; WITHOUT SOME
PROTECTION FOR SEEKING OUT THE NEWS, FREEDOM OF THE PRESS COULD BE
EVISCERATED.  BUT THESE CASES INVOLVE NO INTRUSIONS UPON SPEECH OR
ASSEMBLY, NO PRIOR RESTRAINT OR RESTRICTION ON WHAT THE PRESS MAY
PUBLISH, AND NO EXPRESS OR IMPLIED COMMAND THAT THE PRESS PUBLISH WHAT
IT PREFERS TO WITHHOLD.  NO EXACTION OR TAX FOR THE PRIVILEGE OF
PUBLISHING, AND NO PENALTY, CIVIL OR CRIMINAL, RELATED TO THE CONTENT
OF PUBLISHED MATERIAL IS AT ISSUE HERE.  THE USE OF CONFIDENTIAL
SOURCES BY THE PRESS IS NOT FORBIDDEN OR RESTRICTED; REPORTERS REMAIN
FREE TO SEEK NEWS FROM ANY SOURCE BY MEANS WITHIN THE LAW.  NO ATTEMPT
IS MADE TO REQUIRE THE PRESS TO PUBLISH ITS SOURCES OF INFORMATION OR
INDISCRIMINATELY TO DISCLOSE THEM ON REQUEST.  THE SOLE ISSUE BEFORE US
IS THE OBLIGATION OF REPORTERS TO RESPOND TO GRAND JURY SUBPOENAS AS
OTHER CITIZENS DO AND TO ANSWER QUESTIONS RELEVANT TO AN INVESTIGATION
INTO THE COMMISSION OF CRIME.  CITIZENS GENERALLY ARE NOT
CONSTITUTIONALLY IMMUNE FROM GRAND JURY SUBPOENAS; AND NEITHER THE
FIRST AMENDMENT NOR ANY OTHER CONSTITUTIONAL PROVISION PROTECTS THE
AVERAGE CITIZEN FROM DISCLOSING TO A GRAND JURY INFORMATION THAT HE HAS
RECEIVED IN CONFIDENCE.  /21/  THE CLAIM IS, HOWEVER, THAT REPORTERS
ARE EXEMPT FROM THESE OBLIGATIONS BECAUSE IF FORCED TO RESPOND TO
SUBPOENAS AND IDENTIFY THEIR SOURCES OR DISCLOSE OTHER CONFIDENCES,
THEIR INFORMANTS WILL REFUSE OR BE RELUCTANT TO FURNISH NEWSWORTHY
INFORMATION IN THE FUTURE.  THIS ASSERTED BURDEN ON NEWS GATHERING IS
SAID TO MAKE COMPELLED TESTIMONY FROM NEWSMEN CONSTITUTIONALLY SUSPECT
AND TO REQUIRE A PRIVILEGED POSITION FOR THEM. 

IT IS CLEAR THAT THE FIRST AMENDMENT DOES NOT INVALIDATE EVERY
INCIDENTAL BURDENING OF THE PRESS THAT MAY RESULT FROM THE ENFORCEMENT
OF CIVIL OR CRIMINAL STATUTES OF GENERAL APPLICABILITY.  UNDER PRIOR
CASES, OTHERWISE VALID LAWS SERVING SUBSTANTIAL PUBLIC INTERESTS MAY BE
ENFORCED AGAINST THE PRESS AS AGAINST OTHERS, DESPITE THE POSSIBLE
BURDEN THAT MAY BE IMPOSED.  THE COURT HAS EMPHASIZED THAT "(THE
PUBLISHER OF A NEWSPAPER HAS NO SPECIAL IMMUNITY FROM THE APPLICATION
OF GENERAL LAWS.  HE HAS NO SPECIAL PRIVILEGE TO INVADE THE RIGHTS AND
LIBERTIES OF OTHERS."  ASSOCIATED PRESS V. NLRB, 301 U.S. 103, 132-133
(1937).  IT WAS THERE HELD THAT THE ASSOCIATED PRESS, A NEWS-GATHERING
AND DISSEMINATING ORGANIZATION, WAS NOT EXEMPT FROM THE REQUIREMENTS OF
THE NATIONAL LABOR RELATIONS ACT.  THE HOLDING WAS REAFFIRMED IN
OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186, 192-193 (1946),
WHERE THE COURT REJECTED THE CLAIM THAT APPLYING THE FAIR LABOR
STANDARDS ACT TO A NEWSPAPER PUBLISHING BUSINESS WOULD ABRIDGE THE
FREEDOM OF PRESS GUARANTEED BY THE FIRST AMENDMENT.  SEE ALSO MABEE V.
WHITE PLAINS PUBLISHING CO., 327 U.S. 178 (1946).  ASSOCIATED PRESS V.
UNITED STATES, 326 U.S. 1 (1945), SIMILARLY OVERRULED ASSERTIONS THAT
THE FIRST AMENDMENT PRECLUDED APPLICATION OF THE SHERMAN ACT TO A
NEWSGATHERING AND DISSEMINATING ORGANIZATION.  CF. INDIANA FARMER'S
GUIDE PUBLISHING CO. V. PRAIRIE FARMER PUBLISHING CO., 293 U.S. 268,
276 (1934); CITIZEN PUBLISHING CO. V. UNITED STATES, 394 U.S. 131, 139
(1969); LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S. 143, 155-156
(1951).  LIKEWISE, A NEWSPAPER MAY BE SUBJECTED TO NONDISCRIMINATORY
FORMS OF GENERAL TAXATION.  GROSJEAN V. AMERICAN PRESS CO., 297 U.S.
233, 250 (1936); MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 112 (1943). 

THE PREVAILING VIEW IS THAT THE PRESS IS NOT FREE TO PUBLISH WITH
IMPUNITY EVERYTHING AND ANYTHING IT DESIRES TO PUBLISH.  ALTHOUGH IT
MAY DETER OR REGULATE WHAT IS SAID OR PUBLISHED, THE PRESS MAY NOT
CIRCULATE KNOWING OR RECKLESS FALSEHOODS DAMAGING TO PRIVATE REPUTATION
WITHOUT SUBJECTING ITSELF TO LIABILITY FOR DAMAGES INCLUDING PUNITIVE
DAMAGES, OR EVEN CRIMINAL PROSECUTION.  SEE NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254, 279-280 (1964); GARRISON V. LOUISIANA, 379 U.S.
64, 74 (1964); CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 147 (1967)
(OPINION OF HARLAN, J.,); MONITOR PATRIOT CO. V. ROY, 401 U.S. 265, 277
(1971).  A NEWSPAPER OR A JOURNALIST MAY ALSO BE PUNISHED FOR CONTEMPT
OF COURT, IN APPROPRIATE CIRCUMSTANCES.  CRAIG V. HARNEY, 331 U.S. 367,
377-378 (1947). 

IT HAS GENERALLY BEEN HELD THAT THE FIRST AMENDMENT DOES NOT
GUARANTEE THE PRESS A CONSTITUTIONAL RIGHT OF SPECIAL ACCESS TO
INFORMATION NOT AVAILABLE TO THE PUBLIC GENERALLY.  ZEMEL V. RUSK, 381
U.S. 1, 16-17 (1965); NEW YORK TIMES CO. V. UNITED STATES, 403 U.S.
713, 728-730 (1971), (STEWART, J., CONCURRING); TRIBUNE REVIEW
PUBLISHING CO. V. THOMAS, 254 F.2D 883, 885 (CA3 1958); IN THE MATTER
OF UNITED PRESS ASSNS.  V. VALENTE, 308 N.Y. 71, 77, 123 N.E.2D 777,
778 (1954).  IN ZEMEL V. RUSK, SUPRA, FOR EXAMPLE, THE COURT SUSTAINED
THE GOVERNMENT'S REFUSAL TO VALIDATE PASSPORTS TO CUBA EVEN THOUGH THAT
RESTRICTION "RENDERED) LESS THAN WHOLLY FREE THE FLOW OF INFORMATION
CONCERNING THAT COUNTRY."  ID., AT 16.  THE BAN ON TRAVEL WAS HELD
CONSTITUTIONAL, FOR "(THE RIGHT TO SPEAK AND PUBLISH DOES NOT CARRY
WITH IT THE UNRESTRAINED RIGHT TO GATHER INFORMATION."  ID., AT 17. 
/22/ 

DESPITE THE FACT THAT NEWS GATHERING MAY BE HAMPERED, THE PRESS IS
REGULARLY EXCLUDED FROM GRAND JURY PROCEEDINGS, OUR OWN CONFERENCES,
THE MEETINGS OF OTHER OFFICIAL BODIES GATHERED IN EXECUTIVE SESSION,
AND THE MEETINGS OF PRIVATE ORGANIZATIONS.  NEWSMEN HAVE NO
CONSTITUTIONAL RIGHT OF ACCESS TO THE SCENES OF CRIME OR DISASTER WHEN
THE GENERAL PUBLIC IS EXCLUDED, AND THEY MAY BE PROHIBITED FROM
ATTENDING OR PUBLISHING INFORMATION ABOUT TRIALS IF SUCH RESTRICTIONS
ARE NECESSARY TO ASSURE A DEFENDANT A FAIR TRIAL BEFORE AN IMPARTIAL
TRIBUNAL.  IN SHEPPARD V. MAXWELL, 384 U.S. 333 (1966), FOR EXAMPLE,
THE COURT REVERSED A STATE COURT CONVICTION WHERE THE TRIAL COURT
FAILED TO ADOPT "STRICTER RULES GOVERNING THE USE OF THE COURTROOM BY
NEWSMEN, AS SHEPPARD'S COUNSEL REQUESTED," NEGLECTED TO INSULATE
WITNESSES FROM THE PRESS, AND MADE NO "EFFORT TO CONTROL THE RELEASE OF
LEADS, INFORMATION, AND GOSSIP TO THE PRESS BY POLICE OFFICERS,
WITNESSES, AND THE COUNSEL FOR BOTH SIDES."  ID., AT 358, 359.  "(THE
TRIAL COURT MIGHT WELL HAVE PROSCRIBED EXTRAJUDICIAL STATEMENTS BY ANY
LAWYER, PARTY, WITNESS, OR COURT OFFICIAL WHICH DIVULGED PREJUDICIAL
MATTERS."  ID., AT 361.  SEE ALSO ESTES V. TEXAS, 381 U.S. 532, 539-540
(1965); RIDEAU V. LOUISIANA, 373 U.S. 723, 726 (1963). 

IT IS THUS NOT SURPRISING THAT THE GREAT WEIGHT OF AUTHORITY IS THAT
NEWSMEN ARE NOT EXEMPT FROM THE NORMAL DUTY OF APPEARING BEFORE A GRAND
JURY AND ANSWERING QUESTIONS RELEVANT TO A CRIMINAL INVESTIGATION.  AT
COMMON LAW, COURTS CONSISTENTLY REFUSED TO RECOGNIZE THE EXISTENCE OF
ANY PRIVILEGE AUTHORIZING A NEWSMAN TO REFUSE TO REVEAL CONFIDENTIAL
INFORMATION TO A GRAND JURY.  SEE, E.G., EX PARTE LAWRENCE, 116 CAL.
298, 48 P. 124 (1897); PLUNKETT V. HAMILTON, 136 GA. 72, 70 S.E. 781
(1911); CLEIN V. STATE, 52 SO.2D 117 (FLA. 1950); IN RE GRUNOW, 84
N.J.L. 235, 85 A. 1011 (1913); PEOPLE EX REL. MOONFY V. SHERIFF, 269
N.Y. 291, 199 N.E. 415 (1936); JOSLYN V. PEOPLE, 67 COLO. 297, 184 P.
375 (1919); ADAMS V. ASSOCIATED PRESS, 46 F.R.D. 439 (SD TEX. 1969);
BREWSTER V. BOSTON HERALD-TRAVELER CORP., 20 F.R.D. 416 (MASS. 1957). 
SEE GENERALLY ANNOT., 7 A.L.R.3D 591 (1966).  IN 1958, A NEWS GATHERER
ASSERTED FOR THE FIRST TIME THAT THE FIRST AMENDMENT EXEMPTED
CONFIDENTIAL INFORMATION FROM PUBLIC DISCLOSURE PURSUANT TO A SUBPOENA
ISSUED IN A CIVIL SUIT, GARLAND V. TORRE, 259 F.2D 545 (CA2), CERT.
DENIED, 358 U.S. 910 (1958), BUT THE CLAIM WAS DENIED, AND THIS
ARGUMENT HAS BEEN ALMOST UNIFORMLY REJECTED SINCE THEN, ALTHOUGH THERE
ARE OCCASIONAL DICTA THAT, IN CIRCUMSTANCES NOT PRESENTED HERE, A
NEWSMAN MIGHT BE EXCUSED.  IN RE GOODFADER, 45 HAW.  317, 367 P.2D 472
(1961); IN RE TAYLOR, 412 PA. 32, 193 A.2D 181 (1963); STATE V.
BUCHANAN, 250 ORE.  244, 436 P.2D 729, CERT. DENIED, 392 U.S. 905
(1968); MURPHY V. COLORADO (NO. 19604, SUP. CT. COLO.), CERT. DENIED,
365 U.S. 843 (1961) (UNREPORTED, DISCUSSED IN IN RE GOODFADER, SUPRA,
AT 366, 367 P.2D, AT 498 (MIZUHA, J., DISSENTING)).  THESE COURTS HAVE
APPLIED THE PRESUMPTION AGAINST THE EXISTENCE OF AN ASSERTED
TESTIMONIAL PRIVILEGE, UNITED STATES V. BRYAN, 339 U.S. 323, 331
(1950), AND HAVE CONCLUDED THAT THE FIRST AMENDMENT INTEREST ASSERTED
BY THE NEWSMAN WAS OUTWEIGHED BY THE GENERAL OBLIGATION OF A CITIZEN TO
APPEAR BEFORE A GRAND JURY OR AT TRIAL, PURSUANT TO A SUBPOENA, AND
GIVE WHAT INFORMATION HE POSSESSES.  THE OPINIONS OF THE STATE COURTS
IN BRANZBURG AND PAPPAS ARE TYPICAL OF THE PREVAILING VIEW, ALTHOUGH A
FEW RECENT CASES, SUCH AS CALDWELL, HAVE RECOGNIZED AND GIVEN EFFECT TO
SOME FORM OF CONSTITUTIONAL NEWSMAN'S PRIVILEGE.  SEE STATE V. KNOPS,
49 WIS.2D 647, 183 N.W.2D 93 (1971) (DICTUM); ALIOTO V. COWLES
COMMUNICATIONS, INC., C.A. NO. 52150 (ND CAL. 1969); IN RE GRAND JURY
WITNESSES, 322 F.SUPP.  573 (ND CAL. 1970); PEOPLE V. DOHRN, CRIM. NO.
69-3808 (COOK COUNTY, ILL., CIR. CT. 1970).     THE PREVAILING
CONSTITUTIONAL VIEW OF THE NEWSMAN'S PRIVILEGE IS VERY MUCH ROOTED IN
THE ANCIENT ROLE OF THE GRAND JURY THAT HAS THE DUAL FUNCTION OF
DETERMINING IF THERE IS PROBABLE CAUSE TO BELIEVE THAT A CRIME HAS BEEN
COMMITTED AND OF PROTECTING CITIZENS AGAINST UNFOUNDED CRIMINAL
PROSECUTIONS.  /23/  GRAND JURY PROCEEDINGS ARE CONSTITUTIONALLY
MANDATED FOR THE INSTITUTION OF FEDERAL CRIMINAL PROSECUTIONS FOR
CAPITAL OR OTHER SERIOUS CRIMES, AND "ITS CONSTITUTIONAL PREROGATIVES
ARE ROOTED IN LONG CENTURIES OF ANGLO-AMERICAN HISTORY."  HANNAH V.
LARCHE, 363 U.S. 420, 489-490 (1960) (FRANKFURTER, J., CONCURRING IN
RESULT).  THE FIFTH AMENDMENT PROVIDES THAT "(NO PERSON SHALL BE HELD
TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A
PRESENTMENT OR INDICTMENT OF A GRAND JURY."  /24/  THE ADOPTION OF THE
GRAND JURY "IN OUR CONSTITUTION AS THE SOLE METHOD FOR PREFERRING
CHARGES IN SERIOUS CRIMINAL CASES SHOWS THE HIGH PLACE IT HELD AS AN
INSTRUMENT OF JUSTICE."  COSTELLO V. UNITED STATES, 350 U.S. 359, 362
(1956).  ALTHOUGH STATE SYSTEMS OF CRIMINAL PROCEDURE DIFFER GREATLY
AMONG THEMSELVES, THE GRAND JURY IS SIMILARLY GUARANTEED BY MANY STATE
CONSTITUTIONS AND PLAYS AN IMPORTANT ROLE IN FAIR AND EFFECTIVE LAW
ENFORCEMENT IN THE OVERWHELMING MAJORITY OF THE STATES.  /25/  BECAUSE
ITS TAKE IS TO INQUIRE INTO THE EXISTENCE OF POSSIBLE CRIMINAL CONDUCT
AND TO RETURN ONLY WELL-FOUNDED INDICTMENTS, ITS INVESTIGATIVE POWERS
ARE NECESSARILY BROAD.  "IT IS A GRAND INQUEST, A BODY WITH POWERS OF
INVESTIGATION AND INQUISITION, THE SCOPE OF WHOSE INQUIRIES IS NOT TO
BE LIMITED NARROWLY BY QUESTIONS OF PROPRIETY OR FORECASTS OF THE
PROBABLE RESULT OF THE INVESTIGATION, OR BY DOUBTS WHETHER ANY
PARTICULAR INDIVIDUAL WILL BE FOUND PROPERLY SUBJECT TO AN ACCUSATION
OF CRIME."  BLAIR V. UNITED STATES, 250 U.S. 273, 282 (1919).  HENCE,
THE GRAND JURY'S AUTHORITY TO SUBPOENA WITNESSES IS NOT ONLY HISTORIC,
ID., AT 279-281, BUT ESSENTIAL TO ITS TASK.  ALTHOUGH THE POWERS OF THE
GRAND JURY ARE NOT UNLIMITED AND ARE SUBJECT TO THE SUPERVISION OF A
JUDGE, THE LONGSTANDING PRINCIPLE THAT "THE PUBLIC . . . HAS A RIGHT TO
EVERY MAN'S EVIDENCE," EXCEPT FOR THOSE PERSONS PROTECTED BY A
CONSTITUTIONAL, COMMON-LAW, OR STATUTORY PRIVILEGE.  UNITED STATES V.
BRYAN, 339 U.S.,AT 331; BLACKMER V. UNITED STATES, 284 U.S. 421, 428
(1932); 8 J.WIGMORE, EVIDENCE 2192 (MCNAUGHTON REV; 1961), IS
PARTICULARLY APPLICABLE TO GRAND JURY PROCEEDINGS.  /26/ 

A NUMBER OF STATES HAVE PROVIDED NEWSMEN A STATUTORY PRIVILEGE OF
VARYING BREADTH, /27/  BUT THE MAJORITY HAVE NOT DONE SO, AND NONE HAS
BEEN PROVIDED BY FEDERAL STATUTE.  /28/  UNTIL NOW THE ONLY TESTIMONIAL
PRIVILEGE FOR UNOFFICIAL WITNESSES THAT IS ROOTED IN THE FEDERAL
CONSTITUTION IS THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF
INCRIMINATION.  WE ARE ASKED TO CREATE ANOTHER BY INTERPRETING THE
FIRST AMENDMENT TO GRANT NEWSMEN A TESTIMONIAL PRIVILEGE THAT OTHER
CITIZENS DO NOT ENJOY.  THIS WE DECLINE TO DO.  /29/  FAIR AND
EFFECTIVE LAW ENFORCEMENT AIMED AT PROVIDING SECURITY FOR THE PERSON
AND PROPERTY OF THE INDIVIDUAL IS A FUNDAMENTAL FUNCTION OF GOVERNMENT,
AND THE GRAND JURY PLAYS AN IMPORTANT, CONSTITUTIONALLY MANDATED ROLE
IN THIS PROCESS.  ON THE RECORDS NOW BEFORE US, WE PERCEIVE NO BASIS
FOR HOLDING THAT THE PUBLIC INTEREST IN LAW ENFORCEMENT AND IN ENSURING
EFFECTIVE GRAND JURY PROCEEDINGS IS INSUFFICIENT TO OVERRIDE THE
CONSEQUENTIAL, BUT UNCERTAIN, BURDEN ON NEWS GATHERING THAT IS SAID TO
RESULT FROM INSISTING THAT REPORTERS, LIKE OTHER CITIZENS, RESPOND TO
RELEVANT QUESTIONS PUT TO THEM IN THE COURSE OF A VALID GRAND JURY
INVESTIGATION OR CRIMINAL TRIAL. 

THIS CONCLUSION ITSELF INVOLVES NO RESTRAINT ON WHAT NEWSPAPERS MAY
PUBLISH OR ON THE TYPE OR QUALITY OF INFORMATION REPORTERS MAY SEEK TO
ACQUIRE, NOR DOES IT THREATEN THE VAST BULK OF CONFIDENTIAL
RELATIONSHIPS BETWEEN REPORTERS AND THEIR SOURCES.  GRAND JURIES
ADDRESS THEMSELVES TO THE ISSUES OF WHETHER CRIMES HAVE BEEN COMMITTED
AND WHO COMMITTED THEM.  ONLY WHERE NEWS SOURCES THEMSELVES ARE
IMPLICATED IN CRIME OR POSSESS INFORMATION RELEVANT TO THE GRAND JURY'S
TASK NEED THEY OR THE REPORTER BE CONCERNED ABOUT GRAND JURY
SUBPOENAS.  NOTHING BEFORE US INDICATES THAT A LARGE NUMBER OR
PERCENTAGE OF ALL CONFIDENTIAL NEWS SOURCES FALLS INTO EITHER CATEGORY
AND WOULD IN ANY WAY BE DETERRED BY OUR HOLDING THAT THE CONSTITUTION
DOES NOT, AS IT NEVER HAS, EXEMPT THE NEWSMAN FROM PERFORMING THE
CITIZEN'S NORMAL DUTY OF APPEARING AND FURNISHING INFORMATION RELEVANT
TO THE GRAND JURY'S TASK. 

THE PREFERENCE FOR ANONYMITY OF THOSE CONFIDENTIAL INFORMANTS
INVOLVED IN ACTUAL CRIMINAL CONDUCT IS PRESUMABLY A PRODUCT OF THEIR
DESIRE TO ESCAPE CRIMINAL PROSECUTION, AND THIS PREFERENCE, WHILE
UNDERSTANDABLE, IS HARDLY DESERVING OF CONSTITUTIONAL PROTECTION.  IT
WOULD BE FRIVOLOUS TO ASSERT-- AND NO ONE DOES IN THESE CASES-- THAT
THE FIRST AMENDMENT, IN THE INTEREST OF SECURING NEWS OR OTHERWISE,
CONFERS A LICENSE ON EITHER THE REPORTER OR HIS NEWS SOURCES TO VIOLATE
VALID CRIMINAL LAWS.  ALTHOUGH STEALING DOCUMENTS OR PRIVATE
WIRETAPPING COULD PROVIDE NEWSWORTHY INFORMATION, NEITHER REPORTER NOR
SOURCE IS IMMUNE FROM CONVICTION FOR SUCH CONDUCT, WHATEVER THE IMPACT
ON THE FLOW OF NEWS.  NEITHER IS IMMUNE, ON FIRST AMENDMENT GROUNDS,
FROM TESTIFYING AGAINST THE OTHER, BEFORE THE GRAND JURY OR AT A
CRIMINAL TRIAL.  THE AMENDMENT DOES NOT REACH SO FAR AS TO OVERRIDE THE
INTEREST OF THE PUBLIC IN ENSURING THAT NEITHER REPORTER NOR SOURCE IS
INVADING THE RIGHTS OF OTHER CITIZENS THROUGH REPREHENSIBLE CONDUCT
FORBIDDEN TO ALL OTHER PERSONS.  TO ASSERT THE CONTRARY PROPOSITION 

"IS TO ANSWER IT, SINCE IT INVOLVES IN ITS VERY STATEMENT THE
CONTENTION THAT THE FREEDOM OF THE PRESS IS THE FREEDOM TO DO WRONG
WITH IMPUNITY AND IMPLIES THE RIGHT TO FRUSTRATE AND DEFEAT THE
DISCHARGE OF THOSE GOVERNMENTAL DUTIES UPON THE PERFORMANCE OF WHICH
THE FREEDOM OF ALL, INCLUDING THAT OF THE PRESS, DEPENDS.  . . . IT
SUFFICES TO SAY THAT, HOWEVER COMPLETE IS THE RIGHT OF THE PRESS TO
STATE PUBLIC THINGS AND DISCUSS THEM, THAT RIGHT, AS EVERY OTHER RIGHT
ENJOYED IN HUMAN SOCIETY, IS SUBJECT TO THE RESTRAINTS WHICH SEPARATE
RIGHT FROM WRONG-DOING."  TOLEDO NEWSPAPER CO. V. UNITED STATES, 247
U.S. 402, 419-420 (1918).  /30/ 

THUS, WE CANNOT SERIOUSLY ENTERTAIN THE NOTION THAT THE FIRST
AMENDMENT PROTECTS A NEWSMAN'S AGREEMENT TO CONCEAL THE CRIMINAL
CONDUCT OF HIS SOURCE, OR EVIDENCE THEREOF, ON THE THEORY THAT IT IS
BETTER TO WRITE ABOUT CRIME THAN TO DO SOMETHING ABOUT IT.  INSOFAR AS
ANY REPORTER IN THESE CASES UNDERTOOK NOT TO REVEAL OR TESTIFY ABOUT
THE CRIME HE WITNESSED, HIS CLAIM OF PRIVILEGE UNDER THE FIRST
AMENDMENT PRESENTS NO SUBSTANTIAL QUESTION.  THE CRIMES OF NEWS SOURCES
ARE NO LESS REPREHENSIBLE AND THREATENING TO THE PUBLIC INTEREST WHEN
WITNESSED BY A REPORTER THAN WHEN THEY ARE NOT. 

THERE REMAIN THOSE SITUATIONS WHERE A SOURCE IS NOT ENGAGED IN
CRIMINAL CONDUCT BUT HAS INFORMATION SUGGESTING ILLEGAL CONDUCT BY
OTHERS.  NEWSMEN FREQUENTLY RECEIVE INFORMATION FROM SUCH SOURCES
PURSUANT TO A TACIT OR EXPRESS AGREEMENT TO WITHHOLD THE SOURCE'S NAME
AND SUPPRESS ANY INFORMATION THAT THE SOURCE WISHES NOT PUBLISHED. 
SUCH INFORMANTS PRESUMABLY DESIRE ANONYMITY IN ORDER TO AVOID BEING
ENTANGLED AS A WITNESS IN A CRIMINAL TRIAL OR GRAND JURY
INVESTIGATION.  THEY MAY FEAR THAT DISCLOSURE WILL THREATEN THEIR JOB
SECURITY OR PERSONAL SAFETY OR THAT IT WILL SIMPLY RESULT IN DISHONOR
OR EMBARRASSMENT. 

THE ARGUMENT THAT THE FLOW OF NEWS WILL BE DIMINISHED BY COMPELLING
REPORTERS TO AID THE GRAND JURY IN A CRIMINAL INVESTIGATION IS NOT
IRRATIONAL, NOR ARE THE RECORDS BEFORE US SILENT ON THE MATTER.  BUT WE
REMAIN UNCLEAR HOW OFTEN AND TO WHAT EXTENT INFORMERS ARE ACTUALLY
DETERRED FROM FURNISHING INFORMATION WHEN NEWSMEN ARE FORCED TO TESTIFY
BEFORE A GRAND JURY.  THE AVAILABLE DATA INDICATE THAT SOME NEWSMEN
RELY A GREAT DEAL ON CONFIDENTIAL SOURCES AND THAT SOME INFORMANTS ARE
PARTICULARLY SENSITIVE TO THE THREAT OF EXPOSURE AND MAY BE SILENCED IF
IT IS HELD BY THIS COURT THAT, ORDINARILY, NEWSMEN MUST TESTIFY
PURSUANT TO SUBPOENAS, /31/  BUT THE EVIDENCE FAILS TO DEMONSTRATE THAT
THERE WOULD BE A SIGNIFICANT CONSTRICTION OF THE FLOW OF NEWS TO THE
PUBLIC IF THIS COURT REAFFIRMS THE PRIOR COMMON-LAW AND CONSTITUTIONAL
RULE REGARDING THE TESTIMONIAL OBLIGATIONS OF NEWSMEN.  ESTIMATES OF
THE INHIBITING EFFECT OF SUCH SUBPOENAS ON THE WILLINGNESS OF
INFORMANTS TO MAKE DISCLOSURES TO NEWSMEN ARE WIDELY DIVERGENT AND TO A
GREAT EXTENT SPECULATIVE.  /32/  IT WOULD BE DIFFICULT TO CANVASS THE
VIEWS OF THE INFORMANTS THEMSELVES; SURVEYS OF REPORTERS ON THIS TOPIC
ARE CHIEFLY OPINIONS OF PREDICTED INFORMANT BEHAVIOR AND MUST BE VIEWED
IN THE LIGHT OF THE PROFESSIONAL SELF-INTEREST OF THE INTERVIEWEES. 
/33/ RELIANCE BY THE PRESS ON CONFIDENTIAL INFORMANTS DOES NOT MEAN
THAT ALL SUCH SOURCES WILL IN FACT DRY UP BECAUSE OF THE LATER POSSIBLE
APPEARANCE OF THE NEWSMAN BEFORE A GRAND JURY.  THE REPORTER MAY NEVER
BE CALLED AND IF HE OBJECTS TO TESTIFYING, THE PROSECUTION MAY NOT
INSIST.  ALSO, THE RELATIONSHIP OF MANY INFORMANTS TO THE PRESS IS A
SYMBIOTIC ONE WHICH IS UNLIKELY TO BE GREATLY INHIBITED BY THE THREAT
OF SUBPOENA:  QUITE OFTEN, SUCH INFORMANTS ARE MEMBERS OF A MINORITY
POLITICAL OR CULTURAL GROUP THAT RELIES HEAVILY ON THE MEDIA TO
PROPAGATE ITS VIEWS, PUBLICIZE ITS AIMS, AND MAGNIFY ITS EXPOSURE TO
THE PUBLIC.  MOREOVER, GRAND JURIES CHARACTERISTICALLY CONDUCT SECRET
PROCEEDINGS, AND LAW ENFORCEMENT OFFICERS ARE THEMSELVES EXPERIENCED IN
DEALING WITH INFORMERS, AND HAVE THEIR OWN METHODS FOR PROTECTING THEM
WITHOUT INTERFERENCE WITH THE EFFECTIVE ADMINISTRATION OF JUSTICE. 
THERE IS LITTLE BEFORE US INDICATING THAT INFORMANTS WHOSE INTEREST IN
AVOIDING EXPOSURE IS THAT IT MAY THREATEN JOB SECURITY, PERSONAL
SAFETY, OR PEACE OF MIND, WHOULD IN FACT BE IN A WORSE POSITION, OR
WOULD THINK THEY WOULD BE, IF THEY RISKED PLACING THEIR TRUST IN PUBLIC
OFFICIALS AS WELL AS REPORTERS.  WE DOUBT IF THE INFORMER WHO PREFERS
ANONYMITY BUT IS SINCERELY INTERESTED IN FURNISHING EVIDENCE OF CRIME
WILL ALWAYS OR VERY OFTEN BE DETERRED BY THE PROSPECT OF DEALING WITH
THOSE PUBLIC AUTHORITIES CHARACTERISTICALLY CHARGED WITH THE DUTY TO
PROTECT THE PUBLIC INTEREST AS WELL AS HIS. 

ACCEPTING THE FACT, HOWEVER, THAT AN UNDETERMINED NUMBER OF
INFORMANTS NOT THEMSELVES IMPLICATED IN CRIME WILL NEVERTHELESS, FOR
WHATEVER REASON, REFUSE TO TALK TO NEWSMEN IF THEY FEAR IDENTIFICATION
BY A REPORTER IN AN OFFICIAL INVESTIGATION, WE CANNOT ACCEPT THE
ARGUMENT THAT THE PUBLIC INTEREST IN POSSIBLE FUTURE NEWS ABOUT CRIME
FROM UNDISCLOSED, UNVERIFIED SOURCES MUST TAKE PRECEDENCE OVER THE
PUBLIC INTEREST IN PURSUING AND PROSECUTING THOSE CRIMES REPORTED TO
THE PRESS BY INFORMANTS AND IN THUS DETERRING THE COMMISSION OF SUCH
CRIMES IN THE FUTURE. 

WE NOTE FIRST THAT THE PRIVILEGE CLAIMED IS THAT OF THE REPORTER,
NOT THE INFORMANT, AND THAT IF THE AUTHORITIES INDEPENDENTLY IDENTIFY
THE INFORMANT, NEITHER HIS OWN RELUCTANCE TO TESTIFY NOR THE OBJECTION
OF THE NEWSMAN WOULD SHIELD HIM FROM GRAND JURY INQUIRY, WHATEVER THE
IMPACT ON THE FLOW OF NEWS OR ON HIS FUTURE USEFULNESS AS A SECRET
SOURCE OF INFORMATION.  MORE IMPORTANT, IT IS OBVIOUS THAT AGREEMENTS
TO CONCEAL INFORMATION RELEVANT TO COMMISSION OF CRIME HAVE VERY LITTLE
TO RECOMMEND THEM FROM THE STANDPOINT OF PUBLIC POLICY.  HISTORICALLY,
THE COMMON LAW RECOGNIZED A DUTY TO RAISE THE "HUE AND CRY" AND REPORT
FELONIES TO THE AUTHORITIES.  /34/  MISPRISION OF A FELONY-- THAT IS,
THE CONCEALMENT OF A FELONY "WHICH A MAN KNOWS, BUT NEVER ASSENTED TO .
. . (SO AS TO BECOME) EITHER PRINCIPAL OR ACCESSORY," 4 W.BLACKSTONE,
COMMENTARIES *121, WAS OFTEN SAID TO BE A COMMON-LAW CRIME.  /35/  THE
FIRST CONGRESS PASSED A STATUTE, 1 STAT. 113, SEC. 6, AS AMENDED, 35
STAT. 1114, SEC. 146, 62 STAT. 684, WHICH IS STILL IN EFFECT, DEFINING
A FEDERAL CRIME OF MISPRISION: 

     "WHOEVER, HAVING KNOWLEDGE OF THE ACTUAL COMMISSION OF A
FELONY

COGNIZABLE BY A COURT OF THE UNITED STATES, CONCEALS AND DOES NOT

  AS SOON AS POSSIBLE MAKE KNOWN THE SAME TO SOME JUDGE OR OTHER

  PERSON IN CIVIL OR MILITARY AUTHORITY UNDER THE UNITED STATES,

  SHALL BE (GUILTY OF MISPRISION)."  18 U.S.C. 4.  /36/

IT IS APPARENT FROM THIS STATUTE, AS WELL AS FROM OUR HISTORY AND THAT
OF ENGLAND, THAT CONCEALMENT OF CRIME AND AGREEMENTS TO DO SO ARE NOT
LOOKED UPON WITH FAVOR.  SUCH CONDUCT DESERVES NO ENCOMIUM, AND WE
DECLINE NOW TO AFFORD IT FIRST AMENDMENT PROTECTION BY DENIGRATING THE
DUTY OF A CITIZEN, WHETHER REPORTER OR INFORMER, TO RESPOND TO GRAND
JURY SUBPOENA AND ANSWER RELEVANT QUESTIONS PUT TO HIM. 

OF COURSE, THE PRESS HAS THE RIGHT TO ABIDE BY ITS AGREEMENT NOT TO
PUBLISH ALL THE INFORMATION IT HAS, BUT THE RIGHT TO WITHHOLD NEWS IS
NOT EQUIVALENT TO A FIRST AMENDMENT EXEMPTION FROM THE ORDINARY DUTY OF
ALL OTHER CITIZENS TO FURNISH RELEVANT INFORMATION TO A GRAND JURY
PERFORMING AN IMPORTANT PUBLIC FUNCTION.  PRIVATE RESTRAINTS ON THE
FLOW OF INFORMATION ARE NOT SO FAVORED BY THE FIRST AMENDMENT THAT THEY
OVERRIDE ALL OTHER PUBLIC INTERESTS.  AS MR. JUSTICE BLACK DECLARED IN
ANOTHER CONTEXT, "(FREEDOM OF THE PRESS FROM GOVERNMENTAL INTERFERENCE
UNDER THE FIRST AMENDMENT DOES NOT SANCTION REPRESSION OF THAT FREEDOM
BY PRIVATE INTERESTS."  ASSOCIATED PRESS V. UNITED STATES, 326 U.S.,AT
20.     NEITHER ARE WE NOW CONVINCED THAT A VIRTUALLY IMPENETRABLE
CONSTITUTIONAL SHIELD, BEYOND LEGISLATIVE OR JUDICIAL CONTROL, SHOULD
BE FORGED TO PROTECT A PRIVATE SYSTEM OF INFORMERS OPERATED BY THE
PRESS TO REPORT ON CRIMINAL CONDUCT, A SYSTEM THAT WOULD BE
UNACCOUNTABLE TO THE PUBLIC, WOULD POSE A THREAT TO THE CITIZEN'S
JUSTIFIABLE EXPECTATIONS OF PRIVACY, AND WOULD EQUALLY PROTECT WELL
INTENTIONED INFORMANTS AND THOSE WHO FOR PAY OR OTHERWISE BETRAY THEIR
TRUST TO THEIR EMPLOYER OR ASSOCIATES.  THE PUBLIC THROUGH ITS ELECTED
AND APPOINTED LAW ENFORCEMENT OFFICERS REGULARLY UTILIZES INFORMERS,
AND IN PROPER CIRCUMSTANCES MAY ASSERT A PRIVILEGE AGAINST DISCLOSING
THE IDENTITY OF THESE INFORMERS.  BUT 

"(THE PURPOSE OF THE PRIVILEGE IS THE FURTHERANCE AND PROTECTION OF
THE PUBLIC INTEREST IN EFFECTIVE LAW ENFORCEMENT.  THE PRIVILEGE
RECOGNIZES THE OBLIGATION OF CITIZENS TO COMMUNICATE THEIR KNOWLEDGE OF
THE COMMISSION OF CRIMES TO LAW-ENFORCEMENT OFFICIALS AND, BY
PRESERVING THEIR ANONYMITY, ENCOURAGES THEM TO PERFORM THAT
OBLIGATION."  ROVIARO V. UNITED STATES, 353 U.S. 53, 59 (1957).  SUCH
INFORMERS ENJOY NO CONSTITUTIONAL PROTECTION.  THEIR TESTIMONY IS
AVAILABLE TO THE PUBLIC WHEN DESIRED BY GRAND JURIES OR AT CRIMINAL
TRIALS; THEIR IDENTITY CANNOT BE CONCEALED FROM THE DEFENDANT WHEN IT
IS CRITICAL TO HIS CASE.  ID., AT 60-61, 62; MCCRAY V. ILLINOIS, 386
U.S. 300, 310 (1967); SMITH V. ILLINOIS, 390 U.S. 129, 131 (1968);
ALFORD V. UNITED STATES, 282 U.S. 687, 693 (1931).  CLEARLY, THIS
SYSTEM IS NOT IMPERVIOUS TO CONTROL BY THE JUDICIARY AND THE DECISION
WHETHER TO UNMASK AN INFORMER OR TO CONTINUE TO PROFIT BY HIS ANONYMITY
IS IN PUBLIC, NOT PRIVATE, HANDS.  WE THINK THAT IT SHOULD REMAIN THERE
AND THAT PUBLIC AUTHORITIES SHOULD RETAIN THE OPTIONS OF EITHER
INSISTING ON THE INFORMER'S TESTIMONY RELEVANT TO THE PROSECUTION OF
CRIME OR OF SEEKING THE BENEFIT OF FURTHER INFORMATION THAT HIS
EXPOSURE MIGHT PREVENT. 

WE ARE ADMONISHED THAT REFUSAL TO PROVIDE A FIRST AMENDMENT
REPORTER'S PRIVILEGE WILL UNDERMINE THE FREEDOM OF THE PRESS TO COLLECT
AND DISSEMINATE NEWS.  BUT THIS IS NOT THE LESSON HISTORY TEACHES US.
AS NOTED PREVIOUSLY, THE COMMON LAW RECOGNIZED NO SUCH PRIVILEGE, AND
THE CONSTITUTIONAL ARGUMENT WAS NOT EVEN ASSERTED UNTIL 1958.  FROM THE
BEGINNING OF OUR COUNTRY THE PRESS HAS OPERATED WITHOUT CONSTITUTIONAL
PROTECTION FOR PRESS INFORMANTS, AND THE PRESS HAS FLOURISHED.  THE
EXISTING CONSTITUTIONAL RULES HAVE NOT BEEN A SERIOUS OBSTACLE TO
EITHER THE DEVELOPMENT OR RETENTION OF CONFIDENTIAL NEWS SOURCES BY THE
PRESS.  /37/ 

IT IS SAID THAT CURRENTLY PRESS SUBPOENAS HAVE MULTIPLIED, /38/
THAT MUTUAL DISTRUST AND TENSION BETWEEN PRESS AND OFFICIALDOM HAVE
INCREASED, THAT REPORTING STYLES HAVE CHANGED, AND THAT THERE IS NOW
MORE NEED FOR CONFIDENTIAL SOURCES, PARTICULARLY WHERE THE PRESS SEEKS
NEWS ABOUT MINORITY CULTURAL AND POLITICAL GROUPS OR DISSIDENT
ORGANIZATIONS SUSPICIOUS OF THE LAW AND PUBLIC OFFICIALS.  THESE
DEVELOPMENTS, EVEN IF TRUE, ARE TREACHEROUS GROUNDS FOR A FAR-REACHING
INTERPRETATION OF THE FIRST AMENDMENT FASTENING A NATIONWIDE RULE ON
COURTS, GRAND JURIES, AND PROSECUTING OFFICIALS EVERYWHERE.  THE
OBLIGATION TO TESTIFY IN RESPONSE TO GRAND JURY SUBPOENAS WILL NOT
THREATEN THESE SOURCES NOT INVOLVED WITH CRIMINAL CONDUCT AND WITHOUT
INFORMATION RELEVANT TO GRAND JURY INVESTIGATIONS, AND WE CANNOT HOLD
THAT THE CONSTITUTION PLACES THE SOURCES IN THESE TWO CATEGORIES EITHER
ABOVE THE LAW OR BEYOND ITS REACH. 

THE ARGUMENT FOR SUCH A CONSTITUTIONAL PRIVILEGE RESTS HEAVILY ON
THOSE CASES HOLDING THAT THE INFRINGEMENT OF PROTECTED FIRST AMENDMENT
RIGHTS MUST BE NO BROADER THAN NECESSARY TO ACHIEVE A PERMISSIBLE
GOVERNMENTAL PURPOSE, SEE CASES CITED AT N. 19, SUPRA.  WE DO NOT DEAL,
HOWEVER, WITH A GOVERNMENTAL INSTITUTION THAT HAS ABUSED ITS PROPER
FUNCTION, AS A LEGISLATIVE COMMITTEE DOES WHEN IT "EXPOSES) FOR THE
SAKE OF EXPOSURE."  WATKINS V. UNITED STATES, 354 U.S. 178, 200
(1957).  NOTHING IN THE RECORD INDICATES THAT THESE GRAND JURIES WERE
"PROBING) AT WILL AND WITHOUT RELATION TO EXISTING NEED."  DEGREGORY V.
ATTORNEY GENERAL OF NEW HAMPSHIRE, 383 U.S. 825, 829 (1966).  NOR DID
THE GRAND JURIES ATTEMPT TO INVADE PROTECTED FIRST AMENDMENT RIGHTS BY
FORCING WHOLESALE DISCLOSURE OF NAMES AND ORGANIZATIONAL AFFILIATIONS
FOR A PURPOSE THAT WAS NOT GERMAINE TO THE DETERMINATION OF WHETHER
CRIME HAS BEEN COMMITTED, CF. NAACP V. ALABAMA, 357 U.S. 449 (1958);
NAACP V. BUTTON, 371 U.S. 415 (1963); BATES V. LITTLE ROCK, 361 U.S.
516 (1960), AND THE CHARACTERISTIC SECRECY OF GRAND JURY PROCEEDINGS IS
A FURTHER PROTECTION AGAINST THE UNDUE INVASION OF SUCH RIGHTS.  SEE
FED. RULE CRIM. PROC. 6(E).  THE INVESTIGATIVE POWER OF THE GRAND JURY
IS NECESSARILY BROAD IF ITS PUBLIC RESPONSIBILITY IS TO BE ADEQUATELY
DISCHARGED.  COSTELLO V. UNITED STATES, 350 U.S.,AT 364. 

THE REQUIREMENTS OF THOSE CASES, SEE N. 18, SUPRA, WHICH HOLD THAT A
STATE'S INTEREST MUST BE "COMPELLING" OR "PARAMOUNT" TO JUSTIFY EVEN AN
INDIRECT BURDEN ON FIRST AMENDMENT RIGHTS, ARE ALSO MET HERE.  AS WE
HAVE INDICATED, THE INVESTIGATION OF CRIME BY THE GRAND JURY IMPLEMENTS
A FUNDAMENTAL GOVERNMENTAL ROLE OF SECURING THE SAFETY OF THE PERSON
AND PROPERTY OF THE CITIZEN, AND IT APPEARS TO US THAT CALLING
REPORTERS TO GIVE TESTIMONY IN THE MANNER AND FOR THE REASONS THAT
OTHER CITIZENS ARE CALLED "BEARS A REASONABLE RELATIONSHIP TO THE
ACHIEVEMENT OF THE GOVERNMENTAL PURPOSE ASSERTED AS ITS
JUSTIFICATION."  BATES V. LITTLE ROCK, SUPRA, AT 525.  IT THE TEST IS
THAT THE GOVERNMENT "CONVINCINGLY SHOW A SUBSTANTIAL RELATION BETWEEN
THE INFORMATION SOUGHT AND A SUBJECT OF OVERRIDING AND COMPELLING STATE
INTEREST," GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE, 372
U.S. 539, 546 (1963), IT IS QUITE APPARENT (1) THAT THE STATE HAS THE
NECESSARY INTEREST IN EXTIRPATING THE TRAFFIC IN ILLEGAL DRUGS, IN
FORESTALLING ASSASSINATION ATTEMPTS ON THE PRESIDENT, AND IN PREVENTING
THE COMMUNITY FROM BEING DISRUPTED BY VIOLENT DISORDERS ENDANGERING
BOTH PERSONS AND PROPERTY; AND (2) THAT, BASED ON THE STORIES BRANZBURG
AND CALDWELL WROTE AND PAPPAS' ADMITTED CONDUCT, THE GRAND JURY CALLED
THESE REPORTERS AS THEY WOULD OTHERS-- BECAUSE IT WAS LIKELY THAT THEY
COULD SUPPLY INFORMATION TO HELP THE GOVERNMENT DETERMINE WHETHER
ILLEGAL CONDUCT HAD OCCURRED AND, IF IT HAD, WHETHER THERE WAS
SUFFICIENT EVIDENCE TO RETURN AN INDICTMENT. 

SIMILAR CONSIDERATIONS DISPOSE OF THE REPORTERS' CLAIMS THAT
PRELIMINARY TO REQUIRING THEIR GRAND JURY APPEARANCE, THE STATE MUST
SHOW THAT A CRIME HAS BEEN COMMITTED AND THAT THEY POSSESS RELEVANT
INFORMATION NOT AVAILABLE FROM OTHER SOURCES, FOR ONLY THE GRAND JURY
ITSELF CAN MAKE THIS DETERMINATION.  THE ROLE OF THE GRAND JURY AS AN
IMPORTANT INSTRUMENT OF EFFECTIVE LAW ENFORCEMENT NECESSARILY INCLUDES
AN INVESTIGATORY FUNCTION WITH RESPECT TO DETERMINING WHETHER A CRIME
HAS BEEN COMMITTED AND WHO COMMITTED IT.  TO THIS END IT MUST CALL
WITNESSES, IN THE MANNER BEST SUITED TO PERFORM ITS TASK.  "WHEN THE
GRAND JURY IS PERFORMING ITS INVESTIGATORY FUNCTION INTO A GENERAL
PROBLEM AREA . . . SOCIETY'S INTEREST IS BEST SERVED BY A THOROUGH AND
EXTENSIVE INVESTIGATION."  WOOD V. GEORGIA, 370 U.S. 375, 392 (1962). 
A GRAND JURY INVESTIGATION "IS NOT FULLY CARRIED OUT UNTIL EVERY
AVAILABLE CLUE HAS BEEN RUN DOWN AND ALL WITNESSES EXAMINED IN EVERY
PROPER WAY TO FIND IF A CRIME HAS BEEN COMMITTED."  UNITED STATES V.
STONE, 429 F.2D 138, 140 (CA2 1970).  SUCH AN INVESTIGATION MAY BE
TRIGGERED BY TIPS, RUMORS, EVIDENCE PROFFERED BY THE PROSECUTOR, OR THE
PERSONAL KNOWLEDGE OF THE GRAND JURORS.  COSTELLO V. UNITED STATES, 350
U.S.,AT 362.  IT IS ONLY AFTER THE GRAND JURY HAS EXAMINED THE EVIDENCE
THAT A DETERMINATION OF WHETHER THE PROCEEDING WILL RESULT IN AN
INDICTMENT CAN BE MADE. 

"IT IS IMPOSSIBLE TO CONCEIVE THAT IN SUCH CASES THE EXAMINATION OF
WITNESSES MUST BE STOPPED UNTIL A BASIS IS LAID BY AN INDICTMENT
FORMALLY PREFERRED, WHEN THE VERY OBJECT OF THE EXAMINATION IS TO
ASCERTAIN WHO SHALL BE INDICTED."  HALE V. HENKEL, 201 U.S. 43, 65
(1906).  SEE ALSO HENDRICKS V. UNITED STATES, 223 U.S. 178 (1912);
BLAIR V. UNITED STATES, 250 U.S.,AT 282-283.  WE SEE NO REASON TO HOLD
THAT THESE REPORTERS, ANY MORE THAN OTHER CITIZENS, SHOULD BE EXCUSED
FROM FURNISHING INFORMATION THAT MAY HELP THE GRAND JURY IN ARRIVING AT
ITS INITIAL DETERMINATIONS. 

THE PRIVILEGE CLAIMED HERE IS CONDITIONAL, NOT ABSOLUTE; GIVEN THE
SUGGESTED PRELIMINARY SHOWINGS AND COMPELLING NEED, THE REPORTER WOULD
BE REQUIRED TO TESTIFY.  PRESUMABLY, SUCH A RULE WOULD REDUCE THE
INSTANCES IN WHICH REPORTERS COULD BE REQUIRED TO APPEAR, BUT
PREDICTING IN ADVANCE WHEN AND IN WHAT CIRCUMSTANCES THEY COULD BE
COMPELLED TO DO SO WOULD BE DIFFICULT.  SUCH A RULE WOULD ALSO HAVE
IMPLICATIONS FOR THE ISSUANCE OF COMPULSORY PROCESS TO REPORTERS AT
CIVIL AND CRIMINAL TRIALS AND AT LEGISLATIVE HEARINGS.  IF NEWSMEN'S
CONFIDENTIAL SOURCES ARE AS SENSITIVE AS THEY ARE CLAIMED TO BE, THE
PROSPECT OF BEING UNMASKED WHENEVER A JUDGE DETERMINES THE SITUATION
JUSTIFIES IT IS HARDLY A SATISFACTORY SOLUTION TO THE PROBLEM.  /39/
FOR THEM, IT WOULD APPEAR THAT ONLY AN ABSOLUTE PRIVILEGE WOULD
SUFFICE. 

WE ARE UNWILLING TO EMBARK THE JUDICIARY ON A LONG AND DIFFICULT
JOURNEY TO SUCH AN UNCERTAIN DESTINATION.  THE ADMINISTRATION OF A
CONSTITUTIONAL NEWSMAN'S PRIVILEGE WOULD PRESENT PRACTICAL AND
CONCEPTUAL DIFFICULTIES OF A HIGH ORDER.  SOONER OR LATER, IT WOULD BE
NECESSARY TO DEFINE THOSE CATEGORIES OF NEWSMEN WHO QUALIFIED FOR THE
PRIVILEGE, A QUESTIONABLE PROCEDURE IN LIGHT OF THE TRADITIONAL
DOCTRINE THAT LIBERTY OF THE PRESS IS THE RIGHT OF THE LONELY
PAMPHLETEER WHO USES CARBON PAPER OR A MIMEOGRAPH JUST AS MUCH AS OF
THE LARGE METROPOLITAN PUBLISHER WHO UTILIZES THE LATEST
PHOTOCOMPOSITION METHODS.  CF. IN RE GRAND JURY WITNESSES, 322 F.SUPP. 
573, 574 (ND CAL. 1970).  FREEDOM OF THE PRESS IS A "FUNDAMENTAL
PERSONAL RIGHT" WHICH "IS NOT CONFINED TO NEWSPAPERS AND PERIODICALS. 
IT NECESSARILY EMBRACES PAMPHLETS AND LEAFLETS.  . . . THE PRESS IN ITS
HISTORIC CONNOTATION COMPREHENDS EVERY SORT OF PUBLICATION WHICH
AFFORDS A VEHICLE OF INFORMATION AND OPINION."  LOVELL V. GRIFFIN, 303
U.S. 444, 450, 452 (1938).  SEE ALSO MILLS V. ALABAMA, 384 U.S. 214,
219 (1966); MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 111 (1943).  THE
INFORMATIVE FUNCTION ASSERTED BY REPRESENTATIVES OF THE ORGANIZED PRESS
IN THE PRESENT CASES IS ALSO PERFORMED BY LECTURERS, POLITICAL
POLLSTERS, NOVELISTS, ACADEMIC RESEARCHERS, AND DRAMATISTS.  ALMOST ANY
AUTHOR MAY QUITE ACCURATELY ASSERT THAT HE IS CONTRIBUTING TO THE FLOW
OF INFORMATION TO THE PUBLIC, THAT HE RELIES ON CONFIDENTIAL SOURCES OF
INFORMATION, AND THAT THESE SOURCES WILL BE SILENCED IF HE IS FORCED TO
MAKE DISCLOSURES BEFORE A GRAND JURY.  /40/ 

IN EACH INSTANCE WHERE A REPORTER IS SUBPOENAED TO TESTIFY, THE
COURTS WOULD ALSO BE EMBROILED IN PRELIMINARY FACTUAL AND LEGAL
DETERMINATIONS WITH RESPECT TO WHETHER THE PROPER PREDICATE HAD BEEN
LAID FOR THE REPORTER'S APPEARANCE:  IS THERE PROBABLE CAUSE TO BELIEVE
A CRIME HAS BEEN COMMITTED?  IS IT LIKELY THAT THE REPORTER HAS USEFUL
INFORMATION GAINED IN CONFIDENCE?  COULD THE GRAND JURY OBTAIN THE
INFORMATION ELSEWHERE?  IS THE OFFICIAL INTEREST SUFFICIENT TO OUTWEIGH
THE CLAIMED PRIVILEGE? 

THUS, IN THE END, BY CONSIDERING WHETHER ENFORCEMENT OF A PARTICULAR
LAW SERVED A "COMPELLING" GOVERNMENTAL INTEREST, THE COURTS WOULD BE
INEXTRICABLY INVOLVED IN DISTINGUISHING BETWEEN THE VALUE OF ENFORCING
DIFFERENT CRIMINAL LAWS.  BY REQUIRING TESTIMONY FROM A REPORTER IN
INVESTIGATIONS INVOLVING SOME CRIMES BUT NOT IN OTHERS, THEY WOULD BE
MAKING A VALUE JUDGMENT THAT A LEGISLATURE HAD DECLINED TO MAKE, SINCE
IN EACH CASE THE CRIMINAL LAW INVOLVED WOULD REPRESENT A CONSIDERED
LEGISLATIVE JUDGMENT, NOT CONSTITUTIONALLY SUSPECT, OF WHAT CONDUCT IS
LIABLE TO CRIMINAL PROSECUTION.  THE TASK OF JUDGES, LIKE OTHER
OFFICIALS OUTSIDE THE LEGISLATIVE BRANCH, IS NOT TO MAKE THE LAW BUT TO
UPHOLD IT IN ACCORDANCE WITH THEIR OATHS. 

AT THE FEDERAL LEVEL, CONGRESS HAS FREEDOM TO DETERMINE WHETHER A
STATUTORY NEWSMAN'S PRIVILEGE IS NECESSARY AND DESIRABLE AND TO FASHION
STANDARDS AND RULES AS NARROW OR BROAD AS DEEMED NECESSARY TO DEAL WITH
THE EVIL DISCERNED AND, EQUALLY IMPORTANT, TO REFASHION THOSE RULES AS
EXPERIENCE FROM TIME TO TIME MAY DICTATE.  THERE IS ALSO MERIT IN
LEAVING STATE LEGISLATURES FREE, WITHIN FIRST AMENDMENT LIMITS, TO
FASHION THEIR OWN STANDARDS IN LIGHT OF THE CONDITIONS AND PROBLEMS
WITH RESPECT TO THE RELATIONS BETWEEN LAW ENFORCEMENT OFFICIALS AND
PRESS IN THEIR OWN AREAS.  IT GOES WITHOUT SAYING, OF COURSE, THAT WE
ARE POWERLESS TO BAR STATE COURTS FROM RESPONDING IN THEIR OWN WAY AND
CONSTRUING THEIR OWN CONSTITUTIONS SO AS TO RECOGNIZE A NEWSMAN'S
PRIVILEGE, EITHER QUALIFIED OR ABSOLUTE. 

IN ADDITION, THERE IS MUCH FORCE IN THE PRAGMATIC VIEW THAT THE
PRESS HAS AT ITS DISPOSAL POWERFUL MECHANISMS OF COMMUNICATION AND IS
FAR FROM HELPLESS TO PROTECT ITSELF FROM HARASSMENT OR SUBSTANTIAL
HARM.  FURTHERMORE, IF WHAT THE NEWSMEN URGED IN THESE CASES IS TRUE--
THAT LAW ENFORCEMENT CANNOT HOPE TO GAIN AND MAY SUFFER FROM
SUBPOENAING NEWSMEN BEFORE GRAND JURIES-- PROSECUTORS WILL BE LOATH TO
RISK SO MUCH FOR SO LITTLE.  THUS, AT THE FEDERAL LEVEL THE ATTORNEY
GENERAL HAS ALREADY FASHIONED A SET OF RULES FOR FEDERAL OFFICIALS IN
CONNECTION WITH SUBPOENAING MEMBERS OF THE PRESS TO TESTIFY BEFORE
GRAND JURIES OR AT CRIMINAL TRIALS.  /41/  THESE RULES ARE A MAJOR STEP
IN THE DIRECTION THE REPORTERS HEREIN DESIRE TO MOVE.  THEY MAY PROVE
WHOLLY SUFFICIENT TO RESOLVE THE BULK OF DISAGREEMENTS AND
CONTROVERSIES BETWEEN PRESS AND FEDERAL OFFICIALS.     FINALLY, AS WE
HAVE EARLIER INDICATED, NEWS GATHERING IS NOT WITHOUT ITS FIRST
AMENDMENT PROTECTIONS, AND GRAND JURY INVESTIGATIONS IF INSTITUTED OR
CONDUCTED OTHER THAN IN GOOD FAITH, WOULD POSE WHOLLY DIFFERENT ISSUES
FOR RESOLUTION UNDER THE FIRST AMENDMENT.  /42/  OFFICIAL HARASSMENT OF
THE PRESS UNDERTAKEN NOT FOR PURPOSES OF LAW ENFORCEMENT BUT TO DISRUPT
A REPORTER'S RELATIONSHIP WITH HIS NEWS SOURCES WOULD HAVE NO
JUSTIFICATION.  GRAND JURIES ARE SUBJECT TO JUDICIAL CONTROL AND
SUBPOENAS TO MOTIONS TO QUASH.  WE DO NOT EXPECT COURTS WILL FORGET
THAT GRAND JURIES MUST OPERATE WITHIN THE LIMITS OF THE FIRST AMENDMENT
AS WELL AS THE FIFTH. 

        III     WE TURN, THEREFORE, TO THE DISPOSITION OF THE CASES
BEFORE US.  FROM WHAT WE HAVE SAID, IT NECESSARILY FOLLOWS THAT THE
DECISION IN UNITED STATES V. CALDWELL, NO 70-57, MUST BE REVERSED.  IF
THERE IS NO FIRST AMENDMENT PRIVILEGE TO REFUSE TO ANSWER THE RELEVANT
AND MATERIAL QUESTIONS ASKED DURING A GOOD-FAITH GRAND JURY
INVESTIGATION, THEN IT IS A FORTIORI TRUE THAT THERE IS NO PRIVILEGE TO
REFUSE TO APPEAR BEFORE SUCH A GRAND JURY UNTIL THE GOVERNMENT
DEMONSTRATES SOME "COMPELLING NEED" FOR A NEWSMAN'S TESTIMONY.  OTHER
ISSUES WERE URGED UPON US, BUT SINCE THEY WERE NOT PASSED UPON BY THE
COURT OF APPEALS, WE DECLINE TO ADDRESS THEM IN THE FIRST INSTANCE. 

THE DECISIONS IN NO. 70-85, BRANZBURG V. HAYES AND BRANZBURG V.
MEIGS, MUST BE AFFIRMED.  THERE, PETITIONER REFUSED TO ANSWER QUESTIONS
THAT DIRECTLY RELATED TO CRIMINAL CONDUCT THAT HE HAD OBSERVED AND
WRITTEN ABOUT.  THE KENTUCKY COURT OF APPEALS NOTED THAT MARIHUANA IS
DEFINED AS A NARCOTIC DRUG BY STATUTE, KY. REV. STAT. SEC. 218.010(14)
(1962), AND THAT UNLICENSED POSSESSION OR COMPOUNDING OF IT IS A FELONY
PUNISHABLE BY BOTH FINE AND IMPRISONMENT.  KY. REV. STAT. SEC. 218.210
(1962).  IT HELD THAT PETITTIONER "SAW THE COMMISSION OF THE STATUTORY
FELONIES OF UNLAWFUL POSSESSION OF MARIJUANA AND THE UNLAWFUL
CONVERSION OF IT INTO HASHISH," IN BRANZBURG V. POUND, 461 S.W.2D, AT
346.  PETITIONER MAY BE PRESUMED TO HAVE OBSERVED SIMILAR VIOLATIONS OF
THE STATE NARCOTICS LAWS DURING THE RESEARCH HE DID FOR THE STORY THAT
FORMS THE BASIS OF THE SUBPOENA IN BRANZBURG V. MEIGS.  IN BOTH CASES,
IF WHAT PETITIONER WROTE WAS TRUE, HE HAD DIRECT INFORMATION TO PROVIDE
THE GRAND JURY CONCERNING THE COMMISSION OF SERIOUS CRIMES. 

THE ONLY QUESTION PRESENTED AT THE PRESENT TIME IN IN RE PAPPAS, NO.
70-94, IS WHETHER PETITIONER PAPPAS MUST APPEAR BEFORE THE GRAND JURY
TO TESTIFY PURSUANT TO SUBPOENA.  THE MASSACHUSETTS SUPREME JUDICIAL
COURT CHARACTERIZED THE RECORD IN THIS CASE AS "MEAGER," AND IT IS NOT
CLEAR WHAT PETITIONER WILL BE ASKED BY THE GRAND JURY.  IT IS NOT EVEN
CLEAR THAT HE WILL BE ASKED TO DIVULGE INFORMATION RECEIVED IN
CONFIDENCE.  WE AFFIRM THE DECISION OF THE MASSACHUSETTS SUPREME
JUDICIAL COURT AND HOLD THAT PETITIONER MUST APPEAR BEFORE THE GRAND
JURY TO ANSWER THE QUESTIONS PUT TO HIM, SUBJECT, OF COURSE, TO THE
SUPERVISION OF THE PRESIDING JUDGE AS TO "THE PROPRIETY, PURPOSES, AND
SCOPE OF THE GRAND JURY INQUIRY AND THE PERTINENCE OF THE PROBABLE
TESTIMONY."  358 MASS.,AT 614, 266 N.E.2D, AT 303-304. 

 SO ORDERED. 

/0/  TOGETHER WITH NO. 70-94, IN RE PAPPAS, ON CERTIORARI TO THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS, ALSO ARGUED FEBRUARY 23, 1972,
AND NO. 70-57, UNITED STATES V. CALDWELL, ON CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, ARGUED FEBRUARY 22,
1972. 

/1/  THE ARTICLE CONTAINED THE FOLLOWING PARAGRAPH:  "'I DON'T KNOW
WHY I'M LETTING YOU DO THIS STORY,' (ONE INFORMANT) SAID QUIETLY.  'TO
MAKE THE NARCS (NARCOTICS DETECTIVES) MAD, I GUESS.  THAT'S THE MAIN
REASON.'  HOWEVER, LARRY AND HIS PARTNER ASKED FOR AND RECEIVED A
PROMISE THAT THEIR NAMES WOULD BE CHANGED."  APP. 3-4. 

/2/  THE FOREMAN OF THE GRAND JURY REPORTED THAT PETITIONER
BRANZBURG HAD REFUSED TO ANSWER THE FOLLOWING TWO QUESTIONS:  "#1.  ON
NOVEMBER 12, OR 13, 1969, WHO WAS THE PERSON OR PERSONS YOU OBSERVED IN
POSSESSION OF MARIJUANA, ABOUT WHICH YOU WROTE AN ARTICLE IN THE
COURIER-JOURNAL ON NOVEMBER 15, 1969?  #2.  ON NOVEMBER 12, OR 13,
1969, WHO WAS THE PERSON OR PERSONS YOU OBSERVED COMPOUNDING MARIJUANA,
PRODUCING SAME TO A COMPOUND KNOWN AS HASHISH?"  APP. 6. 

/3/  JUDGE J. MILES POUND.  THE RESPONDENT IN THIS CASE, HON. JOHN
P. HAYES, IS THE SUCCESSOR OF JUDGE POUND. 

/4/  KY. REV. STAT. SEC. 421.100 PROVIDES: 

"NO PERSON SHALL BE COMPELLED TO DISCLOSE IN ANY LEGAL PROCEEDING OR
TRIAL BEFORE ANY COURT, OR BEFORE ANY GRAND OR PETIT JURY, OR BEFORE
THE PRESIDING OFFICER OF ANY TRIBUNAL, OR HIS AGENT OR AGENTS, OR
BEFORE THE GENERAL ASSEMBLY, OR ANY COMMITTEE THEREOF, OR BEFORE ANY
CITY OR COUNTY LEGISLATIVE BODY, OR ANY COMMITTEE THEREOF, OR
ELSEWHERE, THE SOURCE OF ANY INFORMATION PROCURED OR OBTAINED BY HIM,
AND PUBLISHED IN A NEWSPAPER OR BY A RADIO OR TELEVISION BROADCASTING
STATION BY WHICH HE IS ENGAGED OR EMPLOYED, OR WITH WHICH HE IS
CONNECTED." 

/5/  PETITIONER'S MOTION TO QUASH ARGUED: 

"IF MR. BRANZBURG WERE REQUIRED TO DISCLOSE THESE CONFIDENCES TO THE
GRAND JURY, OR ANY OTHER PERSON, HE WOULD THEREBY DESTROY THE
RELATIONSHIP OF TRUST WHICH HE PRESENTLY ENJOYS WITH THOSE IN THE DRUG
CULTURE.  THEY WOULD REFUSE TO SPEAK TO HIM; THEY WOULD BECOME EVEN
MORE RELUCTANT THAN THEY ARE NOW TO SPEAK TO ANY NEWSMAN; AND THE NEWS
MEDIA WOULD THEREBY BE VITALLY HAMPERED IN THEIR ABILITY TO COVER THE
VIEWS AND ACTIVITIES OF THOSE INVOLVED IN THE DRUG CULTURE. 

"THE INEVITABLE EFFECT OF THE SUBPOENA ISSUED TO MR. BRANZBURG, IF
IT NOT BE QUASHED BY THIS COURT, WILL BE TO SUPPRESS VITAL FIRST
AMENDMENT FREEDOMS OF MR. BRANZBURG, OF THE COURIER-JOURNAL, OF THE
NEWS MEDIA, AND OF THOSE INVOLVED IN THE DRUG CULTURE BY DRIVING A
WEDGE OF DISTRUST AND SILENCE BETWEEN THE NEWS MEDIA AND THE DRUG
CULTURE.  THIS COURT SHOULD NOT SANCTION A USE OF ITS PROCESS ENTAILING
SO DRASTIC AN INCURSION UPON FIRST AMENDMENT FREEDOMS IN THE ABSENCE OF
COMPELLING COMMONWEALTH INTEREST IN REQUIRING MR. BRANZBURG'S
APPEARANCE BEFORE THE GRAND JURY.  IT IS INSUFFICIENT MERELY TO PROTECT
MR. BRANZBURG'S RIGHT TO SILENCE AFTER HE APPEARS BEFORE THE GRAND
JURY.  THIS COURT SHOULD TOTALLY EXCUSE MR. BRANZBURG FROM RESPONDING
TO THE SUBPOENA AND EVEN ENTERING THE GRAND JURY ROOM.  ONCE MR.
BRANZBURG IS REQUIRED TO GO BEHIND THE CLOSED DOORS OF THE GRAND JURY
ROOM, HIS EFFECTIVENESS AS A REPORTER IN THESE AREAS IS TOTALLY
DESTROYED.  THE SECRECY THAT SURROUNDS GRAND JURY TESTIMONY NECESSARILY
INTRODUCES UNCERTAINTIES IN THE MINDS OF THOSE WHO FEAR A BETRAYAL OF
THEIR CONFIDENCES."  APP. 43-44. 

/6/  AFTER THE KENTUCKY COURT OF APPEALS' DECISION IN BRANZBURG V.
MEIGS WAS ANNOUNCED, PETITIONER FILED A REHEARING MOTION IN BRANZBURG
V. POUND SUGGESTING THAT THE COURT HAD NOT PASSED UPON HIS FIRST
AMENDMENT ARGUMENT AND CALLING TO THE COURT'S ATTENTION THE RECENT
NINTH CIRCUIT DECISION IN CALDWELL V. UNITED STATES, 434 F.2D 1081
(1970).  ON JAN. 22, 1971, THE COURT DENIED PETITIONER'S MOTION AND
FILED AN AMENDED OPINION IN THE CASE, ADDING A FOOTNOTE, 461 S.W.2D
345, 346 N. 1, TO INDICATE THAT PETITIONER HAD ABANDONED HIS FIRST
AMENDMENT ARGUMENT AND ELECTED TO RELY WHOLLY ON KY. REV. STAT. SEC.
421.100 WHEN HE FILED A SUPPLEMENTAL MEMORANDUM BEFORE ORAL ARGUMENT. 
IN HIS PETITION FOR PROHIBITION AND MANDAMUS, PETITIONER HAD CLEARLY
RELIED ON THE FIRST AMENDMENT, AND HE HAD FILED HIS SUPPLEMENTAL
MEMORANDUM IN RESPONSE TO THE STATE'S MEMORANDUM IN OPPOSITION TO THE
GRANTING OF THE WRITS.  AS ITS TITLE INDICATES, THIS MEMORANDUM WAS
COMPLEMENTARY TO PETITIONER'S EARLIER PETITION, AND IT DEALT PRIMARILY
WITH THE STATE'S CONSTRUCTION OF THE PHRASE "SOURCE OF ANY INFORMATION"
IN KY. REV. STAT. SEC. 421.100.  THE PASSAGE THAT THE KENTUCKY COURT OF
APPEALS CITED TO INDICATE ABANDONMENT OF PETITIONER'S FIRST AMENDMENT
CLAIM IS AS FOLLOWS: 

"THUS, THE CONTROVERSY CONTINUES AS TO WHETHER A NEWSMAN'S SOURCE OF
INFORMATION SHOULD BE PRIVILEGED.  HOWEVER, THAT QUESTION IS NOT BEFORE
THE COURT IN THIS CASE.  THE LEGISLATURE OF KENTUCKY HAS SETTLED THE
ISSUE, HAVING DECIDED THAT A NEWSMAN'S SOURCE OF INFORMATION IS TO BE
PRIVILEGED.  BECAUSE OF THIS THERE IS NO POINT IN CITING PROFESSOR
WIGMORE AND OTHER AUTHORITIES WHO SPEAK AGAINST THE GRANT OF SUCH A
PRIVILEGE.  THE QUESTION HAS BEEN MANY TIMES DEBATED, AND THE
LEGISLATURE HAS SPOKEN.  THE ONLY QUESTION BEFORE THE COURT IS THE
CONSTRUCTION OF THE TERM 'SOURCE OF INFORMATION' AS IT WAS INTENDED BY
THE LEGISLATURE." 

THOUGH THE PASSAGE ITSELF IS SOMEWHAT UNCLEAR, THE SURROUNDING
DISCUSSION INDICATES THAT PETITIONER WAS ASSERTING HERE THAT THE
QUESTION OF WHETHER A COMMON-LAW PRIVILEGE SHOULD BE RECOGNIZED WAS
IRRELEVANT SINCE THE LEGISLATURE HAD ALREADY ENACTED A STATUTE.  IN HIS
EARLIER DISCUSSION, PETITIONER HAD ANALYZED CERTAIN CASES IN WHICH THE
FIRST AMENDMENT ARGUMENT WAS MADE BUT INDICATED THAT IT WAS NOT
NECESSARY TO REACH THIS QUESTION IF THE STATUTORY PHRASE "SOURCE OF ANY
INFORMATION" WERE INTERPRETED EXPANSIVELY.  WE DO NOT INTERPRET THIS
DISCUSSION AS INDICATING THAT PETITIONER WAS ABANDONING HIS FIRST
AMENDMENT CLAIM IF THE KENTUCKY COURT OF APPEALS DID NOT AGREE WITH HIS
STATUTORY INTERPRETATION ARGUMENT, AND WE HOLD THAT THE CONSTITUTIONAL
QUESTION IN BRANZBURG V. POUND WAS PROPERLY PRESERVED FOR REVIEW. 

/7/  PETITIONER'S NEWS FILMS OF THIS EVENT WERE MADE AVAILABLE TO
THE BRISTOL COUNTY DISTRICT ATTORNEY.  APP. 4. 

/8/  THE CASE WAS REPORTED BY THE SUPERIOR COURT DIRECTLY TO THE
SUPREME JUDICIAL COURT FOR AN INTERLOCUTORY RULING UNDER MASS. GEN.
LAWS, C. 278, SEC. 30A AND MASS. GEN. LAWS, C. 231, SEC. 111 (1959). 
THE SUPREME JUDICIAL COURT'S DECISION APPEARS AT 358 MASS. 604, 266
N.E.2D 297 (1971). 

/9/  "WE DO NOT HAVE BEFORE US THE TEXT OF ANY SPECIFIC QUESTIONS
WHICH PAPPAS HAS REFUSED TO ANSWER BEFORE THE GRAND JURY, OR ANY
PETITION TO HOLD HIM FOR CONTEMPT FOR HIS REFUSAL.  WE HAVE ONLY
GENERAL STATEMENTS CONCERNING (A) THE INQUIRIES OF THE GRAND JURY, AND
(B) THE MATERIALITY OF THE TESTIMONY SOUGHT FROM PAPPAS.  THE RECORD
DOES NOT SHOW THE EXPECTED NATURE OF HIS TESTIMONY OR WHAT LIKELIHOOD
THERE IS OF BEING ABLE TO OBTAIN THAT TESTIMONY FROM PERSONS OTHER THAN
NEWS GATHERERS."  358 MASS.,AT 606-607, 266 N.E.2D, AT 299 (FOOTNOTE
OMITTED). 

/10/  THE COURT EXPRESSLY DECLINED TO CONSIDER, HOWEVER, APPEARANCES
OF NEWSMEN BEFORE LEGISLATIVE OR ADMINISTRATIVE BODIES.  ID., AT 612 N.
10, 266 N.E.2D, AT 303 N. 10. 

/11/  THE COURT NOTED THAT "A PRESIDING JUDGE MAY CONSIDER IN HIS
DISCRETION" THE ARGUMENT THAT THE USE OF NEWSMEN AS WITNESSES IS LIKELY
TO RESULT IN UNNECESSARY OR BURDENSOME USE OF THEIR WORK PRODUCT, ID.,
AT 614 N. 13, 266 N.E.2D, AT 304 N. 13, AND CAUTIONED THAT: "WE DO NOT
SUGGEST THAT A GENERAL INVESTIGATION OF MERE POLITICAL OR GROUP
ASSOCIATION OF PERSONS, WITHOUT SUBSTANTIAL RELATION TO CRIMINAL
EVENTS, MAY NOT BE VIEWED BY A JUDGE IN A SOMEWHAT DIFFERENT MANNER
FROM AN INVESTIGATION OF PARTICULAR CRIMINAL EVENTS CONCERNING WHICH A
NEWSMAN MAY HAVE KNOWLEDGE."  ID., AT 614 N. 14, 266 N.E.2D, AT 304 N.
14. 

/12/  THE SUBPOENA ORDERED PRODUCTION OF "(NOTES AND TAPE RECORDINGS
OF INTERVIEWS COVERING THE PERIOD FROM JANUARY 1, 1969, TO DATE,
REFLECTING STATEMENTS MADE FOR PUBLICATION BY OFFICERS AND SPOKESMEN
FOR THE BLACK PANTHER PARTY CONCERNING THE AIMS AND PURPOSES OF SAID
ORGANIZATION AND THE ACTIVITIES OF SAID ORGANIZATION, ITS OFFICERS,
STAFF, PERSONNEL, AND MEMBERS, INCLUDING SPECIFICALLY BUT NOT LIMITED
TO INTERVIEWS GIVEN BY DAVID HILLIARD AND RAYMOND 'MASAI'  HEWITT." 
APP. 20. 

/13/  THE NEW YORK TIMES WAS GRANTED STANDING TO INTERVENE AS A
PARTY ON THE MOTION TO QUASH THE SUBPOENAS.  APPLICATION OF CALDWELL,
311 F.SUPP 358, 359 (ND CAL. 1970).  IT DID NOT FILE AN APPEAL FROM THE
DISTRICT COURT'S CONTEMPT CITATION, AND IT DID NOT SEEK CERTIORARI
HERE.  IT HAS FILED AN AMICUS CURIAE BRIEF, HOWEVER. 

/14/  RESPONDENT APPEALED FROM THE DISTRICT COURT'S APRIL 6 DENIAL
OF HIS MOTION TO QUASH ON APRIL 17, 1970, AND THE GOVERNMENT MOVED TO
DISMISS THAT APPEAL ON THE GROUND THAT THE ORDER WAS INTERLOCUTORY.  ON
MAY 12, 1970, THE NINTH CIRCUIT DISMISSED THE APPEAL WITHOUT OPINION. 

/15/  THE GOVERNMENT DID NOT FILE A CROSS-APPEAL AND DID NOT
CHALLENGE THE VALIDITY OF THE DISTRICT COURT PROTECTIVE ORDER IN THE
COURT OF APPEALS. 

/16/  THE PETITION PRESENTED A SINGLE QUESTION:  "WHETHER A
NEWSPAPER REPORTER WHO HAS PUBLISHED ARTICLES ABOUT AN ORGANIZATION
CAN, UNDER THE FIRST AMENDMENT, PROPERLY REFUSE TO APPEAR BEFORE A
GRAND JURY INVESTIGATING POSSIBLE CRIMES BY MEMBERS OF THAT
ORGANIZATION WHO HAVE BEEN QUOTED IN THE PUBLISHED ARTICLES." 

/17/  CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 145 (1967)
(OPINION OF HARLAN, J.); NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254,
270 (1964); TALLEY V. CALIFORNIA, 362 U;S. 60, 64-65 (1960); BRIDGES V.
CALIFORNIA, 314 U.S. 252, 263 (1941); GROSJEAN V. AMERICAN PRESS CO.,
297 U.S. 233, 250 (1936); NEAR V. MINNESOTA, 283 U.S. 697, 722 (1931). 

/18/  NAACP V. BUTTON, 371 U.S. 415, 439 (1963); THOMAS V. COLLINS,
323 U.S. 516, 530 (1945); DEGREGORY V. ATTORNEY GENERAL OF NEW
HAMPSHIRE, 383 U.S. 825, 829 (1966); BATES V. LITTLE ROCK, 361 U.S.
516, 524 (1960); SCHNEIDER V. STATE, 308 U.S. 147, 161 (1939); NAACP V.
ALABAMA, 357 U.S. 449, 464 (1958). 

/19/  FREEDMAN V. MARYLAND, 380 U.S. 51, 56 (1965); NAACP V.
ALABAMA, 377 U.S. 288, 307 (1964); MARTIN V. CITY OF STRUTHERS, 319
U.S. 141, 147 (1943); ELFBRANDT V. RUSSELL, 384 U.S. 11, 18 (1966). 

/20/  THERE HAS BEEN A GREAT DEAL OF WRITING IN RECENT YEARS ON THE
EXISTENCE OF A NEWSMAN'S CONSITUTIONAL RIGHT OF NONDISCLOSURE OF
CONFIDENTIAL INFORMATION.  SEE, E.G., BEAVER, THE NEWSMAN'S CODE, THE
CLAIM OF PRIVILEGE AND EVERYMAN'S RIGHT TO EVIDENCE, 47 ORE.L.REV.  243
(1968); GUEST & STANZLER, THE CONSTITUTIONAL ARGUMENT FOR NEWSMEN
CONCEALING THEIR SOURCES, 64 NW.U.L.REV.  18 (1969); NOTE, REPORTERS
AND THEIR SOURCES:  THE CONSTITUTIONAL RIGHT TO A CONFIDENTIAL
RELATIONSHIP, 80 YALE L.J. 317 (1970); COMMENT, THE NEWSMAN'S
PRIVILEGE:  GOVERNMENT INVESTIGATIONS, CRIMINAL PROSECUTIONS AND
PRIVATE LITIGATION, 58 CALIF.L.REV.  1198 (1970); NOTE, THE RIGHT OF
THE PRESS TO GATHER INFORMATION, 71 COL.L.REV.  838 (1971); NELSON, THE
NEWSMEN'S PRIVILEGE AGAINST DISCLOSURE OF CONFIDENTIAL SOURCES AND
INFORMATION, 24 VAND.L.REV.  667 (1971).     /21/  "IN GENERAL, THEN,
THE MERE FACT THAT A COMMUNICATION WAS MADE IN EXPRESS CONFIDENCE, OR
IN THE IMPLIED CONFIDENCE OF A CONFIDENTIAL RELATION, DOES NOT CREATE A
PRIVILEGE. 

" . . . NO PLEDGE OF PRIVACY NOR OATH OF SECRECY CAN AVAIL AGAINST
DEMAND FOR THE TRUTH IN A COURT OF JUSTICE."  8 J.WIGMORE, EVIDENCE
2286 (MCNAUGHTON REV. 1961).  THIS WAS NOT ALWAYS THE RULE AT COMMON
LAW, HOWEVER.  IN 17TH CENTURY ENGLAND, THE OBLIGATIONS OF HONOR AMONG
GENTLEMEN WERE OCCASIONALLY RECOGNIZED AS PRIVILEGING FROM COMPULSORY
DISCLOSURE INFORMATION OBTAINED IN EXCHANGE FOR A PROMISE OF
CONFIDENCE.  SEE BULSTROD V. LETCHMERE, 2 FREEM.  6, 22 ENG.REP.  1019
(1676); LORD GREY'S TRIAL, 9 HOW.ST.TR. 127 (1682). 

/22/  "THERE ARE FEW RESTRICTIONS ON ACTION WHICH COULD NOT BE
CLOTHED BY INGENIOUS ARGUMENT IN THE GARB OF DECEASED DATA FLOW.  FOR
EXAMPLE, THE PROHIBITION OF UNAUTHORIZED ENTRY INTO THE WHITE HOUSE
DIMINISHES THE CITIZEN'S OPPORTUNITIES TO GATHER INFORMATION HE MIGHT
FIND RELEVANT TO HIS OPINION OF THE WAY THE COUNTRY IS BEING RUN, BUT
THAT DOES NOT MAKE ENTRY INTO THE WHITE HOUSE A FIRST AMENDMENT
RIGHT."  381 U.S.,AT 16-17. 

/23/  "HISTORICALLY, (THE GRAND JURY) HAS BEEN REGARDED AS A PRIMARY
SECURITY TO THE INNOCENT AGAINST HASTY, MALICIOUS AND OPPRESSIVE
PERSECUTION; IT SERVES THE INVALUABLE FUNCTION IN OUR SOCIETY OF
STANDING BETWEEN THE ACCUSER AND THE ACCUSED . . . TO DETERMINE WHETHER
A CHARGE IS FOUNDED UPON REASON OR WAS DICTATED BY AN INTIMIDATING
POWER OR BY MALICE AND PERSONAL ILL WILL."  WOOD V. GEORGIA, 370 U.S.
375, 390 (1962) (FOOTNOTE OMITTED). 

/24/  IT HAS BEEN HELD THAT "INFAMOUS" PUNISHMENTS INCLUDE
CONFINEMENT AT HARD LABOR, UNITED STATES V. MORELAND, 258 U.S. 433
(1922); INCARCERATION IN A PENITENTIARY, MACKIN V. UNITED STATES, 117
U.S. 348 (1886); AND IMPRISONMENT FOR MORE THAN A YEAR, BARKMAN V.
SANFORD, 162 F.2D 592 (CA5), CERT. DENIED, 332 U.S. 816 (1947).  FED.
RULE CRIM. PROC. 7(A) HAS CODIFIED THESE HOLDINGS:  "AN OFFENSE WHICH
MAY BE PUNISHED BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR OR AT
HARD LABOR SHALL BE PROSECUTED BY INDICTMENT OR, IF INDICTMENT IS
WAIVED, IT MAY BE PROSECUTED BY INFORMATION.  ANY OTHER OFFENSE MAY BE
PROSECUTED BY INDICTMENT OR BY INFORMATION." 

/25/  ALTHOUGH INDICTMENT BY GRAND JURY IS NOT PART OF THE DUE
PROCESS OF LAW GUARANTEED TO STATE CRIMINAL DEFENDANTS BY THE
FOURTEENTH AMENDMENT, HURTADO V. CALIFORNIA, 110 U.S. 516 (1884), A
RECENT STUDY REVEALS THAT 32 STATES REQUIRE THAT CERTAIN KINDS OF
CRIMINAL PROSECUTIONS BE INITIATED BY INDICTMENT.  SPAIN, THE GRAND
JURY, PAST AND PRESENT:  A SURVEY, 2 AM.CRIM.L.Q. 119, 126-142 (1964). 
IN THE 18 STATES IN WHICH THE PROSECUTOR MAY PROCEED BY INFORMATION,
THE GRAND JURY IS RETAINED AS AN ALTERNATIVE MEANS OF INVOKING THE
CRIMINAL PROCESS AND AS AN INVESTIGATIVE TOOL.  IBID. 

/26/  JEREMY BENTHAM VIVIDLY ILLUSTRATED THIS MAXIM: 

"ARE MEN OF THE FIRST RANK AND CONSIDERATION-- ARE MEN HIGH IN
OFFICE-- MEN WHOSE TIME IS NOT LESS VALUABLE TO THE PUBLIC THAN TO
THEMSELVES-- ARE SUCH MEN TO BE FORCED TO QUITE THEIR BUSINESS, THEIR
FUNCTIONS, AND WHAT IS MORE THAN ALL, THEIR PLEASURE, AT THE BECK OF
EVERY IDLE OR MALICIOUS ADVERSARY, TO DANCE ATTENDANCE UPON EVERY PETTY
CAUSE?  YES, AS FAR AS IT IS NECESSARY, THEY AND EVERYBODY.  . . . WERE
THE PRINCE OF WALES, THE ARCHBISHOP OF CANTERBURY, AND THE LORD HIGH
CHANCELLOR, TO BE PASSING BY IN THE SAME COACH, WHILE A CHIMNEY-SWEEPER
AND A BARROW-WOMAN WERE IN DISPUTE ABOUT A HALFPENNYWORTH OF APPLES,
AND THE CHIMNEY-SWEEPER OR THE BARROW-WOMAN WERE TO THINK PROPER TO
CALL UPON THEM FOR THEIR EVIDENCE, COULD THEY REFUSE IT?  NO, MOST
CERTAINLY."  4 THE WORKS OF JEREMY BENTHAM 320-321 (J. BOWRING ED.
1843). 

IN UNITED STATES V. BURR, 25 F.CAS.  30, 34 (NO. 14,692D) (CC VA.
1807), CHIEF JUSTICE MARSHALL, SITTING ON CIRCUIT, OPINED THAT IN
PROPER CIRCUMSTANCES A SUBPOENA COULD BE ISSUED TO THE PRESIDENT OF THE
UNITED STATES. 

/27/  THUS FAR, 17 STATES HAVE PROVIDED SOME TYPE OF STATUTORY
PROTECTION TO A NEWSMAN'S CONFIDENTIAL SOURCES: 

ALA. CODE, TIT. 7, SEC. 370 (1960); ALASKA STAT. SEC. 09.25.150
(SUPP. 1971); ARIZ. REV. STAT. ANN. SEC. 12-2237 (SUPP. 1971-1972);
ARK. STAT. ANN. SEC. 43-917 (1964); CAL. EVID. CODE SEC. 1070 (SUPP.
1972); IND. ANN. STAT. SEC. 2-1733 (1968); KY. REV. STAT. SEC. 421.100
(1962); LA. REV. STAT. ANN. SECS. 45:1451-45:1454 (SUPP. 1972); MD.
ANN. CODE, ART. 35, SEC. 2 (1971); MICH. COMP. LAWS SEC. 767.5A (SUPP.
1956), MICH. STAT. ANN. SEC. 28.945(1) (1954); MONT. REV. CODES ANN.
SEC. 93-601-2 (1964); NEV. REV. STAT. SEC. 49.275 (1971); N.J. REV.
STAT. SECS. 2A:84A-21, 2A:84A-29 (SUPP. 1972-1973); N.M. STAT. ANN.
SEC. 20-1-12.1 (1970); N.Y. CIV. RIGHTS LAW SEC. 79-H (SUPP. 1971
1972); OHIO REV. CODE ANN. SEC. 2739.12 (1954); PA. STAT. ANN., TIT.
28, SEC. 330 (SUPP. 1972-1973). 

/28/  SUCH LEGISLATION HAS BEEN INTRODUCED, HOWEVER.  SEE, E.G., S.
1311, 92D CONG., 1ST SESS. (1971); S. 3552, 91ST CONG., 2D SESS.
(1970); H.R. 16328, H.R. 16704, 91ST CONG., 2D SESS. (1970); S. 1851,
88TH CONG., 1ST SESS. (1963); H.R. 8519, H.R. 7787, 88TH CONG., 1ST
SESS. (1963); S. 965, 86TH CONG., 1ST SESS. (1959); H.R. 355, 86TH
CONG., 1ST SESS. (1959).  FOR A GENERAL ANALYSIS OF PROPOSED
CONGRESSIONAL LEGISLATION, SEE STAFF OF SENATE COMMITTEE ON THE
JUDICIARY, 89TH CONG., 2D SESS., THE NEWSMAN'S PRIVILEGE (COMM. PRINT
1966). 

/29/  THE CREATION OF NEW TESTIMONIAL PRIVILEGES HAS BEEN MET WITH
DISFAVOR BY COMMENTATORS SINCE SUCH PRIVILEGES OBSTRUCT THE SEARCH FOR
TRUTH.  WIGMORE CONDEMNS SUCH PRIVILEGES AS "SO MANY DEROGATIONS FROM A
POSITIVE GENERAL RULE (THAT EVERYONE IS OBLIGED TO TESTIFY WHEN
PROPERLY SUMMONED)" AND AS "OBSTACLES) TO THE ADMINISTRATION OF
JUSTICE."  8 J.WIGMORE, EVIDENCE 2192 (MCNAUGHTON REV. 1961).  HIS
CRITICISM THAT "ALL PRIVILEGES OF EXEMPTION FROM THIS DUTY ARE
EXCEPTIONAL, AND ARE THEREFORE TO BE DISCOUNTENANCED," ID., AT SEC.
2192, P. 73 (EMPHASIS IN ORIGINAL) HAS BEEN FREQUENTLY ECHOED.  MORGAN,
FOREWORD, MODEL CODE OF EVIDENCE 22-30 (1942); 2 Z.CHAFEE, GOVERNMENT
AND MASS COMMUNICATIONS 496-497 (1947); REPORT OF ABA COMMITTEE ON
IMPROVEMENTS IN THE LAW OF EVIDENCE, 63 A.B.A.REPORTS 595 (1938); C.
MCCORMICK, EVIDENCE 159 (2D ED. 1972); CHAFEE, PRIVILEGED
COMMUNICATIONS:  IS JUSTICE SERVED OR OBSTRUCTED BY CLOSING THE
DOCTOR'S MOUTH ON THE WITNESS STAND?, 52 YALE L.J. 607 (1943); LADD,
PRIVILEGES, 1969 LAW & THE SOCIAL ORDER 555, 556; 58 AM.JUR.,WITNESSES
546 (1948); 97 C.J.S.,WITNESSES 259 (1957); MCMANN V. SECURITIES AND
EXCHANGE COMMISSION, 87 F.2D 377, 378 (CA2 1937) (L. HAND, J.). 
NEITHER THE ALI'S MODEL CODE OF EVIDENCE (1942), THE UNIFORM RULES OF
EVIDENCE OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE
LAWS (1953), NOR THE PROPOSED RULES OF EVIDENCE FOR THE UNITED STATES
COURTS AND MAGISTRATES (REV. ED. 1971) HAS INCLUDED A NEWSMAN'S
PRIVILEGE. 

/30/  THE HOLDING IN THIS CASE INVOLVED A CONSTRUCTION OF THE
CONTEMPT OF COURT ACT OF 1831, 4 STAT. 487, WHICH PERMITTED SUMMARY
TRIAL OF CONTEMPTS "SO NEAR (TO THE COURT) AS TO OBSTRUCT THE
ADMINISTRATION OF JUSTICE."  THE COURT HELD THAT THE ACT REQUIRED ONLY
THAT THE CONDUCT HAVE A "DIRECT TENDENCY TO PREVENT AND OBSTRUCT THE
DISCHARGE OF JUDICIAL DUTY."  247 U.S.,AT 419.  THIS VIEW WAS OVERRULED
AND THE ACT GIVEN A MUCH NARROWER READING IN NYE V. UNITED STATES, 313
U.S. 33, 47-52 (1941).  SEE BLOOM V. ILLINOIS, 391 U.S. 194, 205-206
(1968). 

/31/  RESPONDENT CALDWELL ATTACHED A NUMBER OF AFFIDAVITS FROM
PROMINENT NEWSMEN TO HIS INITIAL MOTION TO QUASH, WHICH DETAIL THE
EXPERIENCES OF SUCH JOURNALISTS AFTER THEY HAVE BEEN SUBPOENAED. 
APPENDIX TO NO. 70-57, PP. 22-61. 

/32/  CF., E.G., THE RESULTS OF A STUDY CONDUCTED BY GUEST &
STANZLER, WHICH APPEARS AS AN APPENDIX TO THEIR ARTICLE, SUPRA, N. 20. 
A NUMBER OF EDITORS OF DAILY NEWSPAPERS OF VARYING CIRCULATION WERE
ASKED THE QUESTION, "EXCLUDING ONE- OR TWO-SENTENCE GOSSIP ITEMS, ON
THE AVERAGE HOW MANY STORIES BASED ON INFORMATION RECEIVED IN
CONFIDENCE ARE PUBLISHED IN YOUR PAPER EACH YEAR?  VERY ROUGH
ESTIMATE."  ANSWERS VARIED SIGNIFICANTLY, E.G., "VIRTUALLY
INNUMERABLE," TUCSON DAILY CITIZEN (41,969 DAILY CIRC.), "TOO MANY TO
REMEMBER," LOS ANGELES HERALD-EXAMINER (718,221 DAILY CIRC.),
"OCCASIONALLY, DENVER POST (252,084 DAILY CIRC.), "RARELY," CLEVELAND
PLAIN DEALER (370,499 DAILY CIRC.), "VERY RARE, SOME POLITICS," OREGON
JOURNAL (146,403 DAILY CIRC.).  THIS STUDY DID NOT PURPORT TO MEASURE
THE EXTENT OF DETERRENCE OF INFORMANTS CAUSED BY SUBPOENAS TO THE
PRESS. 

/33/  IN HIS PRESS SUBPOENAS:  AN EMPIRICAL AND LEGAL ANALYSIS,
STUDY REPORT OF THE REPORTERS' COMMITTEE ON FREEDOM OF THE PRESS 6-12,
PROF. VINCE BLASI DISCUSSES THESE METHODOLOGICAL PROBLEMS.  PROF.
BLASI'S SURVEY FOUND THAT SLIGHTLY MORE THAN HALF OF THE 975 REPORTERS
QUESTIONED SAID THAT THEY RELIED ON REGULAR CONFIDENTIAL SOURCES FOR AT
LEAST 10% OF THEIR STORIES.  ID., AT 21.  OF THIS GROUP OF REPORTERS,
ONLY 8% WERE ABLE TO SAY WITH SOME CERTAINTY THAT THEIR PROFESSIONAL
FUNCTIONING HAD BEEN ADVERSELY AFFECTED BY THE THREAT OF SUBPOENA;
ANOTHER 11% WERE NOT CERTAIN WHETHER OR NOT THEY HAD BEEN ADVERSELY
AFFECTED.  ID., AT 53. 

/34/  SEE STATUTE OF WESTMINSTER FIRST, 3 EDW.  1, C. 9, P. 43
(1275); STATUTE OF WESTMINSTER SECOND, 13 EDW.  1, C. 6, PP. 114-115
(1285); SHERIFFS ACT OF 1887, 50 & 51 VICT.,C. 55, SEC. 8(1); 4
W.BLACKSTONE, COMMENTARIES *293-295; 2 W.HOLDSWORTH, HISTORY OF ENGLISH
LAW 80-81, 101-102 (3D ED. 1927); 4 ID.,AT 521-522. 

/35/  SEE, E.G., SCROPE'S CASE, REFERRED TO IN 3 COKE'S INSTITUTE
36; REX V. COWPER, 5 MOD. 206, 87 ENG.REP.  611 (1696); PROCEEDINGS
UNDER A SPECIAL COMMISSION FOR THE COUNTY OF YORK, 31 HOW.ST.TR. 965,
969 (1813); SYKES V. DIRECTOR OF PUBLIC PROSECUTIONS, (1961) 3 W.L.R.
371.  BUT SEE GLAZEBROOK, MISPRISION OF FELONY-- SHADOW OR PHANTOM?, 8
AM.J.LEGAL HIST. 189 (1964).  SEE ALSO ACT 5 & 6 EDW.  6, C. 11
(1552). 

/36/  THIS STATUTE HAS BEEN CONSTRUED, HOWEVER, TO REQUIRE BOTH
KNOWLEDGE OF A CRIME AND SOME AFFIRMATIVE ACT OF CONCEALMENT OR
PARTICIPATION.  BRATTON V. UNITED STATES, 73 F.2D 795 (CA10 1934);
UNITED STATES V. FARRAR, 38 F.2D 515, 516 (MASS.), AFF'D ON OTHER
GROUNDS, 281 U.S. 624 (1930); UNITED STATES V. NORMAN, 391 F.2D 212
(CA6), CERT. DENIED, 390 U.S. 1014 (1968); LANCEY V. UNITED STATES, 356
F.2D 407 (CA9), CERT. DENIED, 385 U.S. 922 (1966).  CF. MARBURY V.
BROOKS, 7 WHEAT.  556, 575 (1822) (MARSHALL, C.J.). 

/37/  THOUGH THE CONSTITUTIONAL ARGUMENT FOR A NEWSMAN'S PRIVILEGE
HAS BEEN PUT FORWARD VERY RECENTLY, NEWSMEN HAVE CONTENDED FOR A NUMBER
OF YEARS THAT SUCH A PRIVILEGE WAS DESIRABLE.  SEE, E.G., SIEBERT &
RYNIKER, PRESS WINNING FIGHT TO GUARD SOURCES, EDITOR & PUBLISHER,
SEPT. 1, 1934, PP. 9, 36-37; G. BIRD & F. MERWIN, THE PRESS AND SOCIETY
592 (1971).  THE FIRST NEWSMAN'S PRIVILEGE STATUTE WAS ENACTED BY
MARYLAND IN 1896, AND CURRENTLY IS CODIFIED AS MD. ANN. CODE, ART. 35,
SEC. 2 (1971). 

/38/  A LIST OF RECENT SUBPOENAS TO THE NEWS MEDIA IS CONTAINED IN
THE APPENDIX TO THE BRIEF OF AMICUS NEW YORK TIMES IN NO. 70-57. 

/39/  "UNDER THE CASE-BY-CASE METHOD OF DEVELOPING RULES, IT WILL BE
DIFFICULT FOR POTENTIAL INFORMANTS AND REPORTERS TO PREDICT WHETHER
TESTIMONY WILL BE COMPELLED SINCE THE DECISION WILL TURN ON THE JUDGE'S
AD HOC ASSESSMENT IN DIFFERENT FACT SETTINGS OF 'IMPORTANCE' OR
'RELEVANCE' IN RELATION TO THE FREE PRESS INTEREST.  A 'GENERAL'
DETERRENT EFFECT IS LIKELY TO RESULT.  THIS TYPE OF EFFECT STEMS FROM
THE VAGUENESS OF THE TESTS AND FROM THE UNCERTAINTY ATTENDING THEIR
APPLICATION.  FOR EXAMPLE, IF A REPORTER'S INFORMATION GOES TO THE
'HEART OF THE MATTER' IN SITUATION X, ANOTHER REPORTER AND INFORMANT
WHO SUBSEQUENTLY ARE IN SITUATION Y WILL NOT KNOW IF 'HEART OF THE
MATTER RULE X' WILL BE EXTENDED TO THEM, AND DETERRENCE WILL THEREBY
RESULT.  LEAVING SUBSTANTIAL DISCRETION WITH JUDGES TO DELINEATE THOSE
'SITUATIONS' IN WHICH RULES OF 'RELEVANCE' OR 'IMPORTANCE' APPLY WOULD
THEREFORE SEEM TO UNDERMINE SIGNIFICANTLY THE EFFECTIVENESS OF A
REPORTER-INFORMER PRIVILEGE."  NOTE, REPORTERS AND THEIR SOURCES:  THE
CONSTITUTIONAL RIGHT TO A CONFIDENTIAL RELATIONSHIP, 80 YALE L.J. 317,
341 (1970). 

IN RE GRAND JURY WITNESSES, 322 F.SUPP.  573 (ND CAL. 1970),
ILLUSTRATES THE IMPACT OF THIS AD HOC APPROACH.  HERE, THE GRAND JURY
WAS, AS IN CALDWELL, INVESTIGATING THE BLACK PANTHER PARTY, AND WAS
"INQUIRING INTO MATTERS WHICH INVOLVE POSSIBLE VIOLATIONS OF
CONGRESSIONAL ACTS PASSED TO PROTECT THE PERSON OF THE PRESIDENT (18
U.S.C. 1751), TO FREE HIM FROM THREATS (18 U.S.C. 871), TO PROTECT OUR
ARMED FORCES FROM UNLAWFUL INTERFERENCE (18 U.S.C. 2387), CONSPIRACY TO
COMMIT THE FOREGOING OFFENSES (18 U.S.C. 371), AND RELATED STATUTES
PROHIBITING ACTS DIRECTED AGAINST THE SECURITY OF THE GOVENMENT."  ID.,
AT 577.  THE TWO WITNESSES, REPORTERS FOR A BLACK PANTHER PARTY
NEWSPAPER, WERE SUBPOENAED AND GIVEN FIFTH AMENDMENT IMMUNITY AGAINST
CRIMINAL PROSECUTION, AND THEY CLAIMED A FIRST AMENDMENT JOURNALIST'S
PRIVILEGE.  THE DISTRICT COURT ENTERED A PROTECTIVE ORDER, ALLOWING
THEM TO REFUSE TO DIVULGE CONFIDENTIAL INFORMATION UNTIL THE GOVERNMENT
DEMONSTRATED "A COMPELLING AND OVERRIDING NATIONAL INTEREST IN
REQUIRING THE TESTIMONY OF (THE WITNESSES) WHICH CANNOT BE SERVED BY
ANY ALTERNATIVE MEANS."  ID., AT 574.  THE GOVERNMENT CLAIMED THAT IT
HAD INFORMATION THAT THE WITNESSES HAD ASSOCIATED WITH PERSONS WHO HAD
CONSPIRED TO PERFORM SOME OF THE CRIMINAL ACTS THAT THE GRAND JURY WAS
INVESTIGATING.  THE COURT HELD THE GOVERNMENT HAD MET ITS BURDEN AND
ORDERED THE WITNESSES TO TESTIFY:     "THE WHOLE POINT OF THE
INVESTIGATION IS TO IDENTIFY PERSONS KNOWN TO THE (WITNESSES) WHO MAY
HAVE ENGAGED IN ACTIVITIES VIOLATIVE OF THE ABOVE INDICATED STATUTES,
AND ALSO TO ASCERTAIN THE DETAILS OF THEIR ALLEGED UNLAWFUL
ACTIVITIES.  ALL QUESTIONS DIRECTED TO SUCH OBJECTIVES OF THE
INVESTIGATION ARE UNQUESTIONABLY RELEVANT, AND ANY OTHER EVALUATION
THEREOF BY THE COURT WITHOUT KNOWLEDGE OF THE FACTS BEFORE THE GRAND
JURY WOULD CLEARLY CONSTITUTE 'UNDUE INTERFERENCE OF THE COURT.'"  ID.,
AT 577. 

ANOTHER ILLUSTRATION IS PROVIDED BY STATE V. KNOPS, 49 WIS.2D 647,
183 N.W.2D 93 (1971), IN WHICH A GRAND JURY WAS INVESTIGATING THE
AUGUST 24, 1970, BOMBING OF STERLING HALL ON THE UNIVERSITY OF
WISCONSIN MADISON CAMPUS.  ON AUGUST 26, 1970, AN "UNDERGROUND"
NEWSPAPER, THE MADISON KALEIDOSCOPE, PRINTED A FRONT-PAGE STORY
ENTITLED "THE BOMBERS TELL WHY AND WHAT NEXT-- EXCLUSIVE TO
KALEIDOSCOPE."  AN EDITOR OF THE KALEIDOSCOPE WAS SUBPOENAED, APPEARED,
ASSERTED HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION, WAS
GIVEN IMMUNITY, AND THEN PLEADED THAT HE HAD A FIRST AMENDMENT
PRIVILEGE AGAINST DISCLOSING HIS CONFIDENTIAL INFORMANTS.  THE
WISCONSIN SUPREME COURT REJECTED HIS CLAIM AND UPHELD HIS CONTEMPT
SENTENCE:  "(APPELLANT) FACES FIVE VERY NARROW AND SPECIFIC QUESTIONS,
ALL OF WHICH ARE FOUNDED ON INFORMATION WHICH HE HIMSELF HAS ALREADY
VOLUNTEERED.  THE PURPOSE OF THESE QUESTIONS IS VERY CLEAR.  THE NEED
FOR ANSWERS TO THEM IS 'OVERRIDING,' TO SAY THE LEAST.  THE NEED FOR
THESE ANSWERS IS NOTHING SHORT OF THE PUBLIC'S NEED (AND RIGHT) TO
PROTECT ITSELF FROM PHYSICAL ATTACK BY APPREHENDING THE PERPETRATORS OF
SUCH ATTACKS."  49 WIS.2D;,AT 658, 183 N.W.2D.,AT 98-99. 

/40/  SUCH A PRIVILEGE MIGHT BE CLAIMED BY GROUPS THAT SET UP
NEWSPAPERS IN ORDER TO ENGAGE IN CRIMINAL ACTIVITY AND TO THEREFORE BE
INSULATED FROM GRAND JURY INQUIRY, REGARDLESS OF FIFTH AMENDMENT GRANTS
OF IMMUNITY.  IT MIGHT APPEAR THAT SUCH "SHAM" NEWSPAPERS WOULD BE
EASILY DISTINGUISHABLE, YET THE FIRST AMENDMENT ORDINARILY PROHIBITS
COURTS FROM INQUIRING INTO THE CONTENT OF EXPRESSION, EXCEPT IN CASES
OF OBSCENITY OR LIBEL, AND PROTECTS SPEECH AND PUBLICATIONS REGARDLESS
OF THEIR MOTIVATION, ORTHODOXY, TRUTHFULNESS, TIMELINESS, OR TAST.  NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S.,AT 269-270; KINGSLEY PICTURES
CORP. V. REGENTS, 36 U.S. 684, 689 (1959); WINTERS V. NEW YORK, 333
U.S. 507, 510 (1948); THOMAS V. COLLINS, 323 U.S.,AT 537.  BY AFFORDING
A PRIVILEGE TO SOME ORGANS OF COMMUNICATION BUT NOT TO OTHERS, COURTS
WOULD INEVITABLY BE DISCRIMINATING ON THE BASIS OF CONTENT. 

/41/  THE GUIDELINES FOR SUBPOENAS TO THE NEWS MEDIA WERE FIRST
ANNOUNCED IN A SPEECH BY THE ATTORNEY GENERAL ON AUGUST 10, 1970, AND
THEN WERE EXPRESSED IN DEPARTMENT OF JUSTICE MEMO.  NO. 692 (SEPT. 2,
1970), WHICH WAS SENT TO ALL UNITED STATES ATTORNEYS BY THE ASSISTANT
ATTORNEY GENERAL IN CHARGE OF THE CRIMINAL DIVISION.  THE GUIDELINES
STATE THAT:  "THE DEPARTMENT OF JUSTICE RECOGNIZES THAT COMPULSORY
PROCESS IN SOME CIRCUMSTANCES MAY HAVE A LIMITING EFFECT ON THE
EXERCISE OF FIRST AMENDMENT RIGHTS.  IN DETERMINING WHETHER TO REQUEST
ISSUANCE OF A SUBPOENA TO THE PRESS, THE APPROACH IN EVERY CASE MUST BE
TO WEIGH THAT LIMITING EFFECT AGAINST THE PUBLIC INTEREST TO BE SERVED
IN THE FAIR ADMINISTRATION OF JUSTICE" AND THAT:  "THE DEPARTMENT OF
JUSTICE DOES NOT CONSIDER THE PRESS 'AN INVESTIGATIVE ARM OF THE
GOVERNMENT.'  THEREFORE, ALL REASONABLE ATTEMPTS SHOULD BE MADE TO
OBTAIN INFORMATION FROM NON-PRESS SOURCES BEFORE THERE IS ANY
CONSIDERATION OF SUBPOENAING THE PRESS."  THE GUIDELINES PROVIDE FOR
NEGOTIATIONS WITH THE PRESS AND REQUIRE THE EXPRESS AUTHORIZATION OF
THE ATTORNEY GENERAL FOR SUCH SUBPOENAS.  THE PRINCIPLES TO BE APPLIED
IN AUTHORIZING SUCH SUBPOENAS ARE STATED TO BE WHETHER THERE IS
"SUFFICIENT REASON TO BELIEVE THAT THE INFORMATION SOUGHT (FROM THE
JOURNALIST) IS ESSENTIAL TO A SUCCESSFUL INVESTIGATION," AND WHETHER
THE GOVERNMENT HAS UNSUCCESSFULLY ATTEMPTED TO OBTAIN THE INFORMATION
FROM ALTERNATIVE NON-PRESS SOURCES.  THE GUIDELINES PROVIDE, HOWEVER,
THAT IN "EMERGENCIES AND OTHER UNUSUAL SITUATIONS," SUBPOENAS MAY BE
ISSUED WHICH DO NOT EXACTLY CONFORM TO THE GUIDELINES. 

/42/  CF. YOUNGER V. HARRIS, 401 U.S. 37, 49, 53-54 (1971). 

MR. JUSTICE POWELL, CONCURRING. 

I ADD THIS BRIEF STATEMENT TO EMPHASIZE WHAT SEEMS TO ME TO BE THE
LIMITED NATURE OF THE COURT'S HOLDING.  THE COURT DOES NOT HOLD THAT
NEWSMEN, SUBPOENAED TO TESTIFY BEFORE A GRAND JURY, ARE WITHOUT
CONSTITUTIONAL RIGHTS WITH RESPECT TO THE GATHERING OF NEWS OR IN
SAFEGUARDING THEIR SOURCES.  CERTAINLY, WE DO NOT HOLD, AS SUGGESTED IN
MR. JUSTICE STEWART'S DISSENTING OPINION, THAT STATE AND FEDERAL
AUTHORITIES ARE FREE TO "ANNEX" THE NEWS MEDIA AS "AN INVESTIGATIVE ARM
OF GOVERNMENT."  THE SOLICITUDE REPEATEDLY SHOWN BY THIS COURT FOR
FIRST AMENDMENT FREEDOMS SHOULD BE SUFFICIENT ASSURANCE AGAINST ANY
SUCH EFFORT, EVEN IF ONE SERIOUSLY BELIEVED THAT THE MEDIA-- PROPERLY
FREE AND UNTRAMMELED IN THE FULLEST SENSE OF THESE TERMS-- WERE NOT
ABLE TO PROTECT THEMSELVES. 

AS INDICATED IN THE CONCLUDING PORTION OF THE OPINION, THE COURT
STATES THAT NO HARASSMENT OF NEWSMEN WILL BE TOLERATED.  IF A NEWSMAN
BELIEVES THAT THE GRAND JURY INVESTIGATION IS NOT BEING CONDUCTED IN
GOOD FAITH HE IS NOT WITHOUT REMEDY.  INDEED, IF THE NEWSMAN IS CALLED
UPON TO GIVE INFORMATION BEARING ONLY A REMOTE AND TENUOUS RELATIONSHIP
TO THE SUBJECT OF THE INVESTIGATION, OR IF HE HAS SOME OTHER REASON TO
BELIEVE THAT HIS TESTIMONY IMPLICATES CONFIDENTIAL SOURCE RELATIONSHIPS
WITHOUT A LEGITIMATE NEED OF LAW ENFORCEMENT, HE WILL HAVE ACCESS TO
THE COURT ON A MOTION TO QUASH AND AN APPROPRIATE PROTECTIVE ORDER MAY
BE ENTERED.  THE ASSERTED CLAIM TO PRIVILEGE SHOULD BE JUDGED ON ITS
FACTS BY THE STRIKING OF A PROPER BALANCE BETWEEN FREEDOM OF THE PRESS
AND THE OBLIGATION OF ALL CITIZENS TO GIVE RELEVANT TESTIMONY WITH
RESPECT TO CRIMINAL CONDUCT.  THE BALANCE OF THESE VITAL CONSTITUTIONAL
AND SOCIETAL INTERESTS ON A CASE-BY-CASE BASIS ACCORDS WITH THE TRIED
AND TRADITIONAL WAY OF ADJUDICATING SUCH QUESTIONS.  /1/ 

IN SHORT, THE COURTS WILL BE AVAILABLE TO NEWSMEN UNDER
CIRCUMSTANCES WHERE LEGITIMATE FIRST AMENDMENT INTERESTS REQUIRE
PROTECTION. 

IT IS TO BE REMEMBERED THAT CALDWELL ASSERTS A CONSTITUTIONAL
PRIVILEGE NOT EVEN TO APPEAR BEFORE THE GRAND JURY UNLESS A COURT
DECIDES THAT THE GOVERNMENT HAS MADE A SHOWING THAT MEETS THE THREE
PRECONDITIONS SPECIFIED IN THE DISSENTING OPINION OF MR. JUSTICE
STEWART.  TO BE SURE, THIS WOULD REQUIRE A "BALANCING OF INTERESTS BY
THE COURT, BUT UNDER CIRCUMSTANCES AND CONSTRAINTS SIGNIFICANTLY
DIFFERENT FROM THE BALANCING THAT WILL BE APPROPRIATE UNDER THE COURT'S
DECISION.  THE NEWSMAN WITNESS, LIKE ALL OTHER WITNESSES, WILL HAVE TO
APPEAR; HE WILL NOT BE IN A POSITION TO LITIGATE AT THE THRESHOLD THE
STATE'S VERY AUTHORITY TO SUBPOENA HIM.  MOREOVER, ABSENT THE
CONSTITUTIONAL PRECONDITIONS THAT CALDWELL AND THAT DISSENTING OPINION
WOULD IMPOSE AS HEAVY BURDENS OF PROOF TO BE CARRIED BY THE STATE, THE
COURT-- WHEN CALLED UPON TO PROTECT A NEWSMAN FROM IMPROPER OR
PREJUDICIAL QUESTIONING-- WOULD BE FREE TO BALANCE THE COMPETING
INTERESTS ON THEIR MERITS IN THE PARTICULAR CASE.  THE NEW
CONSTITUTIONAL RULE ENDORSED BY THAT DISSENTING OPINION WOULD, AS A
PRACTICAL MATTER, DEFEAT SUCH A FAIR BALANCING AND THE ESSENTIAL
SOCIETAL INTEREST IN THE DETECTION AND PROSECUTION OF CRIME WOULD BE
HEAVILY SUBORDINATED. 

MR. JUSTICE DOUGLAS, DISSENTING IN NO. 70-57, UNITED STATES V.
CALDWELL. 

CALDWELL, A BLACK, IS A REPORTER FOR THE NEW YORK TIMES AND WAS
ASSIGNED TO SAN FRANCISCO WITH THE HOPE THAT HE COULD REPORT ON THE
ACTIVITIES AND ATTITUDES OF THE BLACK PANTHER PARTY.  CALDWELL IN TIME
GAINED THE COMPLETE CONFIDENCE OF ITS MEMBERS AND WROTE IN-DEPTH
ARTICLES ABOUT THEM. 

HE WAS SUBPOENAED TO APPEAR AND TESTIFY BEFORE A FEDERAL GRAND JURY
AND TO BRING WITH HIM NOTES AND TAPES COVERING INTERVIEWS WITH ITS
MEMBERS.  A HEARING ON A MOTION TO QUASH WAS HELD.  THE DISTRICT COURT
RULED THAT WHILE CALDWELL HAD TO APPEAR BEFORE THE GRAND JURY, HE DID
NOT HAVE TO REVEAL CONFIDENTIAL COMMUNICATIONS UNLESS THE COURT WAS
SATISFIED THAT THERE WAS A "COMPELLING AND OVERRIDING NATIONAL
INTEREST."  SEE 311 F.SUPP.  358, 362.  CALDWELL FILED A NOTICE OF
APPEAL AND THE COURT OF APPEALS DISMISSED THE APPEAL WITHOUT OPINION. 

SHORTLY THEREAFTER A NEW GRAND JURY WAS IMPANELED AND IT ISSUED A
NEW SUBPOENA FOR CALDWELL TO TESTIFY.  ON A MOTION TO QUASH, THE
DISTRICT COURT ISSUED AN ORDER SUBSTANTIALLY IDENTICAL TO ITS EARLIER
ONE. 

CALDWELL REFUSED TO APPEAR AND WAS HELD IN CONTEMPT.  ON APPEAL, THE
COURT OF APPEALS VACATED THE JUDGMENT OF CONTEMPT.  IT SAID THAT THE
REVEALING OF CONFIDENTIAL SOURCES OF INFORMATION JEOPARDIZED A FIRST
AMENDMENT FREEDOM AND THAT CALDWELL DID NOT HAVE TO APPEAR BEFORE THE
GRAND JURY ABSENT A SHOWING THAT THERE WAS A "COMPELLING AND OVERRIDING
NATIONAL INTEREST" IN PURSUING SUCH AN INTERROGATION. 

THE DISTRICT COURT HAD FOUND THAT CALDWELL'S KNOWLEDGE OF THE
ACTIVITIES OF THE BLACK PANTHERS "DERIVED IN SUBSTANTIAL PART" FROM
INFORMATION OBTAINED "WITHIN THE SCOPE OF A RELATIONSHIP OF TRUST AND
CONFIDENCE."  ID., AT 361.  IT ALSO FOUND THAT CONFIDENTIAL
RELATIONSHIPS OF THIS SORT ARE COMMONLY DEVELOPED AND MAINTAINED BY
PROFESSIONAL JOURNALISTS, AND ARE INDISPENSABLE TO THEIR WORK OF
GATHERING, ANALYZING, AND PUBLISHING THE NEWS. 

THE DISTRICT COURT FURTHER HAD FOUND THAT COMPELLED DISCLOSURE OF
INFORMATION RECEIVED BY A JOURNALIST WITHIN THE SCOPE OF SUCH
CONFIDENTIAL RELATIONSHIPS JEOPARDIZED THOSE RELATIONSHIPS AND THEREBY
IMPAIRED THE JOURNALIST'S ABILITY TO GATHER, ANALYZE, AND PUBLISH THE
NEWS. 

THE DISTRICT COURT, FINALLY, HAD FOUND THAT, WITHOUT A PROTECTIVE
ORDER DELIMITING THE SCOPE OF INTERROGATION OF EARL CALDWELL BY THE
GRAND JURY, HIS APPEARANCE AND EXAMINATION BEFORE THE JURY WOULD
SEVERELY IMPAIR AND DAMAGE HIS CONFIDENTIAL RELATIONSHIPS WITH MEMBERS
OF THE BLACK PANTHER PARTY AND OTHER MILITANTS, AND THEREBY SEVERELY
IMPAIR AND DAMAGE HIS ABILITY TO GATHER, ANALYZE, AND PUBLISH NEWS
CONCERNING THEM; AND THAT IT WOULD ALSO DAMAGE AND IMPAIR THE ABILITIES
OF ALL REPORTERS TO GATHER, ANALYZE, AND PUBLISH NEWS CONCERNING THEM. 

THE COURT OF APPEALS AGREED WITH THE FINDINGS OF THE DISTRICT COURT
BUT HELD THAT CALDWELL DID NOT HAVE TO APPEAR AT ALL BEFORE THE GRAND
JURY ABSENT A "COMPELLING NEED" SHOWN BY THE GOVERNMENT.  434 F.2D
1081. 

IT IS MY VIEW THAT THERE IS NO "COMPELLING NEED" THAT CAN BE SHOWN
WHICH QUALIFIES THE REPORTER'S IMMUNITY FROM APPEARING OR TESTIFYING
BEFORE A GRAND JURY, UNLESS THE REPORTER HIMSELF IS IMPLICATED IN A
CRIME.  HIS IMMUNITY IN MY VIEW IS THEREFORE QUITE COMPLETE, FOR,
ABSENT HIS INVOLVEMENT IN A CRIME, THE FIRST AMENDMENT PROTECTS HIM
AGAINST AN APPEARANCE BEFORE A GRAND JURY AND IF HE IS INVOLVED IN A
CRIME, THE FIFTH AMENDMENT STANDS AS A BARRIER.  SINCE IN MY VIEW THERE
IS NO AREA OF INQUIRY NOT PROTECTED BY A PRIVILEGE, THE REPORTER NEED
NOT APPEAR FOR THE FUTILE PURPOSE OF INVOKING ONE TO EACH QUESTION. 
AND, SINCE IN MY VIEW A NEWSMAN HAS AN ABSOLUTE RIGHT NOT TO APPEAR
BEFORE A GRAND JURY, IT FOLLOWS FOR ME THAT A JOURNALIST WHO
VOLUNTARILY APPEARS BEFORE THAT BODY MAY INVOKE HIS FIRST AMENDMENT
PRIVILEGE TO SPECIFIC QUESTIONS.  THE BASIC ISSUE IS THE EXTENT TO
WHICH THE FIRST AMENDMENT (WHICH IS APPLICABLE TO INVESTIGATING
COMMITTEES, WATKINS V. UNITED STATES, 354 U.S. 178; NAACP V. ALABAMA,
357 U.S. 449, 463; GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION
COMMITTEE, 372 U.S. 539; BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1, 6
7; IN RE STOLAR, 401 U.S. 23) MUST YIELD TO THE GOVERNMENT'S ASSERTED
NEED TO KNOW A REPORTER'S UNPRINTED INFORMATION. 

THE STARTING POINT FOR DECISION PRETTY WELL MARKS THE RANGE WITHIN
WHICH THE END RESULT LIES.  THE NEW YORK TIMES, WHOSE REPORTING
FUNCTIONS ARE AT ISSUE HERE, TAKES THE AMAZING POSITION THAT FIRST
AMENDMENT RIGHTS ARE TO BE BALANCED AGAINST OTHER NEEDS OR CONVENIENCES
OF GOVERNMENT.  /1/  MY BELIEF IS THAT ALL OF THE "BALANCING" WAS DONE
BY THOSE WHO WROTE THE BILL OF RIGHTS.  BY CASTING THE FIRST AMENDMENT
IN ABSOLUTE TERMS, THEY REPUDIATED THE TIMID, WATERED-DOWN, EMASCULATED
VERSIONS OF THE FIRST AMENDMENT WHICH BOTH THE GOVERNMENT AND THE NEW
YORK TIMES ADVANCE IN THE CASE. 

MY VIEW IS CLOSE TO THAT OF THE LATE ALEXANDER MEIKLEJOHN:  /2/ 

     "FOR THE UNDERSTANDING OF THESE PRINCIPLES IT IS ESSENTIAL TO

  KEEP CLEAR THE CRUCIAL DIFFERENCE BETWEEN 'THE RIGHTS' OF THE

  GOVERNED AND 'THE POWERS' OF THE GOVERNORS.  AND AT THIS POINT,

  THE TITLE 'BILL OF RIGHTS' IS LAMENTABLY INACCURATE AS A

  DESIGNATION OF THE FIRST TEN AMENDMENTS.  THEY ARE NOT A 'BILL OF

  RIGHTS' BUT A 'BILL OF POWERS AND RIGHTS.'  THE SECOND THROUGH
THE

 NINTH AMENDMENTS LIMIT THE POWERS OF THE SUBORDINATE AGENCIES IN

  ORDER THAT DUE REGARD SHALL BE PAID TO THE PRIVATE 'RIGHTS OF THE

  GOVERNED."  THE FIRST AND TENTH AMENDMENTS PROTECT THE GOVERNING

  'POWERS' OF THE PEOPLE FROM ABRIDGMENT BY THE AGENCIES WHICH ARE

  ESTABLISHED AS THEIR SERVANTS.  IN THE FIELD OF OUR 'RIGHTS,'

  EACH ONE OF US CAN CLAIM 'DUE PROCESS OF LAW.'  IN THE FIELD OF

  OUR GOVERNING 'POWERS,'  THE NOTION OF 'DUE PROCESS' IS

  IRRELEVANT." 

HE ALSO BELIEVED THAT "(SELF-GOVERNMENT CAN EXIST ONLY INSOFAR AS
THE VOTERS ACQUIRE THE INTELLIGENCE, INTEGRITY, SENSITIVITY, AND
GENEROUS DEVOTION TO THE GENERAL WELFARE THAT, IN THEORY, CASTING A
BALLOT IS ASSUMED TO EXPRES,"  /3/  AND THAT "(PUBLIC DISCUSSIONS OF
PUBLIC ISSUES, TOGETHER WITH THE SPREADING OF INFORMATION AND OPINION
BEARING ON THOSE ISSUES, MUST HAVE A FREEDOM UNABRIDGED BY OUR AGENTS. 
THOUGH THEY GOVERN US, WE, IN A DEEPER SENSE, GOVERN THEM.  OVER OUR
GOVERNING, THEY HAVE NO POWER.  OVER THEIR GOVERNING WE HAVE SOVEREIGN
POWER."  /4/     TWO PRINCIPLES WHICH FOLLOW FROM THIS UNDERSTANDING OF
THE FIRST AMENDMENT ARE AT STAKE HERE.  ONE IS THAT THE PEOPLE, THE
ULTIMATE GOVERNORS, MUST HAVE ABSOLUTE FREEDOM OF, AND THEREFORE
PRIVACY OF, THEIR INDIVIDUAL OPINIONS AND BELIEFS REGARDLESS OF HOW
SUSPECT OR STRANGE THEY MAY APPEAR TO OTHERS.  ANCILLARY TO THAT
PRINCIPLE IS THE CONCLUSION THAT AN INDIVIDUAL MUST ALSO HAVE ABSOLUTE
PRIVACY OVER WHATEVER INFORMATION HE MAY GENERATE IN THE COURSE OF
TESTING HIS OPINIONS AND BELIEFS.  IN THIS REGARD, CALDWELL'S STATUS AS
A REPORTER IS LESS RELEVANT THAN IS HIS STATUS AS A STUDENT WHO
AFFIRMATIVELY PURSUED EMPIRICAL RESEARCH TO ENLARGE HIS OWN
INTELLECTUAL VIEWPOINT.  THE SECOND PRINCIPLE IS THAT EFFECTIVE SELF
GOVERNMENT CANNOT SUCCEED UNLESS THE PEOPLE ARE IMMERSED IN A STEADY,
ROBUST, UNIMPEDED, AND UNCENSORED FLOW OF OPINION AND REPORTING WHICH
ARE CONTINUOUSLY SUBJECTED TO CRITIQUE, REBUTTAL, AND RE-EXAMINATION. 
IN THIS RESPECT, CALDWELL'S STATUS AS A NEWS GATHERER AND AN INTEGRAL
PART OF THAT PROCESS BECOMES CRITICAL

        I 

GOVERNMENT HAS MANY INTERESTS THAT COMPETE WITH THE FIRST
AMENDMENT.  CONGRESSIONAL INVESTIGATIONS DETERMINE HOW EXISTING LAWS
ACTUALLY OPERATE OR WHETHER NEW LAWS ARE NEEDED.  WHILE CONGRESSIONAL
COMMITTEES HAVE BROAD POWERS, THEY ARE SUBJECT TO THE RESTRAINTS OF THE
FIRST AMENDMENT.  AS WE SAID IN WATKINS V. UNITED STATES, 354 U.S.,AT
197:  "CLEARLY, AN INVESTIGATION IS SUBJECT TO THE COMMAND THAT THE
CONGRESS SHALL MAKE NO LAW ABRIDGING FREEDOM OF SPEECH OR PRESS OR
ASSEMBLY.  WHILE IT IS TRUE THAT THERE IS NO STATUTE TO BE REVIEWED,
AND THAT AN INVESTIGATION IS NOT A LAW, NEVERTHELESS AN INVESTIGATION
IS PART OF LAWMAKING.  IT IS JUSTIFIED SOLELY AS AN ADJUNCT TO THE
LEGISLATIVE PROCESS.  THE FIRST AMENDMENT MAY BE INVOKED AGAINST
INFRINGEMENT OF THE PROTECTED FREEDOMS BY LAW OR BY LAWMAKING." 

HENCE, MATTERS OF BELIEF, IDEOLOGY, RELIGIOUS PRACTICES, SOCIAL
PHILOSOPHY, AND THE LIKE ARE BEYOND THE PALE AND OF NOT RIGHTFUL
CONCERN OF GOVERNMENT, UNLESS THE BELIEF OR THE SPEECH, OR OTHER
EXPRESSION HAS BEEN TRANSLATED INTO ACTION.  WEST VIRGINIA STATE BOARD
OF EDUCATION V. BARNETTE, 319 U.S. 624, 642; BAIRD V. STATE BAR OF
ARIZONA, 401 U.S.,AT 6-7; IN RE STOLAR, 401 U.S. 23. 

ALSO AT STAKE HERE IS CALDWELL'S PRIVACY OF ASSOCIATION.  WE HAVE
HELD THAT "(INVIOLABILITY OF PRIVACY IN GROUP ASSOCIATION MAY IN MANY
CIRCUMSTANCES BE INDISPENSABLE TO PRESERVATION OF FREEDOM OF
ASSOCIATION, PARTICULARLY WHERE A GROUP ESPOUSES DISSIDENT BELIEFS." 
NAACP V. ALABAMA, 357 U.S.,AT 462; NAACP V. BUTTON, 371 U.S. 415. 

AS I SAID IN GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE,
372 U.S.,AT 565:  "THE ASSOCIATIONAL RIGHTS PROTECTED BY THE FIRST
AMENDMENT . . . COVER THE ENTIRE SPECTRUM IN POLITICAL IDEOLOGY AS WELL
AS IN ART, IN JOURNALISM, IN TEACHING, AND IN RELIGION.  . . .
(GOVERNMENT IS . . . PRECLUDED FROM PROBING THE INTIMACIES OF SPIRITUAL
AND INTELLECTUAL RELATIONSHIPS IN THE MYRIAD OF SUCH SOCIETIES AND
GROUPS THAT EXIST IN THIS COUNTRY, REGARDLESS OF THE LEGISLATIVE
PURPOSE SOUGHT TO BE SERVED.  . . . IF THAT IS NOT TRUE, I SEE NO
BARRIER TO INVESTIGATION OF NEWSPAPERS, CHURCHES, POLITICAL PARTIES,
CLUBS, SOCIETIES, UNIONS, AND ANY OTHER ASSOCIATION FOR THEIR
POLITICAL, ECONOMIC, SOCIAL, PHILOSOPHICAL, OR RELIGIOUS VIEWS." 
(CONCURRING OPINION.) 

THE COURT HAS NOT ALWAYS BEEN CONSISTENT IN ITS PROTECTION OF THESE
FIRST AMENDMENT RIGHTS AND HAS SOMETIMES ALLOWED A GOVERNMENT INTEREST
TO TO OVERRIDE THE ABSOLUTES OF THE FIRST AMENDMENT.  FOR EXAMPLE,
UNDER THE BANNER OF THE "CLEAR AND PRESENT DANGER" TEST, /5/  AND LATER
UNDER THE INFLUENCE OF THE "BALANCING" FORMULA, /6/  THE COURT HAS
PERMITTED MEN TO BE PENALIZED NOT FOR ANY HARMFUL CONDUCT BUT SOLELY
FOR HOLDING UNPOPULAR BELIEFS. 

IN RECENT YEARS WE HAVE SAID OVER AND OVER AGAIN THAT WHERE FIRST
AMENDMENT RIGHTS ARE CONCERNED ANY REGULATION "NARROWLY DRAWN,"  /7/
MUST BE "COMPELLING" AND NOT MERELY "RATIONAL" AS IS THE CASE WHERE
OTHER ACTIVITIES ARE CONCERNED.  /8/  BUT THE "COMPELLING" INTEREST IN
REGULATION NEITHER INCLUDES PARING DOWN OR DILUTING THE RIGHT, NOR
EMBRACES PENALIZING ONE SOLELY FOR HIS INTELLECTUAL VIEWPOINT; IT
CONCERNS THE STATE'S INTEREST, FOR EXAMPLE, IN REGULATING THE TIME AND
PLACE OR PERHAPS MANNER OF EXERCISING FIRST AMENDMENT RIGHTS.  THUS,
ONE HAS AN UNDOUBTED RIGHT TO READ AND PROCLAIM THE FIRST AMENDMENT IN
THE CLASSROOM OR IN A PARK.  BUT HE WOULD NOT HAVE THE RIGHT TO BLARE
IT FORTH FROM A SOUND TRUCK ROLLING THROUGH THE VILLAGE OR CITY AT 2
A.M.  THE DISTINCTION DRAWN IN CANTWELL V. CONNECTICUT, 310 U.S. 296,
303-304, SHOULD STILL STAND:  "(THE AMENDMENT EMBRACES TWO CONCEPTS,--
FREEDOM TO BELIEVE AND FREEDOM TO ACT.  THE FIRST IS ABSOLUTE BUT, IN
THE NATURE OF THINGS, THE SECOND CANNOT BE."  /9/ 

UNDER THESE PRECEDENTS THERE IS NO DOUBT THAT CALDWELL COULD NOT BE
BROUGHT BEFORE THE GRAND JURY FOR THE SOLE PURPOSE OF EXPOSING HIS
POLITICAL BELIEFS.  YET TODAY THE COURT EFFECTIVELY PERMITS THAT RESULT
UNDER THE GUISE OF ALLOWING AN ATTEMPT TO ELICIT FROM HIM "FACTUAL
INFORMATION."  TO BE SURE, THE INQUIRY WILL BE COUCHED ONLY IN TERMS OF
EXTRACTING CALDWELL'S RECOLLECTION OF WHAT WAS SAID TO HIM DURING THE
INTERVIEWS, BUT THE FACT REMAINS THAT HIS QUESTIONS TO THE PANTHERS AND
THEREFORE THE RESPECTIVE ANSWERS WERE GUIDED BY CALDWELL'S OWN
PRECONCEPTIONS AND VIEWS ABOUT THE BLACK PANTHERS.  HIS ENTIRE
EXPERIENCE WAS SHAPED BY HIS INTELLECTUAL VIEWPOINT.  UNLIKE THE RANDOM
BYSTANDER, THOSE WHO AFFIRMATIVELY SET OUT TO TEST A HYPOTHESIS, AS
HERE, HAVE NO TIDY MEANS OF SEGREGATING SUBJECTIVE OPINION FROM
OBJECTIVE FACTS. 

SOONER OR LATER, ANY TEST WHICH PROVIDES LESS THAN BLANKET
PROTECTION TO BELIEFS AND ASSOCIATIONS WILL BE TWISTED AND RELAXED SO
AS TO PROVIDE VIRTUALLY NO PROTECTION AT ALL.  AS JUSTICE HOLMES NOTED
IN ABRAMS V. UNITED STATES, 250 U.S. 616, 624, SUCH WAS THE FATE OF THE
"CLEAR AND PRESENT DANGER" TEST WHICH HE HAD COINED IN SCHENCK V.
UNITED STATES, 249 U.S. 47.  EVENTUALLY, THAT FORMULA WAS SO WATERED
DOWN THAT THE DANGER HAD TO BE NEITHER CLEAR NOR PRESENT BUT MERELY
"NOT IMPROBABLE."  DENNIS V. UNITED STATES, 341 U.S. 494, 510.  SEE MY
CONCURRING OPINION IN BRANDENBURG V. OHIO, 395 U.S. 444, 450.  A
COMPELLING-INTEREST TEST MAY PROVE AS PLIABLE AS DID THE CLEAR-AND
PRESENT-DANGER TEST.  PERCEPTIONS OF THE WORTH OF STATE OBJECTIVES WILL
CHANGE WITH THE COMPOSITION OF THE COURT AND WITH THE INTENSITY OF THE
POLITICS OF THE TIMES.  FOR EXAMPLE, IN UPHAUS V. WYMAN, 360 U.S. 72,
SUSTAINING AN ATTEMPT TO COMPEL A WITNESS TO DIVULGE THE NAMES OF
PARTICIPANTS IN A SUMMER POLITICAL CAMP, JUSTICE BRENNAN DISSENTED ON
THE GROUND THAT "IT IS PATENT THAT THERE IS REALLY NO SUBORDINATING
INTEREST . . . DEMONSTRATED ON THE PART OF THE STATE."  ID., AT 106. 
THE MAJORITY, HOWEVER, FOUND THAT "THE GOVERNMENTAL INTEREST IN SELF
PRESERVATION IS SUFFICIENTLY COMPELLING TO SUBORDINATE THE INTEREST IN
ASSOCIATIONAL PRIVACY . . . . "  ID., AT 81.  THAT IS TO ENTER THE
WORLD OF "MAKE BELIEVE," FOR NEW HAMPSHIRE, THE STATE INVOLVED IN
UPHAUS, WAS NEVER IN FEAR OF BEING OVERTHROWN. 

II 

TODAY'S DECISION WILL IMPEDE THE WIDE-OPEN AND ROBUST DISSEMINATION
OF IDEAS AND COUNTERTHOUGHT WHICH A FREE PRESS BOTH FOSTERS AND
PROTECTS AND WHICH IS ESSENTIAL TO THE SUCCESS OF INTELLIGENT SELF
GOVERNMENT.  FORCING A REPORTER BEFORE A GRAND JURY WILL HAVE TWO
RETARDING EFFECTS UPON THE EAR AND THE PEN OF THE PRESS.  FEAR OF
EXPOSURE WILL CAUSE DISSIDENTS TO COMMUNICATE LESS OPENLY TO TRUSTED
REPORTERS.  AND, FEAR OF ACCOUNTABILITY WILL CAUSE EDITORS AND CRITICS
TO WRITE WITH MORE RESTRAINED PENS. 

I SEE NO WAY OF MAKING MANDATORY THE DISCLOSURE OF A REPORTER'S
CONFIDENTIAL SOURCE OF THE INFORMATION ON WHICH HE BASES HIS NEWS
STORY. 

THE PRESS HAS A PREFERRED POSITION IN OUR CONSTITUTIONAL SCHEME, NOT
TO ENABLE IT TO MAKE MONEY, NOT TO SET NEWSMEN APART AS A FAVORED
CLASS, BUT TO BRING FULFILLMENT TO THE PUBLIC'S RIGHT TO KNOW.  THE
RIGHT TO KNOW IS CRUCIAL TO THE GOVERNING POWERS OF THE PEOPLE, TO
PARAPHRASE ALEXANDER MEIKLEJOHN.  KNOWLEDGE IS ESSENTIAL TO INFORMED
DECISIONS. 

AS MR. JUSTICE BLACK SAID IN NEW YORK TIMES CO. V. UNITED STATES,
403 U.S. 713, 717 (CONCURRING OPINION), "THE PRESS WAS TO SERVE THE
GOVERNED, NOT THE GOVERNORS.  . . . THE PRESS WAS PROTECTED SO THAT IT
COULD BARE THE SECRETS OF GOVERNMENT AND INFORM THE PEOPLE." 

GOVERNMENT HAS AN INTEREST IN LAW AND ORDER; AND HISTORY SHOWS THAT
THE TREND OF RULERS-- THE BUREAUCRACY AND THE POLICE-- IS TO SUPPRESS
THE RADICAL AND HIS IDEAS AND TO ARREST HIM RATHER THAN THE HOSTILE
AUDIENCE.  SEE FEINER V. NEW YORK, 340 U.S. 315.  YET, AS HELD IN
TERMINIELLO V. CHICAGO, 337 U.S. 1, 4, ONE "FUNCTION OF FREE SPEECH
UNDER OUR SYSTEM OF GOVERNMENT IS TO INVITE DISPUTE."  WE WENT ON TO
SAY, "IT MAY INDEED BEST SERVE ITS HIGH PURPOSE WHEN IT INDUCES A
CONDITION OF UNREST, CREATES DISSATISFACTION WITH CONDITIONS AS THEY
ARE, OR EVEN STIRS PEOPLE TO ANGER.  SPEECH IS OFTEN PROVOCATIVE AND
CHALLENGING.  IT MAY STRIKE AT PREJUDICES AND PRECONCEPTIONS AND HAVE
PROFOUND UNSETTLING EFFECTS AS IT PRESSES FOR ACCEPTANCE OF AN IDEA." 

THE PEOPLE WHO GOVERN ARE OFTEN FAR REMOVED FROM THE CABALS THAT
THREATEN THE REGIME; THE PEOPLE ARE OFTEN REMOTE FROM THE SOURCES OF
TRUTH EVEN THOUGH THEY LIVE IN THE CITY WHERE THE FORCES THAT WOULD
UNDERMINE SOCIETY OPERATE.  THE FUNCTION OF THE PRESS IS TO EXPLORE AND
IVESTIGATE EVENTS, INFORM THE PEOPLE WHAT IS GOING ON, AND TO EXPOSE
THE HARMFUL AS WELL AS THE GOOD INFLUENCES AT WORK.  THERE IS NO HIGHER
FUNCTION PERFORMED UNDER OUR CONSTITUTIONAL REGIME.  ITS PERFORMANCE
MEANS THAT THE PRESS IS OFTEN ENGAGED IN PROJECTS THAT BRING ANXIETY OR
EVEN FEAR TO THE BUREAUCRACIES, DEPARTMENTS, OR OFFICIALS OF
GOVERNMENT.  THE WHOLE WEIGHT OF GOVERNMENT IS THEREFORE OFTEN BROUGHT
TO BEAR AGAINST A PAPER OR A REPORTER. 

A REPORTER IS NO BETTER THAN HIS SOURCE OF INFORMATION.  UNLESS HE
HAS A PRIVILEGE TO WITHOLD THE IDENTITY OF HIS SOURCE, HE WILL BE THE
VICTIM OF GOVERNMENTAL INTRIGUE OR AGGRESSION.  IF HE CAN BE SUMMONED
TO TESTIFY IN SECRET BEFORE A GRAND JURY, HIS SOURCES WILL DRY UP AND
THE ATTEMPTED EXPOSURE, THE EFFORT TO ENLIGHTEN THE PUBLIC, WILL BE
ENDED.  IF WHAT THE COURT SANCTIONS TODAY BECOMES SETTLED LAW, THEN THE
REPORTER'S MAIN FUNCTION IN AMERICAN SOCIETY WILL BE TO PASS ON TO THE
PUBLIC THE PRESS RELEASES WHICH THE VARIOUS DEPARTMENTS OF GOVERNMENT
ISSUE. 

IT IS NO ANSWER TO REPLY THAT THE RISK THAT A NEWSMAN WILL DIVULGE
ONE'S SECRETS TO THE GRAND JURY IS NO GREATER THAN THE THREAT THAT HE
WILL IN ANY EVENT INFORM TO THE POLICE.  EVEN THE MOST TRUSTWORTHY
REPORTER MAY NOT BE ABLE TO WITHSTAND RELENTLESS BADGERING BEFORE A
GRAND JURY.  /10/ 

THE RECORD IN THIS CASE IS REPLETE WITH WEIGHTY AFFIDAVITS FROM
RESPONSIBLE NEWSMEN, TELLING HOW IMPORTANT IS THE SANCTITY OF THEIR
SOURCES OF INFORMATION.  /11/  WHEN WE DENY NEWSMEN THAT PROTECTION, WE
DEPRIVE THE PEOPLE OF THE INFORMATION NEEDED TO RUN THE AFFAIRS OF THE
NATION IN AN INTELLIGENT WAY. 

MADISON SAID: 

"A POPULAR GOVERNMENT, WITHOUT POPULAR INFORMATION, OR THE MEANS OF
ACQUIRING IT, IS BUT A PROLOGUE TO A FARCE OR A TRAGEDY; OR, PERHAPS
BOTH.  KNOWLEDGE WILL FOREVER GOVERN IGNORANCE:  AND A PEOPLE WHO MEAN
TO BE THEIR OWN GOVERNORS, MUST ARM THEMSELVES WITH THE POWER WHICH
KNOWLEDGE GIVES."  (TO W. T. BARRY, AUG. 4, 1822.)  9 WRITINGS OF JAMES
MADISON 103 (G. HUNT ED. 1910). 

TODAY'S DECISION IS MORE THAN A CLOG UPON NEWS GATHERING.  IT IS A
SIGNAL TO PUBLISHERS AND EDITORS THAT THEY SHOULD EXERCISE CAUTION IN
HOW THEY USE WHATEVER INFORMATION THEY CAN OBTAIN.  WITHOUT IMMUNITY
THEY MAY BE SUMMONED TO ACCOUNT FOR THEIR CRITICISM.  ENTRENCHED
OFFICERS HAVE BEEN QUICK TO CRASH THEIR POWERS DOWN UPON UNFRIENDLY
COMMENTATORS.  /12/  E.G., NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254; GARRISON V. LOUISIANA, 379 U.S. 64; PICKERING V. BOARD OF
EDUCATION, 391 U.S. 563; GRAVEL V. UNITED STATES, ANTE, P. 606. 

THE INTRUSION OF GOVERNMENT INTO THIS DOMAIN IS SYMPTOMATIC OF THE
DISEASE OF THIS SOCIETY.  AS THE YEARS PASS THE POWER OF GOVERNMENT
BECOMES MORE AND MORE PERVASIVE.  IT IS A POWER TO SUFFOCATE BOTH
PEOPLE AND CAUSES.  THOSE IN POWER, WHATEVER THEIR POLITICS, WANT ONLY
TO PERPETUATE IT.  NOW THAT THE FENCES OF THE LAW AND THE TRADITION
THAT HAS PROTECTED THE PRESS ARE BROKEN DOWN, THE PEOPLE ARE THE
VICTIMS.  THE FIRST AMENDMENT, AS I READ IT, WAS DESIGNED PRECISELY TO
PREVENT THAT TRAGEDY. 

I WOULD ALSO REVERSE THE JUDGMENTS IN NO. 70-85, BRANZBURG V. HAYES,
AND NO. 70-94, IN RE PAPPAS, FOR THE REASONS STATED IN THE ABOVE
DISSENT IN NO. 70-57, UNITED STATES V. CALDWELL. 

/1/  "THE THREE MINIMAL TESTS WE CONTEND MUST BE MET BEFORE
TESTIMONY DIVULGING CONFIDENCES MAY BE COMPELLED FROM A REPORTER ARE
THESE:  1.  THE GOVERNMENT MUST CLEARLY SHOW THAT THERE IS PROBABLE
CAUSE TO BELIEVE THAT THE REPORTER POSSESSES INFORMATION WHICH IS
SPECIFICALLY RELEVANT TO A SPECIFIC PROBABLE VIOLATION OF LAW.  2.  THE
GOVERNMENT MUST CLEARLY SHOW THAT THE INFORMATION IT SEEKS CANNOT BE
OBTAINED BY ALTERNATIVE MEANS, WHICH IS TO SAY, FROM SOURCES OTHER THAN
THE REPORTER.  3.  THE GOVERNMENT MUST CLEARLY DEMONSTRATE A COMPELLING
AND OVERRIDING INTEREST IN THE INFORMATION."  BRIEF FOR NEW YORK TIMES
AS AMICUS CURIAE 29. 

/2/  THE FIRST AMENDMENT IS AN ABSOLUTE, 1961 SUP.CT.REV.  245,
254.     /3/  ID., AT 255. 

/4/  ID., AT 257. 

/5/  E.G., SCHENCK V. UNITED STATES, 249 U.S. 47 (WARTIME ANTI-DRAFT
"LEAFLETING"); DEBS V. UNITED STATES, 249 U.S. 211 (WARTIME ANTI-DRAFT
SPEECH); ABRAMS V. UNITED STATES, 250 U.S. 616 (WARTIME LEAFLETING
CALLING FOR GENERAL STRIKE); FEINER V. NEW YORK, 340 U.S. 315 (ARREST
OF RADICAL SPEAKER WITHOUT ATTEMPT TO PROTECT HIM FROM HOSTILE
AUDIENCE); DENNIS V. UNITED STATES, 341 U.S. 494 (REFORMULATION OF TEST
AS "NOT IMPROBABLE" RULE TO SUSTAIN CONVICTION OF KNOWING ADVOCACY OF
OVERTHROW); SCALES V. UNITED STATES, 367 U.S. 203 (KNOWING MEMBERSHIP
IN GROUP WHICH ESPOUSES FORBIDDEN ADVOCACY IS PUNISHABLE).  FOR A MORE
DETAILED ACCOUNT OF THE INFAMY OF THE "CLEAR AND PRESENT DANGER" TEST
SEE MY CONCURRING OPINION IN BRANDENBURG V. OHIO, 395 U.S. 444, 450. 

/6/  E.G., ADLER V. BOARD OF EDUCATION, 342 U.S. 485 (PROTECTION OF
SCHOOLS FROM "POLLUTION" OUTWEIGHS PUBLIC TEACHERS' FREEDOM TO ADVOCATE
VIOLENT OVERTHROW); UPHAUS V. WYMAN, 360 U.S. 72, 79, 81 (PRESERVING
SECURITY OF NEW HAMPSHIRE FROM SUBVERSIVES OUTWEIGHS PRIVACY OF LIST OF
PARTICIPANTS IN SUSPECT SUMMER CAMP); BARENBLATT V. UNITED STATES, 360
U.S. 109 (LEGISLATIVE INQUIRY MORE IMPORTANT THAN PROTECTING HUAC
WITNESS' REFUSAL TO ANSWER WHETHER A THIRD PERSON HAD BEEN A
COMMUNIST); WILKINSON V. UNITED STATES, 365 U.S. 399 (LEGISLATIVE
INQUIRY MORE IMPORTANT THAN PROTECTING HUAC WITNESS' REFUSAL TO SATE
WHETHER HE WAS CURRENTLY A MEMBER OF THE COMMUNIST PARTY); BRADEN V.
UNITED STATES, 365 U.S. 431, 435 (LEGISLATIVE INQUIRY MORE IMPORTANT
THAN PROTECTING HUAC WITNESS' REFUSAL TO STATE WHETHER HE HAD ONCE BEEN
A MEMBER OF THE COMMUNIST PARTY); KONIGSBERG V. STATE BAR, 366 U.S. 36
(REGULATING MEMBERSHIP OF BAR OUTWEIGHS INTEREST OF APPLICANTS IN
REFUSING TO ANSWER QUESTION CONCERNING COMMUNIST AFFILIATIONS); IN RE
ANASTAPLO, 366 U.S. 82 (REGULATING MEMBERSHIP OF BAR OUTWEIGHS
PROTECTION OF APPLICANT'S BELIEF IN DECLARATION OF INDEPENDENCE THAT
CITIZENS SHOULD REVOLT AGAINST AN OPPRESSIVE GOVERNMENT); COMMUNIST
PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1 (NATIONAL
SECURITY OUTWEIGHS PRIVACY OF ASSOCIATION OF LEADERS OF SUSPECT
GROUPS); LAW STUDENTS RESEARCH COUNCIL V. WADMOND, 401 U.S. 154
(REGULATING MEMBERSHIP OF BAR OUTWEIGHS PRIVACY OF APPLICANTS' VIEWS ON
THE SOUNDNESS OF THE CONSTITUTION). 

/7/  THUS, WE HAVE HELD "OVERBROAD" MEASURES WHICH UNDULY RESTRICTED
THE TIME, PLACE, AND MANNER OF EXPRESSION.  SCHNEIDER V. STATE, 308
U.S. 147, 161 (ANTI-LEAFLETING LAW); THORNHILL V. ALABAMA, 310 U.S. 88,
102 (ANTI-BOYCOTT STATUTE); CANTWELL V. CONNECTICUT, 310 U.S. 296
(BREACH-OF-PEACE MEASURE); COX V. LOUISIANA, 379 U.S. 536 (BREACH-OF
PEACE MEASURE); EDWARDS V. SOUTH CAROLINA, 372 U.S. 229 (BREACH-OF
PEACE STATUTE); COHEN V. CALIFORNIA, 403 U.S. 15, 22 (BREACH-OF-PEACE
STATUTE); GOODING V. WILSON, 405 U.S. 518 (BREACH-OF-PEACE STATUTE). 
BUT INSOFAR AS PENALIZING THE CONTENT OF THOUGHT AND OPINION IS
CONCERNED, THE COURT HAS NOT IN RECENT TERMS PERMITTED ANY INTEREST TO
OVERRIDE THE ABSOLUTE PRIVACY OF ONE'S PHILOSOPHY.  TO BE SURE,
OPINIONS HAVE OFTEN ADVERTED TO THE ABSENCE OF A COMPELLING
JUSTIFICATION FOR ATTEMPTED INTRUSIONS INTO PHILOSOPHICAL OR
ASSOCIATIONAL PRIVACY.  E.G., BATES V. LITTLE ROCK, 361 U.S. 516, 523
(DISCLOSURE OF NAACP MEMBERSHIP LISTS TO CITY OFFICIALS); GIBSON V.
FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S. 539, 546
(DISCLOSURE OF NAACP MEMBERSHIP LIST TO STATE LEGISLATURE); DEGREGORY
V. ATTORNEY GENERAL OF NEW HAMPSHIRE, 383 U.S. 825, 829 (WITNESS'
REFUSAL TO STATE WHETHER HE HAD BEEN A MEMBER OF THE COMMUNIST PARTY
THREE YEARS EARLIER); BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1, 6-7
(REFUSAL OF BAR APPLICANT TO STATE WHETHER SHE HAD BEEN A MEMBER OF THE
COMMUNIST PARTY); IN RE STOLAR, 401 U.S. 23 (REFUSAL OF BAR APPLICANT
TO STATE WHETHER HE WAS "LOYAL" TO THE GOVERNMENT); SEE ALSO STREET V.
NEW YORK, 394 U.S. 576 (EXPRESSION OF DISGUST FOR FLAG).  YET WHILE THE
RHETORIC OF THESE OPINIONS DID NOT EXPRESSLY EMBRACE AN ABSOLUTE
PRIVILEGE FOR THE PRIVACY OF OPINIONS AND PHILOSOPHY, THE TREND OF
THOSE RESULTS WAS NOT INCONSISTENT WITH AND IN THEIR TOTALITY APPEARED
TO BE APPROACHING SUCH A DOCTRINE.  MOREOVER, IN ANOTHER GROUP OF
OPINIONS INVALIDATING FOR OVERBREADTH INTRUSIONS INTO THE REALM OF
BELIEF AND ASSOCIATION, THERE WAS NO SPECIFICATION OF WHETHER A DANGER
TEST, A BALANCING PROCESS, AN ABSOLUTE DOCTRINE, OR A COMPELLING
JUSTIFICATION INQUIRY HAD BEEN USED TO DETECT INVALID APPLICATIONS
COMPREHENDED BY THE CHALLENGED MEASURES.  E.G., WIEMAN V. UPDEGRAFF,
344 U.S. 183 (LOYALTY TEST WHICH CONDEMNED MERE UNKNOWING MEMBERSHIP IN
A SUSPECT GROUP); SHELTON V. TUCKER, 364 U.S. 479 (REQUIREMENT THAT
PUBLIC TEACHERS DISCLOSE ALL AFFILIATIONS); LOUISIANA EX REL.
GREMILLION V. NAACP, 366 U.S. 293, 296 (DISCLOSURE OF NAACP MEMBERSHIP
LISTS); WHITEHILL V. ELKINS, 389 U.S. 54, 59 (NONACTIVE MEMBERSHIP IN A
SUSPECT GROUP A PREDICATE FOR REFUSING EMPLOYMENT AS A PUBLIC TEACHER;
UNITED STATES V. ROBEL, 389 U.S. 258 (MERE MEMBERSHIP IN COMMUNIST
PARTY A SOLE GROUND FOR EXCLUSION FROM EMPLOYMENT IN DEFENSE
FACILITY).  REGRETTABLY, THE VITALITY OF THE OVERDUE TREND TOWARD A
COMPLETE PRIVILEGE IN THIS AREA HAS BEEN DRAWN INTO QUESTION BY QUITE
RECENT DECISIONS OF THE COURT, LAW STUDENTS RESEARCH COUNCIL V.
WADMOND, 401 U.S. 154, HOLDING THAT BAR APPLICANTS MAY BE TURNED AWAY
FOR REFUSING TO DISCLOSE THEIR OPINIONS ON THE SOUNDNESS OF THE
CONSTITUTION; COLE V. RICHARDSON, 405 U.S. 676, SUSTAINING AN OATH
REQUIRED OF PUBLIC EMPLOYEES THAT THEY WILL "OPPOSE" A VIOLENT
OVERTHROW; AND, OF COURSE, BY TODAY'S DECISION. 

/8/  WHERE NO MORE THAN ECONOMIC INTERESTS WERE AFFECTED THIS COURT
HAS UPHELD LEGISLATION ONLY UPON A SHOWING THAT IT WAS "RATIONALLY
CONNECTED" TO SOME PERMISSIBLE STATE OBJECTIVE.  E.G., UNITED STATES V.
CAROLENE PRODUCTS CO., 304 U.S. 144, 152; GOESAERT V. CLEARY, 335 U.S.
464; WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483; MCGOWAN V. MARYLAND,
366 U.S. 420; MCDONALD V. BOARD OF ELECTION COMM'RS, 394 U.S. 802;
UNITED STATES V. MARYLAND SAVINGS-SHARE INS. CORP., 400 U.S. 4;
RICHARDSON V. BELCHER, 404 U.S. 78; SCHILB V. KUEBEL, 404 U.S. 357. 

/9/  THE MAJORITY CITES SEVERAL CASES WHICH HELD THAT CERTAIN
BURDENS ON THE PRESS WERE PERMISSIBLE DESPITE INCIDENTAL BURDENS ON ITS
NEW-GATHERING ABILITY.  FOR EXAMPLE, SEE SHEPPARD V. MAXWELL, 384 U.S.
333, 358.  EVEN ASSUMING THAT THOSE CASES WERE RIGHTLY DECIDED, THE
FACT REMAINS THAT IN NONE OF THEM WAS THE GOVERNMENT ATTEMPTING TO
EXTRACT PERSONAL BELIEF FROM A WITNESS AND THE PRIVACY OF A CITIZEN'S
PERSONAL INTELLECTUAL VIEWPOINT WAS NOT IMPLICATED. 

/10/  "THE SECRECY OF THE (GRANT JURY'S) PROCEEDINGS AND THE
POSSIBILITY OF A JAIL SENTENCE FOR CONTEMPT SO INTIMIDATE THE WITNESS
THAT HE MAY BE LED INTO ANSWERING QUESTIONS WHICH PRY INTO HIS PERSONAL
LIFE AND ASSOCIATIONS AND WHICH, IN THE BARGAIN, ARE FREQUENTLY
IMMATERIAL AND VAGUE.  ALONE AND FACED BY EITHER HOSTILE OR APATHETIC
GRAND JURIES, THE WITNESS IS FREQUENTLY UNDONE BY HIS EXPERIENCE.  LIFE
IN A RELATIVELY OPEN SOCIETY MAKES HIM ESPECIALLY VULNERABLE TO A
SECRET APPEARANCE BEFORE A BODY THAT IS CONSIDERING CRIMINAL CHARGES. 
AND THE VERY BODY TOWARD WHICH HE COULD ONCE LOOK FOR PROTECTION HAS
BECOME A WEAPON OF THE PROSECUTION.  WHEN HE SEEKS PROTECTIVE GUIDANCE
FROM HIS LAWYER HE LEARNS THAT THE JUDICIAL BROADENING OF DUE PROCESS
WHICH HAS OCCURRED IN THE PAST TWO DECADES HAS LARGELY IGNORED GRAND
JURY MATTERS, PRECISELY BECAUSE IT WAS ASSUMED THAT THE GRAND JURY
STILL FUNCTIONED AS A GUARDIAN OF THE RIGHTS OF POTENTIAL DEFENDANTS." 
DONNER & CERRUTI, THE GRAND JURY NETWORK:  HOW THE NIXON ADMINISTRATION
HAS SECRETLY PERVERTED A TRADITIONAL SAFEGUARD OF INDIVIDUAL RIGHTS,
214 THE NATION 5, 6 (1972). 

/11/  IT IS SAID THAT "WE REMAIN UNCLEAR HOW OFTEN AND TO WHAT
EXTENT INFORMERS ARE ACTUALLY DETERRED FROM FURNISHING INFORMATION WHEN
NEWSMEN ARE FORCED TO TESTIFY BEFORE A GRAND JURY."  ANTE, AT 693.  BUT
THE MAJORITY NEED LOOK NO FURTHER THAN ITS HOLDINGS THAT PROSECUTORS
NEED NOT DISCLOSE INFORMERS' NAMES BECAUSE DISCLOSURE WOULD (A)
TERMINATE THE USEFULNESS OF AN EXPOSED INFORMANT INASMUCH AS OTHERS
WOULD NO LONGER CONFIDE IN HIM, AND (B) IT WOULD GENERALLY INHIBIT
PERSONS FROM BECOMING CONFIDENTIAL INFORMERS.  MCCRAY V. ILLINOIS, 386
U.S. 300; SCHER V. UNITED STATES, 305 U.S. 251; CF. ROVIARO V. UNITED
STATES, 353 U.S. 53; 

/12/  FOR A SUMMARY OF EARLY REPRISALS AGAINST THE PRESS, SUCH AS
THE JOHN PETER ZENGER TRIAL, THE ALIEN AND SEDITION ACTS PROSECUTIONS,
AND CIVIL WAR SUPPRESSION OF NEWSPAPERS, SEE PRESS FREEDOMS UNDER
PRESSURE, REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON THE
GOVERNMENT AND THE PRESS 3-5 (1972).  WE HAVE NOT OUTLIVED THE TENDENCY
OF OFFICIALS TO RETALIATE AGAINST CRITICS.  FOR RECENT EXAMPLES SEE J.
WIGGINS, FREEDOM OR SECRECY 87 (1956) ("NEW MEXICO, IN 1954, FURNISHED
A STRIKING EXAMPLE OF GOVERNMENT REPRISAL AGAINST . . . A TEACHER IN
THE STATE REFORM SCHOOL (WHO) WROTE A LETTER TO THE NEW MEXICAN,
CONFIRMING STORIES IT HAD PRINTED ABOUT MISTREATMENT OF INMATES BY
GUARDS.  . . . (TWO DAYS LATER HE) WAS NOTIFIED OF HIS DISMISSAL.");
NOTE, THE RIGHT OF GOVERNMENT EMPLOYEES TO FURNISH INFORMATION TO
CONGRESS:  STATUTORY AND CONSTITUTIONAL ASPECTS, 57 VA.L.REV.  885-886
(1971) (DISMISSAL OF AN AIR FORCE EMPLOYEE WHO TESTIFIED BEFORE A
SENATE COMMITTEE WITH RESPECT TO C-5A CARGO PLANE COST OVERRUNS AND
FIRING OF AN FBI AGENT WHO WROTE SENATORS COMPLAINING OF THE BUREAU'S
PERSONNEL PRACTICES); N.Y. TIMES, NOV. 8, 1967, P. 1, COL. 2; ID., NOV.
9, 1967, P. 2, COL. 4 (SELECTIVE SERVICE DIRECTIVE TO LOCAL DRAFT
BOARDS REQUIRING CONSCRIPTION OF THOSE WHO PROTESTED WAR); N.Y. TIMES,
NOV. 11, 1971, P. 95, COL. 4; ID., NOV. 12, 1971, P. 13, COL. 1; ID.,
NOV. 14, 1971, PT. 4, P. 13, COL. 1 (FBI INVESTIGATION OF A TELEVISION
COMMENTATOR WHO CRITICIZED ADMINISTRATION POLICIES); ID., NOV. 14,
1971, P. 75, COL. 3 (DENIAL OF WHITE HOUSE PRESS PASS TO UNDERGROUND
JOURNALIST). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE COURT'S CRABBED VIEW OF THE FIRST AMENDMENT REFLECTS A
DISTURBING INSENSITIVITY TO THE CRITICAL ROLE OF AN INDEPENDENT PRESS
IN OUR SOCIETY.  THE QUESTION WHETHER A REPORTER HAS A CONSTITUTIONAL
RIGHT TO A CONFIDENTIAL RELATIONSHIP WITH HIS SOURCE IS OF FIRST
IMPRESSION HERE, BUT THE PRINCIPLES THAT SHOULD GUIDE OUR DECISION ARE
AS BASIC AS ANY TO BE FOUND IN THE CONSTITUTION.  WHILE MR. JUSTICE
POWELL'S ENIGMATIC CONCURRING OPINION GIVES SOME HOPE OF A MORE
FLEXIBLE VIEW IN THE FUTURE, THE COURT IN THESE CASES HOLDS THAT A
NEWSMAN HAS NO FIRST AMENDMENT RIGHT TO PROTECT HIS SOURCES WHEN CALLED
BEFORE A GRAND JURY.  THE COURT THUS INVITES STATE AND FEDERAL
AUTHORITIES TO UNDERMINE THE HISTORIC INDEPENDENCE OF THE PRESS BY
ATTEMPTING TO ANNEX THE JOURNALISTIC PROFESSION AS AN INVESTIGATIVE ARM
OF GOVERNMENT.  NOT ONLY WILL THIS DECISION IMPAIR PERFORMANCE OF THE
PRESS' CONSTITUTIONALLY PROTECTED FUNCTIONS, BUT IT WILL, I AM
CONVINCED, IN THE LONG RUN HARM RATHER THAN HELP THE ADMINISTRATION OF
JUSTICE. 

I RESPECTFULLY DISSENT. 

 I 

THE REPORTER'S CONSTITUTIONAL RIGHT TO A CONFIDENTIAL RELATIONSHIP
WITH HIS SOURCE STEMS FROM THE BROAD SOCIETAL INTEREST IN A FULL AND
FREE FLOW OF INFORMATION TO THE PUBLIC.  IT IS THIS BASIC CONCERN THAT
UNDERLIES THE CONSTITUTION'S PROTECTION OF A FREE PRESS, GROSJEAN V.
AMERICAN PRESS CO., 297 U.S. 233, 250; NEW YORK TIMES CO. V. SULLIVAN,
376 U.S. 254, 269, /1/  BECAUSE THE GUARANTEE IS "NOT FOR THE BENEFIT
OF THE PRESS SO MUCH AS FOR THE BENEFIT OF ALL OF US."  TIME, INC. V.
HILL, 385 U.S. 374, 389.  /2/ 

ENLIGHTENED CHOICE BY AN INFORMED CITIZENRY IS THE BASIC IDEAL UPON
WHICH AN OPEN SOCIETY IS PREMISED, /3/  AND A FREE PRESS IS THUS
INDISPENSABLE TO A FREE SOCIETY.  NOT ONLY DOES THE PRESS ENHANCE
PERSONAL SELF-FULFILLMENT BY PROVIDING THE PEOPLE WITH THE WIDEST
POSSIBLE RANGE OF FACT AND OPINION, BUT IT ALSO IS AN INCONTESTABLE
PRECONDITION OF SELF-GOVERNMENT.  THE PRESS "HAS BEEN A MIGHTY CATALYST
IN AWAKENING PUBLIC INTEREST IN GOVERNMENTAL AFFAIRS, EXPOSING
CORRUPTION AMONG PUBLIC OFFICERS AND EMPLOYEES AND GENERALLY INFORMING
THE CITIZENRY OF PUBLIC EVENTS AND OCCURRENCES . . . . " ESTES V.
TEXAS, 381 U.S. 532, 539; MILLS V. ALABAMA, 384 U.S. 214, 219;
GROSJEAN, SUPRA, AT 250.  AS PRIVATE AND PUBLIC AGGREGATIONS OF POWER
BURGEON IN SIZE AND THE PRESSURES FOR CONFORMITY NECESSARILY MOUNT,
THERE IS OBVIOUSLY A CONTINUING NEED FOR AN INDEPENDENT PRESS TO
DISSEMINATE A ROBUST VARIETY OF INFORMATION AND OPINION THROUGH
REPORTAGE, INVESTIGATION, AND CRITICISM, IF WE ARE TO PRESERVE OUR
CONSITUTIONAL TRADITION OF MAXIMIZING FREEDOM OF CHOICE BY ENCOURAGING
DIVERSITY OF EXPRESSION. 

    A 

IN KEEPING WITH THIS TRADITION, WE HAVE HELD THAT THE RIGHT TO
PUBLISH IS CENTRAL TO THE FIRST AMENDMENT AND BASIC TO THE EXISTENCE OF
CONSTITUTIONAL DEMOCRACY.  GROSJEAN, SUPRA, AT 250; NEW YORK TIMES,
SUPRA, AT 270. 

A COROLLARY OF THE RIGHT TO PUBLISH MUST BE THE RIGHT TO GATHER
NEWS.  THE FULL FLOW OF INFORMATION TO THE PUBLIC PROTECTED BY THE FREE
PRESS GUARANTEE WOULD BE SEVERELY CURTAILED IF NO PROTECTION WHATEVER
WERE AFFORDED TO THE PROCESS BY WHICH NEWS IS ASSEMBLED AND
DISSEMINATED.  WE HAVE, THEREFORE, RECOGNIZED THAT THERE IS A RIGHT TO
PUBLISH WITHOUT PRIOR GOVERNMENTAL APPROVAL, NEAR V. MINNESOTA, 283
U.S. 697; NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713, A RIGHT TO
DISTRIBUTE INFORMATION, SEE, E.G., LOVELL V. GRIFFIN, 303 U.S. 444,
452; MARSH V. ALABAMA, 326 U.S. 501; MARTIN V. CITY OF STRUTHERS, 319
U.S. 141; GROSJEAN, SUPRA, AND A RIGHT TO RECEIVE PRINTED MATTER,
LAMONT V. POSTMASTER GENERAL, 381 U.S. 301.     NO LESS IMPORTANT TO
THE NEWS DISSEMINATION PROCESS IS THE GATHERING OF INFORMATION.  NEWS
MUST NOT BE UNNECESSARILY CUT OFF AT ITS SOURCE, FOR WITHOUT FREEDOM TO
ACQUIRE INFORMATION THE RIGHT TO PUBLISH WOULD BE IMPERMISSIBLY
COMPROMISED.  ACCORDINGLY, A RIGHT TO GATHER NEWS, OF SOME DIMENSIONS,
MUST EXIST.  ZEMEL V. RUSK, 381 U.S. 1.  /4/  NOTE, THE RIGHT OF THE
PRESS TO GATHER INFORMATION, 71 COL.L.REV.  838 (1971).  AS MADISON
WROTE:  "A POPULAR GOVERNMENT, WITHOUT POPULAR INFORMATION, OR THE
MEANS OF ACQUIRING IT, IS BUT A PROLOGUE TO A FARCE OR A TRAGEDY; OR,
PERHAPS BOTH."  9 WRITINGS OF JAMES MADISON 103 (G. HUNT ED. 1910). 
    B 

THE RIGHT TO GATHER NEWS IMPLIES, IN TURN, A RIGHT TO A CONFIDENTIAL
RELATIONSHIP BETWEEN A REPORTER AND HIS SOURCE.  THIS PROPOSITION
FOLLOWS AS A MATTER OF SIMPLE LOGIC ONCE THREE FACTUAL PREDICATES ARE
RECOGNIZED:  (1) NEWSMEN REQUIRE INFORMANTS TO GATHER NEWS; (2)
CONFIDENTIALITY-- THE PROMISE OR UNDERSTANDING THAT NAMES OR CERTAIN
ASPECTS OF COMMUNICATIONS WILL BE KEPT OFF THE RECORD-- IS ESSENTIAL TO
THE CREATION AND MAINTENANCE OF A NEWS-GATHERING RELATIONSHIP WITH
INFORMANTS; AND (3) AN UNBRIDLED SUBPOENA POWER-- THE ABSENCE OF A
CONSTITUTIONAL RIGHT PROTECTING, IN ANY WAY, A CONFIDENTIAL
RELATIONSHIP FROM COMPULSORY PROCESS-- WILL EITHER DETER SOURCES FROM
DIVULGING INFORMATION OR DETER REPORTERS FROM GATHERING AND PUBLISHING
INFORMATION. 

IT IS OBVIOUS THAT INFORMANTS ARE NECESSARY TO THE NEWS-GATHERING
PROCESS AS WE KNOW IT TODAY.  IF IT IS TO PERFORM ITS CONSTITUTIONAL
MISSION, THE PRESS MUST DO FAR MORE THAN MERELY PRINT PUBLIC STATEMENTS
OR PUBLISH PREPARED HANDOUTS.  FAMILIARITY WITH THE PEOPLE AND
CIRCUMSTANCES INVOLVED IN THE MYRIAD BACKGROUND ACTIVITIES THAT RESULT
IN THE FINAL PRODUCT CALLED "NEWS" IS VITAL TO COMPLETE AND RESPONSIBLE
JOURNALISM, UNLESS THE PRESS IS TO BE A CAPTIVE MOUTHPIECE OF
"NEWSMAKERS."  /5/ 

IT IS EQUALLY OBVIOUS THAT THE PROMISE OF CONFIDENTIALITY MAY BE A
NECESSARY PREREQUISITE TO A PRODUCTIVE RELATIONSHIP BETWEEN A NEWSMAN
AND HIS INFORMANTS.  AN OFFICEHOLDER MAY FEAR HIS SUPERIOR; A MEMBER OF
THE BUREAUCRACY, HIS ASSOCIATES; A DISSIDENT, THE SCORN OF MAJORITY
OPINION.  ALL MAY HAVE INFORMATION VALUABLE TO THE PUBLIC DISCOURSE,
YET EACH MAY BE WILLING TO RELATE THAT INFORMATION ONLY IN CONFIDENCE
TO A REPORTER WHOM HE TRUSTS, EITHER BECAUSE OF EXCESSIVE CAUTION OR
BECAUSE OF A REASONABLE FEAR OF REPRISALS OR CENSURE FOR UNORTHODOX
VIEWS.  THE FIRST AMENDMENT CONCERN MUST NOT BE WITH THE MOTIVES OF ANY
PARTICULAR NEWS SOURCE, BUT RATHER WITH THE CONDITIONS IN WHICH
INFORMANTS OF ALL SHADES OF THE SPECTRUM MAY MAKE INFORMATION AVAILABLE
THROUGH THE PRESS TO THE PUBLIC.  CF. TALLEY V. CALIFORNIA, 362 U.S.
60, 65; BATES V. LITTLE ROCK, 361 U.S. 516; NAACP V. ALABAMA, 357 U.S.
449.  /6/ 

IN CALDWELL, THE DISTRICT COURT FOUND THAT "CONFIDENTIAL
RELATIONSHIPS . . . ARE COMMONLY DEVELOPED AND MAINTAINED BY
PROFESSIONAL JOURNALISTS, AND ARE INDISPENSABLE TO THEIR WORK OF
GATHERING, ANALYZING AND PUBLISHING THE NEWS."  /7/  COMMENTATORS AND
INDIVIDUAL REPORTERS HAVE REPEATEDLY NOTED THE IMPORTANCE OF
CONFIDENTIALITY.  /8/  AND SURVEYS AMONG REPORTERS AND EDITORS INDICATE
THAT THE PROMISE OF NONDISCLOSURE IS NECESSARY FOR MANY TYPES OF NEWS
GATHERING.  /9/ 

FINALLY, AND MOST IMPORTANT, WHEN GOVERNMENTAL OFFICIALS POSSESS AN
UNCHECKED POWER TO COMPEL NEWSMEN TO DISCLOSE INFORMATION RECEIVED IN
CONFIDENCE, SOURCES WILL CLEARLY BE DETERRED FROM GIVING INFORMATION,
AND REPORTERS WILL CLEARLY BE DETERRED FROM PUBLISHING IT, BECAUSE
UNCERTAINTY ABOUT EXERCISE OF THE POWER WILL LEAD TO "SELF
CENSORSHIP."  SMITH V. CALIFORNIA, 361 U.S. 147, 149-154; NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S.,AT 279.  THE UNCERTAINTY ARISES, OF
COURSE, BECAUSE THE JUDICIARY HAS TRADITIONALLY IMPOSED VIRTUALLY NO
LIMITATIONS ON THE GRAND JURY'S BROAD INVESTIGATORY POWERS.  SEE
ANTELL, THE MODERN GRAND JURY:  BENIGHTED SUPERGOVERNMENT, 51 A.B.A.J.
153 (1965).  SEE ALSO PART II, INFRA. 

AFTER TODAY'S DECISION, THE POTENTIAL INFORMANT CAN NEVER BE SURE
THAT HIS IDENTITY OR OFF-THE-RECORD COMMUNICATIONS WILL NOT
SUBSEQUENTLY BE REVEALED THROUGH THE COMPELLED TESTIMONY OF A NEWSMAN. 
A PUBLIC-SPIRITED PERSON INSIDE GOVERNMENT, WHO IS NOT IMPLICATED IN
ANY CRIME, WILL NOW BE FEARFUL OF REVEALING CORRUPTION OR OTHER
GOVERNMENTAL WRONGDOING, BECAUSE HE WILL NOW KNOW HE CAN SUBSEQUENTLY
BE IDENTIFIED BY USE OF COMPULSORY PROCESS.  THE POTENTIAL SOURCE MUST,
THEREFORE, CHOOSE BETWEEN RISKING EXPOSURE BY GIVING INFORMATION OR
AVOIDING THE RISK BY REMAINING SILENT. 

THE REPORTER MUST SPECULATE ABOUT WHETHER CONTACT WITH A
CONTROVERSIAL SOURCE OR PUBLICATION OF CONTROVERSIAL MATERIAL WILL LEAD
TO A SUBPOENA.  IN THE EVENT OF A SUBPOENA, UNDER TODAY'S DECISION, THE
NEWSMAN WILL KNOW THAT HE MUST CHOOSE BETWEEN BEING PUNISHED FOR
CONTEMPT IF HE REFUSES TO TESTIFY, OR VIOLATING HIS PROFESSION'S ETHICS
/10/  AND IMPAIRING HIS RESOURCEFULNESS AS A REPORTER IF HE DISCLOSES
CONFIDENTIAL INFORMATION.  /11/ 

AGAIN, THE COMMONSENSE UNDERSTANDING THAT SUCH DETERRENCE WILL OCCUR
IS BUTTRESSED BY CONCRETE EVIDENCE.  THE EXISTENCE OF DETERRENT EFFECTS
THROUGH FEAR AND SELF-CENSORSHIP WAS IMPRESSIVELY DEVELOPED IN THE
DISTRICT COURT IN CALDWELL.  /12/  INDIVIDUAL REPORTERS /13/  AND
COMMENTATORS /14/  HAVE NOTED SUCH EFFECTS.  SURVEYS HAVE VERIFIED THAT
AN UNBRIDLED SUBPOENA POWER WILL SUBSTANTIALLY IMPAIR THE FLOW OF NEWS
TO THE PUBLIC, ESPECIALLY IN SENSITIVE AREAS INVOLVING GOVERNMENTAL
OFFICIALS, FINANCIAL AFFAIRS, POLITICAL FIGURES, DISSIDENTS, OR
MINORITY GROUPS THAT REQUIRE IN-DEPTH, INVESTIGATIVE REPORTING.  /15/
AND THE JUSTICE DEPARTMENT HAS RECOGNIZED THAT "COMPULSORY PROCESS IN
SOME CIRCUMSTANCES MAY HAVE A LIMITING EFFECT ON THE EXERCISE OF FIRST
AMENDMENT RIGHTS."  /16/ NO EVIDENCE CONTRADICTING THE EXISTENCE OF
SUCH DETERRENT EFFECTS WAS OFFERED AT THE TRIALS OR IN THE BRIEFS HERE
BY THE PETITIONER IN CALDWELL OR BY THE RESPONDENTS IN BRANZBURG AND
PAPPAS. 

THE IMPAIRMENT OF THE FLOW OF NEWS CANNOT, OF COURSE, BE PROVED WITH
SCIENTIFIC PRECISION, AS THE COURT SEEMS TO DEMAND.  OBVIOUSLY, NOT
EVERY NEWS-GATHERING RELATIONSHIP REQUIRES CONFIDENTIALITY.  AND IT IS
DIFFICULT TO PINPOINT PRECISELY HOW MANY RELATIONSHIPS DO REQUIRE A
PROMISE OR UNDERSTANDING OF NONDISCLOSURE.  BUT WE HAVE NEVER BEFORE
DEMANDED THAT FIRST AMENDMENT RIGHTS REST ON ELABORATE EMPIRICAL
STUDIES DEMONSTRATING BEYOND ANY CONCEIVABLE DOUBT THAT DETERRENT
EFFECTS EXIST; WE HAVE NEVER BEFORE REQUIRED PROOF OF THE EXACT NUMBER
OF PEOPLE POTENTIALLY AFFECTED BY GOVERNMENTAL ACTION, WHO WOULD
ACTUALLY BE DISSUADED FROM ENGAGING IN FIRST AMENDMENT ACTIVITY. 

RATHER, ON THE BASIS OF COMMON SENSE AND AVAILABLE INFORMATION, WE
HAVE ASKED, OFTEN IMPLICITLY, (1) WHETHER THERE WAS A RATIONAL
CONNECTION BETWEEN THE CAUSE (THE GOVERNMENTAL ACTION) AND THE EFFECT
(THE DETERRENCE OR IMPAIRMENT OF FIRST AMENDMENT ACTIVITY), AND (2)
WHETHER THE EFFECT WOULD OCCUR WITH SOME REGULARITY, I.E., WOULD NOT BE
DE MINIMIS.  SEE, E.G., GROSJEAN V. AMERICAN PRESS CO., 297 U.S.,AT 244
245; BURSTYN, INC. V. WILSON, 343 U.S. 495, 503; SWEEZY V. NEW
HAMPSHIRE, 354 U.S. 234, 248 (PLURALITY OPINION); NAACP V. ALABAMA, 357
U.S.,AT 461-466; SMITH V. CALIFORNIA, 361 U.S.,AT 150-154; BATES V.
LITTLE ROCK, 361 U.S.,AT 523-524; TALLEY V. CALIFORNIA, 362 U.S.,AT 64
65; SHELTON V. TUCKER, 364 U.S. 479, 485-486; CRAMP V. BOARD OF PUBLIC
INSTRUCTION, 368 U.S. 278, 286; NAACP V. BUTTON, 371 U.S. 415, 431-438;
GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S. 539,
555-557; NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.,AT 277-278; FREEDMAN
V. MARYLAND, 380 U.S. 51, 59; DEGREGORY V. NEW HAMPSHIRE ATTORNEY
GENERAL, 383 U.S. 825; ELFBRANDT V. RUSSELL, 384 U.S. 11, 16-19.  AND,
IN MAKING THIS DETERMINATION, WE HAVE SHOWN A SPECIAL SOLICITUDE
TOWARDS THE "INDISPENSABLE LIBERTIES" PROTECTED BY THE FIRST AMENDMENT,
NAACP V. ALABAMA, SUPRA, AT 461; BANTAM BOOKS, INC. V. SULLIVAN, 372
U.S. 58, 66, FOR "(FREEDOMS SUCH AS THESE ARE PROTECTED NOT ONLY
AGAINST HEAVY-HANDED FRONTAL ATTACK, BUT ALSO FROM BEING STIFLED BY
MORE SUBTLE GOVERNMENTAL INTERFERENCE."  BATES, SUPRA, AT 523.  /17/
ONCE THIS THRESHOLD INQUIRY HAS BEEN SATISFIED, WE HAVE THEN EXAMINED
THE COMPETING INTERESTS IN DETERMINING WHETHER THERE IS AN
UNCONSTITUTIONAL INFRINGEMENT OF FIRST AMENDMENT FREEDOMS. 

FOR EXAMPLE, IN NAACP V. ALABAMA, SUPRA, WE FOUND THAT COMPELLED
DISCLOSURE OF THE NAMES OF THOSE IN ALABAMA WHO BELONGED TO THE NAACP
"IS LIKELY TO AFFECT ADVERSELY THE ABILITY (OF THE NAACP) AND ITS
MEMBERS TO PURSUE THEIR . . . BELIEFS WHICH THEY ADMITTEDLY HAVE THE
RIGHT TO ADVOCATE, IN THAT IT MAY INDUCE MEMBERS TO WITHDRAW FROM THE
ASSOCIATION AND DISSUADE OTHERS FROM JOINING IT BECAUSE OF FEAR OF
EXPOSURE OF THEIR BELIEFS SHOWN THROUGH THEIR ASSOCIATIONS AND OF THE
CONSEQUENCES OF THIS EXPOSURE."  ID., AT 462-463.  IN TALLEY, SUPRA, WE
HELD INVALID A CITY ORDINANCE THAT FORBADE CIRCULATION OF ANY HANDBILL
THAT DID NOT HAVE THE DISTRIBUTOR'S NAME ON IT, FOR THERE WAS "NO DOUBT
THAT SUCH AN IDENTIFICATION REQUIREMENT WOULD TEND TO RESTRICT FREEDOM
TO DISTRIBUTE INFORMATION AND THEREBY FREEDOM OF EXPRESSION."  ID., AT
64.  AND IN BURSTYN, INC., SUPRA, WE FOUND DETERRENCE OF FIRST
AMENDMENT ACTIVITY INHERENT IN A CENSOR'S POWER TO EXERCISE UNBRIDLED
DISCRETION UNDER AN OVERBROAD STATUTE.  ID., AT 503. 

SURELY THE ANALOGOUS CLAIM OF DETERRENCE HERE IS AS SECURELY
GROUNDED IN EVIDENCE AND COMMON SENSE AS THE CLAIMS IN THE CASES CITED
ABOVE, ALTHOUGH THE COURT CALLS THE CLAIM "SPECULATIVE."  SEE ANTE, AT
694.  THE DETERRENCE MAY NOT OCCUR IN EVERY CONFIDENTIAL RELATIONSHIP
BETWEEN A REPORTER AND HIS SOURCE.  /18/  BUT IT WILL CERTAINLY OCCUR
IN CERTAIN TYPES OF RELATIONSHIPS INVOLVING SENSITIVE AND CONTROVERSIAL
MATTERS.  AND SUCH RELATIONSHIPS ARE VITAL TO THE FREE FLOW OF
INFORMATION. 

TO REQUIRE ANY GREATER BURDEN OF PROOF IS TO SHIRK OUR DUTY TO
PROTECT VALUES SECURELY EMBEDDED IN THE CONSTITUTION.  WE CANNOT AWAIT
AN UNEQUIVOCAL-- AND THEREFORE UNATTAINABLE-- IMPRIMATUR FROM EMPIRICAL
STUDIES.  /19/  WE CAN AND MUST ACCEPT THE EVIDENCE DEVELOPED IN THE
RECORD, AND ELSEWHERE, THAT OVERWHELMINGLY SUPPORTS THE PREMISE THAT
DETERRENCE WILL OCCUR WITH REGULARITY IN IMPORTANT TYPES OF NEWS
GATHERING RELATIONSHIPS.  /20/ 

THUS, WE CANNOT ESCAPE THE CONCLUSION THAT WHEN NEITHER THE REPORTER
NOR HIS SOURCE CAN RELY ON THE SHIELD OF CONFIDENTIALITY AGAINST
UNRESTRAINED USE OF THE GRAND JURY'S SUBPOENA POWER, VALUABLE
INFORMATION WILL NOT BE PUBLISHED AND THE PUBLIC DIALOGUE WILL
INEVITABLY BE IMPOVERISHED. 

        II 

POSED AGAINST THE FIRST AMENDMENT'S PROTECTION OF THE NEWSMAN'S
CONFIDENTIAL RELATIONSHIPS IN THESE CASES IS SOCIETY'S INTEREST IN THE
USE OF THE GRAND JURY TO ADMINISTER JUSTICE FAIRLY AND EFFECTIVELY. 
THE GRAND JURY SERVES TWO IMPORTANT FUNCTIONS:  "TO EXAMINE INTO THE
COMMISSION OF CRIMES" AND "TO STAND BETWEEN THE PROSECUTOR AND THE
ACCUSED, AND TO DETERMINE WHETHER THE CHARGE WAS FOUNDED UPON CREDIBLE
TESTIMONY OR WAS DICTATED BY MALICE OR PERSONAL ILL WILL."  HALE V.
HENKEL, 201 U.S. 43, 59.  AND TO PERFORM THESE FUNCTIONS THE GRAND JURY
MUST HAVE AVAILABLE TO IT EVERY MAN'S RELEVANT EVIDENCE.  SEE BLAIR V.
UNITED STATES, 250 U.S. 273, 281; BLACKMER V. UNITED STATES, 284 U.S.
421, 438. 

YET THE LONGSTANDING RULE MAKING EVERY PERSON'S EVIDENCE AVAILABLE
TO THE GRAND JURY IS NOT ABSOLUTE.  THE RULE HAS BEEN LIMITED BY THE
FIFTH AMENDMENT, /22/  AND THE EVIDENTIARY PRIVILEGES OF THE COMMON
LAW.  /23/  SO IT WAS THAT IN BLAIR, SUPRA, AFTER RECOGNIZING THAT THE
RIGHT AGAINST COMPULSORY SELF-INCRIMINATION PROHIBITED CERTAIN
INQUIRIES, THE COURT NOTED THAT "SOME CONFIDENTIAL MATTERS ARE SHIELDED
FROM CONSIDERATIONS OF POLICY, AND PERHAPS IN OTHER CASES FOR SPECIAL
REASONS A WITNESS MAY BE EXCUSED FROM TELLING ALL THAT HE KNOWS."  ID.,
AT 281 (EMPHASIS SUPPLIED).  AND IN UNITED STATES V. BRYAN, 339 U.S.
323, THE COURT OBSERVED THAT ANY EXEMPTION FROM THE DUTY TO TESTIFY
BEFORE THE GRAND JURY "PRESUPPOSES A VERY REAL INTEREST TO BE
PROTECTED."  ID., AT 332. 

SUCH AN INTEREST MUST SURELY BE THE FIRST AMENDMENT PROTECTION OF A
CONFIDENTIAL RELATIONSHIP THAT I HAVE DISCUSSED ABOVE IN PART I. AS
NOTED THERE, THIS PROTECTION DOES NOT EXIST FOR THE PURELY PRIVATE
INTERESTS OF THE NEWSMAN OR HIS INFORMANT, NOR EVEN, AT BOTTOM, FOR THE
FIRST AMENDMENT INTERESTS OF EITHER PARTNER IN THE NEWS-GATHERING
RELATIONSHIP.  /24/  RATHER, IT FUNCTIONS TO INSURE NOTHING LESS THAN
DEMOCRATIC DECISIONMAKING THROUGH THE FREE FLOW OF INFORMATION TO THE
PUBLIC, AND IT SERVES, THEREBY, TO HONOR THE "PROFOUND NATIONAL
COMMITMENT TO THE PRINCIPLE THAT DEBATE ON PUBLIC ISSUES SHOULD BE
UNINHIBITED, ROBUST, AND WIDE-OPEN."  NEW YORK TIMES CO. V. SULLIVAN,
376 U.S.,AT 270. 

IN STRIKING THE PROPER BALANCE BETWEEN THE PUBLIC INTEREST IN THE
EFFICIENT ADMINISTRATION OF JUSTICE AND THE FIRST AMENDMENT GUARANTEE
OF THE FULLEST FLOW OF INFORMATION, WE MUST BEGIN WITH THE BASIC
PROPOSITION THAT BECAUSE OF THEIR "DELICATE AND VULNERABLE" NATURE,
NAACP V. BUTTON, 371 U.S.,AT 433, AND THEIR TRANSCENDENT IMPORTANCE FOR
THE JUST FUNCTIONING OF OUR SOCIETY, FIRST AMENDMENT RIGHTS REQUIRE
SPECIAL SAFEGUARDS. 

        A 

THIS COURT HAS ERECTED SUCH SAFEGUARDS WHEN GOVERNMENT, BY
LEGISLATIVE INVESTIGATION OR OTHER INVESTIGATIVE MEANS, HAS ATTEMPTED
TO PIERCE THE SHIELD OF PRIVACY INHERENT IN FREEDOM OF ASSOCIATION. 
/25/  IN NO PREVIOUS CASE HAVE WE CONSIDERED THE EXTENT TO WHICH THE
FIRST AMENDMENT LIMITS THE GRAND JURY SUBPOENA POWER.  BUT THE COURT
HAS SAID THAT "(THE BILL OF RIGHTS IS APPLICABLE TO INVESTIGATIONS AS
TO ALL FORMS OF GOVERNMENTAL ACTION.  WITNESSES CANNOT BE COMPELLED TO
GIVE EVIDENCE AGAINST THEMSELVES.  THEY CANNOT BE SUBJECTED TO
UNREASONABLE SEARCH AND SEIZURE.  NOR CAN THE FIRST AMENDMENT FREEDOMS
OF SPEECH, PRESS . . . OR POLITICAL BELIEF AND ASSOCIATION BE
ABRIDGED."  WATKINS V. UNITED STATES, 354 U.S. 178, 188.  AND IN SWEEZY
V. NEW HAMPSHIRE IT WAS STATED:  "IT IS PARTICULARLY IMPORTANT THAT THE
EXERCISE OF THE POWER OF COMPULSORY PROCESS BY CAREFULLY CIRCUMSCRIBED
WHEN THE INVESTIGATIVE PROCESS TENDS TO IMPINGE UPON SUCH HIGHLY
SENSITIVE AREAS AS FREEDOM OF SPEECH OR PRESS, FREEDOM OF POLITICAL
ASSOCIATION, AND FREEDOM OF COMMUNICATION OF IDEAS."  354 U.S.,AT 245
(PLURALITY OPINION).     THE ESTABLISHED METHOD OF "CAREFULLY"
CIRCUMSCRIBING INVESTIGATIVE POWERS IS TO PLACE A HEAVY BURDEN OF
JUSTIFICATION ON GOVERNMENT OFFICIALS WHEN FIRST AMENDMENT RIGHTS ARE
IMPAIRED.  THE DECISIONS OF THIS COURT HAVE "CONSISTENTLY HELD THAT
ONLY A COMPELLING STATE INTEREST IN THE REGULATION OF A SUBJECT WITHIN
THE STATE'S CONSTITUTIONAL POWER TO REGULATE CAN JUSTIFY LIMITING FIRST
AMENDMENT FREEDOMS."  NAACP V. BUTTON, 371 U.S.,AT 438.  AND "IT IS AN
ESSENTIAL PREREQUISITE TO THE VALIDITY OF AN INVESTIGATION WHICH
INTRUDES INTO THE AREA OF CONSTITUTIONALLY PROTECTED RIGHTS OF SPEECH,
PRESS, ASSOCIATION AND PETITION THAT THE STATE CONVINCINGLY SHOW A
SUBSTANTIAL RELATION BETWEEN THE INFORMATION SOUGHT AND A SUBJECT OF
OVERRIDING AND COMPELLING STATE INTEREST."  GIBSON V. FLORIDA
LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S.,AT 546.  SEE ALSO
DEGREGORY V. ATTORNEY GENERAL OF NEW HAMPSHIRE, 383 U.S. 825; NAACP V.
ALABAMA, 357 U.S. 449; SWEEZY, SUPRA; WATKINS, SUPRA. 

THUS, WHEN AN INVESTIGATION IMPINGES ON FIRST AMENDMENT RIGHTS, THE
GOVERNMENT MUST NOT ONLY SHOW THAT THE INQUIRY IS OF "COMPELLING AND
OVERRIDING IMPORTANCE" BUT IT MUST ALSO "CONVINCINGLY" DEMONSTRATE THAT
THE INVESTIGATION IS "SUBSTANTIALLY RELATED" TO THE INFORMATION
SOUGHT. 

GOVERNMENTAL OFFICIALS MUST, THEREFORE, DEMONSTRATE THAT THE
INFORMATION SOUGHT IS CLEARLY RELEVANT TO A PRECISELY DEFINED SUBJECT
OF GOVERNMENTAL INQUIRY.  WATKINS, SUPRA; SWEEZY, SUPRA.  /26/  THEY
MUST DEMONSTRATE THAT IT IS REASONABLE TO THINK THE WITNESS IN QUESTION
HAS THAT INFORMATION.  SWEEZY, SUPRA; GIBSON, SUPRA.  /27/  AND THEY
MUST SHOW THAT THERE IS NOT ANY MEANS OF OBTAINING THE INFORMATION LESS
DESTRUCTIVE OF FIRST AMENDMENT LIBERTIES.  SHELTON V. TUCKER, 364
U.S.,AT 488; LOUISIANA EX REL. GREMILLION V. NAACP, 366 U.S. 293, 296
297.  /28/ 

THESE REQUIREMENTS, WHICH WE HAVE RECOGNIZED IN DECISIONS INVOLVING
LEGISLATIVE AND EXECUTIVE INVESTIGATIONS, SERVE ESTABLISHED POLICIES
REFLECTED IN NUMEROUS FIRST AMENDMENT DECISIONS ARISING IN OTHER
CONTEXTS.  THE REQUIREMENTS MILITATE AGAINST VAGUE INVESTIGATIONS THAT,
LIKE VAGUE LAWS, CREATE UNCERTAINTY AND NEEDLESSLY DISCOURAGE FIRST
AMENDMENT ACTIVITY.  /29/ THEY ALSO INSURE THAT A LEGITIMATE
GOVERNMENTAL PURPOSE WILL NOT BE PURSUED BY MEANS THAT "BROADLY STIFLE
FUNDAMENTAL PERSONAL LIBERTIES WHEN THE END CAN BE MORE NARROWLY
ACHIEVED."  SHELTON, SUPRA, AT 488.  /30/  AS WE SAID IN GIBSON, SUPRA,
"OF COURSE, A LEGISLATIVE INVESTIGATION-- AS ANY INVESTIGATION-- MUST
PROCEED 'STEP BY STEP,'  . . . BUT STEP BY STEP OR IN TOTALITY, AN
ADEQUATE FOUNDATION FOR INQUIRY MUST BE LAID BEFORE PROCEEDING IN SUCH
A MANNER AS WILL SUBSTANTIALLY INTRUDE UPON AND SEVERELY CURTAIL OR
INHIBIT CONSTITUTIONALLY PROTECTED ACTIVITIES OR SERIOUSLY INTERFERE
WITH SIMILARLY PROTECTED ASSOCIATIONAL RIGHTS."  372 U.S.,AT 557. 

I BELIEVE THE SAFEGUARDS DEVELOPED IN OUR DECISIONS INVOLVING
GOVERNMENTAL INVESTIGATIONS MUST APPLY TO THE GRAND JURY INQUIRIES IN
THESE CASES.  SURELY THE FUNCTION OF THE GRAND JURY TO AID IN THE
ENFORCEMENT OF THE LAW IS NO MORE IMPORTANT THAN THE FUNCTION OF THE
LEGISLATURE, AND ITS COMMITTEES, TO MAKE THE LAW.  WE HAVE LONG
RECOGNIZED THE VALUE OF THE ROLE PLAYED BY LEGISLATIVE INVESTIGATIONS,
SEE, E.G., UNITED STATES V. RUMELY, 345 U.S. 41, 43; BARENBLATT V.
UNITED STATES, 360 U.S. 109, 111-112, FOR THE "POWER OF THE CONGRESS TO
CONDUCT INVESTIGATIONS IS INHERENT . . . (ENCOMPASSING) SURVEYS OF
DEFECTS IN OUR SOCIAL, ECONOMIC OR POLITICAL SYSTEM FOR THE PURPOSE OF
ENABLING THE CONGRESS TO REMEDY THEM."  WATKINS, SUPRA, AT 187. 
SIMILARLY, THE ASSOCIATIONAL RIGHTS OF PRIVATE INDIVIDUALS, WHICH HAVE
BEEN THE PRIME FOCUS OF OUR FIRST AMENDMENT DECISIONS IN THE
INVESTIGATIVE SPHERE, ARE HARDLY MORE IMPORTANT THAN THE FIRST
AMENDMENT RIGHTS OF MASS CIRCULATION NEWSPAPERS AND ELECTRONIC MEDIA TO
DISSEMINATE IDEAS AND INFORMATION, AND OF THE GENERAL PUBLIC TO RECEIVE
THEM.  MOREOVER, THE VICES OF VAGUENESS AND OVERBREADTH THAT
LEGISLATIVE INVESTIGATIONS MAY MANIFEST ARE ALSO EXHIBITED BY GRAND
JURY INQUIRIES, SINCE GRAND JURY INVESTIGATIONS ARE NOT LIMITED IN
SCOPE TO SPECIFIC CRIMINAL ACTS, SEE, E.G., WILSON V. UNITED STATES,
221 U.S. 361, HENDRICKS V. UNITED STATES, 223 U.S. 178, 184, UNITED
STATES V. JOHNSON, 319 U.S. 503, AND SINCE STANDARDS OF MATERIALITY AND
RELEVANCE ARE GREATLY RELAXED.  HOLT V. UNITED STATES, 218 U.S. 245;
COSTELLO V. UNITED STATES, 350 U.S. 359.  SEE GENERALLY NOTE, THE GRAND
JURY AS AN INVESTIGATORY BODY, 74 HARV.L.REV.  590, 591-592 (1961). 
/31/  FOR, AS THE UNITED STATES NOTES IN ITS BRIEF IN CALDWELL, THE
GRAND JURY "NEED ESTABLISH NO FACTUAL BASIS FOR COMMENCING AN
INVESTIGATION, AND CAN PURSUE RUMORS WHICH FURTHER INVESTIGATION MAY
PROVE GROUNDLESS." 

ACCORDINGLY, WHEN A REPORTER IS ASKED TO APPEAR BEFORE A GRAND JURY
AND REVEAL CONFIDENCES, I WOULD HOLD THAT THE GOVERNMENT MUST (1) SHOW
THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT THE NEWSMAN HAS
INFORMATION THAT IS CLEARLY RELEVANT TO A SPECIFIC PROBABLE VIOLATION
OF LAW; /32/ (2) DEMONSTRATE THAT THE INFORMATION SOUGHT CANNOT BE
OBTAINED BY ALTERNATIVE MEANS LESS DESTRUCTIVE OF FIRST AMENDMENT
RIGHTS; AND (3) DEMONSTRATE A COMPELLING AND OVERRIDING INTEREST IN THE
INFORMATION.  /33/ 

THIS IS NOT TO SAY THAT A GRAND JURY COULD NOT ISSUE A SUBPOENA
UNTIL SUCH A SHOWING WERE MADE, AND IT IS NOT TO SAY THAT A NEWSMAN
WOULD BE IN ANY WAY PRIVILEGED TO IGNORE ANY SUBPOENA THAT WAS ISSUED. 
OBVIOUSLY, BEFORE THE GOVERNMENT'S BURDEN TO MAKE SUCH A SHOWING WERE
TRIGGERED, THE REPORTER WOULD HAVE TO MOVE TO QUASH THE SUBPOENA,
ASSERTING THE BASIS ON WHICH HE CONSIDERED THE PARTICULAR RELATIONSHIP
A CONFIDENTIAL ONE. 

        B 

THE CRUX OF THE COURT'S REJECTION OF ANY NEWSMAN'S PRIVILEGE IS ITS
OBSERVATION THAT ONLY "WHERE NEWS SOURCES THEMSELVES ARE IMPLICATED IN
CRIME OR POSSESS INFORMATION RELEVANT TO THE GRAND JURY'S TASK NEED
THEY OR THE REPORTER BE CONCERNED ABOUT GRAND JURY SUBPOENAS."  SEE
ANTE, AT 691.  BUT THIS IS A MOST MISLEADING CONSTRUCT.  FOR IT IS
OBVIOUSLY NOT TRUE THAT THE ONLY PERSONS ABOUT WHOM REPORTERS WILL BE
FORCED TO TESTIFY WILL BE THOSE "CONFIDENTIAL INFORMANTS INVOLVED IN
ACTUAL CRIMINAL CONDUCT" AND THOSE HAVING "INFORMATION SUGGESTING
ILLEGAL CONDUCT BY OTHERS."  SEE ANTE, AT 691, 693.  AS NOTED ABOVE,
GIVEN THE GRAND JURY'S EXTRAORDINARILY BROAD INVESTIGATIVE POWERS AND
THE WEAK STANDARDS OF RELEVANCE AND MATERIALITY THAT APPLY DURING SUCH
INQUIRIES, REPORTERS, IF THEY HAVE NO TESTIMONIAL PRIVILEGE, WILL BE
CALLED TO GIVE INFORMATION ABOUT INFORMANTS WHO HAVE NEITHER COMMITTED
CRIMES NOR HAVE INFORMATION ABOUT CRIME.  IT IS TO AVOID DETERRENCE OF
SUCH SOURCES AND THUS TO PREVENT NEEDLESS INJURY TO FIRST AMENDMENT
VALUES THAT I THINK THE GOVERNMENT MUST BE REQUIRED TO SHOW PROBABLE
CAUSE THAT THE NEWSMAN HAS INFORMATION THAT IS CLEARLY RELEVANT TO A
SPECIFIC PROBABLE VIOLATION OF CRIMINAL LAW.  /34/ 

SIMILARLY, A REPORTER MAY HAVE INFORMATION FROM A CONFIDENTIAL
SOURCE THAT IS "RELATED" TO THE COMMISSION OF CRIME, BUT THE GOVERNMENT
MAY BE ABLE TO OBTAIN AN INDICTMENT OR OTHERWISE ACHIEVE ITS PURPOSES
BY SUBPOENAING PERSONS OTHER THAN THE REPORTER.  IT IS AN OBVIOUS BUT
IMPORTANT TRUISM THAT WHEN GOVERNMENT AIMS HAVE BEEN FULLY SERVED,
THERE CAN BE NO LEGITIMATE REASON TO DISRUPT A CONFIDENTIAL
RELATIONSHIP BETWEEN A REPORTER AND HIS SOURCE.  TO DO SO WOULD NOT AID
THE ADMINISTRATION OF JUSTICE AND WOULD ONLY IMPAIR THE FLOW OF
INFORMATION TO THE PUBLIC.  THUS, IT IS TO AVOID DETERRENCE OF SUCH
SOURCES THAT I THINK THE GOVERNMENT MUST SHOW THAT THERE ARE NO
ALTERNATIVE MEANS FOR THE GRAND JURY TO OBTAIN THE INFORMATION SOUGHT. 

BOTH THE "PROBABLE CAUSE" AND "ALTERNATIVE MEANS" REQUIREMENTS WOULD
THUS SERVE THE VITAL FUNCTION OF MEDIATING BETWEEN THE PUBLIC INTEREST
IN THE ADMINISTRATION OF JUSTICE AND THE CONSTITUTIONAL PROTECTION OF
THE FULL FLOW OF INFORMATION.  THESE REQUIREMENTS WOULD AVOID A DIRECT
CONFLICT BETWEEN THESE COMPETING CONCERNS, AND THEY WOULD GENERALLY
PROVIDE ADEQUATE PROTECTION FOR NEWSMEN.  SEE PART III, INFRA.  /35/
NO DOUBT THE COURTS WOULD BE REQUIRED TO MAKE SOME DELICATE JUDGMENTS
IN WORKING OUT THIS ACCOMMODATION.  BUT THAT, AFTER ALL, IS THE
FUNCTION OF COURTS OF LAW.  BETTER SUCH JUDGMENTS, HOWEVER DIFFICULT,
THAN THE SIMPLISTIC AND STULTIFYING ABSOLUTISM ADOPTED BY THE COURT IN
DENYING ANY FORCE TO THE FIRST AMENDMENT IN THESE CASES.  /36/ 

THE ERROR IN THE COURT'S ABSOLUTE REJECTION OF FIRST AMENDMENT
INTERESTS IN THESE CASES SEEMS TO ME TO BE MOST PROFOUND.  FOR IN THE
NAME OF ADVANCING THE ADMINISTRATION OF JUSTICE, THE COURT'S DECISION,
I THINK, WILL ONLY IMPAIR THE ACHIEVEMENT OF THAT GOAL.  PEOPLE
ENTRUSTED WITH LAW ENFORCEMENT RESPONSIBILITY, NO LESS THAN PRIVATE
CITIZENS, NEED GENERAL INFORMATION RELATING TO CONTROVERSIAL SOCIAL
PROBLEMS.  OBVIOUSLY, PRESS REPORTS HAVE GREAT VALUE TO GOVERNMENT,
EVEN WHEN THE NEWSMAN CANNOT BE COMPELLED TO TESTIFY BEFORE A GRAND
JURY.  THE SAD PARADOX OF THE COURT'S POSITION IS THAT WHEN A GRAND
JURY MAY EXERCISE AN UNBRIDLED SUBPOENA POWER, AND SOURCES INVOLVED IN
SENSITIVE MATTERS BECOME FEARFUL OF DISCLOSING INFORMATION, THE NEWSMAN
WILL NOT ONLY CEASE TO BE A USEFUL GRAND JURY WITNESS; HE WILL CEASE TO
INVESTIGATE AND PUBLISH INFORMATION ABOUT ISSUES OF PUBLIC IMPORT.  I
CANNOT SUBSCRIBE TO SUCH AN ANOMALOUS RESULT, FOR, IN MY VIEW, THE
INTERESTS PROTECTED BY THE FIRST AMENDMENT ARE NOT ANTAGONISTIC TO THE
ADMINISTRATION OF JUSTICE.  RATHER, THEY CAN, IN THE LONG RUN, ONLY BE
COMPLEMENTARY, AND FOR THAT REASON MUST BE GIVEN GREAT "BREATHING
SPACE."  NAACP V. BUTTON, 371 U.S.,AT 433. 

        III 

IN DECIDING WHAT PROTECTION SHOULD BE GIVEN TO INFORMATION A
REPORTER RECEIVES IN CONFIDENCE FROM A NEWS SOURCE, THE COURT OF
APPEALS FOR THE NINTH CIRCUIT AFFIRMED THE HODING OF THE DISTRICT COURT
THAT THE GRAND JURY POWER OF TESTIMONIAL COMPULSION MUST NOT BE
EXERCISED IN A MANNER LIKELY TO IMPAIR FIRST AMENDMENT INTERESTS "UNTIL
THERE HAS BEEN A CLEAR SHOWING OF A COMPELLING AND OVERRIDING NATIONAL
INTEREST THAT CANNOT BE SERVED BY ANY ALTERNATIVE MEANS."  CALDWELL V.
UNITED STATES, 434 F.2D 1081, 1086.  IT APPROVED THE REQUEST OF
RESPONDENT CALDWELL FOR SPECIFICATION BY THE GOBERNMENT OF THE
"SUBJECT, DIRECTION OR SCOPE OF THE GRAND JURY INQUIRY."  ID., AT
1085.  AND IT HELD THAT IN THE CIRCUMSTANCES OF THIS CASE CALDWELL NEED
NOT DIVULGE CONFIDENTIAL INFORMATION. 

I THINK THIS DECISION WAS CORRECT.  ON THE RECORD BEFORE US THE
UNITED STATES HAS NOT MET THE BURDEN THAT I THINK THE APPROPRIATE
NEWSMAN'S PRIVILEGE SHOULD REQUIRE. 

IN AFFIDAVITS BEFORE THE DISTRICT COURT, THE UNITED STATES SAID IT
WAS INVESTIGATING POSSIBLE VIOLATIONS OF 18 U.S.C. 871 (THREATS AGAINST
THE PRESIDENT), 18 U.S.C. 1751 (ASSASSINATION, ATTEMPTS TO ASSASSINATE,
CONSPIRACY TO ASSASSINATE THE PRESIDENT), 18 U.S.C. 231 (CIVIL
DISORDERS), 18 U.S.C. 2101 (INTERSTATE TRAVEL TO INCITE A RIOT), 18
U.S.C. 1341 (MAIL FRAUD AND SWINDLES) AND OTHER CRIMES THAT WERE NOT
SPECIFIED.  BUT, WITH ONE EXCEPTION, THERE HAS BEEN NO FACTUAL SHOWING
IN THIS CASE OF THE PROBABLE COMMISSION OF, OR OF ATTEMPTS TO COMMIT,
ANY CRIMES.  /37/  THE SINGLE EXCEPTION RELATES TO THE ALLEGATION THAT
A BLACK PANTHER PARTY LEADER, DAVID HILLIARD, VIOLATED 18 U.S.C. 871
DURING THE COURSE OF A SPEECH IN NOVEMBER 1969.  BUT CALDWELL WAS
SUBPOENAED TWO MONTHS AFTER AN INDICTMENT WAS RETURNED AGAINST
HILLIARD, AND THAT CHARGE COULD NOT, SUBSEQUENT TO THE INDICTMENT, BE
INVESTIGATED BY A GRAND JURY.  SEE IN RE NATIONAL WINDOW GLASS WORKERS,
287 F. 219; UNITED STATES V. DARDI, 330 F.2D 316, 336.  /38/
FURTHERMORE, THE RECORD BEFORE US DOES NOT SHOW THAT CALDWELL PROBABLY
HAD AN INFORMATION ABOUT THE VIOLATION OF ANY OTHER FEDERAL CRIMINAL
LAWS, /39/ OR THAT ALTERNATIVE MEANS OF OBTAINING THE DESIRED
INFORMATION WERE PURSUED.  /40/ 

IN THE CALDWELL CASE, THE COURT OF APPEALS FURTHER FOUND THAT
CALDWELL'S CONFIDENTIAL RELATIONSHIP WITH THE LEADERS OF THE BLACK
PANTHER PARTY WOULD BE IMPAIRED IF HE APPEARED BEFORE THE GRAND JURY AT
ALL TO ANSWER QUESTIONS, EVEN THOUGH NOT PRIVILEGED.  CALDWELL V.
UNITED STATES, 434 F.2D, AT 1088; ON THE PARTICULAR FACTS BEFORE IT,
/41/  THE COURT CONCLUDED THAT THE VERY APPEARANCE BY CALDWELL BEFORE
THE GRAND JURY WOULD JEOPARDIZE HIS RELATIONSHIP WITH HIS SOURCES,
LEADING TO A SEVERANCE OF THE NEWS-GATHERING RELATIONSHIP AND
IMPAIRMENT OF THE FLOW OF NEWS TO THE PUBLIC:  /42/ 

     "APPELLANT ASSERTED IN AFFIDAVIT THAT THERE IS NOTHING TO
WHICH

  HE COULD TESTIFY (BEYOND THAT WHICH HE HAS ALREADY MADE PUBLIC

 AND FOR WHICH, THEREFORE, HIS APPEARANCE IS UNNECESSARY) THAT IS

  NOT PROTECTED BY THE DISTRICT COURT'S ORDER.  IF THIS IS TRUE--

  AND THE GOVERNMENT APPARENTLY HAS NOT BELIEVED IT NECESSARY TO

  DISPUTE IT-- APPELLANT'S RESPONSE TO THE SUBPOENA WOULD BE A

  BARREN PERFORMANCE-- ONE OF NO BENEFIT TO THE GRAND JURY. 

TO DESTROY

  APPELLANT'S CAPACITY AS NEWS GATHERER FOR SUCH A RETURN HARDLY
MAKES SENSE.  SINCE THE COST TO

  THE PUBLIC OF EXCUSING HIS ATTENDANCE IS SO SLIGHT, IT MAY BE
SAID THAT THERE IS HERE NO       PUBLIC INTEREST OF REAL SUBSTANCE IN
COMPETITION WITH THE FIRST AMENDMENT FREEDOMS THAT ARE

  JEOPARDIZED. 

"IF ANY COMPETING PUBLIC INTEREST IS EVER TO ARISE IN A CASE

  SUCH AS THIS (WHERE FIRST AMENDMENT LIBERTIES ARE THREATENED BY

  MERE APPEARANCE AT A GRAND JURY INVESTIGATION) IT WILL BE ON AN

  OCCASION IN WHICH THE WITNESS, ARMED WITH HIS PRIVILEGE, CAN

  STILL SERVE A USEFUL PURPOSE BEFORE THE GRAND JURY.  CONSIDERING

  THE SCOPE OF THE PRIVILEGE EMBODIED IN THE PROTECTIVE ORDER,

  THESE OCCASIONS WOULD SEEM TO BE UNUSUAL.  IT IS NOT ASKING TOO

  MUCH OF THE GOVERNMENT TO SHOW THAT SUCH AN OCCASION IS PRESENTED

  HERE."  ID., AT 1089. 

I THINK THIS RULING WAS ALSO CORRECT IN LIGHT OF THE PARTICULARIZED
CIRCUMSTANCES OF THE CALDWELL CASE.  OBVIOUSLY, ONLY IN VERY RARE
CIRCUMSTANCES WOULD A CONFIDENTIAL RELATIONSHIP BETWEEN A REPORTER AND
HIS SOURCE BE SO SENSITIVE THAT MERE APPEARANCE BEFORE THE GRAND JURY
BY THE NEWSMAN WOULD SUBSTANTIALLY IMPAIR HIS NEWSGATHERING FUNCTION. 
BUT IN THIS CASE, THE REPORTER MADE OUT A PRIMA FACIE CASE THAT THE
FLOW OF NEWS TO THE PUBLIC WOULD BE CURTAILED.  AND HE STATED, WITHOUT
CONTRADICTION, THAT THE ONLY NONCONFIDENTIAL MATERIAL ABOUT WHICH HE
COULD TESTIFY WAS ALREADY PRINTED IN HIS NEWSPAPER ARTICLES.  /43/
SINCE THE UNITED STATES HAS NOT ATTEMPTED TO REFUTE THIS ASSERTION, THE
APPEARANCE OF CALDWELL WOULD, ON THESE FACTS, INDEED BE A "BARREN
PERFORMANCE."  BUT THIS ASPECT OF THE CALDWELL JUDGMENT I WOULD CONFINE
TO ITS OWN FACTS.  AS THE COURT OF APPEALS APPROPRIATELY OBSERVED:
"(THE RULE OF THIS CASE IS A NARROW ONE.  . . . "  CALDWELL, SUPRA, AT
1090. 

ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS IN
NO. 70-57, UNITED STATES V. CALDWELL.  /44/  IN THE OTHER TWO CASES
BEFORE US, NO. 70-85, BRANZBURG V. HAYES AND MEIGS, AND NO. 70-94, IN
RE PAPPAS, I WOULD VACATE THE JUDGMENTS AND REMAND THE CASES FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE VIEWS I HAVE EXPRESSED IN
THIS OPINION. 

/1/  WE HAVE OFTEN DESCRIBED THE PROCESS OF INFORMING THE PUBLIC AS
THE CORE PURPOSE OF THE CONSTITUTIONAL GUARANTEE OF FREE SPEECH AND A
FREE PRESS.  SEE, E.G., STOMBERG V. CALIFORNIA, 283 U.S. 359, 369; DE
JONGE V. OREGON, 299 U.S. 353, 365; SMITH V. CALIFORNIA, 361 U.S. 147,
153. 

/2/  AS I SEE IT, A REPORTER'S RIGHT TO PROTECT HIS SOURCE IS
BOTTOMED ON THE CONSTITUTIONAL GUARANTEE OF A FULL FLOW OF INFORMATION
TO THE PUBLIC.  A NEWSMAN'S PERSONAL FIRST AMENDMENT RIGHTS OR THE
ASSOCIATIONAL RIGHTS OF THE NEWSMAN AND THE SOURCE ARE SUBSUMED UNDER
THAT BROAD SOCIETAL INTEREST PROTECTED BY THE FIRST AMENDMENT. 
OBVIOUSLY, WE ARE NOT HERE CONCERNED WITH THE PAROCHIAL PERSONAL
CONCERNS OF PARTICULAR NEWSMEN OR INFORMANTS. 

"THE NEWSMAN-INFORMER REALTIONSHIP IS DIFFERENT FROM . . . OTHER
RELATIONSHIPS WHOSE CONFIDENTIALITY IS PROTECTED BY STATUTE, SUCH AS
THE ATTORNEY-CLIENT AND PHYSICIAN-PATIENT RELATIONSHIPS.  IN THE CASE
OF OTHER STATUTORY PRIVILEGES, THE RIGHT OF NONDISCLOSURE IS GRANTED TO
THE PERSON MAKING THE COMMUNICATION IN ORDER THAT HE WILL BE ENCOURAGED
BY STRONG ASSURANCES OF CONFIDENTIALITY TO SEEK SUCH RELATIONSHIPS
WHICH CONTRIBUTE TO HIS PERSONAL WELL-BEING.  THE JUDGMENT IS MADE THAT
THE INTERESTS OF SOCIETY WILL BE SERVED WHEN INDIVIDUALS CONSULT
PHYSICIANS AND LAWYERS; THE PUBLIC INTEREST IS THUS ADVANCED BY
CREATING A ZONE OF PRIVACY THAT THE INDIVIDUAL CAN CONTROL.  HOWEVER,
IN THE CASE OF THE REPORTER-INFORMER RELATIONSHIP, SOCIETY'S INTEREST
IS NOT IN THE WELFARE OF THE INFORMANT PER SE, BUT RATHER IN CREATING
CONDITIONS IN WHICH INFORMATION POSSESSED BY NEWS SOURCES CAN REACH
PUBLIC ATTENTION."  NOTE, 80 YALE L.J. 317, 343 (1970) (FOOTNOTES
OMITTED) (HEREINAFTER YALE NOTE). 

/3/  SEE GENERALLY Z. CHAFEE, FREE SPEECH IN THE UNITED STATES
(1941); A. MEIKELJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT
(1948); T. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT
(1963). 

/4/  IN ZEMEL V. RUSK, 381 U.S. 1, WE HELD THAT THE SECRETARY OF
STATE'S DENIAL OF A PASSPORT FOR TRAVEL TO CUBA DID NOT VIOLATE A
CITIZEN'S FIRST AMENDMENT RIGHTS.  THE RULE WAS JUSTIFIED BY THE
"WEIGHTIEST CONSIDERATIONS OF NATIONAL SECURITY" AND WE CONCLUDED THAT
THE "RIGHT TO SPEAK AND PUBLISH DOES NOT CARRY WITH IT THE UNRESTRAINED
RIGHT TO GATHER INFORMATION."  ID., AT 16-17.  THE NECESSARY
IMPLICATION IS THAT SOME RIGHT TO GATHER INFORMATION DOES EXIST. 

/5/  IN CALDWELL V. UNITED STATES, 434 F.2D 1081, THE GOVERNMENT
CLAIMED THAT CALDWELL DID NOT HAVE TO MAINTAIN A CONFIDENTIAL
RELATIONSHIP WITH MEMBERS OF THE BLACK PANTHER PARTY AND PROVIDE
INDEPENDENT REPORTING OF THEIR ACTIVITIES, SINCE THE PARTY AND ITS
LEADERS COULD ISSUE STATEMENTS ON THEIR OWN.  BUT, AS THE COURT OF
APPEALS FOR THE NINTH CIRCUIT CORRECTLY OBSERVED: 

"(IT IS NOT ENOUGH THAT BLACK PANTHER PRESS RELEASES AND PUBLIC
ADDRESSES BY PANTHER LEADERS MAY CONTINUE UNABATED IN THE WAKE OF
SUBPOENAS SUCH AS THE ONE HERE IN QUESTION.  IT IS NOT ENOUGH THAT THE
PUBLIC'S KNOWLEDGE OF GROUPS SUCH AS THE BLACK PANTHERS SHOULD BE
CONFINED TO THEIR DELIBERATE PUBLIC PRONOUNCEMENTS OR DISTANT NEWS
ACCOUNTS OF THEIR OCCASIONAL DRAMATIC FORAYS INTO THE PUBLIC VIEW. 

"THE NEED FOR AN UNTRAMMELED PRESS TAKES ON SPECIAL URGENCY IN TIMES
OF WIDESPREAD PROTEST AND DISSENT.  IN SUCH TIMES THE FIRST AMENDMENT
PROTECTIONS EXIST TO MAINTAIN COMMUNICATION WITH DISSENTING GROUPS AND
TO PROVIDE THE PUBLIC WITH A WIDE RANGE OF INFORMATION ABOUT THE NATURE
OF PROTEST AND HETERODOXY."  CITING ASSOCIATED PRESS V. UNITED STATES,
326 U.S. 1, 20; THORNHILL V. ALABAMA, 310 U.S. 88, 102.  ID., AT 1084
1085. 

/6/  AS WE OBSERVED IN TALLEY V. CALIFORNIA, 362 U.S. 60, "ANONYMOUS
PAMPHLETS, LEAFLETS, BROCHURES AND EVEN BOOKS HAVE PLAYED AN IMPORTANT
ROLE IN THE PROGRESS OF MANKIND.  . . . BEFORE THE REVOLUTIONARY WAR
COLONIAL PATRIOTS FREQUENTLY HAD TO CONCEAL THEIR AUTHORSHIP OR
DISTRIBUTION OF LITERATURE THAT EASILY COULD HAVE BROUGHT DOWN ON THEM
PROSECUTIONS BY ENGLISH-CONTROLLED COURTS.  . . . EVEN THE FEDERALIST
PAPERS, WRITTEN IN FAVOR OF THE ADOPTION OF OUR CONSTITUTION, WERE
PUBLISHED UNDER FICTITIOUS NAMES.  IT IS PLAIN THAT ANONYMITY HAS
SOMETIMES BEEN ASSUMED FOR THE MOST CONSTRUCTIVE PURPOSES."  ID., AT 64
65.  AND IN LAMONT V. POSTMASTER GENERAL, 381 U.S. 301, WE RECOGNIZED
THE IMPORTANCE TO FIRST AMENDMENT VALUES OF THE RIGHT TO RECEIVE
INFORMATION ANONYMOUSLY. 

/7/  APPLICATION OF CALDWELL, 311 F.SUPP.  358, 361. 

/8/ SEE, E.G., F. CHALMERS, A GENTLEMAN OF THE PRESS:  THE BIOGRAPHY
OF COLONEL JOHN BAYNE MACLEAN 74-75 (1969); H. KLURFELD, BEHIND THE
LINES:  THE WORLD OF DREW PEARSON 50, 52-55 (1968); A. KROCK, MEMOIRS:
SIXTY YEARS ON THE FIRING LINE 181, 184-185 (1968); E. LARSEN, FIRST
WITH THE TRUTH 22-23 (1968); R. OTTLEY, THE LONELY WARRIOR-- THE LIFE
AND TIMES OF ROBERT S. ABBOTT 143-145 (1955); C. SULZBERGER, A LONG ROW
OF CANDLES; MEMOIRS AND DIARIES 241 (1969). 

AS WALTER CRONKITE, A NETWORK TELEVISION REPORTER, SAID IN AN
AFFIDAVIT IN CALDWELL:  "IN DOING MY WORK, I (AND THOSE WHO ASSIST ME)
DEPEND CONSTANTLY ON INFORMATION, IDEAS, LEADS AND OPINIONS RECEIVED IN
CONFIDENCE.  SUCH MATERIAL IS ESSENTIAL IN DIGGING OUT NEWSWORTHY FACTS
AND, EQUALLY IMPORTANT, IN ASSESSING THE IMPORTANCE AND ANALYZING THE
SIGNIFICANCE OF PUBLIC EVENTS."  APP. 52. 

/9/  SEE GUEST & STANZLER, THE CONSTITUTIONAL ARGUMENT FOR NEWSMEN
CONCEALING THEIR SOURCES, 64 NW.U.L.REV.  18 (1969); V. BLASI, PRESS
SUBPOENAS:  AN EMPIRICAL AND LEGAL ANALYSIS, STUDY REPORT OF THE
REPORTERS' COMMITTEE ON FREEDOM OF THE PRESS 20-29 (HEREINAFTER
BLASI). 

/10/  THE AMERICAN NEWSPAPER GUILD HAS ADOPTED THE FOLLOWING RULE AS
PART OF THE NEWSMAN'S CODE OF ETHICS:  "(NEWSPAPERMEN SHALL REFUSE TO
REVEAL CONFIDENCES OR DISCLOSE SOURCES OF CONFIDENTIAL INFORMATION IN
COURT OR BEFORE OTHER JUDICIAL OR INVESTIGATING BODIES."  G. BIRD & F.
MERWIN, THE PRESS AND SOCIETY 592 (1971). 

/11/  OBVIOUSLY, IF A NEWSMAN DOES NOT HONOR A CONFIDENCE HE WILL
HAVE DIFFICULTY ESTABLISHING OTHER CONFIDENTIAL RELATIONSHIPS NECESSARY
FOR OBTAINING INFORMATION IN THE FUTURE.  SEE SIEBERT & RYNIKER, PRESS
WINNING FIGHT TO GUARD SOURCES, EDITOR & PUBLISHER, SEPT. 1, 1934, PP.
9, 36-37. 

/12/  THE COURT FOUND THAT "COMPELLED DISCLOSURE OF INFORMATION
RECEIVED BY A JOURNALIST WITHIN THE SCOPE OF . . . CONFIDENTIAL
RELATIONSHIPS JEOPARDIZES THOSE RELATIONSHIPS AND THEREBY IMPAIRS THE
JOURNALIST'S ABILITY TO GATHER, ANALYZE AND PUBLISH THE NEWS." 
APPLICATION OF CALDWELL, 311 F.SUPP.,AT 361. 

/13/  SEE N. 8, SUPRA. 

/14/  RECENT COMMENTARY IS NEARLY UNANIMOUS IN URGING EITHER AN
ABSOLUTE OR QUALIFIED NEWSMAN'S PRIVILEGE.  SEE, E.G., GOLDSTEIN,
NEWSMEN AND THEIR CONFIDENTIAL SOURCES, NEW REPUBLIC, MAR. 21, 1970,
PP. 13-14; YALE NOTE, SUPRA, N. 2; COMMENT, 46 N.Y.U.L.REV.  617
(1971); NEWSON, THE NEWSMEN'S PRIVILEGE AGAINST DISCLOSURE OF
CONFIDENTIAL SOURCES AND INFORMATION, 24 VAND.L.REV.  667 (1971); NOTE,
THE RIGHT OF THE PRESS TO GATHER INFORMATION, 71 COL.L.REV.  838
(1971); COMMENT, 4 U.MICH.J.L.REF.  85 (1970); COMMENT, 6
HARV.CIV.RIGHTS-CIV.LIB.L.REV.  119 (1970); COMMENT, THE NEWSMAN'S
PRIVILEGE:  GOVERNMENT INVESTIGATIONS, CRIMINAL PROSECUTIONS AND
PRIVATE LITIGATION, 58 CALIF.L.REV.  1198 (1970).  BUT SEE THE COURT'S
OPINION, ANTE, AT 690 N. 29.  AND SEE GENERALLY ARTICLES COLLECTED IN
YALE NOTE, SUPRA, N. 2. 

RECENT DECISIONS ARE IN CONFLICT BOTH AS TO THE IMPORTANCE OF THE
DETERRENT EFFECTS AND, A FORTIORI, AS TO THE EXISTENCE OF A
CONSTITUTIONAL RIGHT TO A CONFIDENTIAL REPORTER-SOURCE RELATIONSHIP. 
SEE THE COURT'S OPINION, ANTE, AT 686, AND CASES COLLECTED IN YALE
NOTE, AT 318 NN. 6-7. 

/15/  SEE BLASI 6-71; GUEST & STANZLER, SUPRA, N. 9, AT 43-50. 

/16/  DEPARTMENT OF JUSTICE MEMO.  NO. 692 (SEPT. 2, 1970). 

/17/  ALTHOUGH, AS THE COURT POINTS OUT, WE HAVE HELD THAT THE PRESS
IS NOT FREE FROM THE REQUIREMENTS OF THE NATIONAL LABOR RELATIONS ACT,
THE FAIR LABOR STANDARDS ACT, THE ANTITRUST LAWS, OR NONDISCRIMINATORY
TAXATION, ANTE, AT 683, THESE DECISIONS WERE CONCERNED "ONLY WITH
RESTRAINTS ON CERTAIN BUSINESS OR COMMERCIAL PRACTICES" OF THE PRESS. 
CITIZEN PUBLISHING CO. V. UNITED STATES, 394 U.S. 131, 139.  AND DUE
WEIGHT WAS GIVEN TO FIRST AMENDMENT INTERESTS.  FOR EXAMPLE, "THE FIRST
AMENDMENT, FAR FROM PROVIDING AN ARGUMENT AGAINST APPLICATION OF THE
SHERMAN ACT . . . PROVIDES POWERFUL REASONS TO THE CONTRARY." 
ASSOCIATED PRESS V. UNITED STATES, 326 U.S.,AT 20. 

/18/  THE FACT THAT SOME INFORMANTS WILL NOT BE DETERRED FROM GIVING
INFORMATION BY THE PROSPECT OF THE UNBRIDLED EXERCISE OF THE SUBPOENA
POWER ONLY MEANS THAT THERE WILL NOT ALWAYS BE A CONFLICT BETWEEN THE
GRAND JURY'S INQUIRY AND THE PROTECTION OF FIRST AMENDMENT ACTIVITIES. 
BUT EVEN IF THE PERCENTAGE OF SUCH INFORMANTS IS RELATIVELY LARGE
COMPARED TO THE TOTAL "UNIVERSE" OF POTENTIAL INFORMANTS, THERE WILL
REMAIN A LARGE NUMBER OF PEOPLE IN "ABSOLUTE" TERMS WHO WILL BE
DETERRED, AND THE FLOW OF NEWS THROUGH MASS CIRCULATION NEWSPAPERS AND
ELECTRONIC MEDIA WILL INEVITABLY BE IMPAIRED. 

/19/  EMPIRICAL STUDIES, AFTER ALL, CAN ONLY PROVIDE FACTS.  IT IS
THE DUTY OF COURTS TO GIVE LEGAL SIGNIFICANCE TO FACTS; AND IT IS THE
SPECIAL DUTY OF THIS COURT TO UNDERSTAND THE CONSTITUTIONAL
SIGNIFICANCE OF FACTS.  WE MUST OFTEN PROCEED IN A STATE OF LESS THAN
PERFECT KNOWLEDGE, EITHER BECAUSE THE FACTS ARE MURKY OR THE
METHODOLOGY USED IN OBTAINING THE FACTS IS OPEN TO QUESTION.  IT IS
THEN THAT WE MUST LOOK TO THE CONSTITUTION FOR THE VALUES THAT INFORM
OUR PRESUMPTIONS.  AND THE IMPORTANCE TO OUR SOCIETY OF THE FULL FLOW
OF INFORMATION TO THE PUBLIC HAS BUTTRESSED THIS COURT'S HISTORIC
PRESUMPTION IN FAVOR OF FIRST AMENDMENT VALUES. 

/20/  SEE, E.G., THE UNCONTRADICTED EVIDENCE PRESENTED IN AFFIDAVITS
FROM NEWSMEN IN CALDWELL, APPENDIX TO NO. 70-57, PP. 22-61 (STATEMENTS
FROM GERALD FRASER, THOMAS JOHNSON, JOHN KIFNER, TIMOTHY KNIGHT,
NICHOLAS PROFFITT, ANTHONY RIPLEY, WALLACE TURNER, GILBERT NOBLE,
ANTHONY LUKAS, MARTIN ARNOLD, DAVID BURNHAM, JON LOWELL, FRANK MORGAN,
MIN YEE, WALTER CRONKITE, ERIC SEVAREID, MIKE WALLACE, DAN RATHER,
MARVIN KALB). 

/21/  SEE BLAU V. UNITED STATES, 340 U.S. 159; QUINN V. UNITED
STATES, 349 U.S. 155; CURCIO V. UNITED STATES, 354 U.S. 118; MALLOY V.
HOGAN, 378 U.S. 1. 

/22/  SEE SIVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385. 

/23/  SEE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF JUDICIAL
CONFERENCE OF THE UNITED STATES, REVISED DRAFT OF PROPOSED RULES OF
EVIDENCE FOR THE UNITED STATES COURTS AND MAGISTRATES (1971); 8
J.WIGMORE, EVIDENCE 2290-2391 (MCNAUGHTON REV. 1961). 

/24/  ALTHOUGH THERE IS A LONGSTANDING PRESUMPTION AGAINST CREATION
OF COMMON-LAW TESTIMONIAL PRIVILEGES, UNITED STATES V. BRYAN, 339 U.S.
323, THESE PRIVILEGES ARE GROUNDED IN AN "INDIVIDUAL INTEREST WHICH HAS
BEEN FOUND . . . TO OUTWEIGH THE PUBLIC INTEREST IN THE SEARCH FOR
TRUTH" RATHER THAN IN THE BROAD PUBLIC CONCERNS THAT INFORM THE FIRST
AMENDMENT.  ID., AT 331. 

/25/  THE PROTECTION OF INFORMATION FROM COMPELLED DISCLOSURE FOR
BROAD PURPOSES OF PUBLIC POLICY HAS BEEN RECOGNIZED IN DECISIONS
INVOLVING POLICE INFORMERS, SEE ROVIARO V. UNITED STATES, 353 U.S. 53,
UNITED STATES V. VENTRESCA, 380 U.S. 102, 108, AGUILAR V. TEXAS, 378
U.S. 108, 114, MCCRAY V. ILLINOIS, 386 U.S. 300, AND MILITARY AND STATE
SECRETS, UNITED STATES V. REYNOLDS, 345 U.S. 1.     /26/  AS WE SAID IN
WATKINS V; UNITED STATES, 354 U.S. 178, 

"(WHEN FIRST AMENDMENT RIGHTS ARE THREATENED, THE DELEGATION OF
POWER TO THE (LEGISLATIVE) COMMITTEE MUST BE CLEARLY REVEALED IN ITS
CHARTER."  "IT IS THE RESPONSIBILITY OF THE CONGRESS . . . TO INSURE
THAT COMPULSORY PROCESS IS USED ONLY IN FURTHERANCE OF A LEGISLATIVE
PURPOSE.  THAT REQUIRES THAT THE INSTRUCTIONS TO AN INVESTIGATING
COMMITTEE SPELL OUT THE GROUP'S JURISDICTION AND PURPOSE WITH
SUFFICIENT PARTICULARITY.  . . . THE MORE VAGUE THE COMMITTEE'S
CHARTER, IS, THE GREATER BECOMES THE POSSIBILITY THAT THE COMMITTEE'S
SPECIFIC ACTIONS ARE NOT IN CONFORMITY WITH THE WILL OF THE PARENT
HOUSE OF CONGRESS."  ID., AT 198, 201. 

/27/  WE NOTED IN SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234: 

"THE STATE SUPREME COURT ITSELF RECOGNIZED THAT THERE WAS A WEAKNESS
IN ITS CONCLUSION THAT THE MENACE OF FORCIBLE OVERTHROW OF THE
GOVERNMENT JUSTIFIED SACRIFICING CONSTITUTIONAL RIGHTS.  THERE WAS A
MISSING LINK IN THE CHAIN OF REASONING.  THE SYLLOGISM WAS NOT
COMPLETE.  THERE WAS NOTHING TO CONNECT THE QUESTIONING OF PETITIONER
WITH THIS FUNDAMENTAL INTEREST OF THE STATE."  ID., AT 251. 

/28/  SEE GENERALLY NOTE, LESS DRASTIC MEANS AND THE FIRST
AMENDMENT, 78 YALE L.J. 464 (1969). 

/29/  SEE WATKINS, SUPRA, AT 208-209.  SEE GENERALLY BAGGETT V.
BULLITT, 377 U.S. 360, 372; SPEISER V. RANDALL, 357 U.S. 513, 526;
ASHTON V. KENTUCKY, 384 U.S. 195, 200-201; DOMBROWSKI V. PFISTER, 380
U.S. 479, 486; SMITH V. CALIFORNIA, 361 U.S.,AT 150-152; WINTERS V. NEW
YORK, 333 U.S. 507; STROMBERG V. CALIFORNIA, 283 U.S.,AT 369.  SEE ALSO
NOTE, THE CHILLING EFFECT IN CONSTITUTIONAL LAW, 69 COL.L.REV.  808
(1969). 

/30/  SEE GENERALLY ZWICKLER V. KOOTA, 389 U.S. 241, 249-250, AND
CASES CITED THEREIN; COATES V. CINCINNATI, 402 U.S. 611, 616; CANTWELL
V. CONNECTICUT, 310 U.S. 296, 307; DE JONGE V. OREGON, 299 U.S.,AT 364
365; SCHNEIDER V. STATE, 308 U.S. 147, 164; COX V. LOUISIANA, 379 U.S.
559, 562-564.  CF. NAACP V. BUTTON, 371 U.S. 415, 438.  SEE ALSO NOTE,
THE FIRST AMENDMENT OVERBREADTH DOCTRINE, 83 HARV.L.REV.  844 (1970). 

/31/  IN ADDITION, WITNESSES CUSTOMARILY ARE NOT ALLOWED TO OBJECT
TO QUESTIONS ON THE GROUNDS OF MATERIALITY OR RELEVANCE, SINCE THE
SCOPE OF THE GRAND JURY INQUIRY IS DEEMED TO BE OF NO CONCERN TO THE
WITNESS.  CARTER V. UNITED STATES, 417 F.2D 384, CERT. DENIED, 399 U.S.
935.  NOR IS COUNSEL PERMITTED TO BE PRESENT TO AID A WITNESS.  SEE IN
RE GROBAN, 352 U.S. 330. 

SEE GENERALLY YOUNGER, THE GRAND JURY UNDER ATTACK, PT. 3, 46
J.CRIM.L.C.&P.S. 214 (1955); RECENT CASES, 104 U.PA.L.REV.  429 (1955);
WATTS, GRAND JURY:  SLEEPING WATCHDOG OR EXPENSIVE ANTIQUE, 37
N.C.L.REV.  290 (1959); WHYTE, IS THE GRAND JURY NECESSARY?, 45
VA.L.REV.  461 (1959); NOTE, 2 COL.J.LAW & SOC.PROB.  47, 58 (1966);
ANTELL, THE MODERN GRAND JURY:  BENIGHTED SUPERGOVERNMENT, 51 A.B.A.J.
153 (1965); ORFIELD, THE FEDERAL GRAND JURY, 22 F.R.D. 343. 

/32/  THE STANDARD OF PROOF EMPLOYED BY MOST GRAND JURIES, FEDERAL
AND STATE, IS SIMPLY "PROBABLE CAUSE" TO BELIEVE THAT THE ACCUSED HAS
COMMITTED A CRIME.  SEE NOTE, 1963 WASH.U.L.Q. 102; L. HALL ET AL.,
MODERN CRIMINAL PROCEDURE 793-794 (1969).  GENERALLY SPEAKING, IT IS
EXTREMELY DIFFICULT TO CHALLENGE INDICTMENTS ON THE GROUND THAT THEY
ARE NOT SUPPORTED BY ADEQUATE OR COMPETENT EVIDENCE.  CF. COSTELLO V.
UNITED STATES, 350 U.S. 359; BECK V. WASHINGTON, 369 U.S. 541. 

/33/  CF. GARLAND V. TORRE, 259 F.2D 545.  THE COURT OF APPEALS FOR
THE SECOND CIRCUIT DECLINED TO PROVIDE A TESTIMONIAL PRIVILEGE TO A
NEWSMAN CALLED TO TESTIFY AT A CIVIL TRIAL.  BUT THE COURT RECOGNIZED A
NEWSMAN'S FIRST AMENDMENT RIGHT TO A CONFIDENTIAL RELATIONSHIP WITH HIS
SOURCE AND CONCLUDED:  "IT IS TO BE NOTED THAT WE ARE NOT DEALING HERE
WITH THE USE OF THE JUDICIAL PROCESS TO FORCE A WHOLESALE DISCLOSURE OF
A NEWSPAPER'S CONFIDENTIAL SOURCES OF NEWS, NOR WITH A CASE WHERE THE
IDENTITY OF THE NEWS SOURCE IS OF DOUBTFUL RELEVANCE OR MATERIALITY.  .
. . THE QUESTION ASKED . . . WENT TO THE HEART OF THE PLAINTIFF'S
CLAIM."  ID., AT 549-550. 

/34/  IF THIS REQUIREMENT IS NOT MET, THEN THE GOVERNMENT WILL
BASICALLY BE ALLOWED TO UNDERTAKE A "FISHING EXPEDITION" AT THE EXPENSE
OF THE PRESS.  SUCH GENERAL, EXPLORATORY INVESTIGATIONS WILL BE MOST
DAMAGING TO CONFIDENTIAL NEWS-GATHERING RELATIONSHIPS, SINCE THEY WILL
CREATE GREAT UNCERTAINTY IN BOTH REPORTERS AND THEIR SOURCES.  THE
COURT SANCTIONS SUCH EXPLORATIONS, BY REFUSING TO APPLY A MEANINGFUL
"PROBABLE CAUSE" REQUIREMENT.  SEE ANTE, AT 701-702.  AS THE COURT
STATES, A GRAND JURY INVESTIGATION "MAY BE TRIGGERED BY TIPS, RUMORS,
EVIDENCE PROFFERED BY THE PROSECUTOR, OR THE PERSONAL KNOWLEDGE OF THE
GRAND JURORS."  ANTE, AT 701.  IT THEREBY INVITES GOVERNMENT TO TRY TO
ANNEX THE PRESS AS AN INVESTIGATIVE ARM, SINCE ANY TIME GOVERNMENT
WANTS TO PROBE THE RELATIONSHIPS BETWEEN THE NEWSMAN AND HIS SOURCE, IT
CAN, ON VIRTUALLY ANY PRETEXT, CONVENE A GRAND JURY AND COMPEL THE
JOURNALIST TO TESTIFY. 

THE COURT FAILS TO RECOGNIZE THAT UNDER THE GUISE OF "INVESTIGATING
CRIME" VINDICTIVE PRESECUTORS CAN, USING THE BROAD POWERS OF THE GRAND
JURY WHICH ARE, IN EFFECT, IMMUNE FROM JUDICIAL SUPERVISION, EXPLORE
THE NEWSMAN'S SOURCES AT WILL, WITH NO SERIOUS LAW ENFORCEMENT
PURPOSE.  THE SECRECY OF GRAND JURY PROCEEDINGS AFFORDS LITTLE
CONSOLATION TO A NEWS SOURCE; THE PROSECUTOR OBVIOUSLY WILL, IN MOST
CASES, HAVE KNOWLEDGE OF TESTIMONY GIVEN BY GRAND JURY WITNESSES. 

/35/  WE NEED NOT, THEREFORE, REACH THE QUESTION OF WHETHER
GOVERNMENT'S INTEREST IN THESE CASES IS "OVERRIDING AND COMPELLING."  I
DO NOT, HOWEVER, BELIEVE, AS THE COURT DOES, THAT ALL GRAND JURY
INVESTIGATIONS AUTOMATICALLY WOULD OVERRIDE THE NEWSMAN'S TESTIMONIAL
PRIVILEGE. 

/36/ THE DISCLAIMERS IN MR. JUSTICE POWELL'S CONCURRING OPINION
LEAVE ROOM FOR THE HOPE THAT IN SOME FUTURE CASE THE COURT MAY TAKE A
LESS ABSOLUTE POSITION IN THIS AREA. 

/37/  SEE BLASI 61 ET SEQ. 

/38/  AFTER CALDWELL WAS FIRST SUBPOENAED TO APPEAR BEFORE THE GRAND
JURY, THE GOVERNMENT DID UNDERTAKE, BY AFFIDAVITS, TO "SET FORTH FACTS
INDICATING THE GENERAL NATURE OF THE GRAND JURY'S INVESTIGATION (AND)
WITNESS EARL CALDWELL'S POSSESSION OF INFORMATION RELEVANT TO THIS
GENERAL INQUIRY."  IN DETAILING THE BASIS FOR THE BELIEF THAT A CRIME
HAD PROBABLY BEEN COMMITTED, THE GOVERNMENT SIMPLY ASSERTED THAT
CERTAIN ACTIONS HAD PREVIOUSLY BEEN TAKEN BY OTHER GRAND JURIES, AND BY
GOVERNMENT COUNSEL, WITH RESPECT TO CERTAIN MEMBERS OF THE BLACK PANTER
PARTY (I.E., IMMUNITY GRANTS FOR CERTAIN BLACK PANTHERS WERE SOUGHT;
THE GOVERNMENT MOVED TO COMPEL PARTY MEMBERS TO TESTIFY BEFORE GRAND
JURIES; AND CONTEMPT CITATIONS WERE SOUGHT WHEN PARTY MEMBERS REFUSED
TO TESTIFY).  NO FACTS WERE ASSERTED SUGGESTING THE ACTUAL COMMISSION
OF CRIME.  THE EXCEPTION, AS NOTED, INVOLVED DAVID HILLIARD'S SPEECH
AND ITS REPUBLICATION IN THE PARTY NEWSPAPER, THE BLACK PANTHER, FOR
WHICH HILLIARD HAD BEEN INDICTED BEFORE CALDWELL WAS SUBPOENAED. 

/39/  IN ITS AFFIDAVITS, THE GOVERNMENT PLACED PRIMARY RELIANCE ON
CERTAIN ARTICLES PUBLISHED BY CALDWELL IN THE NEW YORK TIMES DURING
1969 (ON JUNE 15, JULY 20, JULY 22, JULY 27, AND DEC. 14).  ON DEC. 14,
1969, CALDWELL WROTE: 

"'WE ARE SPECIAL,' MR. HILLIARD SAID RECENTLY 'WE ADVOCATE THE VERY
DIRECT OVERTHROW OF THE GOVERNMENT BY WAY OF FORCE AND VIOLENCE.  BY
PICKING UP GUNS AND MOVING AGAINST IT BECAUSE WE RECOGNIZE IT AS BEING
OPPRESSIVE AND IN RECOGNIZING THAT WE KNOW THAT THE ONLY SOLUTION TO IT
IS ARMED STRUGGLE.' 

"IN THEIR ROLE AS THE VANGUARD IN A REVOLUTIONARY STRUGGLE, THE
PANTHERS HAVE PICKED UP GUNS. 

"LAST WEEK TWO OF THEIR LEADERS WERE KILLED DURING THE POLICE RAID
ON ONE OF THEIR OFFICES IN CHICAGO.  AND IN LOS ANGELES A FEW DAYS
EARLIER, THREE OFFICERS AND THREE PANTHERS WERE WOUNDED IN A SIMILAR
SHOOTING INCIDENT.  IN THESE AND IN SOME OTHER RAIDS, THE POLICE HAVE
FOUND CACHES OF WEAPONS, INCLUDING HIGH-POWERED RIFLES."  APP. IN NO.
70-57, P. 13. 

IN MY VIEW, THIS SHOULD BE READ AS INDICATING THAT CALDWELL HAD
INTERVIEWED PANTHER LEADERS.  IT DOES NOT INDICATE THAT HE PROBABLY HAD
KNOWLEDGE OF THE CRIMES BEING INVESTIGATED BY THE GOVERNMENT.  AND, TO
REPEAT, TO THE EXTENT IT DOES RELATE TO HILLIARD'S THREAT, AN
INDICTMENT HAD ALREADY BEEN BROUGHT IN THAT MATTER.  THE OTHER ARTICLES
MERELY DEMONSTRATE THAT BLACK PANTHER PARTY LEADERS HAD TOLD CALDWELL
THEIR IDEOLOGICAL BELIEFS-- BELIEFS THAT WERE READILY AVAILABLE TO THE
GOVERNMENT THROUGH OTHER SOURCES, LIKE THE PARTY NEWSPAPER. 

/40/  THE GOVERNMENT DID NOT ATTEMPT TO SHOW THAT MEANS LESS
IMPINGING UPON FIRST AMENDMENT INTERESTS HAD BEEN PURSUED. 

/41/  IN AN AFFIDAVIT FILED WITH THE DISTRICT COURT, CALDWELL
STATED: 

"I BEGAN COVERING AND WRITING ARTICLES ABOUT THE BLACK PANTHERS
ALMOST FROM THE TIME OF THEIR INCEPTION, AND I MYSELF FOUND THAT IN
THOSE FIRST MONTHS . . . THEY WERE VERY BRIEF AND RELUCTANT TO DISCUSS
ANY SUBSTANTIVE MATTER WITH ME.  HOWEVER, AS THEY REALIZED I COULD BE
TRUSTED AND THAT MY SOLE PURPOSE WAS TO COLLECT MY INFORMATION AND
PRESENT IT OBJECTIVELY IN THE NEWSPAPER AND THAT I HAD NO OTHER MOTIVE,
I FOUND THAT NOT ONLY WERE THE PARTY LEADERS AVAILABLE FOR IN-DEPTH
INTERVIEWS BUT ALSO THE RANK AND FILE MEMBERS WERE COOPERATIVE IN
AIDING ME IN THE NEWSPAPER STORIES THAT I WANTED TO DO.  DURING THE
TIME THAT I HAVE BEEN COVERING THE PARTY, I HAVE NOTICED OTHER
NEWSPAPERMEN REPRESENTING LEGITIMATE ORGANIZATIONS IN THE NEWS MEDIA
BEING TURNED AWAY BECAUSE THEY WERE NOT KNOWN AND TRUSTED BY THE PARTY
LEADERSHIP. 

"AS A RESULT OF THE RELATIONSHIP THAT I HAVE DEVELOPED, I HAVE BEEN
ABLE TO WRITE LENGTHY STORIES ABOUT THE PANTHERS THAT HAVE APPEARED IN
THE NEW YORK TIMES AND HAVE BEEN OF SUCH A NATURE THAT OTHER REPORTERS
WHO HAVE NOT KNOWN THE PANTHERS HAVE NOT BEEN ABLE TO WRITE.  MANY OF
THESE STORIES HAVE APPEARED IN UP TO 50 OR 60 OTHER NEWSPAPERS AROUND
THE COUNTRY. 

"THE BLACK PANTHER PARTY'S METHOD OF OPERATION WITH REGARD TO
MEMBERS OF THE PRESS IS SIGNIFICANTLY DIFFERENT FROM THAT OF OTHER
ORGANIZATIONS.  FOR INSTANCE, PRESS CREDENTIALS ARE NOT RECOGNIZED AS
BEING OF ANY SIGNIFICANCE.  IN ADDITION, INTERVIEWS ARE NOT NORMALLY
DESIGNATED AS BEING 'BACKGROUNDERS' OR 'OFF THE RECORD' OR 'FOR
PUBLICATION' OR 'ON THE RECORD.'  BECAUSE NO SUBSTANTIVE INTERVIEWS ARE
GIVEN UNTIL A RELATIONSHIP OF TRUST AND CONFIDENCE IS DEVELOPED BETWEEN
THE BLACK PANTHER PARTY MEMBERS AND A REPORTER, STATEMENTS ARE RARELY
MADE TO SUCH REPORTERS ON AN EXPRESSED 'ON' OR 'OFF' THE RECORD BASIS. 
INSTEAD, AN UNDERSTANDING IS DEVELOPED OVER A PERIOD OF TIME BETWEEN
THE BLACK PANTHER PARTY MEMBERS AND THE REPORTER AS TO MATTERS WHICH
THE BLACK PANTHER PARTY WISHES TO DISCLOSE FOR PUBLICATIONS AND THOSE
MATTERS WHICH ARE GIVEN IN CONFIDENCE.  . . . INDEED, IF I AM FORCED TO
APPEAR IN SECRET GRAND JURY PROCEEDINGS, MY APPEARANCE ALONE WOULD BE
INTERPRETED BY THE BLACK PANTHERS AND OTHER DISSIDENT GROUPS AS A
POSSIBLE DISCLOSURE OF CONFIDENCES AND TRUSTS AND WOULD SIMILARLY
DESTROY MY EFFECTIVENESS AS A NEWPAPERMAN." 

THE GOVERNMENT DID NOT CONTRADICT THIS AFFIDAVIT. 

/42/  "MILITANT GROUPS MIGHT VERY UNDERSTANDABLY FEAR THAT, UNDER
THE PRESSURE OF EXAMINATION BEFORE A GRAND JURY, THE WITNESS MAY FAIL
TO PROTECT THEIR CONFIDENCES.  . . . THE GOVERNMENT CHARACTERIZES THIS
ANTICIPATED LOSS OF COMMUNICATION AS BLACK PANTHER REPRISAL.  . . . BUT
IT IS NOT AN EXTORTIONATE THREAT WE FACE.  IT IS HUMAN REACTION AS
REASONABLE TO EXPECT AS THAT A CLIENT WILL LEAVE HIS LAWYER WHEN HIS
CONFIDENCE IS SHAKEN.  . . . AS THE GOVERNMENT POINTS OUT, LOSS OF SUCH
A SENSITIVE NEWS SOURCE CAN ALSO RESULT FROM ITS REACTION TO INDISCREET
OR UNFAVORABLE REPORTING OR FROM A REPORTER'S ASSOCIATION WITH
GOVERNMENT AGENTS OR PERSONS DISAPPROVED OF BY THE NEWS SOURCE.  LOSS
IN SUCH A CASE, HOWEVER, RESULTS FROM AN EXERCISE OF THE CHOICE AND
PREROGATIVE OF A FREE PRESS.  IT IS NOT THE RESULT OF GOVERNMENT
COMPULSION."  CALDWELL V. UNITED STATES, 434 F.2D, AT 1088. 

/43/  CALDWELL STATED IN HIS AFFIDAVIT FILED WITH THE DISTRICT
COURT, SEE N. 40, SUPRA: 

"IT WOULD BE VIRTUALLY IMPOSSIBLE FOR ME TO RECALL WHETHER ANY
PARTICULAR MATTER DISCLOSED BY ME BY MEMBERS OF THE BLACK PANTHER PARTY
SINCE JANUARY 1, 1969, WAS BASED ON AN UNDERSTANDING THAT IT WOULD OR
WOULD NOT BE CONFIDENTIAL.  GENERALLY, THOSE MATTERS WHICH WERE MADE ON
A NONCONFIDENTIAL OR 'FOR PUBLICATION' BASIS HAVE BEEN PUBLISHED IN
ARTICLES I HAVE WRITTEN IN THE NEW YORK TIMES; CONVERSELY, ANY MATTERS
WHICH I HAVE NOT THUS FAR DISCLOSED IN PUBLISHED ARTICLES WOULD HAVE
BEEN GIVEN TO ME BASED ON THE UNDERSTANDING THAT THEY WERE CONFIDENTIAL
AND WOULD NOT BE PUBLISHED." 

/44/  THE DISTRICT COURT RESERVED JURISDICTION TO MODIFY ITS ORDER
ON A SHOWING OF A GOVERNMENTAL INTEREST WHICH CANNOT BE SERVED BY MEANS
OTHER THAN CALDWELL'S GRAND JURY TESTIMONY.  THE GOVERNMENT WOULD THUS
HAVE FURTHER OPPORTUNITY IN THAT COURT TO MEET THE BURDEN THAT, I
THINK, PROTECTION OF FIRST AMENDMENT RIGHTS REQUIRES. 

EDGAR A. ZINGMAN ARGUED THE CAUSE FOR PETITIONER IN NO. 70-85.  WITH
HIM ON THE BRIEFS WAS ROBERT C. EWALD.  E. BARRETT PRETTYMAN, JR.,
ARGUED THE CAUSE FOR PETITIONER IN NO. 70-94.  WITH HIM ON THE BRIEFS
WAS WILLIAM H. CAREY.  SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR
THE UNITED STATES IN NO. 70-57.  WITH HIM ON THE BRIEFS WERE ASSISTANT
ATTORNEY GENERAL WILSON, ASSISTANT ATTORNEY GENERAL PETERSEN, WILLIAM
BRADFORD REYNOLDS, BEATRICE ROSENBERG, AND SIDNEY M. GLAZER.     EDWIN
A. SCHROERING, JR., ARGUED THE CAUSE FOR RESPONDENTS IN NO. 70-85. 
WITH HIM ON THE BRIEF WAS W. C. FISHER, JR., JOSEPH F. HURLEY, FIRST
ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE FOR RESPONDENT,
COMMONWEALTH OF MASSACHUSETTS, IN NO. 70-94.  WITH HIM ON THE BRIEF
WERE ROBERT H. QUINN, ATTORNEY GENERAL, WALTER H. MAYO III, ASSISTANT
ATTORNEY GENERAL, AND LAWRENCE T. BENCH, DEPUTY ASSISTANT ATTORNEY
GENERAL.  ANTHONY G. AMSTERDAM ARGUED THE CAUSE FOR RESPONDENT IN NO.
70-57.  WITH HIM ON THE BRIEF WERE JACK GREENBERG, JAMES M. NABRIT III,
CHARLES STEPHEN RALSTON, AND WILLIAM BENNETT TURNER. 

WILLIAM BRADFORD REYNOLDS ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE URGING AFFIRMANCE IN NOS. 70-85 AND 70-94.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, AND BEATRICE ROSENBERG. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN NO. 70-57 AND REVERSAL
IN NOS. 70-85 AND 70-94 WERE FILED BY ALEXANDER M. BICKEL, LAWRENCE J.
MCKAY, FLOYD ABRAMS, DANIEL SHEEHAN, CORYDON B. DUNHAM, CLARENCE J.
FRIED, ALAN J. HRUSKA, ROBERT S. RIFKIND, ANTHONY A. DEAN, AND EDWARD
C. WALLACE FOR NEW YORK TIMES CO., INC., ET AL.; BY DON H. REUBEN,
LAWRENCE GUNNELS, STEVEN L. BASHWINER, AND THOMAS F. GING FOR CHICAGO
TRIBUNE CO.; BY ARTHUR B. HANSON FOR THE AMERICAN NEWSPAPER PUBLISHERS
ASSOCIATION; AND BY IRVING LEUCHTER FOR THE AMERICAN NEWSPAPER GUILD,
AFL-CIO, CLC. 

JOHN T. CORRIGAN FILED A BRIEF FOR THE NATIONAL DISTRICT ATTORNEYS
ASSOCIATION URGING REVERSAL IN NO. 70-57 AND AFFIRMANCE IN NO. 70-94. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN NO. 70-57 WERE FILED BY
IRWIN KARP FOR THE AUTHORS LEAGUE OF AMERICA, INC.; BY W. THEODORE
PIERSON AND J. LAURENT SCHARFF FOR THE RADIO TELEVISION NEWS DIRECTORS
ASSOCIATION; AND BY EARLE K. MOORE AND SAMUEL RABINOVE FOR THE OFFICE
OF COMMUNICATION OF THE UNITED CHURCH OF CHRIST ET AL. 

BRIEFS OF AMICI CURIAE IN NO. 70-57 WERE FILED BY LEO P. LARKIN,
JR., STANLEY GODOFSKY, AND JOHN J. SHEEHY FOR WASHINGTON POST CO. ET
AL.; BY RICHARD M. SCHMIDT, JR., FOR THE AMERICAN SOCIETY OF NEWSPAPER
EDITORS ET AL.; BY ROGER A. CLARK FOR THE NATIONAL PRESS PHOTOGRAPHERS
ASSOCIATION, INC.; AND BY MELVIN L. WULF, PAUL N. HALVONIK, A.L. WIRIN,
FRED OKRAND, AND LAWRENCE R. SPERBER FOR THE AMERICAN CIVIL LIBERTIES
UNION ET AL.
..END :




















KLEINDIENST V. MANDEL, 408 U.S. 753 


       KLEINDIENST, ATTORNEY GENERAL, ET AL. V. MANDEL ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF NEW YORK

NO. 71-16.  ARGUED APRIL 18, 1972-- DECIDED JUNE 29, 1972 


THIS ACTION WAS BROUGHT TO COMPEL THE ATTORNEY GENERAL TO GRANT A
TEMPORARY NONIMMIGRANT VISA TO A BELGIAN JOURNALIST AND MARXIAN
THEORETICIAN WHOM THE AMERICAN PLAINTIFF-APPELLEES HAD INVITED TO
PARTICIPATE IN ACADEMIC CONFERENCES AND DISCUSSIONS IN THIS COUNTRY. 
THE ALIEN HAD BEEN FOUND INELIGIBLE FOR ADMISSION UNDER SECS.
212(A)(28)(D) AND (G)(V) OF THE IMMIGRATION AND NATIONALITY ACT OF
1952, BARRING THOSE WHO ADVOCATE OR PUBLISH "THE ECONOMIC,
INTERNATIONAL, AND GOVERNMENTAL DOCTRINES OF WORLD COMMUNISM."  THE
ATTORNEY GENERAL HAD DECLINED TO WAIVE INELIGIBILITY AS HE HAS THE
POWER TO DO UNDER SEC. 212(D) OF THE ACT, BASING HIS DECISION ON
UNSCHEDULED ACTIVITIES ENGAGED IN BY THE ALIEN ON A PREVIOUS VISIT TO
THE UNITED STATES, WHEN A WAIVER WAS GRANTED.  A THREE-JUDGE DISTRICT
COURT, ALTHOUGH HOLDING THAT THE ALIEN HAD NO PERSONAL ENTRY RIGHT,
CONCLUDED THAT CITIZENS OF THIS COUNTRY HAD A FIRST AMENDMENT RIGHT TO
HAVE HIM ENTER AND TO HEAR HIM, AND ENJOINED ENFORCEMENT OF SEC. 212 AS
TO THIS ALIEN.  HELD:  IN THE EXERCISE OF CONGRESS' PLENARY POWER TO
EXCLUDE ALIENS OR PRESCRIBE THE CONDITIONS FOR THEIR ENTRY INTO THIS
COUNTRY, CONGRESS IN SEC. 212(A)(28) OF THE ACT HAS DELEGATED
CONDITIONAL EXERCISE OF THIS POWER TO THE EXECUTIVE BRANCH.  WHEN, AS
IN THIS CASE, THE ATTORNEY GENERAL DECIDES FOR A LEGITIMATE AND BONA
FIDE REASON NOT TO WAIVE THE STATUTORY EXCLUSION OF AN ALIEN, COURTS
WILL NOT LOOK BEHIND HIS DECISION OR WEIGH IT AGAINST THE FIRST
AMENDMENT INTERESTS OF THOS WHO WOULD PERSONALLY COMMUNICATE WITH THE
ALIEN.  PP. 761-770. 

325 F.SUPP.  620, REVERSED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, 0WHITE, POWELL, AND REHNQUIST, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 770.  MARSHALL, J.,
FILED A DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED, POST, P.
774. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THE APPELLEES HAVE FRAMED THE ISSUE HERE AS FOLLOWS: 

"DOES APPELLANTS' ACTION IN REFUSING TO ALLOW AN ALIEN SCHOLAR

  TO ENTER THE COUNTRY TO ATTEND ACADEMIC MEETINGS VIOLATE THE

  FIRST AMENDMENT RIGHTS OF AMERICAN SCHOLARS AND STUDENTS WHO HAD

  INVITED HIM?"  /1/

EXPRESSED IN STATUTORY TERMS, THE QUESTION IS WHETHER SECS.
212(A)(28)(D) AND (G)(V) AND SEC. 212(D)(3)(A) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 182, 8 U.S.C. 1182(A)(28)(D) AND
(G)(V) AND SEC. 1182(D)(3)(A), PROVIDING THAT CERTAIN ALIENS "SHALL BE
INELIGIBLE TO RECEIVE VISAS AND SHALL BE EXCLUDED FROM ADMISSION INTO
THE UNITED STATES" UNLESS THE ATTORNEY GENERAL, IN HIS DISCRETION, UPON
RECOMMENDATION BY THE SECRETARY OF STATE OR A CONSULAR OFFICER, WAIVES
INADMISSIBILITY AND APPROVES TEMPORARY ADMISSION, ARE UNCONSTITUTIONAL
AS APPLIED HERE IN THAT THEY DEPRIVE AMERICAN CITIZENS OF FREEDOM OF
SPEECH GUARANTEED BY THE FIRST AMENDMENT. 

THE CHALLENGED PROVISIONS OF THE STATUTE ARE: 

"SECTION 212(A).  EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, THE
FOLLOWING CLASSES OF ALIENS SHALL BE INELIGIBLE TO RECEIVE VISAS AND
SHALL BE EXCLUDED FROM ADMISSION INTO THE UNITED STATES:

        .          .          .          . 

 "(28) ALIENS WHO ARE, OR AT ANY TIME HAVE BEEN, MEMBERS OF ANY OF
THE FOLLOWING CLASSES:

        .          .   .          . 

     "(D) ALIENS NOT WITHIN ANY OF THE OTHER PROVISIONS OF THIS

  PARAGRAPH WHO ADVOCATE THE ECONOMIC, INTERNATIONAL, AND

  GOVERNMENTAL DOCTRINES OF WORLD COMMUNISM OR THE ESTABLISHMENT IN

  THE UNITED STATES OF A TOTALITARIAN DICTATORSHIP . . . .

        .          .      .          . 

     "(G) ALIENS WHO WRITE OR PUBLISH . . . (V) THE ECONOMIC,

  INTERNATIONAL, AND GOVERNMENTAL DOCTRINES OF WORLD COMMUNISM OR

  THE ESTABLISHMENT IN THE UNITED STATES OF A TOTALITARIAN

  DICTATORSHIP; . . . "(D)

        .          .          .          . 

     "(3) EXCEPT AS PROVIDED IN THIS SUBSECTION, AN ALIEN (A) WHO
IS

  APPLYING FOR A NONIMMIGRANT VISA AND IS KNOWN OR BELIEVED BY THE

  CONSULAR OFFICER TO BE INELIGIBLE FOR SUCH VISA UNDER ONE OR MORE

  OF THE PARAGRAPHS ENUMERATED IN SUBSECTION (A) . . . MAY, AFTER

  APPROVAL BY THE ATTORNEY GENERAL OF A RECOMMENDATION BY THE

  SECRETARY OF STATE OR BY THE CONSULAR OFFICER THAT THE ALIEN BE

  ADMITTED TEMPORARILY DESPITE HIS INADMISSIBILITY, BE GRANTED SUCH

  A VISA AND MAY BE ADMITTED INTO THE UNITED STATES TEMPORARILY AS

A NONIMMIGRANT IN THE DISCRETION OF THE ATTORNEY GENERAL . . . "

DETAILED REPORT TO THE CONGRESS IN ANY CASE IN WHICH HE EXERCISES HIS
AUTHORITY UNDER PARAGRAPH (3) OF THIS SUBSECTION ON BEHALF OF ANY ALIEN
EXCLUDABLE UNDER PARAGRAPHS (9), (10), AND (28).  . . . "

        I 

ERNEST E. MANDEL RESIDES IN BRUSSELS, BELGIUM, AND IS A BELGIAN
CITIZEN.  HE IS A PROFESSIONAL JOURNALIST AND IS EDITOR-IN-CHIEF OF THE
BELGIAN LEFT SOCIALIST WEEKLY LA GAUCHE.  HE IS AUTHOR OF A TWO-VOLUME
WORK ENTITLED MARXIST ECONOMIC THEORY PUBLISHED IN 1969.  HE ASSERTED
IN HIS VISA APPLICATIONS THAT HE IS NOT A MEMBER OF THE COMMUNIST
PARTY.  HE HAS DESCRIBED HIMSELF, HOWEVER, AS "A REVOLUTIONARY
MARXIST."  /2/  HE DOES NOT DISPUTE, SEE 325 F.SUPP.  620, 624, THAT HE
ADVOCATES THE ECONOMIC, GOVERNMENTAL, AND INTERNATIONAL DOCTRINES OF
WORLD COMMUNISM.  /3/ 

MANDEL WAS ADMITTED TO THE UNITED STATES TEMPORARILY IN 1962 AND
AGAIN IN 1968.  ON THE FIRST VISIT HE CAME AS A WORKING JOURNALIST.  ON
THE SECOND HE ACCEPTED INVITATIONS TO SPEAK AT A NUMBER OF UNIVERSITIES
AND COLLEGES.  ON EACH OCCASION, ALTHOUGH APPARENTLY HE WAS NOT THEN
AWARE OF IT, HIS ADMISSION FOLLOWED A FINDING OF INELIGIBILITY UNDER
SEC. 212(A)(28), AND THE ATTORNEY GENERAL'S EXERCISE OF DISCRETION TO
ADMIT HIM TEMPORARILY, ON RECOMMENDATION OF THE SECRETARY OF STATE, AS
SEC. 212(D)(3)(A) PERMITS. 

ON SEPTEMBER 8, 1969, MANDEL APPLIED TO THE AMERICAN CONSUL IN
BRUSSELS FOR A NONIMMIGRANT VISA TO ENTER THE UNITED STATES IN OCTOBER
FOR A SIX-DAY PERIOD, DURING WHICH HE WOULD PARTICIPATE IN A CONFERENCE
ON TECHNOLOGY AND THE THIRD WORLD AT STANFORD UNIVERSITY.  /4/  HE HAD
BEEN INVITED TO STANFORD BY THE GRADUATE STUDENT ASSOCIATION THERE. 
THE INVITATION STATED THAT JOHN KENNETH GALBRAITH WOULD PRESENT THE
KEYNOTE ADDRESS AND THAT MANDEL WOULD BE EXPECTED TO PARTICIPATE IN AN
ENSUING PANEL DISCUSSION AND TO GIVE A MAJOR ADDRESS THE FOLLOWING
DAY.  THE UNIVERSITY, THROUGH THE OFFICE OF ITS PRESIDENT, "HEARTILY
ENDORSED)" THE INVITATION.  WHEN MANDEL'S INTENDED VISIT BECAME KNOWN,
ADDITIONAL INVITATIONS FOR LECTURES AND CONFERENCE PARTICIPATIONS CAME
TO HIM FROM MEMBERS OF THE FACULTIES AT PRINCETON, AMHERST, COLUMBIA,
AND VASSAR, FROM GROUPS IN CAMBRIDGE, MASSACHUSETTS, AND NEW YORK CITY,
AND FROM OTHERS.  ONE CONFERENCE, TO BE IN NEW YORK CITY, WAS SPONSORED
JOINTLY BY THE BERTRAND RUSSELL PEACE FOUNDATION AND THE SOCIALIST
SCHOLARS CONFERENCE; MANDEL'S ASSIGNED SUBJECT THERE WAS "REVOLUTIONARY
STRATEGY IN IMPERIALIST COUNTRIES."  MANDEL THEN FILED A SECOND VISA
APPLICATION PROPOSING A MORE EXTENSIVE ITINERARY AND A STAY OF GREATER
DURATION. 

ON OCTOBER 23 THE CONSUL AT BRUSSELS INFORMED MANDEL ORALLY THAT HIS
APPLICATION OF SEPTEMBER 8 HAD BEEN REFUSED.  THIS WAS CONFIRMED IN
WRITING ON OCTOBER 30.  THE CONSUL'S LETTER ADVISED HIM OF THE FINDING
OF INADMISSIBILITY UNDER SEC. 212(A)(28) IN 1962, THE WAIVERS IN THAT
YEAR AND IN 1968, AND THE CURRENT DENIAL OF A WAIVER.  IT SAID,
HOWEVER, THAT ANOTHER REQUEST FOR WAIVER WAS BEING FORWARDED TO
WASHINGTON IN CONNECTION WITH MANDEL'S SECOND APPLICATION FOR A VISA. 
THE DEPARTMENT OF STATE, BY A LETTER DATED NOVEMBER 6 FROM ITS BUREAU
OF SECURITY AND CONSULAR AFFAIRS TO MANDEL'S NEW YORK ATTORNEY,
ASSERTED THAT THE EARLIER WAIVERS HAD BEEN GRANTED ON CONDITION THAT
MANDEL CONFORM TO HIS ITINERARY AND LIMIT HIS ACTIVITIES TO THE STATED
PURPOSES OF HIS TRIP, BUT THAT ON HIS 1968 VISIT HE HAD ENGAGED IN
ACTIVITIES BEYOND THE STATED PURPOSES.  /5/  FOR THIS REASON, IT WAS
SAID, A WAIVER "WAS NOT SOUGHT IN CONNECTION WITH HIS SEPTEMBER VISA
APPLICATION."  THE DEPARTMENT WENT ON TO SAY, HOWEVER, THAT IT HAD NOW
LEARNED THAT MANDEL MIGHT NOT HAVE BEEN AWARE IN 1968 OF THE CONDITIONS
AND LIMITATIONS ATTACHED TO HIS VISA ISSUANCE, AND THAT, IN VIEW OF
THIS AND UPON HIS ASSURANCES THAT HE WOULD CONFORM TO HIS STATED
ITINERARY AND PURPOSES, THE DEPARTMENT WAS RECONSIDERING HIS CASE.  ON
DECEMBER 1 THE CONSUL AT BRUSSELS INFORMED MANDEL THAT HIS VISA HAD
BEEN REFUSED. 

THE DEPARTMENT OF STATE IN FACT HAD RECOMMENDED TO THE ATTORNEY
GENERAL THAT MANDEL'S INELIGIBILITY BE WAIVED WITH RESPECT TO HIS
OCTOBER VISA APPLICATION.  THE IMMIGRATION AND NATURALIZATION SERVICE,
HOWEVER, ACTING ON BEHALF OF THE ATTORNEY GENERAL, SEE 28 U.S.C. 510,
IN A LETTER DATED FEBRUARY 13, 1970, TO NEW YORK COUNSEL STATED THAT IT
HAD DETERMINED THAT MANDEL'S 1968 ACTIVITIES WHILE IN THE UNITED STATES
"WENT FAR BEYOND THE STATED PURPOSES OF HIS TRIP, ON THE BASIS OF WHICH
HIS ADMISSION HAD BEEN AUTHORIZED AND REPRESENTED A FLAGRANT ABUSE OF
THE OPPORTUNITIES AFFORDED HIM TO EXPRESS HIS VIEWS IN THIS COUNTRY." 
THE LETTER CONCLUDED THAT FAVORABLE EXERCISE OF DISCRETION, PROVIDED
FOR UNDER THE ACT, WAS NOT WARRANTED AND THAT MANDEL'S TEMPORARY
ADMISSION WAS NOT AUTHORIZED. 

MANDEL'S ADDRESS TO THE NEW YORK MEETING WAS THEN DELIVERED BY
TRANSATLANTIC TELEPHONE. 

IN MARCH MANDEL AND SIX OF THE OTHER APPELLEES INSTITUTED THE
PRESENT ACTION AGAINST THE ATTORNEY GENERAL AND THE SECRETARY OF
STATE.  THE TWO REMAINING APPELLEES SOON CAME INTO THE LAWSUIT BY AN
AMENDMENT TO THE COMPLAINT.  ALL THE APPELLEES WHO JOINED MANDEL IN
THIS ACTION ARE UNITED STATES CITIZENS AND ARE UNIVERSITY PROFESSORS IN
VARIOUS FIELDS OF THE SOCIAL SCIENCES.  THEY ARE PERSONS WHO INVITED
MANDEL TO SPEAK AT UNIVERSITIES AND OTHER FORUMS IN THE UNITED STATES
OR WHO EXPECTED TO PARTICIPATE IN COLLOQUIA WITH HIM SO THAT, AS THE
COMPLAINT ALLEGED, "THEY MAY HEAR HIS VIEWS AND ENGAGE HIM IN A FREE
AND OPEN ACADEMIC EXCHANGE." 

PLAINTIFF-APPELLEES CLAIM THAT THE STATUTES ARE UNCONSTITUTIONAL ON
THEIR FACE AND AS APPLIED IN THAT THEY DEPRIVE THE AMERICAN PLAINTIFFS
OF THEIR FIRST AND FIFTH AMENDMENT RIGHTS.  SPECIFICALLY, THESE
PLAINTIFFS CLAIM THAT THE STATUTES PREVENT THEM FROM HEARING AND
MEETING WITH MANDEL IN PERSON FOR DISCUSSIONS, IN CONTRAVENTION OF THE
FIRST AMENDMENT; THAT SEC. 212(A)(28) DENIES THEM EQUAL PROTECTION BY
PERMITTING ENTRY OF "RIGHTISTS" BUT NOT "LEFTISTS" AND THAT THE SAME
IS AN UNCONSTITUTIONAL DELEGATION OF CONGRESSIONAL POWER TO THE
ATTORNEY GENERAL BECAUSE OF ITS BROAD TERMS, LACK OF STANDARDS, AND
LACK OF PRESCRIBED PROCEDURES; AND THAT APPLICATION OF THE STATUTES TO
MANDEL WAS "ARBITRARY AND CAPRICIOUS" BECAUSE THERE WAS NO BASIS IN
FACT FOR CONCLUDING THAT HE WAS INELIGIBLE, AND NO RATIONAL REASON OR
BASIS IN FACT FOR DENYING HIM A WAIVER ONCE HE WAS DETERMINED
INELIGIBLE.  DECLARATORY AND INJUNCTIVE RELIEF WAS SOUGHT. 

A THREE-JUDGE DISTRICT COURT WAS DULY CONVENED.  THE CASE WAS TRIED
ON THE PLEADINGS AND AFFIDAVITS WITH EXHIBITS.  TWO JUDGES HELD THAT,
ALTHOUGH MANDEL HAD NO PERSONAL RIGHT TO ENTER THE UNITED STATES,
CITIZENS OF THIS COUNTRY HAVE A FIRST AMENDMENT RIGHT TO HAVE HIM ENTER
AND TO HEAR HIM EXPLAIN AND SEEK TO DEFEND HIS VIEWS.  THE COURT THEN
ENTERED A DECLARATORY JUDGMENT THAT SEC. 212(A)(28) AND SEC.
212(D)(3)(A) WERE INVALID AND VOID INSOFAR AS THEY HAD BEEN OR MIGHT BE
INVOKED BY THE DEFENDANTS TO FIND MANDEL INELIGIBLE FOR ADMISSION.  THE
DEFENDANTS WERE ENJOINED FROM IMPLEMENTING AND ENFORCING THOSE STATUTES
SO AS TO DENY MANDEL ADMISSION AS A NONIMMIGRANT VISITOR.  325 F.SUPP. 
620 (EDNY 1971).  JUDGE BARTELS DISSENTED.  ID., AT 637.  PROBABLE
JURISDICTION WAS NOTED.  404 U.S. 1013 (1972). 

        II 

UNTIL 1875 ALIEN MIGRATION TO THE UNITED STATES WAS UNRESTRICTED. 
THE ACT OF MARCH 3, 1875, 18 STAT. 477, BARRED CONVICTS AND
PROSTITUTES.  SEVEN YEARS LATER CONGRESS PASSED THE FIRST GENERAL
IMMIGRATION STATUTE.  ACT OF AUG. 3, 1882, 22 STAT. 214.  OTHER
LEGISLATION FOLLOWED.  A GENERAL REVISION OF THE IMMIGRATION LAWS WAS
EFFECTED BY THE ACT OF MAR. 3, 1903, 32 STAT. 1213.  SECTION 2 OF THAT
ACT MADE INELIGIBLE FOR ADMISSION "ANARCHISTS, OR PERSONS WHO BELIEVE
IN OR ADVOCATE THE OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF
THE UNITED STATES OR OF ALL GOVERNMENT OR OF ALL FORMS OF LAW."  BY THE
ACT OF OCT. 16, 1918, 40 STAT. 1012, CONGRESS EXPANDED THE PROVISIONS
FOR THE EXCLUSION OF SUBVERSIVE ALIENS.  TITLE II OF THE ALIEN
REGISTRATION ACT OF 1940, 54 STAT. 671, AMENDED THE 1918 ACT TO BAR
ALIENS WHO, AT ANY TIME, HAD ADVOCATED OR WERE MEMBERS OF OR AFFILIATED
WITH ORGANIZATIONS THAT ADVOCATED VIOLENT OVERTHROW OF THE UNITED
STATES GOVERNMENT. 

IN THE YEARS THAT FOLLOWED, AFTER EXTENSIVE INVESTIGATION AND
NUMEROUS REPORTS BY CONGRESSIONAL COMMITTEES, SEE COMMUNIST PARTY V.
SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1, 94 N. 37 (1961),
CONGRESS PASSED THE INTERNAL SECURITY ACT OF 1950, 64 STAT. 987.  THIS
ACT DISPENSED WITH THE REQUIREMENT OF THE 1940 ACT OF A FINDING IN EACH
CASE, WITH RESPECT TO MEMBERS OF THE COMMUNIST PARTY, THAT THE PARTY
DID IN FACT ADVOCATE VIOLENT OVERTHROW OF THE GOVERNMENT.  THESE
PROVISIONS WERE CARRIED FORWARD INTO THE IMMIGRATION AND NATIONALITY
ACT OF 1952. 

WE THUS HAVE ALMOST CONTINUOUS ATTENTION ON THE PART OF CONGRESS
SINCE 1875 TO THE PROBLEMS OF IMMIGRATION AND OF EXCLUDABILITY OF
CERTAIN DEFINED CLASSES OF ALIENS.  THE PATTERN GENERALLY HAS BEEN ONE
OF INCREASING CONTROL WITH PARTICULAR ATTENTION, FOR ALMOST 70 YEARS
NOW, FIRST TO ANARCHISTS AND THEN TO THOSE WITH COMMUNIST AFFILIATION
OR VIEWS. 

   III 

IT IS CLEAR THAT MANDEL PERSONALLY, AS AN UNADMITTED AND NONRESIDENT
ALIEN, HAD NO CONSTITUTIONAL RIGHT OF ENTRY TO THIS COUNTRY AS A
NONIMMIGRANT OF OTHERWISE.  UNITED STATES EX REL. TURNER V. WILLIAMS,
194 U.S. 279, 292 (1904); UNITED STATES EX REL. KNAUFF V. SHAUGHNESSY,
338 U.S. 537, 542 (1950); GALVAN V. PRESS, 347 U.S. 522, 530-532
(1954); SEE HARISIADES V. SHAUGHNESSY, 342 U.S. 580, 592 (1952). 

THE APPELLEES CONCEDE THIS.  BRIEF FOR APPELLEES 33; TR. OF ORAL
ARG. 28.  INDEED, THE AMERICAN APPELLEES ASSERT THAT "THEY SUE TO
ENFORCE THEIR RIGHTS, INDIVIDUALLY AND AS MEMBERS OF THE AMERICAN
PUBLIC, AND ASSERT NONE ON THE PART OF THE INVITED ALIEN."  BRIEF FOR
APPELLEES 14.  "DR. MANDEL IS IN A SENSE MADE A PLAINTIFF BECAUSE HE IS
SYMBOLIC OF THE PROBLEM."  TR. OF ORAL ARG. 22. 

THE CASE, THEREFORE, COMES DOWN TO THE NARROW ISSUE WHETHER THE
FIRST AMENDMENT CONFERS UPON THE APPELLEE PROFESSORS, BECAUSE THEY WISH
TO HEAR, SPEAK, AND DEBATE WITH MANDEL IN PERSON, THE ABILITY TO
DETERMINE THAT MANDEL SHOULD BE PERMITTED TO ENTER THE COUNTRY OR, IN
OTHER WORDS, TO COMPEL THE ATTORNEY GENERAL TO ALLOW MANDEL'S
ADMISSION. 

        IV     IN A VARIETY OF CONTEXTS THIS COURT HAS REFERRED TO
A FIRST AMENDMENT RIGHT TO "RECEIVE INFORMATION AND IDEAS": 

"IT IS NOW WELL ESTABLISHED THAT THE CONSTITUTION PROTECTS THE

  RIGHT TO RECEIVE INFORMATION AND IDEAS.  'THIS FREEDOM (OF SPEECH

  AND PRESS) . . . NECESSARILY PROTECTS THE RIGHT TO RECEIVE . . .

  . '  MARTIN V. CITY OF STRUTHERS, 319 U.S. 141, 143 (1943) . . .

  . "  STANLEY V. GEORGIA, 394 U.S. 557, 564 (1969). 

THIS WAS ONE BASIS FOR THE DECISION IN THOMAS V. COLLINS, 323 U.S. 516
(1945).  THE COURT THERE HELD THAT A LABOR ORGANIZER'S RIGHT TO SPEAK
AND THE RIGHTS OF WORKERS "TO HEAR WHAT HE HAD TO SAY," ID., AT 534,
WERE BOTH ABRIDGED BY A STATE LAW REQUIRING ORGANIZERS TO REGISTER
BEFORE SOLICITING UNION MEMBERSHIP.  IN A VERY DIFFERENT SITUATION, MR.
JUSTICE WHITE, SPEAKING FOR A UNANIMOUS COURT UPHOLDING THE FCC'S
"FAIRNESS DOCTRINE" IN RED LION BROADCASTING CO. V. FCC, 395 U.S. 367,
386-390 (1969), SAID: 

"IT IS THE PURPOSE OF THE FIRST AMENDMENT TO PRESERVE AN UNINHIBITED
MARKETPLACE OF IDEAS IN WHICH TRUTH WILL ULTIMATELY PREVAIL . . . . IT
IS THE RIGHT OF THE PUBLIC TO RECEIVE SUITABLE ACCESS TO SOCIAL,
POLITICAL, ESTHETIC, MORAL, AND OTHER IDEAS AND EXPERIENCES WHICH IS
CRUCIAL HERE.  THAT RIGHT MAY NOT CONSTITUTIONALLY BE ABRIDGED EITHER
BY CONGRESS OR BY THE FCC."  ID., AT 390.  AND IN LAMONT V. POSTMASTER
GENERAL, 381 U.S. 301 (1965), THE COURT HELD THAT A STATUTE PERMITTING
THE GOVERNMENT TO HOLD "COMMUNIST POLITICAL PROPAGANDA" ARRIVING IN THE
MAILS FROM ABROAD UNLESS THE ADDRESSEE AFFIRMATIVELY REQUESTED IN
WRITING THAT IT BE DELIVERED TO HIM PLACED AN UNJUSTIFIABLE BURDEN ON
THE ADDRESSEE'S FIRST AMENDMENT RIGHT.  THIS COURT HAS RECOGNIZED THAT
THIS RIGHT IS "NOWHERE MORE VITAL" THAN IN OUR SCHOOLS AND
UNIVERSITIES.  SHELTON V. TUCKER, 364 U.S. 479, 487 (1960); SWEEZY V.
NEW HAMPSHIRE, 354 U.S. 234, 250 (1957) (PLURALITY OPINION); KEYISHIAN
V. BOARD OF REGENTS, 385 U.S. 589, 603 (1967).  SEE EPPERSON V.
ARKANSAS, 393 U.S. 97 (1968). 

IN THE PRESENT CASE, THE DISTRICT COURT MAJORITY HELD: 

"THE CONCERN OF THE FIRST AMENDMENT IS NOT WITH A NON-RESIDENT
ALIEN'S INDIVIDUAL AND PERSONAL INTEREST IN ENTERING AND BEING HEAR,
BUT WITH THE RIGHTS OF THE CITIZENS OF THE COUNTRY TO HAVE THE ALIEN
ENTER AND TO HEAR HIM EXPLAIN AND SEEK TO DEFEND HIS VIEWS; THAT, AS
GARRISON (V. LOUISIANA, 379 U.S. 64 (1964)) AND RED LION OBSERVE, IS OF
THE ESSENCE OF SELF-GOVERNMENT."  325 F.SUPP.,AT 631.  THE GOVERNMENT
DISPUTES THIS CONCLUSION ON TWO GROUNDS.  FIRST, IT ARGUES THAT
EXCLUSION OF MANDEL INVOLVES NO RESTRICTION ON FIRST AMENDMENT RIGHTS
AT ALL SINCE WHAT IS RESTRICTED IS "ONLY ACTION-- THE ACTION OF THE
ALIEN IN COMING INTO THIS COUNTRY."  BRIEF FOR APPELLANTS 29. 
PRINCIPAL RELIANCE IS PLACED ON ZEMEL V. RUSK, 381 U.S. 1 (1965), WHERE
THE GOVERNMENT'S REFUSAL TO VALIDATE AN AMERICAN PASSPORT FOR TRAVEL TO
CUBA WAS UPHELD.  THE RIGHTS ASSERTED THERE WERE THOSE OF THE PASSPORT
APPLICANT HIMSELF.  THE COURT HELD THAT HIS RIGHT TO TRAVEL AND HIS
ASSERTED ANCILLARY RIGHT TO INFORM HIMSELF ABOUT CUBA DID NOT OUTWEIGH
SUBSTANTIAL "FOREIGN POLICY CONSIDERATIONS AFFECTING ALL CITIZENS"
THAT, WITH THE BACKDROP OF THE CUBAN MISSILE CRISIS, WERE CHARACTERIZED
AS THE "WEIGHTIEST CONSIDERATIONS OF NATIONAL SECURITY."  ID., AT 13,
16.  THE RIGHTS ASSERTED HERE, IN SOME CONTRAST, ARE THOSE OF AMERICAN
ACADEMICS WHO HAVE INVITED MANDEL TO PARTICIPATE WITH THEM IN
COLLOQUIA, DEBATES, AND DISCUSSION IN THE UNITED STATES.  IN LIGHT OF
THE COURT'S PREVIOUS DECISIONS CONCERNING THE "RIGHT TO RECEIVE
INFORMATION," WE CANNOT REALISTICALLY SAY THAT THE PROBLEM FACING US
DISAPPEARS ENTIRELY OR IS NONEXISTENT BECAUSE THE MODE OF REGULATION
BEARS DIRECTLY ON PHYSICAL MOVEMENT.  IN THOMAS THE REGISTRATION
REQUIREMENT ON ITS FACE CONCERNED ONLY ACTION.  IN LAMONT, TOO, THE
FACE OF THE REGULATION DEALT ONLY WITH THE GOVERNMENT'S UNDISPUTED
POWER TO CONTROL PHYSICAL ENTRY OF MAIL INTO THE COUNTRY.  SEE UNITED
STATES V. ROBEL, 389 U.S. 258, 263 (1967). 

THE GOVERNMENT ALSO SUGGESTS THAT THE FIRST AMENDMENT IS
INAPPLICABLE BECAUSE APPELLEES HAVE FREE ACCESS TO MANDEL'S IDEAS
THROUGH HIS BOOKS AND SPEECHES, AND BECAUSE "TECHNOLOGICAL
DEVELOPMENTS," SUCH AS TAPES OR TELEPHONE HOOK-UPS, READILY SUPPLANT
HIS PHYSICAL PRESENCE.  THIS ARGUMENT OVERLOOKS WHAT MAY BE PARTICULAR
QUALITIES INHERENT IN SUSTAINED, FACE-TO-FACE DEBATE, DISCUSSION AND
QUESTIONING.  WHILE ALTERNATIVE MEANS OF ACCESS TO MANDEL'S IDEAS MIGHT
BE A RELEVANT FACTOR WERE WE CALLED UPON TO BALANCE FIRST AMENDMENT
RIGHTS AGAINST GOVERNMENTAL REGULATORY INTERESTS-- A BALANCE WE FIND
UNNECESSARY HERE IN LIGHT OF THE DISCUSSION THAT FOLLOWS IN PART V-- WE
ARE LOATH TO HOLD ON THIS RECORD THAT EXISTENCE OF OTHER ALTERNATIVES
EXTINGUISHES ALTOGETHER ANY CONSTITUTIONAL INTEREST ON THE PART OF THE
APPELLEES IN THIS PARTICULAR FORM OF ACCESS. 

        V 

RECOGNITION THAT FIRST AMENDMENT RIGHTS ARE IMPLICATED, HOWEVER, IS
NOT DISPOSITIVE OF OUR INQUIRY HERE.  IN ACCORD WITH ANCIENT PRINCIPLES
OF THE INTERNATIONAL LAW OF NATION-STATES, THE COURT IN THE CHINESE
EXCLUSION CASE, 130 U.S. 581, 609 (1889), AND IN FONG YUE TING V.
UNITED STATES, 149 U.S. 698 (1893), HELD BROADLY, AS THE GOVERNMENT
DESCRIBES IT, BRIEF FOR APPELLANTS 20, THAT THE POWER TO EXCLUDE ALIENS
IS "INHERENT IN SOVEREIGNTY, NECESSARY FOR MAINTAINING NORMAL
INTERNATIONAL RELATIONS AND DEFENDING THE COUNTRY AGAINST FOREIGN
ENCROACHMENTS AND DANGERS-- A POWER TO BE EXERCISED EXCLUSIVELY BY THE
POLITICAL BRANCHES OF GOVERNMENT . . . . "  SINCE THAT TIME, THE
COURT'S GENERAL REAFFIRMATIONS OF THIS PRINCIPLE HAVE BEEN LEGION.  /6/
THE COURT WITHOUT EXCEPTION HAS SUSTAINED CONGRESS'"PLENARY POWER TO
MAKE RULES FOR THE ADMISSION OF ALIENS AND TO EXCLUDE THOSE WHO POSSESS
THOSE CHARACTERISTICS WHICH CONGRESS HAS FORBIDDEN."  BOUTILIER V.
IMMIGRATION AND NATURALIZATION SERVICE, 387 U.S. 118, 123 (1967). 
"(OVER NO CONCEIVABLE SUBJECT IS THE LEGISLATIVE POWER OF CONGRESS MORE
COMPLETE THAN IT IS OVER" THE ADMISSION OF ALIENS.  OCEANIC NAVIGATION
CO. V. STRANAHAN, 214 U.S. 320, 339 (1909).  IN LEM MOON SING V. UNITED
STATES, 158 U.S. 538, 547 (1895), THE FIRST MR. JUSTICE HARLAN SAID: 

     "THE POWER OF CONGRESS TO EXCLUDE ALIENS ALTOGETHER FROM THE

  UNITED STATES, OR TO PRESCRIBE THE TERMS AND CONDITIONS UPON

  WHICH THEY MAY COME TO THIS COUNTRY, AND TO HAVE ITS DECLARED

  POLICY IN THAT REGARD ENFORCED EXCLUSIVELY THROUGH EXECUTIVE

  OFFICERS, WITHOUT JUDICIAL INTERVENTION, IS SETTLED BY OUR

  PREVIOUS ADJUDICATIONS." 

MR. JUSTICE FRANKFUTER ABLY ARTICULATED THIS HISTORY IN GALVAN V.
PRESS, 347 U.S. 522 (1954), A DEPORTATION CASE, AND WE CAN DO NOT
BETTER.  AFTER SUGGESTING, AT 530, THAT "MUCH COULD BE SAID FOR THE
VIEW" THAT DUE PROCESS PLACES SOME LIMITATIONS ON CONGRESSIONAL POWER
IN THIS AREA "WERE WE WRITING ON A CLEAN SLATE," HE CONTINUED: 

     "BUT THE SLATE IS NOT CLEAN.  AS TO THE EXTENT OF THE POWER OF

  CONGRESS UNDER REVIEW, THERE IS NOT MERELY 'A PAGE IN HISTORY'  .

. . BUT A WHOLE VOLUME.  POLICIES PERTAINING TO THE ENTRY OF

  ALIENS AND THEIR RIGHT TO REMAIN HERE ARE PECULIARLY CONCERNED

  WITH THE POLITICAL CONDUCT OF GOVERNMENT.  IN THE ENFORCEMENT OF

  THESE POLICIES, THE EXECUTIVE BRANCH OF THE GOVERNMENT MUST

  RESPECT THE PROCEDURAL SAFEGUARDS OF DUE PROCESS.  . . . BUT THAT

  THE FORMULATION OF THESE POLICIES IS ENTRUSTED EXCLUSIVELY TO

  CONGRESS HAS BECOME ABOUT AS FIRMLY EMBEDDED IN THE LEGISLATIVE

  AND JUDICIAL TISSUES OF OUR BODY POLITIC AS ANY ASPECT OF OUR

  GOVERNMENT.  . . . 

     "WE ARE NOT PREPARED TO DEEM OURSELVES WISE OR MORE SENSITIVE

  TO HUMAN RIGHTS THAN OUR PREDECESSORS, ESPECIALLY THOSE WHO HAVE

  BEEN MOST ZEALOUS IN PROTECTING CIVIL LIBERTIES UNDER THE

  CONSTITUTION, AND MUST THEREFORE UNDER OUR CONSTITUTIONAL SYSTEM

  RECOGNIZE CONGRESSIONAL POWER IN DEALING WITH ALIENS.  . . . "

  ID., AT 531-532. 

WE ARE NOT INCLINED IN THE PRESENT CONTEXT TO RECONSIDER THIS LINE
OF CASES.  INDEED, THE APPELLEES, IN CONTRAST TO THE AMICUS, DO NOT ASK
THAT WE DO SO.  THE APPELLEES RECOGNIZE THE FORCE OF THESE MANY
PRECEDENTS.  IN SEEKING TO SUSTAIN THE DECISION BELOW, THEY CONCEDE
THAT CONGRESS COULD ENACT A BLANKET PROHIBITION AGAINST ENTRY OF ALL
ALIENS FALLING INTO THE CLASS DEFINED BY SEC. 212(A)(28)(D) AND (G)(V),
AND THAT FIRST AMENDMENT RIGHTS COULD NOT OVERRIDE THAT DECISION. 
BRIEF FOR APPELLEES 16.  BUT THEY CONTEND THAT BY PROVIDING A WAIVER
PROCEDURE, CONGRESS CLEARLY INTENDED THAT PERSONS INELIGIBLE UNDER THE
BROAD PROVISION OF THE SECTION WOULD BE TEMPORARILY ADMITTED WHEN
APPROPRIATE "FOR HUMANE REASONS AND FOR REASONS OF PUBLIC INTEREST." 
S. REP. NO. 1137, 82D CONG., 2D SESS., 12 (1952).  THEY ARGUE THAT THE
EXECUTIVE'S IMPLEMENTATION OF THIS CONGRESSIONAL MANDATE THROUGH
DECISION WHETHER TO GRANT A WAIVER IN EACH INDIVIDUAL CASE MUST BE
LIMITED BY THE FIRST AMENDMENT RIGHTS OF PERSONS LIKE APPELLEES. 
SPECIFICALLY, THEIR POSITION IS THAT THE FIRST AMENDMENT RIGHTS MUST
PREVAIL, AT LEAST WHERE THE GOVERNMENT ADVANCES NO JUSTIFICATION FOR
FAILING TO GRANT A WAIVER.  THEY POINT TO THE FACT THAT WAIVERS HAVE
BEEN GRANTED IN THE VAST MAJORITY OF CASES.  /7/ 

APPELLEES' FIRST AMENDMENT ARGUMENT WOULD PROVE TOO MUCH.  IN ALMOST
EVERY INSTANCE OF AN ALIEN EXCLUDABLE UNDER SEC, 212(A)(28), THERE ARE
PROBABLY THOSE WHO WOULD WISH TO MEET AND SPEAK WITH HIM.  THE IDEAS OF
MOST SUCH ALIENS MIGHT NOT BE SO INFLUENTIAL AS THOSE OF MANDEL, NOR
HIS AMERICAN AUDIENCE SO NUMEROUS, NOT THE PLANNED DISCUSSION FORUMS SO
IMPRESSIVE.  BUT THE FIRST AMENDMENT DOES NOT PROTECT ONLY THE
ARTICULATE, THE WELL KNOWN, AND THE POPULAR.  WERE WE TO ENDORSE THE
PROPOSITION THAT GOVERNMENTAL POWER TO WITHHOLD A WAIVER MUST YIELD
WHENEVER A BONA FIDE CLAIM IS MADE THAT AMERICAN CITIZENS WISH TO MEET
AND TALK WITH AN ALIEN EXCLUDABLE UNDER SEC. 212(A)(28), ONE OF TWO
UNSATISFACTORY RESULTS WOULD NECESSARILY ENSUE.  EITHER EVERY CLAIM
WOULD PREVAIL, IN WHICH CASE THE PLENARY DISCRETIONARY AUTHORITY
CONGRESS GRANTED THE EXECUTIVE BECOMES A NULLITY, OR COURTS IN EACH
CASE WOULD BE REQUIRED TO WEIGH THE STRENGTH OF THE AUDIENCE'S INTEREST
AGAINST THAT OF THE GOVERNMENT IN REFUSING A WAIVER TO THE PARTICULAR
ALIEN APPLICANT, ACCORDING TO SOME AS YET UNDETERMINED STANDARD.  THE
DANGERS AND THE UNDESIRABILITY OF MAKING THAT DETERMINATION ON THE
BASIS OF FACTORS SUCH AS THE SIZE OF THE AUDIENCE OR THE PROBITY OF THE
SPEAKER'S IDEAS ARE OBVIOUS.  INDEED, IT IS FOR PRECISELY THIS REASON
THAT THE WAIVER DECISION HAS, PROPERLY, BEEN PLACED IN THE HANDS OF THE
EXECUTIVE. 

APPELLEES SEEK TO SOFTEN THE IMPACT OF THIS ANALYSIS BY ARGUING, AS
HAS BEEN NOTED, THAT THE FIRST AMENDMENT CLAIM SHOULD PREVAIL, AT LEAST
WHERE NO JUSTIFICATION IS ADVANCED FOR DENIAL OF A WAIVER.  BRIEF FOR
APPELLEES 26.  THE GOVERNMENT WOULD HAVE US REACH THIS QUESTION, URGING
A BROAD DECISION THAT CONGRESS HAS DELEGATED THE WAIVER DECISION TO THE
EXECUTIVE IN ITS SOLE AND UNFETTERED DISCRETION, AND ANY REASON OR NO
REASON MAY BE GIVEN.  SEE JAY V. BOYD, 351 U.S. 345, 357-358 (1956);
HINTOPOULOS V. SHAUGHNESSY, 353 U.S. 72, 77 (1957); KIMM V. ROSENBERG,
363 U.S. 405, 408 (1960).  THIS RECORD, HOWEVER, DOES NOT REQUIRE THAT
WE DO SO, FOR THE ATTORNEY GENERAL DID NOT REQUIRE THAT WE DO SO, FOR
THE ATTORNEY GENERAL DID INFORM MANDEL'S COUNSEL OF THE REASON FOR
REFUSING HIM A WAIVER.  AND THAT REASON WAS FACIALLY LEGITIMATE AND
BONA FIDE. 

THE GOVERNMENT HAS CHOSEN NOT TO RELY ON THE LETTER TO COUNSEL
EITHER IN THE DISTRICT COURT OR HERE.  THE FACT REMAINS, HOWEVER, THAT
THE OFFICIAL EMPOWERED TO MAKE THE DECISION STATED THAT HE DENIED A
WAIVER BECAUSE HE CONCLUDED THAT PREVIOUS ABUSES BY MADEL MADE IT
INAPPROPRIATE TO GRANT A WAIVER AGAIN.  WITH THIS, WE THINK THE
ATTORNEY GENERAL VALIDLY EXERCISED THE PLENARY POWER THAT CONGRESS
DELEGATED TO THE EXECUTIVE BY SEC. 212(A)(28) AND (D)(3). 

IN SUMMARY, PLENARY CONGRESSIONAL POWER TO MAKE POLICIES AND RULES
FOR EXCLUSION OF ALIENS HAS LONG BEEN FIRMLY ESTABLISHED.  IN THE CASE
OF AN ALIEN EXCLUDABLE UNDER SEC. 212(A)(28), CONGRESS HAS DELEGATED
CONDITIONAL EXERCISE OF THIS POWER TO THE EXECUTIVE.  WE HOLD THAT WHEN
THE EXECUTIVE EXERCISES THIS POWER NEGATIVELY ON THE BASIS OF A
FACIALLY LEGITIMATE AND BONA FIDE REASON, THE COURTS WILL NEITHER LOOK
BEHIND THE EXERCISE OF THAT DISCRETION, NOR TEST IT BY BALANCING ITS
JUSTIFICATION AGAINST THE FIRST AMENDMENT INTERESTS OF THOSE WHO SEEK
PERSONAL COMMUNICATION WITH THE APPLICANT.  WHAT FIRST AMENDMENT OR
OTHER GROUNDS MAY BE AVAILABLE FOR ATTACKING EXERCISE OF DISCRETION FOR
WHICH NO JUSTIFICATION WHATSOEVER IS ADVANCED IS A QUESTION WE NEITHER
ADDRESS NOR DECIDE IN THIS CASE. 

              REVERSED. 

/1/  BRIEF FOR APPELLEES 1. 

/2/  E. MANDEL, REVOLUTIONARY STRATEGY IN THE IMPERIALIST COUNTRIES
(1969), REPRINTED IN APP. 54-66. 

/3/  APPELLEES, WHILE SUGGESTING THAT SEC. 101(A)(40), DEFINING
"WORLD COMMUNISM," AND SEC. 212(A)(28)(D) ARE UNACCEPTABLY VAGUE, "DO
NOT CONTEST THE FACT THAT APPELLANTS CAN AND DO CONCLUDE THAT DR.
MANDEL'S MARXIST ECONOMIC PHILOSOPHY FALLS WITHIN THE SCOPE OF THESE
VAGUE PROVISIONS."  BRIEF FOR APPELLEES 10 N. 8.     /4/  ENTRY
PRESUMABLY WAS CLAIMED AS A NONIMMIGRANT ALIEN UNDER SEC. 101(A)(15)(H)
OF THE ACT, 8 U.S.C. 1101(A)(15)(H), NAMELY, "AN ALIEN HAVING A
RESIDENCE IN A FOREIGN COUNTRY WHICH HE HAS NO INTENTION OF ABANDONING
(I) WHO IS OF DISTINGUISHED MERIT AND ABILITY AND WHO IS COMING
TEMPORARILY TO THE UNITED STATES TO PERFORM SERVICES OF AN EXCEPTIONAL
NATURE REQUIRING SUCH MERIT AND ABILITY.  . . . " 

/5/  MR. JUSTICE DOUGLAS IN HIS DISSENT, POST, AT 773 N. 4, STATES
THAT MANDEL'S NONCOMPLIANCE WITH THE CONDITIONS IMPOSED FOR HIS 1968
VISIT "APPEAR MERELY TO HAVE BEEN HIS SPEAKING AT MORE UNIVERSITIES
THAN HIS VISA APPLICATION INDICATED."  THE LETTER DATED NOVEMBER 6,
1969, FROM THE BUREAU OF SECURITY AND CONSULAR AFFAIRS OF THE
DEPARTMENT OF STATE TO MANDEL'S NEW YORK COUNSEL OBSERVED:  "ON HIS
1968 VISIT, MR. MANDEL ENGAGED IN ACTIVITIES BEYOND THE STATED PURPOSES
OF HIS TRIP.  FOR THIS REASON, A WAIVER OF INELIGIBILITY WAS NOT SOUGHT
IN CONNECTION WITH HIS SEPTEMBER VISA APPLICATION." 

COUNSEL'S AFFIDAVIT IN SUPPORT OF APPELLEE'S MOTION FOR THE
CONVENING OF A THREE-JUDGE COURT AND FOR THE ISSUANCE OF A PRELIMINARY
INJUNCTION STATED: 

"MR. MANDEL FURTHER ASSURED THE CONSUL BY LETTER ON NOVEMBER 10,
1969 THAT HE WOULD NOT APPEAR AT ANY ASSEMBLY IN THE UNITED STATES AT
WHICH MONEY WAS SOLICITED FOR ANY POLITICAL CAUSE.  THIS WAS APPARENTLY
IN RESPONSE TO A CHARGE THAT HE HAD BEEN PRESENT AT SUCH A SOLICITATION
DURING HIS 1968 TOUR.  (SEE ALSO EXHIBIT L.) 

"OF COURSE, JUST AS MR. MANDEL HAD NO PRIOR NOTICE THAT HE WAS
REQUIRED TO ADHERE TO A STATED ITINERARY IN 1968, SO MR. MANDEL WAS NOT
AWARE THAT HE WAS FORBIDDEN FROM APPEARING WHERE CONTRIBUTIONS (WERE)
SOLICITED FOR POLITICAL CAUSES.  I HAVE BEEN ADVISED BY MR. GEORGE
NOVACK, AN AMERICAN CITIZEN, WHO COORDINATED MR. MANDEL'S 1968 TOUR,
THAT IN FACT THE EVENT IN QUESTION WAS A COCKTAIL RECEPTION HELD AT THE
GOTHAM ART THEATRE IN NEW YORK CITY ON OCTOBER 19, 1968.  MR. MANDEL
ADDRESSED THE GATHERING ON THE EVENTS IN FRANCE DURING MAY AND JUNE. 
LATER THAT EVENING POSTERS BY FRENCH STUDENTS WERE AUCTIONED.  THE
MONEY WAS SENT TO AID THE LEGAL DEFENSE OF STUDENTS WHO HAD TAKEN PART
IN THE SPRING DEMONSTRATIONS.  MR. MANDEL DID NOT PARTICIPATE IN THE
FUND RAISING.  (SEE EX. L, OCT. 30, 1969 LETTER.)" 

THE ASSERTED NONCOMPLIANCE BY MANDEL IS THEREFORE BROADER THAN MERE
ACCEPTANCE OF MORE SPEAKING ENGAGEMENTS THAN HIS VISA APPLICATION
INDICATED. 

/6/  SEE, FOR EXAMPLE, EKIU V. UNITED STATES, 142 U.S. 651, 659
(1892); FOK YUNG YO V. UNITED STATES, 185 U.S. 296, 302 (1902); UNITED
STATES EX REL. TURNER V. WILLIAMS, 194 U.S. 279, 294 (1904); KELLER V.
UNITED STATES, 313 U.S. 138, 143-144 (1909); MAHLER V. EBY, 264 U.S.
32, 40 (1924); SHAUGHNESSY V. MEZEI, 345 U.S. 206, 210 (1953); CF.
GRAHAM V. RICHARDSON, 403 U.S. 365, 377 (1971). 

/7/  THE GOVERNMENT'S BRIEF STATES: 

"THE IMMIGRATION AND NATURALIZATION SERVICE REPORTS THE FOLLOWING
WITH RESPECT TO APPLICATIONS TO THE ATTORNEY GENERAL FOR WAIVER OF AN
ALIEN'S INELIGIBILITY FOR ADMISSION UNDER SECTION 212(A)(28):  (TABLE
OMITTED) BRIEF FOR APPELLANTS 18 N. 24.  THESE CASES, HOWEVER, ARE ONLY
THOSE THAT, AS SEC. 212(D)(3)(A) PROVIDES, COME TO THE ATTORNEY GENERAL
WITH A POSITIVE RECOMMENDATION FROM THE SECRETARY OF STATE OR THE
CONSULAR OFFICER.  THE FIGURES DO NOT INCLUDE THOSE CASES WHERE THESE
OFFICIALS HAD REFRAINED FROM MAKING A POSITIVE RECOMMENDATION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

UNDER THE CHINESE EXCLUSION CASE, 130 U.S. 581, RENDERED IN 1889,
THERE COULD BE NO DOUBT BUT THAT CONGRESS WOULD HAVE THE POWER TO
EXCLUDE ANY CLASS OF ALIENS FROM THESE SHORES.  THE ACCENT AT THE TIME
WAS ON RACE.  MR. JUSTICE FIELD, WRITING FOR THE COURT, SAID:  "IF,
THEREFORE, THE GOVERNMENT OF THE UNITED STATES, THROUGH ITS LEGISLATIVE
DEPARTMENT, CONSIDERS THE PRESENCE OF FOREIGNERS OF A DIFFERENT RACE IN
THIS COUNTRY, WHO WILL NOT ASSIMILATE WITH US, TO BE DANGEROUS TO ITS
PEACE AND SECURITY, THEIR EXCLUSION IS NOT TO BE STAYED BECAUSE AT THE
TIME THERE ARE NO ACTUAL HOSTILITIES WITH THE NATION OF WHICH THE
FOREIGNERS ARE SUBJECTS."  ID., AT 606. 

AN IDEOLOGICAL TEST, NOT A RACIAL ONE, IS USED HERE.  BUT NEITHER, IN
MY VIEW, IS PERMISSIBLE AS I HAVE INDICATED ON OTHER OCCASIONS.  /1/
YET A NARROWER QUESTION IS RAISED HERE.  UNDER THE PRESENT ACT ALIENS
WHO ADVOCATE OF TEACH "THE ECONOMIC, INTERNATIONAL, AND GOVERNMENTAL
DOCTRINES OF WORLD COMMUNISM" ARE INELIGIBLE TO RECEIVE VISAS "(EEXCEPT
AS OTHERWISE PROVIDED IN THIS ACT."  /2/  THE "EXCEPT" PROVISION IS
CONTAINED IN ANOTHER PART OF THE SAME SECTION /3/  AND STATES THAT AN
INADMISSIBLE ALIEN "MAY, AFTER APPROVAL BY THE ATTORNEY GENERAL OF A
RECOMMENDATION BY THE SECRETARY OF STATE OR BY THE CONSULAR OFFICER" BE
ADMITTED "TEMPORARILY DESPITE HIS INADMISSIBILITY." 

DR. ERNEST MANDEL, WHO IS DESCRIBED AS "AN ORTHODOX MARXIST OF THE
TROTSKYIST SCHOOL," HAS BEEN ADMITTED TO THIS COUNTRY TWICE BEFORE--
ONCE AS A WORKING JOURNALIST IN 1962 AND ONCE AS A LECTURER IN 1968. 
THE PRESENT CASE INVOLVES HIS THIRD APPLICATION, MADE IN 1969, TO
ATTEND A CONFERENCE AT STANFORD UNIVERSITY ON TECHNOLOGY AND THE THIRD
WORLD.  HE WAS ALSO INVITED TO ATTEND OTHER CONFERENCES, ONE AT MIT,
AND TO ADDRESS SEVERAL UNIVERSITIES, PRINCETON, AMHERST, THE NEW
SCHOOL, COLUMBIA, AND VASSAR.  THIS TIME THE DEPARTMENT OF JUSTICE
REFUSED TO GRANT A WAIVER RECOMMENDED BY THE STATE DEPARTMENT; AND IT
CLAIMS THAT IT NEED NOT STATE ITS REASONS, THAT THE POWER OF THE
ATTORNEY GENERAL IS UNFETTERED. 

DR. MANDEL IS NOT THE SOLE COMPLAINANT.  JOINING HIM ARE THE OTHER
APPELLEES WHO REPRESENT THE VARIOUS AUDIENCES WHICH DR. MANDEL WOULD BE
MEETING WERE A VISA TO ISSUE.  WHILE DR. MANDEL, AN ALIEN WHO SEEKS
ADMISSION, HAS NO FIRST AMENDMENT RIGHTS WHILE OUTSIDE THE NATION, THE
OTHER APPELLEES ARE ON A DIFFERENT FOOTING.  THE FIRST AMENDMENT
INVOLVES NOT ONLY THE RIGHT TO SPEAK AND PUBLISH BUT ALSO THE RIGHT TO
HEAR, TO LEARN, TO KNOW.  MARTIN V. CITY OF STRUTHERS, 319 U.S. 141,
143; STANLEY V. GEORGIA, 394 U.S. 557, 564. 

CAN THE ATTORNEY GENERAL UNDER THE BROAD DISCRETION ENTRUSTED IN HIM
DECIDE 

THAT ONE WHO MAINTAINS THAT THE EARTH IS ROUND CAN BE EXCLUDED? 

THAT NO ONE WHO BELIEVES IN THE DARWINIAN THEORY SHALL BE ADMITTED? 

THAT THOSE WHO PROMOTE A RULE OF LAW TO SETTLE INTERNATIONAL
DIFFERENCES RATHER THAN A RULE OF FORCE MAY BE BARRED? 

THAT A GENETIC BIOLOGIST WHO LECTURES ON THE WAY TO CREATE LIFE BY
ONE SEX ALONE IS BEYOND THE PALE? 

THAT AN EXPONENT OF PLATE TECTONICS CAN BE BARRED? 

THAT ONE SHOULD BE EXCLUDED WHO TAUGHT THAT JESUS WHEN HE AROSE FROM
THE SEPULCHER, WENT EAST (NOT UP) AND BECAME A TEACHER AT HEMIS
MONASTERY IN THE HIMALAYAS? 

I PUT THE ISSUE THAT BLUNTLY BECAUSE NATIONAL SECURITY IS NOT
INVOLVED.  NOR IS THE INFILTRATION OF SABOTEURS.  THE ATTORNEY GENERAL
STANDS ASTRIDE OUR INTERNATIONAL TERMINALS THAT BRING PEOPLE HERE TO
BAR THOSE WHOSE IDEAS ARE NOT ACCEPTABLE TO HIM.  EVEN ASSUMING,
ARGUENDO, THAT THOSE ON THE OUTSIDE SEEKING ADMISSION HAVE NO STANDING
TO COMPLAIN, THOSE WHO HOPE TO BENEFIT FROM THE TRAVELER'S LECTURES
DO. 

THOUGHT CONTROL IS NOT WITHIN THE COMPETENCE OF ANY BRANCH OF
GOVERNMENT.  THOSE WHO LIVE HERE MAY NEED EXPOSURE TO THE IDEAS OF
PEOPLE OF MANY FAITHS AND MANY CREEDS TO FURTHER THEIR EDUCATION.  WE
SHOULD CONSTRUE THE ACT GENEROUSLY BY THAT FIRST AMENDMENT STANDARD,
SAYING THAT ONCE THE STATE DEPARTMENT HAS CONCLUDED THAT OUR FOREIGH
RELATIONS PERMIT OR REQUIRE THE ADMISSION OF A FOREIGN TRAVELER, THE
ATTORNEY GENERAL IS LEFT ONLY PROBLEMS OF NATIONAL SECURITY,
IMPORTATION OF HEROIN, OR OTHER LIKE MATTERS WITHIN HIS COMPETENCE. 

WE SHOULD ASSUME THAT WHERE PROPAGATION OF IDEAS IS PERMISSIBLE AS
BEING WITHIN OUR CONSTITUTIONAL FRAMEWORK, THE CONGRESS DID NOT
UNDERTAKE TO MAKE THE ATTORNEY GENERAL A CENSOR.  FOR AS STATED BY
JUSTICE JACKSON IN THOMAS V. COLLINS, 323 U.S. 516, 545 (CONCURRING),
"(THE VERY PURPOSE OF THE FIRST AMENDMENT IS TO FORECLOSE PUBLIC
AUTHORITY FROM ASSUMING A GUARDIANSHIP OF THE PUBLIC MIND THROUGH
REGULATING THE PRESS, SPEECH, AND RELIGION.  IN THIS FIELD EVERY PERSON
MUST BE HIS OWN WATCHMAN FOR TRUTH, BECAUSE THE FOREFATHERS DID NOT
TRUST ANY GOVERNMENT TO SEPARATE THE TRUE FROM THE FALSE FOR US." 

IN BRANDENBURG V. OHIO, 395 U.S. 444 (WHICH OVERRULED WHITNEY V.
CALIFORNIA, 274 U.S. 357), WE HELD THAT THE FIRST AMENDMENT DOES NOT
PERMIT A STATE "TO FORBID OR PROSCRIBE ADVOCACY OF THE USE OF FORCE OR
OF LAW VIOLATION EXCEPT WHERE SUCH ADVOCACY IS DIRECTED TO INCITING OR
PRODUCING IMMINENT LAWLESS ACTION AND IS LIKELY TO INCITE OR PRODUCE
SUCH ACTION."  ID., AT 447.  THAT CASE INVOLVED PROPAGATION OF THE
VIEWS OF THE KU KLUX KLAN.  THE PRESENT CASE INVOLVES TEACHING THE
COMMUNIST CREED.  /4/  BUT, AS WE HELD IN NOTO V. UNITED STATES, 367
U.S. 290, 297-298: 

     "(THE MERE ABSTRACT TEACHING OF COMMUNIST THEORY, INCLUDING
THE

  TEACHING OF THE MORAL PROPRIETY OR EVEN MORAL NECESSITY FOR A

  RESORT TO FORCE AND VIOLENCE, IS NOT THE SAME AS PREPARING A

  GROUP FOR VIOLENT ACTION AND STEELING IT TO SUCH ACTION." 

AS A MATTER OF STATUTORY CONSTRUCTION, I CONCLUDE THAT CONGRESS
NEVER UNDERTOOK TO ENTRUST THE ATTORNEY GENERAL WITH THE DISCRETION TO
PICK AND CHOOSE AMONG THE IDEOLOGICAL OFFERINGS WHICH ALIEN LECTURERS
TENDER FROM OUR PLATFORMS, ALLOWING THOSE PALATABLE TO HIM AND
DISALLOWING OTHERS.  /5/ THE DISCRETION ENTRUSTED TO HIM CONCERNS
MATTERS COMMONLY WITHIN THE COMPETENCE OF THE DEPARTMENT OF JUSTICE--
NATIONAL SECURITY, IMPORTATION OF DRUGS, AND THE LIKE. 

I WOULD AFFIRM THE JUDGMENT OF THE THREE-JUDGE DISTRICT COURT. 

/1/  SEE HARISIADES V. SHAUGHNESSY, 342 U.S. 580, 598 (DISSENTING
OPINION); GALVAN V. PRESS, 347 U.S. 522, 533 (DISSENTING OPINION). 

/2/  SEC. 212(A)(28)(G)(V) OF THE IMMIGRATION AND NATIONALITY ACT OF
1952, 66 STAT. 185, 8 U.S.C. 1182(A)(28)(G)(V). 

/3/  SEC. 212(D)(3)(A), 8 U.S.C. 1182(D)(3)(A). 

/4/  THE COURT RECOGNIZES THE LEGITIMACY OF APPELLEES' FIRST
AMENDMENT CLAIM, ANTE, AT 762-765.  IT ARGUES, HOWEVER, THAT INASMUCH
AS THE ATTORNEY GENERAL GAVE A "FACIALLY LEGITIMATE AND BONA FIDE"
REASON TO REFUSE DR. MANDEL A WAIVER OF INELIGIBILITY, THE COURT SHOULD
NOT "LOOK BEHIND THE EXERCISE OF THAT DISCRETION, NOR TEST IT BY
BALANCING ITS JUSTIFICATION AGAINST (APPELLEES') FIRST AMENDMENT
INTERESTS.  . . . "  FIRST, SO FAR AS THE RECORD REVEALS, THERE IS
ABSOLUTELY NO SUPPORT FOR THE ATTORNEY GENERAL'S CLAIM THAT DR. MANDEL
CONSCIOUSLY ABUSED HIS VISA PRIVILEGES IN 1968.  INDEED, THE STATE
DEPARTMENT ITSELF CONCEDES THAT HE "WAS APPARENTLY NOT INFORMED (IN
1962 AND 1968) THAT A VISA WAS ISSUED ONLY AFTER OBTAINING A WAIVER OF
INELIGIBILITY AND THEREFORE MAY NOT HAVE BEEN AWARE OF THE CONDITIONS
AND LIMITATIONS ATTACHED TO THE VISA ISSUANCE."  APP. 22.  SECOND, THE
ACTIVITIES WHICH THE ATTORNEY GENERAL LABELED "FLAGRANT ABUSES" OF DR.
MANDEL'S OPPORTUNITY TO SPEAK IN THE UNITED STATES APPEAR MERELY TO
HAVE BEEN HIS SPEAKING AT MORE UNIVERSITIES THAN HIS VISA APPLICATION
INDICATED.  INDEED, HE SPOKE AT MORE THAN 30 UNIVERSITIES IN THE UNITED
STATES AND CANADA, INCLUDING HARVARD, THE UNIVERSITY OF CALIFORNIA AT
BERKELEY, SWARTHMORE, NOTRE DAME, ANTIOCH, MICHIGAN, THREE APPEARANCES
AT COLUMBIA, TWO AT THE UNIVERSITY OF PENNSYLVANIA, AND THE KEYNOTE
ADDRESS AT THE 1968 SOCIALIST SCHOLARS CONFERENCE HELD AT RUTGERS. 
APP. 25.  IT WOULD BE DIFFICULT TO INVENT A MORE TRIVIAL REASON FOR
DENYING THE ACADEMIC COMMUNITY THE CHANCE TO EXCHANGE VIEWS WITH AN
INTERNATIONLLY RESPECTED SCHOLAR. 

/5/  AS INDICATED IN S. REP. NO. 1137, 82D CONG., 2D SESS., 12, THE
DISCRETION VESTED IN THE ATTORNEY GENERAL WAS TO BE EXERCISED "FOR
EMERGENT REASONS OR FOR REASONS DEEMED STRICTLY IN THE PUBLIC
INTEREST."  IDEOLOGICAL CONTROLS ARE NOT CONGENIAL TO OUR FIRST
AMENDMENT TRADITIONS AND THEREFORE SHOULD NOT BE INFERRED. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

DR. ERNEST MANDEL, A CITIZEN OF BELGIUM, IS AN INTERNATIONALLY
FAMOUS MARXIST SCHOLAR AND JOURNALIST.  HE WAS INVITED TO OUR COUNTRY
BY A GROUP OF AMERICAN SCHOLARS WHO WISHED TO MEET HIM FOR DISCUSSION
AND DEBATE.  WITH FIRM PLANS FOR CONFERENCES, COLLOQUIA AND LECTURES,
THE AMERICAN HOSTS WERE STUNNED TO LEARN THAT MANDEL HAD BEEN REFUSED
PERMISSION TO ENTER OUR COUNTRY.  AMERICAN CONSULAR OFFICIALS HAD FOUND
MANDEL "INELIGIBLE" TO RECEIVE A VISA UNDER SECS. 212(A)(28)(D) AND
(G)(V) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 185,
WHICH BARS EVEN TEMPORARY VISITS TO THE UNITED STATES BY ALIENS WHO
"ADVOCATE THE ECONOMIC, INTERNATIONAL, AND GOVERNMENTAL DOCTRINES OF
WORLD COMMUNISM" OR "WHO WRITE OR PUBLISH . . . ANY WRITTEN OR PRINTED
MATTER . . . ADVOCATING OR TEACHING" SUCH DOCTRINES.  UNDER SEC.
212(D)(3), THE ATTORNEY GENERAL REFUSED TO WAIVE INADMISSIBILITY. 

I, TOO, AM STUNNED TO LEARN THAT A COUNTRY WITH OUR PROUD HERITAGE
HAS REFUSED DR. MANDEL TEMPORARY ADMISSION.  I AM CONVINCED THAT
AMERICANS CANNOT BE DENIED THE OPPORTUNITY TO HEAR DR. MANDEL'S VIEWS
IN PERSON BECAUSE THEIR GOVERNMENT DISAPPROVES OF HIS IDEAS. 
THEREFORE, I DISSENT FROM TODAY'S DECISION AND WOULD AFFIRM THE
JUDGMENT OF THE COURT BELOW. 

        I 

AS THE MAJORITY CORRECTLY DEMONSTRATES, IN A VARIETY OF CONTEXTS
THIS COURT HAS HELD THAT THE FIRST AMENDMENT PROTECTS THE RIGHT TO
RECEIVE INFORMATION AND IDEAS, THE FREEDOM TO HEAR AS WELL AS THE
FREEDOM TO SPEAK.  THE REASON FOR THIS IS THAT THE FIRST AMENDMENT
PROTECTS A PROCESS, IN JUSTICE BRANDEIS' WORDS, "REASON AS APPLIED
THROUGH PUBLIC DISCUSSION," WHITNEY V. CALIFORNIA, 274 U.S. 357, 375
(1927)(CONCURRING OPINION); AND THE RIGHT TO SPEAK AND HEAR-- INCLUDING
THE RIGHT TO INFORM OTHERS AND TO BE INFORMED ABOUT PUBLIC ISSUES-- ARE
INEXTRICABLY PART OF THAT PROCESS.  THE FREEDOM TO SPEAK AND THE
FREEDOM TO HEAR ARE INSEPARABLE; THEY ARE TWO SIDES OF THE SAME COIN. 
BUT THE COIN ITSELF IS THE PROCESS OF THOUGHT AND DISCUSSION.  THE
ACTIVITY OF SPEAKERS BECOMING LISTENERS AND LISTENERS BECOMING SPEAKERS
IN THE VITAL INTERCHANGE OF THOUGHT IS THE "MEANS INDISPENSABLE TO THE
DISCOVERY AND SPREAD OF POLITICAL TRUTH."  IBID.; SEE TERMINIELLO V.
CHICAGO, 337 U.S. 1, 4 (1949).  ITS PROTECTION IS "A FUNDAMENTAL
PRINCIPLE OF THE AMERICAN GOVERNMENT."  WHITNEY V. CALIFORNIA, SUPRA,
AT 375.  THE FIRST AMENDMENT MEANS THAT GOVERNMENT HAS NO POWER TO
THWART THE PROCESS OF FREE DISCUSSION, TO "ABRIDGE" THE FREEDOMS
NECESSARY TO MAKE THAT PROCESS WORK.  SEE LAMONT V. POSTMASTER GENERAL,
381 U.S. 301, 308 (1965) (BRENNAN, J., CONCURRING, WITH WHOM GOLDBERG
AND HARLAN, JJ., JOINED). 

THERE CAN BE NO DOUBT THAT BY DENYING THE AMERICAN APPELLEES ACCESS TO
DR. MANDEL, THE GOVERNMENT HAS DIRECTLY PREVENTED THE FREE INTERCHANGE
OF IDEAS GUARANTEED BY THE FIRST AMENDMENT.  /1/  IT HAS, OF COURSE,
INTERFERED WITH APPELLEES' PERSONAL RIGHTS BOTH TO HEAR MANDEL'S VIEWS
AND TO DEVELOP AND ARTICULATE THEIR OWN VIEWS BELOW RECOGNIZED, APART
FROM APPELLEES' INTERESTS, THERE IS ALSO A "GENERAL PUBLIC INTEREST IN
THE PREVENTION OF ANY STIFLING OF POLITICAL UTTERANCE."  325 F.SUPP. 
620, 632 (1971).  AND THE GOVERNMENT HAS INTERFERED WITH THIS AS WELL. 
/2/

        II 

WHAT IS THE JUSTIFICATION FOR THIS EXTRAORDINARY GOVERNMENTAL
INTERFERENCE WITH THE LIBERTY OF AMERICAN CITIZENS?  AND BY WHAT
REASONING DOES THE COURT UPHOLD MANDEL'S EXCLUSION?  IT IS ESTABLISHED
CONSTITUTIONAL DOCTRINE, AFTER ALL, THAT GOVERNMENT MAY RESTRICT FIRST
AMENDMENT RIGHTS ONLY IF THE RESTRICTION IS NECESSARY TO FURTHER A
COMPELLING GOVERNMENTAL INTEREST.  E.G., LAMONT V. POSTMASTER GENERAL,
SUPRA, AT 308; NAACP V. BUTTON, 371 U.S. 415, 438 (1963); GIBSON V.
FORIDA LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S. 539, 546 (1963);
SHELTON V. TUCKER, 364 U.S. 479 (1960). 

A. TODAY'S MAJORITY APPARENTLY HOLDS THAT MANDEL MAY BE EXCLUDED AND
AMERICANS' FIRST AMENDMENT RIGHTS RESTRICTED BECAUSE THE ATTORNEY
GENERAL HAS GIVEN A "FACIALLY LEGITIMATE AND BONA FIDE REASON" FOR
REFUSING TO WAIVE MANDEL'S VISA INELIGIBILITY.  I DO NOT UNDERSTAND THE
SOURCE OF THIS UNUSUAL STANDARD.  MERELY "LEGITIMATE" GOVERNMENTAL
INTERESTS CANNOT OVERRIDE CONSTITUTIONAL RIGHTS.  MOREOVER, THE
MAJORITY DEMANDS ONLY "FACIAL" LEGITIMACY AND GOOD FAITH, BY WHICH IT
MEANS THAT THIS COURT WILL NEVER "LOOK BEHIND" ANY REASON THE ATTORNEY
GENERAL GIVES.  NO CITATION IS GIVEN FOR THIS KIND OF UNPRECEDENTED
DEFERENCE TO THE EXECUTIVE, NOR CAN I IMAGINE (NOR AM I TOLD) THE
SLIGHTEST JUSTIFICATION FOR SUCH A RULE.  /3/ 

EVEN THE BRIEFEST PEEK BEHIND THE ATTORNEY GENERAL'S REASON FOR
REFUSING A WAIVER IN THIS CASE WOULD REVEAL THAT IT IS A SHAM.  THE
ATTORNEY GENERAL INFORMED APPELLEES' COUNSEL THAT THE WAIVER WAS
REFUSED BECAUSE MANDEL'S ACTIVITIES ON A PREVIOUS AMERICAN VIST "WENT
FAR BEYOND THE STATED PURPOSES OF HIS TRIP . . . AND REPRESENTED A
FLAGRANT ABUSE OF THE OPPORTUNITIES AFFORDED HIM TO EXPRESS HIS VIEWS
IN THIS COUNTRY."  APP. 68.  BUT, AS THE DEPARTMENT OF STATE HAD
ALREADY CONCEDED TO APPELLEES' COUNSEL, DR. MANDEL "WAS APPARENTLY NOT
INFORMED THAT (HIS PREVIOUS) VISA WAS ISSUED ONLY AFTER OBTAINING A
WAIVER OF INELIGIBILITY AND THEREFORE (MANDEL) MAY NOT HAVE BEEN AWARE
OF THE CONDITIONS AND LIMITATIONS ATTACHED TO THE (PREVIOUS) VISA
ISSUANCE."  APP. 22.  THERE IS NO BASIS IN THE PRESENT RECORD FOR
CONCLUDING THAT MANDEL'S BEHAVIOR ON HIS PREVIOUS VISIT WAS A "FLAGRANT
ABUSE"-- OR EVEN WILLFUL OR KNOWING DEPARTURE-- FROM VISA
RESTRICTIONS.  FOR GOOD REASON, THE GOVERNMENT IN THIS LITIGATION HAS
NEVER RELIED ON THE ATTORNEY GENERAL'S REASON TO JUSTIFY MANDEL'S
EXCLUSION.  IN THESE CIRCUMSTANCES, THE ATTORNEY GENERAL'S REASON
CANNOT POSSIBLY SUPPORT A DECISION FOR THE GOVERNMENT IN THIS CASE. 
BUT WITHOUT EVEN REMANDING FOR A FACTUAL HEARING TO SEE IF THERE IS ANY
SUPPORT FOR THE ATTORNEY GENERAL'S DETERMINATION, THE MAJORITY DECLARES
THAT HIS REASON IS SUFFICIENT TO OVERRIDE APPELLEES' FIRST AMENDMENT
INTERESTS. 

B. EVEN IF THE ATTORNEY GENERAL HAD GIVEN A COMPELLING REASON FOR
DECLINING TO GRANT A WAIVER UNDER SEC. 212(D)(3)(A), THIS WOULD NOT,
FOR ME, END THE CASE.  AS I UNDERSTAND THE STATUTORY SCHEME, MANDEL IS
"INELIGIBLE" FOR A VISA, AND THEREFORE INADMISSIBLE, SOLELY BECAUSE,
WITHIN THE TERMS OF SEC. 212(A)(28), HE HAS ADVOCATED COMMUNIST
DOCTRINE AND HAS PUBLISHED WRITINGS ADVOCATING THAT DOCTRINE.  THE
WAIVER QUESTION UNDER SEC. 212(D)(3)(A) IS TOTALLY SECONDARY AND
DEPENDENT, SINCE IT IS TRIGGERED HERE ONLY BY A DETERMINATION OF
(A)(28) INELIGIBILITY.  THE ATTORNEY GENERAL'S REFUSAL TO GRANT A
WAIVER DOES NOT ITSELF GENERATE A NEW STATUTORY BASIS FOR EXCLUSION; HE
HAS NO ROVING POWER TO SET NEW AD HOC STANDARDS FOR VISA
INELIGIBILITY.  RATHER, THE ATTORNEY GENERAL'S REFUSAL TO WAIVE
INELIGIBILITY SIMPLY HAS THE SAME EFFECT AS IF NO WAIVER PROVISION
EXISTED; INADMISSIBILITY STILL RESTS ON THE (A)(28) DETERMINATION. 
THUS, WHETHER OR NOT THE ATTORNEY GENERAL HAD A GOOD REASON FOR
REFUSING A WAIVER, THIS COURT, I THINK, MUST STILL FACE THE QUESTION IT
TRIES TO AVOID:  UNDER OUR CONSTITUTION, MAY MANDEL BE DECLARED
INELIGIBLE UNDER (A)(28)? 

C. ACCORDINGLY, I TURN TO CONSIDER THE CONSTITUTIONALITY OF THE SOLE
JUSTIFICATION GIVEN BY THE GOVERNMENT HERE AND BELOW FOR EXCLUDING
MANDEL-- THAT HE "ADVOCATES AND "PUBLISHES) . . . PRINTED MATTER . . .
ADVOCATING . . . DOCTRINES OF WORLD COMMUNISM" WITHIN THE TERMS OF SEC.
212(A)(28). 

STILL ADHERING TO STANDARD FIRST AMENDMENT DOCTRINE, I DO NOT SEE
HOW (A)(28) CAN POSSIBLY REPRESENT A COMPELLING GOVERNMENTAL INTEREST
THAT OVERRIDES APPELLEES' INTERESTS IN HEARING MANDEL.  /4/  UNLIKE
(A)(27) OR (A)(29), (A)(28) DOES NOT CLAIM TO EXCLUDE ALIENS WHO ARE
LIKELY TO ENGAGE IN SUBVERSIVE ACTIVITY OR WHO REPRESENT AN ACTIVE AND
PRESENT THREAT TO THE "WELFARE, SAFETY, OR SECURITY OF THE UNITED
STATES."  RATHER, (A)(28) EXCLUDES ALIENS SOLELY BECAUSE THEY HAVE
ADVOCATED COMMUNIST DOCTRINE.  OUR CASES MAKE CLEAR, HOWEVER, THAT
GOVERNMENT HAS NO LEGITIMATE INTEREST IN STOPPING THE FLOW OF IDEAS. 
IT HAS NO POWER TO RESTRICT THE MERE ADVOCACY OF COMMUNIST DOCTRINE,
DIVORCED FROM INCITEMENT TO IMMINENT LAWLESS ACTION.  NOTO V. UNITED
STATES, 367 U.S. 290, 297-298 (1961); BRANDENBURG V; OHIO, 395 U.S.
444, 447-449 (1969).  FOR THOSE WHO ARE NOT SURE THAT THEY HAVE
ATTAINED THE FINAL AND ABSOLUTE TRUTH, ALL IDEAS, EVEN THOSE FORCEFULLY
URGED, ARE A CONTRIBUTION TO THE ONGOING POLITICAL DIALOGUE.  THE FIRST
AMENDMENT REPRESENTS THE VIEW OF THE FRAMERS THAT "THE PATH OF SAFETY
LIES IN THE OPPORTUNITY TO DISCUSS FREELY SUPPOSED GRIEVANCES AND
PROPOSED REMEDIES; AND THAT THE FITTING REMEDY FOR EVIL COUNSELS IS
GOOD ONES"-- "MORE SPEECH."  WHITNEY V. CALIFORNIA, 274 U.S.,AT 375 377
(BRANDEIS, J., CONCURRING).  IF AMERICANS WANT TO HEAR ABOUT MARXIST
DOCTRINE, EVEN FROM ADVOCATES, GOVERNMENT CANNOT INTERVENE SIMPLY
BECAUSE IT DOES NOT APPROVE OF THE IDEAS.  IT CERTAINLY MAY NOT
SELECTIVELY PICK AND CHOOSE WHICH IDEAS IT WILL LET INTO THE COUNTRY. 
BUT, AS THE COURT BELOW PUT IT, SEC. 212(A)(28) IS NOTHING MORE THAN "A
MEANS OF RESTRAINING THE ENTRY OF DISFAVORED POLITICAL DOCTRINE," 325
F.SUPP.,AT 626, AND SUCH AN ENACTMENT CANNOT JUSTIFY THE ABRIDGMENT OF
APPELLEES' FIRST AMENDMENT RIGHTS. 

IN SAYING THESE THINGS, I AM MERELY REPEATING ESTABLISHED FIRST
AMENDMENT LAW.  INDEED, THIS COURT HAS ALREADY APPLIED THAT LAW IN A
CASE CONCERNING THE ENTRY OF COMMUNIST DOCTRINE FROM FOREIGN LANDS.  IN
LAMONT V. POSTMASTER GENERAL, 381 U.S. 301 (1965), THIS COURT HELD THAT
THE RIGHT OF AN AMERICAN ADDRESSEE TO RECEIVE COMMUNIST POLITICAL
PROPAGANDA FROM ABROAD COULD NOT BE FETTERED BY REQUIRING THE ADDRESSEE
TO REQUEST IN WRITING ITS DELIVERY FROM THE POST OFFICE.  SEE ID., AT
308 (BRENNAN, J., CONCURRING).  THE BURDEN IMPOSED ON THE RIGHT TO
RECEIVE INFORMATION IN OUR CASE IS FAR GREATER THAN IN LAMONT, WITH FAR
LESS JUSTIFICATION.  IN LAMONT, THE CHALLENGED LAW MERELY REGULATED THE
FLOW OF OF MAIL, AND REQUIRED THE POSTMASTER GENERAL TO FORWARD
DETAINED MAIL IMMEDIATELY UPON REQUEST BY THE ADDRESSEE.  BY CONTRAST,
THROUGH SEC. 212(A)(28), THE GOVERNMENT CLAIMS ABSOLUTE POWER TO BAR
MANDEL PERMANENTLY FROM ACADEMIC MEETINGS IN THIS COUNTRY.  MOREOVER,
IN LAMONT, THE GOVERNMENT ARGUED THAT ITS INTEREST WAS NOT TO CENSOR
CONTENT BUT RATHER TO PROTECT AMERICANS FROM RECEIVING UNWANTED MAIL. 
HERE, MANDEL'S EXCLUSION IS NOT INCIDENT TO A LEGITIMATE REGULATORY
OBJECTIVE, BUT IS BASED DIRECTLY ON THE SUBJECT MATTER OF HIS BELIEFS. 

D. THE HEART OF APPELLANTS' POSITION IN THIS CASE, AND THE BASIS FOR
THEIR DISTINGUISHING LAMONT, IS THAT THE GOVERNMENT'S POWER IS
DISTINCTIVELY BROAD AND UNREVIEWABLE BECAUSE "(THE REGULATION IN
QUESTION IS DIRECTED AT THE ADMISSION OF ALIENS."  BRIEF FOR APPELLANTS
33.  THUS, IN THE APPELLANTS' VIEW, THIS CASE IS NO DIFFERENT FROM A
LONG LINE OF CASES HOLDING THAT THE POWER TO EXCLUDE ALIENS IS LEFT
EXCLUSIVELY TO THE "POLITICAL" BRANCHES OF GOVERNMENT, CONGRESS, AND
THE EXECUTIVE. 

THESE CASES ARE NOT THE STRONGEST PRECEDENTS IN THE UNITED STATES
REPORTS, AND THE MAJORITY'S BAROQUE APPROACH REVEALS ITS RELUCTANCE TO
RELY ON THEM COMPLETELY.  THEY INCLUDE SUCH MILESTONES AS THE CHINESE
EXCLUSION CASE, 130 U.S. 581 (1889), AND FONG YUE TING V. UNITED
STATES, 149 U.S. 698 (1893), IN WHICH THIS COURT UPHELD THE
GOVERNMENT'S POWER TO EXCLUDE AND EXPEL CHINESE ALIENS FROM OUR MIDST. 

BUT NONE OF THESE OLD CASES MUST BE "RECONSIDERED" OR OVERRULED TO
STRIKE DOWN DR. MANDEL'S EXCLUSION, FOR NONE OF THEM WAS CONCERNED WITH
THE RIGHTS OF AMERICAN CITIZENS.  ALL OF THEM INVOLVED ONLY RIGHTS OF
THE EXCLUDED ALIENS THEMSELVES.  AT LEAST WHEN THE RIGHTS OF AMERICANS
ARE INVOLVED, THERE IS NO BASIS FOR CONCLUDING THAT THE POWER TO
EXCLUDE ALIENS IS ABSOLUTE.  "WHEN CONGRESS' EXERCISE OF ONE OF ITS
ENUMERATED POWERS CLASHES WITH THOSE INDIVIDUAL LIBERTIES PROTECTED BY
THE BILL OF RIGHTS, IT IS OUR 'DELICATE AND DIFFICULT TASK' TO
DETERMINE WHETHER THE RESULTING RESTRICTION ON FREEDOM CAN BE
TOLERATED."  UNITED STATES V. ROBEL, 389 U.S. 258, 264 (1967).  AS
ROBEL AND MANY OTHER CASES /5/  SHOW, ALL GOVERNMENTAL POWER-- EVEN THE
WAR POWER, THE POWER TO MAINTAIN NATIONAL SECURITY, OR THE POWER TO
CONDUCT FOREIGN AFFAIRS-- IS LIMITED BY THE BILL OF RIGHTS.  WHEN
INDIVIDUAL FREEDOMS OF AMERICANS ARE AT STAKE, WE DO NOT BLINDLY DEFER
TO BROAD CLAIMS OF THE LEGISLATIVE BRANCH OR EXECUTIVE BRANCH, BUT
RATHER WE CONSIDER THOSE CLAIMS IN LIGHT OF THE INDIVIDUAL FREEDOMS. 
THIS SHOULD BE OUR APPROACH IN THE PRESENT CASE, EVEN THOUGH THE
GOVERNMENT URGES THAT THE QUESTION OF ADMITTING ALIENS MAY INVOLVE
FOREIGN RELATIONS AND NATIONAL DEFENSE POLICIES. 

THE MAJORITY RECOGNIZES THAT THE RIGHT OF AMERICAN CITIZENS TO HEAR
MANDEL IS "IMPLICATED" IN OUR CASE.  THERE WERE NO RIGHTS OF AMERICANS
INVOLVED IN ANY OF THE OLD ALIEN EXCLUSION CASES, AND THEREFORE THEIR
BROAD COUNSEL ABOUT DEFERENCE TO THE POLITICAL BRANCHES IS
INAPPLICABLE.  SURELY A COURT THAT CAN DISTINGUISH BETWEEN PRE
INDICTMENT AND POST-INDICTMENT LINEUPS, KIRBY V. ILLINOIS, 406 U.S. 682
(1972), CAN DISTINGUISH BETWEEN OUR CASE AND CASES WHICH INVOLVE ONLY
THE RIGHTS OF ALIENS. 

I DO NOT MEAN TO SUGGEST THAT SIMPLY BECAUSE SOME AMERICANS WISH TO
HEAR AN ALIEN SPEAK, THEY CAN AUTOMATICALLY COMPEL EVEN HIS TEMPORARY
ADMISSION TO OUR COUNTRY.  GOVERNMENT MAY PROHIBIT ALIENS FROM EVEN
TEMPORARY ADMISSION IF EXCLUSION IS NECESSARY TO PROTECT A COMPELLING
GOVERNMENTAL INTEREST.  /6/  ACTUAL THREATS TO THE NATIONAL SECURITY,
PUBLIC HEALTH NEEDS, AND GENUINE REQUIREMENTS OF LAW ENFORCEMENT ARE
THE MOST APPARENT INTERESTS THAT WOULD SURELY BE COMPELLING.  /7/  BUT
IN DR. MANDEL'S CASE, THE GOVERNMENT HAS, AND CLAIMS, NO SUCH
COMPELLING INTEREST.  MANDEL'S VISIT WAS TO BE TEMPORARY.  /8/  HIS
"INELIGIBILITY" FOR A VISA WAS BASED SOLELY ON SEC. 212(A)(28).  THE
ONLY GOVERNMENTAL INTEREST EMBODIED IN THAT SECTION IS THE GOVERNMENT'S
DESIRE TO KEEP CERTAIN IDEAS OUT OF CIRCULATION IN THIS COUNTRY.  THIS
HARDLY A COMPELLING GOVERNMENTAL INTEREST.  SECTION (A)(28) MAY NOT BE
THE BASIS FOR EXCLUDING AN ALIEN WHEN AMERICANS WISH TO HEAR HIM. 
WITHOUT ANY CLAIM THERE IS NO DIFFERENCE BETWEEN EXCLUDING MANDEL
BECAUSE OF HIS IDEAS AND KEEPING HIS BOOKS OUT BECAUSE OF THEIR IDEAS. 
NEITHER IS PERMITTED.  LAMONT V. POSTMASTER GENERAL, SUPRA.

        III 

DR. MANDEL HAS WRITTEN ABOUT HIS EXCLUSION, CONCLUDING THAT "(IT
DEMONSTRATES A LACK OF CONFIDENCE" ON THE PART OF OUR GOVERNMENT "IN
THE CAPACITY OF ITS SUPPORTERS TO COMBAT MARXISM ON THE BATTLEGROUND OF
IDEAS."  HE OVSERVES THAT HE "WOULD NOT BE CARRYING ANY HIGH
EXPLOSIVES, IF I HAD COME, BUT ONLY, AS I DID BEFORE, MY REVOLUTIONARY
VIEWS WHICH ARE WELL KNOWN TO THE PUBLIC."  AND HE WRYLY NOTES THAT
"(IN THE NINETEENTH CENTURY THE BRITISH RULING CLASS, WHICH WAS SURE OF
ITSELF, PERMITTED KARL MARX TO LIVE AS AN EXILE IN ENGLAND FOR ALMOST
FORTY YEARS."  APP. 54. 

IT IS UNDISPUTED THAT DR. MANDEL'S BRIEF TRIP WOULD INVOLVE NOTHING
BUT A SERIES OF SCHOLARLY CONFERENCES AND LECTURES.  THE PROGRESS OF
KNOWLEDGE IS AN INTERNATIONAL VENTURE.  AS MANDEL'S INVITATION
DEMONSTRATES, INDIVIDUALS OF DIFFERING WORLD VIEWS HAVE LEARNED THE
WAYS OF COOPERATION WHERE GOVERNMENTS HAVE THUS FAR FAILED.  NOTHING IS
SERVED-- LEAST OF ALL OUR STANDING IN THE INTERNATIONAL COMMUNITY-- BY
MANDEL'S EXCLUSION.  IN BLOCKING HIS ADMISSION, THE GOVERNMENT HAS
DEPARTED FROM THE BASIC TRADITIONS OF OUR COUNTRY, ITS FEARLESS
ACCEPTANCE OF FREE DISCUSSION.  BY NOW DEFERRING TO THE EXECUTIVE, THIS
COURT DEPARTS FROM ITS OWN BEST ROLE AS THE GUARDIAN OF INDIVIDUAL
LIBERTY IN THE FACE OF GOVERNMENTAL OVERREACHING.  PRINCIPLES OF
JUDICIAL RESTRAINT DESIGNED TO ALLOW THE POLITICAL BRANCHES TO PROTECT
NATIONAL SECURITY HAVE NO PLACE IN THIS CASE.  DR. MANDEL SHOULD BE
PERMITTED TO MAKE HIS BRIEF VISIT.     I DISSENT. 

/1/  TWENTY YEARS AGO, THE BULLETIN OF THE ATOMIC SCIENTISTS DEVOTED
AN ENTIRE ISSUE TO THE PROBLEM OF AMERICAN VISA POLICY AND ITS EFFECT
ON THE INTERCHANGE OF IDEAS BETWEEN AMERICAN SCHOLARS AND SCIENTISTS
AND THEIR FOREIGN COUNTERPARTS.  THE GENERAL CONCLUSION OF THE EDITORS-
SUPPORTED BY PRINTED STATEMENTS OF SUCH MEN AS ALBERT EINSTEIN, HANS
BETHE, HAROLD UREY, ARTHUR COMPTON, MICHAEL POLANYI, AND RAYMON ARON--
WAS THAT AMERICAN VISA POLICY WAS HURTING THE CONTINUING ADVANCE OF
AMERICAN SCIENCE AND LEARNING, AND HARMFUL TO OUR PRESTIGE ABROAD. 
VOL. 8, NO. 7, OCT. 1952, PP. 210-217 (STATEMENT OF SPECIAL EDITOR
EDWARD SHILS).  THE DETRIMENTAL EFFECT OF AMERICAN VISA POLICY ON THE
FREE EXCHANGE OF IDEAS CONTINUES TO BE REPORTED.  SEE COMMENT, OPENING
THE FLOODGATES TO DISSIDENT ALIENS, 6 HARV.CIV.RIGHTS-CIV.LIB.L.REV. 
141, 143-149 (1970); 11 BULLETIN OF THE ATOMIC SCIENTISTS, DEC. 1955,
PP. 367-373. 

/2/  THE AVAILABILITY TO APPELLEES OF MANDEL'S BOOKS AND TAPED
LECTURES 

INASMUCH AS THE COURT TODAY HAS RULED THAT THE IMPOSITION OF THE
DEATH AVAILABILITY TO US OF BRIEFS AND EXHIBITS DOES NOT SUPPLANT THE
ESSENTIAL PLACE OF ORAL ARGUMENT IN THIS COURT'S WORK.  LENGTHY
CITATIONS FOR THIS PROPOSITION, WHICH THE MAJORITY APPARENTLY CONCEDES,
ARE UNNECESSARY.  I SIMPLY NOTE THAT IN A LETTER TO HENRIK LORENZ,
ACCEPTING AN INVITATION TO LECTURE AT THE UNIVERSITY OF LEIDEN AND TO
DISCUSS "THE RADIATION PROBLEM," ALBERT EINSTEIN OBSERVED THAT "(IN
THESE UNFINISHED THINGS, PEOPLE UNDERSTAND ONE ANOTHER WITH DIFFICULTY
UNLESS TALKING FACE TO FACE."  QUOTED IN DEVELOPMENTS IN THE LAW-- THE
NATIONAL SECURITY INTEREST AND CIVIL LIBERTIES, 85 HARV.L.REV.  1130,
1154 (1972). 

/3/  AS JUDGE FRANKEL HAS TAUGHT US, EVEN THE LIMITED REQUIREMENT OF
FACIALLY SUFFICIENT REASONS FOR GOVERNMENTAL ACTION MAY BE SIGNIFICANT
IN SOME CONTEXTS; BUT IT CAN HARDLY INSULATE THE GOVERNMENT FROM
SUBSEQUENT CHALLENGES TO THE ACTUAL GOOD FAITH AND SUFFICIENCY OF THE
REASONS.  FRANKE., BENCH WARRANTS UPON THE PROSECUTOR'S DEMAND:  A VIEW
FROM THE BENCH, 71 COL.L.REV.  403, 414 (1971). 

/4/  THE MAJORITY SUGGESTS THAT APPELLEES "CONCEDE THAT CONGRESS
COULD ENACT A BLANKET PROHIBITION AGAINST ENTRY OF ALL ALIENS FALLING
INTO THE CLASS DEFINED BY SECS. 212(A)(28)(D) AND (G)(V) AND THAT FIRST
AMENDMENT RIGHTS COULD NOT OVERRIDE THAT DECISION."  THIS WAS CERTAINLY
NOT THE VIEW OF THE COURT BELOW, WHOSE JUDGMENT THE APPELLANTS ALONE
HAVE CHANLLENGED HERE AND APPELLEES HAVE MOVED TO AFFIRM.  IT IS TRUE
THAT APPELLEES HAVE ARGUED TO THIS COURT A GROUND OF DECISION
ALTERNATIVE TO THAT ARGUED AND ADOPTED BELOW; BUT THEY HAVE HARDLY
CONCEDED THE INCORRECTNESS OF WHAT THEY SUCCESSFULLY ARGUED BELOW. 
THEY HAVE SIMPLY NOTED, AT 16-17 OF THEIR BRIEF, THAT EVEN IF THIS
COURT REJECTS THE BROAD DECISION BELOW, THERE WOULD NEVERTHELESS BE A
SEPARATE AND NARROWER BASIS FOR AFFIRMANCE.  SEE TR. OF ORAL ARG. 24,
25-26, 41-42. 

/5/  IN UNITED STATES V. ROBEL, 389 U.S. 258 (1967), THIS COURT
STRUCK DOWN A STATUTE MAKING IT A CRIMINAL OFFENSE FOR ANY EMPLOYEE OF
A "DEFENSE FACILITY" TO REMAIN A MEMBER OF THE COMMUNIST PARTY, IN
SPITE OF GOVERNMENT CLAIMS THAT THE ENACTMENT CAME WITHIN THE "WAR
POWER."  IN APTHEKER V. SECRETARY OF STATE, 378 U.S. 500 (1964), THE
GOVERNMENT UNSUCCESSFULLY SOUGHT TO DEFEND THE DENIAL OF PASSPORTS TO
AMERICAN MEMBERS OF THE COMMUNIST PARTY, IN SPITE OF CLAIMED THREATS TO
THE NATIONAL SECURITY.  IN ZEMEL V. RUSK, 381 U.S. 1 (1965), THE
PASSPORT RESTRICTION ON TRAVEL TO CUBA WAS UPHELD BECAUSE INDIVIDUAL
CONSTITUTIONAL RIGHTS WERE OVERRIDDEN BY THE "WEIGHTIEST CONSIDERATIONS
OF NATIONAL SECURITY"; BUT THE COURT REJECTED ANY ASSUMPTION "THAT
SIMPLY BECAUSE A STATUTE DEALS WITH FOREIGN RELATIONS, IT CAN GRANT THE
EXECUTIVE TOTALLY UNRESTRICTED FREEDOM OF CHOICE."  ID., AT 16, 17.  IN
SCHNEIDER V. RUSK, 377 U.S. 163 (1964), THE GOVERNMENT UNSUCCESSFULLY
ATTEMPTED TO JUSTIFY A STATUTORY INEQUALITY BETWEEN NATURALIZED AND
NATIVE-BORN CITIZENS UNDER THE FOREIGN RELATIONS POWER.  AND IN LAMONT
V. POSTMASTER GENERAL, 381 U.S. 301 (1965), ITSELF, AS MR. JUSTICE
BRENNAN NOTED, THE GOVERNMENT URGED THAT THE STATUTE WAS "JUSTIFIED BY
THE OBJECT OF AVOIDING THE SUBSIDIZATION OF PROPAGANDA OF FOREIGN
GOVERNMENTS WHICH BAR AMERICAN PROPAGANDA"; MR. JUSTICE BRENNAN
ANSWERED THAT THE GOVERNMENT MUST ACT "BY MEANS AND ON TERMS WHICH DO
NOT ENDANGER FIRST AMENDMENT RIGHTS."  ID., AT 310. 

/6/  I AGREE WITH THE MAJORITY THAT COURTS SHOULD NOT INQUIRE INTO
SUCH THINGS AS THE "PROBITY OF THE SPEAKER'S IDEAS."  NEITHER SHOULD
THE EXECUTIVE, HOWEVER.  WHERE AMERICANS WISH TO HEAR AN ALIEN, AND
THEIR CLAIM IS NOT A DEMONSTRATED SHAM, THE CRUCIAL QUESTION IS WHETHER
THE GOVERNMENT'S INTEREST IN EXCLUDING THE ALIEN IS COMPELLING. 

/7/  IT GOES WITHOUT SAYING, OF COURSE, THAT, ONCE HE HAS BEEN
ADMITTED, ANY ALIEN (LIKE ANY CITIZEN) CAN BE PUNISHED IF HE INCITES
LAWLESS ACTS OR COMMITS OTHER CRIMES. 

/8/  SUCH "NONIMMIGRANTS" ARE NOT COVERED BY QUOTAS.  C. GORDON & H.
ROSENFIELD, IMMIGRATION LAW AND PROCEDURE SEC. 2.6 (1971). 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR APPELLANTS. 
ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL MARDIAN, A. RAYMOND RANDOLPH, JR., ROBERT L. KEUCH, EDWARD S.
CHRISTENBURY, AND LEE B. ANDERSON. 

LEONARD B. BOUDIN ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE VICTOR RABINOWITZ AND DAVID ROSENBERG. 

DAVID CARLINER AND MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING AFFIRMANCE;
..END :

















MOORE V. ILLINOIS, 408 U.S. 786 


       MOORE V. ILLINOIS

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS

        NO. 69-5001.  ARGUED JANUARY 18, 1972-- DECIDED JUNE 29,

           1972 


MOORE, WHO WAS CONVICTED OF MURDER AND SENTENCED TO DEATH FOR THE
SHOTGUN SLAYING OF A BARTENDER AT A LANSING, ILLINOIS, TAVERN, CLAIMED
THAT HE WAS DENIED A FAIR TRIAL AND DUE PROCESS BECAUSE THE STATE
FAILED TO MAKE PRETRIAL DISCLOSURE OF SEVERAL ITEMS OF EVIDENCE HELPFUL
TO THE DEFENSE, FAILED TO CORRECT FALSE TESTIMONY OF ONE POWELL, AND
SUCCEEDED IN INTRODUCING INTO EVIDENCE A SHOTGUN THAT WAS NOT THE
MURDER WEAPON.  THE EVIDENCE NOT DISCLOSED CONSISTED OF A PRETRIAL
STATEMENT BY ON SANDERS THAT MOORE WAS KNOWN TO HIM AS "SLICK" AND THAT
HE HAD FIRST MET "SLICK" SOME SIX MONTHS BEFORE THE KILLING, AND
DOCUMENTS AND TESTIMONY THAT ESTABLISHED THAT MOORE WAS NOT THE MAN
KNOWN TO OTHERS IN THE AREA AS "SLICK."  POWELL TESTIFIED THAT HE
OBSERVED THE KILLING, AND THE STATE DID NOT INTRODUCE INTO EVIDENCE A
DIAGRAM THAT, MOORE CLAIMS, ILLUSTRATES THAT POWELL COULD NOT SEE THE
SHOOTING.  THE STATE SUPREME COURT REJECTED THE CLAIM THAT EVIDENCE HAD
BEEN SUPPRESSED AND FALSE EVIDENCE HAD BEEN LEFT UNCORRECTED, AND HELD
THAT THE SHOTGUN WAS PROPERLY ADMITTED INTO EVIDENCE AS A WEAPON IN
MOORE'S POSSESSION WHEN HE WAS ARRESTED AND SUITABLE FOR COMMISSION OF
THE CRIME CHARGED.  MOORE ALSO ATACKED THE IMPOSITION OF THE DEATH
PENALTY FOR NONCOMPLIANCE WITH THE STANDARDS OF WITHERSPOON V.
ILLINOIS, 391 U.S. 510.  HELD: 

1.  THE EVIDENTIARY ITEMS (OTHER THAN THE DIAGRAM) ON WHICH MOORE
BASES HIS SUPPRESSION CLAIM RELATE TO SANDERS' MISIDENTIFICATION OF
MOORE AS "SLICK" AND NOT TO THE IDENTIFICATION, BY SANDERS AND OTHERS,
OF MOORE AS THE PERSON WHO MADE INCRIMINATING STATEMENTS IN THE
PONDEROSA TAP.  THESE EVIDENTIARY ITEMS ARE NOT MATERIAL UNDER THE
STANDARD OF BRADY V. MARYLAND, 373 U.S. 83.  THE DIAGRAM DOES NOT
SUPPORT MOORE'S CONTENTION THAT THE STATE KNOWINGLY PERMITTED FALSE
TESTIMONY TO REMAIN UNCORRECTED, IN VIOLATION OF NAPUE V. ILLINOIS, 360
U.S. 264, SINCE THE DIAGRAM DOES NOT SHOW THAT IT WAS IMPOSSIBLE FOR
POWELL TO SEE THE SHOOTING.  PP. 794-798. 

2.  MOORE'S DUE PROCESS CLAIM AS THE SHOTGUN WAS NOT PREVIOUSLY
RAISED AND THEREFORE IS NOT PROPERLY BEFORE THIS COURT, AND IN ANY
EVENT THE INTRODUCTION OF THE SHOTGUN DOES NOT CONSTITUTE FEDERALLY
REVERSIBLE ERROR.  PP. 798-800. 

3.  THE SENTENCE OF DEATH MAY NOT BE IMPOSED ON MOORE.  FURMAN V.
GEORGIA, ANTE, P. 238.  P. 800. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, WHITE, AND REHNQUIST, JJ., JOINED.  MARSHALL, J.,
FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, IN WHICH
DOUGLAS, STEWART, AND POWELL, JJ., JOINED, POST, P. 800. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS STATE MURDER CASE, WITH THE DEATH PENALTY IMPOSED BY A JURY,
COMES HERE FROM THE SUPREME COURT OF ILLINOIS.  THE GRANT OF
CERTIORARI, 403 U.S. 953 (1971), WAS LIMITED TO THREE OF FOUR QUESTIONS
PRESENTED BY THE PETITION.  THESE CONCERN THE NONDISCLOSURE TO THE
DEFENSE OF ALLEGEDLY EXCULPATORY EVIDENCE POSSESSED BY THE PROSECUTION
OR THE POLICE; THE ADMISSION INTO EVIDENCE OF A SHOTGUN THAT WAS NOT
THE MURDER WEAPON; AND THE REJECTION OF EIGHT VENIREMEN WHO HAD VOICED
GENERAL OBJECTIONS TO CAPITAL PUNISHMENT.  THE FIRST AND THIRD ISSUES
RESPECTIVELY FOCUS ON THE APPLICATION OF BRADY V. MARYLAND, 373 U.S. 83
(1963), AND WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968). 

I 

PETITIONER LYMAN A. MOORE WAS CONVICTED IN 1964 OF THE FIRST-DEGREE
MURDER OF BERNARD ZITEK.  MORRE'S APPEAL TO THE SUPREME COURT OF
ILLINOIS WAS HELD IN ABEYANCE WHILE HE PETITIONED THE TRIAL COURT FOR
POST-CONVICTION RELIEF.  AFTER A HEARING IN JANUARY 1967, THAT PETITION
WAS DENIED.  MOORE'S APPEAL FROM THE DENIAL WAS CONSOLIDATED WITH HIS
APPEAL FROM THE CONVICTION AND SENTENCE.  WITH ONE JUSTICE DISSENTING
AND ANOTHER NOT PARTICIPATING, THE ILLINOIS COURT AFFIRMED THE
JUDGMENTS.  42 ILL.2D 73, 246 N.E.2D 299 (1969). 

        II 

THE HOMICIDE WAS COMMITTED ON APRIL 25, 1962.  THE FACTS ARE
IMPORTANT: 

A. THE VICTIM, ZITEK, OPERATED A BAR-RESTAURANT IN THE VILLAGE OF
LANSING, SOUTHEAST OF CHICAGO.  PATRICIA HILL WAS A WAITRESS THERE. 
DONALD O'BRIEN, CHARLES A. MAYER, AND HENLEY POWELL WERE CUSTOMERS. 

ANOTHER BAR CALLED THE PONDEROSA TAP WAS LOCATED IN DOLTON, ALSO
SOUTHEAST OF CHICAGO.  IT WAS OWNED BY ROBERT FAIR.  WILLIAM JOYCE WAS
THE BARTENDER.  ONE OF FAIR'S CUSTOMERS WAS VIRGLE SANDERS. 

A THIRD BAR KNOWN AS WANDA AND DEL'S WAS IN CHICAGO; DELBERT JONES
WAS THE OPERATOR.  WILLIAM LEON THOMPSON WAS A PATRON. 

THE WESTMORELAND COUNTRY CLUB WAS IN WILMETTE, ABOUT 50 MILES NORTH
OF LANSING.  THE MANAGER THERE WAS HERBERT ANDERSON. 

B. ON THE EVENING OF APRIL 25 ZITEK WAS TENDING BAR AT HIS PLACE IN
LANSING.  SHORTLY BEFORE 10 P.M. TWO MEN, ONE WITH A MOUSTACHE, ENTERED
AND ORDERED BEER.  ZITEK ADMONISHED THE PAIR SEVERAL TIMES FOR USING
PROFANE LANGUAGE.  THEY CONTINUED IN THEIR PROFANITY AND SHORTLY, ZITEK
EJECTED THEM.  ABOUT AN HOUR LATER A MAN CARRYING A SHOTGUN ENTERED. 
HE LAID THE WEAPON ON THE BAR AND SHOT AND KILLED ZITEK.  THE GUNMAN
RAN OUT, PURSUED BY PATRONS, AND ESCAPED IN AN AUTOMOBILE. 

C. AT THE TRIAL WAITRESS HILL POSITIVELY IDENTIFIED MOORE AS ONE OF
THE TWO MEN EJECTED FROM THE BAR AND AS THE ONE WHO RETURNED AND KILLED
ZITEK.  SHE TESTIFIED THAT SHE HAD A CLEAR AND CLOSE VIEW FROM HER
WORKING AREA AT THE BAR AND THAT SHE OBSERVED ZITEK'S EJECTION OF THE
TWO MEN AND THE SHOTGUN KILLING AN HOUR LATER. 

D. A SECOND IN-COURT IDENTIFICATION OF MOORE AS THE MAN WHO KILLED
ZITEK WAS MADE BY THE CUSTOMER POWELL.  POWELL, WHO AT THE TIME WAS
PLAYING PINOCHLE WITH OTHERS, TESTIFIED THAT HE OBSERVED MOORE ENTER
THE BAR WITH A SHOTGUN AND SHOOT ZITEK; THAT AFTER THE SHOOTING HE
PURSUED MOORE; AND THAT OUTSIDE THE BAR MOORE STOPPED MOMENTARILY,
TURNED, AND SHOUTED, "DON'T COME ANY FURTHER OR I'LL SHOOT YOU, TOO." 

E. SANDERS TESTIFIED THAT ON APRIL 27, TWO DAYS AFTER THE MURDER, HE
WAS IN THE PONDEROSA TAP AND THAT A CUSTOMER THERE, WHOM SANDERS
IDENTIFIED AS "SLICK," REMARKED TO SANDERS THAT IT WAS "OPEN SEASON ON
BARTENDERS" AND THAT HE HAD SHOT ONE IN LANSING.  AT THE TRIAL SANDERS
IDENTIFIED MOORE AS THE MAN WHO WAS IN THE PONDEROSA TAP ON APRIL 27. 
MOORE WAS WITH ANOTHER MAN WHO HAD A MOUSTACHE.  THE TWO ASKED FOR A
RIDE TO HARVEY, ILLINOIS.  THE OWNER, FAIR, AGREED TO GIVE THEM A
RIDE. 

F. FAIR TESTIFIED THAT MOORE WAS ONE OF THE TWO MEN WHO REQUESTED
AND WERE GIVEN THE RIDE; THAT DURING THE JOURNEY ONE OF THEM WAS
REFERRED TO AS "BARBEE"; AND THAT ONE SAID "SOMETHING LIKE, 'WELL, IF
WE HADN'T HAD THAT TROUBLE WITH THE BARTENDER IN LANSING, WE'D HAVE
BEEN ALL RIGHT.'" 

G. THE PONDEROSA BARTENDER, JOYCE, TESTIFIED THAT SANDERS AND FAIR
WERE IN THAT TAVERN ON APRIL 27; THAT MOORE WAS THERE AT THE SAME TIME;
AND THAT HE ARRANGED WITH FAIR FOR FAIR TO GIVE MOORE AND HIS COMPANION
A RIDE. 

IT IS THUS APPARENT THAT THERE WERE POSITIVE IN-COURT
IDENTIFICATIONS OF MOORE AS THE SLAYER BY THE WAITRESS HILL AND BY THE
CUSTOMER POWELL, AND THAT THERE WERE IN-COURT IDENTIFICATIONS OF MOORE
AS HAVING BEEN PRESENT AT THE BAR IN DOLTON TWO DAYS LATER BY SANDERS,
BY FAIR, AND BY JOYCE. 

H. SIX MONTHS AFTER THE SLAYING, IN THE EARLY MORNING HOURS OF
OCTOBER 31, 1962, A CHICAGO POLICE OFFICER WAS SHOT AT FROM A 1957 FORD
AUTOMOBILE.  TWO MEN FLED THE SCENE.  THE POLICE "STAKED OUT" THE CAR,
AND SEVERAL HOURS LATER MOORE AND A MOUSTACHED MAN, LATER IDENTIFIED AS
JERRY BARBEE, WERE ARRESTED WHEN THEY APPROACHED AND ENTERED THE
VEHICLE.  THE AUTOMOBILE PROVED BE OWNED BY BARBEE.  A FULLY LOADED
SAWED-OFF 16-GUAGE SHOTGUN WAS IN THE CAR.  /1/  THE SHOTGUN WAS
INTRODUCED IN EVIDENCE AT MOORE'S TRIAL.  /2/  THE STATE CONCEDED THAT
THE GUN SO INTRODUCED WAS NOT THE MURDER WEAPON, AND THAT THE STATE'S
BALLISTICS TECHNICIAN, IF CALLED, WOULD TESTIFY THAT THE WADDINGS TAKEN
FROM ZITEK'S BODY CAME, IN HIS OPINION, FOR A 12-GAUGE SHOTGUN SHELL. 

I. THE DEFENSE CALLED MANAGER ANDERSON OF THE WESTMORELAND COUNTRY
CLUB AS A WITNESS.  HE TESTIFIED THAT MOORE HAD BEEN HIRED AS A WAITER
THERE ON APRIL 24 (THE DAY BEFORE THE MURDER); THAT THE CLUB RECORDS
INDICATED THERE WAS A SPECIAL PARTY AT THE CLUB ON THE EVENING O APRIL
25; AND THAT MOORE WAS PAID FOR WORKING UNTIL SOMETIME BETWEEN 10 P.M.
AND MIDNIGHT.  THE CLUB'S BARTENDER TESTIFIED TO THE SAME EFFECT.  EACH
OF THESE WITNESSES NEVERTHELESS ADMITTED THAT HE COULD NOT REMEMBER
SEEING MOORE AT THE CLUB THAT NIGHT, BUT SAID THAT HE WOULD HAVE KNOWN
IF HE HAD BEEN ABSENT FOR ANY SUBSTANTIAL PERIOD OF TIME.  THE CLUB
RECORDS ALSO INDICATED THAT MOORE WORKED AT THE CLUB THE AFTERNOON OF
APRIL 27, WHEN, ACCORDING TO THE TESTIMONY SANDERS, FAIR, AND JOYCE,
MOORE WAS AT THE PONDEROSA TAP IN DOLTON.  /3/ 

J. O'BRIEN, A CUSTOMER AT ZITEK'S, TESTIFIED FOR THE DEFENSE THAT HE
OBSERVED ZITEK EJECT TWO MEN THE EVENING OF THE 25TH, AND THAT MOORE
WAS NOT ONE OF THEM.  ALTHOUGH HE WAS IN THE RESTAURANT AT THE TIME OF
THE HOMICIDE, HE DID NOT SEE THE PERSON WHO SHOT ZITEK.  A POLICE
OFFICER TESTIFIED THAT IN HIS OPINION O'BRIEN WAS DRUNK AT THE TIME. 

        III 

PRIOR TO THE TRIAL, THE DEFENSE MOVED FOR DISCLOSURE OF ALL WRITTEN
STATEMENTS TAKEN BY THE POLICE FROM ANY WITNESS.  THE STATE AGREED TO
FURNISH EXISTING STATEMENTS OF PROSECUTION WITNESSES.  AT THE POST
CONVICTION HEARING, MOORE ARGUED, AND THE CLAIM IS PRESENTED HERE, THAT
HE WAS DENIED A FAIR TRIAL BECAUSE SIX ITEMS OF EVIDENCE, UNKNOWN TO
HIM AT THE TIME OF THE TRIAL, WERE NOT PRODUCED AND, IN FACT, WERE
SUPPRESSED BY THE STATE: 

A. ON APRIL 30, 1962, SANDERS GAVE A STATEMENT TO THE POLICE THAT HE
HAD MET THE MAN "SLICK" FOR THE FIRST TIME "ABOUT SIX MONTHS AGO" IN
WANDA AND DEL'S TAVERN.  TESTIMONY AT THE POST-CONVICTION HEARING BY
LIEUTENANT TURBIN OF THE LANSING POLICE DEPARTMENT REVEALED THAT AT THE
TIME OF TRIAL THE POLICE POSSESSED AN FBI REPORT THAT MOORE WAS IN
LEAVENWORTH PENITENTIARY FROM 1957 TO MARCH 4, 1962.  THAT REPORT THUS
PROVED THAT SANDERS COULD NOT HAVE MET MOORE AT WANDA AND DEL'S IN
NOVEMBER 1961.  THE DEFENSE WAS NOT GIVEN A COPY OF THE STATEMENT MADE
BY SANDERS.  THE PROSECUTING ATTORNEY ASSERTED AT THE POST-CONVICTION
HEARING THAT HE DID NOT RECALL HAVING SEEN THE STATEMENT BEFORE OR
DURING THE TRIAL. 

B. ON THE DAY SANDERS GAVE HIS STATMENT, THAT IS, ON APRIL 30, THE
POLICE RAIDED WANDA AND DEL'S LOOKING FOR "SLICK."  "SLICK" WAS NOT
THERE, BUT JONES, THE TAVERN'S OPERATOR, SAID THAT HE COULD IDENTIFY
"SLICK."  AFTER MOORE WAS ARRESTED, JONES WAS NOT ASKED BY THE POLICE
WHETHER MOORE WAS "SLICK."  THE DEFENSE WAS NOT ADVISED OF THE RAID
UNTIL AFTER THE TRIAL.  AT THE POST-CONVICTION HEARING JONES TESTIFIED
THAT MOORE WAS NOT "SLICK."  HIS TESTIMONY, HOWEVER, WAS STRICKEN ON
THE GROUND THAT IT PERTAINED TO INNOCENCE OR GUILT AND WAS NOT
ADMISSIBLE UPON COLLATERAL REVIEW. 

C. AFTER THE RAID ON WANDA AND DEL'S, THE POLICE SECURED FROM THEIR
FILES A PICTURE OF JAMES E. "SLICK" WATTS AND ASSIGNED LIEUTENANT
TURBIN THE TASK OF FINDING WATTS.  HIS SEARCH WAS UNSUCCESSFUL.  MOORE
ASSERTS THAT THE ATTEMPT TO FIND WATTS WAS NOT MADE KNOWN TO THE
DEFENSE UNTIL CROSS-EXAMINATION OF THE LANSING POLICE CHIEF AT THE POST
CONVICTION HEARING. 

D. AFTER MOORE WAS ARRESTED ON OCTOBER 31, HE WAS PHOTOGRAPHED BY
THE POLICE.  THE PHOTOGRAPH WAS SHOWN TO WILLIAM LEON THOMPSON, THE
PATRON OF WANDA AND DEL'S.  THOMPSON TESTIFIED AT THE POST-CONVICTION
HEARING THAT HE TOLD LIEUTENANT TURBIN THT THE PICTURE "DIDN'T, TO THE
BEST OF MY KNOWLEDGE, RESEMBLE THE MAN THAT I KNEW" AS "SLICK."  HE
IDENTIFIED A PICTURE OF WATTS AS "THE SLICK I KNOW."  DEFENSE COUNSEL
TESTIFIED THAT THROUGH THE COURSE OF THE TRIAL NEITHER THE POLICE NOR
THE PROSECUTOR ADVISED THEM ABOUT THOMPSON AND HIS DISCLAIMER. 

E. AT THE START OF THE TRIAL SANDERS OBSERVED MOORE FOR THE FIRST
TIME SINCE THE ALLEGED BRAGGING INCIDENT AT THE PONDEROSA TAP.  SANDERS
REMARKED TO THE PRESECUTING ATTORNEY AND TO POLICE OFFICERS WHO
ACCOMPANIED HIM INTO THE COURTROOM THAT THE PERSON HE KNEW AS "SLICK"
WAS ABOUT 30-40 POUNDS HEAVIER THAN MOORE AND DID NOT WEAR GLASSES. 
ONE OF THE OFFICERS RESPONDED, "WELL, YOU KNOW HOW THE JAILHOUSE BEANS
ARE."  MOORE CONTENDS THAT HE AND DEFENSE COUNSEL WERE NOT ADVISED OF
THIS REMARK OF SANDERS UNTIL AFTER THE TRIAL HAD CONCLUDED. 

F. MAYER, ONE OF THE CARD PLAYERS AT ZITEK'S AT THE TIME OF THE
MURDER, GAVE THE POLICE A WRITTEN STATEMENT.  ON THE BACK OF THE
STATEMENT OFFICER KOPPITZ DREW A SKETCH OF THE SEATING ARRANGEMENT AT
THE CARD TABLE.  THE DIAGRAM SHOWS THAT THE CORNERS OF THE TABLE
POINTED NORTH, SOUTH, EAST, AND WEST.  CARDPLAYER POWELL WAS PLACED ON
THE SOUTHWEST SIDE.  THE BAR WAS ABOUT 10 FEET NORTH OF THE TABLE.  THE
DOOR WAS TO THE SOUTHWEST.  MOORE ARGUES THAT THE DIAGRAM IS
EXCULPATORY AND CONTRADICTS POWELL'S TESTIMONY THAT HE OBSERVED THE
SHOOTING.  DEFENSE COUNSEL TESTIFIED THAT THEY WERE NOT SHOWN THE
DIAGRAM DURING THE TRIAL. 

MOORE ARGUES, AS TO THE FIRST FIVE ITEMS, THAT THE STATE DID NOT
COMPLY WITH THE GENERAL REQUEST BY THE DEFENSE FOR ALL WRITTEN
STATEMENTS GIVEN BY PROSECUTION WITNESSES; THAT THE STATE FAILED TO
PRODUCE THE PRETRIAL STATEMENT OF SANDERS AND THE OTHER EVIDENCE
CONTRADICTING SANDERS' IDENTIFICATION OF MOORE AS "SLICK"; AND THAT THE
EVIDENCE NOT PRODUCED WAS MATERIAL AND WOULD HAVE BEEN HELPFUL TO HIS
DEFENSE. 

THE ILLINOIS COURT HELD THAT THE STATE HAD NOT SUPPRESSED MATERIAL
EVIDENCE FAVORABLE TO MOORE, THAT THE RECORD SHOWS THAT THE PROSECUTION
PRESENTED ITS ENTIRE FILE TO DEFENSE COUNSEL, AND THAT NO FURTHER
REQUEST FOR DISCLOSURE WAS MADE.  42 ILL.2D, AT 80-81, 246 N.E.2D, AT
304.  MOORE SUBMITS HERE THE ALTERNATIVE CLAIM THAT A SPECIFIC REQUEST
IS NOT AN "INDISPENSABLE PREREQUISITE" FOR THE DISCLOSURE OF
EXONERATING EVIDENCE BY THE STATE AND THAT THE DEFENSE COULD NOT BE
EXPECTED TO MAKE A REQUEST FOR SPECIFIC EVIDENCE THAT IT DID NOT KNOW
WAS IN EXISTENCE. 

IN BRADY V. MARYLAND, 373 U.S. 83 (1963), THE PETITIONER AND A
COMPANION WERE FOUND GUILTY BY A JURY OF FIRST-DEGREE MURDER AND WERE
SENTENCED TO DEATH.  IN HIS SUMMATION TO THE JURY BRADY'S COUNSEL
CONCEDED THAT BRADY WAS GUILTY, BUT ARGUED THAT THE JURY SHOULD RETURN
ITS VERDICT "WITHOUT CAPITAL PUNISHMENT."  PRIOR TO THE TRIAL, COUNSEL
HAD REQUESTED THAT THE PROSECUTION ALLOW HIM TO EXAMINE THE
CODEFENDANT'S EXTRA-JUDICIAL STATEMENTS.  SOME OF THESE WERE PRODUCED,
BUT ANOTHER, IN WHICH THE CODEFENDANT ADMITTED THE ACTUAL HOMICIDE, WAS
WITHHELD AND DID NOT COME TO BRADY'S NOTICE UNTIL AFTER HIS
CONVICTION.  IN A POST-CONVICTION PROCEEDING, THE MARYLAND COURT OF
APPEALS HELD THAT THIS DENIED BRADY DUE PROCESS OF LAW, AND REMANDED
THE CASE FOR RETRIAL ON THE ISSUE OF PUNISHMENT.  THIS COURT AFFIRMED. 
IT HELD "THAT THE SUPPRESSION BY THE PROSECUTION OF EVIDENCE FAVORABLE
TO AN ACCUSED UPON REQUEST VIOLATES DUE PROCESS WHERE THE EVIDENCE IS
MATERIAL EITHER TO GUILT OR TO PUNISHMENT, IRRESPECTIVE OF THE GOOD
FAITH OR BAD FAITH OF THE PROSECUTION."  373 U.S.,AT 87. 

THE HEART OF THE HOLDING IN BRADY IS THE PROSECUTION'S SUPPRESSION
OF EVIDENCE, IN THE FACE OF A DEFENSE PRODUCTION REQUEST, WHERE THE
EVIDENCE IS FAVORABLE TO THE ACCUSED AND IS MATERIAL EITHER TO GUILT OR
TO PUNISHMENT.  IMPORTANT, THEN, ARE (A) SUPPRESSION BY THE PROSECUTION
AFTER A REQUEST BY THE DEFENSE, (B) THE EVIDENCE'S FAVORABLE CHARACTER
FOR THE DEFENSE, AND (C) THE MATERIALITY OF THE EVIDENCE.  THESE ARE
THE STANDARDS BY WHICH THE PROSECUTION'S CONDUCT IN MOORE'S CASE IS TO
BE MEASURED. 

MOORE'S COUNSEL ASKED SEVERAL PROSECUTION WITNESSES IF THEY HAD
GIVEN STATEMENTS TO THE POLICE.  EACH WITNESS (HILL, POWELL, FAIR) WHO
HAD GIVEN A STATEMENT ADMITTED DOING SO AND THE STATEMENT WAS
IMMEDIATELY TENDERED.  THE SAME INQUIRY WAS NOT MADE OF WITNESS
SANDERS.  HE WAS THE ONLY STATE WITNESS WHO WAS NOT ASKED THE
QUESTION.  AT THE POST-CONVICTION HEARING THE INQUIRY WAS MADE. 
SANDERS ADMITTED MAKING A STATEMENT TO THE POLICE AND THE STATEMENT WAS
TENDERED.     THE RECORD DISCLOSES, AS THE ILLINOIS COURT STATES, 42
ILL.2D, AT 80, 246 N.E.2D, AT 304, THAT THE PROSECUTOR AT THE TRIAL
SUBMITTED HIS ENTIRE FILE TO THE DEFENSE.  THE PROSECUTOR, HOWEVER, HAS
NO RECOLLECTION THAT SANDERS' STATEMENT WAS IN THE FILE.  THE
STATEMENT, THEREFORE, EITHER WAS IN THAT FILE AND NOT NOTED BY THE
DEFENSE OR IT WAS NOT IN THE POSSESSION OF THE PROSECUTION AT THE
TRIAL.     WE KNOW OF NO CONSTITUTIONAL REQUIREMENT THAT THE
PROSECUTION MAKE A COMPLETE AND DETAILED ACCOUNTING TO THE DEFENSE OF
ALL POLICE INVESTIGATORY WORK ON A CASE.  HERE, THE ELUSIVE "SLICK" WAS
AN EARLY LEAD THE POLICE ABANDONED WHEN EYEWITNESSES TO THE KILLING AND
WITNESSES TO MOORE'S PRESENCE AT THE PONDEROSA WERE FOUND. 
UNQUESTIONABLY, AS THE STATE NOW CONCEDES, /4/  SANDERS WAS IN ERROR
WHEN HE INDICATED TO THE POLICE THAT HE MET MOORE AT WANDA AND DEL'S
ABOUT SIX MONTHS PRIOR TO APRIL 30, 1962.  MOORE'S INCARCERATION AT
LEAVENWORTH UNTIL MARCH SHOWS THAT CONCLUSION TO HAVE BEEN AN INSTANCE
OF MISTAKEN IDENTITY.  BUT THE MISTAKE WAS AS TO THE IDENTIFICATION OF
MOORE AS "SLICK," NOT AS TO THE PRESENCE OF MOORE AT THE PONDEROSA TAP
ON APRIL 27.  /5/  "SANDERS' TESTIMONY TO THE EFFECT THAT IT WAS MOORE
HE SPOKE WITH AT THE PONDEROSA TAP IN ITSELF IS NOT SIGNIFICANTLY, IF
AT ALL, IMPEACHED.  INDEED, IT IS BUTTRESSED BY THE TESTIMONY OF
BARTENDER JOYCE AND OPERATOR FAIR, BOTH OF WHOM ELABORATED THE INCIDENT
BY THEIR DESCRIPTION OF THE MAN, AND BY MOORE'S REQUEST FOR A RIDE TO
HARVEY, ILLINOIS, FAIR'S PROVIDING THAT RIDE, AND FAIR'S HEARING, ON
THAT TRIP, THE REFERENCE TO ONE OF THE MEN AS 'BARBEE,'" AND A SECOND
REFERENCE TO TROUBLE WITH A BARTENDER IN LANSING. 

THE OTHER FOUR OF THE FIRST FIVE ITEMS-- THAT JONES TOLD POLICE HE
COULD IDENTIFY "SLICK" AND SUBSEQUENTLY TESTIFIED THAT MOORE WAS NOT
"SLICK"; THAT THE POLICE HAD A PICTURE OF WATTS AND ASSIGNED THE
LIEUTENANT, UNSUCCESSFULLY, TO FIND WATTS; THAT THOMPSON HAD BEEN SHOWN
A PICTURE OF MOORE AND TOLD THE POLICE THAT MOORE WAS NOT "SLICK"; AND
THAT ON THE DAY OF THE TRIAL SANDERS REMARKED THAT THE MAN HE KNEW AS
"SLICK" LOOKED HEAVIER THAN MOORE-- ARE IN EXACTLY THE SAME CATEGORY. 
THEY ALL RELATE TO "SLICK," NOT MOORE, AND QUITE NATURALLY GO OFF ON
SANDERS' INITIAL MISIDENTIFICATION OF "SLICK" WITH MOORE. 

NONE OF THE FIVE ITEMS SERVES TO IMPEACH IN ANY WAY THE POSITIVE
IDENTIFICATION BY HILL AND BY POWELL OF MOORE AS ZITEK'S KILLER, OR THE
TESTIMONY OF FAIR AND JOYCE THAT MOORE WAS AT THE PONDEROSA TAP ON
APRIL 27, OR THE TESTIMONY OF FAIR THAT THE MOUSTACHED BARBEE WAS
ACCOMPANYING MOORE AT THAT TIME, AND THAT ONE OF THE TWO MEN MADE THE
ADDITIONAL AND UNDISPUTED ADMISSION ON THE RIDE TO HARVEY.  WE
CONCLUDE, IN THE LIGHT OF ALL THE EVIDENCE, THAT SANDERS'
MISIDENTIFICATION OF MOORE AS SLICK WAS NOT MATERIAL TO THE ISSUE OF
GUILT. 

THE REMAINING CLAIM OF SUPPRESSION RELATES TO THE DIAGRAM ON THE
BACK OF MAYER'S STATEMENT TO THE POLICE.  /6/ MOORE CONTENDS THAT THE
DIAGRAM SHOWS THAT POWELL WAS SEATED WITH HIS BACK TO THE ENTRANCE TO
ZITEK'S AND, THUS, NECESSARILY CONTRADICTS HIS TESTIMONY THAT HE WAS
LOOKING TOWARD THE ENTRANCE AS HE SAT AT THE CARD TABLE, AND THAT THE
STATE KNOWINGLY PERMITTED FALSE TESTIMONY TO REMAIN UNCORRECTED, IN
VIOLATION OF NAPUE V. ILLINOIS, 360 U.S. 264 (1959). 

IN NAPUE THE PRINCIPAL PROSECUTION WITNESS AT NAPUE'S MURDER TRIAL
WAS AN ACCOMPLICE THEN SERVING A SENTENCE FOR THE CRIME.  HE TESTIFIED,
IN RESPONSE TO AN INQUIRY BY THE PROSECUTOR, THAT HE HAD RECEIVED NO
PROMISE OF CONSIDERATION IN RETURN FOR HIS TESTIMONY.  IN FACT, THE
PROSECUTOR HAD PROMISED HIM CONSIDERATION, BUT HE DID NOTHING TO
CORRECT THE WITNESS' FALSE TESTIMONY.  THIS COURT HELD THAT THE FAILURE
OF THE PROSECUTOR TO CORRECT THE TESTIMONY, WHICH HE KNEW TO BE FALSE,
DENIED NAPUE DUE PROCESS OF LAW, AND THAT THIS WAS SO EVEN THOUGH THE
FALSE TESTIMONY WENT ONLY TO THE CREDIBILITY OF THE WITNESS.  SEE ALSO
MILLER V. PATE, 386 U.S. 1 (1967), AND ALCORTA V. TEXAS, 355 U.S. 28
(1957). 

WE ARE NOT PERSUADED THAT THE DIAGRAM SHOWS THAT POWELL'S TESTIMONY
WAS FALSE.  THE OFFICER WHO DREW THE DIAGRAM TESTIFIED AT THE POST
CONVICTION HEARING THAT IT DID NOT INDICATE THE DIRECTION IN WHICH
POWELL WAS FACING OR LOOKING AT THE TIME OF THE SHOOTING.  POWELL
TESTIFIED THAT HIS POSITION AT THE TABLE GAVE HIM A VIEW OF THE
BARTENDER; THAT AT THE MOMENT HE COULD NOT BID IN THE PINOCHLE GAME AND
HAD LAID HIS HAND DOWN AND WAS LOOKING TOWARD THE DOOR WHEN MOORE
WALKED IN.  THERE IS NOTHING IN THE DIAGRAM TO INDICATE THAT POWELL WAS
LOOKING IN ANOTHER DIRECTION OR THAT IT WAS IMPOSSIBLE FOR HIM TO SEE
THE NEARBY DOOR FROM HIS SEAT AT THE CARD TABLE.  FURTHERMORE, AFTER
THE SHOOTING HE PURSUED MOORE BUT STOPPED WHEN THE MAN WARNED HIM THAT
HE, TOO, MIGHT BE SHOT. 

IN SUMMARY, THE BACKGROUND PRESENCE OF THE ELUSIVE "SLICK," WHILE
SOMEWHAT CONFUSING, IS AT MOST AN INSIGNIFICANT FACTOR.  THE ATTEMPT TO
IDENTIFY MOORE AS "SLICK" ENCOUNTERED DIFFICULTY, BUT NOTHING SERVED TO
DESTROY THE TWO-WITNESS IDENTIFICATION OF MOORE AS PRESENT AT THE
PONDEROSA TAP, THE TWO-WITNESS IDENTIFICATION OF MOORE AS ONE OF THE
MEN WHO REQUESTED AND OBTAINED A RIDE FROM THE PONDEROSA IN DOLTON TO
HARVEY, ILLINOIS, AND FAIR'S TESTIMONY AS TO THE ADMISSION MADE ON THAT
RIDE. 

WE ADHERE TO THE PRINCIPLES OF BRADY AND NAPUE, BUT HOLD THAT THE
PRESENT RECORD EMBRACES NO VIOLATION OF THOSE PRINCIPLES. 

        IV 

THE 16-GAUGE SHOTGUN WAS ADMITTED INTO EVIDENCE AT THE TRIAL OVER
THE OBJECTION OF THE DEFENSE THAT IT WAS NOT THE MURDER WEAPON, THAT IT
HAD NO CONNECTION WITH THE CRIME CHARGED, AND THAT IT WAS INADMISSIBLE
UNDER ILLINOIS LAW.  /7/  DURING HIS CLOSING ARGUMENT TO THE JURY, THE
PROSECUTING ATTORNEY STATED THAT THE 16-GAUGE SHOTGUN WAS NOT USED TO
KILL ZITEK, /8/  BUT THAT MOORE AND HIS COMPANION, BARBEE, WERE "THE
KIND OF PEOPLE THAT USE SHOTGUNS."  /9/ 

THE SUPREME COURT OF ILLINOIS HELD THAT THE SHOTGUN WAS PROPERLY
ADMITTED INTO EVIDENCE AS A WEAPON IN MOORE'S POSSESSION AT THE TIME OF
HIS ARREST, AND WAS A WEAPON "SUITABLE FOR THE COMMISSION OF THE CRIME
CHARGED . . . EVEN THOUGH THERE IS NO SHOWING THAT IT WAS THE ACTUAL
WEAPON USED."  42 ILL.2D, AT 78, 246 N.E.2D, AT 303.  MOORE CLAIMS THAT
THE GUN'S INTRODUCTION DENIED HIM DUE PROCESS. 

OF COURSE, THE ISSUE WHETHER THE SHOTGUN WAS PROPERLY ADMITTED INTO
EVIDENCE UNDER ILLINOIS LAW IS NOT SUBJECT TO REVIEW HERE.  THE DUE
PROCESS CLAIM, HOWEVER, APPEARS TO BE RAISED FOR THE FIRST TIME BEFORE
US.  THERE IS NO CLAIM BY MOORE, AND THERE IS NOTHING IN THE RECORD TO
DISCLOSE, THAT DUE PROCESS WAS ARGUED IN THE STATE COURTS.  WE COULD
CONCLUDE, THEREFORE, THAT THE ISSUE IS NOT ONE PROPERLY PRESENTED FOR
REVIEW. 

IN ANY EVENT, WE ARE UNABLE TO CONCLUDE THAT THE SHOTGUN'S
INTRODUCTION DEPRIVED MOORE OF THE DUE PROCESS OF LAW GUARANTEED HIM BY
THE FOURTEENTH AMENDMENT.  THE 16-GAUGE SHOTGUN, FOUND IN THE CAR, WAS
IN THE CONSTRUCTIVE POSSESSION OF BOTH MOORE AND BARBEE WHEN THEY WERE
ARRESTED AFTER THE SHOOTING INCIDENT ON OCTOBER 31.  THERE IS
SUBSTANTIAL OTHER EVIDENCE IN THE RECORD THAT A SHOTGUN WAS USED TO
KILL ZITEK, AND THAT HE SUFFERED THE WOUNDS ONE WOULD EXPECT FROM A
SHOTGUN FIRED AT CLOSE RANGE.  THE TESTIMONY AS TO THE MURDER ITSELF,
WITH ALL THE DETAILS AS TO THE SHOTGUN WOUNDS, IS SUCH THAT WE CANNOT
SAY THAT THE PRESENTATION OF THE SHOTGUN WAS SO IRRELEVANT OR SO
INFLAMMATORY THAT MOORE WAS DENIED A FAIR TRIAL.  THE CASE IS NOT
FEDERALLY REVERSIBLE ON THIS GROUND. 

        V 

INASMUCH AS THE COURT TODAY AS RULED THAT THE IMPOSITION OF THE
DEATH PENALTY UNDER STATUTES SUCH AS THOSE OF ILLINOIS IS VIOLATIVE OF
THE EIGHTH AND FOURTEENTH AMENDMENTS, FURMAN V. GEORGIA, ANTE, P. 238,
IT IS UNNECESSARY FOR US TO CONSIDER THE CLAIM OF NONCOMPLIANCE WITH
THE WITHERSPOON STANDARDS.  IN WITHERSPOON, 391 U.S.,AT 523 IN N. 21,
THE COURT STATED SPECIFICALLY "NOR, FINALLY, DOES TODAY'S HOLDING
RENDER INVALID THE CONVICTION, AS OPPOSED TO THE SENTENCE, IN THIS OR
ANY OTHER CASE" (EMPHASIS IN ORIGINAL).  THE SENTENCE OF DEATH,
HOWEVER, MAY NOT NOW BE IMPOSED. 

THE JUDGMENT, INSOFAR AS IT IMPOSES THE DEATH SENTENCE, IS REVERSED,
FURMAN V. GEORGIA, SUPRA, AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS. 

/1/  THIS EARLY MORNING INCIDENT WAS RECOUNTED IN AN EARLIER TRIAL
OF MOORE AND BARBEE FOR AN ARMED ROBBERY AT HARVEY, ILLINOIS, ON JULY
27, 1962.  PEOPLE V. MOORE, 35 ILL.2D 399, 401-402, 220 N.E.2D 443, 444
445 (1966), CERT. DENIED, 389 U.S. 861 (1967). 

/2/  A REVOLVER FOUND AT MOORE'S FEET AT THE TIME OF HIS ARREST AND
A SHOULDER HOLSTER THEN ON HIS PERSON WERE RULED INADMISSIBLE. 

/3/  A LIKE ALIBI DEFENSE WAS SUBMITTED AT THE EARLIER ARMED ROBBERY
TRIAL OF MOORE AND BARBEE.  PEOPLE V. MOORE, 35 ILL.2D, AT 406, 220
N.E.2D, AT 447. 

/4/  BRIEF FOR RESPONDENT 4; TR. OF ORAL ARG. 28. 

/5/  THE DISSENT OBSERVES, POST, AT 804, "WHEN CONFRONTED WITH THIS
FACT (MOORE'S IMPRISONMENT AT LEAVENWORTH), SANDERS INDICATED THAT IT
WAS IMPOSSIBLE THAT PETITIONER (MOORE) WAS THE MAN WITH WHOM HE HAD
SPOKEN IN THE PONDEROSA TAVERN."  THIS IS A MISREADING OF SANDERS'
TESTIMONY.  THE QUESTION AND SANDERS' ANSWER WERE: 

"Q.  AND DID YOU TELL ME AND ALSO LATER ON, DID YOU TELL THE
POLICEMAN FROM THE STATE'S ATTORNEY'S OFFICE THAT IF YOU HAD KNOWN THAT
THIS FELLOW, LYMAN MOORE, WAS IN THE FEDERAL PENITENTIARY UNTIL MARCH
4, 1962, YOU WOULD DEFINITELY NOT HAVE IDENTIFIED HIM AS BEING SLICK
THAT YOU KNEW? 

"A.  IF HE'S IN JAIL, IT WOULD HAVE BEEN IMPOSSIBLE TO BE THE SAME
MAN."  ABSTRACT OF RECORD 296. 

/6/  CONTRARY TO THE ASSERTION BY THE DISSENT THAT THE MAYER
STATEMENT, WITH ITS ACCOMPANYING DIAGRAM, WAS NEVER MADE AVAILABLE TO
THE DEFENSE, POST, AT 803 AND 809, THE TRIAL TRANSCRIPT INDICATES THAT
DURING THE CROSS-EXAMINATION OF OFFICER KOPPITZ A REQUEST WAS MADE BY
THE DEFENSE FOR ALL WRITTEN STATEMENTS TAKEN BY THE OFFICER FROM
PERSONS IN ZITEK'S RESTAURANT AT THE TIME OF THE SHOOTING.  THE COURT
GRANTED THE REQUEST AND THE RECORD RECITES THAT STATEMENTS OF MAYER AND
OTHERS WERE FURNISHED TO DEFENSE COUNSEL. 

/7/  SEE N. 2. 

/8/  CURIOUSLY, THE STATE ARGUES IN THIS COURT THAT IT IS POSSIBLE
THAT THE 16-GAUGE SHOTGUN WAS THE MURDER WEAPON.  BRIEF FOR RESPONDENT
20-21. 

/9/  LATER IN HIS CLOSING ARGUMENT THE PROSECUTING ATTORNEY REFERRED
TO THE 16-GAUGE SHOTGUN AND STATED AGAIN THAT A 12-GAUGE SHOTGUN KILLED
ZITEK.  HE ARGUED THAT A SHOTGUN IS NOT "THE MOST HUMANE TYPE WEAPON"
AND THAT THE DEATH PENALTY IS APPROPRIATE IN A CASE IN WHICH A SHOTGUN
IS USED TO MURDER A PERSON. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
STEWART, AND MR. JUSTICE POWELL JOIN, CONCURRING IN PART AND DISSENTING
IN PART. 

PETITIONER WAS CONVICTED OF MURDER IN THE ILLINOIS STATE COURTS AND
SENTENCED TO DEATH.  THE SUPREME COURT OF ILLINOIS AFFIRMED THE
CONVICTION AND SENTENCE BY A DIVIDED COURT.  42 ILL.2D 73, 246 N.E.2D
299 (1969).  THIS COURT HOLDS THAT THE IMPOSITION OF THE DEATH SENTENCE
VIOLATED THE PRINCIPLE ESTABLISHED TODAY IN FURMAN V. GEORGIA, ANTE, P.
238, AND THAT THE SENTENCE MUST BE VACATED, BUT THE COURT UPHOLDS THE
UNDERLYING CONVICTION.  I AGREE WITH THE MAJORITY THAT THE SENTENCE IS
INVALID AND JOIN PART V OF THE OPINION OF THE COURT.  I ALSO AGREE THAT
THE INTRODUCTION OF THE SHOTGUN INTO EVIDENCE AT PETITIONER'S TRIAL DID
NOT VIOLATE THE FOURTEENTH AMENDMENT.  /1/ 

BUT, I BELIEVE THAT IN FAILING TO DISCLOSE TO PETITIONER CERTAIN
EVIDENCE THAT MIGHT WELL HAVE BEEN OF SUBSTANTIAL ASSISTANCE TO THE
DEFENSE, THE STATE DENIED HIM A FAIR TRIAL. 

THE OPINION OF THE COURT RELATES AT SOME LENGTH THE FACTS RELATING
TO THE CRIME WITH WHICH PETITIONER WAS CHARGED, THE CIRCUMSTANCES OF
HIS ARREST, THE COURSE OF THE TRIAL, AND THE DEVELOPMENTS AT THE POST
CONVICTION HEARING.  AS THESE FACTS ARE COMPLICATED AND QUITE
CONFUSING.  I HAVE NOT REITERATED THEM HERE.  RATHER, I HAVE EMPHASIZED
THOSE THAT SEEM TO ME TO BE PARTICULARLY IMPORTANT AND I HAVE ADDED
SEVERAL DETAILS THAT ARE OMMITTED FROM THE COURT'S OPINION. 

TWO INTERRELATED DEFENSES WERE RAISED AGAINST THE CHARGE OF MURDER--
ALIBI AND MISIDENTIFICATION.  PETITIONER'S THEORY OF THE CASE WAS THAT
HE WAS NOT AT THE SCENE WHEN THE MURDER WAS COMMITTED AND THAT THOSE
WITNESSES WHO TESTIFIED THAT THEY SAW HIM THERE WERE CONFUSING HIM WITH
SOMEONE ELSE. 

ONLY TWO WITNESSES AFFIRMATIVELY ASSERTED AT TRIAL THAT THEY SAW THE
MURDER AND THAT THEY COULD IDENTIFY PETITIONER AS THE ASSAILANT.  THEY
WERE PATRICIA HILL, A WAITRESS IN THE VICTIM'S BAR, AND HENLEY POWELL,
A CUSTOMER.  ASIDE FROM THEIR TESTIMONY, THE ONLY OTHER EVIDENCE
INTRODUCED AGAINST PETITIONER RELATED TO STATEMENTS THAT HE ALLEGEDLY
MADE TWO DAYS AFTER THE MURDER. 

THERE IS A PROBLEM WITH THE EYEWITNESS TESTIMONY OF POWELL THAT DID
NOT BECOME APPARENT UNTIL THE POST-CONVICTION HEARING IN THE TRIAL
COURT.  AT TRIAL HE TESTIFIED AS FOLLOWS: 

"THE DEFENDANT (INDICATING) CAME INTO THE TAVERN WHILE I WAS AT THE
TABLE.  I FIRST SAW HIM WHEN HE WALKED IN THE DOOR WITH A SHOTGUN.  I
WAS SITTING AT THE TABLE ALONG THE WALL.  I WAS FACING WHERE THE
BARTENDER WAS STANDING AND I ALSO HAD A VIEW OF THE MAN THAT WALKED IN
THE DOOR.  I WAS LOOKING TO THE WEST."  ABS.  32.  BUT AT THE POST
CONVICTION HEARING IT WAS DISCOVERED THAT POLICE OFFICERS WHO HAD
INVESTIGATED THE MURDER POSSESSED A STATEMENT BY ONE CHARLES MAYER, WHO
HAD BEEN SITTING WITH POWELL AT A TABLE IN THE BAR, WHICH CONTAINED A
DIAGRAM INDICATING THAT POWELL WAS SEATED IN A DIRECTION OPPOSITE THAT
INDICATED IN HIS TRIAL TESTIMONY.  THIS DIAGRAM WAS NEVER MADE
AVAILABLE TO DEFENSE COUNSEL.  /2/     DONALD O'BRIEN, WHO HAD ALSO
BEEN SEATED AT POWELL AND MAYER'S TABLE, TESTIFIED AT TRIAL AND
CONTRADICTED THE TESTIMONY OF BOTH POWELL AND PATRICIA HILL.  ALTHOUGH
O'BRIEN ADMITTED THAT HE DID NOT ACTUALLY SEE THE SHOOTING BECAUSE HIS
BACK WAS TO THE BAR, HE WAS CERTAIN THAT PETITIONER WAS NOT THE MAN WHO
HAD BEEN EJECTED FROM THE VICTIM'S BAR ONLY AN HOUR BEFORE THE
KILLING.  O'BRIEN'S TESTIMONY GREATLY UNDERCUT THE APPARENT RETALIATORY
MOTIVE THAT THE PROSECUTION ATTRIBUTED TO PETITIONER, /3/     BECAUSE
OF THE CONTRADICTORY TESTIMONY OF THOSE PERSONS WHO WERE PRESENT AT THE
SCENE OF THE MURDER, THE STATEMENTS ALLEGEDLY MADE BY THE PETITIONER
AFTER THE CRIME WERE CRUCIAL TO THE PROSECUTION'S CASE.  THE KEY
PROSECUTION WITNESS IN THIS REGARD WAS VIRGLE SANDERS.  HE TESTIFIED
THAT TWO DAYS AFTER THE MURDER HE WAS IN THE PONDEROSA TAVERN, THAT
PETITIONER (WHOM HE KNEW AS "SLICK") WAS THERE ALSO, AND THAT
PETITIONER SAID "(SOMETHING ABOUT IT'S SEASON OR OPEN SEASON ON
BARTENDERS OR SOMETHING LIKE THAT."  ABS.  44.  THE BARTENDER ALSO
TESTIFIED THAT HE RECOGNIZED PETITIONER AS BEING PRESENT AT THE SAME
TIME AS SANDERS.  AND THE OWNER OF THE TAVERN STATED THAT HE GAVE
PETITIONER AND PETITIONER'S FRIEND A SHORT RIDE IN HIS AUTOMOBILE, AT
THE END OF WHICH THE FRIEND MENTIONED SOMETHING ABOUT "TROUBLE WITH THE
BARTENDER."  ABS.  52. 

AFTER HIS TRIAL AND CONVICTION PETITIONER LEARNED THAT FIVE DAYS
AFTER THE MURDER, SANDERS GAVE A STATEMENT TO THE POLICE IN WHICH HE
SAID THAT HE HAD MET "SLICK" FOR THE FIRST TIME ABOUT SIX MONTHS BEFORE
HE SPOKE TO HIM IN THE PONDEROSA TAVERN.  AS THE COURT NOTES, IT WOULD
HAVE BEEN IMPOSSIBLE FOR SANDERS TO HAVE MET THE PETITIONER AT THE TIME
SPECIFIED, BECAUSE PETITIONER WAS IN FEDERAL PRISON AT THAT TIME.  AT
THE POST-CONVICTION HEARING, SANDERS SAID THAT HE WAS NOT POSITIVE WHEN
HE FIRST MET THE MAN KNOWN AS "SLICK," BUT THAT HE DEFINITELY KNEW IT
WAS BEFORE CHRISTMAS 1961.  PETITIONER WAS NOT RELEASED FROM FEDERAL
CUSTODY UNTIL MARCH 1962.  WHEN CONFRONTED WITH THIS FACT, SANDERS
INDICATED THAT IT WAS IMPOSSIBLE THAT PETITIONER WAS THE MAN WITH WHOM
HE HAD SPOKEN IN THE PONDEROSA TAVERN.  ABS.  296.  SANDERS' TRIAL
IDENTIFICATION WAS FURTHER IMPEACHED AT THE POST-TRIAL HEARING BY
TESTIMONY THAT ON THE DAY OF TRIAL HE TOLD POLICE OFFICERS THAT
PETITIONER WAS APPROXIMATELY 30 OR 40 POUNDS LIGHTER THAN HE REMEMBERED
"SLICK" BEING.  ABS.  294. 

SANDERS' TESTIMONY THAT PETITIONER AND "SLICK" WERE NOT ONE AND THE
SAME WAS CORROBORATED AT THE HEARING.  THE REASON THAT SANDERS COULD
REMEMBER THE FIRST TIME THAT HE HAD MET "SLICK" WAS THAT "SLICK" HAD
BEEN INVOLVED IN A SCUFFLE WITH ONE WILLIAM THOMPSON.  THOMPSON
TESTIFIED AT THE HEARING THAT HE REMEMBERED THE ALTERCATION, THAT HE
KNEW "SLICK," THAT PRIOR TO THE TRIAL HE HAD TOLD POLICE OFFICERS THAT
PETITIONER WAS NOT "SLICK," AND THAT HE REMAINED CERTAIN THAT
PETITIONER AND "SLICK" WERE DIFFERENT PEOPLE.  FINALLY, SANDERS'
TESTIMONY WAS CORROBORATED BY DELBERT JONES, THE OWNER OF THE TAVERN
WHERE "SLICK" AND THOMPSON SCUFFLED.  JONES TESTIFIED THAT HE WAS
CERTAIN THAT PETITIONER WAS NOT THE MAN KNOWN AS "SLICK." 

THE FACT IS THAT THOMPSON AND JONES WERE BOTH FAMILIAR WITH ONE
JAMES E. WATTS, WHOM THEY KNEW AS "SLICK," AND WHO LOOKED VERY MUCH
LIKE THE PETITIONER.  THE RECORD MAKES CLEAR THAT THE POLICE SUSPECTED
WATTS AS THE MURDERER AND ASSIGNED A LIEUTENANT TO SEARCH FOR HIM.  A
RAID OF JONES' BAR WAS EVEN MADE IN THE HOPE OF FINDING THIS SUSPECT. 

SANDERS' TESTIMONY AT THE POST-CONVICTION HEARING INDICATES THAT IT
WAS WATTS WHO BRAGGED ABOUT THE MURDER, NOT PETITIONER.  IT IS TRUE
THAT THE BARTENDER AND THE OWNER OF THE PONDEROSA TAVERN TESTIFIED AT
TRIAL THAT IT WAS PETITIONER WHO WAS IN THE BAR WITH SANDERS, BUT THE
BARTENDER HAD NEVER SEEN "SLICK" BEFORE, AND THE OWNER WAS DRINKING THE
ENTIRE AFTERNOON.  FURTHERMORE, THE FACT REMAINS THAT PETITIONER AND
WATTS LOOK VERY MUCH ALIKE. 

PETITIONER URGES THAT WHEN THE STATE DID NOT REVEAL TO HIM SANDERS'
STATEMENT ABOUT MEETING "SLICK" AT AN EARLIER TIME AND THE
CORROBORATIVE STATEMENTS OF THOMPSON AND JONES, IT DENIED HIM DUE
PROCESS.  THE COURT ANSWERS THIS BY SAYING THAT THE STATEMENTS WERE NOT
MATERIAL.  IT IS EVIDENT FROM THE FOREGOING THAT THE STATEMENTS WERE
NOT MERELY MATERIAL TO THE DEFENSE, THEY WERE ABSOLUTELY CRITICAL.  I
FIND MYSELF IN COMPLETE AGREEMENT WITH JUSTICE SCHAEFFER'S DISSENT IN
THE ILLINOIS SUPREME COURT: 

"THE DEFENDANT'S CONVICTION RESTS ENTIRELY UPON IDENTIFICATION

  TESTIMONY.  THE FACTS DEVELOPED AT THE POST-CONVICTION HEARING

  SERIOUSLY IMPEACHED, IF INDEED THEY DID NOT DESTROY, SANDERS'S

  TRIAL TESTIMONY.  HAD THOSE FACTS, AND THE IDENTIFICATIONS OF

  'SLICK' WATTS BY THOMPSON AND JONES, BEEN AVAILABLE AT THE TRIAL,

  THE JURY MAY WELL HAVE BEEN UNWILLING TO ACT UPON THE

  IDENTIFICATIONS OF PATRICIA HILL AND HENLEY POWELL.  FAR MORE IS

  INVOLVED IN THIS CASE, IN MAY OPINION, THAN 'THE FOLLOWING UP OF

  USELESS LEADS AND DISCUSSIONS WITH IMMATERIAL WITNESSES.' 

  CERTAINLY IF SANDERS'S IDENTIFICATION WAS MATERIAL, THE . . .

  TESTIMONY OF THE OTHER WITNESSES WHICH DESTROYED THAT

  IDENTIFICATION (WAS) ALSO MATERIAL.  CONSEQUENTLY, I BELIEVE THAT

  THE STATE'S NONDISCLOSURE DENIED THE DEFENDANT THE FUNDAMENTAL

  FAIRNESS GUARANTEED BY THE CONSTITUTION.  . . . "  42 ILL.2D, AT

  88-89, 246 N.E.2D, AT 308.  /4/ 

PETITIONER ALSO URGES THAT THE FAILURE OF THE PROSECUTION TO
DISCLOSE THE INFORMATION CONCERNING WHERE THE EYEWITNESS POWELL WAS
SITTING WHEN HE ALLEGEDLY SAW PETITIONER IS ANOTHER INSTANCE OF
SUPPRESSION OF EVIDENCE IN VIOLATION OF THE FOURTEENTH AMENDMENT.  HAD
THIS BEEN THE PROSECUTION'S ONLY ERROR, I WOULD JOIN THE COURT IN
FINDING THE EVIDENCE TO BE IMMATERIAL.  BUT IF THIS EVIDENCE IS
CONSIDERED TOGETHER WITH OTHER EVIDENCE THAT WAS SUPPRESSED, IT MUST BE
APPARENT THAT THE FAILURE OF THE PROSECUTION TO DISCLOSE IT CONTRIBUTED
TO THE DENIAL OF DUE PROCESS. 

EVEN IF MATERIAL EXCULPATORY EVIDENCE WAS NOT MADE AVAILABLE TO
PETITIONER, THE STATE ARGUES THAT BECAUSE PETITIONER DID NOT DEMAND TO
SEE THE EVIDENCE, HE CANNOT NOW COMPLAIN ABOUT NONDISCLOSURE.  THIS
ARGUMENT IS DISINGENUOUS AT BEST. 

PRIOR TO TRIAL, PETITIONER MOVED FOR DISCOVERY OF ALL STATEMENTS
GIVEN TO THE PROSECUTOR OR THE POLICE BY ANY WITNESS POSSESSING
INFORMATION RELEVANT TO THE CASE.  ABS.  5.  IN EXPLAINING WHY SUCH A
BROAD MOTION WAS MADE, PEITITIONER'S COUNSEL STATED THAT, "WE WANT TO
CIRCUMVENT THE POSSIBILITY THAT A WITNESS GETS ON THE STAND AND SAYS,
'YES, I MADE A WRITTEN STATEMENT,' AND THEN THE STATE'S ATTORNEY SAYS,
'BUT NO, WE DON'T HAVE IT IN OUR POSSESSION,' OR THEY SAY, 'IT'S IN THE
POSSESSION OF ORLANDO WILSON (SUPERINTENDENT OF POLICE, CHICAGO,
ILL.),' OR 'THE CHIEF OF POLICE OF LANSING,'"  ABS.  8.  IN RESPONSE TO
THE MOTION, THE PRSECUTOR GUARANTEED DEFENSE COUNSEL AND THE COURT THAT
HE WOULD SUPPLY DEFENSE COUNSEL WITH STATEMENTS MADE EITHER TO THE
POLICE OR TO THE STATE'S ATTORNEY BY WITNESSES WHO WERE CALLED TO
TESTIFY AT TRIAL.  IBID.  BASED ON THIS REPRESENTATION, THE MOTION FOR
DISCOVERY WAS DENIED.  NEVER WAS THERE ANY IMPLICATION BY THE
PROSECUTOR THAT HIS GUARANTEE WAS IN ANY WAY DEPENDENT UPON
PETITIONER'S MAKING REPEATED AND SPECIFIC REQUESTS FOR SUCH STATEMENTS
AFTER EACH WITNESS TESTIFIED AT TRIAL.  THE PROSECUTOR'S GUARANTEE
CERTAINLY COVERED SANDERS'  STATEMENT.  AS FOR THE STATEMENTS OF THEY
BARTENDER AND OWNER OF THE PONDEROSA TAVERN AND THE STATEMENT AND
DIAGRAM OF CHARLES MAYER, PETITIONER CLEARLY DEMANDED TO SEE THESE
THINGS BEFORE TRIAL.  THE PROSECUTION TOOK THE POSITION THAT IT WAS
BOUND TO REVEAL ONLY THE STATEMENTS OF WITNESSES WHO TESTIFIED.  HENCE,
IT IS HARD TO IMAGINE WHAT SORT OF FURTHER DEMAND PETITIONER MIGHT HAVE
MADE.  MOREOVER, THE VERY FACT THAT PETITIONER MADE HIS MOTION FOR
EXTENSIVE DISCOVERY PLACED THE PROSECUTION ON NOTICE THAT THE DEFENSE
WISHED TO SEE ALL STATEMENTS BY ANY WITNESS THAT MIGHT BE EXCULPATORY. 
THE MOTION SERVED "THE VALUABLE OFFICE OF FLAGGING THE IMPORTANCE OF
THE EVIDENCE FOR THE DEFENSE AND THUS IMPOSING) ON THE PROSECUTOR A
DUTY TO MAKE A CAREFUL CHECK OF HIS FILES."  UNITED STATES V. KEOGH,
391 F.2D 138, 147 (CA2 1968). 

IN MY VIEW, BOTH BRADY V. MARYLAND, 373 U.S. 83 (1963), AND NAPUE V.
ILLINOIS, 360 U.S. 264 (1959), REQUIRE THAT THE CONVICTION IN THIS CASE
BE REVERSED.  NAPUE ESTABLISHES THAT THE FOURTEENTH AMENDMENT IS
VIOLATED "WHEN THE STATE, ALTHOUGH NOT SOLICITING FALSE EVIDENCE,
ALLOWS IT TO GO UNCORRECTED."  ID., AT 269.  AND BRADY HOLDS THAT
SUPPRESSION OF MATERIAL EVIDENCE REQUIRES A NEW TRIAL "IRRESPECTIVE OF
THE GOOD FAITH OR BAD FAITH OF THE PROSECUTION."  SUPRA, AT 87.  THERE
CAN BE NO DOUBT THAT THERE WAS SUPPRESSION OF EVIDENCE BY THE STATE AND
THAT THE EVIDENCE THAT THE STATE RELIED ON WAS "FALSE" IN THE SENSE
THAT IT WAS INCOMPLETE AND MISLEADING. 

BOTH BEFORE AND DURING THE TRIAL THE PROSECUTOR MET WITH SANDERS AND
WENT OVER THE STATEMENT THAT HE HAD GIVEN THE POLICE FIVE DAYS AFTER
THE MURDER.  ABS.  301, 315.  THUS, IT IS APPARENT THAT THE PROSECUTOR
NOT ONLY KNEW OF THE STATEMENT, BUT WAS ACTIVELY USING IT TO PREPARE
HIS CASE.  THERE WAS ALSO TESTIMONY AT THE POST-CONVICTION HEARING FROM
THE PROSECUTION THAT IT HAD DISCUSSED THE LOCATION WHERE POWELL WAS
SITTING WHEN HE ALLEGEDLY SAW THEY MURDER.  WHILE THE PROSECUTOR COULD
NOT REMEMBER WHETHER OR NOT HE ACTUALLY HAD MAYER'S STATEMENT AND
DIAGRAM IN HIS POSSESSION, HE HAD SOME RECOLLECTION THAT BEFORE TRIAL
HE WAS INFORMED OF EXACTLY WHERE EVERYONE AT POWELL'S TABLE WAS
SITTING.  ABS.  323.  NO ATTEMPT WAS EVER MADE AT TRIAL TO COMMUNICATE
THIS INFORMATION TO THE DEFENSE. 

MOREOVER, SEATED AT THE PROSECUTOR'S TABLE THROUGHOUT THE TRIAL WAS
POLICE LIEUTENANT TURBIN, WHO HAD INVESTIGATED THE CASE AND WHO WAS
ASSISTING THE PROSECUTION.  AT THE POST-CONVICTION HEARING, HE
TESTIFIED THAT THROUGHOUT THE TRIAL HE WAS NOT ONLY AWARE OF SANDERS'
STATEMENT AND MAYER'S DIAGRAM, BUT ALSO THAT HE HAD THEM IN HIS FILE. 
HE MADE NO ATTEMPT TO COMMUNICATE HIS INFORMATION TO THE PROSECUTOR OR
TO REMIND HIM ABOUT THE EVIDENCE. 

WHEN THE STATE POSSESSES INFORMATION THAT MIGHT WELL EXONERATE A
DEFENDANT IN A CRIMINAL CASE, IT HAS AFFIRMATIVE DUTY TO DISCLOSE THAT
INFORMATION.  WHILE FRIVOLOUS INFORMATION AND USELESS LEADS CAN BE
IGNORED, IF EVIDENCE IS CLEARLY RELEVANT AND HELPFUL TO THE DEFENSE, IT
MUST BE DISCLOSED. 

OBVIOUSLY SOME BURDEN IS PLACED ON THE SHOULDERS OF THE PROSECUTOR
WHEN HE IS REQUIRED TO BE RESPONSIBLE FOR THOSE PERSONS WHO ARE
DIRECTLY ASSISTING HIM IN BRINGING AN ACCUSED TO JUSTICE.  BUT THIS
BURDEN IS THE ESSENCE OF DUE PROCESS OF LAW.  IT IS THE STATE THAT
TRIES A MAN, AND IT IS THE STATE THAT MUST INSURE THAT THE TRIAL IS
FAIR.  "A CITIZEN HAS THE RIGHT TO EXPECT FAIR DEALING FROM HIS
GOVERNMENT, SEE VITARELLI V. SEATON, 359 U.S. 535, AND THIS ENTAILS . .
. TREATING THE GOVERNMENT AS A UNIT RATHER THAN AS AMALGAM OF SEPARATE
ENTITIES."  S & E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1, 10
(1972).  "THE PROSECUTOR'S OFFICE IS AN ENTITY AND AS SUCH IT IS THE
SPOKESMAN FOR THE GOVERNMENT."  GIGLIO V. UNITED STATES, 405 U.S. 150,
154 (1972).  /5/  SEE ALSO SANTOBELLO V. NEW YORK, 404 U.S. 257, 262
(1971); BARKER V. WINGO, 407 U. S. 514 (1972). 

MY READING OF THE CASE LEADS ME TO CONCLUDE THAT THE PROSECUTOR KNEW
THAT EVIDENCE EXISTED THAT MIGHT HELP THE DEFENSE, THAT THE DEFENSE HAD
ASKED TO SEE IT, AND THAT IT WAS NEVER DISCLOSED.  IT MAKES NO
DIFFERENCE WHATEVER WHETHER THE EVIDENCE THAT WAS SUPPRESSED WAS FOUND
IN THE FILE OF A POLICE OFFICER WHO DIRECTLY AIDED THE PROSECUTION OR
IN THE FILE OF THE PROSECUTOR HIMSELF.  WHEN THE PROSECUTOR CONSCIOUSLY
USES POLICE OFFICERS AS PART OF THE PROSECUTORIAL TEAM, THOSE OFFICERS
MAY NOT CONCEAL EVIDENCE THAT THE PROSECUTOR HIMSELF WOULD HAVE A DUTY
TO DISCLOSE.  IT WOULD BE UNCONSCIONABLE TO PERMIT A PROSECUTOR TO
ADDUCE EVIDENCE DEMONSTRATING GUILT WITHOUT ALSO REQUIRING THAT HE BEAR
THE RESPONSIBILITY OF PRODUCING ALL KNOWN AND RELEVANT EVIDENCE TENDING
TO SHOW INNOCENCE. 

/1/  I FIND THE CONSTITUTIONAL QUESTION PRESENTED BY THE
INTRODUCTION OF THIS EVIDENCE TO BE MUCH HARDER THAN THE MAJORITY SEEMS
TO.  IT WAS UNCONTRADICTED AT TRIAL THAT THE WEAPON INTRODUCED AGAINST
PETITIONER HAD NO BEARING ON THE CRIME WITH WHICH HE WAS CHARGED.  IT
WAS, IN FACT, CLEAR THAT THE SHOTGUN ADMITTED INTO EVIDENCE WAS A 16
GAUGE GUN, WHEREAS THE MURDER WEAPON WAS A 12-GAUGE GUN.  DESPITE THE
FACT THAT THE PROSECUTION CONCEDED THIS IN A PRETRIAL BILL OF
PARTICULARS, IT DID EVERYTHING POSSIBLE TO OBFUSCATE THE FACT THAT THE
WEAPON ADMITTED INTO EVIDENCE WAS NOT THE MURDER WEAPON.  THIS WAS
HIGHLY IMPROPER.  THE RECORD ALSO INDICATES THAT THE TRIAL JUDGE WAS
CONFUSED AS TO WHY HE THOUGHT THE WEAPON SHOULD BE ADMITTED.  AT ONE
POINT HE SAID, "THERE WAS TESTIMONY HERE THAT THIS WAS A SHOTGUN
KILLING.  AND I CAN SEE NOTHING WRONG IF THEY SAY THAT THIS DEFENDANT,
WHO WILL BE IDENTIFIED BY OTHER PEOPLE, WAS APPREHENDED WITH THIS
GUN."  ABSTRACT OF RECORD (ABS.), 65.  IF THE TRIAL JUDGE MEANT TO
IMPLY THAT BECAUSE THE CRIME WAS COMMITTED WITH A SHOTGUN, IT WAS
SUFFICIENT TO PROVE THAT THE PETITIONER POSSESSED ANY SHOTGUN, WHETHER
OR NOT IT WAS THE MURDER WEAPON, HE SURELY ERRED.  BUT IT IS IMPOSSIBLE
TO TELL FROM THE RECORD IN THIS CASE PRECISELY WHAT WAS INTENDED, OR
WHETHER THE JUDGE CONFUSED THE JURY WHEN HE ADMITTED THE WEAPON. 
ALTHOUGH THIS HIGHLY PREJUDICIAL AND IRRELEVANT EVIDENCE WAS
INTRODUCED, AND ALTHOUGH THE PROSECUTION DID ITS BEST TO LEAD THE JURY
TO BELIEVE THAT THERE WAS A RELATIONSHIP BETWEEN THE MURDER WEAPON AND
THE SHOTGUN IN EVIDENCE, THE FACT THAT PETITIONER'S COUNSEL EXPLAINED
TO THE JURY THAT THE TWO WEAPONS WERE NOT IDENTICAL IS, ON THE VERY
CLOSEST BALANCE, ENOUGH TO WARRANT OUR FINDING THAT THE JURY WAS NOT
IMPROPERLY MISLED AS TO THE NATURE OF THE EVIDENCE BEFORE IT.     /2/
IT IS TRUE, AS THE COURT STATES, THAT FOLLOWING THE SHOOTING POWELL
FOLLOWED THE ASSAILANT INTO THE STREET, BUT IT IS ALSO TRUE THAT HE
NEVER GOT CLOSER THAN 50 TO 60 FEET OF THE MURDERER.  ABS.  32.  THE
STRENGTH OF HIS TESTIMONY LAY IN THE ALLEGED OPPORTUNITY HE HAD FOR
CLOSE OBSERVATION OF THE MURDERER WHILE THE CRIME WAS COMMITTED. 
FOOTNOTE 6 OF THE COURT'S OPINION IMPLIES THAT DURING THE TRIAL THE
PROSECUTION TURNED OVER MAYER'S DIAGRAM TO DEFENSE COUNSEL.  BUT THERE
IS ABSOLUTELY NO SUPPORT FOR THIS IMPLICATION IN THE RECORD.  WHILE IT
IS TRUE THAT THE DIAGRAM WAS DRAWN ON THE BACK OF THE ORIGINAL
STATEMENT GIVEN BY MAYER TO THE POLICE, THERE IS NOTHING TO INDICATE
THAT IT WAS EVER RECOPIED AND MADE A PART OF ANY REPRODUCTIONS OF
MAYER'S STATEMENT.  ALL INDICATIONS ARE THAT IT WAS NOT REPRODUCED.  AT
THE POST-CONVICTION HEARING THE FOLLOWING TESTIMONY WAS ADDUCED:  THE
POLICE OFFICER WHO AIDED THE PROSECUTION AT TRIAL INDICATED THAT HE HAD
THE ORIGINAL DIAGRAM IN HIS FILE, ABS.  244-249; THE TWO LAWYERS WHO
HAD REPRESENTED PETITIONER AT TRIAL BOTH SWORE THAT THEY WERE GIVEN
ONLY MAYER'S STATEMENT, NOT HIS DIAGRAM, ABS.  307, 328; AND THE
PROSECUTOR TESTIFIED THAT HE DID NOT KNOW FOR SURE WHETHER HE GAVE THE
DIAGRAM TO DEFENSE COUNSEL, BUT THAT IT WAS CERTAIN THAT HE DID NOT
SUPPLY THE DIAGRAM IF IT WAS NOT IN HIS FILE.  ABS.  324.  SINCE THE
DIAGRAM WAS IN THE POLICE OFFICER'S FILE, NOT THE PROSECUTOR'S, IT IS
CLEAR THAT IT WAS NEVER MADE AVAILABLE TO DEFENSE COUNSEL, EVEN THOUGH
THE PROSECUTOR WAS AWARE OF ITS CONTENTS.  SEE INFRA, AT 809. 

/3/  THE COURT ASSERTS THAT O'BRIEN MAY HAVE BEEN DRUNK.  HIS
TESTIMONY AT TRIAL MADE IT CLEAR BEYOND DOUBT THAT WHEN THE VICTIM
EJECTED THE MAN ALLEGED TO BE THE PETITIONER FROM THE BAR, THIS WITNESS
WAS PERFECTLY SOBER.  LATER, ESPECIALLY AFTER THE KILLING, THE WITNESS
DRANK HEAVILY AND BECAME INTOXICATED.  NO ONE CONTRADICTED THIS AT
TRIAL. 

/4/  CHIEF JUDGE FRIENDLY HAS NOTED THAT WHEN THE PROSECUTION FAILS
TO DISCLOSE EVIDENCE WHOSE HIGH VALUE TO THE DEFENSE COULD NOT HAVE
ESCAPED THE PROSECUTOR'S ATTENTION, "ALMOST BY DEFINITION THE EVIDENCE
IS HIGHLY MATERIAL."  UNITED STATES V. KEOGH, 391 F.2D 138, 147 (CA2
1968).  SEE ALSO UNITED STATES EX REL. MEERS V. WILKINS, 326 F.2D 135
(CA2 1964). 

THE MATERIALITY OF THE UNDISCLOSED EVIDENCE IN THIS CASE CANNOT BE
SERIOUSLY DOUBTED.  THE STATE BASED ITS CASE PRIMARILY ON THE
EYEWITNESS IDENTIFICATIONS OF PETITIONER BY A WITNESS AND PATRON IN THE
BAR.  TESTIMONY OF THIS SORT BASED ON IN-COURT IDENTIFICATION IS OFTEN
VIEWED WITH SUSPICION BY JURIES.  SEE MCGOWAN, CONSTITUTIONAL
INTERPRETATION AND CRIMINAL IDENTIFICATION, 12 WM.& MARY L.REV.  235,
241-242 (1970).  THAT TESTIMONY IN THIS CASE WAS SUBJECT TO SERIOUS
QUESTION:  INDEED, PETITIONER PREMISED HIS DEFENSE IN LARGE PART ON A
THEORY OF MISIDENTIFICATION.  COUPLED WITH THE CONTRADICTORY STATEMENT
MADE BY O'BRIEN (SEE SUPRA, AT 803), THE EVIDENCE SHOWING THAT ONE OF
THE WITNESSES MAY NOT HAVE HAD AN ADEQUATE OPPORTUNITY TO OBSERVE AND
THAT PETITIONER MAY HAVE BEEN CONFUSED WITH ANOTHER PERSON NAMED
"SLICK" WOULD CERTAINLY HAVE BEEN MATERIAL TO THE DEFENSE'S
PRESENTATION OF ITS CASE. 

/5/  IN THE RECENT DECISION IN KASTIGAR V. UNITED STATES, 406 U.S. 441
(1972), HOLDING THAT USE IMMUNITY WAS CO-EXTENSIVE WITH THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION, THE COURT NOTED THAT
PROSECUTORS MAY BE RESPONSIBLE FOR ACTIONS OF POLICE OFFICERS ENLISTED
TO AID A PROSECUTION. 

JAMES J. DOHERTY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS GERALD W. GETTY. 

THOMAS J. IMMEL, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, JOEL M. FLAUM, FIRST ASSISTANT ATTORNEY GENERAL, AND
JAMES B. ZAGEL AND JAYNE A. CARR, ASSISTANT ATTORNEYS GENERAL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY ELMER GERTZ AND
WILLARD J. LASSERS FOR THE AMERICAN CIVIL LIBERTIES UNION, ILLINOIS
DIVISION, ET AL., AND BY JACK GREENBERG, JAMES M. NABRIT III, JACK
HIMMELSTEIN, AND ANTHONY G. AMSTERDAM FOR THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., ET AL.
..END :







PORT OF PORTLAND V. UNITED STATES, 408 U.S. 811 


       PORT OF PORTLAND ET AL. V. UNITED STATES ET AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF OREGON

        NO. 70-31.  ARGUED OCTOBER 20, 1971-- DECIDED JUNE 29,
1972 


THE SPOKANE, PORTLAND & SEATTLE RAILWAY CO. (SP&S), A SUBSIDIARY OF
BURLINGTON NORTHERN, AND THE UNION PACIFIC (UP), SOUGHT INTERSTATE
COMMERCE COMMISSION (ICC) APPROVAL UNDER SEC. 5(2) OF THE INTERSTATE
COMMERCE ACT OF A JOINT ACQUISITION OF CONTROL OF THE PENINSULA
TERMINAL CO. (PENINSULA), WHOSE TRACKS PROVIDE AN ACCESS ROUTE TO
RIVERGATE, AN INDUSTRIAL COMPLEX BEING DEVELOPED BY THE PORT OF
PORTLAND, OREGON.  PENINSULA WOULD CONTINUE TO OPERATE AS A SEPARATE
CARRIER.  THE MILWAUKEE AND THE SOUTHERN PACIFIC (SP), THE TWO OTHER
LINE-HAUL CARRIERS SERVING PORTLAND, SOUGHT INCLUSION AS JOINT
PURCHASERS OF PENINSULA, AND TRACKAGE RIGHTS LINKING THEIR LINES WITH
PENINSULA, UNDER SECS. 5(2)(B), (C), AND (D) OF THE ACT.  SP, BY A
SEPARATE PROCEEDING, ALSO SOUGHT TRACKAGE LINKING ITS LINES WITH
PENINSULA, UNDER SEC. 3(5).  THE ICC (SUBJECT TO CONDITIONS TO PROTECT
THE TRAFFIC OFO THE OTHER RAILROADS) APPROVED THE PURCHASE OF PENINSULA
BY BURLINGTON NORTHERN AND UP, BUT DENIED THE MILWAUKEE AND SP
PETITIONS.  IT CONCLUDED THAT THE ADVERSE EFFECTS ON SP&S AND UP OF THE
PROPOSED FOUR-RAILROAD OWNERSHIP OF PENINSULA AND ACCOMPANYING TRACKAGE
RIGHTS WOULD OUTWEIGH THE ADVANTAGES TO SP, MILWAUKEE, AND THE
RIVERGATE INDUSTRIES.  MILWAUKEE CONTENDS THAT CONDITION 24(A) TO THE
NORTHERN LINES MERGER, WHICH GAVE MILWAUKEE ACCESS TO THE PORTLAND AREA
OVER THE BURLINGTON NORTHERN-S&S TRACKS, REQUIRED THAT MILWAUKEE BE
INCLUDED IN THE PURCHASE OF PENINSULA.  HELD: 

1.  ON THE RECORD IN THIS CASE (WHICH IS AMBIGUOUS WITH REGARD TO
MANY FACTUAL AND PROCEDURAL ISSUES) IT HAS NOT BEEN SHOWN THAT THE
ICC'S ORDER AUTHORIZING UP AND BURLINGTON NORTHERN ALONE TO ACQUIRE
PENINSULA MET THE "PUBLIC INTEREST" STANDARD OF SEC. 5(2).  PP. 834
842. 

(A) IN STRESSING THE SMALL SHARE IN PENINSULA'S TRAFFIC THAT
MILWAUKEE HAD BEFORE THE NORTHERN LINES MERGER, THE ICC IGNORED ANY
POSSIBLE INCREASE IN THAT SHARE AFTER CONDITION 24(A) TOOK EFFECT.  PP.
839-840. 

(B) IN ANNOUNCING A PRINCIPLE OF PRESERVING THE MARKET SHARES OF THE
TWO RAILROADS CURRENTLY CONNECTING WITH PENINSULA, THE ICC FAILED TO
EXPLAIN WHY IT WAS NOT TAKING INTO ACCOUNT THE POTENTIALLY ENORMOUS
TRAFFIC OVER PENINSULA, SHOULD PENINSULA BECOME THE NORTHERN ROUTE INTO
RIVERGATE.  PP. 840-841. 

(C) THE ICC'S DENIAL OF INCLUSION OF SP AND MILWAUKEE BECAUSE THEIR
GAIN WOULD WORK A CORRESPONDING LOSS TO BURLINGTON NORTHERN AND UP IS
NOT A PROPER APPROACH UNDER SEC. 5(2), GIVEN THE PRINICPLE THAT THE
ANTICOMPETITIVE EFFECTS OF ANY SEC. 5(2) TRANSACTION MUST BE EXPLICITLY
CONSIDERED.  MCLEAN TRUCKING CO. V. UNITED STATES, 321 ULS.  67, 83
87.  PP. 841-842. 

(D) IN VIEW OF UNCERTAINTIES ABOUT THE NORTHERN ACCESS TO RIVERGATE-
GIVEN THE PHYSICAL LIMITATIONS OF PENINSULA'S PRESENT FACILITIES-- AND
THE APPARENT FACT THAT PHYSICAL OPERATION OVER PENINSULA INTO RIVERGATE
WAS NOT AT ISSUE HERE, APPROVAL OF THE ICC ORDER, WITH ITS PROTECTIVE
CONDITIONS, MAY STILL BE IN THE PUBLIC INTEREST, BUT THE ANNOUNCED
GROUNDS FOR THE ICC DECISION DO NOT COMPORT WITH THE APPLICABLE LEGAL
PRINCIPLES.  SEE SEC V. CHENERY CORP., 318 U.S. 80, 87-88.  P. 842. 

2.  THE DENIAL OF TRACKAGE RIGHTS TO SP (ON THE GROUND THAT SP WAS
"NOT ENTITLED TO SERVE PENINSULA OR RIVERGATE") SHOULD BE RECONSIDERED
BY THE ICC IN CONJUNCTION WITH THE REAPPRAISAL OF THE SEC. 5(2)
ISSUES.  PP. 843-844. 

REVERSED AND REMANDED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES AN ORDER OF THE INTERSTATE COMMERCE COMMISSION,
ISSUED UNDER SEC. 5(2) OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 54
STAT. 905, 49 U.S.C. 5(2), AUTHORIZING THE JOINT ACQUISITION OF A
HERETOFORE INDEPENDENT SWITCHING RAILROAD AT PORTLAND, OREGON, BY TWO
OF THE FOUR LINE-HAUL RAILROADS SERVING THAT CITY.  SPOKANE, P. & S.R.
CO. AND UNION PACIFIC R. CO., 334 I.C.C. 419 (1969).  THE SWITCHING
RAILROAD, PENINSULA TERMINAL CO., IS OF CURRENT INTEREST TO THE
CARRIERS BECAUSE IT PROVIDES AN ENTRANCE ROUTE TO THE RIVERGATE
INDUSTRIAL DISTRICT, A MODERN INDUSTRIAL AND PORT COMPLEX BEING
DEVELOPED BY THE APPELLANT, PORT OF PORTLAND. 

THE TWO RAILROADS AUTHORIZED TO ACQUIRE PENINSULA ARE THE UNION
PACIFIC RAILWAY CO. (UP) AND THE GREAT NORTHERN PACIFIC & BURLINGTON
LINES, INC. (BURLINGTON NORTHERN), THROUGH ITS SUBSIDIARY, THE SPOKANE,
PORTLAND & SEATTLE RAILWAY CO. (SP&S).  /1/  THE TWO OTHER LINE-HAUL
CARRIERS NOW SERVING PORTLAND-- THE CHICAGO, MILWAUKEE, ST. PAUL &
PACIFIC RAILROAD CO. (MILWAUKEE) AND THE SOUTHERN PACIFIC
TRANSPORTATION CO. (SP)-- SOUGHT TO BE INCLUDED AS JOINT PURCHASERS OF
PENINSULA UNDER SECS. 5(2)(B), (C), AND (D) OF THE ACT, 49 U.S.C.
5(2)(B), (C), AND (D), AND SOUGHT TRACKAGE RIGHTS LINKING THEIR LINES
WITH PENINSULA.  THIS APPEAL ARISES OUT OF THE COMMISSION'S DENIAL-- IN
DISAGREEMENT WITH ITS HEARING EXAMINER'S RECOMMENDATIONS-- OF THE
PETITIONS OF MILWAUKEE AND SP.  TOGETHER WITH THESE TWO RAILROADS, THE
PORT OF PORTLAND AND THE PUBLIC UTILITY COMMISSIONER OF OREGON APPEAL
FROM THE DECISION OF THE THREE-JUDGE DISTRICT COURT AFFIRMING, WITHOUT
OPINION, THE COMMISSIONER'S ORDER.  THE UNITED STATES JOINS THE
APPELLANTS IN URGING THAT THE JUDGMENT BELOW BE REVERSED, WHILE THE
COMMISSION JOINS BURLINGTON NORTHERN AND UP IN URGING AFFIRMANCE. 
PROBABLE JURISDICTION WAS NOTED.  401 U.S. 906 (1971). 

THE QUESTION WHETHER THE COMMISSION APPLIED THE CORRECT LEGAL
STANDARDS IS PRESENTED AGAINST THE BACKGROUND OF A COMPLEX FACTUAL
SITUATION-- THOUGH THIS IS NOT UNUSUAL IN THE CASE OF RAILWAY MERGERS
AND ACQUISITIONS-- AND WE FIND IT NECESSARY TO GO INTO DETAIL
CONCERNING THE FACTS AND THE PROCEEDINGS PRIOR TO THE SUBMISSION OF THE
CASE HERE. 

        I 

A. THE RIVERGATE AREA AND PENINSULA'S RELATION TO IT 

THE DEVELOPING RIVERGATE INDUSTRIAL DISTRICT OCCUPIES NEARLY 3,000
ACRES AT THE TIP OF THE PENINSULA FORMED BY THE CONFLUENCE OF THE
COLUMBIA AND WILLAMETTE RIVERS.  RIVERGATE'S SIX MILES OF WATERFRONT
WILL PROVIDE DOCKSITES FOR DIRECT DEEPWATER ACCESS TO THE PACIFIC
OCEAN.  THE PORT OF PORTLAND HAS EXPENDED MORE THAN FIVE MILLION
DOLLARS OF PUBLIC FUNDS FOR PLANNING, CONSTRUCTION, AND DEVELOPMENT,
AND IT IS ESTIMATED THAT ULTIMATE PUBLIC AND PRIVATE INVESTMENT IN
INDUSTRIAL AND PORT FACILITIES AT RIVERGATE WILL EXCEED 500 MILLION
DOLLARS. 

AS CONCEIVED BY ITS PUBLIC DEVELOPERS, THE RIVERGATE COMPLEX WILL BE
SERVED BY A DOMESTIC TRANSPORTATION NETWORK CAPABLE OF PROVIDING
EFFICIENT AND ECONOMICAL SERVICE TO AND FROM POINTS THROUGHOUT THE
NATION.  TO ACHIEVE THIS GOAL, THE PORT'S CONSULTANTS RECOMMENDED
CONSTRUCTION BY THE PORT OF AN INTERNAL RAIL LOOP THAT WOULD CONNECT
WITH EXISTING CARRIERS AT THE SOUTHWESTERN AND EASTERN CORNERS OF
RIVERGATE, THUS PROVIDING RIVERGATE INDUSTRIES WITH DIRECT ACCESS TO
ALL LINE-HAUL CARRIERS SERVING PORTLAND.  AT FULL DEVELOPMENT--
ESTIMATED TO BE 15 YEARS IN THE FUTURE-- RAIL TRAFFIC GENERATED BY
THESE INDUSTRIES IS EXPECTED TO REACH BETWEEN 500 AND 600 CARS PER DAY,
WITH A PROJECTED ANNUAL VOLUME OF FIVE MILLION TONS OF FREIGHT. 

AT PRESENT, EIGHT INDUSTRIES /2/  OCCUPY ABOUT ONE-TENTH OF THE
RIVERGATE AREA.  SEVEN OF THESE ARE LOCATED ON THE WEST, OR WILLAMETTE
RIVER, SIDE OF RIVERGATE, AND ARE SERVED BY TRACKS OWNED BY THE PORT OF
PORTLAND.  OUTSIDE RAIL ACCESS TO THIS PART OF RIVERGATE IS PROVIDED BY
TRACKS EXTENDING FROM UP'S BARNES YARD (POINT 9 OF THE SCHEMATIC MAP
APPENDED TO THIS OPINION) AND CONNECTING WITH THE PORT OF PORTLAND
TRACKS.  OVER THESE EXTERNAL TRACKS, JOINTLY OWNED BY UP AND BURLINGTON
NORTHERN, UP PROVIDES SWITCHING SERVICE TO THE LINE-HAUL CARRIERS
SERVING PORTLAND.  IT IS EXPECTED THAT THIS BARNES YARD ROUTE WILL
REMAIN THE SOUTHWEST ENTRANCE TO RIVERGATE. 

THE ONE OTHER RIVERGATE INDUSTRY-- THE POLEYARD OF THE CROWN
ZELLERBACH CORPORATION (POINT E ON THE MAP)-- IS LOCATED AT THE
EASTERNMOST EDGE OF RIVERGATE, ON THE COLUMBIA RIVER.  OUTSIDE RAIL
ACCESS IS PRESENTLY PROVIDED BY PENINSULA, WHICH SERVES, IN ADDITION,
13 INDUSTRIES LOCATED JUST SOUTHEAST OF THE RIVERGATE BOUNDARY. 
PENINSULA, ORGANIZED IN 1918 TO SERVE A PACKINGHOUSE FACILITY LONG
SINCE CLOSED, HAS A MAIN TRACK EXTENDING FOR ONLY 8,000 FEET ALONG THE
COLUMBIA RIVER.  AT ITS EASTERMOST END IS THE NORTH PORTLAND
INTERCHANGE (POINT 7 ON THE MAP), WHERE PENINSULA CONNECTS WITH LINES
OWNED BY BURLINGTON NORTHERN AND UP. SINCE THE LINES OF THESE TWO LINE
HAUL CARRIERS DO NOT CONNECT DIRECTLY WITH RIVERGATE IN THIS AREA,
ACCESS TO THE EASTERN END OF THE RIVERGATE DISTRICT IS, AT PRESENT,
SOLELY OVER PENINSULA TRACKS. 

WHETHER PENINSULA TRACKS WILL REMAIN THE SOLE ACCESS TO THE EASTERN
END OF RIVERGATE IS BY NO MEANS CERTAIN.  PENINSULA SUFFERS FROM
CERTAIN PHYSICAL LIMITATIONS-- ITS TRACKS ARE LAID UPON SAND, ITS
CLEARANCES ARE LIMITED, AND THE MAIN LINE IS IMPEDED BY HEAVY
CURVATURE.  FURTHERMORE, THE NORTH PORTLAND INTERCHANGE TRACKS MAY HAVE
INSUFFICIENT CAPACITY FOR THE EXPECTED RIVERGATE TRAFFIC.  ACCORDINGLY,
AN ALTERNATE ACCESS ROUTE TO THE EASTERN END OF RIVERGATE IS UNDER
CONSIDERATION, THAT IS, A NEW SPUR LEADING DIRECTLY TO RIVERGATE FROM
THE BURLINGTON NORTHERN MAIN NORTH-SOUTH TRACKS.  /3/ 

B. THE PROPOSED PURCHASE OF PENINSULA 

ALL OUTSTANDING CAPITAL STOCK OF PENINSULA IS OWNED BY THE UNITED
STOCKYARDS CORPORATION.  STOCKYARDS R. CO. CONTROL, 254 I.C.C. 207
(1943).  UNITED IS NOT ITSELF A CARRIER AND HAS NO INTEREST IN
CONTINUING TO OPERATE A RAILROAD INDEPENDENT OF ITS STOCKYARD
OPERATION.  IT HAS BEEN WILLING TO SELL PENINSULA AT THE APPRAISED
VALUE OF ITS CAPITAL STOCK, AND IT HAS NO PREFERENCE AS TO THE
PURCHASER.  ON FEBRUARY 28, 1967, UNITED ENTERED INTO AN AGREEMENT TO
SELL PENINSULA TO SP&S AND UP.  /4/ 

BY JOINT APPLICATION FILED WITH THE INTERSTATE COMMERCE COMMISSION
ON JULY 25, 1967, SP&S AND UP SOUGHT APPROVAL, UNDER SEC. 5(2) OF THE
INTERSTATE COMMERCE ACT, /5/  OF THEIR CONTRACTED PURCHASE OF PENINSULA
FROM UNITED STOCKYARDS.  THE APPLICATION POINTED OUT THAT THE
ACQUISITION WOULD ENABLE THE APPLICANTS TO PROVIDE RAIL SERVICE TO THE
ADJACENT RIVERGATE AREA OVER THE PENINSULA TRACKS.  PENINSULA, HOWEVER,
WOULD CONTINUE TO OPERATE AS A SEPARATE CARRIER.  NO MAJOR CHANGES IN
TRAFFIC OR REVENUES WERE ANTICIPATED IN THE IMMEDIATE FUTURE, THOUGH IT
WAS ANTICIPATED THAT "WITHIN THE FORESEEABLE FUTURE SUBSTANTIAL NEW
TRAFFIC AND REVENUES"  WOULD BE DERIVED FROM THE DEVELOPING RIVERGATE
AREA. 

IN RESPONSE TO THE ABOVE APPLICATION, MILWAUKEE AND SP FILED
PETITIONS SEEKING INCLUSION IN THE ACQUISITION OF PENINSULA AS JOINT
AND EQUAL OWNERS, PURSUANT TO SECS. 5(2)(B), (C), AND (D) OF THE ACT;
IN ADDITION, THEY SOUGHT THE RIGHT TO USE TRACKS NECESSARY TO CONNECT
THEIR OWN LINES WITH PENINSULA.  THE COMMISSION'S ACTION ON THESE
PETITIONS IS THE SUBJECT OF THE PRESENT APPEAL.  THE COMPETING
CONTENTIONS ARE CLOSELY RELATED TO THE FACTS OF THE INTERCONNECTIONS
BETWEEN THE FOUR LINE-HAUL CARRIERS NEAR RIVERGATE, AND TO THESE WE NOW
TURN. 

C. CARRIER INTERCONNECTIONS AND SWITCHING ARRANGEMENTS 

(1) THE NORTH PORTLAND INTERCHANGE 

AT THE NORTH PORTLAND INTERCHANGE (POINT 7 ON THE MAP), WHERE
PENINSULA CONNECTS WITH BURLINGTON NORTHERN AND UP, ARE FOUR
INTERCHANGE TRACKS.  TWO OF THESE ARE JOINTLY OWNED BY BURLINGTON
NORTHERN AND UP; THE REMAINING TWO ARE OWNED HALF BY PENINSULA, AND THE
OTHER HALF JOINTLY BY BURLINGTON NORTHERN AND UP.  ONLY ONE OF THESE
FOUR TRACKS-- ONE OF THE TWO JOINTLY OWNED BY BURLINGTON NORTHERN AND
UP-- CONNECTS DIRECTLY TO THE BURLINGTON NORTHERN DOUBLE MAIN-LINE
TRACKS, RUNNING TO THE NORTH ACROSS THE COLUMBIA RIVER.  IN ADDITION,
THE INTERCHANGE TRACKS CONNECT TO A SINGLE UP TRACK, WHICH EXTENDS
SOUTH THROUGH A MILE-LONG TUNNEL TO THE UP'S ALBINA YARD (POINT 6 ON
THE MAP), A DISTANCE OF 5.2 MILES.  /6/ 

AT THE TIME OF THE HEARING IN THIS CASE, ABOUT 30 CARS WERE HANDLED
DAILY SWITCHING BETWEEN THE PREDECESSORS OF BURLINGTON NORTHERN ON THE
ONE HAND AND UP AND ITS SUBSIDIARIES ON THE OTHER.  ONLY THE REMAINING
39% INVOLVED SWITCHING CARS DESIGNATED TO OR FROM INDUSTRIES SERVED BY
PENINSULA.  /7/  AS THE ONLY TWO LINE-HAUL CARRIERS CONNECTING DIRECTLY
WITH PENINSULA AT NORTH PORTLAND, BURLINGTON NORTHERN AND UP PROVIDE
RECIPROCAL SWITCHING TO ANY OTHER LINE-HAUL CARRIER WHOSE CARS ARE
DESIGNATED TO OR FROM INDUSTRIES SERVED BY PENINSULA.  /8/ 

(2) THE SOUTHERN PACIFIC CONNECTION 

ALTHOUGH SP IS A LINE-HAUL CARRIER SERVING PORTLAND, ITS TRACKS
TERMINATE IN EAST PORTLAND (POINT 5) AND AT THE HOYT STEET YARD ON THE
OTHER SIDE OF THE WILLAMETTE RIVER (POINT 3).  SP CARS DESIGNATED FOR
INDUSTRIES SERVED BY PENINSULA ARE GENERALLY SWITCHED TO UP TRAINS AT
THE LATTER'S ALBINA YARD (POINT 6) AND MOVED THENCE TO THE NORTH
PORTLAND INTERCHANGE, WHERE THEY ARE SWITCHED BY PENINSULA ITSELF TO
THEIR ULTIMATE DESTINATION.  ALTERNATIVELY, THE CARS MAY BE SWITCHED TO
SP&S TRAINS AT THE HOYT STREET YARD AND MOVED TO NORTH PORTLAND OVER
THE SP&S MAINLINE.  IN EITHER CASE, SP MUST PAY A SWITCHING CHARGE TO
BURLINGTON NORTHERN OR TO UP (WHICHEVER IS THE SWITCHING CARRIER), AND
THEN PAY A "RATE DIVISION" TO PENINSULA FOR ITS SWITCHING SERVICE.  /9/
THE PENINSULA RATE DIVISION IS ABSORBED BY ANY LINE-HAUL CARRIER
SUBJECT OT IT AND IS THUS NOT PASSED ON TO THE SHIPPER.  THE SP&S AND
UP SWITCHING CHARGES MAY BE ABSORBED BY A LINE-HAUL CARRIER IF A
MINIMUM LINE-HAUL REVENUE PER CAR IS EXCEEDED, AND SP HAS DONE SO,
EXCEPT ON CERTAIN LOW-RATED NONCOMPETITIVE TRAFFIC.  SP SHARED IN ABOUT
20% OF PENINSULA'S TRAFFIC IN 1966, AND IN ABOUT 17% IN 1967. 

(3) MILWAUKEE'S PRESENCE IN PORTLAND 

THROUGHOUT THE PROCEEDINGS BELOW, MILWAUKEE WAS NOT A LINE-HAUL
CARRIER SERVING PORTLAND.  ITS OWN TRACKS TERMINATE AT LONGVIEW,
WASHINGTON, 46 MILES NORTH OF PORTLAND, AND THROUGH ARRANGEMENTS WITH
SP&S IT SHARED IN ONLY ONE PERCENT OF PENINSULA'S TRAFFIC IN 1966 AND
1967.  HOWEVER, A BASIC CONDITION OF THE COMMISSION'S APPROVAL OF THE
MERGER OF THE GREAT NORTHERN RAILWAY CO., THE NORTHERN PACIFIC RAILWAY
COMPANY, AND THEIR AFFILIATES, INCLUDING SP&S, WAS THAT MILWAUKEE BE
MADE AN EFFECTIVELY COMPETITIVE TRANSCONTINENTAL CARRIER BY BEING
PERMITTED TO ENTER PORTLAND OVER THE LINES OF THE NEW COMPANY,
BURLINGTON NORTHERN.  /10/  CONDITION 24(A) OF THE MERGER REQUIRED THAT
BURLINGTON NORTHERN 

"SHALL GRANT TO THE MILWAUKEE, UPON SUCH FAIR AND REASONABLE TERMS
AS THE PARTIES MAY AGREE OR AS DETERMINED BY THIS COMMISSION IN THE
EVENT OF THEIR INABILITY TO AGREE, TRACKAGE RIGHTS TO OPERATE FREIGHT
TRAINS OVER (BURLINGTON NORTHERN) LINES BETWEEN LONGVIEW JUNCTION AND
PORTLAND, INCLUDING THE RIGHT TO SERVE ON AN EQUAL BASIS ALL PRESENT
AND FUTURE INDUSTRIES AT PORTLAND AND INTERMEDIATE POINTS AND THE USE
OF (BURLINGTON NORTHERN) FACILITIES AT PORTLAND NECESSARY FOR THE
SWITCHING OF TRAFFIC TO OTHER RAILROADS AND INDUSTRIES.  (BURLINGTON
NORTHERN) SHALL MAINTAIN PORTLAND AS AN OPEN GATEWAY ON A RECIPROCAL
BASIS WITH THE MILWAUKEE TO THE SAME EXTENT AS WITH OTHER CONNECTING
CARRIERS.  . . . "  331 I.C.C. 228, 357. 

PURSUANT TO CONDITION 24(A), MILWAUKEE COMMENCED SERVICE TO PORTLAND
ON MARCH 22, 1971.  /11/  SINCE THAT DATE, IT HAS PUBLISHED RATES
REFLECTING SINGLE-LINE SERVICE TO PORTLAND INDUSTRIES, INCLUDING THOSE
SERVED BY PENINSULA, BY ABSORBING THE RELEVANT SWITCHING CHARGES.  IT
HAS OPERATED ITS OWN LOCOMOTIVES OVER BURLINGTON NORTHERN LINES AS FAR
SOUTH AS THE HOYT STREET YARD ON THE WESTERN SIDE OF THE WILLAMETTE
RIVER (POINT 3).  IF MILWAUKEE IS NOT ALLOWED TO SWITCH CARS DIRECTLY
TO PENINSULA AT THE NORTH PORTLAND INTERCHANGE, MILWAUKEE CARS
DESIGNATED FOR INDUSTRIES ON PENINSULA WILL BE SWITCHED TO BURLINGTON
NORTHERN TRAINS AT VANCOUVER, ON THE NORTH SIDE OF THE COLUMBIA (POINT
8), AT THE HOYT STREET YARD (POINT 3), OR AT THE GUILD'S LAKE YARD
(POINT 2), AND MOVED THENCE TO PENINSULA.  /12/ 

D. MILWAUKEE AND SOURTHERN PACIFIC PLEADINGS BEFORE THE COMMISSION 

BY PETITION FILED AUGUST 23, 1967, MILWAUKEE SOUGHT INCLUSION IN THE
PROPOSED PURCHASE OF PENINSULA BY BURLINGTON NORTHERN (THEN SP&S) AND
UP.  SECTION 5(2)(D) OF THE INTERSTATE COMMERCE ACT AUTHORIZES THE
COMMISSION TO REQUIRE SUCH INCLUSION AS A PREREQUISITE TO ITS APPROVAL
OF THE PURCHASE "UPON A FINDING THAT SUCH INCLUSION IS CONSISTENT WITH
THE PUBLIC INTEREST."  AFTER FIRST SETTING OUT ITS IMPENDING ACCESS TO
PORTLAND OVER SP&S LINES BECAUSE OF THE NORTHERN LINES MERGER,
MILWAUKEE ALLEGED: 

     "THE INSTANT TRANSACTION, IF APPROVED BY THE COMMISSION
WITHOUT

  INCLUSION OF MILWAUKEE UPON THE TERMS STATED BELOW, WOULD HAVE

  THE EFFECT OF FORECLOSING MILWAUKEE DIRECT SERVICE TO ALL THE

  INDUSTRIES NOW OR IN THE FUTURE TO BE LOCATED ON THE LINES OF

  PENINSULA TERMINAL COMPANY. 

WITH       FIFTY PERCENT OF PENINSULA TERMINAL COMPANY STOCK IN THE
HANDS OF UNION PACIFIC RAILROAD

  COMPANY NOT A PARTY TO THE CONTRACT REFERRED TO ABOVE, MILWAUKEE
WILL NOT HAVE ANY RIGHT

  SIMILAR TO THAT SOUGHT BY APPLICANTS HEREIN . . . TO OPERATE OVER
OR OBTAIN TRACKAGE RIGHTS IN

  THE LINES OF PENINSULA TERMINAL COMPANY.  INDUSTRIES ON THE LINES
OF PENINSULA TERMINAL COMPANY

  WILL THUS BE DENIED THE SINGLE-LINE SERVICE OF MILWAUKEE TO SUCH
POINTS AS (VARIOUS WESTERN

  AND MIDWESTERN RAIL CENTERS SERVED BY MILWAUKEE), CONTRARY TO THE
PUBLIC

  INTEREST."  /13/  APP. 165.  ACCORDINGLY, THE MILWAUKEE SOUGHT
EQUAL INCLUSION WITH SP&S AND UP IN THE PURCHASE OF PENINSULA AND, IN
ADDITION, ASKED 

     "(THAT MILWAUKEE BE GRANTED THE RIGHT TO ACQUIRE TRACKAGE

  RIGHTS OVER INTERVENING CONNECTING TRACKAGE JOINTLY OWNED BY

  APPLICANTS, FROM SP&S MAIN LINE TO PENINSULA TERMINAL COMPANY'S

LINES UPON SUCH REASONABLE TERMS AND CONDITIONS, AND FOR SUCH

  CONSIDERATIONS, AS MILWAUKEE AND APPLICANTS MAY NEGOTIATE, OR,

  FAILING SUCH NEGOTIATIONS, UPON SUCH TERMS AND CONDITIONS AND FOR

  SUCH CONSIDERATION AS THE COMMISSION MAY FIND JUST AND

  REASONABLE."  /14/  APP. 166. 

ON DECEMBER 29, 1967, SP&S AND THE UP FILED REPLIES, ARGUING, INTER
ALIA:  (1) THAT EVEN IF CONDITION 24(A) WERE IMPLEMENTED, MILWAUKEE
WOULD STILL NOT CONNECT WITH PENINSULA BECAUSE OF THE INTERVENING NORTH
PORTLAND INTERCHANGE TRACKS, JOINTLY OWNED BY SP&S, UP, AND PENINSULA,
AND TRACKAGE RIGHTS OVER THESE TRACKS COULD NOT BE GRANTED TO THE
MILWAUKEE IN THIS PROCEEDING; AND (2) THAT JOINT OWNERSHIP OF PENINSULA
WITH THE MILWAUKEE COULD "LEAD TO A CUMBERSOME, CONFUSED AND DIVIDED
MANAGEMENT WITH RESULTING POLICY STALEMATES AND SERIOUS DETERIORATION
OF SERVICE." 

MILWAUKEE THEREUPON FILED A SUPPLEMENT TO ITS PETITION FOR
INCLUSION, STATING THAT 

"IN LIGHT OF THE REPLIES OF APPLICANTS HEREIN TO THE MILWAUKEE'S
PETITION FOR INCLUSION, THE MILWAUKEE ALLEGES THAT THE JOINT
APPLICATION HEREIN IS FOR THE PURPOSE OF BOTTLING UP THE MILWAUKEE AT
PORTLAND AND IMPAIR (SIC) ITS ABILITY TO PROVIDE A COMPETITIVE SERVICE
TO INDUSTRIES SERVED OR TO BE SERVED BY PENINSULA TERMINAL COMPANY
CONTRARY TO THE PUBLIC INTEREST AND THE PLAIN INTENT OF THE
COMMISSION'S (REPORT AND ORDER IN THE NORTHERN LINES MERGER CASE)." 
APP. 182.  ACCORDINGLY, THE MILWAUKEE ADDED TO ITS EARLIER PETITION BY
REQUESTING:

  THAT APPLICANTS BE REQUIRED TO GRANT MILWAUKEE TRACKAGE RIGHTS
OVER INTERVENING TRACKAGE AT

  NORTH PORTLAND CONNECTING WITH THE YARDS OF PENINSULA TERMINAL
COMPANY, BOTH AS A CONDITION TO

  PARTICIPATION IN OWNERSHIP OF PENINSULA TERMINAL COMPANY AND ALSO
UNDER SECTION 3(5) OF THE

  INTERSTATE COMMERCE ACT."  APP. 183.  WHETHER INTENTIONALLY OR
NOT, BY REQUESTING TRACKAGE RIGHTS UNDER SEC. 3(5), THE TEXT OF WHICH
APPEARS IN THE MARGIN, /15/  MILWAUKEE DIVORCED THE QUESTION OF ACCESS
TO PENINSULA FROM THE QUESTION OF INCLUSION IN THE OWNERSHIP OF
PENINSULA.  ANY TRACKAGE RIGHTS GRANTED IN CONNECTION WITH THE PETITION
FOR INCLUSION UNDER SEC. 5(2) WOULD BE CONTINGENT UPON SP&S' AND UP'S
DECIDING TO CONSUMMATE THE PURCHASE; TRACKAGE RIGHTS GRANTED UNDER SEC.
3(5), HOWEVER, WOULD BE INDEPENDENT OF THE PURCHASE. 

IN THE MEANTIME, BY AN AMENDED PETITION FILED NOVEMBER 29, 1967, SP
JOINED WITH THE MILWAUKEE IN SEEKING INCLUSION UNDER SEC. 5(2)(D) AS AN
EQUAL OWNER OF PENINSULA.  IT FURTHER REQUESTED THAT UP 

"BE REQUIRED TO GRANT PETITIONER BRIDGE TRACKAGE RIGHTS OVER (THE
UNION PACIFIC) MAIN LINE AND TERMINAL TRACKAGE BETWEEN PENINSULA
TERMINAL COMPANY AND THE SOUTHERN PACIFIC-UNION PACIFIC TRACK
CONNECTION AT EAST PORTLAND, ORE."  /16/  APP. 168.  IN RESPONSE TO
REPLIES THAT TRACKAGE RIGHTS TO EAST PORTLAND COULD NOT BE GRANTED IN A
SEC. 5(2) PROCEEDING, SP, UNLIKE MILWAUKEE, INITIATED SEPARATE
PROCEEDINGS UNDER SEC. 3(5) (DEC. 19, 1967).  IT SOUGHT ORDERS
REQUIRING SP&S AND UP TO ALLOW THE "COMMON USE OF PENINSULA TERMINAL
COMPANY," TOGETHER WITH BRIDGE TRACKAGE RIGHTS OVER UP LINES TO EAST
PORTLAND; ADDITIONALLY (OR, PRESUMABLY, ALTERNATIVELY), IT SOUGHT THE
"COMMON USE OF THE TERMINAL FACILITIES OF UNION PACIFIC BETWEEN
PENINSULA TERMINAL COMPANY AND . . . EAST PORTLAND, OREGON."  /17/ 

E. PROCEEDINGS BEFORE THE HEARING EXAMINER 

THE APPLICATIONS, PETITIONS, AND REPLIES OF THE FOUR LINE-HAUL
CARRIERS WERE REFERRED TO AN EXAMINER FOR HEARING UPON A CONSOLIDATED
RECORD.  THE PORT OF PORTLAND, THE PORTLAND COMMISSION OF PUBLIC DOCKS,
THE PUBLIC UTILITY COMMISSIONER OF OREGON, AND CROWN ZELLERBACH
CORPORATION INTERVENED IN FAVOR OF MILWAUKEE AND THE SP.  /18/  AT THE
HEARINGS IN FEBRUARY AND MARCH OF 1968, EVIDENCE WAS TAKEN FROM FIVE
SHIPPERS IN ADDITION TO CROWN ZELLERBACH, AS WELL AS OFFICERS AND
CONSULTANTS OF THE PARTIES AND INTERVENORS. 

ON SEPTEMBER 9, 1968, NEARLY A YEAR AFTER THE COMMISSION HAD
APPROVED THE NORTHERN LINES MERGER, THE HEARING EXAMINER ISSUED HIS
REPORT.  IN THE SEC. 5(2) PROCEEDING, HE RECOMMENDED APPROVAL OF THE
PURCHASE OF PENINSULA BY BURLINGTON NORTHERN AND UP, ON CONDITION (1)
THAT SP BE INCLUDED AS AN EQUAL OWNER AND (2) THAT MILWAUKEE BE
INCLUDED AS AN EQUAL OWNER UPON CONSUMMATION OF THE NORTHERN LINES
MERGER AND UPON MILWAUKEE'S COMMENCING OPERATIONS INTO PORTLAND.  /19/
THE EXAMINER FURTHER RECOMMENDED THAT IF THE PURCHASE WERE CONSUMMATED
ON THE ABOVE CONDITIONS, SP AND MILWAUKEE BE GRANTED 

"THE RIGHT OF ACCESS . . . TO PENINSULA TERMINAL COMPANY TRACKAGE
OVER INTERVENING NORTH PORTLAND INTERCHANGE TRACKS, AT NORTH PORTLAND,
OREG., PRESENTLY OWNED INDIVIDUALLY OR JOINTLY BY (PENINSULA, SP&S AND
NORTHERN PACIFIC, AND UP), UPON SUCH TERMS AND COMPENSATION FOR USE OF
SUCH INTERVENING TRACKAGE MUTUALLY AGREEABLE TO THE INTERESTED
CARRIERS, OR IN THE EVENT OF FAILURE TO AGREE, AS THE COMMISSION MAY
FIX AS JUST AND REASONABLE, TO BE ASCERTAINED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3(5) . . . . "  APP. 128-129 THE EXAMINER FOUND
THAT THIS RIGHT OF ACCESS "IS PRACTICABLE AND WOULD NOT SUBSTANTIALLY
IMPAIR THE ABILITY OF THE OWNING CARRIERS TO HANDLE THEIR BUSINESS." 
/20/  APP. 129. 

IN THE SEPARATE SEC. 3(5) PROCEEDINGS INITIATED BY SP, THE EXAMINER
ORDERED COMMON USE BY SP OF THE TRACKS AND FACILITIES OF UP FOR
OPERATION BETWEEN THE CONNECTION AT EAST PORTLAND AND THE TRACKS OF
PENINSULA AT NORTH PORTLAND, CONDITIONED, AGAIN, UPON COMPENSATION-TO
BE AGREED UPON BY THE PARTIES OR "JUST AND REASONABLE" AS FIXED BY THE
COMMISSION. 

IN HIS DISCUSSION OF THE ISSUES, THE HEARING EXAMINER FIRST
ANNOUNCED THAT HE WOULD TREAT THE ENTIRE AREA INVOLVED AS "ONE
TRANSPORTATION TERMINAL ENTITY."  ON THE SUBJECT OF INCLUSION IN THE
PURCHASE OF PENINSULA, HE ANNOUNCED: 

"EXISTING DISPARITY IN CHARGES AND TREATMENT OF TRAFFICE WITHIN THE
PORTLAND SWITCHING AREA IS CONVINCING EVIDENCE THAT THE GREATEST
ECONOMIC ADVANTAGE FOR EQUALITY OF SHIPPERS AND CARRIERS CAN BE
ACCOMPLISHED BEST BY EQUAL ACCESS AND OWNERSHIP.  THE MOST ECONOMICAL
AND FUNCTIONALLY MODERN TRANSPORTATION FACILITIES ARE ESSENTIAL TO
DEVELOPMENT OF RIVERGATE AND THE PORT OF PORTLAND.  LIMITATION OF
DIRECT ACCESS THERE TO TWO RAILROADS BARRING ON-LINE SOLICITATION AND
THE DIRECT DEVELPMENT INTERESTS OF THE OTHER RAILROADS SERVING THE
PORTLAND AREA IS CONTRARY TO AN ENVIRONMENT OF UNENCUMBERED DEVELOPMENT
AND THE ESTABLISHMENT OF A SOUND TRANSPORTATION SYSTEM.  . . . (DIRECT
ACCESS TO ALL THE CARRIERS WILL ENABLE SHIPPERS TO DEAL DIRECTLY WITH
ORIGINATING CARRIERS PROVIDING ON-LINE SERVICE TO MANY POINTS IN AREAS
NOT SERVED BY THE TWO INITIAL APPLICANTS.  SHIPPERS WOULD BENEFIT FROM
ELIMINATION OF SWITCHING CHARGES ASSESSED ON NON-COMPETITIVE TRAFFIC
WHERE ONE OF THE APPLICANTS NOW ACTS AS A SWITCHING CARRIER."  APP. 120
121. 

ON THE SUBJECT OF THE SP'S SEC. 3(5) APPLICATIONS, THE EXAMINER
FOUND THAT THE EVIDENCE WARRANTED A CONCLUSION THAT COMMON USE BY SP OF
UP TRACKAGE BETWEEN THE NORTH PORTLAND INTERCHANGE AND EAST PORTLAND
WAS "IN THE PUBLIC INTEREST, PRACTICABLE, AND WOULD NOT SUBSTANTIALLY
IMPAIR UP'S ABILITY TO HANDLE ITS OWN BUSINESS."  HE NOTED THE "ALMOST
INCREDIBLE 30-HOUR AVERAGE TRANSIT TIME REQUIRED FOR CAR MOVEMENTS
BETWEEN ALBINA YARD AND PENINSULA, A ROUND-TRIP DISTANCE OF ABOUT 10.4
MILES, INCLUDING ENGINE CHANGES, CAR INSPECTION, AND CAR CLASSIFICATION
AT ALBINA YARD."  WITH RESPECT TO THE DEVELOPING RIVERGATE COMPLEX, THE
EXAMINER WAS CONVINCED 

"THAT ACCESS THERETO BY OTHER LINE-HAUL CARRIERS WILL CREATE GREATER
INCENTIVE FOR IMPROVEMENT OF RAILROAD FACILITIES AND FOR ELIMINATION OF
PRESENT UNSATISFACTORY CONDITIONS IN THE INVOLVED AREA."  APP. 124. 

NOR DID THE EXAMINER THINK THAT JOINT OWNERSHIP AND ACCESS BY THE
FOUR LINE-HAUL RAILROADS IN PENINSULA AND THE PROPOSED TRACKAGE RIGHTS
TO SP WOULD CURTAIL COMPETITION. 

"TO THE CONTRARY, SHIPPERS IN THE INVOLVED AREA WOULD BE AFFORDED
FREE DIRECT ACCESS TO ALL THE LINE-HAUL CARRIERS' SERVICES.  AMONG
OTHER THINGS, IT WOULD PLACE TRAFFIC MOVEMENTS BETWEEN THE PORTLAND
AREA, ON THE ONE HAND, AND, ON THE OTHER, ON-LINE POINTS OF CARRIERS IN
CALIFORNIA AND STATES EAST THEREOF, ON A MORE COMPETITIVE BASIS WITH
MOVEMENTS BETWEEN THOSE POINTS OVER THE LINES OF UP AND (BURLINGTON
NORTHERN).  . . . ALSO, MILWAUKEE WOULD BECOME MORE COMPETITIVE WITH UP
AND (BURLINGTON NORTHERN) AND THEIR CONNECTIONS IN PROVIDING SERVICE TO
THE NORTH AND EAST OF PORTLAND.  THE AUTHORIZATIONS, GENERALLY, WOULD
RESULT IN IMPROVED COMPETITIVE SERVICE AND THE FOSTERING OF SOUND
TRANSPORTATION IN THE INVOLVED AREA."  APP. 125. 

FINALLY, THE EXAMINER DID NOT GRANT SP'S APPARENT APPLICATION,
PURSUANT TO SEC. 3(5), FOR TRACKAGE RIGHTS OVER PENINSULA ITSELF.  HE
CONCLUDED HIS DISCUSSION WITH THE WORDS: 

"IN EVENT THE PARTIES ELECT NOT TO CONSUMMATE THE PURCHASE (OF
PENINSULA) RECOMMENDED HEREIN FURTHER PETITIONS BY THESE CARRIERS
REQUESTING ACCESS TO AND OPERATION OVER TRACKAGE OF PENINSULA PURSUANT
TO SECTION 3(5) OF THE ACT MAY BE FILED.  JURISDICTION WILL BE RETAINED
FOR THAT PURPOSE."  /21/  APP. 127. 

F. THE DECISION OF THE INTERSTATE COMMERCE COMMISSION 

BURLINGTON NORTHERN AND UP FILED EXCEPTIONS TO THE HEARING
EXAMINER'S RECOMMENDATIONS.  THEY CONTENDED, INTER ALIA, (1) THAT UNDUE
EMPHASIS WAS PLACED ON THE FUTURE DEVELOPMENT OF RIVERGATE, (2) THAT
THE HEARING EXAMINER ERRONEOUSLY HELD THE PORTLAND TERMINAL AREA TO
CONSTITUTE ONE TERMINAL ENTITY, (3) THAT THE EVIDENCE DOES NOT SUPPORT
A FOUR-WAY OWNERSHIP OF PENINSULA, EITHER FROM A GENERAL PUBLIC OR A
SHIPPER STANDPOINT, (4) THAT CONDITION 24(A) DID NOT GRANT MILWAUKEE
ACCESS TO PENINSULA, AND (5) THAT NEITHER USE OF THE NORTH PORTLAND
INTERCHANGE TRACKS BY MILWAUKEE AND SP, NOR COMMON USE BY THE SP OF UP
TRACKAGE BETWEEN NORTH PORTLAND AND EAST PORTLAND, WAS IN THE PUBLIC
INTEREST.  /22/ 

ON JUNE 6, 1969, DIVISION 3 OF THE INTERSTATE COMMERCE COMMISSION
ISSUED ITS OPINION.  334 I.C.C. 419.  THOUGH IT APPROVED THE
ACQUISITION OF PENINSULA BY SP&S AND UP, IT OTHERWISE REJECTED THE
HEARING EXAMINER'S RECOMMENDATIONS AND DENIED THE PETITIONS AND
APPLICATIONS FILED BY MILWAUKEE AND SP.  THE FOLLOWING CONDITIONS WERE
IMPOSED UPON THE ACQUISITION, "TO PROTECT THE PRESENT ROUTINGS AND
INTERCHANGES" OF PENINSULA: 

     "1.  UNDER THE CONTROL OF SP&S AND UP, PENINSULA SHALL
MAINTAIN

  AND KEEP OPEN ALL ROUTES AND CHANNELS OF TRADE VIA EXISTING

  JUNCTIONS AND GATEWAYS, UNLESS AND UNTIL OTHERWISE AUTHORIZED BY

  THE COMMISSION; 

      "2.  THE PRESENT NEUTRALITY OF HANDLING INBOUND AND OUTBOUND

  TRAFFIC TO AND FROM PENINSULA BY SP&S AND UP SHALL BE CONTINUED

  SO AS TO PERMIT EQUAL OPPORTUNITY FOR SERVICE TO AND FROM ALL

  LINES REACHING PENINSULA THROUGH SP&S AND UP WITHOUT

  DISCRIMINATION AS TO ROUTING OR MOVEMENT OF TRAFFIC, AND WITHOUT

  DISCRIMINATION IN THE ARRANGEMENTS OF SCHEDULES OR OTHERWISE;

     "3.  THE PRESENT TRAFFIC AND OPERATING RELATIONSHIPS EXISTING

  BETWEEN PENINSULA, ON THE ONE HAND, AND, ALL LINES REACHING

  PENINSULA THROUGH THE LINES OF SP&S AND UP, ON THE OTHER, SHALL

  BE CONTINUED INSOFAR AS SUCH MATTERS ARE WITHIN THE CONTROL OF

  SP&S AND UP; 

     "4.  PENINSULA, SP&S AND/OR UP SHALL ACCEPT, HANDLE, AND

  DELIVER ALL CARS INBOUND, LOADED AND EMPTY, WITHOUT

  DISCRIMINATION IN PROMPTNESS OR FREQUENCY OF SERVICE IRRESPECTIVE

  OF DESTINATION OR ROUTE OF MOVEMENT; 

     "5.  PENINSULA, SP&S AND/OR UP SHALL NOT DO ANYTHING TO

  RESTRAIN OR CURTAIL THE RIGHT OF INDUSTRIES, NOW LOCATED ON

  PENINSULA, TO ROUTE TRAFFIC OVER ANY AND ALL EXISTING ROUTES AND

  GATEWAYS; 

     "6.  PENINSULA, SP&S AND/OR UP SHALL REFRAIN FROM CLOSING ANY

  EXISTING ROUTE OR CHANNEL OF TRADE WITH SP OR MILWAUKEE ON

ACCOUNT OF THE (AUTHORIZED PURCHASE OF PENINSULA), UNLESS AND

  UNTIL AUTHORIZED BY THIS COMMISSION; 

     "7.  CONSUMMATION OF (THE AUTHORIZED PURCHASE OF PENINSULA)

  SHALL CONSTITUTE ASSENT BY THE CORPORATE PARENTS OF SP&S, THE

MEMBERS OF THEIR RESPECTIVE SYSTEMS, AND ANY CARRIER RESULTING

  FROM CONSUMMATION OF THE NORTHERN LINES CASE, TO BE BOUND BY

  THESE CONDITIONS TO THE SAME EXTENT THAT SP&S IS BOUND BY THESE

  CONDITIONS; AND 

     "8.  ANY PARTY OR PERSON HAVING AN INTEREST IN THE SUBJECT

  MATTER MAY AT ANY FUTURE TIME MAKE APPLICATION FOR SUCH

  MODIFICATION OF THE ABOVE-STATED CONDITIONS, OR ANY OF THEM, AS

  MAY BE REQUIRED IN THE PUBLIC INTEREST, AND JURISDICTION WILL BE

  RETAINED TO REOPEN THE PROCEEDING ON OUR OWN MOTION FOR THE SAME

  PURPOSE."  334 I.C.C.,AT 436-437. 

II 

A. "DIRECT ACCESS" 

AS A READING OF PART I REVEALS, THERE SEEMS TO HAVE BEEN A CERTAIN
AMOUNT OF CONFUSION BELOW AS TO WHETHER OR NOT ACTUAL OPERATION OVER
THE MAIN TRACKS OF PENINSULA BY ANY OF THE FOUR LINE-HAUL CARRIERS WAS
AT ISSUE IN THIS CASE.  EARLY IN THE COMMISSION'S DISCUSSION OF THE
MERITS, FOR EXAMPLE, IT SAID: 

"(WE FIND THAT SINCE NEITHER SP NOR MILWAUKEE NOW CONNECT WITH
PENINSULA, AND HAVE NEVER CONNECTED WITH IT IN THE PAST, THEIR DIRECT
SERVICE TO PENINSULA'S INDUSTRIES OVER THE OBJECTIONS OF SP&S AND UP
WOULD CONSTITUTE A NEW OPERATION AND AN INVASION OF THE JOINT
APPLICANT'S TERRITORY."  334 I.C.C.,AT 433.  LAYING ASIDE THE
SUBSTANTIVE POLICY INVOLVED IN THIS STATEMENT, WE DO NOT SEE HOW THE
ITALICIZED WORDS CAN REFER TO ANYTHING BUT PHYSICAL OPERATION OVER
TRACKS WHOLLY OWNED BY PENINSULA.  YET, AS WE HAVE ALREADY SEEN SUPRA,
AT 828-829, AND N. 20, AND 832 N. 21, THE HEARING EXAMINER DID NOT
RECOMMEND THE GRANTING OF SUCH TRACKAGE RIGHTS TO MILWAUKEE AND SP; AND
NEITHER OF THESE TWO RAILROADS FILED EXCEPTIONS TO THE HEARING
EXAMINER'S REPORT REQUESTING SUCH RIGHTS.  AS FOR BURLINGTON NORTHERN
AND UP, THE THIRD CONDITION WHICH THE COMMISSION IMPOSED ON THEIR
PURCHASE OF PENINSULA (QUOTED SUPRA, AT 833) SEEMS TO ACKNOWLEDGE THAT
PENINSULA WILL CONTINUE TO OPERATE AS A SEPARATE RAILROAD, HANDLING ALL
THE SWITCHING FROM INDUSTRIES LOCATED UPON ITS LINES TO THE NORTH
PORTLAND INTERCHANGE TRACKS. 

THIS MATTER WAS NOT RESOLVED BEFORE THIS COURT.  THE BRIEFS FILED BY
THE APPELLANTS AND BY THE UNITED STATES CONTAIN MANY REFERENCES TO
"DIRECT ACCESS" BY THE LINE-HAUL CARRIERS TO PENINSULA AND RIVERGATE,
AGAIN STRONGLY SUGGESTING PHYSICAL OPERATION OVER PENINSULA TRACKS. 
THE COMMISSION ARGUES THAT PHYSICAL OPERATION ON THE PART OF BURLINGTON
NORTHERN AND UP IS NOT AT ISSUE, BECAUSE OWNERSHIP ALONE-- ALL THAT
THESE TWO RAILROADS SEEK-- GIVES NO RIGHT TO OPERATE OVER THE TRACKS OF
THE PURCHASED RAILROAD.  BRIEF FOR INTERSTATE COMMERCE COMMISSION 23 N.
15; TR. OF ORAL ARG. 30.  MILWAUKEE DENIES THAT IT EVER SOUGHT "TO
SWITCH CARS TO PENINSULA INDUSTRIES WITH ITS OWN ENGINES AND CREWS,"
SUPPLEMENTAL BRIEF FOR APPELLANT MILWAUKEE 34, BUT NO SIMILARLY DIRECT
STATEMENT HAS BEEN FORTHCOMING FROM SP. 

WE HAVE SET FORTH BUT ONE OF THE CONFUSIONS-- FACTUAL AND PROCEDURAL--
THAT PLAGUE THIS CASE.  SUCH CONFUSIONS MIGHT HAVE BEEN RESOLVED BEFORE
THE CASE REACHED US HAD THE THREE-JUDGE COURT THAT INITIALLY REVIEWED
THESE ORDERS WRITTEN AN OPINION. 

B. THE PETITIONS FOR INCLUSION 

(1) CONDITION 24(A) 

MILWAUKEE AND THE UNITED STATES ARGUED AT LENGTH BEFORE THIS COURT
THAT CONDITION 24(A) OF THE NORTHERN LINES MERGER BY ITSELF REQUIRES
THAT MILWAUKEE BE INCLUDED IN THE PURCHASE OF PENINSULA.  THE
COMMISSION CONSIDERED THIS POINT AT THE VERY START OF ITS DISCUSSION OF
THE MERITS AND STATED THAT MILWAUKEE'S PETITION FOR INCLUSION COULD NOT
BE VIEWED 

"AS PART OF THE GENERAL REALIGNMENT OF WESTERN RAILROAD COMPETITION
RESULTING FROM THE COMMISSION'S APPROVAL OF THE NORTHERN LINES MERGER. 
CONDITION NO. 24 . . . IS APPLICABLE ONLY TO NORTHERN LINES TRACKAGE
AND TERRITORY.  THE CONDITION IS SILENT WITH RESPECT TO TRACKAGE AND
TERRITORY IN WHICH OTHER CARRIERS, SUCH AS UP, HAVE A JOINT INTEREST
AND THE EFFECT OF THE CONDITION UPON SUCH JOINT TRACKAGE AND TERRITORY
WAS NOT PRESENTED TO, NOR CONSIDERED BY, THE COMMISSION.  FURTHERMORE,
. . . THE PURCHASE OF PENINSULA BY THE JOINT APPLICANTS WAS NOT WITHIN
THE CONTEMPLATION OF THE COMMISSION AT THE TIME CONDITION N. 24 WAS
IMPOSED.  . . . ACCORDINGLY, WE CONSIDER THE PETITION OF MILWAUKEE
UNDER THE SAME PUBLIC INTEREST CRITERIA AS THE PETITION AND
APPLICATIONS OF SP, RATHER THAN AS A PETITION TO CARRY OUT THE
PROVISIONS OF CONDITION NO. 24.  /10/  "  334 I.C.C.,AT 432.  IN ITS
FOOTNOTE 10, HOWEVER, THE COMMISSION SAID: 

     "UPON COMPLETION OF LITIGATION IN THE NORTHERN LINES CASE AND

  CONSUMMATION OF THAT MERGER, MILWAUKEE MAY WISH TO SEEK RELIEF

  FROM THE COMMISSION IN THAT PROCEEDING TO DETERMINE THE

  RELATIONSHIP OF CONDITION NO. 24, IF ANY, TO PENINSULA'S TRACKS

  WHICH WOULD AT THAT TIME BE PARTIALLY OWNED BY THE NORTHERN

  LINES."  IBID. 

THIS SUGGESTION THAT THE COMMISSION MIGHT CONSIDER ANEW THE EFFECT
OF CONDITION 24(A) UPON JOINTLY OWNED TRACKS LEAVES US IN DOUBT WHETHER
AT THIS POINT IT HAS MADE A FINAL DETERMINATION ON THE APPLICABILITY OF
THE CONDITION, OR SIMPLY A DETERMINATION THAT THE QUESTION SHOULD BE
RAISED IN A DIFFERENT PROCEEDING.  WE DO NOT FIND IT NECESSARY,
HOWEVER, TO RESOLVE THIS DOUBT AND TO RULE UPON THE NARROW QUESTION
WHETHER CONDITION 24(A) ALONE REQUIRES THAT MILWAUKEE BE INCLUDED IN
THE PURCHASE OF PENINSULA.  NO ONE DISPUTES THAT THE CONDITION HAD ONE
CLEAR MEANING-- THAT MILWAUKEE WOULD BE PERMITTED TO RUN ITS TRAINS
INTO PORTLAND OVER BURLINGTON NORTHERN-SP&S TRACKS.  THE COMMISSION
TOOK THIS AS ITS STARTING POINT AND WENT ON TO DISCUSS THE MERITS OF
BOTH MILWAUKEE'S AND SP'S PETITIONS FOR INCLUSION.  WE FIND, FOR THE
REASONS THAT WILL APPEAR BELOW, THAT THE COMMISSION TOOK TOO NARROW A
VIEW OF THE "PUBLIC INTEREST" AND WE ARE IN DISAGREEMENT WITH ITS SEC.
5(2) ORDER. 

(2) EVALUATING THE PUBLIC INTEREST 

AS AN INITIAL MATTER, THE COMMISSION LIMITED ITS ATTENTION TO
PENINSULA ALONE, RATHER THAN CONSIDERING THE "ENTIRE PORTLAND AREA" AS
"ONE TRANSPORTATION TERMINAL ENTITY," AS THE HEARING EXAMINER HAD. 
APPELLANTS CONTEND THAT THIS VERY FIRST STEP WAS ERROR, BUT WE THINK IT
WISE TO EVALUATE THE COMMISSION'S APPROACH AS A WHOLE. 

A FAIR SUMMARY OF THE COMMISSION'S ANALYSIS APPEARS IN THE LAST
PARAGRAPH OF ITS DISCUSSION OF THE PETITIONS FOR INCLUSION.  THERE IT
CONCLUDES: 

"THE ADVERSE EFFECT ON SP&S AND UP, AND THE SHIPPERS DEPENDENT UPON
THEM FOR SERVICE, OF ADMITTING SP AND MILWAUKEE INTO OWNERSHIP AND
CONTROL OF PENINSULA, WOULD OUTWEIGH ANY ADVANTAGE ACCRUING TO SP,
MILWAUKEE, AND THE RIVERGATE INDUSTRIES OF FOUR-RAILROAD OWNERSHIP.  WE
CANNOT FIND, THEREFORE, THAT INCLUSION OF SP AND MILWAUKEE IN THE TITLE
PROCEEDING WOULD CONSTITUTE A JUST AND REASONABLE TERM, CONDITION, OR
MODIFICATION OF THE AUTHORITY REQUESTED BY THE JOINT APPLICANTS."  334
I.C.C.,AT 435.  IN THE PRECEDING PARAGRAPHS, THE COMMISSION HAD
SUMMARIZED THE EVIDENCE PRESENTED BY THE THREE SHIPPERS LOCATED IN
RIVERGATE THAT HAD SUPPORTED SP'S PETITION AND APPLICATION; IT
CONCLUDED THAT THIS EVIDENCE FAILED TO ESTABLISH THAT BENEFITS WOULD
ACCRUE FROM FOUR-RAILROAD OWNERSHIP OF PENINSULA.  NO MENTION WAS MADE
OF EVIDENCE THAT TENDED TO ESTABLISH THAT "SHIPPERS DEPENDENT UPON"
SP&S AND UP WOULD SUFFER FROM SUCH OWNERSHIP.  IT IS APPARENT,
THEREFORE, THAT THE DOMINANT FACTOR IN THE COMMISSION'S ANALYSIS,
OUTWEIGHING ANY ADVANTAGE ACCRUING TO SP AND MILWAUKEE FROM FOUR
RAILROAD OWNERSHIP, WAS THE "ADVERSE EFFECT ON SP&S AND UP"; WE MUST
EXAMINE NOW THE MANNER IN WHICH THE COMMISSION CHARACTERIZED THIS
"ADVERSE EFFECT." 

FIRST, THE COMMISSION SAID: 

"(WE FIND THAT SINCE NEITHER SP NOR MILWAUKEE NOW CONNECT WITH
PENINSULA, AND HAVE NEVER CONNECTED WITH IT IN THE PAST, THEIR DIRECT
SERVICE TO PENINSULA'S INDUSTRIES OVER THE OBJECTIONS OF SP&S AND UP
WOULD CONSTITUTE A NEW OPERATION AND AN INVASION OF THE JOINT
APPLICANTS') TERRITORY."  ID., AT 433.  WE HAVE ALREADY OBSERVED THAT
HIS PASSAGE SUGGESTS DIRECT PHYSICAL OPERATION OVER THE MAIN TRACK OF
PENINSULA, A MATTER THAT APPEARS NOT TO BE DIRECTLY AT ISSUE IN THIS
CASE.  BUT IT MAY ALSO REFER TO THE TRACKAGE RIGHTS SOUGHT BY MILWAUKEE
AND SP, AS A CONDITION TO THE PURCHASE, WHICH WOULD PERMIT THEM TO
CONNECT DIRECTLY WITH PENINSULA, SO THE COMMISSION'S FURTHER TREATMENT
OF THIS POINT IS RELEVANT: 

"IN THE PAST, THE COMMISSION HAS USUALLY HELD THAT SOUND ECONOMIC
CONDITIONS IN THE TRASPORTATION INDUSTRY REQUIRE THAT A RAILROAD NOW
SERVING A PARTICULAR TERRITORY SHOULD NORMALLY BE ACCORDED THE RIGHT TO
TRANSPORT ALL TRAFFIC THEREIN WHICH IT CAN HANDLE ADEQUATELY,
EFFICIENTLY, AND ECONOMICALLY, BEFORE A NEW OPERATION SHOULD BE
AUTHORIZED.  THIS CONCLUSION IS APPLICABLE NOT ONLY WITH RESPECT TO
EXISTING TRAFFIC BUT ALSO WITH RESPECT TO POTENTIAL TRAFFIC.  . . . SEE
MINNEAPOLIS, ST. P. & S.S.M.R. CO. ACQUISITION, 295 I.C.C. 787, 802
(1958), AND CASES CITED THEREIN."  IBID. 

THIS PASSAGE APPEARS TO ANNOUNCE THE PRINCIPLE THAT IN CONSIDERING
PETITIONS FOR INCLUSION IN PROPOSED PURCHASES OR MERGERS UNDER SEC.
5(2), WITH ACCOMPANYING TRACKAGE RIGHTS, THE DOMINANT POLICY IS
PRESERVATION OF THE MARKET SHARES OF THE RAILROADS ALREADY SERVING THE
LOCATION IN QUESTION, SO LONG AS THOSE RAILROADS PROVIDE REASONABLY
ADEQUATE SWITCHING SERVICE TO OTHER CARRIERS IN THE AREA.  WHATEVER
DOUBTS WE MIGHT HAVE, EITHER AS TO THE PRINCIPLE ITSELF OR ITS
APPLICATION TO THIS CASE, ARE REMOVED BY THE CRITICAL PARAGRAPH THAT
IMMEDIATELY FOLLOWS THE SENTENCES JUST QUOTED:

     "AS SHOWN IN THE APPENDIX, SP SHARED, THROUGH CONNECTIONS AND

  USE OF JOINT RATES AND ROUTES, IN ONLY ABOUT 20 PERCENT OF

  PENINSULA'S TRAFFIC DURING 1966, AND ONLY ABOUT 17 PERCENT DURING

  1967.  MILWAUKEE'S SHARE, ALSO VIA CONNECTIONS AND JOINT RATES

  AND ROUTES, AMOUNTED TO ONLY 1 PERCENT DURING THOSE YEARS. 

PERMITTING SP AND MILWAUKEE TO ACQUIRE ACCESS TO, AND EQUAL

 OWNERSHIP OF, PENINSULA AND THEREFORE PARTICIPATE IN ITS EXISTING

  TRAFFIC ON A DIRECT HAUL BASIS WILL, OF COURSE, ALLOW THOSE TWO

  RAILROADS TO INCREASE THEIR SHARE OF PENINSULA'S DECLINING

  TRAFFIC (3,640 LOADED CARS HANDLED IN 1966 AND 2,748 HANDLED IN

  1967).  THESE INCREASED SHARES OF SP AND MILWAUKEE COULD NOLY BE

  AT THE EXPENSE OF THE JOINT APPLICANTS AND THE RAILWAY EMPLOYEES

  WHOSE JOBS WOULD BE ELIMINATED BY THE DIRECT SERVICE PLANNED BY

  SP AND MILWAUKEE."  IBID. 

THIS DISCUSSION STRIKES US AS INITIALLY MISDIRECTED BECAUSE IT
IGNORES THE PROSPECTIVE PRESENCE OF MILWAUKEE IN THIS AREA.  IN 1966
AND 1967, MILWAUKEE TRAINS WERE STILL RUNNING NO CLOSER TO PORTLAND
THAN LONGVIEW, WASHINGTON, 46 MILES AWAY.  ALL THROUGH THE COMMISSION
PROCEEDINGS, HOWEVER, IT WAS ASSUMED BY ALL CONCERNED THAT PURSUANT TO
CONDITION 24(A) OF THE NORTHERN LINES MERGER, MILWAUKEE WOULD SOON BE
OPERATING DIRECTLY INTO PORTLAND OVER BURLINGTON NORTHERN TRACKS, AS IT
IS TODAY.  GRANTED THAT MILWAUKEE HAD ONLY 1% OF PENINSULA'S TRAFFIC IN
1966 AND 1967, THE COMMISSION POINTED TO NO EVIDENCE THAT THE MILWAUKEE
SHARE WOULD CONTINUE TO BE THIS SMALL AFTER AFFIRMANCE OF THE NORTHERN
LINES MERGER. 

THE NEXT DIFFICULTY WITH THE COMMISSION'S APPROACH RELATES TO THE
POTENTIAL GROWTH OF PENINSULA TRAFFIC.  THE RAISON D'ETRE OF THIS
LITIGATION HAS BEEN THE POSSIBILITY THAT PENINSULA WOULD BECOME THE
NORTHERN ACCESS TO RIVERGATE.  AS WE HAVE ALREADY NOTED, THIS
POSSIBILITY MAY BE REMOTE, GIVEN THE PHYSICAL LIMITATIONS OF
PENINSULA'S PRESENT FACILITIES.  BUT THE COMMISSION NOWHERE STATES THAT
THE POSSIBILITY IS TOO SPECULATIVE TO BE CONSIDERED IN THIS
LITIGATION.  THE PARAGRAPH WE HAVE JUST QUOTED, THEN, READS STRANGELY
INDEED; FOR IF PENINSULA BECOMES THE NORTHERN ROUTE INTO RIVERGATE, THE
ESTIMATES WE HAVE BEEN GIVEN INDICATE THAT DAILY TRAFFIC OVER ITS LINE
WOULD INCREASE FROM THE 1967 RATE OF 30 CARS PER DAY TO OVER 300 CARS
PER DAY, ASSUMING THAT A ROUGHLY EQUAL NUMBER OF CARS GO OUT OVER EACH
OF THE NORTHERN AND SOUTHERN ROUTES FROM RIVERGATE.  YET ACCORDING TO
THE PRINCIPLE ANNOUNCED BY THE COMMISSION, THE PUBLIC INTEREST REQUIRES
THAT BURLINGTON NORTHERN'S AND UP'S 80% SHARE OF THIS POTENTIALLY
ENORMOUS TRAFFIC BE PROTECTED.     SUCH AN APPROACH SEEMS TO US TO FLY
IN THE FACE OF THE WELL-SETTLED PRINCIPLE THAT THE COMMISSION IS
OBLIGATED TO CONSIDER THE ANTICOMPETITIVE EFFECTS OF ANY SEC. 5(2)
TRANSACTION.  MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 83-87
(1944); NORTHERN LINES MERGER CASES, 396 U.S. 491, 511-516 (1970).  IT
IS NOT NECESSARY TO INVOKE THE PRECISE TERMS OF CONDITION 24(A) AND
DECIDE THEIR APPLICABILITY TO THIS CASE, TO TAKE COGNIZANCE OF THE FACT
THAT PRIOR TO THE NORTHERN LINES MERGER, MILWAUKEE WAS A WEAK CARRIER
IN THE NORTHERN TIER OF STATES.  NORTHERN LINES MERGER CASES, 396
U.S.,AT 504, 514-516.  CONDITION 24(A) WAS NOT INTENDED TO FORECLOSE
CONSIDERATION OF MILWAUKEE'S COMPETITIVE POSITION VIS-A-VIS BURLINGTON
NORTHERN IN ANY OTHER PROCEEDING.  BOTH MILWAUKEE AND SP WERE ENTITLED
TO EXPLICIT CONSIDERATION OF THEIR ECONOMIC POSITIONS AS COMPARED WITH
THAT OF BURLINGTON NORTHERN AND UP OR, AT LEAST, A CLEAR STATEMENT WHY
SUCH AN INQUIRY WAS NOT APPROPRIATE. 

EVEN THE ONCE CASE CITED BY THE COMMISSION IN SUPPORT OF ITS GENERAL
PRINCIPLE, MINNEAPOLIS, ST. P. & S.S.M.R. CO. ACQUISITION, 295 I.C.C.
787, 802 (1958), UNDERCUTS THE COMMISSION'S REASONING.  THERE, THE
COMMISSION DENIED APPLICATIONS OF OTHER LINES FOR PERMISSION TO ACQUIRE
TRACKS AND TO UNDERTAKE NEW CONSTRUCTION IN TERRITORY TRADITIONALLY
SERVED BY THE CHICAGO & NORTH WESTERN RAILWAY CO.; THE LATTER'S
ECONOMIC VULNERABILITY MADE PRESERVATION OF ITS EXCLUSIVE TERRITORY
IMPORTANT TO THE PUBLIC INTEREST. 

THERE IS NO INDICATION IN THE PRESENT CASE THAT BURLINGTON NORTHERN
AND UP ARE ECONOMICALLY VULNERABLE, OR THAT THEY IN ANY WAY NEED THEIR
PRESENT SHARE OF PENINSULA TRAFFIC TO SERVE THE PUBLIC INTEREST.  WE
ARE CONFRONTED WITH TWO RAILROADS THAT ALREADY CONTROL ONE ACTUAL ROUTE
INTO RIVERGATE (VIA BARNES YARD) AND ONE POTENTIAL ROUTE (ANY SPUR
LEADING OFF THE BURLINGTON NORTHERN-SP&S MAIN-LINE TRACKS), AND THAT
NOW SEEK TO ACQUIRE, FOR THEMSELVES ALONE, THE ONE REMAINING ROUTE. 
THE COMMISSION'S ENTIRE DISCUSSION OF THE ANTICOMPETITIVE ASPECTS OF
THIS ACQUISITION CAN BE SUMMED UP AS FOLLOWS:  TO THE EXTENT THAT SP
AND MILWAUKEE MAY GAIN BY FOUR-RAILROAD OWNERSHIP OF PENINSULA,
BURLINGTON NORTHERN AND UP WILL LOSE; THEREFORE THE PETITIONS FOR
INCLUSION ARE DENIED.  WE DO NOT APPROVE THIS APPROACH TO THE CASE. 

DESPITE WHAT WE HAVE SAID ABOUT THE COMMISSION'S APPARENT REASONING,
IT DOES NOT NECESSARILY FOLLOW THAT THE RESULT IT REACHED WAS
INCORRECT.  GIVEN THE UNCERTAINTY ABOUT THE NORTHERN ACCESS TO
RIVERGATE, AND GIVEN THE APPARENT FACT THAT PHYSICAL OPERATION OVER
PENINSULA AND INTO RIVERGATE WAS NOT AT ISSUE, APPROVAL OF THE PURCHASE
BY BURLINGTON NORTHERN AND UP ALONE, WITH THE EIGHT ATTACHED
CONDITIONS, MAY BE THE RESULT MOST IN THE PUBLIC INTEREST AT THE
PRESENT TIME.  WE NOTE THAT THE COMMISSION RETAINED JURISDICTION OVER
THE PROCEEDINGS. 

BUT IT IS NOT THE ROLE OF THIS COURT TO ARRIVE AT ITS OWN
DETERMINATION OF THE PUBLIC INTEREST ON THE FACTS OF THIS CASE.  OUR
APPELLATE FUNCTION IN ADMINISTRATIVE CASES IS LIMITED TO CONSIDERING
WHETHER THE ANNOUNCED GROUNDS FOR THE AGENCY DECISION COMPORT WITH THE
APPLICABLE LEGAL PRINCIPLES.  SEC V. CHENERY CORP., 318 U.S. 80, 84-88
(1943).  IN THIS PROCEEDING-- WHERE THE RECORD IS ALREADY CONFUSED BY
AMBIGUITIES OVER WHAT WAS THOUGHT TO BE AT ISSUE-- WE CANNOT SAY THAT
THE GROUNDS FOR THE AGENCY DECISION ARE CONSISTENT WITH THE "PUBLIC
INTEREST" STANDARD FOUND IN THE INTERSTATE COMMERCE ACT.  WE MUST
REVERSE AND REMAND FOR FURTHER PROCEEDINGS. 

C. SOUTHERN PACIFIC'S SEC. 3(5) APPLICATIONS 

WE TURN TO SP'S APPLICATIONS FOR TRACKAGE RIGHTS WHICH WOULD PERMIT
IT TO RUN TRAINS DIRECTLY TO PENINSULA FROM EAST PORTLAND.  ACCORDING
TO THE COMMISSION: 

"THE INTENT OF CONGRESS IN ENACTING SECTION 3(5) WAS TO PROVIDE A
METHOD OF AVOIDING THE NECESSITY FOR INCURRING UNNECESSARY EXPENSE IN
DUPLICATING EXISTING TERMINAL FACILITIES BY A RAILROAD ENTITLED TO
SERVE A PARTICULAR TERRITORY."  334 I.C.C.,AT 435.  SINCE SP WAS "NOT
ENTITLED TO SERVE PENINSULA OR RIVERGATE," IT WENT ON, 

"WE NEED NOT REACH THE QUESTIONS OF WHETHER COMMON USE OF THE
FACILITIES INVOLVED WOULD BE PRACTICABLE OR WOULD SUBSTANTIALLY IMPAIR
THE ABILITY OF PENINSULA AND UP TO HANDLE THEIR OWN BUSINESS."  ID., AT
436.  ACCORDING TO THE RULE APPLIED HERE, IF A RAILROAD IS NOT
"ENTITLED TO SERVE" A PARTICULAR TERRITORY, THE COMMISSION CONCLUSIVELY
PRESUMES THAT GRANTING SEC. 3(5) RIGHTS WOULD NOT BE IN THE "PUBLIC
INTEREST."  WHETHER OR NOT SUCH A PER SE RULE IS PERMISSIBLE UNDER SEC.
3(5) STRIKES US AS A SUBSTANTIAL QUESTION OF STATUTORY CONSTRUCTION. 
FOR THE FOLLOWING REASONS, HOWEVER, WE DECLINE TO DECIDE THIS QUESTION
IN THE INSTANT CASE AND INCLUDE THESE SEC. 3(5) PROCEEDINGS IN OUR
REMAND TO THE COMMISSION. 

FIRST, WE NOTE THAT THE TWO CASES CITED BY THE COMMISSION IN SUPPORT
OF ITS ANNOUNCED RULE, USE OF NORTHERN PACIFIC TRACKS AT SEATTLE BY
GREAT NORTHERN, 161 I.C.C. 699 (1930), AND SEABOARD AIR LINE R. CO.--
USE OF TERMINAL FACILITIES OF FLORIDA EAST R. CO., 327 I.C.C. 1 (1965),
DO NOT DIRECTLY PRESENT THE QUESTION AT ISSUE, SINCE IN EACH CASE THE
COMMISSION DECIDED THAT THE APPLYING RAILROAD WAS ENTITLED TO SERVE THE
AREA AND WENT ON TO GRANT THE REQUESTED TRACKAGE RIGHTS. 

SECOND, WE NOTE THAT THE COMMISSION'S BRIEF NOW DEFENDS THE RULING
BELOW ON BROADER GROUNDS THAN THOSE THAT WERE ANNOUNCED.  THIS LEADS US
TO DOUBT THE EXTENT TO WHICH THE COMMISSION'S ANNOUNCED RULE IS SETTLED
ICC LAW. 

THIRD, THE QUESTION OF SEC. 3(5) RELIEF MAY BECOME MOOT IF THE
COMMISSION, ON REMAND OF THE SEC. 5(2) PETITIONS FOR INCLUSION,
REVERSES ITSELF AND REQUIRES TRACKAGE RIGHTS FOR SP AS A CONDITION FOR
APPROVAL OF THE PURCHASE OF PENINSULA, AND IF THE PURCHASE IS THEN
CONSUMMATED. 

FOURTH, THE SEC. 3(5) APPLICATIONS WERE CONSIDERED IN CLOSE
CONNECTION WITH THE SEC. 5(2) PETITIONS FOR INCLUSION BY BOTH THE
COMMISSION AND THE HEARING EXAMINER.  WE CANNOT SAY WITH ASSURANCE THAT
THE COMMISSION WOULD APPROACH THE SEC. 3(5) APPLICATIONS IN THE SAME
WAY AFTER RECONSIDERING THE PETITIONS FOR INCLUSION IN LIGHT OF PARTS
IIA) AND (B) OF THIS OPINION. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED.  THE CASE IS
REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS THAT IT REMAND TO THE
INTERSTATE COMMERCE COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

/1/  SP&S WAS FORMERLY OWNED BY THE GREAT NORTHERN RAILWAY CO. AND
THE NORTHERN PACIFIC RAILWAY CO.  THESE TWO ROADS MERGED TO BECOME
BURLINGTON NORTHERN.  SEE NORTHERN LINES MERGER CASES, 396 U.S. 491
(1970).  SP&S NOW OPERATES AS AN INTEGRAL PART OF THAT RAILROAD. 
REFERENCE TO BURLINGTON NORTHERN IN THIS OPINION WILL INCLUDE ITS SP&S
OPERATION, BUT SP&S OFTEN WILL BE REFERRED TO IN CONNECTION WITH THE
PROCEEDINGS BELOW, WHERE IT WAS THE NAMED PARTY. 

/2/  WHEN THE RECORD CLOSED BELOW, THE NUMBER OF INDUSTRIES IN
RIVERGATE WAS FIVE, FOUR OF WHICH WERE LOCATED ON THE WILLAMETTE RIVER
SIDE OF RIVERGATE.  APP. 81.  BY THE TIME THE CASE HAD REACHED THE
COMMISSION, ANOTHER INDUSTRY HAD LOCATED ON THE WILLAMETTE RIVER SIDE. 
ACCORDING TO THE BRIEF FOR THE INTERSTATE COMMERCE COMMISSION, P. 38,
WHICH NO ONE HAS CONTRADICTED, TWO ADDITIONAL INDUSTRIES HAVE NOW
LOCATED ON THE WILLAMETTE RIVER SIDE. 

/3/ SP&S AND UP HAD ALREADY PROVIDED FOR JOINT OWNERSHIP OF SUCH A
SPUR IN THEIR MAY 26, 1967, CONTRACT FOR THE JOINT OWNERSHIP OF THE
LINE BETWEEN BARNES YARD AND THE SOUTHWESTERN PART OF RIVERGATE.  SEE
ART. XI OF THIS AGREEMENT, APP. 313. 

/4/  THE AGREED PURCHASE PRICE IS $299,405 FOR ALL OUTSTANDING
SHARES OF COMMON STOCK OF PENINSULA PLUS THE SUM OF $70,000 TO
REIMBURSE UNITED FOR TWO SWITCH ENGINES SOLD BY UNITED TO PENINSULA,
AND REPRESENTING AN UNSECURED ACCOUNT PAYABLE TO UNITED.  PENINSULA'S
PROPERTIES CONSIST OF 13.17 ACRES OF LAND, NONE SUITABLE FOR INDUSTRIAL
DEVELOPMENT, AND A TOTAL OF 3.79 MILES OF MAIN LINE AND SECONDARY AND
SPUR TRACK LAID ON TREATED TIES IN SAND WITH NO ROCK BALLAST.  BESIDES
THE TWO ABOVE-NOTED LOCOMOTIVES, INCLUDING TOOLS AND PARTS FOR THEIR
OPERATION AND MAINTENANCE, PENINSULA OWNS TOOLS FOR TRACK MAINTENANCE,
A CONVEYANCE FOR WORKMEN, A HEATED ENGINE HOUSE FOR BOTH LOCOMOTIVES, A
YARD OFFICE, AND A SAND HOUSE. 

/5/  SECTION 5(2) OF THE ACT, 49 U.S.C. 5(2), PROVIDES IN PERTINENT
PART: 

"(A) IT SHALL BE LAWFUL, WITH THE APPROVAL AND AUTHORIZATION OF THE
COMMISSION, AS PROVIDED IN SUBDIVISION (B) OF THIS PARAGRAPH-- 

"(I) FOR . . . TWO OR MORE CARRIERS JOINTLY, TO ACQUIRE CONTROL OF
ANOTHER THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE.  . . . 

"(B) WHENEVER A TRANSACTION IS PROPOSED UNDER SUBDIVISION (A) OF
THIS PARAGRAPH, THE CARRIER OR CARRIERS OR PERSON SEEKING AUTHORITY
THEREFOR SHALL PRESENT AN APPLICATION TO THE COMMISSION, AND THEREUPON
THE COMMISSION . . . SHALL AFFORD REASONABLE OPPORTUNITY FOR INTERESTED
PARTIES TO BE HEARD.  . . . (A) PUBLIC HEARING SHALL BE HELD IN ALL
CASES WHERE CARRIERS BY RAILROAD ARE INVOLVED UNLESS THE COMMISSION
DETERMINES THAT A PUBLIC HEARING IS NOT NECESSARY IN THE PUBLIC
INTEREST.  IF THE COMMISSION FINDS THAT, SUBJECT TO SUCH TERMS AND
CONDITIONS AND SUCH MODIFICATIONS AS IT SHALL FIND TO BE JUST AND
REASONABLE, THE PROPOSED TRANSACTION IS WITHIN THE SCOPE OF SUBDIVISION
(A) OF THIS PARAGRAPH AND WILL BE CONSISTENT WITH THE PUBLIC INTEREST,
IT SHALL ENTER AN ORDER APPROVING AND AUTHORIZING SUCH TRANSACTION,
UPON THE TERMS AND CONDITIONS, AND WITH THE MODIFICATIONS, SO FOUND TO
BE JUST AND REASONABLE . . . . 

"(C) IN PASSING UPON ANY PROPOSED TRANSACTION UNDER THE PROVISIONS
OF THIS PARAGRAPH, THE COMMISSION SHALL GIVE WEIGHT TO THE FOLLOWING
CONSIDERATIONS, AMONG OTHERS:  (1) THE EFFECT OF THE PROPOSED
TRANSACTION UPON ADEQUATE TRANSPORTATION SERVICE TO THE PUBLIC; (2) THE
EFFECT UPON THE PUBLIC INTEREST OF THE INCLUSION, OR FAILURE TO
INCLUDE, OTHER RAILROADS IN THE TERRITORY INVOLVED IN THE PROPOSED
TRANSACTION; (3) THE TOTAL FIXED CHARGES RESULTING FROM THE PROPOSED
TRANSACTION; AND (4) THE INTEREST OF THE CARRIER EMPLOYEES AFFECTED. 

"(D) THE COMMISSION SHALL HAVE AUTHORITY IN THE CASE OF A PROPOSED
TRANSACTION UNDER THIS PARAGRAPH INVOLVING A RAILROAD OR RAILROADS, AS
A PREREQUISITE TO ITS APPROVAL OF THE PROPOSED TRANSACTION, TO REQUIRE,
UPON EQUITABLE TERMS, THE INCLUSION OF ANOTHER RAILROAD OR OTHER
RAILROADS IN THE TERRITORY INVOLVED, UPON PETITION BY SUCH RAILROAD OR
RAILROADS REQUESTING SUCH INCLUSION, AND UPON A FINDING THAT SUCH
INCLUSION IS CONSISTENT WITH THE PUBLIC INTEREST." 

/6/  ALTHOUGH THE MAP REPRODUCED IN THE APPENDIX DOES NOT MAKE THIS
CLEAR, TRAINS COMING NORTH ON THE UP TRACK FROM ALBINA YARD MAY ENTER
DIRECTLY UPON THE BURLINGTON NORTHERN DOUBLE MAIN-LINE TRACKS JUST
SOUTH OF NORTH PORTLAND, WITHOUT PASSING THROUGH THE NORTH PORTLAND
INTERCHANGE. 

/7/  THESE PERCENTAGES ARE BASED ON THE FIGURES FOR LOADED OR PARTLY
LOADED CARS INTERCHANGED AT PENINSULA DURING 1967:  2,748 CARS
DESIGNATED TO OR FROM PENINSULA INDUSTRIES; 4,300 INTERCHANGED BETWEEN
UP AND THE PREDECESSORS OF BURLINGTON NORTHERN.  IT IS NOT CLEAR FROM
THE RECORD HOW THE TOTAL FIGURE OF 7,048 CARS IS TRANSLATED INTO 30
CARS PER DAY-- PERHAPS EMPTY CARS ARE INCLUDED-- BUT NONE OF THE
PARTIES DISPUTED THE DAILY OR ANNUAL FIGURES. 

/8/  IN SWITCHING CHARGES AND ABSORPTION THEREOF AT SHREVEPORT, LA.,
339 I.C.C. 65, 70 (1971), THE COMMISSION HAS EXPLAINED "RECIPROCAL
SWITCHING" AS FOLLOWS: 

"IT HAS LONG BEEN A COMMON PRACTICE AMONG THE RAILROADS TO
PARTICIPATE AT COMMONLY SERVED TERMINAL AREAS IN WHAT IS CALLED
RECIPROCAL SWITCHING.  IN PRACTICE THIS MEANS THAT ONE LINE-HAUL
CARRIER OPERATING WITHIN THE TERMINAL AREA WILL ACT ONLY AS A SWITCHING
CARRIER IN PLACING CARS AT INDUSTRIES ON ITS OWN TRACKAGE FOR LOADING
OR UNLOADING, AS AN INCIDENT OF THE LINE-HAUL MOVEMENT OF THOSE CARS
OVER ANOTHER CARRIER WHOSE TRACKAGE IN THAT TERMINAL AREA DOES NOT
EXTEND TO THE SERVICED INDUSTRY.  THE CARRIERS RECIPROCATE IN THEIR
ROLES AS SWITCHING AND LINE-HAUL CARRIERS AT THIS TERMINAL IN
ACCORDANCE WITH THE FLOW OF TRAFFIC TO AND FROM INDUSTRIES ON THEIR
RESPECTIVE TRACKAGE.  IN THEORY THE CARRIERS MUTUALLY EXCHANGE THEIR
SWITCHING SERVICES IN THESE TERMINAL AREAS, WITH THE EFFECT OF
EXTENDING THE LINES OF EACH CARRIER TO THE OTHER'S INDUSTRIES-- EVEN ON
TRAFFIC FOR WHICH THEY MAY BE DIRECTLY COMPETITIVE AS LINE-HAUL
CARRIERS.  THE SCOPE OF THESE RECIPROCAL SWITCHING SERVICES IS, OF
COURSE, DEFINED IN THE CARRIERS' RESPECTIVE TARIFFS, EITHER BY
DEFINITION OF A SPECIFIC AREA OF TRACKAGE, OR BE IDENTIFICATION OF THE
PARTICULAR INDUSTRIES FOR WHICH RECIPROCAL SWITCHING IS HELD OUT. 
FREQUENTLY, THE SWITCHING CHARGES MADE APPLICABLE BY EACH CARRIER FOR
RECIPROCAL SWITCHING ARE CONSTRUCTED WITHOUT REGARD TO THE ACTUAL COST
OF THE SERVICE, ON THE THEORY THAT THESE MUTUALLY INCURRED COSTS
BALANCE OUT EACH OTHER.  IN MANY INSTANCES THE LINE-HAUL CARRIER
ABSORBS THE RECIPROCAL SWITCHING CHARGE, THUS PLACING THE OFF-LINE
INDUSTRIES WITHIN A GIVEN TERMINAL AREA ON AN IDENTICAL RATE BASIS WITH
ITS OWN ON-LINE INDUSTRIES IN THAT TERMINAL AREA." 

/9/  IN OTHER WORDS, PENINSULA IS COMPENSATED FOR ITS SWITCHING
SERVICE IN THESE CASES BY A FLAT DIVISION OF THE LINE-HAUL RATES.  AT
THE TIME OF HEARING BELOW, THE CHARGE GENERALLY AMOUNTED TO $29.25 PER
CAR WHEN THE CAR REVENUE EXCEEDED $60.  APP. 79.     /10/  THE
COMMISSION APPROVED THE MERGER ON NOVEMBER 30, 1967.  GREAT NORTHERN
PACIFIC & BURLINGTON LINE, INC.-- MERGER, ETC.-- GREAT NORTHERN R. CO.
ET AL., 331 I.C.C. 228, MODIFIED APR. 11, 1968, 331 I.C.C. 869.  THIS
COURT ULTIMATELY AFFIRMED.  NORTHERN LINES MERGER CASES, 396 U.S. 491
(1970). 

WHY DIRECT ACCESS TO PORTLAND WAS CRITICAL TO THE MILWAUKEE IS MADE
CLEAR BY THE FOLLOWING QUOTATION FROM THE THREE-JUDGE DISTRICT COURT
OPINION IN WHAT BECAME THE NORTHERN LINES MERGER CASES:     "NEITHER
GREAT NORTHERN NOR NORTHERN PACIFIC WOULD INTERCHANGE TRAFFIC WITH
MILWAUKEE (AT LONGVIEW, WASHINGTON) EXCEPT IN CIRCUMSTANCES WHICH GAVE
NORTHERN LINES THE LONGEST POSSIBLE HAUL OVER THEIR OWN ROADS.  THIS
PRIVILEGE OF NORTHERN LINES NOT TO 'SHORTHAUL'  THEMSELVES MEANS THAT
TRAFFIC ORIGINATING ON THE MILWAUKEE EAST OF THE TWIN CITIES (AND)
DESTINED FOR PORTLAND OR CALIFORNIA WAS REQUIRED TO BE TURNED OVER TO
ONE OF THE MERGING LINES AT THE TWIN CITIES.  AS A CONSEQUENCE,
MILWAUKEE WAS PRECLUDED FROM BEING A TRUE TRANSCONTINENTAL COMPETITOR
AND WAS UNABLE TO MAKE FULL USE OF ITS EXTENSIVE TRACKAGE ENDING ONLY A
FEW MILES SHORT OF PORTLAND.  MOREOVER, MILWAUKEE WAS COMPLETELY
PRECLUDED FROM THE EXTENSIVE NORTH-SOUTH TRAFFIC ON THE WEST COAST." 
296 F.SUPP.  853, 865 (DC 1968). 

/11/  SINCE THE INSTANT CASE WAS LITIGATED BELOW ON THE EXPRESS
ASSUMPTION THAT THE NORTHERN LINES MERGER, AND THE ACCOMPANYING
CONDITION, WOULD ULTIMATELY BE AFFIRMED, THE MILWAUKEE'S CURRENT
OPERATION DOES NOT CONSTITUTE A "CHANGE IN CIRCUMSTANCES" SO MUCH AS A
REALIZATION OF THE ASSUMPTION. 

/12/  THE BRIEFS DO NOT CLEARLY REFLECT UNDER WHAT ARRANGEMENTS
MILWAUKEE CARS HAVE BEEN REACHING PENINSULA SINCE MARCH 22, 1971,
THOUGH IT IS PLAIN THAT MILWAUKEE TRAINS HAVE NOT BEEN MOVING DIRECTLY
TO THE NORTH PORTLAND INTERCHANGE. 

/13/  THE CONTRACT HERE REFERRED TO IS A 1966 AGREEMENT BETWEEN
MILWAUKEE AND THE NORTHERN LINES, THE TERMS OF WHICH WERE INCORPORATED
IN LARGE PART INTO THE COMMISSION'S CONDITIONS ACCOMPANYING THE
APPROVAL OF THE NORTHERN LINES MERGER.  IN PARTICULAR, THE AGREEMENT
PROVIDED THAT MILWAUKEE COULD OPERATE OVER SP&S LINES AS FAR SOUTH AS
THE HOYT S. YARD, AND THAT SP&S WOULD PROVIDE SWITCHING OF MILWAUKEE
CARS AT VANCOUVER AND PORTLAND "TO OR FROM INDUSTRIES AND CONNECTING
CARRIERS TO THE EXTENT SUCH SERVICE IS PERFORMED BY (BURLINGTON
NORTHERN) OR SP&S FOR ITSELF OR ANY OTHER CARRIER."  THESE PROVISIONS
WERE THE DIRECT PREDECESSORS OF THE VAGUER CONDITION 24(A), QUOTED
ABOVE. 

/14/  A SOURCE OF CONFUSION IN THIS CASE HAS BEEN THE EXTENT TO
WHICH VARIOUS CARRIERS EITHER WOULD POSSESS OR SOUGHT TO POSSESS
TRACKAGE RIGHTS OVER PENINSULA'S MAIN TRACK (AS OPPOSED TO THE
INTERCHANGE TRACKS AT NORTH PORTLAND), SO THE READER IS ALERTED TO
TREAD CAREFULLY THROUGH THE DESCRIPTIONS OF THE PLEADINGS AND THE
OPINIONS BELOW. 

/15/  SECTION 3(5) OF THE ACT, 49 U.S.C. 3(5), PROVIDES IN PERTINENT
PART: 

"IF THE COMMISSION FINDS IT TO BE IN THE PUBLIC INTEREST AND TO BE
PRACTICABLE, WITHOUT SUBSTANTIALLY IMPAIRING THE ABILITY OF A COMMON
CARRIER BY RAILROAD OWNING OR ENTITLED TO THE ENJOYMENT OF TERMINAL
FACILITIES TO HANDLE ITS WON BUSINESS, IT SHALL HAVE POWER BY ORDER TO
REQUIRE THE USE OF ANY SUCH TERMINAL FACILITIES, INCLUDING MAIN-LINE
TRACK OR TRACKS FOR A REASONABLE DISTANCE OUTSIDE OF SUCH TERMINAL, OF
ANY COMMON CARRIER BY RAILROAD, BY ANOTHER SUCH CARRIER OR OTHER SUCH
CARRIERS, ON SUCH TERMS AND FOR SUCH COMPENSATION AS THE CARRIERS
AFFECTED MAY AGREE UPON, OR, IN THE EVENT OF A FAILURE TO AGREE, AS THE
COMMISSION MAY FIX AS JUST AND REASONABLE FOR THE USE SO REQUIRED, TO
BE ASCERTAINED ON THE PRINCIPLE CONTROLLING COMPENSATION IN
CONDEMNATION PROCEEDINGS.  . . . " 

/16/  WE ARE TOLD THAT "BRIDGE TRACKAGE RIGHTS," PERMITTING SP ONLY
TO HAUL CARS FROM ONE END OF THE LINE TO THE OTHER, ARE TO BE
CONTRASTED WITH "FULL USER RIGHTS" OR "COMMON USE," WHICH WOULD PERMIT
SP TO SERVE ANY INDUSTRIES LOCATED ALONG THE UP TRACK.  SEE BRIEF FOR
APPELLEES SP&S AND UP 27. 

/17/  LIKE MILWAUKEE, SP HAD MENTIONED SEC. 3(5) IN CONNECTION WITH
ITS SEC. 5(2) PETITION FOR INCLUSION, ASKING FOR 

"TRACKAGE RIGHTS BETWEEN EAST PORTLAND AND THE YARDS OF PENINSULA
TERMINAL COMPANY, BOTH AS A CONDITION TO PARTICIPATION IN OWNERSHIP OF
PENINSULA TERMINAL COMPANY, AND ALSO UNDER SECTION 3(5) . . . ,
INDEPENDENTLY OF THE REQUEST FOR PARTICIPATION IN OWNERSHIP."  APP.
169. 

THE HEARING EXAMINER AND THE COMMISSION TREATED THIS SEC. 3(5)
REQUEST AS HAVING BEEN SUPERSEDED BY SP'S SEPARATE SEC. 3(5)
PROCEEDINGS, WHICH, IF ANYTHING, SOUGHT BROADER RELIEF.  WE DO
LIKEWISE. 

/18/  EIGHT RAILWAY EMPLOYEE ORGANIZATIONS OPPOSED THE PETITIONS AND
APPLICATIONS OF MILWAUKEE AND SP.  NONE OF THEIR CONTENTIONS ARE BEFORE
US NOW. 

/19/  IN RETURN FOR INCLUSION IN THE PURCHASE OF PENINSULA, SP AND
MILWAUKEE WERE TO BE REQUIRED TO MAKE EQUAL CONTRIBUTION TO THE COST OF
THE SHARES OF CAPITAL STOCK AND THE LOCOMOTIVE EQUIPMENT OF PENINSULA. 

MILWAUKEE'S INCLUSION IN THE PURCHASE WAS MADE CONTINGENT, NOT ONLY
ON ULTIMATE APPROVAL OF THE NORTHERN LINES MERGER, BUT ALSO UPON
MILWAUKEE'S FILING A SEC. 1(18) REQUEST FOR A "CERTIFICATE OF
CONVENIENCE AND NECESSITY AUTHORIZING RAILROAD OPERATION BETWEEN
LONGVIEW JUNCTION, WASH., AND PORTLAND, OREG."  GIVEN CONDITION 24(A),
THE COMMISSION REJECTED THE PROPOSITION THAT A SEC. 1(18) CERTIFICATE
WOULD BE NECESSARY BEFORE MILWAUKEE COULD BEGIN OPERATING IN PORTLAND,
AND THE QUESTION IS NOT BEFORE US ON APPEAL. 

/20/  DID THIS SEC. 5(2) ORDER GRANT SP THE TRACKAGE RIGHTS IT
SOUGHT FROM THE ALBINA YARD?  SP CONTENDED BELOW THAT IT DID, ARGUING
THAT THE ONLY INDIVIDUALLY OWNED TRACK IN THE AREA THAT WAS RELEVANT TO
THE ISSUE WAS THE UP TRACK FROM NORTH PORTLAND TO THE ALBINA YARD, AND
THAT THE EXAMINER DID SEEM TO HAVE IN MIND ALL INTERVENING TRACKS.  TO
PROTECT ITSELF ON THIS POINT, HOWEVER, SP FILED AN EXCEPTION TO THE
HEARING EXAMINER'S RECOMMENDATIONS, ARGUING THAT HE SHOULD HAVE GRANTED
THE REQUESTED TRACKAGE RIGHTS UNDER SEC. 5(2). 

AS FOR MILWAUKEE'S APPARENT EFFORT TO CLAIM A SEC. 3(5) RIGHT TO
TRACKAGE OVER THE NORTH PORTLAND INTERCHANGE TRACKS, SEE MILWAUKEE'S
SUPPLEMENT TO PETITION FOR INCLUSION, QUOTED SUPRA, WE CAN ONLY SAY
THAT IT WAS HANDLED VERY AMBIGUOUSLY BY THE HEARING EXAMINER.  THE BEST
EXPLANATION OF HIS ACTION IS THAT HE DEEMED IT UNNECESSARY TO GRANT
TRACKAGE RIGHTS TO MILWAUKEE UNDER SEC. 3(5), SINCE HE WAS GRANTING
THEM UNDER SEC. 5(2).  ALTERNATIVELY, HE MAY HAVE THOUGHT THAT
CONDITION 24(A) GAVE MILWAUKEE TRACKAGE RIGHTS OVER THE NORTH PORTLAND
INTERCHANGE.  MILWAUKEE DID NOT FILE AN EXCEPTION ON THIS ISSUE AND HAS
NOT PRESSED IT ON THIS APPEAL.  CF. BRIEF FOR APPELLANTS 34. 

/21/  WHETHER OR NOT SP HAD IN FACT SOUGHT, UNDER SEC. 3(5), THE
RIGHT TO OPERATE OVER PENINSULA'S MAIN TRACK WAS THE SUBJECT OF
STRENUOUS DISPUTE BEFORE THE HEARING EXAMINER.  COUNSEL WERE UNABLE TO
AGREE ON THE MEANING OF "COMMON USE," SO THE RESULT OF THE INTERCHANGE
IS NOT PERFECTLY CLEAR, BUT SP'S COUNSEL APPEARED TO CONCEDE THAT HIS
CLIENT SOUGHT NO MORE THAN THE RIGHT TO OPERATE TO THE NORTH PORTLAND
INTERCHANGE AND TO CONNECT THERE WITH PENINSULA (IN ADDITION, OF
COURSE, TO EQUAL OWNERSHIP IN THE STOCK OF PENINSULA).  IN ANY EVENT,
IT IS CLEAR THAT THE HEARING EXAMINER DID NOT RECOMMEND GRANTING ANY
RIGHT TO OPERATE OVER THE PENINSULA MAIN TRACK, AND WE NOTE THAT SP DID
NOT FILE AN EXCEPTION ON THIS MATTER. 

/22/  SP&S AND UP CONTENDED, IN ADDITION, THAT SP AND MILWAUKEE ARE
NOT "RAILROADS IN THE TERRITORY INVOLVED" WITHIN THE MEANING OF SEC.
5(2)(D), AND THAT THE COMMISSION, ACCORDINGLY, DID NOT HAVE
JURISDICTION TO INCLUDE THESE TWO LINES IN THE PURCHASE OF PENINSULA. 
THE COMMISSION SQUARELY REJECTED THIS CONTENTION, AND SINCE SP&S AND UP
DO NOT RAISE IT IN THEIR BRIEFS HERE, WE ASSUME THAT THE COMMISSION
DECIDED THE QUESTION CORRECTLY AND DISCUSS IT NO FURTHER. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE.  (MAP OMITTED) 

LOFTON L. TATUM ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE RAYMOND K. MERRILL, WARREN H. PLOEGER, OGLESBY H. YOUNG, W.
HARNEY WILSON, JAMES H. PIPKIN, JR., LEE JOHNSON, ATTORNEY GENERAL OF
OREGON, DALE T. CRABTREE, ASSISTANT ATTORNEY GENERAL, SAMUEL P. DELISI,
AND BRENDA P. MURRAY.  MESSRS.  MERRILL AND PLOEGER FILED A BRIEF FOR
APPELLANT CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. SOLICITOR
GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL COMEGYS, AND HOWARD
E. SHAPIRO FILED A BRIEF FOR THE UNITED STATES IN SUPPORT OF
APPELLANTS. 

FRITZ R. KAHN ARGUED THE CAUSE FOR APPELLEE THE INTERSTATE COMMERCE
COMMISSION.  WITH HIM ON THE BRIEF WERE BETTY JO CHRISTIAN AND EMMANUEL
H. SMITH.  HUGH L. BIGGS, ROGER J. CROSBY, JAMES WARREN COOK, RICHARD
DEVERS, RANDALL B. KESTER, JAMES H. ANDERSON, AND JOHN F. WEISSER, JR.,
FILED A BRIEF FOR APPELLEES SPOKANE, PORTLAND & SEATTLE RAILWAY CO. ET
AL.
..END :
























STEWART V. MASSACHUSETTS, 408 U.S. 845 


       STEWART V. MASSACHUSETTS

        APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

        NO. 71-5446.  DECIDED JUNE 29, 1972 


IMPOSITION AND CARRYING OUT OF DEATH PENALTY IN THIS CASE HELD TO
CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF EIGHTH AND
FOURTEENTH AMENDMENTS.  FURMAN V. GEORGIA, ANTE, P. 238. 

-- MASS.-- , 270 N.E.2D 811, VACATED AND REMANDED. 

PER CURIAM. 

THE APPELLANT IN THIS CASE WAS SENTENCED TO DEATH.  THE IMPOSITION
AND CARRYING OUT OF THAT DEATH PENALTY CONSTITUTES CRUEL AND UNUSUAL
PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS. 
FURMAN V. GEORGIA, ANTE, P. 238.  THE MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS IS GRANTED.  THE JUDGMENT IS THEREFORE VACATED INSOFAR
AS IT LEAVES UNDISTURBED THE DEATH PENALTY IMPOSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS. 
..END :






LAIRD V. TATUM, 408 U.S. 1 


       LAIRD, SECRETARY OF DEFENSE, ET AL. V. TATUM ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 71-288.  ARGUED MARCH 27, 1972-- DECIDED JUNE 26, 1972 


PRIOR TO ITS BEING CALLED UPON IN 1967 TO ASSIST LOCAL AUTHORITIES IN
QUELLING CIVIL DISORDERS IN DETROIT, MICHIGAN, THE DEPARTMENT OF THE
ARMY HAD DEVELOPED ONLY A GENERAL CONTINGENCY PLAN IN CONNECTION WITH
ITS LIMITED DOMESTIC MISSION UNDER 10 U.S.C. 331.  IN RESPONSE TO THE
ARMY'S EXPERIENCE IN THE VARIOUS CIVIL DISORDERS IT WAS CALLED UPON TO
HELP CONTROL DURING 1967 AND 1968, ARMY INTELLIGENCE ESTABLISHED A DATA
GATHERING SYSTEM, WHICH RESPONDENTS DESCRIBE AS INVOLVING THE
"SURVEILLANCE OF LAWFUL CIVILIAN POLITICAL ACTIVITY."  HELD:
RESPONDENTS' CLAIM THAT THEIR FIRST AMENDMENT RIGHTS ARE CHILLED, DUE
TO THE MERE EXISTENCE OF THIS DATA-GATHERING SYSTEM, DOES NOT
CONSTITUTE A JUSTICIABLE CONTROVERSY ON THE BASIS OF THE RECORD IN THIS
CASE, DISCLOSING AS IT DOES NOT SHOWING OF OBJECTIVE HARM OR THREAT OF
SPECIFIC FUTURE HARM.  PP. 3-16. 

144 U.S.APP.D.C. 72, 444 F.2D 947, REVERSED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION IN WHICH MARSHALL, J., JOINED, POST, P. 16. 
BRENNAN, J., FILED A DISSENTING OPINION IN WHICH STEWART AND MARSHALL,
JJ., JOINED, POST, P. 38. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS BROUGHT THIS CLASS ACTION IN THE DISTRICT COURT SEEKING
DECLARATORY AND INJUNCTIVE RELIEF ON THEIR CLAIM THAT THEIR RIGHTS WERE
BEING INVADED BY THE DEPARTMENT OF THE ARMY'S ALLEGED "SURVEILLANCE OF
LAWFUL AND PEACEFUL CIVILIAN POLITICAL ACTIVITY."  THE PETITIONERS IN
RESPONSE DESCRIBED THE ACTIVITY AS "GATHERING BY LAWFUL MEANS . . .
(AND) MAINTAINING AND USING IN THEIR INTELLIGENCE ACTIVITIES . . .
INFORMATION RELATING TO POTENTIAL OR ACTUAL CIVIL DISTURBANCES (OR)
STREET DEMONSTRATIONS."  IN CONNECTION WITH RESPONDENTS' MOTION FOR A
PRELIMINARY INJUNCTION AND PETITIONERS' MOTION TO DISMISS THE
COMPLAINT, BOTH PARTIES FILED A NUMBER OF AFFIDAVITS WITH THE DISTRICT
COURT AND PRESENTED THEIR ORAL ARGUMENTS AT A HEARING ON THE TWO
MOTIONS.  ON THE BASIS OF THE PLEADINGS, /1/  THE AFFIDAVITS BEFORE THE
COURT, AND THE ORAL ARGUMENTS ADVANCED AT THE HEARING, THE DISTRICT
COURT GRANTED PETITIONERS' MOTION TO DISMISS, HOLDING THAT THERE WAS NO
JUSTICIABLE CLAIM FOR RELIEF. 

ON APPEAL, A DIVIDED COURT OF APPEALS REVERSED AND ORDERED THE CASE
REMANDED FOR FURTHER PROCEEDINGS.  WE GRANTED CERTIORARI TO CONSIDER
WHETHER, AS THE COURT OF APPEALS HELD, RESPONDENTS PRESENTED A
JUSTICIABLE CONTROVERSY IN COMPLAINING OF A "CHILLING" EFFECT ON THE
EXERCISE OF THEIR FIRST AMENDMENT RIGHTS WHERE SUCH EFFECT IS ALLEGEDLY
CAUSED, NOT BY ANY "SPECIFIC ACTION OF THE ARMY AGAINST THEM, (BUT)
ONLY (BY) THE EXISTENCE AND OPERATION OF THE INTELLIGENCE GATHERING AND
DISTRIBUTING SYSTEM, WHICH IS CONFINED TO THE ARMY AND RELATED CIVILIAN
INVESTIGATIVE AGENCIES."  144 U.S.APP.D.C. 72, 78, 444 F.2D 947, 953. 
WE REVERSE. 

        (1) 

THERE IS IN THE RECORD A CONSIDERABLE AMOUNT OF BACKGROUND
INFORMATION REGARDING THE ACTIVITIES OF WHICH RESPONDENTS COMPLAINED;
THIS INFORMATION IS SET OUT PRIMARILY IN THE AFFIDAVITS THAT WERE FILED
BY THE PARTIES IN CONNECTION WITH THE DISTRICT COURT'S CONSIDERATION OF
RESPONDENTS' MOTION FOR A PRELIMINARY INJUNCTION AND PETITIONERS'
MOTION TO DISMISS.  SEE FED. RULE CIV. PROC. 12(B).  A BRIEF REVIEW OF
THAT INFORMATION IS HELPFUL TO AN UNDERSTANDING OF THE ISSUES. 

THE PRESIDENT IS AUTHORIZED BY 10 U.S.C. 331 /2/  TO MAKE USE OF THE
ARMED FORCES TO QUELL INSURRECTION AND OTHER DOMESTIC VIOLENCE IF AND
WHEN THE CONDITIONS DESCRIBED IN THAT SECTION OBTAIN WITHIN ONE OF THE
STATES.  PURSUANT TO THOSE PROVISIONS, PRESIDENT JOHNSON ORDERED
FEDERAL TROOPS TO ASSIST LOCAL AUTHORITIES AT THE TIME OF THE CIVIL
DISORDERS IN DETROIT, MICHIGAN, IN THE SUMMER OF 1967 AND DURING THE
DISTURBANCES THAT FOLLOWED THE ASSASSINATION OF DR. MARTIN LUTHER
KING.  PRIOR TO THE DETROIT DISORDERS, THE ARMY HAD A GENERAL
CONTINGENCY PLAN FOR PROVIDING SUCH ASSISTANCE TO LOCAL AUTHORITIES,
BUT THE 1967 EXPERIENCE LED ARMY AUTHORITIES TO BELIEVE THAT MORE
ATTENTION SHOULD BE GIVEN TO SUCH PREPARATORY PLANNING.  THE DATA
GATHERING SYSTEM HERE INVOLVED IS SAID TO HAVE BEEN ESTABLISHED IN
CONNECTION WITH THE DEVELOPMENT OF MORE DETAILED AND SPECIFIC
CONTINGENCY PLANNING DESIGNED TO PERMIT THE ARMY, WHEN CALLED UPON TO
ASSIST LOCAL AUTHORITIES, TO BE ABLE TO RESPOND EFFECTIVELY WITH A
MINIMUM OF FORCE.  AS THE COURT OF APPEALS OBSERVED, 

"IN PERFORMING THIS TYPE FUNCTION THE ARMY IS ESSENTIALLY A

  POLICE FORCE OR THE BACK-UP OF A LOCAL POLICE FORCE.  TO QUELL

  DISTURBANCES OR TO PREVENT FURTHER DISTURBANCES THE ARMY NEEDS

  THE SAME TOOLS AND, MOST IMPORTANTLY, THE SAME INFORMATION TO

  WHICH LOCAL POLICE FORCES HAVE ACCESS.  SINCE THE ARMY IS SENT

  INTO TERRITORY ALMOST INVARIABLY UNFAMILIAR TO MOST SOLDIERS AND

  THEIR COMMANDERS, THEIR NEED FOR INFORMATION IS LIKELY TO BE

  GREATER THAN THAT OF THE HOMETOWN POLICEMAN. 

     "NO LOGICAL ARGUMENT CAN BE MADE FOR COMPELLING THE MILITARY
TO

  USE BLIND FORCE.  WHEN FORCE IS EMPLOYED IT SHOULD BE

  INTELLIGENTLY DIRECTED, AND THIS DEPENDS UPON HAVING RELIABLE

  INFORMATION-- IN TIME.  AS CHIEF JUSTICE JOHN MARSHALL SAID OF

  WASHINGTON, 'A GENERAL MUST BE GOVERNED BY HIS INFORMATION.  IT

IS HIS DUTY TO OBTAIN CORRECT INFORMATION . . . . '  SO WE TAKE

  IT AS UNDENIABLE THAT THE MILITARY, I.E., THE ARMY, NEED A

  CERTAIN AMOUNT OF INFORMATION IN ORDER TO PERFORM THEIR

  CONSTITUTIONAL AND STATUTORY MISSIONS."  144 U.S.APP.D.C.,AT

  77-78, 444 F.2D, AT 952-953 (FOOTNOTES OMITTED). 

THE SYSTEM PUT INTO OPERATION AS A RESULT OF THE ARMY'S 1967
EXPERIENCE CONSISTED ESSENTIALLY OF THE COLLECTION OF INFORMATION ABOUT
PUBLIC ACTIVITIES THAT WERE THOUGHT TO HAVE AT LEAST SOME POTENTIAL FOR
CIVIL DISORDER, THE REPORTING OF THAT INFORMATION TO ARMY INTELLIGENCE
HEADQUARTERS AT FORT HOLABIRD, MARYLAND, THE DISSEMINATION OF THESE
REPORTS FROM HEADQUARTERS TO MAJOR ARMY POSTS AROUND THE COUNTRY, AND
THE STORAGE OF THE REPORTED INFORMATION IN A COMPUTER DATA BANK LOCATED
AT FORT HOLABIRD.  THE INFORMATION ITSELF WAS COLLECTED BY A VARIETY OF
MEANS, BUT IT IS SIGNIFICANT THAT THE PRINCIPAL SOURCES OF INFORMATION
WERE THE NEWS MEDIA AND PUBLICATIONS IN GENERAL CIRCULATION.  SOME OF
THE INFORMATION CAME FROM ARMY INTELLIGENCE AGENTS WHO ATTENDED
MEETINGS THAT WERE OPEN TO THE PUBLIC AND WHO WROTE FIELD REPORTS
DESCRIBING THE MEETINGS, GIVING SUCH DATA AS THE NAME OF THE SPONSORING
ORGANIZATION, THE IDENTITY OF SPEAKERS, THE APPROXIMATE NUMBER OF
PERSONS IN ATTENDANCE, AND AN INDICATION OF WHETHER ANY DISORDER
OCCURRED.  AND STILL OTHER INFORMATION WAS PROVIDED TO THE ARMY BY
CIVILIAN LAW ENFORCEMENT AGENCIES. 

THE MATERIAL FILED BY THE GOVERNMENT IN THE DISTRICT COURT REVEALS
THAT ARMY INTELLIGENCE HAS FIELD OFFICES IN VARIOUS PARTS OF THE
COUNTRY; THESE OFFICES ARE STAFFED IN THE AGGREGATE WITH APPROXIMATELY
1,000 AGENTS, 94% OF WHOSE TIME /3/  IS DEVOTED TO THE ORGANIZATION'S
PRINCIPAL MISSION, /4/  WHICH IS UNRELATED TO THE DOMESTIC SURVEILLANCE
SYSTEM HERE INVOLVED. 

BY EARLY 1970 CONGRESS BECAME CONCERNED WITH THE SCOPE OF THE ARMY'S
DOMESTIC SURVEILLANCE SYSTEM; HEARINGS ON THE MATTER WERE HELD BEFORE
THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON
THE JUDICIARY.  MEANWHILE, THE ARMY, IN THE COURSE OF A REVIEW OF THE
SYSTEM, ORDERED A SIGNIFICANT REDUCTION IN ITS SCOPE.  FOR EXAMPLE,
INFORMATION REFERRED TO IN THE COMPLAINT AS THE "BLACKLIST" AND THE
RECORDS IN THE COMPUTER DATA BANK AT FORT HOLABIRD WERE FOUND
UNNECESSARY AND WERE DESTROYED, ALONG WITH OTHER RELATED RECORDS.  ONE
COPY OF ALL THE MATERIAL RELEVANT TO THE INSTANT SUIT WAS RETAINED,
HOWEVER, BECAUSE OF THE PENDENCY OF THIS LITIGATION.  THE REVIEW
LEADING TO THE DESTRUCTION OF THESE RECORDS WAS SAID AT THE TIME THE
DISTRICT COURT RULED ON PETITIONERS' MOTION TO DISMISS TO BE A
"CONTINUING" ONE (APP. 82), AND THE ARMY'S POLICIES AT THAT TIME WERE
REPRESENTED AS FOLLOWS IN A LETTER FROM THE UNDER SECRETARY OF THE ARMY
TO SENATOR SAM J. ERVIN, CHAIRMAN OF THE SENATE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS: 

"(REPORTS CONCERNING CIVIL DISTURBANCES WILL BE LIMITED TO MATTERS
OF IMMEDIATE CONCERN TO THE ARMY-- THAT IS, REPORTS CONCERNING
OUTBREAKS OF VIOLENCE OR INCIDENTS WITH A HIGH POTENTIAL FOR VIOLENCE
BEYOND THE CAPABILITY OF STATE AND LOCAL POLICE AND THE NATIONAL GUARD
TO CONTROL.  THESE

  REPORTS WILL BE COLLECTED BY LIAISON WITH OTHER GOVERNMENT
AGENCIES AND REPORTED BY TELETYPE

TO THE INTELLIGENCE COMMAND.  THEY WILL NOT BE PLACED IN A COMPUTER
. . . . THESE REPORTS ARE

  DESTROYED 60 DAYS AFTER PUBLICATION OR 60 DAYS AFTER THE END OF
THE DISTURBANCE.  THIS LIMITED

  REPORTING SYSTEM WILL ENSURE THAT THE ARMY IS PREPARED TO RESPOND
TO WHATEVER DIRECTIONS THE

  PRESIDENT MAY ISSUE IN CIVIL DISTURBANCE SITUATIONS AND WITHOUT
'WATCHING' THE LAWFUL

  ACTIVITIES OF CIVILIANS."  (APP. 80.) 

IN BRIEFS FOR PETITIONERS FILED WITH THIS COURT, THE SOLICITOR
GENERAL HAS CALLED OUR ATTENTION TO CERTAIN DIRECTIVES ISSUED BY THE
ARMY AND THE DEPARTMENT OF DEFENSE SUBSEQUENT TO THE DISTRICT COURT'S
DISMISSAL OF THE ACTION; THESE DIRECTIVES INDICATE THAT THE ARMY'S
REVIEW OF THE NEEDS OF ITS DOMESTIC INTELLIGENCE ACTIVITIES HAS INDEED
BEEN A CONTINUING ONE AND THAT THOSE ACTIVITIES HAVE SINCE BEEN
SIGNIFICANTLY REDUCED. 

(2) 

THE DISTRICT COURT HELD A COMBINED HEARING ON RESPONDENTS' MOTION
FOR A PRELIMINARY INJUNCTION AND PETITIONERS' MOTION FOR DISMISSAL AND
THEREAFTER ANNOUNCED ITS HOLDING THAT RESPONDENTS HAD FAILED TO STATE A
CLAIM UPON WHICH RELIEF COULD BE GRANTED.  IT WAS THE VIEW OF THE
DISTRICT COURT THAT RESPONDENTS FAILED TO ALLEGE ANY ACTION ON THE PART
OF THE ARMY THAT WAS UNLAWFUL IN ITSELF AND FURTHER FAILED TO ALLEGE
ANY INJURY OR ANY REALISTIC THREATS TO THEIR RIGHTS GROWING OUT OF THE
ARMY'S ACTIONS.  /5/ 

IN REVERSING, THE COURT OF APPEALS NOTED THAT RESPONDENTS "HAVE SOME
DIFFICULTY IN ESTABLISHING VISIBLE INJURY": 

"(THEY) FREELY ADMIT THAT THEY COMPLAIN OF NO SPECIFIC ACTION OF THE
ARMY AGAINST THEM . . . . THERE IS NO EVIDENCE OF ILLEGAL OR UNLAWFUL

  SURVEILLANCE ACTIVITIES.  WE ARE NOT CITED TO ANY CLANDESTINE
INTRUSION BY A MILITARY

  AGENT.  SO FAR AS IS YET SHOWN, THE INFORMATION GATHERED IS
NOTHING MORE THAN A GOOD NEWSPAPER

  REPORTER WOULD BE ABLE TO GATHER BY ATTENDANCE AT PUBLIC MEETINGS
AND THE CLIPPING OF ARTICLES

  FROM PUBLICATIONS AVAILABLE ON ANY NEWSSTAND."  144
U.S.APP.D.C.,AT 78, 444 F.2D, AT 953.  THE COURT TOOK NOTE OF
PETITIONERS' ARGUMENT "THAT NOTHING (DETRIMENTAL TO RESPONDENTS) HAS
BEEN DONE, THAT NOTHING IS CONTEMPLATED TO BE DONE, AND EVEN IF SOME
ACTION BY THE ARMY AGAINST (RESPONDENTS) WERE POSSIBLY FORESEEABLE,
SUCH WOULD NOT PRESENT A PRESENTLY JUSTICIABLE CONTROVERSY."  WITH
RESPECT TO THIS ARGUMENT, THE COURT OF APPEALS HAD THIS TO SAY: 

     "THIS POSITION OF THE (PETITIONERS) DOES NOT ACCORD FULL

  MEASURE TO THE RATHER UNIQUE ARGUMENT ADVANCED BY APPELLANTS

  (RESPONDENTS).  WHILE (RESPONDENTS) DO INDEED ARGUE THAT IN THE

  FUTURE IT IS POSSIBLE THAT INFORMATION RELATING TO MATTERS FAR

  BEYOND THE RESPONSIBILITIES OF THE MILITARY MAY BE MISUSED BY THE

MILITARY TO THE DETRIMENT OF THESE CIVILIAN (RESPONDENTS), YET

  (RESPONDENTS) DO NOT ATTEMPT TO ESTABLISH THIS AS A DEFINITELY

  FORESEEABLE EVENT, OR TO BASE THEIR COMPLAINT ON THIS GROUND. 

  RATHER, (RESPONDENTS) CONTEND THAT THE PRESENT EXISTENCE OF THIS

  SYSTEM OF GATHERING AND DISTRIBUTING INFORMATION, ALLEGEDLY FAR

  BEYOND THE MISSION REQUIREMENTS OF THE ARMY, CONSTITUTES AN

  IMPERMISSIBLE BURDEN ON (RESPONDENTS) AND OTHER PERSONS SIMILARLY

  SITUATED WHICH EXERCISES A PRESENT INHIBITING EFFECT ON THEIR

  FULL EXPRESSION AND UTILIZATION OF THEIR FIRST AMENDMENT RIGHTS .

  . . . "  ID., AT 79, 444 F.2D, AT 954. 

OUR EXAMINATION OF THE RECORD SATISFIES US THAT THE COURT OF APPEALS
PROPERLY IDENTIFIED THE ISSUE PRESENTED, NAMELY, WHETHER THE
JURISDICTION OF A FEDERAL COURT MAY BE INVOKED BY A COMPLAINANT WHO
ALLEGES THAT THE EXERCISE OF HIS FIRST AMENDMENT RIGHTS IS BEING
CHILLED BY THE MERE EXISTENCE, WITHOUT MORE, OF A GOVERNMENTAL
INVESTIGATIVE AND DATA-GATHERING ACTIVITY THAT IS ALLEGED TO BE BROADER
IN SCOPE THAN IS REASONABLY NECESSARY FOR THE ACCOMPLISHMENT OF A VALID
GOVERNMENTAL PURPOSE.  WE CONCLUDE, HOWEVER, THAT, HAVING PROPERLY
IDENTIFIED THE ISSUE, THE COURT OF APPEALS DECIDED THAT ISSUE
INCORRECTLY.  /6/ 

IN RECENT YEARS THIS COURT HAS FOUND IN A NUMBER OF CASES THAT
CONSTITUTIONAL VIOLATIONS MAY ARISE FROM THE DETERRENT, OR "CHILLING,"
EFFECT OF GOVERNMENTAL REGULATIONS THAT FALL SHORT OF A DIRECT
PROHIBITION AGAINST THE EXERCISE OF FIRST AMENDMENT RIGHTS.  E.G.,
BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1 (1971); KEYISHIAN V. BOARD OF
REGENTS, 385 U.S. 589 (1967); LAMONT V. POSTMASTER GENERAL, 381 U.S.
301 (1965); BAGGETT V. BULLITT, 377 U.S. 360 (1964).  IN NONE OF THESE
CASES, HOWEVER, DID THE CHILLING EFFECT ARISE MERELY FROM THE
INDIVIDUAL'S KNOWLEDGE THAT A GOVERNMENTAL AGENCY WAS ENGAGED IN
CERTAIN ACTIVITIES OR FROM THE INDIVIDUAL'S CONCOMITANT FEAR THAT,
ARMED WITH THE FRUITS OF THOSE ACTIVITIES, THE AGENCY MIGHT IN THE
FUTURE TAKE SOME OTHER AND ADDITIONAL ACTION DETRIMENTAL TO THAT
INDIVIDUAL.  RATHER, IN EACH OF THESE CASES, THE CHALLENGED EXERCISE OF
GOVERNMENTAL POWER WAS REGULATORY, PROSCRIPTIVE, OR COMPULSORY IN
NATURE, AND THE COMPLAINANT WAS EITHER PRESENTLY OR PROSPECTIVELY
SUBJECT TO THE REGULATIONS, PROSCRIPTIONS, OR COMPULSIONS THAT HE WAS
CHALLENGING. 

FOR EXAMPLE, THE PETITIONER IN BAIRD V. STATE BAR OF ARIZONA HAD
BEEN DENIED ADMISSION TO THE BAR SOLELY BECAUSE OF HER REFUSAL TO
ANSWER A QUESTION REGARDING THE ORGANIZATIONS WITH WHICH SHE HAD BEEN
ASSOCIATED IN THE PAST.  IN ANNOUNCING THE JUDGMENT OF THE COURT, MR.
JUSTICE BLACK SAID THAT "A STATE MAY NOT INQUIRE ABOUT A MAN'S VIEWS OR
ASSOCIATIONS SOLELY FOR THE PURPOSE OF WITHHOLDING A RIGHT OR BENEFIT
BECAUSE OF WHAT HE BELIEVES."  401 U.S.,AT 7.  SOME OF THE TEACHERS WHO
WERE THE COMPLAINANTS IN KEYISHIAN V. BOARD OF REGENTS HAD BEEN
DISCHARGED FROM EMPLOYMENT BY THE STATE, AND THE OTHERS WERE THREATENED
WITH SUCH DISCHARGE, BECAUSE OF THEIR POLITICAL ACTS OR ASSOCIATIONS. 
THE COURT CONCLUDED THAT THE STATE'S "COMPLICATED AND INTRICATE SCHEME"
OF LAWS AND REGULATIONS RELATING TO TEACHER LOYALTY COULD NOT WITHSTAND
CONSTITUTIONAL SCRUTINY; IT WAS NOT PERMISSIBLE TO INHIBIT FIRST
AMENDMENT EXPRESSION BY FORCING A TEACHER TO "GUESS WHAT CONDUCT OR
UTTERANCE" MIGHT BE IN VIOLATION OF THAT COMPLEX REGULATORY SCHEME AND
MIGHT THEREBY "LOSE HIM HIS POSITION."  385 U.S.,AT 604.  LAMONT V.
POSTMASTER GENERAL DEALT WITH A GOVERNMENTAL REGULATION REQUIRING
PRIVATE INDIVIDUALS TO MAKE A SPECIAL WRITTEN REQUEST TO THE POST
OFFICE FOR DELIVERY OF EACH INDIVIDUAL MAILING OF CERTAIN KINDS OF
POLITICAL LITERATURE ADDRESSED TO THEM.  IN DECLARING THE REGULATION
INVALID, THE COURT SAID:  "THE ADDRESSEE CARRIES AN AFFIRMATIVE
OBLIGATION WHICH WE DO NOT THINK THE GOVERNMENT MAY IMPOSE ON HIM." 
381 U.S.,AT 307.  BAGGETT V. BULLITT DEALT WITH A REQUIREMENT THAT AN
OATH OF VAGUE AND UNCERTAIN MEANING BE TAKEN AS A CONDITION OF
EMPLOYMENT BY A GOVERNMENTAL AGENCY.  THE COURT SAID:  "THOSE WITH A
CONSCIENTIOUS REGARD FOR WHAT THEY SOLEMNLY SWEAR OR AFFIRM, SENSITIVE
TO THE PERILS POSED BY THE OATH'S INDEFINITE LANGUAGE, AVOID THE RISK
OF LOSS OF EMPLOYMENT, AND PERHAPS PROFESSION, ONLY BY RESTRICTING
THEIR CONDUCT TO THAT WHICH IS UNQUESTIONABLY SAFE.  FREE SPEECH MAY
NOT BE SO INHIBITED."  377 U.S.,AT 372. 

THE DECISIONS IN THESE CASES FULLY RECOGNIZE THAT GOVERNMENTAL
ACTION MAY BE SUBJECT TO CONSTITUTIONAL CHALLENGE EVEN THOUGH IT HAS
ONLY AN INDIRECT EFFECT ON THE EXERCISE OF FIRST AMENDMENT RIGHTS.  AT
THE SAME TIME, HOWEVER, THESE DECISIONS HAVE IN NO WAY ERODED THE 

"ESTABLISHED PRINCIPLE THAT TO ENTITLE A PRIVATE INDIVIDUAL TO
INVOKE THE JUDICIAL POWER TO DETERMINE THE VALIDITY OF EXECUTIVE OR
LEGISLATIVE ACTION HE MUST SHOW THAT HE HAS SUSTAINED OR IS IMMEDIATELY
IN DANGER OF SUSTAINING A DIRECT INJURY AS THE RESULT OF THAT ACTION .
. . . "  EX PARTE LEVITT, 302 U.S. 633, 634 (1937).  THE RESPONDENTS DO
NOT MEET THIS TEST; THEIR CLAIM, SIMPLY STATED, IS THAT THEY DISAGREE
WITH THE JUDGMENTS MADE BY THE EXECUTIVE BRANCH WITH RESPECT TO THE
TYPE AND AMOUNT OF INFORMATION THE ARMY NEEDS AND THAT THE VERY
EXISTENCE OF THE ARMY'S DATA-GATHERING SYSTEM PRODUCES A
CONSTITUTIONALLY IMPERMISSIBLE CHILLING EFFECT UPON THE EXERCISE OF
THEIR FIRST AMENDMENT RIGHTS.  THAT ALLEGED "CHILLING" EFFECT MAY
PERHAPS BE SEEN AS ARISING FROM RESPONDENTS' VERY PERCEPTION OF THE
SYSTEM AS INAPPROPRIATE TO THE ARMY'S ROLE UNDER OUR FORM OF
GOVERNMENT, OR AS ARISING FROM RESPONDENTS' BELIEFS THAT IT IS
INHERENTLY DANGEROUS FOR THE MILITARY TO BE CONCERNED WITH ACTIVITIES
IN THE CIVILIAN SECTOR, OR AS ARISING FROM RESPONDENTS' LESS
GENERALIZED YET SPECULATIVE APPREHENSIVENESS THAT THE ARMY MAY AT SOME
FUTURE DATE MISUSE THE INFORMATION IN SOME WAY THAT WOULD CAUSE DIRECT
HARM TO RESPONDENTS.  /7/  ALLEGATIONS OF A SUBJECTIVE "CHILL" ARE NOT
AN ADEQUATE SUBSTITUTE FOR A CLAIM OF SPECIFIC PRESENT OBJECTIVE HARM
OR A THREAT OF SPECIFIC FUTURE HARM; "THE FEDERAL COURTS ESTABLISHED
PURSUANT TO ARTICLE III OF THE CONSTITUTION DO NOT RENDER ADVISORY
OPINIONS."  UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 89 (1947). 

STRIPPED TO ITS ESSENTIALS, WHAT RESPONDENTS APPEAR TO BE SEEKING IS
A BROAD-SCALE INVESTIGATION, CONDUCTED BY THEMSELVES AS PRIVATE PARTIES
ARMED WITH THE SUBPOENA POWER OF A FEDERAL DISTRICT COURT AND THE POWER
OF CROSS-EXAMINATION, TO PROBE INTO THE ARMY'S INTELLIGENCE-GATHERING
ACTIVITIES, WITH THE DISTRICT COURT DETERMINING AT THE CONCLUSION OF
THAT INVESTIGATION THE EXTENT TO WHICH THOSE ACTIVITIES MAY OR MAY NOT
BE APPROPRIATE TO THE ARMY'S MISSION.  THE FOLLOWING EXCERPT FROM THE
OPINION OF THE COURT OF APPEALS SUGGESTS THE BROAD SWEEP IMPLICIT IN
ITS HOLDING: 

"APPARENTLY IN THE JUDGMENT OF THE CIVILIAN HEAD OF THE ARMY NOT
EVERYTHING BEING DONE IN THE OPERATION OF THIS INTELLIGENCE SYSTEM WAS
NECESSARY TO THE PERFORMANCE OF THE MILITARY MISSION.  IF THE SECRETARY
OF THE ARMY CAN FORMULATE AND IMPLEMENT SUCH JUDGMENT BASED ON FACTS
WITHIN HIS DEPARTMENTAL KNOWLEDGE, THE UNITED STATES DISTRICT COURT CAN
HEAR EVIDENCE, ASCERTAIN THE FACTS, AND DECIDE WHAT, IF ANY, FURTHER
RESTRICTIONS ON THE COMPLAINED-OF ACTIVITIES ARE CALLED FOR TO CONFINE
THE MILITARY TO TO THEIR LEGITIMATE SPHERE OF ACTIVITY AND TO PROTECT
(RESPONDENTS') ALLEGEDLY INFRINGED CONSTITUTIONAL RIGHTS."  144
U.S.APP.D.C.,AT 83, 444 F.2D, AT 958. 

CARRIED TO ITS LOGICAL END, THIS APPROACH WOULD HAVE THE FEDERAL
COURTS AS VIRTUALLY CONTINUING MONITORS OF THE WISDOM AND SOUNDESS OF
EXECUTIVE ACTION; SUCH A ROLE IS APPROPRIATE FOR THE CONGRESS ACTING
THROUGH ITS COMMITTEES AND THE "POWER OF THE PURSE"; IT IS NOT THE ROLE
OF THE JUDICIARY, ABSENT ACTUAL PRESENT OR IMMEDIATELY THREATENED
INJURY RESULTING FROM UNLAWFUL GOVERNMENTAL ACTION. 

WE, OF COURSE, INTIMATE NO VIEW WITH RESPECT TO THE PROPRIETY OR
DESIRABILITY, FROM A POLICY STANDPOINT, OF THE CHALLENGED ACTIVITIES OF
THE DEPARTMENT OF THE ARMY; OUR CONCLUSION IS A NARROW ONE, NAMELY,
THAT ON THIS RECORD THE RESPONDENTS HAVE NOT PRESENTED A CASE FOR
RESOLUTION BY THE COURTS. 

THE CONCERNS OF THE EXECUTIVE AND LEGISLATIVE BRANCHES IN RESPONSE
TO DISCLOSURE OF THE ARMY SURVEILLANCE ACTIVITIES-- AND INDEED THE
CLAIMS ALLEGED IN THE COMPLAINT-- REFLECT A TRADITIONAL AND STRONG
RESISTANCE OF AMERICANS TO ANY MILITARY INTRUSION INTO CIVILIAN
AFFIARS.  THAT TRADITION HAS DEEP ROOTS IN OUR HISTORY AND FOUND EARLY
EXPRESSION, FOR EXAMPLE, IN THE THIRD AMENDMENT'S EXPLICIT PROHIBITION
AGAINST QUARTERING SOLDIERS IN PRIVATE HOMES WITHOUT CONSENT AND IN THE
CONSTITUTIONAL PROVISIONS FOR CIVILIAN CONTROL OF THE MILITARY.  THOSE
PROHIBITIONS ARE NOT DIRECTLY PRESENTED BY THIS CASE, BUT THEIR
PHILOSOPHICAL UNDERPINNINGS EXPLAIN OUR TRADITIONAL INSISTENCE ON
LIMITATIONS ON MILITARY OPERATIONS IN PEACETIME.  INDEED, WHEN
PRESENTED WITH CLAIMS OF JUDICIALLY COGNIZABLE INJURY RESULTING FROM
MILITARY INTRUSION INTO THE CIVILIAN SECTOR, FEDERAL COURTS ARE FULLY
EMPOWERED TO CONSIDER CLAIMS OF THOSE ASSERTING SUCH INJURY; THERE IS
NOTHING IN OUR NATION'S HISTORY OR IN THIS COURT'S DECIDED CASES,
INCLUDING OUR HOLDING TODAY, THAT CAN PROPERLY BE SEEN AS GIVING ANY
INDICATION THAT ACTUAL OR THREATENED INJURY BY REASON OF UNLAWFUL
ACTIVITIES OF THE MILITARY WOULD GO UNNOTICED OR UNREMEDIED. 

              REVERSED. 

/1/  THE COMPLAINT FILED IN THE DISTRICT COURT CANDIDLY ASSERTED
THAT ITS FACTUAL ALLEGATIONS WERE BASED ON A MAGAZINE ARTICLE:  "THE
INFORMATION CONTAINED IN THE FOREGOING PARAGRAPHS NUMBERED FIVE THROUGH
THIRTEEN (OF THE COMPLAINT) WAS PUBLISHED IN THE JANUARY 1970 ISSUE OF
THE MAGAZINE THE WASHINGTON MONTHLY . . . . " 

/2/  "WHENEVER THERE IS AN INSURRECTION IN ANY STATE AGAINST ITS
GOVERNMENT, THE PRESIDENT MAY, UPON THE REQUEST OF ITS LEGISLATURE OR
OF ITS GOVERNOR IF THE LEGISLATURE CANNOT BE CONVENED, CALL INTO
FEDERAL SERVICE SUCH OF THE MILITIA OF THE OTHER STATES, IN THE NUMBER
REQUESTED BY THAT STATE, AND USE SUCH OF THE ARMED FORCES, AS HE
CONSIDERS NECESSARY TO SUPPRESS THE INSURRECTION." 

THE CONSTITUTIONALITY OF THIS STATUTE IS NOT AT ISSUE HERE; THE
SPECIFIC AUTHORIZATION OF SUCH USE OF FEDERAL ARMED FORCES, IN ADDITION
TO STATE MILITIA, APPEARS TO HAVE BEEN ENACTED PURSUANT TO ART. IV,
SEC. 4, OF THE CONSTITUTION, WHICH PROVIDES THAT "(THE UNITED STATES .
. . SHALL PROTECT EACH OF (THE INDIVIDUAL STATES) . . . ON APPLICATION
OF THE LEGISLATURE, OR OF THE EXECUTIVE (WHEN THE LEGISLATURE CANNOT BE
CONVENED) AGAINST DOMESTIC VIOLENCE." 

IN DESCRIBING THE REQUIREMENT OF 10 U.S.C. 331 FOR THE USE OF
FEDERAL TROOPS TO QUELL DOMESTIC DISORDERS, ATTORNEY GENERAL RAMSEY
CLARK MADE THE FOLLOWING STATEMENTS IN A LETTER SENT TO ALL STATE
GOVERNORS ON AUGUST 7, 1967: 

"THERE ARE THREE BASIC PREREQUISITES TO THE USE OF FEDERAL TROOPS IN
A STATE IN THE EVENT OF DOMESTIC VIOLENCE: 

"(1) THAT A SITUATION OF SERIOUS 'DOMESTIC VIOLENCE' EXISTS WITHIN
THE STATE.  WHILE THIS CONCLUSION SHOULD BE SUPPORTED WITH A STATEMENT
OF FACTUAL DETAILS TO THE EXTENT FEASIBLE UNDER THE CIRCUMSTANCES,
THERE IS NO PRESCRIBED WORDING. 

"(2) THAT SUCH VIOLENCE CANNOT BE BROUGHT UNDER CONTROL BY THE LAW
ENFORCEMENT RESOURCES AVAILABLE TO THE GOVERNOR, INCLUDING LOCAL AND
STATE POLICE FORCES AND THE NATIONAL GUARD.  THE JUDGMENT REQUIRED HERE
IS THAT THERE IS A DEFINITE NEED FOR THE ASSISTANCE OF FEDERAL TROOPS,
TAKING INTO ACCOUNT THE REMAINING TIME NEEDED TO MOVE THEM INTO ACTION
AT THE SCENE OF VIOLENCE. 

"(3) THAT THE LEGISLATURE OR THE GOVERNOR REQUESTS THE PRESIDENT TO
EMPLOY THE ARMED FORCES TO BRING THE VIOLENCE UNDER CONTROL.  THE
ELEMENT OF REQUEST BY THE GOVERNOR OF A STATE IS ESSENTIAL IF THE
LEGISLATURE CANNOT BE CONVENED.  IT MAY BE DIFFICULT IN THE CONTEXT OF
URBAN RIOTING, SUCH AS WE HAVE SEEN THIS SUMMER, TO CONVENE THE
LEGISLATURE. 

"THESE THREE ELEMENTS SHOULD BE EXPRESSED IN A WRITTEN COMMUNICATION
TO THE PRESIDENT, WHICH OF COURSE MAY BE A TELEGRAM, TO SUPPORT HIS
ISSUANCE OF A PROCLAMATION UNDER 10 U.S.C. 334 AND COMMITMENT OF TROOPS
TO ACTION.  IN CASE OF EXTREME EMERGENCY, RECEIPT OF A WRITTEN REQUEST
WILL NOT BE A PREREQUISITE TO PRESIDENTIAL ACTION.  HOWEVER, SINCE IT
TAKES SEVERAL HOURS TO ALERT AND MOVE FEDERAL TROOPS, THE FEW MINUTES
NEEDED TO WRITE AND DISPATCH A TELEGRAM ARE NOT LIKELY TO CAUSE ANY
DELAY. 

"UPON RECEIVING THE REQUEST FROM A GOVERNOR, THE PRESIDENT, UNDER
THE TERMS OF THE STATUTE AND THE HISTORIC PRACTICE, MUST EXERCISE HIS
OWN JUDGMENT AS TO WHETHER FEDERAL TROOPS WILL BE SENT, AND AS TO SUCH
QUESTIONS AS TIMING, SIZE OF THE FORCE, AND FEDERALIZATION OF THE
NATIONAL GUARD. 

"PRELIMINARY STEPS, SUCH AS ALERTING THE TROOPS, CAN BE TAKEN BY THE
FEDERAL GOVERNMENT UPON ORAL COMMUNICATIONS AND PRIOR TO THE GOVERNOR'S
DETERMINATION THAT THE VIOLENCE CANNOT BE BROUGHT UNDER CONTROL WITHOUT
THE AID OF FEDERAL FORCES.  EVEN SUCH PRELIMINARY STEPS, HOWEVER,
REPRESENT A MOST SERIOUS DEPARTURE FROM OUR TRADITIONS OF LOCAL
RESPONSIBILITY FOR LAW ENFORCEMENT.  THEY SHOULD NOT BE REQUESTED UNTIL
THERE IS A SUBSTANTIAL LIKELIHOOD THAT THE FEDERAL FORCES WILL BE
NEEDED." 

THIS ANALYSIS OF ATTORNEY GENERAL CLARK SUGGESTS THE IMPORTANCE OF
THE NEED FOR INFORMATION TO GUIDE THE INTELLIGENT USE OF MILITARY
FORCES AND TO AVOID "OVERKILL." 

/3/  TRANSLATED IN TERMS OF PERSONNEL, THIS PERCENTAGE FIGURE
SUGGESTS THAT THE TOTAL INTELLIGENCE OPERATION CONCERNED WITH POTENTIAL
CIVIL DISORDERS HARDLY MERITS DESCRIPTION AS "MASSIVE," AS ONE OF THE
DISSENTS CHARACTERIZES IT. 

/4/  THAT PRINCIPAL MISSION WAS DESCRIBED IN ONE OF THE DOCUMENTS
FILED WITH THE DISTRICT COURT AS THE CONDUCTING OF "INVESTIGATIONS TO
DETERMINE WHETHER UNIFORMED MEMBERS OF THE ARMY, CIVILIAN EMPLOYEES (OF
THE ARMY) AND CONTRACTORS' EMPLOYEES SHOULD BE GRANTED ACCESS TO
CLASSIFIED INFORMATION."  APP. 76-77. 

/5/  IN THE COURSE OF THE ORAL ARGUMENT, THE DISTRICT JUDGE SOUGHT
CLARIFICATION FROM RESPONDENTS' COUNSEL AS TO THE NATURE OF THE THREATS
PERCEIVED BY RESPONDENTS' HE ASKED WHAT EXACTLY IT WAS IN THE ARMY'S
ACTIVITIES THAT TENDED TO CHILL RESPONDENTS AND OTHERS IN THE EXERCISE
OF THEIR CONSTITUTIONAL RIGHTS.  COUNSEL RESPONDED THAT IT WAS 

"PRECISELY THE THREAT IN THIS CASE THAT IN SOME FUTURE CIVIL
DISORDER OF SOME KIND, THE ARMY IS GOING TO COME IN WITH ITS LIST OF
TROUBLEMAKERS . . . AND GO ROUNDING UP PEOPLE AND PUTTING THEM IN
MILITARY PRISONS SOMEWHERE." 

TO THIS THE COURT RESPONDED THAT "WE STILL SIT HERE WITH THE WRIT OF
HABEAS CORPUS."  AT ANOTHER POINT, COUNSEL FOR RESPONDENTS TOOK A
SOMEWHAT DIFFERENT APPROACH IN ARGUING THAT 

"WE'RE NOT QUITE SURE EXACTLY WHAT THEY HAVE IN MIND AND THAT IS
PRECISELY WHAT CAUSES THE CHILL, THE CHILLING EFFECT." 

/6/  INDEED, THE COURT OF APPEALS NOTED THAT IT HAD REACHED A
DIFFERENT CONCLUSION WHEN PRESENTED WITH A VIRTUALLY IDENTICAL ISSUE IN
ANOTHER OF ITS RECENTLY DECIDED CASES, DAVIS V. ICHORD, 143
U.S.APP.D.C. 183, 442 F.2D 1207 (1970).  THE PLAINTIFFS IN DAVIS WERE
ATTACKING THE CONSTITUTIONALITY OF THE HOUSE OF REPRESENTATIVES RULE
UNDER WHICH THE HOUSE COMMITTEE ON INTERNAL SECURITY CONDUCTS
INVESTIGATIONS AND MAINTAINS FILES DESCRIBED BY THE PLAINTIFFS AS A
"POLITICAL BLACKLIST."  THE COURT NOTED THAT ANY CHILLING EFFECT TO
WHICH THE PLAINTIFFS WERE SUBJECT AROSE FROM THE MERE EXISTENCE OF THE
COMMITTEE AND ITS FILES AND THE MERE POSSIBILITY OF THE MISUSE OF THOSE
FILES.  IN AFFIRMING THE DISMISSAL OF THE COMPLAINT, THE COURT
CONCLUDED THAT ALLEGATIONS OF SUCH A CHILLING EFFECT COULD NOT BE
ELEVATED TO A JUSTICIABLE CLAIM MERELY BY ALLEGING AS WELL THAT THE
CHALLENGED HOUSE RULE WAS OVERLY BROAD AND VAGUE. 

IN DECIDING THE CASE PRESENTLY UNDER REVIEW, THE COURT OF APPEALS
DISTINGUISHED DAVIS ON THE GROUND THAT THE DIFFERENCE IN THE SOURCE OF
THE CHILL IN THE TWO CASES-- A HOUSE COMMITTEE IN DAVIS AND THE ARMY IN
THE INSTANT CASE-- WAS CONTROLLING.  WE CANNOT AGREE THAT THE
JURISDICTIONAL QUESTION WITH WHICH WE ARE HERE CONCERNED IS TO BE
RESOLVED ON THE BASIS OF THE IDENTITY OF THE PARTIES NAMED AS
DEFENDANTS IN THE COMPLAINT. 

/7/  NOT ONLY HAVE RESPONDENTS LEFT SOMEWHAT UNCLEAR THE PRECISE
CONNECTION BETWEEN THE MERE EXISTENCE OF THE CHALLENGED SYSTEM AND
THEIR OWN ALLEGED CHILL, BUT THEY HAVE ALSO CAST CONSIDERABLE DOUBT ON
WHETHER THEY THEMSELVES ARE IN FACT SUFFERING FROM ANY SUCH CHILL. 
JUDGE MACKINNON TOOK COGENT NOTE OF THIS DIFFICULTY IN DISSENTING FROM
THE COURT OF APPEALS' JUDGMENT, RENDERED AS IT WAS "ON THE FACTS OF THE
CASE WHICH EMERGE FROM THE PLEADINGS, AFFIDAVITS AND THE ADMISSIONS
MADE TO THE TRIAL COURT."  144 U.S.APP.D.C.,AT 84, 444 F.2D, AT 959. 
AT THE ORAL ARGUMENT BEFORE THE DISTRICT COURT, COUNSEL FOR RESPONDENTS
ADMITTED THAT HIS CLIENTS WERE "NOT PEOPLE, OBVIOUSLY, WHO ARE COWED
AND CHILLED"; INDEED, THEY WERE QUITE WILLING "TO OPEN THEMSELVES UP TO
PUBLIC INVESTIGATION AND PUBLIC SCRUTINY."  BUT, COUNSEL ARGUED, THESE
RESPONDENTS MUST "REPRESENT MILLIONS OF AMERICANS NOT NEARLY AS FORWARD
(AND) COURAGEOUS" AS THEMSELVES.  IT WAS JUDGE MACKINNON'S VIEW THAT
THIS CONCESSION "CONSTITUTES A BASIC DENIAL OF PRACTICALLY THEIR WHOLE
CASE."  IBID.  EVEN ASSUMING A JUSTICIABLE CONTROVERSY, IF RESPONDENTS
THEMSELVES ARE NOT CHILLED, BUT SEEK ONLY TO REPRESENT THOSE "MILLIONS"
WHOM THEY BELIEVE ARE SO CHILLED, RESPONDENTS CLEARLY LACK THAT
"PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY" ESSENTIAL TO
STANDING.  BAKER V. CARR, 369 U.S. 186, 204 (1962).  AS THE COURT
RECENTLY OBSERVED IN MOOSE LODGE NO. 107 V. IRVIN, 407 U.S. 163, 166, A
LITIGANT "HAS STANDING TO SEEK REDRESS FOR INJURIES DONE TO HIM, BUT
MAY NOT SEEK REDRESS FOR INJURIES DONE TO OTHERS."     MR. JUSTICE
DOUGLAS, WITH WHOM MR. JUSTICE MARSHALL CONCURS, DISSENTING. 

        I 

IF CONGRESS HAD PASSED A LAW AUTHORIZING THE ARMED SERVICES TO
ESTABLISH SURVEILLANCE OVER THE CIVILIAN POPULATION, A MOST SERIOUS
CONSTITUTIONAL PROBLEM WOULD BE PRESENTED.  THERE IS, HOWEVER, NO LAW
AUTHORIZING SURVEILLANCE OVER CIVILIANS, WHICH IN THIS CASE THE
PENTAGON CONCEDEDLY HAD UNDERTAKEN.  THE QUESTION IS WHETHER SUCH
AUTHORITY MAY BE IMPLIED.  ONE CAN SEARCH THE CONSTITUTION IN VAIN FOR
ANY SUCH AUTHORITY. 

THE START OF THE PROBLEM IS THE CONSTITUTIONAL DISTINCTION BETWEEN
THE "MILITIA" AND THE ARMED FORCES.  BY ART. I, SEC. 8, OF THE
CONSTITUTION THE MILITIA IS SPECIFICALLY CONFINED TO PRECISE DUTES:
"TO EXECUTE THE LAWS OF THE UNION, SUPPRESS INSURRECTIONS AND REPEL
INVASIONS." 

THIS OBVIOUSLY MEANS THAT THE "MILITIA" CANNOT BE SENT OVERSEAS TO
FIGHT WARS.  IT IS PURELY A DOMESTIC ARM OF THE GOVERNORS OF THE
SEVERAL STATES, /1/  SAVE AS IT MAY BE CALLED UNDER ART. I, SEC. 8, OF
THE CONSTITUTION INTO THE FEDERAL SERVICE.  WHETHER THE "MILITIA" COULD
BE GIVEN POWERS COMPARABLE TO THOSE GRANTED THE FBI IS A QUESTION NOT
NOW RAISED, FOR WE DEAL HERE NOT WITH THE "MILITIA" BUT WITH "ARMIES." 
THE ARMY, NAVY, AND AIR FORCE ARE COMPREHENDED IN THE CONSTITUTIONAL
TERM "ARMIES."  ARTICLE I, SEC. 8, PROVIDES THAT CONGRESS MAY "RAISE
AND SUPPORT ARMIES," AND "PROVIDE AND MAINTAIN A NAVY," AND MAKE "RULES
FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES."  AND
THE FIFTH AMENDMENT EXCEPTS FROM THE REQUIREMENT OF A PRESENTMENT OR
INDICTMENT OF A GRAND JURY "CASES ARISING IN THE LAND OR NAVAL FORCES,
OR IN THE MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC
DANGER." 

ACTING UNDER THAT AUTHORITY, CONGRESS HAS PROVIDED A CODE GOVERNING
THE ARMED SERVICES.  THAT CODE SETS THE PROCEDURAL STANDARDS FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES.  IT IS
DIFFICULT TO IMAGINE HOW THOSE POWERS CAN BE EXTENDED TO MILITARY
SURVEILLANCE OVER CIVILIAN AFFAIRS.  /2/ 

THE MOST POINTED AND RELEVANT DECISIONS OF THE COURT ON THE
LIMITATION OF MILITARY AUTHORITY CONCERN THE ATTEMPT OF THE MILITARY TO
TRY CIVILIANS.  THE FIRST LEADING CASE WAS EX PARTE MILLIGAN, 4 WALL. 
2, 124, WHERE THE COURT NOTED THAT THE CONFLICT BETWEEN "CIVIL LIBERTY"
AND "MARTIAL LAW" IS "IRRECONCILABLE."  THE COURT WHICH MADE THAT
ANNOUNCEMENT WOULD HAVE BEEN HORRIFIED AT THE PROSPECT OF THE MILITARY-
ABSENT A REGIME OF MARTIAL LAW-- ESTABLISHING A REGIME OF SURVEILLANCE
OVER CIVILIANS.  THE POWER OF THE MILITARY TO ESTABLISH SUCH A SYSTEM
IS OBVIOUSLY LESS THAN THE POWER OF CONGRESS TO AUTHORIZE SUCH
SURVEILLANCE.  FOR THE AUTHORITY OF CONGRESS IS RESTRICTED BY ITS POWER
TO "RAISE" ARMIES, ART. I, SEC. 8; AND, TO REPEAT, ITS AUTHORITY OVER
THE ARMED FORCES IS STATED IN THESE TERMS, "TO MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES." 

THE CONSTITUTION CONTAINS MANY PROVISIONS GUARANTEEING RIGHTS TO
PERSONS.  THOSE INCLUDE THE RIGHT TO INDICTMENT BY A GRANT JURY AND THE
RIGHT TO TRIAL BY A JURY OF ONE'S PEERS.  THEY INCLUDE THE PROCEDURAL
SAFEGUARDS OF THE SIXTH AMENDMENT IN CRIMINAL PROSECUTIONS; THE
PROTECTION AGAINST DOUBLE JEOPARDY, CRUEL AND UNUSUAL PUNISHMENTS--
AND, OF COURSE, THE FIRST AMENDMENT.  THE ALARM WAS SOUNDED IN THE
CONSTITUTIONAL CONVENTION ABOUT THE DANGERS OF THE ARMED SERVICES. 
LUTHER MARTIN OF MARYLAND SAID, "WHEN A GOVERNMENT WISHES TO DEPRIVE
ITS CITIZENS OF FREEDOM, AND REDUCE THEM TO SLAVERY, IT GENERALLY MAKES
USE OF A STANDING ARMY."  /3/  THAT DANGER, WE HAVE HELD, EXISTS NOT
ONLY IN BOLD ACTS OF USURPATION OF POWER, BUT ALSO IN GRADUAL
ENCROACHMENTS.  WE HELD THAT COURT-MARTIAL JURISDICTION CANNOT BE
EXTENDED TO REACH ANY PERSON NOT A MEMBER OF THE ARMED FORCES AT THE
TIMES BOTH OF THE OFFENSE AND OF THE TRIAL, WHICH ELIMINATES DISCHARGED
SOLDIERS.  TOTH V. QUARLES, 350 U.S. 11.  NEITHER CIVILIAN EMPLOYEES OF
THE ARMED FORCES OVERSEAS, MCELROY V. GUAGLIARDO, 361 U.S. 281; GRISHAM
V. HAGAN, 361 U.S. 278, NOR CIVILIAN DEPENDENTS OF MILITARY PERSONNEL
ACCOMPANYING THEM OVERSEAS, KINSELLA V. SINGLETON, 361 U.S. 234; REID
V. COVERT, 354 U.S. 1, MAY BE TRIED BY COURT-MARTIAL.  AND EVEN AS
RESPECTS THOSE IN THE ARMED FORCES WE HAVE HELD THAT AN OFFENSE MUST BE
"SERVICE CONNECTED" TO BE TRIED BY COURT-MARTIAL RATHER THAN BY A
CIVILIAN TRIBUNAL.  O'CALLAHAN V. PARKER, 395 U.S. 258, 272. 

THE UPSHOT IS THAT THE ARMED SERVICES-- AS DISTINGUISHED FROM THE
"MILITIA"-- ARE NOT REGULATORY AGENCIES OR BUREAUS THAT MAY BE CREATED
AS CONGRESS DESIRES AND GRANTED SUCH POWERS AS SEEM NECESSARY AND
PROPER.  THE AUTHORITY TO PROVIDE RULES "GOVERNING" THE ARMED SERVICES
MEANS THE GRANT OF AUTHORITY TO THE ARMED SERVICES TO GOVERN
THEMSELVES, NOT THE AUTHORITY TO GOVERN CIVILIANS.  EVEN WHEN "MARTIAL
LAW" IS DECLARED, AS IT OFTEN HAS BEEN, ITS APPROPRIATENESS IS SUBJECT
TO JUDICIAL REVIEW, STERLING V. CONSTANTIN, 287 U.S. 378, 401, 403
404.  /4/ 

OUR TRADITION REFLECTS A DESIRE FOR CIVILIAN SUPREMACY AND
SUBORDINATION OF MILITARY POWER.  THE TRADITION GOES BACK TO THE
DECLARATION OF INDEPENDENCE, IN WHICH IT WAS RECITED THAT THE KING "HAS
AFFECTED TO RENDER THE MILITARY INDEPENDENT OF AND SUPERIOR TO THE
CIVIL POWER."  THUS, WE HAVE THE "MILITIA" RESTRICTED TO DOMESTIC USE,
THE RESTRICTION OF APPROPRIATIONS TO THE "ARMIES" TO TWO YEARS, ART. I,
SEC. 8, AND THE GRANT OF COMMAND OVER THE ARMIES AND THE MILITIA WHEN
CALLED INTO ACTUAL SERVICE OF THE UNITED STATES TO THE PRESIDENT, OUR
CHIEF CIVILIAN OFFICER.  THE TRADITION OF CIVILIAN CONTROL OVER THE
ARMED FORCES WAS STATED BY CHIEF JUSTICE WARREN:  /5/ 

"THE MILITARY ESTABLISHMENT IS, OF COURSE, A NECESSARY ORGAN OF
GOVERNMENT; BUT THE REACH OF ITS POWER MUST BE CAREFULLY LIMITED LEST
THE DELICATE BALANCE BETWEEN FREEDOM AND ORDER BE UPSET.  THE
MAINTENANCE OF THE BALANCE IS MADE MORE DIFFICULT BY THE FACT THAT
WHILE THE MILITARY SERVES THE VITAL FUNCTION OF PRESERVING THE
EXISTENCE OF THE NATION, IT IS, AT THE SAME TIME, THE ONE ELEMENT OF
GOVERNMENT THAT EXERCISES A TYPE OF AUTHORITY NOT EASILY ASSIMILATED IN
A FREE SOCIETY.  . . . 

    "IN TIMES OF PEACE, THE FACTORS LEADING TO AN EXTRAORDINARY

  DEFERENCE TO CLAIMS OF MILITARY NECESSITY HAVE NATURALLY NOT BEEN

  AS WEIGHTY.  THIS HAS BEEN TRUE EVEN IN THE ALL TOO IMPERFECT

  PEACE THAT HAS BEEN OUR LOT FOR THE FIFTEEN YEARS-- AND QUITE

  RIGHTLY SO, IN MY JUDGMENT.  IT IS INSTRUCTIVE TO RECALL THAT OUR

  NATION AT THE TIME OF THE CONSTITUTIONAL CONVENTION WAS ALSO

  FACED WITH FORMIDABLE PROBLEMS.  THE ENGLISH, THE FRENCH, THE

  SPANISH, AND VARIOUS TRIBES OF HOSTILE INDIANS WERE ALL READY AND

EAGER TO SUBVERT OR OCCUPY THE FLEDGLING REPUBLIC.  NEVERTHELESS,

  IN THAT ENVIRONMENT, OUR FOUNDING FATHERS CONCEIVED A

  CONSTITUTION AND BILL OF RIGHTS REPLETE WITH PROVISIONS

  INDICATING THEIR DETERMINATION TO PROTECT HUMAN RIGHTS.  THERE

  WAS NO CALL FOR A GARRISON STATE IN THOSE TIMES OF PRECARIOUS

  PEACE.  WE SHOULD HEED NO SUCH CALL NOW.  IF WE WERE TO FAIL IN

  THESE DAYS TO ENFORCE THE FREEDOM THAT UNTIL NOW HAS BEEN THE

  AMERICAN CITIZEN'S BIRTHRIGHT, WE WOULD BE ABANDONING FOR THE

  FORESEEABLE FUTURE THE CONSTITUTIONAL BALANCE OF POWERS AND

  RIGHTS IN WHOSE NAME WE ARM." 

THUS, WE HAVE UNTIL TODAY CONSISTENTLY ADHERED TO THE BELIEF THAT 

"(IT IS AN UNBENDING RULE OF LAW, THAT THE EXERCISE OF MILITARY
POWER, WHERE THE RIGHTS OF THE CITIZEN ARE CONCERNED, SHALL NEVER BE
PUSHED BEYOND WHAT THE EXIGENCY REQUIRES."  RAYMOND V. THOMAS, 91 U.S.
712, 716. 

IT WAS IN THAT TRADITION THAT YOUNGSTOWN SHEET & TUBE CO. V. SAWYER,
343 U.S. 579, WAS DECIDED, IN WHICH PRESIDENT TRUMAN'S SEIZURE OF THE
STEEL MILLS IN THE SO-CALLED KOREAN WAR WAS HELD UNCONSTITUTIONAL.  AS
STATED BY JUSTICE BLACK: 

     "THE ORDER CANNOT PROPERLY BE SUSTAINED AS AN EXERCISE OF THE

  PRESIDENT'S MILITARY POWER AS COMMANDER IN CHIEF OF THE ARMED

  FORCES.  THE GOVERNMENT ATTEMPTS TO DO SO BY CITING A NUMBER OF

  CASES UPHOLDING BROAD POWERS IN MILITARY COMMANDERS ENGAGED IN

  DAY-TO-DAY FIGHTING IN A THEATER OF WAR.  SUCH CASES NEED NOT

  CONCERN US HERE.  EVEN THOUGH 'THEATER OF WAR' BE AN EXPANDING

  CONCEPT, WE CANNOT WITH FAITHFULNESS TO OUR CONSTITUTIONAL SYSTEM

  HOLD THAT THE COMMANDER IN CHIEF OF THE ARMED FORCES HAS THE

  ULTIMATE POWER AS SUCH TO TAKE POSSESSION OF PRIVATE PROPERTY IN

  ORDER TO KEEP LABOR DISPUTES FROM STOPPING PRODUCTION.  THIS IS A

  JOB FOR THE NATION'S LAWMAKERS, NOT FOR ITS MILITARY

  AUTHORITIES."  ID., AT 587. 

MADISON EXPRESSED THE FEAR OF MILITARY DOMINANCE:  /6/ 

"THE VETERAN LEGIONS OF ROME WERE AN OVERMATCH FOR THE UNDISCIPLINED
VALOR OF ALL OTHER NATIONS, AND RENDERED HER THE MISTRESS OF THE
WORLD. 

     "NOT THE LESS TRUE IS IT, THAT THE LIBERTIES OF ROME PROVED
THE

  FINAL VICTIM TO HER MILITARY TRIUMPHS; AND THAT THE LIBERTIES OF

  EUROPE, AS FAR AS THEY EVER EXISTED, HAVE, WITH FEW EXCEPTIONS,

  BEEN THE PRICE OF HER MILITARY TRIUMPHS; AND THAT THE LIBERTIES

  OF EUROPE, AS FAR AS THEY EVER EXISTED, HAVE, WITH FEW

  EXCEPTIONS, BEEN THE PRICE OF HER MILITARY ESTABLISHMENTS.  A

  STANDING FORCE, THEREFORE, IS A DANGEROUS, AT THE SAME TIME THAT

  IT MAY BE A NECESSARY, PROVISION.  ON THE SMALLEST SCALE IT HAS

  ITS INCONVENIENCES.  ON AN EXTENSIVE SCALE ITS CONSEQUENCES MAY

  BE FATAL. 

ON ANY SCALE IT IS AN OBJECT OF LAUDABLE CIRCUMSPECTION AND

 PRECAUTION.  A WISE NATION WILL COMBINE ALL THESE CONSIDERATIONS;
AND, WHILST IT DOES NOT

  RASHLY PRECLUDE ITSELF FROM ANY RESOURCE WHICH MAY BECOME
ESSENTIAL TO ITS SAFETY, WILL EXERT

  ALL ITS PRUDENCE IN DIMINISHING BOTH THE NECESSITY AND THE DANGER
OF RESORTING TO ONE WHICH

  MAY BE INAUSPICIOUS TO ITS LIBERTIES. 

     "THE CLEAREST MARKS OF THIS PRUDENCE ARE STAMPED ON THE

  PROPOSED CONSTITUTION.  THE UNION ITSELF, WHICH IT CEMENTS AND

  SECURES, DESTROYS EVERY PRETEXT FOR A MILITARY ESTABLISHMENT

  WHICH COULD BE DANGEROUS.  AMERICA UNITED, WITH A HANDFUL OF

  TROOPS, OR WITHOUT A SINGLE SOLDIER, EXHIBITS A MORE FORBIDDING

  POSTURE TO FOREIGN AMBITION THAN AMERICA DISUNITED, WITH A

HUNDRED THOUSAND VETERANS READY FOR COMBAT." 

AS CHIEF JUSTICE WARREN HAS OBSERVED, THE SAFEGUARDS IN THE MAIN
BODY OF THE CONSTITUTION DID NOT SATISFY THE PEOPLE ON THEIR FEAR AND
CONCERN OF MILITARY DOMINANCE:  /7/ 

"THEY WERE RELUCTANT TO RATIFY THE CONSTITUTION WITHOUT FURTHER
ASSURANCES, AND THUS WE FIND IN THE BILL OF RIGHTS AMENDMENTS 2 AND 3,
SPECIFICALLY AUTHORIZING A DECENTRALIZED MILITIA, GUARANTEEING THE
RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, AND PROHIBITING THE
QUARTERING OF TROOPS IN ANY HOUSE IN TIME OF PEACE WITHOUT THE CONSENT
OF THE OWNER.  OTHER AMENDMENTS GUARANTEE THE RIGHT OF THE PEOPLE TO
ASSEMBLE, TO BE SECURE IN THEIR HOMES AGAINST UNREASONABLE SEARCHES AND
SEIZURES, AND IN CRIMINAL CASES TO BE ACCORDED A SPEEDY AND PUBLIC
TRIAL BY AN IMPARTIAL JURY AFTER INDICTMENT IN THE DISTRICT AND STATE
WHEREIN THE CRIME WAS COMMITTED.  THE ONLY EXCEPTIONS MADE TO THESE
CIVILIAN TRIAL PROCEDURES ARE FOR CASES ARISING IN THE LAND AND NAVAL
FORCES.  ALTHOUGH THERE IS UNDOUBTEDLY ROOM FOR ARGUMENT BASED ON THE
FREQUENTLY CONFLICTING SOURCES OF HISTORY, IT IS NOT UNREASONABLE TO
BELIEVE THAT OUR FOUNDERS' DETERMINATION TO GUARANTEE THE PREEMINENCE
OF CIVIL OVER MILITARY POWER WAS AN IMPORTANT ELEMENT THAT PROMPTED
ADOPTION OF THE CONSTITUTIONAL AMENDMENTS WE CALL THE BILL OF RIGHTS." 

THE ACTION IN TURNING THE "ARMIES" LOOSE ON SURVEILLANCE OF
CIVILIANS WAS A GROSS REPUDIATION OF OUR TRADITIONS.  THE MILITARY,
THOUGH IMPORTANT TO US, IS SUBSERVIENT AND RESTRICTED PURELY TO
MILITARY MISSIONS.  IT EVEN TOOK AN ACT OF CONGRESS TO ALLOW A MEMBER
OF THE JOINT CHIEFS OF STAFF TO ADDRESS THE CONGRESS; /8/  AND THAT
SMALL STEP DID NOT GO UNNOTICED BUT WAS IN FACT VIEWED WITH ALARM BY
THOSE RESPECTFUL OF THE CIVILIAN TRADITION.  WALTER LIPPMANN HAS
WRITTEN THAT DURING WORLD WAR II, HE WAS ASKED TO CONVEY A MESSAGE TO
WINSTON CHURCHILL, WHILE THE LATTER WAS IN WASHINGTON TOGETHER WITH HIS
CHIEFS OF STAFF.  IT WAS DESIRED THAT CHURCHILL SHOULD PERMIT HIS
CHIEFS OF STAFF TO TESTIFY BEFORE CONGRESS AS TO THE PROPER STRATEGY
FOR WAGING THE WAR.  LIPPMANN EXPLAINS, HOWEVER, THAT HE "NEVER
FINISHED THE MESSAGE.  FOR THE OLD LION LET OUT A ROAR DEMANDING TO
KNOW WHY I WAS SO IGNORANT OF THE BRITISH WAY OF DOING THINGS THAT I
COULD DARE TO SUGGEST THAT A BRITISH GENERAL SHOULD ADDRESS A
PARLIAMENTARY BODY. 

     "AS I REMEMBER IT, WHAT HE SAID WAS 'I AM THE MINISTER OF

  DEFENSE AND I, NOT THE GENERALS, WILL STATE THE POLICY OF HIS

  MAJESTY'S GOVERNMENT.'"  THE INTERVENTION OF THE GENERAL,

  WASHINGTON, POST, APR. 27, 1967, SEC. A, P. 21, COL. 1.  /9/ 

THE ACT OF TURNING THE MILITARY LOOSE ON CIVILIANS EVEN IF
SANCTIONED BY AN ACT OF CONGRESS, WHICH IT HAS NOT BEEN, WOULD RAISE
SERIOUS AND PROFOUND CONSTITUTIONAL QUESTIONS.  STANDING AS IT DOES
ONLY ON BRUTE POWER AND PENTAGON POLICY, IT MUST BE REPUDIATED AS A
USURPATION DANGEROUS TO THE CIVIL LIBERTIES ON WHICH FREE MEN ARE
DEPENDENT.  FOR, AS SENATOR SAM ERVIN HAS SAID, "THIS CLAIM OF AN
INHERENT EXECUTIVE BRANCH POWER OF INVESTIGATION AND SURVEILLANCE ON
THE BASIS OF PEOPLE'S BELIEFS AND ATTITUDES MAY BE MORE OF A THREAT TO
OUR INTERNAL SECURITY THAN ANY ENEMIES BEYOND OUR BORDERS."  PRIVACY
AND GOVERNMENT INVESTIGATIONS, 1971 U.ILL.L.F. 137, 153. 
II 

THE CLAIM THAT RESPONDENTS HAVE NO STANDING TO CHALLENGE THE ARMY'S
SURVEILLANCE OF THEM AND THE OTHER MEMBERS OF THE CLASS THEY SEEK TO
REPRESENT IS TOO TRANSPARENT FOR SERIOUS ARGUMENT.  THE SURVEILLANCE OF
THE ARMY OVER THE CIVILIAN SECTOR-- A PART OF SOCIETY HITHERTO IMMUNE
FROM ITS CONTROL-- IS A SERIOUS CHARGE.  IT IS ALLEGED THAT THE ARMY
MAINTAINS FILES ON THE MEMBERSHIP, IDEALOGY, PROGRAMS, AND PRACTICES OF
VIRTUALLY EVERY ACTIVIST POLITICAL GROUP IN THE COUNTRY, INCLUDING
GROUPS SUCH AS THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, CLERGY AND
LAYMEN UNITED AGAINST THE WAR IN VIETNAM, THE AMERICAN CIVIL LIBERTIES
UNION, WOMEN'S STRIKE FOR PEACE, AND THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE.  THE ARMY USES UNDERCOVER AGENTS TO
INFILTRATE THESE CIVILIAN GROUPS AND TO REACH INTO CONFIDENTIAL FILES
OF STUDENTS AND OTHER GROUPS.  THE ARMY MOVES AS A SECRET GROUP AMONG
CIVILIAN AUDIENCES, USING CAMERAS AND ELECTRONIC EARS FOR
SURVEILLANCE.  THE DATA IT COLLECTS ARE DISTRIBUTED TO CIVILIAN
OFFICIALS IN STATE, FEDERAL, AND LOCAL GOVERNMENTS AND TO EACH MILITARY
INTELLIGENCE UNIT AND TROOP COMMAND UNDER THE ARMY'S JURISDICTION (BOTH
HERE AND ABROAD); AND THESE DATA ARE STORED IN ONE OR MORE DATA BANKS. 

THOSE ARE THE ALLEGATIONS; AND THE CHARGE IS THAT THE PURPOSE AND
EFFECT OF THE SYSTEM OF SURVEILLANCE IS TO HARASS AND INTIMIDATE THE
RESPONDENTS AND TO DETER THEM FROM EXERCISING THEIR RIGHTS OF POLITICAL
EXPRESSION, PROTEST, AND DISSENT "BY INVADING THEIR PRIVACY, DAMAGING
THEIR REPUTATIONS, ADVERSELY AFFECTING THEIR EMPLOYMENT AND THEIR
OPPORTUNITIES FOR EMPLOYMENT, AND IN OTHER WAYS."  THEIR FEAR IS THAT
"PERMANENT REPORTS OF THEIR ACTIVITIES WILL BE MAINTAINED IN THE ARMY'S
DATA BANK, AND THEIR 'PROFILES' WILL APPEAR IN THE SO-CALLED
'BLACKLIST' AND THAT ALL OF THIS INFORMATION WILL BE RELEASED TO
NUMEROUS FEDERAL AND STATE AGENCIES UPON REQUEST." 

JUDGE WILKEY, SPEAKING FOR THE COURT OF APPEALS, PROPERLY INFERRED
THAT THIS ARMY SURVEILLANCE "EXERCISES A PRESENT INHIBITING EFFECT ON
THEIR FULL EXPRESSION AND UTILIZATION OF THEIR FIRST AMENDMENT
RIGHTS."  144 U.S.APP.D.C. 72, 79, 444 F.2D 947, 954.  THAT IS THE
TEST.  THE "DETERRENT EFFECT" ON FIRST AMENDMENT RIGHTS BY GOVERNMENT
OVERSIGHT MARKS AN UNCONSTITUTIONAL INTRUSION, LAMONT V. POSTMASTER
GENERAL, 381 U.S. 301, 307.  OR, AS STATED BY MR. JUSTICE BRENNAN,
"INHIBITION AS WELL AS PROHIBITION AGAINST THE EXERCISE OF PRECIOUS
FIRST AMENDMENT RIGHTS IS A POWER DENIED TO GOVERNMENT."  ID., AT 309. 
WHEN REFUSAL OF THE COURT TO PASS ON THE CONSTITUTIONALITY OF AN ACT
UNDER THE NORMAL CONSIDERATION OF FORBEARANCE "WOULD ITSELF HAVE AN
INHIBITORY EFFECT ON FREEDOM OF SPEECH" THEN THE COURT WILL ACT. 
UNITED STATES V. RAINES, 362 U.S. 17, 22. 

AS STATED BY THE SUPREME COURT OF NEW JERSEY, "THERE IS GOOD REASON
TO PERMIT THE STRONG TO SPEAK FOR THE WEAK OR THE TIMID IN FIRST
AMENDMENT MATTERS."  ANDERSON V. SILLS, 56 N.J. 210, 220, 265 A.2D 678,
684 (1970). 

ONE NEED NOT WAIT TO SUE UNTIL HE LOSES HIS JOB OR UNTIL HIS
REPUTATION IS DEFAMED.  TO WITHHOLD STANDING TO SUE UNTIL THAT TIME
ARRIVES WOULD IN PRACTICAL EFFECT IMMUNIZE FROM JUDICIAL SCRUTINY ALL
SURVEILLANCE ACTIVITIES, REGARDLESS OF THEIR MISUSE AND THEIR DETERRENT
EFFECT.  AS STATED IN FLAST V. COHEN, 392 U.S. 83, 101, "IN TERMS OF
ARTICLE III LIMITATIONS ON FEDERAL COURT JURISDICTION, THE QUESTION OF
STANDING IS RELATED ONLY TO WHETHER THE DISPUTE SOUGHT TO BE
ADJUDICATED WILL BE PRESENTED IN AN ADVERSARY CONTEXT AND IN A FORM
HISTORICALLY VIEWED AS CAPABLE OF JUDICIAL RESOLUTION."  OR, AS WE PUT
IT IN BAKER V. CARR, 369 U.S. 186, 204, THE GIST OF THE STANDING ISSUE
IS WHETHER THE PARTY SEEKING RELIEF HAS "ALLEGED SUCH A PERSONAL STAKE
IN THE OUTCOME OF THE CONTROVERSY AS TO ASSURE THAT CONCRETE
ADVERSENESS WHICH SHARPENS THE PRESENTATION OF ISSUES UPON WHICH THE
COURT SO LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULT CONSTITUTIONAL
QUESTIONS." 

THE PRESENT CONTROVERSY IS NOT A REMOTE, IMAGINARY CONFLICT. 
RESPONDENTS WERE TARGETS OF THE ARMY'S SURVEILLANCE.  FIRST, THE
SURVEILLANCE WAS NOT CASUAL BUT MASSIVE AND COMPREHENSIVE.  SECOND, THE
INTELLIGENCE REPORTS WERE REGULARLY AND WIDELY CIRCULATED AND WERE
EXCHANGED WITH REPORTS OF THE FBI, STATE AND MUNICIPAL POLICE
DEPARTMENTS, AND THE CIA.  THIRD, THE ARMY'S SURVEILLANCE WAS NOT
COLLECTING MATERIAL IN PUBLIC RECORDS BUT STAKING OUT TEAMS OF AGENTS,
INFILTRATING UNDERCOVER AGENTS, CREATING COMMAND POSTS INSIDE MEETINGS,
POSING AS PRESS PHOTOGRAPHERS AND NEWSMEN, POSING AS TV NEWSMEN, POSING
AS STUDENTS, AND SHADOWING PUBLIC FIGURES. 

FINALLY, WE KNOW FROM THE HEARINGS CONDUCTED BY SENATOR ERVIN THAT
THE ARMY HAS MISUSED OR ABUSED ITS REPORTING FUNCTIONS.  THUS, SENATOR
ERVIN CONCLUDED THAT REPORTS OF THE ARMY HAVE BEEN "TAKEN FROM THE
INTELLIGENCE COMMAND'S HIGHLY INACCURATE CIVIL DISTURBANCE TELETYPE AND
FILED IN ARMY DOSSIERS ON PERSONS WHO HAVE HELD, OR WERE BEING
CONSIDERED FOR, SECURITY CLEARANCES THUS CONTAMINATING WHAT ARE
SUPPOSED TO BE INVESTIGATIVE REPORTS WITH UNVERIFIED GOSSIP AND RUMOR. 
THIS PRACTICE DIRECTLY JEOPARDIZED THE EMPLOYMENT AND EMPLOYMENT
OPPORTUNITIES OF PERSONS SEEKING SENSITIVE POSITIONS WITH THE FEDERAL
GOVERNMENT OR DEFENSE INDUSTRY."  /10/ 

SURVEILLANCE OF CIVILIANS IS NONE OF THE ARMY'S CONSTITUTIONAL
BUSINESS AND CONGRESS HAS NOT UNDERTAKEN TO ENTRUST IT WITH ANY SUCH
FUNCTION.  THE FACT THAT SINCE THIS LITIGATION STARTED THE ARMY'S
SURVEILLANCE MAY HAVE BEEN CUT BACK IS NOT AN END OF THE MATTER. 
WHETHER THERE HAS BEEN AN ACTUAL CUTBACK OR WHETHER THE ANNOUNCEMENTS
ARE MERELY A RUSE CAN BE DETERMINED ONLY AFTER A HEARING IN THE
DISTRICT COURT.  WE ARE ADVISED BY AN AMICUS CURIAE BRIEF FILED BY A
GROUP OF FORMER ARMY INTELLIGENCE AGENTS THAT ARMY SURVEILLANCE OF
CIVILIANS IS ROOTED IN SECRET PROGRAMS OF LONG STANDING: 

"ARMY INTELLIGENCE HAS BEEN MAINTAINING AN UNAUTHORIZED WATCH OVER
CIVILIAN POLITICAL ACTIVITY FOR NEARLY 30 YEARS.  NOR IS THIS THE FIRST
TIME THAT ARMY INTELLIGENCE HAS, WITHOUT NOTICE TO ITS CIVILIAN
SUPERIORS, OVERSTEPPED ITS MISSION.  FROM 1917 TO 1924, THE CORPS OF
INTELLIGENCE POLICE MAINTAINED A MASSIVE SURVEILLANCE OF CIVILIAN
POLITICAL ACTIVITY WHICH INVOLVED THE USE OF HUNDREDS OF CIVILIAN
INFORMANTS, THE INFILTRATION OF CIVILIAN ORGANIZATIONS AND THE SEIZURE
OF DISSENTERS AND UNIONISTS, SOMETIMES WITHOUT CHARGES.  THAT ACTIVITY
WAS OPPOSED-- THEN AS NOW-- BY CIVILIAN OFFICIALS ON THOSE OCCASIONS
WHEN THEY FOUND OUT ABOUT IT, BUT IT CONTINUED UNABATED UNTIL POST-WAR
DISARMAMENT AND ECONOMIES FINALLY ELIMINATED THE BUREAUCRACY THAT
CONDUCTED IT."  PP. 29-30. 

THIS CASE INVOLVES A CANCER IN OUR BODY POLITIC.  IT IS A MEASURE OF
THE DISEASE WHICH AFFLICTS US.  ARMY SURVEILLANCE, LIKE ARMY
REGIMENTATION, IS AT WAR WITH THE PRINCIPLES OF THE FIRST AMENDMENT. 
THOSE WHO ALREADY WALK SUBMISSIVELY WILL SAY THERE IS NO CAUSE FOR
ALARM.  BUT SUBMISSIVENESS IS NOT OUR HERITAGE.  THE FIRST AMENDMENT
WAS DESIGNED TO ALLOW REBELLION TO REMAIN AS OUR HERITAGE.  THE
CONSTITUTION WAS DESIGNED TO KEEP GOVERNMENT OFF THE BACKS OF THE
PEOPLE.  THE BILL OF RIGHTS WAS ADDED TO KEEP THE PRECINCTS OF BELIEF
AND EXPRESSION, OF THE PRESS, OF POLITICAL AND SOCIAL ACTIVITIES FREE
FROM SURVEILLANCE.  THE BILL OF RIGHTS WAS DESIGNED TO KEEP AGENTS OF
GOVERNMENT AND OFFICIAL EAVESDROPPERS AWAY FROM ASSEMBLIES OF PEOPLE. 
THE AIM WAS TO ALLOW MEN TO BE FREE AND INDEPENDENT AND TO ASSERT THEIR
RIGHTS AGAINST GOVERNMENT.  THERE CAN BE NO INFLUENCE MORE PARALYZING
OF THAT OBJECTIVE THAN ARMY SURVEILLANCE.  WHEN AN INTELLIGENCE OFFICER
LOOKS OVER EVERY NONCONFORMIST"S SHOULDER IN THE LIBRARY, OR WALKS
INVISIBLY BY HIS SIDE IN A PICKET LINE, OR INFILTRATES HIS CLUB, THE
AMERICA ONCE EXTOLLED AS THE VOICE OF LIBERTY HEARD AROUND THE WORLD NO
LONGER IS CAST IN THE IMAGE WHICH JEFFERSON AND MADISON DESIGNED, BUT
MORE IN THE RUSSIAN IMAGE, DEPICTED IN APPENDIX III TO THIS OPINION. 

/1/  I HAVE EXPRESSED BY DOUBTS WHETHER THE "MILITIA" LOSES ITS
CONSTITUTIONAL ROLE BY AN ACT OF CONGRESS WHICH INCORPORATES IT IN THE
ARMED SERVICES.  DRIFKA V. BRAINARD, 89 S.CT. 434, 21 L.ED.2D 427. 

/2/  SEE APPENDIX I TO THIS OPINION, INFRA, P. 29. 

/3/  M. FARRAND, RECORDS OF THE FEDERAL CONVENTION 209 (1911). 

/4/  EVEN SOME ACTIONS OF THE ARMED SERVICES IN REGULATING THEIR OWN
CONDUCT MAY BE PROPERLY SUBJECTED TO JUDICIAL SCRUTINY.  THOSE WHO ARE
NOT YET IN THE ARMED SERVICES HAVE THE PROTECTION OF THE FULL PANOPLY
OF THE LAWS GOVERNING ADMISSION PROCEDURES, SEE, E.G., MCKART V. UNITED
STATES, 395 U.S. 185; OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S.
233.  THOSE IN THE SERVICE MAY USE HABEAS CORPUS TO TEST THE
JURISDICTION OF THE ARMED SERVICES TO TRY OR DETAIN THEM, SEE, E.G.,
PARISI V. DAVIDSON, 405 U.S. 34; NOYD V. BOND, 395 U.S. 683, 696 N. 8;
REID V. COVERT, 354 U.S. 1; BILLINGS V. TRUESDELL, 321 U.S. 542.  AND,
THOSE IN THE ARMED SERVICES MAY SEEK THE PROTECTION OF CIVILIAN, RATHER
THAN MILITARY, COURTS WHEN CHARGED WITH CRIMES NOT SERVICE CONNECTED,
O'CALLAHAN V. PARKER, 395 U.S. 258. 

/5/  THE BILL OF RIGHTS AND THE MILITARY, 37 N.Y.U.L.REV.  181, 182,
193 (1962). 

/6/  THE FEDERALIST NO. 41. 

/7/  N. 5, SUPRA, AT 185. 

/8/  THE NATIONAL SECURITY ACT OF 1947, AMENDED BY SEC. 5 OF THE ACT
OF AUG. 10, 1949, 63 STAT. 580, PROVIDED IN SEC. 202(C)(6): 

"NO PROVISION OF THIS ACT SHALL BE SO CONSTRUED AS TO PREVENT A
SECRETARY OF A MILITARY DEPARTMENT OR A MEMBER OF THE JOINT CHIEFS OF
STAFF FROM PRESENTING TO THE CONGRESS, ON HIS OWN INITIATIVE, AFTER
FIRST SO INFORMING THE SECRETARY OF DEFENSE, ANY RECOMMENDATION
RELATING TO THE DEPARTMENT OF DEFENSE THAT HE MAY DEEM PROPER."  SEE
H.R. CONF. REP. NO. 1142, 81ST CONG., 1ST SESS., 18.  THIS PROVISION IS
NOW CODIFIED AS 10 U.S.C. 141(E). 

/9/  THE FULL ACCOUNT IS CONTAINED IN APPENDIX II, INFRA, AT 33. 

/10/  HEARINGS ON FEDERAL DATA BANKS, COMPUTERS AND THE BILL OF
RIGHTS, BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE
COMMITTEE ON THE JUDICIARY, 92D CONG., 1ST SESS. (1971). 

        APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING 

THE NARROWLY CIRCUMSCRIBED DOMESTIC ROLE WHICH CONGRESS HAS BY
STATUTE AUTHORIZED THE ARMY TO PLAY IS CLEARLY AN INSUFFICIENT BASIS
FOR THE WHOLESALE CIVILIAN SURVEILLANCE OF WHICH RESPONDENTS COMPLAIN. 
THE ENTIRE DOMESTIC MISSION OF THE ARMED SERVICES IS DELIMITED BY NINE
STATUTES. 

FOUR DEFINE THE ARMY'S NARROW ROLE AS A BACK-UP FOR CIVILIAN
AUTHORITY WHERE THE LATTER HAS PROVED INSUFFICIENT TO COPE WITH
INSURRECTION: 

10 U.S.C. 331: 

"WHENEVER THE PRESIDENT CONSIDERS THAT UNLAWFUL OBSTRUCTIONS,
COMBINATIONS, OR ASSEMBLAGES, OR REBELLION AGAINST THE AUTHORITY OF THE
UNITED STATES, MAKE IT IMPRACTICABLE TO ENFORCE THE LAWS OF THE UNITED
STATES IN ANY STATE OR TERRITORY BY THE ORDINARY COURSE OF JUDICIAL
PROCEEDINGS, HE MAY CALL INTO FEDERAL SERVICE SUCH OF THE MILITIA OF
ANY STATE, AND USE SUCH OF THE ARMED FORCES, AS HE CONSIDERS NECESSARY
TO ENFORCE THOSE LAWS OR TO SUPPRESS THE REBELLION." 

10 U.S.C. 332: 

"WHENEVER THE PRESIDENT CONSIDERS THAT UNLAWFUL OBSTRUCTIONS,
COMBINATIONS, OR ASSEMBLAGES, OR REBELLION AGAINST THE AUTHORITY OF THE
UNITED STATES, MAKE IMPRACTICABLE TO ENFORCE THE LAWS OF THE UNITED
STATES IN ANY STATE OR TERRITORY BY THE ORDINARY COURSE OF JUDICIAL
PROCEEDINGS, HE MAY CALL INTO FEDERAL SERVICE SUCH OF THE MILITIA OF
ANY STATE, AND USE SUCH OF THE ARMED FORCES, AS HE CONSIDERS NECESSARY
TO ENFORCE THOSE LAWS OR TO SUPPRESS THE REBELLION." 

10 U.S.C. 333: 

"THE PRESIDENT, BY USING THE MILITIA OR THE ARMED FORCES, OR BOTH,
OR BY ANY OTHER MEANS, SHALL TAKE SUCH MEASURES AS HE CONSIDERS
NECESSARY TO SUPPRESS, IN A STATE, ANY INSURRECTION, DOMESTIC VIOLENCE,
UNLAWFUL COMBINATION, OR CONSPIRACY, IF IT-- 

"(1) SO HINDERS THE EXECUTION OF THE LAWS OF THAT STATE, AND OF THE
UNITED STATES WITHIN THE STATE, THAT ANY PART OR CLASS OF ITS PEOPLE IS
DEPRIVED OF A RIGHT, PRIVILEGE, IMMUNITY, OR PROTECTION NAMED IN THE
CONSTITUTION AND SECURED BY LAW, AND THE CONSTITUTED AUTHORITIES OF
THAT STATE ARE UNABLE, FAIL, OR REFUSE TO PROTECT THAT RIGHT,
PRIVILEGE, OR IMMUNITY, OR TO GIVE THAT PROTECTION; OR 

"(2) OPPOSES OR OBSTRUCTS THE EXECUTION OF THE LAWS OF THE UNITED
STATES OR IMPEDES THE COURSE OF JUSTICE UNDER THOSE LAWS. 

"IN ANY SITUATION COVERED BY CLAUSE (1), THE STATE SHALL BE
CONSIDERED TO HAVE DENIED THE EQUAL PROTECTION OF THE LAWS SECURED BY
THE CONSTITUTION." 

10 U.S.C. 334: 

"WHENEVER THE PRESIDENT CONSIDERS IT NECESSARY TO USE THE MILITIA OR
THE ARMED FORCES UNDER THIS CHAPTER, HE SHALL, BY PROCLAMATION,
IMMEDIATELY ORDER THE INSURGENTS TO DISPERSE AND RETIRE PEACEABLY TO
THEIR ABODES WITHIN A LIMITED TIME." 

TWO STATUTES, PASSED AS A RESULT OF RECONSTRUCTION ERA MILITARY
ABUSES, PROHIBIT MILITARY INTERFERENCE IN CIVILIAN ELECTIONS: 

18 U.S.C. 592: 

"WHOEVER, BEING AN OFFICER OF THE ARMY OR NAVY, OR OTHER PERSON IN
THE CIVIL, MILITARY, OR NAVAL SERVICE OF THE UNITED STATES, ORDERS,
BRINGS, KEEPS, OR HAS UNDER HIS AUTHORITY OR CONTROL ANY TROOPS OR
ARMED MEN AT ANY PLACE WHERE A GENERAL OR SPECIAL ELECTION IS HELD,
UNLESS SUCH FORCE BE NECESSARY TO REPEL ARMED ENEMIES OF THE UNITED
STATES, SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN
FIVE YEARS, OR BOTH; AND BE DISQUALIFIED FROM HOLDING ANY OFFICE OF
HONOR, PROFIT, OR TRUST UNDER THE UNITED STATES.     "THIS SECTION
SHALL NOT PREVENT ANY OFFICER OR MEMBER OF THE ARMED FORCES OF THE
UNITED STATES FROM EXERCISING THE RIGHT OF SUFFRAGE IN ANY ELECTION
DISTRICT TO WHICH HE MAY BELONG, IF OTHERWISE QUALIFIED ACCORDING TO
THE LAWS OF THE STATE IN WHICH HE OFFERS TO VOTE." 

18 U.S.C. 593: 

"WHOEVER, BEING AN OFFICER OR MEMBER OF THE ARMED FORCES OF THE
UNITED STATES, PRESCRIBES OR FIXES OR ATTEMPTS TO PRESCRIBE OR FIX,
WHETHER BY PROCLAMATION, ORDER OR OTHERWISE, THE QUALIFICATIONS OF
VOTERS AT ANY ELECTION IN ANY STATE; OR 

"WHOEVER, BEING SUCH OFFICER OR MEMBER, PREVENTS OR ATTEMPTS TO
PREVENT BY FORCE, THREAT, INTIMIDATION, ADVICE OR OTHERWISE ANY
QUALIFIED VOTER OF ANY STATE FROM FULLY EXERCISING THE RIGHT OF
SUFFRAGE AT ANY GENERAL OR SPECIAL ELECTION; OR 

"WHOEVER, BEING SUCH OFFICER OR MEMBER, ORDERS OR COMPELS OR
ATTEMPTS TO COMPEL ANY ELECTION OFFICER IN ANY STATE TO RECEIVE A VOTE
FROM A PERSON NOT LEGALLY QUALIFIED TO VOTE; OR 

"WHOEVER, BEING SUCH OFFICER OR MEMBER, IMPOSES OR ATTEMPTS TO
IMPOSE ANY REGULATIONS FOR CONDUCTING ANY GENERAL OR SPECIAL ELECTION
IN A STATE, DIFFERENT FROM THOSE PRESCRIBED BY LAW; OR 

"WHOEVER, BEING SUCH OFFICER OR MEMBER, INTERFERES IN ANY MANNER
WITH AN ELECTION OFFICER'S DISCHARGE OF HIS DUTIES-- 

"SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN
FIVE YEARS, OR BOTH; AND DISQUALIFIED FROM HOLDING ANY OFFICE OF HONOR,
PROFIT OR TRUST UNDER THE UNITED STATES. 

"THIS SECTION SHALL NOT PREVENT ANY OFFICER OR MEMBER OF THE ARMED
FORCES FROM EXERCISING THE RIGHT OF SUFFRAGE IN ANY DISTRICT TO WHICH
HE MAY BELONG, IF OTHERWISE QUALIFIED ACCORDING TO THE LAWS OF THE
STATE OF SUCH DISTRICT." 

ANOTHER RECONSTRUCTION ERA STATUTE FORBIDS THE USE OF MILITARY
TROOPS AS A POSSE COMITATUS: 

18 U.S.C. 1385: 

"WHOEVER, EXCEPT IN CASES AND UNDER CIRCUMSTANCES EXPRESSLY
AUTHORIZED BY THE CONSTITUTION OR ACT OF CONGRESS, WILLFULLY USES ANY
PART OF THE ARMY OR THE AIR FORCE AS A POSSE COMITATUS OR OTHERWISE TO
EXECUTE THE LAWS SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT
MORE THAN TWO YEARS, OR BOTH." 

FINALLY, THERE ARE TWO SPECIALIZED STATUTES.  IT WAS THOUGHT
NECESSARY TO PASS AN ACT OF CONGRESS TO GIVE THE ARMED SERVICES SOME
LIMITED POWER TO CONTROL PROSTITUTION NEAR MILITARY BASES, AND AN ACT
OF CONGRESS WAS REQUIRED TO ENABLE A MEMBER OF THE JOINT CHIEFS OF
STAFF TO TESTIFY BEFORE CONGRESS: 

18 U.S.C. 1384: 

"WITHIN SUCH REASONABLE DISTANCE OF ANY MILITARY OR NAVAL CAMP,
STATION, FORT, POST, YARD, BASE, CANTONMENT, TRAINING OR MOBILIZATION
PLACE AS THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, THE
SECRETARY OF THE AIR FORCE, OR ANY TWO OR ALL OF THEM SHALL DETERMINE
TO BE NEEDFUL TO THE EFFICIENCY, HEALTH, AND WELFARE OF THE ARMY, THE
NAVY, OR THE AIR FORCE, AND SHALL DESIGNATE AND PUBLISH IN GENERAL
ORDERS OR BULLETINS, WHOEVER ENGAGES IN PROSTITUTION OR AIDS OR ABETS
PROSTITUTION OR PROCURES OR SOLICITS FOR PURPOSES OF PROSTITUTION, OR
KEEPS OR SETS UP A HOUSE OF ILL FAME, BROTHEL, OR BAWDY HOUSE, OR
RECEIVES ANY PERSON FOR PURPOSES OF LEWDNESS, ASSIGNATION, OR
PROSTITUTION INTO ANY VEHICLE, CONVEYANCE, PLACE, STRUCTURE, OR
BUILDING, OR PERMITS ANY PERSON TO REMAIN FOR THE PURPOSE OF LEWDNESS,
ASSIGNATION, OR PROSTITUTION IN ANY VEHICLE, CONVEYANCE, PLACE,
STRUCTURE, OR BUILDING OR LEASES OR RENTS OR CONTRACTS TO LEASE OR RENT
ANY VEHICLE, CONVEYANCE, PLACE, STRUCTURE OR BUILDING, OR PART THEREOF,
KNOWING OR WITH GOOD REASON TO KNOW THAT IT IS INTENDED TO BE USED FOR
ANY OF THE PURPOSES HEREIN PROHIBITED SHALL BE FINED NOT MORE THAN
$1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH. 

"THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE AND THE FEDERAL
SECURITY ADMINISTRATOR SHALL TAKE SUCH STEPS AS THEY DEEM NECESSARY TO
SUPPRESS AND PREVENT SUCH VIOLATIONS THEREOF, AND SHALL ACCEPT THE
COOPERATION OF THE AUTHORITIES OF STATES AND THEIR COUNTIES, DISTRICTS,
AND OTHER POLITICAL SUBDIVISIONS IN CARRYING OUT THE PURPOSE OF THIS

"THIS SECTION SHALL NOT BE CONSTRUED AS CONFERRING ON THE PERSONNEL
OF THE DEPARTMENTS OF THE ARMY, NAVY, OR AIR FORCE OR THE FEDERAL
SECURITY AGENCY ANY AUTHORITY TO MAKE CRIMINAL INVESTIGATIONS,
SEARCHES, SEIZURES, OR ARRESTS OF CIVILIANS CHARGED WITH VIOLATIONS OF
THIS SECTION." 

10 U.S.C. 141(E): 

"AFTER FIRST INFORMING THE SECRETARY OF DEFENSE, A MEMBER OF THE
JOINT CHIEFS OF STAFF MAY MAKE SUCH RECOMMENDATIONS TO CONGRESS
RELATING TO THE DEPARTMENT OF DEFENSE AS HE MAY CONSIDER APPROPRIATE." 

        APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING. 

WALTER LIPPMANN GAVE THE FOLLOWING ACCOUNT OF HIS CONVERSATION WITH
CHURCHILL: 

     "THE PRESIDENT'S BRINGING GEN. WESTMORELAND HOME IN ORDER TO

  EXPLAIN THE WAR REMINDS ME OF AN INSTRUCTIVE AFTERNOON SPENT

  DURING THE SECOND WORLD WAR.  THE COUNTRY AND THE CONGRESS WERE

  DIVIDED ON THE QUESTION OF WHETHER TO STRIKE FIRST AGAINST HITLER

  OR FIRST AGAINST JAPAN.  CHURCHILL AND ROOSEVELT HAD AGREED ON

  THE POLICY OF HITLER FIRST.  BUT THERE WERE LARGE AND POWERFUL

  GROUPS IN THE COUNTRY, MANY OF THEM FORMER ISOLATIONISTS IN THE

  SENSE THAT THEY WERE ANTI-EUROPEAN, WHO WANTED TO CONCENTRATE

  AMERICAN FORCES ON WINNING THE WAR AGAINST JAPAN.  EVEN THE

  AMERICAN CHIEFS OF STAFF WERE DIVIDED ON THIS QUESTION OF HIGH

  STRATEGY. 

 "CHURCHILL HAD COME TO WASHINGTON, ACCOMPANIED BY THE BRITISH

  CHIEFS OF STAFF, TO WORK OUT WITH PRESIDENT ROOSEVELT AND THE

  ADMINISTRATION THE GENERAL PLAN OF THE GLOBAL WAR.  ONE MORNING I

  HAD A TELEPHONE CALL FROM SEN. AUSTIN, WHO WAS A STRONG BELIEVER

  IN THE CHURCHILL-ROOSEVELT LINE.  HE SAID IN EFFECT, 'I KNOW YOU

  ARE SEEING THE PRIME MINISTER THIS AFTERNOON AND I WISH YOU WOULD

  ASK HIM TO TELL HIS CHIEFS OF STAFF TO COME TO CONGRESS AND

  TESTIFY IN FAVOR OF OUR STRATEGICAL POLICY.'  QUITE INNOCENTLY I

 SAID I WOULD DO THIS, AND WHEN CHURCHILL RECEIVED ME THAT

  AFTERNOON I BEGAN BY SAYING THAT I HAD A MESSAGE FROM SEN.

  AUSTIN.  'WOULD THE PRIME MINISTER INSTRUCT HIS CHIEFS OF STAFF

  TO GO TO THE SENATE FOREIGN RELATIONS COMMITTEE . . . . '  I

  NEVER FINISHED THE MESSAGE.  FOR THE OLD LION LET OUT A ROAR

  DEMANDING TO KNOW WHY I WAS SO IGNORANT OF THE BRITISH WAY OF

  DOING THINGS THAT I COULD DARE TO SUGGEST THAT A BRITISH GENERAL

  SHOULD ADDRESS A PARLIAMENTARY BODY. 

     "AS I REMEMBER IT, WHAT HE SAID WAS, 'I AM THE MINISTER OF

  DEFENSE AND I, NOT THE GENERALS, WILL STATE THE POLICY OF HIS

  MAJESTY'S GOVERNMENT.' 

    "NO ONE WHO EVER AROUSED THE WRATH OF CHURCHILL IS LIKELY TO

  FORGET IT.  I CERTAINLY HAVE NOT FORGOTTEN IT.  I LEARNED AN

  INDELIBLE LESSON ABOUT ONE OF THE ELEMENTARY PRINCIPLES OF

  DEMOCRATIC GOVERNMENT.  AND THEREFORE, I TAKE A VERY SOUR VIEW OF

  A FIELD COMMANDER BEING BROUGHT HOME BY THE PRESIDENT TO EDUCATE

  THE CONGRESS AND THE AMERICAN PEOPLE." 

OUR MILITARY ADDED POLITICAL DEPARTMENTS TO THEIR STAFFS.  A DEPUTY
CHIEF OF NAVAL OPERATIONS, MILITARY POLICY DIVISION, WAS FIRST
ESTABLISHED IN THE DEPARTMENT OF THE NAVY BY PRESIDENT TRUMAN IN 1945. 
IN THE OFFICE OF SECRETARY OF DEFENSE THAT WAS DONE BY PRESIDENT TRUMAN
IN 1947, THE APPOINTEE EVENTUALLY BECOMING ASSISTANT SECRETARY FOR
INTERNATIONAL SECURITY AFFAIRS.  A LIKE OFFICE WAS ESTABLISHED IN 1961
IN THE DEPARTMENT OF THE ARMY BY PRESIDENT KENNEDY AND ANOTHER FOR THE
AIR FORCE IN 1957 BY PRESIDENT EISENHOWER.  THUS, WHEN THE PENTAGON
ENTERED A WASHINGTON, D.C., CONFERENCE, ITS FOUR "SECRETARIES OF STATE"
FACED THE REAL SECRETARY OF STATE AND MORE FREQUENTLY THAN NOT TALKED
OR STARED HIM DOWN.  THE PENTAGON'S "SECRETARIES OF STATE" USUALLY
SPOKE IN UNISON; THEY WERE CLEAR AND DECISIVE WITH NO IFS, ANDS, OR
BUTS, AND IN POLICY CONFERENCES USUALLY CARRIED THE DAY. 

BY 1968 THE PENTAGON WAS SPENDING $34 MILLION A YEAR ON NON-MILITARY
SOCIAL AND BEHAVIORAL SCIENCE RESEARCH BOTH AT HOME AND ABROAD.  ONE
RELATED TO "WITCHCRAFT, SORCERY, MAGIC, AND OTHER PSYCHOLOGICAL
PHENOMENA" IN THE CONGO.  ANOTHER CONCERNED THE "POLITICAL INFLUENCE OF
UNIVERSITY STUDENTS IN LATIN AMERICA."  OTHER PROJECTS RELATED TO THE
SKILL OF KOREAN WOMEN AS DIVERS, SNAKE VENOMS IN THE MIDDLE EAST, AND
THE LIKE.  REASEARCH PROJECTS WERE GOING ON FOR THE PENTAGON IN 40
COUNTRIES IN SOCIOLOGY, PSYCHOLOGY AND BEHAVIORAL SCIENCES. 

THE PENTAGON BECAME SO POWERFUL THAT NO PRESIDENT WOULD DARE CRACK
DOWN ON IT AND TRY TO REGULATE IT. 

THE MILITARY APPROACH TO WORLD AFFAIRS CONDITIONED OUR THINKING AND
OUR PLANNING AFTER WORLD WAR II. 

WE DID NOT REALIZE THAT TO MILLIONS OF THESE PEOPLE THERE WAS NO
DIFFERENCE BETWEEN A COMMUNIST DICTATORSHIP AND THE DICTATORSHIP UNDER
WHICH THEY PRESENTLY LIVED.  WE DID NOT REALIZE THAT IN SOME REGIONS OF
ASIA IT WAS THE COMMUNIST PARTY THAT IDENTIFIED ITSELF WITH THE SO
CALLED REFORM PROGRAMS, THE OTHER PARTIES BEING MERE INSTRUMENTS FOR
KEEPING A RULING CLASS IN POWER.  WE DID NOT REALIZE THAT, IN THE EYES
OF MILLIONS OF ILLITERATES, THE CHOICE BETWEEN DEMOCRACY AND COMMUNISM
WAS NOT THE CRITICAL CHOICE IT WOULD BE FOR US. 

WE TALKED ABOUT "SAVING DEMOCRACY."  BUT THE REAL QUESTION IN ASIA,
THE MIDDLE EAST, AFRICA, AND LATIN AMERICA WAS WHETHER DEMOCRACY WOULD
EVER BE BORN. 

WE FORGOT THAT DEMOCRACY IN MOST LANDS IS AN EMPTY WORD.  WE ASKED
ILLITERATE PEOPLE LIVING AT THE SUBSISTENCE LEVEL TO FURNISH STAGING
GROUNDS FOR A MILITARY OPERATION WHOSE OUTCOME, IN THEIR EYES, HAD NO
RELATION TO THEIR OWN WELFARE.  THOSE WHO REJECTED OUR OVERTURES MUST
BE COMMUNISTS, WE SAID.  THOSE WHO DID NOT APPROVE OUR MILITARY PLANS
MUST BE SECRETLY ALIGNING WITH RUSSIA, WE THOUGHT. 

SO IT WAS THAT IN UNDERDEVELOPED AREAS WE BECAME IDENTIFIED NOT WITH
IDEAS OF FREEDOM, BUT WITH BOMBS, PLANES, AND TANKS.  WE THOUGHT LESS
AND LESS IN TERMS OF DEFEATING COMMUNISM WITH PROGRAMS OF POLITICAL
ACTION, MORE AND MORE IN TERMS OF DEFEATING COMMUNISM WITH MILITARY
MIGHT.  OUR FOREIGN AID MOUNTED; BUT NEARLY 70% OF IT WAS MILITARY
AID. 

OUR FEARS MOUNTED AS THE COLD WAR INCREASED IN INTENSITY.  THESE
FEARS HAD MANY MANIFESTATIONS.  THE COMMUNIST THREAT INSIDE THE COUNTRY
WAS MAGNIFIED AND EXALTED FAR BEYOND ITS REALITIES.  IRRESPONSIBLE TALK
FANNED THE FLAMES.  ACCUSATIONS WERE LOOSELY MADE.  CHARACTER
ASSASSINATIONS WERE COMMON.  SUSPICION TOOK THE PLACE OF GOODWILL.  WE
NEEDED TO DEBATE WITH IMPUNITY AND EXPLORE TO THE EDGES OF PROBLEMS. 
WE NEEDED TO SEARCH TO THE HORIZON FOR ANSWERS TO PERPLEXING PROBLEMS. 
WE NEEDED CONFIDENCE IN EACH OTHER.  BUT IN THE 40'S, 50'S, AND 60'S
SUSPICIONS GREW.  INNOCENT ACTS BECAME TELLTALE MARKS OF DISLOYALTY. 
THE COINCIDENCE THAT AN IDEA PARALLELED SOVIET RUSSIA'S POLICY FOR A
MOMENT OF TIME SETTLED AN AURA OF DOUBT AROUND A PERSON.  THE
INTERVENTION OF THE GENERAL, WASHINGTON POST, APR. 27, 1967, SEC. A, P.
21, COL. 1. 

  APPENDIX III TO OPINION OF DOUGLAS, J., DISSENTING 

ALEXANDER I SOLZHENTISYN, THE NOTED SOVIET AUTHOR, MADE THE
FOLLOWING STATEMENT MARCH 30, 1972, CONCERNING SURVEILLANCE OF HIM AND
HIS FAMILY (REPORTED IN THE WASHINGTON POST, APR. 3, 1972): 

"A KIND OF FORBIDDEN, CONTAMINATED ZONE HAS BEEN CREATED AROUND MY
FAMILY, AND TO THIS DAY, THERE ARE PEOPLE IN RYAZAN (WHERE SOLZHENITSYN
USED TO LIVE) WHO WERE DISMISSED FROM THEIR JOBS FOR HAVING VISITED MY
HOUSE A FEW YEARS AGO.  A CORRESPONDING MEMBER OF THE ACADEMY OF
SCIENCES, T. TIMOFEYEV, WHO IS DIRECTOR OF A MOSCOW INSTITUTE, BECAME
SO SCARED WHEN HE FOUND OUT THAT A MATHEMATICIAN WORKING UNDER HIM WAS
MY WIFE THAT HE DISMISSED HER WITH UNSEEMLY HASTE, ALTHOUGH THIS WAS
JUST AFTER SHE HAD GIVEN BIRTH AND CONTRARY TO ALL LAWS . . . 

"IT HAPPENS THAT AN INFORMANT (FOR HIS NEW BOOK ON THE HISTORY OF
PREREVOLUTIONARY RUSSIA) MAY MEET WITH ME.  WE WORK AN HOUR OR TWO AND
AS SOON AS HE LEAVES MY HOUSE, HE WILL BE CLOSELY FOLLOWED, AS IF HE
WERE A STATE CRIMINAL, AND THEY WILL INVESTIGATE HIS BACKGROUND, AND
THEN GO ON TO FIND OUT WHO THIS MAN MEETS, AND THEN, IN TURN, WHO THAT
(NEXT) PERSON IS MEETING. 

"OF COURSE THEY CANNOT DO THIS WITH EVERYONE.  THE STATE SECURITY
PEOPLE HAVE THEIR SCHEDULE, AND THEIR OWN PROFOUND REASONING.  ON SOME
DAYS, THERE IS NO SURVEILLANCE AT ALL, OR ONLY SUPERFICIAL
SURVEILLANCE.  ON OTHER DAYS, THEY HANG AROUND, FOR EXAMPLE WHEN
HEINRICH BOLL CAME TO SEE ME (HE IS A GERMAN WRITER WHO RECENTLY
VISITED MOSCOW).  THEY WILL PUT A CAR IN FRONT OF EACH OF THE TWO
APPROACHES (TO THE COURTYARD OF THE APARTMENT HOUSE WHERE HE STAYS IN
MOSCOW) WITH THREE MEN IN EACH CAR-- AND THEY DON'T WORK ONLY ONE
SHIFT.  THEN OFF THEY GO AFTER MY VISITORS, OR THEY TRAIL PEOPLE WHO
LEAVE ON FOOT. 

"AND IF YOU CONSIDER THAT THEY LISTEN AROUND THE CLOCK TO TELEPHONE
CONVERSATIONS AND CONVERSATIONS IN MY HOME, THEY ANALYZE RECORDING
TAPES AND ALL CORRESPONDENCE, AND THEN COLLECT AND COMPARE ALL THESE
DATA IN SOME VAST PREMISES-- AND THESE PEOPLE ARE NOT UNDERLINGS-- YOU
CANNOT BUT BE AMAZED THAT SO MANY IDLERS IN THE PRIME OF LIFE AND
STRENGTH, WHO COULD BE BETTER OCCUPIED WITH PRODUCTIVE WORK FOR THE
BENEFIT OF THE FATHERLAND, ARE BUSY WITH MY FRIENDS AND ME, AND KEEP
INVENTING ENEMIES." 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE COURT OF APPEALS HELD THAT A JUSTICIABLE CONTROVERSY EXISTS AND
THAT RESPONDENTS HAVE STATED A CLAIM UPON WHICH RELIEF COULD BE
GRANTED.  144 U.S.APP.D.C. 72, 83, 444 F.2D 947, 958 (1971).  I AGREE
WITH JUDGE WILKEY, WRITING FOR THE COURT OF APPEALS, THAT THIS
CONCLUSION IS COMPELLED FOR THE FOLLOWING REASONS STATED BY HIM: 
"(RESPONDENTS) CONTEND THAT THE PRESENT EXISTENCE OF THIS SYSTEM OF
GATHERING AND DISTRIBUTING INFORMATION, ALLEGEDLY FAR BEYOND THE
MISSION REQUIREMENTS OF THE ARMY, CONSTITUTES AN IMPERMISSIBLE BURDEN
ON (RESPONDENTS) AND OTHER PERSONS SIMILARLY SITUATED WHICH EXERCISES A
PRESENT INHIBITING EFFECT ON THEIR FULL EXPRESSION AND UTILIZATION OF
THEIR FIRST AMENDMENT RIGHTS OF FREE SPEECH, ETC.  THE BALEFUL EFFECT,
IF THERE IS ONE, IS THUS A PRESENT INHIBITION OF LAWFUL BEHAVIOR AND OF
FIRST AMENDMENT RIGHTS. 

     "UNDER THIS VIEW OF (RESPONDENTS') ALLEGATIONS, UNDER

  JUSTICIABILITY STANDARDS IT IS THE OPERATION OF THE SYSTEM ITSELF

  WHICH IS THE BREACH OF THE ARMY'S DUTY TOWARD (RESPONDENTS) AND

  OTHER CIVILIANS.  THE CASE IS THEREFORE RIPE FOR ADJUDICATION. 

  BECAUSE THE EVIL ALLEGED IN THE ARMY INTELLIGENCE SYSTEM IS THAT

  OF OVERBREADTH, I.E., THE COLLECTION OF INFORMATION NOT

  REASONABLY RELEVANT TO THE ARMY'S MISSION TO SUPPRESS CIVIL

  DISORDER, AND BECAUSE THERE IS NO INDICATION THAT A BETTER

  OPPORTUNITY WILL LATER ARISE TO TEST THE CONSTITUTIONALITY OF THE

  ARMY'S ACTION, THE ISSUE CAN BE CONSIDERED JUSTICIABLE AT THIS

  TIME."  ID., AT 79-81, 444 F.2D, AT 954-956 (EMPHASIS IN

  ORIGINAL) (FOOTNOTES OMITTED). 

     "TO THE EXTENT THAT THE ARMY'S ARGUMENT AGAINST JUSTICIABILITY

HERE INCLUDES THE CLAIM THAT (RESPONDENTS LACK STANDING TO BRING

  THIS ACTION, WE CANNOT AGREE.  IF THE ARMY'S SYSTEM DOES INDEED

  DEROGATE FIRST AMENDMENT VALUES, THE (RESPONDENTS) ARE PERSONS

  WHO ARE SUFFICIENTLY AFFECTED TO PERMIT THEIR COMPLAINT TO BE

  HEARD.  THE RECORD SHOWS THAT MOST IF NOT ALL OF THE

  (RESPONDENTS) AND/OR THE ORGANIZATIONS OF WHICH THEY ARE MEMBERS

  HAVE BEEN THE SUBJECT OF ARMY SURVEILLANCE REPORTS AND THEIR

  NAMES HAVE APPEARED IN THE ARMY'S RECORDS.  SINCE THIS IS

  PRECISELY THE INJURY OF WHICH (RESPONDENTS) COMPLAIN, THEY HAVE

  STANDING TO SEEK REDRESS FOR THAT ALLEGED INJURY IN COURT AND

  WILL PROVIDE THE NECESSARY ADVERSARY INTEREST THAT IS REQUIRED BY

  THE STANDING DOCTRINE, ON THE ISSUE OF WHETHER THE ACTIONS

  COMPLAINED OF DO IN FACT INHIBIT THE EXERCISE OF FIRST AMENDMENT

  RIGHTS.  NOR SHOULD THE FACT THAT THESE PARTICULAR PERSONS ARE

  SUFFICIENTLY UNINHIBITED TO BRING THIS SUIT BE ANY GROUND FOR

  OBJECTING TO THEIR STANDING."  ID., AT 79 N. 17, 444 F.2D, AT 954

  N. 17. 

RESPONDENTS MAY OR MAY NOT BE ABLE TO PROVE THE CASE THEY ALLEGE. 
BUT I AGREE WITHTHE COURT OF APPEALS THAT THEY ARE ENTITLED TO TRY.  I
WOULD THEREFORE AFFIRM THE REMAND TO THE DISTRICT COURT FOR A TRIAL AND
DETERMINATION OF THE ISSUES SPECIFIED BY THE COURT OF APPEALS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR PETITIONERS.  WITH
HIM ON THE BRIEFS WERE ASSISTANT ATTORNEY GENERAL MARDIAN AND ROBERT L.
KEUCH. 

FRANK ASKIN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF
WAS MELVIN L. WULF. 

SAM J. ERVIN, JR., ARGUED THE CAUSE FOR THE UNITARIAN UNIVERSALIST
ASSN. ET AL. AS AMICI CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF
WAS LAWRENCE M. BASKIR. 

BURKE MARSHALL AND ARTHUR R. MILLER FILED A BRIEF FOR A GROUP OF
FORMER ARMY INTELLIGENCE AGENTS AS AMICI CURIAE URGING AFFIRMANCE. 
..END :








GELBARD V. UNITED STATES, 408 U.S. 41 


       GELBARD ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 NINTH CIRCUIT

        NO. 71-110.  ARGUED MARCH 27, 1972-- DECIDED JUNE 26, 1972

           /1/ 


WHERE A GRAND JURY WITNESS IS ADJUDICATED IN CIVIL CONTEMPT UNDER 28
U.S.C. 1826(A) FOR REFUSING "WITHOUT JUST CAUSE SHOWN TO COMPLY WITH AN
ORDER OF THE COURT TO TESTIFY," THE WITNESS MAY INVOKE AS A DEFENSE 18
U.S.C. 2515, WHICH DIRECTS THAT "(WHENEVER ANY WIRE OR ORAL
COMMUNICATION HAS BEEN INTERCEPTED, NO PART OF THE CONTENTS OF SUCH
COMMUNICATION AND NO EVIDENCE DERIVED THEREFROM MAY BE RECEIVED IN
EVIDENCE IN ANY . . . PROCEEDING IN OR BEFORE ANY . . . GRAND JURY . .
. ," SINCE A SHOWING THAT THE INTERROGATION WOULD BE BASED UPON THE
ILLEGAL INTERCEPTION OF THE WITNESS' COMMUNICATIONS WOULD CONSTITUTE
THE "JUST CAUSE" THAT PRECLUDES A FINDING OF CONTEMPT.  PP. 46-61. 

NO. 71-110, 443 F.2D 837, REVERSED AND REMANDED; NO. 71-263, 450
F.2D 199 AND 450 F.2D 231, AFFIRMED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, AND MARSHALL, JJ., JOINED.  DOUGLAS, J., POST, P. 62,
AND WHITE, J., POST, P. 69, FILED CONCURRING OPINIONS.  REHNQUIST, J.,
FILED A DISSENTING OPINION, IN WHICH BURGER, C.J., AND BLACKMUN AND
POWELL, JJ., JOINED, POST, P. 71. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT CHALLENGES TO THE VALIDITY OF ADJUDICATIONS OF
CIVIL CONTEMPT, PURSUANT TO 28 U.S.C. 1826(A), /1A/  OF WITNESSES
BEFORE FEDERAL GRAND JURIES WHO REFUSED TO COMPLY WITH COURT ORDERS TO
TESTIFY.  THE REFUSALS WERE DEFENDED UPON THE GROUND THAT INTERROGATION
WAS TO BE BASED UPON INFORMATION OBTAINED FROM THE WITNESSES'
COMMUNICATIONS, ALLEGEDLY INTERCEPTED BY FEDERAL AGENTS BY MEANS OF
ILLEGAL WIRETAPPING AND ELECTRONIC SURVEILLANCE.  A PROVISION OF TITLE
III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, 82 STAT.
211, AS AMENDED, 18 U.S.C. 2510-2520, DIRECTS THAT "(WHENEVER ANY WIRE
OR ORAL COMMUNICATION HAS BEEN INTERCEPTED, NO PART OF THE CONTENTS OF
SUCH COMMUNICATION AND NO EVIDENCE DERIVED THEREFROM MAY BE RECEIVED IN
EVIDENCE IN ANY . . . PROCEEDING IN OR BEFORE ANY . . . GRAND JURY . .
. IF THE DISCLOSURE OF THAT INFORMATION WOULD BE IN VIOLATION OF THIS
CHAPTER."  18 U.S.C. 2515.  /2/  THE QUESTION PRESENTED IS WHETHER
GRAND JURY WITNESSES, IN PROCEEDINGS UNDER 28 U.S.C. 1826(A), ARE
ENTITLED TO INVOKE THIS PROHIBITION OF SEC. 2515 AS A DEFENSE TO
CONTEMPT CHARGES BROUGHT AGAINST THEM FOR REFUSING TO TESTIFY.  IN NO.
71-110, THE COURT OF APPEALS FOR THE NINTH CIRCUIT HELD THAT THEY ARE
NOT ENTITLED TO DO SO.  UNITED STATES V. GELBARD, 443 F.2D 837 (1971). 
IN NO. 71-263, THE COURT OF APPEALS FOR THE THIRD CIRCUIT, EN BANC,
REACHED THE CONTRARY CONCLUSION.  IN RE GRAND JURY PROCEEDINGS,
HARRISBURG, PENNSYLVANIA (EGAN), 450 F.2D 199 (1971); IN RE GRANT JURY
PROCEEDINGS, HARRISBURG, PENNSYLVANIA (WALSH), 450 F.2D 231 (1971).  WE
GRANTED CERTIORARI.  404 U.S. 990 (1971).  /3/  WE DISAGREE WITH THE
COURT OF APPEALS FOR THE NINTH CIRCUIT AND AGREE WITH THE COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

NO. 71-110.  A FEDERAL DISTRICT JUDGE APPROVED WIRETAPS BY FEDERAL
AGENTS OF THE TELEPHONES OF PERRY PAUL, AN ALLEGED BOOKMAKER, AND
JEROME ZAROWITZ, A FORMER EXECUTIVE OF A LAS VEGAS CASINO.  IN THE
COURSE OF THOSE TAPS, THE AGENTS OVERHEARD CONVERSATIONS BETWEEN PAUL
AND PETITIONER GELBARD AND BETWEEN ZAROWITZ AND PETITIONER PARNAS. 
PETITIONERS WERE SUBSEQUENTLY CALLED BEFORE A FEDERAL GRAND JURY
CONVENED IN LOS ANGELES TO INVESTIGATE POSSIBLE VIOLATIONS OF FEDERAL
GAMBLING LAWS.  THE GOVERNMENT ASSERTED THAT PETITIONERS WOULD BE
QUESTIONED ABOUT THIRD PARTIES AND THAT THE QUESTIONS WOULD BE BASED
UPON PETITIONERS' INTERCEPTED TELEPHONE CONVERSATIONS.  PETITIONERS
APPEARED BEFORE THE GRAND JURY, BUT DECLINED TO ANSWER ANY QUESTIONS
BASED UPON THEIR INTERCEPTED CONVERSATIONS UNTIL THEY WERE AFFORDED AN
OPPORTUNITY TO CHALLENGE THE LEGALITY OF THE INTERCEPTIONS.  FOLLOWING
A HEARING, THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA FOUND PETITIONERS IN CONTEMPT AND, PURSUANT TO 28 U.S.C.
1826(A), COMMITTED THEM TO CUSTODY FOR THE LIFE OF THE GRAND JURY OR
UNTIL THEY ANSWERED THE QUESTIONS. 

NO. 71-263.  RESPONDENTS EGAN AND WALSH WERE CALLED BEFORE A FEDERAL
GRAND JURY CONVENED IN HARRISBURG, PENNSYLVANIA, TO INVESTIGATE, AMONG
OTHER POSSIBLE CRIMES, AN ALLEGED PLOT TO KIDNAP A GOVERNMENT
OFFICIAL.  PURSUANT TO 18 U.S.C. 2514, BOTH RESPONDENTS WERE GRANTED
TRANSACTIONAL IMMUNITY IN RETURN FOR THEIR TESTIMONY.  RESPONDENTS
APPEARED BEFORE THE GRANT JURY, BUT REFUSED TO ANSWER QUESTIONS ON THE
GROUND, AMONG OTHERS, THAT THE QUESTIONS WERE BASED UPON INFORMATION
OVERHEARD FROM RESPONDENTS BY MEANS OF THE GOVERNMENT'S ILLEGAL
WIRETAPPING AND ELECTRONIC SURVEILLANCE.  THE GOVERNMENT DID NOT REPLY
TO RESPONDENTS'  ALLEGATIONS.  /4/  FOLLOWING A HEARING, THE UNITED
STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA FOUND
RESPONDENTS IN CONTEMPT, AND THEY WERE ALSO COMMITTED TO CUSTODY
PURSUANT TO 28 U.S.C. 1826(A). 

TO THE CASE OF A GRAND JURY WITNESS WHO "REFUSES WITHOUT JUST CAUSE
SHOWN TO COMPLY WITH AN ORDER OF THE COURT TO TESTIFY."  OUR INQUIRY,
THEN, IS WHETHER A SHOWING THAT INTERROGATION WOULD BE BASED UPON THE
ILLEGAL INTERCEPTION OF THE WITNESS' COMMUNICATIONS CONSTITUTES A
SHOWING OF "JUST CAUSE" THAT PRECLUDES A FINDING OF CONTEMPT.  THE
ANSWER TURNS ON THE CONSTRUCTION OF TITLE III OF THE OMNIBUS CRIME
CONTROL ACT.  /5/

        I 

IN TITLE III, CONGRESS ENACTED A COMPREHENSIVE SCHEME FOR THE
REGULATION OF WIRETAPPING AND ELECTRONIC SURVEILLANCE.  SEE UNITED
STATES V. UNITED STATES DISTRICT COURT, 407 U.S. 297, 301-306.  TITLE
III AUTHORIZES THE INTERCEPTION OF PRIVATE WIRE AND ORAL
COMMUNICATIONS, BUT ONLY WHEN LAW ENFORCEMENT OFFICIALS ARE
INVESTIGATING SPECIFIED SERIOUS CRIMES AND RECEIVE PRIOR JUDICIAL
APPROVAL, AN APPROVAL THAT MAY NOT BE GIVEN EXCEPT UPON COMPLIANCE WITH
STRINGENT CONDITIONS.  18 U.S.C. 2516, 2518(1)-(8).  IF A WIRE OR ORAL
COMMUNICATION IS INTERCEPTED IN ACCORDANCE WITH THE PROVISIONS OF TITLE
III, THE CONTENTS OF THE COMMUNICATION MAY BE DISCLOSED AND USED UNDER
CERTAIN CIRCUMSTANCES.  18 U.S.C. 2517.  EXCEPT AS EXPRESSLY AUTHORIZED
IN TITLE III, HOWEVER, ALL INTERCEPTIONS OF WIRE AND ORAL
COMMUNICATIONS ARE FLATLY PROHIBITED.  UNAUTHORIZED INTERCEPTIONS AND
THE DISCLOSURE OR USE OF INFORMATION OBTAINED THROUGH UNAUTHORIZED
INTERCEPTIONS ARE CRIMES, 18 U.S.C. 2511(1), AND THE VICTIM OF SUCH
INTERCEPTION, DISCLOSURE, OR USE IS ENTITLED TO RECOVER CIVIL DAMAGES,
18 U.S.C. 2520.  TITLE III ALSO BARS THE USE AS EVIDENCE BEFORE
OFFICIAL BODIES OF THE CONTENTS AND FRUITS OF ILLEGAL INTERCEPTIONS, 18
U.S.C. 2515, AND PROVIDES PROCEDURES FOR MOVING TO SUPPRESS SUCH
EVIDENCE IN VARIOUS PROCEEDINGS, 18 U.S.C. 2518(9)-(10). 

THE WITNESSES IN THESE CASES WERE HELD IN CONTEMPT FOR DISOBEYING
COURT ORDERS BY REFUSING TO PRODUCE EVIDENCE-- THEIR TESTIMONY-- BEFORE
GRAND JURIES.  CONSEQUENTLY, THEIR PRIMARY CONTENTION IS THAT SEC.
2515, THE EVIDENTIARY PROHIBITION OF TITLE III, AFFORDED THEM A DEFENSE
TO THE CONTEMPT CHARGES.  IN ADDRESSING THAT CONTENTION, WE MUST
ASSUME, IN THE PRESENT POSTURE OF THESE CASES, THAT THE GOVERNMENT HAS
INTERCEPTED COMMUNICATIONS OF THE WITNESSES AND THAT THE TESTIMONY THE
GOVERNMENT SEEKS FROM THEM WOULD BE, WITHIN THE MEANING OF SEC. 2515,
"EVIDENCE DERIVED" FROM THE INTERCEPTED COMMUNICATIONS.  WE MUST ALSO
ASSUME THAT THE COMMUNICATIONS WERE NOT INTERCEPTED IN ACCORDANCE WITH
THE SPECIFIED PROCEDURES AND THUS THAT THE WITNESSES'  POTENTIAL
TESTIMONY WOULD BE "DISCLOSURE" IN VIOLATION OF TITLE III.  SEE 18
U.S.C. 2511(1), 2517(3).  IN SHORT, WE PROCEED ON THE PREMISE THAT SEC.
2515 PROHIBITS THE PRESENTATION TO GRAND JURIES OF THE COMPELLED
TESTIMONY OF THESE WITNESSES. 

THE NARROW QUESTION, THEN, IS WHETHER UNDER THESE CIRCUMSTANCES THE
WITNESSES MAY INVOKE THE PROHIBITION OF SEC. 2515 AS A DEFENSE TO
CONTEMPT CHARGES BROUGHT ON THE BASIS OF THEIR REFUSAL TO OBEY COURT
ORDERS TO TESTIFY.  WE THINK THEY MAY. 

THE UNEQUIVOCAL LANGUAGE OF SEC. 2515 EXPRESSES THE FUNDAMENTAL
POLICY ADOPTED BY CONGRESS ON THE SUBJECT OF WIRETAPPING AND ELECTRONIC
SURVEILLANCE.  AS THE CONGRESSIONAL FINDINGS FOR TITLE III MAKE PLAIN,
THAT POLICY IS STRICTLY TO LIMIT THE EMPLOYMENT OF THOSE TECHNIQUES OF
ACQUIRING INFORMATION: 

     "TO SAFEGUARD THE PRIVACY OF INNOCENT PERSONS, THE
INTERCEPTION

  OF WIRE OR ORAL COMMUNICATIONS WHERE NONE OF THE PARTIES TO THE

  COMMUNICATION HAS CONSENTED TO THE INTERCEPTION SHOULD BE ALLOWED

ONLY WHEN AUTHORIZED BY A COURT OF COMPETENT JURISDICTION AND

  SHOULD REMAIN UNDER THE CONTROL AND SUPERVISION OF THE

  AUTHORIZING COURT.  INTERCEPTION OF WIRE AND ORAL COMMUNICATIONS

  SHOULD FURTHER BE LIMITED TO CERTAIN MAJOR TYPES OF OFFENSES AND

  SPECIFIC CATEGORIES OF CRIME WITH ASSURANCES THAT THE

  INTERCEPTION IS JUSTIFIED AND THAT THE INFORMATION OBTAINED

  THEREBY WILL NOT BE MISUSED."  SEC. 801(D), 82 STAT. 211.  /6/ 

THE SENATE COMMITTEE REPORT THAT ACCOMPANIED TITLE III UNDERSCORES
THE CONGRESSIONAL POLICY: 

     "TITLE III HAS AS ITS DUAL PURPOSE (1) PROTECTING THE PRIVACY

  OF WIRE AND ORAL COMMUNICATIONS, AND (2) DELINEATING ON A UNIFORM

  BASIS THE CIRCUMSTANCES AND CONDITIONS UNDER WHICH THE

  INTERCEPTION OF WIRE AND ORAL COMMUNICATIONS MAY BE AUTHORIZED. 

  TO ASSURE THE PRIVACY OF ORAL AND WIRE COMMUNICATIONS, TITLE III

  PROHIBITS ALL WIRETAPPING AND ELECTRONIC SURVEILLANCE BY PERSONS

  OTHER THAN DULY AUTHORIZED LAW ENFORCEMENT OFFICERS ENGAGED IN

  THE INVESTIGATION OR PREVENTION OF SPECIFIED TYPES OF SERIOUS

CRIMES, AND ONLY AFTER AUTHORIZATION OF A COURT ORDER OBTAINED

  AFTER A SHOWING AND FINDING OF PROBABLE CAUSE."  S. REP. NO.

  1097, 90TH CONG., 2D SESS., 66 (1968). 

HENCE, ALTHOUGH TITLE III AUTHORIZES INVASIONS OF INDIVIDUAL PRIVACY
UNDER CERTAIN CIRCUMSTANCES, THE PROTECTION OF PRIVACY WAS AN
OVERRIDING CONGRESSIONAL CONCERN.  /7/  INDEED, THE CONGRESSIONAL
FINDINGS ARTICULATE CLEARLY THE INTENT TO UTILIZE THE EVIDENTIARY
PROHIBITION OF SEC. 2515 TO ENFORCE THE LIMITATIONS IMPOSED BY TITLE
III UPON WIRETAPPING AND ELECTRONIC SURVEILLANCE: 

     "IN ORDER TO PROTECT EFFECTIVELY THE PRIVACY OF WIRE AND ORAL

  COMMUNICATIONS, TO PROTECT THE INTEGRITY OF COURT AND

  ADMINISTRATIVE PROCEEDINGS, AND TO PREVENT THE OBSTRUCTION OF

  INTERSTATE COMMERCE, IT IS NECESSARY FOR CONGRESS TO DEFINE ON A

  UNIFORM BASIS THE CIRCUMSTANCES AND CONDITIONS UNDER WHICH THE

  INTERCEPTION OF WIRE AND ORAL COMMUNICATIONS MAY BE AUTHORIZED,

  TO PROHIBIT ANY UNAUTHORIZED INTERCEPTION OF SUCH COMMUNICATIONS,

  AND THE USE OF THE CONTENTS THEREOF IN EVIDENCE IN COURTS AND

  ADMINISTRATIVE PROCEEDINGS."  SEC. 801(B), 82 STAT. 211.  /8/

AND THE SENATE REPORT, LIKE THE CONGRESSIONAL FINDINGS, SPECIFICALLY
ADDRESSED ITSELF TO THE ENFORCEMENT, BY MEANS OF SEC. 2515, OF THE
LIMITATIONS UPON INVASIONS OF INDIVIDUAL PRIVACY: 

  "VIRTUALLY ALL CONCEDE THAT THE USE OF WIRETAPPING OR

ELECTRONIC SURVEILLANCE TECHNIQUES BY PRIVATE UNAUTHORIZED HANDS

  HAS LITTLE JUSTIFICATION WHERE COMMUNICATIONS ARE INTERCEPTED

  WITHOUT THE CONSENT OF ONE OF THE PARTICIPANTS.  NO ONE QUARRELS

  WITH THE PROPOSITION THAT THE UNAUTHORIZED USE OF THESE

  TECHNIQUES BY LAW ENFORCEMENT AGENTS SHOULD BE PROHIBITED.  . . .

  ONLY BY STRIKING AT ALL ASPECTS OF THE PROBLEM CAN PRIVACY BE

  ADEQUATELY PROTECTED.  THE PROHIBITION, TOO, MUST BE ENFORCED

  WITH ALL APPROPRIATE SANCTIONS.  CRIMINAL PENALTIES HAVE THEIR

  PART TO PLAY.  BUT OTHER REMEDIES MUST BE AFFORDED THE VICTIM OF

AN UNLAWFUL INVASION OF PRIVACY.  PROVISION MUST BE MADE FOR

  CIVIL RECOURSE FOR DAMAGES.  THE PERPETRATOR MUST BE DENIED THE

  FRUITS OF HIS UNLAWFUL ACTIONS IN CIVIL AND CRIMINAL

  PROCEEDINGS.  EACH OF THESE OBJECTIVES IS SOUGHT BY THE PROPOSED

  LEGISLATION."  S. REP. NO. 1097, SUPRA, AT 69. 

IMPORTANCE AS A PROTECTION FOR "THE VICTIM OF AN UNLAWFUL INVASION OF
PRIVACY" COULD NOT BE MORE CLEAR.  /9/  THE PURPOSES OF SEC. 2515 AND
TITLE III AS A WHOLE WOULD BE SUBVERTED WERE THE PLAIN COMMAND OF SEC.
2515 IGNORED WHEN THE VICTIM OF AN ILLEGAL INTERCEPTION IS CALLED AS A
WITNESS BEFORE A GRAND JURY AND ASKED QUESTIONS BASED UPON THAT
INTERCEPTION.  MOREOVER, SEC. 2515 SERVES NOT ONLY TO PROTECT THE
PRIVACY OF COMMUNICATIONS, /10/  BUT ALSO TO ENSURE THAT THE COURTS DO
NOT BECOME PARTNERS TO ILLEGAL CONDUCT: THE EVIDENTIARY PROHIBITION WAS
ENACTED ALSO "TO PROTECT THE INTEGRITY OF COURT AND ADMINISTRATIVE
PROCEEDINGS."  CONSEQUENTLY, TO ORDER A GRAND JURY WITNESS, ON PAIN OF
IMPRISONMENT, TO DISCLOSE EVIDENCE THAT SEC. 2515 BARS IN UNEQUIVOCAL
TERMS IS BOTH TO THWART THE CONGRESSIONAL OBJECTIVE OF PROTECTING
INDIVIDUAL PRIVACY BY EXCLUDING SUCH EVIDENCE AND TO ENTANGLE THE
COURTS IN THE ILLEGAL ACTS OF GOVERNMENT AGENTS. 

IN SUM, CONGRESS SIMPLY CANNOT BE UNDERSTOOD TO HAVE SANCTIONED
ORDERS TO PRODUCE EVIDENCE EXCLUDED FROM GRAND JURY PROCEEDINGS BY SEC.
2515.  CONTRARY TO THE GOVERNMENT'S ASSERTION THAT THE INVASION OF
PRIVACY IS OVER AND DONE WITH, TO COMPEL THE TESTIMONY OF THESE
WITNESSES COMPOUNDS THE STATUTORILY PROSCRIBED INVASION OF THEIR
PRIVACY BY ADDING TO THE INJURY OF THE INTERCEPTION THE INSULT OF
COMPELLED DISCLOSURE.  AND, OF COURSE, TITLE III MAKES ILLEGAL NOT ONLY
UNAUTHORIZED INTERCEPTIONS, BUT ALSO THE DISCLOSURE AND USE OF
INFORMATION OBTAINED THROUGH SUCH INTERCEPTIONS.  18 U.S.C. 2511(1);
SEE 18 U.S.C. 2520.  HENCE, IF THE PROHIBITION OF SEC. 2515 IS NOT
AVAILABLE AS A DEFENSE TO THE CONTEMPT CHARGE, DISCLOSURE THROUGH
COMPELLED TESTIMONY MAKES THE WITNESS THE VICTIM, ONCE AGAIN, OF A
FEDERAL CRIME.  FINALLY, RECOGNITION OF SEC. 2515 AS A DEFENSE
"RELIEVES JUDGES OF THE ANOMALOUS DUTY OF FINDING A PERSON IN CIVIL
CONTEMPT FOR FAILING TO COOPERATE WITH THE PROSECUTOR IN A COURSE OF
CONDUCT WHICH, IF PURSUED UNCHECKED, COULD SUBJECT THE PROSECUTOR
HIMSELF TO HEAVY CIVIL AND CRIMINAL PENALTIES."  IN RE GRAND JURY
PROCEEDINGS, HARRISBURG, PENNSYLVANIA (EGAN), 450 F.2D, AT 220 (ROSENN,
J., CONCURRING).  "AND FOR A COURT, ON PETITION OF THE EXECUTIVE
DEPARTMENT, TO SENTENCE A WITNESS, WHO IS HERSELF THE VICTIM OF THE
ILLEGAL WIRETAPPING, TO JAIL FOR REFUSAL TO PARTICIPATE IN THE
EXPLOITATION OF THAT CRIME IN VIOLATION OF THE EXPLICIT COMMAND OF
HEAD."  IN RE EVANS, 146 U.S.APP.D.C. 310, 323, 452 F.2D 1239, 1252
(1971) (WRIGHT, J., CONCURRING).              II 

OUR CONCLUSION THAT SEC. 2515 IS AN AVAILABLE DEFENSE TO THE
CONTEMPT CHARGE FINDS ADDITIONAL SUPPORT IN 18 U.S.C. 3504, ENACTED AS
PART OF THE ORGANIZED CRIME CONTROL ACT OF 1970, 84 STAT. 935.  SECTION
3504 IS EXPLICIT CONFIRMATION THAT CONGRESS INTENDED THAT GRAND JURY
WITNESSES, IN RELIANCE UPON THE PROHIBITION OF SEC. 2515, MIGHT REFUSE
TO ANSWER QUESTIONS BASED UPON THE ILLEGAL INTERCEPTION OF THEIR
COMMUNICATIONS. 


     "(A) IN ANY . . . PROCEEDING IN OR BEFORE ANY . . . GRAND JURY
. . . . 

     "(1) UPON A CLAIM BY A PARTY AGGRIEVED THAT EVIDENCE IS

  INADMISSIBLE BECAUSE IT IS THE PRIMARY PRODUCT OF AN UNLAWFUL ACT

  OR BECAUSE IT WAS OBTAINED BY THE EXPLOITATION OF AN UNLAWFUL

  ACT, THE OPPONENT OF THE CLAIM SHALL AFFIRM OR DENY THE

  OCCURRENCE OF THE ALLEGED UNLAWFUL ACT." 

UNDER SEC. 3504(A)(2), DISCLOSURE OF INFORMATION RELATING TO THE CLAIM
OF INADMISSIBILITY IS NOT MANDATORY IF THE "UNLAWFUL ACT" TOOK PLACE
BEFORE JUNE 19, 1968, THE EFFECTIVE DATE OF TITLE III.  UNDER SEC.
3504(A)(3), THERE IS A FIVE-YEAR LIMITATION UPON THE CONSIDERATION OF A
CLAIM OF INADMISSIBILITY BASED UPON "THE EXPLOITATION OF AN UNLAWFUL
ACT" THAT TOOK PLACE BEFORE JUNE 19, 1968.  SECTION 3504(B), BY
REFERENCE TO TITLE III, DEFINES AN "UNLAWFUL ACT" AS ONE INVOLVING
ILLEGAL WIRETAPPING OR ELECTRONIC SURVEILLANCE.  /11/ 

CLAIM BY A PARTY AGGRIEVED THAT EVIDENCE IS INADMISSIBLE BECAUSE" OF AN
ILLEGAL INTERCEPTION.  AND SEC. 3504 TRACKS SEC. 2515 IN ITS
APPLICATION TO GRAND JURY PROCEEDINGS.  INDEED, "(THE LANGUAGE USED IN
DEFINING THE TYPES OF PROCEEDINGS, TYPES OF FORUMS, AND JURISDICTIONS
IN WHICH SECTION 3504 IS APPLICABLE WAS TAKEN FROM 18 U.S.C. 2515."  S.
REP. NO. 91-617, P. 154 (1969).  /12/  IN THE APPLICATION OF SEC. 3504
TO "ANY . . . PROCEEDING IN OR BEFORE ANY . . . GRAND JURY," "A PARTY
AGGRIEVED" CAN ONLY BE A WITNESS, FOR THERE IS NO OTHER "PARTY" TO A
GRAND JURY PROCEEDING.  MOREOVER, A "CLAIM . . . THAT EVIDENCE IS
INADMISSIBLE" CAN ONLY BE A CLAIM THAT THE WITNESS' POTENTIAL TESTIMONY
IS INADMISSIBLE.  HENCE, SEC. 3504, BY CONTEMPLATING "A CLAIM BY A
PARTY AGGRIEVED THAT EVIDENCE IS INADMISSIBLE BECAUSE" OF AN ILLEGAL
INTERCEPTION, NECESSARILY RECOGNIZES THAT GRAND JURY WITNESSES MAY RELY
UPON THE PROHIBITION OF SEC. 2515 IN CLAIMING THAT THE EVIDENCE SOUGHT
FROM THEM IS INADMISSIBLE IN THE GRAND JURY PROCEEDINGS.  UPON SUCH A
CLAIM BY A GRAND JURY WITNESS, THE GOVERNMENT, AS "THE OPPONENT OF THE
CLAIM," IS REQUIRED UNDER SEC. 3504(A)(1) TO "AFFIRM OR DENY THE
OCCURRENCE OF THE ALLEGED" ILLEGAL INTERCEPTION.  SECTION 3504 THUS
CONFIRMS THAT CONGRESS MEANT THAT GRAND JURY WITNESSES MIGHT DEFEND
CONTEMPT CHARGES BY INVOKING THE PROHIBITION OF SEC. 2515 AGAINST THE
COMPELLED DISCLOSURE OF EVIDENCE OBTAINED IN VIOLATION OF TITLE III. 

THE GOVERNMENT URGES, HOWEVER, THAT THE PROCEDURES PRESCRIBED IN
SEC. 3504 ARE LIMITED IN APPLICATION TO CLAIMS OF INADMISSIBILITY BASED
UPON ILLEGAL INTERCEPTIONS THAT TOOK PLACE BEFORE JUNE 19, 1968, AND
THAT SEC. 3504 CANNOT, THEREFORE, PROVIDE SUPPORT FOR A CONSTRUCTION OF
SEC. 2515.  WE DISAGREE.  WHILE SUBSECTIONS (A)(2) AND (A)(3) APPLY
ONLY WHEN THE ILLEGAL INTERCEPTION TOOK PLACE BEFORE JUNE 19, 1968, IT
IS CLEAR BOTH FROM THE FACE OF SEC. 3504 /13/  AND FROM ITS LEGISLATIVE
HISTORY THAT SUBSECTION (A)(1), IMPOSING THE DUTY UPON "THE OPPONENT OF
THE CLAIM" TO "AFFIRM OR DENY THE OCCURRENCE OF THE ALLEGED" ILLEGAL
INTERCEPTION, IS NOT SIMILARLY LIMITED. 

THE OMISSION OF THE JUNE 19, 1968, DATE FROM SUBSECTION (A)(1) WAS
NOT INADVERTENT.  SUBSECTION (A)(1) WAS NOT IN THE ORIGINAL SENATE
BILL, ALTHOUGH THE BILL DID CONTAIN COUNTERPARTS OF PRESENT SUBSECTIONS
(A)(2) AND (A)(3) WITHOUT THE JUNE 19, 1968, OR ANY OTHER DATE
LIMITATION.  /14/  SEE HEARINGS BEFORE THE SUBCOMMITTEE ON CRIMINAL
LAWS AND PROCEDURES OF THE SENATE COMMITTEE ON THE JUDICIARY ON S. 30
ET AL., 91ST CONG., 1ST SESS., 102-105 (1969).  SUBSECTION (A)(1) WAS
ADDED AT THE SUGGESTION OF THE DEPARTMENT OF JUSTICE.  AT THAT TIME THE
DEPARTMENT FOLLOWED THE PRACTICE OF SEARCHING GOVERNMENT FILES FOR
INFORMATION ABOUT WIRETAPS AND EAVESDROPPING.  THE DEPARTMENT ADVISED
THE SENATE JUDICIARY COMMITTEE THAT WHILE IT HAD BEEN "CONDUCTING) SUCH
EXAMINATIONS AS A MATTER OF POLICY EVEN IN CASES WHERE NO MOTION HAD)
BEEN FILED . . . DEFENDANTS SHOULD BE ASSURED SUCH AN EXAMINATION BY A
SPECIFIC REQUIREMENT OF LAW RATHER THAN HAVING) TO RELY UPON THE
CONTINUED VIABILITY OF A CURRENT POLICY."  ID., AT 553.  THE SENATE
REPORT ON SEC. 3504 EXPLAINED THAT "SINCE (SUBSECTION (A)(1)) REQUIRES
A PENDING CLAIM AS A PREDICATE TO DISCLOSURE, IT SETS ASIDE THE PRESENT
WASTEFUL PRACTICE OF THE DEPARTMENT OF JUSTICE IN SEARCHING FILES
WITHOUT A MOTION FROM A DEFENDANT."  S. REP. NO. 91-617, P. 154
(1969). 

THE REASON ASSIGNED IN THE SENATE FOR ENACTING SUBSECTION (A)(1) WAS
THUS AS APPLICABLE TO POST- AS IT WAS TO PRE-JUNE 19, 1968,
INTERCEPTIONS.  THE SAME WAS TRUE OF THE HOUSE.  THERE SUBSECTION
(A)(1) WAS SUPPORTED ON THE GROUND THAT IT WOULD BE BENEFICIAL TO THE
VICTIMS OF ILLEGAL INTERCEPTIONS.  SENATOR MCCLELLAN, FOR EXAMPLE, WHO
TESTIFIED BEFORE THE HOUSE SUBCOMMITTEE, INDICATED THAT SUBSECTION
(A)(1) "PLACES UPON THE GOVERNMENT AN AFFIRMATIVE DUTY TO ANSWER A
CLAIM THAT EVIDENCE IS INADMISSIBLE BECAUSE OF UNLAWFUL INVESTIGATIVE
CONDUCT."  "THE FIRST REQUIREMENT (OF SEC. 3504), THAT THE GOVERNMENT
ADMIT OR DENY THE OCCURRENCE OF THE ALLEGED INVASION OF THE DEFENDANT'S
RIGHTS, ACTUALLY PLACES OR CODIFIES A BURDEN UPON THE GOVERNMENT,
RATHER THAN THE DEFENDANT."  HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE
HOUSE COMMITTEE ON THE JUDICIARY ON S. 30 ET AL., 91ST CONG., 2D SESS.,
84, 104 (1970).  OTHER WITNESSES THOUGHT THE PROVISION UNNECESSARY. 
/15/  INDEED, ONE ORGANIZATION SUBMITTED A REPORT THAT DISAPPROVED
SUBSECTION (A)(1) ON THE GROUND THAT THE GOVERNMENT SHOULD ADMIT
ILLEGALITIES WITHOUT A PRIOR CLAIM.  ID., AT 562 (SECTION OF CRIMINAL
LAW OF THE AMERICAN BAR ASSOCIATION).  IT IS ALSO SIGNIFICANT THAT
CONGRESSIONAL QUESTIONING OF A REPRESENTATIVE OF THE DEPARTMENT OF
JUSTICE AT THE HEARINGS WAS DIRECTED TO THE DEPARTMENT'S VIEWS ON THE
INSERTION OF A DATE LIMITATION ONLY IN SUBSECTIONS (A)(2) AND (A)(3). 
ID., AT 659; SEE THE DEPARTMENT'S WRITTEN RESPONSE, ID., AT 675-676. 

THE JUNE 19, 1968, DATE WAS INSERTED IN SUBSECTIONS (A)(2) AND
(A)(3) AFTER THE CONCLUSION OF THE HOUSE HEARINGS.  IT IS APPARENT FROM
THE HOUSE REPORT THAT ONLY SUBSECTIONS (A)(2) AND (A)(3) OF THE SENATE
VERSION WERE TO BE LIMITED BY THE JUNE 19, 1968, DATE AND THAT
SUBSECTION (A)(1) WAS TO BE OPERATIVE WITHOUT REGARD TO WHEN THE
ALLEGED ILLEGAL INTERCEPTION MAY HAVE TAKEN PLACE: 

     "PARAGRAPH (1) PROVIDES THAT UPON A CLAIM BY AN AGGRIEVED
PARTY

  THAT EVIDENCE IS INADMISSIBLE BECAUSE IT IS THE PRIMARY PRODUCT

  OF AN UNLAWFUL ACT, OR BECAUSE IT WAS OBTAINED BY THE

  EXPLOITATION OF AN UNLAWFUL ACT, THE OPPONENT OF THE CLAIM MUST

  AFFIRM OR DENY THE OCCURRENCE OF THE ALLEGED UNLAWFUL ACT.  UNDER

  THIS PROVISION, UPON A CHARGE BY THE DEFENDANT WITH STANDING TO

  CHALLENGE THE ALLEGED UNLAWFUL CONDUCT, THE GOVERNMENT WOULD BE

  REQUIRED TO AFFIRM OR DENY THAT AN UNLAWFUL ACT INVOLVING

  ELECTRONIC SURVEILLANCE HAD IN FACT OCCURRED.  IF SUCH AN

  UNLAWFUL ACT HAD IN FACT OCCURRED, PARAGRAPH (2), BELOW, WILL

  GOVERN DISCLOSURE OF THE CONTENTS OF THE ELECTRONIC SURVEILLANCE

  RECORDS OR TRANSCRIPTS TO THE DEFENDANT AND HIS COUNSEL, UNLESS

  PARAGRAPH (3) APPLIES."  H.R. REP. NO. 91-1549, P. 51 (1970). 

THIS EXPLANATION DEMONSTRATES THAT "THE OPPONENT OF THE CLAIM"  /16/
HAS A DUTY TO "AFFIRM OR DENY" WHENEVER "A PARTY AGGRIEVED" "CLAIMS) .
. . THAT EVIDENCE IS INADMISSIBLE BECAUSE IT IS" DERIVED FROM AN
ILLEGAL INTERCEPTION.  THE DATE JUNE 19, 1968, BECOMES RELEVANT ONLY
AFTER IT IS DETERMINED THAT AN ILLEGAL INTERCEPTION TOOK PLACE AND AN
ISSUE THUS ARISES AS TO DISCLOSURE OF INFORMATION BEARING ON THE
CLAIM.  /17/

        III 

THE GOVERNMENT ARGUES, FINALLY, THAT WHILE SEC. 2515 COULD BE
CONSTRUED TO ALLOW A GRAND JURY WITNESS TO INVOKE ITS PROHIBITION AS A
DEFENSE TO A CONTEMPT CHARGE, "(IF THIS SECTION WERE THE ONLY RELEVANT
PORTION OF (TITLE III),"  BRIEF FOR THE UNITED STATES IN NO. 71-263, P.
19, PROCEEDINGS BEFORE GRAND JURIES ARE OMITTED FROM ANOTHER PROVISION
OF TITLE III, SEC. 2518(10)(A), THAT AUTHORIZES "(ANY AGGRIEVED
PERSON,"  /18/  IN SPECIFIED TYPES OF PROCEEDINGS, TO "MOVE TO SUPPRESS
THE CONTENTS OF ANY INTERCEPTED WIRE OR ORAL COMMUNICATION, OR EVIDENCE
DERIVED THEREFROM."  /19/  BUT IT DOES NOT FOLLOW FROM THE ASSERTED
OMISSION OF GRAND JURY PROCEEDINGS FROM THE SUPPRESSION PROVISION THAT
GRAND JURY WITNESSES CANNOT INVOKE SEC. 2515 AS A DEFENSE IN A CONTEMPT
PROCEEDING UNDER 28 U.S.C. 1826(A).  /20/  THE CONGRESSIONAL CONCERN
WITH THE APPLICABILITY OF SEC. 2518(10)(A) IN GRAND JURY PROCEEDINGS,
SO FAR AS IT IS DISCERNIBLE FROM THE SENATE REPORT, WAS APPARENTLY THAT
DEFENDANTS AND POTENTIAL DEFENDANTS MIGHT BE ABLE TO UTILIZE
SUPPRESSION MOTIONS TO IMPEDE THE ISSUANCE OF INDICTMENTS:  "NORMALLY,
THERE IS NO LIMITATION ON THE CHARACTER OF EVIDENCE THAT MAY BE
PRESENTED TO A GRAND JURY, WHICH IS ENFORCIBLE BY AN INDIVIDUAL. 
(UNITED STATES V. BLUE, 384 U.S. 251 (1966.)  THERE IS NO INTENT TO
CHANGE THIS GENERAL RULE."  S. REP. NO. 1097, 90TH CONG., 2D SESS., 106
(1968).  THE "GENERAL RULE," AS ILLUSTRATED IN BLUE, IS THAT A
DEFENDANT IS NOT ENTITLED TO HAVE HIS INDICTMENT DISMISSED BEFORE TRIAL
SIMPLY BECAUSE THE GOVERNMENT "ACQUIRED) INCRIMINATING EVIDENCE IN
VIOLATION OF THE (LAW)," EVEN IF THE "TAINTED EVIDENCE WAS PRESENTED TO
THE GRAND JURY."  384 U.S.,AT 255 AND N. 3; SEE LAWN V. UNITED STATES,
355 U.S. 339 (1958); COSTELLO V. UNITED STATES, 350 U.S. 359 (1956). 
BUT THAT RULE HAS NOTHING WHATEVER TO DO WITH THE SITUATION OF A GRAND
JURY WITNESS WHO HAS REFUSED TO TESTIFY AND ATTEMPTS TO DEFEND A
SUBSEQUENT CHARGE OF CONTEMPT.  HENCE, WE CANNOT AGREE THAT THE SENATE
REPORT EXPRESSED THE VIEW THAT A GRAND JURY WITNESS WOULD BE FORECLOSED
FROM RAISING THE SEC. 2515 DEFENSE IN A CONTEMPT PROCEEDING UNDER SEC.
1826(A). 

FURTHERMORE, GRAND JURY WITNESSES DO NOT NORMALLY DISCOVER WHETHER
THEY MAY REFUSE TO ANSWER QUESTIONS BY FILING MOTIONS TO SUPPRESS THEIR
POTENTIAL TESTIMONY.  THE USUAL PROCEDURE IS, UPON THE GOVERNMENT'S
MOTION, TO HAVE A COURT ORDER A GRAND JURY WITNESS TO TESTIFY UPON
PENALTY OF CONTEMPT FOR NONCOMPLIANCE.  SECTION 1826(A) EMBODIES THAT
TRADITIONAL PROCEDURE.  THE ASSERTED OMISSION OF GRAND JURY PROCEEDINGS
FROM SEC. 2518(10)(A) MAY WELL REFLECT CONGRESSIONAL ACCEPTANCE OF THAT
PROCEDURE AS ADEQUATE IN THESE CASES.  CONSEQUENTLY, WE CANNOT SUPPOSE
THAT CONGRESS, BY PROVIDING PROCEDURES FOR SUPPRESSION MOTIONS,
INTENDED TO DEPRIVE GRAND JURY WITNESSES OF THE SEC. 2515 DEFENSE THAT
WOULD OTHERWISE BE AVAILABLE TO THEM.  ALTHOUGH THE GOVERNMENT POINTS
TO STATEMENTS IN THE SENATE REPORT TO THE EFFECT THAT SEC. 2518(10)(A)
"LIMITS" SEC. 2515, WE READ THOSE STATEMENTS TO MEAN THAT SUPPRESSION
MOTIONS, AS A METHOD OF ENFORCING THE PROHIBITIONOF SEC. 2515, MUST BE
MADE IN ACCORDANCE WITH THE RESTRICTIONS UPON FORUMS, PROCEDURES, AND
GROUNDS SPECIFIED IN SEC. 2518(A)(1).  /21/ 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN NO. 71
110 IS REVERSED, AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  /22/  THE JUDGMENT OF THE COURT OF
APPEALS FOR THE THIRD CIRCUIT IN NO. 71-263 IS AFFIRMED.  /23/

              IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 71-263, UNITED STATES V. EGAN ET AL., ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

/1A/  SECTION 1826(A) PROVIDES: 

"WHENEVER A WITNESS IN ANY PROCEEDING BEFORE OR ANCILLARY TO ANY
COURT OR GRAND JURY OF THE UNITED STATES REFUSES WITHOUT JUST CAUSE
SHOWN TO COMPLY WITH AN ORDER OF THE COURT TO TESTIFY OR PROVIDE OTHER
INFORMATION, INCLUDING ANY BOOK, PAPER, DOCUMENT, RECORD, RECORDING OR
OTHER MATERIAL, THE COURT, UPON SUCH REFUSAL, OR WHEN SUCH REFUSAL IS
DULY BROUGHT TO ITS ATTENTION, MAY SUMMARILY ORDER HIS CONFINEMENT AT A
SUITABLE PLACE UNTIL SUCH TIME AS THE WITNESS IS WILLING TO GIVE SUCH
TESTIMONY OR PROVIDE SUCH INFORMATION.  NO PERIOD OF SUCH CONFINEMENT
SHALL EXCEED THE LIFE OF-- 

"(1) THE COURT PROCEEDING, OR 

"(2) THE TERM OF THE GRAND JURY, INCLUDING EXTENSIONS, "BEFORE WHICH
SUCH REFUSAL TO COMPLY WITH THE COURT ORDER OCCURRED, BUT IN NO EVENT
SHALL SUCH CONFINEMENT EXCEED EIGHTEEN MONTHS." 

THIS PROVISION WAS ENACTED AS PART OF THE ORGANIZED CRIME CONTROL
ACT OF 1970.  IT WAS INTENDED TO CODIFY THE EXISTING PRACTICE OF THE
FEDERAL COURTS.  S. REP. NO. 91-617, PP. 33, 56-57, 148-149 (1969);
H.R. REP. NO. 91-1549, PP. 33, 46 (1970); SEE SHILLITANI V. UNITED
STATES, 384 U.S. 364 (1966). 

/2/  SECTION 2515 PROVIDES IN FULL: 

"WHENEVER ANY WIRE OR ORAL COMMUNICATION HAS BEEN INTERCEPTED, NO
PART OF THE CONTENTS OF SUCH COMMUNICATION AND NO EVIDENCE DERIVED
THEREFROM MAY BE RECEIVED IN EVIDENCE IN ANY TRIAL, HEARING, OR OTHER
PROCEEDING IN OR BEFORE ANY COURT, GRAND JURY, DEPARTMENT, OFFICER,
AGENCY, REGULATORY BODY, LEGISLATIVE COMMITTEE, OR OTHER AUTHORITY OF
THE UNITED STATES, A STATE, OR A POLITICAL SUBDIVISION THEREOF IF THE
DISCLOSURE OF THAT INFORMATION WOULD BE IN VIOLATION OF THIS CHAPTER." 

/3/  THE THIRD CIRCUIT FOLLOWED EGAN IN IN RE GRAND JURY
INVESTIGATION (MARATEA), 444 F.2D 499 (1971) (EN BANC).  THE DISTRICT
OF COLUMBIA CIRCUIT HAS ALIGNED ITSELF WITH THE THIRD, SEE IN RE EVANS,
146 U.S.APP.D.C. 310, 452 F.2D 1239 (1971), WHILE THE NINTH HAS
CONTINUED TO FOLLOW GELBARD, SEE BACON V. UNITED STATES, 446 F.2D 667
(1971); OLSEN V. UNITED STATES, 446 F.2D 912 (1971); IN RE RUSSO, 448
F.2D 369 (1971); REED V. UNITED STATES, 448 F.2D 1276 (1971); UNITED
STATES V. REYNOLDS, 449 F.2D 1347 (1971).  THE FIRST AND FIFTH CIRCUITS
HAVE ALSO ADVERTED TO THE QUESTION.  UNITED STATES V. DOE (IN RE MARX),
451 F.2D 466 (CA 1 1971); UNITED STATES V. DOE (IN RE POPKIN), 460 F.2D
328 (CA1 1972); DUDLEY V. UNITED STATES, 427 F.2D 1140 (CA5 1970).  SEE
ALSO UNITED STATES EX REL. ROSADO V. FLOOD, 394 F.2D 139 (CA2 1968);
CARTER V. UNITED STATES, 417 F.2D 384 (CA9 1969).     /4/  SEE N. 23,
INFRA.     /5/  IN VIEW OF OUR DISPOSITION OF THESE CASES, WE DO NOT
REACH ANY OF THE CONSTITUTIONAL ISSUES TENDERED AS TO THE RIGHT OF A
GRAND JURY WITNESS TO RELY UPON THE FOURTH AMENDMENT AS A BASIS FOR
REFUSING TO ANSWER QUESTIONS.  WE ALSO NOTE THAT THE CONSTITUTIONALITY
OF TITLE III IS NOT CHALLENGED IN THESE CASES. 

/6/  "PARAGRAPH (D) RECOGNIZES THE RESPONSIBLE PART THAT THE
JUDICIARY MUST PLAY IN SUPERVISING THE INTERCEPTION OF WIRE OR ORAL
COMMUNICATIONS IN ORDER THAT THE PRIVACY OF INNOCENT PERSONS MAY BE
PROTECTED:  . . . THE INTERCEPTION OR USE OF WIRE OR ORAL
COMMUNICATIONS SHOULD ONLY BE ON COURT ORDER.  BECAUSE OF THE
IMPORTANCE OF PRIVACY, SUCH INTERCEPTIONS SHOULD FURTHER BE LIMITED TO
MAJOR OFFENSES AND CARE MUST BE TAKEN TO INSURE THAT NO MISUSE IS MADE
OF ANY INFORMATION OBTAINED."  S. REP. NO. 1097, 90TH CONG., 2D SESS.,
89 (1968). 

/7/  IN STATING THE PROBLEM ADDRESSED BY CONGRESS IN TITLE III, THE
SENATE REPORT NOTED THAT "(BOTH PROPONENTS AND OPPONENTS OF WIRETAPPING
AND ELECTRONIC SURVEILLANCE AGREE THAT THE PRESENT STATE OF THE LAW IN
THIS AREA IS EXTREMELY UNSATISFACTORY AND THAT THE CONGRESS SHOULD ACT
TO CLARIFY THE RESULTING CONFUSION."  ID., AT 67.  THE REPORT AGREED:
"IT WOULD BE, IN SHORT, DIFFICULT TO DEVISE A BODY OF LAW FROM THE
POINT OF VIEW OF PRIVACY OR JUSTICE MORE TOTALLY UNSATISFACTORY IN ITS
CONSEQUENCES."  ID., AT 69.  THE REPORT THEN STRESSED THAT TITLE III
WOULD PROVIDE THE PROTECTION FOR PRIVACY LACKING UNDER THE PRIOR LAW: 

"THE NEED FOR COMPREHENSIVE, FAIR AND EFFECTIVE REFORM SETTING
UNIFORM STANDARDS IS OBVIOUS.  NEW PROTECTIONS FOR PRIVACY MUST BE
ENACTED.  GUIDANCE AND SUPERVISION MUST BE GIVEN TO STATE AND FEDERAL
LAW ENFORCEMENT OFFICERS.  THIS CAN ONLY BE ACCOMPLISHED THROUGH
NATIONAL LEGISLATION.  THIS THE SUBCOMMITTEE PROPOSES."  IBID. 

/8/  "PARAGRAPH (B) RECOGNIZES THAT TO PROTECT THE PRIVACY OF WIRE
AND ORAL COMMUNICATIONS, TO PROTECT THE INTEGRITY OF COURT AND
ADMINISTRATIVE PROCEEDINGS) AND TO PREVENT THE OBSTRUCTION OF
INTERSTATE COMMERCE, IT IS NECESSARY FOR CONGRESS TO DEFINE ON A
UNIFORM BASIS THE CIRCUMSTANCES AND CONDITIONS UNDER WHICH THE
INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS MAY BE AUTHORIZED.  IT ALSO
FINDS THAT ALL UNAUTHORIZED INTERCEPTION OF SUCH COMMUNICATIONS SHOULD
BE PROHIBITED, AS WELL AS THE USE OF THE CONTENTS OF UNAUTHORIZED
INTERCEPTIONS AS EVIDENCE IN COURTS AND ADMINISTRATIVE HEARINGS."  ID.,
AT 89. 

/9/  "SECTION 2515 OF THE NEW CHAPTER IMPOSES AN EVIDENTIARY
SANCTION TO COMPEL COMPLIANCE WITH THE OTHER PROHIBITIONS OF THE
CHAPTER.  IT PROVIDES THAT INTERCEPTED WIRE OR ORAL COMMUNICATIONS OR
EVIDENCE DERIVED THEREFROM MAY NOT BE RECEIVED IN EVIDENCE IN ANY
PROCEEDING BEFORE ANY COURT, GRAND JURY, DEPARTMENT, OFFICER, AGENCY,
REGULATORY BODY, LEGISLATIVE COMMITTEE, OR OTHER AUTHORITY OF THE
UNITED STATES, A STATE, OR A POLITICAL SUBDIVISION OF A STATE, WHERE
THE DISCLOSURE OF THAT INFORMATION WOULD BE IN VIOLATION OF THIS
CHAPTER.  . . . (IT IS NOT LIMITED TO CRIMINAL PROCEEDINGS.  SUCH A
SUPPRESSION RULE IS NECESSARY AND PROPER TO PROTECT PRIVACY.  THE
PROVISION THUS FORMS AN INTEGRAL PART OF THE SYSTEM OF LIMITATIONS
DESIGNED TO PROTECT PRIVACY.  ALONG WITH THE CRIMINAL AND CIVIL
REMEDIES, IT SHOULD SERVE TO GUARANTEE THAT THE STANDARDS OF THE NEW
CHAPTER WILL SHARPLY CURTAIL THE UNLAWFUL INTERCEPTION OF WIRE AND ORAL
COMMUNICATIONS."  ID., AT 96 (CITATIONS OMITTED). 

/10/  CONGRESSIONAL CONCERN WITH THE PROTECTION OF THE PRIVACY OF
COMMUNICATIONS IS EVIDENT ALSO IN THE SPECIFICATION OF WHAT IS TO BE
PROTECTED.  "THE PROPOSED LEGISLATION IS INTENDED TO PROTECT THE
PRIVACY OF THE COMMUNICATION ITSELF . . . . "  ID., AT 90.  AS DEFINED
IN TITLE III, "'CONTENTS,' WHEN USED WITH RESPECT TO ANY WIRE OR ORAL
COMMUNICATION, INCLUDES ANY INFORMATION CONCERNING THE IDENTITY OF THE
PARTIES TO SUCH COMMUNICATION OR THE EXISTENCE, SUBSTANCE, PURPORT, OR
MEANING OF THAT COMMUNICATION."  18 U.S.C. 2510(8).  THE DEFINITION
THUS "INCLUDES) ALL ASPECTS OF THE COMMUNICATION ITSELF.  NO ASPECT,
INCLUDING THE IDENTITY OF THE PARTIES, THE SUBSTANCE OF THE
COMMUNICATION BETWEEN THEM, OR THE FACT OF THE COMMUNICATION ITSELF, IS
EXCLUDED.  THE PRIVACY OF THE COMMUNICATION TO BE PROTECTED IS INTENDED
TO BE COMPREHENSIVE."  S. REP. NO. 1097, SUPRA, AT 91. 

/11/  SECTION 3504 PROVIDES IN FULL: 

"(A) IN ANY TRIAL, HEARING, OR OTHER PROCEEDING IN OR BEFORE ANY
COURT, GRANT JURY, DEPARTMENT, OFFICER, AGENCY, REGULATORY BODY, OR
OTHER AUTHORITY OF THE UNITED STATES-- 

"(1) UPON A CLAIM BY A PARTY AGGRIEVED THAT EVIDENCE IS INADMISSIBLE
BECAUSE IT IS THE PRIMARY PRODUCT OF AN UNLAWFUL ACT OR BECAUSE IT WAS
OBTAINED BY THE EXPLOITATION OF AN UNLAWFUL ACT, THE OPPONENT OF THE
CLAIM SHALL AFFIRM OR DENY THE OCCURRENCE OF THE ALLEGED UNLAWFUL ACT; 

"(2) DISCLOSURE OF INFORMATION FOR A DETERMINATION IF EVIDENCE IS
INADMISSIBLE BECAUSE IT IS THE PRIMARY PRODUCE OF AN UNLAWFUL ACT
OCCURRING PRIOR TO JUNE 19, 1968, OR BECAUSE IT WAS OBTAINED BY THE
EXPLOITATION OF AN UNLAWFUL ACT OCCURRING PRIOR TO JUNE 19, 1968, SHALL
NOT BE REQUIRED UNLESS SUCH INFORMATION MAY BE RELEVANT TO A PENDING
CLAIM OF SUCH INADMISSIBILITY; AND 

"(3) NO CLAIM SHALL BE CONSIDERED THAT EVIDENCE OF AN EVENT IS
INADMISSIBLE ON THE GROUND THAT SUCH EVIDENCE WAS OBTAINED BY THE
EXPLOITATION OF AN UNLAWFUL ACT OCCURRING PRIOR TO JUNE 19, 1968, IF
SUCH EVENT OCCURRED MORE THAN FIVE YEARS AFTER SUCH ALLEGEDLY UNLAWFUL
ACT. 

"(B) AS USED IN THIS SECTION 'UNLAWFUL ACT' MEANS ANY ACT
(INVOLVING) THE USE OF ANY ELECTRONIC, MECHANICAL, OR OTHER DEVICE (AS
DEFINED IN SECTION 2510(5) OF THIS TITLE) IN VIOLATION OF THE
CONSTITUTION OR LAWS OF THE UNITED STATES OR ANY REGULATION OR STANDARD
PROMULGATED PURSUANT THERETO." 

NO QUESTION AS TO THE CONSTITUTIONALITY OF SEC. 3504 IS RAISED IN
THESE CASES. 

/12/  "THE ONLY EXCEPTION IS THAT SECTION 350(4) OMITS LEGISLATIVE
COMMITTEES."  S. REP. NO. 91-617, P. 154 (1969).  IN ADDITION, THE
HOUSE AMENDED SEC. 3504, AS PASSED BY THE SENATE, SO THAT, UNLIKE SEC.
2515, IT "APPLIES ONLY TO TRIALS AND OTHER PROCEEDINGS CONDUCTED UNDER
AUTHORITY OF THE UNITED STATES."  H.R. REP. NO. 91-1549, P. 51 (1970). 

/13/  THE REFERENCES TO JUNE 19, 1968, APPEAR ONLY IN SUBSECTIONS
(A)(2) AND (A)(3).  SUBSECTION (A)(1) DOES NOT SIMILARLY LIMIT THE TERM
"UNLAWFUL ACT" WITH THE PHRASE "OCCURRING PRIOR TO JUNE 19, 1968."  SEE
N. 11, SUPRA.  IT IS THUS PLAIN ON THE FACE OF SEC. 3504 THAT CONGRESS
DID NOT MAKE THE DUTY IMPOSED BY SUBSECTION (A)(1) DEPENDENT UPON THE
DATE OF THE ALLEGED INTERCEPTION. 

/14/  THE SENATE PASSED SEC. 3504 IN A FORM THAT, SO FAR AS IS
PERTINENT TO THE ISSUE BEFORE US, DIFFERED FROM THE SECTION AS FINALLY
ENACTED ONLY IN THAT SUBSECTIONS (A)(2) AND (A)(3) IN THE SENATE
VERSION WERE NOT LIMITED IN APPLICATION TO ILLEGAL INTERCEPTIONS THAT
TOOK PLACE BEFORE JUNE 19, 1968.  SEE S. REP. NO. 91-617, PP. 15, 70
(1969). 

/15/  "(SUBSECTION (A)(1)) PROVIDES THAT IN AN ATTACK UPON THE
ADMISSIBILITY OF EVIDENCE BECAUSE IT IS THE PRODUCT OF AN UNLAWFUL ACT
. . . , THE OPPONENT OF SUCH CLAIM SHALL AFFIRM OR DENY THE ALLEGED
UNLAWFUL ACT . . . . IN THIS RESPECT (SEC. 3504) IS UNNECESSARY." 
HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE JUDICIARY COMMITTEE ON
S. 30 ET AL., 91ST CONG., 2D SESS., 399 (1970) (REPORT OF THE COMMITTEE
ON FEDERAL LEGISLATION OF THE NEW YORK COUNTY LAWYERS' ASSOCIATION). 
"THAT IS THE LAW NOW BY SUPREME COURT DECISION.  (SUBSECTION (A)(1))
ADDS NOTHING TO WHAT EXISTS RIGHT NOW."  ID., AT 513 (TESTIMONY OF
LAWRENCE SPEISER, REPRESENTING THE AMERICAN CIVIL LIBERTIES UNION). 

/16/  CONGRESS, OF COURSE, WAS PRIMARILY CONCERNED WITH "CERTAIN
EVIDENTIARY PROBLEMS CREATED BY ELECTRONIC SURVEILLANCE CONDUCTED BY
THE GOVERNMENT PRIOR TO THE ENACTMENT OF (TITLE III) ON JUNE 19, 1968,
WHICH PROVIDED STATUTORY AUTHORITY FOR OBTAINING SURVEILLANCE WARRANTS
IN CERTAIN TYPES OF CRIMINAL INVESTIGATIONS (18 U.S.C. 2516)."  H.R.
REP. NO. 91-1549, P. 50 (1970).  AS THE SENATE REPORT NOTED, HOWEVER,
SEC. 3504 APPLIES TO "(CIVIL AS WELL AS CRIMINAL PROCEEDINGS . . . ,
REGARDLESS OF WHETHER A GOVERNMENT OR GOVERNMENTAL BODY OR OFFICER IS
OR IS NOT A PARTY OR WITNESS."  S. REP. NO. 91-617, P. 154 (1969). 
MOREOVER, "UNLAWFUL ACTS," AS DEFINED IN SEC. 3504(B), MAY BE "ACTS OF
PRIVATE CITIZENS, AS WELL AS ACTS OF FEDERAL OR STATE OFFICIALS." 
IBID. 

/17/  "UNDER PARAGRAPH (2) DISCLOSURE OF THE INFORMATION SHALL BE
REQUIRED TO BE MADE TO A DEFENDANT WHO HAS DEMONSTRATED THE ILLEGALITY
TO BE MADE TO A DEFENDANT WHO HAS DEMONSTRATED THE ILLEGALITY OF THE
ELECTRONIC SURVEILLANCE (OCCURRING PRIOR TO JUNE 19, 1968) AND HIS
STANDING WHERE SUCH INFORMATION IS OR 'MAY BE' RELEVANT TO A CLAIM OF
INADMISSIBILITY.  IN CASES WHERE THE ELECTRONIC SURVEILLANCE OCCURRED
ON OR AFTER JUNE 19, 1968, DISCLOSURE IS MANDATORY WHERE ILLEGALITY AND
STANDING ARE DEMONSTRATED.  THE PROVISION THUS ALTERS THE PROCEDURE
ANNOUNCED IN ALDERMAN V. UNITED STATES, 394 U.S. 165 ((1969)) WITH
RESPECT TO 'UNLAWFUL ACTS' COMMITTED PRIOR TO JUNE 19, 1968."  H.R.
REP. NO. 91-1549, P. 51 (1970). 

/18/  AN "AGGRIEVED PERSON," FOR PURPOSES OF SEC. 2518(10)(A), IS "A
PERSON WHO WAS A PARTY TO ANY INTERCEPTED WIRE OR ORAL COMMUNICATION OR
A PERSON AGAINST WHOM THE INTERCEPTION WAS DIRECTED."  18 U.S.C.
2510(11); SEE S. REP. NO. 1097, 90TH CONG., 2D SESS., 91, 106 (1968). 

/19/  SECTION 2518(10) PROVIDES IN PERTINENT PART: 

"(A) ANY AGGRIEVED PERSON IN ANY TRIAL, HEARING, OR PROCEEDING IN OR
BEFORE ANY COURT, DEPARTMENT, OFFICER, AGENCY, REGULATORY BODY, OR
OTHER AUTHORITY OF THE UNITED STATES, A STATE, OR A POLITICAL
SUBDIVISION THEREOF, MAY MOVE TO SUPPRESS THE CONTENTS OF ANY
INTERCEPTED WIRE OR ORAL COMMUNICATION, OR EVIDENCE DERIVED THEREFROM .
. . . " 

WHILE ON ITS FACE SEC. 2518(10)(A) APPLIES TO GRAND JURY
PROCEEDINGS, WHEN COMPARED WITH THE LIST OF PROCEEDINGS IN SEC. 2515,
SEE N. 2, SUPRA, IT APPEARS THAT "GRAND JURY" WAS OMITTED FROM THE LIST
IN SEC. 2518(10)(A). 

/20/  "BECAUSE NO PERSON IS A PARTY AS SUCH TO A GRAND JURY
PROCEEDING, THE PROVISION DOES NOT ENVISION THE MAKING OF A MOTION TO
SUPPRESS IN THE CONTEXT OF SUCH A PROCEEDING ITSELF.  . . . IT IS THE
INTENT OF THE PROVISION ONLY THAT WHEN A MOTION TO SUPPRESS IS GRANTED
IN ANOTHER CONTEXT, ITS SCOPE MAY INCLUDE USE IN A FUTURE GRAND JURY
PROCEEDING."  S. REP. NO. 1097, 90TH CONG., 2D SESS., 106 (1968).  THIS
ASSERTION IS NOT AMBIGUOUS, FOR MOTIONS TO SUPPRESS EVIDENCE TO BE
PRESENTED TO A GRAND JURY WOULD PRESUMABLY BE MADE IN COURT. 

/21/  "THIS DEFINITION (SEC. 2510(11)) DEFINES THE CLASS OF THOSE
WHO ARE ENTITLED TO INVOKE THE SUPPRESSION SANCTION OF SECTION 2515 . .
. THROUGH THE MOTION TO SUPPRESS PROVIDED FOR BY SECTION 2518(10)(A) .
. . ."  ID., AT 91.  "THE PROVISION (SEC. 2515) MUST, OF COURSE, BE
READ IN LIGHT OF SECTION 2518(10)(A) . . . WHICH DEFINES THE CLASS
ENTITLED TO MAKE A MOTION TO SUPPRESS."  ID., AT 96.  "THIS PROVISION
(SEC. 2518(10)(A)) MUST BE READ IN CONNECTION WITH SECTIONS 2515 AND
2517 . . . WHICH IT LIMITS.  IT PROVIDES THE REMEDY FOR THE RIGHT
CREATED BY SECTION 2515."  ID., AT 106. 

/22/  BECAUSE THE DISTRICT COURT AND THE COURT OF APPEALS
ERRONEOUSLY HELD THAT GRAND JURY WITNESSES HAVE NO RIGHT TO INVOKE A
SEC. 2515 DEFENSE IN CONTEMPT PROCEEDINGS UNDER SEC. 1826(A), WE NEED
NOT DECIDE WHETHER GELBARD AND PARNAS MAY REFUSE TO ANSWER QUESTIONS IF
THE INTERCEPTIONS OF THEIR CONVERSATIONS WERE PURSUANT TO COURT ORDER. 
THAT IS A MATTER FOR THE DISTRICT COURT TO CONSIDER IN THE FIRST
INSTANCE. 

/23/  THE COURT OF APPEALS VACATED THE JUDGMENTS OF CONTEMPT AND
REMANDED FOR HEARINGS TO DETERMINE WHETHER THE QUESTIONS ASKED
RESPONDENTS RESULTED FROM THE ILLEGAL INTERCEPTION OF THEIR
COMMUNICATIONS.  450 F.2D, AT 217.  ALTHOUGH, IN THIS COURT, THE
GOVERNMENT NOW DENIES THAT THERE WAS ANY OVERHEARING, IN VIEW OF OUR
AFFIRMANCE THAT IS A MATTER FOR THE DISTRICT COURT TO CONSIDER IN THE
FIRST INSTANCE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

ALTHOUGH I JOIN IN THE OPINION OF THE COURT, I BELIEVE THAT,
INDEPENDENTLY OF ANY STATUTORY REFUGE WHICH CONGRESS MAY CHOOSE TO
PROVIDE, THE FOURTH AMENDMENT SHIELDS A GRAND JURY WITNESS FROM ANY
QUESTION (OR ANY SUBPOENA) WHICH IS BASED UPON INFORMATION GARNERED
FROM SEARCHES WHICH INVADE HIS OWN CONSTITUTIONALLY PROTECTED PRIVACY. 

I WOULD HOLD THAT TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE
STREETS ACT OF 1968 OFFENDS THE FOURTH AMENDMENT, AS DOES ALL
WIRETAPPING AND BUGGING, FOR REASONS WHICH I HAVE OFTEN EXPRESSED
ELSEWHERE.  E.G., COX V. UNITED STATES, 406 U.S. 934; WILLIAMSON V.
UNITED STATES, 405 U.S. 1026; KATZ V. UNITED STATES, 389 U.S. 347, 359;
BERGER V. NEW YORK, 388 U.S. 41, 64; OSBORN V. UNITED STATES, 385 U.S.
323 340; PUGACH V. DOLLINGER, 365 U.S. 458, 459; ON LEE V. UNITED
STATES, 343 U.S. 747, 762.  IN EACH OF THE PRESENT CASES A GRAND JURY
WITNESS SEEKS TO PROVE AND SUPPRESS SUSPECTED UNCONSTITUTIONAL SEIZURES
OF HIS OWN TELEPHONE CONVERSATIONS.  AND, IN EVERY RELEVANT RESPECT,
THE PROCEEDINGS BELOW WERE IN STRIKING PARALLEL TO THOSE IN
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385.     IN THAT
CASE, AFTER FEDERAL AGENTS UNLAWFULLY SEIZED PAPERS BELONGING TO THE
SILVERTHORNES AND TO THEIR LUMBER COMPANY, THE DOCUMENTS WERE RETURNED
UPON ORDER OF THE COURT.  IN THE INTERIM, HOWEVER, THE AGENTS HAD
COPIED THEM.  AFTER RETURNING THE SEIZED ORIGINALS, THE PROSECUTOR
ATTEMPTED TO REGAIN POSSESSION OF THEM BY ISSUING A GRAND JURY SUBPOENA
DUCES TECUM.  WHEN THE PETITIONERS REFUSED TO COMPLY WITH THE SUBPOENA
THEY WERE CONVICTED OF CONTEMPT.  IN REVERSING THOSE JUDGMENTS, THIS
COURT, THROUGH MR. JUSTICE HOLMES, HELD THAT THE GOVERNMENT WAS BARRED
FROM REAPING ANY FRUIT FROM ITS FORBIDDEN ACT AND WOVE INTO OUR
CONSTITUTIONAL FABRIC THE CELEBRATED MAXIM THAT "(THE ESSENCE OF A
PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE IN A CERTAIN WAY IS
THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE USED BEFORE THE COURT
BUT THAT IT SHALL NOT BE USED AT ALL."  251 U.S.,AT 392. 

PETITIONERS GELBARD AND PARNAS AND RESPONDENTS EGAN AND WALSH OCCUPY
POSITIONS WHICH ARE VIRTUALLY IDENTICAL TO THAT OF THE SILVERTHORNES
AND THEIR COMPANY.  THEY DESIRE TO DEMONSTRATE THAT BUT FOR UNLAWFUL
SURVEILLANCE OF THEM THE GRAND JURY WOULD NOT NOW BE SEEKING TESTIMONY
FROM THEM.  AND, AS IN SILVERTHORNE, THEY ARE THE VICTIMS OF THE
ALLEGED VIOLATIONS, SEEKING TO MEND NO ONE'S PRIVACY OTHER THAN THEIR
OWN.  FINALLY, HERE, AS THERE, THE REMEDY PREFERRED IS PERMISSION TO
REFUSE TO RENDER THE REQUESTED INFORMATION. 

UNLESS SILVERTHORNE IS TO BE OVERRULED AND UPROOTED FROM THOSE
DECISIONS WHICH HAVE FOLLOWED IT, SUCH AS NARDONE V. UNITED STATES, 308
U.S. 338, 340-341; BENANTI V. UNITED STATES, 355 U.S. 96, 103; ELKINS
V. UNITED STATES, 364 U.S. 206, 210; MAPP V. OHIO, 367 U.S. 643, 648;
WONG SUN V. UNITED STATES, 371 U.S. 471, 484-485; HARRISON V. UNITED
STATES, 392 U.S. 219, 222; AND ALDERMAN V. UNITED STATES, 394 U.S. 165,
171, 177, THESE WITNESSES DESERVE OPPORTUNITIES TO PROVE THEIR
ALLEGATIONS AND, IF SUCCESSFUL, TO WITHHOLD FROM THE GOVERNMENT ANY
FURTHER REWARDS OF ITS "DIRTY BUSINESS."  OLMSTEAD V. UNITED STATES,
277 U.S. 438, 470 (HOLMES, J., DISSENTING). 

THE SOLICITOR GENERAL DOES NOT PROPOSE THAT SILVERTHORNE BE
OVERRULED.  NOR DOES HE DENY ITS REMARKABLE SIMILARITY.  INDEED, HIS
ANALYSIS OF THE CONSTITUTIONAL ISSUE AT STAKE HERE FAILS EVEN TO
MENTION THAT LANDMARK DECISION.  /1/  AND NONE OF THE PRECEDENTS CITED
BY HIM DETRACT FROM SILVERTHORNE'S VITALITY.  /2/ 

RATHER, THE GOVERNMENT TREATS THIS DECISION AS A "NOVEL EXTENSION"
OF FOURTH AMENDMENT PROTECTIONS, LEANING HEAVILY UPON THE OBSERVATION
THAT THE EXCLUSIONARY RULE HAS NEVER BEEN EXTENDED TO "PROVIDE THAT
ILLEGALLY SEIZED EVIDENCE IS INADMISSIBLE AGAINST ANYONE FOR ANY
PURPOSE."  ALDERMAN, SUPRA, AT 175.  THIS APHORISM IS CONTRAVENED,
CONCLUDES THE SOLICITOR GENERAL, BY ANY RESULT PERMITTING A
NONDEFENDANT TO "SUPPRESS" EVIDENCE SOUGHT TO BE INTRODUCED AT
ANOTHER'S TRIAL OR TO WITHHOLD TESTIMONY FROM A GRAND JURY
INVESTIGATION OF SOMEONE ELSE. 

TO BE SURE, NO MAJORITY OF THIS COURT HAS EVER HELD THAT "ANYTHING
WHICH DETERS ILLEGAL SEARCHES IS THEREBY COMMANDED BY THE FOURTH
AMENDMENT."  ID., AT 174.  BUT THAT CONCERN IS NOT AT STAKE HERE.  NO
ONE IS ATTEMPTING TO ASSERT VICARIOUSLY THE RIGHTS OF OTHERS.  HERE IT
IS ONLY NECESSARY TO ADHERE TO THE BASIC PRINCIPLE THAT VICTIMS OF
UNCONSTITUTIONAL PRACTICES ARE THEMSELVES ENTITLED TO EFFECTIVE
REMEDIES.  FOR, "WHERE FEDERALLY PROTECTED RIGHTS HAVE BEEN INVADED, IT
HAS BEEN THE RULE FROM THE BEGINNING THAT COURTS WILL BE ALERT TO
ADJUST THEIR REMEDIES SO AS TO GRANT THE NECESSARY RELIEF."  BELL V.
HOOD, 327 U.S. 678, 684.  AND SEE BIVENS V. SIX UNKNOWN FEDERAL
NARCOTIC AGENTS, 403 U.S. 388. 

THE FACT THAT THE MOVANTS BELOW SOUGHT TO WITHHOLD EVIDENCE DOES NOT
TRANSFORM THESE CASES INTO UNUSUAL ONES.  A WITNESS IS OFTEN PERMITTED
TO RETAIN EXCLUSIVE CUSTODY OF INFORMATION WHERE A CONTRARY COURSE
WOULD JEOPARDIZE IMPORTANT LIBERTIES SUCH AS FIRST AMENDMENT
GUARANTEES, WATKINS V. UNITED STATES, 354 U.S. 178; NAACP V. ALABAMA,
357 U.S. 449, 463; GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION
COMMITTEE, 372 U.S. 539; BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1, 6
7; IN RE STOLAR, 401 U.S. 23; FIFTH AMENDMENT PRIVILEGES, HOFFMAN V.
UNITED STATES, 341 U.S. 479, OR TRADITIONAL TESTIMONIAL PRIVILEGES. 
/3/ 

THE SAME IS TRUE OF FOURTH AMENDMENT AUTHORITY TO WITHHOLD EVIDENCE,
EVEN FROM A GRAND JURY.  HALE V. HENKEL, 201 U.S. 43; SILVERTHORNE,
SUPRA.  NO ONE WOULD DOUBT, FOR EXAMPLE, THAT UNDER BELL V. HOOD,
SUPRA, AND BIVENS, SUPRA (OR MONROE V. PAPE, 365 U.S. 167, WHERE STATE
POLICE WERE CONCERNED), A TELEPHONE SUBSCRIBER COULD OBTAIN AN
INJUNCTION AGAINST UNLAWFUL WIRETAPPING OF HIS TELEPHONE DESPITE THE
FACT THAT SUCH TERMINATION MIGHT REMOVE FROM THE GOVERNMENT'S REACH
EVIDENCE WITH WHICH IT COULD CONVICT THIRD PARTIES. 

A CONTRARY JUDGMENT TODAY WOULD CRIPPLE ENFORCEMENT OF THE FOURTH
AMENDMENT.  FOR, IF THESE MOVANTS, WHO THE SOLICITOR GENERAL CONCEDES
ARE NOT THE PROSECUTORS' TARGETS, WERE REQUIRED TO SUBMIT TO
INTERROGATION, THEN THEY (UNLIKE PROSPECTIVE DEFENDANTS) WOULD HAVE NO
FURTHER OPPORTUNITY TO VINDICATE THEIR INJURIES.  MORE GENERALLY,
BECAUSE SURVEILLANCES ARE OFTEN "DIRECTED PRIMARILY TO THE COLLECTING
AND MAINTAINING OF INTELLIGENCE WITH RESPECT TO SUBVERSIVE FORCES, AND
ARE NOT AN ATTEMPT TO GATHER EVIDENCE FOR SPECIFIC CRIMINAL
PROSECUTIONS," UNITED STATES V. UNITED STATES DISTRICT COURT, 407 U.S.
297, 318-319, THE NORMAL EXCLUSIONARY THREAT OF WEEKS V. UNITED STATES,
232 U.S. 383, WOULD BE SHARPLY ATTENUATED AND INTELLIGENCE CENTERS
WOULD BE LOOSED FROM VIRTUALLY EVERY DETERRENT AGAINST ABUSE.  /4/
FURTHERMORE, EVEN WHERE THE "UNINVITED EAR" IS USED TO OBTAIN CRIMINAL
CONVICTIONS, RATHER THAN FOR DOMESTIC SPYING, A RULE DIFFERENT FROM OUR
RESULT TODAY WOULD SUPPLY POLICE WITH AN ADDED INCENTIVE TO RECORD THE
CONVERSATIONS OF SUSPECTED CO-CONSPIRATORS IN ORDER TO MARSHAL EVIDENCE
AGAINST ALLEGED RINGLEADERS.  WE ARE TOLD THAT "(POLICE ARE OFTEN
TEMPTED TO MAKE ILLEGAL SEARCHES DURING THE INVESTIGATIONS OF A LARGE
CONSPIRACY.  ONCE THE POLICE HAVE ESTABLISHED THAT SEVERAL INDIVIDUALS
ARE INVOLVED, THEY MAY DEEM IT WORTHWHILE TO VIOLATE THE CONSTITUTIONAL
RIGHTS OF ONE MEMBER OF THE CONSPIRACY (PARTICULARLY A MINOR MEMBER) IN
ORDER TO OBTAIN EVIDENCE FOR USE AGAINST OTHERS."  WHITE & GREENSPAN,
STANDING TO OBJECT TO SEARCH AND SEIZURE, 118 U.PA.L.REV.  333, 351
(1970) FOOTNOTES OMITTED).  BECAUSE DEFENDANTS ARE NORMALLY DENIED
"STANDING" TO SUPPRESS EVIDENCE PROCURED AS A RESULT OF INVASIONS OF
OTHERS' PRIVACY, TODAY'S REMEDY IS NECESSARY TO HELP NEUTRALIZE THE
PROSECUTORIAL REWARD OF SUCH TACTICS. 

TODAY'S REMEDY ASSUMES AN ADDED AND CRITICAL MEASURE OF IMPORTANCE
FOR, DUE TO THE CLANDESTINE NATURE OF ELECTRONIC EAVESDROPPING, OTHER
INHIBITIONS ON OFFICERS' ABUSE, SUCH AS THE THREAT OF DAMAGE ACTIONS,
REFORM THROUGH THE POLITICAL PROCESS, AND ADVERSE PUBLICITY, WILL BE OF
LITTLE AVAIL IN GUARDING PRIVACY. 

MOREOVER, WHEN A COURT ASSISTS THE GOVERNMENT IN EXTRACTING FRUITS
FROM THE VICTIMS OF ITS LAWLESS SEARCHES IT DEGRADES THE INTEGRITY OF
THE JUDICIAL SYSTEM.  FOR "(NOTHING CAN DESTROY A GOVERNMENT MORE
QUICKLY THAN ITS FAILURE TO OBSERVE ITS OWN LAWS, OR WORSE, ITS
DISREGARD OF THE CHARTER OF ITS OWN EXISTENCE."  MAPP V. OHIO, 367 U.S.
643, 659.  FOR THIS REASON, OUR DECISIONS HAVE EMBRACED THE VIEW THAT
"(THE TENDENCY OF THOSE WHO EXECUTE THE CRIMINAL LAWS OF THE COUNTRY TO
OBTAIN CONVICTION BY MEANS OF UNLAWFUL SEIZURES AND ENFORCED
CONFESSIONS . . . SHOULD FIND NO SANCTION IN THE JUDGMENTS OF THE
COURTS, WHICH ARE CHARGED AT ALL TIMES WITH SUPPORT OF THE
CONSTITUTION."  WEEKS V. UNITED STATES, 232 U.S. 383, 392.  AS
MENTIONED EARLIER, THIS PRINCIPLE WAS AT THE HEART OF THE SILVERTHORNE
DECISION.  LATER IN HIS DISSENT IN OLMSTEAD V. UNITED STATES, 277
U.S.,AT 470, A CASE IN WHICH FEDERAL WIRETAPPERS HAD VIOLATED AN OREGON
LAW, MR. JUSTICE HOLMES, CITING SILVERTHORNE, THOUGHT THAT BOTH THE
OFFICERS AND THE COURT WERE HONOR BOUND TO OBSERVE THE STATE LAW:  "IF
THE EXISTING CODE DOES NOT PERMIT DISTRICT ATTORNEYS TO HAVE A HAND IN
SUCH DIRTY BUSINESS IT DOES NOT PERMIT THE JUDGE TO ALLOW SUCH
INIQUITIES TO SUCCEED."  IN THE SAME CASE, JUSTICE BRANDEIS, WHO WAS
THEN ALONE IN HIS VIEW THAT WIRETAPPING WAS A SEARCH WITHIN THE MEANING
OF THE FOURTH AMENDMENT, PHRASED IT THIS WAY:  "IN A GOVERNMENT OF
LAWS, EXISTENCE OF THE GOVERNMENT WILL BE IMPERILLED IF IT FAILS TO
OBSERVE THE LAW SCRUPULOUSLY.  OUR GOVERNMENT IS THE POTENT, THE
OMNIPRESENT TEACHER.  FOR GOOD OR FOR ILL, IT TEACHES THE WHOLE PEOPLE
BY ITS EXAMPLE.  CRIME IS CONTAGIOUS.  IF THE GOVERNMENT BECOMES A
LAWBREAKER, IT BREEDS CONTEMPT FOR LAW; IT INVITES EVERY MAN TO BECOME
A LAW UNTO HIMSELF; IT INVITES ANARCHY."  ID., AT 485. 

IN AN ENTRAPMENT CASE, MR. JUSTICE FRANKFURTER, WITH WHOM JUSTICES
HARLAN, BRENNAN, AND I JOINED, THOUGHT THAT "THE FEDERAL COURTS HAVE AN
OBLIGATION TO SET THEIR FACE AGAINST ENFORCEMENT OF THE LAW BY LAWLESS
MEANS" BECAUSE "(PUBLIC CONFIDENCE IN THE FAIR AND HONORABLE
ADMINISTRATION OF JUSTICE, UPON WHICH ULTIMATELY DEPENDS THE RULE OF
LAW; IS THE TRANSCENDING VALUE AT STAKE."  SHERMAN V. UNITED STATES,
356 U.S. 369, 380 (CONCURRING IN RESULT); SEE ALSO HIS OPINION FOR THE
COURT IN NARDONE V. UNITED STATES, 308 U.S. 338, 340-341.  IN A SELF
INCRIMINATION CLAUSE DECISION, MR. JUSTICE BRENNAN (JOINED BY MR.
JUSTICE MARSHALL AND MYSELF) USED FEWER WORDS:  "IT IS MONSTROUS THAT
COURTS SHOULD AID OR ABET THE LAWBREAKING POLICE OFFICER."  HARRIS V.
NEW YORK, 401 U.S. 222, 232 (DISSENTING OPINION). 

THESE STANDARDS ARE AT WAR WITH THE GOVERNMENT'S CLAIM THAT
INTELLIGENCE AGENCIES MAY INVOKE THE AID OF THE COURTS IN ORDER TO
COMPOUND THEIR NEGLECT OF CONSTITUTIONAL VALUES.  TO BE SURE, AT SOME
POINT TAINT MAY BECOME SO ATTENUATED THAT IGNORING THE ORIGINAL BLUNDER
WILL NOT BREED CONTEMPT FOR LAW.  BUT HERE JUDGES ARE NOT ASKED MERELY
TO OVERLOOK INFRACTIONS DIMINISHED BY TIME AND INDEPENDENT EVENTS. 
RATHER, IF THESE WITNESSES' ALLEGATIONS ARE CORRECT, JUDGES ARE BEING
INVITED TO BECOME THE HANDMAIDENS OF INTERNATIONAL /5/  POLICE
LAWLESSNESS BY ORDERING THESE VICTIMS TO ELABORATE ON THEIR TELEPHONIC
COMMUNICATIONS OF WHICH THE PROSECUTORS WOULD HAVE NO KNOWLEDGE BUT FOR
THEIR UNCONSTITUTIONAL SURVEILLANCE. 

IN SUMMARY, I BELIEVE THAT SILVERTHORNE WAS RIGHTLY DECIDED, THAT IT
WAS ROOTED IN OUR CONTINUING POLICY TO EQUIP VICTIMS OF
UNCONSTITUTIONAL SEARCHES WITH EFFECTIVE MEANS OF REDRESS, THAT IT HAS
ENJOYED REPEATED PRAISE IN SUBSEQUENT DECISION, THAT IT HAS NOT BEEN
SERIOUSLY CHALLENGED HERE, AND THAT IT REQUIRES THAT WE AFFIRM THE
THIRD CIRCUIT IN EGAN AND WALSH AND REVERSE THE NINTH CIRCUIT IN
GELBARD AND PARNAS. 

/1/  AT ORAL ARGUMENT, COUNSEL FOR THE UNITED STATES CONTENDED THAT
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385, WAS
DISTINGUISHABLE.  FIRST, IT WAS SAID THAT IN THESE CASES THERE HAS YET
BEEN NO SHOWING OF ILLEGAL SURVEILLANCE.  TR. OF ORAL ARG. 26.  THE
POINT IS, HOWEVER, THAT THESE WITNESSES CLAIM TO BE ABLE TO MAKE SUCH A
SHOWING, ALTHOUGH NONE OF THE TRIAL COURTS BELOW HAVE PERMITTED
HEARINGS ON THE ISSUE.  SECOND, IT WAS ALSO ARGUED THAT SILVERTHORNE
WAS INAPPOSITE BECAUSE THERE THE VERY PAPERS SEIZED UNLAWFULLY WERE THE
ONES LATER SOUGHT UNDER THE COURT'S SUBPOENA.  IBID.  BUT THERE IS
LITTLE DOUBT THAT MR. JUSTICE HOLMES' REASONING WOULD ALSO HAVE
RELIEVED THE SILVERTHORNES FROM TESTIFYING BEFORE THE GRAND JURY AS TO
THE CONTENTS OF THE PURLOINED PAPERS. 

/2/  THREE OF THE CASES CITED BY THE SOLICITOR GENERAL STAND FOR
NOTHING MORE THAN THE RULE THAT A DEFENDANT MAY NOT CHALLENGE PRIOR TO
TRIAL THE EVIDENCE FROM WHICH THE INDICTMENT WAS DRAWN.  COSTELLO V.
UNITED STATES, 350 U.S. 359; LAWN V. UNITED STATES, 355 U.S. 339;
UNITED STATES V. BLUE, 384 U.S. 251.  TO BE SURE, THE OTHER AUTHORITIES
CITED REJECTED VARIOUS PRIVILEGES FROM TESTIFYING BUT ONLY FOR REASONS
WHICH ARE NOT IN CONFLICT WITH SILVERTHORNE LUMBER CO. V. UNITED
STATES, SUPRA.  FOR EXAMPLE, IN MURPHY V. WATERFRONT COMM'N, 378 U.S.
52; AND PIEMONTE V. UNITED STATES, 367 U.S. 556, IN LIGHT OF OUR
DISPOSITIONS IN THOSE CASES, NO THREATENED CONSTITUTIONAL VIOLATION
REMAINED AS A PREDICATE FOR A PRIVILEGE.  FOR IN MURPHY WE ELIMINATED
THE THREAT THAT TESTIMONY TO A STATE GRAND JURY GIVEN IN EXCHANGE FOR A
STATE IMMUNITY GRANT COULD, DESPITE THE WITNESS' FEARS TO THE CONTRARY,
BE USED AGAINST HIM BY OTHER JURISDICTIONS.  AND IN PIEMONTE THE FIFTH
AMENDMENT BASIS FOR DECLINING TO ANSWER WAS DISSOLVED BY THE MAJORITY'S
FINDING THAT THERE HAD BEEN A PROPER GRANT OF IMMUNITY.  TRUE,
GOLDSTEIN V. UNITED STATES, 316 U.S. 114, 121, AND ALDERMAN V. UNITED
STATES, 394 U.S. 165, DENIED STANDING TO DEFENDANTS TO SUPPRESS THE
FRUITS OF FOURTH AMENDMENT INJURIES TO OTHERS, BUT THAT ISSUE IS NOT
PRESENTED HERE INASMUCH AS ALL OF THESE MOVANTS PURPORTED TO BE VICTIMS
OF INTERCEPTED CONVERSATIONS.  FINALLY, BLAIR V. UNITED STATES, 250
U.S. 273, HELD THAT A GRAND JURY WITNESS MAY NOT WITHHOLD EVIDENCE
SOLELY BECAUSE HE BELIEVES THAT THE STATUTES (WHICH THE GRAND JURY
SUSPECTS MAY HAVE BEEN VIOLATED) ARE UNCONSTITUTIONAL.  THAT
CONTENTION, OF COURSE, HAS NOT BEEN TENDERED BY THESE GRAND JURY
WITNESSES.  MOREOVER, BLAIR ITSELF RECOGNIZES THAT "FOR SPECIAL REASONS
A WITNESS MAY BE EXCUSED FROM TELLING ALL THAT HE KNOWS."  ID., AT
281.  "SPECIAL REASONS" PRESUMABLY WAS MEANT TO INCLUDE FOURTH
AMENDMENT GROUNDS, AS WAS PERMITTED SHORTLY THEREAFTER IN
SILVERTHORNE. 

/3/  E.G., ALEXANDER V. UNITED STATES, 138 U.S. 353 (LAWYER-CLIENT);
BLAU V. UNITED STATES, 340 U.S. 332 (MARITAL); UNITED STATES V.
REYNOLDS, 345 U.S. 1 (MILITARY AIRCRAFT SPECIFICATIONS). 

/4/  OUR REMARK IN UNITED STATES V. UNITED STATES DISTRICT COURT,
407 U.S. 297, 318-319, WAS OUR UNDERSTANDING ONLY OF THE MOTIVATION
BEHIND FEDERAL NATIONAL SECURITY WIRETAPPING.  BUT THE STATISTICAL
EVIDENCE SHOWS THAT NONSECURITY WIRETAPPING ALSO IS SELDOM USED TO
CONVICT CRIMINALS.  IN 1969, COURT-ORDERED FEDERAL WIRETAPPING SEIZED
44,940 CONVERSATIONS BUT ONLY 26 CONVICTIONS WERE OBTAINED.  IN 1970,
FEDERAL COURT ORDERS PERMITTED THE SEIZURE OF 147,780 COMMUNICATIONS,
WITH 48 CONVICTIONS.  H. SCHWARTZ, A REPORT ON THE COSTS AND BENEFITS
OF ELECTRONIC SURVEILLANCE II-V (1971).     /5/  AS MR. JUSTICE FORTAS
SAID, WIRETAPPING "IS USUALLY THE PRODUCT OF CALCULATED, OFFICIAL
DECISION RATHER THAN THE ERROR OF AN INDIVIDUAL AGENT OF THE STATE." 
ALDERMAN V. UNITED STATES, 394 U.S.,AT 203. 

MR. JUSTICE WHITE, CONCURRING. 

UNDER 28 U.S.C. 1826(A) A WITNESS WHO REFUSES TO TESTIFY "WITHOUT
JUST CAUSE" MAY BE HELD IN CONTEMPT OF COURT.  HERE, GRAND JURY
WITNESSES ARE INVOLVED, AND THE JUST CAUSE CLAIMED TO EXCUSE THEM IS
THAT THE TESTIMONY DEMANDED INVOLVES THE DISCLOSURE AND USE OF
COMMUNICATIONS ALLEGEDLY INTERCEPTED INVIOLATION OF THE CONTROLLING
FEDERAL STATUTE AND HENCE INADMISSIBLE UNDER 18 U.S.C. 2515. 

THE UNITED STATES ASSERTS THAT SEC. 2515 AFFORDS NO EXCUSE TO GRAND
JURY WITNESSES UNDER ANY CIRCUMSTANCES.  RELIANCE IS PLACED ON SEC.
2518(10)(A) AND THE LEGISLATIVE HISTORY OF THE STATUTE.  I AGREE WITH
THE COURT, HOWEVER, THAT AT LEAST WHERE THE UNITED STATES HAS
INTERCEPTED COMMUNICATIONS WITHOUT A WARRANT IN CIRCUMSTANCES WHERE
COURT APPROVAL WAS REQUIRED, IT IS APPROPRIATE IN CONSTRUING AND
APPLYING 28 U.S.C. 1826 NOT TO REQUIRE THE GRAND JURY WITNESS TO ANSWER
AND HENCE FURTHER THE PLAIN POLICY OF THE WIRETAP STATUTE.  THIS
UNQUESTIONABLY WORKS A CHANGE IN THE LAW WITH RESPECT TO THE RIGHTS OF
GRAND JURY WITNESSES, BUT IT IS A CHANGE ROOTED IN A COMPLEX STATUTE,
THE MEANING OF WHICH IS NOT IMMEDIATELY OBVIOUS AS THE OPINIONS FILED
TODAY SO TELLINGLY DEMONSTRATE. 

WHERE THE GOVERNMENT PRODUCES A COURT ORDER FOR THE INTERCEPTION,
HOWEVER, AND THE WITNESS NEVERTHELESS DEMANDS A FULL-BLOWN SUPPRESSION
HEARING TO DETERMINE THE LEGALITY OF THE ORDER, THERE MAY BE ROOM FOR
STRIKING A DIFFERENT ACCOMMODATION BETWEEN THE DUE FUNCTIONING OF THE
GRAND JURY SYSTEM AND THE FEDERAL WIRETAP STATUTE.  SUPPRESSION
HEARINGS IN THESE CIRCUMSTANCES WOULD RESULT IN PROTRACTED INTERRUPTION
OF GRAND JURY PROCEEDINGS.  AT THE SAME TIME, PROSECUTORS AND OTHER
OFFICERS WHO HAVE BEEN GRANTED AND RELIED ON A COURT ORDER FOR THE
INTERCEPTION WOULD BE SUBJECT TO NO LIABILITY UNDER THE STATUTE,
WHETHER THE ORDER IS VALID OR NOT; AND, IN ANY EVENT, THE DETERRENT
VALUE OF EXCLUDING THE EVIDENCE WILL BE MARGINAL AT BEST.  IT IS WELL,
THEREFORE, THAT THE COURT HAS LEFT THIS ISSUE OPEN FOR CONSIDERATION BY
THE DISTRICT COURT ON REMAND.  SEE ANTE, AT 61 N. 22. 

OF COURSE, WHERE THE GOVERNMENT OFFICIALLY DENIES THE FACT OF
ELECTRONIC SURVEILLANCE OF THE WITNESS, THE MATTER IS AT AN END AND THE
WITNESS MUST ANSWER. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMAN, AND MR. JUSTICE POWELL JOIN, DISSENTING. 

DISPOSITION OF THESE CASES DEPENDS ON THE SORTING OUT OF ADMITTEDLY
CONFLICTING IMPLICATIONS FROM DIFFERENT SECTIONS OF THE PRINCIPAL
STATUTE INVOLVED.  THE COURT'S CONCLUSION, WHILE SUPPORTABLE IF REGARD
BE HAD ONLY FOR THE ACTUAL LANGUAGE OF THE SECTIONS, IS BY NO MEANS
COMPELLED BY THAT LANGUAGE.  ITS CONCLUSION IS REACHED IN UTTER
DISREGARD OF THE RELEVANT LEGISLATIVE HISTORY, AND QUITE WITHOUT
CONSIDERATION OF THE SHARP BREAK THAT IT REPRESENTS WITH THE HISTORICAL
MODUS OPERANDI OF THE GRAND JURY.  IT IS, IN MY OPINION, WRONG. 

THE COURT STATES THE QUESTION TO BE WHETHER WITNESSES THREATENED
WITH CONTEMPT UNDER 28 U.S.C. 1826(A) "ARE ENTITLED TO INVOKE THIS
PROHIBITION OF SEC. 2515 AS A DEFENSE TO CONTEMPT CHARGES BROUGHT
AGAINST THEM FOR REFUSING TO TESTIFY."  ANTE, AT 43.  THE QUESTION AS
THUS FRAMED BY THE COURT HAS BEEN SO ABSTRACTED AND REFINED, AND
DIVORCED FROM THE PARTICULARS OF THESE TWO CASES, AS TO VIRTUALLY
INVITE THE ERRONEOUS ANSWER THAT THE OPINION OF THE COURT GIVES. 

NOR IS IT ACCURATE TO "ASSUME," AS THE COURT DOES, THAT THE
GOVERNMENT'S OVERHEARING OF THESE WITNESSES WAS IN VIOLATION OF THE
APPLICABLE STATUTE.  PETITIONER GELBARD CONTENDED IN THE TRIAL COURT
THAT THE UNITED STATES PLANNED TO USE HIS ELECTRONICALLY OVERHEARD
CONVERSATIONS AS ONE BASIS FOR QUESTIONING HIM BEFORE THE GRAND JURY,
AND SO STATED IN A PRESENTATION TO THAT COURT.  THE GOVERNMENT IN A
REPLY AFFIDAVIT STATED THAT WHATEVER INFORMATION HAD BEEN GATHERED AS A
RESULT OF ELECTRONIC OVERHEARING HAD BEEN OBTAINED FROM WIRETAPS
CONDUCTED PURSUANT TO COURT ORDER AS PROVIDED IN 18 U.S.C. 2518.  /1/
PARNAS, SO FAR AS THIS RECORD SHOWS, MADE NO SIMILAR ALLEGATION IN THE
TRIAL COURT.  THE COURT OF APPEALS IN ITS OPINION DESCRIBED THE
POSITIONTAKEN BY THESE WITNESSES IN THE FOLLOWING LANGUAGE: 

"WHEN CITED FOR CONTEMPT IN THE DISTRICT COURT, EACH ATTACKED THE
CONSTITUTIONAL VALIDITY OF SECTION 2518, AND ADDITIONALLY URGED THAT HE
SHOULD NOT BE REQUIRED TO TESTIFY UNTIL AND UNLESS FIRST ALLOWED TO
INSPECT ALL APPLICATIONS, ORDERS, TAPES AND TRANSCRIPTS RELATING TO
SUCH ELECTRONIC SURVEILLANCE AND AFFORDED AN OPPORTUNITY TO SUPPRESS
THE USE BEFORE THE GRAND JURY OF ANY EVIDENCE SO SECURED . . . . "  443
F.2D 837, 838. 

THUS WHAT WAS PRESENTED TO THE TRIAL COURT IN THIS PROCEEDING UNDER
18 U.S.C. 1826(A) WAS NOT A NEATLY STIPULATED QUESTION OF LAW, BUT A
DEMAND BY THE PETITIONERS THAT THEY BE PERMITTED TO ROAM AT WILL AMONG
THE PROSECUTOR'S RECORDS IN ORDER TO SEE WHETHER THEY MIGHT BE ABLE TO
TURN UP ANY EVIDENCE INDICATING THAT THE GOVERNMENT'S OVERHEARING OF
THEIR CONVERSATIONS HAD BEEN UNAUTHORIZED BY STATUTE.  IN ORDER TO
DETERMINE WHETHER THIS PARTICULAR TYPE OF REMEDY IS OPEN TO THESE
PETITIONERS AT THIS PARTICULAR STAGE OF POTENTIAL CRIMINAL PROCEEDINGS
IT IS NOT ENOUGH TO RECITE, AS THE COURT DOES, THAT 18 U.S.C. 2515
PROHIBITS THE USE OF ILLEGALLY OVERHEARD WIRE COMMUNICATIONS BEFORE
GRAND JURIES AS WELL AS BEFORE OTHER GOVERNMENTAL BODIES.  THIS
PROPOSITION IS NOT DISPUTED.  THE FAR MORE DIFFICULT INQUIRY POSED BY
THESE FACTS IS WHETHER THE GRANTING TO THESE PETITIONERS, AT THIS
PARTICULAR STAGE OF THESE PROCEEDINGS, OF SWEEPING DISCOVERY AS A
PRELUDE TO A FULL HEARING ON THE ISSUE OF ALLEGED UNLAWFUL SURVEILLANCE
CAN FAIRLY BE INFERRED FROM THE ENACTMENT BY CONGRESS OF THE TWO
STATUTES RELIED ON IN THE COURT'S OPINION. 

        I 

IT MAY BE HELPFUL AT THE OUTSET TO TREAT BRIEFLY THE BACKGROUND OF
28 U.S.C. 1826(A).  AS THE COURT NOTES, THIS PROVISION WAS ENACTED AS A
PART OF THE ORGANIZED CRIME CONTROL ACT OF 1970, AND THE SENATE REPORT
STATES THAT IT WAS INTENDED TO CODIFY THE "PRESENT PRACTICE" OF THE
FEDERAL COURTS.  S. REP. NO. 91-617, P. 148 (1969).  THE EXISTING
PRACTICE OF THE FEDERAL COURTS PRIOR TO THE ENACTMENT OF THIS SECTION
WAS BASED ON FED. RULE CRIM. PROC. 42 AND ON 18 U.S.C. 401, BOTH OF
WHICH DEALT GENERALLY WITH THE POWER OF COURTS TO PUNISH FOR CONTEMPT. 
THE ENACTMENT OF SEC. 1826(A) APPEARS TO HAVE RESULTED FROM A DESIRE ON
THE PART OF CONGRESS TO TREAT SEPARATELY FROM THE GENERAL CONTEMPT
POWER OF COURTS THEIR AUTHORITY TO DEAL WITH RECALCITRANT WITNESSES IN
COURT OR GRAND JURY PROCEEDINGS.  SINCE, AS THE SENATE REPORT STATES,
THE ENACTMENT OF THIS PROVISION WAS DESIGNED TO "CODIFY PRESENT
PRACTICE" IT IS INSTRUCTIVE TO NOTE THE TYPES OF CLAIMS LITIGATED IN
CONNECTION WITH GRAND JURY MATTERS UNDER RULE 42 AND 18 U.S.C. 401
PRIOR TO THE ENACTMENT OF THIS NEW SECTION.  SO FAR AS THE REPORTED
DECISIONS OF THIS COURT AND OF THE LOWER FEDERAL COURTS REVEAL, PRIOR
LITIGATION WITH RESPECT TO GRAND JURIES HAS DEALT ALMOST EXCLUSIVELY
WITH QUESTIONS OF PRIVILEGE, AND MOST OF THESE CASES HAVE DEALT WITH
ISSUES OF THE PRIVILEGE AGAINST SELF-INCRIMINATION.  WHILE IT IS PLAIN
THAT THE RESPONDENT IN SUCH PROCEEDINGS WAS ENTITLED TO A HEARING AND
TO ADDUCE EVIDENCE, IT IS EQUALLY PLAIN THAT THE TYPICAL HEARING WAS
SHORT IN DURATION AND LARGELY DEVOTED TO THE ARGUMENTS OF COUNSEL ON AN
AGREED STATEMENT OF FACTS.  /2/ 

SOME OF THE FLAVOR OF THE TYPE OF PROCEEDING CONTEMPLATED UNDER THE
PRIOR PRACTICE IS GLEANED FROM THE FOLLOWING PASSAGE IN THE COURT'S
OPINION IN SHILLITANI V. UNITED STATES, 384 U.S. 364, 370 (1966)
(CITATIONS OMITTED): 

     "THERE CAN BE NO QUESTION THAT COURTS HAVE INHERENT POWER TO

  ENFORCE COMPLIANCE WITH THEIR LAWFUL ORDERS THROUGH CIVIL

CONTEMPT . . . . AND IT IS ESSENTIAL THAT COURTS BE ABLE TO

  COMPEL THE APPEARANCE AND TESTIMONY OF WITNESSES . . . . A GRAND

  JURY SUBPOENA MUST COMMAND THE SAME RESPECT . . . . WHERE

  CONTEMPT CONSISTS OF A REFUSAL TO OBEY A COURT ORDER TO TESTIFY

  AT ANY STAGE IN JUDICIAL PROCEEDINGS, THE WITNESS MAY BE CONFINED

  UNTIL COMPLIANCE . . . . " 

THESE PROCEEDINGS SEEM ALMOST INVARIABLY TO HAVE BEEN SHORT AND
SUMMARY IN NATURE, NOT BECAUSE THE DEFENDANT WAS TO BE DENIED A FAIR
HEARING, BUT BECAUSE THE TYPE OF ISSUE THAT COULD BE RAISED AT SUCH A
PROCEEDING WAS ONE WHICH DID NOT GENERALLY PERMIT EXTENSIVE FACTUAL
DEVELOPMENT.  EVEN WHERE A COURT OF APPEALS REVERSED A CONTEMPT
ADJUDICATION BECAUSE OF THE DISTRICT COURT'S FAILURE TO ALLOW THE
DEFENDANT TO TESTIFY ON HIS OWN BEHALF WITH RESPECT TO MATERIAL ISSUES,
THERE WAS NO HINT OF EITHER THE RIGHT TO, OR THE NECESSITY FOR, ANY
DISCOVERY PROCEEDINGS AGAINST THE GOVERNMENT.  HOOLEY V. UNITED STATES,
209 F.2D 219 (CA1 1954). 

CONGRESS WAS, OF COURSE, FREE TO EXPAND THE SCOPE OF INQUIRY IN
THESE PROCEEDINGS, TO ENLARGE THE ISSUES TO BE TRIED, AND TO ALTER PAST
PRACTICE IN ANY OTHER WAY THAT IT CHOSE CONSISTENTLY WITH THE
CONSTITUTION.  BUT IN VIEW OF THE STATED CONGRESSIONAL INTENT TO
"CODIFY PRESENT PRACTICE" BY THE ENACTMENT OF SEC. 1826(A), WE SHOULD
REQUIRE RATHER STRONG EVIDENCE OF CONGRESSIONAL PURPOSE TO CONCLUDE
THAT CONGRESS INTENDED TO ENGRAFT ON THE TRADITIONAL AND RATHER SUMMARY
CONTEMPT HEARINGS A NEW TYPE OF HEARING IN WHICH A GRAND JURY WITNESS
IS ACCORDED CARTE BLANCHE DISCOVERY OF ALL OF THE GOVERNMENT'S
"APPLICATIONS, ORDERS, TAPES, AND TRANSCRIPTS RELATING TO SUCH
ELECTRONIC SURVEILLANCE" BEFORE HE MAY BE REQUIRED TO TESTIFY.  443
F.2D AT 838. 

        II 

JUST AS CONGRESS WAS NOT WRITING ON A CLEAN SLATE IN THE AREA OF
CONTEMPT HEARINGS, IT WAS NOT WRITING ON A CLEAN SLATE WITH RESPECT TO
THE NATURE OF GRAND JURY PROCEEDINGS.  THESE PETITIONERS WERE CALLED
BEFORE A GRAND JURY THAT HAD BEEN CONVENED TO INVESTIGATE VIOLATIONS OF
FEDERAL LAWS.  WE DEAL, THEREFORE, NOT WITH THE RIGHTS OF A CRIMINAL
DEFENDANT IN THE TRADITIONAL ADVERSARY CONTEXT OF A TRIAL, BUT WITH THE
STATUS OF WITNESSES SUMMONED TO TESTIFY BEFORE A BODY DEVOTED TO
SIFTING EVIDENCE THAT COULD RESULT IN THE PRESENTMENT OF CRIMINAL
CHARGES.  JUST AS THE CASES ARISING UNDER THE ANTECEDENTS OF 28 U.S.C.
1826(A) SUGGEST A LIMITATION ON THE TYPE OF ISSUE WHICH MAY BE
LITIGATED IN SUCH A PROCEEDING, CASES DEALING WITH THE ROLE OF THE
GRAND JURY STRESS THE UNIQUE BREADTH OF ITS SCOPE OF INQUIRY.  IN BLAIR
V. UNITED STATES, 250 U.S. 273, 282 (1919), THIS COURT DEFINED THE
VITAL INVESTIGATORY FUNCTION OF THE GRAND JURY: 

"IT IS A GRAND INQUEST, A BODY WITH POWERS OF INVESTIGATION AND
INQUISITION, THE SCOPE OF WHOSE INQUIRIES IS NOT TO BE LIMITED NARROWLY
BY QUESTIONS OF PROPRIETY OR FORECASTS OF THE PROBABLE RESULT OF THE
INVESTIGATION, OR BY DOUBTS WHETHER ANY PARTICULAR INDIVIDUAL WILL BE
FOUND PROPERLY SUBJECT TO AN ACCUSATION OF CRIME.  AS HAS BEEN SAID
BEFORE, THE IDENTITY OF THE OFFENDER, AND THE PRECISE NATURE OF THE
OFFENSE, IF THERE BE ONE, NORMALLY ARE DEVELOPED AT THE CONCLUSION OF
THE GRAND JURY'S LABORS, NOT AT THE BEGINNING.  . . . " 

ANOTHER PASSAGE FROM BLAIR POINTED OUT THE CITIZEN'S OBLIGATION TO
OBEY THE PROCESS OF THE GRAND JURY: 

"(IT IS CLEARLY RECOGNIZED THAT THE GIVING OF TESTIMONY AND THE
ATTENDANCE UPON COURT OR GRAND JURY IN ORDER TO TESTIFY ARE PUBLIC
DUTIES WHICH EVERY PERSON WITHIN THE JURISDICTION OF THE GOVERNMENT IS
BOUND TO PERFORM UPON BEING PROPERLY SUMMONED."  ID., AT 281. 

IN COSTELLO V. UNITED STATES, 350 U.S. 359, 362 (1956), THE COURT
TRACED THE DEVELOPMENT OF THE ENGLISH GRAND JURY AND CONCLUDED THAT THE
PROBABLE INTENT OF THE FRAMERS OF OUR CONSTITUTION WAS TO PARALLEL THAT
INSTITUTION AS IT HAD EXISTED IN ENGLAND WERE "(GRAND JURORS WERE
SELECTED FROM THE BODY OF THE PEOPLE AND THEIR WORK WAS NOT HAMPERED BY
RIGID PROCEDURAL OR EVIDENTIAL RULES."  350 U.S.,AT 362.  THE COURT IN
COSTELLO WAS AT PAINS TO POINT OUT THE NECESSITY OF LIMITING THE NATURE
OF CHALLENGES TO EVIDENCE ADDUCED BEFORE A GRAND JURY IF THAT BODY WERE
TO RETAIN ITS TRADITIONAL COMPREHENSIVE INVESTIGATIVE AUTHORITY: 

"IF INDICTMENTS WERE TO BE HELD OPEN TO CHALLENGE ON THE GROUND THAT
THERE WAS INADEQUATE OR INCOMPETENT EVIDENCE BEFORE THE GRAND JURY, THE
RESULTING DELAY WOULD BE GREAT INDEED.  THE RESULT OF SUCH A RULE WOULD
BE THAT BEFORE TRIAL ON THE MERITS A DEFENDANT COULD ALWAYS INSIST ON
THE KIND OF PRELIMINARY TRIAL TO DETERMINE THE COMPETENCY AND ADEQUACY
OF THE EVIDENCE BEFORE THE GRAND JURY."  350 U.S.,AT 363. 

WHILE THIS GENERAL STATEMENT APPLIED BY ITS TERMS ONLY TO ONE WHO
WAS ULTIMATELY INDICTED BY THE GRAND JURY, ITS REASONING APPLIES WITH
LIKE FORCE TO ONE WHO SEEKS TO MAKE AN EVIDENTIARY CHALLENGE TO GRAND
JURY PROCEEDINGS ON THE BASIS OF HIS STATUS AS A PROSPECTIVE WITNESS. 
INDEED, TIME-CONSUMING CHALLENGES BY WITNESSES DURING THE COURSE OF A
GRAND JURY INVESTIGATION WOULD BE FAR MORE INIMICAL TO THE FUNCTION OF
THAT BODY THAN WOULD A MOTION TO DISMISS AN INDICTMENT AFTER IT HAD
CONCLUDED ITS DELIBERATIONS. 

IN LAWN V. UNITED STATES, 355 U.S. 339 (1958), THE COURT REFUSED TO
ACCORD TO PETITIONERS THE HEARING, PRIOR TO TRIAL, ON THE ISSUE OF
WHETHER OR NOT A GRAND JURY WHICH INDICTED THEM HAD MADE DIRECT OR
DERIVATIVE USE OF MATERIALS THE USE OF WHICH BY AN EARLIER GRAND JURY
HAD BEEN HELD TO VIOLATE THE PETITIONERS' PRIVILEGE AGAINST SELF
INCRIMINATION.  IN SUPPORTING ITS CONCLUSION THAT THE PETITIONERS
SHOULD NOT EVEN BE ACCORDED A HEARING TO SUSTAIN THESE CONTENTIONS, THE
COURT QUOTED A PASSAGE FROM COSTELLO DESCRIBING THE GRAND JURY AS 
"'(AN) INSTITUTION, IN WHICH LAYMEN CONDUCT THEIR INQUIRIES UNFETTERED
BY TECHNICAL RULES.  NEITHER JUSTICE NOR THE CONCEPT OF A FAIR TRIAL
REQUIRES SUCH A CHANGE.  IN A TRIAL ON THE MERITS, DEFENDANTS ARE
ENTITLED TO A STRICT OBSERVANCE OF ALL THE RULES DESIGNED TO BRING
ABOUT A FAIR VERDICT.  DEFENDANTS ARE NOT ENTITLED, HOWEVER, TO A RULE
WHICH WOULD RESULT IN INTERMINABLE DELAY BUT ADD NOTHING TO THE
ASSURANCE OF A FAIR TRIAL.'"  355 U.S.,AT 350. 

IT SEEMS TO ME TO BE CLEAR BEYOND CAVIL FROM THESE CASES THAT PRIOR
TO THE ENACTMENT OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF
1968, A HEARING SUCH AS THAT WHICH THE COURT AWARDS THESE PETITIONERS
WAS NOT ONLY UNAUTHORIZED BY LAW, BUT COMPLETELY CONTRARY TO THE
INGRAINED PRINCIPLES WHICH HAVE LONG GOVERNED THE FUNCTIONING OF THE
GRAND JURY. 

        III 

WHEN CONGRESS SET OUT TO ENACT THE TWO STATUTES ON WHICH THE COURT
RELIES, IT WAS CERTAINLY NOT WITH ANY ANNOUNCED INTENT TO CHANGE THE
NATURE OF CONTEMPT HEARINGS RELATING TO GRAND JURY PROCEEDINGS, OR TO
CHANGE THE MODUS OPERANDI OF THE GRAND JURY.  INSTEAD, LARGELY IN
RESPONSE TO THE DECISIONS OF THIS COURT IN BERGER V. NEW YORK, 388 U.S.
41 (1967), AND KATZ V. UNITED STATES, 389 U.S. 347 (1967), CONGRESS
UNDERTOOK TO DRAFT COMPREHENSIVE LEGISLATION BOTH AUTHORIZING THE USE
OF EVIDENCE OBTAINED BY ELECTRONIC SURVEILLANCE ON SPECIFIED
CONDITIONS, AND PROHIBITING ITS USE OTHERWISE.  S. REP. NO. 1097, 90TH
CONG., 2D SESS., 66 (1968).  THE ULTIMATE RESULT WAS THE 1968 ACT. 
CRITICAL TO ANALYSIS OF THE ISSUE INVOLVED HERE ARE SECS. 2515 AND
2518(10)(A) OF THAT ACT, WHICH PROVIDE IN PERTINENT PART AS FOLLOWS: 

     "WHENEVER ANY WIRE OR ORAL COMMUNICATION HAS BEEN INTERCEPTED,

  NO PART OF THE CONTENTS OF SUCH COMMUNICATION AND NO EVIDENCE

  DERIVED THEREFROM MAY BE RECEIVED IN EVIDENCE IN ANY TRIAL,

  HEARING, OR OTHER PROCEEDING IN OR BEFORE ANY COURT, GRANT JURY,

  DEPARTMENT, OFFICER, AGENCY, REGULATORY BODY, LEGISLATIVE

  COMMITTEE, OR OTHER AUTHORITY . . . IF THE DISCLOSURE OF THAT

INFORMATION WOULD BE IN VIOLATION OF THIS CHAPTER."  SEC. 2515. 

     "ANY AGGRIEVED PERSON IN ANY TRIAL, HEARING, OR PROCEEDING IN

  OR BEFORE ANY COURT, DEPARTMENT, OFFICER, AGENCY, REGULATORY

  BODY, OR OTHER AUTHORITY OF THE UNITED STATES, A STATE, OR A

  POLITICAL SUBDIVISION THEREOF, MAY MOVE TO SUPPRESS THE CONTENTS

  OF ANY INTERCEPTED WIRE OR ORAL COMMUNICATION, OR EVIDENCE

  DERIVED THEREFROM, ON THE GROUNDS THAT-- 

     "(I) THE COMMUNICATION WAS UNLAWFULLY INTERCEPTED; 

     "(II) THE ORDER OR AUTHORIZATION OR APPROVAL UNDER WHICH IT
WAS

  INTERCEPTED IS INSUFFICIENT ON ITS FACE; OR 

     "(III) THE INTERCEPTION WAS NOT MADE IN CONFORMITY WITH THE

  ORDER OF AUTHORIZATION OR APPROVAL.  . . . "  SEC. 2518(10)(A). 

HERE IS PRESENTED AT THE VERY LEAST AN IMPLIED CONFLICT BETWEEN TWO
SEPARATE SECTIONS OF THE SAME ACT.  SECTION 2515 PROSCRIBES GENERALLY
THE USE OF UNLAWFULLY INTERCEPTED COMMUNICATIONS AS EVIDENCE BEFORE A
NUMBER OF SPECIFIED BODIES, INCLUDING A GRAND JURY.  SECTION
2518(10)(A) PROVIDES FOR THE TYPE OF HEARING THAT PETITIONERS SOUGHT
AND WERE DENIED BY THE DISTRICT COURT; IT PROVIDES SUCH HEARINGS IN
CONNECTION WITH A NUMBER OF SPECIFIED LEGAL PROCEEDINGS, BUT IT
CONSPICUOUSLY OMITS PROCEEDINGS BEFORE A GRAND JURY.  THE METHOD BY
WHICH THE COURT SOLVES THIS DILEMMA IS TO STATE THAT IF PETITIONERS
SUCCEED AFTER THEIR DISCOVERY IN ESTABLISHING THEIR CLAIM OF UNLAWFUL
ELECTRONIC SURVEILLANCE, THEIR QUESTIONING BEFORE THE GRAND JURY ON THE
BASIS OF SUCH ELECTRONIC SURVEILLANCE WOULD VIOLATE SEC. 2515 AS, OF
COURSE, IT PRESUMPTIVELY WOULD.  THEREFORE, SAYS THE COURT, PETITIONERS
MUST BE ENTITLED TO THE DISCOVERY AND FACTUAL HEARING WHICH THEY SEEK,
EVEN THOUGH SEC. 2518(10)(A) RATHER CLEARLY DENIES IT TO THEM BY
IMPLICATION. 

A CONSTRUCTION WHICH I BELIEVE AT LEAST EQUALLY PLAUSIBLE, BASED
SIMPLY ON THE JUXTAPOSITION OF THE VARIOUS SECTIONS OF THE STATUTE, IS
THAT SEC. 2515 CONTAINS A BASIC PROSCRIPTION OF CERTAIN CONDUCT, BUT
DOES NOT ATTEMPT TO SPECIFY REMEDIES OR RIGHTS ARISING FROM A BREACH OF
THAT PROSCRIPTION; THE SPECIFICATION OF REMEDIES IS LEFT TO OTHER
SANCTIONS ARE IMPOSED BY SECS. 2511 AND 2520, WHEREAS SEC. 2518(10)(A)
ACCORDS A RIGHT TO A SUPPRESSION HEARING IN SPECIFIED CASES.  THUS THE
FACT THAT ONE WHO MAY BE THE VICTIM OF ALLEGED UNLAWFUL SURVEILLANCE ON
THE PART OF THE GOVERNMENT IS NOT ACCORDED AN ALDERMAN-TYPE SUPPRESSION
HEARING (ALDERMAN V. UNITED STATES, 394 U.S. 165 (1969)) UNDER THE
PROVISIONS OF SEC. 2518(10)(A) IS NOT LEFT REMEDILESS TO SUCH A DEGREE
THAT IT MUST BE PRESUMED TO HAVE BEEN AN OVERSIGHT; HE IS REMITTED TO
THE INSTITUTION OF CIVIL PROCEEDINGS, OR THE FILING OF A COMPLAINT
LEADING TO THE INSTITUTION OF A CRIMINAL PROSECUTION.  WHILE THE LATTER
TWO REMEDIES MAY NOT BE AS EFFICACIOUS IN MANY SITUATIONS AS A
SUPPRESSION HEARING, THE REMISSION OF AN AGGRIEVED PARTY TO THOSE
REMEDIES CERTAINLY DOES NOT RENDER NUGATORY THE GENERAL PROSCRIPTION
CONTAINED IN SEC. 2515. 

THE OMISSION OF "GRAND JURY" FROM THE DESIGNATED FORUMS IN SEC.
2518(10)(A) IS NOT EXPLAINABLE ON THE BASIS THAT THOUGH THE TESTIMONY
IS SOUGHT TO BE ADDUCED BEFORE A GRAND JURY, THE MOTION TO SUPPRESS
WOULD ACTUALLY BE MADE IN A COURT, WHICH IS ONE OF THE FORUMS
DESIGNATED IN SEC. 2518(10)(A).  THE LANGUAGE "IN ANY TRIAL, HEARING,
OR PROCEEDING IN OR BEFORE" QUITE CLEARLY REFERS TO THE FORUM IN WHICH
THE TESTIMONY IS SOUGHT TO BE ADDUCED.  BUT EVEN MORE SIGNIFICANT IS
THE INCLUSION AMONG THE DESIGNATED FORUMS OF "DEPARTMENT," "OFFICER,"
"AGENCY," AND "REGULATORY BODY."  CONGRESS HAS ALMOST WITHOUT EXCEPTION
PROVIDED THAT ISSUES AS TO THE LEGALITY AND PROPRIETY OF SUBPOENAS
ISSUED BY EITHER AGENCIES OR EXECUTIVE DEPARTMENTS SHOULD BE RESOLVED
BY THE COURTS.  IT HAS ACCOMPLISHED THIS RESULT BY REQUIRING THE AGENCY
TO BRING AN INDEPENDENT JUDICIAL ACTION TO ENFORCE OBEDIENCE TO ITS
SUBPOENA.  SEE, E.G., 15 U.S.C. 79R, PUBLIC UTILITY HOLDING COMPANY ACT
OF 1935; 15 U.S.C. 78U, SECURITIES EXCHANGE ACT OF 1934; 41 U.S.C. 35
45, WALSH-HEALEY ACT; 50 U.S.C. APP. 2155, DEFENSE PRODUCTION ACT OF
1950; 47 U.S.C. 409(F) AND (G), COMMUNICATIONS ACT OF 1934; 46 U.S.C.
1124, MERCHANT MARINE ACT, 1936; 26 U.S.C. 7604, INTERNAL REVENUE CODE
OF 1954; 16 U.S.C. 825FC), ELECTRIC UTILITY COMPANIES ACT; 15 U.S.C.
717MD), NATURAL GAS ACT; 7 U.S.C. 511N, TOBACCO INSPECTION ACT.  THIS
GENERAL MODE OF ENFORCEMENT OF AGENCY INVESTIGATIVE SUBPOENAS WAS
DISCUSSED IN THE CONTEXT OF THE FAIR LABOR STANDARDS ACT IN OKLAHOMA
PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186 (1946). 

THUS, IF CONGRESS IN SEC. 2518 HAD INTENDED TO FOCUS ON THE FORUM IN
WHICH THE HEARING AS TO THE LEGALITY OF THE SUBPOENA IS TO BE
DETERMINED, RATHER THAN THE FORUM IN WHICH THE TESTIMONY IS SOUGHT TO
BE ADDUCED, IT WOULD HAVE OMITTED NOT ONLY GRAND JURIES, BUT
DEPARTMENTS, OFFICERS, AGENCIES, AND REGULATORY BODIES AS WELL FROM THE
COVERAGE OF SEC. 2518(10)(A).  FOR QUESTIONS AS TO THE LEGALITY OF
SUBPOENAS ISSUED BY ALL THESE BODIES ARE RESOLVED IN THE COURTS.  BY
OMITTING ONLY GRAND JURIES IN SEC. 2518, CONGRESS INDICATED THAT IT WAS
DEALING WITH THE FORUM IN WHICH THE TESTIMONY WAS SOUGHT TO BE ADDUCED,
AND THAT THE SUPPRESSION HEARING AUTHORIZED BY THE SECTION WAS NOT TO
BE AVAILABLE TO GRAND JURY WITNESSES. 

IN THE LIGHT OF THESE CONFLICTING IMPLICATIONS FROM THE STATUTORY
LANGUAGE ITSELF, RESORT TO THE LEGISLATIVE HISTORY IS APPROPRIATE. 
PASSAGES FROM THE LEGISLATIVE HISTORY CITED BY THE COURT IN ITS OPINION
DO NOT FOCUS AT ALL ON THE AVAILABILITY OF A SUPPRESSION HEARING IN
GRAND JURY PROCEEDINGS; THEY SIMPLY SPEAK IN GENERAL TERMS OF THE
CONGRESSIONAL INTENT TO PROHIBIT AND PENALIZE UNLAWFUL ELECTRONIC
SURVEILLANCE, OF WHICH INTENT THERE CAN, OF COURSE, BE NO DOUBT.  BUT
SEVERAL PARTS OF THE LEGISLATIVE HISTORY ADDRESS THEMSELVES, FAR MORE
PARTICULARLY THAN ANY RELIED UPON BY THE COURT IN ITS OPINION, TO THE
ACTUAL ISSUE BEFORE US.  THE SENATE REPORT, FOR EXAMPLE, INDICATES AS
PLAINLY AS POSSIBLE THAT THE EXCLUSION OF GRAND JURIES FROM THE
LANGUAGE OF SEC. 2518(10)(A) WAS DELIBERATE: 

"THIS PROVISION (SEC. 2518(10)(A)) MUST BE READ IN CONNECTION WITH
THE REMEDY FOR THE RIGHT CREATED BY SECTION 2515.  BECAUSE NO PERSON IS
A PARTY AS SUCH TO A GRAND JURY PROCEEDING, THE PROVISION DOES NOT
ENVISION THE MAKING OF A MOTION TO SUPPRESS IN THE CONTEXT OF SUCH A
PROCEEDING ITSELF.  NORMALLY, THERE IS NO LIMITATION ON THE CHARACTER
OF EVIDENCE THAT MAY BE PRESENTED TO A GRAND JURY, WHICH IS ENFORCIBLE
BY AN INDIVIDUAL.  (UNITED STATES V. BLUE, 384 U.S. 251 (1966).)  THERE
IS NO INTENT TO CHANGE THIS GENERAL RULE.  IT IS THE INTENT OF THE
PROVISION ONLY THAT WHEN A MOTION TO SUPPRESS IS GRANTED IN ANOTHER
CONTEXT, ITS SCOPE MAY INCLUDE USE IN A FUTURE GRAND JURY PROCEEDING." 
S. REP. NO. 1097, 90TH CONG., 2D SESS., 106 (1968). 

THERE IS AN INTIMATION IN THE OPINION OF THE COURT THAT THE REASON
THIS LANGUAGE WAS USED MAY HAVE BEEN THAT GRAND JURIES DO NOT PASS UPON
MOTIONS TO SUPPRESS, WHILE COURTS DO.  THIS INTIMATION IS NOT ONLY
INCONSISTENT WITH THE LANGUAGE OF THE SECTION ITSELF, AS POINTED OUT,
SUPRA, AT 80, BUT IT ATTRIBUTES TO THE DRAFTERS OF THE REPORT A LOWER
LEVEL OF UNDERSTANDING OF THE SUBJECT MATTER WITH WHICH THEY WERE
DEALING THAN I BELIEVE IS JUSTIFIED.  IT IS ALSO RATHER SQUARELY
CONTRADICTED BY THE STATEMENT THAT THERE IS NO LIMITATION ON THE
CHARACTER OF EVIDENCE THAT MAY BE PRESENTED TO A GRAND JURY "WHICH IS
ENFORCIBLE BY AN INDIVIDUAL."  HAD THE REPORT MEANT TO STRESS THE
PRESUMABLY WELL-KNOWN FACT THAT GRAND JURIES DO NOT THEMSELVES GRANT
MOTIONS TO SUPPRESS, IT WOULD NOT HAVE USED THAT LANGUAGE, NOR WOULD IT
HAVE CITED UNITED STATES V. BLUE, 384 U.S. 251 (1966). 

THE FACT THAT THE REPORT STATES THE REASON FOR THE POLICY ADOPTED IN
TERMS OF THE RIGHTS OF AN "INDIVIDUAL," RATHER THAN IN TERMS OF THE
RIGHTS OF A "DEFENDANT," MAKES THE COURT'S DISCUSSION OF THE DOCTRINE
OF VARIOUS CASES, ANTE, AT 60, OF DOUBTFUL HELP IN CONSTRUING THE
STATUTE.  WHATEVER UNITED STATES V. BLUE, SUPRA, MAY BE SAID TO "HOLD"
AFTER CAREFUL ANALYSIS BY THIS COURT, THE DRAFTERS OF THE SENATE REPORT
UNDOUBTEDLY TOOK IT TO STAND FOR THE PROPOSITION FOR WHICH THEY CITED
IT.  AS STATED BY MR. JUSTICE FRANKFURTER, CONCURRING IN GREEN V.
UNITED STATES, 356 U.S. 165, 189: 

"THE FACT THAT SCHOLARSHIP HAS SHOWN THAT HISTORICAL ASSUMPTIONS
REGARDING THE PROCEDURE FOR PUNISHMENT OF CONTEMPT OF COURT WERE ILL
FOUNDED, HARDLY WIPES OUT A CENTURY AND A HALF OF THE LEGISLATIVE AND
JUDICIAL HISTORY OF FEDERAL LAW BASED ON SUCH ASSUMPTIONS." 

NOT ONLY DOES THE REPORT DEALING WITH SEC. 2518(10)(A) MAKE CLEAR
THAT IT IS TO BE CONSTRUED IN CONNECTION WITH SEC. 2515, WHICH IT
LIMITS, BUT THE SECTION OF THE SAME REPORT DEALING WITH SEC. 2515 RE
EMPHASIZES THIS CONCLUSION.  SPEAKING OF THE LATTER SECTION, THE REPORT
SAYS: 

"THE PROVISION MUST, OF COURSE, BE READ IN LIGHT OF SECTION
2518(10)(A) DISCUSSED BELOW, WHICH DEFINES THE CLASS ENTITLED TO MAKE A
MOTION TO SUPPRESS.  IT LARGELY REFLECTS EXISTING LAW.  . . . NOR
GENERALLY (IS THERE ANY INTENTION) TO PRESS THE SCOPE OF THE
SUPPRESSION RULE BEYOND PRESENT SEARCH AND SEIZURE LAW.  SEE WALDER V.
UNITED STATES, 347 U.S. 62 (1954).  . . . THE PROVISION THUS FORMS AN
INTEGRAL PART OF THE SYSTEM OF LIMITATIONS DESIGNED TO PROTECT
PRIVACY.  ALONG WITH THE CRIMINAL AND CIVIL REMEDIES, IT SHOULD SERVE
TO GUARANTEE THAT THE STANDARDS OF THE NEW CHAPTER WILL SHARPLY CURTAIL
THE UNLAWFUL INTERCEPTION OF WIRE AND ORAL COMMUNICATIONS."  S. REP.
NO. 1097, 90TH CONG., 2D SESS., 96 (1968). 

THE CONCLUSION THAT SEC. 2518(10)(A) IS THE EXCLUSIVE SOURCE OF THE
RIGHT TO MOVE TO SUPPRESS IS FURTHER FORTIFIED BY THE SENATE REPORT'S
COMMENT ON SEC. 2510(11) OF THE ACT, WHICH DEFINES AN "AGGRIEVED
PERSON" AS ONE WHO IS A PARTY TO AN "INTERCEPTED WIRE OR ORAL
COMMUNICATION OR A PERSON AGAINST WHOM THE INTERCEPTION WAS DIRECTED." 
THE SENATE REPORT, P. 91, STATES: 

"THIS DEFINITION DEFINES THE CLASS OF THOSE WHO ARE ENTITLED TO
INVOKE THE SUPPRESSION SANCTION OF SECTION 2515 DISCUSSED BELOW,
THROUGH THE MOTION TO SUPPRESS PROVIDED FOR BY SECTION 2518(10)(A),
ALSO DISCUSSED BELOW.  IT IS INTENDED TO REFLECT EXISTING LAW . . . . "
(CITATIONS OMITTED.) 

FINALLY, SEC. 2518(9) REQUIRES THE GOVERNMENT TO PROVIDE TO EACH
PARTY TO "ANY TRIAL, HEARING OR OTHER PROCEEDING" A COPY OF THE COURT
ORDER AUTHORIZING SURVEILLANCE IF THE GOVERNMENT INTENDS TO USE THE
FRUITS THEREOF.  THE SENATE REPORT, P. 105, STATES: 

"'PROCEEDING' IS INTENDED TO INCLUDE ALL ADVERSARY TYPE HEARINGS.  .
. . IT WOULD NOT INCLUDE A GRAND JURY HEARING.  COMPARE (UNITED STATES
V. BLUE, SUPRA)." 

IF SEC. 2515 OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF
1968 STOOD ALONE WITHOUT ANY INFORMATIVE LEGISLATIVE HISTORY, THE
COURT'S CONCLUSION WITH RESPECT TO THE RIGHTS OF THESE PETITIONERS
WOULD BE PLAINLY CORRECT.  IF THE CONFLICTING IMPLICATIONS FROM TWO
WAS TO STAND BY ITSELF, RATHER THAN TO BE SUPERIMPOSED ON PROCEDURES
SUCH AS CONTEMPT HEARINGS AND INSTITUTIONS SUCH AS THE GRAND JURY, THE
COURT'S CONCLUSION WOULD AT LEAST BE TENABLE.  BUT WHEN THE COURT
CONCLUDES THAT CONGRESS, ALMOST IN A FIT OF ABSENTMINDEDNESS, HAS
DRASTICALLY ENLARGED THE RIGHT OF POTENTIAL GRAND JURY WITNESSES TO
AVOID TESTIFYING, AND WHEN SUCH A CONCLUSION IS BASED UPON ONE OF TWO
AMBIGUOUS IMPLICATIONS FROM THE LANGUAGE OF THE STATUTE, AND IS
CONTRARY TO VIRTUALLY EVERY WHIT OF LEGISLATIVE HISTORY ADDRESSED TO
THE POINT IN ISSUE, I THINK ITS CONCLUSION IS PLAINLY WRONG. 
IV 

THE COURT SEEKS TO BOLSTER ITS REASONING BY RELIANCE UPON 18 U.S.C.
3504(A)(1), WHICH WAS A PART OF THE ORGANIZED CRIME CONTROL ACT OF
1970.  THAT SECTION PROVIDES IN PERTINENT PART AS FOLLOWS: 

     "(A) IN ANY . . . PROCEEDING . . . BEFORE ANY . . . GRAND JURY
. . . 

     "(1) UPON A CLAIM BY A PARTY AGGRIEVED THAT EVIDENCE IS

  INADMISSIBLE BECAUSE IT IS THE PRIMARY PRODUCT OF AN UNLAWFUL ACT

OR BECAUSE IT WAS OBTAINED BY THE EXPLOITATION OF AN UNLAWFUL

  ACT, THE OPPONENT OF THE CLAIM SHALL AFFIRM OR DENY THE

  OCCURRENCE OF THE ALLEGED UNLAWFUL ACT." 

ASSUMING, ARGUENDO, THAT THIS SECTION DOES APPLY TO PETITIONERS IN
NO. 71-110, THE RECORD IN THE DISTRICT COURT AND THE OPINION OF THE
COURT OF APPEALS CLEARLY SHOW THAT ONLY GELBARD MADE WHAT MIGHT BE
CALLED A "CLAIM" WITHIN THE LANGUAGE OF THE SECTION, AND THAT THE
GOVERNMENT IN ITS RESPONSE DID "AFFIRM OR DENY" THE OCCURRENCE OF THE
ALLEGED UNLAWFUL ACT; IN FACT, THE GOVERNMENT DENIED THE OCCURRENCE OF
THE UNLAWFUL ACT.  THIS SHOULD BE SUFFICIENT FOR DISPOSITION OF THE
CASE AS TO THESE PETITIONERS. 

THE COURT, WITHOUT GIVING MUCH GUIDANCE TO THOSE WHO WOULD SEEK TO
FOLLOW THE PATH BY WHICH IT REACHES THE CONCLUSION, CONCLUDES THAT THIS
DEFEND CONTEMPT CHARGES BY INVOKING THE PROHIBITION OF SEC. 2515 IN
VIOLATION OF TITLE III."  IF THE COURT MEANS TO SAY ANY MORE THAN THAT,
UNDER THE CIRCUMSTANCES SPECIFIED IN SEC. 3504, THE GOVERNMENT MUST
AFFIRM OR DENY, I AM AT A LOSS HOW IT EXTRACTS ADDITIONAL REQUIREMENTS
FROM THE LANGUAGE USED BY CONGRESS IN THAT SECTION. 

BUT EVEN IF THE COURT WERE CORRECT IN DECIDING THAT SEC. 3504(A)(1)
REQUIRES MORE THAN IT SAYS OF THE GOVERNMENT, I BELIEVE THE COURT ERRS
IN DECIDING THAT THIS SECTION APPLIES AT ALL TO THESE PETITIONERS. 
TITLE VII AS ENACTED ACTUALLY CONSISTS OF TWO PARTS, A AND B. PART A IS
A SERIES OF FINDINGS BY CONGRESS, READING AS FOLLOWS: 

 "THE CONGRESS FINDS THAT CLAIMS THAT EVIDENCE OFFERED IN

  PROCEEDINGS WAS OBTAINED BY THE EXPLOITATION OF UNLAWFUL ACTS,

  AND IS THEREFORE INADMISSIBLE IN EVIDENCE, (1) OFTEN CANNOT

  RELIABLY BE DETERMINED WHEN SUCH CLAIMS CONCERN EVIDENCE OF

  EVENTS OCCURRING YEARS AFTER THE ALLEGEDLY UNLAWFUL ACT, AND (2)

  WHEN THE ALLEGEDLY UNLAWFUL ACT HAS OCCURRED MORE THAN FIVE YEARS

  PRIOR TO THE EVENT IN QUESTION, THERE IS VIRTUALLY NO LIKELIHOOD

  THAT THE EVIDENCE OFFERED TO PROVE THE EVENT HAS BEEN OBTAINED BY

  THE EXPLOITATION OF THAT ALLEGEDLY UNLAWFUL ACT."  SEC. 701, 84

STAT. 935. 

THE HOUSE REPORT (TO ACCOMPANY S. 30) CONTAINS THIS COMMENT ON PART
A: 

"THIS SECTION CONTAINS A SPECIAL FINDING RELATING, AS DO THE
FOLLOWING SECTIONS OF THE TITLE, TO CERTAIN EVIDENTIARY PROBLEMS
CREATED BY ELECTRONIC SURVEILLANCE CONDUCTED BY THE GOVERNMENT PRIOR TO
THE ENACTMENT OF PUBLIC LAW 90-351 ON JUNE 19, 1968, WHICH PROVIDED
STATUTORY AUTHORITY FOR OBTAINING SURVEILLANCE WARRANTS IN CERTAIN
TYPES OF CRIMINAL INVESTIGATIONS."  H.R. REP. NO. 91-1549, P. 50
(1970). 

THE SAME REPORT, IN ITS INTRODUCTORY DISCUSSION OF TITLE VII,
CONTAINS THE FOLLOWING STATEMENT: 

     "TITLE VII INTENDS TO LIMIT DISCLOSURE OF INFORMATION
ILLEGALLY

  OBTAINED BY THE GOVERNMENT TO DEFENDANTS WHO SEEK TO CHALLENGE

  THE ADMISSIBILITY OF EVIDENCE BECAUSE IT IS EITHER THE PRIMARY OR

  INDIRECT PRODUCTION (SIC) OF SUCH AN ILLEGAL ACT.  THE TITLE ALSO

  PROHIBITS ANY CHALLENGE TO THE ADMISSIBILITY OF EVIDENCE BASED ON

  ITS BEING THE FRUIT OF AN UNLAWFUL GOVERNMENT ACT, IF SUCH ACT

  OCCURRED 5 YEARS OR MORE BEFORE THE EVENT SOUGHT TO BE PROVED. 

  AS AMENDED BY THE COMMITTEE, THE APPLICATION OF TITLE VII IS

  LIMITED TO FEDERAL JUDICIAL AND ADMINISTRATIVE PROCEEDINGS, AND

  TO ELECTRONIC OR MECHANICAL SURVEILLANCE WHICH OCCURRED PRIOR TO

JUNE 19, 1968, THE DATE OF ENACTMENT OF THE FEDERAL WIRETAPPING

  AND ELECTRONIC SURVEILLANCE LAW (CHAPTER 119, TITLE 18, UNITED

  STATES CODE)."  ID., AT 34. 

THE SENATE REPORT, TOO, CASTS SEC. 3504(A)(1) IN QUITE A DIFFERENT
LIGHT FROM THAT IN WHICH THE COURT PUTS IT: 

     "LASTLY, IT SHOULD BE NOTED THAT NOTHING IN SECTION 3504(A)(1)

  IS INTENDED TO CODIFY OR CHANGE PRESENT LAW DEFINING ILLEGAL

  CONDUCT OR PRESCRIBING REQUIREMENTS FOR STANDING TO OBJECT TO

  SUCH CONDUCT OR TO USE OF EVIDENCE GIVEN UNDER AN IMMUNITY

GRANT.  SEE, E.G., GIODANO V. UNITED STATES, 394 U.S. 310 (1969);

  ALDERMAN V. UNITED STATES, 394 U.S. 165 (1969).  NEVERTHELESS,

  SINCE IT REQUIRES A PENDING CLAIM AS A PREDICATE TO DISCLOSURE,

  IT SETS ASIDE THE PRESENT WASTEFUL PRACTICE OF THE DEPARTMENT OF

  JUSTICE IN SEARCHING FILES WITHOUT A MOTION FROM A DEFENDANT.  .
.

  . "  S. REP. NO. 91-617, P. 154 (1969). 

THESE CONCLUSIONS IN THE SENATE REPORT ARE SUPPORTED BY STATEMENTS
OF THE BILL'S MANAGERS IN THE HOUSE DURING THE TIME IT WAS BEING
DEBATED.  CONGRESSMAN POFF EXPLAINED TITLE VII AS FOLLOWS: 

"TITLE VII OF S. 30 . . . WOULD, FIRST, REVERSE THE SUPREME COURT'S
DECISION IN ALDERMAN V. UNITED STATES, 394 U.S. 165 (1969) REQUIRING,
UNDER ITS SUPERVISORY POWER, THE DISCLOSURE OF GOVERNMENT FILES IN
CRIMINAL TRIALS, AND . . . WOULD, SECOND, SET A 5-YEAR 'STATUTE OF
LIMITATIOS' ON INSERTING ISSUES DEALING WITH THE 'FRUIT OF THE
POISONOUS TREE' IN SIMILAR CASES."  116 CONG.REC.  35192. 

CONGRESSMAN CELLER EXPLAINED THE AMENDMENTS INCORPORATING THE PRE
JUNE 19, 1968, TIME LIMITATION INTO SUBSECTIONS (A)(2) AND (A)(3) OF
SEC. 3504 THAT HAD BEEN MADE BY A SUBCOMMITTEE OF THE HOUSE JUDICIARY
COMMITTEE IN THESE WORDS: 

"AS AMENDED BY THE COMMITTEE, THE APPLICATION OF TITLE VII IS
LIMITED TO FEDERAL JUDICIAL AND ADMINISTRATIVE PROCEEDINGS, AND TO
ELECTRONIC OR MECHANICAL SURVEILLANCE WHICH OCCURRED PRIOR TO JUNE 19,
1968, THE DATE OF ENACTMENT OF THE FEDERAL WIRETAPPING AND ELECTRONIC
SURVEILLANCE LAW-- CHAPTER 119, TITLE XVIII, UNITED STATES CODE."  ID.,
AT 35196. 

EVEN MORE SPECIFIC WAS THE EXPLANATION OF THE AMENDMENT MADE BY
CONGRESSMAN POFF ON THE FLOOR OF THE HOUSE AFTER THE TIME PROVISIONS
HAD BEEN INCLUDED: 

     "TITLE VII -- LITIGATION CONCERNING SOURCES OF EVIDENCE 

     "MR. CHAIRMAN, TITLE VII OF THE ORGANIZED CRIME CONTROL ACT IS

DESIGNED TO REGULATE MOTIONS TO SUPPRESS EVIDENCE IN CERTAIN

  LIMITED SITUATIONS WHERE THE MOTION IS BASED UPON UNLAWFUL

  ELECTRONIC EAVESDROPPING OR WIRETAPPING WHICH OCCURRED PRIOR TO

  THE ENACTMENT OF THE FEDERAL ELECTRONIC SURVEILLANCE LAWS ON JUNE

  19, 1968 . . . .

        .        .          .          . 

     "WHERE THERE WAS IN FACT THAT AN UNLAWFUL OVERHEARING PRIOR TO

  JUNE 19, 1968, THE TITLE PROVIDES FOR AN IN CAMERA EXAMINATION OF

  THE GOVERNMENT'S TRANSCRIPTS AND RECORDS TO DETERMINE WHETHER

THEY MAY BE RELEVANT TO THE CLAIM OF INADMISSIBILITY . . . . TO

  THE EXTENT THAT THE COURT IS PERMITTED TO DETERMINE RELEVANCY IN

  AN EX PARTE PROCEEDING, THE TITLE WILL MODIFY THE PROCEDURE

  ESTABLISHED BY THE SUPREME COURT IN ALDERMAN V. UNITED STATES

  (CITATION OMITTED).  . . . 

 "AS I HAVE INDICATED, THE TITLE APPLIES ONLY TO DISCLOSURES

  WHERE THE ELECTRONIC SURVEILLANCE OCCURRED PRIOR TO JUNE 19,

  1968.  IT IS NOT NECESSARY THAT IT APPLY TO DISCLOSURE WHERE AN

  ELECTRONIC SURVEILLANCE OCCURRED AFTER THAT DATE, BECAUSE SUCH

  DISCLOSURE WILL BE MANDATED, NOT BY ALDERMAN, BUT BY SECTION 2518

  OF TITLE 18, U.S.C.  ADDED BY TITLE III OF THE OMNIBUS CRIME

  CONTROL AND SAFE STREETS ACT OF 1968.  SECTION 2518(10)((A))

  PROVIDES A SPECIFIC PROCEDURE FOR MOTIONS TO SUPPRESS THE

  CONTENTS OF ANY INTERCEPTED WIRE OR ORAL COMMUNICATION, OR

  EVIDENCE DERIVED THEREFROM, ON THE GROUNDS THAT THE COMMUNICATION

WAS UNLAWFULLY INTERCEPTED, THAT THE AUTHORIZATION FOR THE

INTERCEPTION WAS INSUFFICIENT, OR THAT THE INTERCEPTION WAS NOT

  MADE IN CONFORMITY WITH THE AUTHORIZATION OBTAINED.  IT PROVIDES,

  INSOFAR AS THE DISCLOSURE OF INTERCEPTED COMMUNICATIONS IS

  CONCERNED, THAT UPON THE FILING OF A MOTION TO SUPPRESS BY AN

  AGGRIEVED PERSON THE TRIAL JUDGE MAY IN HIS DISCRETION MAKE

  AVAILABLE TO SUCH PERSON AND HIS COUNSEL FOR INSPECTION SUCH

  PORTIONS OF AN INTERCEPTED COMMUNICATION, OR EVIDENCE DERIVED

  THEREFROM, AS THE JUDGE DETERMINES TO BE IN THE INTEREST OF

  JUSTICE-- SEE SENATE REPORT NO. 1097, 90TH CONGRESS, 2D SESSION

  106, 1968.  THE PROVISIONS OF THIS TITLE WILL, THEREFORE CONTROL

THE DISCLOSURE OF TRANSCRIPTS OF ELECTRONIC SURVEILLANCES

  CONDUCTED PRIOR TO JUNE 19, 1968.  THEREAFTER, EXISTING STATUTORY

  LAW, NOT ALDERMAN, WILL CONTROL.  CONSEQUENTLY, IN VIEW OF THESE

  AMENDMENTS TO TITLE VII, ITS ENACTMENT, IN CONJUNCTION WITH THE

  PROVISIONS OF TITLE III OF THE 1968 ACT, PROVIDES THE FEDERAL

  GOVERNMENT WITH A COMPREHENSIVE AND INTEGRATED SET OF PROCEDURAL

  RULES GOVERNING SUPPRESSION LITIGATION CONCERNING ELECTRONIC

  SURVEILLANCE."  ID., AT 35293-35294. 

THE WEIGHT OF THE FINDINGS ACTUALLY ENACTED BY CONGRESS IN PART A
AND THE UNIFORM TENOR OF THE LEGISLATIVE HISTORY OUTWEIGH, IN MY
OPINION, THE AMBIGUITY ARISING FROM THE FAILURE TO ACTUALLY INCLUDE A
CUTOFF DATE IN SEC. 3504(A)(1). 

CONTEXT AND BACKGROUND, AS THE COURT SEEKS TO DO, AFFORDS THESE
PETITIONERS NO HELP BECAUSE THE GOVERNMENT HAS COMPLIED WITH ITS
REQUIREMENTS IN THESE CASES.  BUT MORE IMPORTANTLY, THE ENTIRE THRUST
OF THE FINDINGS ACTUALLY ADOPTED BY CONGRESS, AND OF THE REPORTS OF
BOTH HOUSES, MAKES IT AS PLAIN AS HUMANLY POSSIBLE THAT THIS SECTION
WAS INTENDED AS A LIMITATION ON EXISTING RIGHTS OF CRIMINAL DEFENDANTS,
NOT AS AN ENLARGEMENT OF THEM.  CONGRESS, DISPLEASED WITH THE EFFECT OF
THIS COURT'S DECISION IN ALDERMAN, SUPRA, DESIRED TO PUT A STATUTE OF
LIMITATIONS TYPE CUTOFF BEYOND WHICH THE GOVERNMENT WOULD NOT BE
REQUIRED TO GO IN TIME IN ORDER TO DISPROVE TAINT.  EQUALLY DISPLEASED
WITH THE POLICY ADOPTED BY THE GOVERNMENT OF SEARCHING ITS FILES FOR
EVIDENCE OF TAINT EVEN WHEN NONE HAD BEEN ALLEGED BY THE DEFENDANT, IT
SOUGHT TO PUT A STOP TO THAT PRACTICE BY REQUIRING THE GOVERNMENT TO
"AFFIRM OR DENY" ONLY WHERE THERE IS "A CLAIM BY A PARTY AGGRIEVED THAT
EVIDENCE IS INADMISSIBLE."  UNDERSTANDING OF THIS BACKGROUND NOT ONLY
AFFORDS A COMPLETE EXPLANATION OF THE LANGUAGE USED BY CONGRESS IN THIS
FALLEN IN CONSTRUING IT.  THE COURT HAS AT LEAST FIGURATIVELY STOOD ON
ITS HEAD BOTH THE LANGUAGE AND THE LEGISLATIVE HISTORY OF THIS SECTION
IN ORDER TO CONCLUDE THAT IT WAS INTENDED TO EXPAND THE RIGHTS OF
CRIMINAL DEFENDANTS. 

        V 

NEITHER THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968 NOR
THE ORGANIZED CRIME CONTROL ACT OF 1970, WHEN CONSTRUED IN ACCORDANCE
WITH THE CANONS OF STATUTORY CONSTRUCTION TRADITIONALLY FOLLOWED BY
THIS COURT, SUPPORTS THE EXPANSIVE AND NOVEL CLAIMS ASSERTED BY THESE
PETITIONERS.  THE COURT HAVING REACHED A CONTRARY CONCLUSION, I
RESPECTFULLY DISSENT. 

/1/  IN THE CASE OF RESPONDENTS EGAN AND WALSH, THE GOVERNMENT IN
THE DISTRICT COURT DID NOT STATE WHETHER IT HAD ENGAGED IN ELECTRONIC
SURVEILLANCE.  IN THIS COURT, HOWEVER, THE GOVERNMENT REPRESENTED THAT
RESPONDENTS EGAN AND WALSH HAD NOT BEEN SUBJECTED TO ELECTRONIC
SURVEILLANCE.  IN LIGHT OF THIS DEVELOPMENT, I WOULD REMAND THEIR CASE
TO THE DISTRICT COURT IN ORDER TO GIVE THE RESPONDENTS ANOTHER
OPPORTUNITY TO TESTIFY.  FOR THIS REASON, REFERENCES TO "PETITIONERS"
THROUGHOUT THIS OPINION ARE MEANT TO BE TO ONLY PETITIONERS GELBARD AND
PARNAS. 

/2/  SEE, E.G., BLAU V. UNITED STATES, 340 U.S. 159 (1950); ROGERS
V. UNITED STATES, 340 U.S. 367 (1951); CURCIO V. UNITED STATES, 354
U.S. 118 (1957); UNITED STATES V. GEORGE, 444 F.2D 310 (CA6 1971); IN
RE OCTOBER 1969 GRAND JURY, 435 F.2D 350 (CA7 1970). 

MICHAEL E. TIGAR ARGUED THE CAUSE FOR PETITIONERS IN NO. 71-110. 
WITH HIM ON THE BRIEF WAS BURTON MARKS.  MR. MARKS FILED A BRIEF FOR
PETITIONER GELBARD IN NO. 71-110. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES IN BOTH CASES.  ON THE BRIEF IN NO. 71-110 WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL PETERSEN, ALLAN A. TUTTLE,
AND BEATRICE ROSENBERG.  ON THE BRIEF IN NO. 71-263 WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MARDIAN, MR. TUTLE, AND
ROBERT L. KEUCH. 

JACK J. LEVINE ARGUED THE CAUSE PRO HAC VICE FOR RESPONDENT EGAN IN
NO. 71-263.  WITH HIM ON THE BRIEF WAS CHARLES R. NESSON.  BERNARD L.
SEGAL FILED A BRIEF FOR RESPONDENT WALSH IN NO. 71-263. 

MELVIN L. WULF, SANFORD JAY ROSEN, THOMAS HARVEY, AND LAURENCE R.
SPERBER FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION AS AMICUS
CURIAE URGING REVERSAL IN NO. 71-110 AND AFFIRMANCE IN NO. 71-263. 
FRANK G. CARRINGTON, JR., AND ALAN S. GANZ FILED A BRIEF FOR AMERICANS
FOR EFFECTIVE LAW ENFORCEMENT, INC., AS AMICUS CURIAE URGING REVERSAL
IN NO. 71-263. 
..END :














POLICE DEPARTMENT OF CHICAGO V. MOSLEY, 408 U.S. 92 


       POLICE DEPARTMENT OF THE CITY OF CHICAGO ET AL. V. MOSLEY

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 70-87.  ARGUED JANUARY 19, 1972-- DECIDED JUNE 26,
1972 


CITY ORDINANCE PROHIBITING ALL PICKETING WITHIN 150 FEET OF A SCHOOL,
EXCEPT PEACEFUL PICKETING OF ANY SCHOOL INVOLVED IN A LABOR DISPUTE,
FOUND BY THE COURT OF APPEALS TO BE UNCONSTITUTIONAL BECAUSE OVERBROAD,
HELD VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT SINCE IT MAKES AN IMPERMISSIBLE DISTINCTION BETWEEN PEACEFUL
LABOR PICKETING AND OTHER PEACEFUL PICKETING.  PP. 94-102. 

432 F.2D 1256, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, BRENNAN, STEWART, WHITE, AND POWELL, JJ., JOINED. 
BURGER, C. J., FILED A CONCURRING OPINION, POST, P. 102.  BLACKMUN AND
REHNQUIST, JJ., CONCURRED IN THE RESULT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

AT ISSUE IN THIS CASE IS THE CONSTITUTIONALITY OF THE FOLLOWING
CHICAGO ORDINANCE: 

     "A PERSON COMMITS DISORDERLY CONDUCT WHEN HE KNOWINGLY:

        .          .          .          . 

     "(I) PICKETS OR DEMONSTRATES ON A PUBLIC WAY WITHIN 150 FEET
OF

  ANY PRIMARY OR SECONDARY SCHOOL BUILDING WHILE THE SCHOOL IS IN

  SESSION AND ONE-HALF HOUR BEFORE THE SCHOOL IS IN SESSION AND

  ONE-HALF HOUR AFTER THE SCHOOL SESSION HAS BEEN CONCLUDED,

  PROVIDED THAT THIS SUBSECTION DOES NOT PROHIBIT THE PEACEFUL

  PICKETING OF ANY SCHOOL INVOLVED IN A LABOR DISPUTE ; . . . "

  MUNICIPAL CODE, C. 193-1(I). 

THE SUIT WAS BROUGHT BY EARL MOSLEY, A FEDERAL POSTAL EMPLOYEE, WHO FOR
SEVEN MONTHS PRIOR TO THE ENACTMENT OF THE ORDINANCE HAD FREQUENTLY
PICKETED JONES COMMERCIAL HIGH SCHOOL IN CHICAGO.  DURING SCHOOL HOURS
AND USUALLY BY HIMSELF, MOSLEY WOULD WALK THE PUBLIC SIDEWALK ADJOINING
THE SCHOOL, CARRYING A SIGN THAT READ:  "JONES HIGH SCHOOL PRACTICES
BLACK DISCRIMINATION.  JONES HIGH SCHOOL HAS A BLACK QUOTA."  HIS
LONELY CRUSADE WAS ALWAYS PEACEFUL, ORDERLY, AND QUIET, AND WAS
CONCEDED TO BE SO BY THE CITY OF CHICAGO. 

ON MARCH 26, 1968, CHAPTER 193-1(I) WAS PASSED, TO BECOME EFFECTIVE
ON APRIL 5.  SEEING A NEWSPAPER ANNOUNCEMENT OF THE NEW ORDINANCE,
MOSLEY CONTACTED THE CHICAGO POLICE DEPARTMENT TO FIND OUT HOW THE
ORDINANCE WOULD AFFECT HIM; HE WAS TOLD THAT, IF HIS PICKETING
CONTINUED, HE WOULD BE ARRESTED.  ON APRIL 4, THE DAY BEFORE THE
ORDINANCE BECAME EFFECTIVE, MOSLEY ENDED HIS PICKETING NEXT TO THE
SCHOOL.  /1/  THEREAFTER, HE BROUGHT THIS ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, SEEKING
DECLARATORY AND INJUNCTIVE RELIEF, PURSUANT TO 28 U.S.C. 2201 AND 42
U.S.C. 1983.  HE ALLEGED A VIOLATION OF CONSTITUTIONAL RIGHTS IN THAT
(1) THE STATUTE PUNISHED ACTIVITY PROTECTED BY THE FIRST AMENDMENT; AND
(2) BY EXEMPTING ONLY PEACEFUL LABOR PICKETING FROM ITS GENERAL
PROHIBITION AGAINST PICKETING, THE STATUTE DENIED HIM "EQUAL PROTECTION
OF THE LAW IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS . . . .
" 

AFTER A HEARING, THE DISTRICT COURT GRANTED A DIRECTED VERDICT
DISMISSING THE COMPLAINT.  THE SEVENTH CIRCUIT REVERSED, HOLDING THAT
BECAUSE THE ORDINANCE PROHIBITED EVEN PEACEFUL PICKETING NEXT TO A
SCHOOL, IT WAS OVERBROAD AND THEREFORE "PATENTLY UNCONSTITUTIONAL ON
ITS FACE."  432 F.2D 1256, 1259 (1970).  WE GRANTED CERTIORARI, 404
U.S. 821 (1971), TO CONSIDER THIS CASE ALONG WITH GRAYNED V. CITY OF
ROCKFORD, POST, P. 104, IN WHICH AN ALMOST IDENTICAL ORDINANCE WAS
UPHELD BY THE ILLINOIS SUPREME COURT, 46 ILL. 2D 492, 496, 263 N.E.2D
866, 868 (1970).  WE AFFIRM THE JUDGMENT OF THE SEVENTH CIRCUIT,
ALTHOUGH WE DECIDE THIS CASE ON THE GROUND NOT REACHED BY THAT COURT. 
WE HOLD THAT THAT ORDINANCE IS UNCONSTITUTIONAL BECAUSE IT MAKES AN
IMPERMISSIBLE DISTINCTION BETWEEN LABOR PICKETING AND OTHER PEACEFUL
PICKETING. 

        I 

THE CITY OF CHICAGO EXEMPTS PEACEFUL LABOR PICKETING FROM ITS
GENERAL PROHIBITION ON PICKETING NEXT TO A SCHOOL.  /2/  THE QUESTION
WE CONSIDER HERE IS WHETHER THIS SELECTIVE EXCLUSION FROM A PUBLIC
PLACE IS PERMITTED.  OUR ANSWER IS "NO." 

BECAUSE CHICAGO TREATS SOME PICKETING DIFFERENTLY FROM OTHERS, WE
ANALYZE THIS ORDINANCE IN TERMS OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  OF COURSE, THE EQUAL PROTECTION CLAIM IN THIS
CASE IS CLOSELY INTERTWINED WITH FIRST AMENDMENT INTERESTS; /3/  THE
CHICAGO ORDINANCE AFFECTS PICKETING, WHICH IS EXPRESSIVE CONDUCT;
MOREOVER, IT DOES SO BY CLASSIFICATIONS FORMULATED IN TERMS OF THE
SUBJECT OF THE PICKETING.  AS IN ALL EQUAL PROTECTION CASES, HOWEVER,
THE CRUCIAL QUESTION IS WHETHER THERE IS AN APPROPRIATE GOVERNMENTAL
INTEREST SUITABLY FURTHERED BY THE DIFFERENTIAL TREATMENT.  SEE REED V.
REED, 404 U.S. 71, 75-77 (1971); WEBER V. AETNA CASUALTY CO., 406 U.S.
164 (1972); DUNN V. BLUMSTEIN, 405 U.S. 330, 335 (1972). 

THE CENTRAL PROBLEM WITH CHICAGO'S ORDINANCE IS THAT IT DESCRIBES
PERMISSIBLE PICKETING IN TERMS OF ITS SUBJECT MATTER.  PEACEFUL
PICKETING ON THE SUBJECT OF A SCHOOL'S LABOR-MANAGEMENT DISPUTE IS
PERMITTED, BUT ALL OTHER PEACEFUL PICKETING IS PROHIBITED.  THE
OPERATIVE DISTINCTION IS THE MESSAGE ON A PICKET SIGN.  BUT, ABOVE ALL
ELSE, THE FIRST AMENDMENT MEANS THAT GOVERNMENT HAS NO POWER TO
RESTRICT EXPRESSION BECAUSE OF ITS MESSAGE, ITS IDEAS, ITS SUBJECT
MATTER, OR ITS CONTENT.  COHEN V. CALIFORNIA, 403 U.S. 15, 24 (1971);
STREET V. NEW YORK, 394 U.S. 576 (1969); NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254, 269-270 (1964), AND CASES CITED; NAACP V.
BUTTON, 371 U.S. 415, 445 (1963); WOOD V. GEORGIA, 370 U.S. 375, 388
389 (1962); TERMINIELLO V. CHICAGO, 337 U.S. 1, 4 (1949); DE JONGE V.
OREGON, 299 U.S. 353, 365 (1937).  TO PERMIT THE CONTINUED BUILDING OF
OUR POLITICS AND CULTURE, AND TO ASSURE SELF-FULFILLMENT FOR EACH
INDIVIDUAL, OUR PEOPLE ARE GUARANTEED THE RIGHT TO EXPRESS ANY THOUGHT,
FREE FROM GOVERNMENT CENSORSHIP.  THE ESSENCE OF THIS FORBIDDEN
CENSORSHIP IS CONTENT CONTROL.  ANY RESTRICTION ON EXPRESSIVE ACTIVITY
BECAUSE OF ITS CONTENT WOULD COMPLETELY UNDERCUT THE "PROFOUND NATIONAL
COMMITMENT TO THE PRINCIPLE THAT DEBATE ON PUBLIC ISSUES SHOULD BE
UNINHIBITED, ROBUST, AND WIDE-OPEN."  NEW YORK TIMES CO. V. SULLIVAN,
SUPRA, AT 270. 

NECESSARILY, THEN, UNDER THE EQUAL PROTECTION CLAUSE, NOT TO MENTION
THE FIRST AMENDMENT ITSELF, GOVERNMENT MAY NOT GRANT THE USE OF A FORUM
TO PEOPLE WHOSE VIEWS IT FINDS ACCEPTABLE, BUT DENY USE TO THOSE
WISHING TO EXPRESS LESS FAVORED OR MORE CONTROVERSIAL VIEWS.  AND IT
MAY NOT SELECT WHICH ISSUES ARE WORTH DISCUSSING OR DEBATING IN PUBLIC
FACILITIES.  THERE IS AN "EQUALITY OF STATUS IN THE FIELD OF IDEAS,"
/4/  AND GOVERNMENT MUST AFFORD ALL POINTS OF VIEW AN EQUAL OPPORTUNITY
TO BE HEARD.  ONCE A FORUM IS OPENED UP TO ASSEMBLY OR SPEAKING BY SOME
GROUPS, GOVERNMENT MAY NOT PROHIBIT OTHERS FROM ASSEMBLING OR SPEAKING
ON THE BASIS OF WHAT THEY INTEND TO SAY.  SELECTIVE EXCLUSIONS FROM A
PUBLIC FORUM MAY NOT BE BASED ON CONTENT ALONE, AND MAY NOT BE
JUSTIFIED BY REFERENCE TO CONTENT ALONE. 

GUIDED BY THESE PRINCIPLES, WE HAVE FREQUENTLY CONDEMNED SUCH
DISCRIMINATION AMONG DIFFERENT USERS OF THE SAME MEDIUM FOR
EXPRESSION.  IN NIEMOTKO V. MARYLAND, 340 U.S. 268 (1951), A GROUP OF
JEHOVAH'S WITNESSES WERE DENIED A PERMIT TO USE A CITY PARK FOR BIBLE
TALKS, ALTHOUGH OTHER POLITICAL AND RELIGIOUS GROUPS HAD BEEN ALLOWED
TO PUT THE PARK TO ANALOGOUS USES.  CONCLUDING THAT THE PERMIT WAS
DENIED BECAUSE OF THE CITY'S "DISLIKE FOR OR DISAGREEMENT WITH THE
WITNESSES OR THEIR VIEWS," THIS COURT HELD THAT THE PERMIT REFUSAL
VIOLATED "(THE RIGHT TO EQUAL PROTECTION OF THE LAWS, IN THE EXERCISE
OF THOSE FREEDOMS OF SPEECH AND RELIGION PROTECTED BY THE FIRST AND
FOURTEENTH AMENDMENTS."  ID., AT 272.  THE COURT FOLLOWED NIEMOTKO IN
FOWLER V. RHODE ISLAND, 345 U.S. 67 (1953), WHERE AGAIN THE JEHOVAH'S
WITNESSES WERE REFUSED PERMISSION TO CONDUCT RELIGIOUS SERVICES IN A
PARK, ALTHOUGH OTHER RELIGIOUS GROUPS HAD BEEN PERMITTED TO DO SO.
SIMILARLY, BECAUSE OF THEIR POTENTIAL USE AS INSTRUMENTS FOR
SELECTIVELY SUPPRESSING SOME POINTS OF VIEW, THIS COURT HAS CONDEMNED
LICENSING SCHEMES THAT LODGE BROAD DISCRETION IN A PUBLIC OFFICIAL TO
PERMIT SPEECH-RELATED ACTIVITY, SEE, E.G., SHUTTLESWORTH V. BIRMINGHAM,
394 U.S. 147 (1969); COX V. LOUISIANA, 379 U.S. 536, 555-558 (1965);
STAUB V. CITY OF BAXLEY, 355 U.S. 313, 321-325 (1958), AND CASES CITED;
SAIA V. NEW YORK, 334 U.S. 558, 560-562 (1948).  /5/ 

THE LATE MR. JUSTICE BLACK, WHO THOUGHT THAT PICKETING WAS NOT ONLY
A METHOD OF EXPRESSING AN IDEA BUT ALSO CONDUCT SUBJECT TO BROAD STATE
REGULATION, NEVERTHELESS RECOGNIZED THE DEFICIENCIES OF LAWS LIKE
CHICAGO'S ORDINANCE.  THIS WAS THE THRUST OF HIS OPINION CONCURRING IN
COX V. LOUISIANA, 379 U.S. 536 (1965): 

"(BY SPECIFICALLY PERMITTING PICKETING FOR THE PUBLICATION OF LABOR
UNION VIEWS (BUT PROHIBITING OTHER SORTS OF PICKETING), LOUISIANA IS
ATTEMPTING TO PICK AND CHOOSE AMONG THE VIEWS IT IS WILLING TO HAVE
DISCUSSED ON ITS STREETS.  IT THUS IS TRYING TO PRESCRIBE BY LAW WHAT
MATTERS OF PUBLIC INTEREST PEOPLE WHOM IT ALLOWS TO ASSEMBLE ON ITS
STREETS MAY AND MAY NOT DISCUSS.  THIS SEEMS TO ME TO BE CENSORSHIP IN
A MOST ODIOUS FORM, UNCONSTITUTIONAL UNDER THE FIRST AND FOURTEENTH
AMENDMENTS.  AND TO DENY THIS APPELLANT AND HIS GROUP USE OF THE
STREETS BECAUSE OF THEIR VIEWS AGAINST RACIAL DISCRIMINATION, WHILE
ALLOWING OTHER GROUPS TO USE THE STREETS TO VOICE OPINIONS ON OTHER
SUBJECTS, ALSO AMOUNTS, I THINK, TO AN INVIDIOUS DISCRIMINATION
FORBIDDEN BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT." 
ID., AT 581.  WE ACCEPT MR. JUSTICE BLACK'S QUOTED VIEWS.  CF. NLRB V.
FRUIT & VEGETABLE PACKERS, 377 U.S. 58, 76 (1964) (BLACK, J.,
CONCURRING). 

 II 

THIS IS NOT TO SAY THAT ALL PICKETING MUST ALWAYS BE ALLOWED.  WE
HAVE CONTINUALLY RECOGNIZED THAT REASONABLE "TIME, PLACE AND MANNER"
REGULATIONS OF PICKETING MAY BE NECESSARY TO FURTHER SIGNIFICANT
GOVERNMENTAL INTERESTS.  COX V. NEW HAMPSHIRE, 312 U.S. 569, 575-576
(1941); POULOS V. NEW HAMPSHIRE, 345 U.S. 395, 398 (1953); COX V.
LOUISIANA, 379 U.S., AT 554-555; COX V. LOUISIANA, 379 U.S. 559 (1965);
ADDERLEY V. FLORIDA, 385 U.S. 39, 46-48 (1966).  SIMILARLY, UNDER AN
EQUAL PROTECTION ANALYSIS, THERE MAY BE SUFFICIENT REGULATORY INTERESTS
JUSTIFYING SELECTIVE EXCLUSIONS OR DISTINCTIONS AMONG PICKETS. 
CONFLICTING DEMANDS ON THE SAME PLACE MAY COMPEL THE STATE TO MAKE
CHOICES AMONG POTENTIAL USERS AND USES.  AND THE STATE MAY HAVE A
LEGITIMATE INTEREST IN PROHIBITING SOME PICKETING TO PROTECT PUBLIC
ORDER.  BUT THESE JUSTIFICATIONS FOR SELECTIVE EXCLUSIONS FROM A PUBLIC
FORUM MUST BE CAREFULLY SCRUTINIZED.  BECAUSE PICKETING PLAINLY
INVOLVES EXPRESSIVE CONDUCT WITHIN THE PROTECTION OF THE FIRST
AMENDMENT, SEE, E.G., THORNHILL V. ALABAMA, 310 U.S. 88 (1940);
TEAMSTERS UNION V. NEWELL, 356 U.S. 341 (1958); GARNER V. LOUISIANA,
368 U.S. 157, 185 (1961) (HARLAN, J., CONCURRING IN JUDGMENT); EDWARDS
V. SOUTH CAROLINA, 372 U.S. 229 (1963); COX V. LOUISIANA, SUPRA, AT
546; FOOD EMPLOYEES V. LOGAN VALLEY PLAZA, 391 U.S. 308, 314-315
(1968); ID., AT 337 (WHITE, J., DISSENTING); GREGORY V. CHICAGO, 394
U.S. 111, 112 (1969); SHUTTLESWORTH V. BIRMINGHAM, 394 U.S.,AT 155,
DISCRIMINATIONS AMONG PICKETS MUST BE TAILORED TO SERVE A SUBSTANTIAL
GOVERNMENTAL INTEREST.  CF. WILLIAMS V. RHODES, 393 U.S. 23 (1968). 

        III 

IN THIS CASE, THE ORDINANCE ITSELF DESCRIBES IMPERMISSIBLE PICKETING
NOT IN TERMS OF TIME, PLACE, AND MANNER, BUT IN TERMS OF SUBJECT
MATTER.  THE REGULATION "THUS SLIPS) FROM THE NEUTRALITY OF TIME,
PLACE, AND CIRCUMSTANCE INTO A CONCERN ABOUT CONTENT."  /6/  THIS IS
NEVER PERMITTED.  IN SPITE OF THIS, CHICAGO URGES THAT THE ORDINANCE IS
NOT IMPROPER CONTENT CENSORSHIP, BUT RATHER A DEVICE FOR PREVENTING
DISRUPTION OF THE SCHOOL.  CITIES CERTAINLY HAVE A SUBSTANTIAL INTEREST
IN STOPPING PICKETING WHICH DISRUPTS A SCHOOL.  "THE CRUCIAL QUESTION,
HOWEVER, IS WHETHER (CHICAGO'S ORDINANCE) ADVANCES THAT OBJECTIVE IN A
MANNER CONSISTENT WITH THE COMMAND OF THE EQUAL PROTECTION CLAUSE." 
REED V. REED, 404 U.S.,AT 76.  IT DOES NOT. 

ALTHOUGH PREVENTING SCHOOL DISRUPTION IS A CITY'S LEGITIMATE
CONCERN, CHICAGO ITSELF HAS DETERMINED THAT PEACEFUL LABOR PICKETING
DURING SCHOOL HOURS IS NOT AN UNDUE INTERFERENCE WITH SCHOOL. 
THEREFORE, UNDER THE EQUAL PROTECTION CLAUSE, CHICAGO MAY NOT MAINTAIN
THAT OTHER PICKETING DISRUPTS THE SCHOOL UNLESS THAT PICKETING IS
CLEARLY MORE DISRUPTIVE THAN THE PICKETING CHICAGO ALREADY PERMITS. 
CF. TINKER V. DES MOINES SCHOOL DISTRICT, 393 U.S. 503, 511 (1969);
WIRTA V. ALAMEDA-CONTRA COSTA TRANSIT DISTRICT, 68 CAL.2D 51, 434 P.2D
982 (1967).  IF PEACEFUL LABOR PICKETING IS PERMITTED, THERE IS NO
JUSTIFICATION FOR PROHIBITING ALL NONLABOR PICKETING, BOTH PEACEFUL AND
NONPEACEFUL.  "PEACEFUL" NONLABOR PICKETING, HOWEVER THE TERM
"PEACEFUL" IS DEFINED, IS OBVIOUSLY NO MORE DISRUPTIVE THAN "PEACEFUL"
LABOR PICKETING.  BUT CHICAGO'S ORDINANCE PERMITS THE LATTER AND
PROHIBITS THE FORMER.  SUCH UNEQUAL TREATMENT IS EXACTLY WHAT WAS
CONDEMNED IN NIEMOTKO V. MARYLAND, 340 U.S.,AT 272-273. 

SIMILARLY, WE REJECT THE CITY'S ARGUMENT THAT, ALTHOUGH IT PERMITS
PEACEFUL LABOR PICKETING, IT MAY PROHIBIT ALL NONLABOR PICKETING
BECAUSE, AS A CLASS, NONLABOR PICKETING IS MORE PRONE TO PRODUCE
VIOLENCE THAN LABOR PICKETING.  /7/  PREDICTIONS ABOUT IMMINENT
DISRUPTION FROM PICKETING INVOLVE JUDGMENTS APPROPRIATELY MADE ON AN
INDIVIDUALIZED BASIS, NOT BY MEANS OF BROAD CLASSIFICATIONS, ESPECIALLY
THOSE BASED ON SUBJECT MATTER.  FREEDOM OF EXPRESSION, AND ITS
INTERSECTION WITH THE GUARANTEE OF EQUAL PROTECTION, WOULD REST ON A
SOFT FOUNDATION INDEED IF GOVERNMENT COULD DISTINGUISH AMONG PICKETERS
ON SUCH A WHOLESALE AND CATEGORICAL BASIS.  "(IN OUR SYSTEM,
UNDIFFERENTIATED FEAR OR APPREHENSION OF DISTURBANCE IS NOT ENOUGH TO
OVERCOME THE RIGHT TO FREEDOM OF EXPRESSION."  TINKER V. DES MOINES
SCHOOL DISTRICT, 393 U.S.,AT 508.  SOME LABOR PICKETING IS PEACEFUL,
SOME DISORDERLY; THE SAME IS TRUE OF PICKETING ON OTHER THEMES.  NO
LABOR PICKETING COULD BE MORE PEACEFUL OR LESS PRONE TO VIOLENCE THAN
MOSLEY'S SOLITARY VIGIL.  IN SEEKING TO RESTRICT NONLABOR PICKETING
THAT IS CLEARLY MORE DISRUPTIVE THAN PEACEFUL LABOR PICKETING, CHICAGO
MAY NOT PROHIBIT ALL NONLABOR PICKETING AT THE SCHOOL FORUM.     THE
EQUAL PROTECTION CLAUSE REQUIRES THAT STATUTES AFFECTING FIRST
AMENDMENT INTERESTS BE NARROWLY TAILORED TO THEIR LEGITIMATE
OBJECTIVES.  WILLIAMS V. RHODES, 393 U.S. 23 (1968); SEE GENERALLY DUNN
V. BLUMSTEIN, 405 U.S.,AT 342-343.  /8/  CHICAGO MAY NOT VINDICATE ITS
INTEREST IN PREVENTING DISRUPTION BY THE WHOLESALE EXCLUSION OF
PICKETING ON ALL BUT ONE PREFERRED SUBJECT.  GIVEN WHAT CHICAGO
TOLERATES FROM LABOR PICKETING, THE EXCESSES OF SOME NONLABOR PICKETING
MAY NOT BE CONTROLLED BY A BROAD ORDINANCE PROHIBITING BOTH PEACEFUL
AND VIOLENT PICKETING.  SUCH EXCESSES "CAN BE CONTROLLED BY NARROWLY
DRAWN STATUTES," SAIA V. NEW YORK, 334 U.S.,AT 562, FOCUSING ON THE
ABUSES AND DEALING EVENHANDEDLY WITH PICKETING REGARDLESS OF SUBJECT
MATTER.  CHICAGO'S ORDINANCE IMPOSES A SELECTIVE RESTRICTION ON
EXPRESSIVE CONDUCT FAR "GREATER THAN IS ESSENTIAL TO THE FURTHERANCE OF
(A SUBSTANTIAL GOVERNMENTAL) INTEREST."  UNITED STATES V. O'BRIEN, 391
U.S. 367, 377 (1968).  FAR FROM BEING TAILORED TO A SUBSTANTIAL
GOVERNMENTAL INTEREST, THE DISCRIMINATION AMONG PICKETS IS BASED ON THE
CONTENT OF THEIR EXPRESSION.  THEREFORE, UNDER THE EQUAL PROTECTION
CLAUSE, IT MAY NOT STAND.  /9/ 

THE JUDGMENT IS

              AFFIRMED. 

/1/  OCCASIONALLY, THEREAFTER, MOSLEY WOULD PICKET ACROSS THE
STREET, OUTSIDE THE 150-FOOT ZONE.  AT THE HEARING BELOW, MOSLEY
TESTIFIED THAT "WHEN I WAS ACROSS THE STREET FROM THE SCHOOL, 150 FEET
AWAY, YOU CANNOT HARDLY SEE ME.  THE QUESTION THAT ALL OF THE PEOPLE
ASKED ME WAS, 'WHERE IS THE SCHOOL LOCATED?'  THEY DON'T EVEN SEE THE
SCHOOL ACROSS THE STREET, YOU KNOW.  SO, WHAT IT DOES, IT TAKES AWAY A
CERTAIN AMOUNT OF THE EFFECTIVENESS . . . (WHEN I AM ACROSS THE STREET,
I AM SORT OF OUT OF THE PICTURE . . . . "  APP. 24-25. 

/2/  BY ITS TERMS, THE STATUTE EXEMPTS "THE PEACEFUL PICKETING OF
ANY SCHOOL INVOLVED IN A LABOR DISPUTE."  IT IS UNDISPUTED THAT THIS
EXEMPTION APPLIES ONLY TO LABOR PICKETING OF A SCHOOL INVOLVED IN A
LABOR DISPUTE. 

/3/  FOR DISCUSSIONS OF THE FIRST AMENDMENT-EQUAL PROTECTION
INTERSECTION, SEE KALVEN, THE CONCEPT OF THE PUBLIC FORUM:  COX V.
LOUISIANA, 1965 SUP.CT.REV.  1, 29-30; T. EMERSON, THE SYSTEM OF
FREEDOM OF EXPRESSION 303-304, 305-307 (1970).  BLASI, PRIOR RESTRAINS
ON DEMONSTRATIONS, 68 MICH.L.REV.  1482, 1492-1497 (1970); VAN ALSTYNE,
POLITICAL SPEAKERS AT STATE UNIVERSITIES:  SOME CONSTITUTIONAL
CONSIDERATIONS, 111 U.PA.L.REV.  328, 337-339 (1963); SEE ALSO NIEMOTKO
V. MARYLAND, 340 U.S. 268, 272 (1951). 

/4/  A MEIKLEJOHN, POLITICAL FREEDOM:  THE CONSTITUTIONAL POWERS OF
THE PEOPLE 27 (1948). 

/5/  SEE ALSO TINKER V. DES MOINES SCHOOL DISTRICT, 393 U.S. 503,
510-511 (1969); ADDERLEY V. FLORIDA, 385 U.S. 39, 47 (1966); CARLSON V.
CALIFORNIA, 310 U.S. 106, 112 (1940); WIRTA V. ALAMEDA-CONTRA COSTA
TRANSIT DISTRICT, 68 CAL.2D 51, 434 P.2D 982 (1967); BYNUM V. SCHIRO,
219 F.SUPP.  204 (ED LA. 1963), AFF'D, 375 U.S. 395 (1964); EAST MEADOW
ASSN. V. BOARD OF EDUCATION, 18 N.Y.2D 129, 219 N.E.2D 172 (1966);
MATTER OF MADOLE V. BARNES, 20 N.Y.2D 169, 229 N.E.2D 20 (1967); UNITED
STATES V. CROWTHERS, 456 F.2D 1074 (CA4 1972); AND THE LITIGATION IN
ELLIS V. DIXON, 349 U.S. 458 (1955).  CF. FLOWER V. UNITED STATES, 407
U.S. 197 (1972). 

/6/  KALVEN, THE CONCEPT OF THE PUBLIC FORUM:  COX V. LOUISIANA,
1965 SUP.CT.REV.  29.  CF. COX V. LOUISIANA, 379 U.S. 536, 556 N. 14,
WHERE THE COURT NOTED THAT THE EXEMPTION FOR LABOR PICKETING IN A
STATUTE OTHERWISE BARRING ON ITS FACE ALL STREET ASSEMBLIES AND
PARADES, "POINTS UP THE FACT THAT THE STATUTE REACHES BEYOND MERE
TRAFFIC REGULATION TO RESTRICTIONS ON EXPRESSION." 

/7/  THE CITY NOTES IN ITS BRIEF, PP. 28-30: 

"ALTHOUGH THE CIVIL RIGHTS MOVEMENT HAS UNDERSTANDABLY ENDEAVORED TO
PRESS INTO ITS SERVICE THE CONSTITUTIONAL PRECEDENTS DEVELOPED IN LABOR
RELATIONS LITIGATION, THERE ARE IMPORTANT DIFFERENCES BETWEEN LABOR
PICKETING AND PICKETING BY CIVIL RIGHTS GROUPS . . . LABOR PICKETING IS
NOW USUALLY TOKEN PICKETING.  . . . IT SELDOM LEADS TO DISRUPTION OF
THE PUBLIC PEACE, HARDLY EVER TO WINDOW SMASHING, ARSON.  LABOR
PICKETING CAN BE CARRIED ON WITH INTERRUPTING CLASSES OR EVEN
DISTRACTING THE STUDENTS.  . . . AS WE ALL KNOW, STUDENT DEMONSTRATIONS
AT SCHOOLS-- AND EVEN SUCH DEMONSTRATIONS BY PARENTS AND 'CONCERNED
CITIZENS'-- ARE UTTERLY DIFFERENT.  MASS PICKETING, SIT-INS, SMASHED
WINDOWS HAVE BEEN THE ORDER OF THE DAY.  THE VERY PURPOSE OF SUCH
DEMONSTRATIONS OFTEN IS TO BRING THE EDUCATIONAL PROCESS TO A HALT." 

/8/  IN A VARIETY OF CONTEXTS WE HAVE SAID THAT "EVEN THOUGH THE
GOVERNMENTAL PURPOSE BE LEGITIMATE AND SUBSTANTIAL, THAT PURPOSE CANNOT
BE PURSUED BY MEANS THAT BROADLY STIFLE FUNDAMENTAL PERSONAL LIBERTIES
WHEN THE END CAN BE MORE NARROWLY ACHIEVED."  SHELTON V. TUCKER, 364
U.S. 479, 488 (1960).  THIS STANDARD, OF COURSE, HAS BEEN CAREFULLY
APPLIED WHEN FIRST AMENDMENT INTERESTS ARE INVOLVED.  E.G., SCHNEIDER
V. STATE, 308 U.S. 147, 164 (1939); DE JONGE V. OREGON, 299 U.S. 353,
364-365 (1937); CANTWELL V. CONNECTICUT, 310 U.S. 296, 307 (1940);
NAACP V. BUTTON, 371 U.S. 415, 438 (1963); COX V. LOUISIANA, 379 U.S.
559, 562-564 (1965); UNITED STATES V. O'BRIEN, 391 U.S. 367 (1968). 

/9/  CHICAGO ARGUED BELOW THAT THE LABOR EXEMPTION IN THE ORDINANCE
WAS NECESSITATED BY FEDERAL PRE-EMPTION OF THE REGULATION OF LABOR
RELATIONS.  THE CITY NOW RECOGNIZES THAT THE NATIONAL LABOR RELATIONS
ACT SPECIFICALLY EXEMPTS STATES AND SUBDIVISION (AND THEREFORE CITIES
AND THEIR PUBLIC SCHOOL BOARDS) FROM THE DEFINITION OF "EMPLOYER"
WITHIN THE ACT.  29 U.S.C. 152.  NEVERTHELESS, CHICAGO URGES THAT THE
PRE-EMPTION ARGUMENT STILL HAS "SOME MERIT."  IT ARGUES THAT "SINCE
OBSERVANCE BY EMPLOYEES OF PRIVATE EMPLOYERS OF PICKET LINES OF PUBLIC
EMPLOYEES CAN HAVE REPERCUSSIONS IN THE FEDERAL SPHERE, THE CITY WAS
WELL ADVISED TO AVOID THIS QUAGMIRE OF LABOR LAW AND LABOR RELATIONS BY
EXEMPTING LABOR PICKETING FROM THE ORDINANCE."  REPLY BRIEF 12.  THIS
ATTENUATED INTEREST, AT BEST A CLAIM OF SMALL ADMINISTRATIVE
CONVENIENCE AND PERHAPS MERELY A CONFESSION OF LEGISLATIVE LAZINESS,
CANNOT JUSTIFY THE BLANKET PERMISSION GIVEN TO LABOR PICKETING AND THE
BLANKET PROHIBITION APPLICABLE TO OTHERS. 

MR. JUSTICE BLACKMUN AND MR. JUSTICE REHNQUIST CONCUR IN THE
RESULT. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN THE COURT'S OPINION BUT WITH THE RESERVATION THAT SOME OF THE
LANGUAGE USED IN THE DISCUSSION OF THE FIRST AMENDMENT COULD, IF READ
OUT OF CONTEXT, BE MISLEADING.  NUMEROUS HOLDINGS OF THIS COURT ATTEST
TO THE FACT THAT THE FIRST AMENDMENT DOES NOT LITERALLY MEAN THAT WE
"ARE GUARANTEED THE RIGHT TO EXPRESS ANY THOUGHT, FREE FROM GOVERNMENT
CNESORSHIP."  THIS STATEMENT IS SUBJECT TO SOME QUALIFICATIONS, AS FOR
EXAMPLE THOSE OF ROTH V. UNITED STATES, 354 U.S. 476 (1957); CHAPLINSKY
V. NEW HAMPSHIRE, 315 U.S. 568 (1942).  SEE ALSO NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254 (1964). 

RICHARD L. CURRY ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE WILLIAM R. QUINLAN AND EDMUND HATFIELD. 

HARVEY J. BARNETT ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE RONALD L. BARNARD AND HAL M. BROWN. 
..END :













GRAYNED V. CITY OF ROCKFORD, 408 U.S. 104 


       GRAYNED V. CITY OF ROCKFORD

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 70-5106.  ARGUED JANUARY 19, 1972-- DECIDED JUNE 26,

           1972 


1.  ANTIPICKETING ORDINANCE, VIRTUALLY IDENTICAL WITH ONE INVALIDATED
AS VIOLATIVE OF EQUAL PROTECTION IN POLICE DEPARTMENT OF CHICAGO V.
MOSLEY, ANTE, P. 92, IS LIKEWISE INVALID.  P. 107. 

2.  ANTINOISE ORDINANCE PROHIBITING A PERSON WHILE ON GROUNDS
ADJACENT TO A BUILDING IN WHICH A SCHOOL IS IN SESSION FROM WILLFULLY
MAKING A NOISE OR DIVERSION THAT DISTURBS OR TENDS TO DISTURB THE PEACE
OR GOOD ORDER OF THE SCHOOL SESSION IS NOT UNCONSTITUTIONALLY VAGUE OR
OVERBROAD.  THE ORDINANCE IS NOT VAGUE SINCE, WITH FAIR WARNING, IT
PROHIBITS ONLY ACTUAL OR IMMINENT, AND WILLIFUL, INTERFERENCE WITH
NORMAL SCHOOL ACTIVITY, AND IS NOT A BROAD INVITATION TO DISCRIMINATORY
ENFORCEMENT.  COX V. LOUISIANA, 379 U.S. 536; COATES V. CINCINNATI, 402
U.S. 611, DISTINGUISHED.  THE ORDINANCE IS NOT OVERBROAD AS UNDULY
INTERFERING WITH FIRST AMENDMENT RIGHTS SINCE EXPRESSIVE ACTIVITY IS
PROHIBITED ONLY IF IT "MATERIALLY DISRUPTS CLASSWORK."  TINKER V. DES
MOINES SCHOOL DISTRICT, 393 U.S. 503, 513.  PP. 107-121. 

46 ILL.2D 492, 263 N.E.2D 866, AFFIRMED IN PART AND REVERSED IN
PART. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, WHITE, POWELL, AND REHNQUIST, JJ., JOINED. 
BLACKMAN, J., FILED A STATEMENT JOINING IN THE JUDGMENT AND IN PART I
OF THE COURT'S OPINION AND CONCURRING IN THE RESULT AS TO PART II OF
THE OPINION, POST, P. 121.  DOUGLAS, J., FILED AN OPINION DISSENTING IN
PART AND JOINING IN PART I OF THE COURT'S OPINION, POST, P. 121. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

APPELLANT RICHARD GRAYNED WAS CONVICTED FOR HIS PART IN A
DEMONSTRATION IN FRONT OF WEST SENIOR HIGH SCHOOL IN ROCKFORD,
ILLINOIS.  NEGRO STUDENTS AT THE SCHOOL HAD FIRST PRESENTED THEIR
GRIEVANCES TO SCHOOL ADMINISTRATORS.  WHEN THE PRINCIPAL TOOK NO ACTION
ON CRUCIAL COMPLAINTS, A MORE PUBLIC DEMONSTRATION OF PROTEST WAS
PLANNED.  ON APRIL 25, 1969, APPROXIMATELY 200 PEOPLE-- STUDENTS, THEIR
FAMILY MEMBERS, AND FRIENDS-- GATHERED NEXT TO THE SCHOOL GROUNDS. 
APPELLANT, WHOSE BROTHER AND TWIN SISTERS WERE ATTENDING THE SCHOOL,
WAS PART OF THIS GROUP.  THE DEMONSTRATORS MARCHED AROUND ON A SIDEWALK
ABOUT 100 FEET FROM THE SCHOOL BUILDING, WHICH WAS SET BACK FROM THE
STREET.  MANY CARRIED SIGNS WHICH SUMMARIZED THE GRIEVANCES:  "BLACK
CHEERLEADERS TO CHEER TOO"; "BLACK HISTORY WITH BLACK TEACHERS"; "EQUAL
RIGHTS, NEGRO COUNSELORS."  OTHERS, WITHOUT PLACARDS, MADE THE "POWER
TO THE PEOPLE" SIGN WITH THEIR UPRAISED AND CLENCHED FISTS. 

IN OTHER RESPECTS, THE EVIDENCE AT APPELLANT'S TRIAL WAS SHARPLY
CONTRADICTORY.  GOVERNMENT WITNESSES REPORTED THAT THE DEMONSTRATORS
REPEATEDLY CHEERED, CHANTED, BAITED POLICEMEN, AND MADE OTHER NOISE
THAT WAS AUDIBLE IN THE SCHOOL; THAT HUNDREDS OF STUDENTS WERE
DISTRACTED FROM THEIR SCHOOL ACTIVITIES AND LINED THE CLASSROOM WINDOWS
TO WATCH THE DEMONSTRATION; THAT SOME DEMONSTRATORS SUCCESSFULLY YELLED
TO THEIR FRIENDS TO LEAVE THE SCHOOL BUILDING AND JOIN THE
DEMONSTRATION; THAT UNCONTROLLED LATENESSES AFTER PERIOD CHANGES IN THE
SCHOOL WERE FAR GREATER THAN USUAL, WITH LATE STUDENTS ADMITTING THAT
THEY HAD BEEN WATCHING THE DEMONSTRATION; AND THAT, IN GENERAL, ORDERLY
SCHOOL PROCEDURE WAS DISRUPTED.  DEFENSE WITNESSES CLAIMED THAT THE
DEMONSTRATORS WERE AT ALL TIMES QUIET AND ORDERLY; THAT THEY DID NOT
SEEK TO VIOLATE THE LAW, BUT ONLY TO "MAKE A POINT"; THAT THE ONLY
NOISE WAS MADE BY POLICEMEN USING LOUDSPEAKERS; THAT ALMOST NO STUDENTS
WERE NOTICEABLE AT THE SCHOOLHOUSE WINDOWS; AND THAT ORDERLY SCHOOL
PROCEDURE WAS NOT DISRUPTED. 

AFTER WARNING THE DEMONSTRATORS, THE POLICE ARRESTED 40 OF THEM,
INCLUDING APPELLANT.  /1/  FOR PARTICIPATING IN THE DEMONSTRATION,
GRAYNED WAS TRIED AND CONVICTED OF VIOLATING TWO ROCKFORD ORDINANCES,
HEREINAFTER REFERRED TO AS THE "ANTIPICKETING" ORDINANCE AND THE
"ANTINOISE" ORDINANCE.  A $25 FINE WAS IMPOSED FOR EACH VIOLATION. 
SINCE GRAYNED CHALLENGED THE CONSTITUTIONALITY OF EACH ORDINANCE, HE
APPEALED DIRECTLY TO THE SUPREME COURT OF ILLINOIS.  ILL. SUP. CT. RULE
302.  HE CLAIMED THAT THE ORDINANCES WERE INVALID ON THEIR FACE, BUT
DID NOT URGE THAT, AS APPLIED TO HIM, THE ORDINANCES HAD PUNISHED
CONSTITUTIONALITY PROTECTED ACTIVITY.  THE SUPREME COURT OF ILLINOIS
HELD THAT BOTH ORDINANCES WERE CONSTITUTIONAL ON THEIR FACE.  46 ILL.2D
492, 263 N.E.2D 866 (1970).  WE NOTED PROBABLE JURISDICTION, 404 U.S.
820 (1971).  WE CONCLUDE THAT THE ANTIPICKETING ORDINANCE IS
UNCONSTITUTIONAL, BUT AFFIRM THE COURT BELOW WITH RESPECT TO THE
ANTINOISE ORDINANCE. 

        I 

AT THE TIME OF APPELLANT'S ARREST AND CONVICTION, ROCKFORD'S
ANTIPICKETING ORDINANCE PROVIDED THAT 

     "A PERSON COMMITS DISORDERLY CONDUCT WHEN HE KNOWINGLY:

        .          .          .   . 

     "(I) PICKETS OR DEMONSTRATES ON A PUBLIC WAY WITHIN 150 FEET
OF

  ANY PRIMARY OR SECONDARY SCHOOL BUILDING WHILE THE SCHOOL IS IN

  SESSION AND ONE-HALF HOUR AFTER THE SCHOOL SESSION HAS BEEN

  CONCLUDED, PROVIDED THAT THIS SUBSECTION DOES NOT PROHIBIT THE

  PEACEFUL PICKETING OF ANY SCHOOL INVOLVED IN A LABOR DISPUTE . .

  . . "  CODE OF ORDINANCES, C. 28, SEC. 18.1(I). 

THIS ORDINANCE IS IDENTICAL TO THE CHICAGO DISORDERLY CONDUCT ORDINANCE
WE HAVE TODAY CONSIDERED IN POLICE DEPARTMENT OF CHICAGO V. MOSLEY,
ANTE, P. 92.  FOR THE REASONS GIVEN IN MOSLEY, WE AGREE WITH DISSENTING
JUSTICE SCHAEFER BELOW, AND HOLD THAT SEC. 18.1(I) VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  APPELLANT'S CONVICTION
UNDER THIS INVALID ORDINANCE MUST BE REVERSED.  /2/

        II 

THE ANTINOISE ORDINANCE READS, IN PERTINENT PART, AS FOLLOWS: 

"(NO PERSON, WHILE ON PUBLIC OR PRIVATE GROUNDS ADJACENT TO ANY
BUILDING IN WHICH A SCHOOL OR ANY CLASS THEREOF IS IN SESSION, SHALL
WILLFULLY MAKE OR ASSIST IN THE MAKING OF ANY NOISE OR DIVERSION WHICH
DISTURBS OR TENDS TO DISTURB THE PEACE OR GOOD ORDER OF SUCH SCHOOL
SESSION OR CLASS THEREOF.  . . . "  CODE OF ORDINANCES, C. 28, SEC.
19.2(A).  APPELLANT CLAIMS THAT, ON ITS FACE, THIS ORDINANCE IS BOTH
VAGUE AND OVERBROAD, AND THEREFORE UNCONSTITUTIONAL.  WE CONCLUDE,
HOWEVER, THAT THE ORDINANCE SUFFERS FROM NEITHER OF THESE RELATED
INFIRMITIES. 

        A. VAGUENESS 

IT IS A BASIC PRINCIPLE OF DUE PROCESS THAT AN ENACTMENT IS VOID FOR
VAGUENESS IF ITS PROHIBITIONS ARE NOT CLEARLY DEFINED.  VAGUE LAWS
OFFEND SEVERAL IMPORTANT VALUES.  FIRST, BECAUSE WE ASSUME THAT MAN IS
FREE TO STEER BETWEEN LAWFUL AND UNLAWFUL CONDUCT, WE INSIST THAT LAWS
GIVE THE PERSON OF ORDINARY INTELLIGENCE A REASONABLE OPPORTUNITY TO
KNOW WHAT IS PROHIBITED, SO THAT HE MAY ACT ACCORDINGLY.  VAGUE LAWS
MAY TRAP THE INNOCENT BY NOT PROVIDING FAIR WARNING.  /3/  SECOND, IF
ARBITRARY AND DISCRIMINATORY ENFORCEMENT IS TO BE PREVENTED, LAWS MUST
PROVIDE EXPLICIT STANDARDS FOR THOSE WHO APPLY THEM.  /4/  A VAGUE LAW
IMPERMISSIBLY DELEGATES BASIC POLICY MATTERS TO POLICEMEN, JUDGES, AND
JURIES FOR RESOLUTION ON AN AD HOC AND SUBJECTIVE BASIS, WITH THE
ATTENDANT DANGERS OF ARBITRARY AND DISCRIMINATORY APPLICATION.  /5/
THIRD, BUT RELATED, WHERE A VAGUE STATUTE "ABUTS) UPON SENSITIVE AREAS
OF BASIC FIRST AMENDMENT FREEDOMS,"  /6/  IT "OPERATES TO INHIBIT THE
EXERCISE OF (THOSE) FREEDOMS."  /7/  UNCERTAIN MEANINGS INEVITABLY LEAD
CITIZENS TO "'STEER FAR WIDER OF THE UNLAWFUL ZONE' . . . THAN IF THE
BOUNDARIES OF THE FORBIDDEN AREAS WERE CLEARLY MARKED."  /8/ 

ALTHOUGH THE QUESTION IS CLOSE, WE CONCLUDE THAT THE ANTINOISE
ORDINANCE IS NOT IMPERMISSIBLY VAGUE.  THE COURT BELOW REJECTED
APPELLANT'S ARGUMENTS "THAT PROSCRIBED CONDUCT WAS NOT SUFFICIENTLY
SPECIFIED AND THAT POLICE WERE GIVEN TOO BROAD A DISCRETION IN
DETERMINING WHETER CONDUCT WAS PROSCRIBED."  46 ILL.2D, AT PAGE 494,
263 N.E.2D, AT 867.  ALTHOUGH IT REFERRED TO OTHER, SIMILAR STATUTES IT
HAD RECENTLY CONSTRUED AND UPHELD, THE COURT BELOW DID NOT ELABORATE ON
THE MEANING OF THE ANTINOISE ORDINANCE.  /9/  IN THIS SITUATION, AS MR.
JUSTICE FRANKFURTER PUT IT, WE MUST "EXTRAPOLATE ITS ALLOWABLE
MEANING."  /10/  HERE, WE ARE "RELEGATED . . . TO THE WORDS OF THE
ORDINANCE ITSELF,"  /11/  TO THE INTERPRETATIONS THE COURT BELOW HAS
GIVEN TO ANALOGOUS STATUTES, /12/  AND, PERHAPS TO SOME DEGREE, TO THE
INTERPRETATION OF THE STATUTE GIVEN BY THOSE CHARGED WITH ENFORCING
IT.  /13/  "EXTRAPOLATION," OF COURSE, IS A DELICATE TASK, FOR IT IS
NOT WITHIN OUR POWER TO CONSTRUE AND NARROW STATE LAWS.  /14/ 

WITH THAT WARNING, WE FIND NO UNCONSTITUTIONAL VAGUENESS IN THE
ANTINOISE ORDINANCE.  CONDEMNED TO THE USE OF WORDS, WE CAN NEVER
EXPECT MATHEMATICAL CERTAINTY FROM OUR LANGUAGE.  /15/  THE WORDS OF
THE ROCKFORD ORDINANCE ARE MARKED BY "FLEXIBILITY AND REASONABLE
BREADTH, RATHER THAN METICULOUS SPECIFICITY," ESTEBAN V. CENTRAL
MISSOURI STATE COLLEGE, 415 F.2D 1077, 1088 (CA8 1969) (BLACKMUN, J.),
CERT. DENIED, 398 U.S. 965 (1970), BUT WE THINK IT IS CLEAR WHAT THE
ORDINANCE AS A WHOLE PROHIBITS.  DESIGNED, ACCORDING TO ITS PREAMBLE,
"FOR THE PROTECTION OF SCHOOLS," THE ORDINANCE FORBIDS DELIBERATELY
NOISY OR DIVERSIONARY /16/  ACTIVITY THAT DISRUPTS OR IS ABOUT TO
DISRUPT NORMAL SCHOOL ACTIVITIES.  IT FORBIDS THIS WILLFUL ACTIVITY AT
FIXED TIMES-- WHEN SCHOOL IS IN SESSION-- AND AT A SUFFICIENTLY FIXED
PLACE-- "ADJACENT" TO THE SCHOOL.  /17/  WERE WE LEFT WITH JUST THE
WORDS OF THE ORDINANCE, WE MIGHT BE TROUBLED BY THE IMPRECISION OF THE
PHRASE "TENDS TO DISTURB."  /18/  HOWEVER, IN CHICAGO V. MEYER, 44
ILL.2D 1, 4, 253 N.E.2D 400, 402 (1969), AND CHICAGO V. GREGORY, 39
ILL.2D 47, 233 N.E.2D 422 (1968), REVERSED ON OTHER GROUNDS, 394 U.S.
111 (1969), THE SUPREME COURT OF ILLINOIS CONSTRUED A CHICAGO ORDINANCE
PROHIBITING, INTER ALIA, A "DIVERSION TENDING TO DISTURB THE PEACE,"
AND HELD THAT IT PERMITTED CONVICTION ONLY WHERE THERE WAS "IMMINENT
THREAT OF VIOLENCE."  SEE GREGORY V. CHICAGO, 394 U.S. 111, 116-117,
121-122 (1969) (BLACK, J., CONCURRING).  /19/  SINCE MEYER WAS
SPECIFICALLY CITED IN THE OPINION BELOW, AND IT IN TURN DREW HEAVILY ON
GREGORY, WE THINK IT PROPER TO CONCLUDE THAT THE SUPREME COURT OF
ILLINOIS WOULD INTERPRET THE ROCKFORD ORDINANCE TO PROHIBIT ONLY ACTUAL
OR IMMINENT INTERFERENCE WITH THE "PEACE OR GOOD ORDER" OF THE SCHOOL. 
/20/ 

ALTHOUGH THE PROHIBITED QUANTUM OF DISTURBANCE IS NOT SPECIFIED IN
THE ORDINANCE, IT IS APPARENT FROM THE STATUTE'S ANNOUNCED PURPOSE THAT
THE MEASURE IS WHETHER NORMAL SCHOOL ACTIVITY HAS BEEN OR IS ABOUT TO
BE DISRUPTED.  WE DO NOT HAVE HERE A VAGUE, GENERAL "BREACH OF THE
PEACE" ORDINANCE, BUT A STATUTE WRITTEN SPECIFICALLY FOR THE SCHOOL
CONTEXT, WHERE THE PROHIBITED DISTURBANCES ARE EASILY MEASURED BY THEIR
IMPACT ON THE NORMAL ACTIVITIES OF THE SCHOOL.  GIVEN THIS "PARTICULAR
CONTEXT," THE ORDINANCE GIVES "FAIR NOTICE TO THSOE TO WHOM (IT) IS
DIRECTED."  /21/  ALTHOUGH THE ROCKFORD ORDINANCE MAY NOT BE AS PRECISE
AS THE STATUTE WE UPHELD IN CAMERON V. JOHNSON, 390 U.S. 611 (1968)--
WHICH PROHIBITED PICKETING "IN SUCH A MANNER AS TO OBSTRUCT OR
UNREASONABLY INTERFERE WITH FREE INGRESS OR EGRESS TO AND FROM" ANY
COURTHOUSE-- WE THINK THAT, AS IN CAMERON, THE ORDINANCE HERE CLEARLY
"DELINEATES ITS REACH IN WORDS OF COMMON UNDERSTANDING."  ID., AT 616. 

COX V. LOUISIANA, 379 U.S. 536 (1965), AND COATES V. CINCINNATI, 402
U.S. 611 (1971), ON WHICH APPELLANT PARTICULARLY RELIES, PRESENTED
COMPLETELY DIFFERENT SITUATIONS.  IN COX, A GENERAL BREACH OF THE PEACE
ORDINANCE HAD BEEN CONSTRUED BY STATE COURTS TO MEAN "TO AGITATE, TO
AROUSE FROM A STATE OR REPOSE, TO MOLEST, TO INTERRUPT, TO HINDER, TO
DISQUIET."  THE COURT CORRECTLY CONCLUDED THAT, AS CONSTRUED, THE
ORDINANCE PERMITTED PERSONS TO BE PUNISHED FOR MERELY EXPRESSING
UNPOPULAR VIEWS.  /22/  IN COATES, THE ORDINANCE PUNISHED THE SIDEWALK
ASSEMBLY OF THREE OR MORE PERSONS WHO "CONDUCT THEMSELVES IN A MANNER
ANNOYING TO PERSONS PASSING BY . . . . "  WE HELD, IN PART, THAT THE
ORDINANCE WAS IMPERMISSIBLY VAGUE BECAUSE ENFORCEMENT DEPENDED ON THE
COMPLETELY SUBJECTIVE STANDARD OF "ANNOYANCE." 

IN CONTRAST, ROCKFORD'S ANTINOISE ORDINANCE DOES NOT PERMIT
PUNISHMENT FOR THE EXPRESSION OF AN UNPOPULAR POINT OF VIEW, AND IT
CONTAINS NO BROAD INVITATION TO SUBJECTIVE OR DISCRIMINATORY
ENFORCEMENT.  ROCKFORD DOES NOT CLAIM THE BROAD POWER TO PUNISH ALL
"NOISES" AND "DIVERSIONS."  /23/  THE VAGUENESS OF THESE TERMS, BY
THEMSELVES, IS DISPELLED BY THE ORDINANCE'S REQUIREMENTS THAT (1) THE
"NOISE OR DIVERSION" BE ACTUALLY INCOMPATIBLE WITH NORMAL SCHOOL
ACTIVITY; (2) THERE BE A DEMONSTRATED CAUSALITY BETWEEN THE DISRUPTION
THAT OCCURS AND THE "NOISE OR DIVERSION"; AND (3) THE ACTS BE
"WILLFULLY" DONE.  /24/  "UNDESIRABLES" OR THEIR "ANNOYING" CONDUCT MAY
NOT BE PUNISHED.  THE ORDINANCE DOES NOT PERMIT PEOPLE TO "STAND ON A
PUBLIC SIDEWALK . . . ONLY AT THE WHIM OF ANY POLICE OFFICER."  /25/
RATHER, THERE MUST BE DEMONSTRATED INTERFERENCE WITH SCHOOL
ACTIVITIES.  AS ALWAYS, ENFORCEMENT REQUIRES THE EXERCISE OF SOME
DEGREE OF POLICE JUDGMENT, BUT, AS CONFINED, THAT DEGREE OF JUDGMENT
HERE IS PERMISSIBLE.  THE ROCKFORD CITY COUNCIL HAS MADE THE BASIC
POLICY CHOICES, AND HAS GIVEN FAIR WARNING AS TO WHAT IS PROHIBITED. 
"(THE ORDINANCE DEFINES BOUNDARIES SUFFICIENTLY DISTINCT" FOR CITIZENS,
POLICEMEN, JURIES, AND APPELLATE JUDGES.  /26/  IT IS NOT IMPERMISSIBLY
VAGUE. 

  B. OVERBREADTH 

A CLEAR AND PRECISE ENACTMENT MAY NEVERTHELESS BE "OVERBROAD" IF IN
ITS REACH IT PROHIBITS CONSTITUTIONALLY PROTECTED CONDUCT.  /27/
ALTHOUGH APPELLANT DOES NOT CLAIM THAT, AS APPLIED TO HIM, THE
ANTINOISE ORDINANCE HAS PUNISHED PROTECTED EXPRESSIVE ACTIVITY, HE
CLAIMS THAT THE ORDINANCE IS OVERBOARD ON ITS FACE.  BECAUSE OVERBROAD
LAWS, LIKE VAGUE ONES, DETER PRIVILEGED ACTIVITY, OUR CASES FIRMLY
ESTABLISH APPELLANT'S STANDING TO RAISE AN OVERBREADTH CHALLENGE.  /29/
THE CRUCIAL QUESTION, THEN, IS WHETHER THE ORDINANCE SWEEPS WITHIN ITS
PROHIBITIONS WHAT MAY NOT BE PUNISHED UNDER THE FIRST AND FOURTEENTH
AMENDMENTS.  SPECIFICALLY, APPELLANT CONTENDS THAT THE ROCKFORD
ORDINANCE UNDULY INTERFERES WITH FIRST AND FOURTEENTH AMENDMENT RIGHTS
TO PICKET ON A PUBLIC SIDEWALK NEAR A SCHOOL.  WE DISAGREE. 

"IN CONSIDERING THE RIGHT OF A MUNICIPALITY TO CONTROL THE USE OF
PUBLIC STREETS FOR THE EXPRESSION OF RELIGIOUS (OR POLITICAL) VIEWS, WE
START WITH THE WORDS OF MR. JUSTICE ROBERTS THAT '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.'  HAGUE V. CIO, 307 U.S. 496, 515
(1939)."  KUNZ V. NEW YORK, 340 U.S. 290, 293 (1951).  SEE
SHUTTLESWORTH V. BIRMINGHAM, 394 U.S. 147, 152 (1969).  THE RIGHT TO
USE A PUBLIC PLACE FOR EXPRESSIVE ACTIVITY MAY BE RESTRICTED ONLY FOR
WEIGHTY REASONS.     CLEARLY, GOVERNMENT HAS NO POWER TO RESTRICT SUCH
ACTIVITY BECAUSE OF ITS MESSAGE.  /29/  OUR CASES MAKE EQUALLY CLEAR,
HOWEVER, THAT REASONABLE "TIME, PLACE AND MANNER" REGULATIONS MAY BE
NECESSARY TO FURTHER SIGNIFICANT GOVERNMENTAL INTEREST, AND ARE
PERMITTED.  /30/  FOR EXAMPLE, TWO PARADES CANNOT MARCH ON THE SAME
STREET SIMULTANEOUSLY, AND GOVERNMENT MAY ALLOW ONLY ONE.  COX V. NEW
HAMPSHIRE, 312 U.S. 569, 576 (1941).  A DEMONSTRATION OR PARADE ON A
LARGE STREET DURING RUSH HOUR MIGHT PUT AN INTOLERABLE BURDEN ON THE
ESSENTIAL FLOW OF TRAFFIC, AND FOR THAT REASON COULD BE PROHIBITED. 
COX V. LOUISIANA, 379 U.S.,AT 554.  IF OVERAMPLIFIED LOUDSPEAKERS
ASSAULT THE CITIZENRY, GOVERNMENT MAY TURN THEM DOWN.  KOVACS V.
COOPER, 336 U.S. 77 (1949); SAIA V. NEW YORK, 334 U.S. 558, 562
(1948).  SUBJECT TO SUCH REASONABLE REGULATION, HOWEVER, PEACEFUL
DEMONSTRATIONS IN PUBLIC PLACES ARE PROTECTED BY THE FIRST AMENDMENT. 
/31/  OF COURSE, WHERE DEMONSTRATIONS TURN VIOLENT, THEY LOSE THEIR
PROTECTED QUALITY AS EXPRESSION UNDER THE FIRST AMENDMENT.  /32/ 

THE NATURE OF A PLACE, "THE PATTERN OF ITS NORMAL ACTIVITIES, DICTATE
THE KINDS OF REGULATIONS OF TIME, PLACE, AND MANNER THAT ARE
REASONABLE."  /32/  ALTHOUGH A SILENT VIGIL MAY NOT UNDULY INTERFERE
WITH A PUBLIC LIBRARY, BROWN V. LOUISIANA, 383 U.S. 131 (1966), MAKING
A SPEECH IN THE READING ROOM ALMOST CERTAINLY WOULD.  THAT SAME SPEECH
SHOULD BE PERFECTLY APPROPRIATE IN A PARK.  THE CRUCIAL QUESTION IS
WHETHER THE MANNER OF EXPRESSION IS BASICALLY INCOMPATIBLE WITH THE
NORMAL ACTIVITY OF A PARTICULAR PLACE AT A PARTICULAR TIME.  OUR CASES
MAKE CLEAR THAT IN ASSESSING THE REASONABLENESS OF A REGULATION, WE
MUST WEIGH HEAVILY THE FACT THAT COMMUNICATION IS INVOLVED; /34/  THE
REGULATION MUST BE NARROWLY TAILORED TO FURTHER THE STATE'S LEGITIMATE
INTEREST.  /35/  ACCESS TO THE "STREETS, SIDEWALKS, PARKS, AND OTHER
SIMILAR PUBLIC PLACES . . . FOR THE PURPOSE OF EXERCISING (FIRST
AMENDMENT RIGHTS) CANNOT CONSTITUTIONALLY BE DENIED BROADLY . . . . "
/36/  FREE EXPRESSION "MUST NOT, IN THE GUISE OF REGULATION, BE
ABRIDGED OR DENIED."  /37/ 

IN LIGHT OF THESE GENERAL PRINCIPLES, WE DO NOT THINK THAT
ROCKFORD'S ORDINANCE IS AN UNCONSTITUTIONAL REGULATION OF ACTIVITY
AROUND A SCHOOL.  OUR TOUCHSTONE IS TINKER V. DES MOINES SCHOOL
DISTRICT, 393 U.S. 503 (1969), IN WHICH WE CONSIDERED THE QUESTION OF
HOW TO ACCOMMODATE FIRST AMENDMENT RIGHTS WITH THE "SPECIAL
CHARACTERISTICS OF THE SCHOOL ENVIRONMENT."  ID., AT 506.  TINKER HELD
THAT THE DES MOINES SCHOOL DISTRICT COULD NOT PUNISH STUDENTS FOR
WEARING BLACK ARMBANDS TO SCHOOL IN PROTEST OF THE VIETNAM WAR. 
RECOGNIZING THAT "'WIDE EXPOSURE TO . . . ROBUST EXCHANGE OF IDEAS'" IS
AN "IMPORTANT PART OF THE EDUCATIONAL PROCESS" AND SHOULD BE NURTURED,
ID., AT 512, WE CONCLUDED THAT FREE EXPRESSION COULD NOT BE BARRED FROM
THE SCHOOL CAMPUS.  WE MADE CLEAR THAT "UNDIFFERENTIATED FEAR OR
APPREHENSION OF DISTURBANCE IS NOT ENOUGH TO OVERCOME THE RIGHT TO
FREEDOM OF EXPRESSION," ID., AT 508, /38/  AND THAT PARTICULAR
EXPRESSIVE ACTIVITY COULD NOT BE PROHIBITED BECAUSE OF A "MERE DESIRE
TO AVOID THE DISCOMFORT AND UNPLEASANTNESS THAT ALWAYS ACCOMPANY AN
UNPOPULAR VIEWPOINT," ID., AT 509.  BUT WE NOWHERE SUGGESTED THAT
STUDENTS, TEACHERS, OR ANYONE ELSE HAS AN ABSOLUTE CONSTITUTIONAL RIGHT
TO USE ALL PARTS OF A SCHOOL BUILDING OR ITS IMMEDIATE ENVIRONS FOR HIS
UNLIMITED EXPRESSIVE PURPOSES.  EXPRESSIVE ACTIVITY COULD CERTAINLY BE
RESTRICTED, BUT ONLY IF THE FORBIDDEN CONDUCT "MATERIALLY DISRUPTS
CLASSWORK OR INVOLVES SUBSTANTIAL DISORDER OR INVASION OF THE RIGHTS OF
OTHERS."  ID., AT 513.  THE WEARING OF ARMBANDS WAS PROTECTED IN TINKER
BECAUSE THE STUDENTS "NEITHER INTERRUPTED SCHOOL ACTIVITIES NOR SOUGHT
TO INTRUDE IN THE SCHOOL AFFAIRS OR THE LIVES OF OTHERS.  THEY . CAUSED
DISCUSSION OUTSIDE OF THE CLASSROOMS, BUT NO INTERFERENCE WITH WORK AND
NO DISORDER."  ID., AT 514.  COMPARE BURNSIDE V. BYARS, 363 F.2D 744
(CA5 1966), AND BUTTS V. DALLAS IND. SCHOOL DISTRICT, 436 F.2D 728 (CA5
1971), WITH BLACKWELL V. ISAQUENA COUNTY BOARD OF EDUCATION, 363 F.2D
749 (CA5 1966). 

JUST AS TINKER MADE CLEAR THAT SCHOOL PROPERTY MAY NOT BE DECLARED
OFF LIMITS FOR EXPRESSIVE ACTIVITY BY STUDENTS, WE THINK IT CLEAR THAT
THE PUBLIC SIDEWALK ADJACENT TO SCHOOL GROUNDS MAY NOT BE DECLARED OFF
LIMITS FOR EXPRESSIVE ACTIVITY BY MEMBERS OF THE PUBLIC.  BUT IN EACH
CASE, EXPRESSIVE ACTIVITY MAY BE PROHIBITED IF IT "MATERIALLY DISRUPTS
CLASSWORK OR INVOLVES SUBSTANTIAL DISORDER OR INVASION OF THE RIGHTS OF
OTHERS."  TINKER V. DES MOINES SCHOOL DISTRICT, 393 U.S.,AT 513.  /39/ 

WE WOULD BE IGNORING REALITY IF WE DID NOT RECOGNIZE THAT THE PUBLIC
SCHOOLS IN A COMMUNITY ARE IMPORTANT INSTITUTIONS, AND ARE OFTEN THE
FOCUS OF SIGNIFICANT GRIEVANCES.  /40/  WITHOUT INTERFERING WITH NORMAL
SCHOOL ACTIVITIES, DAYTIME PICKETING AND HANDBILLING ON PUBLIC GROUNDS
NEAR A SCHOOL CAN EFFECTIVELY PUBLICIZE THOSE GRIEVANCES TO
PEDESTRIANS, SCHOOL VISITORS, AND DELIVERYMEN, AS WELL AS TO TEACHERS,
ADMINISTRATORS, AND STUDENTS.  SOME PICKETING TO THAT END WILL BE QUIET
AND PEACEFUL, AND WILL IN NO WAY DISTURB THE NORMAL FUNCTIONING OF THE
SCHOOL.  FOR EXAMPLE, IT WOULD BE HIGHLY UNUSUAL IF THE CLASSIC
EXPRESSIVE GESTURE OF THE SOLITARY PICKET DISRUPTS ANYTHING RELATED TO
THE SCHOOL, AT LEAST ON A PUBLIC SIDEWALK OPEN TO PEDESTRIANS.  /41/
ON THE OTHER HAND, SCHOOLS COULD HARDLY TOLERATE BOISTEROUS
DEMONSTRATORS WHO DROWN OUT CLASSROOM CONVERSATION, MAKE STUDYING
IMPOSSIBLE, BLOCK ENTRANCES, OR INCITE CHILDREN TO LEAVE THE
SCHOOLHOUSE.  /42/ 

ROCKFORD'S ANTINOISE ORDINANCE GOES NO FURTHER THAN TINKER SAYS A
MUNICIPALITY MAY GO TO PREVENT INTERFERENCE WITH ITS SCHOOLS.  IT IS
NARROWLY TAILORED TO FURTHER ROCKFORD'S COMPELLING INTEREST IN HAVING
AN UNDISRUPTED SCHOOL SESSION CONDUCIVE TO THE STUDENTS' LEARNING, AND
DOES NOT UNNECESSARILY INTERFERE WITH FIRST AMENDMENT RIGHTS.  FAR FROM
HAVING AN IMPERMISSIBLY BROAD PROPHYLACTIC ORDINANCE, /43/  ROCKFORD
PUNISHES ONLY CONDUCT WHICH DISRUPTS OR IS ABOUT TO DISRUPT NORMAL
SCHOOL ACTIVITIES.  THAT DECISION IS MADE, AS IT SHOULD BE, ON AN
INDIVIDUALIZED BASIS, GIVEN THE PARTICULAR FACT SITUATION.  PEACEFUL
PICKETING WHICH DOES NOT INTERFERE WITH THE ORDINARY FUNCTIONING OF THE
SCHOOL IS PERMITTED.  AND THE ORDINANCE GIVES NO LICENSE TO PUNISH
ANYONE BECAUSE OF WHAT HE IS SAYING.  /44/ 

WE RECOGNIZE THAT THE ORDINANCE PROHIBITS SOME PICKETING THAT IS
NEITHER VIOLENT NOR PHYSICALLY OBSTRUCTIVE.  NOISY DEMONSTRATIONS THAT
DISRUPT OR ARE INCOMPATIBLE WITH NORMAL SCHOOL ACTIVITIES ARE OBVIOUSLY
WITHIN THE ORDINANCE'S REACH.  SUCH EXPRESSIVE CONDUCT MAY BE
CONSTITUTIONALLY PROTECTED AT OTHER PLACES OR OTHER TIMES, CF. EDWARDS
V. SOUTH CAROLINA, 372 U.S. 229 (1963); COX V. LOUISIANA, 379 U.S. 536
(1965), BUT NEXT TO A SCHOOL, WHILE CLASSES ARE IN SESSION, IT MAY BE
PROHIBITED.  /45/  THE ANTINOISE ORDINANCE IMPOSES NO SUCH RESTRICTION
ON EXPRESSIVE ACTIVITY BEFORE OR AFTER THE SCHOOL SESSION, WHILE THE
STUDENT/FACULTY "AUDIENCE" ENTERS AND LEAVES THE SCHOOL. 

IN COX V. LOUISIANA, 379 U.S. 559 (1965), THIS COURT INDICATED THAT,
BECAUSE OF THE SPECIAL NATURE OF THE PLACE, /46/  PERSONS COULD BE
CONSTITUTIONALLY PROHIBITED FROM PICKETING "IN OR NEAR" A COURTHOUSE
"WITH THE INTENT OF INTERFERING WITH, OBSTRUCTING, OR IMPEDING THE
ADMINISTRATION OF JUSTICE."  LIKEWISE, IN CAMERON V. JOHNSON, 390 U.S.
611 (1968), WE UPHELD A STATUTE PROHIBITING PICKETING "IN SUCH A MANNER
AS TO OBSTRUCT OR UNREASONABLY INTERFERE WITH FREE INGRESS OR EGRESS TO
AND FROM ANY . . . COUNTRY . . . COURTHOUSES."  /47/  AS IN THOSE TWO
CASES, ROCKFORD'S MODEST RESTRICTION ON SOME PEACEFUL PICKETING
REPRESENTS A CONSIDERED AND SPECIFIC LEGISLATIVE JUDGMENT THAT SOME
KINDS OF EXPRESSIVE ACTIVITY SHOULD BE RESTRICTED AT A PARTICULAR TIME
AND PLACE, HERE IN ORDER TO PROTECT THE SCHOOLS.  /48/  SUCH A
REASONABLE REGULATION IS NOT INCONSISTENT WITH THE FIRST AND FOURTEENTH
AMENDMENTS.  /49/  THE ANTINOISE ORDINANCE IS NOT INVALID ON ITS FACE. 
/50/ 

THE JUDGMENT IS

              AFFIRMED IN PART AND REVERSED IN PART. 

/1/  POLICE OFFICERS TESTIFIED THAT "THERE WAS NO WAY OF PICKING OUT
ANY ONE IN PARTICULAR" WHILE MAKING ARRESTS.  REPORT OF PROCEEDINGS IN
CIRCUIT COURT, 17TH JUDICIAL CIRCUIT, WINNEBAGO COUNTY 66.  HOWEVER,
APPARENTLY ONLY MALES WERE ARRESTED.  ID., AT 65, 135, 147.  SINCE
APPELLANT'S SOLE CLAIM IN THIS APPEAL IS THAT HE WAS CONVICTED UNDER
FACIALLY UNCONSTITUTIONAL ORDINANCES, THERE IS NO OCCASION FOR US TO
EVALUATE EITHER THE PROPRIETY OF THESE SELECTIVE ARRESTS OR THE
SUFFICIENCY OF EVIDENCE THAT APPELLANT HIMSELF ACTUALLY ENGAGED IN
CONDUCT WITHIN THE TERMS OF THE ORDINANCES.  MR. JUSTICE DOUGLAS, IN
CONCLUDING THAT APPELLANT'S PARTICULAR BEHAVIOR WAS PROTECTED BY THE
FIRST AMENDMENT, REACHES A QUESTION NOT PRESENTED BY THE PARTIES HERE
OR IN THE COURT BELOW.  SEE TR. OF ORAL ARG. 16-17; JURISDICTIONAL
STATEMENT 3; CITY OF ROCKFORD V. GRAYNED, 46 ILL.2D 492, 494, 263
N.E.2D 866, 867 (1970). 

/2/  IN NOVEMBER 1971, THE ANTIPICKETING ORDINANCE WAS AMENDED TO
DELETE THE LABOR PICKETING PROVISO.  AS ROCKFORD NOTES, "THIS AMENDMENT
AND DELETION HAS, OF COURSE, NO EFFECT ON APPELLANT'S PERSONAL
SITUATION."  BRIEF 2.  NECESSARILY, WE MUST CONSIDER THE FACIAL
CONSTITUTIONALITY OF THE ORDINANCE IN EFFECT WHEN APPELLANT WAS
ARRESTED AND CONVICTED. 

/3/  E.G., PAPACHRISTOU V. CITY OF JACKSONVILLE, 405 U.S. 156, 162
(1972); CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368 U.S. 278, 287 (1961);
UNITED STATES V. HARRISS, 347 U.S. 612, 617 (1954); JORDAN V. DE
GEORGE, 341 U.S. 223, 230-232 (1951); LANZETTA V. NEW JERSEY, 306 U.S.
451, 453 (1939); CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385,
391 (1926); UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81, 89 (1921);
INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S. 216, 223-224 (1914). 

/4/  E.G., PAPACHRISTOU V. CITY OF JACKSONVILLE, SUPRA; COATES V.
CINCINNATI, 402 U.S. 611, 614 (1971); GREGORY V. CHICAGO, 394 U.S. 111,
120 (1969) (BLACK, J., CONCURRING); INTERSTATE CIRCUIT V. DALLAS, 390
U.S. 676, 684-685 (1968); ASHTON V. KENTUCKY, 384 U.S. 195, 200 (1966);
GIACCIO V. PENNSYLVANIA, 382 U.S. 399 (1966); SHUTTLESWORTH V.
BIRMINGHAM, 382 U.S. 87, 90-91 (1965); KUNZ V. NEW YORK, 340 U.S. 290
(1951); SAIA V. NEW YORK, 334 U.S. 558, 559-560 (1948); THORNHILL V.
ALABAMA, 310 U.S. 88, 97-98 (1940); HERNDON V. LOWRY, 301 U.S. 242, 261
264 (1937). 

/5/  WHERE FIRST AMENDMENT INTERESTS ARE AFFECTED, A PRECISE STATUTE
"EVINCING A LEGISLATIVE JUDGMENT THAT CERTAIN SPECIFIC CONDUCT BE . . .
PROSCRIBED," EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 236 (1963),
ASSURES US THAT THE LEGISLATURE HAS FOCUSED ON THE FIRST AMENDMENT
INTERESTS AND DETERMINED THAT OTHER GOVERNMENTAL POLICIES COMPEL
REGULATION.  SEE KALVEN, THE CONCEPT OF THE PUBLIC FORUM:  COX V.
LOUISIANA, 1965 SUP.CT.REV.  1, 32; GARNER V. LOUISIANA, 368 U.S. 157,
200, 202 (1961) (HARLAN, J., CONCURRING IN JUDGMENT). 

/6/  BAGGETT V. BULLITT, 377 U.S. 360, 372 (1964). 

/7/  CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368 U.S.,AT 287. 

/8/ BAGGETT V. BULLITT, SUPRA, AT 372, QUOTING SPEISER V. RANDALL,
357 U.S. 513, 526 (1968).  SEE INTERSTATE CIRCUIT V. DALLAS, SUPRA, AT
684; ASHTON V. KENTUCKY, SUPRA, AT 195, 200-201; DOMBROWSKI V. PFISTER,
380 U.S. 479, 486 (1965); SMITH V. CALIFORNIA, 361 U.S. 147, 150-152
(1959); WINTERS V. NEW YORK, 333 U.S. 507 (1948); STROMBERG V.
CALIFORNIA, 283 U.S. 359, 369 (1931). 

/9/  THE TRIAL MAGISTRATE SIMPLY CHARGING THE JURY IN THE WORDS OF
THE ORDINANCE.  THE COMPLAINTAND ,VERDICT FORM USED SLIGHTLY DIFFERENT
LANGUAGE.  SEE N. 24, INFRA. 

/10/  GARNER V. LOUISIANA, 368 U.S.,AT 174 (CONCURRING IN
JUDGMENT). 

/11/  COATES V. CINCINNATI, 402 U.S.,AT 614. 

/12/  E.G., GOODING V. WILSON, 405 U.S. 518 (1972). 

/13/  E.G., LAKE CARRIERS ASSN. V. MACMULLAN, 406 U.S. 498, 506-508
(1972); COLE V. RICHARDSON, 405 U.S. 676 (1972); EHLERT V. UNITED
STATES, 402 U.S. 99, 105, 107 (1971); CF. POE V. ULLMAN, 367 U.S. 497
(1961). 

/14/  UNITED STATES V. 37 PHOTOGRAPHS, 402 U.S. 363, 369 (1971). 

/15/  IT WILL ALWAYS BE TRUE THAT THE FERTILE LEGAL "IMAGINATION CAN
CONJURE UP HYPOTHETICAL CASES IN WHICH THE MEANING OF (DISPUTED) TERMS
WILL BE IN NICE QUESTION."  AMERICA COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382, 412 (1950). 

/16/  "DIVERSION" IS DEFINED BY WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY AS "THE ACT OR AN INSTANCE OF DIVERTING FROM ONE COURSE OR
USE TO ANOTHER . . .:  THE ACT OR AN INSTANCE OF DIVERTING (AS THE MIND
OR ATTENTION) FROM SOME ACTIVITY OR CONCERN . . .:  A TURNING ASIDE . .
.:  SOMETHING THAT TURNS THE MIND FROM SERIOUS CONCERNS OR ORDINARY
MATTERS AND RELAXES OR AMUSES." 

/17/  CF. COX V. LOUISIANA, 379 U.S. 559, 568-569 (1965) ("NEAR" THE
COURTHOUSE NOT IMPERMISSIBLY VAGUE). 

/18/  SEE GREGORY V. CHICAGO, 394 U.S.,AT 119-120 (BLACK, J.,
CONCURRING); GOODING V. WILSON, 405 U.S.,AT 525-527; CRAIG V. HARNEY,
331 U.S. 367, 372 (1947); CF. CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568
(1942) (STATUTE PUNISHING "FIGHTING WORDS," THAT HAVE A "DIRECT
TENDENCY TO CAUSE ACTS OF VIOLENCE," UPHELD); STREET V. NEW YORK, 394
U.S. 576, 592 (1969). 

/19/  CF. CHICAGO V. TERMINELLO, 400 ILL. 23, 79 N.E.2D 39 (1948),
REVERSED ON OTHER GROUNDS, 337 U.S. 1, 6 (1949). 

/20/  SOME INTERMEDIATE APPELLATE COURTS IN ILLINOIS APPEAR TO HAVE
INTERPRETED THE PHRASE "TENDING TO" OUT OF THE CHICAGO ORDINANCE
ENTIRELY, AT LEASE IN SOME CONTEXTS.  CHICAGO V. HANSEN, 337 ILL.APP. 
663, 86 N.E.2D 415 (1949); CHICAGO V. HOLMES, 339 ILL.APP.  146, 88
N.E.2D 744 (1949); CHICAGO V. NESBITT, 19 ILL.APP.2D 220, 153 N.E.2D
259 (1958); BUT CF. CHICAGO V. WILLIAMS, 45 ILL.APP.2D 327, 195 N.E.2D
425 (1963).     IN ITS BRIEF, THE CITY OF ROCKFORD INDICATES THAT ITS
SOLE CONCERN IS WITH ACTUAL DISRUPTION.  "(A) COURT AND JURY (ARE)
CHARGED WITH THE DUTY OF DETERMINING WHETHER OR NOT . . . A SCHOOL HAS
BEEN DISRUPTED AND THAT THE DEFENDANT'S CONDUCT, (NO MATTER WHAT IT
WAS,) CAUSED OR CONTRIBUTED TO CAUSE THE DISRUPTION."  BRIEF FOR
APPELLEE 16.  THIS WAS THE THEORY ON WHICH THE CITY TRIED APPELLANT'S
CASE TO THE JURY, REPORT, SUPRA, N. 1, AT 12-13, ALTHOUGH THE JURY WAS
INSTRUCTED IN THE WORDS OF THE ORDINANCE.  AS ALREADY NOTED, SUPRA, N.
1, NO CHALLENGE IS MADE HERE TO THE ROCKFORD ORDINANCE AS APPLIED IN
THIS CASE. 

/21/  AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.,AT 412. 

/22/  CF. EDWARDS V. SOUTH CAROLINA, 372 U.S. 229 (1963); CANTWELL V.
CONNECTICUT, 310 U.S. 296, 308 (1940).  SIMILARLY, IN NUMEROUS OTHER
CASES, WE HAVE CONDEMNED BROADLY WORDED LICENSING ORDINANCES WHICH
GRANT SUCH STANDARDLESS DISCRETION TO PUBLIC OFFICIALS THAT THEY ARE
FREE TO CENSOR IDEAS AND ENFORCE THEIR OWN PERSONAL PREFERENCES. 
SHUTTLESWORTH V. BIRMINGHAM, 394 U.S. 147 (1969); STAUB V. CITY OF
BAXLEY, 355 U.S. 313 (1958); SAIA V. NEW YORK, 334 U.S. 558 (1948);
SCHNEIDER V. STATE, 308 U.S. 147, 163-164 (1939); LOVELL V. GRIFFIN,
303 U.S. 444 (1938); HAGUE V. CIO, 307 U.S. 496 (1939). 

/23/  CF. COX V. LOUISIANA, 379 U.S. 536, 546-550 (1965); EDWARDS V.
SOUTH CAROLINA, 372 U.S.,AT 234-237. 

/24/  TRACKING THE COMPLAINT, THE JURY VERDICT FOUND GRAYNED GUILTY
OF "(WILFULLY CAUSING DIVERSION OF GOOD ORDER OF PUBLIC SCHOOL IN
SESSION, IN THAT WHILE ON SCHOOL GROUNDS AND WHILE SCHOOL WAS IN
SESSION, DID WILFULLY MAKE AND ASSIST IN THE MAKING OF A DIVERSION
WHICH TENDED TO DISTURB THE PEACE AND GOOD ORDER OF THE SCHOOL SESSION
AND CLASS THEREOF." 

/25/  SHUTTLESWORTH V. BIRMINGHAM, 382 U.S.,AT 90. 

/26/  CHICAGO V. FORT, 46 ILL.2D 12, 16, 262 N.E.2D 473, 476 (1970),
A CASE CITED IN THE OPINION BELOW. 

/27/  SEE ZWICKLER V. KOOTA, 389 U.S. 241, 249-250 (1967), AND CASES
CITED. 

/28/  E.G., GOODING V. WILSON, 405 U.S. 518 (1972); COATES V.
CINCINNATI, 402 U.S.,AT 616; DOMBROWSKI V. PFISTER, 380 U.S.,AT 486,
AND CASES CITED; KUNZ V. NEW YORK, 340 U.S. 290 (1951). 

/29/  POLICE DEPARTMENT OF CHICAGO V. MOSLEY, ANTE, P. 92. 

/30/  COX V. NEW HAMPSHIRE, 312 U.S. 569, 575-576 (1941); KUNZ V.
NEW YORK, 340 U.S.,AT 293-294; POULOS V. NEW HAMPSHIRE, 345 U.S. 395,
398 (1953); COX V. LOUISIANA, 379 U.S.,AT 554-555; COX V. LOUISIANA,
379 U.S. 559 (1965); ADDERLEY V. FLORIDA, 385 U.S. 39, 46-48 (1966);
FOOD EMPLOYEES V. LOGAN VALLEY PLAZA, 391 U.S. 308, 320-321 (1968);
SHUTTLESWORTH V. BIRMINGHAM, 394 U.S. 147 (1969). 

/31/  POLICE DEPARTMENT OF CHICAGO V. MOSLEY, ANTE, AT 95-96, AND
CASES CITED. 

/32/  SEE GENERALLY T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION
328-345 (1970). 

/33/  WRIGHT, THE CONSTITUTION ON THE CAMPUS, 22 VAN.L.REV.  1027,
1042 (1969).  CF. COX V. LOUISIANA, 379 U.S. 559 (1965); ADDERLEY V.
FLORIDA, 385 U.S. 39 (1966); FOOD EMPLOYEES V. LOGAN VALLEY PLAZA, 391
U.S. 308 (1968); TINKER V. DES MOINES SCHOOL DISTRICT, 393 U.S. 503
(1969). 

/34/  E.G., SCHNEIDER V. STATE, 308 U.S. 147 (1939); TALLEY V.
CALIFORNIA, 362 U.S. 60 (1960); SAIA V. NEW YORK, 334 U.S., AT 562; COX
V. NEW HAMPSHIRE, 312 U.S.,AT 574; HAGUE V. CIO, 307 U.S.,AT 516.  SEE
GENERALLY KALVERN, THE CONCEPT OF THE PUBLIC FORUM:  COX V. LOUISIANA,
1965 SUP.CT.REV.  1. 

/35/  DE JONGE V. OREGON, 299 U.S. 353, 364-365 (1937); LOVELL V.
GRIFFIN, 303 U.S.,AT 451; SCHNEIDER V. STATE, 308 U.S.,AT 164; CANTWELL
V. CONNECTICUT, 310 U.S.,AT 307; COX V. LOUISIANA, 379 U.S.,AT 562-564;
DAVIS V. FRANCOIS, 395 F.2D 730 (CA5 1968).  CF. SHELTON V. TUCKER, 364
U.S. 479, 488 (1960); NAACP V. BUTTON, 371 U.S. 415, 438 (1963). 

/36/  FOOD EMPLOYEES V. LOGAN VALLEY PLAZA, 391 U.S.,AT 315. 

/37/  HAGUE V. CIO, 307 U.S.,AT 516. 

/38/  CF. HAGUE V. CIO, SUPRA, AT 516. 

/39/  IN TINKER WE RECOGNIZED THAT THE PRINCIPLE OF THAT CASE WAS
NOT LIMITED TO EXPRESSIVE ACTIVITY WITHIN THE SCHOOL BUILDING ITSELF. 
ID., AT 512 N. 6, 513-514.  SEE ESTEBAN V. CENTRAL MISSOURI STATE
COLLEGE, 415 F.2D 1077 (CA8 1969) (BLACKMUN, J.), CERT. DENIED, 398
U.S. 965 (1970); JONES V. BOARD OF REGENTS, 436 F.2D 618 (CA9 1970);
HAMMOND V. SOUTH CAROLINA STATE COLLEGE, 272 F.SUPP.  947 (SC 1967),
CITED IN TINKER. 

/40/  CF. THORNHILL V. ALABAMA, 310 U.S.,AT 102.  IT GOES WITHOUT
SAYING THAT "ONE IS NOT TO HAVE THE EXERCISE OF HIS LIBERTY OF
EXPRESSION IN APPROPRIATE PLACES ABRIDGED ON THE PLEA THAT IT MAY BE
EXERCISED IN SOME OTHER PLACE."  SCHNEIDER V. STATE, 308 U.S.,AT 163. 

/41/  CF. JONES V. BOARD OF REGENTS, SUPRA. 

/42/  CF. BARKER V. HARDWAY, 283 F.SUPP.  228 (SD W. VA.), AFF'D,
399 F.2D 638 (CA4 1968), CERT. DENIED, 394 U.S. 905 (1969) (FORTAS, J.,
CONCURRING). 

/43/  SEE JONES V. BOARD OF REGENTS, SUPRA; HAMMOND V. SOUTH
CAROLINA STATE COLLEGE, SUPRA. 

/44/  COMPARE SCOVILLE V. BOARD OF EDUCATION, 425 F.2D 10 (CA7),
CERT. DENIED, 400 U.S. 826 (1970); DICKEY V. ALABAMA STATE BOARD OF
EDUCATION, 273 F.SUPP.  613 (MD ALA. 1967) (CITED IN TINKER). 

/45/  DIFFERENT CONSIDERATIONS, OF COURSE, APPLY IN DIFFERENT
CIRCUMSTANCES.  FOR EXAMPLE, RESTRICTIONS APPROPRIATE TO A SINGLE
BUILDING HIGH SCHOOL DURING CLASS HOURS WOULD BE INAPPROPRIATE IN MANY
OPEN AREAS ON A COLLEGE CAMPUS, JUST AS AN ASSEMBLY THAT IS PERMITTED
OUTSIDE A DORMITORY WOULD BE INAPPROPRIATE IN THE MIDDLE OF A
MATHEMATICS CLASS. 

/46/  NOTING THE NEED "TO ASSURE THAT THE ADMINISTRATION OF JUSTICE
AT ALL STAGES IS FREE FROM OUTSIDE CONTROL AND INFLUENCE," WE
EMPHASIZED THAT "(A) STATE MAY PROTECT AGAINST THE POSSIBILITY OF A
CONCLUSION BY THE PUBLIC . . . (THAT A) JUDGE'S ACTION WAS IN PART A
PRODUCT OF INTIMIDATION AND DID NOT FLOW ONLY FROM THE FAIR AND ORDERLY
WORKING OF THE JUDICIAL PROCESS."  379 U.S.,AT 562, 565. 

/47/  QUOTING SCHNEIDER V. STATE, 308 U.S.,AT 161, 23 NOTED THAT
"'SUCH ACTIVITY BEARS NO NECESSARY RELATIONSHIP TO THE FREEDOM TO . . .
DISTRIBUTE INFORMATION OR OPINION.'"  390 U.S.,AT 617. 

/48/  CF. GARNER V. LOUISIANA, 368 U.S.,AT 202-203 (HARLAN, J.,
CONCURRING IN JUDGMENT). 

/49/  CF. ADDERLEY V. FLORIDA, 385 U.S. 39 (1966).  IN ADDERLEY, THE
COURT HELD THAT DEMONSTRATORS COULD BE BARRED FROM JAILHOUSE GROUNDS
NOT ORDINARILY OPEN TO THE PUBLIC, AT LEAST WHERE THE DEMONSTRATION
OBSTRUCTED THE JAIL DRIVEWAY AND INTERFERED WITH THE FUNCTIONING OF THE
JAIL.  IN TINKER WE NOTED THAT "A SCHOOL IS NOT LIKE A HOSPITAL OR A
JAIL ENCLOSURE."  393 U.S.,AT 512 N. 6. 

/50/  IT IS POSSIBLE, OF COURSE, THAT THERE WILL BE UNCONSTITUTIONAL
APPLICATIONS; BUT THAT IS NOT A MATTER WHICH PRESENTLY CONCERNS US.
SEE SHUTTLESWORTH V. BIRMINGHAM, 382 U.S.,AT 91, AND N. 1, SUPRA. 

MR. JUSTICE BLACKMUN JOINS IN THE JUDGMENT AND IN PART I OF THE
OPINION OF THE COURT.  HE CONCURS IN THE RESULT AS TO PART II OF THE
OPINION. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

WHILE I JOIN PART I OF THE COURT'S OPINION, I WOULD ALSO REVERSE THE
APPELLANT'S CONVICTION UNDER THE ANTINOISE ORDINANCE. 

THE MUNICIPAL ORDINANCE ON WHICH THIS CASE TURNS IS C. 28, SEC.
19.2(A) WHICH PROVIDES IN RELEVANT PART: 

     "THAT NO PERSON, WHILE ON PUBLIC OR PRIVATE GROUNDS ADJACENT
TO

  ANY BUILDING IN WHICH A SCHOOL OR ANY CLASS THEREOF IS IN

  SESSION, SHALL WILLFULLY MAKE OR ASSIST IN THE MAKING OF ANY

NOISE OR DIVERSION WHICH DISTURBS OR TENDS TO DISTURB THE PEACE

  OR GOOD ORDER OF SUCH SCHOOL SESSION OR CLASS THEREOF." 

APPELLANT WAS ONE OF 200 PEOPLE PICKETING A SCHOOL AND CARRYING
SIGNS PROMOTING A BLACK CAUSE-- "BLACK CHEERLEADERS TO CHEER TOO,"
"BLACK HISTORY WITH BLACK TEACHERS," "WE WANT OUR RIGHTS," AND THE
LIKE.  APPELLANT, HOWEVER, DID NOT HIMSELF CARRY A PICKET SIGN.  THERE
WAS NO EVIDENCE THAT HE YELLED OR MADE ANY NOISE WHATSOEVER.  INDEED,
THE EVIDENCE REVEALS THAT APPELLANT SIMPLY MARCHED QUIETLY AND ON ONE
OCCASION RAISED HIS ARM IN THE "POWER TO THE PEOPLE" SALUTE. 

THE PICKETS WERE MOSTLY STUDENTS; BUT THEY INCLUDED FORMER STUDENTS,
PARENTS OF STUDENTS, AND CONCERNED CITIZENS.  THEY HAD MADE PROPOSALS
TO THE SCHOOL BOARD ON THEIR DEMANDS AND WERE TURNED DOWN.  HENCE THE
PICKETING.  THE PICKETING WAS MOSTLY BY BLACK STUDENTS WHO WERE
COUNSELED AND ADVISED BY A FACULTY MEMBER OF THE SCHOOL.  THE SCHOOL
CONTAINED 1,800 STUDENTS.  THOSE COUNSELING THE STUDENTS ADVISED THEY
MUST BE QUIET, WALK HAND IN HAND, NO WHISPERING, NO TALKING. 

TWENTY-FIVE POLICEMEN WERE STATIONED NEARBY.  THERE WAS NOISE BUT
MOST OF IT WAS PRODUCED BY THE POLICE WHO USED LOUDSPEAKERS TO EXPLAIN
THE LOCAL ORDINANCE AND TO ANNOUNCE THAT ARRESTS MIGHT BE MADE.  THE
PICKETING DID NOT STOP, AND SOME 40 DEMONSTRATORS, INCLUDING APPELLANT,
WERE ARRESTED. 

THE PICKETING LASTED 20 TO 30 MINUTES AND SOME STUDENTS WENT TO THE
WINDOWS OF THE CLASSROOMS TO OBSERVE IT.  IT IS NOT CLEAR HOW MANY
THERE WERE.  THE PICKETING WAS HOWEVER, ORDERLY OR, AS ONE OFFICER
TESTIFED, "VERY ORDERLY."  THERE WAS NO VIOLENCE.  AND APPELLANT MADE
NO NOISE WHATEVER. 

WHAT MR. JUSTICE ROBERTS SAID IN HAGUE V. CIO, 307 U.S. 496, 515
516, HAS NEVER BEEN QUESTIONED: 

"WHEVER 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." 

WE HELD IN COX V. LOUISIANA, 379 U.S. 536, 544-545, THAT A STATE COULD
NOT INFRINGE THE RIGHT OF FREE SPEECH AND FREE ASSEMBLY BY CONVICTING
DEMONSTRATORS UNDER A "DISTURBING THE PEACE" ORDINANCE WHERE ALL THAT
THE STUDENTS IN THAT CASE DID WAS TO PROTEST SEGREGATION AND
DISCRIMINATION AGAINST BLACKS BY PEACEABLY ASSEMBLING AND MARCHING TO
THE COURTHOUSE WHERE THEY SANG, PRAYED, AND LISTENED TO A SPEECH, BUT
WHERE THERE WAS NO VIOLENCE, NO RIOTING, NO BOISTEROUS CONDUCT. 

THE SCHOOL WHERE THE PRESENT PICKETING OCCURRED WAS THE CENTER OF A
RACIAL CONFLICT.  MOST OF THE PICKETS WERE INDEED STUDENTS IN THE
SCHOOL.  THE DISPUTE DOUBTLESS DISTURBED THE SCHOOL; AND THE BLARING OF
THE LOUDSPEAKERS OF THE POLICE WAS CERTAINLY A "NOISE OR DIVERSION" IN
THE MEANING OF THE ORDINANCE.  BUT THERE WAS NO EVIDENCE THAT APPELLANT
WAS NOISY OR BOISTEROUS OR ROWDY.  HE WALKED QUIETLY AND IN AN ORDERLY
MANNER.  AS I READ THIS RECORD, THE DISRUPTIVE FORCE LOOSED AT THIS
SCHOOL WAS AN ISSUE DEALING WITH RACE-- AN ISSUE THAT IS PREEMINENTLY
ONE FOR SOLUTION BY FIRST AMENDMENT MEANS.  /1/  THAT IS ALL THAT WAS
DONE HERE; AND THE ENTIRE PICKETING, INCLUDING APPELLANT'S PART IN IT,
WAS DONE IN THE BEST FIRST AMENDMENT TRADITION. 

/1/  THE MAJORITY ASSERTS THAT "APPELLANT'S SOLE CLAIM . . . IS THAT
HE WAS CONVICTED UNDER FACIALLY UNCONSTITUTIONAL ORDINANCES" AND THAT
THERE IS, THEREFORE, NO OCCASION TO CONSIDER WHETHER HIS ACITIVITES
WERE PROTECTED BY THE FIRST AMENDMENT.  ANTE, AT 106 N. 1.  APPELLANT
ARGUES, HOWEVER, THAT THE ORDINANCE IS OVERLY BROAD IN THAT IT PUNISHES
CONSTITUTIONALLY PROTECTED ACTIVITY.  A STATUTE MAY WITHSTAND AN
OVERBREADTH ATTACK "ONLY IF, AS AUTHORITATIVELY CONSTRUED . . . , IT IS
NOT SUSCEPTIBLE OF APPLICATION TO SPEECH . . . THAT IS PROTECTED BY THE
FIRST AND FOURTEENTH AMENDMENTS."  GOODING V. WILSON, 405 U.S. 518, 520
(1972).  IF THE ORDINANCE APPLIES TO APPELLANT'S ACTIVITIES AND IF
APPELLANT'S ACTIVITIES ARE CONSTITUTIONALLY PROTECTED, THEN THE
ORDINANCE IS OVERLY BROAD AND, THUS, UNCONSTITUTIONAL.  THERE IS NO
MERIT, THEREFORE, TO THE COURT'S SUGGESTION THAT THE QUESTION WHETHER
"APPELLANT'S PARTICULAR BEHAVIOR WAS PROTECTED BY THE FIRST AMENDMENT,"
ANTE, AT 106 N. 1, IS NOT PRESENTED. 

SOPHIA H. HALL ARGUED THE CAUSE FOR APPELLANT.  WITH HER ON THE
BRIEFS WERE WILLIAM R. MING, JR., AND ALDUS S. MITCHELL. 

WILLIAM E. COLLINS ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE A. CURTIS WASHBURN AND CHARLES F. THOMAS. 
..END :

















UNITED STATES V. BYRUM, 408 U.S. 125 


       UNITED STATES V. BYRUM, EXECUTRIX

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

   SIXTH CIRCUIT

        NO. 71-308.  ARGUED MARCH 1, 1972-- DECIDED JUNE 26, 1972 


DECEDENT TRANSFERRED TO AN IRREVOCABLE TRUST FOR THE BENEFIT OF HIS
CHILDREN (AND IF THEY DIED BEFORE THE TRUST ENDED, THEIR SURVIVING
CHILDREN) STOCK IN THREE UNLISTED CORPORATIONS THAT HE CONTROLLED,
RETAINING THE RIGHT TO VOTE THE TRANSFERRED STOCK, TO VETO THE TRANSFER
BY THE TRUSTEE (A BANK) OF ANY OF THE STOCK, AND TO REMOVE THE TRUSTEE
AND APPOINT ANOTHER CORPORATE TRUSTEE AS SUCCESSOR.  THE RIGHT TO VOTE
THE TRANSFERRED STOCK, TOGETHER WITH THE VOTE OF THE STOCK DECEDENT
OWNED AT THE TIME OF HIS DEATH, GAVE HIM A MAJORITY VOTE IN EACH OF THE
CORPORATIONS.  THE COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THE
TRANSFERRED STOCK WAS INCLUDABLE IN DECEDENT'S GROSS ESTATE UNDER SEC.
2036(A) OF THE INTERNAL REVENUE CODE OF 1954, WHICH REQURIES THE
INCLUSION IN A DECEDENT'S GROSS ESTATE OF THE VALUE OF ANY PROPERTY HE
HAS TRANSFERRED BY INTER VIVOS GIFT, IF HE RETAINED FOR HIS LIFETIME
"(1) THE . . . ENJOYMENT OF . . . THE PROPERTY TRANSFERRED, OR (2) THE
RIGHT, EITHER ALONE OR IN CONJUNCTION WITH ANY PERSON, TO DESIGNATE THE
PERSONS WHO SHALL . . . ENJOY . . . THE INCOME THEREFROM."  THE
COMMISSIONER CLAIMED THAT DECEDENT'S RIGHT TO VOTE THE TRANSFERRED
SHARES AND TO VETO ANY SALE BY THE TRUSTEE, TOGETHER WITH THE OWNERSHIP
OF OTHER SHARES, MADE THE TRANSFERRED SHARES INCLUDABLE UNDER SEC.
2036(A)(2), BECAUSE DECEDENT RETAINED CONTROL OVER CORPORATE DIVIDEND
POLICY AND, BY REGULATING THE FLOW OF INCOME TO THE TRUST, COULD SHIFT
OR DEFER THE BENEFICIAL ENJOYMENT OF TRUST INCOME BETWEEN THE PRESENT
BENEFICIARIES AND REMAINDERMEN, AND UNDER SEC. 2036(A)(1) BECAUSE, BY
REASON OF DECEDENT'S RETAINED CONTROL OVER THE CORPORATIONS, HE HAD THE
RIGHT TO CONTINUE TO BENEFIT ECONOMICALLY FROM THE TRANSFERRED SHARES
DURING HIS LIFETIME.  HELD: 

1.  DECEDENT DID NOT RETAIN THE "RIGHT," WITHIN THE MEANING OF SEC.
2036(A)(2), TO DESIGNATE WHO WAS TO ENJOY THE TRUST INCOME.  PP. 131
144. 

     (A) A SETTLOR'S RETENTION OF BROAD MANAGEMENT POWERS DID NOT

  NECESSARILY SUBJECT AN INTER VIVOS TRUST TO THE FEDERAL ESTATE

  TAX.  PP. 131-135. 

     (B) IN VIEW OF LEGAL AND BUSINESS CONSTRAINTS APPLICABLE TO
THE

  PAYMENT OF DIVIDENDS, ESPECIALLY WHERE THERE ARE MINORITY

  STOCKHOLDERS, DECEDENT'S RIGHT TO VOTE A MAJORITY OF THE SHARES

  IN THESE CORPORATIONS DID NOT GIVE HIM A DE FACTO POSITION

  TANTAMOUNT TO THE POWER TO ACCUMULATE INCOME IN THE TRUST.  PP.

  135-144. 

2.  DECEDENT'S VOTING CONTROL OF THE STOCK DID NOT CONSTITUTE
RETENTION OF THE ENJOYMENT OF THE TRANSFERRED STOCK WITHIN THE MEANING
OF SEC. 2036(A)(1), SINCE THE DECEDENT HAD TRANSFERRED IRREVOCABLY THE
TITLE TO THE STOCK AND RIGHT TO THE INCOME THEREFROM.  PP. 145-150. 

440 F.2D 949, AFFIRMED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, STEWART, MARSHALL, AND REHNQUIST, JJ., JOINED. 
WHITE, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND BLACKMUN,
JJ., JOINED, POST, P. 151. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

DECEDENT, MILLIKEN C. BYRUM, CREATED IN 1958 AN IRREVOCABLE TRUST TO
WHICH HE TRANSFERRED SHARES OF STOCK IN THREE CLOSELY HELD
CORPORATIONS.  PRIOR TO TRANSFER, HE OWNED AT LEAST 71% OF THE
OUTSTANDING STOCK OF EACH CORPORATION.  THE BENEFICIARIES WERE HIS
CHILDREN OR, IN THE EVENT OF THEIR DEATH BEFORE THE TERMINATION OF THE
TRUST, THEIR SURVIVING CHILDREN.  THE TRUST INSTRUMENT SPECIFIED THAT
THERE BE A CORPORATE TRUSTEE.  BYRUM DESIGNATED AS SOLE TRUSTEE AN
INDEPENDENT CORPORATION, HUNTINGTON NATIONAL BANK.  THE TRUST AGREEMENT
VESTED IN THE TRUSTEE BROAD AND DETAILED POWERS WITH RESPECT TO THE
CONTROL AND MANAGEMENT OF THE TRUST PROPERTY.  THESE POWERS WERE
EXERCISABLE IN THE TRUSTEE'S SOLE DISCRETION, SUBJECT TO CERTAIN RIGHTS
RESERVED BY BYRUM:  (I) TO VOTE THE SHARES OF UNLISTED STOCK HELD IN
THE TRUST ESTATE; (II) TO DISAPPROVE THE SALE OR TRANSFER OF ANY TRUST
ASSETS, INCLUDING THE SHARES TRANSFERRED TO THE TRUST; (III) TO APPROVE
INVESTMENTS AND REINVESTMENTS; AND (IV) TO REMOVE THE TRUSTEE AND
"DESIGNATE ANOTHER CORPORATE TRUSTEE TO SERVE AS SUCCESSOR."  UNTIL THE
YOUNGEST LIVING CHILD REACHED AGE 21, THE TRUSTEE WAS AUTHORIZED IN ITS
"ABSOLUTE AND SOLE DISCRETION" TO PAY THE INCOME AND PRINCIPAL OF THE
TRUST TO OR FOR THE BENEFIT OF THE BENEFICIARIES, "WITH DUE REGARD TO
THEIR INDIVIDUAL NEEDS FOR EDUCATION, CARE, MAINTENANCE AND SUPPORT." 
AFTER THE YOUNGEST CHILD REACHED 21, THE TRUST WAS TO BE DIVIDED INTO A
SEPARATE TRUST FOR EACH CHILD, TO TERMINATE WHEN THE BENEFICIARIES
REACHED 35.  THE TRUSTEE WAS AUTHORIZED IN ITS DISCRETION TO PAY INCOME
AND PRINCIPAL FROM THESE TRUSTS TO THE BENEFICIARIES FOR EMERGENCY OR
OTHER "WORTHY NEED,"  INCLUDING EDUCATION.  /1/ 

WHEN HE DIED IN 1964, BYRUM OWNED LESS THAN 50% OF THE COMMON STOCK
IN TWO OF THE CORPORATIONS AND 59% IN THE THIRD.  THE TRUST HAD
RETAINED THE SHARES TRANSFERRED TO IT, WITH THE RESULT THAT BYRUM HAD
CONTINUED TO HAVE THE RIGHT TO VOTE NOT LESS THAN 71% OF THE COMMON
STOCK IN EACH OF THE THREE CORPORATIONS.  /2/  THERE WERE MINORITY
STOCKHOLDERS, UNRELATED TO BYRUM, IN EACH CORPORATION. 

FOLLOWING BYRUM'S DEATH, THE COMMISSIONER OF INTERNAL REVENUE
DETERMINED THAT THE TRANSFERRED STOCK WAS PROPERLY INCLUDED WITHIN
BYRUM'S GROSS ESTATE UNDER SEC. 2036(A) OF THE INTERNAL REVENUE CODE OF
1954, 26 U.S.C. 2036(A).  THAT SECTION PROVIDES FOR THE INCLUSION IN A
DECEDENT'S GROSS ESTATE OF ALL PROPERTY WHICH THE DECEDENT HAS
TRANSFERRED BY INTER VIVOS TRANSACTION, IF HE HAS RETAINED FOR HIS
LIFETIME "(1) THE POSSESSION OR ENJOYMENT OF, OR THE RIGHT TO THE
INCOME FROM, THE PROPERTY" TRANSFERRED, OR "(2) THE RIGHT, EITHER ALONE
OR IN CONJUNCTION WITH ANY PERSON, TO DESIGNATE THE PERSONS WHO SHALL
POSSESS OR ENJOY THE PROPERTY OR THE INCOME THEREFROM."  /3/  THE
COMMISSIONER DETERMINED THAT THE STOCK TRANSFERRED INTO THE TRUST
SHOULD BE INCLUDED IN BYRUM'S GROSS ESTATE BECAUSE OF THE RIGHTS
RESERVED BY HIM IN THE TRUST AGREEMENT.  IT WAS ASSERTED THAT HIS RIGHT
TO VOTE THE TRANSFERRED SHARES AND TO VETO ANY SALE THEREOF BY THE
TRUSTEE, TOGETHER WITH THE "ENJOYMENT OF . . . THE PROPERTY," AND ALSO
ALLOWED HIM TO DETERMINE THE FLOW OF INCOME TO THE TRUST AND THEREBY
"DESIGNATE THE PERSONS WHO SHALL . . . ENJOY . . . THE INCOME." 

THE EXECUTRIX OF BYRUM'S ESTATE PAID AN ADDITIONAL TAX OF
$13,202.45, AND THEREAFTER BROUGHT THIS REFUND ACTION IN DISTRICT
COUIRT.  THE FACTS NOT BEING IN DISPUTE, THE COURT RULED FOR THE
EXECUTRIX ON CROSS MOTIONS FOR SUMMARY JUDGMENT.  311 F.SUPP.  892 (SD
OHIO 1970).  THE COURT OF APPEALS AFFIRMED, ONE JUDGE DISSENTING.  440
F.2D 949 (CA6 1971).  WE GRANTED THE GOVERNMENT'S PETITION FOR
CERTIORARI.  404 U.S. 937 (1971). 

        I 

THE GOVERNMENT RELIES PRIMARILY ON ITS CLAIM, MADE UNDER SEC.
2036(A)(2), THAT BYRUM RETAINED THE RIGHT TO DESIGNATE THE PERSONS WHO
SHALL ENJOY THE INCOME FROM THE TRANSFERRED PROPERTY.  THE ARGUMENT IS
A COMPLICATED ONE.  BY RETAINING VOTING CONTROL OVER THE CORPORATIONS
WHOSE STOCK WAS TRANSFERRED, BYRUM WAS IN A POSITION TO SELECT THE
CORPORATE DIRECTORS.  HE COULD RETAIN THIS POSITION BY NOT SELLING THE
SHARES HE OWNED AND BY VETOING ANY SALE BY THE TRUSTEE OF THE
TRANSFERRED SHARES.  THESE RIGHTS, IT IS SAID, GAVE HIM CONTROL OVER
CORPORATE DIVIDEND POLICY.  BY INCREASING, DECREASING, OR STOPPING
DIVIDENDS COMPLETELY, IT IS ARGUED THAT BYRUM COULD "REGULATE THE FLOW
OF INCOME TO THE TRUST" AND THEREBY SHIFT OR DEFER THE BENEFICIAL
ENJOYMENT OF TRUST INCOME BETWEEN THE PRESENT BENEFICIARIES AND THE
REMAINDERMEN.  THE SUM OF THIS RETAINED POWER IS SAID TO BE TANTAMOUNT
TO A GRANTOR-TRUSTEE'S POWER TO ACCUMULATE INCOME IN THE TRUST, WHICH
THIS COURT HAS RECOGNIZED CONSTITUTES THE POWER TO DESIGNATE THE
PERSONS WHO SHALL ENJOY THE INCOME FROM TRANSFERRED PROPERTY.  /4/ 

AT THE OUTSET WE OBSERVE THAT THIS COURT HAS NEVER HELD THAT TRUST
PROPERTY MUST BE INCLUDED IN A SETTLOR'S GROSS ESTATE SOLELY BECAUSE
THE SETTLOR RETAINED THE POWER TO MANAGE TRUST ASSETS.  ON THE
CONTRARY, SINCE OUR DECISION IN REINECKE V. NORTHERN TRUST CO., 278
U.S. 339 (1929), IT HAS BEEN RECOGNIZED THAT A SETTLOR'S RETENTION OF
BROAD POWERS OF MANAGEMENT DOES NOT NECESSARILY SUBJECT AN INTER VIVOS
TRUST TO THE FEDERAL ESTATE TAX.  /5/  ALTHOUGH THERE WAS NO STATUTORY
ANALOGUE TO SEC. 2036(A)(2) WHEN NORTHERN TRUST WAS DECIDED, SEVERAL
LOWER COURT DECISIONS DECIDED AFTER THE ENACTMENT OF THE PREDECESSOR OF
SEC. 2036(A)(2) HAVE UPHELD THE SETTLOR'S RIGHT TO EXERCISE MANAGERIAL
POWERS WITHOUT INCURRING ESTATE-TAX LIABILITY.  /6/  IN ESTATE OF KING
V. COMMISSIONER, 37 T.C. 973 (1962), A SETTLOR RESERVED THE POWER TO
DIRECT THE TRUSTEE IN THE MANAGEMENT AND INVESTMENT OF TRUST ASSETS. 
THE GOVERNMENT ARGUED THAT THE SETTLOR WAS THEREBY EMPOWERED TO CAUSE
INVESTMENTS TO BE MADE IN SUCH A MANNER AS TO CONTROL SIGNIFICANTLY THE
FLOW OF INCOME INTO THE TRUST.  THE TAX COURT REJECTED THIS ARGUMENT,
AND HELD FOR THE TAXPAYER.  ALTHOUGH THE COURT RECOGNIZED THAT THE
SETTLOR HAD RESERVED "WIDE LATITUDE IN THE EXERCISE OF HIS DISCRETION
AS TO THE TYPES OF INVESTMENTS TO BE MADE,"  ID., AT 980, IT DID NOT
FIND THIS CONTROL OVER THE FLOW OF INCOME TO BE EQUIVALENT TO THE POWER
TO DESIGNATE WHO SHALL ENJOY THE INCOME FROM THE TRANSFERRED PROPERTY. 

ESSENTIALLY THE POWER RETAINED BY BYRUM IS THE SAME MANAGERIAL POWER
RETAINED BY THE SETTLORS IN NORTHERN TRUST AND IN KING.  ALTHOUGH
NEITHER CASE CONTROLS THIS ONE-- NORTHERN TRUST, BECAUSE IT WAS NOT
DECIDED UNDER SEC. 2036(A)(2) OR A PREDECESSOR; AND KING, BECAUSE IT IS
A LOWER COURT OPINION-- THE EXISTENCE OF SUCH PRECEDENTS CARRIES
WEIGHT.  /7/  THE HOLDING OF NORTHERN TRUST, THAT THE SETTLOR OF A
TRUST MAY RETAIN BROAD POWERS OF MANAGEMENT WITHOUT ADVERSE ESTATE-TAX
CONSEQUENCES, MAY HAVE BEEN RELIED UPON IN THE DRAFTING OF HUNDREDS OF
INTER VIVOS TRUSTS.  /8/  THE MODIFICATION OF THIS PRINCIPLE NOW SOUGHT
BY THE GOVERNMENT COULD HAVE A SERIOUSLY ADVERSE IMPACT, ESPECIALLY
UPON SETTLORS (AND THEIR ESTATES) WHO HAPPEN TO HAVE BEEN "CONTROLLING"
STOCKHOLDERS OF A CLOSELY HELD CORPORATION.  COURTS PROPERLY HAVE BEEN
RELUCTANT TO DEPART FROM AN INTERPRETATION OF TAX LAW WHICH HAS BEEN
GENERALLY ACCEPTED WHEN THE DEPARTURE COULD HAVE POTENTIALLY FAR
REACHING CONSEQUENCES.  WHEN A PRINCIPLE OF TAXATION REQUIRES RE
EXAMINATION, CONGRESS IS BETTER EQUIPPED THAN A COURT TO DEFINE
PRECISELY THE TYPE OF CONDUCT WHICH RESULTS IN TAX CONSEQUENCES.  WHEN
COURTS READILY UNDERTAKE SUCH TASKS, TAXPAYERS MAY NOT RELY WITH
ASSURANCE ON WHAT APPEAR TO BE ESTABLISHED RULES LEST THEY BE
SUBSEQUENTLY OVERTURNED.  LEGISLATIVE ENACTMENTS, ON THE OTHER HAND,
ALTHOUGH NOT ALWAYS FREE FROM AMBIGUITY, AT LEAST AFFORD THE TAXPAYERS
ADVANCE WARNING. 

THE GOVERNMENT ARGUES, HOWEVER, THAT OUR OPINION IN UNITED STATES V.
O'MALLEY, 383 U.S. 627 (1966), COMPELS THE INCLUSION IN BYRUM'S ESTATE
OF THE STOCK OWNED BY THE TRUST.  IN O'MALLEY, THE SETTLOR OF AN INTER
VIVOS TRUST NAMED HIMSELF AS ONE OF THE THREE TRUSTEES.  THE TRUST
AGREEMENT AUTHORIZED THE TRUSTEES TO PAY INCOME TO THE LIFE BENEFICIARY
OR TO ACCUMULATE IT AS A PART OF THE PRINCIPAL OF THE TRUST IN THEIR
"SOLE DISCRETION."  THE AGREEMENT FURTHER PROVIDED THAT NET INCOME
RETAINED BY THE TRUSTEES, AND NOT DISTRIBUTED IN ANY CALENDAR YEAR,
"'SHALL BECOME A PART OF THE PRINCIPAL OF THE TRUST ESTATE.'"  ID., AT
629 N. 2.  THE COURT CHARACTERIZED THE EFFECT OF THE TRUST AS FOLLOWS: 

"HERE FABRICE (THE SETTLOR) WAS EMPOWERED, WITH THE OTHER TRUSTEES,
TO DISTRIBUTE THE TRUST INCOME TO THE INCOME BENEFICIARIES OR TO
ACCUMULATE IT AND ADD IT TO THE PRINCIPAL, THEREBY DENYING TO THE
BENEFICIARIES THEIR EVENTUAL ENJOYMENT UPON SURVIVING THE TERMINATION
OF THE TRUST."  ID., AT 631.  AS THE RETENTION OF THIS LEGAL RIGHT BY
THE SETTLOR, ACTING AS A TRUSTEE "IN CONJUNCTION" WITH THE OTHER
TRUSTEES, CAME SQUARELY WITHIN THE LANGUAGE AND INTENT OF THE
PREDECESSOR OF SEC. 2036(A)(2), THE TAXPAYER CONCEDED THAT THE ORIGINAL
ASSETS TRANSFERRED INTO THE TRUST WERE INCLUDABLE IN THE DECEDENT'S
GROSS ESTATE.  ID., AT 632.  THE ISSUE BEFORE THE COURT WAS WHETHER THE
ACCUMULATED INCOME, WHICH HAD BEEN ADDED TO THE PRINCIPAL PURSUANT TO
THE RESERVATION OF RIGHT IN THAT RESPECT, WAS ALSO INCLUDABLE IN
DECEDENT'S ESTATE FOR TAX PURPOSES.  THE COURT HELD THAT IT WAS. 

IN OUR VIEW, AND FOR THE PURPOSES OF THIS CASE, O'MALLEY ADDS
NOTHING TO THE STATUTE ITSELF.  THE FACTS IN THAT CASE WERE CLEARLY
WITHIN THE AMBIT OF WHAT IS NOW SEC. 2036(A).  THAT SECTION REQUIRES
THAT THE SETTLOR MUST HAVE "RETAINED FOR HIS LIFE . . . (2) THE RIGHT .
. . TO DESIGNATE THE PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR
THE INCOME THEREFROM."  O'MALLEY WAS COVERED PRECISELY BY THE STATUTE
FOR TWO REASONS:  (1) THERE THE SETTLOR HAD RESERVED A LEGAL RIGHT, SET
FORTH IN THE TRUST INSTRUMENT; AND (2) THIS RIGHT EXPRESSLY AUTHORIZED
THE SETTLOR, "IN CONJUNCTION" WITH OTHERS, TO ACCUMULATE INCOME AND
THEREBY "TO DESIGNATE" THE PERSONS TO ENJOY IT. 

IT MUST BE CONCEDED THAT BYRUM RESERVED NO SUCH "RIGHT" IN THE TRUST
INSTRUMENT OR OTHERWISE.  THE TERM "RIGHT," CERTAINLY WHEN USED IN A
TAX STATUTE, MUST BE GIVEN ITS NORMAL AND CUSTOMARY MEANING.  IT
CONNOTES AN ASCERTAINABLE AND LEGALLY ENFORCEABLE POWER, SUCH AS THAT
INVOLVED IN O'MALLEY.  /9/  HERE, THE RIGHT ASCRIBED TO BYRUM WAS THE
POWER TO USE HIS MAJORITY POSITION AND INFLUENCE OVER THE CORPORATE
DIRECTORS TO "REGULATE AND FLOW OF DIVIDENDS" TO THE TRUST.  THAT
"RIGHT" WAS NEITHER ASCERTAINABLE NOR LEGALLY ENFORCEABLE AND HENCE WAS
NOT A RIGHT IN ANY NORMAL SENSE OF THAT TERM.  /10/ 

BYRUM DID RETAIN THE LEGAL RIGHT TO VOTE SHARES HELD BY THE TRUST
AND TO VETO INVESTMENTS AND REINVESTMENTS.  BUT THE CORPORATE TRUSTEE
ALONE, NOT BYRUM, HAD THE RIGHT TO PAY OUT OR WITHHOLD INCOME AND
THEREBY TO DESIGNATE WHO AMONG THE BENEFICIARIES ENJOYED SUCH INCOME. 
WHATEVER POWER BYRUM MAY HAVE POSSESSED WITH RESPECT TO THE FLOW OF
INCOME INTO THE TRUST WAS DERIVED NOT FROM AN ENFORCEABLE LEGAL RIGHT
SPECIFIED IN THE TRUST INSTRUMENT, BUT FROM THE FACT THAT HE COULD
ELECT A MAJORITY OF THE DIRECTORS OF THE THREE CORPORATIONS.  THE POWER
TO ELECT THE DIRECTORS CONFERRED NO LEGAL RIGHT TO COMMAND THEM TO PAY
OR NOT TO PAY DIVIDENDS.  A MAJORITY SHAREHOLDER HAS A FIDUCIARY DUTY
NOT TO MISUSE HIS POWER BY PROMOTING HIS PERSONAL INTERESTS AT THE
EXPENSE OF CORPORATE INTERESTS.  /11/  MOREOVER, THE DIRECTORS ALSO
HAVE A FIDUCIARY DUTY TO PROMOTE THE INTERESTS OF THE CORPORATION. 
/12/  HOWEVER GREAT BYRUM'S INFLUENCE MAY HAVE BEEN WITH THE CORPORATE
DIRECTORS, THEIR RESPONSIBILITIES WERE TO ALL STOCKHOLDERS AND WERE
ENFORCEABLE ACCORDING TO LEGAL STANDARDS ENTIRELY UNRELATED TO THE
NEEDS OF THE TRUST OR TO BYRUM'S DESIRES WITH RESPECT THERETO. 

THE GOVERNMENT SEEKS TO EQUATE THE DE FACTO POSITION OF A
CONTROLLING STOCKHOLDER WITH THE LEGALLY ENFORCEABLE "RIGHT" SPECIFIED
BY THE STATUTE.  RETENTION OF CORPORATE CONTROL (THROUGH THE RIGHT TO
VOTE THE SHARES) IS SAID TO BE "TANTAMOUNT TO THE POWER TO ACCUMULATE
INCOME" IN THE TRUST WHICH RESULTED IN ESTATE-TAX CONSEQUENCES IN
O'MALLEY.  THE GOVERNMENT GOES ON TO ASSERT THAT "(THROUGH EXERCISE OF
THAT RETAINED POWER, (BYRUM) COULD INCREASE OR DECREASE CORPORATE
DIVIDENDS . . . AND THEREBY SHIFT OR DEFER THE BENEFICIAL ENJOYMENT OF
TRUST INCOME."  /13/  THIS APPROACH SEEMS TO US NOT ONLY TO DEPART FROM
THE SPECIFIC STATUTORY LANGUAGE, /14/  BUT ALSO TO MISCONCEIVE THE
REALITIES OF CORPORATE LIFE. 

THERE IS NO REASON TO SUPPOSE THAT THE THREE CORPORATIONS CONTROLLED
BY BYRUM WERE OTHER THAN TYPICAL SMALL BUSINESS.  THE CUSTOMARY
VICISSITUDES OF SUCH ENTERPRISES-- BAD YEARS; PRODUCT OBSOLESCENCE; NEW
COMPETITIONER; DIASTROUS LITIGATION; NEW, INHIBITING GOVERNMENT
REGULATIONS; EVEN BANKRUPTCY-- PREVENT ANY CERTAINTY OR PREDICTABILITY
AS TO EARNINGS OR DIVIDENDS.  THERE IS NO ASSURANCE THAT A SMALL
CORPORATION WILL HAVE A FLOW OF NET EARNINGS OR THAT INCOME EARNED WILL
IN FACT BE AVAILABLE FOR DIVIDENDS.  THUS, BYRUM'S ALLEGED DE FACTO
"POWER TO CONTROL THE FLOW OF DIVIDENDS" TO THE TRUST WAS SUBJECT TO
BUSINESS AND ECONOMIC VARIABLES OVER WHICH HE HAD LITTLE OR NO
CONTROL.     EVEN WHERE THERE ARE CORPORATE EARNINGS, THE LEGAL POWER
TO DECLARE DIVIDENDS IS VESTED SOLELY IN THE CORPORATE BOARD.  IN
MAKING DECISIONS WITH RESPECT TO DIVIDENDS, THE BOARD MUST CONSIDER A
NUMBER OF FACTORS.  IT MUST BALANCE THE EXPECTATION OF STOCKHOLDERS TO
REASONABLE DIVIDENDS WHEN EARNED AGAINST CORPORATE NEEDS FOR RETENTION
OF EARNINGS.  THE FIRST RESPONSIBILITY OF THE BOARD IS TO SAFEGUARD
CORPORATE FINANCIAL VIABILITY FOR THE LONG TERM.  THIS MEANS, AMONG
OTHER THINGS, THE RETENTION OF SUFFICIENT EARNINGS TO ASSURE ADEQUATE
WORKING CAPITAL AS WELL AS RESOURCES FOR RETIREMENT OF DEBT, FOR
REPLACEMENT AND MODERNIZATION OF PLANT AND EQUIPMENT, AND FOR GROWTH
AND EXPANSION.  THE NATURE OF A CORPORATION'S BUSINESS, AS WELL AS THE
POLICIES AND LONG-RANGE PLANS OF MANAGEMENT, ARE ALSO RELEVANT TO
DIVIDEND PAYMENT DECISIONS.  /15/  DIRECTORS OF A CLOSELY HELD, SMALL
CORPORATION MUST BEAR IN MIND THE RELATIVELY LIMITED ACCESS OF SUCH AN
ENTERPRISE TO CAPITAL MARKETS.  THIS MAY REQUIRE A MORE CONSERVATIVE
POLICY WITH RESPECT TO DIVIDENDS THAN WOULD BE EXPECTED OF AN
ESTABLISHED CORPORATION WITH SECURITIES LISTED ON NATIONAL EXCHANGES. 
/16/ 

NOR DO SMALL CORPORATIONS HAVE THE FLEXIBILITY OR THE OPPORTUNITY
AVAILABLE TO NATIONAL CONCERNS IN THE UTILIZATION OF RETAINED
EARNINGS.  WHEN EARNINGS ARE SUBSTANTIAL, A DECISION NOT TO PAY
DIVIDENDS MAY RESULT ONLY IN THE ACCUMULATION OF SURPLUS RATHER THAN
GROWTH THROUGH INTERNAL OR EXTERNAL EXPANSION.  THE ACCUMULATED
EARNINGS MAY RESULT IN THE IMPOSITION OF A PENALTY TAX.  /17/ 

THESE VARIOUS ECONOMIC CONSIDERATIONS ARE IGNORED AT THE DIRECTORS'
PERIL.  ALTHOUGH VESTED WTIH BROAD DISCRETION IN DETERMINING WHETHER,
WHEN, AND WHAT AMOUNT OF DIVIDENDS SHALL BE PAID, THAT DISCRETION IS
SUBJECT TO LEGAL RESTRAINS.  IF, IN OBEDIENCE TO THE WILL OF THE
MAJORITY STOCKHOLDER, CORPORATE DIRECTORS DISREGARD THE INTERESTS OF
SHAREHOLDERS BY ACCUMULATING EARNINGS TO AN UNREASONABLE EXTENT, THEY
ARE VULNERABLE TO A DERIVATIVE SUIT.  /18/ THEY ARE SIMILARLY
VULNERABLE IF THEY MAKE AN UNLAWFUL PAYMENT OF DIVIDENDS IN THE ABSENCE
OF NET EARNINGS OR AVAILABLE SURPLUS, /19/  OR IF THEY FAIL TO EXERCISE
THE REQUISITE DEGREE OF CARE IN DISCHARGING THEIR DUTY TO ACT ONLY IN
THE BEST INTEREST OF THE CORPORATION AND ITS STOCKHOLDERS. 

BYRUM WAS SIMILARLY INHIBITED BY A FIDUCIARY DUTY FROM ABUSING HIS
POSITION AS MAJORITY SHAREHOLDER FOR PERSONAL OR FAMILY ADVANTAGE TO
THE DETRIMENT OF THE CORPORATION OR OTHER STOCKHOLDERS.  THERE WERE A
SUBSTANTIAL NUMBER OF MINORITY STOCKHOLDERS IN THESE CORPORATIONS WHO
WERE UNRELATED TO BYRUM.  /20/  HAD BYRUM AND THE DIRECTORS VIOLATED
THEIR DUTIES, THE MINORITY SHAREHOLDERS WOULD HAVE HAD A CAUSE OF
ACTION UNDER OHIO LAW.  /21/  THE HUNTINGTON NATIONAL BANK, AS TRUSTEE,
WAS ONE OF THE MINORITY STOCKHOLDERS, AND IT HAD BOTH THE RIGHT AND THE
DUTY TO HOLD BYRUM RESPONSIBLE FOR ANY WRONGFUL OR NEGLIGENT ACTION AS
A CONTROLLING STOCKHOLDER OR AS A DIRECTOR OF THE CORPORATIONS.  /22/
ALTHOUGH BYRUM HAD RESERVED THE RIGHT TO REMOVE THE TRUSTEE, HE WOULD
HAVE BEEN IMPRUDENT TO DO THIS WHEN CONFRONTED BY THE TRUSTEE'S
COMPLAINT AGAINST HIS CONDUCT.  A SUCCESSOR TRUSTEE WOULD SUCCEED TO
THE RIGHTS OF THE ONE REMOVED. 

WE CONCLUDE THAT BYRUM DID NOT HAVE AN UNCONSTRAINED DE FACTO POWER
TO REGULATE THE FLOW OF DIVIDENDS TO THE TRUST, MUCH LESS THE "RIGHT"
TO DESIGNATE WHO WAS TO ENJOY THE INCOME FROM TRUST PROPERTY.  HIS
ABILITY TO AFFECT, BUT NOT CONTROL, TRUST INCOME, WAS A QUALITATIVELY
DIFFERENT POWER FROM THAT OF THE SETTLOR IN O'MALLEY, WHO HAD A
SPECIFIC AND ENFORCEABLE RIGHT TO CONTROL THE INCOME PAID TO THE
BENEFICARIES.  /23/  EVEN HAD BYRUM MANAGED TO FLOOD THE TRUST INCOME,
HE HAD NO WAY OF COMPELLING THE TRUSTEE TO PAY IT OUT RATHER THAN
ACCUMULATE IT.  NOR COULD HE PREVENT THE TRUSTEE FROM MAKING PAYMENTS
FROM OTHER TRUST ASSETS, /24/  ALTHOUGH ADMITTEDLY THERE WERE FEW OF
THESE AT THE TIME OF THE TIME OF BYRUM'S DEATH.  WE CANNOT ASSUME,
HOWEVER, THAT NO OTHER ASSETS WOULD COME INTO THE TRUST FROM
REINVESTMENTS OR OTHER GIFTS.  /25/ 

WE FIND NO MERIT TO THE GOVERNMENT'S CONTENTION THAT BYRUM'S DE
FACTO "CONTROL," SUBJECT AS IT WAS TO THE ECONOMIC AND LEGAL
CONSTRAINTS SET FORTH ABOVE, WAS TANTAMOUNT TO THE RIGHT TO DESIGNATE
THE PERSONS WHO SHALL ENJOY TRUST INCOME, SPECIFIED BY SEC.
2036(A)(2).  /26/

        II 

THE GOVERNMENT ASSERTS AN ALTERNATIVE GROUND FOR INCLUDING THE
SHARES TRANSFERRED TO THE TRUST WITHIN BYRUM'S GROSS ESTATE.  IT ARGUES
THAT BY RETAINING CONTROL, BYRUM GUARANTEED HIMSELF CONTINUED
EMPLOYMENT AND REMUNERATION, AS WELL AS THE RIGHT TO DETERMINE WHETHER
AND WHEN THE CORPORATIONS WOULD BE LIQUIDATED OR MERGED.  BYRUM IS THUS
SAID TO HAVE RETAINED "THE . . . ENJOYMENT OF . . . THE PROPERTY"
MAKING IT INCLUDABLE WITHIN HIS GROSS ESTATE UNDER SEC. 2036(A)(1). 
THE GOVERNMENT CONCEDES THAT THE RETENTION OF THE VOTING RIGHTS OF AN
"UNIMPORTANT MINORITY INTEREST" WOULD NOT REQUIRE INCLUSION OF THE
TRANSFERRED SHARES UNDER SEC. 2036(A)(1).  IT ARGUES, HOWEVER, "WHERE
THE CUMULATIVE EFFECT OF THE RETAINED POWERS AND THE RIGHTS FLOWING
FROM THE SHARES NOT PLACED IN TRUST LEAVES THE GRANTOR IN CONTROL OF A
CLOSE CORPORATION, AND ASSURES THAT CONTROL FOR HIS LIFETIME, HE HAS
RETAINED THE 'ENJOYMENT' OF THE TRANSFERRED STOCK."  /27/  BRIEF FOR
UNITED STATES 23. 

IT IS WELL SETTLED THAT THE TERMS "ENJOY" AND "ENJOYMENT," AS USED
IN VARIOUS ESTATE TAX STATUTES, "ARE NOT TERMS OF ART, BUT CONNOTE
SUBSTANTIAL PRESENT ECONOMIC BENEFIT RATHER THAN TECHNICAL VESTING OF
TITLE OR ESTATES."  COMMISSIONER V. ESTATE OF HOLMES, 326 U.S. 480, 486
(1946).  /28/  FOR EXAMPLE, IN REINECKE V. NORTHERN TRUST CO., 278 U.S.
339 (1929), IN WHICH THE CRITICAL INQUIRY WAS WHETHER THE DECEDENT HAD
CREATED A TRUST "INTENDED . . . 'TO TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER HIS DEATH,'"  /29/  ID., AT 348, THE COURT HELD
THAT RESERVED POWERS OF MANAGEMENT OF TRUST ASSETS, SIMILAR TO BYRUM'S
POWER OVER THE THREE CORPORATIONS, DID NOT SUBJECT AN INTER VIVOS TRUST
TO THE FEDERAL ESTATE TAX.  IN DETERMINING WHETHER THE SETTLOR HAD
RETAINED THE ENJOYMENT OF THE TRANSFERRED PROPERTY, THE COURT SAID: 

     "NOR DID THE RESERVED POWERS OF MANAGEMENT OF THE TRUSTS SAVE

  TO DECEDENT ANY CONTROL OVER THE ECONOMIC BENEFITS OR THE

  ENJOYMENT OF THE PROPERTY.  HE WOULD EQUALLY HAVE RESERVED ALL

  THESE POWERS AND OTHERS HAD HE MADE HIMSELF THE TRUSTEE, BUT THE

  TRANSFER WOULD NOT FOR THAT REASON HAVE BEEN INCOMPLETE.  THE

  SHIFTING OF THE ECONOMIC INTEREST IN THE TRUST PROPERTY WHICH WAS

  THE SUBJECT OF THE TAX WAS THUS COMPLETE AS SOON AS THE TRUST WAS

  MADE.  HIS POWER TO RECALL THE PROPERTY AND OF CONTROL OVER IT

  FOR HIS OWN BENEFIT THEN CEASED AND AS THE TRUSTS WERE NOT MADE

  IN CONTEMPLATION OF DEATH, THE RESERVED POWERS DO NOT SERVE TO

  DISTINGUISH THEM FROM ANY OTHER GIFT INTER VIVOS NOT SUBJECT TO

  THE TAX." 

278 U.S.,AT 346-347. 

THE CASES CITED BY THE GOVERNMENT REVEAL THAT THE TERMS "POSSESSION"
AND "ENJOYMENT," USED IN SEC. 2036(A)(1), WERE USED TO DEAL WITH
SITUATIONS IN WHICH THE OWERN OF PROPERTY DIVESTED HIMSELF OF TITLE BUT
RETAINED AN INCOME INTEREST OR, IN THE CASE OF REAL PROPERTY, THE
LIFETIME USE OF THE PROPERTY.  MR. JUSTICE BLACK'S OPINION FOR THE
COURT IN COMMISSIONER V. ESTATE OF CHURCH, 335 U.S. 632 (1949), TRACES
THE HISTORY OF THE CONCEPT.  IN NONE OF THE CASES CITED BY THE
GOVERNMENT HAS A COURT HELD THAT A PERSON HAS RETAINED POSSESSION OR
ENJOYMENT OF THE PROPERTY IF HE HAS TRANSFERRED TITLE IRREVOCABLY, MADE
COMPLETE DELIVERY OF THE PROPERTY AND RELINQUISHED THE RIGHT TO INCOME
WHERE THE PROPERTY IS INCOME PRODUCING.  /30/ 

THE GOVERNMENT CITES ONLY ONE CASE, ESTATE OF HOLLAND V.
COMMISSIONER, 1 T.C. 564 (1943), /31/  IN WHICH A DECEDENT HAD RETAINED
THE RIGHT TO VOTE TRANSFERRED SHARES OF STOCK AND IN WHICH THE STOCK
WAS INCLUDED WITHIN THE DECEDENT'S GROSS ESTATE.  IN THAT CASE, IT WAS
NOT THE MERE POWER TO VOTE THE STOCK, GIVING THE DECEDENT CONTROL OF
THE CORPORATION, WHICH CAUSED THE TAX COURT TO INCLUDE THE SHARES.  THE
COURT HELD THAT "'ON AN INCLUSIVE VIEW OF THE WHOLE ARRANGEMENT, THIS
WITHHOLDING OF THE INCOME UNTIL DECEDENT'S DEATH, COUPLED WITH THE
RETENTION OF THE CERTIFICATES UNDER THE PLEDGE AND THE RESERVATION OF
THE RIGHT TO VOTE THE STOCK AND TO DESIGNATE THE COMPANY OFFICERS'"
SUBJECTS THE STOCK TO INCLUSION WITHIN THE GROSS ESTATE.  ID., AT 565. 
THE SETTLOR IN HOLLAND RETAINED A CONSIDERABLY GREATER INTEREST THAN
BYRUM RETAINED, INCLUDING AN INCOME INTEREST.  /32/ 

AS THE GOVERNMENT CONCEDES, THE MERE RETENTION OF THE RIGHT-TO-VOTE
SHARES DOES NOT CONSTITUTE THE TYPE OF "ENJOYMENT" IN THE PROPERTY
ITSELF CONTEMPLATED BY SEC. 2036(A)(1).  IN ADDITION TO BEING AGAINST
THE WEIGHT OF PRECEDENT, THE GOVERNMENT'S ARGUMENT THAT BYRUM RETAINED
"ENJOYMENT" WITHIN THE MEANING OF SEC. 2036(A)(1) IS CONCEPTUALLY
UNSOUND.  THIS ARGUMENT IMPLIES, AS IT MUST UNDER THE EXPRESS LANGUAGE
OF SEC. 2036(A), THAT BYRUM "RETAINED FOR HIS LIFE . . . (1) THE
POSSESSION OR ENJOYMENT" OF THE "PROPERTY" TRANSFERRED TO THE TRUST OR
THE "INCOME" THEREFROM.  THE ONLY PROPERTY HE TRANSFERRED WAS CORPORATE
STOCK.  HE DID NOT TRANSFER "CONTROL" (IN THE SENSE USED BY THE
GOVERNMENT) AS THE TRUST NEVER OWNED AS MUCH AS 50% OF THE STOCK OF ANY
CORPORATION.  BYRUM NEVER DIVESTED HIMSELF OF CONTROL, AS HE WAS ABLE
TO VOTE A MAJORITY OF THE SHARES BY VIRTUE OF WHAT HE OWNED AND THE
RIGHT TO VOTE THOSE PLACED IN THE TRUST.  INDEED, AT THE TIME OF HIS
DEATH HE STILL OWNED A MAJORITY OF THE SHARES IN THE LARGEST OF THE
CORPORATIONS AND PROBABLY WOULD HAVE EXERCISED CONTROL OF THE OTHER TWO
BY VIRTUE OF BEING A LARGE STOCKHOLDER IN EACH.  /33/  THE STATUTORY
LANGUAGE PLAINLY CONTEMPLATES RETENTION OF AN ATTRIBUTE OF THE PROPERTY
TRANSFERRED-- SUCH AS A RIGHT TO INCOME, USE OF THE PROPERTY ITSELF, OR
A POWER OF APPOINTMENT WITH RESPECT EITHER TO INCOME OR PRINCIPAL. 
/34/ 

EVEN IF BYRUM HAD TRANSFERRED A MAJORITY OF THE STOCK, BUT HAD
RETAINED VOTING CONTROL, HE WOULD NOT HAVE RETAINED "SUBSTANTIAL
PRESENT ECONOMIC BENEFIT," 326 U.S.,AT 486.  THE GOVERNMENT POINTS TO
THE RETENTION OF TWO "BENEFITS."  THE FIRST OF THESE, THE POWER TO
LIQUIDATE OR MERGE, IS NOT A PRESENT BENEFIT; RATHER, IT IS A
SPECULATIVE AND CONTINGENT BENEFIT WHICH MAY OR MAY NOT BE REALIZED. 
NOR IS THE PROBABILITY OF CONTINUED EMPLOYMENT AND COMPENSATION THE
SUBSTANTIAL "ENJOYMENT OF . . . (THE TRANSFERRED) PROPERTY" WITHIN THE
MEANING OF THE STATUTE.  THE DOMINANT STOCKHOLDER IN A CLOSELY HELD
CORPORATION, IF HE IS ACTIVE AND PRODUCTIVE, IS LIKELY TO HOLD A SENIOR
POSITION AND TO ENJOY THE ADVANTAGE OF A SIGNIFICANT VOICE IN HIS OWN
COMPENSATION.  THESE ARE INEVITABLE FACTS OF THE FREE-ENTERPRISE
SYSTEM, BUT THE INFLUENCE AND CAPABILITY OF A CONTROLLING STOCKHOLDER
TO FAVOR HIMSELF ARE NOT WITHOUT CONSTRAINTS.  WHERE THERE ARE MINORITY
STOCKHOLDERS, AS IN THIS CASE, DIRECTORS MAY BE HELD ACCOUNTABLE IF
THEIR EMPLOYMENT, COMPENSATION, AND RETENTION OF OFFICERS VIOLATE THEIR
DUTY TO ACT REASONABLY IN THE BEST INTEREST OF THE CORPORATION AND ALL
OF ITS STOCKHOLDERS.  /35/  MOREOVER, THIS DUTY IS POLICED, ALBEIT
INDIRECTLY, BY THE INTERNAL REVENUE SERVICE, WHICH DISALLOWS THE
DEDUCTION OF UNREASONABLE COMPENSATION PAID TO A CORPORATE EXECUTIVE AS
A BUSINESS EXPENSE.  /36/  WE CONCLUDE THAT BYRUM'S RETENTION OF VOTING
CONTROL WAS NOT THE RETENTION OF THE ENJOYMENT OF THE TRANSFERRED
PROPERTY WITHIN THE MEANING OF THE STATUTE. 

FOR THE REASONS SET FORTH ABOVE, WE HOLD THAT THIS CASE WAS
CORRECTLY DECIDED BY THE COURT OF APPEALS AND ACCORDINGLY THE JUDGMENT
IS

              AFFIRMED. 

/1/  THE TRUST AGREEMENT IN PERTINENT PART PROVIDED:

        "ARTICLE IV.  IRREVOCABLE TRUST. 

"THIS TRUST SHALL BE IRREVOCABLE AND GRANTOR RESERVES NO RIGHTS,
POWERS, PRIVILEGES OR BENEFITS EITHER AS TO THE TRUST ESTATE OR THE
CONTROL OR MANAGEMENT OF THE TRUST PROPERTY, EXCEPT AS SET FORTH
HEREIN. 

        "ARTICLE V. POWERS OF THE TRUSTEE. 

"THE TRUSTEE SHALL HAVE AND POSSESS AND MAY EXERCISE AT ALL TIMES
NOT ONLY THE RIGHTS, POWERS AND AUTHORITIES INCIDENT TO THE OFFICE OR
REQUIRED IN THE DISCHARGE OF THIS TRUST, OR IMPLIEDLY CONFERRED UPON OR
VESTED IN IT, BUT THERE IS HEREBY EXPRESSLY CONFERRED UPON AND VESTED
IN THE TRUSTEE ALL THE RIGHTS, POWERS AND AUTHORITIES EMBODIED IN THE
FOLLOWING PARAGRAPHS IN THIS ARTICLE, WHICH ARE SHOWN BY WAY OF
ILLUSTRATION BUT NOT BY WAY OF LIMITATION:

.          .          .          . 

"SELL. 5.02 TO SELL AT PUBLIC OR PRIVATE SALE, TO GRANT OPTIONS TO
SELL, TO EXCHANGE, RE-EXCHANGE OR OTHERWISE DISPOSE OF ALL OR PART OF
THE PROPERTY, REAL OR PERSONAL, AT ANY TIME BELONGING TO THE TRUST
ESTATE, UPON SUCH TERMS AND CONDITIONS AND FOR SUCH CONSIDERATION AS
SAID TRUSTEE SHALL DETERMINE, AND TO EXECUTE AND DELIVER ALL
INSTRUMENTS OF SALE OR CONVEYANCE NECESSARY OR DESIRABLE THEREFOR. 

        .          .          .          . 

"INVESTMENTS.  5.05 TO INVEST ANY MONEY IN THE TRUST ESTATE IN
STOCKS, BONDS, INVESTMENT TRUSTS, COMMON TRUST FUNDS AND ANY OTHER
SECURITIES OR PROPERTY, REAL OR PERSONAL, SECURED OR UNSECURED, WHETHER
THE OBLIGATIONS OF INDIVIDUALS, CORPORATIONS, TRUSTS, ASSOCIATIONS,
GOVERNMENTS, EXPRESSLY INCLUDING SHARES AND/OR OBLIGATIONS OF ITS OWN
CORPORATION, OR OTHERWISE, EITHER WITHIN OR OUTSIDE OF THE STATE OF
OHIO, AS THE TRUSTEE SHALL DEEM ADVISABLE, WITHOUT ANY LIMITATION
WHATSOEVER AS TO THE CHARACTER OF INVESTMENT UNDER ANY STATUTE OR RULE
OF LAW NOW OR HEREAFTER ENACTED OR EXISTING REGARDING TRUST FUNDS OR
INVESTMENTS BY FIDUCIARIES OR OTHERWISE.     "VOTING.  5.06 TO VOTE BY
PROXY OR IN PERSON ANY STOCK OR SECURITY COMPRISING A PART OF THE TRUST
ESTATE, AT ANY MEETING, EXCEPT THAT, DURING GRANTOR'S LIFETIME, ALL
VOTING RIGHTS OF ANY STOCKS WHICH ARE NOT LISTED ON A STOCK EXCHANGE,
SHALL BE EXERCISED BY GRANTOR, AND AFTER GRANTOR'S DEATH, THE VOTING
RIGHTS OF SUCH STOCKS SHALL BE EXERCISED BY GRANTOR'S WIFE DURING HER
LIFETIME. 

        .          .          .          . 

"LEASES.  5.09 TO MAKE LEASES FOR ANY LENGTH OF TIME, WHETHER LONGER
OR SHORTER THAN THE DURATION OF THIS TRUST, TO COMMENCE AT THE PRESENT
TIME OR IN THE FUTURE; TO EXTEND ANY LEASE; TO GRANT OPTIONS TO LEASE
OR TO RENEW ANY LEASE; IT BEING EXPRESSLY UNDERSTOOD THAT THE TRUSTEE
MAY GRANT OR ENTER INTO NINETY-NINE YEAR LEASES, RENEWABLE FOREVER. 

        .          .        .          . 

"INCOME ALLOCATION.  5.13 TO DETERMINE IN ITS DISCRETION HOW ALL
RECEIPTS AND DISBURSEMENTS, CAPITAL GAINS AND LOSSES, SHALL BE CHARGED,
CREDITED OR APPORTIONED BETWEEN INCOME AND PRINCIPAL. 

        .          . .          . 

"LIMITATION.  5.15 NOTWITHSTANDING THE POWERS OF THE TRUSTEE GRANTED
IN PARAGRAPHS 5.02, 5.05, 5.09 AND 5.11 ABOVE, THE TRUSTEE SHALL NOT
EXERCISE ANY OF THE POWERS GRANTED IN SAID PARAGRAPHS UNLESS (A) DURING
GRANTOR'S LIFETIME SAID GRANTOR SHALL APPROVE OF THE ACTION TAKEN BY
THE TRUSTEE PURSUANT TO SAID POWERS, (B) AFTER THE DEATH OF THE GRANTOR
AND AS LONG AS HIS WIFE, MARIAN A. BYRUM, SHALL LIVE, SAID WIFE SHALL
APPROVE OF THE ACTION TAKEN BY THE TRUSTEE PURSUANT TO SAID POWERS. 

        "ARTICLE VI.  DISTRIBUTION PRIOR TO AGE 21. 

"UNTIL MY YOUNGEST LIVING CHILD REACHES THE AGE OF TWENTY-ONE (21)
YEARS, THE TRUSTEE SHALL EXERCISE ABSOLUTE AND SOLE DISCRETION IN
PAYING OR APPLYING INCOME AND/OR PRINCIPAL OF THE TRUST TO OR FOR THE
BENEFIT OF GRANTOR'S CHILD OR CHILDREN AND THEIR ISSUE, WITH DUE REGARD
TO THEIR INDIVIDUAL NEEDS FOR EDUCATION, CARE, MAINTENANCE AND SUPPORT
AND NOT NECESSARILY IN EQUAL SHARES, PER STIRPES.  THE DECISION OF THE
TRUSTEE IN THE DISPENSING OF TRUST FUNDS FOR SUCH PURPOSES SHALL BE
FINAL AND BINDING ON ALL INTERESTED PERSONS. 

        "ARTICLE VI.  DIVISION AT AGE 21. 

        .          .          .          . 

"PRINCIPAL DISBURSEMENTS.  6.02 IF PRIOR TO ATTAINING THE AGE OF
THIRTY-FIVE (35), ANY ONE OF THE CHILDREN OF GRANTOR SHALL HAVE AN
EMERGENCY SUCH AS AN EXTENDED ILLNESS REQUIRING UNUSUAL MEDICAL OR
HOSPITAL EXPENSES, OR ANY OTHER WORTHY NEED INCLUDING EDUCATION OF SUCH
CHILD, THE TRUSTEE IS HEREBY AUTHORIZED AND EMPOWERED TO PAY SUCH CHILD
OR USE FOR HIS OR HER BENEFIT SUCH AMOUNTS OF INCOME AND PRINCIPAL OF
THE TRUST AS THE TRUSTEE IN ITS SOLE JUDGMENT AND DISCRETION SHALL
DETERMINE. 

   .          .          .          .

        "ARTICLE VIII.  REMOVAL OF TRUSTEE. 

"IF THE TRUSTEE, THE HUNTINGTON NATIONAL BANK OF COLUMBUS, COLUMBUS,
OHIO, SHALL AT ANY TIME CHANGE ITS NAME OR COMBINE WITH ONE OR MORE
CORPORATIONS UNDER ONE OR MORE DIFFERENT NAMES, OR IF ITS ASSETS AND
BUSINESS AT ANY TIME SHALL BE PURCHASED AND ABSORBED BY ANOTHER TRUST
COMPANY OR CORPORATION AUTHORIZED BY LAW TO ACCEPT THESE TRUSTS, THE
NEW OR SUCCESSOR CORPORATION SHALL BE CONSIDERED AS THE SAID THE
HUNTINGTON NATIONAL BANK OF COLUMBUS, OHIO, AND SHALL CONTINUE SAID
TRUSTS AND SUCCEED TO ALL THE RIGHTS, PRIVILEGES, DUTIES AND
OBLIGATIONS HEREIN CONFERRED UPON SAID THE HUNTINGTON NATIONAL BANK OF
COLUMBUS, OHIO, TRUSTEE. 

"GRANTOR, PRIOR TO HIS DEATH, AND AFTER THE DEATH OF THE GRANTOR,
THE GRANTOR'S WIFE, MARIAN A. BYRUM, DURING HER LIFETIME, MAY REMOVE OR
CAUSE THE REMOVAL OF THE HUNTINGTON NATIONAL BANK OF COLUMBUS, OHIO, OR
ANY SUCCESSOR TRUSTEE, AS TRUSTEE UNDER THE TRUSTS AND MAY THEREUPON
DESIGNATE ANOTHER CORPORATE TRUSTEE TO SERVE AS SUCCESSOR TRUSTEE
HEREUNDER. 

        "ARTICLE IX.  MISCELLANEOUS PROVISIONS. 

        .          .          .          . 

"DISCRETION.  9.02 IF IN THE OPINION OF THE TRUSTEE IT SHALL APPEAR
THAT THE TOTAL INCOME OF ANY BENEFICIARY OF ANY TRUST FUND CREATED
HEREUNDER IS INSUFFICIENT FOR HIS OR HER PROPER OR SUITABLE SUPPORT,
CARE AND COMFORT, AND EDUCATION AND THAT OF SAID BENEFICIARY'S
CHILDREN, THE TRUSTEE IS AUTHORIZED TO PAY TO OR FOR SUCH BENEFICIARY
OR CHILD SUCH ADDITIONAL AMOUNTS FROM THE PRINCIPAL OF THE TRUST ESTATE
AS IT SHALL DEEM ADVISABLE IN ORDER TO PROVIDE SUITABLY AND PROPERLY
FOR THE SUPPORT, CARE, COMFORT, AND EDUCATION OF SAID BENEFICIARY AND
OF SAID BENEFICIARY'S CHILDREN, AND THE ACTION OF THE TRUSTEE IN MAKING
SUCH PAYMENTS SHALL BE BINDING ON ALL PERSONS." 

/2/  THE ACTUAL PROPORTIONS WERE:  (TABLE-OMITTED) 

/3/  26 U.S.C. 2036 PROVIDES: 

"(A) GENERAL RULE. 

"THE VALUE OF THE GROSS ESTATE SHALL INCLUDE THE VALUE OF ALL
PROPERTY TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT
HAS AT ANY TIME MADE A TRANSFER (EXCEPT IN CASE OF A BONA FIDE SALE FOR
AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH), BY TRUST
OR OTHERWISE, UNDER WHICH HE HAS RETAINED FOR HIS LIFE OR FOR ANY
PERIOD NOT ASCERTAINABLE WITHOUT REFERENCE TO HIS DEATH OR FOR ANY
PERIOD WHICH DOES NOT IN FACT END BEFORE HIS DEATH-- 

"(1) THE POSSESSION OR ENJOYMENT OF, OR THE RIGHT TO THE INCOME
FROM, THE PROPERTY, OR 

"(2) THE RIGHT, EITHER ALONE OR IN CONJUNCTION WITH ANY PERSON, TO
DESIGNATE THE PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE
INCOME THEREFROM." 

/4/  UNITED STATES V. O'MALLEY, 383 U.S. 627 (1966). 

IT IS IRRELEVANT TO THIS ARGUMENT HOW MANY SHARES BYRUM TRANSFERRED
TO THE TRUST.  HAD HE RETAINED IN HIS OWN NAME MORE THAN 50% OF THE
SHARES (AS HE DID WITH ONE CORPORATION), RATHER THAN RETAINING THE
RIGHT TO VOTE THE TRANSFERRED SHARES, HE WOULD STILL HAVE HAD THE RIGHT
TO ELECT THE BOARD OF DIRECTORS AND THE SAME POWER TO "CONTROL" THE
FLOW OF DIVIDENDS.  THUS, THE GOVERNMENT IS ARGUING THAT A MAJORITY
SHAREHOLDER'S ESTATE MUST BE TAXED FOR STOCK TRANSFERRED TO A TRUST IF
HE OWNED AT LEAST 50% OF THE VOTING SOTCK AFTER THE TRANSFER OR IF HE
RETAINED THE RIGHT TO VOTE THE TRANSFERRED STOCK AND COULD THUS VOTE
MORE THAN 50% OF THE STOCK.  IT WOULD FOLLOW ALSO THAT IF A SETTLOR
CONTROLLED 50% OF THE VOTING STOCK AND SIMILARLY TRANSFERRED SOME OTHER
CLASS OF STOCK FOR WHICH THE PAYMENT OF DIVIDENDS HAD TO BE AUTHORIZED
BY THE DIRECTORS, HIS ESTATE WOULD ALSO BE TAXED.  QUERY: WHAT WOULD
HAPPEN IF HE HAD THE RIGHT TO VOTE LESS THAN 50% OF THE VOTING STOCK
BUT STILL "CONTROLLED" THE CORPORATION?  SEE N. 10, INFRA. 

/3/  THE COURT HAS NEVER OVERTURNED THIS RULING.  SEE MCCORMICK V.
BURNET, 283 U.S. 784 (1931); HELVERING V. DUKE, 290 U.S. 591 (1933)
(AFFIRMED BY AN EQUALLY DIVIDED COURT).  IN COMMISSIONER V. ESTATE OF
CHURCH, 335 U.S. 632 (1949), AND ESTATE OF SPIEGEL V. COMMISSIONER, 335
U.S. 701 (1949), THE COURT INVITED, SUA SPONTE, ARGUMENT OF THIS
QUESTION, BUT DID NOT REACH THE ISSUE IN EITHER OPINION. 

/6/  SEE, E.G., OLD COLONY TRUST CO. V. UNITED STATES, 423 F.2D 601
(CA1 1970); UNITED STATES V. POWELL, 307 F.2D 821 (CA10 1962); ESTATE
OF FORD V. COMMISSIONER, 53 T.C. 114 (1969), AFF'D, 450 F.2D 878 (CA2
1971); ESTATE OF WILSON V. COMMISSIONER, 13 T.C. 869 (1949) (EN BANC),
AFF'D, 187 F.2D 145 (CA3 1951); ESTATE OF BUDD V. COMMISSIONER, 49 T.C.
468 (1968); ESTATE OF PARDEE V. COMMISSIONER, 49 T.C. 140 (1967);
ESTATE OF KING V. COMMISSIONER, 37 T.C. 973 (1962). 

/7/  THE DISSENTING OPINION ATTEMPTS TO DISTINGUISH THE CASES,
HOLDING THAT A SETTLOR-TRUSTEE'S RETAINED POWERS OF MANAGEMENT DO NOT
BRING ADVERSE ESTATE-TAX CONSEQUENCES, ON THE GROUND THAT MANAGEMENT OF
TRUST ASSETS IS NOT THE SAME AS THE POWER RETAINED BY BYRUM BECAUSE A
SETTLOR-TRUSTEE IS BOUND BY A FIDUCIARY DUTY TO TREAT THE LIFE CAUSE A
SETTLOR-TRUSTEE IS BOUND BY A FIDUCIARY DUTY TO TREAT THE LIFE TENANT
BENEFICIARIES AND REMAINDERMEN AS THE TRUST INSTRUMENT SPECIFIES.  BUT
THE ARGUMENT THAT IN THE RESERVED-POWER-OF-MANAGEMENT CASES THERE WAS
"A JUDICIALLY ENFORCEABLE STRICT STANDARD CAPABLE OF INVOCATION BY THE
TRUST BENEFICIARIES BY REFERENCE TO THE TERMS OF THE TRUST AGREEMENT,"
POST, AT 166, IGNORES THE FACT THAT TRUST AGREEMENTS MAY AND OFTEN DO
PROVIDE FOR THE WIDEST INVESTMENT DISCRETION. 

/8/  ASSUMING, ARGUENDO, THAT MR. JUSTICE WHITE IS CORRECT IN
SUGGESTING THAT IN 1958, WHEN THIS TRUST INSTRUMENT WAS DRAWN, THE
ESTATE-TAX CONSEQUENCES OF THE SETTLOR'S RETAINED POWERS OF MANAGEMENT
WERE LESS CERTAIN THAN THEY ARE NOW, THIS COURT'S FAILURE TO OVERRULE
NORTHERN TRUST, PLUS THE EXISTENCE OF RECENT CASES SUCH AS KING AND THE
CASES CITED IN N. 6, HAVE UNDOUBTEDLY BEEN RELIED ON BY THE DRAFTSMEN
OF MORE RECENT TRUSTS WITH CONSIDERABLE JUSTIFICATION.  OUR CONCERN AS
TO THIS POINT IS NOT SO MUCH WITH WHETHER BYRUM PROPERLY RELIED ON THE
PRECEDENTS, BUT WITH THE PROBABILITY THAT OTHERS DID RELY THEREON IN
GOOD FAITH. 

/9/  ALTHOUGH MR. JUSTICE WHITE'S DISSENT ARGUES THAT THE USE OF THE
WORD "POWER" IN O'MALLEY IMPLIES THAT THE COURT'S CONCERN WAS WITH
PRACTICAL REALITY RATHER THAN LEGAL FORM, AN EXAMINATION OF THAT
OPINION DOES NOT INDICATE THAT THE TERM WAS USED OTHER THAN IN THE
SENSE OF LEGALLY EMPOWERED.  AT ANY RATE, THE "POWER" WAS A RIGHT
RESERVED TO THE SETTLOR IN THE TRUST INSTRUMENT ITSELF. 

/10/  THE "CONTROL" RATIONALE, URGED BY THE GOVERNMENT AND ADOPTED
BY THE DISSENTING OPINION, WOULD CREATE A STANDARD-- NOT SPECIFIED IN
THE STATUTE-- SO VAGUE AND AMORPHOUS AS TO BE IMPOSSIBLE OF
ASCERTAINMENT IN MANY INSTANCES.  SEE N. 13, INFRA.  NEITHER THE
GOVERNMENT NOR THE DISSENT SHEDS LIGHT ON THE ABSENCE OF AN
ASCERTAINABLE STANDARD.  THE GOVERNMENT SPEAKS VAGUELY OF DRAWING THE
LINE BETWEEN "AN UNIMPORTANT MINORITY INTEREST" (WHATEVER THAT MAY BE)
AND "VOTING CONTROL."  THE DISSENTING OPINION DOES NOT ADDRESS THIS
PROBLEM AT ALL.  SEE COMMENT, SALE OF CONTROL STOCK AND THE BROKERS'
TRANSACTION EXEMPTION-- BEFORE AND AFTER THE WHEAT REPORT, 49
TEX.L.REV.  475, 479-481 (1971). 

/11/  SUCH A FIDUCIARY RELATIONSHIP WOULD EXIST IN ALMOST EVERY, IF
NOT EVERY, STATE.  OHIO, FROM WHICH THIS CASE ARISES, IS NO EXCEPTION: 

"(IF THE MAJORITY UNDERTAKES, EITHER DIRECTLY OR INDIRECTLY, THROUGH
THE DIRECTORS, TO CONDUCT, MANAGE, OR DIRECT THE CORPORATION'S AFFAIRS,
THEY MUST DO SO IN GOOD FAITH, AND WITH AN EYE SINGLE TO THE BEST
INTERESTS OF THE CORPORATION.  IT IS CLEAR THAT THE INTERESTS OF THE
MAJORITY ARE NOT ALWAYS IDENTICAL WITH THE INTERESTS OF ALL THE
SHAREHOLDERS.  THE OBLIGATION OF THE MAJORITY OR OF THE DOMINANT GROUP
OF SHAREHOLDERS ACTING FOR, OR THROUGH, THE CORPORATION IS FIDUCIARY IN
NATURE.  A COURT OF EQUITY WILL GRANT APPROPRIATE RELIEF WHERE THE
MAJORITY OR DOMINANT GROUP OF SHAREHOLDERS ACT IN THEIR OWN INTEREST OR
IN THE INTEREST OF OTHERS SO AS TO OPPRESS THE MINORITY OR COMMIT A
FRAUD UPON THEIR RIGHTS."  13 OHIO JUR.  2D, CORPORATIONS 662, PP. 90
91 (FOOTNOTES OMITTED). 

SEE OVERFIELD V. PENNROAD CORP., 42 F.SUPP.  586 (ED PA. 1941),
REV'D ON OTHER GROUNDS, 146 F.2D 889 (CA3 1944). 

/12/  "THE DIRECTORS OF THE CORPORATION REPRESENT THE CORPORATION,
NOT JUST ONE SEGMENT OF IT, BUT ALL OF IT.  THE FIDUCIARY NATURE OF THE
DIRECTORS' OBLIGATION REQUIRES THAT, IN THE MANAGEMENT OF THE
CORPORATION'S AFFAIRS, THEY DO NOT PRESUME TO PLAY FAVORITES AMONG THE
SHAREHOLDERS OR AMONG CLASSES OF SHAREHOLDERS."  12 OHIO JUR.  2D,
CORPORATIONS 497, P. 618. 

/13/  THE GOVERNMENT USES THE TERMS "CONTROL" AND "CONTROLLING
STOCKHOLDER" AS IF THEY WERE WORDS OF ART WITH A FIXED AND
ASCERTAINABLE MEANING.  IN FACT, THE CONCEPT OF "CONTROL" IS A NEBULOUS
ONE.  ALTHOUGH IN THIS CASE BYRUM POSSESSED "VOTING CONTROL" OF THE
THREE CORPORATIONS (IN VIEW OF HIS BEING ABLE TO VOTE MORE THAN 50% OF
THE STOCK IN EACH), THE CONCEPT IS TOO VARIABLE AND IMPRECISE TO
CONSTITUTE THE BASIS PER SE FOR IMPOSING TAX LIABILITY UNDER SEC.
2036(A).  UNDER MOST CIRCUMSTANCES, A STOCKHOLDER WHO HAS THE RIGHT TO
VOTE MORE THAN 50% OF THE VOTING SHARES OF A CORPORATION "CONTROLS IT"
IN THE SENSE THAT HE MAY ELECT THE BOARD OF DIRECTORS.  BUT SUCH A
STOCKHOLDER WOULD NOT CONTROL, UNDER THE LAWS OF MOST STATES, CERTAIN
CORPORATE TRANSACTIONS SUCH AS MERGERS AND SALES OF ASSETS.  MOREOVER,
CONTROL-- IN TERMS OF EFFECTIVE POWER TO ELECT THE BOARD UNDER NORMAL
CIRCUMSTANCES-- MAY EXIST WHERE THERE IS A RIGHT TO VOTE FAR LESS THAN
50% OF THE SHARES.  THIS WILL VARY WITH THE SIZE OF THE CORPORATION,
THE NUMBER OF SHAREHOLDERS, AND THE CONCENTRATION (OR LACK OF IT) OF
OWNERSHIP.  SEE GENERALLY 2 L.LOSS, SECURITIES REGULATION 770-783
(1961).  SECURITIES LAW PRACTITIONERS RECOGNIZE THAT POSSESSING 10% OR
MORE OF VOTING POWER IS A FACTOR ON WHICH THE SECURITIES AND EXCHANGE
COMMISSION RELIES AS ONE OF THE INDICIA OF CONTROL.  SEC, DISCLOSURE TO
INVESTORS-- THE WHEAT REPORT 245-247 (1969). 

/14/  IN ADVOCATING THIS DE FACTO APPROACH, THE GOVERNMENT RELIES ON
OUR OPINION IN COMMISSIONER V. SUNNEN, 333 U.S. 591 (1948).  SUNNEN WAS
A PERSONAL INCOME TAX CASE IN WHICH THE COURT FOUND THE TAXPAYER HAD
MADE AN ASSIGNMENT OF INCOME.  THE REASONING RELIED ON THE DE FACTO
POWER OF A CONTROLLING SHAREHOLDER TO REGULATE CORPORATE BUSINESS FOR
HIS PERSONAL OBJECTIVES.  THIS CASE IS AN ESTATE TAX CASE, NOT AN
INCOME TAX CASE.  MOREOVER, UNLIKE ASSIGNMENT-OF-INCOME CASES, IN WHICH
THE ISSUE IS WHO HAS THE POWER OVER INCOME, THIS CASE CONCERNS A
STATUTE WRITTEN IN TERMS OF THE "RIGHT: TO DESIGNATE THE RECIPIENT OF
INCOME.  THE USE OF THE TERM "RIGHT" IMPLIES THAT RESTRAINTS ON THE
EXERCISE OF POWER ARE TO BE RECOGNIZED AND THAT SUCH RESTRAINTS DEPRIVE
THE PERSON EXERCISING THE POWER OF A "RIGHT" TO DO SO. 

/15/  THE SPECTRUM OF TYPES OF CORPORATE BUSINESSES, AND OF
PERMISSIBLE POLICIES WITH RESPECT TO THE RETENTION OF EARNINGS, IS
BROAD INDEED.  IT RANGES FROM THE PUBLIC UTILITY WITH RELATIVELY
ASSURED AND STABLE INCOME TO THE NEW AND SPECULATIVE CORPORATION
ENGAGED IN A CYCLICAL BUSINESS OR ORGANIZED TO EXPLOIT A NEW PATENT OR
UNPROVED TECHNOLOGY.  SOME CORPORATIONS PAY NO DIVIDENDS AT ALL, A THEY
ARE ORGANIZED MERELY TO HOLD STATIC ASSETS FOR PROLONGED PERIODS (E.G.,
LAND, MINERAL RESOURCES, AND THE LIKE).  CORPORATIONS WHICH EMPHASIZE
GROWTH TEND TO LOW DIVIDEND PAYMENTS, WHEREAS MATURE CORPORATIONS MAY
PURSUE GENEROUS DIVIDEND POLICIES.     /16/  THOMAS V. MATTHEWS, 94
OHIO ST. 32, 55-56, 113 N.E. 669, 675 (1916): 

"(IT IS THE DUTY OF THE DIRECTORS, IN DETERMINING THE AMOUNT OF NET
EARNINGS AVAILABLE FOR THE PAYMENT OF DIVIDENDS, TO TAKE INTO ACCOUNT
THE NEEDS OF THE COMPANY IN ITS BUSINESS AND SUMS NECESSARY IN THE
OPERATION OF ITS BUSINESS UNTIL THE INCOME FROM FURTHER OPERATIONS IS
AVAILABLE, THE AMOUNT OF ITS DEBTS, THE NECESSITY OR ADVISABILITY OF
PAYING ITS DEBTS OR AT LEAST REDUCING THEM WITHIN THE LIMITS OF THE
COMPANY'S CREDIT, THE PRESERVATION OF ITS CAPITAL STOCK AS REPRESENTED
IN THE ASSETS OF THE COMPANY AS A FUND FOR THE PROTECTION OF ITS
CREDITORS AND THE CHARACTER OF ITS SURPLUS ASSETS WHETHER CASH, CREDITS
OR MERCHANDISE." 

/17/  INTERNAL REVENUE CODE OF 1954, SUBC.  G, PT. I, SECS. 531-537;
26 U.S.C. 531-537. 

/18/  HAD BYRUM CAUSED THE BOARD TO FOLLOW A DIVIDEND POLICY,
DESIGNED TO MINIMIZE OR CUT OFF INCOME TO THE TRUST, WHICH RESULTED IN
THE IMPOSITION OF THE PENALTY FOR ACCUMULATED EARNINGS NOT DISTRIBUTED
TO SHAREHOLDERS, THERE MIGHT HAVE BEEN SUBSTANTIAL GROUNDS FOR A
DERIVATIVE SUIT.  A DERIVATIVE SUIT ALSO WOULD HAVE BEEN A POSSIBILITY
HAD DIVIDENDS BEEN PAID IMPRUDENTLY TO INCREASE THE TRUST'S INCOME AT
THE EXPENSE OF CORPORATE LIQUIDITY.  MINORITY SHAREHOLDERS IN OHIO MAY
BRING DERIVATIVE SUITS UNDER OHIO RULE CIV. PROC. 23.1. 

/19/  IN MOST STATES, THE POWER TO DECLARE DIVIDENDS IS VESTED
SOLELY IN THE DIRECTORS.  11 W.FLETCHER, CYCLOPEDIA CORPORATIONS, C.
58, SEC. 5320.  OHIO IS NO EXCEPTION, AND IT LIMITS THE AUTHORITY OF
DIRECTORS TO PAY DIVIDENDS DEPENDING ON AVAILABLE CORPORATE SURPLUS. 
OHIO REV. CODE ANN. SEC. 1701.33.  ALTHOUGH LIABILITY GENERALLY EXISTS
IRRESPECTIVE OF A STATUTE, NEARLY ALL STATES HAVE STATUTE REGULATING
THE LIABILITY OF DIRECTORS WHO PARTICIPATE IN THE PAYMENT OF IMPROPER
DIVIDENDS.  12 FLETCHER, SUPRA, C. 58, SEC. 5432.  AGAIN, OHIO IS NO
EXCEPTION.  OHIO REV. CODE ANN. SEC. 1701.95. 

/20/  APP. 30-32.  IN BYRUM LITHOGRAPHING CO., INC., NONE OF THE
OTHER 11 STOCKHOLDERS APPEARS TO BE RELATED BY NAME TO BYRUM.  IN
BYCHROME CO. FIVE OF THE EIGHT STOCKHOLDERS APPAR TO BE UNRELATED TO
THE BYRUMS; AND IN GRAPHIC REALTY CO. 11 OF THE 14 STOCKHOLDERS APPEAR
TO BE UNRELATED. 

/21/  SEE WILBERDING V. MILLER, 90 OHIO ST. 28, 42, 106 N.E. 665,
669 (1914): 

"AN ARBITRARY DISREGARD OF THE RIGHTS OF STOCKHOLDERS TO DIVIDENDS
OR OTHER IMPROPER TREATMENT OF THE ASSETS OF THE COMPANY WOULD BE
RELIEVED AGAINST." 

/22/  THE TRUST INSTRUMENT EXPLICITLY GRANTED THE TRSUTEE THE POWER
"(TO ENFORCE, ABANDON, DEFEND AGAINST, OR HAVE ADJUDICATED BY LEGAL
PROCEEDINGS, ARBITRATION OR BY COMPROMISE, ANY CLAIM OR DEMAND
WHATSOEVER ARISING OUT OF OR WHICH MAY EXIST AGAINST THE TRUST
ESTATE."  APP. 10-11. 

/23/  THE GOVERNMENT CITES TWO OTHER OPINIONS OF THIS COURT, IN
ADDITION TO O'MALLEY, TO SUPPORT ITS ARGUMENT.  IN BOTH COMMISSIONER V.
ESTATE OF HOLMES, 326 U.S. 480 (1946), AND LOBER V. UNITED STATES, 346
U.S. 335 (1953), THE GRANTOR RESERVED TO HIMSELF THE POWER TO
DISTRIBUTE TO THE BENEFICIARIES THE ENTIRE PRINCIPAL AND ACCUMULATED
INCOME OF THE TRUST AT ANY TIME.  THIS POWER TO TERMINATE THE TRUST AND
THEREBY DESIGNATE THE BENEFICIAIRIES AT A TIME SELECTED BY THE SETTLOR,
IS NOT COMPARABLE TO THE POWERS RESERVED BY BYRUM IN THIS CASE. 

/24/  WHILE THE TRUSTEE COULD NOT ACQUIRE OR DISPOSE OF INVESTMENTS
WITHOUT BYRUM'S APPROVAL, HE WAS NOT SUBJECT TO BYRUM'S ORDERS.  BYRUM
COULD PREVENT THE ACQUISITION OF AN ASSET, BUT HE COULD NOT REQUIRE THE
TRUSTEE TO ACQUIRE ANY INVESTMENT.  NOR COULD HE COMPEL A SALE,
ALTHOUGH HE COULD PREVENT ONE.  THUS, IF THERE WERE OTHER INCOME
PRODUCING ASSETS IN THE TRUST, BYRUM COULD NOT COMPEL THE TRUSTEE TO
DISPOSE OF THEM. 

/25/  IN PURPORTING TO SUMMARIZE THE BASIS OF OUR DISTINCTION OF
O'MALLEY, THE DISSENTING OPINION STATES: 

"NOW THE MAJORITY WOULD HAVE US ACCEPT THE INCOMPATIBLE POSITION
THAT A SETTLOR SEEKING TAX EXEMPTION MAY KEEP THE POWER OF INCOME
ALLOCATION BY RENDERING THE TRUST DEPENDENT ON AN INCOME FLOW HE
CONTROLS BECAUSE THE GENERAL FIDUCIARY OBLIGATIONS OF A DIRECTOR ARE
SUFFICIENT TO ELIMINATE THE POWER TO DESIGNATE WITHIN THE MEANING OF
SEC. 2036(A)(2)."  POST, AT 157. 

THIS STATEMENT, WHICH ASSUMES THE CRITICAL AND ULTIMATE CONCLUSION,
INCORRECTLY STATES THE POSITION OF THE COURT.  WE DO NOT HOLD THAT A
SETTLOR "MAY KEEP THE POWER OF INCOME ALLOCATION" IN THE WAY MR.
JUSTICE WHITE SETS OUT; WE HOLD, FOR THE REASONS STATED IN THIS
OPINION, THAT THIS SETTLOR DID NOT RETAIN THE POWER TO ALLOCATE INCOME
WITHIN THE MEANING OF THE STATUTE. 

/26/  THE DISSENTING OPINION'S VIEW OF THE BUSINESS WORLD WILL COME
AS A SURPRISE TO MANY.  THE DISSENT STATES: 

"THUS, BY INSTRUCTING THE DIRECTORS HE ELECTED IN THE CONTROLLED
CORPORATIONS THAT HE THOUGHT DIVIDENDS SHOULD OR SHOULD NOT BE DECLARED
BYRUM WAS ABLE TO OPEN OR CLOSE THE SPIGOT THROUGH WHICH THE INCOME
FLOWED TO THE TRUST'S LIFE TENANTS."  POST, AT 152. 

THIS APPEARS TO ASSUME THAT ALL CORPORATIONS, INCLUDING THE SAMLL
FAMILY TYPE INVOLVED IN THIS CASE, HAVE A REGULAR AND DEPENDABLE FLOW
OF EARNINGS AVAILABLE FOR DIVIDENDS, AND THAT IF THERE IS A CONTROLLING
STOCKHOLDER HE SIMPLY TURNS THE "SPIGOT" ON OR OFF AS DIVIDENDS MAY BE
DESIRED.  FOR THE REASONS SET FORTH IN THIS OPINION, NO SUCH DREAM
WORLD EXISTS IN THE LIFE OF MANY CORPORATIONS.  BUT WHATEVER THE
SITUATION MAY BE GENERALLY, THE FALLACY IN THE DISSENTING OPINION'S
POSITION HERE IS THAT THE RECORD SIMPLY DOES NOT SUPPORT IT.  THE
RECORD DOES NOT DISCLOSE ANYTHING WITH RESPECT TO THE EARNINGS OR
FINANCIAL CONDITIONS OF THESE CORPORATIONS.  WE SIMPLY DO NOT KNOW
WHETHER THERE WERE ANY EARNINGS FOR THE YEARS IN QUESTION, WHETHER
THERE WAS AN EARNED SURPLUS IN ANY OF THE CORPORATIONS, OR WHETHER-- IF
SOME EARNINGS BE ASSUMED-- THEY WERE ADEQUATE IN LIGHT OF OTHER
CORPORATE NEEDS TO JUSTIFY DIVIDEND PAYMENTS.  NOR CAN WE INFER FROM
THE INCREASE IN DIVIDEND PAYMENTS IN THE YEAR FOLLOWING BYRUM'S DEATH
THAT HIGHER DIVIDENDS COULD HAVE BEEN PAID PREVIOUSLY.  THE INCREASE
COULD BE EXPLAINED AS EASILY BY INSURANCE HELD BY THE CORPORATIONS ON
BYRUM'S LIFE. 

/27/  AT ONE POINT MR. JUSTICE WHITE SEEMS TO IMPLY THAT BYRUM ALSO
RETAINED THE ENJOYMENT OF THE RIGHT TO THE INCOME FROM THE TRANSFERRED
SHARES: 

"WHEN BYRUM CLOSED THE PSIGOT BY DEFERRING DIVIDENDS OF THE
CONTROLLED CORPORATIONS, THEREBY PERPETUATING HIS OWN 'ENJOYMENT' OF
THESE FUNDS, HE ALSO IN EFFECT TRANSFERRED INCOME FROM THE LIFE TENANTS
TO THE REMAINDERMEN."  POST, AT 152.  BUT, OF COURSE, EVEN IF DIVIDENDS
WERE DEFERRED, THE FUNDS REMAINED IN THE CORPORATION; BYRUM COULD NOT
USE THEM HIMSELF. 

/28/  SEE 26 CFR 20.2036-1(B)(2): 

"THE 'USE, POSSESSION, RIGHT TO THE INCOME, OR OTHER ENJOYMENT OF
THE TRANSFERRED PROPERTY' IS CONSIDERED AS HAVING BEEN RETAINED BY OR
RESERVED TO THE DECEDENT TO THE EXTENT THAT THE USE, POSSESSION, RIGHT
TO THE INCOME, OR OTHER ENJOYMENT IS TO BE APPLIED TOWARD THE DISCHARGE
OF A LEGAL OBLIGATION OF THE DECEDENT, OR OTHERWISE FOR HIS PECUNIARY
BENEFIT." 

ALTHOUGH MR. JUSTICE WHITE QUESTIONS THE COURT'S FAILURE TO
INTERPRET "POSSESSION OR ENJOYMENT" WITH "EXTREME LITERALNESS," POST,
AT 154 N. 3, APPARENTLY THE COMMISSIONER DOES NOT DO SO EITHER. 
REFLECTION ON THE EXPANSIVE NATURE OF THOSE WORDS, PARTICULARLY
"ENJOYMENT," WILL DEMONSTRATE WHY INTERPRETING THEM WITH "EXTREME
LITERALNESS" IS AN IMPOSSIBILITY. 

/29/  NORTHERN TRUST WAS DECIDED UNDER THE REVENUE ACT OF 1921, SEC.
402(C), 42 STAT. 278. 

/30/  HELVERING V. HALLOCK, 309 U.S. 106 (1940); COMMISSIONER V.
ESTATE OF CHURCH, 335 U.S. 632 (1949); LOBER V. UNITED STATES, 346 U.S.
335 (1953); UNITED STATES V. ESTATE OF GRACE, 395 U.S. 316 (1969);
ESTATE OF MCNICHOL V. COMMISSIONER, 265 F.2D 667 (CA3), CERT. DENIED,
361 U.S. 829 (1959); GUYNN V. UNITED STATES, 437 F.2D 1148 (CA4 1971). 
IN ALL OF THESE CASES, AS IN CHURCH, THE GRANTOR RETAINED EITHER TITLE
OR AN INCOME INTEREST OR THE RIGHT TO USE REAL PROPERTY FOR HIS
LIFETIME. 

DESPITE MR. JUSTICE WHITE'S SUGGESTION, POST, AT 154, WE HAVE NOT
"IGNORED) THE PLAIN LANGUAGE OF THE STATUTE WHICH PROSCRIBES
'ENJOYMENT' AS WELL AS 'POSSESSION OR . . . THE RIGHT TO INCOME.'" 
RATHER, THE CASES WE HAVE CITED CLEARLY ESTABLISH THAT THE TERMS
"POSSESSION" AND "ENJOYMENT" HAVE NEVER BEEN BEEN USED AS THE DISSENT
ARGUES. 

/31/  THE CITED OPINION SUPPLEMENTED AN EARLIER OPINION OF THE BOARD
OF TAX APPEALS IN THE SAME CASE, 47 B.T.A. 807 (1942). 

/32/  A MORE ANALOGOUS CASE IS YEAZEL V. COYLE, 68-1 U.S.T.C. PARA.
12,524 (ND ILL. 1968), IN WHICH A SETTLOR-TRUSTEE, WHO TRANSFERRED 60%
OF THE SHARES OF A WHOLLY OWNED CORPORATION TO A TRUST, WAS FOUND NOT
TO HAVE RETAINED THE ENJOYMENT OF THE PROPERTY FOR HER LIFETIME. 

/33/  THE GOVERNMENT, FOR THE REASONS DISCUSSED IN N. 4, SUPRA,
MAKES NO DISTINCTION BETWEEN RETENTION OF CONTROL BY VIRTUE OF OWNING
50% OR MORE OF THE VOTING SHARES AND SUCH RETENTION BY A COMBINATION OF
STOCK OWNED AND THAT WITH RESPECT TO WHICH THE RIGHT TO VOTE WAS
RETAINED. 

/34/  THE INTERPRETATION GIVEN SEC. 2036(A) BY THE GOVERNMENT AND BY
MR. JUSTICE WHITE'S DISSENTING OPINION WOULD SERIOUSLY DISADVANTAGE
SETTLORS IN A CONTROL POSTURE.  IF THE SETTLOR REMAINED A CONTROLLING
STOCKHOLDER, ANY TRANSFER OF STOCK WOULD BE TAXABLE TO HIS ESTATE.  SEE
N. 4, SUPRA.  THE TYPICAL CLOSELY HELD CORPORATION IS SMALL, HAS A
CHECKERED EARNING RECORD, AND HAS NO MARKET FOR ITS SHARES.  YET ITS
SHARES OFTEN HAVE SUBSTANTIAL ASSET VALUE.  TO PREVENT THE CRIPPLING
LIQUIDITY PROBLEM THAT WOULD RESULT FROM THE IMPOSITION OF ESTATE TAXES
ON SUCH SHARES, THE CONTROLLING SHAREHOLDER'S ESTATE PLANNING OFTEN
INCLUDES AN IRREVOCABLE TRUST.  THE GOVERNMENT AND THE DISSENTING
OPINION WOULD DENY TO CONTROLLING SHAREHOLDERS THE PRIVILEGE OF USING
THIS GENERALLY ACCEPTABLE METHOD WHOSE WEALTH CONSISTED OF LISTED
SECURITIES OF CORPORATIONS HE DID NOT CONTROL WOULD BE PERMITTED THE
TAX ADVANTAGE OF THE IRREVOCABLE TRUST EVEN THOUGH HIS MORE MARKETABLE
ASSETS PRESENT A FAR LESS SERIOUS LIQUIDITY PROBLEM.  THE LANGUAGE OF
THE STATUTE DOES NOT SUPPORT SUCH A RESULT AND WE CANNOT BELIEVE
CONGRESS INTENDED IT TO HAVE SUCH DISCRIMINATORY AND FAR-REACHING
IMPACT. 

/35/  DIRECTORS OF OHIO CORPORATIONS HAVE BEEN HELD LIABLE FOR
PAYMENT OF EXCESSIVE COMPENSATION.  BERKWITZ V. HUMPHREY, 163 F.SUPP. 
78 (ND OHIO 1958). 

/36/  26 U.S.C. 162(A)(1) PERMITS CORPORATIONS TO DEDUCT
"REASONABLE" COMPENSATION AS BUSINESS EXPENSES.  IF THE INTERNAL
REVENUE SERVICE DETERMINES THAT COMPENSATION EXCEEDS THE BOUNDS OF
REASON, IT WILL NOT PERMIT A DEDUCTION.  SEE, E.G., BOTANY WORSTED
MILLS V. UNITED STATES, 278 U.S. 282 (1929). 

MOREOVER, THERE IS NOTHING IN THE RECORD OF THIS CASE WITH RESPECT
TO BYRUM'S COMPENSATION.  THERE IS NO SHOWING THAT HIS CONTROL OF THESE
CORPORATIONS GAVE HIM AN "ENJOYMENT" WITH RESPECT TO COMPENSATION THAT
HE WOULD NOT HAVE HAD UPON RENDERING SIMILAR SERVICES WITHOUT OWNING
ANY STOCK. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

I THINK THE MAJORITY IS WRONG IN ALL SUBSTANTIAL RESPECTS. 

        I 

THE TAX CODE COMMANDS THE PAYMENT OF AN ESTATE TAX ON TRANSFERS
EFFECTIVE IN NAME AND FORM DURING LIFE IF THE NOW DECEASED SETTLOR
RETAINED DURING HIS LIFE EITHER (1) "THE POSSESSION OR ENJOYMENT OF"
THE PROPERTY TRANSFERRED OR (2) THE RIGHT TO DESIGNATE THE PERSONS WHO
WOULD ENJOY THE TRANSFERRED PROPERTY OR THE INCOME THEREFORM.  26
U.S.C. 2036(A)(1) AND (2).  OUR CASES EXPLICATE THIS CONGRESSIONAL
DIRECTIVE TO MEAN THAT IF ONE WISHES TO AVOID A TAX AT DEATH HE MUST BE
SELF-ABNEGATING ENOUGH TO TOTALLY SURRENDER HIS PROPERTY INTEREST
DURING LIFE. 

"(AN ESTATE TAX CANNOT BE AVOIDED BY ANY TRUST TRANSFER EXCEPT BY A
BONA FIDE TRANSFER IN WHICH THE SETTLOR, ABSOLUTELY, UNEQUIVOCALLY,
IRREVOCABLY, AND WITHOUT POSSIBLE RESERVATIONS, PARTS WITH ALL OF HIS
TITLE AND ALL OF HIS POSSESSION AND ALL OF HIS ENJOYMENT OF THE
TRANSFERRED PROPERTY."  COMMISSIONER V. ESTATE OF CHURCH, 335 U.S. 632,
645 (1949). 

IN THIS CASE THE TAXPAYER'S ASSERTED ALIENATION DOES NOT MEASURE UP
TO THIS HIGH STANDARD.  BYRUM ENJOYED THE CONTINUED PRIVILEGE OF VOTING
THE SHARES HE "GAVE UP" TO THE TRUST.  BY MEANS OF THESE SHARES HE
ENJOYED MAJORITY CONTROL OF TWO CORPORATIONS.  HE USED THAT CONTROL TO
RETAIN SALARIED POSITIONS IN BOTH CORPORATIONS.  TO MY MIND THIS IS
ENJOYMENT OF PROPERTY PUT BEYOND TAXATION ONLY ON THE PRETEXT THAT IT
IS NOT ENJOYED. 

BYRUM'S LIFELONG ENJOYMENT OF THE VOTING POWER OF THE TRUST SHARES
CONTRAVENES SEC. 2036(A)(2) AS WELL AS SEC. 2036(A)(1) BECAUSE IT
AFFORDED HIM CONTROL OVER WHICH TRUST BENEFICIARIES-- THE LIFE TENANTS
OR THE REMAINDERMEN-- WOULD RECEIVE THE BENEFIT OF THE INCOME EARNED BY
THESE SHARES.  HE SECURED THIS POWER BY MAKING THE TRUST TO ALL INTENTS
AND PURPOSES EXCLUSIVELY DEPENDENT ON SHARES IT COULD NOT SELL IN
CORPORATIONS HE CONTROLLED.  /1/  THUS, BY INSTRUCTING THE DIRECTORS HE
ELECTED IN THE CONTROLLED CORPORATIONS THAT HE THOUGHT DIVIDENDS SHOULD
OR SHOULD NOT BE DECLARED BYRUM WAS ABLE TO OPEN OR CLOSE THE SPIGOT
THROUGH WHICH INCOME FLOWED TO THE TRUST'S LIFE TENANTS.  WHEN BYRUM
CLOSED THE SPIGOT BY DEFERRING DIVIDENDS OF THE CONTROLLED
CORPORATIONS, THEREBY PERPETUATING HIS OWN "ENJOYMENT" OF THESE FUNDS,
HE ALSO IN EFFECT TRANSFERRED INCOME FROM THE LIFE TENANTS TO THE
REMAINDERMEN WHOSE SHARE VALUES WERE SWOLLEN BY THE RETAINED INCOME. 
THE EXTENT TO WHICH SUCH INCOME TRANSFERS CAN BE EFFECTED IS SUGGESTED
BY THE PAY-OUT RECORD OF THE CORPORATIONS HERE IN QUESTION, AS
REFLECTED IN THE TRUST'S ACCOUNTS.  OVER THE FIRST FIVE YEARS OF ITS
EXISTENCE ON SHARES LATER VALUED BY THE INTERNAL REVENUE SERVICE AT
$89,000, THE TRUST RECEIVED A TOTAL OF ONLY $339 IN DIVIDENDS.  IN THE
SIXTH YEAR, BYRUM DIED.  THE CORPORATIONS RAISED THEIR DIVIDEND RATE
FROM 10[ A SHARE TO $2 PER SHARE AND PAID $1,498 INTO THE TRUST.  SEE
"INCOME CASH LEDGER," APP. 25-26.     BYRUM'S CONTROL OVER THE FLOW OF
TRUST INCOME RENDERS HIS ESTATE SCHEME REPUGNANT TO SEC. 2036(A)(2) AS
WELL AS SEC. 2036(A)(1).     TO ME IT IS THUS CLEAR THAT BYRUM'S SHARES
WERE NOT TRULY, TOTALLY, "ABSOLUTELY, UNEQUIVOCALLY" ALIENATED DURING
HIS LIFE.  WHEN IT IS APPARENT THAT, IF TOLERATED, BYRUM'S SCHEME WILL
OPEN A GAPING HOLE IN THE ESTATE TAX LAWS, ON WHAT BASIS DOES THE
MAJORITY NONETHELESS CONCLUDE THAT BYRUM SHOULD HAVE HIS ENJOYMENT HIS
CONTROL, AND HIS ESTATE FREE FROM TAXES? 

     II 

I CAN FIND NOTHING IN THE MAJORITY'S THREE ARGUMENTS PURPORTING TO
DEAL WITH SEC. 2036(A)(1), THAT MIGHT JUSTIFY THE CONCLUSION THAT BYRUM
DID NOT "ENJOY" A BENEFIT FROM THE SHARES HIS ESTATE NOW ASSERTS ARE
IMMUNE FROM TAXATION. 

1.  THE MAJORITY SAYS THAT IN REINECKE V. NORTHERN TRUST CO., 278
U.S. 339 (1929), "THE COURT HELD THAT RESERVED POWERS OF MANAGEMENT OF
TRUST ASSETS, SIMILAR TO BYRUM'S POWER OVER THE THREE CORPORATIONS, DID
NOT SUBJECT AN INTER VIVOS TRUST TO THE FEDERAL ESTATE TAX."  THIS
READING OF NORTHERN TRUST IS NOT WARRANTED BY THE ONE PARAGRAPH IN THAT
ANTIQUE OPINION ON THE POINT FOR WHICH IT IS NOT CITED, SEE 278 U.S.,AT
346-347, NOR BY THE CIRCUMSTANCES OF THAT CASE.  NO ONE HAS EVER
SUGGESTED THAT ADOLPHUS BARTLETT, THE SETTLOR IN NORTHERN TRUST, USED
OR COULD HAVE USED THE VOTING POWER OF THE SHARES HE TRANSFERRED TO A
TRUST TO CONTROL OR, INDEED, EXERCISE ANY SIGNIFICANT INFLUENCE IN ANY
COMPANY.  A MERE GLANCE AT THE NATURE OF THESE SECURITIES TRANSFERRED
BY BARTLETT (E.G., 1,000 SHARES OF THE NORTHERN TRUST CO., 784 SHARES
OF THE COMMONWEALTH EDISON CO., 300 SHARES OF THE ILLINOIS CENTRAL R.
CO., 200 PREFERRED SHARES OF THE CHICAGO & NORTH WESTERN R. CO., 300
COMMON SHARES OF THE CHICAGO & NORTH WESTERN R. CO.)  /2/  SHATTERS ANY
THEORY THAT MIGHT LEAD TO ONE TO BELIEVE THAT THE COURT IN NORTHERN
TRUST WAS CONCERNED WITH ANYTHING LIKE THE TRANSACTIONS IN THIS CASE. 
ON WHAT BASIS, THEN, DOES THE MAJORITY SAY THAT NORTHERN TRUST INVOLVED
A DECISION ON FACTS "SIMILAR TO BYRUM'S POWER OVER THE THREE
CORPORATIONS"?  AND ON WHAT BASIS DOES IT SAY THAT THE GOVERNMENT'S
POSITION THAT BYRUM'S USE OF TRUST SHARES TO RETAIN CONTROL RENDERS
THOSE SHARES TAXABLE IS "AGINAST THE WEIGHT OF PRECEDENT?" 

2.  THE MAJORITY IMPLIES THAT TRUST SECURITIES ARE TAXABLE ONLY IF
THE TESTATOR RETAINED TITLE OR THE RIGHT TO INCOME FROM THE SECURITIES
UNTIL DEATH.  BUT THIS IGNORES THE PLAIN LANGUAGE OF THE STATUTE WHICH
PROSCRIBES "ENJOYMENT" AS WELL AS "POSSESSION OR . . . THE RIGHT TO
INCOME." 

3.  THE MAJORITY CONCLUDES WITH THE ASSERTION THAT BYRUM SECURED NO
"SUBSTANTIAL PRESENT ECONOMIC BENEFITS" FROM HIS RETENTION OF CONTROL. 
/3/  IT IS SUGGESTED THAT CONTROL IS NOT IMPORTANT, THAT IT EITHER
CANNOT BE HELD BY A PRIVATE SHAREHOLDER OR THAT IT IS OF SO LITTLE USE
AND RELEVANCE THE TAXPAYER CAN HARDLY BE SAID TO HAVE "ENJOYED" IT.
THIS VIEW OF CORPORATE LIFE IS REFUTED BY THE CASE LAW; /4/  BY THE
COMMENTATORS; /5/  AND BY EVERYDAY TRANSACTIONS ON THE STOCK EXCHANGE
WHERE OFFERS AND TRADES REPEATEDLY DEMONSTRATE THAT THE POWER TO
"CONTROL" A CORPORATION WILL FETCH A SUBSTANTIAL PREMIUM.  /6/
MOREOVER, THE MAJORITY'S VIEW IS BELIED BY BYRUM'S OWN CONDUCT.  HE
OBVIOUSLY VALUED CONTROL BECAUSE HE FORBADE THE BANK THAT SERVED AS
TRUSTEE TO SELL THE TRUST SHARES IN THESE CORPORATIONS WITHOUT HIS--
BYRUM'S-- APPROVAL, WHATEVER THEIR RETURN, THEIR PROSPECTS, THEIR
VALUE, OR THE TRUST'S NEEDS.  TRUST AGREEMENT PARA. 5.15, APP. 14. 

IN SUM, THE MAJORITY'S DISCOURSE ON SEC. 2036(A)(1) IS AN
UNCONVINCING RATIONALIZATION FOR ALLOWING BYRUM THE TAX-FREE
"ENJOYMENT" OF THE CONTROL PRIVILEGES HE RETAINED THROUGH THE VOTING
POWER OF SHARES HE SUPPOSEDLY "ABSOLUTELY" AND "UNEQUIVOCALLY" GAVE UP.

        III 

I FIND NO GREATER SUBSTANCE IN THE GREATER LENGTH OF THE MAJORITY'S
DISCUSSION OF SEC. 2036(A)(2). 

        A 

APPROACHING THE SEC. 2036(A)(2) PROBLEM AFRESH, ONE WOULD THINK
UNITED STATES V. O'MALLEY, 383 U.S. 627 (1966), WOULD CONTROL THIS
CASE.  IN O'MALLEY THE SETTLOR "HAD RELINQUISHED ALL OF HIS RIGHTS" TO
STOCK, BUT HE APPOINTED HIMSELF ONE OF THREE TRUSTEES FOR EACH OF THE
FIVE TRUSTS HE CREATED, AND HE DRAFTED THE TRUST AGREEMENT SO THAT THE
TRUSTEES HAD THE FREEDOM TO ALLOCATE TRUST INCOME TO THE LIFE TENANT OR
TO ACCUMULATE IT FOR THE REMAINDERMAN "IN THEIR SOLE DISCRETION."  THE
DISTRICT COURT HELD THAT THE VALUE OF SECURITIES TRANSFERRED WAS
INCLUDABLE IN THE SETTLOR'S GROSS ESTATE UNDER SEC. 811(C) AND (D) OF
THE INTERNAL REVENUE CODE OF 1939, AS AMENDED, SEC. 811(C)(1)(B) BEING
THE SIMILARLY WORDED PREDECESSOR OF SEC. 2036(A), BECAUSE THE SETTLOR
HAD RETAINED THE POWER TO ALLOCATE INCOME BETWEEN THE BENEFICIARIES
WITHOUT BEING CONSTRAINED BY A "DEFINITE ASCERTAINABLE STANDARD"
ACCORDING TO WHICH THE TRUST WOULD BE ADMINISTERED.  O'MALLEY V. UNITED
STATES, 220 F.SUPP.  30, 33 (1963).  THE COURT NOTED "PLAINTIFF'S
CONTENTION THAT THE REQUIRED EXTERNAL STANDARD IS IMPOSED GENERALLY BY
THE LAW OF ILLINOIS," BUT FOUND THIS POINT TO BE "WITHOUT MERIT." 

"THE CASES CITED BY PLAINTIFF CLEARLY SET OUT FUNDAMENTAL PRINCIPLES
OF TRUST LAW:  THAT A TRUST REQUIRES A NAMED BENEFICIARY; THAT THE
LEGAL AND EQUITABLE ESTATES BE SEPARATED; AND, THAT THE TRUSTEES OWE A
FIDUCIARY DUTY TO THE BENEFICIARIES.  THESE STATEMENTS OF THE LAW ARE
NOT PARTICULAR TO ILLINOIS.  NOR DO THESE REQUIREMENTS SO CIRCUMSCRIBE
THE TRUSTEE'S POWERS IN AN OTHERWISE UNRESTRICTED TRUST SO AS TO HOLD
SUCH A TRUST GOVERNED BY AN EXTERNAL STANDARD AND THUS EXCLUDABLE FROM
THE APPLICATION OF SEC. 811(C) AND (D)."  220 F.SUPP.,AT 33-34. 

IT WAS ANOTHER ASPECT OF THAT CASE THAT BROUGHT THE MATTER TO THE
COURT OF APPEALS, 340 F.2D 930 (CA7 1964), AND THEN HERE.  WE WERE
ASKED TO DECIDE WHETHER THE LOWER COURT'S HOLDING SHOULD BE EXTENDED
AND THE ACCUMULATED INCOME AS WELL AS THE PRINCIPLE OF THE TRUST
INCLUDED IN THE SETTLOR'S TAXABLE ESTATE BECAUSE THE SETTLOR HAD
RETAINED EXCESSIVE POWER TO DESIGNATE THE INCOME BENEFICIARIES OF THE
SHARES TRANSFERRED.  WE HELD THAT, THOUGH CAPABLE OF EXERCISE ONLY IN
CONJUNCTION WITH ONE OTHER TRUSTEE, THE POWER TO ALLOCATE INCOME
WITHOUT GREATER CONSTRAINT THAN THAT IMPOSED "IS A SIGNIFICANT POWER .
. . OF SUFFICIENT SUBSTANCE TO BE DEEMED THE POWER TO 'DESIGNATE'
WITHIN THE MEANING OF (THE PREDECESSOR OF SEC. 2036(A)(2))."  383
U.S.,AT 631. 

O'MALLEY MAKES THE MAJORITY'S POSITION IN THIS CASE UNTENABLE. 
O'MALLEY ESTABLISHES THAT A SETTLOR SERVING AS A TRUSTEE IS BARRED FROM
RETAINING THE POWER TO ALLOCATE TRUST INCOME BETWEEN A LIFE TENANT AND
A REMAINDERMAN IF HE IS NOT CONSTRAINED BY MORE THAN GENERAL FIDUCIARY
REQUIREMENTS.  SEE ALSO COMMISSIONER V. ESTATE OF HOLMES, 326 U.S. 480
(1946), /7/  AND LOBER V. UNITED STATES, 346 U.S. 335 (1953).  NOW THE
MAJORITY WOULD HAVE US ACCEPT THE INCOMPATIBLE POSITION THAT A SETTLOR
SEEKING TAX EXEMPTION MAY KEEP THE POWER OF INCOME ALLOCATION BY
RENDERING THE TRUST DEPENDENT ON AN INCOME FLOW HE CONTROLS BECAUSE THE
GENERAL FIDUCIARY OBLIGATIONS OF A DIRECTOR ARE SUFFICIENT TO ELIMINATE
THE POWER TO DESIGNATE WITHIN THE MEANING OF SEC. 2036(A)(2).  /8/

        B 

THE MAJORITY WOULD PROP UP ITS UNTENABLE POSITION BY SUGGESTING THAT
A CONTROLLING SHAREHOLDER IS CONSTRAINED IN HIS DISTRIBUTION OR
RETENTION OF DIVIDENDS BY FEAR OF DERIVATIVE SUITS, ACCUMULATED
EARNINGS TAXES, AND "VARIOUS ECONOMIC CONSIDERATIONS . . . IGNORED AT
THE DIRECTOR'S PERIL."  I DO NOT DENY THE EXISTENCE OF SUCH
CONSTRAINTS, BUT THEIR RESTRAINING EFFECT ON AN OTHERWISE TEMPTING
GROSS ABUSE OF THE CORPORATE DIVIDEND POWER HARDLY GUTS THE GREAT POWER
OF A CONTROLLING DIRECTOR TO ACCELERATE OR RETARD, ENLARGE OR DIMINISH,
MOST DIVIDENDS.  THE PENALTY TAXES ONLY TAKE EFFECT WHEN ACCUMULATIONS
EXCEED $100,000, 26 U.S.C. 535(C); BYRUM WAS FREE TO ACCUMULATE UP TO
THAT CEILING.  THE THREAT OF A DERIVATIVE SUIT IS HARDLY A GREATER
DETERRENT TO ACCUMULATION.  AS CARY PUTS IT: 

  "THE CASES IN WHICH COURTS HAVE REFUSED TO REQUIRE DECLARATION

  OF DIVIDENDS OR LARGER DIVIDENDS DESPITE THE EXISTENCE OF CURRENT

  EARNINGS OR A SUBSTANTIAL SURPLUS OR BOTH ARE NUMEROUS;

  PLAINTIFFS HAVE WON ONLY A SMALL MINORITY OF THE CASES.  THE

  LABELS ARE 'BUSINESS JUDGMENT'; 'BUSINESS PURPOSE';

  'NON-INTERFERENCE IN INTERNAL AFFAIRS.'  THE COURTS HAVE ACCEPTED

  THE GENERAL DEFENSE OF DISCRETION, SUPPLEMENTED BY ONE OR MORE OF

  A NUMBER OF GROUNDS PUT FORWARD AS REASONS FOR NOT PAYING

  DIVIDENDS OR LARGER DIVIDENDS . . . . "  W. CARY, CASES AND

  MATERIALS ON CORPORATIONS 1587 (4TH ED. 1969). 

AND CF. COMMISSIONER V. SUNNEN, 333 U.S. 591, 609 (1948). 

THE EASE WITH WHICH EXCESS TAXES, DERIVATIVE SUITS, AND ECONOMIC
VICISSITUDES ALIKE MAY BE CIRCUMVENTED OR HURDLED IF A CONTROLLING
SHAREHOLDER CHOOSES TO SO ARRANGE HIS AFFIARS IS SUGGESTED BY THE PAY
OUT RECORD OF BYRUM'S CORPORATIONS NOTED ABOVE. 

        C 

THE MAJORITY PROPOSES ONE OTHER METHOD OF DISTINGUISHING O'MALLEY. 
BENEFICIARIES.  O'MALLEY INVOLVED THE EFFORT OF A SETTLOR TO MAINTAIN A
LEGAL RIGHT TO ALLOCATE INCOME.  IN THE INSTANT CASE ONLY THE POWER TO
ALLOCATE INCOME IS AT STAKE.  THE GOVERNMENT'S ARGUMENT IS THUS SAID TO
DEPART FROM "THE SPECIFIC STATUTORY LANGUAGE"  /9/  AND TO STRETCH THE
STATUTE BEYOND ENDURANCE BY ALLOCATING TAX ACCORDING TO THE REALITIES
OF THE SITUATION RATHER THAN BY THE MORE RIGID YARDSTICK OF FORMAL
CONTROL.  /10/ 

THIS ARGUMENT CONJURES UP AN IMAGE OF CONGRESSIONAL CARE IN THE
ARTICULATION OF SEC. 2036(A)(2) THAT IS ENTIRELY AT ODDS WITH THE
CIRCUMSTANCES OF ITS PASSAGE.  THE 1931 LEGISLATION, WHICH FIRST
ENACTED WHAT IS NOW SEC. 2036(A)(2) IN LANGUAGE NOT MATERIALLY AMENDED
SINCE THAT DATE, PASSED BOTH HOUSES OF CONGRESS IN ONE DAY-- THE LAST
DAY OF THE SESSION.  THERE WAS NO PRINTED COMMITTEE REPORT. 
SUBSTANTIAL REFERENCES TO THE BILL APPEAR IN ONLY TWO BRIEF SECTIONS OF
THE CONGRESSIONAL RECORD.  /11/  UNDER THE CIRCUMSTANCES I SEE NO
WARRANT FOR READING THE WORDS IN A NIGGARDLY WAY. 

MOREOVER, IT APPEARS FROM CONTEMPORARY EVIDENCE THAT IF THE USE OF
THE WORD "RIGHT" WAS INTENDED TO HAVE ANY SPECIAL MEANING IT WAS TO
EXPAND RATHER THAN TO CONTRACT THE REACH OF THE RESTRAINT EFFECTED BY
THE PROVISION IN WHICH IT APPEARED.  THE HOUSE REPORT ON THE REVENUE
ACT OF 1932 NOTES IN RELATION TO AMENDMENT OF THE PREDECESSOR OF SEC.
2036(A)(1) THAT: 

"THE INSERTION OF THE WORDS 'THE RIGHT TO THE INCOME' IN PLACE OF
THE WORDS 'THE INCOME' IS DESIGNED TO REACH A CASE WHERE DECEDENT HAD
THE RIGHT TO THE INCOME, THOUGH HE DID NOT ACTUALLY RECEIVE IT.  THIS
IS ALSO A CLARIFYING CHANGE."  H.R. REP. NO. 708, 72D CONG., 1ST SESS.,
47.  AND SEE S. REP. NO. 665, 72D CONG., 1ST SESS., 50, TO THE SAME
EFFECT. 

I REPEAT THE INJUNCTION OF MR. JUSTICE FRANKFURTER, 25 YEARS AGO:
"THIS IS TAX LANGUAGE AND SHOULD BE READ IN ITS TAX SENSE."  UNITED
STATES V. OGILVIE HARDWARE CO., 330 U.S. 709, 721 (1947) (DISSENTING
OPINION). 

LEST THIS BY ITSELF NOT BE CONSIDERED ENOUGH TO REFUTE THE
MAJORITY'S APPROACH, I MUST ADD THAT IT IS QUITE REPUGNANT TO THE WORDS
AND SENSE OF OUR OPINION IN O'MALLEY TO READ IT AS THOUGH IT PIVOTED ON
AN INTERPRETATION OF "RIGHT" RATHER THAN POWER.  THE OPINION COULD
HARDLY HAVE BEEN MORE EXPLICITLY CONCERNED WITH THE REALITIES OF A
SETTLOR'S RETAINED POWER RATHER THAN THE THEORETICAL LEGAL FORM OF THE
TRUST.  THUS WE SAID: 

"HERE FABRICE (THE SETTLOR) WAS EMPOWERED . . . . THIS IS A
SIGNIFICANT POWER . . . OF SUFFICIENT SUBSTANCE TO BE DEEMED THE POWER
TO 'DESIGNATE' WITHIN THE MEANING OF (THE PREDECESSOR OF SEC.
2036(A)(2)).  . . . "  383 U.S.,AT 631.  AND WE SAID: 

"WITH THE CREATION OF THE TRUSTS, HE RELINQUISHED ALL OF HIS RIGHTS
TO INCOME EXCEPT THE POWER TO DISTRIBUTE THAT INCOME TO THE INCOME
BENEFICIARIES OR TO ACCUMULATE IT AND HOLD IT FOR THE REMAINDERMEN OF
THE TRUSTS."  383 U.S.,AT 632.  AND WE SPOKE OF: 

"THIS POWER HE EXERCISED BY ACCUMULATING AND ADDING INCOME TO
PRINCIPAL AND THIS SAME POWER HE HELD UNTIL THE MOMENT OF HIS DEATH.  .
. . "  383 U.S.,AT 634.  OTHER PASSAGES COULD BE QUOTED. 

        IV 

APPARENTLY SENSING THAT CONSIDERATIONS OF LOGIC, POLICY, AND RECENT
CASE LAW POINT TO THE INCLUSION OF BYRUM'S TRUST IN HIS ESTATE, THE
MAJORITY WOULD BLUNT THESE CONSIDERATIONS BY INVOKING THE PRINCIPLE
THAT COURTS SHOULD REFRAIN FROM DECISIONS DETRIMENTAL TO LITIGANTS WHO
HAVE TAKEN A POSITION IN LEGITIMATE RELIANCE ON POSSIBLY OUTDATED, BUT
ONCE ESTABLISHED, CASE LAW.  THIS PRINCIPLE IS SAID TO BRING GREAT
WEIGHT TO BEAR IN BYRUM'S FAVOR. 

I NEED NOT QUARREL WITH THE PRINCIPLE.  I THINK, HOWEVER, THAT ITS
APPLICATION IN THIS CONTEXT IS INAPPROPRIATE. 

THE MAJORITY RECITES THESE FACTS:  THIS COURT HAS NEVER HELD THAT
RETENTION OF POWER TO MANAGE TRUST ASSETS COMPELS INCLUSION OF A TRUST
IN A SETTLOR'S ESTATE.  IN FACT, REINECKE V. NORTHERN TRUST CO., 278
U.S. 339 (1929), SPECIFICALLY HELD A TRUST ARRANGEMENT IMMUNE FROM
TAXATION THOUGH THE SETTLOR RETAINED POWER TO DECIDE HOW THE TRUST
ASSETS WERE TO BE INVESTED.  THOUGH NORTHERN TRUST WAS DECIDED BEFORE
THE PASSAGE OF SEC. 2036(A)(2), IT HAS BEEN FOLLOWED BY "SEVERAL" MORE
RECENT LOWER COURT DECISIONS.  THOUGH MOST OF THE LOWER COURT DECISIONS
PROVIDE ONLY THE MOST OBLIQUE REFERENCE TO CIRCUMSTANCES LIKE THOSE OF
THIS CASE, A 1962 UNAPPEALED TAX COURT DECISION, ESTATE OF KING V.
COMMISSIONER, 37 T.C. 973, IS SQUARELY IN POINT.     ON THE BASIS OF
THESE TWO AUTHORITIES, A 1929 SUPREME COURT DECISION AND AN UNREVIEWED
1962 TAX COURT DECISION, THE MAJORITY CONCLUDES THAT THERE EXISTS A
"GENERALLY ACCEPTED" RULE THAT BYRUM MIGHT DO WHAT HE HAD DONE HERE. 
IT IS SAID THAT THE HYPOTHESIZED RULE "MAY" HAVE BEEN RELIED UPON BY
"HUNDREDS" OF OTHERS; IF SO, ITS MODIFICATION "COULD" HAVE A SERIOUS
IMPACT, ESPECIALLY UPON SETTLORS WHO "HAPPEN" TO HAVE BEEN CONTROLLING
SHAREHOLDERS IN CLOSELY HELD CORPORATIONS AND WHO "HAPPEN" TO HAVE
TRANSFERRED SHARES IN THOSE CORPORATIONS TO TRUSTS WHILE FORBIDDING THE
TRUSTEE TO SELL THE SHARES WITHOUT APPROVAL AND WHILE RETAINING VOTING
RIGHTS IN THOSE SHARES.  THEREFORE THE RULE OUGHT NOT TO BE "MODIFIED"
BY THIS COURT. 

        A 

THE ARGUMENT, APPARENTLY, IS THAT WHAT "APPEARS) TO BE ESTABLISHED"
SHOULD BECOME ESTABLISHED BECAUSE IT HAS APPEARED.  JUDGES CAN AND WILL
PROPERLY DIFFER ON THE QUESTIONS OF WHAT DEFERENCE TO ACCORD RELIANCE
ON A WELL-ESTABLISHED RULE, BUT I DOUBT THAT WE ARE PRECLUDED FROM
REACHING WHAT WOULD OTHERWISE BE A RIGHT RESULT SIMPLY BECAUSE IN THE
MINDS OF SOME LITIGANTS A CONTRARY RULE HAD HERETOFORE "APPEARED) TO BE
ESTABLISHED."  IF THE MAJORITY'S APPROACH WERE WIDELY ACCEPTED, ARTFUL
CLAIMS OF PAST UNDERSTANDING WOULD CONSISTENTLY SUFFICE TO FRUSTRATE
JUDICIAL AS WELL AS ADMINISTRATIVE EFFORTS AT PRESENT RATIONALIZATION
OF THE LAW AND EVERY PRECEDENT-- EVEN AT THE TAX COURT LEVEL-- MIGHT
LAY CLAIM TO SUCH AUTHORITY THAT THE GOVERNMENT AND THE TAX BAR COULD
AFFORD TO LEAVE NO CASE UNAPPEALED. 

        B 

OF COURSE, THE RELIANCE ARGUMENT IS DOUBLY INFIRM IF THE MAJORITY'S
RULE CANNOT BE SAID TO HAVE "APPEARED) TO BE ESTABLISHED."  DID BYRUM
HAVE A SOUND BASIS FOR CALCULATING THAT THERE WAS NO SUBSTANTIAL RISK
OF TAXATION WHEN HE PERSISTED IN RETAINING THE POWERS AND PRIVILEGES
DESCRIBED ABOVE? 

1.  AGAIN THE MAJORITY TURNS TO REINECKE V. NORTHERN TRUST CO., BUT
IT IS NO MORE CREDIBLE TO USE NORTHERN TRUST AS A FOUNDATION FOR
BYRUM'S SEC. 2036(A)(2) POSITION THAN IT WAS TO USE IT AS A BASIS FOR
THE COURT'S SEC. 2036(A)(1) ARGUMENT.  NORTHERN TRUST WAS DECIDED ON
JANUARY 2, 1929, TWO YEARS AND THREE MONTHS BEFORE CONGRESS PASSED THE
FIRST VERSION OF SEC. 2036(A)(2).  SECTION 402(C) OF THE ACT OF 1921,
THE PROVISION UNDER WHICH NORTHERN TRUST WAS DECIDED, PROSCRIBED ONLY
TRANSFERS IN WHICH THE SETTLOR ATTEMPTED TO RETAIN "POSSESSION OR
ENJOYMENT" UNTIL HIS DEATH.  IT IS THUS NOT SURPRISING THAT NORTHERN
TRUST FOCUSED ON THE QUESTION OF THE SETTLOR'S "POWER TO RECALL THE
PROPERTY AND OF CONTROL OVER IT FOR HIS OWN BENEFIT," 278 U.S.,AT 347,
AND MADE NO MENTION OF POSSIBLE TAX LIABILITY BECAUSE OF A RETAINED
POWER TO DESIGNATE WHICH BENEFICIARIES WOULD ENJOY THE TRUST INCOME.  A
HOLDING IN THIS CONTEXT CANNOT BE PRECEDENT OF "WEIGHT" FOR A DECISION
AS TO THE EFFICACY OF A TRUST AGREEMENT MADE-- AS THIS TRUST WAS-- 27
YEARS AFTER THE PREDECESSOR OF SEC. 2036(A)(2) WAS ENACTED. 

I NOTE ALSO THAT NORTHERN TRUST RESTS ON A CONCEPTUAL FRAMEWORK NOW
REJECTED IN MODERN LAW.  THE CASE IS THE ELDER SIBLING OF MAY V.
HEINER, 281 U.S. 238, A THREE-PAGE 1930 DECISION WHICH QUOTES NORTHERN
TRUST, AT LENGTH.  MAY IN EFFECT HELD THAT UNDER SEC. 402(C) A SETTLOR
MAY BE CONSIDERED TO HAVE FULLY ALIENATED PROPERTY FROM HIMSELF EVEN IF
HE RETAINS THE VERY SUBSTANTIAL STRING OF THE RIGHT TO INCOME FROM THE
PROPERTY SO LONG AS HE SURVIVES.  THE LOGIC OF MAY V. HEINER IS THE
LOGIC OF NORTHERN TRUST.  AS ONE AUTHORITY HAS WRITTEN: 

     "WHEN RETENTION OF A LIFE ESTATE WAS NOT TAXABLE UNDER THE
RULE

  OF MAY V. HEINER, IT FOLLOWED THAT MERE RETENTION OF A RIGHT TO

  DESIGNATE THE PERSONS TO RECEIVE THE INCOME DURING THE LIFE OF

  THE SETTLOR WAS NOT TAXABLE . . . . "  1 J. BEVERIDGE, LAW OF

  FEDERAL ESTATE TAXATION SEC. 8.06, P. 324 (1956). 

THAT LOGIC NO LONGER SURVIVES.  WHEN THREE SUPREME COURT PER CURIAMS
AFFIRMED MAY ON MARCH 2, 1931, AND THUS INDICATED THAT THIS VIEW WOULD
NOT BE CONFINED TO ITS FACTS, THE TREASURY DEPARTMENT, ON THE NEXT
MORNING, WROTE CONGRESS IMPLORING IT TO PROMPTLY AND FINALLY REJECT THE
COURT'S LENIENT VIEW OF THE ESTATE TAX SYSTEM.  CONGRESS RESPONDED BY
ENACTING THE PREDECESSOR OF SEC. 2036(A)(2) THAT VERY DAY.  THE
PRESIDENT SIGNED THE LAW THAT EVENING.  THUS THE HOLDING OF MAY AND THE
UNDERLYING APPROACH OF NORTHERN TRUST HAVE NO PRESENT LIFE.  I NOTE
FURTHER THAT THOUGH CONGRESS HAS REFUSED TO PERMIT PRE-1931 TRUSTS TO
BE LIABLE TO A RULE OTHER THAN THAT OF MAY, IN 1949 THIS COURT ITSELF
CAME TO THE CONCLUSION THAT MAY WAS WRONG, AND EFFECTED "A COMPLETE
REJECTION" OF ITS REASONING.  COMMISSIONER V. ESTATE OF CHURCH, 335
U.S. 632, /12/  645. 

I SERIOUSLY DOUBT THAT ONE COULD HAVE CONFIDENTLY RELIED ON REINECKE
V. NORTHERN TRUST CO. WHEN BYRUM DRAFTED HIS TRUST AGREEMENT IN 1968. 
THIS COURT IS CERTAINLY NOT BOUND BY ITS LOGIC, IN 1972.  I DO NOT MEAN
ANY DISRESPECT, BUT AS MR. JUSTICE CARDOZO SAID ABOUT ANOTHER CASE,
NORTHERN TRUST IS A DECISION "AS MOULDY AS THE GRAVE FROM WHICH COUNSEL
. . . BROUGHT IT FORTH TO FACE THE LIGHT OF A NEW AGE."  B. CARDOZO,
THE GROWTH OF THE LAW, IN SELECTED WRITINGS 244 (M. HALL ED. 1947). 

2.  THE MAJORITY ARGUES THAT THERE WERE SEVERAL LOWER COURT CASES
DECIDED AFTER THE ENACTMENT OF SEC. 2036(A)(2) UPON WHICH BYRUM WAS
ENTITLED TO RELY, AND IT IS QUITE TRUE THAT CASES EXIST HOLDING THAT A
SETTLOR'S RETENTION OF THE POWER TO INVEST THE ASSETS OF A TRUST DOES
NOT BY ITSELF RENDER THE TRUST TAXABLE UNDER SEC. 2036(A)(2).  BUT THE
MAJORITY'S EMPHASIS ON THESE CASES AS A PROPER FOUNDATION FOR BYRUM'S
RELIANCE IS DOUBLY WRONG.  FIRST, IT COULD NOT HAVE EVADED BYRUM'S
ATTENTION AND SHOULD NOT ESCAPE THE MAJORITY THAT ALL CITED PRIOR CASES
- SAVE KING (THE TAX COURT CASE WRITTEN FOUR YEARS AFTER BYRUM
STRUCTURED HIS TRUST)-- INVOLVED RETENTION OF POWER TO INVEST BY THE
SETTLOR'S APPOINTMENT OF HIMSELF AS A TRUSTEE; THAT IS, THEY POSED
INSTANCES IN WHICH THE SETTOR'S RETAINED POWER WAS CONSTRAINED BY A
FIDUCIARY OBLIGATION TO TREAT THE LIFE TENANT BENEFICIARIES AND
REMAINDERMAN BENEFICIARIES EXACTLY AS SPECIFIED IN THE TRUST
INSTRUMENT.  THUS, THE "FREEDOM" TO REALLOCATE INCOME BETWEEN LIFE
TENANTS AND REMAINDERMEN BY, E.G., INVESTING IN WASTING ASSETS WITH A
HIGH PRESENT RETURN AND NO LONG-TERM VALUE, WAS LIMITED BY A JUDICIALLY
ENFORCEABLE STRICT STANDARD CAPABLE OF INVOCATION BY THE TRUST
BENEFICIARIES BY REFERENCE TO THE TERMS OF THE TRUST AGREEMENT.  SEE
JENNINGS V. SMITH, 161 F.2D 74 (CA2 1947), THE LEADING CASE.  BYRUM
MUST HAVE REALIZED THAT THE SITUATION HE WAS STRUCTURING WAS QUITE
DIFFERENT.  BY ACCORDING HIMSELF POWER OF CONTROL OVER THE TRUST INCOME
BY AN INDIRECT MEANS, HE KEPT HIMSELF QUITE FREE OF A FIDUCIARY
OBLIGATION MEASURED BY AN ASCERTAINABLE STANDARD IN THE TRUST
AGREEMENT.  PUTTING ASIDE THE QUESTION OF WHETHER THE SITUATION
DESCRIBED SHOULD BE DISTINGUISHED FROM BYRUM'S SCHEME, SURELY IT MUST
BE ACKNOWLEDGED THAT THERE WAS AN APPARENT RISK THAT THESE SITUATIONS
COULD BE DISTINGUISHED BY REVIEWING COURTS. 

SECOND, THE MAJORITY'S ANALYSIS OF THE CASE LAW SKIPS OVER THE
UNCERTAINTY AT THE TIME BYRUM WAS DRAFTING HIS TRUST AGREEMENT ABOUT
EVEN THE GENERAL RULE THAT A SETTLOR COULD RETAIN CONTROL OVER A
TRUST'S INVESTMENTS IF HE BOUND HIMSELF AS A TRUSTEE TO AN
ASCERTAINABLE METHOD OF INCOME DISTRIBUTION.  WHILE BYRUM AND HIS
LAWYER WERE PONDERING THE TERMS OF THE TRUST AGREEMENT NOW IN
LITIGATION, THE COURT OF APPEALS FOR THE FIRST CIRCUIT WAS
RECONSIDERING WHETHER A SETTLOR COULD RETAIN POWER OVER HIS TRUST'S
INVESTMENTS EVEN WHEN HE BOUND HIMSELF TO A FIDUCIARY'S STRICTEST
STANDARDS OF DISINTERESTED OBLIGATION TO HIS TRUST'S BENEFICIARIES. 
EARLY IN 1958 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS HAD RULED THAT A SETTLOR COULD NOT MAINTAIN POWERS OF
MANAGEMENT OF A TRUST EVEN AS A TRUSTEE WITHOUT ASSUMING ESTATE TAX
LIABILITY.  STATE STREET TRUST CO. V. UNITED STATES, 160 F.SUPP.  877. 
THE ESTATE'S EXECUTOR APPEALED THIS DECISION AND ARGUED IT BEFORE THE
FIRST CIRCUIT PANEL ON OCTOBER 7, 1958.  BYRUM'S TRUST AGREEMENT WAS
MADE AMIDST THIS LITIGATION, ON DECEMBER 8.  ON JANUARY 23, 1959, THE
FIRST CIRCUIT AFFIRMED THE DISTRICT COURT.  263 F.2D 635.  /13/ 

THE POINT IS NOT SIMPLY THAT BYRUM WAS ON NOTICE THAT HE RISKED
TAXABILITY BY RETAINING THE POWERS HE RETAINED WHEN HE CREATED HIS
TRUST-- THOUGH THAT IS TRUE.  IT IS ALSO THAT WITHIN A MONTH OF THE
TRUST'S CREATION IT SHOULD HAVE BEEN CRYSTAL CLEAR THAT BYRUM RAN A
SUBSTANTIAL RISK OF TAXATION BY CONTINUED RETENTION OF CONTROL OVER THE
TRUST'S STOCK.  ANY RETAINED RIGHT CAN BE RESIGNED.  THAT BYRUM
PERSISTED IN HOLDING THESE RIGHTS CAN ONLY BE VIEWED AS AN INDICATION
OF THE VALUE HE PLACED UPON THEIR ENJOYMENT, AND OF THE TAX RISK HE WAS
WILLING TO ASSUME IN ORDER TO RETAIN CONTROL. 

THE PERCEPTION THAT A SETTLOR RAN SUBSTANTIAL RISK OF ESTATE TAX IF
HE INSISTED ON RETAINING POWER OVER THE FLOW OF TRUST INCOME IS HARDLY
SOME SUBTLE DIVINATION OF A LATTER-DAY OBSERVER OF THE 1958-1959 TAX
LANDSCAPE.  CONTEMPORARY OBSERVERS SAW THE SAME THING.  A SUMMARY OF
THE FIELD IN THE 1959 TAX LAW REVIEW CONCLUDED:  "UNTIL THE LAW IS MADE
MORE DEFINITE, A GRANTOR WHO RETAINS ANY MANAGEMENT POWERS IS
PROCEEDING AT HIS OWN RISK.  . . . (THERE IS NO CERTAINTY.  . . . "
GRAY & COVEY, STATE STREET-- A CASE STUDY OF SECTIONS 2036(A)(2) AND
2038, 15 TAX L.REV.  75, 102.  THE RELEVANT SUBCOMMITTEE OF THE
AMERICAN BAR ASSOCIATION COMMITTEE ON ESTATE AND TAX PLANNING HARDLY
THOUGHT RELIANCE APPROPRIATE.  IT WROTE IN 1960 THAT: 

"THE TAX-WISE DRAFTSMAN MUST NOW UNDERTAKE TO REVIEW EVERY LIVING
TRUST IN HIS OFFICE INTENDED TO BE EXCLUDED FROM THE SETTLOR'S ESTATE
IN WHICH THE SETTLOR ACTS AS A TRUSTEE WITH AUTHORITY TO:  "1. 
EXERCISE BROAD AND VIRTUALLY UNLIMITED INVESTMENT POWERS.  . . . "  TAX
WISE DRAFTING OF FIDUCIARY POWERS, 4 TAX COUNSELLOR'S QUARTERLY 333,
336. 

MORE COULD BE SAID, BUT I THINK IT IS CLEAR THAT THE MAJORITY SHOULD
FIND NO SOLACE IN ITS RELIANCE ARGUMENT. 

        V 

THE MAJORITY, I REPEAT, HAS ERRED IN EVERY SUBSTANTIAL RESPECT.  IT
REMAINS ONLY TO NOTE THAT IF IT IS WRONG IN ANY SUBSTANTIAL RESPECT--
I.E., EITHER IN ITS SEC. 2036(A)(1) OR (A)(2) ARGUMENTS-- BYRUM'S TRUST
IS BY LAW LIABLE TO TAXATION. 

/1/  THE TRUST HELD $89,000 WORTH OF STOCK IN BYRUM-CONTROLLED
CORPORATIONS AND ONLY ONE OTHER ASSET:  THREE SERIES E UNITED STATES
SAVINGS BONDS WORTH A TOTAL OF $300 AT MATURITY.  SEE "YEARLY LIST OF
(TRUST) ASSETS," APP. 27-29.  CONSEQUENTLY, I DO NOT ACCORD MUCH WEIGHT
TO THE MAJORITY'S POINT THAT BYRUM COULD NOT PREVENT THE TRUSTEE FROM
MAKING PAYMENTS "FROM OTHER TRUST ASSETS." 

/2/  TRANSCRIPT OF RECORD 3, IN NO. 90, O.T. 1928, REINECKE V.
NORTHERN TRUST CO., 278 U.S. 339 (1929). 

/3/  I AM CONSTRAINED TO NOTE THAT NOWHERE IN THE STATUTE (WHICH THE
MAJORITY ELSEWHERE IN ITS ARGUMENT WOULD READ WITH EXTREME LITERALNESS)
DO THE WORDS "SUBSTANTIAL" AND "PRESENT"-- OR SUGGESTIONS TO THAT
EFFECT-- APPEAR.  THE PHRASE "SUBSTANTIAL PRESENT ECONOMIC BENEFIT"
DOES APPEAR IN COMMISSIONER V. ESTATE OF HOLMES, 326 U.S. 480, 487
(1946), FROM WHICH IT IS QUOTED BY THE MAJORITY.  BUT THERE THE COURT
HELD HOLMES' ESTATE LIABLE TO TAXATION ON THE CORPUS OF AN IRREVOCABLE
TRUST BECAUSE THE SETTLOR (HOLMES) HAD KEPT THE POWER FOR HIMSELF AS
TRUSTEE TO DISTRIBUTE OR RETAIN TRUST INCOME AT HIS DISCRETION.  THE
COURT HELD THAT THIS POWER ENABLED THE SETTLOR TO RETARD OR ACCELERATE
THE BENEFICIARIES'"ENJOYMENT" AT HIS WHIM.  THE DONOR HAD THUS KEPT "SO
STRONG A HOLD OVER THE ACTUAL AND IMMEDIATE ENJOYMENT OF WHAT HE
(ALLEGEDLY HAD PUT) BEYOND HIS OWN POWER" THAT HE COULD NOT BE SAID TO
HAVE "DIVESTED HIMSELF OF THAT DEGREE OF CONTROL WHICH (A PROVISION
ANALOGOUS TO SEC. 2036(A)(2)) REQUIRES IN ORDER TO AVOID THE TAX."  326
U.S.,AT 487.  HOLMES IS THUS STRONG PRECEDENT CONTRARY TO THE
MAJORITY'S SEC. 2036(A)(2) ARGUMENT.  SEE ALSO LOBER V. UNITED STATES,
346 U.S. 335 (1953); IT CERTAINLY IS NOT A CASE IN WHICH THE COURT
INTENDED OR ATTEMPTED TO NARROW THE MEANING OF SEC. 2036(A)(1). 

/4/  SEE, E.G., HONIGMAN V. GREEN GIANT CO., 208 F.SUPP.  754,
AFF'D, 309 F.2D 667 (CA8 1962), CERT. DENIED, 372 U.S. 941 (1963);
ESSEX UNIVERSAL CORP. V. YATES, 305 F.2D 572 (CA2 1962); PERLMAN V.
FELDMANN, 219 F.2D 173 (CA2 1955). 

/5/  "(SHAREHOLDERS IN A CLOSE CORPORATION ARE USUALLY VITALLY
INTERESTED IN MAINTAINING THEIR PROPORTIONATE CONTROL . . . . "  1
F.O'NEAL, CLOSE CORPORATIONS 3.39, P. 43 (1971).  AT LEAST SINCE
PERLMAN V. FELDMANN, SUPRA, THE ACADEMIC DISPUTE HAS NOT BEEN OVER THE
EXISTENCE OF CONTROL, OR ITS VALUE, BUT, RATHER, OVER WHO IS TO BENEFIT
FROM THE PREMIUM RECEIVED UPON ITS SALE.  SEE LEECH, TRANSACTIONS IN
CORPORATE CONTROL, 104 U.PA.L.REV.  725 (1956); HILL, THE SALE OF
CONTROLLING SHARES, 70 HARV.L.REV.  986 (1957); BAYNE, THE SALE-OF
CONTROL PREMIUM:  THE DISPOSITION, 57 CALIF.L.REV.  615 (1969); BAYNE,
THE NONINVESTMENT VALUE OF CONTROL STOCK, 45 IND.L.J. 317 (1970). 

/6/  SEE, E.G., THE TRANSACTIONS DESCRIBED IN BAYNE, SUPRA, N. 5, AT
617. 

/7/  SEE N. 3, SUPRA. 

/8/  THIS INCOMPATIBILITY WAS READILY PERCEIVED BY THE INTERNAL
REVENUE SERVICE.  SHORTLY AFTER O'MALLEY WAS HANDED DOWN, IT
PROMULGATED REV. RUL. 67-54 (1967) WHICH CONCLUDED: 

"WHERE A DECEDENT TRANSFERS NONVOTING STOCK IN TRUST AND HOLDS FOR
THE REMAINDER OF HIS LIFE VOTING STOCK GIVING HIM CONTROL OVER THE
DIVIDEND POLICY OF THE CORPORATION, HE HAS RETAINED, FOR A PERIOD WHICH
DID NOT IN FACT END BEFORE HIS DEATH, THE RIGHT TO DETERMINE THE INCOME
FROM THE NONVOTING STOCK.  IF HE ALSO RETAINS CONTROL OVER THE
DISPOSITION OF THE NONVOTING STOCK, WHETHER AS TRUSTEE, BY RESTRICTION
UPON THE TRUSTEE, OR ALONE OR IN CONJUNCTION WITH ANOTHER, HE HAS IN
FACT MADE A TRANSFER WHEREBY HE HAS RETAINED FOR HIS LIFE THE RIGHT TO
DESIGNATE THE PERSONS WHO SHALL POSSESS OR ENJOY THE TRANSFERRED
PROPERTY OR THE INCOME THEREFROM.  SINCE UNDER SECTION 20.2036-1(B)(3)
OF THE ESTATE TAX REGULATIONS IT IS IMMATERIAL IN WHAT CAPACITY A POWER
WAS EXERCISABLE BY THE DECEDENT, IT IS SUFFICIENT THAT THE POWER WAS
EXERCISABLE IN THE CAPACITY OF CONTROLLING STOCKHOLDER.  UNDER THE
FACTS OF THIS CASE, THEREFORE, THE DECEDENT HAS MADE A TRANSFER WITH A
RESERVED POWER WITHIN THE MEANING OF SECTION 2036(A) OF THE CODE. 
/9/  THIS CALL FOR LITERALNESS STRONGLY CONTRASTS WITH THE MAJORITY'S
SEC. 2036(A)(2) ANALYSIS, SEE N. 3, SUPRA. 

/10/  THE MAJORITY'S ARGUMENT IGNORES THE FACT THAT WITHIN A WIDE
AREA OF DISCRETION BYRUM HAD THE "RIGHT" TO ALLOCATE CORPORATE INCOME
TO PURPOSES OTHER THAN PAYMENT OF DIVIDENDS, AND THUS THE "RIGHT" TO
SHUT OFF INCOME TO THE TRUST'S LIFE TENANTS. 

/11/  THE INTENT OF CONGRESSMEN AND THE CARE WITH WHICH THEY
MEASURED THE LANGUAGE WHICH THE MAJORITY THINKS WAS CAREFULLY LIMITED
IS SUGGESTED BY THE FOLLOWING: 

"MR. HAWLEY.  MR. SPEAKER, I ASK UNANIMOUS CONSENT FOR THE PRESENT
CONSIDERATION OF A JOINT RESOLUTION (H.J. RES. 529) RELATING TO THE
REVENUE, REPORTED FROM THE COMMITTEE ON WAYS AND MEANS.  (THE
RESOLUTION, SEC. 2036(A)(1) AND (2) SUBSTANTIALLY AS THEY APPEAR TODAY,
WAS READ.) 

"THE SPEAKER.  IS THERE OBJECTION? 

"MR. SCHAFER OF WISCONSIN.  RESERVING THE RIGHT TO OBJECT, I SHALL
OBJECT UNLESS THE GENTLEMAN EXPLAINS JUST WHAT THE BILL IS. 

"MR. HAWLEY.  MR. SPEAKER AND GENTLEMEN, THE SUPREME COURT YESTERDAY
HANDED DOWN A DECISION TO THE EFFECT THAT IF A PERSON CREATES A TRUST
OF HIS PROPERTY AND PROVIDES THAT, DURING HIS LIFETIME, HE SHALL ENJOY
THE BENEFITS OF IT, AND WHEN IT IS DISTRIBUTED AFTER HIS DEATH IT GOES
TO HIS HEIRS-- THE SUPREME COURT HELD THAT IT GOES TO HIS HEIRS FREE OF
ANY ESTATE TAX. 

        .          .          .    . 

"MR. SCHAFER OF WISCONSIN.  THIS IS A BILL TO TAX THE RICH MAN.  I
SHALL NOT OBJECT. 

"MR. COLLINS.  I WOULD LIKE TO HAVE A LITTLE MORE EXPLANATION. 

"MR. SABBATH.  RESERVING THE RIGHT TO OBJECT, ALL THE RESOLUTION
PURPORTS TO DO IS TO PLACE A TAX ON THESE TRUSTS THAT HAVE BEEN IN
VOGUE FOR THE LAST FEW YEARS FOR THE PURPOSE OF EVADING THE INHERITANCE
TAX ON THE PART OF SOME OF THESE RICH ESTATES? 

"MR. HAWLEY.  IT PROVIDES THAT HEREAFTER NO SUCH METHOD SHALL BE
USED TO EVADE THE TAX. 

"MR. SABATH.  THAT IS GOOD LEGISLATION."  74 CONG.REC.  7198. 

/12/  IN CONSIDERING THIS AND ITS COMPANION CASE, ESTATE OF SPIEGEL
V. COMMISSIONER, 335 U.S. 701 (1949), THE COURT IN EFFECT INVITED
ARGUMENT ON WHETHER NORTHERN TRUST ITSELF SHOULD BE OVERRULED.  JOURNAL
OF THE SUPREME COURT, O.T. 1947, PP. 296-297.  THOUGH THE COURT HELD
FOR THE GOVERNMENT WITHOUT HAVING TO REACH THIS ISSUE, I NOTE THAT IN
THE 23 YEARS SINCE CHURCH AND SPIEGEL NO OPINION OF THIS COURT HAS ONCE
CITED, MUCH LESS RELIED UPON, NORTHERN TRUST.  MR. JUSTICE REED,
DISSENTING IN CHURCH AND CONCURRING IN SPIEGEL, ANNOUNCED AT THE TIME
THAT HE THOUGHT THESE CASES OVERRULED NORTHERN TRUST. 

/13/  THE FIRST CIRCUIT AGAIN SHIFTED ITS POSITION ON THIS QUESTION
IN OLD COLONY TRUST CO. V. UNITED STATES, 423 F.2D 601 (1970), BUT THIS
CHANGE IS OBVIOUSLY IRRELEVANT TO THE MAJORITY'S ARGUMENT AS TO THE
LEGITIMACY OF BYRUM'S RELIANCE FROM 1958 TO 1964. 

MATTHEW J. ZINN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
CRAMPTON, LORING W. POST, AND DONALD H. OLSON. 

LARRY H. SNYDER ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

SIMON H. RIFKIND, ADRIAN W. DEWIND, JAMES B. LEWIS, AND MAURICE
AUSTIN FILED A BRIEF FOR GILMAN ET AL., EXECUTORS, AS AMICI CURIAE
URGING AFFIRMANCE. 
..END :






HEALY V. JAMES, 408 U.S. 169 


       HEALY ET AL. V. JAMES ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

        NO. 71-452.  ARGUED MARCH 28, 1972-- DECIDED JUNE 26, 1972 


PETITIONERS, SEEKING TO FORM A LOCAL CHAPTER OF STUDENTS FOR A
DEMOCRATIC SOCIETY (SDS) AT A STATE-SUPPORTED COLLEGE, WERE DENIED
RECOGNITION AS A CAMPUS ORGANIZATION.  RECOGNITION WOULD HAVE ENTITLED
PETITIONERS TO USE CAMPUS FACILITIES FOR MEETINGS AND TO USE OF THE
CAMPUS BULLETIN BOARD AND SCHOOL NEWSPAPER.  THE COLLEGE PRESIDENT
DENIED RECOGNITION BECAUSE HE WAS NOT SATISFIED THAT PETITIONERS' GROUP
WAS INDEPENDENT OF THE NATIONAL SDS, WHICH HE CONCLUDED HAS A
PHILOSOPHY OF DISRUPTION AND VIOLENCE IN CONFLICT WITH THE COLLEGE'S
DECLARATION OF STUDENT RIGHTS.  PETITIONERS THEREUPON BROUGHT THIS
ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF.  THE DISTRICT COURT FIRST
ORDERED A FURTHER ADMINISTRATIVE HEARING, AFTER WHICH THE PRESIDENT
REAFFIRMED HIS PRIOR DECISION.  APPROVING THE PRESIDENT'S JUDGMENT, THE
DISTRICT COURT HELD THAT PETITIONERS HAD FAILED TO SHOW THAT THEY COULD
FUNCTION FREE FROM THE NATIONAL SDS AND THAT THE COLLEGE'S REFUSAL TO
APPROVE THE GROUP, WHICH THE COURT FOUND "LIKELY TO CAUSE VIOLENT ACTS
OF DISRUPTION," DID NOT VIOLATE PETITIONERS' ASSOCIATIONAL RIGHTS.  THE
COURT OF APPEALS, PURPORTING NOT TO REACH THE FIRST AMENDMENT ISSUES,
AFFIRMED ON THE GROUND THAT PETITIONERS HAD FAILED TO AVAIL THEMSELVES
OF THE DUE PROCESS ACCORDED TO THEM AND TO MEET THEIR BURDEN OF
COMPLYING WITH THE PREVAILING STANDARDS FOR RECOGNIATION.  HELD: 

1.  THE COURTS ERRED IN (1) DISCOUNTING THE COGNIZABLE FIRST
AMENDMENT ASSOCIATIONAL INTEREST THAT PETITIONERS HAD IN FURTHERING
THEIR PERSONAL BELIEFS AND (2) ASSUMING THAT THE BURDEN WAS ON
PETIONERS TO SHOW ENTITLEMENT TO RECOGNITION BY THE COLLEGE RATHER THAN
ON THE COLLEGE TO JUSTIFY ITS NONRECOGNITION OF THE GROUP, ONCE
PETITIONERS HAD MADE APPLICATION CONFORMABLY TO COLLEGE REQUIREMENTS. 
PP. 180-185. 

2.  INSOFAR AS THE DENIAL OF RECOGNITION TO PETITIONERS' GROUP WAS
BASED ON AN ASSUMED RELATIONSHIP WITH THE NATIONAL SDS, OR WAS A RESULT
OF DISAGREEMENT WITH THE GROUP'S PHILOSOPHY, OR WAS A CONSEQUENCE OF A
FEAR OF DISRUPTION, FOR WHICH THERE WAS NO SUPPORT IN THE RECORD, THE
COLLEGE'S DECISION VIOLATED THE PETITIONERS' FIRST AMENDMENT RIGHTS.  A
PROPER BASIS FOR NONRECOGNITION MIGHT HAVE BEEN AFFORDED, HOWEVER, BY A
SHOWING THAT THE GROUP REFUSED TO COMPLY WITH A RULE REQUIRING THEM TO
ABIDE BY REASONABLE CAMPUS REGULATIONS.  SINCE THE RECORD IS NOT CLEAR
WHETHER THE COLLEGE HAS SUCH A RULE AND, IF SO, WHETHER PETITIONERS
INTEND TO OBSERVE IT, THESE ISSUES REMAIN TO BE RESOLVED.  PP. 185
194. 

445 F.2D 1122, REVERSED AND REMANDED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED; BURGER, C. J., FILED A CONCURRING OPINION, POST, P. 195. 
DOUGLAS, J., FILED A SEPARATE OPINION, POST, P. 196.  REHNQUIST, J.,
FILED A STATEMENT CONCURRING IN THE RESULT, POST, P. 201. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE, ARISING OUT OF A DENIAL BY A STATE COLLEGE OF OFFICIAL
RECOGNITION TO A GROUP OF STUDENTS WHO DESIRED TO FORM A LOCAL CHAPTER
OF STUDENTS FOR A DEMOCRATIC SOCIETY (SDS), PRESENTS THIS COURT WITH
QUESTIONS REQUIRING THE APPLICATION OF WELL-ESTABLISHED FIRST AMENDMENT
PRINCIPLES.  WHILE THE FACTUAL BACKGROUND OF THIS PARTICULAR CASE
RAISES THESE CONSTITUTIONAL ISSUES IN A MANNER NOT HERETOFORE PASSED ON
BY THE COURT, AND ONLY INFREQUENTLY PRESENTED TO LOWER FEDERAL COURTS,
OUR DECISION TODAY IS GOVERNED BY EXISTING PRECEDENT.  AS THE CASE
INVOLVES DELICATE ISSUES CONCERNING THE ACADEMIC COMMUNITY, WE APPROACH
OUR TASK WITH SPECIAL CAUTION, RECOGNIZING THE MUTUAL INTEREST OF
STUDENTS, FACULTY MEMBERS, AND ADMINISTRATORS IN AN ENVIRONMENT FREE
FROM DISRUPTIVE INTERFERENCE WITH THE EDUCATIONAL PROCESS.  WE ALSO ARE
MINDFUL OF THE EQUALLY SIGNIFICANT INTEREST IN THE WIDEST LATITUDE FOR
FREE EXPRESSION AND DEBATE CONSONANT WITH THE MAINTENANCE OF ORDER. 
WHERE THESE INTEREST APPEAR TO COMPETE THE FIRST AMENDMENT, MADE
BINDING ON THE STATES BY THE FOURTEENTH AMENDMENT, STRIKES THE REQUIRED
BALANCE. 

        I 

WE MENTION BRIEFLY AT THE OUTSET THE SETTING IN 1969-1970.  A
CLIMATE OF UNREST PREVAILED ON MANY COLLEGE CAMPUSES IN THIS COUNTRY. 
THERE HAD BEEN WIDESPREAD CIVIL DISOBEDIENCE ON SOME CAMPUSES,
ACCOMPANIED BY THE SEIZURE OF BUILDINGS, VANDALISM, AND ARSON.  SOME
COLLEGES HAD BEEN SHUT DOWN ALTOGETHER, WHILE AT OTHERS FILES WERE
LOOTED AND MANUSCRIPTS DESTROYED.  SDS CHAPTERS ON SOME OF THOSE
CAMPUSES HAD BEEN A CATALYTIC FORCE DURING THIS PERIOD.  /1/  ALTHOUGH
THE CAUSES OF CAMPUS DISRUPTION WERE MANY AND COMPLEX, ONE OF THE PRIME
CONSEQUENCES OF SUCH ACTIVITIES WAS THE DENIAL OF THE LAWFUL EXERCISE
OF FIRST AMENDMENT RIGHTS TO THE MAJORITY OF STUDENTS BY THE FEW. 
INDEED, MANY OF THE MOST CHERISHED CHARACTERISTICS LONG ASSOCIATED WITH
INSTITUTIONS OF HIGHER LEARNING APPEARED TO BE ENDANGERED. 
FORTUNATELY, WITH THE PASSAGE OF TIME, A CALMER ATMOSPHERE AND GREATER
MATURITY NOW PERVADE OUR CAMPUSES.  YET, IT WAS IN THIS CLIMATE OF
EARLIER UNREST THAT THIS CASE AROSE. 

PETITIONERS ARE STUDENTS ATTENDING CENTRAL CONNECTICUT STATE COLLEGE
(CCSC), A STATE-SUPPORTED INSTITUTION OF HIGHER LEARNING.  IN SEPTEMBER
1969 THEY UNDERTOOK TO ORGANIZE WHAT THEY THEN REFERRED TO AS A "LOCAL
CHAPTER" OF SDS.  PURSUANT TO PROCEDURES ESTABLISHED BY THE COLLEGE,
PETITIONERS FILED A REQUEST FOR OFFICIAL RECOGNITION AS A CAMPUS
ORGANIZATION WITH THE STUDENT AFFAIRS COMMITTEE, A COMMITTEE COMPOSED
OF FOUR STUDENTS, THREE FACULTY MEMBERS, AND THE DEAN OF STUDENT
AFFAIRS.  THE REQUEST SPECIFIED THREE PURPOSES FOR THE PROPOSED
ORGANIZATION'S EXISTENCE.  IT WOULD PROVIDE "A FORUM OF DISCUSSION AND
SELF-EDUCATION FOR STUDENTS DEVELOPING AN ANALYSIS OF AMERICAN
SOCIETY"; IT WOULD SERVE AS "AN AGENCY FOR INTEGRATING THOUGHT WITH
ACTION SO AS TO BRING ABOUT CONSTRUCTIVE CHANGES"; AND IT WOULD
ENDEAVOR TO PROVIDE "A COORDINATING BODY FOR RELATING THE PROBLEMS OF
LEFTIST STUDENTS" WITH OTHER INTERESTED GROUPS ON CAMPUS AND IN THE
COMMUNITY.  /2/  THE COMMITTEE, WHILE SATISFIED THAT THE STATEMENT OF
PURPOSES WAS CLEAR AND UNOBJECTIONABLE ON ITS FACE, EXHIBITED CONCERN
OVER THE RELATIONSHIP BETWEEN THE PROPOSED LOCAL GROUP AND THE NATIONAL
SDS ORGANIZATION.  IN RESPONSE TO INQUIRIES, REPRESENTATIVES OF THE
PROPOSED ORGANIZATION STATED THAT THEY WOULD NOT AFFILIATE WITH ANY
NATIONAL ORGANIZATION AND THAT THEY GROUP WOULD REMAIN "COMPLETELY
INDEPENDENT." 

IN RESPONSE TO OTHER QUESTIONS ASKED BY COMMITTEE MEMBERS CONCERNING
SDS' REPUTATION FOR CAMPUS DISRUPTION, THE APPLICANTS MADE THE
FOLLOWING STATEMENTS, WHICH PROVED SIGNIFICANT DURING THE LATER STAGES
OF THESE PROCEEDINGS: 

     "Q.  HOW WOULD YOU RESPOND TO ISSUES OF VIOLENCE AS OTHER
S.D.S. CHAPTERS HAVE? 

     "A.  OUR ACTION WOULD HAVE TO BE DEPENDENT UPON EACH ISSUE. 

 "Q.  WOULD YOU USE ANY MEANS POSSIBLE? 

     "A.  NO I CAN'T SAY THAT; WOULD NOT KNOW UNTIL WE KNOW WHAT
THE ISSUES ARE. 

        .          .          .          . 

"Q.  COULD YOU ENVISION THE S.D.S. INTERRUPTING A CLASS? 

   "A.  IMPOSSIBLE FOR ME TO SAY." 

WITH THIS INFORMATION BEFORE IT, THE COMMITTEE REQUESTED AN
ADDITIONAL FILING BY THE APPLICANTS, INCLUDING A FORMAL STATEMENT
REGARDING AFFILIATIONS.  THE AMENDED APPLICATION FILED IN RESPONSE
STATED FLATLY THAT "CCSC STUDENTS FOR A DEMOCRATIC SOCIETY ARE NOT
UNDER THE DICTATES OF ANY NATIONAL ORGANIZATION."  /3/  AT A SECOND
HEARING BEFORE THE STUDENT AFFAIRS COMMITTEE, THE QUESTION OF
RELATIONSHIP WITH THE NATIONAL ORGANIZATION WAS RAISED AGAIN.  ONE OF
THE ORGANIZERS EXPLAINED THAT THE NATIONAL SDS WAS DIVIDED INTO SEVERAL
"FACTIONAL GROUPS," THAT THE NATIONAL-LOCAL RELATIONSHIP WAS A LOOSE
ONE, AND THAT THE LOCAL ORGANIZATION ACCEPTED ONLY "CERTAIN IDEAS" BUT
NOT ALL OF THE NATIONAL ORGANIZATION'S AIMS AND PHILOSOPHIES. 

BY A VOTE OF SIX TO TWO THE COMMITTEE ULTIMATELY APPROVED THE
APPLICATION AND RECOMMENDED TO THE PRESIDENT OF THE COLLEGE, DR. JAMES,
THAT THE ORGANIZATION BE ACCORDED OFFICIAL RECOGNITION.  IN APPROVING
THE APPLICATION, THE MAJORITY INDICATED THAT ITS DECISION WAS PREMISED
ON THE BELIEF THAT VARYING VIEWPOINTS SHOULD BE REPRESENTED ON CAMPUS
AND THAT SINCE THE YOUNG AMERICANS FOR FREEDOM, THE YOUNG DEMOCRATS,
THE YOUNG REPUBLICANS, AND THE LIBERAL PARTY ALL ENJOYED RECOGNIZED
STATUS, A GROUP SHOULD BE AVAILABLE WITH WHICH "LEFT WING" STUDENTS
MIGHT IDENTIFY.  THE MAJORITY ALSO NOTED AND RELIED ON THE
ORGANIZATION'S CLAIM OF INDEPENDENCE.  FINALLY, IT ADMONISHED THE
ORGANIZATION THAT IMMEDIATE SUSPENSION WOULD BE CONSIDERED IF THE
GROUP'S ACTIVITIES PROVED INCOMPATIBLE WITH THE SCHOOL'S POLICIES
AGAINST INTERFERENCE WITH THE PRIVACY OF OTHER STUDENTS OR DESTRUCTION
OF PROPERTY.  THE TWO DISSENTING MEMBERS BASED THEIR RESERVATION
PRIMARILY ON THE LACK OF CLARITY REGARDING THE ORGANIZATION'S
INDEPENDENCE. 

SEVERAL DAYS LATER, THE PRESIDENT REJECTED THE COMMITTEE'S
RECOMMENDATION, AND ISSUED A STATEMENT INDICATING THAT PETITIONERS'
ORGANIZATION WAS NOT TO BE ACCORDED THE BENEFITS OF OFFICIAL CAMPUS
RECOGNITION.  HIS ACCOMPANYING REMARKS, WHICH ARE SET OUT IN FULL IN
THE MARGIN, /4/  INDICATE SEVERAL REASONS FOR HIS ACTION.  HE FOUND
THAT THE ORGANIZATION'S PHILOSOPHY WAS ANTITHETICAL TO THE SCHOOL'S
POLICIES, /5/  AND THAT THE GROUP'S INDEPENDENCE WAS DOUBTFUL.  HE
CONCLUDED THAT APPROVAL SHOULD NOT BE GRANTED TO ANY GROUP THAT "OPENLY
REPUDIATES" THE COLLEGE'S DEDICATION TO ACADEMIC FREEDOM. 

DENIAL OF OFFICIAL RECOGNITION POSED SERIOUS PROBLEMS FOR THE
ORGANIZATION'S EXISTENCE AND GROWTH.  ITS MEMBERS WERE DEPRIVED OF THE
OPPORTUNITY TO PLACE ANNOUNCEMENTS REGARDING MEETINGS, RALLIES, OR
OTHER ACTIVITIES IN THE STUDENT NEWSPAPER; THEY WERE PRECLUDED FROM
USING VARIOUS CAMPUS BULLETIN BOARDS; AND-- MOST IMPORTANTLY--
NONRECOGNITION BARRED THEM FROM USING CAMPUS FACILITIES FOR HOLDING
MEETINGS.  THIS LATTER DISABILITY WAS BROUGHT HOME TO PETITIONERS
SHORTLY AFTER THE PRESIDENT'S ANNOUNCEMENT.  PETITIONERS CIRCULATED A
NOTICE CALLING A MEETING TO DISCUSS WHAT FURTHER ACTION SHOULD BE TAKEN
IN LIGHT OF THE GROUP'S OFFICIAL REJECTION.  THE MEMBERS MET AT THE
COFFEE SHOP IN THE STUDENT CENTER ("DEVILS' DEN") BUT WERE DISBANDED ON
THE PRESIDENT'S ORDER SINCE NONRECOGNIZED GROUPS WERE NOT ENTITLED TO
USE SUCH FACILITIES.  /6/ 

THEIR EFFORTS TO GAIN RECOGNITION HAVING PROVED ULTIMATELY
UNSUCCESSFUL, AND HAVING BEEN MADE TO FEEL THE BURDEN OF
NONRECOGNITION, PETITIONERS RESORTED TO THE COURTS.  THEY FILED A SUIT
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT,
SEEKING DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE PRESIDENT OF THE
COLLEGE, OTHER ADMINISTRATORS, AND THE STATE BOARD OF TRUSTEES. 
PETITIONERS' PRIMARY COMPLAINT CENTERED ON THE DENIAL OF FIRST
AMENDMENT RIGHTS OF EXPRESSION AND ASSOCIATION ARISING FROM DENIAL OF
CAMPUS RECOGNITION.  THE CAUSE WAS SUBMITTED INITIALLY ON STIPULATED
FACTS, AND, AFTER A SHORT HEARING, THE JUDGE RULED THAT PETITIONERS HAD
BEEN DENIED PROCEDURAL DUE PROCESS BECAUSE THE PRESIDENT HAD BASED HIS
DECISION ON CONCLUSIONS REGARDING THE APPLICANT'S AFFILIATION WHICH
WERE OUTSIDE THE RECORD BEFORE HIM.  THE COURT CONCLUDED THAT IF THE
PRESIDENT WISHED TO ACT ON THE BASIS OF MATERIAL OUTSIDE THE
APPLICATION HE MUST AT LEAST PROVIDE PETITIONERS A HEARING AND
OPPORTUNITY TO INTRODUCE EVIDENCE AS TO THEIR AFFILIATIONS.  311
F.SUPP.  1275, 1279, 1281.  WHILE RETAINING JURISDICTION OVER THE CASE,
THE DISTRICT COURT ORDERED RESPONDENTS TO HOLD A HEARING IN ORDER TO
CLARIFY THE SEVERAL AMBIGUITIES SURROUNDING THE PRESIDENT'S DECISION. 
ONE OF THE MATTERS TO BE EXPLORED WAS WHETHER THE LOCAL ORGANIZATION,
TRUE TO ITS REPEATED AFFIRMATIONS, WAS IN FACT INDEPENDENT OF THE
NATIONAL SDS.  ID., AT 1282.  AND IF THE HEARING DEMONSTRATED THAT THE
TWO WERE NOT SEPARABLE, THE RESPONDENTS WERE INSTRUCTED THAT THEY MIGHT
THEN REVIEW THE "AIMS AND PHILOSOPHY" OF THE NATIONAL ORGANIZATION. 
IBID. 

PURSUANT TO THE COURT'S ORDER, THE PRESIDENT DESIGNATED DEAN JUDD,
THE DEAN OF STUDENT AFFAIRS, TO SERVE AS HEARING OFFICER AND A HEARING
WAS SCHEDULED.  THE HEARING, WHICH SPANNED TWO DATES AND LASTED
APPROXIMATELY TWO HOURS, ADDED LITTLE IN TERMS OF OBJECTIVE SUBSTANTIVE
EVIDENCE TO THE RECORD IN THIS CASE.  PETITIONERS INTRODUCED A
STATEMENT OFFERING TO CHANGE THE ORGANIZATION'S NAME FROM CCSC LOCAL
CHAPTER OF SDS" TO "STUDENTS FOR A DEMOCRATIC SOCIETY OF CENTRAL
CONNECTICUT STATE COLLEGE."  THEY FURTHER REAFFIRMED THAT THEY WOULD
"HAVE NO CONNECTION WHATSOEVER TO THE STRUCTURE OF AN EXISTING NATIONAL
ORGANIZATION."  /7/  PETITIONERS ALSO INTRODUCED THE TESTIMONY OF THEIR
FACULTY ADVISER TO THE EFFECT THAT SOME LOCAL SDS ORGANIZATIONS
ELSEWHERE WERE UNAFFILIATED WITH ANY NATIONAL ORGANIZATION.  THE
HEARING OFFICER, IN ADDITION TO INTRODUCING THE MINUTES FROM THE TWO
PERTINENT STUDENT AFFAIRS COMMITTEE MEETINGS, ALSO INTRODUCED, SUA
SPONTE, PORTIONS OF A TRANSCRIPT OF HEARINGS BEFORE THE UNITED STATES
HOUSE OF REPRESENTATIVES INTERNAL SECURITY COMMITTEE INVESTIGATING THE
ACTIVITIES OF SDS.  EXCERPTS WERE OFFERED BOTH TO PROVE THAT VIOLENT
AND DISRUPTIVE ACTIVITIES HAD BEEN ATTRIBUTED TO SDS ELSEWHERE AND TO
DEMONSTRATE THAT THERE EXISTED A NATIONAL ORGANIZATION THAT RECOGNIZED
AND COOPERATED WITH REGIONAL AND LOCAL COLLEGE CAMPUS AFFILIATES. 
PETITIONERS DID NOT CHALLENGE THE ASSERTED EXISTENCE OF A NATIONAL SDS,
NOR DID THEY QUESTION THAT IT DID HAVE A SYSTEM OF AFFILIATIONS OF SOME
SORT.  THEIR CONTENTION WAS SIMPLY THAT THEIR ORGANIZATION WOULD NOT
ASSOCIATE WITH THAT NETWORK.  THROUGHOUT THE HEARING THE PARTIES WERE
ACTING AT CROSS PURPOSES.  WHAT SEEMED RELEVANT TO ONE APPEARED
COMPLETELY IMMATERIAL TO THE OTHER.  THIS FAILURE OF THE HEARING TO
ADVANCE THE LITIGATION WAS, AT BOTTOM, THE CONSEQUENCE OF A MORE BASIC
FAILURE TO JOIN ISSUE ON THE CONSIDERATIONS THAT SHOULD CONTROL THE
PRESIDENT'S ULTIMATE DECISION, A PROBLEM TO WHICH WE WILL RETURN IN THE
ENSUING SECTION. 

UPON REVIEWING THE HEARING TRANSCRIPT AND EXHIBITS, THE PRESIDENT
REAFFIRMED HIS PRIOR DECISION TO DENY PETITIONERS RECOGNITION AS A
CAMPUS ORGANIZATION.  THE REASONS STATED, CLOSELY PARALLELING HIS
INITIAL REASONS, WERE THAT THE GROUP WOULD BE A "DISRUPTIVE INFLUENCE"
AT CCSC AND THAT RECOGNITION WOULD BE "CONTRARY TO THE ORDERLY PROCESS
OF CHANGE" ON THE CAMPUS. 

AFTER THE PRESIDENT'S SECOND STATEMENT ISSUED, THE CASE THEN
RETURNED TO THE DISTRICT COURT, WHERE IT WAS ORDERED DISMISSED.  THE
COURT CONCLUDED, FIRST, THAT THE FORMAL REQUISITES OF PROCEDURAL DUE
PROCESS HAD BEEN COMPLIED WITH, SECOND, THAT PETITIONERS HAD FAILED TO
MEET THEIR BURDEN OF SHOWING THAT THEY COULD FUNCTION FREE FROM THE
NATIONAL ORGANIZATION, AND, THIRD, THAT THE COLLEGE'S REFUSAL TO PLACE
ITS STAMP OF APPROVAL ON AN ORGANIZATION WHOSE CONDUCT IT FOUND "LIKELY
TO CAUSE VIOLENT ACTS OF DISRUPTION" DID NOT VIOLATE PETITIONERS'
ASSOCIATIONAL RIGHTS.  319 F.SUPP.  113, 116. 

PETITIONERS APPEALED TO THE COURT OF APPEALS FOR THE SECOND CIRCUIT
WHERE, BY A TWO-TO-ONE VOTE, THE DISTRICT COURT'S JUDGMENT WAS
AFFIRMED.  THE MAJORITY PURPORTED NOT TO REACH THE SUBSTANTIVE FIRST
AMENDMENT ISSUES ON THE THEORY THAT PETITIONERS HAD FAILED TO AVAIL
THEMSELVES OF THE DUE PROCESS ACCORDED THEM AND HAD FAILED TO MEET
THEIR BURDEN OF COMPLYING WITH THE PREVAILING STANDARDS FOR
RECOGNITION.  445 F.2D 1122, 1131-1132.  JUDGE SMITH DISSENTED,
DISAGREEING WITH THE MAJORITY'S REFUSAL TO ADDRESS THE MERITS AND
FINDING THAT PETITIONERS HAD BEEN DEPRIVED OF BASIC FIRST AMENDMENT
RIGHTS.  ID., AT 1136.  THIS COURT GRANTED CERTIORARI AND, FOR THE
REASONS THAT FOLLOW, WE CONCLUDE THAT THE JUDGMENTS OF THE COURTS BELOW
MUST BE REVERSED AND THE CASE REMANDED FOR RECONSIDERATION. 

        II 

AT THE OUTSET WE NOTE THAT STATE COLLEGES AND UNIVERSITIES ARE NOT
ENCLAVES IMMUNE FROM THE SWEEP OF THE FIRST AMENDMENT.  "IT CAN HARDLY
BE ARGUED THAT EITHER STUDENTS OR TEACHERS SHED THEIR CONSTITUTIONAL
RIGHTS TO FREEDOM OF SPEECH OR EXPRESSION AT THE SCHOOLHOUSE GATE." 
TINKER V. DES MOINES INDEPENDENT SCHOOL DISTRICT, 393 U.S. 503, 506
(1969).  OF COURSE, AS MR. JUSTICE FORTAS MADE CLEAR IN TINKER, FIRST
AMENDMENT RIGHTS MUST ALWAYS BE APPLIED "IN LIGHT OF THE SPECIAL
CHARACTERISTICS OF THE . . . ENVIRONMENT" IN THE PARTICULAR CASE. 
IBID.  AND, WHERE STATE-OPERATED EDUCATIONAL INSTITUTIONS ARE INVOLVED,
THIS COURT HAS LONG RECOGNIZED "THE NEED FOR AFFIRMING THE
COMPREHENSIVE AUTHORITY OF THE STATES AND OF SCHOOL OFFICIALS,
CONSISTENT WITH FUNDAMENTAL CONSTITUTIONAL SAFEGUARDS, TO PRESCRIBE AND
CONTROL CONDUCT IN THE SCHOOLS."  ID., AT 507.  YET, THE PRECEDENTS OF
THIS COURT LEAVE NO ROOM FOR THE VIEW THAT, BECAUSE OF THE ACKNOWLEDGED
NEED FOR ORDER, FIRST AMENDMENT PROTECTIONS SHOULD APPLY WITH LESS
FORCE ON COLLEGE CAMPUSES THAN IN THE COMMUNITY AT LARGE.  QUITE TO THE
CONTRARY, "(THE VIGILANT PROTECTION OF CONSTITUTIONAL FREEDOMS IS
NOWHERE MORE VITAL THAN IN THE COMMUNITY OF AMERICAN SCHOOLS."  SHELTON
V. TUCKER, 364 U.S. 479, 487 (1960).  THE COLLEGE CLASSROOM WITH ITS
SURROUNDING ENVIRONS IS PECULIARLY THE "'MARKETPLACE OF IDEAS,'" AND WE
BREAK NO NEW CONSTITUTIONAL GROUND IN REAFFIRMING THIS NATION'S
DEDICATION TO SAFEGUARDING ACADEMIC FREEDOM.  KEYISHIAN V. BOARD OF
REGENTS, 385 U.S. 589, 603 (1967); SWEEZY V. NEW HAMPSHIRE, 354 U.S.
234, 249-250 (1957) (PLURALITY OPINION OF MR. CHIEF JUSTICE WARREN),
262 (FRANKFURTER, J., CONCURRING IN RESULT). 

AMONG THE RIGHTS PROTECTED BY THE FIRST AMENDMENT IS THE RIGHT OF
INDIVIDUALS TO ASSOCIATE TO FURTHER THEIR PERSONAL BELIEFS.  WHILE THE
FREEDOM OF ASSOCIATION IS NOT EXPLICITLY SET OUT IN THE AMENDMENT, IT
HAS LONG BEEN HELD TO BE IMPLICIT IN THE FREEDOMS OF SPEECH, ASSEMBLY,
AND PETITION.  SEE, E.G., BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1, 6
(1971); NAACP V. BUTTON, 371 U.S. 415, 430 (1963); LOUISIANA EX REL.
GREMILLION V. NAACP, 366 U.S. 293, 296 (1961); NAACP V. ALABAMA EX REL.
PATTERSON, 357 U.S. 449 (1958) HARLAN, J., FOR A UNANIMOUS COURT). 
THERE CAN BE NO DOUBT THAT DENIAL OF OFFICIAL RECOGNITION, WITHOUT
JUSTIFICATION, TO COLLEGE ORGANIZATIONS BURDENS OR ABRIDGES THAT
ASSOCIATIONAL RIGHT.  THE PRIMARY IMPEDIMENT TO FREE ASSOCIATION
FLOWING FROM NONRECOGNITION IS THE DENIAL OF USE OF CAMPUS FACILITIES
FOR MEETINGS AND OTHER APPROPRIATE PURPOSES.  THE PRACTICAL EFFECT OF
NONRECOGNITION WAS DEMONSTRATED IN THIS CASE WHEN, SEVERAL DAYS AFTER
THE PRESIDENT'S DECISION WAS ANNOUNCED, PETITIONERS WERE NOT ALLOWED TO
HOLD A MEETING IN THE CAMPUS COFFEE SHOP BECUASE THEY WERE NOT AN
APPROVED GROUP. 

PETITIONERS' ASSOCIATIONAL INTERESTS ALSO WERE CIRCUMSCRIBED BY THE
DENIAL OF THE USE OF CAMPUS BULLETIN BOARDS AND THE SCHOOL NEWSPAPER. 
IF AN ORGANIZATION IS TO REMAIN A VIABLE ENTITY IN A CAMPUS COMMUNITY
IN WHICH NEW STUDENTS ENTER ON A REGULAR BASIS, IT MUST POSSESS THE
MEANS OF COMMUNICATING WITH THESE STUDENTS.  MOREOVER, THE
ORGANIZATION'S ABILITY TO PARTICIPATE IN THE INTELLECTUAL GIVE AND TAKE
OF CAMPUS DEBATE, AND TO PURSUE ITS STATED PURPOSES, IS LIMITED BY
DENIAL OF ACCESS TO THE CUSTOMARY MEDIA FOR COMMUNICATING WITH THE
ADMINISTRATION, FACULTY MEMBERS, AND OTHER STUDENTS.  /8/  SUCH
IMPEDIMENTS CANNOT BE VIEWED AS INSUBSTANTIAL. 

RESPONDENTS AND THE COURTS BELOW APPEAR TO HAVE TAKEN THE VIEW THAT
DENIAL OF OFFICIAL RECOGNITION IN THIS CASE ABRIDGED NO CONSTITUTIONAL
RIGHTS.  THE DISTRICT COURT CONCLUDED THAT 

     "PRESIDENT JAMES' DISCRETIONARY ACTION IN DENYING THIS

  APPLICATION CANNOT BE LEGITIMATELY MAGNIFIED AND DISTORTED INTO A

  CONSTITUTIONALLY COGNIZABLE INTERFERENCE WITH THE PERSONAL IDEAS

  OR BELIEFS OF ANY SEGMENT OF THE COLLEGE STUDENTS; NEITHER DOES

  HIS ACTION DETER IN ANY MATERIAL WAY THE INDIVIDUAL ADVOCACY OF

  THEIR PERSONAL BELIEFS; NOR CAN HIS ACTION BE REASONABLY

  CONSTRUED TO BE AN INVASION OF, OR HAVING A CHILLING EFFECT ON

  ACADEMIC FREEDOM."  319 F.SUPP.,AT 116

IN THAT COURT'S VIEW ALL THAT WAS DENIED PETITIONERS WAS THE
"ADMINISTRATIVE SEAL OF OFFICIAL COLLEGE RESPECTABILITY."  /9/  IBID.
A MAJORITY OF THE COURT OF APPEALS AGREED THAT PETITIONERS HAD BEEN
DENIED ONLY THE "COLLEGE'S STAMP OF APPROVAL."  445 F.2D, AT 1131. 
RESPONDENTS TAKE THAT SAME POSITION HERE, ARGUING THAT PETITIONERS
STILL MAY MEET AS A GROUP OFF CAMPUS, THAT THEY STILL MAY DISTRIBUTE
WRITTEN MATERIAL OFF CAMPUS, AND THAT THEY STILL MAY MEET TOGETHER
INFORMALLY ON CAMPUS-- AS INDIVIDUALS, BUT NOT AS CCSC-SDS. 

WE DO NOT AGREE WITH THE CHARACTERIZATION BY THE COURTS BELOW OF THE
CONSEQUENCES OF NONRECOGNITION.  WE MAY CONCEDE, AS DID MR. JUSTICE
HARLAN IN HIS OPINION FOR A UNANIMOUS COURT IN NAACP V. ALABAMA EX REL.
PATTERSON, 357 U.S.,AT 461, THAT THE ADMINISTRATION "HAS TAKEN NO
DIRECT ACTION . . . TO RESTRICT THE RIGHTS OF (PETITIONERS) TO
ASSOCIATE FREELY . . . . "  BUT THE CONSTITUTION'S PROTECTION IS NOT
LIMITED TO DIRECT INTERFERENCE WITH FUNDAMENTAL RIGHTS.  THE
REQUIREMENT IN PATTERSON THAT THE NAACP DISCLOSE ITS MEMBERSHIP LISTS
WAS FOUND TO BE AN IMPERMISSIBLE, THOUGH INDIRECT, INFRINGEMENT OF THE
MEMBERS' ASSOCIATIONAL RIGHTS.  LIKEWISE, IN THIS CASE, THE GROUP'S
POSSIBLE ABILITY TO EXIST OUTSIDE THE CAMPUS COMMUNITY DOES NOT
AMELIORATE SIGNIFICANTLY THE DISABILITIES IMPOSED BY THE PRESIDENT'S
ACTION.  WE ARE NOT FREE TO DISREGARD THE PRACTICAL REALITIES.  MR.
JUSTICE STEWART HAS MADE THE SALIENT POINT:  "FREEDOMS SUCH AS THESE
ARE PROTECTED NOT ONLY AGAINST HEAVY-HANDED FRONTAL ATTACK, BUT ALSO
FROM BEING STIFLED BY MORE SUBTLE GOVERNMENTAL INTERFERENCE."  BATES V.
CITY OF LITTLE ROCK, 361 U.S. 516, 523 (1960).  SEE ALSO SWEEZY V. NEW
HAMPSHIRE, 354 U.S.,AT 263 (FRANKFURTER, J., CONCURRING IN RESULT);
WATKINS V; UNITED STATES, 354 U.S. 178, 197 (1957). 

THE OPINIONS BELOW ALSO ASSUMED THAT PETITIONERS HAD THE BURDEN OF
SHOWING ENTITLEMENT TO RECOGNITION BY THE COLLEGE.  /10/  WHILE
PETITIONERS HAVE NOT CHALLENGED THE PROCEDURAL REQUIREMENT THAT THEY
FILE AN APPLICATION IN CONFORMITY WITH THE RULES OF THE COLLEGE, /11/
THEY DO QUESTION THE VIEW OF THE COURTS BELOW THAT FINAL REJECTION
COULD REST ON THEIR FAILURE TO CONVINCE THE ADMINISTRATION THAT THEIR
ORGANIZATION WAS UNAFFILIATED WITH THE NATIONAL SDS.  FOR REASONS TO BE
STATED LATER IN THIS OPINION, WE DO NOT CONSIDER THE ISSUE OF
AFFILIATION TO BE A CONTROLLING ONE.  BUT, APART FROM ANY PARTICULAR
ISSUE, ONCE PETITIONERS HAD FILED AN APPLICATION IN CONFORMITY WITH THE
REQUIREMENTS, THE BURDEN WAS UPON THE COLLEGE ADMINISTRATION TO JUSTIFY
ITS DECISION OF REJECTION.  SEE, E.G., LAW STUDENTS CIVIL RIGHTS
RESEARCH COUNCIL V. WADMOND, 401 U.S. 154, 162-163 (1971); UNITED
STATES V. O'BRIEN, 391 U.S. 513 (1958).  IT IS TO BE REMEMBERED THAT
THE EFFECT OF THE COLLEGE'S DENIAL OF RECOGNITION WAS A FORM OF PRIOR
RESTRAINT, DENYING TO PETITIONERS' ORGANIZATION THE RANGE OF
ASSOCIATIONAL ACTIVITIES DESCRIBED ABOVE.  WHILE A COLLEGE HAS A
LEGITIMATE INTEREST IN PREVENTING DISRUPTION ON THE CAMPUS, WHICH UNDER
CIRCUMSTANCES REQUIRING THE SAFEGUARDING OF THAT INTEREST MAY JUSTIFY
SUCH RESTRAINT, A "HEAVY BURDEN" RESTS ON THE COLLEGE TO DEMONSTRATE
THE APPROPRIATENESS OF THAT ACTION.  SEE NEAR V. MINNESOTA, 283 U.S.
697, 713-716 (1931); ORGANIZATION FOR A BETTER AUSTIN V. KEEFE, 402
U.S. 415, 418 (1971); FREEDMAN V. MARYLAND, 380 U.S. 51, 57 (1965). 

        III 

THESE FUNDAMENTAL ERRORS-- DISCOUNTING THE EXISTENCE OF A COGNIZABLE
FIRST AMENDMENT INTEREST AND MISPLACING THE BURDEN OF PROOF-- REQUIRE
THAT THE JUDGMENTS BELOW BE REVERSED.  BUT WE ARE UNABLE TO CONCLUDE
THAT NO BASIS EXISTS UPON WHICH NONRECOGNITION MIGHT BE APPROPRIATE. 
INDEED, BASED ON A REASONABLE READING OF THE AMBIGUOUS FACTS OF THIS
CASE, THERE APPEARS TO BE AT LEAST ONE POTENTIALLY ACCEPTABLE GROUND
FOR A DENIAL OF RECOGNITION.  BECAUSE OF THIS AMBIGUOUS STATE OF THE
RECORD WE CONCLUDE THAT THE CASE SHOULD BE REMANDED, AND, IN AN EFFORT
TO PROVIDE GUIDANCE TO THE LOWER COURTS UPON RECONSIDERATION, IT IS
APPROPRIATE TO DISCUSS THE SEVERAL BASES OF PRESIDENT JAMES' DECISION. 
FOUR POSSIBLE JUSTIFICATIONS FOR NONRECOGNITION, ALL CLOSELY RELATED,
MIGHT BE DERIVED FROM THE RECORD AND HIS STATEMENTS.  THREE OF THOSE
GROUNDS ARE INADEQUATE TO SUBSTANTIATE HIS DECISION:  A FOURTH,
HOWEVER, HAS MERIT. 

        A 

FROM THE OUTSET THE CONTROVERSY IN THIS CASE HAS CENTERED IN LARGE
MEASURE AROUND THE RELATIONSHIP, IF ANY, BETWEEN PETITIONERS' GROUP AND
THE NATIONAL SDS.  THE STUDENT AFFAIRS COMMITTEE MEETINGS, AS REFLECTED
IN ITS MINUTES, FOCUSED CONSIDERABLE ATTENTION ON THIS ISSUE; THE COURT
ORDERED HEARING ALSO WAS DIRECTED PRIMARILY TO THIS QUESTION.  DESPITE
ASSURANCES FROM PETITIONERS AND THEIR COUNSEL THAT THE LOCAL GROUP WAS
IN FACT INDEPENDENT OF THE NATIONAL ORGANIZATION, IT IS EVIDENT THAT
PRESIDENT JAMES WAS SIGNIFICANTLY INFLUENCED BY HIS APPREHENSION THAT
THERE WAS A CONNECTION.  AWARE OF THE FACT THAT SOME SDS CHAPTERS HAD
BEEN ASSOCIATED WITH DISRUPTIVE AND VIOLENT CAMPUS ACTIVITY, HE
APPARENTLY CONSIDERED THAT AFFILIATION ITSELF WAS SUFFICIENT
JUSTIFICATION FOR DENYING RECOGNITION.  /12/ 

ALTHOUGH THIS PRECISE ISSUE HAS NOT COME BEFORE THE COURT
HERETOFORE, THE COURT HAS CONSISTENTLY DISAPPROVED GOVERNMENTAL ACTION
IMPOSING CRIMINAL SANCTIONS OR DENYING RIGHTS AND PRIVILEGES SOLELY
BECAUSE OF A CITIZEN'S ASSOCIATION WITH AN UNPOPULAR ORGANIZATION. 
SEE, E.G., UNITED STATES V. ROBEL, 389 U.S. 258 (1967); KEYISHIAN V.
BOARD OF REGENTS, 385 U.S.,AT 605-610; ELFBRANDT V. RUSSELL, 384 U.S.
11 (1966); SCALES V. UNITED STATES, 367 U.S. 203 (1961).  IN THESE
CASES IT HAS BEEN ESTABLISHED THAT "GUILT BY ASSOCIATION ALONE, WITHOUT
(ESTABLISHING) THAT AN INDIVIDUAL'S ASSOCIATION POSES THE THREAT FEARED
BY THE GOVERNMENT," IS AN IMPERMISSIBLE BASIS UPON WHICH TO DENY FIRST
AMENDMENT RIGHTS.  UNITED STATES V. ROBEL, SUPRA, AT 265.  THE
GOVERNMENT HAS THE BURDEN OF ESTABLISHING A KNOWING AFFILIATION WITH AN
ORGANIZATION POSSESSING UNLAWFUL AIMS AND GOALS, AND A SPECIFIC INTENT
TO FURTHER THOSE ILLEGAL AIMS.  /13/ 

STUDENTS FOR A DEMOCRATIC SOCIETY, AS CONCEDED BY THE COLLEGE AND
THE LOWER COURTS, IS LOOSELY ORGANIZED, HAVING VARIOUS FACTIONS AND
PROMOTING A NUMBER OF DIVERSE SOCIAL AND POLITICAL VIEWS, ONLY SOME OF
WHICH CALL FOR UNLAWFUL ACTION.  /14/  NOT ONLY DID PETITIONERS
PROCLAIM THAT COMPLETE INDEPENDENCE FROM THIS ORGANIZATION, /15/  BUT
THEY ALSO INDICATED THAT THEY SHARED ONLY SOME OF THE BELIEFS ITS
LEADERS HAVE EXPRESSED.  /16/  ON THIS RECORD IT IS CLEAR THAT THE
RELATIONSHIP WAS NOT AN ADEQUATE GROUND FOR THE DENIAL OF RECOGNITION. 

     B 

HAVING CONCLUDED THAT PETITIONERS WERE AFFILIATED WITH, OR AT LEAST
RETAINED AN AFFINITY FOR, NATIONAL SDS, PRESIDENT JAMES ATTRIBUTED WHAT
HE BELIEVED TO BE THE PHILOSOPHY OF THAT ORGANIZATION TO THE LOCAL
GROUP.  HE CHARACTERIZED THE PETITIONING GROUP AS ADHERING TO "SOME OF
THE MAJOR TENETS OF THE NATIONAL ORGANIZATION," INCLUDING A PHILOSOPHY
OF VIOLENCE AND DISRUPTION.  /17/  UNDERSTANDABLY, HE FOUND THAT
PHILOSOPHY ABHORRENT.  IN AN ARTICLE SIGNED BY PRESIDENT JAMES IN AN
ALUMNI PERIODICAL, AND MADE A PART OF THE RECORD BELOW, HE ANNOUNCED
HIS UNWILLINGHNESS TO "SANCTION AN ORGANIZATION THAT OPENLY ADVOCATES
THE DESTRUCTION OF THE VERY IDEALS AND FREEDOMS UPON WHICH THE ACADEMIC
LIFE IS FOUNDED."  HE FURTHER EMPHASIZED THAT THE PETITIONERS'
"PHILOSOPHIES" WERE "COUNTER TO THE OFFICIAL POLICY OF THE COLLEGE." 

THE MERE DISAGREEMENT OF THE PRESIDENT WITH THE GROUP'S PHILOSOPHY
AFFORDS NO REASON TO DENY IT RECOGNITION.  AS REPUGNANT AS THESE VIEWS
MAY HAVE BEEN, ESPECIALLY TO ONE WITH PRESIDENT JAMES' RESPONSIBILITY,
THE MERE EXPRESSION OF THEM WOULD NOT JUSTIFY THE DENIAL OF FIRST
AMENDMENT RIGHTS.  WHETHER PETITIONERS DID IN FACT ADVOCATE A
PHILOSOPHY OF "DESTRUCTION" THUS BECOMES IMMATERIAL.  THE COLLEGE,
ACTING HERE AS THE INSTRUMENTALITY OF THE STATE, MAY NOT RESTRICT
SPEECH OR ASSOCIATION SIMPLY BECAUSE IT FINDS THE VIEWS EXPRESSED BY
ANY GROUP TO BE ABHORRENT.  AS MR. JUSTICE BLACK PUT IT MOST SIMPLY AND
CLEARLY: 

     "I DO NOT BELIEVE THAT IT CAN BE TOO OFTEN REPEATED THAT THE

  FREEDOMS OF SPEECH, PRESS, PETITION AND ASSEMBLY GUARANTEED BY

  THE FIRST AMENDMENT MUST BE ACCORDED TO THE IDEAS WE HATE OR

  SOONER OR LATER THEY WILL BE DENIED TO THE IDEAS WE CHERISH." 

  COMMUNIST PARTY V. SACB, 367 U.S. 1, 137 (DISSENTING OPINION)

  (1961). 

        C 

AS THE LITIGATION PROGRESSED IN THE DISTRICT COURT, A THIRD
RATIONALE FOR PRESIDENT JAMES' DECISION-- BEYOND THE QUESTIONS OF
AFFILIATION AND PHILOSOPHY-- BEGAN TO EMERGE.  HIS SECOND STATEMENT,
ISSUED AFTER THE COURT-ORDERED HEARING, INDICATES THAT HE BASED
REJECTION ON A CONCLUSION THAT THIS PARTICULAR GROUP WOULD BE A
"DISRUPTIVE INFLUENCE AT CCSC."  THIS LANGUAGE WAS UNDERSCORED IN THE
SECOND DISTRICT COURT OPINION.  IN FACT, THE COURT CONCLUDED THAT THE
PRESIDENT HAD DETERMINED THAT CCSC-SDS'"PROSPECTIVE CAMPUS ACTIVITIES
WERE LIKELY TO CAUSE A DISRUPTIVE INFLUENCE AT CCSC."  319 F.SUP.,AT
116. 

IF THIS REASON, DIRECTED AT THE ORGANIZATION'S ACTIVITIES RATHER
THAN ITS PHILOSOPHY, WERE FACTUALLY SUPPORTED BY THE RECORD, THIS
COURT'S PRIOR DECISIONS WOULD PROVIDE A BASIS FOR CONSIDERING THE
PROPRIETY OF NONRECOGNITION.  THE CRITICAL LINE HERETOFORE DRAWN FOR
DETERMINING THE PERMISSIBILITY OF REGULATION IS THE LINE BETWEEN MERE
ADVOCACY AND ADVOCACY "DIRECTED TO INCITING OR PRODUCING IMMINENT
LAWLESS ACTION AND . . . LIKELY TO INCITE OR PRODUCE SUCH ACTION." 
BRANDENBURG V. OHIO, 395 U.S. 444, 447 (1969) (UNANIMOUS PER CURIAM
OPINION).  SEE ALSO SCALES V. UNITED STATES, 367 U.S.,AT 230-232; NOTO
V. UNITED STATES, 367 U.S. 290, 298 (1961); YATES V. UNITED STATES, 354
U.S. 298 (1957).  IN THE CONTEXT OF THE "SPECIAL CHARACTERISTICS OF THE
SCHOOL ENVIRONMENT,"  /18/  THE POWER OF THE GOVERNMENT TO PROHIBIT
"LAWLESS ACTION" IS NOT LIMITED TO ACTS OF A CRIMINAL NATURE.  ALSO
PROHIBITABLE ARE ACTIONS WHICH "MATERIALLY AND SUBSTANTIALLY DISRUPT
THE WORK AND DISCIPLINE OF THE SCHOOL."  TINKER V  DES MOINES
INDEPENDENT SCHOOL DISTRICT, 393 U.S.,AT 513.  ASSOCIATIONAL ACTIVITIES
NEED NOT BE TOLERATED WHERE THEY INFRINGE REASONABLE CAMPUS RULES,
INTERRUPT CLASSES, OR SUBSTANTIALLY INTERFERE WITH THE OPPORTUNITY OF
OTHER STUDENTS TO OBTAIN AN EDUCATION.     THE "STUDENT BILL OF RIGHTS"
AT CCSC, UPON WHICH GREAT EMPHASIS WAS PLACED BY THE PRESIDENT, DRAWS
PRECISELY THIS DISTINCTION BETWEEN ADVOCACY AND ACTION.  IT PURPORTS TO
IMPOSE NO LIMITATIONS ON THE RIGHT OF COLLEGE STUDENT ORGANIZATIONS "TO
EXAMINE AND DISCUSS ALL QUESTIONS OF INTEREST TO THEM."  BUT IT ALSO
STATES THAT STUDENTS HAVE NO RIGHT (1) "TO DEPRIVE OTHERS OF THE
OPPORTUNITY TO SPEAK OR BE HEARD," (2) "TO INVADE THE PRIVACY OF
OTHERS," (3) "TO DAMAGE THE PROPERTY OF OTHERS," (4) "TO DISRUPT THE
REGULAR AND ESSENTIAL OPERATION OF THE COLLEGE," OR (5) "TO INTERFERE
WITH THE RIGHTS OF OTHERS."  /19/  THE LINE BETWEEN PERMISSIBLE SPEECH
AND IMPERMISSIBLE CONDUCT TRACKS THE CONSTITUTIONAL REQUIREMENT, AND IF
THERE WERE AN EVIDENTIAL BASIS TO SUPPORT THE CONCLUSION THAT CCSC-SDS
POSED A SUBSTANTIAL THREAT OF MATERIAL DISRUPTION IN VIOLATION OF THAT
COMMAND THE PRESIDENT'S DECISION SHOULD BE AFFIRMED.  /20/ 

THE RECORD, HOWEVER, OFFERS NO SUBSTANTIAL BASIS FOR THAT
CONCLUSION.  THE ONLY SUPPORT FOR THE VIEW EXPRESSED BY THE PRESIDENT,
OTHER THAN THE REPUTED AFFILIATION WITH NATIONAL SDS, IS TO BE FOUND IN
THE AMBIVALENT RESPONSES OFFERED BY THE GROUP'S REPRESENTATIVES AT THE
STUDENT AFFAIRS COMMITTEE HEARING, DURING WHICH THEY STATED THAT THEY
DID NOT KNOW WHETHER THEY MIGHT RESPOND TO "ISSUES OF VIOLENCE" IN THE
SAME MANNER THAT OTHER SDS CHAPTERS HAD ON OTHER CAMPUSES.  NOR WOULD
THEY STATE UNEQUIVOCALLY THAT THEY COULD NEVER "ENVISION . . .
INTERRUPTING A CLASS."  WHATEVER FORCE THESE STATEMENTS MIGHT BE
THOUGHT TO HAVE IS LARGELY DISSIPATED BY THE FOLLOWING EXCHANGE BETWEEN
PETITIONERS' COUNSEL AND THE DEAN OF STUDENT AFFAIRS DURING THE COURT
ORDERED HEARING: 

     COUNSEL:  " . . . I JUST READ THE DOCUMENT THAT YOU'RE
OFFERING

  (MINUTES FROM STUDENT AFFIARS COMMITTEE MEETING) AND I CAN'T SEE

  THAT THERE'S ANYTHING IN IT THAT INTIMATES THAT THESE STUDENTS

  CONTEMPLATE ANY ILLEGAL OR DISRUPTIVE PRACTICE." 

     DEAN:  "NO.  THERE'S NO QUESTION RAISED TO THAT, COUNSELOR . .
. . "  APP. 73-74.  DEAN JUDD'S REMARK REAFFIRMS, IN ACCORD WITH THE
FULL RECORD, THAT THERE WAS NO SUBSTANTIAL EVIDENCE THAT THESE
PARTICULAR INDIVIDUALS ACTING TOGETHER WOULD CONSTITUTE A DISRUPTIVE
FORCE ON CAMPUS.  THEREFORE, INSOFAR AS NONRECOGNITION FLOWED FROM SUCH
FEARS, IT CONSTITUTED LITTLE MORE THAN THE SORT OF "UNDIFFERENTIATED
FEAR OR APPREHENSION OF DISTURBANCE (WHICH) IS NOT ENOUGH TO OVERCOME
THE RIGHT TO FREEDOM OF EXPRESSION."  TINKER V. DES MOINES INDEPENDENT
SCHOOL DISTRICT, 393 U.S.,AT 508. 

        D 

THESE SAME REFERENCES IN THE RECORD TO THE GROUP'S EQUIVOCATION
REGARDING HOW IT MIGHT RESPOND TO "ISSUES OF VIOLENCE" AND WHETHER IT
COULD EVER "ENVISION . . . INTERRUPTING A CLASS," SUGGEST A FOURTH
POSSIBLE REASON WHY RECOGNITION MIGHT HAVE BEEN DENIED READ AS
ANNOUNCING PETITIONERS' UNWILLINGNESS TO BE BOUND BY REASONABLE SCHOOL
RULES GOVERNING CONDUCT.  THE COLLEGE'S STATEMENT OF RIGHTS, FREEDOMS,
AND RESPONSIBILITIES OF STUDENTS CONTAINS, AS WE HAVE SEEN, AN EXPLICIT
STATEMENT WITH RESPECT TO CAMPUS DISRUPTION.  THE REGULATION, CAREFULLY
DIFFERENTIATING BETWEEN ADVOCACY AND ACTION, IS A REASONABLE ONE, AND
PETITIONERS HAVE NOT QUESTIONED IT DIRECTLY.  /21/  YET THEIR
STATEMENTS RAISE CONSIDERABLE QUESTION WHETHER THEY INTEND TO ABIDE BY
THE PROHIBITIONS CONTAINED THEREIN.  /22/ 

AS WE HAVE ALREADY STATED IN PARTS B AND C, THE CRITICAL LINE FOR
FIRST AMENDMENT PURPOSES MUST BE DRAWN BETWEEN ADVOCACY, WHICH IS
ENTITLED TO FULL PROTECTION, AND ACTION, WHICH IS NOT.  PETITIONERS
MAY, IF THEY SO CHOOSE, PREACH THE PROPRIETY OF AMENDING OR EVEN DOING
AWAY WITH ANY OR ALL CAMPUS REGULATIONS.  THEY MAY NOT, HOWEVER,
UNDERTAKE TO FLOUT THESE RULES.  MR. JUSTICE BLACKMUN, AT THE TIME HE
WAS A CIRCUIT JUDGE ON THE EIGHTH CIRCUIT, STATED: 

"WE . . . HOLD THAT A COLLEGE HAS THE INHERENT POWER TO PROMULGATE
RULES AND REGULATIONS; THAT IT HAS THE INHERENT POWER PROPERLY TO
DISCIPLINE; THAT IT HAS POWER APPROPRIATELY TO PROTECT ITSELF AND ITS
PROPERTY; THAT IT MAY EXPECT THAT ITS STUDENTS ADHERE TO GENERALLY
ACCEPTED STANDARDS OF CONDUCT."  ESTEBAN V. CENTRAL MISSOURI STATE
COLLEGE, 415 F.2D 1077, 1089 (CA8 1969), CERT. DENIED, 398 U.S. 965
(1970).  JUST AS IN THE COMMUNITY AT LARGE, REASONABLE REGULATIONS WITH
RESPECT TO THE TIME, THE PLACE, AND THE MANNER IN WHICH STUDENT GROUPS
CONDUCT THEIR SPEECH-RELATED ACTIVITIES MUST BE RESPECTED.  /23/  A
COLLEGE ADMINISTRATION MAY IMPOSE A REQUIREMENT, SUCH AS MAY HAVE BEEN
IMPOSED IN THIS CASE, THAT A GROUP SEEKING OFFICIAL RECOGNITION AFFIRM
IN ADVANCE ITS WILLINGNESS TO ADHERE TO REASONABLE CAMPUS LAW.  SUCH A
REQUIREMENT DOES NOT IMPOSE AN IMPERMISSIBLE CONDITION ON THE STUDENTS'
ASSOCIATIONAL RIGHTS.  THEIR FREEDOM TO SPEAK OUT, TO ASSEMBLE, OR TO
PETITION FOR CHANGES IN SCHOOL RULES IS IN NO SENSE INFRINGED.  IT
MERELY CONSTITUTES AN AGREEMENT TO CONFORM WITH REASONABLE STANDARDS
RESPECTING CONDUCT.  THIS IS A MINIMAL REQUIREMENT, IN THE INTEREST OF
THE ENTIRE ACADEMIC COMMUNITY, OF ANY GROUP SEEKING THE PRIVILEGE OF
OFFICIAL RECOGNITION. 

PETITIONERS HAVE NOT CHALLENGED IN THIS LITIGATION THE PROCEDURAL OR
SUBSTANTIVE ASPECTS OF THE COLLEGE'S REQUIREMENTS GOVERNING
APPLICATIONS FOR OFFICIAL RECOGNITION.  ALTHOUGH THE RECORD IS UNCLEAR
ON THIS POINT, CCSC MAY HAVE, AMONG ITS REQUIREMENTS FOR RECOGNITION, A
RULE THAT PROSPECTIVE GROUPS AFFIRM THAT THEY INTEND TO COMPLY WITH
REASONABLE CAMPUS REGULATIONS.  UPON REMAND IT SHOULD FIRST BE
DETERMINED WHETHER THE COLLEGE RECOGNITION PROCEDURES CONTEMPLATE ANY
SUCH REQUIREMENT.  IF SO, IT SHOULD THEN BE ASCERTAINED WHETHER
PETITIONERS INTEND TO COMPLY.  SINCE WE DO NOT HAVE THE TERMS OF A
SPECIFIC PRIOR AFFIRMATION RULE BEFORE US, WE ARE NOT CALLED ON TO
DECIDE WHETHER ANY PARTICULAR FORMULATION WOULD OR WOULD NOT PROVE
CONSTITUTIONALLY ACCEPTABLE.  ASSUMING THE EXISTENCE OF A VALID RULE,
HOWEVER, WE DO CONCLUDE THAT THE BENEFITS OF PARTICIPATION IN THE
INTERNAL LIFE OF THE COLLEGE COMMUNITY MAY BE DENIED TO ANY GROUP THAT
RESERVES THE RIGHT TO VIOLATE ANY VALID CAMPUS RULES WITH WHICH IT
DISAGREES.  /24/

        IV 

WE THINK THE ABOVE DISCUSSION ESTABLISHES THE APPROPRIATE FRAMEWORK
FOR CONSIDERATION OF PETITIONERS' REQUEST FOR CAMPUS RECOGNITION. 
BECAUSE RESPONDENTS FAILED TO ACCORD DUE RECOGNITION TO FIRST AMENDMENT
PRINCIPLES, THE JUDGMENTS BELOW APPROVING RESPONDENTS' DENIAL OF
RECOGNITION MUST BE REVERSED.  SINCE WE CANNOT CONCLUDE FROM THIS
RECORD THAT PETITIONERS WERE WILLING TO ABIDE BY REASONABLE CAMPUS
RULES AND REGULATIONS, WE ORDER THE CASE REMANDED FOR RECONSIDERATION. 
WE NOTE, IN SO HOLDING, THAT THE WIDE LATITUDE OFTEN HAS RESULTED, ON
THE CAMPUS AND ELSEWHERE, IN THE INFRINGEMENT OF THE RIGHTS OF OTHERS. 
THOUGH WE DEPLORE THE TENDENCY OF SOME TO ABUSE THE VERY CONSTITUTIONAL
PRIVILEGES THEY INVOKE, AND ALTHOUGH THE INFRINGEMENT OF RIGHTS OF
OTHERS CERTAINLY SHOULD NOT BE TOLERATED, WE REAFFIRM THIS COURT'S
DEDICATION TO THE PRINCIPLES OF THE BILL OF RIGHTS UPON WHICH OUR
VIGOROUS AND FREE SOCIETY IS FOUNDED. 

 REVERSED AND REMANDED. 

/1/  SEE REPORT OF THE PRESIDENT'S COMMISSION ON CAMPUS UNREST
(1970); REPORT OF THE AMERICAN BAR ASSOCIATION COMMISSION ON CAMPUS
GOVERNMENT AND STUDENT DISSENT (1970). 

/2/  THE STATEMENT OF PURPOSE IS SET OUT AS AN APPENDIX TO THE
SECOND CIRCUIT'S OPINION AND APPEARS FOLLOWING THE DISSENT THERETO. 
445 F.2D 1122, 1135-1139 (1971). 

/3/  445 F.2D, AT 1133.  DURING THE COMMITTEE'S CONSIDERATION OF
PETITIONERS' APPLICATION, ONE OF THE GROUP'S REPRESENTATIVES WAS ASKED
WHY, IF IT INDEED DESIRED TO REMAIN INDEPENDENT, IT CHOSE TO USE A
NATIONALLY KNOWN NAME.  THE WITNESS' RESPONSE WAS THAT "THE NAME BRINGS
TO MIND THE TYPE OF ORGANIZATION WE WISH TO BRING ACROSS, THAT IS, A
LEFT-WING ORGANIZATION WHICH WILL ALLOW STUDENTS INTERESTED IN SUCH TO
EXPRESS THEMSELVES." 

/4/  THE PRESIDENT STATED: 

"THOUGH I HAVE FULL APPRECIATION FOR THE ACTION OF THE STUDENT
AFFAIRS COMMITTEE AND THE REASONS STATED IN THEIR MINUTES FOR THE
MAJORITY VOTE RECOMMENDING APPROVAL OF A LOCAL CHAPTER OF STUDENTS FOR
A DEMOCRATIC SOCIETY, IT IS MY JUDGMENT THAT THE STATEMENT OF PURPOSE
TO FORM A LOCAL CHAPTER OF STUDENTS FOR A DEMOCRATIC SOCIETY CARRIES
FULL AND UNMISTAKABLE ADHERENCE TO AT LEAST SOME OF THE MAJOR TENETS OF
THE NATIONAL ORGANIZATION, LOOSE AND DIVIDED THOUGH THAT ORGANIZATION
MAY BE.  THE PUBLISHED AIMS AND PHILOSOPHY OF THE STUDENTS FOR A
DEMOCRATIC SOCIETY, WHICH INCLUDE DISRUPTION AND VIOLENCE, ARE CONTRARY
TO THE APPROVED POLICY (BY FACULTY, STUDENTS, AND ADMINISTRATION) OF
CENTRAL CONNECTICUT STATE COLLEGE WHICH STATES: 

"'STUDENTS DO NOT HAVE THE RIGHT TO INVADE THE PRIVACY OF OTHERS, TO
DAMAGE THE PROPERTY OF OTHERS, TO DISRUPT THE REGULAR AND ESSENTIAL
OPERATION OF THE COLLEGE, OR TO INTERFERE WITH THE RIGHTS OF OTHERS.' 

"THE FURTHER STATEMENT ON THE REQUEST FOR RECOGNITION THAT 'CCSC
STUDENTS FOR A DEMOCRATIC SOCIETY ARE NOT UNDER THE DICTATES OF ANY
NATIONAL ORGANIZATION' IN NO WAY CLARIFIES WHY IF A GROUP INTENDS TO
FOLLOW THE ESTABLISHED POLICY OF COLLEGE, THEY WISH TO BECOME A LOCAL
CHAPTER OF AN ORGANIZATION WHICH OPENLY REPUDIATES SUCH A POLICY. 

"FREEDOM OF SPEECH, ACADEMIC FREEDOM ON THE CAMPUS, THE FREEDOM OF
ESTABLISHING AN OPEN FORUM FOR THE EXCHANGE OF IDEAS, THE FREEDOMS
OUTLINED IN THE STATEMENT ON RIGHTS, FREEDOMS, AND RESPONSIBILITIES OF
STUDENTS THAT 'COLLEGE STUDENTS AND STUDENT ORGANIZATIONS SHALL HAVE
THE RIGHT TO EXAMINE AND DISCUSS ALL QUESTIONS OF INTEREST TO THEM, TO
EXPRESS OPINION PUBLICLY AND PRIVATELY, AND TO SUPPORT CAUSES BY
ORDERLY MEANS.  THEY MAY ORGANIZE PUBLIC DEMONSTRATIONS AND PROTEST
GATHERINGS AND UTILIZE THE RIGHT OF PETITION'-- THESE ARE ALL PRECIOUS
FREEDOMS THAT WE CHERISH AND ARE FREEDOMS ON WHICH WE STAND.  TO
APPROVE ANY ORGANIZATION OR INDIVIDUAL WHO JOINS WITH AN ORGANIZATION
WHICH OPENLY REPUDIATES THOSE PRINCIPLES IS CONTRARY TO THOSE FREEDOMS
AND TO THE APPROVED 'STATEMENT ON THE RIGHTS, FREEDOMS, AND
RESPONSIBILITIES OF STUDENTS' AT CENTRAL."  APP. 15-16. 

/5/  IN 1969, CCSC ADOPTED, AS HAVE MANY OTHER COLLEGES AND
UNIVERSITIES, A STATEMENT ON RIGHTS, FREEDOMS AND RESPONSIBILITIES OF
STUDENTS.  THIS STATEMENT, COMMONLY REFERRED TO AS THE "STUDENT BILL OF
RIGHTS," IS PRINTED AS AN APPENDIX TO THE SECOND CIRCUIT'S MAJORITY
OPINION IN THIS CASE, 445 F.2D, AT 1135-1139, SEE N. 2, SUPRA.  PART V
OF THAT STATEMENT ESTABLISHES THE STANDARDS FOR APPROVAL OF CAMPUS
ORGANIZATIONS AND IMPOSES SEVERAL BASIC LIMITATIONS ON THEIR CAMPUS
ACTIVITIES: 

"A.  CARE SHALL BE TAKEN IN THE ESTABLISHMENT AND ORGANIZATION OF
CAMPUS GROUPS SO THAT THE BASIC RIGHTS, FREEDOMS AND RESPONSIBILITIES
OF STUDENTS WILL BE PRESERVED. 

"B.  STUDENT ORGANIZATIONS SHALL SUBMIT A CLEAR STATEMENT OF
PURPOSE, CRITERIA FOR MEMBERSHIP, RULES OF PROCEDURES AND A LIST OF
OFFICERS AS A CONDITION OF INSTITUTIONAL RECOGNITION. 

"C.  MEMBERSHIP IN CAMPUS ORGANIZATIONS SHALL BE LIMITED TO
MATRICULATED STUDENTS (DAY OR EVENING) AT THE COLLEGE.  MEMBERSHIP
SHALL NOT BE RESTRICTED BY RACE, RELIGION OR NATIONALITY.  THE MEMBERS
SHALL HAVE SOLE POWER TO DETERMINE ORGANIZATION POLICY CONSISTENT WITH
THE REGULATIONS OF THE COLLEGE. 

"D.  EACH ORGANIZATION IS FREE TO CHOOSE ITS OWN ADVISER.  ADVISERS
TO ORGANIZATIONS SHALL ADVISE BUT NOT CONTROL THE ORGANIZATIONS AND
THEIR POLICIES. 

"E.  COLLEGE STUDENTS AND STUDENT ORGANIZATIONS SHALL HAVE THE RIGHT
TO EXAMINE AND DISCUSS ALL QUESTIONS OF INTEREST TO THEM, TO EXPRESS
OPINION PUBLICLY AND PRIVATELY, AND TO SUPPORT CAUSES BY ORDERLY
MEANS.  THEY MAY ORGANIZE PUBLIC DEMONSTRATIONS AND PROTEST GATHERINGS
AND UTILIZE THE RIGHT OF PETITION.  STUDENTS DO NOT HAVE THE RIGHT TO
DEPRIVE OTHERS OF THE OPPORTUNITY TO SPEAK OR BE HEARD, TO INVADE THE
PRIVACY OF OTHERS, TO DAMAGE THE PROPERTY OF OTHERS, TO DISRUPT THE
REGULAR AND ESSENTIAL OPERATION OF THE COLLEGE, OR TO INTERFERE WITH
THE RIGHTS OF OTHERS." 

/6/  DURING THE MEETING PETITIONERS WERE APPROACHED BY TWO OF THE
COLLEGE'S DEANS, WHO SERVED PETITIONERS WITH A MEMORANDUM FROM THE
PRESIDENT STATING: 

"NOTICE HAS BEEN RECEIVED BY THIS OFFICE OF A MEETING OF THE
'C.C.S.C.-S.D.S. ON THURSDAY-- NOVEMBER 6 AT 7:00 P.M. AT THE DEVILS'
DEN.' 

"SUCH MEETING MAY NOT TAKE PLACE IN THE DEVILS' DEN OF THE STUDENT
CENTER NOR IN OR ON ANY OTHER PROPERTY OF THE COLLEGE SINCE THE
C.C.S.C.-S.D.S. IS NOT A DULY RECOGNIZED COLLEGE ORGANIZATION. 

"YOU ARE HEREBY NOTIFIED BY THIS ACTION TO CEASE AND DESIST FROM
MEETING ON COLLEGE PROPERTY." 

/7/  319 F.SUPP.  113, 114 (1970).  THE HEARING OFFICER, OVER
PETITIONERS' OBJECTION, RULED THAT THE STATEMENT WAS INADMISSIBLE,
APPARENTLY ON THE GROUND THAT IT WOULD CONSTITUTE AN AMENDMENT TO THE
ORIGINAL APPLICATION AND WOULD BE BEYOND THE PERMISSIBLE SCOPE OF THE
HEARING.  WHATEVER THE MERITS OF THIS RULING, THE STATEMENT WAS IN THE
RECORD REVIEWED BY THE PRESIDENT AND WAS RELIED ON IN THE SUBSEQUENT
DISTRICT COURT OPINION WITHOUT REFERENCE TO ITS PRIOR EXCLUSION. 
IBID. 

/8/  IT IS UNCLEAR ON THIS RECORD WHETHER RECOGNITION ALSO CARRIES
WITH IT A RIGHT TO SEEK FUNDS FROM THE SCHOOL BUDGET.  PETITIONERS'
COUNSEL AT ORAL ARGUMENT INDICATED THAT OFFICIAL RECOGNITION ENTITLED
THE GROUP TO "MAKE APPLICATION FOR USE OF STUDENT FUNDS."  TR. OF ORAL
ARG. 4.  THE FIRST DISTRICT COURT OPINION, HOWEVER, STATES FLATLY THAT
"(RECOGNITION DOES NOT THEREBY ENTITLE AN ORGANIZATION TO COLLEGE
FINANCIAL SUPPORT."  311 F.SUPP.  1275, 1277.  SINCE IT APPEARS THAT,
AT THE LEAST, RECOGNITION ONLY ENTITLES A GROUP TO APPLY FOR FUNDS, AND
SINCE THE RECORD IS SILENT AS TO THE CRITERIA USED IN ALLOCATING SUCH
FUNDS, WE DO NOT CONSIDER POSSIBLE FUNDING AS AN ASSOCIATIONAL ASPECT
OF NONRECOGNITION IN THIS CASE.     /9/  THESE STATEMENTS ARE IN
CONTRAST TO THE FIRST OPINION BY THE DISTRICT COURT, WHICH REFLECTED A
FULL APPRECIATION OF THE CONSTITUTIONAL SIGNIFICANCE OF PETITIONERS'
CLAIM.  311 F.SUPP.,AT 1280-1282. 

/10/  445 F.2D, AT 1131; 319 F.SUPP.,AT 116. 

/11/  THE STANDARDS FOR OFFICIAL RECOGNITION REQUIRE APPLICANTS TO
PROVIDE A CLEAR STATEMENT OF PURPOSES, CRITERIA FOR MEMBERSHIP, RULES
OF PROCEDURE, AND A LIST OF OFFICERS.  APPLICANTS MUST LIMIT MEMBERSHIP
TO "MATRICULATED STUDENTS" AND MAY NOT DISCRIMINATE ON THE BASIS OF
RACE, RELIGION OR NATIONALITY.  THE STANDARDS FURTHER STATE THAT GROUPS
MAY "EXAMINE AND DISCUSS ALL QUESTIONS OF INTEREST," AND THEY MAY
CONDUCT DEMONSTRATIONS AND UTILIZE THEIR RIGHT OF PETITION, BUT THEY
ARE PROHIBITED FROM INTERFERING WITH THE RIGHTS OF OTHER STUDENTS.  SEE
N. 5, SUPRA.  PETITIONERS HAVE NOT CHALLENGED THESE STANDARDS AND THEIR
VALIDITY IS NOT HERE IN QUESTION. 

/12/  SEE N. 4, SUPRA, FOR THE COMPLETE TEXT OF THE PRESIDENT'S
STATEMENT. 

/13/  IN ADDITION TO THE CASES CITED IN THE TEXT ABOVE, SEE ALSO LAW
STUDENTS CIVIL RIGHTS RESEARCH COUNCIL V. WADMOND, 401 U.S. 154, 164
166 (1971); IN RE STOLAR, 401 U.S. 23, 28 (1971); APTHEKER V. SECRETARY
OF STATE, 378 U.S. 500 (1964); NOTO V. UNITED STATES, 367 U.S. 290, 299
300 (1961). 

/14/  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
APPROPRIATIONS, 92D CONG., 2D SESS., PT. 1, P. 916 (1972), IN WHICH THE
FORMER DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, J. EDGAR
HOOVER, STATED THAT WHILE VIOLENT FACTIONS HAVE SPUN OFF FROM SDS, ITS
PRESENT LEADERSHIP IS "CRITICAL OF BOMBING AND VIOLENCE." 

/15/  PETITIONERS ASSERTED THEIR INDEPENDENCE BOTH ORALLY AND IN A
WRITTEN SUBMISSION BEFORE THE STUDENT AFFAIRS COMMITTEE.  THEY RESTATED
THEIR NONAFFILIATION IN A FORMAL STATEMENT FILED PRIOR TO THE COURT
ORDERED HEARING.  THE ONLY INDICATION TO THE CONTRARY IS THEIR
UNWILLINGNESS TO ESCHEW USE OF THE SDS NAME ALTOGETHER.  BUT SEE N. 3,
SUPRA. 

/16/  REPRESENTATIVES OF THE GROUP STATED DURING THE STUDENT AFFAIRS
COMMITTEE MEETINGS THAT THEY DID NOT IDENTIFY WITH ALL OF THE
NATIONAL'S STATEMENTS, BUT WISHED SIMPLY TO "PICK . . . CERTAIN IDEAS"
FROM THAT ORGANIZATION. 

/17/  SEE N. 4, SUPRA. 

/18/  TINKER V. DES MOINES INDEPENDENT SCHOOL DISTRICT, 393 U.S.
503, 506 (1969). 

/19/  SEE N. 5, SUPRA. 

/20/  IT MAY NOT BE SUFFICIENT MERELY TO SHOW THE EXISTENCE OF A
LEGITIMATE AND SUBSTANTIAL STATE INTEREST.  WHERE STATE ACTION DESIGNED
TO REGULATE PROHIBITABLE ACTION ALSO RESTRICTS ASSOCIATIONAL RIGHTS--
AS NONRECOGNITION DOES-- THE STATE MUST DEMONSTRATE THAT THE ACTION
TAKEN IS REASONABLY RELATED TO PROTECTION OF THE STATE'S INTEREST AND
THAT "THE INCIDENTAL RESTRICTION ON ALLEGED FIRST AMENDMENT FREEDOMS IS
NO GREATER THAN IS ESSENTIAL TO THE FURTHERANCE OF THAT INTEREST." 
UNITED STATES V. O'BRIEN, 391 U.S. 367, 377 (1968).  SEE ALSO NAACP V.
ALABAMA EX REL. FLOWERS, 377 U.S. 288 (1964); GIBSON V. FLORIDA
LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S. 539, 546 (1963); NAACP V.
ALABAMA EX REL. PATTERSON, 357 U.S. 449 (1958).  ON THIS RECORD, ABSENT
A SHOWING OF ANY LIKELIHOOD OF DISRUPTION OR UNWILLINGNESS TO RECOGNIZE
REASONABLE RULES GOVERNING CAMPUS CONDUCT, IT IS NOT NECESSARY FOR US
TO DECIDE WHETHER DENIAL OF RECOGNITION IS AN APPROPRIATELY RELATED AND
NARROW RESPONSE. 

/21/  SEE N. 5, SUPRA. 

/22/  THE COURT OF APPEALS FOUND THAT PETITIONERS "FAILED CANDIDLY
TO RESPOND TO INQUIRIES WHETHER THEY WOULD RESORT TO VIOLENCE AND
DISRUPTION ON THE CCSC CAMPUS, INCLUDING INTERRUPTION OF CLASSES."  445
F.2D, AT 1131.  WHILE PETITIONERS' STATEMENTS MAY BE READ AS INTIMATING
A REJECTION OF REASONABLE REGULATIONS IN ADVANCE, THERE IS IN FACT
SUBSTANTIAL AMBIGUITY ON THIS POINT.  THE QUESTIONS ASKED BY MEMBERS OF
THE STUDENT AFFAIRS COMMITTEE DO NOT APPEAR TO HAVE BEEN PROPOUNDED
WITH ANY CLEAR DISTINCTION IN MIND BETWEEN THAT WHICH THE PETITIONERS
MIGHT ADVOCATE AND THE CONDUCT IN WHICH THEY MIGHT ENGAGE.  NOR DID THE
STUDENT AFFAIRS COMMITTEE ATTEMPT TO OBTAIN A CLARIFICATION OF THE
PETITIONERS' AMBIGUOUS ANSWERS BY ASKING SPECIFICALLY WHETHER THE GROUP
WAS WILLING TO ABIDE BY THE STUDENT BILL OF RIGHTS GOVERNING ALL CAMPUS
ORGANIZATIONS. 

MOREOVER, THIS QUESTION WAS NOT AMONG THOSE REFERRED BY THE DISTRICT
COURT TO THE ADMINISTRATIVE HEARING, AND IT WAS THERE ADDRESSED ONLY
TANGENTIALLY.  THE GROUP MEMBERS WHO HAD MADE STATEMENTS BEFORE THE
STUDENT AFFAIRS COMMITTEE DID NOT TESTIFY, AND THEIR POSITION WAS NOT
CLARIFIED.  THEIR COUNSEL, WHOSE TACTICS WERE CHARACTERIZED AS
"DISRUPTIVE" BY THE COURT OF APPEALS, ELECTED TO MAKE ARGUMENTATIVE
STATEMENTS RATHER THAN ELICIT RELEVANT TESTIMONY.  ID., AT 1126. 
INDEED, THE DISTRICT COURT'S FAILURE TO IDENTIFY THE QUESTION OF
WILLINGNESS TO ABIDE BY THE COLLEGE'S RULES AND REGULATIONS AS A
SIGNIFICANT SUBJECT OF INQUIRY, COUPLED WITH THE EQUIVOCATION ON THE
PART OF THE GROUP'S REPRESENTATIVES, LENDS SUPPORT TO OUR VIEW THAT A
REMAND IS NECESSARY. 

/23/  SEE, E.G., ADDERLEY V. FLORIDA, 385 U.S. 39, 47-48 (1966); COX
V. LOUISIANA, 379 U.S. 536, 558 (1965); LOUISIANA EX REL. GREMILLION V.
NAACP, 366 U.S. 293, 297 (1961). 

/24/  IN ADDITION TO THE COLLEGE ADMINISTRATION'S BROAD RULEMAKING
POWER TO ASSURE THAT THE TRADITIONAL ACADEMIC ATMOSPHERE IS
SAFEGUARDED, IT MAY ALSO IMPOSE SANCTIONS ON THOSE WHO VIOLATE THE
RULES.  WE FIND, FOR INSTANCE, THAT THE STUDENT AFFAIRS COMMITTEE'S
ADMONITION TO PETITIONERS IN THIS CASE SUGGESTS ONE PERMISSIBLE
PRACTICE-- RECOGNITION, ONCE ACCORDED, MAY BE WITHDRAWN OR SUSPENDED IF
PETITIONERS FAIL TO RESPECT CAMPUS LAW.  SEE, E.G., UNIVERSITY OF
SOUTHERN MISSISSIPPI CHAPTER OF MISSISSIPPI CIVIL LIBERTIES UNION V.
UNIVERSITY OF SOUTHERN MISSISSIPPI, 452 F.2D 564 (CA5 1971); AMERICAN
CIVIL LIBERTIES UNION V. RADFORD COLLEGE, 315 F.SUPP.  893 (WD VA.
1970). 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I AM IN AGREEMENT WITH WHAT IS SAID IN THE COURT'S OPINION AND I
JOIN IN IT.  I DO SO BECAUSE I READ THE BASIS OF THE REMAND AS
RECOGNIZING THAT STUDENT ORGANIZATIONS SEEKING THE PRIVILEGE OF
OFFICIAL CAMPUS RECOGNITION MUST BE WILLING TO ABIDE BY VALID RULES OF
THE INSTITUTION APPLICABLE TO ALL SUCH ORGANIZATIONS.  THIS IS A
REASONABLE CONDITION INSOFAR AS IT CALLS FOR THE DISAVOWAL OF RESORT TO
FORCE, DISRUPTION, AND INTERFERENCE WITH THE RIGHTS OF OTHERS. 

THE DISTRICT JUDGE WAS TROUBLED BY THE LACK OF A COMPREHENSIVE
PROCEDURAL SCHEME THAT WOULD INFORM STUDENTS OF THE STEPS TO BE TAKEN
TO SECURE RECOGNIZED STANDING, AND BY THE LACK OF ARTICULATED CRITERIA
TO BE USED IN EVALUATING ELIGIBILITY FOR RECOGNITION.  IT WAS FOR THIS
REASON, AS I READ THE RECORD, THAT HE REMANDED THE MATTER TO THE
COLLEGE FOR A FACTUAL INQUIRY AND FOR A MORE ORDERLY PROCESSING IN A DE
NOVO HEARING WITHIN THE COLLEGE ADMINISTRATIVE STRUCTURE.  IT IS WITHIN
THAT STRUCTURE AND WITHIN THE ACADEMIC COMMUNITY THAT PROBLEMS SUCH AS
THESE SHOULD BE RESOLVED.  THE COURTS, STATE OR FEDERAL, SHOULD BE A
LAST RESORT.  PART OF THE EDUCATIONAL EXPERIENCE OF EVERY COLLEGE
STUDENT SHOULD BE AN EXPERIENCE IN RESPONSIBLE SELF-GOVERNMENT AND THIS
MUST BE A JOINT INTERPRISE OF STUDENTS AND FACULTY.  IT SHOULD NOT BE
IMPOSED UNILATERALLY FROM ABOVE, NOR CAN THE TERMS OF THE RELATIONSHIP
BE DICTATED BY STUDENTS.  HERE, IN SPITE OF THE WISDOM OF THE DISTRICT
COURT IN SENDING THE CASE BACK TO THE COLLEGE, THE ISSUE IDENTIFIED BY
THE COURT'S OPINION TODAY WAS NOT ADEQUATELY ADDRESSED IN THE HEARING. 

THE RELATIVELY PLACID LIFE OF THE COLLEGE CAMPUS OF THE PAST HAS NOT
PREPARED EITHER ADMINISTRATORS OR STUDENTS FOR THEIR RESPECTIVE
RESPONSIBILITIES IN MAINTAINING AN ATMOSPHERE IN WHICH DIVERGENT VIEWS
CAN BE ASSERTED VIGOROUSLY, BUT CIVILLY, TO THE END THAT THOSE WHO SEEK
TO BE HEARD ACCORD THE SAME RIGHT TO ALL OTHERS.  THE "STATEMENT ON
RIGHTS, FREEDOMS AND RESPONSIBILITIES OF STUDENTS,"  SOMETIMES CALLED
THE "STUDENT BILL OF RIGHTS," IN EFFECT ON THIS CAMPUS, AND NOT
QUESTIONED BY PETITIONERS, REFLECTED A RATIONAL ADJUSTMENT OF THE
COMPETING INTERESTS.  BUT IT IS IMPOSSIBLE TO KNOW FROM THE RECORD IN
THIS CASE WHETHER THE STUDENT GROUP WAS WILLING TO ACKNOWLEDGE AN
OBLIGATION TO ABIDE BY THAT "BILL OF RIGHTS." 

AGAINST THIS BACKGROUND, THE ACTION OF THE COURT IN REMANDING ON
THIS ISSUE IS APPROPRIATE. 

MR. JUSTICE DOUGLAS. 

WHILE I JOIN THE OPINION OF THE COURT, I ADD A FEW WORDS. 

AS DR. BIRENBAUM /1/  SAYS, THE STATUS QUO OF THE COLLEGE OR
UNIVERSITY IS THE GOVERNING BODY (TRUSTEES OR OVERSEERS),
ADMINISTRATIVE OFFICERS, WHO INCLUDE CARETAKERS, AND THE POLICE, AND
THE FACULTY.  THOSE GROUPS HAVE WELL-DEFINED OR VAGUELY INFERRED VALUES
TO PERPETUATE.  THE CUSTOMARY TECHNIQUE HAS BEEN TO CONCEIVE OF THE
MINDS OF STUDENTS AS RECEPTACLES FOR THE INFORMATION WHICH THE FACULTY
HAVE GARNERED OVER THE YEARS.  EDUCATION IS COMMONLY THOUGHT OF AS THE
PROCESS OF FILLING THE RECEPTACLES WITH WHAT THE FACULTY IN ITS WISDOM
DEEMS FIT AND PROPER. 

MANY, INSIDE AND OUT OF FACULTY CIRCLES, REALIZE THAT ONE OF THE
MAIN PROBLEMS OF FACULTY MEMBERS IS THEIR OWN RE-EDUCATION OR RE
ORIENTATION.  SOME HAVE NARROW SPECIALTIES THAT ARE HARDLY RELEVANT TO
MODERN TIMES.  HISTORY HAS PASSED OTHERS BY, LEAVING THEM INTERESTING
RELICS OF A BYGONE DAY.  MORE OFTEN THAN NOT THEY REPRESENT THOSE WHO
WITHERED UNDER THE PRESSURES OF MCCARTHYISM OR OTHER FORCES OF
CONFORMITY AND REPRESENT BUT A TIMID REPLICA OF THOSE WHO ONCE BROUGHT
DISTINCTION TO THE IDEAL OF ACADEMIC FREEDOM. 

THE CONFRONTATION BETWEEN THEM AND THE ONCOMING STUDENTS HAS OFTEN
BEEN UPSETTING.  THE PROBLEM IS NOT ONE OF CHOOSING SIDES.  STUDENTS--
WHO, BY REASON OF THE TWENTY-SIXTH AMENDMENT, BECOME ELIGIBLE TO VOTE
WHEN 18 YEARS OF AGE-- ARE ADULTS WHO ARE MEMBERS OF THE COLLEGE OR
UNIVERSITY COMMUNITY.  THEIR INTERESTS AND CONCERNS ARE OFTEN QUITE
DIFFERENT FROM THOSE OF THE FACULTY.  THEY OFTEN HAVE VALUES, VIEWS,
AND IDEOLOGIES THAT ARE AT WAR WITH THE ONES WHICH THE COLLEGE HAS
TRADITIONALLY ESPOUSED OR INDOCTRINATED.  WHEN THEY ASK FOR CHANGE,
THEY, THE STUDENTS, SPEAK IN THE TRADITION OF JEFFERSON AND MADISON AND
THE FIRST AMENDMENT. 

THE FIRST AMENDMENT DOES NOT AUTHORIZE VIOLENCE.  BUT IT DOES
AUTHORIZE ADVOCACY, GROUP ACTIVITIES, AND ESPOUSAL OF CHANGE. 

THE PRESENT CASE IS MINUSCULE IN THE EVENTS OF THE 60'S AND 70'S.
BUT THE FACT THAT IT HAS TO COME HERE FOR ULTIMATE RESOLUTION INDICATES
THE SICKNESS OF OUR ACADEMIC WORLD, MEASURED BY FIRST AMENDMENT
STANDARDS.  STUDENTS AS WELL AS FACULTY ARE ENTITLED TO CREDENTIALS IN
THEIR SEARCH FOR TRUTH.  IF WE ARE TO BECOME AN INTEGRATED, ADULT
SOCIETY, RATHER THAN A STUBBORN STATUS QUO OPPOSED TO CHANGE, STUDENTS
AND FACULTIES SHOULD HAVE COMMUNAL INTERESTS IN WHICH EACH AGE LEARNS
FROM THE OTHER.  WITHOUT FERMENT OF ONE KIND OR ANOTHER, A COLLEGE OR
UNIVERSITY (LIKE A FEDERAL AGENCY OR OTHER HUMAN INSTITUTION) BECOMES A
USELESS APPENDAGE TO A SOCIETY WHICH TRADITIONALLY HAS REFLECTED THE
SPIRIT OF REBELLION. 

/1/  SEE THE APPENDIX TO THIS OPINION. 

        APPENDIX TO OPINION OF DOUGLAS, J. 

"A COMPULSORY GHETTO FAILS AS A COMMUNITY BECAUSE ITS INHABITANTS
LACK THE POWER TO DEVELOP COMMON GOALS AND TO PURSUE THEM EFFECTIVELY
TOGETHER.  IT FAILS TOO BECAUSE OF A FATAL DISCONNECTION BETWEEN THE
POSSESSION AND USE OF POWER AND THE COGNITION THAT KNOWLEDGE, AS A FORM
OF POWER, CARRIES WITH IT POLITICAL RESPONSIBILITY.  IN THESE RESPECTS
THE CAMPUS IS NOW LIKE THE COMPULSORY GHETTO. 

"THOSE WHO DEPLORE A VIEW OF THE UNIVERSITY IN TERMS OF ITS POWERFUL
POLITICAL ROLE IN AMERICAN SOCIETY MUST ACCOUNT FOR THE INSTITUTION'S
USE OF POLITICAL POWER IN ITS OWN TERMS, FOR ITS OWN PURPOSES.  I HAVE
COME TO FEEL LATELY-- PARTLY, I GUESS, BECAUSE OF THE LEGAL REASONING
STYLES TO WHICH I HAVE BEEN EXPOSED-- THAT THOSE PLAYING AROUND WITH
THE STRUCTURE OF THEIR UNIVERSITIES THESE DAYS ARE PLAYING WITH TINKER
TOYS.  NEW COMMITTEES, NEW SENATES AND NEW STUDENT-PARTICIPATION
FORMULAE DO NOT NECESSARILY MEAN THAT ANYTHING HAS CHANGED.  INDEED, IF
BERKELEY, COLUMBIA, HARVARD AND CHICAGO ARE VALID EXAMPLES,
RESTRUCTURING TURNS OUT TO BE ONE OF THE BRILLIANT NEW INVENTIONS FOR
SUSTAINING THE STATUS QUO.  THE VESTED INTERESTS AND ESSENTIAL
PRIVILEGES INVOLVED IN CURRENT EFFORTS TO RESTRUCTURE THE UNIVERSITY
HAVE YET COMPLETELY TO SURFACE.  A SUBSTANTIAL PART OF OUR MELTING
ICEBERG IS STILL BELOW THE WATERLINE. 

"THAT PART OF THE STUDENT CRITIQUE OF THE UNIVERSITY WHICH MOST
DESERVES OUR ATTENTION BEARS UPON WHAT WE TEACH, HOW WE TEACH IT, AND
THE TERMS ON WHICH IT IS TAUGHT.  ONE OF THE INTERESTING THINGS THEIR
CRITIQUE POINTS OUT IS THAT OUR BUILDING PROGRAMS, CORPORATE
INVESTMENTS, RELATIONSHIPS TO THE IMMEDIATE COMMUNITY AND TO THE
SOCIETY, AND OUR VIEWS OF CITIZENSHIP INSIDE THE UNIVERSITY, ALL TURN
OUT TO BE PROJECTIONS AND APPLICATIONS OF WHAT WE CALL OR HAVE CALLED
EDUCATION.  THEIR CRITIQUE SUGGESTS THE PERFECTLY ABSURD CONCLUSION
THAT THERE IS A RELATIONSHIP BETWEEN THEIR LONG HAIR AND OUR LONG WAR,
BETWEEN BEING A NURSE AND BEING A NEGRO, BETWEEN THE FRESHMAN POLITICAL
SCIENCE COURSE AND THE POLLUTION OF FRESH AIR, BETWEEN EDUCATION FOR
FREEDOM AND BEING FREE.  OBVIOUSLY, THE CONTEMPORARY AMERICAN STUDENT
ACTIVIST IS CRAZY. 

"WE HAVE PROBABLY MADE A MISTAKE BY REVEALING TO OUR STUDENTS THAT
THERE REALLY IS TOO MUCH TO KNOW, AND ONLY ONE WAY TO LEARN IT-- OUR
WAY.  THEY HAVE COME TO ACCEPT THIS AS GOSPEL, AND IT HAS ENCOURAGED
THEM TO VIEW CURRICULUM DEVELOPMENT AS ESSENTIALLY A SOPHISTICATED ART
OF SELECTION, INTERPRETATION AND EMPHASIS IN WHICH THEY HAVE A VESTED
INTEREST.  UNDERSTANDING THIS, NATURALLY THEY HAVE BEGUN TO ASK THE KEY
POLITICAL QUESTIONS BEARING UPON OUR VESTED INTERESTS AND PRIVILEGES:
WHAT EXPERIENCE AND TALENT SHOULD BE EMPOWERED TO SELECT?  WHO SHOULD
BE EMPOWERED TO EMPLOY THOSE WHO WILL INTERPRET, AND TO DEPLOY THE
WEALTH REQUIRED TO SUPPORT THE ENTERPRISE?     "OBVIOUSLY THE CONTROL
OVER WHO WILL BE KEPT OUT AND OVER PUNISHMENT-AND-REWARD SYSTEMS INSIDE
IS EXTREMELY IMPORTANT.  WHILE OUR STUDENTS STILL GENERALLY CONCEDE
THAT THE OLDER ADULTS WHO TEACH THEM MAY KNOW SOMETHING THEY DON'T,
THEY ARE ALSO ASSERTING THE UNIQUENESS OF THEIR OWN EXPERIENCE,
CLAIMING THAT THEY MAY KNOW SOMETHING WHICH THOSE NOW IN CHARGE DON'T.
THEY HAVE RETURNED TO THE KINDERGARTEN LEVEL TO REDISCOVER A PRINCIPLE
LONG REVERED IN AMERICAN EDUCATION-- THAT THE STUDENT PLAYS A POSITIVE
AND ACTIVE ROLE, THAT HE HAS SOMETHING DEFINITE AND ESSENTIAL TO
CONTRIBUTE TO HIS OWN EDUCATION. 

"THE YOUNG-- SUSPENDED PRECARIOUSLY IN A SOCIETY OBSESSED BY VIETNAM
VIOLENCE, CRIME VIOLENCE AND CULTURE VIOLENCE-- ARE RESTATING THE
ETERNAL QUESTIONS ABOUT EDUCATION:  WHAT IS IMPORTANT TO LEARN, AND HOW
MAY PEOPLE BEST LEARN TOGETHER?  REGARDING THESE ENDURING QUESTIONS,
THEY ARE ALSO ASKING THE ETERNAL QUESTION OF A SOCIETY WHICH OFFICIALLY
ENCOURAGES ITS YOUNG TO GROW UP FREE (EVEN WHILE KEEPING THEM IN
BONDAGE), NAMELY:  WHO SHALL JUDGE?  REGARDING THE PROBLEMS THESE
QUESTIONS SUGGEST, ACADEMIC TRADITION RESPONDS THROUGH AN UPTIGHT
DELINEATION OF JURISDICTIONS AND POWERS WITHIN THE UNIVERSITY. 

        .          .          .          . 

"TODAY'S CAMPUS DISRUPTIONS WERE BORN IN THE YEARS 1776 TO 1787. 
ALTHOUGH THE MIND OF THOMAS JEFFERSON WAS ANCHORED IN THE TRADITIONS OF
HEIDELBERG, OXFORD, PARIS, BOLOGNA, ROME, GREECE, THE RELIGIONS OF THE
EARLY CHRISTIANS AND THE ANCIENT HEBREWS, MINDS LIKE HIS TRANSFORMED
THE OLD INTO SOMETHING QUITE NEW, AS IN THE CASE OF HIS PROPOSAL FOR A
UNIVERSITY IN VIRGINIA.  WHAT WAS CREATED THEN WAS NOT, OF COURSE, THE
LATEST THING, NOR WAS IT NECESSARILY THE TRUTH.  BUT IT WAS AN
ADVENTURE, A GENUINE NEW DEPARTURE, UNLIKE MOST OF THE INSTITUTIONS OF
LEARNING WE HAVE CREATED IN THIS COUNTRY SINCE THE MORRILL ACT-- THAT
IS, MOST OF OUR HIGHER-EDUCATION ESTABLISHMENT. 

"THE TRADITIONS OF THE UNIVERSITY IN THE WEST ARE ANTI- IF NOT
COUNTER-REVOLUTIONARY.  OPERATING WITHIN THESE TRADITIONS, THE
UNIVERSITY HAS PRODUCED REVOLUTIONARY KNOWLEDGE, BUT INSTITUTIONALLY
THE USES OF THE KNOWLEDGE HAVE BEEN DIRECTED MAINLY TOWARD THE
CONFIRMATION OF THE STATUS QUO, PARTICULARLY THE POLITICAL AND CULTURAL
STATUS QUO.  THE THEMES OF PEACE, INTEGRATION, EQUALITY, FREEDOM AND
THE HUMANE USES OF KNOWLEDGE ARE ONES WHICH TRADITIONALLY FALL BEYOND
THE PURVIEW OF THE UNIVERSITY. 

"BUT IN PRINCIPLE THE MAIN THEMES OF OUR SOCIETY RUN COUNTER TO THIS
DEPLOYMENT OF KNOWLEDGE.  IN SPITE OF VIETNAM, POVERTY, RACISM AND THE
OVERBEARING LOGIC OF OUR TECHNOLOGY-- IN SPITE OF BEDFORD-STUYVESANT--
THE MAIN THEMES OF OUR COUNTRY, IN PRINCIPLE, WERE AND STILL ARE
REVOLUTIONARY.  THEY ARE REFLECTED IN SUCH QUESTIONS AS THESE:  CAN THE
REVOLUTIONARY KNOWLEDGE DEVELOPED IN THE UNIVERSITIES BE USED HUMANELY,
TO CONFORM WITH WHAT JEFFERSON AND HIS COLLEAGUES APPARENTLY MEANT? 
WHAT DOES EQUALITY MEAN, AND WHATEVER IT MEANT OR MEANS, CANE WE STILL
ACHIEVE A VERSION OF IT CONSISTENT WITH THIS ADVENTURE?  ARE REASON AND
DEMOCRACY REALLY CONSISTENT?  IS WAR IN BEHALF OF PEACE, GIVEN WHAT WE
KNOW NOW, REALISTIC?  CAN NEGROES WHO WERE ONCE PROPERTY SUDDENLY
BECOME PEOPLE?  ARE SOME GENOCIDES MORE DECENT THAN OTHERS, SOME
CESSPOOLS MORE FRAGRANT THAN OTHERS? 

"IN ANY EVENT, I KNOW THAT BEDFORD-STUYVESANT IS CRAMMED FULL OF RED
WHITE-AND-BLUE AMERICANS.  THEY REALLY BELIEVE THAT WE OUGHT TO
PRACTICE WHAT WE PREACH, AND THAT'S THE PROBLEM.  WE'VE OVERSOLD
AMERICA TO OURSELVES, AND SO MANY OF MY VERY GOOD FRIENDS-- LOOKING AT
THE STREET VIOLENCE AND THE CIRCUSES IN THE COURTS AND ON THE CAMPUSES-
WHO BELIEVE WE CONFRONT A DEEPLY UN-AMERICAN PHENOMENON, WHO THINK WE
FACE A SERIOUS THREAT TO AMERICAN VALUES, COMPLETELY MISREAD WHAT IS
GOING ON THERE.  WE FACE A VIBRANT, FAR-REACHING REASSERTION OF WHAT
THIS COUNTRY CLAIMS, WHAT IT HAS ALWAYS CLAIMED IT IS."  W. BIRENBAUM,
SOMETHING FOR EVERYBODY IS NOT ENOUGH 67-69, 248-249. 

MR. JUSTICE REHNQUIST, CONCURRING IN THE RESULT. 

WHILE I DO NOT SUBSCRIBE TO SOME OF THE LANGUAGE IN THE COURT'S
OPINION, I CONCUR IN THE RESULT THAT IT REACHES.  AS I UNDERSTAND THE
COURT'S HOLDING, THE CASE IS SENT BACK FOR RECONSIDERATION BECAUSE
RESPONDENTS MAY NOT HAVE MADE IT SUFFICIENTLY CLEAR TO PETITIONERS THAT
THE DECISION AS TO RECOGNITION WOULD BE CRITICALLY INFLUENCED BY
PETITIONERS' WILLINGNESS TO AGREE IN ADVANCE TO ABIDE BY REASONABLE
REGULATIONS PROMULGATED BY THE COLLEGE. 

I FIND THE IMPLICATION CLEAR FROM THE COURT'S OPINION THAT THE
CONSTITUTIONAL LIMITATIONS ON THE GOVERNMENT'S ACTING AS ADMINISTRATOR
OF A COLLEGE DIFFER FROM THE LIMITATIONS ON THE GOVERNMENT'S ACTING AS
SOVEREIGN TO ENFORCE ITS CRIMINAL LAWS.  THE COURT'S QUOTATIONS FROM
TINKER V. DES MOINES INDEPENDENT SCHOOL DISTRICT, 393 U.S. 503, 506
(1969), TO THE EFFECT THAT FIRST AMENDMENT RIGHTS MUST ALWAYS BE
APPLIED "IN LIGHT OF THE SPECIAL CHARACTERISTICS OF THE . . .
ENVIRONMENT," AND FROM ESTEBAN V. CENTRAL MISSOURI STATE COLLEGE, 415
F.2D 1077, 1089 (CA8 1969), TO THE EFFECT THAT A COLLEGE "MAY EXPECT
THAT ITS STUDENTS ADHERE TO GENERALLY ACCEPTED STANDARDS OF CONDUCT,"
EMPHASIZE THIS FACT. 

CASES SUCH AS UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75 (1947),
AND PICKERING V. BOARD OF EDUCATION, 391 U.S. 563 (1968), MAKE IT
EQUALLY CLEAR THAT THE GOVERNMENT IN ITS CAPACITY AS EMPLOYER ALSO
DIFFERS CONSTITUTIONALLY FROM THE GOVERNMENT IN ITS CAPACITY AS THE
SOVEREIGN EXECUTING CRIMINAL LAWS.  THE COURT IN PICKERING SAID: 

"THE PROBLEM IN ANY CASE IS TO ARRIVE AT A BALANCE BETWEEN THE
INTERESTS OF THE TEACHER, AS A CITIZEN, IN COMMENTING UPON MATTERS OF
PUBLIC CONCERN AND THE INTEREST OF THE STATE, AS AN EMPLOYER, IN
PROMOTING THE EFFICIENCY OF THE PUBLIC SERVICES IT PERFORMS THROUGH ITS
EMPLOYEES."  391 U.S.,AT 568. 

BECAUSE OF THESE ACKNOWLEDGED DISTINCTIONS OF CONSTITUTIONAL
DIMENSION BASED UPON THE ROLE OF THE GOVERNMENT, I HAVE SERIOUS DOUBT
AS TO WHETHER CASES DEALING WITH THE IMPOSITION OF CRIMINAL SANCTIONS,
SUCH AS BRANDENBURG V. OHIO, 395 U.S. 444 (1969), SCALES V. UNITED
STATES, 367 U.S. 203 (1961), AND YATES V. UNITED STATES, 354 U.S. 298
(1957), ARE PROPERLY APPLICABLE TO THIS CASE DEALING WITH THE
GOVERNMENT AS COLLEGE ADMINISTRATOR.  I ALSO DOUBT WHETHER CASES
DEALING WITH THE PRIOR RESTRAINT IMPOSED BY INJUNCTIVE PROCESS OF A
COURT, SUCH AS NEAR V. MINNESOTA, 283 U.S. 697 (1931), ARE PRECISELY
COMPARABLE TO THIS CASE, IN WHICH A TYPICAL SANCTION IMPOSED WAS THE
REQUIREMENT THAT THE GROUP ABANDON ITS PLAN TO MEET IN THE COLLEGE
COFFEE SHOP. 

PRIOR CASES DEALING THE FIRST AMENDMENT RIGHTS ARE NOT FUNGIBLE
GOODS, AND I THINK THE DOCTRINE OF THESE CASES SUGGESTS TWO IMPORTANT
DISTINCTIONS.  THE GOVERNMENT AS EMPLOYER OR SCHOOL ADMINISTRATOR MAY
IMPOSE UPON EMPLOYEES AND STUDENTS REASONABLE REGULATIONS THAT WOULD BE
IMPERMISSIBLE IF IMPOSED BY THE GOVERNMENT UPON ALL CITIZENS.  AND
THERE CAN BE A CONSTITUTIONAL DISTINCTION BETWEEN THE INFLICTION OF
CRIMINAL PUNISHMENT, ON THE ONE HAND, AND THE IMPOSITION OF MILDER
ADMINISTRATIVE OR DISCIPLINARY SANCTIONS, ON THE OTHER, EVEN THOUGH THE
SAME FIRST AMENDMENT INTEREST IS IMPLICATED BY EACH. 

BECAUSE SOME OF THE LANGUAGE USED BY THE COURT TENDS TO OBSCURE
THESE DISTINCTIONS, WHICH I BELIEVE TO BE IMPORTANT, I CONCUR ONLY IN
THE RESULT. 

MELVIN L. WULF ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE EUGENE Z. DUBOSE, JR., ALVIN PUDLIN, AND SANFORD JAY ROSEN. 

F. MICHAEL AHERN, ASSISTANT ATTORNEY GENERAL OF CONNECTICUT, ARGUED
THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WAS ROBERT K.
KILLIAN, ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL OF CALIFORNIA, AND DONALD B. DAY, DEPUTY
ATTORNEY GENERAL, FOR THE BOARD OF TRUSTEES OF CALIFORNIA STATE
COLLEGES; BY FRANK G. CARRINGTON, JR., AND ALAN S. GANZ FOR AMERICANS
FOR EFFECTIVE LAW ENFORCEMENT, INC.; AND BY MORRIS I. LEIBMAN AND
PHILIP B. KURLAND FOR THE AMERICA ASSOCIATION OF PRESIDENTS OF
INDEPENDENT COLLEGES AND UNIVERSITIES. 
..END :













MANCUSI V. STUBBS, 408 U.S. 204 


       MANCUSI, CORRECTIONAL SUPERINTENDENT V. STUBBS

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 71-237.  ARGUED APRIL 17, 1972-- DECIDED JUNE 26, 1972 


NEW YORK STATE SENTENCED RESPONDENT AS A SECOND OFFENDER, BASED ON
HIS 1964 FELONY CONVICTION IN TENNESSEE.  RESPONDENT'S PETITION FOR
FEDERAL HABEAS CORPUS, DENIED BY THE DISTRICT COURT, WAS GRANTED BY THE
COURT OF APPEALS, WHICH CONCLUDED THAT THE TENNESSEE CONVICTION
VIOLATED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO CONFRONT WITNESSES
AND THUS WAS NOT AVAILABLE AS THE PREDICATE FOR A "SECOND OFFENDER"
STIFFER PUNISHMENT.  THE STATE THEN RESENTENCED RESPONDENT TO THE SAME
SENTENCE, BASED UPON STILL ANOTHER CONVICTION IN TEXAS.  HELD: 

1.  NEW YORK STATE'S RESENTENCING OF RESPONDENT DID NOT MOOT THE
INSTANT CASE SINCE THE RESPONDENT'S APPEAL INVOLVING THE VALIDITY OF
THE TEXAS CONVICTION IS STILL IN THE NEW YORK STATE COURTS, AND
THEREFORE NEW YORK STATE HAS A PRESENT INTEREST IN THE AVAILABILITY OF
THE TENNESSEE CONVICTION AS A PREDICATE FOR THE STIFFER PUNISHMENT. 
PP. 205-207. 

2.  UPON DISCOVERING THAT A STATE'S WITNESS HAD REMOVED HIMSELF
PERMANENTLY TO A FOREIGN COUNTRY, THE STATE OF TENNESSEE WAS POWERLESS
TO COMPEL HIS ATTENDANCE AT RESPONDENT'S SECOND TRIAL, EITHER THROUGH
ITS OWN PROCESS OR THROUGH ESTABLISHED PROCEDURES DEPENDING UPON THE
VOLUNTARY ASSISTANCE OF ANOTHER GOVERNMENT; THE RESULTANT PREDICATE OF
UNAVAILABILITY WAS SUFFICIENTLY STRONG NOT TO WARRANT A FEDERAL HABEAS
CORPUS COURT'S UPSETTING THE STATE'S DETERMINATION THAT THE WITNESS WAS
NOT AVAILABLE.  BARBER V. PAGE, 390 U.S. 719, DISTINGUISHED.  PP. 207
213. 

3.  WHERE A STATE'S WITNESS IS BONA FIDE UNAVAILABLE, THE
REQUIREMENTS OF THE CONFRONTATION CLAUSE ARE MET WHEN PRIOR-RECORDED
TESTIMONY OF THE WITNESS IS ADMITTED, AS OCCURRED IN THE 1964 TRIAL, IF
THAT PRIOR TESTIMONY BEARS "INDICIA OF RELIABILITY" THAT WOULD AFFORD
"THE TRIER OF FACT A SATISFACTORY BASIS FOR EVALUATING THE TRUTH OF THE
PRIOR STATEMENT."  DUTTON V. EVANS, 400 U.S. 74, 89.  PP. 213-216. 

442 F.2D 561, REVERSED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED. 
MARSHALL, J., FILED A DISSENTING OPINION, IN PART II OF WHICH DOUGLAS,
J., JOINED, POST, P. 216. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENT STUBBS WAS CONVICTED OF A FELONY IN A NEW YORK STATE
COURT AND SENTENCED AS A SECOND OFFENDER UNDER THE LAWS OF THAT STATE
BY REASON OF A PRIOR TENNESSEE MURDER CONVICTION OBTAINED IN 1964.  HE
THEREAFTER SOUGHT FEDERAL HABEAS CORPUS, CLAIMING THAT THE TENNESSEE
CONVICTION WAS HAD IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT
RIGHT TO CONFRONT WITNESSES AGAINST HIM, AND THUS COULD NOT BE USED BY
NEW YORK AS THE PREDICATE FOR A STIFFER PUNISHMENT.  THE DISTRICT COURT
DENIED HABEAS CORPUS, BUT THE COURT OF APPEALS REVERSED, 442 F.2D 561
(CA2 1971).  WE GRANTED CERTIORARI, 404 U.S. 1014, AND REVERSE FOR THE
REASONS HEREINAFTER STATED. 

        I 

PRIOR TO OUR CONSIDERATION OF THE MERITS IT IS NECESSARY TO DEAL
WITH A SUGGESTION THAT BECAUSE PETITIONER DID NOT SEEK A STAY OF THE
MANDATE OF THE COURT OF APPEALS, BUT RATHER OBEYED IT AND RESENTENCED
STUBBS, THIS CASE IS THEREFORE MOOT.  THE PARTIES AGREED AT ORAL
ARGUMENT THAT STUBBS UPON RESENTENCING IN NEW YORK HAD RECEIVED THE
SAME SENTENCE, BASED UPON STILL ANOTHER CONVICTION IN TEXAS.  HOWEVER,
HE WAS APPEALING FROM THAT SENTENCE ON GROUNDS THAT THE TEXAS
CONVICTION WAS CONSTITUTIONALLY INFIRM, AND THAT APPEAL HAS NOT RUN ITS
COURSE EVEN THROUGH THE STATE COURTS. 

UNTIL IT CAN BE SAID WITH CERTAINTY THAT THE NEW YORK COURTS MAY
VALIDLY RESENTENCE RESPONDENT TO THE SAME TERM AS THEY IMPOSED PRIOR TO
THE DECISION OF THE COURT OF APPEALS NOW UNDER REVIEW HERE, PETITIONER
CONTINUES TO HAVE AN INTEREST IN THE AVAILABILITY OF THE TENNESSEE
CONVICTION AS A SUPPORT FOR SECOND-OFFENDER SENTENCING OF RESPONDENT. 
PETITIONER'S OBEDIENCE TO THE MANDATE OF THE COURT OF APPEALS AND THE
JUDGMENT OF THE DISTRICT COURT DOES NOT MOOT THIS CASE.  /1/  IN BAKERY
DRIVERS V. WAGSHAL, 333 U.S. 437 (1948), THE UNION APPEALED FROM AN
INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT ON THE GROUND
THAT IT HAD BEEN ISSUED IN VIOLATION OF THE PROVISIONS OF THE NORRIS
LAGUARDIA ACT.  DEALING WITH A "PRELIMINARY CLAIM" OF MOOTNESS IN THAT
CASE, THE COURT SAID: 

"THE CLAIM OF MOOTNESS IS ALSO BASED ON AN AFFIDAVIT STATING THAT
AFTER DISMISSAL OF THE APPEAL BY THE COURT OF APPEALS, THE UNION LIFTED
ITS BOYCOTT.  SINCE THE RECORD DOES NOT SHOW THAT A STAY OF THE
INJUNCTION WAS GRANTED PENDING ACTION IN THIS COURT, WE MUST ASSUME
THAT THE UNION'S ACTION WAS MERELY OBEDIENCE TO THE JUDGMENT NOW HERE
FOR REVIEW.  WE THEREFORE TURN TO THE MERITS."  333 U.S.,AT 442. 

MUCH EARLIER THE COURT HAD STATED A SIMILAR VIEW OF MOOTNESS IN
THESE CIRCUMSTANCES: 

     "THERE CAN BE NO QUESTION THAT A DEBTOR AGAINST WHOM A
JUDGMENT

  FOR MONEY IS RECOVERED MAY PAY THAT JUDGMENT AND BRING A WRIT OF

  ERROR TO REVERSE IT, AND IF REVERSED CAN RECOVER BACK HIS MONEY. 

  AND A DEFENDANT IN AN ACTION OF EJECTMENT MAY BRING A WRIT OF

  ERROR, AND FAILING TO GIVE A SUPERSEDEAS BOND, MAY SUBMIT TO THE

  JUDGMENT BY GIVING POSSESSION OF THE LAND, WHICH HE CAN RECOVER

  IF HE REVERSES THE JUDGMENT BY MEANS OF A WRIT OF RESTITUTION. 

  IN BOTH THESE CASES THE DEFENDANT HAS MERELY SUBMITTED TO PERFORM

  THE JUDGMENT OF THE COURT, AND HAS NOT THEREBY LOST HIS RIGHT TO

  SEEK A REVERSAL OF THAT JUDGMENT BY WRIT OF ERROR OR APPEAL." 

DAKOTA COUNTY V. GLIDDEN, 113 U.S. 222, 224 (1885). 

UNDER THESE AUTHORITIES THE CASE IS NOT MOOT, AND WE TURN TO THE
MERITS. 

        II 

IN JULY 1954, RESPONDENT WAS CONVICTED IN THE TENNESSEE TRIAL COURT
OF MURDER IN THE FIRST DEGREE, ASSAULT WITH INTENT TO MURDER, AND TWO
COUNTS OF KIDNAPING.  THE JURY IMPANELED FOR THAT TRIAL COULD HAVE
CONCLUDED FROM THE EVIDENCE PRESENTED TO IT THAT RESPONDENT, A FEW DAYS
AFTER HIS RELEASE FROM A TEXAS PENITENTIARY IN JUNE 1954, KIDNAPED MR.
AND MRS. ALEX HOLM AND FORCED THEM AT GUNPOINT TO ACCOMPANY HIM IN
THEIR CAR.  STUBBS DROVE THE CAR AND SAT IN THE FRONT SEAT, WHILE THE
HOLMS SAT IN THE BACK SEAT.  MR. HOLM TESTIFIED THAT SOMEWHERE EAST OF
BLOUNTVILLE, TENNESSEE, STUBBS, WITHOUT SAYING ANYTHING, SHOT HIM TWICE
IN THE HEAD AND SHOT AND KILLED MRS. HOLM.  STUBBS THEN LEFT THE CAR,
OBTAINED A RIDE AS A HITCHHIKER, AND WAS ULIMATELY ARRESTED AT A
ROADBLOCK.  AT THE TIME OF HIS ARREST, STUBBS EXPLAINED THE BLOOD ON
HIS CLOTHING AS HAVING RESULTED FROM HIS HAVING FALLEN OFF A CLIFF
WHILE FISHING. 

STUBBS TOOK THE STAND IN HIS OWN DEFENSE, ADMITTED THAT HE HAD
KIDNAPED THE HOLMS AT GUNPOINT, AND THAT AS HE DROVE THE HOLMS' CAR,
WITH THEN IN THE BACK SEAT, HE AT INTERVALS POINTED THE GUN IN MRS.
HOLM'S FACE.  HE TESTIFIED THAT DURING THE RIDE HE APOLOGIZED FOR
FORCING A RIDE; THAT THE HOLMS THEN ASSURED HIM THEY WOULD LET HIM OUT
AT BRISTOL, TENNESSEE, AND WOULD NOT CAUSE HIM ANY TROUBLE; AND THAT HE
THEREFORE LAID THE PISTOL ON THE FRONT SEAT OF THE CAR.  HE ALSO
TESTIFIED THAT NEAR BRISTOL, TENNESSEE: 

"IT SEEMS AWFUL STRANGE, BUT EVERYTHING JUST SEEMED TO BE AWFUL
STILL AND I REMEMBER A TREE AND IT JUST SEEMED TO COME UP JUST LIKE
THAT IN CLEAR FOCUS, BUT IN A REDDISH HAZE.  I MEAN THERE WAS NO PAIN
OR NOTHING . . . I FELT A SHARP PAIN THAT SEEM TO START IN MY HEAD AND
GO ALL THE WAY DOWN THROUGH ME AND I REACHED UP WITH BOTH HANDS AND I
HEARD THIS LOUD ROAR, BANG . . . STUFF STARTED RUNNING DOWN MY FACE AND
DOWN MY SHIRT AND ALL THAT I COULD THINK OF THAT HE HAS GOT THE GUN.  .
. . I JUST WENT OUTSIDE THROUGH THE CAR DOOR.  . . . " 

AFTER THAT, STUBBS TESTIFIED, "EVERYTHING WENT BLACK." 

NINE YEARS AFTER HIS STATE COURT TRIAL FOR MURDER, STUBBS SOUGHT
RELEASE ON FEDERAL HABEAS CORPUS FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE. 

HE SUCCESSFULLY URGED UPON THAT COURT THE CONTENTION THAT HE HAD
BEEN DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN THIS 1954 TRIAL
BECAUSE COUNSEL HAD BEEN APPOINTED FOR HIM ONLY FOUR DAYS BEFORE THE
TRIAL TOOK PLACE.  STUBBS V. BOMAR, CIVIL ACTION NO. 3585 (MD TENN.
1964).  THE STATE OF TENNESSEE THEN ELECTED TO RETRY HIM, AND DID SO IN
1964.  BY THAT TIME HOLM, WHO HAD BEEN BORN IN SWEDEN BUT HAD BECOME A
NATURALIZED AMERICAN CITIZEN, HAD RETURNED TO SWEDEN AND TAKEN UP
PERMANENT RESIDENCE THERE.  TENNESSEE ISSUED A SUBPOENA THAT WAS SENT
TO TEXAS AUTHORITIES IN AN ATTEMPT TO SERVE HOLM AT HIS LAST KNOWN
UNITED STATES ADDRESS.  NO SERVICE HAVING BEEN OBTAINED, THE STATE AT
TRIAL CALLED HOLM'S SON AS A WITNESS AND ELICITED FROM HIM THE FACT
THAT HIS FATHER NOW RESIDED IN SWEDEN.  OVER APPROPRIATE OBJECTION ON
CONSTITUTIONAL GROUNDS, THE TENNESSEE TRIAL JUDGE THEN PERMITTED HOLM'S
TESTIMONY AT THE EARLIER TRIAL TO BE READ TO THE JURY.  STUBBS AGAIN
TOOK THE STAND, RECITED HIS VERSION OF THE EVENTS, AND WAS AGAIN
CONVICTED.  THIS CONVICTION WAS IN DUE COURSE AFFIRMED BY THE SUPREME
COURT OF TENNESSEE.  STUBBS V. STATE, 216 TENN. 567, 393 S.W.2D 150
(1965). 

RESPONDENT HAS CHALLENGED THE PRESENT SECOND-OF-FENDER SENTENCE THAT
WAS IMPOSED UPON HIM BY THE NEW YORK COURTS ON THE GROUND THAT HIS 1964
CONVICTION UPON RETRIAL WAS CONSTITUTIONALLY INFIRM BECAUSE HE WAS
DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO CONFRONT THE WITNESS
HOLM.  THE COURT OF APPEALS SUSTAINED THIS CONTENTION, RELYING ON THIS
COURT'S OPINION IN BARBER V. PAGE, 390 U.S. 719 (1968). 

IN BARBER, A PROSPECTIVE WITNESS FOR THE PROSECUTION IN AN OKLAHOMA
FELONY TRIAL WAS INCARCERATED IN A FEDERAL PRISON IN TEXAS.  THE COURT
THERE SAID: 

     "WE START WITH THE FACT THAT THE STATE MADE ABSOLUTELY NO

  EFFORT TO OBTAIN THE PRESENCE OF WOODS AT TRIAL OTHER THAN TO

  ASCERTAIN THAT HE WAS IN A FEDERAL PRISON OUTSIDE OKLAHOMA.  IT

  MUST BE ACKNOWLEDGED THAT VARIOUS COURTS AND COMMENTATORS HAVE

  HERETOFORE ASSUMED THAT THE MERE ABSENCE OF A WITNESS FROM THE

JURISDICTION WAS SUFFICIENT GROUND FOR DISPENSING WITH

CONFRONTATION ON THE THEORY THAT 'IT IS IMPOSSIBLE TO COMPEL HIS

  ATTENDANCE, BECAUSE THE PROCESS OF THE TRIAL COURT IS OF NO FORCE

  WITHOUT THE JURISDICTION, AND THE PARTY DESIRING HIS TESTIMONY IS

  THEREFORE HELPLESS.'  5 WIGMORE, EVIDENCE 1404 (3D ED. 1940). 

     "WHATEVER MAY HAVE BEEN THE ACCURACY OF THAT THEORY AT ONE

  TIME, IT IS CLEAR THAT AT THE PRESENT TIME INCREASED COOPERATION

  BETWEEN THE STATES THEMSELVES AND BETWEEN THE STATES AND THE

  FEDERAL GOVERNMENT HAS LARGELY DEPRIVED IT OF ANY CONTINUING

  VALIDITY IN THE CRIMINAL LAW.  FOR EXAMPLE, IN THE CASE OF A

 PROSPECTIVE WITNESS CURRENTLY IN FEDERAL CUSTODY, 28 U.S.C.

  2241(C)(5) GIVES FEDERAL COURTS THE POWER TO ISSUE WRITS OF

  HABEAS CORPUS AD TESTIFICANDUM AT THE REQUEST OF STATE

  PROSECUTORIAL AUTHORITIES.  (CITATIONS OMITTED.)  IN ADDITION, IT

  IS THE POLICY OF THE UNITED STATES BUREAU OF PRISONS TO PERMIT

  FEDERAL PRISONERS TO TESTIFY IN STATE COURT CRIMINAL PROCEEDINGS

  PURSUANT TO WRITS OF HABEAS CORPUS AD TESTIFICANDUM ISSUED OUT OF

  STATE COURTS.  . . . 

     "IN THIS CASE THE STATE AUTHORITIES MADE NO EFFORT TO AVAIL

  THEMSELVES OF EITHER OF THE ABOVE ALTERNATIVE MEANS OF SEEKING TO

  SECURE WOODS' PRESENCE AT PETITIONER'S TRIAL."  (FOOTNOTES

  OMITTED.)  ID., AT 723-724. 

BECAUSE THE STATE HAD MADE NO ATTEMPT TO USE ONE OF THESE METHODS TO
OBTAIN THE ATTENDANCE OF THE WITNESS AT TRIAL, THE COURT REVERSED THE
CONVICTION ON THAT GROUND WITHOUT CONSIDERING WHETHER THE TESTIMONY
TAKEN AT THE PRELIMINARY HEARING WAS SUBJECT TO CROSS-EXAMINATION.  THE
COURT SAID: 

     "MOREOVER, WE WOULD REACH THE SAME RESULT ON THE FACTS OF THIS

  CASE HAD PETITIONER'S COUNSEL ACTUALLY CROSS-EXAMINED WOODS AT

THE PRELIMINARY HEARING.  SEE MOTES V. UNITED STATES, 178 U.S.

  458 (1900).  THE RIGHT TO CONFRONTATION IS BASICALLY A TRIAL

  RIGHT.  IT INCLUDES BOTH THE OPPORTUNITY TO CROSS-EXAMINE AND THE

  OCCASION FOR THE JURY TO WEIGH THE DEMEANOR OF THE WITNESS.  A

  PRELIMINARY HEARING IS ORDINARILY A MUCH LESS SEARCHING

  EXPLORATION INTO THE MERITS OF A CASE THAN A TRIAL, SIMPLY

  BECAUSE ITS FUNCTION IS THE MORE LIMITED ONE OF DETERMINING

  WHETHER PROBABLE CAUSE EXISTS TO HOLD THE ACCUSED FOR TRIAL. 

  WHILE THERE MAY BE SOME JUSTIFICATION FOR HOLDING THAT THE

  OPPORTUNITY FOR CROSS-EXAMINATION OF A WITNESS AT A PRELIMINARY

  HEARING SATISFIES THE DEMANDS OF THE CONFRONTATION CLAUSE WHERE

  THE WITNESS IS SHOWN TO BE ACTUALLY UNAVAILABLE, THIS IS NOT, AS

  WE HAVE POINTED OUT, SUCH A CASE."  390 U.S.,AT 725-726. 

IN THIS CASE, OF COURSE, HOLM WAS NOT MERELY ABSENT FROM THE STATE OF
TENNESSEE; HE WAS A PERMANENT RESIDENT OF SWEDEN.  RESPONDENT ARGUES
THAT TENNESSEE MIGHT HAVE OBTAINED HOLM AS A TRIAL WITNESS BY
ATTEMPTING TO INVOKE 28 U.S.C. 1783(A), WHICH PROVIDED AS OF THE TIME
HERE RELEVANT THAT: 

     "A COURT OF THE UNITED STATES MAY SUBPOENA, FOR APPEARANCE

  BEFORE IT, A CITIZEN OR RESIDENT OF THE UNITED STATES WHO . . .

IS BEYOND THE JURISDICTION OF THE UNITED STATES AND WHOSE

 TESTIMONY IN A CRIMINAL PROCEEDING IS DESIRED BY THE ATTORNEY

  GENERAL.  . . . "  (1958 ED.) 

WE HAVE BEEN CITED TO NO AUTHORITY APPLYING THIS SECTION TO PERMIT
SUBPOENA BY A FEDERAL COURT FOR TESTIMONY IN A STATE FELONY TRIAL, AND
CERTAINLY THE STATUTE ON ITS FACE DOES NOT APPEAR TO BE DESIGNED FOR
THAT PURPOSE.  /2/ 

THE UNIFORM ACT TO SECURE THE ATTENDANCE OF WITNESSES FROM WITHOUT A
STATE, THE AVAILABILITY OF FEDERAL WRITS OF HABEAS CORPUS AD
TESTIFICANDUM, AND THE ESTABLISHED PRACTICE OF THE UNITED STATES BUREAU
OF PRISONS TO HONOR STATE WRITS OF HABEAS CORPUS AD TESTIFICANDUM, ALL
SUPPORTED THE COURT'S CONCLUSION IN BARBER THAT THE STATE HAD NOT MET
ITS OBLIGATIONS TO MAKE A GOOD-FAITH EFFORT TO OBTAIN THE PRESENCE OF
THE WITNESS MERELY BY SHOWING THAT HE WAS BEYOND THE BOUNDARIES OF THE
PROSECUTING STATE.  THERE HAVE BEEN, HOWEVER, NO CORRESPONDING
DEVELOPMENTS IN THE AREA OF OBTAINING WITNESSES BETWEEN THIS COUNTRY
AND FOREIGN NATIONS.  UPON DISCOVERING THAT HOLM RESIDED IN A FOREIGN
NATION, THE STATE OF TENNESSEE, SO FAR AS THIS RECORD SHOWS, WAS
POWERLESS TO COMPEL HIS ATTENDANCE AT THE SECOND TRIAL, EITHER THROUGH
ITS OWN PROCESS OR THROUGH ESTABLISHED PROCEDURES DEPENDING ON THE
VOLUNTARY ASSISTANCE OF ANOTHER GOVERNMENT.  CF. PEOPLE V. TRUNNELL, 19
CAL.APP.  3D 567, 96 CAL.RPTR.  810 (1971).  WE THEREFORE HOLD THAT THE
PREDICATE OF UNAVAILABILITY WAS SUFFICIENTLY STRONGER HERE THAN IN
BARBER THAT A FEDERAL HABEAS COURT WAS NOT WARRANTED IN UPSETTING THE
DETERMINATION OF THE STATE TRIAL COURT AS TO HOLM'S UNAVAILABILITY. 
BEFORE IT CAN BE SAID THAT STUBBS' CONSTITUTIONAL RIGHT TO CONFRONT
WITNESSES WAS NOT INFRINGED, HOWEVER, THE ADEQUACY OF HOLM'S
EXAMINATION AT THE FIRST TRIAL MUST BE TAKEN INTO CONSIDERATION. 

IN ADDITION TO BARBER V. PAGE, RECENT DECISIONS OF THIS COURT THAT
HAVE DEALT AT SOME LENGTH WITH THE REQUIREMENTS OF THE CONFRONTATION
CLAUSE ARE CALIFORNIA V. GREEN, 399 U.S. 149 (1970), AND DUTTON V.
EVANS, 400 U.S. 74 (1970).  THE FOCUS OF THE COURT'S CONCERN HAS BEEN
TO INSURE THAT THERE "ARE INDICIA OF RELIABILITY WHICH HAVE BEEN WIDELY
VIEWED AS DETERMINATIVE OF WHETHER A STATEMENT MAY BE PLACED BEFORE THE
JURY THOUGH THERE IS NO CONFRONTATION OF THE DECLARANT,"  DUTTON V.
EVANS, SUPRA, AT 89, AND TO "AFFORD THE TRIER OF FACT A SATISFACTORY
BASIS FOR EVALUATING THE TRUTH OF THE PRIOR STATEMENT,"  CALIFORNIA V.
GREEN, SUPRA, AT 161.  IT IS CLEAR FROM THESE STATEMENTS, AND FROM
NUMEROUS PRIOR DECISIONS OF THIS COURT, THAT EVEN THOUGH THE WITNESS BE
UNAVAILABLE HIS PRIOR TESTIMONY MUST BEAR SOME OF THESE "INDICIA OF
RELIABILITY" REFERRED TO IN DUTTON.     AT LEAST SINCE THE DECISION OF
THIS COURT IN MATTOX V. UNITED STATES, 156 U.S. 237 (1985), PRIOR
RECORDED TESTIMONY HAS BEEN ADMISSIBLE IN APPROPRIATE CASES.  THE
CIRCUMSTANCES SURROUNDING THE GIVING OF ALEX HOLM'S TESTIMONY AT THE
1954 TRIAL WERE SIGNIFICANTLY MORE CONDUCIVE TO AN ASSURANCE OF
RELIABILITY THAN WERE THOSE OBTAINING IN BARBER V. PAGE, SUPRA.  THE
1954 TENNESSEE PROCEEDING WAS A TRIAL OF A SERIOUS FELONY ON THE
MERITS, CONDUCTED IN A COURT OF RECORD BEFORE A JURY, RATHER THAN
BEFORE A MAGISTRATE.  /3/  STUBBS WAS REPRESENTED BY COUNSEL WHO COULD
AND DID EFFECTIVELY CROSS-EXAMINE PROSECUTION WITNESSES. 

STUBBS URGES THAT BECAUSE THE 1954 CONVICTION WAS ITSELF OVERTURNED
BY A FEDERAL HABEAS COURT ON A FINDING OF INEFFECTIVE ASSISTANCE OF
COUNSEL, THAT COURT MUST NECESSARILY HAVE CONCLUDED THAT THE CROSS
EXAMINATION OF HOLM CONDUCTED BY SUCH COUNSEL LIKEWISE FELL SHORT OF
CONSTITUTIONAL STANDARDS.  THE FEDERAL HABEAS JUDGE IN STUBBS V. BOMAR,
SUPRA, HOWEVER, RESTED HIS DETERMINATION ON AN APPARENT PER SE RULE OF
INEFFECTIVE ASSISTANCE THAT WAS CONCLUSIVELY PRESUMED FROM THE SHORT
INTERVAL BETWEEN THE TIME OF COUNSEL'S APPOINTMENT AND THE DATE OF THE
TRIAL.  IF THE HABEAS COURT HAD RENDERED ITS DECISION AFTER OUR HOLDING
IN CHAMBERS V. MARONEY, 399 U.S. 42 (1970), WHICH DISAPPROVED ANY SUCH
PER SE RULE, IT MIGHT HAVE ADDRESSED ITSELF TO THE EFFECTIVENESS OF THE
EXAMINATION OF THE WITNESS HOLM.  BUT IT DID NOT IN FACT DO SO.  WHEN
STUBBS APPEALED HIS 1965 CONVICTION TO THE SUPREME COURT OF TENNESSEE,
THAT COURT IN AFFIRMING THE JUDGMENT EXPRESSLY DETERMINED THAT THE
PRIOR CROSS-EXAMINATION OF HOLM HAD BEEN ADEQUATE.  STUBBS V. STATE,
216 TENN. 567, 393 S.W.2D 150 (1965).  WHATEVER MIGHT BE THE CASE IN
OTHER CIRCUMSTANCES, THE STATE OF NEW YORK WAS NOT BOUND UNDER ANY
THEORY OF RES JUDICATA BY STUBBS V. BOMAR AS TO THE EFFICACY OF THE
PRIOR CROSS-EXAMINATION OF THE WITNESS HOLM. 

STUBBS ALSO CONTENDS THAT EVEN THOUGH THE PRIOR DETERMINATION MAY
NOT BE BINDING UPON SUBSEQUENT REVIEW, THE FACT THAT COUNSEL WAS
APPOINTED ONLY FOUR DAYS BEFORE TRIAL NECESSARILY REQUIRES A FINDING
THAT THE CROSS-EXAMINATION OF HOLM WAS CONSTITUTIONALLY INADEQUATE. 
COUNSEL FOR STUBBS AT THE 1964 TRIAL PLACED IN THE RECORD A LIST OF 12
QUESTIONS NOT ASKED OF HOLM IN 1954, WHICH HE SAID HE WOULD HAVE ASKED
HAD THE WITNESS BEEN PRESENT AT THE SECOND TRIAL.  WITH ONE EXCEPTION
THESE WERE DIRECTED TO THE EVENTS LEADING UP TO AND SURROUNDING THE
SHOOTING.  THOUGH NOT ASKED IN HAEC VERBA IN 1954, THEY WERE
NONETHELESS ADVERTED TO IN THE EARLIER CROSS-EXAMINATION.  NO ONE
DEFENSE COUNSEL WILL EVER DEVELOP PRECISELY THE SAME LINES OF INQUIRY
OR FRAME HIS QUESTIONS IN EXACTLY THE WORDS OF ANOTHER, BUT FROM THIS
RECORD COUNSEL AT THE RETRIAL DID NOT IN HIS PROFFER SHOW ANY NEW AND
SIGNIFICANTLY MATERIAL LINE OF CROSS-EXAMINATION THAT WAS NOT AT LEAST
TOUCHED UPON IN THE FIRST TRIAL. 

THE COURT OF APPEALS CONCLUDED THAT THE CROSS-EXAMINATION HAD BEEN
INADEQUATE.  IT REACHED THIS CONCLUSION, AT LEAST IN PART, BECAUSE IT
FELT THAT HOLM COULD HAVE BEEN QUESTIONED ABOUT WHETHER STUBBS,
ALTHOUGH ORIGINALLY HAVING KIDNAPED THE HOLMS AT GUNPOINT, LATER BECAME
IN EFFECT THEIR GUEST.  PARTS OF STUBBS' OWN TESTIMONY PRESENTED THAT
VERSION OF THE EVENTS TO THE JURY, AND THE SECOND CIRCUIT THOUGHT IT
SIGNIFICANT BECAUSE EVEN IF STUBBS FIRED HIS PISTOL ACCIDENTALLY, HE
MIGHT STILL HAVE BEEN FOUND GUILTY OF FELONY MURDER UNLESS THE FELONY
OF KIDNAPING HAD ENDED.  UNDER THIS THOERY, IF STUBBS HAD DURING THE
TRIP BEEN TRANSMOGRIFIED FROM A KIDNAPER INTO A GUEST, AT LEAST THE
ARGUMENT TO THE JURY AS TO WHETHER THE KIDNAPING HAD ENDED BEFORE THE
SHOOTING WOULD HAVE BEEN STRENGTHENED BY ANY SUPPORT HOLM'S TESTIMONY
MIGHT HAVE GIVEN TO THIS NOTION. 

THE TENNESSEE TRIAL COURT, HOWEVER, DID NOT CHARGE THAT THE JURY
WOULD CONVICT STUBBS OF FELONY MURDER AS A RESULT OF A DEATH OCCURRING
DURING A KIDNAPPING.  ITS CHARGE AUTHORIZED CONVICTION UPON A FINDING
OF PREMEDITATED MURDER, OR UPON A FINDING OF MURDER DURING THE
COMMISSION OF ROBBERY.  /4/  THE FAILURE TO ELICIT FROM HOLM HIS OWN
VIEWS AS TO WHETHER STUBBS HAD BECOME A GUEST IN THE HOLM CAR PRIOR TO
THE TIME THAT HE TURNED FROM THE FRONT SEAT, SHOT MR. HOLM, AND KILLED
MRS. HOLM-- HOWEVER INTERESTING THEY MIGHT HAVE BEEN TO HEAR-- COULD
NOT HAVE PREJUDICED STUBBS' CASE AS TO ANY ISSUE THAT THE JURY WAS
AUTHORIZED TO DELIBERATE UNDER THE TRIAL JUDGE'S CHARGE. 

SINCE THERE WAS AN ADEQUATE OPPORTUNITY TO CROSS-EXAMINE HOLM AT THE
FIRST TRIAL, AND COUNSEL FOR STUBBS AVAILED HIMSELF OF THAT
OPPORTUNITY, THE TRANSCRIPT OF HOLM'S TESTIMONY IN THE FIRST TRIAL BORE
SUFFICIENT "INDICIA OF RELIABILITY" AND AFFORDED "'THE TRIER OF FACT A
SATISFACTORY BASIS FOR EVALUATING THE TRUTH OF THE PRIOR STATEMENT,'"
DUTTON V. EVANS, 400 U.S.,AT 89.  THE WITNESS HOLM, CONSISTENTLY WITH
THE REQUIREMENT OF THE CONFRONTATION CLAUSE, COULD HAVE BEEN AND WAS
FOUND BY THE TRIAL COURT TO BE UNAVAILABLE AT THE TIME OF THE SECOND
TRIAL.  THERE WAS, THEREFORE, NO CONSTITUTIONAL ERROR IN PERMITTING HIS
PRIOR-RECORDED TESTIMONY TO BE READ TO THE JURY AT THAT TRIAL, AND NO
CONSTITUTIONAL INFIRMITY IN THE JUDGMENT OF CONVICTION RESULTING FROM
THAT TRIAL THAT WOULD PREVENT THE NEW YORK COURTS FROM CONSIDERING THAT
CONVICTION IN SENTENCING STUBBS AS A SECOND OFFENDER.  THE JUDGMENT OF
THE COURT OF APPEALS IS THEREFORE

          REVERSED. 

/1/  THE DISSENT STATES THAT THIS CASE IS CONTROLLED BY SEC V.
MEDICAL COMMITTEE, 404 U.S. 403 (1972).  IN THAT CASE, RESPONDENT
COMMITTED HAD REQUESTED DOW CHEMICAL TO PLACE THE COMMITTEE'S PROPOSED
RESOLUTION ON THE PROXY STATEMENT FOR THE ANNUAL MEETING OF DOW
CHEMICAL STOCKHOLDERS.  DOW CHEMICAL INITIALLY REFUSED THE REQUEST, AND
THE COMMITTEE THEREUPON INVOKED THE AID OF THE SEC TO BRING SUIT
AGAINST DOW CHEMICAL TO COMPEL INCLUSION OF THE PROPOSAL.  THE SEC
REFUSED TO BRING SUIT, AND THE COMMITTEE THEN SUCCEEDED IN HAVING THE
AGENCY'S REFUSAL SET ASIDE BY THE COURT OF APPEALS.  WHILE REVIEW OF
THIS LATTER ACTION WAS PENDING HERE, DOW CHEMICAL ACCEDED TO THE
COMMITTEE'S REQUEST.  THE COMMITTEE THEREBY ACCOMPLISHED THE PURPOSE
FOR WHICH IT SOUGHT ANCILLARY ASSISTANCE FROM THE SEC, NOT BECAUSE OF
COMPLIANCE BY THE SEC WITH THE JUDGMENT UNDER REVIEW, BUT BECAUSE OF
THE ACTION OF DOW CHEMICAL, WHICH WAS NOT REQUIRED TO DO ANYTHING BY
THAT JUDGMENT. 

THERE WOULD BE A ROUGH PARALLEL BETWEEN OUR CASE AND SEC V. MEDICAL
COMMITTEE IF, PENDING REVIEW HERE OF THE RULING OF THE COURT OF APPEALS
IN FAVOR OF STUBBS, THE GOVERNOR OF NEW YORK SHOULD PARDON STUBBS. 
BUT, ON THE FACTS WE HAVE BEFORE US NOW, THE MOOTNESS ISSUE IS
CONTROLLED BY BAKERY DRIVERS V. WAGSHAL, 333 U.S. 437 (1948), AND
DAKOTA COUNTY V. GLIDDEN, 113 U.S. 222 (1885), RATHER THAN BY SEC V.
MEDICAL COMMITTEE. 

/2/  STUBBS ARGUES THAT THE 1964 AMENDMENT TO 28 U.S.C. 1783,
AUTHORIZING A SUBPOENA TO BRING A WITNESS "BEFORE A PERSON OR BODY
DESIGNATED BY" THE DISTRICT COURT, SHEDS A DIFFERENT LIGHT ON THIS
CASE.  THAT AMENDMENT WAS NOT AVAILABLE TO THE TENNESSEE AUTHORITIES
FOR STUBBS' 1964 TRIAL, AND THEREFORE WE HAVE NO OCCASION TO DECIDE
WHETHER IT WOULD AFFORD ASSISTANCE TO STATE AUTHORITIES ON THE FACTS
REPRESENTED BY THIS CASE. 

/3/  THE SIGNIFICANT DIFFERENCE BETWEEN THE NATURE OF EXAMINATION AT
A PRELIMINARY HEARING AND AT A TRIAL ON THE MERITS IS DISCUSSED BOTH IN
BARBER V. PAGE, 390 U.S. 719 (1968), AND IN MR. JUSTICE BRENNAN'S
DISSENTING OPINION IN CALIFORNIA V. GREEN, 399 U.S. 149, 196-199
(1970). 

/4/  THIS WAS IN ACCORD WITH THE TENNESSEE FELONY-MURDER STATUTE
WHICH PROVIDES: 

"EVERY MURDER . . . COMMITTED IN THE PERPRETRATION OF, OR ATTEMPT TO
PERPETRATE, ANY MURDER IN THE FIRST DEGREE, ARSON, RAPE, ROBBERY,
BURGLARY, OR LARCENY, IS MURDER IN THE FIRST DEGREE."  TENN. CODE ANN.
SEC. 39-2402. 

MR. JUSTICE MARSHALL, DISSENTING. 

        I 

I WOULD DISMISS THE WRIT IN THIS CASE AS IMPROVIDENTLY GRANTED.  THE
QUESTION PRESENTED TO THE COURTS BELOW CONCERNS THE CONSTITUTIONAL
VALIDITY OF A 1964 TENNESSEE CONVICTION.  FOR, AFTER THE UNITED STATES
COURT OF APPEALS HELD THAT IT WAS CONSTITUTIONALLY DEFECTIVE, NEW YORK
SUBSTITUTED FOR THE TENNESSEE CONVICTION AN EARLIER TEXAS CONVICTION,
AND REINSTATED PRECISELY THE SAME ENHANCED SENTENCE IT HAD PREVIOUSLY
IMPOSED.  /1/ 

IN DETERMINING THAT THIS CASE IS NEVERTHELESS APPROPRIATE FOR
ADJUDICATION HERE, THE COURT SEEMS TO RELY ON TWO SEPARATE FACTORS. 
FIRST, IT REASONS THAT THE EVENT THAT SEEMS TO MOOT THE CASE-- THE
RESENTENCING-- WAS MERELY THE STATE'S OBEDIENCE TO THE ADVERSE JUDGMENT
BELOW, AND FOR THAT REASON CANNOT MOOT THE CONTROVERSY.  AND, SECOND,
IT REASONS THAT THE RESENTENCING MAY PROVE TO BE DEFECTIVE AS A MATTER
OF LAW, THAT NEW YORK MAY IN THE FUTURE WISH TO RELY ON THE TENNESSEE
CONVICTION AGAIN, IF THE TEXAS CONVICTION SHOULD PROVE TO HAVE DEFECTS
OF ITS OWN. 

THE FIRST PROPOSITION FALLS WIDE OF THE MARK IN THIS CASE.  IT IS
WELL ESTABLISHED THAT AN UNSUCCESSFUL LITIGANT DOES NOT MOOT HIS CASE
BY COMPLYING WITH AN UNFAVORABLE JUDGMENT PENDING THE DISPOSITION OF
HIS APPEAL.  THUS, A DEBTOR DOES NOT MOOT HIS CASE BY PAYING THE
JUDGMENT AGAINST HIM PENDENTE LITE.  DAKOTA COUNTY V. GLIDDEN, 113 U.S.
222 (1885).  AND IF A UNION IS ENJOINED FROM BOYCOTTING OR STRIKING AT
A PARTICULAR STORE, THE UNION DOES NOT MOOT THE CASE BY LIFTING THE
BOYCOTT OR STRIKE PENDENTE LITE.  BAKERY DRIVERS V. WAGSHAL, 333 U.S.
437 (1948).  BUT THAT PRINCIPLE DOES NOT PROTECT THE UNSUCCESSFUL
LITIGANT WHO GOES BEYOND WHAT IS REQUIRED OF HIM, AND OBTAINS RELIEF IN
SOME WAY NOT PROHIBITED BY THE JUDGMENT AGAINST HIM.  THUS, THE DEBTOR
DOES MOOT HIS CASE BY ENTERING INTO A COMPROMISE IN SETTLEMENT OF THE
DEBT.  DAKOTA COUNTY V. GLIDDEN, 113 U.S.,AT 224-227.  AND THE UNION
MIGHT WELL MOOT ITS CASE IF ALL THE STRIKING EMPLOYEES LEFT THE STORE
AND OBTAINED OTHER EMPLOYMENT ELSEWHERE. 

THIS CASE WOULD COME WITHIN THE PRINCIPLE OF DAKOTA COUNTY AND
BAKERY DRIVERS, IF NEW YORK HAD SIMPLY ABANDONED, TEMPORARILY, ITS
ATTEMPT TO IMPOSE AN ENHANCED RECIDIVIST SENTENCE, PENDING REVIEW OF
THE JUDGMENT BELOW.  BUT NEW YORK DID MORE THAN MERELY SUBMIT TO THE
DECISION BELOW; IT FOUND A COMPLETE SUBSTITUTE FOR THE RESULT IT HAD
SOUGHT IN THE COURT OF APPEALS, AND THE RESULT IT CONTINUES TO SEEK
HERE.  /2/  BY REVERSING THE JUDGMENT BELOW, THIS COURT GIVES NEW YORK
NO RELIEF IT HAS NOT ALREADY OBTAINED. 

THE COURT OFFERS A SECOND REASON TO DISREGARD THE RESENTENCING IN
THIS CASE, HOWEVER, AND THAT REASON IS PERHAPS INDEPENDENT OF THE
FIRST.  THE COURT ARGUES THAT THE TEXAS CONVICTION, AND THE
RESENTENCING BASED ON IT, MAY BE FOUND INVALID IN OTHER PROCEEDINGS, IN
WHICH CASE NEW YORK MAY WISH TO REVIVE ITS INTEREST IN THE TENNESSEE
CONVICTION.  THUS, THE ARGUMENT RESTS ON THE COURT'S ESTIMATE THAT THE
CONTROVERSY THAT GAVE RISE TO THIS LITIGATION HAS A SUBSTANTIAL
PROBABILITY OF RECURRING.  THAT ANALYSIS MIGHT IN MY VIEW CARRY
CONSIDERABLE WEIGHT, IF IT WERE APPLIED UNIFORMLY IN ALL CASES.  BUT
THIS COURT HAS REGULARLY REFUSED TO ADJUDICATE THE CLAIMS OF LITIGANTS
WHO ARGUE THAT ILLEGAL ACTION WILL PROBABLY HARM THEM IN THE FUTURE. 
E.G., SOCIALIST LABOR PARTY V. GILLIGAN, 406 U.S. 583 (1972); SEC V.
MEDICAL COMMITTEE, 404 U.S. 403 (1972).  /3/  MOREOVER, IN THIS CASE
THE COURT CAN FIND THAT THE CONTROVERSY WILL PROBABLY RECUR ONLY BY
PRESUMING THAT THE TEXAS CONVICTION IS PROBABLY INVALID.  SUCH A
PRESUMPTION FLIES IN THE FACE OF THE PRINCIPLE THAT STATE CONVICTIONS
ARE ORDINARILY PRESUMED VALID.  /4/  THE COURT BETRAYS A SURPRISING
LACK OF CONFIDENCE IN THE CRIMINAL PROCESSES OF OUR STATES, FOR WHICH
THERE IS NO WARRANT IN THIS RECORD. 

IN THESE CIRCUMSTANCES, THE POSSIBILITY THAT THIS CONTROVERSY WILL
BE REVIVED IS TOO REMOTE AND SPECULATIVE TO KEEP THE CASE ALIVE UNDER
ESTABLISHED PRECEDENTS.  IT IS CERTAINLY TOO REMOTE AND SPECULATIVE TO
WARRANT INVOKING THE DISCRETIONARY CERTIORARI JURISDICTION OF THIS
COURT. 

        II 

BECAUSE THE COURT REACHES OUT TO DECIDE THE MERITS OF THIS CASE, I
THINK IT APPROPRIATE TO STATE MY VIEWS ON THAT SUBJECT AS WELL. 

RESPONDENT WAS CONVICTED OF MURDER IN TENNESSEE AFTER A TRIAL IN
WHICH THE PRINCIPAL PROSECUTION WITNESS, ONE ALEX HOLM, DID NOT
APPEAR.  INSTEAD, HOLM'S TESTIMONY WAS INTRODUCED THROUGH A TRANSCRIPT
OF A PREVIOUS TRIAL ON THE SAME CHARGE.  THE STATE MADE ABSOLUTELY NO
EFFORT TO SECURE HOLM'S PRESENCE AT THE SECOND TRIAL, RELYING WHOLLY ON
THE CLAIM THAT HOLM WAS UNAVAILABLE BECAUSE HE HAD BECOME A RESIDENT OF
SWEDEN.  THE COURT TODAY CONCLUDES THAT THE STATE DID NOT THEREBY DENY
STUBBS HIS RIGHT "TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM,"
GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS.  TO REACH THAT
RESULT, THE COURT NECESSARILY DISTINGUISHES OUR HOLDING IN BARBER V.
PAGE, 390 U.S. 719 (1968), ON UNTENABLE GROUNDS, AND UTTERLY IGNORES
ITS RATIONALE. 

IN BARBER V. PAGE, THE PETITIONER HAD BEEN CONVICTED ON THE BASIS OF
TESTIMONY INTRODUCED THROUGH A TRANSCRIPT OF A PRELIMINARY HEARING. 
THE WITNESS IN QUESTION WAS INCARCERATED IN A FEDERAL PRISON.  WE HELD
THAT THE STATE COULD NOT, CONSISTENT WITH CONSTITUTIONAL REQUIREMENTS,
USE THAT TRANSCRIPT IN LIEU OF THE WITNESS HIMSELF UNLESS TWO
CONDITIONS WERE MET:  (1) THE WITNESS WAS SHOWN TO BE ACTUALLY
UNAVAILABLE TO TESTIFY AT TRIAL, AND (2) THE WITNESS HAD BEEN
ADEQUATELY CONFRONTED AND CROSS-EXAMINED AT THE PRIOR HEARING.  IN
BARBER WE CONCLUDED THAT NEITHER CONDITION HAD BEEN MET; THE STATE HAD
FAILED TO MAKE A GOOD-FAITH EFFORT TO SECURE THE PRESENCE OF THE
WITNESS AT TRIAL, AND HENCE IT COULD NOT BE SAID THAT THE WITNESS WAS
UNAVAILABLE; MOREOVER, THE PRELIMINARY HEARING DID NOT AFFORD AN
ADEQUATE PRETRIAL OPPORTUNITY FOR CONFRONTATION AND CROSS-EXAMINATION. 
THE COURT PURPORTS TO APPLY THE TWO-PART TEST OF BARBER TO THE FACTS
OF THIS CASE.  IT DEVOTES CONSIDERABLE SPACE TO THE SECOND PART OF THE
TEST, ANLAYZING THE OPPORTUNITY FOR CONFRONTATION AND CROSS-EXAMINATION
OF HOLM AT THE FIRST TRIAL OF STUBBS, AND CONCLUDING THAT THE
OPPORTUNITY THERE WAS SIGNIFICANTLY GREATER THAN AT THE PRELIMINARY
HEARING IN BARBER.  THE COURT'S DISTINCTION FOR THIS PURPOSE BETWEEN A
PRELIMINARY HEARING AND A PRIOR TRIAL IS TENABLE, IN MY VIEW, ALTHOUGH
ON THE PECULIAR FACTS OF THIS CASE THE COURT'S CONCLUSION IS SOMEWHAT
TROUBLESOME.  BUT THE COURT FAILS TOTALLY TO EXPLAIN HOW THE FIRST PART
OF THE BARBER TEST IS SATISFIED HERE.  ON THAT QUESTION, THE COURT HAS
ONLY THIS TO SAY:  "THE PREDICATE OF UNAVAILABILITY WAS SUFFICIENTLY
STRONGER HERE THAN IN BARBER THAT A FEDERAL HABEAS COURT WAS NOT
WARRANTED IN UPSETTING THE DETERMINATION OF THE STATE TRIAL COURT AS TO
HOLM'S UNAVAILABILITY." 

THE DIFFICULTY WITH THAT POSITION IS THAT THERE NEVER HAS BEEN ANY
FACTUAL INQUIRY RESULTING IN A DETERMINATION AS TO HOLM'S
UNAVAILABILITY.  RATHER, THE COURTS HAVE CONSISTENTLY PRESUMED HIS
UNAVAILABILITY FROM THE BARE FACT THAT HE LIVES IN SWEDEN.  THE
TENNESSEE SUPREME COURT THOUGHT IT WAS ENOUGH THAT HOLM WAS OUT OF THE
JURISDICTION OF THE UNITED STATES, BEYOND THE REACH OF COMPULSORY
PROCESS, STUBBS V. STATE, 216 TENN. 567, 574-575, 393 S.W.2D 150, 153
154 (1965), AS DID THE DISSENTING JUDGE IN THE UNITED STATES COURT OF
APPEALS, 442 F.2D 561, 565 (1971).  APPARENTLY THIS COURT TAKES THE
SAME VIEW.  BUT IN BARBER V. PAGE WE SQUARELY REJECTED ANY SUCH
PRESUMPTION OF UNAVAILABILITY.  IN THAT CASE, THE CLAIM WAS MADE THAT
THE COURT HAD NO POWER TO COMPEL THE ABSENT WITNESS TO APPEAR.  WE HELD
THAT NEVERTHELESS THE STATE WAS OBLIGED TO MAKE A GOOD-FAITH EFFORT TO
SECURE HIS APPEARANCE, FOR "'THE POSSIBILITY OF A REFUSAL IS NOT THE
EQUIVALENT OF ASKING AND RECEIVING A REBUFF.'"  390 U.S.,AT 724,
QUOTING THE DECISION BELOW, 381 F.2D 479, 481 (CA10 1966) (ALDRICH, J.,
DISSENTING).  AS WE SAID IN BARBER: 

"IN SHORT, A WITNESS IS NOT 'UNAVAILABLE' FOR PURPOSES OF THE
FOREGOING EXCEPTION TO THE CONFRONTATION REQUIREMENT UNLESS THE
PROSECUTORIAL AUTHORITIES HAVE MADE A GOOD-FAITH EFFORT TO OBTAIN HIS
PRESENCE AT TRIAL."  390 U.S.,AT 724-725. 

THE COURT SEEKS TO DISTINGUISH BARBER ON THE GROUND THAT IN THAT
CASE THE ABSENT WITNESS WAS A FEDERAL PRISONER, AND WHILE THE STATE HAD
NO POWER TO COMPEL HIS APPEARANCE, IT COULD AT LEAST HAVE SOUGHT THE
COOPERATION OF THE FEDERAL PRISON AUTHORITIES WHO DID HAVE SUCH POWER. 
HERE, ON THE OTHER HAND, THE ABSENT WITNESS WAS A RESIDENT OF A FOREIGN
NATION, AND HENCE IT IS ARGUED THAT EVEN FEDERAL AUTHORITIES WOULD HAVE
NO POWER TO HELP.  IN SUPPORT OF THAT ANALYSIS, THE COURT SEEMS TO
PLACE SUBSTANTIAL RELIANCE ON THE FACT THAT AT THE TIME OF STUBBS'
TRIAL, THE FEDERAL COURTS HAD STATUTORY POWER TO SUBPOENA AMERICAN
CITIZENS LIVING ABROAD, BUT THAT POWER WAS APPARENTLY AVAILABLE ONLY TO
COMPEL THEIR APPEARANCE BEFORE FEDERAL COURTS.  ACT OF JUNE 25, 1948,
C. 646, 62 STAT. 949, 28 U.S.C. 1783 (1958 ED.).  IF THE COURT'S
DECISION TODAY DOES IN FACT REST ON THE LACK OF FEDERAL POWER TO COMPEL
THE APPEARANCE OF HOLM AT A STATE TRIAL, THEN THE HOLDING IN THIS CASE
IS OF VERY LIMITED SIGNIFICANCE.  FOR LESS THAN THREE MONTHS AFTER THE
TRIAL OF STUBBS, CONGRESS AMENDED SEC. 1783 TO PROVIDE: 

"A COURT OF THE UNITED STATES MAY ORDER THE ISSUANCE OF A SUBPOENA
REQUIRING THE APPEARANCE AS A WITNESS BEFORE IT, OR BEFORE A PERSON OR
BODY DESIGNATED BY IT, OF A NATIONAL OR RESIDENT OF THE UNITED STATES
WHO IS IN A FOREIGN COUNTRY . . . . "  ACT OF OCT. 3, 1964, PUBL.  L.
NO. 88-619, SEC. 10(A), 78 STAT. 997.  SINCE OCTOBER 3, 1964, THEN, IT
APPEARS THAT THE FEDERAL COURTS HAVE HAD THE POWER TO ASSIST STATE
COURTS IN SECURING THE PRESENCE OF WITNESSES LIKE ALEX HOLM, AND HENCE
FOR TRIALS OCCURRING SINCE THAT DATE, BARBER WOULD SEEM TO CONTROL. 

I CANNOT AGREE, HOWEVER, THAT IF NEITHER STATE NOR FEDERAL AUTHORITIES
HAD THE POWER TO COMPEL HOLM'S APPEARANCE, THAT FACT RELIEVED THE STATE
OF ITS OBLIGATION TO MAKE A GOOD-FAITH EFFORT TO SECURE HIS PRESENCE. 
IT SIMPLY REDUCED THE LIKELIHOOD THAT ANY EFFORT WOULD SUCCEED.  THE
STATE'S OBLIGATION WOULD HARDLY BE FRAMED IN TERMS OF "GOOD-FAITH
EFFORT" IF THAT EFFORT WERE REQUIRED ONLY IN CIRCUMSTANCES WHERE
SUCCESS WAS GUARANTEED.  IF, AS THE COURT CONTENDS, IT IS MORE
DIFFICULT TO PRODUCE AT TRIAL A RESIDENT OF SWEDEN THAN A FEDERAL
PRISONER, THAT FACT MIGHT JUSTIFY A FAILURE TO PRODUCE THE WITNESS; IT
CANNOT JUSTIFY A FAILURE EVEN TO TRY.  AT A MINIMUM, THE STATE COULD
HAVE NOTIFIED MR. HOLM THAT THE TRIAL WAS SCHEDULED, AND INVITED HIM TO
COME AT HIS OWN EXPENSE.  BEYOND THAT, IT COULD HAVE OFFERED TO PAY HIS
EXPENSES.  FINALLY, IT COULD HAVE SOUGHT FEDERAL ASSISTANCE IN INVOKING
THE COOPERATION OF SWEDISH AUTHORITIES, AS A MATTER OF INTERNATIONAL
COMITY. 

AS IN BARBER, "SO FAR AS THIS RECORD REVEALS, THE SOLE REASON WHY
(THE WITNESS) WAS NOT PRESENT TO TESTIFY IN PERSON WAS BECAUSE THE
STATE DID NOT ATTEMPT TO SEEK HIS PRESENCE.  THE RIGHT OF CONFRONTATION
MAY NOT BE DISPENSED WITH SO LIGHTLY."  330 U.S.,AT 725. 

I RESPECTFULLY DISSENT. 

/1/  UNDER THE THEN-APPLICABLE NEW YORK SENTENCING STATUTE, FORMER
N.Y. PENAL LAW SEC. 1941, ONE PRIOR CONVICTION WAS SUFFICIENT TO
TRIGGER THE RECIDIVIST SENTENCING PROVISIONS, AND STUBBS RECEIVED THE
MAXIMUM AUTHORIZED RECIDIVIST SENTENCE.  NEW YORK HAS SUBSEQUENTLY
AMENDED ITS LAW TO INCREASE THE MAXIMUM RECIDIVIST SENTENCE, AND TO
PROVIDE THAT TWO PRIOR CONVICTIONS ARE NECESSARY TO TRIGGER THE
RECIDIVIST STATUTE, N.Y. PENAL LAW SEC. 70.10.  THE NEW PROVISIONS DO
NOT, HOWEVER, APPLY TO THIS CASE, BECAUSE THE UNDERLYING NEW YORK
CONVICTION HERE WAS OBTAINED BEFORE THE EFFECTIVE DATE OF THE NEW
STATUTE.  N.Y. PENAL LAW SEC. 5.05. 

/2/  THE COURT SEEKS TO DISTINGUISH SEC V. MEDICAL COMMITTEE, 404
U.S. 403 (1972), ON THE GROUND THAT IN THAT CASE THE ACTION RELIED ON
TO MOOT THE CASE WAS TAKEN BY A THIRD PARTY RATHER THAN BY A LITIGANT. 
I CAN SEE NO RELEVANT DIFFERENCE, HOWEVER, BETWEEN THE ACTION OF A
THIRD PARTY, AND THE ACTION OF A LITIGANT WHICH GOES BEYOND MERE
PENDENTE LITE COMPLIANCE WITH THE COURT ORDER, SO LONG AS THAT ACTION
GIVES THE LITIGANT THE RELIEF HE SEEKS.  IF BURNING DOWN A BUILDING
WILL MOOT A CASE, SURELY THAT IS SO WHETHER THE FIRE IS SET BY A
LITIGANT OR A LIGHTNING BOLT, THOUGH THE LITIGANT MAY, OF COURSE, BE
SUBJECT TO SANCTIONS QUITE APART FROM THE CASE HE HAS RENDERED MOOT. 

/3/  INDEED, THE CLAIM WE REJECTED IN SEC IS CLOSELY ANALOGOUS TO
THE CLAIM HERE.  IN EACH CASE, EVENTS SUBSEQUENT TO THE DECISION BELOW
REMOVED THE OCCASION FOR PRESENT CONFLICT BETWEEN THE PARTIES, BUT IT
WAS ALLEGED THAT WITHIN A SHORT TIME THE CONFLICT COULD BE EXPECTED TO
RECUR.  IN SEC, THE COURT FOUND THAT ALLEGATION TOO SPECULATIVE TO KEEP
THE CONTROVERSY ALIVE. 

/4/  EVEN WHEN A APPEAL IS PENDING, SEE, E.G., BLOCH V. UNITED
STATES, 226 F.2D 185, 188 (CA 9 1955), CERT. DENIED, 350 U.S. 948
(1956); UNITED STATES V. EMPIRE PACKING CO., 174 F.2D 16, 20 (CA7),
CERT. DENIED, 337 U.S. 959 (1949); PROPOSED RULES OF EVIDENCE FOR THE
UNITED STATES DISTRICT COURTS SEC. 609(E) (1972), AND ADVISORY
COMMITTEE'S NOTE. 

MR. JUSTICE DOUGLAS JOINS IN PART II OF THIS OPINION. 

MARIA L. MARCUS, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR PETITIONER.  WITH HER ON THE BRIEF WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL, AND STANLEY L. KANTOR, DEPUTY ASSISTANT ATTORNEY GENERAL. 

BRUCE K. CARPENTER (FOR COURT APPOINTMENT OF COUNSEL, SEE 406 U.S.
941) ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

MELVIN BRESSLER FILED A BRIEF FOR THE DISTRICT ATTORNEY OF MONROE
COUNTY, NEW YORK, AS AMICUS CURIAE. 
..END :



















COMBS V. UNITED STATES, 408 U.S. 224 


       COMBS V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 71-517.  ARGUED APRIL 11, 1972-- DECIDED JUNE 26, 1972 


PETITIONER WAS CONVICTED OF RECEIVING, POSSESSING, AND CONCEALING
WHISKEY KNOWN BY HIM TO HAVE BEEN STOLEN FROM AN INTERSTATE SHIPMENT. 
PRIOR TO HIS TRIAL, THE DISTRICT COURT HAD DENIED A MOTION TO SUPPRESS
THE WHISKEY FROM EVIDENCE ON THE CONTENTION THAT THERE HAD BEEN NO
SHOWING OF PROBABLE CAUSE TO SUPPORT ISSUANCE OF THE WARRANT
AUTHORIZING THE SEARCH FOR THE WHISKEY.  THE PETITIONER RAISED ONLY THE
VALIDITY OF THE WARRANT ON HIS APPEAL, BUT THE COURT OF APPEALS HELD
THAT HE LACKED STANDING TO CHALLENGE THE LEGALITY OF THE SEARCH, WHICH
HAD OCCURRED ON HIS FATHER'S FARM WHERE PETITIONER WAS NOT LIVING OR
PRESENT AT THE TIME OF THE SEARCH.  HELD:  SINCE THE GOVERNMENT NOW
SUGGESTS THAT THE WARRANT WAS INVALID, AND SINCE THE RECORD IS
INADEQUATE FOR A DETERMINATION OF WHETHER PETITIONER HAD AN INTEREST IN
THE SEARCHED PREMISES THAT WOULD AFFORD HIM STANDING UNDER MANCUSI V.
DEFORTE, 329 U.S. 364, TO CHALLENGE THE LEGALITY OF THE SEARCH, THE
JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE REMANDED FOR
FURTHER PROCEEDINGS. 

446 F.2D 515, VACATED AND REMANDED. 

PER CURIAM. 

WE GRANTED CERTIORARI ON CLAIMS THAT EVIDENCE INTRODUCED AGAINST
PETITIONER WAS OBTAINED THROUGH AN UNLAWFUL SEARCH THAT PETITIONER HAS
STANDING TO CHALLENGE.  THE GOVERNMENT NOW SUGGESTS THAT THE WARRANT
AUTHORIZING THE SEARCH WAS INVALID, BUT THAT FURTHER FACTUAL
DETERMINATIONS ARE REQUIRED TO RESOLVE THE QUESTION OF PETITIONER'S
STANDING TO CHALLENGE THE ADMISSION IN EVIDENCE OF THE ALLEGEDLY STOLEN
GOODS SEIZED BY GOVERNMENT AGENTS. 

PETITIONER AND HIS FATHER WERE CONVICTED AFTER A JOINT TRIAL /1/
UNDER AN INDICTMENT CHARGING THEM WITH HAVING VIOLATED 18 U.S.C. 659
/2/  BY RECEIVING, POSSESSING, AND CONCEALING 26 CASES OF TAX-PAID
WHISKEY KNOWN BY THEM TO HAVE BEEN STOLEN FROM AN INTERSTATE SHIPMENT. 
THE GOVERNMENT'S EVIDENCE AT TRIAL TENDED TO SHOW THAT PETITIONER
DELIVERED 40 CASES OF WHISKEY TO THE NEWPORT, KENTUCKY, HOME OF A MRS.
BALLARD, WHO HAD PREVIOUSLY EXPRESSED HER WILLINGNESS TO BUY IT.  THE
DAY AFTER THE DELIVERY, MRS. BALLARD, HAVING SOLD SOME OF THE WHISKEY
BUT HAVING THEREAFTER HEARD THAT IT WAS STOLEN PROPERTY, TELEPHONED
PETITIONER AND TOLD HIM TO REMOVE THE REMAINDER OF THE WHISKEY FROM HER
HOME.  PETITIONER AND ONE MARTIN THEN MOVED THE WHISKEY TO THE HOME OF
PETITIONER'S ESTRANGED WIFE; A FEW DAYS LATER, HOWEVER, PETITIONER
TELEPHONED MARTIN AND TOLD HIM THAT "THE HEAT WAS ON" AND THE WHISKEY
WOULD HAVE TO BE MOVED ONCE AGAIN.  THE TWO MEN THEN TRANSPORTED THE
WHISKEY TO HAZARD, KENTUCKY, WHERE THEY STORED IT IN A SHED ON A FARM
OWNED BY PETITIONER'S FATHER. 

SOMETIME LATER, MARTIN TOLD AN FBI AGENT OF THE STOLEN WHISKEY; WHEN
THE AGENT IN TURN PASSED THE INFORMATION ON TO THE KENTUCKY STATE
POLICE, THE LATTER OBTAINED A WARRANT AUTHORIZING A SEARCH FOR, AND
SEIZURE OF, THE WHISKEY AT THE PROPERTY OF PETITIONER'S FATHER.  THE
WARRANT WAS SUPPORTED BY AN AFFIDAVIT, WHICH THE GOVERNMENT NOW
SUGGESTS WAS INSUFFICIENT UNDER THE HOLDING OF AGUILAR V. TEXAS, 378
U.S. 108 (1964).  ARMED WITH THAT WARRANT, THE STATE POLICE WENT TO THE
FARM OWNED BY PETITIONER'S FATHER AND CONDUCTED A SEARCH, WHICH LED TO
THE DISCOVERY AND SEIZURE OF 26 CASES OF WHISKEY IDENTIFIED AS HAVING
BEEN STOLEN FROM A RAILROAD SHIPMENT INTENDED FOR DELIVERY TO THE
MICHIGAN LIQUOR CONTROL BOARD.  PETITIONER WAS NOT LIVING ON HIS
FATHER'S PROPERTY, NOR WAS HE PRESENT THERE WHEN THE SEARCH AND SEIZURE
TOOK PLACE. 

PRIOR TO TRIAL, THE DEFENDANTS JOINTLY MOVED THE DISTRICT COURT TO
SUPPRESS THE WHISKEY FROM EVIDENCE ON THE GROUND THAT THERE WAS NO
SHOWING OF PROBABLE CAUSE TO SUPPORT THE ISSUANCE OF THE WARRANT.  THE
DISTRICT COURT, FOLLOWING AN EVIDENTIARY HEARING, /3/  DENIED THE
MOTION ON THE MERITS, AND THE EVIDENCE WAS SUBSEQUENTLY INTRODUCED AT
TRIAL.  FOLLOWING THE CONVICTION OF PETITIONER AND HIS FATHER, ONLY THE
PETITIONER APPEALED, RAISING THE SINGLE ISSUE OF THE VALIDITY OF THE
WARRANT; THE COURT OF APPEALS DID NOT REACH THE MERITS OF HIS CLAIM
RESPECTING THE WARRANT, HOWEVER, HOLDING ONLY THAT HE LACKED STANDING
TO CHALLENGE THE LEGALITY OF THE SEARCH AND SEIZURE.  446 F.2D 515. 

IN CONCLUDING THAT PETITIONER LACKED SUCH STANDING, THE COURT OF
APPEALS NOTED, INTER ALIA, THAT HE HAD "ASSERTED NO POSSESSORY OR
PROPRIETARY CLAIM TO THE SEARCHED PREMISES" DURING THE COURSE OF THE
TRIAL.  446 F.2D, AT 516.  CLEARLY, HOWEVER, PETITIONER'S FAILURE TO
MAKE ANY SUCH ASSERTION, EITHER AT THE TRIAL OR AT THE PRETRIAL
SUPPRESSION HEARING, MAY WELL BE EXPLAINED BY THE RELATED FAILURE OF
THE GOVERNMENT TO MAKE ANY CHALLENGE IN THE DISTRICT COURT TO
PETITIONER'S STANDING TO RAISE HIS FOURTH AMENDMENT CLAIM.  IN ANY
EVENT, THE RECORD NOW BEFORE US IS VIRTUALLY BARREN OF THE FACTS
NECESSARY TO DETERMINE WHETHER PETITIONER HAD AN INTEREST IN CONNECTION
WITH THE SEARCHED PREMISES THAT GAVE RISE TO "A REASONABLE EXPECTATION
(ON HIS PART) OF FREEDOM FROM GOVERNMENTAL INTRUSION" UPON THOSE
PREMISES.  MANCUSI V. DEFORTE, 392 U.S. 364, 368 (1968).  /4/  IF
PETITIONER CAN ESTABLISH FACTS SHOWING SUCH AN INTEREST, HE WILL HAVE
DEMONSTRATED A BASIS FOR STANDING TO ATTACK THE SEARCH; RE-EXAMINATION
OF THE VALIDITY OF THE WARRANT IN LIGHT OF THE GOVERNMENT'S PRESENT
POSITION ON THAT ISSUE WOULD THEN BE APPROPRIATE TO RESOLVE THE
QUESTION WHETHER EVIDENCE OF THE SEIZED WHISKEY WAS PROPERLY INTRODUCED
AT PETITIONER'S TRIAL. 

SINCE THERE HAS NOT YET BEEN ANY FACTUAL DETERMINATION OF WHETHER
PETITIONER HAD AN INTEREST IN THE SEARCHED PREMISES THAT WAS
PROTECTIBLE UNDER THE DOCTRINE OF MANCUSI V. DEFORTE, WE VACATE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND WITH DIRECTIONS THAT THE
CASE BE SENT BACK TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

              VACATED AND REMANDED. 

/1/  BOTH MEN WERE CONVICTED, BUT PETITIONER'S FATHER DID NOT
APPEAL; ANOTHER CODEFENDANT AT THE TRIAL WAS PETITIONER'S BROTHER, WHO
WAS ACQUITTED ON A RELATED CHARGE. 

/2/  SECTION 659 PROVIDES AS FOLLOWS: 

"WHOEVER . . . UNLAWFULLY TAKES, CARRIES AWAY, OR CONCEALS, OR BY
FRAUD OR DECEPTION OBTAINS FROM ANY . . . RAILROAD CAR . . . OR OTHER
VEHICLE, OR FROM ANY . . . STATION HOUSE, PLATFORM OR DEPOT . . . WITH
INTENT TO CONVERT TO HIS OWN USE ANY GOODS OR CHATTELS MOVING AS OR
WHICH ARE A PART OF . . . AN INTERSTATE OR FOREIGN SHIPMENT . . .; OR 

"WHOEVER BUYS OR RECEIVES OR HAS IN HIS POSSESSION ANY SUCH GOODS OR
CHATTELS, KNOWING THE SAME TO HAVE BEEN EMBEZZLED OR STOLEN; . . .

        .          .          .          . 

"SHALL . . . BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE
THAN TEN YEARS, OR BOTH . . . . " 

/3/  NO EVIDENCE RELATING TO PETITIONER'S STANDING WAS INTRODUCED AT
THE HEARING. 

/4/ THE COURT IN MANCUSI RELIED UPON JONES V. UNITED STATES, 362
U.S. 257 (1960), AS HAVING DONE AWAY WITH "THE REQUIREMENT THAT TO
ESTABLISH STANDING ONE MUST SHOW LEGAL POSSESSION OR OWNERSHIP OF THE
SEARCHED PREMISES."  392 U.S.,AT 369.  IN JONES, THE COURT HELD THAT
THE PETITIONER THEN BEFORE IT HAD STANDING AND ENUNCIATED TWO RULES AS
ALTERNATIVE GROUNDS FOR ITS DECISION.  FIRST, THE JONES COURT RULED
THAT THE "POSSESSION ON THE BASIS OF WHICH (AN ACCUSED) IS TO BE . . .
CONVICTED SUFFICES TO GIVE HIM STANDING UNDER ANY FAIR AND RATIONAL
CONCEPTION OF THE REQUIREMENTS OF RULE 51(E)," FED. RULE CRIM. PROC.;
SECOND, THE COURT RULED THAT "ANYONE LEGITIMATELY ON PREMISES WHERE A
SEARCH OCCURS: HAS STANDING TO CHALLENGE THE LEGALITY OF THAT SEARCH. 
362 U.S.,AT 264, 267.  THE GOVERNMENT HAS URGED THAT WE TAKE THE
OPPORTUNITY, SAID TO BE PRESENTED BY THE INSTANT CASE, TO RE-EXAMINE
THE FIRST ALTERNATIVE HOLDING OF JONES.  EVEN ASSUMING WE WERE DISPOSED
TO DO SO, THE COURT OF APPEALS DID NOT, IN THE OPINION IT FILED IN THIS
CASE, DEAL WITH THE QUESTION WHETHER THE NATURE OF THE CHARGE AGAINST
PETITIONER BROUGHT HIS CASE WITHIN THE COVERAGE OF THE FIRST ASPECT OF
THE JONES HOLDING, AND WE DECLINE TO REACH OR CONSIDER ISSUES NOT YET
PASSED ON BY THAT COURT. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

JAMES N. PERRY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF
WAS WILLIAM F. HOPKINS. 

WILLIAM BRADFORD REYNOLDS ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL PETERSEN, BEATRICE ROSENBERG, AND ROGER A. PAULEY. 
..END :






















KOIS V. WISCONSIN, 408 U.S. 229 


       KOIS V. WISCONSIN

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           WISCONSIN

        NO. 71-5625.  DECIDED JUNE 26, 1972 


PETITIONER WAS CONVICTED UNDER AN OBSCENITY STATUTE FOR PUBLISHING IN
HIS UNDERGROUND NEWSPAPER PICTURES OF NUDES AND A SEX POEM.  THE STATE
SUPREME COURT UPHELD THE CONVICTION AS NOT VIOLATIVE OF THE FOURTEENTH
AMENDMENT.  HELD:  IN THE CONTEXT IN WHICH THEY APPEARED, THE
PHOTOGRAPHS WERE RATIONALLY RELATED TO A NEWS ARTICLE, IN CONJUNCTION
WITH WHICH THEY APPEARED, AND WERE ENTITLED TO FOURTEENTH AMENDMENT
PROTECTION.  IN VIEW OF THE POEM'S CONTENT AND PLACEMENT WITH OTHER
POEMS INSIDE THE NEWSPAPER, ITS DOMINANT THEME CANNOT BE SAID TO APPEAL
TO PRURIENT INTEREST.  ROTH V. UNITED STATES, 354 U.S. 476. 

CERTIORARI GRANTED; 51 WIS.2D 668, 188 N.W.2D 467, REVERSED. 

PER CURIAM. 

PETITIONER WAS CONVICTED IN THE STATE TRIAL COURT OF VIOLATING A
WISCONSIN STATUTE PROHIBITING THE DISSEMINATION OF "LEWD, OBSCENE OR
INDECENT WRITTEN MATTER, PICTURE, SOUND RECORDING, OR FILM."  WIS.
STAT. SEC. 944.21(1)(A) (1969).  HE WAS SENTENCED TO CONSECUTIVE ONE
YEAR TERMS IN THE GREEN BAY REFORMATORY AND FINED $1,000 ON EACH OF TWO
COUNTS.  THE SUPREME COURT OF WISCONSIN UPHELD HIS CONVICTION AGAINST
THE CONTENTION THAT HE HAD BEEN DEPRIVED OF FREEDOM OF THE PRESS IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  51 WIS.2D 668, 188 N.W.2D 467. 

PETITIONER WAS THE PUBLISHER OF AN UNDERGROUND NEWSPAPER CALLED
KALEIDOSCOPE.  IN AN ISSUE PUBLISHED IN MAY 1968, THAT NEWSPAPER
CARRIED A STORY ENTITLED "THE ONE HUNDRED THOUSAND DOLLAR PHOTOS" ON AN
INTERIOR PAGE.  THE STORY ITSELF WAS AN ACCOUNT OF THE ARREST OF ONE OF
KALEIDOSCOPE'S PHOTOGRAPHERS ON A CHARGE OF POSSESSION OF OBSCENE
MATERIAL.  TWO RELATIVELY SMALL PICTURES, SHOWING A NUDE MAN AND NUDE
WOMAN EMBRACING IN A SITTING POSITION, ACCOMPANIED THE ARTICLE AND WERE
DESCRIBED IN THE ARTICLE AS "SIMILAR" TO THOSE SEIZED FROM THE
PHOTOGRAPHER.  THE ARTICLE SAID THAT THE PHOTOGRAPHER, WHILE WAITING IN
THE DISTRICT ATTORNEY'S OFFICE, HAD HEARD THAT BAIL MIGHT BE SET AT
$100,000.  THE ARTICLE WENT ON TO SAY THAT BAIL HAD IN FACT BEEN SET
ORIGINALLY AT $100, THEN RAISED TO $250, AND THAT LATER THE
PHOTOGRAPHER HAD BEEN RELEASED ON HIS OWN RECOGNIZANCE.  THE ARTICLE
PURPORTED TO DETAIL POLICE TACTICS THAT WERE DESCRIBED AS AN EFFORT TO
"HARASS" KALEIDOSCOPE AND ITS STAFF. 

ROTH V. UNITED STATES, 354 U.S. 476 (1957), HELD THAT OBSCENITY WAS
NOT PROTECTED UNDER THE FIRST OR FOURTEENTH AMENDMENTS.  MATERIAL MAY
BE CONSIDERED OBSCENE WHEN "TO THE AVERAGE PERSON, APPLYING
CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME OF THE MATERIAL
TAKEN AS A WHOLE APPEALS TO THE PRURIENT INTEREST."  354 U.S.,AT 489. 
IN ENUNCIATING THIS TEST, THE COURT IN ROTH QUOTED FROM THORNHILL V.
ALABAMA, 310 U.S. 88, 101-102: 

 "THE FREEDOM OF SPEECH AND OF THE PRESS GUARANTEED BY THE

  CONSTITUTION EMBRACES AT THE LEAST THE LIBERTY TO DISCUSS

  PUBLICLY AND TRUTHFULLY ALL MATTERS OF PUBLIC CONCERN WITHOUT

  PREVIOUS RESTRAINT OR FEAR OF SUBSEQUENT PUNISHMENT.  THE

  EXIGENCIES OF THE COLONIAL PERIOD AND THE EFFORTS TO SECURE

  FREEDOM FROM OPPRESSIVE ADMINISTRATION DEVELOPED A BROADENED

  CONCEPTION OF THESE LIBERTIES AS ADEQUATE TO SUPPLY THE PUBLIC

  NEED FOR INFORMATION AND EDUCATION WITH RESPECT TO THE

  SIGNIFICANT ISSUES OF THE TIMES.  . . . " 

WE DO NOT THINK IT CAN FAIRLY BE SAID, EITHER CONSIDERING THE
ARTICLE AS IT APPEARS OR THE RECORD BEFORE THE STATE COURT, THAT THE
ARTICLE WAS A MERE VEHICLE FOR THE PUBLICATION OF THE PICTURES.  A
QUOTATION FROM VOLTAIRE IN THE FLYLEAF OF A BOOK WILL NOT
CONSTITUTIONALLY REDEEM AN OTHERWISE OBSCENE PUBLICATION, BUT IF THESE
PICTURES WERE INDEED SIMILAR TO THE ONE SEIZED-- AND WE DO NOT
UNDERSTAND THE STATE TO CONTEND DIFFERENTLY-- THEY ARE RELEVANT TO THE
THEME OF THE ARTICLE.  WE FIND IT UNNECESSARY TO CONSIDER WHETHER THE
STATE COULD CONSTITUTIONALLY PROHIBIT THE DISSEMINATION OF THE PICTURES
BY THEMSELVES, BECAUSE IN THE CONTEXT IN WHICH THEY APPEARED IN THE
NEWSPAPER THEY WERE RATIONALLY RELATED TO AN ARTICLE THAT ITSELF WAS
CLEARLY ENTITLED TO THE PROTECTION OF THE FOURTEENTH AMENDMENT. 
THORNHILL V. ALABAMA, SUPRA.  THE MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND THE PETITION FOR WRIT OF CERTIORARI ARE GRANTED.  THE
CONVICTION ON COUNT ONE MUST THEREFORE BE REVERSED. 

IN ITS AUGUST 1968 ISSUE, KALEIDOSCOPE PUBLISHED A TWO-PAGE SPREAD
CONSISTING OF 11 POEMS, ONE OF WHICH WAS ENTITLED "SEX POEM."  THE
SECOND COUNT OF PETITIONER'S CONVICTION WAS FOR THE DISSEMINATION OF
THE NEWSPAPER CONTAINING THIS POEM.  THE POEM IS AN UNDISGUISEDLY
FRANK, PLAY-BY-PLAY ACCOUNT OF THE AUTHOR'S RECOLLECTION OF SEXUAL
INTERCOURSE.  BUT, AS THE ROTH COURT EMPHASIZED, "SEX AND OBSCENITY ARE
NOT SYNONYMOUS.  . . . THE PORTRAYAL OF SEX, E.G., IN ART, LITERATURE
AND SCIENTIFIC WORKS, IS NOT ITSELF SUFFICIENT REASON TO DENY MATERIAL
THE CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH AND PRESS."  354
U.S.,AT 487.  A REVIEWING COURT MUST, OF NECESSITY, LOOK AT THE CONTEXT
OF THE MATERIAL, AS WELL AS ITS CONTENT. 

IN THIS CASE, CONSIDERING THE POEM'S CONTENT AND ITS PLACEMENT AMID
A SELECTION OF POEMS IN THE INTERIOR OF A NEWSPAPER, WE BELIEVE THAT IT
BEARS SOME OF THE EARMARKS OF AN ATTEMPT AT SERIOUS ART.  WHILE SUCH
EARMARKS ARE NOT INEVITABLY A GUARANTEE AGAINST A FINDING OF OBSCENITY,
AND WHILE IN THIS CASE MANY WOULD CONCLUDE THAT THE AUTHOR'S REACH
EXCEEDED HIS GRASP, THIS ELEMENT MUST BE CONSIDERED IN ASSESSING
WHETHER OR NOT THE "DOMINANT" THEME OF THE MATERIAL APPEALS TO PRURIENT
INTEREST.  WHILE "CONTEMPORARY COMMUNITY STANDARDS," ROTH V. UNITED
STATES, 354 U.S.,AT 489, MUST LEAVE ROOM FOR SOME LATITUDE OF JUDGMENT,
AND WHILE THERE IS AN UNDENIABLY SUBJECTIVE ELEMENT IN THE TEST AS A
WHOLE, THE "DOMINANCE" OF THE THEME IS A QUESTION OF CONSTITUTIONAL
FACT.  GIVING DUE WEIGHT AND RESPECT TO THE CONCLUSIONS OF THE TRIAL
COURT AND TO THE SUPREME COURT OF WISCONSIN, WE DO NOT BELIEVE THAT IT
CAN BE SAID THAT THE DOMINANT THEME OF THIS POEM APPEALS TO PRURIENT
INTEREST.  THE JUDGMENT ON THE SECOND COUNT, THEREFORE, MUST ALSO BE
REVERSED. 

              REVERSED. 

MR. JUSTICE STEWART CONCURS IN THE JUDGMENT. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE JUDGMENT. 

I CONCUR IN THE JUDGMENT BECAUSE NEITHER LOGIC, HISTORY, NOR THE
PLAIN MEANING OF THE ENGLISH LANGUAGE WILL SUPPORT THE OBSCENITY
EXCEPTION THIS COURT HAS ENGRAFTED ONTO THE FIRST AMENDMENT. 

THIS CASE, MOREOVER, IS FURTHER TESTIMONY TO THE MORASS IN WHICH
THIS COURT HAS PLACED ITSELF IN THE AREA OF OBSCENITY.  MEN ARE SENT TO
PRISON UNDER DEFINITIONS WHICH THEY CANNOT UNDERSTAND, AND ON WHICH
LOWER COURTS AND MEMBERS OF THIS COURT CANNOT AGREE.  HERE, THE COURT
IS FORCED TO EXAMINE THE THEMATIC CONTENT OF THE TWO NEWSPAPERS FOR THE
PUBLICATION OF WHICH PETITIONER WAS PROSECUTED IN ORDER TO HOLD THAT
THEY ARE CONSTITUTIONALLY PROTECTED.  HIGHLY SUBJECTIVE INQUIRIES SUCH
AS THIS DO NOT LEND THEMSELVES TO A WORKABLE OR PREDICTABLE RULE OF
LAW, NOR SHOULD THEY BE THE BASIS OF FINES OR IMPRISONMENT. 

IN THIS CASE, THE VAGUE UMBRELLA OF OBSCENITY LAWS WAS USED IN AN
ATTEMPT TO RUN A RADICAL NEWSPAPER OUT OF BUSINESS AND TO IMPOSE A TWO
YEAR SENTENCE AND A $2,000 FINE UPON ITS PUBLISHER.  IF OBSCENITY LAWS
CONTINUE IN THIS UNEVEN AND UNCERTAIN ENFORCEMENT, THEN THE VEHICLE HAS
BEEN FOUND FOR THE SUPPRESSION OF ANY UNPOPULAR TRACT.  THE GUARANTEE
OF FREE EXPRESSION WILL THUS BE DILUTED AND IN ITS STEAD PUBLIC
DISCOURSE WILL ONLY EMBRACE THAT WHICH HAS THE APPROVAL OF FIVE MEMBERS
OF THIS COURT. 

THE PROSPECT IS NOT IMAGINARY NOW THAT THE BILL OF RIGHTS,
APPLICABLE TO THE STATES BY REASON OF THE FOURTEENTH AMENDMENT, IS
COMING TO BE A "WATERED DOWN" VERSION, MEANING NOT WHAT IT SAYS BUT
ONLY WHAT A MAJORITY OF THIS COURT THINKS FIT AND PROPER. 
..END :








BEECHER V. ALABAMA, 408 U.S. 234 


       BEECHER V. ALABAMA

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           ALABAMA

        NO. 71-6497.  DECIDED JUNE 26, 1972 


AFTER THIS COURT REVERSED PETITIONER'S 1964 MURDER CONVICTION ON THE
GROUND THAT WRITTEN CONFESSIONS USED AS EVIDENCE IN HIS TRIAL WERE
INVOLUNTARY AS THE PRODUCTS OF GROSS COERCION AND THUS VIOLATED DUE
PROCESS, PETITIONER WAS REINDICTED, RETRIED, AND CONVICTED AFTER AN
ORAL CONFESSION HAD BEEN ADMITTED INTO EVIDENCE.  THAT CONFESSION HAD
BEEN MADE TO A HOSPITAL DOCTOR ONE HOUR AFTER PETITIONER'S ARREST WHILE
HE WAS IN EXTREME PAIN FROM A GUNSHOT WOUND AND UNDER THE INFLUENCE OF
MORPHINE.  HELD:  PETITIONER'S ORAL CONFESSION WAS ALSO INVALID, HAVING
BEEN THE PRODUCT OF GROSS COERCION AND PART OF THE SAME "STREAM OF
EVENTS" THAT NECESSITATED INVALIDATION OF THE WRITTEN CONFESSIONS. 

CERTIORARI GRANTED; 288 ALA. 1, 256 SO.2D 154, REVERSED. 

PER CURIAM. 

IN 1964 THE PETITIONER WAS TRIED AND CONVICTED IN AN ALABAMA STATE
COURT FOR FIRST-DEGREE MURDER.  HE WAS SENTENCED TO DEATH.  THE
CONVICTION WAS BASED IN LARGE PART ON WRITTEN CONFESSIONS THAT HE HAD
SIGNED FIVE DAYS AFTER HIS ARREST.  THE PETITIONER OBJECTED TO THE
INTRODUCTION AT TRIAL OF THESE CONFESSIONS.  BUT THE TRIAL COURT AND
THE ALABAMA SUPREME COURT HELD THAT THE CONFESSIONS WERE MADE
VOLUNTARILY AND WERE PROPERLY RECEIVED INTO EVIDENCE. 

IN 1967 THE COURT SUMMARILY REVERSED THAT JUDGMENT OF THE ALABAMA
SUPREME COURT.  BEECHER V. ALABAMA, 389 U.S. 35.  WE SAID: 

     "THE UNCONTRADICTED FACTS OF RECORD ARE THESE.  TENNESSEE

  POLICE OFFICERS SAW THE PETITIONER AS HE FLED INTO AN OPEN FIELD

  AND FIRED A BULLET INTO HIS RIGHT LEG.  HE FELL, AND THE LOCAL

CHIEF OF POLICE PRESSED A LOADED GUN TO HIS FACE WHILE ANOTHER

  OFFICER POINTED A RIFLE AGAINST THE SIDE OF HIS HEAD.  THE POLICE

  CHIEF ASKED HIM WHETHER HE HAD RAPED AND KILLED A WHITE WOMAN. 

  WHEN HE SAID THAT HE HAD NOT, THE CHIEF CALLED HIM A LIAR AND

  SAID, 'IF YOU DON'T TELL THE TRUTH I AM GOING TO KILL YOU.'  THE

  OTHER OFFICER THEN FIRED HIS RIFLE NEXT TO THE PETITIONER'S EAR,

  AND THE PETITIONER IMMEDIATELY CONFESSED.  LATER THE SAME DAY HE

  RECEIVED AN INJECTION TO EASE THE PAIN IN HIS LEG.  HE SIGNED

SOMETHING THE CHIEF OF POLICE DESCRIBED AS 'EXTRADITION PAPERS'

  AFTER THE OFFICERS TOLD HIM THAT 'IT WOULD BE BEST . . . TO SIGN

  THE PAPERS BEFORE THE GANG OF PEOPLE CAME THERE AND KILLED' HIM. 

  HE WAS THEN TAKEN BY AMBULANCE FROM TENNESSEE TO KILBY PRISON IN

  MONTGOMERY, ALABAMA.  BY JUNE 22, THE PETITIONER'S RIGHT LEG,

  WHICH WAS LATER AMPUTATED, HAD BECOME SO SWOLLEN AND HIS WOUND SO

  PAINFUL THAT HE REQUIRED AN INJECTION OF MORPHINE EVERY FOUR

  HOURS.  LESS THAN AN HOUR AFTER ONE OF THESE INJECTIONS, TWO

ALABAMA INVESTIGATORS VISITED HIM IN THE PRISON HOSPITAL.  THE

  MEDICAL ASSISTANT IN CHARGE TOLD THE PETITIONER TO 'COOPERATE'

  AND, IN THE PETITIONER'S PRESENCE, HE ASKED THE INVESTIGATORS TO

  INFORM HIM IF THE PETITIONER DID NOT 'TELL THEM WHAT THEY WANTED

  TO KNOW.'  THE MEDICAL ASSISTANT THEN LEFT THE PETITIONER ALONE

  WITH THE STATE'S INVESTIGATORS.  IN THE COURSE OF A 90-MINUTE

  'CONVERSATION,' THE INVESTIGATORS PREPARED TWO DETAILED

  STATEMENTS SIMILAR TO THE CONFESSION THE PETITIONER HAD GIVEN

  FIVE DAYS EARLIER AT GUNPOINT IN TENNESSEE.  STILL IN A 'KIND OF

SLUMBER' FROM HIS LAST MORPHINE INJECTION, FEVERISH, AND IN

 INTENSE PAID, THE PETITIONER SIGNED THE WRITTEN CONFESSIONS THUS

  PREPARED FOR HIM"  ID., AT 36-37. 

WE WERE LED TO "THE INESCAPABLE CONCLUSION THAT THE PETITIONER'S
CONFESSIONS WERE INVOLUNTARY."  ID., AT 38.  FOR "(THE PETITIONER,
ALREADY WOUNDED BY THE POLICE, WAS ORDERED AT GUNPOINT TO SPEAK HIS
GUILT OR BE KILLED.  FROM THAT TIME UNTIL HE WAS DIRECTED FIVE DAYS
LATER TO TELL ALABAMA INVESTIGATORS 'WHAT THEY WANTED TO KNOW,' THERE
WAS 'NO BREAK IN THE STREAM OF EVENTS,' CLEWIS V. TEXAS, 386 U.S. 707,
710.  FOR HE WAS THEN STILL IN PAIN, UNDER THE INFLUENCE OF DRUGS, AND
AT THE COMPLETE MERCY OF THE PRISON HOSPITAL AUTHORITIES."  IBID.
BECAUSE THE CONFESSIONS "WERE THE PRODUCT OF GROSS COERCION," WE HELD
THAT THEIR USE AT THE PETITIONER'S TRIAL VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  IBID. 

ONLY THREE MONTHS AFTER THIS COURT'S DECISION, THE PETITIONER WAS
REINDICTED AND RETRIED FOR THE SAME CRIME.  AGAIN, A CONFESSION WAS
INTRODUCED IN EVIDENCE.  AGAIN, IT WAS A CONFESSION MADE BY THE
PETITIONER SHORTLY AFTER HE HAD BEEN SHOT AND ARRESTED AND SHORTLY
AFTER HE HAD BEEN GIVEN A LARGE DOSE OF MORPHINE.  AGAIN, THE
PETITIONER WAS CONVICTED AND SENTENCED TO DEATH. 

THE CONFESSION USED AT THE SECOND TRIAL WAS NOT EXACTLY THE SAME AS
THE ONES THAT HAD BEEN USED AGAINST THE PETITIONER AT HIS FIRST TRIAL. 
IT WAS NOT ONE OF THE WRITTEN CONFESSIONS MADE BY THE PETITIONER IN AN
ALABAMA HOSPITAL FIVE DAYS AFTER HIS ARREST.  INSTEAD, IT WAS AN ORAL
CONFESSION THAT THE PETITIONER HAD MADE IN A TENNESSEE HOSPITAL ONLY
ONE HOUR AFTER HIS ARREST. 

ONE HOUR AFTER THE ARREST, IN EXTREME PAIN FROM THE GUNSHOT THAT HAD
BLOWN MOST OF THE BONE OUT OF ONE LEG, THE PETITIONER WAS BROUGHT BY
POLICE TO A TENNESSEE HOSPITAL.  THERE, A DOCTOR GAVE HIM TWO LARGE
INJECTIONS OF MORPHINE.  THE PETITIONER TESTIFIED THAT THE MORPHINE
"KINDA MADE ME FEEL LIKE I WANTED TO LOVE SOMEBODY; TOOK THE PAIN AWAY;
MADE ME FEEL RELAXED."  FROM THEN ON, THE PETITIONER SAID, HE COULD
REMEMBER NOTHING.  BUT THE DOCTOR TESTIFIED AT TRIAL THAT HE HAD ASKED
THE PETITIONER "WHY HE DID IT (THE CRIME)."  ACCORDING TO THE DOCTOR,
THE PETITIONER THEN MADE AN ORAL CONFESSION.  ALTHOUGH POLICE WERE IN
THE AREA GUARDING THE PETITIONER, THE CONFESSION WAS MADE ONLY TO THE
DOCTOR. 

THE ALABAMA SUPREME COURT HELD THAT THIS ORAL CONFESSION WAS MADE
VOLUNTARILY AND WAS ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER. 
BEECHER V. STATE, 288 ALA. 1, 256 SO.2D 154.  WE DO NOT AGREE.  WE HELD
FIVE YEARS AGO THAT THE CONFESSION ELICITED FROM THE PETITIONER AT THE
SCENE OF HIS ARREST WAS PLAINLY INVOLUNTARY.  /1/  WE ALSO HELD THAT
HIS WRITTEN CONFESSIONS FIVE DAYS LATER, WHILE IN CUSTODY AND UNDER THE
INFLUENCE OF MORPHINE, WERE PART OF THE "STREAM OF EVENTS" BEGINNING
WITH THE ARREST AND WERE INFECTED WITH "GROSS COERCION."  389 U.S.,AT
38.  THE ORAL CONFESSION, MADE ONLY AN HOUR AFTER THE ARREST AND UPON
WHICH THE STATE NOW RELIES, WAS SURELY A PART OF THE SAME "STREAM OF
EVENTS." 

WE HOLD NOW-- AS WE HELD BEFORE-- THAT A "REALISTIC APPRAISAL OF THE
CIRCUMSTANCES OF THIS CASE COMPELS FOR CONCLUSION THAT THIS
PETITIONER'S (CONFESSION WAS) THE PRODUCT OF GROSS COERCION.  UNDER THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, NO CONVICTION TAINTED
BY A CONFESSION SO OBTAINED CAN STAND."  IBID. 

ACCORDINGLY, THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND
THE PETITION FOR CERTIORARI ARE GRANTED.  THE JUDGMENT IS

              REVERSED. 

/1/  ALTHOUGH AT THE SECOND TRIAL THE CHIEF OF POLICE WHO ARRESTED
THE PETITIONER DENIED HAVING MADE AN EXPLICIT THREAT TO KILL HIM IF HE
DID NOT CONFESS AT THAT TIME, THE FACT THAT THE PETITIONER WAS
SURROUNDED BY A VERY ANGRY MOB AND THAT POLICE WERE HOLDING GUNS ON HIM
AND EVEN FIRED ONE SHOT BY HIS HEAD IS ENOUGH TO SUPPORT OUR ORIGINAL
CONCLUSION AS TO THE GROSSLY COERCION NATURE OF THE POLICE QUESTIONING
AT THE SCENE OF THE ARREST. 
..END :

















MILTON V. WAINWRIGHT, 407 U.S. 371 


       MILTON V. WAINWRIGHT, CORRECTIONS DIRECTOR

  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 70-5012.  ARGUED JANUARY 12, 1972-- DECIDED JUNE 22,

           1972 


PETITIONER IN THIS HABEAS CORPUS PROCEEDING CHALLENGED ON FIFTH AND
SIXTH AMENDMENT GROUNDS THE INTRODUCTION AT HIS TRIAL OF A POST
INDICTMENT, PRETRIAL CONFESSION HE MADE TO A POLICE OFFICER POSING AS A
FELLOW PRISONER.  THE DENIAL OF HABEAS CORPUS RELIEF IS AFFIRMED
WITHOUT REACHING THE MERITS OF PETITIONER'S CLAIMS; ANY POSSIBLE ERROR
IN THE ADMISSION OF THE CHALLENGED CONFESSION WAS HARMLESS BEYOND A
REASONABLE DOUBT IN LIGHT OF THREE OTHER UNCHALLENGED CONFESSIONS AND
STRONG CORROBORATIVE EVIDENCE OF PETITIONER'S GUILT.  HARRINGTON V.
CALIFORNIA, 395 U.S. 250; CHAPMAN V. CALIFORNIA, 386 U.S. 18.  PP. 372
378. 

428 F.2D 463, AFFIRMED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  STEWART, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND MARSHALL, JJ.,
JOINED, POST, P. 378. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT OF CERTIORARI ON CLAIMS UNDER THE FIFTH AND
SIXTH AMENDMENTS ARISING OUT OF THE USE OF ONE OF A NUMBER OF
CONFESSIONS, ALL OF WHICH WERE RECEIVED IN EVIDENCE OVER OBJECTION. 
THE CONFESSION CHALLENGED HERE WAS OBTAINED BY A POLICE OFFICER POSING
AS AN ACCUSED PERSON CONFINED IN THE CELL WITH PETITIONER. 

PETITIONER MILTON IS PRESENTLY SERVING A LIFE SENTENCE IMPOSED IN
1958 UPON HIS CONVICTION OF FIRST-DEGREE MURDER FOLLOWING A JURY TRIAL
IN DADE COUNTY, FLORIDA.  DURING THAT TRIAL, THE STATE CALLED AS A
WITNESS A POLICE OFFICER WHO, AT A TIME WHEN PETITIONER HAD ALREADY
BEEN INDICTED AND WAS REPRESENTED BY COUNSEL, POSED AS A FELLOW
PRISONER AND SPENT ALMOST TWO FULL DAYS SHARING A CELL WITH
PETITIONER.  THE OFFICER TESTIFIED TO INCRIMINATING STATEMENTS MADE TO
HIM BY PETITIONER DURING THIS PERIOD.  CONTENDING THAT THE STATEMENTS
HE MADE TO THE OFFICER WERE INVOLUNTARY UNDER FIFTH AMENDMENT STANDARDS
AND WERE OBTAINED IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS AS
SUBSEQUENTLY INTERPRETED IN MASSIAH V. UNITED STATES, 377 U.S. 201
(1964), PETITIONER INITIATED THE PRESENT HABEAS CORPUS PROCEEDING IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA. 
THE DISTRICT COURT, FINDING THAT PETITIONER HAD EXHAUSTED HIS STATE
REMEDIES IN THE COURSE OF SEVERAL POST-CONVICTION PROCEEDINGS IN THE
FLORIDA COURTS, RULED AGAINST PETITIONER ON THE MERITS OF HIS CLAIM,
HOLDING THAT HIS STATEMENTS TO THE POLICE OFFICER WERE NOT INADMISSIBLE
ON FIFTH AMENDMENT GROUNDS AND THAT HIS SIXTH AMENDMENT CLAIM COULD NOT
PREVAIL SINCE "(NO COURT HAS DECLARED MASSIAH RETROACTIVE, AND THIS
COURT WILL NOT BE THE FIRST TO DO SO."  306 F.SUPP.  929, 933.  THE
COURT OF APPEALS AFFIRMED THE DENIAL OF RELIEF TO PETITIONER, 428 F.2D
463. 

ON THE BASIS OF THE ARGUMENT IN THE CASE AND OUR EXAMINATION OF THE
EXTENSIVE RECORD OF PETITIONER'S 1958 TRIAL, WE HAVE CONCLUDED THAT THE
JUDGMENT UNDER REVIEW MUST BE AFFIRMED WITHOUT REACHING THE MERITS OF
PETITIONER'S PRESENT CLAIM.  ASSUMING, ARGUENDO, THAT THE CHALLENGED
TESTIMONY SHOULD HAVE BEEN EXCLUDED, THE RECORD CLEARLY REVEALS THAT
ANY ERROR IN ITS ADMISSION WAS HARMLESS BEYOND A REASONABLE DOUBT. 
HARRINGTON V. CALIFORNIA, 395 U.S. 250 (1969); CHAPMAN V. CALIFORNIA,
386 U.S. 18 (1967).  THE JURY, IN ADDITION TO HEARING THE CHALLENGED
TESTIMONY, WAS PRESENTED WITH OVERWHELMING EVIDENCE OF PETITIONER'S
GUILT, INCLUDING NO LESS THAN THREE FULL CONFESSIONS THAT WERE MADE BY
PETITIONER PRIOR TO HIS INDICTMENT.  THOSE CONFESSIONS HAVE BEEN FOUND
ADMISSIBLE IN THE COURSE OF PREVIOUS POST-CONVICTION PROCEEDINGS
BROUGHT BY PETITIONER IN HIS ATTEMPTS TO HAVE THIS CONVICTION SET
ASIDE, AND THEY ARE NOT CHALLENGED HERE. 

THE CRIME FOR WHICH PETITIONER WAS CONVICTED OCCURRED IN THE EARLY
MORNING HOURS OF JUNE 1, 1958.  THE WOMAN WITH WHOM PETITIONER HAD BEEN
LIVING WAS ASLEEP WHILE RIDING AS A PASSENGER IN THE REAR SEAT OF AN
AUTOMOBILE DRIVEN BY PETITIONER; SHE DIED BY DROWNING WHEN THE CAR RAN
INTO THE MIAMI RIVER WITH ITS REAR WINDOWS CLOSED AND ITS REAR DOORS
SECURELY LOCKED FROM THE OUTSIDE WITH SAFETY DEVICES DESIGNED TO ENSURE
AGAINST ACCIDENTAL OPENING OF THE DOORS.  PETITIONER, WHO JUMPED FROM
THE CAR SHORTLY BEFORE IT REACHED THE WATER, WAS NEVERTHELESS PROPELLED
INTO THE RIVER BY THE CAR'S MOMENTUM; HE WAS RECOVERED FROM THE WATER
WHEN A SEAMAN NEARBY HEARD HIS CRIES FOR HELP AND FOUND HIM CLINGING TO
A BOAT MOORED IN THE RIVER NEAR THE POINT OF THE AUTOMOBILE'S ENTRY.  A
FEW HOURS LATER THE CAR, WITH THE VICTIM'S BODY STILL INSIDE, WAS
RETRIEVED FROM THE BOTTOM OF THE RIVER A SHORT DISTANCE DOWNSTREAM FROM
ITS POINT OF ENTRY. 

THE FOLLOWING DAY THE MIAMI POLICE ARRESTED PETITIONER ON
MANSLAUGHTER CHARGES AND PLACED HIM IN THE CITY JAIL.  TEN DAYS AFTER
THE WOMAN'S DEATH, PETITIONER, HAVING BEEN ADVISED OF HIS RIGHT TO
REMAIN SILENT, CONFESSED THAT HE HAD DELIBERATELY KILLED THE WOMAN AND
THAT THE ACCIDENT WAS SIMULATED.  HE FIRST MADE AN ORAL CONFESSION TO A
POLICE OFFICER DURING A QUESTION-AND-ANSWER EXCHANGE THAT WAS PRESERVED
ON A WIRE-RECORDING DEVICE.  HE THEN REPEATED HIS CONFESSION DURING
ANOTHER EXCHANGE AND THESE STATEMENTS WERE TAKEN DOWN BY A
STENOGRAPHER; AFTER THIS STENOGRAPHIC RECORDING WAS CONVERTED TO A
TRANSCRIPT, PETITIONER READ IT OVER IN FULL AND SIGNED IT AT 11 P.M. ON
JUNE 11.  /1/ 

THE FOLLOWING DAY, PETITIONER TOLD A POLICE OFFICER THAT HE WOULD
LIKE TO MAKE SOME CLARIFYING ADDITIONS TO THE STATEMENTS IN THE WRITING
HE HAD SIGNED THE PREVIOUS NIGHT.  THE OFFICER SUGGESTED THAT THEY
FIRST GO WITH A PHOTOGRAPHER TO THE SCENE OF THE INCIDENT "AND
RECONSTRUCT HOW THIS THING . . . OCCURRED."  PETITIONER AGREED.  HE,
THE POLICE OFFICER, AND A PHOTOGRAPHER THEN WENT TO THE SCENE OF THE
CRIME WHERE PETITIONER POINTED OUT THE ROUTE HE HAD TAKEN IN DRIVING
THE CAR TO THE RIVER, THE APPROXIMATE POINT AT WHICH HE HAD JUMPED OUT
OF THE CAR, AND THE POINT OF THE CAR'S ENTRY INTO THE RIVER. 
PETITIONER WAS THEN TAKEN BACK TO THE POLICE STATION WHERE HE WENT OVER
HIS STATEMENT OF THE NIGHT BEFORE AND INDICATED TO THE OFFICER THE
PARTS OF THAT STATEMENT HE WANTED TO CLARIFY.  ONCE AGAIN, A
STENOGRAPHER WAS SUMMONED AND A QUESTION-AND-ANSWER EXCHANGE WAS TAKEN
DOWN AND TRANSCRIBED TO A WRITING THAT PETITIONER READ OVER AND
SIGNED.  /2/  APPROXIMATELY ONE WEEK AFTER HE HAD MADE THESE
CONFESSIONS, PETITIONER SECURED THE SERVICES OF AN ATTORNEY WHO ADVISED
HIM NOT TO ENGAGE IN ANY FURTHER DISCUSSIONS OF HIS CASE WITH ANYONE
ELSE. 

FOLLOWING THIS, AND WHILE PETITIONER WAS UNDER INDICTMENT AND
CONFINED IN THE DADE COUNTY JAIL AWAITING TRIAL, THE STATE, FOR REASONS
THAT ARE NOT ALTOGETHER CLEAR, ASSIGNED A POLICE OFFICER NAMED LANGFORD
THE SPECIAL DETAIL OF POSING AS A PRISONER AND SHARING PETITIONER'S
CELL IN ORDER TO "SEEK INFORMATION" FROM HIM. 

LANGFORD ENTERED THE CELL WITH PETITIONER LATE ONE FRIDAY AFTERNOON
AND PRESENTED HIMSELF AS A FELLOW PRISONER UNDER INVESTIGATION FOR
MURDER; HE ASSUMED A FRIENDLY POSE TOWARD HIS CELLMATE, OFFERING
PETITIONER SOME OF HIS PRISON FOOD AT THEIR FIRST BREAKFAST TOGETHER
THE NEXT MORNING AND TELLING PETITIONER SOMETHING OF HIS OWN FICTITIOUS
"CRIME," WHICH HE DESCRIBED AS A ROBBERY COMMITTED WITH AN ACCOMPLICE
WHO HAD USED LANGFORD'S GUN TO KILL THE ROBERRY VICTIM.  FINALLY,
PETITIONER BEGAN TO BOAST THAT HE HAD NOT MADE LANGFORD'S MISTAKE OF
HAVING AN ACCOMPLICE WHO MIGHT LATER SERVE AS A WITNESS; INSTEAD, HE
SAID, HE HAD COMMITTED THE "PERFECT" CRIME WITH NO SURVIVING
WITNESSES.  BY THE TIME LANGFORD LEFT THE CELL ON SUNDAY AFTERNOON,
PETITIONER HAD DESCRIBED HIS OWN CRIME IN SOME DETAIL AND HAD PREDICTED
WITH MUCH ASSURANCE THAT HE WOULD SOON BE RELEASED, THAT HE WOULD
COLLECT A LOT OF INSURANCE MONEY, AND THAT HE WOULD THEN FLEE THE STATE
WITH THE INSURANCE MONEY WITHOUT EVER BEING BROUGHT TO TRIAL FOR HIS
"PERFECT"  CRIME.  THE INCRIMINATING STATEMENTS MADE TO LANGFORD WERE
ESSENTIALLY THE SAME AS THOSE GIVEN IN THE PRIOR CONFESSIONS NOT
CHALLENGED HERE. 

AT PETITIONER'S TRIAL IN STATE COURT, THE WIRE RECORDING OF HIS
FIRST CONFESSION WAS PLAYED BACK, FIRST TO THE JUDGE FOR A RULING ON
ITS ADMISSIBILITY, AND THEN TO THE JURY.  PETITIONER'S TWO WRITTEN
CONFESSIONS WERE ALSO RECEIVED IN EVIDENCE, AS WERE THE PHOTOGRAPHS
THAT WERE TAKEN AND THE STATEMENTS THAT WERE MADE BY PETITIONER WHEN HE
RECONSTRUCTED THE CRIME AT THE SCENE OF ITS OCCURRENCE.  IN ADDITION,
LANGFORD WAS PERMITTED TO TESTIFY TO THE STATEMENTS MADE TO HIM BY
PETITIONER WHILE THE TWO MEN WERE SHARING THE CELL IN THE COUNTY JAIL. 
OTHER EVIDENCE, HIGHLY DAMAGING TO PETITIONER IN ITS TOTALITY, WAS ALSO
PRESENTED TO THE JURY.  FOR EXAMPLE, THERE WAS TESTIMONY THAT
PETITIONER HAD TOLD AN ACQUAINTANCE A FEW MONTHS BEFORE THE MURDER THAT
HE DISLIKED MINNIE CLAYBON (THE MURDER VICTIM) AND WAS INTERESTED ONLY
IN GETTING SOME MONEY OUT OF HER.  THE TERMS OF CERTAIN INSURANCE
POLICIES PURCHASED BY PETITIONER ABOUT TWO MONTHS BEFORE THE CRIME WERE
DESCRIBED IN TESTIMONY GIVEN BY THE SELLING INSURANCE AGENTS; THE
POLICIES PROVIDED FOR THE PAYMENT OF $8,500 TO PETITIONER UPON THE
ACCIDENTAL DEATH OF MISS CLAYBON, AND THE AGENTS TESTIFIED THAT
PETITIONER HAD FAITHFULLY MAINTAINED HIS WEEKLY PREMIUM PAYMENTS ON THE
POLICIES.  OTHER TESTIMONY, HOWEVER, INDICATED THAT PETITIONER WAS HARD
PRESSED FOR MONEY SHORTLY BEFORE THE MURDER, HAVING FALLEN BEHIND IN
HIS RENT PAYMENTS AND HAVING SOLD SOME OF HIS PERSONAL CLOTHING TO
RAISE SMALL SUMS.  THERE WAS TESTIMONY THAT PETITIONER HAD PURCHASED
THE CAR IN WHICH MISS CLAYBON DROWNED ON THE VERY AFTERNOON BEFORE THE
CRIME, MAKING A CASH DOWN PAYMENT OF $8; THAT THE SAFETY DEVICES ON THE
REAR DOORS OF THE CAR HAD BEEN LEFT IN THE UNLOCKED POSITION BY THE
CAR'S FORMER OWNER; THAT THESE DEVICES COULD BE PUT IN THE LOCKED
POSITION ONLY BY LOOSENING A SCREW, SLIDING THE LOCKING DEVICE INTO
POSITION, AND THEN RETIGHTENING THE SCREW; AND THAT THESE DEVICES WERE
FOUND SECURELY SCREWED IN THE LOCKED POSITION WHEN THE CAR, WITH THE
VICTIM'S BODY STILL INSIDE, WAS RECOVERED FROM THE RIVER.  AFTER
HEARING ALL THE EVIDENCE, THE JURY FOUND PETITIONER GUILTY OF MURDER IN
THE FIRST DEGREE, BUT RECOMMENDED MERCY; ON THAT RECOMMENDATION, THE
TRIAL JUDGE IMPOSED THE SENTENCE OF LIFE IMPRISONMENT. 

THE PETITIONER HAS MADE A NUMBER OF COLLATERAL ATTACKS ON HIS
CONVICTION, PRIMARILY IN THE COURTS OF FLORIDA.  IN RESPONSE TO ONE OF
HIS APPLICATIONS FOR POST-CONVICTION RELIEF, THE FLORIDA SUPREME COURT
ISSUED A WRIT OF HABEAS CORPUS, HEARD ORAL ARGUMENT ON THE
VOLUNTARINESS OF PETITIONER'S WIRE-RECORDED AND WRITTEN CONFESSIONS,
BUT THEREAFTER DISCHARGED THE WRIT IN A REPORTED DECISION UPHOLDING THE
VOLUNTARINESS OF THOSE CONFESSIONS AND THEIR ADMISSIBILITY AT TRIAL. 
MILTON V. COCHRAN, 147 SO.2D 137 (1962), CERT. DENIED, 375 U.S. 869
(1963).  THE ISSUES RAISED IN THAT PROCEEDING ARE NOT NOW BEFORE US AND
MUST, FOR THE PURPOSES OF THE INSTANT CASE, BE TREATED AS HAVING BEEN
PROPERLY RESOLVED BY THE FLORIDA SUPREME COURT.  CF. SUP. CT. RULE
23(1)(C). 

IN INITIATING THE PRESENT HABEAS CORPUS PROCEEDING IN THE DISTRICT
COURT, PETITIONER SOUGHT TO HAVE HIS CONVICTION SET ASIDE ON THE GROUND
THAT THE STATEMENTS HE MADE TO POLICE OFFICER LANGFORD SHOULD NOT HAVE
BEEN ADMITTED AGAINST HIM.  OUR REVIEW OF THE RECORD, HOWEVER, LEAVES
US WITH NO REASONABLE DOUBT THAT THE JURY AT PETITIONER'S 1958 TRIAL
WOULD HAVE REACHED THE SAME VERDICT WITHOUT HEARING LANGFORD'S
TESTIMONY.  THE WRIT OF HABEAS CORPUS HAS LIMITED SCOPE; THE FEDERAL
COURTS DO NOT SIT TO RE-TRY STATE CASES DE NOVO BUT, RATHER, TO REVIEW
FOR VIOLATION OF FEDERAL CONSTITUTIONAL STANDARDS.  IN THAT PROCESS WE
DO NOT CLOSE OUR EYES TO THE REALITY OF OVERWHELMING EVIDENCE OF GUILT
FAIRLY ESTABLISHED IN THE STATE COURT 14 YEARS AGO BY USE OF EVIDENCE
NOT CHALLENGED HERE; THE USE OF THE ADDITIONAL EVIDENCE CHALLENGED IN
THIS PROCEEDING AND ARGUABLY OPEN TO CHALLENGE WAS, BEYOND REASONABLE
DOUBT, HARMLESS. 

              AFFIRMED. 

/1/  IN THIS FIRST WRITTEN CONFESSION, PETITIONER MADE THE FOLLOWING
STATEMENTS: 

"MINNIE LEE CLAYBON (THE MURDER VICTIM) AND MYSELF HAD AN INSURANCE
POLICY TOGETHER.  SO I STARTED THINKING ABOUT THE INSURANCE AND THE
MONEY THAT I COULD GET IF SOMETHING HAPPENED TO HER.  I KNEW THAT I
COULD USE THE MONEY IF SOMETHING HAPPENED.  SO I DECIDED TO DO
SOMETHING ABOUT IT ONE WAY OR THE OTHER, SO ONE NIGHT WE HAD BEEN
RIDING AROUND IN THE CAR.  SO I DECIDED TO GET THE WHOLE THING OVER
WITH.  SO I DRIVED THE CAR INTO THE RIVER AND SHE WAS KILLED. 

        .          .          .         . 

" . . . I DROVE THE CAR STRAIGHT TOWARD THE RIVER, AND JUST AS I GOT
ALMOST TO THE RIVER, . . . I JUMPED FROM THE CAR AND THE CAR WENT ON
INTO THE RIVER AND I SKIDDED AND KEPT ROLLING OVER AND OVER UNTIL I WAS
IN THE RIVER ALSO.  I HURT MY SHOULDER.  I COULDN'T MOVE THAT ARM.  IT
WAS HURTING REAL BAD." 

/2/  IN THIS SECOND WRITING, PETITIONER CONFIRMED IN MAJOR PART THE
STATEMENTS HE HAD MADE THE NIGHT BEFORE, BUT SAID IN ADDITION THAT HE
HAD "DECIDED TO KILL" THE WOMAN "ABOUT A MONTH BEFORE THIS INCIDENT
HAPPENED."  HE FURTHER STATED, HOWEVER, THAT HE WAS NOT THINKING OF THE
INSURANCE MONEY WHEN HE MADE THAT DECISION, BUT WAS THINKING INSTEAD OF
THE WOMAN'S HABITS OF ASSOCIATING WITH OTHER MEN, DRINKING TOO MUCH,
AND STAYING OUT LATE AT NIGHT.  HE REAFFIRMED IN EXPRESS TERMS THAT HE
HAD DELIBERATELY DRIVEN THE CAR INTO THE RIVER WITH THE INTENTION OF
KILLING THE WOMAN. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

UNDER THE GUISE OF FINDING "HARMLESS ERROR," THE COURT TODAY TURNS
ITS BACK ON A LANDMARK CONSTITUTIONAL PRECEDENT ESTABLISHED 40 YEARS
AGO.  THAT PRECEDENT, WHICH CLEARLY CONTROLS THIS CASE, IS POWELL V.
ALABAMA, 287 U.S. 45.  I RESPECTFULLY DISSENT. 

IN 1958 A FLORIDA GRAND JURY INDICTED THE PETITIONER, GEORGE MILTON,
FOR FIRST-DEGREE MURDER.  THIS WAS AN OFFENSE PUNISHABLE BY DEATH UNDER
FLORIDA LAW.  AFTER HE HAD BEEN INDICTED, MILTON WAS REMANDED TO THE
DADE COUNTY JAIL TO AWAIT TRIAL.  HE HAD RETAINED A LAWYER, WHO HAD
ADVISED HIM NOT TO TALK ABOUT HIS CASE WITH ANYONE.     SOME TWO WEEKS
LATER THE STATE DIRECTED A POLICE OFFICER NAMED LANGFORD TO ENTER
MILTON'S CELL, POSING AS A FELLOW PRISONER ALSO UNDER INDICTMENT FOR
MURDER, IN ORDER TO "SEEK INFORMATION" FROM MILTON.  LANGFORD ENTERED
THE CELL ON A FRIDAY EVENING.  THAT NIGHT HE "TRIED TO OPEN HIM
(MILTON) UP," BUT MILTON REFUSED TO TALK ABOUT HIS CASE.  THE NEXT DAY
LANGFORD DEVOTED HIS EFFORTS TO GAINING MILTON'S CONFIDENCE.  HE SHARED
HIS BREAKFAST WITH MILTON AND GAVE HIM CANDY.  HE TALKED CONVINCINGLY
ABOUT HIS OWN PURPORTED CRIME.  HE TRIED TO STEER THE CONVERSATION TO
THE CHARGE AGAINST MILTON, BUT MILTON REPEATEDLY SAID HE DID NOT WANT
TO TALK ABOUT IT, AND HAD BEEN TOLD NOT TO TALK ABOUT IT BY HIS
LAWYER.  FINALLY, SOMETIME BETWEEN MIDNIGHT AND 3 A.M. ON SUNDAY, AFTER
ALMOST 36 HOURS OF PRODDING BY HIS SUPPOSED FELLOW PRISONER, MILTON
ALLEGEDLY CONFESSED THE MURDER TO LANGFORD. 

AT MILTON'S SUBSEQUENT TRIAL, LANGFORD, OVER OBJECTION, WAS ALLOWED
TO TESTIFY IN DETAIL TO THIS ALLEGED CONFESSION.  MILTON WAS CONVICTED,
AND, UPON THE RECOMMENDATION OF THE JURY, HE WAS NOT SENTENCED TO
DEATH, BUT TO LIFE IMPRISONMENT.  HIS APPEALS TO THE STATE APPELLATE
COURTS WERE UNAVAILING, AND HE ULTIMATELY FILED THE PRESENT FEDERAL
HABEAS CORPUS PROCEEDING IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA, CLAIMING THAT HIS CONVICTION WAS INVALID
BECAUSE HE HAD BEEN DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE
ASSISTANCE OF COUNSEL AFTER THE INDICTMENT. 

THE DISTRICT JUDGE DENIED THE WRIT, APPARENTLY BELIEVING THAT THE
QUESTION BEFORE HIM WAS WHETHER THIS COURT'S DECISION IN MASSIAH V.
UNITED STATES, 377 U.S. 201, WAS "RETROACTIVE": 

"THIS CASE WAS TRIED SIX YEARS BEFORE THE SUPREME COURT INDICATED IN
MASSIAH V. UNITED STATES, 377 U.S. 201 . . . (1964), THAT CONFESSIONS
ARE INVOLUNTARY PER SE IF INDUCED BY OFFICERS OR THEIR AGENTS FROM AN
ACCUSED AFTER HIS INDICTMENT WHILE HE IS WITHOUT ASSISTANCE OF
COUNSEL.  NO COURT HAS DECLARED MASSIAH RETROACTIVE, AND THIS COURT
WILL NOT BE THE FIRST TO DO SO.  COUNSEL FOR MILTON ARGUES THAT MASSIAH
WAS NOT DECLARED RETROACTIVE BECAUSE FAR FROM STATING NEW PRINCIPLES OF
LAW, IT MERELY RESTATED PRINCIPLES DERIVED FROM POWELL V. ALABAMA, 287
U.S. 45 . . . (1932).  HOWEVER, THE POWELL CASE DEALT WITH THE SIXTH
AMENDMENT RIGHT TO APPOINTMENT OF COUNSEL IN A CAPITAL CASE, A
SITUATION FAR DIFFERENT FROM THIS CASE.  MILTON KNEW WHAT HE WAS
DOING.  HE WASN'T INTIMIDATED BY THE POLICE, BECAUSE HE DIDN'T EVEN
KNOW HIS CELLMATE WAS A POLICEMAN.  HE HAD A LAWYER WHO HAD TOLD HIM
NOT TO MAKE ANY STATEMENTS CONCERNING HIS CASE, BUT HE CHOSE NOT TO
FOLLOW THAT ADVICE."  306 F.SUPP.  929, 933-934.  THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT AFFIRMED PER CURIAM "ON THE BASIS OF (THE
DISTRICT COURT'S) OPINION," 428 F.2D 463, AND WE GRANTED CERTIORARI,
403 U.S. 904. 

THE DISTRICT COURT AND THE COURT OF APPEALS WERE IN ERROR.  THEY
WERE MISTAKEN, FIRST, IN THINKING THAT THE MASSIAH CASE HAD ANYTHING TO
DO WITH THE "VOLUNTARINESS" OF A CONFESSION.  THEY WERE MISTAKEN,
SECOND, IN THINKING THAT ANY REAL QUESTION OF "RETROACTIVITY" WAS
PRESENTED.  THEY WERE MISTAKEN, THIRD, IN THINKING THAT POWELL V.
ALABAMA, SUPRA, DEALT ONLY WITH "APPOINTMENT OF COUNSEL IN A CAPITAL
CASE."  AND THEY WERE MISTAKEN, FOURTH, IN THINKING THAT POWELL V.
ALABAMA WAS INAPPLICABLE TO THIS CASE. 

POWELL V. ALABAMA, DECIDED ALMOST 40 YEARS AGO, WAS ONE OF THE TRULY
LANDMARK CONSTITUTIONAL DECISIONS OF THIS COURT.  IT HELD THAT UNDER
THE FOURTEENTH AMENDMENT A MAN INDICTED FOR A CAPITAL OFFENSE IN A
STATE COURT HAS AN ABSOLUTE RIGHT, NOT "TO APPOINTMENT OF," BUT TO THE
ASSISTANCE OF COUNSEL.  AND THAT CONSTITUTIONAL RIGHT IS NOT RESTRICTED
TO THE TRIAL.  THE COURT REVERSED THE CONVICTIONS IN POWELL, BECAUSE: 

"DURING PERHAPS THE MOST CRITICAL PERIOD OF THE PROCEEDINGS AGAINST
THESE DEFENDANTS, THAT IS TO SAY, FROM THE TIME OF THEIR ARRAIGNMENT
UNTIL THE BEGINNING OF THEIR TRIAL, WHEN CONSULTATION, THOROUGH-GOING
INVESTIGATION AND PREPARATION WERE VITALLY IMPORTANT, THE DEFENDANTS
DID NOT HAVE THE AID OF COUNSEL IN ANY REAL SENSE, ALTHOUGH THEY WERE
AS MUCH ENTITLED TO SUCH AID DURING THAT PERIOD AS AT THE TRIAL
ITSELF."  287 U.S.,AT 57. 

IN MASSIAH V. UNITED STATES, SUPRA, WE FOUND THAT THIS
CONSTITUTIONAL RIGHT TO COUNSEL /1/  WAS VIOLATED WHEN, AFTER
INDICTMENT, A DEFENDANT WHO HAD A LAWYER WAS SURREPTITIOUSLY
INTERROGATED ALONE BY AN AGENT OF THE POLICE.  "(UNDER OUR SYSTEM OF
JUSTICE," WE SAID, "THE MOST ELEMENTAL CONCEPTS OF DUE PROCESS OF LAW
CONTEMPLATE THAT AN INDICTMENT BE FOLLOWED BY A TRIAL, 'IN AN ORDERLY
COURTROOM, PRESIDED OVER BY A JUDGE, OPEN TO THE PUBLIC, AND PROTECTED
BY ALL THE PROCEDURAL SAFEGUARDS OF THE LAW.'  . . . " "(A)
CONSTITUTION WHICH GUARANTEES A DEFENDANT THE AID OF COUNSEL AT SUCH A
TRIAL COULD SURELY VOUCHSAFE NO LESS TO AN INDICTED DEFENDANT UNDER
INTERROGATION BY THE POLICE IN A COMPLETELY EXTRAJUDICIAL PROCEEDING. 
. . . " "THIS VIEW," WE SAID, "NO MORE THAN REFLECTS A CONSTITUTIONAL
PRINCIPLE ESTABLISHED AS LONG AGO AS POWELL V. ALABAMA, 287 U.S. 45." 
377 U.S.,AT 204-205. 

THE "RETROACTIVITY" OF THE MASSIAH DECISION IS A WHOLLY SPURIOUS
ISSUE.  FOR MASSIAH MARKED NO NEW DEPARTURE IN THE LAW.  IT UPSET NO
ACCEPTED PROSECUTORIAL PRACTICE.  ITS "RETROACTIVITY" WOULD EFFECT NO
WHOLESALE JAIL DELIVERIES.  CF. TEHAN V. SHOTT, 382 U.S. 406, 418-419. 
IN NO CASE BEFORE MASSIAH HAD THIS COURT, AT LEAST SINCE POWELL V.
ALABAMA, EVER COUNTERNANCED THE KIND OF POST-INDICTMENT POLICE
INTERROGATION THERE INVOLVED, LET ALONE EVER SPECIFICALLY UPHELD THE
CONSTITUTIONALITY OF ANY SUCH INTERROGATION.  /2/ 

FOR FOUR DECADES THIS COURT HAS RECOGNIZED THAT WHEN A STATE INDICTS
A MAN FOR A CAPITAL OFFENSE, THE MOST RUDIMENTARY CONSTITUTIONAL
PRINCIPLES REQUIRE THAT HE BE AFFORDED THE FULL AND EFFECTIVE
ASSISTANCE OF COUNSEL: 

     "LET IT BE EMPHASIZED AT THE OUTSET THAT THIS IS NOT A CASE

  WHERE THE POLICE WERE QUESTIONING A SUSPECT IN THE COURSE OF

  INVESTIGATING AN UNSOLVED CRIME.  . . . 

     "UNDER OUR SYSTEM OF JUSTICE AN INDICTMENT IS SUPPOSED TO BE

  FOLLOWED BY AN ARRAIGNMENT AND A TRIAL.  AT EVERY STAGE IN THOSE

  PROCEEDINGS THE ACCUSED HAS AN ABSOLUTE RIGHT TO A LAWYER'S HELP

  IF THE CASE IS ONE IN WHICH A DEATH SENTENCE MAY BE IMPOSED. 

  POWELL V. ALABAMA."  SPANO V. NEW YORK, 360 U.S. 315, 327

  (CONCURRING OPINION). 

SO THE QUESTION IN THIS CASE IS NOT WHETHER MASSIAH IS "RETROACTIVE,"
/3/  FOR THE RULE IN THAT CASE HAS BEEN SETTLED LAW EVER SINCE POWELL
V. ALABAMA. 

I CAN FIND NO BASIS FOR THE COURT'S HOLDING TODAY THAT THE ADMISSION
OF OFFICER LANGFORD'S TESTIMONY WAS HARMLESS.  IN CHAPMAN V.
CALIFORNIA, 386 U.S. 18, WE SAID THAT AN "ERROR IN ADMITTING PLAINLY
RELEVANT EVIDENCE WHICH POSSIBLY INFLUENCED THE JURY ADVERSELY TO A
LITIGANT CANNOT, UNDER FAHY (V. CONNECTICUT, 375 U.S. 85), BE CONCEIVED
OF AS HARMLESS."  386 U.S.,AT 23-24.  AND ON THE QUESTION OF WHETHER A
JURY MIGHT POSSIBLY HAVE BEEN INFLUENCED, THE STATE MUST "PROVE BEYOND
A REASONABLE DOUBT THAT THE ERROR COMPLAINED OF DID NOT CONTRIBUTE TO
THE VERDICT OBTAINED."  ID., AT 24. 

NEITHER THE DISTRICT COURT NOR THE COURT OF APPEALS EVEN SUGGESTED
THE POSSIBILITY OF HARMLESS ERROR IN THIS CASE, AND WITH VERY GOOD
REASONS.  THE COURT TODAY RELIES ON THE FACT THAT THE CHALLENGED
"CONFESSION" WAS ONLY ONE OF SEVERAL INTRODUCED AT THE PETITIONER'S
TRIAL.  BUT IT FAILS TO MENTION THAT EACH OF THE PREVIOUS STATEMENTS
WAS TAKEN DURING AN 18-DAY PERIOD AFTER ARREST BUT BEFORE INDICTMENT,
WHEN THE PETITIONER WAS HELD IN JAIL INCOMMUNICADO AND WAS QUESTIONED
ALMOST EVERY DAY, OFTEN FOR HOURS AT A TIME.  FOR 10 DAYS THE
PETITIONER DENIED THAT HE HAD DELIBERATELY KILLED HIS WIFE.  FINALLY,
DURING A SESSION IN WHICH TWO DETECTIVES WORKING IN TANDEM QUESTIONED
HIM CONTINUOUSLY FOR SOME EIGHT HOURS, THE PETITIONER ALLEGEDLY
CONFESSED.  OTHER STATEMENTS FOLLWED THAT ONE, BUT ALL WERE TAKEN
DURING THE PERIOD OF INCOMMUNICADO DETENTION. 

UNDER THESE CIRCUMSTANCES, IT IS HARDLY SURPRISING THAT THE MIAMI
POLICE CHOSE TO PLANT AN OFFICER IN THE PETITIONER'S JAIL CELL TWO
WEEKS AFTER INDICTMENT, IN THE HOPE OF OBTAINING ADMISSIONS LESS
TAINTED BY THE INDICIA OF UNRELIABILITY THAT SURROUNDED THE PREVIOUS
STATEMENTS.  THEY SUCCEEDED IN DOING SO, AND THE ALLEGED CONFESSION
THUS OBTAINED WAS TRULY DEVASTATING TO THE DEFENSE AT THE TRIAL. 
LANGFORD'S TESTIMONY WAS THE FIRST EVIDENCE OF ANY INCRIMINATING
STATEMENTS INTRODUCED BY THE STATE AT THE TRIAL, AND IT WAS REFERRED TO
REPEATEDLY BY THE PROSECUTOR IN HIS FINAL ARGUMENT. 

THE STATE COURTS DETERMINED THAT THE PETITIONER'S PREINDICTMENT
STATEMENTS WERE VOLUNTARY, AND THAT ISSUE, AS THE COURT NOTES, IS NOT
NOW BEFORE US.  BUT THE WEIGHT GIVEN BY A JURY TO ANY ALLEGED
CONFESSION IS AFFECTED BY THE CIRCUMSTANCES UNDER WHICH IT WAS
OBTAINED, AND THE ABILITY OF THE PETITIONER TO DISCREDIT IN THE MINDS
OF THE JURY THE EVIDENCE OF HIS PRIOR STATEMENTS WAS UNDOUBTEDLY
DESTROYED BY THE STRONG CORROBORATION AND ELABORATION SUPPLIED BY THE
TESTIMONY OF OFFICER LANGFORD, WHO HAD BEEN UNCONSTITUTIONALLY PLANTED
IN THE PETITIONER'S JAIL CELL.  SURELY THERE IS AT THE LEAST A
REASONABLE DOUBT WHETHER IN THESE CIRCUMSTANCES THE INTRODUCTION OF
LANGFORD'S TESTIMONY DID NOT CONTRIBUTE THE VERDICT OF FIRST-DEGREE
MURDER RETURNED BY THE JURY, PARTICULARLY WHERE A CONVICTION FOR A
LESSER DEGREE OF HOMICIDE WAS A DISTINCT POSSIBILITY ON THE EVIDENCE. 

TO HOLD OTHERWISE, IN THE ABSENCE OF ANY FINDING OF HARMLESS ERROR
BY ANY OF THE FOUR COURTS THAT HAVE PREVIOUSLY RULED ON THE
ADMISSIBILITY OF LANGFORD'S TESTIMONY, IS TO VIOLATE THE VERY PRINCIPLE
THAT THE COURT RESTATES TODAY:  "THE WRIT OF HABEAS CORPUS HAS LIMITED
SCOPE; THE FEDERAL COURTS DO NOT SIT TO RE-TRY STATE CASES DE NOVO BUT
RATHER TO REVIEW FOR VIOLATION OF FEDERAL CONSTITUTIONAL STANDARDS." 
ANTE, AT 377. 

DESPITE ITS ADMONITION, THE COURT TODAY REFUSES TO RULE ON THE
CONSTITUTIONAL QUESTION SQUARELY PRESENTED IN THIS CASE.  THAT QUESTION
IS WHETHER THE GREAT CONSTITUTIONAL LESSON OF POWELL V. ALABAMA IS TO
BE IGNORED.  I WOULD NOT IGNORE IT, BUT WOULD HONOR ITS "FUNDAMENTAL
POSTULATE . . . 'THAT THERE ARE CERTAIN IMMUTABLE PRINCIPLES OF JUSTICE
WHICH INHERE IN THE VERY IDEA OF FREE GOVERNMENT WHICH NO MEMBER OF THE
UNION MAY DISREGARD."  POWELL V. ALABAMA, 287 U.S.,AT 71-72. 

FOR THESE REASONS, I WOULD REVERSE THE JUDGMENT BEFORE US. 

/1/  MASSIAH INVOLVED A FEDERAL NONCAPITAL FELONY CHARGE, WHERE THE
DEFENDANT HAD AN ABSOLUTE SIXTH AMENDMENT RIGHT TO COUNSEL UNDER
JOHNSON V. ZERBST, 304 U.S. 458.  THE SAME ABSOLUTE RIGHT WAS SECURED
BY GIDEON V. WAINWRIGHT, 372 U.S. 335, TO DEFENDANTS IN NONCAPITAL
STATE CRIMINAL CASES UNDER THE SIXTH AND FOURTEENTH AMENDMENTS.  THIS
CONSTITUTIONAL GUARANTEE HAS NOW BEEN FURTHER EXTENDED.  SEE
ARGERSINGER V. HAMLIN, ANTE, P. 25. 

/2/  AN ISSUE OF THE "RETROACTIVITY" OF A DECISION OF THIS COURT IS
NOT EVEN PRESNETED UNLESS THE DECISION IN QUESTION MARKS A SHARP BREAK
IN THE WEB OF THE LAW.  THE ISSUE IS PRESENTED ONLY WHEN THE DECISION
OVERRULES CLEAR PAST PRECEDENT, E.G., LINKLETTER V. WALKER, 381 U.S.
618; DESIST V. UNITED STATES, 394 U.S. 244; WILLIAMS V. UNITED STATES,
401 U.S. 646; OR DISRUPTS A PRACTICE LONG ACCEPTED AND WIDELY RELIED
UPON, E.G., JOHNSON V. NEW JERSEY, 384 U.S. 719; STOVALL V. DENNO, 388
U.S. 293; CIPRIANO V. CITY OF HOUMA, 395 U.S. 701. 

/3/  EVEN ON THE ERRONEOUS PREMISE THAT THE "RETROACTIVITY" OF
MASSIAH IS HERE INVOLVED, THE DISTRICT COURT WAS QUITE MISTAKEN IN
STATING THAT "(NO COURT HAS DECLARED MASSIAH RETROACTIVE."  THIS COURT,
IN MCLEOD V. OHIO, 381 U.S. 356, REVERSED, CITING MASSIAH, AN OHIO
CONVICTION BECAUSE A VOLUNTARY CONFESSION WAS ADMITTED IN EVIDENCE THAT
HAD BEEN OBTAINED WHEN POLICE OFFICERS QUESTIONED THE PETITIONER IN THE
ABSENCE OF COUNSEL A WEEK AFTER HE HAD BEEN INDICTED.  THE CONVICTION
ANTEDATED MASSIAH BY ALMOST FOUR YEARS. 

NEIL P. RUTLEDGE, BY APPOINTMENT OF THE COURT, 403 U.S. 951, ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

J. ROBERT OLIAN, ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED THE
CAUSE FOR RESPONDENT PRO HAC VICE.  WITH HIM ON THE BRIEF WAS ROBERT L.
SHEVIN, ATTORNEY GENERAL. 
..END :


















PIPEFITTERS V. UNITED STATES, 407 U.S. 385 


       PIPEFITTERS LOCAL UNION NO. 562 ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 70-74.  ARGUED JANUARY 11, 1972-- DECIDED JUNE 22,
1972 


PETITIONER UNION AND THREE OF ITS OFFICERS WERE CONVICTED OF
CONSPIRACY TO VIOLATE 18 U.S.C. 610, WHICH PROHIBITED A LABOR
ORGANIZATION FROM MAKING A CONTRIBUTION OR AN EXPENDITURE IN CONNECTION
WITH A FEDERAL ELECTION.  EVIDENCE INDICATED THAT THE UNION FROM 1949
THROUGH 1962 MAINTAINED A POLITICAL FUND TO WHICH UNION MEMBERS AND
OTHERS WORKING UNDER THE UNION'S JURISDICTION WERE REQUIRED TO
CONTRIBUTE AND THAT THAT FUND WAS THEN SUCCEEDED BY THE PRESENT FUND,
WHICH WAS, IN FORM, SET UP AS A SEPARATE "VOLUNTARY" ORGANIZATION;
UNION OFFICIALS, NEVERTHELESS, RETAINED UNLIMITED CONTROL OVER THE
FUND, AND NO SIGNIFICANT CHANGE WAS MADE IN THE REGULAR AND SYSTEMATIC
COLLECTION OF CONTRIBUTIONS AT A PRESCRIBED RATE BASED ON HOURS WORKED;
UNION AGENTS, MOREOVER, CONTINUED TO COLLECT DONATIONS AT JOBSITES ON
UNION TIME, AND THE PROCEEDS WERE USED FOR A VARIETY OF PURPOSES,
INCLUDING POLITICAL CONTRIBUTIONS IN CONNECTION WITH FEDERAL ELECTIONS;
THOSE CONTRIBUTIONS, ON THE OTHER HAND, WERE MADE FROM ACCOUNTS
STRICTLY SEGREGATED FROM UNION DUES AND ASSESSMENTS, AND, ALTHOUGH SOME
OF THE CONTRIBUTORS BELIEVED OTHERWISE, DONATIONS TO THE FUND WERE NOT,
IN FACT, NECESSARY FOR EMPLOYMENT OR UNION MEMBERSHIP.  UNDER
INSTRUCTIONS TO DETERMINE WHETHER THE FUND WAS IN REALITY A UNION FUND
OR THE CONTRIBUTORS' FUND, THE JURY FOUND EACH DEFENDANT GUILTY.  THE
COURT OF APPEALS REJECTED PETITIONERS' CHALLENGES, AND HELD THAT THE
FUND WAS A SUBTERFUGE THROUGH WHICH THE UNION MADE POLITICAL
CONTRIBUTIONS OF UNION MONIES IN VIOLATION OF SEC. 610.  THE FEDERAL
ELECTION CAMPAIGN ACT OF 1971, WHICH BECAME EFFECTIVE AFTER ORAL
ARGUMENT HERE, ADDED A PARAGRAPH AT THE END OF SEC. 610 THAT EXPRESSLY
AUTHORIZES LABOR ORGANIZATIONS TO ESTABLISH, ADMINISTER, AND SOLICIT
CONTRIBUTIONS FOR POLITICAL FUNDS, PROVIDED THAT THE FUND NOT MAKE A
CONTRIBUTION OR EXPENDITURE IN CONNECTION WITH A FEDERAL ELECTION BY
UTILIZING MONEY OR ANYTHING OF VALUE SECURED BY PHYSICAL FORCE, JOB
DISCRIMINATION, FINANCIAL REPRISALS, OR THE THREAT THEREOF, OR BY
MONIES REQUIRED AS A CONDITION OF EMPLOYMENT OR UNION MEMBERSHIP. 
HELD: 

1.  SECTION 610, AS CONFIRMED BY THE FEDERAL ELECTION CAMPAIGN ACT,
DOES NOT APPLY TO CONTRIBUTIONS OR EXPENDITURES FROM VOLUNTARILY
FINANCED UNION POLITICAL FUNDS.  A LEGITIMATE POLITICAL FUND MUST BE
SEPARATE FROM THE SPONSORING UNION ONLY IN THE SENSE THAT THERE MUST BE
A STRICT SEGREGATION OF ITS MONIES FROM UNION DUES AND ASSESSMENTS, AND
SOLICITATION BY UNION OFFICIALS, ALTHOUGH PERMISSIBLE, MUST BE
CONDUCTED UNDER CIRCUMSTANCES PLAINLY INDICATING THAT DONATIONS ARE FOR
A POLITICAL PURPOSE AND THAT THOSE SOLICITED MAY DECLINE TO CONTRIBUTE
WITHOUT REPRISAL.  PP. 401-427. 

2.  SECTION 610 MAY BE INTERPRETED TO PROHIBIT THE USE OF GENERAL
UNION MONIES FOR THE ESTABLISHMENT, ADMINISTRATION, OR SOLICITATION OF
CONTRIBUTIONS FOR UNION POLITICAL FUNDS.  BY CLEARLY PERMITTING SUCH
USE, THE FEDERAL ELECTION CAMPAIGN ACT MAY, THEREFORE, HAVE IMPLIEDLY
REPEALED SEC. 610.  PP. 428-432. 

3.  EVEN IF THERE HAS BEEN SUCH AN IMPLIED REPEAL, IT, NEVERTHELESS,
DOES NOT REQUIRE ABATEMENT OF THE PROSECUTION AGAINST PETITIONERS
BECAUSE OF THE FEDERAL SAVING STATUTE,, 1 U.S.C. 109.  UNITED STATES V.
REISINGER, 128 U.S. 398, FOLLOWED.  HAMM V. ROCK HILL, 379 U.S. 306,
DISTINGUISHED.  PP. 432-435. 

4.  THE INSTRUCTIONS TO THE JURY WERE CLEARLY ERRONEOUS BECAUSE THEY
PERMITTED THE JURY TO CONVICT WITHOUT FINDING THAT DONATIONS TO THE
FUND HAD BEEN ACTUAL OR EFFECTIVE DUES OR ASSESSMENTS.  THE SUFFICIENCY
OF THE INDICTMENT IS LEFT OPEN FOR DETERMINATION ON REMAND.  PP. 435
442. 

434 F.2D 1127, VACATED AND REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS INDICTMENT AGAINST PETITIONERS CALLANAN AND
LAWLER, BOTH NOW DECEASED, AND REVERSED AND REMANDED TO THE DISTRICT
COURT AS TO REMAINING PETITIONERS. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, MARSHALL, AND REHNQUIST, JJ., JOINED.  POWELL, J.,
FILED A DISSENTING OPINION, IN WHICH BURGER, C.J., JOINED, POST, P.
442.  BLACKMUN, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS-- PIPEFITTERS LOCAL UNION NO. 562 AND THREE INDIVIDUAL
OFFICERS OF THE UNION-- WERE CONVICTED BY A JURY IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI OF CONSPIRACY UNDER
18 U.S.C. 371 TO VIOLATE 18 U.S.C. 610.  AT THE TIME OF TRIAL SEC. 610
PROVIDED IN RELEVANT PART: 

 "IT IS UNLAWFUL . . . FOR ANY CORPORATION WHATEVER, OR ANY

  LABOR ORGANIZATION TO MAKE A CONTRIBUTION OR EXPENDITURE IN

  CONNECTION WITH ANY ELECTION AT WHICH PRESIDENTIAL AND VICE

  PRESIDENTIAL ELECTORS OR A SENATOR OR REPRESENTATIVE IN . . .

  CONGRESS ARE TO BE VOTED FOR, OR IN CONNECTION WITH ANY PRIMARY

  ELECTION OR POLITICAL CONVENTION OR CAUCUS HELD TO SELECT

  CANDIDATES FOR ANY OF THE FOREGOING OFFICES.  . . . 

     "EVERY CORPORATION OR LABOR ORGANIZATION WHICH MAKES ANY

  CONTRIBUTION OR EXPENDITURE IN VIOLATION OF THIS SECTION SHALL BE

  FINED NOT MORE THAN $5,000; AND EVERY OFFICER OR DIRECTOR OF ANY

  CORPORATION, OR OFFICER OF ANY LABOR ORGANIZATION, WHO CONSENTS

  TO ANY CONTRIBUTION OR EXPENDITURE BY THE CORPORATION OR LABOR

ORGANIZATION, AS THE CASE MAY BE, . . . IN VIOLATION OF THIS

  SECTION, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT

  MORE THAN ONE YEAR, OR BOTH; AND IF THE VIOLATION WAS WILLFUL,

  SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN

  TWO YEARS, OR BOTH. 

     "FOR THE PURPOSES OF THIS SECTION 'LABOR ORGANIZATION' MEANS

 ANY ORGANIZATION OF ANY KIND, OR ANY AGENCY OR EMPLOYEE

 REPRESENTATION COMMITTEE OR PLAN, IN WHICH EMPLOYEES PARTICIPATE

  AND WHICH EXIST (SIC) FOR THE PURPOSE, IN WHOLE OR IN PART, OF

  DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR DISPUTES,

  WAGES, RATES OF PAY, HOURS OF EMPLOYMENT, OR CONDITIONS OF

  WORK."  /1/

THE INDICTMENT CHARGED, IN ESSENCE, THAT PETITIONERS HAD CONSPIRED FROM
1963 TO MAY 9, 1968, TO ESTABLISH AND MAINTAIN A FUND THAT (1) WOULD
RECEIVE REGULAR AND SYSTEMATIC PAYMENTS FROM LOCAL 562 MEMBERS AND
MEMBERS OF OTHER LOCALS WORKING UNDER THE UNION'S JURISDICTION; (2)
WOULD HAVE THE APPEARANCE, BUT NOT THE REALITY OF BEING AN ENTITY
SEPARATE FROM THE UNION; AND (3) WOULD CONCEAL CONTRIBUTIONS AND
EXPENDITURES BY THE UNION IN CONNECTION WITH FEDERAL ELECTIONS IN
VIOLATION OF SEC. 610.  /2/ 

THE EVIDENCE TENDED TO SHOW, IN ADDITION TO DISBURSEMENTS OF ABOUT
$150,000 BY THE FUND TO CANDIDATES IN FEDERAL ELECTIONS, AN IDENTITY
BETWEEN THE FUND AND THE UNION AND A COLLECTION OF WELL OVER $1 MILLION
IN CONTRIBUTIONS TO THE FUND BY A METHOD SIMILAR TO THAT EMPLOYED IN
THE COLLECTION OF DUES OR ASSESSMENTS.  IN PARTICULAR, IT WAS
ESTABLISHED THAT FROM 1949 THROUGH 1962 THE UNION MAINTAINED A
POLITICAL FUND TO WHICH UNION MEMBERS AND OTHERS WORKING UNDER THE
UNION'S JURISDICTION WERE IN FACT REQUIRED TO CONTRIBUTE AND THAT THE
FUND WAS THEN SUCCEEDED IN 1963 BY THE PRESENT FUND, WHICH WAS, IN
FORM, SET UP AS A SEPARATE "VOLUNTARY" ORGANIZATION.  YET, A PRINCIPAL
UNION OFFICER ASSUMED THE ROLE OF DIRECTOR OF THE PRESENT FUND WITH
FULL AND UNLIMITED CONTROL OVER ITS DISBURSEMENTS.  THE UNION'S
BUSINESS MANAGER, PETITIONER LAWLER, BECAME THE FIRST DIRECTOR OF THE
FUND AND WAS LATER SUCCEEDED BY PETITIONER CALLANAN, WHOM ONE LOCAL 562
MEMBER DESCRIBED AS "THE UNION" IN EXPLAINING HIS INFLUENCE WITH THE
LOCAL.  MOREOVER, NO SIGNIFICANT CHANGE WAS MADE IN THE REGULAR AND
SYSTEMATIC METHOD OF COLLECTION OF CONTRIBUTIONS AT A PRESCRIBED RATE
BASED ON HOURS WORKED, AND UNION AGENTS CONTINUED TO COLLECT DONATIONS
AT JOBSITES ON UNION TIME.  IN ADDITION, CHANGES IN THE RATE OF
CONTRIBUTIONS WERE TIED TO CHANGES IN THE RATE OF MEMBERS'
ASSESSMENTS.  IN 1966, FOR EXAMPLE, WHEN ASSESSMENTS WERE INCREASED
FROM 2 1/2% TO 3 3/4% OF GROSS WAGES, THE CONTRIBUTION RATE WAS
DECREASED FROM $1 TO 50[ PER DAY WORKED, WITH THE RESULT THAT THE
CHANGE DID NOT CAUSE, IN THE WORDS OF THE UNION'S EXECUTIVE BOARD, "ONE
EXTRA PENNY COST TO MEMBERS OF LOCAL UNION 562."  AT THE SAME TIME, THE
CONTRIBUTION RATE FOR NONMEMBERS, WHO WERE NOT REQUIRED TO PAY THE
PRESCRIBED TRAVEL CARD FEE FOR WORKING UNDER LOCAL 562'S JURISDICTION,
REMAINED THE SAME AT $2 PER DAY WORKED, APPROXIMATELY MATCHING THE
TOTAL ASSESSMENT AND CONTRIBUTION OF MEMBERS.  FINALLY, IN ADDITION TO
POLITICAL CONTRIBUTIONS, THE FUND USED ITS MONIES FOR NONPOLITICAL
PURPOSES, SUCH AS AID TO FINANCIALLY DISTRESSED MEMBERS ON STRIKE, AND
FOR A PERIOD OF A FEW MONTHS, UPON THE VOTE OF ITS MEMBERS, EVEN
SUSPENDED COLLECTIONS IN FAVOR OF CONTRIBUTIONS TO A SEPARATE GIFT FUND
FOR PETITIONER CALLANAN.  /3/  NOT SURPRISINGLY, VARIOUS WITNESSES
TESTIFIED THAT DURING THE INDICTMENT PERIOD CONTRIBUTIONS TO THE FUND
WERE OFTEN STILL REFERRED TO AS-- AND ACTUALLY UNDERSTOOD BY SOME TO BE
- ASSESSMENTS, OR THAT THEY PAID THEIR CONTRIBUTIONS "VOLUNTARILY"  IN
THE SAME SENSE THAT THEY PAID THEIR DUES OR OTHER FINANCIAL
OBLIGATIONS.  /4/ 

ON THE OTHER HAND, THE EVIDENCE ALSO INDICATED THAT THE POLITICAL
CONTRIBUTIONS BY THE FUND WERE MADE FROM ACCOUNTS STRICTLY SEGREGATED
FROM UNION DUES AND ASSESSMENTS /5/  AND THAT DONATIONS TO THE FUND
WERE NOT, IN FACT, NECESSARY FOR EMPLOYMENT OR UNION MEMBERSHIP.  THE
FUND GENERALLY REQUIRED CONTRIBUTORS TO SIGN AUTHORIZATION CARDS, WHICH
CONTAINED A STATEMENT THAT THEIR DONATIONS WERE "VOLUNTARY . . . (AND)
NO PART OF THE DUES OR FINANCIAL OBLIGATIONS OF LOCAL UNION NO. 562 . .
. ,"  /6/  AND THE TESTIMONY WAS OVERWHELMING FROM BOTH THOSE WHO
CONTRIBUTED AND THOSE WHO DID NOT, AS WELL AS FROM THE COLLECTORS OF
CONTRIBUTIONS, THAT NO SPECIFIC PRESSURE WAS EXERTED, AND NO REPRISALS
WERE TAKEN, TO OBTAIN DONATIONS.  /7/  SIGNIFICANTLY, THE UNION'S
ATTORNEY WHO HAD ADVISED ON THE ORGANIZATION OF THE FUND TESTIFIED ON
CROSS-EXAMINATION THAT HIS ADVICE HAD BEEN THAT PAYMENTS TO THE FUND
COULD NOT BE MADE A CONDITION OF EMPLOYMENT OR LOCAL 562 MEMBERSHIP,
BUT IT WAS IMMATERIAL WHETHER CONTRIBUTIONS APPEARED COMPULSORY TO
THOSE SOLICITED.  /8/ 

UNDER INSTRUCTIONS TO DETERMINE WHETHER ON THIS EVIDENCE THE FUND
WAS IN REALITY A UNION FUND OR THE CONTRIBUTORS' FUND, /9/  THE JURY
FOUND EACH DEFENDANT GUILTY.  THE JURY ALSO FOUND SPECIALLY THAT A
WILLFUL VIOLATION OF SEC. 610 WAS NOT CONTEMPLATED, AND THE TRIAL COURT
IMPOSED SENTENCE ACCORDINGLY.  THE UNION WAS FINED $5,000, WHILE THE
INDIVIDUAL DEFENDANTS WERE EACH SENTENCED TO ONE YEAR'S IMPRISONMENT
AND FINED $1,000. 

ON APPEAL TO THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT,
PETITIONERS CONTENDED THAT THE INDICTMENT FAILED TO ALLEGE, AND THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN, A CONSPIRACY TO VIOLATE SEC. 610,
AND THAT SEC. 610, ON ITS FACE OR AS CONSTRUED AND APPLIED, ABRIDGED
THEIR RIGHTS UNDER THE FIRST, FIFTH, SIXTH, AND SEVENTEENTH AMENDMENTS
AND ART. I, SEC. 2, OF THE CONSTITUTION.  THEY ARGUED FURTHER THAT THE
SPECIAL FINDING BY THE JURY THAT A WILLFUL VIOLATION OF SEC. 610 WAS
NOT CONTEMPLATED EFFECTIVELY RESULTED IN ACQUITTAL, SINCE SUCH
WILLFULNESS WAS AN ESSENTIAL ELEMENT OF THE CONSPIRACY UNDER 18 U.S.C.
371.  THE COURT OF APPEALS IN A FOUR-TO-THREE EN BANC DECISION, 434
F.2D 1127 (1970), ADOPTED JUDGE VANOOSTERHOUT'S PANEL OPINION REJECTING
EACH OF THESE CLAIMS, 434 F.2D 1116 (1970).  THE GIST OF THE COURT'S
DECISION, INSOFAR AS PERTINENT HERE, WAS THAT THE PIPEFITTERS FUND WAS
A SUBTERFUGE THROUGH WHICH THE UNION MADE POLITICAL CONTRIBUTIONS OF
UNION MONIES IN VIOLATION OF SEC. 610, AS DEMONSTRATED BY THE EVIDENCE
THAT THE FUND REGULARLY SERVED UNION PURPOSES AND THAT THE DONORS TO
THE FUND CONTRIBUTED IN THE BELIEF THAT THEIR JOB SECURITY DEPENDED
OPON IT.  WE GRANTED CERTIORARI.  402 U.S. 994 (1971). 

AFTER WE HEARD ORAL ARGUMENT, THE PRESIDENT ON FEBRUARY 7, 1972,
SIGNED INTO LAW THE FEDERAL ELECTION CAMPAIGN ACT OF 1971, WHICH IN
SEC. 205 AMENDS 18 U.S.C. 610, SEE INFRA, AT 409-410, EFFECTIVE APRIL
7, 1972.  SEE FEDERAL ELECTION CAMPAIGN ACT OF 1971, SEC. 406, 86 STAT.
20.  WE, ACCORDINGLY, REQUESTED THE PARTIES TO FILE SUPPLEMENTAL BRIEFS
ADDRESSING THE IMPACT OF THAT AMENDMENT ON THIS PROSECUTION.  /10/
HAVING CONSIDERED THOSE BRIEFS, WE NOW HOLD THAT SEC. 205 OF THE
FEDERAL ELECTION CAMPAIGN ACT MERELY CODIFIES PRIOR LAW, WITH ONE
POSSIBLE EXCEPTION PERTINENT TO THIS CASE; THAT THE CHANGE IN THE LAW,
IF IN FACT MADE, DOES NOT IN ANY EVENT REQUIRE THIS PROSECUTION TO
ABATE; BUT THAT THE JUDGMENT BELOW MUST, NEVERTHELESS, BE REVERSED
BECAUSE OF ERRONEOUS JURY INSTRUCTIONS.  /11/  THIS DISPOSITION MAKES
DECISION OF THE CONSTITUTIONAL ISSUES PREMATURE, AND WE THEREFORE DO
NOT DECIDE THEM.  CF. UNITED STATES V. AUTO WORKERS, 352 U.S. 567
(1957); UNITED STATES V. CIO, 335 U.S. 106 (1948). 

        I 

WE BEGIN WITH AN ANALYSIS OF SEC. 610. 

FIRST.  THE PARTIES ARE IN AGREEMENT THAT SEC. 610, DESPITE ITS
BROAD LANGUAGE, DOES NOT PROHIBIT A LABOR ORGANIZATION FROM MAKING,
THROUGH THE MEDIUM OF A POLITICAL FUND ORGANIZED BY IT, CONTRIBUTIONS
OR EXPENDITURES IN CONNECTION WITH FEDERAL ELECTIONS, SO LONG AS THE
MONIES EXPENDED ARE IN SOME SENSE VOLUNTEERED BY THOSE ASKED TO
CONTRIBUTE.  THUS, THE GOVERNMENT STATES IN ITS BRIEF, "NOR DO WE
DISPUTE (PETITIONERS') CONCLUSION, FOLLOWING THEIR REVIEW OF THE
LEGISLATIVE HISTORY OF SECTION 610, THAT A UNION COULD 'ESTABLISH A
POLITICAL ORGANIZATION FOR THE PURPOSE OF RECEIVING EAR-MARKED
POLITICAL MONIES DIRECTLY FROM (VOLUNTARY CONTRIBUTIONS OF) UNION
MEMBERS.  . . . '" BRIEF FOR THE UNITED STATES 27 N. 7, QUOTING BRIEF
FOR PETITIONERS 62.  SEE ALSO BRIEF FOR THE UNITED STATES 30.  THIS
CONSTRUCTION OF SEC. 610 IS CLEARLY CORRECT.  /12/ 

THE ANTECEDENTS OF SEC. 610 HAVE PREVIOUSLY BEEN TRACED IN UNITED
STATES V. AUTO WORKERS AND UNITED STATES V. CIO, BOTH SUPRA.  WE NEED
RECALL HERE ONLY THAT THE PROHIBITION IN SEC. 313 OF THE FEDERAL
CORRUPT PRACTICES ACT OF 1925, 43 STAT. 1074, ON CONTRIBUTIONS BY
CORPORATIONS IN CONNECTION WITH FEDERAL ELECTIONS WAS EXTENDED TO LABOR
ORGANIZATIONS IN THE WAR LABOR DISPUTES ACT OF 1943, 57 STAT. 163, BUT
ONLY FOR THE DURATION OF THE WAR.  AS THE COURT NOTED IN CIO, SUPRA, AT
115, "IT WAS FELT THAT THE INFLUENCE WHICH LABOR UNIONS EXERCISED OVER
ELECTIONS THROUGH MONETARY EXPENDITURES SHOULD BE MINIMIZED, AND THAT
IT WAS UNFAIR TO INDIVIDUAL UNION MEMBERS TO PERMIT THE UNION
LEADERSHIP TO MAKE CONTRIBUTIONS FROM GENERAL UNION FUNDS TO A
POLITICAL PARTY WHICH THE INDIVIDUAL MEMBER MIGHT OPPOSE."  THE
PROHIBITION ON CONTRIBUTIONS WAS THEN PERMANENTLY ENACTED INTO LAW IN
SEC. 304 OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 159,
WITH THE ADDITION, HOWEVER, OF A PROSCRIPTION ON "EXPENDITURES" AND AN
EXTENSION OF BOTH PROHIBITIONS TO PAYMENTS IN CONNECTION WITH FEDERAL
PRIMARIES AND POLITICAL CONVENTIONS AS WELL AS FEDERAL ELECTIONS
THEMSELVES.  YET, NEITHER PROHIBITION APPLIED TO PAYMENTS BY UNION
POLITICAL FUNDS IN CONNECTION WITH FEDERAL ELECTIONS SO LONG AS THE
FUNDS WERE FINANCED IN SOME SENSE BY THE VOLUNTARY DONATIONS OF THE
UNION MEMBERSHIP.  UNION POLITICAL FUNDS HAD COME TO PROMINENCE IN THE
1944 AND 1946 ELECTION CAMPAIGNS AND HAD BEEN EXTENSIVELY STUDIED BY
SPECIAL COMMITTEES OF BOTH THE HOUSE AND THE SENATE.  AGAINST THE
BACKDROP OF THE COMMITTEE FINDINGS AND RECOMMENDATIONS, THE SENATE
DEBATES UPON THE REACH OF SEC. 304 ATTACHED CONTROLLING SIGNIFICANCE TO
THE VOLUNTARY SOURCE OF FINANCING OF THE FUNDS.  THE UNEQUIVOCAL VIEW
OF THE PROPONENTS OF SEC. 304 WAS THAT THE CONTRIBUTIONS AND
EXPENDITURES OF VOLUNTARILY FINANCED FUNDS DID NOT VIOLATE THAT
PROVISION. 

THE SPECIAL COMMITTEES INVESTIGATING THE 1944 AND 1946 CAMPAIGNS
DEVOTED PARTICULAR ATTENTION TO THE ACTIVITIES OF THE POLITICAL ACTION
COMMITTEE (PAC) OF THE CONGRESS OF INDUSTRIAL ORGANIZATIONS (CIO)
BECAUSE THEY HAD STIRRED CONSIDERABLE PUBLIC CONTROVERSY.  SEE H.R.
REP. NO. 2093, 78TH CONG., 2D SESS., 2-6 (1945); S. REP. NO. 101, 79TH
CONG., 1ST SESS., 20-24, 57-59 (1945); H.R. REP. NO. 2739, 79TH CONG.
2D SESS., 30-31 (1946).  SEE ALSO S. REP. NO. 1, PT. 2, 80TH CONG., 1ST
SESS., 34 (1947).  THE COMMITTEE FINDINGS WERE THAT PAC HAD BEEN
ESTABLISHED BY THE EXECUTIVE BOARD OF THE CIO IN JULY 1943; THAT IT
CONSISTED OF A NATIONAL OFFICE AND 14 REGIONAL OFFICES ADVISING AND
COORDINATING NUMEROUS STATE AND LOCAL POLITICAL ACTION COMMITTEES; THAT
ITS CONNECTION TO THE CIO WAS CLOSE AT EVERY LEVEL OF ORGANIZATION;
THAT ITS PROGRAM, ADOPTED BY THE CIO CONVENTION IN NOVEMBER 1943, HAD
INCLUDED THE RE-ELECTION OF PRESIDENT ROOSEVELT AND THE ELECTION OF A
"PROGRESSIVE" CONGRESS; THAT IT HAD INITIALLY BEEN FINANCED BY SIZABLE
PLEDGES FROM THE TREASURIES OF CIO INTERNATIONAL UNIONS AND THAT SOME
OF THESE FUNDS HAD BEEN EXPENDED IN FEDERAL PRIMARIES; BUT THAT,
FOLLOWING THE NOMINATION IN JULY 1944 OF PRESIDENT ROOSEVELT FOR RE
ELECTION, IT WAS GENERALLY FINANCED BY $1 CONTRIBUTIONS KNOWINGLY AND
FREELY MADE BY INDIVIDUAL CIO MEMBERS; AND THAT THESE MONIES WERE USED
FOR POLITICAL EDUCATIONAL ACTIVITIES, INCLUDING GET-OUT-THE-VOTE
DRIVES, BUT WERE NOT DIRECTLY CONTRIBUTED TO ANY CANDIDATE OR POLITICAL
COMMITTEE.  THUS, PAC HAD LIMITED ITS DIRECT CONTRIBUTIONS IN FEDERAL
CAMPAIGNS TO PRIMARIES, TO WHICH THE ACT AT THE TIME EXPRESSLY DID NOT
APPLY, AND RESTRICTED ITS ACTIVITIES IN THE ELECTIONS THEMSELVES TO SO
CALLED "EXPENDITURES" RATHER THAN "CONTRIBUTIONS."  THE SENATE SPECIAL
COMMITTEE ON CAMPAIGN EXPENDITURES CONCLUDED IN 1945 THAT, IN THESE
CIRCUMSTANCES, THERE WAS "NO CLEAR-CUT VIOLATION" BY PAC OF SEC. 313 OF
THE CORRUPT PRACTICES ACT.  S. REP. NO. 101, SUPRA, AT 23.  ALTHOUGH
THERE WAS AGREEMENT WITHIN THE COMMITTEE THAT SEC. 313 SHOULD BE
EXTENDED TO FEDERAL PRIMARIES AND NOMINATING CONVENTIONS BECAUSE OF
THEIR IMPORTANCE IN DETERMINING FINAL ELECTION RESULTS, ID., AT 81-82,
/13/  THERE WAS DISAGREEMENT ON WHETHER SEC. 313 SHOULD ALSO BE AMENDED
TO PROSCRIBE "EXPENDITURES" IN ADDITION TO "CONTRIBUTIONS."  A MAJORITY
BELIEVED THAT IT SHOULD NOT BE, IN PART BECAUSE THE AMENDMENT "WOULD
TEND TO LIMIT THE RIGHTS OF FREEDOM OF SPEECH, FREEDOM OF THE PRESS,
AND FREEDOM OF ASSEMBLY AS GUARANTEED BY THE FEDERAL CONSTITUTION." 
ID., AT 83.  /14/  SENATORS BALL AND FERGUSON, WHO DISSENTED FROM THIS
CONCLUSION, NEVERTHELESS CONCEDED THAT EVEN AS TO "EXPENDITURES" "(IF
THE POLITICAL ACTION COMMITTEE HAD BEEN ORGANIZED ON A VOLUNTARY BASIS
AND OBTAINED ITS FUNDS FROM VOLUNTARY INDIVIDUAL CONTRIBUTIONS FROM THE
BEGINNING, THERE COULD BE NO QUARREL WITH ITS ACTIVITIES OR PROGRAM AND
IN FACT BOTH ARE DESIRABLE IN A DEMOCRACY."  ID., AT 24.  THE HOUSE
CAMPAIGN EXPENDITURES COMMITTEE IN 1946, HOWEVER, STRONGLY URGED THE
ADOPTION OF A PROHIBITION ON "EXPENDITURES" IN TERMS CONDEMNING THE
ACTIVITIES OF PAC WITHOUT REGARD TO THE SOURCE OF ITS FUNDS.  /15/ 

THEN, IN 1947, CONGRESS MADE PERMANENT THE APPLICATION OF SEC. 313
OF THE CORRUPT PRACTICES ACT TO LABOR ORGANIZATIONS AND CLOSED THE
LOOPHOLES THAT WERE THOUGHT TO HAVE BEEN EXPLOITED IN THE 1944 AND 1946
ELECTIONS.  THESE CHANGES WERE EMBODIED IN SEC. 304 OF THE LABOR BILL
INTRODUCED BY REPRESENTATIVE HARTLEY, WHICH WAS ADOPTED BY THE HOUSE
AND THE CONFERENCE COMMITTEE WITH LITTLE APPARENT DISCUSSION OR
OPPOSITION.  /16/  THE PROVISION, HOWEVER, PROVOKED LENGTHY DEBATE ON
THE SENATE FLOOR WHEN SENATOR TAFT, SPONSOR OF THE SENATE LABOR BILL
AND ONE OF THE SENATE CONFEREES, SOUGHT TO EXPLAIN ITS IMPORT.  THAT
DEBATE COMPELLINGLY DEMONSTRATES THAT VOLUNTARILY FINANCED UNION
POLITICAL FUNDS WERE NOT BELIEVED TO BE PROHIBITED BY THE BROAD WORDING
OF SEC. 304.  THUS, SENATOR TAFT STATED: 

"(IT SEEMS TO ME THE CONDITIONS ARE EXACTLY PARALLEL, BOTH AS TO
CORPORATIONS AND LABOR ORGANIZATIONS.  (AN ASSOCIATION OF
MANUFACTURERS) RECEIVING CORPORATION FUNDS AND USING THEM IN AN
ELECTION WOULD VIOLATE THE LAW, IN MY OPINION, EXACTLY AS THE PAC, IF
IT GOT ITS FUND FROM LABOR UNIONS, WOULD VIOLATE THE LAW.  IF THE LABOR
PEOPLE SHOULD DESIRE TO SET UP A POLITICAL ORGANIZATION AND OBTAIN
DIRECT CONTRIBUTIONS FOR IT, THERE WOULD BE NOTHING UNLAWFUL IN THAT. 
IF THE NATIONAL ASSOCIATION OF MANUFACTURERS, WE WILL SAY, WANTED TO
OBTAIN INDIVIDUAL CONTRIBUTIONS FOR A SERIES OF ADVERTISEMENTS, AND IF
IT, ITSELF, WERE NOT A CORPORATION, THEN, JUST AS IN THE CASE OF PAC,
IT COULD TAKE AN ACTIVE PART IN A POLITICAL CAMPAIGN."  93 CONG.REC. 
6439 (1947).  IN RESPONSE TO A QUESTION BY SENATOR MAGNUSON WHETHER
UNIONS WOULD BE PROHIBITED FROM PUBLISHING A NEWSPAPER "FAVORING A
CANDIDATE, MENTIONING HIS NAME, OR ENDORSING HIM FOR PUBLIC OFFICE,"
TAFT CONTINUED: 

     "NO; I DO NOT THINK IT MEANS THAT.  THE UNION CAN ISSUE A

  NEWSPAPER, AND CAN CHARGE THE MEMBERS FOR THE NEWSPAPER, THAT IS,

  THE MEMBERS WHO BUY COPIES OF THE NEWSPAPER, AND THE UNION CAN

PUT SUCH MATTERS IN THE NEWSPAPER IF IT WANTS TO.  THE UNION CAN

  SEPARATE THE PAYMENT OF DUES FROM THE PAYMENT FOR A NEWSPAPER IF

  ITS MEMBERS ARE WILLING TO DO SO, THAT IS, IF THE MEMBERS ARE

  WILLING TO SUBSCRIBE TO THAT KIND OF A NEWSPAPER.  I PRESUME THE

  MEMBERS WOULD BE WILLING TO DO SO.  A UNION CAN PUBLISH SUCH A

  NEWSPAPER, OR UNIONS CAN DO AS WAS DONE LAST YEAR, ORGANIZE

  SOMETHING LIKE THE PAC, A POLITICAL ORGANIZATION, AND RECEIVE

  DIRECT CONTRIBUTIONS, JUST SO LONG AS MEMBERS OF THE UNION KNOW

  WHAT THEY ARE CONTRIBUTING TO, AND THE DUES WHICH THEY PAY INTO

THE UNION TREASURY ARE NOT USED FOR SUCH PURPOSE."  ID., AT 6440. 

WHEN MAGNUSON REJOINED THAT "ALL UNION MEMBERS KNOW THAT A PART OF
THEIR DUES IN THESE CASES GO FOR THE PUBLICATION OF SOME LABOR
(NEWSPAPER) ORGAN," TAFT CONCLUDED: 

     "YES.  HOW FAIR IS IT?  WE WILL ASSUME THAT 60 PERCENT OF A

UNION'S EMPLOYEES ARE FOR A REPUBLICAN CANDIDATE AND 40 PERCENT

  ARE FOR A DEMOCRATIC CANDIDATE.  DOES THE SENATOR THINK THE UNION

  MEMBERS SHOULD BE FORCED TO CONTRIBUTE, WITHOUT BEING ASKED TO DO

  SO SPECIFICALLY, AND WITHOUT HAVING A RIGHT TO WITHDRAW THEIR

  PAYMENTS, TO THE ELECTION OF SOMEONE WHOM THEY DO NOT FAVOR? 

  ASSUME THE PAPER FAVORS A DEMOCRATIC CANDIDATE WHOM THEY OPPOSE

  OR A REPUBLICAN CANDIDATE WHOM THEY OPPOSE.  WHY SHOULD THEY BE

  FORCED TO CONTRIBUTE MONEY FOR THE ELECTION OF SOMEONE TO WHOSE

ELECTION THEY ARE OPPOSED?  IF THEY ARE ASKED TO CONTRIBUTE

  DIRECTLY TO THE SUPPORT OF A NEWSPAPER OR TO THE SUPPORT OF A

  LABOR POLITICAL ORGANIZATION, THEY KNOW WHAT THEIR MONEY IS TO BE

  USED FOR AND PRESUMABLY APPROVE IT.  FROM SUCH CONTRIBUTION THE

  ORGANIZATION CAN SPEND ALL THE MONEY IT WANTS TO WITH RESPECT TO

  SUCH MATTERS.  BUT THE PROHIBITION IS AGAINST LABOR UNIONS USING

  THEIR MEMBERS' DUES FOR POLITICAL PURPOSES, WHICH IS EXACTLY THE

  SAME AS THE PROHIBITION AGAINST A CORPORATION USING ITS

  STOCKHOLDERS' MONEY FOR POLITICAL PURPOSES, AND PERHAPS IN

  VIOLATION OF THE WISHES OF MANY OF ITS STOCKHOLDERS."  IBID.

SEE ALSO ID., AT 6437, 6438. 

SENATOR TAFT'S VIEW THAT A UNION CANNOT VIOLATE THE LAW BY SPENDING
POLITICAL FUNDS VOLUNTEERED BY ITS MEMBERS WAS CONSISTENT WITH THE
LEGISLATIVE HISTORY OF THE WAR LABOR DISPUTES ACT AND AN EXPRESS
INTERPRETATION GIVEN TO THAT ACT BY THE ATTORNEY GENERAL IN 1944.  /17/
HIS VIEW ALSO REFLECTED CONCERN THAT A BROADER APPLICATION OF SEC. 610
MIGHT RAISE CONSTITUTIONAL QUESTIONS OF INVASION OF FIRST AMENDMENT
FREEDOMS, AND HE WISHED PARTICULARLY TO REASSURE COLLEAGUES WHO HAD
RESERVATIONS ON THAT SCORE AND WHOSE VOTES WERE NECESSARY TO OVERRIDE A
PREDICTABLE PRESIDENTIAL VETO, SEE 93 CONG.REC.  7485, OF THE LABOR
MANAGEMENT RELATIONS ACT.  /18/  WE CONCLUDE, ACCORDINGLY, THAT HIS
VIEW OF THE LIMITED REACH OF SEC. 610, ENTITLED IN ANY EVENT TO GREAT
WEIGHT, IS IN THIS INSTANCE CONTROLLING.  CF. NEWSPAPER PUB. ASSN. V.
NLRB, 345 U.S. 100, 106-111 (1953); BUS EMPLOYEES V. WISCONSIN BOARD,
340 U.S. 383, 392 N. 15 (1951).  WE THEREFORE HOLD THAT SEC. 610 DOES
NOT APPLY TO UNION CONTRIBUTIONS AND EXPENDITURES FROM POLITICAL FUNDS
FINANCED IN SOME SENSE BY THE VOLUNTARY DONATIONS OF EMPLOYEES.  CF.
UNITED STATES V. AUTO WORKERS, 352 U.S.,AT 592; UNITED STATES V. CIO,
335 U.S.,AT 123. 

CONCLUSION BY ADDING AT THE END OF SEC. 610 THE FOLLOWING PARAGRAPH: 

     "AS USED IN THIS SECTION, THE PHRASE 'CONTRIBUTION OR

  EXPENDITURE' SHALL INCLUDE ANY DIRECT OR INDIRECT PAYMENT,

  DISTRIBUTION, LOAN, ADVANCE, DEPOSIT, OR GIFT OF MONEY, OR ANY

  SERVICES, OR ANYTHING OF VALUE (EXCEPT A LOAN OF MONEY BY A

  NATIONAL OR STATE BANK MADE IN ACCORDANCE WITH THE APPLICABLE

  BANKING LAWS AND REGULATIONS AND IN THE ORDINARY COURSE OF

  BUSINESS) TO ANY CANDIDATE, CAMPAIGN COMMITTEE, OR POLITICAL

  PARTY OR ORGANIZATION, IN CONNECTION WITH ANY ELECTION TO ANY OF

  THE OFFICES REFERRED TO IN THIS SECTION; BUT SHALL NOT INCLUDE

  COMMUNICATIONS BY A CORPORATION TO ITS STOCKHOLDERS AND THEIR

  FAMILIES OR BY A LABOR ORGANIZATION TO ITS MEMBERS AND THEIR

  FAMILIES ON ANY SUBJECT; NONPARTISAN REGISTRATION AND

  GET-OUT-THE-VOTE CAMPAIGNS BY A CORPORATION AIMED AT ITS

  STOCKHOLDERS AND THEIR FAMILIES, OR BY A LABOR ORGANIZATION AIMED

  AT ITS MEMBERS AND THEIR FAMILIES; THE ESTABLISHMENT,

  ADMINISTRATION, AND SOLICITATION OF CONTRIBUTIONS TO A SEPARATE

  SEGREGATED FUND TO BE UTILIZED FOR POLITICAL PURPOSES BY A

  CORPORATION OR LABOR ORGANIZATION:  PROVIDED, THAT IT SHALL BE

UNLAWFUL FOR SUCH A FUND TO MAKE A CONTRIBUTION OR EXPENDITURE BY

  UTILIZING MONEY OR ANYTHING OF VALUE SECURED BY PHYSICAL FORCE,

  JOB DISCRIMINATION, FINANCIAL REPRISALS, OR THE THREAT OF FORCE,

  JOB DISCRIMINATION, OR FINANCIAL REPRISAL; OR BY DUES, FEES, OR

  OTHER MONIES REQUIRED AS A CONDITION OF MEMBERSHIP IN A LABOR

  ORGANIZATION OR AS A CONDITION OF EMPLOYMENT, OR BY MONIES

  OBTAINED IN ANY COMMERCIAL TRANSACTION."  86 STAT. 10. 

THIS AMENDMENT STEMMED FROM A PROPOSAL OFFERED BY REPRESENTATIVE HANSEN
ON THE HOUSE FLOOR, SEE 117 CONG.REC.  43379, TO WHICH THE SENATE
ACQUIESCED IN CONFERENCE.  SEE ID., AT 46799 (JOINT CONFERENCE
COMMITTEE REPORT).  HANSEN STATED THAT THE PURPOSE OF HIS PROPOSAL WAS,
WITH ONE EXCEPTION NOT PERTINENT HERE, /19/  "TO CODIFY THE COURT
DECISIONS INTERPRETING (AND THE LEGISLATIVE HISTORY EXPLICATING)
CORPORATION CAN OR CANNOT DO IN CONNECTION WITH A FEDERAL ELECTION." 
/20/  MOREOVER, THERE WAS SUBSTANTIAL AGREEMENT AMONG HIS COLLEAGUES
THAT THE EFFECT OF HIS AMENDMENT WAS, IN FACT, MERE CODIFICATION AND
CLARIFICATION, /21/  AND EVEN THOSE WHO DISAGREED DID NOT DISPUTE THAT
VOLUNTARILY FINANCED UNION POLITICAL FUNDS ARE PERMISSIBLE.  INDEED,
REPRESENTATIVE CRANE, WHO LED THE OPPOSITION TO THE HANSEN AMENDMENT,
/22/  HIMSELF HAD WRITTEN THE HOUSE COMMITTEE PROVISION FOR WHICH THE
HANSEN AMENDMENT WAS, IN EFFECT, SUBSTITUTED.  /23/  MR. CRANE'S
PROVISION, LIKE THE HANSEN AMENDMENT, WAS SAID IN SOME MEASURE TO
CODIFY EXISTING LAW, /24/  AND WOULD ALSO HAVE SPECIFICALLY AUTHORIZED
VOLUNTARY FUNDS.  /25/  THIS CONSENSUS THAT HAS NOW BEEN CAPTURED IN
EXPRESS TERMS IN SEC. 610 CANNOT, OF COURSE, BY ITSELF CONCLUSIVELY
ESTABLISH WHAT CONGRESS HAD IN MIND IN 1947.  BUT IT DOES "'THROW A
CROSS LIGHT'" ON THE EARLIER ENACTMENT THAT, TOGETHER WITH THE LATTER'S
LEGISLATIVE HISTORY, DEMONSTRATES BEYOND DOUBT THE CORRECTNESS OF THE
PARTIES' COMMON GROUND OF INTERPRETATION OF SEC. 610.  MICHIGAN NAT.
BANK V. MICHIGAN, 365 U.S. 467, 481 (1961) (QUOTING L. HAND, J.).  CF.
NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S. 175, 194 (1967); NLRB V.
DRIVERS LOCAL UNION, 362 U.S. 274, 291-292 (1960). 

SECOND.  WHERE THE LITIGANTS PART COMPANY IS IN DEFINING PRECISELY
WHEN POLITICAL CONTRIBUTIONS AND EXPENDITURES BY A UNION POLITICAL FUND
FALL OUTSIDE THE AMBIT OF SEC. 610.  THE GOVERNMENT MAINTAINS, FIRST,
THAT A VALID FUND MAY NOT BE THE ALTER EGO OF THE SPONSORING UNION IN
THE SENSE OF BEING DOMINATED BY IT AND SERVING ITS PURPOSES, REGARDLESS
OF THE FUND'S SOURCE OF FINANCING: 

"SECTION 610 WAS VIOLATED (THE GOVERNMENT EXPLAINS) IF IN FACT THE
(PIPEFITTERS) FUND WAS MERELY A SUBTERFUGE THROUGH WHICH THE UNION
ITSELF MADE PROSCRIBED POLITICAL CONTRIBUTIONS, IRRESPECTIVE OF WHETHER
THE MONEYS SO CONTRIBUTED WERE VOLUNTARILY GIVEN TO THE FUND BY THE
CONTRIBUTORS.  . . . (THE EVIDENCE THAT THE PAYMENTS WERE VOLUNTARY
(WAS ONLY A FACTOR RELEVANT) IN DETERMINING IF IT WAS THE UNION OR THE
FUND AS A SEPARATE ENTITY THAT MADE THE POLITICAL CONTRIBUTIONS IN
QUESTION.  . . . " BRIEF FOR THE UNITED STATES IN OPPOSITION TO THE
PETITION FOR CERTIORARI 7.  SEE ALSO BRIEF FOR THE UNITED STATES 24. 
THE REQUIREMENT THAT THE FUND BE SEPARATE FROM THE SPONSORING UNION
ELIMINATES, IN THE GOVERNMENT'S VIEW, "THE CORRODING EFFECT OF MONEY
EMPLOYED IN ELECTIONS BY AGGREGATED POWERS," UNITED STATES V. AUTO
WORKERS, 352 U.S.,AT 582, WHICH THIS COURT HAS FOUND TO BE ONE OF THE
DUAL PURPOSES UNDERLYING SEC. 610.  SEE ID., PASSION; UNITED STATES V.
CIO, 335 U.S.,AT 113, 115.  THE GOVERNMENT URGES, SECONDLY, THAT IN
ACCORDANCE WITH THE LEGISLATIVE INTENT TO PROTECT MINORITY INTERESTS
FROM OVERBEARING UNION LEADERSHIP, WHICH WE HAVE FOUND TO BE THE OTHER
PURPOSE OF SEC. 610, SEE IBID., THE FUND MAY NOT BE FINANCED BY MONIES
ACTUALLY REQUIRED FOR EMPLOYMENT OR UNION MEMBERSHIP OR BY PAYMENTS
THAT ARE EFFECTIVELY ASSESSED, THAT IS, SOLICITED IN CIRCUMSTANCES
INHERENTLY COERCIVE.  /26/  PETITIONERS, ON THE OTHER HAND, CONTEND
THAT, TO BE VAILD, A POLITICAL FUND NEED NOT BE DISTINCT FROM THE
SPONSORING UNION AND, FURTHER, THAT SEC. 610 PERMITS THE UNION TO
EXERCISE INSTITUTIONAL PRESSURE, MUCH AS RECOGNIZED CHARITIES DO, IN
SOLICITING DONATIONS.  SEE BRIEF FOR PETITIONERS 71, 73 N. 22. 

WE THINK THAT NEITHER SIDE FULLY AND ACCURATELY PORTRAYS THE
ATTRIBUTES OF LEGITIMATE POLITICAL FUNDS.  WE HOLD THAT SUCH A FUND
MUST BE SEPARATE FROM THE SPONSORING UNION ONLY IN THE SENSE THAT THERE
MUST BE A STRICT SEGREGATION OF ITS MONIES FROM UNION DUES AND
ASSESSMENTS.  /27/  WE HOLD, TOO, THAT, ALTHOUGH SOLICITATION BY UNION
OFFICIALS IS PERMISSIBLE, SUCH SOLICITATION MUST BE CONDUCTED UNDER
CIRCUMSTANCES PLAINLY INDICATING THAT DONATIONS ARE FOR A POLITICAL
PURPOSE AND THAT THOSE SOLICITED MAY DECLINE TO CONTRIBUTE WITHOUT LOSS
OF JOB, UNION MEMBERSHIP, OR ANY OTHER REPRISAL WITHIN THE UNION'S
INSTITUTIONAL POWER.  THUS, WE AGREE WITH THE SECOND HALF OF THE
GOVERNMENT'S POSITION, BUT REJECT THE FIRST. 

AS SENATOR TAFT'S REMARKS QUOTED ABOVE INDICATE, SUPRA, AT 406-408,
THE TEST OF VOLUNTARINESS UNDER SEC. 610 FOCUSES ON WHETHER THE
CONTRIBUTIONS SOLICITED FOR POLITICAL USE ARE KNOWING FREE-CHOICE
DONATIONS.  THE DOMINANT CONCERN IN REQUIRING THAT CONTRIBUTIONS BE
VOLUNTARY WAS, AFTER ALL, TO PROTECT THE DISSENTING STOCKHOLDER OR
UNION MEMBER.  WHETHER THE SOLICITATION SCHEME IS DESIGNED TO INFORM
THE INDIVIDUAL SOLICITED OF THE POLITICAL NATURE OF THE FUND AND HIS
FREEDOM TO REFUSE SUPPORT IS, THEREFORE, DETERMINATIVE.     NOWHERE,
HOWEVER, HAS CONGRESS REQUIRED THAT THE POLITICAL ORGANIZATION BE
FORMALLY OR FUNCTIONALLY INDEPEDNENT OF UNION CONTROL OR THAT UNION
OFFICIALS BE BARRED FROM SOLICITING CONTRIBUTIONS OR EVEN PRECLUDED
FROM DETERMINING HOW THE MONIES RAISED WILL BE SPENT.  THE GOVERNMENT'S
ARGUMENT TO THE CONTRARY IN THE FIRST HALF OF ITS POSITION IS BASED ON
A MISUNDERSTANDING OF THE PURPOSES OF SEC. 610.  /28/  WHEN CONGRESS
PROHIBITED LABOR ORGANIZATIONS FROM MAKING CONTRIBUTIONS OR
EXPENDITURES IN CONNECTION WITH FEDERAL ELECTIONS, IT WAS, OF COURSE,
CONCERNED NOT ONLY TO PROTECT MINORITY INTERESTS WITHIN THE UNION BUT
TO ELIMINATE THE EFFECT OF AGGREGATED WEALTH ON FEDERAL ELECTIONS.  BUT
THE AGGREGATED WEALTH IT PLAINLY HAD IN MIND WAS THE GENERAL UNION
TREASURY-- NOT THE FUNDS DONATED BY UNION MEMBERS OF THEIR OWN FREE AND
KNOWING CHOICE.  AGAIN, SENATOR TAFT ADAMANTLY MAINTAINED THAT LABOR
ORGANIZATIONS WERE NOT PROHIBITED FROM EXPENDING THOSE MONIES IN
CONNECTION WITH FEDERAL ELECTIONS.  INDEED, TAFT CLEARLY ESPOUSED THE
UNION POLITICAL ORGANIZATION MERELY AS AN ALTERNATIVE TO PERMISSIBLE
DIRECT POLITICAL ACTION BY THE UNION ITSELF THROUGH PUBLICATIONS
ENDORSING CANDIDATES IN FEDERAL ELECTIONS.  THE ONLY CONDITIONS FOR
THAT KIND OF DIRECT ELECTIONEERING WERE THAT THE COSTS OF PUBLICATION
BE FINANCED THROUGH INDIVIDUAL SUBSCRIPTIONS RATHER THAN THROUGH UNION
DUES AND THAT THE NEWSPAPERS BE RECOGNIZED BY THE SUBSCRIBERS AS
POLITICAL ORGANS THAT THEY COULD REFUSE TO PURCHASE.  /29/  NEITHER THE
ABSENCE OF EVEN A FORMALLY SEPARATE ORGANIZATION, THE SOLICITATION OF
SUBSCRIPTIONS BY THE UNION, NOR THE METHOD FOR CHOOSING THE CANDIDATES
TO BE SUPPORTED WAS MENTIONED AS BEING MATERIAL.  SIMILARLY, THE ONLY
REQUIREMENTS FOR PERMISSIBLE POLITICAL ORGANIZATIONS WERE THAT THEY BE
FUNDED THROUGH SEPARATE CONTRIBUTIONS AND THAT THEY BE RECOGNIZED BY
THE DONORS AS POLITICAL ORGANIZATIONS TO WHICH THEY COULD REFUSE
SUPPORT.  AS TAFT SAID, "IF THE LABOR PEOPLE SHOULD DESIRE TO SET UP A
POLITICAL ORGANIZATION AND OBTAIN DIRECT CONTRIBUTIONS FOR IT, THERE
WOULD BE NOTHING UNLAWFUL IN THAT," "JUST SO LONG AS MEMBERS OF THE
UNION KNOW WHAT THEY ARE CONTRIBUTING TO, AND THE DUES WHICH THEY PAY
INTO THE UNION TREASURY ARE NOT USED FOR SUCH PURPOSES."  SUPRA, AT
406, 407. 

THE OPERATIONS OF PAC, THE ORGANIZATION THAT DOMINATED THE
CONGRESSIONAL INVESTIGATIONS OF THE 1944 AND 1946 CAMPAIGNS AND THAT
WAS EXPRESSLY APPROVED BY THE 80TH CONGRESS, ARE ESPECIALLY INSTRUCTIVE
IN THIS REGARD.  SIGNIFICANTLY, IT WAS EXACTLY THE KNOWING FREE-CHOICE
DONATION TEST OF VOLUNTARINESS THAT PAC SOUGHT SCRUPULOUSLY TO OBSERVE
IN SOLICITING CONTRIBUTIONS.  SIDNEY HILLMAN, CHAIRMAN OF PAC,
TESTIFIED BEFORE THE HOUSE CAMPAIGN EXPENDITURES COMMITTEE IN 1944: 

"(WE HAVE UTILIZED EVERY AVENUE TO TELL THE PEOPLE NOT TO BECOME
OVERENTHUSIASTIC ABOUT COLLECTIONS.  WE WANT THIS CONTRIBUTION ON A
VOLUNTARY BASIS AND WOULD RATHER HAVE NO CONTRIBUTION THAN TO HAVE ANY
TAINT OF COERCION OR EVEN ANY INTERFERENCE.  WE DO NOT WANT ANY MONEY
EXCEPT FROM THOSE WHO WANT TO SEE THE REELECTION OF ROOSEVELT."  /30/
PAC WAS, NEVERTHELESS, GENERALLY REGARDED, NOT AS A FUNCTIONALLY
SEPARATE ORGANIZATION (EXCEPT FOR ITS METHOD OF FINANCING /31/  ), BUT
AS AN INSTRUMENTALITY OF THE CIO, ITSELF SUBSUMED WITHIN THE DEFINITION
OF "LABOR ORGANIZATION."  /32/  IT WAS, AS WE HAVE SEEN, ESTABLISHED BY
THE EXECUTIVE BOARD OF THE CIO, ITS PROGRAM WAS ADOPTED AT THE NATIONAL
CIO CONVENTION, AND ITS RELATIONSHIP TO THE CIO WAS CLOSE AT EVERY
LEVEL OF ORGANIZATION.  /33/  FURTHERMORE, UNION AGENTS GENERALLY
COLLECTED CONTRIBUTIONS, H.R. REP. NO. 2093, 78TH CONG., 2D SESS., 5
(1945), AND THE UNION LEADERSHIP WAS INSTRUMENTAL IN CHOOSING
CANDIDATES TO BE SUPPORTED.  /34/  THUS, FAR FROM BEING A SEPARATE
ORGANIZATION SPROUTING FROM THE DESIRES OF THE RANK AND FILE TO ENGAGE
IN POLITICAL ACTION, PAC, THE PARADIGM UNION POLITICAL FUND, WAS A
MEDIUM FOR ORGANIZED LABOR, CONCEIVED AND ADMINISTERED BY UNION
OFFICIALS, TO PURSUE THROUGH THE POLITICAL FORUM THE GOALS OF THE
WORKING MAN.  /35/  AND THE ONLY PREREQUISITE FOR ITS CONTINUED
OPERATION AFTER ENACTMENT OF SEC. 304 OF THE LABOR MANAGEMENT RELATIONS
ACT WAS THAT IT BE STRICTLY FINANCED BY SOLICITATIONS DESIGNED TO
RESULT IN KNOWING FREE-CHOICE DONATIONS. 

THIS CONCLUSION, TOO, WE FIND CONFIRMED BY SEC. 205 OF THE FEDERAL
ELECTION CAMPAIGN ACT, SUPRA, AT 409-410.  THAT PROVISION EXPRESSLY
AUTHORIZES "THE ESTABLISHMENT, ADMINISTRATION, AND SOLICITATION OF
CONTRIBUTIONS TO A SEPARATE SEGREGATED FUND TO BE UTILIZED FOR
POLITICAL PURPOSES BY A CORPORATION OR LABOR ORGANIZATION.  . . . " THE
PROVISION THEN STATES IN A PROVISO CLAUSE THAT "IT SHALL BE UNLAWFUL
FOR SUCH A FUND TO MAKE A CONTRIBUTION OR EXPENDITURE BY UTILIZING
MONEY OR ANYTHING OF VALUE SECURED BY PHYSICAL FORCE, JOB
DISCRIMINATION, FINANCIAL REPRISALS, OR THE THREAT OF FORCE, JOB
DISCRIMINATION, OR FINANCIAL REPRISAL; OR BY DUES, FEES, OR OTHER
MONIES REQUIRED AS A CONDITION OF MEMBERSHIP IN A LABOR ORGANIZATION OR
AS A CONDITION OF EMPLOYMENT.  . . . " THUS, SEC. 205 PLAINLY PERMITS
UNION OFFICIALS TO ESTABLISH, ADMINISTER, AND SOLICIT CONTRIBUTIONS FOR
A POLITICAL FUND.  THE CONDITIONS FOR THAT ACTIVITY ARE THAT THE FUND
BE "SEPARATE" AND "SEGREGATED" AND THAT ITS CONTRIBUTIONS AND
EXPENDITURES NOT BE FINANCED THROUGH PHYSICAL FORCE, JOB
DISCRIMINATION, OR FINANCIAL REPRISAL OR THE "THREAT" THEREOF, OR
THROUGH "DUES, FEES, OR OTHER MONIES REQUIRED AS A CONDITION OF
MEMBERSHIP IN A LABOR ORGANIZATION OR AS A CONDITION OF EMPLOYMENT." 
THE QUOTED LANGUAGE IS ADMITTEDLY SUBJECT TO CONTRARY INTERPRETATIONS. 
"SEPARATE" COULD (AND NORMALLY WHEN JUXTAPOSED TO "SEGREGATED" WOULD)
BE READ TO MEAN AN APARTNESS BEYOND "SEGREGATED"; "THREAT" COULD BE
CONSTRUED AS REFERRING ONLY TO THE EXPRESSION OF AN ACTUAL INTENTION TO
INFLICT INJURY; AND "DUES, FEES, OR OTHER MONIES REQUIRED AS A
CONDITION OF MEMBERSHIP IN A LABOR ORGANIZATION OR AS A CONDITION OF
EMPLOYMENT" COULD BE INTERPRETED TO MEAN ONLY ACTUAL DUES OR
ASSESSMENTS.  BUT WE THINK THAT THE LEGISLATIVE HISTORY OF SEC. 205
ESTABLISHES THAT "SEPARATE" IS SYNONYMOUS WITH "SEGREGATED"; THAT
"THREAT" INCLUDES THE CREATION OF AN APPEARANCE OF AN INTENT TO INFLICT
INJURY EVEN WITHOUT A DESIGN TO CARRY IT OUT; AND THAT "DUES, FEES, OR
OTHER MONIES REQUIRED AS A CONDITION OF MEMBERSHIP IN A LABOR
ORGANIZATION OR AS A CONDITION OF EMPLOYMENT" INCLUDES CONTRIBUTIONS
EFFECTIVELY ASSESSED EVEN IF NOT ACTUALLY REQUIRED FOR EMPLOYMENT OR
UNION MEMBERSHIP. 

THE HANSEN AMENDMENT WAS AN ALTERNATIVE TO REPRESENTATIVE CRANE'S
PROPOSAL, WHICH DECLARED IN RELEVANT PART, N. 25, SUPRA: 

"NOTHING IN THIS SECTION SHALL PRECLUDE AN ORGANIZATION FROM
ESTABLISHING AND ADMINISTERING A SEPARATE CONTRIBUTORY FUND FOR ANY
POLITICAL PURPOSE . . . , IF ALL CONTRIBUTIONS, GIFTS, OR PAYMENTS TO
SUCH FUND ARE MADE FREELY AND VOLUNTARILY AND ARE UNRELATED TO DUES,
FEES, OR OTHER MONEYS REQUIRED AS A CONDITION OF MEMBERSHIP IN SUCH
ORGANIZATION OR AS A CONDITION OF EMPLOYMENT."  THE DEBATE ON THE
DIFFERENCES BETWEEN THE CRANE AND HANSEN PROVISIONS DID NOT INVOLVE
THIS LANGUAGE WHEN THE HANSEN AMENDMENT WAS FIRST INTRODUCED AND
ADOPTED BY THE HOUSE.  SEE IBID.  AT THAT POINT HANSEN MERELY INDICATED
IN GENERAL EXPLANATION OF HIS AMENDMENT THAT A PERMISSIBLE FUND HAD TO
BE "SEPARATE," WHICH IN CONTEXT CLEARLY MEANT "SEGREGATED," SEE 117
CONG.REC.  43379, /36/  AND THAT, ALTHOUGH THE LAW COULD NOT "CONTROL
THE MENTAL REACTION" OF A UNION MEMBER SOLICITED BY HIS UNION CHIEF,
ID., AT 43381, /37/  THE MONIES OBTAINED HAD TO COME "IN A TRULY
VOLUNTARY MANNER AND WITHOUT THE EMPLOYMENT OF THE KINDS OF THREATS OR
REPRISALS OR OTHER METHODS THAT ARE PROHIBITED BY THIS AMENDMENT." 
IBID.  THUS INTERPRETED, THE HANSEN AMENDMENT, AS ITS AUTHOR EXPLAINED,
SERVED THE TRADITIONAL PURPOSES OF SEC. 601: 

"(THE UNDERLYING THEORY OF SECTION 610 IS THAT SUBSTANTIAL GENERAL
PURPOSE TREASURIES SHOULD NOT BE DIVERTED TO POLITICAL PURPOSES, BOTH
BECAUSE OF THE EFFECT ON THE POLITICAL PROCESS OF SUCH AGGREGATED
WEALTH AND OUT OF CONCERN FOR THE DISSENTING MEMBER OF STOCKHOLDER. 
OBVIOUSLY, NEITHER OF THESE CONSIDERATIONS CUTS AGAINST ALLOWING
VOLUNTARY POLITICAL FUNDS.  FOR NO ONE WHO OBJECTS TO THE
ORGANIZATION'S POLITICS HAS TO LEND HIS SUPPORT, AND THE MONEY
COLLECTED IS THAT INTENDED BY THOSE WHO CONTRIBUTE TO BE USED FOR
POLITICAL PURPOSES AND NOT MONEY DIVERTED FROM ANOTHER SOURCE."  IBID.
NO ONE AT THAT TIME DISPUTED THAT THE CRANE AND HANSEN PROVISIONS WERE
THE SAME IN THESE RESPECTS IN CODIFYING PRIOR LAW. 

AFTER THE CONFERENCE COMMITTEE HAD ADOPTED THE HANSEN AMENDMENT,
HOWEVER, CRANE INSERTED IN THE RECORD A WALL STREET JOURNAL ARTICLE
SUGGESTING THAT THE HANSEN AMENDMENT HAD BEEN INSPIRED BY THE AFL-CIO
TO OVERRULE THE COURT OF APPEALS DECISION IN THIS CASE BY AUTHORIZING A
UNION POLITICAL FUND EVEN IF IT IS NOT SEPARATE AND DISTINCT FROM THE
SPONSORING UNION, AND BY ALTERING THE TEST OF VOLUNTARINESS TO FOCUS ON
THE ABSENCE OF FORCE RATHER THAN ON THE CONTRIBUTOR'S INTENT TO MAKE A
DONATION OF HIS OWN FREE AND KNOWING CHOICE.  SEE 118 CONG.REC.  323
324.  /38/  CRANE DID NOT SIGNIFICANTLY ELABORATE ON THE ARTICLE OR
SPECIFICALLY ENDORSE EACH OF THE PARTICULAR POINTS IT MADE. 

HANSEN REJOINED THAT HE "(STOOD) FULLY BEHIND EVERY WORD OF THE
STATEMENT" HE HAD MADE DURING THE EARLIER DEBATE ON HIS AMENDMENT AND
"(REPEATED) . . . THAT THE PURPOSE AND EFFECT OF MY AMENDMENT IS (SIC)
TO CODIFY AND CLARIFY THE EXISTING LAW AND NOT TO MAKE ANY SUBSTANTIVE
CHANGES IN THE LAW."  ID., AT 328.  /39/  HE STATED FURTHER THAT HIS
"AMENDMENT IS CONSISTENT WITH THE POSITION TAKEN BY THE JUSTICE
DEPARTMENT IN THE BRIEF IT FILED WITH THE U.S. SUPREME COURT IN THE
PIPEFITTER CASE (WHICH CHARGED THAT THE CONTRIBUTIONS TO THE
PIPEFITTERS FUND 'WERE ASSESSED BY THE UNION AS PART OF ITS DUES
STRUCTURE') . . . ," SINCE HIS AMENDMENT PROHIBITED FINANCING POLITICAL
FUNDS THROUGH MONIES REQUIRED FOR EMPLOYMENT OR UNION MEMBERSHIP.  HIS
AMENDMENT, THEREFORE, WOULD NOT HAVE THE EFFECT OF "THWARTING" THAT
PROSECUTION.  ID., AT 328-329.  HANSEN STATED, TOO, THAT HIS "AMENDMENT
IS ALSO CONSISTENT WITH THE PROVISIONS OF THE SO-CALLED CRANE AMENDMENT
DEALING WITH THE LEGALITY OF A SEPARATE, VOLUNTARY POLITICAL FUND." 
IBID.  THE ONLY DIFFERENCE HE APPEARS TO HAVE SEEN BETWEEN HIS
AMENDMENT AND THE TEXT OF THE CRANE PROVISION QUOTED ABOVE WAS THAT THE
ONE MADE EXPLICIT WHAT THE OTHER TREATED IMPLICITLY.  HANSEN
EXPLAINED: 

"(AS SENATOR DOMINICK STATED, SPEAKING IN SUPPORT OF AN AMENDMENT TO

     "'IF A MEMBER WISHES TO PAY MONEY VOLUNTARILY TO A CANDIDATE
OR

  TO A LABOR ORGANIZATION FUND FOR A CANDIDATE OR EVEN TO A FUND

WHICH THE UNION WILL DETERMINE HOW IT IS TO BE SPENT, I HAVE NO

  OBJECTIONS.'  (117 CONG.REC.  29329.  /40/  ) 

      "THE HANSEN AMENDMENT BUILDING ON THIS CONSENSUS TRACKS THIS

  LANGUAGE WITH A SINGLE ADDITION MAKING EXPLICIT WHAT IS IMPLICIT

  IN THE CRANE AMENDMENT-- THAT UNIONS AND CORPORATIONS MAY SOLICIT

  CONTRIBUTIONS TO THESE FUNDS AS LONG AS THEY DO SO WITHOUT

  ATTEMPTING TO SECURE MONEY THROUGH 'PHYSICAL FORCE, JOB

  DISCRIMINATION, FINANCIAL REPRISALS' OR THE THREAT THEREOF.  THUS

  THE HANSEN AMENDMENT DOES NOT BREAK NEW GROUND, IT MERELY WRITES

  CURRENTLY ACCEPTED PRACTICES INTO CLEAR AND EXPLICIT STATUTORY

  LANGUAGE."  ID., AT 329. 

CRANE MADE NO REPLY TO THESE ASSERTIONS. 

WE CONCLUDE FROM THIS LEGISLATIVE HISTORY THAT THE TERM "SEPARATE"
IN THE HANSEN AMENDMENT IS SYNONYMOUS WITH "SEGREGATED."  NOTHING IN
THE LEGISLATIVE HISTORY INDICATES THAT THE WORD IS TO BE UNDERSTOOD IN
ANY OTHER WAY.  TO THE CONTRARY, HANSEN'S COMMENTS IN GENERAL
EXPLANATION OF HIS AMENDMENT SUPPORT THAT INTERPRETATION, AS DOES THE
USE OF THE TERM IN THE CRANE PROVISION, WITH WHICH, HANSEN SAID, HIS
AMENDMENT WAS CONSISTENT.  MOREOVER, HANSEN DID NOT DENY THAT HIS
AMENDMENT DEPARTED FROM THE COURT OF APPEALS' INSISTENCE IN THE
PIPEFITTERS DECISION THAT A PERMISSIBLE POLITICAL FUND BE SEPARATE AND
DISTINCT FROM THE SPONSORING UNION; INSTEAD, HE MERELY FOUND HIS
AMENDMENT CONSISTENT WITH THE GOVERNMENT'S ARGUMENT BEFORE THIS COURT
THAT POLITICAL CONTRIBUTIONS AND EXPENDITURES CANNOT BE MADE FROM DUES
OR ASSESSMENTS.  FINALLY, BOTH THE CRANE AND THE HANSEN AMENDMENTS
EXPRESSLY AUTHORIZE UNIONS TO ESTABLISH AND ADMINISTER VOLUNTARY
POLITICAL FUNDS.  THE HANSEN AMENDMENT ALSO EXPRESSLY AUTHORIZES UNION
OFFICIALS TO SOLICIT CONTRIBUTIONS AND, AS THE QUOTED STATEMENT OF
SENATOR DOMINICK INDICATES, FURTHER PERMITS THEM TO DETERMINE THE
DISPOSITION OF THE MONIES RAISED.  IN THESE CIRCUMSTANCES, IT IS
DIFFICULT TO CONCEIVE HOW A VALID POLITICAL FUND CAN BE MEANINGFULLY
"SEPARATE" FROM THE SPONSORING UNION IN ANY WAY OTHER THAN
"SEGREGATED." 

SIMILARLY, WE CONCLUDE THAT THE TERM "THREAT" AND THE PHRASE "DUES,
FEES, OR OTHER MONIES REQUIRED AS A CONDITION OF MEMBERSHIP IN A LABOR
ORGANIZATION OR AS A CONDITION OF EMPLOYMENT" MUST BE READ BROADLY TO
ENCOMPASS SOLICITATION SCHEMES THAT DO NOT MAKE PLAIN THE POLITICAL
NATURE OF THE UNION FUND AND THE FREEDOM OF THE INDIVIDUAL SOLICITED TO
REFUSE TO CONTRIBUTE WITHOUT REPRISAL.  THE TERM AND THE PHRASE, IN
OTHER WORDS, INCLUDE APPARENT AS WELL AS ACTUAL THREATS AND DUES OR
ASSESSMENTS RESPECTIVELY.  AGAIN, HANSEN'S EXPLANATORY STATEMENTS ARE
ALL CONSISTENT WITH THAT INTERPRETATION.  EVEN HIS OBSERVATION THAT THE
LAW CANNOT "CONTROL THE MENTAL REACTION"  OF A UNION MEMBER APPROACHED
BY A UNION OFFICIAL SEEMS BETTER TAKEN SIMPLY AS JUSTIFICATION FOR
ALLOWING SOLICITATION BY UNION OFFICIALS AT ALL RATHER THAN AS
CONDONING THE USE OF TACIT FORCE OR PRESSURE.  MOREOVER, IF THE HANSEN
AMENDMENT IS TO BE CONSTRUED, AS HANSEN INDICATED IT SHOULD BE, IN PARI
MATERIA WITH THE CRANE PROVISION, IT, TOO, MUST REQUIRE THAT DONATIONS
BE MADE "FREELY AND VOLUNTARILY."  LIKEWISE, IF THE AMENDMENT IS MEANT,
AS HANSEN SAID IT WAS, TO EMBRACE THE GOVERNMENT'S POSITION IN THIS
CASE, WE MERELY IMPLEMENT HIS PURPOSE BY INTERPRETING "DUES, FEES, OR
OTHER MONIES REQUIRED AS A CONDITION OF MEMBERSHIP IN A LABOR
ORGANIZATION OR AS A CONDITION OF EMPLOYMENT" AS INCLUDING NOT ONLY
ACTUAL BUT ALSO EFFECTIVE DUES OR ASSESSMENTS. 

CONSTRUED, AS WE HAVE DONE, SEC. 205 OF THE FEDERAL ELECTION
CAMPAIGN ACT DOES NOTHING MORE THAN ACCOMPLISH THE EXPRESSED PURPOSE OF
ITS AUTHOR-- THAT IS, CODIFY AND CLARIFY PRIOR LAW.  BUT SINCE WE HAVE
ARRIVED AT OUR INTERPRETATION WITHOUT REFERENCE TO PRIOR LAW, SEC. 205
ONCE AGAIN THROWS ON SEC. 610 AS EMBODIED IN SEC. 304 OF THE LABOR
MANAGEMENT RELATIONS ACT "A CROSS LIGHT" THAT CONFIRMS OUR
UNDERSTANDING OF THE LAW APPLICABLE TO THIS PROSECUTION. 

THIRD.  ARGUABLY, HOWEVER, THERE IS ONE CHANGE EFFECTED BY SEC. 205
MATERIAL TO THIS CASE, AND THAT IS WITH REGARD TO THE USE OF GENERAL
UNION MONIES FOR THE ESTABLISHMENT, ADMINISTRATION, AND SOLICITATION OF
CONTRIBUTIONS FOR POLITICAL FUNDS.  SECTION 304 OF THE LABOR MANAGEMENT
RELATIONS ACT MAY BE INTERPRETED TO PROHIBIT SUCH USE, WHILE THE HANSEN
AMENDMENT PLAINLY PERMITS IT. 

AS WE HAVE SEEN, SUPRA, AT 403, PAC WAS INITIALLY FINANCED FROM
GENERAL UNION TREASURIES.  AFTER THE NOMINATION OF PRESIDENT ROOSEVELT
FOR RE-ELECTION, HOWEVER, THE COSTS OF ADMINISTRATION OF PAC AS WELL AS
ITS POLITICAL EXPENDITURES WERE MAINLY, ALTHOUGH NOT ENTIRELY, FINANCED
FROM A SEGREGATED ACCOUNT OF VOLUNTARY INDIVIDUAL DONATIONS.  THE HOUSE
CAMPAIGN EXPENDITURES COMMITTEE EXPLAINED IN ITS 1945 REPORT, H.R. REP.
NO. 2093, 78TH CONG. 2D SESS., 5 (1945): 

"(IT IS NOT . . . POSSIBLE COMPLETELY TO SEPARATE THE RESOURCES AND
FACILITIES MADE AVAILABLE TO THE POLITICAL ACTION COMMITTEE EVEN AFTER
JULY 23, 1944 (WHEN ROOSEVELT BECAME A CANDIDATE FOR RE-ELECTION), FROM
THOSE OF THE CONGRESS OF INDUSTRIAL ORGANIZATIONS AND ITS UNIONS.  ON
THE NATIONAL LEVEL AND IN MOST STATES THAT SEPARATION APPEARS TO HAVE
BEEN PRESERVED SO FAR AS CASH INCOME AND CASH EXPENDITURES FOR STRICTLY
POLITICAL ACTION COMMITTEE AS DISTINGUISHED FROM UNION ACTIVITIES ARE
CONCERNED.  THE LOCAL DISTRIBUTION OF POLITICAL ACTION COMMITTEE
LITERATURE, FOR EXAMPLE, HAS BEEN LARGELY HANDLED BY VOLUNTEERS ON
THEIR OWN TIME; AND THE CONTRIBUTIONS HAVE LARGELY BEEN TAKEN BY SHOP
STEWARDS OUTSIDE WORKING HOURS.  BUT NO SUCH SEPARATION HAS PROVED
POSSIBLE WHERE THE USE OF UNION OFFICES /41/  AND OFFICE PERSONNEL IS
CONCERNED.  UNION PERSONNEL ASSIGNED TO FULL-TIME POLITICAL ACTION
COMMITTEE WORK HAVE TYPICALLY BEEN TRANSFERRED FROM THE UNION TO THE
POLITICAL ACTION COMMITTEE PAY ROLL.  BUT THE PART TIME POLITICAL
ACTION COMMITTEE SERVICES OF PERSONS WHO ARE BOTH UNION AND POLITICAL
ACTION COMMITTEE OFFICERS CANNOT BE THUS READILY SEGREGATED."  IN
ENDORSING PAC IN THE ENACTMENT OF SEC. 304 OF THE LABOR MANAGEMENT
RELATIONS ACT, CONGRESS CLEARLY HAD IN MIND PAC'S FINANCIAL STRUCTURE
AFTER JULY 1944.  CONGRESS, THEREFORE, MAY HAVE CONSIDERED THAT PAC'S
ACTIVITIES IN THE FUTURE COULD BE FINANCED ONLY FROM VOLUNTARY
DONATIONS SEPARATE FROM UNION DUES AND ASSESSMENTS, EXCEPT FOR
INCIDENTAL EXPENSES SUCH AS OFFICE SPACE AND PART-TIME PERSONNEL. 
ALTERNATIVELY, IN VIEW OF THE EMPHASIS ON PROTECTING MINORITY UNION
INTERESTS AND MAINTAINING A STRICT SEGREGATION OF FUNDS, CONGRESS MAY
HAVE THOUGHT THAT ALL OF PAC'S ACTIVITIES, INCLUDING THE COSTS OF
ADMINISTRATION AND SOLICITATION OF CONTRIBUTIONS, HAD TO BE PAID FOR
EXCLUSIVELY FROM VOLUNTARY CONTRIBUTIONS.  THE EVIDENCE IS STRONG AT
LEAST THAT CONGRESS BELIEVED THE COSTS OF ORGANIZATION OF NEW UNION
POLITICAL FUNDS HAD TO BE FINANCED IN THAT WAY.  SEE, E.G., S. REP. NO.
101, 79TH CONG., 1ST SESS., 24 (1945) (STATEMENT BY SENS.  BALL AND
FERGUSON, QUOTED, SUPRA, AT 404). 

IN CONTRAST, THE HANSEN AMENDMENT PROVIDES THAT "IT SHALL BE
UNLAWFUL FOR SUCH A FUND TO MAKE A CONTRIBUTION OR EXPENDITURE BY
UTILIZING MONEY OR ANYTHING OF VALUE SECURED" IN A PROHIBITED WAY. 
CONCEIVABLY THIS LANGUAGE COULD BE READ TO FORBID MAKING CONTRIBUTIONS
OR EXPENDITURES THROUGH THE ESTABLISHMENT OR ADMINISTRATION OF A
POLITICAL FUND OR THROUGH THE SOLICITATION OF DONATIONS FINANCED BY
GENERAL UNION MONIES.  BUT THAT IS NEITHER THE PLAIN MEANING NOR, AS
THE LEGISLATIVE HISTORY OF SEC. 205 SHOWS, THE INTENDED CONSTRUCTION OF
THE PROVISION.  WHEN THE HANSEN AMENDMENT WAS FIRST INTRODUCED, ITS
SPONSOR EXPLAINED: 

     "AS A FURTHER SAFEGUARD (AGAINST THE USE OF A COMPULSORY FUND

FOR POLITICAL PURPOSES) THE PROVISO ALSO MAKES IT A VIOLATION FOR

  SUCH A FUND TO MAKE A CONTRIBUTION OR EXPENDITURE FROM MONEY

  COLLECTED AS DUES OR OTHER FEES REQUIRED AS A CONDITION OF

  MEMBERSHIP OR EMPLOYMENT OR OBTAINED THROUGH COMMERCIAL

  TRANSACTIONS.  THIS INSURES THAT ANY MONEY, SERVICE, OR TANGIBLE

  ITEM-- SUCH AS A TYPEWRITER, XEROX MACHINE, AND SO FORTH--

  PROVIDED TO A CANDIDATE BY SUCH A FUND MUST BE FINANCED BY THE

  VOLUNTARY POLITICAL DONATIONS IT HAS COLLECTED."  117

  CONG.REC.  43381. 

AT NO POINT IN THE DEBATE ON SEC. 205 DID HANSEN SUGGEST THAT HIS
AMENDMENT WAS TO BE READ MORE BROADLY THAN THIS, DESPITE THE FACT THAT
THE WALL STREET JOURNAL ARTICLE INSERTED IN THE RECORD BY
REPRESENTATIVE CRANE SPECIFICALLY CHARGED THAT "UNION CHIEFS COULD USE
DUES MONEY TO PAY FOR THE SOLICITING.  . . . " 118 CONG.REC.  323. 
FURTHERMORE, THE EXEMPTION FOR THE ESTABLISHMENT, ADMINISTRATION, AND
SOLICITATION OF CONTRIBUTIONS FOR VOLUNTARY POLITICAL FUNDS WAS BUT ONE
OF THREE EXCEPTIONS TO THE GENERAL RULE PROHIBITING CORPORATIONS AND
LABOR ORGANIZATIONS FROM MAKING CONTRIBUTIONS OR EXPENDITURES IN
CONNECTION WITH FEDERAL ELECTIONS.  THE OTHER TWO EXCEPTIONS WERE
COMMUNICATIONS TO, AND NONPARTISAN REGISTRATION AND GET-OUT-THE-VOTE
CAMPAIGNS AIMED AT, STOCKHOLDERS OR UNION MEMBERS AND THEIR FAMILIES. 
IN EXPLAINING THE THREE EXEMPTIONS, HANSEN CLEARLY REGARDED EACH OF
THEM AS A PERMISSIBLE ACTIVITY TO BE FINANCED BY GENERAL UNION FUNDS,
FOR EACH, IN HIS VIEW, WAS AN ACTIVITY WHERE GROUP INTERESTS
PREDOMINATED /42/  AND "THE INTEREST OF THE MINORITY (WAS) WEAKEST.  .
. . "  117 CONG. REC. 43380. 

     "AT THE PRESENT TIME (HANSEN SUMMARIZED) THERE IS BROAD

  AGREEMENT AS TO THE ESSENCE OF THE PROPER BALANCE IN REGULATING

  CORPORATE AND UNION POLITICAL ACTIVITY REQUIRED BY SOUND POLICY

AND THE CONSTITUTION.  IT CONSISTS OF A STRONG PROHIBITION ON THE

  USE OF CORPORATE AND UNION TREASURY FUNDS TO REACH THE GENERAL

  PUBLIC IN SUPPORT OF, OR OPPOSITION TO, FEDERAL CANDIDATES AND A

  LIMITED PERMISSION TO CORPORATIONS AND UNIONS, ALLOWING THEM TO

  COMMUNICATE FREELY WITH MEMBERS AND STOCKHOLDERS ON ANY SUBJECT,

  TO ATTEMPT TO CONVINCE MEMBERS AND STOCKHOLDERS TO REGISTER AND

  VOTE, AND TO MAKE POLITICAL CONTRIBUTIONS AND EXPENDITURES

  FINANCED BY VOLUNTARY DONATIONS WHICH HAVE BEEN KEPT IN A

  SEPARATE SEGREGATED FUND.  THIS AMENDMENT WRITES THAT BALANCE

  INTO CLEAR AND UNEQUIVOCAL STATUTORY LANGUAGE."  ID., AT 43381. 

THUS, SEC. 205 MAY IN ONE RESPECT HAVE IMPLIEDLY REPEALED THE
SUBSTANTIVE LAW RELATING TO THIS PROCESUTION.  /43/  BUT WE NEED NOT
NOW DECIDE THAT QUESTION, BECAUSE EVEN IF THERE HAS BEEN SUCH AN
IMPLIED REPEAL, IT WOULD NOT AFFECT THIS PROSECUTION FOR REASONS TO
WHICH WE NOW TURN. 

        II 

THE RULE IS WELL ESTABLISHED THAT PROSECUTIONS UNDER STATUTES
IMPLIEDLY OR EXPRESSLY REPEALED WHILE THE CASE IS STILL PENDING ON
DIRECT REVIEW MUST ABATE IN THE ABSENCE OF A DEMONSTRATION OF CONTRARY
CONGRESSIONAL INTENT OR A GENERAL SAVING STATUTE.  FOR, "(PROSECUTION
FOR CRIMES IS BUT AN APPLICATION OR ENFORCEMENT OF THE LAW, AND IF THE
PROSECUTION CONTINUES THE LAW MUST CONTINUE TO VIVIFY IT."  UNITED
STATES V. CHAMBERS, 291 U.S. 217, 226 (1934).  THIS DOCTRINE HAD ITS
EARLIEST EXPRESSION IN UNITED STATES V. SCHOONER PEGGY, 1 CRANCH 103
(1801), AND HAS SINCE "BEEN CONSISTENTLY RECOGNIZED AND APPLIED BY THIS
COURT."  BELL V. MARYLAND, 378 U.S. 226, 231 N. 2 (1964).  AS CHIEF
JUSTICE HUGHES OBSERVED IN CHAMBERS, SUPRA, AT 226, "THE PRINCIPLE
INVOLVED IS . . . NOT ARCHAIC BUT RATHER IS CONTINUING AND VITAL,--
THAT THE PEOPLE ARE FREE TO WITHDRAW THE AUTHORITY THEY HAVE CONFERRED
AND, WHEN WITHDRAWN, . . . THE COURTS (CANNOT) ASSUME THE RIGHT TO
CONTINUE TO EXERCISE IT." 

IN THIS CASE, HOWEVER, ALTHOUGH WE DO NOT FIND A DEMONSTRATION OF
CONTRARY CONGRESSIONAL INTENT THAT WOULD OVERCOME APPLICATION OF THIS
RULE IF APPLICABLE, /44/  WE DO HOLD THAT THE GENERAL FEDERAL SAVING
STATUTE, 61 STAT. 635, 1 U.S.C. 109, OPERATES TO NULLIFY ANY ABATEMENT
OF THE PROSECUTION.  THAT STATUTE PROVIDES IN PERTINENT PART: 

     "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." 

IN UNITED STATES V. REISINGER, 128 U.S. 398 (1888), THE COURT REVIEWED
AN INDICTMENT, RETURNED IN 1885, ALLEGING THAT THE DEFENDANT, AN
ATTORNEY, HAD IN 1883 CHARGED CLIENTS IN PENSION CASES AGAINST THE
GOVERNMENT $100 AND $50 RESPECTIVELY IN VIOLATION OF A $10 MAXIMUM FEE
ESTABLISHED BY ACT OF CONGRESS, JUNE 20, 1878, 20 STAT. 243.  DESPITE
THE FACT THAT CONGRESS HAD EXPRESSLY REPEALED THAT ACT AND RAISED THE
MAXIMUM PERMISSIBLE FEE IN PENSION CASES TO $25 IN 1884, ACT OF
CONGRESS, JULY 4, 1884, SEC. 3, 23 STAT. 99, THE COURT SUSTAINED THE
INDICTMENT ON THE BASIS OF THE FEDERAL SAVING STATUTE.  IN HAMM V. ROCK
HILL, 379 U.S. 306 (1964), ON THE OTHER HAND, WE HELD THAT THE SAVING
STATUTE WOULD NOT NULLIFY ABATEMENT OF FEDERAL PROSECUTIONS FOR
TRESPASS IN PUBLIC LUNCHEON FACILITIES FOLLOWING ENACTMENT OF THE
PUBLIC ACCOMMODATION REQUIREMENTS OF THE CIVIL RIGHTS ACT OF 1964.  WE
EXPLAINED, ID., AT 314:     "THE FEDERAL SAVING STATUTE WAS ORIGINALLY
ENACTED IN 1871, 16 STAT. 432.  IT WAS MEANT TO OBVIATE MERE TECHNICAL
ABATEMENT SUCH AS THAT ILLUSTRATED BY THE APPLICATION OF THE RULE IN
(UNITED STATES V. TYNEN, 11 WALL.  88,) DECIDED IN 1871.  THERE A
SUBSTITUTION OF A NEW STATUTE WITH A GREATER SCHEDULE OF PENALITIES WAS
HELD TO ABATE THE PREVIOUS PROSECUTION.  IN CONTRAST, THE CIVIL RIGHTS
ACT WORKS NO SUCH TECHNICAL ABATEMENT.  IT SUBSTITUTES A RIGHT FOR A
CRIME.  SO DRASTIC A CHANGE IS WELL BEYOND THE NARROW LANGUAGE OF
AMENDMENT AND REPEAL.  IT IS CLEAR, THEREFORE, THAT IF THE CONVICTIONS
WERE UNDER A FEDERAL STATUTE THEY WOULD BE ABATED."     THE INSTANT
CASE IS CONTROLLED BY REISINGER RATHER THAN BY HAMM.  SECTION 205 OF
THE FEDERAL ELECTION CAMPAIGN ACT MAY, OF COURSE, MAKE LAWFUL WHAT WAS
PREVIOUSLY UNLAWFUL-- NAMELY, THE FINANCING OF THE ESTABLISHMENT,
ADMINISTRATION, AND SOLICITATION OF CONTRIBUTIONS FOR VOLUNTARY
POLITICAL FUNDS FROM GENERAL UNION MONIES.  BUT SEC. 205 DOES NOT, IN
ANY EVENT, "(SUBSTITUTE) A RIGHT FOR A CRIME."  TO THE CONTRARY, AS IN
REISINGER AND TYNEN, IT RETAINS THE BASIC OFFENSE-- CONTRIBUTIONS OR
EXPENDITURES BY LABOR ORGANIZATIONS IN CONNECTION WITH FEDERAL
ELECTIONS ARE STILL FORBIDDEN SO LONG AS THEY ARE PAID FOR FROM ACTUAL
OR EFFECTIVE DUES OR ASSESSMENTS.  WE THEREFORE HOLD THAT EVEN IF THERE
HAS BEEN AN IMPLIED REPEAL OF SEC. 610, PETITIONERS REMAIN PUNISHABLE
UNDER THAT PROVISION.  WE TURN NOW TO DETERMINE WHETHER THE CONVICTIONS
BELOW HAVE BEEN RETURNED CONSISTENTLY WITH THAT LAW. 

        III 

THE GOVERNMENT URGES: 

"THE ESSENTIAL CHARGE OF THE INDICTMENT AND THE THEORY ON WHICH THE
CASE WAS TRIED WAS THAT THE (PIPEFITTERS) FUND, ALTHOUGH FORMALLY SET
UP AS AN ENTITY INDEPENDENT OF LOCAL 562, WAS IN FACT A UNION FUND,
CONTROLLED BY THE UNION, CONTRIBUTIONS TO WHICH WERE ASSESSED BY THE
UNION AS PART OF ITS DUES STRUCTURE, COLLECTED FROM NON-MEMBERS IN LIEU
OF DUES, AND EXPENDED, WHEN DEEMED NECESSARY, FOR UNION PURPOSES AND
THE PERSONAL USE OF THE DIRECTORS OF THE FUND."  BRIEF FOR THE UNITED
STATES 23.  SEE ALSO BRIEF FOR THE UNITED STATES IN OPPOSITION TO THE
PETITION FOR CERTIORARI 11-12.  /45/  THIS WAS INDEED, AS WE SHALL
SHORTLY SEE, THE THEORY ON WHICH THE INDICTMENT WAS DRAWN, THE JURY WAS
INSTRUCTED, AND PETITIONERS' CONVICTIONS WERE AFFIRMED.  IT IS ALSO THE
CONSTRUCTION OF SEC. 610 THAT WE HAVE REJECTED IN FAVOR OF THE
GOVERNMENT'S NARROWER CONSTRUCTION THAT THE PREREQUISITE FOR A
PERMISSIBLE POLITICAL FUND IS SIMPLY THAT IT NOT BE FINANCED BY ACTUAL
OR EFFECTIVE DUES OR ASSESSMENTS.  SEE SUPRA, AT 413-414.  ON THE OTHER
HAND, WE FIND THAT THE INDICTMENT MAY BE READ TO ALLEGE NOT ONLY THAT
THE PIPEFITTERS FUND WAS "A UNION FUND, CONTROLLED BY THE UNION," BUT
THAT "CONTRIBUTIONS TO (IT) WERE ASSESSED BY THE UNION AS PART OF ITS
DUES STRUCTURE, (AND WERE) COLLECTED FROM NON-MEMBERS IN LIEU OF DUES. 
. . . " FOR REASONS THAT FOLLOW, HOWEVER, WE DO NOT NOW CONSTRUE THE
INDICTMENT AS MAKING THIS ESSENTIAL ALLEGATION, BUT LEAVE THAT QUESTION
OPEN FOR DETERMINATION ON REMAND.  WE HOLD NOW ONLY THAT THE JURY
INSTRUCTIONS FAILED TO REQUIRE PROOF OF THE ESSENTIAL ELEMENT FOR
CONVICTION, AND HENCE REVERSE THE JUDGMENT BELOW. 

FIRST.  PETITIONERS MOVED BEFORE TRIAL TO DISMISS THE INDICTMENT ON
THE FOLLOWING GROUND, APP. 28: 

     "THE GIST OF THE INDICTMENT IS TO ALLEGE THAT SECTION 610 . .
.

  PROHIBITS LABOR UNIONS FROM FORMING PARALLEL POLITICAL

  ORGANIZATIONS WHICH RECEIVE VOLUNTARY CONTRIBUTIONS FROM THE

  MEMBERS OF THE UNION TO BE CONTRIBUTED AND EXPENDED IN FEDERAL

  ELECTIONS.  CONGRESS INTENDED SUCH POLITICAL ORGANIZATIONS TO BE

  LEGALLY AUTHORIZED.  THUS, THE INDICTMENT FAILS TO STATE AN

  OFFENSE.  .

. . " PETITIONERS ALSO MOVED FOR A BILL OF PARTICULARS, ID., AT 30: 

"WHETHER IT IS THE GOVERNMENT'S POSITION AND THEORY OF THE CASE THAT
THE MERE FACT THAT THE (PIPEFITTERS FUND) WAS ESTABLISHED, MAINTAINED,
AND ADMINISTERED BY MEMBERS, OFFICERS, EMPLOYEES, AGENTS, FOREMEN AND
SHOP (STEWARDS) OF LOCAL 562 IS, IN AND OF ITSELF, SUFFICIENT TO MAKE
SAID FUND, UNDER THE LAW, A FUND OF LOCAL 562(;) . . . WHETHER OR NOT
IT IS THE GOVERNMENT'S POSITION THAT SECTION 610 . . . PROHIBITS THE
MEMBERS, OFFICERS, EMPLOYEES, AGENTS, FOREMEN AND SHOP (STEWARDS) OF A
UNION FROM ESTABLISHING ANY POLITICAL ORGANIZATION OR FUND FOR THE
PURPOSE OF MAKING CONTRIBUTIONS AND EXPENDITURES IN CONNECTION WITH
(FEDERAL) ELECTIONS . . . (;) . . . WHETHER IT IS THE GOVERNMENT'S
POSITION AND THEORY OF THE CASE THAT THE ALLEGED 'REGULAR AND
SYSTEMATIC COLLECTION, RECEIPT, AND EXPENDITURES OF MONEY OBTAINED FROM
WORKING MEMBERS OF LOCAL 562 AND FROM WORKING MEMBERS OF OTHER LABOR
ORGANIZATIONS EMPLOYED UNDER JURISDICTION OF THE DEFENDANT LOCAL 562'
WERE VOLUNTARY OR INVOLUNTARY COLLECTIONS AND CONTRIBUTIONS."  /46/ 

HC437 

IN A MEMORANDUM IN OPPOSITION TO THE MOTION TO DISMISS, THE
GOVERNMENT ACKNOWLEDGED PETITIONERS' ARGUMENT "THAT THE INDICTMENT IS
DEFECTIVE IN THAT IT DOES NOT ALLEGE THAT THE FUNDS INVOLVED WERE NOT
VOLUNTARY" AND TOOK THE POSITION THAT "(PROOF OF THE OFFENSE CHARGED
HERE DOES NOT DEPEND UPON WHETHER THE FUNDS WERE VOLUNTEERED OR NOT BY
UNION MEMBERS.  THE ISSUE IS WHETHER THESE FUNDS WERE THE GENERAL FUNDS
OF LOCAL 562," ID., AT 56, WHICH THE INDICTMENT, IN THE GOVERNMENT'S
VIEW, IMPLIEDLY CHARGED IN ALLEGING THAT PETITIONERS "'UNLAWFULLY,
WILFULLY AND KNOWINGLY DID CONSPIRE AND AGREE WITH EACH OTHER . . . TO
VIOLATE SECTION 610.  . . . '" ID., AT 54.  THE TRIAL COURT OVERRULED
EACH OF PETITIONERS' MOTIONS WITHOUT OPINION. 

ON APPEAL THE COURT OF APPEALS ADOPTED THE GOVERNMENT'S THEORY OF
THE CASE.  FIRST, IT RULED THAT BY IMPLICATION "(THE GIST OF THE
GOVERNMENT'S CLAIM AS REFLECTED BY THE INDICTMENT IS THAT THE MONEY IN
THE FUND IS IN TRUTH AND IN FACT MONEY BELONGING TO LOCAL 562."  434
F.2D,AT 1120.  /47/  THE COURT THEN HELD, IBID: 

     "THE FAILURE OF THE INDICTMENT TO ALLEGE THAT THE PAYMENTS TO

  THE FUND WERE INVOLUNTARY IS NOT FATAL.  . . . IF (THE ALLEGATION

THAT THE MONEY IN THE FUND IS IN FACT UNION MONEY) IS ESTABLISHED

  BY THE EVIDENCE, THE ISSUE OF WHETHER THE PAYMENT TO THE FUND IS

  VOLUNTARY OR INVOLUNTARY IS NOT CONTROLLING. 

     "OF COURSE AS OBSERVED BY THE (TRIAL) COURT IN ITS

  INSTRUCTIONS, THE ISSUE OF WHETHER THE PAYMENTS TO THE FUND WERE

  VOLUNTARY IS RELEVANT AND MATERIAL ON THE ISSUE OF WHETHER THE

  FUND IS THE PROPERTY OF LOCAL 562.  OTHER CONSIDERATIONS SUCH AS

  THE INTENTION OF THE DONORS AS TO OWNERSHIP AND CONTROL OF THE

  FUND ALSO BEAR UPON THE ISSUE." 

THIS ACCOUNT OF THE PROCEEDINGS BELOW INDICATES THAT THE QUESTION OF
THE VOLUNTARINESS OF THE CONTRIBUTIONS TO THE PIPEFITTERS FUND WAS
REGARDED BOTH AT TRIAL AND ON APPEAL AS A MATTER RELATING TO, BUT NOT
ESSENTIAL FOR THE BASIC CHARGE OF THE INDICTMENT THAT LOCAL 562
CONCEALED POLITICAL CONTRIBUTIONS OF UNION MONIES THROUGH THE
SUBTERFUGE OF A UNION-CONTROLLED FUND.  THIS THEORY, OF COURSE, FLIES
IN THE FACE OF THE LEGISLATIVE HISTORY OF SEC. 610.  THE IMPRESSIVE
LESSON OF THAT HISTORY IN THIS REGARD IS THAT THE POLITICAL
CONTRIBUTIONS IN ISSUE VIOLATED SEC. 610 IF, AND ONLY IF, PAYMENTS TO
THE FUND WERE ACTUALLY OR EFFECTIVELY REQUIRED FOR EMPLOYMENT OR UNION
MEMBERSHIP.  IN OTHER WORDS, THE ESSENCE OF THE CRIME IN THIS RESPECT
IS WHETHER THE METHOD OF SOLICITATION FOR THE FUND WAS CALCULATED TO
RESULT IN KNOWING FREE-CHOICE DONATIONS.  WHETHER THE FUND WAS
OTHERWISE CONTROLLED BY THE UNION IS IMMATERIAL. 

WE THINK, NEVERTHELESS, THAT THE INDICTMENT MAY BE READ,
CONSISTENTLY WITH THE PROPER INTERPRETATION OF SEC. 610, TO ALLEGE THAT
THE CONTRIBUTIONS TO THE PIPEFITTERS FUND DERIVED FROM EFFECTIVE DUES
OR ASSESSMENTS.  /48/  BUT WHETHER THE INDICTMENT SHOULD NOW BE
CONSTRUED IN LIGHT OF THE PROCEEDINGS BELOW TO MAKE THIS ALLEGATION IS
AN ALTOGETHER DIFFERENT QUESTION.  /49/  SINCE THIS PRECISE QUESTION
WAS NOT ADDRESSED BELOW AND HAS NOT BEEN BRIEFED OR ARGUED BEFORE US
AND SINCE THE CASE MUST, IN ANY EVENT, BE REMANDED, WHEREUPON THE ISSUE
MAY BECOME MOOT, /50/  WE DO NOT NOW UNDERTAKE TO DECIDE IT.  INSTEAD,
IN THE EVENT THAT THE GOVERNMENT CHOOSES TO PROCEED WITH THE INDICTMENT
BEFORE US, PETITIONERS SHALL HAVE LEAVE TO RENEW THEIR MOTION TO
DISMISS. 

SECOND.  THE JURY INSTRUCTIONS EMBODY AN INTERPRETATION OF SEC. 610
THAT IS PLAINLY ERRONEOUS.  THE TRIAL COURT REFUSED REQUESTS BY
PETITIONERS FOR INSTRUCTIONS THAT THE JURY SHOULD ACQUIT IF IT FOUND
THAT CONTRIBUTIONS TO THE PIPEFITTERS FUND WERE MADE VOLUNTARILY.  /51/
ADOPTING A CONTRARY VIEW, THE COURT INSTRUCTED THE JURY, OVER
PETITIONERS' OBJECTIONS, THAT IT SHOULD RETURN VERDICTS OF GUILTY IF
THE FUND "WAS IN FACT A UNION FUND, . . . THE MONEY THEREIN WAS UNION
MONEY, AND . . . THE REAL CONTRIBUTOR TO THE CANDIDATES WAS THE
UNION."  "IN DETERMINING WHETHER THE PIPEFITTERS VOLUNTARY FUND WAS A
BONA FIDE FUND, SEPARATE AND DISTINCT FROM THE UNION OR A MERE ARTIFICE
OR DEVICE," THE JURY WAS FURTHER INSTRUCTED TO "TAKE INTO CONSIDERATION
ALL THE FACTS AND CIRCUMSTANCES IN EVIDENCE, AND IN SUCH CONSIDERATION
. . . (TO) CONSIDER" 19 FACTORS, SEVERAL OF WHICH RELATED TO THE
REGULARITY, RATE, METHOD OF COLLECTION, AND SEGREGATION FROM UNION
MONIES OF PAYMENTS TO THE FUND.  OTHERS CONCERNED THE KINDS OF
EXPENDITURES THE FUND MADE AND THE UNION'S CONTROL OVER THEM.  STILL
OTHERS INVOLVED WHETHER THE PAYMENTS TO THE FUND WERE MADE
VOLUNTARILY.  IN THE LATTER REGARD THE COURT CHARGED: 

     "A GREAT DEAL OF EVIDENCE HAS BEEN INTRODUCED ON THE QUESTION

  OF WHETHER THE PAYMENTS INTO THE PIPEFITTERS VOLUNTARY . . . FUND

  BY MEMBERS OF LOCAL 562 AND OTHERS WORKING UNDER ITS JURISDICTION

  WERE VOLUNTARY OR INVOLUNTARY.  THIS EVIDENCE IS RELEVANT FOR

  YOUR CONSIDERATION, ALONG WITH ALL OTHER FACTS AND CIRCUMSTANCES

IN EVIDENCE, IN DETERMINING WHETHER THE FUND IS A UNION FUND. 

  HOWEVER, THE MERE FACT THAT THE PAYMENTS INTO THE FUND MAY HAVE

  BEEN MADE VOLUNTARILY BY SOME OR EVEN ALL OF THE CONTRIBUTORS

  THERETO DOES NOT, OF ITSELF, MEAN THAT THE MONEY SO PAID INTO THE

  FUND WAS NOT UNION MONEY."  SEE N. 9, SUPRA.

ON APPEAL THE COURT OF APPEALS DID NOT ADDRESS THE VALIDITY OF THESE
INSTRUCTIONS OTHER THAN TO AGREE WITH THE TRIAL JUDGE THAT "THE ISSUE
OF WHETHER THE PAYMENTS TO THE FUND WERE VOLUNTARY IS RELEVANT AND
MATERIAL (BUT NOT DETERMINATIVE) ON THE ISSUE OF WHETHER THE FUND IS
THE PROPERTY OF LOCAL 562."  SUPRA, AT 438. 

THE INSTRUCTIONS, AS THE COURT OF APPEALS CONFIRMED, CLEARLY
PERMITTED THE JURY TO CONVICT WITHOUT FINDING THAT DONATIONS TO THE
PIPEFITTERS FUND HAD BEEN ACTUAL OR EFFECTIVE DUES OR ASSESSMENTS. 
THIS WAS PLAIN ERROR.  /52/ 

THE JUDGMENT OF THE COURT OF APPEALS AS TO PETITIONERS CALLANAN AND
LAWLER IS VACATED, AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO DISMISS THE INDICTMENT AGAINST THEM.  SEE N. 11, SUPRA.
THE JUDGMENT OF THE COURT OF APPEALS AS TO PETITIONERS LOCAL 562 AND
SEATON IS REVERSED, AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR
PROCEEDINGS AS TO THEM CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SECTION 371, IN TURN, PROVIDED: 

"IF TWO OR MORE PERSONS CONSPIRE . . . TO COMMIT ANY OFFENSE AGAINST
THE UNITED STATES . . . 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. 

"IF, HOWEVER, THE OFFENSE, THE COMMISSION OF WHICH IS THE OBJECT OF
THE CONSPIRACY, IS A MISDEMEANOR ONLY, THE PUNISHMENT FOR SUCH
CONSPIRACY SHALL NOT EXCEED THE MAXIMUM PUNISHMENT PROVIDED FOR SUCH
MISDEMEANOR." 

/2/  OMITTING THE OVERT ACTS CHARGED, THE INDICTMENT, FILED MAY 9,
1968, STATED IN RELEVANT PART:

"THE GRAND JURY CHARGES: 

"1.  THAT AT ALL TIMES HEREINAFTER MENTIONED DEFENDANT PIPEFITTERS
LOCAL UNION NO. 562, ST. LOUIS, MISSOURI, (HEREINAFTER REFERRED TO AS
LOCAL 562), AFFILIATED WITH THE UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO (HEREINAFTER REFERRED TO AS THE UNITED
ASSOCIATION), WAS A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION
610 OF TITLE 18, U.S.C.  THAT IS TO SAY, AN ORGANIZATION IN WHICH
EMPLOYEES PARTICIPATED AND WHICH EXISTED, IN PART, FOR THE PURPOSE OF
DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR DISPUTES, WAGES,
RATES OF PAY, HOURS OF EMPLOYMENT, OR CONDITIONS OF WORK. 

        .          .          .     . 

"3.  THAT FROM ON OR ABOUT OCTOBER 12, 1966, UP TO AND INCLUDING THE
DATE OF THE FILING OF THIS INDICTMENT, DEFENDANT LAWRENCE L. CALLANAN
WAS AN OFFICER OF DEFENDANT LOCAL 562. 

"4.  THAT AT ALL TIMES HEREINAFTER MENTIONED DEFENDANT JOHN L.
LAWLER WAS AN OFFICER OF DEFENDANT LOCAL 562. 

"5.  THAT AT ALL TIMES HEREINAFTER MENTIONED, DEFENDANT GEORGE
SEATON WAS AN OFFICER OF DEFENDANT LOCAL 562. 

        .  .          .          . 

"7.  THAT AT ALL TIMES HEREINAFTER MENTIONED, THE PIPEFITTERS
VOLUNTARY, POLITICAL, EDUCATIONAL, LEGISLATIVE, CHARITY AND DEFENSE
FUND (HEREINAFTER THE FUND), WAS A FUND OF DEFENDANT LOCAL 562,
ESTABLISHED, MAINTAINED, AND ADMINISTERED BY OFFICERS, EMPLOYEES,
MEMBERS, AGENTS, FOREMEN AND JOB STEWARDS OF DEFENDANT LOCAL 562, TO
EFFECT A REGULAR AND SYSTEMATIC COLLECTION, RECEIPT, AND EXPENDITURE OF
MONEYS OBTAINED FROM WORKING MEMBERS OF DEFENDANT LOCAL 562 AND FROM
WORKING MEMBERS OF OTHER LABOR ORGANIZATIONS EMPLOYED UNDER THE
JURISDICTION OF DEFENDANT LOCAL 562. 

        .          .        .          . 

"9.  THAT FROM IN OR ABOUT 1963 AND CONTINUOUSLY THEREAFTER UP TO
AND INCLUDING THE DATE OF THE FILING OF THIS INDICTMENT, IN THE CITY OF
ST. LOUIS, IN THE EASTERN DISTRICT OF MISSOURI AND ELSEWHERE, LOCAL
562, LAWRENCE L. CALLANAN, JOHN L. LAWLER AND GEORGE SEATON, THE
DEFENDANTS HEREIN, AND JOHN F. BURKE AND EDWARD J. STESKA, NAMED HEREIN
AS CO-CONSPIRATORS BUT NOT AS DEFENDANTS, UNLAWFULLY, WILFULLY AND
KNOWINGLY DID CONSPIRE AND AGREE WITH EACH OTHER AND WITH DIVERS OTHER
PERSONS TO THE GRAND JURORS UNKNOWN, TO VIOLATE SECTION 610 OF TITLE
18, U.S.C. IN THAT THEY DID UNLAWFULLY, WILFULLY, AND KNOWINGLY
CONSPIRE AND AGREE TO HAVE LOCAL 562 MAKE CONTRIBUTIONS AND
EXPENDITURES IN CONNECTION WITH ELECTIONS AT WHICH PRESIDENTIAL AND
VICE PRESIDENTIAL ELECTORS OR UNITED STATES SENATORS AND
REPRESENTATIVES TO CONGRESS WERE TO BE VOTED FOR, AND TO WILFULLY
CONSENT TO THE MAKING OF SUCH CONTRIBUTIONS AND EXPENDITURES BY LOCAL
562.     "10.  IT WAS A PART OF SAID CONSPIRACY THAT THE DEFENDANTS AND
CO-CONSPIRATORS WOULD ESTABLISH AND MAINTAIN A SPECIAL FUND ENTITLED
'PIPEFITTERS VOLUNTARY POLITICAL, EDUCATIONAL, LEGISLATIVE, CHARITY AND
DEFENSE FUND,' WHICH FUND WOULD HAVE THE APPEARANCE OF BEING A WHOLLY
INDEPENDENT ENTITY, SEPARATE AND APART FROM LOCAL 562; AND THAT THE
DEFENDANTS AND CO-CONSPIRATORS WOULD THEREBY CONCEAL THE FACT THAT
LOCAL 562 WOULD MAKE CONTRIBUTIONS AND EXPENDITURES IN CONNECTION WITH
ELECTIONS AT WHICH PRESIDENTIAL AND VICE PRESIDENTIAL ELECTORS OR
UNITED STATES SENATORS AND REPRESENTATIVES TO CONGRESS WERE TO BE VOTED
FOR. 

"11.  IT WAS FURTHER A PART OF THE CONSPIRACY THAT DEFENDANT JOHN L.
LAWLER WOULD BE DIRECTOR OF THE FUND AND THAT A CERTAIN TIME HE WOULD
BE SUCCEEDED AS DIRECTOR OF THE FUND BY DEFENDANT LAWRENCE L. CALLANAN;
AND THAT THE DIRECTOR OF THE FUND WOULD APPEAR TO HAVE CONTROL AND
MANAGEMENT OF THE FUND, INCLUDING THE RECEIPT AND DISBURSEMENT OF MONEY
AND THE KEEPING OF ITS BOOKS. 

"12.  IT WAS FURTHER A PART OF THE CONSPIRACY THAT DEFENDANTS JOHN
L. LAWLER AND LAWRENCE L. CALLANAN WOULD NOT HAVE THE BOOKS OF THE FUND
AUDITED, OR AFFORD MEMBERS OF DEFENDANT LOCAL 562 AND OTHER PIPEFITTERS
CONTRIBUTING TO THE FUND ANY ACCOUNTING FOR THE MONEY ON HAND, PAID
INTO OR DISBURSED FROM THE FUND. 

"13.  IT WAS FURTHER A PART OF THE CONSPIRACY THAT THE DEFENDANTS
AND CO-CONSPIRATORS, BY MEANS OF THE CREATION AND OPERATION OF THE
FUND, WOULD CONTINUE IN NEW FORM THE PRACTICE OF COLLECTING FOR
POLITICAL PURPOSES ONE DOLLAR ($1.00) PER DAY WORKED FROM MEMBERS OF
DEFENDANT LOCAL 562 AND TWO DOLLARS ($2.00) PER DAY WORKED FROM NON
MEMBER PIPEFITTERS EMPLOYED ON JOBS WITHIN THE JURISDICTION OF
DEFENDANT LOCAL 562. 

"14.  IT WAS FURTHER A PART OF THE CONSPIRACY THAT THE DEFENDANTS
AND CO-CONSPIRATORS WOULD WAIVE AND FAIL TO ENFORCE SECTION 180 OF THE
CONSTITUTION OF THE UNITED ASSOCIATION IN ORDER TO FACILITATE THE
PAYMENT OF MONIES INTO THE FUND, BY FAILING TO COLLECT FROM NON-MEMBERS
OF LOCAL 562, WORKING UNDER ITS JURISDICTION, A REQUIRED TRAVEL CARD
FEE OF NOT IN EXCESS OF EIGHT DOLLARS ($8.00) PER MONTH, AND IN LIEU
THEREOF, COLLECTING PAYMENTS TO THE FUND AT THE RATE OF TWO DOLLARS
($2.00) PER EIGHT-HOUR WORKING DAY FROM SUCH NON-MEMBERS. 

"15.  IT WAS FURTHER A PART OF THE CONSPIRACY THAT THE DEFENDANTS
AND CO-CONSPIRACTORS WOULD CAUSE GENERAL FOREMEN, AREA FOREMEN, JOB
STEWARDS, OFFICERS, AGENTS, EMPLOYEES AND OTHER MEMBERS OF LOCAL 562
ACTING IN A SUPERVISORY CAPACITY OVER MEMBERS AND PIPEFITTERS WORKING
ON JOBS UNDER THE JURISDICTION OF LOCAL 562, TO BECOME AGENTS OF THE
FUND IN ORDER TO FACILITATE THE COLLECTION OF MONIES FOR THE FUND ON A
REGULAR BASIS ON JOB SITES AND AT THE HEADQUARTERS OF LOCAL 562, 1242
PIERCE AVENUE, ST. LOUIS, MISSOURI. 

"16.  IT WAS FURTHER A PART OF THE CONSPIRACY THAT THE DEFENDANTS
AND CO-CONSPIRATORS, IN ORDER TO FACILITATE AN ORDERLY, REGULAR AND
SYSTEMATIC COLLECTION OF CONTRIBUTIONS TO THE FUND, WOULD CAUSE THE
AGENTS OF THE FUND, REFERRED TO IN PARAGRAPH 15 OF THIS INDICTMENT TO
DISTRIBUTE TO THE PIPEFITTERS WORKING AT ALL JOB SITES CONTRIBUTION
AGREEMENT CARDS TO BE SIGNED BY SUCH PIPEFITTERS, AND TO DISTRIBUTE TO
FOREMEN AND JOB STEWARDS AT SUCH JOB SITES PRINTED COLLECTION SHEETS
FOR THE FUND UPON WHICH TO RECORD THE NUMBER OF HOURS WORKED BY SUCH
PIPEFITTERS AND THE AMOUNT OF THE CONTRIBUTIONS PAID BY EACH INTO THE
FUND; AND THAT SUCH FOREMEN OR JOB STEWARDS WOULD ADVISE NEWLY EMPLOYED
PIPEFITTERS AT SUCH JOB SITES OF THE EXISTENCE OF THE FUND AND OF THE
RATES OF PARTICIPATION, THAT IS, FOR MEMBERS OF LOCAL 562, ONE DOLLAR
($1.00) PER EIGHT HOURS WORKED; AND AFTER JANUARY 1, 1965, FIFTY CENTS
($.50) PER EIGHT HOURS WORKED, AND FOR MEMBERS OF OTHER PIPEFITTER
LOCALS TWO DOLLARS ($2.00) PER EIGHT HOURS WORKED. 

"17.  IT WAS FURTHER A PART OF THE CONSPIRACY THAT DEFENDANT LOCAL
562 WOULD MAKE SUBSTANTIAL CONTRIBUTIONS IN CONNECTION WITH THE 1964
GENERAL ELECTION AND THE 1966 GENERAL ELECTION AND THAT DEFENDANTS
LAWRENCE L. CALLANAN AND JOHN L. LAWLER WOULD CONSENT TO SUCH
CONTRIBUTIONS BY ISSUING CHECKS DRAWN UPON THE ACCOUNT OF THE FUND IN
THE APPROXIMATE TOTAL AMOUNT OF ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000)." 

/3/  THESE FACTS PETITIONERS, IN ESSENCE, CONCEDE: 

"IT WAS UNDISPUTED THAT CONTRIBUTIONS TO THE FUND WERE ROUTINELY
MADE AT REGULAR INTERVALS AT JOB SITES; THAT THEY WERE ROUTINELY
COLLECTED BY UNION STEWARDS, FOREMEN, AREA FOREMEN, GENERAL FOREMEN, OR
OTHER AGENTS OF THE UNION; THAT THEY WERE DETERMINED BY A FORMULA UPON
THE AMOUNT OF HOURS OR OVERTIME HOURS WORKED UPON A JOB UNDER THE
JURISDICTION OF THE UNION; THAT THEY WERE AT ONE RATE FOR 562 MEMBERS
AND AT A DIFFERENT RATE FOR MEMBERS OF OTHER UNIONS; THAT THEY BEGAN,
CONTINUED AND TERMINATED WITH EMPLOYMENT ON A JOB UNDER THE
JURISDICTION OF THE UNION; THAT MONIES OF THE FUND WERE USED TO PROVIDE
BENEFITS TO UNION MEMBERS (AS WELL AS TO MAKE POLITICAL CONTRIBUTIONS);
THAT MONIES OF THE FUND WERE USED IN PART TO PROMOTE ACTIVITIES
PERMITTED TO THE UNION BY ITS CONSTITUTION AND BY-LAWS; THAT
CONTRIBUTIONS TO THE FUND WERE ONLY REQUESTED AND RECEIVED FROM
JOURNEYMAN PIPEFITTERS WORKING ON JOBS UNDER THE JURISDICTION OF LOCAL
562, AND NOT FROM ANY OTHER CLASSES OF PERSONS OR ORGANIZATIONS; THAT
EXPENDITURES FROM THE FUND WERE UNDER THE CONTROL OF ITS DIRECTOR WHO
WAS ALSO THE PRINCIPAL OFFICER OF THE UNION; AND THAT RECORDS USED IN
THE COLLECTION OF THE CONTRIBUTIONS TO THE FUND WERE SIMILAR TO THOSE
EMPLOYED FROM TIME TO TIME BY THE UNION IN THE COLLECTION OF ITS
REGULAR DUES AND ASSESSMENTS."  BRIEF FOR PETITIONERS 52-53. 

/4/  SEE APP. 197, 212; 270, 281-283; 294; 318, 323-324; 427, 432;
457, 462; 619-621; 698-699; 746; 843; 893; 903.  JUDGE VANOOSTERHOUT'S
PANEL OPINION, ADOPTED BY THE MAJORITY IN THE REHEARING EN BANC BELOW,
434 F.2D 1127 (1970), SUCCINCTLY MAKES THE POINT:  "IT WOULD APPEAR TO
BE UNREALISTIC TO BELIEVE THAT SUCH A LARGE NUMBER OF WORKMEN WOULD
MAKE SUCH SUBSTANTIAL VOLUNTARY CONTRIBUTIONS TO BE USED FOR POLITICAL
PURPOSES UNLESS THEY FELT THAT THEIR JOB SECURITY REQUIRED THEM SO TO
DO."  434 F.2D 1116, 1122 (1970). 

/5/  IT ALSO APPEARS THAT THE COSTS OF ADMINISTRATION OF THE FUND,
INCLUDING THE SOLICITATION OF CONTRIBUTIONS, WERE TO SOME EXTENT,
THOUGH BY NO MEANS ENTIRELY, SIMILARLY FINANCED.  SEE, E.G., APP. 17
(INDICTMENT APPRENTLY CHARGING FUND DISBURSEMENTS TO PAY FOR
AUTHORIZATION CARDS, SEE N. 6, INFRA, AND COLLECTION SHEETS); 95-96,
99, 513 (ONE-TIME FUND EMPLOYEE CONTINUING TO ASSIST IN FUND
BOOKKEEPING ACTIVITIES IN EVENINGS AND ON SATURDAYS WHILE ON UNION
WELFARE FUND PAYROLL); 107-111 (ANOTHER EMPLOYEE ASSISTING IN FUND
BOOKKEEPING AND COLLECTION ACTIVITIES WHILE ON UNION WELFARE FUND
PAYROLL BEFORE BECOMING FULL-TIME FUND EMPLOYEE); 154 PASSIM (UNION
AGENT COLLECTING CONTRIBUTIONS ON UNION TIME); 787 (CALLANAN NEVER ON
UNION AND FUND PAYROLLS AT SAME TIME). 

/6/  THE AUTHORIZATION CARD READ, BRIEF FOR PETITIONERS 21-22: 

"VOLUNTARY CONTRIBUTION AGREEMENT 

"I, THE UNDERSIGNED, OF MY OWN FREE WILL AND ACCORD, DESIRE TO MAKE
REGULAR CONTRIBUTIONS TO THE POLITICAL, EDUCATION, LEGISLATIVE, CHARITY
AND DEFENSE FUND WHICH HAS BEEN ESTABLISHED AND WILL BE MAINTAINED BY
PERSONS WHO ARE MEMBERS OF LOCAL UNION NO. 562. 

"I, THEREFORE, AGREE TO HEREAFTER CONTRIBUTE ..% PER 8 HOUR DAY TO
SAID FUND AND AUTHORIZE MY CONTRIBUTIONS TO BE USED AND EXPENDED BY
THOSE IN CHARGE OF THE FUND, IN THEIR SOLE JUDGMENT AND DISCRETION, FOR
POLITICAL, EDUCATIONAL, LEGISLATIVE, CHARITY AND DEFENSE PURPOSES. 

"I UNDERSTAND THAT CONTRIBUTIONS ARE VOLUNTARY ON MY PART AND THAT I
MAY REVOKE THIS AGREEMENT BY A WRITTEN NOTICE TO THAT EFFECT MAILED TO
THE FUND OR TO PERSONS IN CHARGE THEREOF.  I ALSO UNDERSTAND THAT MY
CONTRIBUTIONS ARE NO PART OF THE DUES OR FINANCIAL OBLIGATIONS OF LOCAL
UNION NO. 562 AND THAT THE UNION HAS NOTHING WHATSOEVER TO DO WITH THIS
FUND. 

      "SIGNED . . .

              "DATE:  . . . "WITNESS . . . " 

/7/  SEE APP. 171-172; 189-190; 239-240, 244-245; 256, 259-260; 299,
311; 322-323; 347; 359-361, 363-365; 382-384; 404, 411; 446; 460; 481
483; 529; 541, 543; 554-555; 561-562; 566, 570-571; 572-573; 577-578;
581; 584-585; 593-594; 600-602, 606; 617; 633-634; 641; 653; 659; 663;
685; 689; 694; 700-702; 705; 710; 715; 718; 723; 731; 752-753; 766;
835; 840; 845-847; 850; 854; 858; 860; 865-866; 869, 871; 872; 875;
877; 887; 889; 894; 902; 915; 919; 925; 930; 944, 947; 948; 953; 956;
962.  THE ONLY CONTRARY EVIDENCE WAS THE TESTIMONY OF WILLIAM COPELAND,
ID., AT 194-213, A NON-562 MEMBER WHO WAS LAID OFF FROM A JOB TWO DAYS
AFTER REFUSING TO CONTRIBUTE WHEN THE UNION STEWARD EXPLAINED THAT
EVERYONE HAD TO PAY.  A CO-WORKER, HOWEVER, WHO WAS ALSO A NON-562
MEMBER, BUT PAID HIS CONTRIBUTIONS, WAS DISCHARGED AT THE SAME TIME,
AND ALTHOUGH HE WAS SHORTLY THEREAFTER PUT ON ANOTHER 562 JOB, COPELAND
DID NOT RETURN TO THE UNION HIRING HALL FOR FURTHER WORK.  MOREOVER,
COPELAND ACKNOWLEDGED ON CROSS-EXAMINATION THAT HE HAD "STRONG
FEELINGS" AGAINST LOCAL 562, NOT ONLY BECAUSE OF THE POLITICAL FUND,
BUT BECAUSE OF AN EARLIER DISMISSAL AT ANOTHER JOB INVOLVING A
JURISDICTIONAL DISPUTE BETWEEN 562 AND HIS OWN UNION. 

/8/  THE CROSS-EXAMINATION WAS AS FOLLOWS, ID., AT 1067-1068: 

"Q.  WAS IT OF ANY CONCERN TO YOU AS TO WHAT THE MEMBERS WHO WERE
BEING SOLICITED THOUGHT ABOUT IT, THE ATMOSPHERE IN WHICH THE
SOLICITATION WAS MADE, WAS THAT OF ANY CONCERN TO YOU? 

"A.  NONE, BECAUSE IT MADE NO DIFFERENCE AS A MATTER OF LAW AND AS A
MATTER OF PROCEDURE.  I WOULD HAVE NO WAY OF KNOWING WHAT ASSUMPTIONS
PEOPLE REACH.  I HAVE NO WAY OF KNOWING WHAT PEOPLE THINK.  MY CONCERN
IS WHAT WAS SAID, WHAT WAS DONE, AND HOW IT WAS DONE. 

        .          .          .          . 

"Q.  WELL, IN YOUR OPINION TO (THE ORGANIZERS OF THE FUND) DID YOU
NOT MAKE IT CLEAR THAT IN NO WAY SHOULD IT APPEAR COMPULSORY TO THE
MEMBERS WHO WERE ASKED TO CONTRIBUTE? 

"A.  NO, SIR, I DID NO SUCH THING.  I SIMPLY TOLD THEM THAT THE
CONTRIBUTIONS MUST NOT BE MADE A CONDITION OF EMPLOYMENT OR A CONDITION
OF UNION MEMBERSHIP AND THAT WAS THE EXTENT OF MY ADVICE TO THEM ON
WHAT THEY MUST DO, WHAT THEY MUST NOT DO, AND HOW THEY SHOULD DO IT." 

/9/  THE COURT'S INSTRUCTIONS IN THIS REGARD WERE AS FOLLOWS: 

"YOU WILL NOTE THAT SECTION 610 PROHIBITS CONTRIBUTIONS BY LABOR
ORGANIZATIONS FOR USE IN CONNECTION WITH AN ELECTION FOR A FEDERAL
OFFICE.  IT DOES NOT PROHIBIT ANY PERSON FROM MAKING OR AGREEING TO
MAKE SUCH CONTRIBUTIONS OR SETTING UP AN INDEPENDENT FUND FOR SUCH
PURPOSE SEPARATE AND DISTINCT FROM UNION FUNDS EITHER ALONE OR IN
CONJUNCTION WITH OTHERS, SIMPLY BECAUSE SUCH PERSON HAPPENS TO BE A
MEMBER OF A LABOR ORGANIZATION.  THAT IS, THE STATUTE IS NOT VIOLATED
UNLESS THE CONTRIBUTION IS IN FACT AND IN THE FINAL ANALYSIS MADE BY
THE LABOR ORGANIZATION. 

"IN THIS CASE EVIDENCE WAS OFFERED BY THE GOVERNMENT TO THE EFFECT
THAT FUNDS WERE CONTRIBUTED TO OR ON BEHALF OF CANDIDATES FOR FEDERAL
OFFICE AND THAT SUCH FUNDS WERE PAID OUT UPON CHECKS DRAWN UPON THE
PIPEFITTERS VOLUNTARY POLITICAL, EDUCATIONAL, LEGISLATIVE, CHARITY AND
DEFENSE FUND.  IT IS NECESSARY, THEREFORE, THAT THE EVIDENCE ESTABLISH
THAT THE PIPEFITTERS . . . FUND WAS IN FACT A UNION FUND, THAT THE
MONEY THEREIN WAS UNION MONEY, AND THAT THE REAL CONTRIBUTOR TO THE
CANDIDATES WAS THE UNION.  AS TO THIS ISSUE, THE DEFENDANTS CONTEND
THAT THE FUND IN QUESTION WAS A BONA FIDE ENTITY SEPARATE AND APART
FROM THE UNION, ESTABLISHED BY THE VOLUNTARY GOOD FAITH ACT OF MEMBERS
OF THE PIPEFITTERS LOCAL 562 AND OTHERS, FROM WHICH CONTRIBUTIONS TO
CANDIDATES WERE MADE ON BEHALF OF THE PERSONS WHO CREATED THE FUND AND
NOT ON BEHALF OF THE UNION.  ON THE OTHER HAND, THE GOVERNMENT CONTENDS
THAT THE FUND WAS A MERE ARTIFICE OR DEVICE SET UP BY THE DEFENDANTS
AND OTHERS AS A PART OF THE ALLEGED CONSPIRACY TO GIVE THE OUTWARD
APPEARANCE OF BEING AN INDEPENDENT AND SEPARATE ENTITY BUT IN FACT
CONSTITUTING A PART OF UNION FUNDS. 

"IN DETERMINING WHETHER THE PIPEFITTERS VOLUNTARY FUND WAS A BONA
FIDE FUND, SEPARATE AND DISTINCT FROM THE UNION OR A MERE ARTIFICE OR
DEVICE, YOU SHOULD TAKE INTO CONSIDERATION ALL THE FACTS AND
CIRCUMSTANCES IN EVIDENCE, AND IN SUCH CONSIDERATION YOU MAY CONSIDER 

"1.  WHETHER OR NOT PAYMENTS TO THE FUND WERE ROUTINELY MADE AT
REGULAR INTERVALS AT JOB SITES, 

"2.  WHETHER OR NOT PAYMENTS TO THE FUND WERE ROUTINELY COLLECTED BY
UNION STEWARDS, FOREMEN, AREA FOREMEN, GENERAL FOREMEN, OR OTHER AGENTS
OF THE UNION, 

"3.  WHETHER OR NOT THE PAYMENT TO THE FUND WAS DETERMINED BY A
FORMULA BASED UPON THE AMOUNT OF HOURS OR OVERTIME HOURS WORKED UPON A
JOB UNDER THE SUPERVISION OF THE UNION, 

"4.  WHETHER OR NOT PAYMENTS TO THE FUND WERE AT ONE RATE FOR 562
MEMBERS AND AT A DIFFERENT RATE FOR MEMBERS OF OTHER UNIONS, 

"5.  WHETHER OR NOT PAYMENTS TO THE FUND BEGAN, CONTINUED AND
TERMINATED WITH EMPLOYMENT ON A JOB UNDER THE JURISDICTION OF THE
UNION,     "6.  WHETHER OR NOT MONIES OF THE FUND WERE USED TO PROVIDE
BENEFITS TO UNION MEMBERS IN THEIR CAPACITY AS MEMBERS, 

"7.  WHETHER OR NOT PAYMENTS TO THE FUND BY MEMBERS OF OTHER UNIONS
WERE IN LIEU OF PAYMENTS TO THE UNION IN THE FORM OF TRAVEL CARD DUES
IN THE AMOUNT OF EIGHT DOLLARS PER MONTH, 

"8.  WHETHER OR NOT MONIES OF THE FUND WERE USED IN PART TO PROMOTE
ACTIVITIES PROPERLY PERMITTED TO THE UNION PURSUANT TO SECTION 2.05 OF
ITS CONSTITUTION AND BY-LAWS, 

"9.  WHETHER OR NOT PAYMENTS TO THE FUND WERE MADE BY THOSE
AFFILIATED WITH THE UNION TO THE GENERAL EXCLUSION OF OTHER CLASSES OF
PERSONS OR ORGANIZATIONS,     "10.  WHETHER OR NOT CONTRIBUTIONS TO THE
FUND WERE REQUIRED AS A CONDITION OF EMPLOYMENT OR CONTINUED EMPLOYMENT
OR MEMBERSHIP IN LOCAL 562, 

"11.  WHETHER OR NOT THE INDIVIDUALS WHO CONTRIBUTED TO SAID FUND
SIGNED A VOLUNTARY CONTRIBUTION AGREEMENT, 

"12.  WHETHER OR NOT THE CONTRIBUTIONS TO SAID FUND WERE MADE
VOLUNTARILY OR INVOLUNTARILY, 

"13. WHETHER OR NOT THE MONIES CONTRIBUTED TO SAID FUND WERE KEPT
SEPARATE AND DISTINCT FROM THE FUNDS OF LOCAL 562, 

"14.  WHETHER OR NOT SOME PERSONS WHO WORKED UNDER THE JURISDICTION
OF LOCAL 562 DID NOT CONTRIBUTE TO SAID FUND, 

"15.  WHETHER OR NOT THE MONIES OF SAID FUND WERE USED IN PART TO
PROMOTE ACTIVITIES WHICH WERE PROHIBITED TO LOCAL 562 BY ITS
CONSTITUTION AND BY-LAWS, 

"16.  WHETHER OR NOT SAID FUND WAS ESTABLISHED AND MAINTAINED
PURSUANT TO THE ADVICE OF COUNSEL, 

"17.  WHETHER OR NOT THE MONIES OF SAID FUND WERE REPORTED TO THE
DEPARTMENT OF LABOR ON THE LM-2 FORMS, WHICH REQUIRED THE REPORTING OF
MONIES OF LOCAL 562, 

"18.  WHETHER OR NOT EXPENDITURES FROM THE FUND WERE UNDER THE
CONTROL OF THE UNION AND ITS OFFICERS, 

"19.  WHETHER OR NOT RECORDS USED IN THE COLLECTION OF THE PAYMENTS
TO THE FUND ARE SIMILAR TO THOSE EMPLOYED FROM TIME TO TIME BY THE
UNION IN THE COLLECTION OF ITS REGULAR DUES AND ASSESSMENTS. 

"IF UPON CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES IN
EVIDENCE YOU FIND THAT THE CONTRIBUTIONS TO THE CANDIDATES FOR FEDERAL
OFFICE FOR POLITICAL PURPOSES WERE IN FACT MADE OUT OF UNION FUNDS BY
THE UNION, AND THAT THE INDIVIDUAL DEFENDANTS AS OFFICERS OF THE UNION,
WILLFULLY CONSENTED THERETO, THEN YOU MAY TAKE THIS FACT INTO
CONSIDERATION TOGETHER WITH OTHER FACTS IN EVIDENCE IN DETERMINING
WHETHER THERE WAS A PRIOR UNDERSTANDING OR AGREEMENT SO TO DO.

        .         .          .          . 

"A GREAT DEAL OF EVIDENCE HAS BEEN INTRODUCED ON THE QUESTION OF
WHETHER THE PAYMENTS INTO THE PIPEFITTERS VOLUNTARY POLITICAL,
EDUCATIONAL, LEGISLATIVE, CHARITY AND DEFENSE FUND BY MEMBERS OF LOCAL
562 AND OTHERS WORKING UNDER ITS JURISDICTION WERE VOLUNTARY OR
INVOLUNTARY.  THIS EVIDENCE IS RELEVANT FOR YOUR CONSIDERATION, ALONG
WITH ALL OTHER FACTS AND CIRCUMSTANCES IN EVIDENCE, IN DETERMINING
WHETHER THE FUND IS A UNION FUND.  HOWEVER, THE MERE FACT THAT THE
PAYMENTS INTO THE FUND MAY HAVE BEEN MADE VOLUNTARILY BY SOME OR EVEN
ALL OF THE CONTRIBUTORS THERETO DOES NOT, OF ITSELF, MEAN THAT THE
MONEY SO PAID INTO THE FUND WAS NOT UNION MONEY." 

/10/  THE QUESTIONS POSED TO THE PARTIES WERE: 

"DOES SEC. 205 OF THE FEDERAL ELECTION CAMPAIGN ACT OF 1971 (P.L. 92
225) AFFECT THE DECISION IN THIS CASE, AND, IF SO, WITH WHAT RESULT? 
MORE PARTICULARLY, DOES SEC. 205 EFFECT A SUBSTANTIVE CHANGE IN 18
U.S.C. 610 IN ANY WAY MATERIAL TO THIS CASE, AS, FOR EXAMPLE, BY
ALTERING ANY OF THE ATTRIBUTES OF PERMISSIBLE UNION POLITICAL
ORGANIZATIONS, SUCH AS THE METHOD OF ORGANIZATION OR ADMINISTRATION OR
THE METHOD OF SOLICITATION OR COLLECTION OF CONTRIBUTIONS?  IF SO, MUST
THIS PROSECUTION ABATE UNDER THE DOCTRINE OF UNITED STATES V. THE
SCHOONER PEGGY, 1 CRANCH 103, AND ITS PROGENY?  OR DOES THE FEDERAL
SAVING STATUTE, 1 U.S.C. 109, NULLIFY ANY ABATEMENT OF THE
PROSECUTION?  IN ANSWERING THE LATTER QUESTION, WHAT EFFECT SHOULD BE
GIVEN TO HAMM V. ROCK HILL, 379 U.S. 306?" 

/11/  PETITIONERS CALLANAN AND LAWLER DIED PENDING OUR DECISION. 
THE JUDGMENT AFFIRMING THE CONVICTIONS OF THOSE PETITIONERS WILL
THEREFORE BE VACATED WITH DIRECTIONS TO THE DISTRICT COURT TO DISMISS
THE INDICTMENT AGAINST THEM.  DURHAM V. UNITED STATES, 401 U.S. 481
(1971).  THE REMAINING PETITIONERS PRESS THE ARGUMENT, REJECTED BY THE
COURT OF APPEALS, THAT THE SPECIAL FINDING BY THE JURY THAT A WILLFUL
VIOLATION OF SEC. 610 WAS NOT CONTEMPLATED AMOUNTED TO AN ACQUITTAL,
SINCE SUCH WILLFULNESS WAS AN ESSENTIAL ELEMENT OF THE CONSPIRACY UNDER
18 U.S.C. 371.  THE TRIAL COURT APPARENTLY REQUIRED A SPECIAL FINDING
TO DETERMINE WHETHER THE SUBSTANTIVE OFFENSE THAT PETITIONERS WERE
CHARGED WITH CONSPIRING TO COMMIT WAS A MISDEMEANOR OR A FELONY.  SEE
18 U.S.C. 610.  THAT, IN TURN, WAS RELEVANT FOR IMPOSING SENTENCE UNDER
SEC. 371.  SEE N. 1, SUPRA. PETITIONERS CONTEND THAT SEC. 371 PUNISHES
A CONSPIRACY TO COMMIT A MALUM PROHIBITUM SUCH AS SEC. 610 ONLY WHEN
THE OBJECT OF THE CONSPIRACY IS KNOWN TO HAVE BEEN UNLAWFUL, WHICH, SO
THE ARGUMENT GOES, THE JURY FOUND NOT TO HAVE BEEN THE CASE HERE BY
VIRTUE OF ITS SPECIAL FINDING.  THIS ARGUMENT IS NOT PERSUASIVE. 
PETITIONERS NOT ONLY FAILED TO OBJECT TO THE TRIAL COURT'S REQUIREMENT
THAT THE JURY RETURN A SPECIAL FINDING AS INCONSISTENT WITH THE GENERAL
CHARGE, BUT ALSO FAILED TO MOVE FOR ACQUITTAL ON THE GROUND NOW OFFERED
ONCE THE SPECIAL FINDING WAS RETURNED.  MORE IMPORTANT, EVEN ASSUMING,
ARGUENDO, THE CORRECTNESS OF PETITIONERS' PREMISE THAT KNOWLEDGE OF THE
REACH OF SEC. 610 WAS A REQUISITE FOR CONVICTION, BUT SEE KEEGAN V.
UNITED STATES, 325 U.S. 478, 506 (1945) (STONE, C.J., DISSENTING); SEE
GENERALLY DEVELOPMENTS IN THE LAW-- CRIMINAL CONSPIRACY, 72
HARV.L.REV.  920, 936-937 (1959), PETITIONERS WOULD STILL BE ENTITLED
AT BEST TO A NEW TRIAL, NOT ACQUITTAL.  THE TRIAL COURT SPECIFICALLY
INSTRUCTED THE JURY: 

"THE CRIME CHARGED IN THIS CASE REQUIRES PROOF OF SPECIFIC INTENT
BEFORE A DEFENDANT CAN BE CONVICTED.  . . . TO ESTABLISH SPECIFIC
INTENT THE GOVERNMENT MUST PROVE THAT THE DEFENDANT KNOWINGLY,
WILLFULLY AND PURPOSELY DID AN ACT WHICH THE LAW FORBIDS.  . . . 

"AN ACT IS DONE 'KNOWINGLY' IF DONE VOLUNTARILY AND WITH KNOWLEDGE
OF THE FACTS, AND NOT BECAUSE OF MISTAKE OR INADVERTENCE OR OTHER
INNOCENT REASON. 

"AN ACT IS DONE 'WILLFULLY' IF DONE VOLUNTARILY AND PURPOSELY AND
WITH THE SPECIFIC INTENT TO DO THAT WHICH THE LAW FORBIDS; THAT IS TO
SAY, WITH BAD PURPOSE EITHER TO DISOBEY OR TO DISREGARD THE LAW. 

"AN ACT IS DONE 'UNLAWFULLY' IF DONE CONTRARY TO LAW."  APP. 1110. 
SEE ALSO ID., AT 1116 (INSTRUCTION ON GOOD-FAITH BELIEF IN LEGALITY OF
OBJECT OF CONSPIRACY). 

IN VIEW OF THIS INSTRUCTION THE JURY'S SPECIAL FINDING MAY WELL HAVE
BEEN INCONSISTENT WITH ITS GENERAL VERDICT, BUT THAT, WE HOLD, COULD
REQUIRE ONLY REVERSAL, NOT ACQUITTAL. 

/12/  THE DISSENT DECLINES TO ACCEPT THIS AGREEMENT OF THE PARTIES
ON THE GROUND THAT THE LANGUAGE OF SEC. 610 IS SO CLEAR ON ITS FACT
THAT THERE IS NO WARRANT FOR TURNING TO THE LEGISLATIVE HISTORY OF THE
PROVISION.  THE CONTRARY IS PLAINLY TRUE:  SECTION 610 WHOLLY FAILS TO
SPECIFY WHAT FUNDS A LABOR ORGANIZATION IS BARRED FROM CONTRIBUTING OR
EXPENDING IN CONNECTION WITH A FEDERAL ELECTION.  MOREOVER, AS WE SHALL
SHORTLY SEE, THE DISSENT'S "FACIAL" INTERPRETATION OF SEC. 610 WAS
EXPRESSLY REJECTED BY ITS PROPONENTS IN 1947, BOTH FROM CONCERN THAT IT
WOULD RAISE CONSTITUTIONAL QUESTIONS OF INVASION OF FIRST AMENDMENT
FREEDOMS, AND IN AN EFFORT TO ENSURE ENACTMENT OF THE LAW.  IN
ADDITION, CONGRESS HAS ONLY RECENTLY IN THE FEDERAL ELECTION CAMPAIGN
ACT OF 1971 DECISIVELY REJECTED THAT INTERPRETATION ON THE BASIS OF THE
VERY LEGISLATIVE HISTORY FOUND DISPOSITIVE HEREIN.  SEE N. 20, INFRA. 
CONGRESS IN 1947 AND AGAIN ONLY A FEW MONTHS AGO WAS ABLE TO COME TO
THIS CONCLUSION SOLELY BECAUSE OF THE FACIAL AMBIGUITY OF THE
PROVISION. 

IT IS ALSO WORTH NOTING THAT THE DISSENT'S OWN ANALYSIS REVEALS THE
NECESSITY FOR RESORTING TO THE LEGISLATIVE HISTORY OF THE STATUTE.  THE
DISSENT, TOO, APPRECIATES "THE FREEDOM OF UNION MEMBERS, AS WELL AS
THAT OF EMPLOYEES AND STOCKHOLDERS OF CORPORATIONS, TO MAKE UNCOERCED
POLITICAL CONTRIBUTIONS."  IF THAT IS SO, IT OBVIOUSLY BECOMES
IMPERATIVE TO DETERMINE THE CONTOURS OF THAT FREEDOM, WHICH, IN TURN,
REQUIRES INVESTIGATION OF THE LEGISLATIVE HISTORY OF SEC. 610. 

/13/  SEE ALSO H.R. REP. NO. 2093, 78TH CONG., 2D SESS., 9 (1945);
S. REP. NO. 1, PT. 2, 80TH CONG., LST SESS., 36 (1947).  BUT SEE H.R.
REP. NO. 2739, 79TH CONG., 2D SESS., 46-47 (1946). 

/14/  THE SENATE COMMITTEE DID RECOMMEND THAT THE USE OF GENERAL
UNION FUNDS TO FINANCE THE DISTRIBUTION OF A POLITICAL PAMPHLET IN
CONNECTION WITH A FEDERAL ELECTION BE PROSECUTED AS A TEST CASE TO
DETERMINE THE SCOPE OF THE TERM "CONTRIBUTION" IN SEC. 313.  S. REP.
NO. 101, 79TH CONG., 1ST SESS., 57-59 (1945). 

/15/  H.R. REP. NO. 2739, SUPRA, N. 13, AT 39-40, 43, 46.  THE HOUSE
COMMITTEE DECLARED, FOR EXAMPLE, ID., AT 43: 

"THE CIO POLITICAL ACTION COMMITTEE IS A COMMITTEE OF THE CONGRESS
OF INDUSTRIAL ORGANIZATIONS AND, AS SUCH, UNDER THE CORRUPT PRACTICES
ACT, IS LIKEWISE AS A LABOR UNION PROHIBITED (FROM) MAKING ANY
CONTRIBUTION IN CONNECTION WITH ANY ELECTION AT WHICH A REPRESENTATIVE
TO CONGRESS IS TO BE ELECTED. 

"THE COMMITTEE FEELS THAT WHETHER OR NOT THE ACTIVITIES CARRIED ON
BY THESE ORGANIZATIONS AND THE PAYMENT OF SALARIES TO MEN KNOWN AS
ORGANIZERS OR ADVISERS WHO GO INTO THE CONGRESSIONAL DISTRICTS AND
ACTIVELY ASSIST IN LOCAL CAMPAIGN ACTIVITIES, AND EXPENDITURES FOR
RADIO TIME, NEWSPAPER ADVERTISING, PRINTING AND DISTRIBUTION OF
HANDBILLS AND POSTERS, AND FOR TRANSPORTATION OF VOTERS, CONSTITUTE
VIOLATIONS OF THE LETTER OF THE FEDERAL CORRUPT PRACTICES ACT, THEY
CERTAINLY CONSTITUTE VIOLATIONS OF THE SPIRIT AND INTENT OF THE LAW AND
THE (ACT) SHOULD BE SO AMENDED AS TO CLEARLY AND DISTINCTLY SET OUT
THAT SUCH ACTIVITIES ARE PROHIBITED." 

THE SENATE COMMITTEE STUDYING THE 1946 CAMPAIGN JOINED THIS
RECOMMENDATION, BUT WITHOUT ANY REFERENCE TO PAC.  SEE S. REP. NO. 1,
PT. 2, SUPRA, N. 13, AT 38-39.  SEE ALSO H.R. REP. NO. 2093, SUPRA, N.
13, AT 9, 10-11 (NOTING THE CONTROVERSY OVER THE SCOPE OF THE TERM
"CONTRIBUTION" AND EXPRESSING VIEWS SEEMINGLY SYMPATHETIC WITH
PROHIBITING "EXPENDITURES"). 

/16/  SEE H.R. REP. NO. 245, 80TH CONG., 1DT SESS., 46 (1947); 93
CONG.REC.  3428, 3522-3523 (1947); H.R. CONF. REP. NO. 510, 80TH CONG.,
1ST SESS., 67-68 (1947).  SEE ALSO 93 CONG.REC.  6389 (CRITICAL REMARKS
OF REP. SABATH FOLLOWING THE CONFERENCE COMMITTEE REPORT).  THE ONLY
STATEMENT OFFERING A RATIONALE FOR SEC. 304 WAS MADE BY REPRESENTATIVE
ROBSION AFTER THE HOUSE HAD VOTED TO OVERRIDE PRESIDENT TRUMAN'S VETO
OF THE ACT.  ROBSION STRESSED THAT IT WAS UNFAIR TO UNION MEMBERS TO
ALLOW THE EXPENDITURE OF UNION FUNDS IN SUPPORT OF CANDIDATES FOR
FEDERAL OFFICE WHOM THEY OPPOSED.  SEE 93 CONG.REC.  7492. 

/17/  SEE HEARINGS ON H.R. 804 AND H.R. 1483, BEFORE A SUBCOMMITTEE
OF THE HOUSE COMMITTEE ON LABOR, 78TH CONG., 1ST SESS., 117, 133 (1943)
(STATEMENTS OF REP. LANDIS, SPONSOR OF THE MEASURE) ("INDIVIDUAL UNION
MEMBERS WOULD NOT BE PROHIBITED FROM CONTRIBUTING."  "IF YOU HAVE A
MEMBERSHIP OF 500,000, AND ALL THE DEMOCRATS WANTED TO GIVE A DOLLAR
APIECE, AND THERE WERE 300,000, THAT WOULD BE $300,000.  . . . YOUR
WHOLE ORGANIZATION COULD GIVE AS HIGH AS THAT IF THEY DONATED ONLY A
DOLLAR APIECE"); LETTER FROM ATTORNEY GENERAL BIDDLE TO SEN. E. H.
MOORE (SEPT. 23, 1944), REPRODUCED IN DEPARTMENT OF JUSTICE PRESS
RELEASE, SEPT. 25, 1944, AND NOTED IN 4 LAW.GUILD REV., NO. 5, P. 49
(1944): 

"YOU ALSO POINT OUT (THE ATTORNEY GENERAL WROTE) THAT COMMITTEES
COMPOSED OF MEMBERS OF UNIONS ARE ENGAGED IN THE SOLICITATION OF FUNDS
FROM INDIVIDUAL UNION MEMBERS AND YOU ASSERT THAT COMMITTEES OF THIS
KIND 'ARE AS MUCH A LABOR ORGANIZATION AS A UNION ORGANIZATION
ITSELF.'  THIS CONTENTION IS INCONSISTENT WITH THE PROVISIONS OF THE
STATUTE.  IN AMENDING SECTION 313 OF THE CORRUPT PRACTICES ACT, THE
(WAR LABOR DISPUTES ACT) PROVIDED THAT FOR THE PURPOSES OF THE
AMENDMENT THE WORDS 'LABOR ORGANIZATION' SHOULD HAVE THE SAME MEANING
THEY HAVE UNDER THE NATIONAL LABOR RELATIONS ACT.  . . . I THINK IT
CLEAR THAT COMMITTEES OF THE KIND THAT YOU DESCRIBE ARE NOT LABOR
ORGANIZATIONS WITHIN THE MEANING OF THIS DEFINITION AND THEY WOULD NOT
BE RECOGNIZED AS BARGAINING AGENCIES BY THE NATIONAL LABOR RELATIONS
BOARD.  EVEN IF IT WERE TRUE THAT THESE COMMITTEES WERE IDENTICAL WITH
THE LABOR ORGANIZATIONS TO WHICH THEIR MEMBERS BELONG-- WHICH I BELIEVE
NOT TO BE THE FACT-- THERE WOULD STILL BE NO VIOLATION OF LAW BECAUSE
THE STATUTE APPLIES TO CONTRIBUTIONS MADE BY LABOR ORGANIZATIONS AND IN
THIS CASE THE CONTRIBUTIONS ARE MADE BY INDIVIDUALS AND NOT BY THE
COMMITTEES." 

/18/  SEE, E.G., 93 CONG.REC.  6448, 6522-6523 (EXCHANGE BETWEEN
SEN. PEPPER, WHO, IN OPPOSING SEC. 304, DECRIED IT AS REPUBLICAN
LEGISLATION IN CONTRAVENTION OF THE FIRST AMENDMENT, AND SEN. ELLENDER,
WHO, AS A DEMOCRATIC REPRESENTATIVE ON THE CONFERENCE COMMITTEE, ROSE
IN SUPPORT OF SEN. TAFT'S CONSTRUCTION).  SEE ALSO UNITED STATES V.
CIO, 335 U.S. 106, 120 (1948). 

/19/  THE EXCEPTION INVOLVED WHETHER NONPARTISAN REGISTRATION AND
GET-OUT-THE-VOTE CAMPAIGNS COULD BE DIRECTED TO THE PUBLIC AT LARGE. 
SEE 117 CONG.REC.  43379-43381, 43390. 

/20/  ID., AT 43379.  SEE ALSO 118 CONG.REC.  329.  IN DETERMINING
THAT SEC. 610 HAS ALWAYS PERMITTED UNIONS TO ORGANIZE VOLUNTARILY
FINANCED POLITICAL FUNDS, HANSEN RELIED, AS WE HAVE DONE, ON SEN.
TAFT'S FLOOR EXPLANATION OF SEC. 304 OF THE HARTLEY BILL.  SEE 117
CONG.REC.  43381; 118 CONG.REC.  329.     /21/  SEE, E.G., 117
CONG.REC.  43381 (REMARKS OF REP. HAYS), 43383-43385 (REMARKS OF REP.
THOMPSON), 43388-43389 (REMARKS OF REPS.  STEIGER AND GUDE). 

/22/  SEE, E.G., 117 CONG.REC.  43382, 43386, 43390-43391; 118
CONG.REC.  323-324. 

/23/  THE HANSEN PROPOSAL WAS OFFERED AS AN AMENDMENT TO AN
AMENDMENT IN THE NATURE OF A SUBSTITUTE TO THE BILL AS REPORTED OUT OF
COMMITTEE.  ALTHOUGH THE SUBSTITUTE AMENDMENT HAD NO PROVISION RELATING
TO SEC. 610, SEE 117 CONG.REC.  43365-43366, IT WAS EXPECTED THAT THE
CRANE PROVISION WOULD BE TAKEN UP AS AN AMENDMENT TO THE SUBSTITUTE
AMENDMENT IF THE HANSEN AMENDMENT FAILED TO CARRY.  SEE, E.G., ID., AT
43389-43390 (REMARKS OF REPS.  DEVINE AND CRANE).  (REPORTER'S NOTE:
THE REMARKS OF REP. DEVINE, WHOSE NAME WAS ERRONEOUSLY OMITTED FROM 117
CONG.REC.  43389, COL. 3, PAR. 5, LINE 1, BEGIN WITH THE LANGUAGE, "MR.
CHAIRMAN, I RISE IN OPPOSITION.  . . . ") 

/24/  SEE, E.G., ID., AT 43389-43390 (REMARKS OF REP. DEVINE). 

/25/  THE CRANE PROVISION WOULD HAVE ADDED THE FOLLOWING PARAGRAPH
AT THE END OF SEC. 610: 

"AS USED IN THIS SECTION, THE PHRASE 'CONTRIBUTION OR EXPENDITURE'
SHALL INCLUDE ANY DIRECT OR INDIRECT PAYMENT, DISTRIBUTION, LOAN,
ADVANCE, DEPOSIT, OR GIFT, OF MONEY, OR ANY SERVICES, OR ANYTHING OF
VALUE TO ANY CANDIDATE, COMPAIGN (SIC) COMMITTEE, OR POLITICAL PARTY OR
ORGANIZATION, IN CONNECTION WITH ANY ELECTION TO ANY OF THE OFFICES
REFERRED TO IN THIS SECTION, INCLUDING ANY EXPENDITURE IN CONNECTION
WITH GET-OUT-THE-VOTE ACTIVITIES.  NOTHING IN THIS SECTION SHALL
PRECLUDE AN ORGANIZATION FROM ESTABLISHING AND ADMINISTERING A SEPARATE
CONTRIBUTORY FUND FOR ANY POLITICAL PURPOSE, INCLUDING VOTER
REGISTRATION OR GET-OUT-THE-VOTE DRIVES, IF ALL CONTRIBUTIONS, GIFTS,
OR PAYMENTS TO SUCH FUND ARE MADE FREELY AND VOLUNTARILY, AND ARE
UNRELATED TO DUES, FEES, OR OTHER MONEYS REQUIRED AS A CONDITION OF
MEMBERSHIP IN SUCH ORGANIZATION OR AS A CONDITION OF EMPLOYMENT
EMPLOYMENT."  H.R. REP. NO. 92-564, P. 19 (1971). 

THE PRINCIPAL BONE OF CONTENTION BETWEEN THE PROPONENTS AND
OPPONENTS OF THE HANSEN AMENDMENT WHEN IT WAS FIRST INTRODUCED WAS
WHETHER UNION OR CORPORATION TREASURIES COULD AND SHOULD BE AVAILABLE
TO FINANCE GET-OUT-THE-VOTE DRIVES.  REPRESENTATIVE FRENZEL, FOR
EXAMPLE, SUMMARIZED THE DEBATE SHORTLY BEFORE THE HOUSE VOTE ON THE
HANSEN AMENDMENT WAS TAKEN, 117 CONG.REC.  43391: 

"(IT IS IMPORTANT THAT WE UNDERSTAND NEITHER THE CRANE AMENDMENT NOR
THE HANSEN AMENDMENT IS DIRECTED TOWARD VOLUNTARY OR COPE (THE
SUCCESSOR OF PAC) MONEYS.  WHAT WE ARE TALKING ABOUT IS TREASURY
MONEY.  THE PRINCIPAL DISTINCTION IS THAT THE HANSEN AMENDMENT WOULD
ALLOW ITS USE TO GET-OUT-THE-VOTE DRIVES FOR UNION MEMBERS WHILE THE
CRANE AMENDMENT WOULD NOT." 

FOLLOWING THE CONFERENCE COMMITTEE REPORT, CRANE ROSE ONCE AGAIN IN
OPPOSITION TO THE HANSEN AMENDMENT, THIS TIME AND FOR THE FIRST TIME
CRITICIZING THE AMENDMENT IN ITS TREATMENT OF UNION POLITICAL FUNDS. 
THE DISPUTE CENTERED THEN, HOWEVER, NOT ON WHETHER VOLUNTARY FUNDS WERE
PERMISSIBLE, BUT ON EXACTLY WHAT THEIR PREREQUISITES WERE.  SEE INFRA,
AT 422-426. 

/26/  "A UNION MEMBER (THE GOVERNMENT EXPLAINS) MAY FIND
IRRESISTIBLE THE UNION'S DEMAND-- THROUGH ITS STEWARD ON THE JOBSITE--
FOR CONTRIBUTIONS FIXED AS A REGULAR PERCENTAGE OF DAYS WORKED AND
MONEY EARNED.  SECTION 610 REDUCES THIS INSTITUTIONAL PRESSURE BY
FORBIDDING THE UNIONS FROM MAKING DIRECT POLITICAL CONTRIBUTIONS FROM
MONEY THAT IS EFFECTIVELY ASSESSED."  BRIEF FOR THE UNITED STATES 38. 
AS WE SHALL SEE, INFRA, AT 435-442, THE GOVERNMENT'S THEORY IN
PROSECUTING THIS CASE FOCUSED ON THE FIRST, BUT NOT THE SECOND, OF ITS
ARGUMENTS HERE PRESENTED. 

/27/  FOR THE SCOPE OF THE REQUIRED SEGREGATION OF FUNDS, SEE INFRA,
AT 428-432. 

/28/  THE GOVERNMENT RELIES ON UNITED STATES V. LEWIS FOOD CO., 366
F.2D 710 (1966), WHERE THE COURT OF APPEALS FOR THE NINTH CIRCUIT
UPHELD AN INDICTMENT UNDER SEC. 610 THAT FAILED TO ALLEGE, INTER ALIA,
THAT AN EXPENDITURE BY A CORPORATION IN CONNECTION WITH A FEDERAL
ELECTION WAS MADE AGAINST THE WISHES OF AN INDIVIDUAL STOCKHOLDER.  THE
COURT THERE EXPLAINED, ID., AT 713-714: 

"THE STATUTE ITSELF . . . DOES NOT PROVIDE AN EXCEPTION WHEN
STOCKHOLDERS CONSENT.  WE ARE OF THE OPINION THAT CONGRESS INTENDED TO
INSURE AGAINST OFFICERS PROCEEDING IN SUCH MATTERS WITHOUT OBTAINING
THE CONSENT OF SHAREHOLDERS BY FORBIDDING ALL SUCH EXPENDITURES. 

"THE SUPREME COURT STATED THAT THE OTHER LEGISLATIVE MOTIVATION (IN
ADDITION TO THE PROTECTION OF MINORITY INTERESTS) FOR ENACTMENT OF
LEGISLATION SUCH AS SECTION 610 WAS THE NECESSITY FOR DESTROYING THE
INFLUENCE OVER ELECTIONS WHICH CORPORATIONS EXERCISED THROUGH FINANCIAL
CONTRIBUTIONS.  (UNITED STATES V. CIO, 335 U.S.,AT 113.)  THIS
CONSIDERATION WOULD BE MEANINGLESS IF A CORPORATION COULD MAKE
EXPENDITURES FOR ACTIVITIES OTHERWISE FORBIDDEN BY SECTION 610 BY
SIMPLY OBTAINING UNANIMOUS CONSENT OF ITS SHAREHOLDERS.  IN THE AUTO
WORKERS CASE, THE INDICTMENT CONTAINED NO ALLEGATION THAT THE
EXPENDITURE OF UNION FUNDS (TO FINANCE TELEVISION BROADCASTS DESIGNED
TO INFLUENCE THE ELECTORATE AT LARGE) WAS CONTRARY TO THE WISH OF
MEMBERS.  NEVERTHELESS, THE SUPREME COURT FOUND THE INDICTMENT
SUFFICIENT." 

THE NINTH CIRCUIT'S RELIANCE ON AUTO WORKERS WAS MISPLACED.  THE
INDICTMENT THERE DID ALLEGE, AS WE NOTED, 352 U.S.,AT 584, "'THAT THE
FUND USED CAME FROM THE UNION'S DUES, WAS NOT OBTAINED BY VOLUNTARY
POLITICAL CONTRIBUTIONS OR SUBSCRIPTIONS FROM MEMBERS OF THE UNION, AND
WAS NOT PAID FOR BY ADVERTISING OR SALES.'"  IN AUTO WORKERS,
THEREFORE, WE HAD NO OCCASION TO ADDRESS THE LEGITIMACY OF UNION
CONTROLLED POLITICAL CONTRIBUTIONS FINANCED FROM THE KNOWING FREE
CHOICE DONATIONS OF UNION MEMBERS.  MORE IMPORTANT, THE COURT IN LEWIS
LABORED UNDER THE SAME MISAPPREHENSION ON WHICH THE GOVERNMENT'S
ARUGMENT RESTS HERE-- NAMELY, THAT THE LEGISLATIVE PURPOSE TO ELIMINATE
THE EFFECTS OF AGGREGATED WEALTH ON FEDERAL ELECTIONS REACHES UNION- OR
CORPORATION-CONTROLLED CONTRIBUTIONS AND EXPENDITURES FINANCED NOT FROM
THE GENERAL TREASURY, BUT FROM VOLUNTARY DONATIONS. 

BY SAYING THIS, WE DO NOT MEAN TO SUGGEST THAT THE RESULT IN LEWIS
WAS INCORRECT.  TO THE CONTRARY, AN INDICTMENT THAT ALLEGES A
CONTRIBUTION OR EXPENDITURE FROM THE GENERAL TREASURY OF A UNION OR
CORPORATION IN CONNECTION WITH A FEDERAL ELECTION STATES AN OFFENSE. 
SEE NN. 47 AND 48, INFRA.  THE UNANIMOUS VOTE OF THE UNION MEMBERS OR
STOCKHOLDERS MAY AT MOST (BUT WE NEED NOT NOW DECIDE) BE A DEFENSE. 

/29/  IN UNITED STATES V. CIO, THIS COURT, OF COURSE, WENT FURTHER
THAN SENATOR TAFT'S COMMENTS WOULD ALLOW BY HOLDING THAT SEC. 304 DID
NOT BAR A UNION FROM USING UNION FUNDS TO PUBLISH A PERIODICAL, IN
REGULAR COURSE AND FOR DISTRIBUTION TO THOSE ACCUSTOMED TO RECEIVING
IT, THAT URGED UNION MEMBERS TO VOTE FOR A CANDIDATE FOR CONGRESS.  THE
COURT, HOWEVER, ARRIVED AT THAT CONSTRUCTION BECAUSE THE CONTRARY
INTERPRETATION WOULD CREATE "THE GRAVEST DOUBT" OF THE STATUTE'S
CONSTITUTIONALITY.  335 U.S.,AT 121. 

/30/  HEARINGS BEFORE THE HOUSE COMMITTEE TO INVESTIGATE CAMPAIGN
EXPENDITURES ON H. RES. 551, 78TH CONG., 2D SESS., 79 (1944).  SEE ALSO
ID., AT 16-17.  PAC'S METHOD OF COLLECTION OF CONTRIBUTIONS APPEARS, IN
LARGE MEASURE, TO HAVE BEEN TRUE TO HILLMAN'S WORDS, SINCE BOTH ITS
POLITICAL AND VOLUNTARY NATURE WERE WELL KNOWN.  SEE ID., AT 51, 76-79,
712-713, 728-729, 800-801, 822-823, 844-845, 851, 864-866, 871, 880,
885-886, 921-925, 928, 935-936, 941, 946, 962, 964, 988, 999, 1017,
1021-1031, 1033-1038, 1041.  IN SOME INSTANCES COMPLAINTS WERE LODGED
THAT PRESSURE HAD BEEN EXERCISED IN OBTAINING DONATIONS, AND THE HOUSE
COMMITTEE NOTED IN ITS REPORT THAT IN CALIFORNIA SOME PAC MONIES WERE
TAKEN DIRECTLY FROM UNION TREASURIES AND "THAT AT LEAST ONE LOCAL UNION
. . . UPON VOTE BY ITS ENTIRE MEMBERSHIP LEVIED AN ASSESSMENT OF 25
CENTS PER MONTH UPON EACH MEMBER.  . . . . " H.R. REP. NO. 2093, SUPRA,
N. 13, AT 6.  THIS, NEVERTHELESS, WAS RECOGNIZED AS AN EXCEPTION "(TO)
THE GENERAL NATIONAL PLAN" FOLLOWING ROOSEVELT'S NOMINATION FOR RE
ELECTION, UNDER WHICH PAC WAS GENERALLY FINANCED BY INDIVIDUAL
CONTRIBUTIONS "LARGELY . . . TAKEN BY SHOP STEWARDS OUTSIDE WORKING
HOURS."  ID., AT 5.  INDEED, THE AMOUNT OF INDIVIDUAL CONTRIBUTIONS
ACTUALLY COLLECTED BY PAC EVIDENCES THAT IT SUCCESSFULLY INFORMED CIO
MEMBERS THAT DONATIONS WERE NOT MANDATORY ASSESSMENTS.  CF. L.
OVERACKER, PRESIDENTIAL CAMPAIGN FUNDS 61 (1946).  FROM AN ESTIMATED
CIO MEMBERSHIP OF FIVE MILLION PAC MIGHT HAVE COLLECTED $5 MILLION AT
THE REQUESTED RATE OF $1 A MEMBER.  YET THE NATIONAL PAC OFFICE, WHICH
RECEIVED 50[ OF EACH $1 DONATED, OBTAINED ONLY $376,910.77 IN 1944, S.
REP. NO. 101, SUPRA, N. 14, AT 23, SUGGESTING CONTRIBUTIONS BY LESS
THAN 800,000 CIO MEMBERS.  SEE ALSO H.R. REP. NO. 2739, SUPRA, N. 13,
AT 31 ($218,415.98 RECEIVED IN 1946). 

/31/  SEE INFRA, AT 428-429. 

/32/  INDEED, IN A LETTER TO REGIONAL PAC DIRECTORS, THE NATIONAL PAC
OFFICE ITSELF REFERRED TO THE ORGANIZATION "AS AN INSTRUMENTALITY OF
THE CONGRESS OF INDUSTRIAL ORGANIZATIONS."  S. REP. NO. 101, SUPRA, N.
14, AT 22.  SEE ALSO HEARING BEFORE THE SENATE SPECIAL COMMITTEE TO
INVESTIGATE PRESIDENTIAL, VICE PRESIDENTIAL, AND SENATORIAL CAMPAIGN
EXPENDITURES ON S. RES. 263, 78TH CONG., 2D SESS., 19 (1944) (TESTIMONY
OF SIDNEY HILLMAN) ("WE JUST SPEAK AND ACT FOR THE C.I.O.
ORGANIZATIONS"); HOUSE HEARINGS, SUPRA, N. 30, AT 839-840 (TESTIMONY OF
STATE PAC PRESIDENT) (LOCAL PAC IS AGENT OF UNION LOCAL).  IT IS TRUE
THAT SENATOR TAFT STATED AT ONE POINT IN THE SENATE DEBATES THAT "(THE
PAC IS A SEPARATE ORGANIZATION WHICH RAISES ITS OWN FUNDS FOR POLITICAL
PURPOSES, AND DOES SO PERFECTLY PROPERLY."  93 CONG.REC.  6437 (1947). 
BUT IF MEANT TO INDICATE ANYTHING MORE THAN THAT PAC HAD A FORMAL
IDENTITY SEPARATE FROM THE CIO, THIS ISOLATED STATEMENT WAS CLEARLY
INCONSISTENT WITH WELL-KNOWN FACTS ABOUT THE ORGANIZATION.  MOREOVER,
NEITHER TAFT NOR ANY OF HIS COLLEAGUES APPEARS TO HAVE ATTACHED ANY
PARTICULAR SIGNIFICANCE TO THE STATEMENT.  NOR CAN WE, IN VIEW OF
TAFT'S ENDORSEMENT OF DIRECT UNION ELECTIONEERING THROUGH POLITICAL
NEWSPAPERS PAID FOR THROUGH SUBSCRIPTIONS.  SEE SUPRA, AT 406-408, 416
417.  IT IS ALSO TRUE THAT THE ATTORNEY GENERAL IN HIS LETTER TO
SENATOR MOORE IN 1944 OPINED THAT COMMITTEES LIKE PAC WERE NOT "LABOR
ORGANIZATIONS" WITHIN THE MEANING OF THE WAR LABOR DISPUTES ACT
INASMUCH AS THEY WERE NOT BARGAINING AGENCIES.  SEE N. 17, SUPRA.  BUT
THE SENATE CAMPAIGN EXPENDITURES COMMITTEE, IMPLICITLY IN 1945, AND THE
HOUSE COMMITTEE, EXPRESSLY IN 1946, REJECTED THAT CONCLUSION.  SEE S.
REP. NO. 101, SUPRA, N. 14, AT 23; H.R. REP. NO. 2739, SUPRA, N. 13, AT
43 (QUOTED IN N. 15, SUPRA).  SEE ALSO HOUSE HEARINGS, SUPRA, N. 30, AT
27 (WHETHER PAC WAS A "LABOR ORGANIZATION" "HIGHLY DEBATABLE" IN
OPINION OF PAC COUNSEL). 

/33/  THE HOUSE COMMITTEE OBSERVED IN ITS 1945 REPORT, H.R. REP. NO.
2093, SUPRA, N. 13, AT 5: 

"THE RELATIONSHIP BETWEEN THE POLITICAL ACTION COMMITTEE AND THE
CONGRESS OF INDUSTRIAL ORGANIZATION IS . . . CLOSE ON EVERY LEVEL OF
ORGANIZATION.  MR. HILLMAN IS PRESIDENT OF THE AMALGAMATED CLOTHING
WORKERS OF AMERICA, AS WELL AS CHAIRMAN OF THE POLITICAL ACTION
COMMITTEE.  THE STATE POLITICAL ACTION COMMITTEES TYPICALLY UTILIZE THE
EXISTING MECHANISM OF THE CONGRESS OF INDUSTRIAL ORGANIZATIONS STATE
COUNCILS; AND THE LOCAL POLITICAL ACTION COMMITTEES ARE SIMILARLY SET
UP AS COMMITTEES OF THE CONGRESS OF INDUSTRIAL ORGANIZATIONS LOCALS." 

/34/  THE NATIONAL PAC ORGANIZATION DID NOT ENDORSE SENATORIAL,
CONGRESSIONAL, STATE, OR LOCAL CANDIDATES, BUT GAVE ADVICE TO STATE AND
LOCAL POLITICAL ACTION COMMITTEES IN THAT REGARD.  THE NATIONAL
ORGANIZATION DID ENDORSE PRESIDENT ROOSEVELT ON MAY 17, 1944, WHEN, IN
THE WORDS OF SIDNEY HILLMAN, "SUBSTANTIALLY ALL OF THE C.I.O.
INTERNATIONAL UNIONS AND THE GREAT MAJORITY OF ITS STATE COUNCILS HAD
ALREADY ACTED.  . . . " HOUSE HEARINGS, SUPRA, N. 30, AT 8.  THE
NATIONAL ORGANIZATION ALSO ENDORSED VICE PRESIDENT TRUMAN.  CANDIDATES
FOR CONGRESS WERE APPARENTLY CHOSEN FOR ENDORSEMENT BY STATE OR LOCAL
PAC COMMITTEES COMPOSED OF REPRESENTATIVES OF THE INTERNATIONAL CIO
UNIONS AFTER REVIEW OF INCUMBENTS' VOTING RECORDS IN CONSULTATION WITH
THE REGIONAL PAC OFFICES.  SEE S. REP. NO. 101, SUPRA, N. 14, AT 21;
SENATE HEARING, SUPRA, N. 32, AT 12-13, 20-22; HOUSE HEARINGS, SUPRA,
AT 8, 39-41, 43-46, 709-712, 714-715, 725-728, 842-845, 896-898, 904,
906-908, 942-944, 949-950, 954-960, 977-979, 983-985, 993-995, 1001,
1003, 1006-1007.  PAC'S ENDORSEMENT PROCEDURES WERE DESCRIBED IN 1951
AS FOLLOWS:  THE CHAIRMAN OF THE LOCAL POLITICAL ACTION COMMITTEE, WHO
WAS USUALLY THE UNION PRESIDENT, WOULD CONSULT WITH A PROSPECTIVE
CANDIDATE TOGETHER WITH A SCREENING COMMITTEE.  IF THAT COMMITTEE ACTED
FAVORABLY, THE CANDIDATE WOULD THEN BE PRESENTED TO THE POLITICAL
ACTION COMMITTEE FOR A VOTE ON FORMAL ENDORSEMENT.  ANY ENDORSEMENT
WOULD THEN BE REPORTED TO THE CONSTITUENT UNIONS OF THE AREA PAC AND TO
THE STATE AND NATIONAL PAC OFFICES, AND ACTIVITY IN SUPPORT OF THE
CANDIDATE WOULD GET UNDER WAY.  J. KROLL, THE CIO-PAC AND HOW IT WORKS,
IN THE HOUSE OF LABOR 120, 122-123 (J. HARDMAN & M. NEUFELD EDS. 
1951). 

/35/  ACCORD, OVERACKER, SUPRA, N. 30, AT 61-62: 

"ALTHOUGH THE POLITICAL ACTION COMMITTEE OF THE CIO WAS SEPARATELY
ORGANIZED, AND IN MOST CASES ITS SEPARATE IDENTITY WAS SCRUPULOUSLY
PRESERVED, IT IS HARD TO ESCAPE THE CONCLUSION THAT IT WAS THE ALTER
EGO OF THE ORGANIZATION WHICH INSPIRED IT.  THE CIRCUMSTANCES UNDER
WHICH IT CAME INTO BEING, THE 'INTERLOCKING OF DIRECTORATES' AT THE
TOP, AND THE CLOSE COOPERATION AT THE LOCAL LEVEL ALL POINT IN THAT
DIRECTION."     /36/  "THIS FUND (HANSEN STATED) MUST BE SEPARATE FROM
ANY UNION OR CORPORATE FUNDS, AND CONTRIBUTIONS MUST BE VOLUNTARY.  TO
INSURE THAT CONTRIBUTIONS ARE VOLUNTARY, THE AMENDMENT PROHIBITS THE
USE BY THE SEPARATE POLITICAL FUND OF ANY MONEY OR ANYTHING OF VALUE
OBTAINED BY THE USE OR THREAT OF FORCE, OF JOB DISCRIMINATION, OR
FINANCIAL REPRISAL, OR BY DUES OR FEES, OR OTHER MONIES REQUIRED AS A
CONDITION OF EMPLOYMENT OR MEMBERSHIP IN A LABOR ORGANIZATION.  . . .
" 

/37/  "THE ESSENTIAL PREREQUISITE (HANSEN SAID) FOR THE VALIDITY OF
SUCH POLITICAL FUNDS IS THAT THE CONTRIBUTIONS TO THEM BE VOLUNTARY. 
FOR THAT REASON THE FINAL SECTION OF THIS AMENDMENT MAKES IT A
VIOLATION OF SECTION 610 TO USE PHYSICAL FORCE, JOB DISCRIMINATION,
FINANCIAL REPRISALS OR THE THREAT THEREOF, IN SEEKING CONTRIBUTIONS. 
THIS IS INTENDED TO INSURE THAT A SOLICITOR FOR COPE OR BIPAC (UNION
POLITICAL FUNDS) CANNOT ABUSE HIS ORGANIZATIONAL AUTHORITY IN SEEKING
POLITICAL CONTRIBUTIONS.  OF COURSE, NOTHING CAN COMPLETELY ERASE SOME
RESIDUAL EFFECTS ON THIS SCORE, ANY MORE THAN THE LAW CAN CONTROL THE
MENTAL REACTION OF A BUSINESSMAN ASKED FOR A CONTRIBUTION BY AN
INDIVIDUAL WHO HAPPENS TO BE HIS BANKER, OR OF A FARMER APPROACHED BY
THE HEAD OF HIS LOCAL FIRM ORGANIZATION.  THE PROPER APPROACH, AND THE
ONE ADOPTED HERE, IS TO PROVIDE THE STRONG ASSURANCE THAT A REFUSAL TO
CONTRIBUTE WILL NOT LEAD TO REPRISALS AND TO LEAVE THE REST TO THE
INDEPENDENCE AND GOOD SENSE OF EACH INDIVIDUAL." 

/38/  IN PARTICULAR, THE ARTICLE QUOTED "A MAN AT THE JUSTICE
DEPARTMENT" AS SAYING THAT "'(THE (HANSEN) PROVISION . . . NOT ONLY
DOESN'T CODIFY EXISTING LAW, BUT IT OVERRULES EXISTING LAW'"; STATED
THAT HANSEN HAD "(IGNORED THE COURT OF APPEALS DECISION IN THIS CASE)
THAT HOLDS THAT LABOR CAN RAISE CAMPAIGN CASH ONLY THROUGH VOLUNTARY
FUNDS THAT ARE 'SEPARATE AND DISTINCT' FROM THE SPONSORING UNION";
ASSERTED THAT UNDER THE HANSEN AMENDMENT "UNION CHIEFS . . . WOULDN'T
BE REQUIRED TO TELL MEMBERS FOR WHAT PURPOSE THE MONEY (SOLICITED) IS
GOING"; AND QUOTED AN ASSOCIATE DEPUTY ATTORNEY GENERAL AS REPORTING
THE GOVERNMENT'S POSITION TO BE "'THAT A CONTRIBUTION TO A POLITICAL
FUND (MUST) BE NOT ONLY "VOLUNTARY," IN THE SENSE OF AN ABSENCE OF
FORCE, BUT ALSO KNOWINGLY MADE.'" 

/39/  AT THIS POINT REPRESENTATIVE HAYS, A SUPPORTER OF THE HANSEN
AMENDMENT, INTERJECTED, 118 CONG.REC.  328: 

"I WILL SAY TO THE GENTLEMAN THAT WHAT HE IS SAYING WILL BE THE
LEGITIMATE LEGISLATIVE HISTORY AND THAT WHAT SOMEBODY DOWN IN THE
DEPARTMENT OF JUSTICE, SOME ASSISTANT ATTORNEY GENERAL'S OPINION (SEE
N. 38, SUPRA), IS WORTH EXACTLY AS MUCH AS THE PIECE OF PAPER IT IS
PRINTED ON, NO MORE AND NO LESS." 

/40/  SEE ALSO 117 CONG.REC.  43380 (HANSEN QUOTING APPROVINGLY SAME
STATEMENT BY SEN. DOMINICK). 

/41/  COMPARE SENATE HEARING, SUPRA, N. 32, AT 41 (REGIONAL PAC
OFFICES, TO SIDNEY HILLMAN'S KNOWLEDGE, SEPARATE FROM CIO OFFICES, AS
"WE DON'T LIKE THEM TO MIX THEIR UNION BUSINESS WITH POLITICAL
ACTIVITIES"), AND HOUSE HEARINGS, SUPRA, N. 30, AT 717, 901 (TESTIMONY
OF REGIONAL PAC DIRECTORS) (REGIONAL OFFICE FINANCED FROM NATIONAL PAC
HEADQUARTERS), WITH HOUSE HEARINGS, ID., AT 717-718, 736, 841, 857-861,
867-868, 872 (OVERLAPPING USE OF OFFICES ON STATE AND LOCAL LEVEL). 

/42/  WITH THE EXEMPTION FOR COMMUNICATIONS TO STOCKHOLDERS OR UNION
MEMBERS AND THEIR FAMILIES APPARENTLY IN MIND, HANSEN STATED, FOR
EXAMPLE, 117 CONG.REC.  43380: 

"(EVERY ORGANIZATION SHOULD BE ALLOWED TO TAKE THE STEPS NECESSARY
FOR ITS GROWTH AND SURVIVAL.  THERE IS, OF COURSE, NO NEED TO BELABOR
THE POINT THAT GOVERNMENT POLICIES PROFOUNDLY AFFECT BOTH BUSINESS AND
LABOR.  . . . IF AN ORGANIZATION, WHETHER IT BE THE NAM, THE AMA OR THE
AFL-CIO, BELIEVES THAT CERTAIN CANDIDATES POSE A THREAT TO ITS WELL
BEING OR THE WELL-BEING OF ITS MEMBERS OR STOCKHOLDERS, IT SHOULD BE
ABLE TO GET ITS VIEWS TO THOSE MEMBERS OR STOCKHOLDERS.  AS FIDUCIARIES
FOR THEIR MEMBERS AND STOCKHOLDERS THE OFFICERS OF THESE INSTITUTIONS
HAVE A DUTY TO SHARE THEIR INFORMED INSIGHTS ON ALL ISSUES AFFECTING
THEIR INSTITUTION WITH THEIR CONSTITUENTS.  BOTH UNION MEMBERS AND
STOCKHOLDERS HAVE THE RIGHT TO EXPECT THIS EXPERT GUIDANCE." 

THIS REASONING, OF COURSE, APPLIES AS WELL TO SOLICITATIONS FOR
CONTRIBUTIONS TO VOLUNTARY POLITICAL FUNDS. 

/43/  SEE, E.G., UNITED STATES V. TYNEN, 11 WALL.  88, 92 (1871): 

"(IT IS A FAMILIAR DOCTRINE THAT REPEALS BY IMPLICATION ARE NOT
FAVORED.  WHEN THERE ARE TWO ACTS ON THE SAME SUBJECT THE RULE IS TO
GIVE EFFECT TO BOTH IF POSSIBLE.  BUT IF THE TWO ARE REPUGNANT IN ANY
OF THEIR PROVISIONS, THE LATTER ACT, WITHOUT ANY REPEALING CLAUSE,
OPERATES TO THE EXTENT OF THE REPUGNANCY AS A REPEAL OF THE FIRST.  . .
. " 

/44/  THE GOVERNMENT IN RESPONSE TO THE QUESTIONS POSED IN N. 10,
SUPRA, ARGUES THAT "(HERE THERE IS NO PROBLEM OF INFERRING LEGISLATIVE
INTENT BECAUSE CONGRESS (IN THE HOUSE DEBATES) CLEARLY EXPRESSED ITS
INTENTION THAT PENDING PROSECUTIONS SHOULD NOT ABATE."  SUPPLEMENTAL
BRIEF FOR THE UNITED STATES 7.  REPRESENTATIVE HANSEN, TO BE SURE, DID
STATE IN THE DEBATE THAT THIS PROSECUTION WOULD NOT ABATE.  SEE SUPRA,
AT 425.  BUT HE ALSO INDICATED THAT THE EFFECT OF HIS AMENDMENT ON
PENDING CASES WAS NOT, AND SHOULD NOT BE, A MATTER OF CONCERN: 

"OBVIOUSLY, THE MEMBERS OF THE JOINT SENATE-HOUSE CONFERENCE
COMMITTEE WERE NOT CONCERNED ABOUT THE SUGGESTED EFFECT OF THIS
AMENDMENT ON PENDING CASES.  NOR WERE MEMBERS OF THE OTHER BODY WHO
APPROVED THE CONFERENCE REPORT BY A VOICE VOTE.  THERE IS NO REASON FOR
MEMBERS OF THIS BODY TO BE CONCERNED.  THIS IS MUCH NEEDED AND
MERITORIOUS LEGISLATION.  I STRONGLY URGE AN OVERWHELMING VOTE OF
APPROVAL."  118 CONG.REC.  329. 

MORE IMPORTANT, HANSEN'S VIEW THAT THIS PROSECUTION WOULD CONTINUE
WAS POSSIBLY PREMISED, AS WE HAVE SEEN, ON A MISTAKEN UNDERSTANDING OF
WHAT SEC. 610 PREVIOUSLY PROVIDED IN TERMS PERTINENT TO THIS CASE.  IF
HIS UNDERSTANDING WAS, IN FACT, MISTAKEN, WE WOULD HAVE TO ASSUME THAT
CONGRESS WOULD INTEND THE GENERAL RULE OF ABATEMENT "APPLICABLE AS PART
OF THE BACKGROUND AGAINST WHICH (IT) ACTS," HAMM V. ROCK HILL, 379 U.S.
306, 314 (1964), TO PREVAIL. 

/45/  THE GOVERNMENT IN RESPONSE TO THE QUESTIONS POSED IN N. 10,
SUPRA, CONFIRMS THAT THIS WAS THE THEORY OF THE PROSECUTION: 

"IN SHORT, THE CASE WAS TRIED ON THE THEORY THAT THE FUND HERE
INVOLVED WAS NOT THE KIND OF A FUND WHICH THE AMENDED STATUTE PERMITS
BUT WAS THE KIND OF A FUND WHICH WAS AND STILL IS A VIOLATION OF
FUND, SUPPORTED BY MONEY COLLECTED AS UNION MONEY AND USED, WHEN DEEMED
DESIRABLE, AS GENERAL UNION FUNDS."  SUPPLEMENTAL BRIEF FOR THE UNITED
STATES 5. 

/46/  THESE INQUIRIES WERE ADDRESSED TO PARAGRAPHS 7, 10, AND 17 OF
THE INDICTMENT, SEE N. 2, SUPRA.  COMPARABLE INQUIRES WERE GENERALLY
LEVELED AT OTHER PERTINENT PARAGRAPHS OF THE INDICTMENT. 

/47/  THE COURT ARRIVED AT THIS CONCLUSION ON THE BASIS OF UNITED
STATES V. LEWIS FOOD CO., SUPRA, N. 28, WHERE THE COURT OF APPEALS FOR
THE NINTH CIRCUIT SUSTAINED AN INDICTMENT UNDER SEC. 610 THAT FAILED TO
ALLEGE EXPRESSLY THAT AN EXPENDITURE BY A CORPORATION IN CONNECTION
WITH A FEDERAL ELECTION WAS FINANCED FROM THE GENERAL CORPORATE
TREASURY (OR, AS DISCUSSED IN N. 28, SURPA, THAT IT WAS MADE AGAINST
THE WISHES OF AN INDIVIDUAL STOCKHOLDER). 

"IN OUR OPINION (THE COURT THERE EXPLAINED), THE ALLEGATION IN THE
INDICTMENT THAT THE CORPORATION MADE AN 'EXPENDITURE' FOR THE STATED
PURPOSE, NECESSARILY INFERS (SIC) AN ALLEGATION THAT GENERAL CORPORATE
FUNDS WERE USED.  CORPORATE EXPENDITURES NORMALLY COME FROM A
CORPORATION'S GENERAL FUNDS AND NOT FROM SOME INDEPENDENT FUND
CONTRIBUTED BY SHAREHOLDERS OR OTHERWISE OBTAINED."  366 F.2D, AT 713. 

/48/  THE HEART OF THE INDICTMENT IS FOUND IN PARAGRAPH 10, WHICH
STATES, SUPRA, N. 2: 

"IT WAS A PART OF SAID CONSPIRACY THAT THE DEFENDANTS . . . WOULD
ESTABLISH AND MAINTAIN A SPECIAL FUND . . . , WHICH FUND WOULD HAVE THE
APPEARANCE OF BEING A WHOLLY INDEPENDENT ENTITY, SEPARATE AND APART
FROM LOCAL 562; AND THAT THE DEFENDANTS . . . WOULD THEREBY CONCEAL THE
FACT THAT LOCAL 562 WOULD MAKE CONTRIBUTIONS AND EXPENDITURES IN
CONNECTION WITH (FEDERAL) ELECTIONS.  . . . "

AS IN LEWIS FOOD CO., SUPRA, N. 47, IT IS A FAIR INFERENCE FROM THIS
ALLEGATION THAT THE UNION MADE PROHIBITED POLITICAL CONTRIBUTIONS AND
EXPENDITURES FROM GENERAL UNION MONIES RATHER THAN FROM THE KNOWING
FREE-CHOICE DONATIONS OF INDIVIDUAL MEMBERS.  MOREOVER, THE INDICTMENT
NOT ONLY EXPRESSLY ALLEGES THAT COLLECTIONS FOR THE FUND WERE "REGULAR
AND SYSTEMATIC" AT AN ESTABLISHED RATE, SEE PARAGRAPHS 7, 13, 15, AND
16 OF THE INDICTMENT, SUPRA, N. 2, BUT SPECIFICALLY CHARGES IN
PARAGRAPH 14, IBID.: 

"IT WAS FURTHER A PART OF THE CONSPIRACY THAT THE DEFENDANTS . . .
WOULD WAIVE AND FAIL TO ENFORCE SECTION 180 OF THE CONSTITUTION OF THE
UNITED ASSOCIATION IN ORDER TO FACILITATE THE PAYMENT OF MONIES INTO
THE FUND, BY FAILING TO COLLECT FROM NON-MEMBERS OF LOCAL 562, WORKING
UNDER ITS JURISDICTION, A REQUIRED TRAVEL CARD FEE OF NOT IN EXCESS OF
EIGHT DOLLARS ($8.00) PER MONTH, AND IN LIEU THEREOF, COLLECTING
PAYMENTS TO THE FUND AT THE RATE OF TWO DOLLARS ($2.00) PER EIGHT-HOUR
WORKING DAY FROM SUCH NON-MEMBERS." 

THESE ALLEGATIONS TOGETHER, ALTHOUGH NOT A MODEL OF CLARITY, MIGHT
(BUT WE DO NOT NOW DECIDE FOR THE REASONS STATED IN THE TEXT)
CONSTITUTE "A PLAIN, CONCISE AND DEFINITE" STATEMENT, WITHIN THE
MEANING OF RULE 7(C) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, THAT
THE CONSPIRACY INCLUDED THE ACTUAL OR EFFECTIVE ASSESSMENT OF
CONTRIBUTIONS TO THE PIPEFITTERS FUND AS PART OF THE UNION'S COMPULSORY
DUES STRUCTURE. 

/49/  COMPARE, E.G., HAGNER V. UNITED STATES, 285 U.S. 427 (1932);
UNITED STATES V. COMYNS, 248 U.S. 349 (1919), AND DUNLOP V. UNITED
STATES, 165 U.S. 486 (1897), WITH, E.G., UNITED STATES V. BOSTON & M.R.
CO., 380 U.S. 157, 159 N. 1 (1965), AND RUSSELL V. UNITED STATES, 369
U.S. 749 (1962). 

/50/  ALTHOUGH TWO OF THE PETITIONERS DIED PENDING DECISION IN THIS
CASE, SEE N. 11, SUPRA, THE GOVERNMENT MAY DECIDE ON REMAND TO SEEK A
NEW INDICTMENT AGAINST THE REMAINING PETITIONERS.  THE PRESENT
INDICTMENT CHARGES THAT THE CONSPIRACY CONTINUED UP TO THE DATE OF THE
INDICTMENT, MAY 9, 1968, AND THAT AN OVERT ACT WAS COMMITTED IN
FURTHERANCE OF THE CONSPIRACY ON JULY 14, 1967, IN WHICH CASE IT DOES
NOT APPEAR THAT THE FIVE-YEAR STATUTE OF LIMITATIONS GOVERNING
NONCAPITAL OFFENSES HAS RUN.  SEE 18 U.S.C. 3282; GRUNEWALD V. UNITED
STATES, 353 U.S. 391, 396-397 (1957).  SEE ALSO UNITED STATES V.
REISINGER, 128 U.S. 398 (1888) (INDICTMENT VALID, THOUGH RETURNED AFTER
LAW REPEALED). 

/51/  PETITIONERS OFFERED SEVEN INSTRUCTIONS ON "VOLUNTARINESS." 
TWO MERELY USED THE TERM WITHOUT FURTHER DEFINITION, WHILE OTHERS
REFERRED TO WHETHER THE CONTRIBUTIONS CONSTITUTED UNION DUES OR
ASSESSMENTS OR WERE MADE BY THE DONORS FOR POLITICAL PURPOSES.  SEE
APP. 1096-1100.  HEREAFTER, PROPER INSTRUCTIONS ON THE QUESTION OF
VOLUNTARINESS MAY BE FRAMED IN TERMS OF THE APPLICATION TO THE PROOFS
OF THE LANGUAGE OF SEC. 205 OF THE FEDERAL ELECTION CAMPAIGN ACT AS
HEREIN CONSTRUED.  SEE SUPRA, AT 421-427. 

/52/  THE COURT OF APPEALS DID NOT DIRECTLY RULE ON THE VALIDITY OF
THE INSTRUCTIONS BECAUSE, IN THE MAJORITY'S VIEW, PETITIONERS HAD
FAILED TO PRESERVE THEIR OBJECTIONS ON APPEAL.  SEE 434 F.2D,AT 1125. 
SEE ALSO ID., AT 1128 (MATTHES, C.J., CONCURRING).  THE DISSENT BELOW
MAKES A STRONG ARGUMENT TO THE CONTRARY, SEE ID., AT 1135 (LAY, J.),
BUT WE NEED NOT ADDRESS THE QUESTION, SINCE THE INSTRUCTIONS WERE
PLAINLY ERRONEOUS, THE CLAIM OF ERROR WAS BROUGHT TO THE ATTENTION OF
THE TRIAL COURT, AND WE MAY NOTICE A PLAIN ERROR NOT PRESENTED.  SEE,
E.G., SILBER V. UNITED STATES, 370 U.S. 717 (1962).  SEE ALSO 434
F.2D,AT 1130 (HEANEY, J., DISSENTING), 1135 (LAY, J., DISSENTING). 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THE DECISION OF THE COURT TODAY WILL HAVE A PROFOUND EFFECT UPON THE
ROLE OF LABOR UNIONS AND CORPORATIONS IN THE POLITICAL LIFE OF THIS
COUNTRY.  THE HOLDING, REVERSING A TREND SINCE 1907, OPENS THE WAY FOR
MAJOR PARTICIPATION IN POLITICS BY THE LARGEST AGGREGATIONS OF ECONOMIC
POWER, THE GREAT UNIONS AND CORPORATIONS.  THIS OCCURS AT A TIME,
PARADOXICALLY, WHEN PUBLIC AND LEGISLATIVE INTEREST HAS FOCUSED ON
LIMITING-- RATHER THAN ENLARGING-- THE INFLUENCE UPON THE ELECTIVE
PROCESS OF CONCENTRATIONS OF WEALTH AND POWER. 

        I 

THE MAJORITY OPINION HOLDS THAT UNIONS LAWFULLY MAY MAKE POLITICAL
CONTRIBUTIONS SO LONG AS THEY COME FROM FUNDS VOLUNTARILY GIVEN TO THE
UNION FOR SUCH PURPOSE.  THE COURT SEEKS TO BUTTRESS THIS HOLDING BY A
LONG AND SCHOLARLY PRESENTATION OF THE LEGISLATIVE HISTORY OF 18 U.S.C.
610.  BUT SOME OF THAT HISTORY INVITES CONFLICTING INFERENCES, AND THE
BACKGROUND OF SEC. 205 OF THE FEDERAL ELECTION CAMPAIGN ACT OF 1971, TO
WHICH THE MAJORITY ALSO DEVOTES EXTENSIVE ATTENTION, IS OF DUBIOUS
VALUE IN INTERPRETING AN EARLIER STATUTE WHICH ON ITS FACE IS CLEAR AND
UNAMBIGUOUS.  /1/ 

IN ITS PREOCCUPATION WITH THE LEGISLATIVE HISTORY, THE COURT HAS
OVERLOOKED THE CENTRAL POINT INVOLVED IN THIS CASE:  THAT THE
CONVICTION OF PETITIONERS ACCORDS WITH THE PLAIN LANGUAGE OF THE
CONTROLLING STATUTE.  NOR DOES THE MAJORITY DEMONSTRATE AN AMBIGUITY IN
THAT STATUTORY LANGUAGE THAT MAKES RELEVANT ITS LONG JOURNEY INTO THE
LEGISLATIVE HISTORY. 

THE OPERATIVE LANGUAGE OF SEC. 610 STATES THAT:  "IT IS UNLAWFUL . .
. FOR ANY CORPORATION WHATEVER, OR ANY LABOR ORGANIZATION TO MAKE A
CONTRIBUTION OR EXPENDITURE IN CONNECTION WITH" ANY FEDERAL ELECTION. 
DESPITE THIS UNQUALIFIED PROSCRIPTION, THE MAJORITY OPINION SUSTAINS
THE RIGHT OF UNIONS AND CORPORATIONS TO MAKE POLITICAL CONTRIBUTIONS
DIRECTLY, PROVIDED ONLY THAT THE FUNDS THEREFOR COME VOLUNTARILY FROM
MEMBERS, EMPLOYEES, OR STOCKHOLDERS AND ARE MAINTAINED SEPARATELY FROM
THE OTHER FUNDS OF THE UNION OR CORPORATION.  /2/  WITH ALL RESPECT,
THIS HOLDING IS PRECISELY CONTRARY TO THE EXPRESS LANGUAGE OF THE LAW. 
AT THE RISK OF UNNECESSARY REPETITION I SET FORTH IN JUXTAPOSITION THE
OPERATIVE LANGUAGE IN SEC. 610 AS CONTRASTED WITH THAT OF THE COURT'S
HOLDING:       SECTION 610 "IT IS UNLAWFUL . . . FOR . . . ANY LABOR
ORGANIZATION TO MAKE A CONTRIBUTION OR

  EXPENDITURE IN CONNECTION WITH ANY (FEDERAL) ELECTION.  . . . "
COURT'S HOLDING "(SECTION) 610

  DOES NOT APPLY TO UNION CONTRIBUTIONS AND EXPENDITURES FROM
POLITICAL FUNDS FINANCED IN SOME       SENSE BY THE VOLUNTARY DONATIONS
OF EMPLOYEES."  ANTE, AT 409. 

IF WORDS ARE GIVEN THEIR NORMAL MEANING, THE STATUTE AND THE COURT'S
HOLDING FLATLY CONTRADICT EACH OTHER.  ONE SAYS THAT IT SHALL BE
UNLAWFUL FOR A UNION TO MAKE A POLITICAL CONTRIBUTION OR EXPENDITURE. 
THE OTHER SAYS THIS IS PERFECTLY LAWFUL, SO LONG AS THE FUNDS WHICH THE
UNION CONTRIBUTES OR EXPENDS WERE DONATED FREELY AND KNOWINGLY.  THE
COURT HAS SIMPLY ADDED A QUALIFICATION, NOT FOUND IN THE STATUTORY
LANGUAGE, WHICH SIGNIFICANTLY CHANGES THE MEANING OF THIS ACT OF THE
CONGRESS. 

THE COURT'S HOLDING, MOREOVER, DIRECTLY COUNTERS THE PURPOSES FOR
WHICH SEC. 610 WAS ENACTED.  CONGRESS PASSED THIS LEGISLATION TO
RESTRICT AND MINIMIZE THE INFLUENCE CORPORATIONS AND UNIONS MIGHT EXERT
ON ELECTIONS.  IN UNITED STATES V. CIO, 335 U.S. 106, 113 (1948), WITH
RESPECT TO CORPORATIONS, THE COURT STATED: 

"THIS LEGISLATION SEEMS TO HAVE BEEN MOTIVATED BY TWO
CONSIDERATIONS.  FIRST, THE NECESSITY FOR DESTROYING THE INFLUENCE OVER
ELECTIONS WHICH CORPORATIONS EXERCISED THROUGH FINANCIAL CONTRIBUTION. 
SECOND, THE FEELING THAT CORPORATE OFFICIALS HAD NO MORAL RIGHT TO USE
CORPORATE FUNDS FOR CONTRIBUTION TO POLITICAL PARTIES WITHOUT THE
CONSENT OF THE STOCKHOLDERS."  IN COMMENTING ON THE REASONS FOR
EXTENDING THE LEGISLATION TO LABOR ORGANIZATIONS, THE COURT IN THE SAME
CASE OBSERVED: 

"ITS LEGISLATIVE HISTORY INDICATES CONGRESSIONAL BELIEF THAT LABOR
UNIONS SHOULD THEN BE PUT UNDER THE SAME RESTRAINTS AS HAD BEEN IMPOSED
UPON CORPORATIONS.  IT WAS FELT THAT THE INFLUENCE WHICH LABOR UNIONS
EXERCISED OVER ELECTIONS THROUGH MONETARY EXPENDITURES SHOULD BE
MINIMIZED, AND THAT IT WAS UNFAIR TO INDIVIDUAL UNION MEMBERS TO PERMIT
THE UNION LEADERSHIP TO MAKE CONTRIBUTIONS FROM GENERAL UNION FUNDS TO
A POLITICAL PARTY WHICH THE INDIVIDUAL MEMBER MIGHT OPPOSE."  ID., AT
115. 

THE TWO PRINCIPAL MOTIVATIONS FOR THE ENACTMENT OF SEC. 610, AS
IDENTIFIED IN CIO, ARE (I) THE MINIMIZING OF INFLUENCE OF LABOR UNIONS
(AS WELL AS CORPORATIONS) ON ELECTIONS "THROUGH MONETARY EXPENDITURES";
AND (II) THE ELIMINATION OF THE UNFAIRNESS "TO INDIVIDUAL UNION
MEMBERS" OF ALLOWING UNION MANAGEMENT TO MAKE POLITICAL CONTRIBUTIONS
FROM GENERAL UNION FUNDS.  IT SEEMS SELF-EVIDENT THAT BOTH OF THESE
LEGISLATIVE PURPOSES WILL BE FRUSTRATED BY THE COURT'S HOLDING THAT,
DESPITE THE LANGUAGE OF THE STATUTE FORBIDDING UNION CONTRIBUTIONS,
UNIONS MAY NOW MAKE POLITICAL CONTRIBUTIONS AND EXPENDITURES, PROVIDED
ONLY THAT THE SOURCE OF A FUND IS VOLUNTARY. 

TO BE SURE, THERE IS SOME LANGUAGE IN THE CONGRESSIONAL DEBATES
WHICH EMPHASIZES THE FREEDOM OF UNION MEMBERS, AS WELL AS THAT OF
EMPLOYEES AND STOCKHOLDERS OF CORPORATIONS, TO MAKE UNCOERCED POLITICAL
CONTRIBUTIONS.  NO ONE CONTESTS THIS BASIC FREEDOM.  BUT WHATEVER MAY
HAVE BEEN SAID IN CONGRESSIONAL DEBATES, COURTS ARE BOUND BY WHAT IS
WRITTEN INTO LEGISLATION.  IF THE LANGUAGE OF A STATUTE IS CLEAR AND
UNAMBIGUOUS THERE IS NO OCCASION TO RESORT TO LEGISLATIVE HISTORY.  NOR
CAN SUCH HISTORY, HOWEVER ILLUMINATING IT MAY SEEM, BE RELIED UPON TO
CONTRADICT, OR DILUTE, OR ADD UNSPECIFIED CONDITIONS TO STATUTORY
LANGUAGE WHICH IS PERFECTLY CLEAR.  WHERE STATUTORY PROVISIONS WERE
"CLEAR AND UNEQUIVOCAL ON THEIR FACE," THE COURT HAS FOUND "NO NEED TO
RESORT TO THE LEGISLATIVE HISTORY OF THE ACT."  UNITED STATES V.
OREGON, 366 U.S. 643, 648 (1961).  AS JUSTICE BLACK OBSERVED, "(NO
LEGISLATIVE HISTORY CAN JUSTIFY JUDICIAL EMASCULATION" OF THE
UNAMBIGUOUS LANGUAGE OF A STATUTE.  MARYLAND CASUALTY CO. V. CUSHING,
347 U.S. 409, 437 (1954) (DISSENTING).  /3/

        II 

ACCEPTING, AS I THINK WE MUST, SEC. 610 AS WRITTEN, THE ISSUE IN
THIS CASE IS WHETHER THE POLITICAL FUND OF LOCAL 562 WAS IN REALITY A
SHAM OR SUBTERFUGE THROUGH WHICH THE UNION ITSELF MADE THE
CONTRIBUTIONS FORBIDDEN BY THE STATUTE.  THE INDICTMENT IN THIS CASE
WAS FRAMED ON THIS BASIS, AND THE JURY WAS SO INSTRUCTED.  THE QUESTION
PROPERLY ADDRESSED BY THE COURT OF APPEALS WAS "WHETHER THE
CONTRIBUTIONS OR EXPENDITURES WERE (IN FACT) MADE BY A LABOR
ORGANIZATION."  434 F.2D 1116, 1121 (1970).  AFTER SUMMARIZING THE
EVIDENCE SUBMITTED TO THE JURY ON THIS ISSUE, THE COURT OF APPEALS
CONCLUDED: 

"THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT A JURY FINDING THAT THE
FUND WAS NOT A BONA FIDE SEPARATE AND DISTINCT ENTITY BUT WAS IN FACT A
DEVICE SET UP TO CIRCUMVENT THE PROVISIONS OF SEC. 610 AND THAT THE
FUND CONSTITUTED UNION MONEY."  434 F.2D,AT 1121.  IT IS NOT NORMALLY
THE FUNCTION OF THIS COURT IN A CASE OF THIS KIND TO DETERMINE WHETHER
A JURY VERDICT IS SUPPORTED BY SUBSTANTIAL EVIDENCE.  IT MAY NOT BE
INAPPROPRIATE, HOWEVER, TO SAY-- IN LIGHT OF THE RECORD BEFORE US--
THAT THE EVIDENCE WAS MORE THAN SUFFICIENT TO SHOW THAT UNION OFFICIALS
SUPERVISED CLOSELY THE COLLECTION OF THE "CONTRIBUTIONS," SOUGHT
"CONTRIBUTIONS" IN MUCH THE SAME MANNER AS COMPULSORY ASSESSMENTS,
VIEWED THEM AS PART OF THE TOTAL COST BURDEN WHICH THE UNION MEMBER HAD
TO BEAR, EXPENDED THEM FREELY BOTH FOR UNION PROJECTS AND POLITICAL
PURPOSES, AND SO GENERALLY COMMINGLED THE ADMINISTRATION OF THE FUND
WITH THE ADMINISTRATION OF THE UNION AS TO ENTITLE THE JURY TO BELIEVE
THE GIFTS BY LOCAL 562 FROM THE FUND TO CANDIDATES FOR FEDERAL OFFICE
CONSTITUTED UNION POLITICAL CONTRIBUTIONS IN VIOLATION OF SEC. 610. 
/4/ 

THE MAJORITY OPINION OF THIS COURT DOES NOT CONTEST THIS VIEW.  IT
CONCLUDES, RATHER, THAT THE JURY WAS ERRONEOUSLY INSTRUCTED, AND THAT
ACCORDINGLY THE VERDICT AND JUDGMENT MUST BE SET ASIDE.  IF A NEW TRIAL
IS HELD, THE JURY MUST BE INSTRUCTED IN ACCORDANCE WITH THE COURT'S
INTERPRETATION OF SEC. 610 THAT A UNION MAY LAWFULLY MAKE POLITICAL
CONTRIBUTIONS FROM A FUND IT COLLECTS AND ADMINISTERS SO LONG AS THE
PAYMENTS INTO IT ARE VOLUNTARY. 

IT IS FROM THIS INTERPRETATION OF SEC. 610-- ONE WHICH IN MY VIEW
WILL RENDER THE STATUTE LARGELY INEFFECTUAL-- THAT I DISSENT.  /5/

        III 

THE CONSEQUENCES OF TODAY'S DECISION COULD BE FAR-REACHING INDEED. 
THE OPINION OF THE COURT PROVIDES A BLUEPRINT FOR COMPLIANCE WITH SEC.
610, AS NOW CONSTRUED, WHICH WILL BE WELCOMED BY EVERY CORPORATION AND
UNION WHICH WISHES TO TAKE ADVANTAGE OF A HERETOFORE UNRECOGNIZED
OPPORTUNITY TO INFLUENCE ELECTIONS IN THIS COUNTRY.  /6/ 

IT MAY BE THAT THE UNIONS, BY VIRTUE OF A SYSTEM OF COLLECTING
"POLITICAL CONTRIBUTIONS" SIMULTANEOUSLY WITH THE COLLECTION OF DUES
AND REGULARIZING SUCH COLLECTIONS TO THE POINT WHERE THEY ARE
INDISTINGUISHABLE FROM DUES, WILL BE THE PRIMARY BENEFICIARIES.  BUT
THE CORPORATIONS ARE MORE NUMEROUS THAN THE UNIONS.  THEY HAVE MILLIONS
OF STOCKHOLDERS AND HUNDREDS OF THOUSANDS OF NONUNION EMPLOYEES.  BOTH
UNIONS AND CORPORATIONS HAVE LARGE FINANCIAL RESOURCES.  TODAY'S
INTERPRETATION OF SEC. 610 WILL ENABLE A MORE DIRECT AND EXTENSIVE
POLITICAL EMPLOYMENT OF THESE RESOURCES BY BOTH UNION AND CORPORATION. 

BY REFUSING TO AFFIRM THE JUDGMENT BELOW, THE MAJORITY RENDERS THE
ULTIMATE FATE OF THIS LITIGATION UNCERTAIN.  IF, ON REMAND, THE
TECHNIQUES OF LOCAL 562 SHOULD BE SANCTIONED, OTHER UNIONS AND
CORPORATIONS COULD EASILY FOLLOW LOCAL 562 AND OBTAIN FROM MEMBERS,
EMPLOYEES, AND SHAREHOLDERS A CONSENT FROM ATTESTING THAT THE
CONTRIBUTION (OR WITHHOLDING) IS "VOLUNTARY."  THE TRAPPINGS OF
VOLUNTARINESS MIGHT BE ACHIEVED WHILE THE SUBSTANCE OF COERCION
REMAINED.  UNION MEMBERS AND CORPORATE EMPLOYEES MIGHT FIND THEMSELVES
THE OBJECTS OF REGULAR AND SYSTEMATIZED SOLICITATION BY THE VERY AGENT
WHICH EXERCISES DIRECT CONTROL OVER THEIR JOBS AND LIVELIHOOD. 

THE ONLY REMAINING REQUIREMENT TO MEET THE NEW STANDARDS IS THAT THE
FUND BE SEPARATE FROM OTHER UNION OR CORPORATE FUNDS, ALTHOUGH UNDER
THE MAJORITY'S INTERPRETATION OF SEC. 205 IT MAY BE ESTABLISHED AND
ADMINISTERED, AND THE CONTRIBUTIONS TO IT SOLICITED, BY THE UNION OR
CORPORATION WITH ITS OWN FUNDS.  AGAIN, IF LOCAL 562 WERE TO PROVIDE
THE STANDARDS, THE SEPARATENESS OF SUCH A FUND NEED BE NOTHING MORE
THAN A SEPARATE LEDGER AND BANK ACCOUNT. 

IN SUM, THE OPINION OF THE COURT TODAY, ADOPTING AN INTERPRETATION
OF SEC. 610 AT VARIANCE WITH ITS LANGUAGE AND PURPOSE, GOES A LONG WAY
TOWARD RETURNING UNIONS AND CORPORATIONS TO AN UNREGULATED STATUS WITH
RESPECT TO POLITICAL CONTRIBUTIONS.  THIS OPENING OF THE DOOR TO
EXTENSIVE CORPORATE AND UNION INFLUENCE ON THE ELECTIVE AND LEGISLATIVE
PROCESSES MUST BE VIEWED WITH GENUINE CONCERN.  THIS SEEMS TO ME TO BE
A REGRESSIVE STEP AS CONTRASTED WITH THE NUMEROUS LEGISLATIVE AND
JUDICIAL ACTIONS IN RECENT YEARS DESIGNED TO ASSURE THAT ELECTIONS ARE
INDEED FREE AND REPRESENTATIVE. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  THE MAJORITY OPINION FINDS CONFIRMATION OF ITS INTERPRETATION
OF THE LEGISLATIVE HISTORY OF SEC. 610 IN THE RECENTLY ENACTED SEC. 205
OF THE FEDERAL ELECTION CAMPAIGN ACT OF 1971.  THE MAJORITY CONCLUDES,
HOWEVER, THAT SEC. 205 IS NOT RETROACTIVE AND THEREFORE IS INAPPLICABLE
TO THIS CASE, A VIEW WHICH I SHARE.  I FIND IT UNNECESSARY TO THE
DISPOSITION OF THIS CASE TO INTERTWINE THE LEGISLATIVE HISTORY OF THE
TWO STATUTES WHEN ONLY ONE OF THEM IS APPLICABLE. 

/2/  THE ALLEGED SEPARATE FUND INVOLVED IN THIS CASE WAS SEGREGATED
ONLY IN THE SENSE THAT THERE WAS A SEPARATE LEDGER AND BANK ACCOUNT. 
THE COURT OF APPEALS HELD THAT THERE WAS "SUBSTANTIAL EVIDENCE TO
SUPPORT A JURY FINDING THAT THE FUND WAS NOT A BONA FIDE SEPARATE AND
DISTINCT ENTITY."  434 F.2D 1116, 1121 (1970).  THE DECISION OF THE
MAJORITY FOCUSES ATTENTION ON THE ISSUE OF VOLUNTARINESS AND GIVES
LITTLE INDICATION THAT A MORE REALISTIC SEGREGATION OF THE FUND IS
REQUIRED. 

/3/  IT HAS BEEN AN ANCIENT AND CARDINAL TENET OF STATUTORY
CONSTRUCTION THAT "WHERE A LAW IS EXPRESSED IN PLAIN AND UNAMBIGUOUS
TERMS, WHETHER THOSE TERMS ARE GENERAL OR LIMITED, THE LEGISLATURE
SHOULD BE INTENDED TO MEAN WHAT THEY HAVE PLAINLY EXPRESSED, AND
CONSEQUENTLY NO ROOM IS LEFT FOR CONSTRUCTION."  LAKE COUNTY V.
ROLLINS, 130 U.S. 662, 670-671 (1889); YATES V. UNITED STATES, 354 U.S.
298, 305 (1957); UNITED STATES V. STANDARD BREWERY, 251 U.S. 210, 217
(1920). 

/4/  EVEN ON THE ISSUE OF VOLUNTARINESS, WHICH THE COURT OF APPEALS
RIGHTLY FOUND "RELEVANT AND MATERIAL" THOUGH "NOT CONTROLLING," 434
F.2D,AT 1120, THE EVIDENCE WAS IMPRESSIVE THAT THE COLLECTION SCHEME
WAS INHERENTLY COERCIVE.  SINCE LOCAL 562 HAD CONSISTENTLY COLLECTED
CONTRIBUTIONS TO ITS POLITICAL FUNDS SINCE 1949, "CONTRIBUTIONS" APPEAR
TO HAVE BECOME A CUSTOMARY DE FACTO CONDITION TO UNION MEMBERSHIP OR
EMPLOYMENT WITHIN LOCAL 562'S JURISDICTION.  MOREOVER, THE REGULARITY
OF THESE CONTRIBUTIONS-- WEEK BY WEEK AND YEAR BY YEAR AND EACH IN THE
SAME AMOUNT AS REQUESTED BY THE UNION-- SEEMS SUPSICIOUSLY INCOMPATIBLE
WITH THE CONCEPT OF FREE-WILL GIFTS. 

/5/  MY INTERPRETATION OF THE STATUTE DOES NOT IMPLY THAT NO
"SEPARATE FUND" WOULD BE PERMISSIBLE.  I RECOGNIZE THAT, CONSISTENTLY
WITH THE STATUTE (AS AMENDED BY SEC. 205), A UNION OR CORPORATION MAY
BE INSTRUMENTAL IN ESTABLISHING A POLITICAL FUND, PROVIDED IT IS A BONA
FIDE ONE-- SEPARATE AND SEGREGATED FROM THE UNION IN A GENUINE, NOT
MERELY FORMALISTIC, WAY.  FOR EXAMPLE, SUCH A FUND MIGHT BE MANAGED BY
A SEPARATE NONPROFIT ENTITY, WITH INDEPENDENT TRUSTEES NOT SUBSERVIENT
TO THE UNION OR CORPORATE SPONSOR, WHO ENGAGE INDEPENDENT AUDITORS, WHO
MAKE REGULAR REPORTS TO CONTRIBUTORS, AND WHO PROVIDE REALISTIC MEANS
BY WHICH CONTRIBUTORS CAN EXPRESS THEIR PREFERENCE AS TO POLITICAL
CANDIDATES OR PARTIES.  SAFEGUARDS WOULD BE REQUIRED TO ASSURE THAT
CONTRIBUTIONS WERE NOT COERCED, EITHER DIRECTLY OR BY MEANS OR AN
INHERENTLY COERCIVE SYSTEM OR RELATIONSHIP.  SUCH A BONA FIDE FUND
WOULD CONTRAST QUITE SHARPLY WITH THAT OPERATED BY LOCAL 562, WHERE
THERE WERE NO BYLAWS, NO CONSTITUTION, NO INDEPENDENT TRUSTEES, NO
AUDIT, NO REPORT TO CONTRIBUTORS, OR OTHER INDICATIONS OF GENUINE
SEPARATENESS OR SEGREGATION; AND WHERE THE UNION ITSELF COLLECTED,
OPERATED, AND EXPENDED THE "CONTRIBUTIONS" IN SUBSTANTIALLY THE SAME
MANNER AS UNION DUES AND ASSESSMENTS. 

/6/  I RECOGNIZE, OF COURSE, THAT THE RECENT ENACTMENT OF SEC. 205
OF THE FEDERAL ELECTION CAMPAIGN ACT OF 1971 HAS SUPPLEMENTED AND
EXTENDED SEC. 610 IN DEFINING PERMISSIBLE LIMITS OF UNION AND CORPORATE
CONTRIBUTIONS.  BUT SEC. 205 STILL LEAVES INTACT THE OPERATIVE LANGUAGE
OF SEC. 610 WHICH EXPLICITLY PROSCRIBES POLITICAL CONTRIBUTIONS BY
UNIONS AND CORPORATIONS.  THE INTERPRETATIVE GLOSS TODAY ADDED
UNNECESSARILY ON THIS LANGUAGE WILL RESULT IN RENDERING INEFFECTUAL THE
BASIC INTENTION OF THE CONGRESS TO PREVENT THE INTRUSION OF CORPORATE
AND UNION POWER INTO OUR POLITICAL SYSTEM. 

MORRIS A. SHENKER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE JAMES F. NANGLE, JR., JOHN L. BOEGER, CORDELL SIEGEL, MURRY
L. RANDALL, AND RICHARD L. DALY. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES.  ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ACTING
ASSISTANT ATTORNEY GENERAL PETERSEN, ALLAN A. TUTTLE, AND BEATRICE
ROSENBERG.     BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY J.
ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN
FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND BY
ARTHUR J. HILLAND AND PLATO CACHERIS FOR OFFICERS OF THE UNITED MINE
WORKERS OF AMERICA. 

JOHN L. KILCULLEN FILED A BRIEF FOR THE NATIONAL RIGHT TO WORK LEGAL
DEFENSE FOUNDATION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :






















WRIGHT V. COUNCIL OF CITY OF EMPORIA, 407 U.S. 451 


       WRIGHT ET AL. V. COUNCIL OF THE CITY OF EMPORIA ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 70-188.  ARGUED MARCH 1, 1972-- DECIDED JUNE 22, 1972 


IN 1967, EMPORIA, VIRGINIA, WHICH IS LOCATED IN THE CENTER OF
GREENSVILLE COUNTY, CHANGED FROM A "TOWN" TO A POLITICALLY INDEPENDENT
"CITY" AUTHORIZED BY STATE LAW TO PROVIDE ITS OWN PUBLIC SCHOOL
SYSTEM.  BY A SHARED-COST AGREEMENT WITH THE COUNTRY, EMPORIA IN 1968
CONTINUED AN ARRANGEMENT, WHICH ANTEDATED ITS CHANGE OF STATUS, TO USE
THE COUNTY PUBLIC SCHOOL SYSTEM FOR EDUCATION OF ITS CHILDREN.  AS A
CONSEQUENCE OF THE PRESENT DESEGREGATION LAWSUIT INITIATED IN 1965, THE
SINGLE SCHOOL DIVISION WAS OPERATING UNDER A "FREEDOM OF CHOICE" PLAN
APPROVED BY THE DISTRICT COURT.  PETITIONERS MOVED TO MODIFY THAT PLAN
FOLLOWING THIS COURT'S DECISION IN GREEN V. COUNTY SCHOOL BOARD, 391
U.S. 430.  THE DISTRICT COURT, AFTER A HEARING, ON JUNE 25, 1969,
ORDERED PETITIONERS'"PAIRING" PLAN, TO TAKE EFFECT AS OF THE START OF
THE 1969-1970 SCHOOL YEAR.  TWO WEEKS AFTER ENTRY OF THE DISTRICT
COURT'S DECREE, THE CITY ANNOUNCED ITS PLAN TO OPERATE A SEPARATE
SCHOOL SYSTEM AND SOUGHT TERMINATION OF THE 1968 AGREEMENT.  ON AUGUST
1, 1969, PETITIONERS FILED A SUPPLEMENTAL COMPLAINT SEEKING TO ENJOIN
THE CITY COUNCIL AND SCHOOL BOARD (NAMED AS ADDITIONAL PARTIES
DEFENDANT) FROM WITHDRAWING EMPORIA CHILDREN FROM THE COUNTY SCHOOLS. 
FOLLOWING HEARINGS, THE DISTRICT COURT FOUND THAT THE EFFECT OF
EMPORIA'S WITHDRAWAL WOULD BE A "SUBSTANTIAL INCREASE IN THE PROPORTION
OF WHITES IN THE SCHOOLS ATTENDED BY CITY RESIDENTS, AND A CONCOMITANT
DECREASE IN THE COUNTY SCHOOLS."  IN ADDITION TO THE DISPARITY IN
RACIAL PERCENTAGES, THE COURT FOUND THAT THE PROPORITION OF WHITES IN
COUNTY SCHOOLS MIGHT DROP AS COUNTY-SCHOOL WHITES SHIFTED TO PRIVATE
ACADEMIES, WHILE SOME WHITES MIGHT RETURN TO CITY SCHOOLS FROM THE
ACADEMIES THEY PREVIOUSLY ATTENDED; THAT TWO FORMERLY ALL-WHITE SCHOOLS
(BOTH BETTER EQUIPPED AND BETTER LOCATED THAN THE COUNTY SCHOOLS) ARE
IN EMPORIA, WHILE ALL THE SCHOOLS IN THE SURROUNDING COUNTY WERE
FORMERLY ALL-NEGRO; AND THAT EMPORIA, WHICH LONG HAD THE RIGHT TO
ESTABLISH A SEPARATE SCHOOL SYSTEM, DID NOT DECIDE TO DO SO UNTIL THE
COURT'S ORDER PREVENTED THE COUNTY FROM CONTINUING ITS LONG-MAINTAINED
SEGREGATED SCHOOL SYSTEM.  THE COURT CONCLUDED THAT EMPORIA'S
WITHDRAWAL WOULD FRUSTRATE THE JUNE 25 DECREE, AND ENJOINED RESPONDENTS
FROM PURSUING THEIR PLAN.  HOLDING THAT THE QUESTION WHETHER NEW SCHOOL
DISTRICT BOUNDARIES SHOULD BE PERMITTED IN AREAS WITH A HISTORY OF
STATE-ENFORCED RACIAL SEGREGARION MUST BE RESOLVED IN TERMS OF THE
"DOMINANT PURPOSE OF (THE) BOUNDARY REALIGNMENT," THE COURT OF APPEALS
CONCLUDED THAT EMPORIA'S PRIMARY PURPOSE WAS "BENIGN" AND NOT A MERE
"COVER-UP" FOR RACIAL DISCRIMINATION, AND REVERSED.  HELD: 

1.  IN DETERMINING WHETHER REALIGNMENT OF SCHOOL DISTRICTS BY
OFFICIALS COMPORTS WITH THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT,
COURTS WILL BE GUIDED, NOT BY THE MOTIVATION OF THE OFFICIALS, BUT BY
THE EFFECT OF THEIR ACTION.  PP. 461-462. 

2.  IN THE TOTALITY OF THE CIRCUMSTANCES OF THIS CASE, THE DISTRICT
COURT WAS JUSTIFIED IN CONCLUDING THAT EMPORIA'S ESTABLISHMENT OF A
SEPARATE SCHOOL SYSTEM WOULD IMPEDE THE PROCESS OF DISMANTLING THE
SEGREGATED SCHOOL SYSTEM.  PP. 463-471. 

442 F.2D 570, REVERSED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, WHITE, AND MARSHALL, JJ., JOINED.  BURGER, C.J., FILED A
DISSENTING OPINION, IN WHICH BLACKMUN, POWELL, AND REHNQUIST, JJ.,
JOINED, POST, P. 471. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE, AS IN NO. 70-130, UNITED STATES
V. SCOTLAND NECK CITY BOARD OF EDUCATION, /1/  POST, P. 484, TO
CONSIDER THE CIRCUMSTANCES UNDER WHICH A FEDERAL COURT MAY ENJOIN STATE
OR LOCAL OFFICIALS FROM CARVING OUT A NEW SCHOOL DISTRICT FROM AN
EXISTING DISTRICT THAT HAS NOT YET COMPLETED THE PROCESS OF DISMANTLING
A SYSTEM OF ENFORCED RACIAL SEGREGATION.  WE DID NOT ADDRESS OURSELVES
TO THIS RATHER NARROW QUESTION IN SWANN V. CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION, 402 U.S. 1, AND ITS COMPANION CASES DECIDED LAST TERM,
/2/  BUT THE PROBLEM HAS CONFRONTED OTHER FEDERAL COURTS IN ONE FORM OR
ANOTHER ON NUMEROUS OCCASIONS IN RECENT YEARS.  /3/  HERE, AS IN
SCOTLAND NECK, THE COURT OF APPEALS REVERSED A DISTRICT COURT DECISION
ENJOINING THE CREATION OF A NEW SCHOOL DISTRICT.  442 F.2D 570.  WE
CONCLUDE THAT THE COURT OF APPEALS ERRED IN ITS INTERPRETATION OF THE
LEGAL PRINCIPLES APPLICABLE IN CASES SUCH AS THESE, AND THAT THE
DISTRICT COURT'S ORDER WAS PROPER IN THE CIRCUMSTANCES OF THIS CASE. 

        I 

THE CITY OF EMPORIA LIES NEAR THE CENTER OF GREENSVILLE COUNTY,
VIRGINIA, A LARGELY RURAL AREA LOCATED ON THE NORTH CAROLINA BORDER. 
UNTIL 1967, EMPORIA WAS A "TOWN" UNDER VIRGINIA LAW, WHICH MEANT THAT
IT WAS A PART OF THE SURROUNDING COUNTY FOR PRACTICALLY ALL PURPOSES,
INCLUDING THE PURPOSE OF PROVIDING PUBLIC EDUCATION FOR CHILDREN
RESIDING IN THE COUNTY. 

IN 1967, EMPORIA, APPARENTLY DISSATISFIED WITH THE COUNTY'S
ALLOCATION OF REVENUES FROM THE NEWLY ENACTED STATE SALES TAX,
SUCCESSFULLY SOUGHT DESIGNATION AS A "CITY OF THE SECOND CLASS."  /4/
AS SUCH, IT BECAME POLITICALLY INDEPENDENT FROM THE SURROUNDING COUNTY,
AND UNDERTOOK A SEPARATE OBLIGATION UNDER STATE LAW TO PROVIDE FREE
PUBLIC SCHOOLING TO CHILDREN RESIDING WITHIN ITS BORDERS.  /5/  TO
FULFILL THIS RESPONSIBILITY, EMPORIA AT FIRST SOUGHT THE COUNTY'S
AGREEMENT TO CONTINUE OPERATING THE SCHOOL SYSTEM ON VIRTUALLY THE SAME
BASIS AS BEFORE, WITH EMPORIA SHARING IN THE ADMINISTRATION AS WELL AS
THE FINANCING OF THE SCHOOLS.  /6/  WHEN THE COUNTY OFFICIALS REFUSED
TO ENTER INTO AN ARRANGEMENT OF THIS KIND, EMPORIA AGREED TO A CONTRACT
WHEREBY THE COUNTY WOULD CONTINUE TO EDUCATE STUDENTS RESIDING IN THE
CITY IN EXCHANGE FOR EMPORIA'S PAYMENT OF A SPECIFIED SHARE OF THE
TOTAL COST OF THE SYSTEM.  UNDER THIS AGREEMENT, SIGNED IN APRIL 1968,
EMPORIA HAD A FORMAL VOICE IN THE ADMINISTRATION OF THE SCHOOLS ONLY
THROUGH ITS PARTICIPATION IN THE SELECTION OF A SUPERINTENDENT.  THE
CITY AND COUNTY WERE DESIGNATED AS A SINGLE SCHOOL "DIVISION" BY THE
STATE BOARD OF EDUCATION, /7/  AND THIS ARRANGEMENT WAS STILL IN EFFECT
AT THE TIME OF THE DISTRICT COURT'S ORDER CHALLENGED IN THIS CASE. 

THIS LAWSUIT BEGAN IN 1965, WHEN A COMPLAINT WAS FILED ON BEHALF OF
NEGRO CHILDREN SEEKING AN END TO STATE-ENFORCED RACIAL SEGREGATION IN
THE GREENSVILLE COUNTY SCHOOL SYSTEM.  PRIOR TO 1965, THE ELEMENTARY
AND HIGH SCHOOLS LOCATED IN EMPORIA SERVED ALL WHITE CHILDREN IN THE
COUNTY, WHILE NEGRO CHILDREN THROUGHOUT THE COUNTY WERE ASSIGNED TO A
SINGLE HIGH SCHOOL OR ONE OF FOUR ELEMENTARY SCHOOLS, ALL BUT ONE OF
WHICH WERE LOCATED OUTSIDE THE EMPORIA TOWN BOUNDARY.  IN JANUARY 1966,
THE DISTRICT COURT APPROVED A SO-CALLED "FREEDOM OF CHOICE" PLAN THAT
HAD BEEN ADOPTED BY THE COUNTY IN APRIL OF THE PREVIOUS YEAR.  WRIGHT
V. SCHOOL BOARD OF GREENSVILLE COUNTY, 252 F.SUPP.  378.  NO WHITE
STUDENTS EVER ATTENDED THE NEGRO SCHOOLS UNDER THIS PLAN, AND IN THE
1968-1969 SCHOOL YEAR ONLY 98 OF THE COUNTY'S 2,510 NEGRO STUDENTS
ATTENDED WHITE SCHOOLS.  THE SCHOOL FACULTIES REMAINED COMPLETELY
SEGREGATED. 

FOLLOWING OUR DECISION IN GREEN V. COUNTY SCHOOL BOARD, 391 U.S.
430, HOLDING THAT A FREEDOM-OF-CHOICE PLAN WAS AN UNACCEPTABLE METHOD
OF DESEGREGATION WHERE IT FAILED "TO PROVIDE MEANINGFUL ASSURANCE OF
PROMPT AND EFFECTIVE DISESTABLISHMENT OF A DUAL SYSTEM,"  ID., AT 438,
THE PETITIONERS FILED A MOTION FOR FURTHER RELIEF.  THE DISTRICT COURT
ORDERED THE COUNTY TO DEMONSTRATE ITS COMPLIANCE WITH THE HOLDING IN
GREEN, OR TO SUBMIT A PLAN DESIGNED TO BRING THE SCHOOLS INTO
COMPLIANCE.  AFTER VARIOUS DELAYS, DURING WHICH THE FREEDOM-OF-CHOICE
SYSTEM REMAINED IN EFFECT, THE COUNTY SUBMITTED TWO ALTERNATIVE PLANS. 
THE FIRST WOULD HAVE PRESERVED THE EXISTING SYSTEM WITH SLIGHT
MODIFICATIONS, AND THE SECOND WOULD HAVE ASSIGNED STUDENTS TO SCHOOLS
ON THE BASIS OF CURRICULAR CHOICES OR STANDARDIZED TEST SCORES.  THE
DISTRICT COURT PROMPTLY REJECTED THE FIRST OF THESE PROPOSALS, AND TOOK
THE SECOND UNDER ADVISEMENT.  MEANWHILE, THE PETITIONERS SUBMITTED
THEIR OWN PROPOSAL, UNDER WHICH ALL CHILDREN ENROLLED IN A PARTICULAR
GRADE LEVEL WOULD BE ASSIGNED TO THE SAME SCHOOL, THUS ELIMINATING ANY
POSSIBILITY OF RACIAL BIAS IN PUPIL ASSIGNMENTS.  FOLLOWING AN
EVIDENTIARY HEARING ON JUNE 23, 1969, THE DISTRICT COURT REJECTED THE
COUNTY'S ALTERNATIVE PLAN, FINDING THAT IT WOULD "SUBSTITUTE . . . ONE
SEGREGATED SCHOOL SYSTEM FOR ANOTHER SEGREGATED SCHOOL SYSTEM."  BY AN
ORDER DATED JUNE 25, THE COURT ORDERED THE COUNTY TO IMPLEMENT THE PLAN
SUBMITTED BY THE PETITIONERS, REFERRED TO BY THE PARTIES AS THE
"PAIRING" PLAN, AS OF THE START OF THE 1969-1970 SCHOOL YEAR.  /8/ 

TWO WEEKS AFTER THE DISTRICT COURT ENTERED ITS DECREE, THE EMPORIA
CITY COUNCIL SENT A LETTER TO THE COUNTY BOARD OF SUPERVISORS
ANNOUNCING THE CITY'S INTENTION TO OPERATE A SEPARATE SCHOOL SYSTEM
BEGINNING IN SEPTEMBER.  THE LETTER STATED THAT AN "IN-DEPTH STUDY AND
ANALYSIS OF THE DIRECTED SCHOOL ARRANGEMENT REFLECTS A TOTALLY
UNACCEPTABLE SITUATION TO THE CITIZENS AND CITY COUNCIL OF THE CITY OF
EMPORIA."  IT ASKED THAT THE 1968 CITY-COUNTY AGREEMENT BE TERMINATED
BY MUTUAL CONSENT, AND THAT TITLE TO SCHOOL PROPERTY LOCATED WITHIN
EMPORIA BE TRANSFERRED TO THE CITY.  THE LETTER FURTHER ADVISED THAT
CHILDREN RESIDING IN THE COUNTY WOULD BE PERMITTED TO ENROLL IN THE
CITY SCHOOLS ON A TUITION BASIS.  /9/  AT NO TIME DURING THIS PERIOD
DID THE CITY OFFICIALS MEET WITH THE COUNTY COUNCIL OR SCHOOL BOARD TO
DISCUSS THE IMPLEMENTATION OF THE PAIRING DECREE, NOR DID THEY INFORM
THE DISTRICT COURT OF THEIR INTENTIONS WITH RESPECT TO THE SEPARATE
SCHOOL SYSTEM. 

THE COUNTY SCHOOL BOARD REFUSED EITHER TO TERMINATE THE EXISTING
AGREEMENT OR TO TRANSFER SCHOOL BUILDINGS TO EMPORIA, CITING ITS BELIEF
THAT EMPORIA'S PROPOSED ACTION WAS "NOT IN THE BEST INTEREST OF THE
CHILDREN IN GREENSVILLE COUNTY."  THE CITY COUNCIL AND THE CITY SCHOOL
BOARD NEVERTHELESS CONTINUED TO TAKE STEPS TOWARD IMPLEMENTING THE
SEPARATE SYSTEM THROUGHOUT THE MONTH OF JULY.  NOTICES WERE CIRCULATED
INVITING PARENTS TO REGISTER THEIR CHILDREN IN THE CITY SYSTEM, AND A
REQUEST WAS MADE TO THE STATE BOARD OF EDUCATION TO CERTIFY EMPORIA AS
A SEPARATE SCHOOL DIVISION.  THIS REQUEST WAS TABLED BY THE STATE BOARD
AT ITS AUGUST MEETING, "IN LIGHT OF MATTERS PENDING IN THE FEDERAL
COURT." 

ACCORDING TO FIGURES LATER SUPPLIED TO THE DISTRICT COURT, THERE
WERE 3,759 CHILDREN ENROLLED IN THE UNITARY SYSTEM CONTEMPLATED BY THE
DESEGREGATION DECREE, OF WHOM 66% WERE NEGRO AND 34% WERE WHITE.  HAD
EMPORIA ESTABLISHED A SEPARATE SCHOOL SYSTEM, 1,123 OF THESE STUDENTS
WOULD HAVE ATTENDED THE CITY SCHOOLS, OF WHOM 48% WERE WHITE.  IT IS
UNDISPUTED THAT THE CITY PROPOSED TO OPERATE ITS OWN SCHOOLS ON A
UNITARY BASIS, WITH ALL CHILDREN ENROLLED IN ANY PARTICULAR GRADE
ATTENDING THE SAME SCHOOL. 

ON AUGUST 1, 1969, THE PETITIONERS FILED A SUPPLEMENTAL COMPLAINT
NAMING THE MEMBERS OF THE EMPORIA CITY COUNCIL AND THE CITY SCHOOL
BOARD AS ADDITIONAL PARTIES DEFENDANT, /10/  AND SEEKING TO ENJOIN THEM
FROM WITHDRAWING EMPORIA CHILDREN FROM THE COUNTY SCHOOLS.  AT THE
CONCLUSION OF A HEARING ON AUGUST 8, THE DISTRICT COURT FOUND THAT THE
ESTABLISHMENT OF A SEPARATE SCHOOL SYSTEM BY THE CITY WOULD CONSTITUTE
"AN IMPERMISSIBLE INTERFERENCE WITH AND FRUSTRATION OF" ITS ORDER OF
JUNE 25, AND PRELIMINARILY ENJOINED THE RESPONDENTS FROM TAKING "ANY
ACTION WHICH WOULD INTERFERE IN ANY MANNER WHATSOEVER WITH THE
IMPLEMENTATION OF THE COURT'S ORDER HERETOFORE ENTERED.  . . . " 

THE SCHOOLS OPENED IN SEPTEMBER UNDER THE PAIRING ORDER, WHILE
EMPORIA CONTINUED TO WORK OUT DETAILED PLANS AND BUDGET ESTIMATES FOR A
SEPARATE SCHOOL SYSTEM IN THE HOPE THAT THE DISTRICT COURT WOULD ALLOW
ITS IMPLEMENTATION DURING THE FOLLOWING SCHOOL YEAR.  AT A FURTHER
HEARING IN DECEMBER, THE RESPONDENTS PRESENTED AN EXPERT WITNESS TO
TESTIFY AS TO THE EDUCATIONAL ADVANTAGES OF THE PROPOSED CITY SYSTEM,
AND ASKED THAT THE PRELIMINARY INJUNCTION BE DISSOLVED.  ON MARCH 2,
1970, THE DISTRICT COURT ENTERED A MEMORANDUM OPINION AND ORDER DENYING
THE RESPONDENTS' MOTION AND MAKING THE INJUNCTION PERMANENT.  309
F.SUPP.  671.  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT REVERSED,
442 F.2D 570, BUT STAYED ITS MANDATE PENDING ACTION BY THIS COURT ON A
PETITION FOR CERTIORARI, WHICH WE GRANTED.  404 U.S. 820. 

        II 

EMPORIA TAKES THE POSITION THAT SINCE IT IS A SEPARATE POLITICAL
JURISDICTION ENTITLED UNDER STATE LAW TO ESTABLISH A SCHOOL SYSTEM
INDEPENDENT OF THE COUNTY, ITS ACTION MAY BE ENJOINED ONLY UPON A
FINDING EITHER THAT THE STATE LAW UNDER WHICH IT ACTED IS INVALID, THAT
THE BOUNDARIES OF THE CITY ARE DRAWN SO AS TO EXCLUDE NEGROES, OR THAT
THE DISPARITY OF THE RACIAL BALANCE OF THE CITY AND COUNTY SCHOOLS OF
ITSELF VIOLATES THE CONSTITUTION.  AS WE READ ITS OPINION, THE DISTRICT
COURT MADE NO SUCH FINDINGS; NOR DO WE. 

THE CONSTITUTIONAL VIOLATION THAT FORMED THE PREDICATE FOR THE
DISTRICT COURT'S ACTION WAS THE ENFORCEMENT UNTIL 1969 OF RACIAL
SEGREGATION IN A PUBLIC SCHOOL SYSTEM OF WHICH EMPORIA HAD ALWAYS BEEN
A PART.  THAT FINDING HAS NOT BEEN CHALLENGED, NOR HAS EMPORIA
QUESTIONED THE PROPRIETY OF THE "PAIRING" ORDER OF JUNE 25, 1969, WHICH
WAS DESIGNED TO REMEDY THE CONDITION THAT OFFENDED THE CONSTITUTION. 
BOTH BEFORE AND AFTER IT BECAME A CITY, EMPORIA EDUCATED ITS CHILDREN
IN THE COUNTY SCHOOLS.  ONLY WHEN IT BECAME CLEAR-- 15 YEARS AFTER OUR
DECISION IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483-- THAT
SEGREGATION IN THE COUNTY SYSTEM WAS FINALLY TO BE ABOLISHED, DID
EMPORIA ATTEMPT TO TAKE ITS CHILDREN OUT OF THE COUNTY SYSTEM.  UNDER
THESE CIRCUMSTANCES, THE POWER OF THE DISTRICT COURT TO ENJOIN
EMPORIA'S WITHDRAWAL FROM THAT SYSTEM NEED NOT REST UPON AN INDEPENDENT
CONSTITUTIONAL VIOLATION.  THE COURT'S REMEDIAL POWER WAS INVOKED ON
THE BASIS OF A FINDING THAT THE DUAL SCHOOL SYSTEM VIOLATED THE
CONSTITUTION, AND SINCE THE CITY AND THE COUNTY CONSTITUTED BUT ONE
UNIT FOR THE PURPOSE OF STUDENT ASSIGNMENTS DURING THE ENTIRE TIME THAT
THE DUAL SYSTEM WAS MAINTAINED, THEY WERE PROPERLY TREATED AS A SINGLE
UNIT FOR THE PURPOSE OF DISMANTLING THAT SYSTEM. 

IN GREEN V. COUNTY SCHOOL BOARD, 391 U.S. 430, THE ISSUE WAS WHETHER
THE SCHOOL BOARD'S ADOPTION OF A "FREEDOM OF CHOICE" PLAN CONSTITUTED
ADEQUATE COMPLIANCE WITH THE MANDATE OF BROWN V. BOARD OF EDUCATION,
349 U.S. 294 (BROWN II).  WE DID NOT HOLD THAT A FREEDOM-OF-CHOICE PLAN
IS OF ITSELF UNCONSTITUTIONAL.  RATHER, WE DECIDED THAT ANY PLAN IS
"UNACCEPTABLE" WHERE IT "FAILS TO PROVIDE MEANINGFUL ASSURANCE OF
PROMPT AND EFFECTIVE DISESTABLISHMENT OF A DUAL SYSTEM.  . . . " 391
U.S.,AT 438.  IN MONROE V. BOARD OF COMMISSIONERS, 391 U.S. 450, WE
APPLIED THE SAME PRINCIPLE IN REJECTING A "FREE TRANSFER" PLAN ADOPTED
BY THE SCHOOL BOARD AS A METHOD OF DESEGREGATION: 

"WE DO NOT HOLD THAT 'FREE TRANSFER' CAN HAVE NO PLACE IN A
DESEGREGATION PLAN.  BUT LIKE 'FREEDOM OF CHOICE,' IF IT CANNOT BE
SHOWN THAT SUCH A PLAN WILL FURTHER RATHER THAN DELAY CONVERSION TO A
UNITARY, NONRACIAL, NONDISCRIMINATORY SCHOOL SYSTEM, IT MUST BE HELD
UNACCEPTABLE."  ID., AT 459.  THE EFFECT OF EMPORIA'S PROPOSAL WAS TO
ERECT NEW BOUNDARY LINES FOR THE PURPOSE OF SCHOOL ATTENDANCE IN A
DISTRICT WHERE NO SUCH LINES HAD PREVIOUSLY EXISTED, AND WHERE A DUAL
SCHOOL SYSTEM HAD LONG FLOURISHED.  UNDER THE PRINCIPLES OF GREEN AND
MONROE, SUCH A PROPOSAL MUST BE JUDGED ACCORDING TO WHETHER IT HINDERS
OR FURTHERS THE PROCESS OF SCHOOL DESEGREGATION.  IF THE PROPOSAL WOULD
IMPEDE THE DISMANTLING OF THE DUAL SYSTEM, THEN A DISTRICT COURT, IN
THE EXERCISE OF ITS REMEDIAL DISCRETION, MAY ENJOIN IT FROM BEING
CARRIED OUT. 

THE COURT OF APPEALS APPARENTLY DID NOT BELIEVE THIS CASE TO BE
GOVERNED BY THE PRINCIPLES OF GREEN AND MONROE.  /11/  IT HELD THAT THE
QUESTION WHETHER NEW SCHOOL DISTRICT BOUNDARIES SHOULD BE PERMITTED IN
AREAS WITH A HISTORY OF STATE-ENFORCED RACIAL SEGREGATION IS TO BE
RESOLVED IN TERMS OF THE "DOMINANT PURPOSE OF (THE) BOUNDARY
REALIGNMENT." 

"IF THE CREATION OF A NEW SCHOOL DISTRICT IS DESIGNED TO FURTHER THE
AIM OF PROVIDING QUALITY EDUCATION AND IS ATTENDED SECONDARILY BY A
MODIFICATION OF THE RACIAL BALANCE, SHORT OF RESEGREGATION, THE FEDERAL
COURTS SHOULD NOT INTERFERE.  IF, HOWEVER, THE PRIMARY PURPOSE FOR
CREATING A NEW SCHOOL DISTRICT IS TO RETAIN AS MUCH OF SEPARATION OF
THE RACES AS POSSIBLE, THE STATE HAS VIOLATED ITS AFFIRMATIVE
CONSTITUTIONAL DUTY TO END STATE SUPPORTED SCHOOL SEGREGATION."  442
F.2S,AT 572.  ALTHOUGH THE DISTRICT COURT HAD FOUND THAT "IN A SENSE,
RACE WAS A FACTOR IN THE CITY'S DECISION TO SECEDE," 309 F.SUPP.,AT
680, THE COURT OF APPEALS FOUND THAT THE PRIMARY PURPOSE OF EMPORIA'S
ACTION WAS "BENIGN," AND WAS NOT "MERELY A COVER-UP" FOR RACIAL
DISCRIMINATION.  442 F.2D,AT 574.     THIS "DOMINANT PURPOSE" TEST
FINDS NO PRECEDENT IN OUR DECISIONS.  IT IS TRUE THAT WHERE AN ACTION
BY SCHOOL AUTHORITIES IS MOTIVATED BY A DEMONSTRATED DISCRIMINATORY
PURPOSE, THE EXISTENCE OF THAT PURPOSE MAY ADD TO THE DISCRIMINATORY
EFFECT OF THE ACTION BY INTENSIFYING THE STIGMA OF IMPLIED RACIAL
INFERIORITY.  AND WHERE A SCHOOL BOARD OFFERS NONRACIAL JUSTIFICATIONS
FOR A PLAN THAT IS LESS EFFECTIVE THAN OTHER ALTERNATIVES FOR
DISMANTLING A DUAL SCHOOL SYSTEM, A DEMONSTRATED RACIAL PURPOSE MAY BE
TAKEN INTO CONSIDERATION IN DETERMINING THE WEIGHT TO BE GIVEN TO THE
PROFFERED JUSTIFICATION.  CF. GREEN, SUPRA, AT 439.  BUT AS WE SAID IN
PALMER V. THOMPSON, 402 U.S. 217, 225, IT "IS DIFFICULT OR IMPOSSIBLE
FOR ANY COURT TO DETERMINE THE 'SOLE' OR 'DOMINANT' MOTIVATION BEHIND
THE CHOICES OF A GROUP OF LEGISLATORS,"  AND THE SAME MAY BE SAID OF
THE CHOICES OF A SCHOOL BOARD.  IN ADDITION, AN INQUIRY INTO THE
"DOMINANT" MOTIVATION OF SCHOOL AUTHORITIES IS AS IRRELEVANT AS IT IS
FRUITLESS.  THE MANDATE OF BROWN II WAS TO DESEGREGATE SCHOOLS, AND WE
HAVE SAID THAT "(THE MEASURE OF ANY DESEGREGATION PLAN IS ITS
EFFECTIVENESS."  DAVIS V. SCHOOL COMMISSIONERS OF MOBILE COUNTY, 402
U.S. 33, 37.  THUS, WE HAVE FOCUSED UPON THE EFFECT-- NOT THE PURPOSE
OR MOTIVATION-- OF A SCHOOL BOARD'S ACTION IN DETERMINING WHETHER IT IS
A PERMISSIBLE METHOD OF DISMANTLING A DUAL SYSTEM.  THE EXISTENCE OF A
PERMISSIBLE PURPOSE CANNOT SUSTAIN AN ACTION THAT HAS AN IMPERMISSIBLE
EFFECT. 

THE REASONING OF THE COURT OF APPEALS IN THIS CASE IS AT ODDS WITH
THAT OF OTHER FEDERAL COURTS THAT HAVE HELD THAT SPLINTER SCHOOL
DISTRICTS MAY NOT BE CREATED "WHERE THE EFFECT-- TO SAY NOTHING OF THE
PURPOSE-- OF THE SECESSION HAS A SUBSTANTIAL ADVERSE EFFECT ON
DESEGREGATION OF THE COUNTY SCHOOL DISTRICT."  LEE V. MACON COUNTY
BOARD OF EDUCATION, 448 F.2D 746, 752.  SEE ALSO STOUT V. JEFFERSON
COUNTY BOARD OF EDUCATION, 448 F.2D 403, 404; HANEY V. COUNTY BOARD OF
EDUCATION, 410 F.2D 920, 924; BURLESON V. COUNTY BOARD OF ELECTION
COMMISSIONERS, 308 F.SUPP.  352, 356, AFF'D, 432 F.2D 1356; AYTCH V.
MITCHELL, 320 F.SUPP.  1372, 1377.  THOUGH THE PURPOSE OF THE NEW
SCHOOL DISTRICTS WAS FOUND TO BE DISCRIMINATORY IN MANY OF THESE CASES,
THE COURTS' HOLDINGS RESTED NOT ON MOTIVATION OR PURPOSE, BUT ON THE
EFFECT OF THE ACTION UPON THE DISMANTLING OF THE DUAL SCHOOL SYSTEMS
INVOLVED.  THAT WAS THE FOCUS OF THE DISTRICT COURT IN THIS CASE, AND
WE HOLD THAT ITS APPROACH WAS PROPER. 

        III 

THE BASIS FOR THE DISTRICT COURT'S RULING WAS ITS CONCLUSION THAT IF
EMPORIA WERE ALLOWED TO ESTABLISH AN INDEPENDENT SYSTEM, NEGROES
REMAINING IN THE COUNTY SCHOOLS WOULD BE DEPRIVED OF WHAT BROWN II
PROMISED THEM:  A SCHOOL SYSTEM IN WHICH ALL VESTIGES OF ENFORCED
RACIAL SEGREGATION HAVE BEEN ELIMINATED.  THE DISTRICT COURT NOTED THAT
THE EFFECT OF EMPORIA'S WITHDRAWAL WOULD BE A "SUBSTANTIAL INCREASE IN
THE PROPORTION OF WHITES IN THE SCHOOLS ATTENDED BY CITY RESIDENTS, AND
A CONCOMITANT DECREASE IN THE COUNTY SCHOOLS."  309 F.SUPP.,AT 680.  IN
ADDITION, THE COURT FOUND THAT THE DEPARTURE OF THE CITY'S STUDENTS,
ITS LEADERSHIP, AND ITS FINANCIAL SUPPORT, TOGETHER WITH THE POSSIBLE
LOSS OF TEACHERS TO THE NEW SYSTEM, WOULD DIMINISH THE CHANCES THAT
TRANSITION TO UNITARY SCHOOLS IN THE COUNTY WOULD PROVE "SUCCESSFUL." 

CERTAINLY, DESEGREGATION IS NOT ACHIEVED BY SPLITTING A SINGLE
SCHOOL SYSTEM OPERATING "WHITE SCHOOLS" AND "NEGRO SCHOOLS" INTO TWO
NEW SYSTEMS, EACH OPERATING UNITARY SCHOOLS WITHIN ITS BORDERS, WHERE
ONE OF THE TWO NEW SYSTEMS IS, IN FACT, "WHITE" AND THE OTHER IS, IN
FACT, "NEGRO."  NOR DOES A COURT SUPERVISING THE PROCESS OF
DESEGREGATION EXERCISE ITS REMEDIAL DISCRETION RESPONSIBLY WHERE IT
APPROVES A PLAN THAT, IN THE HOPE OF PROVIDING BETTER "QUALITY
EDUCATION" TO SOME CHILDREN, HAS A SUBSTANTIAL ADVERSE EFFECT UPON THE
QUALITY OF EDUCATION AVAILABLE TO OTHERS.  IN SOME CASES, IT MAY BE
READILY PERCEIVED THAT A PROPOSED SUBDIVISION OF A SCHOOL DISTRICT WILL
PRODUCE ONE OR BOTH OF THESE RESULTS.  IN OTHER CASES, THE LIKELIHOOD
OF SUCH RESULTS MAY BE LESS APPARENT.  THIS CASE IS OF THE LATTER KIND,
BUT AN EXAMINATION OF THE RECORD SHOWS THAT THE DISTRICT COURT,S
CONCLUSIONS WERE ADEQUATELY SUPPORTED BY THE EVIDENCE. 

DATA SUBMITTED TO THE DISTRICT COURT AT ITS DECEMBER HEARING ALLOWED
THAT THE SCHOOL SYSTEM IN OPERATION UNDER THE "PAIRING" PLAN, INCLUDING
BOTH EMPORIA AND THE COUNTY, HAD A RACIAL COMPOSITION OF 34% WHITE AND
66% NEGRO.  IF EMPORIA HAD ESTABLISHED ITS OWN SYSTEM, AND IF TOTAL
ENROLLMENT HAD REMAINED THE SAME, THE CITY'S SCHOOLS WOULD HAVE BEEN
48% WHITE AND 52% NEGRO, WHILE THE COUNTY'S SCHOOLS WOULD HAVE BEEN 28%
WHITE AND 72% NEGRO. 

WE NEED NOT AND DO NOT HOLD THAT THIS DISPARITY IN THE RACIAL
COMPOSITION OF THE TWO SYSTEMS WOULD BE A SUFFICIENT REASON, STANDING
ALONE, TO ENJOIN THE CREATION OF THE SEPARATE SCHOOL DISTRICT.  THE
FACT THAT A SCHOOL BOARD'S DESEGREGATION PLAN LEAVES SOME DISPARITY IN
RACIAL BALANCE AMONG VARIOUS SCHOOLS IN THE SYSTEM DOES NOT ALONE MAKE
THAT PLAN UNACCEPTABLE.  /12/  WE OBSERVED IN SWANN, SUPRA, THAT "(THE
CONSTITUTIONAL COMMAND TO DESEGREGATE SCHOOLS DOES NOT MEAN THAT EVERY
SCHOOL IN EVERY COMMUNITY MUST ALWAYS REFLECT THE RACIAL COMPOSITION OF
THE SCHOOL SYSTEM AS A WHOLE."  402 U.S.,AT 24. 

BUT THERE IS MORE TO THIS CASE THAN THE DISPARITY IN RACIAL
PERCENTAGES REFLECTED BY THE FIGURES SUPPLIED BY THE SCHOOL BOARD.  IN
THE FIRST PLACE, THE DISTRICT COURT FOUND THAT IF EMPORIA WERE ALLOWED
TO WITHDRAW FROM THE EXISTING SYSTEM, IT "MAY BE ANTICIPATED THAT THE
PROPORTION OF WHITES IN COUNTY SCHOOLS MAY DROP AS THOSE WHO CAN
REGISTER IN PRIVATE ACADEMIES," 309 F.SUPP.,AT 680, WHILE SOME WHITES
MIGHT RETURN TO THE CITY SCHOOLS FROM THE PRIVATE SCHOOLS IN WHICH THEY
HAD PREVIOUSLY ENROLLED.  THUS, IN THE JUDGMENT OF THE DISTRICT COURT,
THE STATISTICAL BREAKDOWN OF THE 1969-1970 ENROLLMENT FIGURES BETWEEN
CITY RESIDENTS AND COUNTY RESIDENTS DID NOT REFLECT WHAT THE SITUATION
WOULD HAVE BEEN HAD EMPORIA ESTABLISHED ITS OWN SCHOOL SYSTEM. 

SECOND, THE SIGNIFICANCE OF ANY RACIAL DISPARITY IN THIS CASE IS
ENHANCED BY THE FACT THAT THE TWO FORMERLY ALL-WHITE SCHOOLS ARE
LOCATED WITHIN EMPORIA, WHILE ALL THE SCHOOLS LOCATED IN THE
SURROUNDING COUNTY WERE FORMERLY ALL-NEGRO.  THE RECORD FURTHER
REFLECTS THAT THE SCHOOL BUILDINGS IN EMPORIA ARE BETTER EQUIPPED AND
ARE LOCATED ON BETTER SITES THAN ARE THOSE IN THE COUNTY.  WE NOTED IN
SWANN THAT FACTORS SUCH AS THESE MAY IN THEMSELVES INDICATE THAT
ENFORCED RACIAL SEGREGATION HAS BEEN PERPETUATED: 

"INDEPENDENT OF STUDENT ASSIGNMENT, WHERE IT IS POSSIBLE TO IDENTIFY A
'WHITE SCHOOL' OR A 'NEGRO SCHOOL' SIMPLY BY REFERENCE TO THE RACIAL
COMPOSITION OF TEACHERS AND STAFF, THE QUALITY OF SCHOOL BUILDINGS AND
EQUIPMENT, OR THE ORGANIZATION OF SPORTS ACTIVITIES, A PRIMA FACIE CASE
OF VIOLATION OF SUBSTANTIVE CONSTITUTIONAL RIGHTS UNDER THE EQUAL
PROTECTION CLAUSE IS SHOWN."  402 U.S.,AT 18.  JUST AS RACIAL BALANCE
IS NOT REQUIRED IN REMEDYING A DUAL SYSTEM, NEITHER ARE RACIAL RATIOS
THE SOLE CONSIDERATION TO BE TAKEN INTO ACCOUNT IN DEVISING A WORKABLE
REMEDY. 

THE TIMING OF EMPORIA'S ACTION IS A THIRD FACTOR THAT WAS PROPERLY
TAKEN INTO ACCOUNT BY THE DISTRICT COURT IN ASSESSING THE EFFECT OF THE
ACTION UPON CHILDREN REMAINING IN THE COUNTY SCHOOLS.  WHILE EMPORIA
HAD LONG HAD THE RIGHT UNDER STATE LAW TO ESTABLISH A SEPARATE SCHOOL
SYSTEM, ITS DECISION TO DO SO CAME ONLY UPON THE BASIS OF-- AND, AS THE
CITY OFFICIALS CONCEDED, IN REACTION TO-- A COURT ORDER THAT PREVENTED
THE COUNTY SYSTEM FROM MAINTAINING ANY LONGER THE SEGREGATED SYSTEM
THAT HAD LINGERED FOR 15 YEARS AFTER BROWN I. IN THE WORDS OF JUDGE
WINTER, DISSENTING IN THE COURT OF APPEALS, "(IF THE ESTABLISHMENT OF
AN EMPORIA SCHOOL DISTRICT IS NOT ENJOINED, THE BLACK STUDENTS IN THE
COUNTY WILL WATCH AS NEARLY ONE-HALF THE TOTAL NUMBER OF WHITE STUDENTS
IN THE COUNTY ABANDON THE COUNTY SCHOOLS FOR A SUBSTANTIALLY WHITER
SYSTEM."  442 F.2S,AT 590.  THE MESSAGE OF THIS ACTION, COMING WHEN IT
DID, CANNOT HAVE ESCAPED THE NEGRO CHILDREN IN THE COUNTY.  AS WE NOTED
IN BROWN I:  "TO SEPARATE (NEGRO SCHOOL CHILDREN) FROM OTHERS OF
SIMILAR AGE AND QUALIFICATIONS SOLELY BECAUSE OF THEIR RACE GENERATES A
FEELING OF INFERIORITY AS TO THEIR STATUS IN THE COMMUNITY THAT MAY
AFFECT THEIR HEARTS AND MINDS IN A WAY UNLIKELY EVER TO BE UNDONE." 
347 U.S.,AT 494.  WE THINK THAT, UNDER THE CIRCUMSTANCES, THE DISTRICT
COURT COULD RATIONALLY HAVE CONCLUDED THAT THE SAME ADVERSE
PSYCHOLOGICAL EFFECT WAS LIKELY TO RESULT FROM EMPORIA'S WITHDRAWAL OF
ITS CHILDREN FROM THE GREENSVILLE COUNTY SYSTEM. 

THE WEIGHING OF THESE FACTORS TO DETERMINE THEIR EFFECT UPON THE
PROCESS OF DESEGREGATION IS A DELICATE TASK THAT IS AIDED BY A
SENSITIVITY TO LOCAL CONDITIONS, AND THE JUDGMENT IS PRIMARILY THE
RESPONSIBILITY OF THE DISTRICT JUDGE.  SEE BROWN II, SUPRA, AT 299. 
/13/  GIVEN TO THE TOTALITY OF THE CIRCUMSTANCES, WE HOLD THAT THE
DISTRICT COURT WAS JUSTIFIED IN ITS CONCLUSION THAT EMPORIA'S
ESTABLISHMENT OF A SEPARATE SYSTEM WOULD ACTUALLY IMPEDE THE PROCESS OF
DISMANTLING THE EXISTING DUAL SYSTEM. 

        IV 

AGAINST THESE CONSIDERATIONS, EMPORIA ADVANCES ARGUMENTS THAT A
SEPARATE SYSTEM IS NECESSARY TO ACHIEVE "QUALITY EDUCATION" FOR CITY
RESIDENTS, AND THAT IT IS UNFAIR IN ANY EVENT TO FORCE THE CITY TO
CONTINUE TO SEND ITS CHILDREN TO SCHOOLS OVER WHICH THE CITY, BECAUSE
OF THE CHARACTER OF ITS ARRANGEMENT WITH THE COUNTY, HAS VERY LITTLE
CONTROL.  THESE ARGUMENTS ARE ENTITLED TO CONSIDERATIONBY A COURT
EXERCISING ITS EQUITABLE DISCRETION WHERE THEY ARE DIRECTED TO THE
FEASIBILITY OR PRACTICALITY OF THE PROPOSED REMEDY.  SEE SWANN V.
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, SUPRA, AT 31.  BUT, AS WE
SAID IN GREEN V. COUNTY SCHOOL BOARD, SUPRA, THE AVAILABILITY OF "MORE
PROMISING COURSES OF ACTION" TO DISMANTLE A DUAL SYSTEM "AT THE LEAST .
. . PLACES A HEAVY BURDEN UPON THE BOARD TO EXPLAIN ITS PREFERENCE FOR
AN APPARENTLY LESS EFFECTIVE METHOD."  391 U.S.,AT 439. 

IN EVALUATING EMPORIA'S CLAIMS, IT MUST BE REMEMBERED THAT THE CITY
REPRESENTS THE INTERESTS OF LESS THAN ONE-THIRD OF THE STUDENTS IN THE
SYSTEM BEING DESEGREGATED.  ONLY THE CITY OFFICIALS ARGUE THAT THEIR
PLAN IS PREFERABLE TO THE "PAIRING" PLAN ENCOMPASSING THE WHOLE OF THE
CITY-COUNTY SYSTEM.  ALTHOUGH THE COUNTY SCHOOL BOARD TOOK NO POSITION
IN THE DISTRICT COURT EITHER FOR OR AGAINST EMPORIA'S ACTION, IT HAD
PREVIOUSLY ADOPTED A RESOLUTION STATING ITS BELIEF THAT THE CITY'S
ACTION WAS NOT IN THE BEST INTERESTS OF THE COUNTY CHILDREN.  IN TERMS
OF GREEN, IT WAS ONLY THE RESPONDENTS-- NOT THE COUNTY SCHOOL BOARD--
WHO EXPRESSED A "PREFERENCE FOR AN APPARENTLY LESS EFFECTIVE METHOD" OF
DESEGREGATION. 

AT THE FINAL HEARING IN THE DISTRICT COURT, THE RESPONDENTS
PRESENTED DETAILED BUDGETARY PROPOSALS AND OTHER EVIDENCE DEMONSTRATING
THAT THEY CONTEMPLATED A MORE DIVERSE AND MORE EXPENSIVE EDUCATIONAL
PROGRAM THAN THAT TO WHICH THE CITY CHILDREN HAD BEEN ACCUSTOMED IN THE
GREENSVILLE COUNTY SCHOOLS.  THESE PLANS FOR THE CITY SYSTEM WERE
DEVELOPED AFTER THE PRELIMINARY INJUNCTION WAS ISSUED IN THIS CASE.  IN
AUGUST 1969, ONE MONTH BEFORE CLASSES WERE SCHEDULED TO OPEN, THE CITY
OFFICIALS WERE INTENT UPON OPERATING A SEPARATE SYSTEM DESPITE THE FACT
THAT THE CITY HAD NO BUILDINGS UNDER LEASE, NO TEACHERS UNDER CONTRACT,
AND NO SPECIFIC PLANS FOR THE OPERATION OF THE SCHOOLS.  THUS, THE
PERSUASIVENESS OF THE "QUALITY EDUCATION" RATIONALE WAS OPEN TO
QUESTION.  MORE IMPORTANT, HOWEVER, ANY INCREASED QUALITY OF EDUCATION
PROVIDED TO CITY STUDENTS WOULD, UNDER THE CIRCUMSTANCES FOUND BY THE
DISTRICT COURT, HAVE BEEN PURCHASED ONLY AT THE PRICE OF A SUBSTANTIAL
ADVERSE EFFECT UPON THE VIABILITY OF THE COUNTY SYSTEM.  THE DISTRICT
COURT, WITH ITS RESPONSIBILITY TO PROVIDE AN EFFECTIVE REMEDY FOR
SEGREGATION IN THE ENTIRE CITY-COUNTY SYSTEM, COULD NOT PROPERLY ALLOW
THE CITY TO MAKE ITS PART OF THAT SYSTEM MORE ATTRACTIVE WHERE SUCH A
RESULT WOULD BE ACCOMPLISHED AT THE EXPENSE OF THE CHILDREN REMAINING
IN THE COUNTY. 

A MORE WEIGHTY CONSIDERATION PUT FORTH BY EMPORIA IS ITS LACK OF
FORMAL CONTROL OVER THE SCHOOL SYSTEM UNDER THE TERMS OF ITS CONTRACT
WITH THE COUNTY.  THIS ARGUMENT IS PROPERLY ADDRESSED TO THE
PRACTICALITY OF THE DISTRICT COURT'S ACTION.  AS WE SAID IN DAVIS V.
SCHOOL COMMISSIONERS OF MOBILE COUNTY, 402 U.S.,AT 37: 

"HAVING ONCE FOUND A VIOLATION, THE DISTRICT JUDGE OR SCHOOL
AUTHORITIES SHOULD MAKE EVERY EFFORT TO ACHIEVE THE GREATEST POSSIBLE
DEGREE OF ACTUAL DESEGREGATION, TAKING INTO ACCOUNT THE PRACTICALITIES
OF THE SITUATION."  AND IN SWANN, SUPRA, WE NOTED THAT A DESEGREGATION
PLAN CANNOT BE REGARDED AS A PROPER EXERCISE OF A DISTRICT COURT'S
DISCRETION WHERE IT IS NOT "REASONABLE, FEASIBLE AND WORKABLE."  402
U.S.,AT 31. 

WE DO NOT UNDERESTIMATE THE DEFICIENCIES, FROM EMPORIA'S STANDPOINT,
IN THE ARRANGEMENT BY WHICH IT UNDERTOOK IN 1968 TO PROVIDE FOR THE
EDUCATION OF ITS CHILDREN.  DIRECT CONTROL OVER DECISIONS VITALLY
AFFECTING THE EDUCATION OF ONE'S CHILDREN IS A NEED THAT IS STRONGLY
FELT IN OUR SOCIETY, AND SINCE 1967 THE CITIZENS OF EMPORIA HAVE HAD
LITTLE OF THAT CONTROL.  BUT EMPORIA DID FIND ITS ARRANGEMENT WITH THE
COUNTY BOTH FEASIBLE AND PRACTICAL UP UNTIL THE TIME OF THE
DESEGREGATION DECREE ISSUED IN THE SUMMER OF 1969.  WHILE CITY
OFFICIALS TESTIFIED THAT THEY WERE DISSATISFIED WITH THE TERMS OF THE
CONTRACT PRIOR TO THAT TIME, THEY DID NOT ATTEMPT TO CHANGE IT.  THEY
ARGUED THAT THE ARRANGEMENT BECAME INTOLERABLE WHEN THE "PAIRING"
DECREE WAS ENTERED, BECAUSE THE COUNTY OFFICIALS WHO WOULD CONTROL THE
BUDGET OF THE UNITARY SYSTEM LACKED THE DESIRE TO MAKE THE UNITARY
SYSTEM WORK.  THE DISTRICT COURT DID NOT ACCEPT THE CONTENTION THAT A
LACK OF ENTHUSIASM ON THE PART OF COUNTY LEADERS WOULD, IF EMPORIA
CHILDREN REMAINED IN THE SYSTEM, BLOCK A SUCCESSFUL TRANSITION TO
UNITARY SCHOOLS.  THE COURT FELT THAT THE "DESIRE OF THE CITY LEADERS,
COUPLED WITH THEIR OBVIOUS LEADERSHIP ABILITY," WOULD MAKE ITSELF FELT
DESPITE THE ABSENCE OF ANY FORMAL CONTROL BY THE CITY OVER THE SYSTEM'S
BUDGET AND OPERATION, AND THAT THE CITY'S LEADERSHIP WOULD BE "AN
IMPORTANT FACET IN THE SUCCESSFUL OPERATION OF ANY COURT-ORDERED
PLAN."  309 F.SUPP.,AT 679.  UNDER THESE CIRCUMSTANCES, WE CANNOT SAY
THAT THE ENFORCED CONTINUATION OF THE SINGLE CITY-COUNTY SYSTEM WAS NOT
"REASONABLE, FEASIBLE AND WORKABLE."  /14/ 

THE DISTRICT COURT EXPLICITLY NOTED IN ITS OPINION THAT ITS
INJUNCTION DOES NOT HAVE THE EFFECT OF LOCKING EMPORIA INTO ITS PRESENT
CIRCUMSTANCES FOR ALL TIME.  AS ALREADY NOTED, OUR HOLDING TODAY DOES
NOT REST UPON A CONCLUSION THAT THE DISPARITY IN RACIAL BALANCE BETWEEN
THE CITY AND COUNTY SCHOOLS RESULTING FROM SEPARATE SYSTEMS WOULD,
ABSENT ANY OTHER CONSIDERATIONS, BE UNACCEPTABLE.  THE CITY'S CREATION
OF A SEPARATE SCHOOL SYSTEM WAS ENJOINED BECAUSE OF THE EFFECT IT WOULD
HAVE HAD AT THE TIME UPON THE EFFECTIVENESS OF THE REMEDY ORDERED TO
DISMANTLE THE DUAL SYSTEM THAT HAD LONG EXISTED IN THE AREA.  ONCE THE
UNITARY SYSTEM HAS BEEN ESTABLISHED AND ACCEPTED, IT MAY BE THAT
EMPORIA, IF IT STILL DESIRES TO DO SO, MAY ESTABLISH AN INDEPENDENT
SYSTEM WITHOUT SUCH AN ADVERSE EFFECT UPON THE STUDENTS REMAINING IN
THE COUNTY, OR IT MAY BE ABLE TO WORK OUT A MORE SATISFACTORY
ARRANGEMENT WITH THE COUNTY FOR JOINT OPERATION OF THE EXISTING
SYSTEM.  WE HOLD ONLY THAT A NEW SCHOOL DISTRICT MAY NOT BE CREATED
WHERE ITS EFFECT WOULD BE TO IMPEDE THE PROCESS OF DISMANTLING A DUAL
SYSTEM.  AND IN MAKING THAT ESSENTIALLY FACTUAL DETERMINATION IN ANY
PARTICULAR CASE, "WE MUST OF NECESSITY RELY TO A LARGE EXTENT, AS THIS
COURT HAS FOR MORE THAN 16 YEARS, ON THE INFORMED JUDGMENT OF THE
DISTRICT COURTS IN THE FIRST INSTANCE AND ON COURTS OF APPEALS." 
SWANN, SUPRA, AT 28.  IN THIS CASE, WE BELIEVE THAT THE DISTRICT COURT
DID NOT ABUSE ITS DISCRETION.  FOR THESE REASONS, THE JUDGMENT OF THE
COURT OF APPEALS IS

              REVERSED. 

/1/  TOGETHER WITH NO. 70-187, COTTON V. SCOTLAND NECK CITY BOARD OF
EDUCATION. 

/2/  THE COMPANION CASES WERE DAVIS V. BOARD OF SCHOOL
COMMISSIONERS, 402 U.S. 33; MCDANIEL V. BARRESI, 402 U.S. 39; BOARD OF
EDUCATION V. SWANN, 402 U.S. 43; AND MOORE V. BOARD OF EDUCATION, 402
U.S. 47. 

/3/  ON THE SAME DAY THAT IT REVERSED THE DISTRICT COURT ORDERS IN
THIS CASE AND IN THE SCOTLAND NECK CASES, THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT AFFIRMED AN ORDER ENJOINING THE CREATION OF A NEW SCHOOL
DISTRICT IN ANOTHER COUNTY OF NORTH CAROLINA.  TURNER V. LITTLETON-LAKE
GASTON SCHOOL DISTRICT, 442 F.2D 584.  OTHER CASES DEALING WITH
ATTEMPTS TO SPLIT SCHOOL DISTRICTS IN THE PROCESS OF DESEGREGATION ARE
LEE V. MACON COUNTY BOARD OF EDUCATION, 448 F.2D 746; STOUT V.
JEFFERSON COUNTY BOARD OF EDUCATION, 448 F.2D 403; HANEY V. COUNTY
BOARD OF EDUCATION, 410 F.2D 920; UNITED STATES V. TEXAS, 321 F.SUPP. 
1043, 1052, AFF'D, WITH MODIFICATIONS, 447 F.2D 441; BURLESON V. COUNTY
BOARD OF ELECTION COMMISSIONERS, 308 F.SUPP.  352, AFF'D, 432 F.2D
1356; AYTCH V. MITCHELL, 320 F.SUPP.  1372. 

/4/  VA. CODE ANN. SEC. 15.1-982. 

/5/  SEE VA. CODE ANN. SEC. 22-93; COLONIAL HEIGHTS V. COUNTY OF
CHESTERFIELD, 196 VA. 155, 82 S.E.2D 566 (1954). 

/6/  EMPORIA WAS ENTITLED UNDER STATE LAW TO ESTABLISH AN
INDEPENDENT SCHOOL SYSTEM WHEN IT BECAME A CITY IN 1967, BUT IT CHOSE
NOT TO DO SO BECAUSE, ACCORDING TO THE TESTIMONY OF THE CHAIRMAN OF THE
CITY SCHOOL BOARD, A SEPARATE SYSTEM DID NOT SEEM PRACTICAL AT THE
TIME.  IN A LETTER TO THE COUNTY BOARD OF SUPERVISORS IN JULY 1969, THE
EMPORIA CITY COUNCIL STATED THAT IT HAD AUTHORIZED A COMBINED SYSTEM IN
1968 BECAUSE IT BELIEVED THAT "THE EDUCATIONAL INTEREST OF EMPORIA
CITIZENS, THEIR CHILDREN AND THOSE OF THE CITIZENS AND CHILDREN OF
GREENSVILLE COUNTY, COULD BEST BE SERVED BY CONTINUING A COMBINED CITY
COUNTY SCHOOL DIVISION, THUS GIVING STUDENTS FROM BOTH POLITICAL
SUBDIVISIONS FULL BENEFITS OF A LARGER SCHOOL SYSTEM." 

/7/  UNDER VIRGINIA LAW AS IT STOOD IN 1969, THE SCHOOL "DIVISION"
WAS THE BASIC UNIT FOR THE PURPOSE OF SCHOOL ADMINISTRATION.  SEE VA.
CODE ANN. SECS. 22-30, 22-34, 22-100.1. 

/8/  THE PLAN WAS LATER MODIFIED IN CERTAIN RESPECTS AT THE REQUEST
OF THE COUNTY SCHOOL BOARD, AND AS MODIFIED IT HAS BEEN IN OPERATION
SINCE SEPTEMBER 1969.  BEACUSE THE FOUR SCHOOLS LOCATED OUTSIDE
EMPORIA'S CITY LIMITS ARE ALL IN CLOSE PROXIMITY TO THE CITY, THE
"PAIRING" PLAN APPARENTLY INVOLVED LITTLE ADDITIONAL TRANSPORTATION OF
STUDENTS. 

/9/  THE DISTRICT COURT TOOK SPECIAL NOTE OF THIS TRANSFER
ARRANGEMENT IN ITS MEMORANDUM ACCOMPANYING THE PRELIMINARY INJUNCTION
ISSUED IN AUGUST 1969.  AT THE TIME OF THE FINAL HEARING, HOWEVER, THE
RESPONDENTS ASSURED THE COURT THAT IF ALLOWED TO OPERATE A SEPARATE
SYSTEM, THEY WOULD NOT PERMIT TRANSFERS FROM THE COUNTY WITHOUT PRIOR
PERMISSION OF THE COURT. 

/10/  BECAUSE THE COUNTY SCHOOL BOARD HAD ULTIMATE RESPONSIBILITY
FOR THE ADMINISTRATION OF THE SCHOOLS UNDER THE COMBINED SYSTEM, THE
MEMBERS OF THE EMPORIA SCHOOL BOARD WERE NOT ORIGINALLY PARTIES TO THE
LAWSUIT.  BUT THE DISTRICT COURT'S DESEGREGATION DECREE BOUND BOTH
COUNTY OFFICIALS "AND THEIR SUCCESSORS," AND THE DISTRICT COURT TREATED
THE EMPORIA SCHOOL BOARD MEMBERS, INSOFAR AS THEY INTENDED TO REPLACE
THE COUNTY BOARD AS ADMINISTRATORS OF PART OF THE SYSTEM UNDER COURT
ORDER, AS "SUCCESSORS" TO THE MEMBERS OF THE COUNTY BOARD. 

/11/  THE DECISION OF THE COURT OF APPEALS WAS RENDERED LESS THAN A
MONTH PRIOR TO OUR DECISION IN SWANN V. CHARLOTTE-MECKLENBURG BOARD OF
EDUCATION, 402 U.S. 1. 

/12/  THE COURT ORDER THAT WE APPROVED IN SWANN, SUPRA, ITSELF
PROVIDED FOR STUDENT BODIES RANGING FROM 9% NEGRO TO 38% NEGRO. 

/13/  "FULL IMPLEMENTATION OF THESE CONSTITUTIONAL PRINCIPLES MAY
REQUIRE SOLUTION OF VARIED LOCAL SCHOOL PROBLEMS.  SCHOOL AUTHORITIES
HAVE THE PRIMARY RESPONSIBILITY FOR ELUCIDATING, ASSESSING, AND SOLVING
THESE PROBLEMS; COURTS WILL HAVE TO CONSIDER WHETHER THE ACTION OF
SCHOOL AUTHORITIES CONSTITUTES GOOD FAITH IMPLEMENTATION OF THE
GOVERNING CONSTITUTIONAL PRINCIPLES.  BECAUSE OF THEIR PROXIMITY TO
LOCAL CONDITIONS AND THE POSSIBLE NEED FOR FURTHER HEARINGS, THE COURTS
WHICH ORIGINALLY HEARD THESE CASES CAN BEST PERFORM THIS JUDICIAL
APPRAISAL."  349 U.S.,AT 299. 

/14/  CITY OFFICIALS TESTIFIED THAT ONE OF THE PRIMARY OBJECTIONS TO
THE COURT'S "PAIRING" DECREE WAS THAT IT REQUIRED A STUDENT TO ATTEND
SIX SCHOOLS IN THE SPACE OF 12 YEARS.  DR. TRACEY, THE EXPERT WITNESS
FOR THE RESPONDENTS, EXPRESSED THE VIEW THAT THIS ASPECT OF THE DECREE
HAD UNDESIRABLE EFFECTS FROM AN EDUCATOR'S POINT OF VIEW.  THIS
ARGUMENT, HOWEVER, WAS NEVER MADE TO THE DISTRICT COURT EITHER BEFORE
OR AT THE TIME IT ADOPTED THE "PAIRING" PLAN.  INDEED, THE CITY
OFFICIALS NEVER EVEN MET WITH THE COUNTY SCHOOL BOARD OR PARTICIPATED
IN THE HEARINGS THAT PRECEDED THE DECREE.  AFTER THE JUNE 25 ORDER WAS
ENTERED, THE DISTRICT COURT MODIFIED IT AT THE REQUEST OF THE COUNTY
BOARD, AND AT THE HEARING ON A PRELIMINARY INJUNCTION AGAINST EMPORIA'S
WITHDRAWAL FROM THE SYSTEM, THE COURT NOTED THAT IT WOULD BE "DELIGHTED
TO ENTERTAIN MOTIONS FOR AMENDMENT OF THE (PAIRING) PLAN AT ANY TIME." 
APP. 185A. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN, MR.
JUSTICE POWELL, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

IF IT APPEARED THAT THE CITY OF EMPORIA'S OPERATION OF A SEPARATE
SCHOOL SYSTEM WOULD EITHER PERPETUATE RACIAL SEGREGATION IN THE SCHOOLS
OF THE GREENSVILLE COUNTY AREA OR OTHERWISE FRUSTRATE THE DISMANTLING
OF THE DUAL SYSTEM IN THAT AREA, I WOULD UNHESITATINGLY JOIN IN
REVERSING THE JUDGMENT OF THE COURT OF APPEALS AND REINSTATING THE
JUDGMENT OF THE DISTRICT COURT.  HOWEVER, I DO NOT BELIEVE THE RECORD
SUPPORTS SUCH FINDINGS AND CAN ONLY CONCLUDE THAT THE DISTRICT COURT
ABUSED ITS DISCRETION IN PREVENTING EMPORIA FROM EXERCISING ITS LAWFUL
RIGHT TO PROVIDE FOR THE EDUCATION OF ITS OWN CHILDREN. 

BY ACCEPTING THE DISTRICT COURT'S CONCLUSION THAT EMPORIA'S
OPERATION OF ITS OWN SCHOOLS WOULD "IMPEDE THE DISMANTLING OF THE DUAL
SYSTEM," THE COURT NECESSARILY IMPLIES THAT THE RESULT OF THE SEVERANCE
WOULD BE SOMETHING LESS THAN UNITARY SCHOOLS, AND THAT SEGREGATED
EDUCATION WOULD PERSIST IN SOME MEASURE IN THE CLASSROOMS OF THE
GREENSVILLE COUNTY AREA.  THE COURT DOES NOT ARTICULATE THE STANDARD BY
WHICH IT REACHES THIS CONCLUSION, AND ITS RESULT FAR EXCEEDS THE
CONTEMPLATION OF BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954), AND
ALL SUCCEEDING CASES, INCLUDING SWANN V. CHARLOTTE-MECKLENBURG BOARD OF
EDUCATION, 402 U.S. 1 (1971). 

IF THE SEVERANCE OF THE TWO SYSTEMS WERE PERMITTED TO PROCEED, THE
ASSIGNMENT OF CHILDREN TO SCHOOLS WOULD DEPEND SOLELY ON THEIR
RESIDENCE.  COUNTY RESIDENTS WOULD ATTEND COUNTY SCHOOLS, AND CITY
RESIDENTS WOULD ATTEND CITY SCHOOLS.  ASSIGNMENT TO SCHOOLS WOULD IN NO
SENSE DEPEND ON RACE.  SUCH A GEORGRAPHIC ASSIGNMENT PATTERN IS PRIMA
FACIE CONSISTENT WITH THE EQUAL PROTECTION CLAUSE.  SEE SPENCER V.
KUGLER, 326 F.SUPP.  1235 (N.J. 1971), AFF'D, 404 U.S. 1027 (1972). 

HOWEVER, WHERE A SCHOOL SYSTEM HAS BEEN OPERATED ON A SEGREGATED
BASIS IN THE PAST, AND WHERE OSTENSIBLY NEUTRAL ATTENDANCE ZONES OR
DISTRICT LINES ARE DRAWN WHERE NONE HAVE EXISTED BEFORE, WE DO NOT
CLOSE OUR EYES TO THE FACTS IN FAVOR OF THEORY.  IN GREEN V. COUNTY
SCHOOL BOARD, 391 U.S. 430 (1968), THE COURT RULED THAT DUAL SCHOOL
SYSTEMS MUST CEASE TO EXIST IN AN OBJECTIVE SENSE AS WELL AS UNDER THE
LAW.  IT WAS APPARENT THAT UNDER THE FREEDOM-OF-CHOICE PLAN BEFORE THE
COURT IN GREEN, THE MERE ELIMINATION OF MANDATORY SEGREGATION HAD
PROVIDED NO MEANINGFUL REMEDY.  GREEN IMPOSED ON SCHOOL BOARDS THE
RESPONSIBILITY TO "FASHION STEPS WHICH PROMISE REALISTICALLY TO CONVERT
PROMPTLY TO A SYSTEM WITHOUT A 'WHITE' SCHOOL AND A 'NEGRO' SCHOOL, BUT
JUST SCHOOLS."  391 U.S.,AT 442.  THAT, I BELIEVE, IS PRECISELY WHAT
WOULD RESULT IF EMPORIA WERE PERMITTED TO OPERATE ITS OWN SCHOOL SYSTEM
- SCHOOLS NEITHER NEGRO NOR WHITE, "BUT JUST SCHOOLS."  AS SEPARATE
SYSTEMS, BOTH EMPORIA AND GREENSVILLE COUNTY WOULD HAVE A MAJORITY OF
NEGRO STUDENTS, THE FORMER SLIGHTLY MORE THAN HALF, THE LATTER SLIGHTLY
MORE THAN TWO-THIRDS.  IN THE WORDS OF THE COURT OF APPEALS, "(THE
EMPORIA CITY UNIT WOULD NOT BE A WHITE ISLAND IN AN OTHERWISE BLACK
COUNTY."  442 F.2D,AT 573.  MOREOVER, THE NEGRO MAJORITY IN THE
REMAINING COUNTY SYSTEM WOULD ONLY SLIGHTLY EXCEED THAT OF THE ENTIRE
COUNTY AREA INCLUDING EMPORIA.  IT IS UNDISPUTED THAT EDUCATION WOULD
BE CONDUCTED ON A COMPLETELY DESEGREGATED BASIS WITHIN THE SEPARATE
SYSTEMS.  THUS, THE SITUATION WOULD IN NO SENSE BE COMPARABLE TO THAT
WHERE THE CREATION OF ATTENDANCE ZONES WITHIN A SINGLE FORMERLY
SEGREGATED SCHOOL SYSTEM LEAVES AN INORDINATE NUMBER OF ONE-RACE
SCHOOLS, SUCH AS WERE FOUND IN DAVIS V. BOARD OF SCHOOL COMM'RS, 402
U.S. 33 (1971).  RATHER THAN PERPETUATING A DUAL SYSTEM, I BELIEVE THE
PROPOSED ARRANGEMENT WOULD COMPLETELY ELIMINATE ALL TRACES OF STATE
IMPOSED SEGREGATION. 

IT IS QUITE TRUE THAT THE RACIAL RATIOS OF THE TWO SCHOOL SYSTEMS
WOULD DIFFER, BUT THE ELIMINATION OF SUCH DISPARITIES IS NOT THE
MISSION OF DESEGREGATION.  WE STATED IN SWANN V. CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION, 402 U.S.,AT 24: 

"IF WE WERE TO READ THE HOLDING OF THE DISTRICT COURT TO REQUIRE, AS
A MATTER OF SUBSTANTIVE CONSTITUTIONAL RIGHT, ANY PARTICULAR DEGREE OF
RACIAL BALANCE OR MIXING, THAT APPROACH WOULD BE DISAPPROVED AND WE
WOULD BE OBLIGED TO REVERSE.  THE CONSTITUTIONAL COMMAND TO DESEGREGATE
SCHOOLS DOES NOT MEAN THAT EVERY SCHOOL IN EVERY COMMUNITY MUST ALWAYS
REFLECT THE RACIAL COMPOSITION OF THE SCHOOL SYSTEM AS A WHOLE."  IT
CAN NO MORE BE SAID THAT RACIAL BALANCE IS THE NORM TO BE SOUGHT, THAN
IT CAN BE SAID THAT MERE RACIAL IMBALANCE WAS THE CONDITION REQUIRING A
JUDICIAL REMEDY.  THE POINTLESSNESS OF SUCH A "RACIAL BALANCING"
APPROACH IS WELL ILLUSTRATED BY THE FACTS OF THIS CASE.  THE DISTRICT
COURT AND THE PETITIONERS HAVE PLACED GREAT EMPHASIS ON THE ESTIMATED
SIX-PERCENT INCREASE IN THE PROPORTION OF NEGRO STUDENTS IN THE COUNTY
SCHOOLS THAT WOULD RESULT FROM EMPORIA'S WITHDRAWAL.  I DO NOT SEE HOW
A DIFFERENCE OF ONE OR TWO CHILDREN PER CLASS /1/  WOULD EVEN BE
NOTICED, LET ALONE HOW IT WOULD RENDER A SCHOOL PART OF A DUAL SYSTEM. 
WE HAVE SEEN THAT THE NORMAL MOVEMENT OF POPULATIONS COULD BRING ABOUT
SUCH SHIFTS IN A RELATIVELY SHORT PERIOD OF TIME.  OBSESSION WITH SUCH
MINOR STATISTICAL DIFFERENCES REFLECTS THE GRAVELY MISTAKEN VIEW THAT A
PLAN PROVIDING MORE CONSISTENT RACIAL RATIOS IS SOMEHOW MORE UNITARY
THAN ONE WHICH TOLERATES A LACK OF RACIAL BALANCE.  SINCE THE GOAL IS
TO DISMANTLE DUAL SCHOOL SYSTEMS RATHER THAN TO REPRODUCE IN EACH
CLASSROOM A MICROCOSMIC REFLECTION OF THE RACIAL PROPORTIONS OF A GIVEN
GEOGRAPHICAL AREA, THERE IS NO BASIS FOR SAYING THAT A PLAN PROVIDING A
UNIFORM RACIAL BALANCE IS MORE EFFECTIVE OR CONSTITUTIONALLY
PREFERRED.  SCHOOL AUTHORITIES MAY WISH TO PURSUE THAT GOAL AS A MATTER
OF POLICY, BUT WE HAVE MADE IT PLAIN THAT IT IS NOT CONSTITUTIONALLY
MANDATED.  SEE SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402
U.S.,AT 16. 

THE COURT DISAVOWS A "RACIAL BALANCING" APPROACH, AND SEEKS TO
JUSTIFY THE DISTRICT COURT'S RULING BY RELYING ON SEVERAL ADDITIONAL
FACTORS THOUGHT TO AGGRAVATE THE EFFECT OF THE RACIAL DISPARITY.  THE
REAL SIGNIFICANCE OF THESE ADDITIONAL FACTORS IS SO NEGLIGIBLE AS TO
SUGGEST THAT THE RACIAL IMBALANCE ITSELF MAY BE WHAT THE COURT FINDS
MOST UNACCEPTABLE.     FIRST, THE COURT RAISES THE SPECTER OF
RESEGREGATION RESULTING FROM THE OPERATION OF SEPARATE SCHOOL SYSTEMS
IN THE COUNTY AREA, BUT ON THE RECORD IN THIS CASE THIS IS, AT BEST,
HIGHLY SPECULATIVE.  THE COURT SUGGESTS TWO REASONS WHY SUCH AN
ADDITIONAL RACIAL SHIFT COULD BE ANTICIPATED WITH THE EXISTENCE OF A
SEPARATE SCHOOL SYSTEM FOR EMPORIA:  WHITE STUDENTS RESIDING IN THE
COUNTY MIGHT ABANDON THE PUBLIC SCHOOLS IN FAVOR OF PRIVATE ACADEMIES,
AND WHITE STUDENTS RESIDING IN THE CITY MIGHT LEAVE PRIVATE SCHOOLS AND
ENROLL IN THE CITY SCHOOL.     IN ASSESSING THESE PROJECTIONS IT IS
NECESSARY TO COMPARE THE NATURE OF THE PROPOSED SEPARATE SYSTEMS WITH
THAT OF THE COURT-ORDERED "PAIRING" SYSTEM.  THUS THE FIRST
POSSIBILITY, THAT WHITE STUDENTS FROM THE COUNTY MIGHT ENTER PRIVATE
SCHOOLS, ASSUMES THAT WHITE FAMILIES WOULD BE MORE LIKELY TO WITHDRAW
THEIR CHILDREN FROM PUBLIC SCHOOLS THAT ARE 72% NEGRO THAN FROM THOSE
THAT ARE 66% NEGRO.  AT MOST, ANY SUCH DIFFERENCE WOULD BE MARGINAL,
AND IN FACT IT SEEMS HIGHLY IMPROBABLE THAT THERE WOULD BE ANY
DIFFERENCE AT ALL.  THE SECOND POSSIBILITY POSTULATED BY THE COURT
SEEMS EQUALLY UNLIKELY; IT ASSUMES THAT FAMILIES FROM THE CITY WHO HAD
PREVIOUSLY WITHDRAWN THEIR CHILDREN FROM THE PUBLIC SCHOOLS DUE TO
IMPENDING DESEGREGATION, WOULD RETURN THEIR CHILDREN TO PUBLIC SCHOOLS
HAVING MORE NEGRO THAN WHITE PUPILS. 

THE COURT DOES NOT MENTION THE POSSIBILITY OF SOME FORM OF MASS
MIGRATION OF WHITE FAMILIES INTO THE CITY FROM THE OUTLYING COUNTY.  OF
COURSE, WHEN THERE ARE ADJOINING SCHOOL DISTRICTS DIFFERING IN THEIR
RACIAL COMPOSITIONS, IT IS ALWAYS CONCEIVABLE THAT THE DIFFERENCES WILL
BE ACCENTUATED BY THE SO-CALLED "WHITE FLIGHT" PHENOMENON.  BUT THAT
DANGER SEEMS REMOTE IN A SITUATION SUCH AS THIS WHERE THERE IS A
PREDOMINANTLY NEGRO POPULATION THROUGHOUT THE ENTIRE AREA OF CONCERN. 

SECOND, THE COURT ATTACHES SIGNIFICANCE TO THE FACT THAT THE SCHOOL
BUILDINGS LOCATED IN THE COUNTY WERE FORMERLY USED AS ALL-NEGRO SCHOOLS
AND INTIMATES THAT THESE FACILITIES ARE OF GENERALLY POORER QUALITY
THAN THOSE IN THE CITY.  BUT THE DISTRICT COURT MADE NO SUCH FINDING OF
FACT, AND THE RECORD DOES NOT SUPPORT THE COURT'S SUGGESTION ON THIS
POINT.  ADMITTEDLY, SOME DISSATISFACTION WAS EXPRESSED WITH THE SITES
OF THE ELEMENTARY SCHOOLS IN THE COUNTY, AND ONLY THE CITY ELEMENTARY
SCHOOL HAS AN AUDITORIUM.  HOWEVER, ALL THREE ELEMENTARY SCHOOLS
LOCATED IN THE COUNTY ARE MORE MODERN THAN ANY SCHOOL BUILDING LOCATED
IN THE CITY, AND THE COUNTY AND CITY HIGH SCHOOL BUILDINGS ARE
IDENTICAL IN EVERY RESPECT.  ON A FAIR READING OF THE ENTIRE RECORD, IT
CAN ONLY BE SAID THAT ANY DIFFERENCES BETWEEN THE EDUCATIONAL
FACILITIES LOCATED IN THE CITY AND THOSE IN THE COUNTY ARE DE MINIMIS. 

FINALLY, THE COURT STATES THAT THE PROCESS OF DESEGREGATION WOULD BE
IMPEDED BY THE "ADVERSE PSYCHOLOGICAL EFFECT" THAT A SEPARATE CITY
SYSTEM WOULD HAVE ON NEGRO STUDENTS IN THE COUNTY.  HERE, AGAIN, THE
COURT SEEKS TO JUSTIFY THE DISTRICT COURT'S DISCRETIONARY ACTION BY
RELIANCE ON A FACTOR NEVER CONSIDERED BY THAT COURT.  MORE IMPORTANT,
IT SURPASSES THE BOUNDS OF REASON TO EQUATE THE PSYCHOLOGICAL IMPACT OF
CREATING ADJOINING UNITARY SCHOOL SYSTEMS, BOTH HAVING NEGRO
MAJORITIES, WITH THE FEELINGS OF INFERIORITY REFERRED TO IN BROWN I AS
ENGENDERED BY A SEGREGATED SCHOOL SYSTEM.  IN BROWN I THE COURT
EMPHASIZED THAT THE LEGAL POLICY OF SEPARATING CHILDREN IN SCHOOLS
SOLELY ACCORDING TO THEIR RACE INEVITABLY GENERATES A SENSE OF
INFERIORITY.  THESE OBSERVATIONS WERE SUPPORTED BY COMMON HUMAN
EXPERIENCE AND REINFORCED BY PSYCHOLOGICAL AUTHORITY.  HERE THE COURT
SEEKS TO MAKE A SIMILAR JUDGMENT IN A SETTING WHERE NO CHILD IS
ACCORDED DIFFERING TREATMENT ON THE BASIS OF RACE.  THIS WHOLLY
SPECULATIVE OBSERVATION BY THE COURT IS SUPPORTED NEITHER BY COMMON
EXPERIENCE NOR BY SCIENTIFIC AUTHORITY. 

EVEN GIVING MAXIMUM RATIONAL WEIGHT TO ALL OF THE FACTORS MENTIONED
BY THE COURT, I CANNOT CONCLUDE THAT SEPARATE SYSTEMS FOR EMPORIA AND
GREENSVILLE COUNTY WOULD BE ANYTHING LESS THAN FULLY UNITARY AND
NONRACIAL.  THE FOUNDATION AND SUPERSTRUCTURE OF THE DUAL SYSTEM WOULD
BE DISSOLVED, AND THE RESULT WOULD NOT FACTUALLY PRESERVE THE
SEPARATION OF RACES THAT EXISTED IN THE PAST.  WE NOTED IN SWANN "THAT
THE EXISTENCE OF SOME SMALL NUMBER OF ONE-RACE, OR VIRTUALLY ONE-RACE,
SCHOOLS WITHIN A DISTRICT IS NOT IN AND OF ITSELF THE MARK OF A SYSTEM
THAT STILL PRACTICES SEGREGATION BY LAW."  402 U.S.,AT 26.  THIS
REFLEFTS OUR CONSISTENT EMPHASIS ON THE ELIMINATION OF THE
DISCRIMINATORY SYSTEMS, RATHER THAN ON MERE NUMBERS IN PARTICULAR
SCHOOLS.  THE PROPOSED SYSTEMS HERE WOULD RETAIN NO "ONE-RACE, OR
VIRTUALLY ONE-RACE SCHOOLS," BUT MORE IMPORTANT, ALL VESTIGES OF THE
DISCRIMINATORY SYSTEM WOULD BE REMOVED.  THAT IS ALL THE CONSTITUTION
COMMANDS. 

IT IS ARGUED THAT EVEN IF EMPORIA'S OPERATION OF ITS OWN UNITARY
SCHOOL SYSTEM WOULD HAVE BEEN CONSTITUTIONALLY PERMISSIBLE, IT WAS
NEVERTHELESS WITHIN THE EQUITABLE DISCRETION OF THE DISTRICT COURT TO
INSIST ON A "MORE EFFECTIVE" PLAN OF DESEGREGATION IN THE FORM OF A
COUNTY-WIDE SCHOOL SYSTEM.  IN BROWN V. BOARD OF EDUCATION, 349 U.S.
294 (1955) (BROWN II), THE COURT FIRST CONFERRED ON THE DISTRICT COURTS
THE RESPONSIBILITY TO ENFORCE THE DESEGREGATION OF THE SCHOOLS, IF
SCHOOL AUTHORITIES FAILED TO DO SO, ACCORDING TO EQUITABLE REMEDIAL
PRINCIPLES.  WHILE WE HAVE EMPHASIZED THE FLEXIBILITY OF THE POWER OF
DISTRICT COURTS IN THIS PROCESS, THE INVOCATION OF REMEDIAL
JURISDICTION IS NOT EQUIVALENT TO HAVING A SCHOOL DISTRICT PLACED IN
RECEIVERSHIP.  IT HAS BEEN IMPLICIT IN ALL OF OUR DECISIONS FROM BROWN
II TO SWANN, THAT IF LOCAL AUTHORITIES DEVISE A PLAN THAT WILL
EFFECTIVELY ELIMINATE SEGREGATION IN THE SCHOOLS, A DISTRICT COURT MUST
ACCEPT SUCH A PLAN UNLESS THERE ARE STRONG REASONS WHY A DIFFERENT PLAN
IS TO BE PREFERRED.  A LOCAL SCHOOL BOARD PLAN THAT WILL ELIMINATE DUAL
SCHOOLS, STOP DISCRIMINATION, AND IMPROVE THE QUALITY OF EDUCATION
OUGHT NOT BE CAST ASIDE BECAUSE A JUDGE CAN EVOLVE SOME OTHER PLAN THAT
ACCOMPLISHES THE SAME RESULT, OR WHAT HE CONSIDERS A PREFERABLE RESULT,
WITH A TWO PERCENT, FOUR PERCENT, OR SIX PERCENT DIFFERENCE IN RACIAL
COMPOSITION.  SUCH AN APPROACH GIVES CONTROLLING WEIGHT TO SOCIOLOGICAL
THEORIES, NOT CONSTITUTIONAL DOCTRINE. 

THIS LIMITATION ON THE DISCRETION OF THE DISTRICT COURTS INVOLVES
MORE THAN POLITE DEFERENCE TO THE ROLE OF LOCAL GOVERNMENTS.  LOCAL
CONTROL IS NOT ONLY VITAL TO CONTINUED PUBLIC SUPPORT OF THE SCHOOLS,
BUT IT IS OF OVERRIDING IMPORTANCE FROM AN EDUCATIONAL STANDPOINT AS
WELL.  THE SUCCESS OF ANY SCHOOL SYSTEM DEPENDS ON A VAST RANGE OF
FACTORS THAT LIE BEYOND THE COMPETENCE AND POWER OF THE COURTS. 
CURRICULAR DECISIONS, THE STRUCTURING OF GRADE LEVELS, THE PLANNING OF
EXTRACURRICULAR ACTIVITIES, TO MENTION A FEW, ARE MATTERS LYING SOLELY
WITHIN THE PROVINCE OF SCHOOL OFFICIALS, WHO MAINTAIN A DAY-TO-DAY
SUPERVISION THAT A JUDGE CANNOT.  A PLAN DEVISED BY SCHOOL OFFICIALS IS
APT TO BE ATTUNED TO THESE HIGHLY RELEVANT EDUCATIONAL GOALS; A PLAN
DEEMED PREFERABLE IN THE ABSTRACT BY A JUDGE MIGHT WELL OVERLOOK AND
THUS UNDERMINE THESE PRIMARY CONCERNS. 

THE DISCRETION OF A DISTRICT COURT IS FURTHER LIMITED WHERE, AS
HERE, IT DEALS WITH TOTALLY SEPARATE POLITICAL ENTITIES.  THIS IS A
VERY DIFFERENT CASE FROM ONE WHERE A SCHOOL BOARD PROPOSES ATTENDANCE
ZONES WITHIN A SINGLE SCHOOL DISTRICT OR EVEN ONE WHERE A SCHOOL
DISTRICT IS NEWLY FORMED WITHIN A COUNTY UNIT.  UNDER VIRGINIA LAW,
EMPORIA IS AS INDEPENDENT FROM GREENSVILLE COUNTY AS ONE STATE IS FROM
ANOTHER.  SEE CITY OF RICHMOND V. COUNTY BOARD, 199 VA. 679, 684, 101
S.E.2D 641, 644 (1958); MURRAY V. CITY OF ROANOKE, 192 VA. 321, 324, 64
S.E.2D 804, 807 (1951).  THIS MAY BE AN ANOMALY IN MUNICIPAL
JURISPRUDENCE, BUT IT IS VIRGINIA'S ANOMALY; IT IS OF ANCIENT ORIGIN,
AND IT IS NOT FORBIDDEN BY THE CONSTITUTION.  TO BAR THE CITY OF
EMPORIA FROM OPERATING ITS OWN SCHOOL SYSTEM IS TO STRIP IT OF ITS MOST
IMPORTANT GOVERNMENTAL RESPONSIBILITY, AND THUS LARGELY TO DENY ITS
EXISTENCE AS AN INDEPENDENT GOVERNMENTAL ENTITY.  IT IS A SERIOUS STEP
AND, ABSENT THE FACTORS THAT PERSUADE ME TO THE CONTRARY IN SCOTLAND
NECK, /2/  DECIDED TODAY, I AM UNWILLING TO GO THAT FAR. 

ALTHOUGH THE RIGHTS AND POWERS OF A BONA FIDE POLITICAL ENTITY MAY
NOT BE USED AS A CLOAK FOR EVASIVE ACTION, NEITHER CAN THOSE POWERS BE
NULLIFIED BY JUDICIAL INTERVENTION TO ACHIEVE A UNITARY SYSTEM IN A
PARTICULAR WAY.  WHEN A PLAN DEVISED BY LOCAL AUTHORITIES CROSSES THE
THRESHOLD OF ACHIEVING ACTUAL DESEGREGATION, IT IS NOT FOR THE DISTRICT
COURTS TO OVERSTEP LOCAL PREROGATIVES AND INSIST ON SOME OTHER
ALTERNATIVE.  JUDICIAL POWER ENDS WHEN A DUAL SCHOOL SYSTEM HAS CEASED
TO EXIST. 

SINCE EMPORIA'S OPERATION OF A SEPARATE SCHOOL SYSTEM WOULD NOT
COMPROMISE THE GOAL OF ELIMINATING DUAL SCHOOLS, THERE IS NO BASIS FOR
REQUIRING EMPORIA TO DEMONSTRATE THE NECESSITY OF ITS DECISION.  THE
"HEAVY BURDEN" TEST REFERRED TO IN GREEN APPLIES ONLY WHERE THERE IS
SERIOUS REASON TO DOUBT THE EFFICACY OF A SCHOOL BOARD'S PLAN AS A
MEANS OF ACHIEVING DESEGREGATION, AND THERE IS NO BASIS FOR SUCH DOUBT
HERE.  NONETHELESS, THE COURT'S TREATMENT OF EMPORIA'S REASONS FOR
ESTABLISHING A SEPARATE SYSTEM MERITS COMMENT. 

THE COURT MAKES LIGHT OF EMPORIA'S DESIRE TO CREATE A HIGH-QUALITY,
UNITARY SCHOOL SYSTEM FOR THE CHILDREN OF ITS CITIZENS.  IN SO DOING,
THE COURT DISREGARDS THE FOLLOWING EXPLICIT FINDING OF THE DISTRICT
COURT: 

     "THE CITY CLEARLY CONTEMPLATES A SUPERIOR QUALITY EDUCATIONAL

  PROGRAM.  IT IS ANTICIPATED THAT THE COST WILL BE SUCH AS TO

  REQUIRE HIGHER TAX PAYMENTS BY CITY RESIDENTS.  A KINDERGARTEN

  PROGRAM, UNGRADED PRIMARY LEVELS, HEALTH SERVICES, ADULT

  EDUCATION, AND A LOW PUPIL-TEACHER RATIO ARE INCLUDED IN THE

  PLAN.  . . . " 309 F.SUPP.,AT 674. 

FURTHERMORE, THE COURT SUGGESTS THAT IF EMPORIA WERE IN FACT TO PROVIDE
THE TOP-FLIGHT EDUCATIONAL PROGRAM THE DISTRICT JUDGE ANTICIPATED, IT
COULD ONLY WORSEN THE QUALITY OF EDUCATION IN THE REMAINING COUNTY
SCHOOLS.  TO BE SURE, THERE WAS CAUSE FOR CONCERN OVER THE RELATIVE
QUALITY OF EDUCATION OFFERED IN THE COUNTY SCHOOLS; AS THE DISTRICT
COURT OBSERVED, COUNTY OFFICIALS DID "NOT EMBRACE THE COURT-ORDERED
UNITARY PLAN WITH ENTHUSIASM."  309 F.SUPP.,AT 680.  THE RECORD SHOWS
THAT PRIOR TO THE 1969-1970 SCHOOL YEAR, PER-PUPIL EXPENDITURES IN
GREENSVILLE COUNTY LAGGED BEHIND THE STATE MEDIAN, AND THAT THE
INCREASE IN THE COUNTY SCHOOL BUDGET FOR THE 1969-1970 SCHOOL YEAR WAS
INSUFFICIENT TO KEEP ABREAST OF INFLATION, NOT TO MENTION INCREASED
TRANSPORTATION COSTS.  BUT THE CITY OF EMPORIA WAS IN NO POSITION TO
ALLEVIATE THIS PROBLEM FOR THE COUNTY.  THE COUNTY HAD PREVIOUSLY
REFUSED TO ALLOW THE CITY TO PARTICIPATE IN JOINT ADMINISTRATION OF THE
SCHOOLS, AND THE CITY HAD ABSOLUTELY NO POWER TO AFFECT THE LEVEL OF
FUNDING FOR THE COUNTY SCHOOLS.  UNDER THE CONTRACT, EMPORIA WAS THE
PURCHASER OF WHATEVER EDUCATIONAL SERVICES THE COUNTY HAD TO OFFER. 
OUT OF UNDERSTANDABLE CONCERN FOR THE QUALITY OF THESE SERVICES, IT
SOUGHT TO ALTER THE CONTRACTUAL ARRANGEMENT IN ORDER TO PROVIDE BETTER
UNITARY SCHOOLS. 

THERE IS NO BASIS ON THIS RECORD FOR ASSUMING THAT THE QUALITY OF
EDUCATION IN THE COUNTY SCHOOLS WAS LIKELY TO SUFFER FURTHER DUE TO
EMPORIA'S WITHDRAWAL.  THE COURT RELIES ON THE DISTRICT COURT'S FINDING
THAT "THE DESIRE OF THE CITY LEADERS, COUPLED WITH THEIR OBVIOUS
LEADERSHIP ABILITY, IS AND WILL BE AN IMPORTANT FACET IN THE SUCCESSFUL
OPERATION OF ANY COURT-ORDERED PLAN."  309 F.SUPP.,AT 679.  THE
DISTRICT COURT MADE THIS FINDING DESPITE THE FACT THAT THE COUNTY HAD
REFUSED TO ADMINISTER THE SCHOOLS JOINTLY WITH THE CITY, AND DESPITE
UNCONTRADICTED EVIDENCE THAT THERE WAS NO LINE OF COMMUNICATIONS
BETWEEN THE CITY AND COUNTY GOVERNMENTS, THAT THE CITY GOVERNMENT HAD
BEEN UNABLE TO GET ANY COOPERATION FROM THE COUNTY GOVERNMENT, AND THAT
THERE WAS AN ATOMSPHERE OF ACTIVE ANTAGONISM BETWEEN THE TWO
GOVERNMENTS.  WITH ALL DEFERENCE TO THE TRIER OF FACT, I CANNOT ACCEPT
THIS FINDING AS SUPPORTED BY EVIDENCE IN THE RECORD OF THIS CASE.  IT
APPEARS THAT THE DISTRICT COURT WANTED THAT "OBVIOUS LEADERSHIP
ABILITY" OF EMPORIA'S CITIZENS TO EXERT ITS INFLUENCE ON THE MORE
RELUCTANT LEADERSHIP IN THE COUNTY.  THIS IS A LAUDABLE GOAL IN THE
ABSTRACT, BUT THE COURTS MUST ADJUST THEIR REMEDIES TO THE FACTS OF
EACH CASE AS THEY BEAR ON THE CENTRAL PROBLEM OF ELIMINATING A DUAL
SYSTEM. 

ALTHOUGH ACKNOWLEDGING EMPORIA'S NEED TO HAVE SOME "(DIRECT CONTROL
OVER DECISIONS VITALLY AFFECTING THE EDUCATION OF (ITS) CHILDREN," THE
COURT STATES THAT SINCE EMPORIA FOUND THE CONTRACTUAL ARRANGEMENT
TOLERABLE PRIOR TO 1969, IT SHOULD NOT NOW BE HEARD TO COMPLAIN. 
HOWEVER, THE CITY DID NOT ENTER THAT CONTRACT OF ITS OWN FREE CHOICE. 
FROM THE TIME EMPORIA BECAME A CITY, CONSIDERATION WAS GIVEN TO THE
FORMATION OF A SEPARATE SCHOOL SYSTEM, AND IT WAS AT LEAST THOUGHT
NECESSARY THAT THE CITY PARTICIPATE IN ADMINISTRATION OF THE COUNTY
SCHOOL SYSTEM.  AFTER THE COUNTY REJECTED THE CITY'S PROPOSAL FOR JOINT
ADMINISTRATION, THE COUNTY THREATENED TO TERMINATE EDUCATIONAL SERVICES
FOR CITY CHILDREN UNLESS THE CITY ENTERED AN AGREEMENT BY APRIL 30,
1968.  ONLY THEN-- UNDER VIRTUAL DURESS-- DID THE CITY SUBMIT TO THE
CONTRACTUAL ARRANGEMENT.  IT WAS NOT UNTIL JUNE 1969 THAT THE CITY WAS
ADVISED BY ITS COUNSEL THAT THE AGREEMENT MIGHT BE ILLEGAL.  STEPS WERE
THEN TAKEN TO TERMINATE THE STRAINED RELATIONSHIP. 

RECOGNIZING THE TENSIONS INHERENT IN A CONTRACTUAL ARRANGEMENT PUT
TOGETHER UNDER THESE CONDITIONS, THE COURT INDICATES THAT EMPORIA MIGHT
BE PERMITTED TO OPERATE A SEPARATE SCHOOL SYSTEM AT SOME FUTURE TIME. 
THE COURT DOES NOT EXPLAIN HOW THE PASSAGE OF TIME WILL SUBSTANTIALLY
ALTER THE SITUATION THAT EXISTED AT THE TIME THE DISTRICT COURT ENTERED
ITS INJUNCTION.  IF, AS THE COURT STATES, DESEGREGATION IN THE COUNTY
WAS DESTINED TO FAIL IF EMPORIA ESTABLISHED ITS OWN SCHOOL SYSTEM IN
1969, IT IS DIFFICULT TO UNDERSTAND WHY IT WOULD NOT BE AN UNDUE RISK
TO ALLOW SEPARATION IN THE FUTURE.  THE MORE REALISTIC VIEW IS THAT
THERE WAS NEVER SUCH A DANGER, AND THAT THE DISTRICT COURT HAD NO CAUSE
TO DISREGARD EMPORIA'S DESIRE TO FREE ITSELF FROM ITS TIES TO
GREENSVILLE COUNTY.  HOWEVER, EVEN ON THE COURT'S TERMS, I ASSUME THAT
EMPORIA COULD GO BACK TO THE DISTRICT COURT TOMORROW AND RENEW ITS
REQUEST TO OPERATE A SEPARATE SYSTEM.  THE COUNTY-WIDE PLAN HAS BEEN IN
EFFECT FOR THE PAST THREE YEARS, AND THE CITY SHOULD NOW BE RELIEVED OF
THE COURT-IMPOSED DUTY TO PURCHASE WHATEVER QUALITY OF EDUCATION THE
COUNTY SEES FIT TO PROVIDE. 

FINALLY, SOME DISCUSSION IS WARRANTED OF THE RELEVANCE OF
DISCRIMINATORY PURPOSE IN CASES SUCH AS THESE.  IT IS, OF COURSE,
CORRECT THAT "(THE MEASURE OF ANY DESEGREGATION PLAN IS ITS
EFFECTIVENESS," DAVIS V. BOARD OF SCHOOL COMM'RS, 402 U.S.,AT 37, AND
THAT A PLAN THAT STOPS SHORT OF DISMANTLING A DUAL SCHOOL SYSTEM CANNOT
BE REDEEMED BY BENEVOLENT MOTIVES.  BUT IT IS ALSO TRUE THAT EVEN WHERE
A DUAL SYSTEM HAS IN FACT BEEN DISMANTLED, AS IT PLAINLY HAS BEEN IN
EMPORIA, WE MUST STILL BE ALERT TO MAKE SURE THAT OSTENSIBLY
NONDISCRIMINATORY ACTIONS ARE NOT DESIGNED TO EXCLUDE CHILDREN FROM
SCHOOLS BECAUSE OF THEIR RACE.  WE ARE WELL AWARE THAT THE PROGRESS OF
SCHOOL DESEGREGATION SINCE 1954 HAS BEEN HAMPERED BY PERSISTENT
RESISTANCE AND EVASION IN MANY PLACES.  THUS, THE NORMAL JUDICIAL
RELUCTANCE TO PROBE THE MOTIVES OR PURPOSES UNDERLYING OFFICIAL ACTS
MUST YIELD TO THE REALITIES IN THIS VERY SENSITIVE AREA OF
CONSTITUTIONAL ADJUDICATION.  COMPARE GRIFFIN V. COUNTY SCHOOL BOARD OF
PRINCE EDWARD COUNTY, 377 U.S. 218 (1964), WITH PALMER V. THOMPSON, 403
U.S. 217 (1971). 

THERE IS NO BASIS FOR CONCLUDING, ON THIS RECORD, THAT EMPORIA'S
DECISION TO OPERATE A SEPARATE SCHOOL SYSTEM WAS THE MANIFESTATION OF A
DISCRIMINATORY PURPOSE.  THE STRONGEST FINDING MADE BY THE DISTRICT
COURT WAS THAT RACE WAS "IN A SENSE" A FACTOR IN THE CITY'S DECISION;
READ IN CONTEXT, THIS AMBIGUOUS FINDING DOES NOT RELATE TO ANY
INVIDIOUS CONSIDERATION OF RACE.  THE DISTRICT COURT RELIED SOLELY ON
THE FOLLOWING TESTIMONY OF THE CHAIRMAN OF THE CITY SCHOOL BOARD: 

"RACE, OF COURSE, AFFECTED THE OPERATION OF THE SCHOOLS BY THE
COUNTY, AND I AGAIN SAY, I DO NOT THINK, OR WE FELT THAT THE COUNTY WAS
NOT CAPABLE OF PUTTING THE MONIES IN AND THE EFFORT AND THE LEADERSHIP
INTO A SYSTEM THAT WOULD EFFECTIVELY MAKE A UNITARY SYSTEM WORK . . .
," 390 F.SUPP.,AT 680.  I CANNOT VIEW THIS KIND OF CONSIDERATION OF
RACE AS DISCRIMINATORY OR EVEN OBJECTIONABLE.  THE SAME DOUBTS ABOUT
THE COUNTY'S COMMITMENT TO THE OPERATION OF A HIGH-QUALITY UNITARY
SYSTEM WOULD HAVE COME INTO PLAY EVEN IF THE RACIAL COMPOSITION OF
EMPORIA WERE PRECISELY THE SAME AS THAT OF THE ENTIRE COUNTY AREA,
INCLUDING EMPORIA. 

NOR IS THIS A CASE WHERE WE CAN PRESUME A DISCRIMINATORY PURPOSE
FROM AN OBVIOUSLY DISCRIMINATORY EFFECT.  CF. GOMILLION V. LIGHTFOOT,
364 U.S. 339 (1960).  WE ARE NOT CONFRONTED WITH AN AWKWARD GERRYMANDER
OR STRIKING SHIFT IN RACIAL PROPORTIONS.  THE MODEST DIFFERENCE BETWEEN
THE RACIAL COMPOSITION OF EMPORIA'S PROPOSED SEPARATE SCHOOL SYSTEM AND
THAT OF THE COUNTY AS A WHOLE AFFORDS NO BASIS FOR AN INFERENCE OF
RACIAL MOTIVATION.  AND WHILE IT SEEMS THAT THE MORE CUMBERSOME
FEATURES OF THE DISTRICT COURT'S PLAN HASTENED THE CITY'S INEVITABLE
DECISION TO OPERATE A SEPARATE UNITARY SCHOOL SYSTEM, THIS WAS NOT
BECAUSE OF ANY DESIRE TO MANIPULATE THE RACIAL BALANCE OF ITS SCHOOLS. 

READ AS A WHOLE, THIS RECORD SUGGESTS THAT THE DISTRICT COURT,
ACTING BEFORE OUR DECISION IN SWANN, WAS REACHING FOR SOME HYPOTHETICAL
PERFECTION IN RACIAL BALANCE, RATHER THAN THE ELIMINATION OF A DUAL
SCHOOL SYSTEM.  TO PUT IT IN THE SIMPLEST TERMS, THE COURT, IN ADOPTING
THE DISTRICT COURT'S APPROACH, GOES TOO FAR. 

/1/  THE RECORD SHOWS THAT THE PUPIL-TEACHER RATIO IN THE COUNTY
SCHOOLS IS LESS THAN 25 TO 1.  ASSUMING SOME ROUGH CORRESPONDENCE
BETWEEN THIS RATIO AND THE SIZE OF CLASSES, A 6% RACIAL SHIFT WOULD
REPRESENT A CHANGE IN THE RACIAL IDENTITY OF 1.5 STUDENTS PER CLASS ON
THE AVERAGE. 

/2/  UNITED STATES V. SCOTLAND NECK CITY BOARD OF EDUCATION AND
COTTON V. SCOTLAND NECK CITY BOARD OF EDUCATION, POST, P. 484. 

SAMUEL W. TUCKER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE JACK GREENBERG, JAMES M. NABRIT III, AND NORMAN J.
CHACHKIN. 

D. DORTCH WARRINER ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS JOHN F. KAY, JR. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL NORMAN, AND
DEPUTY SOLICITOR GENERAL WALLACE FILED A MEMORANDUM FOR THE UNITED
STATES AS AMICUS CURIAE URGING REVERSAL. 
..END :


















UNITED STATES V. SCOTLAND NECK BD. OF EDUC., 407 U.S. 484 


       UNITED STATES V. SCOTLAND NECK CITY BOARD OF EDUCATION ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 70-130.  ARGUED FEBRUARY 29-MARCH 1, 1972-- DECIDED
JUNE

           22, 1972  /0/ 


A STATE STATUTE AUTHORIZED CREATION OF A NEW SCHOOL DISTRICT FOR
SCOTLNAD NECK, N.C., A CITY THAT WAS PART OF THE LARGER HALIFAX COUNTY
SCHOOL DISTRICT, THEN IN THE PROCESS OF DISMANTLING A DUAL SCHOOL
SYSTEM.  THE DISTRICT COURT IN THIS LITIGATION INSTITUTED BY THE UNITED
STATES ENJOINED IMPLEMENTATION OF THE STATUTE AS CREATING A REFUGE FOR
WHITE STUDENTS AND PROMOTING SCHOOL SEGREGATION IN THE COUNTY.  THE
COURT OF APPEALS REVERSED, RULING THAT THE STATUTE'S IMPACT ON
DISMANTLING THE COUNTY DUAL SYSTEM WAS MINIMAL AND THAT IT SHOULD NOT
BE REGARDED AS AN ALTERNATIVE DESEGREGATION PLAN FOR THE COUNTY SINCE
IT WAS ENACTED BY THE LEGISLATURE AND NOT BY THE SCHOOL BOARD.  HELD:
WHETHER THE ACTION AFFECTING DISMANTLING OF A DUAL SCHOOL SYSTEM IS
INITIATED BY THE LEGISLATURE OR BY THE SCHOOL BOARD IS IMMATERIAL,
NORTH CAROLINA BOARD OF EDUCATION V. SWANN, 402 U.S. 43; THE CRITERION
IS WHETHER THE DISMANTLING IS FURTHERED OR HINDERED BY CARVING A NEW
SCHOOL DISTRICT FROM THE LARGER DISTRICT HAVING THE DUAL SCHOOL SYSTEM,
AND A PROPOSAL THAT WOULD IMPEDE THE DISMANTLING PROCESS MAY BE
ENJOINED.  WRIGHT V. COUNCIL OF CITY OF EMPORIA, ANTE, P. 451.  PP. 488
491. 

442. F.2S 575, REVERSED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, WHITE, AND MARSHALL, JJ., JOINED.  BURGER, C.J., FILED AN
OPINION CONCURRING IN THE RESULT, IN WHICH BLACKMUN, POWELL, AND
REHNQUIST, JJ., JOINED, POST, P. 491. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS IN THESE CONSOLIDATED CASES CHALLENGE THE
IMPLEMENTATION OF A NORTH CAROLINA STATUTE AUTHORIZING THE CREATION OF
A NEW SCHOOL DISTRICT FOR SCOTLAND NECK, A CITY WHICH AT THE TIME OF
THE STATUTE'S ENACTMENT WAS PART OF A LARGER SCHOOL DISTRICT THEN IN
THE PROCESS OF DISMANTLING A DUAL SCHOOL SYSTEM.  IN A JUDGMENT ENTERED
THE SAME DAY AS ITS JUDGMENT IN COUNCIL OF CITY OF EMPORIA V. WRIGHT,
442 F.2D 570, A DECISION WHICH WE REVERSE TODAY, ANTE, P. 451, THE
COURT OF APPEALS HELD THAT THE DISTRICT COURT ERRED IN ENJOINING THE
CREATION OF THE NEW SCHOOL DISTRICT. 

SCOTLAND NECK IS A COMMUNITY OF ABOUT 3,000 PERSONS, LOCATED IN THE
SOUTHEASTERN PORTION OF HALIFAX COUNTY, NORTH CAROLINA.  SINCE 1936,
THE CITY HAS BEEN A PART OF THE HALIFAX COUNTY ADMINISTRATIVE UNIT, A
SCHOOL DISTRICT COMPRISING THE ENTIRE COUNTY WITH THE EXCEPTION OF TWO
TOWNS LOCATED IN THE NORTHERN SECTION.  IN THE 1968-1969 SCHOOL YEAR,
10,655 STUDENTS ATTENDED SCHOOLS IN THIS SYSTEM, OF WHOM 77% WERE
NEGRO, 22% WHITE, AND 1% AMERICAN INDIAN. 

THE SCHOOLS OF HALIFAX COUNTY WERE COMPLETELY SEGREGATED BY RACE
UNTIL 1965.  IN THAT YEAR, THE SCHOOL BOARD ADOPTED A FREEDOM-OF-CHOICE
PLAN THAT PRODUCED VERY LITTLE ACTUAL DESEGREGATION.  IN THE 1967-1968
SCHOOL YEAR, ALL OF THE WHITE STUDENTS IN THE COUNTY ATTENDED THE FOUR
TRADITIONALLY ALL-WHITE SCHOOLS, WHILE 97% OF THE NEGRO STUDENTS
ATTENDED THE 14 TRADITIONALLY ALL-NEGRO SCHOOLS.  THE SCHOOL-BUSING
SYSTEM, USED BY 90% OF THE STUDENTS, WAS SEGREGATED BY RACE, AND
FACULTY DESEGREGATION WAS MINIMAL. 

IN 1968, THE UNITED STATES DEPARTMENT OF JUSTICE ENTERED INTO
NEGOTIATIONS WITH THE HALIFAX COUNTY SCHOOL BOARD TO BRING THE COUNTY'S
SCHOOL SYSTEM INTO COMPLIANCE WITH FEDERAL LAW.  AN AGREEMENT WAS
REACHED WHEREBY THE SCHOOL BOARD UNDERTOOK TO PROVIDE SOME
DESEGREGATION IN THE FALL OF 1968, AND TO EFFECT A COMPLETELY UNITARY
SYSTEM IN THE 1969-1970 SCHOOL YEAR.  THE STATE DEPARTMENT OF PUBLIC
INSTRUCTION, ACTING ON A REQUEST FROM THE COUNTYBOARD, RECOMMENDED A
DETAILED PLAN (THE INTERIM PLAN) FOR THE UNITARY SYSTEM THAT WOULD HAVE
PUT SOME WHITE STUDENTS IN EVERY SCHOOL IN THE COUNTY, AND THAT WOULD
HAVE LEFT A WHITE MAJORITY IN ONLY ONE SCHOOL. 

IN JANUARY 1969, AFTER THE INTERIM PLAN HAD BEEN SUBMITTED TO THE
COUNTY SCHOOL BOARD BUT BEFORE ANY ACTION HAD BEEN TAKEN UPON IT, A
BILL WAS INTRODUCED IN THE STATE LEGISLATURE TO AUTHORIZE THE CREATION
OF A NEW SCHOOL DISTRICT BOUNDED BY THE CITY LIMITS OF SCOTLAND NECK,
UPON APPROVAL BY A MAJORITY OF THE CITY'S VOTERS.  /1/  THE BILL WAS
ENACTED ON MARCH 3, 1969, AS CHAPTER 31 OF THE 1969 SESSION LAWS OF
NORTH CAROLINA.  THE CITIZENS OF SCOTLAND NECK APPROVED THE NEW SCHOOL
DISTRICT IN A REFERENDUM A MONTH LATER, /2/  AND THE NEW DISTRICT BEGAN
TAKING STEPS TOWARD BEGINNING A SEPARATE SCHOOL SYSTEM IN THE FALL OF
1969. 

THE EFFECT OF CHAPTER 31 WAS TO CARVE OUT OF THE HALIFAX SCHOOL
DISTRICT A NEW UNIT WITH 695 STUDENTS, OF WHOM 399 (57%) WERE WHITE AND
296 (43%) WERE NEGRO.  UNDER A TRANSFER PLAN DEVISED BY THE NEWLY
APPOINTED SCOTLAND NECK CITY BOARD OF EDUCATION, 360 STUDENTS (350
WHITE AND 10 NEGRO) RESIDING OUTSIDE THE CITY LIMITS APPLIED TO
TRANSFER INTO THE SCOTLAND NECK SCHOOLS, WHILE 44 STUDENTS (ALL NEGRO)
APPLIED TO TRANSFER OUT OF THE CITY SYSTEM TO A NEARBY SCHOOL IN THE
HALIFAX COUNTY SYSTEM.  THE NEW DISTRICT PLANNED TO USE THE FACILITIES
OF THE FORMERLY ALL-WHITE SCOTLAND NECK HIGH SCHOOL, INCLUDING ONE
BUILDING LOCATED OUTSIDE THE CITY LIMITS THAT WOULD BE LEASED FROM THE
COUNTY. 

THE UNITED STATES FILED THIS LAWSUIT IN JUNE 1969 AGAINST BOTH CITY
AND COUNTY OFFICIALS, SEEKING DESEGREGATION OF THE EXISTING HALIFAX
COUNTY SCHOOLS.  /3/  THE COMPLAINT ASKED FOR PRELIMINARY AND PERMANENT
INJUNCTIONS AGASINT THE IMPLEMENTATION OF CHAPTER 31.  VARIOUS NEGRO
CHILDREN, PARENTS, AND TEACHERS, THE PETITIONERS IN NO. 70-187, WERE
PERMITTED TO INTERVENE AS PLAINTIFFS. 

AFTER A THREE-DAY HEARING BEFORE TWO DISTRICT JUDGES ON BOTH THIS
CASE AND A SIMILAR CASE INVOLVING TWO NEWLY CREATED SCHOOL DISTRICTS IN
NEIGHBORING WARREN COUNTY, THE DISTRICT COURT PRELIMINARILY ENJOINED
THE IMPLEMENTATION OF CHAPTER 31, FINDING THAT "THE ACT IN ITS
APPLICATION CREATES A REFUGE FOR WHITE STUDENTS, AND PROMOTES
SEGREGATED SCHOOLS IN HALIFAX COUNTY," AND FURTHER THAT "(THE ACT
IMPEDES AND DEFEATS THE HALIFAX COUNTY BOARD OF EDUCATION FROM
IMPLEMENTING ITS PLAN TO COMPLETELY DESEGREGATE ALL OF THE PUBLIC
SCHOOLS IN HALIFAX COUNTY BY THE OPENING OF THE SCHOOL YEAR 1969-70." 
/4/  AFTER FURTHER HEARINGS, THE DISTRICT COURT ON MAY 23, 1970, FOUND
CHAPTER 31 UNCONSTITUTIONAL AND PERMANENTLY ENJOINED ITS ENFORCEMENT. 
314 F.SUPP.  65.  THE COURT OF APPEALS REVERSED, 442 F.2D 575, AND WE
GRANTED CERTIORARI.  404 U.S. 821. 

THE COURT OF APPEALS DID NOT BELIEVE THAT THE SEPARATION OF SCOTLAND
NECK FROM THE HALIFAX COUNTY SYSTEM SHOULD BE VIEWED AS AN ALTERNATIVE
PLAN FOR DESEGREGATING THE COUNTY SYSTEM, BECAUSE THE "SEVERANCE WAS
NOT PART OF A DESEGREGATION PLAN PROPOSED BY THE SCHOOL BOARD BUT WAS
INSTEAD AN ACTION BY THE LEGISLATURE REDEFINING THE BOUNDARIES OF LOCAL
GOVERNMENTAL UNITS."  442 F.2D,AT 583.  THIS SUGGESTS THAT AN ACTION OF
A STATE LEGISLATURE AFFECTING THE DESEGREGATION OF A DUAL SYSTEM STANDS
ON A FOOTING DIFFERENT FROM AN ACTION OF A SCHOOL BOARD.  BUT IN NORTH
CAROLINA BOARD OF EDUCATION V. SWANN, 402 U.S. 43, DECIDED AFTER THE
DECISION OF THE COURT OF APPEALS IN THIS CASE, WE HELD THAT "IF A STATE
IMPOSED LIMITATION ON A SCHOOL AUTHORITY'S DISCRETION OPERATES TO
INHIBIT OR OBSTRUCT . . . THE DISESTABLISHING OF A DUAL SCHOOL SYSTEM,
IT MUST FALL; STATE POLICY MUST GIVE WAY WHEN IT OPERATES TO HINDER
VINDICATION OF FEDERAL CONSTITUTIONAL GUARANTEES."  ID., AT 45.  THE
FACT THAT THE CREATION OF THE SCOTLAND NECK SCHOOL DISTRICT WAS
AUTHORIZED BY A SPECIAL ACT OF THE STATE LEGISLATURE RATHER THAN BY THE
SCHOOL BOARD OR CITY AUTHORITIES THUS HAS NO CONSTITUTIONAL
SIGNIFICANCE. 

WE HAVE TODAY HELD THAT ANY ATTEMPT BY STATE OR LOCAL OFFICIALS TO
CARVE OUT A NEW SCHOOL DISTRICT FROM AN EXISTING DISTRICT THAT IS IN
THE PROCESS OF DISMANTLING A DUAL SCHOOL SYSTEM "MUST BE JUDGED
ACCORDING TO WHETHER IT HINDERS OR FURTHERS THE PROCESS OF SCHOOL
DESEGREGATION.  IF THE PROPOSAL WOULD IMPEDE THE DISMANTLING OF A DUAL
SYSTEM, THEN A DISTRICT COURT, IN THE EXERCISE OF ITS REMEDIAL
DISCRETION, MAY ENJOIN IT FROM BEING CARRIED OUT."  WRIGHT V. COUNCIL
OF CITY OF EMPORIA, SUPRA, AT 460.  THE DISTRICT COURT IN THIS CASE
CONCLUDED THAT CHAPTER 31 "WAS ENACTED WITH THE EFFECT OF CREATING A
REFUGE FOR WHITE STUDENTS OF THE HALIFAX COUNTY SCHOOL SYSTEM, AND
INTERFERES WITH THE DESEGREGATION OF THE HALIFAX COUNTY SCHOOL SYSTEM. 
. . . " 314 F.SUPP.,AT 78.  THE COURT OF APPEALS, HOWEVER, DID NOT
REGARD THE SEPARATION OF SCOTLAND NECK AS CREATING A REFUGE FOR WHITE
STUDENTS SEEKING TO ESCAPE DESEGREGATION, AND IT HELD THAT "THE EFFECT
OF THE SEPARATION OF THE SCOTLAND NECK SCHOOLS AND STUDENTS ON THE
DESEGREGATION OF THE REMAINDER OF THE HALIFAX COUNTY SYSTEM IS MINIMAL
AND INSUFFICIENT TO INVALIDATE CHAPTER 31."  442 F.2D,AT 582.  OUR
REVIEW OF THE RECORD LEADS US TO CONCLUDE THAT THE DISTRICT COURT'S
DETERMINATION WAS THE ONLY PROPER INFERENCE TO BE DRAWN FROM THE FACTS
OF THIS LITIGATION, AND WE THUS REVERSE THE JUDGMENT OF THE COURT OF
APPEALS. 

THE MAJOR IMPACT OF CHAPTER 31 WOULD FALL ON THE SOUTHEASTERN
PORTION OF HALIFAX COUNTY, DESIGNATED AS DISTRICT I IN THE INTERIM PLAN
FOR UNITARY SCHOOLS PROPOSED BY THE STATE DEPARTMENT OF PUBLIC
INSTRUCTION.  THE PROJECTED ENROLLMENT IN THE SCHOOLS OF THIS DISTRICT
UNDER THE INTERIM PLAN WAS 2,948 STUDENTS, OF WHOM 78% WERE NEGRO.  IF
CHAPTER 31 WERE IMPLEMENTED, THE SCOTLAND NECK SCHOOLS WOULD BE 57%
WHITE, WHILE THE SCHOOLS REMAINING IN DISTRICT I WOULD BE 89% NEGRO. 
THE TRADITIONAL RACIAL IDENTITIES OF THE SCHOOLS IN THE AREA WOULD BE
MAINTAINED; THE FORMERLY ALL-WHITE SCOTLAND NECK SCHOOL WOULD RETAIN A
WHITE MAJORITY, WHILE THE FORMERLY ALL-NEGRO BRAWLEY SCHOOL, A HIGH
SCHOOL LOCATED JUST OUTSIDE SCOTLAND NECK, WOULD BE 91% NEGRO. 

IN SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 401 U.S. 1, WE
SAID THAT DISTRICT JUDGES OR SCHOOL AUTHORITIES "SHOULD MAKE EVERY
EFFORT TO ACHIEVE THE GREATEST POSSIBLE DEGREE OF ACTUAL
DESEGREGATION," AND THAT IN FORMULATING A PLAN TO REMEDY STATE-ENFORCED
SCHOOL SEGREGATION THERE SHOULD BE "A PRESUMPTION AGAINST SCHOOLS THAT
ARE SUBSTANTIALLY DISPROPORTIONATE IN THEIR RACIAL COMPOSITION."  ID.,
AT 26.  AND WE HAVE SAID TODAY IN WRIGHT V. COUNCIL OF CITY OF EMPORIA,
SUPRA, AT 463, THAT "DESEGREGATION IS NOT ACHIEVED BY SPLITTING A
SINGLE SCHOOL SYSTEM OPERATING 'WHITE SCHOOLS' AND 'NEGRO SCHOOLS' INTO
TWO NEW SYSTEMS, EACH OPERATING UNITARY SCHOOLS WITHIN ITS BORDERS,
WHERE ONE OF THE TWO NEW SYSTEMS, IS, IN FACT, 'WHITE' AND THE OTHER
IS, IN FACT, 'NEGRO.'"

IN THIS LITIGATION, THE DISPARITY IN THE RACIAL COMPOSITION OF THE
SCOTLAND NECK SCHOOLS AND THE SCHOOLS REMAINING IN DISTRICT I OF THE
HALIFAX COUNTY SYSTEM WOULD BE "SUBSTANTIAL" BY ANY STANDARD OF
MEASUREMENT.  AND THE ENTHUSIASTIC RESPONSE AMONG WHITES RESIDING
OUTSIDE SCOTLAND NECK TO THE SCHOOL BOARD'S PROPOSED TRANSFER PLAN
CONFIRMED WHAT THE FIGURES SUGGEST:  THE SCOTLAND NECK SCHOOL WAS TO BE
THE "WHITE SCHOOL" OF THE AREA, WHILE THE OTHER DISTRICT I SCHOOLS
WOULD REMAIN "NEGRO SCHOOLS."  GIVEN THESE FACTS, WE CANNOT BUT
CONCLUDE THAT THE IMPLEMENTATION OF CHAPTER 31 WOULD HAVE THE EFFECT OF
IMPEDING THE DISESTABLISHMENT OF THE DUAL SCHOOL SYSTEM THAT EXISTED IN
HALIFAX COUNTY. 

THE PRIMARY ARGUMENT MADE BY THE RESPONDENTS IN SUPPORT OF CHAPTER
31 IS THAT THE SEPARATION OF THE SCOTLAND NECK SCHOOLS FROM THOSE OF
HALIFAX COUNTY WAS NECESSARY TO AVOID "WHITE FLIGHT" BY SCOTLAND NECK
RESIDENTS INTO PRIVATE SCHOOLS THAT WOULD FOLLOW COMPLETE DISMANTLING
OF THE DUAL SCHOOL SYSTEM.  SUPPLEMENTAL AFFIDAVITS WERE SUBMITTED TO
THE COURT OF APPEALS DOCUMENTING THE DEGREE TO WHICH THE SYSTEM HAS
UNDERGONE A LOSS OF STUDENTS SINCE THE UNITARY SCHOOL PLAN TOOK EFFECT
IN THE FALL OF 1970.  /5/  BUT WHILE THIS DEVELOPMENT MAY BE CAUSE FOR
DEEP CONCERN TO THE RESPONDENTS, IT CANNOT, AS THE COURT OF APPEALS
RECOGNIZED, BE ACCEPTED AS A REASON FOR ACHIEVING ANYTHING LESS THAN
COMPLETE UPROOTING OF THE DUAL PUBLIC SCHOOL SYSTEM.  SEE MONROE V.
BOARD OF COMMISSIONERS, 391 U.S. 450, 459. 

              REVERSED. 

/0/  TOGETHER WITH NO. 70-187, COTTON ET AL. V. SCOTLAND NECK CITY
BOARD OF EDUCATION ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  AN EARLIER BILL HAD BEEN INTRODUCED IN THE 1965 SESSION OF THE
LEGISLATURE, WHICH WOULD HAVE CREATED A SEPARATE SCHOOL DISTRICT FOR
SCOTLAND NECK AND THE FOUR SURROUNDING TOWNSHIPS, AN AREA WITH A THREE
TO-ONE NEGRO MAJORITY.  IT WAS CONTEMPLATED THAT THE NEW DISTRICT WOULD
OPERATE UNDER A FREEDOM-OF-CHOICE PLAN SIMILAR TO THAT EXISTING IN THE
COUNTY AT THE TIME.  THE BILL WAS DEFEATED IN THE STATE SENATE. 

/2/  THE VOTE IN THE REFERENDUM WAS 813 TO 332 IN FAVOR OF THE NEW
SCHOOL DISTRICT.  OF SCOTLAND NECK'S 1,382 REGISTERED VOTERS, 360 WERE
NEGRO. 

/3/  AFTER THE PRELIMINARY INJUNCTION WAS ISSUED IN THIS CASE, THE
DISTRICT COURT DISMISSED THE HALIFAX COUNTY BOARD OF EDUCATION FROM
THAT PART OF THE CASE DEALING WITH SCOTLAND NECK'S EFFORTS TO IMPLEMENT
A SEPARATE SCHOOL SYSTEM.  ON MAY 19, 1970, THE COURT ORDERED THE
COUNTY SCHOOL BOARD TO IMPLEMENT, BEGINNING IN THE FALL OF 1970, THE
INTERIM PLAN PROPOSED BY THE STATE DEPARTMENT OF PUBLIC INSTRUCTION,
WITH CERTAIN MODIFICATIONS PROPOSED BY THE BOARD. 

/4/  THE OPINION OF THE DISTRICT COURT ON THE ISSUANCE OF THE
PRELIMINARY INJUNCTION IS UNREPORTED. 

/5/  THE FIGURES SUPPLIED TO THE COURT OF APPEALS WERE UPDATED BY AN
AFFIDAVIT SUBMITTED TO THIS COURT, SHOWING THE TOTAL ENROLLMENT IN THE
HALIFAX COUNTY SCHOOLS AT THE START OF THE 1971-1972 SCHOOL YEAR TO
HAVE BEEN 9,094, OF WHOM 14% WERE WHITE. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN, MR.
JUSTICE POWELL, AND MR. JUSTICE REHNQUIST JOIN, CONCURRING IN THE
RESULT. 

I AGREE THAT THE CREATION OF A SEPARATE SCHOOL SYSTEM IN SCOTLAND
NECK WOULD TEND TO UNDERMINE DESEGREGATION EFFORTS IN HALIFAX
COUNTY,AND I THUS JOIN IN THE RESULT REACHED BY THE COURT.  HOWEVER,
SINCE I DISSENTED FROM THE COURT'S DECISION IN WRIGHT V. COUNCIL OF
CITY OF EMPORIA, ANTE, P. 471, I FEEL CONSTRAINED TO SET FORTH BRIEFLY
THE REASONS WHY I DISTINGUISH THE CASES. 

FIRST, THE OPERATION OF A SEPARATE SCHOOL SYSTEM IN SCOTLAND NECK
WOULD PRECLUDE MEANINGFUL DESEGREGATION IN THE SOUTHEASTERN PORTION OF
HALIFAX COUNTY.  IF SCOTLAND NECK WERE PERMITTED TO OPERATE SEPARATE
SCHOOLS, MORE THAN 2,200 OF THE NEARLY 3,000 STUDENTS IN THIS SECTOR
WOULD ATTEND VIRTUALLY ALL-NEGRO SCHOOLS LOCATED JUST OUTSIDE OF THE
CORPORATE LIMITS OF SCOTLAND NECK.  THE SCHOOLS LOCATED WITHIN SCOTLAND
NECK WOULD BE PREDOMINANTLY WHITE.  FURTHER SHIFTS COULD REASONABLY BE
ANTICIPATED.  IN A VERY REAL SENSE, THE CHILDREN RESIDING IN THIS
RELATIVELY SMALL AREA WOULD CONTINUE TO ATTEND "NEGRO SCHOOLS" AND
"WHITE SCHOOLS."  THE EFFECT OF THE WITHDRAWAL WOULD THUS BE
DRAMATICALLY DIFFERENT FROM THE EFFECT WHICH COULD BE ANTICIPATED IN
EMPORIA.     SECOND, SCOTLAND NECK'S ACTION CANNOT BE SEEN AS THE
FULFILLMENT OF ITS DESTINY AS AN INDEPENDENT GOVERNMENTAL ENTITY. 
SCOTLAND NECK HAD BEEN A PART OF THE COUNTY-WIDE SCHOOL SYSTEM FOR MANY
YEARS; SPECIAL LEGISLATION HAD TO BE PUSHED THROUGH THE NORTH CAROLINA
GENERAL ASSEMBLY TO ENABLE SCOTLAND NECK TO OPERATE ITS OWN SCHOOL
SYSTEM.  THE MOVEMENT TOWARD THE CREATION OF A SEPARATE SCHOOL SYSTEM
IN SCOTLAND NECK WAS PROMPTED SOLELY BY THE LIKELIHOOD OF DESEGREGATION
IN THE COUNTY, NOT BY ANY CHANGE IN THE POLITICAL STATUS OF THE
MUNICIPALITY.  SCOTLAND NECK WAS AND IS A PART OF HALIFAX COUNTY.  THE
CITY OF EMPORIA, BY CONTRAST, IS TOTALLY INDEPENDENT FROM GREENSVILLE
COUNTY; EMPORIA'S ONLY TIES TO THE COUNTY ARE CONTRACTUAL.  WHEN
EMPORIA BECAME A CITY, A STATUS DERIVED PURSUANT TO LONGSTANDING
STATUTORY PROCEDURES, IT TOOK ON THE LEGAL RESPONSIBILITY OF PROVIDING
FOR THE EDUCATION OF ITS CHILDREN AND WAS NO LONGER ENTITLED TO AVAIL
ITSELF OF THE COUNTY SCHOOL FACILITIES. 

THIRD, THE DISTRICT COURT FOUND, AND IT IS UNDISPUTED, THAT THE
SCOTLAND NECK SEVERANCE WAS SUBSTANTIALLY MOTIVATED BY THE DESIRE TO
CREATE A PREDOMINANTLY WHITE SYSTEM MORE ACCEPTABLE TO THE WHITE
PARENTS OF SCOTLAND NECK.  IN OTHER WORDS, THE NEW SYSTEM WAS DESIGNED
TO MINIMIZE THE NUMBER OF NEGRO CHILDREN ATTENDING SCHOOL WITH THE
WHITE CHILDREN RESIDING IN SCOTLAND NECK.  NO SIMILAR FINDING WAS MADE
BY THE DISTRICT COURT IN EMPORIA, AND THE RECORD SHOWS THAT EMPORIA'S
DECISION WAS NOT BASED ON THE PROJECTED RACIAL COMPOSITION OF THE
PROPOSED NEW SYSTEM. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR PETITIONER IN
NO. 70-130.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL NORMAN, AND BRIAN K. LANDSBERG.  ADAM STEIN
ARGUED THE CAUSE FOR PETITIONERS IN NO. 70-187.  WITH HIM ON THE BRIEF
WERE JACK GREENBERG, JAMES M. NABRIT III, NORMAN J. CHACHKIN, J.
LEVONNE CHAMBERS, JAMES R. WALKER, JR., AND SAMUEL S. MITCHELL. 

C. KITCHIN JOSEY AND WILLIAM T. JOYNER ARGUED THE CAUSE FOR
RESPONDENTS IN BOTH CASES.  WITH THEM ON THE BRIEF WERE ROBERT MORGAN,
ATTORNEY GENERAL OF NORTH CAROLINA, AND RALPH MOODY, DEPUTY ATTORNEY
GENERAL. 
..END :







PETERS V. KIFF, 407 U.S. 493 


       PETERS V. KIFF, WARDEN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 71-5078.  ARGUED FEBRUARY 22, 1972-- DECIDED JUNE 22,

           1972 


PETITIONER CONTENDS IN THIS HABEAS CORPUS PROCEEDING THAT THE
SYSTEMATIC EXCLUSION OF NEGROES FROM THE GRAND JURY THAT INDICTED HIM
AND THE PETIT JURY THAT CONVICTED HIM DEPRIVED HIM OF HIS RIGHTS TO DUE
PROCESS AND EQUAL PROTECTION.  THE COURT OF APPEALS AFFIRMED THE
DISTRICT COURT'S DENIAL OF RELIEF ON THE GROUND THAT PETITIONER, NOT
BEING A NEGRO, SUFFERED NO UNCONSTITUTIONAL DISCRIMINATION.  HELD:  THE
JUDGMENT IS REVERSED.  PP. 495-507. 

441 F.2D 370, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL, JOINED BY MR. JUSTICE DOUGLAS AND MR. JUSTICE
STEWART, CONCLUDED THAT: 

1.  PETITIONER, UNDER THE CIRCUMSTANCES OF THIS CASE, HAS NOT
ABANDONED HIS CHALLENGE TO THE PETIT JURY BY FAILING TO INCLUDE IT IN
THE LIST OF QUESTIONS PRESENTED BY THE WRIT OF CERTIORARI.  PP. 495
496. 

2.  A STATE CANNOT, CONSISTENT WITH DUE PROCESS, SUBJECT A DEFENDANT
TO INDICTMENT BY A GRAND JURY OR TRIAL BY A PETIT JURY THAT HAS BEEN
SELECTED IN AN ARBITRARY AND DISCRIMINATORY MANNER CONTRARY TO FEDERAL
CONSTITUTIONAL AND STATUTORY REQUIREMENTS, AND REGARDLESS OF ANY
SHOWING OF ACTUAL BIAS, PETITIONER HAD STANDING TO ATTACK THE
SYSTEMATIC EXCLUSION OF NEGROES FROM GRAND JURY AND PETIT JURY
SERVICE.  PP. 496-505. 

MR. JUSTICE WHITE, JOINED BY MR. JUSTICE BRENNAN AND MR. JUSTICE
POWELL, WOULD IMPLEMENT THE LONGSTANDING AND STRONG POLICY OF 18 U.S.C.
243 AGAINST EXCLUDING QUALIFIED JURORS ON ACCOUNT OF RACE BY PERMITTING
PETITIONER TO CHALLENGE HIS CONVICTION ON THE GROUND THAT NEGROES WERE
ARBITRARILY EXCLUDED FROM THE GRAND JURY THAT INDICTED HIM.  HILL V.
TEXAS, 316 U.S. 400.  PP. 505-507. 

MARSHALL, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION, IN WHICH DOUGLAS AND STEWART, JJ., JOINED.  WHITE, J., FILED
AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH BRENNAN AND POWELL,
JJ., JOINED, POST, P. 505.  BURGER, C.J., FILED A DISSENTING OPINION,
IN WHICH BLACKMUN AND REHNQUIST, JJ., JOINED, POST, P. 507. 

MR. JUSTICE MARSHALL ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE DOUGLAS AND MR. JUSTICE STEWART JOIN. 

PETITIONER ALLEGES THAT NEGROES WERE SYSTEMATICALLY EXCLUDED FROM
THE GRAND JURY THAT INDICTED HIM AND THE PETIT JURY THAT CONVICTED HIM
OF BURGLARY IN THE SUPERIOR COURT OF MUSCOGEE COUNTY, GEORGIA.  IN
CONSEQUENCE HE CONTENDS THAT HIS CONVICTION IS INVALID UNDER THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT. 
BECAUSE HE IS NOT HIMSELF A NEGRO, THE RESPONDENT CONTENDS THAT HE HAS
NOT SUFFERED ANY UNCONSTITUTIONAL DISCRIMINATION, AND THAT HIS
CONVICTION MUST STAND.  ON THAT GROUND, THE COURT OF APPEALS AFFIRMED
THE DENIAL OF HIS PETITION FOR FEDERAL HABEAS CORPUS.  441 F.2D 370
(CA5 1971).  /1/  WE GRANTED CERTIORARI.  404 U.S. 964 (1971).  WE
REVERSE. 

        I 

AT THE OUTSET, WE REJECT THE CONTENTION THAT THE ONLY ISSUE BEFORE
THIS COURT IS PETITIONER'S CHALLENGE TO THE COMPOSITION OF THE GRAND
JURY THAT INDICTED HIM.  THE RESPONDENT ARGUES THAT THE CHALLENGE TO
THE PETIT JURY IS NOT BEFORE US, BECAUSE IT FAILS TO APPEAR IN THE LIST
OF QUESTIONS PRESENTED BY THE PETITION FOR CERTIORARI.  WE DO NOT
REGARD THAT OMISSION AS CONTROLLING, HOWEVER, IN LIGHT OF THE FACT THAT
THE TWO CLAIMS HAVE BEEN TREATED TOGETHER AT EVERY STAGE OF THE
PROCEEDINGS BELOW, THEY ARE TREATED TOGETHER IN THE BODY OF THE
PETITION FOR CERTIORARI, AND THEY ARE TREATED TOGETHER IN THE BRIEF
FILED BY PETITIONER ON THE MERITS IN THIS COURT.  PETITIONER CANNOT
FAIRLY BE SAID TO HAVE ABANDONED HIS CHALLEGNE TO THE PETIT JURY, AND
THE STATE HAS HAD AMPLE OPPORTUNITY TO RESPOND TO THAT CHALLENGE,
HAVING DONE SO AT LENGTH BELOW.  /2/ 

MOREOVER, IN THIS CASE THE PRINCIPLES GOVERNING THE TWO CLAIMS ARE
IDENTICAL.  FIRST, IT APPEARS THAT THE SAME SELECTION PROCESS WAS USED
FOR BOTH THE GRAND JURY AND THE PETIT JURY.  /3/  CONSEQUENTLY, THE
QUESTION WHETHER JURORS WERE IN FACT EXCLUDED ON THE BASIS OF RACE WILL
BE ANSWERED THE SAME WAY FOR BOTH TRIBUNALS.  SECOND, BOTH THE GRAND
JURY AND THE PETIT JURY IN THIS CASE MUST BE MEASURED SOLELY BY THE
GENERAL FOURTEENTH AMENDMENT GUARANTEES OF DUE PROCESS AND EQUAL
PROTECTION, AND NOT BY THE SPECIFIC CONSTITUTIONAL PROVISIONS FOR THE
GRAND JURY AND THE PETIT JURY.  FOR THE FIFTH AMENDMENT RIGHT TO A
GRAND JURY DOES NOT APPLY IN A STATE PROSECUTION.  HURTADO V.
CALIFORNIA, 110 U.S. 516 (1884).  AND THE SIXTH AMENDMENT RIGHT TO A
PETIT JURY, MADE APPLICABLE TO THE STATES THROUGH THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT IN DUNCAN V. LOUISIANA, 391 U.S. 145
(1968), DOES NOT APPLY TO STATE DRIALS THAT TOOK PLACE BEFORE THE
DECISION IN DUNCAN, AS PETITIONER'S TRIAL DID.  DESTEFANO V. WOODS, 392
U.S. 631 (1968).  ACCORDINGLY, WE TURN NOW TO THE COMMANDS OF EQUAL
PROTECTION AND OF DUE PROCESS. 

    II 

THIS COURT HAS NEVER BEFORE CONSIDERED A WHITE DEFENDANT'S CHALLENGE
TO THE EXCLUSION OF NEGROES FROM JURY SERVICE.  /4/  THE ESSENCE OF
PETITIONER'S CLAIM IS THIS:  THAT THE TRIBUNALS THAT INDICTED AND
CONVICTED HIM WERE CONSTITUTED IN A MANNER THAT IS PROHIBITED BY THE
CONSTITION AND BY STATUTE; THAT THE IMPACT OF THAT ERROR ON ANY
INDIVIDUAL TRIAL IS UNASCERTAINABLE; AND THAT CONSEQUENTLY ANY
INDICTMENT OR CONVICTION RETURNED BY SUCH TRIBUNALS MUST BE SET ASIDE. 
/5/ 

THERE CAN BE NO DOUBT THAT, IF PETITIONER'S ALLEGATIONS ARE TRUE,
BOTH TRIBUNALS INVOLVED IN THIS CASE WERE ILLEGALLY CONSTITUTED.  HE
ALLEGES THAT NEGROES WERE SYSTEMATICALLY EXCLUDED FROM BOTH THE GRAND
JURY AND THE PETIT JURY.  THIS COURT HAS REPEATEDLY HELD THAT THE
CONSTITUTION PROHIBITS SUCH SELECTION PRACTICES, WITH RESPECT TO THE
GRAND JURY, /6/  THE PETIT JURY, /7/  OR BOTH.  /8/  MOREOVER, CONGRESS
HAS MADE IT A CRIME FOR A PUBLIC OFFICIAL TO EXCLUDE ANYONE FROM A
GRAND OR PETIT JURY ON THE BASIS OF RACE, 18 U.S.C. 243, AND THIS COURT
UPHELD THE STATUTE, APPROVING THE CONGRESSIONAL DETERMINATION THAT SUCH
EXCLUSION WOULD VIOLATE THE EXPRESS PROHIBITIONS OF THE EQUAL
PROTECTION CLAUSE.  EX PARTE VIRGINIA, 100 U.S. 339 (1880).  THE CRIME,
AND THE UNCONSTITUTIONAL STATE ACTION, OCCUR WHETHER THE DEFENDANT IS
WHITE OR NEGRO, WHETHER HE IS ACQUITTED OR CONVICTED.  IN SHORT, WHEN A
GRAND OR PETIT JURY HAS BEEN SELECTED ON AN IMPERMISSIBLE BASIS, THE
EXISTENCE OF A CONSTITUTIONAL VIOLATION DOES NOT DEPEND ON THE
CIRCUMSTANCES OF THE PERSON MAKING THE CLAIM. 

IT IS A SEPARATE QUESTION, HOWEVER, WHETHER PETITIONER IS ENTITLED
TO THE RELIEF HE SEEKS ON THE BASIS OF THAT CONSTITUTIONAL VIOLATION. 
RESPONDENT ARGUES THAT EVEN IF THE GRAND AND PETIT JURIES WERE
UNCONSTITUTIONALLY SELECTED, PETITIONER IS NOT ENTITLED TO RELIEF ON
THAT ACCOUNT BECAUSE HE HAS NOW SHOWN HOW HE WAS HARMED BY THE ERROR. 
IT IS ARGUED THAT A NEGRO DEFENDANT'S RIGHT TO CHALLENGE THE EXCLUSION
OF NEGROES FROM JURY SERVICE RESTS ON A PRESUMPTION THAT A JURY SO
CONSTITUTED WILL BE PREJUDICED AGAINST HIM; THAT NO SUCH PRESUMPTION IS
AVAILABLE TO A WHITE DEFENDANT; AND CONSEQUENTLY THAT A WHITE DEFENDANT
MUST INTRODUCE AFFIRMATIVE EVIDENCE OF ACTUAL HARM IN ORDER TO
ESTABLISH A BASIS FOR RELIEF. 

THAT ARGUMENT TAKES TOO NARROW A VIEW OF THE KINDS OF HARM THAT FLOW
FROM DISCRIMINATION IN JURY SELECTION.  THE EXCLUSION OF NEGROES FROM
JURY SERVICE, LIKE THE ARBITRARY EXCLUSION OF ANY OTHER WELL-DEFINED
CLASS OF CITIZENS, OFFENDS A NUMBER OF RELATED CONSTITUTIONAL VALUES. 

IN STRAUDER V. WEST VIRGINIA, 100 J.S. 303, 308-309 (1880), THIS
COURT CONSIDERED THE QUESTION FROM THE POINT OF VIEW OF THE NEGRO
DEFENDANT'S RIGHT TO EQUAL PROTECTION OF THE LAWS.  STRAUDER WAS PART
OF A LANDMARK TRILOGY OF CASES, IN WHICH THIS COURT FIRST DEALT WITH
THE PROBLEM OF RACIAL DISCRIMINATION IN JURY SELECTION.  IN STRAUDER
ITSELF, A NEGRO DEFENDANT SOUGHT TO REMOVE HIS CRIMINAL TRIAL TO THE
FEDERAL COURTS, PURSUANT TO STATUTE, ON THE GROUND THAT NEGROES WERE
EXCLUDED BY LAW FROM THE GRAND AND PETIT JURIES IN THE STATE COURTS;
THE COURT UPHELD HIS CLAIM.  IN VIRGINIA V. RIVES, 100 U.S. 313 (1880),
A NEGRO DEFENDANT SOUGHT REMOVAL ON THE GROUND THAT THERE WERE IN FACT
NO NEGROES IN THE VENIRE FROM WHICH HIS JURY WAS DRAWN; THE COURT HELD
THAT, WITHOUT MORE, HIS CLAIM DID NOT COME WITHIN THE PRECISE TERMS OF
THE REMOVAL STATUTE.  FINALLY, IN EX PARTE VIRGINIA, 100 U.S. 339
(1880), A STATE JUDGE CHALLENGED THE STATUTE UNDER WHICH HE WAS
CONVICTED FOR THE FEDERAL CRIME OF EXCLUDING NEGROES FROM STATE GRAND
AND PETIT JURIES; THE COURT UPHELD THE STATUTE AS A VALID MEANS OF
ENFORCING THE EQUAL PROTECTION CLAUSE.  BECAUSE EACH OF THESE THREE
CASES WAS AMENABLE TO DECISION ON THE NARROW BASIS OF AN ANALYSIS OF
THE NEGRO DEFENDANT'S RIGHT TO EQUAL PROTECTION, THE COURT BROUGHT ALL
THREE UNDER THAT SINGLE ANALYTICAL UMBRELLA. 

BUT EVEN IN 1880 THE COURT RECOGNIZED THAT OTHER CONSTITUTIONAL
VALUES WERE IMPLICATED.  IN STRAUDER, THE COURT OBSERVED THAT THE
EXCLUSION OF NEGROES FROM JURY SERVICE INJURES NOT ONLY DEFENDANTS, BUT
ALSO OTHER MEMBERS OF THE EXCLUDED CLASS:  IT DENIES THE CLASS OF
POTENTIAL JURORS THE "PRIVILEGE OF PARTICIPATING EQUALLY . . . IN THE
ADMINISTRATION OF JUSTICE," 100 U.S.,AT 308, AND IT STIGMATIZES THE
WHOLE CLASS, EVEN THOSE WHO DO NOT WISH TO PARTICIPATE, BY DECLARING
THEM UNFIT FOR JURY SERVICE AND THEREBY PUTTING "A BRAND UPON THEM,
AFFIXED BY LAW, AN ASSERTION OF THEIR INFERIORITY."  IBID.  IT IS NOW
CLEAR THAT INJUNCTIVE RELIEF IS AVAILABLE TO VINDICATE THESE INTERESTS
OF THE EXCLUDED JURORS AND THE STIGMATIZED CLASS.  CARTER V. JURY
COMMISSION OF GREENE COUNTY, 396 U.S. 320 (1970); TURNER V. FOUCHE, 396
U.S. 346 (1970); WHITE V. CROOK, 251 F.SUPP.  401 (MD ALA. 1966). 

MOREOVER, THE COURT HAS ALSO RECOGNIZED THAT THE EXCLUSION OF A
DISCERNIBLE CLASS FROM JURY SERVICE INJURES NOT ONLY THOSE DEFENDANTS
WHO BELONG TO THE EXCLUDED CLASS, BUT OTHER DEFENDANTS AS WELL, IN THAT
IT DESTROYS THE POSSIBILITY THAT THE JURY WILL REFLECT A REPRESENTATIVE
CROSS SECTION OF THE COMMUNITY.  IN WILLIAMS V. FLORIDA, 399 U.S. 78
(1970), WE SOUGHT TO DELINEATE SOME OF THE ESSENTIAL FEATURES OF THE
JURY THAT IS GUARANTEED, IN CERTAIN CIRCUMSTANCES, BY THE SIXTH
AMENDMENT.  WE CONCLUDED THAT IT COMPREHENDS, INTER ALIA, "A FAIR
POSSIBILITY FOR OBTAINING A REPRESENTATIVE CROSS-SECTION OF THE
COMMUNITY."  399 U.S.,AT 100.  /9/  THUS IF THE SIXTH AMENDMENT WERE
APPLICABLE HERE, AND PETITIONER WERE CHALLENGING A POST-DUNCAN PETIT
JURY, HE WOULD CLEARLY HAVE STANDING TO CHALLENGE THE SYSTEMATIC
EXCLUSION OF ANY INDENTIFIABLE GROUP FROM JURY SERVICE.  /10/ 

THE PRECISE QUESTION IN THIS CASE, THEN, IS WHETHER A STATE MAY
SUBJECT A DEFENDANT TO INDICTMENT AND TRIAL BY GRAND AND PETIT JURIES
THAT ARE PLAINLY ILLEGAL IN THEIR COMPOSITION, AND LEAVE THE DEFENDANT
WITHOUT RECOURSE ON THE GROUND THAT HE HAD IN ANY EVENT NO RIGHT TO A
GRAND OR PETIT JURY AT ALL.  WE CONLCUDE, FOR REASONS THAT FOLLOW, THAT
TO DO SO DENIES THE DEFENDANT DUE PROCESS OF LAW. 

       III 

"A FAIR TRIAL IN A FAIR TRIBUNAL IS A BASIC REQUIREMENT OF DUE
PROCESS."  IN RE MURCHISON, 349 U.S. 133, 136 (1955).  THE DUE PROCESS
RIGHT TO A COMPETENT AND IMPARTIAL TRIBUNAL IS QUITE SEPARATE FROM THE
RIGHT TO ANY PARTICULAR FORM OF PROCEEDING.  DUE PROCESS REQUIRES A
COMPETENT AND IMPARTIAL TRIBUNAL IN ADMINISTRATIVE HEARINGS, GOLDBERG
V. KELLY, 397 U.S. 254, 271 (1970), AND IN TRIALS TO A JUDGE, TUMEY V.
OHIO, 273 U.S. 510 (1927).  SIMILARLY, IF A STATE CHOOSES, QUITE APART
FROM CONSTITUTIONAL COMPULSION, TO USE A GRAND OR PETIT JURY, DUE
PROCESS IMPOSES LIMITATIONS ON THE COMPOSITION OF THAT JURY. 

LONG BEFORE THIS COURT HELD THAT THE CONSTITUTION IMPOSES THE
REQUIREMENT OF JURY TRIAL ON THE STATES, IT WAS WELL ESTABLISHED THAT
THE DUE PROCESS CLAUSE PROTECTS A DEFENDANT FROM JURORS WHO ARE
ACTUALLY INCAPABLE OF RENDERING AN IMPARTIAL VERDICT, BASED ON THE
EVIDENCE AND THE LAW.  THUS A DEFENDANT CANNOT, CONSISTENT WITH DUE
PROCESS, BE SUBJECTED TO TRIAL BY AN INSANE JUROR, JORDAN V.
MASSACHUSETTS, 225 U.S. 167, 176 (1912), BY JURORS WHO ARE INTIMIDATED
BY THE THREAT OF MOB VIOLENCE, MOORE V. DEMPSEY, 261 U.S. 86 (1923), OR
BY JURORS WHO HAVE FORMED A FIXED OPINION ABOUT THE CASE FROM NEWSPAPER
PUBLICITY, IRVIN V. DOWD, 366 U.S. 717 (1961). 

MOREOVER, EVEN IF THERE IS NO SHOWING OF ACTUAL BIAS IN THE
TRIBUNAL, THIS COURT HAS HELD THAT DUE PROCESS IS DENIED BY
CIRCUMSTANCES THAT CREATE THE LIKELIHOOD OR THE APPEARANCE OF BIAS. 
THIS RULE, TOO, WAS WELL ESTABLISHED LONG BEFORE THE RIGHT TO JURY
TRIAL WAS MADE APPLICABLE IN STATE TRIALS, AND DOES NOT DEPEND ON IT.
THUS IT HAS BEEN INVOKED IN TRIALS TO A JUDGE, E.G., TUMEY V. OHIO, 273
U.S. 510 (1927); IN RE MURCHISON, 349 U.S. 133 (1955); AND IN PRE
DUNCAN STATE JURY TRIALS, E.G., TURNER V. LOUISIANA, 379 U.S. 466
(1965); ESTES V. TEXAS, 381 U.S. 532, 550 (1965).  IN TUMEY V. OHIO,
SUPRA, THIS COURT HELD THAT A JUDGE COULD NOT, CONSISTENT WITH DUE
PROCESS, TRY A CASE WHEN HE HAD A FINANCIAL STAKE IN THE OUTCOME,
NOTWITHSTANDING THE POSSIBILITY THAT HE MIGHT RESIST THE TEMPTATION TO
BE INFLUENCED BY THAT INTEREST.  AND IN TURNER V. LOUISIANA, SUPRA, THE
COURT HELD THAT A JURY COULD NOT, CONSISTENT WITH DUE PROCESS, TRY A
CASE AFTER IT HAD BEEN PLACED IN THE PROTECTIVE CUSTODY OF THE
PRINCIPAL PROSECUTION WITNESSES, NOTWITHSTANDING THE POSSIBILITY THAT
THE JURORS MIGHT NOT BE INFLUENCED BY THE ASSOCIATION.  AS THIS COURT
SAID IN IN RE MURCHISON, SUPRA, "(FAIRNESS OF COURSE REQUIRES AN
ABSENCE OF ACTUAL BIAS IN THE TRIAL OF CASES.  BUT OUR SYSTEM OF LAW
HAS ALWAYS ENDEAVORED TO PREVENT EVEN THE PROBABILITY OF UNFAIRNESS." 
349 U.S.,AT 136. 

THESE PRINCIPLES COMPEL THE CONCLUSION THAT A STATE CANNOT,
CONSISTENT WITH DUE PROCESS, SUBJECT A DEFENDANT TO INDICTMENT OR TRIAL
BY A JURY THAT HAS BEEN SELECTED IN AN ARBITRARY AND DISCRIMINATORY
MANNER, IN VIOLATION OF THE CONSTITUTION AND LAWS OF THE UNITED
STATES.  ILLEGAL AND UNCONSTITUTIONAL JURY SELECTION PROCEDURES CAST
DOUBT ON THE INTEGRITY OF THE WHOLE JUDICIAL PROCESS.  THEY CREATE THE
APPEARANCE OF BIAS IN THE DECISION OF INDIVIDUAL CASES, AND THEY
INCREASE THE RISK OF ACTUAL BIAS AS WELL. 

IF IT WERE POSSIBLE TO SAY WITH CONFIDENCE THAT THE RISK OF BIAS
RESULTING FROM THE ARBITRARY ACTION INVOLVED HERE IS CONFINED TO CASES
INVOLVING NEGRO DEFENDANTS, /11/  THEN PERHAPS THE RIGHT TO CHALLENGE
THE TRIBUNAL ON THAT GROUND COULD BE SIMILARLY CONFINED.  THE CASE OF
THE WHITE DEFENDANT MIGHT THEN BE THOUGHT TO PRESENT A SPECIES OF
HARMLESS ERROR. 

BUT THE EXCLUSION FROM JURY SERVICE OF A SUBSTANTIAL AND
IDENTIFIABLE CLASS OF CITIZENS HAS A POTENTIAL IMPACT THAT IS TOO
SUBTLE AND TOO PERVASIVE TO ADMIT OF CONFINEMENT TO PARTICULAR ISSUES
OR PARTICULAR CASES.  FIRST, IF WE ASSUME THAT THE EXCLUSION OF NEGROES
AFFECTS THE FAIRNESS OF THE JURY ONLY WITH RESPECT TO ISSUES PRESENTING
A CLEAR OPPORTUNITY FOR THE OPERATION OF RACE PREJUDICE, THAT
ASSUMPTION DOES NOT PROVIDE A WORKABLE GUIDE FOR DECISION IN PARTICULAR
CASES.  FOR THE OPPORTUNITY TO APPEAL TO RACE PREJUDICE IS LATENT IN A
VAST RANGE OF ISSUES, CUTTING ACROSS THE ENTIRE FABRIC OF OUR SOCIETY. 
MOREOVER, WE ARE UNWILLING TO MAKE THE ASSUMPTION THAT THE EXCLUSION
OF NEGROES HAS RELEVANCE ONLY FOR ISSUES INVOLVING RACE.  WHEN ANY
LARGE AND IDENTIFIABLE SEGMENT OF THE COMMUNITY IS EXCLUDED FROM JURY
SERVICE, THE EFFECT IS TO REMOVE FROM THE JURY ROOM QUALITIES OF HUMAN
NATURE AND VARIETIES OF HUMAN EXPERIENCE, THE RANGE OF WHICH IS UNKNOWN
AND PERHAPS UNKNOWABLE.  IT IS NOT NECESSARY TO ASSUME THAT THE
EXCLUDED GROUP WILL CONSISTENTLY VOTE AS A CLASS IN ORDER TO CONCLUDE,
AS WE DO, THAT ITS EXCLUSION DEPRIVES THE JURY OF A PERSPECTIVE ON
HUMAN EVENTS THAT MAY HAVE UNSUSPECTED IMPORTANCE IN ANY CASE THAT MAY
BE PRESENTED.  /12/ 

IT IS IN THE NATURE OF THE PRACTICES HERE CHALLENGED THAT PROOF OF
ACTUAL HARM, OR LACK OF HARM, IS VIRTUALLY IMPOSSIBLE TO ADDUCE.  FOR
THERE IS NO WAY TO DETERMINE WHAT JURY WOULD HAVE BEEN SELECTED UNDER A
CONSTITUTIONALLY VALID SELECTION SYSTEM, OR HOW THAT JURY WOULD HAVE
DECIDED THE CASE.  CONSEQUENTLY, IT IS NCESSARY TO DECIDE ON PRINCIPLE
WHICH SIDE SHALL SUFFER THE CONSEQUENCES OF UNAVOIDABLE UNCERTAINTY. 
SEE SPEISER V. RANDALL, 357 U.S. 513, 525-526 (1958); IN RE WINSHIP,
397 U.S. 358, 370-373 (1970) (HARLAN, J., CONCURRING).  IN LIGHT OF THE
GREAT POTENTIAL FOR HARM LATENT IN AN UNCONSTITUTIONAL JURY-SELECTION
SYSTEM, /13/  AND THE STRONG INTEREST OF THE CRIMINAL DEFENDANT IN
AVOIDING THAT HARM, ANY DOUBT SHOULD BE RESOLVED IN FAVOR OF GIVING THE
OPPORTUNITY FOR CHALLENGING THE JURY TO TOO MANY DEFENDANTS, RATHER
THAN GIVING IT TO TOO FEW. 

ACCORDINGLY, WE HOLD THAT, WHATEVER HIS RACE, A CRIMINAL DEFENDANT
HAS STANDING TO CHALLENGE THE SYSTEM USED TO SELECT HIS GRAND OR PETIT
JURY, ON THE GROUND THAT IT ARBITRARILY EXCLUDES FROM SERVICE THE
MEMBERS OF ANY RACE, AND THEREBY DENIES HIM DUE PROCESS OF LAW.  THIS
CERTAINLY IS TRUE IN THIS CASE, WHERE THE CLAIM IS THAT NEGROES WERE
SYSTEMATICALLY EXCLUDED FROM JURY SERVICE.  FOR CONGRESS HAS MADE SUCH
EXCLUSION A CRIME.  18 U.S.C. 243. 

        IV 

HAVING RESOLVED THE QUESTION OF STANDING, WE TURN BRIEFLY TO THE
FURTHER DISPOSITION OF THIS CASE.  THERE IS, OF COURSE, NO QUESTION
HERE OF JUSTIFYING THE SYSTEM UNDER ATTACK.  FOR WHATEVER MAY BE THE
LAW WITH REGARD TO OTHER EXCLUSIONS FROM JURY SERVICE, IT IS CLEAR
BEYOND ALL DOUBT THAT THE EXCLUSION OF NEGROES CANNOT PASS
CONSTITUTIONAL MUSTER.  ACCORDINGLY, IF PETITIONER'S ALLEGATIONS ARE
CORRECT, AND NEGROES WERE SYSTEMATICALLY EXCLUDED FROM HIS GRAND AND
PETIT JURIES, THEN HE WAS INDICTED AND CONVICTED BY TRIBUNALS THAT FAIL
TO SATISFY THE ELEMENTARY REQUIREMENTS OF DUE PROCESS, AND NEITHER THE
INDICTMENT NOR THE CONVICTION CAN STAND.  SINCE HE WAS PRECLUDED FROM
PROVING THE FACTS ALLEGED IN SUPPORT OF HIS CLAIM, THE JUDGMENT MUST BE
REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

        REVERSED AND REMANDED. 

/1/  THE HISTORY OF THIS LITIGATION IS LONG AND COMPLICATED. 
PETITIONER WAS INDICTED ON JUNE 6, 1966.  HIS FIRST TRIAL RESULTED IN A
CONVICTION THAT WAS REVERSED ON FOURTH AMENDMENT GROUNDS, 114 GA.APP. 
595, 162 S.E.2D 647 (1966).  A SECOND TRIAL, HELD ON DECEMBER 8, 1966,
RESULTED IN THE CONVICTION CHALLENGED HERE, WHICH WAS AFFIRMED, 115
GA.APP.  743, 156 S.E.2D 195 (1967).  PETITIONER FOR THE FIRST TIME
RAISED THE CLAIM OF DISCRIMINATORY JURY SELECTION IN A PETITION FOR
FEDERAL HABEAS CORPUS, WHICH WAS SUMMARILY DENIED ON JULY 5, 1967.  THE
COURT OF APPEALS AFFIRMED ON THE GROUND THAT PETITIONER HAD FAILED TO
EXHAUST THEN-AVAILABLE STATE REMEDIES WITH RESPECT TO HIS OTHERWISE
HIGHLY COLORABLE CLAIM, 397 F.2D 731, 735-741 (CA5 1968).  PETITIONER
THEN FILED A SECOND PETITION FOR FEDERAL HABEAS CORPUS ON THE SAME
GROUND, ALLEGING THAT INTERVENING STATE COURT DECISIONS CLEARLY
FORECLOSED HIS CLAIM IN THE STATE COURTS.  THAT PETITION WAS DENIED ON
THE GROUNDS (1) THAT IT WAS REPETITIOUS, (2) THAT PETITIONER HAD FAILED
TO EXHAUST, AND (3) THAT HIS CLAIMS WERE LACKING IN MERIT.  APP. 15. 
THE COURT OF APPEALS AGAIN AFFIRMED, REJECTING THE FIRST TWO GROUNDS
AND RESTING ENTIRELY ON THE THIRD, I.E., REJECTING PETITIONER'S
SUBSTANTIVE CLAIMS.  441 F.2D 370 (1971).  THE EXHAUSTION POINT THUS
HAVING BEEN RESOLVED IN PETITIONER'S FAVOR BELOW, THE STATE QUITE
PROPERLY DOES NOT PRESS IT HERE. 

/2/  SEE BRIEF FOR APPELLEE IN COURT OF APPEALS 28-43. 

/3/  THE JURY LISTS WERE MADE UP FROM THE TAX DIGESTS, WHICH WERE BY
LAW SEGREGATED ACCORDING TO RACE; MOREOVER, THE JURY LISTS CONTAINED A
PROPORTION OF NEGROES MUCH SMALLER THAN THE PROPORTION IN THE
POPULATION OR IN THE TAX DIGESTS.  THE JURY-SELECTION SYSTEM OF
MUSCOGEE COUNTY, GEORGIA, WAS EXPLORED IN DETAIL AND STRUCK DOWN AS
UNCONSTITUTIONAL IN VANLEEWARD V. RUTLEDGE, 369 F.2D 584 (CA5 1966),
CONTEMPORANEOUSLY WITH PETITIONER'S TRIAL.  ON PETITIONER'S FIRST
FEDERAL APPEAL, THE COURT OF APPEALS SUGGESTED, THOUGH IT DID NOT HOLD,
THAT THE VANLEEWARD FINDINGS AND CONCLUSIONS ON THIS POINT SHOULD BE
REGARDED AS CONCLUSIVE WITH RESPECT TO PETERS, AND THEREBY THE EXPENSE
AND DELAY OF A FULL EVIDENTIARY HEARING MIGHT BE AVOIDED, 397 F.2D,AT
740. 

/4/  A NUMBER OF STATE COURTS AND LOWER FEDERAL COURTS HAVE IMPOSED
A "SAME CLASS" RULE ON CHALLENGES TO DISCRIMINATORY JURY SELECTION,
HOLDING THAT THE EXCLUSION OF A CLASS FROM JURY SERVICE IS SUBJECT TO
CHALLENGE ONLY BY A MEMBER OF THE EXCLUDED CLASS.  ONLY A FEW COURTS
HAVE REJECTED THE RULE; E.G., ALLEN V. STATE, 110 GA.APP.  56, 137
S.E.2D 711 (1964) (NOT FOLLOWED BY OTHER PANELS OF SAME COURT); STATE
V. MADISON, 240 MD. 265, 213 A.2D 880 (1965).  THE CASES ARE COLLECTED,
AND CRITICIZED, IN NOTE, THE DEFENDANT'S CHALLENGE TO A RACIAL
CRITERION IN JURY SELECTION, 74 YALE L.J. 919 (1965).  SEE ALSO NOTE,
THE CONGRESS, THE COURT AND JURY SELECTION, 52 VA.L.REV.  1069 (1966). 
THIS COURT AVOIDED PASSING ON THE "SAME CLASS" RULE IN FAY V. NEW YORK,
332 U.S. 261, 289-290 (1947), AND HAS NEVER SINCE THEN APPROVED OR
REJECTED IT. 

/5/  HE ALSO CLAIMS HIS OWN RIGHTS UNDER THE EQUAL PROTECTION CLAUSE
HAVE BEEN VIOLATED, A CLAIM WE NEED NOT CONSIDER IN LIGHT OF OUR
DISPOSITION. 

/6/  ALEXANDER V. LOUISIANA, 405 U.S. 625 (1972); ARNOLD V. NORTH
CAROLINA, 376 U.S. 773 (1964); EUBANKS V. LOUISIANA, 356 U.S. 584
(1958); REECE V. GEORGIA, 350 U.S. 85 (1955); CASSELL V. TEXAS, 339
U.S. 282 (1950); HILL V. TEXAS, 316 U.S. 400 (1942); SMITH V. TEXAS,
311 U.S. 128 (1940); PIERRE V. LOUISIANA, 306 U.S. 354 (1939); ROGERS
V. ALABAMA, 192 U.S. 226 (1904); CARTER V. TEXAS, 177 U.S. 442 (1900);
BUSH V. KENTUCKY, 107 U.S. 110 (1883). 

/7/  AVERY V. GEORGIA, 345 U.S. 559 (1953); HOLLINS V. OKLAHOMA, 295
U.S. 394 (1935). 

/8/  SIMS V. GEORGIA, 389 U.S. 404 (1967); JONES V. GEORGIA, 389
U.S. 24 (1967); WHITUS V. GEORGIA, 385 U.S. 545 (1967); COLEMAN V.
ALABAMA, 377 U.S. 129 (1964); PATTON V. MISSISSIPPI, 332 U.S. 463
(1947); HALE V. KENTUCKY, 303 U.S. 613 (1938); NORRIS V. ALABAMA, 294
U.S. 587 (1935); MARTIN V. TEXAS, 200 U.S. 316 (1906); NEAL V.
DELAWARE, 103 U.S. 370 (1881); STRAUDER V. WEST VIRGINIA, 100 U.S. 303
(1880). 

/9/  THE PRINCIPLE OF THE REPRESENTATIVE JURY WAS FIRST ARTICULATED
BY THIS COURT AS A REQUIREMENT OF EQUAL PROTECTION IN CASES VINDICATING
THE RIGHT OF A NEGRO DEFENDANT TO CHALLENGE THE SYSTEMATIC EXCLUSION OF
NEGROES FROM HIS GRAND AND PETIT JURIES.  E.G., SMITH V. TEXAS, 311
U.S. 128, 130 (1940).  SUBSEQUENTLY, IN THE EXERCISE OF ITS SUPERVISORY
POWER OVER FEDERAL COURTS, THIS COURT EXTENDED THE PRINCIPLE, TO PERMIT
ANY DEFENDANT TO CHALLENGE THE ARBITRARY EXCLUSION FROM JURY SERVICE OF
HIS OWN OR ANY OTHER CLASS.  E.G., GLASSER V. UNITED STATES, 315 U.S.
60, 83-87 (1942); THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217, 220
(1946); BALLARD V. UNITED STATES, 329 U.S. 187 (1946).  FINALLY IT
EMERGED AS AN ASPECT OF THE CONSTITUTIONAL RIGHT TO JURY TRIAL IN
WILLIAMS V. FLORIDA, 399 U.S. 78, 100 (1970). 

/10/  IT IS OF COURSE A SEPARATE QUESTION WHETHER HIS CHALLENGE
WOULD PREVAIL, I.E., WHETHER THE EXCLUSION MIGHT BE FOUND TO HAVE
SUFFICIENT JUSTIFICATION.  SEE RAWLINS V. GEORGIA, 201 U.S. 638, 640
(1906), HOLDING THAT A STATE MAY EXCLUDE CERTAIN OCCUPATIONAL
CATEGORIES FROM JURY SERVICE "ON THE BONA FIDE GROUND THAT IT (IS) FOR
THE GOOD OF THE COMMUNITY THAT THEIR REGULAR WORK SHOULD NOT BE
INTERRUPTED."  WE HAVE NO OCCASION HERE TO CONSIDER WHAT INTERESTS
MIGHT JUSTIFY AN EXCLUSION, OR WHAT STANDARD SHOULD BE APPLIED, SINCE
THE ONLY QUESTION IN THIS CASE IS NOT THE VALIDITY OF AN EXCLUSION BUT
SIMPLY STANDING TO CHALLENGE IT. 

/11/  OR THE CLASS MAY BE EXPANDED SLIGHTLY TO INCLUDE WHITE CIVIL
RIGHTS WORKERS, SEE ALLEN V. STATE, 110 GA.APP.  56, 62, 137 S.E.2D
711, 715 (1964) (ALTERNATIVE HOLDING). 

/12/  IN REJECTING, FOR THE FEDERAL COURTS, THE EXCLUSION OF WOMEN
FROM JURY SERVICE, THIS COURT MADE THE FOLLOWING OBSERVATIONS, WHICH
ARE EQUALLY RELEVANT TO THE EXCLUSION OF OTHER DISCERNIBLE GROUPS: 

"THE TRUTH IS THAT THE TWO SEXES ARE NOT FUNGIBLE; A COMMUNITY MADE
UP EXCLUSIVELY OF ONE IS DIFFERENT FROM A COMMUNITY COMPOSED OF BOTH;
THE SUBTLE INTERPLAY OF INFLUENCE ONE ON THE OTHER IS AMONG THE
IMPONDERABLES.  TO INSULATE THE COURTROOM FROM EITHER MAY NOT IN A
GIVEN CASE MAKE AN IOTA OF DIFFERENCE.  YET A FLAVOR, A DISTINCT
QUALITY IS LOST IF EITHER SEX IS EXCLUDED."  BALLARD V. UNITED STATES,
329 U.S. 187, 193-194 (1946) (FOOTNOTE OMITTED). 

/13/  HILL V. TEXAS, 316 U.S. 400, 406 (1942). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
POWELL JOIN, CONCURRING IN THE JUDGMENT. 

SINCE MARCH 1, 1875, THE CRIMINAL LAWS OF THE UNITED STATES HAVE
CONTAINED A PROSCRIPTION TO THE FOLLOWING EFFECT: 

     "NO CITIZEN POSSESSING ALL OTHER QUALIFICATIONS WHICH ARE OR

  MAY BE PRESCRIBED BY LAW SHALL BE DISQUALIFIED FOR SERVICE AS

  GRAND OR PETIT JUROR IN ANY COURT OF THE UNITED STATES, OR OF ANY

  STATE ON ACCOUNT OF RACE, COLOR, OR PREVIOUS CONDITION OF

  SERVITUDE.  . . . "

BY THIS UNABMIGUOUS PROVISION, NOW CONTAINED IN 18 U.S.C. 243, CONGRESS
PUT CASES INVOLVING EXCLUSIONS FROM JURY SERVICE ON GROUNDS OF RACE IN
A CLASS BY THEMSELVES.  "FOR US THE MAJESTIC GENERALITIES OF THE
FOURTEENTH AMENDMENT ARE THUS REDUCED TO A CONCRETE STATUTORY COMMAND
WHEN CASES INVOLVE RACE OR COLOR WHICH IS WANTING IN EVERY OTHER CASE
OF ALLEGED DISCRIMINATION."  FAY V. NEW YORK, 332 U.S. 261, 282-283
(1947). 

THE CONSEQUENCE IS THAT WHERE JURY COMMISSIONERS DISQUALIFY CITIZENS
ON THE GROUNDS OF RACE, THEY FAIL "TO PERFORM THEIR CONSTITUTIONAL DUTY
- RECOGNIZED BY SEC. 4 OF THE CIVIL RIGHTS ACT OF MARCH 1, 1875 . . .
AND FULLY ESTABLISHED SINCE THE DECISION IN 1881 OF NEAL V. DELAWARE .
. . NOT TO PURSUE A COURSE OF CONDUCT IN THE ADMINISTRATION OF THEIR
OFFICE WHICH WOULD OPERATE TO DISCRIMINATE IN THE SELECTION OF JURORS
ON RACIAL GROUNDS."  HILL V. TEXAS, 316 U.S. 400, 404 (1942).  THUS,
"NO STATE IS AT LIBERTY TO IMPOSE UPON ONE CHARGED WITH CRIME A
DISCRIMINATION IN ITS TRIAL PROCEDURE WHICH THE CONSTITUTION, AND AN
ACT OF CONGRESS PASSED PURSUANT TO THE CONSTITUTION, ALIKE FORBID.  . .
. (IT IS OUR DUTY AS WELL AS THE STATE'S TO SEE TO IT THAT THROUGHOUT
THE PROCEDURE FOR BRINGING HIM TO JUSTICE HE SHALL ENJOY THE PROTECTION
WHICH THE CONSTITUTION GUARANTEES.  WHERE, AS IN THIS CASE, TIMELY
OBJECTION HAS LAID BARE A DISCRIMINATION IN THE SELECTION OF GRAND
JURORS, THE CONVICTION CANNOT STAND, BECAUSE THE CONSTITUTION PROHIBITS
THE PROCEDURE BY WHICH IT WAS OBTAINED."  ID., AT 406. 

IT IS TRUE THAT THE DEFENDANT IN HILL WAS A NEGRO AND PETITIONER
HERE IS A WHITE MAN.  IT IS ALSO TRUE THAT THERE IS NO CASE IN THIS
COURT SETTING ASIDE A CONVICTION FOR ARBITRARY EXCLUSIONS OF A CLASS OF
CITIZENS FROM JURY SERVICE WHERE THE DEFENDANT WAS NOT A MEMBER OF THE
EXCLUDED CLASS.  I ALSO RECOGNIZE THAT, AS IN THIS CASE, THE COURTS OF
APPEALS REFLECTING THE GENERALLY ACCEPTED CONSTITUTIONAL VIEW, HAVE
REJECTED CLAIMS SUCH AS PETITIONER PRESENTS HERE.  FOR ME, HOWEVER, THE
RATIONALE AND OPERATIVE LANGUAGE OF HILL V. TEXAS SUGGEST A BROADER
SWEEP; AND I WOULD IMPLEMENT THE STRONG STATUTORY POLICY OF SEC. 243,
WHICH REFLECTS THE CENTRAL CONCERN OF THE FOURTEENTH AMENDMENT WITH
RACIAL DISCRIMINATION, BY PERMITTING PETITIONER TO CHALLENGE HIS
CONVICTION ON THE GROUNDS THAT NEGROES WERE ARBITRARILY EXCLUDED FROM
THE GRAND JURY THAT INDICTED HIM.  THIS IS THE BETTER VIEW, AND IT IS
TIME THAT WE NOW RECOGNIZED IT IN THIS CASE AND AS THE STANDARD
GOVERNING CRIMINAL PROCEEDINGS INSTITUTED HEREAFTER.  HENCE, I JOIN THE
JUDGMENT OF THE COURT. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN AND MR.
JUSTICE REHNQUIST JOIN, DISSENTING. 

THERE IS NO LONGER ANY QUESTION, OF COURSE, THAT PERSONS MAY NOT BE
EXCLUDED FROM JURIES ON ACCOUNT OF RACE.  SUCH EXCLUSIONS ARE PLAINLY
UNLAWFUL AND DESERVING OF CONDEMNATION.  THAT, HOWEVER, IS NOT THE
ISSUE BEFORE US.  THE REAL ISSUE IS WHETHER SUCH ILLEGALITY NECESSARILY
VOIDS A CRIMINAL CONVICTION, ABSENT ANY DEMONSTRATION OF PREJUDICE, OR
BASIS FOR PRESENTING PREJUDICE, TO THE ACCUSED. 

PETITIONER WAS INDICTED FOR THE OFFENSE OF BURGLARY ON JUNE 6, 1966,
AND THEREAFTER CONVICTED.  THE CONVICTION WAS REVERSED ON DIRECT
APPEAL, AND THE CASE WAS REMANDED FOR A NEW TRIAL.  PETITIONER WAS
RETRIED ON DECEMBER 8, 1966, WAS FOUND GUILTY, AND WAS SENTENCED TO 10
YEARS' IMPRISONMENT.  PETITIONER IS NOT A NEGRO AND THE RECORD IN NO
WAY SUGGESTS THAT RACE WAS RELEVANT IN THE PROCEEDINGS AGAINST HIM.  AT
TRIAL, PETITIONER MADE NO CHALLENGE TO THE METHOD OF SELECTION OF THE
GRAND AND PETIT JURIES, AND HE MADE NO CHALLENGE TO THE ARRAY OF THE
PETIT JURY.  IN HIS APPEAL TO THE COURT OF APPEALS OF GEORGIA,
PETITIONER STILL MADE NO CLAIM ADDRESSED TO THE METHOD OF SELECTION OF
THE GRAND AND PETIT JURIES.  HIS CONVICTION WAS AFFIRMED. 

SEVEN MONTHS AFTER HIS TRIAL, PETITIONER FILED A WRIT OF HABEAS
CORPUS IN THE UNITED STATES DISTRICT COURT, ASSERTING FOR THE FIRST
TIME THAT NEGORES WERE SYSTEMATICALLY EXCLUDED FROM THE GRAND AND PETIT
JURIES.  IF PETITIONER'S ALLEGATIONS ARE TRUE, THEN THE OFFICIALS
RESPONSIBLE FOR THE JURY SELECTION ACTED IN VIOLATION OF THE
CONSTITUTION, DENYING POTENTIAL NEGRO JURORS THE EQUAL OPPORTUNITY TO
PARTICIPATE IN THE ADMINISTRATION OF JUSTICE.  STRAUDER V. WEST
VIRGINA, 100 U.S. 303, 308 (1880).  MOREOVER, IF PETITIONER'S
ALLEGATIONS ARE TRUE, THE RESPONSIBLE OFFICIALS ARE SUBJECT TO CRIMINAL
PENALTIES.  18 U.S.C. 243.  HOWEVER, IN ORDER FOR PETITIONER'S
CONVICTION TO BE SET ASIDE, IT IS NOT ENOUGH TO SHOW MERELY THAT THERE
HAS BEEN SOME UNCONSTITUTIONAL OR UNLAWFUL ACTION AT THE TRIAL LEVEL. 
IT MUST BE ESTABLISHED THAT PETITIONER'S CONVICTION HAS RESULTED FROM
THE DENIAL OF FEDERALLY SECURED RIGHTS PROPERLY ASSERTED BY HIM.  SEE
ALDERMAN V. UNITED STATES, 394 U.S. 165, 171-174 (1969); CF. JONES V.
UNITED STATES, 362 U.S. 257, 261 (1960). 

THE OPINIONS IN SUPPORT OF THE MAJORITY POSITION DO NOT HOLD THAT IF
PETITIONER'S ALLEGATIONS ARE TRUE, HE HAS BEEN DENIED THE EQUAL
PROTECTION OF THE LAWS.  THE COURT HAS HELD IN A LONG LINE OF CASES
THAT A NEGRO DEFENDANT IS DENIED EQUAL PROTECTION BY THE SYSTEMATIC
EXCLUSION OF NEGROES FROM JURY SERVICE.  SEE, E.G., WHITUS V. GEORGIA,
385 U.S. 545 (1967); AVERY V. GEORGIA, 345 U.S. 559 (1953); NORRIS V.
ALABAMA, 294 U.S. 587 (1935); CARTER V. TEXAS, 177 U.S. 442 (1900);
STRAUDER V. WEST VIRGINIA, 100 U.S. 303 (1880).  THESE DECISIONS HAVE
BEEN PREDICATED FROM THE BEGINNING ON THE JUDICIALLY NOTICEABLE FACT
"THAT PREJUDICES OFTEN EXIST AGAINST PARTICULAR CLASSES IN THE
COMMUNITY, WHICH SWAY THE JUDGMENT OF JURORS, AND WHICH, THEREFORE,
OPERATE IN SOME CASES TO DENY TO PERSONS OF THOSE CLASSES THE FULL
ENJOYMENT OF THAT PROTECTION WHICH OTHERS ENJOY."  STRAUDER V. WEST
VIRGINIA, SUPRA, AT 309.  SEE ALSO GIBSON V. MISSISSIPPI, 162 U.S. 565,
581 (1896); BUSH V. KENTUCKY, 107 U.S. 110, 117 (1883); NEAL V.
DELAWARE, 103 U.S. 370, 386 (1881); EX PARTE VIRGINIA, 100 U.S. 339,
345 (1880).  THIS PRESUMPTION OF PREJUDICE DERIVES FROM THE FACT THAT
THE DEFENDANT IS A MEMBER OF THE EXCLUDED CLASS, BUT THE COURT HAS
NEVER INTIMATED THAT A DEFENDANT IS THE VICTIM OF UNCONSTITUTIONAL
DISCRIMINATION IF HE DOES NOT CLAIM THAT MEMBERS OF HIS OWN RACE HAVE
BEEN EXCLUDED.  SEE ALEXANDER V. LOUISIANA, 405 U.S. 625, 633 (1972). 

WHILE THE OPINION OF MR. JUSTICE MARSHALL REFRAINS FROM RELYING ON
THE EQUAL PROTECTION CLAUSE, IT CONCLUDES THAT IF PETITIONER'S
ALLEGATIONS ARE TRUE, HE HAS BEEN DENIED DUE PROCESS OF LAW.  THE
OPINION SEEKS TO EQUATE PETITIONER'S POSITION WITH THAT OF A DEFENDANT
WHO HAS BEEN TRIED BEFORE A BIASED TRIBUNAL OR ONE LACKING THE INDICIA
OF IMPARTIALITY.  IT HAS BEEN HELD THAT AN ACCUSED IS DENIED DUE
PROCESS IF THE TRIER OF FACT IS MENTALLY INCOMPETENT, JORDAN V.
MASSACHUSETTS, 225 U.S. 167 (1912), HAS A PERSONAL INTEREST IN THE
OUTCOME OF THE PROCEEDINGS, TUMEY V. OHIO, 273 U.S. 510 (1927), HAS
BEEN SUBJECTED TO PRESSURES MAKING A DISPASSIONATE DECISION UNLIKELY,
IRVIN V. DOWD, 366 U.S. 717 (1961), MOORE V. DEMPSEY, 261 U.S. 86
(1923), CF. TURNER V. LOUISIANA, 379 U.S. 466 (1965), OR HAS HAD DIRECT
PERSONAL INVOLVEMENT WITH THE EVENTS UNDERLYING A CRIMINAL CONTEMPT
CHARGE.  MAYBERRY V. PENNSYLVANIA, 400 U.S. 455 (1971); IN RE
MURCHISON, 349 U.S. 133 (1955).  THIS CASE PLAINLY FALLS IN NONE OF
THOSE CATEGORIES. 

ALTHOUGH THE PRIOR CASES HAVE NOT REQUIRED A SHOWING THAT THE TRIER
OF FACT WAS ACTUALLY AFFECTED BY PREJUDICE IN ITS DELIBERATIONS, IN
EVERY CASE THE CIRCUMSTANCES WERE SUCH AS TO CREATE A SERIOUS
"PROBABILITY OF UNFAIRNESS."  IN RE MURCHISON, 349 U.S.,AT 136. 
RECOGNIZING THIS LIMITATION, THE COURT IN WITHERSPOON V. ILLINOIS, 391
U.S. 510 (1968), FOUND NO DENIAL OF DUE PROCESS WHERE THE DETERMINATION
OF GUILT HAD BEEN ENTRUSTED TO A JURY FROM WHICH PERSONS OPPOSED TO THE
DEATH PENALTY HAD BEEN EXCLUDED.  THE COURT REJECTED AS "TENTATIVE AND
FRAGMENTARY" SCIENTIFIC EVIDENCE TENDING TO SHOW "THAT JURORS NOT
OPPOSED TO THE DEATH PENALTY TEND TO FAVOR THE PROSECUTION IN THE
DETERMINATION OF GUILT."  391 U.S.,AT 517.  THE COURT WENT ON TO
STATE, 

"WE SIMPLY CANNOT CONCLUDE, EITHER ON THE BASIS OF THE RECORD NOW
BEFORE US OR AS A MATTER OF JUDICIAL NOTICE, THAT THE EXCLUSION OF
JURORS OPPOSED TO CAPITAL PUNISHMENT RESULTS IN AN UNREPRESENTATIVE
JURY ON THE ISSUE OF GUILT OR SUBSTANTIALLY INCREASES THE RISK OF
CONVICTION.  IN LIGHT OF THE PRESENTLY AVAILABLE INFORMATION, WE ARE
NOT PREPARED TO ANNOUNCE A PER SE CONSTITUTIONAL RULE REQUIRING THE
REVERSAL OF EVERY CONVICTION RETURNED BY A JURY SELECTED AS THIS ONE
WAS."  391 U.S.,AT 517-518.  SEE ALSO FAY V. NEW YORK, 332 U.S. 261,
280-281 (1947).  HERE THREE MEMBERS OF THE COURT WOULD ESTABLISH SUCH A
PER SE RULE WITHOUT THE BENEFIT OF TENTATIVE, FRAGMENTARY, OR ANY OTHER
KIND OF EMPIRICAL DATA INDICATING THAT ALL-WHITE JURIES TEND TO BE
PREJUDICED AGAINST WHITE DEFENDANTS IN NONRACIAL CRIMINAL PROCEEDINGS. 

THE OPINION OF MR. JUSTICE MARSHALL SEEKS TO MAGNIFY THIS WHOLLY
SPECULATIVE LIKELIHOOD OF PREJUDICE BY NOTING THAT THE EFFECT OF
EXCLUDING "ANY LARGE AND IDENTIFIABLE SEGMENT OF THE COMMUNITY . . . IS
TO REMOVE FROM THE JURY ROOM QUALITIES OF HUMAN NATURE AND VARIETIES OF
HUMAN EXPERIENCE, THE RANGE OF WHICH IS UNKNOWN AND PERHAPS
UNKNOWABLE," AND "THAT ITS EXCLUSION DEPRIVES THE JURY OF A PERSPECTIVE
ON HUMAN EVENTS THAT MAY HAVE UNSUSPECTED IMPORTANCE IN ANY CASE THAT
MAY BE PRESENTED."  ANTE, AT 503-504.  I COMPLETELY AGREE THAT JURIES
SHOULD NOT BE DEPRIVED OF THE INSIGHTS OF THE VARIOUS SEGMENTS OF THE
COMMUNITY, FOR THE "COMMON-SENSE JUDGMENT OF A JURY," REFERRED TO IN
DUNCAN V. LOUISIANA, 391 U.S. 145, 156 (1968), IS SURELY ENRICHED WHEN
ALL VOICES CAN BE HEARD.  BUT WE ARE NOT HERE CONCERNED WITH THE
ESSENTIAL ATTRIBUTES OF TRIAL BY JURY.  IN FACT, SINCE PETITIONER WAS
TRIED TWO YEARS BEFORE THIS COURT'S DECISION IN DUNCAN, THERE WAS NO
CONSTITUTIONAL REQUIREMENT THAT HE BE TRIED BEFORE A JURY AT ALL. 
DESTEFANO V. WOODS, 392 U.S. 631 (1968).  HAD THE STATE OF GEORGIA
PROCEEDED TO TRY PETITIONER BEFORE A JUDGE, I ASSUME THE COURT WOULD
NOT FIND IT A DENIAL OF DUE PROCESS IF THE JUDGE WERE NOT THE
EMBODIMENT OF ALL THE "QUALITIES OF HUMAN NATURE AND VARIETIES OF HUMAN
EXPERIENCE."  I DO NOT MEAN TO MINIMIZE THE IMPORTANCE OF THESE VALUES,
BUT THEY REALLY HAVE VERY LITTLE TO DO WITH THE NARROW QUESTION WHETHER
PETITIONER WAS CONVICTED BY A PREJUDICED TRIBUNAL. 

NOR DO I BELIEVE THAT THE ILLEGALITY OF THE ALLEGED EXCLUSION CAN BE
VIEWED AS TIPPING THE SCALES TOWARD FINDING A DENIAL OF DUE PROCESS. 
THE QUESTION OF A JURY'S BIAS OR PREJUDICE IS TOTALLY FACTUAL IN
NATURE.  IF THE POSSIBILITY OF PREJUDICE IS TOO REMOTE OR SPECULATIVE
TO SUPPORT A FINDING OF UNCONSTITUTIONALITY, A DIFFERENT RESULT CANNOT
BE JUSTIFIED BY RELYING ON THE ELEMENT OF ILLEGALITY.  THE
CONSTITUTIONAL AND STATUTORY PROHIBITION AGAINST SUCH CONDUCT IS
EXTRANEOUS TO THE DUE PROCESS QUESTION, FOR IT IN NO WAY RENDERS THE
POSSIBILITY OF PREJUDICE LESS REMOTE OR LESS SPECULATIVE.  IF THIS WERE
A BORDERLINE CASE ON THE FACTS, IT MIGHT CONCEIVABLY BE APPROPRIATE TO
RESOLVE THE DOUBT AGAINST THE STATE DUE TO ITS COMPLICITY IN THE
ALLEGED UNLAWFUL DISCRIMINATION.  BUT, JUDGING FROM ALL EXISTING
AUTHORITY, THIS IS NOT A CLOSE CASE AT ALL. 

THE OPINION OF MR. JUSTICE WHITE CONCURRING IN THE JUDGMENT, AS I
READ IT, RESTS ON THE STATUTORY PROHIBITION AGAINST RACIALLY EXCLUSIVE
JURIES FOUND IN 18 U.S.C. 243.  THE OPINION DRAWS ON DICTUM IN HILL V.
TEXAS, 316 U.S. 400, 404 (1942), A CASE INVOLVING A NEGRO DEFENDANT, AS
EXPRESSING THE "BETTER VIEW" THAT SEC. 243 INVALIDATES THE CONVICTION
OF ANY MAN TRIED BEFORE A JURY FROM WHICH PERSONS HAVE BEEN EXCLUDED ON
ACCOUNT OF RACE.  /1/ 

A CLOSER LOOK AT THE STATUTE IS WARRANTED.  FROM ALL INDICATIONS,
SEC. 243 WAS INTENDED TO SERVE TWO PURPOSES:  FIRST, TO MAKE EXPLICIT
WHAT WAS IMPLICIT IN THE FOURTEENTH AMENDMENT, THAT PERSONS CANNOT BE
DENIED THE RIGHT TO SERVE ON JURIES BECAUSE OF THEIR RACE; AND SECOND,
TO PREVENT RACIAL EXCLUSIONS FROM JURIES BY PROVIDING CRIMINAL
PENALTIES FOR PERSONS VIOLATING THE STATUTORY COMMAND.  SEE EX PARTE
VIRGINIA, 100 U.S. 339 (1880); NEAL V. DELAWARE, 103 U.S. 370, 386
(1881).  INSOFAR AS THE STATUTE IS DECLARATIVE OF RIGHTS SECURED BY THE
EQUAL PROTECTION CLAUSE, IT PROVIDES NO AUTHORITY FOR REACHING A RESULT
THAT THE CONSTITUTION ITSELF DOES NOT REQUIRE.  NO CASE HAS EVER HELD
THAT SEC. 243 CONFERS EXTRA-CONSTITUTIONAL RIGHTS ON CRIMINAL
DEFENDANTS, AND THERE IS NO SUPPORT FOR THE VIEW THAT CONGRESS INTENDED
TO CONFER SUCH RIGHTS WHEN IT ENACTED THIS LEGISLATION IN 1875. 

THE OPINION CONCURRING IN THE JUDGMENT SUGGESTS THAT AN EXPANSIVE
READING OF SEC. 243 IS APPROPRIATE TO "IMPLEMENT THE STRONG STATUTORY
POLICY" AGAINST THE EXCLUSION OF PERSONS FROM JURY SERVICE ON THE BASIS
OF RACE.  UNDER THIS INTERPRETATION, THE STATUTE IS VIEWED NOT SO MUCH
AS SAFEGUARDING THE RIGHTS OF THE WHITE DEFENDANT, BUT AS PROVIDING A
PROPHYLAXIS AGAINST DISCRIMINATORY ACTION IN ALL CASES, REGARDLESS OF
ANY HARM THAT MIGHT BEFALL THE ACCUSED.  WHILE CONGRESS SURELY HAD THE
POWER TO IMPLEMENT THE POLICIES OF THE FOURTEENTH AMENDMENT IN THIS
MANNER, IT CHOSE INSTEAD TO DETER SUCH VIOLATIONS OF THE FOURTEENTH
AMENDMENT BY IMPOSING CRIMINAL SANCTIONS.  IT HAS BEEN APPARENT, AT
LEAST UNTIL RECENTLY, THAT SUCH SANCTIONS HAVE NOT SATISFACTORILY
SERVED TO DETER.  BUT IT IS NOT FOR THIS COURT TO CORRECT THE
INADEQUACIES OF A STATUTORY ENACTMENT.  MOREOVER, IT DOES NOTHING TO
PROMOTE ADHERENCE TO THE POLICIES OF THE FOURTEENTH AMENDMENT TO ALLOW
A CRIMINAL DEFENDANT WHO HAS MADE NO OBJECTION AT TRIAL AND WHO HAS NO
CREDIBLE CLAIM OF PERSONAL PREDUDICE TO MOUNT A POST-CONVICTION ATTACK
ALLEGING THAT DISCRIMINATORY JURY SELECTION HAS TAKEN PLACE IN THE
PAST. 

/1/  THE PASSAGE QUOTED FROM HILL V. TEXAS, SUPRA, EVEN IF TAKEN AT
FACE VALUE, DOES NOT MANDATE REVERSAL IN THIS CASE.  IT IS EXPRESSLY
LIMITED TO THE CASE WHERE "TIMELY OBJECTION HAS LAID BARE A
DISCRIMINATION IN THE SELECTION OF GRAND JURORS.  . . . " 316 U.S.,AT
406.  AS INDICATED EARLIER, PETITIONER FIRST MADE HIS ALLEGATIONS SEVEN
MONTHS AFTER HIS TRIAL.  MOREOVER, ASSUMING, ARGUENDO, THAT THERE IS A
STATUTORY RIGHT NOT TO BE TRIED BEFORE A RACIALLY EXCLUSIVE JURY, IT IS
NOT CLEAR TO ME WHY PETITIONER'S FAILURE TO RAISE THE MATTER IN THE
STATE COURTS SHOULD NOT PRECLUDE HIM FROM RAISING IT ON A FEDERAL
HABEAS ATTACK.  THE COURT HAS SPOKEN OF A PRESUMPTION AGAINST THE
WAIVER OF FUNDAMENTAL, CONSTITUTIONAL RIGHTS, SEE, E.G., JOHNSON V.
ZERBST, 304 U.S. 458, 464 (1938), BUT HAS NEVER INTIMATED THAT A
SIMILAR PRESUMPTION SHOULD APPLY WITH RESPECT TO STATUTORY RIGHTS. 

EDWARD T. M. GARLAND ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

DOROTHY T. BEASLEY, ASSISTANT ATTORNEY GENERAL OF GEORGIA, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HER ON THE BRIEF WERE ARTHUR K. BOLTON,
ATTORNEY GENERAL, HAROLD N. HILL, JR., EXECUTIVE ASSISTANT ATTORNEY
GENERAL, AND COURTNEY WILDER STANTON AND DAVID L. G. KING, JR.,
ASSISTANT ATTORNEYS GENERAL. 

JACK GREENBERG, JAMES M. NABRIT III, AND CHARLES STEPHEN RALSTON
FILED A BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.,
AS AMICUS CURIAE, URGING REVERSAL. 
..END :







BARKER V. WINGO, 407 U.S. 514 


       BARKER V. WINGO, WARDEN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 71-5255.  ARGUED APRIL 11, 1972-- DECIDED JUNE 22,
1972 


PETITIONER WAS NOT BROUGHT TO TRIAL FOR MURDER UNTIL MORE THAN FIVE
YEARS AFTER HE HAD BEEN ARRESTED, DURING WHICH TIME THE PROSECUTION
OBTAINED NUMEROUS CONTINUANCES, INITIALLY FOR THE PURPOSE OF FIRST
TRYING PETITIONER'S ALLEGED ACCOMPLICE SO THAT HIS TESTIONY, IF
CONVICTION RESULTED, WOULD BE AVAILABLE AT PETITIONER'S TRIAL.  BEFORE
THE ACCOMPLICE WAS FINALLY CONVICTED, HE WAS TRIED SIX TIMES. 
PETITIONER MADE NO OBJECTION TO THE CONTINUANCES UNTIL THREE AND ONE
HALF YEARS AFTER HE WAS ARRESTED.  AFTER THE ACCOMPLICE WAS FINALLY
CONVICTED, PETITIONER, AFTER FURTHER DELAYS BECAUSE OF A KEY
PROSECUTION WITNESS' ILLNESS, WAS TRIED AND CONVICTED.  IN THIS HABEAS
CORPUS PROCEEDING THE COURT OF APPEALS, CONCLUDING THAT PETITIONER HAD
WAIVED HIS RIGHT TO A SPEEDY TRIAL FOR THE PERIOD PRIOR TO HIS DEMAND
FOR TRIAL, AND IN ANY EVENT HAD NOT BEEN PREJUDICED BY THE DELAY,
AFFIRMED THE DISTRICT COURT'S JUDGMENT AGAINST PETITIONER.  HELD:  A
DEFENDANT'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL CANNOT BE
ESTABLISHED BY ANY INFLEXIBLE RULE BUT CAN BE DETERMINED ONLY ON AN AD
HOC BALANCING BASIS, IN WHICH THE CONDUCT OF THE PROSECUTION AND THAT
OF THE DEFENDANT ARE WEIGHED.  THE COURT SHOULD ASSESS SUCH FACTORS AS
THE LENGTH OF AND REASON FOR THE DELAY, THE DEFENDANT'S ASSERTION OF
HIS RIGHT, AND PREJUDICE TO THE DEFENDANT.  IN THIS CASE THE LACK OF
ANY SERIOUS PREJUDICE TO PETITIONER AND THE FACT, AS DISCLOSED BY THE
RECORD, THAT HE DID NOT WANT A SPEEDY TRIAL OUTWEIGH OPPOSING
CONSIDERATIONS AND COMPEL THE CONCLUSION THAT PETITIONER WAS NOT
DEPRIVED OF HIS DUE PROCESS RIGHT TO A SPEEDY TRIAL.  PP. 519-536. 

442 F.2D 1141, AFFIRMED. 

POWELL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  WHITE, J.,
FILED A CONCURRING OPINION, IN WHICH BRENNAN, J., JOINED, POST, P.
536. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

ALTHOUGH A SPEEDY TRIAL IS GUARANTEED THE ACCUSED BY THE SIXTH
AMENDMENT TO THE CONSTITUTION, /1/  THIS COURT HAS DEALT WITH THAT
RIGHT ON INFREQUENT OCCASIONS.  SEE BEAVERS V. HAUBERT, 198 U.S. 77
(1905); POLLARD V. UNITED STATES, 352 U.S. 354 (1957); UNITED STATES V.
EWELL, 383 U.S. 116 (1966); UNITED STATES V. MARION, 404 U.S. 307
(1971).  SEE ALSO UNITED STATES V. PROVOO, 17 F.R.D. 183 (D. MD.),
AFF'D, 350 U.S. 857 (1955).  THE COURT'S OPINION IN KLOPFER V. NORTH
CAROLINA, 386 U.S. 213 (1967), ESTABLISHED THAT THE RIGHT TO A SPEEDY
TRIAL IS "FUNDAMENTAL" AND IS IMPOSED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT ON THE STATES.  /2/  SEE SMITH V. HOOEY, 393 U.S.
374 (1969); DICKEY V. FLORIDA, 398 U.S. 30 (1970).  AS MR. JUSTICE
BRENNAN POINTED OUT IN HIS CONCURRING OPINION IN DICKEY, IN NONE OF
THESE CASES HAVE WE ATTEMPTED TO SET OUT THE CRITERIA BY WHICH THE
SPEEDY TRIAL RIGHT IS TO BE JUDGED.  398 U.S.,AT 40-41.  THAT CASE
COMPELS US TO MAKE SUCH AN ATTEMPT. 

        I 

ON JULY 20, 1958, IN CHRISTIAN COUNTY, KENTUCKY, AN ELDERLY COUPLE
WAS BEATEN TO DEATH BY INTRUDERS WIELDING AN IRON TIRE TOOL.  TWO
SUSPECTS, SILAS MANNING AND WILLIE BARKER, THE PETITIONER, WERE
ARRESTED SHORTLY THEREAFTER.  THE GRAND JURY INDICTED THEM ON SEPTEMBER
15.  COUNSEL WAS APPOINTED ON SEPTEMBER 17, AND BARKER'S TRIAL WAS SET
FOR OCTOBER 21.  THE COMMONWALTH HAD A STRONGER CASE AGAINST MANNING,
AND IT BELIEVED THAT BARKER COULD NOT BE CONVICTED UNLESS MANNING
TESTIFIED AGAINST HIM.  MANNING WAS NATURALLY UNWILLING TO INCRIMINATE
HIMSELF.  ACCORDINGLY, ON OCTOBER 23, THE DAY SILAS MANNING WAS BROUGHT
TO TRIAL, THE COMMONWEALTH SOUGHT AND OBTAINED THE FIRST OF WHAT WAS TO
BE A SERIES OF 16 CONTINUANCES OF BARKER'S TRIAL.  /3/  BARKER MADE NO
OBJECTION.  BY FIRST CONVICTING MANNING, THE COMMONWEALTH WOULD REMOVE
POSSIBLE PROBLEMS OF SELF-INCRIMINATION AND WOULD BE ABLE TO ASSURE HIS
TESTIMONY AGAINST BARKER. 

THE COMMONWEALTH ENCOUNTERED MORE THAN A FEW DIFFICULTIES IN ITS
PROSECUTION OF MANNING.  THE FIRST TRIAL ENDED IN A HUNG JURY.  A
SECOND TRIAL RESULTED IN A CONVICTION, BUT THE KENTUCKY COURT OF
APPEALS REVERSED BECAUSE OF THE ADMISSION OF EVIDENCE OBTAINED BY AN
ILLEGAL SEARCH.  MANNING V. COMMONWEALTH, 328 S.W.2D 421 (1959).  AT
HIS THIRD TRIAL, MANNING WAS AGAIN CONVICTED, AND THE COURT OF APPEALS
AGAIN REVERSED BECAUSE THE TRIAL COURT HAD NOT GRANTED A CHANGE OF
VENUE.  MANNING V. COMMONWEALTH, 346 S.W.2D 755 (1961).  A FOURTH TRIAL
RESULTED IN A HUNG JURY.  FINALLY, AFTER FIVE TRIALS, MANNING WAS
CONVICTED, IN MARCH 1962, OF MURDERING ONE VICTIM, AND AFTER A SIXTH
TRIAL, IN DECEMBER 1962, HE WAS CONVICTED OF MURDERING THE OTHER.  /4/ 

THE CHRISTIAN COUNTY CIRCUIT COURT HOLDS THREE TERMS EACH YEAR-- IN
FEBRUARY, JUNE, AND SEPTEMBER.  BARKER'S INITIAL TRIAL WAS TO TAKE
PLACE IN THE SPETEMBER TERM OF 1958.  THE FIRST CONTINUANCE POSTPONED
IT UNTIL THE FEBRUARY 1959 TERM.  THE SECOND CONTINUANCE WAS GRANTED
FOR ONE MONTH ONLY.  EVERY TERM THEREAFTER FOR AS LONG AS THE MANNING
PROSECUTIONS WERE IN PROCESS, THE COMMONWEALTH ROUTINELY MOVED TO
CONTINUE BARKER'S CASE TO THE NEXT TERM.  WHEN THE CASE WAS CONTINUED
FROM THE JUNE 1959 TERM UNTIL THE FOLLOWING SEPTEMBER, BARKER, HAVING
SPENT 10 MONTHS IN JAIL, OBTAINED HIS RELEASE BY POSTING A $5,000
BOND.  HE THEREAFTER REMAINED FREE IN THE COMMUNITY UNTIL HIS TRIAL. 
BARKER MADE NO OBJECTION, THROUGH HIS COUNSEL, TO THE FIRST 11
CONTINUANCES. 

WHEN ON FEBRUARY 12, 1962, THE COMMONWEALTH MOVED FOR THE TWELFTH
TIME TO CONTINUE THE CASE UNTIL THE FOLLOWING TERM, BARKER'S COUNSEL
FILED A MOTION TO DISMISS THE INDICTMENT.  THE MOTION TO DISMISS WAS
DENIED TWO WEEKS LATER, AND THE COMMONWEALTH'S MOTION FOR A CONTINUANCE
WAS GRANTED.  THE COMMONWEALTH WAS GRANTED FURTHER CONTINUANCES IN JUNE
1962 AND SEPTEMBER 1962, TO WHICH BARKER DID NOT OBJECT. 

IN FEBRUARY 1963, THE FIRST TERM OF COURT FOLLOWING MANNING'S FINAL
CONVICTION, THE COMMONWEALTH MOVED TO SET BARKER'S TRIAL FOR MARCH 19. 
BUT ON THE DAY SCHEDULED FOR TRIAL, IT AGAIN MOVED FOR A CONTINUANCE
UNTIL THE JUNE TERM.  IT GAVE AS ITS REASON THE ILLNESS OF THE EX
SHERIFF WHO WAS THE CHIEF INVESTIGATING OFFICER IN THE CASE.  TO THIS
CONTINUANCE, BARKER OBJECTED UNSUCCESSFULLY. 

THE WITNESS WAS STILL UNABLE TO TESTIFY IN JUNE, AND THE TRIAL,
WHICH HAD BEEN SET FOR JUNE 19, WAS CONTINUED AGAIN UNTIL THE SEPTEMBER
TERM OVER BARKER'S OBJECTION.  THIS TIME THE COURT ANNOUNCED THAT THE
CASE WOULD BE DISMISSED FOR LACK OF PROSECUTION IF IT WERE NOT TRIED
DURING THE NEXT TERM.  THE FINAL TRIAL DATE WAS SET FOR OCTOBER 9,
1963.  ON THAT DATE, BARKER AGAIN MOVED TO DISMISS THE INDICTMENT, AND
THIS TIME SPECIFIED THAT HIS RIGHT TO A SPEEDY TRIAL HAD BEEN
VIOLATED.  /5/  THE MOTION WAS DENIED; THE TRIAL COMMENCED WITH MANNING
AS THE CHIEF PROSECUTION WITNESS; BARKER WAS CONVICTED AND GIVEN A LIFE
SENTENCE. 

BARKER APPEALED HIS CONVICTION TO THE KENTUCKY COURT OF APPEALS,
RELYING IN PART ON HIS SPEEDY TRIAL CLAIM.  THE COURT AFFIRMED.  BARKER
V. COMMONWEALTH, 385 S.W.2D 671 (1964).  IN FEBRUARY 1970 BARKER
PETITIONED FOR HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF KENTUCKY.  ALTHOUGH THE DISTRICT COURT REJECTED
THE PETITION WITHOUT HOLDING A HEARING, THE COURT GRANTED PETITIONER
LEAVE TO APPEAL IN FORMA PAUPERIS AND A CERTIFICATE OF PROBABLE CAUSE
TO APPEAL.  ON APPEAL, THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
AFFIRMED THE DISTRICT COURT.  442 F.2D 1141 (1971).  IT RULED THAT
BARKER HAD WAIVED HIS SPEEDY TRIAL FOR THE ENTIRE PERIOD BEFORE
FEBRUARY 1963, THE DATE ON WHICH THE COURT BELIEVED HE HAD FIRST
OBJECTED TO THE DELAY BY FILING A MOTION TO DISMISS.  IN THIS BELIEF
THE COURT WAS MISTAKEN, FOR THE RECORD REVEALS THAT THE MOTION WAS
FILED IN FEBRUARY 1962.  THE COMMONWEALTH SO CONCEDED AT ORAL ARGUMENT
BEFORE THIS COURT.  /6/  THE COURT HELD FURTHER THAT THE REMAINING
PERIOD AFTER THE DATE ON WHICH BARKER FIRST RAISED HIS CLAIM AND BEFORE
HIS TRIAL-- WHICH IT THOUGHT WAS ONLY EIGHT MONTHS BUT WHICH WAS
ACTUALLY 20 MONTHS-- WAS NOT UNDULY LONG.  IN ADDITION, THE COURT HELD
THAT BARKER HAD SHOWN NO RESULTING PREJUDICE, AND THAT THE ILLNESS OF
THE EX-SHERIFF WAS A VALID JUSTIFICATION FOR THE DELAY.  WE GRANTED
BARKER'S PETITION FOR CERTIORARI.  404 U.S. 1037 (1972). 

        II 

THE RIGHT TO A SPEEDY TRIAL IS GENERICALLY DIFFERENT FROM ANY OF THE
OTHER RIGHTS ENSHRINED IN THE CONSTITUTION FOR THE PROTECTION OF THE
ACCUSED.  IN ADDITION TO THE GENERAL CONCERN THAT ALL ACCUSED PERSONS
BE TREATED ACCORDING TO DECENT AND FAIR PROCEDURES, THERE IS A SOCIETAL
INTEREST IN PROVIDING A SPEEDY TRIAL WHICH EXISTS SEPARATE FROM, AND AT
TIMES IN OPPOSITION TO, THE INTERESTS OF THE ACCUSED.  THE INABILITY OF
COURTS TO PROVIDE A PROMPT TRIAL HAS CONTRIBUTED TO A LARGE BACKLOG OF
CASES IN URBAN COURTS WHICH, AMONG OTHER THINGS, ENABLES DEFENDANTS TO
NEGOTIATE MORE EFFECTIVELY FOR PLEAS OF GUILTY TO LESSER OFFENSES AND
OTHERWISE MANIPULATE THE SYSTEM.  /7/  IN ADDITION, PERSONS RELEASED ON
BOND FOR LENGTHY PERIODS AWAITING TRIAL HAVE AN OPPORTUNITY TO COMMIT
OTHER CRIMES.  /8/  IT MUST BE OF LITTLE COMFORT TO THE RESIDENTS OF
CHRISTIAN COUNTY, KENTUCKY, TO KNOW THAT BARKER WAS AT LARGE ON BAIL
FOR OVER FOUR YEARS WHILE ACCUSED OF A VICIOUS AND BRUTAL MURDER OF
WHICH HE WAS ULTIMATELY CONVICTED.  MOREOVER, THE LONGER AN ACCUSED IS
FREE AWAITING TRIAL, THE MORE TEMPTING BECOMES HIS OPPORTUNITY TO JUMP
BAIL AND ESCAPE.  /9/  FINALLY, DELAY BETWEEN ARREST AND PUNISHMENT MAY
HAVE A DETRIMENTAL EFFECT ON REHABILITATION.  /10/ 

IF AN ACCUSED CANNOT MAKE BAIL, HE IS GENERALLY CONFINED, AS WAS
BARKER FOR 10 MONTHS, IN A LOCAL JAIL.  THIS CONTRIBUTES TO THE
OVERCROWDING AND GENERALLY DEPLORABLE STATE OF THOSE INSTITUTIONS. 
/11/  LENGTHY EXPOSURE TO THESE CONDITIONS "HAS A DESTRUCTIVE EFFECT ON
HUMAN CHARACTER AND MAKES THE REHABILITATION OF THE INDIVIDUAL OFFENDER
MUCH MORE DIFFICULT."  /12/  AT TIMES THE RESULT MAY EVEN BE VIOLENT
RIOTING.  /13/  FINALLY, LENGTHY PRETRIAL DETENTION IS COSTLY.  THE
COST OF MAINTAINING A PRISONER IN JAIL VARIES FROM $3 TO $9 PER DAY,
AND THIS AMOUNTS TO MILLIONS ACROSS THE NATION.  /14/  IN ADDITION,
SOCIETY LOSES WAGES WHICH MIGHT HAVE BEEN EARNED, AND IT MUST OFTEN
SUPPORT FAMILIES OF INCARCERATED BREADWINNERS. 

A SECOND DIFFERENCE BETWEEN THE RIGHT TO SPEEDY TRIAL AND THE
ACCUSED'S OTHER CONSTITUTIONAL RIGHTS IS THAT DEPRIVATION OF THE RIGHT
MAY WORK TO THE ACCUSED'S ADVANTAGE.  DELAY IS NOT AN UNCOMMON DEFENSE
TACTIC.  AS THE TIME BETWEEN THE COMMISSION OF THE CRIME AND TRIAL
LENGTHENS, WITNESSES MAY BECOME UNAVAILABLE OR THEIR MEMORIES MAY
FADE.  IF THE WITNESSES SUPPORT THE PROSECUTION, ITS CASE WILL BE
WEAKENED, SOMETIMES SERIOUSLY SO.  AND IT IS THE PROSECUTION WHICH
CARRIES THE BURDEN OF PROOF.  THUS, UNLIKE THE RIGHT TO COUNSEL OR THE
RIGHT TO BE FREE FROM COMPELLED SELF-INCRIMINATION, DEPRIVATION OF THE
RIGHT TO SPEEDY TRIAL DOES NOT PER SE PREJUDICE THE ACCUSED'S ABILITY
TO DEFEND HIMSELF. 

FINALLY, AND PERHAPS MOST IMPORTANTLY, THE RIGHT TO SPEEDY TRIAL IS
A MORE VAGUE CONCEPT THAN OTHER PROCEDURAL RIGHTS.  IT IS, FOR EXAMPLE,
IMPOSSIBLE TO DETERMINE WITH PRECISION WHEN THE RIGHT HAS BEEN DENIED. 
WE CANNOT DEFINITELY SAY HOW LONG IS TOO LONG IN A SYSTEM WHERE JUSTICE
IS SUPPOSED TO BE SWIFT BUT DELIBERATE.  /15/  AS A CONSEQUENCE, THERE
IS NO FIXED POINT IN THE CRIMINAL PROCESS WHEN THE STATE CAN PUT THE
DEFENDANT TO THE CHOICE OF EITHER EXERCISING OR WAIVING THE RIGHT TO A
SPEEDY TRIAL.  IF, FOR EXAMPLE, THE STATE MOVES FOR A 60-DAY
CONTINUANCE, GRANTING THAT CONTINUANCE IS NOT A VIOLATION OF THE RIGHT
TO SPEEDY TRIAL UNLESS THE CIRCUMSTANCES OF THE CASE ARE SUCH THAT
FURTHER DELAY WOULD ENDANGER THE VALUES THE RIGHTS PROTECTS.  IT IS
IMPOSSIBLE TO DO MORE THAN GENERALIZE ABOUT WHEN THOSE CIRCUMSTANCES
EXIST.  THERE IS NOTHING COMPARABLE TO THE POINT IN THE PROCESS WHEN A
DEFENDANT EXERCISES OR WAIVES HIS RIGHT TO COUNSEL OR HIS RIGHT TO A
JURY TRIAL.  THUS, AS WE RECOGNIZED IN BEAVERS V. HAUBERT, SUPRA, ANY
INQUIRY INTO A SPEEDY TRIAL CLAIM NECESSITATES A FUNCTIONAL ANALYSIS OF
THE RIGHT IN THE PARTICULAR CONTEXT OF THE CASE: 

"THE RIGHT OF A SPEEDY TRIAL IS NECESSARILY RELATIVE.  IT IS
CONSISTENT WITH DELAYS AND DEPENDS UPON CIRCUMSTANCES.  IT SECURES
RIGHTS TO A DEFENDANT.  IT DOES NOT PRECLUDE THE RIGHTS OF PUBLIC
JUSTICE."  198 U.S.,AT 87. 

THE AMORPHOUS QUALITY OF THE RIGHT ALSO LEADS TO THE
UNSATISFACTORILY SEVERE REMEDY OF DISMISSAL OF THE INDICTMENT WHEN THE
RIGHT HAS BEEN DEPRIVED.  THIS IS INDEED A SERIOUS CONSEQUENCE BECAUSE
IT MEANS THAT A DEFENDANT WHO MAY BE GUILTY OF A SERIOUS CRIME WILL GO
FREE, WITHOUT HAVING BEEN TRIED.  SUCH A REMEDY IS MORE SERIOUS THAN AN
EXCLUSIONARY RULE OR A REVERSAL FOR A NEW TRIAL, /16/  BUT IT IS THE
ONLY POSSIBLY REMEDY. 

        III 

PERHAPS BECAUSE THE SPEEDY TRIAL RIGHT IS SO SLIPPERY, TWO RIGID
APPROACHES ARE URGED UPON US AS WAYS OF ELIMINATING SOME OF THE
UNCERTAINTY WHICH COURTS EXPERIENCE IN PROTECTING THE RIGHT.  THE FIRST
SUGGESTION IS THAT WE HOLD THAT THE CONSTITUTION REQUIRES A CRIMINAL
DEFENDANT TO BE OFFERED A TRIAL WITHIN A SPECIFIED TIME PERIOD.  THE
RESULT OF SUCH A RULING WOULD HAVE THE VIRTUE OF CLARIFYING WHEN THE
RIGHT IS INFRINGED AND OF SIMPLIFYING COURTS'  APPLICATION OF IT.
RECOGNIZING THIS, SOME LEGISLATURES HAVE ENACTED LAWS, AND SOME COURTS
HAVE ADOPTED PROCEDURAL RULES WHICH MORE NARROWLY DEFINE THE RIGHT. 
/17/  THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT HAS
PROMULGATED RULES FOR THE DISTRICT COURTS IN THAT CIRCUIT ESTABLISHING
THAT THE GOVERNMENT MUST BE READY FOR TRIAL WITHIN SIX MONTHS OF THE
DATE OF ARREST, EXCEPT IN UNUSUAL CIRCUMSTANCES, OR THE CHARGE WILL BE
DISMISSED.  /18/  THIS TYPE OF RULE IS ALSO RECOMMENDED BY THE AMERICAN
BAR ASSOCIATION.  /19/ 

BUT SUCH A RESULT WOULD REQUIRE THIS COURT TO ENGAGE IN LEGISLATIVE
OR RULEMAKING ACTIVITY, RATHER THAN IN THE ADJUDICATIVE PROCESS TO
WHICH WE SHOULD CONFINE OUR EFFORTS.  WE DO NOT ESTABLISH PROCEDURAL
RULES FOR THE STATES, EXCEPT WHEN MANDATED BY THE CONSTITUTION.  WE
FIND NO CONSTITUTIONAL BASIS FOR HOLDING THAT THE SPEEDY TRIAL RIGHT
CAN BE QUANTIFIED INTO A SPECIFIED NUMBER OF DAYS OR MONTHS.  THE
STATES, OF COURSE, ARE FREE TO PRESCRIBE A REASONABLE PERIOD CONSISTENT
WITH CONSTITUTIONAL STANDARDS, BUT OUR APPROACH MUST BE LESS PRECISE. 

THE SECOND SUGGESTED ALTERNATIVE WOULD RESTRICT CONSIDERATION OF THE
RIGHT TO THOSE CASES IN WHICH THE ACCUSED HAS DEMANDED A SPEEDY TRIAL. 
MOST STATES HAVE RECOGNIZED WHAT IS LOOSELY REFERRED TO AS THE "DEMAND
RULE,"  /20/  ALTHOUGH EIGHT STATES REJECT IT.  /21/  IT IS NOT CLEAR,
HOWEVER, PRECISELY WHAT IS MEANT BY THAT TERM.  ALTHOUGH EVERY FEDERAL
COURT OF APPEALS THAT HAS CONSIDERED THE QUESTION HAS ENDORSED SOME
KIND OF DEMAND RULE, SOME HAVE REGARDED THE RULE WITHIN THE CONCEPT OF
WAIVER, /22/  WHEREAS OTHERS HAVE VIEWED IT AS A FACTOR TO BE WIEGHED
IN ASSESSING WHETHER THERE HAS BEEN A DEPRIVATION OF THE SPEEDY TRIAL
RIGHT.  /23/  WE SHALL REFER TO THE FORMER APPROACH AS THE DEMAND
WAIVER DOCTRINE.  THE DEMAND-WAIVER DOCTRINE PROVIDES THAT A DEFENDANT
WAIVES ANY CONSIDERATION OF HIS RIGHT TO SPEEDY TRIAL FOR ANY PERIOD
PRIOR TO WHICH HE HAS NOT DEMANDED A TRIAL.  UNDER THIS RIGID APPROACH,
A PRIOR DEMAND IS A NECESSARY CONDITION TO THE CONSIDERATION OF THE
SPEEDY TRIAL RIGHT.  THIS ESSENTIALLY WAS THE APPROACH THE SIXTH
CIRCUIT TOOK BELOW.     SUCH AN APPROACH, BY PRESUMING WAIVER OF A
FUNDAMENTAL RIGHT /24/  FROM INACTION, IS INCONSISTENT WITH THIS
COURT'S PRONOUNCEMENTS ON WAIVER OF CONSTITUTIONAL RIGHTS.  THE COURT
HAS DEFINED WAIVER AS "AN INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF
A KNOWN RIGHT OR PRIVILEGE."  JOHNSON V. ZERBST, 304 U.S. 458, 464
(1938).  COURTS SHOULD "INDULGE EVERY REASONABLE PRESUMPTION AGAINST
WAIVER," AETNA INS. CO. V. KENNEDY, 301 U.S. 389, 393 (1937), AND THEY
SHOULD "NOT PRESUME ACQUIESCENCE IN THE LOSS OF FUNDAMENTAL RIGHTS,"
OHIO BELL TEL. CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292, 307
(1937).  IN CARNELY V. COCHRAN, 369 U.S. 506 (1962), WE HELD: 

"PRESUMING WAIVER FROM A SILENT RECORD IS IMPERMISSIBLE.  THE RECORD
MUST SHOW, OR THERE MUST BE AN ALLEGATION AND EVIDENCE WHICH SHOW, THAT
AN ACCUSED WAS OFFERED COUNSEL BUT INTELLIGENTLY AND UNDERSTANDABLY
REJECTED THE OFFER.  ANYTHING LESS IS NOT WAIVER."  ID., AT 516.  THE
COURT HAS RULED SIMILARLY WITH RESPECT TO WAIVER OF OTHER RIGHTS
DESIGNED TO PROTECT THE ACCUSED.  SEE, E.G., MIRANDA V. ARIZONA, 384
U.S. 436, 475-476 (1966); BOYKIN V. ALABAMA, 395 U.S. 238 (1969). 

IN EXCEPTING THE RIGHT TO SPEEDY TRIAL FROM THE RULE OF WAIVER WE
HAVE APPLIED TO OTHER FUNDAMENTAL RIGHTS, COURTS THAT HAVE APPLIED THE
DEMAND-WAIVER RULE HAVE RELIED ON THE ASSUMPTION THAT DELAY USUALLY
WORKS FOR THE BENEFIT OF THE ACCUSED AND ON THE ABSENCE OF ANY READILY
ASCERTAINABLE TIME IN THE CRIMINAL PROCESS FOR A DEFENDANT TO BE GIVEN
THE CHOICE OF EXERCISING OR WAIVING HIS RIGHT.  BUT IT IS NOT
NECESSARILY TRUE THAT DELAY BENEFITS THE DEFENDANT.  THERE ARE CASES IN
WHICH DELAY APPRECIABLY HARMS THE DEFENDANT'S ABILITY TO DEFEND
HIMSELF.  /25/  MOREOVER, A DEFENDANT CONFINED TO JAIL PRIOR TO TRIAL
IS OBVIOUSLY DISADVANTAGES BY DELAY AS IS A DEFENDANT RELEASED ON BAIL
BUT UNABLE TO LEAD A NORMAL LIFE BECAUSE OF COMMUNITY SUSPICION AND HIS
OWN ANXIETY. 

THE NATURE OF THE SPEEDY TRIAL RIGHT DOES MAKE IT IMPOSSIBLE TO
PINPOINT A PRECISE TIME IN THE PROCESS WHEN THE RIGHT MUST BE ASSERTED
OR WAIVED, BUT THAT FACT DOES NOT ARGUE FOR PLACING THE BURDEN OF
PROTECTING THE RIGHT SOLELY ON DEFENDANTS.  A DEFENDANT HAS NO DUTY TO
BRING HIMSELF TO TRIAL; /26/  THE STATE HAS THAT DUTY AS WELL AS THE
DUTY OF INSURING THAT THE TRIAL IS CONSISTENT WITH DUE PROCESS.  /27/
MOREOVER, FOR THE REASONS EARLIER EXPRESSED, SOCIETY HAS A PARTICULAR
INTEREST IN BRINGING SWIFT PROSECUTIONS, AND SOCIETY'S REPRESENTATIVES
ARE THE ONES WHO SHOULD PROTECT THAT INTEREST. 

IT IS ALSO NOTEWORTHY THAT SUCH A RIGID VIEW OF THE DEMAND-WAIVER
RULE PLACES DEFENSE COUNSEL IN AN AWKWARD POSITION.  UNLESS HE DEMANDS
A TRIAL EARLY AND OFTEN, HE IS IN DANGER OF FRUSTRATING HIS CLIENT'S
RIGHT.  IF COUNSEL IS WILLING TO TOLERATE SOME DELAY BECAUSE HE FINDS
IT REASONABLE AND HELPFUL IN PREPARING HIS OWN CASE, HE MAY BE UNABLE
TO OBTAIN A SPEEDY TRIAL FOR HIS CLIENT AT THE END OF THAT TIME.  SINCE
UNDER THE DEMAND-WAIVER RULE NO TIME RUNS UNTIL THE DEMAND IS MADE, THE
GOVERNMENT WILL HAVE WHATEVER TIME IS OTHERWISE REASONABLE TO BRING THE
DEFENDANT TO TRIAL AFTER A DEMAND HAS BEEN MADE.  THUS, IF THE FIRST
DEMAND IS MADE THREE MONTHS AFTER ARREST IN A JURISDICTION WHICH
PRESCRIBES A SIX-MONTH RULE, THE PROSECTUION WILL HAVE A TOTAL OF NINE
MONTHS-- WHICH MAY BE WHOLLY UNREASONABLE UNDER THE CIRCUMSTANCES.  THE
RESULT IN PRACTICE IS LIKELY TO BE EITHER AN AUTOMATIC, PRO FORMA
DEMAND MADE IMMEDIATELY AFTER APPOINTMENT OF COUNSEL OR DELAYS WHICH,
BUT FOR THE DEMAND-WAIVER RULE, WOULD NOT BE TOLERATED.  SUCH A RESULT
IS NOT CONSISTENT WITH THE INTERESTS OF DEFENDANTS, SOCIETY, OR THE
CONSTITUTION. 

WE REJECT, THEREFORE, THE RULE THAT A DEFENDANT WHO FAILS TO DEMAND
A SPEEDY TRIAL FOREVER WAIVES HIS RIGHT.  /28/  THIS DOES NOT MEAN,
HOWEVER, THAT THE DEFENDANT HAS NO RESPONSIBILITY TO ASSERT HIS RIGHT. 
WE THINK THE BETTER RULE IS THAT THE DEFENDANT'S ASSERTION OF OR
FAILURE TO ASSERT HIS RIGHT TO A SPEEDY TRIAL IS ONE OF THE FACTORS TO
BE CONSIDERED IN AN INQUIRY INTO THE DEPRIVATION OF THE RIGHT.  SUCH A
FORMULATION AVOIDS THE RIGIDITIES OF THE DEMAND-WAIVER RULE AND THE
RESULTING POSSIBLE UNFAIRNESS IN ITS APPLICATION.  IT ALLOWS THE TRIAL
COURT TO EXERCISE A JUDICIAL DISCRETION BASED ON THE CIRCUMSTANCES,
INCLUDING DUE CONSIDERATION OF ANY APPLICABLE FORMAL PROCEDURAL RULE. 
IT WOULD PERMIT, FOR EXAMPLE, A COURT TO ATTACH A DIFFERENT WEIGHT TO A
SITUATION IN WHICH THE DEFENDANT KNOWINGLY FAILS TO OBJECT FROM A
SITUATION IN WHICH HIS ATTORNEY ACQUIESCES IN LONG DELAY WITHOUT
ADEQUATELY INFORMING HIS CLIENT, OR FROM A SITUATION IN WHICH NO
COUNSEL IS APPOINTED.  IT WOULD ALSO ALLOW A COURT TO WEIGH THE
FREQUENCY AND FORCE OF THE OBJECTIONS AS OPPOSED TO ATTACHING
SIGNIFICANT WEIGHT TO A PURELY PRO FORMA OBJECTION. 

IN RULING THAT A DEFENDANT HAS SOME RESPONSIBILITY TO ASSERT A
SPEEDY TRIAL CLAIM, WE DO NOT DEPART FROM OUR HOLDINGS IN OTHER CASES
CONCERNING THE WAIVER OF FUNDAMENTAL RIGHTS, IN WHICH WE HAVE PLACED
THE ENTIRE RESPONSIBILITY ON THE PROSECUTION TO SHOW THAT THE CLAIMED
WAIVER WAS KNOWINGLY AND VOLUNTARILY MADE.  SUCH CASES HAVE INVOLVED
RIGHTS WHICH MUST BE EXERCISED OR WAIVED AT A SPECIFIC TIME OR UNDER
CLEARLY IDENTIFIABLE CIRCUMSTANCES, SUCH AS THE RIGHTS TO PLEAD NOT
GUILTY, TO DEMAND A JURY TRIAL, TO EXERCISE THE PRIVILEGE AGAINST SELF
INCRIMINATION, AND TO HAVE THE ASSISTANCE OF COUNSEL.  WE HAVE SHOWN
ABOVE THAT THE RIGHT TO A SPEEDY TRIAL IS UNIQUE IN ITS UNCERTAINTY AS
TO WHEN AND UNDER WHAT CIRCUMSTANCES IT MUST BE ASSERTED OR MAY BE
DEEMED WAIVED.  BUT THE RULE WE ANNOUNCE TODAY, WHICH COMPORTS WITH
CONSTITUTIONAL PRINCIPLES, PLACES THE PRIMARY BURDEN ON THE COURTS AND
THE PROSECUTORS TO ASSURE THAT CASES ARE BROUGHT TO TRIAL.  WE HARDLY
NEED ADD THAT IF DELAY IS ATTRIBUTABLE TO THE DEFENDANT, THEN HIS
WAIVER MAY BE GIVEN EFFECT UNDER STANDARD WAIVER DOCTRINE, THE DEMAND
RULE ASIDE. 

WE, THEREFORE, REJECT BOTH OF THE INFLEXIBLE APPROACHES-- THE FIXED
TIME PERIOD BEFAUSE IT GOES FURTHER THAN THE CONSTITUTION REQUIRES; THE
DEMAND-WAIVER RULE BECAUSE IT IS INSENSITIVE TO A RIGHT WHICH WE HAVE
DEEMED FUNDAMENTAL.  THE APPROACH WE ACCEPT IS A BALANCING TEST, IN
WHICH THE CONDUCT OF BOTH THE PROSECUTION AND THE DEFENDANT ARE
WEIGHED.  /29/

        IV 

A BALANCING TEST NECESSARILY COMPELS COURTS TO APPROACH SPEEDY TRIAL
CASES ON AN AD HOC BASIS.  WE CAN DO LITTLE MORE THAN IDENTIFY SOME OF
THE FACTORS WHICH COURTS SHOULD ASSESS IN DETERMINING WHETHER A
PARTICULAR DEFENDANT HAS BEEN DEPRIVED OF HIS RIGHT.  THOUGH SOME MIGHT
EXPRESS THEM IN DIFFERENT WAYS, WE IDENTIFY FOUR SUCH FACTORS:  LENGTH
OF DELAY, THE REASON FOR THE DELAY, THE DEFENDANT'S ASSERTION OF HIS
RIGHT, AND PREJUDICE TO THE DEFENDANT.  /30/ 

THE LENGTH OF THE DELAY IS TO SOME EXTENT A TRIGGERING MECHANISM. 
UNTIL THERE IS SOME DELAY WHICH IS PRESUMPTIVELY PREJUDICIAL, THERE IS
NO NECESSITY FOR INQUIRY INTO THE OTHER FACTORS THAT GO INTO THE
BALANCE.  NEVERTHELESS, BECAUSE OF THE IMPRECISION OF THE RIGHT TO
SPEEDY TRIAL, THE LENGTH OF DELAY THAT WILL PROVOKE SUCH AN INQUIRY IS
NECESSARILY DEPENDENT UPON THE PECULIAR CIRCUMSTANCES OF THE CASE. 
/31/  TO TAKE BUT ONE EXAMPLE, THE DELAY THAT CAN BE TOLERATED FOR AN
ORDINARY STREET CRIME IS CONSIDERABLY LESS THAN FOR A SERIOUS, COMPLEX
CONSPIRACY CHARGE. 

CLOSELY RELATED TO LENGTH OF DELAY IS THE REASON THE GOVERNMENT
ASSIGNS TO JUSTIFY THE DELAY.  HERE, TOO, DIFFERENT WEIGHTS SHOULD BE
ASSIGNED TO DIFFERENT REASONS.  A DELIBERATE ATTEMPT TO DELAY THE TRIAL
IN ORDER TO HAMPER THE DEFENSE SHOULD BE WEIGHTED HEAVILY AGAINST THE
GOVERNMENT.  /32/  A MORE NEUTRAL REASON SUCH AS NEGLIGENCE OR
OVERCROWDED COURTS SHOULD BE WEIGHTED LESS HEAVILY BUT NEVERTHELESS
SHOULD BE CONSIDERED SINCE THE ULTIMATE RESPONSIBILITY FOR SUCH
CIRCUMSTANCES MUST REST WITH THE GOVERNMENT RATHER THAN WITH THE
DEFENDANT.  FINALLLY, A VALID REASON, SUCH AS A MISSING WITNESS, SHOULD
SERVE TO JUSTIFY APPROPRIATE DELAY. 

WE HAVE ALREADY DISCUSSED THE THIRD FACTOR, THE DEFENDANT'S
RESPONSIBILITY TO ASSERT HIS RIGHT.  WHETHER AND HOW A DEFENDANT
ASSERTS HIS RIGHT IS CLOSELY RELATED TO THE OTHER FACTORS WE HAVE
MENTIONED.  THE STRENGTH OF HIS EFFORTS WILL BE AFFECTED BY THE LENGTH
OF THE DELAY, TO SOME EXTENT BY THE REASON FOR THE DELAY, AND MOST
PARTICULARLY BY THE PERSONAL PREJUDICE, WHICH IS NOT ALWAYS READILY
IDENTIFIABLE, THAT HE EXPERIENCES.  THE MORE SERIOUS THE DEPRIVATION,
THE MORE LIKELY A DEFENDANT IS TO COMPLAIN.  THE DEFENDANT'S ASSERTION
OF HIS SPEEDY TRIAL RIGHT, THEN, IS ENTITLED TO STRONG EVIDENTIARY
WEIGHT IN DETERMINING WHETHER THE DEFENDANT IS BEING DEPRIVED OF THE
RIGHT.  WE EMPHASIZE THAT FAILURE TO ASSERT THE RIGHT WILL MAKE IT
DIFFICULT FOR A DEFENDANT TO PROVE THAT HE WAS DENIED A SPEEDY TRIAL. 

A FOURTH FACTOR IS PREJUDICE TO THE DEFENDANT.  PREJUDICE, OF
COURSE, SHOULD BE ASSESSED IN THE LIGHT OF THE INTERESTS OF DEFENDANTS
WHICH THE SPEEDY TRIAL RIGHT WAS DESIGNED TO PROTECT.  THIS COURT HAS
IDENTIFIED THREE SUCH INTERESTS:  (I) TO PREVENT OPPRESSIVE PRETRIAL
INCARCERATION; (II) TO MINIMIZE ANXIETY AND CONCERN OF THE ACCUSED; AND
(III) TO LIMIT THE POSSIBILITY THAT THE DEFENSE WILL BE IMPAIRED.  /33/
OF THESE, THE MOST SERIOUS IS THE LAST, BECAUSE THE INABILITY OF A
DEFENDANT ADEQUATELY TO PREPARE HIS CASE SKEWS THE FAIRNESS OF THE
ENTIRE SYSTEM.  IF WITNESSES DIE OR DISAPPEAR DURING A DELAY, THE
PREJUDICE IS OBVIOUS.  THERE IS ALSO PREJUDICE IF DEFENSE WITNESSES ARE
UNABLE TO RECALL ACCURATELY EVENTS OF THE DISTANT PAST.  LOSS OF
MEMORY, HOWEVER, IS NOT ALWAYS REFLECTED IN THE RECORD BECAUSE WHAT HAS
BEEN FORGOTTEN CAN RARELY BE SHOWN. 

WE HAVE DISCUSSED PREVIOUSLY THE SOCIETAL DISADVANTAGES OF LENGTHY
PRETRIAL INCARCERATION, BUT OBVIOUSLY THE DISADVANTAGES FOR THE ACCUSED
WHO CANNOT OBTAIN HIS RELEASE ARE EVEN MORE SERIOUS.  THE TIME SPENT IN
JAIL AWAITING TRIAL HAS A DETRIMENTAL IMPACT ON THE INDIVIDUAL.  IT
OFTEN MEANS LOSS OF A JOB; IT DISRUPTS FAMILY LIFE; AND IT ENFORCES
IDLENESS.  MOST JAILS OFFER LITTLE OR NO RECREATIONAL OR REHABILITATIVE
PROGRAMS.  /34/  THE TIME SPENT IN JAIL IS SIMPLY DEAD TIME.  MOREOVER,
IF A DEFENDANT IS LOCKED UP, HE IS HINDERED IN HIS ABILITY TO GATHER
EVIDENCE, CONTACT WITNESSES, OR OTHERWISE PREPARE HIS DEFENSE.  /35/
IMPOSING THOSE CONSEQUENCES ON ANYONE WHO HAS NOT YET BEEN CONVICTED IS
SERIOUS.  IT IS ESPECIALLY UNFORTUNATE TO IMPOSE THEM ON THOSE PERSONS
WHO ARE ULTIMATELY FOUND TO BE INNOCENT.  FINALLY, EVEN IF AN ACCUSED
IS NOT INCARCERATED PRIOR TO TRIAL, HE IS STILL DISADVANTAGED BY
RESTRAINTS ON HIS LIBERTY AND BY LIVING UNDER A CLOUD OF ANXIETY,
SUSPICION, AND OFTEN HOSTILITY.  SEE CASES CITED IN N. 33, SUPRA. 

WE REGARD NONE OF THE FOUR FACTORS IDENTIFIED ABOVE AS EITHER A
NECESSARY OR SUFFICIENT CONDITION TO THE FINDING OF A DEPRIVATION OF
THE RIGHT OF SPEEDY TRIAL.  RATHER, THEY ARE RELATED FACTORS AND MUST
BE CONSIDERED TOGETHER WITH SUCH OTHER CIRCUMSTANCES AS MAY BE
RELEVANT.  IN SUM, THESE FACTORS HAVE NO TALISMANIC QUALITIES; COURTS
MUST STILL ENGAGE IN A DIFFICULT AND SENSITIVE BALANCING PROCESS.  /36/
BUT, BECAUSE WE ARE DEALING WITH A FUNDAMENTAL RIGHT OF THE ACCUSED,
THIS PROCESS MUST BE CARRIED OUT WITH FULL RECOGNITION THAT THE
ACCUSED'S INTEREST IN A SPEEDY TRIAL IS SPECIFICALLY AFFIRMED IN THE
CONSTITUTION. 

        V 

THE DIFFICULTY OF THE TASK OF BALANCING THESE FACTORS IS ILLUSTRATED
BY THIS CASE, WHICH WE CONSIDER TO BE CLOSE.  IT IS CLEAR THAT THE
LENGTH OF DELAY BETWEEN ARREST AND TRIAL-- WELL OVER FIVE YEARS-- WAS
EXTRAORDINARY.  ONLY SEVEN MONTHS OF THAT PERIOD CAN BE ATTRIBUTED TO A
STRONG EXCUSE, THE ILLNESS OF THE EX-SHERIFF WHO WAS IN CHARGE OF THE
INVESTIGATION.  PERHAPS SOME DELAY WOULD HAVE BEEN PERMISSIBLE UNDER
ORDINARY CIRCUMSTANCES, SO THAT MANNING COULD BE UTILIZED AS A WITNESS
IN BARKER'S TRIAL, BUT MORE THAN FOUR YEARS WAS TOO LONG A PERIOD,
PARTICULARLY SINCE A GOOD PART OF THAT PERIOD WAS ATTRIBUTABLE TO THE
COMMONWEALTH'S FAILURE OR INABILITY TO TRY MANNING UNDER CIRCUMSTANCES
THAT COMPORTED WITH DUE PROCESS. 

TWO COUNTERBALANCING FACTORS, HOWEVER, OUTWEIGH THESE DEFICIENCIES. 
THE FIRST IS THAT PREJUDICE WAS MINIMAL.  OF COURSE, BARKER WAS
PREJUDICED TO SOME EXTENT BY LIVING FOR OVER FOUR YEARS UNDER A CLOUD
OF SUSPICION AND ANXIETY.  MOREOVER, ALTHOUGH HE WAS RELEASED ON BOND
FOR MOST OF THE PERIOD, HE DID SPEND 10 MONTHS IN JAIL BEFORE TRIAL. 
BUT THERE IS NO CLAIM THAT ANY OF BARKER'S WITNESSES DIED OR OTHERWISE
BECAME UNAVAILABLE OWING TO THE DELAY.  THE TRIAL TRANSCRIPT INDICATES
ONLY TWO VERY MINOR LAPSES OF MEMORY-- ONE ON THE PART OF A PROSECUTION
WITNESS-- WHICH WERE IN NO WAY SIGNIFICANT TO THE OUTCOME. 

MORE IMPORTANT THAN THE ABSENCE OF SERIOUS PREJUDICE, IS THE FACT
THAT BARKER DID NOT WANT A SPEEDY TRIAL.  COUNSEL WAS APPOINTED FOR
BARKER IMMEDIATELY AFTER HIS INDICTMENT AND REPRESENTED HIM THROUGHOUT
THE PERIOD.  NO QUESTION IS RAISED AS TO THE COMPETENCY OF SUCH
COUNSEL.  /37/  DESPITE THE FACT THAT COUNSEL HAD NOTICE OF THE MOTIONS
FOR CONTINUANCES, /38/  THE RECORD SHOWS NO ACTION WHATEVER TAKEN
BETWEEN OCTOBER 21, 1958, AND FEBRUARY 12, 1962, THAT COULD BE
CONSTRUED AS THE ASSERTION OF THE SPEEDY TRIAL RIGHT.  ON THE LATTER
DATE, IN RESPONSE TO ANOTHER MOTION FOR CONTINUANCE, BARKER MOVED TO
DISMISS THE INDICTMENT.  THE RECORD DOES NOT SHOW ON WHAT GROUND THIS
MOTION WAS BASED, ALTHOUGH IT IS CLEAR THAT NO ALTERNATIVE MOTION WAS
MADE FOR AN IMMEDIATE TRIAL.  INSTEAD THE RECORD STRONGLY SUGGESTS THAT
WHILE HE HOPED TO TAKE ADVANTAGE OF THE DELAY IN WHICH HE HAD
ACQUIESCED, AND THEREBY OBTAIN A DISMISSAL OF THE CHARGES, HE
DEFINITELY DID NOT WANT TO BE TRIED.  COUNSEL CONCEDED AS MUCH AT ORAL
ARGUMENT: 

   "YOUR HONOR, I WOULD CONCEDE THAT WILLIE MAE BARKER PROBABLY--

  I DON'T KNOW THIS FOR A FACT-- PROBABLY DID NOT WANT TO BE

  TRIED.  I DON'T THINK ANY MAN WANTS TO BE TRIED.  AND I DON'T

  CONSIDER THIS A LIABILITY ON HIS BEHALF.  I DON'T BLAME HIM." 

  TR. OF ORAL ARG. 39. 

THE PROBABLE REASON FOR BARKER'S ATTITUDE WAS THAT HE WAS GAMBLING ON
MANNING'S ACQUITTAL.  THE EVIDENCE WAS NOT VERY STRONG AGAINST MANNING,
AS THE REVERSALS AND HUNG JURIES SUGGEST, AND BARKER UNDOUBTEDLY
THOUGHT THAT IF MANNING WERE ACQUITTED, HE WOULD NEVER BE TRIED. 
COUNSEL ALSO CONCEDED THIS: 

     "NOW, IT'S TRUE THAT THE REASON FOR THIS DELAY WAS THE

  COMMONWEALTH OF KENTUCKY'S DESIRE TO SECURE THE TESTIMONY OF THE

  ACCOMPLICE, SILAS MANNING.  AND IT'S TRUE THAT IF SILAS MANNING

WERE NEVER CONVICTED, WILLIE MAE BARKER WOULD NEVER HAVE BEEN

  CONVICTED.  WE CONCEDE THIS.  ID., AT 15.  /39/ 

THAT BARKER WAS GAMBLING ON MANNING'S ACQUITTAL IS ALSO SUGGESTED BY
HIS FAILURE, FOLLOWING THE PRO FORMA MOTION TO DISMISS FILED IN
FEBRUARY 1962, TO OBJECT TO THE COMMONWEALTH'S NEXT TWO MOTIONS FOR
CONTINUANCES.  INDEED, IT WAS NOT UNTIL MARCH 1963, AFTER MANNING'S
CONVICTIONS WERE FINAL, THAT BARKER, HAVING LOST HIS GAMBLE, BEGAN TO
OBJECT TO FURTHER CONTINUANCES.  AT THAT TIME, THE COMMONWEALTH'S
EXCUSE WAS THE ILLNESS OF THE EX-SHERIFF, WHICH BARKER HAS CONCEDED
JUSTIFIED THE FURTHER DELAY.  /40/ 

WE DO NOT HOLD THAT THERE MAY NEVER BE A SITUATION IN WHICH AN
INDICTMENT MAY BE DISMISSED ON SPEEDY TRIAL GROUNDS WHERE THE DEFENDANT
HAS FAILED TO OBJECT TO CONTINUANCES.  THERE MAY BE A SITUATION IN
WHICH THE DEFENDANT WAS REPRESENTED BY INCOMPETENT COUNSEL, WAS
SEVERELY PREJUDICED, OR EVEN CASES IN WHICH THE CONTINUANCES WERE
GRANTED EX PARTE.  BUT BARRING EXTRAORDINARY CIRCUMSTANCES, WE WOULD BE
RELUCTANT INDEED TO RULE THAT A DEFENDANT WAS DENIED THIS
CONSTITUTIONAL RIGHT ON A RECORD THAT STRONGLY INDICATES, AS DOES THIS
ONE, THAT THE DEFENDANT DID NOT WANT A SPEEDY TRIAL.  WE HOLD,
THEREFORE, THAT BARKER WAS NOT DEPRIVED OF HIS DUE PROCESS RIGHT TO A
SPEEDY TRIAL. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              AFFIRMED. 

/1/  THE SIXTH AMENDMENT PROVIDES: 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO
A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND
DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT
SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF
THE NATURE AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE
WITNESSES AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING
WITNESSES IN HIS FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENCE." 

/2/  "WE HOLD HERE THAT THE RIGHT TO A SPEEDY TRIAL IS AS
FUNDAMENTAL AS ANY OF THE RIGHTS SECURED BY THE SIXTH AMENDMENT."  386
U.S.,AT 223. 

/3/  THERE IS NO EXPLANATION IN THE RECORD WHY, ALTHOUGH BARKER'S
INITIAL TRIAL WAS SET FOR OCTOBER 21, NO CONTINUANCE WAS SOUGHT UNTIL
OCTOBER 23, TWO DAYS AFTER THE TRIAL SHOULD HAVE BEGUN. 

/4/  APPARENTLY MANNING CHOSE NOT TO APPEAL THESE FINAL TWO
CONVICTIONS. 

/5/  THE WRITTEN MOTION BARKER FILED ALLEGED THAT HE HAD OBJECTED TO
EVERY CONTINUANCE SINCE FEBRUARY 1959.  THE RECORD DOES NOT REFLECT ANY
OBJECTIONS UNTIL THE MOTION TO DISMISS, FILED IN FEBRUARY 1962, AND THE
OBJECTIONS TO THE CONTINUANCES SOUGHT BY THE COMMONWEALTH IN MARCH 1963
AND JUNE 1963. 

/6/  TR. OF ORAL ARG. 33. 

/7/  REPORT OF THE PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT
OF COLUMBIA 256 (1966). 

/8/  IN WASHINGTON, D.C., IN 1968, 70.1% OF THE PERSONS ARRESTED FOR
ROBBERY AND RELEASED PRIOR TO TRIAL WERE RE-ARRESTED WHILE ON BAIL. 
MITCHELL, BAIL REFORM AND THE CONSTITUTIONALITY OF PRETRIAL DETENTION,
55 VA.L.REV.  1223, 1236 (1969), CITING REPORT OF THE JUDICIAL COUNCIL
COMMITTEE TO STUDY THE OPERATION OF THE BAIL REFORM ACT IN THE DISTRICT
OF COLUMBIA 20-21 (1969). 

/9/  THE NUMBER OF THESE OFFENSES HAS BEEN INCREASING.  SEE ANNUAL
REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED
STATES COURTS, 1971, P. 321. 

/10/  "(IT IS DESIRABLE THAT PUNISHMENT SHOULD FOLLOW OFFENSE AS
CLOSELY AS POSSIBLE; FOR ITS IMPRESSION UPON THE MINDS OF MEN IS
WEAKENED BY DISTANCE, AND, BESIDES, DISTANCE ADDS TO THE UNCERTAINTY OF
PUNISHMENT, BY AFFORDING NEW CHANCES OF ESCAPE."  J. BENTHAM, THE
THEORY OF LEGISLATION 326 (OGDEN ED. 1931). 

/11/  TO ESTABLISH JUSTICE, TO INSURE DOMESTIC TRANQUILITY, FINAL
REPORT OF THE NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF
VIOLENCE 152 (1969). 

/12/  TESTIMONY OF JAMES V. BENNETT, DIRECTOR, BUREAU OF PRISONS,
HEARINGS ON FEDERAL BAIL PROCEDURES BEFORE THE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS AND THE SUBCOMMITTEE ON IMPROVEMENTS IN JUDICIAL
MACHINERY OF THE SENATE COMMITTEE ON THE JUDICIARY, 88TH CONG., 2D
SESS., 46 (1964). 

/13/  E.G., THE "TOMBS" RIOTS IN NEW YORK CITY IN 1970.  N.Y. TIMES,
OCT. 3, 1970, P. 1, COL. 8. 

/14/  THE CHALLENGE OF CRIME IN A FREE SOCIETY, A REPORT BY THE
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE
131 (1967). 

/15/  "(IN LARGE MEASURE BECAUSE OF THE MANY PROCEDURAL SAFEGUARDS
PROVIDED AN ACCUSED, THE ORDINARY PROCEDURES FOR CRIMINAL PROSECUTION
ARE DESIGNED TO MOVE AT A DELIBERATE PACE.  A REQUIREMENT OF
UNREASONABLE SPEED WOULD HAVE A DELETERIOUS EFFECT BOTH UPON THE RIGHTS
OF THE ACCUSED AND UPON THE ABILITY OF SOCIETY TO PROTECT ITSELF." 
UNITED STATES V. EWELL, 383 U.S. 116, 120 (1966). 

/16/  MR. JUSTICE WHITE NOTED IN HIS OPINION FOR THE COURT IN EWELL,
SUPRA, AT 121, THAT OVERZEALOUS APPLICATION OF THIS REMEDY WOULD
INFRINGE "THE SOCIETAL INTEREST IN TRYING PEOPLE ACCUSED OF CRIME,
RATHER THAN GRANTING THEM IMMUNIZATION BECAUSE OF LEGAL ERROR.  . . .
" 

/17/  FOR EXAMPLES, SEE AMERICAN BAR ASSOCIATION PROJECT ON
STANDARDS FOR CRIMINAL JUSTICE, SPEEDY TRIAL 14-16 (APPROVED DRAFT
1968); NOTE, THE RIGHT TO A SPEEDY CRIMINAL TRIAL, 57 COL.L.REV.  846,
863 (1957). 

/18/  SECOND CIRCUIT RULES REGARDING PROMPT DISPOSITION OF CRIMINAL
CASES (1971). 

/19/  ABA PROJECT, SUPRA, N. 17, AT 14.  FOR AN EXAMPLE OF A
PROPOSED STATUTORY RULE, SEE NOTE, THE LAGGING RIGHT TO A SPEEDY TRIAL,
51 VA.L.REV.  1587, 1619 (1965). 

/20/  E.G., PINES V. DISTRICT COURT OF WOODBURY COUNTY, 233 IOWA
1284, 10 N.W.2D 574 (1943).  SEE GENERALLY NOTE, THE RIGHT TO A SPEEDY
CRIMINAL TRIAL, 57 COL.L.REV.  846, 853 (1957); NOTE, THE LAGGING RIGHT
TO A SPEEDY TRIAL, 51 VA.L.REV.  1587, 1601-1602 (1965). 

/21/  SEE STATE V. MALDONADO, 92 ARIZ. 70, 373 P.2D 583 (EN BANC),
CERT. DENIED, 371 U.S. 928 (1962); HICKS V. PEOPLE, 148 COLO. 26, 364
P.2D 877 (1961) (EN BANC); PEOPLE V. PROSSER, 309 N.Y. 353, 130 N.E.2D
891 (1955); ZEHRLAUT V. STATE, 230 IND. 175, 102 N.E.2D 203 (1951);
FLANARY V. COMMONWEALTH, 184 VA. 204, 35 S.E.2D 135 (1945); EX PARTE
CHALFANT, 81 W.VA. 93, 93 S.E. 1032 (1917); STATE V. HESS, 180 KAN.
472, 304 P.2D 474 (1956); STATE V. DODSON, 226 ORE.  458, 360 P.2D 782
(1961).  BUT SEE STATE V. VAWTER, 236 ORE.  85, 386 P.2D 915 (1963). 

/22/  SEE UNITED STATES V. HILL, 310 F.2D 601 (CA4 1962); BRUCE V.
UNITED STATES, 351 F.2D 318 (CA5 1965), CERT. DENIED, 384 U.S. 921
(1966); UNITED STATES V. PEREZ, 398 F.2D 658 (CA7 1968), CERT. DENIED,
393 U.S. 1080 (1969); PIETCH V. UNITED STATES, 110 F.2D 817 (CA10),
CERT. DENIED, 310 U.S. 648 (1940); SMITH V. UNITED STATES, 118
U.S.APP.D.C. 38, 331 F.2D 784 (1964) (EN BANC).  THE OPINION BELOW IN
THIS CASE DEMONSTRATES THAT THE SIXTH CIRCUIT TAKES A SIMILAR
APPROACH. 

AS AN INDICATION OF THE IMPORTANCE WHICH THESE COURTS HAVE ATTACHED
TO THE DEMAND RULE, SEE PEREZ, SUPRA, IN WHICH THE COURT HELD THAT A
DEFENDANT WAIVED ANY SPEEDY TRIAL CLAIM, BECAUSE HE KNEW OF AN
INDICTMENT AND MADE NO DEMAND FOR AN IMMEDIATE TRIAL, EVEN THOUGH THE
RECORD GAVE NO INDICATION THAT HE WAS REPRESENTED BY COUNSEL AT THE
TIME WHEN HE SHOULD HAVE MADE HIS DEMAND, AND EVEN THOUGH HE WAS NOT
INFORMED BY THE COURT OR THE PROSECUTION OF HIS RIGHT TO A SPEEDY
TRIAL. 

/23/  ALTHOUGH STATING THAT THEY RECOGNIZE A DEMAND RULE, THE
APPROACH OF THE EIGHTH AND NINTH CIRCUITS SEEMS TO BE THAT A DENIAL OF
SPEEDY TRIAL CAN BE FOUND DEPSITE AN ABSENCE OF A DEMAND UNDER SOME
CIRCUMSTANCES.  SEE BANDY V. UNITED STATES, 408 F.2D 518 (CA8 1969) (A
PURPOSEFUL OR OPPRESSIVE DELAY MAY OVERCOME A FAILURE TO DEMAND); MOSER
V. UNITED STATES, 381 F.2D 363 (CA9 1967) (DESPITE A FAILURE TO DEMAND,
THE COURT BALANCED OTHER CONSIDERATIONS). 

THE SECOND CIRCUIT'S APPROACH IS UNCLEAR.  THERE ARE CASES IN WHICH A
FAILURE TO DEMAND IS STRICTLY CONSTRUED AS A WAIVER.  E.G., UNITED
STATES V. DEMASI, 445 F.2D 251 (1971).  IN OTHER CASES, THE COURT HAS
SEEMED TO BE WILLING TO CONSIDER CLAIMS IN WHICH THERE WAS NO DEMAND. 
E.G., UNITED STATES EX REL. SOLOMON V. MANCUSI, 412 F.2D 88, CERT.
DENIED, 395 8.S. 936 (1969).  CERTAINLY THE DISTRICT COURTS IN THE
SECOND CIRCUIT HAVE NOT REGARDED THE DEMAND RULE AS BEING RIGID.  SEE
UNITED STATES V. MANN, 291 F.SUPP.  268 (SDNY 1968); UNITED STATES V.
DILLON, 183 F.SUPP.  541 (SDNY 1960). 

THE FIRST CIRCUIT ALSO SEEMS TO REJECT THE MORE RIGID APPROACH. 
COMPARE UNITED STATES V. BUTLER, 426 F.2D 1275 (1970), WITH NEEDEL V.
SCAFATI, 412 F.2D 761, CERT. DENIED, 396 U.S. 861 (1969). 

/24/  SEE N. 2, SUPRA. 

/25/  "IF A DEFENDANT DELIBERATELY BY-PASSES STATE PROCEDURE FOR
SOME STRATEGIC, TACTICAL, OR OTHER REASON, A FEDERAL JUDGE ON HABEAS
CORPUS MAY DENY RELIEF IF HE FINDS THAT THE BY-PASSING WAS THE
CONSIDERED CHOICE OF THE PETITIONER.  THE DEMAND DOCTRINE PRESUPPOSES
THAT FAILURE TO DEMAND TRIAL IS A DELIBERATE CHOICE FOR SUPPOSED
ADVANTAGE ON THE ASSUMPTION THAT DELAY ALWAYS BENEFITS THE ACCUSED, BUT
THE DELAY DOES NOT INHERENTLY BENEFIT THE ACCUSED ANY MORE THAN IT DOES
THE STATE.  CONSEQUENTLY, A MAN SHOULD NOT BE PRESUMED TO HAVE
EXERCISED A DELIBERATE CHOICE BECAUSE OF SILENCE OR INACTION THAT COULD
EQUALLY MEAN THAT HE IS UNAWARE OF THE NECESSITY FOR A DEMAND."  NOTE,
THE LAGGING RIGHT TO A SPEEDY TRIAL, 51 VA.L.REV.  1587, 1610 (1965)
(FOOTNOTES OMITTED). 

/26/  AS MR. CHIEF JUSTICE BURGER WROTE FOR THE COURT IN DICKEY V.
FLORIDA: 

"ALTHOUGH A GREAT MANY ACCUSED PERSONS SEEK TO PUT OFF THE
CONFRONTATION AS LONG AS POSSIBLE, THE RIGHT TO A PROMPT INQUIRY INTO
CRIMINAL CHARGES IS FUNDAMENTAL AND THE DUTY OF THE CHARGING AUTHORITY
IS TO PROVIDE A PROMPT TRIAL."  398 U.S. 30, 37-38 (1970) (FOOTNOTE
OMITTED). 

/27/  AS A CIRCUIT JUDGE, MR. JUSTICE BLACKMUN WROTE: 

"THE GOVERNMENT AND, FOR THAT MATTER, THE TRIAL COURT ARE NOT
WITHOUT RESPONSIBILITY FOR THE EXPEDITIOUS TRIAL OF CRIMINAL CASES. 
THE BURDEN OF TRIAL PROMPTNESS IS NOT SOLELY UPON THE DEFENSE.  THE
RIGHT TO 'A SPEEDY . . . TRIAL' IS CONSTITUTIONALLY GUARANTEED AND, AS
SUCH, IS NOT TO BE HONORED ONLY FOR THE VIGILANT AND THE
KNOWLEDGEABLE."  HODGES V. UNITED STATES, 408 F.2D 543, 551 (CA8
1969). 

/28/  THE AMERICAN BAR ASSOCIATION ALSO REJECTS THE RIGID DEMAND
WAIVER RULE: 

"ONE REASON FOR THIS POSITION IS THAT THERE ARE A NUMBER OF
SITUATIONS, SUCH AS WHERE THE DEFENDANT IS UNAWARE OF THE CHARGE OR
WHERE THE DEFENDANT IS WITHOUT COUNSEL, IN WHICH IT IS UNFAIR TO
REQUIRE A DEMAND.  . . . JURISDICTIONS WITH A DEMAND REQUIREMENT ARE
FACED WITH THE CONTINUING PROBLEM OF DEFINING EXCEPTIONS, A PROCESS
WHICH HAS NOT ALWAYS BEEN CARRIED OUT WITH UNIFORMITY.  . . . MORE
IMPORTANT, THE DEMAND REQUIREMENT IS INCONSISTENT WITH THE PUBLIC
INTEREST IN PROMPT DISPOSITION OF CRIMINAL CASES.  . . . (THE TRIAL OF
A CRIMINAL CASE SHOULD NOT BE UNREASONABLY DELAYED MERELY BECAUSE THE
DEFENDANT DOES NOT THINK THAT IT IS IN HIS BEST INTEREST TO SEEK PROMPT
DISPOSITION OF THE CHARGE."  ABA PROJECT, SUPRA, N. 17, AT 17. 

/29/  NOTHING WE HAVE SAID SHOULD BE INTERPRETED AS DISAPPROVING A
PRESUMPTIVE RULE ADOPTED BY A COURT IN THE EXERCISE OF ITS SUPERVISORY
POWERS WHICH ESTABLISHES A FIXED TIME PERIOD WITHIN WHICH CASES MUST
NORMALLY BE BROUGHT.  SEE N. 18, SUPRA. 

/30/  SEE, E.G., UNITED STATES V. SIMMONS, 338 F.2D 804, 807 (CA2
1964), CERT. DENIED, 380 U.S. 983 (1965); NOTE, THE RIGHT TO A SPEEDY
TRIAL, 20 STAN.L.REV.  476, 478 N. 15 (1968). 

IN HIS CONCURRING OPINION IN DICKEY, MR. JUSTICE BRENNAN IDENTIFIED
THREE FACTORS FOR CONSIDERATION:  THE SOURCE OF THE DELAY, THE REASONS
FOR IT, AND WHETHER THE DELAY PREJUDICED THE INTERESTS PROTECTED BY THE
RIGHT.  398 U.S.,AT 48.  HE INCLUDED CONSIDERATION OF THE DEFENDANT'S
FAILURE TO ASSERT HIS RIGHT IN THE CAUSE-OF-DELAY CATEGORY, AND HE
THOUGHT THE LENGTH OF DELAY WAS RELEVANT PRIMARILY TO THE REASONS FOR
DELAY AND ITS PREJUDICIAL EFFECTS.  ID., N. 12.  IN ESSENCE, HOWEVER,
THERE IS LITTLE DIFFERENCE BETWEEN HIS APPROACH AND THE ONE WE ADOPT
TODAY.  SEE ALSO NOTE, THE RIGHT TO A SPEEDY TRIAL, SUPRA, FOR ANOTHER
SLIGHTLY DIFFERENT APPROACH. 

/31/  FOR EXAMPLE, THE FIRST CIRCUIT THOUGHT A DELAY OF NINE MONTHS
OVERLY LONG, ABSENT A GOOD REASON, IN A CASE THAT DEPENDED ON EYE
WITNESS TESTIMONY.  UNITED STATES V. BUTLER, 426 F.2D 1275, 1277
(1970).     /32/  WE HAVE INDICATED ON PREVIOUS OCCASIONS THAT IT IS
IMPROPER FOR THE PROSECUTION INTENTIONALLY TO DELAY "TO GAIN SOME
TACTICAL ADVANTAGE OVER (DEFENDANTS) OR TO HARASS THEM."  UNITED STATES
V. MARION, 404 U.S. 307, 325 (1971).  SEE POLLARD V. UNITED STATES, 352
U.S. 354, 361 (1957). 

/33/  UNITED STATES V. EWELL, 383 U.S.,AT 120; SMITH V. HOOEY, 393
U.S. 374, 377-378 (1969).  IN KLOPFER V. NORTH CAROLINA, 386 U.S. 213,
221-222 (1967), WE INDICATED THAT A DEFENDANT AWAITING TRIAL ON BOND
MIGHT BE SUBJECTED TO PUBLIC SCORN, DEPRIVED OF EMPLOYMENT, AND CHILLED
IN THE EXERCISE OF HIS RIGHT TO SPEAK FOR, ASSOCIATE WITH, AND
PARTICIPATE IN UNPOPULAR POLITICAL CAUSES. 

/34/ SEE TO ESTABLISH JUSTICE, TO INSURE DOMESTIC TRANQUILITY, FINAL
REPORT OF THE NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF
VIOLENCE 152 (1969). 

/35/  THERE IS STATISTICAL EVIDENCE THAT PERSONS WHO ARE DETAINED
BETWEEN ARREST AND TRIAL ARE MORE LIKELY TO RECEIVE PRISON SENTENCES
THAN THOSE WHO OBTAIN PRETRIAL RELEASE, ALTHOUGH OTHER FACTORS BEAR
UPON THIS CORRELATION.  SEE WALD, PRETRIAL DETENTION AND ULTIMATE
FREEDOM:  A STATISTICAL STUDY, 39 N.Y.U.L.REV.  631 (1964). 

/36/  FOR AN EXAMPLE OF HOW THE SPEEDY TRIAL ISSUE SHOULD BE
APPROACHED, SEE JUDGE FRANKEL'S EXCELLENT OPINION IN UNITED STATES V.
MANN, 291 F.SUPP.  268 (SDNY 1968). 

/37/  TR. OF ORAL ARG. 39. 

/38/  ID., AT 4. 

/39/  HINDSIGHT IS, OF COURSE, 20/20, BUT WE CANNOT HELP NOTING THAT
IF BARKER HAD MOVED IMMEDIATELY AND PERSISTENTLY FOR A SPEEDY TRIAL
FOLLOWING INDICTMENT, AND IF HE HAD BEEN SUCCESSFUL, HE WOULD HAVE
UNDOUBTEDLY BEEN ACQUITTED SINCE MANNING'S TESTIMONY WAS CRUCIAL TO THE
COMMONWEALTH'S CASE.  IT COULD NOT HAVE BEEN ANTICIPATED AT THE OUTSET,
HOWEVER, THAT MANNING WOULD HAVE BEEN TRIED SIX TIMES OVER A FOUR-YEAR
PERIOD.  THUS, THE DECISION TO GAMBLE ON MANNING'S ACQUITTAL MAY HAVE
BEEN A PRUDENT CHOICE AT THE TIME IT WAS MADE. 

/40/  AT ORAL ARGUMENT, COUNSEL FOR BARKER STATED: 

"THAT WAS AFTER THE SHERIFF, THE MATERIAL WITNESS, WAS ILL; THE MAN
WHO HAD ARRESTED THE PETITIONER, YES.  AND THE SIXTH CIRCUIT HELD THAT
THIS WAS A SUFFICIENT REASON FOR DELAY, AND WE DON'T DENY THIS.  WE
CONCEDE THAT THIS WAS SUFFICIENT FOR THE DELAY FROM MARCH 1963 TO
OCTOBER, BUT IT DOES NOT EXPLAIN THE DELAYS PRIOR TO THAT."  TR. OF
ORAL ARG. 19-20. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN JOINS, CONCURRING. 

ALTHOUGH THE COURT REJECTS PETITIONER'S SPEEDY TRIAL CLAIM AND
AFFIRMS DENIAL OF HIS PETITION FOR HABEAS CORPUS, IT IS APPARENT THAT
HAD BARKER NOT SO CLEARLY ACQUIESCED IN THE MAJOR DELAYS INVOLVED IN
THIS CASE, THE RESULT WOULD HAVE BEEN OTHERWISE.  FROM THE
COMMONWEALTH'S POINT OF VIEW, IT IS FORTUNATE THAT THE CASE WAS SET FOR
EARLY TRIAL AND THAT POSTPONEMENTS TOOK PLACE ONLY UPON FORMAL REQUESTS
TO WHICH BARKER HAD OPPORTUNITY TO OBJECT. 

BECAUSE THE COURT BROADLY ASSAYS THE FACTORS GOING INTO
CONSTITUTIONAL JUDGMENTS UNDER THE SPEEDY TRIAL PROVISION, IT IS
APPROPRIATE TO EMPHASIZE THAT ONE OF THE MAJOR PURPOSES OF THE
PROVISION IS TO GUARD AGAINST INORDINATE DELAY BETWEEN PUBLIC CHARGE
AND TRIAL, WHICH, WHOLLY ASIDE FROM POSSIBLE PREJUDICE TO A DEFENSE ON
THE MERITS, MAY "SERIOUSLY INTERFERE WITH THE DEFENDANT'S LIBERTY,
WHETHER HE IS FREE ON BAIL OR NOT, AND THAT MAY DISRUPT HIS EMPLOYMENT,
DRAIN HIS FINANCIAL RESOURCES, CURTAIL HIS ASSOCIATIONS, SUBJECT HIM TO
PUBLIC OBLOQUY, AND CREATE ANXIETY IN HIM, HIS FAMILY AND HIS
FRIENDS."  UNITED STATES V. MARION, 404 U.S. 307, 320 (1971).  THESE
FACTORS ARE MORE SERIOUS FOR SOME THAN FOR OTHERS, BUT THEY ARE
INEVITABLY PRESENT IN EVERY CASE TO SOME EXTENT, FOR EVERY DEFENDANT
WILL EITHER BE INCARCERATED PENDING TRIAL OR ON BAIL SUBJECT TO
SUBSTANTIAL RESTRICTIONS ON HIS LIBERTY.  IT IS ALSO TRUE THAT MANY
DEFENDANTS WILL BELIEVE THAT TIME IS ON THEIR SIDE AND WILL PREFER TO
SUFFER WHATEVER DISADVANTAGES DELAY MAY ENTAIL.  BUT, FOR THOSE WHO
DESIRE AN EARLY TRIAL, THESE PERSONAL FACTORS SHOULD PREVAIL IF THE
ONLY COUNTERVAILING CONSIDERATIONS OFFERED BY THE STATE ARE THOSE
CONNECTED WITH CROWDED DOCKETS AND PROSECUTORIAL CASE LOADS.  A
DEFENDANT DESIRING A SPEEDY TRIAL, THEREFORE, SHOULD HAVE IT WITHIN
SOME REASONABLE TIME; AND ONLY SPECIAL CIRCUMSTANCES PRESENTING A MORE
PRESSING PUBLIC NEED WITH RESPECT TO THE CASE ITSELF SHOULD SUFFICE TO
JUSTIFY DELAY.  ONLY IF SUCH SPECIAL CONSIDERATIONS ARE IN THE CASE AND
IF THEY OUTWEIGH THE INEVITABLE PERSONAL PREJUDICE RESULTING FROM DELAY
WOULD IT BE NECESSARY TO CONSIDER WHETHER THERE HAS BEEN OR WOULD BE
PREJUDICE TO THE DEFENSE AT TRIAL.  "(THE MAJOR EVILS PROTECTED AGAINST
BY THE SPEEDY TRIAL GUARANTEE EXIST QUITE APART FROM ACTUAL OR POSSIBLE
PREJUDICE TO AN ACCUSED'S DEFENSE."  UNITED STATES V. MARION, SUPRA, AT
320. 

OF COURSE, CASES WILL DIFFER AMONG THEMSELVES AS TO THE ALLOWABLE
TIME BETWEEN CHARGE AND TRIAL SO AS TO PERMIT PROSECUTION AND DEFENSE
ADEQUATELY TO PREPARE THEIR CASE.  BUT UNREASONABLE DELAY IN RUN-OF-THE
MILL CRIMINAL CASES CANNOT BE JUSTIFIED BY SIMPLY ASSERTING THAT THE
PUBLIC RESOURCES PROVIDED BY THE STATE'S CRIMINAL-JUSTICE SYSTEM ARE
LIMITED AND THAT EACH CASE MUST AWAIT ITS TURN.  AS THE COURT POINTS
OUT, THIS APPROACH ALSO SUBVERTS THE STATE'S OWN GOALS IN SEEKING TO
ENFORCE ITS CRIMINAL LAWS. 

JAMES E. MILLIMAN ARGUED THE CAUSE FOR PETITIONER PRO HAC VICE. 
WITH HIM ON THE BRIEF WERE NORVIE L. LAY AND J. CHESTER PORTER. 

ROBERT W. WILLMOTT, JR., ASSISTANT ATTORNEY GENERAL OF KENTUCKY,
ARGUED THE CAUSE FOR RESPONDENT PRO HAC VICE.  WITH HIM ON THE BRIEF
WAS ED W. HANCOCK, ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE WERE FILED BY SOLICITOR GENERAL GRISWOLD FOR
THE UNITED STATES, AND BY THOMAS D. BARR FOR THE LAWYERS COMMITTEE FOR
CIVIL RIGHTS UNDER LAW. 
..END :














CENTRAL HARDWARE CO. V. NLRB, 407 U.S. 539 


       CENTRAL HARDWARE CO. V. NATIONAL LABOR RELATIONS BOARD ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 70-223.  ARGUED APRIL 18, 1972-- DECIDED JUNE 22, 1972 


PETITIONER HAD A RULE AGAINST SOLICITATIONAL ACTIVITIES IN ITS STORES
AND PARKING LOTS.  THE PARKING LOTS ARE APPURTENANT TO PETITIONER'S
FREE-STANDING STORES AND DO NOT SERVE OTHER RETAIL ESTABLISHMENTS. 
UNION ORGANIZERS USED PETITIONER'S PARKING LOTS TO SOLICIT PETITIONER'S
EMPLOYEES TO JOIN THE UNION, AND PETITIONER ORDERED THE ORGANIZERS OFF
ITS PROPERTY.  THE UNION FILED UNFAIR LABOR PRACTICE CHARGES AGAINST
PETITIONER.  THE NATIONAL LABOR RELATIONS BOARD (NLRB) HELD THAT
ENFORCEMENT OF PETITIONER'S NO-SOLICITATION RULE, WHICH IT FOUND WAS
OVERLY BROAD, VIOLATED SEC. 8(A)(1) OF THE NATIONAL LABOR RELATIONS
ACT, WHICH PROSCRIBES INTERFERENCE WITH EMPLOYEES' SEC. 7
ORGANIZATIONAL RIGHTS.  THE NLRB CONCLUDED THAT THE CHARACTER AND USE
OF THE LOTS DISTINGUISHED THE CASE FROM NLRB V. BABCOCK & WILCOX CO.,
351 U.S. 105, WHICH REQUIRED A "YIELDING" OF THE EMPLOYER'S PROPERTY
RIGHTS IN THE CONTEXT OF AN ORGANIZATIONAL CAMPAIGN ONLY "WHEN THE
INACCESSIBILITY OF EMPLOYEES MAKES INEFFECTIVE THE REASONABLE ATTEMPTS
BY NONEMPLOYEES TO COMMUNICATE WITH THEM THROUGH THE USUAL CHANNELS.  .
. . " ID., AT 112.  INSTEAD, THE NLRB HELD APPLICABLE FOOD EMPLOYEES V.
LOGAN VALLEY PLAZA, 391 U.S. 308, WHERE PEACEFUL PICKETING BY UNION
AGENTS ON A PARKING LOT WITHIN A SHOPPING CENTER WAS HELD, UNDER THE
CIRCUMSTANCES EXISTING, TO BE WITHIN THE PROTECTION OF THE FIRST
AMENDMENT.  THE COURT OF APPEALS, AGREEING, ORDERED ENFORCEMENT OF THE
NLRB'S ORDER.  HELD:  LOGAN VALLEY, DECIDED ON CONSTITUTIONAL GROUNDS,
IS NOT APPLICABLE TO THIS SEC. 7 CASE, WHICH THE COURT OF APPEALS
SHOULD NOT RECONSIDER IN THE LIGHT OF BABCOCK.  PP. 542-548. 

439 F.2D 1321, VACATED AND REMANDED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED. 
MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN,
JJ., JOINED, POST, P. 548. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

PETITIONER, CENTRAL HARDWARE CO. (CENTRAL), OWNS AND OPERATES TWO
RETAIL HARDWARE STORES IN INDIANAPOLIS, INDIANA.  EACH STORE IS HOUSED
IN A LARGE BUILDING, CONTAINING 70,000 SQUARE FEET OF FLOOR SPACE, AND
HOUSING NO OTHER RETAIL ESTABLISHMENTS.  THE STORES ARE SURROUNDED ON
THREE SIDES BY AMPLE PARKING FACILITIES, ACCOMMODATING APPROXIMATELY
350 AUTOMOBILES.  THE PARKING LOTS ARE OWNED BY CENTRAL, AND ARE
MAINTAINED SOLELY FOR THE USE OF CENTRAL'S CUSTOMERS AND EMPLOYEES. 
WHILE THERE ARE OTHER RETAIL ESTABLISHMENTS IN THE VICINITY OF
CENTRAL'S STORES, THESE ESTABLISHMENTS ARE NOT A PART OF A SHOPPING
CENTER COMPLEX, AND THEY MAINTAIN THEIR OWN SEPARATE PARKING LOTS. 

APPROXIMATELY A WEEK BEFORE CENTRAL OPENED ITS STORES, THE RETAIL
CLERKS UNION, LOCAL 725, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL
CIO (THE UNION), BEGAN AN ORGANIZATION CAMPAIGN AT BOTH STORES.  THE
CAMPAIGN CONSISTED PRIMARILY OF SOLICITATION BY NONEMPLOYEE UNION
ORGANIZERS ON CENTRAL'S PARKING LOTS.  THE NONEMPLOYEEE ORGANIZERS
CONFRONTED CENTRAL'S EMPLOYEES IN THE PARKING LOTS AND SOUGHT TO
PERSUADE THEM TO SIGN CARDS AUTHORIZING THE UNION TO REPRESENT THEM IN
AN APPROPRIATE BARGAINING UNIT.  AS A PART OF THE ORGANIZATION
CAMPAIGN, AN "UNDERCOVER AGENT FOR THE UNION" WAS INFILTRATED INTO THE
EMPLOY OF CENTRAL, RECEIVING FULL-TIME SALARY FROM BOTH THE UNION AND
THE COMPANY.  THIS AGENT SOLICITED EMPLOYEES TO JOIN THE UNION, AND
OBTAINED A LIST OF THE EMPLOYEES OF THE TWO STORES WHICH WAS ABOUT 80%
COMPLETE. 

CENTRAL HAD A NO-SOLICIATION RULE WHICH IT ENFORCED AGAINST ALL
SOLICITATIONAL ACTIVITIES IN ITS STORES AND ON ITS PARKING LOTS.  A
NUMBER OF EMPLOYEES COMPLAINED TO CENTRAL'S LOCAL MANAGEMENT THAT THEY
WERE BEING HARASSED BY THE ORGANIZERS, AND THESE COMPLAINTS WERE
FORWARDED TO CENTRAL'S CORPORATE HEADQUARTERS IN ST. LOUIS, MISSOURI. 
THE ST. LOUIS OFFICIALS DIRECTED THE INDIANAPOLIS MANAGEMENT TO ENFORCE
THE NONEMPLOYEE NO-SOLICITATION RULE AND KEEP ALL UNION ORGANIZERS OFF
THE COMPANY PREMISES, INCLUDING THE PARKING LOTS.  ALTHOUGH MOST OF THE
NONEMPLOYEE UNION ORGANIZERS HAD EITHER LEFT INDIANAPOLIS OR CEASED
WORK ON THE CENTRAL ORGANIZATION CAMPAIGN, THE INDIANAPOLIS MANAGEMENT
HAD OCCASION TO ASSERT THE NONEMPLOYEE NO-SOLICITATION RULE ON SEVERAL
OCCASIONS. 

ONE ARREST WAS MADE WHEN A FIELD ORGANIZER FOR THE UNION WAS
CONFRONTED BY THE MANAGER OF ONE OF THE STORES ON ITS PARKING LOT, AND
REFUSED TO LEAVE AFTER BEING REQUESTED TO DO SO.  THE FIELD ORGANIZER
ASSERTED THAT HE WAS A "CUSTOMER" AND INSISTED UPON ENTERING THE
STORE.  THE POLICE WERE CALLED, AND WHEN THE ORGANIZER PERSISTED IN HIS
REFUSAL TO LEAVE, HE WAS ARRESTED. 

SHORTLY AFTER CENTRAL RECEIVED COMPLAINTS FROM ITS EMPLOYEES AS TO
HARASSMENTS BY THE ORGANIZERS, CENTRAL FILED UNFAIR LABOR PRACTICE
CHARGES AGAINST THE UNION.  THE UNION SUBSEQUENTLY FILED UNFAIR LABOR
PRACTICE CHARGES AGAINST CENTRAL.  AFTER AN INVESTIGATION, THE GENERAL
COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD (THE BOARD) DISMISSED
CENTRAL'S CHARGES AGAINST THE UNION, AND ISSUED A COMPLAINT AGAINST
CENTRAL ON THE UNION'S CHARGES. 

THE BOARD HELD THAT CENTRAL'S NONEMPLOYEE NO-SOLICITATION RULE WAS
OVERLY BROAD, AND THAT ITS ENFORCEMENT VIOLATED SEC. 8(A)(1) OF THE
NATIONAL LABOR RELATIONS ACT.  THE BOARD REASONED THAT THE CHARACTER
AND USE OF CENTRAL'S PARKING LOTS DISTINGUISHED THE CASE FROM NLRB V.
BABCOCK & WILCOX CO., 351 U.S. 105 (1956), AND BROUGHT IT WITHIN THE
PRINCIPLE OF AMALGAMATED FOOD EMPLOYEES UNION V. LOGAN VALLEY PLAZA,
391 U.S. 308 (1968).  181 N.L.R.B. 491 (1970).  A DIVIDED COURT OF
APPEALS FOR THE EIGHTH CIRCUIT AGREED, AND ORDERED ENFORCEMENT OF THE
BOARD'S ORDER ENJOINING CENTRAL FROM ENFORCING ANY RULE PROHIBITING
NONEMPLOYEE UNION ORGANIZERS FROM USING ITS PARKING LOTS TO SOLICIT
EMPLOYEES ON BEHALF OF THE UNION.  439 F.2D 1321 (1971).  WE GRANTED
CERTIORARI TO CONSIDER WHETHER THE PRINCIPLE OF LOGAN VALLEY IS
APPLICABLE TO THIS CASE.  404 U.S. 1014 (1972).  WE CONCLUDE THAT IT IS
NOT. 

I 

140, 29 U.S.C. 157, GUARANTEES TO EMPLOYEES THE RIGHT "TO SELF
ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS."  THIS
GUARANTEE INCLUDES BOTH THE RIGHT OF UNION OFFICIALS TO DISCUSS
ORGANIZATION WITH EMPLOYEES, AND THE RIGHT OF EMPLOYEES TO DISCUSS
ORGANIZATION AMONG THEMSELVES.  /1/  SECTION 8(A)(1) OF THE ACT, AS
AMENDED, 29 U.S.C. 158(A)(1), MAKES IT AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER "TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE
EXERCISE OF THE RIGHTS GUARANTEED" IN SEC. 7.  BUT ORGANIZATION RIGHTS
ARE NOT VIABLE IN A VACUUM; THEIR EFFECTIVENESS DEPENDS IN SOME MEASURE
ON THE ABILITY OF EMPLOYEES TO LEARN THE ADVANTAGES AND DISADVANTAGES
OF ORGANIZATION FROM OTHERS.  EARLY IN THE HISTORY OF THE
ADMINSITRATION OF THE ACT THE BOARD RECOGNIZED THE IMPORTANCE OF
FREEDOM OF COMMUNICATION TO THE FREE EXERCISE OF ORGANIZATION RIGHTS. 
SEE PEYTON PACKING CO., 49 N.L.R.B. 828 (1943), ENFORCED, 142 F.2D 1009
(CA5), CERT. DENIED, 323 U.S. 730 (1944). 

IN SEEKING TO PROVIDE INFORMATION ESSENTIAL TO THE FREE EXERCISE OF
ORGANIZATION RIGHTS, UNION ORGANIZERS HAVE OFTEN ENGAGED IN CONDUCT
INCONSISTENT WITH TRADITIONAL NOTIONS OF PRIVATE PROPERTY RIGHTS.  THE
BOARD AND THE COURTS HAVE THE DUTY TO RESOLVE CONFLICTS BETWEEN
ORGANIZATION RIGHTS AND PROPERTY RIGHTS, AND TO SEEK A PROPER
ACCOMMODATION BETWEEN THE TWO.  THIS COURT ADDRESSED THE CONFLICT WHICH
OFTEN ARISES BETWEEN ORGANIZATION RIGHTS AND PROPERTY RIGHTS IN NLRB V.
BABCOCK & WILCOX CO., 351 U.S. 105 (1956).  THE BABCOCK & WILCOX CO.
OPERATED A MANUFACTURING PLANT ON A 100-ACRE TRACT ABOUT ONE MILE FROM
A COMMUNITY OF 21,000 PEOPLE.  THE PLANT BUILDINGS WERE ENCLOSED WITHIN
A FENCE, EMPLOYEE ACCESS BEING THROUGH SEVERAL GATES.  APPROXIMATELY
90% OF THE EMPLOYEES DROVE TO WORK IN PRIVATE CARS, AND THE COMPANY
MAINTAINED A PARKING LOT FOR THE EMPLOYEES.  ONLY EMPLOYEES AND
DELIVERYMEN NORMALLY USED THE PARKING LOT.  THE COMPANY HAD A RULE
FORBIDDING THE DISTRIBUTION OF LITERATURE ON COMPANY PROPERTY.  THE
BOARD FOUND THAT THE COMPANY'S PARKING LOT AND THE WALKWAY LEADING FROM
IT TO THE PLANT ENTRANCE WERE THE ONLY "SAFE AND PRACTICABLE" PLACES IN
THE VICINITY OF THE PLANT FOR DISTRIBUTION OF UNION LITERATURE, AND
HELD THE COMPANY GUILTY OF AN UNFAIR LABOR PRACTICE FOR ENFORCING THE
NO-DISTRIBUTION RULE AND THEREBY DENYING UNION ORGANIZERS LIMITED
ACCESS TO COMPANY PROPERTY.  THE BOARD ORDERED THE COMPANY TO RESCIND
ITS NO-DISTRIBUTION RULE INSOFAR AS IT RELATED TO NONEMPLOYEE UNION
REPRESENTATIVES SEEKING TO DISTRIBUTE UNION LITERATURE ON THE PARKING
LOT AND WALKWAY AREA.  /2/ 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REFUSED ENFORCEMENT OF
THE BOARD'S ORDER ON THE GROUND THAT THE ACT DID NOT AUTHORIZE THE
BOARD TO IMPOSE A SERVITUDE ON AN EMPLOYER'S PROPERTY WHERE NO EMPLOYEE
WAS INVOLVED.  /3/  THIS COURT AFFIRMED ON THE GROUND THAT THE
AVAILABILITY OF ALTERNATIVE CHANNELS OF COMMUNICATION MADE THE
INTRUSION ON THE EMPLOYER'S PROPERTY RIGHTS ORDERED BY THE BOARD
UNWARRANTED.  THE COURT IN BABCOCK STATED THE GUIDING PRINCIPLE FOR
ADJUSTING CONFLICTS BETWEEN SEC. 7 RIGHTS AND PROPERTY RIGHTS: 

"ORGANIZATION RIGHTS ARE GRANTED TO WORKERS BY THE SAME AUTHORITY, THE
NATIONAL GOVERNMENT, THAT PRESERVES PROPERTY RIGHTS.  ACCOMMODATION
BETWEEN THE TWO MUST BE OBTAINED WITH AS LITTLE DESTRUCTION OF ONE AS
IS CONSISTENT WITH THE MAINTENANCE OF THE OTHER.  THE EMPLOYER MAY NOT
AFFIRMATIVELY INTEFERE WITH ORGANIZATION; THE UNION MAY NOT ALWAYS
INSIST THAT THE EMPLOYER AID ORGANIZATION.  UBT WHEN THE
INACCESSIBILITY OF EMPLOYEES MAKES INEFFECTIVE THE REASONABLE ATTEMPTS
BY NONEMPLOYEES TO COMMUNICATE WITH THEM THROUGH THE USUAL CHANNELS,
THE RIGHT TO EXCLUDE FROM PROPERTY HAS BEEN REQUIRED TO YIELD TO THE
EXTENT NEEDED TO PERMIT COMMUNICATION OF INFORMATION ON THE RIGHT TO
ORGANIZE."  351 U.S.,AT 112. 

THE PRINCIPLE OF BABCOCK IS LIMITED TO THIS ACCOMMODATION BETWEEN
ORGANIZATION RIGHTS AND PROPERTY RIGHTS.  THIS PRINCIPLE REQUIRES A
"YIELDING" OF PROPERTY RIGHTS ONLY IN THE CONTEXT OF AN ORGANIZATION
CAMPAIGN.  MOREOVER, THE ALLOWED INTRUSTION ON PROPERTY RIGHTS IS
LIMITED TO THAT NECESSARY TO FACILITATE THE EXERCISE OF EMPLOYEES' SEC.
7 RIGHTS.  AFTER THE REQUISITE NEED FOR ACCESS TO THE EMPLOYER'S
PROPERTY HAS BEEN SHOWN, THE ACCESS IS LIMITED TO (I) UNION ORGANIZERS;
(II) PRESCRIBED NONWORKING AREAS OF EMPLOYER'S PREMISES; AND (III) THE
DURATION OF ORGANIZATION ACTIVITY.  IN SHORT, THE PRINCIPLE OF
ACCOMMODATION ANNOUNCED IN BABCOCK IS LIMITED TO LABOR ORGANIZATION
CAMPAIGNS, AND THE "YIELDING" OF PROPERTY RIGHTS IT MAY REQUIRE IS BOTH
TEMPORARY AND MINIMAL. 

        II 

THE PRINCIPLE APPLIED IN AMALGAMATED FOOD EMPLOYEES UNION V. LOGAN
VALLEY PLAZA, 392 U.S. 308 (1968), IS QUITE DIFFERENT.  WHILE IT IS
TRUE THAT LOGAN VALLEY INVOLVED LABOR PICKETING, THE DECISION RESTS ON
CONSTITUTIONAL GROUNDS; IT IS NOT A SEC. 7 CASE. 

LOGAN VALLEY HAD ITS GENESIS IN MARSH V. ALABAMA, 326 U.S. 501
(1946).  MARSH INVOLVED A "COMPANY TOWN," AN ECONOMIC ANACHRONISM
RARELY ENCOUNTERED TODAY.  THE TOWN WAS WHOLLY OWNED BY THE GULF
SHIPBUILDING CORP., YET IT HAD ALL OF THE CHARACTERISTICS OF ANY OTHER
AMERICAN TOWN.  GULF SHIPBUILDING HELD TITLE TO ALL THE LAND IN THE
TOWN, INCLUDING THAT COVERED BY STREETS AND SIDEWALKS.  GULF
SHIPBUILDING ALSO PROVIDED MUNICIPAL SERVICES, SUCH AS SEWERAGE SERVICE
AND POLICE PROTECTION, TO THE RESIDENTS OF THE TOWN.  A JEHOVAH'S
WITNESS UNDERTOOK TO DISTRIBUTE RELIGIOUS LITERATURE ON A SIDEWALK NEAR
THE POST OFFICE IN THE "BUSINESS BLOCK" OF THE TOWN, AND WAS ARRESTED
ON A TRESPASSING CHARGE.  SHE WAS SUBSEQUENTLY CONVICTED OF THE CRIME
OF TRESPASSING, AND THE ALABAMA COURTS UPHELD THE CONVICTION ON
APPEAL.  THIS COURT REVERSED, HOLDING THAT ALABAMA COULD NOT PERMIT A
CORPORATION TO ASSUME THE FUNCTIONS OF A MUNICIPAL GOVERNMENT AND AT
THE SAME TIME DENY FIRST AMENDMENT RIGHTS THROUGH THE APPLICATION OF
THE STATE'S CRIMINAL TRESPASS LAW. 

IN LOGAN VALLEY, OVER A STRONG DISSENT BY MR. JUSTICE BLACK, THE
AUTHOR OF MARSH, THE COURT APPLIED THE REASONING OF MARSH TO A MODERN
ECONOMIC PHENOMENON, THE SHOPPING CENTER COMPLEX.  THE LOGAN VALLEY
MALL WAS A COMPLEX OF RETAIL ESTABLISHMENTS, WHICH THE COURT REGARDED
UNDER THE FACTUAL CIRCUMSTANCES AS THE FUNCTIONAL EQUIVALENT OF THE
"COMMUNITY BUSINESS BLOCK" OF THE COMPANY TOWN IN MARSH.  THE CORPORATE
OWNER OF LOGAN VALLEY MALL OBTAINED A STATE COURT INJUNCTION AGAINST
PEACEFUL PICKETING ON THE SHOPPING CENTER PROPERTY, AND THE
PENNSYLVANIA SUPREME COURT AFFIRMED THE ISSUANCE OF THE INJUNCTION ON
THE GROUND THAT THE PICKETING CONSTITUTED A TRESPASS ON PRIVATE
PROPERTY.  THIS COURT REVERSED, HOLDING THAT PENNSYLVANIA COULD NOT
"DELEGATE THE POWER, THROUGH THE USE OF ITS TRESPASS LAWS, WHOLLY TO
EXCLUDE THOSE MEMBERS OF THE PUBLIC WISHING TO EXERCISE THEIR FIRST
AMENDMENT RIGHTS ON THE PREMISES IN A MANNER AND FOR A PURPOSE
GENERALLY CONSONANT WITH THE USE TO WHICH THE PROPERTY IS ACTUALLY
PUT."  391 U.S.,AT 319-320. 

        III 

THE BOARD AND THE COURT OF APPEALS HELD THAT LOGAN VALLEY RATHER
THAN BABCOCK CONTROLLED THIS CASE.  THE BOARD ASSERTS THAT THE
DISTINGUISHING FEATURE BETWEEN THESE TWO CASES IS THAT IN LOGAN VALLEY
THE OWNER HAD "DILUTED HIS PROPERTY INTEREST BY OPENING HIS PROPERTY TO
THE GENERAL PUBLIC FOR HIS OWN ECONOMIC ADVANTAGE."  /4/  THE EMPHASIS,
BOTH IN THE ARGUMENT ON BEHALF OF THE BOARD AND IN THE OPINION BELOW,
IS ON THE OPENING OF THE PROPERTY "TO THE GENERAL PUBLIC."  /5/ 

THIS ANALYSIS MISCONCEIVES THE RATIONALE OF LOGAN VALLEY.  /6/
LOGAN VALLEY INVOLVED A LARGE COMMERCIAL SHOPPING CENTER WHICH THE
COURT FOUND HAD DISPLACED, IN CERTAIN RELEVANT RESPECTS, THE FUNCTIONS
OF THE NORMAL MUNICIPAL "BUSINESS BLOCK."  FIRST AND FOURTEENTH
AMENDMENT FREE-SPEECH RIGHTS WERE DEEMED INFRINGED UNDER THE FACTS OF
THAT CASE WHEN THE PROPERTY OWNER INVOKED THE TRESPASS LAWS OF THE
STATE AGAINST THE PICKETS. 

BEFORE AN OWNER OF PRIVATE PROPERTY CAN BE SUBJECTED TO THE COMMANDS
OF THE FIRST AND FOURTEENTH AMENDMENTS THE PRIVATELY OWNED PROPERTY
MUST ASSUME TO SOME SIGNIFICANT DEGREE THE FUNCTIONAL ATTRIBUTES OF
PUBLIC PROPERTY DEVOTED TO PUBLIC USE.  THE FIRST AND FOURTEENTH
AMENDMENTS ARE LIMITATIONS ON STATE ACTION, NOT ON ACTION BY THE OWNER
OF PRIVATE PROPERTY USED ONLY FOR PRIVATE PURPOSES.  THE ONLY FACT
RELIED UPON FOR THE ARGUMENT THAT CENTRAL'S PARKING LOTS HAVE ACQUIRED
THE CHARACTERISTICS OF A PUBLIC MUNICIPAL FACILITY IS THAT THEY ARE
"OPEN TO THE PUBLIC."  SUCH AN ARGUMENT COULD BE MADE WITH RESPECT TO
ALMOST EVERY RETAIL AND SERVICE ESTABLISHMENT IN THE COUNTRY,
REGARDLESS OF SIZE OR LOCATION.  TO ACCEPT IT WOULD CUT LOGAN VALLEY
ENTIRELY AWAY FROM ITS ROOTS IN MARSH.  IT WOULD ALSO CONSTITUTE AN
UNWARRANTED INFRINGEMENT OF LONG-SETTLED RIGHTS OF PRIVATE PROPERTY
PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS.  WE HOLD THAT THE
BOARD AND THE COURT OF APPEALS ERRED IN APPLYING LOGAN VALLEY TO THIS
CASE.     THE TRIAL EXAMINER CONCLUDED THAT NO REASONABLE MEANS OF
COMMUNICATION WITH EMPLOYEES WERE AVAILABLE TO THE NONEMPLOYEE UNION
ORGANIZERS OTHER THAN SOLICITATION IN CENTRAL'S PARKING LOTS.  THE
BOARD ADOPTED THIS CONCLUSION.  CENTRAL VIGOROUSLY CONTENDS THAT THIS
CONCLUSION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD AS A
WHOLE.  THE COURT OF APPEALS DID NOT CONSIDER THIS CONTENTION, BECAUSE
IT VIEWED LOGAN VALLEY AS CONTROLLING RATHER THAN BABCOCK.  THE
DETERMINATION WHETHER ON THE RECORD AS A WHOLE THERE IS SUBSTANTIAL
EVIDENCE TO SUPPORT AGENCY FINDINGS IS A MATTER ENTRUSTED PRIMARILY TO
THE COURTS OF APPEALS.  UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474
(1951).  SINCE THE COURT OF APPEALS HAS NOT YET CONSIDERED THIS
QUESTION IN LIGHT OF THE PRINCIPLES OF NLRB V. BABCOCK & WILCOX CO.,
SUPRA, THE JUDGMENT IS VACATED, AND THE CASE WILL BE REMANDED TO THAT
COURT FOR SUCH CONSIDERATION. 

              IT IS SO ORDERED. 

/1/  SEE THOMAS V. COLLINS, 323 U.S. 516, 533-534 (1945). 

/2/  BABCOCK & WILCOX CO., 109 N.L.R.B. 485, 486 (1954). 

/3/  NLRB V. BABCOCK & WILCOX CO., 222 F.2D 316 (CA5 1955). 

/4/  BRIEF FOR THE NLRB 20. 

/5/  439 F.2D,AT 1326-1328. 

/6/  FOR A FULL DISCUSSION OF LOGAN VALLEY AND THE CIRCUMSTANCES IN
WHICH IT IS APPLICABLE, SEE THE DECISION OF THE COURT TODAY IN LLOYD
CORP. V. TANNER, POST, P. 551. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

I AGREE WITH THE COURT THAT THIS CASE SHOULD HAVE BEEN CONSIDERED
UNDER NLRB V. BABCOCK & WILCOX CO., 351 U.S. 105 (1956).  THAT CASE IS,
AS THE OPINION OF THE COURT SUGGESTS, NARROWER THAN AMALGAMATED FOOD
EMPLOYEES UNION V. LOGAN VALLEY PLAZA, 391 U.S. 308 (1968).  IT DOES
NOT PURPORT TO INTERPRET THE NATIONAL LABOR RELATIONS ACT (NLRA) SO AS
TO GIVE UNION MEMBERS THE SAME COMPREHENSIVE RIGHTS TO FREE EXPRESSION
ON THE PRIVATE PROPERTY OF AN EMPLOYER THAT THE FIRST AMENDMENT GIVES
TO ALL CITIZENS ON PRIVATE PROPERTY THAT IS THE FUNCTIONAL EQUIVALENT
OF A PUBLIC BUSINESS DISTRICT.  BUT BABCOCK IS, IN ANOTHER SENSE, EVEN
BROADER THAN LOGAN VALLEY.  IT HOLDS THAT WHERE A UNION HAS NO OTHER
MEANS AT ITS DISPOSAL TO COMMUNICATE WITH EMPLOYEES OTHER THAN TO USE
THE EMPLOYER'S PROPERTY, OR WHERE THE UNION IS DENIED THE ACCESS TO
EMPLOYEES THAT THE EMPLOYER GIVES ANTIUNION FORCES, THE UNION MAY
COMMUNICATE WITH EMPLOYEES ON THE PROPERTY OF THE EMPLOYER.  CONGRESS
GAVE UNIONS THIS RIGHT IN SECTION 7 OF THE NLRA, 61 STAT. 140, 29
U.S.C. 157.  THE FIRST AMENDMENT GIVES NO SUCH BROAD RIGHT TO USE
PRIVATE PROPERTY TO ORDINARY CITIZENS. 

THE NATIONAL LABOR RELATIONS BOARD FOUND THAT PETITIONER PERMITTED
ANTIUNION SOLICITATION ON ITS PREMISES AT THE SAME TIME THAT IT BARRED
UNION SOLICITATION.  181 N.L.R.B. 491 (1970).  IT MADE NO EXPLICIT
FINDING AS TO WHETHER ACCESS TO THE EMPLOYEES WAS REASONABLY AVAILABLE
TO THE UNION OUTSIDE OF THE PETITIONER'S PROPERTY, BUT SUGGESTED THAT
IT WAS NOT.  RATHER THAN DECIDING THE CASE UNDER BABCOCK, SUPRA, WHICH
WOULD APPEAR TO CONTROL AND TO PROVIDE THAT THE UNION ACTIVITY IN THE
CASE IS PROTECTED BY THE NLRA, THE BOARD APPEARS TO HAVE DECIDED THE
CASE UNDER LOGAN VALLEY, SUPRA.  THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT AFFIRMED ON THE BASIS OF LOGAN VALLEY AND FOUND IT
UNNECESSARY TO REVIEW THE BOARD'S FINDING OF DISCRIMINATION BY THE
EMPLOYER AGAINST THE UNION IN THE USE OF ITS PROPERTY OR TO REMAND THE
CASE FOR A DETERMINATION OF WHETHER IT WAS NECESSARY FOR THE UNION TO
USE PETITIONER'S PROPERTY TO COMMUNICATE WITH THE EMPLOYEES.  439 F.2D
1321 (1971). 

IT IS OBVIOUS, THEN, THAT NEITHER THE BOARD NOR THE COURT OF APPEALS
HAS FULLY CONSIDERED WHETHER THE EMPLOYER'S CONDUCT WAS PROSCRIBED BY
BABCOCK EVEN THOUGH THE INDICATIONS IN THE BOARD'S OPINION ARE THAT IT
WAS.  IN REACHING OUT TO DECIDE THIS CASE UNDER LOGAN VALLEY, THE
AGENCY AND THE LOWER COURT DECIDED A DIFFICULT CONSTITUTIONAL ISSUE
THAT MIGHT WELL HAVE BEEN AVOIDED BY DECIDING THE CASE UNDER THE NLRA. 
THIS WAS ERROR.  THE PRINCIPLE IS WELL ESTABLISHED THAT DECISIONS ON
CONSTITUTIONAL QUESTIONS SHOULD NOT BE REACHED UNNECESSARILY.  SEE,
E.G., DANDRIDGE V. WILLIAMS, 397 U.S. 471, 476 (1970); ROSENBERG V.
FLEUTI, 374 U.S. 449 (1963). 

SINCE BOTH THE AGENCY AND THE COURT OF APPEALS SHOULD HAVE FIRST
DECIDED WHETHER OR NOT BABCOCK CONTROLLED THE INSTANT CASE BEFORE
PROCEEDING TO DECIDE IT UNDER LOGAN VALLEY, BEFORE THIS COURT DECIDES
WHETHER OR NOT THE DECISION BELOW WAS CORRECT UNDER THE CONSTITUTION,
WE SHOULD REMAND THE CASE TO THE BOARD, RATHER THAN TO THE COURT OF
APPEALS, FOR A SQUARE HOLDING AS TO THE APPLICABILITY OF BABCOCK TO THE
FACTS OF THIS CASE.  MR. JUSTICE WHITE HAS RECENTLY RE-EMPHASIZED THE
POINT THAT WHEN AN AGENCY DECIDES A CASE UNDER AN INCORRECT LEGAL
APPROACH, COURTS SHOULD NOT SEEK TO PREDICT WHETHER THE AGENCY WOULD
HAVE DECIDED THE CASE THE SAME WAY UNDER THE CORRECT APPROACH, BUT
SHOULD INSTEAD REMAND THE CASE TO THE AGENCY FOR FURTHER PROCEEDINGS. 
FTC V. SPERRY & HUTCHISON CO., 405 U.S. 233, R249 (1972).  SEE ALSO
BURLINGTON TRUCK LINES V. UNITED STATES, 371 U.S. 156, 168 (1962). 

ACCORDINGLY, I WOULD REMAND THIS CASE TO THE BOARD FOR FURTHER
PROCEEDINGS WITHOUT DECIDING THE CONSTITUTIONAL QUESTION. 

RONALD L. AYLWARD ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS KEITH E. MATTERN. 

NORTON J. COME ARGUED THE CAUSE FOR RESPONDENT NATIONAL LABOR
RELATIONS BOARD.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD
AND PETER G. NASH.  BERNARD DUNAU ARGUED THE CAUSE FOR RESPONDENT
RETAIL CLERKS UNION LOCAL 725.  WITH HIM ON THE BRIEF WAS CARL L.
TAYLOR. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY LAWRENCE M.
COHEN, JERRY KRONENBERG, GERARD C. SMETANA, AND ALAN RAYWID FOR THE
AMERICAN RETAIL FEDERATION, AND BY PHIL B. HAMMOND FOR LEVITZ FURNITURE
CORP. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :























LLOYD CORP. V. TANNER, 407 U.S. 551 


       LLOYD CORP., LTD. V. TANNER ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

    NINTH CIRCUIT

        NO. 71-492.  ARGUED APRIL 18, 1972-- DECIDED JUNE 22, 1972 


RESPONDENTS SOUGHT TO DISTRIBUTE HANDBILLS IN THE INTERIOR MALL AREA
OF PETITIONER'S LARGE PRIVATELY OWNED SHOPPING CENTER.  PETITIONER HAD
A STRICT NO-HANDBILLING RULE.  PETITIONER'S SECURITY GUARDS REQUESTED
RESPONDENTS UNDER THREAT OF ARREST TO STOP THE HANDBILLING, SUGGESTING
THAT THEY COULD RESUME THEIR ACTIVITIES ON THE PUBLIC STEEETS AND
SIDEWALKS ADJACENT TO BUT OUTSIDE THE CENTER, WHICH RESPONDENTS DID. 
RESPONDENTS, CLAIMING THAT PETITIONER'S ACTION VIOLATED THEIR FIRST
AMENDMENT RIGHTS, THEREAFTER BROUGHT THIS ACTION FOR INJUNCTIVE AND
DECLARATORY RELIEF.  THE DISTRICT COURT, STRESSING THAT THE CENTER IS
"OPEN TO THE GENERAL PUBLIC" AND "THE FUNCTIONAL EQUIVALENT OF A PUBLIC
BUSINESS DISTRICT," AND RELYING ON MARSH V. ALABAMA, 326 U.S. 501, AND
AMALGAMATED FOOD EMPLOYEES UNION V. LOGAN VALLEY PLAZA, 391 U.S. 308,
HELD THAT PETITIONER'S POLICY OF PROHIBITING HANDBILLING WITHIN THE
MALL VIOLATED RESPONDENTS' FIRST AMENDMENT RIGHTS.  THE COURT OF
APPEALS AFFIRMED.  HELD:  THERE HAS BEEN NO DEDICATION OF PETITIONER'S
PRIVATELY OWNED AND OPERATED SHOPPING CENTER TO PUBLIC USE SO AS TO
ENTITLE RESPONDENTS TO EXERCISE FIRST AMENDMENT RIGHTS THEREIN THAT ARE
UNREALTED TO THE CENTER'S OPERATIONS; AND PETITIONER'S PROPERTY DID NOT
LOSE ITS PRIVATE CHARACTER AND ITS RIGHT TO PROTECTION UNDER THE
FOURTEENTH AMENDMENT MERELY BECAUSE THE PUBLIC IS GENERALLY INVITED TO
USE IT FOR THE PURPOSE OF DOING BUSINESS WITH PETITIONER'S TENANTS. 
THE FACTS IN THIS CASE ARE SIGNIFICANTLY DIFFERENT FROM THOSE IN MARSH,
SUPRA, WHICH INVOLVED A COMPANY TOWN WITH "ALL THE ATTRIBUTES" OF A
MUNICIPALITY, AND LOGAN VALLEY, SUPRA, WHICH INVOLVED LABOR PICKETING
DESIGNED TO CONVEY A MESSAGE TO PATRONS OF A PARTICULAR STORE, SO
LOCATED IN THE CENTER OF A LARGE PRIVATE ENCLAVE AS TO PRECLUDE OTHER
REASONABLE ACCESS TO STORE PATRONS.  UNDER THE CIRCUMSTANCES PRESENT IN
THIS CASE, WHERE THE HANDBILLING WAS UNRELATED TO ANY ACTIVITY WITHIN
THE CENTER AND WHERE RESPONDENTS HAD ADEQUATE ALTERNATIVE MEANS OF
COMMUNICATION, THE COURTS BELOW ERRED IN HOLDING THOSE DECISIONS
CONTROLLING.  PP. 556-570. 

446 F.2D 545, REVERSED AND REMANDED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, BLACKMUN, AND REHNQUIST, JJ., JOINED.  MARSHALL, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND STEWART,
JJ., JOINED, POST, P. 570. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION RESERVED BY THE COURT IN AMALGAMATED
FOOD EMPLOYEES UNION V. LOGAN VALLEY PLAZA, 391 U.S. 308 (1968), AS TO
THE RIGHT OF A PRIVATELY OWNED SHOPPING CENTER TO PROHIBIT THE
DISTRIBUTION OF HANDBILLS ON ITS PROPERTY WHEN THE HANDBILLING IS
UNRELATED TO THE SHOPPING CENTER'S OPERATIONS.  RELYING PRIMARILY ON
MARSH V. ALABAM, 326 U.S. 501 (1946), AND LOGAN VALLEY, THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF OREGON SUSTAINED AN ASSERTED
FIRST AMENDMENT RIGHT TO DISTRIBUTE HANDBILLS IN PETITIONER'S SHOPPING
CENTER, AND ISSUED A PERMANENT INJUNCTION RESTRAINING PETITIONER FROM
INTERFERING WITH SUCH RIGHT.  308 F.SUPP.  128 (1970).  THE COURT OF
APPEALS FOR THE NINTH CIRCUIT AFFIRMED, 446 F.2D 545 (1971).  WE
GRANTED CERTIORARI TO CONSIDER PETITIONER'S CONTENTION THAT THE
DECISION BELOW VIOLATES RIGHTS OF PRIVATE PROPERTY PROTECTED BY THE
FIFTH AND FOURTEENTH AMENDMENTS.  404 U.S. 1037 (1972). 

LLOYD CORP., LTD. (LLOYD), OWNS A LARGE, MODERN RETAIL SHOPPING
CENTER IN PORTLAND, OREGON.  LLOYD CENTER EMBRACES ALTOGETHER ABOUT 50
ACRES, INCLUDING SOME 20 ACRES OF OPEN AND COVERED PARKING FACILITIES
WHICH ACCOMMODATE MORE THAN 1,000 AUTOMOBILES.  IT HAS A PERIMETER OF
ALMOST ONE AND ONE-HALF MILES, BOUNDED BY FOUR PUBLIC STREETS.  IT IS
CROSSED IN VARYING DEGREES BY SEVERAL OTHER PUBLIC STREETS, ALL OF
WHICH HAVE ADJACENT PUBLIC SIDEWALKS.  LLOYD OWNS ALL LAND AND
BUILDINGS WITHIN THE CENTER, EXCEPT THESE PUBLIC STREETS AND
SIDEWALKS.  THERE ARE SOME 60 COMMERCIAL TENANTS, INCLUDING SMALL SHOPS
AND SEVERAL MAJOR DEPARTMENT STORES. 

THE CENTER EMBODIES A RELATIVELY NEW CONCEPT IN SHOPPING CENTER
DESIGN.  THE STORES ARE ALL LOCATED WITHIN A SINGLE LARGE, MULTI-LEVEL
BUILDING COMPLEX SOMETIMES REFERRED TO AS THE "MALL."  WITHIN THIS
COMPELX, IN ADDITION TO THE STORES, THERE ARE PARKING FACILITIES,
MALLS, PRIVATE SIDEWALKS, STAIRWAYS, EXCALATORS, GARDENS, AN
AUDITORIUM, AND A SKATING RINK.  SOME OF THE STORES OPEN DIRECTLY ON
THE OUTSIDE PUBLIC SIDEWALKS, BUT MOST OPEN ON THE INTERIOR PRIVATELY
OWNED MALLS.  SOME STORES OPEN ON BOTH.  THERE ARE NO PUBLIC STREETS OR
PUBLIC SIDEWALKS WITHIN THE BUILDING COMPLEX, WHICH IS ENCLOSED AND
ENTIRELY COVERED EXCEPT FOR THE LANDSCAPED PORTIONS OF SOME OF THE
INTERIOR MALLS. 

THE DISTRIBUTION OF THE HANDBILLS OCCURRED IN THE MALLS.  THEY ARE A
DISTINCTIVE FEATURE OF THE CENTER, SERVING BOTH UTILITARIAN AND
ESTHETIC FUNCTIONS.  ESSENTIALLY, THEY ARE PRIVATE, INTERIOR PROMENADES
WITH 10-FOOT SIDEWALKS SERVING THE STORES, AND WITH A CENTER STRIP 30
FEET WIDE IN WHICH FLOWERS AND SHRUBS ARE PLANTED, AND STATUARY,
FOUNTAINS, BENCHES, AND OTHER AMENITIES ARE LOCATED.  THERE IS NO
VEHICULAR TRAFFIC ON THE MALLS.  AN ARCHITECTURAL EXPERT DESCRIBED THE
PURPOSE OF THE MALLS AS FOLLOWS: 

"IN ORDER TO MAKE SHOPPING EASY AND PLEASANT, AND TO HELP REALIZE
THE GOAL OF MAXIMUM SALES (FOR THE CENTER), THE SHOPS ARE GROUPED ABOUT
SPECIAL PEDESTRIAN WAYS OR MALLS.  HERE THE SHOPPER IS ISOLATED FROM
THE NOISE, FUMES, CONFUSION AND DISTRACTION WHICH HE NORMALLY FINDS
ALONG CITY STREETS, AND A CONTROLLED, CAREFREE ENVIRONMENT IS
PROVIDED.  . . . "  /1/ 

ALTHOUGH THE STORES CLOSE AT CUSTOMARY HOURS, THE MALLS ARE NOT
PHYSICALLY CLOSED, AS PEDESTRIAN WINDOW SHOPPING IS ENCOURAGED WITHIN
REASONABLE HOURS.  /2/  LLOYD EMPLOYS 12 SECURITY GUARDS, WHO ARE
COMMISSIONED AS SUCH BY THE CITY OF PORTLAND.  THE GUARDS HAVE POLICE
AUTHORITY WITHIN THE CENTER, WEAR UNIFORMS SIMILAR TO THOSE WORN BY
CITY POLICE, AND ARE LICENSED TO CARRY HANDGUNS.  THEY ARE EMPLOYED BY
AND SUBJECT TO THE CONTROL OF LLOYD.  THEIR DUTIES ARE THE CUSTOMARY
ONES, INCLUDING SHOPLIFTING SURVEILLANCE AND GENERAL SECURITY. 

AT A FEW PLACES WITHIN THE CENTER, SMALL SIGNS ARE EMBEDDED IN THE
SIDEWALK WHICH STATE: 

     "NOTICE-- AREAS IN LLOYD CENTER USED BY THE PUBLIC ARE NOT

  PUBLIC WAYS BUT ARE FOR THE USE OF LLOYD CENTER TENANTS AND THE

  PUBLIC TRANSACTING BUSINESS WITH THEM.  PERMISSION TO USE SAID

  AREAS MAY BE REVOKED AT ANY TIME.  LLOYD CORPORATION, LTD." 

THE CENTER IS OPEN GENERALLY TO THE PUBLIC, WITH A CONSIDERABLE
EFFORT BEING MADE TO ATTRACT SHOPPERS AND PROSEPECTIVE SHOPPERS, AND TO
CREATE "CUSTOMER MOTIVATION" AS WELL AS CUSTOMER GOODWILL IN THE
COMMUNITY.  IN THIS RESPECT THE CENTER PURSUES POLICIES COMPARABLE TO
THOSE OF MAJOR STORES AND SHOPPING CENTERS ACROSS THE COUNTRY, ALTHOUGH
THE CENTER AFFORDS SUPERIOR FACILITIES FOR THESE PURPOSES.  GROUPS AND
ORGANIZATIONS ARE PERMITTED, BY INVITATION AND ADVANCE ARRANGEMENT, TO
USE THE AUDITORIUM AND OTHER FACILITIES.  RENT IS CHARGED FOR USE OF
THE AUDITORIUM EXCEPT WITH RESPECT TO CERTAIN CIVIC AND CHARITABLE
ORGANIZATIONS, SUCH AS THE CANCER SOCIETY AND BOY AND GIRL SCOUTS.  THE
CENTER ALSO ALLOWS LIMITED USE OF THE MALLS BY THE AMERICAN LEGION TO
SELL POPPIES FOR DISABLED VETERANS, AND BY THE SALVATION ARMY AND
VOLUNTEERS OF AMERICA TO SOLICIT CHRISTMAS CONTRIBUTIONS.  IT HAS
DENIED SIMILAR USE TO OTHER CIVIC AND CHARITABLE ORGANIZATIONS. 
POLITICAL USE IS ALSO FORBIDDEN, EXCEPT THAT PRESIDENTIAL CANDIDATES OF
BOTH PARTIES HAVE BEEN ALLOWED TO SPEAK IN THE AUDITORIUM.  /3/ 

THE CENTER HAD BEEN IN OPERATION FOR SOME EIGHT YEARS WHEN THIS
LITIGATION COMMENCED.  THROUGHOUT THIS PERIOD IT HAD A POLICY, STRICTLY
ENFORCED, AGAINST THE DISTRIBUTION OF HANDBILLS WITHIN THE BUILDING
COMPLEX AND ITS MALLS.  NO EXCEPTIONS WERE MADE WITH RESPECT TO
HANDBILLING, WHICH WAS CONSIDERED LIKELY TO ANNOY CUSTOMERS, TO CREATE
LITTER, POTENTIALLY TO CREATE DISORDERS, AND GENERALLY TO BE
INCOMPATIBLE WITH THE PURPOSE OF THE CENTER AND THE ATMOSPHERE SOUGHT
TO BE PRESERVED. 

ON NOVEMBER 14, 1968, THE RESPONDENTS IN THIS CASE DISTRIBUTED
WITHIN THE CENTER HANDBILL INVITATIONS TO A MEETING OF THE "RESISTANCE
COMMUNITY" TO PROTEST THE DRAFT AND THE VIETNAM WAR.  THE DISTRIBUTION,
MADE IN SEVERAL DIFFERENT PLACES ON THE MALL WALKWAYS BY FIVE YOUNG
PEOPLE, WAS QUIET AND ORDERLY, AND THERE WAS NO LITTERING.  THERE WAS A
COMPLAINT FROM ONE CUSTOMER.  SECURITY GUARDS INFORMED THE RESPONDENTS
THAT THEY WERE TRESPASSING AND WOULD BE ARRESTED UNLESS THEY STOPPED
DISTRIBUTING THE HANDBILLS WITHIN THE CENTER.  /4/  THE GUARDS
SUGGESTED THAT RESPONDENTS DISTRIBUTE THEIR LITERATURE ON THE PUBLIC
STREETS AND SIDEWALKS ADJACENT TO BUT OUTSIDE OF THE CENTER COMPLEX. 
RESPONDENTS LEFT THE PREMISES AS REQUESTED "TO AVOID ARREST" AND
CONTINUED THE HANDBILLING OUTSIDE.  SUBSEQUENTLY THIS SUIT WAS
INSTITUTED IN THE DISTRICT COURT, SEEKING DECLARATORY AND INJUNCTIVE
RELIEF. 

        I 

THE DISTRICT COURT, EMPHASIZING THAT THE CENTER "IS OPEN TO THE
GENERAL PUBLIC," FOUND THAT IT IS "THE FUNCTIONAL EQUIVALENT OF A
PUBLIC BUSINESS DISTRICT."  308 F.SUPP.,AT 130.  THAT COURT THEN HELD
THAT LLOYD'S "RULE PROHIBITING THE DISTRIBUTION OF HANDBILLS WITHIN THE
MALL VIOLATES . . . FIRST AMENDMENT RIGHTS."  308 F.SUPP.,AT 131.  IN A
PER CURIAM OPINION, THE COURT OF APPEALS HELD THAT IT WAS BOUND BY THE
"FACTUAL DETERMINATION" AS TO THE CHARACTER OF THE CENTER, AND
CONCLUDED THAT THE DECISIONS OF THIS COURT IN MARSH V. ALABAMA, 326
U.S. 501 (1946), AND AMALGAMATED FOOD EMPLOYEES UNION V. LOGAN VALLEY
PLAZA, 391 U.S. 308 (1968), COMPELLED AFFIRMANCE.  /5/ 

MARSH INVOLVED CHICKASAW, ALABAMA, A COMPANY TOWN WHOLLY OWNED BY
THE GULF SHIPBUILDING CORP.  THE OPINION OF THE COURT, BY MR. JUSTICE
BLACK, DESCRIBED CHICKASAW AS FOLLOWS: 

"EXCEPT FOR (OWNERSHIP BY A PRIVATE CORPORATION) IT HAS ALL THE
CHARACTERISTICS OF ANY OTHER AMERICAN TOWN.  THE PROPERTY CONSISTS OF
RESIDENTIAL BUILDINGS, STREETS, A SYSTEM OF SEWERS, A SEWAGE DISPOSAL
PLANT AND A 'BUSINESS BLOCK' ON WHICH BUSINESS PLACES ARE SITUATED.  A
DEPUTY OF THE MOBILE COUNTY SHERIFF, PAID BY THE COMPANY, SERVES AS THE
TOWN'S POLICEMAN.  MERCHANTS AND SERVICE ESTABLISHMENTS HAVE RENTED THE
STORES AND BUSINESS PLACES ON THE BUSINESS BLOCK AND THE UNITED STATES
USES ONE OF THE PLACES AS A POST OFFICE FROM WHICH SIX CARRIERS DELIVER
MAIL TO THE PEOPLE OF CHICKASAW AND THE ADJACENT AREA.  THE TOWN AND
THE SURROUNDING NEIGHBORHOOD, WHICH CAN NOT BE DISTINGUISHED FROM THE
GULF PROPERTY BY ANYONE NOT FAMILIAR WITH THE PROPERTY LINES, ARE
THICKLY SETTLED, AND ACCORDING TO ALL INDICATIONS THE RESIDENTS USE THE
BUSINESS BLOCK AS THEIR REGULAR SHOPPING CENTER.  TO DO SO, THEY NOW,
AS THEY HAVE FOR MANY YEARS, MAKE USE OF A COMPANY-OWNED PAVED STREET
AND SIDEWALK LOCATED ALONGSIDE THE STORE FRONTS IN ORDER TO ENTER AND
LEAVE THE STORES AND THE POST OFFICE.  INTERSECTING COMPANY-OWNED ROADS
AT EACH END OF THE BUSINESS BLOCK LEAD INTO A FOUR-LANE PUBLIC HIGHWAY
WHICH RUNS PARALLEL TO THE BUSINESS BLOCK AT A DISTANCE OF THIRTY
FEET.  THERE IS NOTHING TO STOP HIGHWAY TRAFFIC FROM COMING INTO THE
BUSINESS BLOCK AND UPON ARRIVAL A TRAVELER MAY MAKE FREE USE OF THE
FACILITIES AVAILABLE THERE.  IN SHORT THE TOWN AND ITS SHOPPING
DISTRICT ARE ACCESSIBLE TO AND FREELY USED BY THE PUBLIC IN GENERAL AND
THERE IS NOTHING TO DISTINGUISH THEM FROM ANY OTHER TOWN AND SHOPPING
CENTER EXCEPT THE FACT THAT THE TITLE TO THE PROPERTY BELONGS TO A
PRIVATE CORPORATION."  326 U.S.,AT 502-503.  A JEHOVAH'S WITNESS
UNDERTOOK TO DISTRIBUTE RELIGIOUS LITERATURE ON A SIDEWALK NEAR THE
POST OFFICE AND WAS ARRESTED ON A TRESPASSING CHARGE.  IN HOLDING THAT
FIRST AND FOURTEENTH AMENDMENT RIGHTS WERE INFRINGED, THE COURT
EMPHASIZED THAT THE BUSINESS DISTRICT WAS WITHIN A COMPANY-OWNED TOWN,
AN ANACHRONISM LONG PREVALENT IN SOME SOUTHERN STATES AND NOW RARELY
FOUND.  /6/ 

IN LOGAN VALLEY THE COURT EXTENDED THE RATIONALE OF MARSH TO
PEACEFUL PICKETING OF A STORE LOCATED IN A LARGE SHOPPING CENTER, KNOWN
AS LOGAN VALLEY MALL, NEAR ALTOONA, PENNSYLVANIA.  WEIS MARKETS, INC.
(WEIS), AN ORIGINAL TENANT, HAD OPENED A SUPERMARKET IN ONE OF THE
LARGER STORES AND WAS EMPLOYING A WHOLLY NONUNION STAFF.  WITHIN 10
DAYS AFTER WEIS OPENED, MEMBERS OF AMALGAMATED FOOD EMPLOYEES UNION
LOCAL 590 (UNION) BEGAN PICKETING WEIS, CARRYING SIGNS STATING THAT IT
WAS A NONUNION MARKET AND THAT ITS EMPLOYEES WERE NOT RECEIVING UNION
WAGES OR OTHER UNION BENEFITS.  THE PICKETING, CONDUCTED BY
NONEMPLOYEES, WAS CARRIED OUT ALMOST ENTIRELY IN THE PARCEL PICKUP AREA
IMMEDIATELY ADJACENT TO THE STORE AND ON PORTIONS OF THE ADJOINING
PARKING LOT.  THE PICKETING WAS PEACEFUL, WITH THE NUMBER OF PICKETS
VARYING FROM FOUR TO 13. 

WEIS AND LOGAN VALLEY PLAZA, INC., SOUGHT AND OBTAINED AN INJUNCTION
AGAINST THIS PICKETING.  THE INJUNCTION REQUIRED THAT ALL PICKETING BE
CONFINED TO PUBLIC AREAS OUTSIDE THE SHOPPING CENTER.  ON APPEAL THE
PENNSYLVANIA SUPREME COURT AFFIRMED THE ISSUANCE OF THE INJUNCTION, AND
THIS COURT GRANTED CERTIORARI.  IN FRAMING THE QUESTION, THIS COURT
STATED: 

     "THE CASE SQUARELY PRESENTS . . . THE QUESTION WHETHER

  PENNSYLVANIA'S GENERALLY VALID RULES AGAINST TRESPASS TO PRIVATE

  PROPERTY CAN BE APPLIED IN THESE CIRCUMSTANCES TO BAR PETITIONERS

FROM THE WEIS AND LOGAN PREMISES."  391 U.S.,AT 315. 

THE COURT NOTED THAT THE ANSWER WOULD BE CLEAR "IF THE SHOPPING CENTER
PREMISES WERE NOT PRIVATELY OWNED BUT INSTEAD CONSTITUTED THE BUSINESS
AREA OF A MUNICIPALITY."  IBID.  IN THE LATTER SITUATION, IT HAS OFTEN
BEEN HELD THAT PUBLICLY OWNED STREETS, SIDEWALKS, AND PARKS ARE SO
HISTORICALLY ASSOCIATED WITH THE EXERCISE OF FIRST AMENDMENT RIGHTS
THAT ACCESS TO THEM FOR PURPOSES OF EXERCISING SUCH RIGHTS CANNOT BE
DENIED ABSOLUTELY.  LOVELL V. GRIFFIN, 303 U.S. 444 (1938); HAGUE V.
CIO, 307 U.S. 496 (1939); SCHNEIDER V. STATE, 308 U.S. 147 (1939);
JAMISON V. TEXAS, 318 U.S. 413 (1943). 

THE COURT THEN CONSIDERED MARSH V. ALABAMA, SUPRA, AND CONCLUDED
THAT: 

"THE SHOPPING CENTER HERE IS CLEARLY THE FUNCTIONAL EQUIVALENT OF
THE BUSINESS DISTRICT OF CHICKASAW INVOLVED IN MARSH."  391 U.S.,AT
318.  BUT THE COURT WAS CAREFUL NOT TO GO FURTHER AND SAY THAT FOR ALL
PURPOSES AND USES THE PRIVATELY OWNED STREETS, SIDEWALKS, AND OTHER
AREAS OF A SHOPPING CENTER ARE ANALOGOUS TO PUBLICLY OWNED FACILITIES: 

"ALL WE DECIDE HERE IS THAT BECAUSE THE SHOPPING CENTER SERVES AS
THE COMMUNITY BUSINESS BLOCK 'AND IS FREELY ACCESSIBLE AND OPEN TO THE
PEOPLE IN THE AREA AND THOSE PASSING THROUGH,' MARSH V. ALABAMA, 326
U.S.,AT 508, THE STATE MAY NOT DELEGATE THE POWER, THROUGH THE USE OF
ITS TRESPASS LAWS, WHOLLY TO EXCLUDE THOSE MEMBERS OF THE PUBLIC
WISHING TO EXERCISE THEIR FIRST AMENDMENT RIGHTS ON THE PREMISES IN A
MANNER AND FOR A PURPOSE GENERALLY CONSONANT WITH THE USE TO WHICH THE
PROPERTY IS ACTUALLY PUT."  ID., AT 319-320.  THE COURT NOTED THAT THE
SCOPE OF ITS HOLDING WAS LIMITED, AND EXPRESSLY RESERVED JUDGMENT ON
THE TYPE OF ISSUE PRESENTED IN THIS CASE: 

     "THE PICKETING CARRIED ON BY PETITIONERS WAS DIRECTED

  SPECIFICALLY AT PATRONS OF THE WEIS MARKET LOCATED WITHIN THE

  SHOPPING CENTER AND THE MESSAGE SOUGHT TO BE CONVEYED TO THE

PUBLIC CONCERNED THE MANNER IN WHICH THAT PARTICULAR MARKET WAS

  BEING OPERATED.  WE ARE, THEREFORE, NOT CALLED UPON TO CONSIDER

  WHETHER RESPONDENTS' PROPERTY RIGHTS COULD, CONSISTENTLY WITH THE

  FIRST AMENDMENT, JUSTIFY A BAR ON PICKETING WHICH WAS NOT THUS

  DIRECTLY RELATED IN ITS PURPOSE TO THE USE TO WHICH THE SHOPPING

  CENTER PROPERTY WAS BEING PUT."  ID., AT 320 N. 9. 

THE COURT ALSO TOOK SPECIFIC NOTE OF THE FACTS THAT THE UNION'S
PICKETING WAS "DIRECTED SOLELY AT ONE ESTABLISHEMENT WITHIN THE
SHOPPING CENTER," ID., AT 321, AND THAT THE PUBLIC BERMS AND SIDEWALKS
WERE "FROM 350 TO 500 FEET AWAY FROM THE WEIS STORE."  ID., AT 322. 
THIS DISTANCE MADE IT DIFFICULT "TO COMMUNICATE (WITH) PATRONS OF WEIS"
AND "TO LIMIT (THE) EFFECT (OF THE PICKETING) TO WEIS ONLY."  ID., AT
322, 323.  /7/  LOGAN VALLEY WAS DECIDED ON THE BASIS OF THIS FACTUAL
SITUATION, AND THE FACTS IN THIS CASE ARE SIGNIFICANTLY DIFFERENT. 
   II 

THE COURTS BELOW CONSIDERED THE CRITICAL INQUIRY TO BE WHETHER LLOYD
CENTER WAS "THE FUNCTIONAL EQUIVALENT OF A PUBLIC BUSINESS DISTRICT." 
/8/  THIS PHRASE WAS FIRST USED IN LOGAN VALLEY, BUT ITS GENESIS WAS IN
MARSH.  IT IS WELL TO CONSIDER WHAT MARSH ACTUALLY DECIDED.  AS NOTED
ABOVE, IT INVOLVED AN ECONOMIC ANOMALY OF THE PAST, "THE COMPANY
TOWN."  ONE MUST HAVE SEEN SUCH TOWNS TO UNDERSTAND THAT "FUNCTIONALLY"
THEY WERE NO DIFFERENT FROM MUNICIPALITIES OF COMPARABLE SIZE.  THEY
DEVELOPED PRIMARILY IN THE DEEP SOUTH TO MEET ECONOMIC CONDITIONS,
ESPECIALLY THOSE WHICH EXISTED FOLLOWING THE CIVIL WAR.  IMPOVERISHED
STATES, AND ESPECIALLY BACKWARD AREAS THEREOF, NEEDED AN INFLUX OF
INDUSTRY AND CAPITAL.  CORPORATIONS ATTRACTED TO THE AREA BY NATURAL
RESOURCES AND ABUNDANT LABOR WERE WILLING TO ASSUME THE ROLE OF LOCAL
GOVERNMENT.  QUITE LITERALLY, TOWNS WERE BUILT AND OPERATED BY PRIVATE
CAPITAL WITH ALL OF THE CUSTOMARY SERVICES AND UTILITIES NORMALLY
AFFORDED BY A MUNICIPAL OR STATE GOVERNMENT:  THERE WERE STREETS,
SIDEWALKS, SEWERS, PUBLIC LIGHTING, POLICE AND FIRE PROTECTION,
BUSINESS AND RESIDENTIAL AREAS, CHURCHES, POSTAL FACILITIES, AND
SOMETIMES SCHOOLS.  IN SHORT, AS MR. JUSTICE BLACK SAID, CHICKASAW,
ALABAMA, HAD "ALL THE CHARACTERISTICS OF ANY OTHER AMERICAN TOWN."  326
U.S.,AT 502.  THE COURT SIMPLY HELD THAT WHERE PRIVATE INTERESTS WERE
SUBSTITUTING FOR AND PERFORMING THE CUSTOMARY FUNCTIONS OF GOVERNMENT,
FIRST AMENDMENT FREEDOMS COULD NOT BE DENIED WHERE EXERCISED IN THE
CUSTOMARY MANNER ON THE TOWN'S SIDEWALKS AND STREETS.  INDEED, AS TITLE
TO THE ENTIRE TOWN WAS HELD PRIVATELY, THERE WERE NO PUBLICLY OWNED
STREETS, SIDEWALKS, OR PARKS WHERE SUCH RIGHTS COULD BE EXERCISED. 

LOGAN VALLEY EXTENDED MARSH TO A SHOPPING CENTER SITUATION IN A
DIFFERENT CONTEXT FROM THE COMPANY TOWN SETTING, BUT IT DID SO ONLY IN
A CONTEXT WHERE THE FIRST AMENDMENT ACTIVITY WAS RELATED TO THE
SHOPPING CENTER'S OPERATIONS.  THERE IS SOME LANGUAGE IN LOGAN VALLEY,
UNNECESSARY TO THE DECISION SUGGESTING THAT THE KEY FOCUS OF MARSH WAS
UPON THE "BUSINESS DISTRICT," AND THAT WHENEVER A PRIVATELY OWNED
BUSINESS DISTRICT SERVES THE PUBLIC GENERALLY ITS SIDEWALKS AND STREETS
BECOME THE FUNCTIONAL EQUIVALENTS OF SIMILAR PUBLIC FACILITIES.  /9/
AS MR. JUSTICE BLACK'S DISSENT IN LOGAN VALLEY EMPHASIZED, THIS WOULD
BE AN INCORRECT INTERPRETATION OF THE COURT'S DECISION IN MARSH:  /10/

"MARSH WAS NEVER INTENDED TO APPLY TO THIS KIND OF SITUATION.  MARSH
DEALT WITH THE VERY SPECIAL SITUATION OF A COMPANY-OWNED TOWN, COMPLETE
WITH STREETS, ALLEYS, SEWERS, STORES, RESIDENCES, AND EVERYTHING ELSE
THAT GOES TO MAKE A TOWN.  THE PARTICULAR COMPANY TOWN INVOLVED WAS
CHICKASAW, ALABAMA, WHICH, AS WE STATED IN THE OPINION, EXCEPT FOR THE
FACT THAT IT 'IS OWNED BY THE GULF SHIPBUILDING CORPORATION . . . HAS
ALL THE CHARACTERISTICS OF ANY OTHER AMERICAN TOWN.  THE PROPERTY
CONSISTS OF RESIDENTIAL BUILDINGS, STREETS, A SYSTEM OF SEWERS, A
SEWAGE DISPOSAL PLANT AND A "BUSINESS BLOCK" ON WHICH BUSINESS PLACES
ARE SITUATED.'  326 U.S.,AT 502.  AGAIN TOWARD THE END OF THE OPINION
WE EMPHASIZED THAT 'THE TOWN OF CHICKASAW DOES NOT FUNCTION DIFFERENTLY
FROM ANY OTHER TOWN.'  326 U.S.,AT 508.  I THINK IT IS FAIR TO SAY THAT
THE BASIS ON WHICH THE MARSH DECISION RESTED WAS THAT THE PROPERTY
INVOLVED ENCOMPASSED AN AREA THAT FOR ALL PRACTICAL PURPOSES HAD BEEN
TURNED INTO A TOWN; THE AREA HAD ALL THE ATTRIBUTES OF A TOWN AND WAS
EXACTLY LIKE ANY OTHER TOWN IN ALABAMA."  391 U.S.,AT 330-331. 

THE HOLDING LOGAN VALLEY WAS NOT DEPENDENT UPON THE SUGGESTION THAT
THE PRIVATELY OWNED STREETS AND SIDEWALKS OF A BUSINESS IDSTRICT OR A
SHOPPING CENTER ARE THE EQUIVALENT, FOR FIRST AMENDMENT PURPOSES, OF
MUNICIPALLY OWNED STREETS AND SIDEWALKS.  NO SUCH EXPANSIVE READING OF
THE OPINION OF THE COURT IS NECESSARY OR APPROPRIATE.  THE OPINION WAS
CAREFULLY PHRASED TO LIMIT ITS HOLDING TO THE PICKETING INVOLVED, WHERE
THE PICKETING WAS "DIRECTLY RELATED IN ITS PURPOSE TO THE USE TO WHICH
THE SHOPPING CENTER PROPERTY WAS BEING PUT," 391 U.S.,AT 320 N. 9, AND
WHERE THE STORE WAS LOCATED IN THE CENTER OF A LARGE PRIVATE ENCLAVE
WITH THE CONSEQUENCE THAT NO OTHER REASONABLE OPPORTUNITIES FOR THE
PICKETS TO CONVEY THEIR MESSAGE TO THEIR INTENDED AUDIENCE WERE
AVAILABLE. 

NEITHER OF THESE ELEMENTS IS PRESENT IN THE CASE NOW BEFORE THE
COURT. 

 A 

THE HANDBILLING BY RESPONDENTS IN THE MALLS OF LLOYD CENTER HAD NO
RELATION TO ANY PURPOSE FOR WHICH THE CENTER WAS BUILT AND BEING
USED."  /11/  IT IS NEVERTHELESS ARGUED BY RESPONDENTS THAT, SINCE THE
CENTER IS OPEN TO THE PUBLIC, THE PRIVATE OWNER CANNOT ENFORCE A
RESTRICTION AGAINST HANDBILLING ON THE PREMISES.  THE THRUST OF THIS
ARGUMENT IS CONSIDERABLY BROADER THAN THE RATIONALE OF LOGAN VALLEY. 
IT REQUIRES NO RELATIONSHIP, DIRECT OR INDIRECT, BETWEEN THE PURPOSE OF
THE EXPRESSIVE ACTIVITY AND THE BUSINESS OF THE SHOPPING CENTER.  THE
MESSAGE SOUGHT TO BE CONVEYED BY RESPONDENTS WAS DIRECTED TO ALL
MEMBERS OF THE PUBLIC, NOT SOLELY TO PATRONS OF LLOYD CENTER OR OF ANY
OF ITS OPERATIONS.  RESPONDENTS COULD HAVE DISTRIBUTED THESE HANDBILLS
ON ANY PUBLIC STREET, ON ANY PUBLIC SIDEWALK, IN ANY PUBLIC PARK, OR IN
ANY PUBLIC BUILDING IN THE CITY OF PORTLAND. 

RESPONDENTS' ARGUMENT, EVEN IF OTHERWISE MERITORIOUS, MISAPPREHENDS
THE SCOPE OF THE INVITATION EXTENDED TO THE PUBLIC.  THE INVITATION IS
TO COME TO THE CENTER TO DO BUSINESS WITH THE TENANTS.  IT IS TRUE THAT
FACILITIES AT THE CENTER ARE USED FOR CERTAIN MEETINGS AND FOR VARIOUS
PROMOTIONAL ACTIVITES.  THE OBVIOUS PURPOSE, RECOGNIZED WIDELY AS
LEGITIMATE AND RESPONSIBLE BUSINESS ACTIVITY, IS TO BRING POTENTIAL
SHOPPERS TO THE CENTER, TO CREATE A FAVORABLE IMPRESSION, AND TO
GENERATE GOODWILL.  THERE IS NO OPEN-ENDED INVITATION TO THE PUBLIC TO
USE THE CENTER FOR ANY AND ALL PURPOSES, HOWEVER INCOMPATIBLE WITH THE
INTERESTS OF BOTH THE STORES AND THE SHOPPERS WHOM THEY SERVE. 

MR. JUSTICE WHITE, DISSENTING IN LOGAN VALLEY, NOTED THE LIMITED
SCOPE OF A SHOPPING CENTER'S INVITATION TO THE PUBLIC: 

"IN NO SENSE ARE ANY PARTS OF THE SHOPPING CENTER DEDICATED TO THE
PUBLIC FOR GENERAL PURPOSES.  . . . THE PUBLIC IS INVITED TO THE
PREMISES BUT ONLY IN ORDER TO DO BUSINESS WITH THOSE WHO MAINTAIN
ESTABLISHMENTS THERE.  THE INVITATION IS TO SHOP FOR THE PRODUCTS WHICH
ARE SOLD.  THERE IS NO GENERAL INVITATION TO USE THE PARKING LOT, THE
PICKUP ZONE, OR THE SIDEWALK EXCEPT AS AN ADJUNCT TO SHOPPING.  NO ONE
IS INVITED TO USE THE PARKING LOT AS A PLACE TO PARK HIS CARE WHILE HE
GOES ELSEWHERE TO WORK.  THE DRIVEWAYS AND LANES FOR AUTO TRAFFIC ARE
NOT OFFERED FOR USE AS GENERAL THOROUGHFARES LEADING FROM ONE PUBLIC
STREET TO ANOTHER.  THOSE DRIVEWAYS AND PARKING SPACES ARE NOT PUBLIC
STREETS AND THUS AVAILABLE FOR PARADES, PUBLIC MEETINGS, OR OTHER
ACTIVITIES FOR WHICH PUBLIC STREETS ARE USED."  391 U.S.,AT 338. 

IT IS NOTEWORTHY THAT RESPONDENTS' ARGUMENT BASED ON THE CENTER'S
BEING "OPEN TO THE PUBLIC" WOULD APPLY IN VARYING DEGREES TO MOST
RETAIL STORES AND SERVICE ESTABLISHMENTS ACROSS THE COUNTRY.  THEY ARE
ALL OPEN TO THE PUBLIC IN THE SENSE THAT CUSTOMERS AND POTENTIAL
CUSTOMERS ARE INVITED AND ENCOURAGED TO ENTER.  IN TERMS OF BEING OPEN
TO THE PUBLIC, THERE ARE DIFFERENCES ONLY OF DEGREE-- NOT OF PRINCIPLE-
BETWEEN A FREE-STANDING STORE AND ONE LOCATED IN A SHOPPING CENTER,
BETWEEN A SMALL STORE AND A LARGE ONE, BETWEEN A SINGLE STORE WITH SOME
MALLS AND OPEN AREAS DESIGNED TO ATTRACT CUSTOMERS AND LLOYD CENTER
WITH ITS ELABORATE MALLS AND INTERIOR LANDSCAPING. 

 B 

A FURTHER FACT, DISTINGUISHING THE PRESENT CASE FROM LOGAN VALLEY,
IS THAT THE UNION PICKETS IN THAT CASE WOULD HAVE BEEN DEPRIVED OF ALL
REASONABLE OPPORTUNITY TO CONVEY THEIR MESSAGE TO PATRONS OF THE WEIS
STORE HAD THEY BEEN DENIED ACCESS TO THE SHOPPING CENTER.  /12/  THE
SITUATION AT LLOYD CENTER WAS NOTABLY DIFFERENT.  THE CENTRAL BUILDING
COMPLEX WAS SURROUNDED BY PUBLIC SIDEWALKS, TOTALING 66 LINEAR BLOCKS. 
ALL PERSONS WHO ENTER OR LEAVE THE PRIVATE AREAS WITHIN THE COMPLEX
MUST CROSS PUBLIC STREETS AND SIDEWALKS, EITHER ON FOOT OR IN
AUTOMOBILES.  WHEN MOVING TO AND FROM THE PRIVATELY OWNED PARKING LOTS,
AUTOMOBILES ARE REQUIRED BY LAW TO COME TO A COMPLETE STOP.  HANDBILLS
MAY BE DISTRIBUTED CONVENIENTLY TO PEDESTRIANS, AND ALSO TO OCCUPANTS
OF AUTOMOBILES, FROM THESE PUBLIC SIDEWALKS AND STREETS.  INDEED,
RESPONDENTS MOVED TO THESE PUBLIC AREAS AND CONTINUED DISTRIBUTION OF
THEIR HANDBILLS AFTER BEING REQUESTED TO LEAVE THE INTERIOR MALLS.  IT
WOULD BE AN UNWARRANTED INFRINGEMENT OF PROPERTY RIGHTS TO REQUIRE THEM
TO YIELD TO THE EXERCISE OF FIRST AMENDMENT RIGHTS UNDER CIRCUMSTANCES
WHERE ADEQUATE ALTERNATIVE AVENUES OF COMMUNICATION EXIST.  SUCH AN
ACCOMMODATION WOULD DIMINISH PROPERTY RIGHTS WITHOUT SIGNIFICANTLY
ENHANCING THE ASSERTED RIGHT OF FREE SPEECH.  IN ORDERING THIS
ACCOMMODATION THE COURTS BELOW ERRED IN THEIR INTERPRETATION OF THIS
COURT'S DECISIONS IN MARSH AND LOGAN VALLEY. 

III 

THE BASIC ISSUE IN THIS CASE IS WHETHER RESPONDENTS, IN THE EXERCISE
OF ASSERTED FIRST AMENDMENT RIGHTS, MAY DISTRIBUTE HANDBILLS ON LLOYD'S
PRIVATE PROPERTY CONTRARY TO ITS WISHES AND CONTRARY TO A POLICY
ENFORCED AGAINST ALL HANDBILLING.  IN ADDRESSING THIS ISSUE, IT MUST BE
REMEMBERED THAT THE FIRST AND FOURTEENTH AMENDMENTS SAFEGUARD THE
RIGHTS OF FREE SPEECH AND ASSEMBLY BY LIMITATIONS ON STATE ACTION, NOT
ON ACTION BY THE OWNER OF PRIVATE PROPERTY USED NONDISCRIMINATORILY FOR
PRIVATE PURPOSES ONLY.  THE DUE PROCESS CLAUSES OF THE FIFTH AND
FOURTEENTH AMENDMENTS ARE ALSO RELEVANT TO THIS CASE.  THEY PROVIDE
THAT "(NO PERSON SHALL . . . BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY,
WITHOUT DUE PROCESS OF LAW."  THERE IS THE FURTHER PROSCRIPTION IN THE
FIFTH AMENDMENT AGAINST THE TAKING OF "PRIVATE PROPERTY . . . FOR
PUBLIC USE, WITHOUT JUST COMPENSATION." 

ALTHOUGH ACCOMMODATIONS BETWEEN THE VALUES PROTECTED BY THESE THREE
AMENDMENTS ARE SOMETIMES NECCESSARY, AND THE COURTS PROPERLY HAVE SHOWN
A SPECIAL SOLICITUDE FOR THE GUARANTEES OF THE FIRST AMENDMENT, THIS
COURT HAS NEVER HELD THAT A TRESPASSER OR AN UNINVITED GUEST MAY
EXERCISE GENERAL RIGHTS OF FREE SPEECH ON PROPERTY PRIVATELY OWNED AND
USED NONDISCRIMINATORILY FOR PRIVATE PURPOSES ONLY.  EVEN WHERE PUBLIC
PROPERTY IS INVOLVED, THE COURT HAS RECOGNIZED THAT IT IS NOT
NECESSARILY AVAILABLE FOR SPEAKING, PICKETING, OR OTHER COMMUNICATIVE
ACTIVITIES.  MR. JUSTICE BLACK, SPEAKING FOR THE COURT IN ADDERLEY V.
FLORIDA, 385 U.S. 39 (1966), SAID: 

"THE STATE, NO LESS THAN A PRIVATE OWNER OF PROPERTY, HAS POWER TO
PRESERVE THE PROPERTY UNDER ITS CONTROL FOR THE USE TO WHICH IT IS
LAWFULLY DEDICATED.  FOR THIS REASON THERE IS NO MERIT TO THE
PETITIONERS' ARGUMENT THAT THEY HAD A CONSTITUTIONAL RIGHT TO STAY ON
THE PROPERTY, OVER THE JAIL CUSTODIAN'S OBJECTIONS, BECAUSE THIS 'AREA
CHOSEN FOR THE PEACEFUL CIVIL RIGHTS DEOMONSTRATION WAS NOT ONLY
"REASONABLE" BUT ALSO PARTICULARLY APPROPRIATE.  . . . ' SUCH AN
ARGUMENT HAS AS ITS MAJOR UNARTICULATED PREMISE THE ASSUMPTION THAT
PEOPLE WHO WANT TO PROPAGANDIZE PROTESTS OR VIEWS HAVE A CONSTITUTIONAL
RIGHT TO DO SO WHENEVER AND HOWEVER AND WHEREVER THEY PLEASE.  THAT
CONCEPT OF CONSTITUTIONAL LAW WAS VIGOROUSLY AND FORTHRIGHTLY REFJECTED
IN TWO OF THE CASES PETITIONERS RELY ON, COX V. LOUISIANA, (379 U.S.),
AT 554-555 AND 563-564.  WE REJECT IT AGAIN.  THE UNITED STATES
CONSTITUTION DOES NOT FORBID A STATE TO CONTROL THE USE OF ITS OWN
PROPERTY FOR ITS OWN LAWFUL NONDISCRIMINATORY PURPOSE."  385 U.S.,AT 47
48. 

RESPONDENTS CONTEND, HOWEVER, THAT THE PROPERTY OF A LARGE SHOPPING
CENTER IS "OPEN TO THE PUBLIC," SERVES THE SAME PURPOSES AS A "BUSINESS
DISTRICT" OF A MUNICIPALITY, AND THEREFORE HAS BEEN DEDICATED TO
CERTAIN TYPES OF PUBLIC USE.  THE ARGUMENT IS THAT SUCH A CENTER HAS
SIDEWALKS, STREETS, AND PARKING AREAS WHICH ARE FUNCTIONALLY SIMILAR TO
FACILITIES CUSTOMARILY PROVIDED BY MUNICIPALITIES.  IT IS THEN ASSERTED
THAT ALL MEMBERS OF THE PUBLIC, WHETHER INVITED AS CUSTOMERS OR NOT,
HAVE THE SAME RIGHT OF FREE SPEECH AS THEY WOULD HAVE ON THE SIMILAR
PUBLIC FACILITIES IN THE STREETS OF A CITY OR TOWN. 

THE ARGUMENT REACHES TOO FAR.  THE CONSTITUTION BY NO MEANS REQUIRES
SUCH AN ATTENUATED DOCTRINE OF DEDICATION IN THEORY, MARSH V. ALABAMA,
SUPRA, INVOLVED THE ASSUMPTION BY A PRIVATE ENTERPRISE OF ALL OF THE
ATTRIBUTES OF A STATE-CREATED MUNICIPALITY AND THE EXERCISE BY THAT
ENTERPRISE OF SEMI-OFFICIAL MUNICIPAL FUNCTIONS AS A DELEGATE OF THE
STATE.  /13/  IN EFFECT, THE OWNER OF THE COMPANY TOWN WAS PERFORMING
THE FULL SPECTRUM OF MUNICIPAL POWERS AND STOOD IN THE SHOES OF THE
STATE.  IN THE INSTANT CASE THERE IS NO COMPARABLE ASSUMPTION OR
EXERCISE OF MUNICIPAL FUNCTIONS OR POWER. 

NOR DOES PROPERTY LOSE ITS PRIVATE CHARACTER MERELY BECAUSE THE
PUBLIC IS GENERALLY INVITED TO USE IT FOR DESIGNATED PURPOSES.  FEW
WOULD ARGUE THAT A FREE-STANDING STORE, WITH ABUTTING PARKING SPACE FOR
CUSTOMERS, ASSUMES SIGNIFICANT PUBLIC ATTRIBUTES MERELY BECAUSE THE
PUBLIC IS INVITED TO SHOP THERE.  NOR IS SIZE ALONE THE CONTROLLING
FACTOR.  THE ESSENTIALLY PRIVATE CHARACTER OF A STORE AND ITS PRIVATELY
OWNED ABUTTING PROPERTY DOES NOT CHANGE BY VIRTUE OF BEING LARGE OR
CLUSTERED WITH OTHER STORES IN A MODERN SHOPPING CENTER.  THIS IS NOT
TO SAY THAT NO DIFFERENCES MAY EXIST WITH RESPECT TO GOVERNMENT
REGULATION OR RIGHTS OF CITIZENS ARISING BY VIRTUE OF THE SIZE AND
DIVERSITY OF ACTIVITIES CARRIED ON WITHIN A PRIVATELY OWNED FACILITY
SERVING THE PUBLIC.  THERE WILL BE, FOR EXAMPLE, PROBLEMS WITH RESPECT
TO PUBLIC HEALTH AND SAFETY WHICH VARY IN DEGREE AND IN THE APPROPRIATE
GOVERNMENT RESPONSE, DEPENDING UPON THE SIZE AND CHARACTER OF A
SHOPPING CENTER, AN OFFICE BUILDING, A SPORTS ARENA, OR OTHER LARGE
FACILITY SERVING THE PUBLIC FOR COMMERCIAL PURPOSES.  WE DO SAY THAT
THE FIFTH AND FOURTEENTH AMENDMENT RIGHTS OF PRIVATE PROPERTY OWNERS,
AS WELL AS THE FIRST AMENDMENT RIGHTS OF ALL CITIZENS, MUST BE
RESPECTED AND PROTECTED.  THE FRAMERS OF THE CONSTITUTION CERTAINLY DID
NOT THINK THESE FUNDAMENTAL RIGHTS OF A FREE SOCIETY ARE INCOMPATIBLE
WITH EACH OTHER.  THERE MAY BE SITUATIONS WHERE ACCOMMODATIONS BETWEEN
THEM, AND THE DRAWING OF LINES TO ASSURE DUE PROTECTION OF BOTH, ARE
NOT EASY.  BUT ON THE FACTS PRESENTED IN THIS CASE, THE ANSWER IS
CLEAR. 

WE HOLD THAT THERE HAS BEEN NO SUCH DEDICATION OF LLOYD'S PRIVATELY
OWNED AND OPERATED SHOPPING CENTER TO PUBLIC USE AS TO ENTITLE
RESPONDENTS TO EXERCISE THEREIN THE ASSERTED FIRST AMENDMENT RIGHTS. 
ACCORDINGLY, WE REVERSE THE JUDGMENT AND REMAND THE CASE TO THE COURT
OF APPEALS WITH DIRECTIONS TO VACATE THE INJUNCTION. 

    IT IS SO ORDERED. 

/1/  APP. 254. 

/2/  THE MANAGER OF THE CENTER TESTIFIED: 

"Q.  TURNING NOW TO THE GENERAL POLICY IN OPERATION OF THE LLOYD
CENTER, IT'S TRUE THAT THE MALLS AND WALKWAYS WITHIN THE CENTER ARE
OPEN 24 HOURS A DAY; IS THAT RIGHT? 

"A.  WELL, THEY AREN'T PHYSICALLY CLOSED SUCH AS PUTTING A GATE
ACROSS, NO. BUT, THEY ARE NOT-- WHEN PEOPLE ARE THERE AFTER HOURS, THEY
ARE WATCHED.  AND, IF IT IS TOO LATE AT NIGHT, THEY ARE TOLD THE PLACES
ARE CLOSED AND THEY SHOULD LEAVE. 

"Q.  IF I WANTED TO WALK THROUGH THE CENTER MALLS OF LLOYD CENTER AT
3:00 IN THE MORNING, WOULD ANYONE STOP ME? 

"A.  DEPENDING ON WHO THE OFFICER WAS ON DUTY AS TO WHAT HE IS
SUPPOSED TO DO.  BUT, THEY WOULD HAVE MADE INQUIRY AND FOLLOWED TO SEE
WHAT YOU ARE DOING."  APP. 49. 

/3/  THE MANAGER OF THE CENTER, EXPLAINING WHY PRESIDENTIAL
CANDIDATES WERE ALLOWED TO SPEAK, SAID:  "WE DO THAT FOR ONE REASON AND
THAT IS GREAT PUBLIC INTEREST.  IT . . . BRINGS A GREAT MANY PEOPLE TO
LLOYD CENTER WHO MAY SHOP BEFORE THEY LEAVE."  APP. 51. 

/4/  THE CITY OF PORTLAND HAS AN ORDINANCE WHICH MAKES IT UNLAWFUL
TO TRESPASS ON PRIVATE PROPERTY.  PORTLAND, ORE., POLICE CODE SEC. 16
613. 

/5/  THE COURT OF APPEALS ALSO RELIED ON WOLIN V. PORT OF NEW YORK
AUTHORITY, 392 F.2D 83 (CA2 1968). 

/6/  IN COMMENTING ON THE NECESSITY FOR CITIZENS WHO RESIDE IN COMPANY
TOWNS TO HAVE ACCESS TO INFORMATION, THE COURT SAID:  "MANY PEOPLE IN
THE UNITED STATES LIVE IN COMPANY-OWNED TOWNS.  THESE PEOPLE, JUST AS
RESIDENTS OF MUNICIPALITIES, ARE FREE CITIZENS OF THEIR STATE AND
COUNTRY.  JUST AS ALL OTHER CITIZENS THEY MUST MAKE DECISIONS WHICH
AFFECT THE WELFARE OF COMMUNITY AND NATION.  TO ACT AS GOOD CITIZENS
THEY MUST BE INFORMED."  326 U.S.,AT 508. 

/7/  THE COURT ALSO COMMENTED ON THE INCREASING ROLE OF SHOPPING
CENTERS AND ON THE PROBLEM WHICH THEY WOULD PRESENT WITH RESPECT TO
UNION ACTIVITIES IF PICKETING WERE TOTALLY PROSCRIBED WITHIN SHOPPING
CENTER AREAS:  "BUSINESS ENTERPRISES LOCATED IN DOWNTOWN AREAS (ON
PUBLIC STREETS AND SIDEWALKS) WOULD BE SUBJECT TO ON-THE-SPOT PUBLIC
CRITICISM FOR THEIR (LABOR) PRACTICES, BUT BUSINESSES SITUATED IN THE
SUBURBS COULD LARGELY IMMUNIZE THEMSELVES FROM SIMILAR CRITICISM BY
CREATING A CORDON SANITAIRE OF PARKING LOTS AROUND THEIR STORES."  391
U.S.,AT 324-325.  THE CONCURRING OPINION OF MR. JUSTICE DOUGLAS ALSO
EMPHASIZED THE RELATED PURPOSE OF THE PICKETING IN LOGAN VALLEY:
"PICKETING IN REGARD TO LABOR CONDITIONS AT THE WEIS SUPERMARKET IS
DIRECTLY RELATED TO THAT SHOPPING CENTER BUSINESS."  391 U.S.,AT 326. 

/8/  308 F.SUPP.  128, 130, 132 (ORE.  1970); 446 F.2D 545, 546 (CA9
1971). 

/9/  AMALGAMATED FOOD EMPLOYEES UNION V. LOGAN VALLEY PLAZA, 391
U.S. 308, 319 (1968). 

/10/  AS MR. JUSTICE BLACK WAS THE AUTHOR OF THE COURT'S OPINION IN
MARSH, HIS ANALYSIS OF ITS RATIONALE IS ESPECIALLY MEANINGFUL. 

/11/  THE INJUNCTION ISSUED AGAINST LLOYD IS COMPREHENSIVE.  IT
ENJOINS LLOYD (AND OTHERS IN ACTIVE CONCERT OR PARTICIPATION WITH IT)
FROM "PREVENTING OR INTERFERING WITH THE DISTRIBUTION OF NON-COMMERCIAL
HANDBILLS IN A PEACEFUL AND ORDERLY MANNER IN THE MALLS AND WALKWAYS
WITHIN LLOYD CENTER AT TIMES WHEN THEY ARE OPEN TO GENERAL PUBLIC
ACCESS."  THERE IS NO LIMITATION AS TO TYPE OF LITERATURE DISTRIBUTED
EXCEPT THAT IT MUST BE "NON-COMMERCIAL."  NOR, INDEED, IS THERE ANY
LIMITATION IN THIS INJUNCTION AS TO THE NUMBER OF PERSONS PARTICIPATING
IN SUCH ACTIVITIES OR THE FREQUENCY THEREOF.  IRRESPECTIVE OF HOW
CONTROVERSIAL, OFFENSIVE, DISTRACTING, OR EXTENSIVE THE DISTRIBUTIONS
MAY BE, LLOYD HAS BEEN ORDERED TO ALLOW ALL NONCOMMERCIAL HANDBILLING
WHICH ANYONE DESIRES TO UNDERTAKE WITHIN ITS PRIVATE PREMISES. 

/12/  THE COURT'S OPINION IN LOGAN VALLEY DESCRIBED THE OBSTACLES
RESULTING FROM THE LOCATION OF THE WEIS STORE IN THE SHOPPING CENTER,
AND ITS RELATION TO PUBLIC STREETS AND SIDEWALKS:  "PETITIONERS'
PICKETING WAS DIRECTED SOLELY AT ONE ESTABLISHMENT WITHIN THE SHOPPING
CENTER.  THE BERMS SURROUNDING THE CENTER ARE FROM 350 TO 500 FEET AWAY
FROM THE WEIS STORE.  ALL ENTRY INTO THE MALL PREMISES BY CUSTOMERS OF
WEIS, SO FAR AS APPEARS, IS BY VEHICLE FROM THE ROADS ALONGSIDE WHICH
THE BERMS RUN.  THUS THE PLACARDS BEARING THE MESSAGE WHICH PETITIONERS
SEEK TO COMMUNICATE TO PATRONS OF WEIS MUST BE READ BY THOSE TO WHOM
THEY ARE DIRECTED EITHER AT A DISTANCE SO GREAT AS TO RENDER THEM
VIRTUALLY INDECIPHERABLE-- WHERE THE WEIS CUSTOMERS ARE ALREADY WITHIN
THE MALL-- OR WHILE THE PROSPECTIVE READER IS MOVING BY CAR FROM THE
ROADS ONTO THE MALL PARKING AREAS VIA THE ENTRANCE WAYS CUT THROUGH THE
BERMS.  IN ADDITION, THE PICKETS ARE PLACED IN SOME DANGER BY BEING
FORCED TO WALK ALONG HEAVILY TRAVELED ROADS ALONG WHICH TRAFFIC MOVES
CONSTANTLY AT RATES OF SPEED VARYING FROM MODERATE TO HIGH.  LIKEWISE,
THE TASK OF DISTRIBUTING HANDBILLS TO PERSONS IN MOVING AUTOMOBILES IS
VASTLY GREATER (AND MORE HAZARDOUS) THAN IT WOULD BE WERE PETITIONERS
PERMITTED TO PASS THEM OUT WITHIN THE MALL TO PEDESTRIANS."  391
U.S.,AT 321-322. 

/13/  MR. JUSTICE BLACK, DISSENTING IN LOGAN VALLEY, EMPHASIZED THE
DISTINCTION BETWEEN A PRIVATELY OWNED SHOPPING CENTER AND THE "COMPANY
TOWN" INVOLVED IN MARSH, WHICH HE SAID HAD ASSUMED "ALL THE ATTRIBUTES"
OF A MUNICIPALITY.  391 U.S.,AT 332. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE STEWART JOIN, DISSENTING. 

DONALD TANNER, BETSY WHEELER, AND SUSAN ROBERTS (RESPONDENTS)
BROUGHT THIS ACTION FOR A DECLARATORY JUDGMENT THAT THEY HAVE THE RIGHT
UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION TO DISTRIBUTE HANDBILLS IN A SHOPPING CENTER OWNED BY
PETITIONER AND AN INJUNCTION TO ENFORCE THAT RIGHT.  RELYING PRIMARILY
ON OUR VERY RECENT DECISION IN AMALGAMATED FOOD EMPLOYEES UNION V.
LOGAN VALLEY PLAZA, 391 U.S. 308 (1968), THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF OREGON GRANTED THE RELIEF REQUESTED.  308
F.SUPP.  128 (1970).  THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT AFFIRMED.  446 F.2D 545 (1971).  TODAY, THIS COURT REVERSES THE
JUDGMENT OF THE COURT OF APPEALS AND ATTEMPTS TO DISTINGUISH THIS CASE
FROM LOGAN VALLEY.  IN MY VIEW, THE DISTINCTION THAT THE COURT SEES
BETWEEN THE CASES DOES NOT EXIST.  AS I READ THE OPINION OF THE COURT,
IT IS AN ATTACK NOT ONLY ON THE RATIONALE OF LOGAN VALLEY, BUT ALSO ON
THIS COURT'S LONGSTANDING DECISION IN MARSH V. ALABAMA, 326 U.S. 510
(1946).  ACCORDINGLY, I DISSENT. 

        I 

LLOYD CENTER IS A LARGE, MODERN RETAIL SHOPPING CENTER IN PORTLAND,
OREGON.  SPRAWLING OVER 50 ACRES OF LAND, THE CENTER OFFERS TO SHOPPERS
MORE THAN 60 COMMERCIAL BUSINESSES AND PROFESSIONAL OFFICES.  IT ALSO
AFFORDS MORE THAN 850,000 SQUARE FEET OF OPEN AND COVERED OFFSTREET
PARKING SPACE-- ENOUGH TO ACCOMMODATE MORE THAN 1,000 VEHICLES. 
BOUNDED BY FOUR PUBLIC STREETS, LLOYD CENTER HAS A PERIMETER OF ALMOST
ONE AND ONE-HALF MILES.  FOUR PUBLIC STREETS RUNNING EAST-WEST AND ONE
RUNNING NORTH-SOUTH TRAVERSE THE CENTER, AND AT LEAST SIX OTHER PUBLIC
STREETS RUN PARTLY INTO OR AROUND IT.  ALL OF THESE STREETS HAVE
ADJACENT SIDEWALKS.  THESE STREETS AND SIDEWALKS ARE THE ONLY PARTS OF
THE CENTER THAT ARE NOT PRIVATELY OWNED. 

THE PRINCIPAL PORTION OF THE CENTER IS OCCUPIED BY A SHOPPING AREA
CALLED THE "MALL."  COVERING APPROXIMATELY 25 ACRES OF LAND AND HAVING
A PERIMETER OF FOUR-FIFTHS OF A MILE, THE MALL, IN THE WORDS OF THE
DISTRICT COURT, "IS A MULTI-LEVEL COMPLEX OF BUILDINSG, PARKING
FACILITIES, SUB-MALLS, SIDEWALKS, STAIRWAYS, ELEVATORS, ESCALATORS,
BRIDGES, AND GARDENS, AND CONTAINS A SKATING RINK, STATUES, MURALS,
BENCHES, DIRECTORIES, INFORMATION BOOTHS, AND OTHER FACILITIES DESIGNED
TO ATTRACT VISITORS AND MAKE THEM COMFORTABLE."  308 F.SUPP.,AT 129. 
NO PUBLIC STREETS CROSS THE MALL, BUT SOME STORES FACE THOSE STREETS
THAT FORM THE PERIMETER, AND IT IS POSSIBLE TO ENTER THOSE STORES FROM
PUBLIC SIDEWALKS.  OTHER STORES ARE LOCATED IN THE INTERIOR OF THE
MALL, AND CAN ONLY BE REACHED BY USING PRIVATELY OWNED WALKWAYS. 

ON NOVEMBER 14, 1968, RESPONDENTS ENTERED THE MALL AND DISTRIBUTED
HANDBILLS INVITING THE PUBLIC TO A MEETING TO PROTEST THE DRAFT AND THE
VIETNAM WAR.  THE DISTRIBUTION WAS PEACEFUL, NONDISRUPTIVE, AND LITTER
FREE.  SECURITY GUARDS EMPLOYED BY THE CENTER APPROACHED RESPONDENTS,
INDICATED THAT THE CENTER DID NOT PERMIT HANDBILLING IN THE MALL,
SUGGESTED THAT THEY DISTRIBUTE THEIR MATERIALS ON THE PUBLIC SIDEWALKS
AND STREETS, AND INFORMED THEM THAT THEY COULD BE ARRESTED IF THEY
PERSISTED IN HANDBILLING WITHIN THE PRIVATELY OWNED PORTIONS OF THE
CENTER.  THESE GUARDS WORE UNIFORMS THAT WERE VIRTUALLY IDENTICAL TO
THOSE WORN BY REGULAR PORTLAND POLICE AND THEY POSSESSED FULL POLICE
AUTHORITY.  BELIEVING THAT THEY WOULD BE ARRESTED IF THEY DID NOT LEAVE
THE MALL, RESPONDENTS DEPARTED AND SUBSEQUENTLY FILED THIS LAWSUIT. 
/1/ 

A. THE QUESTION PRESENTED BY THIS CASE IS WHETHER ONE OF THE
INCIDENTS OF PETITIONER'S PRIVATE OWNERSHIP OF THE LLOYD CENTER IS THE
POWER TO EXCLUDE CERTAIN FORMS OF SPEECH FROM ITS PROPERTY.  IN OTHER
WORDS, WE MUST DECIDE WHETHER OWNERSHIP OF THE CENTER GIVES PETITIONER
UNFETTERED DISCRETION TO DETERMINE WHETHER OR NOT IT WILL BE USED AS A
PUBLIC FORUM. 

THIS COURT HELD IN MARSH V. ALABAMA, SUPRA, THAT EVEN THOUGH
PROPERTY IS PRIVATELY OWNED, UNDER SOME CIRCUMSTANCES IT MAY BE TREATED
AS THOUGH IT WERE PUBLICLY HELD, AT LEAST FOR PURPOSES OF THE FIRST
AMENDMENT.  IN MARSH, A MEMBER OF THE JEHOVAH'S WITNESSES RELIGIOUS
TRESPASS STATUTE WHEN SHE UNDERTOOK TO DISTRIBUTE RELIGIOUS LITERATURE
IN THE DOWNTOWN SHOPPING AREA OF A PRIVATELY OWNED TOWN WITHOUT
PERMISSION OF THE OWNER.  THE COURT REASONED THAT "(THE MORE AN OWNER,
FOR HIS ADVANTAGE, OPENS UP HIS PROPERTY FOR USE BY THE PUBLIC IN
GENERAL, THE MORE DO HIS RIGHTS BECOME CIRCUMSCRIBED BY THE STATUTORY
AND CONSTITUTIONAL RIGHTS OF THOSE WHO USE IT."  ID., AT 506.  NOTING
THAT THE STIFLING EFFECT PRODUCED BY ANY BAN ON FREE EXPRESSION IN A
COMMUNITY'S CENTRAL BUSINESS DISTRICT WAS THE SAME WHETHER THE BAN WAS
IMPOSED BY PUBLIC OR PRIVATE OWNERS, THE COURT CONCLUDED THAT: 

"WHEN WE BALANCE THE CONSTITUTIONAL RIGHTS OF OWNERS OF

PROPERTY AGAINST THOSE OF THE PEOPLE TO ENJOY FREEDOM OF PRESS

  AND RELIGION, AS WE MUST HERE, WE REMAIN MINDFUL OF THE FACT THAT

  THE LATTER OCCUPY A PREFERRED POSITION.  AS WE HAVE STATED

  BEFORE, THE RIGHT TO EXERCISE THE LIBERTIES SAFEGUARDED BY THE

  FIRST AMENDMENT 'LIES AT THE FOUNDATION OF FREE GOVERNMENT BY

  FREE MEN' AND WE MUST IN ALL CASES 'WEIGH THE CIRCUMSTANCES AND .

  . . APPRAISE THE . . . REASONS . . . IN SUPPORT OF THE REGULATION

  . . . OF THE RIGHTS.'  . . . IN OUR VIEW THE CIRCUMSTANCE THAT

  THE PROPERTY RIGHTS TO THE PREMISES WHERE THE DEPRIVATION OF

 LIBERTY, HERE INVOLVED, TOOK PLACE, WERE HELD BY OTHERS THAN THE

  PUBLIC, IS NOT SUFFICIENT TO JUSTIFY THE STATE'S PERMITTING A

  CORPORATION TO GOVERN A COMMUNITY OF CITIZENS SO AS TO RESTRICT

  THEIR FUNADMENTAL LIBERTIES AND THE ENFORCEMENT OF SUCH RESTRAINT

  BY THE APPLICATION OF A STATE STATUTE."  (FOOTNOTES AND CITATIONS

  OMITTED.)  ID., AT 509. 

WE RELIED HEAVILY ON MARSH IN DECIDING LOGAN VALLEY, SUPRA.  IN
LOGAN VALLEY, A SHOPPING CENTER IN ITS FORMATIVE STATES CONTAINED A
SUPERMARKET AND DEPARTMENT STORE.  THE SUPERMARKET EMPLOYED A STAFF
COMPOSED OF ONLY NONUNION EMPLOYEES.  MEMBERS OF AMALGAMATED FOOD
EMPLOYEES UNION, LOCAL 590, BEGAN TO PICKET THE MARKET WITH SIGNS
STATING THAT THE MARKET'S EMPLOYEES WERE NOT RECEIVING UNION WAGES OR
UNION BENEFITS.  THE PICKETING WAS CARRIED OUT ALMOST ENTIRELY IN THE
PARCEL PICKUP AREA AND THAT PORTION OF THE PARKING LOT IMMEDIATELY
ADJACENT THERETO.  391 U.S.,AT 311.  THE SUPERMARKET SOUGHT AND
OBTAINED AN INJUNCTION FROM A PENNSYLVANIA STATE COURT PROHIBITING THE
UNION MEMBERS FROM TRESPASSING UPON THE PARKING AREAS OR IN THE STORE,
THE EFFECT OF WHICH WAS TO PROHIBIT PICKETING AND HANDBILLING ON ANY
PART OF THE PRIVATE PROPERTY AND TO REGULATE THE UNION MEMBERS TO
CARRYING SIGNS ON THE PUBLICLY OWNED EARTHEN BERMS THAT SURROUNDED THE
SHOPPING CENTER.  /2/  FINDING THAT THE SHOPPING CENTER WAS THE
FUNCTIONAL EQUIVALENT OF THE BUSINESS DISTRICT INVOLVED IN MARSH, WE
COULD SEE "NO REASON WHY ACCESS TO A BUSINESS DISTRICT IN A COMPANY
TOWN FOR THE PURPOSE OF EXERCISING FIRST AMENDMENT RIGHTS SHOULD BE
CONSTITUTIONALLY REQUIRED, WHILE ACCESS FOR THE SAME PURPOSE TO
PROPERTY FUNCTIONING AS A BUSINESS DISTRICT SHOULD BE LIMITED SIMPLY
BECAUSE THE PROPERTY SURROUNDING THE 'BUSINESS DISTRICT' IS NOT UNDER
THE SAME OWNERSHIP."  ID., AT 319.  THUS, WE HELD THAT THE UNION
ACTIVITY WAS CONSTITUTIONALLY PROTECTED.     B. IN THE INSTANT CASE THE
DISTRICT COURT FOUND THAT "THE MALL IS THE FUNCTIONAL EQUIVALENT OF A
PUBLIC BUSINESS DISTRICT" WITHIN THE MEANING OF MARSH AND LOGAN
VALLEY.  THE COURT OF APPEALS SPECIFICALLY AFFIRMED THIS FINDING, AND
IT IS OVERWHELMINGLY SUPPORTED BY THE RECORD. 

THE LLOYD CENTER IS SIMILAR TO LOGAN VALLEY PLAZA IN SEVERAL
RESPECTS:  BOTH ARE BORDERED BY PUBLIC ROADS, AND THE ENTRANCES OF BOTH
LEAD DIRECTLY INTO THE PUBLIC ROADS; BOTH CONTAIN LARGE PARKING AREAS
AND PRIVATELY OWNED WALKWAYS LEADING FROM STORE TO STORE; AND THE
GENERAL PUBLIC HAS UNRESTRICTED ACCESS TO BOTH.  THE PRINCIPAL
DIFFERENCES BETWEEN THE TWO CENTERS ARE THAT THE LLOYD CENTER IS LARGER
THAN LOGAN VALLEY, THAT LLOYD CENTER CONTAINS A RANGE OF PROFESSIONAL
AND NONPROFESSIONAL SERVICES THAT WERE NOT FOUND IN LOGAN VALLEY, AND
THAT LLOYD CENTER IS MUCH MORE INTERTWINED WITH PUBLIC STREETS THAN
LOGAN VALLEY.  ALSO, AS IN MARSH, SUPRA, LLOYD'S PRIVATE POLICE ARE
GIVEN FULL POLICE POWER BY THE CITY OF PORTLAND, EVEN THOUGH THEY ARE
HIRED, FIRED, CONTROLLED, AND PAID BY THE OWNERS OF THE CENTER.  THIS
WAS NOT TRUE IN LOGAN VALLEY. 

IN 1954, WHEN LLOYD'S OWNERS FIRST ACQUIRED LAND FOR THE CENTER, THE
CITY OF PORTLAND VACATED ABOUT EIGHT ACRES OF PUBLIC STREETS FOR THEIR
USE.  THE ORDINANCE ACCOMPLISHING THE VACATION SETS FORTH THE CITY'S
VIEW OF THE CENTER'S FUNCTION: 

  "WHEREAS THE COUNCIL FINDS THAT THE REASON FOR THESE VACATIONS

  IS FOR GENERAL BUILDING PURPOSES TO BE USED IN THE DEVELOPMENT OF

  A GENERAL RETAIL BUSINESS DISTRICT AND THE DEVELOPMENT OF AN

  ADEQUATE PARKING TO SUPPORT SAID DISTRICT; . . . THE COUNCIL . .

  . FINDS THAT IN ORDER TO DEVELOP A LARGE RETAIL UNIT SUCH AS

  CONTEMPLATED BY LLOYD CORPORATION, LTD., IT IS NECESSARY TO

  VACATE THE STREETS ABOVE MENTIONED.  . . . "  ORDINANCE NO.

  101288, NOV. 10, 1954, APP. 202. 

THE 1954 ORDINANCE ALSO INDICATES THAT THE CITY OF PORTLAND WAS AWARE
THAT AS LLOYD CENTER DEVELOPED, IT WOULD BE NECESSARY FOR THE CITY TO
BUILD NEW STREETS AND TO TAKE OTHER STEPS TO CONTROL THE TRAFFIC FLOW
THAT THE CENTER WOULD ENGENDER.  APP. 202, 208-209.  IN 1958, AN
EMERGENCY ORDINANCE WAS PASSED GIVING THE LLOYD CENTER AN EXTENSION OF
TIME TO MEET VARIOUS CONDITIONS ON WHICH THE 1954 VACATIONS WERE MADE. 
THE CITY COUNCIL VIEWED THE PROJECTED CENTER AS OFFERING AN
"OPPORTUNITY FOR MUCH NEEDED EMPLOYMENT" AND CONCLUDED THAT THE
EMERGENCY ORDINANCE WAS "NECESSARY FOR THE IMMEDIATE PRESERVATION OF
THE PUBLIC HEALTH, PEACE AND SAFETY OF THE CITY OF PORTLAND." 
ORDINANCE NO. 107641, MARCH 20, 1958, APP. 196. 

IN SUM, THE LLOYD CENTER IS AN INTEGRAL PART OF THE PORTLAND
COMMUNITY.  FROM ITS INCEPTION, THE CITY VIEWED IT AS A "BUSINESS
DISTRICT" OF THE CITY AND DEPENDED ON IT TO SUPPLY MUCH-NEEDED
EMPLOYMENT OPPORTUNITIES.  TO INSURE THE SUCCESS OF THE CENTER, THE
CITY CAREFULLY INTEGRATED IT INTO THE PATTERN OF STREETS ALREADY
ESTABLISHED AND PLANNED FUTURE DEVELOPMENT OF STREETS AROUND THE
CENTER.  IT IS PLAIN, THEREFORE, THAT LLOYD CENTER IS THE EQUIVALENT OF
A PUBLIC "BUSINESS DISTRICT" WITHIN THE MEANING OF MARSH AND LOGAN
VALLEY.  IN FACT, THE LLOYD CENTER IS MUCH MORE ANALOGOUS TO THE
COMPANY TOWN IN MARSH THAN WAS THE LOGAN VALLEY PLAZA. 

PETITIONER AGREES WITH OUR DECISION IN LOGAN VALLEY THAT IT IS
PROPER FOR COURTS TO TREAT SHOPPING CENTERS DIFFERENTLY FROM OTHER
PRIVATELY OWNED PROPERTY, LIKE PRIVATE RESIDENCES.  THE BRIEF FOR
PETITIONER STATES AT PAGES 9-10 THAT 

"(A) SHOPPING CENTER, WHICH FALLS SOMEWHERE BETWEEN THE EXTREMES OF A
COMPANY TOWN AND A PRIVATE RESIDENCE, IS NEITHER ABSOLUTELY SUBJECT TO
THE CONTROL OF THE OWNER NOR IS IT ABSOLUTELY OPEN TO ALL THOSE WISHING
TO ENGAGE IN SPEECH ACTIVITIES.  . . .

        .          .          .          . 

     "EACH CASE REQUIRES AN APPROPRIATE RESOLUTION OF THE

  CONFLICTING INTERESTS OF SHOPPING CENTER OWNERS AND THOSE SEEKING

TO ENGAGE IN SPEECH ACTIVITIES ON SHOPPING CENTER PREMISES." 

PETITIONER CONTENDS THAT OUR DECISION IN LOGAN VALLEY STRUCK THE
APPROPRIATE BALANCE BETWEEN FIRST AMENDMENT AND PRIVATE PROPERTY
INTERESTS.  THE ARGUMENT IS MADE, HOWEVER, THAT THIS CASE SHOULD BE
DISTINGUISHED FROM LOGAN VALLEY, AND THIS IS THE ARGUMENT THAT THE
COURT ACCEPTS. 

        II 

AS I HAVE POINTED OUT ABOVE, LLOYD CENTER IS EVEN MORE CLEARLY THE
EQUIVALENT OF A PUBLIC BUSINESS DISTRICT THAN WAS LOGAN VALLEY PLAZA. 
THE FIRST AMENDMENT ACTIVITY IN BOTH LOGAN VALLEY AND THE INSTANT CASE
WAS PEACEFUL AND NONDISRUPTIVE; AND BOTH CASES INVOLVE TRADITIONALLY
ACCEPTABLE MODES OF SPEECH.  WHY THEN SHOULD THERE BE A DIFFERENT
RESULT HERE?  THE COURT'S ANSWER IS THAT THE SPEECH IN THIS CASE WAS
DIRECTED AT TOPICS OF GENERAL INTEREST-- THE VIETNAM WAR AND THE DRAFT-
WHEREAS THE SPEECH IN LOGAN VALLEY WAS DIRECTED TO THE ACTIVITIES OF A
STORE IN THE SHOPPING CENTER, AND THAT THIS FACTUAL DIFFERENCE IS OF
CONSTITUTIONAL DIMENSIONS.  I CANNOT AGREE. 

A. IT IS TRUE THAT IN LOGAN VALLEY WE EXPLICITLY LEFT OPEN THE
QUESTION WHETHER "PROPERTY RIGHTS COULD, CONSISTENTLY WITH THE FIRST
AMENDMENT, JUSTIFY A BAR ON PICKETING (OR HANDBILLING) WHICH WAS NOT .
. . DIRECTLY RELATED IN ITS PURPOSE TO THE USE TO WHICH THE SHOPPING
CENTER PROPERTY WAS BEING PUT."  391 U.S.,AT 320 N. 9.  BUT, I BELIEVE
THAT THE COURT ERRS IN CONCLUDING THAT THIS ISSUE MUST BE FACED IN THE
INSTANT CASE. 

THE DISTRICT COURT OBSERVED THAT LLOYD CENTER INVITES SCHOOLS TO
HOLD FOOTBALL RALLIES, PRESIDENTIAL CANDIDATES TO GIVE SPEECHES, AND
SERVICE ORGANIZATIONS TO HOLD VETERANS DAY CEREMONIES ON ITS PREMISES. 
THE COURT ALSO OBSERVED THAT THE CENTER PERMITS THE SALVATION ARMY, THE
VOLUNTEERS OF AMERICA, AND THE AMERICAN LEGION TO SOLICIT FUNDS IN THE
MALL.  THUS, THE COURT CONCLUDED THAT THE CENTER WAS ALREADY OPEN TO
FIRST AMENDMENT ACTIVITIES, AND THAT RESPONDENTS COULD NOT
CONSTITUTIONALLY BE EXCLUDED FROM DISTRIBUTING LEAFLETS SOLELY BECAUSE
LLOYD CENTER WAS NOT ENAMORED OF THE FORM OR SUBSTANCE OF THEIR
SPEECH.  THE COURT OF APPEALS AFFIRMED, TAKING THE POSITION THAT IT WAS
NOT EXTENDING EITHER LOGAN VALLEY OR MARSH.  IN OTHER WORDS, THE
DISTRICT COURT FOUND THAT LLOYD CENTER HAD DELIBERATELY CHOSEN TO OPEN
ITS PRIVATE PROPERTY TO A BROAD RANGE OF EXPRESSION AND THAT HAVING
DONE SO IT COULD NOT CONSTITUTIONALLY EXCLUDE RESPONDENTS, AND THE
COURT OF APPEALS AFFIRMED THIS FINDING. 

PETITIONER APPARENTLY CONCEDES THAT IF THE LOWER COURTS ARE CORRECT,
RESPONDENTS SHOULD PREVAIL.  BRIEF FOR PETITIONER 19.  THIS CONCESSION
IS, IN FACT, MANDATED BY OUR DECISION IN LOGAN VALLEY, IN WHICH WE
SPECIFICALLY HELD THAT MEMBERS OF THE PUBLIC MAY EXERCISE THEIR FIRST
AMENDMENT RIGHTS ON THE PREMISES OF A SHOPPING CENTER THAT IS THE
FUNCTIONAL EQUIVALENT OF A BUSINESS DISTRICT IF THEIR ACTIVITY IS
"GENERALLY CONSONANT WITH THE USE TO WHICH THE PROPERTY IS ACTUALLY
PUT."  391 U.S.,AT 320.  IF THE PROPERTY OF LLOYD CENTER IS GENERALLY
OPEN TO FIRST AMENDMENT ACTIVITY, RESPONDENTS CANNOT BE EXCLUDED. 

ON VETERANS DAY, LLOYD CENTER ALLOWS ORGANIZATIONS TO PARADE THROUGH
THE CENTER WITH FLAGS, DRUMMERS, AND COLOR GUARD UNITS AND TO HAVE A
SPEAKER DELIVER AN ADDRESS ON THE MEANING OF VETERANS DAY AND THE VALOR
OF AMERICAN SOLDIERS.  PRESIDENTIAL CANDIDATES HAVE BEEN PERMITTED TO
SPEAK WITHOUT RESTRICTION ON THE ISSUES OF THE DAY, WHICH PRESUMABLY
INCLUDE WAR AND PEACE.  THE AMERICAN LEGION IS ANNUALLY GIVEN
PERMISSION TO SELL POPPIES IN THE MALL BECAUSE LLOYD CENTER BELIEVES
THAT "VETERANS . . . DESERVES (SIC) SOME COMFORT AND SUPPORT BY THE
PEOPLE OF THE UNITED STATES."  /3/  IN LIGHT OF THESE FACTS, I PERCEIVE
NO BASIS FOR DEPRIVING RESPONDENTS OF THE OPPORTUNITY TO DISTRIBUTE
LEAFLETS INVITING PATRONS OF THE CENTER TO ATTEND A MEETING IN WHICH
DIFFERENT POINTS OF VIEW WOULD BE EXPRESSED FROM THOSE HELD BY THE
ORGANIZATIONS AND PERSONS PRIVILEGED TO USE LLOYD CENTER AS A FORUM FOR
PARADING THEIR IDEAS AND SYMBOLS. 

I BELIEVE THAT THE LOWER COURTS CORRECTLY HELD THAT RESPONDENTS'
ACTIVITIES WERE DIRECTLY RELATED IN PURPOSE TO THE USE TO WHICH THE
SHOPPING CENTER WAS BEING PUT.  IN MY VIEW, THEREFORE, THIS CASE
PRESENTS NO OCCASION TO CONSIDER WHETHER OR NOT LOGAN VALLEY SHOULD BE
EXTENDED.  BUT, THE COURT TAKES A DIFFERENT VIEW AND CONCLUDES THAT
LLOYD CENTER WAS NEVER OPENED TO FIRST AMENDMENT ACTIVITY.  EVEN IF I
COULD AGREE WITH THE COURT ON THIS POINT, I WOULD NOT REACH A DIFFERENT
RESULT IN THIS CASE. 

B. IF RESPONDENTS HAD DISTRIBUTED HANDBILLS COMPLAINING ABOUT ONE OR
MORE STORES IN LLOYD CENTER OR ABOUT THE CENTER ITSELF, PETITIONER
CONCEDES THAT OUR DECISION IN LOGAN VALLEY WOULD INSULATE THAT CONDUCT
FROM PROSCRIPTION BY THE CENTER.  /4/  I CANNOT SEE ANY LOGICAL REASON
TO TREAT DIFFERENTLY SPEECH THAT IS RELATED TO SUBJECTS OTHER THAN THE
CENTER AND ITS MEMBER STORES. 

WE MUST REMEMBER THAT IT IS A BALANCE THAT WE ARE STRIKING-- A
BALANCE BETWEEN THE FREEDOM TO SPEAK, A FREEDOM THAT IS GIVEN A
PREFERRED PLACE IN OUR HIERARCHY OF VALUES, AND THE FREEDOM OF A
PRIVATE PROPERTY OWNER TO CONTROL HIS PROPERTY.  WHEN THE COMPETING
INTERESTS ARE FAIRLY WEIGHED, THE BALANCE CAN ONLY BE STRUCK IN FAVOR
OF SPEECH. 

MEMBERS OF THE PORTLAND COMMUNITY ARE ABLE TO SEE DOCTORS, DENTISTS,
LAWYERS, BANKERS, TRAVEL AGENTS, AND PERSONS OFFERING COUNTLESS OTHER
SERVICES IN LLOYD CENTER.  THEY CAN BUY ALMOST ANYTHING THAT THEY WANT
OR NEED THERE.  FOR MANY PORTLAND CITIZENS, LLOYD CENTER WILL SO
COMPLETELY SATISFY THEIR WANTS THAT THEY WILL HAVE NO REASON TO GO
ELSEWHERE FOR GOODS OR SERVICES.  IF SPEECH IS TO REACH THESE PEOPLE,
IT MUST REACH THEM IN LLOYD CENTER.  THE CENTER ITSELF RECOGNIZES
THIS.  FOR EXAMPLE, IN 1964 ITS DIRECTOR OF PUBLIC RELATIONS OFFERED
CANDIDATES FOR PRESIDENT AND VICE PRESIDENT THE USE OF THE CENTER FOR
POLITICAL SPEECHES, BOASTING "THAT OUR CONVENIENT LOCATION AND SETTING
WOULD PROVIDE THE LARGEST AUDIENCE (THE CANDIDATES) COULD ATTRACT IN
OREGON."  APP. 187. 

FOR MANY PERSONS WHO DO NOT HAVE EASY ACCESS TO TELEVISION, RADIO,
THE MAJOR NEWSPAPERS, AND THE OTHER FORMS OF MASS MEDIA, THE ONLY WAY
THEY CAN EXPRESS THEMSELVES TO A BROAD RANGE OF CITIZENS ON ISSUES OF
GENERAL PUBLIC CONCERN IS TO PICKET, OR TO HANDBILL, OR TO UTILIZE
OTHER FREE OR RELATIVELY INEXPENSIVE MEANS OF COMMUNICATION.  THE ONLY
HOPE THAT THESE PEOPLE HAVE TO BE ABLE TO COMMUNICATE EFFECTIVELY IS TO
BE PERMITTED TO SPEAK IN THOSE AREAS IN WHICH MOST OF THEIR FELLOW
CITIZENS CAN BE FOUND.  ONE SUCH AREA IS THE BUSINESS DISTRICT OF A
CITY OR TOWN OR ITS FUNCTIONAL EQUIVALENT.  /5/  AND THIS IS WHY
RESPONDENTS HAVE A TREMENDOUS NEED TO EXPRESS THEMSELVES WITHIN LLOYD
CENTER. 

PETITIONER'S INTERESTS, ON THE OTHER HAND, PALE IN COMPARISON.  FOR
EXAMPLE, PETITIONER URGES THAT RESPONDENTS' FIRST AMENDMENT ACTIVITY
WOULD DISTURB THE CENTER'S CUSTOMERS.  IT IS UNDISPUTED THAT SOME
PATRONS WILL BE DISTURBED BY ANY FIRST AMENDMENT ACTIVITY THAT GOES ON,
REGARDLESS OF ITS OBJECT.  BUT, THERE IS NO EVIDENCE TO INDICATE THAT
SPEECH DIRECTED TO TOPICS UNRELATED TO THE SHOPPING CENTER WOULD BE
MORE LIKELY TO IMPAIR THE MOTIVATION OF CUSTOMERS TO BUY THAN SPEECH
DIRECTED TO THE USES TO WHICH THE CENTER IS PUT, WHICH PETITIONER
CONCEDES IS CONSTITUTIONALLY PROTECTED UNDER LOGAN VALLEY.  ON THE
CONTRARY, COMMON SENSE WOULD INDICATE THAT SPEECH THAT IS CRITICAL OF A
SHOPPING CENTER OR ONE OR MORE OF ITS STORES IS MORE LIKELY TO DETER
CUSTOMERS FROM PURCHASING GOODS OR SERVICES THAN SPEECH OR ANY OTHER
SUBJECT.  MOREOVER, PETITIONER ACKNOWLEDGES THAT RESPONDENTS HAVE A
CONSTITUTIONAL RIGHT TO "LEAFLET" ON ANY SUBJECT ON PUBLIC STREETS AND
SIDEWALKS WITHIN LLOYD CENTER.  IT IS DIFFICULT FOR ME TO UNDERSTAND
WHY LEAFLETTING IN THE MALL WOULD BE SO MUCH MORE DISTURBING TO THE
CENTER'S CUSTOMERS. 

I ALSO FIND PATENTLY FRIVOLOUS PETITIONER'S ARGUMENT THAT IF
HANDBILLING IN THE MALL IS PERMITTED, LLOYD CENTER WOULD FACE
INORDINATE DIFFICULTIES IN REMOVING LITTER FROM ITS PREMISES.  THE
DISTRICT COURT FOUND THAT RESPONDENTS' ACTIVITIES WERE LITTER-FREE. 
ASSUMING, ARGUENDO, THAT IF RESPONDENTS HAD BEEN PERMITTED TO CONTINUE
THEIR ACTIVITIES, LITTER MIGHT HAVE RESULTED, I THINK THAT IT IS
IMMEDIATELY APPARENT THAT EVEN IF RESPONDENTS CONFINED THEIR ACTIVITIES
TO THE PUBLIC STREETS AND SIDEWALKS OF THE CENTER AS LLOYD'S PRIVATE
POLICE SUGGESTED, LITTER WOULD HAVE BEEN A PROBLEM AS THE RECIPIENTS OF
THE HANDBILLS CARRIED THEM TO THE SHOPPING AND PARKING AREAS. 
PETITIONER CONCEDES THAT IT WOULD HAVE HAD TO REMOVE THIS LITTER. 
THERE IS NO EVIDENCE THAT THE AMOUNT OF LITTER WOULD HAVE SUBSTANTIALLY
INCREASED IF RESPONDENTS DISTRIBUTED THE LEAFLETS WITHIN THE MALL. 
BUT, EVEN ASSUMING THAT THE LITTER MIGHT HAVE INCREASED, THAT IS NOT A
SUFFICIENT REASON FOR BARRING FIRST AMENDMENT ACTIVITY.  SEE, E.G.,
SCHNEIDER V. STATE, 308 U.S. 147 (1939).  IF PETITIONER IS TRULY
CONCERNED ABOUT LITTER, IT SHOULD ACCEPT A PREVIOUS SUGGESTION BY THIS
COURT AND PROSECUTE THOSE WHO THROW HANDBILLS AWAY, NOT THOSE WHO USE
THEM FOR COMMUNICATIVE PURPOSES.  /6/ ID., AT 162. 

IN SUM, THE BALANCE PLAINLY MUST BE STRUCK IN FAVOR OF SPEECH. 

C. PETITIONER'S OTHER GROUNDS FOR DENYING RESPONDENTS ACCESS TO THE
MALL CAN BE DEALT WITH QUICKLY.  THE ASSERTION IS MADE THAT PETITIONER
HAD THE RIGHT TO REGULATE THE MANNER IN WHICH FIRST AMENDMENT ACTIVITY
TOOK PLACE ON ITS PROPERTY, AND THAT BECAUSE THE PUBLIC STREETS AND
SIDEWALKS INSIDE THE CENTER OFFERED SUFFICIENT ACCESS TO THE PUBLIC, IT
WAS PERMISSIBLE TO DENY RESPONDENTS USE OF THE MALL.  THE DISTRICT
COURT FOUND THAT CERTAIN STORES IN THE CENTER COULD ONLY BE REACHED BY
USING THE PRIVATE WALKWAYS OF THE MALL.  THOSE PERSONS WHO DROVE INTO
THE CENTER, PARKED IN THE PRIVATELY OWNED PARKING LOTS, AND WHO ENTERED
THE STORES ACCESSIBLE ONLY THROUGH THE MALL COULD NOT BE SAFELY REACHED
FROM THE PUBLIC STREETS AND SIDEWALKS.  HENCE, THE DISTRICT COURT
PROPERLY FOUND THAT THE MALL WAS THE ONLY PLACE WHERE RESPONDENTS HAD
REASONABLE ACCESS TO ALL OF LLOYD CENTER'S PATRONS.  /7/  308
F.SUPP.,AT 131.  AT ONE POINT IN THIS LITIGATION, PETITIONER ALSO
ATTEMPTED TO ASSERT THAT IT WAS ENTITLED TO BAR RESPONDENTS'
DISTRIBUTION OF LEAFLETS ON THE GROUND THAT THE LEAFLETS VIOLATED THE
SELECTIVE SERVICE LAWS.  THE DISTRICT COURT FOUND THAT THIS CONTENTION
WAS WITHOUT MERIT.  308 F.SUPP.,AT 132-133.  IT SEEMS THAT PETITIONER
HAS ABANDONED THE CONTENTION IN THIS COURT.  IN ANY EVENT, IT IS
MERITLESS FOR THE REASONS GIVEN BY THE DISTRICT COURT. 

        III 

IN HIS DISSENTING OPINION IN LOGAN VALLEY, 391 U.S.,AT 339, MR.
JUSTICE WHITE SAID THAT THE RATIONALE OF THAT CASE WOULD REQUIRE
AFFIRMANCE OF A CASE LIKE THE INSTANT ONE.  MR. JUSTICE WHITE, AT THAT
TIME, WAS CONVINCED THAT OUR DECISION IN LOGAN VALLEY, INCORRECT THOUGH
HE THOUGHT IT TO BE, REQUIRED THAT ALL PEACEFUL AND NON-DISRUPTIVE
SPEECH BE PERMITTED ON PRIVATE PROPERTY THAT WAS THE FUNCTIONAL
EQUIVALENT OF A PUBLIC BUSINESS DISTRICT. 

AS STATED ABOVE, I BELIEVE THAT THE EARLIER VIEW OF MR. JUSTICE
WHITE IS THE CORRECT ONE, THAT THERE IS NO LEGITIMATE WAY OF FOLLOWING
LOGAN VALLEY AND NOT APPLYING IT TO THIS CASE.  BUT, ONE MAY SUSPECT
FROM READING THE OPINION OF THE COURT THAT IT IS LOGAN VALLEY ITSELF
THAT THE COURT FINDS BOTHERSOME.  THE VOTE IN LOGAN VALLEY WAS 6-3, AND
THAT DECISION IS ONLY FOUR YEARS OLD.  BUT, I AM AWARE THAT THE
COMPOSITION OF THIS COURT HAS RADICALLY CHANGED IN FOUR YEARS.  THE
FACT REMAINS THAT LOGAN VALLEY IS BINDING UNLESS AND UNTIL IT IS
OVERRULED.  THERE IS NO VALID DISTINCTION BETWEEN THAT CASE AND THIS
ONE, AND, THEREFORE, THE RESULTS IN BOTH CASES SHOULD BE THE SAME. 

WHILE THE MAJORITY IS OBVIOUSLY TROUBLED BY THE RATIONALE OF LOGAN
VALLEY, IT IS INTERESTING THAT NONE OF THE PARTICIPANTS IN THIS
LITIGATION HAVE EXPERIENCED ANY SIMILAR DIFFICULTY.  LLOYD CORP. URGES
THAT LOGAN VALLEY WAS CORRECTLY DECIDED, THAT IT STRUCK A BALANCE THAT
THE FIRST AMENDMENT REQUIRED US TO STRIKE, AND THAT IT HAS FULLY
COMPLIED WITH LOGAN VALLEY WITH RESPECT TO LABOR ACTIVITY.  THE
AMERICAN RETAIL FEDERATION URGES IN ITS BRIEF AS AMICUS CURIAE THAT A
BALANCE MUST BE STRUCK BETWEEN THE PROPERTY INTERESTS OF SHOPPING
CENTER OWNERS AND THE FIRST AMENDMENT INTERESTS OF SHOPPING CENTER
USERS.  IT DOES NOT URGE THAT LOGAN VALLEY WAS INCORRECTLY DECIDED IN
ANY WAY. 

IT IS TRUE THAT LLOYD CORP. AND THE AMERICAN RETAIL FEDERATION ASK
THE COURT TO DISTINGUISH THIS CASE FROM LOGAN VALLEY, BUT WHAT IS MORE
IMPORTANT IS THAT THEY RECOGNIZE THAT WHEN MASSIVE AREAS OF PRIVATE
PROPERTY ARE OPENED TO THE PUBLIC, THE FIRST AMENDMENT MAY COME INTO
PLAY.  THEY WOULD LIKE, OF COURSE, TO LIMIT THE IMPACT OF SPEECH ON
THEIR PRIVATE PROPERTY, BUT WHETHER OR NOT THEY CAN DO SO CONSISTENTLY
WITH THE FIRST AMENDMENT IS A QUESTION THAT THIS COURT MUST RESOLVE. 

WE NOTED IN LOGAN VALLEY THAT THE LARGE-SCALE MOVEMENT OF THIS
COUNTRY'S POPULATION FROM THE CITIES TO THE SUBURBS HAS BEEN
ACCOMPANIED BY THE GROWTH OF SUBURBAN SHOPPING CENTERS.  IN RESPONSE TO
THIS PHENOMENON, CITIES LIKE PORTLAND ARE PROVIDING FOR LARGE-SCALE
SHOPPING AREAS WITHIN THE CITY.  IT IS OBVIOUS THAT PRIVATELY OWNED
SHOPPING AREAS COULD PROVE TO BE GREATLY ADVANTAGEOUS TO CITIES.  THEY
ARE TOTALLY SELF-SUFFICIENT, NEEDING NO FINANCIAL SUPPORT FROM LOCAL
GOVERNMENT; AND IF, AS HERE, THEY TRULY ARE THE FUNCTIONAL EQUIVALENT
OF A PUBLIC BUSINESS AREA, THE CITY REAPS THE ADVANTAGES OF HAVING SUCH
AN AREA WITHOUT PAYING FOR THEM.  SOME OF THE ADVANTAGES ARE AN
INCREASED TAX BASE, A DRAWING ATTRACTION FOR RESIDENTS, AND A STIMULUS
TO FURTHER GROWTH. 

IT WOULD NOT BE SURPRISING IN THE FUTURE TO SEE CITIES RELY MORE
ANDMORE ON PRIVATE BUSINESSES TO PERFORM FUNCTIONS ONCE PERFORMED BY
GOVERNMENTAL AGENCIES.  THE ADVANTAGE OF REDUCED EXPENSES AND AN
INCREASED TAX BASE CANNOT BE OVERSTATED.  AS GOVERNMENTS RELY ON
PRIVATE ENTERPRISES, PUBLIC PROPERTY DECREASES IN FAVOR OF PRIVATELY
OWNED PROPERTY.  IT BECOMES HARDER AND HARDER FOR CITIZENS TO FIND
MEANS TO COMMUNICATE WITH OTHER CITIZENS.  ONLY THE WEALTHY MAY FIND
EFFECTIVE COMMUNICATION POSSIBLE UNLESS WE ADHERE TO MARSH V. ALABAMA
AND CONTINUE TO HOLD THAT "(THE MORE AN OWNER, FOR HIS ADVANTAGE, OPENS
UP HIS PROPERTY FOR USE BY THE PUBLIC IN GENERAL, THE MORE DO HIS
RIGHTS BECOME CIRCUMSCRIBED BY THE STATUTORY AND CONSTITUTIONAL RIGHTS
OF THOSE WHO USE IT," 326 U.S.,AT 506. 

WHEN THERE ARE NO EFFECTIVE MEANS OF COMMUNICATION, FREE SPEECH IS A
MERE SHIBBOLETH.  I BELIEVE THAT THE FIRST AMENDMENT REQUIRES IT TO BE
A REALITY.  ACCORDINGLY, I WOULD AFFIRM THE DECISION OF THE COURT OF
APPEALS. 

/1/  THERE IS SOME CONFLICT IN THE TESTIMONY AS TO PRECISELY WHAT
THE GUARDS TOLD RESPONDENTS WITH RESPECT TO THE LIKELIHOOD THAT THEY
WOULD BE ARRESTED IF THEY DID NOT LEAVE THE MALL.  THE AGREED FACTS IN
THE PRETRIAL ORDER STATES THAT THE GUARDS SAID THAT RESPONDENTS COULD
BE ARRESTED IF THEY REFUSED TO LEAVE.  THE DISTRICT COURT FOUND THAT
THE GUARDS CAUSED RESPONDENTS TO BELIEVE THAT THEY WOULD BE ARRESTED
AND THAT THIS WAS THE REASON THAT THEY LEFT THE MALL.  THE COURT OF
APPEALS AFFIRMED THIS FINDING AND IT IS SUPPORTED BY THE RECORD. 

/2/  LOGAN VALLEY INVOLVED BOTH PICKETING AND HANDBILLING, SINCE THE
EFFECT OF THE STATE COURT INJUNCTION WAS TO BAN BOTH FORMS OF
EXPRESSION.  391 U.S.,AT 322-323 AND N. 12.  WE MADE IT CLEAR IN LOGAN
VALLEY THAT WHILE THERE WERE OBVIOUS DIFFERENCES BETWEEN PICKETING AND
HANDBILLING, BOTH INVOLVED A MODICUM OF A BURDEN ON PROPERTY.  WE HELD
THAT NEITHER COULD BE BARRED FROM A SHOPPING CENTER THAT WAS THE
FUNCTIONAL EQUIVALENT OF A PUBLIC BUSINESS DISTRICT.  ID., AT 315-316. 

/3/  APP. 62 (TESTIMONY OF R. HORN, MANAGER OF LLOYD CENTER).  IT IS
WIDELY KNOWN THAT THE AMERICAN LEGION IS A VETERAN'S ORGANIZATION.  SEE
1 ENCYCLOPEDIA OF ASSOCIATIONS 997 (7TH ED. 1972).  IT IS ALSO COMMON
KNOWLEDGE THAT THE POPPY IS THE SYMBOL SOLD BY THE LEGION TO FINANCE
VARIOUS OF ITS ACTIVITIES.  AT TIMES THE PROCEEDS FROM SELLING POPPIES
WERE USED TO FINANCE LOBBYING AND OTHER ACTIVITIES DIRECTED AT
INCREASING THE MILITARY CAPACITY OF THE UNITED STATES.  R. JONES, A
HISTORY OF THE AMERICAN LEGION 330-331 (1946). 

/4/  THE RECORD INDICATES THAT WHEN UNIONS HAVE PICKETED INSIDE THE
MALL, LLOYD CENTER HAS VOICED NO OBJECTIONS.  APP. 108 (TESTIMONY OF R.
HORN, MANAGER OF LLOYD CENTER).  IT IS APPARENT THAT PETITIONER HAS NO
DIFFICULTY IN ACCEPTING OUR DECISION IN LOGAN VALLEY AND IN COMPLYING
WITH IT. 

/5/  IT IS EVIDENT FROM THE COURT'S OPINION THAT THE MAJORITY FAILS
TO GRASP THE ESSENCE OF OUR DECISION IN LOGAN VALLEY.  THE COURT NOTES
THAT THERE IS A DIFFERENCE BETWEEN A FREE-STANDING STORE AND ONE
LOCATED IN A SHOPPING CENTER, AND BETWEEN SMALL STORES AND EXTREMELY
LARGE ONES, BUT SUGGESTS THAT BECAUSE THE DIFFERENCE IS "OF DEGREE--
NOT OF PRINCIPLE" IT IS UNIMPORTANT.  THIS FLIES DIRECTLY IN THE FACE
OF LOGAN VALLEY, WHERE WE SAID THAT AS PRIVATE PROPERTY EXPANDS TO THE
POINT WHERE IT BECOMES, IN REALITY, THE BUSINESS DISTRICT OF A
COMMUNITY, THE RIGHTS OF THE OWNERS TO PROSCRIBE SPEECH ON THE PART OF
THOSE INVITED TO USE THE PROPERTY DIMINISH.  WHEN THE COURT STATES THAT
THIS WAS BROAD LANGUAGE THAT WAS SOMEHOW UNNECESSARY TO OUR DECISION,
IT BETRAYS ITS MISUNDERSTANDING OF THE HOLDING. 

AS MR. JUSTICE BLACK AND MR. JUSTICE WHITE BOTH POINTED OUT IN
DISSENT IN LOGAN VALLEY, THERE WAS REALLY ONLY ONE ISSUE BEFORE THE
COURT-- I.E., WHETHER THE LOGAN VALLEY PLAZA WAS PREVENTED BY THE
FOURTEENTH AMENDMENT FROM INHIBITING SPEECH EVEN THOUGH IT WAS PRIVATE
PROPERTY.  THE CRITICAL ISSUE WAS WHETHER THE PRIVATE PROPERTY HAD
SUFFICIENT "PUBLIC" QUALITIES TO WARRANT A HOLDING THAT THE FOURTEENTH
AMENDMENT REACHED IT.  WE ANSWERED THIS QUESTION IN THE AFFIRMATIVE,
AND THE ANSWER WAS THE PIVOTAL FACTOR IN OUR DECISION.  EVERY MEMBER OF
THE COURT WAS ACUTELY AWARE THAT WE WERE DEALING WITH DEGREES, NOT
ABSOLUTES.  BUT WE FOUND THAT DEGREES OF DIFFERENCE CAN BE OF
CONSTITUTIONAL DIMENSION.  WHILE ANY DIFFERENCES BETWEEN THE INSTANT
CASE AND LOGAN VALLEY ARE IMMATERIAL IN MY VIEW, SUCH DIFFERENCES AS
THERE ARE MAKE THIS A CLEARER CASE OF ILLEGAL STATE ACTION. 

/6/  SINCE PETITIONER'S SECURITY GUARDS HAVE FULL POLICE POWER, THEY
CAN ENFORCE STATE LAWS AGAINST LITTERING, JUST AS THEY HAVE ENFORCED
LAWS AGAINST LOITERING IN THE PAST.  APP. 45 (TESTIMONY OF R. HORN,
MANAGER OF LLOYD CENTER). 

/7/  THE COURT IMPLIES THAT IT IS WILLING TO REVERSE BOTH LOWER
COURTS AND HOLD THAT THEIR FINDINGS THAT ALTERNATIVE FORUMS FOR
LEAFLETTING IN LLOYD CENTER WERE EITHER NOT AS EFFECTIVE AS THE MALL OR
DANGEROUS ARE CLEARLY ERRONEOUS.  I TOO HAVE READ THE RECORD IN THIS
CASE AND I FIND NO WARRANT FOR SUCH A HOLDING.  THE RECORD PLAINLY
SHOWS THAT IT WAS IMPOSSIBLE TO REACH MANY OF THE SHOPPERS IN THE
CENTER WITHOUT USING THE MALL UNLESS RESPONDENTS WERE WILLING TO
APPROACH CARS AS THEY WERE LEAVING THE CENTER.  THE DISTRICT COURT AND
THE COURT OF APPEALS TOOK THE VIEW THAT REQUIRING RESPONDENTS TO RUN
FROM THE SIDEWALK, TO KNOCK ON CAR WINDOWS, TO ASK THAT THE WINDOWS BE
ROLLED DOWN SO THAT A HANDBILL COULD BE DISTRIBUTED, TO OFFER THE
HANDBILL, RUN BACK TO THE SIDEWALK, AND TO REPEAT THIS GESTURE FOR
EVERY AUTOMOBILE LEAVING LLOYD CENTER INVOLVED HAZARDS NOT ONLY TO
RESPONDENTS BUT ALSO TO OTHER PEDESTRIANS AND AUTOMOBILE PASSENGERS. 
HAVING NEVER SEEN LLOYD CENTER, EXCEPT IN PHOTOGRAPHS CONTAINED IN THE
RECORD, AND HAVING ABSOLUTELY NO IDEA OF THE AMOUNT OF TRAFFIC ENTERING
OR LEAVING THE CENTER, THE COURT CAVALIERLY OVERTURNS THE CAREFUL
FINDINGS OF FACTS BELOW.  THIS, IN MY OPINION, EXCEEDS EVEN THE MOST
EXPANSIVE VIEW OF THE PROPER APPELLATE FUNCTION OF THIS COURT. 

GEORGE BLACK, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE ROBERT J. MILLER, JOHN H. PICKERING, AND TIMOTHY B. DYK. 

CARL R. NEIL ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF AND SANFORD JAY ROSEN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JERRY
KRONENBERG, GERARD C. SMETANA, AND ALAN RAYWID FOR THE AMERICAN RETAIL
FEDERATION, AND BY LAWRENCE M. COHEN AND ALLEN B. GRESHAM FOR THE
HOMART DEVELOPMENT CO. 

ROGER JON DIAMOND FILED A BRIEF FOR PEOPLE'S LOBBY, INC., AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :




PENNSYLVANIA V. NEW YORK, 407 U.S. 206 


       PENNSYLVANIA V. NEW YORK ET AL.

        ON BILL OF COMPLAINT

        NO. 40, ORIG.  ARGUED MARCH 29, 1972-- DECIDED JUNE 19,

           1972 


PENNSYLVANIA BROUGHT THIS ORIGINAL ACTION AGAINST NEW YORK TO
DETERMINE THE AUTHORITY OF STATES TO ESCHEAT, OR TAKE CUSTODY OF,
UNCLAIMED FUNDS PAID TO WESTERN UNION TELEGRAPH CO. FOR PURCHASE OF
MONEY ORDERS.  THE SPECIAL MASTER, FOLLOWING TEXAS V. NEW JERSEY, 379
U.S. 674, RECOMMENDED THAT ANY SUM HELD BY WESTERN UNION UNCLAIMED FOR
THE TIME PERIOD PRESCRIBED BY STATE STATUTE MAY BE ESCHEATED OR TAKEN
INTO CUSTODY BY THE STATE IN WHICH THE COMPANY'S RECORDS PLACED THE
CREDITOR'S ADDRESS, WHETHER THE CREDITOR BE THE PAYEE OF AN UNPAID
DRAFT, THE SENDER OF A MONEY ORDER ENTITLED TO A REFUND, OR AN
INDIVIDUAL WHOSE CLAIM HAS BEEN ERRONEOUSLY UNDERPAID; AND WHERE THE
RECORDS SHOW NO ADDRESS, OR WHERE THE STATE IN WHICH THE CREDITOR'S
ADDRESS FALLS HAS NO APPLICABLE ESCHEAT LAW, THE RIGHT TO ESCHEAT OR
TAKE CUSTODY SHALL BE IN THE DEBTOR'S DOMICILIARY STATE, HERE NEW
YORK.  THE RECOMMENDED DECREE IS ADOPTED AND ENTERED, AND THE CAUSE IS
REMANDED TO THE SPECIAL MASTER FOR A PROPOSED SUPPLEMENTAL DECREE WITH
RESPECT TO THE DISTRIBUTION OF THE COSTS TO THE STATES OF THE INQUIRY
AS TO AVAILABLE ADDRESSES.  PP. 208-216. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, STEWART, WHITE, AND MARSHALL, JJ., JOINED.  POWELL,
J., FILED A DISSENTING OPINION, IN WHICH BLACKMUN AND REHNQUIST, JJ.,
JOINED, POST, P. 216. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PENNSYLVANIA AND OTHER STATES EXCEPT TO, AND NEW YORK SUPPORTS, /1/
THE REPORT OF THE SPECIAL MASTER FILED IN THIS ORIGINAL ACTION BROUGHT
BY PENNSYLVANIA AGAINST NEW YORK FOR A DETERMINATION RESPECTING THE
AUTHORITY OF THE SEVERAL STATES TO ESCHEAT, OR TAKE CUSTODY OF,
UNCLAIMED FUNDS PAID TO THE WESTERN UNION TELEGRAPH COMPANY FOR THE
PURCHASE OF MONEY ORDERS.  /2/  WE OVERRULE THE EXCEPTIONS AND ENTER
THE DECREE RECOMMENDED BY THE SPECIAL MASTER, SEE POST, P. 223.  /3/ 

THE NATURE OF WESTERN UNION'S MONEY ORDER BUSINESS, AND THE SOURCE
OF THE FUNDS HERE IN DISPUTE, WERE DESCRIBED BY THE COURT IN WESTERN
UNION TELEGRAPH CO. V. PENNSYLVANIA, 368 U.S. 71 (1961): 

     "WESTERN UNION IS A CORPORATION CHARTERED UNDER NEW YORK LAW

WITH ITS PRINCIPAL PLACE OF BUSINESS IN THAT STATE.  IT ALSO DOES

  BUSINESS AND HAS OFFICES IN ALL THE OTHER STATES EXCEPT ALASKA

  AND HAWAII, (AS WELL AS) IN THE DISTRICT OF COLUMBIA, AND IN

  FOREIGN COUNTRIES, AND WAS FROM 1916 TO 1934 SUBJECT TO

  REGULATION BY THE I.C.C. AND SINCE THEN BY THE F.C.C.  IN

  ADDITION TO SENDING TELEGRAPHIC MESSAGES THROUGHOUT ITS

  WORLD-WIDE SYSTEM, IT CARRIES ON A TELEGRAPHIC MONEY ORDER

  BUSINESS WHICH COMMONLY WORKS LIKE THIS.  A SENDER GOES TO A

  WESTERN UNION OFFICE, FILLS OUT AN APPLICATION AND GIVES IT TO

  THE COMPANY CLERK WHO WAITS ON HIM TOGETHER WITH THE MONEY TO BE

  SENT AND THE CHARGES FOR SENDING IT.  A RECEIPT IS GIVEN THE

  SENDER AND A TELEGRAPH MESSAGE IS TRANSMITTED TO THE COMPANY'S

  OFFICE NEAREST TO THE PAYEE DIRECTING THAT OFFICE TO PAY THE

MONEY ORDER TO THE PAYEE.  THE PAYEE IS THEN NOTIFIED AND UPON

  PROPERLY IDENTIFYING HIMSELF IS GIVEN A NEGOTIABLE DRAFT, WHICH

  HE CAN EITHER ENDORSE AND CASH AT ONCE OR KEEP FOR USE IN THE

  FUTURE.  IF THE PAYEE CANNOT BE LOCATED FOR DELIVERY OF THE

  NOTICE, OR FAILS TO CALL FOR THE DRAFT WITHIN 72 HOURS, THE

  OFFICE OF DESTINATION NOTIFIES THE SENDING OFFICE.  THIS OFFICE

  THEN NOTIFIES THE ORIGINAL SENDER OF THE FAILURE TO DELIVER AND

  MAKES A REFUND, AS IT MAKES PAYMENTS TO PAYEES, BY WAY OF A

  NEGOTIABLE DRAFT WHICH MAY BE EITHER CASHED IMMEDIATELY OR KEPT

  FOR USE IN THE FUTURE. 

     "IN THE THOUSANDS OF MONEY ORDER TRANSACTIONS CARRIED ON BY
THE

  COMPANY, IT SOMETIMES HAPPENS THAT IT CAN NEITHER MAKE PAYMENT TO

  THE PAYEE NOR MAKE A REFUND TO THE SENDER.  SIMILARLY PAYEES AND

  SENDERS WHO ACCEPT DRAFTS AS PAYMENT OR REFUND SOMETIMES FAIL TO

CASH THEM.  FOR THIS REASON LARGE SUMS OF MONEY DUE FROM WESTERN

  UNION FOR UNDELIVERED MONEY ORDERS AND UNPAID DRAFTS ACCUMULATE

  OVER THE YEARS IN THE COMPANY'S OFFICES AND BANK ACCOUNTS

  THROUGHOUT THE COUNTRY."  ID., AT 72-73. 

IN 1953 PENNSYLVANIA BEGAN STATE PROCEEDINGS UNDER ITS ESCHEAT
STATUTE /4/  TO TAKE CUSTODY OF THOSE UNCLAIMED FUNDS, HELD BY WESTERN
UNION, THAT AROSE FROM MONEY ORDER PURCHASES IN THE COMPANY'S
PENNSYLVANIA OFFICES.  THE SUPREME COURT OF PENNSYLVANIA AFFIRMED A
JUDGMENT FOR THE STATE OF ABOUT $40,000, COMMONWEALTH V. WESTERN UNION,
400 PA. 337, 162 A.2D 617 (1960), BUT THIS COURT REVERSED, WESTERN
UNION TELEGRAPH CO. V. PENNSYLVANIA, SUPRA, HOLDING THAT THE STATE
COURT JUDGMENT DENIED WESTERN UNION DUE PROCESS OF LAW BECAUSE IT COULD
NOT PROTECT THE COMPANY AGAINST RIVAL CLAIMS OF OTHER STATES.  WE NOTED
THAT CONTROVERSIES AMONG DIFFERENT STATES OVER THEIR RIGHT TO ESCHEAT
INTANGIBLES COULD BE SETTLED ONLY IN A FORUM "WHERE ALL THE STATES THAT
WANT TO DO SO CAN PRESENT THEIR CLAIMS FOR CONSIDERATION AND FINAL,
AUTHORITATIVE DETERMINATION.  OUR COURT HAS JURISDICTION TO DO THAT." 
ID., AT 79. 

THEREAFTER, IN TEXAS V. NEW JERSEY, 379 U.S. 674 (1965), THE COURT
WAS ASKED TO DECIDE WHICH OF SEVERAL STATES WAS ENTITLED TO ESCHEAT
INTANGIBLE PROPERTY CONSISTING OF DEBTS OWED BY THE SUN OIL CO. AND
LEFT UNCLAIMED BY CREDITORS.  FOUR DIFFERENT RULES WERE PROPOSED. 
TEXAS ARGUED THAT THE FUNDS SHOULD GO TO THE STATE HAVING THE MOST
SIGNIFICANT "CONTACTS" WITH THE DEBT, AS MEASURED BY A NUMBER OF
FACTORS; NEW JERSEY, THAT THEY SHOULD GO TO THE STATE OF THE DEBTOR
COMPANY'S INCORPORATION; PENNSYLVANIA, TO THE STATE WHERE THE COMPANY
HAD ITS PRINCIPAL PLACE OF BUSINESS; AND FLORIDA, TO THE STATE OF THE
CREDITOR'S LAST KNOWN ADDRESS AS SHOWN BY THE DEBTOR'S BOOKS AND
RECORDS.  W; REJECTED TEXAS' AND PENNSYLVANIA'S PROPOSALS AS BEING TOO
UNCERTAIN AND DIFFICULT TO ADMINISTER, AND REJECTED NEW JERSEY'S
BECAUSE "IT WOULD TOO GREATLY EXALT A MINOR FACTOR TO PERMIT ESCHEAT OF
OBLIGATIONS INCURRED ALL OVER THE COUNTRY BY THE STATE IN WHICH THE
DEBTOR HAPPENED TO INCORPORATE ITSELF."  ID., AT 680.  FLORIDA'S
PROPOSAL, ON THE OTHER HAND, WAS REGARDED NOT ONLY AS A "SIMPLE AND
EASY" STANDARD TO FOLLOW, BUT ALSO AS ONE THAT TENDED "TO DISTRIBUTE
ESCHEATS AMONG THE STATES IN THE PROPORTION OF THE COMMERCIAL
ACTIVITIES OF THEIR RESIDENTS."  ID., AT 681.  WE THEREFORE HELD THAT
THE STATE OF THE CREDITOR'S LAST KNOWN ADDRESS IS ENTITLED TO ESCHEAT
THE PROPERTY OWED HIM, ADDING THAT IF HIS ADDRESS DOES NOT APPEAR ON
THE DEBTOR'S BOOKS OR IS IN A STATE THAT DOES NOT PROVIDE FOR ESCHEAT
OF INTANGIBLES, THEN THE STATE OF THE DEBTOR'S INCORPORATION MAY TAKE
CUSTODY OF THE FUNDS "UNTIL SOME OTHER STATE COMES FORWARD WITH PROOF
THAT IT HAS A SUPERIOR RIGHT TO ESCHEAT."  ID., AT 682.  THE OPINION
CONCLUDED: 

     "WE REALIZE THAT THIS CASE COULD HAVE BEEN RESOLVED OTHERWISE,

FOR THE ISSUE HERE IS NOT CONTROLLED BY STATUTORY OR

CONSTITUTIONAL PROVISIONS OR BY PAST DECISIONS, NOR IS IT

ENTIRELY ONE OF LOGIC.  IT IS FUNDAMENTALLY A QUESTION OF EASE OF

  ADMINISTRATION AND OF EQUITY.  WE BELIEVE THAT THE RULE WE ADOPT

  IS THE FAIREST, IS EASY TO APPLY, AND IN THE LONG RUN WILL BE THE

  MOST GENERALLY ACCEPTABLE TO ALL THE STATES."  ID., AT 683. 

ON MARCH 13, 1970, PENNSYLVANIA FILED THIS ORIGINAL ACTION TO RENEW
ITS EFFORTS TO ESCHEAT PART OF WESTERN UNION'S UNCLAIMED MONEY ORDER
PROCEEDS.  THE COMPLAINT ALLEGED THAT WESTERN UNION HAD ACCUMULATED
MORE THAN $1,500,000 IN UNCLAIMED FUNDS "ON ACCOUNT OF MONEY ORDERS
PURCHASED FROM THE COMPANY ON OR BEFORE DECEMBER 31, 1962," AND THAT
ABOUT $100,000 OF THAT AMOUNT, "HELD BY WESTERN UNION ON ACCOUNT OF
MONEY ORDERS PURCHASED FROM IT IN PENNSYLVANIA," WAS SUBJECT TO ESCHEAT
BY THAT STATE.  PENNSYLVANIA ASKED FOR A JUDGMENT RESOLVING THE
CONFLICTING CLAIMS OF IT AND THE DEFENDANT STATES, AND FOR A TEMPORARY
INJUNCTION AGAINST PAYMENT OF THE FUNDS BY WESTERN UNION OR A TAKING OF
THEM BY THE DEFENDANT STATES, PENDING DISPOSITION OF THE CASE.  /5/ 

IN THEIR ARGUMENTS BEFORE THE SPECIAL MASTER, THE PARTIES SUGGESTED
THREE DIFFERENT FORMULAS TO RESOLVE THEIR CONFLICTING CLAIMS. 
PENNSYLVANIA CONTENDED THAT WESTERN UNION'S MONEY ORDER RECORDS DO NOT
IDENTIFY ANYONE AS A "CREDITOR" OF THE COMPANY AND IN MANY INSTANCES DO
NOT LIST AN ADDRESS FOR EITHER THE SENDER OR PAYEE; THEREFORE, STRICT
APPLICATION OF THE TEXAS V. NEW JERSEY RULE TO THIS TYPE OF INTANGIBLE
WOULD RESULT IN THE ESCHEAT OF ALMOST ALL THE FUNDS TO THE STATE OF
INCORPORATION, HERE NEW YORK.  TO AVOID THIS RESULT, PENNSYLVANIA
PROPOSED THAT THE STATE WHERE THE MONEY ORDER WAS PURCHASED BE
PERMITTED TO TAKE THE FUNDS.  IT CLAIMED THAT THE STATE WHERE THE MONEY
ORDERS ARE BOUGHT SHOULD BE PRESUMED TO BE THE STATE OF THE SENDER'S
RESIDENCE.  CONNECTICUT, CALIFORNIA, AND INDIANA SUPPORTED THIS
PROPOSAL, AS DID NEW JERSEY AS AMICUS CURIAE. 

FLORIDA AND ARIZONA ALSO SUPPORTED PENNSYLVANIA, BUT ARGUED THAT
WHERE THE PAYEE HAD RECEIVED BUT NOT CASHED THE MONEY ORDER, HIS
ADDRESS, IF KNOWN, SHOULD DETERMINE ESCHEAT, REGARDLESS OF THE SENDER'S
ADDRESS. 

NEW YORK ARGUED THAT TEXAS V. NEW JERSEY SHOULD BE STRICTLY APPLIED,
BUT THAT IT WAS NOT RETROACTIVE.  THUS, AS TO MONEY ORDERS PURCHASED
BETWEEN 1930 AND 1958 (SEVEN YEARS BEFORE THE TEXAS DECISION) /6/  NEW
YORK ASSERTED ITS RIGHT AS THE STATE OF INCORPORATION TO ALL UNCLAIMED
FUNDS, REGARDLESS OF THE CREDITOR'S ADDRESS.  /7/  AS FOR MONEY ORDERS
DRAWN AFTER 1958, NEW YORK WOULD APPLY THE TEXAS RULE, AND TAKE THE
FUNDS IN ALL CASES WHERE THE CREDITOR'S ADDRESS DID NOT APPEAR OR WAS
LOCATED IN A STATE NOT PROVIDING FOR ESCHEAT. 

THE SPECIAL MASTER HAS SUBMITTED A REPORT RECOMMENDING THAT THE
TEXAS RULE "BE APPLIED TO ALL THE ITEMS INVOLVED IN THIS CASE
REGARDLESS OF THE DATE OF THE TRANSACTIONS OUT OF WHICH THEY AROSE." 
REPORT 21.  THE REPORT EXPRESSES SOME DOUBT ABOUT THE CONSTITUTIONALITY
OF THE SUGGESTED ALTERNATIVES, STATING THAT BOTH THE PLACE-OF-PURCHASE
AND PLACE-OF-DESTINATION RULES MIGHT PERMIT INTANGIBLE PROPERTY RIGHTS
TO BE "CUT OFF OR ADVERSELY AFFECTED BY STATE ACTION IN AN IN REM
PROCEEDING IN A FORUM HAVING NO CONTINUING RELATIONSHIP TO ANY OF THE
PARTIES TO THE PROCEEDINGS."  ID., AT 19.  THESE DOUBTS, HOWEVER, WERE
NOT THE SOLE BASIS FOR THE SPECIAL MASTER'S RECOMMENDATION.  HE FOUND
THAT "(AS IN THE CASE OF THE OBLIGATIONS IN (TEXAS V. NEW JERSEY), (THE
TEXAS) RULE PRESENTS AN EASILY ADMINISTERED STANDARD PREVENTING
MULTIPLE CLAIMS AND GIVING ALL PARTIES A FIXED RULE ON WHICH THEY CAN
RELY."  ID., AT 20.  HE CONCLUDED THAT: 

"ANY SUM NOW HELD BY WESTERN UNION UNCLAIMED FOR THE PERIOD OF TIME
PRESCRIBED BY THE APPLICABLE STATE STATUTES MAY BE ESCHEATED OR TAKEN
INTO CUSTODY BY THE STATE IN WHICH THE RECORDS OF WESTERN UNION PLACED
THE ADDRESS OF THE CREDITOR, WHETHER THAT CREDITOR BE THE PAYEE OF AN
UNPAID DRAFT, THE SENDER OF A MONEY ORDER ENTITLED TO A REFUND, OR AN
INDIVIDUAL WHOSE CLAIM HAS BEEN UNDERPAID THROUGH ERROR.  . . . (IF NO
ADDRESS IS CONTAINED IN THE RECORDS OF WESTERN UNION, OR IF THE STATE
IN WHICH THE ADDRESS OF THE CREDITOR FALLS HAS NO APPLICABLE ESCHEAT
LAW, THEN THE RIGHT TO ESCHEAT OR TAKE CUSTODY SHALL BE IN THE
DOMICILIARY STATE OF THE DEBTOR, IN THIS CASE, NEW YORK."  ID., AT 20
21.  THE REPORT ALSO STATES THAT NEW YORK WOULD BEAR THE BURDEN OF
ESTABLISHING "AS TO ALL ESCHEATABLE ITEMS THE ABSENCE FROM WESTERN
UNION'S RECORDS OF AN ADDRESS FOR THE CREDITOR."  ID., AT 16. 

PENNSYLVANIA'S EXCEPTIONS ARGUE THAT WHERE A TRANSACTION IS OF A
TYPE THAT "THE OBLIGOR DOES NOT MAKE ENTRIES UPON ITS BOOKS AND RECORDS
SHOWING THE ADDRESS OF THE OBLIGEE," ONLY "THE STATE OF ORIGIN OF THE
TRANSACTION" SHOULD BE PERMITTED TO ESCHEAT.  FLORIDA AND ARIZONA HAVE
ABANDONED THEIR STATE-OF-DESTINATION TEST, AND TOGETHER WITH THE OTHER
PARTICIPATING STATES SAVE NEW YORK, HAVE JOINED IN PENNSYLVANIA'S
EXCEPTIONS.  TR. OF ORAL ARG. 20, 42. 

PENNSYLVANIA'S PROPOSAL HAS SOME SURFACE APPEAL.  BECAUSE WESTERN
UNION DOES NOT REGULARLY RECORD THE ADDRESSES OF ITS MONEY ORDER
CREDITORS, IT IS LIKELY THAT THE CORPORATE DOMICILE WILL RECEIVE A MUCH
LARGER SHARE OF THE UNCLAIMED FUNDS HERE THAN IN THE CASE OF OTHER
OBLIGATIONS, LIKE BILLS FOR SERVICES RENDERED, WHERE SUCH RECORDS ARE
KEPT AS A MATTER OF BUSINESS PRACTICE.  IN A SENSE, THERE IS SOME
INCONSISTENCY BETWEEN THAT RESULT AND OUR REFUSAL IN TEXAS TO MAKE THE
DEBTOR'S DOMICILE THE PRIMARY RECIPIENT OF UNCLAIMED INTANGIBLES. 
FURTHERMORE, THE PARTIES SAY, THE TEXAS RULE IS NOTHING MORE THAN A
LEGAL PRESUMPTION THAT THE CREDITOR'S RESIDENCE IS IN THE STATE OF HIS
LAST KNOWN ADDRESS.  A PRESUMPTION BASED ON THE PLACE OF PURCHASE IS
EQUALLY VALID, THEY ARGUE, AND SHOULD BE APPLIED IN ORDER TO PREVENT
NEW YORK FROM GAINING THIS WINDFALL. 

ASSUMING, WITHOUT RESOLVING THE DOUBTS EXPRESSED BY THE SPECIAL
MASTER, THAT THE PENNSYLVANIA RULE PROVIDES A CONSTITUTIONAL BASIS FOR
ESCHEAT, WE DO NOT REGARD THE LIKELIHOOD OF A "WINDFALL" FOR NEW YORK
AS A SUFFICIENT REASON FOR CARVING OUT THIS EXCEPTION TO THE TEXAS
RULE.  TEXAS V. NEW JERSEY WAS NOT GROUNDED ON THE ASSUMPTION THAT ALL
CREDITORS' ADDRESSES ARE KNOWN.  INDEED, AS TO FOUR OF THE EIGHT
CLASSES OF DEBT INVOLVED IN THAT CASE, THE COURT EXPRESSLY FOUND THAT
SOME OF THE CREDITORS "HAD NO LAST ADDRESS INDICATED."  379 U.S.,AT 675
676, N. 4.  THUS, THE ONLY ARGUABLE BASIS FOR DISTINGUISHING MONEY
ORDERS IS THAT THEY INVOLVE A HIGHER PERCENTAGE OF UNKNOWN ADDRESSES. 
BUT WE ARE NOT TOLD WHAT PERCENTAGE IS HIGH ENOUGH TO JUSTIFY AN
EXCEPTION TO THE TEXAS RULE, NOR IS IT ENTIRELY CLEAR THAT MONEY ORDERS
CONSTITUTE THE ONLY FORM OF TRANSACTION WHERE THE PERCENTAGE OF UNKNOWN
ADDRESSES MAY RUN HIGH.  IN OTHER WORDS, TO VARY THE APPLICATION OF THE
TEXAS RULE ACCORDING TO THE ADEQUACY OF THE DEBTOR'S RECORDS WOULD
REQUIRE THIS COURT TO DO PRECISELY WHAT WE SAID SHOULD BE AVOIDED--
THAT IS, "TO DECIDE EACH ESCHEAT CASE ON THE BASIS OF ITS PARTICULAR
FACTS OR TO DEVISE NEW RULES OF LAW TO APPLY TO EVER-DEVELOPING NEW
CATEGORIES OF FACTS."  TEXAS V. NEW JERSEY, 379 U.S.,AT 679. 

FURTHERMORE, A SUBSTANTIAL NUMBER OF CREDITORS' ADDRESSES MAY IN
FACT BE AVAILABLE IN THIS CASE.  ALTHOUGH WESTERN UNION HAS NOT KEPT
LEDGER RECORDS OF ADDRESSES, THE PARTIES STIPULATED, AND THE SPECIAL
MASTER FOUND, THAT MONEY ORDER APPLICATIONS HAVE BEEN RETAINED IN THE
COMPANY'S RECORDS "AS FAR BACK AS 1930 IN SOME INSTANCES AND ARE
GENERALLY AVAILABLE SINCE 1941."  REPORT 9.  TO THE EXTENT THAT
CREDITOR ADDRESSES ARE AVAILABLE FROM THOSE FORMS, THE "WINDFALL" TO
NEW YORK WILL, OF COURSE, BE DIMINISHED.     WE THINK THAT AS A MATTER
OF FAIRNESS THE CLAIMANT STATES, AND NOT WESTERN UNION, SHOULD BEAR THE
COST OF FINDING AND RECORDING THE AVAILABLE ADDRESSES, AND WE SHALL
REMAND TO THE SPECIAL MASTER FOR A HEARING AND RECOMMENDATION AS TO THE
APPROPRIATE FORMULA FOR DISTRIBUTING THOSE COSTS.  AS FOR FUTURE MONEY
ORDER TRANSACTIONS, NOTHING WE SAY HERE PROHIBITS THE STATES FROM
REQUIRING WESTERN UNION TO KEEP ADEQUATE ADDRESS RECORDS.  THE DECREE
RECOMMENDED BY THE SPECIAL MASTER IS ADOPTED AND ENTERED, /8/  AND THE
CAUSE IS REMANDED TO THE SPECIAL MASTER FOR FURTHER PROCEEDINGS AND THE
FILING OF A PROPOSED SUPPLEMENTAL DECREE WITH RESPECT TO THE
DISTRIBUTION OF COSTS OF THE INQUIRY AS TO AVAILABLE ADDRESSES. 

              IT IS SO ORDERED. 

(FOR DECREE ADOPTED AND ENTERED BY THE COURT, SEE POST, P. 223.) 

/1/  OF THE REMAINING STATES PARTY TO THIS CASE, FLORIDA HAS FILED
EXCEPTIONS AS DEFENDANT, AND CONNECTICUT AND INDIANA AS INTERVENING
PLAINTIFFS.  NEW JERSEY HAS FILED A BRIEF AMICUS CURIAE IN SUPPORT OF
PENNSYLVANIA'S POSITION. 

/2/  WE GRANTED LEAVE TO FILE THE BILL OF COMPLAINT, 398 U.S. 956,
PERMITTED THE STATE OF CONNECTICUT TO INTERVENE AS A PARTY PLAINTIFF,
AND APPOINTED MR. JOHN F. DAVIS AS A SPECIAL MASTER TO TAKE EVIDENCE
AND MAKE APPROPRIATE REPORTS.  400 U.S. 811.  THEREAFTER, CALIFORNIA
AND INDIANA WERE PERMITTED TO INTERVENE AS PLAINTIFFS, AND ARIZONA AS A
DEFENDANT.  400 U.S. 924, 1019; 401 U.S. 931. 

/3/  THE EXCEPTION OF INDIANA AS TO A TYPOGRAPHICAL ERROR IN THE
RECOMMENDED DECREE IS SUSTAINED.  THE PHRASE "ESCHEAT OF CUSTODIAL
TAKING" IN PARAGRAPH 2, LINES 4-5 OF THE DECREE SHOULD READ "ESCHEAT OR
CUSTODIAL TAKING." 

/4/  THE PENNSYLVANIA STATUTE, ACT OF JULY 29, 1953, P.L. 986, SEC.
1, (PA. STAT. ANN., TIT. 27, SEC. 333) PROVIDES IN PART: 

"(B) WHENSOEVER THE . . . PERSON ENTITLED TO ANY . . . PERSONAL
PROPERTY WITHIN OR SUBJECT TO THE CONTROL OF THE COMMONWEALTH OR THE
WHEREABOUTS OF SUCH . . . PERSON ENTITLED HAS BEEN OR SHALL BE AND
REMAIN UNKNOWN FOR THE PERIOD OF SEVEN SUCCESSIVE YEARS, SUCH . . .
PERSONAL PROPERTY . . . SHALL ESCHEAT TO THE COMMONWEALTH.  . . . 

"(C) WHENSOEVER ANY . . . PERSONAL PROPERTY WITHIN OR SUBJECT TO THE
CONTROL OF THIS COMMONWEALTH HAS BEEN OR SHALL BE AND REMAIN UNCLAIMED
FOR THE PERIOD OF SEVEN SUCCESSIVE YEARS, SUCH . . . PERSONAL PROPERTY
. . . SHALL ESCHEAT TO THE COMMONWEALTH.  . . . " 

/5/  THE COURT HAS TAKEN NO ACTION ON THE PLEA FOR TEMPORARY
INJUNCTION, AND ACCEPTS THE RECOMMENDATION OF THE SPECIAL MASTER THAT
IT NOW "BE DENIED AS UNNECESSARY."  REPORT 3 N. 2. 

/6/  NEW YORK MAKES NO CLAIM WITH RESPECT TO MONEY ORDERS ISSUED
BEFORE 1930. 

/7/  SECTION 1309 OF NEW YORK'S ABANDONED PROPERTY LAW PROVIDES FOR
THE CUSTODIAL TAKING, NOT ESCHEAT, OF UNCASHED MONEY ORDERS, SO THAT
"THE RIGHTS OF A HOLDER OF A . . . MONEY ORDER TO PAYMENT . . . SHALL
BE IN NO WISE AFFECTED, IMPAIRED OR ENLARGED BY REASON OF THE
PROVISIONS OF THIS SECTION OR BY REASON OF THE PAYMENT TO THE STATE
COMPTROLLER OF ABANDONED PROPERTY HEREUNDER." 

/8/  INSOFAR AS THE INVOCATION OF ANY PROVISION OF THE REVISED
UNIFORM DISPOSITION OF UNCLAIMED PROPERTY ACT WOULD BE INCONSISTENT
WITH THIS DECREE, THE DECREE PREVAILS.  SEE BOARD OF EDUCATION V.
SWANN, 402 U.S. 43, 45-46 (1971). 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE BLACKMUN AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

THE MAJORITY OPINION TODAY PURPORTS TO APPLY THE RULE LAID DOWN IN
TEXAS V. NEW JERSEY, 379 U.S. 674 (1965), TO A FACT SITUATION NOT
CONTEMPLATED WHEN THAT CASE WAS DECIDED.  IN APPLYING THAT RULE TO
THESE NEW FACTS, IT SEEMS TO ME THAT THE COURT EXALTS THE RULE BUT
DEROGATES THE REASONS SUPPORTING IT.

        I 

TEXAS V. NEW JERSEY, A CASE DECIDED WITHIN THE COURT'S ORIGINAL
JURISDICTION, IS A UNIQUE PRECEDENT.  DISPOSITION OF THAT CASE
NECESSARILY REQUIRED A DEPARTURE FROM THE COURT'S USUAL MODE OF
DECISIONMAKING.  OUR ROLE IN THIS COUNTRY'S SCHEME OF GOVERNMENT IS
ORDINARILY A RESTRICTED ONE, LIMITED IN LARGE MEASURE TO THE RESOLUTION
OF CONFLICTS CALLING FOR THE INTERPRETATION AND APPLICATION EITHER OF
STATUTORY ACTS OR OF PROVISIONS OF THE FEDERAL CONSTITUTION.  IN THE
PERFORMANCE OF THIS FUNCTION, AN INDIVIDUAL JUSTICE'S VIEWS AS TO WHAT
HE MIGHT CONSIDER "FAIR" OR "EQUITABLE" OR "EXPEDITIOUS" ARE LARGELY
IMMATERIAL.  INFREQUENTLY, HOWEVER, WE ARE CALLED ON TO RESOLVE
DISPUTES ARISING UNDER THE ORIGINAL JURISDICTION OF THE COURT (ART.
III, SEC. 2) IN WHICH OUR JUDGMENT IS UNAIDED BY STATUTORY OR
CONSTITUTIONAL DIRECTIVES. 

IN APPROACHING SUCH CASES, WE MAY FIND, AS DID THE COURT IN TEXAS V.
NEW JERSEY, THAT FAIRNESS AND EXPEDITIOUSNESS PROVIDE THE GUIDEPOSTS
FOR OUR DECISION: 

"(THE ISSUE HERE IS NOT CONTROLLED BY STATUTORY OR CONSTITUTIONAL
PROVISIONS OR BY PAST DECISIONS, NOR IS IT ENTIRELY ONE OF LOGIC.  IT
IS FUNDAMENTALLY A QUESTION OF EASE OF ADMINISTRATION AND OF EQUITY." 
ID., AT 683.  THE CASE BEFORE US TODAY REQUIRES THE APPLICATION OF
SIMILAR PRINCIPLES, AND I AGREE THAT MR. JUSTICE BLACK'S OPINION IN
TEXAS V. NEW JERSEY POINTS THE WAY TO THE MOST DESIRABLE RESULT.  IN MY
VIEW, HOWEVER, THE MAJORITY'S APPLICATION OF THAT PRECEDENT TO THE
FACTS OF THIS CASE OFFENDS BOTH THE "FAIRNESS" AND "EASE OF
ADMINISTRATION"  BASES OF THAT OPINION. 

THE COURT IN TEXAS V. NEW JERSEY WAS ASKED TO DECIDE WHICH STATES
COULD TAKE TITLE TO ESCHEATABLE INTANGIBLE PERSONAL PROPERTY IN THE
FORM OF DEBTS OWED BY SUN OIL CO. TO A LARGE NUMBER OF INDIVIDUAL
CREDITORS.  AFTER REJECTING SEVERAL ALTERNATIVES OFFERED BY THE
PARTIES, THE COURT ADOPTED THE RULE PROPOSED BY THE STATE OF FLORIDA
AND APPROVED BY THE SPECIAL MASTER.  UNDER THAT RULE THE POWER TO
ESCHEAT THE DEBTS IN QUESTION, IN THE FIRST INSTANCE, WAS TO BE
ACCORDED "TO THE STATE OF THE CREDITOR'S LAST KNOWN ADDRESS AS SHOWN BY
THE DEBTOR'S BOOKS AND RECORDS."  ID., AT 680-681.  IN THE "INFREQUENT"
CASE IN WHICH NO RECORD OF LAST ADDRESS WAS AVAILABLE OR IN WHICH THE
APPROPRIATE STATE'S LAWS DID NOT PROVIDE FOR THE ESCHEAT OF ABANDONED
INTANGIBLES, THE PROPERTY WAS TO GO TO THE STATE OF THE DEBTOR'S
CORPORATE DOMICILE.  ID., AT 682. 

THIS DISPOSITION RECOMMENDED ITSELF TO THE COURT FOR SEVERAL
REASONS.  THE RULE WAS GENERALLY CONSISTENT WITH THE COMMON-LAW MAXIM
"MOBILIA SEQUUNTUR PERSONAM"  /1/  UNDER WHICH INTANGIBLE PERSONAL
PROPERTY MAY BE FOUND TO FOLLOW THE DOMICILE OF ITS OWNER-- HERE THE
CREDITOR.  ID., AT 680 N. 10.  IN LOOKING TO THE RESIDENCE OF THE
CREDITOR, THE RULE ADOPTED BY THE COURT RECOGNIZED THAT THE COMPANY'S
UNCLAIMED DEBTS WERE ASSETS OF THE INDIVIDUAL CREDITORS RATHER THAN
ASSETS OF THE DEBTOR.  ID., AT 681.  ALSO, IN DISTRIBUTING THE PROPERTY
AMONG THE CREDITORS' STATES, THE RULE HAD THE ADVANTAGE OF DIVIDING THE
PROPERTY IN A MANNER ROUGHLY PROPORTIONATE TO THE COMMERCIAL ACTIVITIES
OF EACH STATE'S RESIDENTS.  IN USING THE LAST-KNOWN ADDRESS AS THE SOLE
INDICATOR OF DOMICILE, THE RULE WOULD BE EASY TO ADMINISTER AND APPLY. 
THE COURT RECOGNIZED, OF COURSE, THAT THIS APPROACH MIGHT LEAD TO THE
ESCHEAT OF PROPERTY TO A STATE FROM WHICH THE CREDITOR HAD REMOVED
HIMSELF IN THE PERIOD SINCE THE DEBT AROSE.  YET IT CONCLUDED THAT
THESE INSTANCES WOULD "TEND TO A LARGE EXTENT TO CANCEL EACH OTHER
OUT," AND WOULD NOT DISRUPT THE BASIC FAIRNESS AND EXPEDITIOUSNESS OF
THE RESULT.  ID., AT 681. 

PARADOXICALLY, THE MECHANISTIC APPLICATION OF THE TEXAS V. NEW
JERSEY RULE TO THE PRESENT CASE LEADS ULTIMATELY TO THE DEFEAT OF EACH
OF THE BENEFICIAL JUSTIFICATIONS FOR THAT RULE.  UNLIKE THE RECORDS OF
THE NUMEROUS DEBTS OWED BY SUN OIL, WESTERN UNION'S RECORDS MAY REFLECT
THE CREDITORS' ADDRESSES FOR ONLY A RELATIVELY SMALL PERCENTAGE OF THE
TRANSACTIONS.  AS A CONSEQUENCE, THE GREATER PORTION OF THE ENTIRE
WESTERN UNION FUND WILL GO TO THE STATE OF NEW YORK-- THE STATE OF
CORPORATE DOMICILE.  EFFECTIVELY THEN, THE OBLIGATION OF THE DEBTOR
WILL BE CONVERTED INTO AN ASSET OF THE DEBTOR'S STATE OF DOMICILE TO
THE EXCLUSION OF THE CREDITORS' STATES.  THE COURT IN TEXAS V. NEW
JERSEY SPECIFICALLY REPUDIATED THIS RESULT ON THE GROUND THAT IT WAS
INCONSISTENT WITH "PRINCIPLES OF FAIRNESS."  ID., AT 680.  IT WOULD
HAVE "EXALTED) A MINOR FACTOR TO PERMIT ESCHEAT OF OBLIGATIONS INCURRED
ALL OVER THE COUNTRY BY THE STATE IN WHICH THE DEBTOR HAPPENED TO
INCORPORATE ITSELF."  IBID.  THE FACT THAT THE COURT WAS WILLING TO
PERMIT THIS RESULT IN THE FEW CASES IN WHICH NO RECORD OF ADDRESS WAS
AVAILABLE OR IN WHICH NO LAW OF ESCHEAT GOVERNED, DOES NOT DIMINISH THE
CLEAR VIEW OF THE COURT THAT THIS RESULT WOULD BE IMPERMISSIBLE AS A
BASIS FOR DISPOSING OF MORE THAN A SMALL MINORITY OF THE DEBTS.  YET
THE DECISION TODAY IGNORES THE COURT'S UNWILLINGNESS TO "EXALT" THE
LARGELY COINCIDENTAL DOMICILE OF THE CORPORATE DEBTOR.  IT ALSO
DISREGARDS THE COURT'S CLEARLY EXPRESSED INTENT THAT THE ESCHEATABLE
PROPERTY BE DISTRIBUTED IN PROPORTIONS ROUGHLY COMPARABLE TO THE VOLUME
OF TRANSACTIONS CONDUCTED IN EACH STATE. 

FURTHERMORE, THE RULE TODAY IS INCOMPATIBLE WITH THE COURT'S VIEW IN
TEXAS V. NEW JERSEY THAT AN EASILY AND INEXPENSIVELY DISCERNIBLE MODE
OF ALLOCATION BE UTILIZED.  THE MAJORITY'S RULE WILL REQUIRE THE
EXAMINATION OF EVERY AVAILABLE MONEY ORDER APPLICATION TO DETERMINE
WHETHER THE APPLICANT FILLED OUT THE ADDRESS BLANK FOR HIS OWN ADDRESS,
OR IN THE CASE OF MONEY ORDER DRAFTS RECEIVED BUT NOT CASHED, WHETHER
THE HOLDER'S ADDRESS HAD BEEN PRESERVED.  WESTERN UNION ESTIMATED IN
THE STIPULATED STATEMENT OF FACTS THAT SUCH AN ITEM-BY-ITEM EXAMINATION
COULD BE UNDERTAKEN AT A COST OF APPROXIMATELY $175,000.  REPORT OF THE
SPECIAL MASTER 16. 

IN SUM, THE INVOCATION OF THE TEXAS V. NEW JERSEY RULE IN THE MANNER
CONTEMPLATED BY THE MAJORITY WILL LEAD TO A RESULT THAT IS NEITHER
EXPEDITIOUS NOR EQUITABLE. 

      II 

THE REASONS UNDERLYING TEXAS V. NEW JERSEY COULD BEST BE EFFECTUATED
BY A RELATIVELY MINOR BUT LOGICAL DEVIATION IN THE MANNER IN WHICH THAT
RULE IS IMPLEMENTED IN THIS CASE.  RATHER THAN EMBARKING UPON A
POTENTIALLY FRUITLESS SEARCH FOR THE CREDITOR'S LAST-KNOWN ADDRESS AS A
ROUGH INDICATOR OF DOMICILE, RELIANCE SHOULD BE PLACED UPON THE STATE
WHERE THE DEBTOR-CREDITOR RELATIONSHIP WAS ESTABLISHED.  IN MOST CASES
THAT STATE IS LIKELY ALSO TO BE THE SITE OF THE CREDITOR'S DOMICILE. 
IN OTHER WORDS, IN THE CASE OF MONEY ORDERS SENT AND THEN RETURNED TO
THE INITIATING WESTERN UNION OFFICE BECAUSE THE SENDEE FAILED TO CLAIM
THE MONEY, THE STATE IN WHICH THE MONEY ORDER WAS PURCHASED MAY BE
PRESUMED TO BE THE STATE OF THE PURCHASER-CREDITOR'S DOMICILE.  AND,
WHERE THE DRAFT HAS BEEN RECEIVED BY EITHER THE INITIATING PARTY OR BY
THE RECIPIENT BUT NOT NEGOTIATED, THE STATE IN WHICH THE DRAFT WAS
ISSUED MAY BE ASSUMED TO BE THE STATE OF THAT CREDITOR'S DOMICILE. 

THIS MODIFICATION IS PREFERABLE, FIRST, BECAUSE IT PRESERVES THE
EQUITABLE FOUNDATION OF THE TEXAS V. NEW JERSEY RULE.  THE STATE OF THE
CORPORATE DEBTOR'S DOMICILE IS DENIED A "WINDFALL"; THE FUND IS DIVIDED
IN A PROPORTION APPROXIMATING THE VOLUME OF TRANSACTIONS OCCURRING IN
EACH STATE; AND THE INTEGRITY OF THE NOTION THAT THESE AMOUNTS
REPRESENT ASSETS OF THE INDIVIDUAL PURCHASERS OR RECIPIENTS OF MONEY
ORDERS IS MAINTAINED.  SECONDLY, THE RELEVANT INFORMATION WOULD BE MORE
EASILY OBTAINABLE.  THE PLACE OF PURCHASE AND THE OFFICE OF DESTINATION
ARE REFLECTED IN WESTERN UNION'S LEDGER BOOKS AND IT WOULD, THEREFORE,
BE UNNECESSARY TO EXAMINE THE INNUMERABLE APPLICATION FORMS
THEMSELVES.  SINCE THE LEDGERS ARE MORE READILY AVAILABLE, THE
ALLOCATION OF THE FUND WOULD BE EFFECTED AT LESS EXPENSE THAN WOULD BE
REQUIRED BY THE MAJORITY'S RESOLUTION. 

DESPITE THESE ADVANTAGES, THE SPECIAL MASTER REJECTED THIS
ALTERNATIVE.  HE REASONED THAT AN UNDETERMINED NUMBER OF THESE
TRANSACTIONS MUST HAVE TAKEN PLACE OUTSIDE THE CREDITORS' STATE OF
DOMICILE.  SPECIFICALLY, HE CITED THE CASES IN WHICH A NEW JERSEY OR
CONNECTICUT RESIDENT MIGHT PURCHASE A MONEY ORDER IN NEW YORK, OR CASES
IN WHICH A RESIDENT OF VIRGINIA OR MARYLAND MIGHT MAKE HIS PURCHASE IN
THE DISTRICT OF COLUMBIA.  REPORT OF THE SPECIAL MASTER 18.  WHILE SUCH
CASES CERTAINLY EXIST, THEY ARE MERELY EXCEPTIONS TO A GENERALLY
RELIABLE RULE THAT MONEY ORDER PURCHASES ARE LIKELY TO HAVE OCCURRED
WITHIN THE STATE OF THE PURCHASER'S DOMICILE.  THAT PERFECTION IS NOT
ACHIEVED IS NO REASON TO REJECT THIS ALTERNATIVE.  THE TEXAS V. NEW
JERSEY COURT RECOGNIZED THAT ABSOLUTE FAIRNESS WAS NOT OBTAINABLE AND
THAT THE MOST THAT COULD BE EXPECTED WAS A RULE PROVIDING A REASONABLE
APPROXIMATION.  ID., AT 681 N. 11.  CERTAINLY THIS OBJECTION SHOULD NOT
BE ALLOWED TO FRUSTRATE THE BETTER ALTERNATIVE IN FAVOR OF ONE THAT IS
LESS FAIR AND MORE DIFFICULT TO ADMINISTER. 

        III 

THE MAJORITY OPINION INTIMATES, AS I THINK IT MUST, THAT THE
ULTIMATE CONSEQUENCE OF ITS DECISION TODAY IS INCONSISTENT (ANTE, AT
214) WITH THE RESULT IN TEXAS V. NEW JERSEY.  WHILE THE OPINION APPEARS
TO RECOGNIZE THAT NEW YORK WILL RECAP THE VERY "WINDFALL" THAT TEXAS V.
NEW JERSEY SOUGHT TO AVOID, ITS REFUSAL TO BEND IN THE FACE OF THIS
CONSEQUENCE GOES LARGELY UNEXPLAINED.  APPARENTLY, THE BASIS FOR ITS
DECISION IS THE CONVICTION THAT THE COURT'S PRIOR PRECEDENT WAS
DESIGNED TO SETTLE THE QUESTION OF ESCHEAT OF INTANGIBLE PERSONAL
PROPERTY "ONCE AND FOR ALL."  ID., AT 678.  THE MAJORITY ADHERES TO THE
EXISTING RULE BECAUSE OF SOME APPREHENSION THAT FLEXIBILITY IN THIS
CASE WILL DEPRIVE THE COURT OF A SATISFACTORY TEST FOR THE RESOLUTION
OF FUTURE CASES.  THE OPINION ANTICIPATES THAT DEPARTURE FROM TEXAS V.
NEW JERSEY WILL LEAVE OTHERCASES TO BE DECIDED ON AN AD HOC BASIS,
DEPENDING IN EACH CASE ON THE "ADEQUACY OF THE DEBTOR'S RECORDS." 
ANTE, AT 215.  ALTHOUGH THE FACTUAL CIRCUMSTANCES OF FUTURE CASES
CANNOT BE PREDICTED, IT IS LIKELY THAT MOST OF SUCH CASES CAN BE
RESOLVED WITHIN THE PRINCIPLES OF TEXAS V. NEW JERSEY.  THE FACTUAL
RANGE IS LIMITED.  THE DEBTOR EITHER WILL OR WILL NOT MAINTAIN
CREDITORS' ADDRESSES IN THE ORDINARY COURSE OF BUSINESS.  IN SOME
CATEGORIES OF TRANSACTIONS, SUCH AS THOSE INVOLVING MONEY ORDERS AND
TRAVELER'S CHECKS, ADEQUATE ADDRESS RECORDS MAY NOT BE AVAILABLE.  IN
THE CASE OF ORDINARY CORPORATE DEBTS, HOWEVER, IT IS MORE LIKELY THAT
RECORDS WILL BE AVAILABLE.  MOREOVER, AS THE MAJORITY POINTS OUT, ANY
STATE IS FREE TO REQUIRE CORPORATIONS DOING BUSINESS IN THAT STATE TO
MAINTAIN RECORDS OF THEIR CREDITORS' ADDRESSES.  ANTE, AT 215.     IN
SHORT, THE THREAT OF FREQUENT AND COMPLICATED CASES IN THIS AREA SEEMS
REMOTE.  IT PROVIDES LITTLE JUSTIFICATION FOR THE MAJORITY'S CINDERELLA
LIKE COMPULSION TO ACCOMMODATE THIS ILL-FITTING PRECEDENTIAL
"SLIPPER."  FROM A RESULT THAT SEEMS BOTH INFLEXIBLE AND INEQUITABLE, I
DISSENT. 

/1/  SEE BLODGETT V. SILBERMAN, 277 U.S. 1, 9-10 (1928). 

HERMAN ROSENBERGER II, ASSISTANT ATTORNEY GENERAL OF PENNSYLVANIA,
ARGUED ON THE EXCEPTIONS TO THE REPORT OF THE SPECIAL MASTER FOR
PLAINTIFF.  ON THE BRIEF WERE J. SHANE CREAMER, ATTORNEY GENERAL, AND
JOSEPH H. RESNICK, ASSISTANT ATTORNEY GENERAL. 

F. MICHAEL AHERN, ASSISTANT ATTORNEY GENERAL, ARGUED ON THE
EXCEPTIONS TO THE REPORT OF THE SPECIAL MASTER FOR INTERVENOR-PLAINTIFF
THE STATE OF CONNECTICUT.  WITH HIM ON THE BRIEF WAS ROBERT K. KILLIAN,
ATTORNEY GENERAL.  THEODORE L. SENDAK, ATTORNEY GENERAL, AND ROBERT A.
ZABAN, DEPUTY ATTORNEY GENERAL, FILED A BRIEF ON EXCEPTIONS TO THE
REPORT OF THE SPECIAL MASTER FOR INTERVENOR-PLAINTIFF THE STATE OF
INDIANA. 

WINIFRED L. WENTWORTH, ASSISTANT ATTORNEY GENERAL, ARGUED ON THE
EXCEPTIONS TO THE REPORT OF THE SPECIAL MASTER FOR DEFENDANT THE STATE
OF FLORIDA.  WITH HER ON THE BRIEF WAS ROBERT L. SHEVIN, ATTORNEY
GENERAL.  JULIUS GREENFIELD, ASSISTANT ATTORNEY GENERAL, ARGUED IN
SUPPORT OF THE REPORT OF THE SPECIAL MASTER FOR DEFENDANT THE STATE OF
NEW YORK.  WITH HIM ON THE BRIEF WERE LOUIS J. LEFKOWITZ, ATTORNEY
GENERAL, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND
GUSTAVE HARROW, ASSISTANT ATTORNEY GENERAL.  LEE JOHNSON, ATTORNEY
GENERAL, JOHN W. OSBURN, SOLICITOR GENERAL, AND PHILIP J. ENGELGAU,
ASSISTANT ATTORNEY GENERAL, FILED A BRIEF ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER FOR DEFENDANT THE STATE OF OREGON. 
..END :








PENNSYLVANIA V. NEW YORK, 407 U.S. 223 


       PENNSYLVANIA V. NEW YORK ET AL.

        NO. 40, ORIG.  DECIDED JUNE 19, 1972--

        DECREE ENTERED JUNE 19, 1972 


OPINION REPORTED:  ANTE, P. 206. 

       DECREE 

IT IS NOW ORDERED, ADJUDGED, AND DECREED AS FOLLOWS: 

1.  EACH ITEM OF PROPERTY IN QUESTION IN THIS CASE AS TO WHICH A
LAST KNOWN ADDRESS OF THE PERSON ENTITLED THERETO IS SHOWN ON THE BOOKS
AND RECORDS OF THE DEFENDANT, WESTERN UNION TELEGRAPH CO., IS SUBJECT
TO ESCHEAT OR CUSTODIAL TAKING ONLY BY THE STATE OF THAT LAST KNOWN
ADDRESS, AS SHOWN ON THE BOOKS AND RECORDS OF DEFENDANT, WESTERN UNION
TELEGRAPH CO., TO THE EXTENT OF THAT STATE'S POWER UNDER ITS OWN LAWS,
TO ESCHEAT OR TAKE CUSTODIALLY. 

2.  EACH ITEM OF PROPERTY IN QUESTION IN THIS CASE AS TO WHICH THERE
IS NO ADDRESS OF THE PERSON ENTITLED THERETO SHOWN ON THE BOOKS AND
RECORDS OF DEFENDANT WESTERN UNION TELEGRAPH CO. IS SUBJECT TO ESCHEAT
OR CUSTODIAL TAKING ONLY BY NEW YORK, THE STATE IN WHICH WESTERN UNION
TELEGRAPH CO. WAS INCORPORATED, TO THE EXTENT OF NEW YORK'S POWER UNDER
ITS OWN LAWS TO ESCHEAT OR TAKE CUSTODIALLY, SUBJECT TO THE RIGHT OF
ANY OTHER STATE TO RECOVER SUCH PROPERTY FROM NEW YORK UPON PROOF THAT
THE LAST KNOWN ADDRESS OF THE CREDITOR WAS WITHIN THAT OTHER STATE'S
BORDERS. 

3.  EACH ITEM OF PROPERTY IN QUESTION IN THIS CASE AS TO WHICH THE
LAST KNOWN ADDRESS OF THE PERSON ENTITLED THERETO AS SHOWN ON THE BOOKS
AND RECORDS OF DEFENDANT WESTERN UNION TELEGRAPH CO. IS IN A STATE THE
LAWS OF WHICH DO NOT PROVIDE FOR THE ESCHEAT OF SUCH PROPERTY, IS
SUBJECT TO ESCHEAT OR CUSTODIAL TAKING ONLY BY NEW YORK, THE STATE IN
WHICH WESTERN UNION TELEGRAPH CO. WAS INCORPORATED, TO THE EXTENT OF
NEW YORK'S POWER UNDER ITS OWN LAWS TO ESCHEAT OR TO TAKE CUSTODIALLY,
SUBJECT TO THE RIGHT OF THE STATE OF THE LAST KNOWN ADDRESS TO RECOVER
THE PROPERTY FROM NEW YORK IF AND WHEN THE LAW OF THE STATE OF THE LAST
KNOWN ADDRESS MAKES PROVISIONS FOR ESCHEAT OR CUSTODIAL TAKING OF SUCH
PROPERTY. 
..END :








MITCHUM V. FOSTER, 407 U.S. 225 


       MITCHUM, DBA BOOK MART V. FOSTER ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

     NORTHERN DISTRICT OF FLORIDA

        NO. 70-27.  ARGUED DECEMBER 13, 1971-- DECIDED JUNE 19,

           1972 


TITLE 42 U.S.C. 1983, WHICH AUTHORIZES A SUIT IN EQUITY TO REDRESS
THE DEPRIVATION UNDER COLOR OF STATE LAW "OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION . . . ," IS WITHIN THAT
EXCEPTION OF THE FEDERAL ANTI-INJUNCTION STATUTE, 28 U.S.C. 2283, THAT
PROVIDES THAT A FEDERAL COURT MAY NOT ENJOIN STATE COURT PROCEEDINGS
"EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF CONGRESS."  AND IN THIS SEC.
1983 ACTION, THOUGH THE PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM
THAT MUST RESTRAIN A FEDERAL COURT WHEN ASKED TO ENJOIN A STATE COURT
PROCEEDING (CF. YOUNGER V. HARRIS, 401 U.S. 37, AND COMPANION CASES)
ARE NOT QUESTIONED, THE DISTRICT COURT IS HELD TO HAVE ERRED IN HOLDING
THAT THE ANTI-INJUNCTION STATUTE ABSOLUTELY BARRED ITS ENJOINING A
PENDING STATE COURT PROCEEDING UNDER ANY CIRCUMSTANCES WHATSOEVER.  PP.
228-243. 

315 F.SUPP.  1387, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE.  BURGER, C.J., FILED A
CONCURRING OPINION, IN WHICH WHITE AND BLACKMUN, JJ., JOINED, POST, P.
243. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL ANTI-INJUNCTION STATUTE PROVIDES THAT A FEDERAL COURT
"MAY NOT GRANT AN INJUNCTION TO STAY PROCEEDINGS IN A STATE COURT
EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF CONGRESS, OR WHERE NECESSARY
IN AID OF ITS JURISDICTION, OR TO PROTECT OR EFFECTUATE ITS
JUDGMENTS."  /1/  AN ACT OF CONGRESS, 42 U.S.C. 1983, EXPRESSLY
AUTHORIZES A "SUIT IN EQUITY" TO REDRESS "THE DEPRIVATION," UNDER COLOR
OF STATE LAW, "OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION.  . . . "  /2/  THE QUESTION BEFORE US IS WHETHER THIS
"ACT OF CONGRESS"  COMES WITHIN THE "EXPRESSLY AUTHORIZED" EXCEPTION OF
THE ANTI-INJUNCTION STATUTE SO AS TO PERMIT A FEDERAL COURT IN A SEC.
1983 SUIT TO GRANT AN INJUNCTION TO STAY A PROCEEDING PENDING IN A
STATE COURT.  THIS QUESTION, WHICH HAS DIVIDED THE FEDERAL COURTS, /3/
HAS LURKED IN THE BACKGROUND OF MANY OF OUR RECENT CASES, BUT WE HAVE
NOT UNTIL TODAY EXPLICITLY DECIDED IT.  /4/

I 

THE PROSECUTING ATTORNEY OF BAY COUNTY, FLORIDA, BROUGHT A
PROCEEDING IN A FLORIDA COURT TO CLOSE DOWN THE APPELLANT'S BOOKSTORE
AS A PUBLIC NUISANCE UNDER THE CLAIMED AUTHORITY OF FLORIDA LAW.  AFTER
FURTHER INCONCLUSIVE PROCEEDINGS IN THE STATE COURTS, THE APPELLANT
FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF FLORIDA, ALLEGING THAT THE ACTIONS OF THE STATE JUDICIAL
AND LAW ENFORCEMENT OFFICIALS WERE DEPRIVING HIM OF RIGHTS PROTECTED BY
THE FIRST AND FOURTEENTH AMENDMENTS.  RELYING UPON 42 U.S.C. 1983, /5/
HE ASKED FOR INJUNCTIVE AND DECLARATORY RELIEF AGAINST THE STATE COURT
PROCEEDINGS, ON THE GROUND THAT FLORIDA LAWS WERE BEING
UNCONSTITUTIONALLY APPLIED BY THE STATE COURT SO AS TO CAUSE HIM GREAT
AND IRREPARABLE HARM.  A SINGLE FEDERAL DISTRICT JUDGE ISSUED TEMPORARY
RESTRAINING ORDERS, AND A THREE-JUDGE COURT WAS CONVENED PURSUANT TO 28
U.S.C. 2281 AND 2284.  AFTER A HEARING, THE THREE-JUDGE COURT DISSOLVED
THE TEMPORARY RESTRAINING ORDERS AND REFUSED TO ENJOIN THE STATE COURT
PROCEEDING, HOLDING THAT THE "INJUNCTIVE RELIEF SOUGHT HERE AS TO THE
PROCEEDINGS PENDING IN THE FLORIDA COURTS DOES NOT COME UNDER ANY OF
THE EXCEPTIONS SET FORTH IN SECTION 2283.  IT IS NOT EXPRESSLY
AUTHORIZED BY ACT OF CONGRESS, IT IS NOT NECESSARY IN THE AID OF THIS
COURT'S JURISDICTION, AND IT IS NOT SOUGHT IN ORDER TO PROTECT OR
EFFECTUATE ANY JUDGMENT OF THIS COURT."  315 F.SUPP.  1387, 1389.  AN
APPEAL WAS BROUGHT DIRECTLY HERE UNDER 28 U.S.C. 1253, /6/  AND WE
NOTED PROBABLE JURISDICTION.  402 U.S. 941. 

 II 

IN DENYING INJUNCTIVE RELIEF, THE DISTRICT COURT RELIED ON THIS
COURT'S DECISION IN ATLANTIC COAST LINE R. CO. V. BROTHERHOOD OF
LOCOMOTIVE ENGINEERS, 398 U.S. 281.  THE ATLANTIC COAST LINE CASE DID
NOT DEAL WITH THE "EXPRESSLY AUTHORIZED" EXCEPTION OF THE ANTI
INJUNCTION STATUTE, /7/  BUT THE COURT'S OPINION IN THAT CASE DOES
BRING INTO SHARP FOCUS THE CRITICAL IMPORTANCE OF THE QUESTION NOW
BEFORE US.  FOR IN THAT CASE WE EXPRESSLY REJECTED THE VIEW THAT THE
ANTI-INJUNCTION STATUTE MERELY STATES A FLEXIBLE DOCTRINE OF COMITY,
/8/  AND MADE CLEAR THAT THE STATUTE IMPOSES AN ABSOLUTE BAN UPON THE
ISSUANCE OF A FEDERAL INJUNCTION AGAINST A PENDING STATE COURT
PROCEEDING, IN THE ABSENCE OF ONE OF THE RECOGNIZED EXCEPTIONS: 

     "ON ITS FACE THE PRESENT ACT IS AN ABSOLUTE PROHIBITION
AGAINST

  ENJOINING STATE COURT PROCEEDINGS, UNLESS THE INJUNCTION FALLS

  WITHIN ONE OF THREE SPECIFICALLY DEFINED EXCEPTIONS.  THE

  RESPONDENTS

HERE HAVE INTIMATED THAT THE ACT ONLY ESTABLISHES A 'PRINCIPLE

  OF COMITY,' NOT A BINDING RULE ON THE POWER OF THE FEDERAL
COURTS.  THE ARGUMENT IMPLIES THAT

  IN CERTAIN CIRCUMSTANCES A FEDERAL COURT MAY ENJOIN STATE COURT
PROCEEDINGS EVEN IF THAT

  ACTION CANNOT BE JUSTIFIED BY ANY OF THE THREE EXCEPTIONS.  WE
CANNOT ACCEPT ANY SUCH

  CONTENTION.  . . . (WE) HOLD THAT ANY INJUNCTION AGAINST STATE
COURT PROCEEDINGS OTHERWISE

  PROPER UNDER GENERAL EQUITABLE PRINCIPLES MUST BE BASED ON ONE OF
THE SPECIFIC STATUTORY

  EXCEPTIONS TO SEC. 2283 IF IT IS TO BE UPHELD.  . . . "  398
U.S.,AT 286-287. 

IT FOLLOWS, IN THE PRESENT CONTEXT, THAT IF 42 U.S.C. 1983 IS NOT
WITHIN THE "EXPRESSLY AUTHORIZED" EXCEPTION OF THE ANTI-INJUNCTION
STATUTE, THEN A FEDERAL EQUITY COURT IS WHOLLY WITHOUT POWER TO GRANT
ANY RELIEF IN A SEC. 1983 SUIT SEEKING TO STAY A STATE COURT
PROCEEDING.  IN SHORT, IF A SEC. 1983 ACTION IS NOT AN "EXPRESSLY
AUTHORIZED" STATUTORY EXCEPTION, THE ANTI-INJUNCTION LAW ABSOLUTELY
PROHIBITS IN SUCH AN ACTION ALL FEDERAL EQUITABLE INTERVENTION IN A
PENDING STATE COURT PROCEEDING, WHETHER CIVIL OR CRIMINAL, AND
REGARDLESS OF HOW EXTRAORDINARY THE PARTICULAR CIRCUMSTANCES MAY BE. 

LAST TERM, IN YOUNGER V. HARRIS, 401 U.S. 37, AND ITS COMPANION
CASES, /9/  THE COURT DEALT AT LENGTH WITH THE SUBJECT OF FEDERAL
JUDICIAL INTERVENTION IN PENDING STATE CRIMINAL PROSECUTIONS.  IN
YOUNGER A THREE-JUDGE FEDERAL DISTRICT COURT IN A SEC. 1983 ACTION HAD
ENJOINED A CRIMINAL PROSECUTION PENDING IN A CALIFORNIA COURT.  IN
ASKING US TO REVERSE THAT JUDGMENT, THE APPELLANT ARGUED THAT THE
INJUNCTION WAS IN VIOLATION OF THE FEDERAL ANTI-INJUNCTION STATUTE. 
401 U.S.,AT 40.  BUT THE COURT CAREFULLY ESCHEWED ANY RELIANCE ON THE
STATUTE IN REVERSING THE JUDGMENT, BASING ITS DECISION INSTEAD UPON
WHAT THE COURT CALLED "OUR FEDERALISM"-- UPON "THE NATIONAL POLICY
FORBIDDING FEDERAL COURTS TO STAY OR ENJOIN PENDING STATE COURT
PROCEEDINGS EXCEPT UNDER SPECIAL CIRCUMSTANCES."  401 U.S.,AT 41, 44. 

IN YOUNGER, THIS COURT EMPHATICALLY REAFFIRMED "THE FUNDAMENTAL
POLICY AGAINST FEDERAL INTERFERENCE WITH STATE CRIMINAL PROSECUTIONS." 
401 U.S.,AT 46.  IT MADE CLEAR THAT EVEN "THE POSSIBLE
UNCONSTITUTIONALITY OF A STATUTE 'ON ITS FACE' DOES NOT IN ITSELF
JUSTIFY AN INJUNCTION AGAINST GOOD-FAITH ATTEMPTS TO ENFORCE IT."  401
U.S.,AT 54.  AT THE SAME TIME, HOWEVER, THE COURT CLEARLY LEFT ROOM FOR
FEDERAL INJUNCTIVE INTERVENTION IN A PENDING STATE COURT PROSECUTION IN
CERTAIN EXCEPTIONAL CIRCUMSTANCES-- WHERE IRREPARABLE INJURY IS "BOTH
GREAT AND IMMEDIATE," 401 U.S.,AT 46, WHERE THE STATE LAW IS
"'FLAGRANTLY AND PATENTLY VIOLATIVE OF EXPRESS CONSTITUTIONAL
PROHIBITIONS,'" 401 U.S.,AT 53, OR WHERE THERE IS A SHOWING OF "BAD
FAITH, HARASSMENT, OR . . . OTHER UNUSUAL CIRCUMSTANCES THAT WOULD CALL
FOR EQUITABLE RELIEF."  401 U.S.,AT 54.  IN THE COMPANION CASE OF PEREZ
V. LEDESMA, 401 U.S. 82, THE COURT SAID THAT "(ONLY IN CASES OF PROVEN
HARASSMENT OR PROSECUTIONS UNDERTAKEN BY STATE OFFICIALS IN BAD FAITH
WITHOUT HOPE OF OBTAINING A VALID CONVICTION AND PERHAPS IN OTHER
EXTRAORDINARY CIRCUMSTANCES WHERE IRREPARABLE INJURY CAN BE SHOWN IS
FEDERAL INJUNCTIVE RELIEF AGAINST PENDING STATE PROSECUTIONS
APPROPRIATE."  401 U.S.,AT 85.  SEE ALSO DYSON V. STEIN, 401 U.S. 200,
203. 

WHILE THE COURT IN YOUNGER AND ITS COMPANION CASES EXPRESSLY
DISAVOWED DECIDING THE QUESTION NOW BEFORE US-- WHETHER SEC. 1983 COMES
WITHIN THE "EXPRESSLY AUTHORIZED" EXCEPTION OF THE ANTI-INJUNCTION
STATUTE, 401 U.S.,AT 54-- IT IS EVIDENT THAT OUR DECISIONS IN THOSE
CASES CANNOT BE DISREGARDED IN DECIDING THIS QUESTION.  IN THE FIRST
PLACE, IF SEC. 1983 IS NOT WITHIN THE STATUTORY EXCEPTION, THEN THE
ANTI-INJUNCTION ISSUED IN YOUNGER, AS THE APPELLANT IN THAT CASE
ARGUED, AND THERE WOULD HAVE BEEN NO OCCASION WHATEVER FOR THE COURT TO
DECIDE THAT CASE UPON THE "POLICY" GROUND OF "OUR FEDERALISM." 
SECONDLY, IF SEC. 1983 IS NOT WITHIN THE "EXPRESSLY AUTHORIZED"
EXCEPTION OF THE ANTI-INJUNCTION STATUTE, THEN WE MUST OVERRULE YOUNGER
AND ITS COMPANION CASES INSOFAR AS THEY RECOGNIZED THE PERMISSIBILITY
OF INJUNCTIVE RELIEF AGAINST PENDING CRIMINAL PROSECUTIONS IN CERTAIN
LIMITED AND EXCEPTIONAL CIRCUMSTANCES.  FOR, UNDER THE DOCTRINE OF
ATLANTIC COAST LINE, THE ANTI-INJUNCTION STATUTE WOULD, IN A SEC. 1983
CASE, THEN BE AN "ABSOLUTE PROHIBITION" AGAINST FEDERAL EQUITY
INTERVENTION IN A PENDING STATE CRIMINAL OR CIVIL PROCEEDING-- UNDER
ANY CIRCUMSTANCES WHATEVER. 

THE ATLANTIC COAST LINE AND YOUNGER CASES THUS SERVE TO DELINEATE
BOTH THE IMPORTANCE AND THE FINALITY OF THE QUESTION NOW BEFORE US.
AND IT IS IN THE SHADOW OF THOSE CASES THAT THE QUESTION MUST BE
DECIDED. 

        III 

THE ANTI-INJUNCTION STATUTE GOES BACK ALMOST TO THE BEGINNINGS OF
OUR HISTORY AS A NATION.  IN 1793, CONGRESS ENACTED A LAW PROVIDING
THAT NO "WRIT OF INJUNCTION BE GRANTED (BY ANY FEDERAL COURT) TO STAY
PROCEEDINGS IN ANY COURT OF A STATE.  . . . "  ACT OF MARCH 2, 1793; 1
STAT. 335.  THE PRECISE ORIGINS OF THE LEGISLATION ARE SHROUDED IN
OBSCURITY, /10/  BUT THE CONSISTENT UNDERSTANDING HAS BEEN THAT ITS
BASIC PURPOSE IS TO PREVENT "NEEDLESS FRICTION BETWEEN STATE AND
FEDERAL COURTS."  OKLAHOMA PACKING CO. V. GAS CO., 309 U.S. 4, 9.  THE
LAW REMAINED UNCHANGED UNTIL 1874, WHEN IT WAS AMENDED TO PERMIT A
FEDERAL COURT TO STAY STATE COURT PROCEEDINGS THAT INTERFERED WITH THE
ADMINISTRATION OF A FEDERAL BANKRUPTCY PROCEEDING.  /11/  THE PRESENT
WORDING OF THE LEGISLATION WAS ADOPTED WITH THE ENACTMENT OF TITLE 28
OF THE U.S.C. IN 1948. 

DESPITE THE SEEMINGLY UNCOMPROMISING LANGUAGE OF THE ANTI-INJUNCTION
STATUTE PRIOR TO 1948, THE COURT SOON RECOGNIZED THAT EXCEPTIONS MUST
BE MADE TO ITS BLANKET PROHIBITION IF THE IMPORT AND PURPOSE OF OTHER
ACTS OF CONGRESS WERE TO BE GIVEN THEIR INTENDED SCOPE.  SO IT WAS
THAT, IN ADDITION TO THE BANKRUPTCY LAW EXCEPTION THAT CONGRESS
EXPLICITLY RECOGNIZED IN 1874, THE COURT THROUGH THE YEARS FOUND THAT
FEDERAL COURTS WERE EMPOWERED TO ENJOIN STATE COURT PROCEEDINGS,
DESPITE THE ANTI-INJUNCTION STATUTE, IN CARRYING OUT THE WILL OF
CONGRESS UNDER AT LEAST SIX OTHER FEDERAL LAWS.  THESE COVERED A BROAD
SPECTRUM OF CONGRESSIONAL ACTION:  (1) LEGISLATION PROVIDING FOR
REMOVAL OF LITIGATION FROM STATE TO FEDERAL COURTS, /12/  (2)
LEGISLATION LIMITING THE LIABILITY OF SHIPOWNERS, /13/  (3) LEGISLATION
PROVIDING FOR FEDERAL INTERPLEADER ACTIONS, /14/  (4) LEGISLATION
CONFERRRING FEDERAL JURISDICTION OVER FARM MORTGAGES, /15/  (5)
LEGISLATION GOVERNING FEDERAL HABEAS CORPUS PROCEEDINGS, /16/  AND (6)
LEGISLATION PROVIDING FOR CONTROL OF PRICES.  /17/ 

IN ADDITION TO THE EXCEPTIONS TO THE ANTI-INJUNCTION STATUTE FOUND
TO BE EMBODIED IN THESE VARIOUS ACTS OF CONGRESS, THE COURT RECOGNIZED
OTHER "IMPLIED" EXCEPTIONS TO THE BLANKET PROHIBITION OF THE ANTI
INJUNCTION STATUTE.  ONE WAS AN "IN REM" EXCEPTION, ALLOWING A FEDERAL
COURT TO ENJOIN A STATE COURT PROCEEDING IN ORDER TO PROTECT ITS
JURISDICTION OF A RES OVER WHICH IT HAD FIRST ACQUIRED JURISDICTION. 
/18/  ANOTHER WAS A "RELITIGATION" EXCEPTION, PERMITTING A FEDERAL
COURT TO ENJOIN RELITIGATION IN A STATE COURT OF ISSUES ALREADY DECIDED
IN FEDERAL LITIGATION.  /19/  STILL A THIRD EXCEPTION, MORE RECENTLY
DEVELOPED, PERMITS A FEDERAL INJUNCTION OF STATE COURT PROCEEDINGS WHEN
THE PLAINTIFF IN THE FEDERAL COURT IS THE UNITED STATES ITSELF, OR A
FEDERAL AGENCY ASSERTING "SUPERIOR FEDERAL INTERESTS."  /20/ 

IN TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118, THE COURT IN 1941
ISSUED AN OPINION CASTING CONSIDERABLE DOUBT UPON THE APPROACH TO THE
ANTI-INJUNCTION STATUTE REFLECTED IN ITS PREVIOUS DECISIONS.  THE
COURT'S OPINION EXPRESSLY DISAVOWED THE "RELITIGATION" EXCEPTION TO THE
STATUTE, AND EMPHASIZED GENERALLY THE IMPORTANCE OF RECOGNIZING THE
STATUTE'S BASIC DIRECTIVE "OF 'HANDS OFF' BY THE FEDERAL COURTS IN THE
USE OF THE INJUNCTION TO STAY LITIGATION IN A STATE COURT."  314
U.S.,AT 132.  THE CONGRESSIONAL RESPONSE TO TOUCEY WAS THE ENACTMENT IN
1948 OF THE ANTI-INJUNCTION STATUTE IN ITS PRESENT FORM IN 28 U.S.C.
2283, WHICH, AS THE REVISER'S NOTE MAKES EVIDENCE, SERVED NOT ONLY TO
OVERRULE THE SPECIFIC HOLDING OF TOUCEY, /21/  BUT TO RESTORE "THE
BASIC LAW AS GENERALLY UNDERSTOOD AND INTERPRETED PRIOR TO THE TOUCEY
DECISION."  /22/ 

WE PROCEED, THEN, UPON THE UNDERSTANDING THAT IN DETERMINING WHETHER
SEC. 1983 COMES WITHIN THE "EXPRESSLY AUTHORIZED" EXCEPTION OF THE ANTI
INJUNCTION STATUTE, THE CRITERIA TO BE APPLIED ARE THOSE REFLECTED IN
THE COURT'S DECISIONS PRIOR TO TOUCEY.  /23/  A REVIEW OF THOSE
DECISIONS MAKES REASONABLY CLEAR WHAT THE RELEVANT CRITERIA ARE.  IN
THE FIRST PLACE, IT IS EVIDENT THAT, IN ORDER TO QUALIFY UNDER THE
"EXPRESSLY AUTHORIZED" EXCEPTION OF THE ANTI-INJUNCTION STATUTE, A
FEDERAL LAW NEED NOT CONTAIN AN EXPRESS REFERENCE TO THAT STATUTE.  AS
THE COURT HAS SAID, "NO PRESCRIBED FORMULA IS REQUIRED; AN
AUTHORIZATION NEED NOT EXPRESSLY REFER TO SEC. 2283."  AMALGAMATED
CLOTHING WORKERS V. RICHMAN BROS. CO., 348 U.S. 511, 516.  INDEED, NONE
OF THE PREVIOUSLY RECOGNIZED STATUTORY EXCEPTIONS CONTAINS ANY SUCH
REFERENCE.  /24/  SECONDLY, A FEDERAL LAW NEED NOT EXPRESSLY AUTHORIZE
AN INJUNCTION OF A STATE COURT PROCEEDING IN ORDER TO QUALIFY AS AN
EXCEPTION.  THREE OF THE SIX PREVIOUSLY RECOGNIZED STATUTORY EXCEPTIONS
CONTAIN NO SUCH AUTHORIZATION.  /25/  THIRDLY, IT IS CLEAR THAT, IN
ORDER TO QUALIFY AS AN "EXPRESSLY AUTHORIZED" EXCEPTION TO THE ANTI
INJUNCTION STATUTE, AN ACT OF CONGRESS MUST HAVE CREATED A SPECIFIC AND
UNIQUELY FEDERAL RIGHT OR REMEDY, ENFORCEABLE IN A FEDERAL COURT OF
EQUITY, THAT COULD BE FRUSTRATED IF THE FEDERAL COURT WERE NOT
EMPOWERED TO ENJOIN A STATE COURT PROCEEDING.  THIS IS NOT TO SAY THAT
IN ORDER TO COME WITHIN THE EXCEPTION AN ACT OF CONGRESS MUST, ON ITS
FACE AND IN EVERY ONE OF ITS PROVISIONS, BE TOTALLY INCOMPATIBLE WITH
THE PROHIBITION OF THE ANTI-INJUNCTION STATUTE.  /26/  THE TEST,
RATHER, IS WHETHER AN ACT OF CONGRESS, CLEARLY CREATING A FEDERAL RIGHT
OR REMEDY ENFORCEABLE IN A FEDERAL COURT OF EQUITY, COULD BE GIVEN ITS
INTENDED SCOPE ONLY BY THE STAY OF A STATE COURT PROCEEDING.  SEE
TOUCEY, SUPRA, AT 132-134; KLINE V. BURKE CONSTRUCTION CO., 260 U.S.
226; PROVIDENCE & N.Y.S.S. CO. V. HILL MFG. CO., 109 U.S. 578, 599;
TREINIES V. SUNSHINE MINING CO., 308 U.S. 66, 78; KALB V. FEUERSTEIN,
308 U.S. 433; BOWLES V. WILLINGHAM, 321 U.S. 503. 

WITH THESE CRITERIA IN VIEW, WE TURN TO CONSIDERATION OF 42 U.S.C.
1983. 

        IV 

17 STAT. 13.  IT WAS "MODELED" ON SEC. 2 OF THE CIVIL RIGHTS ACT OF
1866, 14 STAT. 27, /27/  AND WAS ENACTED FOR THE EXPRESS PURPOSE OF
"ENFORCING) THE PROVISIONS OF THE FOURTEENTH AMENDMENT."  17 STAT. 13. 
THE PREDECESSOR OF SEC. 1983 WAS THUS AN IMPORTANT PART OF THE BASIC
ALTERATION IN OUR FEDERAL SYSTEM WROUGHT IN THE RECONSTRUCTION ERA
THROUGH FEDERAL LEGISLATION AND CONSTITUTIONAL AMENDMENT.  /28/  AS A
RESULT OF THE NEW STRUCTURE OF LAW THAT EMERGED IN THE POST-CIVIL WAR
ERA-- AND ESPECIALLY OF THE FOURTEENTH AMENDMENT, WHICH WAS ITS
CENTERPIECE-- THE ROLE OF THE FEDERAL GOVERNMENT AS A GUARANTOR OF
BASIC FEDERAL RIGHTS AGAINST STATE POWER WAS CLEARLY ESTABLISHED. 
MONROE V. PAPE, 365 U.S. 167; MCNEESE V. BOARD OF EDUCATION, 373 U.S.
668; SHELLEY V. KRAEMER, 334 U.S. 1; ZWICKLER V. KOOTA, 389 U.S. 241,
245-249; H. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908); J.
TENBROEK, THE ANTI-SLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT (1951). 
/29/  SECTION 1983 OPENED THE FEDERAL COURTS TO PRIVATE CITIZENS,
OFFERING A UNIQUELY FEDERAL REMEDY AGAINST INCURSIONS UNDER THE CLAIMED
AUTHORITY OF STATE LAW UPON RIGHTS SECURED BY THE CONSTITUTION AND LAWS
OF THE NATION.  /30/ 

IT IS CLEAR FROM THE LEGISLATIVE DEBATES SURROUNDING PASSAGE OF SEC.
1983'S PREDECESSOR THAT THE ACT WAS INTENDED TO ENFORCE THE PROVISIONS
OF THE FOURTEENTH AMENDMENT "AGAINST STATE ACTION, . . . WHETHER THAT
ACTION BE EXECUTIVE, LEGISLATIVE, OR JUDICIAL."  EX PARTE VIRGINIA, 100
U.S. 339, 346.  PROPONENTS OF THE LEGISLATION NOTED THAT STATE COURTS
WERE BEING USED TO HARASS AND INJURE INDIVIDUALS, EITHER BECAUSE THE
STATE COURTS WERE POWERLESS TO STOP DEPRIVATIONS OR WERE IN LEAGUE WITH
THOSE WHO WERE BENT UPON ABROGATION OF FEDERALLY PROTECTED RIGHTS. 

AS REPRESENTATIVE LOWE STATED, THE "RECORDS OF THE (STATE) TRIBUNALS
ARE SEARCHED IN VAIN FOR EVIDENCE OF EFFECTIVE REDRESS (OF FEDERALLY
SECURED RIGHTS).  . . . WHAT LESS THAN THIS (THE CIVIL RIGHTS ACT OF
1871) WILL AFFORD AN ADEQUATE REMEDY?  THE FEDERAL GOVERNMENT CANNOT
SERVE A WRIT OF MANDAMUS UPON STATE EXECUTIVES OR UPON STATE COURTS TO
COMPEL THEM TO PROTECT THE RIGHTS, PRIVILEGES AND IMMUNITIES OF
CITIZENS.  . . . THE CASE HAS ARISEN . . . WHEN THE FEDERAL GOVERNMENT
MUST RESORT TO ITS OWN AGENCIES TO CARRY ITS OWN AUTHORITY INTO
EXECUTION.  HENCE THIS BILL THROWS OPEN THE DOORS OF THE UNITED STATES
COURTS TO THOSE WHOSE RIGHTS UNDER THE CONSTITUTION ARE DENIED OR
IMPAIRED."  CONG. GLOBE, 42D CONG., 1ST SESS., 374-376 (1871).  THIS
VIEW WAS ECHOED BY SENATOR OSBORN:  "IF THE STATE COURTS HAD PROVEN
THEMSELVES COMPETENT TO SUPPRESS THE LOCAL DISORDERS, OR TO MAINTAIN
LAW AND ORDER, WE SHOULD NOT HAVE BEEN CALLED UPON TO LEGISLATE.  . . .
WE ARE DRIVEN BY EXISTING FACTS TO PROVIDE FOR THE SEVERAL STATES IN
THE SOUTH WHAT THEY HAVE BEEN UNABLE TO FULLY PROVIDE FOR THEMSELVES;
I.E., THE FULL AND COMPLETE ADMINISTRATION OF JUSTICE IN THE COURTS. 
AND THE COURTS WITH REFERENCE TO WHICH WE LEGISLATE MUST BE THE UNITED
STATES COURTS."  ID., AT 653.  AND REPRESENTATIVE PERRY CONCLUDED:
"SHERIFFS, HAVING EYES TO SEE, SEE NOT; JUDGES, HAVING EARS TO HEAR,
HEAR NOT; WITNESSES CONCEAL THE TRUTH OR FALSIFY IT; GRAND AND PETIT
JURIES ACT AS IF THEY MIGHT BE ACCOMPLICES.  . . . (ALL THE APPARATUS
AND MACHINERY OF CIVIL GOVERNMENT, ALL THE PROCESSES OF JUSTICE, SKULK
AWAY AS IF GOVERNMENT AND JUSTICE WERE CRIMES AND FEARED DETECTION. 
AMONG THE MOST DANGEROUS THINGS AN INJURED PARTY CAN DO IS TO APPEAL TO
JUSTICE."  ID., AT APP. 78.  /31/ 

THOSE WHO OPPOSED THE ACT OF 1871 CLEARLY RECOGNIZED THAT THE
PROPONENTS WERE EXTENDING FEDERAL POWER IN AN ATTEMPT TO REMEDY THE
STATE COURTS' FAILURE TO SECURE FEDERAL RIGHTS.  THE DEBATE WAS NOT
ABOUT WHETHER THE PREDECESSOR OF SEC. 1983 EXTENDED TO ACTIONS OF STATE
COURTS, BUT WHETHER THIS INNOVATION WAS NECESSARY OR DESIRABLE.  /32/ 

THIS LEGISLATIVE HISTORY MAKES EVIDENT THAT CONGRESS CLEARLY
CONCEIVED THAT IT WAS ALTERING THE RELATIONSHIP BETWEEN THE STATES AND
THE NATION WITH RESPECT TO THE PROTECTION OF FEDERALLY CREATED RIGHTS;
IT WAS CONCERNED THAT STATE INSTRUMENTALITIES COULD NOT PROTECT THOSE
RIGHTS; IT REALIZED THAT STATE OFFICERS MIGHT, IN FACT, BE ANTIPATHETIC
TO THE VINDICATION OF THOSE RIGHTS; AND IT BELIEVED THAT THESE FAILINGS
EXTENDED TO THE STATE COURTS. 

        V 

CONCEPTS OF FEDERALISM THAT HAD PREVAILED IN THE LATE 18TH CENTURY WHEN
THE ANTI-INJUNCTION STATUTE WAS ENACTED.  THE VERY PURPOSE OF SEC. 1983
WAS TO INTERPOSE THE FEDERAL COURTS BETWEEN THE STATES AND THE PEOPLE,
AS GUARDIANS OF THE PEOPLE'S FEDERAL RIGHTS-- TO PROTECT THE PEOPLE
FROM UNCONSTITUTIONAL ACTION UNDER COLOR OF STATE LAW, "WHETHER THAT
ACTION BE EXECUTIVE, LEGISLATIVE, OR JUDICIAL."  EX PARTE VIRGINIA, 100
U.S.,AT 346.  IN CARRYING OUT THAT PURPOSE, CONGRESS PLAINLY AUTHORIZED
THE FEDERAL COURTS TO ISSUE INJUNCTIONS IN SEC. 1983 ACTIONS, BY
EXPRESSLY AUTHORIZING A "SUIT IN EQUITY" AS ONE OF THE MEANS OF
REDRESS.  AND THIS COURT LONG AGO RECOGNIZED THAT FEDERAL INJUNCTIVE
RELIEF AGAINST A STATE COURT PROCEEDING CAN IN SOME CIRCUMSTANCES BE
ESSENTIAL TO PREVENT GREAT, IMMEDIATE, AND IRREPARABLE LOSS OF A
PERSON'S CONSTITUTIONAL RIGHTS.  EX PARTE YOUNG, 209 U.S. 123; CF.
TRUAX V. RAICH, 239 U.S. 33; DOMBROWSKI V. PFISTER, 380 U.S. 479.  FOR
THESE REASONS WE CONCLUDE THAT, UNDER THE CRITERIA ESTABLISHED IN OUR
PREVIOUS DECISIONS CONSTRUING THE ANTI-INJUNCTION STATUTE, SEC. 1983 IS
AN ACT OF CONGRESS THAT FALLS WITHIN THE "EXPRESSLY AUTHORIZED"
EXCEPTION OF THAT LAW. 

IN SO CONCLUDING, WE DO NOT QUESTION OR QUALIFY IN ANY WAY THE
PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM THAT MUST RESTRAIN A
FEDERAL COURT WHEN ASKED TO ENJOIN A STATE COURT PROCEEDING.  THESE
PRINCIPLES, IN THE CONTEXT OF STATE CRIMINAL PROSECUTIONS, WERE
CANVASSED AT LENGTH LAST TERM IN YOUNGER V. HARRIS, 401 U.S. 37, AND
ITS COMPANION CASES.  THEY ARE PRINCIPLES THAT HAVE BEEN EMPHASIZED BY
THIS COURT MANY TIMES IN THE PAST.  FENNER V. BOYKIN, 271 U.S. 240;
SPIELMAN MOTOR SALES CO. V. DODGE, 295 U.S. 89; BEAL V. MISSOURI PAC.
R. CO., 312 U.S. 45; WATSON V. BUCK, 313 U.S. 387; WILLIAMS V. MILLER,
317 U.S. 599; DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157; STEFANELLI V.
MINARD, 342 U.S. 117; CAMERON V. JOHNSON, 390 U.S. 611.  TODAY WE
DECIDE ONLY THAT THE DISTRICT COURT IN THIS CASE WAS IN ERROR IN
HOLDING THAT, BECAUSE OF THE ANTI-INJUNCTION STATUTE, IT WAS ABSOLUTELY
WITHOUT POWER IN THIS SEC. 1983 ACTION TO ENJOIN A PROCEEDING PENDING
IN A STATE COURT UNDER ANY CIRCUMSTANCES WHATSOEVER. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

          IT IS SO ORDERED. 

/1/  28 U.S.C. 2283. 

/2/  THE STATUTE PROVIDES IN FULL:  "EVERY PERSON WHO, UNDER COLOR
OF ANY STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE, OF ANY STATE
OR TERRITORY, SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE
UNITED STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE
DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED IN AN
ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR
REDRESS." 

/3/  COMPARE COOPER V. HUTCHISON, 184 F.2D 119 (CA3) (SEC. 1983 IS
AN "EXPRESSLY AUTHORIZED" EXCEPTION), WITH BAINES V. CITY OF DANVILLE,
337 F.2D 579 (CA4) (SEC. 1983 IS NOT AN "EXPRESSLY AUTHORIZED"
EXCEPTION). 

/4/  SEE DOMBROWSKI V. PFISTER, 380 U.S. 479, 484 N. 2; CAMERON V.
JOHNSON, 390 U.S. 611, 613 N. 3; YOUNGER V. HARRIS, 401 U.S. 37, 54. 
SEE ALSO LYNCH V. HOUSEHOLD FINANCE CORP., 405 U.S. 538, 556; ROUDEBUSH
V. HARTKE, 405 U.S. 15. 

IN YOUNGER, SUPRA, MR. JUSTICE DOUGLAS WAS THE ONLY MEMBER OF THE
COURT WHO TOOK A POSITION ON THE QUESTION NOW BEFORE US.  HE EXPRESSED
THE VIEW THAT SEC. 1983 IS INCLUDED IN THE "EXPRESSLY AUTHORIZED
EXCEPTION TO SEC. 2283.  . . . " 401 U.S.,AT 62.  CF. ID., AT 54
(STEWART, J., JOINED BY HARLAN, J., CONCURRING); PEREZ V. LEDESMA, 401
U.S. 82, 120 N. 14 (SEPARATE OPINION OF BRENNAN, J., JOINED BY WHITE
AND MARSHALL, JJ.). 

/5/  FEDERAL JURISDICTION WAS BASED UPON 28 U.S.C. 1343(3).  THE
STATUTE STATES IN RELEVANT PART:

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION AUTHORIZED BY LAW TO BE COMMENCED BY ANY PERSON:

        .          .          .         . 

"(3) TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,
STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT,
PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED STATES
OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF CITIZENS OR OF
ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES.  . . . " 

/6/  THE STATUTE PROVIDES:  "EXCEPT AS OTHERWISE PROVIDED BY LAW,
ANY PARTY MAY APPEAL TO THE SUPREME COURT FROM AN ORDER GRANTING OR
DENYING, AFTER NOTICE AND HEARING, AN INTERLOCUTORY OR PERMANENT
INJUNCTION IN ANY CIVIL ACTION, SUIT OR PROCEEDING REQUIRED BY ANY ACT
OF CONGRESS TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE
JUDGES." 

/7/  AT ISSUE WERE THE OTHER TWO EXCEPTIONS OF THE ANTI-INJUNCTION
STATUTE:  "WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT OR
EFFECTUATE ITS JUDGMENTS."  ATLANTIC COAST LINE R. CO. V. BROTHERHOOD
OF LOCOMOTIVE ENGINEERS, 398 U.S. 281, 288. 

/8/  SEE FIRST NATIONAL BANK & TRUST CO. V. VILLAGE OF SKOKIE, 173
F.2D 1; BAINES, 337 F.2D,AT 593.  SEE ALSO TAYLOR & WILLIS, THE POWER
OF FEDERAL COURTS TO ENJOIN PROCEEDINGS IN STATE COURTS, 42 YALE L.J.
1169, 1194 (1933). 

/9/  SAMUELS V. MACKELL, 401 U.S. 66; BOYLE V. LANDRY, 401 U.S. 77;
PEREZ V. LEDESMA, 401 U.S. 82; DYSON V. STEIN, 401 U.S. 200; BYRNE V.
KARALEXIS, 401 U.S. 216. 

/10/  "THE HISTORY OF THIS PROVISION IN THE JUDICIARY ACT OF 1793 IS
NOT FULLY KNOWN.  WE KNOW THAT ON DECEMBER 31, 1790, ATTORNEY GENERAL
EDMUND RANDOLPH REPORTED TO THE HOUSE OF REPRESENTATIVES ON DESIRABLE
CHANGES IN THE JUDICIARY ACT OF 1789.  AM. STAT PAPERS, MISC., VOL. 1,
NO. 17, PP. 21-36.  THE MOST SERIOUS QUESTION RAISED BY RANDOLPH
CONCERNED THE ARDUOUSNESS OF THE CIRCUIT DUTIES IMPOSED ON THE SUPREME
COURT JUSTICES.  BUT THE REPORT ALSO SUGGESTED A NUMBER OF AMENDMENTS
DEALING WITH PROCEDURAL MATTERS.  A SECTION OF THE PROPOSED BILL
SUBMITTED BY HIM PROVIDED THAT 'NO INJUNCTION IN EQUITY SHALL BE
GRANTED BY A DISTRICT COURT TO A JUDGMENT AT LAW OF A STATE COURT.' 
ID., P. 26.  RANDOLPH EXPLAINED THAT THIS CLAUSE 'WILL DEBAR THE
DISTRICT COURT FROM INTERFERING WITH THE JUDGMENTS AT LAW IN THE STATE
COURTS, FOR IF THE PLAINTIFF AND DEFENDANT RELY UPON THE STATE COURTS,
AS FAR AS THE JUDGMENT, THEY OUGHT TO CONTINUE THERE AS THEY HAVE
BEGUN.  IT IS ENOUGH TO SPLIT THE SAME SUIT INTO ONE AT LAW, AND
ANOTHER IN EQUITY, WITHOUT ADDING A FURTHER SEPARATION, BY THROWING THE
COMMON LAW SIDE OF THE QUESTION INTO THE STATE COURTS, AND THE EQUITY
SIDE INTO THE FEDERAL COURTS.'  ID., P. 34.  THE REPORT WAS CONSIDERED
BY THE HOUSE SITTING AS A COMMITTEE OF THE WHOLE, AND THEN WAS REFERRED
TO SUCCESSIVE SPECIAL COMMITTEES FOR FURTHER CONSIDERATION.  NO ACTION
WAS TAKEN UNTIL AFTER CHIEF JUSTICE JAY AND HIS ASSOCIATES WROTE THE
PRESIDENT THAT THEIR CIRCUIT-RIDING DUTIES WERE TOO BURDENSOME. 
AMERICAN STATE PAPERS, MISC., VOL. 1, NO. 32, P. 51.  IN RESPONSE TO
THIS COMPLAINT, WHICH WAS TRANSMITTED TO CONGRESS, THE ACT OF MARCH 2,
1793, WAS PASSED, CONTAINING IN SEC. 5, INTER ALIA, THE PROHIBITION
AGAINST STAYING STATE COURT PROCEEDINGS. 

"CHARLES WARREN IN HIS ARTICLE FEDERAL AND STATE COURT INTERFERENCE,
43 HARV.L.REV.  345, 347, SUGGESTS THAT THIS PROVISION WAS THE DIRECT
CONSEQUENCE OF RANDOLPH'S REPORT.  THIS SEEMS DOUBTFUL, IN VIEW OF THE
VERY NARROW PURPOSE OF RANDOLPH'S PROPOSAL, NAMELY, THAT FEDERAL COURTS
OF EQUITY SHOULD NOT INTERFERE WITH THE ENFORCEMENT OF JUDGMENTS AT LAW
RENDERED IN THE STATE COURTS.  SEE TAYLOR AND WILLIS, THE POWER OF
FEDERAL COURTS TO ENJOIN PROCEEDINGS IN STATE COURTS, 42 YALE L.J.
1169, 1171, N. 14. 

"THERE IS NO RECORD OF ANY DEBATES OVER THE STATUTE.  SEE 3 ANNALS
OF CONGRESS (1791-93).  IT HAS BEEN SUGGESTED THAT THE PROVISION
REFLECTED THE THEN STRONG FEELING AGAINST THE UNWARRANTED INTRUSION OF
FEDERAL COURTS UPON STATE SOVEREIG SOVEREIGNTY.  CHISHOLM V. GEORGIA, 2
DALL.  419, WAS DECIDED ON FEBRUARY 18, 1793, LESS THAN TWO WEEKS
BEFORE THE PROVISION WAS ENACTED INTO LAW.  THE SIGNIFICANCE OF THIS
PROXIMITY IS DOUBTFUL.  COMPARE WARREN, FEDERAL AND STATE COURT
INTERFERENCE, 43 HARV.L.REV.  345, 347-348, WITH GUNTER V. ATLANTIC
COAST LINE R. CO., 200 U.S. 273, 291-292.  MUCH MORE PROBABLE IS THE
SUGGESTION THAT THE PROVISION REFLECTED THE PREVAILING PREJUDICES
AGAINST EQUITY JURISDICTION.  THE JOURNAL OF WILLIAM MACLAY (1927 ED.),
CHRONICLING THE PROCEEDINGS OF THE SENATE WHILE HE WAS ONE OF ITS
MEMBERS (1789-1791), CONTAINS ABUNDANT EVIDENCE OF A WIDESPREAD
HOSTILITY TO CHANCERY PRACTICE.  SEE ESPECIALLY, PP. 92-94, 101-06
(DEBATE ON THE BILL THAT BECAME JUDICIARY ACT OF (1789).  MOREOVER,
SENATOR ELLSWORTH (SOON TO BECOME CHIEF JUSTICE OF THE UNITED STATES),
THE PRINCIPAL DRAFTSMAN OF BOTH THE 1789 AND 1793 JUDICIARY ACTS, OFTEN
INDICATED A DISLIKE FOR EQUITY JURISDICTION.  SEE BROWN, LIFE OF OLIVER
ELLSWORTH (1905 ED.)  194; JOURNAL OF WILLIAM MACLAY (1927 ED.)  103
04; WARREN, NEW LIGHT ON THE HISTORY OF THE FEDERAL JUDICIARY ACT OF
1789, 37 HARV.L.REV.  49, 96-100."  TOUCEY V. NEW YORK LIFE INS. CO.,
314 U.S. 118, 130-132.    SEE ALSO NOTE, 38 U.CHI.L.REV.  612 (1971);
1A J. MOORE, FEDERAL PRACTICE 2302 (1964); H. HART & H. WECHSLER, THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 1075-1078 (1953); DURFEE & SLOSS,
FEDERAL INJUNCTION AGAINST PROCEEDINGS IN STATE COURTS:  THE LIFE
HISTORY OF A STATUTE, 30 MICH.L.REV.  1145 (1932). 

/11/  AS SO AMENDED, THE STATUTE PROVIDED THAT STATE COURT
PROCEEDINGS COULD BE ENJOINED "WHERE SUCH INJUNCTION MAY BE AUTHORIZED
BY ANY LAW RELATING TO PROCEEDINGS IN BANKRUPTCY."  REV. STAT. SEC. 720
(1874). 

/12/  SEE FRENCH V. HAY, 22 WALL.  250; KLINE V. BURKE CONSTRUCTION
CO., 260 U.S. 226.  THE FEDERAL REMOVAL PROVISIONS, BOTH CIVIL AND
CRIMINAL, 28 U.S.C. 1441-1450, PROVIDE THAT ONCE A COPY OF THE REMOVAL
PETITION IS FILED WITH THE CLERK OF THE STATE COURT, THE "STATE COURT
SHALL PROCEED NO FURTHER UNLESS AND UNTIL THE CASE IS REMANDED."  28
U.S.C. 1446(E). 

/13/  SEE PROVIDENCE & N.Y.S.S. CO. V. HILL MFG. CO., 109 U.S. 578. 
THE ACT OF 1851, 9 STAT. 635, AS AMENDED, PROVIDES THAT ONCE A
SHIPOWNER HAS DEPOSITED WITH THE COURT AN AMOUNT EQUAL TO THE VALUE OF
HIS INTEREST IN THE SHIP, "ALL CLAIMS AND PROCEEDINGS AGAINST THE OWNER
WITH RESPECT TO THE MATTER IN QUESTION SHALL CEASE."  46 U.S.C. 185. 

/14/  SEE TREINIES V. SUNSHINE MINING CO., 308 U.S. 66.  THE
INTERPLEADER ACT OF 1926, 44 STAT. 416, AS CURRENTLY WRITTEN PROVIDES
THAT IN "ANY CIVIL ACTION OF INTERPLEADER . . . A DISTRICT COURT MAY .
. . ENTER ITS ORDER RESTRAINING (ALL CLAIMANTS) . . . FROM INSTITUTING
OR PROSECUTING ANY PROCEEDING IN ANY STATE OR UNITED STATES COURT
AFFECTING THE PROPERTY, INSTRUMENT OR OBLIGATION INVOLVED IN THE
INTERPLEADER ACTION."  28 U.S.C. 2361. 

/15/  SEE KALB V. FEUERSTEIN, 308 U.S. 433.  THE FRAZIER-LEMKE FARM
MORTGAGE ACT, AS AMENDED IN 1935, 49 STAT. 944, PROVIDES THAT IN
SITUATIONS TO WHICH IT IS APPLICABLE A FEDERAL COURT SHALL "STAY ALL
JUDICIAL OR OFFICIAL PROCEEDINGS IN ANY COURT."  11 U.S.C. 203(S)(2)
(1940 ED.). 

/16/  SEE EX PARTE ROYALL, 117 U.S. 241, 248-249.  THE FEDERAL
HABEAS CORPUS ACT PROVIDES THAT A FEDERAL COURT BEFORE WHICH A HABEAS
CORPUS PROCEEDING IS PENDING MAY "STAY ANY PROCEEDING AGAINST THE
PERSON DETAINED IN ANY STATE COURT . . . FOR ANY MATTER INVOLVED IN THE
HABEAS CORPUS PROCEEDING."  28 U.S.C. 2251. 

/17/  SECTION 205(A) OF THE EMERGENCY PRICE CONTROL ACT OF 1942, 56
STAT. 33, PROVIDED THAT THE PRICE ADMINISTRATOR COULD REQUEST A FEDERAL
DISTRICT COURT TO ENJOIN ACTS THAT VIOLATED OR THREATENED TO VIOLATE
THE ACT.  IN PORTER V. DICKEN, 328 U.S. 252, WE HELD THAT THIS
AUTHORITY WAS BROAD ENOUGH TO JUSTIFY AN INJUNCTION TO RESTRAIN STATE
COURT PROCEEDINGS.  ID., AT 255.  THE EMERGENCY PRICE CONTROL ACT WAS
THUS CONSIDERED A CONGRESSIONALLY AUTHORIZED EXCEPTION TO THE ANTI
INJUNCTION STATUTE.  IBID.; SEE ALSO BOWLES V. WILLINGHAM, 321 U.S.
503.  SECTION 205(A) EXPIRED IN 1947.  ACT OF JULY 25, 1946, 60 STAT.
664. 

/18/  SEE, E.G., TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S.,AT 135
136; FREEMAN V. HOWE, 24 HOW.  450; KLINE V. BURKE CONSTRUCTION CO.,
260 U.S. 226. 

/19/  SEE, E.G., TOUCEY, SUPRA, AT 137-141; DIAL V. REYNOLDS, 96
U.S. 340; SUPREME TRIBE OF BEN-HUR V. CAUBLE, 255 U.S. 356.  SEE
GENERALLY 1A J. MOORE, FEDERAL PRACTICE 2302-2311 (1965). 

/20/  LEITER MINERALS INC. V. UNITED STATES, 352 U.S. 220; NLRB V.
NASH-FINCH CO., 404 U.S. 138. 

/21/  THE REVISER'S NOTE STATES IN PART:  "THE EXCEPTIONS
SPECIFICALLY INCLUDE THE WORDS 'TO PROTECT OR EFFECTUATE ITS
JUDGMENTS,' FOR LACK OF WHICH THE SUPREME COURT HELD THAT THE FEDERAL
COURTS ARE WITHOUT POWER TO ENJOIN RELITIGATION OF CASES AND
CONTROVERSIES FULLY ADJUDICATED BY SUCH COURTS.  (SEE TOUCEY V. NEW
YORK LIFE INSURANCE CO., . . . 314 U.S. 118.  . . . ) A VIGOROUS
DISSENTING OPINION (314 U.S. 141) NOTES THAT AT THE TIME OF THE 1911
REVISION OF THE JUDICIAL CODE, THE POWER OF THE COURTS . . . OF THE
UNITED STATES TO PROTECT THEIR JUDGMENTS WAS UNQUESTIONED AND THAT THE
REVISERS OF THAT CODE NOTED NO CHANGE AND CONGRESS INTENDED NO
CHANGE."  H. R. REP. NO. 308, 80TH CONG., 1ST SESS., A181-182 (1947). 

/22/  IBID. 

/23/  CF. AMALGAMATED CLOTHING WORKERS V. RICHMAN BROS. CO., 348
U.S. 511, 521 (DISSENTING OPINION). 

/24/  SEE NN. 12, 13, 14, 15, 16, AND 17, SUPRA. 

/25/  SEE NN. 12, 13, AND 17, SUPRA.  THE FEDERAL COURTS HAVE FOUND
THAT OTHER ACTS OF CONGRESS THAT DO NOT REFER TO SEC. 2283 OR TO
INJUNCTIONS AGAINST STATE COURT PROCEEDINGS NONETHELESS COME WITHIN THE
"EXPRESSLY AUTHORIZED" LANGUAGE OF THE ANTI-INJUNCTION STATUTE.  SEE,
E.G., WALLING V. BLACK DIAMOND COAL MINING CO., 59 F.SUPP.  348, 351
(WD KY.)  (THE FAIR LABOR STANDARDS ACT); OKIN V. SEC, 161 F.2D 978,
980 (CA2) (THE PUBLIC UTILITY HOLDING COMPANY ACT); DILWORTH V. RINER,
343 F.2D 226, 230 (CA5) (THE 1964 CIVIL RIGHTS ACT); STUDEBAKER CORP.
V. GITTLIN, 360 F.2D 692 (CA2) (THE SECURITIES AND EXCHANGE ACT). 

/26/  CF. BAINES V. CITY OF DANVILLE, 337 F.2D 579 (CA4). 

/27/  SEE REMARKS OF REPRESENTATIVE SHELLABARGER, CHAIRMAN OF THE
HOUSE SELECT COMMITTEE WHICH DRAFTED THE CIVIL RIGHTS ACT OF 1871,
CONG. GLOBE, 42D CONG., 1ST SESS., APP. 68 (1871), AND LYNCH V.
HOUSEHOLD FINANCE CORP., 405 U.S. 538, 545 N. 9. 

/28/  IN ADDITION TO PROPOSING THE THIRTEENTH, FOURTEENTH, AND
FIFTEENTH AMENDMENTS, CONGRESS, FROM 1866 TO 1875 ENACTED THE FOLLOWING
CIVIL RIGHTS LEGISLATION:  ACT OF APRIL 9, 1866, 14 STAT. 27; ACT OF
MAY 31, 1870, 16 STAT. 140; ACT OF APRIL 20, 1871, 17 STAT. 13; AND ACT
OF MARCH 1, 1875, 18 STAT. 335.  IN 1875, CONGRESS ALSO PASSED THE
GENERAL FEDERAL-QUESTION PROVISION, GIVING FEDERAL COURTS THE POWER TO
HEAR SUITS ARISING UNDER ART. III, SEC. 2, OF THE CONSTITUTION.  ACT OF
MARCH 3, 1875, 18 STAT. 470.  THIS IS THE PREDECESSOR OF 28 U.S.C.
1331. 

/29/  SEE GENERALLY GRESSMAN, THE UNHAPPY HISTORY OF CIVIL RIGHTS
LEGISLATION, 50 MICH.L.REV.  1323 (1952); NOTE, 75 YALE L.J. 1007
(1966); F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT
65 (1928).  AS ONE COMMENTATOR HAS PUT IT:  "THAT STATUTORY PLAN (OF
THE FOURTEENTH AMENDMENT AND ACTS OF CONGRESS TO ENFORCE IT) DID SUPPLY
THE MEANS OF VINDICATING THOSE RIGHTS (OF PERSON AND PROPERTY) THROUGH
THE INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT.  . . . IT DID
CONSTITUTE THE FEDERAL GOVERNMENT THE PROTECTOR OF THE CIVIL RIGHTS.  .
. . " TENBROEK, AT 185.  SEE ALSO UNITED STATES V. PRICE, 383 U.S. 787,
801 N. 9; K. STAMPP, THE ERA OF RECONSTRUCTION (1965). 

/30/  AS REPRESENTATIVE SHELLABARGER STATED, THE CIVIL RIGHTS ACT OF
1871 "NOT ONLY PROVIDES A CIVIL REMEDY FOR PERSONS WHOSE FORMER
CONDITION MAY HAVE BEEN THAT OF SLAVES, BUT ALSO TO ALL PEOPLE WHERE,
UNDER COLOR OF STATE LAW, THEY OR ANY OF THEM MAY BE DEPRIVED OF RIGHTS
TO WHICH THEY ARE ENTITLED UNDER THE CONSTITUTION BY REASON AND VIRTUE
OF THEIR NATIONAL CITIZENSHIP."  CONG. GLOBE, 42D CONG., 1ST SESS.,
APP. 68 (1871).  AND AS REPRESENTATIVE HOAR STATED:  "THE PRINCIPAL
DANGER THAT MENACES US TODAY IS FROM THE EFFORT WITHIN THE STATES TO
DEPRIVE CONSIDERABLE NUMBERS OF PERSONS OF THE CIVIL AND EQUAL RIGHTS
WHICH THE GENERAL GOVERNMENT IS ENDEAVORING TO SECURE TO THEM."  CONG.
GLOBE, 42D CONG., 1ST SESS. 335. 

ALTHOUGH, AS ORIGINALLY DRAFTED IN 1871, SEC. 1983'S PREDECESSOR
PROTECTED RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION, THE PROVISION INCLUDED BY THE CONGRESS IN THE REVISED
STATUTES OF 1874 WAS ENLARGED TO PROVIDE PROTECTION FOR RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED BY FEDERAL LAW AS WELL.  REV. STAT.
SEC. 1979. 

/31/  REPRESENTATIVE COBURN STATED:  "THE UNITED STATES COURTS ARE
FURTHER ABOVE MERE LOCAL INFLUENCE THAN THE COUNTY COURTS; THEIR JUDGES
CAN ACT WITH MORE INDEPENDENCE, CANNOT BE PUT UNDER TERROR AS LOCAL
JUDGES CAN; THEIR SYMPATHIES ARE NOT SO NEARLY IDENTIFIED WITH THOSE OF
THE VICINAGE; THE JURORS ARE TAKEN FROM THE STATE, AND NOT THE
NEIGHBORHOOD; THEY WILL BE ABLE TO RISE ABOVE PREJUDICES OR BAD
PASSIONS OR TERROR MORE EASILY.  . . . " CONG. GLOBE, 42D CONG., 1ST
SESS., 460 (1871). 

SEE ALSO ID., AT APP. 85 (REP. BINGHAM); 321 (REP. STOUGHTON); 333
334 (REP. HOAR); 389 (REP. ELLIOT); 394 (REP. RAINEY); 429 (REP.
BEATTY); APP. 68-69 (REP. SHELLABARGER); APP. 78 (REP. PERRY); 345
(SEN. SHERMAN); 505 (SEN. PRATT); 577 (SEN. CARPENTER); 651 (SEN.
SUMNER); 653 (SEN. OSBORN); APP. 255 (SEN. WILSON).  CF. ID., AT 697
(SEN. EDMUNDS). 

/32/  SEE, E.G., CONG. GOLBE, 42D CONG., 1ST SESS., 361 (REP.
SWANN); 385 (REP. LEWIS); 416 (REP. BIGGS); 429 (REP. MCHENRY); APP.
179 (REP. VOORHEES); 599-600 (SEN. SAULSBURY); APP. 216 (SEN.
THURMAN). 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE WHITE AND MR.
JUSTICE BLACKMUN JOIN, CONCURRING. 

I CONCUR IN THE OPINION OF THE COURT AND ADD A FEW WORDS TO
EMPHASIZE WHAT THE COURT IS AND IS NOT DECIDING TODAY AS I READ THE
OPINION.  THE COURT HOLDS ONLY THAT 28 U.S.C. 2283, WHICH IS AN
ABSOLUTE BAR TO INJUNCTIONS AGAINST STATE COURT PROCEEDINGS IN MOST
SUITS, DOES NOT APPLY TO A SUIT BROUGHT UNDER 42 U.S.C. 1983 SEEKING AN
INJUNCTION OF STATE PROCEEDINGS.  BUT, AS THE COURT'S OPINION HAS
NOTED, IT DOES NOTHING TO "QUESTION OR QUALIFY IN ANY WAY THE
PRINCIPLES OF EQUITY, COMITY, AND FEDERALISM THAT MUST RESTRAIN A
FEDERAL COURT WHEN ASKED TO ENJOIN A STATE COURT PROCEEDING."  ANTE, AT
243.  IN THE CONTEXT OF PENDING STATE CRIMINAL PROCEEDINGS, WE HELD IN
YOUNGER V. HARRIS, 401 U.S. 37 (1971), THAT THESE PRINCIPLES ALLOW A
FEDERAL COURT PROPERLY TO ISSUE AN INJUNCTION IN ONLY A NARROW CLASS OF
CIRCUMSTANCES.  WE HAVE NOT YET REACHED OR DECIDED EXACTLY HOW GREAT A
RESTRAINT IS IMPOSED BY THESE PRINCIPLES ON A FEDERAL COURT ASKED TO
ENJOIN STATE CIVIL PROCEEDINGS.  THEREFORE, ON REMAND IN THIS CASE, IT
SEEMS TO ME THE DISTRICT COURT, BEFORE REACHING A DECISION ON THE
MERITS OF APPELLANT'S CLAIM, SHOULD PROPERLY CONSIDER WHETHER GENERAL
NOTIONS OF EQUITY OR PRINCIPLES OF FEDERALISM, SIMILAR TO THOSE INVOKED
IN YOUNGER, PREVENT THE ISSUANCE OF AN INJUNCTION AGAINST THE STATE
"NUISANCE ABATEMENT" PROCEEDINGS IN THE CIRCUMSTANCES OF THIS CASE. 

ROBERT EUGENE SMITH ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WAS PAUL SHIMEK, JR. 

RAYMOND L. MARKY, ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED THE
CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE ROBERT L. SHEVIN,
ATTORNEY GENERAL, AND GEORGE R. GEORGIEFF, ASSISTANT ATTORNEY GENERAL. 

GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, AND MICHAEL
R. PERLE AND JOHN DECICCO, DEPUTY ATTORNEYS GENERAL, FILED A BRIEF FOR
THE STATE OF NEW JERSEY AS AMICUS CURIAE. 
..END :














MCNEIL V. DIRECTOR, PATUXENT INSTITUTION, 407 U.S. 245 


       MCNEIL V. DIRECTOR, PATUXENT INSTITUTION

CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND

     NO. 71-5144.  ARGUED APRIL 20, 1972-- DECIDED JUNE 19, 1972 


PETITIONER, WHO WAS GIVEN A FIVE-YEAR SENTENCE, WAS REFERRED UNDER AN
EX PARTE ORDER TO THE PATUXENT INSTITUTION FOR EXAMINATION TO DETERMINE
WHETHER HE SHOULD BE COMMITTED FOR AN INDEFINITE TERM AS A DEFECTIVE
DELINQUENT.  IN THIS PROCEEDING FOR POST-CONVICTION RELIEF HE
CHALLENGES HIS CONFINEMENT AFTER EXPIRATION OF THAT SENTENCE AS
VIOLATIVE OF DUE PROCESS.  RESPONDENT CONTENDS THAT PETITIONER'S
CONTINUED CONFINEMENT IS JUSTIFIED UNTIL PETITIONER COOPERATES WITH THE
EXAMINING PSYCHIATRISTS AND THUS FACILITATES AN ASSESSMENT OF HIS
CONDITION.  THE TRIAL COURT DENIED RELIEF, HOLDING THAT A PERSON
CONFINED UNDER MARYLAND'S DEFECTIVE DELINQUENCY LAW MAY BE DETAINED
UNTIL THE STATUTORY PROCEDURES FOR EXAMINATION AND REPORT HAVE BEEN
COMPLETED, REGARDLESS OF WHETHER OR NOT THE CRIMINAL SENTENCE HAS
EXPIRED.  HELD:  IN THE CIRCUMSTANCES OF THIS CASE, IT IS A DENIAL OF
DUE PROCESS TO CONTINUE TO HOLD PETITIONER ON THE BASIS OF AN EX PARTE
ORDER COMMITTING HIM TO OBSERVATION WITHOUT THE PROCEDURAL SAFEGUARDS
COMMENSURATE WITH A LONG-TERM COMMITMENT, JACKSON V. INDIANA, 406 U.S.
715; AND WITHOUT AFFORDING HIM THOSE SAFEGUARDS HIS FURTHER DETENTION
CANNOT BE JUSTIFIED AS ANALOGOUS TO CONFINEMENT FOR CIVIL CONTEMPT OR
FOR ANY OTHER REASON.  PP. 247-252. 

REVERSED. 

MARSHALL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  DOUGLAS,
J., FILED A CONCURRING OPINION, POST, P. 252. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

EDWARD MCNEIL WAS CONVICTED OF TWO ASSAULTS IN 1966, AND SENTENCED
TO FIVE YEARS' IMPRISONMENT.  INSTEAD OF COMMITTING HIM TO PRISON, THE
SENTENCING COURT REFERRED HIM TO THE PATUXENT INSTITUTION FOR
EXAMINATION, TO DETERMINE WHETHER HE SHOULD BE COMMITTED TO THAT
INSTITUTION FOR AN INDETERMINATE TERM UNDER MARYLAND'S DEFECTIVE
DELINQUENCY LAW.  MD. ANN. CODE, ART. 31B (1971).  NO SUCH
DETERMINATION HAS YET BEEN MADE, HIS SENTENCE HAS EXPIRED, AND HIS
CONFINEMENT CONTINUES.  THE STATE CONTENDS THAT HE HAS REFUSED TO
COOPERATE WITH THE EXAMINING PSYCHIATRISTS, THAT THEY HAVE BEEN UNABLE
TO MAKE ANY VALID ASSESSMENT OF HIS CONDITION, AND THAT CONSEQUENTLY HE
MAY BE CONFINED INDEFINITELY UNTIL HE COOPERATES AND THE INSTITUTION
HAS SUCCEEDED IN MAKING ITS EVALUATION.  HE CLAIMS THAT WHEN HIS
SENTENCE EXPIRED, THE STATE LOST ITS POWER TO HOLD HIM, AND THAT HIS
CONTINUED DETENTION VIOLATES HIS RIGHTS UNDER THE FOURTEENTH
AMENDMENT.  WE AGREE. 

        I 

THE MARYLAND DEFECTIVE DELINQUENCY LAW PROVIDES THAT A PERSON
CONVICTED OF ANY FELONY, OR CERTAIN MISDEMEANORS, MAY BE COMMITTED TO
THE PATUXENT INSTITUTION FOR AN INDETERMINATE PERIOD, IF IT IS
JUDICIALLY DETERMINED THAT HE IS A "DEFECTIVE DELINQUENT."  A DEFECTIVE
DELINQUENT IS DEFINED AS 

"AN INDIVIDUAL WHO, BY THE DEMONSTRATION OF PERSISTENT AGGRAVATED
ANTISOCIAL OR CRIMINAL BEHAVIOR, EVIDENCES A PROPENSITY TOWARD CRIMINAL
ACTIVITY, AND WHO IS FOUND TO HAVE EITHER SUCH INTELLECTUAL DEFICIENCY
OR EMOTIONAL UNBALANCE, OR BOTH, AS TO CLEARLY DEMONSTRATE AN ACTUAL
DANGER TO SOCIETY SO AS TO REQUIRE SUCH CONFINEMENT AND TREATMENT, WHEN
APPROPRIATE, AS MAY MAKE IT REASONABLY SAFE FOR SOCIETY TO TERMINATE
THE CONFINEMENT AND TREATMENT."  MD. ANN. CODE, ART. 31B, SEC. 5. 

DEFECTIVE-DELINQUENCY PROCEEDINGS ARE ORDINARILY INSTITUTED
IMMEDIATELY AFTER CONVICTION AND SENTENCING; THEY MAY ALSO BE
INSTITUTED AFTER THE DEFENDANT HAS SERVED PART OF HIS PRISON TERM. 
SECS. 6(B), 6(C).  /1/  IN EITHER EVENT, THE PROCESS BEGINS WITH A
COURT ORDER COMMITTING THE PRISONER TO PATUXENT FOR A PSYCHIATRIC
EXAMINATION.  SECS. 6(B), 6(D).  THE INSTITUTION IS REQUIRED TO SUBMIT
ITS REPORT TO THE COURT WITHIN A FIXED PERIOD OF TIME.  SEC. 7(A).  /2/
IF THE REPORT RECOMMENDS COMMITMENT, THEN A HEARING MUST BE PROMPTLY
HELD, WITH A JURY TRIAL IF REQUESTED BY THE PRISONER, TO DETERMINE
WHETHER HE SHOULD BE COMMITTED AS A DEFECTIVE DELINQUENT.  SEC. 8.  IF
HE IS SO COMMITTED, THEN THE COMMITMENT OPERATES TO SUSPEND THE PRISON
SENTENCE PREVIOUSLY IMPOSED.  SEC. 9(B). 

IN MUREL V. BALTIMORE CITY CRIMINAL COURT, POST, P. 355, SEVERAL
PRISONERS WHO HAD BEEN COMMITTED AS DEFECTIVE DELINQUENTS SOUGHT TO
CHALLENGE VARIOUS ASPECTS OF THE CRITERIA AND PROCEDURES THAT RESULTED
IN THEIR COMMITMENT; WE GRANTED CERTIORARI IN THAT CASE TOGETHER WITH
THIS ONE, IN ORDER TO CONSIDER TOGETHER THESE CHALLENGES TO THE
MARYLAND STATUTORY SCHEME.  FOR VARIOUS REASONS WE DECLINE TODAY TO
REACH THOSE QUESTIONS, SEE MUREL, SUPRA.  BUT EDWARD MCNEIL PRESENTS A
MUCH MORE STARK AND SIMPLE CLAIM.  HE HAS NEVER BEEN COMMITTED AS A
DEFECTIVE DELINQUENT, AND THUS HE HAS NO CAUSE TO CHALLENGE THE
CRITERIA AND PROCEDURES THAT CONTROL A DEFECTIVE-DELINQUENCY HEARING. 
HIS CONFINEMENT RESTS WHOLLY ON THE ORDER COMMITTING HIM FOR
EXAMINATION, IN PREPARATION FOR SUCH A COMMITMENT HEARING.  THAT ORDER
WAS MADE, NOT ON THE BASIS OF AN ADVERSARY HEARING, BUT ON THE BASIS OF
AN EX PARTE JUDICIAL DETERMINATION THAT THERE WAS "REASONABLE CAUSE TO
BELIEVE THAT THE DEFENDANT MAY BE A DEFECTIVE DELINQUENT."  /3/
PETITIONER DOES NOT CHALLENGE IN THIS COURT THE POWER OF THE SENTENCING
COURT TO ISSUE SUCH AN ORDER IN THE FIRST INSTANCE, BUT HE CONTENDS
THAT THE STATE'S POWER TO HOLD HIM ON THE BASIS OF THAT ORDER HAS
EXPIRED.  HE FILED A PETITION FOR STATE POST-CONVICTION RELIEF ON THIS
GROUND, INTER ALIA, PURSUANT TO MD. ANN. CODE, ART. 27, SEC. 645A.  THE
TRIAL COURT DENIED RELIEF, HOLDING THAT "(A) PERSON REFERRED TO
PATUXENT UNDER SECTION 6, ARTICLE 31B FOR THE PURPOSE OF DETERMINING
WHETHER OR NOT HE IS A DEFECTIVE DELINQUENT MAY BE DETAINED IN PATUXENT
UNTIL THE PROCEDURES FOR SUCH DETERMINATION HAVE BEEN COMPLETED
REGARDLESS OF WHETHER OR NOT THE CRIMINAL SENTENCE HAS EXPIRED."  APP.
35-36.  THE COURT OF APPEALS OF MARYLAND DENIED LEAVE TO APPEAL.  APP.
37-38.  WE GRANTED CERTIORARI, 404 U.S. 999 (1971). 

        II 

THE STATE OF MARYLAND ASSERTS THE POWER TO CONFINE PETITIONER
INDEFINITELY, WITHOUT EVER OBTAINING A JUDICIAL DETERMINATION THAT SUCH
CONFINEMENT IS WARRANTED.  RESPONDENT ADVANCES SEVERAL DISTINCT
ARGUMENTS IN SUPPORT OF THAT CLAIM. 

A. FIRST, RESPONDENT CONTENDS THAT PETITIONER HAS BEEN COMMITTED
MERELY FOR OBSERVATION, AND THAT A COMMITMENT FOR OBSERVATION NEED NOT
BE SURROUNDED BY THE PROCEDURAL SAFEGUARDS (SUCH AS AN ADVERSARY
HEARING) THAT ARE APPROPRIATE FOR A FINAL DETERMINATION OF DEFECTIVE
DELINQUENCY.  WERE THE COMMITMENT FOR OBSERVATION LIMITED IN DURATION
TO A BRIEF PERIOD, THE ARGUMENT MIGHT HAVE SOME FORCE.  BUT PETITIONER
HAS BEEN COMMITTED "FOR OBSERVATION" FOR SIX YEARS, AND ON RESPONDENT'S
THEORY OF HIS CONFINEMENT THERE IS NO REASON TO BELIEVE IT LIKELY THAT
HE WILL EVER BE RELEASED.  A CONFINEMENT THAT IS IN FACT INDETERMINATE
CANNOT REST ON PROCEDURES DESIGNED TO AUTHORIZE A BRIEF PERIOD OF
OBSERVATION. 

WE RECENTLY REJECTED A SIMILAR ARGUMENT IN JACKSON V. INDIANA, 406
U.S. 715 (1972), WHEN THE STATE SOUGHT TO CONFINE INDEFINITELY A
DEFENDANT WHO WAS MENTALLY INCOMPETENT TO STAND TRIAL ON HIS CRIMINAL
CHARGES.  THE STATE SOUGHT TO CHARACTERIZE THE COMMITMENT AS TEMPORARY,
AND ON THAT BASIS TO JUSTIFY REDUCED SUBSTANTIVE AND PROCEDURAL
SAFEGUARDS.  WE HELD THAT BECAUSE THE COMMITMENT WAS PERMANENT IN ITS
PRACTICAL EFFECT, IT REQUIRED SAFEGUARDS COMMENSURATE WITH A LONG-TERM
COMMITMENT.  ID., AT 723-730.  THE OTHER HALF OF THE JACKSON ARGUMENT
IS EQUALLY RELEVANT HERE.  IF THE COMMITMENT IS PROPERLY REGARDED AS A
SHORT-TERM CONFINEMENT WITH A LIMITED PURPOSE, AS THE RESPONDENT
SUGGESTS, THEN LESSER SAFEGUARDS MAY BE APPROPRIATE, BUT BY THE SAME
TOKEN, THE DURATION OF THE CONFINEMENT MUST BE STRICTLY LIMITED.  "(DUE
PROCESS REQUIRES THAT THE NATURE AND DURATION OF COMMITMENT BEAR SOME
REASONABLE RELATION TO THE PURPOSE FOR WHICH THE INDIVIDUAL IS
COMMITTED."  ID., AT 738.  JUST AS THAT PRINCIPLE LIMITS THE
PERMISSIBLE LENGTH OF A COMMITMENT ON ACCOUNT OF INCOMPETENCE TO STAND
TRIAL, SO IT ALSO LIMITS THE PERMISSIBLE LENGTH OF A COMMITMENT "FOR
OBSERVATION."  WE NEED NOT SET A PRECISE TIME LIMIT HERE; IT IS
NOTEWORTHY, HOWEVER, THAT THE MARYLAND STATUTE ITSELF LIMITS THE
OBSERVATION PERIOD TO A MAXIMUM OF SIX MONTHS.  WHILE THE STATE COURTS
HAVE APPARENTLY CONSTRUED THE STATUTE TO PERMIT EXTENSIONS OF TIME, SEE
N. 2, SUPRA, NEVERTHELESS THE INITIAL LEGISLATIVE JUDGMENT PROVIDES A
USEFUL BENCHMARK.  IN THIS CASE IT IS SUFFICIENT TO NOTE THAT THE
PETITIONER HAS BEEN CONFINED FOR SIX YEARS, AND THERE IS NO BASIS FOR
ANTICIPATING THAT HE WILLEVER BE EASIER TO EXAMINE THAN HE IS TODAY. 
IN THESE CIRCUMSTANCES, IT IS A DENIAL OF DUE PROCESS TO CONTINUE TO
HOLD HIM ON THE BASIS OF AN EX PARTE ORDER COMMITTING HIM FOR
OBSERVATION. 

B. A SECOND ARGUMENT ADVANCED BY THE RESPONDENT RELIES ON THE CLAIM
THAT PETITIONER HIMSELF PREVENTED THE STATE FROM HOLDING A HEARING ON
HIS CONDITION.  RESPONDENT CONTENDS THAT, BY REFUSING TO TALK TO THE
PSYCHIATRISTS, PETITIONER HAS PREVENTED THEM FROM EVALUATING HIM, AND
HAS MADE IT IMPOSSIBLE FOR THE STATE TO GO FORWARD WITH EVIDENCE AT A
HEARING.  THUS, IT IS ARGUED, HIS CONTINUED CONFINEMENT IS ANALOGOUS TO
CIVIL CONTEMPT; HE CAN TERMINATE THE CONFINEMENT AND BRING ABOUT A
HEARING AT ANY TIME BY TALKING TO THE EXAMINING PSYCHIATRISTS, AND THE
STATE HAS THE POWER TO INDUCE HIS COOPERATION BY CONFINING HIM. 

PETITIONER CLAIMS THAT HE HAS A RIGHT UNDER THE FIFTH AMENDMENT TO
WITHHOLD COOPERATION, A CLAIM WE NEED NOT CONSIDER HERE.  BUT PUTTING
THAT CLAIM TO ONE SIDE, THERE IS NEVERTHELESS A FATAL FLAW IN THE
RESPONDENT'S ARGUMENT.  FOR IF CONFINEMENT IS TO REST ON A THEORY OF
CIVIL CONTEMPT, THEN DUE PROCESS REQUIRES A HEARING TO DETERMINE
WHETHER PETITIONER HAS IN FACT BEHAVED IN A MANNER THAT AMOUNTS TO
CONTEMPT.  AT SUCH A HEARING IT COULD BE ASCERTAINED WHETHER
PETITIONER'S CONDUCT IS WILLFUL, OR WHETHER IT IS A MANIFESTATION OF
MENTAL ILLNESS, FOR WHICH HE CANNOT FAIRLY BE HELD RESPONSIBLE. 
ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962).  CIVIL CONTEMPT IS
COERCIVE IN NATURE, AND CONSEQUENTLY THERE IS NO JUSTIFICATION FOR
CONFINING ON A CIVIL CONTEMPT THEORY A PERSON WHO LACKS THE PRESENT
ABILITY TO COMPLY.  MAGGIO V. ZEITZ, 333 U.S. 56 (1948).  MOREOVER, A
HEARING WOULD PROVIDE THE APPROPRIATE FORUM FOR RESOLUTION OF
PETITIONER'S FIFTH AMENDMENT CLAIM.  FINALLY, IF THE PETITIONER'S
CONFINEMENT WERE EXPLICITLY PREMISED ON A FINDING OF CONTEMPT, THEN IT
WOULD BE APPROPRIATE TO CONSIDER WHAT LIMITATIONS THE DUE PROCESS
CLAUSE PLACES ON THE CONTEMPT POWER.  THE PRECISE CONTOURS OF THAT
POWER NEED NOT BE TRACED HERE.  IT IS ENOUGH TO NOTE THAT PETITIONER
HAS BEEN CONFINED, POTENTIALLY FOR LIFE, ALTHOUGH HE HAS NEVER BEEN
DETERMINED TO BE IN CONTEMPT BY A PROCEDURE THAT COMPORTS WITH DUE
PROCESS.  THE CONTEMPT ANALOGY CANNOT JUSTIFY THE STATE'S FAILURE TO
PROVIDE A HEARING OF ANY KIND. 

C. FINALLY, RESPONDENT SUGGESTS THAT PETITIONER IS PROBABLY A
DEFECTIVE DELINQUENT, BECAUSE MOST NONCOOPERATORS ARE.  HENCE, IT IS
ARGUED, HIS CONFINEMENT RESTS NOT ONLY ON THE PURPOSES OF OBSERVATION,
AND OF PENALIZING CONTEMPT, BUT ALSO ON THE UNDERLYING PURPOSES OF THE
DEFECTIVE DELINQUENCY LAW.  BUT THAT ARGUMENT PROVES TOO MUCH.  FOR IF
THE PATUXENT STAFF MEMBERS WERE PREPARED TO CONCLUDE, ON THE BASIS OF
PETITIONER'S SILENCE AND THEIR OBSERVATIONS OF HIM OVER THE YEARS, THAT
PETITIONER IS A DEFECTIVE DELINQUENT, THEN IT IS NOT TRUE THAT HE HAS
PREVENTED THEM FROM EVALUATING HIM.  ON THAT THEORY, THEY HAVE LONG
BEEN READY TO MAKE THEIR REPORT TO THE COURT, AND THE HEARING ON
DEFECTIVE DELINQUENCY COULD HAVE GONE FORWARD. 

        III 

PETITIONER IS PRESENTLY CONFINED IN PATUXENT WITHOUT ANY LAWFUL
AUTHORITY TO SUPPORT THAT CONFINEMENT.  HIS SENTENCE HAVING EXPIRED, HE
IS NO LONGER WITHIN THE CLASS OF PERSONS ELIGIBLE FOR COMMITMENT TO THE
INSTITUTION AS A DEFECTIVE DELINQUENT.  ACCORDINGLY, HE IS ENTITLED TO
BE RELEASED.  THE JUDGMENT BELOW IS REVERSED, AND THE MANDATE SHALL
ISSUE FORTHWITH. 

              REVERSED. 

/1/  BUT NOT AFTER HE HAS SERVED ALL OF IT.  THE STATUTE HAS ALWAYS
PROVIDED THAT NO EXAMINATION MAY BE ORDERED OR HELD IF THE PERSON HAS
BEEN RELEASED FROM CUSTODY; SINCE 1971 IT HAS ALSO PROHIBITED THE
EXAMINATION IF THE PERSON IS WITHIN SIX MONTHS OF THE EXPIRATION OF
SENTENCE, SEC. 6(C), AS AMENDED IN 1971.  THE STATE ASSERTS THAT ABOUT
98% OF THE REFERRALS TO PATUXENT ARE MADE IMMEDIATELY AFTER
CONVICTION.  TR. OF ORAL ARG. 27; SEE RESPONDENT'S BRIEF 82 N. 33. 

/2/  THE STATUTE ORIGINALLY REQUIRED THE REPORT TO BE SUBMITTED
WITHIN SIX MONTHS, OR BEFORE EXPIRATION OF SENTENCE, WHICHEVER LATER
OCCURS.  SINCE 1971, IT HAS REQUIRED A REPORT WITHIN SIX MONTHS, OR
THREE MONTHS BEFORE EXPIRATION OF SENTENCE, WHICHEVER FIRST OCCURS. 
SEC. 7(A), AS AMENDED IN 1971.  THE STATE COURTS HAVE CONSTRUED THE
STATUTE TO PERMIT EXTENSION OF THE ALLOWABLE TIME, HOWEVER, IN THE CASE
OF A NONCOOPERATIVE DEFENDANT WHO RESISTS EXAMINATION.  STATE V.
MUSGROVE, 241 MD. 521, 217 A.2D 247 (1966); MULLEN V. DIRECTOR, 6
MD.APP.  120, 250 A.2D 281 (1969). 

/3/  BRIEF FOR PETITIONER 6 N. 5; SEE ART. 31B, SEC. 6(B):  REQUEST
FOR EXAMINATION IS MADE TO COURT "ON ANY KNOWLEDGE OR SUSPICION OF THE
PRESENCE OF DEFECTIVE DELINQUENCY IN SUCH PERSON."  IT APPEARS THAT IN
THIS CASE THE TRIAL COURT ISSUED THE ORDER SUA SPONTE; PRIOR TO
SENTENCING, THE COURT HAD ORDERED A PSYCHIATRIC EVALUATION BY ITS OWN
MEDICAL OFFICER, WHO IN TURN RECOMMENDED REFERRAL TO PATUXENT FOR
FURTHER EVALUATION AND TREATMENT. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THIS IS AN ACTION IN THE MARYLAND COURTS FOR POST-CONVICTION RELIEF
WHICH WAS DENIED, WITH NO COURT MAKING A REPORT OF ITS DECISION.  THE
CASE IS HERE ON A PETITION FOR WRIT OF CERITORARI, WHICH WE GRANTED. 
404 U.S. 999.  I CONCUR IN REVERSING THE JUDGMENT BELOW. 

MCNEIL WAS TRIED AND CONVICTED IN A MARYLAND COURT FOR ASSAULT ON A
PUBLIC OFFICER AND FOR ASSAULT WITH INTENT TO RAPE.  HE TOOK THE STAND
AND DENIED HE HAD COMMITTED THE OFFENSES.  HE HAD HAD NO PRIOR CRIMINAL
RECORD.  THE SENTENCING JUDGE ASKED FOR A PSYCHIATRIC EVALUATION OF THE
ACCUSED, THOUGH NEITHER SIDE AT THE TRIAL HAD RAISED OR SUGGESTED ANY
PSYCHIATRIC ISSUES.  A MEDICAL OFFICER EXAMINED HIM AND RECOMMENDED
THAT HE BE CONSIDERED FOR EVALUATION AND TREATMENT AT PATUXENT
INSTITUTION, A STATE PSYCHIATRIC AGENCY. 

THE COURT SENTENCED MCNEIL TO "NOT MORE THAN FIVE YEARS" TO PRISON
IN HAGERSTOWN /1/  AND, WITHOUT MODIFYING OR SUSPENDING THAT SENTENCE,
ORDERED HIM REFERRED TO PATUXENT.  UNDER MARYLAND LAW A DEFENDANT
CONVICTED OF ANY FELONY OR CERTAIN MISDEMEANORS MAY BE REFERRED TO
PATUXENT FOR DETERMINATION WHETHER HE IS A "DEFECTIVE DELINQUENT."  MD.
ANN. CODE, ART. 31B (1971).  A "DEFECTIVE DELINQUENT" IS DEFINED IN
ART. 31B, SEC. 5, AS "AN INDIVIDUAL WHO, BY THE DEMONSTRATION OF
PERSISTENT AGGRAVATED ANTISOCIAL OR CRIMINAL BEHAVIOR, EVIDENCES A
PROPENSITY TOWARD CRIMINAL ACTIVITY, AND WHO IS FOUND TO HAVE EITHER
SUCH INTELLECTUAL DEFICIENCY OR EMOTIONAL UNBALANCE, OR BOTH, AS TO
CLEARLY DEMONSTRATE AN ACTUAL DANGER TO SOCIETY SO AS TO REQUIRE SUCH
CONFINEMENT AND TREATMENT, WHEN APPROPRIATE, AS MAY MAKE IT REASONABLY
SAFE FOR SOCIETY TO TERMINATE THE CONFINEMENT AND TREATMENT."     UNDER
ART. 31B, THE STAFF-- WHICH INCLUDES A PSYCHIATRIST, A PSYCHOLOGIST,
AND A PHYSICIAN-- SHALL EXAMINE THE PERSON AND "STATE THEIR FINDINGS"
AS TO DEFECTIVE DELINQUENCY IN A WRITTEN REPORT TO THE COURT.  ART.
31B, SEC. 7(A).  AND IT IS PROVIDED THAT ONCE TRANSFERRED TO PATUXENT,
THE PERSON IN QUESTION SHALL REMAIN THERE "UNTIL SUCH TIME AS THE
PROCEDURES . . . FOR THE DETERMINATION OF WHETHER OR NOT SAID PERSON IS
A DEFECTIVE DELINQUENT HAVE BEEN COMPLETED, WITHOUT REGARD TO WHETHER
OR NOT THE CRIMINAL SENTENCE TO WHICH HE WAS LAST SENTENCED HAS
EXPIRED."  /2/  ART. 31B, SEC. 6(E) (SUPP. 1971). 

THE EXAMINATION NORMALLY ENTAILS PSYCHIATRIC INTERVIEWS AND
EVALUATION, PSYCHOLOGICAL TESTS, SOCIOLOGICAL AND SOCIAL WORK STUDIES,
AND REVIEW OF PAST HISTORY AND RECORDS, INCLUDING POLICE, JUVENILE,
PENAL, AND HOSPITAL RECORDS.  PERSONAL INTERVIEWS INCLUDE A SERIES OF
QUESTIONS TO ELICIT AND TO DETERMINE THE PAST CRIMINAL RECORD, AND
ANTISOCIAL AND CRIMINAL BEHAVIOR OF THE INDIVIDUAL. 

IF THE REPORT SHOWS THAT HE SHOULD NOT BE CLASSIFIED AS A DEFECTIVE
DELINQUENT, HE IS RETAINED IN CUSTODY UNDER HIS ORIGINAL SENTENCE WITH
FULL CREDIT GIVEN FOR THE TIME CONFINED AT PATUXENT.  ART. 31B, SEC.
7(A) (SUPP. 1971).  IF THE REPORT SAYS THAT HE SHOULD BE CLASSIFIED AS
A DEFECTIVE DELINQUENT, A HEARING IS HELD, AT WHICH THE DEFENDANT IS
ENTITLED TO COUNSEL AND A TRIAL BY JURY.  ART. 31B, SEC. 8. 

MCNEIL, THOUGH CONFINED AT PATUXENT BEYOND THE TERM OF FIVE YEARS
FOR WHICH HE WAS SENTENCED, HAS NEVER HAD SUCH A HEARING, FOR HE HAS
NEVER BEEN DECLARED A "DEFECTIVE DELINQUENT."  /3/  HE HAS NOT BEEN SO
DECLARED AND ON THE OTHER HAND HAS NOT BEEN CLEARED, BECAUSE HE HAS
REFUSED ON AT LEAST 15 SEPARATE OCCASIONS TO SUBMIT TO THE PSYCHIATRIC
TESTS AND QUESTIONS.  NOR HAS HE RECEIVED IN THE INTERIM ANY
REHABILITATIVE TREATMENT OR TRAINING.  THE STATE, INDEED, INTENDS TO
KEEP HIM THERE INDEFINITELY, AS LONG AS HE REFUSES TO SUBMIT TO
PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATIONS.  /4/ 

MCNEIL'S REFUSAL TO SUBMIT TO THAT QUESTIONING IS NOT QUIXOTIC; IT
IS BASED ON HIS FIFTH AMENDMENT RIGHT TO BE SILENT.  MCNEIL REMAINS
CONFINED WITHOUT ANY HEARING WHATSOEVER AS TO WHETHER HE HAS A
PROPENSITY TOWARD CRIMINAL ACTIVITY AND WITHOUT ANY HOPE OF HAVING A
HEARING UNLESS HE SURRENDERS HIS RIGHT AGAINST SELF-INCRIMINATION. 
/5/ 

THE FIFTH AMENDMENT PROHIBITION AGAINST COMPULSORY SELF
INCRIMINATION IS APPLICABLE TO THE STATES BY REASON OF THE FOURTEENTH. 
MALLOY V. HOGAN, 378 U.S. 1.  THE PROTECTION EXTENDS TO REFUSAL TO
ANSWER QUESTIONS WHERE THE PERSON "HAS REASONABLE CAUSE TO APPREHEND
DANGER FROM A DIRECT ANSWER."  HOFFMAN V. UNITED STATES, 341 U.S. 479,
486; SEE SPEVACK V. KLEIN, 385 U.S. 511.  THE QUESTIONING OF MCNEIL IS
IN A SETTING AND HAS A GOAL PREGNANT WITH BOTH POTENTIAL AND IMMEDIATE
DANGER.  TO BE LABELED A "DEFECTIVE DELINQUENT," MCNEIL MUST HAVE
DEMONSTRATED A "PERSISTENT AGGRAVATED ANTISOCIAL OR CRIMINAL BEHAVIOR"
AND "A PROPENSITY TOWARD CRIMINAL ACTIVITY."  ART. 31B, SEC. 5. 

MCNEIL WAS REPEATEDLY INTERROGATED NOT ONLY ABOUT THE CRIME FOR
WHICH HE WAS CONVICTED BUT FOR MANY OTHER ALLEGED ANTISOCIAL INCIDENTS
GOING BACK TO HIS SOPHOMORE YEAR IN HIGH SCHOOL.  ONE STAFF MEMBER
AFTER INTERVIEWING MCNEIL REPORTED:  "HE ADAMANTLY AND VEHEMENTLY
DENIES, DESPITE THE POLICE REPORTS, THAT HE WAS INVOLVED IN THE
OFFENSE"; "FURTHER QUESTIONING REVEALED THAT HE HAD STOLEN SOME SHOES
BUT HE INSISTED THAT HE DID NOT KNOW THAT THEY WERE STOLEN . . . ";
"BUT IN THE TENTH GRADE HE WAS CAUGHT TAKING SOME MILK AND COOKIES FROM
THE CAFETERIA"; "HE CONSISTENTLY DENIES HIS GUILT IN ALL THESE
OFFENSES"; "HE INSISTED THAT HE WAS NOT PRESENT AT THE PURSE
SNATCHING"; "HE WAS ADAMANT IN INSISTING ON THIS VERSION OF THE OFFENSE
DESPITE THE POLICE REPORT WHICH WAS IN THE BRIEF AND WHICH I HAD
AVAILABLE AND DISCUSSED WITH HIM"; "HE CONTINUED HIS DENIAL INTO A
CONSIDERATION OF A JUVENILE OFFENSE . . . "; "HE DENIES THE USE OF ALL
DRUGS AND NARCOTICS"; " . . . I EXPLAINED TO HIM THAT IT MIGHT BE OF
SOME HELP TO HIM IF WE COULD UNDERSTAND WHY HE DID SUCH A THING BUT
THIS WAS TO NO AVAIL."  BRIEF FOR PETITIONER 36 N. 43. 

SOME OF THE QUESTIONING OF MCNEIL WAS AT A TIME WHEN HIS CONVICTION
WAS ON DIRECT APPEAL OR WHEN HE WAS SEEKING POST-CONVICTION RELIEF. 
CONCESSIONS OR CONFESSIONS OBTAINED MIGHT BE USEFUL TO THE STATE ON A
RETRIAL OR MIGHT VITIATE POST-CONVICTION RELIEF.  MOREOVER, THE
PRIVILEGE EXTENDS TO EVERY "LINK IN A CHAIN OF EVIDENCE SUFFICIENT TO
CONNECT" THE PERSON WITH A CRIME.  MALLOY V. HOGAN, 378 U.S.,AT 13. 
WHETHER OR NOT A GRANT OF IMMUNITY WOULD GIVE THE NEEDED PROTECTION IN
THIS CONTEXT IS IRRELEVANT, BECAUSE WE ARE ADVISED THAT THERE IS NO
SUCH IMMUNITY UNDER STATE LAWS. 

FINALLY, THE REFUSAL TO ANSWER RESULTS IN SEVERE SANCTIONS, CONTRARY
TO THE CONSTITUTIONAL GUARANTEE. 

FIRST, THE STAFF REFUSES TO DIAGNOSE HIM, NO MATTER HOW MUCH
INFORMATION THEY MAY HAVE, UNLESS HE TALKS.  THE RESULT IS THAT HE
NEVER RECEIVES A HEARING AND REMAINS AT PATUXENT INDEFINITELY. 

SECOND, IF THERE IS NO REPORT ON HIM, HE REMAINS ON THE RECEIVING
TIER INDEFINITELY AND RECEIVES NO TREATMENT. 

THIRD, IF HE TALKS AND A REPORT IS MADE AND HE IS COMMITTED AS A
"DEFECTIVE DELINQUENT," HE IS NO LONGER CONFINED FOR ANY PORTION OF THE
ORIGINAL SENTENCE.  ART. 31B, SEC. 9(B).  IF HE DOES NOT TALK, MCNEIL'S
SENTENCE CONTINUES TO RUN UNTIL IT EXPIRES AND YET HE IS KEPT AT
PATUXENT INDEFINITELY.  WE ARE INDEED ADVISED BY THE RECORD IN THE
MUREL CASE THAT 20% OF PATUXENT INMATES AT THAT TIME WERE SERVING
BEYOND THEIR EXPIRED SENTENCES AND OF THOSE PAROLED BETWEEN 1955 AND
1965, 46% HAD SERVED BEYOND THEIR EXPIRED SENTENCES. 

WHATEVER THE PATUXENT PROCEDURES MAY BE CALLED-- WHETHER CIVIL OR
CRIMINAL-- THE RESULT UNDER THE SELF-INCRIMINATION CLAUSE OF THE FIFTH
AMENDMENT IS THE SAME.  AS WE SAID IN IN RE GAULT, 387 U.S. 1, 49-50,
THERE IS THE THREAT OF SELF-INCRIMINATION WHENEVER THERE IS "A
DEPRIVATION OF LIBERTY;" AND THERE IS SUCH A DEPRIVATION WHATEVER THE
NAME OF THE INSTITUTION, IF A PERSON IS HELD AGAINST HIS WILL. 

IT IS ELEMENTARY THAT THERE IS A DENIAL OF DUE PROCESS WHEN A PERSON
IS COMMITTED OR, AS HERE, HELD WITHOUT A HEARING AND OPPORTUNITY TO BE
HEARD.  SPECHT V. PATTERSON, 386 U.S. 605; HUMPHREY V. CADY, 405 U.S.
504. 

MCNEIL MUST BE DISCHARGED FORTHWITH. 

/1/  UNDER MARYLAND LAW THAT SENTENCE WAS SUBJECT TO STATUTORY
REDUCTIONS FOR GOOD BEHAVIOR, INDUSTRIAL OR AGRICULTURAL WORK, AND
SATISFACTORY PROGRESS IN EDUCATION AND VOCATIONAL COURSES.  MD. ANN.
CODE, ART. 27, SEC. 700 (1971). 

MCNEIL WOULD HAVE BEEN ELIGIBLE FOR PAROLE AFTER ONE-FOURTH OF THE
TERM OR A LITTLE OVER ONE YEAR. 

/2/  AT THE TIME OF MCNEIL'S REFERRAL, THE ACT REQUIRED THAT THE
REPORT BE FILED NO LATER THAN SIX MONTHS FROM THE DATE HE WAS
TRANSFERRED TO PATUXENT OR BEFORE EXPIRATION OF HIS SENTENCE, WHICHEVER
LAST OCCURRED.  MD. ANN. CODE, ART. 31B, SEC. 7(A) (1957 ED., SUPP.
1966).  AN AMENDMENT EFFECTIVE JULY 1, 1971, REQUIRED THAT THE REPORT
BE FILED NO LATER THAN SIX MONTHS FROM THE DATE HE WAS TRANSFERRED TO
PATUXENT OR THREE MONTHS BEFORE EXPIRATION OF HIS SENTENCE, WHICHEVER
OCCURS FIRST.  ART. 31B, SEC. 7(A) (SUPP. 1971). 

/3/  DETENTION BEYOND THE EXPIRATION OF COURT-IMPOSED SENTENCES
OCCURS IN COMMUNIST CHINA WHERE "PUBLIC SECURITY ORGANS (HAVE) THE
AUTHORITY TO IMPOSE AS WELL AS ADMINISTER PUNISHMENT" AND "THE
DISCRETIONARY POWER TO EXTEND THE DURATION OF IMPRISONMENT BEYOND THE
ORIGINAL SENTENCES."  SHAO-CHUAN LENG, JUSTICE IN COMMUNIST CHINA 34
(1967). 

/4/  IN THE DISTRICT COURT PROCEEDINGS IN MUREL V. BALTIMORE CITY
CRIMINAL COURT, POST, P. 355, DR. BOSLOW, THE DIRECTOR OF PATUXENT,
TESTIFIED: 

"(THE COURT) . . . TAKE THE CASE OF A PERSON WHO IS REFERRED FOR
DIAGNOSIS AND HE FAILS, LET US SAY, 100 PER CENT, TO COOPERATE; HE
WON'T TALK TO ANYBODY, HE WON'T UNDERGO ANY TESTS, HE WON'T
PARTICIPATE, THOUGH I DON'T THINK HE GETS GROUP THERAPY. 

"(DR. BOSLOW) NO, SIR. 

"(THE COURT) BUT HE WILL DO ABSOLUTELY NOTHING AND WILL TAKE NO
ADVANTAGE OF WHATEVER OPPORTUNITY IF ANY THERE MAY BE. 

"HE, THEREFORE, ASSUMING THAT THE LAW IS VALID, AND ASSUMING THAT
THE ADMINISTRATION IN THAT RESPECT IS SUPPORTABLE, COULD HE REMAIN
THERE INDEFINITELY UNCLASSIFIED?  IS THAT CORRECT? 

"(DR. BSOLOW) UNDER THE PRESENT STATE OF THINGS, YES." 

/5/  AS STATED IN A PROVOCATIVE AND SEARCHING STUDY IN VIRGINIA: 

"CERTAINLY, A PRISONER IS NOT ENTITLED TO ALL THE CONSTITUTIONAL
RIGHTS ENJOYED BY FREE CITIZENS, BUT THE BURDEN OF SHOWING WHAT
RESTRICTIONS ARE NECESSARY FOR THE PRESERVATION OF PRISON ORDER SHOULD
FALL UPON PRISON OFFICIALS.  WIDESPREAD, SWEEPING DENIALS OF FREEDOM
SHOULD NOT BE TOLERATED.  IDEALLY, THE LEGISLATIVE AND EXECUTIVE
BRANCHES OF GOVERNMENT SHOULD DECIDE THE EXTENT TO WHICH LIBERTY MUST
BE DENIED.  NO ORGAN OF GOVERNMENT IS BETTER SUITED THAN THE
LEGISLATURE TO CONSIDER THE PENOLOGICAL DEVELOPMENTS OF THE LAST FEW
DECADES IN ORDER TO DETERMINE THE EXTENT TO WHICH RESTRICTIVE PRACTICES
ARE WARRANTED.  BUT AFTER LEGISLATIVE COMMAND OR IN ITS ABSENCE, THE
COURTS MUST DECIDE WHETHER THE BALANCE OF COMPETING INTERESTS EFFECTED
BY LEGISLATIVE COMPROMISE OR EXECUTIVE FIAT COMPORTS WITH SPECIFIC
CONSTITUTIONAL GUARANTEES AND TRADITIONAL NOTIONS OF DUE PROCESS.  IN
THIS CONTEXT THE 'HANDS-OFF DOCTRINE' HAS NO PLACE.  THE JUDICIARY
FUNCTIONS AS MORE THAN A FINAL ARBITER; IT HAS A RESPONSIBILITY FOR
EDUCATING THE PUBLIC AND, WHERE IT FAILS TO ACT, IT FUNCTIONS TO
LEGITIMIZE THE STATUS QUO.  THE SIMPLE FAILURE OF THE COURTS TO REVIEW
PRISON CONDITIONS BLUNTS THE SUCCESS OF IMPORTANT CONSTITUTIONAL
INQUIRIES, IMPEDES THE FLOW OF INFORMATION AND ENCOURAGES ABUSE." 
HIRSCHKOP & MILLEMANN, THE UNCONSTITUTIONALITY OF PRISON LIFE, 55
VA.L.REV.  795, 835-837 (1969). 

E. BARRETT PRETTYMAN, JR., BY APPOINTMENT OF THE COURT, 404 U.S.
1057, ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE
PETER F. ROUSSELOT AND RICHARD B. RUGE. 

HENRY R. LORD, DEPUTY ATTORNEY GENERAL OF MARYLAND, ARGUED THE CAUSE
FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE FRANCIS B. BURCH, ATTORNEY
GENERAL, AND EDWARD F. BORGERDING, DONALD R. STUTMAN, JOSEF ROSENBLATT,
AND HARRY A. E. TAYLOR, ASSISTANT ATTORNEYS GENERAL. 
..END :












FLOOD V. KUHN, 407 U.S. 258 


       FLOOD V. KUHN ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 71-32.  ARGUED MARCH 20, 1972-- DECIDED JUNE 19, 1972 


PETITIONER, A PROFESSIONAL BASEBALL PLAYER "TRADED" TO ANOTHER CLUB
WITHOUT HIS PREVIOUS KNOWLEDGE OR CONSENT, BROUGHT THIS ANTITRUST SUIT
AFTER BEING REFUSED THE RIGHT TO MAKE HIS OWN CONTRACT WITH ANOTHER
MAJOR LEAGUE TEAM, WHICH IS NOT PERMITTED UNDER THE RESERVE SYSTEM. 
THE DISTRICT COURT RENDERED JUDGMENT IN FAVOR OF RESPONDENTS, AND THE
COURT OF APPEALS AFFIRMED.  HELD:  THE LONG-STANDING EXEMPTION OF
PROFESSIONAL BASEBALL FROM THE ANTITRUST LAWS, FEDERAL BASEBALL CLUB V.
NATIONAL LEAGUE, 259 U.S. 200 (1922); TOOLSON V. NEW YORK YANKEES,
INC., 346 U.S. 356 (1953), IS AN ESTABLISHED ABERRATION, IN THE LIGHT
OF THE COURT'S HOLDING THAT OTHER INTERSTATE PROFESSIONAL SPORTS ARE
NOT SIMILARLY EXEMPT, BUT ONE IN WHICH CONGRESS HAS ACQUIESCED, AND
THAT IS ENTITLED TO THE BENEFIT OF STARE DECISIS.  REMOVAL OF THE
RESULTANT INCONSISTENCY AT THIS LATE DATE IS A MATTER FOR LEGISLATIVE,
NOT JUDICIAL, RESOLUTION.  PP. 269-285. 

443 F.2D 264, AFFIRMED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART
AND REHNQUIST, JJ., JOINED, AND IN ALL BUT PART I OF WHICH BURGER,
C.J., AND WHITE, J., JOINED.  BURGER, C.J., FILED A CONCURRING OPINION,
POST, P. 285.  DOUGLAS, J., POST, P. 286, AND MARSHALL, J., POST, P.
288, FILED DISSENTING OPINIONS, IN WHICH BRENNAN, J., JOINED.  POWELL,
J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

FOR THE THIRD TIME IN 50 YEARS THE COURT IS ASKED SPECIFICALLY TO
RULE THAT PROFESSIONAL BASEBALL'S RESERVE SYSTEM IS WITHIN THE REACH OF
THE FEDERAL ANTITRUST LAWS.  /1/  COLLATERAL ISSUES OF STATE LAW AND OF
FEDERAL LABOR POLICY ARE ALSO ADVANCED. 

        I

        THE GAME 

IT IS A CENTURY AND A QUARTER SINCE THE NEW YORK NINE DEFEATED THE
KNICKERBOCKERS 23 TO 1 ON HOBOKEN'S ELYSIAN FIELDS JUNE 19, 1846, WITH
ALEXANDER JAY CARTWRIGHT AS THE INSTIGATOR AND THE UMPIRE.  THE TEAMS
WERE AMATEUR, BUT THE CONTEST MARKED A SIGNIFICANT DATE IN BASEBALL'S
BEGINNINGS.  THAT EARLY GAME LED ULTIMATELY TO THE DEVELOPMENT OF
PROFESSIONAL BASEBALL AND ITS TIGHTLY ORGANIZED STRUCTURE. 

THE CINCINNATI RED STOCKINGS CAME INTO EXISTENCE IN 1869 UPON AN
OUTPOURING OF LOCAL PRIDE.  WITH ONLY ONE CINCINNATIAN ON THE PAYROLL,
THIS PROFESSIONAL TEAM TRAVELED OVER 11,000 MILES THAT SUMMER, WINNING
56 GAMES AND TYING ONE.  SHORTLY THEREAFTER, ON ST. PATRICK'S DAY IN
1871, THE NATIONAL ASSOCIATION OF PROFESSIONAL BASEBALL PLAYERS WAS
FOUNDED AND THE PROFESSIONAL LEAGUE WAS BORN. 

THE ENSUING COLORFUL DAYS ARE WELL KNOWN.  THE ARDENT FOLLOWER AND
THE STUDENT OF BASEBALL KNOW OF GENERAL ABNER DOUBLEDAY; THE FORMATION
OF THE NATIONAL LEAGUE IN 1876; CHICAGO'S SUPREMACY IN THE FIRST YEAR'S
COMPETITION UNDER THE LEADERSHIP OF AL SPALDING AND WITH CAP ANSON AT
THIRD BASE; THE FORMATION OF THE AMERICAN ASSOCIATION AND THEN OF THE
UNION ASSOCIATION IN THE 1880'S; THE INTRODUCTION OF SUNDAY BASEBALL;
INTERLEAGUE WARFARE WITH CUT-RATE ADMISSION PRICES AND PLAYER RAIDING;
THE DEVELOPMENT OF THE RESERVE "CLAUSE"; THE EMERGENCE IN 1885 OF THE
BROTHERHOOD OF PROFESSIONAL BALL PLAYERS, AND IN 1890 OF THE PLAYERS
LEAGUE; THE APPEARANCE OF THE AMERICAN LEAGUE, OR "JUNIOR CIRCUIT," IN
1901, RISING FROM THE MINOR WESTERN ASSOCIATION; THE FIRST WORLD SERIES
IN 1903, DISRUPTION IN 1904, AND THE SERIES' RESUMPTION IN 1905; THE
SHORT-LIVED FEDERAL LEAGUE ON THE MAJORS' SCENE DURING WORLD WAR I
YEARS; THE TROUBLESOME AND DISCOURAGING EPISODE OF THE 1919 SERIES; THE
HOME RUN BALL; THE SHIFTING OF FRANCHISES; THE EXPANSION OF THE
LEAGUES; THE INSTALLATION IN 1965 OF THE MAJOR LEAGUE DRAFT OF
POTENTIAL NEW PLAYERS; AND THE FORMATION OF THE MAJOR LEAGUE BASEBALL
PLAYERS ASSOCIATION IN 1966.  /2/ 

THEN THERE ARE THE MANY NAMES, CELEBRATED FOR ONE REASON OR ANOTHER,
THAT HAVE SPARKED THE DIAMOND AND ITS ENVIRONS AND THAT HAVE PROVIDED
TINDER FOR RECAPTURED THRILLS, FOR REMINISCENCE AND COMPARISONS, AND
FOR CONVERSATION AND ANTICIPATION IN-SEASON AND OFF-SEASON:  TY COBB,
BABE RUTH, TRIS SPEAKER, WALTER JOHNSON, HENRY CHADWICK, EDDIE COLLINS,
LOU GEHRIG, GROVER CLEVELAND ALEXANDER, ROGERS HORNSBY, HARRY HOOPER,
GOOSE GOSLIN, JACKIE ROBINSON, HONUS WAGNER, JOE MCCARTHY, JOHN MCGRAW,
DEACON PHILLIPPE, RUBE MARQUARD, CHRISTY MATHEWSON, TOMMY LEACH, BIG ED
DELAHANTY, DAVY JONES, GERMANY SCHAEFER, KING KELLY, BIG DAN BROUTHERS,
WAHOO SAM CRAWFORD, WEE WILLIE KEELER, BIG ED WALSH, JIMMY AUSTIN, FRED
SNODGRASS, SATCHEL PAIGE, HUGH JENNINGS, FRED MERKLE, IRON MAN
MCGINNITY, THREE-FINGER BROWN, HARRY AND STAN COVELESKI, CONNIE MACK,
AL BRIDWELL, RED RUFFING, AMOS RUSIE, CY YOUNG, SMOKEY JOE WOOD, CHIEF
MEYERS, CHIEF BENDER, BILL KLEM, HANS LOBERT, JOHNNY EVERS, JOE TINKER,
ROY CAMPANELLA, MILLER HUGGINS, RUBE BRESSLER, DAZZY VANCE, EDD ROUSH,
BILL WAMBSGANSS, CLARK GRIFFITH, BRANCH RICKEY, FRANK CHANCE, CAP
ANSON, NAP LAJOIE, SAD SAM JONES, BOB O'FARRELL, LEFTY O'DOUL, BOBBY
VEACH, WILLIE KAMM, HEINIE GROH, LLOYD AND PAUL WANER, STUFFY MCINNIS,
CHARLES COMISKEY, ROGER BRESNAHAN, BILL DICKEY, ZACK WHEAT, GEORGE
SISLER, CHARLIE GEHRINGER, EPPA RIXEY, HARRY HEILMANN, FRED CLARKE,
DIZZY DEAN, HANK GREENBERG, PIE TRAYNOR, RUBE WADDELL, BILL TERRY, CARL
HUBBELL, OLD HOSS RADBOURNE, MOE BERG, RABBIT MARANVILLE, JIMMIE FOXX,
LEFTY GROVE.  /3/  THE LIST SEEMS ENDLESS. 

AND ONE RECALLS THE APPROPRIATE REFERENCE TO THE "WORLD SERIOUS,"
ATTRIBUTED TO RING LARDNER, SR.; ERNEST L. THAYER'S "CASEY AT THE BAT";
/4/  THE RING OF "TINKER TO EVERS TO CHANCE"; /5/  AND ALL THE OTHER
HAPPENINGS, HABITS, AND SUPERSTITIONS ABOUT AND AROUND BASEBALL THAT
MADE IT THE "NATIONAL PASTIME" OR, DEPENDING UPON THE POINT OF VIEW,
"THE GREAT AMERICAN TRAGEDY."  /6/

        II

        THE PETITIONER 

THE PETITIONER, CURTIS CHARLES FLOOD, BORN IN 1938, BEGAN HIS MAJOR
LEAGUE CAREER IN 1956 WHEN HE SIGNED A CONTRACT WITH THE CINCINNATI
REDS FOR A SALARY OF $4,000 FOR THE SEASON.  HE HAS NO ATTORNEY OR
AGENT TO ADVISE HIM ON THAT OCCASION.  HE WAS TRADED TO THE ST. LOUIS
CARDINALS BEFORE THE 1958 SEASON.  FLOOD ROSE TO FAME AS A CENTER
FIELDER WITH THE CARDINALS DURING THE YEARS 1958-1969.  IN THOSE 12
SEASONS HE COMPILED A BATTING AVERAGE OF .293.  HIS BEST OFFENSIVE
SEASON WAS 1967 WHEN HE ACHIEVED .335.  HE WAS .301 OR BETTER IN SIX OF
THE 12 ST. LOUIS YEARS.  HE PARTICIPATED IN THE 1964, 1967, AND 1968
WORLD SERIES.  HE PLAYED ERRORLESS BALL IN THE FIELD IN 1966, AND ONCE
ENJOYED 223 CONSECUTIVE ERRORLESS GAMES.  FLOOD HAS RECEIVED SEVEN
GOLDEN GLOVE AWARDS.  HE WAS CO-CAPTAIN OF HIS TEAM FROM 1965-1969.  HE
RANKS AMONG THE 10 MAJOR LEAGUE OUTFIELDERS POSSESSING THE HIGHEST
LIFETIME FIELDING AVERAGES. 

FLOOD'S ST. LOUIS COMPENSATION FOR THE YEARS SHOWN WAS:

  1961 $13,500 (INCLUDING A BONUS FOR SIGNING) 1962 $16,000 1963
$17,500 1964 $23,000 1965

  $35,000 1966 $45,000 1967 $50,000 1968 $72,500 1969 $90,000 THE
FIGURES DO NOT INCLUDE ANY SO-CALLED FRINGE BENEFITS OR WORLD SERIES
SHARES. 

BUT AT THE AGE OF 31, IN OCTOBER 1969, FLOOD WAS TRADED TO THE
PHILADELPHIA PHILLIES OF THE NATIONAL LEAGUE IN A MULTI-PLAYER
TRANSACTION.  HE WAS NOT CONSULTED ABOUT THE TRADE.  HE WAS INFORMED BY
TELEPHONE AND RECEIVED FORMAL NOTICE ONLY AFTER THE DEAL HAD BEEN
CONSUMMATED.  IN DECEMBER HE COMPLAINED TO THE COMMISSIONER OF BASEBALL
AND ASKED THAT HE BE MADE A FREE AGENT AND BE PLACED AT LIBERTY TO
STRIKE HIS OWN BARGAIN WITH ANY OTHER MAJOR LEAGUE TEAM.  HIS REQUEST
WAS DENIED. 

FLOOD THEN INSTITUTED THIS ANTITRUST SUIT /7/  IN JANUARY 1970 IN
FEDERAL COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.  THE DEFENDANTS
(ALTHOUGH NOT ALL WERE NAMED IN EACH CAUSE OF ACTION) WERE THE
COMMISSIONER OF BASEBALL, THE PRESIDENTS OF THE TWO MAJOR LEAGUES, AND
THE 24 MAJOR LEAGUE CLUBS.  IN GENERAL, THE COMPLAINT CHARGED
VIOLATIONS OF THE FEDERAL ANTITRUST LAWS AND CIVIL RIGHTS STATUTES,
VIOLATION OF STATE STATUTES AND THE COMMON LAW, AND THE IMPOSITION OF A
FORM OF PEONAGE AND INVOLUNTARY SERVITUDE CONTRARY TO THE THIRTEENTH
AMENDMENT AND 42 U.S.C. 1994, 18 U.S.C. 1581, AND 29 U.S.C. 102 AND
103.  PETITIONER SOUGHT DECLARATORY AND INJUNCTIVE RELIEF AND TREBLE
DAMAGES. 

FLOOD DECLINED TO PLAY FOR PHILADELPHIA IN 1970, DESPITE A $100,000
SALARY OFFER, AND HE SAT OUT THE YEAR.  AFTER THE SEASON WAS CONCLUDED,
PHILADELPHIA SOLD ITS RIGHTS TO FLOOD TO THE WASHINGTON SENATORS. 
WASHINGTON AND THE PETITIONER WERE ABLE TO COME TO TERMS FOR 1971 AT A
SALARY OF $110,000.  /8/  FLOOD STARTED THE SEASON BUT, APPARENTLY
BECAUSE HE WAS DISSATISFIED WITH HIS PERFORMANCE, HE LEFT THE
WASHINGTON CLUB ON APRIL 27, EARLY IN THE CAMPAIGN.  HE HAS NOT PLAYED
BASEBALL SINCE THEN. 

        III

        THE PRESENT LITIGATION 

JUDGE COOPER, IN A DETAILED OPINION, FIRST DENIED A PRELIMINARY
INJUNCTION, 309 F.SUPP.  793 (SDNY 1970), OBSERVING ON THE WAY: 

   "BASEBALL HAS BEEN THE NATIONAL PASTIME FOR OVER ONE HUNDRED

  YEARS AND ENJOYS A UNIQUE PLACE IN OUR AMERICAN HERITAGE.  MAJOR

  LEAGUE PROFESSIONAL BASEBALL IS AVIDLY FOLLOWED BY MILLIONS OF

  FANS, LOOKED UPON WITH FERVOR AND PRIDE AND PROVIDES A SPECIAL

  SOURCE OF INSPIRATION AND COMPETITIVE TEAM SPIRIT ESPECIALLY FOR

  THE YOUNG. 

"BASEBALL'S STATUS IN THE LIFE OF THE NATION IS SO PERVASIVE

  THAT IT WOULD NOT STRAIN CREDULITY TO SAY THE COURT CAN TAKE

  JUDICIAL NOTICE THAT BASEBALL IS EVERYBODY'S BUSINESS.  TO PUT IT

  MILDLY AND WITH RESTRAINT, IT WOULD BE UNFORTUNATE INDEED IF A

  FINE SPORT AND PROFESSION, WHICH BRINGS SURCEASE FROM DAILY

  TRAVAIL AND AN ESCAPE FROM THE ORDINARY TO MOST INHABITANTS OF

  THIS LAND, WERE TO SUFFER IN THE LEAST BECAUSE OF UNDUE

  CONCENTRATION BY ANY ONE OR ANY GROUP ON COMMERCIAL AND PROFIT

  CONSIDERATIONS.  THE GAME IS ON HIGHER GROUND; IT BEHOOVES EVERY

  ONE TO KEEP IT THERE."  309 F.SUPP.,AT 797. 

FLOOD'S APPLICATION FOR AN EARLY TRIAL WAS GRANTED.  THE COURT NEXT
DEFERRED UNTIL TRIAL ITS DECISION ON THE DEFENDANTS' MOTIONS TO DISMISS
THE PRIMARY CAUSES OF ACTION, BUT GRANTED A DEFENSE MOTION FOR SUMMARY
JUDGMENT ON AN ADDITIONAL CAUSE OF ACTION.  312 F.SUPP.  404 (SDNY
1970). 

TRIAL TO THE COURT TOOK PLACE IN MAY AND JUNE 1970.  AN EXTENSIVE
RECORD WAS DEVELOPED.  IN AN ENSUING OPINION, 316 F.SUPP.  271 (SDNY
1970), JUDGE COOPER FIRST NOTED THAT: 

    "PLAINTIFF'S WITNESSES IN THE MAIN CONCEDE THAT SOME FORM OF

  RESERVE ON PLAYERS IS A NECESSARY ELEMENT OF THE ORGANIZATION OF

  BASEBALL AS A LEAGUE SPORT, BUT CONTEND THAT THE PRESENT

  ALL-EMBRACING SYSTEM IS NEEDLESSLY RESTRICTIVE AND OFFER VARIOUS

  ALTERNATIVES WHICH IN THEIR VIEW MIGHT LOOSEN THE BONDS WITHOUT

  SACRIFICE TO THE GAME.  . . .

        .          .          .          . 

"CLEARLY THE PREPONDERANCE OF CREDIBLE PROOF DOES NOT FAVOR

  ELIMINATION OF THE RESERVE CLAUSE.  WITH THE SOLE EXCEPTION OF

  PLAINTIFF HIMSELF, IT SHOWS THAT EVEN PLAINTIFF'S WITNESSES DO

  NOT CONTEND THAT IT IS WHOLLY UNDESIRABLE; IN FACT THEY REGARD

  SUBSTANTIAL PORTIONS MERITORIOUS.  . . . " 316 F.SUPP.,AT

  275-276. 

HE THEN HELD THAT FEDERAL BASEBALL CLUB V. NATIONAL LEAGUE, 259 U.S.
200 (1922), AND TOOLSON V. NEW YORK YANKEES, INC., 346 U.S. 356 (1953),
WERE CONTROLLING; THAT IT WAS NOT NECESSARY TO REACH THE ISSUE WHETHER
EXEMPTION FROM THE ANTITRUST LAWS WOULD RESULT BECAUSE ASPECTS OF
BASEBALL NOW ARE A SUBJECT OF COLLECTIVE BARGAINING; THAT THE
PLAINTIFF'S STATE-LAW CLAIMS, THOSE BASED ON COMMON LAW AS WELL AS ON
STATUTE, WERE TO BE DENIED BECAUSE BASEBALL WAS NOT "A MATTER WHICH
ADMITS OF DIVERSITY OF TREATMENT," 316 F.SUPP.,AT 280; THAT THE
INVOLUNTARY SERVITUDE CLAIM FAILED BECAUSE OF THE ABSENCE OF "THE
ESSENTIAL ELEMENT OF THIS CAUSE OF ACTION, A SHOWING OF COMPULSORY
SERVICE," 316 F.SUPP.,AT 281-282; AND THAT JUDGMENT WAS TO BE ENTERED
FOR THE DEFENDANTS.  JUDGE COOPER INCLUDED A STATEMENT OF PERSONAL
CONVICTION TO THE EFFECT THAT "NEGOTIATIONS COULD PRODUCE AN
ACCOMMODATION ON THE RESERVE SYSTEM WHICH WOULD BE EMINENTLY FAIR AND
EQUITABLE TO ALL CONCERNED" AND THAT "THE RESERVE CLAUSE CAN BE
FASHIONED SO AS TO FIND ACCEPTANCE BY PLAYER AND CLUB."  316 F.SUPP.,
AT 282 AND 284. 

ON APPEAL, THE SECOND CIRCUIT FELT "COMPELLED TO AFFIRM."  443 F.2D
264, 265 (1971).  IT REGARDED THE ISSUE OF STATE LAW AS ONE OF FIRST
IMPRESSION, BUT CONCLUDED THAT THE COMMERCE CLAUSE PRECLUDED ITS
APPLICATION.  JUDGE MOORE ADDED A CONCURRING OPINION IN WHICH HE
PREDICTED, WITH RESPECT TO THE SUGGESTED OVERRULING OF FEDERAL BASEBALL
AND TOOLSON, THAT "THERE IS NO LIKELIHOOD THAT SUCH AN EVENT WILL
OCCUR."  /9/  443 F.2D,AT 268, 272. 

WE GRANTED CERTIORARI IN ORDER TO LOOK ONCE AGAIN AT THIS
TROUBLESOME AND UNUSUAL SITUATION.  404 U.S. 880 (1971). 

        IV

        THE LEGAL BACKGROUND 

A. FEDERAL BASEBALL CLUB V. NATIONAL LEAGUE, 259 U.S. 200 (1922),
WAS A SUIT FOR TREBLE DAMAGES INSTITUTED BY A MEMBER OF THE FEDERAL
LEAGUE (BALTIMORE) AGAINST THE NATIONAL AND AMERICAN LEAGUES AND
OTHERS.  THE PLAINTIFF OBTAINED A VERDICT IN THE TRIAL COURT, BUT THE
COURT OF APPEALS REVERSED.  THE MAIN BRIEF FILED BY THE PLAINTIFF WITH
THIS COURT DISCLOSES THAT IT WAS STRENUOUSLY ARGUED, AMONG OTHER
THINGS, THAT THE BUSINESS IN WHICH THE DEFENDANTS WERE ENGAGED WAS
INTERSTATE COMMERCE; THAT THE INTERSTATE RELATIONSHIP AMONG THE SEVERAL
CLUBS, LOCATED AS THEY WERE IN DIFFERENT STATES, WAS PREDOMINANT; THAT
ORGANIZED BASEBALL REPRESENTED AN INVESTMENT OF COLOSSAL WEALTH; THAT
IT WAS AN ENGAGEMENT IN MONEYMAKING; THAT GATE RECEIPTS WERE DIVIDED BY
AGREEMENT BETWEEN THE HOME CLUB AND THE VISITING CLUB; AND THAT THE
BUSINESS OF BASEBALL WAS TO BE DISTINGUISHED FROM THE MERE PLAYING OF
THE GAME AS A SPORT FOR PHYSICAL EXERCISE AND DIVERSION.  SEE ALSO 259
U.S.,AT 201-206. 

MR. JUSTICE HOLMES, IN SPEAKING SUCCINCTLY FOR A UNANIMOUS COURT,
SAID: 

     "THE BUSINESS IS GIVING EXHIBITIONS OF BASEBALL, WHICH ARE

  PURELY STATE AFFAIRS.  . . . BUT THE FACT THAT IN ORDER TO GIVE

  THE EXHIBITIONS THE LEAGUES MUST INDUCE FREE PERSONS TO CROSS

  STATE LINES AND MUST ARRANGE AND PAY FOR THEIR

DOING SO IS NOT ENOUGH TO CHANGE THE CHARACTER OF THE BUSINESS.  . . .
(THE TRANSPORT IS A MERE INCIDENT, NOT THE ESSENTIAL THING.  THAT TO
WHICH IT IS INCIDENT, THE EXHIBITION, ALTHOUGH MADE FOR MONEY WOULD NOT
BE CALLED TRADE OR COMMERCE IN THE COMMONLY ACCEPTED USE OF THOSE
WORDS.  AS IT IS PUT BY THE DEFENDANTS, PERSONAL EFFORT, NOT RELATED TO
PRODUCTION, IS NOT A SUBJECT OF COMMERCE.  THAT WHICH IN ITS
CONSUMMATION IS NOT COMMERCE DOES NOT BECOME COMMERCE AMONG THE STATES
BECAUSE THE TRANSPORTATION THAT WE HAVE MENTIONED TAKES PLACE.  TO
REPEAT THE ILLUSTRATIONS GIVEN BY THE COURT BELOW, A FIRM OF LAWYERS
SENDING OUT A MEMBER TO ARGUE A CASE, OR THE CHAUTAUQUA LECTURE BUREAU
SENDING OUT LECTURERS, DOES NOT ENGAGE IN SUCH COMMERCE BECAUSE THE
LAWYER OR LECTURER GOES TO ANOTHER STATE.     "IF WE ARE RIGHT THE
PLAINTIFF'S BUSINESS IS TO BE DESCRIBED IN THE SAME WAY AND THE
RESTRICTIONS BY CONTRACT THAT PREVENTED THE PLAINTIFF FROM GETTING
PLAYERS TO BREAK THEIR BARGAINS AND THE OTHER CONDUCT CHARGED AGAINST
THE DEFENDANTS WERE NOT AN INTERFERENCE WITH COMMERCE AMONG THE
STATES."  259 U.S.,AT 208-209.  /10/ 

THE COURT THUS CHOSE NOT TO BE PERSUADED BY OPPOSING EXAMPLES
PROFFERED BY THE PLAINTIFF, AMONG THEM (A) JUDGE LEARNED HAND'S
DECISION ON A DEMURRER TO A SHERMAN ACT COMPLAINT WITH RESPECT TO
VAUDEVILLE ENTERTAINERS TRAVELING A THEATER CIRCUIT COVERING SEVERAL
STATES, H. B. MARIENELLI, LTD. V. UNITED BOOKING OFFICES, 227 F. 165
(SDNY 1914); (B) THE FIRST MR. JUSTICE HARLAN'S OPINION IN
INTERNATIONAL TEXTBOOK CO. V. PIGG, 217 U.S. 91 (1910), TO THE EFFECT
THAT CORRESPONDENCE COURSES PURSUED THROUGH THE MAIL CONSTITUTED
COMMERCE AMONG THE STATES; AND (C) MR. JUSTICE HOLMES' OWN OPINION, FOR
ANOTHER UNANIMOUS COURT, ON DEMURRER IN A SHERMAN ACT CASE, RELATING TO
CATTLE SHIPMENT, THE INTERSTATE MOVEMENT OF WHICH WAS INTERRUPTED FOR
THE FINDING OF PURCHASERS AT THE STOCKYARDS, SWIFT & CO. V. UNITED
STATES, 196 U.S. 375 (1905).  THE ONLY EARLIER CASE THE PARTIES WERE
ABLE TO LOCATE WHERE THE QUESTION WAS RAISED WHETHER ORGANIZED BASEBALL
WAS WITHIN THE SHERMAN ACT WAS AMERICAN LEAGUE BASEBALL CLUB V. CHASE,
86 MISC. 441, 149 N.Y.S. 6 (1914).  THAT COURT HAD ANSWERED THE
QUESTION IN THE NEGATIVE. 

B. FEDERAL BASEBALL WAS CITED A YEAR LATER, AND WITHOUT DISFAVOR, IN
ANOTHER OPINION BY MR. JUSTICE HOLMES FOR A UNANIMOUS COURT.  THE
COMPLAINT CHARGED ANTITRUST VIOLATIONS WITH RESPECT TO VAUDEVILLE
BOOKINGS.  IT WAS HELD, HOWEVER, THAT THE CLAIM WAS NOT FRIVOLOUS AND
THAT THE BILL SHOULD NOT HAVE BEEN DISMISSED.  HART V. B. F. KEITH
VAUDEVILLE EXCHANGE, 262 U.S. 271 (1923).  /11/

IT HAS ALSO BEEN CITED, NOT UNFAVORABLY, WITH RESPECT TO THE
PRACTICE OF LAW, UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322
U.S. 533, 573 (1944) (STONE, C.J., DISSENTING); WITH RESPECT TO OUT-OF
STATE CONTRACTORS, UNITED STATES V. EMPLOYING PLASTERERS ASSN., 347
U.S. 186, 196-197 (1954) (MINTON, J., DISSENTING); AND UPON A GENERAL
COMPARISON REFERENCE, NORTH AMERICAN CO. V. SEC, 327 U.S. 686, 694
(1946). 

IN THE YEARS THAT FOLLOWED, BASEBALL CONTINUED TO BE SUBJECT TO
INTERMITTENT ANTITRUST ATTACK.  THE COURTS, HOWEVER, REJECTED THESE
CHALLENGES ON THE AUTHORITY OF FEDERAL BASEBALL.  IN SOME CASES STRESS
WAS LAID, ALTHOUGH UNSUCCESSFULLY, ON NEW FACTORS SUCH AS THE
DEVELOPMENT OF RADIO AND TELEVISION WITH THIER SUBSTANTIAL ADDITIONAL
REVENUES TO BASEBALL.  /12/  FOR THE MOST PART, HOWEVER, THE HOLMES
OPINION WAS GENERALLY AND NECESSARILY ACCEPTED AS CONTROLLING
AUTHORITY.  /13/  AND IN THE 1952 REPORT OF THE SUBCOMMITTEE ON STUDY
OF MONOPOLY POWER OF THE HOUSE COMMITTEE ON THE JUDICIARY, H.R. REP.
NO. 2002, 82D CONG.,2D SESS., 229, IT WAS SAID, IN CONCLUSION:

     "ON THE OTHER HAND THE OVERWHELMING PREPONDERANCE OF THE

  EVIDENCE ESTABLISHED BASEBALL'S NEED FOR SOME SORT OF RESERVE

  CLAUSE.  BASEBALL'S HISTORY SHOWS THAT CHAOTIC CONDITIONS

  PREVAILED WHEN THERE WAS NO RESERVE CLAUSE.  EXPERIENCE POINTS TO

  NO FEASIBLE SUBSTITUTE TO PROTECT THE INTEGRITY OF THE GAME OR TO

GUARANTEE A COMPARATIVELY EVEN COMPETITIVE STRUGGLE.  THE

EVIDENCE ADDUCED AT THE HEARINGS WOULD CLEARLY NOT JUSTIFY THE

  ENACTMENT OF LEGISLATION FLATLY CONDEMNING THE RESERVE CLAUSE." 

C. THE COURT GRANTED CERTIORARI, 345 U.S. 963 (1953), IN THE
TOOLSON, KOWALSKI, AND CORBETT CASES, CITED IN NN. 12 AND 13, SUPRA,
AND, BY A SHORT PER CURIAM (WARREN, C.J., AND BLACK, FRANKFURTER,
DOUGLAS, JACKSON, CLARK, AND MINTON, JJ.), AFFIRMED THE JUDGMENTS OF
THE RESPECTIVE COURTS OF APPEALS IN THOSE THREE CASES.  TOOLSON V. NEW
YORK YANKEES, INC., 346 U.S. 356 (1953).  FEDERAL BASEBALL WAS CITED AS
HOLDING "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," 346 U.S.,AT 357, AND: 

"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."  IBID. 

THIS QUOTATION REVEALS FOUR REASONS FOR THE COURT'S AFFIRMANCE OF
TOOLSON AND ITS COMPANION CASES:  (A) CONGRESSIONAL AWARENESS FOR THREE
DECADES OF THE COURT'S RULING IN FEDERAL BASEBALL, COUPLED WITH
CONGRESSIONAL INACTION.  (B) THE FACT THAT BASEBALL WAS LEFT ALONE TO
DEVELOP FOR THAT PERIOD UPON THE UNDERSTANDING THAT THE RESERVE SYSTEM
WAS NOT SUBJECT TO EXISTING FEDERAL ANTITRUST LAWS.  (C) A RELUCTANCE
TO OVERRULE FEDERAL BASEBALL WITH CONSEQUENT RETROACTIVE EFFECT.  (D) A
PROFESSED DESIRE THAT ANY NEEDED REMEDY BE PROVIDED BY LEGISLATION
RATHER THAN BY COURT DECREE.  THE EMPHASIS IN TOOLSON WAS ON THE
DETERMINATION, ATTRIBUTED EVEN TO FEDERAL BASEBALL, THAT CONGRESS HAD
NO INTENTION TO INCLUDE BASEBALL WITHIN THE REACH OF THE FEDERAL
ANTITRUST LAWS.  TWO JUSTICES (BURTON AND REED, JJ.)  DISSENTED,
STRESSING THE FACTUAL ASPECTS, REVENUE SOURCES, AND THE ABSENCE OF AN
EXPRESS EXEMPTION OF ORGANIZED BASEBALL FROM THE SHERMAN ACT.  346
U.S.,AT 357.  THE 1952 CONGRESSIONAL STUDY WAS MENTIONED.  ID., AT 358,
359, 361. 

IT IS OF INTEREST TO NOTE THAT IN TOOLSON THE PETITIONER HAD ARGUED
FLATLY THAT FEDERAL BASEBALL "IS WRONG AND MUST BE OVERRULED," BRIEF
FOR PETITIONER, NO. 18, O.T. 1953, P. 19, AND THAT THOMAS REED POWELL,
A CONSTITUTIONAL SCHOLAR OF NO SMALL STATURE, URGED, AS COUNSEL FOR AN
AMICUS, THAT "BASEBALL IS A UNIQUE ENTERPRISE," BRIEF FOR BOSTON
AMERICAN LEAGUE BASE BALL CO. AS AMICUS CURIAE 2, AND THAT "UNBRIDLED
COMPETITION AS APPLIED TO BASEBALL WOULD NOT BE IN THE PUBLIC
INTEREST."  ID., AT 14. 

D. UNITED STATES V. SHUBERT, 348 U.S. 222 (1955), WAS A CIVIL
ANTITRUST ACTION AGAINST DEFENDANTS ENGAGED IN THE PRODUCTION OF
LEGITIMATE THEATRICAL ATTRACTIONS THROUGHOUT THE UNITED STATES AND IN
OPERATING THEATERS FOR THE PRESENTATION OF SUCH ATTRACTIONS.  THE
DISTRICT COURT HAD DISMISSED THE COMPLAINT ON THE AUTHORITY OF FEDERAL
BASEBALL AND TOOLSON.  120 F.SUPP.  15 (SDNY 1953).  THIS COURT
REVERSED.  MR. CHIEF JUSTICE WARREN NOTED THE COURT'S BROAD CONCEPTION
OF "TRADE OR COMMERCE" IN THE ANTITRUST STATUTES AND THE TYPES OF
ENTERPRISES ALREADY HELD TO BE WITHIN THE REACH OF THAT PHRASE.  HE
STATED THAT FEDERAL BASEBALL AND TOOLSON AFFORDED NO BASIS FOR A
CONCLUSION THAT BUSINESSES BUILT AROUND THE PERFORMANCE OF LOCAL
EXHIBITIONS ARE EXEMPT FROM THE ANTITRUST LAWS.  348 U.S.,AT 227.  HE
THEN WENT ON TO ELUCIDATE THE HOLDING IN TOOLSON BY METICULOUSLY
SPELLING OUT THE FACTORS MENTIONED ABOVE: 

     "IN FEDERAL BASEBALL, THE COURT, SPEAKING THROUGH MR. JUSTICE

  HOLMES, WAS DEALING WITH THE BUSINESS OF BASEBALL AND NOTHING

  ELSE.  . . . THE TRAVEL, THE COURT CONCLUDED, WAS 'A MERE

  INCIDENT, NOT THE ESSENTIAL THING.'  . . .

        .          .    .          . 

     "IN TOOLSON, WHERE THE ISSUE WAS THE SAME AS IN FEDERAL

  BASEBALL, THE COURT WAS CONFRONTED WITH A UNIQUE COMBINATION OF

  CIRCUMSTANCES.  FOR OVER 30 YEARS THERE HAD STOOD A DECISION OF

  THIS COURT SPECIFICALLY FIXING THE STATUS OF THE BASEBALL

  BUSINESS UNDER THE ANTITRUST LAWS AND MORE PARTICULARLY THE

  VALIDITY OF THE SO-CALLED 'RESERVE CLAUSE.'  DURING THIS PERIOD,

  IN RELIANCE ON THE FEDERAL BASEBALL PRECEDENT, THE BASEBALL

  BUSINESS HAD GROWN AND DEVELOPED.  . . . AND CONGRESS, ALTHOUGH

  IT HAD ACTIVELY CONSIDERED THE RULING, HAD NOT SEEN FIT TO REJECT

  IT BY AMENDATORY LEGISLATION.  AGAINST THIS BACKGROUND, THE COURT

  IN TOOLSON WAS ASKED TO OVERRULE FEDERAL BASEBALL ON THE GROUND

  THAT IT WAS OUT OF STEP WITH SUBSEQUENT DECISIONS REFLECTING

  PRESENT-DAY CONCEPTS OF INTERSTATE COMMERCE.  THE COURT, IN VIEW

  OF THE CIRCUMSTANCES OF THE CASE, DECLINED TO DO SO.  BUT NEITHER

  DID THE COURT NECESSARILY REAFFIRM ALL THAT WAS SAID IN FEDERAL

 BASEBALL.  INSTEAD, '(WITHOUT RE-EXAMINATION OF THE UNDERLYING

  ISSUES,' THE COURT ADHERED TO FEDERAL BASEBALL '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.'  346 U.S.,AT 357.  IN SHORT, TOOLSON WAS A

  NARROW APPLICATION OF THE RULE OF STARE DECISIS. 

     " . . . IF THE TOOLSON HOLDING IS TO BE EXPANDED-- OR

  CONTRACTED-- THE APPROPRIATE REMEDY LIES WITH CONGRESS."  348

  U.S.,AT 228-230. 

E. UNITED STATES V. INTERNATIONAL BOXING CLUB, 348 U.S. 236 (1955),
WAS A COMPANION TO SHUBERT AND WAS DECIDED THE SAME DAY.  THIS WAS A
CIVIL ANTITRUST ACTION AGAINST DEFENDANTS ENGAGED IN THE BUSINESS OF
PROMOTING PROFESSIONAL CHAMPIONSHIP BOXING CONTESTS.  HERE AGAIN THE
DISTRICT COURT HAD DISMISSED THE COMPLAINT IN RELIANCE UPON FEDERAL
BASEBALL AND TOOLSON.  THE CHIEF JUSTICE OBSERVED THAT "IF IT WERE NOT
FOR FEDERAL BASEBALL AND TOOLSON, WE THINK THAT IT WOULD BE TOO CLEAR
FOR DISPUTE THAT THE GOVERNMENT'S ALLEGATIONS BRING THE DEFENDANTS
WITHIN THE SCOPE OF THE ACT."  348 U.S.,AT 240-241.  HE POINTED OUT
THAT THE DEFENDANTS RELIED ON THE TWO BASEBALL CASES BUT ALSO WOULD
HAVE BEEN CONTENT WITH A MORE RESTRICTIVE INTERPRETATION OF THEM THAN
THE SHUBERT DEFENDANTS, FOR THE BOXING DEFENDANTS ARGUED THAT THE CASES
IMMUNIZED ONLY BUSINESSES THAT INVOLVE EXHIBITIONS OF AN ATHLETIC
NATURE.  THE COURT ACCEPTED NEITHER ARGUMENT.  IT AGAIN NOTED, 348
U.S.,AT 242, THAT "TOOLSON NEITHER OVERRULED FEDERAL BASEBALL NOR
NECESSARILY REAFFIRMED ALL THAT WAS SAID IN FEDERAL BASEBALL."  IT
STATED: 

"THE CONTROLLING CONSIDERATION IN FEDERAL BASEBALL AND HART WAS,
INSTEAD, A VERY PRACTICAL ONE-- THE DEGREE OF INTERSTATE ACTIVITY
INVOLVED IN THE PARTICULAR BUSINESS UNDER REVIEW.  IT FOLLOWS THAT
STARE DECISIS CANNOT HELP THE DEFENDANTS HERE; FOR, CONTRARY TO THEIR
ARGUMENT, FEDERAL BASEBALL DID NOT HOLD THAT ALL BUSINESSES BASED ON
PROFESSIONAL SPORTS WERE OUTSIDE THE SCOPE OF THE ANTITRUST LAWS.  THE
ISSUE CONFRONTING US IS, THEREFORE, NOT WHETHER A PREVIOUSLY GRANTED
EXEMPTION SHOULD CONTINUE, BUT WHETHER AN EXEMPTION SHOULD BE GRANTED
IN THE FIRST INSTANCE.  AND THAT ISSUE IS FOR CONGRESS TO RESOLVE, NOT
THIS COURT."  348 U.S.,AT 243. 

THE COURT NOTED THE PRESENCE THEN IN CONGRESS OF VARIOUS BILLS
FORBIDDING THE APPLICATION OF THE ANTITRUST LAWS TO "ORGANIZED
PROFESSIONAL SPORTS ENTERPRISES"; THE HOLDING OF EXTENSIVE HEARINGS ON
SOME OF THESE; SUBCOMMITTEE OPPOSITION; A POSTPONEMENT RECOMMENDATION
AS TO BASEBALL; AND THE FACT THAT "CONGRESS THUS LEFT INTACT THE THEN
EXISTING COVERAGE OF THE ANTITRUST LAWS."  348 U.S.,AT 243-244. 

MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE MINTON, DISSENTED. 
"IT WOULD BAFFLE THE SUBTLEST INGENUITY," HE SAID, "TO FIND A SINGLE
DIFFERENTIATING FACTOR BETWEEN OTHER SPORTING EXHIBITIONS . . . AND
BASEBALL INSOFAR AS THE CONDUCT OF THE SPORT IS RELEVANT TO THE
CRITERIA OR CONSIDERATIONS BY WHICH THE SHERMAN LAW BECOMES APPLICABLE
TO A 'TRADE OR COMMERCE.'"  348 U.S.,AT 248.  HE WENT ON: 

"THE COURT DECIDED AS IT DID IN THE TOOLSON CASE AS AN APPLICATION
OF THE DOCTRINE OF STARE DECISIS.  THAT DOCTRINE IS NOT, TO BE SURE, AN
IMPRISONMENT OF REASON.  BUT NEITHER IS IT A WHIMSY.  IT CAN HARDLY BE
THAT THIS COURT GAVE A PREFERRED POSITION TO BASEBALL BECAUSE IT IS THE
GREAT AMERICAN SPORT.  . . . IF STARE DECISIS BE ONE ASPECT OF LAW, AS
IT IS, TO DISREGARD IT IN IDENTIC SITUATIONS IS MERE CAPRICE. 

     "CONGRESS, ON THE OTHER HAND, MAY YIELD TO SENTIMENT AND BE

  CAPRICIOUS, SUBJECT ONLY TO DUE PROCESS.  . . . 

      "BETWEEN THEM, THIS CASE AND SHUBERT ILLUSTRATE THAT NICE BUT

  RATIONAL DISTINCTIONS ARE INEVITABLE IN ADJUDICATION.  I AGREE

  WITH THE COURT'S OPINION IN SHUBERT FOR PRECISELY THE REASON THAT

  CONSTRAINS ME TO DISSENT IN THIS CASE."  348 U.S.,AT 249-250. 

MR. JUSTICE MINTON ALSO SEPARATELY DISSENTED ON THE GROUND THAT BOXING
IS NOT TRADE OR COMMERCE.  HE ADDED THE COMMENT THAT "CONGRESS HAS NOT
ATTEMPTED" TO CONTROL BASEBALL AND BOXING.  348 U.S.,AT 251, 253.  THE
TWO DISSENTING JUSTICES, THUS, DID NOT CALL FOR THE OVERRULING OF
FEDERAL BASEBALL AND TOOLSON; THEY MERELY FELT THAT BOXING SHOULD BE
UNDER THE SAME UMBRELLA OF FREEDOM AS WAS BASEBALL AND, AS MR. JUSTICE
FRANKFURTER SAID, 348 U.S.,AT 250, THEY COULD NOT EXEMPT BASEBALL "TO
THE EXCLUSION OF EVERY OTHER SPORT DIFFERENT NOT ONE LEGAL JOT OR
TITTLE FROM IT."  /14/ 

F. THE PARADE MARCHED ON.  RADOVICH V. NATIONAL FOOTBALL LEAGUE, 352
U.S. 445 (1957), WAS A CIVIL CLAYTON ACT CASE TESTING THE APPLICATION
OF THE ANTITRUST LAWS TO PROFESSIONAL FOOTBALL.  THE DISTRICT COURT
DISMISSED.  THE NINTH CIRCUIT AFFIRMED IN PART ON THE BASIS OF FEDERAL
BASEBALL AND TOOLSON.  THE COURT DID NOT HESITATE TO "CONFESS THAT THE
STRENGTH OF THE PULL" OF THE BASEBALL CASES AND OF INTERNATIONAL BOXING
"IS ABOUT EQUAL," BUT THEN OBSERVED THAT "(FOOTBALL IS A TEAM SPORT"
AND BOXING AN INDIVIDUAL ONE.  231 F.2D 620, 622. 

THIS COURT REVERSED WITH AN OPINION BY MR. JUSTICE CLARK.  HE SAID
THAT THE COURT MADE ITS RULING IN TOOLSON "BECAUSE IT WAS CONLCUDED
THAT MORE HARM WOULD BE DONE IN OVERRULING FEDERAL BASEBALL THAN IN
UPHOLDING A RULING WHICH AT BEST WAS OF DUBIOUS VALIDITY."  352 U.S.,AT
450.  HE NOTED THAT CONGRESS HAD NOT ACTED.  HE THEN SAID: 

"ALL THIS, COMBINED WITH THE FLOOD OF LITIGATION THAT WOULD FOLLOW
ITS REPUDIATION, THE HARASSMENT THAT WOULD ENSUE, AND THE RETROACTIVE
EFFECT OF SUCH A DECISION, LED THE COURT TO THE PRACTICAL RESULT THAT
IT SHOULD SUSTAIN THE UNEQUIVOCAL LINE OF AUTHORITY REACHING OVER MANY
YEARS. 

     "(SINCE TOOLSON AND FEDERAL BASEBALL ARE STILL CITED AS

  CONTROLLING AUTHORITY IN ANTITRUST ACTIONS INVOLVING OTHER FIELDS

  OF BUSINESS, WE NOW SPECIFICALLY LIMIT THE RULE THERE ESTABLISHED

  TO THE FACTS THERE INVOLVED, I.E., THE BUSINESS OF ORGANIZED

  PROFESSIONAL BASEBALL.  AS LONG AS THE CONGRESS CONTINUES TO

  ACQUIESCE WE SHOULD ADHERE TO-- BUT NOT EXTEND-- THE

  INTERPREATION OF THE ACT MADE IN THOSE CASES.  . . . 

     "IF THIS RULING IS UNREALISTIC, INCONSISTENT, OR ILLOGICAL, IT

 IS SUFFICIENT TO ANSWER, ASIDE FROM THE DISTINCTIONS BETWEEN THE

  BUSINESSES, THAT WERE WE CONSIDERING THE QUESTION OF BASEBALL FOR

  THE FIRST TIME UPON A CLEAN SLATE WE WOULD HAVE NO DOUBTS.  BUT

  FEDERAL BASEBALL HELD THE BUSINESS OF BASEBALL OUTSIDE THE SCOPE

  OF THE ACT.  NO OTHER BUSINESS CLAIMING THE COVERAGE OF THOSE

  CASES HAS SUCH AN ADJUDICATION.  WE, THEREFORE, CONCLUDE THAT THE

  ORDERLY WAY TO ELIMINATE ERROR OR DISCRIMINATION, IF ANY THERE

BE, IS BY LEGISLATION AND NOT BY COURT DECISION.  CONGRESSIONAL

  PROCESSES ARE MORE ACCOMMODATIVE, AFFORDING THE WHOLE INDUSTRY

  HEARINGS AND AN OPPORTUNITY TO ASSIST IN THE FORMULATION OF NEW

  LEGISLATION.  THE RESULTING PRODUCT IS THEREFORE MORE LIKELY TO

  PROTECT THE INDUSTRY AND THE PUBLIC ALIKE.  THE WHOLE SCOPE OF

  CONGRESSIONAL ACTION WOULD BE KNOWN LONG IN ADVANCE AND EFFECTIVE

  DATES FOR THE LEGISLATION COULD BE SET IN THE FUTURE WITHOUT THE

  INJUSTICES OF RETROACTIVITY AND SURPRISE WHICH MIGHT FOLLOW COURT

 ACTION."  352 U.S.,AT 450-452 (FOOTNOTE OMITTED). 

MR. JUSTICE FRANKFURTER DISSENTED ESSENTIALLY FOR THE REASONS STATED
IN HIS DISSENT IN INTERNATIONAL BOXING, 352 U.S.,AT 455.  MR. JUSTICE
HARLAN, JOINED BY MR. JUSTICE BRENNAN, ALSO DISSENTED BECAUSE HE, TOO,
WAS "UNABLE TO DISTINGUISH FOOTBALL FROM BASEBALL."  352 U.S.,AT 456. 
HERE AGAIN THE DISSENTING JUSTICES DID NOT CALL FOR THE OVERRULING OF
THE BASEBALL DECISIONS.  THEY MERELY COULD NOT DISTINGUISH THE TWO
SPORTS AND, OUT OF RESPECT FOR STARE DECISIS, VOTED TO AFFIRM. 

G. FINALLY, IN HAYWOOD V. NATIONAL BASKETBALL ASSN., 401 U.S. 1204
(1971), MR. JUSTICE DOUGLAS, IN HIS CAPACITY AS CIRCUIT JUSTICE,
REINSTATED A DISTRICT COURT'S INJUNCTION PENDENTE LITE IN FAVOR OF A
PROFESSIONAL BASKETBALL PLAYER AND SAID, "BASKETBALL . . . DOES NOT
ENJOY EXEMPTION FROM THE ANTITRUST LAWS."  401 U.S.,AT 1205.  /15/ 

H. THIS SERIES OF DECISIONS UNDERSTANDABLY SPAWNED EXTENSIVE
COMMENTARY, /16/  SOME OF IT MILDLY CRITICAL AND MUCH OF IT NOT; NEARLY
ALL OF IT LOOKED TO CONGRESS FOR ANY REMEDY THAT MIGHT BE DEEMED
ESSENTIAL. 

I. LEGISLATIVE PROPOSALS HAVE BEEN NUMEROUS AND PERSISTENT.  SINCE
TOOLSON MORE THAN 50 BILLS HAVE BEEN INTRODUCED IN CONGRESS RELATIVE TO
THE APPLICABILITY OR NONAPPLICABILITY OF THE ANTITRUST LAWS TO
BASEBALL.  /17/  A FEW OF THESE PASSED ONE HOUSE OR THE OTHER.  THOSE
THAT DID WOULD HAVE EXPANDED, NOT RESTRICTED, THE RESERVE SYSTEM'S
EXEMPTION TO OTHER PROFESSIONAL LEAGUE SPORTS.  AND THE ACT OF SEPT.
30, 1961, PUB.L. 87-331, 75 STAT. 732, AND THE MERGER ADDITION THERETO
EFFECTED BY THE ACT OF NOV. 8, 1966, PUB.L. 89-800, SEC. 6(B), 80 STAT.
1515, 15 U.S.C. 1291-1295, WERE ALSO EXPANSIVE RATHER THAN RESTRICTIVE
AS TO ANTITRUST EXEMPTION.  /18/

 V 

IN VIEW OF ALL THIS, IT SEEMS APPROPRIATE NOW TO SAY THAT: 

1.  PROFESSIONAL BASEBALL IS A BUSINESS AND IT IS ENGAGED IN
INTERSTATE COMMERCE. 

2.  WITH ITS RESERVE SYSTEM ENJOYING EXEMPTION FROM THE FEDERAL
ANTITRUST LAWS, BASEBALL IS, IN A VERY DISTINCT SENSE, AN EXCEPTION AND
AN ANOMALY.  FEDERAL BASEBALL AND TOOLSON HAVE BECOME AN ABERRATION
CONFINED TO BASEBALL. 

3.  EVEN THOUGH OTHERS MIGHT REGARD THIS AS "UNREALISTIC,
INCONSISTENT, OR ILLOGICAL," SEE RADOVICH, 352 U.S.,AT 452, THE
ABERRATION IS AN ESTABLISHED ONE, AND ONE THAT HAS BEEN RECOGNIZED NOT
ONLY IN FEDERAL BASEBALL AND TOOLSON, BUT IN SHUBERT, INTERNATIONAL
BOXING, AND RADOVICH, AS WELL, A TOTAL OF FIVE CONSECUTIVE CASES IN
THIS COURT.  IT IS AN ABERRATION THAT HAS BEEN WITH US NOW FOR HALF A
CENTURY, ONE HERETOFORE DEEMED FULLY ENTITLED TO THE BENEFIT OF STARE
DECISIS, AND ONE THAT HAS SURVIVED THE COURT'S EXPANDING CONCEPT OF
INTERSTATE COMMERCE.  IT RESTS ON A RECOGNITION AND AN ACCEPTANCE OF
BASEBALL'S UNIQUE CHARACTERISTICS AND NEEDS. 

4.  OTHER PROFESSIONAL SPORTS OPERATING INTERSTATE-- FOOTBALL,
BOXING, BASKETBALL, AND, PRESUMABLY, HOCKEY /19/  AND GOLF /20/  -- ARE
NOT SO EXEMPT. 

5.  THE ADVENT OF RADIO AND TELEVISION, WITH THEIR CONSEQUENT
INCREASED COVERAGE AND ADDITIONAL REVENUES, HAS NOT OCCASIONED AN
OVERRULING OF FEDERAL BASEBALL AND TOOLSON. 

6.  THE COURT HAS EMPHASIZED THAT SINCE 1922 BASEBALL, WITH FULL AND
CONTINUING CONGRESSIONAL AWARENESS, HAS BEEN ALLOWED TO DEVELOP AND TO
EXPAND UNHINDERED BY FEDERAL LEGISLATIVE ACTION.  REMEDIAL LEGISLATION
HAS BEEN INTRODUCED REPEATEDLY IN CONGRESS BUT NONE HAS EVER BEEN
ENACTED.  THE COURT, ACCORDINGLY, HAS CONCLUDED THAT CONGRESS AS YET
HAS HAD NO INTENTION TO SUBJECT BASEBALL'S RESERVE SYSTEM TO THE REACH
OF THE ANTITRUST STATUTES.  THIS, OBVIOUSLY, HAS BEEN DEEMED TO BE
SOMETHING OTHER THAN MERE CONGRESSIONAL SILENCE AND PASSIVITY.  CF.
BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398 U.S. 235, 241-242
(1970). 

7.  THE COURT HAS EXPRESSED CONCERN ABOUT THE CONFUSION AND THE
RETROACTIVITY PROBLEMS THAT INEVITABLY WOULD RESULT WITH A JUDICIAL
OVERTURNING OF FEDERAL BASEBALL.  IT HAS VOICED A PREFERENCE THAT IF
ANY CHANGE IS TO BE MADE, IT COME BY LEGISLATIVE ACTION THAT, BY ITS
NATURE, IS ONLY PROSPECTIVE IN OPERATION. 

8.  THE COURT NOTED IN RADOVICH, 352 U.S.,AT 452, THAT THE SLATE
WITH RESPECT TO BASEBALL IS NOT CLEAN.  INDEED, IT HAS NOT BEEN CLEAN
FOR HALF A CENTURY. 

THIS EMPHASIS AND THIS CONCERN ARE STILL WITH US.  WE CONTINUE TO BE
LOATH, 50 YEARS AFTER FEDERAL BASEBALL AND ALMOST TWO DECADES AFTER
TOOLSON, TO OVERTURN THOSE CASES JUDICIALLY WHEN CONGRESS, BY ITS
POSITIVE INACTION, HAS ALLOWED THOSE DECISIONS TO STAND FOR SO LONG
AND, FAR BEYOND MERE INFERENCE AND IMPLICATION, HAS CLEARLY EVINCED A
DESIRE NOT TO DISAPPROVE THEM LEGISLATIVELY. 

ACCORDINGLY, WE ADHERE ONCE AGAIN TO FEDERAL BASEBALL AND TOOLSON
AND TO THEIR APPLICATION TO PROFESSIONAL BASEBALL.  WE ADHERE ALSO TO
INTERNATIONAL BOXING AND RADOVICH AND TO THEIR RESPECTIVE APPLICATIONS
TO PROFESSIONAL BOXING AND PROFESSIONAL FOOTBALL.  IF THERE IS ANY
INCONSISTENCY OR ILLOGIC IN ALL THIS, IT IS AN INCONSISTENCY AND
ILLOGIC OF LONG STANDING THAT IS TO BE REMEDIED BY THE CONGRESS AND NOT
BY THIS COURT.  IF WE WERE TO ACT OTHERWISE, WE WOULD BE WITHDRAWING
FROM THE CONCLUSION AS TO CONGRESSIONAL INTENT MADE IN TOOLSON AND FROM
THE CONCERNS AS TO RETROSPECTIVITY THEREIN EXPRESSED.  UNDER THESE
CIRCUMSTANCES, THERE IS MERIT IN CONSISTENCY EVEN THOUGH SOME MIGHT
CLAIM THAT BENEATH THAT CONSISTENCY IS A LAYER OF INCONSISTENCY. 

THE PETITIONER'S ARGUMENT AS TO THE APPLICATION OF STATE ANTITRUST
LAWS DESERVES A WORD.  JUDGE COOPER REJECTED THE STATE LAW CLAIMS
BECAUSE STATE ANTITRUST REGULATION WOULD CONFLICT WITH FEDERAL POLICY
AND BECAUSE NATIONAL "UNIFORMITY (IS REQUIRED) IN ANY REGULATION OF
BASEBALL AND ITS RESERVE SYSTEM."  316 F.SUPP.,AT 280.  THE COURT OF
APPEALS, IN AFFIRMING, STATED, "(AS THE BURDEN ON INTERSTATE COMMERCE
OUTWEIGHS THE STATES' INTERESTS IN REGULATING BASEBALL'S RESERVE
SYSTEM, THE COMMERCE CLAUSE PRECLUDES THE APPLICATION HERE OF STATE
ANTITRUST LAW."  443 F.2D,AT 268.  AS APPLIED TO ORGANIZED BASEBALL,
AND IN THE LIGHT OF THIS COURT'S OBSERVATIONS AND HOLDINGS IN FEDERAL
BASEBALL, IN TOOLSON, IN SHUBERT, IN INTERNATIONAL BOXING, AND IN
RADOVICH, AND DESPITE BASEBALL'S ALLEGEDLY INCONSISTENT POSITION TAKEN
IN THE PAST WITH RESPECT TO THE APPLICATION OF STATE LAW, /21/  THESE
STATEMENTS ADEQUATELY DISPOSE OF THE STATE LAW CLAIMS. 

THE CONCLUSION WE HAVE REACHED MAKES IT UNNECESSARY FOR US TO
CONSIDER THE RESPONDENTS' ADDITIONAL ARGUMENT THAT THE RESERVE SYSTEM
IS A MANDATORY SUBJECT OF COLLECTIVE BARGAINING AND THAT FEDERAL LABOR
POLICY THEREFORE EXEMPTS THE RESERVE SYSTEM FROM THE OPERATION OF
FEDERAL ANTITRUST LAWS.  /22/ 

WE REPEAT FOR THIS CASE WHAT WAS SAID IN TOOLSON: 

"WITHOUT RE-EXAMINATION OF THE UNDERLYING ISSUES, THE (JUDGMENT)
BELOW (IS) 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."  346 U.S.,AT 357.  AND WHAT THE COURT SAID IN FEDERAL
BASEBALL IN 1922 AND WHAT IT SAID IN TOOLSON IN 1953, WE SAY AGAIN HERE
IN 1972:  THE REMEDY, IF ANY IS INDICATED, IS FOR CONGRESSIONAL, AND
NOT JUDICIAL, ACTION. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              AFFIRMED. 

/1/  THE RESERVE SYSTEM, PUBLICLY INTRODUCED INTO BASEBALL CONTRACTS
IN 1887, SEE METROPOLITAN EXHIBITION CO. V. EWING, 42 F. 198, 202-204
(CC SDNY 1890), CENTERS IN THE UNIFORMITY OF PLAYER CONTRACTS; THE
CONFINEMENT OF THE PLAYER TO THE CLUB THAT HAS HIM UNDER THE CONTRACT;
THE ASSIGNABILITY OF THE PLAYER'S CONTRACT; AND THE ABILITY OF THE CLUB
ANNUALLY TO RENEW THE CONTRACT UNILATERALLY, SUBJECT TO A STATED SALARY
MINIMUM.  THUS 

A. RULE 3 OF THE MAJOR LEAGUE RULES PROVIDES IN PART: "(A) UNIFORM
CONTRACT.  TO PRESERVE MORALE AND TO PRODUCE THE SIMILARITY OF
CONDITIONS NECESSARY TO KEEN COMPETITION, THE CONTRACTS BETWEEN ALL
CLUBS AND THEIR PLAYERS IN THE MAJOR LEAGUES SHALL BE IN A SINGLE FORM
WHICH SHALL BE PRESCRIBED BY THE MAJOR LEAGUE EXECUTIVE COUNCIL.  NO
CLUB SHALL MAKE A CONTRACT DIFFERENT FROM THE UNIFORM CONTRACT OR A
CONTRACT CONTAINING A NON-RESERVE CLAUSE, EXCEPT WITH THE WRITTEN
APPROVAL OF THE COMMISSIONER.  . . .

.          .          .          . "(G) TAMPERING.  TO PRESERVE
DISCIPLINE AND COMPETITION, AND TO PREVENT THE ENTICEMENT OF PLAYERS,
COACHES, MANAGERS AND UMPIRES, THERE SHALL BE NO NEGOTIATIONS OR
DEALINGS RESPECTING EMPLOYMENT, EITHER PRESENT OR PROSPECTIVE, BETWEEN
ANY PLAYER, COACH OR MANAGER AND ANY CLUB OTHER THAN THE CLUB WITH
WHICH HE IS UNDER CONTRACT OR ACCEPTANCE OF TERMS, OR BY WHICH HE IS
RESERVED, OR WHICH HAS THE PLAYER ON ITS NEGOTIATION LIST, OR BETWEEN
ANY UMPIRE AND ANY LEAGUE OTHER THAN THE LEAGUE WITH WHICH HE IS UNDER
CONTRACT OR ACCEPTANCE OF TERMS, UNLESS THE CLUB OR LEAGUE WITH WHICH
HE IS CONNECTED SHALL HAVE, IN WRITING, EXPRESSLY AUTHORIZED SUCH
NEGOTIATIONS OR DEALINGS PRIOR TO THEIR COMMENCEMENT." 

B. RULE 9 OF THE MAJOR LEAGUE RULES PROVIDES IN PART: "(A) NOTICE. 
A CLUB MAY ASSIGN TO ANOTHER CLUB AN EXISTING CONTRACT WITH A PLAYER. 
THE PLAYER, UPON RECEIPT OF WRITTEN NOTICE OF SUCH ASSIGNMENT, IS BY
HIS CONTRACT BOUND TO SERVE THE ASSIGNEE. 

.          .          .          . 

"AFTER THE DATE OF SUCH ASSIGNMENT ALL RIGHTS AND OBLIGATIONS OF THE
ASSIGNOR CLUBS THEREUNDER SHALL BECOME THE RIGHTS AND OBLIGATIONS OF
THE ASSIGNEE CLUB.  . . . "     C. RULES 3 AND 9 OF THE PROFESSIONAL
BASEBALL RULES CONTAIN PROVISIONS PARALLEL TO THOSE JUST QUOTED. 

D. THE UNIFORM PLAYER'S CONTRACT PROVIDES IN PART: 

"4.  (A) . . . THE PLAYER AGREES THAT, IN ADDITION TO OTHER
REMEDIES, THE CLUB SHALL BE ENTITLED TO INJUNCTIVE AND OTHER EQUITABLE
RELIEF TO PREVENT A BREACH OF THIS CONTRACT BY THE PLAYER, INCLUDING,
AMONG OTHERS, THE RIGHT TO ENJOIN THE PLAYER FROM PLAYING BASEBALL FOR
ANY OTHER PERSON OR ORGANIZATION DURING THE TERM OF THIS CONTRACT." 
"5.  (A).  THE PLAYER AGREES THAT, WHILE UNDER CONTRACT, AND PRIOR TO
EXPIRATION OF THE CLUB'S RIGHT TO RENEW THIS CONTRACT, HE WILL NOT PLAY
BASEBALL OTHERWISE THAN FOR THE CLUB, EXCEPT THAT THE PLAYER MAY
PARTICIPATE IN POST-SEASON GAMES UNDER THE CONDITIONS PRESCRIBED IN THE
MAJOR LEAGUE RULES.  . . . " 

"6.  (A) THE PLAYER AGREES THAT THIS CONTRACT MAY BE ASSIGNED BY THE
CLUB (AND REASSIGNED BY ANY ASSIGNEE CLUB) TO ANY OTHER CLUB IN
ACCORDANCE WITH THE MAJOR LEAGUE RULES AND THE PROFESSIONAL BASEBALL
RULES." 

"10.  (A) ON OR BEFORE JANUARY 15 (OR IF A SUNDAY, THEN THE NEXT
PRECEDING BUSINESS DAY) OF THE YEAR NEXT FOLLOWING THE LAST PLAYING
SEASON COVERED BY THIS CONTRACT, THE CLUB MAY TENDER TO THE PLAYER A
CONTRACT FOR THE TERM OF THAT YEAR BY MAILING THE SAME TO THE PLAYER AT
HIS ADDRESS FOLLOWING HIS SIGNATURE HERETO, OR IF NONE BE GIVEN, THEN
AT HIS LAST ADDRESS OF RECORD WITH THE CLUB.  IF PRIOR TO THE MARCH 1
NEXT SUCCEEDING SAID JANUARY 15, THE PLAYER AND THE CLUB HAVE NOT
AGREED UPON THE TERMS OF SUCH CONTRACT, THEN ON OR BEFORE 10 DAYS AFTER
SAID MARCH 1, THE CLUB SHALL HAVE THE RIGHT BY WRITTEN NOTICE TO THE
PLAYER AT SAID ADDRESS TO RENEW THIS CONTRACT FOR THE PERIOD OF ONE
YEAR ON THE SAME TERMS, EXCEPT THAT THE AMOUNT PAYABLE TO THE PLAYER
SHALL BE SUCH AS THE CLUB SHALL FIX IN SAID NOTICE; PROVIDED, HOWEVER,
THAT SAID AMOUNT, IF FIXED BY A MAJOR LEAGUE CLUB, SHALL BE AN AMOUNT
PAYABLE AT A RATE NOT LESS THAN 80% OF THE RATE STIPULATED FOR THE
PRECEDING YEAR. 

"(B) THE CLUB'S RIGHT TO RENEW THIS CONTRACT, AS PROVIDED IN
SUBPARAGRAPH (A) OF THIS PARAGRAPH 10, AND THE PROMISE OF THE PLAYER
NOT TO PLAY OTHERWISE THAN WITH THE CLUB HAVE BEEN TAKEN INTO
CONSIDERATION IN DETERMINING THE AMOUNT PAYABLE UNDER PARAGRAPH 2
HEREOF." 

/2/  SEE GENERALLY THE BASEBALL ENCYCLOPEDIA (1969); L. RITTER, THE
GLORY OF THEIR TIMES (1966); 1 & 2 H. SEYMOUR, BASEBALL (1960, 1971); 1
& 2 D. VOIGT, AMERICAN BASEBALL (1966, 1970). 

/3/  THESE ARE NAMES ONLY FROM EARLIER YEARS.  BY MENTIONING SOME,
ONE RISKS UNINTENDED OMISSION OF OTHERS EQUALLY CELEBRATED. 

/4/  MILLIONS HAVE KNOWN AND ENJOYED BASEBALL.  ONE WRITER
KNOWLEDGEABLE IN THE FIELD OF SPORTS ALMOST ASSUMED THAT EVERYONE DID
UNTIL, ONE DAY, HE DISCOVERED OTHERWISE: 

"I KNEW A COVE WHO'D NEVER HEARD OF WASHINGTON AND LEE, 

     OF CAESAR AND NAPOLEON FROM THE ANCIENT JAMBOREE, BUT, BLI'ME,

  THERE ARE QUEERER THINGS THAN ANYTHING LIKE THAT, 

     FOR HERE'S A COVE WHO NEVER HEARD OF 'CASEY AT THE BAT'. 

        .          .          .          . 

"TEN MILLION NEVER HEARD OF KEATS, OR SHELLEY, BURNS OR POE; 

     BUT THEY KNOW 'THE AIR WAS SHATTERED BY THE FORCE OF CASEY'S

  BLOW'; THEY NEVER HEARD OF SHAKESPEARE, NOR OF DICKENS, LIKE AS

  NOT, 

     BUT THEY KNOW THE SOMBER DRAMA FROM OLD MUDVILLE'S HAUNTED

  LOT.  "HE NEVER HEARD OF CASEY.  AM I DREAMING?  IS IT TRUE? 

 IS FAME BUT WINDBLOWN ASHES WHEN THE SUMMER DAY IS THROUGH? 

  DOES GREATNESS FADE SO QUICKLY AND IS GRANDEUR DOOMED TO DIE 

     THAT BLOOMED IN EARLY MORNING, ERE THE DUSK RIDES DOWN THE
SKY?"  "HE NEVER HEARD OF CASEY" GRANTLAND RICE, THE SPORTLIGHT, NEW
YORK HERALD TRIBUNE, JUNE 1, 1926, P. 23. 

/5/  "THESE ARE THE SADDEST OF POSSIBLE WORDS, 

"TINKER TO EVERS TO CHANCE.' 

TRIO OF BEAR CUBS, AND FLEETER THAN BIRDS,

  'TINKER TO EVERS TO CHANCE.' 

RUTHLESSLY PRICKING OUR GONFALON BUBBLE,

  MAKING A GIANT HIT INTO A DOUBLE-- WORDS THAT ARE WEIGHTY WITH
NOTING BUT TROUBLE: 'TINKER TO

  EVERS TO CHANCE.'"  FRANKLIN PIERCE ADAMS, BASEBALL'S SAD
LEXICON. 

/6/  GEORGE BERNARD SHAW, THE SPORTING NEWS, MAY 27, 1943, P. 15,
COL. 4. 

/7/  CONCEDEDLY SUPPORTED BY THE MAJOR LEAGUE BASEBALL PLAYERS
ASSOCIATION, THE PLAYERS' COLLECTIVE-BARGAINING REPRESENTATIVE.  TR. OF
ORAL ARG. 12. 

/8/  THE PARTIES AGREED THAT FLOOD'S PARTICIPATING IN BASEBALL IN
1971 WOULD BE WITHOUT PREJUDICE TO HIS CASE. 

/9/  "AND PROPERLY SO.  BASEBALL'S WELFARE AND FUTURE SHOULD NOT BE
FOR POLITICALLY INSULATED INTERPRETERS OF TECHNICAL ANTITRUST STATUTES
BUT RATHER SHOULD BE FOR THE VOTERS THROUGH THEIR ELECTED
REPRESENTATIVES.  IF BASEBALL IS TO BE DAMAGED BY STATUTORY REGULATION,
LET THE CONGRESSMAN FACE HIS CONSTITUENTS THE NEXT NOVEMBER AND ALSO
FACE THE CONSEQUENCES OF HIS BASEBALL VOTING RECORD."  443 F.2D,AT
272. 

CF. JUDGE FRIENDLY'S COMMENTS IN SALERNO V. AMERICAN LEAGUE, 429
F.2D 1003, 1005 (CA2 1970), CERT. DENIED, SUB NOM. SALERNO V. KUHN, 400
U.S. 1001 (1971): 

"WE FREELY ACKNOWLEDGE OUR BELIEF THAT FEDERAL BASEBALL WAS NOT ONE
OF MR. JUSTICE HOLMES' HAPPIEST DAYS, THAT THE RATIONALE OF TOOLSON IS
EXTREMELY DUBIOUS AND THAT, TO USE THE SUPREME COURT'S OWN ADJECTIVES,
THE DISTINCTION BETWEEN BASEBALL AND OTHER PROFESSIONAL SPORTS IS
'UNREALISTIC,' 'INCONSISTENT' AND 'ILLOGICAL.'  . . . WHILE WE SHOULD
NOT FALL OUT OF OUR CHAIRS WITH SURPRISE AT THE NEWS THAT FEDERAL
BASEBALL AND TOOLSON HAD BEEN OVERRULED, WE ARE NOT AT ALL CERTAIN THE
COURT IS READY TO GIVE THEM A HAPPY DESPATCH." 

/10/  "WHAT REALLY SAVED BASEBALL, LEGALLY AT LEAST, FOR THE NEXT
HALF CENTURY WAS THE PROTECTIVE CANOPY SPREAD OVER IT BY THE UNITED
STATES SUPREME COURT'S DECISION IN THE BALTIMORE FEDERAL LEAGUE
ANTITRUST SUIT AGAINST ORGANIZED BASEBALL IN 1922.  IN IT JUSTICE
HOLMES, SPEAKING FOR A UNANIMOUS COURT, RULED THAT THE BUSINESS OF
GIVING BASEBALL EXHIBITIONS FOR PROFIT WAS NOT 'TRADE OR COMMERCE IN
THE COMMONLY-ACCEPTED USE OF THOSE WORDS' BECAUSE 'PERSONAL EFFORT, NOT
RELATED TO PRODUCTION, IS NOT A SUBJECT OF COMMERCE'; NOR WAS IT
INTERSTATE, BECAUSE THE MOVEMENT OF BALL CLUBS ACROSS STATE LINES WAS
MERELY 'INCIDENTAL' TO THE BUSINESS.  IT SHOULD BE NOTED THAT, CONTRARY
TO WHAT MANY BELIEVE, HOLMES DID CALL BASEBALL A BUSINESS; TIME AND
AGAIN THOSE WHO HAVE NOT TROUBLED TO READ THE TEXT OF THE DECISION HAVE
CLAIMED INCORRECTLY THAT THE COURT SAID BASEBALL WAS A SPORT AND NOT A
BUSINESS."  2 H.SEYMOUR,BASEBALL 420 (1971). 

/11/  ON REMAND OF THE HART CASE THE TRIAL COURT DISMISSED THE
COMPLAINT AT THE CLOSE OF THE EVIDENCE.  THE SECOND CIRCUIT AFFIRMED ON
THE GROUND THAT THE PLAINTIFF'S EVIDENCE FAILED TO ESTABLISH THAT THE
INTERSTATE TRANSPORTATION WAS MORE THAN INCIDENTAL.  12 F.2D 341
(1926).  THIS COURT DENIED CERTIORARI, 273 U.S. 703 (1926). 

/12/  TOOLSON V. NEW YORK YANKEES, INC., 101 F.SUPP.  93 (SD CAL.
1951), AFF'D, 200 F.2D 198 (CA9 1952); KOWALSKI V. CHANDLER, 202 F.2D
413 (CA6 1953).  SEE SALERNO V. AMERICAN LEAGUE, 429 F.2D 1003 (CA2
1970), CERT. DENIED, SUB NOM. SALERNO V. KUHN, 400 U.S. 1001 (1971). 
BUT CF. GARDELLA V. CHANDLER, 172 F.2D 402 (CA2 1949) (THIS CASE, WE
ARE ADVISED, WAS SUBSEQUENTLY SETTLED); MARTIN V. NATIONAL LEAGUE
BASEBALL CLUB, 174 F.2D 917 (CA2 1949). 

/13/  CORBETT V. CHANDLER, 202 F.2D 428 (CA6 1953); PORTLAND
BASEBALL CLUB, INC. V. BALTIMORE BASEBALL CLUB, INC., 282 F.2D 680 (CA9
1960); NIEMIEC V. SEATTLE RAINIER BASEBALL CLUB, INC., 67 F.SUPP.  705
(WD WASH. 1946).  SEE STAT V. MILWAUKEE BRAVES, INC., 31 WIS.2 699, 144
N.W.2D 1, CERT. DENIED, 385 U.S. 990 (1966). 

/14/  THE CASE'S FINAL CHAPTER IS INTERNATIONAL BOXING CLUB V.
UNITED STATES, 358 U.S. 242 (1959). 

/15/  SEE ALSO DENVER ROCKETS V. ALL-PRO MANAGEMENT, INC., 325
F.SUPP.  1049, 1060 (CD CAL. 1971); WASHINGTON PROFESSIONAL BASKETBALL
CORP. V. NATIONAL BASKETBALL ASSN., 147 F.SUPP.  154 (SDNY 1956). 

/16/  NEVILLE, BASEBALL AND THE ANTITRUST LAWS, 16 FORDHAM L.REV. 
208 (1947); ECKLER, BASEBALL-- SPORT OR COMMERCE?, 17 U.CHI.L.REV.  56
(1949); COMMENT, MONOPSONY IN MANPOWER:  ORGANIZED BASEBALL MEETS THE
ANTITRUST LAWS, 62 YALEL.J. 576 (1953); P. GEGORY, THE BASEBALL PLAYER,
AN ECONOMIC STUDY, C. 19 (1956); NOTE, THE SUPER BOWL AND THE SHERMAN
ACT:  PROFESSIONAL TEAM SPORTS AND THE ANTITRUST LAWS, 81 HARV.L.REV. 
418 (1967); THE SUPREME COURT, 1953 TERM, 68 HARV.L.REV.  105, 136-138
(1954); THE SUPREME COURT, 1956 TERM, 71 HARV.L.REV.  94, 170-173
(1957); NOTE, 32 VA.L.REV.  1164 (1946); NOTE, 24 NOTRE DAME LAW.  372
(1949); NOTE, 53 COL.L.REV.  242 (1953); NOTE, 22 U.KAN.CITYL.REV.  173
(1954); NOTE, 25 MISS.L.J. 270 (1954); NOTE, 29 N.Y.U.L.REV.  213
(1954); NOTE, 105 U.PA.L.REV.  110 (1956); NOTE, 32 TEXAS L.REV.  890
(1954); NOTE, 35 B.U.L.REV.  447 (1955); NOTE, 57 COL.L.REV.  725
(1957); NOTE, 23 GEO.WASH.L.REV.  606 (1955); NOTE, 1 HOW.L.J. 281
(1955); NOTE, 26 MISS.L.J. 271 (1955); NOTE, 9 SW.L.J. 369 (1955);
NOTE, 29 TEMPLE L.Q. 103 (1955); NOTE, 29 TUL.L.REV.  793 (1955); NOTE,
62 DICK.L.REV.  96 (1957); NOTE, 11 SW.L.J. 516 (1957); NOTE, 36
N.C.L.REV.  315 (1958); NOTE, 35 FORDHAM L.REV.  350 (1966); NOTE, 8
B.C.IND.&COM.L.REV.  341 (1967); NOTE, 13 WAYNE L.REV.  417 (1967);
NOTE, 2 RUTGERS-CAMDEN L.J. 302 (1970); NOTE, 8 SANDIEGO L.REV.  92
(1970); NOTE, 12 B.C.IND.&COM.L.REV.  737 (1971); NOTE, 12
WM.&MARYL.REV.  859 (1971). 

/17/  HEARINGS ON H.R. 5307 ET AL. BEFORE THE ANTITRUST SUBCOMMITTEE
OF THE HOUSE COMMITTEE ON THE JUDICIARY, 85TH CONG., 1ST SESS. (1957);
HEARINGS ON H.R. 10378 AND S. 4070 BEFORE THE SUBCOMMITTEE ON ANTITRUST
AND MONOPOLY OF THE SENATE COMMITTEE ON THE JUDICIARY, 85TH CONG., 2D
SESS. (1958); HEARINGS ON H.R. 2370 ET AL. BEFORE THE ANTITRUST
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY, 86TH CONG., 1ST
SESS. (1959) (NOT PRINTED); HEARINGS ON S. 616 AND S. 886 BEFORE THE
SUBCOMMITTEE ON ANTITRUST AND MONOPOLY OF THE SENATE COMMITTEE ON THE
JUDICIARY, 86TH CONG., 1ST SESS. (1959); HEARINGS ON S. 3483 BEFORE THE
SUBCOMMITTEE ON ANTITRUST AND MONOPOLY OF THE SENATE COMMITTEE ON THE
JUDICIARY, 86TH CONG., 2D SESS. (1960); HEARINGS ON S. 2391 BEFORE THE
SUBCOMMITTEE ON ANTITRUST AND MONOPOLY OF THE SENATE COMMITTEE ON THE
JUDICIARY, 88TH CONG., 2D SESS. (1964); S. REP. NO. 1303, 88TH CONG.,
2D SESS. (1964); HEARINGS ON S. 950 BEFORE THE SUBCOMMITTEE ON
ANTITRUST AND MONOPOLY OF THE SENATE COMMITTEE ON THE JUDICIARY, 89TH
CONG., 1ST SESS. (1965); S. REP. NO. 462, 89TH CONG., 1ST SESS.
(1965).  BILLS INTRODUCED IN THE 92D CONG., 1ST SESS., AND BEARING ON
THE SUBJECT ARE S. 2599, S. 2616, HR. 2305, H.R. 11033, AND H.R.
10825. 

/18/  TITLE 15 U.S.C. 1294 READS: 

"NOTHING CONTAINED IN THIS CHAPTER SHALL BE DEEMED TO CHANGE,
DETERMINE, OR OTHERWISE AFFECT THE APPLICABILITY OR NONAPPLICABILITY OF
THE ANTITRUST LAWS TO ANY ACT, CONTRACT, AGREEMENT, RULE, COURSE OF
CONDUCT, OR OTHER ACTIVITY BY, BETWEEN, OR AMONG PERSONS ENGAGING IN,
CONDUCTING, OR PARTICIPATING IN THE ORGANIZED PROFESSIONAL TEAM SPORTS
OF FOOTBALL, BASEBALL, BASKETBALL, OR HOCKEY, EXCEPT THE AGREEMENTS TO
WHICH SECTION 1291 OF THIS TITLE SHALL APPLY." 

/19/  PETO V. MADISON SQUARE GARDEN CORP., 1958 TRADE CASES, PARA.
69,106 (SDNY 1958). 

/20/  DEESEN V. PROFESSIONAL GOLFERS' ASSN., 358 F.2D 165 (CA9),
CERT. DENIED, 385 U.S. 846 (1966). 

/21/  SEE BRIEF FOR RESPONDENT IN FEDERAL BASEBALL, NO. 204, O.T.
1921, P. 67, AND IN TOOLSON, NO. 18, O.T. 1953, P. 30.  SEE ALSO STATE
V. MILWAUKEE BRAVES, INC., 31 WIS.2D 699, 144 N.W.2D 1, CERT. DENIED,
385 U.S. 990 (1966). 

/22/  SEE JACOBS & WINTER, ANTITRUST PRINCIPLES AND COLLECTIVE
BARGAINING BY ATHLETES:  OF SUPERSTARS IN PEONAGE, 81 YALE L.J. 1
(1971), SUGGESTING PRESENT-DAY IRRELEVANCY OF THE ANTITRUST ISSUE. 

MR. JUSTICE WHITE JOINS IN THE JUDGMENT OF THE COURT, AND IN ALL BUT
PART I OF THE COURT'S OPINION. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I CONCUR IN ALL BUT PART I OF THE COURT'S OPINION BUT, LIKE MR.
JUSTICE DOUGLAS, I HAVE GRAVE RESERAVTIONS AS TO THE CORRECTNESS OF
TOOLSON V. NEW YORK YANKEES, INC., 346 U.S. 356 (1953); AS HE NOTES IN
HIS DISSENT, HE JOINED THAT HOLDING BUT HAS "LIVED TO REGRET IT."  THE
ERROR, IF SUCH IT BE, IS ONE ON WHICH THE AFFAIRS OF A GREAT MANY
PEOPLE HAVE RESTED FOR A LONG TIME.  COURTS ARE NOT THE FORUM IN WHICH
THIS TANGLED WEB OUGHT TO BE UNSNARLED.  I AGREE WITH MR. JUSTICE
DOUGLAS THAT CONGRESSIONAL INACTION IS NOT A SOLID BASE, BUT THE LEAST
UNDESIRABLE COURSE NOW IS TO LET THE MATTER REST WITH CONGRESS; IT IS
TIME THE CONGRESS ACTED TO SOLVE THIS PROBLEM. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

THIS COURT'S DECISION IN FEDERAL BASEBALL CLUB V. NATIONAL LEAGUE,
259 U.S. 200, MADE IN 1922, IS A DERELICT IN THE STREAM OF THE LAW THAT
WE, ITS CREATOR, SHOULD REMOVE.  ONLY A ROMANTIC VIEW /1/  OF A RATHER
DISMAL BUSINESS ACCOUNT OVER THE LAST 50 YEARS WOULD KEEP THAT DERELICT
IN MIDSTREAM. 

IN 1922 THE COURT HAD A NARROW, PAROCHIAL VIEW OF COMMERCE.  WITH
THE DEMISE OF THE OLD LANDMARKS OF THAT ERA, PARTICULARLY UNITED STATES
V. KNIGHT CO., 156 U.S. 1, HAMMER V. DAGENHART, 247 U.S. 251, AND PAUL
V. VIRGINIA, 8 WALL.  168, THE WHOLE CONCEPT OF COMMERCE HAS CHANGED. 

UNDER THE MODERN DECISIONS SUCH AS MANDEVILLE ISLAND FARMS V.
AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219; UNITED STATES V. DARBY, 312
U.S. 100; WICKARD V. FILBURN, 317 U.S. 111; UNITED STATES V. SOUTH
EASTERN UNDERWRITERS ASSN., 322 U.S. 533, THE POWER OF CONGRESS WAS
RECOGNIZED AS BROAD ENOUGH TO REACH ALL PHASES OF THE VAST OPERATIONS
OF OUR NATIONAL INDUSTRIAL SYSTEM.  AN INDUSTRY SO DEPENDENT ON RADIO
AND TELEVISION AS IS BASEBALL AND GLEANING VAST INTERSTATE REVENUES
(SEE H.R. REP. NO. 2002, 82D CONG., 2D SESS., 4, 5 (1952)) WOULD BE
HARD PUT TODAY TO SAY WITH THE COURT IN THE FEDERAL BASEBALL CLUB CASE
THAT BASEBALL WAS ONLY A LOCAL EXHIBITION, NOT TRADE OR COMMERCE. 
BASEBALL IS TODAY BIG BUSINESS THAT IS PACKAGED WITH BEER, WITH
BROADCASTING, AND WITH OTHER INDUSTRIES.  THE BENEFICIARIES OF THE
FEDERAL BASEBALL CLUB DECISION ARE NOT THE BABE RUTHS, TY COBBS, AND
LOU GEHRIGS. 

THE OWNERS, WHOSE RECORDS MANY SAY REVEAL A PROCLIVITY FOR PREDATORY
PRACTICES, DO NOT COME TO US WITH EQUITIES.  THE EQUITIES ARE WITH THE
VICTIMS OF THE RESERVE CLAUSE.  I USE THE WORD "VICTIMS" IN THE SHERMAN
ACT SENSE, SINCE A CONTRACT WHICH FORBIDS ANYONE TO PRACTICE HIS
CALLING IS COMMONLY CALLED AN UNREASONABLE RESTRAINT OF TRADE.  /2/
GARDELLA V. CHANDLER, 172 F.2D 402 (CA2).  AND SEE HAYWOOD V. NATIONAL
BASKETBALL ASSN., 401 U.S. 1204 (DOUGLAS, J., IN CHAMBERS). 

IF CONGRESSIONAL INACTION IS OUR GUIDE, WE SHOULD RELY UPON THE FACT
THAT CONGRESS HAS REFUSED TO ENACT BILLS BROADLY EXEMPTING PROFESSIONAL
SPORTS FROM ANTITRUST REGULATION.  /3/  H.R. REP. NO. 2002, 82D CONG.,
2D SESS. (1952).  THE ONLY STATUTORY EXEMPTION GRANTED BY CONGRESS IS
PROFESSIONAL SPORTS CONCERNS BROADCASTING RIGHTS.  15 U.S.C. 1291
1295.  I WOULD NOT ASCRIBE A BROADER EXEMPTION THROUGH INACTION THAN
CONGRESS HAS SEEN FIT TO GRANT EXPLICITLY. 

THERE CAN BE NO DOUBT "THAT WERE WE CONSIDERING THE QUESTION OF
BASEBALL FOR THE FIRST TIME UPON A CLEAN SLATE"  /4/  WE WOULD HOLD IT
TO BE SUBJECT TO FEDERAL ANTITRUST REGULATION.  RADOVICH V. NATIONAL
FOOTBALL LEAGUE, 352 U.S. 445, 452.  THE UNBROKEN SILENCE OF CONGRESS
SHOULD NOT PREVENT US FROM CORRECTING OUR OWN MISTAKES. 

/1/  WHILE I JOINED THE COURT'S OPINION IN TOOLSON V. NEW YORK
YANKEES, INC., 346 U.S. 356, I HAVE LIVED TO REGRET IT; AND I WOULD NOW
CORRECT WHAT I BELIEVE TO BE ITS FUNDAMENTAL ERROR. 

/2/  HAD THIS SAME GROUP BOYCOTT OCCURRED IN ANOTHER INDUSTRY,
KLOR'S, INC. V. BROADWAY-HALE STORES, INC., 359 U.S. 207; UNITED STATES
V. SHUBERT, 348 U.S. 222; OR EVEN IN ANOTHER SPORT, HAYWOOD V. NATIONAL
BASKETBALL ASSN., 401 U.S. 1204 (DOUGLAS, J., IN CHAMBERS); RADOVICH V.
NATIONAL FOOTBALL LEAGUE, 352 U.S. 445; UNITED STATES V. INTERNATIONAL
BOXING CLUB, 348 U.S. 236; WE WOULD HAVE NO DIFFICULTY IN SUSTAINING
PETITIONER'S CLAIM. 

/3/  THE COURT'S RELIANCE UPON CONGRESSIONAL INACTION DISREGARDS THE
WISDOM OF HELVERING V. HALLOCK, 309 U.S. 106, 119-121, WHERE WE SAID: 

"NOR DOES WANT OF SPECIFIC CONGRESSIONAL REPUDIATIONS . . . SERVE AS
AN IMPLIED INSTRUCTION BY CONGRESS TO US NOT TO RECONSIDER, IN THE
LIGHT OF NEW EXPERIENCE . . . THOSE DECISIONS.  . . . IT WOULD REQUIRE
VERY PERSUASIVE CIRCUMSTANCES ENVELOPING CONGRESSIONAL SILENCE TO DEBAR
THIS COURT FROM RE-EXAMINING ITS OWN DOCTRINES.  . . . VARIOUS
CONSIDERATIONS OF PARLIAMENTARY TACTICS AND STRATEGY MIGHT BE SUGGESTED
AS REASONS FOR THE INACTION OF . . . CONGRESS, BUT THEY WOULD ONLY BE
SUFFICIENT TO INDICATE THAT WE WALK ON QUICKSAND WHEN WE TRY TO FIND IN
THE ABSENCE OF CORRECTIVE LEGISLATION A CONTROLLING LEGAL PRINCIPLE." 

AND SEE UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S.
533, 556-561. 

/4/  THIS CASE GIVES US FOR THE FIRST TIME A FULL RECORD SHOWING THE
RESERVE CLAUSE IN ACTUAL OPERATION. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

PETITIONER WAS A MAJOR LEAGUE BASEBALL PLAYER FROM 1956, WHEN HE
SIGNED A CONTRACT WITH THE CINCINNATI REDS, UNTIL 1969, WHEN HIS 12
YEAR CAREER WITH THE ST. LOUIS CARDINALS, WHICH HAD OBTAINED HIM FROM
THE REDS, ENDED AND HE WAS TRADED TO THE PHILADELPHIA PHILLIES.  HE HAD
NO NOTICE THAT THE CARDINALS WERE CONTEMPLATING A TRADE, NO OPPORTUNITY
TO INDICATE THE TEAMS WITH WHICH HE WOULD PREFER PLAYING, AND NO DESIRE
TO GO TO PHILADELPHIA.  AFTER RECEIVING FORMAL NOTIFICATION OF THE
TRADE, PETITIONER WROTE TO THE COMMISSIONER OF BASEBALL PROTESTING THAT
HE WAS NOT "A PIECE OF PROPERTY TO BE BOUGHT AND SOLD IRRESPECTIVE OF
MY WISHES,"  /1/  AND URGING THAT HE HAD THE RIGHT TO CONSIDER OFFERS
FROM OTHER TEAMS THAN THE PHILLIES.  HE REQUESTED THAT THE COMMISSIONER
INFORM ALL OF THE MAJOR LEAGUE TEAMS THAT HE WAS AVAILABLE FOR THE 1970
SEASON.  HIS REQUEST WAS DENIED, AND PETITIONER WAS INFORMED THAT HE
HAD NO CHOICE BUT TO PLAY FOR PHILADELPHIA OR NOT TO PLAY AT ALL. 

TO NON-ATHLETES IT MIGHT APPEAR THAT PETITIONER WAS VIRTUALLY
ENSLAVED BY THE OWNERS OF MAJOR LEAGUE BASEBALL CLUBS WHO BARTERED
AMONG THEMSELVES FOR HIS SERVICES.  BUT, ATHLETES KNOW THAT IT WAS NOT
SERVITUDE THAT BOUND PETITIONER TO THE CLUB OWNERS; IT WAS THE RESERVE
SYSTEM.  THE ESSENCE OF THAT SYSTEM IS THAT A PLAYER IS BOUND TO THE
CLUB WITH WHICH HE FIRST SIGNS A CONTRACT FOR THE REST OF HIS PLAYING
DAYS.  /2/  HE CANNOT ESCAPE FROM THE CLUB EXCEPT BY RETIRING, AND HE
CANNOT PREVENT THE CLUB FROM ASSIGNING HIS CONTRACT TO ANY OTHER CLUB. 

PETITIONER BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK.  HE ALLEGED, AMONG OTHER THINGS,
THAT THE RESERVE SYSTEM WAS AN UNREASONABLE RESTRAINT OF TRADE IN
VIOLATION OF FEDERAL ANTITRUST LAWS.  /3/  THE DISTRICT COURT THOUGHT
ITSELF BOUND BY PRIOR DECISIONS OF THIS COURT AND FOUND FOR THE
RESPONDENTS AFTER A FULL TRIAL.  309 F.SUPP.  793 (1970).  THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  443 F.2D 264
(1971).  WE GRANTED CERTIORARI ON OCTOBER 19, 1971, 404 U.S. 880, IN
ORDER TO TAKE A FURTHER LOOK AT THE PRECEDENTS RELIED UPON BY THE LOWER
COURTS. 

THIS IS A DIFFICULT CASE BECAUSE WE ARE TORN BETWEEN THE PRINCIPLE
OF STARE DECISIS AND THE KNOWLEDGE THAT THE DECISIONS IN FEDERAL
BASEBALL CLUB V. NATIONAL LEAGUE, 259 U.S. 200 (1922), AND TOOLSON V.
NEW YORK YANKEES, INC., 346 U.S. 356 (1953), ARE TOTALLY AT ODDS WITH
MORE RECENT AND BETTER REASONED CASES. 

IN FEDERAL BASEBALL CLUB, A TEAM IN THE FEDERAL LEAGUE BROUGHT AN
ANTITRUST ACTION AGAINST THE NATIONAL AND AMERICAN LEAGUES AND OTHERS. 
IN HIS OPINION FOR A UNANIMOUS COURT, MR. JUSTICE HOLMES WROTE THAT THE
BUSINESS BEING CONSIDERED WAS "GIVING EXHIBITIONS OF BASE BALL, WHICH
ARE PURELY STATE AFFAIRS."  259 U.S.,AT 208.  HENCE, THE COURT HELD
THAT BASEBALL WAS NOT WITHIN THE PURVIEW OF THE ANTITRUST LAWS.  THIRTY
ONE YEARS LATER, THE COURT REAFFIRMED THIS DECISION, WITHOUT RE
EXAMINING IT, IN TOOLSON, A ONE-PARAGRAPH PER CURIAM OPINION.  LIKE
THIS CASE, TOOLSON INVOLVED AN ATTACK ON THE RESERVE SYSTEM.  THE COURT
SAID: 

"THE BUSINESS HAS . . . 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." 
ID., AT 357. 

MUCH MORE TIME HAS PASSED SINCE TOOLSON AND CONGRESS HAS NOT ACTED. 
WE MUST NOW DECIDE WHETHER TO ADHERE TO THE REASONING OF TOOLSON--
I.E., TO REFUSE TO RE-EXAMINE THE UNDERLYING BASIS OF FEDERAL BASEBALL
CLUB-- OR TO PROCEED WITH A RE-EXAMINATION AND LET THE CHIPS FALL WHERE
THEY MAY. 

IN HIS ANSWER TO PETITIONER'S COMPLAINT, THE COMMISSIONER OF
BASEBALL "ADMITS THAT UNDER PRESENT CONCEPTS OF INTERSTATE COMMERCE
DEFENDANTS ARE ENGAGED THEREIN."  APP. 40.  THERE CAN BE NO DOUBT THAT
THE ADMISSION IS WARRANTED BY TODAY'S REALITY.  SINCE BASEBALL IS
INTERSTATE COMMERCE, IF WE RE-EXAMINE BASEBALL'S ANTITRUST EXEMPTION,
THE COURT'S DECISIONS IN UNITED STATES V. SHUBERT, 348 U.S. 222 (1955),
UNITED STATES V. INTERNATIONAL BOXING CLUB, 348 U.S. 236 (1955), AND
RADOVICH V. NATIONAL FOOTBALL LEAGUE, 352 U.S. 445 (1957), REQUIRE THAT
WE BRING BASEBALL WITHIN THE COVERAGE OF THE ANTITRUST LAWS.  SEE ALSO,
HAYWOOD V. NATIONAL BASKETBALL ASSN., 401 U.S. 1204 (DOUGLAS, J., IN
CHAMBERS). 

WE HAVE ONLY RECENTLY HAD OCCASION TO COMMENT THAT: 

     "ANTITRUST LAWS IN GENERAL, AND THE SHERMAN ACT IN PARTICULAR,

  ARE THE MAGNA CARTA OF FREE ENTERPRISE.  THEY ARE AS IMPORTANT TO

  THE PRESERVATION OF ECONOMIC FREEDOM AND OUR FREE-ENTERPRISE

SYSTEM AS THE BILL OF RIGHTS IS TO THE PROTECTION OF OUR

 FUNDAMENTAL PERSONAL FREEDOMS.  . . . IMPLICIT IN SUCH FREEDOM IS

  THE NOTION THAT IT CANNOT BE FORECLOSED WITH RESPECT TO ONE

  SECTOR OF THE ECONOMY BECAUSE CERTAIN PRIVATE CITIZENS OR GROUPS

  BELIEVE THAT SUCH FORECLOSURE MIGHT PROMOTE GREATER COMPETITION

  IN A MORE IMPORTANT SECTOR OF THE ECONOMY."  UNITED STATES V.

  TOPCO ASSOCIATES, INC., 405 U.S. 596, 610 (1972). 

THE IMPORTANCE OF THE ANTITRUST LAWS TO EVERY CITIZEN MUST NOT BE
MINIMIZED.  THEY ARE AS IMPORTANT TO BASEBALL PLAYERS AS THEY ARE TO
FOOTBALL PLAYERS, LAWYERS, DOCTORS, OR MEMBERS OF ANY OTHER CLASS OF
WORKERS.  BASEBALL PLAYERS CANNOT BE DENIED THE BENEFITS OF COMPETITION
MERELY BECAUSE CLUB OWNERS VIEW OTHER ECONOMIC INTERESTS AS BEING MORE
IMPORTANT, UNLESS CONGRESS SAYS SO. 

HAS CONGRESS ACQUIESCED IN OUR DECISIONS IN FEDERAL BASEBALL CLUB
AND TOOLSON?  I THINK NOT.  HAD THE COURT BEEN CONSISTENT AND TREATED
ALL SPORTS IN THE SAME WAY BASEBALL WAS TREATED, CONGRESS MIGHT HAVE
BECOME CONCERNED ENOUGH TO TAKE ACTION.  BUT, THE COURT WAS
INCONSISTENT, AND BASEBALL WAS ISOLATED AND DISTINGUISHED FROM ALL
OTHER SPORTS.  IN TOOLSON THE COURT REFUSED TO ACT BECAUSE CONGRESS HAD
BEEN SILENT.  BUT THE COURT MAY HAVE READ TOO MUCH INTO THIS
LEGISLATIVE INACTION. 

AMERICANS LOVE BASEBALL AS THEY LOVE ALL SPORTS.  PERHAPS WE BECOME
SO ENAMORED OF ATHLETICS THAT WE ASSUME THAT THEY ARE FOREMOST IN THE
MINDS OF LEGISLATORS AS WELL AS FANS.  WE MUST NOT FORGET, HOWEVER,
THAT THERE ARE ONLY SOME 600 MAJOR LEAGUE BASEBALL PLAYERS.  WHATEVER
MUSCLE THEY MIGHT HAVE BEEN ABLE TO MUSTER BY COMBINING FORCES WITH
OTHER ATHLETES HAS BEEN GREATLY IMPAIRED BY THE MANNER IN WHICH THIS
COURT HAS ISOLATED THEM.  IT IS THIS COURT THAT HAS MADE THEM IMPOTENT,
AND THIS COURT SHOULD CORRECT ITS ERROR. 

WE DO NOT LIGHTLY OVERRULE OUR PRIOR CONSTRUCTIONS OF FEDERAL
STATUTES, BUT WHEN OUR ERRORS DENY SUBSTANTIAL FEDERAL RIGHTS, LIKE THE
RIGHT TO COMPETE FREELY AND EFFECTIVELY TO THE BEST OF ONE'S ABILITY AS
GUARANTEED BY THE ANTITRUST LAWS, WE MUST ADMIT OUR ERROR AND CORRECT
IT.  WE HAVE DONE SO BEFORE AND WE SHOULD DO SO AGAIN HERE.  SEE E.G.,
BLONDER-TONGUE LABORATORIES, INC. V. UNIVERSITY OF ILLINOIS FOUNDATION,
402 U.S. 313 (1971); BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398
U.S. 235, 241 (1970).  /4/ 

TO THE EXTENT THAT THERE IS CONCERN OVER ANY RELIANCE INTERESTS THAT
CLUB OWNERS MAY ASSERT, THEY CAN BE SATISFIED BY MAKING OUR DECISION
PROSPECTIVE ONLY.  BASEBALL SHOULD BE COVERED BY THE ANTITRUST LAWS
BEGINNING WITH THIS CASE AND HENCEFORTH, UNLESS CONGRESS DECIDES
OTHERWISE.  /5/ 

ACCORDINGLY, I WOULD OVERRULE FEDERAL BASEBALL CLUB AND TOOLSON AND
RESERVE THE DECISION OF THE COURT OF APPEALS.  /6/ 

THIS DOES NOT MEAN THAT PETITIONER WOULD NECESSARILY PREVAIL,
HOWEVER.  LURKING IN THE BACKGROUND IS A HURDLE OF RECENT VINTAGE THAT
PETITIONER STILL MUST OVERCOME.  IN 1966, THE MAJOR LEAGUE PLAYERS
ASSOCIATION WAS FORMED.  IT IS THE COLLECTIVE-BARGAINING REPRESENTATIVE
FOR ALL MAJOR LEAGUE BASEBALL PLAYERS.  RESPONDENTS ARGUE THAT THE
RESERVE SYSTEM IS NOW PART AND PARCEL OF THE COLLECTIVE-BARGAINING
AGREEMENT AND THAT BECAUSE IT IS A MANDATORY SUBJECT OF BARGAINING, THE
FEDERAL LABOR STATUTES ARE APPLICABLE, NOT THE FEDERAL ANTITRUST LAWS. 
/7/  THE LOWER COURTS DID NOT RULE ON THIS ARGUMENT, HAVING DECIDED THE
CASE SOLELY ON THE BASIS OF THE ANTITRUST EXEMPTION. 

THIS COURT HAS FACED THE INTERRELATIONSHIP BETWEEN THE ANTITRUST
LAWS AND THE LABOR LAWS BEFORE.  THE DECISIONS MAKE SEVERAL THINGS
CLEAR.  FIRST, "BENEFITS TO ORGANIZED LABOR CANNOT BE UTILIZED AS A
CAT'S-PAW TO PULL EMPLOYER'S CHESTNUTS OUT OF THE ANTITRUST FIRES." 
UNITED STATES V. WOMEN'S SPORTSWEAR MANUFACTURERS ASSN., 336 U.S. 460,
464 (1949).  SEE ALSO ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, 325 U.S.
797 (1945).  SECOND, THE VERY NATURE OF A COLLECTIVE-BARGAINING
AGREEMENT MANDATES THAT THE PARTIES BE ABLE TO "RESTRAIN" TRADE TO A
GREATER DEGREE THAN MANAGEMENT COULD DO UNILATERALLY.  UNITED STATES V.
HUTCHESON, 312 U.S. 219 (1941); UNITED MINE WORKERS V. PENNINGTON, 381
U.S. 657 (1965); AMALGAMATED MEAT CUTTERS V. JEWEL TEA, 381 U.S. 676
(1965); CF., TEAMSTERS UNION V. OLIVER, 358 U.S. 283 (1959).  FINALLY,
IT IS CLEAR THAT SOME CASES CAN BE RESOLVED ONLY BY EXAMINING THE
PURPOSES AND THE COMPETING INTERESTS OF THE LABOR AND ANTITRUST
STATUTES AND BY STRIKING A BALANCE. 

IT IS APPARENT THAT NONE OF THE PRIOR CASES IS PRECISELY IN POINT. 
THEY INVOLVE UNION-MANAGEMENT AGREEMENTS THAT WORK TO THE DETRIMENT OF
MANAGEMENT'S COMPETITORS.  IN THIS CASE, PETITIONER URGES THAT THE
RESERVE SYSTEM WORKS TO THE DETRIMENT OF LABOR. 

WHILE THERE WAS EVIDENCE AT TRIAL CONCERNING THE COLLECTIVE
BARGAINING RELATIONSHIP OF THE PARTIES, THE ISSUES SURROUNDING THAT
RELATIONSHIP HAVE NOT BEEN FULLY EXPLORED.  AS ONE COMMENTARY HAS
SUGGESTED, THIS CASE "HAS BEEN LITIGATED WITH THE IMPLICATIONS FOR THE
INSTITUTION OF COLLECTIVE BARGAINING ONLY DIMLY PERCEIVED.  THE LABOR
LAW ISSUES HAVE BEEN IN THE CORNERS OF THE CASE-- THE COURTS BELOW, FOR
EXAMPLE, DID NOT REACH THEM-- MOVING IN AND OUT OF THE SHADOWS LIKE AN
UNINVITED GUEST AT A PARTY WHOM ONE CAN'T DECIDE EITHER TO EMBRACE OR
EXPEL."  /8/ 

IT IS TRUE THAT IN RADOVICH V. NATIONAL FOOTBALL LEAGUE, SUPRA, THE
COURT REJECTED A CLAIM THAT FEDERAL LABOR STATUTES GOVERNED THE
RELATIONSHIP BETWEEN A PROFESSIONAL ATHLETE AND THE PROFESSIONAL
SPORT.  BUT, AN EXAMINATION OF THE BRIEFS AND RECORD IN THAT CASE
INDICATES THAT THE ISSUE WAS NOT SQUARELY FACED.  THE ISSUE IS ONCE
AGAIN BEFORE THIS COURT WITHOUT BEING CLEARLY FOCUSED.  IT SHOULD,
THEREFORE, BE THE SUBJECT OF FURTHER INQUIRY IN THE DISTRICT COURT. 
THERE IS A SURFACE APPEAL TO RESPONDENTS' ARGUMENT THAT PETITIONER'S
SOLE REMEDY LIES IN FILING A CLAIM WITH THE NATIONAL LABOR RELATIONS
BOARD, BUT THIS ARGUMENT IS PREMISED ON THE NOTION THAT MANAGEMENT AND
LABOR HAVE AGREED TO ACCEPT THE RESERVE CLAUSE.  THIS NOTION IS
CONTRADICTED, IN PART, BY THE RECORD IN THIS CASE.  PETITIONER SUGGESTS
THAT THE RESERVE SYSTEM WAS THRUST UPON THE PLAYERS BY THE OWNERS AND
THE RECENTLY FORMED PLAYERS' UNION HAS NOT HAD TIME TO MODIFY OR
ERADICATE IT.  IF THIS IS TRUE, THE QUESTION ARISES AS TO WHETHER THERE
WOULD THEN BE ANY EXEMPTION FROM THE ANTITRUST LAWS IN THIS CASE. 
PETITIONER ALSO SUGGESTS THAT THERE ARE LIMITS TO THE ANTITRUST
VIOLATIONS TO WHICH LABOR AND MANAGEMENT CAN AGREE.  THESE LIMITS
SHOULD ALSO BE EXPLORED. 

IN LIGHT OF THESE CONSIDERATIONS, I WOULD REMAND THIS CASE TO THE
DISTRICT COURT FOR CONSIDERATION OF WHETHER PETITIONER CAN STATE A
CLAIM UNDER THE ANTITRUST LAWS DESPITE THE COLLECTIVE-BARGAINING
AGREEMENT, AND, IF SO, FOR A DETERMINATION OF WHETHER THERE HAS BEEN AN
ANTITRUST VIOLATION IN THIS CASE. 

/1/  LETTER FROM CURT FLOOD TO BOWIE K. KUHN, DEC. 24, 1969, APP.
37. 

/2/  AS MR. JUSTICE BLACKMUN POINTS OUT, THE RESERVE SYSTEM IS NOT
NOVEL.  IT HAS BEEN EMPLOYED SINCE 1887.  SEE METROPOLITAN EXHIBITION
CO. V. EWING, 42 F. 198, 202-204 (CC SDNY 1890).  THE CLUB OWNERS
ASSERT THAT IT IS NECESSARY TO PRESERVE EFFECTIVE COMPETITION AND TO
RETAIN FAN INTEREST.  THE PLAYERS DO NOT AGREE AND ARGUE THAT THE
RESERVE SYSTEM IS OVERLY RESTRICTIVE.  BEFORE THIS LAWSUIT WAS
INSTITUTED, THE PLAYERS REFUSED TO AGREE THAT THE RESERVE SYSTEM SHOULD
BE A PART OF THE COLLECTIVE-BARGAINING CONTRACT.  INSTEAD, THE OWNERS
AND PLAYERS AGREED THAT THE RESERVE SYSTEM WOULD TEMPORARILY REMAIN IN
EFFECT WHILE THEY JOINTLY INVESTIGATED POSSIBLE CHANGES.  THEIR
ACTIVITY ALONG THESE LINES HAS HALTED PENDING THE OUTCOME OF THIS
SUIT. 

/3/  PETITIONER ALSO ALLEGED A VIOLATION OF STATE ANTITRUST LAWS,
STATE CIVIL RIGHTS LAWS, AND OF THE COMMON LAW, AND CLAIMED THAT HE WAS
FORCED INTO PEONAGE AND INVOLUNTARY SERVITUDE IN VIOLATION OF THE
THIRTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.  BECAUSE I
BELIEVE THAT FEDERAL ANTITRUST LAWS GOVERN BASEBALL, I FIND THAT STATE
LAW HAS BEEN PRE-EMPTED IN THIS AREA.  LIKE THE LOWER COURTS, I DO NOT
BELIEVE THAT THERE HAS BEEN A VIOLATION OF THE THIRTEENTH AMENDMENT. 

/4/  IN THE PAST THIS COURT HAS NOT HESITATED TO CHANGE ITS VIEW AS
TO WHAT CONSTITUTES INTERSTATE COMMERCE.  COMPARE UNITED STATES V.
KNIGHT CO., 156 U.S. 1 (1895), WITH MANDEVILLE ISLAND FARMS V. AMERICAN
CRYSTAL SUGAR CO., 334 U.S. 219 (1948), AND UNITED STATES V. DARBY, 312
U.S. 100 (1941). 

"THE JURIST CONCERNED WITH 'PUBLIC CONFIDENCE IN, AND ACCEPTANCE OF
THE JUDICIAL SYSTEM' MIGHT WELL CONSIDER THAT, HOWEVER ADMIRABLE ITS
RESOLUTE ADHERENCE TO THE LAW AS IT WAS, A DECISION CONTRARY TO THE
PUBLIC SENSE OF JUSTICE AS IT IS, OPERATES, SO FAR AS IT IS KNOWN, TO
DIMINISH RESPECT FOR THE COURTS AND FOR LAW ITSELF."  SZANTON, STARE
DECISIS; A DISSENTING VIEW, 10 HASTINGS L.J. 394, 397 (1959). 

/5/  WE SAID RECENTLY THAT "(IN RARE CASES, DECISIONS CONSTRUING
FEDERAL STATUTES MIGHT BE DENIED FULL RETROACTIVE EFFECT, AS FOR
INSTANCE WHERE THIS COURT OVERRULES ITS OWN CONSTRUCTION OF A STATUTE. 
. . . " UNITED STATES V. ESTATE OF DONNELLY, 397 U.S. 286, 295 (1970). 
CF. SIMPSON V. UNION OIL CO. OF CALIFORNIA, 377 U.S. 13, 25 (1964). 

/6/  THE LOWER COURTS DID NOT REACH THE QUESTION OF WHETHER,
ASSUMING THE ANTITRUST LAWS APPLY, THEY HAVE BEEN VIOLATED.  THIS
SHOULD BE CONSIDERED ON REMAND. 

/7/  CF. UNITED STATES V. HUTCHESON, 312 U.S. 219 (1941). 

/8/  JACOBS & WINTER, ANTITRUST PRINCIPLES AND COLLECTIVE BARGAINING
BY ATHLETES:  OF SUPERSTAR IN PEONAGE, 81 YALE L.J. 1, 22 (1971). 

ARTHUR J. GOLDBERG ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS JAY H. TOPKIS. 

PAUL A. PORTER ARGUED THE CAUSE FOR RESPONDENT KUHN.  LOUIS F.
HOYNES, JR., ARGUED THE CAUSE FOR RESPONDENTS FEENEY, PRESIDENT OF
NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUBS, ET AL. WITH THEM ON THE
BRIEF WERE MARK F. HUGHES, ALEXANDER H. HADDEN, JAMES P. GARNER, WARREN
DAANE, AND JEROME I. CHAPMAN. 
..END :






















UNITED STATES V. UNITED STATES DISTRICT COURT, 407 U.S. 297 


       UNITED STATES V. UNITED STATES DISTRICT COURT FOR THE

           EASTERN DISTRICT OF MICHIGAN ET AL. (PLAMONDON ET AL.,

           REAL PARTIES IN INTEREST)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

          SIXTH CIRCUIT

        NO. 70-153.  ARGUED FEBRUARY 24, 1972-- DECIDED JUNE 19,

           1972 


THE UNITED STATES CHARGED THREE DEFENDANTS WITH CONSPIRING TO
DESTROY, AND ONE OF THEM WITH DESTROYING, GOVERNMENT PROPERTY.  IN
RESPONSE TO THE DEFENDANTS' PRETRIAL MOTION FOR DISCLOSURE OF
ELECTRONIC SURVEILLANCE INFORMATION, THE GOVERNMENT FILED AN AFFIDAVIT
OF THE ATTORNEY GENERAL STATING THAT HE HAD APPROVED THE WIRETAPS FOR
THE PURPOSE OF "GATHERING) INTELLIGENCE INFORMATION DEEMED NECESSARY TO
PROTECT THE NATION FROM ATTEMPTS OF DOMESTIC ORGANIZATIONS TO ATTACK
AND SUBVERT THE EXISTING STRUCTURE OF THE GOVERNMENT."  ON THE BASIS OF
THE AFFIDAVIT AND SURVEILLANCE LOGS (FILED IN A SEALED EXHIBIT), THE
GOVERNMENT CLAIMED THAT THE SURVEILLANCES, THOUGH WARRANTLESS, WERE
LAWFUL AS A REASONABLE EXERCISE OF PRESIDENTIAL POWER TO PROTECT THE
NATIONAL SECURITY.  THE DISTRICT COURT, HOLDING THE SURVEILLANCES
VIOLATIVE OF THE FOURTH AMENDMENT, ISSUED AN ORDER FOR DISCLOSURE OF
THE OVERHEARD CONVERSATIONS, WHICH THE COURT OF APPEALS UPHELD.  TITLE
III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT, WHICH AUTHORIZES
COURT-APPROVED ELECTRONIC SURVEILLANCE FOR SPECIFIED CRIMES, CONTAINS A
PROVISION IN 18 U.S.C. 2511(3) THAT NOTHING IN THAT LAW LIMITS THE
PRESIDENT'S CONSTITUTIONAL POWER TO PROTECT AGAINST THE OVERTHROW OF
THE GOVERNMENT OR AGAINST "ANY OTHER CLEAR AND PRESENT DANGER TO THE
STRUCTURE OR EXISTENCE OF THE GOVERNMENT."  THE GOVERNMENT RELIES ON
SEC. 2511(3) IN SUPPORT OF ITS CONTENTION THAT "IN EXCEPTING NATIONAL
SECURITY SURVEILLANCES FROM THE ACT'S WARRANT REQUIREMENT, CONGRESS
RECOGNIZED THE PRESIDENT'S AUTHORITY TO CONDUCT SUCH SURVEILLANCES
WITHOUT PRIOR JUDICIAL APPROVAL."  HELD: 

1.  SECTION 2511(3) IS MERELY A DISCLAIMER OF CONGRESSIONAL INTENT
TO DEFINE PRESIDENTIAL POWERS IN MATTERS AFFECTING NATIONAL SECURITY,
AND IS NOT A GRANT OF AUTHORITY TO CONDUCT WARRANTLESS NATIONAL
SECURITY SURVEILLANCES.  PP. 301-308. 

2.  THE FOURTH AMENDMENT (WHICH SHIELDS PRIVATE SPEECH FROM
UNREASONABLE SURVEILLANCE) REQUIRES PRIOR JUDICIAL APPROVAL FOR THE
TYPE OF DOMESTIC SECURITY SURVEILLANCE INVOLVED IN THIS CASE.  PP. 314
321; 323-324.  SURVEILLANCE INVOLVED IN THIS CASE.  PP. 314-321; 323
324. 

(A) THE GOVERNMENT'S DUTY TO SAFEGUARD DOMESTIC SECURITY MUST BE
WEIGHED AGAINST THE POTENTIAL DANGER THAT UNREASONABLE SURVEILLANCES
POSE TO INDIVIDUAL PRIVACY AND FREE EXPRESSION.  PP. 314-315. 

(B) THE FREEDOMS OF THE FOURTH AMENDMENT CANNOT PROPERLY BE
GUARANTEED IF DOMESTIC SECURITY SURVEILLANCES ARE CONDUCTED SOLELY
WITHIN THE DISCRETION OF THE EXECUTIVE BRANCH WITHOUT THE DETACHED
JUDGMENT OF A NEUTRAL MAGISTRATE.  PP. 316-318. 

(C) RESORT TO APPROPRIATE WARRANT PROCEDURE WOULD NOT FRUSTRATE THE
LEGITIMATE PURPOSES OF DOMESTIC SECURITY SEARCHES.  PP. 318-321. 

444 F.2D 651, AFFIRMED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, MARSHALL, STEWART, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J.,
FILED A CONCURRING OPINION, POST, P. 324.  BURGER, C.J., CONCURRED IN
THE RESULT.  WHITE, J., FILED AN OPINION CONCURRING IN THE JUDGMENT,
POST, P. 335.  REHNQUIST, J., TOOK NO PART IN THE CONSIDERATION OF THE
CASE. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE ISSUE BEFORE US IS AN IMPORTANT ONE FOR THE PEOPLE OF OUR COUNTRY
AND THEIR GOVERNMENT.  IT INVOLVES THE DELICATE QUESTION OF THE
PRESIDENT'S POWER, ACTING THROUGH THE ATTORNEY GENERAL, TO AUTHORIZE
ELECTRONIC SURVEILLANCE IN INTERNAL SECURITY MATTERS WITHOUT PRIOR
JUDICIAL APPROVAL.  SUCCESSIVE PRESIDENTS FOR MORE THAN ONE-QUARTER OF
A CENTURY HAVE AUTHORIZED SUCH SURVEILLANCE IN VARYING DEGREES, /1/
WITHOUT GUIDANCE FROM THE CONGRESS OR A DEFINITIVE DECISION OF THIS
COURT.  THIS CASE BRINGS THE ISSUE HERE FOR THE FIRST TIME.  ITS
RESOLUTION IS A MATTER OF NATIONAL CONCERN, REQUIRING SENSITIVITY BOTH
THE GOVERNMENT'S RIGHT TO PROTECT ITSELF FROM UNLAWFUL SUBVERSION AND
ATTACK AND TO THE CITIZEN'S RIGHT TO BE SECURE IN HIS PRIVACY AGAINST
UNREASONABLE GOVERNMENT INTRUSION. 

THIS CASE ARISES FROM A CRIMINAL PROCEEDING IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, IN WHICH THE
UNITED STATES CHARGED THREE DEFENDANTS WITH CONSPIRACY TO DESTROY
GOVERNMENT PROPERTY IN VIOLATION OF 18 U.S.C. 371.  ONE OF THE
DEFENDANTS, PLAMONDON, WAS CHARGED WITH THE DYNAMITE BOMBING OF AN
OFFICE OF THE CENTRAL INTELLIGENCE AGENCY IN ANN ARBOR, MICHIGAN. 

DURING PRETRIAL PROCEEDINGS, THE DEFENDANTS MOVED TO COMPEL THE
UNITED STATES TO DISCLOSE CERTAIN ELECTRONIC SURVEILLANCE INFORMATION
AND TO CONDUCT A HEARING TO DETERMINE WHETHER THIS INFORMATION
"TAINTED" THE EVIDENCE ON WHICH THE INDICTMENT WAS BASED OR WHICH THE
GOVERNMENT INTENDED TO OFFER AT TRIAL.  IN RESPONSE, THE GOVERNMENT
FILED AN AFFIDAVIT OF THE ATTORNEY GENERAL, ACKNOWLEDGING THAT ITS
AGENTS HAD OVERHEARD CONVERSATIONS IN WHICH PLAMONDON HAD
PARTICIPATED.  THE AFFIDAVIT ALSO STATED THAT THE ATTORNEY GENERAL
APPROVED THE WIRETAPS "TO GATHER INTELLIGENCE INFORMATION DEEMED
NECESSARY TO PROTECT THE NATION FROM ATTEMPTS OF DOMESTIC ORGANIZATIONS
TO ATTACK AND SUBVERT THE EXISTING STRUCTURE OF THE GOVERNMENT."  /2/
THE LOGS OF THE SURVEILLANCE WERE FILED IN A SEALED EXHIBIT FOR IN
CAMERA INSPECTION BY THE DISTRICT COURT. 

ON THE BASIS OF THE ATTORNEY GENERAL'S AFFIDAVIT AND THE SEALED
EXHIBIT, THE GOVERNMENT ASSERTED THAT THE SURVEILLANCE WAS LAWFUL,
THOUGH CONDUCTED WITHOUT PRIOR JUDICIAL APPROVAL, AS A REASONABLE
EXERCISE OF THE PRESIDENT'S POWER (EXERCISED THROUGH THE ATTORNEY
GENERAL) TO PROTECT THE NATIONAL SECURITY.  THE DISTRICT COURT HELD
THAT THE SURVEILLANCE VIOLATED THE FOURTH AMENDMENT, AND ORDERED THE
GOVERNMENT TO MAKE FULL DISCLOSURE TO PLAMONDON OF HIS OVERHEARD
CONVERSATIONS.  321 F.SUPP.  1074 (ED MICH. 1971). 

THE GOVERNMENT THEN FILED IN THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT A PETITION FOR A WRIT OF MANDAMUS TO SET ASIDE THE DISTRICT
COURT ORDER, WHICH WAS STAYED PENDING FINAL DISPOSITION OF THE CASE. 
AFTER CONCLUDING THAT IT HAD JURISDICTION, /3/  THAT COURT HELD THAT
THE SURVEILLANCE WAS UNLAWFUL AND THAT THE DISTRICT COURT HAD PROPERLY
REQUIRED DISCLOSURE OF THE OVERHEARD CONVERSATIONS, 444 F.2D 651
(1971).  WE GRANTED CERTIORARI, 403 U.S. 930. 

 I 

TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT, 18
U.S.C. 2510-2520, AUTHORIZES THE USE OF ELECTRONIC SURVEILLANCE FOR
CLASSES OF CRIMES CAREFULLY SPECIFIED IN 18 U.S.C. 2516.  SUCH
SURVEILLANCE IS SUBJECT TO PRIOR COURT ORDER.  SECTION 2518 SETS FORTH
THE DETAILED AND PARTICULARIZED APPLICATION NECESSARY TO OBTAIN SUCH AN
ORDER AS WELL AS CAREFULLY CIRCUMSCRIBED CONDITIONS FOR ITS USE.  THE
ACT REPRESENTS A COMPREHENSIVE ATTEMPT BY CONGRESS TO PROMOTE MORE
EFFECTIVE CONTROL OF CRIME WHILE PROTECTING THE PRIVACY OF INDIVIDUAL
THOUGHT AND EXPRESSION.  MUCH OF TITLE III WAS DRAWN TO MEET THE
CONSTITUTIONAL REQUIREMENTS FOR ELECTRONIC SURVEILLANCE ENUNCIATED BY
THIS COURT IN BERGER V. NEW YORK, 388 U.S. 41 (1967), AND KATZ V.
UNITED STATES, 389 U.S. 347 (1967). 

TOGETHER WITH THE ELABORATE SURVEILLANCE REQUIREMENTS IN TITLE III,
THERE IS THE FOLLOWING PROVISO, 18 U.S.C. 2511(3): 

     "NOTHING CONTAINED IN THIS CHAPTER OR IN SECTION 605 OF THE

  COMMUNICATIONS ACT OF 1934 (48 STAT. 1143; 47 U.S.C. 605) SHALL

  LIMIT THE CONSTITUTIONAL POWER OF THE PRESIDENT TO TAKE SUCH

MEASURES AS HE DEEMS NECESSARY TO PROTECT THE NATION AGAINST

  ACTUAL OR POTENTIAL ATTACK OR OTHER HOSTILE ACTS OF A FOREIGN

  POWER, TO OBTAIN FOREIGN INTELLIGENCE INFORMATION DEEMED

  ESSENTIAL TO THE SECURITY OF THE UNITED STATES, OR TO PROTECT

  NATIONAL SECURITY INFORMATION AGAINST FOREIGN INTELLIGENCE

  ACTIVITIES.  NOR SHALL ANYTHING CONTAINED IN THIS CHAPTER BE

  DEEMED TO LIMIT THE CONSTITUTIONAL POWER OF THE PRESIDENT TO TAKE

  SUCH MEASURES AS HE DEEMS NECESSARY TO PROTECT THE UNITED STATES

  AGAINST THE OVERTHROW OF THE GOVERNMENT BY FORCE OR OTHER

  UNLAWFUL MEANS, OR AGAINST ANY OTHER CLEAR AND PRESENT DANGER TO

  THE STRUCTURE OR EXISTENCE OF THE GOVERNMENT.  THE CONTENTS OF

ANY WIRE OR ORAL COMMUNICATION INTERCEPTED BY AUTHORITY OF THE

  PRESIDENT IN THE EXERCISE OF THE FOREGOING POWERS MAY BE RECEIVED

  IN EVIDENCE IN ANY TRIAL HEARING, OR OTHER PROCEEDING ONLY WHERE

  SUCH INTERCEPTION WAS REASONABLE, AND SHALL NOT BE OTHERWISE USED

  OR DISCLOSED EXCEPT AS IS NECESSARY TO IMPLEMENT THAT POWER." 

THE GOVERNMENT RELIES ON SEC. 2511(3).  IT ARGUES THAT "IN EXCEPTING
NATIONAL SECURITY SURVEILLANCES FROM THE ACT'S WARRANT REQUIREMENT
CONGRESS RECOGNIZED THE PRESIDENT'S AUTHORITY TO CONDUCT SUCH
SURVEILLANCES WITHOUT PRIOR JUDICIAL APPROVAL."  BRIEF FOR UNITED
STATES 7, 28.  THE SECTION THUS IS VIEWED AS A RECOGNITION OR
AFFIRMANCE OF A CONSTITUTIONAL AUTHORITY IN THE PRESIDENT TO CONDUCT
WARRANTLESS DOMESTIC SECURITY SURVEILLANCE SUCH AS THAT INVOLVED IN
THIS CASE. 

WE THINK THE LANGUAGE OF SEC. 2511(3), AS WELL AS THE LEGISLATIVE
HISTORY OF THE STATUTE, REFUTES THIS INTERPRETATION.  THE RELEVANT
LANGUAGE IS THAT: 

     "NOTHING CONTAINED IN THIS CHAPTER . . . SHALL LIMIT THE

  CONSTITUTIONAL POWER OF THE PRESIDENT TO TAKE SUCH MEASURES AS HE

  DEEMS NECESSARY TO PROTECT . . . "

AGAINST THE DANGERS SPECIFIED.  AT MOST, THIS IS AN IMPLICIT
RECOGNITION THAT THE PRESIDENT DOES HAVE CERTAIN POWERS IN THE
SPECIFIED AREAS.  FEW WOULD DOUBT THIS, AS THE SECTION REFERS-- AMONG
OTHER THINGS-- TO PROTECTION "AGAINST ACTUAL OR POTENTIAL ATTACK OR
OTHER HOSTILE ACTS OF A FOREIGN POWER."  BUT SO FAR AS THE USE OF THE
PRESIDENT'S ELECTRONIC SURVEILLANCE POWER IS CONCERNED, THE LANGUAGE IS
ESSENTIALLY NEUTRAL. 

WHOLLY INAPPROPRIATE FOR SUCH A PURPOSE.  IT MERELY PROVIDES THAT THE
ACT SHALL NOT BE INTERPRETED TO LIMIT OR DISTURB SUCH POWER AS THE
PRESIDENT MAY HAVE UNDER THE CONSTITUTION.  IN SHORT, CONGRESS SIMPLY
LEFT PRESIDENTIAL POWERS WHERE IT FOUND THEM.  THIS VIEW IS REINFORCED
BY THE GENERAL CONTEXT OF TITLE III.  SECTION 2511(1) BROADLY PROHIBITS
THE USE OF ELECTRONIC SURVEILLANCE "(EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED IN THIS CHAPTER."  SUBSECTION (2) THEREOF CONTAINS FOUR
SPECIFIC EXCEPTIONS.  IN EACH OF THE SPECIFIED EXCEPTIONS, THE
STATUTORY LANGUAGE IS AS FOLLOWS: 

"IT SHALL NOT BE UNLAWFUL . . . TO INTERCEPT" THE PARTICULAR TYPE OF
COMMUNICATION DESCRIBED.  /4/ 

THE LANGUAGE OF SUBSECTION (3), HERE INVOLVED, IS TO BE CONTRASTED
WITH THE LANGUAGE OF THE EXCEPTIONS SET FORTH IN THE PRECEDING
SUBSECTION.  RATHER THAN STATING THAT WARRANTLESS PRESIDENTIAL USES OF
ELECTRONIC SURVEILLANCE "SHALL NOT BE UNLAWFUL" AND THUS EMPLOYING THE
STANDARD LANGUAGE OF EXCEPTION, SUBSECTION (3) MERELY DISCLAIMS ANY
INTENTION TO "LIMIT THE CONSTITUTIONAL POWER OF THE PRESIDENT." 

THE EXPRESS GRANT OF AUTHORITY TO CONDUCT SURVEILLANCES IS FOUND IN
SEC. 2516, WHICH AUTHORIZES THE ATTORNEY GENERAL TO MAKE APPLICATION TO
A FEDERAL JUDGE WHEN SURVEILLANCE MAY PROVIDE EVIDENCE OF CERTAIN
OFFENSES.  THESE OFFENSES ARE DESCRIBED WITH METICULOUS CARE AND
SPECIFICITY. 

WHERE THE ACT AUTHORIZES SURVEILLANCE, THE PROCEDURE TO BE FOLLOWED
IS SPECIFIED IN SEC. 2518.  SUBSECTION (1) THEREOF REQUIRES APPLICATION
TO A JUDGE OF COMPETENT JURISDICTION FOR A PRIOR ORDER OF APPROVAL, AND
STATES IN DETAIL THE INFORMATION REQUIRED IN SUCH APPLICATION.  /5/
SUBSECTION (3) PRESCRIBES THE NECESSARY ELEMENTS OF PROBABLE CAUSE
WHICH THE JUDGE MUST FIND BEFORE ISSUING AN ORDER AUTHORIZING AN
INTERCEPTION.  SUBSECTION (4) SETS FORTH THE REQUIRED CONTENTS OF SUCH
AN ORDER.  SUBSECTION (5) SETS STRICT TIME LIMITS ON AN ORDER. 
PROVISION IS MADE IN SUBSECTION (7) FOR "AN EMERGENCY SITUATION" FOUND
TO EXIST BY THE ATTORNEY GENERAL (OR BY THE PRINCIPAL PROSECUTING
ATTORNEY OF A STATE) "WITH RESPECT TO CONSPIRATORIAL ACTIVITIES
THREATENING THE NATIONAL SECURITY INTEREST."  IN SUCH A SITUATION,
EMERGENCY SURVEILLANCE MAY BE CONDUCTED "IF AN APPLICATION FOR AN ORDER
APPROVING THE INTERCEPTION IS MADE . . . WITHIN FORTY-EIGHT HOURS."  IF
SUCH AN ORDER IS NOT OBTAINED, OR THE APPLICATION THEREFOR IS DENIED,
THE INTERCEPTION IS DEEMED TO BE A VIOLATION OF THE ACT. 

IN VIEW OF THESE AND OTHER INTERRELATED PROVISIONS DELINEATING
PERMISSIBLE INTERCEPTIONS OF PARTICULAR CRIMINAL ACTIVITY UPON
CAREFULLY SPECIFIED CONDITIONS, IT WOULD HAVE BEEN INCONGRUOUS FOR
CONGRESS TO HAVE LEGISLATED WITH RESPECT TO THE IMPORTANT AND COMPLEX
AREA OF NATIONAL SECURITY IN A SINGLE BRIEF AND NEBULOUS PARAGRAPH. 
THIS WOULD NOT COMPORT WITH THE SENSITIVITY OF THE PROBLEM INVOLVED OR
WITH THE EXTRAORDINARY CARE CONGRESS EXERCISED IN DRAFTING OTHER
THAT CONGRESS ONLY INTENDED TO MAKE CLEAR THAT THE ACT SIMPLY DID NOT
LEGISLATE WITH RESPECT TO NATIONAL SECURITY SURVEILLANCES.  /6/ 

THE LEGISLATIVE HISTORY OF SEC. 2511(3) SUPPORTS THIS
INTERPRETATION.  MOST RELEVANT IS THE COLLOQUY BETWEEN SENATORS HART,
HOLLAND, AND MCCLELLAN ON THE SENATE FLOOR: 

     "MR. HOLLAND.  . . . THE SECTION (2511(3)) FROM WHICH THE

  SENATOR (HART) HAS READ DOES NOT AFFIRMATIVELY GIVE ANY POWER.  .

  . . WE ARE NOT AFFIRMATIVELY CONFERRING ANY POWER UPON THE

  PRESIDENT.  WE ARE SIMPLY SAYING THAT NOTHING HEREIN SHALL LIMIT

  SUCH POWER AS THE PRESIDENT HAS UNDER THE CONSTITUTION.  . . . WE

  CERTAINLY DO NOT GRANT HIM A THING. 

     "THERE IS NOTHING AFFIRMATIVE IN THIS STATEMENT. 

     "MR. MCCLELLAN.  MR. PRESIDENT, WE MAKE IT UNDERSTOOD THAT WE

  ARE NOT TRYING TO TAKE ANYTHING AWAY FROM HIM. 

     "MR. HOLLAND.  THE SENATOR IS CORRECT. 

     "MR. HART.  MR. PRESIDENT, THERE IS NO INTENTION HERE TO
EXPAND

  BY THIS LANGUAGE A CONSTITUTIONAL POWER.  CLEARLY WE COULD NOT DO

  SO. 

     "MR. MCCLELLAN.  EVEN THOUGH INTENDED, WE COULD NOT DO SO. 

"MR. HART.  . . . HOWEVER, WE ARE AGREED THAT THIS LANGUAGE

 SHOULD NOT BE REGARDED AS INTENDING TO GRANT ANY AUTHORITY,

  INCLUDING AUTHORITY TO PUT A BUG ON, THAT THE PRESIDENT DOES NOT

  HAVE NOW. 

      "IN ADDITION, MR. PRESIDENT, AS I THINK OUR EXCHANGE MAKES

  CLEAR, NOTHING IN SECTION 2511(3) EVEN ATTEMPTS TO DEFINE THE

  LIMITS OF THE PRESIDENT'S NATIONAL SECURITY POWER UNDER PRESENT

  LAW, WHICH I HAVE ALWAYS FOUND EXTREMELY VAGUE.  . . . SECTION

  2511(3) MERELY SAYS THAT IF THE PRESIDENT HAS SUCH A POWER, THEN

  ITS EXERCISE IS IN NO WAY AFFECTED BY TITLE III."  /7/ 

ONE COULD HARDLY EXPECT A CLEARER EXPRESSION OF CONGRESSIONAL
NEUTRALITY.  THE DEBATE ABOVE EXPLICITLY INDICATES THAT NOTHING IN SEC.
2511(3) WAS INTENDED TO EXPAND OR TO CONTRACT OR TO DEFINE WHATEVER
PRESIDENTIAL SURVEILLANCE POWERS EXISTED IN MATTERS AFFECTING THE
NATIONAL SECURITY.  IF WE COULD ACCEPT THE GOVERNMENT'S
CHARACTERIZATION OF SEC. 2511(3) AS A CONGRESSIONALLY PRESCRIBED
EXCEPTION TO THE GENERAL REQUIREMENT OF A WARRANT, IT WOULD BE
NECESSARY TO CONSIDER THE QUESTION OF WHETHER THE SURVEILLANCE IN THIS
CASE CAME WITHIN THE EXCEPTION AND, IF SO, WHETHER THE STATUTORY
EXCEPTION WAS ITSELF CONSTITUTIONALLY VALID.  BUT VIEWING SEC. 2511(3)
AS A CONGRESSIONAL DISCLAIMER AND EXPRESSION OF NEUTRALITY, WE HOLD
THAT THE STATUTE IS NOT THE MEASURE OF THE EXECUTIVE AUTHORITY ASSERTED
IN THIS CASE.  RATHER, WE MUST LOOK TO THE CONSTITUTIONAL POWERS OF THE
PRESIDENT. 

        II 

IT IS IMPORTANT AT THE OUTSET TO EMPHASIZE THE LIMITED NATURE OF THE
QUESTION BEFORE THE COURT.  THIS CASE RAISES NO CONSTITUTIONAL
CHALLENGE TO ELECTRONIC SURVEILLANCE AS SPECIFICALLY AUTHORIZED BY
TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968. 
NOR IS THERE ANY QUESTION OR DOUBT AS TO THE NECESSITY OF OBTAINING A
WARRANT IN THE SURVEILLANCE OF CRIMES UNRELATED TO THE NATIONAL
SECURITY INTEREST.  KATZ V. UNITED STATES, 389 U.S. 347 (1967); BERGER
V. NEW YORK, 388 U.S. 41 (1967).  FURTHER, THE INSTANT CASE REQUIRES NO
JUDGMENT ON THE SCOPE OF THE PRESIDENT'S SURVEILLANCE POWER WITH
RESPECT TO THE ACTIVITIES OF FOREIGN POWERS, WITHIN OR WITHOUT THIS
COUNTRY.  THE ATTORNEY GENERAL'S AFFIDAVIT IN THIS CASE STATES THAT THE
SURVEILLANCES WERE "DEEMED NECESSARY TO PROTECT THE NATION FROM
ATTEMPTS OF DOMESTIC ORGANIZATIONS TO ATTACK AND SUBVERT THE EXISTING
STRUCTURE OF GOVERNMENT."  THERE IS NO EVIDENCE OF ANY INVOLVEMENT,
DIRECTLY OR INDIRECTLY, OF A FOREIGN POWER.  /8/ 

OUR PRESENT INQUIRY, THOUGH IMPORTANT, IS THEREFORE A NARROW ONE. 
IT ADDRESSES A QUESTION LEFT OPEN BY KATZ, SUPRA, AT 358 N. 23: 

     "WHETHER SAFEGUARDS OTHER THAN PRIOR AUTHORIZATION BY A

  MAGISTRATE WOULD SATISFY THE FOURTH AMENDMENT IN A SITUATION

  INVOLVING THE NATIONAL SECURITY.  . . . "

THE DETERMINATION OF THIS QUESTION REQUIRES THE ESSENTIAL FOURTH
AMENDMENT INQUIRY INTO THE "REASONABLENESS" OF THE SEARCH AND SEIZURE
IN QUESTION, AND THE WAY IN WHICH THAT "REASONABLENESS" DERIVES CONTENT
AND MEANING THROUGH REFERENCE TO THE WARRANT CLAUSE.  COOLIDGE V. NEW
HAMPSHIRE, 403 U.S. 443, 473-484 (1971). 

WE BEGIN THE INQUIRY BY NOTING THAT THE PRESIDENT OF THE UNITED
STATES HAS THE FUNDAMENTAL DUTY, UNDER ART. II, SEC. 1, OF THE
CONSTITUTION, TO "PRESERVE, PROTECT AND DEFEND THE CONSTITUTION OF THE
UNITED STATES."  IMPLICIT IN THAT DUTY IS THE POWER TO PROTECT OUR
GOVERNMENT AGAINST THOSE WHO WOULD SUBVERT OR OVERTHROW IT BY UNLAWFUL
MEANS.  IN THE DISCHARGE OF THIS DUTY, THE PRESIDENT-- THROUGH THE
ATTORNEY GENERAL-- MAY FIND IT NECESSARY TO EMPLOY ELECTRONIC
SURVEILLANCE TO OBTAIN INTELLIGENCE INFORMATION ON THE PLANS OF THOSE
WHO PLOT UNLAWFUL ACTS AGAINST THE GOVERNMENT.  /9/  THE USE OF SUCH
SURVEILLANCE IN INTERNAL SECURITY CASES HAS BEEN SANCTIONED MORE OR
LESS CONTINUOUSLY BY VARIOUS PRESIDENTS AND ATTORNEYS GENERAL SINCE
JULY 1946.  /10/  HERBERT BROWNELL, ATTORNEY GENERAL UNDER PRESIDENT
EISENHOWER, URGED THE USE OF ELECTRONIC SURVEILLANCE BOTH IN INTERNAL
AND INTERNATIONAL SECURITY MATTERS ON THE GROUNDS THAT THOSE ACTING
AGAINST THE GOVERNMENT 

"TURN TO THE TELEPHONE TO CARRY ON THEIR INTRIGUE.  THE SUCCESS OF
THEIR PLANS FREQUENTLY RESTS UPON PIECING TOGETHER SHREDS OF
INFORMATION RECEIVED FROM MANY SOURCES AND MANY NESTS.  THE
PARTICIPANTS IN THE CONSPIRACY ARE OFTEN DISPERSED AND SANCTIONED IN
VARIOUS STRATEGIC POSITIONS IN GOVERNMENT AND INDUSTRY THROUGHOUT THE
COUNTRY."  /11/ 

THOUGH THE GOVERNMENT AND RESPONDENTS DEBATE THEIR SERIOUSNESS AND
MAGNITUDE, THREATS AND ACTS OF SABOTAGE AGAINST THE GOVERNMENT EXIST IN
SUFFICIENT NUMBER TO JUSTIFY INVESTIGATIVE POWERS WITH RESPECT TO
THEM.  /12/  THE COVERTNESS AND COMPLEXITY OF POTENTIAL UNLAWFUL
CONDUCT AGAINST THE GOVERNMENT AND THE NECESSARY DEPENDENCY OF MANY
CONSPIRATORS UPON THE TELEPHONE MAKE ELECTRONIC SURVEILLANCE AN
EFFECTIVE INVESTIGATORY INSTRUMENT IN CERTAIN CIRCUMSTANCES.  THE
MARKED ACCELERATION IN TECHNOLOGICAL DEVELOPMENTS AND SOPHISTICATION IN
THEIR USE HAVE RESULTED IN NEW TECHNIQUES FOR THE PLANNING, COMMISSION,
AND CONCEALMENT OF CRIMINAL ACTIVITIES.  IT WOULD BE CONTRARY TO THE
PUBLIC INTEREST FOR GOVERNMENT TO DENY TO ITSELF THE PRUDENT AND LAWFUL
EMPLOYMENT OF THOSE VERY TECHNIQUES WHICH ARE EMPLOYED AGAINST THE
GOVERNMENT AND ITS LAW-ABIDING CITIZENS. 

IT HAS BEEN SAID THAT "(THE MOST BASIC FUNCTION OF ANY GOVERNMENT IS
TO PROVIDE FOR THE SECURITY OF THE INDIVIDUAL AND OF HIS PROPERTY." 
MIRANDA V. ARIZONA, 384 U.S. 436, 539 (1966) (WHITE, J., DISSENTING). 
AND UNLESS GOVERNMENT SAFEGUARDS ITS OWN CAPACITY TO FUNCTION AND TO
PRESERVE THE SECURITY OF ITS PEOPLE, SOCIETY ITSELF COULD BECOME SO
DISORDERED THAT ALL RIGHTS AND LIBERTIES WOULD BE ENDANGERED.  AS CHIEF
JUSTICE HUGHES REMINDED US IN COX V. NEW HAMPSHIRE, 312 U.S. 569, 574
(1941): 

     "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." 

BUT A RECOGNITION OF THESE ELEMENTARY TRUTHS DOES NOT MAKE THE
EMPLOYMENT BY GOVERNMENT OF ELECTRONIC SURVEILLANCE A WELCOME
DEVELOPMENT-- EVEN WHEN EMPLOYED WITH RESTRAINT AND UNDER JUDICIAL
SUPERVISION.  THERE IS, UNDERSTANDABLY, A DEEP-SEATED UNEASINESS AND
APPREHENSION THAT THIS CAPABILITY WILL BE USED TO INTRUDE UPON
CHERISHED PRIVACY OF LAW-ABIDING CITIZENS.  /13/  WE LOOK TO THE BILL
OF RIGHTS TO SAFEGUARD THIS PRIVACY.  THOUGH PHYSICAL ENTRY OF THE HOME
IS THE CHIEF EVIL AGAINST WHICH THE WORDING OF THE FOURTH AMENDMENT IS
DIRECTED, ITS BROADER SPIRIT NOW SHIELDS PRIVATE SPEECH FROM
UNREASONABLE SURVEILLANCE.  KATZ V. UNITED STATES, SUPRA; BERGER V. NEW
YORK, SUPRA; SILVERMAN V. UNITED STATES, 365 U.S. 505 (1961).  OUR
DECISION IN KATZ REFUSED TO LOCK THE FOURTH AMENDMENT INTO INSTANCES OF
ACTUAL PHYSICAL TRESPASS.  RATHER, THE AMENDMENT GOVERNS "NOT ONLY THE
SEIZURE OF TANGIBLE ITEMS, BUT EXTENDS AS WELL TO THE RECORDING OF ORAL
STATEMENTS . . . WITHOUT ANY 'TECHNICAL TRESPASS UNDER . . . LOCAL
PROPERTY LAW.'"  KATZ, SUPRA, AT 353.  THAT DECISION IMPLICITLY
RECOGNIZED THAT THE BROAD AND UNSUSPECTED GOVERNMENTAL INCURSIONS INTO
CONVERSATIONAL PRIVACY WHICH ELECTRONIC SURVEILLANCE ENTAILS /14/
NECESSITATE THE APPLICATION OF FOURTH AMENDMENT SAFEGUARDS. 

NATIONAL SECURITY CASES, MOREOVER, OFTEN REFLECT A CONVERGENCY OF
FIRST AND FOURTH AMENDMENT VALUES NOT PRESENT IN CASES OF "ORDINARY"
CRIME.  THOUGH THE INVESTIGATIVE DUTY OF THE EXECUTIVE MAY BE STRONGER
IN SUCH CASES, SO ALSO IS THERE GREATER JEOPARDY TO CONSTITUTIONALLY
PROTECTED SPEECH.  "HISTORICALLY THE STRUGGLE FOR FREEDOM OF SPEECH AND
PRESS IN ENGLAND WAS BOUND UP WITH THE ISSUE OF THE SCOPE OF THE SEARCH
AND SEIZURE POWER," MARCUS V. SEARCH WARRANT, 367 U.S. 717, 724
(1961).  HISTORY ABUNDANTLY DOCUMENTS THE TENDENCY OF GOVERNMENT--
HOWEVER BENEVOLENT AND BENIGN ITS MOTIVES-- TO VIEW WITH SUSPICION
THOSE WHO MOST FERVENTLY DISPUTE ITS POLICIES.  FOURTH AMENDMENT
PROTECTIONS BECOME THE MORE NECESSARY WHEN THE TARGETS OF OFFICIAL
SURVEILLANCE MAY BE THOSE SUSPECTED OF UNORTHODOXY IN THEIR POLITICAL
BELIEFS.  THE DANGER TO POLITICAL DISSENT IS ACUTE WHERE THE GOVERNMENT
ATTEMPTS TO ACT UNDER SO VAGUE A CONCEPT AS THE POWER TO PROTECT
"DOMESTIC SECURITY."  GIVEN THE DIFFICLUTY OF DEFINING THE DOMESTIC
SECURITY INTEREST, THE DANGER OF ABUSE IN ACTING TO PROTECT THAT
INTEREST BECOMES APPARENT.  SENATOR HART ADDRESSED THIS DILEMMA IN THE
FLOOR DEBATE ON SEC. 2511(3): 

"AS I READ IT-- AND THIS IS MY FEAR-- WE ARE SAYING THAT THE
PRESIDENT, ON HIS MOTION, COULD DECLARE-- NAME YOUR FAVORITE POISON--
DRAFT DODGERS, BLACK MUSLIMS, THE KU KLUX KLAN, OR CIVIL RIGHTS
ACTIVISTS TO BE A CLEAR AND PRESENT DANGER TO THE STRUCTURE OR
EXISTENCE OF THE GOVERNMENT."  /15/ THE PRICE OF LAWFUL PUBLIC DISSENT
MUST NOT BE A DREAD OF SUBJECTION TO AN UNCHECKED SURVEILLANCE POWER. 
NOR MUST THE FEAR OF UNAUTHORIZED OFFICIAL EAVESDROPPING DETER VIGOROUS
CITIZEN DISSENT AND DISCUSSION OF GOVERNMENT ACTION IN PRIVATE
CONVERSATION.  FOR PRIVATE DISSENT, NO LESS THAN OPEN PUBLIC DISCOURSE,
IS ESSENTIAL TO OUR FREE SOCIETY. 

        III 

AS THE FOURTH AMENDMENT IS NOT ABSOLUTE IN ITS TERMS, OUR TASK IS TO
EXAMINE AND BALANCE THE BASIC VALUES AT STAKE IN THIS CASE:  THE DUTY
OF GOVERNMENT TO PROTECT THE DOMESTIC SECURITY, AND THE POTENTIAL
DANGER POSED BY UNREASONABLE SURVEILLANCE TO INDIVIDUAL PRIVACY AND
FREE EXPRESSION.  IF THE LEGITIMATE NEED OF GOVERNMENT TO SAFEGUARD
DOMESTIC SECURITY REQUIRES THE USE OF ELECTRONIC SURVEILLANCE, THE
QUESTION IS WHETHER THE NEEDS OF CITIZENS FOR PRIVACY AND FREE
EXPRESSION MAY NOT BE BETTER PRETECTED BY REQUIRING A WARRANT BEFORE
SUCH SURVEILLANCE IS UNDERTAKEN.  WE MUST ALSO ASK WHETHER A WARRANT
REQUIREMENT WOULD UNDULY FRUSTRATE THE EFFORTS OF GOVERNMENT TO PROTECT
ITSELF FROM ACTS OF SUBVERSION AND OVERTHROW DIRECTED AGAINST IT. 

THOUGH THE FOURTH AMENDMENT SPEAKS BROADLY OF "UNREASONABLE SEARCHES
AND SEIZURES," THE DEFINITION OF "REASONABLENESS" TURNS, AT LEAST IN
PART, ON THE MORE SPECIFIC COMMANDS OF THE WARRANT CLAUSE.  SOME HAVE
ARGUED THAT "(THE RELEVANT TEST IS NOT WHETHER IT IS REASONABLE TO
PROCURE A SEARCH WARRANT, BUT WHETHER THE SEARCH WAS REASONABLE,"
UNITED STATES V. RABINOWITZ, 339 U.S. 56, 66 (1950).  /16/  THIS VIEW,
HOWEVER, OVERLOOKS THE SECOND CLAUSE OF THE AMENDMENT.  THE WARRANT
CLAUSE OF THE FOURTH AMENDMENT IS NOT DEAD LANGUAGE.  RATHER, IT HAS
BEEN 

"A VALUED PART OF OUR CONSTITUTIONAL LAW FOR DECADES, AND IT HAS
DETERMINED THE RESULT IN SCORES AND SCORES OF CASES IN COURTS ALL OVER
THIS COUNTRY.  IT IS NOT AN INCONVENIENCE TO BE SOMEHOW 'WEIGHED'
AGAINST THE CLAIMS OF POLICE EFFICIENCY.  IT IS, OR SHOULD BE, AN
IMPORTANT WORKING PART OF OUR MACHINERY OF GOVERNMENT, OPERATING AS A
MATTER OF COURSE TO CHECK THE 'WELL-INTENTIONED BUT MISTAKENLY
OVERZEALOUS EXECUTIVE OFFICERS'  WHO ARE A PART OF ANY SYSTEM OF LAW
ENFORCEMENT."  COOLIDGE V. NEW HAMPSHIRE, 403 U.S.,AT 481.  SEE ALSO
UNITED STATES V. RABINOWITZ, SUPRA, AT 68 (FRANKFURTER, J.,
DISSENTING); DAVIS V. UNITED STATES, 328 U.S. 582, 604 (1946)
(FRANKFURTER, J., DISSENTING). 

OVER TWO CENTURIES AGO, LORD MANSFIELD HELD THAT COMMON-LAW
PRINCIPLES PROHIBITED WARRANTS THAT ORDERED THE ARREST OF UNNAMED
INDIVIDUALS WHO THE OFFICER MIGHT CONCLUDE WERE GUILTY OF SEDITIOUS
LIBEL.  "IT IS NOT FIT," SAID MANSFIELD, "THAT THE RECEIVING OR JUDGING
OF THE INFORMATION SHOULD BE LEFT TO THE DISCRETION OF THE OFFICER. 
THE MAGISTRATE OUGHT TO JUDGE; AND SHOULD GIVE CERTAIN DIRECTIONS TO
THE OFFICER."  LEACH V. THREE OF THE KING'S MESSENGERS, 19 HOW.ST.TR.
1001, 1027 (1765). 

LORD MANSFIELD'S FORMULATION TOUCHES THE VERY HEART OF THE FOURTH
AMENDMENT DIRECTIVE:  THAT, WHERE PRACTICAL, A GOVERNMENTAL SEARCH AND
SEIZURE SHOULD REPRESENT BOTH THE EFFORTS OF THE OFFICER TO GATHER
EVIDENCE OF WRONGFUL ACTS AND THE JUDGMENT OF THE MAGISTRATE THAT THE
COLLECTED EVIDENCE IS SUFFICIENT TO JUSTIFY INVASION OF A CITIZEN'S
PRIVATE PREMISES OR CONVERSATION.  INHERENT IN THE CONCEPT OF A WARRANT
IS ITS ISSUANCE BY A "NEUTRAL AND DETACHED MAGISTRATE."  COOLIDGE V.
NEW HAMPSHIRE, SUPRA, AT 453; KATZ V. UNITED STATES, SUPRA, AT 356. 
THE FURTHER REQUIREMENT OF "PROBABLE CAUSE" INSTRUCTS THE MAGISTRATE
THAT BASELESS SEARCHES SHALL NOT PROCEED. 

THESE FOURTH AMENDMENT FREEDOMS CANNOT PROPERLY BE GUARANTEED IF
DOMESTIC SECURITY SURVEILLANCES MAY BE CONDUCTED SOLELY WITHIN THE
DISCRETION OF THE EXECUTIVE BRANCH.  THE FOURTH AMENDMENT DOES NOT
CONTEMPLATE THE EXECUTIVE OFFICERS OF GOVERNMENT AS NEUTRAL AND
DISINTERESTED MAGISTRATES.  THEIR DUTY AND RESPONSIBILITY ARE TO
ENFORCE THE LAWS, TO INVESTIGATE, AND TO PROSECUTE.  KATZ V. UNITED
STATES, SUPRA, AT 359-360 (DOUGLAS, J., CONCURRING).  BUT THOSE CHARGED
WITH THIS INVESTIGATIVE AND PROSECUTORIAL DUTY SHOULD NOT BE THE SOLE
JUDGES OF WHEN TO UTILIZE CONSTITUTIONALLY SENSITIVE MEANS IN PURSUING
THEIR TASKS.  THE HISTORICAL JUDGMENT, WHICH THE FOURTH AMENDMENT
ACCEPTS, IS THAT UNREVIEWED EXECUTIVE DISCRETION MAY YIELD TOO READILY
TO PRESSURES TO OBTAIN INCRIMINATING EVIDENCE AND OVERLOOK POTENTIAL
INVASIONS OF PRIVACY AND PROTECTED SPEECH.  /17/     IT MAY WELL BE
THAT, IN THE INSTANT CASE, THE GOVERNMENT'S SURVEILLANCE OF PLAMONDON'S
CONVERSATIONS WAS A REASONABLE ONE WHICH READILY WOULD HAVE GAINED
PRIOR JUDICIAL APPROVAL.  BUT THIS COURT "HAS NEVER SUSTAINED A SEARCH
UPON THE SOLE GROUND THAT OFFICERS REASONABLY EXPECTED TO FIND EVIDENCE
OF A PARTICULAR CRIME AND VOLUNTARILY CONFINED THEIR ACTIVITIES TO THE
LEAST INTRUSIVE MEANS CONSISTENT WITH THAT END."  KATZ, SUPRA, AT 356
357.  THE FOURTH AMENDMENT CONTEMPLATES A PRIOR JUDICIAL JUDGMENT, /18/
NOT THE RISK THAT EXECUTIVE DISCRETION MAY BE REASONABLY EXERCISED. 
THIS JUDICIAL ROLE ACCORDS WITH OUR BASIC CONSTITUTIONAL DOCTRINE THAT
INDIVIDUAL FREEDOMS WILL BEST BE PRESERVED THROUGH A SEPARATION OF
POWERS AND DIVISION OF FUNCTIONS AMONG THE DIFFERENT BRANCHES AND
LEVELS OF GOVERNMENT.  HARLAN, THOUGHTS AT A DEDICATION:  KEEPING THE
JUDICIAL FUNCTION IN BALANCE, 49 A.B.A.J. 943-944 (1963).  THE
INDEPENDENT CHECK UPON EXECUTIVE DISCRETION IS NOT SATISFIED, AS THE
GOVERNMENT ARGUES, BY "EXTREMELY LIMITED" POST-SURVEILLANCE JUDICIAL
REVIEW.  /19/  INDEED, POST-SURVEILLANCE REVIEW WOULD NEVER REACH THE
SURVEILLANCES WHICH FAILED TO RESULT IN PROSECUTIONS.  PRIOR REVIEW BY
A NEUTRAL AND DETACHED MAGISTRATE IS THE TIME-TESTED MEANS OF
EFFECTUATING FOURTH AMENDMENT RIGHTS.  BECK V. OHIO, 379 U.S. 89, 96
(1964). 

IT IS TRUE THAT THERE HAVE BEEN SOME EXCEPTIONS TO THE WARRANT
REQUIREMENT.  CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969); TERRY V. OHIO,
392 U.S. 1 (1968); MCDONALD V. UNITED STATES, 335 U.S. 451 (1948);
CARROLL V. UNITED STATES, 267 U.S. 132 (1925).  BUT THOSE EXCEPTIONS
ARE FEW IN NUMBER AND CAREFULLY DELINEATED, KATZ, SUPRA, AT 357; IN
GENERAL, THEY SERVE THE LEGITIMATE NEEDS OF LAW ENFORCEMENT OFFICERS TO
PROTECT THEIR OWN WELL-BEING AND PRESERVE EVIDENCE FROM DESTRUCTION. 
EVEN WHILE CARVING OUT THOSE EXCEPTIONS, THE COURT HAS REAFFIRMED THE
PRINCIPLE THAT THE "POLICE MUST, WHENEVER PRACTICABLE, OBTAIN ADVANCE
JUDICIAL APPROVAL OF SEARCHES AND SEIZURES THROUGH THE WARRANT
PROCEDURE," TERRY V. OHIO, SUPRA, AT 20; CHIMEL V. CALIFORNIA, SUPRA,
AT 762. 

THE GOVERNMENT ARGUES THAT THE SPECIAL CIRCUMSTANCES APPLICABLE TO
DOMESTIC SECURITY SURVEILLANCES NECESSITATE A FURTHER EXCEPTION TO THE
WARRANT REQUIREMENT.  IT IS URGED THAT THE REQUIREMENT OF PRIOR
JUDICIAL REVIEW WOULD OBSTRUCT THE PRESIDENT IN THE DISCHARGE OF HIS
CONSTITUTIONAL DUTY TO PROTECT DOMESTIC SECURITY.  WE ARE TOLD FURTHER
THAT THESE SURVEILLANCES ARE DIRECTED PRIMARILY TO THE COLLECTING AND
MAINTAINING OF INTELLIGENCE WITH RESPECT TO SUBVERSIVE FORCES, AND ARE
NOT AN ATTEMPT TO GATHER EVIDENCE FOR SPECIFIC CRIMINAL PROSECUTIONS. 
IT IS SAID THAT THIS TYPE OF SURVEILLANCE SHOULD NOT BE SUBJECT TO
TRADITIONAL WARRANT REQUIREMENTS WHICH WERE ESTABLISHED TO GOVERN
INVESTIGATION OF CRIMINAL ACTIVITY, NOT ONGOING INTELLIGENCE
GATHERING.  BRIEF FOR UNITED STATES 15-16, 23-24; REPLY BRIEF FOR
UNITED STATES 2-3. 

THE GOVERNMENT FURTHER INSISTS THAT COURTS "AS A PRACTICAL MATTER
WOULD HAVE NEITHER THE KNOWLEDGE NOR THE TECHNIQUES NECESSARY TO
DETERMINE WHETHER THERE WAS PROBABLE CAUSE TO BELIEVE THAT SURVEILLANCE
WAS NECESSARY TO PROTECT NATIONAL SECURITY."  THESE SECURITY PROBLEMS,
THE GOVERNMENT CONTENDS, INVOLVE "A LARGE NUMBER OF COMPLEX AND SUBTLE
FACTORS" BEYOND THE COMPETENCE OF COURTS TO EVALUATE.  REPLY BRIEF FOR
UNITED STATES 4. 

AS A FINAL REASON FOR EXEMPTION FROM A WARRANT REQUIREMENT, THE
GOVERNMENT BELIEVES THAT DISCLOSURE TO A MAGISTRATE OF ALL OR EVEN A
SIGNIFICANT PORTION OF THE INFORMATION INVOLVED IN DOMESTIC SECURITY
SURVEILLANCES "WOULD CREATE SERIOUS POTENTIAL DANGERS TO THE NATIONAL
SECURITY AND TO THE LIVES OF INFORMANTS AND AGENTS.  . . . SECRECY IS
THE ESSENTIAL INGREDIENT IN INTELLIGENCE GATHERING; REQUIRING PRIOR
JUDICIAL AUTHORIZATION WOULD CREATE A GREATER 'DANGER OF LEAKS . . . ,
BECAUSE IN ADDITION TO THE JUDGE, YOU HAVE THE CLERK, THE STENOGRAPHER
AND SOME OTHER OFFICER LIKE A LAW ASSISTANT OR BAILIFF WHO MAY BE
APPRISED OF THE NATURE' OF THE SURVEILLANCE."  BRIEF FOR UNITED STATES
24-25. 

THESE CONTENTIONS IN BEHALF OF A COMPLETE EXEMPTION FROM THE WARRANT
REQUIREMENT, WHEN URGED ON BEHALF OF THE PRESIDENT AND THE NATIONAL
SECURITY IN ITS DOMESTIC IMPLICATIONS, MERIT THE MOST CAREFUL
CONSIDERATION.  WE CERTAINLY DO NOT REJECT THEM LIGHTLY, ESPECIALLY AT
A TIME OF WORLDWIDE FERMENT AND WHEN CIVIL DISORDERS IN THIS COUNTRY
ARE MORE PREVALENT THAN IN THE LESS TURBULENT PERIODS OF OUR HISTORY. 
THERE IS, NO DOUBT, PRAGMATIC FORCE TO THE GOVERNMENT'S POSITION. 

BUT WE DO NOT THINK A CASE HAS BEEN MADE FOR THE REQUESTED DEPARTURE
FROM FOURTH AMENDMENT STANDARDS.  THE CIRCUMSTANCES DESCRIBED DO NOT
JUSTIFY COMPLETE EXEMPTION OF DOMESTIC SECURITY SURVEILLANCE FROM PRIOR
JUDICIAL SCRUTINY.  OFFICIAL SURVEILLANCE, WHETHER ITS PURPOSE BE
CRIMINAL INVESTIGATION OR ONGOING INTELLIGENCE GATHERING, RISKS
INFRINGEMENT OF CONSTITUTIONALLY PROTECTED PRIVACY OF SPEECH.  SECURITY
SURVEILLANCES ARE ESPECIALLY SENSITIVE BECAUSE OF THE INHERENT
VAGUENESS OF THE DOMESTIC SECURITY CONCEPT, THE NECESSARILY BROAD AND
CONTINUING NATURE OF INTELLIGENCE GATHERING, AND THE TEMPTATION TO
UTILIZE SUCH SURVEILLANCES TO OVERSEE POLITICAL DISSENT.  WE RECOGNIZE,
AS WE HAVE BEFORE, THE CONSTITUTIONAL BASIS OF THE PRESIDENT'S DOMESTIC
SECURITY ROLE, BUT WE THINK IT MUST BE EXERCISED IN A MANNER COMPATIBLE
WITH THE FOURTH AMENDMENT.  IN THIS CASE WE HOLD THAT THIS REQUIRES AN
APPROPRIATE PRIOR WARRANT PROCEDURE. 

WE CANNOT ACCEPT THE GOVERNMENT'S ARGUMENT THAT INTERNAL SECURITY
MATTERS ARE TOO SUBTLE AND COMPLEX FOR JUDICIAL EVALUATION.  COURTS
REGULARLY DEAL WITH THE MOST DIFFICULT ISSUES OF OUR SOCIETY.  THERE IS
NO REASON TO BELIEVE THAT FEDERAL JUDGES WILL BE INSENSITIVE TO OR
UNCOMPREHENDING OF THE ISSUES INVOLVED IN DOMESTIC SECURITY CASES. 
CERTAINLY COURTS CAN RECOGNIZE THAT DOMESTIC SECURITY SURVEILLANCE
INVOLVES DIFFERENT CONSIDERATIONS FROM THE SURVEILLANCE OF "ORDINARY
CRIME."  IF THE THREAT IS TOO SUBTLE OR COMPLEX FOR OUR SENIOR LAW
ENFORCEMENT OFFICERS TO CONVEY ITS SIGNIFICANCE TO A COURT, ONE MAY
QUESTION WHETHER THERE IS PROBABLE CAUSE FOR SURVEILLANCE. 

NOR DO WE BELIEVE PRIOR JUDICIAL APPROVAL WILL FRACTURE THE SECRECY
ESSENTIAL TO OFFICIAL INTELLIGENCE GATHERING.  THE INVESTIGATION OF
CRIMINAL ACTIVITY HAS LONG INVOLVED IMPARTING SENSITIVE INFORMATION TO
JUDICIAL OFFICERS WHO HAVE RESPECTED THE CONFIDENTIALITIES INVOLVED. 
JUDGES MAY BE COUNTED UPON TO BE ESPECIALLY CONSCIOUS OF SECURITY
REQUIREMENTS IN NATIONAL SECURITY CASES.  TITLE III OF THE OMNIBUS
CRIME CONTROL AND SAFE STREETS ACT ALREADY HAS IMPOSED THIS
RESPONSIBILITY ON THE JUDICIARY IN CONNECTION WITH SUCH CRIMES AS
ESPIONAGE, SABOTAGE, AND TREASON, SECS. 2516(1)(A) AND (C), EACH OF
WHICH MAY INVOLVE DOMESTIC AS WELL AS FOREIGN SECURITY THREATS. 
MOREOVER, A WARRANT APPLICATION INVOLVES NO PUBLIC OR ADVERSARY
PROCEEDINGS:  IT IS AN EX PARTE REQUEST BEFORE A MAGISTRATE OR JUDGE. 
WHATEVER SECURITY DANGERS CLERICAL AND SECRETARIAL PERSONNEL MAY POSE
CAN BE MINIMIZED BY PROPER ADMINISTRATIVE MEASURES, POSSIBLY TO THE
POINT OF ALLOWING THE GOVERNMENT ITSELF TO PROVIDE THE NECESSARY
CLERICAL ASSISTANCE. 

THUS, WE CONCLUDE THAT THE GOVERNMENT'S CONCERNS DO NOT JUSTIFY
DEPARTURE IN THIS CASE FROM THE CUSTOMARY FOURTH AMENDMENT REQUIREMENT
OF JUDICIAL APPROVAL PRIOR TO INITIATION OF A SEARCH OR SURVEILLANCE. 
ALTHOUGH SOME ADDED BURDEN WILL BE IMPOSED UPON THE ATTORNEY GENERAL,
THIS INCONVENIENCE IS JUSTIFIED IN A FREE SOCIETY TO PROTECT
CONSTITUTIONAL VALUES.  NOR DO WE THINK THE GOVERNMENT'S DOMESTIC
SURVEILLANCE POWERS WILL BE IMPAIRED TO ANY SIGNIFICANT DEGREE.  A
PRIOR WARRANT ESTABLISHES PRESUMPTIVE VALIDITY OF THE SURVEILLANCE AND
WILL MINIMIZE THE BURDEN OF JUSTIFICATION IN POST-SURVEILLANCE JUDICIAL
REVIEW.  BY NO MEANS OF LEAST IMPORTANCE WILL BE THE REASSURANCE OF THE
PUBLIC GENERALLY THAT INDISCRIMINATE WIRETAPPING AND BUGGING OF LAW
ABIDING CITIZENS CANNOT OCCUR. 

        IV 

WE EMPHASIZE, BEFORE CONCLUDING THIS OPINION, THE SCOPE OF OUR
DECISION.  AS STATED AT THE OUTSET, THIS CASE INVOLVES ONLY THE
DOMESTIC ASPECTS OF NATIONAL SECURITY.  WE HAVE NOT ADDRESSED, AND
EXPRESS NO OPINION AS TO, THE ISSUES WHICH MAY BE INVOLVED WITH RESPECT
TO ACTIVITIES OF FOREIGN POWERS OR THEIR AGENTS.  /20/  NOR DOES OUR
DECISION REST ON THE LANGUAGE OF SEC. 2511(3) OR ANY OTHER SECTION OF
TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968. 
THAT ACT DOES NOT ATTEMPT TO DEFINE OR DELINEATE THE POWERS OF THE
PRESIDENT TO MEET DOMESTIC THREATS TO THE NATIONAL SECURITY. 

MOREOVER, WE DO NOT HOLD THAT THE SAME TYPE OF STANDARDS AND
PROCEDURES PRESCRIBED BY TITLE III ARE NECESSARILY APPLICABLE TO THIS
CASE.  WE RECOGNIZE THAT DOMESTIC SECURITY SURVEILLANCE MAY INVOLVE
DIFFERENT POLICY AND PRACTICAL CONSIDERATIONS FROM THE SURVEILLANCE OF
"ORDINARY CRIME."  THE GATHERING OF SECURITY INTELLIGENCE IS OFTEN LONG
RANGE AND INVOLVES THE INTERRELATION OF VARIOUS SOURCES AND TYPES OF
INFORMATION.  THE EXACT TARGETS OF SUCH SURVEILLANCE MAY BE MORE
DIFFICULT TO IDENTIFY THAN IN SURVEILLANCE OPERATIONS AGAINST MANY
TYPES OF CRIME SPECIFIED IN TITLE III.  OFTEN, TOO, THE EMPHASIS OF
DOMESTIC INTELLIGENCE GATHERING IS ON THE PREVENTION OF UNLAWFUL
ACTIVITY OR THE ENHANCEMENT OF THE GOVERNMENT'S PREPAREDNESS FOR SOME
POSSIBLE FUTURE CRISIS OR EMERGENCY.  THUS, THE FOCUS OF DOMESTIC
SURVEILLANCE MAY BE LESS PRECISE THAN THAT DIRECTED AGAINST MORE
CONVENTIONAL TYPES OF CRIME. 

GIVEN THESE POTENTIAL DISTINCTIONS BETWEEN TITLE III CRIMINAL
SURVEILLANCES AND THOSE INVOLVING THE DOMESTIC SECURITY, CONGRESS MAY
WISH TO CONSIDER PROTECTIVE STANDARDS FOR THE LATTER WHICH DIFFER FROM
THOSE ALREADY PRESCRIBED FOR SPECIFIED CRIMES IN TITLE III.  DIFFERENT
STANDARDS MAY BE COMPATIBLE WITH THE FOURTH AMENDMENT IF THEY ARE
REASONABLE BOTH IN RELATION TO THE LEGITIMATE NEED OF GOVERNMENT FOR
INTELLIGENCE INFORMATION AND THE PROTECTED RIGHTS OF OUR CITIZENS.  FOR
THE WARRANT APPLICATION MAY VARY ACCORDING TO THE GOVERNMENTAL INTEREST
TO BE ENFORCED AND THE NATURE OF CITIZEN RIGHTS DESERVING PROTECTION. 
AS THE COURT SAID IN CAMARA V. MUNICIPAL COURT, 387 U.S. 523, 534-535
(1967): 

     "IN CASES IN WHICH THE FOURTH AMENDMENT REQUIRES THAT A
WARRANT

  TO SEARCH BE OBTAINED, 'PROBABLE CAUSE' IS THE STANDARD BY WHICH

 A PARTICULAR DECISION TO SEARCH IS TESTED AGAINST THE

CONSTITUTIONAL MANDATE OF REASONABLENESS.  . . . IN DETERMINING

  WHETHER A PARTICULAR INSPECTION IS REASONABLE-- AND THUS IN

  DETERMINING WHETHER THERE IS PROBABLE CAUSE TO ISSUE A WARRANT

  FOR THAT INSPECTION-- THE NEED FOR THE INSPECTION MUST BE WEIGHED

  IN TERMS OF THESE REASONABLE GOALS OF CODE ENFORCEMENT." 

IT MAY BE THAT CONGRESS, FOR EXAMPLE, WOULD JUDGE THAT THE APPLICATION
AND AFFIDAVIT SHOWING PROBABLE CAUSE NEED NOT FOLLOW THE EXACT
REQUIREMENTS OF SEC. 2518 BUT SHOULD ALLEGE OTHER CIRCUMSTANCES MORE
APPROPRIATE TO DOMESTIC SECURITY CASES; THAT THE REQUEST FOR PRIOR
COURT AUTHORIZATION COULD, IN SENSITIVE CASES, BE MADE TO ANY MEMBER OF
A SPECIALLY DESIGNATED COURT (E.G., THE DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA OR THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT); AND THAT THE TIME AND REPORTING REQUIREMENTS NEED NOT BE SO
STRICT AS THOSE IN SEC. 2518. 

THE ABOVE PARAGRAPH DOES NOT, OF COURSE, ATTEMPT TO GUIDE THE
CONGRESSIONAL JUDGMENT BUT RATHER TO DELINEATE THE PRESENT SCOPE OF OUR
OWN OPINION.  WE DO NOT ATTEMPT TO DETAIL THE PRECISE STANDARDS FOR
DOMESTIC SECURITY WARRANTS ANY MORE THAN OUR DECISION IN KATZ SOUGHT TO
SET THE REFINED REQUIREMENTS FOR THE SPECIFIED CRIMINAL SURVEILLANCES
WHICH NOW CONSTITUTE TITLE III.  WE DO HOLD, HOWEVER, THAT PRIOR
JUDICIAL APPROVAL IS REQUIRED FOR THE TYPE OF DOMESTIC SECURITY
SURVEILLANCE INVOLVED IN THIS CASE AND THAT SUCH APPROVAL MAY BE MADE
IN ACCORDANCE WITH SUCH REASONABLE STANDARDS AS THE CONGRESS MAY
PRESCRIBE. 

        V 

AS THE SURVEILLANCE OF PLAMONDON'S CONVERSATIONS WAS UNLAWFUL,
BECAUSE CONDUCTED WITHOUT PRIOR JUDICIAL APPROVAL, THE COURTS BELOW
CORRECTLY HELD THAT ALDERMAN V. UNITED STATES, 394 U.S. 165 (1969), IS
CONTROLLING AND THAT IT REQUIRES DISCLOSURE TO THE ACCUSED OF HIS OWN
IMPERMISSIBLY INTERCEPTED CONVERSATIONS.  AS STATED IN ALDERMAN, "THE
TRIAL COURT CAN AND SHOULD, WHERE APPROPRIATE, PLACE A DEFENDANT AND
HIS COUNSEL UNDER ENFORCEABLE ORDERS AGAINST UNWARRANTED DISCLOSURE OF
THE MATERIALS WHICH THEY MAY BE ENTITLED TO INSPECT."  394 U.S.,AT
185.  /21/ 

THE JUDGMENT OF THE COURT OF APPEALS IS HEREBY

              AFFIRMED. 

/1/  SEE N. 10, INFRA. 

/2/  THE ATTORNEY GENERAL'S AFFIDAVIT READS AS FOLLOWS: 

"JOHN N. MITCHELL BEING DULY SWORN DEPOSES AND SAYS: 

"1.  I AM THE ATTORNEY GENERAL OF THE UNITED STATES. 

"2.  THIS AFFIDAVIT IS SUBMITTED IN CONNECTION WITH THE GOVERNMENT'S
OPPOSITION TO THE DISCLOSURE TO THE DEFENDANT PLAMONDON OF INFORMATION
CONCERNING THE OVERHEARING OF HIS CONVERSATIONS WHICH OCCURRED DURING
THE COURSE OF ELECTRONIC SURVEILLANCES WHICH THE GOVERNMENT CONTENDS
WERE LEGAL. 

"3.  THE DEFENDANT PLAMONDON HAS PARTICIPATED IN CONVERSATIONS WHICH
WERE OVERHEARD BY GOVERNMENT AGENTS WHO WERE MONITORING WIRETAPS WHICH
WERE BEING EMPLOYED TO GATHER INTELLIGENCE INFORMATION DEEMED NECESSARY
TO PROTECT THE NATION FROM ATTEMPTS OF DOMESTIC ORGANIZATIONS TO ATTACK
AND SUBVERT THE EXISTING STRUCTURE OF THE GOVERNMENT.  THE RECORDS OF
THE DEPARTMENT OF JUSTICE REFLECT THE INSTALLATION OF THESE WIRETAPS
HAD BEEN EXPRESSLY APPROVED BY THE ATTORNEY GENERAL. 

"4.  SUBMITTED WITH THIS AFFIDVAIT IS A SEALED EXHIBIT CONTAINING
THE RECORDS OF THE INTERCEPTED CONVERSATIONS, A DESCRIPTION OF THE
PREMISES THAT WERE THE SUBJECTS OF SURVEILLANCES, AND COPIES OF THE
MEMORANDA REFLECTING THE ATTORNEY GENERAL'S EXPRESS APPROVAL OF THE
INSTALLATION OF THE SURVEILLANCES.     "5.  I CERTIFY THAT IT WOULD
PREJUDICE THE NATIONAL INTEREST TO DISCLOSE THE PARTICULAR FACTS
CONCERNING THESE SURVEILLANCES OTHER THAN TO THE COURT IN CAMERA. 
ACCORDINGLY, THE SEALED EXHIBIT REFERRED TO HEREIN IS BEING SUBMITTED
SOLELY FOR THE COURT'S IN CAMERA INSPECTION AND A COPY OF THE SEALED
EXHIBIT IS NOT BEING FURNISHED TO THE DEFENDANTS.  I WOULD REQUEST THE
COURT, AT THE CONCLUSION OF ITS HEARING ON THIS MATTER, TO PLACE THE
SEALED EXHIBIT IN A SEALED ENVELOPE AND RETURN IT TO THE DEPARTMENT OF
JUSTICE WHERE IT WILL BE RETAINED UNDER SEAL SO THAT IT MAY BE
SUBMITTED TO ANY APPELLATE COURT THAT MAY REVIEW THIS MATTER."     /3/
JURISDICTION WAS CHALLENGED BEFORE THE COURT OF APPEALS ON THE GROUND
THAT THE DISTRICT COURT'S ORDER WAS INTERLOCUTORY AND NOT APPEALABLE
UNDER 28 U.S.C. 1291.  ON THIS ISSUE, THE COURT CORRECTLY HELD THAT IT
DID HAVE JURISDICTION, RELYING UPON THE ALL WRITS ACT, 28 U.S.C. 1651,
AND CASES CITED IN ITS OPINION, 444 F.2D,AT 655-656.  NO ATTACK WAS
MADE IN THIS COURT AS TO THE APPROPRIATENESS OF THE WRIT OF MANDAMUS
PROCEDURE. 

/4/  THESE EXCEPTIONS RELATE TO CERTAIN ACTIVITIES OF COMMUNICATION
COMMON CARRIERS AND THE FEDERAL COMMUNICATIONS COMMISSION, AND TO
SPECIFIED SITUATIONS WHERE A PARTY TO THE COMMUNICATION HAS CONSENTED
TO THE INTERCEPTION. 

/5/  TITLE 18 U.S.C. 2518, SUBSECTION (1), READS AS FOLLOWS: 

"SEC. 2518.  PROCEDURE FOR INTERCEPTION OF WIRE OR ORAL
COMMUNICATIONS 

"(1) EACH APPLICATION FOR AN ORDER AUTHORIZING OR APPROVING THE
INTERCEPTION OF A WIRE OR ORAL COMMUNICATION SHALL BE MADE IN WRITING
UPON OATH OR AFFIRMATION TO A JUDGE OF COMPETENT JURISDICTION AND SHALL
STATE THE APPLICANT'S AUTHORITY TO MAKE SUCH APPLICATION.  EACH
APPLICATION SHALL INCLUDE THE FOLLOWING INFORMATION: 

"(A) THE IDENTITY OF THE INVESTIGATIVE OR LAW ENFORCEMENT OFFICER
MAKING THE APPLICATION, AND THE OFFICER AUTHORIZING THE APPLICATION; 

"(B) A FULL AND COMPLETE STATEMENT OF THE FACTS AND CIRCUMSTANCES
RELIED UPON BY THE APPLICANT, TO JUSTIFY HIS BELIEF THAT AN ORDER
SHOULD BE ISSUED, INCLUDING (I) DETAILS AS TO THE PARTICULAR OFFENSE
THAT HAS BEEN, IS BEING, OR IS ABOUT TO BE COMMITTED, (II) A PARTICULAR
DESCRIPTION OF THE NATURE AND LOCATION OF THE FACILITIES FROM WHICH OR
THE PLACE WHERE THE COMMUNICATION IS TO BE INTERCEPTED, (III) A
PARTICULAR DESCRIPTION OF THE TYPE OF COMMUNICATIONS SOUGHT TO BE
INTERCEPTED, (IV) THE IDENTITY OF THE PERSON, IF KNOWN, COMMITTING THE
OFFENSE AND WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED; 

"(C) A FULL AND COMPLETE STATEMENT AS TO WHETHER OR NOT OTHER
INVESTIGATIVE PROCEDURES HAVE BEEN TRIED AND FAILED OR WHY THEY
REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED OR TO BE TOO
DANGEROUS; 

"(D) A STATEMENT OF THE PERIOD OF TIME FOR WHICH THE INTERCEPTION IS
REQUIRED TO BE MAINTAINED.  IF THE NATURE OF THE INVESTIGATION IS SUCH
THAT THE AUTHORIZATION FOR INTERCEPTION SHOULD NOT AUTOMATICALLY
TERMINATE WHEN THE DESCRIBED TYPE OF COMMUNICATION HAS BEEN FIRST
OBTAINED, A PARTICULAR DESCRIPTION OF FACTS ESTABLISHING PROBABLE CAUSE
TO BELIEVE THAT ADDITIONAL COMMUNICATIONS OF THE SAME TYPE WILL OCCUR
THEREAFTER; 

"(E) A FULL AND COMPLETE STATEMENT OF THE FACTS CONCERNING ALL
PREVIOUS APPLICATIONS KNOWN TO THE INDIVIDUAL AUTHORIZING AND MAKING
THE APPLICATION, MADE TO ANY JUDGE FOR AUTHORIZATION TO INTERCEPT, OR
FOR APPROVAL OF INTERCEPTIONS OF, WIRE OR ORAL COMMUNICATIONS INVOLVING
ANY OF THE SAME PERSONS, FACILITIES OR PLACES SPECIFIED IN THE
APPLICATION, AND THE ACTION TAKEN BY THE JUDGE ON EACH SUCH
APPLICATION; AND 

"(F) WHERE THE APPLICATION IS FOR THE EXTENSION OF AN ORDER, A
STATEMENT SETTING FORTH THE RESULTS THUS FAR OBTAINED FROM THE
INTERCEPTION, OR A REASONABLE EXPLANATION OF THE FAILURE TO OBTAIN SUCH
RESULTS." 

/6/  THE FINAL SENTENCE OF SEC. 2511(3) STATES THAT THE CONTENTS OF
AN INTERCEPTION "BY AUTHORITY OF THE PRESIDENT IN THE EXERCISE OF THE
FOREGOING POWERS MAY BE RECEIVED IN EVIDENCE . . . ONLY WHERE SUCH
INTERCEPTION WAS REASONABLE.  . . . " THIS SENTENCE SEEMS INTENDED TO
ASSURE THAT WHEN THE PRESIDENT CONDUCTS LAWFUL SURVEILLANCE-- PURSUANT
TO WHATEVER POWER HE MAY POSSESS-- THE EVIDENCE IS ADMISSIBLE. 

/7/  114 CONG.REC.  14751.  SENATOR MCCLELLAN WAS THE SPONSOR OF THE
BILL.  THE ABOVE EXCHANGE CONSTITUTES THE ONLY TIME THAT SEC. 2511(3)
WAS EXPRESSLY DEBATED ON THE SENATE OR HOUSE FLOOR.  THE REPORT OF THE
SENATE JUDICIARY COMMITTEE IS NOT SO EXPLICIT AS THE EXCHANGE ON THE
FLOOR, BUT IT APPEARS TO RECOGNIZE THAT UNDER SEC. 2511(3) THE NATIONAL
SECURITY POWER OF THE PRESIDENT-- WHATEVER IT MAY BE-- "IS NOT TO BE
DEEMED DISTURBED."  S. REP. NO. 1097, 90TH CONG., 2D SESS., 94 (1968). 
SEE ALSO THE "NATIONAL SECURITY WIRETAP":  PRESIDENTIAL PREROGATIVE OR
JUDICIAL RESPONSIBILITY, WHERE THE AUTHOR CONCLUDES THAT IN SEC.
2511(3) "CONGRESS TOOK WHAT AMOUNTED TO A POSITION OF NEUTRAL
NONINTERFERENCE ON THE QUESTION OF THE CONSTITUTIONALITY OF WARRANTLESS
NATIONAL SECURITY WIRETAPS AUTHORIZED BY THE PRESIDENT."  45
S.CAL.L.REV.  888, 889 (1972). 

/8/  SECTION 2511(3) REFERS TO "THE CONSTITUTIONAL POWER OF THE
PRESIDENT" IN TWO TYPES OF SITUATIONS:  (I) WHERE NECESSARY TO PROTECT
AGAINST ATTACK, OTHER HOSTILE ACTS OR INTELLIGENCE ACTIVITIES OF A
"FOREIGN POWER"; OR (II) WHERE NECESSARY TO PROTECT AGAINST THE
OVERTHROW OF THE GOVERNMENT OR OTHER CLEAR AND PRESENT DANGER TO THE
STRUCTURE OR EXISTENCE OF THE GOVERNMENT.  ALTHOUGH BOTH OF THE
SPECIFIED SITUATIONS ARE SOMETIMES REFERRED TO AS "NATIONAL SECURITY"
THREATS, THE TERM "NATIONAL SECURITY" IS USED ONLY IN THE FIRST
SENTENCE OF SEC. 2511(3) WITH RESPECT TO THE ACTIVITIES OF FOREIGN
POWERS.  THIS CASE INVOLVES ONLY THE SECOND SENTENCE OF SEC. 2511(3),
WITH THE THREAT EMANATING-- ACCORDING TO THE ATTORNEY GENERAL'S
AFFIDAVIT-- FROM "DOMESTIC ORGANIZATIONS."  ALTHOUGH WE ATTEMPT NO
PRECISE DEFINITION, WE USE THE TERM "DOMESTIC ORGANIZATION" IN THIS
OPINION TO MEAN A GROUP OR ORGANIZATION (WHETHER FORMALLY OR INFORMALLY
CONSTITUTED) COMPOSED OF CITIZENS OF THE UNITED STATES AND WHICH HAS NO
SIGNIFICANT CONNECTION WITH A FOREIGN POWER, ITS AGENTS OR AGENCIES. 
NO DOUBT THERE ARE CASES WHERE IT WILL BE DIFFICULT TO DISTINGUISH
BETWEEN "DOMESTIC" AND "FOREIGN" UNLAWFUL ACTIVITIES DIRECTED AGAINST
THE GOVERNMENT OF THE UNITED STATES WHERE THERE IS COLLABORATION IN
VARYING DEGREES BETWEEN DOMESTIC GROUPS OR ORGANIZATIONS AND AGENTS OR
AGENCIES OF FOREIGN POWERS.  BUT THIS IS NOT SUCH A CASE. 

/9/  ENACTMENT OF TITLE III REFLECTS CONGRESSIONAL RECOGNITION OF
THE IMPORTANCE OF SUCH SURVEILLANCE IN COMBATTING VARIOUS TYPES OF
CRIME.  FRANK S. HOGAN, DISTRICT ATTORNEY FOR NEW YORK COUNTY FOR OVER
25 YEARS, DESCRIBED TELEPHONIC INTERCEPTION, PURSUANT TO COURT ORDER,
AS "THE SINGLE MOST VALUABLE WEAPON IN LAW ENFORCEMENT'S FIGHT AGAINST
ORGANIZED CRIME."  117 CONG.REC.  14051.  THE "CRIME COMMISSION"
APPOINTED BY PRESIDENT JOHNSON NOTED THAT "(THE GREAT MAJORITY OF LAW
ENFORCEMENT OFFICIALS BELIEVE THAT THE EVIDENCE NECESSARY TO BRING
CRIMINAL SANCTIONS TO BEAR CONSISTENTLY ON THE HIGHER ECHELONS OF
ORGANIZED CRIME WILL NOT BE OBTAINED WITHOUT THE AID OF ELECTRONIC
SURVEILLANCE TECHNIQUES.  THEY MAINTAIN THESE TECHNIQUES ARE
INDISPENSABLE TO DEVELOP ADEQUATE STRATEGIC INTELLIGENCE CONCERNING
ORGANIZED CRIME, TO SET UP SPECIFIC INVESTIGATIONS, TO DEVELOP
WITNESSES, TO CORROBORATE THEIR TESTIMONY, AND TO SERVE AS SUBSTITUTES
FOR THEM-- EACH A NECESSARY STEP IN THE EVIDENCE-GATHERING PROCESS IN
ORGANIZED CRIME INVESTIGATIONS AND PROSECUTIONS."  REPORT BY THE
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 201 (1967). 

/10/  IN THAT MONTH ATTORNEY GENERAL TOM CLARK ADVISED PRESIDENT
TRUMAN OF THE NECESSITY OF USING WIRETAPS "IN CASES VITALLY AFFECTING
THE DOMESTIC SECURITY."  IN MAY 1940 PRESIDENT ROOSEVELT HAD AUTHORIZED
ATTORNEY GENERAL JACKSON TO UTILIZE WIRETAPPING IN MATTERS "INVOLVING
THE DEFENSE OF THE NATION," BUT IT IS QUESTIONABLE WHETHER THIS
LANGUAGE WAS MEANT TO APPLY TO SOLELY DOMESTIC SUBVERSION.  THE NATURE
AND EXTENT OF WIRETAPPING APPARENTLY VARIED UNDER DIFFERENT
ADMINISTRATIONS AND ATTORNEYS GENERAL, BUT, EXCEPT FOR THE SHARP
CURTAILMENT UNDER ATTORNEY GENERAL RAMSEY CLARK IN THE LATTER YEARS OF
THE JOHNSON ADMINISTRATION, ELECTRONIC SURVEILLANCE HAS BEEN USED BOTH
AGAINST ORGANIZED CRIME AND IN DOMESTIC SECURITY CASES AT LEAST SINCE
THE 1946 MEMORANDUM FROM CLARK TO TRUMAN.  BRIEF FOR UNITED STATES 16
18; BRIEF FOR RESPONDENTS 51-56; 117 CONG.REC.  14056. 

/11/  BROWNELL, THE PUBLIC SECURITY AND WIRE TAPPING, 39 CORNELL
L.Q. 195, 202 (1954).  SEE ALSO ROGERS, THE CASE FOR WIRE TAPPING, 63
YALE L.J. 792 (1954). 

/12/  THE GOVERNMENT ASSERTS THAT THERE WERE 1,562 BOMBING INCIDENTS
IN THE UNITED STATES FROM JANUARY 1, 1971, TO JULY 1, 1971, MOST OF
WHICH INVOLVED GOVERNMENT RELATED FACILITIES.  RESPONDENTS DISPUTE
THESE STATISTICS AS INCORPORATING MANY FRIVOLOUS INCIDENTS AS WELL AS
BOMBINGS AGAINST NONGOVERNMENTAL FACILITIES.  THE PRECISE LEVEL OF THIS
ACTIVITY, HOWEVER, IS NOT RELEVANT TO THE DISPOSITION OF THIS CASE. 
BRIEF FOR UNITED STATES 18; BRIEF FOR RESPONDENTS 26-29; REPLY BRIEF
FOR UNITED STATES 13. 

/13/  PROFESSOR ALAN WESTIN HAS WRITTEN ON THE LIKELY COURSE OF
FUTURE CONFLICT BETWEEN THE VALUE OF PRIVACY AND THE "NEW TECHNOLOGY"
OF LAW ENFORCEMENT.  MUCH OF THE BOOK DETAILS TECHNIQUES OF PHYSICAL
AND ELECTRONIC SURVEILLANCE AND SUCH POSSIBLE THREATS TO PERSONAL
PRIVACY AS PSYCHOLOGICAL AND PERSONALITY TESTING AND ELECTRONIC
INFORMATION STORAGE AND RETRIEVAL.  NOT ALL OF THE CONTEMPORARY THREATS
TO PRIVACY EMANATE DIRECTLY FROM THE PRESSURES OF CRIME CONTROL. 
PRIVACY AND FREEDOM (1967). 

/14/  THOUGH THE TOTAL NUMBER OF INTERCEPTS AUTHORIZED BY STATE AND
FEDERAL JUDGES PURSUANT TO TIT. III OF THE 1968 OMNIBUS CRIME CONTROL
AND SAFE STREETS ACT WAS 597 IN 1970, EACH SURVEILLANCE MAY INVOLVE
INTERCEPTION OF HUNDREDS OF DIFFERENT CONVERSATIONS.  THE AVERAGE
INTERCEPT IN 1970 INVOLVED 44 PEOPLE AND 655 CONVERSATIONS, OF WHICH
295 OR 45% WERE INCRIMINATING.  117 CONG.REC.  14052. 

/15/  114 CONG.REC.  14750.  THE SUBSEQUENT ASSURANCES, QUOTED IN
PART I OF THE OPINION, THAT SEC. 2511(3) IMPLIED NO STATUTORY GRANT,
CONTRACTION, OR DEFINITION OF PRESIDENTIAL POWER EASED THE SENATOR'S
MISGIVINGS. 

/16/  THIS VIEW HAS NOT BEEN ACCEPTED.  IN CHIMEL V. CALIFORNIA, 395
U.S. 752 (1969), THE COURT CONSIDERED THE GOVERNMENT'S CONTENTION THAT
THE SEARCH BE JUDGED ON A GENERAL "REASONABLENESS" STANDARD WITHOUT
REFERENCE TO THE WARRANT CLAUSE.  THE COURT CONCLUDED THAT ARGUMENT WAS
"FOUNDED ON LITTLE MORE THAN A SUBJECTIVE VIEW REGARDING THE
ACCEPTABILITY OF CERTAIN SORTS OF POLICE CONDUCT, AND NOT ON
CONSIDERATIONS RELEVANT TO FOURTH AMENDMENT INTERESTS.  UNDER SUCH AN
UNCONFINED ANALYSIS, FOURTH AMENDMENT PROTECTION IN THIS AREA WOULD
APPROACH THE EVAPORATION POINT."  ID., AT 764-765. 

/17/  N. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT
TO THE UNITED STATES CONSTITUTION 79-105 (1937). 

/18/  WE USE THE WORD "JUDICIAL" TO CONNOTE THE TRADITIONAL FOURTH
AMENDMENT REQUIREMENT OF A NEUTRAL AND DETACHED MAGISTRATE. 

/19/  THE GOVERNMENT ARGUES THAT DOMESTIC SECURITY WIRETAPS SHOULD
BE UPHELD BY COURTS IN POST-SURVEILLANCE REVIEW "(UNLESS IT APPEARS
THAT THE ATTORNEY GENERAL'S DETERMINATION THAT THE PROPOSED
SURVEILLANCE RELATES TO A NATIONAL SECURITY MATTER IS ARBITRARY AND
CAPRICIOUS, I.E., THAT IT CONSTITUTES A CLEAR ABUSE OF THE BROAD
DISCRETION THAT THE ATTORNEY GENERAL HAS TO OBTAIN ALL INFORMATION THAT
WILL BE HELPFUL TO THE PRESIDENT IN PROTECTING THE GOVERNMENT . . . "
AGAINST THE VARIOUS UNLAWFUL ACTS IN SEC. 2511(3).  BRIEF FOR UNITED
STATES 22. 

/20/  SEE N. 8, SUPRA.  FOR THE VIEW THAT WARRANTLESS SURVEILLANCE,
THOUGH IMPERMISSIBLE IN DOMESTIC SECURITY CASES, MAY BE CONSTITUTIONAL
WHERE FOREIGN POWERS ARE INVOLVED, SEE UNITED STATES V. SMITH, 321
F.SUPP.  424, 425-426 (CD CAL. 1971); AND AMERICAN BAR ASSOCIATION
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, ELECTRONIC SURVEILLANCE 120,
121 (APPROVED DRAFT 1971, AND FEB. 1971 SUPP. 11).  SEE ALSO UNITED
STATES V. CLAY, 430 F.2D 165 (CA5 1970). 

/21/  WE THINK IT UNNECESSARY AT THIS TIME AND ON THE FACTS OF THIS
CASE TO CONSIDER THE ARGUMENTS ADVANCED BY THE GOVERNMENT FOR A RE
EXAMINATION OF THE BASIS AND SCOPE OF THE COURT'S DECISION IN
ALDERMAN. 

THE CHIEF JUSTICE CONCURS IN THE RESULT. 

MR. JUSTICE REHNQUIST TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN IN THE OPINION OF THE COURT, I ADD THESE WORDS IN
SUPPORT OF IT. 

THIS IS AN IMPORTANT PHASE IN THE CAMPAIGN OF THE POLICE AND
INTELLIGENCE AGENCIES TO OBTAIN EXEMPTIONS FROM THE WARRANT CLAUSE OF
THE FOURTH AMENDMENT.  FOR, DUE TO THE CLANDESTINE NATURE OF ELECTRONIC
EAVESDROPPING, THE NEED IS ACUTE FOR PLACING ON THE GOVERNMENT THE
HEAVY BURDEN TO SHOW THAT "EXIGENCIES OF THE SITUATION (MAKE ITS)
COURSE IMPERATIVE."  /1/  OTHER ABUSES, SUCH AS THE SEARCH INCIDENT TO
ARREST, HAVE BEEN PARTLY DETERRED BY THE THREAT OF DAMAGE ACTIONS
AGAINST OFFENDING OFFICERS, /2/  THE RISK OF ADVERSE PUBLICITY, OR THE
POSSIBILITY OF REFORM THROUGH THE POLITICAL PROCESS.  THESE LATTER
SAFEGUARDS, HOWEVER, ARE INEFFECTIVE AGAINST LAWLESS WIRETAPPING AND
"BUGGING" OF WHICH THEIR VICTIMS ARE TOTALLY UNAWARE.  MOREOEVER, EVEN
THE RISK OF EXCLUSION OF TAINTED EVIDENCE WOULD HERE APPEAR TO BE OF
NEGLIGIBLE DETERRENT VALUE INASMUCH AS THE UNITED STATES FRANKLY
CONCEDES THAT THE PRIMARY PURPOSE OF THESE SEARCHES IS TO FORTIFY ITS
INTELLIGENCE COLLAGE RATHER THAN TO ACCUMULATE EVIDENCE TO SUPPORT
INDICTMENTS AND CONVICTIONS.  IF THE WARRANT CLAUSE WERE HELD
INAPPLICABLE HERE, THEN THE FEDERAL INTELLIGENCE MACHINE WOULD
LITERALLY ENJOY UNCHECKED DISCRETION.     HERE, FEDERAL AGENTS WISH TO
RUMMAGE FOR MONTHS ON END THROUGH EVERY CONVERSATION, NO MATTER HOW
INTIMATE OR PERSONAL, CARRIED OVER SELECTED TELEPHONE LINES, SIMPLY TO
SEIZE THOSE FEW UTTERANCES WHICH MAY ADD TO THEIR SENSE OF THE PULSE OF
A DOMESTIC UNDERGROUND. 

WE ARE TOLD THAT ONE NATIONAL SECURITY WIRETAP LASTED FOR 14 MONTHS
AND MONITORED OVER 900 CONVERSATIONS.  SENATOR EDWARD KENNEDY FOUND
RECENTLY THAT "WARRANTLESS DEVICES ACCOUNTED FOR AN AVERAGE OF 78 TO
209 DAYS OF LISTENING PER DEVICE, AS COMPARED WITH A 13-DAY PER DEVICE
AVERAGE FOR THOSE DEVICES INSTALLED UNDER COURT ORDER."  /3/  HE
CONCLUDED THAT THE GOVERNMENT'S REVELATIONS POSED "THE FRIGHTENING
POSSIBILITY THAT THE CONVERSATIONS OF UNTOLD THOUSANDS OF CITIZENS OF
THIS COUNTRY ARE BEING MONITORED ON SECRET DEVICES WHICH NO JUDGE HAS
AUTHORIZED AND WHICH MAY REMAIN IN OPERATION FOR MONTHS AND PERHAPS
YEARS AT A TIME."  /4/  EVEN THE MOST INNOCENT AND RANDOM CALLER WHO
USES OR TELEPHONES INTO A TAPPED LINE CAN BECOME A FLAGGED NUMBER IN
THE GOVERNMENT'S DATA BANK.  SEE LAIRD V. TATUM, 1971 TERM, NO. 71
288. 

SUCH GROSS INVASIONS OF PRIVACY EPITOMIZE THE VERY EVIL TO WHICH THE
WARRANT CLAUSE WAS DIRECTED.  THIS COURT HAS BEEN THE UNFORTUNATE
WITNESS TO THE HAZARDS OF POLICE INTRUSIONS WHICH DID NOT RECEIVE PRIOR
SANCTION BY INDEPENDENT MAGISTRATES.  FOR EXAMPLE, IN WEEKS V. UNITED
STATES, 232 U.S. 383; MAPP V. OHIO, 367 U.S. 643; AND CHIMEL V.
CALIFORNIA, 395 U.S. 752, ENTIRE HOMES WERE RANSACKED PURSUANT TO
WARRANTLESS SEARCHES.  INDEED, IN KREMEN V. UNITED STATES, 353 U.S.
346, THE ENTIRE CONTENTS OF A CABIN, TOTALING MORE THAN 800 ITEMS (SUCH
AS "1 DISH RAG") /5/  WERE SEIZED INCIDENT TO AN ARREST OF ITS OCCUPANT
AND WERE TAKEN TO SAN FRANCISCO FOR STUDY BY FBI AGENTS.  IN A SIMILAR
CASE, VONCLEEF V. NEW JERSEY, 395 U.S. 814, POLICE, WITHOUT A WARRANT,
SEARCHED AN ARRESTEE'S HOUSE FOR THREE HOURS, EVENTUALLY SEIZING
"SEVERAL THOUSAND ARTICLES, INCLUDING BOOKS, MAGAZINES, CATALOGUES,
MAILING LISTS, PRIVATE CORRESPONDENCE (BOTH OPEN AND UNOPENED),
PHOTOGRAPHS, DRAWINGS, AND FILM."  ID., AT 815.  IN SILVERTHORNE LUMBER
CO. V. UNITED STATES, 251 U.S. 385, FEDERAL AGENTS "WITHOUT A SHADOW OF
AUTHORITY" RAIDED THE OFFICES OF ONE OF THE PETITIONERS (THE
PROPRIETORS OF WHICH HAD EARLIER BEEN JAILED) AND "MADE A CLEAN SWEEP
OF ALL THE BOOKS, PAPERS AND DOCUMENTS FOUND THERE."  JUSTICE HOLMES,
FOR THE COURT, TERMED THIS TACTIC AN "OUTRAGE."  ID., AT 390, 391.  IN
STANFORD V. TEXAS, 379 U.S. 476, STATE POLICE SEIZED MORE THAN 2,000
ITEMS OF LITERATURE, INCLUDING THE WRITINGS OF MR. JUSTICE BLACK,
PURSUANT TO A GENERAL SEARCH WARRANT ISSUED TO INSPECT AN ALLEGED
SUBVERSIVE'S HOME. 

THAT "DOMESTIC SECURITY" IS SAID TO BE INVOLVED HERE DOES NOT DRAW
THIS CASE OUTSIDE THE MAINSTREAM OF FOURTH AMENDMENT LAW.  RATHER, THE
RECURRING DESIRE OF REIGNING OFFICIALS TO EMPLOY DRAGNET TECHNIQUES TO
INTIMIDATE THEIR CRITICS LIES AT THE CORE OF THAT PROHIBITION.  FOR IT
WAS SUCH EXCESSES AS THE USE OF GENERAL WARRANTS AND THE WRITS OF
ASSISTANCE THAT LED TO THE RATIFICATION OF THE FOURTH AMENDMENT.  IN
ENTICK V. CARRINGTON, 19 HOW.ST.TR. 1029, 95 ENG.REP.  807, DECIDED IN
1765, ONE FINDS A STRIKING PARALLEL TO THE EXECUTIVE WARRANTS UTILIZED
HERE.  THE SECRETARY OF STATE HAD ISSUED GENERAL EXECUTIVE WARRANTS TO
HIS MESSENGERS AUTHORIZING THEM TO ROAM ABOUT AND TO SEIZE LIBELOUS
MATERIAL AND LIBELLANTS OF THE SOVEREIGN.  ENTICK, A CRITIC OF THE
CROWN, WAS THE VICTIM OF ONE SUCH GENERAL SEARCH DURING WHICH HIS
SEDITIOUS PUBLICATIONS WERE IMPOUNDED.  HE BROUGHT A SUCCESSFUL DAMAGE
ACTION FOR TRESPASS AGAINST THE MESSENGERS.  THE VERDICT WAS SUSTAINED
ON APPEAL.  LORD CAMDEN WROTE THAT IF SUCH SWEEPING TACTICS WERE
VALIDATED, THEN "THE SECRET CABINETS AND BUREAUS OF EVERY SUBJECT IN
THIS KINDOM WILL BE THROWN OPEN TO THE SEARCH AND INSPECTION OF A
MESSENGER, WHENEVER THE SECRETARY OF STATE SHALL THINK FIT TO CHARGE,
OR EVEN TO SUSPECT, A PERSON TO BE THE AUTHOR, PRINTER, OR PUBLISHER OF
A SEDITIOUS LIBEL."  ID., AT 1063.  IN A RELATED AND SIMILAR
PROCEEDING, HUCKLE V. MONEY, 2 WILS.K.B. 206, 207, 95 ENG.REP.  768,
769 (1763), THE SAME JUDGE WHO PRESIDED OVER ENTICK'S APPEAL HELD FOR
ANOTHER VICTIM OF THE SAME DESPOTIC PRACTICE, SAYING "(TO ENTER A MAN'S
HOUSE BY VIRTUE OF A NAMELESS WARRANT, IN ORDER TO PROCURE EVIDENCE, IS
WORSE THAN THE SPANISH INQUISITION.  . . . " SEE ALSO WILKES V. WOOD,
19 HOW.ST.TR. 1153, 98 ENG.REP.  489 (1763).  AS EARLY AS BOYD V.
UNITED STATES, 116 U.S. 616, 626, AND AS RECENTLY AS STANFORD V. TEXAS,
SUPRA, AT 485-486; BERGER V. NEW YORK, 388 U.S. 41, 49-50; AND COOLIDGE
V. NEW HAMPSHIRE, SUPRA, AT 455 N. 9, THE TYRANNICAL INVASIONS
DESCRIBED AND ASSAILED IN ENTICK, HUCKLE, AND WILKES, PRACTICES WHICH
ALSO WERE ENDURED BY THE COLONISTS, /6/  HAVE BEEN RECOGNIZED AS THE
PRIMARY ABUSES WHICH ENSURED THE WARRANT CLAUSE A PROMINENT PLACE IN
OUR BILL OF RIGHTS.  SEE J. LANDYNSKI, SEARCH AND SEIZURE AND THE
SUPREME COURT 28-48 (1966).  N. LASSON, THE HISTORY AND DEVELOPMENT OF
THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 43-78 (1937);
NOTE, WARRANTLESS SEARCHES IN LIGHT OF CHIMEL:  A RETURN TO THE
ORIGINAL UNDERSTANDING, 11 ARIZ.L.REV.  457, 460-476 (1969). 

AS ILLUSTRATED BY A FLOOD OF CASES BEFORE US THIS TERM, E.G., LAIRD
V. TATUM, NO. 71-288; GELBARD V. UNITED STATES, NO. 71-110; UNITED
STATES V. EGAN, NO. 71-263; UNITED STATES V. CALDWELL, NO. 70-57;
UNITED STATES V. GRAVEL, NO. 71-1026; KLEINDIENST V. MANDEL, NO. 71-16;
WE ARE CURRENTLY IN THE THROES OF ANOTHER NATIONAL SEIZURE OF PARANOIA,
RESEMBLING THE HYSTERIA WHICH SURROUNDED THE ALIEN AND SEDITION ACTS,
THE PALMER RAIDS, AND THE MCCARTHY ERA.  THOSE WHO REGISTER DISSENT OR
WHO PETITION THEIR GOVERNMENTS FOR REDRESS ARE SUBJECTED TO SCRUTINY BY
GRAND JURIES, /7/  BY THE FBI, /8/  OR EVEN BY THE MILITARY.  /9/
THEIR ASSOCIATES ARE INTERROGATED.  THEIR HOMES ARE BUGGED AND THEIR
TELEPHONES ARE WIRETAPPED.  THEY ARE BEFRIENDED BY SECRET GOVERNMENT
INFORMERS.  /10/  THEIR PATRIOTISM AND LOYALTY ARE QUESTIONED.  /11/
SENATOR SAM ERVIN, WHO HAS CHAIRED HEARINGS ON MILITARY SURVEILLANCE OF
CIVILIAN DISSIDENTS, WARNS THAT "IT IS NOT AN EXAGGERATION TO TALK IN
TERMS OF HUNDREDS OF THOUSANDS OF . . . DOSSIERS."  /12/  SENATOR
KENNEDY, AS MENTIONED SUPRA, FOUND "THE FRIGHTENING POSSIBILITY THAT
THE CONVERSATIONS OF UNTOLD THOUSANDS ARE BEING MONITORED ON SECRET
DEVICES."  MORE THAN OUR PRIVACY IS IMPLICATED.  ALSO AT STAKE IS THE
REACH OF THE GOVERNMENT'S POWER TO INTIMIDATE ITS CRITICS. 

WHEN THE EXECUTIVE ATTEMPTS TO EXCUSE THESE TACTICS AS ESSENTIAL TO
ITS DEFENSE AGAINST INTERNAL SUBVERSION, WE ARE OBLIGED TO REMIND IT,
WITHOUT APOLOGY, OF THIS COURT'S LONG COMMITMENT TO THE PRESERVATION OF
THE BILL OF RIGHTS FROM THE CORROSIVE ENVIRONMENT OF PRECISELY SUCH
EXPEDIENTS.  /13/  AS JUSTICE BRANDEIS SAID, CONCURRING IN WHITNEY V.
CALIFORNIA, 247 U.S. 357, 377:  "THOSE WHO WON OUR INDEPENDENCE BY
REVOLUTION WERE NOT COWARDS.  THEY DID NOT FEAR POLITICAL CHANGE.  THEY
DID NOT EXALT ORDER AT THE COST OF LIBERTY."  CHIEF JUSTICE WARREN PUT
IT THIS WAY IN UNITED STATES V. ROBEL, 389 U.S. 258, 264:  "(THIS
CONCEPT OF 'NATIONAL DEFENSE' CANNOT BE DEEMED AN END IN ITSELF,
JUSTIFYING ANY . . . POWER DESIGNED TO PROMOTE SUCH A GOAL.  IMPLICIT
IN THE TERM 'NATIONAL DEFENSE' IS THE NOTION OF DEFENDING THOSE VALUES
AND IDEAS WHICH SET THIS NATION APART.  . . . IT WOULD INDEED BE IRONIC
IF, IN THE NAME OF NATIONAL DEFENSE, WE WOULD SANCTION THE SUBVERSION
OF . . . THOSE LIBERTIES . . . WHICH (MAKE) THE DEFENSE OF THE NATION
WORTHWHILE." 

THE WARRANT CLAUSE HAS STOOD AS A BARRIER AGAINST INTRUSIONS BY
OFFICIALDOM INTO THE PRIVACIES OF LIFE.  BUT IF THAT BARRIER WERE
LOWERED NOW TO PERMIT SUSPECTED SUBVERSIVES' MOST INTIMATE
CONVERSATIONS TO BE PILLAGED THEN WHY COULD NOT THEIR ABODES NOR MAIL
BE SECRETLY SEARCHED BY THE SAME AUTHORITY?  TO DEFEAT SO TERRIFYING A
CLAIM OF INHERENT POWER WE NEED ONLY STAND BY THE ENDURING VALUES
SERVED BY THE FOURTH AMENDMENT.  AS WE STATED LAST TERM IN COOLIDGE V.
NEW HAMPSHIRE, 403 U.S. 443, 455:  "IN TIMES OF UNREST, WHETHER CAUSED
BY CRIME OR RACIAL CONFLICT OR FEAR OF INTERNAL SUBVERSION, THIS BASIC
LAW AND THE VALUES THAT IT REPRESENTS MAY APPEAR UNREALISTIC OR
'EXTRAVAGANT' TO SOME.  BUT THE VALUES WERE THOSE OF THE AUTHORS OF OUR
FUNDAMENTAL CONSTITUTIONAL CONCEPTS.  IN TIMES NOT ALTOGETHER UNLIKE
OUR OWN THEY WON . . . A RIGHT OF PERSONAL SECURITY AGAINST ARBITRARY
INTRUSIONS.  . . . IF TIMES HAVE CHANGED, REDUCING EVERYMAN'S SCOPE TO
DO AS HE PLEASES IN AN URBAN AND INDUSTRIAL WORLD, THE CHANGES HAVE
MADE THE VALUES SERVED BY THE FOURTH AMENDMENT MORE, NOT LESS,
IMPORTANT."  WE HAVE AS MUCH OR MORE TO FEAR FROM THE EROSION OF OUR
SENSE OF PRIVACY AND INDEPENDENCE BY THE OMNIPRESENT ELECTRONIC EAR OF
THE GOVERNMENT AS WE DO FROM THE LIKELIHOOD THAT FOMENTERS OF DOMESTIC
UPHEAVAL WILL MODIFY OUR FORM OF GOVERNING.  /14/ 

/1/  COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 455; MCDONALD V.
UNITED STATES, 335 U.S. 451, 456; CHIMEL V. CALIFORNIA, 395 U.S. 752;
UNITED STATES V. JEFFERS, 342 U.S. 48, 51. 

/2/  SEE BIVENS V. SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF
NARCOTICS, 403 U.S. 388. 

/3/  LETTER FROM SENATOR EDWARD KENNEDY TO MEMBERS OF THE
SUBCOMMITTEE ON ADMINISTRATIVE PROCEDURE AND PRACTICE OF THE SENATE
JUDICIARY COMMITTEE, DEC. 17, 1971, P. 2.  SENATOR KENNEDY INCLUDED IN
HIS LETTER A CHART COMPARING COURT-ORDERED AND DEPARTMENT-ORDERED
WIRETAPPING AND BUGGING BY FEDERAL AGENCIES.  THIS CHART IS REPRODUCED
IN THE APPENDIX TO THIS OPINION.  FOR A STATISTICAL BREAKDOWN BY
DURATION, LOCATION, AND IMPLEMENTING AGENCY OF THE 1,042 WIRETAP ORDERS
ISSUED IN 1971 BY STATE AND FEDERAL JUDGES, SEE ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS, REPORT ON APPLICATIONS FOR ORDERS
AUTHORIZING OR APPROVING THE INTERCEPTION OF WIRE OR ORAL
COMMUNICATIONS FOR 1971; THE WASHINGTON POST, MAY 14, 1972, P. A30,
COL. 1 (FINAL ED.). 

/4/  KENNEDY, SUPRA, N. 3, AT 2.  SEE ALSO H. SCHWARTZ, A REPORT ON
THE COSTS AND BENEFITS OF ELECTRONIC SURVEILLANCE (AMERICAN CIVIL
LIBERTIES UNION 1971); SCHWARTZ, THE LEGITIMATION OF ELECTRONIC
EAVESDROPPING:  THE POLITICS OF "LAW AND ORDER," 67 MICH.L.REV.  455
(1969). 

/5/  FOR A COMPLETE ITEMIZATION OF THE OBJECTS SEIZED, SEE THE
APPENDIX TO KREMEN V. UNITED STATES, 353 U.S. 346, 349. 

/6/  "ON THIS SIDE OF THE ATLANTIC, THE ARGUMENT CONCERNING THE
VALIDITY OF GENERAL SEARCH WARRANTS CENTERED AROUND THE WRITS OF
ASSISTANCE WHICH WERE USED BY CUSTOMS OFFICERS FOR THE DETECTION OF
SMUGGLED GOODS."  N. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION 51 (1937).  IN FEBRUARY
1761, ALL WRITS EXPIRED SIX MONTHS AFTER THE DEATH OF GEORGE II AND
BOSTON MERCHANTS PETITIONED THE SUPERIOR COURT IN OPPOSITION TO THE
GRANTING OF ANY NEW WRITS.  THE MERCHANTS WERE REPRESENTED BY JAMES
OTIS, JR., WHO LATER BECAME A LEADER IN THE MOVEMENT FOR INDEPENDENCE. 

"OTIS COMPLETELY ELECTRIFIED THE LARGE AUDIENCE IN THE COURT ROOM
WITH HIS DENUNCIATION OF ENGLAND'S WHOLE POLICY TOWARD THE COLONIES AND
WITH HIS ARGUMENT AGAINST GENERAL WARRANTS.  JOHN ADAMS, THEN A YOUNG
MAN LESS THAN TWENTY-SIX YEARS OF AGE AND NOT YET ADMITTED TO THE BAR,
WAS A SPECTATOR, AND MANY YEARS LATER DESCRIBED THE SCENE IN THESE OFT
QUOTED WORDS:  'I DO SAY IN THE MOST SOLEMN MANNER, THAT MR. OTIS'S
ORATION AGAINST THE WRITS OF ASSISTANCE BREATHED INTO THIS NATION THE
BREATH OF LIFE.'  HE 'WAS A FLAME OF FIRE.  EVERY MAN OF A CROWDED
AUDIENCE APPEARED TO ME TO GO AWAY, AS I DID, READY TO TAKE ARMS
AGAINST WRITS OF ASSISTANCE.  THEN AND THERE WAS THE FIRST SCENE OF
OPPOSITION TO THE ARBITRARY CLAIMS OF GREAT BRITAIN.  THEN AND THERE
THE CHILD INDEPENDENCE WAS BORN.  IN 15 YEARS, NAMELY IN 1776, HE GREW
TO MANHOOD, AND DECLARED HIMSELF FREE.'"  ID., AT 58-59. 

/7/  SEE DONNER & CERRUTI, THE GRAND JURY NETWORK:  HOW THE NIXON
ADMINISTRATION HAS SECRETLY PERVERTED A TRADITIONAL SAFEGUARD OF
INDIVIDUAL RIGHTS, 214 THE NATION 5 (1972).  SEE ALSO UNITED STATES V.
CALDWELL, O.T. 1971, NO. 70-57; UNITED STATES V. GRAVEL, O.T. 1971, NO.
71-1026; GELBARD V. UNITED STATES AND UNITED STATES V. EGAN, O.T. 1971,
NOS. 71-110 AND 71-263.  AND SEE N.Y. TIMES, JULY 15, 1971, P. 6, COL.
1 (GRAND JURY INVESTIGATION OF N.Y. TIMES STAFF WHICH PUBLISHED THE
PENTAGON PAPERS). 

/8/  E.G., N.Y. TIMES, APRIL 12, 1970, P. 1, COL. 2 ("U.S. TO
TIGHTEN SURVEILLANCE OF RADICALS"); N.Y. TIMES, DEC. 14, 1969, P. 1,
COL. 1 ("F.B.I.'S INFORMANTS AND BUGS COLLECT DATA ON BLACK PANTHERS");
THE WASHINGTON POST, MAY 12, 1972, P. D21, COL. 5 ("WHEN THE FBI CALLS,
EVERYBODY TALKS"); THE WASHINGTON POST, MAY 16, 1972, P. B15, COL. 5
("BLACK ACTIVISTS ARE FBI TARGETS"); THE WASHINGTON POST, MAY 17, 1972,
P. B13, COL. 5 ("BEDROOM PEEKING SHARPENS FBI FILES").  AND, CONCERNING
AN FBI INVESTIGATION OF DANIEL SCHORR, A TELEVISION CORRESPONDENT
CRITICAL OF THE GOVERNMENT, SEE N.Y. TIMES, NOV. 11, 1971, P. 95, COL.
4; AND N.Y. TIMES, NOV. 12, 1971, P. 13, COL. 1.  FOR THE WIRETAPPING
AND BUGGING OF DR. MARTIN LUTHER KING BY THE FBI, SEE V. NAVASKY,
KENNEDY JUSTICE 135-155 (1971).  FOR THE WIRETAPPING OF MRS. ELEANOR
ROOSEVELT AND JOHN L. LEWIS BY THE FBI SEE THEOHARIS & MEYER, THE
"NATIONAL SECURITY" JUSTIFICATION FOR ELECTRONIC EAVESDROPPING:  AN
ELUSIVE EXCEPTION, 14 WAYNE L. REV. 749, 760-761 (1968). 

/9/  SEE LAIRD V. TATUM, O.T. 1971, NO. 71-288; SEE ALSO FEDERAL
DATA BANKS, COMPUTERS AND THE BILL OF RIGHTS, HEARINGS BEFORE THE
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE
JUDICIARY, 92D CONG., 1ST SESS. (1971); N.Y. TIMES, FEB. 29, 1972, P.
1, COL. 3.     /10/  "INFORMERS HAVE BEEN USED FOR NATIONAL SECURITY
REASONS THROUGHOUT THE TWENTIETH CENTURY.  THEY WERE DEPLOYED TO COMBAT
WHAT WAS PERCEIVED TO BE AN INTERNAL THREAT FROM RADICALS DURING THE
EARLY 1920'S.  WHEN FEARS BEGAN TO FOCUS ON COMMUNISM, GROUPS THOUGHT
TO HAVE SOME CONNECTION WITH THE COMMUNIST PARTY WERE HEAVILY
INFILTRATED.  INFILTRATION OF THE PARTY ITSELF WAS SO INTENSE THAT ONE
FORMER FBI AGENT ESTIMATED A RATIO OF ONE INFORMANT FOR EVERY 5.7
MEMBERS IN 1962.  MORE RECENTLY, ATTENTION HAS SHIFTED TO MILITANT
ANTIWAR AND CIVIL RIGHTS GROUPS.  IN PART BECAUSE OF SUPPORT FOR SUCH
GROUPS AMONG UNIVERSITY STUDENTS THROUGHOUT THE COUNTRY, INFORMERS SEEM
TO HAVE BECOME UBIQUITOUS ON CAMPUS.  SOME INSIGHT INTO THE SCOPE OF
THE CURRENT USE OF INFORMERS WAS PROVIDED BY THE MEDIA PAPERS, FBI
DOCUMENTS STOLEN IN EARLY 1971 FROM A BUREAU OFFICE IN MEDIA,
PENNSYLVANIA.  THE PAPERS DISCLOSE FBI ATTEMPTS TO INFILTRATE A
CONFERENCE OF WAR RESISTERS AT HAVERFORD COLLEGE IN AUGUST 1969, AND A
CONVENTION OF THE NATIONAL ASSOCIATION OF BLACK STUDENTS IN JUNE 1970. 
THEY ALSO REVEAL FBI ENDEAVORS 'TO RECRUIT INFORMERS, RANGING FROM BILL
COLLECTORS TO APARTMENT JANITORS, IN AN EFFORT TO DEVELOP CONSTANT
SURVEILLANCE IN BLACK COMMUNITIES AND NEW LEFT ORGANIZATIONS'  (N.Y.
TIMES, APRIL 8, 1971, P. 22, COL. 1).  IN PHILADELPHIA'S BLACK
COMMUNITY, FOR INSTANCE, A WHOLE RANGE OF BUILDINGS 'INCLUDING OFFICES
OF THE CONGRESS OF RACIAL EQUALITY, THE SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE (AND) THE BLACK COALITION' (IBID.) WAS SINGLED OUT FOR
SURVEILLANCE BY BUILDING EMPLOYEES AND OTHER SIMILAR INFORMERS WORKING
FOR THE FBI."  NOTE, DEVELOPMENTS IN THE LAW-- THE NATIONAL SECURITY
INTEREST AND CIVIL LIBERTIES, 85 HARV.L.REV.  1130, 1272-1273 (1972). 
FOR ACCOUNTS OF THE IMPERSONATION OF JOURNALISTS BY POLICE, FBI AGENTS
AND SOLDIERS IN ORDER TO GAIN THE CONFIDENCES OF DISSIDENTS, SEE PRESS
FREEDOMS UNDER PRESSURE, REPORT OF THE TWENTIETH CENTURY FUND TASK
FORCE ON THE GOVERNMENT AND THE PRESS 29-34, 86-97 (1972).  FOR THE
REVELATION OF ARMY INFILTRATION OF POLITICAL ORGANIZATIONS AND SPYING
ON SENATORS, GOVERNORS AND CONGRESSMEN, SEE FEDERAL DATA BANKS,
COMPUTERS AND THE BILL OF RIGHTS, HEARINGS BEFORE THE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY, 92D
CONG., 1ST SESS. (1971) (DISCUSSED IN MY DISSENT FROM THE DENIAL OF
CERTIORARI IN WILLIAMSON V. UNITED STATES, 405 U.S. 1026).  AMONG THE
MEDIA PAPERS WAS THE SUGGESTION BY THE FBI THAT INVESTIGATION OF
DISSIDENTS BE STEPPED UP IN ORDER TO "'ENHANCE THE PARANOIA ENDEMIC IN
THESE CIRCLES AND (TO) FURTHER SERVE TO GET THE POINT ACROSS THERE IS
AN FBI AGENT BEHIND EVERY MAILBOX.'"  N.Y. TIMES, MARCH 25, 1971, P.
33, COL. 1. 

/11/  E.G., N.Y. TIMES, FEB. 8, 1972, P. 1, COL. 8 (SENATE PEACE
ADVOCATES SAID, BY PRESIDENTIAL ADVISER, TO BE AIDING AND ABETTING THE
ENEMY). 

/12/  AMICUS CURIAE BRIEF SUBMITTED BY SENATOR SAM ERVIN IN LAIRD V.
TATUM, NO. 71-288, O.T. 1971, P. 8. 

/13/  E.G., NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713;
POWELL V. MCCORMACK, 395 U.S. 486; UNITED STATES V. ROBEL, 389 U.S.
258, 264; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500; BAGGETT V.
BULLITT, 377 U.S. 360; YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S.
579; DUNCAN V. KAHANOMOKU, 327 U.S. 304; WHITE V. STEER, 327 U.S. 304;
DEJONGE V. OREGON, 299 U.S. 353, 365; EX PARTE MILLIGAN, 4 WALL.  2;
MITCHELL V. HARMONY, 13 HOW.  115.  NOTE, THE "NATIONAL SECURITY
WIRETAP":  PRESIDENTIAL PREROGATIVE OR JUDICIAL RESPONSIBILITY, 45
S.CAL.L.REV.  888, 907-912 (1972). 

/14/  I CONTINUE IN MY BELIEF THAT IT WOULD BE EXTREMELY DIFFICULT
TO WRITE A SEARCH WARRANT SPECIFICALLY NAMING THE PARTICULAR
CONVERSATIONS TO BE SEIZED AND THEREFORE ANY SUCH ATTEMPT WOULD AMOUNT
TO A GENERAL WARRANT, THE VERY ABUSE CONDEMNED BY THE FOURTH
AMENDMENT.  AS I SAID, DISSENTING IN OSBORN V. UNITED STATES, 385 U.S.
323, 353:  "SUCH DEVICES LAY DOWN A DRAGNET WHICH INDISCRIMINATELY
SWEEPS IN ALL CONVERSATIONS WITHIN ITS SCOPE, WITHOUT REGARD TO THE
NATURE OF THE CONVERSATIONS, OR THE PARTICIPANTS.  A WARRANT
AUTHORIZING SUCH DEVICES IS NO DIFFERENT FROM THE GENERAL WARRANTS THE
FOURTH AMENDMENT WAS INTENDED TO PROHIBIT." 

        APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING. 

        FEDERAL WIRETAPPING AND BUGGING 1969-1970 (TABLE OMITTED) 

/1/  RATIOS FOR 1969 ARE LESS MEANINGFUL THAN THOSE FOR 1970, SINCE
COURT-ORDERED SURVEILLANCE PROGRAM WAS IN ITS INITIAL STAGE IN 1969. 

SOURCE: 

(1) LETTER FROM ASSISTANT ATTORNEY GENERAL MARDIAN TO SENATOR EDWARD
M. KENNEDY, MARCH 1, 1971.  SOURCE FIGURES WITHHELD AT REQUEST OF
JUSTICE DEPARTMENT. 

(2) REPORTS OF ADMINISTRATIVE OFFICE OF U.S. COURTS FOR 1969 AND
1970. 

MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT. 

THIS CASE ARISES OUT OF A TWO-COUNT INDICTMENT CHARGING CONSPIRACY
TO INJURE AND INJURY TO GOVERNMENT PROPERTY.  COURT I CHARGED ROBERT
PLAMONDON AND TWO CODEFENDANTS WITH CONSPIRING WITH A FOURTH PERSON TO
INJURE GOVERNMENT PROPERTY WITH DYNAMITE.  COUNT II CHARGED PLAMONDON
ALONE WITH DYNAMITING AND INJURING GOVERNMENT PROPERTY IN ANN ARBOR,
MICHIGAN.  THE DEFENDANTS MOVED TO COMPEL THE UNITED STATES TO
DISCLOSE, AMONG OTHER THINGS, ANY LOGS AND RECORDS OF ELECTRONIC
SURVEILLANCE DIRECTED AT THEM, AT UNINDICTED COCONSPIRATORS, OR AT ANY
PREMISES OF THE DEFENDANTS OR COCONSPIRATORS.  THEY ALSO MOVED FOR A
HEARING TO DETERMINE WHETHER ANY ELECTRONIC SURVEILLANCE DISCLOSED HAD
TAINTED THE EVIDENCE ON WHICH THE GRAND JURY INDICTMENT WAS BASED AND
WHICH THE GOVERNMENT INTENDED TO USE AT TRIAL.  THEY ASKED FOR
DISMISSAL OF THE INDICTMENT IF SUCH TAINT WERE DETERMINED TO EXIST. 
OPPOSING THE MOTION, THE UNITED STATES SUBMITTED AN AFFIDVAIT OF THE
ATTORNEY GENERAL OF THE UNITED STATES DISCLOSING THAT "(THE DEFENDANT
PLAMONDON HAS PARTICIPATED IN CONVERSATIONS WHICH WERE OVERHEARD BY
GOVERNMENT AGENTS WHO WERE MONITORING WIRETAPS WHICH WERE BEING
EMPLOYED TO GATHER INTELLIGENCE INFORMATION DEEMED NECESSARY TO PROTECT
THE NATION FROM ATTEMPTS OF DOMESTIC ORGANIZATIONS TO ATTACK AND
SUBVERT THE EXISTING STRUCTURE OF THE GOVERNMENT," THE WIRETAPS HAVING
BEEN EXPRESSLY APPROVED BY THE ATTORNEY GENERAL.  THE RECORDS OF THE
INTERCEPTED CONVERSATIONS AND COPIES OF THE MEMORANDUM REFLECTING THE
ATTORNEY GENERAL'S APPROVAL WERE SUBMITTED UNDER SEAL AND SOLELY FOR
THE COURT'S IN CAMERA INSEPCTION.  /1/ 

AS CHARACTERIZED BY THE DISTRICT COURT, THE POSITION OF THE UNITED
STATES WAS THAT THE ELECTRONIC MONITORING OF PLAMONDON'S CONVERSATIONS
WITHOUT JUDICIAL WARRANT WAS A LAWFUL EXERCISE OF THE POWER OF THE
PRESIDENT TO SAFEGUARD THE NATIONAL SECURITY.  THE DISTRICT COURT
GRANTED THE MOTION OF DEFENDANTS, HOLDING THAT THE PRESIDENT HAD NO
CONSTITUTIONAL POWER TO EMPLOY ELECTRONIC SURVEILLANCE WITHOUT WARRANT
TO GATHER INFORMATION ABOUT DOMESTIC ORGANIZATIONS.  ABSENT PROBABLE
CAUSE AND JUDICIAL AUTHORIZATION, THE CHALLENGED WIRETAP INFRINGED
PLAMONDON'S FOURTH AMENDMENT RIGHTS.  THE COURT ORDERED THE GOVERNMENT
TO DISCLOSE TO DEFENDANTS THE RECORDS OF THE MONITORED CONVERSATIONS
AND DIRECTED THAT A HEARING BE HELD TO DETERMINE THE EXISTENCE OF TAINT
EITHER IN THE INDICTMENT OR IN THE EVIDENCE TO BE INTRODUCED AT TRIAL. 

THE GOVERNMENT'S PETITION FOR MANDAMUS TO REQUIRE THE DISTRICT COURT
TO VACATE ITS ORDER WAS DENIED BY THE COURT OF APPEALS.  444 F.2D 651
(CA6 1971).  THAT COURT HELD THAT THE FOURTH AMENDMENT BARRED
WARRANTLESS ELECTRONIC SURVEILLANCE OF DOMESTIC ORGANIZATIONS EVEN IF
AT THE DIRECTION OF THE PRESIDENT.  IT AGREED WITH THE DISTRICT COURT
THAT BECAUSE THE WIRETAPS INVOLVED WERE THEREFORE CONSTITUTIONALLY
INFIRM, THE UNITED STATES MUST TURN OVER TO DEFENDANTS THE RECORDS OF
OVERHEARD CONVERSATIONS FOR THE PURPOSE OF DETERMINING WHETHER THE
GOVERNMENT'S EVIDENCE WAS TAINTED. 

I WOULD AFFIRM THE COURT OF APPEALS BUT ON THE STATUTORY GROUND
URGED BY DEFENDANT-RESPONDENTS (BRIEF 115) WITHOUT REACHING OR
INTIMATING ANY VIEWS WITH RESPECT TO THE CONSTITUTIONAL ISSUE DECIDED
BY BOTH THE DISTRICT COURT AND THE COURT OF APPEALS. 

TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968,
18 U.S.C. 2510-2520, FORBIDS, UNDER PAIN OF CRIMINAL PENALTIES AND
CIVIL ACTIONS FOR DAMAGES, ANY WIRETAPPING OR EAVESDROPPING NOT
UNDERTAKEN IN ACCORDANCE WITH SPECIFIED PROCEDURES FOR OBTAINING
JUDICIAL WARRANTS AUTHORIZING THE SURVEILLANCE.  SECTION 2511(1)
ESTABLISHES A GENERAL PROHIBITION AGAINST ELECTRONIC EAVESDROPPING
"(EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED" IN THE STATUTE.  LATER
OFFICIAL INTERCEPTIONS OF ORAL COMMUNICATIONS; WHEN THESE PROCEDURES
ARE FOLLOWED THE INTERCEPTION IS NOT SUBJECT TO THE PROHIBITIONS OF
SEC. 2511(1).  SECTION 2511(2), HOWEVER, SPECIFIES OTHER SITUATIONS IN
WHICH THE GENERAL PROHIBITIONS OF SEC. 2511(1) DO NOT APPLY.  IN
ADDITION, SEC. 2511(3) PROVIDES THAT: 

     "NOTHING CONTAINED IN THIS CHAPTER OR IN SECTION 605 OF THE

  COMMUNICATIONS ACT OF 1934 (48 STAT. 1143; 47 U.S.C. 604) SHALL

  LIMIT THE CONSTITUTIONAL POWER OF THE PRESIDENT TO TAKE SUCH

  MEASURES AS HE DEEMS NECESSARY TO PROTECT THE NATION AGAINST

  ACTUAL OR POTENTIAL ATTACK OR OTHER HOSTILE ACTS OF A FOREIGN

  POWER, TO OBTAIN FOREIGN INTELLIGENCE INFORMATION DEEMED

  ESSENTIAL TO THE SECURITY OF THE UNITED STATES, OR TO PROTECT

  NATIONAL SECURITY INFORMATION AGAINST FOREIGN INTELLIGENCE

  ACTIVITIES.  NOR SHALL ANYTHING CONTAINED IN THIS CHAPTER BE

  DEEMED TO LIMIT THE CONSTITUTIONAL POWER OF THE PRESIDENT TO TAKE

SUCH MEASURES AS HE DEEMS NECESSARY TO PROTECT THE UNITED STATES

  AGAINST THE OVERTHROW OF THE GOVERNMENT BY FORCE OR OTHER

  UNLAWFUL MEANS, OR AGAINST ANY OTHER CLEAR AND PRESENT DANGER TO

  THE STRUCTURE OR EXISTENCE OF THE GOVERNMENT.  THE CONTENTS OF

  ANY WIRE OR ORAL COMMUNICATION INTERCEPTED BY AUTHORITY OF THE

  PRESIDENT IN THE EXERCISE OF THE FOREGOING POWERS MAY BE RECEIVED

  IN EVIDENCE IN ANY TRIAL HEARING, OR OTHER PROCEEDING ONLY WHERE

  SUCH INTERCEPTION WAS REASONABLE, AND SHALL NOT BE OTHERWISE USED

OR DISCLOSED EXCEPT AS IS NECESSARY TO IMPLEMENT THAT POWER." 

IT IS THIS SUBSECTION THAT LIES AT THE HEART OF THIS CASE. 

THE INTERCEPTION HERE WAS WITHOUT JUDICIAL WARRANT, IT WAS NOT
COVERED BY THE PROVISIONS OF SEC. 2511(2) AND IT IS TOO CLEAR FOR
ARGUMENT THAT IT IS ILLEGAL UNDER SEC. 2511(1) UNLESS IT IS SAVED BY
SEC. 2511(3).  THE MAJORITY ASSERTS THAT SEC. 2511(3) IS A "DISCLAIMER"
BUT NOT AN "EXCEPTION."  BUT HOWEVER IT IS LABELED, IT IS APPARENT
FROM THE FACE OF THE SECTION AND ITS LEGISLATIVE HISTORY THAT IF THIS
INTERCEPTION IS ONE OF THOSE DESCRIBED IN SEC. 2511(3), IT IS NOT
REACHED BY THE STATUTORY BAN ON UNWARRANTED ELECTRONIC EAVESDROPPING. 
/2/ 

THE DEFENDANTS IN THE DISTRICT COURT MOVED FOR THE PRODUCTION OF THE
LOGS OF ANY ELECTRONIC SURVEILLANCE TO WHICH THEY MIGHT HAVE BEEN
SUBJECTED.  THE GOVERNMENT RESPONDED THAT CONVERSATIONS OF PLAMONDON
HAD BEEN INTERCEPTED BUT TOOK THE POSITION THAT TURNOVER OF
SURVEILLANCE RECORDS WAS NOT NECESSARY BECAUSE THE INTERCEPTION
COMPLIED WITH THE LAW.  CLEARLY, FOR THE GOVERNMENT TO PREVAIL IT WAS
NECESSARY TO DEMONSTRATE, FIRST, THAT THE INTERCEPTION INVOLVED WAS NOT
SUBJECT TO THE STATUTORY REQUIREMENT OF JUDICIAL APPROVAL FOR
WIRETAPPING BECAUSE THE SURVEILLANCE WAS WITHIN THE SCOPE OF SEC.
2511(3); AND, SECONDLY, IF THE ACT DID NOT FORBID THE WARRANTLESS
WIRETAP, THAT THE SURVEILLANCE WAS CONSISTENT WITH THE FOURTH
AMENDMENT. 

THE UNITED STATES HAS MADE NO CLAIM IN THIS CASE THAT THE STATUTE
MAY NOT CONSTITUTIONALLY BE APPLIED TO THE SURVEILLANCE AT ISSUE HERE. 
/3/  NOR HAS IT DENIED THAT TO COMPLY WITH THE ACT THE SURVEILLANCE
MUST EITHER BE SUPPORTED BY A WARRANT OR FALL WITHIN THE BOUNDS OF THE
EXCEPTIONS PROVIDED BY SEC. 2511(3).  NEVERTHELESS, AS I READ THE
OPINIONS OF THE DISTRICT COURT AND THE COURT OF APPEALS, NEITHER COURT
STOPPED TO INQUIRE WHETHER THE CHALLENGED INTERCEPTION WAS ILLEGAL
UNDER THE STATUTE BUT PROCEEDED DIRECTLY TO THE CONSTITUTIONAL ISSUE
WITHOUT ADVERTING TO THE TIME-HONORED RULE THAT COURTS SHOULD ABJURE
CONSTITUTIONAL ISSUES EXCEPT WHERE NECESSARY TO DECISION OF THE CASE
BEFORE THEM.  ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288,
346-348 (1936) (CONCURRING OPINION).  BECAUSE I CONCLUDE THAT ON THE
RECORD BEFORE US THE SURVEILLANCE UNDERTAKEN BY THE GOVERNMENT IN THIS
CASE WAS ILLEGAL UNDER THE STATUTE ITSELF, I FIND IT UNNECESSARY, AND
THEREFORE IMPROPER, TO CONSIDER OR DECIDE THE CONSTITUTIONAL QUESTIONS
WHICH THE COURTS BELOW IMPROVIDENTLY REACHED. 

THE THRESHOLD STATUTORY QUESTION IS SIMPLY PUT:  WAS THE ELECTRONIC
SURVEILLANCE UNDERTAKEN BY THE GOVERNMENT IN THIS CASE A MEASURE DEEMED
NECESSARY BY THE PRESIDENT TO IMPLEMENT EITHER THE FIRST OR SECOND
BRANCH OF THE EXCEPTION CARVED OUT BY SEC. 2511(3) TO THE GENERAL
REQUIREMENT OF A WARRANT? 

THE ANSWER, IT SEEMS TO ME, MUST TURN ON THE AFFIDAVIT OF THE
ATTORNEY GENERAL OFFERED BY THE UNITED STATES IN OPPOSITION TO
DEFENDANTS' MOTION TO DISCLOSE SURVEILLANCE RECORDS.  IT IS APPARENT
THAT THERE IS NOTHING WHATSOEVER IN THIS AFFIDAVIT SUGGESTING THAT THE
SURVEILLANCE WAS UNDERTAKEN WITHIN THE FIRST BRANCH OF THE SEC. 2511(3)
EXCEPTION, THAT IS, TO PROTECT AGAINST FOREIGN ATTACK, TO GATHER
FOREIGN INTELLIGENCE OR TO PROTECT NATIONAL SECURITY INFORMATION.  THE
SOLE ASSERTION WAS THAT THE MONITORING AT ISSUE WAS EMPLOYED TO GATHER
INTELLIGENCE INFORMATION "DEEMED NECESSARY TO PROTECT THE NATION FROM
ATTEMPTS OF DOMESTIC ORGANIZATIONS TO ATTACK AND SUBVERT THE EXISTING
STRUCTURE OF THE GOVERNMENT."  APP. 20. 

NEITHER CAN I CONCLUDE FROM THIS CHARACTERIZATION THAT THE WIRETAP
EMPLOYED HERE FELL WITHIN THE EXCEPTION RECOGNIZED BY THE SECOND
SENTENCE OF SEC. 2511(3); FOR IT UTTERLY FAILS TO ASSUME RESPONSIBILITY
FOR THE JUDGMENT THAT CONGRESS DEMANDED:  THAT THE SURVEILLANCE WAS
NECESSARY TO PREVENT OVERTHROW BY FORCE OR OTHER UNLAWFUL MEANS OR THAT
THERE WAS ANY OTHER CLEAR AND PRESENT DANGER TO THE STRUCTURE OR
EXISTENCE OF THE GOVERNMENT.  THE AFFIDAVIT SPEAKS ONLY OF ATTEMPTS TO
ATTACK OR SUBVERT; IT MAKES NO REFERENCE TO FORCE OR UNLAWFULNESS; IT
ARTICULATES NO CONCLUSION THAT THE ATTEMPTS INVOLVED ANY CLEAR AND
PRESENT DANGER TO THE EXISTENCE OR STRUCTURE OF THE GOVERNMENT.     THE
SHORTCOMINGS OF THE AFFIDAVIT WHEN MEASURED AGAINST SEC. 2511(3) ARE
PATENT.  INDEED, THE UNITED STATES IN ORAL ARGUMENT CONCEDED NO LESS. 
THE SPECIFIC INQUIRY PUT TO GOVERNMENT COUNSEL WAS:  "DO YOU THINK THE
AFFIDAVIT, STANDING ALONE, SATISFIES THE SAFE STREETS ACT?"  THE
ASSISTANT ATTORNEY GENERAL ANSWERED "NO, SIR.  WE DO NOT RELY UPON THE
AFFIDAVIT ITSELF.  . . . " TR. OF ORAL ARG. 15.  /4/ 

GOVERNMENT COUNSEL, HOWEVER, SEEK TO SAVE THEIR CASE BY REFERENCE TO
THE IN CAMERA EXHIBIT SUBMITTED TO THE DISTRICT COURT TO SUPPLEMENT THE
ATTORNEY GENERAL'S AFFIDAVIT.  /5/  IT IS SAID THAT THE EXHIBIT
INCLUDES THE REQUEST FOR WIRETAP APPROVAL SUBMITTED TO THE ATTORNEY
GENERAL, THAT THE REQUEST ASSERTED THE NEED TO AVERT A CLEAR AND
PRESENT DANGER TO THE STRUCTURE AND EXISTENCE OF THE GOVERNMENT, AND
THAT THE ATTORNEY GENERAL ENDORSED HIS APPROVAL ON THE REQUEST.  /6/
BUT I AM UNCONVINCED THAT THE MERE ENDORSEMENT OF THE ATTORNEY GENERAL
ON THE REQUEST FOR APPROVAL SUBMITTED TO HIM MUST BE TAKEN AS THE
ATTORNEY GENERAL'S OWN OPINION THAT THE WIRETAP WAS NECESSARY TO AVERT
A CLEAR AND PRESENT DANGER TO THE EXISTENCE OR STRUCTURE OF THE
GOVERNMENT WHEN, IN AN AFFIDAVIT LATER FILED IN COURT SPECIFICALLY
CHARACTERIZING THE PURPOSES OF THE INTERCEPTION AND AT LEAST IMPLIEDLY
THE GROUNDS FOR HIS PRIOR APPROVAL, THE ATTORNEY GENERAL SAID ONLY THAT
THE TAP WAS UNDERTAKEN TO SECURE INTELLIGENCE THOUGHT NECESSARY TO
PROTECT AGAINST ATTEMPTS TO ATTACK AND SUBVERT THE STRUCTURE OF
GOVERNMENT.  IF THE ATTORNEY GENERAL'S APPROVAL OF THE INTERCEPTION IS
TO BE GIVEN A JUDICIALLY COGNIZABLE MEANING DIFFERENT FROM THE MEANING
HE SEEMS TO HAVE ASCRIBED TO IT IN HIS AFFIDAVIT FILED IN COURT, THERE
OBVIOUSLY MUST BE FURTHER PROCEEDINGS IN THE DISTRICT COURT. 

MOREOVER, I AM RELUCTANT TO PROCEED IN THE FIRST INSTANCE TO EXAMINE
THE IN CAMERA MATERIAL AND EITHER SUSTAIN OR REJECT THE SURVEILLANCE AS
A NECESSARY MEASURE TO AVERT THE DANGERS REFERRED TO IN SEC. 2511(3). 
WHAT CONGRESS EXCEPTED FROM THE WARRANT REQUIREMENT WAS A SURVEILLANCE
WHICH THE PRESIDENT WOULD ASSUME RESPONSIBILITY FOR DEEMING AN
ESSENTIAL MEASURE TO PROTECT AGAINST CLEAR AND PRESENT DANGER.  NO
JUDGE CAN SATISFY THIS CONGRESSIONAL REQUIREMENT. 

WITHOUT THE NECESSARY THRESHOLD DETERMINATION, THE INTERCEPTION IS,
IN MY OPINION, CONTRARY TO THE TERMS OF THE STATUTE AND SUBJECT
THEREFORE TO THE PROHIBITION CONTAINED IN SEC. 2515 AGAINST THE USE OF
THE FRUITS OF THE WARRANTLESS ELECTRONIC SURVEILLANCE AS EVIDENCE AT
ANY TRIAL.  /7/ 

THERE REMAIN TWO ADDITIONAL INTERRELATED REASONS FOR NOT REACHING
THE CONSTITUTIONAL ISSUE.  FIRST, EVEN IF IT WERE DETERMINED THAT THE
ATTORNEY GENERAL PURPORTED TO AUTHORIZE AN ELECTRONIC SURVEILLANCE FOR
PURPOSES EXEMPT FROM THE GENERAL PROVISIONS OF THE ACT, THERE WOULD
REMAIN THE ISSUE WHETHER HIS DISCRETION WAS PROPERLY AUTHORIZED.  THE
UNITED STATES CONCEDES THAT THE ACT OF THE ATTORNEY GENERAL AUTHORIZING
A WARRANTLESS WIRETAP IS SUBJECT TO JUDICIAL REVIEW TO SOME EXTENT,
BRIEF FOR UNITED STATES 21-23, AND IT SEEMS IMPROVIDENT TO PROCEED TO
CONSTITUTIONAL QUESTIONS UNTIL IT IS DETERMINED THAT THE ACT ITSELF
DOES NOT BAR THE INTERCEPTION HERE IN QUESTION. 

SECOND, AND AGAIN ON THE ASSUMPTION THAT THE SURVEILLANCE HERE
INVOLVED FELL WITHIN THE EXCEPTION PROVIDED BY SEC. 2511(3), NO
CONSTITUTIONAL ISSUE NEED BE REACHED IN THIS CASE IF THE FRUITS OF THE
WIRETAP WERE INADMISSIBLE ON STATUTORY GROUNDS IN THE CRIMINAL
PROCEEDINGS PENDING AGAINST RESPONDENT PLAMONDON.  SECTION 2511(3)
ITSELF STATES THAT "(THE CONTENTS OF ANY WIRE OR ORAL COMMUNICATION
INTERCEPTED BY AUTHORITY OF THE PRESIDENT IN THE EXERCISE OF THE
FOREGOING POWERS MAY BE RECEIVED IN EVIDENCE IN ANY TRIAL HEARING, OR
OTHER PROCEEDING ONLY WHERE SUCH INTERCEPTION WAS REASONABLE, AND SHALL
NOT BE OTHERWISE USED OR DISCLOSED EXCEPT AS IS NECESSARY TO IMPLEMENT
THAT POWER."  THERE HAS BEEN NO DETERMINATION BY THE DISTRICT COURT
THAT IT WOULD BE REASONABLE TO USE THE FRUITS OF THE WIRETAP AGAINST
PLAMONDON OR THAT IT WOULD BE NECESSARY TO DO SO TO IMPLEMENT THE
PURPOSES FOR WHICH THE TAP WAS AUTHORIZED. 

MY OWN CONCLUSION, AGAIN, IS THAT, AS LONG AS NONCONSTITUTIONAL,
STATUTORY GROUNDS FOR EXCLUDING THE EVIDENCE OR ITS FRUITS HAVE NOT
BEEN DISPOSED OF, IT IS IMPROVIDENT TO REACH THE CONSTITUTIONAL ISSUE. 

I WOULD THUS AFFIRM THE JUDGMENT OF THE COURT OF APPEALS UNLESS THE
COURT IS PREPARED TO RECONSIDER THE NECESSITY FOR AN ADVERSARY, RATHER
THAN AN IN CAMERA, HEARING WITH RESPECT TO TAINT.  IF IN CAMERA
PROCEEDINGS ARE SUFFICIENT AND NO TAINT IS DISCERNED BY THE JUDGE, THIS
CASE IS OVER, WHATEVER THE LEGALITY OF THE TAP. 

/1/  THE ATTORNEY GENERAL'S AFFIDAVIT CONCLUDED: "I CERTIFY THAT IT
WOULD PREJUDICE THE NATIONAL INTEREST TO DISCLOSE THE PARTICULAR FACTS
CONCERNING THESE SURVEILLANCES OTHER THAN TO THE COURT IN CAMERA. 
ACCORDINGLY, THE SEALED EXHIBIT REFERRED TO HEREIN IS BEING SUBMITTED
SOLELY FOR THE COURT'S IN CAMERA INSPECTION AND A COPY OF THE SEALED
EXHIBIT IS NOT BEING FURNISHED TO THE DEFENDANTS.  I WOULD REQUEST THE
COURT, AT THE CONCLUSION OF ITS HEARING ON THIS MATTER, TO PLACE THE
SEALED EXHIBIT IN A SEALED ENVELOPE AND RETURN IT TO THE DEPARTMENT OF
JUSTICE WHERE IT WILL BE RETAINED UNDER SEAL SO THAT IT MAY BE
SUBMITTED TO ANY APPELLATE COURT THAT MAY REVIEW THIS MATTER."  APP. 20
21. 

/2/  I CANNOT AGREE WITH THE MAJORITY'S ANALYSIS OF THE IMPORT OF
SEC. 2511(3).  SURELY, CONGRESS MEANT AT LEAST THAT IF A COURT
DETERMINED THAT IN THE SPECIFIED CIRCUMSTANCES THE PRESIDENT COULD
CONSTITUTIONALLY INTERCEPT COMMUNICATIONS WITHOUT A WARRANT, THE
GENERAL BAN OF SEC. 2511(1) WOULD NOT APPLY.  BUT THE LIMITATION ON THE
APPLICABILITY OF SEC. 2511(1) WAS NOT OPEN-ENDED; IT WAS CONFINED TO
THOSE SITUATIONS THAT SEC. 2511(3) SPECIFICALLY DESCRIBED.  THUS, EVEN
ASSUMING THE CONSTITUTIONALITY OF A WARRANTLESS SURVEILLANCE AUTHORIZED
BY THE PRESIDENT TO UNCOVER PRIVATE OR OFFICIAL GRAFT FORBIDDEN BY
FEDERAL STATUTE, THE INTERCEPTION WOULD BE ILLEGAL UNDER SEC. 2511(1)
BECAUSE IT IS NOT THE TYPE OF PRESIDENTIAL ACTION SAVED BY THE ACT BY
THE PROVISION OF SEC. 2511(3).  AS STATED IN THE TEXT AND N. 3, INFRA,
THE UNITED STATES DOES NOT CLAIM THAT CONGRESS IS POWERLESS TO REQUIRE
WARRANTS FOR SURVEILLANCES THAT THE PRESIDENT OTHERWISE WOULD NOT BE
BARRED BY THE FOURTH AMENDMENT FROM UNDERTAKING WITHOUT A WARRANT. 

/3/  SEE TR. OF ORAL ARG. 13-14: 

"Q.  . . . I TAKE IT FROM YOUR ANSWER THAT CONGRESS COULD FORBID THE
PRESIDENT FROM DOING WHAT YOU SUGGEST HE HAS THE POWER TO DO IN THIS
CASE? 

"MR. MARDIAN (ASSISTANT ATTORNEY GENERAL):  THAT ISSUE IS NOT BEFORE
THIS COURT-- 

"Q.  WELL, I WOULD-- MY NEXT QUESTION WILL SUGGEST THAT IT IS.
WOULD YOU SAY, THOUGH, THAT CONGRESS COULD FORBID THE PRESIDENT? 

"MR. MARDIAN:  I THINK UNDER THE RULE ANNOUNCED BY THIS COURT IN
COLONY CATERING THAT WITHIN CERTAIN LIMITS THE CONGRESS COULD SEVERELY
RESTRICT THE POWER OF THE PRESIDENT IN THIS AREA. 

"Q.  WELL, LET'S ASSUME CONGRESS SAYS, THEN, THAT THE ATTORNEY
GENERAL, OR THE PRESIDENT MAY AUTHORIZE THE ATTORNEY GENERAL IN
SPECIFIC SITUATIONS TO CARRY OUT ELECTRONIC SURVEILLANCE IF THE
ATTORNEY GENERAL CERTIFIES THAT THERE IS A CLEAR AND PRESENT DANGER TO
THE SECURITY OF THE UNITED STATES? 

"MR. MARDIAN:  I THINK THAT CONGRESS HAS ALREADY PROVIDED THAT, AND-
 

"Q.  WELL, WOULD YOU SAY THAT CONGRESS WOULD HAVE THE POWER TO LIMIT
SURVEILLANCES TO SITUATIONS WHERE THOSE CONDITIONS WERE SATISFIED? 

"MR. MARDIAN:  YES, I WOULD-- I WOULD CONCUR IN THAT, YOUR HONOR." 

A COLLOQUY APPEARING IN THE DEBATES ON THE BILL, APPEARING AT 114
CONG.REC.  14750-14751, INDICATES THAT SOME SENATORS CONSIDERED SEC.
2511(3) AS MERELY STATING AN INTENTION NOT TO INTERFERE WITH THE
CONSTITUTIONAL POWERS THAT THE PRESIDENT MIGHT OTHERWISE HAVE TO ENGAGE
IN WARRANTLESS ELECTRONIC SURVEILLANCE.  BUT THE DEPARTMENT OF JUSTICE,
IT WAS SAID, PARTICIPATED IN THE DRAFTING OF SEC. 2511(3) AND THERE IS
NO INDICATION IN THE LEGISLATIVE HISTORY THAT THERE WAS ANY CLAIM OR
THOUGHT THAT THE SUPPOSED POWERS OF THE PRESIDENT REACHED BEYOND THOSE
DESCRIBED IN THE SECTION.  IN ANY CASE, IT SEEMS CLEAR THAT THE
CONGRESSIONAL POLICY OF NONINTERFERENCE WAS LIMITED TO THE TERMS OF
SEC. 2511(3). 

/4/  SEE ALSO TR. OF ORAL ARG. 17: 

"Q.  . . . IF ALL THE IN CAMERA DOCUMENT CONTAINED WAS WHAT THIS
AFFIDAVIT CONTAINED, IT WOULD NOT COMPLY WITH THE SAFE STREETS ACT? 

"MR. MARDIAN:  I WOULD CONCUR IN THAT, YOUR HONOR." 

/5/  THE GOVERNMENT APPEARS TO HAVE SHIFTED GROUND IN THIS RESPECT. 
IN ITS INITIAL BRIEF TO THIS COURT, THE GOVERNMENT QUOTED THE ATTORNEY
GENERAL'S AFFIDAVIT AND THEN SAID, WITHOUT QUALIFICATION, "THESE WERE
THE GROUNDS UPON WHICH THE ATTORNEY GENERAL AUTHORIZED THE SURVEILLANCE
IN THE PRESENT CASE."  BRIEF FOR UNITED STATES 21.  MOREOVER, COUNSEL
FOR THE GOVERNMENT STATED AT ORAL ARGUMENT "THAT THE IN CAMERA
SUBMISSION WAS NOT INTENDED AS A JUSTIFICATION FOR THE AUTHORIZATION,
BUT SIMPLY (AS) A PROOF OF THE FACT THAT THE AUTHORIZATION HAD BEEN
GRANTED BY THE ATTORNEY GENERAL OF THE UNITED STATES, OVER HIS OWN
SIGNATURE."  TR. OF ORAL ARG. 6-7. 

LATER AT ORAL ARGUMENT, HOWEVER, THE GOVERNMENT SAID:  "(THE
AFFIDAVIT WAS NEVER INTENDED AS THE BASIS FOR JUSTIFYING THE
SURVEILLANCE IN QUESTION.  . . . THE JUSTIFICATION, AND AGAIN I SUGGEST
THAT IT IS ONLY A PARTIAL JUSTIFICATION, IS CONTAINED IN THE IN CAMERA
EXHIBIT WHICH WAS SUBMITTED TO JUDGE KEITH.  . . . WE DO NOT RELY UPON
THE AFFIDAVIT ITSELF BUT THE IN CAMERA EXHIBIT."  TR. OF ORAL ARG. 14
15.  AND IN ITS REPLY BRIEF, THE GOVERNMENT SAYS FLATLY:  "THOSE (IN
CAMERA) DOCUMENTS, AND NOT THE AFFIDAVIT, ARE THE PROPER BASIS FOR
DETERMINING THE GROUND UPON WHICH THE ATTORNEY GENERAL ACTED."  REPLY
BRIEF FOR UNITED STATES 9. 

/6/  PROCEDURES IN PRACTICE AT THE TIME OF THE REQUEST HERE IN ISSUE
APPARENTLY RESULTED IN THE ATTORNEY GENERAL'S MERELY COUNTERSIGNING A
REQUEST WHICH ASSERTED A NEED FOR A WIRETAP.  WE ARE TOLD THAT UNDER
PRESENT PROCEDURES THE ATTORNEY GENERAL MAKES AN EXPRESS WRITTEN
FINDING OF CLEAR AND PRESENT DANGER TO THE STRUCTURE AND EXISTENCE OF
THE GOVERNMENT BEFORE HE AUTHORIZES A TAP.  TR. OF ORAL ARG. 17-18. 

/7/  "WHENEVER ANY WIRE OR ORAL COMMUNICATION HAS BEEN INTERCEPTED,
NO PART OF THE CONTENTS OF SUCH COMMUNICATION AND NO EVIDENCE DERIVED
THEREFROM MAY BE RECEIVED IN EVIDENCE IN ANY TRIAL, HEARING, OR OTHER
PROCEEDING IN OR BEFORE ANY COURT, GRAND JURY, DEPARTMENT, OFFICER,
AGENCY, REGULATORY BODY, LEGISLATIVE COMMITTEE, OR OTHER AUTHORITY OF
THE UNITED STATES, A STATE, OR A POLITICAL SUBDIVISION THEREOF IF THE
DISCLOSURE OF THAT INFORMATION WOULD BE IN VIOLATION OF THIS CHAPTER." 
18 U.S.C. 2515. 

ASSISTANT ATTORNEY GENERAL MARDIAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD AND
ROBERT L. KEUCH. 

WILLIAM T. GOSSETT ARGUED THE CAUSE FOR RESPONDENTS THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ET AL. WITH
HIM ON THE BRIEF WAS ABRAHAM D. SOFAER.  ARTHUR KINOY ARGUED THE CAUSE
FOR RESPONDENTS SINCLAIR ET AL. WITH HIM ON THE BRIEF WERE WILLIAM J.
BENDER AND WILLIAM KUNSTLER. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY STEPHEN I.
SCHLOSSBERG FOR THE INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE,
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), AND BY BENJAMIN
DREYFUS FOR THE BLACK PANTHER PARTY ET AL. 

BRIEFS OF AMICI CURIAE WERE FILED BY HERMAN SCHWARTZ, MELVIN L.
WULF, AND ERWIN B. ELLMANN FOR THE AMERICAN CIVIL LIBERTIES UNION ET
AL.; BY JOHN LIGTENBERG FOR THE AMERICAN FEDERATION OF TEACHERS; AND BY
THE AMERICAN FRIENDS SERVICE COMMITTEE. 
..END :








SHADWICK V. CITY OF TAMPA, 407 U.S. 345 


       SHADWICK V. CITY OF TAMPA

        APPEAL FROM THE SUPREME COURT OF FLORIDA

        NO. 71-5445.  ARGUED APRIL 10, 1972-- DECIDED JUNE 19,
1972 


CITY CHARTER PROVISION AUTHORIZING MUNICIPAL COURT CLERKS TO ISSUE
ARREST WARRANTS FOR BREACH OF MUNICIPAL ORDINANCES HELD TO COMPORT WITH
REQUIREMENTS OF THE FOURTH AMENDMENT THAT WARRANTS BE ISSUED BY A
NEUTRAL AND DETACHED MAGISTRATE WHO MUST BE CAPABLE OF DETERMINING
WHETHER PROBABLE CAUSE EXISTS FOR ISSUANCE OF THE WARRANT.  THE CLERKS,
THOUGH LAYMEN, WORKED WITHIN THE JUDICIAL BRANCH UNDER SUPERVISION OF
MUNICIPAL COURT JUDGES AND WERE QUALIFIED TO MAKE THE DETERMINATION
WHETHER THERE IS PROBABLE CAUSE TO BELIEVE THAT A MUNICIPAL CODE
VIOLATION HAS OCCURRED.  PP. 347-354. 

250 SO.2D 4, AFFIRMED. 

POWELL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE CHARTER OF TAMPA, FLORIDA, AUTHORIZES THE ISSUANCE OF CERTAIN
ARREST WARRANTS BY CLERKS OF THE TAMPA MUNICIPAL COURT.  /1/  THE SOLE
QUESTION IN THIS CASE IS WHETHER THESE CLERKS QUALIFY AS NEUTRAL AND
DETACHED MAGISTRATES FOR PURPOSES OF THE FOURTH AMENDMENT.  WE HOLD
THAT THEY DO. 

APPELLANT WAS ARRESTED FOR IMPARIED DRIVING ON A WARRANT ISSUED BY A
CLERK OF THE MUNICIPAL COURT.  HE MOVED THE COURT TO QUASH THE WARRANT
ON THE GROUND THAT IT WAS ISSUED BY A NONJUDICIAL OFFICER IN VIOLATION
OF THE FOURTH AND FOURTEENTH AMENDMENTS.  WHEN THE MOTION WAS DENIED,
HE INITIATED PROCEEDINGS IN THE FLORIDA COURTS BY MEANS OF THAT STATE'S
WRIT OF COMMON-LAW CERTIORARI.  THE STATE PROCEEDINGS CULMINATED IN THE
HOLDING OF THE FLORIDA SUPREME COURT THAT "(THE CLERK AND DEPUTY CLERKS
OF THE MUNICIPAL COURT OF THE CITY OF TAMPA ARE NEUTRAL AND DETACHED
'MAGISTRATES' . . . FOR THE PURPOSE OF ISSUING ARREST WARRANTS WITHIN
THE REQUIREMENTS OF THE UNITED STATES CONSTITUTION.  . . . "  250 SO.2D
4, 5 (1971).  WE NOTED PROBABLE JURISDICTION, 404 U.S. 1014 (1972). 

        I 

A CLERK OF THE MUNICIPAL COURT IS APPOINTED BY THE CITY CLERK FROM A
CLASSIFIED LIST OF CIVIL SERVANTS AND ASSIGNED TO WORK IN THE MUNICIPAL
COURT.  THE STATUTE DOES NOT SPECIFY THE QUALIFICATIONS NECESSARY FOR
THIS JOB, BUT NO LAW DEGREE OR SPECIAL LEGAL TRAINING IS REQUIRED.  THE
CLERK'S DUTIES ARE TO RECEIVE TRAFFIC FINES, PREPARE THE COURT'S
DOCKETS AND RECORDS, FILL OUT COMMITMENT PAPERS AND PERFORM OTHER
ROUTINE CLERICAL TASKS.  APPARENTLY HE MAY ISSUE SUBPOENAS.  HE MAY
NOT, HOWEVER, SIT AS A JUDGE, AND HE MAY NOT ISSUE A SEARCH WARRANT OR
EVEN A FELONY OR MISDEMEANOR ARREST WARRANT FOR VIOLATIONS OF STATE
LAWS.  THE ONLY WARRANTS HE MAY ISSUE ARE FOR THE ARREST OF THOSE
CHARGED WITH HAVING BREACHED MUNICIPAL ORDINANCES OF THE CITY OF
TAMPA.  /2/ 

APPELLANT, CONTENDING THAT THE FOURTH AMENDMENT REQUIRES THAT
WARRANTS BE ISSUED BY "JUDICIAL OFFICERS," ARGUES THAT EVEN THIS
LIMITED WARRANT AUTHORITY IS CONSTITUTIONALLY INVALID.  HE REASONS THAT
WARRANT APPLICATIONS OF WHATEVER NATURE CANNOT BE ASSURED THE
DISCERNING, INDEPENDENT REVIEW COMPELLED BY THE FOURTH AMENDMENT WHEN
THE REVIEW IS PERFORMED BY LESS THAN A JUDICIAL OFFICER.  /3/  IT IS
LESS THAN CLEAR, HOWEVER, AS TO WHO WOULD QUALIFY AS A "JUDICIAL
OFFICER" UNDER APPELLANT'S THEORY.  THERE IS SOME SUGGESTION IN
APPELLANT'S BRIEF THAT A JUDICIAL OFFICER MUST BE A LAWYER OR THE
MUNICIPAL COURT JUDGE HIMSELF.  /4/  A MORE COMPLETE PORTRAYAL OF
APPELLANT'S POSITION WOULD BE THAT THE TAMPA CLERKS ARE DISQUALIFIED AS
JUDICIAL OFFICERS NOT MERELY BECAUSE THEY ARE NOT LAWYERS OR JUDGES,
BUT BECAUSE THEY LACK THE INSTITUTIONAL INDEPENDENCE ASSOCIATED WITH
THE JUDICIARY IN THAT THEY ARE MEMBERS OF THE CIVIL SERVICE, APPOINTED
BY THE CITY CLERK, "AN EXECUTIVE OFFICIAL," AND ENJOY NO STATUTORILY
SPECIFIED TENURE IN OFFICE.  /5/

        II 

PAST DECISIONS OF THE COURT HAVE MENTIONED REVIEW BY A "JUDICIAL
OFFICER" PRIOR TO ISSUANCE OF A WARRANT, WHITELEY V. WARDEN, 401 U.S.
560, 564 (1971); KATZ V. UNITED STATES, 389 U.S. 347, 356 (1967); WONG
SUN V. UNITED STATES, 371 U.S. 471, 481-482 (1963); JONES V. UNITED
STATES, 362 U.S. 257, 270 (1960); JOHNSON V. UNITED STATES, 333 U.S.
10, 14 (1948).  IN SOME CASES THE TERM "JUDICIAL OFFICER"  APPEARS TO
HAVE BEEN USED INTERCHANGEABLY WITH THAT OF "MAGISTRATE."  KATZ V.
UNITED STATES, SUPRA, AND JOHNSON V. UNITED STATES, SUPRA.  IN OTHERS,
IT WAS INTENDED SIMPLY TO UNDERSCORE THE NOW ACCEPTED FACT THAT SOMEONE
INDEPENDENT OF THE POLICE AND PROSECUTION MUST DETERMINE PROBABLE
CAUSE.  JONES V. UNITED STATES, SUPRA; WONG SUN V. UNITED STATES,
SUPRA.  THE VERY TERM "JUDICIAL OFFICER" IMPLIES, OF COURSE, SOME
CONNECTION WITH THE JUDICIAL BRANCH.  BUT IT HAS NEVER BEEN HELD THAT
ONLY A LAWYER OR JUDGE COULD GRANT A WARRANT, REGARDLESS OF THE COURT
SYSTEM OR THE TYPE OF WARRANT INVOLVED.  IN JONES, SUPRA, AT 270-271,
THE COURT IMPLIED THAT UNITED STATES COMMISSIONERS, MANY OF WHOM WERE
NOT LAWYERS OR JUDGES, WERE NONETHELESS "INDEPENDENT JUDICIAL
OFFICERS."  /6/ 

THE COURT FREQUENTLY HAS EMPLOYED THE TERM "MAGISTRATE" TO DENOTE
THOSE WHO MAY ISSUE WARRANTS.  COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443,
449-453 (1971); WHITELEY V. WARDEN, SUPRA, AT 566; KATZ V. UNITED
STATES, SUPRA, AT 356-357; UNITED STATES V. VENTRESCA, 380 U.S. 102,
108 (1965); GIORDENELLO V. UNITED STATES, 357 U.S. 480, 486 (1958);
JOHNSON V. UNITED STATES, SUPRA, AT 13-14; UNITED STATES V. LEFKOWITZ,
385 U.S. 452, 464 (1932).  HISTORICALLY, A MAGISTRATE HAS BEEN DEFINED
BROADLY AS "A PUBLIC CIVIL OFFICER, POSSESSING SUCH POWER, LEGISLATIVE,
EXECUTIVE OR JUDICIAL, AS THE GOVERNMENT APPOINTING HIM MAY ORDAIN,"
COMPTON V. ALABAMA, 214 U.S. 1, 7 (1909), OR, IN A NARROWER SENSE "AN
INFERIOR JUDICIAL OFFICER, SUCH AS A JUSTICE OF THE PEACE."  IBID.
MORE RECENT DEFINITIONS HAVE NOT MUCH CHANGED.  /7/ 

AN EXAMINATION OF THE COURT'S DECISIONS REVEALS THAT THE TERMS
"MAGISTRATE" AND "JUDICIAL OFFICER" HAVE BEEN USED INTERCHANGEABLY. 
LITTLE ATTEMPT WAS MADE TO DEFINE EITHER TERM, TO DISTINGUISH THE ONE
FROM THE OTHER, OR TO ADVANCE ONE AS THE DEFINITIVE FOURTH AMENDMENT
REQUIREMENT.  WE FIND NO COMMANDMENT IN EITHER TERM, HOWEVER, THAT ALL
WARRANT AUTHORITY MUST RESIDE EXCLUSIVELY IN A LAWYER OR JUDGE.  SUCH A
REQUIREMENT WOULD HAVE BEEN INCONGRUOUS WHEN EVEN WITHIN THE FEDERAL
SYSTEM WARRANTS WERE UNTIL RECENTLY WIDELY ISSUED BY NONLAWYERS.  /8/ 

TO ATTEMPT TO EXTRACT FURTHER SIGNIFICANCE FROM THE ABOVE
TERMINOLOGY WOULD BE BOTH UNNECESSARY AND FUTILE.  THE SUBSTANCE OF THE
CONSTITUTION'S WARRANT REQUIREMENTS DOES NOT TURN ON THE LABELING OF
THE ISSUING PARTY.  THE WARRANT TRADITIONALLY HAS REPRESENTED AN
INDEPENDENT ASSURANCE THAT A SEARCH AND ARREST WILL NOT PROCEED WITHOUT
PROBABLE CAUSE TO BELIEVE THAT A CRIME HAS BEEN COMMITTED AND THAT THE
PERSON OR PLACE NAMED IN THE WARRANT IS INVOLVED IN THE CRIME.  THUS,
AN ISSUING MAGISTRATE MUST MEET TWO TESTS.  HE MUST BE NEUTRAL AND
DETACHED, AND HE MUST BE CAPABLE OF DETERMINING WHETHER PROBABLE CAUSE
EXISTS FOR THE REQUESTED ARREST OR SEARCH.  THIS COURT LONG HAS
INSISTED THAT INFERENCES OF PROBABLE CAUSE BE DRAWN BY "A NEUTRAL AND
DETACHED MAGISTRATE INSTEAD OF BEING JUDGED BY THE OFFICER ENGAGED IN
THE OFTEN COMPETITIVE ENTERPRISES FOR FERRETING OUT CRIME."  JOHNSON V.
UNITED STATES, SUPRA, AT 14; GIORDENELLO V. UNITED STATES, SUPRA, AT
486.  IN COOLIDGE V. NEW HAMPSHIRE, SUPRA, THE COURT LAST TERM VOIDED A
SEARCH WARRANT ISSUED BY THE STATE ATTORNEY GENERAL "WHO WAS ACTIVELY
IN CHARGE OF THE INVESTIGATION AND LATER WAS TO BE CHIEF PROSECUTOR AT
THE TRIAL."  ID., AT 450.  IF, ON THE OTHER HAND, DETACHMENT AND
CAPACITY DO CONJOIN, THE MAGISTRATE HAS SATISFIED THE FOURTH
AMENDMENT'S PURPOSE. 

        III 

THE REQUISITE DETACHMENT IS PRESENT IN THE CASE AT HAND.  WHATEVER
ELSE NEUTRALITY AND DETACHMENT MIGHT ENTAIL, IT IS CLEAR THAT THEY
REQUIRE SEVERANCE AND DISENGAGEMENT FROM ACTIVITIES OF LAW
ENFORCEMENT.  THERE HAS BEEN NO SHOWING WHATEVER HERE OF PARTIALITY, OR
AFFILIATION OF THESE CLERKS WITH PROSECUTORS OR POLICE.  THE RECORD
SHOWS NO CONNECTION WITH ANY LAW ENFORCEMENT ACTIVITY OR AUTHORITY
WHICH WOULD DISTORT THE INDEPENDENT JUDGMENT THE FOURTH AMENDMENT
REQUIRES.  APPELLANT HIMSELF EXPRESSLY REFUSED TO ALLEGE ANYTHING TO
THAT EFFECT.  /9/  THE MUNICIPAL COURT CLERK IS ASSIGNED NOT TO THE
POLICE OR PROSECUTOR BUT TO THE MUNICIPAL COURT JUDGE FOR WHOM HE DOES
MUCH OF HIS WORK.  IN THIS SENSE, HE MAY WELL BE TERMED A "JUDICIAL
OFFICER."  WHILE A STATUTORILY SPECIFIED TERM OF OFFICE AND APPOINTMENT
BY SOMEONE OTHER THAN "AN EXECUTIVE AUTHORITY" MIGHT BE DESIRABLE, THE
ABSENCE OF SUCH FEATURES IS HARDLY DISQUALIFYING.  JUDGES THEMSELVES
TAKE OFFICE UNDER DIFFERING CIRCUMSTANCES.  SOME ARE APPOINTED, BUT
MANY ARE ELECTED BY LEGISLATIVE BODIES OR BY THE PEOPLE.  MANY ENJOY
BUT LIMITED TERMS AND ARE SUBJECT TO RE-APPOINTMENT OR RE-ELECTION. 
MOST DEPEND FOR THEIR SALARY LEVEL UPON THE LEGISLATIVE BRANCH.  WE
WILL NOT ELEVATE REQUIREMENTS FOR THE INDEPENDENCE OF A MUNICIPAL CLERK
TO A LEVEL HIGHER THAN THAT PREVAILING WITH RESPECT TO MANY JUDGES. 
THE CLERK'S NEUTRALITY HAS NOT BEEN IMPEACHED:  HE IS REMOVED FROM
PROSECUTOR OR POLICE AND WORKS WITHIN THE JUDICIAL BRANCH SUBJECT TO
THE SUPERVISION OF THE MUNICIPAL COURT JUDGE. 

APPELLANT LIKEWISE HAS FAILED TO DEMONSTRATE THAT THESE CLERKS LACK
CAPACITY TO DETERMINE PROBABLE CAUSE.  THE CLERK'S AUTHORITY EXTENDS
ONLY TO THE ISSUANCE OF ARREST WARRANTS FOR BREACH OF MUNICIPAL
ORDINANCES.  WE PRESUME FROM THE NATURE OF THE CLERK'S POSITION THAT HE
WOULD BE ABLE TO DEDUCE FROM THE FACTS ON AN AFFIDAVIT BEFORE HIM
WHETHER THERE WAS PROBABLE CAUSE TO BELIEVE A CITIZEN GUILTY OF
IMPAIRED DRIVING, BREACH OF PEACE, DRUNKENNESS, TRESPASS, OR THE
MULTIPLE OTHER COMMON OFFENSES COVERED BY A MUNICIPAL CODE.  THERE HAS
BEEN NO SHOWING THAT THIS IS TOO DIFFICULT A TASK FOR A CLERK TO
ACCOMPLISH.  OUR LEGAL SYSTEM HAS LONG ENTRUSTED NON-LAWYERS TO
EVALUATE MORE COMPLEX AND SIGNIFICANT FACTUAL DATA THAN THAT IN THE
CASE AT HAND.  GRAND JURIES DAILY DETERMINE PROBABLE CAUSE PRIOR TO
RENDERING INDICTMENTS, AND TRIAL JURIES ASSESS WHETHER GUILTY IS PROVED
BEYOND A REASONABLE DOUBT.  THE SIGNIFICANCE AND RESPONSIBILITY OF
THESE LAY JUDGMENTS BETRAY ANY BELIEF THAT THE TAMPA CLERKS COULD NOT
DETERMINE PROBABLE CAUSE FOR ARREST. 

WE DECIDE TODAY ONLY THAT CLERKS OF THE MUNICIPAL COURT MAY
CONSTITUTIONALLY ISSUE THE WARRANTS IN QUESTION.  WE HAVE NOT
CONSIDERED WHETHER THE ACTUAL ISSUANCE WAS BASED UPON AN ADEQUATE
SHOWING OF PROBABLE CAUSE.  AGUILAR V. TEXAS, 378 U.S. 108 (1964). 
APPELLANT DID NOT SUBMIT THIS QUESTION TO THE COURTS BELOW, 237 SO.2D
231 (1970), 250 SO.2D 4 (1971), AND WE WILL NOT DECIDE IT HERE
INITIALLY.  THE SINGLE QUESTION IS WHETHER POWER HAS BEEN LAWFULLY
VESTED, NOT WHETHER IT HAS BEEN CONSTITUTIONALLY EXERCISED. 

NOR NEED WE DETERMINE WHETHER A STATE MAY LODGE WARRANT AUTHORITY IN
SOMEONE ENTIRELY OUTSIDE THE SPHERE OF THE JUDICIAL BRANCH.  MANY
PERSONS MAY NOT QUALIFY AS THE KIND OF "PUBLIC CIVIL OFFICERS" WE HAVE
COME TO ASSOCIATE WITH THE TERM "MAGISTRATE."  HAD THE TAMPA CLERK BEEN
ENTIRELY DIVORCED FROM A JUDICIAL POSITION, THIS CASE WOULD HAVE
PRESENTED DIFFERENT CONSIDERATIONS.  HERE, HOWEVER, THE CLERK IS AN
EMPLOYEE OF THE JUDICIAL BRANCH OF THE CITY OF TAMPA, DISASSOCIATED
FROM THE ROLE OF LAW ENFORCEMENT.  ON THE RECORD IN THIS CASE, THE
INDEPENDENT STATUS OF THE CLERK CANNOT BE QUESTIONED. 

WHAT WE DO REJECT TODAY IS ANY PER SE INVALIDATION OF A STATE OR
LOCAL WARRANT SYSTEM ON THE GROUND THAT THE ISSUING MAGISTRATE IS NOT A
LAWYER OR A JUDGE.  COMMUNITIES MAY HAVE SOUND REASONS FOR DELEGATING
THE RESPONSIBILITY OF ISSUING WARRANTS TO COMPETENT PERSONNEL OTHER
THAN JUDGES OR LAWYERS.  /10/  MANY MUNICIPAL COURTS FACE STIFF AND
UNRELENTING CASELOADS.  /11/  A JUDGE PRESSURED WITH THE DOCKET BEFORE
HIM MAY GIVE WARRANT APPLICATIONS MORE BRISK AND SUMMARY TREATMENT THAN
WOULD A CLERK.  ALL THIS IS NOT TO IMPLY THAT A JUDGE OR LAWYER WOULD
NOT NORMALLY PROVIDE THE MOST DESIRABLE REVIEW OF WARRANT REQUESTS. 
BUT OUR FEDERAL SYSTEM WARNS OF CONVERTING DESIRABLE PRACTICE INTO
CONSTITUTIONAL COMMANDMENT.  IT RECOGNIZES IN PLURAL AND DIVERSE STATE
ACTIVITIES /12/  ONE KEY TO NATIONAL INNOVATION AND VITALITY.  /13/
STATES ARE ENTITLED TO SOME FLEXIBILITY AND LEEWAY IN THEIR DESIGNATION
OF MAGISTRATES, SO LONG AS ALL ARE NEUTRAL AND DETACHED AND CAPABLE OF
THE PROBABLE-CAUSE DETERMINATION REQUIRED OF THEM. 

WE AFFIRM THE JUDGMENT OF THE FLORIDA SUPREME COURT. 

           AFFIRMED. 

/1/  THE RELEVANT FLORIDA STATUTE AND TAMPA CHARTER PROVISIONS ARE
SET FORTH BELOW. 

1.  SECTION 168.04 OF FLA. STAT. (1965) READS AS FOLLOWS: 

"THE CLERK MAY ADMINISTER AN OATH TO AND TAKE AFFIDAVIT OF ANY
PERSON CHARGING ANOTHER WITH AN OFFENSE BY BREACH OF AN ORDINANCE, AND
MAY ISSUE A WARRANT TO THE MARSHAL TO HAVE THE ACCUSED PERSON ARRESTED
AND BROUGHT BEFORE THE MAYOR FOR TRIAL.  THE MARSHAL MAY, IN THE
ABSENCE OF THE MAYOR AND CLERK FROM THE POLICE STATION, ADMINISTER
OATHS TO AFFIDAVITS OF COMPLAINTS AND ISSUE WARRANTS FOR THE ARREST OF
PERSONS COMPLAINED AGAINST." 

2.  SECTION 495 OF THE CHARTER OF THE CITY OF TAMPA ENACTED BY THE
LEGISLATURE OF THE STATE OF FLORIDA IN SECTION 17, CHAPTER 5363, LAWS
OF FLORIDA 1903, READS AS FOLLOWS: 

"THE CHIEF OF POLICE, OR ANY POLICEMAN OF THE CITY OF TAMPA, MAY
ARREST, WITHOUT WARRANT, ANY PERSON VIOLATING ANY OF THE ORDINANCES OF
SAID CITY, COMMITTED IN THE PRESENCE OF SUCH OFFICER, AND WHEN
KNOWLEDGE OF THE VIOLATION OF ANY ORDINANCE OF SAID CITY SHALL COME TO
SAID CHIEF OF POLICE OR POLICEMAN, NOT COMMITTED IN HIS PRESENCE, HE
SHALL AT ONCE MAKE AFFIDAVIT, BEFORE THE JUDGE OR CLERK OF THE
MUNICIPAL COURT, AGAINST THE PERSON CHARGED WITH SUCH VIOLATION,
WHEREUPON SAID JUDGE OR CLERK SHALL ISSUE A WARRANT FOR THE ARREST OF
SUCH PERSON."     3.  SECTION 160 OF THE CHARTER OF THE CITY OF TAMPA
ENACTED BY THE LEGISLATURE OF THE STATE OF FLORIDA IN SECTION 1,
CHAPTER 61-2915, LAWS OF FLORIDA 1961, READS AS FOLLOWS: 

"THE CITY CLERK OF THE CITY OF TAMPA, WITH THE APPROVAL OF THE
MAYOR, MAY APPOINT ONE OR MORE DEPUTIES, SUCH DEPUTY OR DEPUTIES TO BE
SELECTED FROM THE APPROVED CLASSIFIED LIST OF THE CITY CIVIL SERVICE,
AND TO HAVE AND EXERCISE THE SAME POWERS AS THE CITY CLERK HIMSELF,
INCLUDING BUT NOT LIMITED TO THE ISSUANCE OF WARRANTS.  ONE OR MORE OF
SUCH DEPUTIES MAY BE DESIGNATED AS CLERKS OF THE MUNICIPAL COURT." 

/2/  TR. OF ORAL ARG. 6, 7, 20, 21.     /3/  BRIEF FOR APPELLANT 6;
TR. OF ORAL ARG. 10. 

/4/  BRIEF FOR APPELLANT 12-13; REPLY BRIEF FOR APPELLANT 8. 

/5/  REPLY BRIEF FOR APPELLANT 8; TR. OF ORAL ARG. 10-12. 

/6/  THE UNITED STATES COMMISSIONER SYSTEM HAS, OF COURSE, BEEN
REPLACED BY THE FEDERAL MAGISTRATES ACT OF 1968, 82 STAT. 1107. 

/7/  IN COMPTON, A NOTARY PUBLIC WAS DEEMED A "MAGISTRATE," BUT THE
COURT HAS NOWHERE INDICATED THAT THE TERM DENOTES SOLELY A LAWYER OR
JUDGE. 

WEBSTER'S DICTIONARY (2D ED. 1957), DEFINES MAGISTRATE AS "(A)
PERSON CLOTHED WITH POWER AS A PUBLIC CIVIL OFFICER; A PUBLIC CIVIL
OFFICER INVESTED WITH EXECUTIVE OR JUDICIAL POWERS . . . " OR, MORE
NARROWLY, "(A) MAGISTRATE OF A CLASS HAVING SUMMARY, OFTEN CRIMINAL,
JURISDICTION, AS A JUSTICE OF THE PEACE, OR ONE OF CERTAIN OFFICIALS
HAVING A SIMILAR JURISDICTION.  . . . " RANDOM HOUSE DICTIONARY (1966)
DEFINES MAGISTRATE AS (1) "A CIVIL OFFICER CHARGED WITH THE
ADMINISTRATION OF THE LAW" AND (2) "A MINOR JUDICIAL OFFICER, AS A
JUSTICE OF THE PEACE OR A POLICE JUSTICE, HAVING JURISDICTION TO TRY
MINOR CRMINAL CASES AND TO CONDUCT PRELIMINARY EXAMINATIONS OF PERSONS
CHARGED WITH SERIOUS CRIMES." 

/8/  UNITED STATES COMMISSIONERS WERE NOT REQUIRED TO BE LAWYERS
UNTIL PASSAGE OF THE FEDERAL MAGISTRATES ACT OF 1968.  EVEN UNDER THIS
ACT, A LIMITED EXCEPTION TO LAWYER'S STATUS IS AFFORDED PART-TIME
MAGISTRATES.  28 U.S.C. 631(B)(1). 

/9/  TR. OF ORAL ARG. 10. 

/10/  SOME COMMUNITIES, SUCH AS THOSE IN RURAL OR SPARSELY SETTLED
AREAS, MAY HAVE A SHORTAGE OF AVAILABLE LAWYERS AND JUDGES AND MUST
ENTRUST RESPONSIBILITY FOR ISSUING WARRANTS TO OTHER QUALIFIED
PERSONS.  THE FEDERAL MAGISTRATES ACT, FOR EXAMPLE, EXPLICITLY MAKES
PROVISION FOR NONLAWYERS TO BE APPOINTED IN THOSE COMMUNICATIES WHERE
MEMBERS OF THE BAR ARE NOT AVAILABLE.  28 U.S.C. 631(B)(1). 

/11/  SEE GENERALLY MASS PRODUCTION JUSTICE AND THE CONSTITUTIONAL
IDEAL (C. WHITEBREAD ED., 1970). 

/12/  STATES DIFFER SIGNIFICANTLY AS TO WHOM THEY ENTRUST THE
AUTHORITY TO GRANT A WARRANT.  SEE BURKE V. SUPERIOR COURT, 3
ARIZ.APP.  576, 579, 416 P.2D 997, 1000 (1966); PARKS V. SUPERIOR
COURT, 236 P.2D 874, 882 (CT.APP.CAL.  1951); KENNEDY V. WALKER, 135
CONN. 262, 272, 63 A.2D 589, 594 (1948); GRANO V. STATE, . . . DEL. . .
. , . . . , 257 A.2D 768, 773-774 (1969); SHADWICK V. CITY OF TAMPA,
250 SO.2D 4 (FLA. 1971); STATE V. SWAFFORD, 250 IND. 541, 546, 237
N.E.2D 580, 584 (1968); STATE EX REL. FRENCH V. HENDRICKS SUPERIOR
COURT, 252 IND. 213, 247 N.E.2D 519 (1969); BAILEY V. HUDSPETH, 164
KAN. 600, 606, 191 P.2D 894, 898 (1948); STATE V. GUIDRY, 247 LA. 631,
635-636, 173 SO.2D 192, 194 (1965); WAMPLER V. WARDEN OF MARYLAND
PENITENTIARY, 231 MD. 639, 648, 191 A.2D 594, 600 (1963); LACHAPELLE V.
UNITED SHOE MACHINERY CORP., 318 MASS. 166, 168-170, 61 N.E.2D 8, 10
(1945); STATE V. PAULICK, 277 MINN. 140, 151 N.W.2D 591 (1967); PEOPLE
V. RICHTER, 206 MISC. 304, 306-307, 133 N.Y.S.2D 685, 688 (1954); STATE
V. FURMAGE, 250 N.C. 616, 625-626, 109 S.E.2D 563, 570 (1959); MOSELEY
V. WELCH, 218 S.C. 242, 250, 62 S.E.2D 313, 317 (1950); STATE V.
JEFFERSON, 79 WASH.2D 345, 348-349, 485 P.2D 77, 79 (1971); STATE EX
REL. SAHLEY V. THOMPSON, 151 W.VA. 336, 342-343, 151 S.E.2D 870, 873
(1966); STATE EX REL. WHITE V. SIMPSON, 28 WIS.2D 590, 137 N.W.2D 391
(1965); STATE V. VANBROCKLIN, 194 WIS. 441, 217 N.W. 277 (1927). 

/13/  HARLAN, THOUGHTS AT A DEDICATION:  KEEPING THE JUDICIAL
FUNCTION IN BALANCE, 49 A.B.A.J. 943, 944 (1963). 

DANIEL A. REZNECK ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WAS MALORY B. FRIER. 

GERALD H. BEE, JR., ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS WILLIAM REECE SMITH, JR.
..END :







MUREL V. BALTIMORE CITY CRIMINAL COURT, 407 U.S. 355 


       MUREL ET AL. V. BALTIMORE CITY CRIMINAL COURT ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 70-5276.  ARGUED MARCH 28-29, 1972-- DECIDED JUNE 19,

1972 


IN THIS HABEAS CORPUS CHALLENGE TO THE CONSTITUTIONALITY OF
MARYLAND'S DEFECTIVE DELINQUENCY LAW MADE BY PETITIONERS, WHO WERE
CONVICTED OF VARIOUS STATE CRIMES AND COMMITTED TO PATUXENT INSTITUTION
FOR INDETERMINATE PERIODS, HELD THAT THE WRIT OF CERTIORARI MUST BE
DISMISSED AS IMPROVIDENTLY GRANTED, SINCE ONE OF THE PETITIONERS HAS
BEEN UNCONDITIONALLY RELEASED, AND THE OTHERS ARE SUBJECT TO UNEXPIRED
SENTENCES BARRING THEIR RELEASE EVEN IF THEIR CLAIMS PREVAILED (CF.
MCNEIL V. DIRECTOR, PATUXENT INSTITUTION, ANTE, P. 245); MOREOVER,
PETITIONERS' CHALLENGE TO ONE DEFECTIVE DELINQUENCY LAW SHOULD BE
CONSIDERED IN RELATION TO OTHER STATE LAWS REGARDING CIVIL COMMITMENT
FOR COMPULSORY PSYCHIATRIC TREATMENT, BAXSTROM V. HEROLD, 383 U.S. 107,
AND THOSE LAWS ARE NOW BEING SUBSTANTIALLY REVISED TO AFFORD GREATER
SAFEGUARDS TO COMMITTED PERSONS. 

436 F.2D 1153, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 

PER CURIAM. 

PETITIONERS WERE CONVICTED OF VARIOUS STATE CRIMES AND SENTENCED TO
FIXED TERMS OF IMPRISONMENT.  THEY WERE THEN COMMITTED TO THE PATUXENT
INSTITUTION IN LIEU OF SENTENCE, FOR AN INDETERMINATE PERIOD, PURSUANT
TO THE MARYLAND DEFECTIVE DELINQUENCY LAW, MD. ANN. CODE, ART. 31B. 
THEY SOUGHT FEDERAL HABEAS CORPUS, CHALLENGING ON CONSTITUTIONAL
GROUNDS THE CRITERIA AND PROCEDURES THAT LED TO THEIR COMMITMENT, AND
THE CONDITIONS OF THEIR CONFINEMENT.  THEY CONTEND, INTER ALIA, THAT
THE STATUTORY STANDARD FOR COMMITMENT IS IMPERMISSIBLY VAGUE, THAT THEY
ARE ENTITLED TO PUT THE GOVERNMENT TO THE BURDEN OF PROOF BEYOND A
REASONABLE DOUBT, THAT AT THE COMPULSORY PSYCHIATRIC EXAMINATION
PRESCRIBED BY THE STATUTE THEY WERE ENTITLED TO HAVE THE ASSISTANCE OF
COUNSEL AND TO INVOKE THE PRIVILEGE AGAINST SELF-INCRIMINATION, AND
THAT THEY ARE BEING DENIED A CONSTITUTIONAL RIGHT TO TREATMENT.  THE
DISTRICT COURT DENIED RELIEF SUB NOM. SAS V. MARYLAND, 295 F.SUPP.  389
(MD. 1969), AND THE COURT OF APPEALS AFFIRMED SUB NOM. TIPPETT V.
MARYLAND, 436 F.2D 1153 (CA4 1971).  /1/  WE GRANTED CERTIORARI, 404
U.S. 999 (1971), TO CONSIDER WHETHER, AND TO WHAT EXTENT, THE
CONSTITUTIONAL GUARANTEES INVOKED BY PETITIONERS APPLY TO THIS KIND OF
COMMITMENT PROCESS.  AFTER BRIEFING AND ORAL ARGUMENT, IT NOW APPEARS
THAT THIS CASE DOES NOT PRESENT THESE ISSUES IN A MANNER THAT WARRANTS
THE EXERCISE OF THE CERTIORARI JURISDICTION OF THIS COURT. 

1.  OF THE FOUR PETITIONERS, ONE HAS BEEN UNCONDITIONALLY RELEASED
FROM CONFINEMENT, AND THE OTHER THREE ARE SUBJECT TO CRIMINAL SENTENCES
THAT HAVE NOT YET EXPIRED, AND THAT WOULD BAR THEIR RELEASE FROM
CUSTODY EVEN IF THEIR CLAIMS WERE TO PREVAIL.  /2/  THIS FACT, WHILE
NOT NECESSARILY DISPOSITIVE OF ALL THE CLAIMS PRESENTED BY THESE
PETITIONERS, CASTS THOSE CLAIMS IN A DIFFERENT LIGHT, NOT CONTEMPLATED
BY OUR ORIGINAL GRANT OF THE WRIT.  /3/  CF. MCNEIL V. DIRECTOR,
PATUXENT INSTITUTION, ANTE, P. 245. 

2.  UNDER OUR DECISIONS IN BAXSTROM V. HEROLD, 383 U.S. 107 (1966),
HUMPHREY V. CADY, 405 U.S. 504 (1972), AND JACKSON V. INDIANA, 406 U.S.
715 (1972), PETITIONERS' CHALLENGE TO THE MARYLAND DEFECTIVE
DELINQUENCY LAW SHOULD BE CONSIDERED IN RELATION TO THE CRITERIA,
PROCEDURES, AND TREATMENT THAT THE STATE OF MARYLAND MAKES AVAILABLE TO
OTHER PERSONS, NOT "DEFECTIVE DELINQUENTS," COMMITTED FOR COMPULSORY
PSYCHIATRIC TREATMENT.  WE ARE INFORMED THAT THE STATUTES GOVERNING
CIVIL COMMITMENT IN MARYLAND ARE PRESENTLY UNDERGOING SUBSTANTIAL
REVISION, DESIGNED TO PROVIDE GREATER SUBSTANTIVE AND PROCEDURAL
SAFEGUARDS TO COMMITTED PERSONS.  ACCORDINGLY, IT SEEMS A PARTICULARLY
INOPPORTUNE TIME FOR THIS COURT TO CONSIDER A COMPREHENSIVE CHALLENGE
TO THE DEFECTIVE DELINQUENCY LAW. 

IN THESE CIRCUMSTANCES, THE WRIT OF CERTIORARI IS THEREFORE
DISMISSED AS IMPROVIDENTLY GRANTED. 

              IT IS SO ORDERED. 

/1/  PETITIONER MUREL WAS ORIGINALLY COMMITTED AS A DEFECTIVE
DELINQUENT IN 1962, AND CRESWELL IN 1958; THEIR SEPARATE PETITIONS FOR
FEDERAL HABEAS CORPUS WERE DENIED WITHOUT HEARING IN 1963.  ON APPEAL,
THE COURT OF APPEALS CONSOLIDATED THESE AND OTHER SIMILAR CASES, AND
REMANDED ALL OF THEM FOR A HEARING, SUB NOM. SAS V. MARYLAND, 334 F.2D
506 (CA4 1964).  THE HEARING WAS DEFERRED, BY AGREEMENT OF THE PARTIES,
PENDING THE OUTCOME OF RELATED LITIGATION IN THE STATE COURTS, WHICH
CULMINATED IN THE DECISION IN DIRECTOR V. DANIELS, 243 MD. 16, 221 A.2D
397, CERT. DENIED SUB NOM. AVEY V. BOSLOW, 385 U.S. 940 (1966).  THE
FEDERAL HABEAS HEARING WAS THEN HELD IN THE CONSOLIDATED CASES, WHICH
BY THIS TIME ALSO INCLUDED THAT OF PETITIONERS HAYES AND AVEY, WHO HAD
BEEN COMMITTED AFTER THE COURT OF APPEALS' REMAND ORDER.  THE PETITIONS
WERE AGAIN DENIED, 295 F.SUPP.  389 (MD. 1969), AND THE COURT OF
APPEALS AFFIRMED, 436 F.2D 1153 (CA4 1971). 

/2/  AT THE START OF THIS LITIGATION NINE YEARS AGO BOTH MUREL AND
CRESWELL WERE SUBJECT TO CONFINEMENT THAT WAS WHOLLY ATTRIBUTABLE TO
THE DEFECTIVE DELINQUENCY LAW, THEIR SENTENCES HAVING EXPIRED.  THIS IS
NO LONGER THE CASE BECAUSE MUREL WAS RECENTLY RELEASED, AND CRESWELL
WAS CONVICTED AND SENTENCED ON NEW CHARGES.  WE THEREFORE DO NOT REACH
THEIR CLAIMS. 

/3/  WE DO NOT SUGGEST THAT THESE CLAIMS ARE MOOT, OR THAT A CASE OR
CONTROVERSY IS LACKING, OR THAT HABEAS CORPUS IS INAPPROPRIATE TO TEST
THE SPECIAL INCIDENTS, IF ANY, OF THESE DEFECTIVE-DELINQUENCY
CONFINEMENTS.  SEE CARAFAS V. LAVALLEE, 391 U.S. 234 (1968); JONES V.
CUNNINGHAM, 371 U.S. 236 (1963); NORTH CAROLINA V. RICE, 404 U.S. 244,
248 (1971). 

MR. JUSTICE DOUGLAS, DISSENTING. 

PATUXENT INSTITUTION IS A SPECIAL PRISON USED BY THE STATE OF
MARYLAND FOR THE INCARCERATION OF "DEFECTIVE DELINQUENTS."  INDIVIDUALS
WHO HAVE DEMONSTRATED "PERSISTENT AGGRAVATED ANTI-SOCIAL OR CRIMINAL
BEHAVIOR," WHO HAVE "A PROPENSITY TOWARD CRIMINAL ACTIVITY," AND WHO
HAVE "EITHER SUCH INTELLECTUAL DEFICIENCY OR EMOTIONAL UNBALANCE" AS TO
PRESENT "AN ACTUAL DANGER TO SOCIETY" MAY BE CONFINED AT PATUXENT.  MD.
ANN. CODE, ART 31B, SEC. 5 (1971).  THE INITIAL DETERMINATION THAT ONE
IS A DEFECTIVE DELINQUENT IS MADE JUDICIALLY AND, FOR THOSE CONFINED TO
PATUXENT AFTER SUCH A DETERMINATION, THERE IS THE RIGHT TO SEEK
JUDICIAL REDETERMINATION OF THEIR STATUS AT THREE-YEAR INTERVALS.  ID.,
SEC. 6 ET SEQ. ONE OF THE OBJECTIVES OF PATUXENT SUPPOSEDLY IS TO
PROVIDE TREATMENT FOR THE INMATES SO THAT THEY MAY BE RETURNED TO
SOCIETY.  DIRECTOR V. DANIELS, 243 MD. 16, 31-32, 221 A.2D 397, 406
(1966).  SHOULD A DEFECTIVE DELINQUENT NOT RECEIVE TREATMENT, OR SHOULD
THE TREATMENT PROVE INADEQUATE TO RETURN HIM TO SOCIETY, THE INMATE
MIGHT WELL REMAIN IN PATUXENT FOR THE REMAINDER OF HIS LIFE.  SEE
MCNEIL V. DIRECTOR, PATUXENT INSTITUTION, ANTE, P. 245. 

PETITIONERS BROUGHT THIS ACTION IN THE DISTRICT COURT CHALLENGING
VARIOUS ASPECTS OF THEIR CONFINEMENT AT PATUXENT.  THE DISTRICT COURT
DENIED RELIEF, SAS V. MARYLAND, 295 F.SUPP.  389 (MD. 1969); THE COURT
OF APPEALS AFFIRMED, TIPPETT V. MARYLAND, 436 F.2D 1153 (CA4 1971); AND
WE GRANTED THE PETITION FOR A WRIT OF CERTIORARI.  404 U.S. 999. 
BECAUSE I BASE MY DECISION ON NARROW GROUNDS, I DO NOT REACH THE
BROADER ISSUES TENDERED BY PETITIONERS. 

WHEN A STATE MOVES TO DEPRIVE AN INDIVIDUAL OF HIS LIBERTY, TO
INCARCERATE HIM INDEFINITELY, OR TO PLACE HIM BEHIND BARS FOR WHAT MAY
BE THE REST OF HIS LIFE, THE FEDERAL CONSTITUTION REQUIRES THAT IT MEET
A MORE RIGOROUS BURDEN OF PROOF THAN THAT EMPLOYED BY MARYLAND TO
COMMIT DEFECTIVE DELINQUENTS.  THE DEFECTIVE DELINQUENCY LAW DOES NOT
SPECIFY THE BURDEN OF PROOF NECESSARY TO COMMIT AN INDIVIDUAL TO
PATUXENT, BUT THE MARYLAND COURT OF APPEALS HAS DETERMINED THAT THE
STATE NEED ONLY PROVE ITS CASE BY THE "FAIR PREPONDERANCE OF THE
EVIDENCE."  E.G., CREWS V. DIRECTOR, 245 MD. 174, 225 A.2D 436 (1967);
TERMIN V. DIRECTOR, 243 MD. 689, 221 A.2D 658 (1966); DICKERSON V.
DIRECTOR, 235 MD. 668, 202 A.2D 726 (1964); PURKS V. STATE, 226 MD. 43,
171 A.2D 726 (1961); BLIZZARD V. STATE, 218 MD. 384, 147 A.2D 227
(1958); AND SEE SAS V. MARYLAND, 334 F.2D 506 (CA4 1964); WALKER V.
DIRECTOR, 6 MD.APP.  206, 250 A.2D 900 (1969).  PETITIONERS HAVE THUS
BEEN TAKEN FROM THEIR FAMILIES AND DEPRIVED OF THEIR CONSTITUTIONALLY
PROTECTED LIBERTY UNDER THE SAME STANDARD OF PROOF APPLICABLE TO RUN-OF
THE-MILL AUTOMOBILE NEGLIGENCE ACTIONS.  /1/ 

THE COURT OF APPEALS DISAPPROVED THIS STANDARD BUT, BECAUSE IT FELT
IT INSIGNIFICANT, NONETHELESS HELD IT TO BE CONSISTENT WITH THE
REQUIREMENTS OF THE DUE PROCESS CLAUSE: 

"WE MIGHT ALL BE HAPPIER HAD (THE BURDEN OF PERSUASION) BEEN STATED
IN TERMS OF CLEAR AND CONVINCING PROOF RATHER THAN IN TERMS OF A
PREPONDERANCE OF THE EVIDENCE.  HOWEVER MEANINGFUL THE DISTINCTION MAY
BE TO US AS JUDGES, HOWEVER, IT IS GREATLY TO BE DOUBTED THAT A JURY'S
VERDICT WOULD EVER BE INFLUENCED BY THE CHOICE OF ONE STANDARD OR THE
OTHER.  WE ALL KNOW THAT JURIES APPLY THE PREPONDERANCE STANDARD QUITE
FLEXIBLY, DEPENDING UPON THE NATURE OF THE CASE.  IN ANY EVENT, IN THE
PRESENT STATE OF OUR KNOWLEDGE, CHOICE OF THE STANDARD OF PROOF SHOULD
BE LEFT TO THE STATE.  A LEGISLATIVE (SIC) CHOICE OF THE PREPONDERANCE
STANDARD, THE SAME STANDARD GOVERNING CIVIL COMMITMENTS OF MENTALLY ILL
PERSONS WHO HAVE NO HISTORY OF CRIMINALITY, OUGHT NOT TO BE HELD IN
VIOLATION OF DUE PROCESS REQUIREMENTS WHEN WE HAVE NO FIRM FOUNDATION
FOR AN EVALUATION OF THE PRACTICAL EFFECTS OF THE CHOICE."  TIPPETT V.
MARYLAND, SUPRA, AT 1158-1159. 

JUDGE SOBELOFF DISSENTED IN PART AND WOULD HAVE HELD THE STATE TO A
MORE STRINGENT BURDEN: 

"THE REASONABLE DOUBT STANDARD IS INDISPENSABLE IN BOTH CRIMINAL AND
JUVENILE PROCEEDINGS . . . FOR 'IT IMPRESSES ON THE TRIER OF FACT THE
NECESSITY OF REACHING A SUBJECTIVE STATE OF CERTITUDE OF THE FACTS IN
ISSUE.'  . . . 

     "THE OBJECTIONS TO THE PREPONDERANCE STANDARD APPLY WITH EQUAL

  FORCE IN DEFECTIVE DELINQUENCY HEARINGS-- INDEED THEY ARE EVEN

  MORE COMPELLING IN THE LATTER CLASS OF CASES, SINCE INDEFINITE

  INCARCERATION IS AT STAKE.  DUE PROCESS COMMANDS THAT THE JURY

  MUST BE SATISFIED BEYOND A REASONABLE DOUBT AS TO ALL OBJECTIVE

  FACTS IN DISPUTE, INCLUDING THE TRUTH OF ANY ALLEGED INCIDENTS

  RELIED UPON BY THE PSYCHIATRISTS IN REACHING THEIR

  RECOMMENDATION."  ID., AT 1165 (CITATIONS OMITTED). 

IN CONSIDERING THE CONSTITUTIONALLY MANDATED BURDENS OF PROOF
APPLICABLE TO PARTICULAR TYPES OF CASES, OUR DECISIONS HAVE ATTACHED
GREATER SIGNIFICANCE TO THE VARYING STANDARDS THAN DID THE COURT OF
APPEALS BELOW.  IN SPEISER V. RANDALL, 357 U.S. 513, 520-521 (1958), WE
SAID: 

     "TO EXPERIENCED LAWYERS IT IS COMMONPLACE THAT THE OUTCOME OF
A

  LAWSUIT-- AND HENCE THE VINDICATION OF LEGAL RIGHTS-- DEPENDS

  MORE OFTEN ON HOW THE FACTFINDER APPRAISES THE FACTS THAN ON A

  DISPUTED CONSTRUCTION OF A STATUTE OR INTERPRETATION OF A LINE OF

  PRECEDENTS.  THUS THE PROCEDURES BY WHICH THE FACTS OF THE CASE

  ARE DETERMINED ASSUME AN IMPORTANCE FULLY AS GREAT AS THE

  VALIDITY OF THE SUBSTANTIVE RULE OF LAW TO BE APPLIED.  AND THE

  MORE IMPORTANT THE RIGHTS AT STAKE THE MORE IMPORTANT MUST BE THE

  PROCEDURAL SAFEGUARDS SURROUNDING THOSE RIGHTS." 

AND SEE IN RE WINSHIP, 397 U.S. 358, 368 (1970) (HARLAN, J.,
CONCURRING). 

THE REASON FOR OUR CONTINUED CONCERN OVER THE APPLICABLE BURDEN OF
PROOF IS THAT A LAWSUIT-- LIKE ANY OTHER FACTFINDING PROCESS-- IS
NECESSARILY SUSCEPTIBLE OF ERROR IN THE MAKING OF FACTUAL
DETERMINATIONS.  THE NATURE OF THE RIGHTS IMPLICATED IN THE LAWSUIT
THUS DETERMINES THE ALLOCATION AND DEGREE OF THE BURDEN OF PROOF AND
CONSEQUENTLY THE PARTY UPON WHOM THE RISK OF ERRORS IN THE FACTFINDING
PROCESS WILL BE PLACED.  WE APPLIED THIS REASONING IN SPEISER, WHERE
FIRST AMENDMENT RIGHTS WERE IMPLICATED: 

"IN ALL KINDS OF LITIGATION IT IS PLAIN THAT WHERE THE BURDEN OF
PROOF LIES MAY BE DECISIVE OF THE OUTCOME.  THERE IS ALWAYS IN
LITIGATION A MARGIN OF ERROR, REPRESENTING ERROR IN FACTFINDING, WHICH
BOTH PARTIES MUST TAKE INTO ACCOUNT.  WHERE ONE PARTY HAS AT STAKE AN
INTEREST OF TRANSCENDING VALUE-- AS A CRIMINAL DEFENDANT HIS LIBERTY--
THIS MARGIN OF ERROR IS REDUCED AS TO HIM BY THE PROCESS OF PLACING ON
THE OTHER PARTY THE BURDEN OF PRODUCING A SUFFICIENCY OF PROOF IN THE
FIRST INSTANCE, AND OF PERSUADING THE FACTFINDER AT THE CONCLUSION OF
THE TRIAL OF HIS GUILT BEYOND A REASONABLE DOUBT.  DUE PROCESS COMMANDS
THAT NO MAN SHALL LOSE HIS LIBERTY UNLESS THE GOVERNMENT HAS BORNE THE
BURDEN OF PRODUCING THE EVIDENCE AND CONVINCING THE FACTFINDER OF HIS
GUILT."  357 U.S.,AT 525-526 (CITATIONS OMITTED). 

IN ROSENBLOOM V. METROMEDIA, INC., 403 U.S. 29 (1971), MR. JUSTICE
BRENNAN, IN AN OPINION JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN, AGAIN APPLIED THESE PRINCIPLES AND REASONED THAT THE
IMPORTANT FIRST AMENDMENT INTERESTS PRESENT IN DEFAMATION ACTIONS
REQUIRED PLAINTIFFS TO MEET AN EXTRAORDINARY BURDEN OF PROOF.  JUSTICE
BRENNAN SAID, "IN LIBEL CASES . . . AN ERRONEOUS VERDICT FOR THE
PLAINTIFF (IS) MOST SERIOUS.  . . . (THE POSSIBILITY OF SUCH ERROR . .
. WOULD CREATE A STRONG IMPETUS TOWARD SELF-CENSORSHIP WHICH THE FIRST
AMENDMENT CANNOT TOLERATE."  ID., AT 50.  MR. JUSTICE BRENNAN THUS
CONCLUDED THAT A MORE RIGOROUS BURDEN OF PROOF WAS NECESSARY TO
SAFEGUARD THE IMPORTANT FIRST AMENDMENT RIGHTS INVOLVED: 

"WE . . . HOLD THAT A LIBEL ACTION . . . BY A PRIVATE INDIVIDUAL
AGAINST A LICENSED RADIO STATION FOR A DEFAMATORY FALSEHOOD IN A
NEWSCAST RELATING TO HIS INVOLVEMENT IN AN EVENT OF PUBLIC OR GENERAL
CONCERN MAY BE SUSTAINED ONLY UPON CLEAR AND CONVINCING PROOF THAT THE
DEFAMATORY FALSEHOOD WAS PUBLISHED WITH KNOWLEDGE THAT IT WAS FALSE OR
WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR NOT."  ID., AT 52. 

IN RE WINSHIP, SUPRA, DEALT WITH AN INDIVIDUAL'S PERSONAL LIBERTY
WHICH WE HAD CHARACTERIZED AS "AN INTEREST OF TRANSCENDING VALUE" IN
SPEISER, 357 U.S.,AT 525.  THERE, WE DETERMINED THAT "PROOF BEYOND A
REASONABLE DOUBT" WAS CONSTITUTIONALLY REQUIRED "BECAUSE OF THE
POSSIBILITY THAT (AN INDIVIDUAL MIGHT) LOSE HIS LIBERTY" AND BECAUSE OF
THE STIGMA OF A CRIMINAL CONVICTION.  397 U.S.,AT 363.  AND SEE WOODBY
V. IMMIGRATION AND NATURALIZATION SERVICE, 385 U.S. 276, 285 (1966). 
IN THE PRESENT CASE, PETITIONERS WERE DEPRIVED OF THEIR MOST BASIC
RIGHT-- THEIR PERSONAL LIBERTY-- UNDER A BURDEN OF PROOF WHICH WAS
CONSTITUTIONALLY INADEQUATE.  THE RIGHT TO LIBERTY IS ONE OF
TRANSCENDENT VALUE.  WITHOUT IT, OTHER CONSTITUTIONALLY PROTECTED
RIGHTS SUCH AS THE RIGHT OF FREE EXPRESSION AND THE RIGHT OF PRIVACY
BECOME LARGELY MEANINGLESS.  YET MARYLAND HAS DEPRIVED PETITIONERS OF
THIS RIGHT, USING A BURDEN OF PROOF WHICH FAILS TO GIVE SUFFICIENT
WEIGHT TO THE INTERESTS INVOLVED. 

IT IS NO ANSWER TO SAY THAT PETITIONERS' COMMITMENTS WERE IN "CIVIL"
PROCEEDINGS AND THAT THE REQUIREMENT FOR PROOF BEYOND A REASONABLE
DOUBT IS REQUIRED ONLY IN "CRIMINAL" CASES.  IN RE GAULT, 387 U.S. 1
(1967), AND IN RE WINSHIP, SUPRA, SPECIFICALLY REJECTED THIS
DISTINCTION AND LOOKED INSTEAD AT THE INTERESTS INVOLVED AND THE ACTUAL
NATURE OF THE PROCEEDINGS.  SEE ALSO BAXSTROM V. HEROLD, 383 U.S. 107
(1966); SPECHT V. PATTERSON, 386 U.S. 605 (1967).  NOR WOULD IT BE
PERSUASIVE TO ARGUE THAT THE DIFFICULTY IN PROVING ONE'S STATE OF MIND
REQUIRES THAT THE STATE BE AFFORDED THE BENEFIT OF A LESSER BURDEN OF
PROOF.  PROVING A STATE OF MIND IS NO MORE DIFFICULT THAN MANY OTHER
ISSUES WITH WHICH COURTS AND JURIES GRAPPLE EACH DAY.  /2/  AN
INDIVIDUAL WHO IS CONFRONTED WITH THE POSSIBILITY OF COMMITMENT,
MOREOVER, RUNS THE RISK OF LOSING HIS MOST IMPORTANT RIGHT-- HIS
LIBERTY. 

SPEISER AND WINSHIP INDICATE THAT AN INDIVIDUL'S PERSONAL LIBERTY IS
AN INTEREST OF TRANSCENDING VALUE FOR THE DEPRIVATION OF WHICH THE
STATE MUST PROVE ITS CASE BEYOND A REASONABLE DOUBT.  I WOULD FOLLOW
ESTABLISHED PRECEDENT AND HOLD THAT A STATE MAY NOT SUBJECT INDIVIDUALS
TO LENGTHY-- IF NOT INDEFINITE-- INCARCERATION UNDER A LESSER BURDEN OF
PROOF.  ACCORDINGLY, I WOULD REVERSE THE JUDGMENT BELOW. 

/1/  IN PETITIONER MUREL'S REDETERMINATION HEARING ON DECEMBER 21,
1964, FOR EXAMPLE, THE TRIAL COURT INSTRUCTED THE JURY:  "THE BURDEN IS
ON THE STATE TO PROVE BY A PREPONDERANCE OF EVIDENCE, AS I HAVE STATED
TO YOU, THAT THE DEFENDANT DOES COME WITHIN ALL PHASES OF THE
DEFINITION OF A DEFECTIVE DELINQUENT."  TRIAL TRANSCRIPT 70. 

THE JURY INSTRUCTIONS IN PETITIONER CRESWELL'S DECEMBER 20, 1961,
REDETERMINATION TRIAL WERE SIMILAR: 

"THE BURDEN OF PROOF IN THIS PARTICULAR CASE IS GOVERNED BY OUR
NORMAL CIVIL RULES OF EVIDENCE.  THE BURDEN OF PROOF IS ON THE STATE TO
SATISFY YOU THAT THIS DEFENDANT IS A DEFECTIVE DELINQUENT.  IF THE
STATE HAS NOT SATISFIED YOU BY A FAIR PREPONDERANCE OF THE EVIDENCE
THAT HE IS A DEFECTIVE DELINQUENT, OR IF YOUR MINDS ARE IN A STATE OF
EQUAL BALANCE, OR EVEN BALANCE, AFTER CONSIDERING ALL THE EVIDENCE AS
TO WHETHER HE IS OR IS NOT A DEFECTIVE DELINQUENT, THEN IT IS YOUR DUTY
TO FIND HIM TO BE NOT A DEFECTIVE DELINQUENT. 

"HOWEVER, IF YOU ARE SATISFIED BY A FAIR PREPONDERANCE OF THE
EVIDENCE THAT HE IS A DEFECTIVE DELINQUENT, THEN IT IS YOUR DUTY TO SO
FIND HIM TO BE SUCH DEFECTIVE DELINQUENT."  TRIAL TRANSCRIPT 75-76. 

THE RECORD DEVELOPED IN THE DISTRICT COURT ALSO INCLUDED THE JURY
INSTRUCTIONS IN THE OCTOBER 30, 1959, REDETERMINATION HEARING OF
CHARLES TIPPETT, WHO WAS A PETITIONER IN THE DISTRICT COURT: 

"THE COURT INFORMS YOU THAT HAVING ONCE BEEN DETERMINED TO BE A
DEFECTIVE DELINQUENT AND NOW THAT HE COMES BEFORE YOU AND ASKS TO BE
RELEASED AS CURED OF WHATEVER DEFECT THERE WAS, THE BURDEN IS ON HIM TO
CONVINCE YOU BY A FAIR PREPONDERANCE OF THE TESTIMONY THAT THAT IS
SO."  TRIAL TRANSCRIPT 40. 

/2/  BRUCE J. ENNIS, STAFF ATTORNEY OF THE NEW YORK CIVIL LIBERTIES
UNION AND DIRECTOR OF THE CIVIL LIBERTIES AND MENTAL ILLNESS PROJECT,
TESTIFIED AS FOLLOWS BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
OF THE SENATE COMMITTEE ON THE JUDICIARY, 91ST CONG., 1ST & 2D SESS.,
277-278 (1969 AND 1970): 

"AS I MENTIONED EARLIER, THE MENTALLY ILL ARE POSSIBLY LESS
DANGEROUS THAN THE MENTALLY HEALTHY.  A FIVE AND A HALF YEAR STUDY OF
5,000 PATIENTS DISCHARGED FROM NEW YORK STATE MENTAL HOSPITALS SHOWED
THAT 'PATIENTS WITH NO RECORD OF PRIOR ARREST HAVE A STRIKINGLY LOW
RATE OF ARREST AFTER RELEASE.  . . . THEIR OVER-ALL RATE OF ARREST IS
LESS THAN 1/12 THAT OF THE GENERAL POPULATION AND THE RATE FOR EACH
SEPARATE OFFENSE IS ALSO FAR LOWER, ESPECIALLY FOR MORE SERIOUS
CHARGES.'  ANOTHER PSYCHIATRIST STATES THAT THERE IS 'NOT A SHRED OF
EVIDENCE THAT THE MENTALLY ILL ARE ANY MORE DANGEROUS THAN THE MENTALLY
HEALTHY.'  A DIAGNOSIS OF MENTAL ILLNESS TELLS US NOTHING ABOUT WHETHER
THE PERSON SO DIAGNOSED IS OR IS NOT DANGEROUS.  SOME MENTAL PATIENTS
ARE DANGEROUS, SOME ARE NOT.  PERHAPS THE PSYCHIATRIST IS AN EXPERT AT
DECIDING WHETHER A PERSON IS MENTALLY ILL, BUT IS HE AN EXPERT AT
PREDICTING WHICH OF THE PERSONS SO DIAGNOSED ARE DANGEROUS?  SANE
PEOPLE, TOO, ARE DANGEROUS, AND IT MAY LEGITIMATELY BE INQUIRED WHETHER
THERE IS ANYTHING IN THE EDUCATION, TRAINING OR EXPERIENCE OF
PSYCHIATRISTS WHICH RENDERS THEM PARTICULARLY ADEPT AT PREDICTING
DANGEROUS BEHAVIOR.  PREDICTIONS OF DANGEROUS BEHAVIOR, NO MATTER WHO
MAKES THEM, ARE INCREDIBLY INACCURATE, AND THERE IS A GROWING CONSENSUS
THAT PSYCHIATRISTS ARE NOT UNIQUELY QUALIFIED TO PREDICT DANGEROUS
BEHAVIOR AND ARE, IN FACT, LESS ACCURATE IN THEIR PREDICTIONS THAN
OTHER PROFESSIONALS. 

"BECAUSE PREDICTIONS OF DANGEROUS BEHAVIOR ARE SO GROSSLY
UNRELIABLE, WE SHOULD AUTHORIZE CONFINEMENT ONLY IF THE PREDICTED
DANGER IS PROVED 'BEYOND A REASONABLE DOUBT' RATHER THAN BY A MERE
PREPONDERANCE OF THE EVIDENCE."  (FOOTNOTES OMITTED.) 

KARL G. FEISSNER AND ANDREW E. GREENWALD ARGUED THE CAUSE FOR
PETITIONERS.  WITH HIM ON THE BRIEF WERE WILLIAM L. KAPLAN AND THOMAS
P. SMITH. 

HENRY R. LORD, DEPUTY ATTORNEY GENERAL OF MARYLAND, ARGUED THE CAUSE
FOR RESPONDENTS.  WITH HIM ON THE BRIEF WERE FRANCIS B. BURCH, ATTORNEY
GENERAL, AND EDWARD F. BORGERDING AND DONALD R. STUTMAN, ASSISTANT
ATTORNEYS GENERAL. 

EVELLE J. YOUNGER, ATTORNEY GENERAL, HERBERT L. ASHBY, CHIEF
ASSISTANT ATTORNEY GENERAL, WILLIAM E. JAMES, ASSISTANT ATTORNEY
GENERAL, AND RUSSELL IUNGERICH AND WILLIAM R. POUNDERS, DEPUTY
ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF CALIFORNIA AS AMICUS
CURIAE URGING AFFIRMANCE. 

BRIEFS OF AMICI CURIAE WERE FILED BY ALAN F. CHARLES FOR THE
NATIONAL LEGAL PROGRAM ON HEALTH PROBLEMS OF THE POOR, AND BY CURTIS R.
REITZ AND JULIAN TEPPER FOR THE PRISON RESEARCH COUNCIL OF THE
UNIVERSITY OF PENNSYLVANIA LAW SCHOOL. 
..END :














TURNER V. ARKANSAS, 407 U.S. 366 


       TURNER V. ARKANSAS

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           ARKANSAS

        NO. 71-1309.  DECIDED JUNE 19, 1972 


PETITIONER RECEIVED A GENERAL VERDICT OF ACQUITTAL ON AN INFORMATION
CHARGING HIM WITH MURDER IN THE COURSE OF A ROBBERY.  WHEN PETITIONER
WAS SUBSEQUENTLY INDICTED FOR THE ROBBERY, HIS DEFENSE, REJECTED BY THE
STATE COURTS, WAS THAT CONSTITUTIONAL PRINCIPLES OF DOUBLE JEOPARDY
COLLATERALLY ESTOPPED THE STATE FROM RELITIGATING THOSE FACTUAL ISSUES
ALREADY DETERMINED IN HIS FAVOR, DETERMINATIONS THAT MAKE HIS
CONVICTION OF ROBBERY LOGICALLY IMPOSSIBLE.  HELD:  IT MUST BE
CONCLUDED THAT THE JURY (WHICH HAD BEEN GIVEN A CHARGE ON ACCESSORIES)
FOUND THAT PETITIONER WAS NOT PRESENT AT THE ROBBERY-MURDER SCENE, THUS
NEGATING THE POSSIBILITY OF A CONSTITUTIONALLY VALID CONVICTION FOR THE
ROBBERY.  ASHE V. SWENSON, 397 U.S. 436. 

PETITION FOR CERTIORARI GRANTED; 251 ARK. 499, 473 S.W.2D 904,
REVERSED AND REMANDED. 

PER CURIAM. 

ON DECEMBER 24, 1968, PETITIONER, ONE RICHARD TURNER (NO RELATION TO
PETITIONER), THE DECEDENT LARRY WAYNE YATES, AND ONE OTHER PERSON WERE
INVOLVED IN A POKER GAME, WHICH LASTED UNTIL THE EARLY HOURS OF
CHRISTMAS MORNING.  AFTER HE LEFT THE GAME, YATES WAS MURDERED AND
ROBBED, AND AN INFORMATION FILED ON DECEMBER 27 CHARGED THAT: 

"(PETITIONER) ON THE 25TH DAY OF DECEMBER, 1968 . . . DID
UNLAWFULLY, WILFULLY, FELONIOUSLY AND VIOLENTLY TAKE FROM THE PERSON OF
ONE LARRY WAYNE YATES . . . A SUM OF MONEY IN EXCESS OF $300.00 . . .
FORCIBLY AND AGAINST THE WILL OF THE SAID LARRY WAYNE YATES . . . AND
WHILE PERPETRATING SAID CRIME OF ROBBERY AS AFORESAID, FELONIOUSLY,
WILFULLY AND WITH MALICE AFORETHOUGHT, AND WITH PREMEDIATION AND
DELIBERATION DID KILL AND MURDER ONE LARRY WAYNE YATES.  . . . " ON
APRIL 24, 1969, PETITIONER RECEIVED A GENERAL VERDICT OF ACQUITTAL ON
THIS INFORMATION. 

ON OCTOBER 3, 1969, HOWEVER, A COUNTY GRAND JURY INDICTED PETITIONER
FOR THE ROBBERY OF YATES AND ALLEGED THAT PETITIONER 

"ON THE 25TH DAY OF DECEMBER, 1968, IN HEMPSTEAD COUNTY, ARKANSAS,
DID UNLAWFULLY TAKE FROM LARRY YATES BY FORCE AND INTIMIDATION LAWFUL
CURRENCY IN THE AMOUNT OF FOUR HUNDRED DOLLARS ($400.00) BELONGING TO
THE SAID LARRY YATES, AGAINST THE PEACE AND DIGNITY OF THE STATE OF
ARKANSAS."  PETITIONER MOVED TO DISMISS THIS INDICTMENT ON DOUBLE
JEOPARDY AND RES JUDICATA GROUNDS, BUT THE TRIAL COURT DENIED THE
MOTION.  ON APPEAL, IT WAS SITUPATED THAT "THE MURDER CHARGE, OF WHICH
DEFENDANT DENNIS TURNER WAS ACQUITTED, AND THE ROBBERY CHARGE AROSE OUT
OF THE SAME SET OF FACTS, CIRCUMSTANCES, AND THE SAME OCCASION" AND
THAT "THE SAME TESTIMONY ADDUCED BY THE STATE OF ARKANSAS IN THE MURDER
TRIAL WILL NECESSARILY NEED BE REINTRODUCED IN THIS ROBBERY CHARGE."  A
DIVIDED ARKANSAS SUPREME COURT AFFIRMED THE DENIAL OF PETITIONER'S
MOTION, TURNER V. STATE, 248 ARK. 367, 452 S.W.2D 317 (1970), HOLDING
THAT THE ONLY QUESTION DETERMINED AT THE MURDER TRIAL WAS WHETHER
PETITIONER WAS GUILTY OF MURDER.  THE COURT POINTED OUT THAT UNDER
STATE LAW, MURDER AND ROBBERY CHARGES COULD NOT BE JOINED IN ONE
INDICTMENT OR INFORMATION AND THAT NO OFFENSE COULD BE JOINTLY TRIED
WITH MURDER.  PETITIONER'S REHEARING PETITION, WHICH ARGUED THE
RELEVANCE OF THIS COURT'S HOLDING IN ASHE V. SWENSON, 397 U.S. 436
(1970), ANNOUNCED SEVEN DAYS AFTER THE ARKANSAS SUPREME COURT'S
DECISION, WAS DENIED.  PETITIONER THEN ENTERED THE COMPLETE TRANSCRIPT
OF THE MURDER TRIAL INTO THE RECORD AND ONCE AGAIN MOVED TO DISMISS THE
INDICTMENT ON DOUBLE JEOPARDY AND RES JUDICATA GROUNDS, AND THE TRIAL
COURT AGAIN DENIED THE MOTION.  AN AMENDED STIPULATION PROVIDED THAT
THE EVIDENCE THE STATE WOULD PRESENT ON THE ROBBERY CHARGE WOULD BE
IDENTICAL WITH THAT IT INTRODUCED ON THE MURDER CHARGE.  THE ARKANSAS
SUPREME COURT AFFIRMED THE DECISION OF THE TRIAL COURT, 251 ARK. 499,
473 S.W.2D 904 (1971), DECLINING TO CONSIDER THE APPLICABILITY OF THIS
COURT'S DECISION IN ASHE V. SWENSON, SUPRA, BECAUSE IT HELD THAT ITS
EARLIER DECISION DENYING PETITIONER RELIEF NOW CONSTITUTED THE "LAW OF
THE CASE." 

PETITIONER CONTENDS THAT FIFTH AMENDMENT PRINCIPLES OF DOUBLE
JEOPARDY, SEE BENTON V. MARYLAND, 395 U.S. 784 (1969), PREVENT HIS
TRIAL ON THE ROBBERY INDICTMENT, BECAUSE THE STATE IS COLLATERALLY
ESTOPPED FROM RELITIGATING THOSE ISSUES ALREADY DETERMINED IN HIS FAVOR
AT THE MURDER TRIAL, DETERMINATIONS THAT MAKE HIS CONVICTION ON THE
ROBBERY CHARGE A LOGICAL IMPOSSIBILITY.  COLLATERAL ESTOPPEL IS PART OF
THE FIFTH AMENDMENT'S DOUBLE JEOPARDY GUARANTEE, ASHE V. SWENSON,
SUPRA, AND IT IS "A MATTER OF CONSTITUTIONAL FACT (THIS COURT) MUST
DECIDE THROUGH AN EXAMINATION OF THE ENTIRE RECORD."  ID., AT 443. 
THUS, THE REJECTION OF PETITIONER'S CLAIM BY THE ARKANSAS SUPREME COURT
ON PROCEDURAL GROUNDS DOES NOT FORECLOSE OUR INQUIRY ON THIS ISSUE. 

IN ASHE, THE DEFENDANT HAD BEEN TRIED AND ACQUITTED BY A GENERAL
VERDICT OF THE ROBBERY OF ONE MEMBER OF A POKER GAME.  HE WAS THEN
TRIED AND CONVICTED OF THE ROBBERY OF ANOTHER OF THE POKER PLAYERS. 
THIS COURT REVERSED HIS CONVICTION, CONCLUDING THAT "(THE SINGLE
RATIONALLY CONCEIVABLE ISSUE IN DISPUTE BEFORE THE JURY (IN THE FIRST
TRIAL) WAS WHETHER THE PETITIONER HAD BEEN ONE OF THE ROBBERS," 397
U.S.,AT 445, AND THAT, THIS ISSUE ONCE HAVING BEEN DETERMINED BY A JURY
IN THE PETITIONER'S FAVOR, THE STATE WAS FORESTALLED FROM RELITIGATING
IT. 

IN THE PRESENT CASE, PETITIONER WAS NOT CHARGED WITH ROBBERY AT THE
FIRST TRIAL, BUT THE STATE HAS STIPULATED THAT THE ROBBERY AND MURDER
AROSE OUT OF "THE SAME SET OF FACTS, CIRCUMSTANCES, AND THE SAME
OCCASION."  THE CRUCIAL QUESTION, THEREFORE, IS WHAT ISSUES A GENERAL
VERDICT OF ACQUITTAL AT THE MURDER TRIAL RESOLVED.  THE JURY WAS
INSTRUCTED THAT IT MUST FIND PETITIONER GUILTY OF FIRST-DEGREE MURDER
IF IT FOUND THAT HE HAD KILLED THE DECEDENT YATES EITHER WITH
PREMEDITATION OR UNINTENTIONALLY DURING THE COURSE OF A ROBBERY.  THE
JURY'S VERDICT THUS NECESSARILY MEANS THAT IT FOUND PETITIONER NOT
GUILTY OF THE KILLING.  THE STATE'S THEORY, HOWEVER, IS THAT THE JURY
MIGHT HAVE BELIEVED THAT PETITIONER AND RICHARD TURNER ROBBED YATES,
BUT THAT RICHARD ACTUALLY COMMITTED THE MURDER.  THIS THEORY IS BELIED
BY THE ACTUAL INSTRUCTIONS GIVEN THE JURY.  /1/  THE TRIAL JUDGE
CHARGED THAT: 

     "AN ACCESSORY IS ONE WHO STANDS BY, AIDS, ABETS, OR ASSISTS .
.

  . THE PERPETRATION OF THE CRIME. 

        .          .     .          . 

     "ALL PERSONS BEING PRESENT, AIDING AND ABETTING, OR READY AND

  CONSENTING TO AID AND ABET, IN ANY FELONY, SHALL BE DEEMED

  PRINCIPAL OFFENDERS, AND INDICTED OR INFORMED AGAINST, AND

  PUNISHED AS SUCH."  (COURT'S INSTRUCTION NO. 13). 

HAD THE JURY FOUND PETITIONER PRESENT AT THE CRIME SCENE, IT WOULD HAVE
BEEN OBLIGATED TO RETURN A VERDICT OF GUILTY OF MURDER EVEN IF IT
BELIEVED THAT HE HAD NOT ACTUALLY PULLED THE TRIGGER.  THE ONLY LOGICAL
CONCLUSION IS THAT THE JURY FOUND HIM NOT PRESENT AT THE SCENE OF THE
MURDER AND ROBBERY, A FINDING THAT NEGATES THE POSSIBILITY OF A
CONSTITUTIONALLY VALID CONVICTION FOR THE ROBBERY OF YATES.  YATES. 
THIS CASE IS THUS SQUARELY CONTROLLED BY ASHE V. SWENSON, SUPRA, AND
MUST BE REVERSED.  SEE HARRIS V. WASHINGTON, 404 U.S. 55 (1971). 

THE WRIT OF CERTIORARI IS GRANTED, THE DECISION OF THE ARKANSAS
SUPREME COURT IS REVERSED, AND THE CASE IS REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

          IT IS SO ORDERED. 

/1/  THESE INSTRUCTIONS REFLECT ARK. STAT. ANN. SEC. 41-2227 WHICH
MAKES ACCESSORIES BEFORE THE FACT TO FIRST-DEGREE MURDER SUBJECT TO THE
SAME PUNISHMENT AS PRINCIPALS.  ARK. STAT. ANN. SEC. 41-118 ABOLISHED
THE DISTINCTION BETWEEN PRINCIPALS AND ACCESSORIES BEFORE THE FACT AND
ALSO PROVIDES THAT "ALL ACCESSORIES BEFORE THE FACT SHALL BE DEEMED
PRINCIPALS AND PUNISHED AS SUCH."  ARK. STAT. ANN. SEC. 41-119 DEFINES
AN ACCESSORY AS "HE WHO STANDS BY, AIDS, ABETS, OR ASSISTS . . . THE
PERPETRATION OF THE CRIME." 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING. 

GIVEN THE DECISION IN ASHE V. SWENSON, 397 U.S. 436 (1970) (SEE,
HOWEVER, MY DISSENT IN HARRIS V. WASHINGTON, 404 U.S. 55, 57 (1971)), I
JOIN THE JUDGMENT OF THE COURT. 

THE CHIEF JUSTICE, RATHER THAN TAKING SUMMARY ACTION IN THIS CASE,
WOULD HEAR ORAL ARGUMENT AND GIVE THE MATTER PLENARY CONSIDERATION. 
..END :




















THE BREMEN V. ZAPATA OFF-SHORE CO., 407 U.S. 1 


       THE BREMEN ET AL, V. ZAPATA OFF-SHORE CO.

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 71-322.  ARGUED MARCH 21, 1972-- DECIDED JUNE 12, 1972 


PETITIONER UNTERWESER MADE AN AGREEMENT TO TOW RESPONDENT'S DRILLING
RIG FROM LOUISIANA TO ITALY.  THE CONTRACT CONTAINED A FORUM-SELECTION
CLAUSE PROVIDING FOR THE LITIGATION OF ANY DISPUTE IN THE HIGH COURT OF
JUSTICE IN LONDON.  WHEN THE RIG UNDER TOW WAS DAMAGED IN A STORM,
RESPONDENT INSTRUCTED UNTERWESER TO TOW THE RIG TO TAMPA, THE NEAREST
PORT OF REFUGE.  THERE, RESPONDENT BROUGHT SUIT IN ADMIRALTY AGAINST
PETITIONERS.  UNTERWESER INVOKED THE FORUM CLAUSE IN MOVING FOR
DISMISSAL FOR WANT OF JURISDICTION AND BROUGHT SUIT IN THE ENGLISH
COURT, WHICH RULED THAT IT HAD JURISDICTION UNDER THE CONTRACTUAL FORUM
PROVISION.  THE DISTRICT COURT, RELYING ON CARBON BLACK EXPORT, INC. V.
THE MONROSA, 254 F.2D 297, HELD THE FORUM-SELECTION CLAUSE
UNENFORCEABLE, AND REFUSED TO DECLINE JURISDICTION ON THE BASIS OF
FORUM NON CONVENIENS.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE FORUM
SELECTION CLAUSE, WHICH WAS A VITAL PART OF THE TOWING CONTRACT, IS
BINDING ON THE PARTIES UNLESS RESPONDENT CAN MEET THE HEAVY BURDEN OF
SHOWING THAT ITS ENFORCEMENT WOULD BE UNREASONABLE, UNFAIR, OR UNJUST. 

428 F.2D 888 AND 446 F.2D 907, VACATED AND REMANDED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, AND REHNQUIST, JJ.,
JOINED.  WHITE, J., FILED A CONCURRING STATEMENT, POST, P. 20. 
DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 20. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO REVIEW A JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT DECLINING TO ENFORCE A FORUM
SELECTION CLAUSE GOVERNING DISPUTES ARISING UNDER AN INTERNATIONAL
TOWAGE CONTRACT BETWEEN PETITIONERS AND RESPONDENT.  THE CIRCUITS HAVE
DIFFERED IN THEIR APPROACH TO SUCH CLAUSES.  /1/  FOR THE REASONS
STATED HEREAFTER, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS. 

IN NOVEMBER 1967, RESPONDENT ZAPATA, A HOUSTON-BASED AMERICAN
CORPORATION, CONTRACTED WITH PETITIONER UNTERWESER, A GERMAN
CORPORATION, TO TOW ZAPATA'S OCEAN-GOING, SELF-ELEVATING DRILLING RIG
CHAPARRAL FROM LOUISIANA TO A POINT OFF RAVENNA, ITALY, IN THE ADRIATIC
SEA, WHERE ZAPATA HAD AGREED TO DRILL CERTAIN WELLS. 

ZAPATA HAD SOLICITED BIDS FOR THE TOWAGE, AND SEVERAL COMPANIES
INCLUDING UNTERWESER HAD RESPONDED.  UNTERWESER WAS THE LOW BIDDER AND
ZAPATA REQUESTED IT TO SUBMIT A CONTRACT, WHICH IT DID.  THE CONTRACT
SUBMITTED BY UNTERWESER CONTAINED THE FOLLOWING PROVISION, WHICH IS AT
ISSUE IN THIS CASE: 

"ANY DISPUTE ARISING MUST BE TREATED BEFORE THE LONDON COURT OF
JUSTICE."  IN ADDITION THE CONTRACT CONTAINED TWO CLAUSES PURPORTING TO
EXCULPATE UNTERWESER FROM LIABILITY FOR DAMAGES TO THE TOWED BARGE. 
/2/ 

AFTER REVIEWING THE CONTRACT AND MAKING SEVERAL CHANGES, BUT WITHOUT
ANY ALTERATION IN THE FORUM-SELECTION OR EXCULPATORY CLAUSES, A ZAPATA
VICE PRESIDENT EXECUTED THE CONTRACT AND FORWARDED IT TO UNTERWESER IN
GERMANY, WHERE UNTERWESER ACCEPTED THE CHANGES, AND THE CONTRACT BECAME
EFFECTIVE. 

ON JANUARY 5, 1968, UNTERWESER'S DEEP SEA TUG BREMEN DEPARTED
VENICE, LOUISIANA, WITH THE CHAPARRAL IN TOW BOUND FOR ITALY.  ON
JANUARY 9, WHILE THE FLOTILLA WAS IN INTERNATIONAL WATERS IN THE MIDDLE
OF THE GULF OF MEXICO, A SEVERE STORM AROSE.  THE SHARP ROLL OF THE
CHAPARRAL IN GULF WATERS CAUSED ITS ELEVATOR LEGS, WHICH HAD BEEN
RAISED FOR THE VOYAGE, TO BREAK OFF AND FALL INTO THE SEA, SERIOUSLY
DAMAGING THE CHAPARRAL.  IN THIS EMERGENCY SITUATION ZAPATA INSTRUCTED
THE BREMEN TO TOW ITS DAMAGED RIG TO TAMPA, FLORIDA, THE NEAREST PORT
OF REFUGE. 

ON JANUARY 12, ZAPATA, IGNORING ITS CONTRACT PROMISE TO LITIGATE
"ANY DISPUTE ARISING" IN THE ENGLISH COURTS, COMMENCED A SUIT IN
ADMIRALTY IN THE UNITED STATES DISTRICT COURT AT TAMPA, SEEKING
$3,500,000 DAMAGES AGAINST UNTERWESER IN PERSONAM AND THE BREMEN IN
REM, ALLEGING NEGLIGENT TOWAGE AND BREACH OF CONTRACT.  /3/  UNTERWESER
RESPONDED BY INVOKING THE FORUM CLAUSE OF THE TOWAGE CONTRACT, AND
MOVED TO DISMISS FOR LACK OF JURISDICTION OR ON FORUM NON CONVENIENS
GROUNDS, OR IN THE ALTERNATIVE TO STAY THE ACTION PENDING SUBMISSION OF
THE DISPUTE TO THE "LONDON COURT OF JUSTICE."  SHORTLY THEREAFTER, IN
FEBRUARY, BEFORE THE DISTRICT COURT HAD RULED ON ITS MOTION TO STAY OR
DISMISS THE UNITED STATES ACTION, . UNTERWESER COMMENCED AN ACTION
AGAINST ZAPATA SEEKING DAMAGES FOR BREACH OF THE TOWAGE CONTRACT IN THE
HIGH COURT OF JUSTICE IN LONDON, AS THE CONTRACT PROVIDED.  ZAPATA
APPEARED IN THAT COURT TO CONTEST JURISDICTION, BUT ITS CHALLENGE WAS
REJECTED, THE ENGLISH COURTS HOLDING THAT THE CONTRACTUAL FORUM
PROVISION CONFERRED JURISDICTION.  /4/ 

IN THE MEANTIME, UNTERWESER WAS FACED WITH A DILEMMA IN THE PENDING
ACTION IN THE UNITED STATES COURT AT TAMPA.  THE SIX-MONTH PERIOD FOR
FILING ACTION TO LIMIT ITS LIABILITY TO ZAPATA AND OTHER POTENTIAL
CLAIMANTS WAS ABOUT TO EXPIRE, /5/  BUT THE UNITED STATES DISTRICT
COURT IN TAMPA HAD NOT YET RULED ON UNTERWESER'S MOTION TO DISMISS OR
STAY ZAPATA'S ACTION.  ON JULY 2, 1968, CONFRONTED WITH DIFFICULT
ALTERNATIVES, UNTERWESER FILED AN ACTION TO LIMIT ITS LIABILITY IN THE
DISTRICT COURT IN TAMPA.  THAT COURT ENTERED THE CUSTOMARY INJUNCTION
AGAINST PROCEEDINGS OUTSIDE THE LIMITATION COURT, AND ZAPATA REFILED
ITS INITIAL CLAIM IN THE LIMITATION ACTION.  /6/ 

IT WAS ONLY AT THIS JUNCTURE, ON JULY 29, AFTER THE SIX-MONTH PERIOD
FOR FILING THE LIMITATION ACTION HAD RUN, THAT THE DISTRICT COURT
DENIED UNTERWESER'S JANUARY MOTION TO DISMISS OR STAY ZAPATA'S INITIAL
ACTION.  IN DENYING THE MOTION, THAT COURT RELIED ON THE PRIOR DECISION
OF THE COURT OF APPEALS IN CARBON BLACK EXPORT, INC. V. THE MONROSA,
254 F.2D 297 (CA 5 1958), CERT. DISMISSED, 359 U.S. 180 (1959).  IN
THAT CASE THE COURT OF APPEALS HAD HELD A FORUM-SELECTION CLAUSE
UNENFORCEABLE, REITERATING THE TRADITIONAL VIEW OF MANY AMERICAN COURTS
THAT "AGREEMENTS IN ADVANCE OF CONTROVERSY WHOSE OBJECT IS TO OUST THE
JURISDICTION OF THE COURTS ARE CONTRARY TO PUBLIC POLICY AND WILL NOT
BE ENFORCED."  254 F.2D, AT 300-301.  /7/  APPARENTLY CONCLUDING THAT
IT WAS BOUND BY THE CARBON BLACK CASE, THE DISTRICT COURT GAVE THE
FORUM-SELECTION CLAUSE LITTLE, IF ANY, WEIGHT.  INSTEAD, THE COURT
TREATED THE MOTION TO DISMISS UNDER NORMAL FORUM NON CONVENIENS
DOCTRINE APPLICABLE IN THE ABSENCE OF SUCH A CLAUSE, CITING GULF OIL
CORP. V. GILBERT, 330 U.S. 501 (1947).  UNDER THAT DOCTRINE "UNLESS THE
BALANCE IS STRONGLY IN FAVOR OF THE DEFENDANT, THE PLAINTIFF'S CHOICE
OF FORUM SHOULD RARELY BE DISTURBED."  ID., AT 508.  THE DISTRICT COURT
CONCLUDED:  "THE BALANCE OF CONVENIENCES HERE IS NOT STRONGLY IN FAVOR
OF (UNTERWESER) AND (ZAPATA'S) CHOICE OF FORUM SHOULD NOT BE
DISTURBED." 

THEREAFTER, ON JANUARY 21, 1969, THE DISTRICT COURT DENIED ANOTHER
MOTION BY UNTERWESER TO STAY THE LIMITATION ACTION PENDING
DETERMINATION OF THE CONTROVERSY IN THE HIGH COURT OF JUSTICE IN LONDON
AND GRANTED ZAPATA'S MOTION TO RESTRAIN UNTERWESER FROM LITIGATING
FURTHER IN THE LONDON COURT.  THE DISTRICT JUDGE RULED THAT, HAVING
TAKEN JURISDICTION IN THE LIMITATION PROCEEDING, HE HAD JURISDICTION TO
DETERMINE ALL MATTERS RELATING TO THE CONTROVERSY.  HE RULED THAT
UNTERWESER SHOULD BE REQUIRED TO "DO EQUITY" BY REFRAINING FROM ALSO
LITIGATING THE CONTROVERSY IN THE LONDON COURT, NOT ONLY FOR THE
REASONS HE HAD PREVIOUSLY STATED FOR DENYING UNTERWESER'S FIRST MOTION
TO STAY ZAPATA'S ACTION, BUT ALSO BECAUSE UNTERWESER HAD INVOKED THE
UNITED STATES COURT'S JURISDICTION TO OBTAIN THE BENEFIT OF THE
LIMITATION ACT. 

ON APPEAL, A DIVIDED PANEL OF THE COURT OF APPEALS AFFIRMED, AND ON
REHEARING EN BANC THE PANEL OPINION WAS ADOPTED, WITH SIX OF THE 14 EN
BANC JUDGES DISSENTING.  AS HAD THE DISTRICT COURT, THE MAJORITY RESTED
ON THE CARBON BLACK DECISION, CONCLUDING THAT "'AT THE VERY LEAST'"
THAT CASE STOOD FOR THE PROPOSITION THAT A FORUM-SELECTION CLAUSE
"'WILL NOT BE ENFORCED UNLESS THE SELECTED STATE WOULD PROVIDE A MORE
CONVENIENT FORUM THAN THE STATE IN WHICH SUIT IS BROUGHT.'"  FROM THAT
PREMISE THE COURT OF APPEALS PROCEEDED TO CONCLUDE THAT, APART FROM THE
FORUM-SELECTION CLAUSE, THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
IN REFUSING TO DECLINE JURISDICTION ON THE BASIS OF FORUM NON
CONVENIENS.  IT NOTED THAT (1) THE FLOTILLA NEVER "ESCAPED THE FIFTH
CIRCUIT'S MARE NOSTRUM, AND THE CASUALTY OCCURRED IN CLOSE PROXIMITY TO
THE DISTRICT COURT"; (2) A CONSIDERABLE NUMBER OF POTENTIAL WITNESSES,
INCLUDING ZAPATA CREWMEN, RESIDED IN THE GULF COAST AREA; (3)
PREPARATION FOR THE VOYAGE AND INSPECTION AND REPAIR WORK HAD BEEN
PERFORMED IN THE GULF AREA; (4) THE TESTIMONY OF THE BREMEN CREW WAS
AVAILABLE BY WAY OF DEPOSITION; (5) ENGLAND HAD NO INTEREST IN OR
CONTACT WITH THE CONTROVERSY OTHER THAN THE FORUM-SELECTION CLAUSE. 
THE COURT OF APPEALS MAJORITY FURTHER NOTED THAT ZAPATA WAS A UNITED
STATES CITIZEN "(THE DISCRETION OF THE DISTRICT COURT OT REMAND THE
CASE TO A FOREIGN FORUM WAS CONSEQUENTLY LIMITED" . . . ESPECIALLY
SINCE IT APPEARED LIKELY THAT THE ENGLISH COURTS WOULD ENFORCE THE
EXCULPATORY CLAUSES.  /8/  IN THE COURT OF APPEALS' VIEW, ENFORCEMENT
OF SUCH CLAUSES WOULD BE CONTRARY TO PUBLIC POLICY IN AMERICAN COURTS
UNDER BISSO V. INLAND WATERWAYS CORP., 349 U.S. 85 (1955), AND DIXILYN
DRILLING CORP. V. CRESCENT TOWING & SALVAGE CO., 372 U.S. 697 (1963). 
THEREFORE, "(THE DISTRICT COURT WAS ENTITLED TO CONSIDER THAT REMANDING
ZAPATA TO A FOREIGN FORUM, WITH NO PRACTICAL CONTACT WITH THE
CONTROVERSY, COULD RAISE A BAR TO RECOVERY BY A UNITED STATES CITIZEN
WHICH ITS OWN CONVENIENT COURTS WOULD NOT COUNTENANCE."  /9/ 

WE HOLD, WITH THE SIX DISSENTING MEMBERS OF THE COURT OF APPEALS,
THAT FAR TOO LITTLE WEIGHT AND EFFECT WERE GIVEN TO THE FORUM CLAUSE IN
RESOLVING THIS CONTROVERSY.  FOR AT LEAST TWO DECADES WE HAVE WITNESSED
AN EXPANSION OF OVERSEAS COMMERCIAL ACTIVITIES BY BUSINESS ENTERPRISES
BASED IN THE UNITED STATES.  THE BARRIER OF DISTANCE THAT ONCE TENDED
TO CONFINE A BUSINESS CONCERN TO A MODEST TERRITORY NO LONGER DOES SO.
HERE WE SEE AN AMERICAN COMPANY WITH SPECIAL EXPERTISE CONTRACTING WITH
A FOREIGN COMPANY TO TOW A COMPLEX MACHINE THOUSANDS OF MILES ACROSS
SEAS AND OCEANS.  THE EXPANSION OF AMERICAN BUSINESS AND INDUSTRY WILL
HARDLY BE ENCOURAGED IF, NOTWITHSTANDING SOLEMN CONTRACTS, WE INSIST ON
A PAROCHIAL CONCEPT THAT ALL DISPUTES MUST BE RESOLVED UNDER OUR LAWS
AND IN OUR COURTS.  ABSENT A CONTRACT FORUM, THE CONSIDERATIONS RELIED
ON BY THE COURT OF APPEALS WOULD BE PERSUASIVE REASONS FOR HOLDING AN
AMERICAN FORUM CONVENIENT IN THE TRADITIONAL SENSE, BUT IN AN ERA OF
EXPANDING WORLD TRADE AND COMMERCE, THE ABSOLUTE ASPECTS OF THE
DOCTRINE OF THE CARBON BLACK CASE HAVE LITTLE PLACE AND WOULD BE A
HEAVY HAND INDEED ON THE FUTURE DEVELOPMENT OF INTERNATIONAL COMMERCIAL
DEALINGS BY AMERICANS.  WE CANNOT HAVE TRADE AND COMMERCE IN WORLD
MARKETS AND INTERNATIONAL WATERS EXCLUSIVELY ON OUR TERMS, GOVERNED BY
OUR LAWS, AND RESOLVED IN OUR COURTS. 

FORUM-SELECTION CLAUSES HAVE HISTORICALLY NOT BEEN FAVORED BY
AMERICAN COURTS.  MANY COURTS, FEDERAL AND STATE, HAVE DECLINED TO
ENFORCE SUCH CLAUSES ON THE GROUND THAT THEY WERE "CONTRARY TO PUBLIC
POLICY," OR THAT THEIR EFFECT WAS TO "OUST THE JURISDICTION" OF THE
COURT.  /10/  ALTHOUGH THIS VIEW APPARENTLY STILL HAS CONSIDERABLE
ACCEPTANCE, OTHER COURTS ARE TENDING TO ADOPT A MORE HOSPITABLE
ATTITUDE TOWARD FORUM-SELECTION CLAUSES.  THIS VIEW, ADVANCED IN THE
WELL-REASONED DISSENTING OPINION IN THE INSTANT CASE, IS THAT SUCH
CLAUSES ARE PRIMA FACIE VALID AND SHOULD BE ENFORCED UNLESS ENFORCEMENT
IS SHOWN BY THE RESISTING PARTY TO BE "UNREASONABLE" UNDER THE
CIRCUMSTANCES.  /11/  WE BELIEVE THIS IS THE CORRECT DOCTRINE TO BE
FOLLOWED BY FEDERAL DISTRICT COURTS SITTING IN ADMIRALTY.  IT IS MERELY
THE OTHER SIDE OF THE PROPOSITION RECOGNIZED BY THIS COURT IN NATIONAL
EQUIPMENT RENTAL, LTD. V. SZUKHENT, 375 U.S. 311 (1964), HOLDING THAT
IN FEDERAL COURTS A PARTY MAY VALIDLY CONSENT TO BE SUED IN A
JURISDICTION WHERE HE CANNOT BE FOUND FOR SERVICE OF PROCESS THROUGH
CONTRACTUAL DESIGNATION OF AN "AGENT" FOR RECEIPT OF PROCESS IN THAT
JURISDICTION.  IN SO HOLDING, THE COURT STATED: 

"(IT IS SETTLED . . . THAT PARTIES TO A CONTRACT MAY AGREE IN
ADVANCE TO SUBMIT TO THE JURISDICTION OF A GIVEN COURT, TO PERMIT
NOTICE TO BE SERVED BY THE OPPOSING PARTY, OR EVEN TO WAIVE NOTICE
ALTOGETHER."  ID., AT 315-316.  THIS APPROACH IS SUBSTANTIALLY THAT
FOLLOWED IN OTHER COMMON-LAW COUNTRIES INCLUDING ENGLAND.  /12/  IT IS
THE VIEW ADVANCED BY NOTED SCHOLARS AND THAT ADOPTED BY THE RESTATEMENT
OF THE CONFLICT OF LAWS.  /13/  IT ACCORDS WITH ANCIENT CONCPETS OF
FREEDOM OF CONTRACT AND REFLECTS AN APPRECIATION OF THE EXPANDING
HORIZONS OF AMERICAN CONTRACTORS WHO SEEK BUSINESS IN ALL PARTS OF THE
WORLD.  NOT SURPRISINGLY, FOREIGN BUSINESSMEN PREFER, AS DO WE, TO HAVE
DISPUTES RESOLVED IN THEIR OWN COURTS, BUT IF THAT CHOICE IS NOT
AVAILABLE, THEN IN A NEUTRAL FORUM WITH EXPERTISE IN THE SUBJECT
MATTER.  PLAINLY, THE COURTS OF ENGLAND MEET THE STANDARDS OF
NEUTRALITY AND LONG EXPERIENCE IN ADMIRALTY LITIGATION.  THE CHOICE OF
THAT FORUM WAS MADE IN AN ARM'S-LENGTH NEGOTIATION BY EXPERIENCED AND
SOPHISTICATED BUSINESSMEN, AND ABSENT SOME COMPELLING AND
COUNTERVAILING REASON IT SHOULD BE HONORED BY THE PARTIES AND ENFORCED
BY THE COURTS. 

THE ARGUMENT THAT SUCH CLAUSES ARE IMPROPER BECAUSE THEY TEND TO
"OUST" A COURT OF JURISDICTION IS HARDLY MORE THAN A VESTIGIAL LEGAL
FICTION.  IT APPEARS TO REST AT CORE ON HISTORICAL JUDICIAL RESISTANCE
TO ANY ATTEMPT TO REDUCE THE POWER AND BUSINESS OF A PARTICULAR COURT
AND HAS LITTLE PLACE IN AN ERA WHEN ALL COURTS ARE OVERLOADED AND WHEN
BUSINESSES ONCE ESSENTIALLY LOCAL NOW OPERATE IN WORLD MARKETS.  IT
REFLECTS SOMETHING OF A PROVINCIAL ATTITUDE REGARDING THE FAIRNESS OF
OTHER TRIBUNALS.  NO ONE SERIOUSLY CONTENDS IN THIS CASE THAT THE FORUM
SELECTION CLAUSE "OUSTED" THE DISTRICT COURT OF JURISDICTION OVER
ZAPATA'S ACTION.  THE THRESHOLD QUESTION IS WHETHER THAT COURT SHOULD
HAVE EXERCISED ITS JURISDICTION TO DO MORE THAN GIVE EFFECT TO THE
LEGITIMATE EXPECTATIONS OF THE PARTIES, MANIFESTED IN THEIR FREELY
NEGOTIATED AGREEMENT, BY SPECIFICALLY ENFORCING THE FORUM CLAUSE. 

THERE ARE COMPELLING REASONS WHY A FREELY NEGOTIATED PRIVATE
INTERNATIONAL AGREEMENT, UNAFFECTED BY FRAUD, UNDUE INFLUENCE, OR
OVERWEENING BARGAINING POWER, /14/  SUCH AS THAT INVOLVED HERE, SHOULD
BE GIVEN FULL EFFECT.  IN THIS CASE, FOR EXAMPLE, WE ARE CONCERNED WITH
A FAR FROM ROUTINE TRANSACTION BETWEEN COMPANIES OF TWO DIFFERENT
NATIONS CONTEMPLATING THE TOW OF AN EXTREMELY COSTLY PIECE OF EQUIPMENT
FROM LOUISIANA ACROSS THE GULF OF MEXICO AND THE ATLANTIC OCEAN,
THROUGH THE MEDITERRANEAN SEA TO ITS FINAL DESTINATION IN THE ADRIATIC
SEA.  IN THE COURSE OF ITS VOYAGE, IT WAS TO TRAVERSE THE WATERS OF
MANY JURISDICTIONS.  THE CHAPARRAL COULD HAVE BEEN DAMAGED AT ANY POINT
ALONG THE ROUTE, AND THERE WERE COUNTLESS POSSIBLE PORTS OF REFUGE. 
THAT THE ACCIDENT OCCURRED IN THE GULF OF MEXICO AND THE BARGE WAS
TOWED TO TAMPA IN AN EMERGENCY WERE MERE FORTUITIES.  IT CANNOT BE
DOUBTED FOR A MOMENT THAT THE PARTIES SOUGHT TO PROVIDE FOR A NEUTRAL
FORUM FOR THE RESOLUTION OF ANY DISPUTES ARISING DURING THE TOW. 
MANIFESTLY MUCH UNCERTAINTY AND POSSIBLY GREAT INCONVENIENCE TO BOTH
PARTIES COULD ARISE IF A SUIT COULD BE MAINTAINED IN ANY JURISDICTION
IN WHICH AN ACCIDENT MIGHT OCCUR OR IF JURISDICTION WERE LEFT TO ANY
PLACE WHERE THE BREMEN OR UNTERWESER MIGHT HAPPEN TO BE FOUND.  /15/
THE ELIMINATION OF ALL SUCH UNCERTAINTIES BY AGREEING IN ADVANCE ON A
FORUM ACCEPTABLE TO BOTH PARTIES IS AN INDISPENSABLE ELEMENT IN
INTERNATIONAL TRADE, COMMERCE AND CONTRACTING.  THERE IS STRONG
EVIDENCE THAT THE FORUM CLAUSE WAS A VITAL PART OF THE AGREEMENT, /16/
AND IT WOULD BE UNREALISTIC TO THINK THAT THE PARTIES DID NOT CONDUCT
THEIR NEGOTIATIONS, INCLUDING FIXING THE MONETARY TERMS, WITH THE
CONSEQUENCES OF THE FORUM CLAUSE FIGURING PROMINENTLY IN THEIR
CALCULATIONS.  UNDER THESE CIRCUMSTANCES, AS JUSTICE KARMINSKI REASONED
IN SUSTAINING JURISDICTION OVER ZAPATA IN THE HIGH COURT OF JUSTICE,
"(THE FORCE OF AN AGREEMENT FOR LITIGATION IN THIS COUNTRY, FREELY
ENTERED INTO BETWEEN TWO COMPETENT PARTIES, SEEMS TO ME TO BE VERY
POWERFUL." 

THUS, IN THE LIGHT OF PRESENT-DAY COMMERCIAL REALITIES AND EXPANDING
INTERNATIONAL TRADE WE CONCLUDE THAT THE FORUM CLAUSE SHOULD CONTROL
ABSENT A STRONG SHOWING THAT IT SHOULD BE SET ASIDE.  ALTHOUGH THEIR
OPINIONS ARE NOT ALTOGETHER EXPLICIT, IT SEEMS REASONABLY CLEAR THAT
THE DISTRICT COURT AND THE COURT OF APPEALS PLACED THE BURDEN ON
UNTERWESER TO SHOW THAT LONDON WOULD BE A MORE CONVENIENT FORUM THAN
TAMPA, ALTHOUGH THE CONTRACT EXPRESSLY RESOLVED THAT ISSUE.  THE
CORRECT APPROACH WOULD HAVE BEEN TO ENFORCE THE FORUM CLAUSE
SPECIFICALLY UNLESS ZAPATA COULD CLEARLY SHOW THAT ENFORCEMENT WOULD BE
UNREASONABLE AND UNJUST, OR THAT THE CLAUSE WAS INVALID FOR SUCH
REASONS AS FRAUD OR OVERREACHING.  ACCORDINGLY, THE CASE MUST BE
REMANDED FOR RECONSIDERATION. 

WE NOTE, HOWEVER, THAT THERE IS NOTHING IN THE RECORD PRESENTLY
BEFORE US THAT WOULD SUPPORT A REFUSAL TO ENFORCE THE FORUM CLAUSE. 
THE COURT OF APPEALS SUGGESTED THAT ENFORCEMENT WOULD BE CONTRARY TO
THE PUBLIC POLICY OF THE FORUM UNDER BISSO V. INLAND WATERWAYS CORP.,
349 U.S. 85 (1955), BECAUSE OF THE PROSPECT THAT THE ENGLISH COURTS
WOULD ENFORCE THE CLAUSES OF THE TOWAGE CONTRACT PURPORTING TO
EXCULPATE UNTERWESER FROM LIABILITY FOR DAMAGES TO THE CHAPARRAL.  A
CONTRACTUAL CHOICE-OF-FORUM CLAUSE SHOULD BE HELD UNENFORCEABLE IF
ENFORCEMENT WOULD CONTRAVENE A STRONG PUBLIC POLICY OF THE FORUM IN
WHICH SUIT IS BROUGHT, WHETHER DECLARED BY STATUTE OR BY JUDICIAL
DECISION.  SEE, E.G., BOYD V. GRAND TRUNK W.R. CO., 338 U.S. 263
(1949).  IT IS CLEAR, HOWEVER, THAT WHATEVER THE PROPER SCOPE OF THE
POLICY EXPRESSED IN BISSO, /17/  IT DOES NOT REACH THIS CASE.  BISSO
RESTED ON CONSIDERATIONS WITH RESPECT TO THE TOWAGE BUSINESS STRICTLY
IN AMERICAN WATERS, AND THOSE CONSIDERATIONS ARE NOT CONTROLLING IN AN
INTERNATIONAL COMMERCIAL AGREEMENT.  SPEAKING FOR THE DISSENTING JUDGES
IN THE COURT OF APPEALS, JUDGE WISDOM POINTED OUT: 

"(WE SHOULD BE CAREFUL NOT TO OVER-EMPHASIZE THE STRENGTH OF THE
(BISSO) POLICY . . . (TWO CONCERNS UNDERLIE THE REJECTION OF
EXCLUPATORY AGREEMENTS:  THAT THEY MAY BE PRODUCED BY OVERWEENING
BARGAINING POWER; AND THAT THEY DO NOT SUFFICIENTLY DISCOURAGE
NEGLIGENCE . . . HERE THE CONDUCT IN QUESTION IS THAT OF A FOREIGN
PARTY OCCURRING IN INTERNATIONAL WATERS OUTSIDE OUR JURISDICTION.  THE
EVIDENCE DISPUTES ANY NOTION OF OVERREACHING IN THE CONTRACTUAL
AGREEMENT.  AND FOR ALL WE KNOW, THE UNCERTAINTIES AND DANGERS IN THE
NEW FIELD OF TRANSOCEANIC TOWAGE OF OIL RIGS WERE SO GREAT THAT THE
TOWER WAS UNWILLING TO TAKE FINANCIAL RESPONSIBILITY FOR THE RISKS, AND
THE PARTIES THUS ALLOCATED RESPONSIBILITY FOR THE VOYAGE TO THE TOW. 
IT IS EQUALLY POSSIBLE THAT THE CONTRACT PRICE TOOK THIS FACTOR INTO
ACCOUNT.  I CONCLUDE THAT WE SHOULD NOT INVALIDATE THE FORUM SELECTION
CLAUSE HERE UNLESS WE ARE FIRMLY CONVINCED THAT WE WOULD THEREBY
SIGNIFICANTLY ENCOURAGE NEGLIGENT CONDUCT WITHIN THE BOUNDARIES OF THE
UNITED STATES."  428 F.2D, AT 907-908.  (FOOTNOTES OMITTED.) 

COURTS HAVE ALSO SUGGESTED THAT A FORUM CLAUSE, EVEN THOUGH IT IS
FREELY BARGAINED FOR AND CONTRAVENES NO IMPORTANT PUBLIC POLICY OF THE
FORUM, MAY NEVERTHELESS BE "UNREASONABLE" AND UNENFORCEABLE IF THE
CHOSEN FORUM IS SERIOUSLY INCONVENIENT FOR THE TRIAL OF THE ACTION.  OF
COURSE, WHERE IT CAN BE SAID WITH REASONABLE ASSURANCE THAT AT THE TIME
THEY ENTERED THE CONTRACT, THE PARTIES TO A FREELY NEGOTIATED PRIVATE
INTERNATIONAL COMMERCIAL AGREEMENT CONTEMPLATED THE CLAIMED
INCONVENIENCE, IT IS DIFFICULT TO SEE WHY ANY SUCH CLAIM OF
INCONVENIENCE SHOULD BE HEARD TO RENDER THE FORUM CLAUSE
UNENFORCEABLE.  WE ARE NOT HERE DEALING WITH AN AGREEMENT BETWEEN TWO
AMERICANS TO RESOLVE THEIR ESSENTIALLY LOCAL DISPUTES IN A REMOTE ALIEN
FORUM.  IN SUCH A CASE, THE SERIOUS INCONVENIENCE OF THE CONTRACTUAL
FORUM TO ONE OR BOTH OF THE PARTIES MIGHT CARRY GREATER WEIGHT IN
DETERMINING THE REASONABLENESS OF THE FORUM CLAUSE.  THE REMOTENESS OF
THE FORUM MIGHT SUGGEST THAT THE AGREEMENT WAS AN ADHESIVE ONE, OR THAT
THE PARTIES DID NOT HAVE THE PARTICULAR CONTROVERSY IN MIND WHEN THEY
MADE THEIR AGREEMENT; YET EVEN THERE THE PARTY CLAIMING SHOULD BEAR A
HEAVY BURDEN OF PROOF.  /18/  SIMILARLY, SELECTION OF A REMOTE FORUM TO
APPLY DIFFERING FOREIGN LAW TO AN ESSENTIALLY AMERICAN CONTROVERSY
MIGHT CONTRAVENE AN IMPORTANT PUBLIC POLICY OF THE FORUM.  FOR EXAMPLE,
SO LONG AS BISSO GOVERNS AMERICAN COURTS WITH RESPECT TO THE TOWAGE
BUSINESS IN AMERICAN WATERS, IT WOULD QUITE ARGUABLY BE IMPROPER TO
PERMIT AN AMERICAN TOWER TO AVOID THAT POLICY BY PROVIDING A FOREIGN
FORUM FOR RESOLUTION OF HIS DISPUTES WITH AN AMERICAN TOWEE. 

THIS CASE, HOWEVER, INVOLVES A FREELY NEGOITATED INTERNATIONAL
COMMERCIAL TRANSACTION BETWEEN A GERMAN AND AN AMERICAN CORPORATION FOR
TOWAGE OF A VESSEL FROM THE GULF OF MEXICO TO THE ADRIATIC SEA.  AS
NOTED, SELECTION OF A LONDON FORUM WAS CLEARLY A REASONABLE EFFORT TO
BRING VITAL CERTAINTY TO THIS INTERNATIONAL TRANSACTION AND TO PROVIDE
A NEUTRAL FORUM EXPERIENCED AND CAPABLE IN THE RESOLUTION OF ADMIRALTY
LITIGATION.  WHATEVER "INCONVENIENCE" ZAPATA WOULD SUFFER BY BEING
FORCED TO LITIGATE IN THE CONTRACTUAL FORUM AS IT AGREED TO DO WAS
CLEARLY FORESEEABLE AT THE TIME OF CONTRACTING.  IN SUCH CIRCUMSTANCES
IT SHOULD BE INCUMBENT ON THE PARTY SEEKING TO ESCAPE HIS CONTRACT TO
SHOW THAT TRIAL IN THE CONTRACTUAL FORUM WILL BE SO GRAVELY DIFFICULT
AND INCONVENIENT THAT HE WILL FOR ALL PRACTICAL PURPOSES BE DEPRIVED OF
HIS DAY IN COURT.  ABSENT THAT, THERE IS NO BASIS FOR CONCLUDING THAT
IT WOULD BE UNFAIR, OR UNREASONABLE TO HOLD THAT PARTY TO HIS BARGAIN. 

IN THE COURSE OF ITS RULING ON UNTERWESER'S SECOND MOTION TO STAY
THE PROCEEDINGS IN TAMPA, THE DISTRICT COURT DID MAKE A CONCLUSORY
FINDING THAT THE BALANCE OF CONVENIENCE WAS "STRONGLY" IN FAVOR OF
LITIGATION IN TAMPA.  HOWEVER, AS PREVIOUSLY NOTED, IN MAKING THAT
FINDING THE COURT ERRONEOUSLY PLACED THE BURDEN OF PROOF ON UNTERWESER
TO SHOW THAT THE BALANCE OF CONVENIENCE WAS STRONGLY IN ITS FAVOR. 
/19/  MOREOVER, THE FINDING FALLS FAR SHORT OF A CONCLUSION THAT ZAPATA
WOULD BE EFFECTIVELY DEPRIVED OF ITS DAY IN COURT SHOULD IT BE FORCED
TO LITIGATE IN LONDON.  INDEED, IT CANNOT EVEN BE ASSUMED THAT IT WOULD
BE PLACED TO THE EXPENSE OF TRANSPORTING ITS WITNESSES TO LONDON.  IT
IS NOT UNUSUAL FOR IMPORTANT ISSUES IN INTERNATIONAL ADMIRALTY CASES TO
BE DEALT WITH BY DEPOSITION.  BOTH THE DISTRICT COURT AND THE COURT OF
APPEALS MAJORITY APPEARED SATISFIED THAT UNTERWESER COULD RECEIVE A
FAIR HEARING IN TAMPA BY USING DEPOSITION TESTIMONY OF ITS WITNESSES
FROM DISTANT PLACES, AND THERE IS NO REASON TO CONCLUDE THAT ZAPATA
COULD NOT USE DEPOSITION TESTIMONY TO EQUAL ADVANTAGE IF FORCED TO
LITIGATE IN LONDON AS IT BOUND ITSELF TO DO.  NEVERTHELESS, TO ALLOW
ZAPATA OPPORTUNITY TO CARRY ITS HEAVY BURDEN OF SHOWING NOT ONLY THAT
THE BALANCE OF CONVENIENCE IS STRONGLY IN FAVOR OF TRIAL IN TAMPA (THAT
IS, THAT IT WILL BE FAR MORE INCONVENIENT FOR ZAPATA TO LITIGATE IN
LONDON THAN IT WILL BE FOR UNTERWESER TO LITIGATE IN TAMPA), BUT ALSO
THAT A LONDON TRIAL WILL BE SO MANIFESTLY AND GRAVELY INCONVENIENT TO
ZAPATA THAT IT WILL BE EFFECTIVELY DEPRIVED OF A MEANINGFUL DAY IN
COURT, WE REMAND FOR FURTHER PROCEEDINGS. 

ZAPATA'S REMAINING CONTENTIONS DO NOT REQUIRE EXTENDED TREATMENT. 
IT IS CLEAR THAT UNTERWESER'S ACTION IN FILING ITS LIMITATION COMPLAINT
IN THE DISTRICT COURT IN TAMPA WAS, SO FAR AS ZAPATA WAS CONCERNED,
SOLELY A DEFENSIVE MEASURE MADE NECESSARY AS A RESPONSE TO ZAPATA'S
BREACH OF THE FORUM CLAUSE OF THE CONTRACT.  WHEN THE SIX-MONTH
STATUTORY PERIOD FOR FILING AN ACTION TO LIMIT ITS LIABILITY HAD ALMOST
RUN WITHOUT THE DISTRICT COURT'S HAVING RULED ON UNTERWESER'S INITIAL
MOTION TO DISMISS OR STAY ZAPATA'S ACTION PURSUANT TO THE FORUM CLAUSE,
UNTERWESER HAD NO OTHER PRUDENT ALTERNATIVE BUT TO PROTECT ITSELF BY
FILING FOR LIMITATION OF ITS LIABILITY.  /20/  ITS ACTION IN SO DOING
WAS A DIRECT CONSEQUENCE OF ZAPATA'S FAILURE TO ABIDE BY THE FORUM
CLAUSE OF THE TOWAGE CONTRACT.  THERE IS NO BASIS ON WHICH TO CONCLUDE
THAT THIS PURELY NECESSARY DEFENSIVE ACTION BY UNTERWESER SHOULD
PRECLUDE IT FROM RELYING ON THE FORUM CLAUSE IT BARGAINED FOR. 

FOR THE FIRST TIME IN THIS LITIGATION, ZAPATA HAS SUGGESTED TO THIS
COURT THAT THE FORUM CLAUSE SHOULD NOT BE CONSTRUED TO PROVIDE FOR AN
EXCLUSIVE FORUM OR TO INCLUDE IN REM ACTIONS.  HOWEVER, THE LANGUAGE OF
THE CLAUSE IS CLEARLY MANDATORY AND ALL-ENCOMPASSING; THE LANGUAGE OF
THE CLAUSE IN THE CARBON BLACK CASE WAS FAR DIFFERENT.  /21/ 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              VACATED AND REMANDED. 

/1/  COMPARE, E.G., CENTRAL CONTRACTING CO. V. MARYLAND CASUALTY
CO., 367 F.2D 341 (CA 3 1966), AND WM. H. MULLER & CO. V. SWEDISH
AMERICAN LINE LTD., 224 F.2D 806 (CA 2), CERT. DENIED, 350 U.S. 903
(1955), WITH CARBON BLACK EXPORT, INC. V. THE MONROSA, 254 F.2D 297 (CA
5 1958), CERT. DISMISSED, 359 U.S. 180 (1959). 

/2/  THE GENERAL TOWAGE CONDITIONS OF THE CONTRACT INCLUDED THE
FOLLOWING: 

"1.  . . . (UNTERWESER AND ITS) MASTERS AND CREWS ARE NOT
RESPONSIBLE FOR DEFAULTS AND/OR ERRORS IN THE NAVIGATION OF THE TOW. 

"2.  . . . 

"B) DAMAGES SUFFERED BY THE TOWED OBJECT ARE IN ANY CASE FOR ACCOUNT
OF ITS OWNERS." 

IN ADDITION, THE CONTRACT PROVIDED THAT ANY INSURANCE OF THE CHAPARRAL
WAS TO BE "FOR ACCOUNT OF" ZAPATA.  UNTERWESER'S INITIAL TELEGRAPHIC
BID HAD ALSO OFFERED TO "ARRANGE INSURANCE COVERING TOWAGE RISK FOR RIG
IF DESIRED."  AS ZAPATA HAD CHOSEN TO BE SELF-INSURED ON ALL ITS RIGS,
THE LOSS IN THIS CASE WAS NOT COMPENSATED BY INSURANCE. 

/3/  THE BREMEN WAS ARRESTED BY A UNITED STATES MARSHAL ACTING
PURSUANT TO ZAPATA'S COMPLAINT IMMEDIATELY UPON HER ARRIVAL IN TAMPA. 
THE TUG WAS SUBSEQUENTLY RELEASED WHEN UNTERWESER FURNISHED SECURITY IN
THE AMOUNT OF $3,500,000. 

/4/  ZAPATA APPEARED SPECIALLY AND MOVED TO SET ASIDE SERVICE OF
PROCESS OUTSIDE THE COUNTRY.  JUSTICE KARMINSKI OF THE HIGH COURT OF
JUSTICE DENIED THE MOTION ON THE GROUND THE CONTRACTUAL CHOICE-OF-FORUM
PROVISION CONFERRED JURISDICTION AND WOULD BE ENFORCED, ABSENT A
FACTUAL SHOWING IT WOULD NOT BE "FAIR AND RIGHT" TO DO SO.  HE DID NOT
BELIEVE ZAPATA HAD MADE SUCH A SHOWING, AND HELD THAT IT SHOULD BE
REQUIRED TO "STICK TO (ITS) BARGAIN."  APP. 206, 211, 213.  THE COURT
OF APPEALS DISMISSED AN APPEAL ON THE GROUND THAT JUSTICE KARMINSKI HAD
PROPERLY APPLIED THE ENGLISH RULE.  LORD JUSTICE WILLMER STATED THAT
RULE AS FOLLOWS: 

"THE LAW ON THE SUBJECT, I THINK, IS NOT OPEN TO DOUBT.  . . . IT IS
ALWAYS OPEN TO PARTIES TO STIPULATE . . . THAT A PARTICULAR COURT SHALL
HAVE JURISDICTION OVER ANY DISPUTE ARISING OUT OF THEIR CONTRACT.  HERE
THE PARTIES CHOSE TO STIPULATE THAT DISPUTES WERE TO BE REFERRED TO THE
'LONDON COURT,' WHICH I TAKE AS MEANING THE HIGH COURT IN THIS
COUNTRY.  PRIMA FACIE IT IS THE POLICY OF THE COURT TO HOLD PARTIES TO
THE BARGAIN INTO WHICH THEY HAVE ENTERED.  . . . BUT THAT IS NOT AN
INFLEXIBLE RULE, AS WAS SHOWN, FOR INSTANCE, BY THE CASE OF THE
FEHMARN, (1957) 1 LLOYD'S REP. 511; (C.A.)  (1957) 2 LLOYD'S REP. 551. 
. . . 

"I APPROACH THE MATTER, THEREFORE, IN THIS WAY, THAT THE COURT HAS A
DISCRETION, BUT IT IS A DISCRETION WHICH, IN THE ORDINARY WAY AND IN
THE ABSENCE OF STRONG REASON TO THE CONTRARY, WILL BE EXERCISED IN
FAVOUR OF HOLDING PARTIES TO THEIR BARGAIN.  THE QUESTION IS WHETHER
SUFFICIENT CIRCUMSTANCES HAVE BEEN SHOWN TO EXIST IN THIS CASE TO MAKE
IT DESIRABLE, ON THE GROUNDS OF BALANCE OF CONVENIENCE, THAT
PROCEEDINGS SHOULD NOT TAKE PLACE IN THIS COUNTRY.  . . . " (1968) 2
LLOYD'S REP. 158, 162-163. 

/5/  46 U.S.C. 183, 185.  SEE GENERALLY G. GILMORE & C. BLACK,
ADMIRALTY 10-15 (1957). 

/6/  IN ITS LIMITATION COMPLAINT, UNTERWESER STATED IT "RESERVED)
ALL RIGHTS" UNDER ITS PREVIOUS MOTION TO DISMISS OR STAY ZAPATA'S
ACTION, AND REASSERTED THAT THE HIGH COURT OF JUSTICE WAS THE PROPER
FORUM FOR DETERMINING THE ENTIRE CONTROVERSY, INCLUDING ITS OWN RIGHT
TO LIMITED LIABILITY, IN ACCORD WITH THE CONTRACTUAL FORUM CLAUSE. 
UNTERWESER LATER COUNTERCLAIMED, SETTING FORTH THE SAME CONTRACTUAL
CAUSE OF ACTION AS IN ITS ENGLISH ACTION AND A FURTHER CAUSE OF ACTION
FOR SALVAGE ARISING OUT OF THE BREMEN'S SERVICES FOLLOWING THE
CASUALTY.  IN ITS COUNTERCLAIM, UNTERWESER AGAIN ASSERTED THAT THE HIGH
COURT OF JUSTICE IN LONDON WAS THE PROPER FORUM FOR DETERMINING ALL
ASPECTS OF THE CONTROVERSY, INCLUDING ITS COUNTERCLAIM.     /7/  THE
CARBON BLACK COURT WENT ON TO SAY THAT IT WAS, IN ANY EVENT,
UNNECESSARY FOR IT TO REJECT THE MORE LIBERAL POSITION TAKEN IN WM. H.
MULLER & CO. V. SWEDISH AMERICAN LINE LTD., 224 F.2D 806 (CA 2), CERT.
DENIED, 350 U.S. 903 (1955), BECAUSE THE CASE BEFORE IT HAD A GREATER
NEXUS WITH THE UNITED STATES THAN THAT IN MULLER. 

/8/  THE RECORD CONTAINS AN UNDISPUTED AFFIDAVIT OF A BRITISH
SOLICITOR STATING AN OPINION THAT THE EXCULPATORY CLAUSES OF THE
CONTRACT WOULD BE HELD "PRIMA FACIE VALID AND ENFORCEABLE" AGAINST
ZAPATA IN ANY ACTION MAINTAINED IN ENGLAND IN WHICH ZAPATA ALLEGED THAT
DEFAULTS OR ERRORS IN UNTERWESER'S TOW CAUSED THE CASUALTY AND DAMAGE
TO THE CHAPARRAL. 

IN ADDITION, IT IS NOT DISPUTED THAT WHILE THE LIMITATION FUND IN
THE DISTRICT COURT IN TAMPA AMOUNTS TO $1,390,000, THE LIMITATION FUND
IN ENGLAND WOULD BE ONLY SLIGHTLY IN EXCESS OF $80,000 UNDER ENGLISH
LAW. 

/9/  THE COURT OF APPEALS ALSO INDICATED IN PASSING THAT EVEN IF IT
TOOK THE VIEW THAT CHOICE-OF-FORUM CLAUSES WERE ENFORCEABLE UNLESS
"UNREASONABLE" IT WAS "DOUBTFUL" THAT ENFORCEMENT WOULD BE PROPER HERE
BECAUSE THE EXCULPATORY CLAUSES WOULD DENY ZAPATA RELIEF TO WHICH IT
WAS "ENTITLED" AND BECAUSE ENGLAND WAS "SERIOUSLY INCONVENIENT" FOR
TRIAL OF THE ACTION. 

/10/  MANY DECISIONS REFLECTING THIS VIEW ARE COLLECTED IN ANNOT.,
56 A.L.R.2D 300, 306-320 (1957), AND LATER CASE SERVICE (1967). 

FOR LEADING EARLY CASES, SEE, E.G., NUTE V. HAMILTON MUTUAL INS.
CO., 72 MASS. (6 GRAY) 174 (1856); NASHUA RIVER PAPER CO. V. HAMMERMILL
PAPER CO., 223 MASS. 8, 111 N.E. 678 (1916); BENSON V. EASTERN BLDG. &
LOAN ASSN., 174 N.Y. 83, 66 N.E. 627 (1903). 

THE EARLY ADMIRALTY CASES WERE IN ACCORD.  SEE, E.G., WOOD & SELICK,
INC. V. COMPAGNIE GENERALE TRANSATLANTIQUE, 43 F.2D 941 (CA 2 1930);
THE CIANO, 58 F.SUPP.  65 (ED PA. 1944); KUHNHOLD V. COMPAGNIE GENERALE
TRANSATLANTIQUE, 251 F. 387 (SDNY 1918); PRINCE STEAM-SHIPPING CO. V.
LEHMAN, 39 F. 704 (SDNY 1889). 

IN INSURANCE CO. V. MORSE, 20 WALL.  445 (1874), THIS COURT BROADLY
STATED THAT "AGREEMENTS IN ADVANCE TO OUST THE COURTS OF THE
JURISDICTION CONFERRED BY LAW ARE ILLEGAL AND VOID."  ID., AT 451.  BUT
THE HOLDING OF THAT CASE WAS ONLY THAT THE STATE OF WISCONSIN COULD NOT
BY STATUTE FORCE A FOREIGN CORPORATION TO "AGREE" TO SURRENDER ITS
FEDERAL STATUTORY RIGHT TO REMOVE A STATE COURT ACTION TO THE FEDERAL
COURTS AS A CONDITION OF DOING BUSINESS IN WISCONSIN.  THUS, THE CASE
IS PROPERLY UNDERSTOOD AS ONE IN WHICH A STATE STATUTORY REQUIREMENT
WAS VIEWED AS IMPOSING AN UNCONSTITUTIONAL CONDITION ON THE EXERCISE OF
THE FEDERAL RIGHT OF REMOVAL.  SEE, E.G., WISCONSIN V. PHILADELPHIA &
READING COAL CO., 241 U.S. 329 (1916). 

AS JUDGE HAND NOTED IN KRENGER V. PENNSYLVANIA R. CO., 174 F.2D 556
(CA 2 1949), EVEN AT THAT DATE THERE WAS IN FACT NO "ABSOLUTE TABOO"
AGAINST SUCH CLAUSES.  SEE, E.G., MITTENTHAL V. MASCAGNI, 183 MASS. 19,
66 N.E. 425 (1903); DALEY V. PEOPLE'S BLDG., LOAN & SAV. ASSN., 178
MASS. 13, 59 N.E. 452 (1901) (HOLMES, J.).  SEE ALSO CERRO DE PASCO
COPPER CORP. V. KNUT KNUTSEN, O.A.S., 187 F.2D 990 (CA 2 1951). 

/11/ E.G., CENTRAL CONTRACTING CO. V. MARYLAND CASUALTY CO., 367
F.2D 341 (CA 3 1966); ANASTASIADIS V. S.S. LITTLE JOHN, 346 F.2D 281
(CA 5 1965) (BY IMPLICATION); WM. H. MULLER & CO. V. SWEDISH AMERICAN
LINE LTD., 224 F.2D 806 (CA 2), CERT. DENIED, 350 U.S. 903 (1955);
CERRO DE PASCO COPPER CORP. V. KNUT KNUTSEN, O.A.S., 187 F.2D 990 (CA 2
1951); CENTRAL CONTRACTING CO. V. C. E. YOUNGDAHL & CO., 418 PA. 122,
209 A.2D 810 (1965). 

THE MULLER CASE WAS OVERRULED IN INDUSSA CORP. V. S.S. RANBORG, 377
F.2D 200 (CA 2 1967), INSOFAR AS IT HELD THAT THE FORUM CLAUSE WAS NOT
INCONSISTENT WITH THE "LESSENING OF LIABILITY" PROVISION OF THE
CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C. 1303(8), WHICH WAS APPLICABLE
TO THE TRANSACTIONS IN MULLER, INDUSSA, AND CARBON BLACK.  THAT ACT IS
NOT APPLICABLE IN THIS CASE. 

/12/  IN ADDITION TO THE DECISION OF THE COURT OF APPEAL IN THE
INSTANT CASE, UNTERWESER REEDEREI G. M. B. H. V. ZAPATA OFF-SHORE CO.
(THE CHAPARRAL), (1968) 2 LLOYD'S REP. 158 (C.A.), SEE E.G., MACKENDER
V. FELDIA A.G., (1967) 2 Q.B. 590 (C.A.); THE FEHMARN, (1958) 1 W.L.R.
159 (C.A.); LAW V. GARRETT, (1878) 8 CH.D. 26 (C.A.); THE ELEFTHERIA,
(1970) P. 94.  AS INDICATED BY THE CLEAR STATEMENTS IN THE ELEFTHERIA
AND OF LORD JUSTICE WILLMER IN THIS CASE, SUPRA, N. 4, THE DECISION OF
THE TRIAL COURT CALLS FOR AN EXERCISE OF DISCRETION.  SEE GENERALLY A.
DICEY & J. MORRIS, THE CONFLICT OF LAWS 979-980, 1087-1088 (8TH ED.
1967); COWEN & MENDES DA COSTA, THE CONTRACTUAL FORUM:  SITUATION IN
ENGLAND AND THE BRITISH COMMONWEALTH, 13 AM.J.COMP.LAW 179 (1964);
REESE, THE CONTRACTUAL FORUM:  SITUATION IN THE UNITED STATES, ID., AT
187, 190 N. 13; GRAUPNER, CONTRACTUAL STIPULATIONS CONFERRING EXCLUSIVE
JURISDICTION UPON FOREIGN COURTS IN THE LAW OF ENGLAND AND SCOTLAND, 59
L.Q.REV.  227 (1943). 

/13/  RESTATEMENT (SECOND) OF THE CONFLICT OF LAWS 80 (1971); REESE,
THE CONTRACTUAL FORUM:  SITUATION IN THE UNITED STATES, 13
AM.J.COMP.LAW 187 (1964); A. EHRENZWEIG, CONFLICT OF LAWS 41 (1962). 
SEE ALSO MODEL CHOICE OF FORUM ACT (NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS 1968). 

/14/  THE RECORD HERE REFUTES ANY NOTION OF OVERWEENING BARGAINING
POWER.  JUDGE WISDOM, DISSENTING, IN THE COURT OF APPEALS NOTED: 

"ZAPATA HAS NEITHER PRESENTED EVIDENCE OF NOR ALLEGED FRAUD OR UNDUE
BARGAINING POWER IN THE AGREEMENT.  UNTERWESER WAS ONLY ONE OF SEVERAL
COMPANIES BIDDING ON THE PROJECT.  NO EVIDENCE CONTRADICTS ITS MANAGING
DIRECTOR'S AFFIDAVIT THAT IT SPECIFIED ENGLISH COURTS 'IN AN EFFORT TO
MEET ZAPATA OFF-SHORE COMPANY HALF WAY.'  ZAPATA'S VICE PRESIDENT HAS
DECLARED BY AFFIDAVIT THAT NO SPECIFIC NEGOTIATIONS CONCERNING THE
FORUM CLAUSE TOOK PLACE.  BUT THIS WAS NOT SIMPLY A FORM CONTRACT WITH
BOILERPLATE LANGUAGE THAT ZAPATA HAD NO POWER TO ALTER.  THE TOWING OF
AN OIL RIG ACROSS THE ATLANTIC WAS A NEW BUSINESS.  ZAPATA DID MAKE
ALTERATIONS TO THE CONTRACT SUBMITTED BY UNTERWESER.  THE FORUM CLAUSE
COULD HARDLY BE IGNORED.  IT IS THE FINAL SENTENCE OF THE AGREEMENT,
IMMEDIATELY PRECEDING THE DATE AND THE PARTIES' SIGNATURES.  . . . "
428 F.2D 888, 907. 

/15/  AT THE VERY LEAST, THE CLAUSE WAS AN EFFORT TO ELIMINATE ALL
UNCERTAINTY AS TO THE NATURE, LOCATION, AND OUTLOOK OF THE FORUM IN
WHICH THESE COMPANIES OF DIFFERING NATIONALITIES MIGHT FIND
THEMSELVES.  MOREOVER, WHILE THE CONTRACT HERE DID NOT SPECIFICALLY
PROVIDE THAT THE SUBSTANTIVE LAW OF ENGLAND SHOULD BE APPLIED, IT IS
THE GENERAL RULE IN ENGLISH COURTS THAT THE PARTIES ARE ASSUMED, ABSENT
CONTRARY INDICATION, TO HAVE DESIGNATED THE FORUM WITH THE VIEW THAT IT
SHOULD APPLY ITS OWN LAW.  SEE, E.G., TZORTZIS V. MONARK LINE A/B,
(1968) 1 W.L.R. 406 (C.A.); SEE GENERALLY 1 T. CARVER, CARRIAGE BY SEA
496-497 (12TH ED. 1971); G. CHESHIRE, PRIVATE INTERNATIONAL LAW 193
(7TH ED. 1965); A. DICEY & J. MORRIS, THE CONFLICT OF LAWS 705, 1046
(8TH ED. 1967); COLLINS, ARBITRATION CLAUSES AND FORUM SELECTING
CLAUSES IN THE CONFLICT OF LAWS:  SOME RECENT DEVELOPMENTS IN ENGLAND,
2 J.MAR.L.&COMM.  363, 365-370 AND N. 7 (1971).  IT IS THEREFORE
REASONABLE TO CONCLUDE THAT THE FORUM CLAUSE WAS ALSO AN EFFORT TO
OBTAIN CERTAINTY AS TO THE APPLICABLE SUBSTANTIVE LAW. 

THE RECORD CONTAINS AN AFFIDAVIT OF A MANAGING DIRECTOR OF
UNTERWESER STATING THAT UNTERWESER CONSIDERED THE CHOICE-OF-FORUM
PROVISION TO BE OF "OVERRIDING IMPORTANCE" TO THE TRANSACTION.  HE
STATED THAT UNTERWESER TOWAGE CONTRACTS ORDINARILY PROVIDE FOR
EXCLUSIVE GERMAN JURISDICTION AND APPLICATION OF GERMAN LAW, BUT THAT
"(IN THIS INSTANCE, IN AN EFFORT TO MEET (ZAPATA) HALF WAY,
(UNTERWESER) PROPOSED THE LONDON COURT OF JUSTICE.  HAD THIS PROVISION
NOT BEEN ACCEPTED BY (ZAPATA), (UNTERWESER) WOULD NOT HAVE ENTERED INTO
THE TOWAGE CONTRACT.  . . . " HE ALSO STATED THAT THE PARTIES INTENDED,
BY DESIGNATING THE LONDON FORUM, THAT ENGLISH LAW WOULD BE APPLIED.  A
RESPONSIVE AFFIDAVIT BY HOYT TAYLOR, A VICE PRESIDENT OF ZAPATA, DENIED
THAT THERE WERE ANY DISCUSSIONS BETWEEN ZAPATA AND UNTERWESER
CONCERNING THE FORUM CLAUSE OR THE QUESTION OF THE APPLICABLE LAW. 

/16/  SEE NN. 14-15, SUPRA. ZAPATA HAS DENIED SPECIFICALLY
DISCUSSING THE FORUM CLAUSE WITH UNTERWESER, BUT, AS JUDGE WISDOM
POINTED OUT, ZAPATA MADE NUMEROUS CHANGES IN THE CONTRACT WITHOUT
ALTERING THE FORUM CLAUSE, WHICH COULD HARDLY HAVE ESCAPED ITS
ATTENTION.  ZAPATA IS CLEARLY NOT UNSOPHISTICATED IN SUCH MATTERS.  THE
CONTRACT OF ITS WHOLLY OWNED SUBSIDIARY WITH AN ITALIAN CORPORATION
COVERING THE CONTEMPLATED DRILLING OPERATIONS IN THE ADRIATIC SEA
PROVIDED THAT ALL DISPUTES WERE TO BE SETTLED BY ARBITRATION IN LONDON
UNDER ENGLISH LAW, AND CONTAINED BROAD EXCULPATORY CLAUSES.  APP. 306
311. 

/17/  DIXILYN DRILLING CORP. V. CRESCENT TOWING & SALVAGE CO., 372
U.S. 697 (1963) (PER CURIAM), MERELY FOLLOWED BISSO AND DECLINED TO
SUBJECT ITS RULE GOVERNING TOWAGE CONTRACTS IN AMERICAN WATERS TO
"INDETERMINATE EXCEPTIONS" BASED ON DELICATE ANALYSIS OF THE FACTS OF
EACH CASE.  SEE 372 U.S.,AT 698 (HARLAN, J., CONCURRING). 

/18/  SEE, E.G., MODEL CHOICE OF FORUM ACT 3(3), SUPRA, N. 13,
COMMENT:  "ON RARE OCCASIONS, THE STATE OF THE FORUM MAY BE A
SUBSTANTIALLY MORE CONVENIENT PLACE FOR THE TRIAL OF A PARTICULAR
CONTROVERSY THAN THE .HOSEN STATE.  IF SO, THE PRESENT CLAUSE WOULD
PERMIT THE ACTION TO PROCEED.  IT CAN BE ASSUMED THAT THEY DID NOT HAVE
THE PARTICULAR CONTROVERSY IN MIND WHEN THEY MADE THE CHOICE-OF-FORM
AGREEMENT SINCE THEY WOULD NOT CONSCIOUSLY HAVE AGREED TO HAVE THE
ACTION BROUGHT IN AN INCONVENIENT PLACE." 

/19/  APPLYING THE PROPER BURDEN OF PROOF, JUSTICE KARMINSKI IN THE
HIGH COURT OF JUSTICE AT LONDON MADE THE FOLLOWING FINDINGS, WHICH
APPEAR TO HAVE SUBSTANTIAL SUPPORT IN THE RECORD: 

"(ZAPATA) POINTED OUT THAT IN THIS CASE THE BALANCE OF CONVENIENCE
SO FAR AS WITNESSES WERE CONCERNED POINTED IN THE DIRECTION OF HAVING
THE CASE HEARD AND TRIED IN THE UNITED STATES DISTRICT COURT AT TAMPA
IN FLORIDA BECAUSE THE PROBABILITY IS THAT MOST, BUT NOT NECESSARILY
ALL, OF THE WITNESSES WILL BE AMERICAN.  THE ANSWER, AS IT SEEMS TO ME,
IS THAT A SUBSTANTIAL MINORITY AT LEAST OF WITNESSES ARE LIKELY TO BE
GERMAN.  THE TUG WAS A GERMAN VESSEL AND WAS, AS FAR AS I KNOW, MANNED
BY A GERMAN CREW.  . . . WHERE THEY ALL ARE NOW OR ARE LIKELY TO BE
WHEN THIS MATTER IS LITIGATED I DO NOT KNOW, BECAUSE THE EXPERIENCE OF
THE ADMIRALTY COURT HERE STRONGLY POINTS OUT THAT MARITIME WITNESSES IN
THE COURSE OF THEIR DUTIES MOVE ABOUT FREELY.  THE HOMES OF THE GERMAN
CREW PRESUMABLY ARE IN GERMANY.  THERE IS PROBABLY A BALANCE OF NUMBERS
IN FAVOUR OF THE AMERICANS, BUT NOT, AS I AM INCLINED TO THINK, A VERY
HEAVY BALANCE."  APP. 212. 

IT SHOULD ALSO BE NOTED THAT IF THE EXCULPATORY CLAUSE IS ENFORCED
IN THE ENGLISH COURTS, MANY OF ZAPATA'S WITNESSES ON THE QUESTIONS OF
NEGLIGENCE AND DAMAGE MAY BE COMPLETELY UNNECESSARY. 

/20/  ZAPATA HAS SUGGESTED THAT UNTERWESER WAS NOT IN ANY WAY
REQUIRED TO FILE ITS "AFFIRMATIVE" LIMITATION COMPLAINT BECAUSE IT
COULD JUST AS EASILY HAVE PLEADED LIMITATION OF LIABILITY BY WAY OF
DEFENSE IN ZAPATA'S INITIAL ACTION, EITHER BEFORE OR AFTER THE SIX
MONTH PERIOD.  THAT COURSE OF ACTION WAS NOT WITHOUT RISK, HOWEVER,
THAT UNTERWESER'S ATTEMPT TO LIMIT ITS LIABILITY BY ANSWER WOULD BE
HELD INVALID.  SEE G. GILMORE & C. BLACK, ADMIRALTY 10-15 (1957).  WE
DO NOT BELIEVE THIS HAZARDOUS OPTION IN ANY WAY DEPRIVED UNTERWESER'S
LIMITATION COMPLAINT OF ITS ESSENTIALLY DEFENSIVE CHARACTER SO FAR AS
ZAPATA WAS CONCERNED. 

/21/  SEE 359 U.S.,AT 182. 

MR. JUSTICE WHITE, CONCURRING. 

I CONCUR IN THE OPINION AND JUDGMENT OF THE COURT EXCEPT INSOFAR AS
THE OPINION COMMENTS ON THE ISSUES WHICH ARE REMANDED TO THE DISTRICT
COURT.  IN MY VIEW THESE ISSUES ARE BEST LEFT FOR CONSIDERATION BY THE
DISTRICT COURT IN THE FIRST INSTANCE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

PETITIONER UNTERWESER CONTRACTED WITH RESPONDENT TO TOW RESPONDENT'S
DRILLING BARGE FROM LOUISIANA TO ITALY.  THE TOWAGE CONTRACT CONTAINED
A "FORUM SELECTION CLAUSE" PROVIDING THAT ANY DISPUTE MUST BE LITIGATED
BEFORE THE HIGH COURT OF JUSTICE IN LONDON, ENGLAND.  WHILE THE BARGE
WAS BEING TOWED IN THE GULF OF MEXICO A CASUALTY WAS SUFFERED.  THE TOW
MADE FOR TAMPA BAY, THE NEAREST PORT, WHERE RESPONDENT BROUGHT SUIT FOR
DAMAGES IN THE DISTRICT COURT. 

PETITIONERS SUED RESPONDENT IN THE HIGH COURT OF JUSTICE IN LONDON,
WHICH DENIED RESPONDENT'S MOTION TO DISMISS. 

PETITIONERS, HAVING PREVIOUSLY MOVED THE DISTRICT COURT TO DISMISS,
FILED A COMPLAINT IN THAT COURT SEEKING EXONERATION OR LIMITATION OF
LIABILITY AS PROVIDED IN 46 U.S.C. 185.  RESPONDENT FILED ITS CLAIM IN
THE LIMITATION PROCEEDINGS, ASSERTING THE SAME CAUSE OF ACTION AS IN
ITS ORIGINAL ACTION.  PETITIONERS THEN FILED OBJECTIONS TO RESPONDENT'S
CLAIM AND COUNTERCLAIMED AGAINST RESPONDENT, ALLEGING THE SAME CLAIMS
EMBODIED IN ITS ENGLISH ACTION, PLUS AN ADDITIONAL SALVAGE CLAIM. 

RESPONDENT MOVED FOR AN INJUNCTION AGAINST PETITIONERS' LITIGATING
FURTHER IN THE ENGLISH CASE AND THE DISTRICT COURT GRANTED THE
INJUNCTION PENDING DETERMINATION OF THE LIMITATION ACTION.  PETITIONERS
MOVED TO STAY THEIR OWN LIMITATION PROCEEDING PENDING A RESOLUTION OF
THE SUIT IN THE ENGLISH COURT.  THAT MOTION WAS DENIED.  296 F.SUPP. 
733.     THAT WAS THE POSTURE OF THE CASE AS IT REACHED THE COURT OF
APPEALS, PETITIONERS APPEALING FROM THE LAST TWO ORDERS.  THE COURT OF
APPEALS AFFIRMED.  428 F.2D 888, 446 F.2D 907. 

CHIEF JUSTICE TAFT IN HARTFORD ACCIDENT CO. V. SOUTHERN PACIFIC, 273
U.S. 207, 214, IN DISCUSSING THE LIMITATION OF LIABILITY ACT SAID THAT
"THE GREAT OBJECT OF THE STATUTE WAS TO ENCOURAGE SHIPBUILDING AND TO
INDUCE THE INVESTMENT OF MONEY IN THIS BRANCH OF INDUSTRY, BY LIMITING
THE VENTURE OF THOSE WHO BUILD THE SHIP TO THE LOSS OF THE SHIP ITSELF
OR HER FREIGHT THEN PENDING, IN CASES OF DAMAGE OR WRONG, HAPPENING
WITHOUT THE PRIVITY OR KNOWLEDGE OF THE SHIP OWNER, AND BY THE FAULT OR
NEGLECT OF THE MASTER OR OTHER PERSONS ON BOARD; THAT THE ORIGIN OF
THIS PROCEEDING FOR LIMITATION OF LIABILITY IS TO BE FOUND IN THE
GENERAL MARITIME LAW, DIFFERING FROM THE ENGLISH MARITIME LAW; AND THAT
SUCH A PROCEEDING IS ENTIRELY WITHIN THE CONSTITUTIONAL GRANT OF POWER
TO CONGRESS TO ESTABLISH COURTS OF ADMIRALTY AND MARITIME
JURISDICTION." 

CHIEF JUSTICE TAFT WENT ON TO DESCRIBE HOW THE OWNER OF A VESSEL
WHO, IN CASE THE VESSEL IS FOUND AT FAULT, MAY LIMIT HIS LIABILITY TO
THE VALUE OF THE VESSEL AND MAY BRING ALL CLAIMANTS "INTO CONCOURSE IN
THE PROCEEDING, BY MONITION" AND THEY MAY BE ENJOINED FROM SUING THE
OWNER AND THE VESSEL ON SUCH CLAIMS IN ANY OTHER COURT.  ID., AT 215. 

CHIEF JUSTICE TAFT CONCLUDED:  "(THIS COURT HAS BY ITS RULES AND
DECISIONS GIVEN THE STATUTE A VERY BROAD AND EQUITABLE CONSTRUCTION FOR
THE PURPOSE OF CARRYING OUT ITS PRUPOSE AND FOR FACILITATING A
SETTLEMENT OF THE WHOLE CONTROVERSY OVER SUCH LOSSES AS ARE
COMPREHENDED WITHIN IT, AND THAT ALL THE EASE WITH WHICH RIGHTS CAN BE
ADJUSTED IN EQUITY IS INTENDED TO BE GIVEN TO THE PROCEEDING.  IT IS
THE ADMINISTRATION OF EQUITY IN AN ADMIRALTY COURT.  . . . THE
PROCEEDING PARTAKES IN A WAY OF THE FEATURES OF A BILL TO ENJOIN A
MULTIPLICITY OF SUITS, A BILL IN THE NATURE OF AN INTERPLEADER, AND A
CREDITOR'S BILL.  IT LOOKS TO A COMPLETE AND JUST DISPOSITION OF A MANY
CORNERED CONTROVERSY, AND IS APPLICABLE TO PROCEEDINGS IN REM AGAINST
THE SHIP AS WELL AS TO PROCEEDINGS IN PERSONAM AGAINST THE OWNER, THE
LIMITATION EXTENDING TO THE OWNER'S PROPERTY AS WELL AS TO HIS
PERSON."  ID., AT 215-216. 

THE LIMITATION COURT IS A COURT OF EQUITY AND TRADITIONALLY AN
EQUITY COURT MAY ENJOIN LITIGATION IN ANOTHER COURT WHERE EQUITABLE
CONSIDERATIONS INDICATE THAT THE OTHER LITIGATION MIGHT PREJUDICE THE
PROCEEDINGS IN THE LIMITATION COURT.  PETITIONERS' PETITION FOR
LIMITATION SUBJECTS THEM TO THE FULL EQUITABLE POWERS OF THE LIMITATION
COURT. 

RESPONDENT IS A CITIZEN OF THIS COUNTRY.  MOREOVER, IF IT WERE
REMITTED TO THE ENGLISH COURT, ITS SUBSTANTIVE RIGHTS WOULD BE
ADVERSELY AFFECTED.  EXCULPATORY PROVISIONS IN THE TOWAGE CONTROL
PROVIDE (1) THAT PETITIONERS, THE MASTERS AND THE CREWS "ARE NOT
RESPONSIBLE FOR DEFAULTS AND/OR ERRORS IN THE NAVIGATION OF THE TOW"
AND (2) THAT "(DAMAGES SUFFERED BY THE TOWED OBJECT ARE IN ANY CASE FOR
ACCOUNT OF ITS OWNERS." 

UNDER OUR DECISION IN DIXILYN DRILLING CORP V. CRESCENT TOWING &
SALVAGE CO., 372 U.S. 697, 698, "A CONTRACT WHICH EXEMPTS THE TOWER
FROM LIABILITY FOR ITS OWN NEGLIGENCE" IS NOT ENFORCEABLE, THOUGH THERE
IS EVIDENCE IN THE PRESENT RECORD THAT IT IS ENFORCEABLE IN ENGLAND. 
THAT POLICY WAS FIRST ANNOUNCED IN BISSO V. INLAND WATERWAYS CORP., 349
U.S. 85; AND FOLLOWED IN BOSTON METALS CO. V. THE WINDING GULF, 349
U.S. 122; DIXILYN, SUPRA; GRAY V. JOHANSSON, 287 F.2D 852 (CA 5);
CALIFORNIA CO. V. JUMONVILLE, 327 F.2D 988 (CA 5); AMERICAN S.S. CO. V.
GREAT LAKES TOWING CO., 333 F.2D 426 (CA 7); D. R. KINCAID, LTD. V.
TRANS-PACIFIC TOWING, INC., 367 F.2D 857 (CA 9); A. L. MECHLING BARGE
LINES, INC. V. DERBY CO., 399 F.2D 304 (CA 5).  CF. UNITED STATES V.
SECKINGER, 397 U.S. 203.  ALTHOUGH THE CASUALTY OCCURRED ON THE HIGH
SEAS, THE BISSO DOCTRINE IS NONETHELESS APPLICABLE.  THE SCOTLAND, 105
U.S. 24; THE BELGENLAND, 114 U.S. 355; THE GYLFE V. THE TRUJILLO, 209
F.2D 386 (CA 2). 

MOREOVER, THE CASUALTY OCCURRED CLOSE TO THE DISTRICT COURT, A
NUMBER OF POTENTIAL WITNESSES, INCLUDING RESPONDENT'S CREWMEN, RESIDE
IN THAT AREA, AND THE INSPECTION AND REPAIR WORK WERE DONE THERE.  THE
TESTIMONY OF THE TOWER'S CREWMEN, RESIDING IN GERMANY, IS ALREADY
AVAILABLE BY WAY OF DEPOSITIONS TAKEN IN THE PROCEEDINGS. 

ALL IN ALL, THE DISTRICT COURT JUDGE EXERCISED HIS DISCRETION WISELY
IN ENJOINING PETITIONERS FROM PURSUING THE LITIGATION IN ENGLAND.  /1/ 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  IT IS SAID THAT BECAUSE THESE PARTIES SPECIFICALLY AGREED TO
LITIGATE THEIR DISPUTES BEFORE THE LONDON COURT OF JUSTICE, THE
DISTRICT COURT, ABSENT "UNREASONABLE" CIRCUMSTANCES, SHOULD HAVE
HONORED THAT CHOICE BY DECLINING TO EXERCISE ITS JURISDICTION.  THE
FORUM-SELECTION CLAUSE, HOWEVER, IS PART AND PARCEL OF THE EXCULPATORY
PROVISION IN THE TOWING AGREEMENT WHICH, AS MENTIONED IN THE TEXT, IS
NOT ENFORCEABLE IN AMERICAN COURTS.  FOR ONLY BY AVOIDING LITIGATION IN
THE UNITED STATES COULD PETITIONERS HOPE TO EVADE THE BISSO DOCTRINE. 

JUDGES IN THIS COUNTRY HAVE TRADITIONALLY BEEN HOSTILE TO ATTEMPTS
TO CIRCUMVENT THE PUBLIC POLICY AGAINST EXCULPATORY AGREEMENTS.  FOR
EXAMPLE, CLAUSES SPECIFYING THAT THE LAW OF A FOREIGN PLACE (WHICH
FAVORS SUCH RELEASES) SHOULD CONTROL HAVE REGULARLY BEEN IGNORED. 
THUS, IN THE KENSINGTON, 183 U.S. 263, 276, THE COURT HELD VOID AN
EXEMPTION FROM LIABILITY DESPITE THE FACT THAT THE CONTRACT PROVIDED
THAT IT SHOULD BE CONSTRUED UNDER BELGIAN LAW WHICH WAS MORE TOLERANT. 
AND SEE E. GERLI & CO. V. CUNARD S.S. CO., 48 F.2D 115, 117 (CA 2);
OCEANIC STEAM NAV. CO. V. CORCORAN, 9 F.2D 724, 731 (CA 2); IN RE LEA
FABRICS, INC., 226 F.SUPP.  232, 237 (NJ); F. A. STRAUS & CO. V.
CANADIAN P.R. CO., 254 N.Y. 407, 173 N.E. 564; SIEGELMAN V. CUNARD
WHITE STAR, 221 F.2D 189, 199 (CA 2) (FRANK, J., DISSENTING).  6A A.
CORBIN ON CONTRACTS 1446 (1962). 

THE INSTANT STRATAGEM OF SPECIFYING A FOREIGN FORUM IS ESSENTIALLY
THE SAME AS INVOKING A FOREIGN LAW OF CONSTRUCTION EXCEPT THAT THE
PRESENT CIRCUMVENTION ALSO REQUIRES THE AMERICAN PARTY TO TRAVEL ACROSS
AN OCEAN TO SEEK RELIEF.  UNLESS WE ARE PREPARED TO OVERRULE BISSO WE
SHOULD NOT COUNTENANCE DEVICES DESIGNED SOLELY FOR THE PURPOSE OF
EVADING ITS PROHIBITION. 

IT IS ARGUED, HOWEVER, THAT ONE OF THE RATIONALES OF THE BISSO
DOCTRINE, "TO PROTECT THOSE IN NEED OF GOODS OR SERVICES FROM BEING
OVERREACHED BY OTHERS WHO HAVE POWER TO DRIVE HARD BARGAINS" (349
U.S.,AT 91), DOES NOT APPLY HERE BECAUSE THESE PARTIES MAY HAVE BEEN OF
EQUAL BARGAINING STATURE.  YET WE HAVE OFTEN ADOPTED PROPHYLACTIC RULES
RATHER THAN ATTEMPT TO SORT THE CORE CASES FROM THE MARGINAL ONES.  IN
ANY EVENT, THE OTHER OBJECTIVE OF THE BISSO DOCTRINE, TO "DISCOURAGE
NEGLIGENCE BY MAKING WRONGDOERS PAY DAMAGES" (IBID.) APPLIES HERE AND
IN EVERY CASE REGARDLESS OF THE RELATIVE BARGAINING STRENGTHS OF THE
PARTIES. 

DAVID C. G. KERR ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WAS JACK C. RINARD. 

JAMES K. NANCE ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS DEWEY R. VILLAREAL, JR.
..END :












ARGERSINGER V. HAMLIN, 407 U.S. 25 


       ARGERSINGER V. HAMLIN, SHERIFF

        CERTIORARI TO THE SUPREME COURT OF FLORIDA

        NO. 70-5015.  ARGUED DECEMBER 6, 1971-- REARGUED FEBRUARY

           28, 1972-- DECIDED JUNE 12, 1972 


THE RIGHT OF AN INDIGENT DEFENDANT IN A CRIMINAL TRIAL TO THE
ASSISTANCE OF COUNSEL, WHICH IS GUARANTEED BY THE SIXTH AMENDMENT AS
MADE APPLICABLE TO THE STATES BY THE FOURTEENTH, GIDEON V. WAINWRIGHT,
372 U.S. 335, IS NOT GOVERNED BY THE CLASSIFICATION OF THE OFFENSE OR
BY WHETHER OR NOT A JURY TRIAL IS REQUIRED.  NO ACCUSED MAY BE DEPRIVED
OF HIS LIBERTY AS THE RESULT OF ANY CRIMINAL PROSECUTION, WHETHER
FELONY OR MISDEMEANOR, IN WHICH HE WAS DENIED THE ASSISTANCE OF
COUNSEL.  IN THIS CASE, THE SUPREME COURT OF FLORIDA ERRED IN HOLDING
THAT PETITIONER, AN INDIGENT WHO WAS TRIED FOR AN OFFENSE PUNISHABLE BY
IMPRISONMENT UP TO SIX MONTHS, A $1,000 FINE, OR BOTH, AND GIVEN A 90
DAY JAIL SENTENCE, HAD NO RIGHT TO COURT-APPOINTED COUNSEL, ON THE
GROUND THAT THE RIGHT EXTENDS ONLY TO TRIALS "FOR NON-PETTY OFFENSES
PUNISHABLE BY MORE THAN SIX MONTHS IMPRISONMENT."  PP. 27-40. 

236 SO.2D 442, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT IN WHICH BRENNAN,
STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  BRENNAN, J.,
FILED A CONCURRING OPINION, IN WHICH DOUGLAS AND STEWART, JJ., JOINED,
POST, P. 40.  BURGER, C.J., FILED AN OPINION CONCURRING IN THE RESULT,
POST, P. 41.  POWELL, J., FILED AN OPINION CONCURRING IN THE RESULT, IN
WHICH REHNQUIST, J., JOINED, POST, P. 44. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AN INDIGENT, WAS CHARGED IN FLORIDA WITH CARRYING A
CONCEALED WEAPON, AN OFFENSE PUNISHABLE BY IMPRISONMENT UP TO SIX
MONTHS, A $1,000 FINE, OR BOTH.  THE TRIAL WAS TO A JUDGE, AND
PETITIONER WAS UNREPRESENTED BY COUNSEL.  HE WAS SENTENCED TO SERVE 90
DAYS IN JAIL, AND BROUGHT THIS HABEAS CORPUS ACTION IN THE FLORIDA
SUPREME COURT, ALLEGING THAT, BEING DEPRIVED OF HIS RIGHT TO COUNSEL,
HE WAS UNABLE AS AN INDIGENT LAYMAN PROPERLY TO RAISE AND PRESENT TO
THE TRIAL COURT GOOD AND SUFFICIENT DEFENSES TO THE CHARGE FOR WHICH HE
STANDS CONVICTED.  THE FLORIDA SUPREME COURT BY A FOUR-TO-THREE
DECISION, IN RULING ON THE RIGHT TO COUNSEL, FOLLOWED THE LINE WE
MARKED OUT IN DUNCAN V. LOUISIANA, 391 U.S. 145, 159, AS RESPECTS THE
RIGHT TO TRIAL BY JURY AND HELD THAT THE RIGHT TO COURT-APPOINTED
COUNSEL EXTENDS ONLY TO TRIALS "FOR NON-PETTY OFFENSES PUNISHABLE BY
MORE THAN SIX MONTHS IMPRISONMENT."  236 SO.2D 442, 443.  /1/ 

THE CASE IS HERE ON A PETITION FOR CERTIORARI, WHICH WE GRANTED.  401
U.S. 908.  WE REVERSE. 

THE SIXTH AMENDMENT, WHICH IN ENUMERATED SITUATIONS HAS BEEN MADE
APPLICABLE TO THE STATES BY REASON OF THE FOURTEENTH AMENDMENT (SEE
DUNCAN V. LOUISIANA, SUPRA; WASHINGTON V. TEXAS, 388 U.S. 14; KLOPFER
V. NORTH CAROLINA, 386 U.S. 213; POINTER V. TEXAS, 380 U.S. 400; GIDEON
V. WAINWRIGHT, 372 U.S. 335; AND IN RE OLIVER, 333 U.S. 257), PROVIDES
SPECIFIED STANDARDS FOR "ALL CRIMINAL PROSECUTIONS." 

ONE IS THE REQUIREMENT OF A "PUBLIC TRIAL."  IN RE OLIVER, SUPRA,
HELD THAT THE RIGHT TO A "PUBLIC TRIAL" WAS APPLICABLE TO A STATE
PROCEEDING EVEN THOUGH ONLY A 60-DAY SENTENCE WAS INVOLVED.  333
U.S.,AT 272. 

ANOTHER GUARANTEE IS THE RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF THE ACCUSATION.  STILL ANOTHER, THE RIGHT OF CONFRONTATION. 
POINTER V. TEXAS, SUPRA.  AND ANOTHER, COMPULSORY PROCESS FOR OBTAINING
WITNESSES IN ONE'S FAVOR.  WASHINGTON V. TEXAS, SUPRA.  WE HAVE NEVER
LIMITED THESE RIGHTS TO FELONIES OR TO LESSER BUT SERIOUS OFFENSES. 

IN WASHINGTON V. TEXAS, SUPRA, WE SAID, "WE HAVE HELD THAT DUE
PROCESS REQUIRES THAT THE ACCUSED HAVE THE ASSISTANCE OF COUNSEL FOR
HIS DEFENSE, THAT HE BE CONFRONTED WITH THE WITNESSES AGAINST HIM, AND
THAT HE HAVE THE RIGHT TO A SPEEDY AND PUBLIC TRIAL."  388 U.S.,AT 18. 
RESPECTING THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, THE RIGHT TO BE
INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION, THE RIGHT TO
CONFRONT AND CROSS-EXAMINE WITNESSES, THE RIGHT TO COMPULSORY PROCESS
FOR OBTAINING WITNESSES, IT WAS RECENTLY STATED, "IT IS SIMPLY NOT
ARGUABLE, NOR HAS ANY COURT EVER HELD, THAT THE TRIAL OF A PETTY
OFFENSE MAY BE HELD IN SECRET, OR WITHOUT NOTICE TO THE ACCUSED OF THE
CHARGES, OR THAT IN SUCH CASES THE DEFENDANT HAS NO RIGHT TO CONFRONT
HIS ACCUSERS OR TO COMPEL THE ATTENDANCE OF WITNESSES IN HIS OWN
BEHALF."  JUNKER, THE RIGHT TO COUNSEL IN MISDEMEANOR CASES, 43
WASH.L.REV.  685, 705 (1968). 

DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617, ILLUSTRATES THE
POINT.  THERE, THE OFFENSE WAS ENGAGING WITHOUT A LICENSE IN THE
BUSINESS OF DEALING IN SECOND-HAND PROPERTY, AN OFFENSE PUNISHABLE BY A
FINE OF $300 OR IMPRISONMENT FOR NOT MORE THAN 90 DAYS.  THE COURT HELD
THAT THE OFFENSE WAS A "PETTY" ONE AND COULD BE TRIED WITHOUT A JURY. 
BUT THE CONFICTION WAS REVERSED AND A NEW TRIAL ORDERED, BECAUSE THE
TRIAL COURT HAD PREJUDICIALLY RESTRICTED THE RIGHT OF CROSS
EXAMINATION, A RIGHT GUARANTEED BY THE SIXTH AMENDMENT. 

THE RIGHT TO TRIAL BY JURY, ALSO GUARANTEED BY THE SIXTH AMENDMENT
BY REASON OF THE FOURTEENTH, WAS LIMITED BY DUNCAN V. LOUISIANA, SUPRA,
TO TRIALS WHERE THE POTENTIAL PUNISHMENT WAS IMPRISONMENT FOR SIX
MONTHS OR MORE.  BUT, AS THE VARIOUS OPINIONS IN BALDWIN V. NEW YORK,
399 U.S. 66, MAKE PLAIN, THE RIGHT TO TRIAL BY JURY HAS A DIFFERENT
GENALOGY AND IS BRIGADED WITH A SYSTEM OF TRIAL TO A JUDGE ALONE.  AS
STATED IN DUNCAN: 

"PROVIDING AN ACCUSED WITH THE RIGHT TO BE TRIED BY A JURY OF HIS
PEERS GAVE HIM AN INESTIMABLE SAFEGUARD AGAINST THE CORRUPT OR
OVERZEALOUS PROSECUTOR AND AGAINST THE COMPLIANT, BIASED, OR ECCENTRIC
JUDGE.  IF THE DEFENDANT PREFERRED THE COMMON-SENSE JUDGMENT OF A JURY
TO THE MORE TUTORED BUT PERHAPS LESS SYMPATHETIC REACTION OF THE SINGLE
JUDGE, HE WAS TO HAVE IT.  BEYOND THIS, THE JURY TRIAL PROVISIONS IN
THE FEDERAL AND STATE CONSTITUTIONS REFLECT A FUNDAMENTAL DECISION
ABOUT THE EXERCISE OF OFFICIAL POWER-- A RELUCTANCE TO ENTRUST PLENARY
POWERS OVER THE LIFE AND LIBERTY OF THE CITIZEN TO ONE JUDGE OR TO A
GROUP OF JUDGES.  FEAR OF UNCHECKED POWER, SO TYPICAL OF OUR STATE AND
FEDERAL GOVERNMENTS IN OTHER RESPECTS, FOUND EXPRESSION IN THE CRIMINAL
LAW IN THIS INSISTENCE UPON COMMUNITY PARTICIPATION IN THE
DETERMINATION OF GUILT OR INNOCENCE.  THE DEEP COMMITMENT OF THE NATION
TO THE RIGHT OF JURY TRIAL IN SERIOUS CRIMINAL CASES AS A DEFENSE
AGAINST ARBITRARY LAW ENFORCEMENT QUALIFIES FOR PROTECTION UNDER THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND MUST THEREFORE BE
RESPECTED BY THE STATES."  391 U.S.,AT 156. 

WHILE THERE IS HISTORICAL SUPPORT FOR LIMITING THE "DEEP COMMITMENT"
TO TRIAL BY JURY TO "SERIOUS CRIMINAL CASES,"  /2/  THERE IS NO SUCH
SUPPORT FOR A SIMILAR LIMITATION ON THE RIGHT TO ASSISTANCE OF
COUNSEL: 

"ORIGINALLY, IN ENGLAND, A PERSON CHARGED WITH TREASON OR FELONY WAS
DENIED THE AID OF COUNSEL, EXCEPT IN RESPECT OF LEGAL QUESTIONS WHICH
THE ACCUSED HIMSELF MIGHT SUGGEST.  AT THE SAME TIME PARTIES IN CIVIL
CASES AND PERSONS ACCUSED OF MISDEMEANORS WERE ENTITLED TO THE FULL
ASSISTANCE OF COUNSEL.  . . .

        .          .          .     . 

     "(IT) APPEARS THAT IN AT LEAST TWELVE OF THE THIRTEEN COLONIES

  THE RULE OF THE ENGLISH COMMON LAW, IN THE RESPECT NOW UNDER

  CONSIDERATION, HAD BEEN DEFINITELY REJECTED AND THE RIGHT TO

  COUNSEL FULLY RECOGNIZED IN ALL CRIMINAL PROSECUTIONS, SAVE THAT

  IN ONE OR TWO INSTANCES THE RIGHT WAS LIMITED TO CAPITAL OFFENSES

  OR TO THE MORE SERIOUS CRIMES.  . . . " POWELL V. ALABAMA, 287

  U.S. 45, 60, 64-65. 

THE SIXTH AMENDMENT THUS EXTENDED THE RIGHT TO COUNSEL BEYOND ITS
COMMON-LAW DIMENSIONS.  BUT THERE IS NOTHING IN THE LANGUAGE OF THE
AMENDMENT, ITS HISTORY, OR IN THE DECISIONS OF THIS COURT, TO INDICATE
THAT IT WAS INTENDED TO EMBODY A RETRACTION OF THE RIGHT IN PETTY
OFFENSES WHEREIN THE COMMON LAW PREVIOUSLY DID REQUIRE THAT COUNSEL BE
PROVIDED.  SEE JAMES V. HEADLEY, 410 F.2D 325, 331-332, N. 9. 

WE REJECT, THEREFORE, THE PREMISE THAT SINCE PROSECUTIONS FOR CRIMES
PUNISHABLE BY IMPRISONMENT FOR LESS THAN SIX MONTHS MAY BE TRIED
WITHOUT A JURY, THEY MAY ALSO BE TRIED WITHOUT A LAWYER. 

THE ASSISTANCE OF COUNSEL IS OFTEN A REQUISITE TO THE VERY EXISTENCE
OF A FAIR TRIAL.  THE COURT IN POWELL V. ALABAMA, SUPRA, AT 68-69-- A
CAPITAL CASE-- SAID: 

"THE RIGHT TO BE HEARD WOULD BE, IN MANY CASES, OF LITTLE AVAIL IF
IT DID NOT COMPREHEND THE RIGHT TO BE HEARD BY COUNSEL.  EVEN THE
INTELLIGENT AND EDUCATED LAYMAN HAS SMALL AND SOMETIMES NO SKILL IN THE
SCIENCE OF LAW.  IF CHARGED WITH CRIME, HE IS INCAPABLE, GENERALLY, OF
DETERMINING FOR HIMSELF WHETHER THE INDICTMENT IS GOOD OR BAD.  HE IS
UNFAMILIAR WITH THE RULES OF EVIDENCE.  LEFT WITHOUT THE AID OF COUNSEL
HE MAY BE PUT ON TRIAL WITHOUT A PROPER CHARGE, AND CONVICTED UPON
INCOMPETENT EVIDENCE, OR EVIDENCE IRRELEVANT TO THE ISSUE OR OTHERWISE
INADMISSIBLE.  HE LACKS BOTH THE SKILL AND KNOWLEDGE ADEQUATELY TO
PREPARE HIS DEFENSE, EVEN THOUGH HE HAVE A PERFECT ONE.  HE REQUIRES
THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE PROCEEDINGS AGAINST
HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE FACES THE DANGER OF
CONVICTION BECAUSE HE DOES NOT KNOW HOW TO ESTABLISH HIS INNOCENCE.  IF
THAT BE TRUE OF MEN OF INTELLIGENCE, HOW MUCH MORE TRUE IS IT OF THE
IGNORANT AND ILLITERATE, OR THOSE OF FEEBLE INTELLECT." 

IN GIDEON V. WAINWRIGHT, SUPRA (OVERRULING BETTS V. BRADY, 316 U.S.
455), WE DEALT WITH A FELONY TRIAL.  BUT WE DID NOT SO LIMIT THE NEED
OF THE ACCUSED FOR A LAWYER.  WE SAID: 

"(IN OUR ADVERSARY SYSTEM OF CRIMINAL JUSTICE, ANY PERSON HALED INTO
COURT, WHO IS TOO POOR TO HIRE A LAWYER, CANNOT BE ASSURED A FAIR TRIAL
UNLESS COUNSEL IS PROVIDED FOR HIM.  THIS SEEMS TO US TO BE AN OBVIOUS
TRUTH.  GOVERNMENTS, BOTH STATE AND FEDERAL, QUITE PROPERLY SPEND VAST
SUMS OF MONEY TO ESTABLISH MACHINERY TO TRY DEFENDANTS ACCUSED OF
CRIME.  LAWYERS TO PROSECUTE ARE EVERYWHERE DEEMED ESSENTIAL TO PROTECT
THE PUBLIC'S INTEREST IN AN ORDERLY SOCIETY.  SIMILARLY, THERE ARE FEW
DEFENDANTS CHARGED WITH CRIME, FEW INDEED, WHO FAIL TO HIRE THE BEST
LAWYERS THEY CAN GET TO PREPARE AND PRESENT THEIR DEFENSES.  THAT
GOVERNMENT HIRES LAWYERS TO PROSECUTE AND DEFENDANTS WHO HAVE THE MONEY
HIRE LAWYERS TO DEFEND ARE THE STRONGEST INDICATIONS OF THE WIDESPREAD
BELIEF THAT LAWYERS IN CRIMINAL COURTS ARE NECESSITIES, NOT LUXURIES. 
THE RIGHT OF ONE CHARGED WITH CRIME TO COUNSEL MAY NOT BE DEEMED
FUNDAMENTAL AND ESSENTIAL TO FAIR TRIALS IN SOME COUNTRIES, BUT IT IS
IN OURS.  FROM THE VERY BEGINNING, OUR STATE AND NATIONAL CONSTITUTIONS
AND LAWS HAVE LAID GREAT EMPHASIS ON PROCEDURAL AND SUBSTANTIVE
SAFEGUARDS DESIGNED TO ASSURE FAIR TRIALS BEFORE IMPARTIAL TRIBUNALS IN
WHICH EVERY DEFENDANT STANDS EQUAL BEFORE THE LAW.  THIS NOBLE IDEAL
CANNOT BE REALIZED IF THE POOR MAN CHARGED WITH CRIME HAS TO FACE HIS
ACCUSERS WITHOUT A LAWYER TO ASSIST HIM."  372 U.S.,AT 344. 

BOTH POWELL AND GIDEON INVOLVED FELONIES.  BUT THEIR RATIONALE HAS
RELEVANCE TO ANY CRIMINAL TRIAL, WHERE AN ACCUSED IS DEPRIVED OF HIS
LIBERTY.  POWELL AND GIDEON SUGGEST THAT THERE ARE CERTAIN FUNDAMENTAL
RIGHTS APPLICABLE TO ALL SUCH CRIMINAL PROSECUTIONS, EVEN THOSE, SUCH
AS IN RE OLIVER, SUPRA, WHERE THE PENALTY IS 60 DAYS' IMPRISONMENT: 

"A PERSON'S RIGHT TO REASONABLE NOTICE OF A CHARGE AGAINST HIM, AND
AN OPPORTUNITY TO BE HEARD IN HIS DEFENSE-- A RIGHT TO HIS DAY IN COURT
- ARE BASIC IN OUR SYSTEM OF JURISPRUDENCE; AND THESE RIGHTS INCLUDE,
AS A MINIMUM, A RIGHT TO EXAMINE THE WITNESSES AGAINST HIM, TO OFFER
TESTIMONY, AND TO BE REPRESENTED BY COUNSEL."  333 U.S.,AT 273. 

THE REQUIREMENT OF COUNSEL MAY WELL BE NECESSARY FOR A FAIR TRIAL
EVEN IN A PETTY-OFFENSE PROSECUTION.  WE ARE BY NO MEANS CONVINCED THAT
LEGAL AND CONSTITUTIONAL QUESTIONS INVOLVED IN A CASE THAT ACTUALLY
LEADS TO IMPRISONMENT EVEN FOR A BRIEF PERIOD ARE ANY LESS COMPLEX THAN
WHEN A PERSON CAN BE SENT OFF FOR SIX MONTHS OR MORE.  SEE, E.G.,
POWELL V. TEXAS, 392 U.S. 514; THOMPSON V. LOUISVILLE, 362 U.S. 199;
SHUTTLESWORTH V. BIRMINGHAM, 382 U.S. 87. 

THE TRIAL OF VAGRANCY CASES IS ILLUSTRATIVE.  WHILE ONLY BRIEF
SENTENCES OF IMPRISONMENT MAY BE IMPOSED, THE CASES OFTEN BRISTLE WITH
THORNY CONSTITUTIONAL QUESTIONS.  SEE PAPACHRISTOU V. JACKSONVILLE, 405
U.S. 156. 

IN RE GAULT, 387 U.S. 1, DEALT WITH JUVENILE DELINQUENCY AND AN
OFFENSE WHICH, IF COMMITTED BY AN ADULT, WOULD HAVE CARRIED A FINE OF
$5 TO $50 OR IMPRISONMENT IN JAIL FOR NOT MORE THAN TWO MONTHS (ID., AT
29), BUT WHICH WHEN COMMITTED BY A JUVENILE MIGHT LEAD TO HIS DETENTION
IN A STATE INSTITUTION UNTIL HE REACHED THE AGE OF 21.  ID., AT 36-37. 
WE SAID (ID., AT 36) THAT "(THE JUVENILE NEEDS THE ASSISTANCE OF
COUNSEL TO COPE WITH PROBLEMS OF LAW, TO MAKE SKILLED INQUIRY INTO THE
FACTS, TO INSIST UPON REGULARITY OF THE PROCEEDINGS, AND TO ASCERTAIN
WHETHER HE HAS A DEFENSE AND TO PREPARE AND SUBMIT IT.  THE CHILD
'REQUIRES THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE PROCEEDINGS
AGAINST HIM,'" CITING POWELL V. ALABAMA, 287 U.S.,AT 69.  THE PREMISE
OF GUALT IS THAT EVEN IN PROSECUTIONS FOR OFFENSES LESS SERIOUS THAN
FELONIES, A FAIR TRIAL MAY REQUIRE THE PRESENCE OF A LAWYER. 

BEYOND THE PROBLEM OF TRIALS AND APPEALS IS THAT OF THE GUILTY PLEA,
A PROBLEM WHICH LOOMS LARGE IN MISDEMEANOR AS WELL AS IN FELONY CASES. 
COUNSEL IS NEEDED SO THAT THE ACCUSED MAY KNOW PRECISELY WHAT HE IS
DOING, SO THAT HE IS FULLY AWARE OF THE PROSPECT OF GOING TO JAIL OR
PRISON, AND SO THAT HE IS TREATED FAIRLY BY THE PROSECUTION. 

IN ADDITION, THE VOLUME OF MISDEMEANOR CASES, /4/  FAR GREATER IN
NUMBER THAN FELONY PROSECUTIONS, MAY CREATE AN OBSESSION FOR SPEEDY
DISPOSITIONS, REGARDLESS OF THE FAIRNESS OF THE RESULT.  THE REPORT BY
THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 128(1967), STATES: 

"FOR EXAMPLE, UNTIL LEGISLATION LAST YEAR INCREASED THE NUMBER OF
JUDGES, THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS HAD FOUR
JUDGES TO PROCESS THE PRELIMINARY STAGES OF MORE THAN 1,500 FELONY
CASES, 7,500 SERIOUS MISDEMEANOR CASES, AND 38,000 PETTY OFFENSES AND
AN EQUAL NUMBER OF TRAFFIC OFFENSES PER YEAR.  AN INEVITABLE
CONSEQUENCE OF VOLUME THAT LARGE IS THE ALMOST TOTAL PREOCCUPATION IN
SUCH A COURT WITH THE MOVEMENT OF CASES.  THE CALENDAR IS LONG, SPEED
OFTEN IS SUBSTITUTED FOR CARE, AND CASUALLY ARRANGED OUT-OF-COURT
COMPROMISE TOO OFTEN IS SUBSTITUTED FOR ADJUDICATION.  INADEQUATE
ATTENTION TENDS TO BE GIVEN TO THE INDIVIDUAL DEFENDANT, WHETHER IN
PROTECTING HIS RIGHTS, SIFTING THE FACTS AT TRIAL, DECIDING THE SOCIAL
RISK HE PRESENTS, OR DETERMINING HOW TO DEAL WITH HIM AFTER
CONVICTION.  THE FREQUENT RESULT IS FUTILITY AND FAILURE.  AS DEAN
EDWARD BARRETT RECENTLY OBSERVED: 

     "'WHEREVER THE VISITOR LOOKS AT THE SYSTEM, HE FINDS GREAT

  NUMBERS OF DEFENDANTS BEING PROCESSED BY HARASSED AND OVERWORKED

  OFFICIALS.  POLICE HAVE MORE CASES THAN THEY CAN INVESTIGATE. 

  PROSECUTORS WALK INTO COURTROOMS TO TRY SIMPLE CASES AS THEY TAKE

THEIR INITIAL LOOKS AT THE FILES.  DEFENSE LAWYERS APPEAR HAVING

  HAD NO MORE THAN TIME FOR HASTY CONVERSATIONS WITH THEIR

  CLIENTS.  JUDGES FACE LONG CALENDARS WITH THE CERTAIN KNOWLEDGE

  THAT THEIR CALENDARS TOMORROW AND THE NEXT DAY WILL BE, IF

  ANYTHING, LONGER, AND SO THERE IS NO CHOICE BUT TO DISPOSE OF THE

  CASES. 

     "'SUDDENLY IT BECOMES CLEAR THAT FOR MOST DEFENDANTS IN THE

  CRIMINAL PROCESS, THERE IS SCANT REGARD FOR THEM AS INDIVIDUALS. 

THEY ARE NUMBERS ON DOCKETS, FACELESS ONES TO BE PROCESSED AND

  SENT ON THEIR WAY.  THE GAP BETWEEN THE THEORY AND THE REALITY IS

  ENORMOUS. 

     "'VERY LITTLE SUCH OBSERVATION OF THE ADMINISTRATION OF

  CRIMINAL JUSTICE IN OPERATION IS REQUIRED TO REACH THE CONCLUSION

  THAT IT SUFFERS FROM BASIC ILLS.'" 

THAT PICTURE IS SEEN IN ALMOST EVERY REPORT.  "THE MISDEMEANOR TRIAL
IS CHARACTERIZED BY INSUFFICIENT AND FREQUENTLY IRRESPONSIBLE
PREPARATION ON THE PART OF THE DEFENSE, THE PROSECUTION, AND THE
COURT.  EVERYTHING IS RUSH, RUSH."  HELLERSTEIN, THE IMPORTANCE OF THE
MISDEMEANOR CASE ON TRIAL AND APPEAL, 28 THE LEGAL AID BRIEF CASE 151,
152(1970). 

THERE IS EVIDENCE OF THE PREJUDICE WHICH RESULTS TO MISDEMEANOR
DEFENDANTS FROM THIS "ASSEMBLY-LINE JUSTICE."  ONE STUDY CONCLUDED THAT
"(MISDEMEANANTS REPRESENTED BY ATTORNEYS ARE FIVE TIMES AS LIKELY TO
EMERGE FROM POLICE COURT WITH ALL CHARGES DISMISSED AS ARE DEFENDANTS
WHO FACE SIMILAR CHARGES WITHOUT COUNSEL."  AMERICAN CIVIL LIBERTIES
UNION, LEGAL COUNSEL FOR MISDEMEANANTS, PRELIMINARY REPORT 1(1970). 

WE MUST CONCLUDE, THEREFORE, THAT THE PROBLEMS ASSOCIATED WITH
MISDEMEANOR AND PETTY /5/  OFFENSES OFTEN REQUIRE THE PRESENCE OF
COUNSEL TO INSURE THE ACCUSED A FAIR TRIAL.  MR. JUSTICE POWELL
SUGGESTS THAT THESE PROBLEMS ARE RAISED EVEN IN SITUATIONS WHERE THERE
IS NO PROSPECT OF IMPRISONMENT.  POST, AT 48.  WE NEED NOT CONSIDER THE
REQUIREMENTS OF THE SIXTH AMENDMENT AS REGARDS THE RIGHT TO COUNSEL
WHERE LOSS OF LIBERTY IS NOT INVOLVED, HOWEVER, FOR HERE PETITIONER WAS
IN FACT SENTENCED TO JAIL.  AND, AS WE SAID IN BALDWIN V. NEW YORK, 399
U.S.,AT 73, "THE PROSPECT OF IMPRISONMENT FOR HOWEVER SHORT A TIME WILL
SELDOM BE VIEWED BY THE ACCUSED AS A TRIVIAL OR 'PETTY' MATTER AND MAY
WELL RESULT IN QUITE SERIOUS REPERCUSSIONS AFFECTING HIS CAREER AND HIS
REPUTATION."  /6/ 

WE HOLD, THEREFORE, THAT ABSENT A KNOWING AND INTELLIGENT WAIVER, NO
PERSON MAY BE IMPRISONED FOR ANY OFFENSE, WHETHER CLASSIFIED AS PETTY,
MISDEMEANOR, OR FELONY, UNLESS HE WAS REPRESENTED BY COUNSEL AT HIS
TRIAL.  /7/ 

THAT IS THE VIEW OF THE SUPREME COURT OF OREGON, WITH WHICH WE
AGREE.  IT SAID IN STEVENSON V. HOLZMAN, 254 ORE.  94, 102, 458 P.2D
414, 418: 

    "WE HOLD THAT NO PERSON MAY BE DEPRIVED OF HIS LIBERTY WHO HAS

  BEEN DENIED THE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH

  AMENDMENT.  THIS HOLDING IS APPLICABLE TO ALL CRIMINAL

  PROSECUTIONS, INCLUDING PROSECUTIONS FOR VIOLATIONS OF MUNICIPAL

  ORDINANCES.  THE DENIAL OF THE ASSISTANCE OF COUNSEL WILL

  PRECLUDE THE IMPOSITION OF A JAIL SENTENCE."  /8/ 

WE DO NOT SIT AS AN OMBUDSMAN TO DIRECT STATE COURTS HOW TO MANAGE
THEIR AFFAIRS SHOULD BE CLASSIFIED IS LARGELY A STATE MATTER, /9/  THE
FACT THAT TRAFFIC CHARGES TECHNICALLY FALL WITHIN THE CATEGORY OF
"CRIMINAL PROSECUTIONS" DOES NOT NECESSARILY MEAN THAT MANY OF THEM
WILL BE BROUGHT INTO THE CLASS /10/  WHERE IMPRISONMENT ACTUALLY
OCCURS. 

THE AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE STATES: 

     "AS A MATTER OF SOUND JUDICIAL ADMINISTRATION IT IS PREFERABLE

  TO DISREGARD THE CHARACTERIZATION OF THE OFFENSE AS FELONY,

  MISDEMEANOR OR TRAFFIC OFFENSE.  NOR IS IT ADEQUATE TO REQUIRE

  THE PROVISION OF DEFENSE SERVICES FOR ALL OFFENSES WHICH CARRY A

  SENTENCE TO JAIL OR PRISON.  OFTEN, AS A PRACTICAL MATTER, SUCH

  SENTENCES ARE RARELY IF EVER IMPOSED FOR CERTAIN TYPES OF

  OFFENSES, SO THAT FOR ALL INTENTS AND PURPOSES THE PUNISHMENT

  THEY CARRY IS AT MOST A FINE.  THUS, THE STANDARD SEEKS TO

  DISTINGUISH THOSE CLASSES OF CASES IN WHICH THERE IS REAL

  LIKELIHOOD THAT INCARCERATION MAY FOLLOW CONVICTION FROM THOSE

  TYPES IN WHICH THERE IS NO SUCH LIKELIHOOD.  IT SHOULD BE NOTED

  THAT THE STANDARD DOES NOT RECOMMEND A DETERMINATION OF THE NEED

  FOR COUNSEL IN TERMS OF THE FACTS OF EACH PARTICULAR CASE; IT

  DRAWS A CATEGORICAL LINE AT THOSE TYPES OF OFFENSES FOR WHICH

  INCARCERATION AS A PUNISHMENT IS A PRACTICAL POSSIBILITY." 

  PROVIDING DEFENSE SERVICES 40 (APPROVED DRAFT 1968). 

UNDER THE RULE WE ANNOUNCE TODAY, EVERY JUDGE WILL KNOW WHEN THE
TRIAL OF A MISDEMEANOR STARTS THAT NO IMPRISONMENT MAY BE IMPOSED, EVEN
THOUGH LOCAL LAW PERMITS IT, UNLESS THE ACCUSED IS REPRESENTED BY
COUNSEL.  HE WILL HAVE A MEASURE OF THE SERIOUSNESS AND GRAVITY OF THE
OFFENSE AND THEREFORE KNOW WHEN TO NAME A LAWYER TO REPRESENT THE
ACCUSED BEFORE THE TRIAL STARTS. 

THE RUN OF MISDEMEANORS WILL NOT BE AFFECTED BY TODAY'S RULING.  BUT
IN THOSE THAT END UP IN THE ACTUAL DEPRIVATION OF A PERSON'S LIBERTY,
THE ACCUSED WILL RECEIVE THE BENEFIT OF "THE GUIDING HAND OF COUNSEL"
SO NECESSARY WHEN ONE'S LIBERTY IS IN JEOPARDY. 

     REVERSED. 

/1/  FOR A SURVEY OF THE OPINIONS OF JUDGES, PROSECUTORS, AND
DEFENDERS CONCERNING THE RIGHT TO COUNSEL OF PERSONS CHARGED WITH
MISDEMEANORS, SEE 1 L. SILVERSTEIN, DEFENSE OF THE POOR IN CRIMINAL
CASES IN AMERICAN STATE COURTS 127-135(1965). 

A REVIEW OF FEDERAL AND STATE DECISIONS FOLLOWING GIDEON IS
CONTAINED IN COMMENT, RIGHT TO COUNSEL:  THE IMPACT OF GIDEON V.
WAINWRIGHT IN THE FIFTY STATES, 3 CREIGHTON L.REV.  103(1970). 

TWELVE STATES PROVIDE COUNSEL FOR INDIGENTS ACCUSED OF "SERIOUS
CRIME" IN THE MISDEMEANOR CATEGORY.  ID., AT 119-124. 

NINETEEN STATES PROVIDE FOR THE APPOINTMENT OF COUNSEL IN MOST
MISDEMEANOR CASES.  ID., AT 124-133.  ONE OF THESE IS OREGON, WHOSE
SUPREME COURT SAID IN STEVENSON V. HOLZMAN, 254 ORE.  94, 100-101, 458
P.2D 414, 418, "IF OUR OBJECTIVE IS TO INSURE A FAIR TRIAL IN EVERY
CRIMINAL PROSECUTION THE NEED FOR COUNSEL IS NOT DETERMINED BY THE
SERIOUSNESS OF THE CRIME.  THE ASSISTANCE OF COUNSEL WILL BEST AVOID
CONVICTION OF THE INNOCENT-- AN OBJECTIVE AS IMPORTANT IN THE MUNICIPAL
COURT AS IN A COURT OF GENERAL JURISDICTION." 

CALIFORNIA'S REQUIREMENT EXTENDS TO TRAFFIC VIOLATIONS.  BLAKE V.
MUNICIPAL COURT, 242 CAL.APP.2D 731, 51 CAL.RPTR.  771. 

OVERALL, 31 STATES HAVE NOW EXTENDED THE RIGHT TO DEFENDANTS CHARGED
WITH CRIMES LESS SERIOUS THAN FELONIES.  COMMENT, RIGHT TO COUNSEL,
SUPRA, AT 134. 

/2/  SEE FRANKFURTER & CORCORAN, PETTY FEDERAL OFFENSES AND THE
CONSTITUTIONAL GUARANTY OF TRIAL BY JURY, 39 HARV.L.REV.  917, 980
982(1926); JAMES V. HEADLEY, 410 F.2D 325, 331.  CF. KAYE, PETTY
OFFENDERS HAVE NO PEERS., 26 U.CHI.L.REV.  245(1959). 

/3/  SEE ALSO JOHNSON V. ZERBST, 304 U.S. 458, 462-463: 

"(THE SIXTH AMENDMENT) EMBODIES A REALISTIC RECOGNITION OF THE
OBVIOUS TRUTH THAT THE AVERAGE DEFENDANT DOES NOT HAVE THE PROFESSIONAL
LEGAL SKILL TO PROTECT HIMSELF WHEN BROUGHT BEFORE A TRIBUNAL WITH
POWER TO TAKE HIS LIFE OR LIBERTY, WHEREIN THE PROSECUTION IS
(REPRESENTED BY EXPERIENCED AND LEARNED COUNSEL.  THAT WHICH IS SIMPLE,
ORDERLY AND NECESSARY TO THE LAWYER, TO THE UNTRAINED LAYMAN MAY APPEAR
INTRICATE, COMPLEX AND MYSTERIOUS." 

/4/  IN 1965, 314,000 DEFENDANTS WERE CHARGED WITH FELONIES IN STATE
COURTS, AND 24,000 WERE CHARGED WITH FELONIES IN FEDERAL COURTS. 
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, TASK FORCE REPORT:  THE COURTS 55(1967).  EXCLUSIVE OF TRAFFIC
OFFENSES, HOWEVER, IT IS ESTIMATED THAT THERE ARE ANNUALLY BETWEEN FOUR
AND FIVE MILLION COURT CASES INVOLVING MISDEMEANORS.  IBID.  AND, WHILE
THERE ARE NO AUTHORITATIVE FIGURES, EXTRAPOLATIONS INDICATE THAT THERE
ARE PROBABLY BETWEEN 40.8 AND 50 MILLION TRAFFIC OFFENSES EACH YEAR. 
NOTE, DOLLARS AND SENSE OF AN EXPANDED RIGHT TO COUNSEL, 55 IOWA
L.REV.  1249, 1261(1970). 

/5/  TITLE 18 U.S.C. 1 DEFINES A PETTY OFFENSE AS ONE IN WHICH THE
PENALTY DOES NOT EXCEED IMPRISONMENT FOR SIX MONTHS, OR A FINE OF NOT
MORE THAN $500, OR BOTH.  TITLE 18 U.S.C. 3006AB) PROVIDES FOR THE
APPOINTMENT OF COUNSEL FOR INDIGENTS IN ALL CASES "OTHER THAN A PETTY
OFFENSE."  BUT, AS THE COURT OF APPEALS FOR THE FIFTH CIRCUIT NOTED IN
JAMES V. HEADLEY, 410 F.2D,AT 330-331, 18 U.S.C. 3006A, WHICH WAS
ENACTED AS THE CRIMINAL JUSTICE ACT OF 1964, CONTAINS A CONGRESSIONAL
PLAN FOR FURNISHING LEGAL REPRESENTATION AT FEDERAL EXPENSE FOR CERTAIN
INDIGENTS AND DOES NOT PURPORT TO COVER THE FULL RANGE OF
CONSTITUTIONAL RIGHTS TO COUNSEL. 

INDEED, THE CONFERENCE REPORT ON THE CRIMINAL JUSTICE ACT OF 1964
MADE CLEAR THE CONFEREES' BELIEF THAT THE RIGHT TO COUNSEL EXTENDS TO
ALL OFFENSES, PETTY AND SERIOUS ALIKE.  H.R. CONF. REP. NO. 1709, 88TH
CONG., 2D SESS. (1964). 

IN THAT CONNECTION, THE FEDERAL RULES OF CRIMINAL PROCEDURE, AS
AMENDED IN 1966, PROVIDE IN RULE 44(A):  "EVERY DEFENDANT WHO IS UNABLE
TO OBTAIN COUNSEL SHALL BE ENTITLED TO HAVE COUNSEL ASSIGNED TO
REPRESENT HIM AT EVERY STAGE OF THE PROCEEDINGS FROM HIS INITIAL
APPEARANCE BEFORE THE COMMISSIONER OR THE COURT THROUGH APPEAL, UNLESS
HE WAIVES SUCH APPOINTMENT." 

THE ADVISORY COMMITTEE NOTE ON RULE 44 SAYS:  "LIKE THE ORIGINAL
RULE THE AMENDED RULE PROVIDES A RIGHT TO COUNSEL WHICH IS BROADER IN
TWO RESPECTS THAN THAT FOR WHICH COMPENSATION IS PROVIDED IN THE
CRIMINAL JUSTICE ACT OF 1964: 

"(1) THE RIGHT EXTENDS TO PETTY OFFENSES TO BE TRIED IN THE DISTRICT
COURTS, AND 

"(2) THE RIGHT EXTENDS TO DEFENDANTS UNABLE TO OBTAIN COUNSEL FOR
REASONS OTHER THAN FINANCIAL." 

/6/  SEE MARTSON V. OLIVER, 324 F.SUPP.  691, 696 (ED VA. 1971): 

"ANY INCARCERATION OF OVER THIRTY DAYS, MORE OR LESS, WILL USUALLY
RESULT IN LOSS OF EMPLOYMENT, WITH A CONSEQUENT SUBSTANTIAL DETRIMENT
TO THE DEFENDANT AND HIS FAMILY." 

/7/  WE DO NOT SHARE MR. JUSTICE POWELL'S DOUBT THAT THE NATION'S
LEGAL RESOURCES ARE SUFFICIENT TO IMPLEMENT THE RULE WE ANNOUNCE
TODAY.  IT HAS BEEN ESTIMATED THAT BETWEEN 1,575 AND 2,300 FULL-TIME
COUNSEL WOULD BE REQUIRED TO REPRESENT ALL INDIGENT MISDEMEANANTS,
EXCLUDING TRAFFIC OFFENDERS.  NOTE, DOLLARS AND SENSE OF AN EXPANDED
RIGHT TO COUNSEL, 55 IOWA L. REV. 1249, 1260-1261(1970).  THESE FIGURES
ARE RELATIVELY INSIGNIFICANT WHEN COMPARED TO THE ESTIMATED 355,200
ATTORNEYS IN THE UNITED STATES (STATISTICAL ABSTRACT OF THE UNITED
STATES 153(1971)), A NUMBER WHICH IS PROJECTED TO DOUBLE BY THE YEAR
1985.  SEE RUUD, THAT BURGEONING LAW SCHOOL ENROLLMENT, 58 A.B.A.J.
146, 147.  INDEED, THERE ARE 18,000 NEW ADMISSIONS TO THE BAR EACH YEAR
- 3,500 MORE LAWYERS THAN ARE REQUIRED TO FILL THE "ESTIMATED 14,500
AVERAGE ANNUAL OPENINGS."  ID., AT 148. 

/8/  ARTICLE, I, SEC. 9, OF THE PROPOSED REVISED CONSTITUTION OF
OREGON PROVIDES: 

"EVERY PERSON HAS THE RIGHT TO ASSISTANCE OF COUNSEL IN ALL OFFICIAL
PROCEEDINGS AND DEALINGS WITH PUBLIC OFFICERS THAT MAY MATERIALLY
AFFECT HIM.  IF HE CANNOT AFFORD COUNSEL, HE HAS THE RIGHT TO HAVE
COUNSEL APPOINTED FOR HIM IN ANY CASE IN WHICH HE MAY LOSE HIS
LIBERTY." 

/9/  ONE PARTIAL SOLUTION TO THE PROBLEM OF MINOR OFFENSES MAY WELL
BE TO REMOVE THEM FROM THE COURT SYSTEM.  THE AMERICAN BAR ASSOCIATION
SPECIAL COMMITTEE ON CRIME PREVENTION AND CONTROL RECENTLY RECOMMENDED,
INTER ALIA, THAT: 

"REGULATION OF VARIOUS TYPES OF CONDUCT WHICH HARM NO ONE OTHER THAN
THOSE INVOLVED (E.G., PUBLIC DRUNKENNESS, NARCOTICS ADDICTION,
VAGRANCY, AND DEVIANT SEXUAL BEHAVIOR) SHOULD BE TAKEN OUT OF THE
COURTS.  THE HANDLING OF THESE MATTERS SHOULD BE TRANSFERRED TO
NONJUDICIAL ENTITLES, SUCH AS DETOXIFICATION CENTERS, NARCOTICS
TREATMENT CENTERS AND SOCIAL SERVICE AGENCIES.  THE HANDLING OF OTHER
NONSERIOUS OFFENSES, SUCH AS HOUSING CODE AND TRAFFIC VIOLATIONS,
SHOULD BE TRANSFERRED TO SPECIALIZED ADMINISTRATIVE BODIES."  ABA
REPORT, NEW PERSPECTIVES ON URBAN CRIME IV (1972).  SUCH A SOLUTION, OF
COURSE, IS PECULIARLY WITHIN THE PROVINCE OF STATE AND LOCAL
LEGISLATURES. 

/10/  "FORTY THOUSAND TRAFFIC CHARGES (ARISING OUT OF 150,000
NONPARKING TRAFFIC CITATIONS) WERE DISPOSED OF BY COURT ACTION IN
SEATTLE DURING 1964.  THE STUDY SHOWED, HOWEVER, THAT IN ONLY ABOUT
4,500 CASES WAS THERE ANY POSSIBILITY OF IMPRISONMENT AS THE RESULT OF
A TRAFFIC CONVICTION.  IN ONLY THREE KINDS OF CASES WAS THE ACCUSED
EXPOSED TO ANY DANGER OF IMPRISONMENT:  (1) WHERE THE OFFENSE CHARGED
WAS HIT-AND-RUN, RECKLESS OR DRUNKEN DRIVING; OR (2) WHERE ANY
ADDITIONAL TRAFFIC VIOLATION WAS CHARGED AGAINST AN INDIVIDUAL SUBJECT
TO A SUSPENDED SENTENCE FOR A PREVIOUS VIOLATION; OR (3) WHERE,
WHATEVER THE OFFENSE CHARGED, THE CONVICTED INDIVIDUAL WAS UNABLE TO
PAY THE FINE IMPOSED."  JUNKER, THE RIGHT TO COUNSEL IN MISDEMEANOR
CASES, 43 WASH.L.REV.  685, 711(1968).     OF THE 1,288,975 PEOPLE
CONVICTED BY THE CITY OF NEW YORK IN 1970 FOR TRAFFIC INFRACTIONS SUCH
AS JAYWALKING AND SPEEDING, ONLY 24 WERE FINED AND IMPRISONED, GIVEN
SUSPENDED SENTENCES, OR JAILED.  CRIMINAL COURT OF THE CITY OF NEW YORK
ANNUAL REPORT 11(1970).  OF THE 19,187 CONVICTED OF MORE SERIOUS
TRAFFIC OFFENSES, SUCH AS DRIVING UNDER THE INFLUENCE, RECKLESS
DRIVING, AND LEAVING THE SCENE OF AN ACCIDENT, 404 (2.1%) WERE SUBJECT
TO SOME FORM OF IMPRISONMENT.  IBID. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
STEWART JOIN, CONCURRING. 

I JOIN THE OPINION OF THE COURT AND ADD ONLY AN OBSERVATION UPON ITS
DISCUSSION OF LEGAL RESOURCES, ANTE, AT 37 N. 7.  LAW STUDENTS AS WELL
AS PRACTICING ATTORNEYS MAY PROVIDE AN IMPORTANT SOURCE OF LEGAL
REPRESENTATION FOR THE INDIGENT.  THE COUNCIL ON LEGAL EDUCATION FOR
PROFESSIONAL RESPONSIBILITY (CLEPR) INFORMS US THAT MORE THAN 125 OF
THE COUNTRY'S 147 ACCREDITED LAW SCHOOLS HAVE ESTABLISHED CLINICAL
PROGRAMS IN WHICH FACULTY-SUPERVISED STUDENTS AID CLIENTS IN A VARIETY
OF CIVIL AND CRIMINAL MATTERS.  /1/  CLEPR NEWSLETTER, MAY 1972, P. 2. 
THESE PROGRAMS SUPPLEMENT PRACTICE RULES ENACTED IN 38 STATES
AUTHORIZING STUDENTS TO PRACTICE LAW UNDER PRESCRIBED CONDITIONS. 
IBID.  LIKE THE AMERICAN BAR ASSOCIATION'S MODEL STUDENT PRACTICE RULE
(1969), MOST OF THESE REGULATIONS PERMIT STUDENTS TO MAKE SUPERVISED
COURT APPEARANCES AS DEFENSE COUNSEL IN CRIMINAL CASES.  CLEPR, STATE
RULES PERMITTING THE STUDENT PRACTICE OF LAW:  COMPARISONS AND COMMENTS
13(1971).  GIVEN THE HUGE INCREASE IN LAW SCHOOL ENROLLMENTS OVER THE
PAST FEW YEARS, SEE RUUD, THAT BURGEONING LAW SCHOOL ENROLLMENT, 58
A.B.A.J. 146(1972), I THINK IT PLAIN THAT LAW STUDENTS CAN BE EXPECTED
TO MAKE A SIGNIFICANT CONTRIBUTION, QUANTITATIVELY AND QUALITATIVELY,
TO THE REPRESENTATION OF THE POOR IN MANY AREAS, INCLUDING CASES
REACHED BY TODAY'S DECISION. 

/1/  A TOTAL OF 57 LAW SCHOOLS HAVE ALSO ESTABLISHED CLINICAL
PROGRAMS IN CORRECTIONS, WHERE LAW STUDENTS, UNDER FACULTY SUPERVISION,
AID PRISONERS IN THE PREPARATION OF PETITIONS FOR POST-CONVICTION
RELIEF.  CLEPR NEWSLETTER, MAY 1972, P. 3.  SEE UNITED STATES V.
SIMPSON, 141 U.S.APP.D.C. 8, 15-16, 436 F.2D 162, 169-170(1970). 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE RESULT. 

I AGREE WITH MUCH OF THE ANALYSIS IN THE OPINION OF THE COURT AND
WITH MR. JUSTICE POWELL'S APPRAISAL OF THE PROBLEMS.  WERE I ABLE TO
CONFINE MY FOCUS SOLELY TO THE BURDEN THAT THE STATES WILL HAVE TO BEAR
IN PROVIDING COUNSEL, I WOULD BE INCLINED, AT THIS STAGE OF THE
DEVELOPMENT OF THE CONSTITUTIONAL RIGHT TO COUNSEL, TO CONCLUDE THAT
THERE IS MUCH TO COMMEND DRAWING THE LINE AT PENALTIES IN EXCESS OF SIX
MONTHS' CONFINEMENT.  YET SEVERAL COGENT FACTORS SUGGEST THE
INFIRMITIES IN ANY APPROACH THAT ALLOWS CONFINEMENT FOR ANY PERIOD
WITHOUT THE AID OF COUNSEL AT TRIAL; ANY DEPRIVATION OF LIBERTY IS A
SERIOUS MATTER.  THE ISSUES THAT MUST BE DEALT WITH IN A TRIAL FOR A
PETTY OFFENSE OR A MISDEMEANOR MAY OFTEN BE SIMPLER THAN THOSE INVOLVED
IN A FELONY TRIAL AND YET BE BEYOND THE CAPABILITY OF A LAYMAN,
ESPECIALLY WHEN HE IS OPPOSED BY A LAW-TRAINED PROSECUTOR.  THERE IS
LITTLE GROUND, THEREFORE, TO ASSUME THAT A DEFENDANT, UNAIDED BY
COUNSEL, WILL BE ANY MORE ABLE ADEQUATELY TO DEFEND HIMSELF AGAINST THE
LESSER CHARGES THAT MAY INVOLVE CONFINEMENT THAN MORE SERIOUS CHARGES. 
APPEAL FROM A CONVICTION AFTER AN UNCOUNSELED TRIAL IS NOT LIKELY TO BE
OF MUCH HELP TO A DEFENDANT SINCE THE DIE IS USUALLY CAST WHEN JUDGMENT
IS ENTERED ON AN UNCOUNSELED TRIAL RECORD. 

TRIAL JUDGES SITTING IN PETTY AND MISDEMEANOR CASES-- AND
PROSECUTORS-- SHOULD RECOGNIZE EXACTLY WHAT WILL BE REQUIRED BY TODAY'S
DECISION.  BECAUSE NO INDIVIDUAL CAN BE IMPRISONED UNLESS HE IS
REPRESENTED BY COUNSEL, THE TRIAL JUDGE AND THE PROSECUTOR WILL HAVE TO
ENGAGE IN A PREDICTIVE EVALUATION OF EACH CASE TO DETERMINE WHETHER
THERE IS A SIGNIFICANT LIKELIHOOD THAT, IF THE DEFENDANT IS CONVICTED,
THE TRIAL JUDGE WILL SENTENCE HIM TO A JAIL TERM.  THE JUDGE CAN
PRESERVE THE OPTION OF A JAIL SENTENCE ONLY BY OFFERING COUNSEL TO ANY
DEFENDANT UNABLE TO RETAIN COUNSEL ON HIS OWN.  THIS NEED TO PREDICT
WILL PLACE A NEW LOAD ON COURTS ALREADY OVERBURDENED AND ALREADY
COMPELLED TO DEAL WITH FAR MORE CASES IN ONE DAY THAN IS REASONABLE AND
PROPER.  YET THE PREDICTION IS NOT ONE BEYOND THE CAPACITY OF AN
EXPERIENCED JUDGE, AIDED AS HE SHOULD BE BY THE PROSECUTING OFFICER. 
AS TO JURY CASES, THE LATTER SHOULD BE PREPARED TO INFORM THE JUDGE AS
TO ANY PRIOR RECORD OF THE ACCUSED, THE GENERAL NATURE OF THE CASE
AGAINST THE ACCUSED, INCLUDING ANY USE OF VIOLENCE, THE SEVERITY OF
HARM TO THE VICTIM, THE IMPACT ON THE COMMUNITY, AND THE OTHER FACTORS
RELEVANT TO THE SENTENCING PROCESS.  SINCE THE JUDGE OUGHT TO HAVE SOME
DEGREE OF SUCH INFORMATION AFTER JUDGMENT OF GUILT IS DETERMINED, WAYS
CAN BE FOUND IN THE MORE SERIOUS MISDEMEANOR CASES WHEN JURY TRIAL IS
NOT WAIVED TO MAKE IT AVAILABLE TO THE JUDGE BEFORE TRIAL.  /1/  THIS
WILL NOT MEAN A FULL "PRESENTENCE" REPORT ON EVERY DEFENDANT IN EVERY
CASE BEFORE THE JURY PASSES ON GUILT, BUT A PROSECUTOR SHOULD KNOW
BEFORE TRIAL WHETHER HE INTENDS TO URGE A JAIL SENTENCE, AND IF HE DOES
HE SHOULD BE PREPARED TO AID THE COURT WITH THE FACTUAL AND LEGAL BASIS
FOR HIS VIEW ON THAT SCORE. 

THIS WILL MEAN NOT ONLY THAT MORE DEFENSE COUNSEL MUST BE PROVIDED,
BUT ALSO ADDITIONAL PROSECUTORS AND BETTER FACILITIES FOR SECURING
INFORMATION ABOUT THE ACCUSED AS IT BEARS ON THE PROBABILITY OF A
DECISION TO CONFINE. 

THE STEP WE TAKE TODAY SHOULD CAUSE NO SURPRISE TO THE LEGAL
PROFESSION.  MORE THAN FIVE YEARS AGO THE PROFESSION, SPEAKING THROUGH
THE AMERICAN BAR ASSOCIATION IN A REPORT ON STANDARDS RELATING TO
PROVIDING DEFENSE SERVICES, DETERMINED THAT SOCIETY'S GOAL SHOULD BE
"THAT THE SYSTEM FOR PROVIDING COUNSEL AND FACILITIES FOR THE DEFENSE
BE AS GOOD AS THE SYSTEM WHICH SOCIETY PROVIDES FOR THE PROSECUTION." 
AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE,
PROVIDING DEFENSE SERVICES 1 (APPROVED DRAFT 1968).  THE ABA WAS NOT
ADDRESSING ITSELF, AS WE MUST IN THIS CASE, TO THE CONSTITUTIONAL
REQUIREMENT BUT ONLY TO THE BROAD POLICY ISSUE.  ELSEWHERE IN THE
REPORT THE ABA STATED THAT: 

     "THE FUNDAMENTAL PREMISE OF THESE STANDARDS IS THAT

  REPRESENTATION BY COUNSEL IS DESIRABLE IN CRIMINAL CASES BOTH

  FROM THE VIEWPOINT OF THE DEFENDANT AND OF SOCIETY."  ID., AT 3. 

AFTER CONSIDERING THE SAME GENERAL FACTORS INVOLVED IN THE ISSUE WE
DECIDE TODAY, THE ABA REPORT SPECIFICALLY CONCLUDED THAT: 

     "COUNSEL SHOULD BE PROVIDED IN ALL CRIMINAL PROCEEDINGS FOR

  OFFENSES PUNISHABLE BY LOSS OF LIBERTY, EXCEPT THOSE TYPES OF

  OFFENSES FOR WHICH SUCH PUNISHMENT IS NOT LIKELY TO BE IMPOSED,

  REGARDLESS OF THEIR DENOMINATION AS FELONIES, MISDEMEANORS OR

  OTHERWISE."  ID., 4.1, PP. 37-38. 

IN A COMPANION ABA REPORT ON STANDARDS RELATING TO THE PROSECUTION
FUNCTION AND THE DEFENSE FUNCTION THE SAME BASIC THEME APPEARS IN THE
POSITIVE STANDARD CAST IN THESE TERMS: 

     "COUNSEL FOR THE ACCUSED IS AN ESSENTIAL COMPONENT OF THE

  ADMINISTRATION OF CRIMINAL JUSTICE.  A COURT PROPERLY CONSTITUTED

  TO HEAR A CRIMINAL CASE MUST BE VIEWED AS A TRIPARTITE ENTITY

  CONSISTING OF THE JUDGE (AND JURY, WHERE APPROPRIATE), COUNSEL

  FOR THE PROSECUTION, AND COUNSEL FOR THE ACCUSED."  ID., AT 153

  (APPROVED DRAFT 1968). 

THE RIGHT TO COUNSEL HAS HISTORICALLY BEEN AN EVOLVING CONCEPT.  THE
CONSTITUTIONAL REQUIREMENTS WITH RESPECT TO THE ISSUE HAVE DATED IN
RECENT TIMES FROM POWELL V. ALABAMA, 287 U.S. 45 (1932), TO GIDEON V.
WAINWRIGHT, 372 U.S. 335 (1963).  PART OF THIS EVOLUTION HAS BEEN
EXPRESSED IN THE POLICY PRESCRIPTIONS OF THE LEGAL PROFESSION ITSELF,
AND THE CONTRIBUTIONS OF THE ORGANIZED BAR AND INDIVIDUAL LAWYERS--
SUCH AS THOSE APPOINTED TO REPRESENT THE INDIGENT DEFENDANTS IN THE
POWELL AND GIDEON CASES-- HAVE BEEN NOTABLE.  THE HOLDING OF THE COURT
TODAY MAY WELL ADD LARGE NEW BURDENS ON A PROFESSION ALREADY OVERTAXED,
BUT THE DYNAMICS OF THE PROFESSION HAVE A WAY OF RISING TO THE BURDENS
PLACED ON IT. 

/1/  IN A NONJURY CASE THE PRIOR RECORD OF THE ACCUSED SHOULD NOT BE
MADE KNOWN TO THE TRIER OF FACT EXCEPT BY WAY OF TRADITIONAL
IMPEACHMENT. 

MR. JUSTICE POWELL, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING IN THE RESULT. 

GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), HELD THAT THE STATES WERE
REQUIRED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO
FURNISH COUNSEL TO ALL INDIGENT DEFENDANTS CHARGED WITH FELONIES.  /1/
THE QUESTION BEFORE US TODAY IS WHETHER AN INDIGENT DEFENDANT CONVICTED
OF AN OFFENSE CARRYING A MAXIMUM PUNISHMENT OF SIX MONTHS'
IMPRISONMENT, A FINE OF $1,000, OR BOTH, AND SENTENCED TO 90 DAYS IN
JAIL, IS ENTITLED AS A MATTER OF CONSTITUTIONAL RIGHT TO THE ASSISTANCE
OF APPOINTED COUNSEL.  THE BROADER QUESTION IS WHETHER THE DUE PROCESS
CLAUSE REQUIRES THAT AN INDIGENT CHARGED WITH A STATE PETTY OFFENSE /2/
BE AFFORDED THE RIGHT TO APPOINTED COUNSEL. 

IN THE CASE UNDER REVIEW, THE SUPREME COURT OF FLORIDA AGREED THAT
INDIGENTS CHARGED WITH SERIOUS MISDEMEANORS WERE ENTITLED TO APPOINTED
COUNSEL, BUT, BY A VOTE OF FOUR TO THREE, IT LIMITED THAT RIGHT TO
OFFENSES PUNISHABLE BY MORE THAN SIX MONTHS' IMPRISONMENT.  /3/  THE
STATE COURT, IN DRAWING A SIX-MONTH LINE, FOLLOWED THE LEAD OF THIS
COURT IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), AND IN THE
SUBSEQUENT CASE OF BALDWIN V. NEW YORK, 399 U.S. 66 (1970), WHICH WAS
DECIDED SHORTLY AFTER THE OPINION BELOW, IN WHICH THE COURT HELD THAT
THE DUE PROCESS RIGHT TO A TRIAL BY JURY IN STATE CRIMINAL CASES WAS
LIMITED TO CASES IN WHICH THE OFFENSE CHARGED WAS PUNISHABLE BY MORE
THAN SIX MONTHS' IMPRISONMENT.  IT IS CLEAR THAT WHEREVER THE RIGHT-TO
COUNSEL IS TO BE DRAWN, IT MUST BE DRAWN SO THAT AN INDIGENT HAS A
RIGHT TO APPOINTED COUNSEL IN ALL CASES IN WHICH THERE IS A DUE PROCESS
RIGHT TO A JURY TRIAL.  AN UNSKILLED LAYMAN MAY BE ABLE TO DEFEND
HIMSELF IN A NONJURY TRIAL BEFORE A JUDGE EXPERIENCED IN PIECING
TOGETHER UNASSEMBLED FACTS, BUT BEFORE A JURY THE GUIDING HAND OF
COUNSEL IS NEEDED TO MARSHAL THE EVIDENCE INTO A COHERENT WHOLE
CONSISTENT WITH THE BEST CASE ON BEHALF OF THE DEFENDANT.  IF THERE IS
NO ACCOMPANYING RIGHT TO COUNSEL, THE RIGHT TO TRIAL BY JURY BECOMES
MEANINGLESS. 

LIMITING THE RIGHT TO JURY TRIAL TO CASES IN WHICH THE OFFENSE
CHARGED IS PUNISHABLE BY MORE THAN SIX MONTHS' IMPRISONMENT DOES NOT
COMPEL THE CONCLUSION THAT THE INDIGENT'S RIGHT TO APPOINTED COUNSEL
MUST BE SIMILARLY RESTRICTED.  THE COURT'S OPINIONS IN DUNCAN, BALDWIN,
AND DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617 (1937), REVEAL THAT
THE JURY-TRIAL LIMITATION HAS HISTORIC ORIGINS AT COMMON LAW.  NO SUCH
HISTORY EXISTS TO SUPPORT A SIMILAR LIMITATION OF THE RIGHT TO COUNSEL;
TO THE CONTRARY, AT COMMON LAW, THE RIGHT TO COUNSEL WAS AVAILABLE IN
MISDEMEANOR BUT NOT IN FELONY CASES.  /4/  ONLY AS RECENTLY AS GIDEON
HAS AN INDIGENT IN A STATE TRIAL HAD A RIGHT TO APPOINTED COUNSEL IN
FELONY CASES.  MOREOVER, THE INTEREST PROTECTED BY THE RIGHT TO HAVE
GUILT OR INNOCENCE DETERMINED BY A JURY-- TEMPERING THE POSSIBLY
ARBITRARY AND HARSH EXERCISE OF PROSECUTORIAL AND JUDICAL POWER /5/  --
WHILE IMPORTANT, IS NOT AS FUNDAMENTAL TO THE GUARANTEE OF A FAIR TRIAL
AS IS THE RIGHT TO COUNSEL.  /6/ 

I AM UNABLE TO AGREE WITH THE SUPREME COURT OF FLORIDA THAT AN
INDIGENT DEFENDANT, CHARGED WITH A PETTY OFFENSE, MAY IN EVERY CASE BE
AFFORDED A FAIR TRIAL WITHOUT THE ASSISTANCE OF COUNSEL.  NOR CAN I
AGREE WITH THE NEW RULE OF DUE PROCESS, TODAY ENUNCIATED BY THE COURT,
THAT "ABSENT A KNOWING AND INTELLIGENT WAIVER, NO PERSON MAY BE
IMPRISONED . . . UNLESS HE WAS REPRESENTED BY COUNSEL AT HIS TRIAL." 
ANTE, AT 37.  IT SEEMS TO ME THAT THE LINE SHOULD NOT BE DRAWN WITH
SUCH RIGIDITY. 

THERE IS A MIDDLE COURSE, BETWEEN THE EXTREMES OF FLORIDA'S SIX
MONTH RULE AND THE COURT'S RULE, WHICH COMPORTS WITH THE REQUIREMENTS
OF THE FOURTEENTH AMENDMENT.  I WOULD ADHERE TO THE PRINCIPLE OF DUE
PROCESS THAT REQUIRES FUNDAMENTAL FAIRNESS IN CRIMINAL TRIALS, A
PRINCIPLE WHICH I BELIEVE ENCOMPASSES THE RIGHT TO COUNSEL IN PETTY
CASES WHENEVER THE ASSISTANCE OF COUNSEL IS NECESSARY TO ASSURE A FAIR
TRIAL. 

        I 

I AM IN ACCORD WITH THE COURT THAT AN INDIGENT ACCUSED'S NEED FOR
THE ASSISTANCE OF COUNSEL DOES NOT MYSTERIOUSLY EVAPORATE WHEN HE IS
CHARGED WITH AN OFFENSE PUNISHABLE BY SIX MONTHS OR LESS.  IN POWELL V.
ALABAMA /7/  AND GIDEON, /8/  BOTH OF WHICH INVOLVED FELONY
PROSECUTIONS, THIS COURT NOTED THAT FEW LAYMEN CAN PRESENT ADEQUATELY
THEIR OWN CASES, MUCH LESS IDENTIFY AND ARGUE RELEVANT LEGAL
QUESTIONS.  MANY PETTY OFFENSES WILL ALSO PRESENT COMPLEX LEGAL AND
FACTUAL ISSUES THAT MAY NOT BE FAIRLY TRIED IF THE DEFENDANT IS NOT
ASSISTED BY COUNSEL.  EVEN IN RELATIVELY SIMPLE CASES, SOME DEFENDANTS,
BECAUSE OF IGNORANCE OR SOME OTHER HANDICAP, WILL BE INCAPABLE OF
DEFENDING THEMSELVES.  THE CONSEQUENCES OF A MISDEMEANOR CONVICTION,
WHETHER THEY BE A BRIEF PERIOD SERVED UNDER THE SOMETIMES DEPLORABLE
CONDITIONS FOUND IN LOCAL JAILS OR THE EFFECT OF A CRIMINAL RECORD ON
EMPLOYABILITY, ARE FREQUENTLY OF SUFFICIENT MAGNITUDE NOT TO BE
CASUALLY DISMISSED BY THE LABEL "PETTY."  /9/ 

SERIOUS CONSEQUENCES ALSO MAY RESULT FROM CONVICTIONS NOT PUNISHABLE
BY IMPRISONMENT.  STIGMA MAY ATTACH TO A DRUNKEN-DRIVING CONVICTION OR
A HIT-AND-RUN ESCAPADE.  /10/  LOSING ONE'S DRIVER'S LICENSE IS MORE
SERIOUS FOR SOME INDIVIDUALS THAN A BRIEF STAY IN JAIL.  IN BELL V.
BURSON, 402 U.S. 535 (1971, WE SAID: 

"ONCE LICENSES ARE ISSUED, AS IN PETITIONER'S CASE, THEIR CONTINUED
POSSESSION MAY BECOME ESSENTIAL IN THE PURSUIT OF A LIVELIHOOD. 
SUSPENSION OF ISSUED LICENSES THUS INVOLVES STATE ACTION THAT
ADJUDICATES IMPORTANT INTERESTS OF THE LICENSEES.  IN SUCH CASES THE
LICENSES ARE NOT TO BE TAKEN AWAY WITHOUT THAT PROCEDURAL DUE PROCESS
REQUIRED BY THE FOURTEENTH AMENDMENT."  ID., AT 539.  WHEN THE
DEPRIVATION OF PROPERTY RIGHTS AND INTERESTS IS OF SUFFICIENT
CONSEQUENCE, /11/  DENYING THE ASSISTANCE OF COUNSEL TO INDIGENTS WHO
ARE INCAPABLE OF DEFENDANT THEMSELVES IS A DENIAL OF DUE PROCESS. 
THIS IS NOT TO SAY THAT DUE PROCESS REQUIRES THE APPOINTMENT OF COUNSEL
IN ALL PETTY CASES, OR THAT ASSESSMENT OF THE POSSIBLE CONSEQUENCES OF
CONVICTION IS THE SOLE TEST FOR THE NEED FOR ASSISTANCE OF COUNSEL. 
THE FLAT SIX-MONTH RULE OF THE FLORIDA COURT AND THE EQUALLY INFLEXIBLE
RULE OF THE MAJORITY OPINION APPLY TO ALL CASES WITHIN THEIR DEFINED
AREAS REGARDLESS OF CIRCUMSTANCES.  IT IS PRECISELY BECAUSE OF THIS
MECHANISTIC APPLICATION THAT I FIND THESE ALTERNATIVES UNSATISFACTORY. 
DUE PROCESS, PERHAPS THE MOST FUNDAMENTAL CONCEPT IN OUR LAW, EMBODIES
PRINCIPLES OF FAIRNESS RATHER THAN IMMUTABLE LINE DRAWING AS TO EVERY
ASPECT OF A CRIMINAL TRIAL.  WHILE COUNSEL IS OFTEN ESSENTIAL TO A FAIR
TRIAL, THIS IS BY NO MEANS A UNIVERSAL FACT.  SOME PETTY OFFENSE CASES
ARE COMPLEX; OTHERS ARE EXCEEDINGLY SIMPLE.  AS A JUSTIFICATION FOR
FURNISHING COUNSEL TO INDIGENTS ACCUSED OF FELONIES, THIS COURT NOTED,
"THAT GOVERNMENT HIRES LAWYERS TO PROSECUTE AND DEFENDANTS WHO HAVE THE
MONEY HIRE LAWYERS TO DEFEND ARE THE STRONGEST INDICATIONS OF THE
WIDESPREAD BELIEF THAT LAWYERS IN CRIMINAL COURTS ARE NECESSITIES, NOT
LUXURIES."  /12/  YET GOVERNMENT OFTEN DOES NOT HIRE LAWYERS TO
PROSECUTE PETTY OFFENSES; INSTEAD THE ARRESTING POLICE OFFICER PRESENTS
THE CASE.  NOR DOES EVERY DEFENDANT WHO CAN AFFORD TO DO SO HIRE
LAWYERS TO DEFEND PETTY CHARGES.  WHERE THE POSSIBILITY OF A JAIL
SENTENCE IS REMOTE AND THE PROBABLE FINE SEEMS SMALL, OR WHERE THE
EVIDENCE OF GUILT IS OVERWHELMING, THE COSTS OF ASSISTANCE OF COUNSEL
MAY EXCEED THE BENEFITS.  /13/  IT IS ANOMALOUS THAT THE COURT'S
OPINION TODAY WILL EXTEND THE RIGHT OF APPOINTED COUNSEL TO INDIGENT
DEFENDANTS IN CASES WHERE THE RIGHT TO COUNSEL WOULD RARELY BE
EXERCISED BY NONINDIGENT DEFENDANTS. 

INDEED, ONE OF THE EFFECTS OF THIS RULING WILL BE TO FAVOR
DEFENDANTS CLASSIFIED AS INDIGENTS OVER THOSE NOT SO CLASSIFIED, YET
WHO ARE IN LOW-INCOME GROUPS WHERE ENGAGING COUNSEL IN A MINOR PETTY
OFFENSE CASE WOULD BE A LUXURY THE FAMILY COULD NOT AFFORD.  THE LINE
BETWEEN INDIGENCY AND ASSUMED CAPACITY TO PAY FOR COUNSEL IS
NECESSARILY SOMEWHAT ARBITRARY, DRAWN DIFFERENTLY FROM STATE TO STATE
AND OFTEN RESULTING IN SERIOUS INEQUITIES TO ACCUSED PERSONS.  THE
COURT'S NEW RULE WILL ACCENT THE DISADVANTAGE OF BEING BARELY SELF
SUFFICIENT ECONOMICALLY. 

A SURVEY OF STATE COURTS IN WHICH MISDEMEANORS ARE TRIED SHOWED THAT
PROCEDURES WERE OFTEN INFORMAL, PRESIDED OVER BY LAY JUDGES.  JURY
TRIALS WERE RARE, AND THE PROSECUTION WAS NOT VIGOROUS.  /14/  IT IS AS
INACCURATE TO SAY THAT NO DEFENDANT CAN OBTAIN A FAIR TRIAL WITHOUT THE
ASSISTANCE OF COUNSEL IN SUCH COURTS AS IT IS TO SAY THAT NO DEFENDANT
NEEDS THE ASSISTANCE OF COUNSEL IF THE OFFENSE CHARGED IS ONLY A PETTY
ONE.  /15/ 

DESPITE ITS OVERBREADTH, THE EASIEST SOLUTION WOULD BE A
PROPHYLACTIC RULE THAT WOULD REQUIRE THE APPOINTMENT OF COUNSEL TO
INDIGENTS IN ALL CRIMINAL CASES.  THE SIMPLICITY OF SUCH A RULE IS
APPEALING BECAUSE IT COULD BE APPLIED AUTOMATICALLY IN EVERY CASE, BUT
THE PRICE OF PURSUING THIS EASY COURSE COULD BE HIGH INDEED IN TERMS OF
ITS ADVERSE IMPACT ON THE ADMINISTRATION OF THE CRIMINAL JUSTICE
SYSTEMS OF 50 STATES.  THIS IS APPARENT WHEN ONE REFLECTS ON THE WIDE
VARIETY OF PETTY OR MISDEMEANOR OFFENSES, THE VARYING DEFINITIONS
THEREOF, AND THE DIVERSITY OF PENALTIES PRESCRIBED.  THE POTENTIAL
IMPACT ON STATE COURT SYSTEMS IS ALSO APPARENT IN VIEW OF THE
VARIATIONS IN TYPES OF COURTS AND THEIR JURISDICTIONS, RANGING FROM
JUSTICES OF THE PEACE AND PART-TIME JUDGES IN THE SMALL COMMUNITIES TO
THE ELABORATELY STAFFED POLICE COURTS WHICH OPERATE 24 HOURS A DAY IN
THE GREAT METROPOLITAN CENTERS. 

THE RULE ADOPTED TODAY DOES NOT GO ALL THE WAY.  IT IS LIMITED TO
PETTY-OFFENSE CASES IN WHICH THE SENTENCE IS SOME IMPRISONMENT.  THE
THRUST OF THE COURT'S POSITION INDICATES, HOWEVER, THAT WHEN THE
DECISION MUST BE MADE, THE RULE WILL BE EXTENDED TO ALL PETTY-OFFENSE
CASES EXCEPT PERHAPS THE MOST MINOR TRAFFIC VIOLATIONS.  IF THE COURT
REJECTS ON CONSTITUTIONAL GROUNDS, AS IT HAS TODAY, THE EXERCISE OF ANY
JUDICIAL DISCRETION AS TO NEED FOR COUNSEL IF A JAIL SENTENCE IS
IMPOSED, ONE MUST ASSUME A SIMILAR REJECTION OF DISCRETION IN OTHER
PETTY-OFFENSE CASES.  IT WOULD BE ILLOGICAL-- AND WITHOUT DISCERNIBLE
SUPPORT IN THE CONSTITUTION-- TO HOLD THAT NO DISCRETION MAY EVER BE
EXERCISED WHERE A NOMINAL JAIL SENTENCE IS CONTEMPLATED AND AT THE SAME
TIME ENDORSE THE LEGITIMACY OF DISCRETION IN "NON-JAIL" PETTY-OFFENSE
CASES WHICH MAY RESULT IN FAR MORE SERIOUS CONSEQUENCES THAN A FEW
HOURS OR DAYS OF INCARCERATION. 

THE FIFTH AND FOURTEENTH AMENDMENTS GUARANTEE THAT PROPERTY, AS WELL
AS LIFE AND LIBERTY, MAY NOT BE TAKEN FROM A PERSON WITHOUT AFFORDING
HIM DUE PROCESS OF LAW.  THE MAJROITY OPINION SUGGESTS NO
CONSTITUTIONAL BASIS FOR DISTINGUISHING BETWEEN DEPRIVATIONS OF LIBERTY
AND PROPERTY.  IN FACT, THE MAJORITY SUGGESTS NO REASON AT ALL FOR
DRAWING THIS DISTINCTION.  THE LOGIC IT ADVANCES FOR EXTENDING THE
RIGHT TO COUNSEL TO ALL CASES IN WHICH THE PENALTY OF ANY IMPRISONMENT
IS IMPOSED APPLIES EQUALLY WELL TO CASES IN WHICH OTHER PENALTIES MAY
BE IMPOSED.  NOR DOES THE MAJORITY DENY THAT SOME "NON-JAIL" PENALTIES
ARE MORE SERIOUS THAN BRIEF JAIL SENTENCES. 

THUS, ALTHOUGH THE NEW RULE IS EXTENDED TODAY ONLY TO THE
IMPRISONMENT CATEGORY OF CASES, THE COURT'S OPINION FORESHADOWS THE
ADOPTION OF A BROAD PROPHYLACTIC RULE APPLICABLE TO ALL PETTY
OFFENSES.  NO ONE CAN FORESEE THE CONSEQUENCES OF SUCH A DRASTIC
ENLARGEMENT OF THE CONSTITUTIONAL RIGHT TO FREE COUNSEL.  BUT EVEN
TODAY'S DECISION COULD HAVE A SERIOUSLY ADVERSE IMPACT UPON THE DAY-TO
DAY FUNCTIONING OF THE CRIMINAL JUSTICE SYSTEM.  WE SHOULD BE SLOW TO
FASHION A NEW CONSTITUTIONAL RULE WITH CONSEQUENCES OF SUCH UNKNOWN
DIMENSIONS, ESPECIALLY SINCE IT IS SUPPORTED NEITHER BY HISTORY NOR
PRECEDENT. 

        II 

THE MAJORITY OPINION CONCLUDES THAT, ABSENT A VALID WAIVER, A PERSON
MAY NOT BE IMPRISONED EVEN FOR LESSER OFFENSES UNLESS HE WAS
REPRESENTED BY COUNSEL AT THE TRIAL.  IN SIMPLEST TERMS THIS MEANS THAT
UNDER NO CIRCUMSTANCES, IN ANY COURT IN THE LAND, MAY ANYONE BE
IMPRISONED-- HOWEVER BRIEFLY-- UNLESS HE WAS REPRESENTED BY, OR WAIVED
HIS RIGHT TO, COUNSEL.  THE OPINION IS DISQUIETINGLY BARREN OF DETAILS
AS TO HOW THIS RULE WILL BE IMPLEMENTED. 

THERE ARE THOUSANDS OF STATUTES AND ORDINANCES WHICH AUTHORIZE
IMPRISONMENT FOR SIX MONTHS OR LESS, USUALLY AS AN ALTERNATIVE TO A
FINE.  THESE OFFENSES INCLUDE SOME OF THE MOST TRIVIAL OF MISDEMEANORS,
RANGING FROM SPITTING ON THE SIDEWALK TO CERTAIN TRAFFIC OFFENSES. 
THEY ALSO INCLUDE A VARIETY OF MORE SERIOUS MISDEMEANORS.  THIS BROAD
SPECTRUM OF PETTY-OFFENSE CASES DAILY FLOODS THE LOWER CRIMINAL
COURTS.  THE RULE LAID DOWN TODAY WILL CONFRONT THE JUDGES OF EACH OF
THESE COURTS WITH AN AWKWARD DILEMMA.  IF COUNSEL IS NOT APPOINTED OR
KNOWINGLY WAIVED, NO SENTENCE OF IMPRISONMENT FOR ANY DURATION MAY BE
IMPOSED.  THE JUDGE WILL THEREFORE BE FORCED TO DECIDE IN ADVANCE OF
TRIAL-- AND WITHOUT HEARING THE EVIDENCE-- WHETHER HE WILL FORGO
ENTIRELY HIS JUDICIAL DISCRETION TO IMPOSE SOME SENTENCE OF
IMPRISONMENT AND ABANDON HIS RESPONSIBILITY TO CONSIDER THE FULL RANGE
OF PUNISHMENTS ESTABLISHED BY THE LEGISLATURE.  HIS ALTERNATIVES,
ASSUMING THE AVAILABILITY OF COUNSEL, WILL BE TO APPOINT COUNSEL AND
RETAIN THE DISCRETION VESTED IN HIM BY LAW, OR TO ABANDON THIS
DISCRETION IN ADVANCE AND PROCEED WITHOUT COUNSEL. 

IF THE LATTER COURSE IS FOLLOWED, THE FIRST VICTIM OF THE NEW RULE
IS LIKELY TO BE THE CONCEPT THAT JUSTICE REQUIRES A PERSONALIZED
DECISION BOTH AS TO GUILT AND THE SENTENCE.  THE NOTION THAT SENTENCING
SHOULD BE TAILORED TO FIT THE CRIME AND THE INDIVIDUAL WOULD HAVE TO BE
ABANDONED IN MANY CATEGORIES OF OFFENSES.  IN RESOLVING THE DILEMMA AS
TO HOW TO ADMINISTER THE NEW RULE, JUDGES WILL BE TEMPTED ARBITRARILY
TO DIVIDE PETTY OFFENSES INTO TWO CATEGORIES-- THOSE FOR WHICH
SENTENCES OF IMPRISONMENT MAY BE IMPOSED AND THOSE IN WHICH NO SUCH
SENTENCE WILL BE GIVEN REGARDLESS OF THE STATUTORY AUTHORIZATION.  IN
CREATING CATEGORIES OF OFFENSES WHICH BY LAW ARE IMPRISONABLE BUT FOR
WHICH HE WOULD NOT IMPOSE JAIL SENTENCES, A JUDGE WILL BE OVERRULING DE
FACTO THE LEGISLATIVE DETERMINATION AS TO THE APPROPRIATE RANGE OF
PUNISHMENT FOR THE PARTICULAR OFFENSE.  IT IS TRUE, AS THE MAJORITY
NOTES, THAT THERE ARE SOME CLASSES OF IMPRISONABLE OFFENSES FOR WHICH
IMPRISONMENT IS RARELY IMPOSED.  BUT EVEN IN THESE, THE OCCASIONAL
IMPOSITION OF SUCH A SENTENCE MAY SERVE A VALUABLE DETERRENT PURPOSE. 
AT LEAST THE LEGISLATURES, AND UNTIL TODAY THE COURTS, HAVE VIEWED THE
THREAT OF IMPRISONMENT-- EVEN WHEN RARELY CARRIED OUT-- AS SERVING A
LEGITIMATE SOCIAL FUNCTION. 

IN THE BRIEF FOR THE UNITED STATES AS AMICUS CURIAE, THE SOLICITOR
GENERAL SUGGESTED THAT SOME FLEXIBILITY COULD BE PRESERVED THROUGH THE
TECHNIQUE OF TRIAL DE NOVO IF THE EVIDENCE-- CONTRARY TO PRETRIAL
ASSUMPTIONS-- JUSTIFIED A JAIL SENTENCE.  PRESUMABLY A MISTRIAL WOULD
BE DECLARED, COUNSEL APPOINTED, AND A NEW TRIAL ORDERED.  BUT THE
SOLICITOR GENERAL ALSO RECOGNIZED THAT A SECOND TRIAL, EVEN WITH
COUNSEL, MIGHT BE UNFAIR IF THE PROSECUTOR COULD MAKE USE OF EVIDENCE
WHICH CAME OUT AT THE FIRST TRIAL WHEN THE ACCUSED WAS UNCOUNSELED.  IF
THE SECOND TRIAL WERE HELD BEFORE THE SAME JUDGE, HE MIGHT NO LONGER BE
OPEN-MINDED.  FINALLY, A SECOND TRIAL HELD FOR NO OTHER REASON THAN TO
AFFORD THE JUDGE AN OPPORTUNITY TO IMPOSE A HARSHER SENTENCE MIGHT RUN
AFOUL OF THE GUARANTEE AGAINST BEING TWICE PLACED IN JEOPARDY FOR THE
SAME OFFENSE.  /16/  IN ALL LIKELIHOOD, THERE WILL BE NO SECOND TRIAL
AND CERTAIN OFFENSES CLASSIFIED BY LEGISLATURES AS IMPRISONABLE, WILL
BE TREATED BY JUDGES AS UNIMPRISONABLE. 

THE NEW RULE ANNOUNCED TODAY ALSO COULD RESULT IN EQUAL PROTECTION
PROBLEMS.  THERE MAY WELL BE AN UNFAIR AND UNEQUAL TREATMENT OF
INDIVIDUAL DEFENDANTS, DEPENDING ON WHETHER THE INDIVIDUAL JUDGE HAS
DETERMINED IN ADVANCE TO LEAVE THE OPTION OF IMPRISONMENT.  THUS, AN
ACCUSED INDIGENT WOULD BE ENTITLED IN SOME COURTS TO COUNSEL WHILE IN
OTHER COURTS IN THE SAME JURISDICTION AN INDIGENT ACCUSED OF THE SAME
OFFENSE WOULD HAVE NO COUNSEL.  SINCE THE SERVICES OF COUNSEL MAY BE
ESSENTIAL TO A FAIR TRIAL EVEN IN CASES IN WHICH NO JAIL SENTENCE IS
IMPOSED, THE RESULTS OF THIS TYPE OF PRETRIAL JUDGMENT COULD BE
ARBITRARY AND DISCRIMINATORY. 

A DIFFERENT TYPE OF DISCRIMINATION COULD RESULT IN THE TYPICAL PETTY
OFFENSE CASE WHERE JUDGMENT IN THE ALTERNATIVE IS PRESCRIBED:  FOR
EXAMPLE, "FIVE DAYS IN JAIL OR $100 FINE."  IF A JUDGE HAS
PREDETERMINED THAT NO IMPRISONMENT WILL BE IMPOSED WITH RESPECT TO A
PARTICULAR CATEGORY OF CASES, THE INDIGENT WHO IS CONVICTED WILL OFTEN
RECEIVE NO MEANINGFUL SENTENCE.  THE DEFENDANT WHO CAN PAY A $100 FINE,
AND DOES SO, WILL HAVE RESPONDED TO THE SENTENCE IN ACCORDANCE WITH
LAW, WHEREAS THE INDIGENT WHO COMMITS THE IDENTICAL OFFENSE MAY PAY NO
PENALTY.  NOR WOULD THERE BE ANY DETERRENT AGAINST THE REPETITION OF
SIMILAR OFFENSES BY INDIGENTS.  /17/ 

TO AVOID THESE EQUAL PROTECTION PROBLEMS AND TO PRESERVE A RANGE OF
SENTENCING OPTIONS AS PRESCRIBED BY LAW, MOST JUDGES ARE LIKELY TO
APPOINT COUNSEL FOR INDIGENTS IN ALL BUT THE MOST MINOR OFFENSES WHERE
JAIL SENTENCES ARE EXTREMELY RARE.  IT IS DOUBTFUL THAT THE STATES
POSSESS THE NECESSARY RESOURCES TO MEET THIS SUDDEN EXPANSION OF THE
RIGHT TO COUNSEL.  THE SOLICITOR GENERAL, WHO SUGGESTED ON BEHALF OF
THE UNITED STATES THE RULE THE COURT TODAY ADOPTS, RECOGNIZED THAT THE
CONSEQUENCES COULD BE FAR REACHING.  IN ADDITION TO THE EXPENSE OF
COMPENSATING COUNSEL, HE NOTED THAT THE MANDATORY REQUIREMENT OF
DEFENSE COUNSEL WILL "REQUIRE MORE PRE-TRIAL TIME OF PROSECUTORS, MORE
COURTROOM TIME, AND THIS WILL LEAD TO BIGGER BACKLOGS WITH PRESENT
PERSONNEL.  COURT REPORTERS WILL BE NEEDED AS WELL AS COUNSEL, AND THEY
ARE ONE OF OUR WORST BOTTLENECKS."  /18/ 

AFTER EMPHASIZING THAT THE NEW CONSTITUTIONAL RULE SHOULD NOT BE
MADE RETROACTIVE, THE SOLICITOR GENERAL COMMENTED ON THE "CHAOS" WHICH
COULD RESULT FROM ANY MANDATORY REQUIREMENT OF COUNSEL IN MISDEMEANOR
CASES: 

"(IF . . . THIS COURT'S DECISION SHOULD BECOME FULLY APPLICABLE ON
THE DAY IT IS ANNOUNCED, THERE COULD BE A MASSIVE PILEUP IN THE STATE
COURTS WHICH DO NOT NOW MEET THIS STANDARD.  THIS WOULD INVOLVE DELAYS
AND FRUSTRATIONS WHICH WOULD NOT BE A REAL CONTRIBUTION TO THE
ADMINISTRATION OF JUSTICE."  /19/ THE DEGREE OF THE SOLICITOR GENERAL'S
CONCERN IS REFLECTED BY HIS ADMITTEDLY UNIQUE SUGGESTION REGARDING THE
EXTRAORDINARY DEMAND FOR COUNSEL WHICH WOULD RESULT FROM THE NEW RULE. 
RECOGNIZING IMPLICITLY THAT, IN MANY SECTIONS OF THE COUNTRY, THERE
SIMPLY WILL NOT BE ENOUGH LAWYERS AVAILABLE TO MEET THIS DEMAND EITHER
IN THE SHORT OR LONG TERM, THE SOLICITOR GENERAL SPECULATED WHETHER
"CLERGYMEN, SOCIAL WORKERS, PROBATION OFFICERS, AND OTHER PERSONS OF
THAT TYPE" COULD BE USED "AS COUNSEL IN CERTAIN TYPES OF CASES
INVOLVING RELATIVELY SMALL SENTENCES."  /20/  QUITE APART FROM THE
PRACTICAL AND POLITICAL PROBLEM OF AMENDING THE LAWS OF EACH OF THE 50
STATES WHICH REQUIRE A LICENSE TO PRACTICE LAW, IT IS DIFFICULT TO
SQUARE THIS SUGGESTION WITH THE MEANING OF THE TERM "ASSISTANCE OF
COUNSEL" LONG RECOGNIZED IN OUR LAW. 

THE MAJORITY'S TREATMENT OF THE CONSEQUENCES OF THE NEW RULE WHICH
SO CONCERNED THE SOLICITOR GENERAL IS NOT REASSURING.  IN A FOOTNOTE,
IT IS SAID THAT THERE ARE PRESENTLY 355,200 ATTORNEYS AND THAT THE
NUMBER WILL INCREASE RAPIDLY, DOUBLING BY 1985.  THIS IS ASSERTED TO BE
SUFFICIENT TO PROVIDE THE NUMBER OF FULL-TIME COUNSEL, ESTIMATED BY ONE
SOURCE AT BETWEEN 1,575 AND 2,300, TO REPRESENT ALL INDIGENT
MISDEMEANANTS, EXCLUDING TRAFFIC OFFENDERS.  IT IS TOTALLY UNREALISTIC
TO IMPLY THAT 355,200 LAWYERS ARE POTENTIALLY AVAILABLE.  THOUSANDS OF
THESE ARE NOT IN PRACTICE, AND MANY OF THOSE WHO DO PRACTICE WORK FOR
GOVERNMENTS, CORPORATE LEGAL DEPARTMENTS, OR THE ARMED SERVICES AND ARE
UNAVAILABLE FOR CRIMINAL REPRESENTATION.  OF THOSE IN GENERAL PRACTICE,
WE HAVE NO INDICATION HOW MANY ARE QUALIFIED TO DEFEND CRIMINAL CASES
OR WILLING TO ACCEPT ASSIGNMENTS WHICH MAY PROVE LESS THAN LUCRATIVE
FOR MOST.  /21/ 

IT IS SIMILARLY UNREALISTIC TO SUGGEST THAT IMPLEMENTATION OF THE
COURT'S NEW RULE WILL REQUIRE NO MORE THAN 1,575 TO 2,300 "FULL-TIME"
LAWYERS.  IN FEW COMMUNITIES ARE THERE FULL-TIME PUBLIC DEFENDERS
AVAILABLE FOR, OR PRIVATE LAWYERS SPECIALIZING IN, PETTY CASES.  THUS,
IF IT WERE POSSIBLE AT ALL, IT WOULD BE NECESSARY TO COORDINATE THE
SCHEDULES OF THOSE LAWYERS WHO ARE WILLING TO TAKE AN OCCASIONAL
MISDEMEANOR APPOINTMENT WITH THE CROWDED CALENDARS OF LOWER COURTS IN
WHICH CASES ARE NOT SCHEDULED WEEKS IN ADVANCE BUT INSTEAD ARE
FREQUENTLY TRIED THE DAY AFTER ARREST.  FINALLY, THE MAJORITY'S FOCUS
ON AGGREGATE FIGURES IGNORES THE HEART OF THE PROBLEM, WHICH IS THE
DISTRIBUTION AND AVAILABILITY OF LAWYERS, ESPECIALLY IN THE HUNDREDS OF
SMALL LOCALITIES ACROSS THE COUNTRY. 

PERHAPS THE MOST SERIOUS POTENTIAL IMPACT OF TODAY'S HOLDING WILL BE
ON OUR ALREADY OVERBURDENED LOCAL COURTS.  /22/  THE PRIMARY CAUSE OF
"ASSEMBLY LINE" JUSTICE IS A VOLUME OF CASES FAR IN EXCESS OF THE
CAPACITY OF THE SYSTEM TO HANDLE EFFICIENTLY AND FAIRLY.  THE COURT'S
RULE MAY WELL EXACERBATE DELAY AND CONGESTION IN THESE COURTS.  WE ARE
FAMILIAR WITH THE COMMON TACTIC OF COUNSEL OF EXHAUSTING EVERY POSSIBLE
LEGAL AVENUE, OFTEN WITHOUT DUE REGARD TO ITS PROBABLE PAYOFF.  IN SOME
CASES THIS MAY BE THE LAWYER'S DUTY; IN OTHER CASES IT WILL BE DONE FOR
PURPOSES OF DELAY.  /23/  THE ABSENCE OF DIRECT ECONOMIC IMPACT ON THE
CLIENT, PLUS THE OMNIPRESENT INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM,
FREQUENTLY PRODUCES A DECISION TO LITIGATE EVERY ISSUE.  IT IS LIKELY
THAT YOUNG LAWYERS, FRESH OUT OF LAW SCHOOL, WILL RECEIVE MOST OF THE
APPOINTMENTS IN PETTY-OFFENSE CASES.  THE ADMIRABLE ZEAL OF THESE
LAWYERS; THEIR EAGERNESS TO MAKE A REPUTATION; THE TIME THEIR NOT YET
CROWDED SCHEDULES PERMIT THEM TO DEVOTE TO RELATIVELY MINOR LEGAL
PROBLEMS; THEIR DESIRE FOR COURTROOM EXPOSURE; THE AVAILABILITY IN SOME
CASES OF HOURLY FEES, LUCRATIVE TO THE NOVICE; AND THE RECENT
CONSTITUTIONAL EXPLOSION IN PROCEDURAL RIGHTS FOR THE ACCUSED-- ALL
THESE FACTORS ARE LIKELY TO RESULT IN THE STRETCHING OUT OF THE PROCESS
WITH CONSEQUENT INCREASED COSTS TO THE PUBLIC AND ADDED DELAY AND
CONGESTION IN THE COURTS.  /24/ 

THERE IS AN ADDITIONAL PROBLEM.  THE ABILITY OF VARIOUS STATES AND
LOCALITIES TO FURNISH COUNSEL VARIES WIDELY.  EVEN IF THERE WERE
ADEQUATE RESOURCES ON A NATIONAL BASIS, THE UNEVEN DISTRIBUTION OF
THESE RESOURCES-- OF LAWYERS, OF FACILITIES, AND AVAILABLE FUNDING--
PRESENTS THE MOST ACUTE PROBLEM.  A NUMBER OF STATE COURTS HAVE
CONSIDERED THE QUESTION BEFORE THE COURT IN THIS CASE, AND HAVE BEEN
COMPELLED TO CONFRONT THESE REALITIES.  MANY HAVE CONCLUDED THAT THE
INDIGENT'S RIGHT TO APPOINTED COUNSEL DOES NOT EXTEND TO ALL
MISDEMEANOR CASES.  IN REACHING THIS CONCLUSION, THE STATE COURTS HAVE
DRAWN THE RIGHT-TO-COUNSEL LINE IN DIFFERENT PLACES, AND MOST HAVE
ACKNOWLEDGED THAT THEY WERE MOVED TO DO SO, AT LEAST IN PART, BY THE
IMPRACTICALITY OF GOING FURTHER.  /25/  IN OTHER STATES, LEGISLATURES
AND COURTS THROUGH THE ENACTMENT OF LAWS OR RULES HAVE DRAWN THE LINE
SHORT OF THAT ADOPTED BY THE MAJORITY.  /26/  THESE CASES AND STATUTES
REFLECT THE JUDGMENT OF THE COURTS AND LEGISLATURES OF MANY STATES,
WHICH UNDERSTAND THE PROBLEMS OF LOCAL JUDICIAL SYSTEMS BETTER THAN
THIS COURT, THAT THE RULE ANNOUNCED BY THE COURT TODAY MAY SERIOUSLY
OVERTAX CAPABILITIES.  /27/ 

THE PAPERS FILED IN A RECENT PETITION TO THIS COURT FOR A WRIT OF
CERTIORARI SERVE AS AN EXAMPLE OF WHAT TODAY'S RULING WILL MEAN IN SOME
LOCALITIES.  IN NOVEMBER 1971 THE PETITION IN WRIGHT V. TOWN OF WOOD,
NO. 71-5722, WAS FILED WITH THIS COURT.  THE CASE, ARISING OUT OF A
SOUTH DAKOTA POLICE MAGISTRATE COURT CONVICTION FOR THE MUNICIPAL
OFFENSE OF PUBLIC INTOXICATION, RAISES THE SAME ISSUES BEFORE US IN
THIS CASE.  THE COURT REQUESTED THAT THE TOWN OF WOOD FILE A RESPONSE. 
ON MARCH 8, 1972, A LAWYER OCCASIONALLY EMPLOYED BY THE TOWN FILED WITH
THE CLERK AN AFFIDAVIT EXPLAINING WHY THE TOWN HAD NOT RESPONDED.  HE
EXPLAINED THAT WOOD, SOUTH DAKOTA, HAS A POPULATION OF 132, THAT IT HAS
NO SEWER OR WATER SYSTEM AND IS QUITE POOR, THAT THE OFFICE OF THE
NEAREST LAWYER IS IN A TOWN 40 MILES AWAY, AND THAT THE TOWN HAD
DECIDED THAT CONTESTING THIS CASE WOULD BE AN UNWISE ALLOCATION OF ITS
LIMITED RESOURCES. 

THOUGH UNDOUBTEDLY SMALLER THAN MOST, WOOD IS NOT DISSIMILAR TO
HUNDREDS OF COMMUNITIES IN THE UNITED STATES WITH NO OR VERY FEW
LAWYERS, WITH MEAGER FINANCIAL RESOURCES, BUT WITH THE NEED TO HAVE
SOME SORT OF LOCAL COURT SYSTEM TO DEAL WITH MINOR OFFENSES.  /28/  IT
IS QUITE COMMON FOR THE MORE NUMEROUS PETTY OFFENSES IN SUCH TOWNS TO
BE TRIED BY LOCAL COURTS OR MAGISTRATES WHILE THE MORE SERIOUS OFFENSES
ARE TRIED IN A COUNTY-WIDE COURT LOCATED IN THE COUNTY SEAT.  /29/  IT
IS UNDOUBTEDLY TRUE THAT SOME INJUSTICES RESULT FROM THE INFORMAL
PROCEDURES OF THESE LOCAL COURTS WHEN COUNSEL IS NOT FURNISHED;
CERTAINLY COUNSEL SHOULD BE FURNISHED TO SOME INDIGENTS IN SOME CASES. 
BUT TO REQUIRE THAT COUNSEL BE FURNISHED VIRTUALLY EVERY INDIGENT
CHARGED WITH AN IMPRISONABLE OFFENSE WOULD BE A PRACTICAL IMPOSSIBILITY
FOR MANY SMALL TOWN COURTS.  THE COMMUNITY COULD SIMPLY NOT ENFORCE ITS
OWN LAWS.  /30/ 

PERHAPS IT WILL BE SAID THAT I GIVE UNDUE WEIGHT BOTH TO THE
LIKELIHOOD OF SHORT-TERM "CHAOS" AND TO THE POSSIBILITY OF LONG-TERM
ADVERSE EFFECTS ON THE SYSTEM.  THE ANSWER MAY BE GIVEN THAT IF THE
CONSTITUTION REQUIRES THE RULE ANNOUNCED BY THE MAJORITY, THE
CONSEQUENCES ARE IMMATERIAL.  IF I WERE SATISFIED THAT THE GUARANTEE OF
DUE PROCESS REQUIRED THE ASSISTANCE OF COUNSEL IN EVERY CASE IN WHICH A
JAIL SENTENCE IS IMPOSED OR THAT THE ONLY WORKABLE METHOD OF INSURING
JUSTICE IS TO ADOPT THE MAJORITY'S RULE, I WOULD NOT HESITATE TO JOIN
THE COURT'S OPINION DESPITE MY MISGIVINGS AS TO ITS EFFECT UPON THE
ADMINISTRATION OF JUSTICE.  BUT IN ADDITION TO THE RESULTING PROBLEMS
OF AVAILABILITY OF COUNSEL, OF COSTS, AND ESPECIALLY OF INTOLERABLE
DELAY IN AN ALREADY OVERBURDENED SYSTEM, THE MAJORITY'S DRAWING OF A
NEW INFLEXIBLE RULE MAY RAISE MORE FOURTEENTH AMENDMENT PROBLEMS THAN
IT RESOLVES.  ALTHOUGH THE COURT'S OPINION DOES NOT DEAL EXPLICITLY
WITH ANY SENTENCE OTHER THAN DEPRIVATION OF LIBERTY HOWEVER BRIEF, THE
ACCORDING OF SPECIAL CONSTITUTIONAL STATUS TO CASES WHERE SUCH A
SENTENCE IS IMPOSED MAY DEROGATE FROM THE NEED FOR COUNSEL IN OTHER
TYPES OF CASES, UNLESS THE COURT EMBRACES AN EVEN BROADER PROPHYLACTIC
RULE.  DUE PROCESS REQUIRES A FAIR TRIAL IN ALL CASES.  NEITHER THE SIX
MONTH RULE APPROVED BELOW NOR THE RULE TODAY ENUNCIATED BY THE COURT IS
LIKELY TO ACHIEVE THIS RESULT. 

        III 

I WOULD HOLD THAT THE RIGHT TO COUNSEL IN PETTY-OFFENSE CASES IS NOT
ABSOLUTE BUT IS ONE TO BE DETERMINED BY THE TRIAL COURTS EXERCISING A
JUDICIAL DISCRETION ON A CASE-BY-CASE BASIS.  /31/  THE DETERMINATION
SHOULD BE MADE BEFORE THE ACCUSED FORMALLY PLEADS; MANY PETTY CASES ARE
RESOLVED BY GUILTY PLEAS IN WHICH THE ASSISTANCE OF COUNSEL MAY BE
REQUIRED.  /32/  IF THE TRIAL COURT SHOULD CONCLUDE THAT THE ASSISTANCE
OF COUNSEL IS NOT REQUIRED IN ANY CASE, IT SHOULD STATE ITS REASONS SO
THAT THE ISSUE COULD BE PRESERVED FOR REVIEW.  THE TRIAL COURT WOULD
THEN BECOME OBLIGATED TO SCRUTINIZE CAREFULLY THE SUBSEQUENT
PROCEEDINGS FOR THE PROTECTION OF THE DEFENDANT.  IF AN UNREPRESENTED
DEFENDANT SOUGHT TO ENTER A PLEA OF GUILTY, THE COURT SHOULD EXAMINE
THE CASE AGAINST HIM TO INSURE THAT THERE IS ADMISSIBLE EVIDENCE
TENDING TO SUPPORT THE ELEMENTS OF THE OFFENSE.  IF A CASE WENT TO
TRIAL WITHOUT DEFENSE COUNSEL, THE COURT SHOULD INTERVENE, WHEN
NECESSARY, TO INSURE THAT THE DEFENDANT ADEQUATELY BRINGS OUT THE FACTS
IN HIS FAVOR AND TO PREVENT LEGAL ISSUES FROM BEING OVERLOOKED.  FORMAL
TRIAL RULES SHOULD NOT BE APPLIED STRICTLY AGAINST UNREPRESENTED
DEFENDANTS.  FINALLY, APPELLATE COURTS SHOULD CAREFULLY SCRUTINIZE ALL
DECISIONS NOT TO APPOINT COUNSEL AND THE PROCEEDINGS WHICH FOLLOW. 

IT IS IMPOSSIBLE, AS WELL AS UNWISE, TO CREATE A PRECISE AND
DETAILED SET OF GUIDLINES FOR JUDGES TO FOLLOW IN DETERMINING WHETHER
THE APPOINTMENT OF COUNSEL IS NECESSARY TO ASSURE A FAIR TRIAL. 
CERTAINLY THREE GENERAL FACTORS SHOULD BE WEIGHED.  FIRST, THE COURT
SHOULD CONSIDER THE COMPLEXITY OF THE OFFENSE CHARGED.  FOR EXAMPLE,
CHARGES OF TRAFFIC LAW INFRACTIONS WOULD RARELY PRESENT COMPLEX LEGAL
OR FACTUAL QUESTIONS, BUT CHARGES THAT CONTAIN DIFFICULT INTENT
ELEMENTS OR WHICH RAISE COLLATERAL LEGAL QUESTIONS, SUCH AS SEARCH-AND
SEIZURE PROBLEMS, WOULD USUALLY BE TOO COMPLEX FOR AN UNASSISTED
LAYMAN.  IF THE OFFENSE WERE ONE WHERE THE STATE IS REPRESENTED BY
COUNSEL AND WHERE MOST DEFENDANTS WHO CAN AFFORD TO DO SO OBTAIN
COUNSEL, THERE WOULD BE A STRONG INDICATION THAT THE INDIGENT ALSO
NEEDS THE ASSISTANCE OF COUNSEL. 

SECOND, THE COURT SHOULD CONSIDER THE PROBABLE SENTENCE THAT WILL
FOLLOW IF A CONVICTION IS OBTAINED.  THE MORE SERIOUS THE LIKELY
CONSEQUENCES, THE GREATER IS THE PROBABILITY THAT A LAWYER SHOULD BE
APPOINTED.  AS NOTED IN PART I ABOVE, IMPRISONMENT IS NOT THE ONLY
SERIOUS CONSEQUENCE THE COURT SHOULD CONSIDER. 

THIRD, THE COURT SHOULD CONSIDER THE INDIVIDUAL FACTORS PECULIAR TO
EACH CASE.  THESE, OF COURSE, WOULD BE THE MOST DIFFICULT TO
ANTICIPATE.  ONE RELEVANT FACTOR WOULD BE THE COMPETENCY OF THE
INDIVIDUAL DEFENDANT TO PRESENT HIS OWN CASE.  THE ATTITUDE OF THE
COMMUNITY TOWARD A PARTICULAR DEFENDANT OR PARTICULAR INCIDENT WOULD BE
ANOTHER CONSIDERATION.  BUT THERE MIGHT BE OTHER REASONS WHY A
DEFENDANT WOULD HAVE A PECULIAR NEED FOR A LAWYER WHICH WOULD COMPEL
THE APPOINTMENT OF COUNSEL IN A CASE WHERE THE COURT WOULD NORMALLY
THINK THIS UNNECESSARY.  OBVIOUSLY, THE SENSITIVITY AND DILIGENCE OF
INDIVIDUAL JUDGES WOULD BE CRUCIAL TO THE OPERATION OF A RULE OF
FUNDAMENTAL FAIRNESS REQUIRING THE CONSIDERATION OF THE VARYING FACTORS
IN EACH CASE. 

SUCH A RULE IS SIMILAR IN CERTAIN RESPECTS TO THE SPECIAL
CIRCUMSTANCES RULE APPLIED TO FELONY CASES IN BETTS V. BRADY, 316 U.S.
455 (1942), AND BUTE V. ILLINOIS, 333 U.S. 640 (1948), WHICH THIS COURT
OVERRULED IN GIDEON.  /33/  ONE OF THE REASONS FOR SEEKING A MORE
DEFINITIVE STANDARD IN FELONY CASES WAS THE FAILURE OF MANY STATE
COURTS TO LIVE UP TO THEIR RESPONSIBILITIES IN DETERMINING ON A CASE-BY
CASE BASIS WHETHER COUNSEL SHOULD BE APPOINTED.  SEE THE CONCURRING
OPINION OF MR. JUSTICE HARLAN IN GIDEON, 372 U.S.,AT 350-351.  BUT THIS
COURT SHOULD NOT ASSUME THAT THE PAST INSENSITIVITY OF SOME STATE
COURTS TO THE RIGHTS OF DEFENDANTS WILL CONTINUE.  CERTAINLY IF THE
COURT FOLLOWS THE COURSE OF READING RIGID RULES INTO THE CONSTITUTION,
SO THAT THE STATE COURTS WILL BE UNABLE TO EXERCISE JUDICIAL DISCRETION
WITHIN THE LIMITS OF FUNDAMENTAL FAIRNESS, THERE IS LITTLE REASON TO
THINK THAT INSENSITIVITY WILL ABATE. 

IN CONCLUDING, I EMPHASIZE MY LONG-HELD CONVICTION THAT THE
ADVERSARY SYSTEM FUNCTIONS BEST AND MOST FAIRLY ONLY WHEN ALL PARTIES
ARE REPRESENTED BY COMPETENT COUNSEL.  BEFORE BECOMING A MEMBER OF THIS
COURT, I PARTICIPATED IN EFFORTS TO ENLARGE AND EXTEND THE AVAILABILITY
OF COUNSEL.  THE CORRECT DISPOSITION OF THIS CASE, THEREFORE, HAS BEEN
A MATTER OF CONSIDERABLE CONCERN TO ME-- AS IT HAS TO THE OTHER MEMBERS
OF THE COURT.  WE ARE ALL STRONGLY DRAWN TO THE IDEAL OF EXTENDING THE
RIGHT TO COUNSEL, BUT I DIFFER AS TO TWO FUNDAMENTALS:  (I) WHAT THE
CONSTITUTION REQUIRES, AND (II) THE EFFECT UPON THE CRIMINAL JUSTICE
SYSTEM, ESPECIALLY IN THE SMALLER CITIES AND THE THOUSANDS OF POLICE,
MUNICIPAL, AND JUSTICE OF THE PEACE COURTS ACROSS THE COUNTRY. 

THE VIEW I HAVE EXPRESSED IN THIS OPINION WOULD ACCORD CONSIDERABLE
DISCRETION TO THE COURTS, AND WOULD ALLOW THE FLEXIBILITY AND
OPPORTUNITY FOR ADJUSTMENT WHICH SEEMS SO NECESSARY WHEN WE ARE
IMPOSING NEW DOCTRINE ON THE LOWEST LEVEL OF COURTS OF 50 STATES. 
ALTHOUGH THIS VIEW WOULD NOT PRECIPITATE THE "CHAOS" PREDICTED BY THE
SOLICITOR GENERAL AS THE PROBABLE RESULT OF THE COURT'S ABSOLUTIST
RULE, THERE WOULD STILL REMAIN SERIOUS PRACTICAL PROBLEMS RESULTING
FROM THE EXPANSION OF INDIGENTS' RIGHTS TO COUNSEL IN PETTY-OFFENSE
CASES.  /34/  BUT THE ACCORDING OF REVIEWABLE DISCRETION TO THE COURTS
IN DETERMINING WHEN COUNSEL IS NECESSARY FOR A FAIR TRIAL, RATHER THAN
MANDATING A COMPLETELY INFLEXIBLE RULE, WOULD FACILITATE AN ORDERLY
TRANSITION TO A FAR WIDER AVAILABILITY AND USE OF DEFENSE COUNSEL. 

IN THIS PROCESS, THE COURTS OF FIRST INSTANCE WHICH DECIDE THESE
CASES WOULD HAVE TO RECOGNIZE A DUTY TO CONSIDER THE NEED FOR COUNSEL
IN EVERY CASE WHERE THE DEFENDANT FACES A SIGNIFICANT PENALTY.  THE
FACTORS MENTIONED ABOVE, AND SUCH STANDARDS OR GUIDELINES TO ASSURE
FAIRNESS AS MIGHT BE PRESCRIBED IN EACH JURISDICTION BY LEGISLATION OR
RULE OF COURT, SHOULD BE CONSIDERED WHERE RELEVANT.  THE GOAL SHOULD
BE, IN ACCORD WITH THE ESSENCE OF THE ADVERSARY SYSTEM, TO EXPAND AS
RAPIDLY AS PRACTICABLE THE AVAILABILITY OF COUNSEL SO THAT NO PERSON
ACCUSED OF CRIME MUST STAND ALONE IF COUNSEL IS NEEDED.     AS THE
PROCEEDINGS IN THE COURTS BELOW WERE NOT IN ACCORD WITH THE VIEWS
EXPRESSED ABOVE, I CONCUR IN THE RESULT OF THE DECISION IN THIS CASE. 

/1/  WHILE IT IS TRUE THAT MR. JUSTICE BLACK'S OPINION FOR THE COURT
IN GIDEON IS NOT NARROWLY WRITTEN, MR. JUSTICE HARLAN WAS QUICK TO
SUGGEST, IN HIS CONCURRING OPINION, THAT THE FACTS IN GIDEON DID NOT
REQUIRE THE COURT TO DECIDE WHETHER THE INDIGENT'S RIGHT TO APPOINTED
COUNSEL SHOULD EXTEND TO ALL CRIMINAL CASES.  372 U.S.,AT 351.  IN
OPINIONS ANNOUNCED MORE RECENTLY, THE COURT HAS ASSUMED THAT THE
HOLDING OF GIDEON HAS NOT YET BEEN EXTENDED TO MISDEMEANOR CASES.  SEE
IN RE GAULT, 387 U.S. 1, 29 (1967); MEMPA V. RHAY, 389 U.S. 128, 134
(1967); BURGETT V. TEXAS, 389 U.S. 109, 114 (1967); LOPER V. BETO, 405
U.S. 473 (1972). 

/2/  AS USED HEREIN, THE TERM "PETTY OFFENSE" MEANS ANY OFFENSE
WHERE THE AUTHORIZED IMPRISONMENT DOES NOT EXCEED SIX MONTHS, BALDWIN
V. NEW YORK, 399 U.S. 66, 69 (1970).  IT ALSO INCLUDES ALL OFFENSES NOT
PUNISHABLE BY IMPRISONMENT, REGARDLESS OF THE AMOUNT OF ANY FINE THAT
MIGHT BE AUTHORIZED.  TO THIS EXTENT, THE DEFINITION USED HEREIN
DIFFERS FROM THE FEDERAL STATUTORY DEFINITION OF "PETTY OFFENSE," WHICH
INCLUDES OFFENSES PUNISHABLE BY NOT MORE THAN SIX MONTHS' IMPRISONMENT
OR BY A FINE NOT EXCEEDING $500.  18 U.S.C. 1. 

/3/  236 SO.2D 442 (1970). 

/4/  SEE POWELL V. ALABAMA, 287 U.S. 45, 60-61 (1932). 

/5/  DUNCAN V. LOUISIANA, 391 U.S. 145, 156 (1968). 

/6/  ALTHOUGH WE HAVE GIVEN RETROACTIVE EFFECT TO OUR RULING IN
GIDEON, PICKELSIMER V. WAINWRIGHT, 375 U.S. 2 (1963), WE HAVE SAID
THAT, "(THE VALUES IMPLEMENTED BY THE RIGHT TO JURY TRIAL WOULD NOT
MEASURABLY BE SERVED BY REQUIRING RETRIAL OF ALL PERSONS CONVICTED IN
THE PAST BY PROCEDURES NOT CONSISTENT WITH THE SIXTH AMENDMENT RIGHT TO
JURY TRIAL."  DESTEFANO V. WOODS, 392 U.S. 631, 634 (1968). 

/7/  SUPRA, N. 4, AT 68-69. 

/8/  372 U.S.,AT 343-345. 

/9/  SEE 1 L. SILVERSTEIN, DEFENSE OF THE POOR IN CRIMINAL CASES IN
AMERICAN STATE COURTS 132 (1965). 

/10/  SEE JAMES V. HEADLEY, 410 F.2D 325, 334-335 (CA 5 1969). 

/11/  A WIDE RANGE OF CIVIL DISABILITIES MAY RESULT FROM MISDEMEANOR
CONVICTIONS, SUCH AS FORFEITURE OF PUBLIC OFFICE (STATE EX REL. STINGER
V. KRUGER, 280 MO. 293, 217 S.W. 310 (1919)), DISQUALIFICATION FOR A
LICENSED PROFESSION (CAL. BUS.  & PROF. CODE 3094 (1962)
(OPTOMETRISTS); N.C. GEN. STAT. 93A-4(B) (1965) (REAL ESTATE BROKERS)),
AND LOSS OF PENSION RIGHTS (FLA. STAT. ANN. 185.18(3) (1966) (POLICE
DISABILITY PENSION DENIED WHEN INJURY IS RESULT OF PARTICIPATION IN
FIGHTS, RIOTS, CIVIL INSURRECTIONS, OR WHILE COMMITTING CRIME); IND.
ANN. STAT. 28-4616 (1948) (TEACHER CONVICTED OF MISDEMEANOR RESULTING
IN IMPRISONMENT); PA. STAT. ANN., TIT. 53, SEC. 39323 (SUPP. 1972-1973)
AND 65599 (1957) (CONVICTION OF CRIME OR MISDEMEANOR)).  SEE GENERALLY
PROJECT, THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION, 23
VAND.L.REV.  929 (1970). 

/12/  GIDEON V. WAINWRIGHT, 372 U.S.,AT 344. 

/13/  IN PETTY OFFENSES, THERE IS MUCH LESS PLEA NEGOTIATION THAN IN
SERIOUS OFFENSES.  SEE REPORT BY THE PRESIDENT'S COMMISSION ON LAW
ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A
FREE SOCIETY (HEREINAFTER CHALLENGE) 134 (1967).  THUS, IN CASES WHERE
THE EVIDENCE OF GUILT IS OVERWHELMING, THE ASSISTANCE OF COUNSEL IS
LESS ESSENTIAL TO OBTAIN A LIGHTER SENTENCE. 

/14/  SILVERSTEIN, SUPRA, N. 9, AT 125-126. 

/15/  NEITHER THE REPORT BY THE PRESIDENT'S COMMISSION ON LAW
ENFORCEMENT AND ADMINISTRATION OF JUSTICE NOR THE AMERICAN BAR
ASSOCIATION WENT THE ROUTE THE COURT TAKES TODAY.  THE PRESIDENT'S
COMMISSION RECOMMENDED THAT COUNSEL BE PROVIDED FOR CRIMINAL DEFENDANTS
WHO FACE "A SIGNIFICANT PENALTY" AND AT LEAST TO THOSE WHO ARE IN
DANGER OF "SUBSTANTIAL LOSS OF LIBERTY."  CHALLENGE, SUPRA, N. 13, AT
150.  THE AMERICAN BAR ASSOCIATION STANDARD WOULD NOT EXTEND THE RIGHT
TO COUNSEL TO CASES WHERE "LOSS OF LIBERTY" IS NOT "LIKELY TO BE
IMPOSED."  AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, PROVIDING DEFENSE SERVICES 37-40 (APPROVED DRAFT 1968). 
NEITHER SUPPORTS A NEW, INFLEXIBLE CONSTITUTIONAL RULE. 

/16/  SEE CALLAN V. WILSON, 127 U.S. 540 (1888); NORTH CAROLINA V.
PEARCE, 395 U.S. 711 (1969). 

/17/  THE TYPE OF PENALTY DISCUSSED ABOVE (INVOLVING THE
DISCRETIONARY ALTERNATIVE OF "JAIL OR FINE") PRESENTS SERIOUS PROBLEMS
OF FAIRNESS-- BOTH TO INDIGENTS AND NONINDIGENTS AND TO THE
ADMINISTRATION OF JUSTICE.  CF. TATE V. SHORT, 401 U.S. 395 (1971).  NO
ADEQUATE RESOLUTION OF THESE INHERENTLY DIFFICULT PROBLEMS HAS YET BEEN
FOUND.  THE RULE ADOPTED BY THE COURT TODAY, DEPRIVING THE LOWER COURTS
OF ALL DISCRETION IN SUCH CASES UNLESS COUNSEL IS AVAILABLE AND IS
APPOINTED, COULD AGGRAVATE THE PROBLEM. 

/18/  TR. OF ORAL ARG. 34-35. 

/19/  ID., AT 36-37. 

/20/  ID., AT 39. 

/21/  THE CUSTOM IN MANY, IF NOT MOST, LOCALITIES IS TO APPOINT
COUNSEL ON A CASE-BY-CASE BASIS.  COMPENSATION IS GENERALLY
INADEQUATE.  EVEN IN THE FEDERAL COURTS UNDER THE CRIMINAL JUSTICE ACT
OF 1964, 18 U.S.C. 3006A, WHICH PROVIDES ONE OF THE MOST GENEROUS
COMPENSATION PLANS, THE RATES FOR APPOINTED COUNSEL-- $20 PER HOUR
SPENT OUT OF COURT, $30 PER HOUR OF COURT TIME, SUBJECT TO A MAXIMUM
TOTAL FEE OF $400 FOR A MISDEMEANOR CASE AND $1,000 FOR A FELONY-- ARE
LOW BY AMERICAN STANDARDS.  CONSEQUENTLY, THE MAJORITY OF PERSONS
WILLING TO ACCEPT APPOINTMENTS ARE THE YOUNG AND INEXPERIENCED.  SEE
CAPPELLETTI, PART ONE:  THE EMERGENCY OF A MODERN THEME, IN CAPPELLETTI
& GORDLEY, LEGAL AID:  MODERN THEMES AND VARIATIONS, 24 STAN.L.REV. 
347, 377-378 (1972).  MR. JUSTICE BRENNAN SUGGESTS, IN HIS CONCURRING
OPINION, THAT LAW STUDENTS MIGHT PROVIDE AN IMPORTANT SOURCE OF LEGAL
REPRESENTATION.  HE PRESENTS NO FIGURES, HOWEVER, AS TO HOW MANY
STUDENTS WOULD BE QUALIFIED AND WILLING TO UNDERTAKE THE
RESPONSIBILITIES OF DEFENDING INDIGENT MISDEMEANANTS.  ALTHOUGH WELCOME
PROGRESS IS BEING MADE WITH PROGRAMS, SUPPORTED BY THE AMERICAN BAR
ASSOCIATION, TO ENLIST THE INVOLVEMENT OF LAW STUDENTS IN INDIGENT
REPRESENTATION, THE PROBLEMS OF MEETING STATE REQUIREMENTS AND OF
ASSURING THE REQUISITE CONTROL AND SUPERVISION, ARE FAR FROM
INSUBSTANTIAL.  MOREOVER, THE IMPACT OF STUDENT PARTICIPATION WOULD BE
LIMITED PRIMARILY TO THE 140 OR LESS COMMUNITIES WHERE THESE LAW
SCHOOLS ARE LOCATED. 

/22/  SEE GENERALLY H. JAMES, CRISIS IN THE COURTS, C. 2 (1968);
CHALLENGE, SUPRA, N. 13, AT 145-156. 

/23/  SEE, E.G., JAMES, SUPRA, N. 22, AT 27-30; SCHRAG, ON HER
MAJESTY'S SECRET SERVICE:  PROTECTING THE CONSUMER IN NEW YORK CITY, 80
YALE L.J. 1529 (1971). 

/24/  IN COOK COUNTY, ILLINOIS, A RECENT STUDY REVEALED THAT THE
MEMBERS OF THE CHICAGO BAR ASSOCIATION'S COMMITTEE ON THE DEFENSE OF
PRISONERS WHO ARE APPOINTED TO REPRESENT INDIGENT DEFENDANTS ELECT A
JURY TRIAL IN 63% OF THEIR TRIAL CASES, WHILE OTHER APPOINTED COUNSEL
AND RETAINED COUNSEL DO SO IN 33% AND THE PUBLIC DEFENDER IN ONLY 15%.
"ONE POSSIBLE EXPLANATION FOR THIS CONTRAST IS THAT COMMITTEE COUNSEL,
WHO ARE SOMETIMES SERVING IN PART TO GAIN EXPERIENCE, ARE MORE WILLING
TO UNDERTAKE A JURY TRIAL THAN IS AN ASSISTANT PUBLIC DEFENDER, WHO IS
VERY BUSY AND VERY CONSCIOUS OF THE PROBABLE EXTRA PENALTY ACCRUING TO
A DEFENDANT WHO LOSES HIS CASE BEFORE A JURY."  D. OAKS & W. LEHMAN, A
CRIMINAL JUSTICE SYSTEM AND THE INDIGENT 159 (1968) (FOOTNOTE
OMITTED). 

/25/  SEE IRVIN V. STATE, 44 ALA.APP.  101, 203 SO.2D 283 (1967);
BURRAGE V. SUPERIOR COURT, 105 ARIZ. 53, 459 P.2D 313 (1969); CABLETON
V. STATE, 243 ARK. 351, 420 S.W.2D 534 (1967); STATE EX REL.
ARGERSINGER V. HAMLIN, 236 SO.2D 442 (FLA. 1970); PEOPLE V. DUPREE, 42
ILL.2D 249, 246 N.E.2D 281 (1969); PEOPLE V. MALLORY, 378 MICH. 538,
147 N.W.2D 66 (1967); HENDRIX V. CITY OF SEATTLE, 76 WASH.2D 142, 456
P.2D 696 (1969), CERT. DENIED, 397 U.S. 948 (1970); STATE EX REL.
PLUTSCHACK V. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, 37 WIS.2D 713,
155 N.W.2D 549 (1968). 

/26/  SEE HAWAII CONST., ART. I, SEC. 11 (1968); IDAHO CODE 19-851,
19-852 (SUPP. 1971); KAN. STAT. ANN. 22-4503 (SUPP. 1971); KY. RULE
CRIM. PROC. 8.04; LA. REV. STAT. 15:141(F) (1967); ME. RULE CRIM. PROC.
44; MD. RULE 719B2(A); NEV. REV. STAT. 29-1803 (1964); NEV. REV. STAT.
171.188, 193.140 (1969); N. MEX.  STAT.  ANN. 41-22-3 (SUPP. 1971);
UTAH CODE ANN. 77-64-2 (SUPP. 1971); VT. STAT. ANN., TIT. 13, SEC. 6503
(SUPP. 1971); VA. CODE ANN. 19.1-241.1 (SUPP. 1971). 

/27/  SEE KAMISAR & CHOPER, THE RIGHT TO COUNSEL IN MINNESOTA:  SOME
FIELD FINDINGS AND LEGAL-POLICY OBSERVATIONS, 48 MINN.L.REV.  1, 68
(1963).  LOCAL JUDGES INTERVIEWED BY THE AUTHORS CONCLUDED THAT THE
RIGHT TO COUNSEL SHOULD NOT BE EXTENDED TO PETTY CASES.  "IF NO SUCH
DIVIDING LINE CAN BE DRAWN, IF THE QUESTION OF ASSIGNED COUNSEL IN
MISDEMEANOR CASES RESOLVES ITSELF INTO AN 'ALL OR NOTHING' PROPOSITION,
THEN, THE THRUST OF THEIR VIEWS WAS THAT LIMITED FUNDS AND LAWYER
MANPOWER AND THE NEED FOR JUDICIAL ECONOMY DICTATE THAT IT BE
'NOTHING.'"  (FOOTNOTE OMITTED.)  BUT SEE STATE V. BORST, 278 MINN.
388, 154 N.W.2D 888 (1967). 

/28/  SEE CABLETON V. STATE, 243 ARK.,AT 358, 420 S.W.2D,AT 538-539:
"(THERE ARE MORE JUSTICES OF THE PEACE IN ARKANSAS THAN THERE ARE
RESIDENT PRACTICING LAWYERS AND . . . THERE ARE COUNTIES IN WHICH THERE
ARE NO PRACTICING LAWYERS.  THE IMPACT OF (RIGHT TO COUNSEL IN
MISDEMEANOR CASES) WOULD SERIOUSLY IMPAIR THE ADMINISTRATION OF JUSTICE
IN ARKANSAS AND IMPOSE AN INTOLERABLE BURDEN UPON THE LEGAL
PROFESSION."  (FOOTNOTE OMITTED.) 

/29/  SEE SILVERSTEIN, SUPRA, N. 9, AT 125-126. 

/30/  THE SUCCESSFUL IMPLEMENTATION OF THE MAJORITY'S RULE WOULD
REQUIRE STATE AND LOCAL GOVERNMENTS TO APPROPRIATE CONSIDERABLE FUNDS,
SOMETHING THEY HAVE NOT BEEN WILLING TO DO.  THREE STATES WITH 21% OF
THE NATION'S POPULATION PROVIDE MORE THAN 50% OF ALL STATE
APPROPRIATIONS FOR INDIGENT DEFENSE.  NOTE, DOLLARS AND SENSE OF AN
EXPANDED RIGHT TO COUNSEL, 55 IOWA L.REV.  1249, 1265 (1970).  FOR
EXAMPLE, IN 1971 THE STATE OF KANSAS SPENT $570,000 DEFENDING INDIGENTS
IN FELONY CASES-- UP FROM $376,000 IN 1969.  ALTHOUGH THE BUDGETARY
REQUEST FOR 1972 WAS $612,000, THE LEGISLATURE HAS APPROPRIATED ONLY
$400,000.  BRIEF FOR APPELLANT IN JAMES V. STRANGE, NO. 71-11, DECIDED
TODAY, POST, P. 128.  "IN VIEW OF AMERICAN RESOURCES THE FUNDS SPENT ON
THE LEGAL SERVICES PROGRAM CAN ONLY BE REGARDED AS TRIVIAL." 
CAPPELLETTI, SUPRA, N. 21, AT 379.  "ALTHOUGH THE AMERICAN ECONOMY IS
OVER 8 TIMES THE SIZE OF THE BRITISH AND THE AMERICAN POPULATION IS
ALMOST 4 TIMES AS GREAT, AMERICAN LEGAL AID EXPENDITURES ARE LESS THAN
2 TIMES AS HIGH."  ID., AT 379 N. 210. 

/31/  IT SEEMS TO ME THAT SUCH AN INDIVIDUALIZED RULE, UNLIKE A SIX
MONTH RULE AND THE MAJORITY'S RULE, DOES NOT PRESENT EQUAL PROTECTION
PROBLEMS UNDER THIS COURT'S DECISIONS IN GRIFFIN V. ILLINOIS, 351 U.S.
12 (1956); DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963); AND MAYER V.
CITY OF CHICAGO, 404 U.S. 189 (1971). 

/32/  SEE, E.G., KATZ, MUNICIPAL COURTS-- ANOTHER URBAN ILL, 20 CASE
WESTERN RESERVE L.REV.  87, 92-96 (1968).  CF. HAMILTON V. ALABAMA, 368
U.S. 52 (1961); WHITE V. MARYLAND, 373 U.S. 59 (1963); HARVEY V.
MISSISSIPPI, 340 F.2D 263 (CA 5 1965). 

ALTHOUGH THERE IS LESS PLEA NEGOTIATING IN PETTY CASES, SEE N. 13,
SUPRA, THE ASSISTANCE OF COUNSEL MAY STILL BE NEEDED SO THAT THE
DEFENDANT WHO IS NOT FACED WITH OVERWHELMING EVIDENCE OF GUILT CAN MAKE
AN INTELLIGENT DECISION WHETHER TO GO TO TRIAL. 

/33/  I DO NOT DISAGREE WITH THE OVERRULING OF BETTS; I AM IN
COMPLETE ACCORD WITH GIDEON.  BETTS, LIKE GIDEON, CONCERNED THE RIGHT
TO COUNSEL IN A FELONY CASE.  SEE N. 1, SUPRA.  NEITHER CASE CONTROLS
TODAY'S RESULT. 

/34/  INDEED, IT IS RECOGNIZED THAT MANY OF THE PROBLEMS IDENTIFIED
IN THIS OPINION WILL RESULT FROM ANY RAISING OF THE STANDARDS AS TO THE
REQUIREMENT OF COUNSEL.  IT IS MY VIEW THAT RELYING UPON JUDICIAL
DISCRETION TO ASSURE FAIR TRIAL OF PETTY OFFENSES NOT ONLY COMPORTS
WITH THE CONSTITUTION BUT WILL MINIMIZE PROBLEMS WHICH OTHERWISE COULD
AFFECT ADVERSELY THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE VERY
COURTS WHICH ALREADY ARE UNDER THE MOST SEVERE STRAIN. 

BRUCE S. ROGOW ARGUED THE CAUSE FOR PETITIONER ON THE REARGUMENT AND
J. MICHAEL SHEA ARGUED THE CAUSE PRO HAC VICE ON THE ORIGINAL
ARGUMENT.  WITH THEM ON THE BRIEF WAS P. A. HUBBART. 

GEORGE R. GEORGIEFF, ASSISTANT ATTORNEY GENERAL OF FLORIDA, REARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE ROBERT L. SHEVIN,
ATTORNEY GENERAL, AND RAYMOND L. MARKY, ASSISTANT ATTORNEY GENERAL,
JOINED BY THE ATTORNEYS GENERAL FOR THEIR RESPECTIVE STATES AS FOLLOWS:
GARY K. NELSON OF ARIZONA, ARTHUR K. BOLTON OF GEORGIA, W. ANTHONY
PARK OF IDAHO, JACK P. F. GREMILLION OF LOUISIANA, JAMES S. ERWIN OF
MAINE, ROBERT L. WOODAHL OF MONTANA, ROBERT LIST OF NEVADA, ROBERT
MORGAN OF NORTH CAROLINA, HELGI JOHANNESON OF NORTH DAKOTA, AND DANIEL
R. MCLEOD OF SOUTH CAROLINA. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE ON THE REARGUMENT URGING REVERSAL.  WITH HIM ON THE BRIEF
WERE ASSISTANT ATTORNEY GENERAL PETERSEN, DEPUTY SOLICITOR GENERAL
GREENAWALT, HARRY R. SACHSE, BEATRICE ROSENBERG, AND SIDNEY M. GLAZER. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY WILLIAM E.
HELLERSTEIN FOR THE LEGAL AID SOCIETY OF NEW YORK, AND BY MARSHALL J.
HARTMAN FOR THE NATIONAL LEGAL AID AND DEFENDER ASSOCIATION. 

LAUREN BEASLEY, CHIEF ASSISTANT ATTORNEY GENERAL OF UTAH, FILED A
BRIEF FOR THE ATTORNEY GENERAL OF UTAH AS AMICUS CURIAE URGING
AFFIRMANCE. 

BRIEFS OF AMICI CURIAE WERE FILED BY JOHN E. HAVELOCK, ATTORNEY
GENERAL, FOR THE STATE OF ALASKA, AND BY ANDREW P. MILLER, ATTORNEY
GENERAL, AND VANN H. LEFCOE, ASSISTANT ATTORNEY GENERAL, FOR THE
COMMONWEALTH OF VIRGINIA. 
..END :








FUENTES V. SHEVIN, 407 U.S. 67 


       FUENTES V. SHEVIN, ATTORNEY GENERAL OF FLORIDA, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF FLORIDA

NO. 70-5039.  ARGUED NOVEMBER 9, 1971-- DECIDED JUNE 12,

         1972  /0/ 


APPELLANTS, MOST OF WHOM WERE PURCHASERS OF HOUSEHOLD GOODS UNDER
CONDITIONAL SALES CONTRACTS, CHALLENGE THE CONSTITUTIONALITY OF
PREJUDGMENT REPLEVIN PROVISIONS OF FLORIDA LAW (IN NO. 70-5039) AND
PENNSYLVANIA LAW (IN NO. 70-5138).  THESE PROVISIONS PERMIT A PRIVATE
PARTY, WITHOUT A HEARING OR PRIOR NOTICE TO THE OTHER PARTY, TO OBTAIN
A PREJUDGMENT WRIT OF REPLEVIN THROUGH A SUMMARY PROCESS OF EX PARTE
APPLICATION TO A COURT CLERK, UPON THE POSTING OF A BOND FOR DOUBLE THE
VALUE OF THE PROPERTY TO BE SEIZED.  THE SHERIFF IS THEN REQUIRED TO
EXECUTE THE WRIT BY SEIZING THE PROPERTY.  UNDER THE FLORIDA STATUTE
THE OFFICER SEIZING THE PROPERTY MUST KEEP IT FOR THREE DAYS.  DURING
THAT PERIOD THE DEFENDANT MAY RECLAIM POSSESSION BY POSTING HIS OWN
SECURITY BOND FOR DOUBLE THE PROPERTY'S VALUE, IN DEFAULT OF WHICH THE
PROPERTY IS TRANSFERRED TO THE APPLICANT FOR THE WRIT, PENDING A FINAL
JUDGMENT IN THE UNDERLYING REPOSSESSION ACTION.  IN PENNSYLVANIA THE
APPLICANT NEED NOT INITIATE A REPOSSESSION ACTION OR ALLEGE (AS FLORIDA
REQUIRES) LEGAL ENTITLEMENT TO THE PROPERTY, IT BEING SUFFICIENT THAT
HE FILE AN "AFFIDAVIT OF THE VALUE OF THE PROPERTY"; AND TO SECURE A
POST-SEIZURE HEARING THE PARTY LOSING THE PROPERTY THROUGH REPLEVIN
MUST HIMSELF INITIATE A SUIT TO RECOVER THE PROPERTY.  HE MAY ALSO POST
HIS OWN COUNTERBOND WITHIN THREE DAYS OF THE SEIZURE TO REGAIN
POSSESSION.  INCLUDED IN THE PRINTED-FORM SALES CONTRACTS THAT
APPELLANTS SIGNED WERE PROVISIONS FOR THE SELLERS' REPOSSESSION OF THE
MERCHANDISE ON THE BUYERS' DEFAULT.  THREE-JUDGE DISTRICT COURTS IN
BOTH CASES UPHELD THE CONSTITUTIONALITY OF THE CHALLENGED REPLEVIN
PROVISIONS.  HELD: 

1.  THE FLORIDA AND PENNSYLVANIA REPLEVIN PROVISIONS ARE INVALID
UNDER THE FOURTEENTH AMENDMENT SINCE THEY WORK A DEPRIVATION OF
PROPERTY WITHOUT DUE PROCESS OF LAW BY DENYING THE RIGHT TO A PRIOR
OPPORTUNITY TO BE HEARD BEFORE CHATTELS ARE TAKEN FROM THE POSSESSOR. 
PP. 80-93. 

(A) PROCEDURAL DUE PROCESS IN THE CONTEXT OF THESE CASES REQUIRES AN
OPPORTUNITY FOR A HEARING BEFORE THE STATE AUTHORIZES ITS AGENTS TO
SEIZE PROPERTY IN THE POSSESSION OF A PERSON UPON THE APPLICATION OF
ANOTHER, AND THE MINIMAL DETERRENT EFFECT OF THE BOND REQUIREMENT
AGAINST UNFOUNDED APPLICATIONS FOR A WRIT CONSTITUTES NO SUBSTITUTE FOR
A PRE-SEIZURE HEARING.  PP. 80-84. 

(B) FROM THE STANDPOINT OF THE APPLICATION OF THE DUE PROCESS CLAUSE
IT IS IMMATERIAL THAT THE DEPRIVATION MAY BE TEMPORARY AND NONFINAL
DURING THE THREE-DAY POST-SEIZURE PERIOD.  PP. 84-86. 

(C) THE POSSESSORY INTEREST OF APPELLANTS, WHO HAD MADE SUBSTANTIAL
INSTALLMENT PAYMENTS, WAS SUFFICIENT FOR THEM TO INVOKE PROCEDURAL DUE
PROCESS SAFEGUARDS NOTWITHSTANDING THEIR LACK OF FULL TITLE TO THE
REPLEVIED GOODS.  PP. 86-87. 

(D) THE DISTRICT COURTS ERRED IN REJECTING APPELLANTS'
CONSTITUTIONAL CLAIM ON THE GROUND THAT THE HOUSEHOLD GOODS SEIZED WERE
NOT ITEMS OF "NECESSITY" AND THEREFORE DID NOT REQUIRE DUE PROCESS
PROTECTION, AS THE FOURTEENTH AMENDMENT IMPOSES NO SUCH LIMITATION. 
PP. 88-90. 

(E) THE BROADLY DRAWN PROVISIONS HERE INVOLVED SERVE NO SUCH
IMPORTANT A STATE INTEREST AS MIGHT JUSTIFY SUMMARY SEIZURE.  PP. 90
93. 

2.  THE CONTRACT PROVISIONS FOR REPOSSESSION BY THE SELLER ON THE
BUYER'S DEFAULT DID NOT AMOUNT TO A WAIVER OF THE APPELLANTS'
PROCEDURAL DUE PROCESS RIGHTS, THOSE PROVISIONS NEITHER DISPENSING WITH
A PRIOR HEARING NOR INDICATING THE PROCEDURE BY WHICH REPOSSESSION WAS
TO BE ACHIEVED.  D. H. OVERMYER CO. V. FRICK CO., 405 U.S. 174,
DISTINGUISHED.  PP. 94-96. 

NO. 70-5039, 317 F.SUPP.  954, AND NO. 70-5138, 326 F.SUPP.  127,
VACATED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, AND MARSHALL, JJ., JOINED.  WHITE, J., FILED A DISSENTING
OPINION, IN WHICH BURGER, C.J., AND BLACKMUN, J., JOINED, POST, P. 97. 
POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASES. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

WE HERE REVIEW THE DECISIONS OF TWO THREE-JUDGE FEDERAL DISTRICT
COURTS THAT UPHELD THE CONSTITUTIONALITY OF FLORIDA AND PENNSYLVANIA
LAWS AUTHORIZING THE SUMMARY SEIZURE OF GOODS OR CHATTELS IN A PERSON'S
POSSESSION UNDER A WRIT OF REPLEVIN.  BOTH STATUTES PROVIDE FOR THE
ISSUANCE OF WRITS ORDERING STATE AGENTS TO SEIZE A PERSON'S
POSSESSIONS, SIMPLY UPON THE EX PARTE APPLICATION OF ANY OTHER PERSON
WHO CLAIMS A RIGHT TO THEM AND POSTS A SECURITY BOND.  NEITHER STATUTE
PROVIDES FOR NOTICE TO BE GIVEN TO THE POSSESSOR OF THE PROPERTY, AND
NEITHER STATUTE GIVES THE POSSESSOR AN OPPORTUNITY TO CHALLENGE THE
SEIZURE AT ANY KIND OF PRIOR HEARING.  THE QUESTION IS WHETHER THESE
STATUTORY PROCEDURES VIOLATE THE FOURTEENTH AMENDMENT'S GUARANTEE THAT
NO STATE SHALL DEPRIVE ANY PERSON OF PROPERTY WITHOUT DUE PROCESS OF
LAW. 

        I 

THE APPELLANT IN NO. 5039, MARGARITA FUENTES, IS A RESIDENT OF
FLORIDA.  SHE PURCHASED A GAS STOVE AND SERVICE POLICY FROM THE
FIRESTONE TIRE AND RUBBER CO. (FIRESTONE) UNDER A CONDITIONAL SALES
CONTRACT CALLING FOR MONTHLY PAYMENTS OVER A PERIOD OF TIME.  A FEW
MONTHS LATER, SHE PURCHASED A STEREOPHONIC PHONOGRAPH FROM THE SAME
COMPANY UNDER THE SAME SORT OF CONTRACT.  THE TOTAL COST OF THE STOVE
AND STEREO WAS ABOUT $500, PLUS AN ADDITION FINANCING CHARGE OF OVER
$100.  UNDER THE CONTRACTS, FIRESTONE RETAINED TITLE TO THE
MERCHANDISE, BUT MRS. FUENTES WAS ENTITLED TO POSSESSION UNLESS AND
UNTIL SHE SHOULD DEFAULT ON HER INSTALLMENT PAYMENTS. 

FOR MORE THAN A YEAR, MRS. FUENTES MADE HER INSTALLMENT PAYMENTS. 
BUT THEN, WITH ONLY ABOUT $200 REMAINING TO BE PAID, A DISPUTE
DEVELOPED BETWEEN HER AND FIRESTONE OVER THE SERVICING OF THE STOVE. 
FIRESTONE INSTITUTED AN ACTION IN A SMALL-CLAIMS COURT FOR REPOSSESSION
OF BOTH THE STOVE AND THE STEREO, CLAIMING THAT MRS. FUENTES HAD
REFUSED TO MAKE HER REMAINING PAYMENTS.  SIMULTANEOUSLY WITH THE FILING
OF THAT ACTION AND BEFORE MRS. FUENTES HAD EVEN RECEIVED A SUMMONS TO
ANSWER ITS COMPLAINT, FIRESTONE OBTAINED A WRIT OF REPLEVIN ORDERING A
SHERIFF TO SEIZE THE DISPUTED GOODS AT ONCE. 

IN CONFORMANCE WITH FLORIDA PROCEDURE, /1/  FIRESTONE HAD ONLY TO
FILL IN THE BLANKS ON THE APPROPRIATE FORM DOCUMENTS AND SUBMIT THEM TO
THE CLERK OF THE SMALL-CLAIMS COURT.  THE CLERK SIGNED AND STAMPED THE
DOCUMENTS AND ISSUED A WRIT OF REPLEVIN.  LATER THE SAME DAY, A LOCAL
DEPUTY SHERIFF AND AN AGENT OF FIRESTONE WENT TO MRS. FUENTES' HOME AND
SEIZED THE STOVE AND STEREO. 

SHORTLY THEREAFTER, MRS. FUENTES INSTITUTED THE PRESENT ACTION IN A
FEDERAL DISTRICT COURT, CHALLENGING THE CONSTITUTIONALITY OF THE
FLORIDA PREJUDGMENT REPLEVIN PROCEDURES UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  /2/  SHE SOUGHT DECLARATORY AND INJUNCTIVE
RELIEF AGAINST CONTINUED ENFORCEMENT OF THE PROCEDURAL PROVISIONS OF
THE STATE STATUTES THAT AUTHORIZE PREJUDGMENT REPLEVIN.  /3/ 

THE APPELLANTS IN NO. 5138 FILED A VERY SIMILAR ACTION IN A FEDERAL
DISTRICT COURT IN PENNSYLVANIA, CHALLENGING THE CONSTITUTIONALITY OF
THAT STATE'S PREJUDGMENT REPLEVIN PROCESS.  LIKE MRS. FUENTES, THEY HAD
HAD POSSESSIONS SEIZED UNDER WRITS OF REPLEVIN.  THREE OF THE
APPELLANTS HAD PURCHASED PERSONAL PROPERTY-- A BED, A TABLE, AND OTHER
HOUSEHOLD GOODS-- UNDER INSTALLMENT SALES CONTRACTS LIKE THE ONE SIGNED
BY MRS. FUENTES; AND THE SELLERS OF THE PROPERTY HAD OBTAINED AND
EXECUTED SUMMARY WRITS OF REPLEVIN, CLAIMING THAT THE APPELLANTS HAD
FALLEN BEHIND IN THEIR INSTALLMENT PAYMENTS.  THE EXPERIENCE OF THE
FOURTH APPELLANT, ROSA WASHINGTON, HAD BEEN MORE BIZARRE.  SHE HAD BEEN
DIVORCED FROM A LOCAL DEPUTY SHERIFF AND WAS ENGAGED IN A DISPUTE WITH
HIM OVER THE CUSTODY OF THEIR SON.  HER FORMER HUSBAND, BEING FAMILIAR
WITH THE ROUTINE FORMS USED IN THE REPLEVIN PROCESS, HAD OBTAINED A
WRIT THAT ORDERED THE SEIZURE OF THE BOY'S CLOTHES, FURNITURE, AND
TOYS.  /4/ 

IN BOTH NO. 5039 AND NO. 5138, THREE-JUDGE DISTRICT COURTS WERE
CONVENED TO CONSIDER THE APPELLANTS' CHALLENGES TO THE CONSTITUTIONAL
VALIDITY OF THE FLORIDA AND PENNSYLVANIA STATUTES.  THE COURTS IN BOTH
CASES UPHELD THE CONSTITUTIONALITY OF THE STATUTES.  FUENTES V.
FAIRCLOTH, 317 F.SUPP.  954 (SD FLA); EPPS V. CORTESE, 326 F.SUPP.  127
(ED PA.).  /5/  WE NOTED PROBABLE JURISDICTION OF BOTH APPEALS.  401
U.S. 906; 402 U.S. 994. 

        II 

UNDER THE FLORIDA STATUTE CHALLENGED HERE, /6/  "(ANY PERSON WHOSE
GOODS OR CHATTELS ARE WRONGFULLY DETAINED BY ANY OTHER PERSON . . . MAY
HAVE A WRIT OF REPLEVIN TO RECOVER THEM.  . . . "  FLA. STAT. ANN. SEC.
78.01 (SUPP. 1972-1973).  THERE IS NO REQUIREMENT THAT THE APPLICANT
MAKE A CONVINCING SHOWING BEFORE THE SEIZURE THAT THE GOODS ARE, IN
FACT, "WRONGFULLY DETAINED."  RATHER, FLORIDA LAW AUTOMATICALLY RELIES
ON THE BARE ASSERTION OF THE PARTY SEEKING THE WRIT THAT HE IS ENTITLED
TO ONE AND ALLOWS A COURT CLERK TO ISSUE THE WRIT SUMMARILY.  IT
REQUIRES ONLY THAT THE APPLICANT FILE A COMPLAINT, INITIATING A COURT
ACTION FOR REPOSSESSION AND RECITING IN CONCLUSORY FASHION THAT HE IS
"LAWFULLY ENTITLED TO THE POSSESSION" OF THE PROPERTY, AND THAT HE FILE
A SECURITY BOND 

"IN AT LEAST DOUBLE THE VALUE OF THE PROPERTY TO BE REPLEVIED
CONDITIONED THAT PLAINTIFF WILL PROSECUTE HIS ACTION TO EFFECT AND
WITHOUT DELAY AND THAT IF DEFENDANT RECOVERS JUDGMENT AGAINST HIM IN
THE ACTION, HE WILL RETURN THE PROPERTY, IF RETURN THEREOF IS ADJUDGED,
AND WILL PAY DEFENDANT ALL SUMS OF MONEY RECOVERED AGAINST PLAINTIFF BY
DEFENDANT IN THE ACTION."  FLA. STAT. ANN. SEC. 78.07 (SUPP. 1972
1973).  ON THE SOLE BASIS OF THE COMPLAINT AND BOND, A WRIT IS ISSUED
"COMMANDING) THE OFFICER TO WHOM IT MAY BE DIRECTED TO REPLEVY THE
GOODS AND CHATTELS IN POSSESSION OF THE DEFENDANT . . . AND TO SUMMON
THE DEFENDANT TO ANSWER THE COMPLAINT."  FLA. STAT. ANN. SEC. 78.08
(SUPP. 1972-1973).  IF THE GOODS ARE "IN ANY DWELLING HOUSE OR OTHER
BUILDING OR ENCLOSURE," THE OFFICER IS REQUIRED TO DEMAND THEIR
DELIVERY; BUT, IF THEY ARE NOT DELIVERED, "HE SHALL CAUSE SUCH HOUSE,
BUILDING OR ENCLOSURE TO BE BROKEN OPEN AND SHALL MAKE REPLEVIN
ACCORDING TO THE WRIT.  . . . " FLA. STAT. ANN. SEC. 78.10 (SUPP. 1972
1973). 

THUS, AT THE SAME MOMENT THAT THE DEFENDANT RECEIVES THE COMPLAINT
SEEKING REPOSSESSION OF PROPERTY THROUGH COURT ACTION, THE PROPERTY IS
SEIZED FROM HIM.  HE IS PROVIDED NO PRIOR NOTICE AND ALLOWED NO
OPPORTUNITY WHATEVER TO CHALLENGE THE ISSUANCE OF THE WRIT.  AFTER THE
PROPERTY HAS BEEN SEIZED, HE WILL EVENTUALLY HAVE AN OPPORTUNITY FOR A
HEARING, AS THE DEFENDANT IN THE TRIAL OF THE COURT ACTION FOR
REPOSSESSION, WHICH THE PLAINTIFF IS REQUIRED TO PURSUE.  AND HE IS
ALSO NOT WHOLLY WITHOUT RECOURSE IN THE MEANTIME.  FOR UNDER THE
FLORIDA STATUTE, THE OFFICER WHO SEIZES THE PROPERTY MUST KEEP IT FOR
THREE DAYS, AND DURING THAT PERIOD THE DEFENDANT MAY RECLAIM POSSESSION
OF THE PROPERTY BY POSTING HIS OWN SECURITY BOND IN DOUBLE ITS VALUE. 
BUT IF HE DOES NOT POST SUCH A BOND, THE PROPERTY IS TRANSFERRED TO THE
PARTY WHO SOUGHT THE WRIT, PENDING A FINAL JUDGMENT IN THE UNDERLYING
ACTION FOR REPOSSESSION.  FLA. STAT. ANN. SEC. 78.13 (SUPP. 1972
1973). 

THE PENNSYLVANIA LAW /7/  DIFFERS, THOUGH NOT IN ITS ESSENTIAL
NATURE, FROM THAT OF FLORIDA.  AS IN FLORIDA, A PRIVATE PARTY MAY
OBTAIN A PREJUDGMENT WRIT OF REPLEVIN THROUGH A SUMMARY PROCESS OF EX
PARTE APPLICATION TO A PROTHONOTARY.  AS IN FLORIDA, THE PARTY SEEKING
THE WRIT MAY SIMPLY POST WITH HIS APPLICATION A BOND IN DOUBLE THE
VALUE OF THE PROPERTY TO BE SEIZED.  PA. RULE CIV. PROC. 1073(A). 
THERE IS NO OPPORTUNITY FOR A PRIOR HEARING AND NO PRIOR NOTICE TO THE
OTHER PARTY.  ON THIS BASIS, A SHERIFF IS REQUIRED TO EXECUTE THE WRIT
BY SEIZING THE SPECIFIED PROPERTY.  UNLIKE THE FLORIDA STATUTE,
HOWEVER, THE PENNSYLVANIA LAW DOES NOT REQUIRE THAT THERE EVER BE
OPPORTUNITY FOR A HEARING ON THE MERITS OF THE CONFLICTING CLAIMS TO
POSSESSION OF THE REPLEVIED PROPERTY.  THE PARTY SEEKING THE WRIT IS
NOT OBLIGED TO INITIATE A COURT ACTION FOR REPOSSESSION.  /8/  INDEED,
HE NEED NOT EVEN FORMALLY ALLEGE THAT HE IS LAWFULLY ENTITLED TO THE
PROPERTY.  THE MOST THAT IS REQUIRED IS THAT HE FILE AN "AFFIDAVIT OF
THE VALUE OF THE PROPERTY TO BE REPLEVIED."  PA. RULE CIV. PROC.
1073(A).  IF THE PARTY WHO LOSES PROPERTY THROUGH REPLEVIN SEIZURE IS
TO GET EVEN A POST-SEIZURE HEARING, HE MUST INITIATE A LAWSUIT
HIMSELF.  /9/  HE MAY ALSO, AS UNDER FLORIDA LAW, POST HIS OWN
COUNTERBOND WITHIN THREE DAYS AFTER THE SEIZURE TO REGAIN POSSESSION. 
PA. RULE CIV. PROC. 1076. 

        III 

ALTHOUGH THESE PREJUDGMENT REPLEVIN STATUTES ARE DESCENDED FROM THE
COMMON-LAW REPLEVIN ACTION OF SIX CENTURIES AGO, THEY BEAR VERY LITTLE
RESEMBLANCE TO IT.  REPLEVIN AT COMMON LAW WAS AN ACTION FOR THE RETURN
OF SPECIFIC GOODS WRONGFULLY TAKEN OR "DISTRAINED."  TYPICALLY, IT WAS
USED AFTER A LANDLORD (THE "DISTRAINOR") HAD SEIZED POSSESSIONS FROM A
TENANT (THE "DISTRAINEE") TO SATISFY A DEBT ALLEGEDLY OWED.  IF THE
TENANT THEN INSTITUTED A REPLEVIN ACTION AND POSTED SECURITY, THE
LANDLORD COULD BE ORDERED TO RETURN THE PROPERTY AT ONCE, PENDING A
FINAL JUDGMENT IN THE UNDERLYING ACTION.  /10/  HOWEVER, THIS
PREJUDGMENT REPLEVIN OF GOODS AT COMMON LAW DID NOT FOLLOW FROM AN
ENTIRELY EX PARTE PROCESS OF PLEADING BY THE DISTRAINEE.  FOR "(THE
DISTRAINOR COULD ALWAYS STOP THE ACTION OF REPLEVIN BY CLAIMING TO BE
THE OWNER OF THE GOODS; AND AS THIS CLAIM WAS OFTEN MADE MERELY TO
DELAY THE PROCEEDINGS, THE WRIT DE PROPRIETATE PROBANDA WAS DEVISED
EARLY IN THE FOURTEENTH CENTURY, WHICH ENABLED THE SHERIFF TO DETERMINE
SUMMARILY THE QUESTION OF OWNERSHIP.  IF THE QUESTION OF OWNERSHIP WAS
DETERMINED AGAINST THE DISTRAINOR THE GOODS WERE DELIVERED BACK TO THE
DISTRAINEE (PENDING FINAL JUDGMENT)."  3 W.HOLDSWORTH, HISTORY OF
ENGLISH LAW 284 (1927). 

PREJUDGMENT REPLEVIN STATUTES LIKE THOSE OF FLORIDA AND PENNSYLVANIA
ARE DERIVED FROM THIS ANCIENT POSSESSORY ACTION IN THAT THEY AUTHORIZE
THE SEIZURE OF PROPERTY BEFORE A FINAL JUDGMENT.  BUT THE SIMILARITY
ENDS THERE.  AS IN THE PRESENT CASES, SUCH STATUTES ARE MOST COMMONLY
USED BY CREDITORS TO SEIZE GOODS ALLEGEDLY WRONGFULLY DETAINED-- NOT
WRONGFULLY TAKEN-- BY DEBTORS.  AT COMMON LAW, IF A CREDITOR WISHED TO
INVOKE STATE POWER TO RECOVER GOODS WRONGFULLY DETAINED, HE HAD TO
PROCEED THROUGH THE ACTION OF DEBT OR DETINUE.  /11/  THESE ACTIONS,
HOWEVER, DID NOT PROVIDE FOR A RETURN OF PROPERTY BEFORE FINAL
JUDGMENT.  /12/  AND, MORE IMPORTANTLY, ON THE OCCASIONS WHEN THE
COMMON LAW DID ALLOW PREJUDGMENT SEIZURE BY STATE POWER, IT PROVIDED
SOME KIND OF NOTICE AND OPPORTUNITY TO BE HEARD TO THE PARTY THEN IN
POSSESSION OF THE PROPERTY, AND A STATE OFFICIAL MADE AT LEAST A
SUMMARY DETERMINATION OF THE RELATIVE RIGHTS OF THE DISPUTING PARTIES
BEFORE STEPPING INTO THE DISPUTE AND TAKING GOODS FROM ONE OF THEM. 

     IV 

FOR MORE THAN A CENTURY THE CENTRAL MEANING OF PROCEDURAL DUE
PROCESS HAS BEEN CLEAR:  "PARTIES WHOSE RIGHTS ARE TO BE AFFECTED ARE
ENTITLED TO BE HEARD; AND IN ORDER THAT THEY MAY ENJOY THAT RIGHT THEY
MUST FIRST BE NOTIFIED."  BALDWIN V. HALE, 1 WALL.  223, 233.  SEE
WINDOSR V. MCVEIGH, 93 U.S. 274; HOVEY V. ELLIOTT, 167 U.S. 409;
GRANNIS V. ORDEAN, 234 U.S. 385.  IT IS EQUALLY FUNDAMENTAL THAT THE
RIGHT TO NOTICE AND AN OPPORTUNITY TO BE HEARD "MUST BE GRANTED AT A
MEANINGFUL TIME AND IN A MEANINGFUL MANNER."  ARMSTRONG V. MANZO, 380
U.S. 545, 552. 

THE PRIMARY QUESTION IN THE PRESENT CASES IS WHETHER THESE STATE
STATUTES ARE CONSTITUTIONALLY DEFECTIVE IN FAILING TO PROVIDE FOR
HEARINGS "AT A MEANINGFUL TIME."  THE FLORIDA REPLEVIN PROCESS
GUARANTEES AN OPPORTUNITY FOR A HEARING AFTER THE SEIZURE OF GOODS, AND
THE PENNSYLVANIA PROCESS ALLOWS A POST-SEIZURE HEARING IF THE AGGRIEVED
PARTY SHOULDERS THE BURDEN OF INITIATING ONE.  BUT NEITHER THE FLORIDA
NOR THE PENNSYLVANIA STATUTE PROVIDES FOR NOTICE OR AN OPPORTUNITY TO
BE HEARD BEFORE THE SEIZURE.  THE ISSUE IS WHETHER PROCEDURAL DUE
PROCESS IN THE CONTEXT OF THESE CASES REQUIRES AN OPPORTUNITY FOR A
HEARING BEFORE THE STATE AUTHORIZES ITS AGENTS TO SEIZE PROPERTY IN THE
POSSESSION OF A PERSON UPON THE APPLICATION OF ANOTHER. 

THE CONSTITUTIONAL RIGHT TO BE HEARD IS A BASIC ASPECT OF THE DUTY
OF GOVERNMENT TO FOLLOW A FAIR PROCESS OF DECISIONMAKING WHEN IT ACTS
TO DEPRIVE A PERSON OF HIS POSSESSIONS.  THE PURPOSE OF THIS
REQUIREMENT IS NOT ONLY TO ENSURE ABSTRACT FAIR PLAY TO THE
INDIVIDUAL.  ITS PURPOSE, MORE PARTICULARLY, IS TO PROTECT HIS USE AND
POSSESSION OF PROPERTY FROM ARBITRARY ENCROACHMENT-- TO MINIMIZE
SUBSTANTIVELY UNFAIR OR MISTAKEN DEPRIVATIONS OF PROPERTY, A DANGER
THAT IS ESPECIALLY GREAT WHEN THE STATE SEIZES GOODS SIMPLY UPON THE
APPLICATION OF AND FOR THE BENEFIT OF A PRIVATE PARTY.  SO VIEWED, THE
PROHIBITION AGAINST THE DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF
LAW REFLECTS THE HIGH VALUE, EMBEDDED IN OUR CONSTITUTIONAL AND
POLITICAL HISTORY, THAT WE PLACE ON A PERSON'S RIGHT TO ENJOY WHAT IS
HIS, FREE OF GOVERNMENTAL INTERFERENCE.  SEE LYNCH V. HOUSEHOLD FINANCE
CORP., 405 U.S. 538, 552.     THE REQUIREMENT OF NOTICE AND AN
OPPORTUNITY TO BE HEARD RAISES NO IMPENETRABLE BARRIER TO THE TAKING OF
A PERSON'S POSSESSIONS.  BUT THE FAIR PROCESS OF DECISION-MAKING THAT
IT GUARANTEES WORKS, BY ITSELF, TO PROTECT AGAINST ARBITRARY
DEPRIVATION OF PROPERTY.  FOR WHEN A PERSON HAS AN OPPORTUNITY TO SPEAK
UP IN HIS OWN DEFENSE, AND WHEN THE STATE MUST LISTEN TO WHAT HE HAS TO
SAY, SUBSTANTIVELY UNFAIR AND SIMPLY MISTAKEN DEPRIVATIONS OF PROPERTY
INTERESTS CAN BE PREVENTED.  IT HAS LONG BEEN RECOGNIZED THAT "FAIRNESS
CAN RARELY BE OBTAINED BY SECRET, ONE-SIDED DETERMINATION OF FACTS
DECISIVE OF RIGHTS.  . . . (AND NO BETTER INSTRUMENT HAS BEEN DEVISED
FOR ARRIVING AT TRUTH THAN TO GIVE A PERSON IN JEOPARDY OF SERIOUS LOSS
NOTICE OF THE CASE AGAINST HIM AND OPPORTUNITY TO MEET IT."  JOINT ANTI
FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 170-172
(FRANKFURTER, J., CONCURRING). 

IF THE RIGHT TO NOTICE AND A HEARING IS TO SERVE ITS FULL PURPOSE,
THEN, IT IS CLEAR THAT IT MUST BE GRANTED AT A TIME WHEN THE
DEPRIVATION CAN STILL BE PREVENTED.  AT A LATER HEARING, AN
INDIVIDUAL'S POSSESSIONS CAN BE RETURNED TO HIM IF THEY WERE UNFAIRLY
OR MISTAKENLY TAKEN IN THE FIRST PLACE.  DAMAGES MAY EVEN BE AWARDED TO
HIM FOR THE WRONGFUL DEPRIVATION.  BUT NO LATER HEARING AND NO DAMAGE
AWARD CAN UNDO THE FACT THAT THE ARBITRARY TAKING THAT WAS SUBJECT TO
THE RIGHT OF PROCEDURAL DUE PROCESS HAS ALREADY OCCURRED.  "THIS COURT
HAS NOT . . . EMBRACED THE GENERAL PROPOSITION THAT A WRONG MAY BE DONE
IF IT CAN BE UNDONE."  STANLEY V. ILLINOIS, 405 U.S. 645, 647. 

THIS IS NO NEW PRINCIPLE OF CONSTITUTIONAL LAW.  THE RIGHT TO A
PRIOR HEARING HAS LONG BEEN RECOGNIZED BY THIS COURT UNDER THE
FOURTEENTH AND FIFTH AMENDMENTS.  ALTHOUGH THE COURT HAS HELD THAT DUE
PROCESS TOLERATES VARIANCES IN THE FORM OF A HEARING "APPROPRIATE TO
THE NATURE OF THE CASE," MULLANE V. CENTRAL HANOVER TR. CO., 339 U.S.
306, 313, AND "DEPENDING UPON THE IMPORTANCE OF THE INTERESTS INVOLVED
AND THE NATURE OF THE SUBSEQUENT PROCEEDINGS (IF ANY)," BODDIE V.
CONNECTICUT, 401 U.S. 371, 378, THE COURT HAS TRADITIONALLY INSISTED
THAT, WHATEVER ITS FORM, OPPORTUNITY FOR THAT HEARING MUST BE PROVIDED
BEFORE THE DEPRIVATION AT ISSUE TAKES EFFECT.  E.G., BELL V. BURSON,
402 U.S. 535, 542; WISCONSIN V. CONSTANTINEAU, 400 U.S. 433, 437;
GOLDBERG V. KELLY, 397 U.S. 254; ARMSTRONG V. MANZO, 380 U.S.,AT 551;
MULLANE V. CENTRAL HANOVER TR. CO., SUPRA, AT 313; OPP COTTON MILLS V.
ADMINISTRATOR, 312 U.S. 126, 152-153; UNITED STATES V. ILLINOIS CENTRAL
R. CO., 291 U.S. 457, 463; LONDONER V. CITY & COUNTY OF DENVER, 210
U.S. 373, 385-386.  SEE IN RE RUFFALO, 390 U.S. 544, 550-551.  "THAT
THE HEARING REQUIRED BY DUE PROCESS IS SUBJECT TO WAIVER, AND IS NOT
FIXED IN FORM DOES NOT AFFECT ITS ROOT REQUIREMENT THAT AN INDIVIDUAL
BE GIVEN AN OPPORTUNITY FOR A HEARING BEFORE HE IS DEPRIVED OF ANY
SIGNIFICANT PROPERTY INTEREST, EXCEPT FOR EXTRAORDINARY SITUATIONS
WHERE SOME VALID GOVERNMENTAL INTEREST IS AT STAKE THAT JUSTIFIES
POSTPONING THE HEARING UNTIL AFTER THE EVENT."  BODDIE V. CONNECTICUT,
SUPRA, AT 378-379. 

THE FLORIDA AND PENNSYLVANIA PREJUDGMENT REPLEVIN STATUTES FLY IN
THE FACE OF THIS PRINCIPLE.  TO BE SURE, THE REQUIREMENTS THAT A PARTY
SEEKING A WRIT MUST FIRST POST A BOND, ALLEGE CONCLUSORILY THAT HE IS
ENTITLED TO SPECIFIC GOODS, AND OPEN HIMSELF TO POSSIBLE LIABILITY IN
DAMAGES IF HE IS WRONG, SERVE TO DETER WHOOLY UNFOUNDED APPLICATIONS
FOR A WRIT.  BUT THOSE REQUIREMENTS ARE HARDLY A SUBSTITUTE FOR A PRIOR
HEARING, FOR THEY TEST NO MORE THAN THE STRENGTH OF THE APPLICANT'S OWN
BELIEF IN HIS RIGHTS.  /13/  SINCE HIS PRIVATE GAIN IS AT STAKE, THE
DANGER IS ALL TOO GREAT THAT HIS CONFIDENCE IN HIS CAUSE WILL BE
MISPLACED.  LAYWERS AND JUDGES ARE FAMILIAR WITH THE PHENOMENON OF A
PARTY MISTAKENLY BUT FIRMLY CONVINCED THAT HIS VIEW OF THE FACTS AND
LAW WILL PREVAIL, AND THEREFORE QUITE WILLING TO RISK THE COSTS OF
LITIGATION.  BECAUSE OF THE UNDERSTANDABLE, SELF-INTERESTED FALLIBILITY
OF LITIGANTS, A COURT DOES NOT DECIDE A DISPUTE UNTIL IT HAS HAD AN
OPPORTUNITY TO HEAR BOTH SIDES-- AND DOES NOT GENERALLY TAKE EVEN
TENTATIVE ACTION UNTIL IT HAS ITSELF EXAMINED THE SUPPORT FOR THE
PLAINTIFF'S POSITION.  THE FLORIDA AND PENNSYLVANIA STATUTES DO NOT
EVEN REQUIRE THE OFFICIAL ISSUING A WRIT OF REPLEVIN TO DO THAT MUCH. 

THE MINIMAL DETERRENT EFFECT OF A BOND REQUIREMENT IS, IN A
PRACTICAL SENSE, NO SUBSTITUTE FOR AN INFORMED EVALUATION BY A NEUTRAL
OFFICIAL.  MORE SPECIFICALLY, AS A MATTER OF CONSTITUTIONAL PRINCIPLE,
IT IS NO REPLACEMENT FOR THE RIGHT TO A PRIOR HEARING THAT IS THE ONLY
TRULY EFFECTIVE SAFEGUARD AGAINST ARBITRARY DEPRIVATION OF PROPERTY. 
WHILE THE EXISTENCE OF THESE OTHER, LESS EFFECTIVE, SAFEGUARDS MAY BE
AMONG THE CONSIDERATIONS THAT AFFECT THE FORM OF HEARING DEMANDED BY
DUE PROCESS, THEY ARE FAR FROM ENOUGH BY THEMSELVES TO OBVIATE THE
RIGHT TO A PRIOR HEARING OF SOME KIND. 

        V 

THE RIGHT TO A PRIOR HEARING, OF COURSE, ATTACHES ONLY TO THE
DEPRIVATION OF AN INTEREST ENCOMPASSED WITHIN THE FOURTEENTH
AMENDMENT'S PROTECTION.  IN THE PRESENT CASES, THE FLORIDA AND
PENNSYLVANIA STATUTES WERE APPLIED TO REPLEVY CHATTELS IN THE
APPELLANTS' POSSESSION.  THE REPLEVIN WAS NOT CAST AS A FINAL JUDGMENT;
MOST, IF NOT ALL, OF THE APPELLANTS LACKED FULL TITLE TO THE CHATTELS;
AND THEIR CLAIM EVEN TO CONTINUED POSSESSION WAS A MATTER IN DISPUTE. 
MOREOVER, THE CHATTELS AT STAKE WERE NOTHING MORE THAN AN ASSORTMENT OF
HOUSEHOLD GOODS.  NONETHELESS, IT IS CLEAR THAT THE APPELLANTS WERE
DEPRIVED OF POSSESSORY INTERESTS IN THOSE CHATTELS THAT WERE WITHIN THE
PROTECTION OF THE FOURTEENTH AMENDMENT. 

        A 

A DEPRIVATION OF A PERSON'S POSSESSIONS UNDER A PREJUDGMENT WRIT OF
REPLEVIN, AT LEAST IN THEORY, MAY BE ONLY TEMPORARY.  THE FLORIDA AND
PENNSYLVANIA STATUTES DO NOT REQUIRE A PERSON TO WAIT UNTIL A POST
SEIZURE HEARING AND FINAL JUDGMENT TO RECOVER WHAT HAS BEEN REPLEVIED. 
WITHIN THREE DAYS AFTER THE SEIZURE, THE STATUTES ALLOW HIM TO RECOVER
THE GOODS IF HE, IN RETURN, SURRENDERS OTHER PROPERTY-- A PAYMENT
NECESSARY TO SECURE A BOND IN DOUBLE THE VALUE OF THE GOODS SEIZED FROM
HIM.  /14/  BUT IT IS NOW WELL SETTLED THAT A TEMPORARY, NONFINAL
DEPRIVATION OF PROPERTY IS NONETHELESS A "DEPRIVATION" IN THE TERMS OF
THE FOURTEENTH AMENDMENT.  SNIADACH V. FAMILY FINANCE CORP., 395 U.S.
337; BELL V. BURSON, 402 U.S. 535.  BOTH SNIADACH AND BELL INVOLVED
TAKINGS OF PROPERTY PENDING A FINAL JUDGMENT IN AN UNDERLYING DISPUTE. 
IN BOTH CASES, THE CHALLENGED STATUTES INCLUDED RECOVERY PROVISIONS,
ALLOWING THE DEFENDANTS TO POST SECURITY TO QUICKLY REGAIN THE PROPERTY
TAKEN FROM THEM.  /15/  YET THE COURT FIRMLY HELD THAT THESE WERE
DEPRIVATIONS OF PROPERTY THAT HAD TO BE PRECEDED BY A FAIR HEARING. 

THE PRESENT CASES ARE NO DIFFERENT.  WHEN OFFICIALS OF FLORIDA OR
PENNSYLVANIA SEIZE ONE PIECE OF PROPERTY FROM A PERSON'S POSSESSION AND
THEN AGREE TO RETURN IT IF HE SURRENDERS ANOTHER, THEY DEPRIVE HIM OF
PROPERTY WHETHER OR NOT HE HAS THE FUNDS, THE KNOWLEDGE, AND THE TIME
NEEDED TO TAKE ADVANTAGE OF THE RECOVERY PROVISION.  THE FOURTEENTH
AMENDMENT DRAWS NO BRIGHT LINES AROUND THREE-DAY, 10-DAY OR 50-DAY
DEPRIVATIONS OF PROPERTY.  ANY SIGNIFICANT TAKING OF PROPERTY BY THE
STATE IS WITHIN THE PURVIEW OF THE DUE PROCESS CLAUSE.  WHILE THE
LENGTH AND CONSEQUENT SEVERITY OF A DEPRIVATION MAY BE ANOTHER FACTOR
TO WEIGH IN DETERMINING THE APPROPRIATE FORM OF HEARING, IT IS NOT
DECISIVE OF THE BASIC RIGHT TO A PRIOR HEARING OF SOME KIND. 

        B 

THE APPELLANTS WHO SIGNED CONDITIONAL SALES CONTRACTS LACKED FULL
LEGAL TITLE TO THE REPLEVIED GOODS.  THE FOURTEENTH AMENDMENT'S
PROTECTION OF "PROPERTY," HOWEVER, HAS NEVER BEEN INTERPRETED TO
SAFEGUARD ONLY THE RIGHTS OF UNDISPUTED OWNERSHIP.  RATHER, IT HAS BEEN
READ BROADLY TO EXTEND PROTECTION TO "ANY SIGNIFICANT PROPERTY
INTEREST," BODDIE V. CONNECTICUT, 401 U.S.,AT 379, INCLUDING STATUTORY
ENTITLEMENTS.  SEE BELL V. BURSON, 402 U.S.,AT 539; GOLDBERG V. KELLY,
397 U.S.,AT 262. 

THE APPELLANTS WERE DEPRIVED OF SUCH AN INTEREST IN THE REPLEVIED
GOODS-- THE INTEREST IN CONTINUED POSSESSION AND USE OF THE GOODS.  SEE
SNIADACH V. FAMILY FINANCE CORP., 395 U.S.,AT 342 (HARLAN, J.,
CONCURRING).  THEY HAD ACQUIRED THIS INTEREST UNDER THE CONDITIONAL
SALES CONTRACTS THAT ENTITLED THEM TO POSSESSION AND USE OF CHATTELS
BEFORE TRANSFER OF TITLE.  IN EXCHANGE FOR IMMEDIATE POSSESSION, THE
APPELLANTS HAD AGREED TO PAY A MAJOR FINANCING CHARGE BEYOND THE BASIC
PRICE OF THE MERCHANDISE.  MOREOVER, BY THE TIME THE GOODS WERE
SUMMARILY REPOSSESSED, THEY HAD MADE SUBSTANTIAL INSTALLMENT PAYMENTS. 
CLEARLY, THEIR POSSESSORY INTEREST IN THE GOODS, DEARLY BOUGHT AND
PROTECTED BY CONTRACT, /16/  WAS SUFFICIENT TO INVOKE THE PROTECTION OF
THE DUE PROCESS CLAUSE. 

THEIR ULTIMATE RIGHT TO CONTINUED POSSESSION WAS, OF COURSE, IN
DISPUTE.  IF IT WERE SHOWN AT A HEARING THAT THE APPELLANTS HAD
DEFAULTED ON THEIR CONTRACTUAL OBLIGATIONS, IT MIGHT WELL BE THAT THE
SELLERS OF THE GOODS WOULD BE ENTITLED TO REPOSSESSION.  BUT EVEN
ASSUMING THAT THE APPELLANTS HAD FALLEN BEHIND IN THEIR INSTALLMENT
PAYMENTS, AND THAT THEY HAD NO OTHER VALID DEFENSES, /17/  THAT IS
IMMATERIAL HERE.  THE RIGHT TO BE HEARD DOES NOT DEPEND UPON AN ADVANCE
SHOWING THAT ONE WILL SURELY PREVAIL AT THE HEARING.  "TO ONE WHO
PROTESTS AGAINST THE TAKING OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW,
IT IS NO ANSWER TO SAY THAT IN HIS PARTICULAR CASE DUE PROCESS OF LAW
WOULD HAVE LED TO THE SAME RESULT BECAUSE HE HAD NO ADEQUATE DEFENSE
UPON THE MERITS."  COE V. ARMOUR FERTILIZER WORKS, 237 U.S. 413, 424. 
IT IS ENOUGH TO INVOKE THE PROCEDURAL SAFEGUARDS OF THE FOURTEENTH
AMENDMENT THAT A SIGNIFICANT PROPERTY INTEREST IS AT STAKE, WHATEVER
THE ULTIMATE OUTCOME OF A HEARING ON THE CONTRACTUAL RIGHT TO CONTINUED
POSSESSION AND USE OF THE GOODS.  /18/

        C 

NEVERTHELESS, THE DISTRICT COURTS REJECTED THE APPELLANTS'
CONSTITUTIONAL CLAIM ON THE GROUND THAT THE GOODS SEIZED FROM THEM-- A
STOVE, A STEREO, A TABLE, A BED, AND SO FORTH-- WERE NOT DESERVING OF
DUE PROCESS PROTECTION, SINCE THEY WERE NOT ABSOLUTE NECESSITIES OF
LIFE.  THE COURTS BASED THIS HOLDING ON A VERY NARROW READING OF
SNIADACH V. FAMILY FINANCE CORP., SUPRA, AND GOLDBERG V. KELLY, SUPRA,
IN WHICH THIS COURT HELD THAT THE CONSTITUTION REQUIRES A HEARING
BEFORE PREJUDGMENT WAGE GARNISHMENT AND BEFORE THE TERMINATION OF
CERTAIN WELFARE BENEFITS.  THEY REASONED THAT SNIADACH AND GOLDBERT, AS
A MATTER OF CONSTITUTIONAL PRINCIPLE, ESTABLISHED NO MORE THAN THAT A
PRIOR HEARING IS REQUIRED WITH RESPECT TO THE DEPRIVATION OF SUCH
BASICALLY "NECESSARY" ITEMS AS WAGES AND WELFARE BENEFITS. 

THIS READING OF SNIADACH AND GOLDBERG REFLECTS THE PREMISE THAT
THOSE CASES MARKED A RADICAL DEPARTURE FROM ESTABLISHED PRINCIPLES OF
PROCEDURAL DUE PROCESS.  THEY DID NOT.  BOTH DECISIONS WERE IN THE
MAINSTREAM OF PAST CASES, HAVING LITTLE OR NOTHING TO DO WITH THE
ABSOLUTE "NECESSITIES" OF LIFE BUT ESTABLISHING THAT DUE PROCESS
REQUIRES AN OPPORTUNITY FOR A HEARING BEFORE A DEPRIVATION OF PROPERTY
TAKES EFFECT.  /19/  E.G., OPP COTTON MILLS V. ADMINISTRATOR, 312
U.S.,AT 152-153; UNITED STATES V. ILLINOIS CENTRAL R. CO., 291 U.S.,AT
463; SOUTHERN R. CO. V. VIRGINIA, 290 U.S. 190; LONDONER V. CITY &
COUNTY OF DENVER, 210 U.S. 373; CENTRAL OF GEORGIA V. WRIGHT, 207 U.S.
127; SECURITY TRUST CO. V. LEXINGTON, 203 U.S. 323; HIBBEN V. SMITH,
191 U.S. 310; GLIDDEN V. HARRINGTON, 189 U.S. 255.  IN NONE OF THOSE
CASES DID THE COURT HOLD THAT THIS MOST BASIC DUE PROCESS REQUIREMENT
IS LIMITED TO THE PROTECTION OF ONLY A FEW TYPES OF PROPERTY
INTERESTS.  WHILE SNIADACH AND GOLDBERG EMPHASIZED THE SPECIAL
IMPORTANCE OF WAGES AND WELFARE BENEFITS, THEY DID NOT CONVERT THAT
EMPHASIS INTO A NEW AND MORE LIMITED CONSTITUTIONAL DOCTRINE.  /20/ 

NOR DID THEY CARVE OUT A RULE OF "NECESSITY" FOR THE SORT OF NONFINAL
DEPRIVATIONS OF PROPERTY THAT THEY INVOLVED.  THAT WAS MADE CLEAR IN
BELL V. BURSON, 402 U.S. 535, HOLDING THAT THERE MUST BE AN OPPORTUNITY
FOR A FAIR HEARING BEFORE MERE SUSPENSION OF A DRIVER'S LICENSE.  A
DRIVER'S LICENSE CLEARLY DOES NOT RISE TO THE LEVEL OF "NECESSITY"
EXEMPLIFIED BY WAGES AND WELFARE BENEFITS.  RATHER, AS THE COURT
ACCURATELY STATED, IT IS AN "IMPORTANT INTEREST," ID., AT 539, ENTITLED
TO THE PROTECTION OF PROCEDURAL DUE PROCESS OF LAW. 

THE HOUSEHOLD GOODS, FOR WHICH THE APPELLANTS CONTRACTED AND PAID
SUBSTANTIAL SUMS, ARE DESERVING OF SIMILAR PROTECTION.  WHILE A
DRIVER'S LICENSE, FOR EXAMPLE, "MAY BECOME (INDIRECTLY) ESSENTIAL IN
THE PURSUIT OF A LIVELIHOOD," IBID., A STOVE OR A BED MAY BE EQUALLY
ESSENTIAL TO PROVIDE A MINIMALLY DECENT ENVIRONMENT FOR HUMAN BEINGS IN
THEIR DAY-TO-DAY LIVES.  IT IS, AFTER ALL, SUCH CONSUMER GOODS THAT
PEOPLE WORK AND EARN A LIVELIHOOD IN ORDER TO ACQUIRE. 

NO DOUBT, THERE MAY BE MANY GRADATIONS IN THE "IMPORTANCE" OR
"NECESSITY" OF VARIOUS CONSUMER GOODS.  STOVES COULD BE COMPARED TO
TELEVISION SETS, OR BEDS COULD BE COMPARED TO TABLES.  BUT IF THE ROOT
PRINCIPLE OF PROCEDURAL DUE PROCESS IS TO BE APPLIED WITH OBJECTIVITY,
IT CANNOT REST ON SUCH DISTINCTIONS.  THE FOURTEENTH AMENDMENT SPEAKS
OF "PROPERTY" GENERALLY.  AND, UNDER OUR FREE-ENTERPRISE SYSTEM, AN
INDIVIDUAL'S CHOICES IN THE MARKETPLACE ARE RESPECTED, HOWEVER UNWISE
THEY MAY SEEM TO SOMEONE ELSE.  IT IS NOT THE BUSINESS OF A COURT
ADJUDICATING DUE PROCESS RIGHTS TO MAKE ITS OWN CRITICAL EVALUATION OF
THOSE CHOICES AND PROTECT ONLY THE ONES THAT, BY ITS OWN LIGHTS, ARE
"NECESSARY."  /21/

        VI 

THERE ARE "EXTRAORDINARY SITUATIONS" THAT JUSTIFY POSTPONING NOTICE
AND OPPORTUNITY FOR A HEARING.  BODDIE V. CONNECTICUT, 401 U.S.,AT
379.  THESE SITUATIONS, HOWEVER, MUST BE TRULY UNUSUAL.  /22/  ONLY IN
A FEW LIMITED SITUATIONS HAS THIS COURT ALLOWED OUTRIGHT SEIZURE /23/
WITHOUT OPPORTUNITY FOR A PRIOR HEARING.  FIRST, IN EACH CASE, THE
SEIZURE HAS BEEN DIRECTLY NECESSARY TO SECURE AN IMPORTANT GOVERNMENTAL
OR GENERAL PUBLIC INTEREST.  SECOND, THERE HAS BEEN A SPECIAL NEED FOR
VERY PROMPT ACTION.  THIRD, THE STATE HAS KEPT STRICT CONTROL OVER ITS
MONOPOLY OF LEGITIMATE FORCE:  THE PERSON INITIATING THE SEIZURE HAS
BEEN A GOVERNMENT OFFICIAL RESPONSIBLE FOR DETERMINING, UNDER THE
STANDARDS OF A NARROWLY DRAWN STATUTE, THAT IT WAS NECESSARY AND
JUSTIFIED IN THE PARTICULAR INSTANCE.  THUS, THE COURT HAS ALLOWED
SUMMARY SEIZURE OF PROPERTY TO COLLECT THE INTERNAL REVENUE OF THE
UNITED STATES, /24/  TO MEET THE NEEDS OF A NATIONAL WAR EFFORT, /25/
TO PROTECT AGAINST THE ECONOMIC DISASTER OF A BANK FAILURE, /26/  AND
TO PROTECT THE PUBLIC FROM MISBRANDED DRUGS /27/  AND CONTAMINATED
FOOD.  /28/ 

THE FLORIDA AND PENNSYLVANIA PREJUDGMENT REPLEVIN STATUTES SERVE NO
SUCH IMPORTANT GOVERNMENTAL OR GENERAL PUBLIC INTEREST.  THEY ALLOW
SUMMARY SEIZURE OF A PERSON'S POSSESSIONS WHEN NO MORE THAN PRIVATE
GAIN IS DIRECTLY AT STAKE.  /29/  THE REPLEVIN OF CHATTELS, AS IN THE
PRESENT CASES, MAY SATISFY A DEBT OR SETTLE A SCORE.  BUT STATE
INTERVENTION IN A PRIVATE DISPUTE HARDLY COMPARES TO STATE ACTION
FURTHERING A WAR EFFORT OR PROTECTING THE PUBLIC HEALTH. 

NOR DO THE BROADLY DRAWN FLORIDA AND PENNSYLVANIA STATUTES LIMIT THE
SUMMARY SEIZURE OF GOODS TO SPECIAL SITUATIONS DEMANDING PROMPT
ACTION.  THERE MAY BE CASES IN WHICH A CREDITOR COULD MAKE A SHOWING OF
IMMEDIATE DANGER THAT A DEBTOR WILL DESTROY OR CONCEAL DISPUTED GOODS. 
BUT THE STATUTES BEFORE US ARE NOT "NARROWLY DRAWN TO MEET ANY SUCH
UNUSUAL CONDITION."  SNIADACH V. FAMILY FINANCE CORP., SUPRA, AT 339. 
AND NO SUCH UNUSUAL SITUATION IS PRESENTED BY THE FACTS OF THESE
CASES. 

THE STATUTES, MOREOVER, ABDICATE EFFECTIVE STATE CONTROL OVER STATE
POWER.  PRIVATE PARTIES, SERVING THEIR OWN PRIVATE ADVANTAGE, MAY
UNILATERALLY INVOKE STATE POWER TO REPLEVY GOODS FROM ANOTHER.  NO
STATE OFFICIAL PARTICIPATES IN THE DECISION TO SEEK A WRIT; NO STATE
OFFICIAL REVIEWS THE BASIS FOR THE CLAIM TO REPOSSESSION; AND NO STATE
OFFICIAL EVALUATES THE NEED FOR IMMEDIATE SEIZURE.  THERE IS NOT EVEN A
REQUIREMENT THAT THE PLAINTIFF PROVIDE ANY INFORMATION TO THE COURT ON
THESE MATTERS.  THE STATE ACTS LARGELY IN THE DARK.  /30/

        VII 

FINALLY, WE MUST CONSIDER THE CONTENTION THAT THE APPELLANTS WHO
SIGNED CONDITIONAL SALES CONTRACTS THEREBY WAIVED THEIR BASIC
PROCEDURAL DUE PROCESS RIGHTS.  THE CONTRACT SIGNED BY MRS. FUENTES
PROVIDED THAT "IN THE EVENT OF DEFAULT OF ANY PAYMENT OR PAYMENTS,
SELLER AT ITS OPTION MAY TAKE BACK THE MERCHANDISE.  . . . " THE
CONTRACTS SIGNED BY THE PENNSYLVANIA APPELLANTS SIMILARLY PROVIDED THAT
THE SELLER "MAY RETAKE" OR "REPOSSESS" THE MERCHANDISE IN THE EVENT OF
A "DEFAULT IN ANY PAYMENT."  THESE TERMS WERE PARTS OF PRINTED FORM
CONTRACTS, APPEARING IN RELATIVELY SMALL TYPE AND UNACCOMPANIED BY ANY
EXPLANATIONS CLARIFYING THEIR MEANING. 

IN D. H. OVERMYER CO. V. FRICK CO., 405 U.S. 174, THE COURT RECENTLY
OUTLINED THE CONSIDERATIONS RELEVANT TO DETERMINATION OF A CONTRACTUAL
WAIVER OF DUE PROCESS RIGHTS.  APPLYING THE STANDARDS GOVERNING WAIVER
OF CONSTITUTIONAL RIGHTS IN A CRIMINAL PROCEEDING /31/  -- ALTHOUGH NOT
HOLDING THAT SUCH STANDARDS MUST NECESSARILY APPLY-- THE COURT HELD
THAT, ON THE PARTICULAR FACTS OF THAT CASE, THE CONTRACTUAL WAIVER OF
DUE PROCESS RIGHTS WAS "VOLUNTARILY, INTELLIGENTLY, AND KNOWINGLY"
MADE.  ID., AT 187.  THE CONTRACT IN OVERMYER WAS NEGOTIATED BETWEEN
TWO CORPORATIONS; THE WAIVER PROVISION WAS SPECIFICALLY BARGAINED FOR
AND DRAFTED BY THEIR LAWYERS IN THE PROCESS OF THESE NEGOTIATIONS.  AS
THE COURT NOTED, IT WAS "NOT A CASE OF UNEQUAL BARGAINING POWER OR
OVERREACHING.  THE OVERMYER-FRICK AGREEMENT, FROM THE START, WAS NOT A
CONTRACT OF ADHESION."  ID., AT 186.  BOTH PARTIES WERE "AWARE OF THE
SIGNIFICANCE" OF THE WAIVER PROVISION, IBID. 

THE FACTS OF THE PRESENT CASES ARE A FAR CRY FROM THOSE OF
OVERMYER.  THERE WAS NO BARGAINING OVER CONTRACTUAL TERMS BETWEEN THE
PARTIES WHO, IN ANY EVENT, WERE FAR FROM EQUAL IN BARGAINING POWER. 
THE PURPORTED WAIVER PROVISION WAS A PRINTED PART OF A FORM SALES
CONTRACT AND A NECESSARY CONDITION OF THE SALE.  THE APPELLEES MADE NO
SHOWING WHATEVER THAT THE APPELLANTS WERE ACTUALLY AWARE OR MADE AWARE
OF THE SIGNIFICANCE OF THE FINE PRINT NOW RELIED UPON AS A WAIVER OF
CONSTITUTIONAL RIGHTS. 

THE COURT IN OVERMYER OBSERVED THAT "WHERE THE CONTRACT IS ONE OF
ADHESION, WHERE THERE IS GREAT DISPARITY IN BARGAINING POWER, AND WHERE
THE DEBTOR RECEIVES NOTHING FOR THE (WAIVER) PROVISION, OTHER LEGAL
CONSEQUENCES MAY ENSUE."  ID., AT 188.  YET, AS IN OVERMYER, THERE IS
NO NEED IN THE PRESENT CASE TO CANVASS THOSE CONSEQUENCES FULLY.  FOR A
WAIVER OF CONSTITUTIONAL RIGHTS IN ANY CONTEXT MUST, AT THE VERY LEAST,
BE CLEAR.  WE NEED NOT CONCERN OURSELVES WITH THE INVOLUNTARINESS OR
UNINTELLIGENCE OF A WAIVER WHEN THE CONTRACTUAL LANGUAGE RELIED UPON
DOES NOT, ON ITS FACE, EVEN AMOUNT TO A WAIVER. 

THE CONDITIONAL SALES CONTRACTS HERE SIMPLY PROVIDED THAT UPON A
DEFAULT THE SELLER "MAY TAKE BACK," "MAY RETAKE" OR "MAY REPOSSESS"
MERCHANDISE.  THE CONTRACTS INCLUDED NOTHING ABOUT THE WAIVER OF A
PRIOR HEARING.  THEY DID NOT INDICATE HOW OR THROUGH WHAT PROCESS-- A
FINAL JUDGMENT, SELF-HELP, PREJUDGMENT REPLEVIN WITH A PRIOR HEARING,
OR PREJUDGMENT REPLEVIN WITHOUT A PRIOR HEARING-- THE SELLER COULD TAKE
BACK THE GOODS.  RATHER, THE PURPORTED WAIVER PROVISIONS HERE ARE NO
MORE THAN A STATEMENT OF THE SELLER'S RIGHT TO REPOSSESSION UPON
OCCURRENCE OF CERTAIN EVENTS.  THE APPELLEES DO NOT SUGGEST THAT THESE
PROVISIONS WAIVED THE APPELLANTS' RIGHT TO A FULL POST-SEIZURE HEARING
TO DETERMINE WHETHER THOSE EVENTS HAD, IN FACT, OCCURRED AND TO
CONSIDER ANY OTHER AVAILABLE DEFENSES.  BY THE SAME TOKEN, THE LANGUAGE
OF THE PURPORTED WAIVER PROVISIONS DID NOT WAIVE THE APPELLANTS'
CONSTITUTIONAL RIGHT TO A PRESEIZURE HEARING OF SOME KIND. 

        VIII 

WE HOLD THAT THE FLORIDA AND PENNSYLVANIA PREJUDGMENT REPLEVIN
PROVISIONS WORK A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW
INSOFAR AS THEY DENY THE RIGHT TO A PRIOR OPPORTUNITY TO BE HEARD
BEFORE CHATTELS ARE TAKEN FROM THEIR POSSESSOR.  /32/  OUR HOLDING,
HOWEVER, IS A NARROW ONE.  WE DO NOT QUESTION THE POWER OF A STATE TO
SEIZE GOODS BEFORE A FINAL JUDGMENT IN ORDER TO PROTECT THE SECURITY
INTERESTS OF CREDITORS SO LONG AS THOSE CREDITORS HAVE TESTED THEIR
CLAIM TO THE GOODS THROUGH THE PROCESS OF A FAIR PRIOR HEARING.  THE
NATURE AND FORM OF SUCH PRIOR HEARINGS, MOREOVER, ARE LEGITIMATELY OPEN
TO MANY POTENTIAL VARIATIONS AND ARE A SUBJECT, AT THIS POINT, FOR
LEGISLATION-- NOT ADJUDICATION.  /33/ SINCE THE ESSENTIAL REASON FOR
THE REQUIREMENT OF A PRIOR HEARING IS TO PREVENT UNFAIR AND MISTAKEN
DEPRIVATIONS OF PROPERTY, HOWEVER, IT IS AXIOMATIC THAT THE HEARING
MUST PROVIDE A REAL TEST.  "(DUE PROCESS IS AFFORDED ONLY BY THE KINDS
OF 'NOTICE' AND 'HEARING' THAT ARE AIMED AT ESTABLISHING THE VALIDITY,
OR AT LEAST THE PROBABLE VALIDITY, OF THE UNDERLYING CLAIM AGAINST THE
ALLEGED DEBTOR BEFORE HE CAN BE DEPRIVED OF HIS PROPERTY.  . . . "
SNIADACH V. FAMILY FINANCE CORP., SUPRA, AT 343 (HARLAN, J.,
CONCURRING).  SEE BELL V. BURSON, SUPRA, AT 540; GOLDBERG V. KELLY,
SUPRA, AT 267. 

FOR THE FOREGOING REASONS, THE JUDGMENTS OF THE DISTRICT COURTS ARE
VACATED AND THESE CASES ARE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 70-5138, PARHAM ET AL. V. CORTESE ET AL., ON
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

/1/  SEE INFRA, AT 73-75. 

/2/  BOTH MRS. FUENTES AND THE APPELLANTS IN NO. 5138 ALSO
CHALLENGED THE PREJUDGMENT REPLEVIN PROCEDURES UNDER THE FOURTH
AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH.  WE DO NOT,
HOWEVER, REACH THAT ISSUE.  SEE N. 32, INFRA. 

/3/  NEITHER MRS. FUENTES NOR THE APPELLANTS IN NO. 5138 SOUGHT AN
INJUNCTION AGAINST ANY PENDING OR FUTURE COURT PROCEEDINGS AS SUCH. 
COMPARE YOUNGER V. HARRIS, 401 U.S. 37.  RATHER, THEY CHALLENGED ONLY
THE SUMMARY EXTRA-JUDICIAL PROCESS OF PREJUDGMENT SEIZURE OF PROPERTY
TO WHICH THEY HAD ALREADY BEEN SUBJECTED.  THEY INVOKED THE
JURISDICTION OF THE FEDERAL DISTRICT COURTS UNDER 42 U.S.C. 1983 AND 28
U.S.C. 1343(3). 

/4/  UNLIKE MRS. FUENTES IN NO. 5039, NONE OF THE APPELLANTS IN NO.
5138 WAS EVER SUED IN ANY COURT BY THE PARTY WHO INITIATED SEIZURE OF
THE PROPERTY.  SEE INFRA, AT 77-78. 

/5/  SINCE THE ANNOUNCEMENT OF THIS COURT'S DECISION IN SNIADACH V.
FAMILY FINANCE CORP., 395 U.S. 337, SUMMARY PREJUDGMENT REMEDIES HAVE
COME UNDER CONSTITUTIONAL CHALLENGE THROUGHOUT THE COUNTRY.  THE
SUMMARY DEPRIVATION OF PROPERTY UNDER STATUTES VERY SIMILAR TO THE
FLORIDA AND PENNSYLVANIA STATUTES AT ISSUE HERE HAS BEEN HELD
UNCONSTITUTIONAL BY AT LEAST TWO COURTS.  LAPREASE V. RAYMOURS
FURNITURE CO., 315 F.SUPP.  716 (NDNY); BLAIR V. PITCHESS, 5 CAL.3D
258, 486 P.2D 1242.  BUT SEE BRUNSWICK CORP. V. J. & P., INC., 424 F.2D
100 (CA10); WHEELER V. ADAMS CO., 322 F.SUPP.  645 (MD.); ALMOR
FURNITURE & APPLIANCES, INC. V. MACMILLAN, 116 N.J.SUPER.  65, 280 A.2D
862.  APPLYING SNIADACH TO OTHER CLOSELY RELATED FORMS OF SUMMARY
PREJUDGMENT REMEDIES, SOME COURTS HAVE CONSTRUED THAT DECISION AS
SETTING FORTH GENERAL PRINCIPLES OF PROCEDURAL DUE PROCESS AND HAVE
STRUCK DOWN SUCH REMEDIES.  E.G., ADAMS V. EGLEY, 338 F.SUPP.  614 (SD
CAL.); COLLINS V. THE VICEROY HOTEL CORP., 338 F.SUPP.  390 (ND ILL.);
SANTIAGO V. MCELROY, 319 F.SUPP.  284 (ED PA.); KLIM V. JONES, 315
F.SUPP.  109 (ND CAL.); RANDONE V. APPELLATE DEPT., 5 CAL.3D 536, 488
P.2D 13; LARSON V. FETHERSTON, 44 WIS.2D 712, 172 N.W.2D 20; JONES
PRESS INC. V. MOTOR TRAVEL SERVICES INC., 286 MINN. 205, 176 N.W.2D
87.  SEE LEBOWITZ V. FORBES LEASING & FINANCE CORP., 326 F.SUPP.  1335,
1341-1348 (ED PA.).  OTHER COURTS, HOWEVER, HAVE CONSTRUED SNIADACH AS
CLOSELY CONFINED TO ITS OWN FACTS AND HAVE UPHELD SUCH SUMMARY
PREJUDGMENT REMEDIES.  E.G., REEVES V. MOTOR CONTRACT CO., 324 F.SUPP. 
1011 (ND GA.); BLACK WATCH FARMS V. DICK, 323 F.SUPP.  100 (CONN.);
AMERICAN OLEAN TILE CO. V. ZIMMERMAN, 317 F.SUPP.  150 (HAWAII); YOUNG
V. RIDLEY, 309 F.SUPP.  1308 (DC); TERMPLAN, INC. V. SUPERIOR COURT OF
MARICOPA COUNTY, 105 ARIZ. 270, 463 P.2D 68; 300 WEST 154TH STREET
REALTY CO. V. DEPARTMENT OF BUILDINGS, 26 N.Y.2D 538, 260 N.E.2D 534. 

/6/  THE RELEVANT FLORIDA STATUTORY PROVISIONS ARE THE FOLLOWING: 

FLA. STAT. ANN. SEC. 78.01 (SUPP. 1972-1973): 

"RIGHT TO REPLEVIN.-- ANY PERSON WHOSE GOODS OR CHATTELS ARE
WRONGFULLY DETAINED BY ANY OTHER PERSON OR OFFICER MAY HAVE A WRIT OF
REPLEVIN TO RECOVER THEM AND ANY DAMAGES SUSTAINED BY REASON OF THE
WRONGFUL CAPTION OR DETENTION AS HEREIN PROVIDED.  OR SUCH PERSON MAY
SEEK LIKE RELIEF, BUT WITH SUMMONS TO DEFENDANT INSTEAD OF REPLEVY WRIT
IN WHICH EVENT NO BOND IS REQUIRED AND THE PROPERTY SHALL BE SEIZED
ONLY AFTER JUDGMENT, SUCH JUDGMENT TO BE IN LIKE FORM AS THAT PROVIDED
WHEN DEFENDANT HAS RETAKEN THE PROPERTY ON A FORTHCOMING BOND." 

FLA. STAT. ANN. SEC. 78.07 (SUPP. 1972-1973): 

"BOND; REQUISITES.-- BEFORE A REPLEVY WRIT ISSUES, PLAINTIFF SHALL
FILE A BOND WITH SURETY PAYABLE TO DEFENDANT TO BE APPROVED BY THE
CLERK IN AT LEAST DOUBLE THE VALUE OF THE PROPERTY TO BE REPLEVIED
CONDITIONED THAT PLAINTIFF WILL PROSECUTE HIS ACTION TO EFFECT AND
WITHOUT DELAY AND THAT IF DEFENDANT RECOVERS JUDGMENT AGAINST HIM IN
THE ACTION, HE WILL RETURN THE PROPERTY, IF RETURN THEREOF IS ADJUDGED,
AND WILL PAY DEFENDANT ALL SUMS OF MONEY RECOVERED AGAINST PLAINTIFF BY
DEFENDANT IN THE ACTION." 

FLA. STAT. ANN. SEC. 78.08 (SUPP. 1972-1973): 

"WRIT; FORM; RETURN.-- THE WRIT SHALL COMMAND THE OFFICER TO WHOM IT
MAY BE DIRECTED TO REPLEVY THE GOODS AND CHATTELS IN POSSESSION OF
DEFENDANT, DESCRIBING THEM, AND TO SUMMON THE DEFENDANT TO ANSWER THE
COMPLAINT." 

FLA. STAT. ANN. SEC. 78.10 (SUPP. 1972-1973): 

"WRIT; EXECUTION ON PROPERTY IN BUILDINGS, ETC.-- IN EXECUTING THE
WRIT OF REPLEVIN, IF THE PROPERTY OR ANY PART THEREOF IS SECRETED OR
CONCEALED IN ANY DWELLING HOUSE OR OTHER BUILDING OR ENCLOSURE, THE
OFFICER SHALL PUBLICLY DEMAND DELIVERY THEREOF AND IF IT IS NOT
DELIVERED BY THE DEFENDANT OR SOME OTHER PERSON, HE SHALL MAKE REPLEVIN
ACCORDING TO THE WRIT; AND IF NECESSARY, HE SHALL TAKE TO HIS
ASSISTANCE THE POWER OF THE COUNTY." 

FLA. STAT. ANN. SEC. 78.13 (SUPP. 1972-1973): 

"WRIT; DISPOSITION OF PROPERTY LEVIED ON.-- THE OFFICER EXECUTING
THE WRIT SHALL DELIVER THE PROPERTY TO PLAINTIFF AFTER THE LAPSE OF
THREE (3) DAYS FROM THE TIME THE PROPERTY WAS TAKEN UNLESS WITHIN THE
THREE (3) DAYS DEFENDANT GIVES BOND WITH SURETY TO BE APPROVED BY THE
OFFICER IN DOUBLE THE VALUE OF THE PROPERTY AS APPRAISED BY THE
OFFICER, CONDITIONED TO HAVE THE PROPERTY FORTHCOMING TO ABIDE THE
RESULT OF THE ACTION, IN WHICH EVENT THE PROPERTY SHALL BE REDELIVERED
TO DEFENDANT." 

/7/  THE BASIC PENNSYLVANIA STATUTORY PROVISION REGARDING THE
ISSUANCE OF WRITS OF REPLEVIN IS THE FOLLOWING: 

PA. STAT. ANN., TIT. 12, SEC. 1821.  WRITS OF REPLEVIN AUTHORIZED 

"IT SHALL AND MAY BE LAWFUL FOR THE JUSTICES OF EACH COUNTY IN THIS
PROVINCE TO GRANT WRITS OF REPLEVIN, IN ALL CASES WHATSOEVER, WHERE
REPLEVINS MAY BE GRANTED BY THE LAWS OF ENGLAND, TAKING SECURITY AS THE
SAID LAW DIRECTS, AND MAKE THEM RETURNABLE TO THE RESPECTIVE COURTS OF
COMMON PLEAS, IN THE PROPER COUNTY, THERE TO BE DETERMINED ACCORDING TO
LAW." 

THE PROCEDURAL PREREQUISITES TO ISSUANCE OF A PREJUDGMENT WRIT ARE,
HOWEVER, SET FORTH IN THE PENNSYLVANIA RULES OF CIVIL PROCEDURE.  THE
RELEVANT RULES ARE THE FOLLOWING: 

"RULE 1073.  COMMENCEMENT OF ACTION     "(A) AN ACTION OF REPLEVIN
WITH BOND SHALL BE COMMENCED BY FILING WITH THE PROTHONOTARY A PRAECIPE
FOR A WRIT OF REPLEVIN WITH BOND, TOGETHER WITH 

"(1) THE PLAINTIFF'S AFFIDAVIT OF THE VALUE OF THE PROPERTY TO BE
REPLEVIED, AND 

"(2) THE PLAINTIFF'S BOND IN DOUBLE THE VALUE OF THE PROPERTY, WITH
SECURITY APPROVED BY THE PROTHONOTARY, NAMING THE COMMONWEALTH OF
PENNSYLVANIA AS OBLIGEE, CONDITIONED THAT IF THE PLAINTIFF FAILS TO
MAINTAIN HIS RIGHT OF POSSESSION OF THE PROPERTY, HE SHALL PAY TO THE
PARTY ENTITLED THERETO THE VALUE OF THE PROPERTY AND ALL LEGAL COSTS,
FEES AND DAMAGES SUSTAINED BY REASON OF THE ISSUANCE OF THE WRIT. 
"(B) AN ACTION OF REPLEVIN WITHOUT BOND SHALL BE COMMENCED BY FILING
WITH THE PROTHONOTARY 

"(1) A PRAECIPE FOR A WRIT OF REPLEVIN WITHOUT BOND OR 

"(2) A COMPLAINT. 

"IF THE ACTION IS COMMENCED WITHOUT BOND, THE SHERIFF SHALL NOT
REPLEVY THE PROPERTY BUT AT ANY TIME BEFORE THE ENTRY OF JUDGMENT THE
PLAINTIFF, UPON FILING THE AFFIDAVIT AND BOND PRESCRIBED BY SUBDIVISION
(A) OF THIS RULE, MAY OBTAIN A WRIT OF REPLEVIN WITH BOND, ISSUED IN
THE ORIGINAL ACTION, AND HAVE THE SHERIFF REPLEVY THE PROPERTY. 

"RULE 1076.  COUNTERBOND 

"(A) A COUNTERBOND MAY BE FILED WITH THE PROTHONOTARY BY A DEFENDANT
OR INTERVENOR CLAIMING THE RIGHT TO THE POSSESSION OF THE PROPERTY,
EXCEPT A PARTY CLAIMING ONLY A LIEN THEREON, WITHIN SEVENTY-TWO (72)
HOURS AFTER THE PROPERTY HAS BEEN REPLEVIED, OR WITHIN SEVENTY-TWO (72)
HOURS AFTER SERVICE UPON THE DEFENDANT WHEN THE TAKING OF POSSESSION OF
THE PROPERTY BY THE SHERIFF HAS BEEN WAIVED BY THE PLAINTIFF AS
PROVIDED BY RULE 1077(A), OR WITHIN SUCH EXTENSION OF TIME AS MAY BE
GRANTED BY THE COURT UPON CAUSE SHOWN. 

"(B) THE COUNTERBOND SHALL BE IN THE SAME AMOUNT AS THE ORIGINAL
BOND, WITH SECURITY APPROVED BY THE PROTHONOTARY, NAMING THE
COMMONWEALTH OF PENNSYLVANIA AS OBLIGEE, CONDITIONED THAT IF THE PARTY
FILING IT FAILS TO MAINTAIN HIS RIGHT TO POSSESSION OF THE PROPERTY HE
SHALL PAY TO THE PARTY ENTITLED THERETO THE VALUE OF THE PROPERTY, AND
ALL LEGAL COSTS, FEES AND DAMAGES SUSTAINED BY REASON OF THE DELIVERY
OF THE REPLEVIED PROPERTY TO THE PARTY FILING THE COUNTERBOND. 

"RULE 1077.  DISPOSITION OF REPLEVIED PROPERTY.  SHERIFF'S RETURN 

"(A) WHEN A WRIT OF REPLEVIN WITH BOND IS ISSUED, THE SHERIFF SHALL
LEAVE THE PROPERTY DURING THE TIME ALLOWED FOR THE FILING OF A
COUNTERBOND IN THE POSSESSION OF THE DEFENDANT OR OF ANY OTHER PERSON
IF THE PLAINTIFF SO AUTHORIZES HIM IN WRITING. 

"(B) PROPERTY TAKEN INTO POSSESSION BY THE SHERIFF SHALL BE HELD BY
HIM UNTIL THE EXPIRATION OF THE TIME FOR FILING A COUNTERBOND.  IF THE
PROPERTY IS NOT ORDERED TO BE IMPOUNDED AND IF NO COUNTERBOND IS FILED,
THE SHERIFF SHALL DELIVER THE PROPERTY TO THE PLAINTIFF. 

"(C) IF THE PROPERTY IS NOT ORDERED TO BE IMPOUNDED AND THE PERSON
IN POSSESSION FILES A COUNTERBOND, THE PROPERTY SHALL BE DELIVERED TO
HIM, BUT IF HE DOES NOT FILE A COUNTERBOND, THE PROPERTY SHALL BE
DELIVERED TO THE PARTY FIRST FILING A COUNTERBOND. 

"(D) WHEN PERISHABLE PROPERTY IS REPLEVIED THE COURT MAY MAKE SUCH
ORDER RELATING TO ITS SALE OR DISPOSITION AS SHALL BE PROPER. 

"(E) THE RETURN OF THE SHERIFF TO THE WRIT OF REPLEVIN WITH BOND
SHALL STATE THE DISPOSITION MADE BY HIM OF THE PROPERTY AND THE NAME
AND ADDRESS OF ANY PERSON FOUND IN POSSESSION OF THE PROPERTY." 

/8/  PA. RULE CIV. PROC. 1073(B) DOES ESTABLISH A PROCEDURE WHEREBY
AN APPLICANT MAY OBTAIN A WRIT BY FILING A COMPLAINT, INITIATING A
LATER COURT ACTION.  SEE N. 7, SUPRA.  IN THE CASE OF EVERY APPELLANT
IN NO. 70-5138, THE APPLICANT PROCEEDED UNDER RULE 1073(A) RATHER THAN
1073(B), SEIZING PROPERTY UNDER NO MORE THAN A SECURITY BOND AND
INITIATING NO COURT ACTION. 

/9/  PA. RULE CIV. PROC. 1037(A) ESTABLISHES THE PROCEDURE FOR
INITIATING SUCH A SUIT: 

"IF AN ACTION IS NOT COMMENCED BY A COMPLAINT (UNDER RULE 1073(B)),
THE PROTHONOTARY, UPON PRAECIPE OF THE DEFENDANT, SHALL ENTER A RULE
UPON THE PLAINTIFF TO FILE A COMPLAINT.  IF A COMPLAINT IS NOT FILED
WITHIN TWENTY (20) DAYS AFTER SERVICE OF THE RULE, THE PROTHONOTARY,
UPON PRAECIPE OF THE DEFENDANT, SHALL ENTER A JUDGMENT OF NON PROS." 

NONE OF THE APPELLANTS IN NO. 70-5138 ATTEMPTED TO INITIATE THE
PROCESS TO REQUIRE THE FILING OF A POST-SEIZURE COMPLAINT UNDER RULE
1037(A). 

/10/  SEE T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 367-369
(1956); 3 W. HOLDSWORTH, HISTORY OF ENGLISH LAW 284-285 (1927); 2 F.
POLLOCK & F. MAITLAND, HISTORY OF ENGLISH LAW 577 (1909); J. COBBEY,
REPLEVIN 19-29 (1890). 

/11/  SEE PLUCKNETT, SUPRA, N. 10, AT 362-365; POLLOCK & MAITLAND,
SUPRA, N. 10, AT 173-175, 203-211. 

/12/  THE CREDITOR COULD, OF COURSE, PROCEED WITHOUT THE USE OF
STATE POWER, THROUGH SELF-HELP, BY "DISTRAINING" THE PROPERTY BEFORE A
JUDGMENT.  SEE N. 10, SUPRA. 

/13/  THEY MAY NOT EVEN TEST THAT MUCH.  FOR IF AN APPLICANT FOR THE
WRIT KNOWS THAT HE IS DEALING WITH AN UNEDUCATED, UNINFORMED CONSUMER
WITH LITTLE ACCESS TO LEGAL HELP AND LITTLE FAMILIARITY WITH LEGAL
PROCEDURES, THERE MAY BE A SUBSTANTIAL POSSIBILITY THAT A SUMMARY
SEIZURE OF PROPERTY-- HOWEVER UNWARRANTED-- MAY GO UNCHALLENGED, AND
THE APPLICANT MAY FEEL THAT HE CAN ACT WITH IMPUNITY. 

/14/  THE APPELLANTS ARGUE THAT THIS OPPORTUNITY FOR QUICK RECOVERY
EXISTS ONLY IN THEORY.  THEY ALLEGE THAT VERY FEW PEOPLE IN THEIR
POSITION ARE ABLE TO OBTAIN A RECOVERY BOND, EVEN IF THEY KNOW OF THE
POSSIBILITY.  APPELLANT FUENTES SAYS THAT IN HER CASE SHE WAS NEVER
TOLD THAT SHE COULD RECOVER THE STOVE AND STEREO AND THAT THE DEPUTY
SHERIFF SEIZING THEM GAVE THEM AT ONCE TO THE FIRESTONE AGENT, RATHER
THAN HOLDING THEM FOR THREE DAYS.  SHE FURTHER ASSERTS THAT OF 442
CASES OF PREJUDGMENT REPLEVIN IN SMALL-CLAIMS COURTS IN DADE COUNTY,
FLORIDA, IN 1969, THERE WAS NOT ONE CASE IN WHICH THE DEFENDANT TOOK
ADVANTAGE OF THE RECOVERY PROVISION. 

/15/  BELL V. BURSON, 402 U.S. 535, 536.  ALTHOUGH NOT MENTIONED IN
THE SNIADACH OPINION, THERE CLEARLY WAS A QUICK-RECOVERY PROVISION IN
THE WISCONSIN PREJUDGMENT GARNISHMENT STATUTE AT ISSUE.  WIS. STAT.
ANN. SEC. 267.21(1) (SUPP. 1970-1971).  FAMILY FINANCE CORP. V.
SNIADACH, 37 WIS.2D 163, 173-174, 154 N.W.2D 259, 265.  MR. JUSTICE
HARLAN ADVERTED TO THE RECOVERY PROVISION IN HIS CONCURRING OPINION. 
395 U.S.,AT 343. 

THESE SORTS OF PROVISIONS FOR RECOVERY OF PROPERTY BY POSTING SECURITY
ARE, OF COURSE, ENTIRELY DIFFERENT FROM THE SECURITY REQUIREMENT UPHELD
IN LINDSEY V. NORMET, 405 U.S. 56, 65.  THERE, THE COURT UPHELD A
REQUIREMENT THAT A TENANT WANTING A CONTINUANCE OF AN EVICTION HEARING
MUST POST SECURITY FOR ACCRUING RENT DURING THE CONTINUANCE.  THE
TENANT DID NOT HAVE TO POST SECURITY IN ORDER TO REMAIN IN POSSESSION
BEFORE A HEARING; RATHER, HE HAD TO POST SECURITY ONLY IN ORDER TO
OBTAIN A CONTINUANCE OF THE HEARING.  MOREOVER, THE SECURITY
REQUIREMENT IN LINDSEY WAS NOT A RECOVERY PROVISION.  FOR THE TENANT
WAS NOT DEPRIVED OF HIS POSSESSORY INTEREST EVEN FOR ONE DAY WITHOUT
OPPORTUNITY FOR A HEARING. 

/16/  THE POSSESSORY INTEREST OF ROSA WASHINGTON, AN APPELLANT IN
NO. 5138, IN HER SON'S CLOTHES, FURNITURE, AND TOYS WAS NO LESS
SUFFICIENT TO INVOKE DUE PROCESS SAFEGUARDS.  HER INTEREST WAS NOT
PROTECTED BY CONTRACT.  RATHER, IT WAS PROTECTED BY ORDINARY PROPERTY
LAW, THERE BEING A DISPUTE BETWEEN HER AND HER ESTRANGED HUSBAND OVER
WHICH OF THEM HAD A LEGAL RIGHT NOT ONLY TO CUSTODY OF THE CHILD BUT
ALSO TO POSSESSION OF THE CHATTELS. 

/17/  MRS. FUENTES ARGUES THAT FLORIDA LAW ALLOWS HER TO DEFEND ON
THE GROUND THAT FIRESTONE BREACHED ITS OBLIGATIONS UNDER THE SALES
CONTRACT BY FAILING TO REPAIR SERIOUS DEFECTS IN THE STOVE IT SOLD
HER.  WE NEED NOT CONSIDER THIS ISSUE HERE.  IT IS ENOUGH THAT THE
RIGHT TO CONTINUED POSSESSION OF THE GOODS WAS OPEN TO SOME DISPUTE AT
A HEARING SINCE THE SELLERS OF THE GOODS HAD TO SHOW, AT THE LEAST,
THAT THE APPELLANTS HAD DEFAULTED IN THEIR PAYMENTS. 

/18/  THE ISSUES DECISIVE OF THE ULTIMATE RIGHT TO CONTINUED
POSSESSION, OF COURSE, MAY BE QUITE SIMPLE.  THE SIMPLICITY OF THE
ISSUES MIGHT BE RELEVANT TO THE FORMALITY OR SCHEDULING OF A PRIOR
HEARING.  SEE LINDSEY V. NORMET, 405 U.S.,AT 65.  BUT IT CERTAINLY
CANNOT UNDERCUT THE RIGHT TO A PRIOR HEARING OF SOME KIND. 

/19/  THE SUPREME COURT OF CALIFORNIA RECENTLY PUT THE MATTER
ACCURATELY:  "SNIADACH DOES NOT MARK A RADICAL DEPARTURE IN
CONSTITUTIONAL ADJUDICATION.  IT IS NOT A RIVULET OF WAGE GARNISHMENT
BUT PART OF THE MAINSTREAM OF THE PAST PROCEDURAL DUE PROCESS DECISIONS
OF THE UNITED STATES SUPREME COURT."  RANDONE V. APPELLATE DEPT., 5
CAL.3D 536, 550, 488 P.2D 13, 22. 

/20/  SNIADACH V. FAMILY FINANCE CORP., SUPRA, AT 340; GOLDBERG V.
KELLY, 397 U.S. 254, 264.  OF COURSE, THE PRIMARY ISSUE IN GOLDBERG WAS
THE FORM OF HEARING DEMANDED BY DUE PROCESS BEFORE TERMINATION OF
WELFARE BENEFITS; THE IMPORTANCE OF WELFARE WAS DIRECTLY RELEVANT TO
THAT QUESTION. 

/21/  THE RELATIVE WEIGHT OF LIBERTY OR PROPERTY INTERESTS IS
RELEVANT, OF COURSE, TO THE FORM OF NOTICE AND HEARING REQUIRED BY DUE
PROCESS.  SEE, E.G., BODDIE V. CONNECTICUT, 401 U.S. 371, 378, AND
CASES CITED THEREIN.  BUT SOME FORM OF NOTICE AND HEARING-- FORMAL OR
INFORMAL-- IS REQUIRED BEFORE DEPRIVATION OF A PROPERTY INTEREST THAT
"CANNOT BE CHARACTERIZED AS DE MINIMIS."  SNIADACH V. FAMILY FINANCE
CORP., SUPRA, AT 342 (HARLAN, J., CONCURRING). 

/22/  A PRIOR HEARING ALWAYS IMPOSES SOME COSTS IN TIME, EFFORT, AND
EXPENSE, AND IT IS OFTEN MORE EFFICIENT TO DISPENSE WITH THE
OPPORTUNITY FOR SUCH A HEARING.  BUT THESE RATHER ORDINARY COSTS CANNOT
OUTWEIGH THE CONSTITUTIONAL RIGHT.  SEE BELL V. BURSON, SUPRA, AT 540
541; GOLDBERG V. KELLY, SUPRA, AT 261.  PROCEDURAL DUE PROCESS IS NOT
INTENDED TO PROMOTE EFFICIENCY OR ACCOMMODATE ALL POSSIBLE INTERESTS:
IT IS INTENDED TO PROTECT THE PARTICULAR INTERESTS OF THE PERSON WHOSE
POSSESSIONS ARE ABOUT TO BE TAKEN. 

"THE ESTABLISHMENT OF PROMPT EFFICACIOUS PROCEDURES TO ACHIEVE
LEGITIMATE STATE ENDS IS A PROPER STATE INTEREST WORTHY OF COGNIZANCE
IN CONSTITUTIONAL ADJUDICATION.  BUT THE CONSTITUTION RECOGNIZES HIGHER
VALUES THAN SPEED AND EFFICIENCY.  INDEED, ONE MIGHT FAIRLY SAY OF THE
BILL OF RIGHTS IN GENERAL, AND THE DUE PROCESS CLAUSE IN PARTICULAR,
THAT THEY WERE DESIGNED TO PROTECT THE FRAGILE VALUES OF A VULNERABLE
CITIZENRY FROM THE OVERBEARING CONCERN FOR EFFICIENCY AND EFFICACY THAT
MAY CHARACTERIZE PRAISEWORTHY GOVERNMENT OFFICIALS NO LESS, AND PERHAPS
MORE, THAN MEDIOCRE ONES."  STANLEY V. ILLINOIS, 405 U.S. 645, 656. 

/23/  OF COURSE, OUTRIGHT SEIZURE OF PROPERTY IS NOT THE ONLY KIND
OF DEPRIVATION THAT MUST BE PRECEDED BY A PRIOR HEARING.  SEE, E.G.,
SNIADACH V. FAMILY FINANCE CORP., SUPRA.  IN THREE CASES, THE COURT HAS
ALLOWED THE ATTACHMENT OF PROPERTY WITHOUT A PRIOR HEARING.  IN ONE,
THE ATTACHMENT WAS NECESSARY TO PROTECT THE PUBLIC AGAINST THE SAME
SORT OF IMMEDIATE HARM INVOLVED IN THE SEIZURE CASES-- A BANK FAILURE. 
COFFIN BROS. & CO. V. BENNETT, 277 U.S. 29.  ANOTHER CASE INVOLVED
ATTACHMENT NECESSARY TO SECURE JURISDICTION IN STATE COURT-- CLEARLY A
MOST BASIC AND IMPORTANT PUBLIC INTEREST.  OWNBEY V. MORGAN, 256 U.S.
94.  IT IS MUCH LESS CLEAR WHAT INTERESTS WERE INVOLVED IN THE THIRD
CASE, DECIDED WITH AN UNEXPLICATED PER CURIAM OPINION SIMPLY CITING
COFFIN BROS. AND OWNBEY.  MCKAY V. MCINNES, 279 U.S. 820.  AS FAR AS
ESSENTIAL PROCEDURAL DUE PROCESS DOCTRINE GOES, MCKAY CANNOT STAND FOR
ANY MORE THAN WAS ESTABLISHED IN THE COFFIN BROS. AND OWNBEY CASES ON
WHICH IT RELIED COMPLETELY.  SEE SNIADACH V. FAMILY FINANCE CORP.,
SUPRA, AT 340; ID., AT 344 (HARLAN, J., CONCURRING). 

IN CASES INVOLVING DEPRIVATION OF OTHER INTERESTS, SUCH AS
GOVERNMENT EMPLOYMENT, THE COURT SIMILARLY HAS REQUIRED AN UNUSUALLY
IMPORTANT GOVERNMENTAL NEED TO OUTWEIGH THE RIGHT TO A PRIOR HEARING. 
SEE, E.G., CAFETERIA WORKERS V. MCELROY, 367 U.S. 886, 895-896. 

SEIZURE UNDER A SEARCH WARRANT IS QUITE A DIFFERENT MATTER, SEE N.
30, INFRA. 

/24/  PHILLIPS V. COMMISSIONER, 283 U.S. 589.  THE COURT STATED THAT
"(DELAY IN THE JUDICIAL DETERMINATION OF PROPERTY RIGHTS IS NOT
UNCOMMON WHERE IT IS ESSENTIAL THAT GOVERNMENTAL NEEDS BE IMMEDIATELY
SATISFIED."  ID., AT 597.  THE COURT, THEN RELIED ON "THE NEED OF THE
GOVERNMENT PROMPTLY TO SECURE ITS REVENUES."  ID., AT 596. 

/25/  CENTRAL UNION TRUST CO. V. GARVAN, 254 U.S. 554, 566; STOEHR
V. WALLACE, 255 U.S. 239, 245; UNITED STATES V. PFITSCH, 256 U.S. 547,
553. 

/26/  FAHEY V. MALLONEE, 332 U.S. 245. 

/27/  EWING V. MYTINGER & CASSELBERRY, INC., 339 U.S. 594. 

/28/  NORTH AMERICAN STORAGE CO. V. CHICAGO, 211 U.S. 306. 

/29/  BY ALLOWING REPOSSESSION WITHOUT AN OPPORTUNITY FOR A PRIOR
HEARING, THE FLORIDA AND PENNSYLVANIA STATUTES MAY BE INTENDED
SPECIFICALLY TO REDUCE THE COSTS FOR THE PRIVATE PARTY SEEKING TO SEIZE
GOODS IN ANOTHER PARTY'S POSSESSION.  EVEN IF THE PRIVATE GAIN AT STAKE
IN REPOSSESSION ACTIONS WERE EQUAL TO THE GREAT PUBLIC INTERESTS
RECOGNIZED IN THIS COURT'S PAST DECISIONS, SEE NN. 24-28, SUPRA, THE
COURT HAS MADE CLEAR THAT THE AVOIDANCE OF THE ORDINARY COSTS IMPOSED
BY THE OPPORTUNITY FOR A HEARING IS NOT SUFFICIENT TO OVERRIDE THE
CONSTITUTIONAL RIGHT.  SEE N. 22, SUPRA.  THE APPELLEES ARGUE THAT THE
COST OF HOLDING HEARINGS MAY BE ESPECIALLY ONEROUS IN THE CONTEXT OF
THE CREDITOR-DEBTOR RELATIONSHIP.  BUT THE COURT'S HOLDING IN SNIADACH
V. FAMILY FINANCE CORP., SUPRA, INDISPUTABLY DEMONSTRATES THAT ORDINARY
HEARING COSTS ARE NO MORE ABLE TO OVERRIDE DUE PROCESS RIGHTS IN THE
CREDITOR-DEBTOR CONTEXT THAN IN OTHER CONTEXTS. 

IN ANY EVENT, THE AGGREGATE COST OF AN OPPORTUNITY TO BE HEARD
BEFORE REPOSSESSION SHOULD NOT BE EXAGGERATED.  FOR WE DEAL HERE ONLY
WITH THE RIGHT TO AN OPPORTUNITY TO BE HEARD.  SINCE THE ISSUES AND
FACTS DECISIVE OF RIGHTS IN REPOSSESSION SUITS MAY VERY OFTEN BE QUITE
SIMPLE, THERE IS A LIKELIHOOD THAT MANY DEFENDANTS WOULD FORGO THEIR
OPPORTUNITY, SENSING THE FUTILITY OF THE EXERCISE IN THE PARTICULAR
CASE.  AND, OF COURSE, NO HEARING NEED BE HELD UNLESS THE DEFENDANT,
HAVING RECEIVED NOTICE OF HIS OPPORTUNITY, TAKES ADVANTAGE OF IT. 
/30/  THE SEIZURE OF POSSESSIONS UNDER A WRIT OF REPLEVIN IS ENTIRELY
DIFFERENT FROM THE SEIZURE OF POSSESSIONS UNDER A SEARCH WARRANT. 
FIRST, A SEARCH WARRANT IS GENERALLY ISSUED TO SERVE A HIGHLY IMPORTANT
GOVERNMENTAL NEED-- E.G., THE APPREHENSION AND CONVICTION OF CRIMINALS-
RATHER THAN THE MERE PRIVATE ADVANTAGE OF A PRIVATE PARTY IN AN
ECONOMIC TRANSACTION.  SECOND, A SEARCH WARRANT IS GENERALLY ISSUED IN
SITUATIONS DEMANDING PROMPT ACTION.  THE DANGER IS ALL TOO OBVIOUS THAT
A CRIMINAL WILL DESTROY OR HIDE EVIDENCE OR FRUITS OF HIS CRIME IF
GIVEN ANY PRIOR NOTICE.  THIRD, THE FOURTH AMENDMENT GUARANTEES THAT
THE STATE WILL NOT ISSUE SEARCH WARRANTS MERELY UPON THE CONCLUSORY
APPLICATION OF A PRIVATE PARTY.  IT GUARANTEES THAT THE STATE WILL NOT
ABDICATE CONTROL OVER THE ISSUANCE OF WARRANTS AND THAT NO WARRANT WILL
BE ISSUED WITHOUT A PRIOR SHOWING OF PROBABLE CAUSE.  THUS, OUR
DECISION TODAY IN NO WAY IMPLIES THAT THERE MUST BE OPPORTUNITY FOR AN
ADVERSARY HEARING BEFORE A SEARCH WARRANT IS ISSUED.  BUT CF. A
QUANTITY OF BOOKS V. KANSAS, 378 U.S. 205. 

/31/  SEE BRADY V. UNITED STATES, 397 U.S. 742, 748; JOHNSON V.
ZERBST, 304 U.S. 458, 464.  IN THE CIVIL AREA, THE COURT HAS SAID THAT
"(WE DO NOT PRESUME ACQUIESCENCE IN THE LOSS OF FUNDAMENTAL RIGHTS,"
OHIO BELL TEL. CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292, 307. 
INDEED, IN THE CIVIL NO LESS THAN THE CRIMINAL AREA, "COURTS INDULGE
EVERY REASONABLE PRESUMPTION AGAINST WAIVER."  AETNA INS. CO. V.
KENNEDY, 301 U.S. 389, 393. 

/32/  WE DO NOT REACH THE APPELLANTS' ARGUMENT THAT THE FLORIDA AND
PENNSYLVANIA STATUTORY PROCEDURES VIOLATE THE FOURTH AMENDMENT, MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH.  SEE N. 2, SUPRA.  FOR ONCE
A PRIOR HEARING IS REQUIRED, AT WHICH THE APPLICANT FOR A WRIT MUST
ESTABLISH THE PROBABLE VALIDITY OF HIS CLAIM FOR REPOSSESSION, THE
FOURTH AMENDMENT PROBLEM MAY WELL BE OBVIATED.  THERE IS NO NEED FOR US
TO DECIDE THAT QUESTION AT THIS POINT. 

/33/  LEEWAY REMAINS TO DEVELOP A FORM OF HEARING THAT WILL MINIMIZE
UNNECESSARY COST AND DELAY WHILE PRESERVING THE FAIRNESS AND
EFFECTIVENESS OF THE HEARING IN PREVENTING SEIZURES OF GOODS WHERE THE
PARTY SEEKING THE WRIT HAS LITTLE PROBABILITY OF SUCCEEDING ON THE
MERITS OF THE DISPUTE. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST DID NOT PARTICIPATE IN
THE CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

BECAUSE THE COURT'S OPINION AND JUDGMENT IMPROVIDENTLY, IN MY VIEW,
CALL INTO QUESTION IMPORTANT ASPECTS OF THE STATUTES OF ALMOST ALL THE
STATES GOVERNING SECURED TRANSACTIONS AND THE PROCEDURE FOR
REPOSSESSING PERSONAL PROPERTY, I MUST DISSENT FOR THE REASONS THAT
FOLLOW. 

FIRST:  IT IS MY VIEW THAT WHEN THE FEDERAL ACTIONS WERE FILED IN
THESE CASES AND THE RESPECTIVE DISTRICT COURTS PROCEEDED TO JUDGMENT
THERE WERE STATE COURT PROCEEDINGS IN PROGRESS.  IT SEEMS APPARENT TO
ME THAT THE JUDGMENTS SHOULD BE VACATED AND THE DISTRICT COURTS
INSTRUCTED TO RECONSIDER THESE CASES IN THE LIGHT OF THE PRINCIPLES
ANNOUNCED IN YOUNGER V. HARRIS, 401 U.S. 37 (1971); SAMUELS V. MACKELL,
401 U.S. 66; BOYLE V. LANDRY, 401 U.S. 77; AND PEREZ V. LEDESMA, 401
U.S. 82. 

IN NO. 70-5039, THE FLORIDA STATUTES PROVIDE FOR THE COMMENCEMENT OF
AN ACTION OF REPLEVIN, WITH BOND, BY SERVING A WRIT SUMMONING THE
DEFENDANT TO ANSWER THE COMPLAINT.  THEREUPON THE SHERIFF MAY SEIZE THE
PROPERTY, SUBJECT TO REPOSSESSION BY DEFENDANT WITHIN THREE DAYS UPON
FILING OF A COUNTERBOND, FAILING WHICH THE PROPERTY IS DELIVERED TO
PLAINTIFF TO AWAIT FINAL JUDGMENT IN THE REPLEVIN ACTION.  FLA. STAT.
ANN. SEC. 78.01 ET SEQ. (SUPP. 1972-1973).  THIS PROCEDURE WAS ATTACKED
IN A COMPLAINT FILED BY APPELLANT FUENTES IN THE FEDERAL COURT,
ALLEGING THAT AN AFFIDAVIT IN REPLEVIN HAD BEEN FILED BY FIRESTONE TIRE
& RUBBER CO. IN THE SMALL CLAIMS COURT OF DADE COUNTY; THAT A WRIT OF
REPLEVIN HAD BEEN ISSUED PURSUANT THERETO AND DULY SERVED, TOGETHER
WITH THE AFFIDAVIT AND COMPLAINT; AND THAT A TRIAL DATE HAD BEEN SET IN
THE SMALL CLAIMS COURT.  FIRESTONE'S ANSWER ADMITTED THAT THE REPLEVIN
ACTION WAS PENDING IN THE SMALL CLAIMS COURT AND ASSERTED THAT MRS.
FUENTES, PLAINTIFF IN THE FEDERAL COURT AND APPELLANT HERE, HAD NOT
DENIED HER DEFAULT OR ALLEGED THAT SHE HAD THE RIGHT TO POSSESSION OF
THE PROPERTY.  CLEARLY, STATE COURT PROCEEDINGS WERE PENDING, NO BAD
FAITH OR HARASSMENT WAS ALLEGED, AND NO IRREPARABLE INJURY APPEARED
THAT COULD NOT HAVE BEEN AVERTED BY RAISING CONSTITUTIONAL OBJECTIONS
IN THE PENDING STATE COURT PROCEEDING.  IN THIS POSTURE, IT WOULD
APPEAR THAT THE CASE SHOULD BE RECONSIDERED UNDER YOUNGER V. HARRIS AND
COMPANION CASES, WHICH WERE ANNOUNCED AFTER THE DISTRICT COURT'S
JUDGMENT. 

IN NO. 70-5138, PENNSYLVANIA RULE OF CIVIL PROCEDURE 1073 EXPRESSLY
PROVIDES THAT AN "(ACTION OF REPLEVIN WITH BOND SHALL BE COMMENCED BY
FILING WITH THE PROTHONOTARY A PRAECIPE FOR A WRIT OF REPLEVIN WITH
BOND.  . . . "  WHEN THE WRIT ISSUES AND IS SERVED, THE DEFENDANT HAS
THREE DAYS TO FILE A COUNTERBOND AND SHOULD HE CARE TO HAVE A HEARING
HE MAY FILE HIS OWN PRAECIPE, IN WHICH EVENT THE PLAINTIFF MUST PROCEED
FURTHER IN THE ACTION BY FILING AND SERVING HIS COMPLAINT. 

IN THE CASES BEFORE US, ACTIONS IN REPLEVIN WERE COMMENCED IN
ACCORDANCE WITH THE RULES, AND APPELLEE SEARS, ROEBUCK & CO. URGED IN
THE DISTRICT COURT THAT PLAINTIFFS HAD "ADEQUATE REMEDIES AT LAW WHICH
THEY COULD PURSUE IN THE STATE COURT PROCEEDINGS WHICH ARE STILL
PENDING IN ACCORDANCE WITH THE STATUTES AND RULES OF PENNSYLVANIA." 
APP. 60.  UNDER YOUNGER V. HARRIS AND COMPANION CASES, THE DISTRICT
COURT'S JUDGMENT SHOULD BE VACATED AND THE CASE RECONSIDERED. 

SECOND:  IT GOES WITHOUT SAYING THAT IN THE TYPICAL INSTALLMENT SALE
OF PERSONAL PROPERTY BOTH SELLER AND BUYER HAVE INTERESTS IN THE
PROPERTY UNTIL THE PURCHASE PRICE IS FULLY PAID, THE SELLER EARLY IN
THE TRANSACTION OFTEN HAVING MORE AT STAKE THAN THE BUYER.  NOR IS IT
DISPUTED THAT THE BUYER'S RIGHT TO POSSESSION IS CONDITIONED UPON HIS
MAKING THE STIPULATED PAYMENTS AND THAT UPON DEFAULT THE SELLER IS
ENTITLED TO POSSESSION.  FINALLY, THERE IS NO QUESTION IN THESE CASES
THAT IF DEFAULT IS DISPUTED BY THE BUYER HE HAS THE OPPORTUNITY FOR A
FULL HEARING, AND THAT IF HE PREVAILS HE MAY HAVE THE PROPERTY OR ITS
FULL VALUE AS DAMAGES. 

THE NARROW ISSUE, AS THE COURT NOTES, IS WHETHER IT COMPORTS WITH
DUE PROCESS TO PERMIT THE SELLER, PENDING FINAL JUDGMENT, TO TAKE
POSSESSION OF THE PROPERTY THROUGH A WRIT OF REPLEVIN SERVED BY THE
SHERIFF WITHOUT AFFORDING THE BUYER OPPORTUNITY TO INSIST THAT THE
SELLER ESTABLISH AT A HEARING THAT THERE IS REASONABLE BASIS FOR HIS
CLAIM OF DEFAULT.  THE INTERESTS OF THE BUYER AND SELLER ARE OBVIOUSLY
ANTAGONISTIC DURING THIS INTERIM PERIOD:  THE BUYER WANTS THE USE OF
THE PROPERTY PENDING FINAL JUDGMENT; THE SELLER'S INTEREST IS TO
PREVENT FURTHER USE AND DETERIORATION OF HIS SECURITY.  BY THE FLORIDA
AND PENNSYLVANIA LAWS THE PROPERTY IS TO ALL INTENTS AND PURPOSES
PLACED IN CUSTODY AND IMMOBILIZED DURING THIS TIME.  THE BUYER LOSES
USE OF THE PROPERTY TEMPORARILY BUT IS PROTECTED AGAINST LOSS; THE
SELLER IS PROTECTED AGAINST DETERIORATION OF THE PROPERTY BUT MUST
UNDERTAKE BY BOND TO MAKE THE BUYER WHOLE IN THE EVENT THE LATTER
PREVAILS. 

IN CONSIDERING WHETHER THIS RESOLUTION OF CONFLICTING INTERESTS IS
UNCONSTITUTIONAL, MUCH DEPENDS ON ONE'S PERCEPTIONS OF THE PRACTICAL
CONSIDERATIONS INVOLVED.  THE COURT HOLDS IT CONSTITUTIONALLY ESSENTIAL
TO AFFORD OPPORTUNITY FOR A PROBABLE-CAUSE HEARING PRIOR TO
REPOSSESSION.  ITS STATED PURPOSE IS "TO PREVENT UNFAIR AND MISTAKEN
DEPRIVATIONS OF PROPERTY."  BUT IN THESE TYPICAL SITUATIONS, THE BUYER
DEBTOR HAS EITHER DEFAULTED OR HE HAS NOT.  IF THERE IS A DEFAULT, IT
WOULD SEEM NOT ONLY "FAIR," BUT ESSENTIAL, THAT THE CREDITOR BE ALLOWED
TO REPOSSESS; AND I CANNOT SAY THAT THE LIKELIHOOD OF A MISTAKEN CLAIM
OF DEFAULT IS SUFFICIENTLY REAL OR RECURRING TO JUSTIFY A BROAD
CONSTITUTIONAL REQUIREMENT THAT A CREDITOR DO MORE THAN THE TYPICAL
STATE LAW REQUIRES AND PERMITS HIM TO DO.  SELLERS ARE NORMALLY IN THE
BUSINESS OF SELLING AND COLLECTING THE PRICE FOR THEIR MERCHANDISE.  I
COULD BE QUITE WRONG, BUT IT WOULD NOT SEEM IN THE CREDITOR'S INTEREST
FOR A DEFAULT OCCASIONING REPOSSESSION TO OCCUR; AS A PRACTICAL MATTER
IT WOULD MUCH BETTER SERVE HIS INTERESTS IF THE TRANSACTION GOES
FORWARD AND IS COMPLETED AS PLANNED.  DOLLAR-AND-CENTS CONSIDERATIONS
WEIGH HEAVILY AGAINST FALSE CLAIMS OF DEFAULT AS WELL AS AGAINST
PRECIPITATE ACTION THAT WOULD ALLOW NO OPPORTUNITY FOR MISTAKES TO
SURFACE AND BE CORRECTED.  /1/  NOR DOES IT SEEM TO ME THAT CREDITORS
WOULD LIGHTLY UNDERTAKE THE EXPENSE OF INSTITUTING REPLEVIN ACTIONS AND
PUTTING UP BONDS. 

THE COURT RELIES ON PRIOR CASES, PARTICULARLY GOLDBERG V. KELLY, 397
U.S. 254 (1970); BELL V. BURSON, 402 U.S. 535 (1971); AND STANLEY V.
ILLINOIS, 405 U.S. 645 (1972).  BUT THESE CASES PROVIDE NO AUTOMATIC
TEST FOR DETERMINING WHETHER AND WHEN DUE PROCESS OF LAW REQUIRES
ADVERSARY PROCEEDINGS.  INDEED, "(THE VERY NATURE OF DUE PROCESS
NEGATES ANY CONCEPT OF INFLEXIBLE PROCEDURES UNIVERSALLY APPLICABLE TO
EVERY IMAGINABLE SITUATION.  . . . "  "(WHAT PROCEDURES DUE PROCESS MAY
REQUIRE UNDER ANY GIVEN SET OF CIRCUMSTANCES MUST BEGIN WITH A
DETERMINATION OF THE PRECISE NATURE OF THE GOVERNMENT FUNCTION INVOLVED
AS WELL AS OF THE PRIVATE INTEREST THAT HAS BEEN AFFECTED BY
GOVERNMENTAL ACTION."  CAFETERIA WORKERS V. MCELROY, 367 U.S. 886, 895
(1961).  SEE ALSO STANLEY V. ILLINOIS, SUPRA, AT 650; GOLDBERG V.
KELLY, SUPRA, AT 263.  VIEWING THE ISSUE BEFORE US IN THIS LIGHT, I
WOULD NOT CONSTRUE THE DUE PROCESS CLAUSE TO REQUIRE THE CREDITORS TO
DO MORE THAN THEY HAVE DONE IN THESE CASES TO SECURE POSSESSION PENDING
FINAL HEARING.  CERTAINLY, I WOULD NOT IGNORE, AS THE COURT DOES, THE
CREDITOR'S INTEREST IN PREVENTING FURTHER USE AND DETERIORATION OF THE
PROPERTY IN WHICH HE HAS SUBSTANTIAL INTEREST.  SURELY UNDER THE
COURT'S OWN DEFINITION, THE CREDITOR HAS A "PROPERTY" INTEREST AS
DESERVING OF PROTECTION AS THAT OF THE DEBTOR.  AT LEAST THE DEBTOR,
WHO IS VERY LIKELY UNINTERESTED IN A SPEEDY RESOLUTION THAT COULD
TERMINATE HIS USE OF THE PROPERTY, SHOULD BE REQUIRED TO MAKE THOSE
PAYMENTS, INTO COURT OR OTHERWISE, UPON WHICH HIS RIGHT TO POSSESSION
IS CONDITIONED.  CF. LINDSEY V. NORMET, 405 U.S. 56 (1972). 

THIRD:  THE COURT'S RHETORIC IS SEDUCTIVE, BUT IN END ANALYSIS, THE
RESULT IT REACHES WILL HAVE LITTLE IMPACT AND REPRESENTS NO MORE THAN
IDEOLOGICAL TINKERING WITH STATE LAW.  IT WOULD APPEAR THAT CREDITORS
COULD WITHSTAND ATTACK UNDER TODAY'S OPINION SIMPLY BY MAKING CLEAR IN
THE CONTROLLING CREDIT INSTRUMENTS THAT THEY MAY RETAKE POSSESSION
WITHOUT A HEARING, OR, FOR THAT MATTER, WITHOUT RESORT TO JUDICIAL
PROCESS AT ALL.  ALTERNATIVELY, THEY NEED ONLY GIVE A FEW DAYS' NOTICE
OF A HEARING, TAKE POSSESSION IF HEARING IS WAIVED OR IF THERE IS
DEFAULT; AND IF HEARING IS NECESSARY MERELY ESTABLISH PROBABLE CAUSE
FOR ASSERTING THAT DEFAULT HAS OCCURRED.  IT IS VERY DOUBTFUL IN MY
MIND THAT SUCH A HEARING WOULD IN FACT RESULT IN PROTECTIONS FOR THE
DEBTOR SUBSTANTIALLY DIFFERENT FROM THOSE THE PRESENT LAWS PROVIDE.  ON
THE CONTRARY, THE AVAILABILITY OF CREDIT MAY WELL BE DIMINISHED OR, IN
ANY EVENT, THE EXPENSE OF SECURING IT INCREASED. 

NONE OF THIS SEEMS WORTH THE CANDLE TO ME.  THE PROCEDURE THAT THE
COURT STRIKES DOWN IS NOT SOME BARBARIC HANGOVER FROM BYGONE DAYS.  THE
RESPECTIVE RIGHTS OF THE PARTIES IN SECURED TRANSACTIONS HAVE UNDERGONE
THE MOST INTENSIVE ANALYSIS IN RECENT YEARS.  THE UNIFORM COMMERCIAL
CODE, WHICH NOW SO PERVASIVELY GOVERNS THE SUBJECT MATTER WITH WHICH IT
DEALS, PROVIDES IN ART. 9, SEC. 9-503, THAT:

     "UNLESS OTHERWISE AGREED A SECURED PARTY HAS ON DEFAULT THE

  RIGHT TO TAKE POSSESSION OF THE COLLATERAL.  IN TAKING POSSESSION

  A SECURED PARTY MAY PROCEED WITHOUT JUDICIAL PROCESS IF THIS CAN

  BE DONE WITHOUT BREACH OF THE PEACE OR MAY PROCEED BY ACTION.  .
.

  . "

RECENT STUDIES HAVE SUGGESTED NO CHANGES IN ART. 9 IN THIS RESPECT. 
SEE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, REVIEW
COMMITTEE FOR ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE, FINAL REPORT,
SEC. 9-503 (APRIL 25, 1971).  I AM CONTENT TO REST ON THE JUDGMENT OF
THOSE WHO HAVE WRESTLED WITH THESE PROBLEMS SO LONG AND OFTEN AND UPON
THE JUDGMENT OF THE LEGISLATURES THAT HAVE CONSIDERED AND SO RECENTLY
ADOPTED PROVISIONS THAT CONTEMPLATE PRECISELY WHAT HAS HAPPENED IN
THESE CASES. 

/1/  APPELLANTS PAUL AND ELLEN PARHAM ADMITTED IN THEIR COMPLAINTS
THAT THEY WERE DELINQUENT IN THEIR PAYMENTS.  THEY STIPULATED TO THIS
EFFECT AS WELL AS TO RECEIPT OF NOTICES OF DELINQUENCY PRIOR TO
INSTITUTION OF THE REPLEVIN ACTION, AND THE DISTRICT COURT SO FOUND. 

APPELLANT EPPS ALLEGED IN HIS COMPLAINT THAT HE WAS NOT IN DEFAULT. 
THE DEFENDANT, GOVERNMENT EMPLOYEES EXCHANGE CORP., ANSWERED THAT EPPS
WAS IN DEFAULT IN THE AMOUNT OF $311.25 AS OF AUGUST 9, 1970, THAT THE
ENTIRE SUM DUE HAD BEEN DEMANDED IN ACCORDANCE WITH THE RELEVANT
DOCUMENTS, AND THAT EPPS HAD FAILED AND REFUSED TO PAY THAT SUM.  THE
DISTRICT COURT DID NOT RESOLVE THIS FACTUAL DISPUTE.  IT DID FIND THAT
EPPS EARNED IN EXCESS OF $10,000 PER YEAR AND THAT THE AGREEMENTS EPPS
AND PARHAM ENTERED INTO COMPLIED WITH THE PROVISIONS OF PENNSYLVANIA'S
UNIFORM COMMERCIAL CODE AND ITS SERVICES AND INSTALLMENT SALES ACT. 
AS FOR APPELLANT ROSA WASHINGTON, THE DISTRICT COURT, BASED ON THE
ALLEGATIONS OF HER COMPLAINT, ENTERED A TEMPORARY RESTRAINING ORDER
REQUIRING THAT THE PROPERTY SEIZED FROM HER BE RETURNED FORTHWITH.  AT
A SUBSEQUENT HEARING THE ORDER WAS DISSOLVED, THE COURT FINDING" THAT
THE REPRESENTATIONS UPON WHICH THE TEMPORARY RESTRAINING ORDER OF
SEPTEMBER 18, 1970, ISSUED WERE INCORRECT, BOTH AS TO ALLEGATIONS
CONTAINED IN THE COMPLAINT AND REPRESENTATIONS MADE BY COUNSEL."  (APP.
29.) 

IT WAS STIPULATED BETWEEN APPELLANT FUENTES AND DEFENDANTS IN THE
DISTRICT COURT THAT MRS. FUENTES WAS IN DEFAULT AT THE TIME THE
REPLEVIN ACTION WAS FILED AND THAT NOTICES TO THIS EFFECT WERE SENT TO
HER OVER SEVERAL MONTHS PRIOR TO INSTITUTION OF THE SUIT.  (APP. 25
26.) 

C. MICHAEL ABBOTT ARGUED THE CAUSE PRO HAC VICE FOR APPELLANT IN NO.
70-5039.  WITH HIM ON THE BRIEF WAS BRUCE S. ROGOW.  DAVID A. SCHOOL
ARGUED THE CAUSE PRO HAC VICE FOR APPELLANTS IN NO. 70-5138.  WITH HIM
ON THE BRIEF WAS HARVEY N. SCHMIDT. 

HERBERT T. SCHWARTZ, DEPUTY ATTORNEY GENERAL OF FLORIDA, ARGUED THE
CAUSE FOR APPELLEE SHEVIN IN NO. 70-5039.  ON THE BRIEF WAS ROBERT L.
SHEVIN, ATTORNEY GENERAL OF FLORIDA, PRO SE.  GEORGE W. WRIGHT, JR.,
ARGUED THE CAUSE FOR APPELLEE FIRESTONE TIRE & RUBBER CO. IN NO. 70
5039.  WITH HIM ON THE BRIEF WAS KARL B. BLOCK, JR. ROBERT F. MAXWELL
ARGUED THE CAUSE FOR APPELLEES IN NO. 70-5138 AND WAS ON THE BRIEF FOR
APPELLEE SEARS, ROEBUCK & CO. J. SHANE CREAMER, ATTORNEY GENERAL, AND
PETER W. BROWN, DEPUTY ATTORNEY GENERAL, FILED A BRIEF FOR APPELLEE THE
COMMONWEALTH OF PENNSYLVANIA IN NO. 70-5138. 

BRIEFS OF AMICI CURIAE URGING REVERSAL IN NO. 70-5039 WERE FILED BY
ALLAN ASHMAN FOR THE NATIONAL LEGAL AID AND DEFENDER ASSOCIATION AND BY
BLAIR C. SHICK, JEAN CAMPER CAHN, AND BARBARA B. GREGG FOR THE NATIONAL
CONSUMER LAW CENTER OF BOSTON COLLEGE LAW SCHOOL ET AL. 

HARRY N. BOUREAU, ROSS L. MALONE, ROBERT L. CLARE, JR., AND GEORGE
J. WADE FILED A BRIEF FOR GENERAL MOTORS ACCEPTANCE CORP. ET AL. AS
AMICI CURIAE URGING AFFIRMANCE IN NO. 70-5039. 
..END :























COLTEN V. KENTUCKY, 407 U.S. 104 


       COLTEN V. KENTUCKY

        APPEAL FROM THE COURT OF APPEALS OF KENTUCKY

        NO. 71-404.  ARGUED APRIL 17, 1972-- DECIDED JUNE 12, 1972 


APPELLANT, ARRESTED FOR DISORDERLY CONDUCT WHEN HE FAILED,
NOTWITHSTANDING SEVERAL REQUESTS BY AN OFFICER, TO LEAVE A CONGESTED
ROADSIDE WHERE A FRIEND IN ANOTHER CAR WAS BEING TICKETED FOR A TRAFFIC
OFFENSE, WAS TRIED AND CONVICTED IN AN INFERIOR COURT AND FINED $10. 
KENTUCKY HAS A TWO-TIER SYSTEM FOR ADJUDICATING CERTAIN CRIMINAL CASES,
UNDER WHICH A PERSON CHARGED WITH A MISDEMEANOR MAY BE TRIED FIRST IN
AN INFERIOR COURT AND, IF DISSATISFIED WITH THE OUTCOME, MAY HAVE A
TRIAL DE NOVO IN A COURT OF GENERAL CRIMINAL JURISDICTION BUT MUST RISK
A GREATER PUNISHMENT IF CONVICTED.  EXERCISING HIS RIGHT TO A TRIAL DE
NOVO, APPELLANT WAS TRIED FOR DISORDERLY CONDUCT IN THE CIRCUIT COURT,
CONVICTED, AND FINED $50.  THE STATE APPELLATE COURT AFFIRMED,
REJECTING APPELLANT'S CONTENTION THAT THE DISORDERLY CONDUCT STATUTE IS
UNCONSTITUTIONAL UNDER THE FIRST AND FOURTEENTH AMENDMENTS AND THAT THE
GREATER PUNISHMENT CONTRAVENED THE DUE PROCESS REQUIREMENTS OF NORTH
CAROLINA V. PEARCE, 395 U.S. 711, AND VIOLATED THE FIFTH AMENDMENT'S
DOUBLE JEOPARDY CLAUSE.  THE DISORDERLY CONDUCT STATUTE MAKES IT AN
OFFENSE FOR A PERSON WITH INTENT TO CAUSE PUBLIC INCONVENIENCE,
ANNOYANCE, OR ALARM, OR RECKLESSLY CREATING A RISK THEREOF, TO
CONGREGATE WITH OTHERS IN A PUBLIC PLACE AND REFUSE TO COMPLY WITH A
LAWFUL POLICE DISPERSAL ORDER.  AS CONSTRUED BY THE KENTUCKY COURT OF
APPEALS, A VIOLATION OCCURS ONLY WHERE THERE IS NO BONA FIDE INTENTION
TO EXERCISE A CONSTITUTIONAL RIGHT OR WHERE THE INTEREST TO BE ADVANCED
BY THE INDIVIDUAL'S EXERCISE OF THE RIGHT IS INSIGNIFICANT IN
COMPARISON TO THE INCONVENIENCE, ANNOYANCE, OR ALARM CAUSED BY HIS
ACTION.  HELD: 

1.  THE DISORDERLY CONDUCT STATUTE WAS NOT CONSTITUTIONALLY APPLIED,
THERE HAVING BEEN AMPLE EVIDENCE THAT THE ACTION OF APPELLANT, WHO HAD
NO CONSTITUTIONAL RIGHT TO OBSERVE THE TICKETING PROCESS OR ENGAGE THE
ISSUING OFFICER IN CONVERSATION, WAS INTEFERING WITH ENFORCEMENT OF
TRAFFIC LAWS.  PP. 108-110. 

2.  THE STATUTE IS NOT IMPERMISSIBLY VAGUE OR BROAD AS "CITIZENS WHO
DESIRE TO OBEY (IT) WILL HAVE NO DIFFICULTY IN UNDERSTANDING IT," AND,
AS CONSTRUED BY THE KENTUCKY COURT, INDIVIDUALS MAY NOT BE CONVICTED
THEREUNDER MERELY FOR EXPRESSING UNPOPULAR IDEAS.  PP. 110-111. 

3.  KENTUCKY'S TWO-TIER SYSTEM DOES NOT VIOLATE THE DUE PROCESS
CLAUSE, AS IT IMPOSES NO PENALTY ON THOSE WHO SEEK A TRIAL DE NOVO
AFTER HAVING BEEN CONVICTED IN THE INFERIOR COURT.  THE KENTUCKY
PROCEDURE INVOLVES A COMPLETELY FRESH DETERMINATION OF GUILT OR
INNOCENCE BY THE SUPERIOR COURT WHICH IS NOT THE COURT THAT ACTED ON
THE CASE BEFORE AND HAS NO MOTIVE TO DEAL MORE STRICTLY WITH A DE NOVO
DEFENDANT THAN IT WOULD WITH ANY OTHER.  NORTH CAROLINA V. PEARCE,
SUPRA, DISTINGUISHED.  PP. 112-119. 

4.  THE DOUBLE JEOPARDY CLAUSE DOES NOT PROHIBIT AN ENHANCED
SENTENCE ON RECONVICTION.  NORTH CAROLINA V. PEARCE, SUPRA, AT 719
720.  PP. 119-120. 

467 S.W.2D 374, AFFIRMED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, BLACKMUN, POWELL, AND REHNQUIST, JJ.,
JOINED.  DOUGLAS, J., POST, P. 120, AND MARSHALL, J., POST, P. 122,
FILED DISSENTING OPINIONS. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS TWO UNRELATED QUESTIONS.  APPELLANT CHALLENGES
HIS KENTUCKY CONVICTION FOR DISORDERLY CONDUCT ON THE GROUND THAT THE
CONVICTION AND THE STATE'S STATUTE ARE REPUGNANT TO THE FIRST AND
FOURTEENTH AMENDMENTS.  HE ALSO CHALLENGES THE CONSTITUTIONALITY OF THE
ENHANCED PENALTY HE RECEIVED UNDER KENTUCKY'S TWO-TIER SYSTEM FOR
ADJUDICATING CERTAIN CRIMINAL CASES, WHEREBY A PERSON CHARGED WITH A
MISDEMEANOR MAY BE TRIED FIRST IN AN INFERIOR COURT AND, IF
DISSATISFIED WITH THE OUTCOME, MAY HAVE A TRIAL DE NOVO IN A COURT OF
GENERAL CRIMINAL JURISDICTION BUT MUST RUN THE RISK, IF CONVICTED, OF
RECEIVING A GREATER PUNISHMENT. 

APPELLANT COLTEN AND 15 TO 20 OTHER COLLEGE STUDENTS GATHERED AT THE
BLUE GRASS AIRPORT OUTSIDE LEXINGTON, KENTUCKY, TO SHOW THEIR SUPPORT
FOR A STATE GUBERNATORIAL CANDIDATE AND TO DEMONSTRATE THEIR LACK OF
REGARD FOR MRS. RICHARD NIXON, THEN ABOUT TO LEAVE LEXINGTON FROM THE
AIRPORT AFTER A PUBLIC APPEARANCE IN THE CITY.  WHEN THE DEMONSTRATION
HAD ENDED, THE STUDENTS GOT INTO THEIR AUTOMOBILES AND FORMED A
PROCESSION OF SIX TO 10 CARS ALONG THE AIRPORT ACCESS ROAD TO THE MAIN
HIGHWAY.  A STATE POLICEMAN, OBSERVING THAT ONE OF THE FIRST CARS IN
THE ENTOURAGE CARRIED AN EXPIRED LOUISIANA LICENSE PLATE, DIRECTED THE
DRIVER, ONE MENDEZ, TO PULL OFF THE ROAD.  HE COMPLIED.  APPELLANT
COLTEN, FOLLOWED BY OTHER MOTORISTS IN THE PROCESSION, ALSO PULLED OFF
THE HIGHWAY, AND COLTEN APPROACHED THE OFFICER TO FIND OUT WHAT WAS THE
MATTER.  THE POLICEMAN EXPLAINED THAT THE MENDEZ CAR BORE AN EXPIRED
PLATE AND THAT A TRAFFIC SUMMONS WOULD BE ISSUED.  COLTEN MADE SOME
EFFORT TO ENTER INTO A CONVERSATION ABOUT THE SUMMONS.  HIS THEORY WAS
THAT MENDEZ MAY HAVE RECEIVED AN EXTENSION OF TIME IN WHICH TO OBTAIN
NEW PLATES.  IN ORDER TO AVOID COLTEN AND TO COMPLETE THE ISSUANCE OF
THE SUMMONS, THE POLICEMAN TOOK MENDEZ TO THE PATROL CAR.  MEANWHILE,
OTHER STUDENTS HAD LEFT THEIR CARS AND ADDITIONAL POLICEMEN, HAVING
COMPLETED THEIR DUTIES AT THE AIRPORT AND HAVING NOTICED THE ROADSIDE
SCENE, STOPPED THEIR CARS IN THE TRAFFIC LANE ABREAST OF THE STUDENTS'
VEHICLES.  AT LEAST ONE OFFICER TOOK RESPONSIBILITY FOR DIRECTING
TRAFFIC, ALTHOUGH TESTIMONY DIFFERED AS TO THE NEED FOR DOING SO.
TESTIMONY ALSO DIFFERED AS TO THE NUMBER OF POLICEMEN AND STUDENTS
PRESENT, HOW MANY STUDENTS LEFT THEIR CARS AND HOW MANY WERE AT ONE
TIME OR ANOTHER STANDING IN THE ROADWAY.  A STATE POLICE CAPTAIN ASKED
ON FOUR OR FIVE OCCASIONS THAT THE GROUP DISPERSE.  AT LEAST FIVE TIMES
POLICE ASKED COLTEN TO LEAVE.  /1/  A STATE TROOPER MADE TWO REQUESTS,
REMARKING AT LEAST ONCE:  "NOW, THIS IS NONE OF YOUR AFFAIR . . . GET
BACK IN YOUR CAR AND PLEASE MOVE ON AND CLEAR THE ROAD."  IN RESPONSE
TO AT LEAST ONE OF THESE REQUESTS COLTEN REPLIED THAT HE WISHED TO MAKE
A TRANSPORTATION ARRANGEMENT FOR HIS FRIEND MENDEZ AND THE OCCUPANTS OF
THE MENDEZ CAR, WHICH HE UNDERSTOOD WAS TO BE TOWED AWAY.  ANOTHER
OFFICER ASKED THREE TIMES THAT COLTEN DEPART AND WHEN COLTEN FAILED TO
MOVE AWAY HE WAS ARRESTED FOR VIOLATING KENTUCKY'S DISORDERLY CONDUCT
STATUTE, KY. REV. STAT. SEC. 437.016 (SUPP. 1968).  THE ARRESTING
OFFICER TESTIFIED THAT COLTEN'S RESPONSE TO THE ORDER HAD BEEN TO SAY
THAT HE INTENDED TO STAY AND SEE WHAT MIGHT HAPPEN.  COLTEN DISPUTED
THIS.  HE TESTIFIED THAT HE EXPRESSED WILLINGNESS TO LEAVE BUT WANTED
FIRST TO MAKE A TRANSPORTATION ARRANGEMENT.  AT TRIAL HE ADDED THAT HE
FEARED VIOLENCE ON THE PART OF THE POLICE.  /2/ 

THE COMPLAINT AND WARRANT CHARGING DISORDERLY CONDUCT, WHICH CARRIES
A MAXIMUM PENALTY OF SIX MONTHS IN JAIL AND A FINE OF $500, WERE
ADDRESSED TO THE QUARTERLY COURT OF FAYETTE COUNTY, WHERE COLTEN WAS
TRIED, CONVICTED, AND FINED $10.  EXERCISING HIS RIGHT TO A TRIAL DE
NOVO IN A COURT OF GENERAL JURISDICTION, COLTEN "APPEALED," AS THE
KENTUCKY RULES STYLE THIS RECOURSE, KY. RULE CRIM. PROC. 12.02, TO THE
CRIMINAL DIVISION OF THE FAYETTE CIRCUIT COURT.  BY CONSENT, TRIAL WAS
TO THE COURT AND COLTEN WAS CONVICTED OF DISORDERLY CONDUCT AND THIS
TIME FINED $50.  THE KENTUCKY COURT OF APPEALS AFFIRMED.  COLTEN V.
COMMONWEALTH, 467 S.W.2D 374 (1971).  IT REJECTED COLTEN'S
CONSTITUTIONAL CHALLENGES TO THE STATUTE AND HIS CLAIM THAT THE
PUNISHMENT IMPOSED WAS IMPERMISSIBLE, UNDER NORTH CAROLINA V. PEARCE,
395 U.S. 711 (1969).  WE NOTED PROBABLE JURISDICTION.  404 U.S. 1014
(1972). 

        I 

COLTEN WAS CONVICTED OF VIOLATING KY. REV. STAT. SEC. 437.016(1)(F)
(SUPP. 1968), WHICH STATES: 

     "(1) A PERSON IS GUILTY OF DISORDERLY CONDUCT IF, WITH INTENT

  TO CAUSE PUBLIC INCONVENIENCE, ANNOYANCE OR ALARM, OR RECKLESSLY

  CREATING A RISK THEREOF, HE:

        .          .          .          . 

"(F) CONGREGATES WITH OTHER PERSONS IN A PUBLIC PLACE AND

REFUSES TO COMPLY WITH A LAWFUL ORDER OF THE POLICE TO

DISPERSE.  . . . "

THE KENTUCKY COURT OF APPEALS INTERPRETED THE STATUTE IN THE FOLLOWING
WAY: 

     "AS REASONABLY CONSTRUED, THE STATUTE DOES NOT PROHIBIT THE

  LAWFUL EXERCISE OF ANY CONSTITUTIONAL RIGHT.  WE THINK THAT THE

  PLAIN MEANING OF THE STATUTE, IN REQUIRING THAT THE PROSCRIBED

CONDUCT BE DONE 'WITH INTENT TO CAUSE PUBLIC INCONVENIENCE,

  ANNOYANCE OR ALARM, OR RECKLESSLY CREATING A RISK THEREOF,' IS

  THAT THE SPECIFIED INTENT MUST BE THE PREDOMINANT INTENT. 

  PREDOMINANCE CAN BE DETERMINED EITHER (1) FROM THE FACT THAT NO

  BONA FIDE INTENT TO EXERCISE A CONSTITUTIONAL RIGHT APPEARS TO

  HAVE EXISTED OR (2) FROM THE FACT THAT THE INTEREST TO BE

  ADVANCED BY THE PARTICULAR EXERCISE OF A CONSTITUTIONAL RIGHT IS

  INSIGNIFICANT IN COMPARISON WITH THE INCONVENIENCE, ANNOYANCE OR

  ALARM CAUSED BY THE EXERCISE."  467 S.W.2D,AT 377. 

THE EVIDENCE WARRANTED A FINDING, THE KENTUCKY COURT CONCLUDED, THAT AT
THE TIME OF HIS ARREST, "COLTEN WAS NOT UNDERTAKING TO EXERCISE ANY
CONSTITUTIONALLY PROTECTED FREEDOM."  RATHER, HE "APPEARS TO HAVE HAD
NO PURPOSE OTHER THAN TO CAUSE INCONVENIENCE AND ANNOYANCE.  SO THE
STATUTE AS APPLIED HERE DID NOT CHILL OR STIFLE THE EXERCISE OF ANY
CONSTITUTIONAL RIGHT."  ID., AT 378. 

BASED ON OUR OWN EXAMINATION OF THE RECORD, WE PERCEIVE NO
JUSTIFICATION FOR SETTING ASIDE THE CONCLUSION OF THE STATE COURT THAT
WHEN ARRESTED APPELLANT WAS NOT ENGAGED IN ACTIVITY PROTECTED BY THE
FIRST AMENDMENT.  COLTEN INSISTS THAT IN SEEKING TO ARRANGE
TRANSPORTATION FOR MENDEZ AND IN OBSERVING THE ISSUANCE OF A TRAFFIC
CITATION HE WAS DISSEMINATING AND RECEIVING INFORMATION.  BUT THIS IS A
STRAINED, NEAR-FRIVOLOUS CONTENTION AND WE HAVE LITTLE DOUBT THAT
COLTEN'S CONDUCT IN REFUSING TO MOVE ON AFTER BEING DIRECTED TO DO SO
WAS NOT, WITHOUT MORE, PROTECTED BY THE FIRST AMENDMENT.  NOR CAN WE
BELIEVE THAT COLTEN, ALTHOUGH HE WAS NOT TRESPASSING OR DISOBEYING ANY
TRAFFIC REGULATION HIMSELF, COULD NOT BE REQUIRED TO MOVE ON.  HE HAD
NO CONSTITUTIONAL RIGHT TO OBSERVE THE ISSUANCE OF A TRAFFIC TICKET OR
TO ENGAGE THE ISSUING OFFICER IN CONVERSATION AT THAT TIME.  THE STATE
HAS A LEGITIMATE INTEREST IN ENFORCING ITS TRAFFIC LAWS AND ITS
OFFICERS WERE ENTITLED TO ENFORCE THEM FREE FROM POSSIBLE INTERFERENCE
OR INTERRUPTION FROM BYSTANDERS, EVEN THOSE CLAIMING A THIRD-PARTY
INTEREST IN THE TRANSACTION.  HERE THE POLICE HAD CAUSE FOR
APPREHENSION THAT A ROADSIDE STRIP, CROWDED WITH PERSONS AND
AUTOMOBILES, MIGHT EXPOSE THE ENTOURAGE, PASSING MOTORISTS, AND POLICE
TO THE RISK OF ACCIDENT.  WE CANNOT DISAGREE WITH THE FINDING BELOW
THAT THE ORDER TO DISPERSE WAS SUITED TO THE OCCASION.  WE THUS SEE
NOTHING UNCONSTITUTIONAL IN THE MANNER IN WHICH THE STATUTE WAS
APPLIED. 

        II 

NEITHER ARE WE CONVINCED THAT THE STATUTE IS EITHER IMPERMISSIBLY
VAGUE OR BROAD.  WE PERCEIVE NO VIOLATION OF "(THE UNDERLYING PRINCIPLE
. . . THAT NO MAN SHALL BE HELD CRIMINALLY RESPONSIBLE FOR CONDUCT
WHICH HE COULD NOT REASONABLY UNDERSTAND TO BE PROSCRIBED."  UNITED
STATES V. HARRISS, 347 U.S. 612, 617 (1954); CF. CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U.S. 385, 391 (1926).  HERE THE STATUTE
AUTHORIZED CONVICTION FOR REFUSING TO DISPERSE WITH THE INTENT OF
CAUSING INCONVENIENCE, ANNOYANCE, OR ALARM.  ANY PERSON WHO STANDS IN A
GROUP OF PERSONS ALONG A HIGHWAY WHERE THE POLICE ARE INVESTIGATING A
TRAFFIC VIOLATION AND SEEKS TO ENGAGE THE ATTENTION OF AN OFFICER
ISSUING A SUMMONS SHOULD UNDERSTAND THAT HE COULD BE CONVICTED UNDER
SUBDIVISION (F) OF KENTUCKY'S STATUTE IF HE FAILS TO OBEY AN ORDER TO
MOVE ON.  THE ROOT OF THE VAGUENESS DOCTRINE IS A ROUGH IDEA OF
FAIRNESS.  IT IS NOT A PRINCIPLE DESIGNED TO CONVERT INTO A
CONSTITUTIONAL DILEMMA THE PRACTICAL DIFFICULTIES IN DRAWING CRIMINAL
STATUTES BOTH GENERAL ENOUGH TO TAKE INTO ACCOUNT A VARIETY OF HUMAN
CONDUCT AND SUFFICIENTLY SPECIFIC TO PROVIDE FAIR WARNING THAT CERTAIN
KINDS OF CONDUCT ARE PROHIBITED.  WE AGREE WITH THE KENTUCKY COURT WHEN
IT SAID:  "WE BELIEVE THAT CITIZENS WHO DESIRE TO OBEY THE STATUTE WILL
HAVE NO DIFFICULTY IN UNDERSTANDING IT. . . . "  COLTEN V.
COMMONWEALTH, 467 S.W.2D,AT 378. 

COLTEN ALSO ARGUES THAT THE KENTUCKY STATUTE IS OVERBROAD.  HE
RELIES ON COX V. LOUISIANA, 379 U.S. 536 (1965), WHERE THE COURT HELD
UNCONSTITUTIONAL A BREACH-OF-PEACE STATUTE CONSTRUED TO FORBID CAUSING
AGITATION OR DISQUIET COUPLED WITH REFUSING TO MOVE ON WHEN ORDERED TO
DO SO.  THE COURT INVALIDATED THE STATUTE ON THE GROUND THAT IT
PERMITTED CONVICTION WHERE THE MERE EXPRESSION OF UNPOPULAR VIEWS
PROMPTED THE ORDER THAT IS DISOBEYED.  COLTEN ARGUES THAT THE KENTUCKY
STATUTE MUST BE STRICKEN DOWN FOR THE SAME REASON. 

AS THE KENTUCKY STATUTE WAS CONSTRUED BY THE STATE COURT, HOWEVER, A
CRIME IS COMMITTED ONLY WHERE THERE IS NO BONA FIDE INTENTION TO
EXERCISE A CONSTITUTIONAL RIGHT-- IN WHICH EVENT, BY DEFINITION, THE
STATUTE INFRINGES NO PROTECTED SPEECH OR CONDUCT-- OR WHERE THE
INTEREST SO CLEARLY OUTWEIGHS THE COLLECTIVE INTEREST SOUGHT TO BE
ASSERTED THAT THE LATTER MUST BE DEEMED INSUBSTANTIAL.  THE COURT
HYPOTHESIZED, FOR EXAMPLE, THAT ONE COULD BE CONVICTED FOR DISORDERLY
CONDUCT IF AT A SYMPHONY CONCERT HE AROSE AND BEGAN LECTURING TO THE
AUDIENCE ON LEGHORN CHICKENS.  467 S.W.2D,AT 377.  IN SO CONFINING THE
REACH OF ITS STATUTE, THE KENTUCKY COURT AVOIDED THE SHORTCOMINGS OF
THE STATUTE INVALIDATED IN THE COX CASE.  INDIVIDUALS MAY NOT BE
CONVICTED UNDER THE KENTUCKY STATUTE MERELY FOR EXPRESSING UNPOPULAR OR
ANNOYING IDEAS.  THE STATUTE COMES INTO OPERATION ONLY WHEN THE
INDIVIDUAL'S INTEREST IN EXPRESSION, JUDGED IN THE LIGHT OF ALL
RELEVANT FACTORS, IS "MINUSCULE" COMPARED TO A PARTICULAR PUBLIC
INTEREST IN PREVENTING THAT EXPRESSION OR CONDUCT AT THAT TIME AND
PLACE.  AS WE UNDERSTAND THIS CASE, APPELLANT'S OWN CONDUCT WAS NOT
IMMUNE UNDER THE FIRST AMENDMENT AND NEITHER IS HIS CONVICTION
VULNERABLE ON THE GROUND THAT THE STATUTE THREATENS CONSTITUTIONALITY
PROTECTED CONDUCT OF OTHERS.  /3/

        III 

KENTUCKY, LIKE MANY OTHER STATES, /4/  HAS A TWO-TIER SYSTEM FOR
ADJUDICATING LESS SERIOUS CRIMINAL CASES.  IN KENTUCKY, AT THE OPTION
OF THE ARRESTING OFFICER, THOSE CRIMES CLASSIFIED UNDER STATE LAW AS
MISDEMEANORS /5/  MAY BE CHARGED AND TRIED IN A SO-CALLED INFERIOR
COURT, /6/ WHERE, AS IN THE NORMAL TRIAL SETTING, A DEFENDANT MAY
CHOOSE TO HAVE A TRIAL OR TO PLEAD GUILTY.  IF CONVICTED AFTER TRIAL OR
ON A GUILTY PLEA, HOWEVER, HE HAS A RIGHT TO A TRIAL DE NOVO IN A COURT
OF GENERAL CRIMINAL JURISDICTION, BROWN V. HOBLITZELL, 307 S.W.2D 739
(KY. 1957), SO LONG AS HE APPLIES WITHIN THE STATUTORY TIME.  /7/  THE
RIGHT TO A NEW TRIAL IS ABSOLUTE.  A DEFENDANT NEED NOT ALLEGE ERROR IN
THE INFERIOR COURT PROCEEDING.  IF HE SEEKS A NEW TRIAL, THE KENTUCKY
STATUTORY SCHEME CONTEMPLATES THAT THE SLATE BE WIPED CLEAN.  KY. RULE
CRIM. PROC. 12.06.  PROSECUTION AND DEFENSE BEGIN ANEW.  BY THE SAME
TOKEN NEITHER THE JUDGE NOR JURY THAT DETERMINES GUILT OR FIXES A
PENALTY IN THE TRIAL DE NOVO IS IN ANY WAY BOUND BY THE INFERIOR
COURT'S FINDINGS OR JUDGMENT.  THE CASE IS TO BE REGARDED EXACTLY AS IF
IT HAD BEEN BROUGHT THERE IN THE FIRST INSTANCE.  A CONVICTED DEFENDANT
MAY SEEK REVIEW IN THE STATE APPELLATE COURTS IN THE SAME MANNER AS A
PERSON TRIED INITIALLY IN THE GENERAL CRIMINAL COURT.  KY. REV. STAT.
SEC. 23.032 (SUPP. 1968).  HOWEVER, A DEFENDANT CONVICTED AFTER A TRIAL
OR PLEA IN AN INFERIOR COURT MAY NOT SEEK ORDINARY APPELLATE REVIEW OF
THE INFERIOR COURT'S RULING.  HIS RECOURSE IS THE TRIAL DE NOVO. 

WHILE BY DEFINITION TWO-TIER SYSTEMS THROUGHOUT THE STATES HAVE IN
COMMON THE TRIAL DE NOVO FEATURE, /8/  THERE ARE DIFFERENCES IN THE
KIND OF TRIAL AVAILABLE IN THE INFERIOR COURTS OF FIRST INSTANCE,
WHETHER KNOWN AS COUNTY, MUNICIPAL, POLICE, OR JUSTICE OF THE PEACE
COURTS, OR ARE OTHERWISE REFERRED TO.  DEPENDING UPON THE JURISDICTION
AND OFFENSE CHARGED, MANY SUCH SYSTEMS PROVIDE AS COMPLETE PROTECTION
FOR A CRIMINAL DEFENDANT'S CONSTITUTIONAL RIGHTS AS DO COURTS EMPOWERED
TO TRY MORE SERIOUS CRIMES.  OTHERS, HOWEVER, LACK SOME OF THE
SAFEGUARDS PROVIDED IN MORE SERIOUS CRIMINAL CASES.  ALTHOUGH APPELLANT
HERE WAS ENTITLED TO A SIX-MAN JURY, CF. WILLIAMS V. FLORIDA, 399 U.S.
78 (1970), WHICH HE WAIVED, SOME STATES DO NOT PROVIDE FOR TRIAL BY
JURY, /9/  EVEN IN INSTANCES WHERE THE AUTHORIZED PUNISHMENT WOULD
ENTITLE THE ACCUSED TO SUCH TRIBUNAL.  CF. DUNCAN V. LOUISIANA, 391
U.S. 145 (1968).  SOME, INCLUDING KENTUCKY, DO NOT RECORD PROCEEDINGS
/10/  AND THE JUDGES MAY NOT BE TRAINED FOR THEIR POSITIONS EITHER BY
EXPERIENCE OR SCHOOLING.  /11/     TWO JUSTIFICATIONS ARE ASSERTED FOR
SUCH TRIBUNALS:  FIRST, IN THIS DAY OF INCREASING BURDENS ON STATE
JUDICIARIES, THESE COURTS ARE DESIGNED, IN THE INTEREST OF BOTH THE
DEFENDANT AND THE STATE, TO PROVIDE SPEEDIER AND LESS COSTLY
ADJUDICATIONS THAN MAY BE POSSIBLE IN THE CRIMINAL COURTS OF GENERAL
JURISDICTION WHERE THE FULL RANGE OF CONSTITUTIONAL GUARANTEES IS
AVAILABLE; SECOND, IF THE DEFENDANT IS NOT SATISFIED WITH THE RESULTS
OF HIS FIRST TRIAL HE HAS THE UNCONDITIONAL RIGHT TO A NEW TRIAL IN A
SUPERIOR COURT, UNPREJUDICED BY THE PROCEEDINGS OR THE OUTCOME IN THE
INFERIOR COURTS.  COLTEN, HOWEVER, CONSIDERS THE KENTUCKY SYSTEM TO BE
INFIRM BECAUSE THE JUDGE IN A TRIAL DE NOVO IS EMPOWERED TO SENTENCE
ANEW AND IS NOT BOUND TO STAY WITHIN THE LIMITS OF THE SENTENCE IMPOSED
BY THE INFERIOR COURT.  HE BASES HIS ATTACK BOTH ON THE DUE PROCESS
CLAUSE, AS INTERPRETED IN NORTH CAROLINA V. PEARCE, 395 U.S. 711
(1969), AND ON THE FIFTH AMENDMENT'S DOUBLE JEOPARDY CLAUSE.  THE
ISSUES APPELLANT RAISES HAVE PRODUCED A DIVISION AMONG THE STATE COURTS
THAT HAVE CONSIDERED THEM /12/  AS WELL AS A CONFLICT AMONG THE FEDERAL
CIRCUITS.  /13/ 

COLTEN RIGHTLY READS PEARCE TO FORBID, FOLLOWING A SUCCESSFUL APPEAL
AND RECONVICTION, THE IMPOSITION OF A GREATER PUNISHMENT THAN WAS
IMPOSED AFTER THE FIRST TRIAL, ABSENT SPECIFIED FINDINGS THAT HAVE NOT
BEEN MADE HERE.  HE INSISTS THAT THE PEARCE RULE IS APPLICABLE HERE AND
THAT THERE IS NO RELEVANT DIFFERENCE BETWEEN THE PEARCE MODEL AND THE
KENTUCKY TWO-TIER TRIAL DE NOVO SYSTEM.  BOTH, HE ASSERTS, INVOLVE
RECONVICTION AND RESENTENCING, BOTH PROVIDE THE CONVICTED DEFENDANT
WITH THE RIGHT TO "APPEAL" AND IN BOTH-- EVEN THOUGH UNDER THE KENTUCKY
SCHEME THE "APPEAL" IS IN REALITY A TRIAL DE NOVO-- A PENALTY FOR THE
SAME CRIME IS FIXED TWICE, WITH THE SAME POTENTIAL FOR AN INCREASED
PENALTY UPON A SUCCESSFUL "APPEAL." 

BUT PEARCE DID NOT TURN SIMPLY ON THE FACT OF CONVICTION, APPEAL,
REVERSAL, RECONVICTION, AND A GREATER SENTENCE.  THE COURT WAS THERE
CONCERNED WITH TWO DEFENDANTS WHO, AFTER THEIR CONVICTIONS HAD BEEN SET
ASIDE ON APPEAL, WERE RECONVICTED FOR THE SAME OFFENSES AND SENTENCED
TO LONGER PRISON TERMS.  IN ONE CASE THE TERM WAS INCREASED FROM 10 TO
25 YEARS.  POSITING THAT A MORE SEVERE PENALTY AFTER RECONVICTION WOULD
VIOLATE DUE PROCESS OF LAW IF IMPOSED AS PURPOSEFUL PUNISHMENT FOR
HAVING SUCCESSFULLY APPEALED, THE COURT CONCLUDED THAT SUCH UNTOWARD
SENTENCES OCCURRED WITH SUFFICIENT FREQUENCY TO WARRANT THE IMPOSITION
OF A PROPHYLACTIC RULE TO ENSURE "THAT VINDICTIVENESS AGAINST A
DEFENDANT FOR HAVING SUCCESSFULLY ATTACKED HIS FIRST CONVICTION . . .
(WOULD) PLAY NO PART IN THE SENTENCE HE RECEIVES AFTER A NEW TRIAL . .
. " AND TO ENSURE THAT THE APPREHENSION OF SUCH VINDICTIVENESS DOES NOT
"DETER A DEFENDANT'S EXERCISE OF THE RIGHT TO APPEAL OR COLLATERALLY
ATTACK HIS FIRST CONVICTION.  . . . "  395 U.S.,AT 75. 

OUR VIEW OF THE KENTUCKY TWO-TIER SYSTEM OF ADMINISTERING CRIMINAL
JUSTICE, HOWEVER, DOES NOT LEAD US TO BELIEVE, AND THERE IS NOTHING IN
THE RECORD OR PRESENTED IN THE BRIEFS TO SHOW, THAT THE HAZARD OF BEING
PENALIZED FOR SEEKING A NEW TRIAL, WHICH UNDERLAY THE HOLDING OF
PEARCE, ALSO INHERES IN THE DE NOVO TRIAL ARRANGEMENT.  NOR ARE WE
CONVINCED THAT DEFENDANTS CONVICTED IN KENTUCKY'S INFERIOR COURTS WOULD
BE DETERRED FROM SEEKING A SECOND TRIAL OUT OF FEAR OF JUDICIAL
VINDICTIVENESS.  THE POSSIBILITY OF VINDICTIVENESS, FOUND TO EXIST IN
PEARCE, IS NOT INHERENT IN THE KENTUCKY TWO-TIER SYSTEM. 

WE NOTE FIRST THE OBVIOUS:  THAT THE COURT WHICH CONDUCTED COLTEN'S
TRIAL AND IMPOSED THE FINAL SENTENCE WAS NOT THE COURT WITH WHOSE WORK
COLTEN WAS SUFFICIENTLY DISSATISFIED TO SEEK A DIFFERENT RESULT ON
APPEAL; AND IT IS NOT THE COURT THAT IS ASKED TO DO OVER WHAT IT
THOUGHT IT HAD ALREADY DONE CORRECTLY.  NOR IS THE DE NOVO COURT EVEN
ASKED TO FIND ERROR IN ANOTHER COURT'S WORK.  RATHER, THE KENTUCKY
COURT IN WHICH COLTEN HAD THE UNRESTRICTED RIGHT TO HAVE A NEW TRIAL
WAS MERELY ASKED TO ACCORD THE SAME TRIAL, UNDER THE SAME RULES AND
PROCEDURES, AVAILABLE TO DEFENDANTS WHOSE CASES ARE BEGUN IN THAT COURT
IN THE FIRST INSTANCE.  IT WOULD ALSO APPEAR THAT, HOWEVER
UNDERSTANDABLY A COURT OF GENERAL JURISDICTION MIGHT FEEL THAT THE
DEFENDANT WHO HAS HAD A DUE PROCESS TRIAL OUGHT TO BE SATISFIED WITH
IT, THE DE NOVO COURT IN THE TWO-TIER SYSTEM IS MUCH MORE LIKELY TO
REFLECT THE ATTITUDE OF THE KENTUCKY COURT OF APPEALS IN THIS CASE WHEN
IT STATED THAT "THE INFERIOR COURTS ARE NOT DESIGNED OR EQUIPPED TO
CONDUCT ERROR-FREE TRIALS, OR TO INSURE FULL RECOGNITION OF
CONSTITUTIONAL FREEDOMS.  THEY ARE COURTS OF CONVENIENCE, TO PROVIDE
SPEEDY AND INEXPENSIVE MEANS OF DISPOSITION OF CHARGES OF MINOR
OFFENSES."  COLTEN V. COMMONWEALTH, 467 S.W.2D,AT 379.  WE SEE NO
REASON, AND NONE IS OFFERED, TO ASSUME THAT THE DE NOVO COURT WILL DEAL
ANY MORE STRICTLY WITH THOSE WHO INSIST ON A TRIAL IN THE SUPERIOR
COURT AFTER CONVICTION IN THE QUARTERLY COURT THAN IT WOULD WITH THOSE
DEFENDANTS WHOSE CASES ARE FILED ORIGINALLY IN THE SUPERIOR COURT AND
WHO CHOOSE TO PUT THE STATE TO ITS PROOF IN A TRIAL SUBJECT TO
CONSTITUTIONAL GUARANTEES. 

IT MAY OFTEN BE THAT THE SUPERIOR COURT WILL IMPOSE A PUNISHMENT
MORE SEVERE THAN THAT RECEIVED FROM THE INFERIOR COURT.  BUT IT NO MORE
FOLLOWS THAT SUCH A SENTENCE IS A VINDICTIVE PENALTY FOR SEEKING A
SUPERIOR COURT TRIAL THAN THAT THE INFERIOR COURT IMPOSED A LENIENT
PENALTY.  THE TRIAL DE NOVO REPRESENTS A COMPLETELY FRESH DETERMINATION
OF GUILT OR INNOCENCE.  IT IS NOT AN APPEAL ON THE RECORD.  AS FAR AS
WE KNOW, THE RECORD FROM THE LOWER COURT IS NOT BEFORE THE SUPERIOR
COURT AND IS IRRELEVANT TO ITS PROCEEDINGS.  IN ALL LIKELIHOOD, THE
TRIAL DE NOVO COURT IS NOT EVEN INFORMED OF THE SENTENCE IMPOSED IN THE
INFERIOR COURT AND CAN HARDLY BE SAID TO HAVE "ENHANCED" THE SENTENCE. 
/14/  IN KENTUCKY, DISORDERLY CONDUCT IS PUNISHABLE BY SIX MONTHS IN
JAIL AND A FINE OF $500.  THE INFERIOR COURT FINED COLTEN $10, THE
TRIAL DE NOVO COURT $50.  WE HAVE NO BASIS FOR CONCLUDING THAT THE
LATTER COURT DID ANYTHING OTHER THAN INVOKE THE NORMAL PROCESSES OF A
CRIMINAL TRIAL AND THEN SENTENCE IN ACCORDANCE WITH THE NORMAL
STANDARDS APPLIED IN THAT COURT TO CASES TRIED THERE IN THE FIRST
INSTANCE.  WE CANNOT CONCLUDE, ON THE BASIS OF THE PRESENT RECORD OR
OUR UNDERSTANDING, THAT THE PROPHYLACTIC RULE ANNOUNCED IN PEARCE IS
APPROPRIATE IN THE CONTEXT OF THE SYSTEM BY WHICH KENTUCKY ADMINISTERS
CRIMINAL JUSTICE IN THE LESS SERIOUS CRIMINAL CASES. 

IT IS SUGGESTED, HOWEVER, THAT THE SENTENCING STRICTURES IMPOSED BY
PEARCE ARE ESSENTIAL IN ORDER TO MINIMIZE AN ASSERTED UNFAIRNESS TO
CRIMINAL DEFENDANTS WHO MUST ENDURE A TRIAL IN AN INFERIOR COURT WITH
LESS-THAN-ADEQUATE PROTECTIONS IN ORDER TO SECURE A TRIAL COMPORTING
COMPLETELY WITH CONSTITUTIONAL GUARANTEES.  WE ARE NOT PERSUADED,
HOWEVER, THAT THE KENTUCKY ARRANGEMENT FOR DEALING WITH THE LESS
SERIOUS OFFENSES DISADVANTAGES DEFENDANTS ANY MORE OR ANY LESS THAN
TRIALS CONDUCTED IN A COURT OF GENERAL JURISDICTION IN THE FIRST
INSTANCE, AS LONG AS THE LATTER ARE ALWAYS AVAILABLE.  PROCEEDINGS IN
THE INFERIOR COURTS ARE SIMPLE AND SPEEDY, AND, IF THE RESULTS IN
COLTEN'S CASE ARE ANY EVIDENCE, THE PENALTY IS NOT CHARACTERISTICALLY
SEVERE.  SUCH PROCEEDINGS OFFER A DEFENDANT THE OPPORTUNITY TO LEARN
ABOUT THE PROSECUTION'S CASE AND, IF HE CHOOSES, HE NEED NOT REVEAL HIS
OWN.  HE MAY ALSO PLEAD GUILTY WITHOUT A TRIAL AND PROMPTLY SECURE A DE
NOVO TRIAL IN A COURT OF GENERAL CRIMINAL JURISDICTION.  HE CANNOT, AND
WILL NOT, FACE THE REALISTIC THREAT OF A PRISON SENTENCE IN THE
INFERIOR COURT WITHOUT HAVING THE HELP OF COUNSEL, WHOSE ADVICE WILL
ALSO BE AVAILABLE IN DETERMINING WHETHER TO SEEK A NEW TRIAL, WITH THE
SLATE WIPED CLEAN, OR TO ACCEPT THE PENALTY IMPOSED BY THE INFERIOR
COURT.  THE STATE HAS NO SUCH OPTIONS.  SHOULD IT NOT PREVAIL IN THE
LOWER COURT, THE CASE IS TERMINATED, WHEREAS THE DEFENDANT HAS THE
CHOICE OF BEGINNING ANEW.  IN REALITY HIS CHOICES ARE TO ACCEPT THE
DECISION OF THE JUDGE AND THE SENTENCE IMPOSED IN THE INFERIOR COURT OR
TO REJECT WHAT IN EFFECT IS NO MORE THAN AN OFFER IN SETTLEMENT OF HIS
CASE AND SEEK THE JUDGMENT OF JUDGE OR JURY IN THE SUPERIOR COURT, WITH
SENTENCE TO BE DETERMINED BY THE FULL RECORD MADE IN THAT COURT.  WE
CANNOT SAY THAT THE KENTUCKY TRIAL DE NOVO SYSTEM, AS SUCH, IS
UNCONSTITUTIONAL OR THAT IT PRESENTS HAZARDS WARRANTING THE RESTRAINTS
CALLED FOR IN NORTH CAROLINA V. PEARCE, PARTICULARLY SINCE SUCH
RESTRAINTS MIGHT, TO THE DETRIMENT OF BOTH DEFENDANT AND STATE,
DIMINISH THE LIKELIHOOD THAT INFERIOR COURTS WOULD IMPOSE LENIENT
SENTENCES WHOSE EFFECT WOULD BE TO LIMIT THE DISCRETION OF A SUPERIOR
COURT JUDGE OR JURY IF THE DEFENDANT IS RETRIED AND FOUND GUILTY. 

COLTEN'S ALTERNATIVE CONTENTION IS THAT THE DOUBLE JEOPARDY CLAUSE
PROHIBITS THE IMPOSITION OF AN ENHANCED PENALTY UPON RECONVICTION.  THE
PEARCE COURT REJECTED THE SAME CONTENTION IN THE CONTEXT OF THAT CASE,
395 U.S.,AT 719-720.  COLTEN 719-720.  COLTEN URGES THAT HIS CLAIM IS
STRONGER BECAUSE THE KENTUCKY SYSTEM FORCES A DEFENDANT TO EXPOSE
HIMSELF TO JEOPARDY AS A PRICE FOR SECURING A TRIAL THAT COMPORTS WITH
THE CONSTITUTION.  THAT WAS, OF COURSE, THE SITUATION IN PEARCE, WHERE
REVERSAL OF THE FIRST CONVICTION WAS FOR CONSTITUTIONAL ERROR.  THE
CONTENTION A-SO IGNORES THAT A DEFENDANT CAN BYPASS THE INFERIOR COURT
SIMPLY BY PLEADING GUILTY AND ERASING IMMEDIATELY THEREAFTER ANY
CONSEQUENCE THAT WOULD OTHERWISE FOLLOW FROM TENDERING THE PLEA. 

THE JUDGMENT OF THE KENTUCKY COURT OF APPEALS IS

AFFIRMED. 

/1/  THIS VERSION OF THE FACTS IS TAKEN LARGELY FROM THE OPINION OF
THE KENTUCKY COURT OF APPEALS.  COLTEN V. COMMONWEALTH, 467 S.W.2S 374,
375-376 (KY. 1971).  COLTEN TESTIFIED THAT ONLY THE ARRESTING OFFICER
ORDERED HIM TO LEAVE AND THAT THE THREE ORDERS WERE UTTERED IN SUCH
RAPID SUCCESSION THAT HE HAD LITTLE OPPORTUNITY TO COMPLY.  APP. 49
51.  THIS WAS DISPUTED BY A POLICEMAN WHO TESTIFIED THAT EARLIER HE
TWICE ASKED APPELLANT TO LEAVE AND GAVE THE ADMONITION QUOTED IN THE
TEXT.  ID., AT 23-24.  OUR OWN EXAMINATION OF THE RECORD INDICATES THAT
THE KENTUCKY COURTS' RESOLUTION OF THIS FACTUAL DISPUTE WAS A FAIR
ONE.  CF. COX V. LOUISIANA, 379 U.S. 536, 545 N. 8 (1965). 

/2/  IN HIS BRIEF APPELLANT MAKES A PASSING REFERENCE TO THE
POSSIBILITY OF VIOLENCE ON THE PART OF POLICE AND SUGGESTS THAT HE
REMAINED ON THE SCENE TO AVERT MISDEEDS OR TO BE A POTENTIAL WITNESS TO
THEM.  YET HE BUILDS NO FACTUAL BASIS FOR A REASONABLE APPREHENSION OF
VIOLENCE AND SEEMINGLY DISPELS WHATEVER FORCE SUCH A CONTENTION MIGHT
HAVE WHEN HE STATES IN HIS BRIEF:  "IN THE OVERWHELMING MAJORITY OF
CASES, THAT SUSPICION (OF POLICE BRUTALITY) IS UNDOUBTEDLY WRONG, BUT
IT IS THERE."  BRIEF FOR APPELLANT 36. 

/3/  APPELLANT ATTACKS ON OVERBREADTH GROUNDS OTHER SUBSECTIONS OF
THE DISORDERLY CONDUCT STATUTE, SUCH AS THOSE THAT PROHIBIT THE MAKING
OF AN "UNREASONABLE NOISE" AND THE USE OF "ABUSIVE OR OBSCENE
LANGUAGE."  KY. REV. STAT. SECS. 437.016(B), (C) (SUPP. 1968).  BUT
COLTEN WAS NOT CONVICTED OF VIOLATING THESE SUBSECTIONS AND THEY ARE
NOT PROPERLY BEFORE US IN THIS CASE. 

/4/  E.G., ARIZ. REV. STAT. ANN. SEC. 22-371 ET SEQ. (1956 AND SUPP.
1971-1972); ARK. STAT. ANN. SEC. 44-501 ET SEQ. (1964); COLO. RULE
CRIM. PROC. 37(F); FLA. STAT. ANN. SEC. 924.41 ET SEQ. (SUPP. 1972
1973); IND. ANN. STAT. SEC. 9-713 ET SEQ. (1956 AND SUPP. 1971); KAN.
STAT. ANN. SEC. 22-3610 ET SEQ. (SUPP. 1971); ME. DIST. CT. CRIM. RULE
37 ET SEQ.; MD. ANN. CODE, ART. 5, SEC. 43 (1968); MICH. STAT. ANN.
SEC. 28.1226 (SUPP. 1972); MINN. STAT. SECS. 488.20, 633.20 ET SEQ.
(1969); MISS.  CODE ANN. SECS. 1201, 1202 (SUPP. 1971); MO. SUP. CT.
RULE 22; MONT. REV. CODES ANN. SEC. 95-2001 ET SEQ. (1947); NEB. REV.
STAT. SEC. 29-601 ET SEQ. (1964); NEV. REV. STAT. SEC. 189.010 ET SEQ.
(1969); N.H. REV. STAT. ANN. SECS. 502:18, 502-A:11-12 (1968); N.M.
STAT. ANN. SEC. 26-15-1 ET SEQ. (SUPP. 1971); N.C. GEN. STAT. SECS. 15
177 ET SEQ., 20-138 (1965 AND SUPP. 1971); N.D. CENT. CODE SEC. 33-12
40 ET SEQ. (1960); PA. STAT. ANN., TIT. 42, SEC. 3001 ET SEQ. (SUPP.
1972-1973); PA. CONST., SCHED.  ART.  5, SEC. 16(R)(III)
(PHILADELPHIA); TEX. CODE CRIM. PROC., ARTS. 44.17, 45.10 (1966); VA.
CODE ANN. SEC. 16.1-129 ET SEQ. (1950); WASH. REV. CODE SEC. 3.50.380
ET SEQ. (SUPP. 1971); W. VA. CODE ANN. SEC. 50-18-1 ET SEQ. (1966 AND
SUPP. 1971). 

/5/  MISDEMEANORS ARE DEFINED AS THOSE CRIMES PUNISHABLE BY A
MAXIMUM OF ONE YEAR IN JAIL AND A $500 FINE.  KY. REV. STAT. SECS.
25.010, 26.010 (1962 AND SUPP. 1968). 

/6/  WHAT THE KENTUCKY COURT OF APPEALS CALLS INFERIOR COURTS
INCLUDE COUNTY, QUARTERLY, JUSTICE'S AND POLICE COURTS.  IN ALL CASES
IN WHICH THE PUNISHMENT IS LIMITED TO A FINE OF $20, THE INFERIOR
COURTS HAVE ORIGINAL JURISDICTION.  KY. REV. STAT. SEC. 25.010 (1962). 
IN ALL OTHER MISDEMEANOR CASES THEIR JURISDICTION IS CONCURRENT WITH
THAT OF THE CIRCUIT COURTS. 

/7/  KY. REV. STAT. SEC. 23.032 (SUPP. 1968).  KENTUCKY DENOMINATES
AN APPLICATION FOR A TRIAL DE NOVO AN "APPEAL."  HOWEVER, THE RIGHT TO
A NEW TRIAL IS UNCONDITIONAL AND EXISTS EVEN WHEN A DEFENDANT SEEKS
REDETERMINATION OF QUESTIONS OF LAW.  KY. RULES CRIM. PROC. 12.02,
12.06. 

/8/  A GENERAL DISCUSSION OF HOW THESE COURTS OPERATE MAY BE FOUND
IN 47 AM.JUR.  2D, JUSTICES OF THE PEACE SECS. 49-120. 

/9/  E.G., MASSACHUSETTS, NORTH CAROLINA, PENNSYLVANIA.  MANN V.
COMMONWEALTH,-- MASS.-- , 271 N.E.2D 331 (1971); STATE V. SPENCER, 276
N.C. 535, 173 S.E.2D 765 (1970); PA. STAT. ANN., TIT. 42, SEC. 3001 ET
SEQ. (SUPP. 1972-1973); PA. CONST., SCHED.  ART.  5, SEC. 16(R)(III)
(PHILADELPHIA).     /10/  E.G., NORTH CAROLINA, VIRGINIA.  STATE V.
SPARROW, 276 N.C. 499, 173 S.E.2D 897 (1970); EVANS V. CITY OF
RICHMOND, 210 VA. 403, 171 S.E.2D 247 (1969). 

/11/  SEE, E.G., PEOPLE V. OLARY, 382 MICH. 559, 170 N.W.2D 842
(1969); STATE V. DEBONIS, 58 N.J. 182, 276 A.2D 137 (1971).  HOWEVER,
THE TRIAL JUDGE IN THE FAYETTE QUARTERLY COURT, WHERE COLTEN WAS TRIED,
IS A PROFESSIONAL. 

/12/  NORTH CAROLINA V. PEARCE, 395 U.S. 711 (1969), APPLIES:
BRONSTEIN V. SUPERIOR COURT, 106 ARIZ. 251, 475 P.2D 235 (1970); STATE
V. SHAK, 51 HAW.  626, 466 P.2D 420 (1970); ELDRIDGE V. STATE, 256 IND.
113, 267 N.E.2D 48 (1971); CHERRY V. STATE, 9 MD.APP.  416, 264 A.2D
887 (1970); COMMONWEALTH V. HARPER, 219 PA.SUPER.  100, 280 A.2D 637
(1971). 

CONTRA:  MANN V. COMMONWEALTH,-- MASS.-- , 271 N.E.2D 331 (1971);
PEOPLE V. OLARY, 382 MICH. 559, 170 N.W.2D 842 (1969); STATE V.
STANOSHECK, 186 NEB. 17, 180 N.W.2D 226 (1970); STATE V. SPARROW, 276
N.C. 499, 173 S.E.2D 897 (1970); EVANS V. CITY OF RICHMOND, 210 VA.
403, 171 S.E.2D 247 (1969). 

NEW MEXICO PROHIBITS ENHANCED SENTENCING ALTOGETHER.  N.M. STAT.
ANN. SEC. 36-15-3 (SUPP. 1971). 

/13/  PEARCE APPLIES:  RICE V. NORTH CAROLINA, 434 F.2D 297 (CA4
1970), VACATED AND REMANDED ON GROUND OF POSSIBLE MOOTNESS, 404 U.S.
244 (1971); CONTRA:  LEMIEUX V. ROBBINS, 414 F.2D 353 (CA1 1969), CERT.
DENIED, 397 U.S. 1017 (1970).  SEE ALSO MANNS V. ALLMAN, 324 F.SUPP. 
1149 (WD VA. 1971), HOLDING THAT PEARCE DOES NOT APPLY WHERE AN
ENHANCED PENALTY IS IMPOSED BY A JURY RATHER THAN A JUDGE. 

/14/  IN COLTEN'S CASE THE SUPERIOR COURT JUDGE DID KNOW ABOUT THE
$10 FINE.  COLTEN'S COUNSEL IN CLOSING ARUGMENT STATED WHAT THE PENALTY
HAD BEEN, APP. 93, ALTHOUGH CLEARLY HE NEED NOT HAVE DONE SO. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS CASE AROSE IN THE AFTERMATH OF A VISIT OF THE PRESIDENT'S WIFE
TO LEXINGTON, KENTUCKY, WHERE NOTHING UNTOWARD HAPPENED.  AFTER HER
PLANE HAD LEFT, APPELLANT AND A GROUP OF HIS FRIENDS GOT INTO "SOME SIX
TO TEN CARS" AND STARTED DOWN THE ACCESS ROAD LEADING FROM THE AIRPORT
TO THE MAIN HIGHWAY.  THE LEAD CAR WAS STOPPED BY THE POLICE BECAUSE OF
AN EXPIRED LICENSE PLATE AND AT THE OFFICER'S REQUEST, PULLED ONTO THE
SHOULDER OF THE ACCESS ROAD.  APPELLANT, WHO FOLLOWED, ALSO PULLED ONTO
THE SHOULDER AS DID THE OTHER CARS IN THE GROUP.  SO THERE WERE NO CARS
BELONGING TO APPELLANT'S GROUP BLOCKING TRAFFIC. 

THE PEOPLE IN THE CARS, HOWEVER, WALKED AROUND, SOME TALKING WITH
THE POLICE, AND APPELLANT TALKING MOSTLY WITH THE DRIVER OF THE LEAD
CAR.  APPELLANT CLAIMED THAT HE ONLY WANTED TO ADVISE THE MAN WHO WAS
GETTING THE CITATION OF HIS RIGHTS, AND TO HELP ARRANGE FOR THE DRIVER
AND PASSENGERS IN THE LEAD CAR TO GET TO LEXINGTON.  THE COURT OF
APPEALS OF KENTUCKY, HOWEVER, SAID THAT "COLTEN'S REAL INTENT WAS
SIMPLY TO AGGRAVATE, HARASS, ANNOY AND INCONVENIENCE THE POLICE, FOR NO
PURPOSE OTHER THAN THE PLEASURE OF AGGRAVATION, HARASSMENT, ANNOYANCE
AND INCONVENIENCE."  467 S.W.2D 374,376. 

THE STATUTE UNDER WHICH PETITIONER WAS CONVICTED READ IN RELEVANT
PART AS FOLLOWS:  /1/ 

     "(1) A PERSON IS GUILTY OF DISORDERLY CONDUCT IF, WITH INTENT

  TO CAUSE PUBLIC INCONVENIENCE, ANNOYANCE OR ALARM, OR RECKLESSLY

  CREATING A RISK THEREOF, HE:

        .          .          .          . 

     "(F) CONGREGATES WITH OTHER PERSONS IN A PUBLIC PLACE AND

  REFUSES TO COMPLY WITH A LAWFUL ORDER OF THE POLICE TO

  DISPERSE.  . . . " 

THE COURT OF APPEALS SUSTAINED THE STATUTE AS APPLIED BECAUSE THE
INCONVENIENCE /2/  AND ANNOYANCE TO THE POLICE FAR OUTWEIGHED
APPELLANT'S SPEECH WHICH FELL "FAR BELOW THE LEVEL OF MINIMUM SOCIAL
VALUE."  467 S.W.2D,AT 377.  THAT COURT, CITING OUR OBSCENITY CASES,
SAID IF "THE LACK OF REDEEMING SOCIAL VALUE IS A BASIS UPON WHICH THE
RIGHT OF FREEDOM OF SPEECH MAY BE REQUIRED TO YIELD TO THE PROTECTION
OF CONTEMPORARY STANDARDS OF MORALITY . . . IT WOULD SEEM THAT THE
PUBLIC'S INTEREST IN BEING PROTECTED FROM INCONVENIENCE, ANNOYANCE OR
ALARM SHOULD PREVAIL OVER ANY CLAIMED RIGHT TO UTTER SPEECH THAT HAS NO
SOCIAL VALUE."  IBID. 

BUT THE SPEECH INVOLVED HERE WAS NONEROTIC, HAVING NO SUGGESTION OR
FLAVOR OF THE PORNOGRAPHIC. 

THE SPEECH HERE WAS QUIET, NOT BOISTEROUS, AND IT WAS DEVOID OF
"FIGHTING WORDS." 

MOREOVER, THIS WAS NOT A CASE WHERE SPEECH HAD MOVED INTO ACTION,
INVOLVING OVERT ACTS.  THERE WERE NO FISTICUFFS, NO DISORDERLY CONDUCT
IN THE NORMAL MEANING OF THE WORDS. 

THE COURT OF APPEALS SAID "COLTEN WAS NOT SEEKING TO EXPRESS A
THOUGHT TO ANY LISTENER OR TO DISSEMINATE ANY IDEA."  467 S.W.2D,AT
378.  NOR WAS HE, IT SAID, "EXERCISING THE RIGHT OF PEACEABLE
ASSEMBLY."  IBID. 

HE WAS, HOWEVER, SPEAKING TO A REPRESENTATIVE OF GOVERNMENT, THE
POLICE.  AND IT IS TO GOVERNMENT THAT ONE GOES "FOR A REDRESS OF
GRIEVANCES," TO USE AN ALMOST FORGOTTEN PHRASE OF THE FIRST AMENDMENT. 
BUT IT IS SAID THAT THE PURPOSE WAS "TO CAUSE INCONVENIENCE AND
ANNOYANCE."  SINCE WHEN HAVE WE AMERICANS BEEN EXPECTED TO BOW
SUBMISSIVELY TO AUTHORITY AND SPEAK WITH AWE AND REVERENCE TO THOSE WHO
REPRESENT US?  THE CONSTITUTIONAL THEORY IS THAT WE THE PEOPLE ARE THE
SOVEREIGNS, THE STATE AND FEDERAL OFFICIALS ONLY OUR AGENTS.  WE WHO
HAVE THE FINAL WORD CAN SPEAK SOFTLY OR ANGRILY.  WE CAN SEEK TO
CHALLENGE AND ANNOY, AS WE NEED NOT STAY DOCILE AND QUIET.  THE
SITUATION MIGHT HAVE INDICATED THAT COLTEN'S TECHNIQUES WERE ILL-SUITED
TO THE MISSION HE WAS ON, THAT DIPLOMACY WOULD HAVE BEEN MORE
EFFECTIVE.  BUT AT THE CONSTITUTIONAL LEVEL SPEECH NEED NOT BE A
SEDATIVE; IT CAN BE DISRUPTIVE.  AS WE SAID IN TERMINIELLO V. CHICAGO,
337 U.S. 1, 4: 

     "(A) FUNCTION OF FREE SPEECH UNDER OUR SYSTEM OF GOVERNMENT IS

  TO INVITE DISPUTE.  IT MAY INDEED BEST SERVE ITS HIGH PURPOSE

  WHEN IT INDUCES A CONDITION OF UNREST, CREATES DISSATISFACTION

  WITH CONDITIONS AS THEY ARE, OR EVEN STIRS PEOPLE TO ANGER. 

  SPEECH IS OFTEN PROVOCATIVE AND CHALLENGING.  IT MAY STRIKE AT

  PREJUDICES AND PRECONCEPTIONS AND HAVE PROFOUND UNSETTLING

  EFFECTS AS IT PRESSES FOR ACCEPTANCE OF AN IDEA." 

UNDER THAT TEST THIS CONVICTION SHOULD BE SET ASIDE. 

/1/  KY. REV. STAT. SEC. 437.016 (SUPP. 1968). 

/2/  NEITHER APPELLANT NOR ANY IN HIS GROUP BLOCKED TRAFFIC, THEIR
CARS BEING PARKED ON THE SHOULDER OF THE ROAD.  ANY BLOCKING OF TRAFFIC
WAS CAUSED BY POLICE WHO PULLED UP TO SEE WHAT WAS GOING ON, LEAVING
THEIR PATROL CARS IN THE ACCESS ROAD.  SEE 467 S.W.2D 374, 376. 

MR. JUSTICE MARSHALL, DISSENTING. 

IN MY VIEW, NORTH CAROLINA V. PEARCE, 395 U.S. 711 (1969), REQUIRES
A REVERSAL OF THIS CASE. 

IN THIS CASE THE COURT CORRECTLY EVALUATES KENTUCKY'S PROCEDURE:
"(A) DEFENDANT CONVICTED AFTER A TRIAL OR PLEA IN AN INFERIOR COURT MAY
NOT SEEK ORDINARY APPELLATE REVIEW OF THE INFERIOR COURT'S RULING.  HIS
RECOURSE IS THE TRIAL DE NOVO."  FROM THIS THE CONCLUSION IS REACHED
THAT THE "TRIAL DE NOVO" IS NOT AN APPEAL.  WHAT, THEN, IS IT? THE
PERTINENT KENTUCKY RULES PROVIDE:  12.01 MANNER OF TAKING 

     "(1) AN APPEAL TO THE CIRCUIT COURT IS TAKEN BY FILING WITH
THE

  CLERK THEREOF A CERTIFIED COPY OF THE JUDGMENT AND THE AMOUNT OF

  COSTS, AND CAUSING TO BE EXECUTED BEFORE THE CLERK A BOND TO THE

EFFECT THAT THE DEFENDANT WILL PAY THE COSTS OF THE APPEAL AND

  PERFORM THE JUDGMENT WHICH MAY BE RENDERED AGAINST HIM ON THE

  APPEAL; WHEREUPON, THE CLERK SHALL ISSUE AN ORDER TO THE JUDGE OR

  THE JUSTICE RENDERING THE JUDGMENT, TO STAY PROCEEDINGS THEREON,

  AND TO TRANSMIT TO THE OFFICE OF SAID CLERK ALL THE ORIGINAL

  PAPERS IN THE PROSECUTION. 

     "(2) THE APPLICABLE PROVISIONS GOVERNING BAIL SHALL APPLY TO

  THE BOND PROVIDED FOR IN SUBSECTION (1). 

     "(3) AFTER THE SERVICE OF THE ORDER TO STAY PROCEEDINGS, NO

  EXECUTION SHALL BE ISSUED FROM THE INFERIOR COURT, AND ANY

  OFFICER ON WHOM THE ORDER IS SERVED SHALL RETURN THE EXECUTION IN

  HIS HANDS AS SUSPENDED BY APPEAL." 

12.06 SCHEDULE AND MANNER OF TRIAL; JUDGMENT 

     "APPEALS TAKEN TO THE CIRCUIT COURT SHALL BE DOCKETED BY THE

  CLERK THEREOF AS A REGULAR CRIMINAL PROSECUTION AND SHALL BE

TRIED ANEW, AS IF NO JUDGMENT HAD BEEN RENDERED, AND THE JUDGMENT

  SHALL BE CONSIDERED AS AFFIRMED TO THE EXTENT OF THE PUNISHMENT,

  IF ANY, ADJUDGED AGAINST THE DEFENDANT IN THE CIRCUIT COURT, AND

  THEREUPON HE SHALL BE ADJUDGED TO PAY THE COSTS OF THE APPEAL. 

  IF AN APPEAL TAKEN TO THE CIRCUIT COURT BE DISMISSED, THE

  JUDGMENT OF THE COURT FROM WHICH IT WAS TAKEN SHALL STAND

  AFFIRMED AND THE COSTS OF THE APPEAL SHALL BE PAID BY THE PARTY

  WHOSE APPEAL IS DISMISSED." 

IN PEARCE THIS COURT REAFFIRMED THE RESTRICTIONS UPON HEAVIER
SENTENCES AFTER APPEAL: 

     "IT CAN HARDLY BE DOUBTED THAT IT WOULD BE A FLAGRANT
VIOLATION

  OF THE FOURTEENTH AMENDMENT FOR A STATE TRIAL COURT TO FOLLOW AN

  ANNOUNCED PRACTICE OF IMPOSING A HEAVIER SENTENCE UPON EVERY

  RECONVICTED DEFENDANT FOR THE EXPLICIT PURPOSE OF PUNISHING THE

  DEFENDANT FOR HIS HAVING SUCCEEDED IN GETTING HIS ORIGINAL

  CONVICTION SET ASIDE.  WHERE, AS IN EACH OF THE CASES BEFORE US,

  THE ORIGINAL CONVICTION HAS BEEN SET ASIDE BECAUSE OF A

  CONSTITUTIONAL ERROR, THE IMPOSITION OF SUCH A PUNISHMENT,

  'PENALIZING THOSE WHO CHOOSE TO EXERCISE' CONSTITUTIONAL RIGHTS,

  'WOULD BE PATENTLY UNCONSTITUTIONAL.'  UNITED STATES V. JACKSON,

  390 U.S. 570, 581.  AND THE VERY THREAT INHERENT IN THE EXISTENCE

OF SUCH A PUNITIVE POLICY WOULD, WITH RESPECT TO THOSE STILL IN

  PRISON, SERVE TO 'CHILL THE EXERCISE OF BASIC CONSTITUTIONAL

  RIGHTS.'  ID., AT 582.  SEE ALSO GRIFFIN V. CALIFORNIA, 380 U.S.

  609; CF. JOHNSON V. AVERY, 393 U.S. 483.  BUT EVEN IF THE FIRST

  CONVICTION HAS BEEN SET ASIDE FOR NONCONSTITUTIONAL ERROR, THE

  IMPOSITION OF A PENALTY UPON THE DEFENDANT FOR HAVING

  SUCCESSFULLY PURSUED A STATUTORY RIGHT OF APPEAL OR COLLATERAL

  REMEDY WOULD BE NO LESS A VIOLATION OF DUE PROCESS OF LAW.  'A

  NEW SENTENCE, WITH ENHANCED PUNISHMENT, BASED UPON SUCH A REASON,

  WOULD BE A FLAGRANT VIOLATION OF THE RIGHTS OF THE DEFENDANT.' 

  NICHOLS V. UNITED STATES, 106 F. 672, 679.  A COURT IS 'WITHOUT

  RIGHT TO . . . PUT A PRICE ON AN APPEAL.  A DEFENDANT'S EXERCISE

  OF A RIGHT OF APPEAL MUST BE FREE AND UNFETTERED.  . . . (IT IS

  UNFAIR TO USE THE GREAT POWER GIVEN TO THE COURT TO DETERMINE

  SENTENCE TO PLACE A DEFENDANT IN THE DILEMMA OF MAKING AN UNFREE

  CHOICE.'  WORCESTER V. COMMISSIONER, 370 F.2D 713, 718.  SEE

  SHORT V. UNITED STATES, 120 U.S.APP.D.C. 165, 167, 344 F.2D 550,

  552.  'THIS COURT HAS NEVER HELD THAT THE STATES ARE REQUIRED TO

  ESTABLISH AVENUES OF APPELLATE REVIEW, BUT IT IS NOW FUNDAMENTAL

  THAT, ONCE ESTABLISHED, THESE AVENUES MUST BE KEPT FREE OF

  UNREASONED DISTINCTIONS THAT CAN ONLY IMPEDE OPEN AND EQUAL

  ACCESS TO THE COURTS.  GRIFFIN V. ILLINOIS, 351 U.S. 12; DOUGLAS

  V. CALIFORNIA, 372 U.S. 353; LANE V. BROWN, 372 U.S. 477; DRAPER

  V. WASHINGTON, 372 U.S. 487.'  RINALDI V. YEAGER, 384 U.S. 305,

  310-311."  395 U.S.,AT 723-725. 

THIS COURT TODAY SEEKS TO ESCAPE THIS DETERMINATION BY SUCH
CONCLUSIONS AS: 

     "OUR VIEW OF THE KENTUCKY TWO-TIER SYSTEM OF ADMINISTERING

  CRIMINAL JUSTICE, HOWEVER, DOES NOT LEAD US TO BELIEVE, AND THERE

  IS NOTHING IN THE RECORD OR PRESENTED IN THE BRIEFS TO SHOW, THAT

  THE HAZARD OF BEING PENALIZED FOR SEEKING A NEW TRIAL, WHICH

  UNDERLAY THE HOLDING OF PEARCE, ALSO INHERES IN THE DE NOVO TRIAL

  ARRANGEMENT.  NOR ARE WE CONVINCED THAT DEFENDANTS CONVICTED IN

  KENTUCKY'S INFERIOR COURTS WOULD BE DETERRED FROM SEEKING A

  SECOND TRIAL OUT OF FEAR OF JUDICIAL VINDICTIVENESS.  THE

  POSSIBILITY OF VINDICTIVENESS, FOUND TO EXIST IN PEARCE, IS NOT

  INHERENT IN THE KENTUCKY TWO-TIER SYSTEM." 

TO THE CONTRARY, APPELLANT'S JURISDICTIONAL STATEMENT CITES US TO AN
ORDER OF THE SAME JUDGE WHO TRIED THIS CASE "DE NOVO" IN WHICH HE
ACCEPTED A MOTION TO DISMISS AN APPEAL IN A SIMILAR CASE WITH THE
FOLLOWING STATEMENT: 

     "THE COMMONWEALTH ATTORNEY HAS ADVISED THE COURT THAT HE DOES

  NOT WISH TO OPPOSE THE DEFENDANT'S MOTION TO DISMISS. 

      "WHILE THE DEFENDANT MAY BE CORRECT IN HIS ASSUMPTION THAT
THE

  CITIZENS OF THIS COMMUNITY HAVE A HOSTILE ATTITUDE TOWARD

  STUDENTS WHO WOULD ATTEMPT TO DISRUPT THE UNIVERSITY, IT MAY BE

  THAT THIS HOSTILITY HAS BEEN EARNED, AND IT IS CONCEIVABLE THAT A

  JURY COMPOSED OF CITIZENS OF THIS COMMUNITY MIGHT IMPOSE A MORE

  SEVERE SENTENCE THAN THAT IMPOSED IN THE COURT BELOW. 

  NONETHELESS, THE COURT AFTER HAVING REVIEWED THE LAW SUBMITTED BY

  THE DEFENDANT AND HAVING CONDUCTED ITS OWN RESEARCH OF THE LAW IS

OF THE OPINION THAT THE DEFENDANT HAS A RIGHT TO DISMISS HIS

  APPEAL AND THAT HE CANNOT BE FORCED INTO A NEW TRIAL IF HE DOES

  NOT DESIRE TO CONTINUE HIS APPEAL.  FOR THAT REASON THE

  DEFENDANT'S MOTION TO HAVE HIS APPEAL DISMISSED BE AND THE SAME

  IS HEREBY GRANTED." 

THE RECORD IN THIS CASE ALSO SHOWS THAT THE TRIAL JUDGE WAS INFORMED
OF THE LOWER $10 FINE IN THE ORIGINAL TRIAL AND CONSEQUENTLY KNOWINGLY
INCREASED IT TO $50.  FINALLY, IT SHOULD NOT BE FORGOTTEN THAT UNDER
THIS COURT'S RULING TODAY HE COULD HAVE INCREASED IT TO $500 PLUS SIX
MONTHS IN JAIL. 

THE COURT SUGGESTS THAT FOR SOME REASON THERE IS LESS DANGER OF
VINDICTIVE SENTENCING ON THE SECOND TRIAL IN THIS CONTEXT THAN AFTER AN
ORDINARY APPEAL.  APPEAL.  SPECIFICALLY, THE COURT FAULTS THE APPELLANT
FOR FAILING TO PRESENT EVIDENCE THAT THE DANGER OF VINDICTIVENESS IS AS
GREAT HERE AS IN THE PRECISE CONTEXT PRESENTED IN PEARCE.  BUT PEARCE
DID NOT REST ON EVIDENCE THAT MOST TRIAL JUDGES ARE HOSTILE TO
DEFENDANTS WHO OBTAIN A NEW TRIAL AFTER APPEAL.  PEARCE WAS BASED,
RATHER, ON THE RECOGNITION THAT WHENEVER A DEFENDANT IS TRIED TWICE FOR
THE SAME OFFENSE, THERE IS INHERENT IN THE SITUATION THE DANGER OF
VINDICTIVE SENTENCING THE SECOND TIME AROUND, AND THAT THIS DANGER WILL
DETER SOME DEFENDANTS FROM SEEKING A SECOND TRIAL.  THIS DANGER, WITH
ITS DETERRENT EFFECT, IS EXACTLY THE SAME EVEN THOUGH THE SECOND TRIAL
TAKES PLACE IN A DIFFERENT COURT FROM THE FIRST.  CERTAINLY A DEFENDANT
HAS GOOD REASON TO FEAR THAT HIS CASE WILL NOT BE WELL RECEIVED BY A
SECOND COURT AFTER HE REJECTS A DISPOSITION AS FAVORABLE AS THE
SENTENCE ORIGINALLY IMPOSED IN THIS CASE. 

PEARCE WAS DIRECTED TOWARD A NEW TRIAL AFTER AN APPELLATE REVERSAL. 
THIS CASE INVOLVES A NEW TRIAL WITHOUT AN APPELLATE REVERSAL.  THE CORE
PROBLEM IS THE SECOND TRIAL.  IN BOTH CASES WE HAVE A SECOND FULL AND
COMPLETE TRIAL.  PEARCE SHOULD CONTROL. 

ALVIN L. GOLDMAN ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF AND SANDFORD JAY ROSEN. 

ROBERT W. WILLMOTT, JR., ASSISTANT ATTORNEY GENERAL OF KENTUCKY,
ARGUED THE CAUSE FOR APPELLEE PRO HAC VICE.  WITH HIM ON THE BRIEF WAS
ED W. HANCOCK, ATTORNEY GENERAL. 
..END :




JAMES V. STRANGE, 407 U.S. 128 


       JAMES, JUDICIAL ADMINISTRATOR, ET AL. V. STRANGE

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF KANSAS

        NO. 71-11.  ARGUED MARCH 22, 1972-- DECIDED JUNE 12, 1972 


KANSAS RECOUPMENT STATUTE ENABLING STATE TO RECOVER IN SUBSEQUENT
CIVIL PROCEEDINGS LEGAL DEFENSE FEES FOR INDIGENT DEFENDANTS,
INVALIDATED BY DISTRICT COURT AS AN INFRINGEMENT ON THE RIGHT TO
COUNSEL, HELD TO VIOLATE THE EQUAL PROTECTION CLAUSE IN THAT, BY VIRTUE
OF THE STATUTE, INDIGENT DEFENDANTS ARE DEPRIVED OF THE ARRAY OF
PROTECTIVE EXEMPTIONS KANSAS HAS ERECTED FOR OTHER CIVIL JUDGMENT
DEBTORS.  PP. 129-142. 

323 F.SUPP.  1230, AFFIRMED. 

POWELL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A CONSTITUTIONAL CHALLENGE TO A KANSAS RECOUPMENT
STATUTE, WHEREBY THE STATE MAY RECOVER IN SUBSEQUENT CIVIL PROCEEDINGS
COUNSEL AND OTHER LEGAL DEFENSE FEES EXPENDED FOR THE BENEFIT OF
INDIGENT DEFENDANTS.  THE THREE-JUDGE COURT BELOW HELD THE STATUTE
UNCONSTITUTIONAL, FINDING IT TO BE AN IMPERMISSIBLE BURDEN UPON THE
RIGHT TO COUNSEL ESTABLISHED IN GIDEON V. WAINWRIGHT, 372 U.S. 335
(1963).  /1/  THE STATE APPEALED AND WE NOTED JURISDICTION, 404 U.S.
982. 

THE RELEVANT FACTS ARE NOT DISPUTED.  APPELLEE STRANGE WAS ARRESTED
AND CHARGED WITH FIRST-DEGREE ROBBERY UNDER KANSAS LAW.  HE APPEARED
BEFORE A MAGISTRATE, PROFESSED INDIGENCY, AND ACCEPTED APPOINTED
COUNSEL UNDER THE KANSAS AID TO INDIGENT DEFENDANTS ACT.  /2/  APPELLEE
WAS THEN TRIED IN THE SHAWNEE COUNTY DISTRICT COURT ON THE REDUCED
CHARGE OF POCKET PICKING.  HE PLEADED GUILTY AND RECEIVED A SUSPENDED
SENTENCE AND THREE YEARS' PROBATION. 

THEREAFTER, APPELLEE'S COUNSEL APPLIED TO THE STATE FOR PAYMENT FOR
HIS SERVICES AND RECEIVED $500 FROM THE AID TO INDIGENT DEFENDANTS
FUND.  PURSUANT TO KANSAS' RECOUPMENT STATUTE, THE KANSAS JUDICIAL
ADMINISTRATOR REQUESTED APPELLEE TO REIMBURSE THE STATE WITHIN 60 DAYS
OR A JUDGMENT FOR THE $500 WOULD BE DOCKETED AGAINST HIM.  APPELLEE
CONTENDS THIS PROCEDURE VIOLATES HIS CONSTITUTIONAL RIGHTS. 

        I 

IT IS NECESSARY AT THE OUTSET TO EXPLAIN THE TERMS AND OPERATION OF
THE CHALLENGED STATUTE.  /3/  WHEN THE STATE PROVIDES AN INDIGENT
DEFENDANT WITH COUNSEL OR OTHER LEGAL SERVICES, THE DEFENDANT BECOMES
OBLIGATED TO THE STATE FOR THE AMOUNT EXPENDED IN HIS BEHALF.  WITHIN
30 DAYS OF THE EXPENDITURE, THE DEFENDANT IS NOTIFIED OF HIS DEBT AND
GIVEN 60 DAYS TO REPAY IT.  /4/  IF THE SUM REMAINS UNPAID AFTER THE 60
DAY PERIOD, A JUDGMENT IS DOCKETED AGAINST DEFENDANT FOR THE UNPAID
AMOUNT.  SIX PERCENT ANNUAL INTEREST RUNS ON THE DEBT FROM THE DATE THE
EXPENDITURE WAS MADE.  THE DEBT BECOMES A LIEN ON THE REAL ESTATE OF
DEFENDANT AND MAY BE EXECUTED BY GARNISHMENT OR IN ANY OTHER MANNER
PROVIDED BY THE KANSAS CODE OF CIVIL PROCEDURE.  THE INDIGENT DEFENDANT
IS NOT, HOWEVER, ACCORDED ANY OF THE EXEMPTIONS PROVIDED BY THAT CODE
FOR OTHER JUDGMENT DEBTORS EXCEPT THE HOMESTEAD EXEMPTION.  IF THE
JUDGMENT IS NOT EXECUTED WITHIN FIVE YEARS, IT BECOMES DORMANT AND
CEASES TO OPERATE AS A LIEN ON THE DEBTOR'S REAL ESTATE, BUT MAY BE
REVIVED IN THE SAME MANNER AS OTHER DORMANT JUDGMENTS UNDER THE CODE OF
CIVIL PROCEDURE.  /5/ 

SEVERAL FEATURES OF THIS PROCEDURE MERIT MENTION.  THE ENTIRE
PROGRAM IS ADMINISTERED BY THE JUDICIAL ADMINISTRATOR, A PUBLIC
OFFICIAL, BUT APPOINTED COUNSEL ARE PRIVATE PRACTITIONERS.  THE STATUTE
APPARENTLY LEAVES TO ADMINISTRATIVE DISCRETION WHETHER, AND UNDER WHAT
CIRCUMSTANCES, ENFORCEMENT OF THE JUDGMENT WILL BE SOUGHT.  RECOVERED
SUMS DO, HOWEVER, REVERT TO THE AID TO INDIGENT DEFENDANTS FUND. 

THE KANSAS STATUTE IS BUT ONE OF MANY STATE RECOUPMENT LAWS
APPLICABLE TO COUNSEL FEES AND EXPENDITURES PAID FOR INDIGENT
DEFENDANTS.  /6/  THE STATUTES VARY WIDELY IN THEIR TERMS.  UNDER SOME
STATUTES, THE INDIGENT'S LIABILITY IS TO THE COUNTY IN WHICH HE IS
TRIED; IN OTHERS TO THE STATE.  ALABAMA AND INDIANA MAKE ASSESSMENT AND
RECOVERY OF AN INDIGENT'S COUNSEL FEES DISCRETIONARY WITH THE COURT. 
FLORIDA'S RECOUPMENT LAW HAS NO STATUTE OF LIMITATIONS AND THE STATE IS
DEEMED TO HAVE A PERPETUAL LIEN AGAINST THE DEFENDANT'S REAL AND
PERSONAL PROPERTY AND ESTATE.  /7/  IDAHO, ON THE OTHER HAND, HAS A
FIVE-YEAR STATUTE OF LIMITATIONS ON THE RECOVERY OF AN "INDIGENT'S"
CONCEALED ASSETS AT THE TIME OF TRIAL AND A THREE-YEAR STATUTE FOR THE
RECOVERY OF LATER ACQUIRED ONES.  IN VIRGINIA AND WEST VIRGINIA, THE
AMOUNT PAID TO COURT-APPOINTED COUNSEL IS ASSESSED ONLY AGAINST
CONVICTED DEFENDANTS AS A PART OF COSTS, ALTHOUGH THE MAJORITY OF STATE
RECOUPMENT LAWS APPLY WHETHER OR NOT THE DEFENDANT PREVAILS.  IT IS
THUS APPARENT THAT STATE RECOUPMENT LAWS AND PROCEDURES DIFFER
SIGNIFICANTLY IN THEIR PARTICULARS.  /8/  GIVEN THE WIDE DIFFERENCES IN
THE FEATURES OF THESE STATUTES, ANY BROADSIDE PRONOUNCEMENT ON THEIR
GENERAL VALIDITY WOULD BE INAPPROPRIATE. 

WE TURN THEREFORE TO THE KANSAS STATUTE, AWARE THAT OUR REVIEWING
FUNCTION IS A LIMITED ONE.  WE DO NOT INQUIRE WHETHER THIS STATUTE IS
WISE OR DESIRABLE, OR "WHETHER IT IS BASED ON ASSUMPTIONS
SCIENTIFICALLY SUBSTANTIATED."  ROTH V. UNITED STATES, 354 U.S. 476,
501 (1957) (SEPARATE OPINION OF HARLAN, J.).  MISGUIDED LAWS MAY
NONETHELESS BE CONSTITUTIONAL.  IT HAS BEEN NOTED BOTH IN THE BRIEFS
AND AT ARGUMENT THAT ONLY $17,000 HAS BEEN RECOVERED UNDER THE STATUTE
IN ITS ALMOST TWO YEARS OF OPERATION, AND THAT THIS AMOUNT IS
NEGLIGIBLE COMPARED TO THE TOTAL EXPENDED.  /9/  OUR TASK, HOWEVER, IS
NOT TO WEIGH THIS STATUTE'S EFFECTIVENESS BUT ITS CONSTITUTIONALITY. 
WHETHER THE RETURNS UNDER THE STATUTE JUSTIFY THE EXPENSE, TIME, AND
EFFORTS OF STATE OFFICIALS IS FOR THE ON-GOING SUPERVISION OF THE
LEGISLATIVE BRANCH. 

THE COURT BELOW INVALIDATED THIS STATUTE ON THE GROUNDS THAT IT
"NEEDLESSLY ENCOURAGES INDIGENTS TO DO WITHOUT COUNSEL AND CONSEQUENTLY
INFRINGES ON THE RIGHT TO COUNSEL AS EXPLICATED IN GIDEON V.
WAINWRIGHT, SUPRA."  323 F.SUPP.  1230, 1233.  IN GIDEON, COUNSEL HAD
BEEN DENIED AN INDIGENT DEFENDANT CHARGED WITH A FELONY BECAUSE HIS WAS
NOT A CAPITAL CASE.  THIS COURT OFTEN HAS VOIDED STATE STATUTES AND
PRACTICES WHICH DENIED TO ACCUSED INDIGENTS THE MEANS TO PRESENT
EFFECTIVE DEFENSES IN COURTS OF LAW.  DOUGLAS V. CALIFORNIA, 372 U.S.
353 (1963); DRAPER V. WASHINGTON, 372 U.S. 487 (1963); LANE V. BROWN,
372 U.S. 477 (1963); GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956).  HERE,
HOWEVER, KANSAS HAS ENACTED LAWS BOTH TO PROVIDE AND COMPENSATE FROM
PUBLIC FUNDS COUNSEL FOR THE INDIGENT.  /10/  THERE IS CERTAINLY NO
DENIAL OF THE RIGHT TO COUNSEL IN THE STRICTEST SENSE.  WHETHER THE
STATUTORY OBLIGATIONS FOR REPAYMENT IMPERMISSIBLY DETER THE EXERCISE OF
THIS RIGHT IS A QUESTION WE NEED NOT REACH, FOR WE FIND THE STATUTE
BEFORE US CONSTITUTIONALLY INFIRM ON OTHER GROUNDS. 

        II 

APPELLANTS HAVE ASSERTED IN ARGUMENT BEFORE THIS COURT THAT THE
STATUTE "HAS ATTEMPTED TO TREAT THEM (INDIGENT DEFENDANTS) THE SAME AS
WOULD ANY CIVIL JUDGMENT DEBTOR BE TREATED IN THE STATE COURTS.  . . .
"  /11/  AGAIN, IN THEIR BRIEF APPELLANTS ASSERT THAT "(FOR ALL
PRACTICAL PURPOSES THE METHODS AVAILABLE FOR ENFORCEMENT OF THE
JUDGMENT ARE THE SAME AS THOSE PROVIDED BY THE CODE OF CIVIL PROCEDURES
(SIC) OR ANY OTHER CIVIL JUDGMENT."  /12/  THE CHALLENGED PORTION OF
THE STATUTE THRICE ALLUDES TO MEANS OF DEBT RECOVERY PRESCRIBED BY THE
KANSAS CODE OF CIVIL PROCEDURE.  /13/ 

YET THE OSTENSIBLY EQUAL TREATMENT OF INDIGENT DEFENDANTS WITH OTHER
CIVIL JUDGMENT DEBTORS RECEDES SHARPLY AS ONE EXAMINES THE STATUTE MORE
CLOSELY.  THE STATUTE STIPULATES THAT SAVE FOR THE HOMESTEAD, "(NONE OF
THE EXEMPTIONS PROVIDED FOR IN THE CODE OF CIVIL PROCEDURE SHALL APPLY
TO ANY SUCH JUDGMENT.  . . . "  /14/  THIS PROVISION STRIPS FROM
INDIGENT DEFENDANTS THE ARRAY OF PROTECTIVE EXEMPTIONS KANSAS HAS
ERECTED FOR OTHER CIVIL JUDGMENT DEBTORS, INCLUDING RESTRICTIONS ON THE
AMOUNT OF DISPOSABLE EARNINGS SUBJECT TO GARNISHMENT, PROTECTION OF THE
DEBTOR FROM WAGE GARNISHMENT AT TIMES OF SEVERE PERSONAL OR FAMILY
SICKNESS, AND EXEMPTION FROM ATTACHMENT AND EXECUTION ON A DEBTOR'S
PERSONAL CLOTHING, BOOKS, AND TOOLS OF TRADE.  FOR THE HEAD OF A
FAMILY, THE EXEMPTIONS AFFORDED OTHER JUDGMENT DEBTORS BECOME MORE
EXTENSIVE, AND COVER FURNISHINGS, FOOD, FUEL, CLOTHING, MEANS OF
TRANSPORTATION, PENSION FUNDS, AND EVEN A FAMILY BURIAL PLOT OR CRYPT. 
/15/ 

OF THE ABOVE EXEMPTIONS, NONE IS MORE IMPORTANT TO A DEBTOR THAN THE
EXEMPTION OF HIS WAGES FROM UNRESTRICTED GARNISHMENT.  THE DEBTOR'S
WAGES ARE HIS SUSTENANCE, WITH WHICH HE SUPPORTS HIMSELF AND HIS
FAMILY.  THE AVERAGE LOW INCOME WAGE EARNER SPENDS NEARLY NINE-TENTHS
OF THOSE WAGES FOR ITEMS OF IMMEDIATE CONSUMPTION.  /16/  THIS COURT
HAS RECOGNIZED THE POTENTIAL OF CERTAIN GARNISHMENT PROCEEDINGS TO
"IMPOSE TREMENDOUS HARDSHIPS ON WAGE EARNERS WITH FAMILIES TO
SUPPORT."  SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337, 340 (1969). 
/17/  KANSAS HAS LIKEWISE PERCEIVED THE BURDEN TO A DEBTOR AND HIS
FAMILY WHEN WAGES MAY BE SUBJECT TO WHOLESALE GARNISHMENT. 
CONSEQUENTLY, UNDER ITS CODE OF CIVIL PROCEDURE, THE MAXIMUM WHICH CAN
BE GARNISHED IS THE LESSER OF 25% OF A DEBTOR'S WEEKLY DISPOSABLE
EARNINGS OR THE AMOUNT BY WHICH THOSE EARNINGS EXCEED 30 TIMES THE
FEDERAL MINIMUM HOURLY WAGE.  NO ONE CREDITOR MAY ISSUE MORE THAN ONE
GARNISHMENT DURING ANY ONE MONTH, AND NO EMPLOYER MAY DISCHARGE AN
EMPLOYEE BECAUSE HIS EARNINGS HAVE BEEN GARNISHED FOR A SINGLE
INDEBTEDNESS.  /18/  FOR KANSAS TO DENY PROTECTIONS SUCH AS THESE TO
THE ONCE CRIMINALLY ACCUSED IS TO RISK DENYING HIM THE MEANS NEEDED TO
KEEP HIMSELF AND HIS FAMILY AFLOAT. 

THE INDIGENT'S PREDICAMENT UNDER THIS STATUTE COMES INTO SHARPER
FOCUS WHEN COMPARED WITH THAT OF ONE WHO HAS HIRED COUNSEL IN HIS
DEFENSE.  SHOULD THE LATTER PROVE UNABLE TO PAY AND A JUDGMENT BE
OBTAINED AGAINST HIM, HIS OBLIGATION WOULD BECOME ENFORCEABLE UNDER THE
RELEVANT PROVISIONS OF THE KANSAS CODE OF CIVIL PROCEDURE.  BUT, UNLIKE
THE INDIGENT UNDER THE RECOUPMENT STATUTE, THE CODE'S EXEMPTIONS WOULD
PROTECT THIS JUDGMENT DEBTOR. 

IT MAY BE ARGUED THAT AN INDIGENT ACCUSED, FOR WHOM THE STATE HAS
PROVIDED COUNSEL, IS IN A DIFFERENT CLASS WITH RESPECT TO COLLECTION OF
HIS INDEBTEDNESS THAN A JUDGMENT CREDITOR WHOSE OBLIGATION AROSE FROM A
PRIVATE TRANSACTION.  BUT OTHER KANSAS STATUTES PROVIDING FOR
RECOUPMENT OF PUBLIC ASSISTANCE TO INDIGENTS DO NOT INCLUDE THE SEVERE
PROVISIONS IMPOSED ON INDIGENT DEFENDANTS IN THIS CASE.  KANSAS HAS
ENACTED, AS HAVE MANY OTHER STATES, LAWS FOR STATE RECOVERY OF PUBLIC
WELFARE ASSISTANCE WHEN PAID TO AN INELIGIBLE RECIPIENT.  /19/  YET THE
KANSAS WELFARE RECIPIENT, UNLIKE THE INDIGENT DEFENDANT, IS NOT DENIED
THE CUSTOMARY EXEMPTIONS.  /20/ 

WE RECOGNIZE, OF COURSE, THAT THE STATE'S CLAIM TO REIMBURSEMENT MAY
TAKE PRECEDENCE, UNDER APPROPRIATE CIRCUMSTANCES, OVER THE CLAIMS OF
PRIVATE CREDITORS AND THAT ENFORCEMENT PROCEDURES WITH RESPECT TO
JUDGMENTS NEED NOT BE IDENTICAL.  /21/  THIS DOES NOT MEAN, HOWEVER,
THAT A STATE MAY IMPOSE UNDULY HARSH OR DISCRIMINATORY TERMS MERELY
BECAUSE THE OBLIGATION IS TO THE PUBLIC TREASURY RATHER THAN TO A
PRIVATE CREDITOR.  THE STATE ITSELF IN THE STATUTE BEFORE US ANALOGIZES
THE JUDGMENT LIEN AGAINST THE INDIGENT DEFENDANT TO OTHER "JUDGMENTS
UNDER THE CODE OF CIVIL PROCEDURE."  BUT THE STATUTE THEN STRIPS THE
INDIGENT DEFENDANT OF THE VERY EXEMPTIONS DESIGNED PRIMARILY TO BENEFIT
DEBTORS OF LOW AND MARGINAL INCOMES. 

THE KANSAS STATUTE PROVIDES FOR RECOUPMENT WHETHER THE INDIGENT
DEFENDANT IS ACQUITTED OR FOUND GUILTY.  IF ACQUITTED, THE INDIGENT
FINDS HIMSELF OBLIGATED TO REPAY THE STATE FOR A SERVICE THE NEED FOR
WHICH RESULTED FROM THE STATE'S PROSECUTION.  IT IS DIFFICULT TO SEE
WHY SUCH A DEFENDANT, ADJUDGED TO BE INNOCENT OF THE STATE'S CHARGE,
SHOULD BE DENIED BASIC EXEMPTIONS ACCORDED ALL OTHER JUDGMENT DEBTORS. 
THE INDIGENT DEFENDANT WHO IS FOUND GUILTY IS UNIQUELY DISADVANTAGED IN
TERMS OF THE PRACTICAL OPERATION OF THE STATUTE.  A CRIMINAL CONVICTION
USUALLY LIMITS EMPLOYMENT OPPORTUNITIES.  THIS IS ESPECIALLY TRUE WHERE
A PRISON SENTENCE HAS BEEN SERVED.  IT IS IN THE INTEREST OF SOCIETY
AND THE STATE THAT SUCH A DEFENDANT, UPON SATISFACTION OF THE CRIMINAL
PENALTIES IMPOSED, BE AFFORDED A REASONABLE OPPORTUNITY OF EMPLOYMENT,
REHABILITATION AND RETURN TO USEFUL CITIZENSHIP.  THERE IS LIMITED
INCENTIVE TO SEEK LEGITIMATE EMPLOYMENT WHEN, AFTER SERVING A SENTENCE
DURING WHICH INTEREST HAS ACCUMULATED ON THE INDEBTEDNESS FOR LEGAL
SERVICES, THE INDIGENT KNOWS THAT HIS WAGES WILL BE GARNISHED WITHOUT
THE BENEFIT OF ANY OF THE CUSTOMARY EXEMPTIONS. 

APPELLEE IN THIS CASE HAS NOW MARRIED, WORKS FOR A MODEST WAGE, AND
HAS RECENTLY BECOME A FATHER.  TO DEPRIVE HIM OF ALL PROTECTION FOR HIS
WAGES AND INTIMATE PERSONALTY DISCOURAGES THE SEARCH FOR SELF
SUFFICIENCY WHICH MIGHT MAKE OF THE CRIMINALLY ACCUSED A CONTRIBUTING
CITIZEN.  NOT ONLY DOES THIS TREATMENT NOT ACCORD WITH THE TREATMENT OF
INDIGENT RECIPIENTS OF PUBLIC WELFARE OR WITH THAT OF OTHER CIVIL
JUDGMENT DEBTORS, /22/  BUT THE KANSAS STATUTE ALSO APPEARS TO BE ALONE
AMONG RECOUPMENT LAWS APPLICABLE TO INDIGENT DEFENDANTS IN EXPRESSLY
DENYING THEM THE BENEFIT OF BASIC DEBTOR EXEMPTIONS.  /23/

        III 

IN RINALDI V. YEAGER, 384 U.S. 305 (1966), THE COURT CONSIDERED A
SITUATION COMPARABLE IN SOME RESPECTS TO THE CASE AT HAND.  RINALDI
INVOLVED A NEW JERSEY STATUTE WHICH REQUIRED ONLY THOSE INDIGENT
DEFENDANTS WHO WERE SENTENCED TO CONFINEMENT IN STATE INSTITUTIONS TO
REIMBURSE THE STATE THE COSTS OF A TRANSCRIPT ON APPEAL.  IN RINALDI,
AS HERE, A BROAD GROUND OF DECISION WAS URGED, NAMELY, THAT THE STATUTE
UNDULY BURDENED AN INDIGENT'S RIGHT TO APPEAL.  THE COURT FOUND,
HOWEVER, A DIFFERENT BASIS FOR DECISION, HOLDING THAT "(TO FASTEN A
FINANCIAL BURDEN ONLY UPON THOSE UNSUCCESSFUL APPELLANTS WHO ARE
CONFINED IN STATE INSTITUTIONS . . . IS TO MAKE AN INVIDIOUS
DISCRIMINATION" IN VIOLATION OF THE EQUAL PROTECTION CLAUSE.  ID., AT
309.     RINALDI AFFIRMED THAT THE EQUAL PROTECTION CLAUSE "IMPOSES A
REQUIREMENT OF SOME RATIONALITY IN THE NATURE OF THE CLASS SINGLED
OUT."  ID., AT 308-309.  THIS REQUIREMENT IS LACKING WHERE, AS IN THE
INSTANT CASE, THE STATE HAS SUBJECTED INDIGENT DEFENDANTS TO SUCH
DISCRIMINATORY CONDITIONS OF REPAYMENT.  THIS CASE, TO BE SURE, DIFFERS
FROM RINALDI IN THAT HERE ALL INDIGENT DEFENDANTS ARE TREATED ALIKE. 
BUT TO IMPOSE THESE HARSH CONDITIONS ON A CLASS OF DEBTORS WHO WERE
PROVIDED COUNSEL AS REQUIRED BY THE CONSTITUTION IS TO PRACTICE, NO
LESS THAN IN RINALDI, A DISCRIMINATION WHICH THE EQUAL PROTECTION
CLAUSE PROSCRIBES. 

THE COURT ASSUMED IN RINALDI, ARGUENDO, "THAT A LEGISLATURE COULD
VALIDLY PROVIDE FOR REPLENISHING A COUNTY TREASURY FROM THE POCKETS OF
THOSE WHO HAVE DIRECTLY BENEFITED FROM COUNTY EXPENDITURES."  ID., AT
309.  WE NOTE HERE ALSO THAT THE STATE INTERESTS REPRESENTED BY
RECOUPMENT LAWS MAY PROVE IMPORTANT ONES.  RECOUPMENT PROCEEDINGS MAY
PROTECT THE STATE FROM FRAUDULENT CONCEALMENT OF ASSETS AND FALSE
ASSERTIONS OF INDIGENCY.  MANY STATES, MOREOVER, FACE EXPANDING
CRIMINAL DOCKETS, AND THIS COURT HAS REQUIRED APPOINTED COUNSEL FOR
INDIGENTS IN WIDENING CLASSES OF CASES /24/  AND STAGES OF
PROSECUTION.  /25/  SUCH TRENDS HAVE HEIGHTENED THE BURDEN ON PUBLIC
REVENUES, AND RECOUPMENT LAWS REFLECT LEGISLATIVE EFFORTS TO RECOVER
SOME OF THE ADDED COSTS.  FINALLY, FEDERAL DOMINANCE OF THE NATION'S
MAJOR REVENUE SOURCES HAS ENCOURAGED STATE AND LOCAL GOVERNMENTS TO
SEEK NEW METHODS OF CONSERVING PUBLIC FUNDS, NOT ONLY THROUGH THE
RECOUPMENT OF INDIGENTS' COUNSEL FEES BUT OF OTHER FORMS OF PUBLIC
ASSISTANCE AS WELL. 

WE THUS RECOGNIZE THAT STATE RECOUPMENT STATUTES MAY BETOKEN
LEGITIMATE STATE INTERESTS.  BUT THESE INTERESTS ARE NOT THWARTED BY
REQUIRING MORE EVEN TREATMENT OF INDIGENT CRIMINAL DEFENDANTS WITH
OTHER CLASSES OF DEBTORS TO WHOM THE STATUTE ITSELF REPEATEDLY MAKES
REFERENCE.  STATE RECOUPMENT LAWS, NOTWITHSTANDING THE STATE INTERESTS
THEY MAY SERVE, NEED NOT BLIGHT IN SUCH DISCRIMINATORY FASHION THE
HOPES OF INDIGENTS FOR SELF-SUFFICIENCY AND SELF-RESPECT.  THE STATUTE
BEFORE US EMBODIES ELEMENTS OF PUNITIVENESS AND DISCRIMINATION WHICH
VIOLATE THE RIGHTS OF CITIZENS TO EQUAL TREATMENT UNDER THE LAW. 

THE JUDGMENT OF THE COURT BELOW IS AFFIRMED. 

/1/  THE OPINION OF THE THREE-JUDGE COURT IS REPORTED IN 323
F.SUPP.  1230 (KAN. 1971). 

/2/  KAN. STAT. ANN. SECS. 22-4501 TO 22-4515 (SUPP. 1971). 

/3/  KAN. STAT. ANN. SEC. 22-4513 (SUPP. 1971).  THE STATUTE READS
AS FOLLOWS: 

"(A) WHENEVER ANY EXPENDITURE HAS BEEN MADE FROM THE AID TO INDIGENT
DEFENDANTS FUND TO PROVIDE COUNSEL AND OTHER DEFENSE SERVICES TO ANY
DEFENDANT, AS AUTHORIZED BY SECTION 10, . . . SUCH DEFENDANT SHALL BE
LIABLE TO THE STATE OF KANSAS FOR A SUM EQUAL TO SUCH EXPENDITURE, AND
SUCH SUM MAY BE RECOVERED FROM THE DEFENDANT BY THE STATE OF KANSAS FOR
THE BENEFIT OF THE FUND TO AID INDIGENT DEFENDANTS.  WITHIN THIRTY (30)
DAYS AFTER SUCH EXPENDITURE, THE JUDICIAL ADMINISTRATOR SHALL SEND A
NOTICE BY CERTIFIED MAIL TO THE PERSON ON WHOSE BEHALF SUCH EXPENDITURE
WAS MADE, WHICH NOTICE SHALL STATE THE AMOUNT OF THE EXPENDITURE AND
SHALL DEMAND THAT THE DEFENDANT PAY SAID SUM TO THE STATE OF KANSAS FOR
THE BENEFIT OF THE FUND TO AID INDIGENT DEFENDANTS WITHIN SIXTY (60)
DAYS AFTER RECEIPT OF SUCH NOTICE.  THE NOTICE SHALL STATE THAT SUCH
SUM BECAME DUE ON THE DATE OF THE EXPENDITURE AND THAT THE SUM DEMANDED
WILL BEAR INTEREST AT SIX PERCENT (6%) PER ANNUM FROM THE DUE DATE
UNTIL PAID.  FAILURE TO RECEIVE ANY SUCH NOTICE SHALL NOT RELIEVE THE
PERSON TO WHOM IT IS ADDRESSED FROM THE PAYMENT OF THE SUM CLAIMED AND
ANY INTEREST DUE THEREON. 

"SHOULD THE SUM DEMANDED REMAIN UNPAID AT THE EXPIRATION OF SIXTY
(60) DAYS AFTER MAILING THE NOTICE, THE JUDICIAL ADMINISTRATOR SHALL
CERTIFY AN ABSTRACT OF THE TOTAL AMOUNT OF THE UNPAID DEMAND AND
INTEREST THEREON TO THE CLERK OF THE DISTRICT COURT OF THE COUNTY IN
WHICH COUNSEL WAS APPOINTED OR THE EXPENDITURE AUTHORIZED BY THE COURT,
AND SUCH CLERK SHALL ENTER THE TOTAL AMOUNT THEREOF ON HIS JUDGMENT
DOCKET AND SAID TOTAL AMOUNT, TOGETHER WITH THE INTEREST THEREON AT THE
RATE OF SIX PERCENT (6%) PER ANNUM, FROM THE DATE OF EXPENDITURE
THEREOF UNTIL PAID, SHALL BECOME A JUDGMENT IN THE SAME MANNER AND TO
THE SAME EXTENT AS ANY OTHER JUDGMENT UNDER THE CODE OF CIVIL PROCEDURE
AND SHALL BECOME A LIEN ON REAL ESTATE FROM AND AFTER THE TIME OF
FILING THEREOF.  A TRANSCRIPT OF SAID JUDGMENT MAY BE FILED IN ANOTHER
COUNTY AND BECOME A LIEN UPON REAL ESTATE, LOCATED IN SUCH COUNTY, IN
THE SAME MANNER AS IS PROVIDED IN CASE OF OTHER JUDGMENTS.  EXECUTION,
GARNISHMENT, OR OTHER PROCEEDINGS IN AID OF EXECUTION MAY ISSUE WITHIN
THE COUNTY, OR TO ANY OTHER COUNTY, ON SAID JUDGMENT IN LIKE MANNER AS
ON JUDGMENTS UNDER THE CODE OF CIVIL PROCEDURE.  NONE OF THE EXEMPTIONS
PROVIDED FOR IN THE CODE OF CIVIL PROCEDURE SHALL APPLY TO ANY SUCH
JUDGMENT, BUT NO SUCH JUDGMENT SHALL BE LEVIED AGAINST A HOMESTEAD.  IF
EXECUTION SHALL NOT BE SUED OUT WITHIN FIVE (5) YEARS FROM THE DATE OF
THE ENTRY OF ANY SUCH JUDGMENT, OR IF FIVE (5) YEARS SHALL HAVE
INTERVENED BETWEEN THE DATE OF THE LAST EXECUTION ISSUED ON SUCH
JUDGMENT AND THE TIME OF SUING OUT ANOTHER WRIT OF EXECUTION THEREON,
SUCH JUDGMENT SHALL BECOME DORMANT AND SHALL CEASE TO OPERATE AS A LIEN
ON REAL ESTATE OF THE JUDGMENT DEBTOR.  SUCH DORMANT JUDGMENT MAY BE
REVIVED IN LIKE MANNER AS DORMANT JUDGMENTS UNDER THE CODE OF CIVIL
PROCEDURE. 

"(B) WHENEVER ANY EXPENDITURE HAS BEEN MADE FROM THE AID TO INDIGENT
DEFENDANTS FUND TO PROVIDE COUNSEL AND OTHER DEFENSE SERVICES TO ANY
DEFENDANT, AS AUTHORIZED BY SECTION 10, . . . A SUM EQUAL TO SUCH
EXPENDITURE MAY BE RECOVERED BY THE STATE OF KANSAS FOR THE BENEFIT OF
THE AID TO INDIGENT DEFENDANTS FUND FROM ANY PERSONS TO WHOM THE
INDIGENT DEFENDANT SHALL HAVE TRANSFERRED ANY OF HIS PROPERTY WITHOUT
ADEQUATE MONETARY CONSIDERATION AFTER THE COMMISSION OF THE ALLEGED
CRIME, TO THE EXTENT OF THE VALUE OF SUCH TRANSFER, AND SUCH PERSONS
ARE HEREBY MADE LIABLE TO REIMBURSE THE STATE OF KANSAS FOR SUCH
EXPENDITURES WITH INTEREST AT SIX PERCENT (6%) PER ANNUM.  ANY ACTION
TO RECOVER JUDGMENT FOR SUCH EXPENDITURES SHALL BE PROSECUTED BY THE
ATTORNEY GENERAL, WHO MAY REQUIRE THE ASSISTANCE OF THE COUNTY ATTORNEY
OF THE COUNTY IN WHICH THE ACTION IS TO BE FILED, AND SUCH ACTION SHALL
BE GOVERNED BY THE PROVISIONS OF THE CODE OF CIVIL PROCEDURE RELATING
TO ACTIONS FOR THE RECOVERY OF MONEY.  NO ACTION SHALL BE BROUGHT
AGAINST ANY PERSON UNDER THE PROVISIONS OF THIS SECTION TO RECOVER FOR
SUMS EXPENDED ON BEHALF OF AN INDIGENT DEFENDANT, UNLESS SUCH ACTION
SHALL HAVE BEEN FILED WITHIN TWO (2) YEARS AFTER THE DATE OF THE
EXPENDITURE FROM THE FUND TO AID INDIGENT DEFENDANTS." 

/4/  FAILURE TO RECEIVE NOTICE, HOWEVER, DOES NOT RELIEVE THE PERSON
TO WHOM IT IS ADDRESSED OF THE OBLIGATION. 

/5/  A DORMANT JUDGMENT MAY BE REVIVED WITHIN TWO YEARS OF THE DATE
ON WHICH THE JUDGMENT BECAME DORMANT.  KAN. STAT. ANN. SEC. 60-2404
(1964). 

/6/  THERE IS ALSO A FEDERAL REIMBURSEMENT PROVISION, 18 U.S.C.
3006AF): 

"RECEIPT OF OTHER PAYMENTS.-- WHENEVER THE UNITED STATES MAGISTRATE
OR THE COURT FINDS THAT FUNDS ARE AVAILABLE FOR PAYMENT FROM OR ON
BEHALF OF A PERSON FURNISHED REPRESENTATION, IT MAY AUTHORIZE OR DIRECT
THAT SUCH FUNDS BE PAID TO THE APPOINTED ATTORNEY, TO THE BAR
ASSOCIATION OR LEGAL AID AGENCY OR COMMUNITY DEFENDER ORGANIZATION
WHICH PROVIDED THE APPOINTED ATTORNEY, TO ANY PERSON OR ORGANIZATION
AUTHORIZED PURSUANT TO SUBSECTION (3) TO RENDER INVESTIGATIVE, EXPERT,
OR OTHER SERVICES, OR TO THE COURT FOR DEPOSIT IN THE TREASURY AS A
REIMBURSEMENT TO THE APPROPRIATION, CURRENT AT THE TIME OF PAYMENT, TO
CARRY OUT THE PROVISIONS OF THIS SECTION.  EXCEPT AS SO AUTHORIZED OR
DIRECTED, NO SUCH PERSON OR ORGANIZATION MAY REQUEST OR ACCEPT ANY
PAYMENT OR PROMISE OF PAYMENT FOR REPRESENTING A DEFENDANT." 

/7/  THE BOARD OF COUNTY COMMISSIONERS HAS DISCRETION TO COMPROMISE
OR RELEASE THE LIEN, HOWEVER.  FLA. STAT. ANN. SEC. 27.56 (SUPP. 1972
1973). 

/8/  STATE RECOUPMENT STATUTES, INCLUDING THOSE QUOTED ABOVE, ARE AS
FOLLOWS: 

ALA. CODE, TIT. 15, SEC. 318(12) (SUPP. 1969); ALASKA STAT. SEC.
12.55.020 (1962); FLA. STAT. ANN. SEC. 27.56 (SUPP. 1972-1973); IDAHO
CODE SEC. 19-858 (SUPP. 1971); IND. ANN. STAT. SEC. 9-3501 (SUPP.
1970); IOWA CODE ANN. SEC. 775.5 (SUPP. 1972); MD. ANN. CODE, ART. 26,
SEC. 12C (SUPP. 1971); N.M. STAT. ANN. SEC. 41-22-7 (SUPP. 1971); N.D.
CENT. CODE SEC. 29-07-01.1 (SUPP. 1971); OHIO REV. CODE ANN. SEC.
2941.51 (SUPP. 1972); S.C. CODE ANN. SEC. 17-283 (SUPP. 1971); TEX.
CODE CRIM. PROC., ART. 1018 (1966); VA. CODE ANN. SEC. 14.1-184 (SUPP.
1971); W. VA. CODE ANN. SEC. 62-3-1 (SUPP. 1971); WIS. STAT. ANN. SEC.
256.66 (1971). 

/9/  FOR FISCAL 1971 $400,000 WAS APPROPRIATED TO FUND THE PROGRAM. 

/10/  SEE N. 2, SUPRA. 

/11/  TR. OF ORAL ARG. 9.  THE STATE CONCEDES THAT EXEMPTIONS FOR
OTHER CIVIL JUDGMENT DEBTORS ARE BROADER THAN FOR INDIGENT DEFENDANTS,
ID., AT 10, A MATTER WE WILL ADDRESS FORTHWITH. 

/12/  BRIEF FOR APPELLANTS 7. 

/13/  SEE KAN. STAT. ANN. SECS. 60-701 TO 60-724, 60-2401 TO 60-2419
(1964 AND SUPP. 1971). 

/14/  THE EXEMPTIONS IN THE CIVIL CODE ARE SET FORTH IN KAN. STAT.
ANN. SECS. 60-2301 TO 60-2311 (1964 AND SUPP. 1971). 

/15/  KAN. STAT. ANN. SECS. 60-2304 AND 60-2308 (1964 AND SUPP.
1971). 

/16/  BUREAU OF LABOR STATISTICS, HANDBOOK OF LABOR STATISTICS 281
(1968).  LOW-WAGE EARNERS ARE DEFINED AS FAMILIES WITH AFTER-TAX INCOME
OF LESS THAN $5,000. 

/17/  THE COURT IN SNIADACH HELD THAT WISCONSIN'S PREJUDGMENT WAGE
GARNISHMENT PROCEDURE, AS A TAKING OF PROPERTY WITHOUT NOTICE AND PRIOR
HEARING, VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

/18/  KAN. STAT. ANN. SECS. 60-2310(B) AND 60-2311 (SUPP. 1971). 
GARNISHMENT AT A TIME OF DISABLING PERSONAL SICKNESS AND FROM
PROFESSIONAL COLLECTING AGENCIES.  SEE KAN. STAT. ANN. SECS. 60-2310(C)
AND (D) (SUPP. 1971).  SEE ALSO BENNETT, THE 1970 KANSAS LEGISLATURE IN
REVIEW, 39 J.B.A.K. 107, 178 (1970), WHICH POINTS OUT THAT THE STATE'S
RESTRICTIONS ON GARNISHMENTS HAVE BEEN MADE TO CONFORM TO TIT. III OF
THE FEDERAL CONSUMER CREDIT PROTECTION ACT, 82 STAT. 163.  KANSAS,
HOWEVER, PROVIDED SIGNIFICANT WAGE EXEMPTIONS FROM GARNISHMENT LONG
BEFORE THE FEDERAL ACT WAS PASSED. 

/19/  KAN. STAT. ANN. SEC. 39-719B (1964); SEC. 59-2006 (SUPP.
1971).  SECTION 39-719B DEALS MAINLY WITH THE RECOVERY OF ASSISTANCE
FROM AN INELIGIBLE RECIPIENT.  YET, EVEN WHEN THE WELFARE RECIPIENT IS
DEEMED TO HAVE DEFRAUDED THE STATE, HE STILL ESCAPES THE IMMEDIATE
INTEREST ACCUMULATIONS AND DENIAL OF EXEMPTIONS IMPOSED ON INDIGENT
DEFENDANTS: 

"SEC. 39-719B.  DUTY OF RECIPIENT TO REPORT CHANGES; ACTION BY
BOARD; RECOVERY OF ASSISTANCE OBTAINED BY INELIGIBLE RECIPIENT.  IF AT
ANY TIME DURING THE CONTINUANCE OF ASSISTANCE TO ANY PERSON, THE
RECIPIENT THEREOF BECOMES POSSESSED OF ANY PROPERTY OR INCOME IN EXCESS
OF THE AMOUNT ASCERTAINED AT THE TIME OF GRANTING ASSISTANCE, IT SHALL
BE THE DUTY OF THE RECIPIENT TO NOTIFY THE COUNTY BOARD OF SOCIAL
WELFARE IMMEDIATELY OF THE RECEIPT OR POSSESSION OF SUCH PROPERTY OR
INCOME AND SAID COUNTY BOARD MAY, AFTER INVESTIGATION, CANCEL THE
ASSISTANCE IN ACCORDANCE WITH THE CIRCUMSTANCES. 

"ANY ASSISTANCE PAID SHALL BE RECOVERABLE BY THE COUNTY BOARD AS A
DEBT DUE TO THE STATE AND THE COUNTY IN PROPORTION TO THE AMOUNT OF THE
ASSISTANCE PAID BY EACH, RESPECTIVELY:  IF DURING THE LIFE OR ON THE
DEATH OF ANY PERSON RECEIVING ASSISTANCE, IT IS FOUND THAT THE
RECIPIENT WAS POSSESSED OF INCOME OR PROPERTY IN EXCESS OF THE AMOUNT
REPORTED OR ASCERTAINED AT THE TIME OF GRANTING ASSISTANCE, AND IF IT
BE SHOWN THAT SUCH ASSISTANCE WAS OBTAINED BY AN INELIGIBLE RECIPIENT,
THE TOTAL AMOUNT OF THE ASSISTANCE MAY BE RECOVERED BY THE STATE
DEPARTMENT OF SOCIAL WELFARE AS A FOURTH CLASS CLAIM FROM THE ESTATE OF
THE RECIPIENT OR IN AN ACTION BROUGHT AGAINST THE RECIPIENT WHILE
LIVING." 

/20/  THERE APPEARS TO BE A FURTHER DISCRIMINATION AGAINST THE
INDIGENT DEFENDANT AS CONTRASTED WITH THE DELINQUENT WELFARE
RECIPIENT.  THE RECOUPMENT STATUTE APPLICABLE TO INDIGENT DEFENDANTS
PROVIDES FOR THE ACCUMULATION OF 6% ANNUAL INTEREST FROM THE DATE
EXPENDITURES ARE MADE FOR COUNSEL OR OTHER LEGAL DEFENSE COSTS.  KAN.
STAT. ANN. SEC. 22-4513 (SUPP. 1971).  THE INTEREST BUILD-UP FOR THE
INDIGENT DEFENDANT WOULD NOT BE INSUBSTANTIAL.  IN THE FIVE YEARS
BEFORE THE JUDGMENT BECAME DORMANT, INTEREST ACCUMULATIONS COULD LIFT
APPELLEE'S $500 DEBT TO ALMOST $670.  IF THE DORMANT JUDGMENT IS
REVIVED WITHIN THE STATUTORILY PRESCRIBED TWO YEARS, THE PRINCIPAL AND
INTEREST MIGHT TOTAL OVER $750.  (THE INTEREST PRESUMABLY WOULD RUN
WHILE THE JUDGMENT WAS DORMANT SINCE "(A) DORMANT JUDGMENT MAY BE
REVIVED AND HAVE THE SAME FORCE AND EFFECT AS IF IT HAD NOT BECOME
DORMANT.  . . . " KAN. STAT. ANN. SEC. 60-2404 (SUPP. 1971)). 

KANSAS ALSO HAS A STATUTE PROVIDING THAT ALL JUDGMENTS SHALL BEAR 8%
INTEREST FROM THE DAY ON WHICH THEY ARE RENDERED.  KAN. STAT. ANN. SEC.
16-204 (SUPP. 1971) (RECENTLY AMENDED FROM 6%).  PRESUMABLY THIS
STATUTE WOULD COVER THE "DEBTS" OF WELFARE RECIPIENTS ONCE THEY ARE
REDUCED TO JUDGMENT.  THE DEBT OF THE INDIGENT DEFENDANT, HOWEVER, RUNS
FROM THE DATE THE ASSISTANCE IS GRANTED, WHILE ANY INTEREST ON THE DEBT
OF A WELFARE RECIPIENT WOULD PRESUMABLY RUN FROM THE DATE OF JUDGMENT. 
/21/  FOR EXAMPLE, KANSAS DOES NOT EXTEND ITS EXEMPTIONS WITH
RESPECT TO WAGE GARNISHMENT TO ANY DEBT DUE FOR ANY STATE OR FEDERAL
TAX, KAN. STAT. ANN. SEC. 60-2310(E)(3) (SUPP. 1971).  THIS TYPE OF
PUBLIC DEBT, HOWEVER, DIFFERS FROM THE INSTANT CASE IN REPRESENTING A
WRONGFUL WITHHOLDING FROM THE STATE OF A TAX ON ASSETS IN THE ACTUAL
POSSESSION OF THE TAXPAYER AND NOT, AS HERE, A DEBT CONTRACTED UNDER
CIRCUMSTANCES OF INDIGENCY. 

/22/  THE STATUTES OF VARIOUS OTHER STATES, E.G., ALASKA, SOUTH
CAROLINA, AND WEST VIRGINIA, PROVIDE, AS DOES KANSAS, FOR RECOVERY
AGAINST INDIGENT DEFENDANTS IN THE SAME MANNER AS ON OTHER JUDGMENTS. 
UNLIKE KANSAS, HOWEVER, THESE STATES DO NOT EXPRESSLY SUBJECT INDIGENTS
TO CONDITIONS TO WHICH OTHER CIVIL JUDGMENT DEBTORS ARE NOT LIABLE. 
SEE N. 8, SUPRA, FOR CITATIONS. 

/23/  SEE N. 8, SUPRA, FOR CITATIONS. 

/24/  GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963); DOUGLAS V.
CALIFORNIA, 372 U.S. 353 (1963); ARGERSINGER V. HAMLIN, ANTE, P. 25. 

/25/  COLEMAN V. ALABAMA, 399 U.S. 1 (1970); MEMPA V. RHAY, 389 U.S.
128 (1967); UNITED STATES V. WADE, 388 U.S. 218 (1967); MIRANDA V.
ARIZONA, 384 U.S. 436 (1966). 

EDWARD G. COLLISTER, JR., ASSISTANT ATTORNEY GENERAL OF KANSAS,
ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WERE VERN
MILLER, ATTORNEY GENERAL, AND MATTHEW J. DOWD, ASSISTANT ATTORNEY
GENERAL. 

JOHN E. WILKINSON ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 

MARSHALL J. HARTMAN FILED A BRIEF FOR THE NATIONAL LEGAL AID AND
DEFENDER ASSOCIATION AS AMICUS CURIAE. 
..END :












ADAMS V. WILLIAMS, 407 U.S. 143 


       ADAMS, WARDEN V. WILLIAMS

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 70-283.  ARGUED APRIL 10, 1972-- DECIDED JUNE 12, 1972 


ACTING ON A TIP SUPPLIED MOMENTS EARLIER BY AN INFORMANT KNOWN TO
HIM, A POLICE OFFICER ASKED RESPONDENT TO OPEN HIS CAR DOOR. 
RESPONDENT LOWERED THE WINDOW, AND THE OFFICER REACHED INTO THE CAR AND
FOUND A LOADED HANDGUN (WHICH HAD NOT BEEN VISIBLE FROM THE OUTSIDE) IN
RESPONDENT'S WAISTBAND, PRECISELY WHERE THE INFORMANT SAID IT WOULD BE.
RESPONDENT WAS ARRESTED FOR UNLAWFUL POSSESSION OF THE HANDGUN.  A
SEARCH INCIDENT TO THE ARREST DISCLOSED HEROIN ON RESPONDENT'S PERSON
(AS THE INFORMANT HAD REPORTED), AS WELL AS OTHER CONTRABAND IN THE
CAR, RESPONDENT'S PETITION FOR FEDERAL HABEAS CORPUS RELIEF WAS DENIED
BY THE DISTRICT COURT.  THE COURT OF APPEALS REVERSED, HOLDING THAT THE
EVIDENCE THAT HAD BEEN USED IN THE TRIAL RESULTING IN RESPONDENT'S
CONVICTION HAD BEEN OBTAINED BY AN UNLAWFUL SEARCH.  HELD:  AS TERRY V.
OHIO, 392 U.S. 1, RECOGNIZES, A POLICEMAN MAKING A REASONABLE
INVESTIGATORY STOP MAY CONDUCT A LIMITED PROTECTIVE SEARCH FOR
CONCEALED WEAPONS WHEN HE HAS REASON TO BELIEVE THAT THE SUSPECT IS
ARMED AND DANGEROUS.  HERE THE INFORMATION FROM THE INFORMANT HAD
ENOUGH INDICIA OF RELIABILITY TO JUSTIFY THE OFFICER'S FORCIBLE STOP OF
PETITIONER AND THE PROTECTIVE SEIZURE OF THE WEAPON, WHICH AFFORDED
REASONABLE GROUND FOR THE SEARCH INCIDENT TO THE ARREST THAT ENSUED. 
PP. 145-149. 

441 F.2D 394, REVERSED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED, POST, P.
149.  BRENNAN, J., FILED A DISSENTING OPINION, POST, P. 151.  MARSHALL,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P.
153. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENT ROBERT WILLIAMS WAS CONVICTED IN A CONNECTICUT STATE
COURT OF ILLEGAL POSSESSION OF A HANDGUN FOUND DURING A "STOP AND
FRISK," AS WELL AS OF POSSESSION OF HEROIN THAT WAS FOUND DURING A FULL
SEARCH INCIDENT TO HIS WEAPONS ARREST.  AFTER RESPONDENT'S CONVICTION
WAS AFFIRMED BY THE SUPREME COURT OF CONNECTICUT, 157 CONN. 114, 249
A.2D 245 (1968), THIS COURT DENIED CERTIORARI.  395 U.S. 927 (1969). 
WILLIAMS' PETITION FOR FEDERAL HABEAS CORPUS RELIEF WAS DENIED BY THE
DISTRICT COURT AND BY A DIVIDED PANEL OF THE SECOND CIRCUIT, 436 F.2D
30 (1970), BUT ON REHEARING EN BANC THE COURT OF APPEALS GRANTED
RELIEF.  441 F.2D 394 (1971).  THAT COURT HELD THAT EVIDENCE INTRODUCED
AT WILLIAMS' TRIAL HAD BEEN OBTAINED BY AN UNLAWFUL SEARCH OF HIS
PERSON AND CAR, AND THUS THE STATE COURT JUDGMENTS OF CONVICTION SHOULD
BE SET ASIDE.  SINCE WE CONCLUDE THAT THE POLICEMAN'S ACTIONS HERE
CONFORMED TO THE STANDARDS THIS COURT LAID DOWN IN TERRY V. OHIO, 392
U.S. 1 (1968), WE REVERSE. 

POLICE SGT. JOHN CONNOLLY WAS ALONE EARLY IN THE MORNING ON CAR
PATROL DUTY IN A HIGH-CRIME AREA OF BRIDGEPORT, CONNECTICUT.  AT
APPROXIMATELY 2:15 A.M. A PERSON KNOWN TO SGT. CONNOLLY APPROACHED HIS
CRUISER AND INFORMED THAT AN INDIVIDUAL SEATED IN A NEARBY VEHICLE WAS
CARRYING NARCOTICS AND HAD A GUN AT HIS WAIST. 

AFTER CALLING FOR ASSISTANCE ON HIS CAR RADIO, SGT. CONNOLLY
APPROACHED THE VEHICLE TO INVESTIGATE THE INFORMANT'S REPORT.  CONNOLLY
TAPPED ON THE CAR WINDOW AND ASKED THE OCCUPANT, ROBERT WILLIAMS, TO
OPEN THE DOOR.  WHEN WILLIAMS ROLLED DOWN THE WINDOW INSTEAD, THE
SERGEANT REACHED INTO THE CAR AND REMOVED A FULLY LOADED REVOLVER FROM
WILLIAMS' WAISTBAND.  THE GUN HAD NOT BEEN VISIBLE TO CONNOLLY FROM
OUTSIDE THE CAR, BUT IT WAS IN PRECISELY THE PLACE INDICATED BY THE
INFORMANT.  WILLIAMS WAS THEN ARRESTED BY CONNOLLY FOR UNLAWFUL
POSSESSION OF THE PISTOL.  A SEARCH INCIDENT TO THAT ARREST WAS
CONDUCTED AFTER OTHER OFFICERS ARRIVED.  THEY FOUND SUBSTANTIAL
QUANTITIES OF HEROIN ON WILLIAMS' PERSON AND IN THE CAR, AND THEY FOUND
A MACHETE AND A SECOND REVOLVER HIDDEN IN THE AUTOMOBILE. 

RESPONDENT CONTENDS THAT THE INITIAL SEIZURE OF HIS PISTOL, UPON
WHICH RESTED THE LATER SEARCH AND SEIZURE OF OTHER WEAPONS AND
NARCOTICS, WAS NOT JUSTIFIED BY THE INFORMANT'S TIP TO SGT. CONNOLLY. 
HE CLAIMS THAT ABSENT A MORE RELIABLE INFORMANT, OR SOME CORROBORATION
OF THE TIP, THE POLICEMAN'S ACTIONS WERE UNREASONABLE UNDER THE
STANDARDS SET FORTH IN TERRY V. OHIO, SUPRA. 

IN TERRY THIS COURT RECOGNIZED THAT "A POLICE OFFICER MAY IN
APPROPRIATE CIRCUMSTANCES AND IN AN APPROPRIATE MANNER APPROACH A
PERSON FOR PURPOSES OF INVESTIGATING POSSIBLY CRIMINAL BEHAVIOR EVEN
THOUGH THERE IS NO PROBABLE CAUSE TO MAKE AN ARREST."  ID., AT 22.  THE
FOURTH AMENDMENT DOES NOT REQUIRE A POLICEMAN WHO LACKS THE PRECISE
LEVEL OF INFORMATION NECESSARY FOR PROBABLE CAUSE TO ARREST TO SIMPLY
SHRUG HIS SHOULDERS AND ALLOW A CRIME TO OCCUR OR A CRIMINAL TO
ESCAPE.  ON THE CONTRARY, TERRY RECOGNIZES THAT IT MAY BE THE ESSENCE
OF GOOD POLICE WORK TO ADOPT AN INTERMEDIATE RESPONSE.  SEE ID., AT
23.  A BRIEF STOP OF A SUSPICIOUS INDIVIDUAL, IN ORDER TO DETERMINE HIS
IDENTITY OR TO MAINTAIN THE STATUS QUO MOMENTARILY WHILE OBTAINING MORE
INFORMATION, MAY BE MOST REASONABLE IN LIGHT OF THE FACTS KNOWN TO THE
OFFICER AT THE TIME.  ID., AT 21-22; SEE GAINES V. CRAVEN, 448 F.2D
1236 (CA9 1971); UNITED STATES V. UNVERZAGT, 424 F.2D 396 (CA8 1970). 

THE COURT RECOGNIZED IN TERRY THAT THE POLICEMAN MAKING A REASONABLE
INVESTIGATORY STOP SHOULD NOT BE DENIED THE OPPORTUNITY TO PROTECT
HIMSELF FROM ATTACK BY A HOSTILE SUSPECT.  "WHEN AN OFFICER IS
JUSTIFIED IN BELIEVING THAT THE INDIVIDUAL WHOSE SUSPICIOUS BEHAVIOR HE
IS INVESTIGATING AT CLOSE RANGE IS ARMED AND PRESENTLY DANGEROUS TO THE
OFFICER OR TO OTHERS," HE MAY CONDUCT A LIMITED PROTECTIVE SEARCH FOR
CONCEALED WEAPONS.  392 U.S.,AT 24.  THE PURPOSE OF THIS LIMITED SEARCH
IS NOT TO DISCOVER EVIDENCE OF CRIME, BUT TO ALLOW THE OFFICER TO
PURSUE HIS INVESTIGATION WITHOUT FEAR OF VIOLENCE, AND THUS THE FRISK
FOR WEAPONS MIGHT BE EQUALLY NECESSARY AND REASONABLE, WHETHER OR NOT
CARRYING A CONCEALED WEAPON VIOLATED ANY APPLICABLE STATE LAW.  SO LONG
AS THE OFFICER IS ENTITLED TO MAKE A FORCIBLE STOP, /1/  AND HAS REASON
TO BELIEVE THAT THE SUSPECT IS ARMED AND DANGEROUS, HE MAY CONDUCT A
WEAPONS SEARCH LIMITED IN SCOPE TO THIS PROTECTIVE PURPOSE.  ID., AT
30. 

APPLYING THESE PRINCIPLES TO THE PRESENT CASE, WE BELIEVE THAT SGT.
CONNOLLY ACTED JUSTIFIABLY IN RESPONDING TO HIS INFORMANT'S TIP.  THE
INFORMANT WAS KNOWN TO HIM PERSONALLY AND HAD PROVIDED HIM WITH
INFORMATION IN THE PAST.  THIS IS A STRONGER CASE THAN OBTAINS IN THE
CASE OF AN ANONYMOUS TELEPHONE TIP.  THE INFORMANT HERE CAME FORWARD
PERSONALLY TO GIVE INFORMATION THAT WAS IMMEDIATELY VERIFIABLE AT THE
SCENE.  INDEED, UNDER CONNECTICUT LAW, THE INFORMANT MIGHT HAVE BEEN
SUBJECT TO IMMEDIATE ARREST FOR MAKING A FALSE COMPLAINT HAD SGT.
CONNOLLY'S INVESTIGATION PROVED THE TIP INCORRECT.  /2/  THUS, WHILE
THE COURT'S DECISIONS INDICATE THAT THIS INFORMANT'S UNVERIFIED TIP MAY
HAVE BEEN INSUFFICIENT FOR A NARCOTICS ARREST OR SEARCH WARRANT, SEE,
E.G., SPINELLI V. UNITED STATES, 393 U.S. 410 (1969); AGUILAR V. TEXAS,
378 U.S. 108 (1964), THE INFORMATION CARRIED ENOUGH INDICIA OF
RELIABILITY TO JUSTIFY THE OFFICER'S FORCIBLE STOP OF WILLIAMS. 

IN REACHING THIS CONCLUSION, WE REJECT RESPONDENT'S ARGUMENT THAT
REASONABLE CAUSE FOR A STOP AND FRISK CAN ONLY BE BASED ON THE
OFFICER'S PERSONAL OBSERVATION, RATHER THAN ON INFORMATION SUPPLIED BY
ANOTHER PERSON.  INFORMANTS' TIPS, LIKE ALL OTHER CLUES AND EVIDENCE
COMING TO A POLICEMAN ON THE SCENE, MAY VARY GREATLY IN THEIR VALUE AND
RELIABILITY.  ONE SIMPLE RULE WILL NOT COVER EVERY SITUATION.  SOME
TIPS, COMPLETELY LACKING IN INDICIA OF RELIABILITY, WOULD EITHER
WARRANT NO POLICE RESPONSE OR REQUIRE FURTHER INVESTIGATION BEFORE A
FORCIBLE STOP OF A SUSPECT WOULD BE AUTHORIZED.  BUT IN SOME SITUATIONS
- FOR EXAMPLE, WHEN THE VICTIM OF A STREET CRIME SEEKS IMMEDIATE POLICE
AID AND GIVES A DESCRIPTION OF HIS ASSAILANT, OR WHEN A CREDIBLE
INFORMANT WARNS OF A SPECIFIC IMPENDING CRIME-- THE SUBTLETIES OF THE
HEARSAY RULE SHOULD NOT THWART AN APPROPRIATE POLICE RESPONSE. 

WHILE PROPERLY INVESTIGATING THE ACTIVITY OF A PERSON WHO WAS
REPORTED TO BE CARRYING NARCOTICS AND A CONCEALED WEAPON AND WHO WAS
SITTING ALONE IN A CAR IN A HIGH-CRIME AREA AT 2:15 IN THE MORNING,
SGT. CONNOLLY HAD AMPLE REASON TO FEAR FOR HIS SAFETY.  /3/  WHEN
WILLIAMS ROLLED DOWN HIS WINDOW, RATHER THAN COMPLYING WITH THE
POLICEMAN'S REQUEST TO STEP OUT OF THE CAR SO THAT HIS MOVEMENTS COULD
MORE EASILY BE SEEN, THE REVOLVER ALLEGEDLY AT WILLIAMS' WAIST BECAME
AN EVEN GREATER THREAT.  UNDER THESE CIRCUMSTANCES THE POLICEMAN'S
ACTION IN REACHING TO THE SPOT WHERE THE GUN WAS THOUGHT TO BE HIDDEN
CONSTITUTED A LIMITED INTRUSION DESIGNED TO INSURE HIS SAFETY, AND WE
CONCLUDE THAT IT WAS REASONABLE.  THE LOADED GUN SEIZED AS A RESULT OF
THIS INTRUSION WAS THEREFORE ADMISSIBLE AT WILLIAMS' TRIAL.  TERRY V.
OHIO, 392 U.S.,AT 30. 

ONCE SGT. CONNOLLY HAD FOUND THE GUN PRECISELY WHERE THE INFORMANT
HAD PREDICTED, PROBABLE CAUSE EXISTED TO ARREST WILLIAMS FOR UNLAWFUL
POSSESSION OF THE WEAPON.  PROBABLE CAUSE TO ARREST DEPENDS "UPON
WHETHER, AT THE MOMENT THE ARREST WAS MADE . . . THE FACTS AND
CIRCUMSTANCES WITHIN (THE ARRESTING OFFICERS') KNOWLEDGE AND OF WHICH
THEY HAD RESONABLY TRUSTWORTHY INFORMATION WERE SUFFICIENT TO WARRANT A
PRUDENT MAN IN BELIEVING THAT THE (SUSPECT) HAD COMMITTED OR WAS
COMMITTING AN OFFENSE."  BECK V . OHIO, 379 U.S. 89, 91 (1964).  IN THE
PRESENT CASE THE POLICEMAN FOUND WILLIAMS IN POSSESSION OF A GUN IN
PRECISELY THE PLACE PREDICTED BY THE INFORMANT.  THIS TENDED TO
CORROBORATE THE RELIABILITY OF THE INFORMANT'S FURTHER REPORT OF
NARCOTICS AND, TOGETHER WITH THE SURROUNDING CIRCUMSTANCES, CERTAINLY
SUGGESTED NO LAWFUL EXPLANATION FOR POSSESSION OF THE GUN.  PROBABLE
CAUSE DOES NOT REQUIRE THE SAME TYPE OF SPECIFIC EVIDENCE OF EACH
ELEMENT OF THE OFFENSE AS WOULD BE NEEDED TO SUPPORT A CONVICTION.  SEE
DRAPER V. UNITED STATES, 358 U.S. 307, 311-312 (1959).  RATHER, THE
COURT WILL EVALUATE GENERALLY THE CIRCUMSTANCES AT THE TIME OF THE
ARREST TO DECIDE IF THE OFFICER HAD PROBABLE CAUSE FOR HIS ACTION: 

 "IN DEALING WITH PROBABLE CAUSE, HOWEVER, AS THE VERY NAME

  IMPLIES, WE DEAL WITH PROBABILITIES.  THESE ARE NOT TECHNICAL;

  THEY ARE THE FACTUAL AND PRACTICAL CONSIDERATIONS OF EVERYDAY

  LIFE ON WHICH REASONABLE AND PRUDENT MEN, NOT LEGAL TECHNICIANS,

  ACT."  BRINEGAR V. UNITED STATES, 338 U.S. 160, 175 (1949). 

SEE ALSO ID., AT 177.  UNDER THE CIRCUMSTANCES SURROUNDING WILLIAMS'
POSSESSION OF THE GUN SEIZED BY SGT. CONNOLLY, THE ARREST ON THE
WEAPONS CHARGE WAS SUPPORTED BY PROBABLE CAUSE, AND THE SEARCH OF HIS
PERSON AND OF THE CAR INCIDENT TO THAT ARREST WAS LAWFUL.  SEE BRINEGAR
V. UNITED STATES, SUPRA; CARROLL V. UNITED STATES, 267 U.S. 132
(1925).  THE FRUITS OF THE SEARCH WERE THEREFORE PROPERLY ADMITTED AT
WILLIAMS'  TRIAL, AND THE COURT OF APPEALS ERRED IN REACHING A CONTRARY
CONCLUSION. 

              REVERSED. 

/1/  PETITIONER DOES NOT CONTEND THAT WILLIAMS ACTED VOLUNTARILY IN
ROLLING DOWN THE WINDOW OF HIS CAR. 

/2/  SECTION 53-168 OF THE CONNECTICUT GENERAL STATUTES, IN FORCE AT
THE TIME OF THESE EVENTS, PROVIDED THAT A "PERSON WHO KNOWINGLY MAKES
TO ANY POLICE OFFICER . . . A FALSE REPORT OR A FALSE COMPLAINT
ALLEGING THAT A CRIME OR CRIMES HAVE BEEN COMMITTED" IS GUILTY OF A
MISDEMEANOR. 

/3/  FIGURES REPORTED BY THE FEDERAL BUREAU OF INVESTIGATION
INDICATE THAT 125 POLICEMEN WERE MURDERED IN 1971, WITH ALL BUT FIVE OF
THEM HAVING BEEN KILLED BY GUNSHOT WOUNDS.  FEDERAL BUREAU OF
INVESTIGATION LAW ENFORCEMENT BULLETIN, FEB. 1972, P. 33.  ACCORDING TO
ONE STUDY, APPROXIMATELY 30% OF POLICE SHOOTINGS OCCURRED WHEN A POLICE
OFFICER APPROACHED A SUSPECT SEATED IN AN AUTOMOBILE.  BRISTOW, POLICE
OFFICER SHOOTINGS-- A TACTICAL EVALUATION, 54 J.CRIM.L.C. & P.S. 93
(1963). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MARSHALL CONCURS,
DISSENTING. 

MY VIEWS HAVE BEEN STATED IN SUBSTANCE BY JUDGE FRIENDLY,
DISSENTING, IN THE COURT OF APPEALS.  436 F.2D 30, 35.  CONNECTICUT
ALLOWS ITS CITIZENS TO CARRY WEAPONS, CONCEALED OR OTHERWISE, AT WILL,
PROVIDED THEY HAVE A PERMIT.  CONN. GEN. STAT. REV. SECS. 29-35, 29
38.  CONNECTICUT LAW GIVES ITS POLICE NO AUTHORITY TO FRISK A PERSON
FOR A PERMIT.  YET THE ARREST WAS FOR ILLEGAL POSSESSION OF A GUN.  THE
ONLY BASIS FOR THAT ARREST WAS THE INFORMER'S TIP ON THE NARCOTICS. 
CAN IT BE SAID THAT A MAN IN POSSESSION OF NARCOTICS WILL NOT HAVE A
PERMIT FOR HIS GUN?  IS THAT WHY THE ARREST FOR POSSESSION OF A GUN IN
THE FREE-AND-EASY STATE OF CONNECTICUT BECOMES CONSTITUTIONAL? 

THE POLICE PROBLEM IS AN ACUTE ONE NOT BECAUSE OF THE FOURTH
AMENDMENT, BUT BECAUSE OF THE EASE WITH WHICH ANYONE CAN ACQUIRE A
PISTOL.  A POWERFUL LOBBY DINS INTO THE EARS OF OUR CITIZENRY THAT
THESE GUN PURCHASES ARE CONSTITUTIONAL RIGHTS PROTECTED BY THE SECOND
AMENDMENT, WHICH READS, "A WELL REGULATED MILITIA, BEING NECESSARY TO
THE SECURITY OF A FREE STATE, THE RIGHT OF THE PEOPLE TO KEEP AND BEAR
ARMS, SHALL NOT BE INFRINGED." 

THERE IS UNDER OUR DECISIONS NO REASON WHY STIFF STATE LAWS
GOVERNING THE PURCHASE AND POSSESSION OF PISTOLS MAY NOT BE ENACTED. 
THERE IS NO REASON WHY PISTOLS MAY NOT BE BARRED FROM ANYONE WITH A
POLICE RECORD.  THERE IS NO REASON WHY A STATE MAY NOT REQUIRE A
PURCHASER OF A PISTOL TO PASS A PSYCHIATRIC TEST.  THERE IS NO REASON
WHY ALL PISTOLS SHOULD NOT BE BARRED TO EVERYONE EXCEPT THE POLICE. 

THE LEADING CASE IS UNITED STATES V. MILLER, 307 U.S. 174, UPHOLDING
A FEDERAL LAW MAKING CRIMINAL THE SHIPMENT IN INTERSTATE COMMERCE OF A
SAWED-OFF SHOTGUN.  THE LAW WAS UPHELD, THERE BEING NO EVIDENCE THAT A
SAWED-OFF SHOTGUN HAD "SOME REASONABLE RELATIONSHIP TO THE PRESERVATION
OR EFFICIENCY OF A WELL REGULATED MILITIA."  ID., AT 178.  THE SECOND
AMENDMENT, IT WAS HELD, "MUST BE INTERPRETED AND APPLIED" WITH THE VIEW
OF MAINTAINING A "MILITIA." 

     "THE MILITIA WHICH THE STATES WERE EXPECTED TO MAINTAIN AND

  TRAIN IS SET IN CONTRAST WITH TROOPS WHICH THEY WERE FORBIDDEN TO

  KEEP WITHOUT THE CONSENT OF CONGRESS.  THE SENTIMENT OF THE TIME

  STRONGLY DISFAVORED STANDING ARMIES; THE COMMON VIEW WAS THAT

  ADEQUATE DEFENSE OF COUNTRY AND LAWS COULD BE SECURED THROUGH THE

  MILITIA-- CIVILIANS PRIMARILY, SOLDIERS ON OCCASION."  ID., AT

  178-179. 

CRITICS SAY THAT PROPOSALS LIKE THIS WATER DOWN THE SECOND
AMENDMENT.  OUR DECISIONS BELIE THAT ARGUMENT, FOR THE SECOND
AMENDMENT, AS NOTED, WAS DESIGNED TO KEEP ALIVE THE MILITIA.  BUT IF
WATERING-DOWN IS THE MOOD OF THE DAY, I WOULD PREFER TO WATER DOWN THE
SECOND RATHER THAN THE FOURTH AMENDMENT.  I SHARE WITH JUDGE FRIENDLY A
CONCERN THAT THE EASY EXTENSION OF TERRY V. OHIO, 392 U.S. 1, TO
"POSSESSORY OFFENSES" IS A SERIOUS INTRUSION ON FOURTH AMENDMENT
SAFEGUARDS.  "IF IT IS TO BE EXTENDED TO THE LATTER AT ALL, THIS SHOULD
BE ONLY WHERE OBSERVATION BY THE OFFICER HIMSELF OR WELL AUTHENTICATED
INFORMATION SHOWS 'THAT CRIMINAL ACTIVITY MAY BE AFOOT.'"  436 F.2D,AT
39, QUOTING TERRY V. OHIO, SUPRA, AT 30.     MR. JUSTICE BRENNAN,
DISSENTING. 

THE CRUCIAL QUESTION ON WHICH THIS CASE TURNS, AS THE COURT
CONCEDES, IS WHETHER, THERE BEING NO CONTENTION THAT WILLIAMS ACTED
VOLUNTARILY IN ROLLING DOWN THE WINDOW OF HIS CAR, THE STATE HAD SHOWN
SUFFICIENT CAUSE TO JUSTIFY SGT. CONNOLLY'S "FORCIBLE" STOP.  I WOULD
AFFIRM, BELIEVING, FOR THE FOLLOWING REASONS STATED BY JUDGE, AND NOW
CHIEF JUDGE, FRIENDLY, DISSENTING, 436 F.2D 30, 38-39, THAT THE STATE
DID NOT MAKE THAT SHOWING: 

     "TO BEGIN, I HAVE THE GRAVEST HESITANCY IN EXTENDING (TERRY V.

  OHIO, 392 U.S. 1 (1968)) TO CRIMES LIKE THE POSSESSION OF

  NARCOTICS.  . . . THERE IS TOO MUCH DANGER THAT, INSTEAD OF THE

STOP BEING THE OBJECT AND THE PROTECTIVE FRISK AN INCIDENT

 THERETO, THE REVERSE WILL BE TRUE.  AGAINST THAT WE HAVE HERE THE

  ADDED FACT OF THE REPORT THAT WILLIAMS HAD A GUN ON HIS PERSON. 

  . . . (BUT) CONNECTICUT ALLOWS ITS CITIZENS TO CARRY WEAPONS,

  CONCEALED OR OTHERWISE, AT WILL, PROVIDED ONLY THEY HAVE A

  PERMIT, CONN. GEN. STAT. SECS. 29-35 AND 29-38, AND GIVES ITS

  POLICE OFFICERS NO SPECIAL AUTHORITY TO STOP FOR THE PURPOSE OF

  DETERMINING WHETHER THE CITIZEN HAS ONE.  . . . 

     "IF I AM WRONG IN THINKING THAT TERRY SHOULD NOT BE APPLIED AT

  ALL TO MERE POSSESSORY OFFENSES, . . . I WOULD NOT FIND THE

  COMBINATION OF OFFICER CONNOLLY'S ALMOST MEANINGLESS OBSERVATION

  AND THE TIP IN THIS CASE TO BE SUFFICIENT JUSTIFICATION FOR THE

  INTRUSION.  THE TIP SUFFERED FROM A THREEFOLD DEFECT, WITH EACH

  FOLD COMPOUNDING THE OTHERS.  THE INFORMER WAS UNNAMED, HE WAS

  NOT SHOWN TO HAVE BEEN RELIABLE WITH RESPECT TO GUNS OR

  NARCOTICS, AND HE GAVE NO INFORMATION WHICH DEMONSTRATED PERSONAL

  KNOWLEDGE OR-- WHAT IS WORSE-- COULD NOT READILY HAVE BEEN

  MANUFACTURED BY THE OFFICER AFTER THE EVENT.  TO MY MIND, IT HAS

  NOT BEEN SUFFICIENTLY RECOGNIZED THAT THE DIFFERENCE BETWEEN THIS

  SORT OF TIP AND THE ACCURATE PREDICTION OF AN UNUSUAL EVENT IS AS

IMPORTANT ON THE LATTER SCORE AS ON THE FORMER.  (IN DRAPER V.

  UNITED STATES, 358 U.S. 307 (1959),) NARCOTICS AGENT MARSH WOULD

  HARDLY HAVE BEEN AT THE DENVER STATION AT THE EXACT MOMENT OF THE

  ARRIVAL OF THE TRAIN DRAPER HAD TAKEN FROM CHICAGO UNLESS SOMEONE

  HAD TOLD HIM SOMETHING IMPORTANT, ALTHOUGH THE AGENT MIGHT LATER

  HAVE EMBROIDERED THE DETAILS TO FIT THE OBSERVED FACTS.  . . .

  THERE IS NO SUCH GUARANTEE OF A PATROLLING OFFICER'S VERACITY

  WHEN HE TESTIFIES TO A 'TIP' FROM AN UNNAMED INFORMER SAYING NO

 MORE THAN THAT THE OFFICER WILL FIND A GUN AND NARCOTICS ON A MAN

  ACROSS THE STREET, AS HE LATER DOES.  IF THE STATE WISHES TO RELY

  ON A TIP OF THAT NATURE TO VALIDATE A STOP AND FRISK, REVELATION

  OF THE NAME OF THE INFORMER OR DEMONSTRATION THAT HIS NAME IS

  UNKNOWN AND COULD NOT REASONABLY HAVE BEEN ASCERTAINED SHOULD BE

  THE PRICE. 

    "TERRY V. OHIO WAS INTENDED TO FREE A POLICE OFFICER FROM THE

  RIGIDITY OF A RULE THAT WOULD PREVENT HIS DOING ANYTHING TO A MAN

  REASONABLY SUSPECTED OF BEING ABOUT TO COMMIT OR HAVING JUST

  COMMITTED A CRIME OF VIOLENCE, NO MATTER HOW GRAVE THE PROBLEM OR

  IMPELLING THE NEED FOR SWIFT ACTION, UNLESS THE OFFICER HAD WHAT

  A COURT WOULD LATER DETERMINE TO BE PROBABLE CAUSE FOR ARREST. 

  IT WAS MEANT FOR THE SERIOUS CASES OF IMMINENT DANGER OR OF HARM

RECENTLY PERPETRATED TO PERSONS OR PROPERTY, NOT THE CONVENTIONAL

  ONES OF POSSESSORY OFFENSES.  IF IT IS TO BE EXTENDED TO THE

  LATTER AT ALL, THIS SHOULD BE ONLY WHERE OBSERVATION BY THE

  OFFICER HIMSELF OR WELL AUTHENTICATED INFORMATION SHOWS 'THAT

  CRIMINAL ACTIVITY MAY BE AFOOT.'  392 U.S.,AT 30.  . . . I

  GREATLY FEAR THAT IF THE (CONTRARY VIEW) SHOULD BE FOLLOWED,

  TERRY WILL HAVE OPENED THE SLUICEGATES FOR SERIOUS AND UNINTENDED

  EROSION OF THE PROTECTION OF THE FOURTH AMENDMENT." 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

FOUR YEARS HAVE PASSED SINCE WE DECIDED TERRY V. OHIO, 392 U.S. 1
(1968), AND ITS COMPANION CASES, SIBRON V. NEW YORK AND PETERS V. NEW
YORK, 392 U.S. 40 (1968).  THEY WERE THE FIRST CASES IN WHICH THIS
COURT EXPLICITLY RECOGNIZED THE CONCEPT OF "STOP AND FRISK" AND
SQUARELY HELD THAT POLICE OFFICERS MAY, UNDER APPROPRIATE
CIRCUMSTANCES, STOP AND FRISK PERSONS SUSPECTED OF CRIMINAL ACTIVITY
EVEN THOUGH THERE IS LESS THAN PROBABLE CAUSE FOR AN ARREST.  THIS CASE
MARKS OUR FIRST OPPORTUNITY TO GIVE SOME FLESH TO THE BONES OF TERRY ET
AL. UNFORTUNATELY, THE FLESH PROVIDED BY TODAY'S DECISION CANNOT
POSSIBLY BE MADE TO FIT ON TERRY'S SKELETAL FRAMEWORK. 

"(THE MOST BASIC CONSTITUTIONAL RULE IN THIS AREA IS THAT 'SEARCHES
CONDUCTED OUTSIDE THE JUDICIAL PROCESS, WITHOUT PRIOR APPROVAL BY JUDGE
OR MAGISTRATE, ARE PER SE UNREASONABLE UNDER THE FOURTH AMENDMENT--
SUBJECT ONLY TO A FEW SPECIFICALLY ESTABLISHED AND WELL-DELINEATED
EXCEPTIONS.'  THE EXCEPTIONS ARE 'JEALOUSLY AND CAREFULLY DRAWN,' AND
THERE MUST BE 'A SHOWING BY THOSE WHO SEEK EXEMPTION . . . THAT THE
EXIGENCIES OF THE SITUATION MADE THAT COURSE IMPERATIVE.'  '(THE BURDEN
IS ON THOSE SEEKING THE EXEMPTION TO SHOW THE NEED FOR IT.'"  COOLIDGE
V. NEW HAMPSHIRE, 403 U.S. 443, 454-455 (1971).  IN TERRY WE SAID THAT
"WE DO NOT RETREAT FROM OUR HOLDINGS THAT THE POLICE MUST, WHENEVER
PRACTICABLE, OBTAIN ADVANCE JUDICIAL APPROVAL OF SEARCHES AND SEIZURES
THROUGH THE WARRANT PROCEDURE."  392 U.S.,AT 20.  YET, WE UPHELD THE
STOP AND FRISK IN TERRY BECAUSE WE RECOGNIZED THAT THE REALITIES OF ON
THE-STREET LAW ENFORCEMENT REQUIRE AN OFFICER TO ACT AT TIMES ON THE
BASIS OF STRONG EVIDENCE, SHORT OF PROBABLE CAUSE, THAT CRIMINAL
ACTIVITY IS TAKING PLACE AND THAT THE CRIMINAL IS ARMED AND DANGEROUS. 
HENCE, TERRY STANDS ONLY FOR THE PROPOSITION THAT POLICE OFFICERS HAVE
A "NARROWLY DRAWN AUTHORITY TO . . . SEARCH FOR WEAPONS" WITHOUT A
WARRANT.  ID., AT 27. 

IN TODAY'S DECISION THE COURT IGNORES THE FACT THAT TERRY
BEGRUDGINGLY ACCEPTED THE NECESSITY FOR CREATING AN EXCEPTION FROM THE
WARRANT REQUIREMENT OF THE FOURTH AMENDMENT AND TREATS THIS CASE AS IF
WARRANTLESS SEARCHES WERE THE RULE RATHER THAN THE "NARROWLY DRAWN"
EXCEPTION.  THIS DECISION BETRAYS THE CAREFUL BALANCE THAT TERRY SOUGHT
TO STRIKE BETWEEN A CITIZEN'S RIGHT TO PRIVACY AND HIS GOVERNMENT'S
RESPONSIBILITY FOR EFFECTIVE LAW ENFORCEMENT AND EXPANDS THE CONCEPT OF
WARRANTLESS SEARCHES FAR BEYOND ANYTHING HERETOFORE RECOGNIZED AS
LEGITIMATE.  I DISSENT. 

        I 

A. THE COURT'S OPINION STATES THE FACTS AND I REPEAT ONLY THOSE THAT
APPEAR TO ME TO BE RELEVANT TO THE FOURTH AMENDMENT ISSUES PRESENTED. 

RESPONDENT WAS SITTING ON THE PASSENGER SIDE OF THE FRONT SEAT OF A
CAR PARKED ON THE STREET IN A "HIGH CRIME AREA" IN BRIDGEPORT,
CONNECTICUT, AT 2:15 A.M. WHEN A POLICE OFFICER APPROACHED HIS CAR. 
DURING A CONVERSATION THAT HAD JUST TAKEN PLACE NEARBY, THE OFFICER WAS
TOLD BY AN INFORMANT THAT RESPONDENT HAD NARCOTICS ON HIS PERSON AND
THAT HE HAD A GUN IN HIS WAISTBAND.  THE OFFICER SAW THAT THE MOTOR WAS
NOT RUNNING, THAT RESPONDENT WAS SEATED PEACEFULLY IN THE CAR, AND THAT
THERE WAS NO INDICATION THAT HE WAS ABOUT TO LEAVE THE SCENE.  AFTER
THE OFFICER ASKED RESPONDENT TO OPEN THE DOOR, RESPONDENT ROLLED DOWN
HIS WINDOW INSTEAD AND THE OFFICER REACHED INTO THE CAR AND PULLED A
GUN FROM RESPONDENT'S WAISTBAND.  THE OFFICER IMMEDIATELY PLACED
RESPONDENT UNDER ARREST FOR CARRYING THE WEAPON AND SEARCHED HIM,
FINDING HEROIN IN HIS COAT.  MORE HEROIN WAS FOUND IN A LATER SEARCH OF
THE AUTOMOBILE.  RESPONDENT MOVED TO SUPPRESS BOTH THE GUN AND THE
HEROIN PRIOR TO TRIAL.  HIS MOTION WAS DENIED AND HE WAS CONVICTED OF
POSSESSING BOTH ITEMS. 

B. THE COURT ERRONEOUSLY ATTEMPTS TO DESCRIBE THE SEARCH FOR THE GUN
AS A PROTECTIVE SEARCH INCIDENT TO A REASONABLE INVESTIGATORY STOP. 
BUT, AS IN TERRY, SIBRON AND PETERS, SUPRA, THERE IS NO OCCASION IN
THIS CASE TO DETERMINE WHETHER OR NOT POLICE OFFICERS HAVE A RIGHT TO
SEIZE AND TO RESTRAIN A CITIZEN IN ORDER TO INTERROGATE HIM.  THE FACTS
ARE CLEAR THAT THE OFFICER INTENDED TO MAKE THE SEARCH AS SOON AS HE
APPROACHED THE RESPONDENT.  HE ASKED NO QUESTIONS; HE MADE NO
INVESTIGATION; HE SIMPLY SEARCHED.  THERE WAS NOTHING APART FROM THE
INFORMATION SUPPLIED BY THE INFORMANT TO CAUSE THE OFFICER TO SEARCH. 
OUR INQUIRY MUST FOCUS, THEREFORE, AS IT DID IN TERRY ON WHETHER THE
OFFICER HAD SUFFICIENT FACTS FROM WHICH HE COULD REASONABLY INFER THAT
RESPONDENT WAS NOT ONLY ENGAGING IN ILLEGAL ACTIVITY, BUT ALSO THAT HE
WAS ARMED AND DANGEROUS.  THE FOCUS FALLS ON THE INFORMANT. 

THE ONLY INFORMATION THAT THE INFORMANT HAD PREVIOUSLY GIVEN THE
OFFICER INVOLVED HOMOSEXUAL CONDUCT IN THE LOCAL RAILROAD STATION.  THE
FOLLOWING COLLOQUY TOOK PLACE BETWEEN RESPONDENT'S COUNSEL AND THE
OFFICER AT THE HEARING ON RESPONDENT'S MOTION TO SUPPRESS THE EVIDENCE
THAT HAD BEEN SEIZED FROM HIM. 

     "Q.  NOW, WITH RESPECT TO THE INFORMATION THAT WAS GIVEN YOU

  ABOUT HOMOSEXUALS IN THE BRIDGEPORT POLICE STATION (SIC), DID

  THAT LEAD TO AN ARREST?  A. NO. 

     "Q.  AN ARREST WAS NOT MADE.  A. NO. THERE WAS NO
SUBSTANTIATING EVIDENCE. 

        .          .          .          . 

     "Q.  THERE WAS NO SUBSTANTIATING EVIDENCE?  A. NO. 

     "Q.  AND WHAT DO YOU MEAN BY THAT?  A. I DIDN'T HAVE OCCASION

  TO WITNESS THESE INDIVIDUALS COMMITTING ANY CRIME OF ANY NATURE. 

      "Q.  IN OTHER WORDS, AFTER THIS PERSON GAVE YOU THE

  INFORMATION, YOU CHECKED FOR CORROBORATION BEFORE YOU MADE AN

  ARREST.  IS THAT RIGHT?  A. WELL, I CHECKED TO DETERMINE THE

  POSSIBILITY OF HOMOSEXUAL ACTIVITY. 

"Q.  AND SINCE AN ARREST WAS MADE, I TAKE IT YOU DIDN'T FIND

  ANY SUBSTANTIATING INFORMATION.  A. I'M SORRY COUNSELOR, YOU SAY

  SINCE AN ARREST WAS MADE. 

     "Q.  WAS NOT MADE.  SINCE AN ARREST WAS NOT MADE, I PRESUME
YOU

  DIDN'T FIND ANY SUBSTANTIATING INFORMATION.  A. NO. 

     "Q.  SO THAT, YOU DON'T RECALL ANY OTHER SPECIFIC INFORMATION

GIVEN YOU ABOUT THE COMMISSION OF CRIMES BY THIS INFORMANT.  A.

  NO. 

     "Q.  AND YOU STILL THOUGHT THIS PERSON WAS RELIABLE.  A.
YES."  /1/ 

WERE WE ASKED TO DETERMINE WHETHER THE INFORMATION SUPPLIED BY THE
INFORMANT WAS SUFFICIENT TO PROVIDE PROBABLE CAUSE FOR AN ARREST AND
SEARCH, RATHER THAN A STOP AND FRISK, THERE CAN BE NO DOUBT THAT WE
WOULD HOLD THAT IT WAS INSUFFICIENT.  THIS COURT HAS SQUARELY HELD THAT
A SEARCH AND SEIZURE CANNOT BE JUSTIFIED ON THE BASIS OF CONCLUSORY
ALLEGATIONS OF AN UNNAMED INFORMANT WHO IS ALLEGEDLY CREDIBLE.  AGUILAR
V. TEXAS, 378 U.S. 108 (1964).  IN THE RECENT CASE OF SPINELLI V.
UNITED STATES, 393 U.S. 410 (1969), MR. JUSTICE HARLAN MADE IT PLAIN
BEYOND ANY DOUBT THAT WHERE POLICE RELY ON AN INFORMANT TO MAKE A
SEARCH AND SEIZURE, THEY MUST KNOW THAT THE INFORMANT IS GENERALLY
TRUSTWORTHY AND THAT HE HAS OBTAINED HIS INFORMATION IN A RELIABLE
WAY.  ID., AT 417.  SINCE THE TESTIMONY OF THE ARRESTING OFFICER IN THE
INSTANT CASE PATENTLY FAILS TO DEMONSTRATE THAT THE INFORMANT WAS KNOWN
TO BE TRUSTWORTHY AND SINCE IT IS ALSO CLEAR THAT THE OFFICER HAD NO
IDEA OF THE SOURCE OF THE INFORMANT'S "KNOWLEDGE," A SEARCH AND SEIZURE
WOULD HAVE BEEN ILLEGAL. 

ASSUMING, ARGUENDO, THAT THIS CASE TRULY INVOLVES, NOT AN ARREST AND
A SEARCH INCIDENT THERETO, BUT A STOP AND FRISK, /2/  WE MUST DECIDE
WHETHER OR NOT THE INFORMATION POSSESSED BY THE OFFICER JUSTIFIED THIS
INTERFERENCE WITH RESPONDENT'S LIBERTY.  TERRY, OUR ONLY CASE TO
ACTUALLY UPHOLD A STOP AND FRISK, /3/  IS NOT DIRECTLY IN POINT,
BECAUSE THE POLICE OFFICER IN THAT CASE ACTED ON THE BASIS OF HIS OWN
PERSONAL OBSERVATIONS.  NO INFORMANT WAS INVOLVED.  BUT THE RATIONALE
OF TERRY IS STILL CONTROLLING, AND IT REQUIRES THAT WE CONDEMN THE
CONDUCT OF THE POLICE OFFICER IN ENCOUNTERING THE RESPONDENT. 

TERRY DID NOT HOLD THAT WHENEVER A POLICEMAN HAS A HUNCH THAT A
CITIZEN IS ENGAGING IN CRIMINAL ACTIVITY, HE MAY ENGAGE IN A STOP AND
FRISK.  IT HELD THAT IF POLICE OFFICERS WANT TO STOP AND FRISK, THEY
MUST HAVE SPECIFIC FACTS FROM WHICH THEY CAN REASONABLY INFER THAT AN
INDIVIDUAL IS ENGAGED IN CRIMINAL ACTIVITY AND IS ARMED AND DANGEROUS. 
/4/  IT WAS CENTRAL TO OUR DECISION IN TERRY THAT THE POLICE OFFICER
ACTED ON THE BASIS OF HIS OWN PERSONAL OBSERVATIONS AND THAT HE
CAREFULLY SCRUTINIZED THE CONDUCT OF HIS SUSPECTS BEFORE INTERFERING
WITH THEM IN ANY WAY.  WHEN WE LEGITIMATED THE CONDUCT OF THE OFFICER
IN TERRY WE DID SO BECAUSE OF THE SUBSTANTIAL RELIABILITY OF THE
INFORMATION ON WHICH THE OFFICER BASED HIS DECISION TO ACT. 

IF THE COURT DOES NOT IGNORE THE CARE WITH WHICH WE EXAMINED THE
KNOWLEDGE POSSESSED BY THE OFFICER IN TERRY WHEN HE ACTED, THEN I
CANNOT SEE HOW THE ACTIONS OF THE OFFICER IN THIS CASE CAN BE UPHELD. 
THE COURT EXPLAINS WHAT THE OFFICER KNEW ABOUT RESPONDENT BEFORE
ACCOSTING HIM.  BUT WHAT IS MORE SIGNIFICANT IS WHAT HE DID NOT KNOW. 
WITH RESPECT TO THE SCENE GENERALLY, THE OFFICER HAD NO IDEA HOW LONG
RESPONDENT HAD BEEN IN THE CAR, HOW LONG THE CAR HAD BEEN PARKED, OR TO
WHOM THE CAR BELONGED.  WITH RESPECT TO THE GUN, /5/  THE OFFICER DID
NOT KNOW IF OR WHEN THE INFORMANT HAD EVER SEEN THE GUN, OR WHETHER THE
GUN WAS CARRIED LEGALLY, AS CONNECTICUT LAW PERMITTED, OR ILLEGALLY. 
/6/  AND WITH RESPECT TO THE NARCOTICS, THE OFFICER DID NOT KNOW WHAT
KIND OF NARCOTICS RESPONDENT ALLEGEDLY HAD, WHETHER THEY WERE LEGALLY
OR ILLEGALLY POSSESSED, WHAT THE BASIS OF THE INFORMANT'S KNOWLEDGE
WAS, OR EVEN WHETHER THE INFORMANT WAS CAPABLE OF DISTINGUISHING
NARCOTICS FROM OTHER SUBSTANCES.  /7/ 

UNABLE TO ANSWER ANY OF THESE QUESTIONS, THE OFFICER NEVERTHELESS
DETERMINED THAT IT WAS NECESSARY TO INTRUDE ON RESPONDENT'S LIBERTY.  I
BELIEVE THAT HIS DETERMINATION WAS TOTALLY UNREASONABLE.  AS I READ
TERRY, AN OFFICER MAY ACT ON THE BASIS OF RELIABLE INFORMATION SHORT OF
PROBABLE CAUSE TO MAKE A STOP, AND ULTIMATELY A FRISK, IF NECESSARY;
BUT THE OFFICER MAY NOT USE UNRELIABLE, UNSUBSTANTIATED, CONCLUSORY
HEARSAY TO JUSTIFY AN INVASION OF LIBERTY.  TERRY NEVER MEANT TO
APPROVE THE KIND OF KNEE-JERK POLICE REACTION THAT WE HAVE BEFORE US IN
THIS CASE. 

EVEN ASSUMING THAT THE OFFICER HAD SOME LEGITIMATE REASON FOR
RELYING ON THE INFORMANT, TERRY REQUIRES, BEFORE ANY STOP AND FRISK IS
MADE, THAT THE RELIABLE INFORMATION IN THE OFFICER'S POSSESSION
DEMONSTRATE THAT THE SUSPECT IS BOTH ARMED AND DANGEROUS.  /8/  THE
FACT REMAINS THAT CONNECTICUT SPECIFICALLY AUTHORIZES PERSONS TO CARRY
GUNS SO LONG AS THEY HAVE A PERMIT.  THUS, THERE WAS NO REASON FOR THE
OFFICER TO INFER FROM ANYTHING THAT THE INFORMANT SAID THAT THE
RESPONDENT WAS DANGEROUS.  HIS FRISK WAS, THEREFORE, ILLEGAL UNDER
TERRY. 

        II 

EVEN IF I COULD AGREE WITH THE COURT THAT THE STOP AND FRISK IN THIS
CASE WAS PROPER, I COULD NOT GO FURTHER AND SUSTAIN THE ARREST AND THE
SUBSEQUENT SEARCHES.  IT TAKES PROBABLE CAUSE TO JUSTIFY AN ARREST AND
SEARCH AND SEIZURE INCIDENT THERETO.  PROBABLE CAUSE MEANS THAT THE
"FACTS AND CIRCUMSTANCES BEFORE THE OFFICER ARE SUCH AS TO WARRANT A
MAN OF PRUDENCE AND CAUTION IN BELIEVING THAT THE OFFENSE HAS BEEN
COMMITTED.  . . . " STACEY V. EMERY, 97 U.S. 642, 645 (1878).  "(GOOD
FAITH IS NOT ENOUGH TO CONSTITUTE PROBABLE CAUSE."  DIRECTOR GENERAL V.
KASTENBAUM, 263 U.S. 25, 28 (1923). 

ONCE THE OFFICER SEIZED THE GUN FROM RESPONDENT, IT IS
UNCONTRADICTED THAT HE DID NOT ASK WHETHER RESPONDENT HAD A LICENSE TO
CARRY IT, OR WHETHER RESPONDENT CARRIED IT FOR ANY OTHER LEGAL REASON
UNDER CONNECTICUT LAW.  RATHER, THE OFFICER PLACED HIM UNDER ARREST
IMMEDIATELY AND HASTENED TO SEARCH HIS PERSON.  SINCE CONNECTICUT HAS
NOT MADE IT ILLEGAL FOR PRIVATE CITIZENS TO CARRY GUNS, THERE IS
NOTHING IN THE FACTS OF THIS CASE TO WARRANT A MAN "OF PRUDENCE AND
CAUTION" TO BELIEVE THAT ANY OFFENSE HAD BEEN COMMITTED MERELY BECAUSE
RESPONDENT HAD A GUN ON HIS PERSON.  /9/  ANY IMPLICATION THAT
RESPONDENT'S SILENCE WAS SOME SORT OF A TACIT ADMISSION OF GUILT WOULD
BE UTTERLY ABSURD. 

IT IS SIMPLY NOT REASONABLE TO EXPECT SOMEONE TO PROTEST THAT HE IS
NOT ACTING ILLEGALLY BEFORE HE IS TOLD THAT HE IS SUSPECTED OF CRIMINAL
ACTIVITY.  IT WOULD HAVE BEEN A SIMPLE MATTER FOR THE OFFICER TO ASK
WHETHER RESPONDENT HAD A PERMIT, BUT HE CHOSE NOT TO DO SO.  IN MAKING
THIS CHOICE, HE CLEARLY VIOLATED THE FOURTH AMENDMENT. 

THIS CASE MARKS A DEPARTURE FROM THE MAINSTREAM OF OUR FOURTH
AMENDMENT CASES.  IN JOHNSON V. UNITED STATES, 333 U.S. 10 (1948), FOR
EXAMPLE, THE ARRESTING OFFICER HAD AN INFORMANT'S TIP AND ACTUALLY
SMELLED OPIUM COMING FROM A ROOM.  THIS COURT STILL FOUND THE ARREST
UNLAWFUL.  AND IN SPINELLI V. UNITED STATES, 393 U.S. 410, WE FOUND
THAT THERE WAS NO PROBABLE CAUSE EVEN WHERE AN INFORMANT'S INFORMATION
WAS CORROBORATED BY PERSONAL OBSERVATION.  IF THERE WAS NO PROBABLE
CAUSE IN THOSE CASES, I FIND IT IMPOSSIBLE TO UNDERSTAND HOW THERE CAN
BE PROBABLE CAUSE IN THIS CASE. 

        III 

MR. JUSTICE DOUGLAS WAS THE SOLE DISSENTER IN TERRY.  HE WARNED OF
THE "POWERFUL HYDRAULIC PRESSURES THROUGHOUT OUR HISTORY THAT BEAR
HEAVILY ON THE COURT TO WATER DOWN CONSTITUTIONAL GUARANTEES.  . . . "
392 U.S.,AT 39.  WHILE I TOOK THE POSITION THEN THAT WE WERE NOT
WATERING DOWN RIGHTS, BUT WERE HESITANTLY AND CAUTIOUSLY STRIKING A
NECESSARY BALANCE BETWEEN THE RIGHTS OF AMERICAN CITIZENS TO BE FREE
FROM GOVERNMENT INTRUSION INTO THEIR PRIVACY AND THEIR GOVERNMENT'S
URGENT NEED FOR A NARROW EXCEPTION TO THE WARRANT REQUIREMENT OF THE
FOURTH AMENDMENT, TODAY'S DECISION DEMONSTRATES JUST HOW PRESCIENT MR.
JUSTICE DOUGLAS WAS. 

IT SEEMS THAT THE DELICATE BALANCE THAT TERRY STRUCK WAS SIMPLY TOO
DELICATE, TOO SUSCEPTIBLE TO THE "HYDRAULIC PRESSURES" OF THE DAY.  AS
A RESULT OF TODAY'S DECISION, THE BALANCE STRUCK IN TERRY IS NOW
HEAVILY WEIGHTED IN FAVOR OF THE GOVERNMENT.  AND THE FOURTH AMENDMENT,
WHICH WAS INCLUDED IN THE BILL OF RIGHTS TO PREVENT THE KIND OF
ARBITRARY AND OPPRESSIVE POLICE ACTION INVOLVED HEREIN, IS DEALT A
SERIOUS BLOW.  TODAY'S DECISION INVOKES THE SPECTER OF A SOCIETY IN
WHICH INNOCENT CITIZENS MAY BE STOPPED, SEARCHED, AND ARRESTED AT THE
WHIM OF POLICE OFFICERS WHO HAVE ONLY THE SLIGHTEST SUSPICION OF
IMPROPER CONDUCT. 

/1/  APP. 96-97. 

/2/  TERRY V. OHIO, 392 U.S. 1 (1968), MAKES IT CLEAR THAT A STOP
AND FRISK IS A SEARCH AND SEIZURE WITHIN THE MEANING OF THE FOURTH
AMENDMENT.  WHEN I USE THE TERM STOP AND FRISK HEREIN, I MERELY INTEND
TO EMPHASIZE THAT IT IS, AS TERRY HELD, A LESSER INTRUSION THAN A FULL
SCALE SEARCH AND SEIZURE. 

/3/  IN SIBRON V. NEW YORK, 392 U.S. 40 (1968), THE COURT HELD THAT
THE ACTION OF THE POLICEMAN COULD NOT BE JUSTIFIED AS A STOP AND
FRISK.  IN PETERS V. NEW YORK, 392 U.S. 40 (1968), THE COURT SUSTAINED
THE VALIDITY OF A SEARCH AND SEIZURE BY HOLDING THAT IT WAS INCIDENT TO
A LEGAL ARREST. 

/4/  TERRY V. OHIO, 392 U.S.,AT 29; SIBRON V. NEW YORK, 392 U.S.,AT
64. 

/5/  THE FACT THAT THE RESPONDENT CARRIED HIS GUN IN A HIGH-CRIME
AREA IS IRRELEVANT.  IN SUCH AREAS IT IS MORE PROBABLE THAN NOT THAT
CITIZENS WOULD BE MORE LIKELY TO CARRY WEAPONS AUTHORIZED BY THE STATE
TO PROTECT THEMSELVES. 

/6/  SEE CONN. GEN. STAT. REV. SEC. 29-35. 

/7/  CONNECTICUT PERMITS POSSESSION OF CERTAIN NARCOTICS UNDER
SPECIFIED CIRCUMSTANCES-- E.G., PURSUANT TO A DOCTOR'S PRESCRIPTION. 
SEE CONN. GEN. STAT. REV. SECS. 19-443, 19-456(C), 19-481. 

/8/  THE COURT VIRTUALLY IGNORES THE REQUIREMENT THAT THE SUSPECT BE
DANGEROUS, AS WELL AS ARMED.  OTHER COURTS HAVE FOLLOWED TERRY MORE
CLOSELY.  SEE, E.G., COMMONWEALTH V. BOURKE, 218 PA.SUPER.  320, 323,
280 A.2D 425, 427 (1971); COMMONWEALTH V. CLARKE, 219 PA.SUPER.  340,
343, 280 A.2D 662, 663 (1971); FINLEY V. PEOPLE, 176 COLO. 1, 488 P.2D
883 (1971).  SEE ALSO STATE V. GOUDY, 52 HAW.  497, 505, 479 P.2D 800,
805 (1971) (ABE, J., DISSENTING). 

/9/  THE COURT APPEARS TO RELY ON THE FACT THAT THE EXISTENCE OF THE
GUN CORROBORATED THE INFORMATION SUPPLIED TO THE OFFICER BY THE
INFORMANT.  IT CANNOT BE DISPUTED THAT THERE IS MINIMAL CORROBORATION
HERE, BUT THE FACT REMAINS THAT THE OFFICER STILL LACKED ANY KNOWLEDGE
THAT RESPONDENT HAD DONE ANYTHING ILLEGAL.  SINCE CARRYING A GUN IS NOT
PER SE ILLEGAL IN CONNECTICUT, THE FACT THAT RESPONDENT CARRIED A GUN
IS NO MORE RELEVANT TO PROBABLE CAUSE THAN THE FACT THAT HIS SHIRT MAY
HAVE BEEN BLUE, OR THAT HE WAS WEARING A JACKET.  MOREOVER, THE FACT
THAT THE INFORMANT CAN IDENTIFY A GUN ON SIGHT DOES NOT INDICATE AN
ABILITY TO DO THE SAME WITH NARCOTICS.  THE CORROBORATION OF THIS ONE
FACT IS A FAR CRY FROM THE CORROBORATION THAT THE COURT FOUND
SUFFICIENT TO SUSTAIN AN ARREST IN DRAPER V. UNITED STATES, 358 U.S.
307 (1959). 

DONALD A. BROWNE ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

EDWARD F. HENNESSEY ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL PETERSEN, AND BEATRICE
ROSENBERG FOR THE UNITED STATES; BY FRANK S. HOGAN, PRO SE, MICHAEL R.
JUVILER, AND HERMAN KAUFMAN FOR THE DISTRICT ATTORNEY OF NEW YORK
COUNTY; AND BY FRANK G. CARRINGTON, JR., ALAN S. GANZ, WAYNE W.
SCHMIDT, AND GLEN R. MURPHY FOR AMERICANS FOR EFFECTIVE LAW
ENFORCEMENT, INC., ET AL. 

BURT NEUBORNE AND MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION AS AMICUS CURIAE. 
..END :






MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163 


       MOOSE LODGE NO. 107 V. IRVIS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

        DISTRICT OF PENNSYLVANIA

        NO. 70-75.  ARGUED FEBRUARY 28, 1972-- DECIDED JUNE 12,

           1972 


APPELLEE IRVIS, A NEGRO GUEST OF A MEMBER OF APPELLANT, A PRIVATE
CLUB, WAS REFUSED SERVICE AT THE CLUB'S DINING ROOM AND BAR SOLELY
BECAUSE OF HIS RACE.  IN SUING FOR INJUNCTIVE RELIEF, APPELLEE
CONTENDED THAT THE DISCRIMINATION WAS STATE ACTION, AND THUS A
VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT,
BECAUSE THE PENNSYLVANIA LIQUOR BOARD HAD ISSUED APPELLANT A PRIVATE
CLUB LIQUOR LICENSE.  THE DISTRICT COURT FOUND APPELLANT'S MEMBERSHIP
AND GUEST PRACTICES DISCRIMINATORY, AGREED WITH APPELLEE'S VIEW THAT
STATE ACTION WAS PRESENT, AND DECLARED THE LIQUOR LICENSE INVALID AS
LONG AS APPELLANT CONTINUED ITS DISCRIMINATORY PRACTICES.  APPELLANT'S
MOTION TO HAVE THE FINAL DECREE LIMITED TO ITS GUEST POLICY WAS OPPOSED
BY APPELLEE, AND THE COURT DENIED THE MOTION.  FOLLOWING THE DISTRICT
COURT'S DECISION, THE APPLICABLE BYLAWS WERE AMENDED TO EXCLUDE AS
GUESTS THOSE WHO WOULD BE EXCLUDED AS MEMBERS.  HELD: 

1.  APPELLEE, WHO HAD NOT APPLIED FOR OR BEEN DENIED MEMBERSHIP IN
APPELLANT PRIVATE CLUB, HAD NO STANDING TO CONTEST APPELLANT'S
MEMBERSHIP PRACTICES.  HE DID, HOWEVER, HAVE STANDING TO LITIGATE THE
CONSTITUTIONAL VALIDITY OF APPELLANT'S DISCRIMINATORY POLICIES TOWARD
MEMBERS' GUESTS, AND HIS OPPOSITION TO AMENDMENT OF THE JUDGMENT DID
NOT CONSTITUTE A DISCLAIMER OF INJUNCTIVE RELIEF DIRECTED AT
APPELLANT'S GUEST POLICIES.  PP. 165-171. 

2.  THE OPERATION OF PENNSYLVANIA'S REGULATORY SCHEME ENFORCED BY
THE STATE LIQUOR BOARD, EXCEPT AS NOTED BELOW, DOES NOT SUFFICIENTLY
IMPLICATE THE STATE IN APPELLANT'S DISCRIMINATORY GUEST PRACTICES SO AS
TO MAKE THOSE PRACTICES "STATE ACTION" WITHIN THE PURVIEW OF THE EQUAL
PROTECTION CLAUSE, AND THERE IS NO SUGGESTION IN THE RECORD THAT THE
STATE'S REGULATION OF THE SALE OF LIQUOR IS INTENDED OVERTLY OR
COVERTLY TO ENCOURAGE DISCRIMINATION.  BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715, DISTINGUISHED.  PP. 171-177. 

3.  PENNSYLVANIA LIQUOR BOARD'S REGULATION REQUIRING THAT "EVERY
CLUB LICENSEE SHALL ADHERE TO ALL THE PROVISIONS OF ITS CONSTITUTION
AND BY-LAWS" IN EFFECT PLACED STATE SANCTIONS BEHIND THE DISCRIMINATORY
GUEST PRACTICES THAT WERE ENACTED AFTER THE DISTRICT COURT'S DECISION,
AND ENFORCEMENT OF THAT REGULATION SHOULD BE ENJOINED TO THE EXTENT
THAT IT REQUIRES APPELLANT TO ADHERE TO THOSE PRACTICES.  PP. 177-179. 

318 F.SUPP.  1246, REVERSED AND REMANDED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED, POST, P.
179.  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, J.,
JOINED, POST, P. 184. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

APPELLEE IRVIS, A NEGRO (HEREAFTER APPELLEE), WAS REFUSED SERVICE BY
APPELLANT MOOSE LODGE, A LOCAL BRANCH OF THE NATIONAL FRATERNAL
ORGANIZATION LOCATED IN HARRISBURG, PENNSYLVANIA.  APPELLEE THEN
BROUGHT THIS ACTION UNDER 42 U.S.C. 1983 FOR INJUNCTIVE RELIEF IN THE
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. 
HE CLAIMED THAT BECAUSE THE PENNSYLVANIA LIQUOR BOARD HAD ISSUED
APPELLANT MOOSE LODGE A PRIVATE CLUB LICENSE THAT AUTHORIZED THE SALE
OF ALCOHOLIC BEVERAGES ON ITS PREMISES, THE REFUSAL OF SERVICE TO HIM
WAS "STATE ACTION" FOR THE PURPOSES OF THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  HE NAMED BOTH MOOSE LODGE AND THE
PENNSYLVANIA LIQUOR AUTHORITY AS DEFENDANTS, SEEKING INJUNCTIVE RELIEF
THAT WOULD HAVE REQUIRED THE DEFENDANT LIQUOR BOARD TO REVOKE MOOSE
LODGE'S LICENSE SO LONG AS IT CONTINUED ITS DISCRIMINATORY PRACTICES. 
APPELLEE SOUGHT NO DAMAGES. 

A THREE-JUDGE DISTRICT COURT, CONVENED AT APPELLEE'S REQUEST, UPHELD
HIS CONTENTION ON THE MERITS, AND ENTERED A DECREE DECLARING INVALID
THE LIQUOR LICENSE ISSUED TO MOOSE LODGE "AS LONG AS IT FOLLOWS A
POLICY OF RACIAL DISCRIMINATION IN ITS MEMBERSHIP OR OPERATING POLICIES
OR PRACTICES."  MOOSE LODGE ALONE APPEALED FROM THE DECREE, AND WE
POSTPONED DECISION AS TO JURISDICTION UNTIL THE HEARING ON THE MERITS,
401 U.S. 992.  APPELLANT URGES, IN THE ALTERNATIVE, THAT WE EITHER
VACATE THE JUDGMENT BELOW BECAUSE THERE IS NOT PRESENTLY A CASE OR
CONTROVERSY BETWEEN THE PARTIES, OR THAT WE REVERSE ON THE MERITS. 

        I 

THE DISTRICT COURT IN ITS OPINION FOUND THAT "A CAUCASIAN MEMBER IN
GOOD STANDING BROUGHT PLAINTIFF, A NEGRO, TO THE LODGE'S DINING ROOM
AND BAR AS HIS GUEST AND REQUESTED SERVICE OF FOOD AND BEVERAGES.  THE
LODGE THROUGH ITS EMPLOYEES REFUSED SERVICE TO PLAINTIFF SOLELY BECAUSE
HE IS A NEGRO."  318 F.SUPP.  1246, 1247.  IT IS UNDISPUTED THAT EACH
LOCAL MOOSE LODGE IS BOUND BY THE CONSTITUTION AND GENERAL BYLAWS OF
THE SUPREME LODGE, THE LATTER OF WHICH CONTAIN A PROVISION LIMITING
MEMBERSHIP IN THE LODGES TO WHITE MALE CAUCASIANS.  THE DISTRICT COURT
IN THIS CONNECTION FOUND THAT "(THE LODGES ACCORDINGLY MAINTAIN A
POLICY AND PRACTICE OF RESTRICTING MEMBERSHIP TO THE CAUCASIAN RACE AND
PERMITTING MEMBERS TO BRING ONLY CAUCASIAN GUESTS ON LODGE PREMISES,
PARTICULARLY TO THE DINING ROOM AND BAR."  IBID. 

THE DISTRICT COURT RULED IN FAVOR OF APPELLEE ON HIS FOURTEENTH
AMENDMENT CLAIM, AND ENTERED THE PREVIOUSLY DESCRIBED DECREE. 
FOLLOWING ITS LOSS ON THE MERITS IN THE DISTRICT COURT, MOOSE LODGE
MOVED TO MODIFY THE FINAL DECREE BY LIMITING ITS EFFECT TO
DISCRIMINATORY POLICIES WITH RESPECT TO THE SERVICE OF GUESTS. 
APPELLEE OPPOSED THE PROPOSED MODIFICATION, AND THE COURT DENIED THE
MOTION. 

THE DISTRICT COURT DID NOT FIND, AND IT COULD NOT HAVE FOUND ON THIS
RECORD, THAT APPELLEE HAD SOUGHT MEMBERSHIP IN MOOSE LODGE AND BEEN
DENIED IT.  APPELLANT CONTENDS THAT BECAUSE OF THIS FACT, APPELLEE HAD
NO STANDING TO LITIGATE THE CONSTITUTIONAL ISSUE RESPECTING MOOSE
LODGE'S MEMBERSHIP REQUIREMENTS, AND THAT THEREFORE THE DECREE OF THE
COURT BELOW ERRED INSOFAR AS IT DECIDED THAT ISSUE. 

ANY INJURY TO APPELLEE FROM THE CONDUCT OF MOOSE LODGE STEMMED, NOT
FROM THE LODGE'S MEMBERSHIP REQUIREMENTS, BUT FROM ITS POLICIES WITH
RESPECT TO THE SERVING OF GUESTS OF MEMBERS.  APPELLEE HAS STANDING TO
SEEK REDRESS FOR INJURIES DONE TO HIM, BUT MAY NOT SEEK REDRESS FOR
INJURIES DONE TO OTHERS.  VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300
U.S. 515, 558 (1937); ERIE R. CO. V. WILLIAMS, 233 U.S. 685, 697
(1914).  WHILE THIS COURT HAS HELD THAT IN EXCEPTIONAL SITUATIONS A
CONCEDEDLY INJURED PARTY MAY RELY ON THE CONSTITUTIONAL RIGHTS OF A
THIRD PARTY IN OBTAINING RELIEF, BARROWS V. JACKSON, 346 U.S. 249
(1953), /1/  IN THIS CASE APPELLEE WAS NOT INJURED BY MOOSE LODGE'S
MEMBERSHIP POLICY SINCE HE NEVER SOUGHT TO BECOME A MEMBER. 

APPELLEE RELIES ON FLAST V. COHEN, 392 U.S. 83 (1968), AND LAW
STUDENTS RESEARCH COUNCIL V. WADMOND, 401 U.S. 154 (1971), TO SUPPORT
THE BREADTH OF THE DISTRICT COURT'S DECREE.  FLAST V. COHEN HELD THAT A
FEDERAL TAXPAYER HAD STANDING QUA TAXPAYER TO CHALLENGE THE EXPENDITURE
OF FEDERAL FUNDS AUTHORIZED BY CONGRESS UNDER THE TAXING AND SPENDING
CLAUSE OF THE CONSTITUTION.  THE COURT IN FLAST POINTED OUT: 

"IT WILL NOT BE SUFFICIENT TO ALLEGE AN INCIDENTAL EXPENDITURE OF
TAX FUNDS IN THE ADMINISTRATION OF AN ESSENTIALLY REGULATORY STATUTE. 
THIS REQUIREMENT IS CONSISTENT WITH THE LIMITATION IMPOSED UPON STATE
TAXPAYER STANDING IN FEDERAL COURTS IN DOREMUS V. BOARD OF EDUCATION,
342 U.S. 429 (1952)."  392 U.S.,AT 102. 

THE TAXPAYER'S CLAIM IN FLAST, OF COURSE, WAS THAT THE PROPOSED
EXPENDITURE VIOLATED THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT TO
THE CONSTITUTION, A CLAUSE WHICH BY ITS TERMS PROHIBITS TAXING AND
SPENDING IN AID OF RELIGION. 

THE COURT IN LAW STUDENTS RESEARCH COUNCIL V. WADMOND, SUPRA, NOTED
THAT WHILE APPELLANTS ADMITTED THAT NO PERSON INVOLVED IN THAT
LITIGATION HAD BEEN REFUSED ADMISSION TO THE NEW YORK BAR, THEY CLAIMED
THAT THE EXISTENCE OF NEW YORK'S SYSTEM OF SCREENING APPLICANTS FOR
ADMISSION TO THE BAR WORKED A CHILLING EFFECT UPON THE FREE EXERCISE OF
THE RIGHTS OF SPEECH AND ASSOCIATION OF STUDENTS WHO MUST ANTICIPATE
HAVING TO MEET ITS REQUIREMENTS.  THE COURT THEN WENT ON TO DECIDE THE
MERITS OF THE STUDENTS'  CONTENTION.  WHILE THE DOCTRINE OF
"OVERBREADTH" HAS BEEN HELD BY THIS COURT IN PRIOR DECISIONS TO ACCORD
STANDING BY REASON OF THE "CHILLING EFFECT" THAT A PARTICULAR LAW MIGHT
HAVE UPON THE EXERCISE OF THE FIRST AMENDMENT RIGHTS, THAT DOCTRINE HAS
NOT BEEN APPLIED TO CONSTITUTIONAL LITIGATION IN AREAS OTHER THAN THOSE
RELATING TO THE FIRST AMENDMENT. 

WE BELIEVE THAT MOOSE LODGE IS CORRECT, THEREFORE, IN CONTENDING
THAT THE DISTRICT COURT IN ITS DECREE WENT BEYOND THE VINDICATION OF
ANY CLAIM THAT APPELLEE HAD STANDING TO LITIGATE.  APPELLEE DID,
HOWEVER, HAVE STANDING TO LITIGATE THE CONSTITUTIONAL VALIDITY OF MOOSE
LODGE'S POLICIES RELATING TO THE SERVICE OF GUESTS OF MEMBERS.  THE
LANGUAGE OF THE DECREE, INSOFAR AS IT REFERRED TO MOOSE LODGE'S "POLICY
OF RACIAL DISCRIMINATION IN ITS MEMBERSHIP OR OPERATING POLICIES OR
PRACTICES" IS SUFFICIENTLY BROAD TO ENCOMPASS PRACTICES RELATING TO THE
SERVICE OF GUESTS OF MEMBERS, AS WELL AS POLICIES AND PRACTICES
RELATING TO THE ACCEPTANCE OF MEMBERS.  BUT MOOSE LODGE CLAIMS THAT,
BECAUSE OF THE POSITION APPELLEE TOOK ON THE MOTION TO MODIFY THE
DECREE, HE IN EFFECT DISCLAIMED ANY INTEREST IN OBTAINING RELIEF BASED
SOLELY ON THE LODGE'S PRACTICE WITH RESPECT TO SERVING THE GUESTS OF
MEMBERS. 

APPELLEE IN HIS BRIEF ON THIS POINT SAYS: 

"(MOOSE LODGE'S ARGUMENT AS TO MOOTNESS) IS BASED UPON MOOSE LODGE'S
MOTION TO MODIFY THE DECREE . . . AND SOMEHOW TO ALLOW IT TO CHANGE ITS
OPERATIONS AND TO PERMIT IRVIS TO BE BROUGHT TO THE MOOSE LODGE'S
PREMISES AS A GUEST.  BUT, AS IRVIS POINTED OUT IN HIS ANSWER TO THIS
MOTION . . . NOTHING AT ALL WOULD BE CHANGED EVEN IF THIS WERE DONE
BECAUSE THE VICE OF RACIAL DISCRIMINATION AROSE FROM THE PRIVILEGES OF
MEMBERSHIP, EITHER THOSE ACCRUING TO A PERSON IN HIS OWN ENJOYMENT OF
THEM OR THOSE ACCRUING TO A PERSON IN HIS ABILITY TO BRING A GUEST OR
GUESTS TO MOOSE LODGE.  NOTHING IN THE SUGGESTED MODIFICATION WOULD
MAKE REPETITION IMPOSSIBLE BECAUSE THE FACT THAT IRVIS WAS A GUEST WAS
PURELY HAPPENSTANCE.  WHETHER HE BE BARRED BECAUSE NO MEMBER WOULD
INVITE HIM OR BECAUSE HE HAS NO OPPORTUNITY TO BECOME A MEMBER, THE
SITUATION REMAINS UNCHANGED."  (BRIEF FOR APPELLEE 41.) 

DURING ORAL ARGUMENT OF THE CASE HERE, COUNSEL FOR APPELLEE HAS
ASKED TO EXPLAIN WHY HE OPPOSED THE MOTION TO MODIFY MADE IN THE LOWER
COURT, AND HE RESPONDED AS FOLLOWS: 

"THE MOTION TO MODIFY WHICH WOULD HAVE ALLOWED MR. IRVIS OR ANY
OTHERS TO BE ADMITTED AS A GUEST WOULD HAVE DONE NOTHING TO REMOVE THE
COMMONWEALTH OF PENNSYLVANIA FROM THE DISCRIMINATORY ACTIONS OF THE
MOOSE LODGE. 

   "THAT IS, IT STILL WOULD HAVE BEEN A MATTER OF BEING DEPENDENT

  UPON A WHITE MEMBER OF THE MOOSE LODGE TO INVITE HIM THERE.  IT

  WOULD HAVE BEEN A MATTER OF NO PARTICULAR NEGRO BEING SURE THAT

  THE MOOSE LODGE WOULD OR WOULD NOT DISCRIMINATE.  THE

  COMMONWEALTH OF PENNSYLVANIA WOULD STILL BE ISSUING THAT LICENSE

  TO A DISCRIMINATING PRIVATE CLUB.  AND I THINK IT'S WORTH NOTING

  THAT AT THE TIME THIS MOTION TO MODIFY WAS BEING PRESENTED, THE

  MOOSE LODGE WAS IN THE PROCESS OF AMENDING ITS BY-LAWS TO FORBID

  NEGROES FROM BEING GUESTS.  SO, AT THE SAME TIME THEY WERE SAYING

  LET US MODIFY THE DECREE SO THAT WE CAN ADMIT MR. IRVIS AS A

  GUEST, THEIR BY-LAWS WERE BEING AMENDED TO SAY NO NEGROES CAN

  COME IN AS GUESTS, LET ALONE MEMBERS. 

   "WE FEEL THAT THE IDEA THAT HE SHOULD THEN BE ALLOWED TO COME

  IN AS A GUEST THROUGH A MODIFICATION OF THE DECREE DOES NOT GO TO

  THE HEART OF THE PROBLEM.  IT DOES NOT SUPPLY THE TYPE OF REDRESS

  THAT WE THINK CUTS THROUGH THE PROBLEM OF STATE PARTICIPATION OR

  SUPPORT FOR THE DISCRIMINATION OF THE MOOSE LODGE, AND THAT IS

  WHY WE OPPOSE IT."  TR. OF ORAL ARG. 31-32. 

WE ARE LOATH TO ATTACH CONCLUSIVE WEIGHT TO THE RELATIVELY
SPONTANEOUS RESPONSES OF COUNSEL TO EQUALLY SPONTANEOUS QUESTIONING
FROM THE COURT DURING ORAL ARGUMENT.  HOWEVER, UPON EXAMINATION OF THIS
ANSWER IT REFLECTS SUBSTANTIALLY THE SAME POSITION AS APPELLEE TOOK IN
HIS BRIEF HERE.  WHILE IT IS POSSIBLE TO INFER FROM THESE STATEMENTS
THAT APPELLEE IS SIMPLY NOT INTERESTED IN OBTAINING ANY RELIEF AS TO
GUEST PRACTICES OF MOOSE LODGE IF HE SHOULD PREVAIL ON THE MERITS, IT
IS EQUALLY POSSIBLE TO READ THEM AS BEING TACTICAL ARGUMENTS DESIGNED
TO AVOID HAVING TO SETTLE FOR HALF A LOAF WHEN HE MIGHT OBTAIN THE
WHOLE LOAF. 

THE MERE REFUSAL BY APPELLEE TO CONSENT TO THE PROPOSED AMENDMENT OF
THE JUDGMENT BY ITSELF COULD NOT BE CONSTRUED AS A WAIVER OR DISCLAIMER
OF INJUNCTIVE RELIEF DIRECTED SOLELY TO MOOSE LODGE'S PRACTICE WITH
RESPECT TO THE SERVICE OF GUESTS.  APPELLEE'S COMPLAINT, WHILE DIRECTED
PRIMARILY AT MEMBERSHIP POLICIES OF MOOSE LODGE, CONTAINED A CUSTOMARY
PRAYER FOR OTHER RELIEF WHICH WAS BROAD ENOUGH TO EMBRACE RELIEF WITH
RESPECT TO THE PRACTICES OF THE LODGE IN SERVING GUESTS OF MEMBERS. 
THE DISTRICT COURT IN ITS DECREE USED LANGUAGE THAT WAS CLEARLY BROAD
ENOUGH TO INCLUDE SUCH PRACTICES, AS WELL AS THE MEMBERSHIP POLICIES OF
MOOSE LODGE.  HAVING THUS PRAYED FOR SUCH RELIEF IN HIS COMPLAINT, AND
HAVING OBTAINED IT FROM THE DISTRICT COURT, NOTHING LESS THAN AN
EXPLICIT RENUNCIATION OF ANY CLAIM OR DESIRE FOR SUCH RELIEF HERE WOULD
JUSTIFY OUR CONCLUDING THAT THERE WAS NO LONGER A CASE OR CONTROVERSY
WITH RESPECT TO MOOSE LODGE'S PRACTICES IN SERVING GUESTS OF MEMBERS. 
WE DO NOT BELIEVE THAT A FAIR READING OF APPELLEE'S ARGUMENT IN
OPPOSITION TO THE MOTION TO AMEND THE JUDGMENT BELOW, OR OF THE
STATEMENTS MADE IN HIS BRIEF AND ORAL ARGUMENT HERE, AMOUNT TO SUCH AN
EXPLICIT RENUNCIATION. 

BECAUSE APPELLEE HAD NO STANDING TO LITIGATE A CONSTITUTIONAL CLAIM
ARISING OUT OF MOOSE LODGE'S MEMBERSHIP PRACTICES, THE DISTRICT COURT
ERRED IN REACHING THAT ISSUE ON THE MERITS.  BUT IT DID NOT ERR IN
REACHING THE CONSTITUTIONAL CLAIM OF APPELLEE THAT MOOSE LODGE'S GUEST
SERVICE PRACTICES UNDER THESE CIRCUMSTANCES VIOLATED THE FOURTEENTH
AMENDMENT.  NOTHING IN THE POSITIONS TAKEN BY THE PARTIES SINCE THE
ENTRY OF THE DISTRICT COURT DECREE HAS MOOTED THAT CLAIM, AND WE
THEREFORE TURN TO ITS DISPOSITION. 

    II 

MOOSE LODGE IS A PRIVATE CLUB IN THE ORDINARY MEANING OF THAT TERM. 
IT IS A LOCAL CHAPTER OF A NATIONAL FRATERNAL ORGANIZATION HAVING WELL
DEFINED REQUIREMENTS FOR MEMBERSHIP.  IT CONDUCTS ALL OF ITS ACTIVITIES
IN A BUILDING THAT IS OWNED BY IT.  IT IS NOT PUBLICLY FUNDED.  ONLY
MEMBERS AND GUESTS ARE PERMITTED IN ANY LODGE OF THE ORDER; ONE MAY
BECOME A GUEST ONLY BY INVITATION OF A MEMBER OR UPON INVITATION OF THE
HOUSE COMMITTEE. 

APPELLEE, WHILE CONCEDING THE RIGHT OF PRIVATE CLUBS TO CHOOSE
MEMBERS UPON A DISCRIMINATORY BASIS, ASSERTS THAT THE LICENSING OF
MOOSE LODGE TO SERVE LIQUOR BY THE PENNSYLVANIA LIQUOR CONTROL BOARD
AMOUNTS TO SUCH STATE INVOLVEMENT WITH THE CLUB'S ACTIVITIES AS TO MAKE
ITS DISCRIMINATORY PRACTICES FORBIDDEN BY THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT.  THE RELIEF SOUGHT AND OBTAINED BY
APPELLEE IN THE DISTRICT COURT WAS AN INJUNCTION FORBIDDING THE
LICENSING BY THE LIQUOR AUTHORITY OF MOOSE LODGE UNTIL IT CEASED ITS
DISCRIMINATORY PRACTICES.  WE CONCLUDE THAT MOOSE LODGE'S REFUSAL TO
SERVE FOOD AND BEVERAGES TO A GUEST BY REASON OF THE FACT THAT HE WAS A
NEGRO DOES NOT, UNDER THE CIRCUMSTANCES HERE PRESENTED, VIOLATE THE
FOURTEENTH AMENDMENT. 

IN 1883, THIS COURT IN THE CIVIL RIGHTS CASES, 109 U.S. 3, SET FORTH
THE ESSENTIAL DICHOTOMY BETWEEN DISCRIMINATORY ACTION BY THE STATE,
WHICH IS PROHIBITED BY THE EQUAL PROTECTION CLAUSE, AND PRIVATE
CONDUCT, "HOWEVER DISCRIMINATORY OR WRONGFUL," AGAINST WHICH THAT
CLAUSE "ERECTS NO SHIELD," SHELLEY V. KRAEMER, 334 U.S. 1, 13 (1948). 
THAT DICHOTOMY HAS BEEN SUBSEQUENTLY REAFFIRMED IN SHELLEY V. KRAEMER,
SUPRA, AND IN BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715
(1961).     WHILE THE PRINCIPLE IS EASILY STATED, THE QUESTION OF
WHETHER PARTICULAR DISCRIMINATORY CONDUCT IS PRIVATE, ON THE ONE HAND,
OR AMOUNTS TO "STATE ACTION," ON THE OTHER HAND, FREQUENTLY ADMITS OF
NO EASY ANSWER.  "ONLY BY SIFTING FACTS AND WEIGHING CIRCUMSTANCES CAN
THE NON-OBVIOUS INVOLVEMENT OF THE STATE IN PRIVATE CONDUCT BE
ATTRIBUTED ITS TRUE SIGNIFICANCE."  BURTON V. WILMINGTON PARKING
AUTHORITY, SUPRA, AT 722. 

OUR CASES MAKE CLEAR THAT THE IMPETUS FOR THE FORBIDDEN
DISCRIMINATION NEED NOT ORIGINATE WITH THE STATE IF IT IS STATE ACTION
THAT ENFORCES PRIVATELY ORIGINATED DISCRIMINATION.  SHELLEY V. KRAEMER,
SUPRA.  THE COURT HELD IN BURTON V. WILMINGTON PARKING AUTHORITY,
SUPRA, THAT A PRIVATE RESTAURANT OWNER WHO REFUSED SERVICE BECAUSE OF A
CUSTOMER'S RACE VIOLATED THE FOURTEENTH AMENDMENT, WHERE THE RESTAURANT
WAS LOCATED IN A BUILDING OWNED BY A STATE-CREATED PARKING AUTHORITY
AND LEASED FROM THE AUTHORITY.  THE COURT, AFTER A COMPREHENSIVE REVIEW
OF THE RELATIONSHIP BETWEEN THE LESSEE AND THE PARKING AUTHORITY
CONCLUDED THAT THE LATTER HAD "SO FAR INSINUATED ITSELF INTO A POSITION
OF INTERDEPENDENCE WITH EAGLE (THE RESTAURANT OWNER) THAT IT MUST BE
RECOGNIZED AS A JOINT PARTICIPANT IN THE CHALLENGED ACTIVITY, WHICH, ON
THAT ACCOUNT, CANNOT BE CONSIDERED TO HAVE BEEN SO 'PURELY PRIVATE' AS
TO FALL WITHOUT THE SCOPE OF THE FOURTEENTH AMENDMENT."  365 U.S.,AT
725. 

THE COURT HAS NEVER HELD, OF COURSE, THAT DISCRIMINATION BY AN
OTHERWISE PRIVATE ENTITY WOULD BE VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE IF THE PRIVATE ENTITY RECEIVES ANY SORT OF BENEFIT OR SERVICE AT
ALL FROM THE STATE, OR IF IT IS SUBJECT TO STATE REGULATION IN ANY
DEGREE WHATEVER.  SINCE STATE-FURNISHED SERVICES INCLUDE SUCH
NECESSITIES OF LIFE AS ELECTRICITY, WATER, AND POLICE AND FIRE
PROTECTION, SUCH A HOLDING WOULD UTTERLY EMASCULATE THE DISTINCTION
BETWEEN PRIVATE AS DISTINGUISHED FROM STATE CONDUCT SET FORTH IN THE
CIVIL RIGHTS CASES, SUPRA, AND ADHERED TO IN SUBSEQUENT DECISIONS.  OUR
HOLDINGS INDICATE THAT WHERE THE IMPETUS FOR THE DISCRIMINATION IS
PRIVATE, THE STATE MUST HAVE "SIGNIFICANTLY INVOLVED ITSELF WITH
INVIDIOUS DISCRIMINATIONS," REITMAN V. MULKEY, 387 U.S. 369, 380
(1967), IN ORDER FOR THE DISCRIMINATORY ACTION TO FALL WITHIN THE AMBIT
OF THE CONSTITUTIONAL PROHIBITION. 

OUR PRIOR DECISIONS DEALING WITH DISCRIMINATORY REFUSAL OF SERVICE
IN PUBLIC EATING PLACES ARE SIGNIFICANTLY DIFFERENT FACTUALLY FROM THE
CASE NOW BEFORE US.  PETERSON V. CITY OF GREENVILLE, 373 U.S. 244
(1963), DEALT WITH THE TRESPASS PROSECUTION OF PERSONS WHO "SAT IN" AT
A RESTAURANT TO PROTEST ITS REFUSAL OF SERVICE TO NEGROES.  THERE THE
COURT HELD THAT ALTHOUGH THE OSTENSIBLE INITIATIVE FOR THE TRESPASS
PROSECUTION CAME FROM THE PROPRIETOR, THE EXISTENCE OF A LOCAL
ORDINANCE REQUIRING SEGREGATION OF RACES IN SUCH PLACES WAS TANTAMOUNT
TO THE STATE HAVING "COMMANDED A PARTICULAR RESULT,"  373 U.S.,AT 248. 
WITH ONE EXCEPTION, WHICH IS DISCUSSED INFRA, AT 178-179, THERE IS NO
SUGGESTION IN THIS RECORD THAT THE PENNSYLVANIA STATUTES AND
REGULATIONS GOVERNING THE SALE OF LIQUOR ARE INTENDED EITHER OVERTLY OR
COVERTLY TO ENCOURAGE DISCRIMINATION. 

IN BURTON, SUPRA, THE COURT'S FULL DISCUSSION OF THE FACTS IN ITS
OPINION INDICATES THE SIGNIFICANT DIFFERENCES BETWEEN THAT CASE AND
THIS: 

     "THE LAND AND BUILDING WERE PUBLICLY OWNED.  AS AN ENTITY, THE

BUILDING WAS DEDICATED TO 'PUBLIC USES' IN PERFORMANCE OF THE

  AUTHORITY'S 'ESSENTIAL GOVERNMENTAL FUNCTIONS.'  (CITATION

  OMITTED.)  THE COSTS OF LAND ACQUISITION, CONSTRUCTION, AND

  MAINTENANCE ARE DEFRAYED ENTIRELY FROM DONATIONS BY THE CITY OF

  WILMINGTON, FROM LOANS AND REVENUE BONDS AND FROM THE PROCEEDS OF

  RENTALS AND PARKING SERVICES OUT OF WHICH THE LOANS AND BONDS

  WERE PAYABLE.  ASSUMING THAT THE DISTINCTION WOULD BE

  SIGNIFICANT, (CITATION OMITTED) THE COMMERCIALLY LEASED AREAS

  WERE NOT SURPLUS STATE PROPERTY, BUT CONSTITUTED A PHYSICALLY AND

  FINANCIALLY INTEGRAL AND, INDEED, INDISPENSABLE PART OF THE

  STATE'S PLAN TO OPERATE ITS PROJECT AS A SELF-SUSTAINING UNIT. 

UPKEEP AND MAINTENANCE OF THE BUILDING, INCLUDING NECESSARY

  REPAIRS, WERE RESPONSIBILITIES OF THE AUTHORITY AND WERE PAYABLE

  OUT OF PUBLIC FUNDS.  IT CANNOT BE DOUBTED THAT THE PECULIAR

  RELATIONSHIP OF THE RESTAURANT TO THE PARKING FACILITY IN WHICH

  IT IS LOCATED CONFERS ON EACH AN INCIDENTAL VARIETY OF MUTUAL

  BENEFITS.  GUESTS OF THE RESTAURANT ARE AFFORDED A CONVENIENT

  PLACE TO PARK THEIR AUTOMOBILES, EVEN IF THEY CANNOT ENTER THE

  RESTAURANT DIRECTLY FROM THE PARKING AREA.  SIMILARLY, ITS

  CONVENIENCE FOR DINERS MAY WELL PROVIDE ADDITIONAL DEMAND FOR THE

  AUTHORITY'S PARKING FACILITIES.  SHOULD ANY IMPROVEMENTS EFFECTED

  IN THE LEASEHOLD BY EAGLE BECOME PART OF THE REALTY, THERE IS NO

  POSSIBILITY OF INCREASED TAXES BEING PASSED ON TO IT SINCE THE

  FEE IS HELD BY A TAX-EXEMPT GOVERNMENT AGENCY.  NEITHER CAN IT BE

  IGNORED, ESPECIALLY IN VIEW OF EAGLE'S AFFIRMATIVE ALLEGATION

  THAT FOR IT TO SERVE NEGROES WOULD INJURE ITS BUSINESS, THAT

  PROFITS EARNED BY DISCRIMINATION NOT ONLY CONTRIBUTE TO, BUT ALSO

  ARE INDISPENSABLE ELEMENTS IN, THE FINANCIAL SUCCESS OF A

  GOVERNMENTAL AGENCY."  365 U.S.,AT 723-724. 

HERE THERE IS NOTHING APPROACHING THE SYMBIOTIC RELATIONSHIP BETWEEN
LESSOR AND LESSEE THAT WAS PRESENT IN BURTON, WHERE THE PRIVATE LESSEE
OBTAINED THE BENEFIT OF LOCATING IN A BUILDING OWNED BY THE STATE
CREATED PARKING AUTHORITY, AND THE PARKING AUTHORITY WAS ENABLED TO
CARRY OUT ITS PRIMARY PUBLIC PURPOSE OF FURNISHING PARKING SPACE BY
ADVANTAGEOUSLY LEASING PORTIONS OF THE BUILDING CONSTRUCTED FOR THAT
PURPOSE TO COMMERCIAL LESSEES SUCH AS THE OWNER OF THE EAGLE
RESTAURANT.  UNLIKE BURTON, THE MOOSE LODGE BUILDING IS LOCATED ON LAND
OWNED BY IT, NOT BY ANY PUBLIC AUTHORITY.  FAR FROM APPARENTLY HOLDING
ITSELF OUT AS A PLACE OF PUBLIC ACCOMMODATION, MOOSE LODGE QUITE
OSTENTATIOUSLY PROCLAIMS THE FACT THAT IT IS NOT OPEN TO THE PUBLIC AT
LARGE.  /2/  NOR IS IT LOCATED AND OPERATED IN SUCH SURROUNDINGS THAT
ALTHOUGH PRIVATE IN NAME, IT DISCHARGES A FUNCTION OR PERFORMS A
SERVICE THAT WOULD OTHERWISE IN ALL LIKELIHOOD BE PERFORMED BY THE
STATE.  IN SHORT, WHILE EAGLE WAS A PUBLIC RESTAURANT IN A PUBLIC
BUILDING, MOOSE LODGE IS A PRIVATE SOCIAL CLUB IN A PRIVATE BUILDING. 

WITH THE EXCEPTION HEREAFTER NOTED, THE PENNSYLVANIA LIQUOR CONTROL
BOARD PLAYS ABSOLUTELY NO PART IN ESTABLISHING OR ENFORCING THE
MEMBERSHIP OR GUEST POLICIES OF THE CLUB THAT IT LICENSES TO SERVE
LIQUOR.  /3/  THERE IS NO SUGGESTION IN THIS RECORD THAT PENNSYLVANIA
LAW, EITHER AS WRITTEN OR AS APPLIED, DISCRIMINATES AGAINST MINORITY
GROUPS EITHER IN THEIR RIGHT TO APPLY FOR CLUB LICENSES THEMSELVES OR
IN THEIR RIGHT TO PURCHASE AND BE SERVED LIQUOR IN PLACES OF PUBLIC
ACCOMMODATION.  THE ONLY EFFECT THAT THE STATE LICENSING OF MOOSE LODGE
TO SERVE LIQUOR CAN BE SAID TO HAVE ON THE RIGHT OF ANY OTHER
PENNSYLVANIAN TO BUY OR BE SERVED LIQUOR ON PREMISES OTHER THAN THOSE
OF MOOSE LODGE IS THAT FOR SOME PURPOSES CLUB LICENSES ARE COUNTED IN
THE MAXIMUM NUMBER OF LICENSES THAT MAY BE ISSUED IN A GIVEN
MUNICIPALITY.  BASICALLY EACH MUNICIPALITY HAS A QUOTA OF ONE RETAIL
LICENSE FOR EACH 1,500 INHABITANTS.  LICENSES ISSUED TO HOTELS,
MUNICIPAL GOLF COURSES, AND AIRPORT RESTAURANTS ARE NOT COUNTED IN THIS
QUOTA, NOR ARE CLUB LICENSES UNTIL THE MAXIMUM NUMBER OF RETAIL
LICENSES IS REACHED.  BEYOND THAT POINT, NEITHER ADDITIONAL RETAIL
LICENSES NOR ADDITIONAL CLUB LICENSES MAY BE ISSUED SO LONG AS THE
NUMBER OF ISSUED AND OUTSTANDING RETAIL LICENSES REMAINS AT OR ABOVE
THE STATUTORY MAXIMUM. 

THE DISTRICT COURT WAS AT PAINS TO POINT OUT IN ITS OPINION WHAT IT
CONSIDERED TO BE THE "PERVASIVE" NATURE OF THE REGULATION OF PRIVATE
CLUBS BY THE PENNSYLVANIA LIQUOR CONTROL BOARD.  AS THAT COURT NOTED,
AN APPLICANT FOR A CLUB LICENSE MUST MAKE SUCH PHYSICAL ALTERATIONS IN
ITS PREMISES AS THE BOARD MAY REQUIRE, MUST FILE A LIST OF THE NAMES
AND ADDRESSES OF ITS MEMBERS AND EMPLOYEES, AND MUST KEEP EXTENSIVE
FINANCIAL RECORDS.  THE BOARD IS GRANTED THE RIGHT TO INSPECT THE
LICENSED PREMISES AT ANY TIME WHEN PATRONS, GUESTS, OR MEMBERS ARE
PRESENT. 

HOWEVER DETAILED THIS TYPE OF REGULATION MAY BE IN SOME PARTICULARS,
IT CANNOT BE SAID TO IN ANY WAY FOSTER OR ENCOURAGE RACIAL
DISCRIMINATION.  NOR CAN IT BE SAID TO MAKE THE STATE IN ANY REALISTIC
SENSE A PARTNER OR EVEN A JOINT VENTURER IN THE CLUB'S ENTERPRISE.  THE
LIMITED EFFECT OF THE PROHIBITION AGAINST OBTAINING ADDITIONAL CLUB
LICENSES WHEN THE MAXIMUM NUMBER OF RETAIL LICENSES ALLOTTED TO A
MUNICIPALITY HAS BEEN ISSUED, WHEN CONSIDERED TOGETHER WITH THE
AVAILABILITY OF LIQUOR FROM HOTEL, RESTAURANT, AND RETAIL LICENSEES,
FALLS FAR SHORT OF CONFERRING UPON CLUB LICENSEES A MONOPOLY IN THE
DISPENSING OF LIQUOR IN ANY GIVEN MUNICIPALITY OR IN THE STATE AS A
WHOLE.  WE THEREFORE HOLD THAT, WITH THE EXCEPTION HEREAFTER NOTED, THE
OPERATION OF THE REGULATORY SCHEME ENFORCED BY THE PENNSYLVANIA LIQUOR
CONTROL BOARD DOES NOT SUFFICIENTLY IMPLICATE THE STATE IN THE
DISCRIMINATORY GUEST POLICIES OF MOOSE LODGE TO MAKE THE LATTER "STATE
ACTION" WITHIN THE AMBIT OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT. 

THE DISTRICT COURT FOUND THAT THE REGULATIONS OF THE LIQUOR CONTROL
BOARD ADOPTED PURSUANT TO STATUTE AFFIRMATIVELY REQUIRE THAT "(EVERY
CLUB LICENSEE SHALL ADHERE TO ALL OF THE PROVISIONS OF ITS CONSTITUTION
AND BY-LAWS."  /4/  APPELLANT ARGUES THAT THE PURPOSE OF THIS PROVISION
"IS PURELY AND SIMPLY AND PLAINLY THE PREVENTION OF SUBTERFUGE,"
POINTING OUT THAT THE BONA FIDES OF A PRIVATE CLUB, AS OPPOSED TO A
PLACE OF PUBLIC ACCOMMODATION MASQUERADING AS A PRIVATE CLUB, IS A
MATTER WITH WHICH THE STATE LIQUOR CONTROL BOARD MAY LEGITIMATELY
CONCERN ITSELF.  APPELLEE CONCEDES THIS TO BE THE CASE, AND EXPRESSES
DISAGREEMENT WITH THE DISTRICT COURT ON THIS POINT.  THERE CAN BE NO
DOUBT THAT THE LABEL "PRIVATE CLUB" CAN BE AND HAS BEEN USED TO EVADE
BOTH REGULATIONS OF STATE AND LOCAL LIQUOR AUTHORITIES, AND STATUTES
REQUIRING PLACES OF PUBLIC ACCOMMODATION TO SERVE ALL PERSONS WITHOUT
REGARD TO RACE, COLOR, RELIGION, OR NATIONAL ORIGIN.  THIS COURT IN
DANIEL V. PAUL, 395 U.S. 298 (1969), HAD OCCASION TO ADDRESS THIS ISSUE
IN CONNECTION WITH THE APPLICATION OF TITLE II OF THE CIVIL RIGHTS ACT
OF 1964, 78 STAT. 243, 42 U.S.C. 2000A ET SEQ. 

THE EFFECT OF THIS PARTICULAR REGULATION ON MOOSE LODGE UNDER THE
PROVISIONS OF THE CONSTITUTION PLACED IN THE RECORD IN THE COURT BELOW
WOULD BE TO PLACE STATE SANCTIONS BEHIND ITS DISCRIMINATORY MEMBERSHIP
RULES, BUT NOT BEHIND ITS GUEST PRACTICES, WHICH WERE NOT EMBODIED IN
THE CONSTITUTION OF THE LODGE.  HAD THERE BEEN NO CHANGE IN THE
RELEVANT CIRCUMSTANCES SINCE THE MAKING OF THE RECORD IN THE DISTRICT
COURT, OUR HOLDING IN PART I OF THIS OPINION THAT APPELLEE HAS STANDING
TO CHALLENGE ONLY THE GUEST PRACTICES OF MOOSE LODGE WOULD HAVE A
BEARING ON OUR DISPOSITION OF THIS ISSUE.  APPELLEE STATED UPON ORAL
ARGUMENT, THOUGH, AND MOOSE LODGE CONCEDED IN ITS BRIEF /5/  THAT THE
BYLAWS OF THE SUPREME LODGE HAVE BEEN ALTERED SINCE THE LOWER COURT
DECISION TO MAKE APPLICABLE TO GUESTS THE SAME SORT OF RACIAL
RESTRICTIONS AS ARE PRESENTLY APPLICABLE TO MEMBERS.  /6/ 

EVEN THOUGH THE LIQUOR CONTROL BOARD REGULATION IN QUESTION IS
NEUTRAL IN ITS TERMS, THE RESULT OF ITS APPLICATION IN A CASE WHERE THE
CONSTITUTION AND BYLAWS OF A CLUB REQUIRED RACIAL DISCRIMINATION WOULD
BE TO INVOKE THE SANCTIONS OF THE STATE TO ENFORCE A CONCEDEDLY
DISCRIMINATORY PRIVATE RULE.  STATE ACTION, FOR PURPOSES OF THE EQUAL
PROTECTION CLAUSE, MAY EMANATE FROM RULINGS OF ADMINISTRATIVE AND
REGULATORY AGENCIES AS WELL AS FROM LEGISLATIVE OR JUDICIAL ACTION. 
ROBINSON V. FLORIDA, 378 U.S. 153, 156 (1964).  SHELLEY V. KRAEMER, 334
U.S. 1 (1948), MAKES IT CLEAR THAT THE APPLICATION OF STATE SANCTIONS
TO ENFORCE SUCH A RULE WOULD VIOLATE THE FOURTEENTH AMENDMENT. 
ALTHOUGH THE RECORD BEFORE US IS NOT AS CLEAR AS ONE WOULD LIKE,
APPELLANT HAS NOT PERSUADED US THAT THE DISTRICT COURT SHOULD HAVE
DENIED ANY AND ALL RELIEF. 

APPELLEE WAS ENTITLED TO A DECREE ENJOINING THE ENFORCEMENT OF SEC.
113.09 OF THE REGULATIONS PROMULGATED BY THE PENNSYLVANIA LIQUOR
CONTROL BOARD INSOFAR AS THAT REGULATION REQUIRES COMPLIANCE BY MOOSE
LODGE WITH PROVISIONS OF ITS CONSTITUTION AND BYLAWS CONTAINING
RACIALLY DISCRIMINATORY PROVISIONS.  HE WAS ENTITLED TO NO MORE.  THE
JUDGMENT OF THE DISTRICT COURT IS REVERSED, AND THE CAUSE REMANDED WITH
INSTRUCTIONS TO ENTER A DECREE IN CONFORMITY WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  OUR RECENT OPINION IN SIERRA CLUB V. MORTON, 405 U.S. 727,
REFERRED TO A SIMILAR RELATIONSHIP BETWEEN THE STANDING OF THE
PLAINTIFF AND THE ARGUMENT OF WHICH HE MIGHT AVAIL HIMSELF WHERE
JUDICIAL REVIEW OF AGENCY ACTION IS SOUGHT.  ID., AT 737. 

/2/  THE PENNSYLVANIA COURTS HAVE FOUND THAT LOCAL 107 IS NOT A
"PLACE OF PUBLIC ACCOMMODATION" WITHIN THE TERMS OF THE PENNSYLVANIA
HUMAN RELATIONS ACT, PA. STAT. ANN., TIT. 43, SEC. 951 ET SEQ. (1964). 
PENNSYLVANIA HUMAN RELATIONS COMM'N V. THE LOYAL ORDER OF MOOSE, LODGE
NO. 107, CT. COMMON PLEAS, DAUPHIN COUNTY, AFF'D, 220 PA.SUPER.  356,
286 A.2D 374 (1971). 

/3/  UNLIKE THE SITUATION IN PUBLIC UTILITIES COMM'N V. POLLAK, 343
U.S. 451 (1952), WHERE THE REGULATORY AGENCY HAD AFFIRMATIVELY APPROVED
THE PRACTICE OF THE REGULATED ENTITY AFTER FULL INVESTIGATION, THE
PENNSYLVANIA LIQUOR CONTROL BOARD HAS NEITHER APPROVED NOR ENDORSED THE
RACIALLY DISCRIMINATORY PRACTICES OF MOOSE LODGE.     /4/  REGULATIONS
OF THE PENNSYLVANIA LIQUOR CONTROL BOARD SEC. 113.09 (JUNE 1970 ED.). 

/5/  BRIEF FOR APPELLANT 10. 

/6/  SECTION 92.1 OF THE GENERAL LAWS OF THE LOYAL ORDER OF MOOSE
PRESENTLY PROVIDES IN RELEVANT PART AS FOLLOWS: "SEC.  92.1-- TO
PREVENT ADMISSION OF NON MEMBERS-- THERE SHALL NEVER AT ANY TIME BE
ADMITTED TO ANY SOCIAL CLUB OR HOME MAINTAINED OR OPERATED BY ANY
LODGE, ANY PERSON WHO IS NOT A MEMBER OF SOME LODGE IN GOOD STANDING. 
THE HOUSE COMMITTEE MAY GRANT GUEST PRIVILEGES TO PERSONS WHO ARE
ELIGIBLE FOR MEMBERSHIP IN THE FRATERNITY CONSISTENT WITH GOVERNMENTAL
LAWS AND REGULATIONS.  A MEMBER SHALL ACCOMPANY SUCH GUEST AND SHALL BE
RESPONSIBLE FOR THE ACTIONS OF SAID GUEST, AND UPON THE MEMBER LEAVING,
THE GUEST MUST ALSO LEAVE.  IT IS THE DUTY OF EACH MEMBER OF THE ORDER
WHEN SO REQUESTED TO SUBMIT FOR INSPECTION HIS RECEIPT FOR DUES TO ANY
MEMBER OF ANY HOUSE COMMITTEE OR ITS AUTHORIZED EMPLOYEE." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

MY VIEW OF THE FIRST AMENDMENT AND THE RELATED GUARANTEES OF THE
BILL OF RIGHTS IS THAT THEY CREATE A ZONE OF PRIVACY WHICH PRECLUDES
GOVERNMENT FROM INTERFERING WITH PRIVATE CLUBS OR GROUPS.  /1/  THE
ASSOCIATIONAL RIGHTS WHICH OUR SYSTEM HONORS PERMIT ALL WHITE, ALL
BLACK, ALL BROWN, AND ALL YELLOW CLUBS TO BE FORMED.  THEY ALSO PERMIT
ALL CATHOLIC, ALL JEWISH, OR ALL AGNOSTIC CLUBS TO BE ESTABLISHED. 
GOVERNMENT MAY NOT TELL A MAN OR WOMAN WHO HIS OR HER ASSOCIATES MUST
BE.  THE INDIVIDUAL CAN BE AS SELECTIVE AS HE DESIRES.  SO THE FACT
THAT THE MOOSE LODGE ALLOWS ONLY CAUCASIANS TO JOIN.OR COME AS GUESTS
IS CONSTITUTIONALLY IRRELEVANT, AS IS THE DECISION OF THE BLACK MUSLIMS
TO ADMIT TO THEIR SERVICES ONLY MEMBERS OF THEIR RACE. 

THE PROBLEM IS DIFFERENT, HOWEVER, WHERE THE PUBLIC DOMAIN IS
CONCERNED.  I HAVE INDICATED IN GARNER V. LOUISIANA, 368 U.S. 157, AND
LOMBARD V. LOUISIANA, 373 U.S. 267, THAT WHERE RESTAURANTS OR OTHER
FACILITIES SERVING THE PUBLIC ARE CONCERNED AND LICENSES ARE OBTAINED
FROM THE STATE FOR OPERATING THE BUSINESS, THE "PUBLIC" MAY NOT BE
DEFINED BY THE PROPRIETOR TO INCLUDE ONLY PEOPLE OF HIS CHOICE; NOR MAY
A STATE OR MUNICIPAL SERVICE BE GRANTED ONLY TO SOME.  EVANS V. NEWTON,
382 U.S. 296, 298-299. 

THOSE CASES ARE NOT PRECISELY APPOSITE, HOWEVER, FOR A PRIVATE CLUB,
BY DEFINITION, IS NOT IN THE PUBLIC DOMAIN.  AND THE FACT THAT A
PRIVATE CLUB GETS SOME KIND OF PERMIT FROM THE STATE OR MUNICIPALITY
DOES NOT MAKE IT IPSO FACTO A PUBLIC ENTERPRISE OR UNDERTAKING, ANY
MORE THAN THE GRANT TO A HOUSEHOLDER OF A PERMIT TO OPERATE AN
INCINERATOR PUTS THE HOUSEHOLDER IN THE PUBLIC DOMAIN.  WE MUST,
THEREFORE, EXAMINE WHETHER THERE ARE SPECIAL CIRCUMSTANCES INVOLVED IN
THE PENNSYLVANIA SCHEME WHICH DIFFERENTIATE THE LIQUOR LICENSE
POSSESSED BY MOOSE LODGE FROM THE INCINERATOR PERMIT. 

PENNSYLVANIA HAS A STATE STORE SYSTEM OF ALCOHOL DISTRIBUTION. 
RESALE IS PERMITTED BY HOTELS, RESTAURANTS, AND PRIVATE CLUBS WHICH ALL
MUST OBTAIN LICENSES FROM THE LIQUOR CONTROL BOARD.  THE SCHEME OF
REGULATION IS COMPLETE AND PERVASIVE; AND THE STATE COURTS HAVE
SUSTAINED MANY RESTRICTIONS ON THE LICENSEES.  SEE TAHITI BAR INC.
LIQUOR LICENSE CASE, 395 PA. 355, 150 A.2D 112.  ONCE A LICENSE IS
ISSUED THE LICENSEE MUST COMPLY WITH MANY DETAILED REQUIREMENTS OR RISK
SUSPENSION OR REVOCATION OF THE LICENSE.  AMONG THESE REQUIREMENTS IS
REGULATION SEC. 113.09 WHICH SAYS:  "EVERY CLUB LICENSEE SHALL ADHERE
TO ALL OF THE PROVISIONS OF ITS CONSTITUTION AND BY-LAWS."  THIS
REGULATION MEANS, AS APPLIED TO MOOSE LODGE, THAT IT MUST ADHERE TO THE
RACIALLY DISCRIMINATORY PROVISION OF THE CONSTITUTION OF ITS SUPREME
LODGE THAT "(THE MEMBERSHIP OF LODGES SHALL BE COMPOSED OF MALE PERSONS
OF THE CAUCASIAN OR WHITE RACE ABOVE THE AGE OF TWENTY-ONE YEARS, AND
NOT MARRIED TO SOMEONE OF ANY OTHER THAN THE CAUCASIAN OR WHITE RACE,
WHO ARE OF GOOD MORAL CHARACTER, PHYSICALLY AND MENTALLY NORMAL, WHO
SHALL PROFESS A BELIEF IN A SUPREME BEING." 

IT IS ARGUED THAT THIS REGULATION ONLY AIMS AT THE PREVENTION OF
SUBTERFUGE AND AT ENFORCING PENNSYLVANIA'S DIFFERENTIATION BETWEEN
PLACES OF PUBLIC ACCOMMODATION AND BONA FIDE PRIVATE CLUBS.  IT IS ALSO
ARGUED THAT THE REGULATION ONLY GIVES EFFECT TO THE CONSTITUTIONALLY
PROTECTED RIGHTS OF PRIVACY AND OF ASSOCIATION.  BUT I CANNOT SO READ
THE REGULATION.  WHILE THOSE OTHER PURPOSES ARE EMBRACED IN IT, SO IS
THE RESTRICTIVE MEMBERSHIP CLAUSE.  AND WE HAVE HELD THAT "A STATE IS
RESPONSIBLE FOR THE DISCRIMINATORY ACT OF A PRIVATE PARTY WHEN THE
STATE, BY ITS LAW, HAS COMPELLED THE ACT."  ADICKES V. KRESS & CO., 398
U.S. 144, 170.  SEE PETERSON V. CITY OF GREENVILLE, 373 U.S. 244, 248. 
IT IS IRRELEVANT WHETHER THE LAW IS STATUTORY, OR AN ADMINISTRATIVE
REGULATION.  ROBINSON V. FLORIDA, 378 U.S. 153, 156.  AND IT IS
IRRELEVANT WHETHER THE DISCRIMINATORY ACT WAS INSTIGATED BY THE
REGULATION, OR WAS INDEPENDENT OF IT.  PETERSON V. CITY OF GREENVILLE,
SUPRA. THE RESULT, AS I SEE IT, IS THE SAME AS THOUGH PENNSYLVANIA HAD
PUT INTO ITS LIQUOR LICENSES A PROVISION THAT THE LICENSE MAY NOT BE
USED TO DISPENSE LIQUOR TO BLACKS, BROWNS, YELLOWS-- OR ATHEISTS OR
AGNOSTICS.  REGULATION SEC. 113.09 IS THUS AN INVIDIOUS FORM OF STATE
ACTION. 

WERE THIS REGULATION THE ONLY INFIRMITY IN PENNSYLVANIA'S LICENSING
SCHEME, I WOULD PERHPAS AGREE WITH THE MAJORITY THAT THE APPROPRIATE
RELIEF WOULD BE A DECREE ENJOINING ITS ENFORCEMENT.  BUT THERE IS
ANOTHER FLAW IN THE SCHEME NOT SO EASILY CURED.  LIQUOR LICENSES IN
PENNSYLVANIA, UNLIKE DRIVER'S LICENSES, OR MARRIAGE LICENSES, ARE NOT
FREELY AVAILABLE TO THOSE WHO MEET RACIALLY NEUTRAL QUALIFICATIONS. 
THERE IS A COMPLEX QUOTA SYSTEM, WHICH THE MAJORITY ACCURATELY
DESCRIBES.  ANTE, AT 176.  WHAT THE MAJORITY NEGLECTS TO SAY IS THAT
THE QUOTA FOR HARRISBURG, WHERE MOOSE LODGE NO. 107 IS LOCATED, HAS
BEEN FULL FOR MANY YEARS.  /2/  NO MORE CLUB LICENSES MAY BE ISSUED IN
THAT CITY. 

THIS STATE-ENFORCED SCARCITY OF LICENSES RESTRICTS THE ABILITY OF
BLACKS TO OBTAIN LIQUOR, FOR LIQUOR IS COMMERCIALLY AVAILABLE ONLY AT
PRIVATE CLUBS FOR A SIGNIFICANT PORTION OF EACH WEEK.  /3/  ACCESS BY
BLACKS TO PLACES THAT SERVE LIQUOR IS FURTHER LIMITED BY THE FACT THAT
THE STATE QUOTA IS FILLED.  A GROUP DESIRING TO FORM A
NONDISCRIMINATORY CLUB WHICH WOULD SERVE BLACKS MUST PURCHASE A LICENSE
HELD BY AN EXISTING CLUB, WHICH CAN EXACT A MONOPOLY PRICE FOR THE
TRANSFER.  THE AVAILABILITY OF SUCH A LICENSE IS SPECULATIVE AT BEST,
HOWEVER, FOR, AS MOOSE LODGE ITSELF CONCEDES, WITHOUT A LIQUOR LICENSE
A FRATERNAL ORGANIZATION WOULD BE HARD PRESSED TO SURVIVE. 

THUS, THE STATE OF PENNSYLVANIA IS PUTTING THE WEIGHT OF ITS LIQUOR
LICENSE, CONCEDEDLY A VALUED AND IMPORTANT ADJUNCT TO A PRIVATE CLUB,
BEHIND RACIAL DISCRIMINATION. 

AS THE FIRST JUSTICE HARLAN, DISSENTING IN THE CIVIL RIGHTS CASES,
109 U.S. 3, 59, SAID: 

"I AGREE THAT GOVERNMENT HAS NOTHING TO DO WITH SOCIAL, AS
DISTINGUISHED FROM TECHNICALLY LEGAL, RIGHTS OF INDIVIDUALS.  NO
GOVERNMENT EVER HAS BROUGHT, OR EVER CAN BRING, ITS PEOPLE INTO SOCIAL
INTERCOURSE AGAINST THEIR WISHES.  WHETHER ONE PERSON WILL PERMIT OR
MAINTAIN SOCIAL RELATIONS WITH ANOTHER IS A MATTER WITH WHICH
GOVERNMENT HAS NO CONCERN.  . . . WHAT I AFFIRM IS THAT NO STATE NOR
THE OFFICERS OF ANY STATE, NOR ANY CORPORATION OR INDIVIDUAL WIELDING
POWER UNDER STATE AUTHORITY FOR THE PUBLIC BENEFIT OR THE PUBLIC
CONVENIENCE, CAN, CONSISTENTLY . . . WITH THE FREEDOM ESTABLISHED BY
THE FUNDAMENTAL LAW . . . DISCRIMINATE AGAINST FREEMEN OR CITIZENS, IN
THOSE RIGHTS, BECAUSE OF THEIR RACE.  . . . " 

THE REGULATION GOVERNING THIS LIQUOR LICENSE HAS IN IT THAT PRECISE
INFIRMITY.  /4/ 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  IT HAS BEEN STIPULATED THAT MOOSE LODGE NO. 107 "IS, IN ALL
RESPECTS, PRIVATE IN NATURE AND DOES NOT APPEAR TO HAVE ANY PUBLIC
CHARACTERISTICS."  APP. 23.  THE CAUSE BELOW WAS TRIED SOLELY ON THE
THEORY THAT GRANTING A PENNSYLVANIA LIQUOR LICENSE TO A CLUB ASSUMED TO
BE PURELY PRIVATE WAS SUFFICIENT STATE INVOLVEMENT TO TRIGGER THE EQUAL
PROTECTION CLAUSE.  THERE WAS NO OCCASION TO CONSIDER THE QUESTION
WHETHER, PERHAPS BECAUSE OF A ROLE AS A CENTER OF COMMUNITY ACTIVITY,
MOOSE LODGE NO. 107 WAS IN FACT "PRIVATE" FOR EQUAL PROTECTION
PURPOSES.  THE DECISION TODAY, THEREFORE, LEAVES THIS QUESTION OPEN. 
SEE COMMENT, CURRENT DEVELOPMENTS IN STATE ACTION AND EQUAL PROTECTION
OF THE LAW, 4 GONZAGA L.REV.  233, 271-286. 

/2/  INDEED, THE QUOTA IS MORE THAN FULL, AS A RESULT OF A
GRANDFATHER CLAUSE IN THE LAW LIMITING LICENSES TO ONE PER 1,500
INHABITANTS.  ACT NO. 702 OF DEC. 17, 1959, SEC. 2.  THERE ARE
PRESENTLY 115 LICENSES IN EFFECT IN HARRISBURG, AND BASED ON 1970
CENSUS FIGURES, THE QUOTA WOULD BE 45. 

/3/  HOTELS AND RESTAURANTS MAY SERVE LIQUOR BETWEEN 7 A.M. AND 2
A.M. THE NEXT DAY, MONDAY THROUGH SATURDAY.  ON SUNDAY, SUCH LICENSES
ARE RESTRICTED TO SALES BETWEEN 12 P.M. AND 2 A.M., AND BETWEEN 1 P.M.
AND 10 P.M.  PENNSYLVANIA LIQUOR CODE, SEC. 406(A).  THUS, SUCH
LICENSEES MAY SERVE A TOTAL OF 123 HOURS PER WEEK.  CLUB LICENSEES,
HOWEVER, ARE PERMITTED TO SELL LIQUOR TO MEMBERS AND GUESTS FROM 7 A.M.
TO 3 A.M. THE NEXT DAY, SEVEN DAYS A WEEK.  IBID.  THE TOTAL HOURS OF
SALE PERMITTED CLUB LICENSEES ARE 140, 17 MORE THAN ARE PERMITTED
HOTELS AND RESTAURANTS.  (THERE IS AN ADDITIONAL RESTRICTION ON
ELECTION-DAY SALES TO WHICH ONLY CLUB LICENSEES ARE EXEMPT.  IBID.) 

/4/  THE MAJORITY ASSERTS THAT APPELLEE IRVIS HAD "STANDING" ONLY TO
CHALLENGE MOOSE LODGE'S GUEST-SERVICE PRACTICES, NOT ITS MEMBERSHIP
POLICIES, ON THE THEORY THAT HIS "INJURY . . . STEMMED, NOT FROM THE
LODGE'S MEMBERSHIP REQUIREMENTS, BUT FROM ITS POLICIES WITH RESPECT TO
THE SERVING OF GUESTS OF MEMBERS."  ANTE, AT 166.  I SUBMIT THAT
APPELLEE'S STANDING IS NOT SO CONFINED. 

A LITIGANT HAS STANDING,FOR PURPOSES OF THE ART. III "CASE" OR
"CONTROVERSY" REQUIREMENT, IF HE "ALLEGES THAT THE CHALLENGED ACTION
HAS CAUSED HIM INJURY IN FACT, ECONOMIC OR OTHERWISE."  ASSOCIATION OF
DATA PROCESSING SERVICE ORGANIZATIONS V. CAMP, 397 U.S. 150, 152.  WHEN
MOOSE LODGE REFUSED SERVICE TO APPELLEE IRVIS SOLELY BECAUSE OF HIS
RACE, IT IMPOSED UPON HIM A SPECIAL DISABILITY APART FROM THAT SUFFERED
BY THE POPULATION AT LARGE.  IF THIS DISCRIMINATION IS CHARGEABLE TO
THE STATE, IRVIS HAS STANDING, NOT ONLY TO CHALLENGE MOOSE LODGE'S
GUEST POLICIES-- THE IMMEDIATE CAUSE OF THE HARM-- BUT ALSO TO
CHALLENGE THE STATE SCHEME WHICH AUTHORIZED THESE POLICIES.  FOR AN
INDIVIDUAL "SUBJECTED BY STATUTE TO SPECIAL DISABILITIES NECESSARILY
HAS . . . A SUBSTANTIAL, IMMEDIATE, AND REAL INTEREST IN THE VALIDITY
OF THE STATUTE WHICH IMPOSES THE DISABILITY."  EVERS V. DWYER, 358 U.S.
202, 204. 

MOREOVER, ONCE CALLED INTO QUESTION, ALL DISCRIMINATION AUTHORIZED
BY THE SCHEME IS AT ISSUE.  JUST AS A FEDERAL COURT MAY ORDER AN ENTIRE
SCHOOL DESEGREGATED UPON THE PETITION OF A LITIGANT REPRESENTING ONLY
THE FIFTH GRADE, SO COULD THE COURT BELOW CURE THE INVIDIOUS
DISCRIMINATION IT FOUND TO EXIST IN PENNSYLVANIA'S LIQUOR LICENSING
SCHEME UPON THE PETITION OF A LITIGANT INJURED ONLY BY ONE ASPECT OF
THAT DISCRIMINATION.  THE ROOT EVIL WAS THAT IRVIS WAS DISCRIMINATED
AGAINST WITH THE BLESSING OF THE STATE, NOT THAT HE WAS DISCRIMINATED
AGAINST QUA "GUEST" OR "MEMBER." 

IN MY VIEW, MOREOVER, A BLACK PENNSYLVANIAN SUFFERS COGNIZABLE
INJURY WHEN THE STATE SUPPORTS AND ENCOURAGES THE MAINTENANCE OF A
SYSTEM OF SEGREGATED FRATERNAL ORGANIZATIONS, WHETHER OR NOT HE HIMSELF
HAD SOUGHT MEMBERSHIP IN OR HAD BEEN REFUSED SERVICE BY SUCH AN
ORGANIZATION, JUST AS A BLACK PENNSYLVANIAN WOULD SUFFER COGNIZABLE
INJURY IF THE STATE WERE TO ENFORCE A SEGREGATED BUS SYSTEM, WHETHER OR
NOT HE HAD EVER RIDDEN OR EVER INTENDED TO RIDE ON SUCH A BUS.  CF.
EVERS V. DWYER, SUPRA.  AMERICAN CULTURE AND HISTORY HAVE BEEN SO
PLAGUED WITH RACISM AND DISCRIMINATION THAT IT IS CLEAR BEYOND DOUBT
THAT IN SUCH CIRCUMSTANCES BLACKS SUFFER "INJURY IN FACT."  IT "IS
PRACTICALLY A BRAND UPON THEM, AFFIXED BY THE LAW, AN ASSERTION OF
THEIR INFERIORITY, AND A STIMULANT TO . . . RACE PREJUDICE.  . . . "
STRAUDER V. WEST VIRGINIA, 100 U.S. 303, 308.  THEIR STAKE IS ANALOGOUS
TO THE "SPIRITUAL STAKE" IN FIRST AMENDMENT VALUES WHICH WE HAVE HELD
MAY GIVE STANDING TO RAISE CLAIMS UNDER THE ESTABLISHMENT CLAUSE AND
FREE EXERCISE CLAUSE.  SEE FLAST V. COHEN, 392 U.S. 83. 

THUS, WHETHER STATE ACTION BE FOUND IN REGULATION SEC. 113.09, IN
PENNSYLVANIA'S CREATION OF A MONOPOLY WHICH OPERATES TO RESTRICT ACCESS
TO PLACES IN WHICH BLACKS MAY BE SERVED LIQUOR, OR BOTH, APPELLEE IRVIS
HAS STANDING TO CHALLENGE ALL ASPECTS OF THE DISCRIMINATORY SCHEME. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL, JOINS,
DISSENTING. 

WHEN MOOSE LODGE OBTAINED ITS LIQUOR LICENSE, THE STATE OF
PENNSYLVANIA BECAME AN ACTIVE PARTICIPANT IN THE OPERATION OF THE LODGE
BAR.  LIQUOR LICENSING LAWS ARE ONLY INCIDENTALLY REVENUE MEASURES;
THEY ARE PRIMARILY PERVASIVE REGULATORY SCHEMES UNDER WHICH THE STATE
DICTATES AND CONTINUALLY SUPERVISES VIRTUALLY EVERY DETAIL OF THE
OPERATION OF THE LICENSEE'S BUSINESS.  VERY FEW, IF ANY, OTHER LICENSED
BUSINESSES EXPERIENCE SUCH COMPLETE STATE INVOLVEMENT.  YET THE COURT
HOLDS THAT SUCH INVOLVEMENT DOES NOT CONSTITUTE "STATE ACTION" MAKING
THE LODGE'S REFUSAL TO SERVE A GUEST LIQUOR SOLELY BECAUSE OF HIS RACE
A VIOLATION OF THE FOURTEENTH AMENDMENT.  THE VITAL FLAW IN THE COURT'S
REASONING IS ITS COMPLETE DISREGARD OF THE FUNDAMENTAL VALUE UNDERLYING
THE "STATE ACTION"  CONCEPT.  THAT VALUE IS DISCUSSED IN MY SEPARATE
OPINION IN ADICKES V. KRESS & CO., 398 U.S. 144, 190-191 (1970): 

     "THE STATE-ACTION DOCTRINE REFLECTS THE PROFOUND JUDGMENT THAT

  DENIALS OF EQUAL TREATMENT, AND PARTICULARLY DENIALS ON ACCOUNT

  OF RACE OR COLOR, ARE SINGULARLY GRAVE WHEN GOVERNMENT HAS OR

  SHARES RESPONSIBILITY FOR THEM.  GOVERNMENT IS THE SOCIAL ORGAN

  TO WHICH ALL IN OUR SOCIETY LOOK FOR THE PROMOTION OF LIBERTY,

  JUSTICE, FAIR AND EQUAL TREATMENT, AND THE SETTING OF WORTHY

  NORMS AND GOALS FOR SOCIAL CONDUCT.  THEREFORE SOMETHING IS

  UNIQUELY AMISS IN A SOCIETY WHERE THE GOVERNMENT, THE

  AUTHORITATIVE ORACLE OF COMMUNITY VALUES, INVOLVES ITSELF IN

  RACIAL DISCRIMINATION.  ACCORDINGLY, . . . THE CASES THAT HAVE

COME BEFORE US (IN WHICH) THIS COURT HAS CONDEMNED SIGNIFICANT

  STATE INVOLVEMENT IN RACIAL DISCRIMINATION, HOWEVER SUBTLE AND

  INDIRECT IT MAY HAVE BEEN AND WHATEVER FORM IT MAY HAVE TAKEN(,)

  . . . REPRESENT VIGILANT FIDELITY TO THE CONSTITUTIONAL PRINCIPLE

  THAT NO STATE SHALL IN ANY SIGNIFICANT WAY LEND ITS AUTHORITY TO

  THE SORDID BUSINESS OF RACIAL DISCRIMINATION." 

PLAINLY, THE STATE OF PENNSYLVANIA'S LIQUOR REGULATIONS INTERTWINE
THE STATE WITH THE OPERATION OF THE LODGE BAR IN A "SIGNIFICANT WAY
(AND) LEND (THE STATE'S) AUTHORITY TO THE SORDID BUSINESS OF RACIAL
DISCRIMINATION."  THE OPINION OF THE LATE CIRCUIT JUDGE FREEDMAN, FOR
THE THREE-JUDGE DISTRICT COURT, MOST PERSUASIVELY DEMONSTRATES THE
"STATE ACTION" PRESENT IN THIS CASE: 

     "WE BELIEVE THE DECISIVE FACTOR IS THE UNIQUENESS AND THE

  ALL-PERVASIVENESS OF THE REGULATION BY THE COMMONWEALTH OF

  PENNSYLVANIA OF THE DISPENSING OF LIQUOR UNDER LICENSES GRANTED

  BY THE STATE.  THE REGULATION INHERENT IN THE GRANT OF A STATE

LIQUOR LICENSE IS SO DIFFERENT IN NATURE AND EXTENT FROM THE

  ORDINARY LICENSES ISSUED BY THE STATE THAT IT IS DIFFERENT IN

  QUALITY. 

     "IT HAD ALWAYS BEEN HELD IN PENNSYLVANIA, EVEN PRIOR TO THE

  EIGHTEENTH AMENDMENT, THAT THE EXERCISE OF THE POWER TO GRANT

  LICENSES FOR THE SALE OF INTOXICATING LIQUOR WAS AN EXERCISE OF

  THE HIGHEST GOVERNMENTAL POWER, ONE IN WHICH THE STATE HAD THE

  FULLEST FREEDOM INHERING IN THE POLICE POWER OF THE SOVEREIGN. 

WITH THE EIGHTEENTH AMENDMENT WHICH WENT INTO EFFECT IN 1919 THE

  RIGHT TO DEAL IN INTOXICATING LIQUOR WAS EXTINGUISHED.  THE ERA

  OF PROHIBITION ENDED WITH THE ADOPTION IN 1933 OF THE

  TWENTY-FIRST AMENDMENT, WHICH HAS LEFT TO EACH STATE THE ABSOLUTE

  POWER TO PROHIBIT THE SALE, POSSESSION OR USE OF INTOXICATING

  LIQUOR, AND IN GENERAL TO DEAL OTHERWISE WITH IT AS IT SEES FIT. 

     "PENNSYLVANIA HAS EXERCISED THIS POWER WITH THE FULLEST
MEASURE

  OF STATE AUTHORITY.  UNDER THE PENNSYLVANIA PLAN THE STATE

  MONOPOLIZES THE SALE OF LIQUOR THROUGH ITS SO-CALLED STATE

  STORES, OPERATED BY THE STATE.  RESALE OF LIQUOR IS PERMITTED BY

  HOTELS, RESTAURANTS AND PRIVATE CLUBS, WHICH MUST OBTAIN LICENSES

  FROM THE LIQUOR CONTROL BOARD, AUTHORIZING THEM 'TO PURCHASE

  LIQUOR FROM A PENNSYLVANIA LIQUOR STORE (AT A DISCOUNT) AND KEEP

  ON THE PREMISES SUCH LIQUOR AND, SUBJECT TO THE PROVISIONS OF

  THIS ACT AND THE REGULATIONS MADE THEREUNDER TO SELL THE SAME AND

  ALSO MALT OR BREWED BEVERAGES TO GUESTS, PATRONS OR MEMBERS FOR

  CONSUMPTION ON THE HOTEL, RESTAURANT OR CLUB PREMISES.' 

     "THE ISSUANCE OR REFUSAL OF A LICENSE TO A CLUB IS IN THE

  DISCRETION OF THE LIQUOR CONTROL BOARD.  IN ORDER TO SECURE ONE

 OF THE LIMITED NUMBER OF LICENSES WHICH ARE AVAILABLE IN EACH

  MUNICIPALITY AN APPLICANT MUST COMPLY WITH EXTENSIVE

  REQUIREMENTS, WHICH IN GENERAL ARE APPLICABLE TO COMMERCIAL AND

  CLUB LICENSES EQUALLY.  THE APPLICANT MUST MAKE SUCH PHYSICAL

  ALTERATIONS IN HIS PREMISES AS THE BOARD MAY REQUIRE AND, IF A

  CLUB, MUST FILE A LIST OF THE NAMES AND ADDRESSES OF ITS MEMBERS

  AND EMPLOYEES, TOGETHER WITH SUCH OTHER INFORMATION AS THE BOARD

  MAY REQUIRE.  HE MUST CONFORM HIS OVERALL FINANCIAL ARRANGEMENTS

  TO THE STATUTE'S EXACTING REQUIREMENTS AND KEEP EXTENSIVE

  RECORDS.  HE MAY NOT PERMIT 'PERSONS OF ILL REPUTE' TO FREQUENT

HIS PREMISES NOR ALLOW THEREON AT ANY TIME ANY 'LEWD, IMMORAL OR

  IMPROPER ENTERTAINMENT.'  HE MUST GRANT THE BOARD AND ITS AGENTS

  THE RIGHT TO INSPECT THE LICENSED PREMISES AT ANY TIME WHEN

  PATRONS, GUESTS OR MEMBERS ARE PRESENT.  IT IS ONLY ON COMPLIANCE

  WITH THESE AND NUMEROUS OTHER REQUIREMENTS AND IF THE BOARD IS

  SATISFIED THAT THE APPLICANT IS 'A PERSON OF GOOD REPUTE' AND

  THAT THE LICENSE WILL NOT BE 'DETRIMENTAL TO THE WELFARE, HEALTH,

  PEACE, AND MORALS OF THE INHABITANTS OF THE NEIGHBORHOOD,' THAT

THE LICENSE MAY ISSUE. 

     "ONCE A LICENSE HAS BEEN ISSUED THE LICENSEE MUST COMPLY WITH

  MANY DETAILED REQUIREMENTS OR RISK ITS SUSPENSION OR REVOCATION. 

  HE MUST IN ANY EVENT HAVE IT RENEWED PERIODICALLY.  LIQUOR

  LICENSES HAVE BEEN EMPLOYED IN PENNSYLVANIA TO REGULATE A WIDE

  VARIETY OF MORAL CONDUCT, SUCH AS THE PRESENCE AND ACTIVITIES OF

  HOMOSEXUALS, PERFORMANCE BY A TOPLESS DANCER, LEWD DANCING,

  SWEARING, BEING NOISY OR DISORDERLY.  SO BROAD IS THE STATE'S

  POWER THAT THE COURTS OF PENNSYLVANIA HAVE UPHELD ITS RESTRICTION

  OF FREEDOM OF EXPRESSION OF A LICENSEE ON THE GROUND THAT IN

  DOING SO IT MERELY EXERCISES ITS PLENARY POWER TO ATTACH

  CONDITIONS TO THE PRIVILEGE OF DISPENSING LIQUOR WHICH A LICENSEE

  HOLDS AT THE SUFFERANCE OF THE STATE. 

     "THESE ARE BUT SOME OF THE MANY REPORTED ILLUSTRATIONS OF THE

  USE WHICH THE STATE HAS MADE OF ITS UNRESTRICTED POWER TO

  REGULATE AND EVEN TO DENY THE RIGHT TO SELL, TRANSPORT OR POSSESS

  INTOXICATING LIQUOR.  IT WOULD BE DIFFICULT TO FIND A MORE

  PERVASIVE INTERACTION OF STATE AUTHORITY WITH PERSONAL CONDUCT. 

  THE HOLDER OF A LIQUOR LICENSE FROM THE COMMONWEALTH OF

  PENNSYLVANIA THEREFORE IS NOT LIKE OTHER LICENSEES WHO CONDUCT

 THEIR ENTERPRISES AT ARMS-LENGTH FROM THE STATE, EVEN THOUGH THEY

  MAY HAVE BEEN REQUIRED TO COMPLY WITH CERTAIN CONDITIONS, SUCH AS

  ZONING OR BUILDING REQUIREMENTS, IN ORDER TO OBTAIN OR CONTINUE

  TO ENJOY THE LICENSE WHICH AUTHORIZES THEM TO ENGAGE IN THEIR

  BUSINESS.  THE STATE'S CONCERN IN SUCH CASES IS MINIMAL AND ONCE

  THE CONDITIONS IT HAS EXACTED ARE MET THE CUSTOMARY OPERATIONS OF

  THE ENTERPRISES ARE FREE FROM FURTHER ENCROACHMENT.  HERE BY

  CONTRAST BEYOND THE ACT OF LICENSING IS THE CONTINUING AND

PERVASIVE REGULATION OF THE LICENSEES BY THE STATE TO AN

UNPARALLELED EXTENT.  THE UNIQUE POWER WHICH THE STATE ENJOYS IN

  THIS AREA, WHICH HAS PUT IT IN THE BUSINESS OF OPERATING STATE

  LIQUOR STORES AND IN THE ROLE OF LICENSING CLUBS, HAS BEEN

  EXERCISED IN A MANNER WHICH REACHES INTIMATELY AND DEEPLY INTO

  THE OPERATION OF THE LICENSEES. 

     "IN ADDITION TO THIS, THE REGULATIONS OF THE LIQUOR CONTROL

  BOARD ADOPTED PURSUANT TO THE STATUTE AFFIRMATIVELY REQUIRE THAT

  'EVERY CLUB LICENSEE SHALL ADHERE TO ALL THE PROVISIONS OF ITS

  CONSTITUTION AND BY-LAWS.'  AS APPLIED TO THE PRESENT CASE THIS

  REGULATION REQUIRES THE LOCAL LODGE TO ADHERE TO THE CONSTITUTION

  OF THE SUPREME LODGE AND THUS TO EXCLUDE NON-CAUCASIANS FROM

  MEMBERSHIP IN ITS LICENSED CLUB.  THE STATE THEREFORE HAS BEEN

  FAR FROM NEUTRAL.  IT HAS DECLARED THAT THE LOCAL LODGE MUST

ADHERE TO THE DISCRIMINATORY PROVISION UNDER PENALTY OF LOSS OF

  ITS LICENSE.  IT WOULD BE DIFFICULT IN ANY EVENT TO CONSIDER THE

  STATE NEUTRAL IN AN AREA WHICH IS SO PERMEATED WITH STATE

  REGULATION AND CONTROL, BUT ANY VESTIGE OF NEUTRALITY DISAPPEARS

  WHEN THE STATE'S REGULATION SPECIFICALLY EXACTS COMPLIANCE BY THE

  LICENSEE WITH AN APPROVED PROVISION FOR DISCRIMINATION,

  ESPECIALLY WHERE THE EXACTION HOLDS THE THREAT OF LOSS OF THE

  LICENSE. 

"HOWEVER IT MAY DEAL WITH ITS LICENSEES IN EXERCISING ITS GREAT

  AND UNTRAMMELED POWER OVER LIQUOR TRAFFIC, THE STATE MAY NOT

  DISCRIMINATE AGAINST OTHERS OR DISREGARD THE OPERATION OF THE

  EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AS IT AFFECTS

  PERSONAL RIGHTS.  HERE THE STATE HAS USED ITS GREAT POWER TO

  LICENSE THE LIQUOR TRAFFIC IN A MANNER WHICH HAS NO RELATION TO

  THE TRAFFIC IN LIQUOR ITSELF BUT INSTEAD PERMITS IT TO BE

  EXPLOITED IN THE PURSUIT OF A DISCRIMINATORY PRACTICE."  318

  F.SUPP.  1246, 1248-1250 (MD PA. 1970). 

THIS IS THUS A CASE REQUIRING APPLICATION OF THE PRINCIPLE THAT
UNTIL TODAY HAS GOVERNED OUR DETERMINATIONS OF THE EXISTENCE OF "STATE
ACTION":  "OUR PRIOR DECISIONS LEAVE NO DOUBT THAT THE MERE EXISTENCE
OF EFFORTS BY THE STATE, THROUGH LEGISLATION OR OTHERWISE, TO
AUTHORIZE, ENCOURAGE, OR OTHERWISE SUPPORT RACIAL DISCRIMINATION IN A
PARTICULAR FACET OF LIFE CONSTITUTES ILLEGAL STATE INVOLVEMENT IN THOSE
PERTINENT PRIVATE ACTS OF DISCRIMINATION THAT SUBSEQUENTLY OCCUR." 
ADICKES V. KRESS & CO., 398 U.S.,AT 202 (SEPARATE OPINION OF BRENNAN,
J.).  SEE, E.G., PETERSON V. CITY OF GREENVILLE, 373 U.S. 244 (1963);
BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715 (1961); EVANS V.
NEWTON, 382 U.S. 296 (1966); HUNTER V. ERICKSON, 393 U.S. 385 (1969);
LOMBARD V. LOUISIANA, 373 U.S. 267 (1963); REITMAN V. MULKEY, 387 U.S.
369 (1967); ROBINSON V. FLORIDA, 378 U.S. 153 (1964); MCCABE V.
ATCHISON, T. & S.F.R. CO., 235 U.S. 151 (1914). 

I THEREFORE DISSENT AND WOULD AFFIRM THE FINAL DECREE ENTERED BY THE
DISTRICT COURT. 

FREDERICK BERNAYS WEINER ARGUED THE CAUSE FOR APPELLANT.  WITH HIM
ON THE BRIEFS WERE CLARENCE J. RUDDY, ROBERT E. WOODSIDE, AND THOMAS D.
CALDWELL, JR. 

HARRY J. RUBIN ARGUED THE CAUSE FOR APPELLEES AND FILED BRIEFS FOR
APPELLEE IRVIS.  J. SHANE CREAMER, ATTORNEY GENERAL OF PENNSYLVANIA,
AND PETER W. BROWN AND SALVATORE J. CUCINOTTA, DEPUTY ATTORNEYS
GENERAL, FILED A BRIEF FOR APPELLEES SCOTT ET AL. 

ROBERT A. YOTHERS FILED A BRIEF FOR THE BENEVOLENT AND PROTECTIVE
ORDER OF ELKS OF THE UNITED STATES AS AMICUS CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JOHN T. RIGBY
FOR THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, AND BY SAMUEL
RABINOVE, PAUL HARTMAN, AND JOSEPH Z. FLEMING FOR THE AMERICAN JEWISH
COMMITTEE ET AL. 

WILLIAM H. BOTZER AND JACK P. JANETATOS FILED A BRIEF FOR THE
WASHINGTON STATE FEDERATION OF FRATERNAL, PATRIOTIC, CITY AND COUNTRY
CLUBS AS AMICUS CURIAE. 
..END :

















TAYLOR V. MCKEITHEN, 407 U.S. 191 


       TAYLOR ET AL V. MCKEITHEN, GOVERNOR OF LOUISIANA, ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 71-784.  DECIDED JUNE 12, 1972 


THE DISTRICT COURT IN THIS LITIGATION INVOLVING LEGISLATIVE
REAPPORTIONMENT, AFTER EXTENSIVE HEARINGS, APPROVED A PLAN THAT
DEPARTED FROM HISTORICAL BOUNDARIES AS NECESSARY TO AVOID DILUTION OF
RACIAL MINORITY VOTING STRENGTH.  THE COURT OF APPEALS, WITHOUT
OPINION, REVERSED, ADOPTING LOUISIANA'S PLAN RETAINING THOSE
BOUNDARIES.  HELD:  ABSENT AN EXPLICATION OF THE REASONS FOR ITS
SUMMARY REVERSAL OF THE DISTRICT COURT, THE COURT OF APPEALS' JUDGMENT
IS VACATED AND THE CASE REMANDED. 

CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE 1970 SELF-REAPPORTIONMENT OF THE LOUISIANA LEGISLATURE WAS
CHALLENGED IN THIS LAWSUIT ON THE DUAL GROUNDS THAT IF OFFENDED BOTH
THE ONE-MAN, ONE-VOTE PRINCIPLE AND THE PROHIBITION AGAINST VOTING
ARRANGEMENTS DESIGNED TO DILUTE THE VOTING STRENGTH OF RACIAL
MINORITIES.  AFTER THE UNITED STATES ATTORNEY GENERAL INTERPOSED AN
OBJECTION TO THE ELECTION LAW CHANGE UNDER SEC. 5 OF THE VOTING RIGHTS
ACT OF 1965, 79 STAT. 439, 42 U.S.C. 1973C, THE DISTRICT COURT
APPOINTED A SPECIAL MASTER TO PREPARE A COURT-IMPOSED PLAN.  THE MASTER
WAS VERBALLY INSTRUCTED TO HOLD HEARINGS AND TO DEVISE A PROPOSAL TO
MAINTAIN THE INTEGRITY OF POLITICAL SUBDIVISIONS AND TO OBSERVE NATURAL
OR HISTORICAL BOUNDARIES "AS NEARLY AS POSSIBLE."  HE WAS ALSO
INSTRUCTED THAT "(NO CONSIDERATION WHATSOEVER WAS TO BE GIVEN TO THE
LOCATION OF THE RESIDENCE OF EITHER INCUMBENTS IN OFFICE OR OF
ANNOUNCED OR PROSPECTIVE CANDIDATES."  OPINION OF JUDGE WEST, CIVIL
ACTION NO. 71-234, AUG. 24, 1971. 

THE SPECIAL MASTER HELD FOUR DAYS OF HEARINGS, DURING WHICH OVER 100
PERSONS WERE HEARD.  PROPOSED PLANS WERE RECEIVED BY HIM.  NO ONE WAS
DENIED A HEARING.  HE THEN SUBMITTED HIS RECOMMENDATION TO THE DISTRICT
COURT AND AFTER A HEARING IT WAS ADOPTED BY THE COURT. 

THIS DISPUTE INVOLVES ONLY FOUR STATE SENATE SEATS AFFECTED BY THE
REAPPORTIONMENT.  AT THE HEARING HELD BY THE DISTRICT JUDGE ON THE
MASTER'S PROPOSAL, THE STATE ATTORNEY GENERAL PRESENTED A COUNTERPLAN
WHICH DIFFERED FROM THE MASTER'S ONLY WITH RESPECT TO FOUR SENATORIAL
DISTRICTS IN THE NEW ORLEANS AREA.  ALTHOUGH THE JUDGE FOUND THAT BOTH
PLANS SATISFIED THE ONE-MAN, ONE-VOTE REQUIREMENT, HE FOUND THAT THE
TWO SCHEMES DIFFERED IN THEIR RACIAL COMPOSITION OF THE FOUR DISTRICTS,
AS IS SET OUT IN GREATER DETAIL IN THE MARGIN.  /1/  UNDER THE STATE
ATTORNEY GENERAL'S SCHEME, FOUR "SAFE" WHITE DISTRICTS WERE PROPOSED
WHEREAS THE MASTER'S DESIGN WOULD HAVE CREATED TWO DISTRICTS OF SLIGHT
MAJORITIES OF BLACK VOTERS.  ALSO, UNDER THE COUNTERPLAN EACH INCUMBENT
WOULD CONTINUE TO RESIDE IN HIS "OWN" DISTRICT, WHEREAS UNDER THE
MASTER'S PROPOSAL THE RESIDENCE OF THE FOUR INCUMBENTS WOULD FALL
EVENLY BETWEEN THE TWO DISTRICTS TO BE COMPOSED PRIMARILY OF WHITE
VOTERS, ENSURING DEFEAT FOR TWO OF THE FOUR INCUMBENTS. 

AT THE HEARING THE STATE ATTORNEY GENERAL CONTENDED THAT THE COURT'S
PLAN WOULD MAKE HASH OF THE TRADITIONAL WARD-AND-PRECINCT LINES.  THE
DISTRICT COURT ACKNOWLEDGED THAT THERE WOULD BE SOME DEPARTURE FROM THE
HISTORICAL PATTERNS BUT CONCLUDED THAT THE "'HISTORICAL' BOUNDARIES OF
VOTING DISTRICTS IN LOUISIANA REFLECTED) A HISTORY OF RACIAL
DISCRIMINATION.  ADHERENCE TO THE HISTORICAL BOUNDARIES ALLUDED TO BY
OBJECTORS (HAD) BEEN THE PRIME REASON WHY ONLY TWO NEGROES (HAD) BEEN
ALLOWED TO SIT IN THE LOUISIANA LEGISLATURE IN THE LAST 75 YEARS."  333
F.SUPP.  452, 462.  THE COURT FOUND THAT THE ALTERNATIVE PROPOSAL WOULD
"OPERATE TO DIVERSIFY THE NEGRO VOTING POPULATION THROUGHOUT THE FOUR
DISTRICTS AND THUS SIGNIFICANTLY DILUTE THEIR VOTE" AND WOULD
PRACTICALLY ELIMINATE "THE POSSIBILITY OF A NEGRO BEING ELECTED FROM
ANY OF THE FOUR DISTRICTS," WHILE THE COURT-APPROVED PLAN WOULD AT
LEAST GIVE BLACKS "A FAIR CHANCE IN TWO OUT OF THE FOUR DISTRICTS.  . .
. " ID., AT 457.  THE COURT-APPROVED PLAN SOUGHT "TO PROTECT THE RIGHTS
OF THE PEOPLE WHILE THE PRIMARY PURPOSE OF THE SENATORS' PLAN APPEARED)
TO BE THE PROTECTION OF INCUMBENT OFFICE HOLDERS."  ID., AT 458. 
ACCORDINGLY, AS MENTIONED, THE DISTRICT COURT ADOPTED THE MASTER'S
RECOMMENDATION. 

DESPITE THE DISTRICT COURT'S FINDINGS, HOWEVER, THE COURT OF APPEALS
REVERSED WITHOUT OPINION AND ADOPTED THE ATTORNEY GENERAL'S ALTERNATIVE
DIVISION OF NEW ORLEANS.  THE PETITIONERS ARE THE ORIGINAL PLAINTIFFS
AND THEY NOW SEEK REVIEW OF THIS SUMMARY REVERSAL. 

AN EXAMINATION OF THE RECORD IN THIS CASE SUGGESTS THAT THE COURT OF
APPEALS MAY HAVE BELIEVED THAT BENIGN DISTRICTING BY FEDERAL JUDGES IS
ITSELF UNCONSTITUTIONAL GERRYMANDERING EVEN WHERE (A) IT IS EMPLOYED TO
OVERCOME THE RESIDUAL EFFECTS OF PAST STATE DILUTION OF NEGRO VOTING
STRENGTH AND (B) THE ONLY ALTERNATIVE IS TO LEAVE INTACT THE
TRADITIONAL "SAFE" WHITE DISTRICTS.  /2/  IF THAT WERE IN FACT THE
REASONING OF THE LOWER COURT, THEN THIS PETITION WOULD PRESENT AN
IMPORTANT FEDERAL QUESTION OF THE EXTENT TO WHICH THE BROAD EQUITABLE
POWERS OF A FEDERAL COURT, SWANN V. CHARLOTTE-MECKLENBURG BOARD OF
EDUCATION, 402 U.S. 1, 15, ARE LIMITED BY THE COLORBLIND CONCEPT OF
GOMILLION V. LIGHTFOOT, 364 U.S. 339, AND WRIGHT V. ROCKEFELLER, 376
U.S. 52, 57, 67 (DOUGLAS, J., DISSENTING).  /3/  IN REAPPORTIONMENT
CASES, AS JUSTICE STEWART HAS OBSERVED, "THE FEDERAL COURTS ARE OFTEN
GOING TO BE FACED WITH HARD REMEDIAL PROBLEMS" IN MINIMIZING FRICTION
BETWEEN THEIR REMEDIES AND LEGITIMATE STATE POLICIES.  SIXTY-SEVENTH
MINNESOTA STATE SENATE V. BEENS, 406 U.S. 187, 204 (DISSENTING
OPINION). 

BECAUSE THIS RECORD DOES NOT FULLY INFORM US OF THE PRECISE NATURE
OF THE LITIGATION AND BECAUSE WE HAVE NOT HAD THE BENEFIT OF THE
INSIGHT OF THE COURT OF APPEALS, WE GRANT THE PETITION FOR WRIT OF
CERTIORARI, VACATE THE JUDGMENT BELOW, AND REMAND THE CASE TO THE COURT
OF APPEALS FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  /4/ 

/1/  ACCORDING TO THE DISTRICT JUDGE'S OPINION, THE PERCENTAGES OF
BLACK REGISTERED VOTERS IN EACH OF THE FOUR DISTRICTS UNDER EACH OF THE
COMPETING PLANS WOULD BE:

              MASTER'S   ATTORNEY GENERAL'S

              PLAN

  DISTRICT 2 . . . 51% 37.6% DISTRICT 3 . . . 18% 25.7% DISTRICT 4
. . . 58% 44.3% DISTRICT 5

  . . . 20% 24.0% 

/2/  IT IS POSSIBLE, BUT UNLIKELY, THAT THE COURT OF APPEALS
BELIEVED THAT BENIGN DISTRICTING, ALTHOUGH PERMISSIBLE, WAS ACHIEVABLE
HERE WITH LESS VIOLENCE TO THE PARISH'S HISTORICAL DISTRICT LINES.  BUT
HAD THAT BEEN ITS VIEW PRESUMABLY THE COURT WOULD HAVE REMANDED FOR THE
CONSTRUCTION OF A LESS DRASTIC ALTERNATIVE RATHER THAN SIMPLY DIRECTING
THE ADOPTION OF THE ATTORNEY GENERAL'S COUNTERPLAN. 

/3/ ALTHOUGH SIMILAR IN SOME RESPECTS, THIS CASE IS NOT CONTROLLED
BY WHITCOMB V. CHAVIS, 403 U.S. 124.  TO BE SURE, IN BOTH CASES THE
DISTRICT COURTS WERE WRITING ON CLEAN SLATES IN THE SENSE THAT THEY
WERE FASHIONING COURT-IMPOSED REAPPORTIONMENT PLANS.  AND, IN EACH CASE
THE EQUITABLE REMEDY OF THE COURT CONFLICTED WITH A STATE POLICY. 
(THERE THE STATE POLICY FAVORED MULTI-MEMBER DISTRICTS WHEREAS HERE THE
POLICY FAVORS MAINTENANCE OF TRADITIONAL BOUNDARIES.)  THE IMPORTANT
DIFFERENCE, HOWEVER, IS THAT IN WHITCOMB IT WAS CONCEDED THAT THE
STATE'S PREFERENCE FOR MULTI-MEMBER DISTRICTS WAS NOT ROOTED IN RACIAL
DISCRIMINATION, 403 U.S.,AT 149.  HERE, HOWEVER, THERE HAS BEEN NO SUCH
CONCESSION AND, INDEED, THE DISTRICT COURT FOUND A LONG "HISTORY" OF
BIAS AND FRANCHISE DILUTION IN THE STATE'S TRADITIONAL DRAWING OF
DISTRICT LINES.  CF. ID., AT 155. 

/4/  WE, OF COURSE, AGREE THAT THE COURTS OF APPEALS SHOULD HAVE
WIDE LATITUDE IN THEIR DECISIONS OF WHETHER OR HOW TO WRITE OPINIONS. 
THAT IS ESPECIALLY TRUE WITH RESPECT TO SUMMARY AFFIRMANCES.  SEE RULE
21, COURT OF APPEALS FOR THE FIFTH CIRCUIT.  BUT HERE THE LOWER COURT
SUMMARILY REVERSED WITHOUT ANY OPINION ON A POINT THAT HAD BEEN
CONSIDERED AT LENGTH BY THE DISTRICT JUDGE.  UNDER THE SPECIAL
CIRCUMSTANCES OF THIS CASE, WE ARE LOATH TO IMPUTE TO THE COURT OF
APPEALS REASONING THAT WOULD RAISE A SUBSTANTIAL FEDERAL QUESTION WHEN
IT IS PLAUSIBLE THAT ITS ACTUAL GROUND OF DECISION WAS OF MORE LIMITED
IMPORTANCE. 

MR. JUSTICE BLACKMUN CONCURS IN THE COURT'S JUDGMENT. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
POWELL JOIN, DISSENTING. 

THE SHORT RECITATION OF SPECIFIC FACTS IN THE COURT'S OPINION MAKES
CLEAR THAT THE ISSUES IN THIS CASE, AS VIEWED BY BOTH PETITIONERS AND
RESPONDENTS, ARE WELL DEVELOPED IN THE RECORD.  THE FEDERAL QUESTIONS
ADVERTED TO BY THE COURT IN ITS OPINION ARE UNDOUBTEDLY IMPORTANT
ONES.  THEY ARE EITHER PRESENTED BY THE PROCEEDINGS BELOW ON THIS
RECORD, OR THEY ARE NOT; THIS COURT, IN EXERCISING ITS CERTIORARI
JURISDICTION, MAY WISH TO CONSIDER SUCH PROBLEMS AS ARE PRESENTED IN
THIS CASE AT THIS TIME, OR IT MAY NOT.  WHILE AN OPINION FROM THE COURT
OF APPEALS FULLY EXPLAINING THE REASON FOR ITS REVERSAL OF THE DISTRICT
COURT WOULD UNDOUBTEDLY BE OF ASSISTANCE TO OUR EXERCISE OF CERTIORARI
JURISDICTION HERE, IT IS BY NO MEANS ESSENTIAL.  /1/  I DO NOT BELIEVE
THAT THE COURT'S VACATION OF THE JUDGMENT BELOW WITH A VIRTUALLY
EXPRESS DIRECTIVE TO THE COURT OF APPEALS THAT IT WRITE AN OPINION IS
AN APPROPRIATE EXERCISE OF THIS COURT'S AUTHORITY. 

THE COURTS OF APPEALS ARE STATUTORY COURTS, HAVING THE POWER TO
PRESCRIBE RULES FOR THE CONDUCT OF THEIR OWN BUSINESS SO LONG AS THOSE
RULES ARE CONSISTENT WITH APPLICABLE LAW AND RULES OF PRACTICE AND
PROCEDURE PRESCRIBED BY THIS COURT, 28 U.S.C. 2071.  NO EXISTING
STATUTE OR RULE OF PROCEDURE PROHIBITS THE FIFTH CIRCUIT FROM ISSUING A
SHORT OPINION AND ORDER, AS IT HAS DONE HERE, OR FROM DECIDING CASES
WITHOUT ANY OPINION AT ALL.  CF. RULE 21, COURT OF APPEALS FOR THE
FIFTH CIRCUIT.  THE COURTS OF APPEALS, AND PARTICULARLY THE FIFTH
CIRCUIT, WHICH HAS EXPERIENCED THE HEAVIEST CASELOAD OF ALL THE
CIRCUITS, NEED THE MAXIMUM POSSIBLE LATITUDE TO DEAL WITH THE "FLOOD
TIDE" OF APPEALS THAT THE "EVER GROWING EXPLOSIVE INCREASE" OF FEDERAL
JUDICIAL BUSINESS HAS PRODUCED.  SEE ISBELL ENTERPRISES, INC. V.
CITIZENS CASUALTY CO., 431 F.2D 409 (CA5 1970); NLRB V. AMALGAMATED
CLOTHING WORKERS, 430 F.2D 966 (CA5 1970).  /2/ 

IF THERE ARE IMPORTANT FEDERAL QUESTIONS PRESENTED IN THIS RECORD,
THIS COURT SHOULD ADDRESS ITSELF TO THEM.  INSTEAD OF DOING THAT, IT
CALLS UPON THE FIFTH CIRCUIT TO WRITE AN AMICUS CURIAE OPINION TO AID
US.  I THINK DECISIONS AS TO WHETHER OPINIONS SHOULD ACCOMPANY
JUDGMENTS OF THE COURTS OF APPEALS, AND THE DESIRABLE LENGTH AND
CONTENT OF THOSE OPINIONS ARE MATTERS BEST LEFT TO THE JUDGES OF THE
COURTS OF APPEALS.  I THEREFORE DISSENT FROM THE ORDER OF VACATION AND
REMAND. 

/1/  SEE, E.G., LEGO V. TWOMEY, 404 U.S. 477, 482 N. 6 (1972). 

/2/  IN FISCAL YEAR 1971, 2,316 NEW MATTERS WERE DOCKETED IN THE
FIFTH CIRCUIT, 380 MORE THAN IN ANY OF THE OTHER CIRCUITS.  THIS
REPRESENTED A 120% INCREASE IN A 10-YEAR PERIOD, ALTHOUGH THE NUMBER OF
CIRCUIT JUDGES WAS INCREASED BY ONLY 60%.  ANNUAL REPORT OF THE
DIRECTOR OF THE AMDINISTRATIVE OFFICE OF THE UNITED STATES COURTS 106
(1971).  THE INCREASE IN THE BUSINESS OF THE COURTS OF APPEALS HAS BEEN
ALMOST EXPONENTIAL.  IN 1961 THE FIFTH CIRCUIT CARRIED OVER ONLY 278
CASES THAT WERE UNDISPOSED OF.  BY 1970 THERE WERE 1,181 CASES PUT OVER
TO THE SUCCEEDING YEAR.  NLRB V. AMALGAMATED CLOTHING WORKERS, 430 F.2D
966, 968 N. 4 (CA5 1970). 
..END :

















FLOWER V. UNITED STATES, 407 U.S. 197 


       FLOWER V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 71-1180.  DECIDED JUNE 12, 1972 


APPLICATION OF 18 U.S.C. 1382, PROSCRIBING THE RE-ENTRY ONTO A
MILITARY POST OF A PERSON WHO HAS BEEN REMOVED THEREFROM OR ORDERED BY
AN OFFICER NOT TO RE-ENTER, HELD VIOLATIVE OF FIRST AMENDMENT RIGHTS AS
APPLIED WHEN PETITIONER, A CIVILIAN WHO HAD PREVIOUSLY BEEN BARRED FROM
THE POST WAS ARRESTED AFTER RE-ENTRY WHILE QUIETLY DISTRIBUTING
LEAFLETS ON A PUBLIC STREET EXTENSIVELY USED BY CIVILIANS AS WELL AS
MILITARY PERSONNEL THAT RUNS THROUGH FORT SAM HOUSTON, AN OPEN MILITARY
POST. 

CERTIORARI GRANTED; 452 F.2D 80, REVERSED AND REMANDED. 

PER CURIAM. 

PETITIONER JOHN THOMAS FLOWER, A REGIONAL "PEACE EDUCATION
SECRETARY" OF THE AMERICAN FRIENDS SERVICE COMMITTEE AND A CIVILIAN,
WAS ARRESTED BY MILITARY POLICE WHILE QUIETLY DISTRIBUTING LEAFLETS ON
NEW BRAUNFELS AVENUE AT A POINT WITHIN THE LIMITS OF FORT SAM HOUSTON,
SAN ANTONIO, TEXAS.  IN AN ENSUING PROSECUTION BEFORE THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS ON CHARGES OF
VIOLATING 18 U.S.C. 1382 ("WHOEVER REENTERS OR IS FOUND (WITHIN A
MILITARY POST) AFTER HAVING BEEN REMOVED THEREFROM OR ORDERED NOT TO
REENTER BY ANY OFFICER OR PERSON IN COMMAND OR CHARGE THEREOF-- SHALL
BE FINED NOT MORE THAN $500 OR IMPRISONED NOT MORE THAN SIX MONTHS, OR
BOTH"), IT WAS ESTABLISHED THAT PETITIONER HAD PREVIOUSLY BEEN BARRED
FROM THE POST BY ORDER OF THE DEPUTY COMMANDER BECAUSE OF ALLEGED
PARTICIPATION IN AN ATTEMPT TO DISTRIBUTE "UNAUTHORIZED" LEAFLETS.  THE
DISTRICT COURT FOUND THAT SEC. 1382 "IS A VALID LAW" AND WAS VALIDLY
APPLIED.  IT SENTENCED PETITIONER TO SIX MONTHS IN PRISON.  A DIVIDED
PANEL OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  452 F.2D
80 (CA5 1972). 

WE REVERSE.  WHATEVER POWER THE AUTHORITIES MAY HAVE TO RESTRICT
GENERAL ACCESS TO A MILITARY FACILITY, SEE CAFETERIA & RESTAURANT
WORKERS V. MCELROY, 367 U.S. 886 (1961), HERE THE FORT COMMANDER CHOSE
NOT TO EXCLUDE THE PUBLIC FROM THE STREET WHERE PETITIONER WAS
ARRESTED.  AS JUDGE SIMPSON, DISSENTING, NOTED BELOW: 

"THERE IS NO SENTRY POST OR GUARD AT EITHER ENTRANCE OR ANYWHERE
ALONG THE ROUTE.  TRAFFIC FLOWS THROUGH THE POST ON THIS AND OTHER
STREETS 24 HOURS A DAY.  A TRAFFIC COUNT CONDUCTED ON NEW BRAUNFELS
AVENUE ON JANUARY 22, 1968, BY THE DIRECTOR OF TRANSPORTATION OF THE
CITY OF SAN ANTONIO, SHOWS A DAILY (24-HOUR) VEHICULAR COUNT OF 15,110
SOUTH OF GRAYSON STREET (THE PLACE WHERE THE STREET ENTERS THE POST
BOUNDARY) AND 17,740 VEHICLES DAILY NORTH OF THAT POINT.  THE STREET IS
AN IMPORTANT TRAFFIC ARTERY USED FREELY BY BUSES, TAXI CABS AND OTHER
PUBLIC TRANSPORTATION FACILITIES AS WELL AS BY PRIVATE VEHICLES, AND
ITS SIDEWALKS ARE USED EXTENSIVELY AT ALL HOURS OF THE DAY BY CIVILIANS
AS WELL AS BY MILITARY PERSONNEL.  FORT SAM HOUSTON WAS AN OPEN POST;
THE STREET, NEW BRAUNFELS AVENUE, WAS A COMPLETELY OPEN STREET."  452
F.2D,AT 90.  UNDER SUCH CIRCUMSTANCES THE MILITARY HAS ABANDONED ANY
CLAIM THAT IT HAS SPECIAL INTERESTS IN WHO WALKS, TALKS, OR DISTRIBUTES
LEAFLETS ON THE AVENUE.  THE BASE COMMANDANT CAN NO MORE ORDER
PETITIONER OFF THIS PUBLIC STREET BECAUSE HE WAS DISTRIBUTING LEAFLETS
THAN COULD THE CITY POLICE ORDER ANY LEAFLETEER OFF ANY PUBLIC STREET. 
CF. LOVELL V. CITY OF GRIFFIN, 303 U.S. 444 (1938), SCHNEIDER V. STATE,
308 U.S. 147 (1939).  "(STREETS ARE NATURAL AND PROPER PLACES FOR THE
DISSEMINATION OF INFORMATION AND OPINION," 308 U.S.,AT 163.  "(ONE WHO
IS RIGHTFULLY ON A STREET WHICH THE STATE HAS LEFT OPEN TO THE PUBLIC
CARRIES WITH HIM THERE AS ELSEWHERE THE CONSTITUTIONAL RIGHT TO EXPRESS
HIS VIEWS IN AN ORDERLY FASHION."  JAMISON V. TEXAS, 318 U.S. 413, 416
(1943). 

THE FIRST AMENDMENT PROTECTS PETITIONER FROM THE APPLICATION OF SEC.
1382 UNDER CONDITIONS LIKE THOSE OF THIS CASE.  ACCORDINGLY, WITHOUT
NEED TO SET THE MATTER FOR FURTHER ARGUMENT, WE GRANT THE PETITION FOR
A WRIT OF CERTIORARI AND REVERSE THE CONVICTION. 

              REVERSED AND REMANDED. 

MR. JUSTICE BLACKMUN DISSENTS, FOR HE WOULD GRANT THE PETITION FOR
CERTIORARI AND HEAR ARGUMENT ON THE MERITS. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE JOINS,
DISSENTING. 

THE RESULT, IF NOT THE REASONING, OF THE COURT'S IMPRESSIONISTIC
SUMMARY REVERSAL OF THE COURT OF APPEALS IN THIS CASE IS CLEAR:
WITHOUT BENEFIT OF BRIEFS OR ORAL ARGUMENT THE COURT DECLARES
UNCONSTITUTIONAL THIS APPLICATION OF 18 U.S.C. 1382, A STATUTE ENACTED
TO GIVE COMMANDERS OF MILITARY POSTS AUTHORITY THOUGHT NECESSARY BY
CONGRESS TO EXCLUDE CIVILIANS FROM THE POST AREA AFTER PROPER NOTICE. 

BECAUSE THE POST COMMANDER OF FORT SAM HOUSTON MAY HAVE PERMITTED
CIVILIAN VEHICULAR AND PEDESTRIAN TRAFFIC ON NEW BRAUNFELS AVENUE
WITHIN THE LIMITS OF FORT SAM HOUSTON, /1/  THE COURT HOLDS THAT HE HAS
"ABANDONED" ANY CLAIM OF SPECIAL INTEREST IN WHO WALKS, TALKS, OR
DISTRIBUTES LEAFLETS ON THE AVENUE.  OBVIOUSLY THE COURT CANNOT BE
REFERRING TO THE SUBJECTIVE INTENT OF THE BASE COMMANDER, SINCE HE GAVE
PETITIONER DUE NOTICE OF HIS DEBARMENT FROM THE BASE, AND THE BRINGING
OF THIS PROSECUTION EVINCES A RATHER STRONG INTEREST ON THE PART OF THE
COMMANDER IN PETITIONER'S "LEAFLETING" ACTIVITIES.  IF THE COURT MEANS
TO SAY THAT ONCE ANY PORTION OF A MILITARY BASE IS OPENED UP TO
UNREGULATED VEHICULAR TRAFFIC IT AUTOMATICALLY FOLLOWS THAT SUCH
PORTION OF THE BASE ACQUIRES THE STATUS OF A PUBLIC SQUARE IN A CITY OR
TOWN, THE MERE STATEMENT OF THAT PROPOSITION-- WHICH IS ALL THAT IS
CONTAINED IN THE COURT'S OPINION-- IS NOT SELF-DEMONSTRATING.  SINCE
THE COURT DOES NOT HOLD, AND IT DOES NOT APPEAR ON THIS RECORD THAT IT
COULD HOLD, THAT PETITIONER FLOWER WAS TREATED DIFFERENTLY FROM ANY
OTHER "LEAFLETEERS,"  THE COURT'S HOLDING DOES NOT DEAL WITH ANY
POSSIBLE DENIAL OF EQUAL PROTECTION.  THE CASE THUS CONCERNS ONLY THE
FIRST AMENDMENT CLAIM OF LEAFLETEERS TO GO ANYWHERE ON A MILITARY BASE
TO WHICH CIVILIAN VEHICLES AND PEDESTRIANS ARE GRANTED FREE ACCESS. 

ADDERLEY V. FLORIDA, 385 U.S. 39 (1966), SUGGESTS THAT CIVILIAN
AUTHORITIES MAY DRAW REASONABLE DISTINCTIONS, BASED ON THE PURPOSE FOR
WHICH PUBLIC BUILDING AND GROUNDS ARE USED, IN ACCORDING THE RIGHT TO
EXERCISE FIRST AMENDMENT FREEDOMS IN SUCH BUILDINGS AND ON SUCH
GROUNDS.  SIMPLY BECAUSE SOME ACTIVITIES AND INDIVIDUALS ARE ALLOWED ON
GOVERNMENT PROPERTY DOES NOT REQUIRE THE ABANDONMENT OF OTHERWISE
ALLOWABLE RESTRICTIONS ON ITS USE.  INDEED, IT IS GENERALLY RECOGNIZED
THAT DEMONSTRATIONS ON COURTHOUSE GROUNDS CAN BE PROHIBITED IN ORDER TO
PROTECT THE PROPER EXERCISE OF THE JUDICIAL FUNCTION.  SEE COX V.
LOUISIANA, 379 U.S. 559, 562 (1965).  SEE ALSO 63 STAT. 617, SEC. 6, 40
U.S.C. 13K (PROHIBITING ANY DEMONSTRATIONS ON THE GROUNDS SURROUNDING
THIS COURT).  SIMILARLY, THE UNIQUE REQUIREMENTS OF MILITARY MORALE AND
SECURITY MAY WELL NECESSITATE CONTROL OVER CERTAIN PERSONS AND
ACTIVITIES ON THE BASE, EVEN WHILE NORMAL TRAFFIC FLOW THROUGH THE AREA
CAN BE TOLERATED. 

THE COURT'S OPINION LEAVES THE BASE COMMANDER WITH A HOBSON'S
CHOICE.  HE MAY CLOSE ACCESS TO CIVILIAN TRAFFIC ON NEW BRAUNFELS
AVENUE AND OTHER TRAFFIC ARTERIES TRAVERSING THE POST, THEREBY
RENDERING THE POST ONCE MORE SUBJECT TO THE AUTHORITY THAT CONGRESS
INTENDED HIM TO HAVE, BUT ALSO CAUSING SUBSTANTIAL INCONVENIENCE TO
CIVILIAN RESIDENTS OF BEXAR COUNTY WHO PRESENTLY USE THESE ARTERIES. 
OR, HE MAY CONTINUE TO ACCOMMODATE THE CONVENIENCE OF THE RESIDENTS,
BUT ONLY AT THE COST OF SURRENDERING THE AUTHORITY CONGRESS CONFERRED
UPON HIM UNDER 18 U.S.C. 1382 TO CONTROL ACCESS TO THE POST HE
COMMANDS. 

AN ADDITIONAL PROBLEM, TO WHICH THE COURT'S OPINION DEVOTES NO
ATTENTION WHATEVER, IS THE QUESTION OF WHETHER THIS PETITIONER SHOULD
BE FREE TO CHALLENGE THE VALIDITY OF THE POST COMMANDER'S ORIGINAL
DEBARMENT ORDER IN DEFENDING A CRIMINAL PROSECUTION UNDER 18 U.S.C.
1382.  THE SOLICITOR GENERAL, IN OPPOSING THE PETITION FOR A WRIT OF
CERTIORARI, CONTENDS THAT PETITIONER WOULD HAVE BEEN FREE TO CHALLENGE
THE DEBARMENT ORDER IN A SEPARATE PROCEEDING IN THE UNITED STATES
DISTRICT COURT, RELYING ON KIISKILA V. NICHOLS, 433 F.2D 745 (CA7
1970), AND DASH V. COMMANDING GENERAL, 429 F.2D 427 (CA4 1970).  THE
COURT, BY DETERMINING SUB SILENTIO THAT EXHAUSTION OF SUCH REMEDIES IS
NOT REQUIRED, SUBSTANTIALLY DILUTES THE EFFECTIVENESS OF THE CRIMINAL
SANCTION THAT CONGRESS DELIBERATELY PLACED BEHIND A POST COMMANDER'S
ORDER OF DEBARMENT.  IT ACCOMPLISHES THIS DILUTION IN A WAY THAT MAY
NOT BE AT ALL NECESSARY TO THE VINDICATION OF PETITIONER'S FIRST
AMENDMENT RIGHTS.  BY REQUIRING PETITIONER TO PROCEED IN AN ORDERLY
MANNER TO FIRST LITIGATE ANY ALLEGED CONSTITUTIONAL INFIRMITY IN THE
DEBARMENT ORDER, THE COURT COULD ASSURE HIM A FORUM FOR THE ASSERTION
OF SUCH CLAIMS WHILE PRESERVING TO THE POST COMMANDER THE AVAILABILITY
OF A RELATIVELY SUMMARY CRIMINAL SANCTION AGAINST ONE WHO VIOLATED A
DEBARMENT ORDER WHOSE VALIDITY HAS NOT BEEN CONTESTED. 

WHILE FULL ARGUMENT IN THIS CASE ON THE MERITS MIGHT PERSUADE ME
THAT THE COURT'S RESULT WAS REQUIRED BY THE CONSTITUTION, ITS PRESENT
OPINION CERTAINLY HAS NOT DONE SO.  I THEREFORE DISSENT FROM THE
SUMMARY REVERSAL. 

/1/  FROM A RECORD CONSISTING LARGELY OF REJECTED OFFERS OF PROOF,
THE COURT CONCLUDES THAT FORT SAM HOUSTON WAS AN "OPEN" POST.  IT ALSO
CONCLUDES THAT NEW BRAUNFELS AVENUE, A TRAFFIC ARTERY WITHIN THE POST,
WAS A "COMPLETELY OPEN" STREET, PRESUMABLY MORE "OPEN" THAN THE POST AS
A WHOLE.  WHILE I HAVE DIFFICULTY AT THIS STAGE OF THE CASE IN KNOWING
HOW THE COURT REACHES THESE FACTUAL CONCLUSIONS, OR INDEED WHAT EXACTLY
THE VARYING DEGREES OF "OPENNESS" ARE MEANT TO CONNOTE, MY DISAGREEMENT
WITH THE COURT'S SUMMARY REVERSAL IS NOT LIMITED TO THIS ASPECT OF THE
CASE. 
..END :








IVAN V. V. CITY OF NEW YORK, 407 U.S. 203 


       IVAN V. V. CITY OF NEW YORK

        ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE
DIVISION

 OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL

   DEPARTMENT

        NO. 71-6425.  DECIDED JUNE 12, 1972 


IN RE WINSHIP, 397 U.S. 358, WHICH HELD THAT PROOF BEYOND A
REASONABLE DOUBT IS ESSENTIAL TO DUE PROCESS AT THE ADJUDICATORY STAGE
WHEN A JUVENILE IS CHARGED WITH AN ACT THAT WOULD CONSTITUTE A CRIME IF
COMMITTED BY AN ADULT, MUST BE GIVEN FULLY RETROACTIVE EFFECT. 

CERTIORARI GRANTED; 37 APP.DIV.2D 822, 324 N.Y.S.2D 934, REVERSED
AND REMANDED. 

PER CURIAM. 

THE COURT HELD IN IN RE WINSHIP, 397 U.S. 358, DECIDED MARCH 31,
1970, THAT PROOF BEYOND A REASONABLE DOUBT IS AMONG THE ESSENTIALS OF
DUE PROCESS AND FAIR TREATMENT THAT MUST BE AFFORDED AT THE
ADJUDICATORY STAGE WHEN A JUVENILE IS CHARGED WITH AN ACT THAT WOULD
CONSTITUTE A CRIME IF COMMITTED BY AN ADULT.  IN THIS CASE, ON JANUARY
6, 1970, BEFORE WINSHIP WAS DECIDED, PETITIONER WAS ADJUDGED A
DELINQUENT IN THE FAMILY COURT OF BRONX COUNTY, NEW YORK, ON A FINDING,
BASED ON THE PREPONDERANCE-OF-EVIDENCE STANDARD, THAT, AT KNIFEPOINT,
HE FORCIBLY TOOK A BICYCLE FROM ANOTHER BOY, AN ACT THAT, IF DONE BY AN
ADULT, WOULD CONSTITUTE THE CRIME OF ROBBERY IN THE FIRST DEGREE.  ON
DIRECT APPEAL, THE APPELLATE DIVISION, FIRST DEPARTMENT, REVERSED ON
THE GROUND THAT WINSHIP SHOULD BE RETROACTIVELY APPLIED TO ALL CASES
STILL IN THE APPELLATE PROCESS, 35 APP.DIV.2D 806, 316 N.Y.S.2D 568
(1970).  THE NEW YORK COURT OF APPEALS REVERSED THE APPELLATE DIVISION,
HOLDING THAT WINSHIP WAS NOT TO BE APPLIED RETROACTIVELY, 29 N.Y.2D
583, 272 N.E.2D 895 (1971).  /1/  ON REMAND, THE APPELLATE DIVISION
THEREUPON AFFIRMED THE DELINQUENCY ADJUDICATION, 37 APP.DIV.2D 822, 324
N.Y.S.2D 934 (1971), AND THE COURT OF APPEALS DENIED LEAVE TO APPEAL
FROM THAT AFFIRMANCE, 29 N.Y.2D 489 (1972).  WE DISAGREE WITH THE
HOLDING OF THE COURT OF APPEALS THAT WINSHIP IS NOT TO BE APPLIED
RETROACTIVELY. 

"WHERE THE MAJOR PURPOSE OF NEW CONSTITUTIONAL DOCTRINE IS TO
OVERCOME AN ASPECT OF THE CRIMINAL TRIAL THAT SUBSTANTIALLY IMPAIRS ITS
TRUTH-FINDING FUNCTION AND SO RAISES SERIOUS QUESTIONS ABOUT THE
ACCURACY OF GUILTY VERDICTS IN PAST TRIALS, THE NEW RULE HAS BEEN GIVEN
COMPLETE RETROACTIVE EFFECT.  NEITHER GOOD-FAITH RELIANCE BY STATE OR
FEDERAL AUTHORITIES ON PRIOR CONSTITUTIONAL LAW OR ACCEPTED PRACTICE,
NOR SEVERE IMPACT ON THE ADMINISTRATION OF JUSTICE HAS SUFFICED TO
REQUIRE PROSPECTIVE APPLICATION IN THESE CIRCUMSTANCES."  WILLIAMS V.
UNITED STATES, 401 U.S. 646, 653 (1971).  SEE ADAMS V. ILLINOIS, 405
U.S. 278, 280 (1972); ROBERTS V. RUSSELL, 392 U.S. 293, 295 (1968). 

WINSHIP EXPRESSLY HELD THAT THE REASONABLE-DOUBT STANDARD "IS A
PRIME INSTRUMENT FOR REDUCING THE RISK OF CONVICTIONS RESTING ON
FACTUAL ERROR.  THE STANDARD PROVIDES CONCRETE SUBSTANCE FOR THE
PRESUMPTION OF INNOCENCE-- THAT BEDROCK 'AXIOMATIC AND ELEMENTARY'
PRINCIPLE WHOSE 'ENFORCEMENT LIES AT THE FOUNDATION OF THE
ADMINISTRATION OF OUR CRIMINAL LAW'.  . . . 'DUE PROCESS COMMANDS THAT
NO MAN SHALL LOSE HIS LIBERTY UNLESS THE GOVERNMENT HAS BORNE THE
BURDEN OF . . . CONVINCING THE FACTFINDER OF HIS GUILT.'  TO THIS END,
THE REASONABLE-DOUBT STANDARD IS INDISPENSABLE, FOR IT 'IMPRESSES ON
THE TRIER OF FACT THE NECESSITY OF REACHING A SUBJECTIVE STATE OF
CERTITUDE OF THE FACTS IN ISSUE.'"  397 U.S.,AT 363-364. 

PLAINLY, THEN, THE MAJOR PURPOSE OF THE CONSTITUTIONAL STANDARD OF
PROOF BEYOND A REASONABLE DOUBT ANNOUNCED IN WINSHIP WAS TO OVERCOME AN
ASPECT OF A CRIMINAL TRIAL THAT SUBSTANTIALLY IMPAIRS THE TRUTH-FINDING
FUNCTION, AND WINSHIP IS THUS TO BE GIVEN COMPLETE RETROACTIVE EFFECT. 
THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR
WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE APPELLATE DIVISION
OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT, IS
REVERSED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE COURT OF APPEALS FOLLOWED MATTER OF D., 27 N.Y.2D 90, 261
N.E.2D 627 (1970), WHERE WINSHIP WAS SAID NOT TO BE RETROACTIVE BUT
THAT EVEN IF IT WERE, APPELLANT THERE HAD WAIVED THE CLAIM WHEN HE
ENTERED A GUILTY PLEA TO THE CHARGES.  IN THAT CIRCUMSTANCE THIS COURT
DISMISSED AN APPEAL AND DENIED CERTIORARI IN THAT CASE.  D. V. COUNTY
OF ONANDAGA, 403 U.S. 926 (1971). 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






CARLESON V. REMILLARD, 406 U.S. 598 


       CARLESON, DIRECTOR, DEPARTMENT OF SOCIAL WELFARE, ET AL. V.

           REMILLARD ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

        NO. 70-250.  ARGUED APRIL 10, 1972-- DECIDED JUNE 7, 1972 


THIS IS A CLASS ACTION FOR INJUNCTIVE AND DECLARATORY RELIEF BY A
CHILD AND MOTHER WHOSE HUSBAND IS AWAY FROM HOME ON MILITARY DUTY,
CHALLENGING THE VALIDITY OF CALIFORNIA'S DEPARTMENT OF SOCIAL WELFARE
REGULATION EAS SEC. 42-350.11, PURSUANT TO WHICH THEY HAD BEEN DENIED
AID TO FAMILIES WITH DEPENDANT CHILDREN (AFDC) BENEFITS.  THOUGH
CALIFORNIA INCORPORATES IN ITS AFDC ELIGIBILITY PROVISIONS THE
"CONTINUED ABSENCE" CONCEPT OF THE SOCIAL SECURITY ACT, UNDER WHICH A
DEPENDENT CHILD "DEPRIVED OF PARENTAL SUPPORT . . . BY REASON OF (A
PARENT'S) CONTINUED ABSENCE FROM THE HOME," IS DEEMED ELIGIBLE FOR AFDC
BENEFITS, EAS SEC. 42-350.11 EXCLUDES ABSENCE BECAUSE OF MILITARY
SERVICE FROM THE DEFINITION OF "CONTINUED ABSENCE."  THE DISTRICT COURT
GRANTED THE RELIEF SOUGHT.  HELD:  SECTION 402(A)(10) OF THE SOCIAL
SECURITY ACT IMPOSES ON EACH STATE PARTICIPATING IN THE AFDC PROGRAM
THE REQUIREMENT THAT BENEFITS "SHALL BE FURNISHED WITH REASONABLE
PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS"  UNDER THE ACT THE ELIGIBILITY
CRITERION OF "CONTINUED ABSENCE" OF A PARENT FROM THE HOME MEANS THAT
THE PARENT MAY BE ABSENT FOR ANY REASON.  CONSEQUENTLY, THAT CRITERION
APPLIES TO ONE WHO IS ABSENT BY REASON OF MILITARY SERVICE, AND
CALIFORNIA'S DEFINITION IS INVALID UNDER THE SUPREMACY CLAUSE.  PP. 600
604. 

325 F.SUPP.  1272, AFFIRMED. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  BURGER,
C. J., FILED A CONCURRING OPINION, POST, P. 604. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLEES ARE MOTHER AND CHILD.  THE HUSBAND ENLISTED IN THE UNITED
STATES ARMY AND SERVED IN VIETNAM.  THE MOTHER APPLIED FOR AID TO
FAMILIES WITH DEPENDENT CHILDREN AFDC) BENEFITS AT A TIME WHEN THE
AMOUNT OF THE MONTHLY ALLOTMENT SHE RECEIVED BY VIRTUE OF HER HUSBAND'S
MILITARY SERVICE WAS LESS THAN HER "NEED" AS COMPUTED BY THE CALIFORNIA
AGENCY AND LESS THAN THE MONTHLY AFDC GRANT AN ADULT WITH ONE CHILD
RECEIVES IN CALIFORNIA.  SHE WAS DENIED RELIEF.  ALTHOUGH THE SOCIAL
SECURITY ACT, 42 U.S.C. 301-1394, GRANTS AID TO FAMILIES WITH
"DEPENDENT CHILDREN," AND INCLUDES IN THE TERM "DEPENDENT CHILD" ONE
"WHO HAS BEEN DEPRIVED OF PARENTAL SUPPORT OR CARE BY REASON OF . . .
CONTINUED ABSENCE FROM THE HOME," 42 U.S.C. 606(A), CALIFORNIA
CONSTRUED "CONTINUED ABSENCE" AS NOT INCLUDING MILITARY ABSENCE.  IT IS
UNQUESTIONED THAT HER CHILD IS IN FACT "NEEDY." 

WHEN THE HUSBAND'S ALLOTMENT CHECK WAS STOPPED, APPELLEE AGAIN
APPLIED FOR AFDC BENEFITS.  SHE AGAIN WAS DENIED THE BENEFITS, THIS
TIME BECAUSE CALIFORNIA HAD ADOPTED A REGULATION /1/  WHICH
SPECIFICALLY PROHIBITED THE PAYMENT OF AFDC BENEFITS TO NEEDY FAMILIES
WHERE THE ABSENCE OF A PARENT WAS DUE TO MILITARY SERVICE. 

THIS ACTION IS A CLASS ACTION SEEKING A DECLARATION OF THE INVALIDITY
OF THE REGULATION AND AN INJUNCTION RESTRAINING ITS ENFORCEMENT ON THE
GROUND THAT IT CONFLICTS WITH THE SOCIAL SECURITY ACT AND DENIES
APPELLEES THE FOURTEENTH AMENDMENT RIGHTS OF DUE PROCESS AND EQUAL
PROTECTION. 

A THREE-JUDGE DISTRICT COURT WAS CONVENED AND BY A DIVIDED VOTE
GRANTED THE RELIEF SOUGHT.  325 F.SUPP.  1272.  THE CASE IS HERE BY
APPEAL.  28 U.S.C. 1253, 2101(B).  WE NOTED PROBABLE JURISDICTION, 404
U.S. 1013. 

PLACES ON EACH STATE PARTICIPATING IN THE AFDC PROGRAM THE REQUIREMENT
THAT "AID TO FAMILIES WITH DEPENDENT CHILDREN SHALL BE FURNISHED WITH
REASONABLE PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS."  "ELIGIBILITY," SO
DEFINED, MUST BE MEASURED BY FEDERAL STANDARDS.  KING V. SMITH, 392
U.S. 309.  THERE, WE WERE FACED WITH AN ALABAMA REGULATION WHICH
DEFINED A MOTHER'S PARAMOUR AS A "PARENT" FOR SEC. 606(A)(1) PURPOSES,
THUS PERMITTING THE STATE TO DENY AFDC BENEFITS TO NEEDY DEPENDENT
CHILDREN ON THE THEORY THAT THERE WAS NO PARENT WHO WAS CONTINUALLY
ABSENT FROM THE HOME.  WE HELD THAT CONGRESS HAD DEFINED "PARENT" AS A
BREADWINNER WHO WAS LEGALLY OBLIGATED TO SUPPORT HIS CHILDREN, AND THAT
ALABAMA WAS PRECLUDED FROM ALTERING THAT FEDERAL STANDARD.  THE
IMPORTANCE OF OUR HOLDING WAS STRESSED IN TOWNSEND V. SWANK, 404 U.S.
282, 286: 

"KING V. SMITH ESTABLISHES THAT, AT LEAST IN THE ABSENCE OF
CONGRESSIONAL AUTHORIZATION FOR THE EXCLUSION CLEARLY EVIDENCED FROM
THE SOCIAL SECURITY ACT OR ITS LEGISLATIVE HISTORY, A STATE ELIGIBILITY
STANDARD THAT EXCLUDES PERSONS ELIGIBLE FOR ASSISTANCE UNDER FEDERAL
AFDC STANDARDS VIOLATES THE SOCIAL SECURITY ACT AND IS THEREFORE
INVALID UNDER THE SUPREMACY CLAUSE." 

IN TOWNSEND, WE ALSO EXPRESSLY DISAPPROVED THE DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE (HEW) POLICY WHICH PERMITTED STATES TO VARY
ELIGIBILITY REQUIREMENTS FROM THE FEDERAL STANDARDS WITHOUT EXPRESS OR
CLEARLY IMPLIED CONGRESSIONAL AUTHORIZATION.  IBID. 

TOWNSEND INVOLVED SEC. 406(A)(2)(B) OF THE ACT, 42 U.S.C.
606(A)(2)(B), WHICH INCLUDES IN THE DEFINITION OF "DEPENDENT CHILDREN"
THOSE "UNDER THE AGE OF TWENTY-ONE AND (AS DETERMINED BY THE STATE IN
ACCORDANCE WITH STANDARDS PRESCRIBED BY THE SECRETARY (OF HEW)) A
STUDENT REGULARLY ATTENDING A SCHOOL, COLLEGE, OR UNIVERSITY, OR
REGULARLY ATTENDING A COURSE OF VOCATIONAL OR TECHNICAL TRAINING
DESIGNED TO FIT HIM FOR GAINFUL EMPLOYMENT."  ILLINOIS HAD DEFINED AFDC
ELIGIBLE DEPENDENT CHILDREN TO INCLUDE 18-20-YEAR-OLD HIGH SCHOOL OR
VOCATIONAL SCHOOL CHILDREN BUT NOT CHILDREN OF THE SAME AGE GROUP
ATTENDING COLLEGE.  WE HELD THAT SEC. 606(A)(2)(B) PRECLUDED THAT
CLASSIFICATION BECAUSE IT VARIED FROM THE FEDERAL STANDARD FOR NEEDY
DEPENDENT CHILDREN.  INVOLVED IN THE PRESENT CONTROVERSY IS ANOTHER
ELIGIBILITY CRITERION FOR FEDERAL MATCHING FUNDS SET FORTH IN THE ACT,
NAMELY THE "CONTINUED ABSENCE" OF A PARENT FROM THE HOME.  IF
CALIFORNIA'S DEFINITION CONFLICTS WITH THE FEDERAL CRITERION THEN IT,
TOO, IS INVALID UNDER THE SUPREMACY CLAUSE. 

HEW'S REGULATIONS FOR FEDERAL MATCHING FUNDS PROVIDE /2/  THAT: 

     "CONTINUED ABSENCE OF THE PARENT FROM THE HOME CONSTITUTES THE

  REASON FOR DEPRIVATION OF PARENTAL SUPPORT OR CARE WHEN THE

  PARENT IS OUT OF THE HOME, THE NATURE OF THE ABSENCE IS SUCH AS

EITHER TO INTERRUPT OR TO TERMINATE THE PARENT'S FUNCTIONING AS A

  PROVIDER OF MAINTENANCE, PHYSICAL CARE, OR GUIDANCE FOR THE

  CHILD, AND THE KNOWN OR INDEFINITE DURATION OF THE ABSENCE

  PRECLUDES COUNTING ON THE PARENT'S PERFORMANCE OF HIS FUNCTION IN

  PLANNING FOR THE PRESENT SUPPORT OR CARE OF THE CHILD.  IF THESE

  CONDITIONS EXIST, THE PARENT MAY BE ABSENT FOR ANY REASON, AND HE

  MAY HAVE LEFT ONLY RECENTLY OR SOME TIME PREVIOUSLY." 

THE SOLICITOR GENERAL ADVISES US THAT ALTHOUGH HEW READS THE TERM
"CONTINUED ABSENCE" TO PERMIT THE PAYMENT OF FEDERAL MATCHING FUNDS TO
FAMILIES WHERE THE PARENTAL ABSENCE IS DUE TO MILITARY SERVICE, IT HAS
APPROVED STATE PLANS UNDER WHICH FAMILIES IN THIS CATEGORY ARE NOT
ELIGIBLE FOR AFDC BENEFITS.  /3/  HEW HAS INCLUDED "SERVICE IN THE
ARMED FORCES OR OTHER MILITARY SERVICE" AS AN EXAMPLE OF A SITUATION
FALLING UNDER THE ABOVE DEFINITION OF "CONTINUED ABSENCE."  HEW
HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION, PT. IV, SEC. 3422.2. 

OUR DIFFICULTY WITH THAT POSITION IS THAT "CONTINUED ABSENCE FROM
THE HOME" ACCURATELY DESCRIBES A PARENT ON ACTIVE MILITARY DUTY.  THE
HOUSE REPORT SPEAKS OF CHILDREN "IN FAMILIES LACKING A FATHER'S
SUPPORT," H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 10, AND THE SENATE
REPORT REFERS TO "CHILDREN IN FAMILIES WHICH HAVE BEEN DEPRIVED OF A
FATHER'S SUPPORT."  S. REP. NO. 628, 74TH CONG., 1ST SESS., 17.  WHILE
THE SENATE REPORT NOTED THAT "(THESE ARE PRINCIPALLY FAMILIES WITH
FEMALE HEADS WHO ARE WIDOWED, DIVORCED, OR DESERTED," IBID., IT WAS NOT
STATED OR IMPLIED THAT ELIGIBILITY BY VIRTUE OF A PARENT'S "CONTINUED
ABSENCE" WAS LIMITED TO CASES OF DIVORCE OR DESERTION. 

WE AGREE THAT "CONTINUED ABSENCE" CONNOTES, AS HEW SAYS, THAT "THE
PARENT MAY BE ABSENT FOR ANY REASON."  WE SEARCH THE ACT IN VAIN,
MOREOVER, FOR ANY AUTHORITY TO MAKE "CONTINUED ABSENCE" INTO AN
ACCORDION-LIKE CONCEPT, APPLICABLE TO SOME PARENTS BECAUSE OF
"CONTINUED ABSENCE" BUT NOT TO OTHERS. 

THE PRESENCE IN THE HOME OF THE PARENT WHO HAS THE LEGAL OBLIGATION
TO SUPPORT IS THE KEY TO THE AFDC PROGRAM, KING V. SMITH, 392 U.S.,AT
327; LEWIS V. MARTIN, 397 U.S. 552, 559.  CONGRESS LOOKED TO "WORK
RELIEF" PROGRAMS AND "THE REVIVAL OF PRIVATE INDUSTRY" TO HELP THE
PARENT FIND THE WORK NEEDED TO SUPPORT THE FAMILY.  S. REP. NO. 628,
SUPRA, AT 17, AND THE AFDC PROGRAM WAS DESIGNED TO MEET A NEED UNMET BY
DEPRESSION-ERA PROGRAMS AIMED AT PROVIDING WORK FOR BREADWINNERS.  KING
V. SMITH, SUPRA, AT 328.  THAT NEED WAS THE PROTECTION OF CHILDREN IN
HOMES WITHOUT SUCH A BREADWINNER.  IBID.  IT IS CLEAR THAT "MILITARY
ORPHANS" ARE IN THIS CATEGORY, FOR, AS STATED BY THE SUPREME COURT OF
WASHINGTON, A MAN IN THE MILITARY SERVICE 

"HAS LITTLE CONTROL OVER HIS FAMILY'S ECONOMIC DESTINY.  HE HAS NO
LABOR UNION OR OTHER AGENCY TO LOOK TO AS A MEANS OF PERSUADING HIS
EMPLOYER TO PAY HIM A LIVING WAGE.  HE IS WITHOUT ACCESS TO COLLECTIVE
BARGAINING OR ANY NEGOTIATING FORUM OR OTHER MEANS OF ECONOMIC
PERSUASION, OR EVEN THE INFORMAL BUT CONCERTED SUPPORT OF HIS FELLOW
EMPLOYEES.  HE CANNOT QUIT HIS JOB AND SEEK A BETTER PAYING ONE . . . .
(THERE IS NO ACTION HE COULD LAWFULLY TAKE TO MAKE HIS EARNINGS
ADEQUATE WHILE PUTTING IN FULL TIME ON HIS JOB.  HIS WAS A KIND OF
INVOLUNTARY EMPLOYMENT WHERE LEGALLY HE COULD DO VIRTUALLY NOTHING TO
IMPROVE THE ECONOMIC WELFARE OF HIS FAMILY."  KENNEDY V. DEPT. OF
PUBLIC ASSISTANCE, 79 WASH.2D 728, 732-733, 489 P.2D 154, 157. 

STODDARD V. FISHER, 330 F.SUPP.  566, HELD A MAINE REGULATION
INVALID UNDER THE SUPREMACY CLAUSE WHICH DENIED AFDC AID WHERE THE
FATHER WAS CONTINUALLY ABSENT BECAUSE OF HIS MILITARY SERVICE.  JUDGE
COFFIN SAID: 

   "WE CANNOT HELP BUT NOTE THE IRONY OF A RESULT WHICH WOULD DENY

  ASSISTANCE TO THE FAMILY OF A MAN WHO FINDS THAT FAMILY

  DISQUALIFIED FROM RECEIVING AFDC ON THE GROUND THAT HE HAS

  REMOVED HIMSELF FROM THE POSSIBILITY OF RECEIVING PUBLIC WORK

  RELIEF BY VOLUNTARILY UNDERTAKING, FOR INADEQUATE COMPENSATION,

  THE DEFENSE OF HIS COUNTRY."  ID., AT 571, N. 8. 

WE CANNOT ASSUME HERE, ANYMORE THAN WE COULD IN KING V. SMITH,
SUPRA, THAT WHILE CONGRESS "INTENDED TO PROVIDE PROGRAMS FOR THE
ECONOMIC SECURITY AND PROTECTION OF ALL CHILDREN," IT ALSO "INTENDED
ARBITRARILY TO LEAVE ONE CLASS OF DESTITUTE CHILDREN ENTIRELY WITHOUT
MEANINGFUL PROTECTION."  392 U.S.,AT 330.  WE ARE ESPECIALLY CONFIDENT
CONGRESS COULD NOT HAVE DESIGNED AN ACT LEAVING UNCARED FOR AN ENTIRE
CLASS WHO BECAME "NEEDY CHILDREN" BECAUSE THEIR FATHERS WERE IN THE
ARMED SERVICES DEFENDING THEIR COUNTRY. 

WE HOLD THAT THERE IS NO CONGRESSIONAL AUTHORIZATION FOR STATES TO
EXCLUDE THESE SO-CALLED MILITARY ORPHANS FROM AFDC BENEFITS. 
ACCORDINGLY WE AFFIRM THE JUDGMENT OF THE THREE-JUDGE COURT. 

              AFFIRMED. 

/1/  CALIF. DEPT. SOC. WELFARE REG. EAS SEC. 42-350.11 PROVIDES THAT
"CONTINUED ABSENCE" DOES NOT EXIST: 

"WHEN ONE PARENT IS PHYSICALLY ABSENT FROM THE HOME ON A TEMPORARY
BASIS.  EXAMPLES ARE VISITS, TRIPS MADE IN CONNECTION WITH CURRENT OR
PROSPECTIVE EMPLOYMENT, ACTIVE DUTY IN THE ARMED SERVICES." 

/2/  45 CFR 233.90(C)(1)(III). 

/3/  THE PRESENT RECORD REVEALS THAT 22 STATES AND THE DISTRICT OF
COLUMBIA DO FURNISH AFDC BENEFITS TO NEEDY FAMILIES OF SERVICEMEN,
WHILE 19 STATES AND PUERTO RICO DO NOT. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN IN THE OPINION AND JUDGMENT OF THE COURT, BUT ON THE
ASSUMPTION, NOT EXPRESSLY ARTICULATED IN THE OPINION, THAT A STATE MAY
ADMINISTRATIVELY DEDUCT FROM ITS TOTAL "NEED PAYMENT" SUCH AMOUNT AS IS
BEING PAID TO THE DEPENDENTS UNDER THE MILITARY ALLOTMENT SYSTEM.  IT
WOULD BE CURIOUS, INDEED, IF TWO "POCKETS" OF THE SAME GOVERNMENT WOULD
BE REQUIRED TO MAKE DUPLICATING PAYMENTS FOR WELFARE. 

THE ADMINISTRATIVE PROCEDURES TO GIVE EFFECT TO THIS PROCESS MAY BE
CUMBERSOME, BUT THE RIGHT OF THE STATE TO AVOID OVERLAPPING BENEFITS
FOR SUPPORT SHOULD BE CLEARLY UNDERSTOOD. 

JAY S. LINDERMAN, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WAS EVELLE J. YOUNGER,
ATTORNEY GENERAL. 

CARMEN L. MASSEY, BY APPOINTMENT OF THE COURT, 405 U.S. 951, ARGUED
THE CAUSE AND FILED A BRIEF FOR APPELLEES PRO HAC VICE. 

SOLICITOR GENERAL GRISWOLD AND RICHARD B. STONE FILED A BRIEF FOR
THE UNITED STATES AS AMICUS CURIAE URGING REVERSAL. 
..END :
















BROOKS V. TENNESSEE, 406 U.S. 605 


       BROOKS V. TENNESSEE

        CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TENNESSEE

        NO. 71-5313.  ARGUED MARCH 21-22, 1972-- DECIDED JUNE 7,

           1972 


1.  TENNESSEE'S STATUTORY REQUIREMENT THAT A DEFENDANT IN A CRIMINAL
PROCEEDING "DESIRING TO TESTIFY SHALL DO SO BEFORE ANY OTHER TESTIMONY
FOR THE DEFENSE IS HEARD BY THE COURT TRYING THE CASE" VIOLATES THE
DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION.  A DEFENDANT MAY NOT
BE PENALIZED FOR REMAINING SILENT AT THE CLOSE OF THE STATE'S CASE BY
BEING EXCLUDED FROM THE STAND LATER IN THE TRIAL.  PP. 607-612. 

2.  THE TENNESSEE RULE ALSO INFRINGES THE DEFENDANT'S CONSTITUTIONAL
RIGHTS BY DEPRIVING HIM OF THE "GUIDING HAND OF COUNSEL," IN DECIDING
NOT ONLY WHETHER THE DEFENDANT WILL TESTIFY BUT, IF SO, AT WHAT STAGE. 
PP. 612-613. 

-- TENN.APP.-- , -- S.W.2D-- , REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
WHITE, MARSHALL, AND POWELL, JJ., JOINED.  STEWART J., FILED A
STATEMENT CONCURRING IN THE JUDGMENT AND IN PART II OF THE COURT'S
OPINION, POST, P. 613.  BURGER, C. J., FILED A DISSENTING OPINION, IN
WHICH BLACKMUN AND REHNQUIST, JJ., JOINED, POST, P. 613.  REHNQUIST,
J., FILED A DISSENTING OPINION, IN WHICH BURGER, C. J., AND BLACKMUN,
J., JOINED, POST, P. 617. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS TRIED AND CONVICTED IN THE CIRCUIT COURT OF HAMILTON
COUNTY, TENNESSEE, ON CHARGES OF ARMED ROBBERY AND UNLAWFUL POSSESSION
OF A PISTOL.  DURING THE TRIAL, AT THE CLOSE OF THE STATE'S CASE,
DEFENSE COUNSEL MOVED TO DELAY PETITIONER'S TESTIMONY UNTIL AFTER OTHER
DEFENSE WITNESSES HAD TESTIFIED.  THE TRIAL COURT DENIED THIS MOTION ON
THE BASIS OF TENN. CODE ANN. SEC. 40-2403 (1955), WHICH REQUIRES THAT A
CRIMINAL DEFENDANT "DESIRING TO TESTIFY SHALL DO SO BEFORE ANY OTHER
TESTIMONY FOR THE DEFENSE IS HEARD BY THE COURT TRYING THE CASE."  /1/
ALTHOUGH THE PROSECUTOR AGREED TO WAIVE THE STATUTE, THE TRIAL COURT
REFUSED, STATING THAT "THE LAW IS, AS YOU KNOW IT TO BE, THAT IF A
DEFENDANT TESTIFIES HE HAS TO TESTIFY FIRST."  THE DEFENSE CALLED TWO
WITNESSES, BUT PETITIONER HIMSELF DID NOT TAKE THE STAND. 

FOLLOWING THE DENIAL OF HIS MOTION FOR NEW TRIAL, PETITIONER
APPEALED HIS CONVICTION TO THE TENNESSEE COURT OF CRIMINAL APPEALS,
WHICH OVERRULED HIS ASSIGNMENTS OF ERROR, INCLUDING HIS CLAIM THAT SEC.
40-2403 VIOLATED THE STATE AND FEDERAL CONSTITUTIONS.  THE SUPREME
COURT OF TENNESSEE DENIED REVIEW, AND WE GRANTED CERTIORARI TO CONSIDER
WHETHER THE REQUIREMENT THAT A DEFENDANT TESTIFY FIRST VIOLATES THE
FEDERAL CONSTITUTION.  404 U.S. 955 (1971).  WE REVERSE. 

        I 

THE RULE THAT A DEFENDANT MUST TESTIFY FIRST IS RELATED TO THE
ANCIENT PRACTICE OF SEQUESTERING PROSPECTIVE WITNESSES IN ORDER TO
PREVENT THEIR BEING INFLUENCED BY OTHER TESTIMONY IN THE CASE.  SEE 6
J.WIGMORE, EVIDENCE 1837 (3D ED. 1940).  BECAUSE THE CRIMINAL DEFENDANT
IS ENTITLED TO BE PRESENT DURING TRIAL, AND THUS CANNOT BE SEQUESTERED,
THE REQUIREMENT THAT HE PRECEDE OTHER DEFENSE WITNESSES WAS DEVELOPED
BY COURT DECISION AND STATUTE AS AN ALTERNATIVE MEANS OF MINIMIZING
THIS INFLUENCE AS TO HIM.  ACCORDING TO PROFESSOR WIGMORE, "(THE REASON
FOR THIS RULE IS THE OCCASIONAL READINESS OF THE INTERESTED PERSON TO
ADAPT HIS TESTIMONY, WHEN OFFERED LATER, TO VICTORY RATHER THAN TO
VERACITY, SO AS TO MEET THE NECESSITIES AS LAID OPEN BY PRIOR WITNESSES
. . . ."  ID., AT SEC. 1869. 

DESPITE THIS TRADITIONAL JUSTIFICATION, THE VALIDITY OF THE
REQUIREMENT HAS BEEN QUESTIONED IN A NUMBER OF JURISDICTIONS AS A
LIMITATION UPON THE DEFENDANT'S FREEDOM TO DECIDE WHETHER TO TAKE THE
STAND.  TWO FEDERAL COURTS HAVE REJECTED THE CONTENTION, HOLDING THAT A
TRIAL COURT DOES NOT ABUSE ITS DISCRETION BY REQUIRING THE DEFENDANT TO
TESTIFY FIRST.  UNITED STATES V. SHIPP, 359 F.2D 185, 189-190 (CA6
1966); SPAULDING V. UNITED STATES, 279 F.2D 65, 66-67 (CA9 1960).  IN
SHIPP, HOWEVER, THE DISSENTING JUDGE STRONGLY OBJECTED TO THE RULE,
STATING: 

"IF THE MAN CHARGED WITH CRIME TAKES THE WITNESS STAND IN HIS OWN
BEHALF, ANY AND EVERY ARREST AND CONVICTION, EVEN FOR LESSER FELONIES,
CAN BE BROUGHT BEFORE THE JURY BY THE PROSECUTOR, AND SUCH EVIDENCE MAY
HAVE DEVASTATING AND DEADLY EFFECT, ALTHOUGH UNRELATED TO THE OFFENSE
CHARGED.  THE DECISION AS TO WHETHER THE DEFENDANT IN A CRIMINAL CASE
SHALL TAKE THE STAND IS, THEREFORE, OFTEN OF UTMOST IMPORTANCE, AND
COUNSEL MUST, IN MANY CASES, METICULOUSLY BALANCE THE ADVANTAGES AND
DISADVANTAGES OF THE PRISONER'S BECOMING A WITNESS IN HIS OWN BEHALF. 
WHY, THEN, SHOULD A COURT INSIST THAT THE ACCUSED MUST TESTIFY BEFORE
ANY OTHER EVIDENCE IS INTRODUCED IN HIS BEHALF, OR BE COMPLETELY
FORECLOSED FROM TESTIFYING THEREAFTER?  . . . THIS SAVORS OF JUDICIAL
WHIM, EVEN THOUGH SANCTIONED BY SOME AUTHORITIES; AND THE CAUSE OF
JUSTICE AND A FAIR TRIAL CANNOT BE SUBJECTED TO SUCH A WHIMSICALITY OF
CRIMINAL PROCEDURE."  359 F.2D, AT 190-191. 

OTHER COURTS HAVE FOLLOWED THIS LINE OF REASONING IN STRIKING DOWN
THE RULE AS AN IMPERMISSIBLE RESTRICTION ON THE DEFENDANT'S FREEDOM OF
CHOICE.  IN THE LEADING CASE OF BELL V. STATE, 66 MISS.  192, 5 SO. 389
(1889), THE COURT HELD THE REQUIREMENT TO BE REVERSIBLE ERROR, SAYING: 

"IT MUST OFTEN BE A VERY SERIOUS QUESTION WITH THE ACCUSED AND HIS
COUNSEL WHETHER HE SHALL BE PLACED UPON THE STAND AS A WITNESS, AND
SUBJECTED TO THE HAZARD OF CROSS-EXAMINATION, A QUESTION THAT HE IS NOT
REQUIRED TO DECIDE UNTIL, UPON A PROPER SURVEY OF ALL THE CASE AS
DEVELOPED BY THE STATE, AND MET BY WITNESSES ON HIS OWN BEHALF, HE MAY
INTELLIGENTLY WEIGH THE ADVANTAGES AND DISADVANTAGES OF HIS SITUATION,
AND, THUS ADVISED, DETERMINE HOW TO ACT.  WHETHER HE SHALL TESTIFY OR
NOT; IF SO, AT WHAT STAGE IN THE PROGRESS OF HIS DEFENSE, ARE EQUALLY
SUBMITTED TO THE FREE AND UNRESTRICTED CHOICE OF ONE ACCUSED OF CRIME,
AND ARE IN THE VERY NATURE OF THINGS BEYOND THE CONTROL OR DIRECTION OF
THE PRESIDING JUDGE.  CONTROL AS TO EITHER IS COERCION, AND COERCION IS
DENIAL OF FREEDOM OF ACTION."  ID., AT 194, 5 SO.,AT 389.  IN NASSIF V.
DISTRICT COLUMBIA, 201 A.2D 519 (DC CT. APP. 1964), THE COURT ADOPTED
THE LANGUAGE AND REASONING OF BELL IN CONCLUDING THAT THE TRIAL COURT
HAD ERRED IN APPLYING THE RULE. 

ALTHOUGH BELL, NASSIF, AND THE SHIPP DISSENT WERE NOT BASED ON
CONSTITUTIONAL GROUNDS, WE ARE PERSUADED THAT THE RULE EMBODIED IN SEC.
40-2403 IS AN IMPERMISSIBLE RESTRICTION ON THE DEFENDANT'S RIGHT
AGAINST SELF-INCRIMINATION, "TO REMAIN SILENT UNLESS HE CHOOSES TO
SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN WILL, AND TO SUFFER NO
PENALTY . . . FOR SUCH SILENCE."  MALLOY V. HOGAN, 378 U.S. 1, 8
(1964).  AS THESE OPINIONS DEMONSTRATE, A DEFENDANT'S CHOICE TO TAKE
THE STAND CARRIES WITH IT SERIOUS RISKS OF IMPEACHMENT AND CROSS
EXAMINATION; IT "MAY OPEN THE DOOR TO OTHERWISE INADMISSIBLE EVIDENCE
WHICH IS DAMAGING TO HIS CASE," MCGAUTHA V. CALIFORNIA, 402 U.S. 183,
213 (1971), INCLUDING, NOW, THE USE OF SOME CONFESSIONS FOR IMPEACHMENT
PURPOSES THAT WOULD BE EXCLUDED FROM THE STATE'S CASE IN CHIEF BECAUSE
OF CONSTITUTIONAL DEFECTS.  HARRIS V. NEW YORK, 401 U.S. 222 (1971). 
ALTHOUGH "IT IS NOT THOUGHT INCONSISTENT WITH THE ENLIGHTENED
ADMINISTRATION OF CRIMINAL JUSTICE TO REQUIRE THE DEFENDANT TO WEIGH
SUCH PROS AND CONS IN DECIDING WHETHER TO TESTIFY," MCGAUTHA V.
CALIFORNIA, SUPRA, AT 215, NONE WOULD DENY THAT THE CHOICE ITSELF MAY
POSE SERIOUS DANGERS TO THE SUCCESS OF AN ACCUSED'S DEFENSE. 

ALTHOUGH A DEFENDANT WILL USUALLY HAVE SOME IDEA OF THE STRENGTH OF
HIS EVIDENCE, HE CANNOT BE ABSOLUTELY CERTAIN THAT HIS WITNESSES WILL
TESTIFY AS EXPECTED OR THAT THEY WILL BE EFFECTIVE ON THE STAND.  THEY
MAY COLLAPSE UNDER SKILLFUL AND PERSISTENT CROSS-EXAMINATION, AND
THROUGH NO FAULT OF THEIR OWN THEY MAY FAIL TO IMPRESS THE JURY AS
HONEST AND RELIABLE WITNESSES.  IN ADDITION, A DEFENDANT IS SOMETIMES
COMPELLED TO CALL A HOSTILE PROSECUTION WITNESS AS HIS OWN.  /2/
UNLESS THE STATE PROVIDES FOR DISCOVERY DEPOSITIONS OF PROSECUTION
WITNESSES, WHICH TENNESSEE APPARENTLY DOES NOT, /3/  THE DEFENDANT IS
UNLIKELY TO KNOW WHETHER THIS TESTIMONY WILL PROVE ENTIRELY FAVORABLE. 

BECAUSE OF THESE UNCERTAINTIES, A DEFENDANT MAY NOT KNOW AT THE
CLOSE OF THE STATE'S CASE WHETHER HIS OWN TESTIMONY WILL BE NECESSARY
OR EVEN HELPFUL TO HIS CAUSE.  RATHER THAN RISK THE DANGERS OF TAKING
THE STAND, HE MIGHT PREFER TO REMAIN SILENT AT THAT POINT, PUTTING OFF
HIS TESTIMONY UNTIL ITS VALUE CAN BE REALISTICALLY ASSESSED.  YET,
UNDER THE TENNESSEE RULE, HE CANNOT MAKE THAT CHOICE "IN THE UNFETTERED
EXERCISE OF HIS OWN WILL."  SECTION 40-2403 EXACTS A PRICE FOR HIS
SILENCE BY KEEPING HIM OFF THE STAND ENTIRELY UNLESS HE CHOOSES TO
TESTIFY FIRST.  /4/  THIS, WE THINK, CASTS A HEAVY BURDEN ON A
DEFENDANT'S OTHERWISE UNCONDITIONAL RIGHT NOT TO TAKE THE STAND.  /5/
THE RULE, IN OTHER WORDS, "CUTS DOWN ON THE PRIVILEGE (TO REMAIN
SILENT) BY MAKING ITS ASSERTION COSTLY."  GRIFFIN V. CALIFORNIA, 380
U.S. 609, 614 (1965).  /6/ 

ALTHOUGH THE TENNESSEE STATUTE DOES REFLECT A STATE INTEREST IN
PREVENTING TESTIMONIAL INFLUENCE, WE DO NOT REGARD THAT INTEREST AS
SUFFICIENT TO OVERRIDE THE DEFENDANT'S RIGHT TO REMAIN SILENT AT
TRIAL.  /7/  THIS IS NOT TO IMPLY THAT THERE MAY BE NO RISK OF A
DEFENDANT'S COLORING HIS TESTIMONY TO CONFORM TO WHAT HAS GONE BEFORE. 
BUT OUR ADVERSARY SYSTEM REPOSES JUDGMENT OF THE CREDIBILITY OF ALL
WITNESSES IN THE JURY.  PRESSURING THE DEFENDANT TO TAKE THE STAND, BY
FORECLOSING LATER TESTIMONY IF HE REFUSES, IS NOT A CONSTITUTIONALLY
PERMISSIBLE MEANS OF ENSURING HIS HONESTY.  IT FAILS TO TAKE INTO
ACCOUNT THE VERY REAL AND LEGITIMATE CONCERNS THAT MIGHT MOTIVATE A
DEFENDANT TO EXERCISE HIS RIGHT OF SILENCE.  AND IT MAY COMPEL EVEN A
WHOLLY TRUTHFUL DEFENDANT, WHO MIGHT OTHERWISE DECLINE TO TESTIFY FOR
LEGITIMATE REASONS, TO SUBJECT HIMSELF TO IMPEACHMENT AND CROSS
EXAMINATION AT A TIME WHEN THE STRENGTH OF HIS OTHER EVIDENCE IS NOT
YET CLEAR.  FOR THESE REASONS WE HOLD THAT SEC. 40-2403 VIOLATES AN
ACCUSED'S CONSTITUTIONAL RIGHT TO REMAIN SILENT INSOFAR AS IT REQUIRES
HIM TO TESTIFY FIRST FOR THE DEFENSE OR NOT AT ALL. 

        II 

FOR CLOSELY RELATED REASONS WE ALSO REGARD THE TENNESSEE RULE AS AN
INFRINGEMENT ON THE DEFENDANT'S RIGHT OF DUE PROCESS AS DEFINED IN
FERGUSON V. GEORGIA, 365 U.S. 570 (1961).  THERE THE COURT REVIEWED A
GEORGIA STATUTE PROVIDING THAT A CRIMINAL DEFENDANT, THOUGH NOT
COMPETENT TO TESTIFY UNDER OATH, COULD MAKE AN UNSWORN STATEMENT AT
TRIAL.  THE STATUTE DID NOT PERMIT DEFENSE COUNSEL TO AID THE ACCUSED
BY ELICITING HIS STATEMENT THROUGH QUESTIONS.  THE COURT HELD THAT THIS
LIMITATION DEPRIVED THE ACCUSED OF "'THE GUIDING HAND OF COUNSEL AT
EVERY STEP IN THE PROCEEDINGS AGAINST HIM,' POWELL V. ALABAMA, 287 U.S.
45, 69, WITHIN THE REQUIREMENT OF DUE PROCESS IN THAT REGARD AS IMPOSED
UPON THE STATES BY THE FOURTEENTH AMENDMENT."  ID., AT 572.  THE SAME
MAY BE SAID OF SEC. 40-2403.  WHETHER THE DEFENDANT IS TO TESTIFY IS AN
IMPORTANT TACTICAL DECISION AS WELL AS A MATTER OF CONSTITUTIONAL
RIGHT.  BY REQUIRING THE ACCUSED AND HIS LAWYER TO MAKE THAT CHOICE
WITHOUT AN OPPORTUNITY TO EVALUATE THE ACTUAL WORTH OF THEIR EVIDENCE,
THE STATUTE RESTRICTS THE DEFENSE-- PARTICULARLY COUNSEL-- IN THE
PLANNING OF ITS CASE.  FURTHERMORE, THE PENALTY FOR NOT TESTIFYING
FIRST IS TO KEEP THE DEFENDANT OFF THE STAND ENTIRELY, EVEN THOUGH AS A
MATTER OF PROFESSIONAL JUDGMENT HIS LAWYER MIGHT WANT TO CALL HIM LATER
IN THE TRIAL.  THE ACCUSED IS THEREBY DEPRIVED OF THE "GUIDING HAND OF
COUNSEL" IN THE TIMING OF THIS CRITICAL ELEMENT OF HIS DEFENSE.  WHILE
NOTHING WE SAY HERE OTHERWISE CURTAILS IN ANY WAY THE ORDINARY POWER OF
A TRIAL JUDGE TO SET THE ORDER OF PROOF, THE ACCUSED AND HIS COUNSEL
MAY NOT BE RESTRICTED IN DECIDING WHETHER, AND WHEN IN THE COURSE OF
PRESENTING HIS DEFENSE, THE ACCUSED SHOULD TAKE THE STAND. 

PETITIONER, THEN, WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS WHEN THE
TRIAL COURT EXCLUDED HIM FROM THE STAND FOR FAILING TO TESTIFY FIRST. 
THE STATE MAKES NO CLAIM THAT THIS WAS HARMLESS ERROR, CHAPMAN V.
CALIFORNIA, 386 U.S. 18 (1967), AND PETITIONER IS ENTITLED TO A NEW
TRIAL. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SECTION 40-2403 WAS FIRST ENACTED IN 1887 AS PART OF A
TENNESSEE STATUTE THAT PROVIDED THAT CRIMINAL DEFENDANTS WERE COMPETENT
TO TESTIFY ON THEIR OWN BEHALF.  THAT STATUTE APPEARS IN THE TENNESSEE
CODE ANNOTATED AS FOLLOWS: 

"SEC. 40-2402.  COMPETENCY OF DEFENDANT.  IN THE TRIAL OF ALL
INDICTMENTS, PRESENTMENTS, AND OTHER CRIMINAL PROCEEDINGS, THE PARTY
DEFENDANT THERETO MAY, AT HIS OWN REQUEST, BUT NOT OTHERWISE, BE A
COMPETENT WITNESS TO TESTIFY THEREIN. 

"SEC. 40-2403.  FAILURE OF DEFENDANT TO TESTIFY-- ORDER OF
TESTIMONY.  THE FAILURE OF THE PARTY DEFENDANT TO MAKE SUCH REQUEST AND
TO TESTIFY IN HIS OWN BEHALF, SHALL NOT CREATE ANY PRESUMPTION AGAINST
HIM.  BUT THE DEFENDANT DESIRING TO TESTIFY SHALL DO SO BEFORE ANY
OTHER TESTIMONY FOR THE DEFENSE IS HEARD BY THE COURT TRYING THE
CASE." 

/2/  THE INSTANT CASE IS AN APT ILLUSTRATION.  AFTER THE STATE HAD
RESTED, DEFENSE COUNSEL REQUESTED PERMISSION TO CALL THE LOCAL CHIEF OF
POLICE AS A HOSTILE WITNESS, AND TO CROSS-EXAMINE HIM ABOUT THE
CIRCUMSTANCES SURROUNDING PETITIONER'S LINEUP.  BECAUSE THE POLICE
CHIEF HAD NOT TESTIFIED, THOUGH HE WAS SUBPOENAED BY THE STATE, THE
TRIAL COURT DENIED THE MOTION, RULING THAT THE CHIEF WILL "BE YOUR
WITNESS IF YOU CALL HIM." 

/3/  TENN. CODE ANN. SEC. 40-2428 PROVIDES: 

"THE ACCUSED MAY, BY ORDER OF THE COURT, HAVE THE DEPOSITIONS OF
WITNESSES TAKEN IN THE MANNER PRESCRIBED FOR TAKING DEPOSITIONS IN
CIVIL CASES, ON NOTICE TO THE DISTRICT ATTORNEY." 

HOWEVER, A RECENT DECISION BY THE TENNESSEE COURT OF CRIMINAL
APPEALS HOLDS THAT THIS STATUTE DOES NOT GIVE THE DEFENDANT IN A
CRIMINAL CASE THE RIGHT TO TAKE A DISCOVERY DEPOSITION.  CRAIG V.
STATES, -- TENN.APP.-- , 455 S.W.2D 190 (1970). 

/4/  THE FAILURE TO TESTIFY FIRST NOT ONLY PRECLUDES ANY LATER
TESTIMONY BY DEFENDANT CONCERNING NEW MATTERS, BUT MAY ALSO PRECLUDE
TESTIMONY OFFERED IN REBUTTAL OF STATE'S WITNESSES.  ARNOLD V. STATE,
139 TENN. 674, 202 S.W. 935 (1918), HOLDS THAT A DEFENDANT MAY TESTIFY
IN REBUTTAL IF HE HAS TESTIFIED FIRST ON DIRECT.  ACCORDING TO THE
PARTIES, THERE IS NO TENNESSEE CASE HOLDING THAT A DEFENDANT WHO DOES
NOT TESTIFY FIRST MAY LATER TAKE THE STAND IN REBUTTAL.     /5/  THAT
BURDEN IS NOT LIGHTENED BY THE FACT THAT TENNESSEE COURTS ALSO REQUIRE
THE CHIEF PROSECUTING WITNESS TO TESTIFY FIRST FOR THE STATE IF HE
CHOOSES TO REMAIN IN THE COURTROOM AFTER OTHER WITNESSES ARE
SEQUESTERED.  SMARTT V. STATE, 112 TENN. 539, 80 S.W. 586 (1904). 
DESPITE ITS APPARENT ATTEMPT AT SYMMETRY, THIS RULE DOES NOT RESTRICT
THE PROSECUTION IN THE SAME WAY AS THE DEFENSE, FOR THE STATE HAS A
CERTAIN LATITUDE IN DESIGNATING ITS PROSECUTING WITNESS, CHOOSING FOR
EXAMPLE BETWEEN THE VICTIM OF THE CRIME AND THE INVESTIGATING OFFICER. 
A MORE FUNDAMENTAL DISTINCTION, OF COURSE, IS THAT THE STATE, THROUGH
ITS PROSECUTING WITNESS, DOES NOT SHARE THE DEFENDANT'S CONSTITUTIONAL
RIGHT NOT TO TAKE THE STAND.  THUS, THE CHOICE TO PRESENT THE
PROSECUTING WITNESS FIRST OR NOT AT ALL DOES NOT RAISE A CONSTITUTIONAL
CLAIM SECURED TO THE STATE, AS IT DOES IN THE SITUATION OF THE
DEFENDANT. 

/6/  THE DISSENTING OPINIONS SUGGEST THAT THERE CAN BE NO VIOLATION
OF THE RIGHT AGAINST SELF-INCRIMINATION IN THIS CASE BECAUSE BROOKS
NEVER TOOK THE STAND.  BUT THE TENNESSEE RULE IMPOSED A PENALTY FOR
PETITIONER'S INITIAL SILENCE, AND THAT PENALTY CONSTITUTES THE
INFRINGEMENT OF THE RIGHT. 

/7/  IT IS NOT ALTOGETHER CLEAR THAT THE STATE ITSELF REGARDS THE
INTEREST AS MORE THAN MINIMALLY IMPORTANT.  IT HAS LONG BEEN THE RULE
IN TENNESSEE THAT THE STATUTE MAY BE WAIVED, SEE MARTIN V. STATE, 157
TENN. 383, 8 S.W.2D 479 (1928), AND AN OFFER OF WAIVER WAS MADE BY THE
PROSECUTOR IN THIS CASE, THOUGH NOT ACCEPTED BY THE TRIAL COURT. 

MR. JUSTICE STEWART JOINS PART II OF THE OPINION, AND CONCURS IN THE
JUDGMENT OF THE COURT. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN AND MR.
JUSTICE REHNQUIST JOIN, DISSENTING. 

THIS CASE IS AN EXAMPLE OF THE COURT'S CONFUSING WHAT IT DOES NOT
APPROVE WITH THE DEMANDS OF THE CONSTITUTION.  AS A MATTER OF CHOICE
AND POLICY-- IF I WERE A LEGISLATOR FOR EXAMPLE-- I WOULD NOT VOTE FOR
A STATUTE LIKE THAT THE COURT STRIKES DOWN TODAY.  BUT I CANNOT ACCEPT
THE IDEA THAT THE CONSTITUTION FORBIDS THE STATES TO HAVE SUCH A
STATUTE. 

OF COURSE, IT IS MORE CONVENIENT FOR A LAWYER TO DEFER THE DECISION
TO HAVE THE ACCUSED TAKE THE STAND UNTIL HE KNOWS HOW HIS OTHER
WITNESSES FARE.  BY THE SAME TOKEN, IT IS HELPFUL FOR AN ACCUSED TO BE
ABLE TO ADJUST HIS TESTIMONY TO WHAT HIS WITNESSES HAVE HAD TO SAY ON
THE MATTER.  NO ONE HAS SERIOUSLY CHALLENGED THE ABSOLUTE DISCRETION OF
A TRIAL JUDGE TO EXCLUDE WITNESSES, OTHER THAN THE ACCUSED, FROM THE
COURTROOM UNTIL THEY ARE CALLED TO THE STAND.  THE OBVIOUS PURPOSE IS
TO GET HONEST TESTIMONY AND MINIMIZE THE PROSPECT THAT A WITNESS WILL
ADJUST AND "TAILOR" HIS VERSION TO FIT WHAT OTHERS HAVE SAID; IT SEEMS
SOMEWHAT ODD TO SAY THE CONSTITUTION FORBIDS ALL STATES TO REQUIRE THE
ACCUSED TO GIVE HIS VERSION BEFORE HIS OTHER WITNESSES SPEAK, SINCE IT
IS NOT POSSIBLE TO EXCLUDE HIM FROM THE COURTROOM, AS IS THE COMMON
RULE FOR WITNESSES WHO ARE NOT PARTIES. 

THE COURT'S HOLDING UNDER THE FIFTH AMENDMENT IS ADMITTEDLY
UNSUPPORTED BY ANY AUTHORITY AND CANNOT WITHSTAND ANALYSIS.  THE
CONSTITUTION PROVIDES ONLY THAT NO PERSON SHALL "BE COMPELLED IN ANY
CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  IT IS UNDISPUTED THAT
PETITIONER WAS NOT IN FACT COMPELLED TO BE A WITNESS AGAINST HIMSELF,
AS HE DID NOT TAKE THE STAND.  NOR WAS THE JURY AUTHORIZED OR
ENCOURAGED TO DRAW PERHAPS UNWARRANTED INFERENCES FROM HIS SILENCE, AS
IN GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965).  PETITIONER WAS CLEARLY
NOT SUBJECTED TO THE OBVIOUS COMPULSION OF BEING HELD IN CONTEMPT FOR
HIS SILENCE, AS IN MALLOY V. HOGAN, 378 U.S. 1 (1965), NOR DID THE
TENNESSEE PROCEDURE SUBJECT HIM TO ANY OTHER SIGNIFICANT COMPULSION TO
TESTIFY OTHER THAN THE COMPULSION FACED BY EVERY DEFENDANT WHO CHOOSES
NOT TO TAKE THE STAND-- THE KNOWLEDGE THAT IN THE ABSENCE OF HIS
TESTIMONY THE FORCE OF THE STATE'S EVIDENCE MAY LEAD THE JURY TO
CONVICT.  CASES SUCH AS SPEVACK V. KLEIN, 385 U.S. 511 (1967), AND
GARDNER V. BRODERICK, 392 U.S. 273 (1968), INVOLVING LOSS OF EMPLOYMENT
OR DISBARMENT ARE THEREFORE CLEARLY INAPPOSITE.  THAT SHOULD END THE
MATTER. 

HOWEVER, THE COURT DISTORTS BOTH THE CONTEXT AND CONTENT OF MALLOY
V. HOGAN, SUPRA, AT 8, BY INTIMATING THAT THE FIFTH AMENDMENT MAY BE
VIOLATED IF THE DEFENDANT IS FORCED TO MAKE A DIFFICULT CHOICE AS TO
WHETHER TO TAKE THE STAND AT SOME POINT IN TIME PRIOR TO THE CONCLUSION
OF A CRIMINAL TRIAL.  BUT, AS THE COURT POINTED OUT ONLY LAST TERM IN
MCGAUTHA V. CALIFORNIA, 402 U.S. 183 (1971), "(ALTHOUGH A DEFENDANT MAY
HAVE A RIGHT, EVEN OF CONSTITUTIONAL DIMENSIONS, TO FOLLOW WHICHEVER
COURSE HE CHOOSES, THE CONSTITUTION DOES NOT BY THAT TOKEN ALWAYS
FORBID REQUIRING HIM TO CHOOSE."  ID., AT 213.  INDEED, THE "CHOICE" WE
SUSTAINED IN MCGAUTHA WAS FAR MORE DIFFICULT THAN THAT HERE, AS THE
PROCEDURE THERE CLEARLY EXERTED CONSIDERABLE FORCE TO COMPEL THE
DEFENDANT TO WAIVE THE PRIVILEGE AND TAKE THE STAND IN ORDER TO AVOID
THE POSSIBLE IMPOSITION OF THE DEATH PENALTY.  SEE ALSO WILLIAMS V.
FLORIDA, 399 U.S. 78 (1970).  THERE IS NO SUCH PRESSURE HERE.  THE
MAJORITY'S RATIONALE WOULD LEAD TO THE ABSURD RESULT THAT THE STATE
WOULD NOT EVEN REQUIRE THE DEFENDANT TO FINALLY DECIDE WHETHER HE
WISHES TO TAKE THE STAND PRIOR TO THE TIME THE JURY RETIRES FOR
DELIBERATIONS, FOR, EVEN AT THAT POINT, HE "MAY NOT KNOW . . . WHETHER
HIS OWN TESTIMONY WILL BE NECESSARY OR EVEN HELPFUL TO HIS CAUSE." 
EVEN THEN, HE MIGHT "PREFER TO REMAIN SILENT . . . PUTTING OFF HIS
TESTIMONY UNTIL ITS VALUE CAN BE REALISTICALLY ASSESSED."  IN SHORT,
EVEN AT THE CLOSE OF THE DEFENSE CASE, HIS DECISION TO TAKE THE STAND
IS NOT UNFETTERED BY THE DIFFICULTY TO MAKE THE HARD CHOICE TO WAIVE
THE PRIVILEGE.  PERHAPS THE DEFENDANT'S DECISION WILL BE EASIER AT THE
CLOSE OF ALL THE EVIDENCE.  PERHAPS NOT.  THE ONLY "BURDEN" CAST ON THE
DEFENDANT'S CHOICE TO TAKE THE STAND BY THE TENNESSEE PROCEDURE IS THE
BURDEN TO MAKE THE CHOICE AT A GIVEN POINT IN TIME.  THAT THE CHOICE
MIGHT IN SOME CASES BE EASIER IF MADE LATER IS HARDLY A MATTER OF
CONSTITUTIONAL DIMENSION. 

THE COURT'S HOLDING THAT THE TENNESSEE RULE DEPRIVES THE DEFENDANT
OF THE "GUIDING HAND OF COUNSEL" AT EVERY STAGE OF THE PROCEEDINGS
FARES NO BETTER, AS MR. JUSTICE REHNQUIST CLEARLY DEMONSTRATES.  IT
AMOUNTS TO NOTHING MORE THAN THE ASSERTION THAT COUNSEL MAY NOT BE
RESTRICTED BY ORDINARY RULES OF EVIDENCE AND PROCEDURE IN PRESENTING AN
ACCUSED'S DEFENSE IF IT MIGHT BE MORE ADVANTAGEOUS TO PRESENT IT IN
SOME OTHER WAY.  A RULE FORBIDDING DEFENSE COUNSEL TO ASK LEADING
QUESTIONS OF THE DEFENDANT WHEN HE TAKES THE STAND MAY RESTRICT DEFENSE
COUNSEL IN HIS OPTIONS AND MAY IN MANY CASES BEAR ONLY REMOTE
RELATIONSHIP TO THE GOAL OF TRUTHFUL TESTIMONY.  YET NO ONE WOULD
SERIOUSLY CONTEND THAT SUCH A UNIVERSAL RULE OF PROCEDURE IS PROHIBITED
BY THE CONSTITUTION.  THE RULE THAT THE DEFENDANT WAIVES THE FIFTH
AMENDMENT PRIVILEGE AS TO ANY AND ALL RELEVANT MATTERS WHEN HE DECIDES
TO TAKE THE STAND CERTAINLY INHIBITS THE CHOICES AND OPTIONS OF
COUNSEL, YET THIS COURT HAS NEVER QUESTIONED SUCH A RULE AND REAFFIRMED
ITS VALIDITY ONLY LAST TERM.  SEE MCGAUTHA V. CALIFORNIA, 402 U.S.,AT
215.  COUNTLESS OTHER RULES OF EVIDENCE AND PROCEDURE OF EVERY STATE
MAY INTERFERE WITH THE "GUIDING HAND OF COUNSEL."  THE COURT DOES NOT
EXPLAIN WHY THE RULE HERE DIFFERS FROM THOSE OTHER RULES. 

PERHAPS THIS REFLECTS WHAT IS THE TRUE, IF UNSPOKEN, BASIS FOR THE
COURT'S DECISION; THAT IS, THAT IN THE MAJORITY'S VIEW THE TENNESSEE
RULE IS INVALID BECAUSE IT IS FOLLOWED PRESENTLY BY ONLY TWO STATES IN
OUR FEDERAL SYSTEM.  BUT DIFFERENCES IN CRIMINAL PROCEDURES AMONG OUR
STATES DO NOT PROVIDE AN OCCASION FOR JUDICIAL CONDEMNATION BY THIS
COURT. 

THIS IS NOT A CASE OR AN ISSUE OF GREAT IMPORTANCE, EXCEPT AS IT
ERODES THE IMPORTANT POLICY OF ALLOWING DIVERSITY OF METHOD AND
PROCEDURE TO THE STATES TO THE END THAT THEY CAN EXPERIMENT AND
INNOVATE, AND RETREAT IF THEY FIND THEY HAVE TAKEN A WRONG PATH.  LONG
AGO, JUSTICE BRANDEIS SPOKE OF THE NEED TO LET "A SINGLE COURAGEOUS
STATE" TRY WHAT OTHERS HAVE NOT TRIED OR WILL NOT TRY.  NEW STATE ICE
CO. V. LEIBMANN, 285 U.S. 262, 311 (1932) (DISSENTING OPINION); SEE FAY
V. NEW YORK, 332 U.S. 261, 296 (1947) (JACKSON, J.).  IN THE FALTERING
CONDITION OF OUR MACHINERY OF JUSTICE THIS IS A SINGULARLY
INAPPROPRIATE TIME TO THROTTLE THE DIVERSITY SO ESSENTIAL IN THE SEARCH
FOR IMPROVEMENT. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

THE COURT'S INVALIDATION OF THE TENNESSEE STATUTE CHALLENGED HERE IS
BASED UPON BOTH ITS STATED REPUGNANCE TO THE PRIVILEGE AGAINST SELF
INCRIMINATION AND ITS INFRINGEMENT OF COUNSEL'S RIGHT TO PLAN THE
PRESENTATION OF HIS CASE. 

WHILE IT IS POSSIBLE THAT THIS STATUTE REGULATING THE ORDER OF PROOF
IN CRIMINAL TRIALS MIGHT IN ANOTHER CASE RAISE ISSUES BEARING ON THE
PRIVILEGE AGAINST SELF-INCRIMINATION, ITS APPLICATION IN THIS CASE
CERTAINLY HAS NOT DONE SO.  PETITIONER BROOKS NEVER TOOK THE STAND, AND
IT IS THEREFORE DIFFICULT TO SEE HOW HIS RIGHT TO REMAIN SILENT WAS IN
ANY WAY INFRINGED BY THE STATE.  WHATEVER MAY BE THE OPERATION OF THE
STATUTE IN OTHER SITUATIONS, PETITIONER CANNOT ASSERT THAT IT INFRINGED
HIS PRIVILEGE AGAINST SELF-INCRIMINATION-- A PRIVILEGE WHICH HE
RETAINED INVIOLATE THROUGHOUT THE TRIAL. 

THE COURT'S ALTERNATIVE HOLDING THAT THE TENNESSEE STATUTE INFRINGES
THE RIGHT OF PETITIONER'S COUNSEL TO PLAN THE PRESENTATION OF HIS CASE
CREATES A FAR MORE DOMINANT ROLE FOR DEFENSE COUNSEL THAN THAT
INDICATED BY THE LANGUAGE OF THE CONSTITUTION.  WHILE CASES SUCH AS
GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), ESTABLISH THE FUNDAMENTAL
NATURE OF THE CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF COUNSEL, NO
CASE PREVIOUSLY DECIDED BY THIS COURT ELEVATES DEFENSE COUNSEL TO THE
ROLE OF IMPRESARIO WITH RESPECT TO DECISIONS AS TO THE ORDER IN WHICH
WITNESSES SHALL TESTIFY AT THE TRIAL. 

THIS COURT AND OTHER COURTS HAVE REPEATEDLY HELD THAT THE CONTROL OF
THE ORDER OF PROOF AT TRIAL IS A MATTER PRIMARILY ENTRUSTED TO THE
DISCRETION OF THE TRIAL COURT.  SEE, E.G., THIEDE V. UTAH TERRITORY,
159 U.S. 510, 519 (1895); NELSON V. UNITED STATES, 415 F.2D 483, 487
(CA5 1969), CERT. DENIED, 396 U.S. 1060 (1970); HOROWITZ V. BOKRON, 337
MASS. 739, 151 N.E.2D 480 (1958); SMALL V. STATE, 165 NEB. 381, 85
N.W.2D 712 (1957).  THE NOTION THAT THE SIXTH AMENDMENT ALLOWS DEFENSE
COUNSEL TO OVERRULE THE TRIAL JUDGE AS TO THE ORDER IN WHICH WITNESSES
SHALL BE CALLED STANDS ON ITS HEAD THE TRADITIONAL UNDERSTANDING OF THE
DEFENDANT'S RIGHT TO COUNSEL.  DEFENSE COUNSEL SITS AT THE SIDE OF THE
ACCUSED, NOT TO TAKE OVER THE CONDUCT OF THE TRIAL, BUT TO ADVISE THE
ACCUSED AS TO VARIOUS CHOICES AVAILABLE TO HIM WITHIN THE LIMITS OF
EXISTING STATE PRACTICE AND PROCEDURE. 

I COULD UNDERSTAND, THOUGH I WOULD NOT AGREE WITH, A HOLDING THAT
UNDER THESE CIRCUMSTANCES THE FOURTEENTH AMENDMENT CONFERRED A RIGHT
UPON THE DEFENDANT, COUNSELED OR NOT, TO DECIDE AT WHAT POINT DURING
THE PRESENTATION OF HIS CASE TO TAKE THE STAND.  BUT TO CAST THE
CONSTITUTIONAL ISSUE IN TERMS OF VIOLATION OF THE DEFENDANT'S RIGHT TO
COUNSEL SUGGESTS THAT DEFENSE COUNSEL HAS AN AUTHORITY OF
CONSTITUTIONAL DIMENSION TO DETERMINE THE ORDER OF PROOF AT TRIAL.  IT
IS INCONCEIVABLE TO ME THAT THE COURT WOULD PERMIT EVERY PREFERENCE OF
DEFENSE COUNSEL AS TO THE ORDER IN WHICH DEFENSE WITNESSES WERE TO BE
CALLED TO PREVAIL OVER A CONTRARY RULING OF THE TRIAL JUDGE IN THE
EXERCISE OF HIS TRADITIONAL DISCRETION TO CONTROL THE ORDER OF PROOF AT
TRIAL.  THE CRUCIAL FACT HERE IS NOT THAT COUNSEL WISHES TO HAVE A
WITNESS TAKE THE STAND AT A PARTICULAR TIME, BUT THAT THE DEFENDANT--
WHETHER ADVISED BY COUNSEL OR OTHERWISE-- WISHES TO DETERMINE AT WHAT
POINT DURING THE PRESENTATION OF HIS CASE HE DESIRES TO TAKE THE
STAND.  LOGICALLY THE BENEFIT OF TODAY'S RULING SHOULD BE AVAILABLE TO
A DEFENDANT CONDUCTING HIS OWN DEFENSE WHO HAS WAIVED THE RIGHT OF
COUNSEL, BUT SINCE THE COURT INSISTS ON PUTTING THE ISSUE IN TERMS OF
THE ADVICE OF COUNSEL, RATHER THAN IN TERMS OF DEFENSE CONTROL OVER THE
TIMING OF DEFENDANT'S APPEARANCE, THE APPLICATION OF TODAY'S HOLDING TO
THAT SITUATION IS BY NO MEANS CLEAR. 

THE TENNESSEE STATUTE IN QUESTION IS, AS THE COURT NOTES IN ITS
OPINION, BASED UPON AN ACCOMMODATION BETWEEN THE TRADITIONAL POLICY OF
SEQUESTERING PROSPECTIVE WITNESSES BEFORE THEY TESTIFY AND THE RIGHT OF
THE CRIMINAL DEFENDANT TO BE PRESENT DURING HIS TRIAL.  SINCE THE
DEFENDANT MAY NOT BE SEQUESTERED AGAINST HIS WILL WHILE OTHER WITNESSES
ARE TESTIFYING, THE STATE HAS PLACED A MORE LIMITED RESTRICTION ON THE
PRESENTATION OF HIS TESTIMONY.  THE DEFENDANT IS REQUIRED TO TESTIFY,
IF HE CHOOSES TO DO SO, AS THE FIRST WITNESS FOR THE DEFENSE.  THE
STATE APPLIES THE SAME RULE EVENHANDEDLY TO THE PROSECUTING WITNESS, IF
THERE BE ONE; HE, TOO, MUST TESTIFY FIRST.  WHILE IT IS PERFECTLY TRUE
THAT THE PROSECUTION IS GIVEN NO CONSTITUTIONAL RIGHT TO REMAIN SILENT,
THIS FACT DOES NOT DETRACT FROM THE EVIDENT FAIRNESS OF TENNESSEE'S
EFFORT TO ACCOMMODATE THE TWO CONFLICTING POLICIES. 

THE STATE RULE RESPONDS TO THE FEAR THAT INTERESTED PARTIES, IF
ALLOWED TO PRESENT THEIR OWN TESTIMONY AFTER OTHER DISINTERESTED
WITNESSES HAVE TESTIFIED, MAY WELL SHAPE THEIR VERSION OF EVENTS IN A
WAY INCONSISTENT WITH THEIR OATH AS WITNESSES.  THIS FEAR IS NOT
GROUNDLESS, NOR IS ITS IMPORTANCE DENIGRATED BY VAGUE GENERALITIES SUCH
AS THE STATEMENT THAT "OUR ADVERSARY SYSTEM REPOSES JUDGMENT OF THE
CREDIBILITY OF ALL WITNESSES IN THE JURY."  ANTE, AT 611.  ASSUREDLY
THE TRADITIONAL COMMON-LAW CHARGE TO THE JURY CONFIDES TO THAT BODY THE
DETERMINATION AS TO THE TRUTH OR FALSITY OF THE TESTIMONY OF EACH
WITNESS.  BUT THE FACT THAT THE JURY IS INSTRUCTED TO MAKE SUCH A
DETERMINATION IN REACHING ITS VERDICT HAS NEVER BEEN THOUGHT TO
MILITATE AGAINST THE DESIRABILITY, TO SAY NOTHING OF THE
CONSTITUTIONALITY, OF ADDITIONAL INHIBITIONS AGAINST PERJURY DURING THE
COURSE OF A TRIAL.  THE TRADITIONAL POLICY OF SEQUESTERING NONPARTY
WITNESSES, THE REQUIREMENT OF AN OATH ON THE PART OF ALL WITNESSES, AND
THE OPPORTUNITY AFFORDED FOR CROSS-EXAMINATION OF WITNESSES ARE BUT
EXAMPLES OF SUCH INHIBITIONS.  AS A MATTER OF CONSTITUTIONAL JUDGMENT
IT MAY BE SAID THAT THE EFFECTUATION OF THIS INTEREST HAS BEEN
ACCOMPLISHED BY TENNESSEE AT TOO HIGH A PRICE, BUT THE IMPORTANCE OF
THE INTEREST ITSELF CANNOT RATIONALLY BE DISPELLED BY LOOSE ASSERTIONS
ABOUT THE ROLE OF THE JURY. 

IN VIEW OF THE STRONG SANCTION IN HISTORY AND PRECEDENT FOR CONTROL
OF THE ORDER OF PROOF BY THE TRIAL COURT, I THINK THAT TENNESSEE'S
EFFORT HERE TO RESTRICT THE CHOICE OF THE DEFENDANT AS TO WHEN HE SHALL
TESTIFY, IN THE INTEREST OF MINIMIZING THE TEMPTATION TO PERJURY, DOES
NOT VIOLATE THE FOURTEENTH AMENDMENT.  I WOULD THEREFORE AFFIRM THE
JUDGMENT BELOW. 

JERRY H. SUMMERS ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

ROBERT E. KENDRICK, DEPUTY ATTORNEY GENERAL OF TENNESSEE, ARGUED THE
CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :






















FPC V. LOUISIANA POWER & LIGHT CO., 406 U.S. 621 


       FEDERAL POWER COMMISSION V. LOUISIANA POWER & LIGHT CO. ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 71-1016.  ARGUED APRIL 19, 1972-- DECIDED JUNE 7, 1972

           /0/ 


WHEN UNITED GAS PIPE LINE CO. (UNITED), A JURISDICTIONAL PIPELINE,
EXPERIENCED TEMPORARY SHORTAGES OF NATURAL GAS SUPPLY FORCING IT TO
REDUCE DELIVERIES TO ITS CONTRACT CUSTOMERS, THE FEDERAL POWER
COMMISSION (FPC) ASSERTED ITS JURISDICTION TO EFFECT A REASONABLE
CURTAILMENT PLAN COVERING DELIVERIES TO BOTH DIRECT-SALES CUSTOMERS AND
PURCHASERS FOR RESALE.  WHILE CURTAILMENT PROCEEDINGS WERE PENDING
BEFORE THE FPC, LOUISIANA POWER & LIGHT CO. (LP&L), A DIRECT-SALES
CUSTOMER OF UNITED, BROUGHT THIS ACTION IN THE DISTRICT COURT AGAINST
UNITED, SEEKING TO ENJOIN CURTAILMENT OF DELIVERIES TO LP&L'S PLANTS
PURSUANT TO ANY FPC-PROMULGATED PLANS, INCLUDING ANY UNDER FPC ORDER
NO. 431.  LP&L ALSO SOUGHT TO ENJOIN UNITED FROM SEEKING FPC
CERTIFICATION OF UNITED'S PREVIOUSLY INTRASTATE DELIVERIES THROUGH ITS
GREEN SYSTEM.  THE FPC INTERVENED, ASSERTING THAT BOTH MATTERS WERE
PENDING BEFORE IT AND ANY DECISION BY THE DISTRICT COURT WOULD
THEREFORE INVADE ITS PRIMARY JURISDICTION.  THE DISTRICT COURT
DISMISSED THE ACTION, HOLDING THAT THE FPC HAD JURISDICTION OF BOTH
PROCEEDINGS AND THAT LP&L HAD TO EXHAUST ITS ADMINISTRATIVE REMEDIES. 
THE COURT OF APPEALS REVERSED, HOLDING THAT THE FPC LACKED JURISDICTION
TO CURTAIL DELIVERIES TO DIRECT-SALES CUSTOMERS, SINCE SECTION 1(B) OF
THE NATIONAL GAS ACT MAKES THE ACT APPLICABLE ONLY TO SALES FOR
RESALE.  THE COURT OF APPEALS ALSO REVERSED THE DISTRICT COURT'S
DECISION ON THE GREEN SYSTEM, HOLDING THAT THE SYSTEM WAS WHOLLY
INTRASTATE.  HELD: 

1.  THE FPC HAS POWER TO REGULATE CURTAILMENT OF DIRECT INTERSTATE
SALES OF NATURAL GAS UNDER THE HEAD OF ITS "TRANSPORTATION"
JURISDICTION IN SEC. 1(B), AND THE PROHIBITION IN THE PROVISO CLAUSE OF
THAT PROVISION WITHHELD FROM FPC ONLY RATE-SETTING AUTHORITY WITH
RESPECT TO SUCH SALES.  PP. 631-647. 

2.  THE FPC HAD PRIMARY JURISDICTION TO DETERMINE WHETHER THE GREEN
SYSTEM WAS SUBJECT TO ITS AUTHORITY, AND THE COURT OF APPEALS ERRED IN
DECIDING THAT QUESTION.  SEE MYERS V. BETHLEHEM SHIPBUILDING CORP., 303
U.S. 41.  PP. 647-648. 

456 F.2D 326, REVERSED. 

BRENNAN J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL MEMBERS
JOINED EXCEPT STEWART, J., WHO TOOK NO PART IN THE DECISION OF THE
CASES, AND POWELL, J., WHO TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASES. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN APRIL 1971 THE FEDERAL POWER COMMISSION (FPC) PROMULGATED ITS
ORDER NO. 431 REQUIRING EVERY JURISDICTIONAL PIPELINE TO REPORT TO THE
FPC WHETHER CURTAILMENT OF ITS DELIVERIES TO CUSTOMERS WOULD BE
NECESSARY BECAUSE OF INADEQUATE SUPPLY OF NATURAL GAS.  A PIPELINE
ANTICIPATING THE NECESSITY FOR CURTAILMENT WAS REQUIRED TO FILE A
REVISED TARIFF TO CONTROL DELIVERIES TO ALL CUSTOMERS-- INDUSTRIAL
"DIRECT SALES" CUSTOMERS, PURCHASING GAS FOR THEIR OWN CONSUMPTION, AND
"RESALE" CUSTOMERS, PURCHASING GAS FOR DISTRIBUTION TO ULTIMATE
CONSUMERS. 

THE PRINCIPAL QUESTION HERE IS WHETHER THE PROVISO TO SEC. 1(B) OF
THE NATURAL GAS ACT, 52 STAT. 821, 15 U.S.C. 717, PROHIBITS THE FPC
FROM APPLYING ITS ORDER NO. 431 TO CURTAIL DIRECT-SALES DELIVERIES IN
TIMES OF NATURAL GAS SHORTAGE.  SECTION 1(B) PROVIDES: 

  "THE PROVISIONS OF THIS ACT SHALL APPLY TO THE TRANSPORTATION

  OF NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE

  COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC

  CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER

  USE, AND TO NATURAL-GAS COMPANIES ENGAGED IN SUCH TRANSPORTATION

  OR SALE, BUT SHALL NOT APPLY TO ANY OTHER TRANSPORTATION OR SALE

  OF NATURAL GAS OR TO THE LOCAL DISTRIBUTION OF NATURAL GAS OR TO

  THE FACILITIES USED FOR SUCH DISTRIBUTION OR TO THE PRODUCTION OR

GATHERING OF NATURAL GAS." 

A SUBSIDIARY QUESTION PRESENTED IS WHETHER THE DOCTRINE OF PRIMARY
JURISDICTION OBLIGED THE FEDERAL COURTS IN THIS CASE TO DEFER TO THE
FPC FOR AN INITIAL DETERMINATION OF FPC JURISDICTION TO CERTIFICATE A
PARTICULAR PIPELINE DELIVERY WHEN A CERTIFICATION PROCEEDING TO
DETERMINE THAT QUESTION WAS PENDING BEFORE THE COMMISSION. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD THAT THE PROVISO OF
SEC. 1(B) PROHIBITED APPLICATION OF FPC CURTAILMENT REGULATIONS TO
DIRECT SALES DELIVERIES, AND HELD, FURTHER, THAT NEITHER THAT COURT NOR
THE DISTRICT COURT WAS OBLIGED TO DEFER TO THE FPC'S PENDING
CERTIFICATION PROCEEDING.  456 F.2D 326 (CA5 1972).  WE GRANTED
CERTIORARI, 405 U.S. 973 (1972).  WE REVERSE. 

I 

RESPONDENT LOUISIANA POWER & LIGHT CO. (LP&L) GENERATES ELECTRICITY
AT STERLINGTON-ELECTRIC GENERATING STATION IN QUACHITA PARISH,
LOUISIANA, AND AT NINE-MILE POINT GENERATING STATION IN JEFFERSON
PARISH, LOUISIANA.  THE NATURAL GAS BURNED UNDER LP&L'S BOILERS AT BOTH
STATIONS IS PURCHASED FROM UNITED GAS PIPE LINE CO. (UNITED), A
PETITIONER IN NO. 71-1040, UNDER DIRECT-SALES CONTRACTS OF LONG
STANDING.  THE SALES TO STERLINGTON STATION ARE SALES OF INTERSTATE
GAS, INITIALLY CERTIFICATED BY THE FPC.  SALES TO NINE-MILE POINT
STATION HAD BEEN WHOLLY INTRASTATE GAS DELIVERED FROM UNITED'S
INTRASTATE "GREEN SYSTEM" WHEN, IN 1970, UNITED DIVERTED 2.6% OF THE
GAS FROM ITS INTERSTATE "BLACK SYSTEM" INTO THE INTRASTATE "GREEN
SYSTEM," AFTER WHICH UNITED SOUGHT FPC CERTIFICATION OF THE "GREEN
SYSTEM."  IN 1970 ALSO, UNITED, FROM CONCERN THAT ITS GAS SUPPLY DURING
THE 1970-1971 HEATING SEASON WOULD FALL SHORT OF DEMAND, SOUGHT A
DECLARATORY ORDER FROM THE FPC TO APPROVE A PROPOSED PROGRAM OF
CURTAILMENT OF NATURAL GAS DELIVERIES TO BOTH ITS DIRECT AND RESALE
CUSTOMERS.  THIS PROCEEDING CULMINATED IN AGREEMENT AMONG AFFECTED
CUSTOMERS UNDER WHICH FPC ALLOWED UNITED TO CARRY OUT ITS PROGRAM FOR
THE 1970-1971 WINTER. 

WHEN, HOWEVER, UNITED MADE A SUPPLEMENTAL FILING IN FEBRUARY 1971,
FOR A PROPOSED CURTAILMENT PROGRAM FOR THE 1971 SUMMER SEASON, LP&L, IN
MARCH 1971, FILED THIS DIVERSITY ACTION IN THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF LOUISIANA, ALLEGING THAT THE PROGRAM WAS A BREACH
OF ITS CONTRACTS WITH UNITED AND ASKING INJUNCTIVE RELIEF AGAINST ITS
IMPLEMENTATION.  LP&L ALSO ASKED FOR A JUDGMENT DECLARING THAT THE
"GREEN SYSTEM" WAS AN INTRASTATE SYSTEM, DELIVERIES FROM WHICH DID NOT
REQUIRE FPC CERTIFICATION.  THE FPC AND UNITED SOUGHT DISMISSAL OF THE
ACTION ON THE GROUND THAT A PRIOR DECISION BY THE DISTRICT COURT WOULD
BE DESTRUCTIVE OF THE FPC'S PRIMARY JURISDICTION SINCE THE FPC WAS, IN
FACT, ASSERTING ITS JURISDICTION OVER BOTH ISSUES AT THAT TIME AND WAS
PROMULGATING ITS ORDER NO. 431, AND UNITED, IN RESPONSE TO ORDER NO.
431, WAS FILING ITS THIRD CURTAILMENT PLAN. 

IN OPPOSITION TO THE MOTIONS TO DISMISS IN THE DISTRICT COURT, LP&L
ARGUED THAT THE FPC WAS WITHOUT JURISDICTION TO AUTHORIZE OR APPROVE
CURTAILMENT PROGRAMS AFFECTING DIRECT-SALES DELIVERIES AND WAS ALSO
WITHOUT JURISDICTION TO CURTAIL DELIVERIES TO NINE-MILE POINT STATION
BECAUSE THEY WERE LOCAL AND NOT INTERSTATE DELIVERIES.  ON JUNE 30,
1971, THE DISTRICT COURT DISMISSED THE ACTION, HOLDING THAT THE FPC HAD
JURISDICTION OF BOTH CURTAILMENT AND CERTIFICATION PROCEEDINGS AND THAT
LP&L HAD TO EXHAUST ITS ADMINISTRATIVE REMEDIES IN BOTH, 332 F.SUPP. 
692 (1971).  THE COURT OF APPEALS DECISION REVERSED THIS DISMISSAL

        II 

UNITED IS A "JURISDICTIONAL" PIPELINE /1/  PURCHASING GAS FROM
PRODUCERS IN TEXAS AND LOUISIANA AND SUPPLYING WHOLESALERS, DIRECT
SALES CUSTOMERS, AND OTHER PIPELINES.  UNITED SUPPLIES ULTIMATE
CONSUMERS THROUGHOUT THE EASTERN HALF OF THE UNITED STATES FROM TEXAS
TO MASSACHUSETTS WITH A PEAK-DAY COMMITMENT IN THE WINTER HEATING
MONTHS TOTALING ABOUT 6,000,000 THOUSAND CUBIC FEET (MCF). 

IN 1970, AS PART OF A PATTERN OF TEMPORARY AND CHRONIC NATURAL GAS
SHORTAGES THROUGHOUT THE NATION, /2/  UNITED FOUND ITSELF UNABLE TO
MEET ALL OF ITS CONTRACT COMMITMENTS DURING PEAK DEMAND PERIODS.  /3/
INDEED, ON DAYS OF GREATEST USE, UNITED EXPECTED TO FALL SHORT BY AS
MUCH AS 20% OR MORE.  /4/  IN OCTOBER 1970 UNITED FIRST PROMULGATED A
PROPOSED DELIVERY CURTAILMENT PLAN AND SOUGHT A DECLARATORY ORDER FROM
THE FPC THAT THE PLAN WAS CONSISTENT WITH UNITED'S OBLIGATIONS UNDER
ITS TARIFF AND DIRECT-SALES CONTRACTS.  /5/  MANY OF UNITED'S CONTRACTS
WITH ITS CUSTOMERS MADE SOME PROVISION FOR CURTAILMENT IN TIMES OF
TEMPORARY SHORTAGE, BUT THESE TERMS WERE COMPLEX AND WERE NOT IDENTICAL
IN ALL CONTRACTS OR IN UNITED'S TARIFF FILING WITH THE COMMISSION.  /6/
UNITED'S PROPOSED CURTAILMENT PLAN ESTABLISHED A PRIORITY SYSTEM OF
THREE GROUPS, CURTAILED ON THE BASIS OF END USE.  THESE THREE GROUPS
WERE, IN ORDER OF THE LOWEST PRIORITY AND CURTAILED FIRST, GAS USED FOR
INDUSTRIAL PURPOSES; INCLUDING GAS TO GENERATE ELECTRICITY FOR
INDUSTRIAL PURPOSES; GAS USED TO GENERATE ELECTRICITY CONSUMED BY
DOMESTIC CONSUMERS; AND GAS USED BY DOMESTIC CONSUMERS.  SEE UNITED GAS
PIPE LINE CO., F.P.C. OP. NO. 606, OCT. 5, 1971.  THE PLAN MADE NO
DISTINCTION BETWEEN DIRECT-SALES CUSTOMERS AND RESALE CUSTOMERS. 

THIS PLAN WAS OPPOSED BY LP&L AND OTHERS, PRIMARILY ON THE GROUND
THAT THE FPC HAD NO JURISDICTION TO CURTAIL DELIVERIES UNDER DIRECT
SALES CONTRACTS.  WHILE PRESERVING THEIR OBJECTIONS, ALL BUT ONE OF
UNITED'S CUSTOMERS /7/  AGREED TO A MODIFIED PLAN TO GO INTO EFFECT FOR
THE 1970-1971 WINTER SEASON WHILE THE PROCEEDINGS CONTINUED. 

DURING THIS SAME SEASON, MANY OTHER PIPELINES REPORTED SERIOUS
SHORTAGES AND APPLIED TO THE FPC FOR ASSISTANCE IN EFFECTING
CURTAILMENT PLANS.  IN RESPONSE, THE FPC PROMULGATED SEVERAL EMERGENCY
PROVISIONS FOR TEMPORARY MEASURES TO AVOID MAJOR DISRUPTIONS OF POWER
SUPPLIES.  ORDERS NOS. 402, 35 FED.REG.  7511, AND 402A, 35 FED.REG. 
8927, AUTHORIZED SHORT-TERM PURCHASES BY PIPELINES FACING SHORTAGES
FROM OTHER JURISDICTIONAL PIPELINES TO ENSURE THAT STORAGE FIELDS WERE
FILLED.  ORDER NO. 418, 35 FED.REG.  19173, AUTHORIZED SIMILAR
EMERGENCY PURCHASES FROM PRODUCERS WITHOUT FOLLOWING USUAL PROCEDURES. 

IT WAS BECAUSE THESE MEASURES WERE FOUND TO BE INSUFFICIENT THAT THE
FPC PROMULGATED ORDER NO. 431, 36 FED.REG.  7505.  THE ORDER
RECOMMENDED THAT IN FILING THE REQUIRED TARIFF REVISIONS,
"(CONSIDERATION SHOULD BE GIVEN TO THE CURTAILMENT OF VOLUMES
EQUIVALENT TO ALL INTERRUPTIBLE SALES AND TO THE CURTAILMENT OF LARGE
BOILER FUEL SALES WHERE ALTERNATE FUELS ARE AVAILABLE."  FINALLY, ORDER
NO. 431 PROVIDED: 

"JURISDICTIONAL PIPELINES HAVE THE RESPONSIBILITY IN THE FIRST
INSTANCE TO ADOPT A CURTAILMENT PROGRAM BY FILING APPROPRIATE TARIFFS. 
SUCH TARIFFS, IF APPROVED BY THE COMMISSION, WILL CONTROL IN ALL
RESPECTS NOTWITHSTANDING INCONSISTENT PROVISIONS IN SALES CONTRACTS,
JURISDICTIONAL AND NONJURISDICTIONAL, ENTERED INTO PRIOR TO THE DATE OF
THE APPROVAL OF THE TARIFF."  UNITED'S REVISED TARIFF PROGRAM FILED IN
COMPLIANCE WITH THIS ORDER IMMEDIATELY BECAME SUBJECT TO THE PENDING
HEARING FOR A DECLARATORY ORDER.  ON OCTOBER 5, 1971, THE FPC ANNOUNCED
ITS INTERIM DECISION, OP. NO. 606, FINDING JURISDICTION TO EFFECT A
CURTAILMENT PROGRAM FOR ALL CUSTOMERS, REVISING UNITED'S LATEST FILING
SLIGHTLY, AND REMANDING OTHER ISSUES IN THE PLAN TO A HEARING
EXAMINER.  ON NOVEMBER 2, 1971, UNITED'S PLAN, AS MODIFIED, WENT INTO
FULL EFFECT.  THE APPEAL OF LP&L AND OTHERS FROM THE FPC DECISION, OP.
NO. 606, IS PENDING IN THE COURT OF APPEALS FOR THE FIFTH CIRCUIT. 
/8/ 

ALSO, IN OCTOBER 1970, BASED ON THE INTRODUCTION OF THE INTERSTATE
GAS FROM ITS BLACK SYSTEM, UNITED SOUGHT CERTIFICATION UNDER SEC. 7(C)
/9/  FOR THE CONTINUED OPERATION OF THE PORTION OF ITS PIPELINE
FACILITIES IN LOUISIANA (THE GREEN SYSTEM) USED TO SUPPLY LP&L'S NINE
MILE POINT GENERATING STATION.  LP&L OPPOSED THE APPLICATION, ALLEGING
THAT THE PIPELINE WAS CONSTRUCTED AND OPERATED TO BE WHOLLY INTRASTATE,
AND THAT UNITED'S "ILLEGAL" INTRODUCTION OF A VERY SMALL QUANTITY OF
INTERSTATE GAS DID NOT CAUSE THE WHOLE SYSTEM TO COME UNDER COMMISSION
JURISDICTION. 

ON FEBRUARY 9, 1972, THE COMMISSION FOUND IN OP. NO. 610 THAT THE
GREEN SYSTEM WAS WITHIN ITS JURISDICTION AND THUS REQUIRED
CERTIFICATION; IT REMANDED THE PROCEEDINGS TO A TRIAL EXAMINER TO
DETERMINE IF THE CERTIFICATE SHOULD BE GRANTED UNDER THE "PUBLIC
CONVENIENCE AND NECESSITY" STANDARD OF SEC. 7. 

THE COURT OF APPEALS' REVERSAL OF THE DISTRICT COURT /10/  ON THE
CURTAILMENT ISSUE RESTED ON ITS VIEW THAT UNDER THE NATURAL GAS ACT "
. . . FPC HAS NO FORM OF CONTINUING CERTIFICATE JURISDICTION OVER
DIRECT SALES TO CUSTOMERS OF INTERSTATE PIPELINE COMPANIES.  IT HAS THE
INITIAL RIGHT TO ISSUE OR VETO A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY AND IT MUST GIVE ITS APPROVAL TO THE ABANDONMENT OF THE USE
OF THE CERTIFICATED FACILITIES, BUT BETWEEN THE TWO FUNCTIONS THE
EXPRESS EXEMPTION (IN THE PROVISO OF SEC. 1(B)) OF REGULATORY POWER
OVER SUCH CONSUMPTIVE SALES BARS AGENCY INTERVENTION."  456 F.2D, AT
338. 

THE COURT OF APPEALS' HOLDING THAT UNITED'S INJECTION OF INTERSTATE
GAS FROM ITS BLACK SYSTEM INTO THE THERETOFORE INTRASTATE GREEN SYSTEM
DID NOT ESTABLISH FPC JURISDICTION TO CERTIFICATE THE GREEN SYSTEM,
RESTED ON ITS FINDING THAT THE RECORD SHOWED THAT "THE FLOW OF GAS FROM
THE BLACK SYSTEM INTO THE GREEN SYSTEM IN THE CASE AT BAR IS OCCASIONAL
AND IRREGULAR, AS WELL AS MINIMAL.  THE GREEN SYSTEM, AS AN ENTIRE AND
SEPARATE UNIT, IS PHYSICALLY LOCATED AND FUNCTIONS ENTIRELY IN
LOUISIANA.  THEREFORE, THE UNDISPUTED FACTS SHOW THAT THE CHANNEL OF
CONSTANT FLOW IS AN INTRASTATE AND NOT AN INTERSTATE CHANNEL.  THE
REGULATION OF THE GREEN SYSTEM IS SUBSTANTIALLY AND ESSENTIALLY A
LOCALIZED MATTER COMMITTED TO LOUISIANA'S JURISDICTION."  456 F.2D, AT
339-340. 

        III 

THE NATURAL GAS ACT OF 1938 GRANTED FPC BROAD POWERS "TO PROTECT
CONSUMERS AGAINST EXPLOITATION AT THE HANDS OF NATURAL GAS
COMPLAINTS."  FPC V. HOPE NATURAL GAS CO., 320 U.S. 591, 610 (1944). 
SEE FPC V. TRANSCONTINENTAL GAS PIPE LINE CORP., 365 U.S. 1, 19 (1961);
SUNRAY MID-CONTINENT OIL CO. V. FPC, 364 U.S. 137, 147 (1960).  TO THAT
END, CONGRESS "MEANT TO CREATE A COMPREHENSIVE AND EFFECTIVE REGULATORY
SCHEME," PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMM'N, 332
U.S. 507, 520 (1947), OF DUAL STATE AND FEDERAL AUTHORITY.  ALTHOUGH
FEDERAL JURISDICTION WAS NOT TO BE EXCLUSIVE, FPC REGULATION WAS TO BE
BROADLY COMPLEMENTARY TO THAT RESERVED TO THE STATES, SO THAT THERE
WOULD BE NO "GAPS" FOR PRIVATE INTERESTS TO SUBVERT THE PUBLIC
WELFARE.  THIS CONGRESSIONAL BLUEPRINT HAS GUIDED JUDICIAL
INTERPRETATION OF THE BROAD LANGUAGE DEFINING FPC JURISDICTION, AND 

"WHEN A DISPUTE ARISES OVER WHETHER A GIVEN TRANSACTION IS WITHIN
THE SCOPE OF FEDERAL OR STATE REGULATORY AUTHORITY, WE ARE NOT INCLINED
TO APPROACH THE PROBLEM NEGATIVELY, THUS RAISING THE POSSIBILITY THAT A
'NO MAN'S LAND' WILL BE CREATED.  COMPARE GUSS V. UTAH LABOR BOARD, 353
U.S. 1.  THAT IS TO SAY, IN A BORDERLINE CASE WHERE CONGRESSIONAL
AUTHORITY IS NOT EXPLICIT WE MUST ASK WHETHER STATE AUTHORITY CAN
PRACTICABLY REGULATE A GIVEN AREA AND, IF WE FIND THAT IT CANNOT, THEN
WE ARE IMPELLED TO DECIDE THAT FEDERAL AUTHORITY GOVERNS."  FPC V.
TRANSCONTINENTAL GAS PIPE LINE CORP., SUPRA, AT 19-20. 

THIS LITIGATION POSES THE QUESTION WHETHER FPC HAS AUTHORITY TO
EFFECT ORDERLY CURTAILMENT PLANS INVOLVING BOTH DIRECT SALES AND SALES
FOR RESALE.  LP&L INSISTS THAT THE FPC HAS NO POWER TO INCLUDE DIRECT
SALES IN THESE PLANS.  TRANSCONTINENTAL COUNSELS INQUIRY INTO THE
NECESSARY CONSEQUENCES OF THAT CONTENTION IN TERMS OF THE SCOPE OF
FEDERAL AND STATE REGULATORY AUTHORITY IN THE PREMISES.     THIRTY
SEVEN PERCENT OF UNITED'S TOTAL SALES IN 1970 WERE DIRECT INDUSTRIAL
SALES.  UNDER LP & L'S ARGUMENT, THIS VOLUME WOULD BE WHOLLY EXEMPT
FROM ANY CURTAILMENT PLAN APPROVED BY THE FPC AND THUS UNITED'S RESALE
CUSTOMERS WOULD BE FORCED TO ACCEPT THE ENTIRE BURDEN OF SHARPLY
REDUCED VOLUMES WHILE DIRECT-SALES CUSTOMERS RECEIVED FULL CONTRACT
SERVICE.  THE ULTIMATE CONSUMERS THUS AFFECTED INCLUDE SCHOOLS,
HOSPITALS, AND HOMES COMPLETELY DEPENDENT ON A CONTINUED NATURAL GAS
SUPPLY FOR HEATING AND OTHER DOMESTIC USES.  THESE RESALE CONSUMERS
COULD BE CURTAILED BY AS MUCH AS 560,000 MCF ON COLD DAYS WITHOUT DIRE
CONSEQUENCES, BUT BURDENING THEM WITH THE FULL CURTAILMENT VOLUME WOULD
DEPRIVE THEM OF UP TO 1,500,000 MCF.     FROM A PRACTICAL POINT OF
VIEW, LP&L'S POSITION MAY THUS PRODUCE A SERIOUSLY INEQUITABLE SYSTEM
OF GAS DISTRIBUTION.  MANY DIRECT INDUSTRIAL USERS OF GAS REQUIRE ONLY
"INTERRUPTIBLE SERVICES," WHICH BY THE TERMS OF THEIR CONTRACTS ARE
RECOGNIZED TO BE OF SUCH MINIMAL IMPORTANCE TO THE USER THAT, UPON THE
HAPPENING OF CERTAIN EVENTS, THE SUPPLY CAN BE SHUT OFF ON LITTLE OR NO
NOTICE.  NEVERTHELESS, THE NEED FOR CURTAILMENT MAY NOT BE SUFFICIENT
TO TRIGGER THESE PROVISIONS OF THE CONTRACT AND INTERRUPTIBLE SERVICE
CUSTOMERS MAY BE ABLE TO DEMAND FULL CONTRACT GAS WHILE RESALE
CONSUMERS ARE BEING DRASTICALLY CURTAILED.  MANY OTHER DIRECT
INDUSTRIAL SALES CUSTOMERS HAVE ALTERNATIVE MEANS AVAILABLE AT LITTLE
OR NO ADDITIONAL COST, YET UNDER LP&L'S CONTENTION WILL BE ABLE TO
DEMAND THEIR CONTRACT VOLUMES WHILE HOMES, HOSPITALS, AND SCHOOLS
SUFFER FROM LACK OF ADEQUATE SERVICE. 

CAN STATE AUTHORITY PRACTICABLY REGULATE IN THIS AREA TO PREVENT
THIS INEQUITY AND HARDSHIP?  INSOFAR AS STATE PLANS PURPORT TO CURTAIL
DELIVERIES OF INTERSTATE GAS, PENNSYLVANIA V. WEST VIRGINIA, 262 U.S.
553 (1923), IS AUTHORITY THAT SUCH PLANS, WHEN THEY OPERATE TO WITHDRAW
A LARGE VOLUME OF GAS FROM AN ESTABLISHED INTERSTATE CURRENT WHEREBY IT
IS SUPPLIED TO CUSTOMERS IN OTHER STATES, WOULD CONSTITUTE A PROHIBITED
INTERFERENCE WITH INTERSTATE COMMERCE.  BUT EVEN TO THE EXTENT THE
STATES MAY CONSTITUTIONALLY PROMULGATE CURTAILMENT PLANS, THE
INEVITABLE RESULT WOULD BE VARIED REGULATORY PROGRAMS OF STATE COURTS
AND AGENCIES, INTERPRETING A COUNTLESS NUMBER OF DIFFERENT CONTRACTS
CONFLICTING RESULTS WOULD NECESSARILY PRODUCE ALLOCATIONS DETERMINED
SIMPLY BY THE ABILITY OF EACH CUSTOMER TO PUMP ITS DESIRED VOLUME FROM
A PIPELINE.  MOREOVER, IN SOME STATES, LOUISIANA FOR EXAMPLE, THE STATE
REGULATORY AGENCY IS FORBIDDEN TO REGULATE DIRECT-SALES CONTRACTS. 
/11/  BESIDES, A STATE AGENCY EMPOWERED TO REGULATE THESE CONTRACTS
WOULD BE OBLIGED TO REGULATE IN THE STATE, NOT THE NATIONAL INTEREST. 
/12/  CF. PENNSYLVANIA V. WEST VIRGINIA, SUPRA.  THE UNAVOIDABLE
CONFLICT BETWEEN PRODUCING STATES AND CONSUMING STATES WILL CREATE
CONTRADICTORY REGULATIONS THAT CANNOT POSSIBLY BE EQUITABLY RESOLVED BY
THE COURTS.  WITH THESE PROBLEMS IN MIND, THE DESIRABILITY OF UNIFORM
FEDERAL REGULATION IS ABUNDANTLY CLEAR.  NEVERTHELESS, AS THE COURT OF
APPEALS EMPHASIZED, 456 F.2D, AT 355, A NEED FOR FEDERAL REGULATION
DOES NOT ESTABLISH FPC JURISDICTION THAT CONGRESS HAS NOT GRANTED.  WE
TURN THEN TO ANALYSIS OF THE STATUTE TO DETERMINE WHETHER CONGRESS
WITHHELD, AS LP&L ARGUES, AUTHORITY FROM THE FPC TO APPLY ITS
CURTAILMENT REGULATIONS TO DIRECT SALES. 

IV 

IN SEC. 1(B) OF THE ACT, "(THREE THINGS AND THREE ONLY CONGRESS DREW
WITHIN ITS OWN REGULATORY POWER, DELEGATED BY THE ACT TO ITS AGENT, THE
FEDERAL POWER COMMISSION.  THESE WERE: (1) THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE; (2) ITS SALE IN INTERSTATE COMMERCE
FOR RESALE; AND (3) NATURAL GAS COMPANIES ENGAGED IN SUCH
TRANSPORTATION OR SALE."  PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC
SERVICE COMM'N, 332 U.S.,AT 516.  EACH OF THESE IS AN INDEPENDENT GRANT
OR JURISDICTION AND, THOUGH THE ACT'S APPLICATION TO "SALES" IS LIMITED
TO SALES OF INTERSTATE GAS FOR RESALE, THE ACT APPLIES TO INTERSTATE
"TRANSPORTATION" REGARDLESS OF WHETHER THE GAS TRANSPORTED IS
ULTIMATELY SOLD RETAIL OR WHOLESALE.  FPC V. EAST OHIO GAS CO., 338
U.S. 464, 468 (1950).  /13/ 

LP&L ARGUES THAT THE PROVISO IN SEC. 1(B) CREATES A COMPLETE
EXEMPTION OF DIRECT SALES FROM CURTAILMENT REGULATIONS.  /14/  THE
ANSWER IS THAT THE PROHIBITION OF THE PROVISO OF SEC. 1(B) WITHHELD
FROM FPC ONLY RATE SETTING AUTHORITY WITH RESPECT TO DIRECT SALES. 
CURTAILMENT REGULATIONS ARE NOT RATE-SETTING REGULATIONS BUT
REGULATIONS OF THE "TRANSPORTATION" OF NATURAL GAS AND THUS WITHIN FPC
JURISDICTION UNDER THE OPENING SENTENCE OF SEC. 1(B) THAT "(THE
PROVISIONS OF THIS ACT SHALL APPLY TO THE TRANSPORTATION OF NATURAL GAS
IN INTERESTATE COMMERCE.  . . . "  THE COURT OF APPEALS REJECTED THAT
CONSTRUCTION ON THE GROUND THAT UNDER IT THE "TRANSPORTATION"
JURISDICTION WOULD SWALLOW UP THE PROVISO'S EXEMPTION FOR DIRECT
SALES.  WE DISAGREE. 

THE MAJOR IMPETUS FOR THE CONGRESSIONAL GRANT OF SALES JURIDICTION
TO THE FPC WAS FURNISHED BY A FEDERAL TRADE COMMISSION STUDY OF THE
PIPELINE INDUSTRY IN 1935-1936.  /15/  THE STUDY SHOWED THAT INCREASING
CONCENTRATION IN THE INDUSTRY WAS PRODUCING VAST ECONOMIC POWER FOR THE
PIPELINES AND A SERIOUS THREAT OF UNREASONABLY HIGH PRICES FOR
CONSUMERS.  THIS THREAT WAS MOST ACUTE IN THE CASE OF SALES FOR RESALE
BECAUSE WHOLESALE DISTRIBUTORS AND THEIR CUSTOMERS HAD LITTLE ECONOMIC
CLOUT WITH WHICH TO OBTAIN EQUITABLE PRICES FROM THE PIPELINES.  STATE
POWER TO REGULATE RATES CHARGED FOR INTERSTATE SERVICE TO A CUSTOMER IN
ANOTHER STATE FOR RESALE WAS ALSO THOUGHT, WITHIN THIS COURT'S
DECISIONS, CONSTITUTIONALLY TO BE OUTSIDE THE REGULATORY POWER OF THE
STATES.  PUBLIC UTILITIES COMM'N V. ATTLEBORO STEAM & ELEC.  CO., 273
U.S. 83 (1927); MISSOURI V. KANSAS GAS CO., 265 U.S. 298 (1924). 

IN RESPONSE TO THIS REPORT AND PRESSURES FROM STATE REGULATORY
AGENCIES, CONGRESS ENACTED A FEDERAL "SALES" JURISDICTION IN THE
NATURAL GAS ACT, BY WHICH CONGRESS GRANTED RATE-SETTING AUTHORITY TO
THE COMMISSION OVER ALL INTERSTATE SALES FOR RESALE.  BUT AS THIS
COURT, IN PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMM'N, 252 U.S. 23
(1920), HAD SUSTAINED STATE AUTHORITY TO REGULATE RATES FOR "DIRECT"
SALES, AND, MOREOVER, THE NEED FOR FEDERAL AUTHORITY HERE WAS NOT
DEEMED ACUTE, CONGRESS WITHHELD RATE-SETTING JURISDICTION OVER DIRECT
SALES.  THAT RATE SETTING WAS THE ONLY SUBJECT MATTER COVERED BY
"SALES" JURISDICTION AND THE "DIRECT SALES" EXCEPTION IS CLEAR FROM THE
LEGISLATIVE HISTORY OF THE PROVISO.  THE ORIGINAL PHRASING OF THE
PROVISO WAS: 

"PROVIDED, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO AUTHORIZE
THE COMMISSION TO FIX RATES OR CHARGES FOR THE SALE OF NATURAL GAS
DISTRIBUTED LOCALLY IN LOW-PRESSURE MAINS OR FOR THE SALE OF NATURAL
GAS FOR INDUSTRIAL USE ONLY."  HEARING ON H.R. 11662 BEFORE A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
74TH CONG., 2D SESS., 1 (1936) THE PHRASING WAS CHANGED AND THE WORDS
"TO FIX RATES OR CHARGES" WERE SUBSEQUENTLY DELETED, BUT THE HOUSE
COMMITTEE REPORT CONFIRMS THAT THE PROVISO AS FINALLY PHRASED WAS
NEVERTHELESS MEANT TO BE RESTRICTED TO RATE SETTING.  H.R. REP. NO.
709, 75TH CONG., 1ST SESS., 4 (1937), STATES: 

     "IT WAS URGED IN CONNECTION WITH EARLIER BILLS THAT THERE

  SHOULD BE INSERTED AT THE END OF THIS SUBSECTION A PROVISO AS

  FOLLOWS: 

     "PROVIDED, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO

  AUTHORIZE THE COMMISSION TO FIX THE RATES OR CHARGES TO THE

  PUBLIC FOR THE SALE OF NATURAL GAS DISTRIBUTED LOCALLY.'  'IN

 ORDER TO AVOID MISUNDERSTANDING THE COMMITTEE THOUGHT IT

  NECESSARY TO OMIT THIS PROVISO FROM THE PRESENT BILL FOR THE

  FOLLOWING REASONS, EVEN THOUGH THERE IS ENTIRE AGREEMENT WITH THE

  INTENDED POLICY WHICH WOULD HAVE PROMPTED ITS INCLUSION:  FIRST,

  IT WOULD HAVE BEEN SURPLUSAGE IF INTERPRETED AS IT WAS INTENDED

  TO BE INTERPRETED, AND, SECOND, IT WOULD HAVE BEEN, IN ALL

  LIKELIHOOD, A SOURCE OF CONFUSION IF INTERPRETED IN ANY OTHER

  WAY.  FOR EXAMPLE, IT WAS FELT THAT IN THE EFFORT TO FIND A

  REASON FOR ITS INCLUSION IT MIGHT HAVE BEEN ARGUED THAT IT

  EXEMPTED SALES TO A PUBLICLY OWNED DISTRIBUTING COMPANY, AND SUCH

AN EXEMPTION IS NOT, OF COURSE, INTENDED.  IT IS BELIEVED THAT

  THE PURPOSES OF THIS PROVISO, ASSUMING THE NEED FOR ANY SUCH

  PROVISION, ARE FULLY COVERED IN THE PRESENT PROVISION BY THE

  LANGUAGE-- 'BUT SHALL NOT APPLY TO ANY OTHER SALES OF NATURAL

GAS.'" 

THE AUTHOR OF THE CHANGED VERSION, THE GENERAL SOLICITOR OF THE
NATIONAL ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS, CONFIRMED
THIS INTERPRETATION.  HEARING ON H.R. 4008, BEFORE THE HOUSE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE, 75TH CONG., 1ST SESS., 143. 

THUS, CONGRESS' GRANT OF SALES JURISDICTION AS TO SALES FOR RESALE
AND THE PROHIBITION AS TO DIRECT SALES WERE MEANT TO APPLY EXCLUSIVELY
TO RATE SETTING, AND IN NO WISE LIMITED THE BROAD BASE OF
"TRANSPORTATION" JURISDICTION GRANTED THE FPC.  THAT HEAD OF
JURISDICTION PLAINLY EMBRACES REGULATION OF THE QUANTITIES OF GAS THAT
PIPELINES MAY TRANSPORT, FOR IN THAT RESPECT CONGRESS CREATED "A
COMPREHENSIVE AND EFFECTIVE REGULATORY SCHEME," PANHANDLE EASTERN PIPE
LINE CO. V. PUBLIC SERVICE COMM'N, 332 U.S.,AT 520, TO "AFFORD
CONSUMERS A COMPLETE, PERMANENT AND EFFECTIVE BOND OF PROTECTION.  . .
. "  ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N, 360 U.S. 378, 388
(1959). 

"THEREFORE, WHEN WE ARE PRESENTED WITH AN ATTEMPT BY THE FEDERAL
AUTHORITY TO CONTROL A PROBLEM THAT IS NOT, BY ITS VERY NATURE, ONE
WITH WHICH STATE REGULATORY COMMISSIONS CAN BE EXPECTED TO DEAL, THE
CONCLUSION IS IRRESISTIBLE THAT CONGRESS DESIRED REGULATION BY FEDERAL
AUTHORITY RATHER THAN NONREGULATION."  FPC V. TRANSCONTINENTAL GAS PIPE
LINE CORP., 365 U.S.,AT 28. 

COMPREHENSIVE AND EQUITABLE CURTAILMENT PLANS FOR GAS TRANSPORTED IN
INTERSTATE COMMERCE, AS ALREADY MENTIONED, ARE PRACTICALLY BEYOND THE
COMPETENCE OF STATE REGULATORY AGENCIES.  CONGRESS WAS ALSO AWARE THAT
PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553 (1923), CASTS SERIOUS DOUBT
UPON THE CONSTITUTIONALITY OF STATE REGULATION OF SUCH PLANS.  THAT
DECISION WAS CONSIDERED IN THE DELIBERATIONS ON THE NATURAL GAS ACT AND
WAS CITED TO THE HOUSE COMMITTEE AS A REASON FOR FEDERAL REGULATION. 
HEARING ON H.R. 11662 BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, 74TH CONG., 2D SESS., 14 (1936). 

FINALLY, THIS COURT HAS ALREADY STATED ITS VIEW THAT CURTAILMENT
PLANS ARE ASPECTS OF FPC'S "TRANSPORTATION" AND NOT ITS "SALES"
JURISDICTION.  IN PANHANDLE EASTERN, 332 U.S.,AT 523, WE SAID:

"(THE MATTER OF INTERRUPTING SERVICE IS ONLY LARGELY RELATED . . .
TO TRANSPORTATION AND THUS WITHIN THE JURISDICTION OF THE FEDERAL POWER
COMMISSION TO CONTROL, IN ACCOMMODATION OF ANY CONFLICTING INTERESTS
AMONG VARIOUS STATES."  /16/

        V 

SINCE CURTAILMENT PROGRAMS FALL WITHIN THE FPC'S RESPONSIBILITIES
UNDER THE HEAD OF ITS "TRANSPORTATION" JURISDICTION, THE COMMISSION
MUST POSSESS BROAD POWERS TO DEVISE EFFECTIVE MEANS TO MEET THESE
RESPONSIBILITIES.  FPC AND OTHER AGENCIES CREATED TO PROTECT THE PUBLIC
INTEREST MUST BE FREE, "WITHIN THE AMBIT OF THEIR STATUTORY AUTHORITY,
TO MAKE THE PRAGMATIC ADJUSTMENTS WHICH MAY BE CALLED FOR BY PARTICULAR
CIRCUMSTANCES."  FPC V. NATURAL GAS PIPELINE CO., 315 U.S. 575, 586
(1942).  SECTION 16 OF THE ACT ASSURES THE FPC THE NECESSARY DEGREE OF
FLEXIBILITY IN PROVIDING THAT: 

     "THE COMMISSION SHALL HAVE POWER TO PERFORM ANY AND ALL ACTS,

  AND TO PRESCRIBE, ISSUE, MAKE, AMEND, AND RESCIND SUCH ORDERS,

  RULES, AND REGULATIONS AS IT MAY FIND NECESSARY OR APPROPRIATE TO

  CARRY OUT THE PROVISIONS OF THIS ACT.  . . . " 15 U.S.C. 717O. 

IN APPLYING THIS SECTION, WE HAVE HELD THAT "THE WIDTH OF
ADMINISTRATIVE AUTHORITY MUST BE MEASURED IN PART BY THE PURPOSES FOR
WHICH IT WAS CONFERRED.  . . . SURELY THE COMMISSION'S BROAD
RESPONSIBILITIES THEREFORE DEMAND A GENEROUS CONSTRUCTION OF ITS
STATUTORY AUTHORITY."  PERMIAN BASIN AREA RATE CASES, 390 U.S. 747, 776
(1968); SEE UNITED GAS PIPE LINE CO. V. FPC, 385 U.S. 83, 89-90
(1966). 

THE SUBSTANTIVE STANDARD GOVERNING FPC EVALUATION OF CURTAILMENT
PLANS IS FOUND IN SEC. 4(B) OF THE ACT: 

"NO NATURAL-GAS COMPANY SHALL, WITH RESPECT TO ANY

  TRANSPORTATION OR SALE OF NATURAL GAS SUBJECT TO THE JURISDICTION

  OF THE COMMISSION, (1) MAKE OR GRANT ANY UNDUE PREFERENCE OR

  ADVANTAGE TO ANY PERSON OR SUBJECT ANY PERSON TO ANY UNDUE

  PREJUDICE OR DISADVANTAGE, OR (2) MAINTAIN ANY UNREASONABLE

  DIFFERENCE IN RATES, CHARGES, SERVICE, FACILITIES, OR IN ANY

  OTHER RESPECT, EITHER AS BETWEEN LOCALITIES OR AS BETWEEN CLASSES

  OF SERVICE."  15 U.S.C. 717CB). 

TWO PROCEDURAL MECHANISMS ARE AVAILABLE TO ENFORCE THIS
ANTIDISCRIMINATORY PROVISION OF SEC. 4(B).  AS TO A TARIFF ALREADY ON
FILE AND IN EFFECT, THE FPC MAY PROCEED UNDER SEC. 5(A).  /17/  THE
SEC. 5(A) PROCEDURE HAS SUBSTANTIAL DISADVANTAGES, HOWEVER, RENDERING
IT UNSUITABLE FOR THE EVALUATION OF CURTAILMENT PLANS.  THE FPC MUST
AFFORD INTERESTED PARTIES A FULL HEARING ON THE REASONABLENESS OF THE
TARIFF BEFORE TAKING ANY REMEDIAL ACTION, AND, AS WE HAVE OBSERVED,
"THE DELAY INCIDENT TO DETERMINATION IN SEC 5 PROCEEDINGS THROUGH WHICH
INITIAL CERTIFICATED RATES (AS WELL AS "PRACTICES" AND "CONTRACTS") ARE
REVIEWABLE APPEARS NIGH INTERMINABLE."  ATLANTIC REFINING CO. V. PUBLIC
SERVICE COMM'N, 360 U.S.,AT 389.  /18/  IN ADDITION A PRESCRIBED
REMEDIAL ORDER CAN HAVE ONLY PROSPECTIVE APPLICATION.  FPC HAS
THEREFORE CHOSEN TO PROCESS CURTAILMENT PLANS UNDER SECS. 4(C), (D),
AND (E).  /19/  UNDER THESE PROVISIONS, A PIPELINE'S TARIFF AMENDMENTS
FILED WITH THE FPC GO INTO EFFECT IN 30 DAYS UNLESS SUSPENDED BY THE
COMMISSION.  IF A FILING IS CHALLENGED OR THE FPC OF ITS OWN MOTION
DEEMS IT APPROPRIATE, IT MAY SUSPEND THE AMENDED TARIFF FOR UP TO FIVE
MONTHS, AT THE END OF WHICH TIME THE AMENDED TARIFF BECOMES EFFECTIVE
PENDING THE COMPLETION OF HEARINGS.  IN THESE HEARINGS, THE PIPELINE
HAS THE BURDEN OF PROVING THAT ITS PLAN IS REASONABLE AND FAIR. 
ORDER NO. 431 MAKES FULL USE OF THE SEC. 4 PROCEDURES.  ALL PIPELINES
FACING SHORTAGES NECESSITATING CURTAILMENT ARE REQUIRED TO FILE
REASONABLE ALLOCATION SCHEMES AS AMENDMENTS TO THEIR EXISTING TARIFFS,
OR TO STATE THAT THE EXISTING TARIFFS ARE ADEQUATE.  WHEN EMERGENCY OR
OTHER CONDITIONS ARISE AND IT APPEARS DESIRABLE IN THE PUBLIC INTEREST
TO PLACE A PLAN INTO EFFECT, THE FPC MAY ACCEPT THE FILING, IMPLEMENT
IT IMMEDIATELY OR SUSPEND IT, AND EMPLOY THE PLAN AS A WORKING
GUIDELINE WHILE HEARINGS CONTINUE.  IN ADDITION TO THE FLEXIBILITY OF
THIS ARRANGEMENT, THE REQUIREMENT THAT PIPELINES SUBMIT PLANS ENABLES
THE FPC TO UTILIZE EACH PIPELINE'S UNIQUE KNOWLEDGE OF ITS CUSTOMERS'
NEEDS, ABILITY TO SUBSTITUTE OTHER FUEL SOURCES, AND OTHER RELEVANT
CONSIDERATIONS. 

THE COURT OF APPEALS HELD THAT, UNDER OUR DECISION IN FPC V.
TRANSCONTINENTAL GAS PIPE LINE CORP., 365 U.S.,AT 17, FPC AUTHORITY
OVER DIRECT-SALES CONTRACTS IS LIMITED TO A "VETO POWER" TO BE
EXERCISED ONLY IN CERTIFICATION PROCEEDINGS UNDER SEC. 7(C) AND
ABANDONMENT PROCEEDINGS UNDER SEC. 7(B).  WE REJECT THIS ARGUMENT ON
TWO GROUNDS.  FIRST, TRANSCONTINENTAL DEALT WITH FPC'S AUTHORITY TO
CONSIDER DIRECT-SALES RATES IN CERTIFICATION PROCEEDINGS.  WE THERE
NOTED THAT UNDER SEC. 1(B) FPC JURISDICTION OVER RATES WAS LIMITED. 
THE LITIGATION HERE, UNLIKE TRANSCONTINENTAL, DOES NOT INVOLVE RATES
AND THEREFORE THE PROVISION OF SEC. 1(B) IS WHOLLY INAPPLICABLE. 
SECONDLY, TRANSCONTINENTAL DEALT ONLY WITH FPC "VETO POWER" UNDER SEC.
7, AND IN NO WAY LIMITED FPC AUTHORITY UNDER SEC. 4(B) TO PREVENT
DISCRIMINATION AMONG A PIPELINE'S CUSTOMERS.  SINCE SEC. 4(B) DEALS
WITH "SERVICE," THE FPC MAY INVOKE IT TO DEAL WITH CURTAILMENT
PROGRAMS, WHETHER OR NOT IT COULD ALSO INVOKE SEC. 7 FOR THAT PURPOSE. 

AMICI HAVE ARGUED THAT PERMITTING THE PIPELINE'S TARIFF AMENDMENTS
TO TAKE EFFECT DESPITE CONTRARY TERMS IN EXISTING CONTRACTS IS
INCONSISTENT WITH OUR DECISION IN UNITED GAS PIPE LINE CO. V. MOBILE
GAS SERVICE CORP., 350 U.S. 332 (1956).  IN THAT CASE, HOWEVER, WE
DEALT WITH AN ATTEMPT BY A PIPELINE UNILATERALLY TO EFFECT A CHANGE IN
ITS CONTRACT TERMS BY MAKING A FILING UNDER SEC. 4.  IN THE PRESENT
CAUSE, THE ISSUE IS WHETHER THE FPC, ACTING UNDER THE HEAD OF ITS
TRANSPORTATION JURISDICTION AND ITS BROAD MANDATE UNDER SEC. 16, MAY
ORDER PIPELINES FACING SHORTAGES TO DEVELOP AND SUBMIT RATIONAL
CURTAILMENT ARRANGEMENTS.  OUR HOLDING IN MOBILE GAS SERVICE CORP. DOES
NOT GOVERN THE DECISION OF THIS ISSUE SINCE, AS WE OBSERVED IN THAT
CASE: 

"(DENYING TO NATURAL GAS COMPANIES THE POWER UNILATERALLY TO CHANGE
THEIR CONTRACTS IN NO WAY IMPAIRS THE REGULATORY POWERS OF THE
COMMISSION, FOR THE CONTRACTS REMAIN FULLY SUBJECT TO THE PARAMOUNT
POWER OF THE COMMISSION TO MODIFY THEM WHEN NECESSARY IN THE PUBLIC
INTEREST."  350 U.S.,AT 344. 

WE CONCLUDE THEREFORE THAT THE FPC HAS THE JURISDICTION ASSERTED
HERE AND THAT THE NATURAL GAS ACT FULLY AUTHORIZES THE METHOD CHOSEN BY
THE FPC FOR ITS EXERCISE. 

VI 

IN ADDITION TO HOLDING THAT THE PROVISO TO SEC. 1(B) PROHIBITED
CURTAILMENT OF GAS DELIVERED TO THE NINE-MILE POINT STATION, THE COURT
OF APPEALS HELD THAT THOSE DELIVERIES WERE NOT REGULABLE BY THE FPC
BECAUSE "THE FLOW OF GAS FROM THE BLACK SYSTEM INTO THE GREEN SYSTEM .
. . IS OCCASIONAL AND IRREGULAR, AS WELL AS MINIMAL," AND THAT "(THE
GREEN SYSTEM, AS AN ENTIRE AND SEPARATE UNIT, IS PHYSICALLY LOCATED AND
FUNCTIONS ENTIRELY IN LOUISIANA"; THE COURT CONCLUDED THAT, FOR THESE
REASONS, "(THE REGULATIONS OF THE GREEN SYSTEM IS SUBSTANTIALLY AND
ESSENTIALLY A LOCALIZED MATTER COMMITTED TO LOUISIANA'S JURISDICTION." 
456 F.2D,AT 339-340.  THE COURT OF APPEALS ERRED IN DECIDING THIS
QUESTION.  THE FPC HAD EXERCISED ITS PRIMARY JURISDICTION AND WAS
CONDUCTING PROCEEDINGS TO DETERMINE WHETHER THE GREEN SYSTEM WAS
SUBJECT TO ITS JURISDICTION.  IN THAT CIRCUMSTANCE, THE DISTRICT COURT
AND THE COURT OF APPEALS WERE OBLIGED TO DEFER TO THE FPC FOR THE
INITIAL DETERMINATION OF ITS JURISDICTION.  SEE MYERS V. BETHLEHEM
SHIPBUILDING CORP., 303 U.S. 41 (1938).  THE NEED TO PROTECT THE
PRIMARY AUTHORITY OF AN AGENCY TO DETERMINE ITS OWN JURISDICTION "IS
OBVIOUSLY GREATEST WHEN THE PRECISE ISSUE BROUGHT BEFORE A COURT IS IN
THE PROCESS OF LITIGATION THROUGH PROCEDURES ORIGINATING IN THE
(AGENCY).  WHILE THE (AGENCY'S) DECISION IS NOT THE LAST WORD, IT MUST
ASSUREDLY BE THE FIRST."  MARINE ENGINEERS BENEFICIAL ASSN. V.
INTERLAKE S.S. CO., 370 U.S. 173, 185 (1962).  REVIEW OF THE FPC
DECISION MAY PROCEED IN DUE COURSE PURSUANT TO SEC. 19(B) OF THE ACT,
15 U.S.C. 717RB).  WE SEE NO NEED TO MAKE THE SAME DISPOSITION AS TO
THE CURTAILMENT QUESTION SINCE THE COURT OF APPEALS HAD OP. NO. 606
BEFORE IT AND ACTED UPON THE OPINION IN REACHING ITS DECISION. 

REVERSED. 

MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THESE CASES. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

/0/ TOGETHER WITH NO. 71-1040, UNITED GAS PIPE LINE CO. ET AL. V.
LOUISIANA POWER & LIGHT CO. ET AL., ON CERTIORARI TO THE SAME COURT. 

/1/  A "JURISDICTIONAL" PIPELINE TRANSPORTS NATURAL GAS IN
INTERSTATE COMMERCE AND FOR THAT REASON IS SUBJECT TO FPC CERTIFICATION
JURISDICTION.  THE "JURISDICTIONAL" LABEL IS ALSO SOMETIMES USED TO
APPLY TO SALES, IN WHICH CASE IT REFERS TO INTERSTATE SALES FOR RESALE,
WHICH ARE SUBJECT TO COMMISSION RATE REGULATION. 

/2/  FPC STAFF REPORT NO. 2, NATIONAL GAS SUPPLY AND DEMAND 1971
1990 (1972): 

"THE EMERGENCE OF A NATURAL GAS SHORTAGE DURING THE PAST TWO YEARS
MARKS A HISTORIC TURNING POINT-- THE END OF NATURAL GAS INDUSTRY GROWTH
UNINHABITED BY SUPPLY CONSIDERATIONS.  NOT ONLY HAS THE NATION'S PROVEN
GAS RESERVE INVENTORY FOR THE LOWER 48 STATES BEEN SHRINKING FOR THE
PAST THREE YEARS, BUT MAJOR PIPELINE COMPANIES AND DISTRIBUTORS IN MOST
PARTS OF THE COUNTRY HAVE BEEN FORCED TO REFUSE REQUESTS FOR ADDITIONAL
GAS SERVICE FROM LARGE INDUSTRIAL CUSTOMERS AND FROM MANY NEW
CUSTOMERS.  FOR PRACTICAL SHORT-TERM PURPOSES WE ARE CONFRONTED WITH
THE FACT THAT CURRENT PROVEN RESERVES IN THE LOWER 48 STATES, AS
REPORTED BY THE AMERICAN GAS ASSOCIATION, HAVE DROPPED FROM 289.3
TRILLION CUBIC FEET IN 1967 TO 259.6 IN 1970, A 10.3 PERCENT DROP
WITHIN A THREE-YEAR PERIOD.  FURTHERMORE, APPROXIMATELY 95 PERCENT OF
THIS PROVEN RESERVE INVENTORY IS ALREADY COMMITTED TO GAS SALES
CONTRACTS AND IS THEREFORE UNAVAILABLE FOR SALES TO NEW CUSTOMERS OR
FOR INCREASED VOLUMES TO OLD CUSTOMERS."  ID., AT XI. 

/3/  DEMAND FOR NATURAL GAS FLUCTUATES SHARPLY FROM SEASON TO SEASON
AND FROM DAY TO DAY.  NATIONALLY, PEAK DAYS OCCUR IN WINTER HEATING
MONTHS.  FOR LP&L, HOWEVER, THE NEED FOR GAS IS GREATEST IN THE SUMMER
MONTHS, WHEN AIR CONDITIONING INCREASES ELECTRICITY CONSUMPTION. 

/4/  MANY OF THE FACTS ARE TAKEN FROM THE RECITALS IN THE PETITIONS
FOR CERTIORARI, WHICH DRAW UPON EVIDENCE PRESENTED BEFORE THE FPC IN
THE CURTAILMENT PROCEEDINGS.  LP&L HAS NOT CHALLENGED THEIR ACCURACY
EXCEPT TO ARGUE THAT NO SIGNIFICANT GAS SHORTAGE ACTUALLY EXISTS.  OUR
DECISION IN THIS CASE IN NO WAY LIMITS LP&L'S FREEDOM TO ARGUE ITS
POSITION AS TO THE FACTS ON THE APPEAL PENDING IN THE COURT OF
APPEALS. 

/5/  THE COMMISSION HAS AUTHORITY TO ISSUE DECLARATORY ORDERS UNDER
THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 554(E). 

/6/  THE RECORD IN THESE CASES DOES NOT CONTAIN ALL THE CONTRACT
TERMS DEALING WITH CURTAILMENT OF DELIVERIES.  UNITED'S TWO CONTRACTS
WITH LP & L UNDER CONSIDERATION IN THIS LITIGATION, HOWEVER, INDICATE
THAT THE TERMS VARY FROM YEAR TO YEAR AND CUSTOMER TO CUSTOMER SINCE
THESE TWO CONTRACTS THEMSELVES ESTABLISH SLIGHTLY DIFFERENT PRIORITY
SYSTEMS.  MOREOVER, LP&L INFORMS US THAT ITS CONTRACTS HAD TERMS
SLIGHTLY DIFFERENT FROM THOSE IN MOST OTHER DIRECT-SALES CONTRACTS. 

/7/  THE OBJECTING PARTY APPEALED THE DECISION OF THE FPC AND THAT
CASE IS NOW PENDING IN THE DISTRICT OF COLUMBIA. 

/8/  THE PETITIONS OF THE SOLICITOR GENERAL AND UNITED FOR REVIEW
HERE OF THE FPC DECISION PRIOR TO JUDGMENT OF THE COURT OF APPEALS WERE
DENIED.  405 U.S. 973 (1972). 

/9/  SECTION 7(C) PROVIDES: 

"NO NATURAL-GAS COMPANY OR PERSON WHICH WILL BE A NATURAL-GAS
COMPANY UPON COMPLETION OF ANY PROPOSED CONSTRUCTION OR EXTENSION SHALL
ENGAGE IN THE TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO THE
JURISDICTION OF THE COMMISSION, OR UNDERTAKE THE CONSTRUCTION OR
EXTENSION OF ANY FACILITIES THEREFOR, OR ACQUIRE OR OPERATE ANY SUCH
FACILITIES OR EXTENSIONS THEREOF, UNLESS THERE IS IN FORCE WITH RESPECT
TO SUCH NATURAL-GAS COMPANY A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY ISSUED BY THE COMMISSION AUTHORIZING SUCH ACTS OR
OPERATIONS.  . . . "  15 U.S.C. 717FC). 

/10/  ARGUMENT WAS HEARD IN THE FIFTH CIRCUIT IN NOVEMBER 1971, ONE
MONTH AFTER THE FPC DECISION IN NO. 606.  THE COURT OF APPEALS DECISION
WAS ANNOUNCED IN JANUARY 1972, ONE MONTH BEFORE THE FPC DECISION IN NO.
610. 

/11/  LA. CONST., ART. 6, SEC. 4. 

/12/  THE CONFLICT BETWEEN PRODUCING AND CONSUMING STATES OVER STATE
OR FEDERAL REGULATORY AUTHORITY IS HIGHLIGHTED IN THE CONTRAST BETWEEN
LOUISIANA'S AMICUS BRIEF IN THIS LITIGATION AND THE STATEMENT OF THE
CHAIRMAN OF THE NEW YORK PUBLIC SERVICE COMMISSION IN ANOTHER CASE. 
LOUISIANA, A PRODUCING STATE, SUBMITS: 

"HISTORICALLY, GAS PRODUCING STATES HAVE CERTAIN ADVANTAGES OVER
STATES WHICH DO NOT HAVE THEIR OWN GAS SUPPLY.  THEIR VERY PROXIMITY TO
THE SOURCE OF PRODUCTION ATTRACTS INDUSTRIES WHICH USE GAS AS THE RAW
MATERIAL WITHOUT WHICH THEIR PLANS COULD NOT OPERATE.  THE LOWER
TRANSPORTATION COSTS OF DELIVERING GAS TO OTHER INDUSTRIAL AND
COMMERCIAL USERS WITHIN THE STATE MAKES ITS USE PARTICULARLY ATTRACTIVE
FOR SUCH APPLICATIONS.  IT IS NOT SURPRISING, THEREFORE, THAT PRODUCING
STATES HAVE A HIGHER PROPORTION OF INDUSTRIAL-COMMERCIAL CONSUMPTION OF
TOTAL GAS CONSUMED AND OF FIRM GAS THAN CONSUMING STATES.  LOUISIANA
UTILIZES 84% OF THE TOTAL QUANTITY OF FIRM GAS SOLD IN THE STATE FOR
INDUSTRIAL AND POWER PLANT GENERATION PURPOSES, IN COMPARISON TO A
NATIONAL AVERAGE OF ONLY 37%. 

"LOUISIANA'S ECONOMY IS HEAVILY DEPENDENT UPON THE AVAILABILITY OF A
FIRM, RELIABLE AND UNINTERRUPTED SUPPLY OF NATURAL GAS.  STATEWIDE
INVESTMENT BY INDUSTRIAL CATEGORY CLEARLY REFLECTS THE PREDOMINANCE OF
PETROLEUM, REFINERIES AND CHEMICALS WHICH REPRESENTED $465,297,370 OR
76% OF A TOTAL INDUSTRIAL INVESTMENT OF $609,578,850 IN 1970.  APART
FROM THESE INDUSTRIES WHICH USE NATURAL GAS AS PROCESS GAS WITHOUT
WHICH THEIR PLANTS CANNOT FUNCTION, THE STATE'S ELECTRIC UTILITIES ARE
COMPLETELY DEPENDENT UPON NATURAL GAS AS FUEL FOR ELECTRIC GENERATORS. 

"THUS, THE ECONOMIC WELFARE OF THE STATE HINGES UPON THE CONTINUED
DELIVERY OF THE VOLUMES OF GAS IT RECEIVED AND USED PRIOR TO UNITED'S
CURTAILMENT AND UPON THE ABILITY TO DRAW UPON GREATER VOLUMES. 
OTHERWISE, ITS ECONOMY WILL BE FROZEN AT OR BELOW ITS PRESENT LEVEL. 
THIS IS NOT TRUE OF OTHER STATES IN WHICH NATURAL GAS PLAYS A
SUBSIDIARY RATHER THAN A DOMINANT ROLE IN THE OVERALL ECONOMY OF THE
STATE AND IN WHICH THE ELECTRICAL UTILITIES HAVE ALTERNATE POWER
SOURCES SUCH AS COAL, IMPORTED LIQUEFIED NATURAL GAS AND INEXPENSIVE
HYDROELECTRIC POWER."  BRIEF OF STATE OF LOUISIANA AMICUS CURIAE 2-3. 

AS OBSERVED IN FPC V. TRANSCONTINENTAL GAS PIPE LINE CORP., 365 U.S.
1 (1961), CONSUMING STATES PREFER FEDERAL REGULATION.  THE CHAIRMAN OF
THE NEW YORK PUBLIC SERVICE COMMISSION SUMMED UP THIS POSITION IN RE
CABOT GAS CORP., 16 P.U.R.(N.S.)  443 (1936): 

"THERE CAN BE BUT ONE OPINION AMONG THOSE WHO BELIEVE IN THE
CONSERVATION OF NATURAL RESOURCES.  THEY SHOULD BE DEVELOPED NOT TO
BENEFIT A FEW INDIVIDUALS BUT IN THE INTERESTS OF PUBLIC WELFARE
PRESENT AND FUTURE.  OUR NATURAL GAS RESOURCES OUGHT TO BE CONSERVED
AND THERE IS PROBABLY NO FIELD WHERE THE FEDERAL GOVERNMENT ACTING IN
THE INTERESTS OF THE ENTIRE COUNTRY AND TO PROTECT THE WELFARE OF THE
FUTURE COULD ACCOMPLISH MORE THAN IN THE NATURAL GAS INDUSTRY.  FROM A
CONSERVATION VIEWPOINT, I THOROUGHLY AGREE WITH COMMISSIONER BURRITT,
AND IF I COULD SEE HOW A DENIAL OF THE PRESENT PETITION WOULD WORK TO
THIS END, I WOULD VOTE TO REFUSE THE APPLICATION; BUT WILL SUCH DENIAL
PRODUCE THE DESIRED RESULTS? 

"THE FIELD FROM WHICH GAS IS TO BE TAKEN BY THE PETITIONER IS IN
NORTHERN PENNSYLVANIA AND SOUTHERN NEW YORK.  APPARENTLY, FAR MORE OF
THE GAS WILL COME FROM PENNSYLVANIA THAN FROM NEW YORK AND OVER THE
EXTRACTION OF GAS IN THE STATE OF PENNSYLVANIA, THIS COMMISSION HAS
PRACTICALLY NO CONTROL.  IT IS POSSIBLE FOR PENNSYLVANIA COMPANIES TO
TAKE ALL OF THE GAS FROM THIS FIELD UNLESS THE NEW YORK COMPANIES
REMOVE THE GAS BEFORE THE FIELD IS EXHAUSTED. 

"FURTHER, THE PUBLIC SERVICE COMMISSION HAS BEEN GIVEN NO ADEQUATE
AUTHORITY TO DETERMINE HOW THE NATURAL GAS RESOURCES OF THIS STATE, TO
SAY NOTHING OF THE RESOURCES OF PENNSYLVANIA, SHALL BE DEVELOPED.  WE
HAVE NO POWERS DIRECTLY TO CONTROL THE AMOUNT OF GAS THAT IS TAKEN FROM
ANY FIELD AND OUR INDIRECT POWERS ARE SO LIMITED THAT IT IS DOUBTFUL IF
MUCH COULD BE ACCOMPLISHED.  THE STATE OF NEW YORK RECEIVES FAR MORE
GAS FROM SOURCES LOCATED BEYOND ITS BOUNDARIES THAN IT EXPORTS TO ANY
ADJOINING STATE AND THE CONSERVATION OF NATURAL GAS RESOURCES IN THE
VARIOUS STATES CANNOT BE PROPERLY BROUGHT ABOUT EXCEPT THROUGH
VOLUNTARY ACTION OF THE STATES OR BY THE FEDERAL GOVERNMENT.  NEITHER
ONE IS YET OPERATIVE AND WHILE ATTENTION HAS BEEN GIVEN TO ELECTRIC
INTERSTATE COMMERCE, NO EFFECTIVE STEPS HAVE BEEN TAKEN TO CONSERVE OR
REGULATE THE DISTRIBUTION OF NATURAL GAS, WHERE IT IS SO URGENTLY
NEEDED.     "IN VIEW OF THE LACK OF AUTHORITY CONFERRED UPON THIS
COMMISSION TO CONSERVE NATURAL RESOURCES, THE QUESTION BECOMES
PRIMARILY WHAT WILL BE GAINED TO CONSUMERS IN THE STATE OF NEW YORK IF
THE PETITION IS DENIED.  IT IS STATED THAT ABOUT 80 OR 90 PER CENT OF
THE GAS FURNISHED BY THE PETITIONER WILL BE USED FOR INDUSTRIAL
PURPOSES AND THAT ONLY FROM 10 TO 20 PER CENT WILL GO TO THE GENERAL
PUBLIC, THE INFERENCE BEING THAT THE SAVING TO THE COMPANIES PURCHASING
THE GAS WILL GO TO ENRICH A FEW STOCKHOLDERS.  LET US ASSUME SUCH ARE
THE FACTS.  WHO WILL GAIN IF THOSE BENEFITED BY THE PETITION ARE
DEPRIVED OF THEIR PROFITS OR ADVANTAGES BY A DENIAL OF THE PETITION? 
THIS COMMISSION DOES NOT CONTROL THE USE THAT WILL BE MADE OF THE GAS
FROM THE FIELD TAPPED BY THE PETITIONER.  THERE ARE MANY OTHER
COMPANIES TAPPING THE SUPPLY AND WE HAVE NO MEANS OF DETERMINING WHERE,
WHEN, OR TO WHOM THE GAS WILL BE SOLD.  IF RESTRICTION IS IMPOSED ON
THE USE OF IT IN NEW YORK, IT MAY GO TO PENNSYLVANIA; AND IF THE
PETITIONER IS NOT ALLOWED TO SUPPLY THE AREAS WHICH IT IS PROPOSED TO
SERVE, THE GAS WILL GO TO OTHER AREAS AND THERE IS NO ASSURANCE THAT IT
WILL BE USED ANY MORE BENEFICIALLY FROM A PUBLIC VIEWPOINT THAN IT WILL
BE IF THE PETITION IS GRANTED. 

"AS STATED, I AM HEARTILY IN FAVOR OF THE CONSERVATION OF NATURAL GAS
AS WELL AS OTHER NATURAL RESOURCES; BUT IN THIS SPECIFIC CASE, WILL THE
GRANTING OR THE DENIAL OF THE PETITION WORK TO THE BENEFIT OF THE
PEOPLE OF NEW YORK?  THE BENEFIT TO THE AREA TO BE SUPPLIED BY THE
PETITIONER IS DEFINITE, IT IS KNOWN, IT IS SURE.  BUT IF THE PETITION
IS DENIED, WHO WILL BE BENEFITED?  THERE IS NO ASSURANCE UPON THIS
POINT.  THE ANSWER IS SPECULATIVE AND UNCERTAIN.  THERE IS NOTHING TO
ASSURE US THAT THE DENIAL OF THE PETITION WOULD CONSERVE THE GAS
SUPPLY.  IS IT NOT LIKELY THAT THE BENEFITS WOULD MERELY BE DIVERTED
FROM ONE GROUP OR ONE LOCALITY TO ANOTHER?" 

/13/  EAST OHIO DEALT WITH THE GRANT OF FPC JURISDICTION OVER
NATURAL GAS COMPANIES ENGAGED IN INTERSTATE TRANSPORTATION OR SALE. 
WHAT WE SAID THERE HAS RELEVANCE TO THE ISSUE OF THIS CASE: 

"RESPONDENTS CONTEND, HOWEVER, THAT THE WORD 'TRANSPORTATION' IN
SEC. 1(B) MUST BE CONSTRUED AS APPLYING ONLY TO COMPANIES ENGAGED IN
THE BUSINESS OF TRANSPORTING GAS IN INTERSTATE COMMERCE FOR HIRE OR FOR
SALES TO BE FOLLOWED BY RESALES, WHEREAS EAST OHIO DOES NEITHER.  THE
SHORT ANSWER IS THAT THE ACT'S LANGUAGE DID NOT EXPRESS ANY SUCH
LIMITATION.  DESPITE THE UNQUALIFIED LANGUAGE OF SEC. 1(B) MAKING THE
ACT APPLY TO 'TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE,'
RESPONDENTS ASK US TO QUALIFY THAT LANGUAGE BY APPLYING IT ONLY TO
BUSINESSES WHICH BOTH TRANSPORT AND SELL NATURAL GAS FOR RESALE.  THEY
RELY ON A SENTENCE IN THE DECLARATION OF POLICY, SEC. 1(A), REFERRING
TO 'THE BUSINESS OF TRANSPORTING AND SELLING NATURAL GAS.'  BUT THEIR
CONTENTION THAT THE WORD 'AND' IN THE POLICY PROVISION CREATES AN
UNSEVERABLE BOND IS COMPLETELY REFUTED BY THE CLEARLY DISJUNCTIVE
PHRASING OF SEC. 1(B) ITSELF.  AS WE POINTED OUT IN PANHANDLE EASTERN
PIPE LINE CO. V. PUBLIC SERVICE COMM'N, 332 U.S. 507, 516, SEC. 1(B)
MADE THE NATURAL GAS ACT APPLICABLE TO THREE SEPARATE THINGS:  '(1) THE
TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE; (2) ITS SALE IN
INTERSTATE COMMERCE FOR RESALE; AND (3) NATURAL GAS COMPANIES ENGAGED
IN SUCH TRANSPORTATION OR SALE.'  AND THROUGHOUT THE ACT
'TRANSPORTATION' AND 'SALE' ARE VIEWED AS SEPARATE SUBJECTS OF
REGULATION.  THEY HAVE INDEPENDENT AND EQUALLY IMPORTANT PLACES IN THE
ACT.  THUS, TO ADOPT RESPONDENTS' CONSTRUCTION WOULD UNDULY RESTRICT
THE COMMISSION'S POWER TO CARRY OUT ONE OF THE MAJOR POLICIES OF THE
ACT.  MOREOVER, THE INITIAL INTEREST OF CONGRESS IN REGULATION OF
TRANSPORTATION FACILITIES WAS REEMPHASIZED IN 1942 BY PASSAGE OF AN
AMENDMENT TO SEC. 7(C) OF THE ACT BROADENING THE COMMISSION'S POWERS
OVER THE CONSTRUCTION OR EXTENSION OF PIPE LINES.  56 STAT. 83.  THIS
AMENDMENT FOLLOWED A REPORT OF THE COMMISSION TO CONGRESS POINTING OUT
THAT WITHOUT AMENDMENT OF ACT VESTED THE COMMISSION WITH INADEQUATE
POWER TO MAKE 'ANY SERIOUS EFFORT TO CONTROL THE UNPLANNED CONSTRUCTION
OF NATURAL-GAS PIPE LINES WITH A VIEW TO CONSERVING ONE OF THE
COUNTRY'S VALUABLE BUT EXHAUSTIBLE ENERGY RESOURCES.'  WE HOLD THAT THE
WORD 'TRANSPORTATION' LIKE THE PHRASE 'INTERSTATE COMMERCE' APTLY
DESCRIBES THE MOVEMENTS OF GAS IN EAST OHIO'S HIGH-PRESSURE PIPE
LINES."  338 U.S. 464, 468-469 (1950) (FOOTNOTES OMITTED). 

/14/  IT IS WELL ESTABLISHED THE THE PROVISO WAS ADDED TO THE ACT
MERELY FOR CLARIFICATION AND WAS NOT INTENDED TO DEPRIVE FPC OF ANY
JURISDICTION OTHERWISE GRANTED BY SEC. 1(B).  FPC V. TRANSCONTINENTAL
GAS PIPE LINE CO., 365 U.S. 1 (1961); FPC V. EAST OHIO GAS CO., 338
U.S. 464 (1950).  THE HOUSE REPORT ON THE BILL DESCRIBED THIS SECOND
SENTENCE OF SEC. 1(B) AS FOLLOWS: 

"THE QUOTED WORDS ARE NOT ACTUALLY NECESSARY, AS THE MATTERS
SPECIFIED THEREIN COULD NOT BE SAID FAIRLY TO BE COVERED BY THE
LANGUAGE AFFIRMATIVELY STATING THE JURISDICTION OF THE COMMISSION, BUT
SIMILAR LANGUAGE WAS IN PREVIOUS BILLS, AND, RATHER THAN INVITE THE
CONTENTION, HOWEVER UNFOUNDED, THAT THE ELIMINATION OF THE NEGATIVE
LANGUAGE WOULD BROADEN THE SCOPE OF THE ACT, THE COMMITTEE HAS INCLUDED
IT IN THIS BILL."  H.R.REP.  NO. 709, 75TH CONG., 1ST SESS., 3 (1937). 

/15/  S. DOC. NO. 92, PT. 84-A, 70TH CONG., 1ST SESS., SUBMITTED
DEC. 31, 1935. 

/16/  IN PANHANDLE, THE COURT WAS ASKED TO HOLD THAT DIRECT
INDUSTRIAL SALES CUSTOMERS RECEIVING GAS IN INTERSTATE COMMERCE COULD
NOT BE SUBJECTED TO STATE REGULATORY CONTROL CONSISTENTLY WITH FPC
JURISDICTION IN THE AREA.  IN SUPPORT OF THIS POSITION, THE CUSTOMERS
ARGUED THAT STATE CONTROL OF CERTAIN MATTERS AFFECTING THE SALES COULD
NOT PRACTICALLY BE MANAGED BY STATE REGULATION.  NOT SURPRISINGLY, THE
PROBLEM OF CURTAILMENT WAS USED AS A PRIME EXAMPLE OF A MATTER
PRESENTING THESE DIFFICULTIES. 

/17/  SECTION 5(A) PROVIDES: 

"WHENEVER THE COMMISSION, AFTER A HEARING HAD UPON ITS OWN MOTION OR
UPON COMPLAINT OF ANY STATE, MUNICIPALITY, STATE COMMISSION, OR GAS
DISTRIBUTING COMPANY, SHALL FIND THAT ANY RATE, CHARGE, OR
CLASSIFICATION DEMANDED, OBSERVED, CHARGED, OR COLLECTED BY ANY NATURAL
GAS COMPANY IN CONNECTION WITH ANY TRANSPORTATION OR SALE OF NATURAL
GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR THAT ANY RULE,
REGULATION, PRACTICE, OR CONTRACT AFFECTING SUCH RATE, CHARGE, OR
CLASSIFICATION IS UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR
PREFERENTIAL, THE COMMISSION SHALL DETERMINE THE JUST AND REASONABLE
RATE, CHARGE, CLASSIFICATION, RULE, REGULATION, PRACTICE, OR CONTRACT
TO BE THEREAFTER OBSERVED AND IN FORCE, AND SHALL FIX THE SAME BY
ORDER:  PROVIDED, HOWEVER, THAT THE COMMISSION SHALL HAVE NO POWER TO
ORDER ANY INCREASE IN ANY RATE CONTAINED IN THE CURRENTLY EFFECTIVE
SCHEDULE OF SUCH NATURAL GAS COMPANY ON FILE WITH THE COMMISSION,
UNLESS SUCH INCREASE IS IN ACCORDANCE WITH A NEW SCHEDULE FILED BY SUCH
NATURAL GAS COMPANY; BUT THE COMMISSION MAY ORDER A DECREASE WHERE
EXISTING RATES ARE UNJUST, UNDULY DISCRIMINATORY, PREFERENTIAL,
OTHERWISE UNLAWFUL, OR ARE NOT THE LOWEST REASONABLE RATES."  15 U.S.C.
717DA). 

/18/  OF COURSE, EVEN WHEN CONDUCTING A SEC. 5 HEARING, THE
COMMISSION WOULD HAVE EMERGENCY AUTHORITY TO ISSUE INTERIM ORDERS
EFFECTING A CURTAILMENT PLAN.  FPC V. NATURAL GAS PIPELINE CO, 315 U.S.
575 (1942). 

/19/  THESE SECTIONS PROVIDED, 

"(C) UNDER SUCH RULES AND REGULATIONS AS THE COMMISSION MAY
PRESCRIBE, EVERY NATURAL-GAS COMPANY SHALL FILE WITH THE COMMISSION,
WITHIN SUCH TIME (NOT LESS THAN SIXTY DAYS FROM THE DATE THIS ACT TAKES
EFFECT) AND IN SUCH FORM AS THE COMMISSION MAY DESIGNATE, AND SHALL
KEEP OPEN IN CONVENIENT FORM AND PLACE FOR PUBLIC INSPECTION, SCHEDULES
SHOWING ALL RATES AND CHARGES FOR ANY TRANSPORTATION OR SALE SUBJECT TO
THE JURISDICTION OF THE COMMISSION, AND THE CLASSIFICATIONS, PRACTICES,
AND REGULATIONS AFFECTING SUCH RATES AND CHARGES, TOGETHER WITH ALL
CONTRACTS WHICH IN ANY MANNER AFFECT OR RELATE TO SUCH RATES, CHARGES,
CLASSIFICATIONS, AND SERVICES. 

"(D) UNLESS THE COMMISSION OTHERWISE ORDERS, NO CHANGE SHALL BE MADE
BY ANY NATURAL-GAS COMPANY IN ANY SUCH RATE, CHARGE, CLASSIFICATION, OR
SERVICE, OR IN ANY RULE, REGULATION, OR CONTRACT RELATING THERETO,
EXCEPT AFTER THIRTY DAYS' NOTICE TO THE COMMISSION AND TO THE PUBLIC. 
SUCH NOTICE SHALL BE GIVEN BY FILING WITH THE COMMISSION AND KEEPING
OPEN FOR PUBLIC INSPECTION NEW SCHEDULES STATING PLAINLY THE CHANGE OR
CHANGES TO BE MADE IN THE SCHEDULE OR SCHEDULES THEN IN FORCE AND THE
TIME WHEN THE CHANGE OR CHANGES WILL GO INTO EFFECT.  THE COMMISSION,
FOR GOOD CAUSE SHOWN, MAY ALLOW CHANGES TO TAKE EFFECT WITHOUT
REQUIRING THE THIRTY DAYS' NOTICE HEREIN PROVIDED FOR BY AN ORDER
SPECIFYING THE CHANGES SO TO BE MADE AND THE TIME WHEN THEY SHALL TAKE
EFFECT AND THE MANNER IN WHICH THEY SHALL BE FILED AND PUBLISHED. 

"(E) WHENEVER ANY SUCH NEW SCHEDULE IS FILED THE COMMISSION SHALL
HAVE AUTHORITY, EITHER UPON COMPLAINT OF ANY STATE, MUNICIPALITY, STATE
COMMISSION, OR GAS DISTRIBUTING COMPANY, OR UPON ITS OWN INITIATIVE
WITHOUT COMPLAINT, AT ONCE, AND IF IT SO ORDERS, WITHOUT ANSWER OR
FORMAL PLEADING BY THE NATURAL-GAS COMPANY, BUT UPON REASONABLE NOTICE,
TO ENTER UPON A HEARING CONCERNING THE LAWFULNESS OF SUCH RATE, CHARGE,
CLASSIFICATION, OR SERVICE; AND, PENDING SUCH HEARING THE DECISION
THEREON, THE COMMISSION, UPON FILING WITH SUCH SCHEDULES AND DELIVERING
TO THE NATURAL-GAS COMPANY AFFECTED THEREBY A STATEMENT IN WRITING OF
ITS REASONS FOR SUCH SUSPENSION, MAY SUSPEND THE OPERATION OF SUCH
SCHEDULE AND DEFER THE USE OF SUCH RATE, CHARGE, CLASSIFICATION, OR
SERVICE, BUT NOT FOR A LONGER PERIOD THAN FIVE MONTHS BEYOND THE TIME
WHEN IT WOULD OTHERWISE GO INTO EFFECT."  15 U.S.C. 717CC), (D), AND
(E). 

GORDON GOOCH ARGUED THE CAUSE FOR PETITIONER IN NO. 71-1016.  WITH
HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, SAMUEL HUNTINGTON,
LEO E. FORQUER, J. RICHARD TIANO, AND GEORGE W. MCHENRY.  WILLIAM C.
HARVIN ARGUED THE CAUSE FOR PETITIONERS IN NO. 71-1040.  WITH HIM ON
THE BRIEFS WERE WILLIAM R. CHOATE, PERRY O. BARBER, JR., JERON STEVENS,
W. DEVIER PIERSON, AND WILLIAM B. CASSIN. 

ANDREW P. CARTER ARGUED THE CAUSE FOR RESPONDENT LOUISIANA POWER &
LIGHT CO. WITH HIM ON THE BRIEF WAS THOMAS W. LEIGH. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY J. LEE RANKIN,
STANLEY BUCHSBAUM, AND FRANCIS I. HOWLEY FOR THE CITY OF NEW YORK; BY
PETER H. SCHIFF FOR THE PUBLIC SERVICE COMMISSION FOR THE STATE OF NEW
YORK; BY J. EVANS ATTWELL, CHRISTOPHER T. BOLAND, ROBERT O. KOCH, JOHN
J. MULLALLY, AND WILLIAM W. BRACKETT FOR THE PIPELINE INTERVENORS; BY
HOWARD E. WAHRENBROCK AND JOHN M. KUYKENDALL, JR., FOR MOBILE GAS
SERVICE CORP. ET AL.; BY BARBARA M. GUNTHER FOR BROOKLYN UNION GAS CO.;
AND BY RICHARD A. ROSAN AND DANIEL L. BELL, JR., FOR COLUMBIA GAS
TRANSMISSION CORP. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JOHN J.
MCKEITHEN, GOVERNOR, JACK P. F. GREMILLION, ATTORNEY GENERAL, FRED G.
BENTON, SR., AND ARNOLD D. BERKELEY FOR THE STATE OF LOUISIANA; BY PAT
MORAN FOR THE ARKANSAS PUBLIC SERVICE COMMISSION; BY MARTIN N. ERCK,
JOHN R. REBMAN, KIRBY ELLIS, SHERMAN S. POLAND, AND DANIEL F. COLLINS
FOR HUMBLE OIL & REFINING CO.; BY THOMAS G. JOHNSON FOR SHELL OIL CO.;
AND BY J. DONALD ANNETT, KIRK W. WEINERT, AND JOHN M. YOUNG FOR TEXACO
INC. C623 

BRIEFS OF AMICI CURIAE WERE FILED BY ALBERT G. NORMAN, JR., JOHN W.
HINCHEY, ASSISTANT ATTORNEY GENERAL OF GEORGIA, JOHN E. HOLTZINGER,
JR., AND ALLEN E. LOCKERMAN FOR ATLANTA GAS LIGHT CO. ET AL., AND BY
JOHN T. MILLER, JR., FOR MONSANTO CO. ET AL.
..END :
















UNITED STATES V. MIDWEST VIDEO CORP., 406 U.S. 649 


       UNITED STATES ET AL. V. MIDWEST VIDEO CORP.

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 71-506.  ARGUED APRIL 19, 1972-- DECIDED JUNE 7, 1972 


THE FEDERAL COMMUNICATIONS COMMISSION (FCC) PROMULGATED A RULE THAT
"NO CATV SYSTEM HAVING 3,500 OR MORE SUBSCRIBERS SHALL CARRY THE SIGNAL
OF ANY TELEVISION BROADCAST STATION UNLESS THE SYSTEM ALSO OPERATES TO
A SIGNIFICANT EXTENT AS A LOCAL OUTLET BY CABLECASTING (I.E.,
ORIGINATING PROGRAMS) AND HAS AVAILABLE FACILITIES FOR LOCAL
SERVICES."  UPON CHALLENGE OF RESPONDENT, AN OPERATOR OF CATV SYSTEMS
SUBJECT TO THE NEW REQUIREMENT, THE COURT OF APPEALS SET ASIDE THE
REGULATION ON THE GROUND THAT THE FCC HAD NO AUTHORITY TO ISSUE IT.
HELD:  THE JUDGMENT IS REVERSED.  PP. 659-675. 

441 F.2D 1322, REVERSED. 

MR. JUSTICE BRENNAN, JOINED BY MR. JUSTICE WHITE, MR. JUSTICE
MARSHALL, AND MR. JUSTICE BLACKMUN, CONCLUDED THAT: 

1.  THE RULE IS WITHIN THE FCC'S STATUTORY AUTHORITY TO REGULATE
CATV AT LEAST TO THE EXTENT "REASONABLY ANCILLARY TO THE EFFECTIVE
PERFORMANCE OF THE COMMISSION'S VARIOUS RESPONSIBILITIES FOR THE
REGULATION OF TELEVISION BROADCASTING," UNITED STATES V. SOUTHWESTERN
CABLE CO., 392 U.S. 157, 178.  PP. 659-670. 

2.  IN THE LIGHT OF THE RECORD IN THIS CASE, THERE IS SUBSTANTIAL
EVIDENCE THAT THE RULE, WITH ITS 3,500 STANDARD AND AS IT IS APPLIED
UNDER FCC GUIDELINES FOR WAIVER ON A SHOWING OF FINANCIAL HARDSHIP,
WILL PROMOTE THE PUBLIC INTEREST WITHIN THE MEANING OF THE
COMMUNICATIONS ACT OF 1934.  PP. 671-675. 

THE CHIEF JUSTICE CONCLUDED THAT UNTIL CONGRESS ACTS TO DEAL WITH
THE PROBLEMS BROUGHT ABOUT BY THE EMERGENCE OF CATV, THE FCC SHOULD BE
ALLOWED WIDE LATITUDE.  PP. 675-676. 

BRENNAN, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION
IN WHICH WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  BURGER, C. J.,
FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 675.  DOUGLAS, J.,
FILED A DISSENTING OPINION IN WHICH STEWART, POWELL, AND REHNQUIST,
JJ., JOINED, POST, P. 677. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, AND MR.
JUSTICE BLACKMUN JOIN. 

COMMUNITY ANTENNA TELEVISION (CATV) WAS DEVELOPED LONG AFTER THE
ENACTMENT OF THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1064, AS AMENDED,
47 U.S.C. 151 ET SEQ., AS AN AUXILIARY TO BROADCASTING THROUGH THE
RETRANSMISSION BY WIRE OF INTERCEPTED TELEVISION SIGNALS TO VIEWERS
OTHERWISE UNABLE TO RECEIVE THEM BECAUSE OF DISTANCE OR LOCAL TERRAIN. 
/1/  IN UNITED STATES V. SOUTHWESTERN CABLE CO., 392 U.S. 157 (1968),
WHERE WE SUSTAINED THE JURISDICTION OF THE FEDERAL COMMUNICATIONS
COMMISSION TO REGULATE THE NEW INDUSTRY, AT LEAST TO THE EXTENT
"REASONABLY ANCILLARY TO THE EFFECTIVE PERFORMANCE OF THE COMMISSION'S
VARIOUS RESPONSIBILITIES FOR THE REGULATION OF TELEVISION
BROADCASTING," ID., AT 178, WE OBSERVED THAT THE GROWTH OF CATV SINCE
THE ESTABLISHMENT OF THE FIRST COMMERCIAL SYSTEM IN 1950 HAS BEEN
NOTHING LESS THAN "'EXPLOSIVE.'"  ID., AT 163.  /2/  THE POTENTIAL OF
THE NEW INDUSTRY TO AUGMENT COMMUNICATION SERVICES NOW AVAILABLE IS
EQUALLY PHENOMENAL.  /3/  AS WE SAID IN SOUTHWESTERN, ID., AT 164, CATV
"(PROMISES) FOR THE FUTURE TO PROVIDE A NATIONAL COMMUNICATIONS SYSTEM,
IN WHICH SIGNALS FROM SELECTED BROADCASTING CENTERS WOULD BE
TRANSMITTED TO METROPOLITAN AREAS THROUGHOUT THE COUNTRY."  MOREOVER,
AS THE COMMISSION HAS NOTED, "THE EXPANDING MULTICHANNEL CAPACITY OF
CABLE SYSTEMS COULD BE UTILIZED TO PROVIDE A VARIETY OF NEW
COMMUNICATIONS SERVICES TO HOMES AND BUSINESSES WITHIN A COMMUNITY,"
SUCH AS FACSIMILE REPRODUCTION OF DOCUMENTS, ELECTRONIC MAIL DELIVERY,
AND INFORMATION RETRIEVAL.  NOTICE OF PROPOSED RULEMAKING AND NOTICE OF
INQUIRY, 15 F.C.C.2D 417, 419-420 (1968).  PERHAPS MORE IMPORTANT, CATV
SYSTEMS CAN THEMSELVES ORIGINATE PROGRAMS, OR "CABLECAST"-- WHICH
MEANS, THE COMMISSIONER HAS FOUND, THAT CATV CAN "(INCREASE) THE NUMBER
OF LOCAL OUTLETS FOR COMMUNITY SELF-EXPRESSION AND (AUGMENT) THE
PUBLIC'S CHOICE OF PROGRAMS AND TYPES OF SERVICE, WITHOUT USE OF
BROADCAST SPECTRUM . . . ."  ID., AT 421. 

RECOGNIZING THIS POTENTIAL, THE COMMISSION, SHORTLY AFTER OUR
DECISION IN SOUTHWESTERN, INITIATED A GENERAL INQUIRY "TO EXPLORE THE
BROAD QUESTION OF HOW BEST TO OBTAIN, CONSISTENT WITH THE PUBLIC
INTEREST STANDARD OF THE COMMUNICATIONS ACT, THE FULL BENEFITS OF
DEVELOPING COMMUNICATIONS TECHNOLOGY FOR THE PUBLIC, WITH PARTICULAR
IMMEDIATE REFERENCE TO CATV TECHNOLOGY . . . ."  ID., AT 417.  IN
PARTICULAR, THE COMMISSION TENTATIVELY CONCLUDED, AS PART OF A MORE
EXPANSIVE PROGRAM FOR THE REGULATION OF CATV, /4/  "THAT, FOR NOW AND
IN GENERAL, CATV PROGRAM ORIGINATION IS IN THE PUBLIC INTEREST," ID.,
AT 421, AND SOUGHT COMMENTS ON A PROPOSAL "TO CONDITION THE CARRIAGE OF
TELEVISION BROADCAST SIGNALS (LOCAL OR DISTANT) UPON A REQUIREMENT THAT
THE CATV SYSTEM ALSO OPERATE TO A SIGNIFICANT EXTENT AS A LOCAL OUTLET
BY ORIGINATING."  ID., AT 422.  AS FOR ITS AUTHORITY TO IMPOSE SUCH A
REQUIREMENT, THE COMMISSION STATED THAT ITS "CONCERN WITH CATV CARRIAGE
OF BROADCAST SIGNALS IS NOT JUST A MATTER OF AVOIDANCE OF ADVERSE
EFFECTS, BUT EXTENDS ALSO TO REQUIRING CATV AFFIRMATIVELY TO FURTHER
STATUTORY POLICIES."  IBID. 

ON THE BASIS OF COMMENTS RECEIVED, THE COMMISSION ON OCTOBER 24,
1969, ADOPTED A RULE PROVIDING THAT "NO CATV SYSTEM HAVING 3,500 OR
MORE SUBSCRIBERS SHALL CARRY THE SIGNAL OF ANY TELEVISION BROADCAST
STATION UNLESS THE SYSTEM ALSO OPERATES TO A SIGNIFICANT EXTENT /5/  AS
A LOCAL OUTLET BY CABLECASTING /6/  AND HAS AVAILABLE FACILITIES FOR
LOCAL PRODUCTION AND PRESENTATION OF PROGRAMS OTHER THAN AUTOMATED
SERVICES.  47 CFR 74.1111(A).  /7/  IN A REPORT ACCOMPANYING THIS
REGULATION, THE COMMISSION STATED THAT THE TENTATIVE CONCLUSIONS OF ITS
EARLIER NOTICE OF PROPOSED RULEMAKING 

"RECOGNIZE THE GREAT POTENTIAL OF THE CABLE TECHNOLOGY TO FURTHER
THE ACHIEVEMENT OF LONG-ESTABLISHED REGULATORY GOALS IN THE FIELD OF
TELEVISION BROADCASTING BY INCREASING THE NUMBER OF OUTLETS FOR
COMMUNITY SELF-EXPRESSION AND AUGMENTING THE PUBLIC'S CHOICE OF
PROGRAMS AND TYPES OF SERVICES . . . THEY ALSO REFLECT OUR VIEW THAT A
MULTI-PURPOSE CATV OPERATION COMBINING CARRIAGE OF BROADCAST SIGNALS
WITH PROGRAM ORIGINATION AND COMMON CARRIER SERVICES, /8/  MIGHT BEST
EXPLOIT CABLE CHANNEL CAPACITY TO THE ADVANTAGE OF THE PUBLIC AND
PROMOTE THE BASIC PURPOSE FOR WHICH THIS COMMISSION WAS CREATED:
'REGULATING INTERSTATE AND FOREIGN COMMERCE IN COMMUNICATION BY WIRE
AND RADIO SO AS TO MAKE AVAILABLE, SO FAR AS POSSIBLE, TO ALL PEOPLE OF
THE UNITED STATES A RAPID, EFFICIENT, NATIONWIDE, AND WORLDWIDE WIRE
AND RADIO COMMUNICATION SERVICE WITH ADEQUATE FACILITIES AT REASONABLE
CHARGES . . . ' (SEC. 1 OF THE COMMUNICATIONS ACT).  /9/ AFTER FULL
CONSIDERATION OF THE COMMENTS FILED BY THE PARTIES, WE ADHERE TO THE
VIEW THAT PROGRAM ORIGINATION ON CATV IS IN THE PUBLIC INTEREST."  /10/
FIRST REPORT AND ORDER, 20 F.C.C.2D 201, 202 (1969). 

THE COMMISSION FURTHER STATED, ID., AT 208-209: 

"THE USE OF BROADCAST SIGNALS HAS ENABLED CATV TO FINANCE THE
CONSTRUCTION OF HIGH CAPACITY CABLE FACILITIES.  IN REQUIRING IN RETURN
FOR THESE USES OF RADIO THAT CATV DEVOTE A PORTION OF THE FACILITIES TO
PROVIDING NEEDED ORIGINATION SERVICE, WE ARE FURTHERING OUR STATUTORY
RESPONSIBILITY TO 'ENCOURAGE THE LARGER AND MORE EFFECTIVE USE OF RADIO
IN THE PUBLIC INTEREST'  (SEC. 303(G)).  /11/  THE REQUIREMENT WILL
ALSO FACILITATE THE MORE EFFECTIVE PERFORMANCE OF THE COMMISSION'S DUTY
TO PROVIDE A FAIR, EFFICIENT, AND EQUITABLE DISTRIBUTION OF TELEVISION
SERVICE TO EACH OF THE SEVERAL STATES AND COMMUNITIES (SEC. 307(B)),
/12/  IN AREAS WHERE WE HAVE BEEN UNABLE TO ACCOMPLISH THIS THROUGH
BROADCAST MEDIA."  /13/ 

UPON THE CHALLENGE OF RESPONDENT MIDWEST VIDEO CORP., AN OPERATOR OF
CATV SYSTEMS SUBJECT TO THE NEW CABLECASTING REQUIREMENT, THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT SET ASIDE THE REGULATION
ON THE GROUND THAT THE COMMISSION "IS WITHOUT AUTHORITY TO IMPOSE" IT.
441 F.2D 1322, 1328 (1971).  /14/  "THE COMMISSION'S POWER (OVER CATV)
. . . ," THE COURT EXPLAINED, "MUST BE BASED ON THE COMMISSION'S RIGHT
TO ADOPT RULES THAT ARE REASONABLY ANCILLARY TO ITS RESPONSIBILITIES IN
THE BROADCASTING FIELD," ID., AT 1326-- A STANDARD THAT THE COURT
THOUGHT THE COMMISSION'S REGULATION "GOES FAR BEYOND."  ID., AT 1327. 
/15/  THE COURT'S OPINION MAY ALSO BE UNDERSTOOD TO HOLD THE REGULATION
INVALID AS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE THAT IT WOULD SERVE
THE PUBLIC INTEREST.  "THE COMMISSION REPORT ITSELF SHOWS,"  THE COURT
SAID, "THAT UPON THE BASIS OF THE RECORD MADE, IT IS HIGHLY SPECULATIVE
WHETHER THERE IS SUFFICIENT EXPERTISE OR INFORMATION AVAILABLE TO
SUPPORT A FINDING THAT THE ORIGINATION RULE WILL FURTHER THE PUBLIC
INTEREST."  ID., AT 1328.  "ENTERING INTO THE PROGRAM ID., AT 1327, AND
"(A) HIGH PROBABILITY EXISTS THAT CABLECASTING WILL NOT BE SELF
SUPPORTING," THAT THERE WILL BE A "SUBSTANTIAL INCREASE" IN CATV
SUBSCRIPTION FEES, AND THAT "IN SOME INSTANCES" CATV OPERATORS WILL BE
DRIVEN OUT OF BUSINESS.  IBID.  /16/  WE GRANTED CERTIORARI.  404 U.S.
1014 (1972).  WE REVERSE. 

        I 

IN 1966 THE COMMISSION PROMULGATED REGULATIONS THAT, IN GENERAL,
REQUIRED CATV SYSTEMS (1) TO CARRY, UPON REQUEST AND IN A SPECIFIED
ORDER OF PRIORITY WITHIN THE LIMITS OF THEIR CHANNEL CAPACITY, THE
SIGNALS OF BROADCAST STATIONS INTO WHOSE SERVICE AREA THEY BROUGHT
COMPETING SIGNALS; (2) TO AVOID, UPON REQUEST, THE DUPLICATION ON THE
SAME DAY OF LOCAL STATION PROGRAMING; AND (3) TO REFRAIN FROM BRINGING
NEW DISTANT SIGNALS INTO THE 100 LARGEST TELEVISION MARKETS EXCEPT UPON
A PRIOR SHOWING THAT THAT SERVICE WOULD BE CONSISTENT WITH THE PUBLIC
INTEREST.  SEE SECOND REPORT AND ORDER, 2 F.C.C.2D 725 (1966).  IN
ASSESSING THE COMMISSION'S JURISDICTION OVER CATV AGAINST THE BACKDROP
OF THESE REGULATIONS, /17/  WE FOCUSED IN SOUTHWESTERN CHIEFLY ON SEC.
2(A) OF THE COMMUNICATIONS ACT, 48 STAT. 1064, AS AMENDED, 47 U.S.C.
152(A), WHICH PROVIDES IN PERTINENT PART:  "THE PROVISIONS OF THIS
(ACT) SHALL APPLY TO ALL INTERSTATE AND FOREIGN COMMUNICATION BY WIRE
OR RADIO . . . , WHICH TO ALL PERSONS ENGAGED WITHIN THE UNITED STATES
IN SUCH COMMUNICATION . . . "  IN VIEW OF THE ACT'S DEFINITIONS OF
"COMMUNICATION BY WIRE" AND "COMMUNICATION BY RADIO,"  /18/ THE
INTERSTATE CHARACTER OF CATV SERVICES, /19/  AND THE EVIDENCE OF
CONGRESSIONAL INTENT THAT "(THE COMMISSION WAS EXPECTED TO SERVE AS THE
'SINGLE GOVERNMENT AGENCY' WITH 'UNIFIED JURISDICTION' AND 'REGULATORY
POWER OVER ALL FORMS OF ELECTRICAL COMMUNICATION, WHETHER BY TELEPHONE,
TELEGRAPH, CABLE, OR RADIO,'" 392 U.S.,AT 167-168 (FOOTNOTES OMITTED),
WE HELD THAT SEC. 2(A) AMPLY COVERS CATV SYSTEMS AND OPERATIONS.  WE
ALSO HELD THAT SEC. 2(A) IS ITSELF A GRANT OF REGULATORY POWER AND NOT
MERELY A PRESCRIPTION OF THE FORMS OF COMMUNICATION TO WHICH THE ACT'S
OTHER PROVISIONS GOVERNING COMMON CARRIERS AND BROADCASTERS APPLY: 

"WE CANNOT (WE SAID) CONSTRUE THE ACT SO RESTRICTIVELY. 

NOTHING IN THE LANGUAGE OF SEC. (2(A)), IN THE SURROUNDING

  LANGUAGE, OR IN THE ACT'S HISTORY OR PURPOSES LIMITS THE

  COMMISSION'S AUTHORITY TO THOSE ACTIVITIES AND FORMS OF

  COMMUNICATION THAT ARE SPECIFICALLY DESCRIBED BY THE ACT'S OTHER

  PROVISIONS.  . . . CERTAINLY CONGRESS COULD NOT IN 1934 HAVE

  FORESEEN THE DEVELOPMENT OF COMMUNITY ANTENNA TELEVISION SYSTEMS,

  BUT IT SEEMS TO US THAT IT WAS PRECISELY BECAUSE CONGRESS WISHED

  'TO MAINTAIN, THROUGH APPROPRIATE ADMINISTRATIVE CONTROL, A GRIP

  ON THE DYNAMIC ASPECTS OF RADIO TRANSMISSION,'  F.C.C. V.

  POTTSVILLE BROADCASTING CO., (309 U.S.), AT 138, THAT IT

  CONFERRED UPON THE COMMISSION A 'UNIFIED JURISDICTION' AND 'BROAD

  AUTHORITY.'  THUS, '(UNDERLYING THE WHOLE (COMMUNICATIONS ACT) IS

  RECOGNITION OF THE RAPIDLY FLUCTUATING FACTORS CHARACTERISTIC OF

  THE EVOLUTION OF BROADCASTING AND OF THE CORRESPONDING

  REQUIREMENT THAT THE ADMINISTRATIVE PROCESS POSSESS SUFFICIENT

  FLEXIBILITY TO ADJUST ITSELF TO THESE FACTORS.'  (IBID.) CONGRESS

  IN 1934 ACTED IN A FIELD THAT WAS DEMONSTRABLY 'BOTH NEW AND

  DYNAMIC,' AND IT THEREFORE GAVE THE COMMISSION 'A COMPREHENSIVE

  MANDATE,' WITH 'NOT NIGGARDLY BUT EXPANSIVE POWERS.'  NATIONAL

  BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 219.  WE HAVE

  FOUND NO REASON TO BELIEVE THAT SEC. (2) DOES NOT, AS ITS TERMS

  SUGGEST, CONFER REGULATORY AUTHORITY OVER 'ALL INTERSTATE . . .

  COMMUNICATION BY WIRE OR RADIO.'"  ID., AT 172-173 (FOOTNOTES

  OMITTED). 

THIS CONCLUSION, HOWEVER, DID NOT END THE ANALYSIS, FOR SEC. 2(A)
DOES NOT IN AND OF ITSELF PRESCRIBE ANY OBJECTIVES FOR WHICH THE
COMMISSION'S REGULATORY POWER OVER CATV MIGHT PROPERLY BE EXERCISED. 
WE ACCORDINGLY WENT ON TO EVALUATE THE REASONS FOR WHICH THE COMMISSION
HAD ASSERTED JURISDICTION AND FOUND THAT "THE COMMISSION HAS REASONABLY
CONCLUDED THAT REGULATORY AUTHORITY OVER CATV IS IMPERATIVE IF IT IS TO
PERFORM WITH APPROPRIATE EFFECTIVENESS CERTAIN OF ITS OTHER
RESPONSIBILITIES."  ID., AT 173.  IN PARTICULAR, WE FOUND THAT THE
COMMISSION HAD REASONABLY DETERMINED THAT "'THE UNREGULATED EXPLOSIVE
GROWTH OF CATV,'" ESPECIALLY THROUGH "ITS IMPORTATION OF DISTANT
SIGNALS INTO THE SERVICE AREAS OF LOCAL STATIONS" AND THE RESULTING
DIVISION OF AUDIENCES AND REVENUES, THREATENED TO "DEPRIVE THE PUBLIC
OF THE VARIOUS BENEFITS OF (THE) SYSTEM OF LOCAL BROADCASTING STATIONS"
THAT THE COMMISSION WAS CHARGED WITH DEVELOPING AND OVERSEEING UNDER
SEC. 307(B) OF THE ACT.  /20/  ID., AT 175.  WE THEREFORE CONCLUDED,
WITHOUT EXPRESSING ANY VIEW "AS TO THE COMMISSION'S AUTHORITY, OR FOR
ANY OTHER PURPOSES," THAT THE COMMISSION DOES HAVE JURISDICTION OVER
CATV "REASONABLY ANCILLARY TO THE EFFECTIVE PERFORMANCE OF (ITS)
VARIOUS RESPONSIBILITIES FOR THE REGULATION OF TELEVISION BROADCASTING
. . . (AND) MAY, FOR THESE PURPOSES, ISSUE 'SUCH RULES AND REGULATIONS
AND PRESCRIBE SUCH RESTRICTIONS AND CONDITIONS, NOT INCONSISTENT WITH
LAW,' AS 'PUBLIC CONVENIENCE, INTEREST, OR NECESSITY REQUIRES.'"  ID.,
AT 178 (QUOTING SEC. 303(R) OF THE ACT, 50 STAT. 191, 47 U.S.C.
303(R)). 

THE PARTIES NOW BEFORE US DO NOT DISPUTE THAT IN LIGHT OF
SOUTHWESTERN CATV TRANSMISSIONS ARE SUBJECT TO THE COMMISSION'S
JURISDICTION AS "INTERSTATE . . . COMMUNICATION BY WIRE OR RADIO"
WITHIN THE MEANING OF SEC. 2(A) EVEN INSOFAR AS THEY ARE LOCAL
CABLECASTS.  /21/  THE CONTROVERSY, INSTEAD, CENTERS ON WHETHER THE
COMMISSION'S PROGRAM-ORIGINATION RULE IS "REASONABLY ANCILLARY TO THE
EFFECTIVE PERFORMANCE OF (ITS) VARIOUS RESPONSIBILITIES FOR THE
REGULATION OF TELEVISION BROADCASTING."  /22/  WE HOLD THAT IT IS. 

AT THE OUTSET WE MUST NOTE THAT THE COMMISSION'S LEGITIMATE CONCERN
IN THE REGULATION OF CATV IS NOT LIMITED TO CONTROLLING THE COMPETITIVE
IMPACT CATV MAY HAVE ON BROADCAST SERVICES.  SOUTHWESTERN REFERS TO THE
COMMISSION'S "VARIOUS RESPONSIBILITIES FOR THE REGULATION OF TELEVISION
BROADCASTING."  THESE ARE CONSIDERABLY MORE NUMEROUS THAN SIMPLY
ASSURING THAT BROADCAST STATIONS OPERATING IN THE PUBLIC INTEREST DO
NOT GO OUT OF BUSINESS.  MOREOVER, WE MUST AGREE WITH THE COMMISSION
THAT ITS "CONCERN WITH CATV AFFIRMATIVELY TO FURTHER STATUTORY
POLICIES."  SUPRA, AT 653.  SINCE THE AVOIDANCE OF ADVERSE EFFECTS IS
ITSELF THE FURTHERANCE OF STATUTORY POLICIES, NO SENSIBLE DISTINCTION
EVEN IN THEORY CAN BE DRAWN ALONG THOSE LINES.  MORE IMPORTANT, CATV
SYSTEMS, NO LESS THAN BROADCAST STATIONS, SEE, E.G., FEDERAL RADIO
COMM'N V. NELSON BROS. CO., 289 U.S. 266 (1933) (DELETION OF A
STATION), MAY ENHANCE AS WELL AS IMPAIR THE APPROPRIATE PROVISION OF
BROADCAST SERVICES.  CONSEQUENTLY, TO DEFINE THE COMMISSION'S POWER IN
TERMS OF THE PROTECTION, AS OPPOSED TO THE ADVANCEMENT, OF BROADCASTING
OBJECTIVES WOULD ARTIFICIALLY CONSTRICT THE COMMISSION IN THE
ACHIEVEMENT OF ITS STATUTORY PURPOSES AND BE INCONSISTENT WITH OUR
RECOGNITION IN SOUTHWESTERN "THAT IT WAS PRECISELY BECAUSE CONGRESS
WISHED 'TO MAINTAIN, THROUGH APPROPRIATE ADMINISTRATIVE CONTROL, A GRIP
ON THE DYNAMIC ASPECT OF RADIO TRANSMISSION,' . . . THAT IT CONFERRED
UPON THE COMMISSION A 'UNIFIED JURISDICTION' AND 'BROAD AUTHORITY.'" 
SUPRA, AT 660-661.  /23/ 

THE VERY REGULATIONS THAT FORMED THE BACKDROP FOR OUR DECISION IN
SOUTHWESTERN DEMONSTRATE THIS POINT.  THOSE BROADCAST SERVICES FROM
BEING UNDERMINED BY UNREGULATED CATV GROWTH.  AT THE SAME TIME, THE
COMMISSION RECOGNIZED THAT "CATV SYSTEMS . . . HAVE ARISEN IN RESPONSE
TO PUBLIC NEED AND DEMAND FOR IMPROVED TELEVISION SERVICE AND PERFORM
VALUABLE PUBLIC SERVICES IN THIS RESPECT."  SECOND REPORT AND ORDER, 2
F.C.C.2D 725, 745 (1966).  /24/  ACCORDINGLY, THE COMMISSION'S EXPRESS
PURPOSE WAS NOT 

"TO DEPRIVE THE PUBLIC OF THESE IMPORTANT BENEFITS OR TO RESTRICT
THE ENRICHED PROGRAMING SELECTION WHICH CATV MAKES AVAILABLE.  RATHER,

  OUR GOAL HERE IS TO INTEGRATE THE CATV SERVICE INTO THE NATIONAL
TELEVISION STRUCTURE IN SUCH

  A WAY AS TO PROMOTE MAXIMUM TELEVISION SERVICE TO ALL PEOPLE OF
THE UNITED STATES (SECS. 1 AND

  303(G) OF THE ACT (NN. 9 AND 11, SUPRA)), BOTH THOSE WHO ARE
CABLE VIEWERS AND THOSE DEPENDENT

  ON OFF-THE-AIR SERVICE.  THE NEW RULES . . . ARE THE MINIMUM
MEASURES WE BELIEVE TO BE

 ESSENTIAL TO INSURE THAT CATV CONTINUES TO PERFORM ITS VALUABLE
SUPPLEMENTARY ROLE WITHOUT

  UNDULY DAMAGING OR IMPEDING THE GROWTH OF TELEVISION BROADCAST
SERVICE."  ID., AT

745-746.  /25/ IN IMPLEMENTATION OF THIS APPROACH CATV SYSTEMS WERE
REQUIRED TO CARRY LOCAL BROADCAST STATION SIGNALS TO ENCOURAGE
DIVERSIFIED PROGRAMING SUITABLE TO THE COMMUNITY'S NEEDS AS WELL AS TO
PREVENT A DIVERSION OF AUDIENCES AND ADVERTISING REVENUES.  /26/  THE
DUPLICATION OF LOCAL STATION PROGRAMING WAS ALSO FORBIDDEN FOR THE
LATTER PURPOSE, BUT ONLY ON THE SAME DAY AS THE LOCAL BROADCAST SO AS
"TO PRESERVE, TO THE EXTENT PRACTICABLE, THE VALUABLE PUBLIC
CONTRIBUTION OF CATV IN PROVIDING WIDER ACCESS TO NATIONWIDE PROGRAMING
AND A WIDER SELECTION OF PROGRAMS ON ANY PARTICULAR DAY."  ID., AT
747.  FINALLY, THE DISTANT-IMPORTATION RULE WAS ADOPTED TO ENABLE THE
COMMISSION TO REACH A PUBLIC-INTEREST DETERMINATION WEIGHING THE
ADVANTAGES AND DISADVANTAGES OF THE PROPOSED SERVICE ON THE FACTS OF
EACH INDIVIDUAL CASE.  SEE ID., AT 776, 781-782.  IN SHORT, THE
REGULATORY AUTHORITY ASSERTED BY THE COMMISSION IN 1966 AND GENERALLY
SUSTAINED BY THIS COURT IN SOUTHWESTERN WAS AUTHORITY TO REGULATE CATV
WITH A VIEW NOT MERELY TO PROTECT BUT TO PROMOTE THE OBJECTIVES FOR
WHICH THE COMMISSION HAD BEEN ASSIGNED JURISDICTION OVER BROADCASTING. 

IN THIS LIGHT THE CRITICAL QUESTION IN THIS CASE IS WHETHER THE
COMMISSION HAS REASONABLY DETERMINED THAT ITS ORIGINATION RULE WILL
"FURTHER THE ACHIEVEMENT OF THE LONG-ESTABLISHED REGULATORY GOALS IN
THE FIELD OF TELEVISION BROADCASTING BY INCREASING THE NUMBER OF
OUTLETS FOR COMMUNITY SELF-EXPRESSION AND AUGMENTING THE PUBLIC'S
CHOICE OF PROGRAMS AND TYPES OF SERVICES . . . "  SUPRA, AT 654.  WE
FIND THAT IT HAS. 

THAT GOALS SPECIFIED ARE PLAINLY WITHIN THE COMMISSION'S MANDATE FOR
THE REGULATION OF TELEVISION BROADCASTING.  /27/  IN NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190 (1943), FOR EXAMPLE, WE
SUSTAINED COMMISSION REGULATIONS GOVERNING RELATIONS BETWEEN BROADCAST
STATIONS AND NETWORK ORGANIZATIONS FOR THE PURPOSE OF PRESERVING THE
STATIONS' ABILITY TO SERVE THE PUBLIC INTEREST THROUGH THEIR
PROGRAMING.  NOTING THAT "(THE FACILITIES OF RADIO ARE NOT LARGE ENOUGH
TO ACCOMMODATE ALL WHO WISH TO USE THEM."  ID., AT 216, WE HELD THAT
THE COMMUNICATIONS "ACT DOES NOT RESTRICT THE COMMISSION MERELY TO
SUPERVISION OF (RADIO) TRAFFIC.  IT PUTS UPON THE COMMISSION THE BURDEN
OF DETERMINING THE COMPOSITION OF THAT TRAFFIC."  ID., AT 215-216.  WE
THEN UPHELD THE COMMISSION'S JUDGMENT THAT 

"(WITH THE NUMBER OF RADIO CHANNELS LIMITED BY NATURAL FACTORS,

  THE PUBLIC INTEREST DEMANDS THAT THOSE WHO ARE ENTRUSTED WITH THE

  AVAILABLE CHANNELS SHALL MAKE THE FULLEST AND MOST EFFECTIVE USE

  OF THEM.'"  ID., AT 218. 

"A STATION LICENSEE MUST RETAIN SUFFICIENT FREEDOM OF ACTION TO

  SUPPLY THE PROGRAM . . . NEEDS OF THE LOCAL COMMUNITY.  LOCAL

  PROGRAM SERVICE IS A VITAL PART OF COMMUNITY LIFE.  A STATION

  SHOULD BE READY, ABLE, AND WILLING TO SERVE THE NEEDS OF THE

  LOCAL COMMUNITY BY BROADCASTING SUCH OUTSTANDING LOCAL EVENTS AS

  COMMUNITY CONCERTS, CIVIC MEETINGS, LOCAL SPORTS EVENTS, AND

  OTHER PROGRAMS OF LOCAL CONSUMER AND SOCIAL INTEREST.'"  ID., AT

  203. 

EQUALLY PLAINLY THE BROADCASTING POLICIES THE COMMISSION HAS
SPECIFIED ARE SERVED BY THE PROGRAM-ORIGINATION RULE UNDER REVIEW.  TO
BE SURE, THE CABLECASTS REQUIRED MAY BE TRANSMITTED WITHOUT USE OF THE
BROADCAST SPECTRUM.  BUT THE REGULATION IS NOT THE LESS, FOR THAT
REASON, REASONABLY ANCILLARY TO THE COMMISSION'S JURISDICTION OVER
BROADCAST SERVICES.  THE EFFECT OF THE REGULATION, AFTER ALL, IS TO
ASSURE THAT IN THE RETRANSMISSION OF BROADCAST SIGNALS VIEWERS ARE
PROVIDED SUITABLY DIVERSIFIED PROGRAMING-- THE SAME OBJECTIVE
UNDERLYING REGULATIONS SUSTAINED IN NATIONAL BROADCASTING CO. V. UNITED
STATES, SUPRA, AS WELL AS THE LOCAL-CARRIAGE RULE REVIEWED IN
SOUTHWESTERN AND SUBSEQUENTLY UPHELD.  SEE SUPRA, AT 666 AND NN. 17 AND
26, SUPRA.  IN ESSENCE THE REGULATION IS NO DIFFERENT FROM COMMISSION
RULES GOVERNING THE TECHNOLOGICAL QUALITY OF CATV BROADCAST CARRIAGE. 
IN THE ONE CASE, OF COURSE, THE CONCERN IS WITH THE STRENGTH OF THE
PICTURE AND VOICE RECEIVED BY THE SUBSCRIBER, WHILE IN THE OTHER IT IS
WITH THE CONTENT OF THE PROGRAMMING OFFERED.  BUT IN BOTH CASES THE
RULES SERVE THE POLICIES OF SECS. 1 AND 303(G) OF THE COMMUNICATIONS
ACT OF WHICH THE CABLECASTING REGULATION IS SPECIFICALLY PREMISED, SEE
SUPRA, AT 654-656, /28/  AND ALSO, IN THE COMMISSION'S WORDS,
"FACILITATE THE MORE EFFECTIVE PERFORMANCE OF (ITS) DUTY TO PROVIDE A
FAIR, EFFICIENT, AND EQUITABLE DISTRIBUTION OF TELEVISION SERVICE TO
EACH OF THE SEVERAL STATES AND COMMUNITIES" UNDER SEC. 307(B).  SUPRA,
AT 656.  /29/ IN SUM, THE REGULATION PRESERVES AND ENHANCES THE
INTEGRITY OF BROADCAST SIGNALS AND THEREFORE IS "REASONABLY ANCILLARY
TO THE EFFECTIVE PERFORMANCE OF THE COMMISSION'S VARIOUS
RESPONSIBILITIES FOR THE REGULATION OF TELEVISION BROADCASTING." 

RESPONDENT, NEVERTHELESS, MAINTAINS THAT JUST AS THE COMMISSION IS
POWERLESS TO REQUIRE THE PROVISION OF TELEVISION BROADCAST SERVICES
WHERE THERE ARE NO APPLICANTS FOR STATION LICENSES NO MATTER HOW
IMPORTANT OR DESIRABLE THOSE SERVICES MAY BE, SO, TOO, IT CANNOT
REQUIRE CATV OPERATORS UNWILLINGLY TO ENGAGE IN CABLECASTING.  IN OUR
VIEW, THE ANALOGY RESPONDENT THUS DRAWS BETWEEN ENTRY INTO BROADCASTING
AND ENTRY INTO CABLECASTING IS MISCONCEIVED.  THE COMMISSION IS NOT
ATTEMPTING TO COMPEL WIRE SERVICE WHERE THERE HAS BEEN NO COMMITMENT TO
UNDERTAKE IT.  CATV OPERATORS TO WHOM THE CABLECASTING RULE APPLIES
HAVE VOLUNTARILY ENGAGED THEMSELVES IN PROVIDING THAT SERVICE, AND THE
COMMISSION SEEKS ONLY TO ENSURE THAT IT SATISFACTORILY MEETS COMMUNITY
NEEDS WITHIN THE CONTEXT OF THEIR UNDERTAKING. 

FOR THESE REASONS WE CONCLUDE THAT THE PROGRAM-ORIGINATION RULE IS
WITHIN THE COMMISSION'S AUTHORITY RECOGNIZED IN SOUTHWESTERN. 

II 

THE QUESTION REMAINS WHETHER THE REGULATION IS SUPPORTED BY
SUBSTANTIAL EVIDENCE THAT IT WILL PROMOTE THE PUBLIC INTEREST.  WE READ
THE OPINION OF THE COURT OF APPEALS AS HOLDING THAT SUBSTANTIAL
EVIDENCE TO THAT EFFECT IS LACKING BECAUSE THE REGULATION CREATES THE
RISK THAT THE ADDED BURDEN OF CABLECASTING WILL RESULT IN INCREASED
SUBSCRIPTION RATES AND EVEN THE TERMINATION OF CATV SERVICES.  THAT
HOLDING IS PATENTLY INCORRECT IN LIGHT OF THE RECORD. 

IN FIRST PROPOSING THE CABLECASTING REQUIREMENT, THE COMMISSION
NOTED THAT "(THERE MAY . . . BE PRACTICAL LIMITATION (FOR COMPLIANCE)
STEMMING FROM THE SIZE OF SOME CATV SYSTEMS" AND ACCORDINGLY SOUGHT
COMMENTS "AS TO A REASONABLE CUTOFF POINT (FOR APPLICATION OF THE
REGULATION) IN LIGHT OF THE COST OF THE EQUIPMENT AND PERSONNEL
MINIMALLY NECESSARY FOR LOCAL ORIGINATIONS."  NOTICE OF PROPOSED
RULEMAKING AND NOTICE OF INQUIRY, 15 F.C.C.2D 417, 422 (1968).  THE
COMMENTS FILED IN RESPONSE TO THIS REQUEST INCLUDED DETAILED DATA
INDICATING, FOR EXAMPLE, THAT A BASIC MONOCHROME SYSTEM FOR
CABLECASTING COULD BE OBTAINED AND OPERATED FOR LESS THAN AN ANNUAL
COST OF $21,000 AND A COLOR SYSTEM, FOR LESS THAN $56,000.  SEE FIRST
REPORT AND ORDER 210.  THIS INFORMATION, HOWEVER, PROVIDED ONLY A
SAMPLING OF THE EXPERIENCE OF THE CATV SYSTEMS ALREADY ENGAGED IN
PROGRAM ORIGINATION.  CONSEQUENTLY, THE COMMISSION 

"DECIDED NOT TO PRESCRIBE A PERMANENT MINIMUM CUTOFF POINT FOR
REQUIRED ORIGINATION ON THE BASIS OF THE RECORD NOW BEFORE US.  THE
COMMISSION INTENDS TO OBTAIN MORE INFORMATION FROM ORIGINATING SYSTEMS
ABOUT THEIR EXPERIENCE, EQUIPMENT, AND THE NATURE OF THE ORIGINATION
EFFORT . . . IN THE MEANTIME, WE WILL PRESCRIBE A VERY LIBERAL STANDARD
FOR REQUIRED ORIGINATION, WITH A VIEW TOWARD LOWERING THIS FLOOR IN . .
. FURTHER PROCEEDINGS ESTABLISH THE APPROPRIATENESS AND DESIRABILITY OF
SUCH ACTION."  ID., AT 213. 

ON THIS BASIS THE COMMISSION CHOSE TO APPLY THE REGULATION TO
SYSTEMS WITH 3,500 OR MORE SUBSCRIBERS, EFFECTIVE JANUARY 1, 1971. 

"THIS STANDARD (THE COMMISSION EXPLAINED) APPEARS MORE THAN
REASONABLE IN LIGHT OF THE (DATA FILED), OUR DECISION TO PERMIT
ADVERTISING AT NATURAL BREAKS . . . , AND THE 1-YEAR GRACE PERIOD. 
MOREOVER, IT APPEARS THAT APPROXIMATELY 70 PERCENT OF THE SYSTEMS NOW
ORIGINATING HAVE FEWER THAN 3,500 SUBSCRIBERS; INDEED, ABOUT HALF OF
THE SYSTEMS NOW ORIGINATING HAVE FEWER THAN 2,000 SUBSCRIBERS . . .
(THE 3,500 STANDARD WILL ENCOMPASS ONLY ON PETITIONS FOR
RECONSIDERATION THE COMMISSION OBSERVED THAT IT HAD "BEEN GIVEN NO DATA
TENDING TO DEMONSTRATE THAT SYSTEMS WITH 3,500 SUBSCRIBERS CANNOT
CABLECAST WITHOUT IMPAIRING THEIR FINANCIAL STABILITY, RAISING RATES OR
REDUCING THE QUALITY OF SERVICE."  MEMORANDUM OPINION AND ORDER 826. 
THE COMMISSION REPEATED THAT "(THE RULE ADOPTED IS MINIMAL IN THE LIGHT
OF THE POTENTIALS OF CABLECASTING,"  /30/  BUT, NONETHELESS, ON ITS OWN
MOTION POSTPONED THE EFFECTIVE DATE OF THE REGULATION TO APRIL 1, 1971,
"TO AFFORD ADDITIONAL PREPARATION TIME."  ID., AT 827. 

THIS WAS STILL NOT THE COMMISSION'S FINAL EFFORT TO TAILOR THE
REGULATION TO THE FINANCIAL CAPACITY OF CATV OPERATORS.  IN DENYING
RESPONDENT'S MOTION FOR A STAY OF THE EFFECTIVE DATE OF THE RULE, THE
COMMISSION REITERATED THAT "THERE HAS BEEN NO SHOWING MADE TO SUPPORT
THE VIEW THAT COMPLIANCE . . . WOULD BE AN UNSUSTAINABLE BURDEN." 
MEMORANDUM OPINION AND ORDER, 27 F.C.C.2D 778, 779 (1971).  ON THE
OTHER HAND, THE COMMISSION RECOGNIZED THAT NEW INFORMATION SUGGESTED
THAT CATV SYSTEMS OF 10,000 ULTIMATE SUBSCRIBERS WOULD OPERATE AT A
LOSS FOR AT LEAST FOUR YEARS IF REQUIRED TO CABLECAST.  THAT
INFORMATION, HOWEVER, WAS BASED ON CAPITAL EXPENDITURE AND ANNUAL
OPERATING COST FIGURES "APPRECIABLY HIGHER" THAN THOSE FIRST PROJECTED
BY THE COMMISSION.  IBID.  THE COMMISSION CONCLUDED: 

"WHILE WE DO NOT CONSIDER THAT AN ADEQUATE SHOWING HAS BEEN MADE TO
JUSTIFY GENERAL CHANGE, WE SEE NO PUBLIC BENEFIT IN RISKING INJURY TO
CATV SYSTEMS IN PROVIDING LOCAL ORIGINATION.  ACCORDINGLY, IF CATV
OPERATORS WITH FEWER THAN 10,000 SUBSCRIBERS REQUEST AD HOC WAIVER OF
(THE REGULATION), THEY WILL NOT BE REQUIRED TO ORIGINATE PENDING ACTION
ON THEIR WAIVER REQUESTS . . . SYSTEMS OF MORE THAN 10,000 SUBSCRIBERS
MAY ALSO REQUEST WAIVERS, BUT THEY WILL NOT BE EXCUSED FROM COMPLIANCE
UNLESS THE COMMISSION GRANTS A REQUESTED WAIVER . . . (THE) BENEFIT (OF
CABLECASTING) TO THE PUBLIC WOULD BE DELAYED IF THE . . . STAY
(REQUESTED BY RESPONDENT) IS GRANTED, AND THE STAY WOULD, THEREFORE, DO
INJURY TO THE PUBLIC'S INTEREST."  IBID. 

THIS HISTORY SPEAKS FOR ITSELF.  THE CABLECASTING REQUIREMENT THUS
APPLIED IS PLAINLY SUPPORTED BY SUBSTANTIAL EVIDENCE THAT IT WILL
PROMOTE THE PUBLIC INTEREST.  /31/  INDEED, RESPONDENT DOES NOT APPEAR
TO ARGUE TO THE CONTRARY.  SEE TR. OF ORAL ARG. 43044.  IT WAS, OF
COURSE, BEYOND THE COMPETENCE OF THE COURT OF APPEALS ITSELF TO ASSESS
THE RELATIVE RISKS AND BENEFITS OF CABLECASTING.  AS WE SAID IN
NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S.,AT 224; 

"OUR DUTY IS AT AN END WHEN WE FIND THAT THE ACTION OF THE
COMMISSION WAS BASED UPON FINDINGS SUPPORTED BY EVIDENCE, AND WAS MADE
PURSUANT TO AUTHORITY GRANTED BY CONGRESS.  IT IS NOT FOR US TO SAY
THAT THE 'PUBLIC INTEREST' WILL (IN FACT) BE FURTHERED OR RETARDED BY
THE . . . (REGULATION)."  SEE ALSO, E.G., UNITED STATES V. STORER
BROADCASTING CO., 351 U.S. 192, 203 (1956); GENERAL TELEPHONE CO. OF
SOUTHWEST V. UNITED STATES, F.2D 846, 858-859, 862-863 (CAS 1971). 

         REVERSED. 

/1/  "CATV SYSTEMS RECEIVE THE SIGNALS OF TELEVISION BROADCASTING
STATIONS, AMPLIFY THEM, TRANSMIT THEM BY CABLE OR MICROWAVE, AND
ULTIMATELY DISTRIBUTE THEM BY WIRE TO THE RECEIVERS OF THEIR
SUBSCRIBERS."  UNITED STATES V. SOUTHWESTERN CABLE CO., 392 U.S. 157,
161 (1968).  THEY "PERFORM EITHER OR BOTH OF TWO FUNCTIONS.  FIRST,
THEY MAY SUPPLEMENT BROADCASTING BY FACILITATING SATISFACTORY RECEPTION
OF LOCAL STATIONS IN ADJACENT AREAS IN WHICH SUCH RECEPTION WOULD NOT
OTHERWISE BE POSSIBLE; AND SECOND, THEY MAY TRANSMIT TO SUBSCRIBERS THE
SIGNALS OF DISTANT STATIONS ENTIRELY BEYOND THE RANGE OF LOCAL
ANTENNAE."  ID., AT 163.     /2/  THERE ARE NOW 2,678 CATV SYSTEMS IN
OPERATION, 1916 CATV FRANCHISES OUTSTANDING FOR SYSTEMS NOT YET IN
CURRENT OPERATION, AND 2,804 FRANCHISE APPLICATIONS PENDING.  WEEKLY
CATV ACTIVITY ADDENDA, 12 TELEVISION DIGEST 9 (FEB. 28, 1972).     /3/
FOR THIS REASON THE COMMISSION HAS RECENTLY ADOPTED THE TERM "CABLE
TELEVISION" IN PLACE OF CATV.  SEE REPORT AND ORDER ON CABLE TELEVISION
SERVICE; CABLE TELEVISION RELAY SERVICE, 37 FED.REG.  3252 N. 9 (1972)
(HEREINAFTER CITED AS REPORT AND ORDER ON CABLE TELEVISION SERVICE). 

/4/  THE EARLY REGULATORY HISTORY OF CATV, CANVASSED IN
SOUTHWESTERN, NEED NOT BE REPEATED HERE, OTHER THAN TO NOTE THAT IN
1966 THE COMMISSION ADOPTED RULES, APPLICABLE TO BOTH MICROWAVE AND NON
MICROWAVE CATV SYSTEMS, TO REGULATE THE CARRIAGE OF LOCAL SIGNALS, THE
DUPLICATION OF LOCAL PROGRAMING, AND THE IMPORTATION OF DISTANT SIGNALS
INTO THE 100 LARGEST TELEVISION MARKETS.  SEE INFRA, AT 659.  THE
COMMISSION'S 1968 NOTICE OF PROPOSED RULEMAKING ADDRESSED, IN ADDITION
TO THE PROGRAM ORIGINATION REQUIREMENT AT ISSUE HERE, WHETHER
ADVERTISING SHOULD BE PERMITTED ON CABLECASTS AND WHETHER THE BROADCAST
DOCTRINES OF "EQUAL TIME," "FAIRNESS," AND SPONSORSHIP IDENTIFICATION
SHOULD APPLY TO THEM.  OTHER AREAS OF INQUIRY INCLUDED THE USE OF CATV
FACILITIES TO PROVIDE COMMON CARRIER SERVICE; FEDERAL LICENSING AND
LOCAL REGULATION OF CATV; CROSS-OWNERSHIP OF TELEVISION STATIONS AND
CATV SYSTEMS; REPORTING AND TECHNICAL STANDARDS; AND IMPORTATION OF
DISTANT SIGNALS INTO MAJOR MARKETS.  THE NOTICE OFFERED CONCRETE
PROPOSALS IN SOME OF THESE AREAS, WHICH WERE ACTED ON IN THE
COMMISSION'S FIRST REPORT AND ORDER, 20 F.C.C.2D 201 (1969)
(HEREINAFTER CITED AS FIRST REPORT AND ORDER), AND REPORT AND ORDER ON
CABLE TELEVISION SERVICE.  SEE ALSO MEMORANDUM OPINION AND ORDER, 23
F.C.C.2D 825 (1970) (HEREINAFTER CITED AS MEMORANDUM OPINION AND
ORDER).  NONE OF THESE REGULATIONS, ASIDE FROM THE CABLECASTING
REQUIREMENT, IS NOW BEFORE US, SEE N. 14, INFRA, AND WE, OF COURSE,
INTIMATE NO VIEW OF THEIR VALIDITY. 

/5/  "BY SIGNIFICANT EXTEND (THE COMMISSION INDICATED) WE MEAN
SOMETHING MORE THAN THE ORIGINATION OF AUTOMATED SERVICES (SUCH AS TIME
AND WEATHER, NEWS TICKER, STOCK TICKER, ETC.) AND AURAL SERVICES (SUCH
AS MUSIC AND ANNOUNCEMENTS).  SINCE ONE OF THE PURPOSES OF THE
ORIGINATION REQUIREMENT IS TO INSURE THAT CABLECASTING EQUIPMENT WILL
BE AVAILABLE FOR USE BY OTHERS ORIGINATING ON COMMON CARRIER CHANNELS,
'OPERATION TO A SIGNIFICANT EXTENT AS A LOCAL OUTLET' IN ESSENCE
NECESSITATES THAT THE CATV OPERATOR HAVE SOME KIND OF VIDEO
CABLECASTING SYSTEM FOR THE PRODUCTION OF LOCAL LIVE AND DELAYED
PROGRAMING (E.G., A CAMERA AND A VIDEO TYPE RECORDER, ETC.)."  FIRST
REPORT AND ORDER 214. 

/6/  "CABLECASTING" WAS DEFINED AS "PROGRAMING DISTRIBUTED ON A CATV
SYSTEM WHICH HAS BEEN ORIGINATED BY THE CATV OPERATOR OR BY ANOTHER
ENTITY, EXCLUSIVE OF BROADCAST SIGNALS CARRIED ON THE SYSTEM."  47 CFR
74.1101(J).  AS THIS DEFINITION MAKES CLEAR, CABLECASTING MAY INCLUDE
NOT ONLY PROGRAMS PRODUCED BY THE CATV OPERATOR, BUT "FILMS AND TAPES
PRODUCED BY OTHERS, AND CATV NETWORK PROGRAMING."  FIRST REPORT AND
ORDER 214.  SEE ALSO ID., AT 203.  THE DEFINITION HAS BEEN ALTERED TO
CONFORM TO CHANGES IN THE REGULATION, SEE N. 7, INFRA, AND NOW APPEARS
AT 47 CFR 76.5(W).  SEE REPORT AND ORDER ON CABLE TELEVISION SERVICE
3279.  ALTHOUGH THE DEFINITION NOW REFERS TO PROGRAMING "SUBJECT TO THE
EXCLUSIVE CONTROL ON THE CABLE OPERATOR," THIS IS APPARENTLY NOT MEANT
TO EFFECT A CHANGE IN SUBSTANCE OR TO PRECLUDE THE OPERATOR FROM
CABLECASTING PROGRAMS PRODUCED BY OTHERS.  SEE ID., AT 3271. 

/7/  THIS REQUIREMENT, APPLICABLE TO BOTH MICROWAVE AND NON
MICROWAVE CATV SYSTEMS WITHOUT ANY "GRANDFATHERING" PROVISION, WAS
ORIGINALLY SCHEDULED TO GO INTO EFFECT ON JANUARY 1, 1971.  SEE FIRST
REPORT AND ORDER 223.  ON PETITION FOR RECONSIDERATION, HOWEVER, THE
EFFECTIVE DATE WAS DELAYED UNTIL APRIL 1, 1971, SEE MEMORANDUM OPINION
AND ORDER 827, 830, AND THE, AFTER THE COURT OF APPEALS DECISION BELOW,
SUSPENDED PENDING FINAL JUDGMENT HERE.  SEE 36 FED.REG.  10876 (1971). 
MEANWHILE, THE REGULATION HAS BEEN REVISED AND NOW APPEARS AT 47 CFR
SEC. 76,201(A).  THE REVISION HAS NO SIGNIFICANCE FOR THIS CASE.  SEE
MEMORANDUM OPINION AND ORDER 827, 830 (REVISION EFFECTIVE AUG. 14,
1970); REPORT AND ORDER ON CABLE TELEVISION SERVICE 3271, 3277, 3287
(REVISION EFFECTIVE MAR. 31, 1972). 

/8/  ALTHOUGH THE COMMISSION DID NOT IMPOSE COMMON-CARRIER
OBLIGATIONS ON CATV SYSTEMS IN ITS 1969 REPORT, IT DID NOTE THAT "THE
ORIGINATION REQUIREMENT WILL HELP ENSURE THAT ORIGINATION FACILITIES
ARE AVAILABLE FOR USE BY OTHERS ORIGINATING ON LEASED CHANNELS."  FIRST
REPORT AND ORDER 209.  PUBLIC ACCESS REQUIREMENTS WERE INTRODUCED IN
THE COMMISSION'S REPORT AND ORDER ON CABLE TELEVISION SERVICE, ALTHOUGH
NOT DIRECTLY UNDER THE HEADING OF COMMON-CARRIER SERVICE.  SEE ID., AT
3277. 

/9/  SECTION 1 OF THE ACT, 48 STAT. 1064, AS AMENDED, 47 U.S.C. 151,
STATES: 

"FOR THE PURPOSE OF REGULATING INTERSTATE AND FOREIGN COMMERCE IN
COMMUNICATION BY WIRE AND RADIO SO AS TO MAKE AVAILABLE, SO FAR AS
POSSIBLE, TO ALL THE PEOPLE OF THE UNITED STATES A RAPID, EFFICIENT,
NATION-WIDE, AND WORLD-WIDE WIRE AND RADIO COMMUNICATION SERVICE WITH
ADEQUATE FACILITIES AT REASONABLE CHARGES, FOR THE PURPOSE OF THE
NATIONAL DEFENSE, FOR THE PURPOSE OF PROMOTING SAFETY OF LIFE AND
PROPERTY THROUGH THE USE OF WIRE AND RADIO COMMUNICATION, AND FOR THE
PURPOSE OF SECURING A MORE EFFECTIVE EXECUTION OF THIS POLICY BY
CENTRALIZING AUTHORITY HERETOFORE GRANTED BY LAW TO SEVERAL AGENCIES
AND BY GRANTING ADDITIONAL AUTHORITY WITH RESPECT TO INTERSTATE AND
FOREIGN COMMERCE IN WIRE AND RADIO COMMUNICATION, THERE IS CREATED A
COMMISSION TO BE KNOW AS THE 'FEDERAL COMMUNICATIONS COMMISSION,' WHICH
SHALL BE CONSTITUTED AS HEREINAFTER PROVIDED, AND WHICH SHALL EXECUTE
AND ENFORCE THE PROVISIONS OF THIS CHAPTER." 

/10/  IN SO CONCLUDING, THE COMMISSION REJECTED THE CONTENTION THAT
A PROHIBITION ON CATV ORIGINATIONS WAS "NECESSARY TO PREVENT POTENTIAL
FRACTIONALIZATION OF THE AUDIENCE FOR BROADCAST SERVICES AND A
SIPHONING OFF OF PROGRAM MATERIAL AND ADVERTISING REVENUE NOW AVAILABLE
TO THE BROADCAST SERVICE."  FIRST REPORT AND ORDER 202.  "BROADCASTERS
AND CATV ORIGINATORS . . . ," THE COMMISSION REASONED, "STAND ON THE
SAME FOOTING IN ACQUIRING THE PROGRAM MATERIAL WITH WHICH THEY
COMPLETE."  ID., AT 203.  MOREOVER, "A LOSS OF AUDIENCE OR ADVERTISING
REVENUE TO A TELEVISION STATION IS NOT IN ITSELF A MATTER OF MOMENT TO
THE PUBLIC INTEREST UNLESS THE RESULT IS A NET LOSS OF TELEVISION
SERVICE," IBID.-- AN IMPACT THAT THE COMMISSION FOUND HAD NO SUPPORT IN
THE RECORD AND THAT, IN ANY EVENT, IT WOULD UNDERTAKE TO PREVENT SHOULD
THE NEED ARISE.  SEE ID., AT 203-204.  SEE ALSO MEMORANDUM OPINION AND
ORDER 826 N. 3, 828-829. 

/11/  SECTION 303(G), 48 STAT. 1082, 47 U.S.C. 303, STATES THAT
"(EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER, THE COMMISSION FROM
TIME TO TIME, AS PUBLIC CONVENIENCE, INTERST, OR NECESSITY REQUIRED,
SHALL" "(G) (STUDY NEW USES FOR RADIO, PROVIDE FOR EXPERIMENTAL USES OF
FREQUENCIES, AND GENERALLY ENCOURAGE THE LARGER AND MORE EFFECTIVE USE
OF RADIO IN THE PUBLIC INTEREST . . . " 

/12/  SECTION 307(B), 48 STAT. 1084, AS AMENDED, 47 U.S.C. 307(B),
STATES: 

"IN CONSIDERING APPLICATIONS FOR LICENSES (FOR THE TRANSMISSION OF
ENERGY, COMMUNICATIONS, OR SIGNALS BY RADIO), AND MODIFICATIONS AND
RENEWALS THEREOF, WHEN AND INSOFAR AS THERE IS DEMAND FOR THE SAME, THE
COMMISSION SHALL MAKE SUCH DISTRIBUTION OF LICENSES, FREQUENCIES, HOURS
OF OPERATION, AND OF POWER AMONG THE SEVERAL STATES AND COMMUNITIES AS
TO PROVIDE A FAIR, EFFICIENT, AND EQUITABLE DISTRIBUTION OF RADIO
SERVICE TO EACH OF THE SAME." 

/13/  THE COMMISSION ADDED:  "(IN AUTHORIZING THE RECEIPT, FORWARDING,
AND DELIVERY OF BROADCAST SIGNALS, THE COMMISSION, AND MAY CONDITION
THIS AUTHORIZATION UPON REASONABLE REQUIREMENTS GOVERNING ACTIVITIES
WHICH ARE CLOSELY RELATED TO SUCH RADIO COMMUNICATION AND FACILITIES." 
FIRST REPORT AND ORDER 209 (CITING, INTER ALIA 301 OF THE
COMMUNICATIONS ACT, 48 STAT. 1081, 47 U.S.C. 301 (GENERALLY REQUIRING
LICENSES FOR THE USE OR OPERATION OF ANY APPARATUS FOR THE INTERSTATE
OR FOREIGN TRANSMISSION OF ENERGY, COMMUNICATIONS, OR SIGNALS BY
RADIO)).  SINCE, AS WE HOLD, INFRA, THE AUTHORITY OF THE COMMISSION
RECOGNIZED IN SOUTHWESTERN IS SUFFICIENT TO SUSTAIN THE CABLECASTING
REQUIREMENT AT ISSUE HERE, WE NEED NOT, AND DO NOT, PASS UPON THE
EXTENT OF THE COMMISSION'S JURIDICTION OVER CATV UNDER SEC. 301.  SEE,
E.G., FCC V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 138 (1940);
GENERAL TELEPHONE CO. OF CAL V. FCC, 134 U.S.APP.D.C. 116, 130-131, 413
F.2D 390, 404-405 (1969); PHILADELPHIA TELEVISION BROADCASTING CO. V.
FCC, 123 U.S.APP.D.C. 298, 300, 359 F.2D 282, 284 (1966): 

"IN A STATUTORY SCHEME IN WHICH CONGRESS HAS GIVEN AN AGENCY VARIOUS
BASES OF JURISDICTION AND VARIOUS TOOLS WITH WHICH TO PROTECT THE
PUBLIC INTEREST, THE AGENCY IS ENTITLED TO SOME LEEWAY IN CHOOSING
WHICH JURISDICTIONAL BASE AND WHICH REGULATORY TOOLS WILL BE MOST
EFFECTIVE IN ADVANCING THE CONGRESSIONAL OBJECTIVE." 

/14/  ALTHOUGH THIS HOLDING WAS SPECIFICALLY LIMITED TO "EXISTING
CABLE TELEVISION OPERATORS," THE COURT'S REASONING EXTENDED MORE
BROADLY TO ALL CATV SYSTEMS, AND, INDEED, ITS JUDGMENT SET ASIDE THE
REGULATION IN ALL ITS APPLICATIONS.  SEE 441 F.2D, AT 1328. 

RESPONDENT ALSO CHALLENGED OTHER REGULATIONS, PROMULGATED IN THE
COMMISSION'S FIRST REPORT AND ORDER AND MEMORANDUM OPINION AND ORDER,
DEALING WITH ADVERTISING, "EQUAL TIME," "FAIRNESS," SPONSORSHIP
IDENTIFICATION, AND PER-PROGRAM OR PER-CHANNEL CHARGES ON CABLECASTS. 
THE COURT OF APPEALS, HOWEVER, DID NOT "(PASS) ON THE POWER OF THE FCC
. . . TO PRESCRIBE REASONABLE RULES FOR SUCH CATV OPERATORS WHO
VOLUNTARILY CHOOSE TO ORIGINATE PROGRAMS," ID., AT 1326, SINCE
RESPONDENT ACKNOWLEDGED THAT IT DID NOT WANT TO CABLECAST AND HENCE
LACKED STANDING TO ATTACK THOSE RULES.  SEE ID., AT 1328. 

/15/  THE COURT HELD, IN ADDITION, THAT THE COMMISSION MAY NOT
REQUIRE CATV OPERATORS "AS A CONDITION TO (THEIR) RIGHT TO USE . . .
CAPTURES (BROADCAST) SIGNALS IN THEIR EXISTING FRANCHISE OPERATION TO
ENGAGE IN THE ENTIRELY NEW AND DIFFERENT BUSINESS OF ORIGINATING
PROGRAMS"  ID., AT 1327.  THIS HOLDING PRESENTS NO SEPARATE QUESTION
FROM THE "REASONABLY ANCILLARY" ISSUE THAT NEED BE CONSIDERED HERE. 
SEE N. 22, INFRA. 

/16/  CONCURRING IN THE RESULT IN A SIMILAR VEIN, JUDGE GIBSON
CONCLUDED THAT ALTHOUGH "THE FCC HAS AUTHORITY OVER CATV SYSTEMS," "THE
ORDER UNDER REVIEW IS CONFISCATORY AND HENCE ARBITRARY," 441 F.2D, AT
1328, FOR THE REGULATION "WOULD BE EXTREMELY BURDENSOME AND PERHAPS
REMOVE FROM THE CATV FIELD MANY ENTREPRENEURS WHO DO NOT HAVE THE
RESOURCES, TALENT AND ABILITY TO ENTER THE BROADCASTING FIELD."  ID.,
AT 1329.  IF THIS IS TO SUGGEST THAT THE REGULATION IS INVALID MERELY
BECAUSE IT BURDENS CATV OPERATORS OR MAY EVEN FORCE SOME OF THEM OUT OF
BUSINESS, THE ARGUMENT IS PLAINLY INCORRECT.  SEE N. 31, INFRA.  THE
QUESTION WOULD STILL REMAIN WHETHER THE COMMISSION REASONABLY FOUND ON
SUBSTANTIAL EVIDENCE THAT THE REGULATION ON BALANCE WOULD PROMOTE
POLICY OBJECTIVES COMMITTED TO ITS JURISDICTION UNDER THE
COMMUNICATIONS ACT, WHICH, FOR THE REASONS GIVEN INFRA, WE HOLD THAT IT
DID. 

/17/  SOUTHWESTERN REVIEWED, BUT DID NOT SPECIFICIALLY PASS UPON THE
VALIDITY OF, THE REGULATION.  SEE 392 U.S.,AT 167.  THEIR VALIDITY WAS,
HOWEVER, SUBSEQUENTLY AND CORRECTLY UPHELD BY COURTS OF APPEALS AS
WITHIN THE GUIDELINES OF THAT DECISION.  SEE, E.G., BLACK HILLS VIDEO
CORP. V. FCC, 399 F.2D 65 (CA8 1968). 

/18/  SECTIONS 3(A), (B), 48 STAT. 1065, 47 U.S.C. 153(A), (B),
DEFINE THESE TERMS TO MEAN "THE TRANSMISSION" "OF WRITING, SIGNS,
SIGNALS, PICTURES, AND SOUNDS OF ALL KINDS," WHETHER BY CABLE OR RADIO,
"INCLUDING ALL INSTRUMENTALITIES, FACILITIES, APPARATUS, AND SERVICES
(AMONG OTHER THINGS, THE RECEIPT, FORWARDING, AND DELIVERY OF
COMMUNICATIONS) INCIDENTAL TO SUCH TRANSMISSION." 

/19/  "NOR CAN WE DOUBT THAT CATV SYSTEMS ARE ENGAGED IN INTERSTATE
COMMUNICATION, EVEN WHERE . . . THE INTERCEPTED SIGNALS EMANATE FROM
STATIONS LOCATED WITHIN THE SAME STATE IN WHICH THE CATV SYSTEM
OPERATES.  WE MAY TAKE NOTICE THAT TELEVISION BROADCASTING CONSISTS IN
VERY LARGE PART OF PROGRAMMING DEVISED FOR, AND DISTRIBUTED TO,
NATIONAL AUDIENCES; (CATV OPERATORS) THUS ARE ORDINARILY EMPLOYED IN
THE SIMULTANEOUS RETRANSMISSION OF COMMUNICATIONS THAT HAVE VERY OFTEN
ORIGINATED IN OTHER STATES.  THE STREAM OF COMMUNICATION IS ESSENTIALLY
UNINTERRUPTED AND PROPERLY INDIVISIBLE.  TO CATEGORIZE (CATV)
ACTIVITIES AS INTRASTATE WOULD DISREGARD THE CHARACTER OF THE
TELEVISION INDUSTRY, AND SERVE MERELY TO PREVENT THE NATIONAL
REGULATION THAT 'IS NOT ONLY APPROPRIATE BUT ESSENTIAL TO THE EFFICIENT
USE OF RADIO FACILITIES."  FEDERAL RADIO COMM'N V. NELSON BROS. CO.,
289 U.S. 266, 279."  392 U.S.,AT 168-169. 

/20/  SEE N. 12, SUPRA.  SEE ALSO SECS. 303(F), (H), 48 STAT. 1082,
47 U.S.C. 303(F), (H) (AUTHORIZING THE COMMISSION TO PREVENT
INTERFERENCE AMONG STATIONS AND TO ESTABLISH AREAS TO BE SERVED BY THEM
RESPECTIVELY).  "IN PARTICULAR, THE COMMISSION FEARED THAT CATV MIGHT .
. . SIGNIFICANTLY MAGNIFY THE CHARACTERISTICALLY SERIOUS FINANCIAL
DIFFICULTIES OF UHF AND EDUCATIONAL TELEVISION BROADCASTER."  392
U.S.,AT 175-176.     /21/  THIS, HOWEVER, IS CONTESTED BY THE STATES OF
ILLINOIS AS AMICUS CURIAE.  IT IS, NEVERTHELESS, CLEAR THAT CABLECASTS
CONSTITUTE COMMUNICATION BY WIRE (OR RADIO IF MICROWAVE TRANSMISSION IS
INVOLVED), AS WELL AS INTERSTATE COMMUNICATION IF THE TRANSMISSION
ITSELF HAS MOVED INTERSTATE, AS THE COMMISSION HAS AUTHORIZED AND
ENCOURAGED.  SEE FIRST REPORT AND ORDER 207-208 (REGIONAL AND NATIONAL
INTERCONNECTIONS) AND N. 6, SUPRA.  THE CAPACITY FOR INTERSTATE
NONBROADCAST PROGRAMING MAY IN ITSELF BE SUFFICIENT TO BRING CABLECASTS
WITHIN THE COMPASS OF SEC. 2(A).  IN SOUTHWESTERN WE DECLINED TO CARVE
CATV BROADCAST TRANSMISSIONS, FOR THE PURPOSE OF DETERMINING THE EXTENT
OF THE COMMISSION'S REGULATORY AUTHORITY, INTO INTERSTATE AND
INTRASTATE COMPONENTS.  SEE N. 19, SUPRA.  THIS RESULT WAS JUSTIFIED BY
THE EXTENT OF INTERSTATE BROADCAST PROGRAMING, THE INTERDEPENDENCIES
BETWEEN THE TWO COMPONENTS, AND THE NEED TO PRESERVE THE "'UNIFIED AND
COMPREHENSIVE REGULATORY SYSTEM FOR THE (BROADCASTING) INDUSTRY.'"  392
U.S.,AT 168 (QUOTING FCC V. POTTSVILLE BROADCASTING CO., N. 13, SUPRA,
AT 137).  A SIMILAR RATIONAL MAY APPLY HERE, DESPITE THE LESSER
"INTERSTATE CONTENT" OF CABLECASTS AT PRESENT. 

BUT WE NEED NOT NOW DECIDE THAT QUESTION BECAUSE, IN ANY EVENT, CATV
OPERATORS HAVE, BY VIRTUE OF THEIR CARRIAGE OF BROADCAST SIGNALS,
NECESSARILY SUBJECTED THEMSELVES TO THE COMMISSION'S COMPREHENSIVE
JURIDICTION.  AS MR. CHIEF JUSTICE (THEN JUDGE) BURGER HAS STATED IN A
RELATED CONTEXT: 

"THE PETITIONERS (TELEPHONE COMPANIES PROVIDING CATV CHANNEL
DISTRIBUTION FACILITES) HAVE, BY CHOICE, INSERTED THEMSELVES AS LINKS
IN THIS INDIVISIBLE STREAM AND HAVE BECOME AN INTEGRAL PART OF
INTERSTATE BROADCAST TRANSMISSION.  THEY CANNOT HAVE THE ECONOMIC
BENEFITS OF SUCH CARRIAGE AS THEY PERFORM AND BE FREE OF THE
NECESSARILY PERVASIVE JURISDICTION OF THE COMMISSION."  GENERAL
TELEPHONE CO. OF CAL. V. FCC, N. 13, SUPRA, AT 127, 413 F.2D, AT 401. 

THE DEVOTION OF CATV SYSTEMS TO BROADCAST TRANSMISSION-- TOGETHER
WITH THE INTERDEPENDENCIES BETWEEN THAT SERVICE AND CABLECASTS, AND THE
NECESSITY FOR UNIFIED REGULATION-- PLAINLY SUFFICES TO BRING CABLECASTS
WITHIN THE COMMISSION'S SEC. 2(A) JURISDICTION.  SEE GENERALLY BARNETT,
STATE, FEDERAL, AND LOCAL REGULATION OF CABLE TELEVISION, 47 NOTRE DAME
LAW.  685, 721-723, 726-734 (1972). 

/22/  SINCE "(THE FUNCTION OF CATV SYSTEMS HAS LITTLE IN COMMON WITH
THE FUNCTION OF BROADCASTERS," FORTNIGHTLY CORP. V. UNITED ARTISTS
TELEVISION, 392 U.S. 390, 400 (1968), AND SINCE "(THE FACT THAT . . .
PROPERTY IS DEVOTED TO A PUBLIC USE ON CERTAIN TERMS DOES NOT JUSTIFY .
. . THE IMPOSITION OF RESTRICTIONS THAT ARE NOT REASONABLY CONCERNED
WITH THE PROPER CONDUCT OF THE BUSINESS ACCORDING TO THE UNDERTAKING
WHICH THE (OWNER) HAS EXPRESSLY OR IMPLIEDLY ASSUMED," NORTHERN PACIFIC
R. CO. V. NORTH DAKOTA, 236 U.S. 585, 595 (1915), RESPONDENT ALSO
ARGUES THAT CATV OPERATORS MAY NOT BE REQUIRED TO CABLECAST AS A
CONDITION FOR THEIR CUSTOMARY SERVICE OF CARRYING BROADCAST SIGNALS. 
THIS CONCLUSION MIGHT FOLLOW ONLY IF THE PROGRAM-ORIGINATION
REQUIREMENT IS NOT REASONABLY ANCILLARY TO THE COMMISSION'S
JURISDICTION OVER BROADCASTING.  FOR, AS WE HELD IN SOUTHWESTERN, CATV
OPERATORS ARE, AT LEAST TO THAT EXTENT, ENGAGED IN A BUSINESS SUBJECT
TO THE COMMISSION'S REGULATION.  OUR HOLDING ON THE "REASONABLY
ANCILLARY" ISSUE IS THEREFORE DISPOSITIVE OF RESPONDENT'S ADDITIONAL
CLAIM.  SEE INFRA, AT 669-670. 

IT SHOULD BE ADDED THAT FORTNIGHTLY CORP. V. UNITED ARTISTS
TELEVISION, SUPRA, HAS NO BEARING ON THE "REASONABLY ANCILLARY"
QUESTION.  THAT CASE MERELY HELD THAT CATV OPERATORS WHO RETRANSMIT,
BUT DO NOT THEMSELVES ORIGINATE COPYRIGHTED WORKS DO NOT "PERFORM" THEM
WITHIN THE MEANING OF THE COPYRIGHT ACT, 61 STAT. 652, AS AMENDED, 17
U.S.C. 1, SINCE "(ESSENTIALLY, (THAT KIND OF) A CATV SYSTEM NO MORE
THAN ENHANCES THE VIEWER'S CAPACITY TO RECEIVE THE BROADCASTER'S
SIGNALS . . . " 392 U.S.,AT 399.  THE ANALOGY THUS DRAWN BETWEEN CATV
OPERATIONS AND BROADCAST VIEWING FOR COPYRIGHT PURPOSES OBVIOUSLY DOES
NOT DICTATE THE EXTENT OF THE COMMISSION'S AUTHORITY TO REGULATE CATV
UNDER THE COMMUNICATIONS ACT.  INDEED, SOUTHWESTERN, HANDED DOWN ONLY A
WEEK BEFORE FORTNIGHTLY, EXPRESSLY HELD THAT CATV SYSTEMS ARE NOT
MERELY RECEIVERS, BUT TRANSMITTERS OF INTERSTATE COMMUNICATION SUBJECT
TO THE COMMISSION'S JURISDICTION UNDER THAT ACT.  SEE 392 U.S.,AT 168. 

/23/  SEE ALSO GENERAL TELEPHONE CO. OF CAL. V. FCC, N. 13, SUPRA,
AT 124, 413 F.2D, AT 398: 

"OVER THE YEARS, THE COMMISSION HAS BEEN REQUIRED TO MEET NEW
PROBLEMS CONCERNING CATV AND AS CASES HAVE REACHED THE COURTS THE SCOPE
OF THE ACT HAS BEEN DEFINED, AS CONGRESS CONTEMPLATED WOULD BE DONE, SO
AS TO AVOID A CONTINUING PROCESS OF STATUTORY REVISION.  TO DO
OTHERWISE IN REGULATING A DYNAMIC PUBLIC SERVICE FUNCTION SUCH AS
BROADCASTING WOULD PLACE AN INTOLERABLE REGULATORY BURDEN ON THE
CONGRESS-- ONE WHICH IT SOUGHT TO ESCAPE BY DELEGATING ADMINISTRATIVE
FUNCTIONS TO THE COMMISSION." 

/24/  THE COMMISSION ELABORATED: "CATV . . . HAS MADE A SIGNIFICANT
CONTRIBUTION TO MEETING THE PUBLIC DEMAND FOR TELEVISION SERVICE IN
AREAS TOO SMALL IN POPULATION TO SUPPORT A LOCAL STATION OR TOO REMOTE
IN DISTANCE OR ISOLATED BY TERRAIN TO RECEIVE REGULAR OR GOOD OFF-THE
AIR RECEPTION.  IT HAS ALSO CONTRIBUTED TO MEETING THE PUBLIC'S DEMAND
FOR GOOD RECEPTION OF MULTIPLE PROGRAM CHOICES, PARTICULARLY THE THREE
FULL NETWORK SERVICES.  IN THUS CONTRIBUTING TO THE REALIZATION OF SOME
OF THE MOST IMPORTANT GOALS WHICH HAVE GOVERNED OUR ALLOCATIONS
PLANNING, CATV HAS CLEARLY SERVED THE PUBLIC INTEREST 'IN THE LARGER
AND MORE EFFECTIVE USE OF RADIO.'  AND, EVEN IN THE MAJOR MARKET, WHERE
THERE MAY BE NO DEARTH OF SERVICE . . . , CATV MAY . . . INCREASE
VIEWING OPPORTUNITIES, EITHER BY BRINGING IN PROGRAMING NOT OTHERWISE
AVAILABLE OR, WHAT IS MORE LIKELY, BRINGING IN PROGRAMING LOCALLY
AVAILABLE BUT AT TIMES DIFFERENT FROM THOSE PRESENTED BY THE LOCAL
STATIONS."  SECOND REPORT AND ORDER, 2 F.C.C.2D 725, 781 (1966).  SEE
ALSO ID., AT 745. 

/25/  THIS STATEMENT, MADE WITH REFERENCE ONLY TO THE LOCAL CARRIAGE
AND NON-DUPLICATION REQUIREMENTS, WAS NO LESS TRUE OF THE DISTANT
IMPORTATION RULE.  SEE ID., AT 781-782. 

/26/  THE REGULATION, FOR EXAMPLE, RETAINED THE PROVISION OF THE
COMMISSION'S EARLIER RULE GOVERNING CATV MICROWAVE SYSTEMS UNDER WHICH
A LOCAL SIGNAL WAS NOT REQUIRED TO BE CARRIED "IF (1) IT SUBSTANTIALLY
DUPLICATES THE NETWORK PROGRAMING OF A SIGNAL OF A HIGHER GRADE, AND
(2) CARRYING IT WOULD-- BECAUSE OF LIMITED CHANNEL CAPACITY-- PREVENT
THE SYSTEM FROM CARRYING A NONNETWORK SIGNAL, WHICH WOULD CONTRIBUTE TO
THE DIVERSITY OF ITS SERVICE."  FIRST REPORT AND ORDER, 38 F.C.C. 683,
717 (1965).  SEE SECOND REPORT AND ORDER, N. 24 SUPRA, AT 752-753. 
MOREOVER, CATV OPERATORS WERE WARNED THAT, IN REVIEWING THEIR
DISCRETIONARY CHOICE OF STATIONS TO CARRY AMONG THOSE OF EQUAL PRIORITY
IN CERTAIN CIRCUMSTANCES, THE COMMISSION WOULD "GIVE PARTICULAR
CONSIDERATION TO ANY ALLEGATION THAT THE STATION NOT CARRIED IS ONE
WITH CLOSER COMMUNITY TIES."  ID., AT 755.  IN ADDITION, OPERATORS WERE
REQUIRED TO CARRY THE SIGNALS OF LOCAL SATELLITE STATIONS EVEN IF THEY
ALSO CARRIED THE SIGNALS OF THE SATELLITES' PARENTS; OTHERWISE, "THE
SATELLITE (MIGHT) LOSE AUDIENCE FOR WHICH IT MAY BE ORIGINATING SOME
LOCAL PROGRAMING AND (FIND) ITS INCENTIVE TO ORIGINATE PROGRAMS
(REDUCED)."  ID., AT 755-756.  FINALLY, THE COMMISSION INDICATED THAT,
IN CONSIDERING WAIVERS OF THE REGULATION, IT WOULD "(ACCORD)
SUBSTANTIAL WEIGHT" TO SUCH CONSIDERATIONS AS WHETHER "THE PROGRAMING
OF STATIONS LOCATED WITHIN THE STATE WOULD BE OF GREATER INTEREST THAN
THOSE OF NEARER, BUT OUT-OF-STATE STATIONS (OTHERWISE REQUIRED TO BE
GIVEN PRIORITY IN CARRIAGE)-- E.G., COVERAGE OF POLITICAL ELECTIONS AND
OTHER PUBLIC AFFAIRS OF STATEWIDE CONCERN."  ID., AT 753. 

/27/  AS THE COMMISSION STATED, "IT HAS LONG BEEN A BASIC TENET OF
NATIONAL COMMUNICATIONS POLICY THAT 'THE WIDEST POSSIBLE DISSEMINATION
OF INFORMATION FROM DIVERSE AND ANTAGONISTIC SOURCES IS ESSENTIAL TO
THE WELFARE OF THE PUBLIC.'  ASSOCIATED PRESS V. UNITED STATES, 326
U.S. 1, 20; RED LION BROADCASTING CO., INC. V. FEDERAL COMMUNICATIONS
COMMISSION, 395 U.S. 367 . . . " FIRST REPORT AND ORDER 205. 

/28/  RESPONDENT APPARENTLY DOES NOT DISPUTE THIS, BUT CONTENDS
INSTEAD THAT SECS. 1 AND 303(G) MERELY STATE OBJECTIVES WITHOUT
GRANTING POWER FOR THEIR IMPLEMENTATION.  SEE BRIEF FOR MIDWEST VIDEO
CORP. 24.  THE CABLECASTING REQUIREMENT, HOWEVER, IS FOUNDED ON THOSE
PROVISIONS FOR THE POLICIES THEY STATE AND NOT FOR ANY REGULATORY POWER
THEY MIGHT CONFER.  THE REGULATORY POWER ITSELF MAY BE FOUND, AS IN
SOUTHWESTERN, SEE SUPRA, AT 660, 662, IN 47 U.S.C. 152(A), 303(R). 

/29/  RESPONDENT ASSERTS THAT 'IT IS DIFFICULT TO SEE HOW A
MANDATORY (ORIGINATION) REQUIREMENT . . . CAN BE SAID TO AID THE
COMMISSION IN PRESERVING THE AVAILABILITY OF BROADCAST STATIONS TO THE
SEVERAL STATES AND COMMUNITIES."  BRIEF FOR MIDWEST VIDEO CORP. 24. 
RESPONDENT IGNORES THAT THE PROVISION OF ADDITIONAL PROGRAMING OUTLETS
BY CATV NECESSARILY AFFECTS THE FAIRNESS, EFFICIENCY, AND EQUITY OF THE
DISTRIBUTION OF TELEVISION SERVICES.  WE HAVE NO BASIS, IT MAY BE
ADDED, FOR OVERTURNING THE COMMISSION'S JUDGMENT THAT THE EFFECT IN
THIS REGARD WILL BE FAVORABLE.  SEE SUPRA, AT 654-655 AND N. 10. 

/30/  COMMISSIONER BARTLEY, HOWEVER, DISSENTED ON THE GROUND THAT
THE REGULATION SHOULD APPLY ONLY TO SYSTEMS WITH OVER 7,500
SUBSCRIBERS.  MEMORANDUM OPINION AND ORDER 831. 

/31/  NOR IS THE REGULATION INFIRM FOR ITS FAILURE TO GRANT
"GRANDFATHER" RIGHTS, SEE N. 7, SUPRA, AS THE COMMISSION WARNED WOULD
BE THE CASE IN ITS NOTICE OF PROPOSED RULEMAKING AND NOTICE OF INQUIRY,
15 F.C.C.2D 417, 424 (1968).  SEE, E.G., FEDERAL RADIO COMM'N V. NELSON
BROS. CO., 289 U.S. 266, 282 (1933) ("THE POWER OF CONGRESS IN THE
REGULATION OF INTERSTATE COMMERCE IS NOT FETTERED BY THE NECESSITY OF
MAINTAINING EXISTING ARRANGEMENTS WHICH WOULD CONFLICT WITH THE
EXECUTION OF ITS POLICY").  JUDGE TUTTLE HAS ELABORATED, GENERAL
TELEPHONE CO. OF SOUTHWEST V. UNITED STATES, 449 F.2D 846, 863-864 (CA5
1971): 

"IN A COMPLEX AND DYNAMIC INDUSTRY SUCH AS THE COMMUNICATIONS FIELD,
IT CANNOT BE EXPECTED THAT THE AGENCY CHARGED WITH ITS REGULATION WILL
HAVE PERFECT CLAIRVOYANCE.  INDEED AS JUSTICE CARDOZO ONCE SAID,
'HARDSHIP MUST AT TIMES RESULT FROM POSTPONEMENT OF THE RULE OF ACTION
TILL A TIME WHEN ACTION IS COMPLETE.  IT IS ONE OF THE CONSEQUENCES OF
THE LIMITATIONS OF THE HUMAN INTELLECT AND OF THE DENIAL TO LEGISLATORS
AND JUDGES OF INFINITE PREVISION.'  CARDOZO, THE NATURE OF THE JUDICIAL
PROCESS 145 (1921).  THE COMMISSION, THUS, MUST BE AFFORDED SOME LEEWAY
IN DEVELOPING POLICIES AND RULES TO FIT THE EXIGENCIES OF THE
BURGEONING CATV INDUSTRY.  WHERE THE ON-RUSHING COURSE OF EVENTS (HAS)
OUTPACED THE REGULATORY PROCESS, THE COMMISSION SHOULD BE ENABLED TO
REMEDY THE (PROBLEM) . . . BY RETROACTIVE ADJUSTMENTS, PROVIDED THEY
ARE REASONABLE . . . 

"ADMITTEDLY THE RULE HERE AT ISSUE HAS AN EFFECT ON ACTIVITIES
EMBARKED UPON PRIOR TO THE ISSUANCE OF THE COMMISSION'S FINAL ORDER AND
REPORT.  NONETHELESS THE ANNOUNCEMENT OF A NEW POLICY WILL INEVITABLY
HAVE RETROACTIVE CONSEQUENCES . . . THE PROPERTY OF REGULATED
INDUSTRIES IS HELD SUBJECT TO SUCH LIMITATIONS AS MAY REASONABLY BE
IMPOSED UPON IT IN THE PUBLIC INTEREST AND THE COURTS HAVE FREQUENTLY
RECOGNIZED THAT NEW RULES MAY ABOLISH OR MODIFY PRE-EXISTING
INTERESTS." 

WITH REGARD TO FEDERAL INFRINGEMENT OF FRANCHISE RIGHTS, SEE
GENERALLY BARNETT, N. 21, SUPRA, AT 703-705 AND N. 116. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE RESULT. 

THIS CASE PRESENTS QUESTIONS OF EXTRAORDINARY DIFFICULTY AND
SENSITIVITY IN THE COMMUNICATIONS FIELD, AS THE OPINIONS OF THE DIVIDED
COURT OF APPEALS AND OUR OWN DIVISIONS REFLECT.  AS MR. JUSTICE BRENNAN
HAS NOTED, CONGRESS COULD NOT ANTICIPATE THE ADVENT OF CATV WHEN IT
ENACTED THE REGULATORY SCHEME NEARLY 40 YEARS AGO.  YET THAT STATUTORY
SCHEME PLAINLY ANTICIPATED THE NEED FOR COMPREHENSIVE REGULATION AS
PERVASIVE AS THE REACH OF THE INSTRUMENTALITIES OF BROADCASTING. 

IN THE FOUR DECADES SPANNING THE LEFT OF THE COMMUNICATIONS ACT, THE
COURTS HAVE CONSISTENTLY CONSTRUED THE ACT AS GRANTING PERVASIVE
JURISDICTION TO THE COMMISSION TO MEET THE EXPANSION AND DEVELOPMENT OF
BROADCASTING.  THAT APPROACH WAS BROAD ENOUGH TO EMBRACE THE ADVENT OF
CATV, AS INDICATED IN THE PLURALITY OPINION.  CATV IS DEPENDENT TOTALLY
ON BROADCAST SIGNALS AND IS A SIGNIFICANT LINK IN THE SYSTEM AS A WHOLE
AND THEREFORE MUST BE SEEN AS WITHIN THE JURISDICTION OF THE ACT. 

CONCEDEDLY, THE COMMUNICATIONS ACT DID NOT EXPLICITLY CONTEMPLATE
EITHER CATV OR THE JURISDICTION OF THE COMMISSION HAS NOW ASSERTED. 
HOWEVER, CONGRESS WAS WELL AWARE IN THE 1930'S THAT BROADCASTING WAS A
DYNAMIC INSTRUMENTALITY, THAT ITS FUTURE COULD NOT BE PREDICTED, THAT
SCIENTIFIC DEVELOPMENTS WOULD INEVITABLY ENLARGE THE ROLE AND SCOPE OF
BROADCASTING, AND THAT, IN CONSEQUENCE, REGULATORY SCHEMES MUST BE
FLEXIBLE AND VIRTUALLY OPENENDED. 

CANDOR REQUIRES ACKNOWLEDGEMENT, FOR ME AT LEAST, THAT THE
COMMISSION'S POSITION STRAINS THE OUTER LIMITS OF EVEN THE OPEN-ENDED
AND PERVASIVE JURISDICTION THAT HAS EVOLVED THE DECISIONS OF THE
COMMISSION AND THE COURTS.  THE ALMOST EXPLOSIVE DEVELOPMENT OF CATV
SUGGESTS THE NEED OF A COMPREHENSIVE RE-EXAMINATION OF THE STATUTORY
SCHEME AS IT RELATES TO THIS NEW DEVELOPMENT, SO THAT THE BASIC
POLICIES ARE CONSIDERED BY CONGRESS AND NOT LEFT ENTIRELY TO THE
COMMISSION AND THE COURTS. 

I AGREE WITH THE PLURALITY'S REJECTION OF ANY MEANINGFUL ANALOGY
BETWEEN REQUIRING CATV OPERATORS TO DEVELOP PROGRAMING AND THE CONCEPT
OF COMMANDEERING SOMEONE TO ENGAGE IN BROADCASTING.  THOSE WHO EXPLOIT
THE EXISTING BROADCAST SIGNALS FOR PRIVATE COMMERCIAL SURFACE
TRANSMISSION BY CATV-- TO WHICH THEY MAKE NO CONTRIBUTION-- ARE NOT
EXACTLY STRANGERS TO THE STREAM OF BROADCASTING.  THE ESSENCE OF THE
MATTER IS THAT WHEN THEY INTERRUPT THE SIGNAL AND PUT IT TO THEIR OWN
USE FOR PROFIT, THEY TAKE ON BURDENS, ONE OF WHICH IS REGULATION BY THE
COMMISSION.     I AM NOT FULLY PERSUADED THAT THE COMMISSION HAS MADE
THE CORRECT DECISION IN THIS CASE AND THE THOUGHTFUL OPINIONS IN THE
COURT OF APPEALS AND THE DISSENTING OPINION HERE REFLECT SOME OF MY
RESERVATIONS.  BUT THE SCOPE OF OUR REVIEW IS LIMITED AND DOES NOT
PERMIT ME TO RESOLVE THIS ISSUE AS PERHAPS I WOULD WERE I A MEMBER OF
THE FEDERAL COMMUNICATIONS COMMISSION.  THAT I MIGHT TAKE A DIFFERENT
POSITION AS A MEMBER OF THE COMMISSION GIVES ME NO LICENSE TO DO SO
HERE.  CONGRESS HAS CREATED ITS INSTRUMENTALITY TO REGULATE
BROADCASTING, HAS GIVEN IT PERVASIVE POWERS, AND THE COMMISSION HAS
GENERATIONS OF EXPERIENCE AND "FEEL" FOR THE PROBLEM.  I THEREFORE
CONCLUDE THAT UNTIL CONGRESS ACTS, THE COMMISSION SHOULD BE ALLOWED
WIDE LATITUDE AND I THEREFORE CONCUR IN THE RESULT REACHED BY THIS
COURT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART, MR. JUSTICE
POWELL, AND MR. JUSTICE REHNQUIST CONCUR, DISSENTING. 

THE POLICIES REFLECTED IN THE PLURALITY OPINION MAY BE WISE ONES. 
BUT WHETHER CATV SYSTEMS SHOULD BE REQUIRED TO ORIGINATE PROGRAMS IS A
DECISION THAT WE CERTAINLY ARE NOT COMPETENT TO MAKE AND IN MY JUDGMENT
THE COMMISSION IS NOT AUTHORIZED TO MAKE.  CONGRESS IS THE AGENCY TO
MAKE THE DECISION AND CONGRESS HAS NOT ACTED. 

CATV CAPTURES TV AND RADIO SIGNALS, CONVERTS THE SIGNALS, AND
CARRIES THEM BY MICROWAVE RELAY TRANSMISSION OR BY COAXIAL CABLES INTO
COMMUNITIES UNABLE TO RECEIVE THE SIGNALS DIRECTLY.  IN UNITED STATES
V. SOUTHWESTERN CABLE CO., 392 U.S. 157, WE UPHELD THE POWER OF THE
COMMISSION TO REGULATE THE TRANSMISSION OF SIGNALS.  AS WE SAID IN THAT
CASE: 

     "CATV SYSTEMS PERFORM EITHER OR BOTH OF TWO FUNCTIONS.  FIRST,

  THEY MAY SUPPLEMENT BROADCASTING BY FACILITATING SATISFACTORY

  RECEPTION OF LOCAL STATIONS IN ADJACENT AREAS IN WHICH SUCH

RECEPTION WOULD NOT OTHERWISE BE POSSIBLE; AND SECOND, THEY MAY

  TRANSMIT TO SUBSCRIBERS THE SIGNALS OF DISTANT STATIONS ENTIRELY

  BEYOND THE RANGE OF LOCAL ANTENNAE.  AS THE NUMBER AND SIZE OF

  CATV SYSTEMS HAVE INCREASED, THEIR PRINCIPAL FUNCTION HAS MORE

  FREQUENTLY BECOME THE IMPORTATION OF DISTANT SIGNALS."  ID., AT

  163. 

CATV EVOLVED AFTER THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1064, WAS
PASSED.  BUT WE HELD THAT THE REACH OF THE ACT, WHICH EXTENDS "TO ALL
INTERSTATE AND FOREIGN COMMUNICATION BY WIRE OR RADIO," 47 U.S.C.
152(A), WAS NOT LIMITED TO THE PRECISE METHODS OF COMMUNICATION THEN
KNOWN.  392 U.S.,AT 173. 

COMPULSORY ORIGINATION OF PROGRAMS IS, HOWEVER, A FAR CRY FROM THE
REGULATION OF COMMUNICATIONS APPROVED IN SOUTHWESTERN CABLE. 
ORIGINATION REQUIRES NEW INVESTMENT AND NEW AND DIFFERENT EQUIPMENT,
AND AN ENTIRELY DIFFERENT CAST OF PERSONNEL.  /1/  SEE 20 F.C.C.2D 201,
210-211.  WE MARKED THE DIFFERENCE BETWEEN COMMUNICATION AND
ORIGINATION IN FORTNIGHTLY CORP. V. UNITED ARTISTS TELEVISION, 392 U.S.
390, AND MADE CLEAR HOW FOREIGN THE ORIGINATION OF PROGRAMS IS TO
CATV'S TRADITIONAL TRANSMISSION OF SIGNALS.  IN THAT CASE, CATV WAS
SOUGHT TO BE HELD LIABLE FOR INFRINGEMENT OF COPYRIGHTS OF MOVIES
LICENSED TO BROADCASTERS AND CARRIED BY CATV.  WE HELD CATV NOT LIABLE,
SAYING: 

"ESSENTIALLY, A CATV SYSTEM NO MORE THAN ENHANCES THE VIEWER'S
CAPACITY TO RECEIVE THE BROADCASTER'S SIGNALS; IT PROVIDES A WELL
LOCATED ANTENNA WITH AN EFFICIENT CONNECTION TO THE VIEWER'S TELEVISION
SET.  IT IS TRUE THAT A CATV SYSTEM PLAYS AN 'ACTIVE'  ROLE IN MAKING
RECEPTION POSSIBLE IN A GIVEN AREA, BUT SO DO ORDINARY TELEVISION SETS
AND ANTENNAS.  CATV EQUIPMENT IS POWERFUL AND SOPHISTICATED, BUT THE
BASIC FUNCTION THE EQUIPMENT SERVES IS LITTLE DIFFERENT FROM THAT
SERVED BY THE EQUIPMENT GENERALLY FURNISHED BY A TELEVISION VIEWER.  IF
AN INDIVIDUAL ERECTED AN ANTENNA ON A HILL, STRUNG A CABLE TO HIS
HOUSE, AND INSTALLED THE NECESSARY AMPLIFYING EQUIPMENT, HE WOULD NOT
BE 'PERFORMING' THE PROGRAMS HE RECEIVED ON HIS TELEVISION SET.  THE
RESULT WOULD BE NO DIFFERENT IF SEVERAL PEOPLE COMBINED TO ERECT A
COOPERATIVE ANTENNA FOR THE SAME PURPOSE.  THE ONLY DIFFERENCE IN THE
CASE OF CATV IS THAT THE ANTENNA SYSTEM IS ERECTED AND OWNED NOT BY ITS
USERS BUT BY AN ENTREPRENEUR. 

     "THE FUNCTION OF CATV SYSTEMS HAS LITTLE IN COMMON WITH THE

  FUNCTION OF BROADCASTERS.  CATV SYSTEMS DO NOT IN FACT BROADCAST

  OR REBROADCAST.  BROADCASTERS SELECT THE PROGRAMS TO BE VIEWED;

  CATV SYSTEMS SIMPLY CARRY, WITHOUT EDITING, WHATEVER PROGRAMS

  THEY RECEIVE.  BROADCASTERS PROCURE PROGRAMS AND PROPAGATE THEM

TO THE PUBLIC; CATV SYSTEMS RECEIVE PROGRAMS THAT HAVE BEEN

  RELEASED TO THE PUBLIC AND CARRY THEM BY PRIVATE CHANNELS TO

  ADDITIONAL VIEWERS.  WE HOLD THAT CATV OPERATORS, LIKE VIEWERS

  AND UNLIKE BROADCASTERS, DO NOT PERFORM THE PROGRAMS THAT THEY

  RECEIVE AND CARRY."  ID., AT 399-401. 

THE ACT FORBIDS ANY PERSON FROM OPERATING A BROADCAST STATION
WITHOUT FIRST OBTAINING A LICENSE FROM THE COMMISSION.  47 U.S.C. 301. 
ONLY QUALIFIED PERSONS MAY OBTAIN LICENSES AND THEY MUST OPERATE IN THE
PUBLIC INTEREST.  47 U.S.C. 308-309.  BUT NOWHERE IN THE ACT IS THERE
THE SLIGHTEST SUGGESTION THAT A PERSON MAY BE COMPELLED TO ENTER THE
BROADCASTING OR CABLECASTING FIELD.  RATHER, THE ACT EXTENDS "TO ALL
INTERSTATE AND FOREIGN COMMUNICATION BY WIRE OR RADIO . . . WHICH
ORIGINATES AND/OR IS RECEIVED WITHIN THE UNITED STATES."  47 U.S.C.
152(A) (EMPHASIS ADDED).  WHEN THE COMMISSION JURISDICTION IS SO
LIMITED, IT STRAINS LOGIC TO HOLD THAT THIS JURISDICTION MAY BE
EXPANDED BY REQUIRING SOMEONE TO "ORIGINATE" OR "RECEIVE." 

THE ACT, WHEN DEALING WITH BROADCASTERS, SPEAKS OF "APPLICANTS,"
"APPLICATIONS FOR LICENSES," SEE 47 U.S.C. 307-308, AND "WHETHER THE
PUBLIC INTEREST, CONVENIENCE, AND NECESSITY WILL BE SERVED BY THE
GRANTING OF SUCH APPLICATION."  47 U.S.C. 309(A).  THE EMPHASIS IN THE
COMMITTEE REPORTS WAS ON "ORIGINAL APPLICATIONS" AND "APPLICATION FOR
THE RENEWAL OF A LICENSE."  H.R. REP. NO. 1918, 73D CONG., 2D SESS.,
48; S.REP.  NO.781, 73D CONG., 2D SESS., 7, 9.  THE IDEA THAT A CARRIER
OR ANY OTHER PERSON CAN BE DRAFTED AGAINST HIS WILL TO BECOME A
BROADCASTER IS COMPLETELY FOREIGN TO THE HISTORY OF THE ACT, AS I READ
IT. 

CATV IS SIMPLY A CARRIER HAVING NO MORE CONTROL OVER THE MESSAGE
CONTENT THAN DOES A TELEPHONE COMPANY.  A CARRIER MAY, OF COURSE, SEEK
A BROADCASTER'S LICENSE; BUT THERE IS NOT THE SLIGHTEST SUGGESTION IN
THE ACT OR IN ITS HISTORY THAT A CARRIER CAN BE BLUDGEONED INTO
BECOMING A BROADCASTER WHILE ALL OTHER BROADCASTERS LIVE UNDER MORE
LENIENT RULES.  THERE IS NOT THE SLIGHTEST CLUE IN THE ACT THAT CATV
CARRIERS CAN BE COMPULSORILY CONVERTED INTO BROADCASTERS. 

THE PLURALITY OPINION PERFORMS THE LEGERDEMAIN BY SAYING THAT THE
REQUIREMENT OF CATV ORIGINATION IS "REASONABLY ANCILLARY" TO THE
COMMISSION'S POWER TO REGULATE TELEVISION BROADCASTING.  /2/  THAT
REQUIRES A BRAND-NEW AMENDMENT TO THE BROADCASTING PROVISIONS OF THE
ACT, WHICH ONLY THE CONGRESS CAN EFFECT.  THE COMMISSION IS NOT GIVEN
CARTE BLANCHE TO INITIATE BROADCASTING STATIONS; IT CANNOT FORCE PEOPLE
INTO THE BUSINESS.  IT CANNOT SAY TO ONE WHO APPLIES FOR A BROADCAST
OUTLET IN CITY A THAT THE NEED IS GREATER IN CITY B AND HE WILL BE
LICENSED THERE.  THE FACT THAT THE COMMISSION HAS AUTHORITY TO REGULATE
ORIGINATION OF PROGRAMS IF CATV DECIDES TO ENTER THE FIELD DOES NOT
MEAN THAT IT CAN COMPEL CATV TO ORIGINATE PROGRAMS.  THE FACT THAT THE
ACT DIRECTS THE COMMISSION TO ENCOURAGE THE LARGER AND MORE EFFECTIVE
USE OF RADIO IN THE PUBLIC INTEREST, 47 U.S.C. 303(G), RELATES TO THE
OBJECTIVES OF THE ACT AND DOES NOT GRANT POWER TO COMPEL PEOPLE TO
BECOME BROADCASTERS ANY MORE THAN IT GRANTS THE POWER TO COMPEL
BROADCASTERS TO BECOME CATV OPERATORS. 

THE UPSHOT OF TODAY'S DECISION IS TO MAKE THE COMMISSION'S AUTHORITY
OVER ACTIVITIES "ANCILLARY" TO ITS RESPONSIBILITIES GREATER THAN ITS
AUTHORITY OVER ANY BROADCAST LICENSEE.  OF COURSE, THE COMMISSION CAN
REGULATE A CATV THAT TRANSMITS BROADCAST SIGNALS.  BUT TO ENTRUST THE
COMMISSION WITH THE POWER TO FORCE SOME, A FEW, OR ALL CATV OPERATORS
INTO THE BROADCAST BUSINESS IS TO GIVE IT A FORBIDDING AUTHORITY. 
CONGRESS MAY DECIDE TO DO SO.  BUT THE STEP IS A LEGISLATIVE MEASURE SO
EXTREME THAT WE SHOULD NOT FIND IT INTERSTITIALLY AUTHORIZED IN THE
VAGUE LANGUAGE OF THE ACT. 

I WOULD AFFIRM THE COURT OF APPEALS. 

/1/  IN LIGHT OF THE STRIKING DIFFERENCE BETWEEN ORIGINATION AND
COMMUNICATION, THE SUGGESTION THAT "THE REGULATION IS NO DIFFERENT FROM
COMMISSION RULES GOVERNING THE TECHNOLOGICAL QUALITY OF CATV BROADCAST
CARRIAGE," ANTE, AT 669, APPEARS MISCONCEIVED. 

/2/  THE SEPARATE OPINION OF THE CHIEF JUSTICE REACHES THE SAME
RESULT BY SAYING "CATV IS DEPENDENT TOTALLY ON BROADCAST SIGNALS AND IS
A SIGNIFICANT LINK IN THE SYSTEM AS A WHOLE AND THEREFORE MUST BE SEEN
AS WITHIN THE JURISDICTION OF THE ACT."  ANTE, AT 675.  THE DIFFICULTY
IS THAT THIS ANALYSIS KNOWS NO LIMITS SHORT OF COMPLETE DOMINATION OF
THE FIELD OF COMMUNICATIONS BY THE COMMISSION.  THIS REASONING--
DIVORCED AS IT IS FROM ANY SPECIFIC STATUTORY BASIS-- COULD AS WELL
APPLY TO THE MANUFACTURERS OF RADIO AND TELEVISION BROADCASTING AND
RECEIVING EQUIPMENT. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES ET AL. WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
RICHARD B. STONE, JOHN W. PETTIT, AND EDWARD J. KUHLMANN. 

HARRY M. PLOTKIN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE WAYNE W. OWEN, GEORGE H. SHAPIRO, AND DAVID TILLOTSON. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY WILLIAM J.
SCOTT, ATTORNEY GENERAL, PETER A. FASSEAS, SPECIAL ASSISTANT ATTORNEY
GENERAL, AND ROLAND S. HOMET, JR., FOR THE STATE OF ILLINOIS; BY PAUL
RODGERS FOR THE NATIONAL ASSOCIATION OF REGULATORY UTILITY
COMMISSIONERS; AND BY MELVIN L. WULF FOR THE AMERICAN CIVIL LIBERTIES
UNION. 
..END :



















KIRBY V. ILLINOIS, 406 U.S. 682 


       KIRBY V. ILLINOIS

        CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIRST

           DISTRICT

     NO. 70-5061.  ARGUED NOVEMBER 11, 1971-- REARGUED MARCH

           20-21, 1972-- DECIDED JUNE 7, 1972 


PETITIONER AND A COMPANION WERE STOPPED FOR INTERROGATION.  WHEN EACH
PRODUCED, IN THE COURSE OF DEMONSTRATING IDENTIFICATION, ITEMS BEARING
THE NAME "SHARD," THEY WERE ARRESTED AND TAKEN TO THE POLICE STATION. 
THERE, THE ARRESTING OFFICERS LEARNED OF A ROBBERY OF ONE "SHARD" TWO
DAYS BEFORE.  THE OFFICERS SENT FOR SHARD, WHO IMMEDIATELY IDENTIFIED
PETITIONER AND HIS COMPANION AS THE ROBBERS.  AT THE TIME OF THE
CONFRONTATION PETITIONER AND HIS COMPANION WERE NOT ADVISED OF THE
RIGHT TO COUNSEL, NOR DID EITHER ASK FOR OR RECEIVE LEGAL ASSISTANCE. 
SIX WEEKS LATER, PETITIONER AND HIS COMPANION WERE INDICTED FOR THE
SHARD ROBBERY.  AT THE TRIAL, AFTER A PRETRIAL, AFTER A PRETRIAL MOTION
TO SUPPRESS HIS TESTIMONY HAD BEEN OVERRULED, SHARD TESTIFIED AS TO HIS
PREVIOUS IDENTIFICATION OF PETITIONER AND HIS COMPANION, AND AGAIN
IDENTIFIED THEM AS THE ROBBERS.  THE DEFENDANTS WERE FOUND GUILTY AND
PETITIONER'S CONVICTION WAS UPHELD ON APPEAL, THE APPELLATE COURT
HOLDING THAT THE PER SE EXCLUSIONARY RULE OF UNITED STATES V. WADE, 388
U.S. 218, AND GILBERT V. CALIFORNIA, 388 U.S. 263, DID NOT APPLY TO PRE
INDICTMENT-CONFRONTATIONS.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 687
691. 

121 ILL.APP.2D 323, 257 N.E.2D 589, AFFIRMED. 

MR. JUSTICE STEWART, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE REHNQUIST, CONCLUDED THAT A SHOWUP AFTER
ARREST, BUT BEFORE THE INITIATION OF ANY ADVERSARY CRIMINAL PROCEEDING
(WHETHER BY WAY OF FORMAL CHARGE, PRELIMINARY HEARING, INDICTMENT,
INFORMATION, OR ARRAIGNMENT), UNLIKE THE POST-INDICTMENT CONFRONTATIONS
INVOLVED IN GILBERT AND WADE, IS NOT A CRIMINAL PROSECUTION AT WHICH
THE ACCUSED, AS A MATTER OF ABSOLUTE RIGHT, IS ENTITLED TO COUNSEL. 
PP. 687-691. 

MR. JUSTICE POWELL CONCURRED IN THE RESULT.  P. 691. 

STEWART, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION
IN WHICH BURGER, C.J., FILED A CONCURRING STATEMENT, POST, P. 691. 
POWELL, J., FILED A STATEMENT CONCURRING IN THE RESULT, POST, P. 691. 
BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL,
J.J., JOINED, POST, P. 691.  WHITE, J., FILED A DISSENTING STATEMENT,
POST, P. 705. 

MR. JUSTICE STEWART ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, AND MR.
JUSTICE REHNQUIST JOIN. 

IN UNITED STATES V. WADE, 388 U.S. 218, AND GILBERT V. CALIFORNIA,
388 U.S. 263, THIS COURT HELD "THAT A POST-INDICTMENT PRETRIAL LINEUP
AT WHICH THE ACCUSED IS EXHIBITED TO IDENTIFYING WITNESSES IS A
CRITICAL STAGE OF THE CRIMINAL PROSECUTION; THAT POLICE CONDUCT OF SUCH
A LINEUP WITHOUT NOTICE TO AND IN THE ABSENCE OF HIS COUNSEL DENIES THE
ACCUSED HIS SIXTH (AND FOURTEENTH) AMENDMENT RIGHT TO COUNSEL AND CALLS
IN QUESTION THE ADMISSIBILITY AT TRIAL OF THE IN-COURT IDENTIFICATIONS
OF THE ACCUSED BY WITNESSES WHO ATTENDED THE LINEUP."  GILBERT V.
CALIFORNIA, SUPRA, AT 272.  THOSE CASES FURTHER HELD THAT NO "IN-COURT
IDENTIFICATIONS" ARE ADMISSIBLE IN EVIDENCE IF THEIR "SOURCE"  IS A
LINEUP CONDUCTED IN VIOLATION OF THIS CONSTITUTIONAL STANDARD.  "ONLY A
PER SE EXCLUSIONARY RULE AS TO SUCH TESTIMONY CAN BE AN EFFECTIVE
SANCTION," THE COURT SAID, "TO ASSURE THAT LAW ENFORCEMENT AUTHORITIES
WILL RESPECT THE ACCUSED'S CONSTITUTIONAL RIGHT TO THE PRESENCE OF HIS
COUNSEL AT THE CRITICAL LINEUP."  ID., AT 273.  IN THE PRESENT CASE WE
ARE ASKED TO EXTEND THE WADE-GILBERT PER SE EXCLUSIONARY RULE TO
IDENTIFICATION TESTIMONY BASED UPON A POLICE STATION SHOWUP THAT TOOK
PLACE BEFORE THE DEFENDANT HAD BEEN INDICTED OR OTHERWISE FORMALLY
CHARGED WITH ANY CRIMINAL OFFENSE. 

ON FEBRUARY 21, 1968, A MAN NAMED WILLIE SHARD REPORTED TO THE
CHICAGO POLICE THAT THE PREVIOUS DAY TWO MEN HAD ROBBED HIM ON A
CHICAGO STREET OF A WALLET CONTAINING, AMONG OTHER THINGS, TRAVELER'S
CHECKS AND A SOCIAL SECURITY CARD.  ON FEBRUARY 22, TWO POLICE OFFICERS
STOPPED THE PETITIONER AND A COMPANION, RALPH BEAN, ON WEST MADISON
STREET IN CHICAGO.  /1/  WHEN ASKED FOR IDENTIFICATION, THE PETITIONER
PRODUCED A WALLET THAT CONTAINED THREE TRAVELER'S CHECKS AND A SOCIAL
SECURITY CARD, ALL BEARING THE NAME OF WILLIE SHARD.  PAPERS WITH
SHARD'S NAME ON THEM WERE ALSO FOUND IN BEAN'S POSSESSION.  WHEN ASKED
TO EXPLAIN HIS POSSESSION OF SHARD'S PROPERTY, THE PETITIONER FIRST
SAID THAT THE TRAVELER'S CHECKS WERE "PLAY MONEY," AND THEN TOLD THE
OFFICERS THAT HE HAD WON THEM IN A CRAP GAME.  THE OFFICERS THEN
ARRESTED THE PETITIONER AND BEAN AND TOOK THEM TO A POLICE STATION. 

ONLY AFTER ARRIVING AT THE POLICE STATION, AND CHECKING THE RECORDS
THERE, DID THE ARRESTING OFFICERS LEARN OF THE SHARD ROBBERY.  A POLICE
CAR WAS THEN DISPATCHED TO SHARD'S PLACE OF EMPLOYMENT, WHERE IT PICKED
UP SHARD AND BROUGHT HIM TO THE POLICE STATION.  IMMEDIATELY UPON
ENTERING THE ROOM IN THE POLICE STATION WHERE THE PETITIONER AND BEAN
WERE SEATED AT A TABLE, SHARD POSITIVELY IDENTIFIED THEM AS THE MEN WHO
HAD ROBBED HIM TWO DAYS EARLIER.  NO LAWYER WAS PRESENT IN THE ROOM,
AND NEITHER THE PETITIONER NOR BEAN HAD ASKED FOR LEGAL ASSISTANCE, OR
BEEN ADVISED OF ANY RIGHT TO THE PRESENCE OF COUNSEL. 

MORE THAN SIX WEEKS LATER, THE PETITIONER AND BEAN WERE INDICTED FOR
THE ROBBERY OF WILLIE SHARD.  UPON ARRAIGNMENT, COUNSEL WAS APPOINTED
TO REPRESENT THEM, AND THEY PLEADED NOT GUILTY.  A PRETRIAL MOTION TO
SUPPRESS SHARD'S IDENTIFICATION TESTIMONY WAS DENIED, AND AT THE TRIAL
SHARD TESTIFIED AS A WITNESS FOR THE PROSECUTION.  IN HIS TESTIMONY HE
DESCRIBED HIS IDENTIFICATION OF THE TWO MEN AT THE POLICE STATION ON
FEBRUARY 22, /2/  AND IDENTIFIED THEM AGAIN IN THE COURTROOM AS THE MEN
WHO HAD ROBBED HIM ON FEBRUARY 20.  /3/  HE WAS CROSS-EXAMINED AT
LENGTH REGARDING THE CIRCUMSTANCES OF HIS IDENTIFICATION OF THE TWO
DEFENDANTS.  CF. POINTER V. TEXAS, 380 U.S. 400.  THE JURY FOUND BOTH
DEFENDANTS GUILTY, AND THE PETITIONER'S CONVICTION WAS AFFIRMED ON
APPEAL.  PEOPLE V. KIRBY, 121 ILL.APP.2D 323, 257 N.E.2D 589.  /4/  THE
ILLINOIS APPELLATE COURT HELD THAT THE ADMISSION OF SHARD'S TESTIMONY
WAS NOT ERROR, RELYING UPON AN EARLIER DECISION OF THE ILLINOIS SUPREME
COURT, PEOPLE V. PALMER, 41 ILL.2D 571, 244 N.E.2D 173, HOLDING THAT
THE WADE-GILBERT PER SE EXCLUSIONARY RULE IS NOT APPLICABLE TO PRE
INDICTMENT CONFRONTATIONS.  WE GRANTED CERTIORARI, LIMITED TO THIS
QUESTION.  402 U.S. 995.  /5/

        I 

WE NOTE AT THE OUTSET THAT THE CONSTITUTIONAL PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION IS IN NO WAY IMPLICATED HERE.  THE COURT
EMPHATICALLY REJECTED THE CLAIMED APPLICABILITY OF THAT CONSTITUTIONAL
GUARANTEE IN WADE ITSELF: 

     "NEITHER THE LINEUP ITSELF NOR ANYTHING SHOWN BY THIS RECORD

  THAT WADE WAS REQUIRED TO DO IN THE LINEUP VIOLATED HIS PRIVILEGE

  AGAINST SELF INCRIMINATION.  WE HAVE ONLY RECENTLY REAFFIRMED

  THAT THE PRIVILEGE 'PROTECTS AN ACCUSED ONLY FROM BEING COMPELLED

  TO TESTIFY AGAINST HIMSELF, OR OTHERWISE PROVIDE THE STATE WITH

  EVIDENCE OF A TESTIMONIAL OR COMMUNICATIVE NATURE . . . '

  SCHMERBER V. CALIFORNIA, 384 U.S. 757, 761 . . . " 388 U.S.,AT

  221. 

     "WE HAVE NO DOUBT THAT COMPELLING THE ACCUSED MERELY TO
EXHIBIT

  HIS PERSON FOR OBSERVATION BY A PROSECUTION WITNESS PRIOR TO

  TRIAL INVOLVES NO COMPULSION OF THE ACCUSED TO GIVE EVIDENCE

  HAVING TESTIMONIAL SIGNIFICANCE.  IT IS COMPULSION OF THE ACCUSED

  TO EXHIBIT HIS PHYSICAL CHARACTERISTICS, NOT COMPULSION TO

  DISCLOSE ANY KNOWLEDGE HE MIGHT HAVE . . . "  ID., AT 222. 

IT FOLLOWS THAT THE DOCTRINE OF MIRANDA V. ARIZONA, 384 U.S. 436,
HAS NO APPLICABILITY WHATEVER TO THE ISSUE BEFORE US; FOR THE MIRANDA
DECISION WAS BASED EXCLUSIVELY UPON THE FIFTH AND FOURTEENTH AMENDMENT
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION, UPON THE THEORY THAT
CUSTODIAL INTERROGATION IS INHERENTLY COERCIVE. 

THE WADE-GILBERT EXCLUSIONARY RULE, BY CONTRAST, STEMS FROM A QUITE
DIFFERENT CONSTITUTIONAL GUARANTEE-- THE GUARANTEE OF THE RIGHT TO
COUNSEL CONTAINED IN THE SIXTH AND FOURTEENTH AMENDMENTS.  UNLESS ALL
SEMBLANCE OF PRINCIPLED CONSTITUTIONAL ADJUDICATION IS TO BE ABANDONED,
THEREFORE, IT IS TO THE DECISIONS CONSTRUING THAT GUARANTEE THAT WE
MUST LOOK IN DETERMINING THE PRESENT CONTROVERSY. 

IN A LINE OF CONSTITUTIONAL CASES IN THIS COURT STEMMING BACK TO THE
COURT'S LANDMARK OPINION IN POWELL V. ALABAMA, 287 U.S. 45, IT HAS BEEN
FIRMLY ESTABLISHED THAT A PERSON'S SIXTH AND FOURTEENTH AMENDMENT RIGHT
TO COUNSEL ATTACHES ONLY AT OR AFTER THE TIME THAT ADVERSARY JUDICIAL
PROCEEDINGS HAVE BEEN INITIATED AGAINST HIM.  SEE POWELL V. ALABAMA,
SUPRA; JOHNSON V. ZERBST, 304 U.S. 458; HAMILTON V. ALABAMA, 368 U.S.
52; GIDEON V. WAINWRIGHT, 372 U.S. 335; WHITE V. MARYLAND, 373 U.S. 59;
MASSIAH V. UNITED STATES, 377 U.S. 201; UNITED STATES V. WADE, 388 U.S.
218; GILBERT V. CALIFORNIA, 388 U.S. 263; COLEMAN V. ALABAMA, 399 U.S.
1. 

THIS IS NOT TO SAY THAT A DEFENDANT IN A CRIMINAL CASE HAS A
CONSTITUTIONAL RIGHT TO COUNSEL ONLY AT THE TRIAL ITSELF.  THE POWELL
CASE MAKES CLEAR THAT THE RIGHT ATTACHES AT THE TIME OF ARRAIGNMENT,
/6/  AND THE COURT HAS RECENTLY HELD THAT IT EXISTS ALSO AT THE TIME OF
A PRELIMINARY HEARING.  COLEMAN V. ALABAMA, SUPRA.  BUT THE POINT IS
THAT, WHILE MEMBERS OF THE COURT HAVE DIFFERED AS TO EXISTENCE OF THE
RIGHT TO COUNSEL IN THE CONTEXTS OF SOME OF THE ABOVE CASES, ALL OF
THOSE CASES HAVE INVOLVED POINTS OF TIME AT OR AFTER THE INITIATION OF
ADVERSARY JUDICIAL CRIMINAL PROCEEDINGS-- WHETHER BY WAY OF FORMAL
CHARGE, PRELIMINARY HEARING, INDICTMENT, INFORMATION, OR ARRAIGNMENT. 

THE ONLY SEEMING DEVIATION FROM THIS LONG LINE OF CONSTITUTIONAL
DECISIONS WAS ESCOBEDO V. ILLINOIS, 378 U.S. 478.  BUT ESCOBEDO IS NOT
APPOSITE HERE FOR TWO DISTINCT REASONS.  FIRST, THE COURT IN RETROSPECT
PERCEIVED THAT THE "PRIME PURPOSE" OF ESCOBEDO WAS NOT TO VINDICATE THE
CONSTITUTIONAL RIGHT TO COUNSEL AS SUCH, PRIVILEGE AGAINST SELF
INCRIMINATION . . . " JOHNSON V. NEW JERSEY, 384 U.S. 719, 729. 
SECONDLY, AND PERHAPS EVEN MORE IMPORTANT FOR PURELY PRACTICAL
PURPOSES, THE COURT HAS LIMITED THE HOLDING OF ESCOBEDO TO ITS OWN
FACTS, JOHNSON V. NEW JERSEY, SUPRA, AT 733-734, AND THOSE FACTS ARE
NOT REMOTELY AKIN TO THE FACTS OF THE CASE BEFORE US. 

THE INITIATION OF JUDICIAL CRIMINAL PROCEEDINGS IS FAR FROM A MERE
FORMALISM.  IT IS THE STARTING POINT OF OUR WHOLE SYSTEM OF ADVERSARY
CRIMINAL JUSTICE.  FOR IT IS ONLY THEN THAT THE GOVERNMENT HAS
COMMITTED ITSELF TO PROSECUTE, AND ONLY THEN THAT THE ADVERSE POSITIONS
OF GOVERNMENT AND DEFENDANT HAVE SOLIDIFIED.  IT IS THEN THAT A
DEFENDANT FINDS HIMSELF FACED WITH THE PROSECUTORIAL FORCES OF
ORGANIZED SOCIETY, AND IMMERSED IN THE INTRICACIES OF SUBSTANTIVE AND
PROCEDURAL CRIMINAL LAW.  IT IS THIS POINT, THEREFORE, THAT MARKS THE
COMMENCEMENT OF THE "CRIMINAL PROSECUTIONS" TO WHICH ALONE THE EXPLICIT
GUARANTEES OF THE SIXTH AMENDMENT ARE APPLICABLE.  /7/  SEE POWELL V.
ALABAMA, 287 U.S.,AT 66-71; MASSIAH V. UNITED STATES, 377 U.S. 201;
SPANO V. NEW YORK, 360 U.S. 315, 324 (DOUGLAS J., CONCURRING). 

IN THIS CASE WE ARE ASKED TO IMPORT INTO A ROUTINE POLICE
INVESTIGATION AN ABSOLUTE CONSTITUTIONAL GUARANTEE HISTORICALLY AND
RATIONALLY APPLICABLE ONLY AFTER THE ONSET OF FORMAL PROSECUTORIAL
PROCEEDINGS.  WE DECLINE TO DO SO.  LESS THAN A YEAR AFTER WADE AND
GILBERT WERE DECIDED, THE COURT EXPLAINED THE RULE OF THOSE DECISIONS
AS FOLLOWS:  "THE RATIONALE OF THOSE CASES WAS THAT AN ACCUSED IS
ENTITLED TO COUNSEL AT ANY 'CRITICAL STAGE OF THE PROSECUTION,' AND
THAT A POST-INDICTMENT LINEUP IS SUCH A 'CRITICAL STAGE.'"  SIMMONS V.
UNITED STATES, 390 U.S. 377, 382-383.  WE DECLINE TO DEPART FROM THAT
RATIONALE TODAY BY IMPOSING A PER SE EXCLUSIONARY RULE UPON TESTIMONY
CONCERNING AN IDENTIFICATION THAT TOOK PLACE LONG BEFORE THE
COMMENCEMENT OF ANY PROSECUTION WHATEVER. 

        II 

WHAT HAS BEEN SAID IS NOT TO SUGGEST THAT THERE MAY NOT BE OCCASIONS
DURING THE COURSE OF A CRIMINAL INVESTIGATION WHEN THE POLICE DO ABUSE
IDENTIFICATION PROCEDURES.  SUCH ABUSES ARE NOT BEYOND THE REACH OF THE
CONSTITUTION.  AS THE COURT POINTED OUT IN WADE ITSELF, IT IS ALWAYS
NECESSARY TO "SCRUTINIZE ANY PRETRIAL CONFRONTATION . . . " 388 U.S.,AT
227.  THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS
FORBIDS A LINEUP THAT IS UNNECESSARILY SUGGESTIVE AND CONDUCIVE TO
IRREPARABLE MISTAKEN IDENTIFICATION.  STOVALL V. DENNO, 388 U.S. 293;
FOSTER V. CALIFORNIA, 394 U.S. 440.  /8/  WHEN A PERSON HAS NOT BEEN
FORMALLY CHARGED WITH A CRIMINAL OFFENSE, STOVALL STRIKES THE
APPROPRIATE CONSTITUTIONAL BALANCE BETWEEN THE RIGHT OF A SUSPECT TO BE
PROTECTED FROM PREJUDICIAL PROCEDURES AND THE INTEREST OF SOCIETY IN
THE PROMPT AND PURPOSEFUL INVESTIGATION OF AN UNSOLVED CRIME. 

              THE JUDGMENT IS AFFIRMED. 

/1/  THE OFFICERS STOPPED THE PETITIONER AND HIS COMPANION BECAUSE
THEY THOUGHT THE PETITIONER WAS A MAN NAMED HAMPTON, WHO WAS "WANTED"
IN CONNECTION WITH AN UNRELATED CRIMINAL OFFENSE.  THE LEGITIMACY OF
THIS STOP AND THE SUBSEQUENT ARREST IS NOT BEFORE US. 

/2/  "Q.  ALL RIGHT.  NOW, WILLIE, CALLING YOUR ATTENTION TO
FEBRUARY 22, 1968, DID YOU RECEIVE A CALL FROM THE POLICE ASKING YOU TO
COME DOWN TO THE STATION? 

"A.  YES, I DID. 

        *          *          *          * 

"Q.  WHEN YOU WENT DOWN THERE, WHAT IF ANYTHING, HAPPENED, WILLIE? 

"A.  WELL, I SEEN THE TWO MEN WAS DOWN THERE WHO ROBBED ME.

       *          *          *          * 

"Q.  WHO TOOK YOU TO THE POLICE STATION? 

"A.  THE POLICEMAN PICKED ME UP.

        * 

"MR. POMARO:  Q. WHEN YOU WENT TO THE POLICE STATION DID YOU SEE THE
TWO DEFENDANTS? 

"A.  YES, I DID. 

"Q.  DO YOU SEE THEM IN COURT TODAY? 

"A.  YES, SIR. 

"Q.  POINT THEM OUT, PLEASE? 

"A.  YES, THAT ONE THERE AND THE OTHER ONE.  (INDICATING.) 

"MR. POMARO:  INDICATING FOR THE RECORD THE DEFENDANTS BEAN AND
KIRBY. 

"Q.  AND YOU POSITIVELY IDENTIFIED THEM AT THE POLICE STATION, IS
THAT CORRECT? 

"A.  YES. 

"A.  DID ANY POLICE OFFICER MAKE ANY SUGGESTION TO YOU WHATSOEVER? 

        *          *        *          * 

"THE WITNESS:  NO, THEY DIDN'T." 

/3/  "Q.  WILLIE, WHEN YOU LOOKED BACK, WHEN YOU WERE WALKING DOWN THE
STREET AND FIRST SAW THE DEFENDANTS, WHEN YOU LOOKED BACK, DID YOU SEE
THEM THEN? 

"A.  YES, I SEEN THEM. 

"Q.  DID YOU GET A GOOD LOOK AT THEM THEN? 

"A.  YES, I DID. 

"Q.  ALL RIGHT.  NOW, WHEN THEY GRABBED YOU AND TOOK YOUR MONEY, DID
YOU SEE THEM THEN? 

"A.  YES, I DID. 

"Q.  DID YOU GET A GOOD LOOK AT THEM THEN? 

"A.  YES. 

"Q.  BOTH OF THEM? 

"A.  CORRECT. 

"Q.  WHEN THEY WALKED AWAY DID YOU SEE THEM THEN? 

"A.  YES. 

"Q.  DID YOU LOOK AT THEM, WILLIE? 

"A.  YES. 

"Q.  DID YOU GET A GOOD LOOK AT THEM? 

"A.  YES. 

"Q.  ARE THOSE THE SAME TWO FELLOWS?  LOOK AT THEM, WILLIE. 

"A.  CORRECT. 

"Q.  ARE THOSE THE SAME TWO THAT ROBBED YOU? 

"A.  YES. 

"Q.  YOU ARE SURE, WILLIE? 

"A.  YES." 

/4/  BEAN'S CONVICTION WAS REVERSED.  PEOPLE V. BEAN, 121 ILL.APP.2D
332, 257 N.E.2D 562. 

/5/  THE ISSUE OF THE APPLICABILITY OF WADE AND GILBERT TO PRE
INDICTMENT CONFRONTATION HAS SEVERELY DIVIDED THE COURTS.  COMPARE
STATE V. FIELDS, 104 ARIZ. 486, 455 P.2D 964; PERKINS V. STATE, 228
SO.2D 382 (FLA).; BUCHANAN V. COMMONWEALTH, 210 VA. 664, 173 S.E.2D
792; STATE V. WALTERS, 457 S.W.2D 817 (MO.), WITH UNITED STATES V.
GREENE, 139 U.S.APP.D.C. 9, 429 F.2D 193; RIVERS V. UNITED STATES, 400
F.2D 935 (CA5); UNITED STATES V. PHILLIPS, 427 F.2D 1035 (CA9);
COMMONWEALTH V. GUILLORY, 356 MASS. 591, 254 N.E.2D 427; PEOPLE V.
FOWLER, 1 CAL.3D 335, 461 P.2D 643; PALMER V. STATE, 45 MD.APP.  691,
249 A.2D 482; PEOPLE V. HUTTON, 21 MICH.APP.  312, 157 N.W.2D 860;
COMMONWEALTH V. WHITING, 439 PA. 205, 266 A.2D 438; IN RE HOLLEY, 107
R.I. 615, 268 A.2D 723; HAYES V. STATE, 46 WIS.2D 93, 175 N.W.2D 625. 
/6/  "(DURING PERHAPS THE MOST CRITICAL PERIOD OF THE PROCEEDINGS
AGAINST THESE DEFENDANTS, THAT IS TO SAY, FROM THE TIME OF THEIR
ARRAIGNMENT UNTIL THE BEGINNING OF THEIR TRIAL, WHEN CONSULTATION,
THOROUGH GOING INVESTIGATION AND PREPARATION WERE VITALLY IMPORTANT,
THE DEFENDANTS DID NOT HAVE THE AID OF COUNSEL IN ANY REAL SENSE,
ALTHOUGH THEY WERE AS MUCH ENTITLED TO SUCH AID DURING THAT PERIOD AS
AT THE TRIAL ITSELF."  POWELL V. ALABAMA 287 U.S. 45, 57. 

/7/  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE
RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE
AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH
DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE
INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED
WITH THE WITNESSES AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR
OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL
FOR HIS DEFENCE."  U.S. CONST., AMDT. VI. 

/8/  IN VIEW OF OUR LIMITED GRANT OF CERTIORARI, WE DO NOT CONSIDER
WHETHER THERE MIGHT HAVE BEEN A DEPRIVATION OF DUE PROCESS IN THE
PARTICULARIZED CIRCUMSTANCES OF THIS CASE.  THAT QUESTION REMAINS OPEN
FOR INQUIRY IN A FEDERAL HABEAS CORPUS PROCEEDING. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I AGREE THAT THE RIGHT TO COUNSEL ATTACHES AS SOON AS CRIMINAL
CHARGES ARE FORMALLY MADE AGAINST AN ACCUSED AND HE BECOMES THE SUBJECT
OF A "CRIMINAL PROSECUTION."  THEREFORE, I JOIN IN THE PLURALITY
OPINION AND IN THE JUDGMENT.  CF. COLEMAN V. ALABAMA, 399 U.S. 1, 21
(DISSENTING OPINION). 

MR. JUSTICE POWELL, CONCURRING IN THE RESULT. 

AS I WOULD NOT EXTEND THE WADE-GILBERT PER SE EXCLUSIONARY RULE, I
CONCUR IN THE RESULT REACHED BY THE COURT. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

AFTER PETITIONER AND RALPH BEAN WERE ARRESTED, POLICE OFFICERS
BROUGHT WILLIE SHARD, THE ROBBERY VICTIM, TO A ROOM IN A POLICE STATION
WHERE PETITIONER AND BEAN WERE SEATED AT A TABLE WITH TWO OTHER POLICE
OFFICERS.  SHARD TESTIFIED AT TRIAL THAT THE OFFICERS WHO BROUGHT HIM
TO THE ROOM ASKED HIM IF PETITIONER AND BEAN WERE THE ROBBERS AND THAT
HE INDICATED THEY WERE.  THE PROSECUTOR ASKED HIM, "AND YOU POSITIVELY
IDENTIFIED THEM AT THE POLICE STATION, IS THAT CORRECT?"  SHARD
ANSWERED, "YES."  CONSEQUENTLY, THE QUESTION IN THIS CASE IS WHETHER,
UNDER GILBERT V. CALIFORNIA, 388 U.S. 263 (1967), IT WAS CONSTITUTIONAL
ERROR TO ADMIT SHARD'S TESTIMONY THAT HE IDENTIFIED PETITIONER AT THE
PRETRIAL STATION-HOUSE SHOWUP WHEN THAT SHOWUP WAS CONDUCTED BY THE
POLICE WITHOUT ADVISING PETITIONER THAT HE MIGHT HAVE COUNSEL PRESENT. 
GILBERT HELD, IN THE CONTEXT OF A POST-INDICTMENT LINEUP, THAT "(ONLY A
PER SE EXCLUSIONARY RULE AS TO SUCH TESTIMONY CAN BE AN EFFECTIVE
SANCTION TO ASSURE THAT LAW ENFORCEMENT AUTHORITIES WILL RESPECT THE
ACCUSED'S CONSTITUTIONAL RIGHT TO THE PRESENCE OF HIS COUNSEL AT THE
CRITICAL LINEUP."  ID., AT 273.  I WOULD APPLY GILBERT AND THE
PRINCIPLES OF ITS COMPANION CASE, UNITED STATES V. WADE, 388 U.S. 218
(1967), AND REVERSE.  /1/ 

IN WADE, AFTER CONCLUDING THAT THE LINEUP CONDUCTED IN THAT CASE DID
NOT VIOLATE THE ACCUSED'S RIGHT AGAINST SELF-INCRIMINATION, ID., AT 221
223, /2/  THE COURT ADDRESSED THE ARGUMENT "THAT THE ASSISTANCE OF
COUNSEL AT THE LINEUP WAS INDISPENSABLE TO PROTECT WADE'S MOST BASIC
RIGHT AS A CRIMINAL DEFENDANT-- HIS RIGHT TO A FAIR TRIAL AT WHICH THE
WITNESSES AGAINST HIM MIGHT BE MEANINGFULLY CROSS-EXAMINED," ID., AT
223-224.  THE COURT BEGAN BY EMPHASIZING THAT THE SIXTH AMENDMENT
GUARANTEE "ENCOMPASSES COUNSEL'S ASSISTANCE WHENEVER NECESSARY TO
ASSURE A MEANINGFUL 'DEFENCE.'"  ID., AT 225.  AFTER REVIEWING POWELL
V. ALABAMA, 287 U.S. 45 (1932); HAMILTON V. ALABAMA, 368 U.S. 52
(1961); AND MASSIAH V. UNITED STATES, 377 U.S. 201 (1964), THE COURT,
388 U.S.,AT 225, FOCUSED UPON TWO CASES THAT INVOLVED THE RIGHT AGAINST
SELF-INCRIMINATION: 

     "IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, WE DREW UPON THE

  RATIONALE OF HAMILTON AND MASSIAH IN HOLDING THAT THE RIGHT TO

  COUNSEL WAS GUARANTEED AT THE POINT WHERE THE ACCUSED, PRIOR TO

  ARRAIGNMENT, WAS SUBJECTED TO SECRET INTERROGATION DESPITE

  REPEATED REQUESTS TO SEE HIS LAWYER.  WE AGAIN NOTED THE

  NECESSITY OF COUNSEL'S PRESENCE IF THE ACCUSED WAS TO HAVE A FAIR

  OPPORTUNITY TO PRESENT A DEFENSE AT THE TRIAL ITSELF . . . "

  UNITED STATES V. WADE, 388 U.S.,AT 225-226.  /3/ 

     "(IN MIRANDA V. ARIZONA, 384 U.S. 436, THE RULES ESTABLISHED

  FOR CUSTODIAL INTERROGATION INCLUDED THE RIGHT TO THE PRESENCE OF

  COUNSEL.  THE RESULT WAS RESTED ON OUR FINDING THAT THIS AND THE

  OTHER RULES WERE NECESSARY TO SAFEGUARD THE PRIVILEGE AGAINST

  SELF-INCRIMINATION FROM BEING JEOPARDIZED BY SUCH

  INTERROGATION."  ID., AT 226. 

THE COURT THEN POINTED OUT THAT "NOTHING DECIDED OR SAID IN THE
OPINIONS IN (ESCOBEDO AND MIRAND) LINKS THE RIGHT TO COUNSEL ONLY TO
PROTECTION OF FIFTH AMENDMENT RIGHTS."  IBID.  TO THE CONTRARY, THE
COURT SAID, THOSE DECISIONS IMPLY REFLECTED THE CONSTITUTIONAL 

"PRINCIPLE THAT IN ADDITION TO COUNSEL'S PRESENCE AT TRIAL, THE
ACCUSED IS GUARANTEED THAT HE NEW NOT STAND ALONG AGAINST THE STATE AT
ANY STAGE OF THE PROSECUTION, FORMAL OR INFORMAL, IN COURT OR OUT,
WHERE COUNSEL'S ABSENCE MIGHT DEROGATE FROM THE ACCUSED'S RIGHT TO A
FAIR TRIAL.  THE SECURITY OF THAT RIGHT IS AS MUCH THE AIM OF THE RIGHT
TO COUNSEL AS IT IS OF THE OTHER GUARANTEES OF THE SIXTH AMENDMENT . .
. " ID., AT 226-227.  THIS ANALYSIS LED TO THE COURT'S FORMULATION OF
THE CONTROLLING PRINCIPLE FOR PRETRIAL CONFRONTATIONS: 

     "IN SUM, THE PRINCIPLE OF POWELL V. ALABAMA AND SUCCEEDING

  CASES REQUIRES THAT WE SCRUTINIZE ANY PRETRIAL CONFRONTATION OF

  THE ACCUSED TO DETERMINE WHETHER THE PRESENCE OF HIS COUNSEL IS

  NECESSARY TO PRESERVE THE DEFENDANT'S BASIC RIGHT TO A FAIR TRIAL

AS AFFECTED BY HIS RIGHT MEANINGFULLY TO CROSS-EXAMINE THE

  WITNESSES AGAINST HIM AND TO HAVE EFFECTIVE ASSISTANCE OF COUNSEL

  AT THE TRIAL ITSELF.  IT CALLS UPON US TO ANALYZE WHETHER

  POTENTIAL SUBSTANTIAL PREJUDICE TO DEFENDANT'S RIGHTS INHERES IN

  IN THE PARTICULAR CONFRONTATION AND THE ABILITY OF COUNSEL TO

  HELP AVOID THAT PREJUDICE."  ID., AT 227. 

IT WAS THAT CONSTITUTIONAL PRINCIPLE THAT THE COURT APPLIED IN WADE
TO PRETRIAL CONFRONTATIONS FOR IDENTIFICATION PURPOSES.  THE COURT
FIRST MET THE GOVERNMENT'S CONTENTION THAT A CONFRONTATION FOR
IDENTIFICATION IS "A MERE PREPARATORY STEP IN THE GATHERING OF THE
PROSECUTION'S EVIDENCE," MUCH LIKE THE SCIENTIFIC EXAMINATION OF
FINGERPRINTS AND BLOOD SAMPLES.  THE COURT RESPONDED THAT IN THE LATTER
INSTANCES "THE ACCUSED HAS THE OPPORTUNITY FOR A MEANINGFUL
CONFRONTATION OF THE GOVERNMENT'S CASE AT TRIAL THROUGH THE ORDINARY
PROCESSES OF CROSS-EXAMINATION OF THE GOVERNMENT'S EXPERT WITNESSES AND
THE PRESENTATION OF THE EVIDENCE OF HIS OWN EXPERTS."  THE ACCUSED THUS
HAS NO RIGHT TO HAVE COUNSEL PRESENT AT SUCH EXAMINATIONS:  'THEY ARE
NOT CRITICAL STAGES SINCE THERE IS MINIMAL RISK THAT HIS COUNSEL'S
ABSENCE AT SUCH STAGES MIGHT DEROGATE FROM HIS RIGHT TO A FAIR TRIAL." 
ID., AT 227-228. 

IN CONTRAST, THE COURT SAID, "THE CONFRONTATION COMPELLED BY THE
STATE BETWEEN THE ACCUSED AND THE VICTIM OR WITNESSES TO A CRIME TO
ELICIT IDENTIFICATION EVIDENCE IS PECULIARLY RIDDLED WITH INNUMERABLE
DANGERS AND VARIABLE FACTORS WHICH MIGHT SERIOUSLY, EVEN CRUCIALLY,
DEROGATE FROM A FAIR TRIAL."  ID., AT 228.  MOST IMPORTANTLY, "THE
ACCUSED'S INABILITY EFFECTIVELY TO RECONSTRUCT AT TRIAL ANY UNFAIRNESS
THAT OCCURRED AT THE LINEUP MAY DEPRIVE HIM OF HIS ONLY OPPORTUNITY
MEANINGFULLY TO ATTACK THE CREDIBILITY OF THE WITNESS' COURTROOM
IDENTIFICATION."  ID., AT 231-232.  THE COURT'S ANALYSIS OF PRETRIAL
CONFRONTATIONS FOR IDENTIFICATION PURPOSES PRODUCED THE FOLLOWING
CONCLUSION: 

     "INSOFAR AS THE ACCUSED'S CONVICTION MAY REST ON A COURTROOM

  IDENTIFICATION IN FACT THE FRUIT OF A SUSPECT PRETRIAL

  IDENTIFICATION WHICH THE ACCUSED IS HELPLESS TO SUBJECT TO

  EFFECTIVE SCRUTINY AT TRIAL, THE ACCUSED IS DEPRIVED OF THAT

  RIGHT OF CROSS-EXAMINATION WHICH IS AN ESSENTIAL SAFEGUARD TO HIS

  RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.  POINTER V. TEXAS,

  380 U.S. 400.  AND EVEN THOUGH CROSS-EXAMINATION IS A PRECIOUS

  SAFEGUARD TO A FAIR TRIAL, IT CANNOT BE VIEWED AS AN ABSOLUTE

  ASSURANCE OF ACCURACY AND RELIABILITY.  THUS IN THE PRESENT

  CONTEXT, WHERE SO MANY VARIABLES AND PITFALLS EXIST, THE FIRST

  LINE OF DEFENSE MUST BE THE PREVENTION OF UNFAIRNESS AND THE

  LESSENING OF THE HAZARDS OF EYEWITNESS IDENTIFICATION AT THE

  LINEUP ITSELF.  THE TRIAL WHICH MIGHT DETERMINE THE ACCUSED'S

  FATE MAY WELL NOT BE THAT IN THE COURTROOM BUT THAT AT THE

  PRETRIAL CONFRONTATION, WITH THE STATE ALIGNED AGAINST THE

  ACCUSED, THE WITNESS THE SOLE JURY, AND THE ACCUSED UNPROTECTED

  AGAINST THE OVERREACHING, INTENTIONAL OR UNINTENTIONAL, AND WITH

  LITTLE OR NO EFFECTIVE APPEAL FROM THE JUDGMENT THERE RENDERED BY

  THE WITNESS-- 'THAT'S THE MAN.'"  ID., AT 235-236. 

THE COURT THEN APPLIED THAT CONCLUSION TO THE SPECIFIC FACTS OF THE
CASE.  "SINCE IT APPEARS THAT THERE IS GRAVE POTENTIAL FOR PREJUDICE,
INTENTIONAL OR NOT, IN THE PRETRIAL LINEUP, WHICH MAY NOT BE CAPABLE OF
RECONSTRUCTION AT TRIAL, AND SINCE PRESENCE OF COUNSEL ITSELF CAN OFTEN
AVERT PREJUDICE AND ASSURE A MEANINGFUL CONFRONTATION AT TRIAL, THERE
CAN BE LITTLE DOUBT THAT FOR WADE THE POST-INDICTMENT LINEUP WAS A
CRITICAL STAGE OF THE PROSECUTION AT WHICH HE WAS 'AS MUCH ENTITLED TO
SUCH AID (OF COUNSEL) . . . AS AT THE TRIAL ITSELF.'"  ID., AT 236
237. 

WHILE IT SHOULD GO WITHOUT SAYING, IT APPEARS NECESSARY, IN VIEW OF
THE PLURALITY OPINION TODAY, TO RE-EMPHASIZE THAT WADE DID NOT REQUIRE
THE PRESENCE OF COUNSEL AT PRETRIAL CONFRONTATIONS FOR IDENTIFICATION
PURPOSES SIMPLY ON THE BASIS OF AN ABSTRACT CONSIDERATION OF THE WORDS
"CRIMINAL PROSECUTIONS" IN THE SIXTH AMENDMENT.  COUNSEL IS REQUIRED AT
THOSE CONFRONTATIONS BECAUSE "THE DANGERS INHERENT IN EYEWITNESS
IDENTIFICATION AND THE SUGGESTIBILITY INHERENT IN THE CONTEXT OF THE
PRETRIAL IDENTIFICATION," ID., AT 235, /4/  MEAN THAT PROTECTION MUST
BE AFFORDED TO THE "MOST BASIC RIGHT (OF) A CRIMINAL DEFENDANT-- HIS
RIGHT TO A FAIR TRIAL AT WHICH THE WITNESSES AGAINST HIM MIGHT BE
MEANINGFULLY CROSS-EXAMINED," ID., AT 224.  INDEED, THE COURT EXPRESSLY
STATED THAT "(LEGISLATIVE OR OTHER REGULATIONS, SUCH AS THOSE OF LOCAL
POLICE DEPARTMENTS, WHICH ELIMINATE THE RISKS OF ABUSE AND
UNINTENTIONAL SUGGESTION AT LINEUP PROCEEDINGS AND THE IMPEDIMENTS TO
MEANINGFUL CONFRONTATION AT TRIAL MAY ALSO REMOVE THE BASIS FOR
REGARDING THE STAGE AS 'CRITICAL.'"  ID., AT 239; SEE ID., AT 239 N.
30; GILBERT V. CALIFORNIA, 388 U.S.,AT 273.  HENCE, "THE INITIATION OF
ADVERSARY JUDICIAL CRIMINAL PROCEEDINGS," ANTE, AT 689, IS COMPLETELY
IRRELEVANT TO WHETHER COUNSEL IS NECESSARY AT A PRETRIAL CONFRONTATION
FOR IDENTIFICATION IN ORDER TO SAFEGUARD THE ACCUSED'S CONSTITUTIONAL
RIGHTS TO CONFRONTATION AND THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS
TRIAL. 

IN VIEW OF WADE, IT IS PLAIN, AND THE PLURALITY TODAY DOES NOT
ATTEMPT TO DISPUTE IT, THAT THERE INHERE IN A CONFRONTATION FOR
IDENTIFICATION CONDUCTED AFTER ARREST /5/  THE IDENTICAL HAZARDS TO A
FAIR TRIAL THAT INHERE IN SUCH A CONFRONTATION CONDUCTED "AFTER THE
ONSET OF FORMAL PROSECUTORIAL PROCEEDINGS."  ID., AT 690.  THE
PLURALITY APPARENTLY CONSIDERS AN ARREST, WHICH FOR PRESENT PURPOSES WE
MUST ASSUME TO BE BASED UPON PROBABLE CAUSE, TO BE NOTHING MORE THAN
PART OF "A ROUTINE POLICE INVESTIGATION," IBID., AND THUS NOT "THE
STARTING POINT OF OUR WHOLE SYSTEM OF ADVERSARY CRIMINAL JUSTICE," ID.,
AT 689.  /6/  AN ARREST ACCORDING TO THE PLURALITY, DOES NOT FACE THE
ACCUSED "WITH THE PROSECUTORIAL FORCES OF ORGANIZED SOCIETY," NOR
IMMERSE HIM "IN THE INTRICACIES OF SUBSTANTIVE AND PROCEDURAL CRIMINAL
LAW."  THOSE CONSEQUENCES ENSURE, SAYS THE PLURALITY, ONLY WITH "(THE
INITIATION OF JUDICIAL CRIMINAL PROCEEDINGS," "(FOR IT IS ONLY THEN
THAT THE GOVERNMENT HAS COMMITTED ITSELF TO PROSECUTE, AND ONLY THEN
THAT THE ADVERSE POSITIONS OF GOVERNMENT AND DEFENDANT HAVE
SOLIDIFIED."  IBID.  /7/  IF THESE PROPOSITIONS DO NOT AMOUNT TO "MERE
FORMALISM," IBID., IT IS DIFFICULT TO KNOW HOW TO CHARACTERIZE THEM. 
/8/  AN ARREST EVIDENCES THE BELIEF OF THE POLICE THAT THE PERPETRATOR
OF A CRIME HAS BEEN CAUGHT.  A POST-ARREST CONFRONTATION FOR
IDENTIFICATION IS NOT "A MERE PREPARATORY STEP IN THE GATHERING OF THE
PROSECUTION'S EVIDENCE."  WADE, SUPRA, AT 227.  A PRIMARY, AND
FREQUENTLY SOLE, PURPOSE OF THE CONFRONTATION FOR IDENTIFICATION AT
THAT STAGE IS TO ACCUMULATE PROOF TO BUTTRESS THE CONCLUSION OF THE
POLICE THAT THEY HAVE THE OFFENDER IN HAND.  THE PLURALITY OFFERS NO
REASON, AND I CAN THINK OF NONE, FOR CONCLUDING THAT A POST-ARREST
CONFRONTATION FOR IDENTIFICATION, UNLIKE A POST-CHARGE CONFRONTATION,
IS NOT AMONG THOSE "CRITICAL CONFRONTATIONS OF THE ACCUSED BY THE
PROSECUTION AT PRETRIAL PROCEEDINGS WHERE THE RESULTS MIGHT WELL
SETTLED THE ACCUSED'S FATE AND REDUCE THE TRIAL ITSELF TO A MERE
FORMALITY."  ID., AT 224.     THE HIGHLY SUGGESTIVE FORM OF
CONFRONTATION EMPLOYED IN THIS CASE UNDERSCORES THE POINT.  THIS SHOWUP
WAS PARTICULARLY FRAUGHT WITH THE PERIL OF MISTAKEN IDENTIFICATION.  IN
THE SETTING OF A POLICE STATION SQUAD ROOM WHERE ALL PRESENT EXCEPT
PETITIONER AND BEAN WERE POLICE OFFICERS, THE DANGER WAS QUITE REAL
THAT SHARD'S UNDERSTANDABLE RESENTMENT MIGHT LEAD HIM TOO READILY TO
AGREE WITH THE POLICE THAT THE PAIR UNDER ARREST, AND THE ONLY PERSONS
EXHIBITED TO HIM, WERE INDEED THE ROBBERS.  "IT IS HARD TO IMAGINE A
SITUATION MORE CLEARLY CONVEYING THE SUGGESTION TO THE WITNESS THAT THE
ONE PRESENTED IS BELIEVED GUILTY BY THE POLICE."  ID., AT 234.  THE
STATE HAD NO CASE WITHOUT SHARD'S IDENTIFICATION TESTIMONY, /9/  AND
SAFEGUARDS AGAINST THAT CONSEQUENCE WERE THEREFOR OF CRITICAL
IMPORTANCE.  SHARD'S TESTIMONY ITSELF DEMONSTRATES THE NECESSITY FOR
SUCH SAFEGUARDS.  ON DIRECT EXAMINATION, SHARD IDENTIFIED PETITION AND
BEAN NOT AS THE ALLEGED ROBBERS ON TRIAL IN THE COURTROOM, BUT AS THE
PAIR HE SAW AT THE POLICE STATION.  HIS TESTIMONY THUS LENDS STRONG
SUPPORT TO THE OBSERVATION, QUOTED BY THE COURT IN WADE, 388 U.S.,AT
229, THAT "(IT IS A MATTER OF COMMON EXPERIENCE THAT, ONCE A WITNESS
HAS PICKED OUT THE ACCUSED AT THE LINE-UP, HE IS NOT LIKELY TO GO BACK
ON HIS WORD LATER ON, SO THAT IN PRACTICE THE ISSUE OF IDENTITY MAY (IN
THE ABSENCE OF OTHER RELEVANT EVIDENCE) FOR ALL PRACTICAL PURPOSES BE
DETERMINED THERE AND THEN, BEFORE THE TRIAL."  WILLIAM & HAMMELMANN,
IDENTIFICATION PARADES, PART I, (1963) CRIM. L. REV. 479, 482. 

THE PLURALITY TODAY "DECLINES) TO DEPART FROM (THE) RATIONAL" OF
WADE AND GILBERT.  ANTE, AT 690.  THE PLURALITY DISCOVERS THAT
"RATIONALE" NOT BY CONSULTING THOSE DECISIONS THEMSELVES, WHICH WOULD
SEEM TO BE THE APPROPRIATE COURSE, BUT BY READING ONE SENTENCE IN
SIMMONS V. UNITED STATES, 390 U.S. 377, 382-383 (1068), WHERE NO RIGHT
TO-COUNSEL CLAIM WAS EITHER ASSERTED OR CONSIDERED.  THE "RATIONALE"
THE PLURALITY DISCOVERS IS, APPARENTLY, THAT A POST-INDICTMENT
CONFRONTATION FOR IDENTIFICATION IS PART OF THE PROSECUTION.  THE
PLURALITY MIGHT HAVE DISCOVERED A DIFFERENT "RATIONAL" BY READING ONE
SENTENCE IN FOSTER V. CALIFORNIA, 394 U.S. 440, 442 (1969), A CASE
DECIDED AFTER SIMMONS, WHERE THE COURT EXPLAINED THAT IN WADE AND
GILBERT "THIS COURT HELD THAT BECAUSE OF THE POSSIBILITY OF UNFAIRNESS
TO THE ACCUSED IN THE WAY A LINEUP IS CONDUCTED, A LINEUP IS A
'CRITICAL STAGE' IN THE PROSECUTION, AT WHICH THE ACCUSED MUST BE GIVEN
THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL."  IN FOSTER, MOREOVER,
ALTHOUGH THE COURT MENTIONED THAT THE LINEUPS TOOK PLACE AFTER THE
ACCUSED'S ARREST, IT DID NOT SAY WHETHER THEY WERE ALSO AFTER THE
INFORMATION WAS FILED AGAINST HIM.  /10/  INSTEAD, THE COURT SIMPLY
POINTED OUT THAT UNDER STOVALL V. DENNO, 388 U.S. 293 (1967), WADE AND
GILBERT WERE "APPLICABLE ONLY TO LINEUPS CONDUCTED AFTER THOSE CASES
WERE DECIDED."  394 U.S.,AT 442.  SIMILARLY, IN COLEMAN V. ALABAMA, 399
U.S. 1 (1970), ANOTHER CASE INVOLVING A PRE-WADE LINEUP, NO MEMBER OF
THE COURT SAW ANY SIGNIFICANCE IN WHETHER THE ACCUSED HAD BEEN FORMALLY
CHARGED WITH A CRIME BEFORE THE LINEUP WAS HELD.  /11/ 

THE PLURALITY MIGHT ALSO HAVE DISCOVERED A DIFFERENT "RATIONALE" FOR
WADE AND GILBERT HAD IT EXAMINED STOVALL V. DENNO, SUPRA, DECIDED THE
SAME DAY.  IN STOVALL, THE CONFRONTATION FOR IDENTIFICATION TOOK PLACE
ONE DAY AFTER THE ACCUSED'S ARREST.  ALTHOUGH THE ACCUSED WAS FIRST
BROUGHT TO AN ARRAIGNMENT, IT "WAS POSTPONED UNTIL (HE) COULD RETAIN
COUNSEL."  388 U.S.,AT 295.  HENCE, IN THE PLURALITY'S TERMS TODAY, THE
CONFRONTATION WAS HELD "BEFORE THE COMMENCEMENT OF ANY PROSECUTION." 
ANTE, AT 690.  /12/  YET IN THAT CIRCUMSTANCE THE COURT IN STOVALL
STATED THAT THE ACCUSED RAISED (THE SAME ALLEGED CONSTITUTIONAL ERRORS
IN THE ADMISSION OF ALLEGEDLY TAINTED IDENTIFICATION EVIDENCE THAT WERE
BEFORE US" IN WADE AND GILBERT.  THE COURT THEREFORE FOUND THAT THE
CASE "PROVIDED) A VEHICLE FOR DECIDING THE EXTENT TO WHICH THE RULES
ANNOUNCED IN WADE AND GILBERT-- REQUIRING THE EXCLUSION OF
IDENTIFICATION EVIDENCE WHICH IS TAINTED BY EXHIBITING THE ACCUSED TO
IDENTIFYING WITNESSES BEFORE TRIAL IN THE ABSENCE OF HIS COUNSEL-- ARE
TO BE APPLIED RETROACTIVELY."  38 U.S.,AT 294.  INDEED, THE COURT'S
EXPLICIT HOLDING WAS "THAT WADE AND GILBERT AFFECT ONLY THOSE CASES AND
ALL FUTURE CASES WHICH INVOLVE CONFRONTATIONS FOR IDENTIFICATION
PURPOSES CONDUCTED IN THE ABSENCE OF COUNSEL AFTER THIS DATE.  THE
RULINGS OF WADE AND GILBERT ARE THEREFORE INAPPLICABLE IN THE PRESENT
CASE."  ID., AT 296.  HENCE, THE ACCUSED IN STOVALL DID NOT RECEIVE THE
BENEFIT OF THE NEW EXCLUSIONARY RULES BECAUSE THEY WERE NOT APPLIED
RETROACTIVELY; HE WAS NOT DENIED THEIR BENEFIT BECAUSE HIS
CONFRONTATION TOOK PLACE BEFORE HE HAD "BEEN FORMALLY CHARGED WITH A
CRIMINAL OFFENSE."  ANTE, AT 691.  MOREOVER, IN THE COURSE OF ITS
RETROACTIVITY DISCUSSION, 388 U.S.,AT 296-301, THE COURT REPEATED THE
PHRASE "PRETRIAL CONFRONTATIONS FOR IDENTIFICATION"  OR ITS EQUIVALENT
NO LESS THAN 10 TIMES.  NOT ONCE DID THE COURT SO MUCH AS HINT THAT
WADE AND GILBERT APPLIED ONLY TO CONFRONTATIONS AFTER THE ACCUSED "HAD
BEEN INDICTED OR OTHERWISE FORMALLY CHARGED WITH (A) CRIMINAL
OFFENSE."  ANTE, AT 684.  IN FACT, AT ONE POINT THE COURT SUMMARIZED
WADE AS HOLDING "THAT THE CONFRONTATION (FOR IDENTIFICATION) IS A
'CRITICAL STAGE,' AND THAT COUNSEL IS REQUIRED AT ALL CONFRONTATIONS." 
388 U.S.,AT 298. 

WADE AND GILBERT, OF COURSE, HAPPENED TO INVOLVE POST-INDICTMENT
CONFRONTATIONS.  YET EVEN A CURSORY PERUSAL OF THE OPINIONS IN THOSE
CASES REVEALS THAT NOTHING AT ALL TURNED UPON THAT PARTICULAR
CIRCUMSTANCE.  /13/  IN SHORT, IT IS FAIR TO CONCLUDE THAT RATHER THAN
"DECLINING) TO DEPART FROM (THE) RATIONALE" OF WADE AND GILBERT, ANTE,
AT 690, THE PLURALITY TODAY, ALBEIT PURPORTING TO BE ENGAGED IN
"PRINCIPLED CONSTITUTIONAL ADJUDICATION," ID., AT 688, REFUSES EVEN TO
RECOGNIZE THAT "RATIONALE."  FOR MY PART, I DO NOT AGREE THAT WE
"EXTEND" WADE AND GILBERT, ID., AT 684, BY HOLDING THAT THE PRINCIPLES
OF THOSE CASES APPLY TO CONFRONTATIONS FOR IDENTIFICATION CONDUCTED
AFTER ARREST.  /14/  BECAUSE SHARD TESTIFIED AT TRIAL ABOUT HIS
IDENTIFICATION OF PETITIONER AT THE POLICE STATION SHOWUP, THE
EXCLUSIONARY RULE OF GILBERT, 388 U.S.,AT 272-274, REQUIRED REVERSAL. 

/1/  THERE IS NO ROOM HERE FOR THE APPLICATION OF THE HARMLESS-ERROR
DOCTRINE.  BECAUSE THE ADMISSION OF SHARD'S TESTIMONY ABOUT HIS SHOWUP
IDENTIFICATION THUS REQUIRES REVERSAL, THERE IS NO NEED FOR ME TO
CONSIDER WHETHER A REMAND WOULD OTHERWISE BE NECESSARY TO AFFORD THE
STATE AN OPPORTUNITY TO DEMONSTRATE THE SHARD'S IN-COURT IDENTIFICATION
OF PETITIONER, IF THAT IS WHAT IT WAS, SEE ANTE, AT 686 N. 3, HAD AN
INDEPENDENT SOURCE.  SEE UNITED STATES V. WADE, 388 U.S. 218, 239-242
(1967); GILBERT V. CALIFORNIA, 388 U.S. 263, 272 (1967). 

/2/  THE PLURALITY ASSERTS THAT IN VIEW OF THAT HOLDING IN WADE,
"THE DOCTRINE OF MIRANDA V. ARIZONA, 384 U.S. 436, HAS NOT
APPLICABILITY WHATEVER TO THE ISSUE BEFORE US."  ANTE, AT 688.  THAT
ASSERTION IS NECESSARY FOR THE PLURALITY BECAUSE MIRANDA REQUIRES THE
PRESENCE OF COUNSEL BEFORE "THE TIME THAT ADVERSARY JUDICIAL
PROCEEDINGS HAVE BEEN INITIATED AGAINST" THE ACCUSED.  IBID.  THE
ASSERTION IS NONETHELESS ERRONEOUS, FOR WADE SPECIFICALLY RELIED UPON
MIRANDA IN ESTABLISHING THE CONSTITUTIONAL PRINCIPLE THAT CONTROLS THE
APPLICABILITY OF THE SIXTH AMENDMENT GUARANTEE OF THE RIGHT TO COUNSEL
AT PRETRIAL CONFRONTATIONS.  SEE 388 U.S.,AT 226-227. 

/3/  THE PLURALITY ASSERTS THAT "ESCOBEDO IS NOT APPOSITE HERE." 
ANTE, AT 689.  IT WAS, OF COURSE, "APPOSITE" IN WADE.  HENCE, TO SAY
THAT JOHNSON V. NEW JERSEY, 384 U.S. 719, 733-734 (1966), A CASE
DECIDED BEFORE WADE, "LIMITED THE HOLDING OF ESCOBEDO TO ITS OWN
FACTS," ANTE, AT 689, EVEN IF TRUE, IS TO SAY NOTHING AT ALL THAT IS
RELEVANT TO THE PRESENT CASE.  THE PLURALITY ALSO UTILIZED JOHNSON FOR
THE PROPOSITION "THAT THE 'PRIME PURPOSE' OF ESCOBEDO WAS NOT TO
VINDICATE THE CONSTITUTIONAL RIGHT TO COUNSEL AS SUCH, BUT, LIKE
MIRANDA, 'TO GUARANTEE FULL EFFECTUATION OF THE PRIVILEGE AGAINST SELF
INCRIMINATION . . . '"  IBID.  IN VIEW OF WADE'S SPECIFIC RELIANCE UPON
ESCOBEDO AND MIRANDA, THAT, OBVIOUSLY, IS NO DISTINCTION EITHER. 
MOREOVER, IT IMPLIES THAT THE PURPOSE OF WADE WAS "TO VINDICATE THE
CONSTITUTIONAL RIGHT TO COUNSEL AS SUCH."  THAT WAS NOT THE PURPOSE OF
WADE, AS MY EXTENDED SUMMARY OF THE OPINION DEMONSTRATES. 

/4/  THE PLURALITY REFERS TO "OCCASIONS DURING THE COURSE OF A
CRIMINAL INVESTIGATION WHEN THE POLICE DO ABUSE IDENTIFICATION
PROCEDURES" AND ASSERTS THAT "(SUCH ABUSES ARE NOT BEYOND THE REACH OF
THE CONSTITUTION."  ANTE, AT 690.  THE CONSTITUTIONAL PRINCIPLES
ESTABLISHED IN WADE, HOWEVER, ARE NOT ADDRESSED SOLELY TO POLICE
"ABUSES," AS WADE EXPLICITLY POINTED OUT: 

"THE FEW CASES THAT HAVE SURFACED THEREFORE REVEAL THE EXISTENCE OF
A PROCESS ATTENDED WITH HAZARDS OF SERIOUS UNFAIRNESS TO THE CRIMINAL
ACCUSED AND STRONGLY SUGGEST TO THE PLIGHT OF THE MORE NUMEROUS
DEFENDANTS WHO ARE UNABLE TO FERRET OUT SUGGESTIVE INFLUENCES IN THE
SECRECY OF THE CONFRONTATION.  WE DO NOT ASSUME THAT THESE RISKS ARE
THE RESULT OF POLICE PROCEDURES INTENTIONALLY DESIGNED TO PREJUDICE AN
ACCUSED.  RATHER WE ASSUME THEY DERIVE FROM THE DANGERS INHERENT IN
EYEWITNESS IDENTIFICATION AND THE SUGGESTIBILITY INHERENT IN THE
CONTEXT OF THE PRETRIAL IDENTIFICATION."  388 U.S.,AT 234-235. 

/5/THIS CASE DOES NOT REQUIRE ME TO CONSIDER CONFRONTATIONS THAT
TAKE PLACE BEFORE CUSTODY, SEE, E.G., BRATTEN V. DELAWARE, 307 F.SUPP. 
643 (DEL. 1969); PEOPLE V. CESARZ, 44 ILL.2D 180, 255 N.E.2D 1 (1969);
STATE V. MOORE, 111 N.J.SUPER, 528, 269 A.2D 534 (1970), NOR ACCIDENTAL
CONFRONTATIONS NOT ARRANGED BY THE POLICE, SEE, E.G., UNITED STATES V.
POLLACK, 427 F.2D 1168 (CA5 1970); STATE V. BIBBS, 461 S.W.2D 755 (MO.
1970), NOR ON-THE-SCENE ENCOUNTERS SHORTLY AFTER THE CRIME, SEE, E.G.,
RUSSELL V. UNITED STATES, 133 U.S.APP.D.C. 77, 408 F.2D 1280 (1969);
UNITED STATES V. DAVIS, 399 F.2D 948 (CA2 1968). 

/6/  CF. MIRANDA V. ARIZONA, 384 U.S. 436, 477 (1966): 

"THE PRINCIPLES ANNOUNCED TODAY DEAL WITH THE PROTECTION WHICH MUST
BE GIVEN TO THE PRIVILEGE AGAINST SELF-DISCRIMINATION WHEN THE
INDIVIDUAL IS FIRST SUBJECTED TO POLICE INTERROGATION WHILE IN CUSTODY
AT THE STATION OR OTHERWISE DEPRIVED OF HIS FREEDOM OF ACTION IN ANY
SIGNIFICANT WAY.  IT IS AT THIS POINT THAT OUR ADVERSARY SYSTEM OF
CRIMINAL PROCEEDINGS COMMENCES, DISTINGUISHING ITSELF AT THE OUTSET
FROM THE INQUISITORIAL SYSTEM RECOGNIZED IN SOME COUNTRIES." 

/7/  THE PLURALITY CONCLUDES THAT "(IT IS THIS POINT, THEREFORE,
THAT MARKS THE COMMENCEMENT OF THE 'CRIMINAL PROSECUTIONS' TO WHICH
ALONE THE EXPLICIT GUARANTEES OF SIXTH AMENDMENT ARE APPLICABLE." 
ANTE, AT 690.  THIS COURT HAS TAKEN THE CONTRARY POSITION WITH RESPECT
TO THE SPEEDY-TRIAL GUARANTEE OF THE SIXTH AMENDMENT: "INVOCATION OF
THE SPEEDY TRIAL PROVISION THUS NEED NOT AWAIT INDICTMENT, INFORMATION,
OR OTHER FORMAL CHARGE.  BUT WE DECLINE TO EXTEND THE REACH OF THE
AMENDMENT TO THE PERIOD PRIOR TO ARREST."  "IN THE CASE BEFORE US,
NEITHER APPELLEE WAS ARRESTED, CHARGED, OR OTHERWISE SUBJECTED TO
FORMAL RESTRAINT PRIOR TO INDICTMENT.  IT WAS THIS EVENT, THEREFORE,
WHICH TRANSFORMED THE APPELLEES INTO 'ACCUSED' DEFENDANTS WHO ARE
SUBJECT TO THE SPEEDY TRIAL PROTECTIONS OF THE SIXTH AMENDMENT." 
UNITED STATES V. MARION, 404 U.S. 307, 321, 325 (1971). 

/8/  AS THE CALIFORNIA SUPREME COURT POINTED OUT, WITH AN EYE TOWARD
THE REAL WORD, "THE ESTABLISHMENT OF THE DATE OF FORMAL ACCUSATION AS
THE TIME WHEREIN THE RIGHT TO COUNSEL AT LINEUP ATTACHES COULD ONLY
LEAD TO A SITUATION WHEREIN SUBSTANTIALLY ALL LINEUPS WOULD BE
CONDUCTED PRIOR TO INDICTMENT OR INFORMATION."  PEOPLE V. FOWLER, 1
CAL.3D 335, 334, 461 P.2D 643, 650 (1969). 

/9/  BEAN TOOK THE STAND AND TESTIFIED THAT HE AND PETITIONER FOUND
SHARD'S TRAVLER'S CHECKS AND SOCIAL SECURITY CARD TWO HOURS BEFORE
THEIR ARREST STREWN UPON THE GROUND IN AN ALLEY. 

/10/  IN FACT, THE LINEUPS IN FOSTER TOOK PLACE BEFORE THE
INFORMATION WAS FILED.  THE CRIME OCCURED ON JANUARY 25, 1966.  AFTER
THE ACCUSED WAS ARRESTED, HE WAS EXHIBITED TO THE WITNESS IN TWO
LINEUPS, BOTH CONDUCTED WITHIN TWO WEEKS OF JANUARY 25.  THE
INFORMATION WAS NOT FILED UNTIL MARCH 17.  FOSTER V. CALIFORNIA, NO.
47, O.T. 1968, BRIEF FOR RESPONDENT 3-8. 

/11/  IN FACT, THE LINEUP IN COLEMAN TOOK PLACE BEFORE THE ACCUSED
WERE FORMALLY CHARGED.  THE CRIME OCCURRED ON JULY 24, 1966.  THE
ACCUSED WERE ARRESTED ON SEPTEMBER 29, AND THE LINEUP WAS HELD ON
OCTOBER 1.  THE PRELIMINARY HEARING WAS NOT UNTIL OCTOBER 14, AND THE
INDICTMENTS WERE NOT RETURNED UNTIL NOVEMBER 11.  COLEMAN V. ALABAMA,
NO. 72 O.T. 1969, BRIEF FOR PETITIONERS 5-7; APP. 84; SEE 399 U.S.,AT
26 (STEWART, J., JOINED BY BURGER C.J., DISSENTING). 

ON THOSE FACTS, THE PLURALITY OPINION ADVERTED TO THE TIMING OF THE
LINEUP ONLY TO THE EXTENT OF POINTING OUT THAT IT WAS HELD "ABOUT TWO
MONTHS AFTER THE ASSAULT AND SEVEN MONTHS BEFORE PETITIONERS' TRIAL." 
ID., AT 3 (BRENNAN, J., JOINED BY DOUGLAS, WHITE, AND MARSHALL, JJ.). 
THE PLURALITY OPINION THEN SIMPLY NOTED THAT "(PETITIONERS CONCEDE THAT
SINCE THE LINEUP OCCURRED BEFORE (WADE AND GILBERT) WERE DECIDED . . .
, THEY CANNOT INVOKE THE HOLDING OF THOSE CASES REQUIRING THE EXCLUSION
OF IN-COURT IDENTIFICATION EVIDENCE WICH IS TAINTED BY EXHIBITING THE
ACCUSED TO IDENTIFYING WITNESSES BEFORE TRIAL IN THE ABSENCE OF
COUNSEL."  ID., AT 3-4. 

MR. JUSTICE BLACK IN HIS CONCURRING OPINION TOOK NO NOTICE AT ALL OF
WHEN THE LINEUP WAS CONDUCTED.  INSTEAD, REITERATING HIS VIEW THAT
"WADE "SHOULD BE HELD FULLY RETROACTIVE," HE INSISTED "THAT PETITIONERS
IN THIS PRE-WADE CASE WERE ENTITLED TO COURT-APPOINTED COUNSEL AT THE
TIME OF THE LINEUP IN WHICH THEY PARTICIPATED AND THAT ALABAMA'S
FAILURE TO PROVIDE SUCH COUNSEL VIOLATED PETITIONERS' RIGHTS UNDER THE
SIXTH AND FOURTEENTH AMENDMENTS."  ID., AT 13.  NOR DID MR. JUSTICE
HARLAN REFER TO THE TIMING OF THE LINEUP IN EXPRESSING HIS "DISSENT
FROM THE REFUSAL TO ACCORD PETITIONERS THE BENEFIT OF THE WADE HOLDING,
NEITHER PETITIONER HAVING BEEN AFFORDED SUMMARY OF WADE, LIKE THAT OF
THE PREVAILING OPINION, DID NOT LIMIT ITS "RATIONALE" TO POST-CHARGE
CONFRONTATIONS:  "THE WADE RULE REQUIRES THE EXCLUSION OF ANY IN-COURT
IDENTIFICATION PRECEDED BY A PRE-TRIAL LINEUP WHERE THE ACCUSED WAS NOT
REPRESENTED BY COUNSEL, UNLESS THE IN-COURT IDENTIFICATION IS FOUND TO
BE DERIVED FROM A SOURCE 'INDEPENDENT' OF THE TAINTED PRETRIAL
VIEWING."  ID., AT 21.     /12/  THE CHAIN OF EVENTS IN STOVALL WAS AS
FOLLOWS:  THE CRIME OCCURRED ON THE NIGHT OF AUGUST 23, 1961.  THE
ACCUSED WAS ARRESTED ON THE AFTERNOON OF AUGUST 24 AND APPEARED FOR
ARRAIGNMENT ON THE MORNING OF AUGUST 25.  THE ARRAIGNMENT WAS POSTPONED
UNTIL AUGUST 31 SO THAT HE COULD RETAIN COUNSEL.  THE CONFRONTATION
WITH THE WITNESS TOOK PLACE ABOUT NOON ON AUGUST 25.  AT THE
ARRAIGNMENT ON AUGUST 31, THE COMMITTING MAGISTRATE APPOINTED COUNSEL
FOR THE ACCUSED AND SET THE FELONY EXAMINATION FOR SEPTEMBER 1.  THAT
EXAMINATION WAS NEVER HELD, FOR ON AUGUST 31 THE INDICTMENT WAS
RETURNED.  STOVALL V. DENNO, NO. 254, O.T. 1966, BRIEF FOR RESPONDENT
34. 

/13/  THE WADE DISSENTERS FOUND NO SUCH LIMITATION:  "THE RULE
APPLIES TO ANY LINEUP, TO ANY OTHER TECHNIQUES EMPLOYED TO PRODUCE AN
IDENTIFICATION AND A FORTIORI TO A FACE-TO-FACE ENCOUNTER BETWEEN THE
WITNESS AND THE SUSPECT ALONE, REGARDLESS OF WHEN THE IDENTIFICATION
OCCURS, IN TIME OR PLACE, AND WHETHER BEFORE OR AFTER INDICTMENT OR
INFORMATION."  UNITED STATES V. WADE, 388 U.S.,AT 251 (WHITE J., JOINED
BY HARLAN AND STEWART, JJ., DISSENTING IN PART AND CONCURRING IN
PART). 

/14/  THE PLURALITY RATHER SURPRISINGLY ASSERTS THAT "(THE ISSUE OF
THE APPLICABILITY OF WADE AND GILBERT TO PRE-INDICTMENT CONFRONTATION
HAS SEVERELY DIVIDED THE COURTS."  ANTE, AT 687 N. 5.  AS THE
PLURALITY'S CITATIONS REVEAL, THERE ARE DECISIONS FROM FIVE STATES,
INCLUDING ILLINOIS, THAT HAVE REFUSED TO APPLY WADE AND GILBERT TO PRE
INDICTMENT CONFRONTATIONS FOR INDENTIFICATION.  RANGED AGAINST THOSE
FIVE, HOWEVER, ARE DECISIONS FROM AT LEAST 13 STATES.  SEE PEOPLE V.
FOWLER, 1 CAL.2D 335, 461 P.2D 643 (1969); STATE V. SINGLETON, 253 LA.
18, 215 SO.2D 838 (1968); COMMONWEALTH V. GUILLORY, 356 MASS. 591, 254
N.E.2D 427 (1970); PALMER V. STATE, 5 MD.APP.  691, 249 A.2D 482
(1969); PEOPLE V. HUTTON, 21 MICH.APP.  312, 175 N.W.2D 482 (1969);
PEOPLE V. HUTTON, 21 MICH.APP.  312, 175 N.W.2D 860 (1970); THOMPSON V.
STATE, 85 NEV. 134, 451 P.2D 704 (1969); STATE V. WRIGHT, 274 N.C. 84,
161 S.E.2D 581 (1968); STATE V. ISAACS, 24 OHIO APP.2D 115, 265 N.E.2D
327 (1970); COMMONWEALTH V. WHITING, 439 PA. 205, 266 A.2D 738 (1970);
IN RE HOLLEY, 107 R.I. 615, 268 A.2D 723 (1970); MARTINEZ V. STATE, 437
S.W.2D 842 (TEX. CT. CRIM. APP. 1969); STATE V. HICKS, 76 WASH.2D 80,
455 P.2D 943 (1969); HAYES V. STATE, 46 WIS.2D 93, 175 N.W.2D 625
(1970). 

IN ADDITION, EVERY UNITED STATES COURT OF APPEALS THAT HAS
CONFRONTED THE QUESTION HAS APPLIED WADE AND GILBERT TO PRE-INDICTMENT
CONFRONTATIONS.  SEE UNITED STATES V. GREENE, 139 U.S.APP.D.C. 9, 429
F.2D 193 (1970); COOPER V. PICARD, 428 F.2D 1351 (CA1 1970); UNITED
STATES V. AYERS, 426 F.2D 524 (CA2 1970); GOVERNMENT OF VIRGIN ISLANDS
V. CALLWOOD, 440 F.2D 1206 (CA3 1971); RIVERS V. UNITED STATES, 400
F.2D 935 (CA5 1968); UNITED STATES V. BROADHEAD, 413 F.2D 1351 (CA7
1969); UNITED STATES V. PHILLIPS, 427 F.2D 1035 (CA9 1970); WILSON V.
GAFFNEY, 454 F.2D 142 (CA10 1972).  AS CHIEF JUDGE LEWIS, SPEAKING FOR
THE COURT OF APPEALS FOR THE TENTH CIRCUIT, PUT IT IN THE LAST-CITED
CASE: 

"IN BOTH WADE AND GILBERT THE LINEUPS WERE CONDUCTED AFTER
INDICTMENTS HAD BEEN RETURNED; IN THE CASE AT BAR, THE LINEUP OCCURRED
BEFORE PETITIONER HAD BEEN FORMALLY CHARGED.  BUT SURELY THE ASSISTANCE
OF COUNSEL, NOW ESTABLISHED AS AN ABSOLUTE POST-INDICTMENT RIGHT DOES
NOT ARISE OR ATTACH BECAUSE OF THE RETURN OF AN INDICTMENT.  THE
CONFRONTATION OF A LINEUP . . . CANNOT HAVE A CONSTITUTIONAL
DISTINCTION BASED UPON THE LODGING OF A FORMAL CHARGE.  EVERY REASON
SET FORTH BY THE SUPREME COURT IN WADE . . . FOR THE ASSISTANCE OF
COUNSEL POST-INDICTMENT HAS EQUAL OR MORE IMPACT WHEN PROJECTED AGAINST
A PRE-INDICTMENT ATMOSPHERE.  WE HOLD THAT PETITIONER HAD A RIGHT TO
COUNSEL AT THE LINEUP HERE CONSIDERED."  ID., AT 144. 

MR. JUSTICE WHITE, DISSENTING. 

UNITED STATES V. WADE, 388 U.S. 218 (1967), AND GILBERT V.
CALIFORNIA, 388 U.S. 263 (1967), GOVERN THIS CASE AND COMPEL REVERSAL
OF THE JUDGEMENT BELOW. 

JEROLD S. SOLOVY ARGUED THE CAUSE FOR PETITIONER ON THE REARGUMENT
AND MICHAEL P. SENG ARGUED THE CAUSE ON THE ORIGINAL ARGUMENT. 
MESSRS.  SOLOVY AND SENG WERE ON THE BRIEFS FOR PETITIONERS. 

JAMES B. ZAGEL, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, REARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, JOEL M. FLAUM, FIRST ASSISTANT ATTORNEY GENERAL, AND
E. JAMES GILDEA, ASSISTANT ATTORNEY GENERAL. 

RONALD M. GEORGE, DEPUTY ATTORNEY GENERAL, ARGUED THE CAUSE ON THE
REARGUMENT FOR THE STATE OF CALIFORNIA AS AMICUS CURIAE URGING
AFFIRMANCE.  WITH HIM ON THE BRIEF WERE EVELLE J. YOUNGER, ATTORNEY
GENERAL, AND WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL. 
..END :













BRUNETTE MACHINE WKS. V. KOCKUM INDUSTRIES, 406 U.S. 706 


       BRUNETTE MACHINE WORKS, LTD. V. KOCKUM INDUSTRIES, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 70-314.  ARGUED MARCH 23, 1972-- DECIDED JUNE 7, 1972 


TITLE 28 U.S.C. 1391(D), PROVIDING THAT "(AN ALIEN MAY BE SUED IN ANY
DISTRICT," EMBODIES THE LONG-ESTABLISHED RULE THAT A SUIT AGAINST AN
ALIEN IS WHOLLY OUTSIDE THE OPERATION OF ALL FEDERAL VENUE LAWS
(WHETHER GENERAL OR SPECIAL) AND GOVERNS THE VENUE OF AN ACTION FOR
PATENT INFRINGEMENT AGAINST AN ALIEN.  THE DISTRICT COURT THEREFORE
ERRED IN HOLDING THAT SEC. 1400(B) (WHICH PROVIDES THAT A PATENT
INFRINGEMENT SUIT MAY BE BROUGHT IN THE DISTRICT OF THE DEFENDANT'S
RESIDENCE, OR WHERE HE WAS COMMITTED INFRINGEMENT ACTS AND HAS A
REGULAR PLACE OF BUSINESS) IS THE EXCLUSIVE PROVISION GOVERNING VENUE
IN PATENT INFRINGEMENT LITIGATION.  PP. 708-714. 

442 F.2D 420, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

"(AN ALIEN MAY BE SUED IN ANY DISTRICT."  SECTION 1400(B) PROVIDES THAT
"(ANY CIVIL ACTION FOR PATENT INFRINGEMENT MAY BE BROUGHT IN THE
JUDICIAL DISTRICT WHERE THE DEFENDANT RESIDES, OR WHERE THE DEFENDANT
HAS COMMITTED ACTS OF INFRINGEMENT AND HAS A REGULAR AND ESTABLISHED
PLACE OF BUSINESS."  WE ARE ASKED TO DECIDE WHICH PROVISION OF TITLE 28
GOVERNS THE VENUE OF AN ACTION FOR PATENT INFRINGEMENT AGAINST AN ALIEN
DEFENDANT. 

RESPONDENT KOCKUM INDUSTRIES, INC., AN ALABAMA CORPORATION DOING
BUSINESS IN OREGON, HOLDS A UNITED STATES PATENT ON A MACHINE THAT
REMOVES BARK FROM LOGS.  KOCKUM CLAIMS THAT PETITIONER BRUNETTE MACHINE
WORKS, LTD., A CANADIAN CORPORATION, HAS INFRINGED THAT PATENT BY
ASSISTING TWO AMERICAN MANUFACTURERS TO MAKE AND SELL SIMILAR
MACHINES.  /1/  KOCKUM OBTAINED SERVICE OF PROCESS ON BRUNETTE IN
OREGON, UNDER THAT STATE'S LONG-ARM STATUTE, ORE.  REV.  STATE SEC.
14.035, AND FILED THIS ACTION FOR PATENT INFRINGEMENT IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF OREGON.  THE DISTRICT COURT
DISMISSED THE COMPLAINT ON THE GROUND OF IMPROPER VENUE, ACCEPTING
BRUNETTE'S CONTENTION THAT SEC. 1400(B) IS THE EXCLUSIVE PROVISION
GOVERNING VENUE IN PATENT INFRINGEMENT LITIGATION, AND THAT ITS
REQUIREMENTS WERE NOT SATISFIED HERE.  /2/  THE COURT OF APPEALS
REVERSED, HOLDING THAT SEC. 1319(D) APPLIES TO PATENT INFRINGEMENT
SUITS AS TO ALL OTHERS, AND HENCE THAT BRUNETTE IS SUBJECT TO SUIT AS
AN ALIEN IN ANY DISTRICT.  442 F.2D 420 (1971).  WE GRANTED CERTIORARI
TO RESOLVE A CONFLICT IN THE CIRCUITS ON THIS QUESTION.  /3/  404 U.S.
982 (1971).  WE AFFIRM. 

        I 

DISTRICT, APPEARED FOR THE FIRST TIME IN THE JUDICIAL CODE OF 1948, BUT
ITS ROOTS GO BACK TO THE BEGINNING OF THE REPUBLIC.  THE FIRST
RESTRICTIONS ON VENUE IN THE FEDERAL COURTS WERE SET FORTH IN THE
JUDICIARY ACT OF 1789: 

"(NO CIVIL SUIT SHALL BE BROUGHT BEFORE EITHER (DISTRICT OR CIRCUIT)
COURTS AGAINST AN INHABITANT OF THE UNITED STATES, BY ANY ORIGINAL
PROCESS IN ANY OTHER DISTRICT THAN THAT WHEREOF HE IS AN INHABITANT, OR
IN WHICH HE SHALL BE FOUND AT THE TIME OF SERVING THE WRIT . . . " 1
STAT. 79.  /4/  BECAUSE THIS LIMITATION ON THE PLACE WHERE FEDERAL
CASES MIGHT BE TRIED APPLIED IN TERMS ONLY TO SUITS AGAINST "AN
INHABITANT OF THE UNITED STATES," SUITS AGAINST ALIENS WERE LEFT
UNRESTRICTED, AND COULD BE TRIED IN ANY DISTRICT, SUBJECT ONLY TO THE
REQUIREMENTS OF SERVICE OF PROCESS. 

THE ORIGINAL VENUE PROVISIONS REMAINED ESSENTIALLY UNCHANGED UNTIL
1875, WHEN CONGRESS SUBSTANTIALLY REVISED THE JUDICIARY ACT AND GREATLY
EXPANDED THE SCOPE OF FEDERAL JURISDICTION.  18 STAT. 470.  /5/  IN
DESCRIBING THE CLASS OF CASES SUBJECT TO VENUE RESTRICTIONS, THE 1875
STATUTE DROPPED THE PHRASE "SUIT . . . AGAINST AN INHABITANT OF THE
UNITED STATES" AND SUBSTITUTED "SUIT . . . AGAINST ANY PERSON."  THIS
COURT HELD, HOWEVER, THAT THE CHANGE WAS STYLISTIC AND NOT SUBSTANTIVE,
AND THAT CONGRESS DID NOT THEREBY BRING SUITS AGAINST ALIENS WITHIN THE
SCOPE OF THE VENUE LAWS.  IN RE HOHORST, 150 U.S. 653 (1893). 

THE COURT OFFERED TWO REASONS IN HOHORST FOR CONCLUDING THAT SUITS
AGAINST ALIENS REMAINED OUTSIDE THE SCOPE OF THE VENUE LAWS.  FIRST, NO
CONTEMPORARY SIGNIFICANCE APPEARS TO HAVE ATTACHED TO THE RELEVANT
CHANGE IN LANGUAGE IN 1875.  /6/  SECOND, AND PERHAPS MORE IMPORTANT,
TO HOLD THE VENUE STATUTES APPLICABLE TO SUITS AGAINST ALIENS WOULD BE
IN EFFECT TO OUST THE FEDERAL COURTS OF JURISDICTION IN MOST CASES,
BECAUSE THE GENERAL VENUE PROVISIONS WERE FRAMED WITH REFERENCE TO THE
DEFENDANT'S PLACE OF RESIDENCE OR CITIZENSHIP, AND AN ALIEN DEFENDANT
IS BY DEFINITION A CITIZEN OF NO DISTRICT.  /7/  THE HOHORST COURT
REASONED THAT IT SHOULD NOT LIGHTLY BE ASSUMED THAT CONGRESS INTENDED
THAT RESULT, IN LIGHT OF THE FACT THAT THE VENUE PROVISIONS ARE
DESIGNED, NOT TO KEEP SUITS OUT OF THE FEDERAL COURTS, BUT MERELY TO
ALLOCATE SUITS TO THE MOST APPROPRIATE OR CONVENIENT FEDERAL FORUM. 
/8/ 

THE REASONING OF HOHORST WITH RESPECT TO SUITS AGAINST ALIENS
CONTINUES TO HAVE FORCE TODAY.  IT REMAINS TRUE TODAY THAT TO HOLD THE
VENUE STATUTES APPLICABLE HERE WOULD IN EFFECT OUST THE FEDERAL COURTS
OF A JURISDICTION CLEARLY CONFERRED ON THEM BY CONGRESS.  MOREOVER, IN
THE 79 YEARS SINCE HOHORST WAS DECIDED, CONGRESS HAS NEVER GIVEN THE
SLIGHTEST INDICATION THAT IT IS DISSATISFIED WITH THE LONGSTANDING
JUDICIAL VIEW THAT THE 1789 LANGUAGE CONTINUES TO COLOR THE VENUE
STATUTES, WITH THE RESULT THAT SUITS AGAINST ALIENS ARE OUTSIDE THE
SCOPE OF ALL THE VENUE LAWS. 

        II 

PETITIONER ARGUES THAT BY ENACTING 28 U.S.C. 1400(B), CONGRESS
INDICATED A LEGISLATIVE INTENT TO REJECT THAT RULE IN PATENT CASES, AND
REGULATE THE VENUE OF SUITS AGAINST ALIENS IN THAT LIMITED CLASS OF
CASES.  THERE IS SUPPORT FOR PETITIONER'S ARGUMENT IN THE BROAD
LANGUAGE OF PRIOR DECISIONS OF THIS COURT.  TWICE BEFORE, THE COURT HAS
REFUSED TO APPLY VENUE PROVISIONS OF GENERAL APPLICABILITY TO PATENT
INFRINGEMENT CASES.  IN STONITE PRODS.  CO. V. LLOYD CO., 315 U.S. 561
(1942), THE COURT DECLARED THAT WHAT IS NOW SEC. 1400(B) IS "THE
EXCLUSIVE PROVISION CONTROLLING VENUE IN PATENT INFRINGEMENT
PROCEEDINGS."  ID., AT 563.  STONITE HELD THAT VENUE IN PATENT CASES IS
NOT AFFECTED BY WHAT IS NOW SEC. 1392(A), WHICH RELAXES CERTAIN
RESTRICTIVE VENUE RULES IN CASES INVOLVING MULTIPLE DEFENDANTS.  /9/
SIMILARLY, IN FOURCO GLASS CO. V. TRANSMIRRA PRODS.  CORP.  353 U.S.
222 (1957), THE COURT ASSERTED THAT "28 U.S.C. 1400(B) IS THE SOLE AND
EXCLUSIVE PROVISION CONTROLLING VENUE IN PATENT INFRINGEMENT ACTIONS,"
EMPHASIZING ITS CHARACTER AS "A SPECIAL VENUE STATUTE APPLICABLE,
SPECIFICALLY, TO ALL DEFENDANTS IN A PARTICULAR TYPE OF ACTIONS," ID.,
AT 228, 229.  FOURCO HELD THAT VENUE IN PATENT CASES IS NOT AFFECTED BY
SEC. 1319(C), WHICH EXPANDS FOR GENERAL VENUE PURPOSES THE DEFINITION
OF THE RESIDENCE OF A CORPORATION.  /10/ 

THE ANALYSIS IN EACH CASE RESTED HEAVILY ON THE LEGISLATIVE HISTORY
OF SEC. 1400(B).  PRIOR TO 1893, PATENT INFRINGEMENT CASES HAD BEEN
WIDELY, THOUGH NOT UNIVERSALLY, REGARDED AS SUBJECT TO THE GENERAL
FEDERAL VENUE STATUTES.  CHAFFEE V. HAYWARD, 20 HOW.  208, 215-216
(1858).  THIS COURT CAST DOUBT ON THAT PROPOSITION, HOWEVER, IN THE
HOHORST CASE, SUPRA.  WE HAVE ALREADY NOTED THAT HOHORST HELD THE
GENERAL VENUE LIMITATIONS INAPPLICABLE TO A SUIT AGAINST AN ALIEN
DEFENDANT.  /11/  IN FURTHER SUPPORT OF THE DECISION, HOWEVER, THE
COURT NOTED THAT THE SUIT WAS BASED ON A CLAIM FOR PATENT INFRINGEMENT;
THE VENUE RESTRICTIONS, SAID THE COURT, WERE INTENDED TO APPLY ONLY TO
THAT PART OF THE FEDERAL JURISDICTION THAT WAS CONCURRENT WITH STATE
COURT JURISDICTION, AND NOT TO PATENT SUITS, WHICH ARE ENTRUSTED
EXCLUSIVELY TO THE FEDERAL COURTS. 

THE APPARENT EFFECT OF THE DECISION WAS TO HOLD THAT PATENT
INFRINGEMENT SUITS COULD BE TRIED IN ANY DISTRICT, EVEN WHEN THE
DEFENDANT WAS NOT AN ALIEN.  AFTER HOHORST, THERE WAS GREAT CONFUSION
ON THIS POINT IN THE LOWER COURTS.  /12/  CONGRESS RESPONDED PROMPTLY,
CREATING A SPECIAL NEW VENUE STATUTE FOR THE OCCASION:  PATENT
INFRINGEMENT CLAIMS WERE TO BE HEARD ONLY IN THE DISTRICT WHERE THE
DEFENDANT WAS AN INHABITANT, OR THE DISTRICT WHERE HE COMMITTED ACTS OF
INFRINGEMENT AND ALSO MAINTAINED A REGULAR AND ESTABLISHED PLACE OF
BUSINESS.  29 STAT. 695 (1897), NOW CODIFIED AS 28 U.S.C. 1400(B).  THE
NEW PROVISION WAS OF COURSE MORE RESTRICTIVE THAN THE LAW AS IT WAS
LEFT BY HOHORST, BUT IT WAS RATHER LESS RESTRICTIVE THAN THE GENERAL
VENUE PROVISION THEN APPLICABLE TO CLAIMS ARISING UNDER FEDERAL LAW. 
/13/  OVER THE OBJECTIONS OF SOME LEGISLATORS, WHO COULD SEE NO REASON
FOR TREATING PATENT SUITS DIFFERENTLY FROM ANY OTHER FEDERAL-QUESTION
LITIGATION, /14/ CONGRESS TOOK THE OPPORTUNITY TO ESTABLISH FOR PATENT
INFRINGEMENT SUITS A SPECIAL AND SEPARATE VENUE STATUTE.  THUS IT IS
FAIR TO SAY, AS THE COURT DID IN STONITE AND FOURCO, THAT IN 1897
CONGRESS PLACED PATENT INFRINGEMENT CASES IN A CLASS BY THEMSELVES,
OUTSIDE THE SCOPE OF GENERAL VENUE LEGISLATION. 

BUT THAT ANALYSIS SHEDS NO LIGHT ON THE PRESENT CASE.  FOR IT
TOTALLY MISCONCEIVED THE ORIGIN AND PURPOSE OF 1391(D) TO CHARACTERIZE
THAT STATUTE AS AN APPENDAGE TO THE GENERAL VENUE STATUTES, ANALOGOUS
TO THE PROVISIONS AT ISSUE IN STONITE AND FOURCO.  SECTION 1391(D) IS
NOT DERIVED FROM THE GENERAL VENUE STATUTES THAT SEC. 1400(B) WAS
INTENDED TO REPLACE.  SECTION 1391(D) REFLECTS, RATHER, THE
LONGSTANDING RULE THAT SUITS AGAINST ALIEN DEFENDANTS ARE OUTSIDE THOSE
STATUTES.  SINCE THE GENERAL VENUE STATUTES DID NOT REACH SUITS AGAINST
ALIEN DEFENDANTS, THERE IS NO REASON TO SUPPOSE THE NEW SUBSTITUTE IN
PATENT CASES WAS INTENDED TO DO SO.  INDEED, THE ONLY GLIMMER OF
EVIDENCE OF LEGISLATIVE INTENT POINTS IN THE OTHER DIRECTION.  WE HAVE
NO RELIABLE INDICATION OF WHAT CONGRESS THOUGHT ABOUT THE MATTER IN
1875, WHEN IT DROPPED THE LANGUAGE THAT EXPRESSLY EXCLUDED SUITS
AGAINST ALIEN DEFENDANTS FROM THE GENERAL VENUE STATUTES, OR IN 1897,
WHEN IT ENACTED THE SPECIAL PATENT VENUE STATUTE.  BUT IN 1948,
CONGRESS WAS APPARENTLY QUITE CONTENT TO LEAVE SUITS AGAINST ALIEN
DEFENDANTS EXEMPT FROM THE VENUE STATUTES, IN PATENT CASES AS IN ALL
OTHERS.  IN THAT YEAR, CONGRESS CODIFIED AS SEC. 1391(D) THE RULE
EXEMPTING SUITS AGAINST ALIENS FROM THE FEDERAL VENUE STATUTES.  THE
REVISER'S NOTES, WHICH PROVIDE THE PRINCIPAL GUIDE TO INTERPRETATION OF
THE 1948 JUDICIAL CODE, EXPLAIN THAT INTENT TO CODIFY A RULE THAT
COMMANDS THE "WEIGHT OF AUTHORITY," CITING A PAIR OF DISTRICT COURT
CASES.  THESE CASES HOLD THAT THE GENERAL VENUE LAWS DO NOT CONTROL IN
A SUIT AGAINST AN ALIEN DEFENDANT, NOR DOES THE SPECIAL PATENT VENUE
LAW.  SANDUSKY FOUNDRY & MACHINE CO. V. DELAVAUD, 251 F. 631 (ND OHIO
1918); KEATING V. PENNSYLVANIA CO., 245 F. 155 (ND OHIO 1917). 

  III 

WE CONCLUDE THAT IN SEC. 1391(D) CONGRESS WAS STATING A PRINCIPLE OF
BROAD AND OVERRIDING APPLICATION, AND NOT MERELY MAKING AN ADJUSTMENT
IN THE GENERAL VENUE STATUTE, AS THIS COURT FOUND CONGRESS HAD DONE IN
STONITE AND FOURCO.  THE PRINCIPLE OF SEC. 1391(D) CANNOT BE CONFINED
IN ITS APPLICATION TO CASES THAT WOULD OTHERWISE FALL UNDER THE GENERAL
VENUE STATUTES.  FOR SEC. 1391(D) IS PROPERLY REGARDED, NOT AS A VENUE
RESTRICTION AT ALL, BUT RATHER AS A DECLARATION OF THE LONG-ESTABLISHED
RULE THAT SUITS AGAINST ALIENS ARE WHOLLY OUTSIDE THE OPERATION OF ALL
THE FEDERAL VENUE LAWS, GENERAL AND SPECIAL. 

THAT RULE, WICH HAS PREVAILED THROUGHOUT THE HISTORY OF THE FEDERAL
COURTS, CONTROLS THIS CASE.  SINCE RESPONDENT BRUNETTE IS AN ALIEN
CORPORATION, IT CANNOT RELY ON SEC. 1400(B) AS A SHIELD AGAINST SUIT IN
THE DISTRICT OF OREGON.  THE JUDGMENT OF THE COURT OF APPEALS IS
AFFIRMED. 

/1/  RESPONDENT'S SUIT AGAINST ONE OF THOSE MANUFACTURERS, AN OREGON
CORPORATION, IS NOW PENDING ON APPEAL TO THE COURT OF APPEALS FOR THE
NINTH CIRCUIT.  KOCKUM INDUSTRIES, INC. V. SALEM EQUIPMENT, INC., NO.
25870. 

/2/  PETITIONER DOES NOT "RESIDE" IN OREGON, BECAUSE THE RESIDENCE
OF A CORPORATION FOR PURPOSES OF SEC. 1400(B) IS ITS PLACE OF
INCORPORATION.  FOURCO GLASS CO. V. TRANSMIRRA PRODS.  CORP., 353 U.S.
222 (1957), DISCUSSED INFRA, AT 711 AND N. 10.  AND WHILE THE ALLEGED
INFRINGEMENT OCCURRED IN OREGON, PETITIONER APPARENTLY HAS NO REGULAR
PLACE OF BUSINESS THERE. 

/3/  COMPARE THE DECISION OF THE COURT OF APPEALS FOR THE NINTH
CIRCUIT BELOW WITH COULTER ELECTRONICS, INC. V. A. B. LARS LJUNGBERG &
CO., 363 F.2D 743 (CA7), CERT. DENIED, 389 U.S. 859 (1967).  SEVERAL
DISTRICT COURTS IN OTHER CIRCUITS HAVE ADOPTED THE VIEW TAKEN BY THE
COURT OF APPEALS FOR THE NINTH CIRCUIT IN THIS CASE, SEE CHAS. PFIZER &
CO. V. LABORATORI PRO-TER PRODOTTI THERAPEUTICI, 278 F.SUPP.  148 (SDNY
1967); OLIN MATHIESON CHEMICAL CORP. V. MOLINS ORGANIZATIONS, LTD., 261
F.SUPP.  436 (ED VA. 1966). 

/4/  THE PROVISION FOR REVENUE WHEREVER THE DEFENDANT "SHALL BE
FOUND" IS DECEPTIVELY BROAD.  THE GRANT OF FEDERAL JURISDICTION AT THAT
TIME CONSISTED ALMOST EXCLUSIVELY OF SUITS BETWEEN PARTIES OF DIVERSE
CITIZENSHIP.  UNLIKE THE PRESENT STATUTE, HOWEVER, WHICH PROVIDES FOR
JURISDICTION OVER SUITS "BETWEEN . . . CITIZENS OF DIFFERENT STATES,"
28 U.S.C. 1332(A)(1), THE 1789 STATUTE PROVIDED FOR JURISDICTION OVER
SUITS "BETWEEN A CITIZEN OF THE STATE WHERE THE SUIT IS BROUGHT, AND A
CITIZEN OF ANOTHER STATE."  1 STAT. 78.  THUS THE LITIGANTS WERE
EFFECTIVELY CONFINED TO THE DISTRICT OF RESIDENCE OF ONE OF THEM, BY
THE JURISDICTIONAL GRANT THOUGH NOT BY THE VENUE STATUTES.  THIS
RESTRICTION WAS ELIMINATED IN 1875, WHEN A NUMBER OF IMPORTANT CHANGES
WERE MADE IN THE JUDICIARY ACT, SEE N. 5, INFRA, AND THE RELEVANT
CLAUSE OF THE GRANT OF DIVERSITY JURISDICTION WAS REPHRASED IN ITS
PRESENT FORM, 18 STAT. 470. 

/5/  THE JURISDICTION OF THE FEDERAL COURTS WAS EXTENDED TO INCLUDE
SUITS "ARISING UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES,"
I.E., THE FEDERAL-QUESTION JURISDICTION NOW FOUND IN 28 U.S.C.
1331(A).  AND THE DIVERSITY JURISDICTION WAS REPHRASED, SEE N. 4,
SUPRA.     /6/  IN RE HOHORST, 150 U.S. 653, 661 (1893), CITING IN RE
LOUISVILLE UNDERWRITERS, 134 U.S. 488, 492 (1890), AND SHAW V. QUINCY
MINING CO., 145 U.S. 444, 448 (1892), FOR THE PROPOSITION THAT THE
SUBSTITUTION "HAS BEEN ASSUMED TO BE AN IMMATERIAL CHANGE." 

/7/  IN 1875, THE RESTRICTIONS ON VENUE IN THE FEDERAL COURTS WERE
THOSE IMPOSED BY THE 1789 STATUTE QUOTED IN TEXT: SUIT COULD BE BROUGHT
WHERE THE DEFENDANT WAS AN INHABITANT, OR WHERE HE COULD BE FOUND.  IN
1887, HOWEVER, CONGRESS ELIMINATED THE PROVISION AUTHORIZING SUIT
WHEREVER THE DEFENDANT COULD BE FOUND:  FEDERAL-QUESTION CASES COULD BE
BROUGHT ONLY WHERE THE DEFENDANT WAS AN "INHABITANT," AND DIVERSITY
CASES ONLY WHERE EITHER THE PLAINTIFF OR THE DEFENDANT RESIDES.  24
STAT. 552.  A SUIT AGAINST AN ALIEN WAS NOT REGARDED AS A TRUE
DIVERSITY SUIT, AND HENCE IT WAS NECESSARY TO SATISFY THE REQUIREMENTS
OF FEDERAL-QUESTION VENUE, I.E., RESIDENCE OF THE DEFENDANT.  HOHORST,
SUPRA, AT 660. 

TODAY THE GENERAL VENUE PROVISIONS FOR FEDERAL-QUESTION AND
DIVERSITY CASES APPEAR IN 28 U.S.C. 1391(A) AND (B); THEY FOLLOW THE
1887 STATUTE, EXCEPT THAT CONGRESS HAS ADDED A PROVISION FOR VENUE
WHERE "THE CLAIM AROSE," SEE N. 8, INFRA. 

/8/  THERE HAVE BEEN, AND PERHAPS THERE STILL ARE, OCCASIONAL GAPS
IN THE VENUE LAWS, I.E., CASES IN WHICH THE FEDERAL COURTS HAVE
JURISDICTION BUT THERE IS NO DISTRICT IN WHICH VENUE IS PROPER.  ONE
SUCH GAP AROSE IN CONNECTION WITH CASES INVOLVING MULTIPLE PLAINTIFFS
AND DEFENDANTS.  VENUE WAS FIXED AT THE RESIDENCE OF THE DEFENDANT, OR
IN DIVERSITY CASES AT THE RESIDENCE OF THE PLAINTIFF AS WELL.  WHEN
THERE WERE MULTIPLE PLAINTIFFS OR DEFENDANTS, THE DISTRICT OF RESIDENCE
FOR VENUE PURPOSES WAS THE DISTRICT WHERE ALL PLAINTIFFS OR ALL
DEFENDANTS RESIDE.  SMITH V. LYON, 133 U.S. 315 (1890).  IF THEY
RESIDED IN DIFFERENT DISTRICTS THEN THERE WAS NO PROPER VENUE.  IN 1966
CONGRESS ACTED TO CLOSE THE GAP WITH A PROVISION AUTHORIZING SUIT WHERE
"THE CLAIM AROSE," 80 STAT. 1111, WHICH IN MOST CASES PROVIDES A PROPER
VENUE EVEN IN MULTIPLE-PARTY SITUATIONS.  THE DEVELOPMENT SUPPORTS THE
VIEW THAT CONGRESS DOES NOT IN GENERAL INTEND TO CREAT VENUE GAPS,
WHICH TAKE AWAY WITH ONE HAND WHAT CONGRESS HAS GIVEN BY WAY OF
JURISDICTIONAL GRANT WITH THE OTHER.  THUS, IN CONSTRUING VENUE
STATUTES IT IS REASONABLE TO PREFER THE CONSTRUCTION THAT AVOIDS
LEAVING SUCH A GAP. 

/9/  SECTION 1392(A), ORIGINALLY 11 STAT. 272 (1858), AFFORDS SOME
RELIEF IN A VERY SMALL CLASS OF CASES THAT FALL IN THE GAP DESCRIBED IN
N. 8, SUPRA.  WHEN MULTIPLE DEFENDANTS RESIDE IN DIFFERENT DISTRICTS
WITHIN THE SAME STATE, THE SUIT MAY BE BROUGHT IN ANY ONE OF THEM. 

/10/  SECTION 1391(C), ENACTED 62 STAT. 935 (1948), PROVIDES:  "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." 

/11/  SEE SUPRA, AT 709-710. 

/12/  SEE STONITE PRODS.  CO. V. LLOYD CO., 315 U.S. 561, 564-565
(1924); CONFLICTING DECISIONS COLLECTED AT 29 CONG.REC.  1901 (1897). 

/13/  VENUE IN A FEDERAL-QUESTION CASE WAS AT THAT TIME PROPER ONLY
WHERE THE DEFENDANT WAS AN INHABITANT, 24 STAT. 552 (1887), AS
CORRECTED, 25 STAT. 434 (1888).  THUS, THE NEW STATUTE GAVE PATENT
CLAIMANTS AN ADVANTAGE BY AUTHORIZING AS AN ADDITIONAL VENUE
ALTERNATIVE ANY DISTRICT WHERE THE DEFENDANT MAINTAINED A REGULAR PLACE
OF BUSINESS, AND COMMITTED ACTS OF INFRINGEMENT.  IRONICALLY, CHANGES
IN THE GENERAL VENUE LAW HAVE LEFT THE PATENT VENUE STATUTE FAR
BEHIND.  SINCE 1948, THE GENERAL VENUE LAW HAS AUTHORIZED SUIT AGAINST
A CORPORATE DEFENDANT NOT ONLY WHERE HE MAINTAINS A "REGULAR AND
ESTABLISHED PLACE OF BUSINESS," AS IN SEC. 1400(B), BUT ALSO WHERE HE
IS "DOING BUSINESS."  62 STAT. 935, NOW SEC. 1391(C).  AND SINCE 1966,
THE GENERAL VENUE LAW HAS AUTHORIZED SUIT WHERE "THE CLAIM AROSE," SEE
N. 8, SUPRA. 

/14/  SEE 29 CONG.REC.  1901 (REMARKS OF CONG. PAYNE). 

J. PIERRE KOLISCH ARGUES THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

HARRY M. CROSS, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 

MARTIN J. ADELMAN FILED A BRIEF FOR I.T.L. INDUSTRIES LIMITED AS
AMICUS CURIAE URGING REVERSAL. 

CURTIS F. PRANGLEY, RONALD A. SANDLER, AND J. TERRY STRATMAN FILED A
BRIEF FOR AMERACE ESNA CORP. AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :




JACKSON V. INDIANA, 406 U.S. 715 


       JACKSON V. INDIANA

        CERTIORARI TO THE SUPREME COURT OF INDIANA

        NO. 70-5009.  ARGUED NOVEMBER 18, 1971-- DECIDED JUNE 7,

           1972 


THE INDIANA PROCEDURE FOR PRETRIAL COMMITMENT OF INCOMPETENT CRIMINAL
DEFENDANTS SET FORTH IN IND. ANN STAT. SEC. 9-1706A PROVIDES THAT A
TRIAL JUDGE WITH "REASONABLE GROUND" TO BELIEVE THE DEFENDANT TO BE
INCOMPETENT TO STAND TRIAL MUST APPOINT TWO EXAMINING PHYSICIANS AND
SCHEDULE A COMPETENCY HEARING, AT WHICH THE DEFENDANT MAY INTRODUCE
EVIDENCE.  IF THE COURT, ON THE BASIS OF THE PHYSICIANS' REPORT AND
"OTHER EVIDENCE," FINDS THAT THE DEFENDANT LACKS "COMPREHENSION
SUFFICIENT TO UNDERSTAND THE PROCEEDINGS AND MAKE HIS DEFENSE," THE
TRIAL IS DELAYED AND THE DEFENDANT IS REMANDED TO THE STATE DEPARTMENT
OF MENTAL HEALTH FOR COMMITMENT TO AN "APPROPRIATE PSYCHIATRIC
INSTITUTION" UNTIL DEFENDANT SHALL BECOME "SANE."  OTHER STATUTORY
PROVISIONS APPLY TO COMMITMENT OF CITIZENS WHO ARE "FEEBLE-MINDED, AND
ARE THEREFORE UNABLE PROPERLY TO CARE FOR THEMSELVES."  THE PROCEDURES
FOR COMMITTING SUCH PERSONS ARE SUBSTANTIALLY SIMILAR TO THOSE FOR
DETERMINING A CRIMINAL DEFENDANT'S PRETRIAL COMPETENCY, BUT A PERSON
COMMITTED AS "FEEBLE-MINDED" MAY BE RELEASED "AT ANY TIME" HIS
CONDITION WARRANTS IT IN THE JUDGMENT OF THE SUPERINTENDENT OF THE
INSTITUTION.  INDIANA ALSO HAS A COMPREHENSIVE COMMITMENT SCHEME FOR
THE "MENTALLY ILL," I.E., THOSE WITH A "PSYCHIATRIC DISORDER" AS
DEFINED BY THE STATUTE, WHO CAN BE COMMITTED ON A SHOWING OF MENTAL
ILLNESS AND NEED FOR "CARE, TREATMENT, TRAINING OR DETENTION."  A
PERSON SO COMMITTED MAY BE RELEASED WHEN THE SUPERINTENDENT OF THE
INSTITUTION SHALL DISCHARGE HIM, OR WHEN HE IS CURED.  PETITIONER IN
THIS CASE, A MENTALLY DEFECTIVE DEAF MUTE, WHO CANNOT READ, WRITE, OR
VIRTUALLY OTHERWISE COMMUNICATE, WAS CHARGED WITH TWO CRIMINAL OFFENSES
AND COMMITTED UNDER THE SEC. 9-1706A PROCEDURE.  THE DOCTORS' REPORT
SHOWED THAT PETITIONER'S CONDITION PRECLUDED HIS UNDERSTANDING THE
NATURE OF THE CHARGES AGAINST HIM OR PARTICIPATING IN HIS DEFENSE AND
THEIR TESTIMONY SHOWED THAT THE PROGNOSIS WAS "RATHER DIM"; THAT EVEN
IF PETITIONER WERE NOT A DEAF MUTE HE WOULD BE INCOMPETENT TO STAND
TRIAL; AND THAT PETITIONER'S INTELLIGENCE WAS NOT SUFFICIENT TO ENABLE
HIM EVER TO DEVELOP THE NECESSARY COMMUNICATION SKILLS.  ACCORDING TO A
DEAF-SCHOOL INTERPRETER'S TESTIMONY, THE STATE HAD NO FACILITIES THAT
COULD HELP PETITIONER LEARN MINIMAL COMMUNICATION SKILLS.  AFTER
FINDING THAT PETITIONER "LACKED) COMPREHENSION SUFFICIENT TO MAKE HIS
DEFENSE," THE COURT ORDERED PETITIONER COMMITTED UNTIL SUCH TIME AS THE
HEALTH DEPARTMENT COULD CERTIFY PETITIONER'S SANITY TO THE COURT. 
PETITIONER'S COUNSEL FILED A MOTION FOR A NEW TRIAL, WHICH WAS DENIED. 
THE STATE SUPREME COURT AFFIRMED.  CONTENDING THAT HIS COMMITMENT WAS
TANTAMOUNT TO A "LIFE SENTENCE" WITHOUT HIS HAVING BEEN CONVICTED OF A
CRIME, PETITIONER CLAIMS THAT COMMITMENT UNDER SEC. 9-1706A DEPRIVED
HIM OF EQUAL PROTECTION BECAUSE, ABSENT THE CRIMINAL CHARGED AGAINST
HIM, THE STATE WOULD HAVE HAD TO PROCEED UNDER THE OTHER STATUTORY
PROCEDURES FOR THE FEEBLE-MINDED OR THOSE FOR THE MENTALLY ILL, UNDER
EITHER OF WHICH PETITIONER WOULD HAVE BEEN ENTITLED TO SUBSTANTIALLY
GREATER RIGHTS.  PETITIONER ALSO ASSERTS THAT INDEFINITE COMMITMENT
UNDER THE SECTION DEPRIVED HIM OF DUE PROCESS AND SUBJECTED HIM TO
CRUEL AND UNUSUAL PUNISHMENT.  HELD: 

1.  BY SUBJECTING PETITIONER TO A MORE LENIENT COMMITMENT STANDARD
AND TO A MORE STRINGENT STANDARD OF RELEASE THAN THOSE GENERALLY
APPLICABLE TO ALL OTHER PERSONS NOT CHARGED WITH OFFENSES, THUS
CONDEMNING PETITIONER TO PERMANENT INSTITUTIONALIZATION WITHOUT THE
SHOWING REQUIRED FOR COMMITMENT OR THE OPPORTUNITY FOR RELEASE AFFORDED
BY ORDINARY CIVIL COMMITMENT PROCEDURES, INDIANA DEPRIVED PETITIONER OF
EQUAL PROTECTION.  CF. BAXSTROM V. HEROLD, 383 U.S. 107.  PP. 723-731. 

2.  INDIANA'S INDEFINITE COMMITMENT OF A CRIMINAL DEFENDANT SOLEY ON
ACCOUNT OF HIS LACK OF CAPACITY TO STAND TRIAL VIOLATES DUE PROCESS. 
SUCH A DEFENDANT CANNOT BE HELD MORE THAN THE REASONABLE PERIOD OF TIME
NECESSARY TO DETERMINE WHETHER THERE IS A SUBSTANTIAL PROBABILITY THAT
HE WILL ATTAIN COMPETENCY IN THE FORESEEABLE FUTURE.  IF IT IS
DETERMINED THAT HE WILL NOT, THE STATE MUST EITHER INSTITUTE CIVIL
PROCEEDINGS APPLICABLE TO INDEFINITE COMMITMENT OF THOSE NOT CHARGED
WITH CRIME, OR RELEASE THE DEFENDANT.  GREENWOOD V. UNITED STATES, 350
U.S. 366, DISTINGUISHED.  PP. 731-739. 

3.  SINCE THE ISSUE OF PETITIONER'S CRIMINAL RESPONSIBILITY AT THE
TIME OF THE ALLEGED OFFENSES (AS DISTINGUISHED FROM THE ISSUE OF HIS
COMPETENCY TO STAND TRIAL) HAS NOT BEEN DETERMINED AND OTHER MATTERS OF
DEFENSE MAY REMAIN TO BE RESOLVED, IT WOULD BE PREMATURE FOR THIS COURT
TO DISMISS THE CHARGES AGAINST PETITIONER.  PP. 739-741. 

253 IND. 487, 255 N.E.2D 515, REVERSED AND REMANDED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

WE ARE HERE CONCERNED WITH THE CONSTITUTIONALITY OF CERTAIN ASPECTS
OF INDIANA'S SYSTEM FOR PRETRIAL COMMITMENT OF ONE ACCUSED OF CRIME. 

PETITIONER, THEON JACKSON, IS A MENTALLY DEFECTIVE DEAF MUTE WITH A
MENTAL LEVEL OF A PRE-SCHOOL CHILD.  HE CANNOT READ, WRITE, OR
OTHERWISE COMMUNICATE EXCEPT THROUGH LIMITED SIGN LANGUAGE.  IN MAY
1968, AT AGE 27, HE WAS CHARGED IN THE CRIMINAL COURT OF MARION COUNTY,
INDIANA, WITH SEPARATE ROBBERIES OF TWO WOMEN.  THE OFFENSES WERE
ALLEGED TO HAVE OCCURRED THE PRECEDING JULY.  THE FIRST INVOLVED
PROPERTY (A PURSE AND ITS CONTENTS) OF THE VALUE OF FOUR DOLLARS.  THE
SECOND CONCERNED FIVE DOLLARS IN MONEY.  THE RECORD SHEDS NO LIGHT ON
THESE CHARGES SINCE, UPON RECEIPT OF NOT-GUILTY PLEAS FROM JACKSON, THE
TRIAL COURT SET IN MOTION THE INDIANA PROCEDURES FOR DETERMINING HIS
COMPETENCY TO STAND TRIAL.  IND. ANN. STAT. SEC. 9-1706A (SUPP. 1971),
/1/  NOW IND. CODE 35-5-3-2 (1971). 

AS THE STATUTE REQUIRES, THE COURT APPOINTED TWO PSYCHIATRIST TO
EXAMINE JACKSON.  A COMPETENCY HEARING WAS SUBSEQUENTLY HELD AT WHICH
PETITIONER WAS REPRESENTED BY COUNSEL.  THE COURT RECEIVED THE
EXAMINING DOCTORS'  JOINT WRITTEN REPORT AND ORAL TESTIMONY FROM THEM
AND FROM A DEAF-SCHOOL INTERPRETER THROUGH WHOM THEY HAD ATTEMPTED TO
COMMUNICATE WITH PETITIONER.  THE REPORT CONCLUDED THAT JACKSON'S
ALMOST NONEXISTENT COMMUNICATION SKILL, TOGETHER WITH HIS LACK OF
HEARING AND HIS MENTAL DEFICIENCY, LEFT HIM UNABLE TO UNDERSTAND THE
NATURE OF THE CHARGES AGAINST HIM OR TO PARTICIPATE IN HIS DEFENSE. 
ONE DOCTOR TESTIFIED THAT IT WAS EXTREMELY UNLIKELY THAT PETITIONER
COULD EVER LEARN TO READ OR WRITE AND QUESTIONED WHETHER PETITIONER
EVEN HAD THE ABILITY TO DEVELOP ANY PROFICIENCY IN SIGN LANGUAGE.  HE
BELIEVED THAT THE INTERPRETER HAD NOT BEEN ABLE TO COMMUNICATE WITH
PETITIONER TO ANY GREAT EXTENT AND TESTIFIED THAT PETITIONER'S
"PROGNOSIS APPEARS RATHER DIM."  THE OTHER DOCTOR TESTIFIED THAT EVEN
IF JACKSON WERE NOT A DEAF MUTE, HE WOULD BE INCOMPETENT TO STAND
TRIAL, AND DOUBTED WHETHER PETITIONER HAD SUFFICIENT INTELLIGENCE EVER
TO DEVELOP THE NECESSARY COMMUNICATION SKILLS.  THE INTERPRETER
TESTIFIED THAT INDIANA HAD NO FACILITIES THAT COULD HELP SOMEONE AS
BADLY OFF AS JACKSON TO LEARN MINIMAL COMMUNICATION SKILLS. 

ON THIS EVIDENCE, THE TRIAL COURT FOUND THAT JACKSON "LACKED)
COMPREHENSION SUFFICIENT TO MAKE HIS DEFENSE," SEC. 9-1706A, AND
ORDERED HIM COMMITTED TO THE INDIANA DEPARTMENT OF MENTAL HEALTH UNTIL
SUCH TIME AS THAT DEPARTMENT SHOULD CERTIFY TO THE COURT THAT "THE
DEFENDANT IS SANE." 

PETITIONER'S COUNSEL THEN FILED A MOTION FOR A NEW TRIAL, CONTENDING
THAT THERE WAS NO EVIDENCE THAT JACKSON WAS "INSANE," OR THAT HE WOULD
EVER ATTAIN A STATUS WHICH THE COURT MIGHT REGARD AS "SANE" IN THE
SENSE OF COMPETENCY TO STAND TRIAL.  COUNSEL ARGUED THAT JACKSON'S
COMMITMENT UNDER THESE CIRCUMSTANCES AMOUNTED TO A "LIFE SENTENCE"
WITHOUT HIS EVER HAVING BEEN CONVICTED OF A CRIME, AND THAT THE
COMMITMENT THEREFORE DEPRIVED JACKSON OF HIS FOURTEENTH AMENDMENT
RIGHTS TO DUE PROCESS AND EQUAL PROTECTION, AND CONSTITUTED CRUEL AND
UNUSUAL PUNISHMENT UNDER THE EIGHTH AMENDMENT MADE APPLICABLE TO THE
STATES THROUGH THE FOURTEENTH.  THE TRIAL COURT DENIED THE MOTION.  ON
APPEAL THE SUPREME COURT OF INDIANA AFFIRMED, WITH ONE JUDGE
DISSENTING.  253 IND. 487, 255 N.E.2D 515 (1970).  REHEARING WAS
DENIED, WITH TWO JUDGES DISSENTING.  WE GRANTED CERTIORARI, 401 U.S.
973 (1971). 

FOR THE REASONS SET FORTH BELOW, WE CONCLUDE THAT, ON THE RECORD
BEFORE US, INDIANA CANNOT CONSTITUTIONALLY COMMIT THE PETITIONER FOR AN
INDEFINITE PERIOD SIMPLY ON ACCOUNT OF HIS INCOMPETENCY TO STAND TRIAL
ON THE CHARGES FILED AGAINST HIM.  ACCORDINGLY, WE REVERSE. 

        I

        INDIANA COMMITMENT PROCEDURES 

REQUIREMENTS FOR PRETRIAL COMMITMENT OF INCOMPETENT CRIMINAL DEFENDANTS
IN INDIANA.  IF AT ANY TIME BEFORE SUBMISSION OF THE CASE TO THE COURT
OR JURY THE TRIAL JUDGE HAS "REASONABLE GROUND" TO BELIEVE THE
DEFENDANT "TO BE INSANE,"  /2/  HE MUST APPOINT TWO EXAMINING
PHYSICIANS AND SCHEDULE A COMPETENCY HEARING.  THE HEARING IS TO THE
COURT ALONE, WITHOUT A JURY.  THE EXAMINING PHYSICIANS' TESTIMONY AND
"OTHER EVIDENCE" MAY BE ADDUCED ON THE ISSUE OF INCOMPETENCY.  IF THE
COURT FINDS THE DEFENDANT "HAS NOT COMPREHENSION SUFFICIENT TO
UNDERSTAND THE PROCEEDINGS AND MAKE HIS DEFENSE," TRIAL IS DELAYED OR
CONTINUED AND THE DEFENDANT IS REMANDED TO THE STATE DEPARTMENT OF
MENTAL HEALTH TO BE CONFINED IN AN "APPROPRIATE PSYCHIATRIC
INSTITUTION."  THE SECTION FURTHER PROVIDES THAT "(WHENEVER THE
DEFENDANT SHALL BECOME SANE" THE SUPERINTENDENT OF THE INSTITUTION
SHALL CERTIFY THAT FACT TO THE COURT, AND THE COURT SHALL ORDER HIM
BROUGHT ON TO TRIAL.  THE COURT MAY ALSO MAKE SUCH AN ORDER SUA
SPONTE.  THERE IS NOT STATUTORY PROVISION FOR PERIODIC REVIEW OF THE
DEFENDANT'S CONDITION BY EITHER THE COURT OR MENTAL HEALTH
AUTHORITIES.  SECTION 9-1706A BY ITS TERMS DOES NOT ACCORD THE
DEFENDANT ANY RIGHT TO COUNSEL AT THE COMPETENCY HEARING OR OTHERWISE
DESCRIBE THE NATURE OF THE HEARING; BUT JACKSON WAS REPRESENTED BY
COUNSEL WHO CROSS-EXAMINED THE TESTIFYING DOCTORS CAREFULLY AND CALLED
WITNESSES ON BEHALF OF THE PETITIONER-DEFENDANT. 

PETITIONER'S CENTRAL CONTENTION IS THAT THE STATE, IN SEEKING IN
EFFECT TO COMMIT HIM TO A MENTAL INSTITUTION INDEFINITELY, SHOULD HAVE
BEEN REQUIRED TO INVOKE THE STANDARDS AND PROCEDURES OF IND. ANN. STAT.
22-1907, NOW IND. CODE 16-15-1-3 (1971), GOVERNING COMMITMENT OF
"FEEBLE-MINDED" PERSONS.  THAT SECTION PROVIDES THAT UPON APPLICATION
OF A "REPUTABLE CITIZEN OF THE COUNTY" AND ACCOMPANYING CERTIFICATE OF
A REPUTABLE PHYSICIAN THAT A PERSON IS "FEEBLE-MINDED AND IS NOT INSANE
OR EPILEPTIC" A CIRCUIT COURT JUDGE SHALL APPOINT TWO PHYSICIANS TO
EXAMINE SUCH PERSON.  AFTER NOTICE, A HEARING IS HELD AT WHICH THE
PATIENT IS ENTITLED TO BE REPRESENTED BY COUNSEL.  IF THE JUDGE
DETERMINES THAT THE INDIVIDUAL IS INDEED "FEEBLE-MINDED," HE ENTERS AN
ORDER OF COMMITMENT AND DIRECTS THE CLERK OF THE COURT TO APPLY FOR THE
PERSON'S ADMISSION "TO THE SUPERINTENDENT OF THE INSTITUTION FOR FEEBLE
MINDED PERSONS LOCATED IN THE DISTRICT IN WHICH SAID COUNTY IS
SITUATED."  A PERSON COMMITTED UNDER THIS SECTION MAY BE RELEASED "AT
ANY TIME," PROVIDED THAT "IN THE JUDGMENT OF THE SUPERINTENDENT, THE
MENTAL AND PHYSICAL CONDITION OF THE PATIENT JUSTIFIED IT."  SEC. 22
1814, NOW IND. CODE 16-15-4-12 (1971).  THE STATUTES DO NOT DEFINE
EITHER "FEEBLE-MINDEDNESS" OR "INSANITY" AS USED IN SEC. 22-1907.  BUT
A STATUTE ESTABLISHING A SPECIAL INSTITUTION FOR CARE OF SUCH PERSONS,
SEC. 22-1801, REFERS TO THE DUTY OF THE STATE TO PROVIDE CARE FOR ITS
CITIZENS WHO ARE "FEEBLE-MINDED, AND ARE THEREFORE UNABLE PROPERLY TO
CARE FOR THEMSELVES."  /3/ THESE PROVISIONS EVIDENTLY AFFORD THE STATE
A VEHICLE FOR COMMITMENT OF PERSONS IN NEED OF CUSTODIAL CARE WHO ARE
"NOT INSANE" AND THEREFORE DO NOT QUALIFY AS "MENTALLY ILL" UNDER THE
STATE'S GENERAL INVOLUNTARY CIVIL COMMITMENT SCHEME.  SEE SECS. 22-1201
TO 22-1256, NOW IND. CODE 16-14-9-1 TO 16-14-9-31, 16-13-2-9 TO 16-13-2
10, 35-5-3-4, 16-14-14-1 TO 16-14-14-19, AND 16-14-15-5, 16-14-15-1,
AND 16-14-19-1 (1971). 

SCANT ATTENTION WAS PAID THIS GENERAL CIVIL COMMITMENT LAW BY THE
INDIANA COURTS IN THE PRESENT CASE.  AN UNDERSTANDING OF IT, HOWEVER,
IS ESSENTIAL TO A FULL AIRING OF THE EQUAL PROTECTION CLAIMS RAISED BY
PETITIONER.  SECTION 22-1201 (1) DEFINED A "MENTALLY ILL PERSON" AS ONE
WHO 

"IS AFFLICTED WITH A PSYCHIATRIC DISORDER WHICH SUBSTANTIALLY
IMPAIRS HIS MENTAL HEALTH; AND, BECAUSE OF SUCH PSYCHIATRIC DISORDER,
REQUIRES CARE, TREATMENT, TRAINING OR DETENTION IN THE INTEREST OF THE
WELFARE OF SUCH PERSON OR THE WELFARE OF OTHERS OF THE COMMUNITY IN
WHICH SUCH PERSON RESIDES."  SECTION 22-1201 (2) DEFINED A "PSYCHIATRIC
DISORDER" TO BE ANY MENTAL ILLNESS OR DISEASE, INCLUDING ANY MENTAL
DEFICIENCY, EPILEPSY, ALCOHOLISM, OR DRUG ADDICTION.  OTHER SECTIONS
SPECIFY PROCEDURES FOR INVOLUNTARY COMMITMENT OF "MENTALLY ILL" PERSONS
THAT ARE SUBSTANTIALLY SIMILAR TO THOSE FOR COMMITMENT OF THE FEEBLE
MINDED.  FOR EXAMPLE, A CITIZEN'S SWORN STATEMENT AND THE STATEMENT OF
A PHYSICIAN ARE REQUIRED.  SEC. 22-1212.  THE CIRCUIT COURT JUDGE, THE
APPLICANT, AND THE PHYSICIAN THEN CONSULT TO FORMULATE A TREATMENT
PLAN.  SEC. 22-1213.  NOTICE TO THE INDIVIDUAL IS REQUIRED, SEC. 22
1216, AND HE IS EXAMINED BY TWO PHYSICIANS, SEC. 22-1215.  THERE ARE
PROVISIONS FOR TEMPORARY COMMITMENT.  A HEARING IS HELD BEFORE A JUDGE
ON THE ISSUE OF MENTAL ILLNESS.  SECS. 22-1209, 22-1216, 22-1217.  THE
INDIVIDUAL HAS A RIGHT TO APPEAL.  SEC. 22-1210.  AN INDIVIDUAL
ADJUDGED MENTALLY ILL UNDER THESE SECTIONS IS REMANDED TO THE
DEPARTMENT OF MENTAL HEALTH FOR ASSIGNMENT TO AN APPROPRIATE
INSTITUTION.  SEC. 22-1209.  DISCHARGE IS IN THE DISCRETION OF THE
SUPERINTENDENT OF THE PARTICULAR INSTITUTION TO WHICH THE PERSON IS
ASSIGNED, SEC. 22-1223; OFFICIAL OPINION NO. 54, OPINIONS OF THE
ATTORNEY GENERAL OF INDIANA, DEC. 30, 1966.  THE INDIVIDUAL, HOWEVER,
REMAINS WITHIN THE COURT'S CUSTODY, AND RELEASE CAN THEREFORE BE
REVOKED UPON A HEARING.  IBID.

        II

       EQUAL PROTECTION 

BECAUSE THE EVIDENCE ESTABLISHED LITTLE LIKELIHOOD OF IMPROVEMENT IN
PETITIONER'S CONDITION, HE ARGUES THAT COMMITMENT UNDER SEC. 9-1706A IN
HIS CASE AMOUNTED TO A COMMITMENT FOR LIFE.  THIS DEPRIVED HIM OF EQUAL
PROTECTION, HE CONTENDS, BECAUSE, ABSENT THE CRIMINAL CHARGES PENDING
AGAINST HIM, THE STATE WOULD HAVE HAD TO PROCEED UNDER OTHER STATUTES
GENERALLY APPLICABLE TO ALL OTHER CITIZENS:  EITHER THE COMMITMENT
PROCEDURES FOR FEEBLE-MINDED PERSONS, OR THOSE FOR MENTALLY ILL
PERSONS.  HE ARGUES THAT UNDER THESE OTHER STATUTES (1) THE DECISION
WHETHER TO COMMIT WOULD HAVE BEEN MADE ACCORDING TO A DIFFERENT
STANDARD, (2) IF COMMITMENT WERE WARRANTED, APPLICABLE STANDARDS FOR
RELEASE WOULD HAVE BEEN MORE LENIENT, (3) IF COMMITTED UNDER SEC. 22
1907, HE COULD HAVE BEEN ASSIGNED TO A SPECIAL INSTITUTION AFFORDING
APPROPRIATE CARE, AND (4) HE WOULD THEN HAVE BEEN ENTITLED TO CERTAIN
PRIVILEGES NOT NOW AVAILABLE TO HIM. 

IN BAXSTROM V. HEROLD, 383 U.S. 107 (1966), THE COURT HELD THAT A
STATE PRISONER CIVILLY COMMITTED AT THE END OF HIS PRISON SENTENCE ON
THE FINDING OF A SURROGATE WAS DENIED EQUAL PROTECTION WHEN HE WAS
DEPRIVED OF A JURY TRIAL THAT THE STATE MADE GENERALLY AVAILABLE TO ALL
OTHER PERSONS CIVILLY COMMITTED.  REJECTING THE STATE'S ARGUMENT THAT
BAXSTROM'S CONVICTION AND SENTENCE CONSTITUTED ADEQUATE JUSTIFICATION
FOR THE DIFFERENCE IN PROCEDURES, THE COURT SAID THAT "THERE IS NO
CONCEIVABLE BASIS FOR DISTINGUISHING THE COMMITMENT OF A PERSON WHO IS
NEARING THE END OF A PENAL TERM FROM ALL OTHER CIVIL COMMITMENTS."  383
U.S.,AT 111-112; SEE UNITED STATES EX REL. SCHUSTER V. HEROLD, 410
F.2D; 1071 (CA2), CERT. DENIED, 396 U.S. 847 (1969).  THE COURT ALSO
HELD THAT BAXSTROM WAS DENIED EQUAL PROTECTION BY COMMITMENT TO AN
INSTITUTION MAINTAINED BY THE STATE CORRECTIONS DEPARTMENT FOR
"DANGEROUSLY MENTALLY ILL" PERSONS, WITHOUT A JUDICIAL DETERMINATION OF
HIS "DANGEROUS PROPENSITIES" AFFORDED ALL OTHERS SO COMMITTED. 

IF CRIMINAL CONVICTION AND IMPOSITION OF SENTENCE ARE INSUFFICIENT
TO JUSTIFY LESS PROCEDURAL AND SUBSTANTIVE PROTECTION AGAINST
INDEFINITE COMMITMENT THAN THAT GENERALLY AVAILABLE TO ALL OTHERS, THE
MERE FILING OF CRIMINAL CHARGES SURELY CANNOT SUFFICE.  THIS WAS THE
PRECISE HOLDING OF THE MASSACHUSETTS COURT IN COMMONWEALTH V. DRUKEN,
356 MASS. 503, 507, 254 N.E.2D 779, 781 (1969).  /4/  THE BAXSTROM
PRINCIPLE ALSO HAS BEEN EXTENDED TO COMMITMENT FOLLOWING AN INSANITY
ACQUITTAL, BOLTON V. HARRIS, 130 U.S.APP.D.C. 1, 395 F.2D 642 (1968);
CAMERON V. MULLEN, 128 U.S.APP.D.C. 235, 387 F.2D 193 (1967); PEOPLE V.
LALLY, 19 N.Y.2D 27, 224, N.E.2D 87 (1966), AND TO COMMITMENT IN LIEU
OF SENTENCE FOLLOWING CONVICTION AS A SEX OFFENDER.  HUMPHREY V. CADY,
405 U.S. 504 (1972). 

RESPONDENT ARGUES, HOWEVER, THAT BECAUSE THE RECORD FAILS TO
ESTABLISH AFFIRMATIVELY THAT JACKSON WILL NEVER IMPROVE, HIS COMMITMENT
"UNTIL SANE" IS NOT REALLY AN INDETERMINATE ONE.  IT IS ONLY TEMPORARY,
PENDING POSSIBLE CHANGE IN HIS CONDITION.  THUS, PRESUMABLY, IT CANNOT
BE JUDGED AGAINST COMMITMENTS UNDER OTHER STATE STATUTES THAT ARE TRULY
INDETERMINATE.  THE RELIEF ON THE LACK OF "EXACTITUDE" WITH WHICH
PSYCHIATRY CAN PREDICT THE FUTURE COURSE OF MENTAL ILLNESS, AND ON THE
COURT'S DECISION IN WHAT IS CLAIMED TO BE "A FACT SITUATION SIMILAR TO
THE CASE AT HAND" IN GREENWOOD V. UNITED STATES, 350 U.S. 366 (1956). 

WHERE THE STATE'S FACTUAL PREMISE THAT JACKSON'S COMMITMENT IS ONLY
TEMPORARY A VALID ONE, THIS MIGHT BE A DIFFERENT CASE.  BUT THE RECORD
DOES NOT SUPPORT THAT PREMISE.  ON OF THE DOCTORS TESTIFIED THAT IN HIS
VIEW JACKSON WOULD BE UNABLE TO ACQUIRE THE SUBSTANTIALLY IMPROVED
COMMUNICATION SKILLS THAT WOULD BE NECESSARY FOR HIM TO PARTICIPATE IN
ANY DEFENSE.  THE PROGNOSIS FOR PETITIONER'S DEVELOPING SUCH SKILLS, HE
TESTIFIED, APPEARED "RATHER DIM."  IN ANSWER TO A QUESTION WHETHER
JACKSON WOULD EVER BE ABLE TO COMPREHEND THE CHARGES OR PARTICIPATE IN
HIS DEFENSE, EVEN AFTER COMMITMENT AND TREATMENT, THE DOCTOR SAID, "I
DOUBT IT, I DON'T BELIEVE SO."  THE OTHER PSYCHIATRIST TESTIFIED THAT
EVEN IF JACKSON WERE ABLE TO DEVELOP SUCH SKILLS, HE WOULD STILL BE
UNABLE TO COMPREHEND THE PROCEEDINGS OR AID COUNSEL DUE TO HIS MENTAL
DEFICIENCY.  THE INTERPRETER, A SUPERVISING TEACHER AT THE STATE SCHOOL
FOR THE DEAF, SAID THAT HE WOULD NOT BE ABLE TO SERVE AS AN INTERPRETER
FOR JACKSON OR AID HIM IN PARTICIPATING IN A TRIAL, AND THAT THE STATE
HAD NO FACILITIES THAT COULD, "AFTER A LENGTH OF TIME," AID JACKSON IN
SO PARTICIPATING.  THE COURT ALSO HEARD PETITIONER'S MOTHER TESTIFY
THAT JACKSON ALREADY HAD UNDERGONE RUDIMENTARY OUT-PATIENT TRAINING IN
COMMUNICATIONS SKILLS FROM THE DEAF AND DUMB SCHOOL IN INDIANAPOLIS
OVER A PERIOD OF THREE YEARS WITHOUT NOTICEABLE SUCCESS.  THERE IS
NOTHING IN THE RECORD THAT EVEN POINTS TO ANY POSSIBILITY THAT
JACKSON'S PRESENT CONDITION CAN BE REMEDIED AT ANY FUTURE TIME. 

NOR DOES GREENWOOD, /5/  WHICH CONCERNED THE CONSTITUTIONAL VALIDITY
OF 18 U.S.C. 4244 TO 4248, LEND SUPPORT TO RESPONDENT'S POSITION.  THAT
DECISION, ADDRESSING THE "NARROW CONSTITUTIONAL ISSUE RAISED BY THE
ORDER OF COMMITMENT IN THE CIRCUMSTANCES OF THIS CASE."  350 U.S.,AT
375, UPHELD THE FEDERAL GOVERNMENT'S CONSTITUTIONAL AUTHORITY TO COMMIT
AN INDIVIDUAL FOUND BY THE DISTRICT COURT TO BE "INSANE," INCOMPETENT
TO STAND TRIAL ON OUTSTANDING CRIMINAL CHARGES, AND PROBABLY DANGEROUS
TO THE SAFETY OF THE OFFICERS, PROPERTY, OR OTHER INTERESTS OF THE
UNITED STATES.  THE GREENWOOD COURT CONSTRUED THE FEDERAL STATUTES TO
DEAL "COMPREHENSIVELY" WITH DEFENDANTS "WHO ARE INSANE OR MENTALLY
INCOMPETENT TO STAND TRIAL," AND NOT MERELY WITH "THE PROBLEM OF
TEMPORARY MENTAL DISORDER."  350 U.S.,AT 373.  THOUGH GREENWOOD'S
PROSPECTS FOR IMPROVEMENT WERE SLIM, THE COURT HELD THAT "IN THE
SITUATION BEFORE US," WHERE THE DISTRICT COURT HAD MADE AN EXPLICIT
FINDING OF DANGEROUSNESS, THAT FACT ALONE "DOES NOT DEFEAT FEDERAL
POWER TO MAKE THIS INITIAL COMMITMENT."  350 U.S.,AT 375.  NO ISSUE OF
EQUAL PROTECTION WAS RAISED OR DECIDED.  SEE PETITIONER'S BRIEF, NO.
460 O.T. 1955, PP. 2, 7-9.  IT IS CLEAR THAT THE GOVERNMENT'S
SUBSTANTIVE POWER TO COMMIT ON THE PARTICULAR FINDINGS MADE IN THAT
CASE WAS THE SOLE QUESTION THERE DECIDED.  350 U.S.,AT 376. 

WE NOTE ALSO THAT NEITHER THE INDIANA STATUTE NOR STATE PRACTICE
MAKES THE LIKELIHOOD OF THE DEFENDANT'S IMPROVEMENT A RELEVANT FACTOR. 
THE STATE DID NOT SEEK TO MAKE ANY SUCH SHOWING, AND THE RECORD CLEARLY
ESTABLISHES THAT THE CHANCES OF JACKSON'S EVER MEETING THE COMPETENCY
STANDARDS OF SEC. 9-1706A ARE AT BEST MINIMAL, IF NOT NONEXISTENT.  THE
RECORD ALSO REBUTS ANY CONTENTION THAT THE COMMITMENT COULD CONTRIBUTE
TO JACKSON'S IMPROVEMENT.  JACKSON'S SEC. 9-1706A COMMITMENT IS
PERMANENT IN PRACTICAL EFFECT. 

WE THEREFORE MUST TURN TO THE QUESTION WHETHER, BECAUSE OF THE
PENDENCY OF THE CRIMINAL CHARGES THAT TRIGGERED THE STATE'S INVOCATION
OF SEC. 9-1706A, JACKSON WAS DEPRIVED OF SUBSTANTIAL RIGHTS TO WHICH HE
WOULD HAVE BEEN ENTITLED UNDER EITHER OF THE OTHER TWO STATE COMMITMENT
STATUTES.  BAXSTROM HELD THAT THE STATE CANNOT WITHHOLD FROM A FEW THE
PROCEDURAL PROTECTIONS OR THE SUBSTANTIVE REQUIREMENTS FOR COMMITMENT
THAT ARE AVAILABLE TO ALL OTHERS.  IN THIS CASE COMMITMENT PROCEDURES
UNDER ALL THREE STATUTES APPEAR SUBSTANTIALLY SIMILAR:  NOTICE,
EXAMINATION BY TWO DOCTORS, AND A FULL JUDICIAL HEARING AT WHICH THE
INDIVIDUAL IS REPRESENTED BY COUNSEL AND CAN CROSS-EXAMINE WITNESSES
AND INTRODUCE EVIDENCE.  UNDER EACH OF THE THREE STATUES, THE
COMMITMENT DETERMINATION IS MADE BY THE COURT ALONE, AND APPELLATE
REVIEW IS AVAILABLE. 

IN CONTRAST, HOWEVER, WHAT THE STATE MUST SHOW TO COMMIT A DEFENDANT
UNDER SEC. 9-1706A, AND THE CIRCUMSTANCES UNDER WHICH AN INDIVIDUAL SO
COMMITTED MAY BE RELEASED, ARE SUBSTANTIALLY DIFFERENT FROM THE
STANDARDS UNDER THE OTHER TWO STATUTES. 

UNDER SEC. 9-1706A, THE STATE NEEDED TO SHOW ONLY JACKSON'S
INABILITY TO STAND TRIAL.  WE ARE UNABLE TO SAY THAT, ON THE RECORD
BEFORE US, INDIANA COULD HAVE CIVILLY COMMITTED HIM AS MENTALLY ILL
UNDER SEC. 22-1209 OR COMMITTED HIM AS FEEBLE-MINDED UNDER SEC. 22
1907.  THE FORMER REQUIRES AT LEAST (1) A SHOWING OF MENTAL ILLNESS AND
(2) A SHOWING THAT THE INDIVIDUAL IS IN MEED OF "CARE, TREATMENT,
TRAINING OR DETENTION."  SEC. 22-1201 (1).  WHETHER JACKSON'S MENTAL
DEFICIENCY WOULD MEET THE FIRST TEST IS UNCLEAR; NEITHER EXAMINING
PHYSICIAN ADDRESSED HIMSELF TO THIS.  FURTHERMORE, IT IS PROBLEMATICAL
WHETHER COMMITMENT FOR "TREATMENT" OR "TRAINING" WOULD BE APPROPRIATE
SINCE THE RECORD ESTABLISHED THAT NONE IS AVAILABLE FOR JACKSON'S
CONDITION AT ANY STATE INSTITUTION.  THE RECORD ALSO FAILS TO ESTABLISH
THAT JACKSON IS IN NEED OF CUSTODIAL CARE OF "DETENTION."  HE HAS BEEN
EMPLOYED AT TIMES, AND THERE IS NO EVIDENCE THAT THE CARE HE LONG
RECEIVED AT HOME HAS BECOME INADEQUATE.  THE STATUTE APPEARS TO REQUIRE
AN INDEPENDENT SHOWING OF DANGEROUSNESS ("REQUIRES . . . DETENTION IN
THE INTEREST OF THE WELFARE OF SUCH PERSON OR . . . OTHERS . . . "). 
INSOFAR AS IT MAY REQUIRE SUCH A SHOWING, THE PENDING CRIMINAL CHARGES
ARE INSUFFICIENT TO ESTABLISH IT, AND NO OTHER SUPPORTING EVIDENCE WAS
INTRODUCED.  FOR THE SAME REASONS, WE CANNOT SAY THAT THIS RECORD WOULD
SUPPORT A FEEBLE-MINDEDNESS COMMITMENT UNDER SEC. 22-1907 ON THE GROUND
THAT JACKSON IS "UNABLE PROPERLY TO CARE FOR (HIMSELF)."  /6/  SEC. 22
1801. 

MORE IMPORTANT, AN INDIVIDUAL COMMITED AS FEEBLE-MINDED IS ELIGIBLE
FOR RELEASE WHEN HIS CONDITION "JUSTIFIED IT," SEC. 22-1814, AND AN
INDIVIDUAL CIVILLY COMMITTED AS MENTALLY ILL WHEN THE "SUPERINTENDENT
OR ADMINISTRATOR SHALL DISCHARGE SUCH PERSON, OR (WHEN) CURED OF SUCH
ILLNESS."  SEC. 22-1223.  THUS, IN EITHER CASE RELEASE IS APPROPRIATE
WHEN THE INDIVIDUAL NO LONGER REQUIRES THE CUSTODIAL CARE OR TREATMENT
OR DETENTION THAT OCCASIONED THE COMMITMENT, OR WHEN THE DEPARTMENT OF
MENTAL HEALTH BELIEVES RELEASE WOULD BE IN HIS BEST INTERESTS.  THE
EVIDENCE AVAILABLE CONCERNING JACKSON'S PAST EMPLOYMENT AND HOME CARE
STRONGLY SUGGESTS THAT UNDER THESE STANDARDS HE MIGHT BE ELIGIBLE FOR
RELEASE AT ALMOST ANY TIME, EVEN IF HE DID NOT IMPROVE.  /7/  ON THE
OTHER HAND, BY THE TERMS OF HIS PRESENT SEC. 9-1706A COMMITMENT, HE
WILL NOT BE ENTITLED TO RELEASE AT ALL, ABSENT AN UNLIKELY SUBSTANTIAL
CHANGE FOR THE BETTER IN HIS CONDITION.  /8/ 

BAXSTROM DID NOT DEAL WITH THE STANDARD FOR RELEASE, BUT ITS
RATIONALE IS APPLICABLE HERE.  THE HARM TO THE INDIVIDUAL IS JUST AS
GREAT IF THE STATE, WITHOUT REASONABLE JUSTIFICATION, CAN APPLY
STANDARDS MAKING HIS COMMITMENT A PERMANENT ONE WHEN STANDARDS
GENERALLY APPLICABLE TO ALL OTHERS AFFORD HIM A SUBSTANTIAL OPPORTUNITY
FOR EARLY RELEASE. 

AS WE NOTED ABOVE, WE CANNOT CONCLUDE THAT PENDING CRIMINAL CHARGES
PROVIDE A GREATER JUSTIFICATION FOR DIFFERENT TREATMENT THAN CONVICTION
AND SENTENCE.  CONSEQUENTLY, WE HOLD THAT BY SUBJECTING JACKSON TO A
MORE LENIENT COMMITMENT STANDARD AND TO A MORE STRINGENT STANDARD OF
RELEASE THAN THOSE GENERALLY APPLICABLE TO ALL OTHERS NOT CHARGED WITH
OFFENSES, AND BY THUS CONDEMNING HIM IN EFFECT TO PERMANENT
INSTITUTIONALIZATION WITHOUT THE SHOWING REQUIRED FOR COMMITMENT OR THE
OPPORTUNITY FOR RELEASE AFFORDED BY SEC. 22-1209 OR SEC. 22-1907,
INDIANA DEPRIVED PETITIONER OF EQUAL PROTECTION OF THE LAWS UNDER THE
FOURTEENTH AMENDMENT.  /9/

        III

        DUE PROCESS 

FOR REASONS CLOSELY RELATED TO THOSE DISCUSSED IN PART II ABOVE, WE
ALSO HOLD THAT INDIANA'S INDEFINITE COMMITMENT OF A CRIMINAL DEFENDANT
SOLELY ON ACCOUNT OF HIS INCOMPETENCY TO STAND TRIAL DOES NOT SQUARE
WITH THE FOURTEENTH AMENDMENT'S GUARANTEE OF DUE PROCESS. 

A. THE FEDERAL SYSTEM.  IN THE FEDERAL CRIMINAL SYSTEM, THE
CONSTITUTIONAL ISSUE POSED HERE HAS NOT BEEN ENCOUNTERED PRECISELY
BECAUSE THE FEDERAL STATUTES HAVE BEEN CONSTRUED TO REQUIRE THAT A
MENTALLY INCOMPETENT DEFENDANT MUST ALSO BE FOUND "DANGEROUS" BEFORE HE
CAN BE COMMITTED INDEFINITELY.  BUT THE DECISIONS HAVE UNIFORMLY
ARTICULATED THE CONSTITUTIONAL PROBLEMS COMPELLING THIS STATUTORY
INTERPRETATION. 

THE FEDERAL STATUTE, 18 U.S.C. 4244 TO 4246, IS NOT DISSIMILAR TO
THE INDIANA LAW.  IT PROVIDES THAT A DEFENDANT FOUND INCOMPETENT TO
STAND TRIAL MAY BE COMMITTED "UNTIL THE ACCUSED SHALL BE MENTALLY
COMPETENT TO STAND TRIAL OR UNTIL THE PENDING CHARGES AGAINST HIM ARE
DISPOSED OF ACCORDING TO LAW."  SEC. 4246.  SECTION 4247, APPLICABLE ON
ITS FACE ONLY TO CONVICTED CRIMINALS WHOSE FEDERAL SENTENCES ARE ABOUT
TO EXPIRE, PERMITS COMMITMENT IF THE PRISONER IS (1) "INSANE OR
MENTALLY INCOMPETENT" AND (2) "WILL PROBABLY ENDANGER THE SAFETY OF THE
OFFICERS, THE PROPERTY, OR OTHER INTERESTS OF THE UNITED STATES, AND .
. . SUITABLE ARRANGEMENT FOR THE CUSTODY AND CARE OF THE PRISONER ARE
NOT OTHERWISE AVAILABLE," THAT IS, IN A STATE FACILITY.  SEE GREENWOOD
V. UNITED STATES, 350 U.S.,AT 373-374.  ONE COMMITTED UNDER THIS
CONDITIONS NO LONGER OBTAINS, "WHICHEVER EVENT SHALL FIRST OCCUR." 
SEC. 4248.  THUS, A PERSON COMMITTED UNDER SEC. 4247 MUST BE RELEASED
WHEN HE NO LONGER IS "DANGEROUS." 

IN GREENWOOD, THE COURT UPHELD THE PRETRIAL COMMITMENT OF A
DEFENDANT WHO MET ALL THREE CONDITIONS OF SEC. 4247, EVEN THOUGH THERE
WAS LITTLE LIKELIHOOD THAT HE WOULD EVER BECOME COMPETENT TO STAND
TRIAL.  SINCE GREENWOOD HAD NOT YET STOOD TRIAL, HIS COMMITMENT WAS
OSTENSIBLY UNDER SEC. 4244.  BY THE RELATED RELEASE PROVISION, SEC.
4246, HE COULD NOT HAVE BEEN RELEASED UNTIL HE BECAME COMPETENT.  BUT
THE DISTRICT COURT HAD IN FACT APPLIED SEC. 4247, AND FOUND
SPECIFICALLY THAT GREENWOOD WOULD BE DANGEROUS IF NOT COMMITTED.  THIS
COURT APPROVED THAT APPROACH, HOLDING SEC. 4247 APPLICABLE BEFORE TRIAL
AS WELL AS TO THOSE ABOUT TO BE RELEASED FROM SENTENCE.  350 U.S.,AT
374.  ACCORDINGLY, GREENWOOD WAS ENTITLED TO RELEASE WHEN NO LONGER
DANGEROUS, SEC. 4248, EVEN IF HE DID NOT BECOME COMPETENT TO STAND
TRIAL AND THUS DID NOT MEET THE REQUIREMENT OF SEC. 4246.  UNDER THESE
CIRCUMSTANCES, THE COURT FOUND THE COMMITMENT CONSTITUTIONAL. 

SINCE GREENWOOD, FEDERAL COURTS WITHOUT EXCEPTION HAVE FOUND
IMPROPER ANY STRAIGHTFORWARD APPLICATION OF SECS. 4244 AND 4246 TO A
DEFENDANT WHOSE CHANCE OF ATTAINING COMPETENCY TO STAND TRIAL IS SLIM,
THUS EFFECTING AN INDEFINITE COMMITMENT ON THE GROUND OF INCOMPETENCY
ALONE.  UNITED STATES V. CURRY, 410 F.2D 1372 (CA4 1969); UNITED STATES
V. WALKER, 335 F.SUPP.  705 (ND CAL. 1971); COOK V. CICCONE, 312
F.SUPP.  822 (WD MO. 1970); UNITED STATES V. JACKSON, 307 F.SUPP.  4
(ND CAL. 1969); MAURIETTA V. CICCONE, 305 F.SUPP.  775 (WD MO. 1969). 
SEE IN RE HARMON, 425 F.2D 916 (CA1 1970); UNITED STATES V. KLEIN, 325
F.2D 283 (CA2 1963); MARTIN V. SETTLE, 192 F.SUPP.  156 (WD MO. 1961);
ROYAL V. SETTLE, 192 F.SUPP.  176 (WD MO. 1959).  THE HOLDING IN EACH
OF THESE CASES WAS GROUNDED IN AN EXPRESSED SUBSTANTIAL DOUBT THAT
SECS. 4244 AND 4246 COULD SURVIVE CONSTITUTIONAL SCRUTINY IF
INTERPRETED TO AUTHORIZE INDEFINITE COMMITMENT. 

THESE DECISIONS HAVE IMPOSED A "RULE OF REASONABLENESS" UPON SECS.
4244 AND 4246.  WITHOUT A FINDING OF DANGEROUSNESS, ONE COMMITTED
THEREUNDER CAN BE HELD ONLY FOR A "REASONABLE PERIOD OF TIME" NECESSARY
TO DETERMINE WHETHER THERE IS A SUBSTANTIAL CHANCE OF HIS ATTAINING THE
CAPACITY TO STAND TRIAL IN THE FORESEEABLE FUTURE.  IF THE CHANCES ARE
SLIGHT, OR IF THE DEFENDANT DOES NOT IN FACT IMPROVE, THEN HE MUST BE
RELEASED OR GRANTED A SECS. 4247-4248 HEARING. 

B. THE STATES.  SOME STATES /10/  APPEAR TO COMMIT INDEFINITELY A
DEFENDANT FOUND INCOMPETENT TO STAND TRIAL UNTIL HE RECOVERS
COMPETENCY.  OTHER STATES REQUIRE A FINDING OF DANGEROUSNESS TO SUPPORT
SUCH A COMMITMENT /11/  OR PROVIDE FORMS OF PAROLE.  /12/  NEW YORK HAS
RECENTLY ENACTED LEGISLATION MANDATING RELEASE OF INCOMPETENT
DEFENDANTS CHARGED WITH MISDEMEANORS AFTER 90 DAYS OF COMMITMENT, AND
RELEASE AND DISMISSAL OF CHARGES AGAINST THOSE ACCUSED OF FELONIES
AFTER THEY HAVE BEEN COMMITTED FOR TWO-THIRDS OF THE MAXIMUM POTENTIAL
PRISON SENTENCE.  /13/  THE PRACTICE OF AUTOMATIC COMMITMENT WITH
RELEASE CONDITIONED SOLELY UPON ATTAINMENT OF COMPETENCE HAS BEEN
DECRIED ON BOTH POLICY AND CONSTITUTIONAL GROUNDS.  /14/
RECOMMENDATIONS FOR CHANGES MADE BY COMMENTATORS AND STUDY COMMITTEES
HAVE INCLUDED INCORPORATION INTO PRETRIAL COMMITMENT PROCEDURES OF THE
EQUIVALENT OF THE FEDERAL "RULE OF REASON," A REQUIREMENT OF A FINDING
OF DANGEROUSNESS OR OF FULL-SCALE CIVIL COMMITMENT, PERIODIC REVIEW BY
COURT OR MENTAL HEALTH ADMINISTRATIVE PERSONNEL OF THE DEFENDANT'S
CONDITION AND PROGRESS, AND PROVISIONS FOR ULTIMATELY DROPPING CHARGES
IF THE DEFENDANT DOES NOT IMPROVE.  /15/  ONE SOURCE OF THIS CRITICISM
IS UNDOUBTEDLY THE EMPIRICAL DATA AVAILABLE WHICH TEND TO SHOW THAT
MANY DEFENDANTS COMMITTED BEFORE TRIAL ARE NEVER TRIED, AND THAT THOSE
DEFENDANTS COMMITTED PURSUANT TO ORDINARY CIVIL PROCEEDINGS ARE, ON THE
AVERAGE, RELEASED SOONER THAN DEFENDANTS AUTOMATICALLY COMMITTED SOLELY
ON ACCOUNT OF THEIR INCAPACITY TO STAND TRIAL.  /16/  RELATED TO THESE
STATISTICS ARE SUBSTANTIAL DOUBTS ABOUT WHETHER THE RATIONAL FOR
PRETRIAL COMMITMENT-- THAT CARE OF TREATMENT WILL AID THE ACCUSED IN
ATTAINING COMPETENCY-- IS EMPIRICALLY VALID GIVEN THE STATE OF MOST OF
OUR MENTAL INSTITUTIONS.  /17/  HOWEVER, VERY FEW COURTS APPEAR TO HAVE
ADDRESSED THE PROBLEM DIRECTLY IN THE STATE CONTEXT. 

IN UNITED STATES EX REL. WOLFERSDORF V. JOHNSTON, 317 F.SUPP.  66
(SDNY 1970), AN 86-YEAR-OLD DEFENDANT COMMITTED FOR NEARLY 20 YEARS AS
INCOMPETENT TO STAND TRIAL ON STATE MURDER AND KIDNAPING CHARGES
APPLIED FOR FEDERAL HABEAS CORPUS.  HE HAD BEEN FOUND "NOT DANGEROUS,"
AND SUITABLE FOR CIVIL COMMITMENT.  THE DISTRICT COURT GRANTED RELIEF. 
IT HELD THAT PETITIONER'S INCARCERATION IN AN INSTITUTION FOR THE
CRIMINALLY INSANE CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT, AND THAT
THE "SHOCKING CIRCUMSTANCES" OF HIS COMMITMENT VIOLATED THE DUE PROCESS
CLAUSE.  THE COURT QUOTED APPROVINGLY THE LANGUAGE OF COOK V. CICCONE,
312 F.SUPP.,AT 824, CONCERNING THE "SUBSTANTIAL INJUSTICE IN KEEPING AN
UNCONVICTED PERSON IN . . . CUSTODY TO AWAIT TRIAL WHERE IT IS PLAINLY
EVIDENT HIS MENTAL CONDITION WILL NOT PERMIT TRIAL WITHIN A REASONABLE
PERIOD OF TIME."     IN A 1970 CASE VIRTUALLY INDISTINGUISHABLE FROM
THE ONE BEFORE US, THE ILLINOIS SUPREME COURT GRANTED RELIEF TO AN
ILLITERATE DEAF MUTE WHO HAD BEEN INDICTED FOR MURDER FOUR YEARS
PREVIOUSLY BUT FOUND INCOMPETENT TO STAND TRIAL ON ACCOUNT OF HIS
INABILITY TO COMMUNICATE, AND COMMITTED.  PEOPLE EX REL. MYERS V.
BRIGGS, 46 ILL.2D 281, 263 N.E.2D 109 (1970).  THE INSTITUTION WHERE
PETITIONER WAS CONFINED HAD DETERMINED, "(IT NOW APPEARS THAT
(PETITIONER) WILL NEVER ACQUIRE THE NECESSARY COMMUNICATION SKILLS
NEEDED TO PARTICIPATE AND COOPERATE IN HIS TRIAL."  PETITIONER,
HOWEVER, WAS FOUND TO BE FUNCTION AT A "NEARLY NORMAL LEVEL OF
PERFORMANCE IN AREAS OTHER THAN COMMUNICATION."  THE STATE CONTENDED
PETITIONER SHOULD NOT BE RELEASED UNTIL HIS COMPETENCY WAS RESTORED. 
THE ILLINOIS SUPREME COURT DISAGREED.  IT HELD: 

     "THIS COURT IS OF THE OPINION THAT THIS DEFENDANT, HANDICAPPED

  AS HE IS AND FACING AN INDEFINITE COMMITMENT BECAUSE OF THE

  PENDING INDICTMENT AGAINST HIM, SHOULD BE GIVEN AN OPPORTUNITY TO

  OBTAIN A TRIAL TO DETERMINE WHETHER OR NOT HE IS GUILTY AS

  CHARGED OR SHOULD BE RELEASED."  ID., AT 288, 263 N.E.2D, AT

  113. 

C. THIS CASE, RESPONDENT RELIES HEAVILY ON GREENWOOD TO SUPPORT
JACKSON'S COMMITMENT.  THAT DECISION IS DISTINGUISHABLE.  IT UPHELD
ONLY THE INITIAL COMMITMENT WITHOUT CONSIDERING DIRECTLY ITS DURATION
OR THE STANDARDS FOR RELEASE.  IT JUSTIFIED THE COMMITMENT BY TREATING
IT AS IF ACCOMPLISHED UNDER ALLIED STATUTORY PROVISIONS RELATING
DIRECTLY TO THE INDIVIDUAL'S "INSANITY" AND SOCIETY'S INTEREST IN HIS
INDEFINITE COMMITMENT, FACTORS NOT CONSIDERED IN JACKSON'S CASE.  AND
IT SUSTAINED COMMITMENT ONLY UPON THE FINDING OF DANGEROUSNESS.  AS
PART A, SUPRA, SHOWS, ALL THESE ELEMENTS SUBSEQUENTLY HAVE BEEN HELD
NOT SIMPLY SUFFICIENT, BUT NECESSARY, TO SUSTAIN A COMMITMENT LIKE THE
ONE INVOLVED HERE. 

THE STATES HAVE TRADITIONALLY EXERCISED BROAD POWER TO COMMIT
PERSONS FOUND TO BE MENTALLY ILL.  /18/  THE SUBSTANTIVE LIMITATIONS ON
THE EXERCISE OF THIS POWER AND THE PROCEDURES FOR INVOKING IT VARY
DRASTICALLY AMONG THE STATES.  /19/  THE PARTICULAR FASHION IN WHICH
THE POWER IS EXERCISED-- FOR INSTANCE, THROUGH VARIOUS FORMS OF CIVIL
COMMITMENT, DEFECTIVE DELINQUENCY LAWS, SEXUAL PSYCHOPATH LAWS,
COMMITMENT OF PERSONS ACQUITTED BY REASON OF INSANITY-- REFLECTS
DIFFERENT COMBINATIONS OF DISTINCT BASES FOR COMMITMENT SOUGHT TO BE
VINDICATED.  /20/  THE BASES THAT HAVE BEEN ARTICULATED INCLUDE
DANGEROUSNESS TO SELF, DANGEROUSNESS TO OTHERS, AND THE NEED FOR CARE
OR TREATMENT TRAINING.  /21/  CONSIDERING THE NUMBER OF PERSONS
AFFECTED, /22/  IT IS PERHAPS REMARKABLE THAT THE SUBSTANTIVE
CONSTITUTIONAL LIMITATIONS ON THIS POWER HAVE NOT BEEN MORE FREQUENTLY
LITIGATED.  /23/ 

WE NEED NOT ADDRESS THESE BROAD QUESTIONS HERE.  IT IS CLEAR THAT
JACKSON'S COMMITMENT RESTS ON PROCEEDINGS THAT DID NOT PURPORT TO BRING
INTO PLAY, INDEED DID NOT EVEN CONSIDER RELEVANT, ANY OF THE
ARTICULATED BASES FOR EXERCISE OF INDIANA'S POWER OF INDEFINITE
COMMITMENT.  THE STATE STATUTES CONTAIN AT LEAST TWO ALTERNATIVE
METHODS FOR INVOKING THIS POWER.  BUT JACKSON WAS NOT AFFORDED ANY
"FORMAL COMMITMENT PROCEEDINGS ADDRESSED TO (HIS) ABILITY TO FUNCTION
IN SOCIETY,"  /24/  OR TO SOCIETY'S INTEREST IN HIS RESTRAINT, OR TO
THE STATE'S ABILITY TO AID HIM IN ATTAINING COMPETENCY THROUGH
CUSTODIAL CARE OR COMPULSORY TREATMENT, THE OSTENSIBLE PURPOSE OF THE
COMMITMENT.  AT THE LEAST, DUE PROCESS REQUIRES THAT THE NATURE AND
DURATION OF COMMITMENT BEAR SOME REASONABLE RELATION TO THE PURPOSE FOR
WHICH THE INDIVIDUAL IS COMMITTED. 

WE HOLD, CONSEQUENTLY, THAT A PERSON CHARGED BY A STATE WITH A
CRIMINAL OFFENSE WHO IS COMMITTED SOLELY ON ACCOUNT OF HIS INCAPACITY
TO PROCEED TO TRIAL CANNOT BE HELD MORE THAN THE REASONABLE PERIOD OF
TIME NECESSARY TO DETERMINE WHETHER THERE IS A SUBSTANTIAL PROBABILITY
THAT HE WILL ATTAIN THAT CAPACITY IN THE FORESEEABLE FUTURE.  IF IT IS
DETERMINED THAT THIS IS NOT THE CASE, THEN THE STATE MUST EITHER
INSTITUTE THE CUSTOMARY CIVIL COMMITMENT PROCEEDING THAT WOULD BE
REQUIRED TO COMMIT INDEFINITELY ANY OTHER CITIZEN, OR RELEASE THE
DEFENDANT.  /25/  FURTHERMORE, EVEN IF IT IS DETERMINED THAT THE
DEFENDANT PROBABLY SOON WILL BE ABLE TO STAND TRIAL, HIS CONTINUED
COMMITMENT MUST BE JUSTIFIED BY PROGRESS TOWARD THAT GOAL.  IN LIGHT OF
DIFFERING STATE FACILITIES AND PROCEDURES AND A LACK OF EVIDENCE IN
THIS RECORD, WE DO NOT THINK IT APPROPRIATE FOR US TO ATTEMPT TO
PRESCRIBE ARBITRARY TIME LIMITS.  WE NOTE, HOWEVER, THAT PETITIONER
JACKSON HAS NOW BEEN CONFINED FOR THREE AND ONE-HALF YEARS ON A RECORD
THAT SUFFICIENTLY ESTABLISHED THE LACK OF SUBSTANTIAL PROBABILITY THAT
HE WILL EVER BE ABLE TO PARTICIPATE FULLY IN A TRIAL. 

THESE CONCLUSIONS MAKE IT UNNECESSARY FOR US TO REACH PETITIONER'S
EIGHTH-FOURTEENTH AMENDMENT CLAIM. 

        IV

   DISPOSITION OF THE CHARGES 

PETITIONER ALSO URGES THAT FUNDAMENTAL FAIRNESS REQUIRES THAT THE
CHARGES AGAINST HIM NOW BE DISMISSED.  THE THRUST OF HIS ARGUMENT IS
THAT THE RECORD AMPLY ESTABLISHED HIS LACK OF CRIMINAL RESPONSIBILITY
AT THE TIME THE CRIMES ARE ALLEGED TO HAVE BEEN COMMITTED.  THE INDIANA
COURT DID NOT DISCUSS THIS QUESTION.  APPARENTLY IT BELIEVED THAT BY
REASON OF JACKSON'S INCOMPETENCY COMMITMENT THE STATE WAS ENTITLED TO
HOLD THE CHARGES PENDING INDEFINITELY.  ON THIS RECORD, JACKSON'S CLAIM
IS A SUBSTANTIAL ONE.  FOR A NUMBER OF REASONS, HOWEVER, WE BELIEVE THE
ISSUE IS NOT SUFFICIENTLY RIPE FOR ULTIMATE DECISION BY US AT THIS
TIME. 

A. PETITIONER ARGUES THAT HE HAS ALREADY MADE OUT A COMPLETE
INSANITY DEFENSE.  JACKSON'S CRIMINAL RESPONSIBILITY AT THE TIME OF THE
ALLEGED OFFENSES, HOWEVER, IS A DISTINCT ISSUE FROM HIS COMPETENCY TO
STAND TRIAL.  THE COMPETENCY HEARING BELOW WAS NOT DIRECTED TO CRIMINAL
RESPONSIBILITY, AND EVIDENCE RELEVANT TO IT WAS PRESENTED ONLY
INCIDENTALLY.  /26/  THUS, IN ANY EVENT, WE WOULD HAVE TO REMAND FOR
FURTHER CONSIDERATION OF JACKSON'S CONDITION IN THE LIGHT OF INDIANA'S
LAW OF CRIMINAL RESPONSIBILITY. 

B. DISMISSAL OF CHARGES AGAINST AN INCOMPETENT ACCUSED HAS USUALLY
BEEN THOUGHT TO BE JUSTIFIED ON GROUNDS NOT SQUARELY PRESENTED HERE:
PARTICULARLY, THE SIXTH-FOURTEENTH AMENDMENT RIGHT TO A SPEEDY TRIAL,
/27/  OR THE DENIAL OF DUE PROCESS INHERENT IN HOLDING PENDING CRIMINAL
CHARGES INDEFINITELY OVER THE HEAD OF ONE WHO WILL NEVER HAVE A CHANCE
TO PROVE HIS INNOCENCE.  /28/  JACKSON DID NOT PRESENT THE SIXTH
FOURTEENTH AMENDMENT ISSUE TO THE STATE COURTS.  NOR DID THE HIGHEST
STATE COURT RULE ON THE DUE PROCESS ISSUE, IF INDEED IT WAS PRESENTED
TO THAT COURT IN PRECISELY THE ABOVE-DESCRIBED FORM.  WE THINK, IN
LIGHT OF OUR HOLDINGS IN PARTS II AND III, THAT THE INDIANA COURTS
SHOULD HAVE THE FIRST OPPORTUNITY TO DETERMINE THESE ISSUES. 

C. BOTH COURTS AND COMMENTATORS HAVE NOTED THE DESIRABILITY OF
PERMITTING SOME PROCEEDINGS TO GO FORWARD DESPITE THE DEFENDANT'S
INCOMPETENCY.  /29/  FOR INSTANCE, SEC. 4.06(3) OF THE MODEL PENAL CODE
WOULD PERMIT AN INCOMPETENT ACCUSED'S ATTORNEY TO CONTEST ANY ISSUE
"SUSCEPTIBLE OF FAIR DETERMINATION PRIOR TO TRIAL AND WITHOUT THE
PERSONAL PARTICIPATION OF THE DEFENDANT."  AN ALTERNATIVE DRAFT OF SEC.
4.06(4) OF THE MODEL PENAL CODE WOULD ALSO PERMIT AN EVIDENTIARY
HEARING AT WHICH CERTAIN DEFENSES, NOT INCLUDING LACK OF CRIMINAL
RESPONSIBILITY, COULD BE RAISED BY DEFENSE COUNSEL ON THE BASIS OF
WHICH THE COURT MIGHT QUASH THE INDICTMENT.  SOME STATES HAVE STATUTORY
PROVISIONS PERMITTING PRETRIAL MOTIONS TO BE MADE OR EVEN ALLOWING THE
INCOMPETENT DEFENDANT A TRIAL AT WHICH TO ESTABLISH HIS INNOCENCE,
WITHOUT PERMITTING A CONVICTION.  /30/  WE DO NOT READ THIS COURT'S
PREVIOUS DECISIONS /31/  TO PRECLUDE THE STATES FROM ALLOWING, AT A
MINIMUM, AN INCOMPETENT DEFENDANT TO RAISE CERTAIN DEFENSES SUCH AS
INSUFFICIENCY OF THE INDICTMENT, OR MAKE CERTAIN PRETRIAL MOTIONS
THROUGH COUNSEL.  OF COURSE, IF THE INDIANA COURTS CONCLUDE THAT
JACKSON WAS ALMOST CERTAINLY NOT CAPABLE OF CRIMINAL RESPONSIBILITY
WHEN THE OFFENSES WERE COMMITTED, DISMISSAL OF THE CHARGES MIGHT BE
WARRANTED.  BUT EVEN IF THIS IS NOT THE CASE, JACKSON MAY HAVE OTHER
GOOD DEFENSES THAT COULD SUSTAIN DISMISSAL OR ACQUITTAL AND THAT MIGHT
NOW BE ASSERTED.  WE DO NOT KNOW IF INDIANA WOULD APPROVE PROCEDURES
SUCH AS THOSE MENTIONED HERE, BUT THESE POSSIBILITIES WILL BE OPEN ON
REMAND. 

REVERSED AND REMANDED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  "9-1706A.  COMMITMENT BEFORE TRIAL-- SUBSEQUENT ACTIONS.-- WHEN
AT ANY TIME BEFORE THE TRIAL OF ANY CRIMINAL CAUSE OR DURING THE
PROGRESS THEREOF AND BEFORE THE FINAL SUBMISSION OF THE CAUSE TO THE
COURT OR JURY TRYING THE SAME, THE COURT, EITHER FROM HIS OWN KNOWLEDGE
OR UPON THE SUGGESTION OF ANY PERSON, HAS REASONABLE GROUND FOR
BELIEVING THE DEFENDANT TO BE INSANE, HE SHALL IMMEDIATELY FIX A TIME
FOR A HEARING TO DETERMINE THE QUESTION OF THE DEFENDANT'S SANITY AND
SHALL APPOINT TWO (2) COMPETENT DISINTERESTED PHYSICIANS WHO SHALL
EXAMINE THE DEFENDANT UPON THE QUESTION OF HIS SANITY AND TESTIFY
CONCERNING THE SAME AT THE HEARING.  AT THE HEARING, OTHER EVIDENCE MAY
BE INTRODUCED TO PROVE THE DEFENDANT'S SANITY OR INSANITY.  IF THE
COURT SHALL FIND THAT THE DEFENDANT HAS COMPREHENSION SUFFICIENT TO
UNDERSTAND THE NATURE OF THE CRIMINAL ACTION AGAINST HIM AND THE
PROCEEDINGS THEREON AND TO MAKE HIS DEFENSE, THE TRIAL SHALL NOT BE
DELAYED OR CONTINUED ON THE GROUND OF THE ALLEGED INSANITY OF THE
DEFENDANT.  IF THE COURT SHALL FIND THAT THE DEFENDANT HAS NOT
COMPREHENSION SUFFICIENT TO UNDERSTAND THE NATURE OF THE CRIMINAL
ACTION AGAINST HIM AND THE PROCEEDINGS THEREON AND TO MAKE HIS DEFENSE,
THE TRIAL SHALL NOT BE DELAYED OR CONTINUED ON THE GROUND OF THE
ALLEGED INSANITY OF THE DEFENDANT.  IF THE COURT SHALL FIND THAT THE
DEFENDANT HAS NOT COMPREHENSION SUFFICIENT TO UNDERSTAND THE
PROCEEDINGS AND MAKE HIS DEFENSE, THE TRIAL SHALL BE DELAYED OR
CONTINUED ON THE GROUND OF THE ALLEGED INSANITY OF THE DEFENDANT.  IF
THE COURT SHALL FIND THAT THE DEFENDANT HAS NOT COMPREHENSION
SUFFICIENT TO UNDERSTAND THE PROCEEDINGS AND MAKE HIS DEFENSE, THE
COURT SHALL ORDER THE DEFENDANT COMMITTED TO THE DEPARTMENT OF MENTAL
HEALTH, TO BE CONFINED BY THE DEPARTMENT IN AN APPROPRIATE PSYCHIATRIC
INSTITUTION.  WHENEVER PSYCHIATRIC HOSPITAL SHALL CERTIFY THE FACT TO
THE PROPER COURT, WHO SHALL ENTER AN ORDER ON HIS RECORD DIRECTING THE
SHERIFF TO RETURN THE DEFENDANT, OR THE COURT MAY ENTER SUCH ORDER IN
THE FIRST INSTANCE WHENEVER HE SHALL BE SUFFICIENTLY ADVISED OF THE
DEFENDANT'S RESTORATION TO SANITY.  UPON THE RETURN TO COURT OF ANY
DEFENDANT SO COMMITTED HE OR SHE SHALL THEN BE PLACED UPON TRIAL FROM
THE CRIMINAL OFFENSE THE SAME AS IF NO DELAY OR POSTPONEMENT HAD
OCCURRED BY REASON OF DEFENDANT'S INSANITY." 

/2/  THE SECTION REFERS AT SEVERAL POINTS TO THE DEFENDANT'S
"SANITY."  THIS TERM IS NOWHERE DEFINED.  IN CONTEXT, AND IN THE
ABSENCE OF A CONTRARY STATUTORY CONSTRUCTION BY THE STATE COURTS, IT
APPEARS THAT THE TERM IS INTENDED TO BE SYNONYMOUS WITH COMPETENCE TO
STAND TRIAL. 

/3/  SECTIONS 22-1801 AND 22-1907 WOULD APPEAR TO BE
INTERDEPENDENT.  SEE OFFICIAL OPINION NO. 49, OPINIONS OF THE ATTORNEY
GENERAL OF INDIANA, SEPT. 26, 1958. 

/4/  SEE ALSO ASSOCIATION OF THE BAR, CITY OF NEW YORK, SPECIAL
COMMITTEE ON THE STUDY OF COMMITMENT PROCEDURES AND THE LAW RELATING TO
INCOMPETENTS, SECOND REPORT, MENTAL ILLNESS, DUE PROCESS AND THE
CRIMINAL DEFENDANT 1 (1968) (HEREAFTER N.Y. REPORT): 

"THE BASIC AND UNIFYING THREAD WHICH RUNS THROUGHOUT OUR
RECOMMENDATIONS IS A REJECTION OF THE NOTION THAT THE MERE FACT OF A
CRIMINAL CHARGE OR CONVICTION IS A PROPER BASIS UPON WHICH TO BUILD
OTHER UNNECESSARY, UNPROFITABLE, AND ESSENTIALLY UNFAIR DISTINCTIONS
AMONG THE MENTALLY ILL." 

/5/  THIS CASE IS FURTHER DISCUSSED IN CONNECTION WITH THE DUE
PROCESS CLAIM.  SEE PART III. 

/6/  PERHAPS SOME CONFUSION ON THIS POINT IS ENGENDERED BY THE FACT
THAT JACKSON'S COUNSEL, FAR FROM ASSERTING THAT THE STATE COULD NOT
COMMIT HIM AS FEEBLE-MINDED UNDER SEC. 22-1907, ACTIVELY SOUGHT SUCH A
COMMITMENT IN THE HOPE THAT JACKSON WOULD BE ASSURED ASSIGNMENT TO A
SPECIAL INSTITUTION.  THE INDIANA SUPREME COURT THOUGHT THIS CONCERN
UNNECESSARY.  IN ANY EVENT, WE DO NOT SUGGEST THAT A FEEBLE-MINDEDNESS
COMMITMENT WOULD BE INAPPROPRIATE.  WE NOTE ONLY THAT THERE IS NOTHING
IN THIS RECORD TO ESTABLISH THE NEED FOR CUSTODIAL CARE THAT SUCH A
COMMITMENT SEEMS TO REQUIRE UNDER SECS. 22-1907 AND 22-1801. 

/7/  SEE PRESIDENT'S COMMITTEE ON MENTAL RETARDATION, CHANGING
PATTERNS IN RESIDENTIAL SERVICES FOR THE MENTALLY RETARDED (1969). 

/8/  RESPONDENT ARGUES THAT JACKSON WOULD NOT IN FACT BE ELIGIBLE
FOR RELEASE UNDER SEC. 22-1907 OR SEC. 22-1223 IF HE DID NOT IMPROVE
SINCE, IF THE AUTHORITIES COULD NOT COMMUNICATE WITH HIM, THEY COULD
NOT DECIDE WHETHER HIS CONDITION "JUSTIFIED" RELEASE.  RESPONDENT
FURTHER ARGUES THAT BECAUSE NO STATE COURT HAS EVER CONSTRUED THE
RELEASE PROVISIONS OF ANY OF THE STATUTES, WE ARE BARRED FROM RELYING
UPON ANY DIFFERENCES BETWEEN THEM.  THIS LINE OF REASONING IS
UNPERSUASIVE.  THE PLAIN LANGUAGE OF THE PROVISIONS, WHEN APPLIED TO
JACKSON'S PARTICULAR HISTORY AND CONDITION, DICTATES DIFFERENT
RESULTS.  NO STATE COURT HAS HELD THAT AN INDIANA DEFENDANT COMMITTED
AS INCOMPETENT IS ELIGIBLE FOR RELEASE WHEN HE NO LONGER NEED CUSTODIAL
CARE OR TREATMENT.  THE COMMITMENT ORDER HERE CLEARLY MAKES RELEASE
DEPENDENT UPON JACKSON'S REGAINING COMPETENCY TO STAND TRIAL.     /9/
PETITIONER ALSO ARGUES THAT THE INCOMPETENCY COMMITMENT DEPRIVED HIM OF
THE RIGHT TO BE ASSIGNED TO A SPECIAL "INSTITUTION FOR FEEBLE-MINDED
PERSONS" TO WHICH HE WOULD HAVE BEEN STATUTORILY DIRECTED BY A SEC. 22
1907 COMMITMENT.  THE STATE MAINTAINS TWO SUCH INSTITUTIONS.  THE
INDIANA SUPREME COURT THOUGHT PETITIONER "FAILED TO UNDERSTAND THE
STATUTORY MECHANISMS" FOR ASSIGNMENT FOLLOWING COMMITMENT UNDER THE TWO
PROCEDURES.  253 IND.,AT 490, 255 N.E.2D, AT 517.  IT OBSERVED THAT
SINCE THE MENTAL HEALTH DEPARTMENT NOW ADMINISTERS, IN CONSOLIDATED
FASHION, ALL THE STATE'S MENTAL FACILITIES INCLUDING THE TWO SPECIAL
INSTITUTIONS, SEE SEC. 22-5001 TO SEC. 22-5036, NOW IND. CODE 16-13-1-1
TO 16-13-1-31, 16-13-2-1, 16-13-2-7 TO 16-13-2-8, 16-14-18-3 TO 16-14
18-4 (1971), AND SINCE THE SPECIAL INSTITUTIONS ARE "APPROPRIATE
PSYCHIATRIC INSTITUTIONS" UNDER SEC. 9-1706A, CONSIDERING JACKSON'S
CONDITION, HIS INCOMPETENCY COMMITMENT CAN STILL CULMINATE IN
ASSIGNMENT TO A SPECIAL FACILITY.  THE STATE, IN ARGUMENT, WENT ONE
STEP FURTHER.  IT CONTENDED THAT IN PRACTICE THE ASSIGNMENT PROCESS
UNDER ALL THREE STATUTES IS IDENTICAL:  THE INDIVIDUAL IS REMANDED TO
THE CENTRAL STATE AUTHORITY, WHICH ASSIGNS HIM TO AN APPROPRIATE
INSTITUTION REGARDLESS OF HOW HE WAS COMMITTED. 

IF TRUE, SUCH PRACTICE APPEARS AT FIRST BLUSH CONTRARY TO THE
MANDATE OF SEC. 22-1907, REQUIRING THE COURT CLERK TO SEEK ASSIGNMENT
AT ONE OF THE TWO SPECIAL INSTITUTIONS.  HOWEVER, THE RELEVANT
STATUTES, INCLUDING THAT EFFECTING CONSOLIDATION OF ALL MENTAL HEALTH
FACILITIES UNDER ONE DEPARTMENT, HAVE BEEN ENACTED PIECEMEAL, AND OLDER
LAWS OFTEN NOT FORMALLY REVISED.  SINCE THE DEPARTMENT OF MENTAL HEALTH
HAS SOLE DISCRETIONARY AUTHORITY TO TRANSFER PATIENTS BETWEEN ANY OF
THE INSTITUTIONS IT ADMINISTERS AT ANY TIME, SEC. 22-5032(6) AND SEC.
22-301, THERE IS EVIDENTLY ADEQUATE STATUTORY AUTHORITY FOR
CONSOLIDATING THE INITIAL ASSIGNMENT DECISION. 

MOREOVER, NOTHING IN THE RECORD DEMONSTRATES THAT DIFFERENT OR
BETTER TREATMENT IS AVAILABLE AT A SPECIAL INSTITUTION THAN AT THE
GENERAL FACILITIES FOR THE MENTALLY ILL.  WE ARE NOT FACED HERE, AS WE
WERE IN BAXSTROM, WITH COMMITMENT TO A DISTINCTLY PENAL OR MAXIMUM
SECURITY INSTITUTION DESIGNED FOR DANGEROUS INMATES AND NOT MAXIMUM
SECURITY INSTITUTION DESIGNED FOR DANGEROUS INMATES AND NOT
ADMINISTERED BY THE GENERAL STATE MENTAL HEALTH AUTHORITIES. 
THEREFORE, WE CANNOT SAY THAT BY VIRTUE OF HIS INCOMPETENCY COMMITMENT
JACKSON HAS BEEN DENIED AN ASSIGNMENT OR APPROPRIATE TREATMENT TO WHICH
THOSE NOT CHARGED WITH CRIMES WOULD GENERALLY BE ENTITLED. 

SIMILARLY, JACKSON'S INCOMPETENCY COMMITMENT DID NOT DEPRIVE HIM OF
PRIVILEGES SUCH AS FURLOUGHS TO WHICH HE CLAIMS A FEEBLE-MINDEDNESS
COMMITMENT WOULD ENTITLE HIM.  THE STATUTES RELATE SUCH PRIVILEGES TO
PARTICULAR INSTITUTIONS, NOT TO THE METHOD OF COMMITMENT.  THUS
PATIENTS ASSIGNED TO THE MUSCATATUCK INSTITUTION ARE ENTITLED TO
FURLOUGHS REGARDLESS OF THE STATUTE UNDER WHICH THEY WERE COMMITTED;
AND PERSONS COMMITTED AS FEEBLE-MINDED WOULD NOT BE ENTITLED TO
FURLOUGHS IF ASSIGNED TO A GENERAL MENTAL INSTITUTION. 

/10/ CAL. PENAL CODE SECS. 1370, 1371 (1970); CONN. GEN. STAT. REV.
SEC. 54-40(C) (1958); MINN. STAT. ANN. SEC. 631.18 (SUPP. 1972-1973);
N.J. REV. STAT. SEC. 2A:  163-2 (1971); OHIO REV. CODE ANN. SECS.
2945.37 AND 2945.38 (1954); WIS. STAT. ANN. SEC. 971.14 (1971).  SEE
NOTE, INCOMPETENCY TO STAND TRIAL, 81 HARV.L.REV.  454 (1967). 

/11/  IOWA CODE ANN. SEC. 783.3 (SUPP. 1972); OKLA STAT. ANN., TIT.
22, SEC. 1167 (1958); S.D. COMP. LAWS ANN. SEC. 23-38-6 (1967). 

/12/  MICH. COMP. LAWS ANN. SEC. 767.27A (8) (1967); ORE.  REV. 
STAT. SEC. 426.300(1) (1971); WIS. STAT. ANN. SEC. 51.21(6) (SUPP.
1972). 

/13/  N.Y. CRIM. PROC. LAW SEC. 730.50 (1971); SEE ALSO ILL. REV.
STAT., C. 38, SEC. 1043(C) (1971). 

/14/  FOOTE, A COMMENT ON PRE-TRIAL COMMITMENT OF CRIMINAL
DEFENDANTS, 108 U.PA.L.REV.  832 (1960); NOTE, INCOMPETENCY TO STAND
TRIAL, 81 HARV.L.REV.  454-456, 471-472 (1967); N.Y. REPORT 91-107. 

/15/  JUDICIAL CONFERENCE OF THE DISTRICT OF COLUMBIA CIRCUIT,
REPORT OF THE COMMITTEE ON PROBLEMS CONNECTED WITH MENTAL EXAMINATION
OF THE ACCUSED IN CRIMINAL CASES, BEFORE TRIAL 49-52, 54-58, 133-146
(1965) (HEREAFTER D.C. REPORT); N.Y. REPORT 73-124; NOTE, SUPRA, 81
HARV.L.REV.,AT 471-473. 

/16/  SEE MATTHEWS, MENTAL DISABILITY AND THE CRIMINAL LAW 138-140
(AMERICAN BAR FOUNDATION 1970); MORRIS, THE CONFUSION OF CONFINEMENT
SYNDROME:  AN ANALYSIS OF THE CONFINEMENT OF MENTALLY ILL CRIMINALS AND
EX-CRIMINALS BY THE DEPARTMENT OF CORRECTION OF THE STATE OF NEW YORK,
17 BUFFALO L.REV.  651 (1968); MCGARRY & BENDT.  CRIMINAL VS. CIVIL
COMMITMENT OF PSYCHOTIC OFFENDERS:  A SEVEN-YEAR FOLLOW-UP, 125
AM.J.PSYCHIATRY 1387, 1391 (1969); D.C. REPORT 50-52. 

/17/  NOTE, SUPRA, 81 HARV.L.REV.,AT 472-473; AMERICAN BAR
FOUNDATION, THE MENTALLY DISABLED AND THE LAW 415-418 (REV. ED. 1971)
(HEREAFTER ABF STUDY); N.Y. REPORT 72-77, 102-105, 186-190. 

/18/  SEE GENERALLY AFB STUDY 34-59. 

/19/  ID., AT 36-49.  THE AFB STUDY SHOWS THAT IN NINE STATES THE
SOLE CRITERION FOR INVOLUNTARY COMMITMENT IS DANGEROUSNESS TO SELF OR
OTHERS; IN 18 OTHER STATES THE PATIENT'S NEED FOR CARE OR TREATMENT WAS
AN ALTERNATIVE BASIS; THE LATTER WAS THE SOLE BASIS IN SIX ADDITIONAL
STATES; A FEW STATES HAD NO STATUTORY CRITERIA AT ALL, PRESUMABLY
LEAVING THE DETERMINATION TO JUDICIAL DISCRETION. 

/20/  SEE NOTE, CIVIL RESTRAINT, MENTAL ILLNESS, AND THE RIGHT TO
TREATMENT, 77 YALE L.J. 87 (1967). 

/21/  SEE NOTE, CIVIL COMMITMENT OF THE MENTALLY ILL:  THEORIES AND
PROCEDURES, 79 HARV.L.REV.  1288, 1289-1297 (1966). 

/22/  IN 1961, IT WAS ESTIMATED THAT 90% OF THE APPROXIMATELY
800,000 PATIENTS IN MENTAL HOSPITALS IN THIS COUNTRY HAD BEEN
INVOLUNTARILY COMMITTED.  HEARINGS ON CONSTITUTIONAL RIGHTS OF THE
MENTALLY ILL BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE
SENATE COMMITTEE ON THE JUDICIARY, 87TH CONG., 1ST SESS., T. 1, PP. 11,
43 (1961).  ALTHOUGH LATER U.S. CENSUS BUREAU DATA FOR 1969 SHOW A
RESIDENT PATIENT POPULATION ALMOST 50% LOWER, OTHER DATA FROM THE U.S.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE ESTIMATE ANNUAL ADMISSIONS
TO INSTITUTIONS TO BE ALMOST EQUAL TO THE PATIENT POPULATION AT ANY ONE
TIME, ABOUT 380,000 PERSONS PER ANNUM.  SEE AFB STUDY XV. 

/23/  CF. POWELL V. TEXAS, 392 U.S. 514 (1968); ROBINSON V.
CALIFORNIA, 370 U.S. 660 (1962). 

/24/  IN RE HARMON, 425 F.2D 916, 918 (CA1 1970). 

/25/  IN THIS CASE, OF COURSE, JACKSON OR THE STATE MAY SEEK HIS
COMMITMENT UNDER EITHER THE GENERAL CIVIL COMMITMENT STATUTES OR UNDER
THOSE FOR THE COMMITMENT OF THE FEEBLEMINDED. 

/26/  ONE DOCTOR TESTIFIED THAT JACKSON "PROBABLY KNOWS IN A GENERAL
WAY THE BASIC DIFFERENCES BETWEEN RIGHT AND WRONG."  THE OTHER DOCTOR
AGREED, BUT ALSO TESTIFIED THAT JACKSON PROBABLY HAD NO GRASP
WHATSOEVER OF ABSTRACT CONCEPTS SUCH AS TIME, "LIKE SIMPLE THINGS OF
YESTERDAY AND TOMORROW." 

/27/  PEOPLE EX REL. MYERS V. BRIGGS, 46 ILL.2D 281, 287-288, 263
N.E.2D 109, 112-113 (1970); UNITED STATES EX REL. WOLFERSDORF V.
JOHNSTON, 317 F.SUPP.  66, 68 (SDNY 1970); UNITED STATES V. JACKSON 306
F.SUPP.  4, 6 (ND CAL. 1969); SEE FOOTE, SUPRA, N. 14, AT 838-839; D.C.
REPORT 145-146 (RECOMMENDATION NO. 16). 

/28/  SEE CASES CITED IN N. 27; N.Y. REPORT 119-121 (RECOMMENDATION
NO. 15); D.C. REPORT 52-53; MODEL PENAL CODE SEC. 4.06(2) (PROPOSED
OFFICIAL DRAFT 1962). 

/29/  PEOPLE EX REL. MYERS V. BRIGGS, SUPRA, AT 288 N.E.2D, AT 113;
NEELY V. HOGAN, 62 MISC.2D 1056, 310 N.Y.S.2D 63 (1970); N.Y. REPORT
115-123 (RECOMMENDATION NO. 13); D.C. REPORT 143-144 (RECOMMENDATION
NO. 15); FOOTE, SUPRA, N. 14, AT 841-845; MODEL PENAL CODE SEC. 4.06
(ALTERNATIVE SUBSECTIONS 3, 4) (PROPOSED OFFICIAL DRAFT 1962); ABF
STUDY 423. 

/30/  WIS. STAT. ANN. SEC. 971.14(6) (1971); N.Y. CRIM. PROC. LAW
SEC. 730.60(5) (1971); MASS. GEN. LAWS, C. 123, SEC. 17 (SUPP. 1972);
MONT. REV. CODE.  ANN.  SEC. 95-506(C) (1969); MD. ANN CODE, ART. 59,
SEC. 24(A) (1972).  SEE REG. V. ROBERS, (1953) 3 W.L.R. 178 (1953) 2
ALL.E.R. 340 (DEVLIN, J.). 

/31/  SEE PATE V. ROBINSON, 383 U.S. 375 (1966); BISHOP V. UNITED
STATES, 350 U.S. 961 (1956). 

FRANK E. SPENCER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE ROBERT HOLLOWELL, JR., AND ROBERT ROBINSON. 

SHELDON A. BRESKOW ARGUED THE CAUSE FOR RESPONDENT.  ON THE BRIEF
WERE THEODORE L. SENDAK, ATTORNEY GENERAL OF INDIANA, AND WILLIAM F.
THOMPSON, ASSISTANT ATTORNEY GENERAL. 
..END :







UNITED STATES V. ALLEGHENY-LUDLUM STEEL, 406 U.S. 742 


       UNITED STATES ET AL. V. ALLEGHENY-LUDLUM STEEL CORP. ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF PENNSYLVANIA

        NO. 71-227.  ARGUED MARCH 27, 1972-- DECIDED JUNE 7, 1972 


1.  TWO "CAR SERVICE RULES" PROMULGATED BY THE INTERSTATE COMMERCE
COMMISSIONER (ICC), REQUIRING GENERALLY THAT UNLOADED FREIGHT CARS BE
RETURNED IN THE DIRECTION OF THE OWNING RAILROAD, ARE "REASONABLE"
UNDER THE ESCH CAR SERVICE ACT OF 1917, IN VIEW OF THE ICC'S FINDING,
FOR WHICH THERE IS SUBSTANTIAL RECORD SUPPORT, OF A NATIONAL FREIGHT
CAR SHORTAGE, AND ITS CONCLUSION THAT THE SHORTAGE COULD BE ALLEVIATED
BY MANDATORY OBSERVANCE OF THE RULES, WHICH WOULD GIVE THE RAILROADS
GREATER USE OF THIER CARDS AND PROVIDE AN INCENTIVE FOR THE PURCHASE OF
NEW EQUIPMENT.  PP. 744-755. 

2.  THE ICC PROCEEDING IN THIS CASE WAS GOVERNED BY, AND FULLY
COMPLIED WITH, SEC. 553 OF THE ADMINISTRATIVE PROCEDURE ACT.  PP. 756
758. 

325 F.SUPP.  352, REVERSED. 

REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

IN 1969 THE INTERSTATE COMMERCE COMMISSION PROMULGATED TWO "CAR
SERVICE RULES" THAT WOULD HAVE THE GENERAL EFFECT OF REQUIRING THAT
FREIGHT CARS, AFTER BEING UNLOADED, BE RETURNED IN THE DIRECTION OF THE
LINES OF THE ROAD OWNING THE CARS.  SEVERAL RAILROADS AND SHIPPERS
INSTITUTED TWO SEPARATE SUITS UNDER 28 U.S.C. 2321-2325 TO ENJOIN
ENFORCEMENT OF THESE RULES.  IN FLORIDA EAST COAST R. CO. V. UNITED
STATES, 327 F.SUPP.  1076 (MD FLA. 1971), THE ACTION OF THE COMMISSION
WAS SUSTAINED BY A THREE-JUDGE COURT, BUT IN THE CASE NOW BEFORE US A
SIMILAR COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA HELD THE
COMMISSION'S ORDER INVALID.  325 F.SUPP.  352 (WD PA. 1971).  WE NOTED
PROBABLE JURISDICTION, 404 U.S. 937, AND FOR THE REASONS HEREINAFTER
STATED WE CONCLUDE THAT THE COMMISSION'S ACTION HERE CHALLENGED WAS
WITHIN THE SCOPE OF THE AUTHORITY CONFERRED UPON IT BY CONGRESS AND
CONFORMED TO PROCEDURAL REQUIREMENTS. 

THE COUNTRY'S RAILROADS LONG AGO ABANDONED THE CUSTOM OF SHIFTING
FREIGHT BETWEEN THE CARS OF CONNECTING ROADS, AND ADOPTED THE PRACTICE
OF SHIPPING THE SAME LOADED CAR OVER CONNECTING LINES TO ITS ULTIMATE
DESTINATION.  THE FREIGHT CARS OF THE NATION THUS BECAME IN ESSENCE A
SINGLE COMMON POOL, USED BY ALL ROADS.  THIS PRACTICE NECESSARILY
REQUIRED SOME ARRANGEMENTS FOR EVENTUAL RETURN OF A FREIGHT CAR TO THE
LINES OF THE ROAD WHICH OWNED IT, AND IN 1902 THE RAILROADS THROUGH
THEIR TRADE ASSOCIATION DEALT WITH THIS AND RELATED PROBLEMS IN A CODE
OF CAR-SERVICE RULES WITH WHICH THE ROADS AGREED AMONG THEMSELVES TO
COMPLY.  THE EFFECT OF THE COMMISSION'S ORDER NOW UNDER REVIEW IS TO
PROMULGATE TWO OF THESE RULES /1/  AS THE COMMISSION'S OWN, WITH THE
RESULT THAT SANCTIONS ATTACH TO THEIR VIOLATION BY THE RAILROADS. 

BECAUSE OF CRITICAL FREIGHT-CAR SHORTAGES EXPERIENCED DURING WORLD
WAR I, CONGRESS ENACTED THE ESCH CAR SERVICE ACT OF 1917, WHICH
EMPOWERED THE COMMISSION TO ESTABLISH REASONABLE RULES AND PRACTICES
WITH RESPECT TO CAR SERVICE BY RAILROADS.  40 STAT. 101, 49 U.S.C. 1
(14)(A).  THE PERTINENT LANGUAGE OF THAT ACT PROVIDES: 

     "THE COMMISSION MAY . . . ESTABLISH REASONABLE RULES,

  REGULATIONS, AND PRACTICES WITH RESPECT TO CAR SERVICE BY COMMON

  CARRIERS BY RAILROAD SUBJECT TO THIS CHAPTER . . . "

NO PARTY TO THIS PROCEEDING HAS QUESTIONED THAT THE RULES PROMULGATED
BY THE COMMISSION ARE "RULES, REGULATIONS, AND PRACTICES WITH RESPECT
TO CAR SERVICE," AND THEREFORE THE ISSUE BEFORE US IS WHETHER THESE
RULES ARE "REASONABLE" AS THAT TERM IS USED IN THE ESCH ACT.  THE COURT
BELOW CONCLUDED, AND THE APPELLEES HERE CONTENT, THAT FOR A NUMBER OF
REASONS THE RULES IN QUESTION DO NOT MEET THE STATUTORY REQUIREMENT OF
REASONABLENESS.  APPELLEES ALSO CONTENT THAT THE FINDINGS OF THE
COMMISSION ARE INSUFFICIENT UNDER THE ADMINISTRATIVE PROCEDURE ACT, 5
U.S.C. 551 ET SEQ. 

THE RECORD OF PROCEEDINGS BEFORE THE COMMISSION ESTABLISHED THAT THE
COMMISSION HAS BEEN INCREASINGLY CONCERNED WITH RECURRING SHORTAGES OF
FREIGHT CARS AVAILABLE TO SERVE THE NATION'S SHIPPERS.  IT FOUND THAT
SHORTAGES OF VARYING DURATION AND SEVERITY OCCUR BOTH AS AN ANNUAL
PHENOMENON AT PEAK LOADING PERIODS AND ALSO DURING TIMES OF NATIONAL
EMERGENCY.  THE RESULT OF THESE SHORTAGES HAS BEEN THAT ROADS WERE
UNABLE TO PROMPTLY SUPPLY FREIGHT CARS TO SHIPPERS WHO HAD NEED OF
THEM. 

UNDERLYING THESE CHRONIC SHORTAGES OF AVAILABLE FREIGHT CARS, THE
COMMISSION FOUND, WAS AN INADEQUATE SUPPLY OF FREIGHT CARS OWNED BY THE
NATION'S RAILROADS.  THE COMMISSION CONCLUDED THAT ONE OF THE PRINCIPAL
FACTORS CAUSING THIS INADEQUATE SUPPLY OF FREIGHT CARS WAS THE
OPERATION OF THE NATIONAL CAR-POOL SYSTEM.  IN PRACTICE THIS SYSTEM
RESULTED IN FREIGHT CARS BEING ON LINES OTHER THAN THOSE OF THE OWNING
ROAD FOR LONG PERIODS OF TIME, SINCE THE RULES PROVIDING FOR THE RETURN
OF UNLOADED FREIGHT CARS IN THE DIRECTION OF THE LINES OF THE OWNING
ROAD WERE OBSERVED MORE OFTEN THAN NOT IN THE BREACH.  SINCE THE OWNING
ROAD WAS DEPRIVED OF THE USE OF ITS OWN FREIGHT CARS FOR EXTENDED
PERIODS OF TIME, THE COMMISSION FOUND, THERE WAS VERY LITTLE INCENTIVE
FOR IT TO ACQUIRE NEW FREIGHT CARS.  IN ADDITION, SINCE A ROAD WHICH
OWNED A SUPPLY OF FREIGHT CARS INADEQUATE TO SERVE ITS OWN ON-LINE
SHIPPERS COULD GENERALLY, BY HOOK OR BY CROOK, ARRANGE TO UTILIZE CARS
OWNED BY OTHER ROADS, THE NATIONAL CAR-POOL SYSTEM SIGNIFICANTLY
REDUCED THE NORMAL INCENTIVE FOR A RAILROAD TO ACQUIRE SUFFICIENT
EQUIPMENT TO SERVE ITS CUSTOMERS.  THE RULES PROMULGATED BY THE
COMMISSION ARE INTENDED TO MAKE THOSE RAILROADS WHO UNDERSUPPLY OF
FREIGHT CARS CONTRIBUTES TO THE NATIONAL SHORTAGE MORE DIRECTLY FEEL
THE PINCH RESULTING FROM THE SHORTAGE THAT THEY HAVE HELPED TO CAUSE. 
BY THUS REQUIRING EACH ROAD TO FACE UP TO ANY INADEQUACIES IN ITS
OWNERSHIP OF FREIGHT CARS, THE RULES ARE INTENDED IN THE LONG RUN TO
CORRECT THE NATION-WIDE SHORT SUPPLY OF FREIGHT CARS THAT THE
COMMISSION HAS FOUND TO EXIST. 

CENTRAL TO THE JUSTIFICATION FOR THE COMMISSION'S PROMULGATION OF
THESE RULES IS ITS FINDING THAT THERE WAS A NATIONWIDE SHORTAGE OF
FREIGHT CAR OWNERSHIP.  THE COURT BELOW ASSUMED THE CORRECTNESS OF THAT
FINDING, AND WE CONCLUDE THAT IT WAS SUPPORTED BY SUBSTANTIAL
EVIDENCE. 

SHORTLY AFTER THE SECOND WORLD WAR, THE COMMISSION CONDUCTED AN
INVESTIGATION INTO THE ADEQUACY OF FREIGHT CAR SUPPLY AND UTILIZATION
BY THE NATION'S RAILROADS.  THE COMMISSION IN THAT PROCEEDING CONCLUDED
THAT THERE WAS "AN INADEQUACY IN FREIGHT CAR OWNERSHIP BY RAIL CARRIERS
AS A GROUP."  RECOGNIZING THAT THIS INADEQUACY WAS CAUSED AT LEAST IN
PART BY THE INABILITY OF THE RAILROADS TO ACQUIRE NEW EQUIPMENT, FIRST
DURING AN ERA OF WARTIME DEMAND AND THEN DURING AN ERA OF POST-WAR
BOOM, THE COMMISSION AT THAT TIME IMPOSED NO OBLIGATION ON THE
RAILROADS EXCEPT TO REQUIRE THEM TO FILE WITH IT THEIR RULES AND
REGULATIONS WITH RESPECT TO CAR SERVICE. 

IN 1963 THE COMMISSION BEGAN THIS INVESTIGATION INTO THE ADEQUACY OF
CAR OWNERSHIP, DISTRIBUTION, AND UTILIZATION.  AT THE CONCLUSION OF THE
INVESTIGATORY PHASE OF THE PROCEEDING IN 1964, THE COMMISSION
DETERMINED THAT THERE WAS A SHORTAGE OF FREIGHT CARS IN GENERAL
SERVICE.  323 I.C.C. 48 (1964).  FORMAL NOTIFICATION OF PROPOSED
RULEMAKING WAS THEN ISSUED, AND A QUESTIONNAIRE WAS SUBMITTED TO THE
VARIOUS RAILROADS FOR THE PURPOSE OF COMPILING DATA ON CAR OWNERSHIP
AND USE.  AFTER THESE DATA WERE GATHERED, RAILROADS, SHIPPERS, AND
OTHER INTERESTED PARTIES WERE PERMITTED TO FILE VERIFIED STATEMENTS
PROVIDING FURTHER FACTUAL MATERIAL AND TO ADDUCE LEGAL ARGUMENTS.  THE
COMMISSION, THROUGH ITS BUREAU OF OPERATIONS, PRESENTED TO THE HEARING
EXAMINER TABULAR COLLATIONS OF THE FREIGHT CAR OWNERSHIP AND USE DATA,
AND SUGGESTED A FORMULA BY WHICH A RAILROAD MIGHT COMPUTE THE
SUFFICIENCY OF ITS FREIGHT CAR OWNERSHIP.  THE BUREAU ALSO PROPOSED
THAT THE ENTIRE CODE OF CAR SERVICE RULES ADOPTED BY THE ASSOCIATION OF
AMERICAN RAILROADS BE PROMULGATED BY THE COMMISSION FOR MANDATORY
OBSERVANCE. 

MANY RAILROADS AND SHIPPERS OPPOSED MANDATORY ENFORCEMENT OF THE
RULES.  SOME ROADS AND SHIPPERS APPEARED IN FAVOR OF AT LEAST SOME
MANDATORY ENFORCEMENT OF THE RULES, ARGUING THAT UNLESS SOME COMPULSION
WERE USED IN ENFORCING THEM, CARS PURCHASED BY A RAILROAD FOR USE BY
ITS SHIPPERS WOULD CONTINUE TO BE DETAINED FOR INORDINATELY LONG
PERIODS OF TIME BY OTHER ROADS. 

AFTER 50 DAYS OF HEARINGS, THE TRIAL EXAMINER ISSUED HIS REPORT,
RECOMMENDING AGAINST MANDATORY ENFORCEMENT OF THE CAR-SERVICE RULES. 
ALTHOUGH THE COMMISSION, PRIOR TO REFERRING THE MATTER TO HIM, HAD
PREVIOUSLY MADE A DEFINITIVE FINDING THAT A SHORTAGE OF FREIGHT CARS
EXISTED, THE EXAMINER'S REPORT STATED THAT THERE WAS NO COMPETENT
EVIDENCE IN THE RECORD DEVELOPED BEFORE HIM UPON WHICH SUCH A
DETERMINATION COULD BE MADE.  THE EXAMINER ASSIGNED SEVERAL REASONS FOR
RECOMMENDING AGAINST MANDATORY ENFORCEMENT OF THE RULES. 

THE COMMISSION ISSUED A COMPREHENSIVE OPINION DISAGREEING WITH THE
TRIAL EXAMINER IN MANY RESPECTS, AND ORDERING THAT TWO OF THE CAR
SERVICE RULES BE PROMULGATED AS RULES OF THE COMMISSION WITH SANCTIONS
ATTACHING TO NONCOMPLIANCE.  FINDING THAT "(THE CONTINUING RELOCATION
OF CARS ON OWNER'S LINES IS OF MAJOR IMPORTANCE TO THE MAINTENANCE OF
AN ADEQUATE CAR SUPPLY,"  /2/  THE COMMISSION CONCLUDED THAT THE
INCONVENIENCES FEARED BY THE SHIPPERS WERE OUTWEIGHED BY THE LONG-TERM
BENEFIT THAT WOULD ACCRUE FROM THE MANDATORY ENFORCEMENT OF THE TWO CAR
SERVICE RULES. 

AFTER ITS FIRST ORDER ADOPTING THE TWO RULES WAS ISSUED, THE
COMMISSION CONSIDERED CLAIMS THAT THERE WAS NEED FOR SOME PROCEDURE FOR
EXCEPTIONS TO THE MANDATORY ENFORCEMENT OF THE RULES.  A SUPPLEMENTAL
ORDER THAT ESTABLISHED ANOTHER RULE THAT PERMITTED THE RAILROADS TO
SEEK EXCEPTION FROM THE COMMISSION'S BUREAU OF OPERATIONS, IN ORDER TO
ALLEVIATE INEQUITIES AND HARDSHIPS.  /3/ 

THE COURT BELOW HELD THAT THE RULES WERE NOT "REASONABLE," AS THAT
TERM IS USED IN THE ESCH ACT, FOR THREE REASONS.  FIRST, ALTHOUGH THERE
WAS A GENERAL FINDING OF A NATIONWIDE FREIGHT CAR SHORTAGE, THE COURT
SAID THAT A SPECIFIC SHORTAGE ON OWNER LINES SHOULD HAVE BEEN FOUND IN
ORDER TO JUSTIFY THE PROMULGATION OF THESE RULES.  SECOND, IT SAID
THERE SHOULD HAVE BEEN A FINDING AS TO THE FINANCIAL EFFECTS UPON THE
RAILROADS AND SHIPPERS WHO WOULD BE AFFECTED BY THE RULES.  FINALLY, IT
SUPPORTED ITS CONCLUSION THAT THE RULES WERE NOT "REASONABLE" BY THE
FACT THAT EVEN THOUGH VIOLATION OF THE RULES COULD BE ENFORCED BY
MONETARY PENALTIES, THE COMMISSION NONETHELESS CONCEDED THAT OBTAINING
COMPLETE COMPLIANCE WITH THEM WOULD BE IMPOSSIBLE. 

THE STANDARD OF JUDICIAL REVIEW FOR ACTIONS OF THE INTERSTATE
COMMERCE COMMISSION IN GENERAL, WESTERN CHEMICAL CO. V. UNITED STATES,
271 U.S. 268 (1926), AND FOR ACTIONS TAKEN BY THE COMMISSION UNDER THE
AUTHORITY OF THE ESCH ACT IN PARTICULAR, ASSIGNED CAR CASES, 274 U.S.
564 (1927), IS WELL ESTABLISHED BY PRIOR DECISIONS OF THIS COURT.  WE
DO NOT WEIGH THE EVIDENCE INTRODUCED BEFORE THE COMMISSION; WE DO NOT
INQUIRE INTO THE WISDOM OF THE REGULATIONS THAT THE COMMISSION
PROMULGATES, AND WE INQUIRE INTO THE SOUNDNESS OF THE REASONING BY
WHICH THE COMMISSION REACHES ITS CONCLUSIONS ONLY TO ASCERTAIN THAT THE
LATTER ARE RATIONALLY SUPPORTED.  IN JUDICIALLY REVIEWING THESE
PARTICULAR RULES PROMULGATED BY THE COMMISSION, WE MUST BE ALERT TO THE
DIFFERING STANDARD GOVERNING REVIEW OF THE COMMISSION'S EXERCISE OF ITS
RULEMAKING AUTHORITY, ON THE ONE HAND, AND THAT GOVERNING ITS
ADJUDICATORY FUNCTION, ON THE OTHER: 

"IN THE CASES CITED, THE COMMISSION WAS DETERMINING THE RELATIVE
RIGHTS OF THE SEVERAL CARRIERS IN A JOINT RATE.  IT WAS MAKING A
PARTITION; AND IT PERFORMED A FUNCTION QUASI-JUDICIAL IN ITS NATURE. 
IN THE CASE AT BAR, THE FUNCTION EXERCISED BY THE COMMISSION IS WHOLLY
LEGISLATIVE.  ITS AUTHORITY TO LEGISLATE IS LIMITED TO ESTABLISHING A
REASONABLE RULE.  BUT IN ESTABLISHING A RULE OF GENERAL APPLICATION, IT
IS NOT A CONDITION OF ITS VALIDITY THAT THERE BE ADDUCED EVIDENCE OF
ITS APPROPRIATENESS IN RESPECT TO EVERY RAILROAD TO WHICH IT WILL BE
APPLICABLE.  IN THIS CONNECTION, THE COMMISSION, LIKE OTHER
LEGISLATORS, MAY REASON FROM THE PARTICULAR TO THE GENERAL."  ASSIGNED
CAR CASES, SUPRA, AT 583. 

THE FINDING OF THE COMMISSION AS TO A NATIONWIDE SHORTAGE OF FREIGHT
CARS WAS BASED PRIMARILY ON DATA SUBMITTED BY THE RAILROADS THEMSELVES
COVERING THE YEARS 1955 THROUGH 1964.  OVER THIS 10-YEAR PERIOD TOTAL
FREIGHT CAR OWNERSHIP OF CLASS I RAILROADS DROPPED 12.4%, AND AGGREGATE
CARRYING CAPACITY OF THOSE RAILROADS DROPPED 5%.  OVER THE SAME PERIOD
REVENUE TONS ORIGINATED DROPPED 2.9%.  THE DECLINE IN OWNERSHIP OF
PLAIN BOX CARS, AS OPPOSED TO MORE SOPHISTICATED TYPES OF CARS, WAS
EVEN MORE DRAMATIC; OWNERSHIP OF CARS OVER THE 10-YEAR PERIOD IN
QUESTION DROPPED 22.1%, WHILE AGGREGATE CARRYING CAPACITY OF SUCH CARS
DROPPED 18.9%.  TESTIMONY OF WITNESSES FOR THE NATIONAL INDUSTRIAL
TRAFFIC LEAGUE, THE WESTERN WOOD PRODUCTS ASSOCIATION, THE AMERICAN
PLYWOOD ASSOCIATION, AND THE VULCAN MATERIALS ASSOCIATION ALSO
SUPPORTED THE FINDING OF A CAR SHORTAGE.  THESE STATISTICS, TAKEN
TOGETHER WITH THE COMMISSION'S POST-WAR DETERMINATION OF A CAR
SHORTAGE, PORTRAY A GRADUALLY WORSENING RATIO OF CARRYING CAPACITY TO
REVENUE TONS ORIGINATED. 

THE COMMISSION FURTHER FOUND THAT FREIGHT CAR SHORTAGES, IN THE
SENSE THAT A PARTICULAR ROAD WAS UNABLE TO PROMPTLY SUPPLY FREIGHT CARS
TO PARTICULAR SHIPPERS WHO NEEDED THEM, HAVE OCCURRED CHRONICALLY, BOTH
DURING PEAK LOADING SEASONS EACH YEAR AND DURING TIMES OF NATIONAL
EMERGENCY.  IT IS QUITE TRUE, AS APPELLEES SUGGEST, THAT INABILITY OF
THE ROADS TO SUPPLY CARS TO SHIPPERS AT PARTICULAR TIMES IS NOT
CONCLUSIVE EVIDENCE THAT THERE IS A NATIONAL SHORTAGE OF FREIGHT CAR
OWNERSHIP.  CONCEIVABLY, FREIGHT CAR OWNERSHIP COULD BE ADEQUATE, YET
POOR UTILIZATION OF THE SUPPLY COULD RESULT IN SHORTAGES.  NONETHELESS,
THE COMMISSION MAY FAIRLY RELY ON THESE CHRONIC SHORTAGES IN
AVAILABILITY OF FREIGHT CARS AS ONE FACTOR UPON WHICH TO BASE ITS
CONCLUSION THAT THERE WAS AN OVERALL SHORTAGE OF OWNERSHIP OF FREIGHT
CARS.     THE COMMISSION ALSO FOUND THAT A SURPRISINGLY LOW PERCENTAGE
OF FREIGHT CARS WAS ACTUALLY ON THE TRACKS OF THE ROADS OWNING THE CARS
AT ANY GIVEN TIME, AND THAT THIS PERCENTAGE HAD BEEN DECREASING DURING
THE PERIOD IN QUESTION.  IN MARCH 1966, LESS THAN 30% OF THE RAILROADS'
PLAIN BOX CARS WERE ON THE LINE OF THEIR OWNER, AND DURING THE
PRECEDING YEAR THAT PERCENTAGE REMAINED MOSTLY IN THE LOW THIRTIES. 
THE COMMISSION SUMMARIZED THE FACTUAL SITUATION IT FOUND IN THESE
WORDS: 

     "FROM THE EVIDENCE ADDUCED AND THE DATA COLLECTED, IT IS

  OBVIOUS THAT AN ADEQUATE FREIGHT CAR SUPPLY IS AS MUCH A PROBLEM

TODAY AS IT WAS DURING THE PERIOD CONSIDERED IN OUR LAST

PROCEEDING IN 1947.  CAR SERVICE WHICH INVOLVES A SHORTAGE OF

  APPROXIMATELY ONE OUT OF EVERY TEN CARS ORDERED OR EVEN ONE OUT

  OF EVERY FIFTEEN CARS ORDERED DEMANDS THAT EVERY AVAILABLE MEANS

  BE MARSHALLED TO ELIMINATE SUCH DEFICIENCIES."  335 I.C.C.,AT

  285. 

ONE OF THE MEANS MARSHALED BY THE COMMISSION TO ELIMINATE SUCH
DEFICIENCIES WAS THE PROMULGATION OF THE TWO RULES UNDER ATTACK HERE. 
THE THRUST OF THESE RULES IS TO REQUIRE THAT FREIGHT CARS AFTER
UNLOADING BE DISPATCHED IN THE DIRECTION OF THE LINES OF THE OWNING
ROAD. 

THUS, THE COMMISSION CONCLUDED AFTER INVESTIGATION THAT THE
RAILROADS WERE FREQUENTLY UNABLE TO SUPPLY SHIPPERS WITH FREIGHT CARS. 
IT REASONED FROM THIS FACT, AND FROM STATISTICS SHOWING A SIGNIFICANTLY
MORE RAPID DECLINE IN AGGREGATE CARRYING CAPACITY THAN IN REVENUE TONS
ORIGINATED, THAT AN UNDERLYING AND IMPORTANT CAUSE OF THE
UNAVAILABILITY OF BOX CARS TO SHIPPERS WAS THAT THE NATION'S RAILROADS
SIMPLY DID NOT JOINTLY OWN A SUFFICIENT NUMBER OF FREIGHT CARS TO
ADEQUATELY SERVE SHIPPERS OF GOODS OVER THEIR LINES.  BECAUSE OF THE
EXISTENCE OF THE NATIONAL POOL OF FREIGHT CARS, WHEREBY ROADS MAY
SERVICE ON-LINE SHIPPERS WITH FOREIGN CARS, IT WAS DIFFICULT, IF NOT
IMPOSSIBLE, TO RELATE INADEQUATE OWNERSHIP STATISTICALLY TO ANY
PARTICULAR ROAD OR ROADS.  THE COMMISSION THEREFORE CHOSE TO MAKE
MANDATORY TWO OF THE CAR-SERVICE RULES THAT WOULD HAVE THE EFFECT OF
ALIGNING MORE CLOSELY THAN AT PRESENT THE OWNERSHIP OF FREIGHT CARS ON
THE PART OF THE ROAD WITH THE AVAILABILITY OF THOSE FREIGHT CARS TO THE
OWNING ROAD FOR USE OF ITS ON-LINE SHIPPERS.  THE RESULT OF THESE
RULES, OVER THE LONG TERM, THE COMMISSION REASONED, WOULD BE TO BRING
HOME TO THOSE ROADS WHICH THEMSELVES HAD AN INADEQUATE SUPPLY OF CARS
TO SERVE THEIR ON-LINE SHIPPERS THAT FACT, AND ALSO WITHOUT DOUBT TO
SUPPLY INCENTIVE TO SUCH ROADS TO AUGMENT THEIR SUPPLY OF FREIGHT CARS
IN ORDER TO ADEQUATELY SERVE THEIR ON-LINE SHIPPERS.  THE NATIONAL
SUPPLY OF FREIGHT CARS WOULD THEREBY BE AUGMENTED, AND THE RAILROADS AS
A RESULT WOULD BE BETTER ABLE TO SUPPLY THE NEEDS OF SHIPPERS. 

APPELLEES' FUNDAMENTAL SUBSTANTIVE CONTENTION IS THAT THE SHORT-TERM
CONSEQUENCES OF THE ENFORCEMENT OF THESE RULES WILL SO SERIOUSLY
DISRUPT ESTABLISHED INDUSTRY PRACTICES AS TO OUTWEIGH ANY POSSIBLE LONG
TERM BENEFITS IN SERVICE THAT MIGHT ACCRUE FROM THEM, AND THAT
THEREFORE THE RULES ARE NOT "REASONABLE" AS THAT TERM IS USED IN THE
ESCH ACT.  /4/  WHILE, OF COURSE, CONCEDING THAT THE RAILROADS
THEMSELVES ORIGINALLY PROMULGATED THE RULES FOR VOLUNTARY COMPLIANCE,
APPELLEES ARGUE THAT BECAUSE THE RULES HAVE BEEN OBSERVED LARGELY IN
THE BREACH, USAGES AND PRACTICES HAVE GROWN UP THAT PERMIT FAR MORE
EFFICIENT UTILIZATION OF THE EXISTING FLEET OF FREIGHT CARS THAN WOULD
BE PERMITTED IF THE TWO RULES IN QUESTION WERE ENFORCED BY THE
COMMISSION.  APPELLEES STATE THAT IN RELIANCE ON THE EXISTENCE OF A
NATIONAL POOL OF FREIGHT CARS, AND ON THE CONSEQUENT AVAILABILITY TO
SHIPPERS OF CARS NOT OWNED BY THE LINE ORIGINATING THE SHIPMENT,
MANUFACTURING PLANTS HAVE BEEN LOCATED AND ENLARGED.  THEY CLAIM THAT
ENFORCEMENT OF THE RULES NOW WOULD SERIOUSLY HAMPER THE MOVEMENT OF
FREIGHT TRAFFIC FROM THESE AND OTHER SHIPPING POINTS. 

IT MAY BE CONCEDED THAT THE IMMEDIATE EFFECT OF THE COMMISSION'S
ORDER WILL BE TO DISRUPT SOME ESTABLISHED PRACTICES WITH RESPECT TO THE
HANDLING AND ROUTING OF FREIGHT CARS, AND ON OCCASION TO CAUSE SERIOUS
INCONVENIENCE TO SHIPPERS AND RAILROADS ALIKE.  IF THE COMMISSION WERE
THRUSTING THESE REGULATIONS UPON AN ADMITTEDLY SMOOTHLY FUNCTIONING
TRANSPORTATION INDUSTRY, WELL SUPPLIED WITH NECESSARY ROLLING STOCK AND
ADEQUATELY SERVING ALL SHIPPERS, THE RATIONALITY OF ITS ACTION MIGHT
WELL BE OPEN TO QUESTION. 

BUT SUCH IS NOT THE CASE.  THE COMMISSION'S FINDING THAT THERE ARE
RECURRING PERIODS OF SIGNIFICANT LENGTH WHEN THERE IS NOT AN ADEQUATE
FREIGHT CAR SUPPLY TO SERVICE SHIPPERS IS SUPPORTED BY SUBSTANTIAL
EVIDENCE.  WHILE THE FLEXIBLE SYSTEM OF ROUTING FREIGHT CARS PRESENTLY
IN EXISTENCE MAY WELL HAVE SHORT-TERM ADVANTAGES BOTH FOR SOME SHIPPERS
AND SOME ROADS, THE COMMISSION COULD QUITE REASONABLY CONCLUDE THAT IT
HAS LONGTERM DRAWBACKS AS WELL.  THE OTHERWISE ADVERSE EFFECT ON A
ROAD'S ABILITY TO SERVE SHIPPERS THAT WOULD RESULT FROM ITS OWNING TOO
FEW CARS IS CUSHIONED; THE BENEFICIAL EFFECT ON A ROAD'S ABILITY TO
SERVE SHIPPERS THAT WOULD RESULT FROM ITS OWNING A SUFFICIENT SUPPLY OF
CARS IS DISSIPATED.  THE COMMISSION UNDOUBTEDLY FELT THAT RULES
DESIGNED ONLY TO MOST EFFICIENTLY UTILIZE THE EXISTING INADEQUATE FLEET
OF FREIGHT CARS WOULD HAVE LITTLE OR NOT EFFECT ON THE NATIONWIDE
SHORTAGE OF SUCH CARS.  INDEED, THE APPELLEES STRESS THE CONCESSION BY
THE COMMISSION THAT THESE RULES "ARE NOT DESIGNED TO IMPROVE THE
UTILIZATION OF FREIGHT CARS, EXCEPT INSOFAR AS RETURN LOADING IS
COMPATIBLE WITH THE PRIMARY OBJECTIVE OF INCREASING AVAILABILITY OF
CARS TO THE OWNER."  335 I.C.C.,AT 294. 

BUT ONLY IF WE WERE TO HOLD THAT CONGRESS, IN ENACTING THE ESCH CAR
SERVICE ACT, INTENDED THAT THE ONLY CRITERION THAT THE COMMISSION MIGHT
CONSIDER IN ESTABLISHING "REASONABLE RULES, REGULATIONS, AND PRACTICES
WITH RESPECT TO CAR SERVICE" WAS THE OPTIMUM UTILIZATION OF AN EXISTING
FLEET OF FREIGHT CARS, HOWEVER, NUMERICALLY INADEQUATE THAT FLEET MIGHT
BE, COULD THIS ARGUMENT BE SUSTAINED.  NEITHER THE LANGUAGE THAT
CONGRESS USED NOR THE LEGISLATIVE HISTORY OF THE ACT SUPPORTS SUCH A
NARROW READING OF ITS GRANT OF AUTHORITY TO THE COMMISSION.  ON THE
RECORD BEFORE IT, THE COMMISSION WAS JUSTIFIED IN DECIDING THAT THE
RAILROADS AND THE SHIPPERS WERE AFFLICTED WITH AN ECONOMIC ILLNESS THAT
MIGHT HAVE TO GET WORSE BEFORE IT GOT BETTER.  EXISTING PRACTICES
RESPECTING CAR SERVICE TENDED TO DESTROY ANY INCENTIVE ON THE PART OF
RAILROADS TO ACQUIRE NEW CARS, AND THE RESULTING FAILURE TO ACQUIRE NEW
EQUIPMENT CONTRIBUTED TO AN OVERALL NATIONWIDE SHORTAGE OF FREIGHT CARS
THAT PREVENTED THE RAILROAD INDUSTRY FROM ADEQUATELY SERVING SHIPPERS. 
CAR-SERVICE RULES THAT WOULD TEND TO RESTORE INCENTIVE TO THE VARIOUS
ROADS TO AUGMENT THEIR SUPPLY OF FREIGHT CARS, EVEN AT THE TEMPORARY
EXPENSE OF OPTIMUM UTILIZATION OF THE EXISTING FLEET OF FREIGHT CARS,
CONFORM UNDER THESE CIRCUMSTANCES TO THE STATUTORY REQUIREMENT OF
REASONABLENESS. 

APPELLEES SUPPORT THEIR CLAIM THAT THE COMMISSION'S PROMULGATION OF
THESE RELATED TO THE RULES' CLAIMED ADVERSE EFFECT ON THE ABILITY OF
THE ROADS TO SERVE SHIPPERS.  THEY ATTACK THE ABSENCE OF A COMMISSION
FINDING AS TO THE FINANCIAL ABILITY OF ROADS INADEQUATELY SUPPLIED WITH
FREIGHT CARS TO PURCHASE NEW ONES, AND THEY CITE THE CONCEDED
IMPOSSIBILITY OF OBTAINING COMPLETE COMPLIANCE WITH THE RULES AS
ADDITIONAL EVIDENCE OF THEIR UNREASONABLENESS. 

THE COMMISSION'S ORDER DOES NOT REQUIRE ANY ROAD TO PURCHASE ANY
FREIGHT CARS.  IT ABRIDGES TO SOME EXTENT THE EXISTING PRACTICE AMONG
RAILROADS OF TREATING THE FREIGHT CARS THAT THEY OWN AS A POOL, AND FOR
THAT REASON MAY ULTIMATELY CAUSE ROADS THAT DO NOT HAVE AN ADEQUATE
SUPPLY OF FREIGHT CARS TO SERVE ON-LINE SHIPPERS TO BE LESS ABLE TO
SERVE SUCH SHIPPERS THAN THEY ARE NOW.  IF, AS A RESULT OF THIS FACT,
SUCH ROADS ARE PLACED UNDER ECONOMIC AND COMPETITIVE PRESSURE TO
ACQUIRE ADDITIONAL FREIGHT CARS, THERE IS CERTAINLY NO PRINCIPLE OF LAW
WE KNOW OF THAT WOULD REQUIRE THE COMMISSION TO PERMIT THEM TO AVOID
THIS ECONOMIC PRESSURE BY CONTINUING TO BORROW FREIGHT CARS ACQUIRED
AND OWNED BY OTHER LINES. 

THE COMMISSION, ACCEDING TO THE ARGUMENTS OF SHIPPERS AND RAILROADS
ON REHEARING, AGREED THAT MANDATORY TOTAL COMPLIANCE WITH THE RULES
PROMULGATED WOULD BE IMPOSSIBLE IN VIEW OF THE TREMENDOUS NUMBER OF
UNITS INVOLVED, AND, ACCORDINGLY A PROCEDURE BY WHICH EXCEPTIONS MIGHT
BE APPLIED FOR WAS ESTABLISHED.  HOW THE PROVISION FOR EXCEPTIONS WILL
BE ADMINISTERED IN PRACTICE IS A MATTER ABOUT WHICH WE COULD ONLY
SPECULATE AT PRESENT.  IT IS WELL ESTABLISHED THAT AN AGENCY'S
AUTHORITY TO PROCEED IN A COMPLEX AREA SUCH AS CAR-SERVICE REGULATION
BY MEANS OF RULES OF GENERAL APPLICATION ENTAILS A CONCOMITANT
AUTHORITY TO PROVIDE EXEMPTION PROCEDURES IN ORDER TO ALLOW FOR SPECIAL
CIRCUMSTANCES.  PERMIAN BASIN AREA RATE CASES, 390 U.S. 747, 784-786
(1968).  WHAT BEARING ANY OF THESE FACTORS MIGHT HAVE ON AN ACTION
UNDER THE PROVISIONS OF 49 U.S.C. 1 (17) FOR THE COLLECTION OF
PENALTIES FOR A VIOLATION OF THE RULES IN QUESTION IS A QUESTION BEST
DECIDED IN SUCH A PROCEEDING.  THE FACT THAT VIOLATION OF A RULE
PROMULGATED UNDER THE ESCH CAR SERVICE ACT MAY BE THE BASIS FOR A
PROCEEDING TO COLLECT A PENALTY DOES NOT EITHER EXPAND OR CONTRACT THE
STATUTORY DEFINITION OF "REASONABLE" FOUND IN THAT ACT. 

WHAT WE HAVE SAID THUS FAR IS ENOUGH TO INDICATE OUR VIEW THAT THERE
IS SUFFICIENT RELATIONSHIP BETWEEN THE COMMISSION'S CONCLUSIONS AND THE
FACTUAL BASES IN THE RECORD UPON WHICH IT RELIED TO SUBSTANTIVELY
SUPPORT THIS EXERCISE OF ITS AUTHORITY UNDER THE ESCH ACT.  APPELLEES
PRESS ON US AN ADDITIONAL CLAIM THAT THE COMMISSION FAILED TO COMPLY
WITH THE PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 551
ET SEQ., CITING BURLINGTON TRUCK LINES V. UNITED STATES 371 U.S. 156
(1962), AND SECRETARY OF AGRICULTURE V. UNITED STATES, 347 U.S. 645
(1954).  BURLINGTON TRUCK LINES IS CLEARLY INAPPOSITE, HOWEVER, SINCE
IN THAT CASE THE COURT WAS DEALING WITH ADJUDICATION, NOT RULEMAKING. 
IN CRITICIZING THE COMMISSION'S ACTION THERE, THE COURT SAID THAT "THE
ADMINISTRATIVE PROCEDURE ACT WILL NOT PERMIT US TO ACCEPT SUCH
ADJUDICATORY PRACTICE," 371 U.S.,AT 167.  IN SECRETARY OF AGRICULTURE
V. UNITED STATES, SUPRA, THE COURT REVIEWED THE COMMISSION'S ACTION,
NOT UNDER THE ADMINISTRATIVE PROCEDURE ACT, BUT ON THE BASIS OF ITS
PRIOR CASES ESTABLISHING THE STANDARD FOR JUDICIAL REVIEW OF AGENCY
ACTION.  COMMENTING THAT "(IN DEALING WITH TECHNICAL AND COMPLEX
MATTERS LIKE THESE, THE COMMISSION MUST NECESSARILY HAVE WIDE
DISCRETION IN FORMULATING APPROPRIATE SOLUTIONS," THE COURT WENT ON TO
CONCLUDE THAT THE COMMISSION "HAS NOT ADEQUATELY EXPLAINED ITS
DEPARTURE FROM PRIOR NORMS AND HAS NOT SUFFICIENTLY SPELLED OUT THE
LEGAL BASIS OF ITS DECISION."  347 U.S.,AT 652-653.  FOR THE REASONS
PREVIOUSLY STATED, WE FIND NO SUCH INFIRMITIES HERE. 

THIS COURT HAS HELD THAT THE ADMINISTRATIVE PROCEDURE ACT APPLIES TO
PROCEEDINGS BEFORE THE INTERSTATE COMMERCE COMMISSION.  MINNEAPOLIS &
ST. LOUIS R. CO. V. UNITED STATES, 361 U.S. 173, 192 (1959).  APPELLEES
CLAIM THAT THE COMMISSION'S PROCEDURE HERE DEPARTED FROM THE PROVISIONS
OF 5 U.S.C. 556 AND 557 OF THE ACT.  THOSE SECTIONS, HOWEVER, GOVERN A
RULEMAKING PROCEEDING ONLY WHEN 5 U.S.C. 553 SO REQUIRES.  THE LATTER
PROVISIONS OF 556 AND 557 ONLY "(WHEN RULES ARE REQUIRED BY STATUTE TO
BE MADE ON THE RECORD AFTER OPPORTUNITY FOR AN AGENCY HEARING . . . "
THE ESCH ACT, AUTHORIZING THE COMMISSION "AFTER HEARING, ON A COMPLAINT
OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, (TO) ESTABLISH REASONABLE
RULES, REGULATIONS, AND PRACTICES WITH RESPECT TO CAR SERVICE . . . ,"
49 U.S.C. 1 (14)(A), DOES NOT REQUIRE THAT SUCH RULES "BE MADE ON THE
RECORD."  5 U.S.C. 553.  THAT DISTINCTION IS DETERMINATIVE FOR THIS
CASE.  "A GOOD DEAL OF SIGNIFICANCE LIES IN THE FACT THAT SOME STATUTES
DO EXPRESSLY REQUIRE DETERMINATIONS ON THE RECORD."  2 K. DAVIS,
ADMINISTRATIVE LAW TREATISE 13.08, P. 225 (1958).  SECTION 556 AND 557
NEED BE APPLIED "ONLY WHERE THE AGENCY STATUTE, IN ADDITION TO
PROVIDING A HEARING, PRESCRIBED EXPLICITLY THAT IT BE 'ON THE
RECORD.'"  SIEGEL V. ATOMIC ENERGY COMM'N, 130 U.S. APP. D.C. 112, 115
N. 9, 344 F.2D 497, 500 N. 9 (1965).  CF. FIRST NATIONAL BANK V. FIRST
FEDERAL SAVINGS & LOAN ASSN., 96 U.S.APP.D.C. 194, 225 F.2D 33 (1955). 
WE DO NOT SUGGEST THAT ONLY THE PRECISE WORDS "ON THE RECORD" IN THE
APPLICABLE STATUTE WILL SUFFICE TO MAKE SECS. 556 AND 557 APPLICABLE TO
RULEMAKING PROCEEDINGS, BUT WE DO HOLD THAT THE LANGUAGE OF THE ESCH
CAR SERVICE ACT IS INSUFFICIENT TO INVOKE THESE SECTIONS. 

BECAUSE THE PROCEEDINGS UNDER REVIEW WERE AN EXERCISE OF LEGISLATIVE
RULEMAKING POWER RATHER THAN ADJUDICATORY HEARINGS AS IN WONG YANG SUNG
V. MCGRATH, 339 U.S. 33 (1950), AND OHIO BELL TELEPHONE CO. V. PUBLIC
UTILITIES COMM'N 301 U.S. 292 (1937), AND BECAUSE 49 U.S.C. 1 (14)(A)
DOES NOT REQUIRE A DETERMINATION "ON THE RECORD," THE PROVISIONS OF 5
U.S.C. 556 AND 557 WERE INAPPLICABLE. 

THIS PROCEEDING, THEREFORE, WAS GOVERNED BY THE PROVISIONS OF 5
U.S.C. SEC. 553 OF THE ADMINISTRATIVE PROCEDURE ACT, REQUIRING
BASICALLY THAT NOTICE OF PROPOSED RULEMAKING SHALL BE PUBLISHED IN THE
FEDERAL REGISTER, THAT AFTER NOTICE THE AGENCY GIVE INTERESTED PERSONS
AN OPPORTUNITY TO PARTICIPATE IN THE RULEMAKING THROUGH APPROPRIATE
SUBMISSIONS, AND THAT AFTER CONSIDERATION OF THE RECORD SO MADE THE
AGENCY SHALL INCORPORATE IN THE RULES ADOPTED A CONCISE GENERAL
STATEMENT OF THEIR BASIS AND PURPOSE.  /5/  THE "FINDINGS" AND
"CONCLUSIONS" EMBODIES IN THE COMMISSION'S REPORT FULLY COMPLY WITH
THESE REQUIREMENTS, AND NOTHING MORE WAS REQUIRED BY THE ADMINISTRATIVE
PROCEDURE ACT.     WE CONCLUDE THAT THE COMMISSION'S ACTION IN
PROMULGATING THESE RULES WAS SUBSTANTIVELY AUTHORIZED BY THE ESCH ACT
AND PROCEDURALLY ACCEPTABLE UNDER THE ADMINISTRATIVE PROCEDURE ACT. 
THE JUDGMENT OF THE DISTRICT COURT MUST THEREFORE BE

   REVERSED. 

/1/  "RULE 1.  FOREIGN CARS, EMPTY AT A JUNCTION WITH THE HOME ROAD,
MUST BE:     "(A) LOADED AT THAT JUNCTION TO OR VIA HOME RAILS, OR, 

"(B) DELIVERED EMPTY AT THAT JUNCTION TO HOME ROAD, EXCEPT IN
INSTANCES WHERE RULE 6 HAS BEEN INVOKED, OR UNLESS OTHERWISE AGREED BY
ROADS INVOLVED. 

"RULE 2.  FOREIGN EMPTY CARS OTHER THAN THOSE COVERED IN RULE 1
SHALL BE: 

"(A) LOADED TO OR VIA OWNER'S RAILS 

"(B) LOADED TO A DESTINATION CLOSER TO OWNER'S RAILS THAN IS THE
LOADING STATION OR DELIVERED EMPTY TO A SHORT LINE OR SWITCH LOADING
ROAD FOR SUCH LOADING.  (CAR SELECTION CHART IS DESIGNED TO AID IN SO
SELECTING CARS FOR LOADING.) 

"(C) DELIVERED EMPTY TO THE HOME ROAD AT ANY JUNCTION SUBJECT TO
RULE 6. 

"(D) DELIVERED EMPTY TO THE ROAD FROM WHICH ORIGINALLY RECEIVED
UNDER LOAD, AT THE JUNCTION WHERE RECEIVED, EXCEPT THAT WHEN HANDLED IN
ROAD HAUL SERVICE, CARS OF DIRECT CONNECTION OWNERSHIP MAY NOT BE
DELIVERED EMPTY TO A ROAD WHICH DOES NOT HAVE A DIRECT CONNECTION WITH
THE CAR OWNER. 

"(E) RETURNED EMPTY TO THE DELIVERING ROAD WHEN HANDLED ONLY IN
SWITCHING SERVICE."  JURISDICTIONAL STATEMENT 64. 

/2/  335 I.C.C. 264, 293 (1969). 

/3/  "RULE 19-- EXCEPTIONS 

"EXCEPTIONS TO THE RULES (PRESCRIBED BY THE INTERSTATE COMMERCE
COMMISSION FOR MANDATORY OBSERVANCE) FOR THE PURPOSE OF FURTHER
IMPROVING CAR SUPPLY AND UTILIZATION, INCREASING AVAILABILITY OF CARS
TO THEIR OWNERS, IMPROVING THE EFFICIENCY OF RAILROAD OPERATIONS, OR
ALLEVIATING INEQUITIES OR HARDSHIPS, MAY BE AUTHORIZED BY THE DIRECTOR
OR ASSISTANT DIRECTOR OF THE BUREAU OF OPERATIONS, INTERSTATE COMMERCE
COMMISSION, WASHINGTON, D.C."  JURISDICTIONAL STATEMENT 172. 

/4/  THREE SEPARATE BRIEFS HAVE BEEN FILED HERE IN SUPPORT OF
APPELLEES, EACH OF WHICH UNDERSTANDABLY PRESENTS THE CASE FOR
AFFIRMANCE IN SLIGHTLY DIFFERING FORM, AND NO ONE OF WHICH COMPLETELY
ADOPTS THE REASONING OF THE DISTRICT COURT.  WE HAVE NOT FOUND IT
NECESSARY IN DECIDING THE CASE TO DEAL WITH EACH SEPARATE ARGUMENT IN
SUPPORT OF AFFIRMANCE, SINCE WE BELIEVE ALL OF THEM TO BE GENERALLY
SUBSUMED UNDER THOSE CLAIMS WITH WHICH WE DEAL. 

/5/  49 U.S.C. 1 (14)(A) LIKEWISE REQUIRES THE COMMISSION TO CONDUCT
A HEARING BEFORE PROMULGATING RULES. 

SAMUEL HUNTINGTON ARGUED THE CAUSE FOR THE UNITED STATES ET AL. WITH
HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL MCLAREN, ACTING ASSISTANT ATTORNEY GENERAL COMEGYS, FRITZ R.
KAHN, BETTY JO CHRISTIAN, AND JAMES F. TAO. 

MAX O. TRUITT, JR., AND WILLIAM M. MOLONEY ARGUED THE CAUSE FOR
APPELLEES.  WITH MR. TRUITT ON THE BRIEF FOR APPELLEES ALLEGHENY-LUDLUM
STEEL CORP. ET AL. WAS SALLY KATZEN.  WITH MR. MOLONEY ON THE BRIEF FOR
APPELLEE ASSOCIATION OF AMERICAN RAILROAD WERE JAMES I. COLLIER, JR.,
AND GORDON E. NEUENSCHWANDER.  JOHN F. DONELAN FILED A BRIEF FOR
APPELLEE NATIONAL INDUSTRIAL TRAFFIC LEAGUE. 
..END :







FIRST NAT. CITY BK. V. BANCO NACIONAL DE CUBA, 406 U.S. 759 


       FIRST NATIONAL CITY BANK V. BANCO NACIONAL DE CUBA

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 70-295.  ARGUED FEBRUARY 22, 1972-- DECIDED JUNE 7,

           1972 


THIS CASE INVOLVES A CLAIM BY RESPONDENT FOR EXCESS COLLATERAL IT HAD
PLEDGED WITH PETITIONER TO SECURE A LOAN, AND A COUNTERCLAIM BY
PETITIONER FOR THAT EXCESS AS AN OFFSET AGAINST THE VALUE OF
PETITIONER'S PROPERTY IN CUBA EXPROPRIATED BY CUBA WITHOUT
COMPENSATION.  THE DISTRICT COURT RECOGNIZED THAT THIS COURT'S DECISION
IN BANCO NACIONAL DE CUBA V. SABBATINO, 376 U.S. 398, HOLDING THAT
GENERALLY THE COURTS OF ONE NATION WILL NOT SIT IN JUDGMENT ON THE ACTS
OF ANOTHER NATION WITHIN THE LATTER'S TERRITORY (ACT OF STATE DOCTRINE)
WOULD BAR ASSERTION OF THE COUNTERCLAIM BUT CONCLUDED THAT PAST
SABBATINO CONGRESSIONAL ENACTMENTS HAD IN EFFECT OVERRULED THAT
DECISION.  THE COURT ISSUED SUMMARY JUDGMENT FOR PETITIONER ON ALL
ISSUES EXCEPT THE AMOUNT AVAILABLE FOR POSSIBLE SETOFF.  THE COURT OF
APPEALS REVERSED, HOLDING THAT SABBATINO BARRED ASSERTION OF THE
COUNTERCLAIM.  HELD:  THE JUDGMENT IS REVERSED.  PP. 762-776. 

MR. JUSTICE REHNQUIST, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
WHITE, CONCLUDED THAT SINCE THE EXECUTIVE BRANCH, WHICH IS CHARGED WITH
THE PRIMARY RESPONSIBILITY FOR THE CONDUCT OF FOREIGN AFFAIRS, HAS
(CONTRARY TO THE POSITION IT TOOK IN SABBATINO) EXPRESSLY REPRESENTED
TO THE COURT THAT THE APPLICATION OF THE ACT OF STATE DOCTRINE IN THIS
CASE WOULD NOT ADVANCE THE INTERESTS OF AMERICAN FOREIGN POLICY, THE
DECISION IN BERNSTEIN V. N.V. NEDERLANDSCHE-AMERIKAANSCHE, 210 F.2D
375, SHOULD BE ADOPTED AND APPROVED, THUS PERMITTING JUDICIAL
EXAMINATION OF THE LEGAL ISSUES RAISED BY THE ACT OF A FOREIGN
SOVEREIGN WITHIN ITS OWN TERRITORY.  PP. 762-770. 

MR. JUSTICE DOUGLAS CONCLUDED THAT THE CENTRAL ISSUE IN THIS CASE IS
GOVERNED BY NATIONAL CITY BANK V. REPUBLIC OF CHINA, 348 U.S. 356
(HOLDING THAT A SOVEREIGN'S CLAIM MAY BE OFFSET BY A COUNTERCLAIM OR
SETOFF), RATHER THAN BY THE BERNSTEIN EXCEPTION TO SABBATINO, AND
ACCORDINGLY WOULD ALLOW THE SETOFF UP TO THE AMOUNT OF RESPONDENT'S
CLAIM.  PP. 770-773. 

MR. JUSTICE POWELL, BELIEVING THAT SABBATINO'S BROAD HOLDING WAS NOT
COMPELLED BY THE PRINCIPLES UNDERLYING THE ACT OF STATE DOCTRINE,
CONCLUDED THAT FEDERAL COURTS HAVE AN OBLIGATION TO HEAR CASES SUCH AS
THIS ONE AND TO APPLY APPLICABLE INTERNATIONAL LAW.  PP. 773-776. 

REHNQUIST, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION IN WHICH BURGER, C. J., AND WHITE J., JOINED DOUGLAS, J., FILED
AN OPINION CONCURRING IN THE RESULT, POST, P. 770.  POWELL, J., FILED
AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 773.  BRENNAN, J.,
FILED A DISSENTING OPINION IN WHICH STEWART, MARSHALL, AND BLACKMUN,
JJ., JOINED POST, P. 776. 

MR. JUSTICE REHNQUIST ANNOUNCED THE JUDGMENT OF THE COURT, AND
DELIVERED AN OPINION IN WHICH THE CHIEF JUSTICE AND MR. JUSTICE WHITE
JOIN. 

IN JULY 1958, PETITIONER LOANED THE SUM OF $15 MILLION TO A
PREDECESSOR OF RESPONDENT.  THE LOAN WAS SECURED BY A PLEDGE OF UNITED
STATES GOVERNMENT BONDS.  THE LOAN WAS RENEWED THE FOLLOWING YEAR, AND
IN 1960 $5 MILLION WAS REPAID, THE $10 MILLION BALANCE WAS RENEWED FOR
ONE YEAR, AND COLLATERAL EQUAL TO THE VALUE OF THE PORTION REPAID WAS
RELEASED BY PETITIONER. 

MEANWHILE, ON JANUARY 1, 1959, THE CASTRO GOVERNMENT CAME TO POWER
IN CUBA.  ON SEPTEMBER 16, 1960, THE CUBAN MILITIA, ALLEGEDLY PURSUANT
TO DECREES OF THE CASTRO GOVERNMENT, SEIZED ALL OF THE BRANCHES OF
PETITIONER LOCATED IN CUBA.  A WEEK LATER THE BANK RETALIATED BY
SELLING THE COLLATERAL SECURING THE LOAN, AND APPLYING THE PROCEEDS OF
THE SALE TO REPAYMENT OF THE PRINCIPAL AND UNPAID INTEREST.  PETITIONER
CONCEDES THAT AN EXCESS OF AT LEAST $1.8 MILLION OVER AND ABOVE
PRINCIPAL AND UNPAID INTEREST WAS REALIZED FROM THE SALE OF THE
COLLATERAL.  RESPONDENT SUED PETITIONER IN THE FEDERAL DISTRICT COURT
TO RECOVER THIS EXCESS, AND PETITIONER, BY WAY OF SETOFF AND
COUNTERCLAIM, ASSERTED THE RIGHT TO RECOVER DAMAGES AS A RESULT OF THE
EXPROPRIATION OF ITS PROPERTY IN CUBA. 

THE DISTRICT COURT RECOGNIZED THAT OUR DECISION IN BANCO NACIONAL DE
CUBA V. SABBATINO, 376 U.S. 398 (1964), HOLDING THAT GENERALLY THE
COURTS OF ONE NATION WILL NOT SIT IN JUDGMENT ON THE ACTS OF ANOTHER
NATION WITHIN ITS OWN TERRITORY WOULD BAR THE ASSERTION OF THE
COUNTERCLAIM, BUT IT FURTHER HELD THAT CONGRESSIONAL ENACTMENTS SINCE
THE DECISION IN SABBATINO HAD "FOR ALL PRACTICAL PURPOSES" OVERRULED
THAT CASE.  FOLLOWING SUMMARY JUDGMENT IN FAVOR THE THE PETITIONER IN
THIS DISTRICT COURT ON ALL ISSUES EXCEPT THE AMOUNT BY WHICH THE
PROCEEDS OF THE SALE OF COLLATERAL EXCEEDED THE AMOUNT THAT COULD
PROPERLY BE APPLIED TO THE LOAN BY PETITIONER, THAT PARTIES STIPULATED
THAT IN ANY EVENT THIS DIFFERENCE WAS LESS THAN THE DAMAGES THAT
PETITIONER COULD PROVE IN SUPPORT OF ITS EXPROPRIATION CLAIM IF THAT
CLAIM WERE ALLOWED.  PETITIONER THEN WAIVED ANY RECOVERY ON ITS
COUNTERCLAIM OVER AND ABOVE THE AMOUNT RECOVERABLE BY RESPONDENT ON ITS
COMPLAINT, AND THE DISTRICT COURT THEN RENDERED JUDGMENT DISMISSING
RESPONDENT'S COMPLAINT ON THE MERITS. 

ON APPEAL, THE COURT OF APPEALS FOR THE SECOND CIRCUIT HELD THAT THE
CONGRESSIONAL ENACTMENTS RELIED UPON BY THE DISTRICT COURT DID NOT
GOVERN THIS CASE, AND THAT OUR DECISION IN SABBATINO BARRED THE
ASSERTION OF PETITIONER'S COUNTERCLAIM.  WE GRANTED CERTIORARI AND
VACATED THE JUDGMENT OF THE COURT OF APPEALS FOR CONSIDERATION OF THE
VIEWS OF THE DEPARTMENT OF STATE WHICH HAD BEEN FURNISHED TO US
FOLLOWING THE FILING OF THE PETITION FOR CERTIORARI.  400 U.S. 1019
(1971).  UPON RECONSIDERATION, THE COURT OF APPEALS BY A DIVIDED VOTE
ADHERED TO ITS EARLIER DECISION.  WE AGAIN GRANTED CERTIORARI.  404
U.S. 820 (1971). 

WE MUST HERE DECIDE WHETHER, IN VIEW OF THE SUBSTANTIAL DIFFERENCE
BETWEEN THE POSITION TAKEN IN THIS CASE BY THE EXECUTIVE BRANCH AND
THAT WHICH IT TOOK IN SABBATINO, THE ACT OF STATE DOCTRINE PREVENTS
PETITIONER FROM LITIGATING ITS COUNTERCLAIM ON THE MERITS.  WE HOLD
THAT IT DOES NOT. 

THE SEPARATE LINES OF CASES ENUNCIATING BOTH THE ACT OF STATE AND
SOVEREIGN IMMUNITY DOCTRINES HAVE A COMMON SOURCE IN THE CASE OF THE
SCHOONER EXCHANGE V. M'FADDON, 7 CRANCH 116, 146 (1812).  THERE CHIEF
JUSTICE MARSHALL STATED THE GENERAL PRINCIPLE OF SOVEREIGN IMMUNITY:
SOVEREIGNS ARE NOT PRESUMED WITHOUT EXPLICIT DECLARATION TO HAVE OPENED
THEIR TRIBUNALS TO SUITS AGAINST OTHER SOVEREIGNS.  YET THE POLICY
CONSIDERATIONS AT THE FOOT OF THIS FUNDAMENTAL PRINCIPLE ARE IN LARGE
PART ALSO THE UNDERPINNINGS OF THE ACT OF STATE DOCTRINE.  THE CHIEF
JUSTICE OBSERVED: 

     "THE ARGUMENTS IN FAVOR OF THIS OPINION WHICH HAVE BEEN DRAWN

  FROM THE GENERAL INABILITY OF THE JUDICIAL POWER TO ENFORCE ITS

  DECISIONS IN CASES OF THIS DESCRIPTION, FROM THE CONSIDERATION,

  THAT THE SOVEREIGN POWER OF THE NATION IS ALONE COMPETENT TO

  AVENGE WRONGS COMMITTED BY A SOVEREIGN, THAT THE QUESTIONS TO

  WHICH SUCH WRONGS GIVE BIRTH ARE RATHER QUESTIONS OF POLICY THAN

  OF LAW, THAT THEY ARE FOR DIPLOMATIC, RATHER THAN LEGAL

  DISCUSSION, ARE OF GREAT WEIGHT, AND MERIT SERIOUS ATTENTION," 

THUS, BOTH THE ACT OF STATE AND SOVEREIGN IMMUNITY DOCTRINES ARE
JUDICIALLY CREATED TO EFFECTUATE GENERAL NOTIONS OF COMITY AMONG
NATIONS AND AMONG THE RESPECTIVE BRANCHES OF THE FEDERAL GOVERNMENT. 
THE HISTORY AND THE LEGAL BASIS OF THE ACT OF STATE DOCTRINE ARE
TREATED COMPREHENSIVELY IN THE COURT'S OPINION IN SABBATINO, SUPRA.
THE COURT THERE CITED CHIEF JUSTICE FULLER'S "CLASSIC AMERICAN
STATEMENT" OF THE DOCTRINE, FOUND IN UNDERHILL V. HERNANDEZ, 168 U.S.
250, 252 (1897): 

"EVERY SOVEREIGN STATE IS BOUND TO RESPECT THE INDEPENDENCE OF

  EVERY OTHER SOVEREIGN STATE, AND THE COURTS OF ONE COUNTRY WILL

  NOT SIT IN JUDGMENT ON THE ACTS OF THE GOVERNMENT OF ANOTHER DONE

  WITHIN ITS OWN TERRITORY.  REDRESS OF GRIEVANCES BY REASON OF

  SUCH ACTS MUST BE OBTAINED THROUGH THE MEANS OPEN TO BE AVAILED

  OF BY SOVEREIGN POWERS AS BETWEEN THEMSELVES." 

THE ACT OF STATE DOCTRINE REPRESENTS AN EXCEPTION TO THE GENERAL
RULE THAT A COURT OF THE UNITED STATES, WHERE APPROPRIATE
JURISDICTIONAL STANDARDS ARE MET, WILL DECIDE CASES BEFORE IT BY
CHOOSING THE RULES APPROPRIATE FOR DECISION FROM AMONG VARIOUS SOURCES
OF LAW INCLUDING INTERNATIONAL LAW.  THE PAQUETE HABANA, 175 U.S. 677
(1900).  THE DOCTRINE PRECLUDES ANY REVIEW WHATEVER OF THE ACTS OF THE
GOVERNMENT OF ONE SOVEREIGN STATE DONE WITHIN ITS OWN TERRITORY BY THE
COURTS OF ANOTHER SOVEREIGN STATE.  IT IS CLEAR, HOWEVER, FROM BOTH
HISTORY AND THE OPINIONS OF THIS COURT THAT THE DOCTRINE IS NOT AN
INFLEXIBLE ONE.  SPECIFICALLY, THE COURT IN SABBATINO DESCRIBED THE ACT
OF STATE DOCTRINE AS "A PRINCIPLE OF DECISION BINDING ON FEDERAL AND
STATE COURTS ALIKE BUT COMPELLED BY NEITHER INTERNATIONAL LAW NOR THE
CONSTITUTION,"  376 U.S.,AT 427, AND THEN CONTINUED: 

"(ITS CONTINUING VITALITY DEPENDS ON ITS CAPACITY TO REFLECT THE
PROPER DISTRIBUTION OF FUNCTIONS BETWEEN THE JUDICIAL AND POLITICAL
BRANCHES OF THE GOVERNMENT ON MATTERS BEARING UPON FOREIGN AFFAIRS." 
ID., AT 427-428. 

IN SABBATINO, THE EXECUTIVE BRANCH OF THIS GOVERNMENT SPEAKING
THROUGH THE DEPARTMENT OF STATE, ADVISED ATTORNEYS FOR AMICI IN A VEIN
WHICH THE COURT DESCRIBED AS BEING "INTENDED TO REFLECT NO MORE THAN
THE DEPARMENT'S THEN WISH NOT TO MAKE ANY STATEMENT BEARING ON THIS
LITIGATION."  ID., AT 420.  THE UNITED STATES ARGUED BEFORE THIS COURT
IN SABBATINO THAT THE COURT SHOULD NOT "HOLD, FOR THE FIRST TIME, THAT
EXECUTIVE SILENCE REGARDING THE ACT OF STATE DOCTRINE IS EQUIVALENT TO
EXECUTIVE APPROVAL OF JUDICIAL INQUIRY INTO THE FOREIGN ACT." 

IN THE CASE NOW BEFORE US, THE EXECUTIVE BRANCH HAS TAKEN A QUITE
DIFFERENT POSITION.  THE LEGAL ADVISER OF THE DEPARTMENT OF STATE
ADVISED THIS COURT ON NOVEMBER 17, 1970, THAT AS A MATTER OF PRINCIPLE
WHERE THE EXECUTIVE PUBLICLY ADVISES THE COURT THAT THE ACT OF STATE
DOCTRINE NEED NOT BE APPLIED, THE COURT SHOULD PROCEED TO EXAMINE THE
LEGAL ISSUES RAISED BY THE ACT OF A FOREIGN SOVEREIGN WITHIN ITS OWN
TERRITORY AS IT WOULD ANY OTHER LEGAL QUESTION BEFORE IT.  HIS LETTER
REFERS TO THE DECISION OF THE COURT BELOW IN BERNSTEIN V. N.V.
NEDERLANDSCHE-AMERIKAANSCHE, 210 F.2D 375 (CA2 1954), AS REPRESENTING A
JUDICIAL RECOGNITION OF SUCH A PRINCIPLE, AND SUGGESTS THAT THE
APPLICABILITY OF THE PRINCIPLE WAS NOT LIMITED TO THE BERNSTEIN CASE. 
THE LEGAL ADVISER'S LETTER THEN GOES ON TO STATE: 

     "THE DEPARTMENT OF STATE BELIEVES THAT THE ACT OF STATE

  DOCTRINE SHOULD NOT BE APPLIED TO BAR CONSIDERATION OF A

  DEFENDANT'S COUNTERCLAIM OR SET-OFF AGAINST THE GOVERNMENT OF

  CUBA IN THIS OR LIKE CASES." 

THE QUESTION THAT WE MUST NOW DECIDE IS WHETHER THE SO-CALLED
BERNSTEIN EXCEPTION, TO THE ACT OF STATE DOCTRINE SHOULD BE RECOGNIZED
IN THE CONTEXT OF THE FACTS BEFORE THE COURT.  IN SABBATINO, THE COURT
SAID: 

     "THIS COURT HAS NEVER HAD OCCASION TO PASS UPON THE SO-CALLED

  BERNSTEIN EXCEPTION, NOR NEED IT DO SO NOW."  376 U.S.,AT 420. 

THE ACT OF STATE DOCTRINE, LIKE THE DOCTRINE OF IMMUNITY FOR FOREIGN
SOVEREIGNS, HAS ITS ROOTS, NOT IN THE CONSTITUTION, BUT IN THE NOTION
OF COMITY BETWEEN INDEPENDENT SOVEREIGNS.  SABBATINO, SUPRA, AT 438;
NATIONAL CITY BANK V. REPUBLIC OF CHINA, 348 U.S. 356 (1955); THE
SCHOONER EXCHANGE V. M'FADDON, 7 CRANCH 116 (1812).  /1/  IT IS ALSO
BUTTRESSED BY JUDICIAL DEFERENCE TO THE EXCLUSIVE POWER OF THE
EXECUTIVE OVER CONDUCT OF RELATIONS WITH OTHER SOVEREIGN POWERS AND THE
POWER OF THE SENATE TO ADVISE AND CONSENT ON THE MAKING OF TREATIES. 
THE ISSUES PRESENTED BY ITS INVOCATION ARE THEREFORE QUITE DISSIMILAR
TO THOSE RAISED IN ZSCHERNIG V. MILLER, 389 U.S. 429 (1968), WHERE THE
COURT STRUCK DOWN AN OREGON STATUTE THAT WAS HELD TO BE "AN INTRUSION
BY THE STATE INTO THE FIELD OF FOREIGN AFFAIRS WHICH THE CONSTITUTION
ENTRUSTS TO THE PRESIDENT AND THE CONGRESS."  ID., AT 432. 

THE LINE OF CASES FROM THIS COURT ESTABLISHING THE ACT OF STATE
DOCTRINE JUSTIFIED ITS EXISTENCE PRIMARILY ON THE BASIS THAT JURIDICAL
REVIEW OF ACTS OF STATE OF A FOREIGN POWER COULD EMBARRASS THE CONDUCT
OF FOREIGN RELATIONS BY THE POLITICAL BRANCHES OF THE GOVERNMENT.  THE
COURT'S OPINION IN UNDERHILL V. HERNANDEZ, 168 U.S. 250 (1897),
STRESSED THE FACT THAT THE REVOLUTIONARY GOVERNMENT OF VENEZUELA HAD
BEEN RECOGNIZED BY THE UNITED STATES.  IN OETJEN V. CENTRAL LEATHER
CO., 246 U.S. 297, 302 (1918), THE COURT WAS EXPLICIT: 

     "THE CONDUCT OF THE FOREIGN RELATIONS OF OUR GOVERNMENT IS

  COMMITTED BY THE CONSTITUTION TO THE EXECUTIVE AND LEGISLATIVE--

  'THE POLITICAL'-- DEPARTMENTS OF THE GOVERNMENT, AND THE

  PROPRIETY OF WHAT MAY BE DONE IN THE EXERCISE OF THIS POLITICAL

 POWER IS NOT SUBJECT TO JUDICIAL INQUIRY OR DECISION . . . IT HAS

  BEEN SPECIFICALLY DECIDED THAT 'WHO IS THE SOVEREIGN, DE JURE OR

  DE FACTO, OF A TERRITORY IS NOT A JUDICIAL BUT IS A POLITICAL

  QUESTION, THE DETERMINATION OF WHICH BY THE LEGISLATIVE AND

  EXECUTIVE DEPARTMENTS OF ANY GOVERNMENT CONCLUSIVELY BINDS THE

  JUDGES, AS WELL AS ALL OTHER OFFICERS, CITIZENS AND SUBJECTS OF

  THAT GOVERNMENT . . . '" 

UNITED STATES V. BELMONT, 301 U.S. 324 (1937), IS ANOTHER CASE THAT
EMPHASIZED THE EXCLUSIVE COMPETENCE OF THE EXECUTIVE BRANCH IN THE
FIELD OF FOREIGN AFFAIRS.  /2/  A YEAR EARLIER, THE COURT IN UNITED
STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304, 319 (1936), HAD QUOTED
WITH APPROVAL THE STATEMENT OF JOHN MARSHALL WHEN HE WAS A MEMBER OF
THE HOUSE OF REPRESENTATIVES DEALING WITH THIS SAME SUBJECT: 

     "'THE PRESIDENT IS THE SOLD ORGAN OF THE NATION IN ITS
EXTERNAL

  RELATIONS, AND ITS SOLE REPRESENTATIVE WITH FOREIGN NATIONS.'" 

THE OPINION OF SCRUTTON, L.J., IN LUTHER V. JAMES SAGOR & CO., (1921)
3 K.B. 532, DESCRIBED IN SABBATINO AS A "CLASSIC CASE" ARTICULATING THE
ACT OF STATE DOCTRINE "IN TERMS NOT UNLIKE THOSE OF THE UNITED STATES
CASES," STRONGLY SUGGESTS THAT UNDER THE ENGLISH DOCTRINE THE EXECUTIVE
BY REPRESENTATION TO THE COURTS MAY WAIVE THE APPLICATION OF THE
DOCTRINE: 

"BUT IT APPEARS A SERIOUS BREACH OF INTERNATIONAL COMITY, IF A STATE
IS RECOGNIZED AS A SOVEREIGN INDEPENDENT STATE, TO POSTULATE THAT ITS
LEGISLATION IS 'CONTRARY TO ESSENTIAL PRINCIPLES OF JUSTICE AND
MORALITY.'  SUCH AN ALLEGATION MIGHT WELL WITH A SUSCEPTIBLE FOREIGN
GOVERNMENT BECOME A CASUS BELLI; AND SHOULD IN MY VIEW BE THE ACTION OF
THE SOVEREIGN THROUGH HIS MINISTERS, AND NOT OF THE JUDGES IN REFERENCE
TO A STATE WHICH THEIR SOVEREIGN HAS RECOGNIZED . . . THE
RESPONSIBILITY FOR RECOGNITION OR NON-RECOGNITION WITH THE CONSEQUENCES
OF EACH RESTS ON THE POLITICAL ADVISORS OF THE SOVEREIGN AND NOT ON THE
JUDGES."  ID., AT 559  

WE THINK THAT THE EXAMINATION OF THE FOREGOING CASES INDICATED THAT
THIS COURT HAS RECOGNIZED THE PRIMACY OF THE EXECUTIVE IN THE CONDUCT
OF FOREIGN RELATIONS QUITE AS EMPHATICALLY AS IT HAS RECOGNIZED THE ACT
OF STATE DOCTRINE.  THE COURT IN SABBATINO THROUGHOUT ITS OPINION
EMPHASIZED THE LEAD ROLE OF THE EXECUTIVE IN FOREIGN POLICY,
PARTICULARLY IN SEEKING REDRESS FOR AMERICAN NATIONALS WHO HAD BEEN THE
VICTIMS OF FOREIGN EXPROPRIATION, AND CONCLUDED THAT ANY EXCEPTION TO
THE ACT OF STATE DOCTRINE BASED ON A MERE SILENCE OR NEUTRALITY ON THE
PART OF THE EXECUTIVE MIGHT WELL LEAD TO A CONFLICT BETWEEN THE
EXECUTIVE AND JUDICIAL BRANCHES.  HERE, HOWEVER, THE EXECUTIVE BRANCH
HAS EXPRESSLY STATED THAT AN INFLEXIBLE APPLICATION OF THE ACT OF STATE
DOCTRINE BY THIS COURT WOULD NOT SERVE THE INTERESTS OF AMERICAN
FOREIGN POLICY. 

THE ACT OF STATE DOCTRINE IS GROUNDED ON JUDICIAL CONCERN THAT
APPLICATION OF CUSTOMARY PRINCIPLES OF LAW TO JUDGE THE ACTS OF A
FOREIGN SOVEREIGN MIGHT FRUSTRATE THE CONDUCT OF FOREIGN RELATIONS BY
THE POLITICAL BRANCHES OF THE GOVERNMENT.  WE CONCLUDE THAT WHERE THE
EXECUTIVE BRANCH, CHARGED AS IT IS WITH PRIMARY RESPONSIBILITY FOR THE
CONDUCT OF FOREIGN AFFAIRS, EXPRESSLY REPRESENTS TO THE COURT THAT
APPLICATION OF THE ACT OF STATE DOCTRINE WOULD NOT ADVANCE THE
INTERESTS OF AMERICAN FOREIGN POLICY, THAT DOCTRINE SHOULD NOT BE
APPLIED BY THE COURTS.  IN SO DOING, WE OF COURSE ADOPT AND APPROVE THE
SO-CALLED BERNSTEIN EXCEPTION TO THE ACT OF STATE DOCTRINE.  WE BELIEVE
THIS TO BE NO MORE THAN AN APPLICATION OF THE CLASSICAL COMMON-LAW
MAXIM THAT "(THE REASON OF THE LAW CEASING, THE LAW ITSELF ALSO CEASES"
(BLACK'S LAW DICTIONARY 288 (4TH ED. 1951)).     OUR HOLDING IS IN NO
SENSE AN ABDICATION OF THE JUDICIAL FUNCTION TO THE EXECUTIVE BRANCH. 
THE JUDICIAL POWER OF THE UNITED STATES EXTENDS TO THIS CASE, AND THE
JURISDICTIONAL STANDARDS ESTABLISHED BY CONGRESS FOR ADJUDICATION BY
THE FEDERAL COURTS HAVE BEEN MET BY THE PARTIES.  THE ONLY REASON FOR
NOT DECIDED THE CASE BY USE OF OTHERWISE APPLICABLE LEGAL PRINCIPLES
WOULD BE THE FEAR THAT LEGAL INTERPRETATION BY THE JUDICIARY OF THE ACT
OF A FOREIGN SOVEREIGN WITHIN ITS OWN TERRITORY MIGHT FRUSTRATE THE
CONDUCT OF THIS COUNTRY'S FOREIGN RELATIONS.  BUT THE BRANCH OF THE
GOVERNMENT RESPONSIBLE FOR THE CONDUCT OF THOSE FOREIGN RELATIONS HAS
ADVISED US THAT SUCH A CONSEQUENCE NEED NOT BE FEARED IN THIS CASE. 
THE JUDICIARY IS THEREFORE FREE TO DECIDE THE CASE WITHOUT THE
LIMITATIONS THAT WOULD OTHERWISE BE IMPOSED UPON IT BY THE JUDICIALLY
CREATED ACT OF STATE DOCTRINE. 

IT BEARS NOTING THAT THE RESULT WE REACH IS CONSONANT WITH THE
PRINCIPLES OF EQUITY SET FORTH BY THE COURT IN NATIONAL CITY BANK V.
REPUBLIC OF CHINA, 348 U.S. 356 (1955).  HERE RESPONDENT, CLAIMED BY
PETITIONER TO BE AN INSTRUMENT OF THE GOVERNMENT OF CUBA, HAS SOUGHT TO
COME INTO OUR COURTS AND SECURE AN ADJUDICATION IN ITS FAVOR, WITHOUT
SUBMITTING TO DECISION ON THE MERITS OF THE COUNTERCLAIM WHICH
PETITIONER ASSERTS AGAINST IT.  SPEAKING OF A CLOSELY ANALOGOUS
SITUATION IN REPUBLIC OF CHINA, SUPRA, THE COURT SAID: 

"WE HAVE A FOREIGN GOVERNMENT INVOKING OUR LAW BUT RESISTING A CLAIM
AGAINST IT WHICH FAIRLY WOULD CURTAIL ITS RECOVERY.  IT WANTS OUR LAW,
LIKE ANY OTHER LITIGANT, BUT IT WANTS OUR LAW FREE FROM THE CLAIMS OF
JUSTICE.  IT BECOMES VITAL, THEREFORE, TO EXAMINE THE EXTENT TO WHICH
THE CONSIDERATIONS WHICH LED THIS COURT TO BAR A SUIT AGAINST A
SOVEREIGN IN THE SCHOONER EXCHANGE ARE APPLICABLE HERE TO FORECLOSE A
COURT FROM DETERMINING, ACCORDING TO PREVAILING LAW, WHETHER THE
REPUBLIC OF CHINA'S CLAIMS AGAINST THE NATIONAL CITY BANK WOULD BE
UNJUSTLY ENFORCED BY DISREGARDING LEGITIMATE CLAIMS AGAINST THE
REPUBLIC OF CHINA.  AS EXPOUNDED IN THE SCHOONER EXCHANGE, THE DOCTRINE
IS ONE OF IMPLIED CONSENT BY THE TERRITORIAL SOVEREIGN TO EXEMPT THE
FOREIGN SOVEREIGN FROM ITS 'EXCLUSIVE AND ABSOLUTE' JURISDICTION, THE
IMPLICATION DERIVING FROM STANDARDS OF PUBLIC MORALITY, FAIR DEALING,
RECIPROCAL SELF-INTEREST, AND RESPECT FOR THE 'POWER AND DIGNITY' OF
THE FOREIGN SOVEREIGN."  ID., AT 361-362. 

THE ACT OF STATE DOCTRINE, AS REFLECTED IN THE CASES CULMINATING IN
SABBATINO, IS A JUDICIALLY ACCEPTED LIMITATION ON THE NORMAL
ADJUDICATIVE PROCESS OF THE COURTS, SPRINGING FROM THE THOROUGHLY SOUND
PRINCIPLE THAT ON OCCASION INDIVIDUAL LITIGANTS MAY HAVE TO FORGO
DECISION ON THE MERITS OF THEIR CLAIMS BECAUSE THE INVOLVEMENT OF THE
COURTS IN SUCH A DECISION MIGHT FRUSTRATE THE CONDUCT OF THE NATION'S
FOREIGN POLICY.  IT WOULD BE WHOLLY ILLOGICAL TO INSIST THAT SUCH A
RULE, FASHIONED BECAUSE OF FEAR THAT ADJUDICATION WOULD INTERFERE WITH
THE CONDUCT OF FOREIGN RELATIONS, BE APPLIED IN THE FACE OF AN
ASSURANCE FROM THAT BRANCH OF THE FEDERAL GOVERNMENT THAT CONDUCTS
FOREIGN RELATIONS THAT SUCH A RESULT WOULD NOT OBTAIN.  OUR HOLDING
CONFINES THE COURTS TO ADJUDICATION OF THE CASE BEFORE THEM, AND LEAVES
TO THE EXECUTIVE BRANCH THE CONDUCT OF FOREIGN RELATIONS.  IN SO DOING,
IT IS BOTH FAITHFUL TO THE PRINCIPLE OF SEPARATION OF POWERS AND
CONSISTENT WITH EARLIER CASES APPLYING THE ACT OF STATE DOCTRINE WHERE
WE LACKED THE SORT OF REPRESENTATION FROM THE EXECUTIVE BRANCH THAT WE
HAVE IN THIS CASE. 

WE THEREFORE REVERSE THE JUDGMENT OF THE COURT OF APPEALS, AND
REMAND THE CASE TO IT FOR CONSIDERATION OF RESPONDENT'S ALTERNATIVE
BASES OF ATTACK ON THE JUDGMENT OF THE DISTRICT COURT. 

              REVERSED AND REMANDED. 

/1/  IN THE LATTER CASE, SPEAKING OF SOVEREIGN IMMUNITY, CHIEF
JUSTICE MARSHALL SAID: 

"IT SEEMS THEN TO THE COURT, TO BE A PRINCIPLE OF PUBLIC LAW, THAT
NATIONAL SHIPS OF WAR, ENTERING THE PORT OF A FRIENDLY POWER OPEN FOR
THEIR RECEPTION, ARE TO BE CONSIDERED AS EXEMPTED BY THE CONSENT OF
THAT POWER FROM ITS JURISDICTION. 

"WITHOUT DOUBT, THE SOVEREIGN OF THE PLACE IS CAPABLE OF DESTROYING
THIS IMPLICATION.  HE MAY CLAIM AND EXERCISE JURISDICTION EITHER BY
EMPLOYING FORCE, OR BY SUBJECTING SUCH VESSELS TO THE ORDINARY
TRIBUNALS.  BUT UNTIL SUCH POWER BE EXERTED IN A MANNER NOT TO BE
MISUNDERSTOOD, THE SOVEREIGN CANNOT BE CONSIDERED AS HAVING IMPARTED TO
THE ORDINARY TRIBUNALS A JURISDICTION, WHICH IT WOULD BE A BREACH OF
FAITH TO EXERCISE."  7 CRANCH, AT 145-146. 

/2/  "GOVERNMENTAL POWER OVER EXTERNAL AFFAIRS IS NOT DISTRIBUTED,
BUT IS VESTED EXCLUSIVELY IN THE NATIONAL GOVERNMENT.  AND IN RESPECT
OF WHAT WAS DONE HERE, THE EXECUTIVE HAD AUTHORITY TO SPEAK AS THE SOLE
ORGAN OF THAT GOVERNMENT."  301 U.S.,AT 330. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE RESULT 

BANCO NACIONAL DE CUBA V. SABBATINO, 376 U.S. 398, DOES NOT CONTROL
THE CENTRAL ISSUE IN THE PRESENT CASE.  RATHER, IT IS GOVERNED BY
NATIONAL CITY BANK V. REPUBLIC OF CHINA, 348 U.S. 356. 

I START FROM THE PREMISE THAT THE DEFENDANT (PETITIONER) IN THE
PRESENT LITIGATION IS PROPERLY IN THE DISTRICT COURT.  RESPONDENT, WHO
BROUGHT THIS SUIT, IS FOR OUR PURPOSES THE SOVEREIGN STATE OF CUBA;
AND, APART FROM CASES WHERE ANOTHER NATION IS AT WAR WITH THE UNITED
STATES, IT IS SETTLED THAT SOVEREIGN STATES ARE ALLOWED TO SUE IN THE
COURTS OF THE UNITED STATES.  SEE BANCO NACIONAL DE CUBA V. SABBATINO,
SUPRA, AT 408-410. 

CUBA SUES HERE TO RECOVER THE DIFFERENCE BETWEEN A LOAN MADE BY
PETITIONER AND THE PROCEEDS OF A SALE OF THE COLLATERAL SECURING THE
LOAN.  THE EXCESS IS ALLEGEDLY ABOUT $1.8 MILLION.  PETITIONER SOUGHT
TO SET OFF AGAINST THAT AMOUNT CLAIMS ARISING OUT OF THE CONFISCATION
OF PETITIONER'S CUBAN PROPERTIES.  HOW MUCH THOSE SETOFFS WOULD BE, WE
DO NOT KNOW.  THE DISTRICT COURT RULED THAT THE AMOUNT OF THESE SETOFFS
"CANNOT BE DETERMINED ON THESE MOTIONS," 270 F.SUPP.  1004, 1011,
SAYING THAT THEY REPRESENTED "TRIABLE ISSUES OF FACT AND LAW."  IBID. 

I WOULD REVERSE THE COURT OF APPEALS AND AFFIRM THE DISTRICT COURT,
REMANDING THE CASE FOR TRIAL ON THE AMOUNT OF THE SETOFF AND I WOULD
ALLOW THE SETOFF UP TO THE AMOUNT OF RESPONDENT'S CLAIM. 

IT WAS RULED IN THE REPUBLIC OF CHINA CASE THAT S SOVEREIGN'S CLAIM
MAY BE CUT DOWN BY A COUNTERCLAIM OF SETOFF.  348 U.S., AT 364.  THE
SETOFF NEED NOT BE "BASED ON THE SUBJECT MATTER" OF THE CLAIM ASSERTED
IN THE STRICT SENSE.  THE TEST IS "THE CONSIDERATION OF AIR DEALING." 
ID., AT 365.  THE COURT SAID: 

"THE SHORT OF THE MATTER IS THAT WE ARE NOT DEALING WITH AN ATTEMPT
TO BRING A RECOGNIZED FOREIGN GOVERNMENT INTO ONE OF OUR COURTS AS A
DEFENDANT AND SUBJECT IT TO THE RULE OF LAW TO WHICH NONGOVERNMENTAL
OBLIGORS MUST BOW.  WE HAVE A FOREIGN GOVERNMENT INVOKING OUR LAW BUT
RESISTING A CLAIM AGAINST IT WHICH FAIRLY WOULD CURTAIL ITS RECOVERY. 
IT WANTS OUR LAW, LIKE ANY OTHER LITIGANT, BUT IT WANTS OUR LAW FREE
FROM THE CLAIMS OF JUSTICE.  IT BECOMES VITAL, THEREFORE, TO EXAMINE
THE EXTENT TO WHICH THE CONSIDERATIONS WHICH LED THIS COURT TO BAR A
SUIT AGAINST A SOVEREIGN IN THE SCHOONER EXCHANGE (7 CRANCH 116) ARE
APPLICABLE HERE TO FORECLOSE A COURT FROM DETERMINING, ACCORDING TO
PREVAILING LAW, WHETHER THE REPUBLIC OF CHINA'S CLAIM AGAINST THE
NATIONAL CITY BANK WOULD BE UNJUSTLY ENFORCED BY DISREGARDING
LEGITIMATE CLAIMS AGAINST THE REPUBLIC OF CHINA.  AS EXPOUNDED IN THE
SCHOONER EXCHANGE, THE DOCTRINE IS ONE OF IMPLIED CONSENT BY THE
TERRITORIAL SOVEREIGN TO EXEMPT THE FOREIGN SOVEREIGN FROM ITS
'EXCLUSIVE AND ABSOLUTE' JURISDICTION, THE IMPLICATION DERIVING FROM
STANDARDS OF PUBLIC MORALITY, FAIR DEALING, RECIPROCAL SELF-INTEREST,
AND RESPECT FOR THE 'POWER AND DIGNITY'  OF THE FOREIGN SOVEREIGN." 
ID., AT 361-362. 

IT WOULD OFFEND THE SENSIBILITIES OF NATIONS IF ONE COUNTRY, NOT AT
WAR WITH US, HAD OUR COURTHOUSE DOOR CLOSED TO IT.  IT WOULD ALSO
OFFEND OUR SENSIBILITIES IF CUBA COULD COLLECT THE AMOUNT OWED ON
LIQUIDATION OF THE COLLATERAL FOR THE LOAN AND NOT BE REQUIRED TO
ACCOUNT FOR ANY SETOFF.  TO ALLOW RECOVERY WITHOUT MORE WOULD PERMIT
CUBA TO HAVE ITS CAKE AND EAT IT TOO.  FAIR DEALING REQUIRES ALLOWANCE
OF THE SETOFF TO THE AMOUNT OF THE CLAIM ON WHICH THIS SUIT IS BROUGHT-
A PRECEPT THAT SHOULD SATISFY ANY SO-CALLED RATIONAL DECISION. 

IF THE AMOUNT OF THE SETOFF EXCEEDS THE ASSERTED CLAIM, THEN WE
WOULD HAVE A SABBATINO TYPE OF CASE.  THERE THE FUND IN CONTROVERSY WAS
THE PROCEEDS OF SUGAR WHICH OF WHO WAS THE RIGHTFUL CLAIMANT WAS A
"POLITICAL QUESTION," AS ITS RESOLUTION WOULD RESULT IN IDEOLOGICAL AND
POLITICAL CLASHES BETWEEN NATIONS WHICH MUST BE RESOLVED BY THE OTHER
BRANCHES OF GOVERNMENT.  /1/  WE WOULD HAVE THAT TYPE OF CONTROVERSY
HERE IF, AND TO THE EXTENT THAT, THE SETOFF ASSERTED EXCEEDS THE AMOUNT
OF CUBA'S CLAIM.  I WOULD DISALLOW THE JUDICIAL RESOLUTION OF THAT
DISPUTE FOR THE REASONS STATED IN SABBATINO AND BY MR. JUSTICE BRENNAN
IN THE INSTANT CASE.  AS HE STATES, THE EXECUTIVE BRANCH "CANNOT BY
SIMPLE STIPULATION CHANGE A POLITICAL QUESTION INTO A COGNIZABLE
CLAIM."  BUT I WOULD ALLOW THE SETOFF TO THE EXTENT OF THE CLAIM
ASSERTED BY CUBA BECAUSE CUBA IS THE ONE WHO ASKS OUR JUDICIAL AID IN
COLLECTING ITS DEBT FROM PETITIONER AND, AS THE REPUBLIC OF CHINA CASE
SAYS, "FAIL DEALING" REQUIRES RECOGNITION OF ANY COUNTERCLAIM OR SETOFF
THAT ELIMINATES OR REDUCES THAT CLAIM.  /2/  IT IS THAT PRINCIPLE, NOT
THE BERNSTEIN /3/  EXCEPTION, WHICH SHOULD GOVERN HERE.  OTHERWISE, THE
COURT BECOMES A MERE ERRAND BOY FOR THE EXECUTIVE BRANCH WHICH MAY
CHOOSE TO PICK SOME PEOPLE'S CHESTNUTS FROM THE FIRE, BUT NOT OTHERS'. 
/4/ 

/1/  A HISTORIC INSTANCE OF THE RESOLUTION OF SUCH A CONFLICT
ULTIMATELY ENFORCED BY JUDICIAL SANCTIONS IN UNITED STATES V. INK, 315
U.S. 203. 

/2/  CF. PONS V. REPUBLIC OF CUBA, 111 U.S.APP.D.C. 141, 294 F.2D
925. 

/3/  BERNSTEIN V. N.V. NEDERLANDSCHE-AMERIKAANSCHE, 210 F.2D 375. 

/4/  "THE HISTORY OF THE DOCTRINE INDICATE THAT ITS FUNCTION IS NOT
TO EFFECT UNQUESTIONING JUDICIAL DEFERENCE TO THE EXECUTIVE, BUT TO
ACHIEVE A RESULT UNDER WHICH DIPLOMATIC RATHER THAN JUDICIAL CHANNELS
ARE USED IN THE DISPOSITION OF CONTROVERSIES BETWEEN SOVEREIGNS." 
DELSON, THE ACT OF STATE DOCTRINE-- JUDICIAL DEFERENCE OR ABSTENTION? 
66 AM.J.INT'L L. 83, 84 (1972). 

MR. JUSTICE POWELL, CONCURRING IN THE JUDGMENT. 

ALTHOUGH I CONCUR IN THE JUDGMENT OF REVERSAL AND REMAND, MY REASONS
DIFFER FROM THOSE EXPRESSED BY MR. JUSTICE REHNQUIST AND MR. JUSTICE
DOUGLAS.  WHILE BANCO NACIONAL DE CUBA V. SABBATINO, 376 U.S. 398, 419
420 (1964), TECHNICALLY RESERVED THE QUESTION OF THE VALIDITY OF THE
BERNSTEIN EXCEPTION (BERNSTEIN V. N.V. NEDERLANDSCHE-AMERIKAANSCHE, 210
F.2D 375 (CA 2 1954), AS MR. JUSTICE BRENNAN NOTES IN HIS DISSENTING
OPINION, THE REASONING OF SABBATINO IMPLICITLY REJECTS THAT EXCEPTION. 
MOREOVER, I WOULD BE UNCOMFORTABLE WITH A DOCTRINE WHICH WOULD REQUIRE
THE JUDICIARY TO RECEIVE THE EXECUTIVE'S PERMISSION BEFORE INVOKING ITS
JURISDICTION.  SUCH A NOTION, IN THE NAME OF THE DOCTRINE OF SEPARATION
OF POWERS, SEEMS TO ME TO CONFLICT WITH WHAT VERY DOCTRINE. 

NOR DO I FIND NATIONAL CITY BANK V. REPUBLIC OF CHINA, 348 U.S. 356
(1955), TO BE DISPOSITIVE.  THE COURT THERE DEALT WITH THE QUESTION OF
JURISDICTION OVER THE PARTIES TO HEAR A COUNTERCLAIM ASSERTED AGAINST A
FOREIGN STATE SEEKING REDRESS IN OUR COURTS.  JURISDICTION DOES NOT
NECESSARILY IMPLY THAT A COURT MAY HEAR A COUNTERCLAIM WHICH WOULD
OTHERWISE BE NONJUSTICIABLE.  JURISDICTION AND JUSTICIABILITY ARE, IN
OTHER WORDS, DIFFERENT CONCEPTS.  ONE CONCERNS THE COURT'S POWER OVER
THE PARTIES; THE OTHER CONCERNS THE APPROPRIATENESS OF THE SUBJECT
MATTER FOR JUDICIAL RESOLUTION.  ALTHOUGH ATTRACTED BY THE JUSTNESS OF
THE RESULT HE REACHED, I FIND LITTLE SUPPORT FOR MR. JUSTICE DOUGLAS'
THEORY THAT THE COUNTERCLAIM IS JUSTICIABLE UP TO, BUT NOT FURTHER
THAN, THE POINT OF SETOFF. 

I NEVERTHELESS CONCUR IN THE JUDGMENT OF THE COURT BECAUSE I BELIEVE
THAT THE BROAD HOLDING OF SABBATINO /1/  WAS NOT COMPELLED BY THE
PRINCIPLES, AS EXPRESSED THEREIN, WHICH UNDERLIE THE ACT OF STATE
DOCTRINE.  AS MR. JUSTICE HARLAN STATED IN SABBATINO, THE ACT OF STATE
DOCTRINE IS NOT DICTATED EITHER BY "INTERNATIONAL LAW (OR) THE
CONSTITUTION," BUT IS BASED ON A JUDGMENT AS TO "THE PROPER
DISTRIBUTION OF FUNCTIONS BETWEEN THE JUDICIAL AND THE POLITICAL
BRANCHES OF THE GOVERNMENT ON MATTERS BEARING UPON FOREIGN AFFAIRS." 
376 U.S.,AT 427-428.  MOREOVER, AS NOTED IN SABBATINO, THERE WAS NO
INTENTION OF "LAYING DOWN OR AFFIRMING AN INFLEXIBLE AND ALL
ENCOMPASSING RULE . . . " ID., AT 428. 

I DO NOT DISAGREE WITH THESE PRINCIPLES, ONLY WITH THE BROAD WAY IN
WHICH SABBATINO APPLIED THEM.  HAD I BEEN A MEMBER OF THE SABBATINO
COURT, I PROBABLY WOULD HAVE JOINED THE DISSENTING OPINION OF MR.
JUSTICE WHITE.  THE BALANCING OF INTERESTS, RECOGNIZED AS APPROPRIATE
BY SABBATINO, REQUIRES A CAREFUL EXAMINATION OF THE FACTS IN EACH CASE
AND OF THE POSITION, IF ANY, TAKEN BY THE POLITICAL BRANCHES OF
GOVERNMENT.  I DO NOT AGREE, HOWEVER, THAT BALANCING THE FUNCTIONS OF
THE JUDICIARY AND THOSE OF THE POLITICAL BRANCHES COMPELS THE JUDICIARY
TO ESCHEW ACTING IN ALL CASES IN WHICH THE UNDERLYING ISSUE IS THE
VALIDITY OF EXPROPRIATION UNDER CUSTOMARY INTERNATIONAL LAW.  SUCH A
RESULT WOULD BE AN ABDICATION OF THE JUDICIARY'S RESPONSIBILITY TO
PERSONS WHO SEEK TO RESOLVE THEIR GRIEVANCES BY THE JUDICIAL PROCESS. 
NOR DO I THINK THE DOCTRINE OF SEPARATION OF POWERS DICTATES SUCH AN
ABDICATION.  TO SO ARGUE IS TO ASSUME THAT THERE IS NO SUCH THING AS
INTERNATIONAL LAW BUT ONLY INTERNATIONAL POLITICAL DISPUTES THAT CAN BE
RESOLVED ONLY BY THE EXERCISE OF POWER.  ADMITTEDLY, INTERNATIONAL
LEGAL DISPUTES ARE NOT AS SEPARABLE FROM POLITICS AS ARE DOMESTIC LEGAL
DISPUTES, ARE NOT AS SEPARABLE FROM POLITICS AS ARE DOMESTIC LEGAL
DISPUTES, BUT I AM NOT PREPARED TO SAY THAT INTERNATIONAL LAW MAY NEVER
BE DETERMINED AND APPLIED BY THE JUDICIARY WHERE THERE HAS BEEN AN "ACT
OF STATE."  /2/  UNTIL INTERNATIONAL TRIBUNALS COMMAND A WIDE
CONSTITUENCY, THE COURTS OF VARIOUS COUNTRIES AFFORD THE BEST MEANS FOR
THE DEVELOPMENT OF A RESPECTED BODY OF INTERNATIONAL LAW.  THERE IS
LESS HOPE FOR PROGRESS IN THIS LONG-NEGLECTED AREA IF THE RESOLUTION OF
ALL DISPUTES INVOLVING AN "ACT OF STATE" IS RELEGATED TO POLITICAL
RATHER THAN JUDICIAL PROCESSES. 

UNLESS IT APPEARS THAT AN EXERCISE OF JURISDICTION WOULD INTERFERE
WITH DELICATE FOREIGN RELATIONS CONDUCTED BY THE POLITICAL BRANCHES, I
CONCLUDE THAT FEDERAL COURTS HAVE AN OBLIGATION TO HEAR CASES SUCH AS
THIS.  THIS VIEW IS NOT INCONSISTENT WITH THE BASIC NOTION OF THE ACT
OF STATE DOCTRINE WHICH REQUIRES A BALANCING OF THE ROLES OF THE
JUDICIARY AND THE POLITICAL BRANCHES.  WHEN IT IS SHOWN THAT A CONFLICT
IN THOSE ROLES EXISTS, I BELIEVE THAT THE JUDICIARY SHOULD DEFER
BECAUSE, AS THE COURT SUGGESTED IN SABBATINO, THE RESOLUTION OF ONE
DISPUTE BY THE JUDICIARY MAY BE OUTWEIGHED BY THE POTENTIAL RESOLUTION
OF MULTIPLE DISPUTES BY THE POLITICAL BRANCHES. 

IN THIS CASE WHERE NO SUCH CONFLICT HAS BEEN SHOWN, I THINK THE
COURTS HAVE A DUTY TO DETERMINE AND APPLY THE APPLICABLE INTERNATIONAL
LAW.  I THEREFORE JOIN IN THE COURT'S DECISION TO REMAND THE CASE FOR
FURTHER PROCEEDINGS. 

/1/  THE HOLDING WAS "THAT THE JUDICIAL BRANCH WILL NOT EXAMINE THE
VALIDITY OF A TAKING OF PROPERTY WITHIN ITS OWN TERRITORY BY A FOREIGN
SOVEREIGN GOVERNMENT, EXTANT AND RECOGNIZED BY THIS COUNTRY AT THE TIME
OF SUIT, IN THE ABSENCE OF A TREATY OR OTHER UNAMBIGUOUS AGREEMENT
REGARDING CONTROLLING LEGAL PRINCIPLES, EVEN IF THE COMPLAINT ALLEGES
THAT THE TAKING VIOLATES CUSTOMARY INTERNATIONAL LAW."  376 U.S.,AT
428. 

/2/  MR. JUSTICE WHITE'S DISSENTING OPINION IN SABBATINO, CITING
CASES FROM ENGLAND, THE NETHERLANDS, GERMANY, JAPAN, ITALY, AND FRANCE,
STATES: 

"NO OTHER CIVILIZED COUNTRY HAS FOUND SUCH A RIGID RULE (AS THAT
ANNOUNCED IN SABBATINO) NECESSARY FOR THE SURVIVAL OF THE EXECUTIVE
BRANCH OF ITS GOVERNMENT; THE EXECUTIVE OF NO OTHER GOVERNMENT SEEMS TO
REQUIRE SUCH INSULATION FROM INTERNATIONAL LAW ADJUDICATIONS IN ITS
COURTS; AND NO OTHER JUDICIARY IS APPARENTLY SO INCOMPETENT TO
ASCERTAIN AND APPLY INTERNATIONAL LAW."  376 U.S.,AT 440 (FOOTNOTE
OMITTED). 

MR. JUSTICE BRENNAN WITH WHOM MR. JUSTICE STEWART, MR. JUSTICE
MARSHALL, AND MR. JUSTICE BLACKMUN JOIN, DISSENTING. 

THE COURT TODAY REVERSES THE JUDGMENT OF THE COURT OF APPEALS FOR
THE SECOND CIRCUIT WHICH DECLINED TO ENGRAFT THE SO-CALLED "BERNSTEIN"
EXCEPTION UPON THE ACT OF STATE DOCTRINE AS EXPOUNDED IN BANCO NACIONAL
DE CUBA V. SABBATINO, 376 U.S. 398 (1964).  /1/  THE COURT,
NEVERTHELESS, AFFIRMS THE COURT OF APPEALS' REJECTION OF THE
"BERNSTEIN" EXCEPTION.  FOUR OF US IN THIS OPINION UNEQUIVOCALLY TAKE
THAT STEP, AS DO MR. JUSTICE DOUGLAS AND MR. JUSTICE POWELL IN THEIR
SEPARATE OPINIONS CONCURRING IN THE RESULT OR JUDGMENT. 

THE ANOMALOUS REMAND FOR FURTHER PROCEEDINGS RESULTS BECAUSE THREE
COLLEAGUES, MR. JUSTICE REHNQUIST, JOINED BY THE CHIEF JUSTICE AND MR.
JUSTICE WHITE, ADOPT THE CONTRARY POSITION, WHILE MR. JUSTICE DOUGLAS
FINDS NATIONAL CITY BANK V. REPUBLIC OF CHINA, 348 U.S. 356 (1955),
DISPOSITIVE IN THE CIRCUMSTANCES OF THIS CASE AND MR. JUSTICE POWELL
REJECTS THE SPECIFIC HOLDING IN SABBATINO, BELIEVING IT WAS NOT
REQUIRED BY THE PRINCIPLES UNDERLYING THE ACT OF STATE DOCTRINE. 

MR. JUSTICE REHNQUIST'S OPINION REASONS THAT THE ACT OF STATE DOCTRINE
EXISTS PRIMARILY, AND PERHAPS EVEN SOLELY, AS A JUDICIAL AID TO THE
EXECUTIVE TO AVOID EMBARRASSMENT TO THE POLITICAL BRANCH IN THE CONDUCT
OF FOREIGN RELATIONS.  WHERE THE EXECUTIVE EXPRESSLY INDICATES THAT
INVOCATION OF THE RULE WILL NOT PROMOTE DOMESTIC FOREIGN POLICY
INTEREST, HIS OPINION STATES THE VIEW, ADOPTING THE "BERNSTEIN"
EXCEPTION, THAT THE DOCTRINE DOES NOT APPLY.  THIS SYLLOGISM-- FROM
PREMISE TO CONCLUSION-- IS, WITH ALL RESPECT, MECHANICAL AND
FALLACIOUS.  MOREOVER, IT WOULD REQUIRE US TO ABDICATE OUR JUDICIAL
RESPONSIBILITY TO DEFINE THE CONTOURS OF THE ACT OF STATE DOCTRINE SO
THAT THE JUDICIARY DOES NOT BECOME EMBROILED IN THE POLICIES OF
INTERNATIONAL RELATIONS TO THE DAMAGE NOT ONLY OF THE COURTS AND THE
EXECUTIVE BUT OF THE RULE OF LAW. 

MR. JUSTICE REHNQUIST'S OPINION ALSO FINDS SUPPORT FOR ITS RESULT IN
NATIONAL CITY BANK, AND MR. JUSTICE DOUGLAS WOULD REMAND ON THE
AUTHORITY OF THAT CASE ALONE.  IN HIS VIEW, "(FAIR DEALING" REQUIRES
THAT A FOREIGN SOVEREIGN SUING IN OUR COURTS BE SUBJECT TO SETOFFS,
EVEN THOUGH COUNTERCLAIMS ARE BARRED BY THE ACT OF STATE DOCTRINE FOR
AMOUNTS EXCEEDING THE STATE'S CLAIM.  I BELIEVE THAT NATIONAL CITY BANK
IS NOT AT ALL IN POINT, AND THAT MY BROTHER DOUGLAS' VIEW LEADS TO THE
STRANGE RESULT THAT APPLICATION OF THE ACT OF STATE DOCTRINE DEPENDS
UPON THE DOLLAR VALUE OF A LITIGANT'S COUNTERCLAIM. 

FINALLY, MR. JUSTICE POWELL ACKNOWLEDGES THAT SABBATINO, NOT
NATIONAL CITY BANK, CONTROLS THIS CASE, BUT, NONETHELESS, VOTES TO
REMAND ON THE GROUND THAT SABBATINO WAS WRONGLY DECIDED.  IN MY VIEW,
NOTHING HAS INTERVENED IN THE EIGHT YEARS SINCE THAT DECISION TO PUT
ITS AUTHORITY INTO QUESTION. 

I 

ON SEPTEMBER 16 AND 17, 1960, THE GOVERNMENTS OF CUBA NATIONALIZED
THE BRANCH OFFICES OF PETITIONER IN CUBA.  PETITIONER PROMPTLY
RESPONDED BY SELLING COLLATERAL THAT HAD PREVIOUSLY BEEN PLEDGED IN
SECURITY FOR A LOAN IT HAD MADE TO A CUBAN INSTRUMENTALITY.  RESPONDENT
- ALLEGED BY PETITIONER TO BE AN AGENT OF THE CUBAN GOVERNMENT /2/  --
IN TURN, INSTITUTED THIS ACTION TO RECOVER THE EXCESS OF THE PROCEEDS
OF THE SALE OVER THE ACCRUED INTEREST AND PRINCIPAL OF THE LOAN.  /3/
PETITIONER THEN COUNTERCLAIMED FOR THE VALUE OF ITS CUBAN PROPERTIES,
ALLEGING THAT THEY HAD BEEN EXPROPRIATED IN VIOLATION OF INTERNATIONAL
LAW.  /4/  ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, THE DISTRICT COURT
HELD THAT PETITIONER "IS ENTITLED TO SETOFF AS AGAINST (RESPONDENT'S)
CLAIM FOR RELIEF ANY AMOUNTS DUE AND OWING TO IT FROM THE CUBAN
GOVERNMENT BY REASON OF THE CONFISCATION OF (ITS) CUBAN PROPERTIES. 
270 F.SUPP.  1004, 1011 (1967).  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT REVERSED ON THE GROUND THAT THE ACT OF STATE DOCTRINE, AS
APPLIED IN SABBATINO, FORECLOSES JUDICIAL REVIEW OF THE NATIONALIZATION
OF PETITIONER'S BRANCH OFFICES.  431 F.2D 394 (1970).  /5/ 

WHILE A PETITION TO THIS COURT WAS PENDING FOR A WRIT OF CERTIORARI,
THE LEGAL ADVISER OF THE DEPARTMENT OF STATE ADVISED US THAT THE ACT OF
STATE DOCTRINE SHOULD NOT BE APPLIED TO BAR CONSIDERATION OF
COUNTERCLAIMS IN THE CIRCUMSTANCES OF THIS CASE.  MORE PARTICULARLY,
THE LEGAL ADVISER STATED:  /6/ 

     "RECENT EVENTS, IN OUR VIEW, MAKE APPROPRIATE A DETERMINATION

  BY THE DEPARTMENT OF STATE THAT THE ACT OF STATE DOCTRINE NEED

  NOT BE APPLIED WHEN IT IS RAISED TO BAR ADJUDICATION OF A

  COUNTERCLAIM OR SETOFF WHEN (A) THE FOREIGN STATE'S CLAIM ARISES

FROM A RELATIONSHIP BETWEEN THE PARTIES EXISTING WHEN THE ACT OF

  STATE OCCURRED; (B) THE AMOUNT OF THE RELIEF TO BE GRANTED IS

  LIMITED TO THE AMOUNT OF THE FOREIGN STATE'S CLAIM; AND (C) THE

  FOREIGN POLICY INTERESTS OF THE UNITED STATES DO NOT REQUIRE

  APPLICATION OF THE DOCTRINE. 

  "IN THIS CASE, THE CUBAN GOVERNMENT'S CLAIM AROSE FROM A

  BANKING RELATIONSHIP WITH THE DEFENDANT EXISTING AT THE TIME THE

  ACT OF STATE-- EXPROPRIATION OF DEFENDANT'S CUBAN PROPERTY--

  OCCURRED, AND DEFENDANT'S COUNTERCLAIM IS LIMITED TO THE AMOUNT

  OF THE CUBAN GOVERNMENT'S CLAIM.  WE FIND, MOREOVER, THAT THE

  FOREIGN POLICY INTERESTS OF THE UNITED STATES DO NOT REQUIRE THE

  APPLICATION OF THE ACT OF STATE DOCTRINE TO BAR ADJUDICATION OF

  THE VALIDITY OF A DEFENDANT'S COUNTERCLAIM OR SET-OFF AGAINST THE

  GOVERNMENT OF CUBA IN THIS OR LIKE CASES." 

WE GRANTED CERTIORARI, VACATED THE JUDGMENT OF THE COURT OF APPEALS,
AND, WITHOUT EXPRESSING ANY VIEWS ON THE MERITS OF THE CASE, REMANDED
FOR RECONSIDERATION IN LIGHT OF THIS STATEMENT OF POSITION BY THE
DEPARTMENT OF STATE.  400 U.S. 1019 (1971).  ON REMAND THE COURT OF
APPEALS ADHERED TO ITS ORIGINAL DECISION, 442 F.2D 530 (1971), AND WE
AGAIN GRANTED CERTIORARI, 404 U.S. 820 (1971). 

   II 

THE OPINION OF MR. JUSTICE REHNQUIST, JOINED BY THE CHIEF JUSTICE
AND MR. JUSTICE WHITE, STATES THAT "(THE ONLY REASON FOR NOT DECIDING
THE CASE BY USE OF OTHERWISE APPLICABLE LEGAL PRINCIPLES WOULD BE THE
FEAR THAT LEGAL INTERPRETATION BY THE JUDICIARY OF THE ACT OF A FOREIGN
SOVEREIGN WITHIN ITS OWN TERRITORY MIGHT FRUSTRATE THE CONDUCT OF THIS
COUNTRY'S FOREIGN RELATIONS."  EVEN IF THIS WERE A CORRECT DESCRIPTION
OF THE RATIONALE FOR THE ACT OF STATE DOCTRINE, THE CONCLUSION THAT THE
REASON FOR THE RULE CEASES WHEN THE EXECUTIVE, AS HERE, REQUESTS THAT
THE DOCTRINE NOT BE APPLIED PLAINLY DOES NOT FOLLOW.  IN SABBATINO THIS
COURT REVIEWED AT LENGTH THE RISKS OF JUDICIAL REVIEW OF A FOREIGN
EXPROPRIATION IN TERMS OF THE POSSIBLE PREJUDICE TO THE CONDUCT OF OUR
EXTERNAL AFFAIRS.  THE COURT THERE EXPLAINED, 376 U.S.,AT 432-433: 

"IF THE EXECUTIVE BRANCH HAS UNDERTAKEN NEGOTIATIONS WITH AN
EXPROPRIATING COUNTRY, BUT HAS REFRAINED FROM CLAIMS OF VIOLATION OF
THE LAW OF NATIONS, A DETERMINATION TO THAT EFFECT BY A COURT MIGHT BE
REGARDED AS A SERIOUS INSULT, WHILE A FINDING OF COMPLIANCE WITH
INTERNATIONAL LAW, WOULD GREATLY STRENGTHEN THE BARGAINING HAND OF THE
OTHER STATE WITH CONSEQUENT DETRIMENT TO AMERICAN INTERESTS. 

    "EVEN IF THE STATE DEPARTMENT HAS PROCLAIMED THE IMPROPRIETY OF

  THE EXPROPRIATION, THE STAMP OF APPROVAL OF ITS VIEW BY A

  JUDICIAL TRIBUNAL, HOWEVER IMPARTIAL, MIGHT INCREASE ANY AFFRONT

  AND THE JUDICIAL DECISION MIGHT OCCUR AT A TIME, ALMOST ALWAYS

  WELL AFTER THE TAKING, WHEN SUCH AN IMPACT WOULD BE CONTRARY TO

  OUR NATIONAL INTEREST.  CONSIDERABLY MORE SERIOUS AND

  FAR-REACHING CONSEQUENCES WOULD FLOW FROM A JUDICIAL FINDING THAT

  INTERNATIONAL LAW STANDARDS HAD BEEN MET IF THAT DETERMINATION

  FLEW IN THE FACE OF A STATE DEPARTMENT PROCLAMATION TO THE

  CONTRARY . . . IN SHORT, WHATEVER WAY THE MATTER IS CUT, THE

POSSIBILITY OF CONFLICT BETWEEN THE JUDICIAL AND EXECUTIVE

 BRANCHES COULD HARDLY BE AVOIDED." 

THIS REASONING MAY NOT APPLY WHERE THE EXECUTIVE EXPRESSLY
STIPULATED THAT DOMESTIC FOREIGN POLICY INTERESTS WILL NOT BE IMPAIRED
HOWEVER THE COURT DECIDES THE VALIDITY OF THE FOREIGN EXPROPRIATION. 
BUT BY DEFINITION THOSE CASES CAN ONLY ARISE WHERE THE POLITICAL BRANCH
IS INDIFFERENT TO THE RESULT REACHED, AND THAT SURELY IS NOT THE CASE
BEFORE US.  THE UNITED STATES HAS PROTESTED THE NATIONALIZATION BY CUBA
OF PROPERTY BELONGING TO AMERICAN CITIZENS AS A VIOLATION OF
INTERNATIONAL LAW.  THE UNITED STATES HAS ALSO SERVED DIPLOMATIC
RELATIONS WITH THAT GOVERNMENT.  THE VERY TERMS OF THE LEGAL ADVISER'S
COMMUNICATION TO THIS COURT, MOREOVER, ANTICIPATE A FAVORABLE RULING
THAT THE CUBAN EXPROPRIATION OF PETITIONER'S PROPERTIES WAS INVALID. 
/7/ 

SABBATINO ITSELF EXPLAINED WHY IN THESE CIRCUMSTANCES THE
REPRESENTATIONS OF THE EXECUTIVE IN FAVOR OF REMOVING THE ACT OF STATE
BAR CANNOT BE FOLLOWED:  "IT IS HIGHLY QUESTIONABLE WHETHER THE
EXAMINATION OF VALIDITY BY THE JUDICIARY SHOULD DEPEND ON AN EDUCATED
GUESS BY THE EXECUTIVE AS TO PROBABLY RESULT AND, AT ANY RATE, SHOULD A
PREDICTION BE WRONG, THE EXECUTIVE MIGHT BE EMBARRASSED IN ITS DEALINGS
WITH OTHER COUNTRIES."  ID.,AT 436.  SHOULD THE COURT OF APPEALS ON
REMAND UPHOLD THE CUBAN EXPROPRIATION IN THIS CASE, THE GOVERNMENT
WOULD NOT ONLY BE EMBARRASSED BUT WOULD FIND IT EXTENSIVE EFFORTS TO
SECURE THE PROPERTY OF UNITED STATES CITIZENS ABROAD SERIOUSLY
COMPROMISED.  /8/ 

NOR CAN IT BE ARGUED THAT THIS RISK IS INSUBSTANTIAL BECAUSE THE
SUBSTANTIVE LAW CONTROLLING PETITIONER'S CLAIMS IS CLEAR.  THE COURT IS
SABBATINO OBSERVED THAT "(THERE ARE FEW IF ANY ISSUES IN INTERNATIONAL
LAW TODAY ON WHICH OPINION SEEMS TO BE SO DIVIDED AS THE LIMITATIONS ON
A STATE'S POWER TO EXPROPRIATE THE PROPERTY OF ALIENS."  ID., AT 428. 
/9/  AND THIS OBSERVATION, IF ANYTHING, HAS MORE FORCE IN THIS CASE
THAN IN SABBATINO, SINCE RESPONDENT ARGUES WITH SOME SUBSTANCE THAT THE
CUBAN NATIONALIZATION OF PETITIONER'S PROPERTIES, UNLIKE THE
EXPROPRIATION AT ISSUE IN SABBATINO, WAS NOT DISCRIMINATORY AGAINST
UNITED STATES CITIZENS. 

THUS, THE ASSUMPTION THAT THE LEGAL ADVISER'S LETTER REMOVES THE
POSSIBILITY OF INTERFERENCE WITH THE EXECUTIVE IN THE CONDUCT OF
FOREIGN AFFAIRS IS PLAINLY MISTAKEN. 

        III 

THAT, HOWEVER, IS NOT THE CRUX OF MY DISAGREEMENT WITH MY COLLEAGUES
WHO WOULD UPHOLD THE "BERNSTEIN" EXCEPTION.  MY BROTHER REHNQUIST'S
OPINION ASSERTS THAT THE ACT OF STATE DOCTRINE IS DESIGNED PRIMARILY,
AND PERHAPS EVEN ENTIRELY, TO AVOID EMBARRASSMENT TO THE POLITICAL
BRANCH.  EVEN A CURSORY READING OF SABBATINO, THIS COURT'S MOST RECENT
AND MOST EXHAUSTIVE TREATMENT OF THE ACT OF STATE DOCTRINE, BELIES THIS
CONTENTION.  WRITING FOR A MAJORITY OF EIGHT IN SABBATINO, MR. JUSTICE
HARLAN LAID BARE THE FOUNDATIONS OF THE DOCTRINE AS FOLLOWS, ID., AT
427-428. 

     "IF THE ACT OF STATE DOCTRINE IS A PRINCIPLE OF DECISION

  BINDING ON FEDERAL AND STATE COURTS ALIKE BUT COMPELLED BY

  NEITHER INTERNATIONAL LAW NOR THE CONSTITUTION, ITS CONTINUING

  VITALITY DEPENDS ON ITS CAPACITY TO REFLECT THE PROPER

  DISTRIBUTION OF FUNCTIONS BETWEEN THE JUDICIAL AND POLITICAL

  BRANCHES OF THE GOVERNMENT ON MATTERS BEARING UPON FOREIGN

  AFFAIRS.  IT SHOULD BE APPARENT THAT THE GREATER THE DEGREE OF

  CODIFICATION OR CONSENSUS CONCERNING A PARTICULAR AREA OF

  INTERNATIONAL LAW, THE MORE APPROPRIATE IT IS FOR THE JUDICIARY

  TO RENDER DECISIONS REGARDING IT, SINCE THE COURTS CAN THEN FOCUS

  ON THE APPLICATION OF AN AGREED PRINCIPLE TO CIRCUMSTANCES OF

  FACT RATHER THAN ON THE SENSITIVE TASK OF ESTABLISHING A

  PRINCIPLE NOT INCONSISTENT WITH THE NATIONAL INTEREST OR WITH

  INTERNATIONAL JUSTICE.  IT IS ALSO EVIDENT THAT SOME ASPECTS OF

  INTERNATIONAL LAW TOUCH MUCH MORE SHARPLY ON NATIONAL NERVES THAN

  DO OTHERS; THE LESS IMPORTANT THE IMPLICATIONS OF AN ISSUE ARE

  FOR OUR FOREIGN RELATIONS, THE WEAKER THE JUSTIFICATION FOR

  EXCLUSIVITY IN THE POLITICAL BRANCHES.  THE BALANCE OF RELEVANT

  CONSIDERATIONS MAY ALSO BE SHIFTED IF THE GOVERNMENT WHICH

  PERPETRATED THE CHALLENGED ACT OF STATE IS NO LONGER IN

  EXISTENCE, AS IN THE BERNSTEIN CASE (SEE N. 1, SUPRA), FOR THE

  POLITICAL INTEREST OF THIS COUNTRY MAY, AS A RESULT, BE

  MEASURABLY ALTERED." 

APPLYING THESE PRINCIPLES TO THE EXPROPRIATION BEFORE THE COURT, MR.
JUSTICE HARLAN NOTED THE LACK OF CONSENSUS AMONG THE NATIONS OF THE
WORLD ON THE POWER OF A STATE TO TAKE ALIEN PROPERTY, AND STATED
FURTHER THAT "(IT IS DIFFICULT TO IMAGINE THE COURTS OF THIS COUNTRY
EMBARKING ON ADJUDICATION IN AN AREA WHICH TOUCHED MORE SENSITIVELY THE
PRACTICAL AND IDEOLOGICAL GOALS OF THE VARIOUS MEMBERS OF THE COMMUNITY
OF NATIONS."  ID., AT 430.  HE REVIEWED AS WELL THE POSSIBLE ADVERSE
EFFECTS FROM JUDICIAL REVIEW OF FOREIGN EXPROPRIATIONS ON THE CONDUCT
OF OUR EXTERNAL AFFAIRS, DISCUSSED ABOVE, AND EMPHASIZED THE POWERS OF
THE EXECUTIVE "TO ENSURE FAIR TREATMENT OF UNITED STATES NATIONALS,"
ID., AT 435, IN COMPARISON TO THE "(PIECEMEAL DISPOSITION," ID., AT
432, THAT COURTS COULD MAKE: 

"FOLLOWING AN EXPROPRIATION OF ANY SIGNIFICANCE, THE EXECUTIVE
ENGAGES IN DIPLOMACY AIMED TO ASSURE THAT UNITED STATES CITIZENS WHO
ARE HARMED ARE COMPENSATED FAIRLY.  REPRESENTING ALL CLAIMANTS OF THIS
COUNTRY, IT WILL OFTEN BE ABLE, EITHER BY BILATERAL OR MULTILATERAL
TALKS, BY SUBMISSION TO THE UNITED NATIONS, OR BY THE EMPLOYMENT OF
ECONOMIC AND POLITICAL SANCTIONS, TO ACHIEVE SOME DEGREE OF GENERAL
REDRESS.  JUDICIAL DETERMINATIONS OF INVALIDITY OF TITLE CAN, ON THE
OTHER HAND, HAVE ONLY AN OCCASIONAL IMPACT, SINCE THEY DEPEND ON THE
FORTUITOUS CIRCUMSTANCE OF THE PROPERTY IN QUESTION BEING BROUGHT INTO
THIS COUNTRY."  ID., AT 431. 

     "WHEN ONE CONSIDERS THE VARIETY OF MEANS POSSESSED BY THIS

  COUNTRY TO MAKE SECURE FOREIGN INVESTMENT, THE PERSUASIVE OR

  COERCIVE EFFECT OF JUDICIAL INVALIDATION OF ACTS OF EXPROPRIATION

  DWINDLES IN COMPARISON."  ID., AT 435.  /10/

ONLY IN VIEW OF ALL THESE CONSIDERATIONS DID HE CONCLUDE, ID., AT 428: 

"(THE JUDICIAL BRANCH WILL NOT EXAMINE THE VALIDITY OF A TAKING OF
PROPERTY WITHIN ITS OWN TERRITORY BY A FOREIGN SOVEREIGN GOVERNMENT,
EXTANT AND RECOGNIZED BY THIS COUNTRY AT THE TIME OF SUIT, IN THE
ABSENCE OF A TREATY OR OTHER UNAMBIGUOUS AGREEMENT REGARDING
CONTROLLING LEGAL PRINCIPLES, EVEN IF THE COMPLAINT ALLEGES THAT THE
TAKING VIOLATES CUSTOMARY INTERNATIONAL LAW." 

IN SHORT, SABBATINO HELD THAT THE VALIDITY OF A FOREIGN ACT OF STATE
IN CERTAIN CIRCUMSTANCES IS A "POLITICAL QUESTION" NOT COGNIZABLE IN
OUR COURTS.  /11/  ONLY ONE-- AND NOT NECESSARILY THE MOST IMPORTANT--
OF THOSE CIRCUMSTANCES CONCERNED THE POSSIBLE IMPAIRMENT OF THE
ESECUTIVE'S CONDUCT OF FOREIGN AFFAIRS.  EVEN IF THIS FACTOR WERE
ABSENT IN THIS CASE BECAUSE OF THE LEGAL ADVISER'S STATEMENT OF
POSITION, IT WOULD HARDLY FOLLOW THAT THE ACT OF STATE DOCTRINE SHOULD
NOT FORECLOSE JUDICIAL REVIEW OF THE EXPROPRIATION OF PETITIONER'S
PROPERTIES.  TO THE CONTRARY, THE ABSENCE OF CONSENSUS ON THE
APPLICABLE INTERNATIONAL RULES, THE UNAVAILABILITY OF STANDARDS FROM A
TREATY OR OTHER AGREEMENT, THE EXISTENCE AND RECOGNITION OF THE CUBAN
GOVERNMENT, THE SENSITIVITY OF THE ISSUES TO NATIONAL CONCERNS, AND THE
POWER OF THE EXECUTIVE ALONE TO EFFECT A FAIR REMEDY FOR ALL UNITED
STATES CITIZENS WHO HAVE BEEN HARMED ALL POINT TOWARD THE EXISTENCE OF
A "POLITICAL QUESTION."  THE LEGAL ADVISER'S LETTER DOES NOT PURPORT TO
AFFECT THESE CONSIDERATIONS AT ALL.  IN ANY EVENT, WHEN COUPLED WITH
THE POSSIBLE CONSEQUENCES TO THE CONDUCT OF OUR FOREIGN RELATIONS
EXPLORED ABOVE, THESE CONSIDERATIONS COMPEL APPLICATION OF THE ACT OF
STATE DOCTRINE, NOTWITHSTANDING THE LEGAL ADVISER'S SUGGESTION TO THE
CONTRARY.  /12/  THE EXECUTIVE BRANCH, HOWEVER EXTENSIVE ITS POWERS IN
THE AREA OF FOREIGN AFFAIRS, CANNOT BE SIMPLE STIPULATION CHANGE A
POLITICAL QUESTION INTO A COGNIZABLE CLAIM.  /13/ 

SABBATINO, AS MY BROTHER REHNQUIST'S OPINION NOTES, FORMALLY LEFT
OPEN THE VALIDITY OF THE "BERNSTEIN" EXCEPTION TO THE ACT OF STATE
DOCTRINE.  BUT THAT WAS ONLY BECAUSE THE ISSUE WAS NOT PRESENTED
THERE.  AS SIX MEMBERS OF THIS COURT RECOGNIZE TODAY, THE REASONING OF
THAT-CASE IS CLEAR THAT THE REPRESENTATIONS OF THE DEPARTMENT OF STATE
ARE ENTITLED TO WEIGHT FOR THE LIGHT THEY SHED ON THE PERMUTATION AND
COMBINATION OF FACTORS UNDERLYING THE ACT OF STATE DOCTRINE.  BUT THEY
CANNOT BE DETERMINATIVE. 

        IV 

TO FIND ROOM FOR THE "BERNSTEIN" EXCEPTION IN SABBATINO DOES MORE
THAN DISSERVICE TO PRECEDENT.  MR. JUSTICE REHNQUIST'S OPINION STATES:
"OUR HOLDING IS IN NO SENSE AN ABDICATION OF THE JUDICIAL FUNCTION TO
THE EXECUTIVE BRANCH."  WITH ALL RESPECT, IT SEEMS PATENT THAT THE
CONTRARY IS TRUE.  THE TASK OF DEFINING THE CONTOURS OF A POLITICAL
QUESTION SUCH AS THE ACT OF STATE DOCTRINE IS EXCLUSIVELY THE FUNCTION
OF THIS COURT.  BAKER V. CARR, 369 U.S. 186 (1962), AND CASES CITED
THEREIN; SEE R. FALK THAT STATUS OF LAW IN INTERNATIONAL SOCIETY 413
(1970).  THE "BERNSTEIN" EXCEPTION RELINQUISHES THE FUNCTION TO THE
EXECUTIVE BY REQUIRING BLIND ADHERENCE TO ITS REQUESTS THAT FOREIGN
ACTS OF STATE BE REVIEWED.  CONVERSELY, IT POLITICIZES THE JUDICIARY. 
FOR THE EXECUTIVE'S INVITATION TO LIFT THE ACT OF STATE BAR CAN ONLY BE
ACCEPTED AT THE EXPENSE OF SUPPLANTING THE POLITICAL BRANCH IN ITS ROLE
AS A CONSTITUENT OF THE INTERNATIONAL LAW-MAKING COMMUNITY.  AS
SABBATINO, 376 U.S.,AT 432-433, INDICATED, IT IS THE FUNCTION OF THE
EXECUTIVE TO ACT "NOT ONLY AS AN INTERPRETER OF GENERALLY ACCEPTED AND
TRADITIONAL RULES, AS (DO) THE COURTS, BUT ALSO AS AN ADVOCATE OF
STANDARDS IT BELIEVES DESIRABLE FOR THE COMMUNITY OF NATIONS AND
PROTECTIVE OF NATIONAL CONCERNS."  /14/ THE "BERNSTEIN" EXCEPTION,
NEVERTHELESS, ASSIGNS THE TASK OF ADVOCACY TO THE JUDICIARY BY CALLING
FOR A JUDGMENT WHERE CONSENSUS ON CONTROLLING LEGAL PRINCIPLES IS
ABSENT.  NOTE, 40 FORDHAM L.REV.  409, 417 (1971).  THUS, IT
COUNTENANCES AN EXCHANGE OF ROLES BETWEEN THE JUDICIARY AND THE
EXECUTIVE, CONTRARY TO THE FIRM INSISTENCE IN SABBATINO ON THE
SEPARATION OF POWERS.  /15/ 

THE CONSEQUENCE OF ADOPTING THE "BERNSTEIN" APPROACH WOULD ONLY BE
TO BRING THE RULE OF LAW BOTH HERE AT HOME AND IN THE RELATIONS OF
NATIONS INTO DISRESPECT.  INDEED, THE FATE OF THE INDIVIDUAL CLAIMANT
WOULD BE SUBJECT TO THE POLITICAL CONSIDERATIONS OF THE EXECUTIVE
BRANCH.  SINCE THOSE CONSIDERATIONS CHANGE AS SURELY AS ADMINISTRATIONS
CHANGE, SIMILARLY SITUATED LITIGANTS WOULD NOT BE LIKELY TO OBTAIN EVEN
HANDED TREATMENTS.  THIS IS ALL TOO EVIDENT IN THE VERY CASE BEFORE US.
THE LEGAL ADVISER'S SUGGESTION THAT THE ACT OF STATE DOCTRINE DOES NOT
APPLY HERE IS CAREFULLY COUCHED IN TERMS APPLICABLE ONLY TO SETOFFS
"AGAINST THE GOVERNMENT OF CUBA IN THIS OR LIKE CASES,"  SEE SUPRA, AT
781-- THAT IS, WHERE THE EXECUTIVE FINDS IN ITS DISCRETION THAT
INVOCATION OF THE DOCTRINE IS NOT REQUIRED IN THE INTERESTS OF AMERICAN
FOREIGN POLICY VIS-A-VIS CUBA.  NOTE, 12 HARV.INT'L L.J. 557, 562, 572
(1971).  /16/  IN ZSCHERNIG V. MILLER, 389 U.S. 429 (1968), THIS COURT
STRUCK DOWN AN OREGON ESCHEAT STATUTE AS AN UNCONSITUTIONAL INVASION OF
THE NATIONAL GOVERNMENT'S POWER OVER EXTERNAL AFFAIRS, DESPITE ADVISE
FROM THE EXECUTIVE THAT THE LAW DID NOT UNDULY INTERFERE WITH THE
CONDUCT OF OUR FOREIGN POLICY.  PARAPHRASING FROM WHAT MY BROTHER
STEWART SAID THERE, ID., AT 443 (CONCURRING OPINION), WE MUST CONCLUDE
HERE: 

"RESOLUTION OF SO FUNDAMENTAL (AN) ISSUE (AS THE BASIC DIVISION OF
FUNCTIONS BETWEEN THE EXECUTIVE AND THE JUDICIAL BRANCHES) CANNOT VARY
FROM DAY TO DAY WITH THE SHIFTING WINDS AT THE STATE DEPARTMENT. 
TODAY, WE ARE TOLD, (JUDICIAL REVIEW OF A FOREIGN ACT OF STATE) DOES
NOT CONFLICT WITH THE NATIONAL INTEREST.  TOMORROW IT MAY."  SEE ALSO
ID., AT 434-435 (DOUGLAS, J.) 

NO LESS IMPORTANT THAN FAIR AND EQUAL TREATMENT TO INDIVIDUAL
LITIGANTS IS THE CONCERN THAT DECISIONS OF OUR COURTS COMMAND RESPECT
AS DISPASSIONATE OPINIONS OF PRINCIPLE.  NOTHING LESS WILL SUFFICE FOR
THE RULE OF LAW.  YET THE "BERNSTEIN" APPROACH IS CALCULATED ONLY TO
UNDERMINE REGARD FOR INTERNATIONAL LAW.  IT IS, AFTER ALL, AS SABBATINO
SAID, 376 U.S.,AT 434-435, A "SANGUINE PRESUPPOSITION THAT THE
DECISIONS OF THE COURTS OF THE WORLD'S MAJOR CAPITAL EXPORTING COUNTRY
AND PRINCIPAL EXPONENT OF THE FREE-ENTERPRISE SYSTEM WOULD BE ACCEPTED
AS DISINTERESTED EXPRESSIONS OF SOUND LEGAL PRINCIPLE BY THOSE ADHERING
TO WIDELY DIFFERENT IDEOLOGIES."  THIS IS PARTICULARLY SO WHERE, AS
UNDER THE "BERNSTEIN" APPROACH, THE DETERMINATION OF INTERNATIONAL LAW
IS MADE TO DEPEND UPON A PRIOR POLITICAL AUTHORIZATION.  E.G., R. FALK,
THE ROLE OF DOMESTIC COURTS IN THE INTERNATIONAL LEGAL ORDER 93-94, 136
137 (1964). 

V 

MR. JUSTICE REHNQUIST'S OPINION FINDS SUPPORT FOR THE RESULT IT
REACHES IN NATIONAL CITY BANK V. REPUBLIC OF CHINA, 348 U.S. 356
(1955), AND MR. JUSTICE DOUGLAS BASES HIS DECISION ON THAT CASE ALONE. 
NATIONAL CITY BANK HELD THAT, BY BRINGING SUIT IN OUR COURTS, A FOREIGN
SOVEREIGN WAIVES IMMUNITY ON OFFSETTING COUNTERCLAIMS, WHETHER OR NOT
RELATED TO THE SOVEREIGN'S CAUSE OF ACTION.  NOTHING IN THAT DECISION
SPOKE TO THE APPLICABILITY OF THE ACT OF STATE DOCTRINE.  MY BROTHER
REHNQUIST'S OPINION, NEVERTHELESS, SEIZES ON LANGUAGE THERE THAT A
SOVEREIGN SUING IN OUR COURTS "WANTS OUR LAW" AND SO SHOULD BE HELD
BOUND BY IT AS A MATTER OF EQUITY.  IN A SIMILAR VEIN, MY BROTHER
DOUGLAS STATES THAT "(IT WOULD . . . OFFEND OUR SENSIBILITIES IF CUBA
COULD COLLECT THE AMOUNT OWED ON . . . (HER CLAIM) AND NOT BE REQUIRED
TO ACCOUNT FOR ANY SETOFF."  YET, ON THE ASSUMPTION THAT EQUITABLE
PRINCIPLES ARE RELEVANT TO RESPONDENT'S CAUSE OF ACTION, SEE NOTE, 75
HARV.L.REV.  1607, 1619 (1962), IT IS BY NO MEANS CLEAR THAT THE
BALANCE OF EQUITY TIPS IN PETITIONER'S FAVOR.  IT CANNOT BE ARGUED THAT
BE SEEKING RELIEF IN OUR COURTS ON A CLAIM THAT DOES NOT INVOLVE ANY
ACT OF STATE, RESPONDENT HAS WAIVED THE PROTECTION OF THE ACT OF STATE
DOCTRINE IN DEFENSE TO PETITIONER'S COUNTERCLAIMS.  SEE IBID.
FURTHERMORE, AS THE COURT OF APPEALS POINTED OUT BELOW, 442 F.2D, AT
535, PETITIONER "IS SEEKING A WINDFALL AT THE EXPENSE OF OTHER"
CLAIMANTS WHOSE PROPERTY CUBA HAS NATIONALIZED.  OUR GOVERNMENT HAS
BLOCKED CUBAN ASSETS IN THIS COUNTRY FOR POSSIBLE USE BY THE FOREIGN
CLAIMS SETTLEMENT COMMISSION TO COMPENSATE FAIRLY ALL AMERICAN
NATIONALS WHO HAVE BEEN HARMED BY CUBAN EXPROPRIATIONS.  ALTHOUGH THOSE
ASSETS ARE NOT NOW VESTED IN THE UNITED STATES OR AUTHORIZED TO BE
DISTRIBUTED TO CLAIMANTS, IT IS REASONABLE TO ASSUME THAT THEY WILL BE
IF OTHER EFFORTS AT SETTLING CLAIMS WITH CUBA ARE UNAVAILING.  IN THAT
EVENT, OF PETITIONER PREVAILS HERE, IT WILL, IN EFFECT, HAVE SECURED A
PREFERENCE OVER OTHER CLAIMANTS WHO WERE NOT SO FORTUNATE TO HAVE HAD
CUBAN ASSETS WITHIN THEIR REACH AND WHOSE ONLY RELIEF IS BEFORE THE
CLAIMS COMMISSION.  CONVERSELY, IF RESPONDENT PREVAILS, ITS RECOVERY
WILL BECOME A VESTED ASSET FOR FAIR AND RATABLE DISTRIBUTION TO ALL
CLAIMANTS, INCLUDING PETITIONER.  SEE 431 F.2D, AT 403-404. 

MORE IMPORTANT, RELIANCE ON NATIONAL CITY BANK OVERLOOKS THE FACT
THAT "OUR LAW" THAT RESPONDENT "WANTS" INCLUDES THE ACT OF STATE
DOCTRINE, TO WHICH WE HAVE ADHERED FOR DECADES, AS THE PRECEDENTS ON
WHICH SABBATINO RELIED DEMONSTRATE.  SEE N. 1, SUPRA.  AS SABBATINO
INDICATED, 376 U.S.,AT 438, THE DOCTRINE, "ALTHOUGH IT SHARES WITH THE
IMMUNITY DOCTRINE A RESPECT FOR SOVEREIGN STATES," SERVES IMPORTANT
POLICIES ENTIRELY INDEPENDENT OF THAT RULE.  SEE N. 13, SUPRA.  AND
THOSE POLICIES, WITH ONE EXCEPTION, SEE N. 10, SUPRA, APPLY WITH FULL
FORCE IN THIS CASE, AS WE HAVE SEEN.  INDEED, MR. JUSTICE DOUGLAS
CONCEDES AS MUCH BY RECOGNIZING THAT THE POLITICAL-QUESTION RATIONALE
OF SABBATINO WOULD PRECLUDE A JUDGMENT FOR PETITIONER IN EXCESS OF
CUBA'S CLAIM.  WHY PETITIONER'S COUNTERCLAIMS ARE ANY THE LESS PREMISED
ON A POLITICAL QUESTION WHEN THEY ARE STATED ONLY AS OFFSETS IS NOT,
AND CANNOT RATIONALLY BE, EXPLAINED.     IN SABBATINO ITSELF THE COURT
CONSIDERED "WHETHER CUBA'S STATUS AS A PLAINTIFF (SEEKING TO RECOVER
THE PROCEEDS OF PROPERTY IT HAD EXPROPRIATED) . . . DICTATES A RESULT
AT VARIANCE WITH THE CONCLUSIONS REACHED (REQUIRING APPLICATION OF THE
ACT OF STATE DOCTRINE)."  376 U.S.,AT 437.  THE COURT HELD THAT IT DID
NOT, NOTING THAT "(THE SENSITIVELY IN REGARD TO FOREIGN RELATIONS AND
THE POSSIBILITY OF EMBARRASSMENT OF THE EXECUTIVE ARE, OF COURSE,
HEIGHTENED BY THE PRESENCE OF A SOVEREIGN PLAINTIFF.  THE REBUKE TO A
RECOGNIZED POWER WOULD BE MORE POINTED WERE IT A SUITOR IN OUR
COURTS."  IBID.  THE COURT OBSERVED, TOO, ID., AT 438: 

     "CERTAINLY THE DISTINCTION PROPOSED WOULD SANCTION SELF-HELP

  REMEDIES, SOMETHING HARDLY CONDUCIVE TO A PEACEFUL INTERNATIONAL

  ORDER.  HAD (THE DEFENDANT) NOT CONVERTED (THE PROCEEDS OF THE

  PROPERTY CUBA HAD EXPROPRIATED) . . . , CUBA COULD HAVE RELIED ON

  THE ACT OF STATE DOCTRINE IN DEFENSE OF A CLAIM BROUGHT . . . FOR

  THE PROCEEDS.  IT WOULD BE ANOMALOUS TO PRECLUDE RELIANCE ON THE

  ACT OF STATE DOCTRINE BECAUSE OF (THE DEFENDANT'S) UNILATERAL

  ACTION, NOWEVER JUSTIFIED SUCH ACTION MAY HAVE BEEN UNDER THE

  CIRCUMSTANCES." 

THESE CONSIDERATIONS, EQUALLY APPLICABLE HERE, TOGETHER WITH THE
GENERAL POLICIES UNDERLYING THE ACT OF STATE DOCTRINE CAUSED THE COURT
TO CONCLUDE THAT CUBA'S STATUS AS A PLAINTIFF WAS IMMATERIAL.  BUT THE
COURT WENT ON TO DETERMINE WHETHER THERE WERE ANY REMAINING LITIGABLE
ISSUES FOR DETERMINATION ON REMAND AND HELD THAT "ANY COUNTERCLAIM
(AGAINST CUBA) BASED ON ASSERTED INVALIDITY (OF ITS EXPROPRIATION) MUST
FAIL."  ID., AT 439.  SABBATINO THUS ANSWERED THE VERY POINT ON WHICH
SOME OF MY BRETHREN NOW RELY-- AND, FURTHERMORE, DID SO IN THE FACE OF
NATIONAL CITY BANK, AS THE COURT'S DISCUSSION OF THAT DECISION IN
SABBATINO, ID., AT 438, SHOWS. 

/1/  "THE CLASSIC AMERICAN STATEMENT OF THE ACT OF STATE DOCTRINE,
WHICH APPEARS TO HAVE TAKEN ROOT IN ENGLAND AS EARLY AS 1674 . . . AND
BEGAN TO EMERGE IN THE JURISPRUDENCE OF THIS COUNTRY IN THE LATE
EIGHTEENTH AND EARLY NINETEENTH CENTURIES, . . . IS FOUND IN UNDERHILL
V. HERNANDEZ, 168 U.S. 250 (1897), WHERE CHIEF JUSTICE FULLER SAID FOR
A UNANIMOUS COURT (P. 252): 

"'EVERY SOVEREIGN STATE IS BOUND TO RESPECT THE INDEPENDENCE OF
EVERY OTHER SOVEREIGN STATE, AND THE COURTS OF ONE COUNTRY WILL NOT SIT
IN JUDGMENT ON THE ACTS OF THE GOVERNMENT OF ANOTHER DONE WITHIN ITS
OWN TERRITORY.  REDRESS OF GRIEVANCES BY REASON OF SUCH ACTS MUST BE
OBTAINED THROUGH THE MEANS OPEN TO BE AVAILED OF BY SOVEREIGN POWERS AS
BETWEEN THEMSELVES.'"  BANCO NACIONAL DE CUBA V. SABBATINO, 376 U.S.
398, 416 (1964). 

THE SO-CALLED "BERNSTEIN" EXCEPTION TO THIS PRINCIPLE DERIVES FROM
BERNSTEIN V. N. V. NEDERLANDSCHE-AMERIKAANSCHE, 210 F.2D 375 (1954),
WHERE THE COURT OF APPEALS FOR THE SECOND CIRCUIT ALLOWED THE PLAINTIFF
TO CHALLENGE THE VALIDITY OF THE EXPROPRIATION OF HIS PROPERTY BY NAZI
GERMANY IN VIEW OF A LETTER FROM THE ACTING LEGAL ADVISER OF THE
DEPARTMENT OF STATE TO THE EFFECT: 

"'THE POLICY OF THE EXECUTIVE, WITH RESPECT TO CLAIMS ASSERTED IN
THE UNITED STATES FOR THE RESTITUTION OF IDENTIFIABLE PROPERTY (OR
COMPENSATION IN LIEU THEREOF) LOST THROUGH FORCE, COERCION, OR DURESS
AS A RESULT OF NAZI PERSECUTION IN GERMANY, IS TO RELIEVE AMERICAN
COURTS FROM ANY RESTRAINT UPON THE EXERCISE OF THEIR JURISDICTION TO
PASS UPON THE VALIDITY OF THE ACTS OF NAZI OFFICIALS.'"  ID., AT 376. 

THE "BERNSTEIN" EXCEPTION HAS BEEN SUCCESSFULLY APPLIED ONLY ONCE. 
AS THE COURT OF APPEALS NOTED IN THIS CASE, 442 F.2D 530, 535, (1971): 

"(THE BERNSTEIN EXCEPTION HAS BEEN AN EXCEEDINGLY NARROW ONE.  PRIOR
TO THE PRESENT CASE, A 'BERNSTEIN LETTER' HAS BEEN ISSUED ONLY ONCE--
IN THE BERNSTEIN CASE ITSELF.  MOREOVER, THE CASE HAS NEVER BEEN
FOLLOWED SUCCESSFULLY; IT HAS BEEN RELIED UPON ONLY TWICE, AND IN BOTH
OF THOSE INSTANCES, BY LOWER COURTS WHOSE DECISIONS WERE SUBSEQUENTLY
REVERSED." 

/2/  THE DISTRICT COURT, ON CROSS-MOTIONS FOR SUMMARY JUDGMENT,
FOUND RESPONDENT TO BE "ONE AND THE SAME" AS THE GOVERNMENT OF CUBA. 
270 F.SUPP.  1004, 1006 (1967).  RESPONDENT ARGUES THAT ITS
RELATIONSHIP WITH CUBA WAS A DISPUTED ISSUE OF FACT THAT COULD NOT
PROPERLY BE RESOLVED BEFORE TRIAL.  THIS ISSUE, NOT DECIDED BY THE
COURT OF APPEALS, SEE 431 F.2D 394, 397 (1970), IS NECESSARILY OPEN FOR
CONSIDERATION ON REMAND. 

/3/  THE COMPLAINT ALSO PLEADED A SECOND CAUSE OF ACTION THAT IS NOT
MATERIAL TO THE ISSUES BEFORE US. 

/4/  PETITIONER ACTUALLY ASSERTS TWO COUNTERCLAIMS-- FIRST, THAT THE
CUBAN EXPROPRIATION WAS INVALID, GIVING RISE TO DAMAGES, AND SECOND,
THAT CUBA BECAME INDEBTED TO PETITIONER, REGARDLESS OF THE VALIDITY OF
THE EXPROPRIATION DECREE.  MOREOVER, PETITIONER INVOKES CUBAN AND
UNITED STATES AS WELL AS INTERNATIONAL LAW IN SUPPORT OF BOTH CLAIMS. 
THESE REFINEMENTS ARE OF NO AVAIL TO PETITIONER.  IF APPLICABLE, THE
ACT OF STATE DOCTRINE, OF COURSE, BARS CONSIDERATION OF BOTH
INTERNATIONAL LAW CLAIMS; ALTHOUGH THE COURT IN SABBATINO STATED ITS
HOLDING IN TERMS THAT "THE JUDICIAL BRANCH WILL NOT EXAMINE THE
VALIDITY OF A TAKING OF PROPERTY WITHIN ITS OWN TERRITORY BY A FOREIGN
SOVEREIGN GOVERNMENT . . . ," 376 U.S.,AT 426, THE HOLDING CLEARLY
EMBRACED JUDICIAL REVIEW NOT ONLY OF THE TAKING BUT OF THE OBLIGATION
TO MAKE "PROMPT, ADEQUATE, AND EFFECTIVE COMPENSATION."  ID., AT 429. 
SEE ALSO ID., AT 433. 

SIMILARLY, PETITIONER'S ALLEGATIONS DO NOT STATE COGNIZABLE CLAIMS
UNDER CUBAN LAW.  SABBATINO AFFIRMED THAT UNITED STATES COURTS WILL NOT
SIT IN JUDGMENT ON THE VALIDITY OF A FOREIGN ACT OF STATE UNDER FOREIGN
LAW, FOR SUCH AN INQUIRY "WOULD NOT ONLY BE EXCEEDINGLY DIFFICULT BUT,
IF WRONGLY MADE, WOULD BE LIKELY TO BE HIGHLY OFFENSIVE TO THE STATE IN
QUESTION."  ID., AT 415 N. 17.  THE SAME RATIONALE APPLIES TO
PETITIONER'S ASSERTION THAT IT IS ENTITLED TO COMPENSATION UNDER CUBAN
LAW.  ALTHOUGH FOREIGN CAUSES OF ACTION MAY, OF COURSE, BE ENTERTAINED
IN APPROPRIATE CIRCUMSTANCES IN OUR COURTS, THE CLAIM IN ISSUE PRESENTS
THE SAME DANGERS AS THE CLAIM OF INVALIDITY OF THE EXPROPRIATION UNDER
CUBAN LAW.  IN ANY EVENT, AS THE COURT INDICATED IN SABBATINO, IBID.,
IF CUBAN LAW GOVERNS, THE TEST TO BE APPLIED IS THE SUCCESS
PETITIONER'S CLAIMS WOULD RECEIVE IN CUBA ITSELF.  IT CANNOT SERIOUSLY
BE CONTENDED THAT CUBAN COURTS WOULD HOLD THE NATIONALIZATION OF
PETITIONER'S PROPERTIES INVALID OR CUBA LIABLE TO PETITIONER FOR
MEANINGFUL COMPENSATION.  INDEED, ALTHOUGH ART. 24 OF THE FUNDAMENTAL
LAW OF CUBA PROVIDES FOR COMPENSATION FOR CERTAIN PUBLIC TAKINGS, CUBAN
LAW NO. 851, PURSUANT TO WHICH PETITIONER'S PROPERTIES WERE
NATIONALIZED, ITSELF DECLARES IN ART. 6 THAT "(THE RESOLUTIONS . . . IN
FOR FORCED EXPROPRIATION PROCEEDINGS INSTITUTED HEREUNDER MAY NOT BE
APPEALED, AS NO REMEDIAL ACTION SHALL BE AVAILABLE THERE AGAINST." 
MOREOVER, THE PROMISE OF COMPENSATION PROVIDED UNDER LAW NO. 851 MAY,
AS THE COURT SAID IN SABBATINO, ID., AT 402, "WELL BE DEEMED
ILLUSORY." 

FINALLY, UNITED STATES LAW BECOMES RELEVANT ONLY IF THE PUBLIC
POLICY-OF-THE-FORUM EXCEPTION TO THE LEX LOCI CONFLICT-OF-LAWS RULE IS
RECOGNIZED-- THAT IS, IF THE AMERICAN FORUM IS FREE, BECAUSE OF ITS
PUBLIC POLICY, TO DENY RECOGNITION TO CUBAN LAW OTHERWISE APPLICABLE AS
THE LAW OF THE SITUS OF THE PROPERTY SEIZED.  BUT THE VERY PURPOSE OF
THE ACT OF STATE DOCTRINE IS TO FORBID APPLICATION OF THAT EXCEPTION. 
SEE GENERALLY, E.G., HENKIN, ACT OF STATE TODAY:  RECOLLECTIONS OF
TRANQUILITY, 6 COLM.J.OF TRANSNAT'L L. 175 (1967).  SEE ALSO SABBATINO,
SUPRA, AT 438. 

/5/  IN ARRIVING AT THIS CONCLUSION, THE COURT FOUND INAPPLICABLE
THE HICKENLOOPER AMENDMENT TO THE FOREIGN ASSISTANCE ACT OF 1961, 78
STAT. 1013, AS AMENDED, 22 U.S.C. 2370(E)(2).  I AGREE WITH MY
COLLEAGUES IN LEAVING THAT DETERMINATION UNDISTURBED. 

/6/  THE TEST OF THE LEGAL ADVISER'S VIEWS APPEARS IN FULL IN 442
F.2D, AT 536-538. 

/7/  THE LEGAL ADVISER STATES: 

"RECENT EVENTS, IN OUR VIEW, MAKE APPROPRIATE A DETERMINATION BY THE
DEPARTMENT OF STATE THAT THE ACT OF STATE DOCTRINE NEED NOT BE APPLIED
(IN CASES OF THIS KIND) . . . 

"THE 1960'S HAVE SEEN A GREAT INCREASE IN EXPROPRIATIONS BY FOREIGN
GOVERNMENTS OF PROPERTY BELONGING TO UNITED STATES CITIZENS.  MANY
CORPORATIONS WHOSE PROPERTIES ARE EXPROPRIATED, FINANCIAL INSTITUTIONS
FOR EXAMPLE, ARE VULNERABLE TO SUITS IN OUR COURTS BY FOREIGN
GOVERNMENTS AS PLAINTIFFS), FOR THE PURPOSE OF RECOVERING DEPOSITS OR
SUMS OWED THEM IN THE UNITED STATES WITHOUT TAKING INTO ACCOUNT THE
INSTITUTIONS' COUNTERCLAIMS FOR THEIR ASSETS EXPROPRIATED IN THE
FOREIGN COUNTRY." 

THE IMPLICATION IS CLEAR THAT THE LEGAL ADVISER BELIEVES THAT SUCH
CORPORATIONS ARE ENTITLED TO OFFSETTING REDRESS FOR THE VALUE OF THEIR
NATIONALIZED PROPERTY.  NOTE, 12 HARV.INT'L L.J. 557, 576-577 (1971). 
IT IS ALSO SIGNIFICANT THAT THE GOVERNMENT IN THE PAST HAS ACKNOWLEDGED
"THAT A 'BERNSTEIN LETTER,' SHOULD ONE BE ISSUED IN SPECIAL
CIRCUMSTANCES WHERE IT MIGHT BE APPROPRIATE, PLAINLY DOES NOT SEEK TO
DECIDE THE CASE IN QUESTION, BUT MERELY REMOVES THE ACT OF STATE BAR TO
JUDICIAL CONSIDERATION OF THE FOREIGN ACT."  BRIEF FOR THE UNITED
STATES AS AMICUS CURIAE, IN BANCO NACIONAL DE CUBA V. SABBATINO, NO.
16.  O.T. 1963, P. 38.  THE GOVERNMENT MAKES NO SUCH REPRESENTATION IN
THIS CASE.  NOTE, 12 HARV.INT'L L.J.,AT 571 AND N. 74.  TO THE
CONTRARY, THE GOVERNMENT NOW ARGUES:  "BY DISREGARDING (THE) STATEMENT
OF EXECUTIVE POLICY INVOLVING FOREIGN INVESTMENT BY AMERICAN FIRMS, THE
COURT BELOW HAS SERIOUSLY RESTRICTED THE CAPACITY OF THE GOVERNMENT TO
ASSIST AMERICAN INVESTORS IN SECURING PROMPT, ADEQUATE AND EFFECTIVE
COMPENSATION FOR EXPROPRIATION OF AMERICAN PROPERTY ABROAD." 
MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE 3. 

/8/  SEE SABBATINO, 376 U.S.,AT 432:  "RELATIONS WITH THIRD
COUNTRIES WHICH HAVE ENGAGED IN SIMILAR EXPROPRIATIONS WOULD NOT BE
IMMUNE FROM EFFECT." 

/9/  IT BEARS REPEATING HERE WHAT THE COURT SAID IN A FOOTNOTE TO
THIS STATEMENT, ID., AT 429 N. 26:  "WE DO NOT, OF COURSE, MEAN TO SAY
THAT THERE IS NO INTERNATIONAL STANDARD IN THIS AREA; WE CONCLUDE ONLY
THAT THE MATTER IS NOT MEET FOR ADJUDICATION BY DOMESTIC TRIBUNALS." 
SEE N. 14, INFRA. 

/10/  MR. JUSTICE HARLAN ALSO OBSERVED THAT "(ANOTHER SERIOUS
CONSEQUENCE" OF SUSPENDING THE ACT OF STATE BAR "WOULD BE TO RENDER
UNCERTAIN TITLES IN FOREIGN COMMERCE, WITH THE POSSIBLE CONSEQUENCE OF
ALTERING THE FLOW OF INTERNATIONAL TRADE."  376 U.S.,AT 433.  SEE ALSO
ID., AT 437 (IMPACT ON FLOW OF TRADE, THOUGH NOT SECURITY OF TITLE,
EVEN WHERE SOVEREIGN IS PLAINTIFF).  THIS CONSIDERATION, OF COURSE,
DOES NOT APPLY WHERE, AS HERE, THE PROPERTY SEIZED IS NOT AN EXPORTABLE
COMMODITY. 

/11/  CF. BAKER V. CARR, 369 U.S. 186, 211-212 (1962): 

"OUR CASES IN THIS FIELD (OF POLITICAL QUESTIONS INVOLVING FOREIGN
RELATIONS) SEEM INVARIABLY TO SHOW A DISCRIMINATING ANALYSIS OF THE
PARTICULAR QUESTION POSED, IN TERMS OF THE HISTORY OF ITS MANAGEMENT BY
THE POLITICAL BRANCHES, OF ITS SUSCEPTIBILITY TO JUDICIAL HANDLING IN
THE LIGHT OF ITS NATURE AND POSTURE OF THE SPECIFIC CASE, AND OF THE
POSSIBLE CONSEQUENCES OF JUDICIAL ACTION." 

/12/  A COMPARISON OF THE FACTS IN THE BERNSTEIN CASE, N. 1, SUPRA,
WITH THE CIRCUMSTANCES OF THIS CASE REINFORCES THIS CONCLUSION.  AS THE
GOVERNMENT ITSELF HAS ACKNOWLEDGED, BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE IN SABBATINO, N. 7, SUPRA, AT 37-38: 

"THE CIRCUMSTANCES LEADING TO THE STATE DEPARTMENT'S LETTER IN THE
BERNSTEIN CASE WERE OF COURSE MOST UNUSUAL.  THE GOVERNMENTAL ACTS
THERE WERE PART OF A MONSTROUS PROGRAM OF CRIMES AGAINST HUMANITY; THE
ACTS HAD BEEN CONDEMNED BY AN INTERNATIONAL TRIBUNAL AFTER A
CATACLYSMIC WORLD WAR WHICH WAS CAUSED, AT LEAST IN PART, BY ACTS SUCH
AS THOSE INVOLVED IN THE LITIGATION, AND THE GERMAN STATE NO LONGER
EXISTED AT THE TIME OF (THE) STATE DEPARTMENT'S LETTER.  MOREOVER, THE
PRINCIPLE OF PAYMENT OF REPARATIONS BY THE SUCCESSOR GERMAN GOVERNMENT
HAD ALREADY BEEN IMPOSED, AT THE TIME OF THE 'BERNSTEIN LETTER,' UPON
THE SUCCESSOR GOVERNMENT, SO THAT THERE WAS NO CHANCE THAT A SUSPENSION
OF THE ACT OF STATE DOCTRINE WOULD AFFECT THE NEGOTIATION OF A
REPARATIONS SETTLEMENT." 

ON THESE FACTS THE RESULT, THOUGH NOT THE RATIONALE, IN BERNSTEIN
MAY BE DEFENSIBLE.  SEE, E.G., R. FALK, THE STATUS OF LAW IN
INTERNATIONAL SOCIETY 407 AND N. 12 (1970). 

/13/  MY BROTHER REHNQUIST'S OPINION ATTEMPTS TO BOLSTER ITS RESULT
BY DRAWING AN ANALOGY BETWEEN THE ACT OF STATE DOCTRINE AND THE RULE OF
DEFERENCE TO THE EXECUTIVE IN THE AREAS OF SOVEREIGN IMMUNITY AND
RECOGNITION OF FOREIGN POWERS.  THAT RULE HAS ITSELF BEEN THE SUBJECT
OF MUCH DEBATE AND CRITICISM.  SEE GENERALLY, E.G., R. FALK, THE ROLE
OF DOMESTIC COURTS IN THE INTERNATIONAL LEGAL ORDER 139-169 (1964);
LILLICH, THE PROPER ROLE OF DOMESTIC COURTS IN THE INTERNATIONAL LEGAL
ORDER, 11 VA.J.INT'L L. 9, 9-27 (1970); NOTE, 53 MINN.L.REV.  389
(1968).  SEE ASO SABBATINO, 376 U.S.,AT 411 N. 12.  THE ANALOGY, IN ANY
CASE, IS NOT PERSUASIVE.  WHEN THE JUDICIAL BRANCH IN THE PAST HAS
FOLLOWED AN EXECUTIVE SUGGESTION OF IMMUNITY IN BEHALF OF A FOREIGN
GOVERNMENT OR ACCORDED SIGNIFICANT WEIGHT TO THE FAILURE OF THE
EXECUTIVE TO MAKE SUCH A SUGGESTION, THE RESULT HAS BEEN SIMPLY EITHER
TO FORECLOSE JUDICIAL CONSIDERATION OF THE CLAIM AGAINST THAT
GOVERNMENT OR TO ALLOW THE SUIT TO PROCEED ON THE MERITS OF THE CLAIM
AND ANY OTHER DEFENSES THE GOVERNMENT MAY HAVE.  SEE, E.G., MEXICO V.
HOFFMAN, 324 U.S. 30 (1945); EX PARTE PERU, 318 U.S. 578 (1943). 
SIMILARLY, WHEN THE JUDICIAL BRANCH HAS ABIDED BY AN EXECUTIVE
DETERMINATION OF FOREIGN SOVEREIGNTY, THE CONSEQUENCE HAS BEEN MERELY
TO REQUIRE OR DENY THE APPLICATION OF VARIOUS PRINCIPLES GOVERNING THE
ATTRIBUTES OF SOVEREIGNTY.  SEE, E.G., UNITED STATES V. BELMONT, 301
U.S. 324 (1937); RUSSIAN REPUBLIC V. CIBRARIO, 325 N.Y. 255, 139 N.E.
259 (1923).  IN NO EVENT HAS THE JUDICIARY NECESSARILY BEEN CALLED UPON
TO ASSESS A CLAIM UNDER INTERNATIONAL LAW.  THE EFFECT OF FOLLOWING A
"BERNSTEIN LETTER," OF COURSE, IS EXACTLY THE OPPOSITE-- THE JUDICIAL
BRANCH MUST REACH A JUDGMENT DESPITE THE POSSIBLE ABSENCE OF CONSENSUS
OF THE APPLICABLE RULES, THE RISK OF IRRITATION TO SENSITIVE CONCERNS
OF OTHER COUNTRIES, AND THE DANGER OF IMPAIRMENT TO THE CONDUCT OF OUR
FOREIGN POLICY.  E.G., NOTE, 12 HARV.INT'L L.J.,AT 575-577.  SEE ALSO
SABBATINO, SUPRA, AT 438.     /14/  THIS CONSIDERATION, IT MAY BE
NOTED, RESOLVES THE PARADOX MR. JUSTICE WHITE, DISSENTING IN SABBATINO,
SAW BETWEEN THE COURT'S FINDING THERE OF AN ABSENCE OF CONSENSUS ON THE
INTERNATIONAL RULES GOVERNING EXPROPRIATIONS AND THE COURT'S PURPOSE TO
AVOID EMBARRASSMENT TO THE EXECUTIVE IN THE CONDUCT OF EXTERNAL
AFFAIRS.  "I FAIL TO SEE,"  HE STATED, "HOW GREATER EMBARRASSMENT FLOWS
FROM SAYING THAT THE FOREIGN ACT DOES NOT VIOLATE CLEAR AND WIDELY
ACCEPTED PRINCIPLES OF INTERNATIONAL LAW THAN FROM SAYING, AS THE COURT
DOES, THAT NONEXAMINATION AND VALIDATION ARE REQUIRED BECAUSE THERE ARE
NO WIDELY ACCEPTED PRINCIPLES TO WHICH TO SUBJECT THE FOREIGN ACT." 
376 U.S.,AT 465.  THERE IS, HOWEVER, NO INCONSISTENCY: 

"THE EXPLICIT HOLDING IN (SABBATINO) MAKES REFERENCE TO THE CAPACITY
OF DOMESTIC COURTS AND NOT TO THE STATUS OF THE CUSTOMARY NORMS.  ALL
THAT SABBATINO SAYS IS THAT A DOMESTIC COURT IS NOT AN APPROPRIATE
FORUM WHEREIN TO APPLY A RULE OF CUSTOMARY INTERNATIONAL LAW UNLESS
THAT RULE IS SUPPORTED BY A CONSENSUS AT LEAST WIDE ENOUGH TO EMBRACE
THE PARTIES TO THE DISPUTE.  SUCH JUDICIAL SELF-RESTRAINT MAY NOT BE
APPROPRIATE IF THE FORUM IS AN INTERNATIONAL TRIBUNAL ENTRUSTED WITH
COMPETENCE BY BOTH SIDES, BUT THE SITUATION IS DIFFERENT FOR A DOMESTIC
COURT.  THE APPEARANCE OF IMPARTIALITY IS AS IMPORTANT TO THE
FORMULATION OF AUTHORITATIVE LAW AS IS THE ACTUALITY OF IMPARTIALITY. 
THE (CONSEQUENCE) IS THAT A DOMESTIC COURT, HOWEVER MANFULLY IT
STRUGGLES TO ACHIEVE IMPARTIALITY, WILL NOT BE ABLE TO RENDER AN
AUTHORITATIVE JUDGMENT WHEN THE ADJUDICATION REQUIRES IT TO DECIDE
WHETHER THE FORUM STATE OR THE FOREIGN STATE IS CORRECT ABOUT ITS
CONTENTIONS AS TO THE CONTENT OF CUSTOMARY INTERNATIONAL LAW.  THE ACT
OF STATE DOCTRINE, IN THE ABSENCE OF A FIRM AGREEMENT ON THE RULES OF
DECISION, ACKNOWLEDGES THIS INCAPACITY OF DOMESTIC COURTS."  FALK, N.
12, SUPRA, AT 415. 

/15/  SEE SABBATINO, 376 U.S.,AT 423, 427-428:  "THE ACT OF STATE
DOCTRINE DOES . . . HAVE 'CONSTITUTIONAL' UNDERPINNINGS."  AND "ITS
CONTINUING VITALITY DEPENDS ON ITS CAPACITY TO REFLECT THE PROPER
DISTRIBUTION OF FUNCTIONS BETWEEN THE JUDICIAL AND POLITICAL BRANCHES
OF THE GOVERNMENT ON MATTERS, BEARING UPON FOREIGN AFFAIRS." 

/16/  FOR AN ACCOUNT OF HOW POLITICAL CONSIDERATIONS MAY HAVE
AFFECTED A STATE DEPARTMENT DETERMINATION IN A SPECIFIC CASE, SEE NOTE,
75 HARV.L.REV.  1607, 1610-1611 (1962). 

HENRY HARFIELD ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

VICTOR RABINOWITZ ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS LEONARD B. BOUDIN. 

SOLICITOR GENERAL GRISWOLD FILED A MEMORANDUM FOR THE UNITED STATES
AS AMICUS CURIAE URGING REVERSAL. 
..END :





















LAIRD V. NELMS, 406 U.S. 797 


       LAIRD, SECRETARY OF DEFENSE, ET AL. V. NELMS ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 71-573.  ARGUED APRIL 17, 1972-- DECIDED JUNE 7, 1972 


DAMAGE FROM SONIC BOOM CAUSED BY MILITARY PLANES, WHERE NO NEGLIGENCE
WAS SHOWN EITHER IN THE PLANNING OR OPERATION OF THE FLIGHT, IS NOT
ACTIONABLE UNDER THE FEDERAL TORT CLAIMS ACT, WHICH DOES NOT AUTHORIZE
SUIT AGAINST THE GOVERNMENT ON CLAIMS BASED ON STRICT OR ABSOLUTE
LIABILITY FOR ULTRAHAZARDOUS ACTIVITY.  DALEHITE V. UNITED STATES, 346
U.S. 15.  PP. 798-803. 

442 F.2D 1163, REVERSED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, MARSHALL, BLACKMUN, AND POWELL, JJ., JOINED.  STEWARD,
J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED, POST, P.
803.  DOUGLAS, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT
UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 1346(B), 2671-2680.  THEY
SOUGHT RECOVERY FOR PROPERTY DAMAGE ALLEGEDLY RESULTING FROM A SONIC
BOOM CAUSED BY CALIFORNIA-BASED UNITED STATES MILITARY PLANES FLYING
OVER NORTH CAROLINA ON A TRAINING MISSION.  THE DISTRICT COURT ENTERED
SUMMARY JUDGMENT FOR PETITIONERS, BUT ON RESPONDENTS' APPEAL THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT REVERSED.  THAT COURT
HELD, THAT ALTHOUGH RESPONDENTS HAD BEEN UNABLE TO SHOW NEGLIGENCE
"EITHER IN THE PLANNING OR OPERATION OF THE FLIGHT," THEY WERE
NONETHELESS ENTITLED TO PROCEED ON A THEORY OF STRICT OR ABSOLUTE
LIABILITY FOR ULTRAHAZARDOUS ACTIVITIES CONDUCTED BY PETITIONERS IN
THEIR OFFICIAL CAPACITIES.  THAT COURT RELIED ON ITS EARLIER OPINION IN
UNITED STATES V. PRAYLOU, 208 F.2D 291 (1953), WHICH IN TURN HAD
DISTINGUISHED THIS COURT'S HOLDING IN DALEHITE V. UNITED STATES, 346
U.S. 15, 45 (1953).  WE GRANTED CERTIORARI.  404 U.S. 1037. 

DALEHITE HELD THAT THE GOVERNMENT WAS NOT LIABLE FOR THE EXTENSIVE
DAMAGE RESULTING FROM THE EXPLOSION OF TWO CARGO VESSELS IN THE HARBOR
OF TEXAS CITY, TEXAS, IN 1947.  THE COURT'S OPINION REJECTED VARIOUS
SPECIFICATIONS OF NEGLIGENCE ON THE PART OF GOVERNMENT EMPLOYEES THAT
HAD BEEN FOUND BY THE DISTRICT COURT IN THAT CASE, AND THEN WENT ON TO
TREAT PETITIONERS' CLAIM THAT THE GOVERNMENT WAS ABSOLUTELY OR STRICTLY
LIABLE BECAUSE OF ITS HAVING ENGAGED IN A DANGEROUS ACTIVITY.  THE
COURT SAID WITH RESPECT TO THIS ASPECT OF THE PLAINTIFF'S CLAIM: 

"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."  346 U.S., AT 44. 

THIS COURT'S RESOLUTION OF THE STRICT-LIABILITY ISSUE IN DALEHITE
DID NOT TURN ON THE QUESTION OF WHETHER THE LAW OF TEXAS OR OF SOME
OTHER STATE DID OR DID NOT RECOGNIZE STRICT LIABILITY FOR THE CONDUCT
OF ULTRAHAZARDOUS ACTIVITIES.  IT TURNED INSTEAD ON THE QUESTION OF
WHETHER THE LANGUAGE OF THE FEDERAL TORT CLAIMS ACT PERMITTED UNDER ANY
CIRCUMSTANCES THE IMPOSITION OF LIABILITY UPON THE GOVERNMENT WHERE
THERE HAD BEEN NEITHER NEGLIGENCE OR WRONGFUL ACT.  THE NECESSARY
CONSEQUENCE OF THE COURT'S HOLDING IN DALEHITE IS THAT THE STATUTORY
LANGUAGE "NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY EMPLOYEE OF THE
GOVERNMENT," IS A UNIFORM FEDERAL LIMITATION ON THE TYPES OF ACTS
COMMITTED BY ITS EMPLOYEES FOR WHICH THE UNITED STATES HAD CONSENTED TO
BE SUED.  REGARDLESS OF STATE LAW CHARACTERIZATION, THE FEDERAL TORT
CLAIMS ACT ITSELF PRECLUDES THE IMPOSITION OF LIABILITY IF THERE HAS
BEEN NO NEGLIGENCE OR OTHER FORM OF "MISFEASANCE OR NONFEASANCE," 346
U.S.,AT 45, ON THE PART OF THE GOVERNMENT. 

IT IS AT LEAST THEORETICALLY POSSIBLE TO ARGUE THAT SINCE DALEHITE
IN DISCUSSING THE LEGISLATIVE HISTORY OF THE ACT SAID THAT "WRONGFUL"
ACTS COULD INCLUDE SOME KIND OF TRESPASS, AND SINCE COURTS IMPOSED
LIABILITY IN SOME OF THE EARLY BLASTING CASES ON THE THEORY THAT THE
PLAINTIFF'S ACTION SOUNDED IN TRESPASS, LIABILITY COULD BE IMPOSED ON
THE GOVERNMENT IN THIS CASE ON A THEORY OF TRESPASS WHICH WOULD BE
WITHIN THE ACT'S WAIVER OF IMMUNITY.  WE BELIEVE, HOWEVER, THAT THERE
IS MORE THAN ONE REASON FOR REJECTING SUCH AN ALTERNATE BASIS OF
GOVERNMENTAL LIABILITY HERE. 

THE NOTION THAT A MILITARY PLANE ON A HIGH-ALTITUDE TRAINING FLIGHT
ITSELF INTRUDES UPON ANY PROPERTY INTEREST OF AN OWNER OF THE LAND OVER
WHICH IT FLIES WAS REJECTED IN UNITED STATES V. CAUSBY, 328 U.S. 256
(1946).  THERE THIS COURT, CONSTRUING THE AIR COMMERCE ACT OF 1926, 44
STAT. 568, AS AMENDED BY THE CIVIL AERONAUTICS ACT OF 1938, 52 STAT.
973, 49 U.S.C. 401, SAID: 

     "IT IS ANCIENT DOCTRINE THAT AT COMMON LAW OWNERSHIP OF THE

  LAND EXTENDED TO THE PERIPHERY OF THE UNIVERSE-- CUJUS EST SOLUM

  EJUS EST USQUE AD COELUM.  BUT THAT DOCTRINE HAS NO PLACE IN THE

  MODERN WORLD.  THE AIR IS A PUBLIC HIGHWAY, AS CONGRESS HAS

  DECLARED.  WERE THAT NOT TRUE, EVERY TRANSCONTINENTAL FLIGHT

  WOULD SUBJECT THE OPERATOR TO COUNTLESS TRESPASS SUITS.  COMMON

  SENSE REVOLTS AT THE IDEA.  TO RECOGNIZE SUCH PRIVATE CLAIMS TO

  THE AIRSPACE WOULD CLOG THESE HIGHWAYS, SERIOUSLY INTERFERE WITH

  THEIR CONTROL AND DEVELOPMENT IN THE PUBLIC INTEREST, AND

  TRANSFER INTO PRIVATE OWNERSHIP THAT TO WHICH ONLY THE PUBLIC HAS

  A JUST CLAIM."  328 U.S.,AT 260-261. 

THUS, QUITE APART FROM WHAT WOULD VERY LIKELY BE INSUPERABLE
PROBLEMS OF PROOF IN CONNECTING THE PASSAGE OF THE PLANE OVER THE
OWNER'S AIR SPACE WITH ANY ENSUING DAMAGE FROM A SONIC BOOM, THIS
VERSION OF THE TRESPASS THEORY IS RULED OUT BY ESTABLISHED FEDERAL
LAW.  PERHAPS THE PRECISE HOLDING OF UNITED STATES V. CAUSBY, SUPRA,
COULD BE SKIRTED BY ANALOGIZING THE PRESSURE WAVE OF AIR CHARACTERIZING
A SONIC BOOM TO THE CONCUSSION THAT ON OCCASION ACCOMPANIES BLASTING,
AND TREATING THE AIR WAVE STRIKING THE ACTUAL LAND OF THE PROPERTY
OWNER AS A DIRECT INTRUSION CAUSED BY THE PILOT OF THE PLANE IN THE
MOLD OF THE CLASSICAL COMMON-LAW THEORY OF TRESPASS. 

IT IS QUITE CLEAR, HOWEVER, THAT THE PRESENTLY PREVAILING VIEW AS TO
THE THEORY OF LIABILITY FOR BLASTING DAMAGE IS FRANKLY CONCEDED TO BE
STRICT LIABILITY FOR UNDERTAKING AN ULTRAHAZARDOUS ACTIVITY, RATHER
THAN ANY ATTENUATED NOTION OF COMMON-LAW TRESPASS.  SEE RESTATEMENT OF
TORTS SECS. 519, 520(E); W. PROSSER, LAW OF TORTS SEC. 75 (4TH ED.
1971).  WHILE A LEADING NORTH CAROLINA CASE ON THE SUBJECT OF STRICT
LIABILITY DISCUSSES THE DISTINCTION BETWEEN ACTIONS ON THE CASE AND
ACTIONS SOUNDING IN TRESPASS THAT THE EARLIER DECISIONS MADE, IT, TOO,
ACTUALLY GROUNDS LIABILITY ON THE BASIS THAT HE WHO ENGAGES IN
ULTRAHAZARDOUS ACTIVITY MUST PAY HIS WAY REGARDLESS OF WHAT PRECAUTIONS
HE MAY HAVE TAKEN.  GUILFORD REALTY & INS. CO. V. BLYTHE BROS. CO., 260
N.C. 69, 131 S.E.2D 900 (1963). 

MORE IMPORTANTLY, HOWEVER, CONGRESS IN CONSIDERING THE FEDERAL TORT
CLAIMS ACT CANNOT REALISTICALLY BE SAID TO HAVE DEALT IN TERMS OF
EITHER THE JURISPRUDENTIAL DISTINCTIONS PECULIAR TO THE FORMS OF ACTION
AT COMMON LAW OR THE METAPHYSICAL SUBTLETIES THAT CROP UP IN EVEN
CONTEMPORARY DISCUSSIONS OF TORT THEORY.  SEE PROSSER, SUPRA, AT 492
496.  THE LEGISLATIVE HISTORY DISCUSSED THE DALEHITE INDICATES THAT
CONGRESS INTENDED TO PERMIT LIABILITY ESSENTIALLY BASED ON THE
INTENTIONALLY WRONGFUL OR CARELESS CONDUCT OF GOVERNMENT EMPLOYEES, FOR
WHICH THE GOVERNMENT WAS TO BE MADE LIABLE ACCORDING TO STATE LAW UNDER
THE DOCTRINE OF RESPONDEAT SUPERIOR, BUT TO EXCLUDE LIABILITY BASED
SOLELY ON THE ULTRAHAZARDOUS NATURE OF AN ACTIVITY UNDERTAKEN BY THE
GOVERNMENT. 

A HOUSE JUDICIARY COMMITTEE MEMORANDUM EXPLAINING THE "DISCRETIONARY
FUNCTION" EXEMPTION FROM THE BILL WHEN THAT EXEMPTION FIRST APPEARED IN
THE DRAFT LEGISLATION IN 1942 MADE THE COMMENT THAT "THE CASES COVERED
BY THAT SUBSECTION WOULD PROBABLY HAVE BEEN EXEMPTED . . . BY JUDICIAL
CONSTRUCTION" IN ANY EVENT, BUT THAT THE EXEMPTION WAS INTENDED TO
PRECLUDE ANY POSSIBILITY. 

"THAT THE ACT WOULD BE CONSTRUED TO AUTHORIZE SUIT FOR DAMAGES
AGAINST THE GOVERNMENT GROWING OUT OF A LEGALLY AUTHORIZED ACTIVITY,
SUCH AS A FLOOD-CONTROL OR IRRIGATION PROJECT, WHERE NO WRONGFUL ACT OR
OMISSION 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 . . . ."  HEARINGS ON H.R. 5373 AND H.R.
6463 BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY, 77TH CONG., 2ND
SESS., SER.  13, PP. 65-66 (1942). 

THE SAME MEMORANDUM, AFTER NOTING THE EROSION OF THE DOCTRINE OF
SOVEREIGN IMMUNITY OVER THE YEARS, OBSERVED WITH RESPECT TO THE BILL
GENERALLY: 

"YET A LARGE AND HIGHLY IMPORTANT AREA REMAINS IN WHICH NO
SATISFACTORY REMEDY HAD BEEN PROVIDED FOR THE WRONGS OF GOVERNMENT
OFFICERS OR EMPLOYEES, THE ORDINARY 'COMMONLAW" TYPE OF TORT, SUCH AS
PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY THE NEGLIGENT OPERATION OF
AN AUTOMOBILE."  ID., AT 39. 

THE TYPE OF TRESPASS SUBSUMED UNDER THE ACT'S LANGUAGE MAKING THE
GOVERNMENT LIABLE FOR "WRONGFUL" ACTS OF ITS EMPLOYEES IS EXEMPLIFIED
BY THE CONDUCT OF THE GOVERNMENT AGENTS IN HATAHLEY V. UNITED STATES,
351 U.S. 173, 181.  LIABILITY OF THIS TYPE UNDER THE ACT IS NOT TO BE
BROADENED BEYOND THE INTENT OF CONGRESS BY DRESSING UP THE SUBSTANCE OF
STRICT LIABILITY FOR ULTRAHAZARDOUS ACTIVITIES IN THE GARMENTS OF
COMMON-LAW TRESPASS.  TO PERMIT RESPONDENT TO PROCEED ON A TRESPASS
THEORY HERE WOULD BE TO JUDICIALLY ADMIT AT THE BACK DOOR THAT WHICH
HAS BEEN LEGISLATIVELY TURNED AWAY AT THE FRONT DOOR.  WE DO NOT
BELIEVE THE ACT PERMITS SUCH A RESULT. 

SHORTLY AFTER THE DECISION OF THIS COURT IN DALEHITE, THE FACTS OF
THE TEXAS CITY CATASTROPHE WERE PRESENTED TO CONGRESS IN AN EFFORT TO
OBTAIN LEGISLATIVE RELIEF FROM THAT BODY.  CONGRESS, AFTER CONDUCTING
HEARINGS AND RECEIVING REPORTS, ULTIMATELY ENACTED A BILL GRANTING
COMPENSATION TO THE VICTIMS IN QUESTION.  69 STAT. 707; H.R. REP. NO.
2024, 83D CONG., 2D SESS. (1954); S. REP. NO. 2363, 83D CONG., 2D SESS.
(1954); H.R. REP. NO. 1305, 84TH CONG., 1ST SESS. (1955); H.R. REP. NO.
1623, 84TH CONG., 1ST SESS. (1955); S. REP. NO. 684, 84TH CONG., 1ST
SESS. (1955).  AT NO TIME DURING THESE HEARINGS WAS THERE ANY EFFORT
MADE TO MODIFY THIS COURT'S CONSTRUCTION OF THE TORT CLAIMS ACT IN
DALEHITE.  BOTH BY REASON OF STARE DECISIS AND BY REASON OF CONGRESS'
FAILURE TO MAKE ANY STATUTORY CHANGE UPON AGAIN REVIEWING THE SUBJECT,
WE REGARD THE PRINCIPLE ENUNCIATED IN DALEHITE AS CONTROLLING HERE. 

SINCE DALEHITE HELD THAT THE FEDERAL TORT CLAIMS ACT DID NOT
AUTHORIZE SUIT AGAINST THE GOVERNMENT ON CLAIMS BASED ON STRICT
LIABILITY FOR ULTRAHAZARDOUS ACTIVITY, THE COURT OF APPEALS IN THE
INSTANT CASE ERRED IN REACHING A CONTRARY CONCLUSION.  WHILE AS A
MATTER OF PRACTICE WITHIN THE CIRCUIT IT MAY HAVE BEEN PROPER TO RELY
UPON UNITED STATES V. PRAYLOU, 208 F.2D 291, IT IS CLEAR THAT THE
HOLDING OF THE LATTER CASE PERMITTING IMPOSITION OF STRICT LIABILITY ON
THE GOVERNMENT WHERE STATE LAW PERMITS IT IS LIKEWISE INCONSISTENT WITH
DALEHITE.  DALEHITE DID NOT DEPEND ON THE FACTUAL QUESTION OF WHETHER
THE GOVERNMENT WAS HANDLING DANGEROUS PROPERTY, AS OPPOSED TO OPERATING
A DANGEROUS INSTRUMENT BUT, RATHER, ON THE COURT'S DETERMINATION THAT
THE ACT DID NOT AUTHORIZE THE IMPOSITION OF STRICT LIABILITY OF ANY
SORT UPON THE GOVERNMENT.  INDEED, EVEN THE DISSENTING OPINION IN
DALEHITE DID NOT DISAGREE WITH THE CONCLUSION OF THE MAJORITY ON THAT
POINT. 

OUR REAFFIRMATION OF THE CONSTRUCTION PUT ON THE FEDERAL TORT CLAIMS
ACT IN DALEHITE MAKES IT UNNECESSARY TO TREAT THE SCOPE OF THE
DISCRETIONARY-FUNCTION EXEMPTION CONTAINED IN THE ACT, OR THE OTHER
MATTERS DEALT WITH BY THE COURT OF APPEALS. 

           REVERSED. 

MR. JUSTICE DOUGLAS, HAVING HEARD THE ARGUMENT, WITHDREW FROM
PARTICIPATION IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

UNDER THE FEDERAL TORT CLAIMS ACT, THE UNITED STATES IS LIABLE FOR
INJURIES TO PERSONS OR PROPERTY 

"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."  28 U.S.C. 1346(B).  THE
COURT OF APPEALS IN THIS CASE FOUND THAT THE LAW OF NORTH CAROLINA
RENDERS A PERSON WHO CREATES A SONIC BOOM ABSOLUTELY LIABLE FOR ANY
INJURIES CAUSED THEREBY, AND THAT FINDING IS NOT CHALLENGED HERE.  /1/
AND WHILE THE PETITIONERS ARGUE THAT THE CONDUCT INVOLVED FALLS WITHIN
ONE OF THE NUMEROUS EXPRESS EXCEPTIONS TO THE COVERAGE OF THE ACT
CONTAINED IN SEC. 2680, /2/  THE COURT TODAY DOES NOT REACH THAT
ISSUE.  RATHER, THE COURT HOLDS THAT THE WORDS "NEGLIGENT OR WRONGFUL
ACT OR OMISSION" PRECLUDE THE APPLICATION TO THE UNITED STATES OF ANY
STATE LAW UNDER WHICH PERSONS MAY BE HELD ABSOLUTELY LIABLE FOR
INJURIES CAUSED BY CERTAIN KINDS OF CONDUCT.  IN MY VIEW, THIS
CONCLUSION IS NOT JUSTIFIED BY THE LANGUAGE OR THE HISTORY OF THE ACT,
AND IS PLAINLY CONTRARY TO THE STATUTORY PURPOSE.  I THEREFORE
DISSENT. 

IN THE VAST MAJORITY OF CASES IN THE LAW OF TORTS, LIABILITY IS
PREDICATED ON A BREACH OF SOME LEGAL DUTY OWED BY THE DEFENDANT TO THE
PLAINTIFF, WHETHER THAT DUTY INVOLVES EXERCISING REASONABLE CARE IN
ONE'S ACTIVITIES OR REFRAINING FROM CERTAIN ACTIVITIES ALTOGETHER.  THE
LAW OF MOST JURISDICTIONS, HOWEVER, IMPOSES LIABILITY FOR HARM CAUSED
BY CERTAIN NARROWLY LIMITED KINDS OF ACTIVITIES EVEN THOUGH THOSE
ACTIVITIES ARE NOT PROHIBITED AND EVEN THOUGH THE ACTOR MAY HAVE
EXERCISED THE UTMOST CARE.  SUCH CONDUCT IS "TORTIOUS," NOT BECAUSE THE
ACTOR IS NECESSARILY BLAMEWORTHY, BUT BECAUSE SOCIETY HAS MADE A
JUDGMENT THAT WHILE THE CONDUCT IS SO SOCIALLY VALUABLE THAT IT SHOULD
NOT BE PROHIBITED, IT NEVERTHELESS CARRIES SUCH A HIGH RISK OF HARM TO
OTHERS, EVEN IN THE ABSENCE OF NEGLIGENCE, THAT ONE WHO ENGAGES IN IT
SHOULD MAKE GOOD ANY HARM CAUSED TO OTHERS THEREBY.  SEE GENERALLY 2
F.HARPER & F.JAMES, LAW OF TORTS 785-795, 815-816 (1956); W. PROSSER,
LAW OF TORTS 442-496 (4TH ED. 1971).     WHILE THE DOCTRINE OF ABSOLUTE
LIABILITY IS NOT ENCOUNTERED IN MANY SITUATIONS EVEN UNDER MODERN TORT
LAW, IT WAS NEVERTHELESS WELL ESTABLISHED AT THE TIME THE TORT CLAIMS
ACT WAS ENACTED, AND THERE IS NOTHING IN THE LANGUAGE OR THE HISTORY OF
THE ART TO SUPPORT THE NOTION THAT THIS DOCTRINE ALONE, AMONG ALL THE
RULES GOVERNING TORT LIABILITY IN THE VARIOUS STATES, WERE CONSIDERED
INAPPLICABLE IN CASES ARISING UNDER THE ACT.  THE LEGISLATIVE HISTORY
QUOTED BY THE COURT RELATES SOLELY TO THE "DISCRETIONARY FUNCTION"
EXCEPTION CONTAINED IN SEC. 2680, AN EXCEPTION UPON WHICH THE COURT
SPECIFICALLY DECLINES TO RELY.  /3/  AS I READ THE ACT AND THE
LEGISLATIVE HISTORY, THE PHRASE "NEGLIGENT OR WRONGFUL ACT OR OMISSION"
WAS INTENDED TO INCLUDE THE ENTIRE RANGE OF CONDUCT CLASSIFIED AS
TORTIOUS UNDER STATE LAW.  /4/  THE ONLY INTENDED EXCEPTIONS TO THIS
SWEEPING WAIVER OF GOVERNMENTAL IMMUNITY WERE THOSE EXPRESSLY SET FORTH
AND NOW COLLECTED IN SEC. 2680.  /5/  THIS INTERPRETATION WAS PUT UPON
THE ACT BY THE LEGISLATIVE COMMITTEES THAT RECOMMENDED ITS PASSAGE IN
1946:  "THE PRESENT BILL WOULD ESTABLISH A UNIFORM SYSTEM . . .
PERMITTING SUIT TO BE BROUGHT ON ANY TORT CLAIM . . . WITH THE
EXCEPTION OF CERTAIN CLASSES OF TORTS EXPRESSLY EXEMPTED FROM THE
OPERATION OF THE ACT."  H.R. REP. NO. 1287, 79TH CONG., 1ST SESS., 3;
S. REP. NO. 1400, 79TH CONG., 2D SESS., 31.  SEE PECK, ABSOLUTE
LIABILITY AND THE FEDERAL TORT CLAIMS ACT, 9 STAN.L.REV.  433, 441-450
(1957). 

THE COURT RESTS ITS CONCLUSION ON LANGUAGE FROM DALEHITE V. UNITED
STATES, 346 U.S. 15, WHERE A FOUR-MAN MAJORITY OF THE COURT, IN AN
OPINION DEALING PRIMARILY WITH THE "DISCRETIONARY FUNCTION" EXCEPTION,
HELD THE DOCTRINE OF ABSOLUTE LIABILITY INAPPLICABLE IN THAT EXTREMELY
UNUSUAL CASE ARISING UNDER THE FEDERAL TORT CLAIMS ACT.  THAT LANGUAGE
HAS BEEN SEVERELY CRITICIZED; /6/  IT HAS NOT SINCE BEEN RELIED UPON IN
ANY DECISION OF THIS COURT; AND IT WAS REJECTED AS A GENERAL PRINCIPLE
BY AT LEAST ONE COURT OF APPEALS LESS THAN A YEAR AFTER DALEHITE WAS
DECIDED.  UNITED STATES V. PRAYLOU, 208 F.2D 291, 295.  MOREOVER,
DALEHITE REPRESENTED AN APPROACH TO INTERPRETATION OF THE ACT THAT WAS
ABRUPTLY CHANGED ONLY TWO YEARS LATER IN INDIAN TOWING CO. V. UNITED
STATES, 350 U.S. 61.  THAT DECISION REJECTED THE PROPOSITION THAT THE
UNITED STATES WAS IMMUNE FROM LIABILITY WHERE THE ACTIVITY INVOLVED WAS
"GOVERNMENTAL" RATHER THAN "PROPRIETARY"-- A PROPOSITION THAT SEEMINGLY
HAD BEEN ESTABLISHED IN DALEHITE.  /7/  AND WHILE THE DALEHITE OPINION
EXPLICITLY CREATED A PRESUMPTION IN FAVOR OF SOVEREIGN IMMUNITY, TO BE
OVERCOME ONLY WHERE RELINQUISHMENT BY CONGRESS WAS "CLEAR," 346 U.S.,AT
30-31, THE COURT IN INDIAN TOWING RECOGNIZED THAT THE TORT CLAIMS ACT
"CUTS THE GROUND FROM UNDER" THE DOCTRINE OF SOVEREIGN IMMUNITY, AND
CAUTIONED THAT A COURT SHOULD NOT "AS A SELF-CONSTITUTED GUARDIAN OF
THE TREASURY IMPORT IMMUNITY BACK INTO A STATUTE DESIGNED TO LIMIT
IT."  350 U.S.,AT 65, 69.  SEE ALSO RAYONIER, INC. V. UNITED STATES,
352 U.S. 315, 319-320.  THESE DEVELOPMENTS, TOGETHER WITH AN APPROVING
CITATION OF THE PRAYLOU CASE IN RAYONIER, SUPRA, AT 319 N. 2, HAVE
UNTIL TODAY BEEN GENERALLY UNDERSTOOD TO MEAN THAT THE LANGUAGE IN
DALEHITE REJECTING THE ABSOLUTE-LIABILITY DOCTRINE HAD BEEN IMPLICITLY
ABANDONED.  /8/ 

THE RULE ANNOUNCED BY THE COURT TODAY SEEMS TO ME CONTRARY TO THE
WHOLE POLICY OF THE TORT CLAIMS ACT.  FOR THE DOCTRINE OF ABSOLUTE
LIABILITY IS APPLICABLE NOT ONLY TO SONIC BOOMS, BUT TO OTHER
ACTIVITIES THAT THE GOVERNMENT CARRIES ON IN COMMON WITH MANY PRIVATE
CITIZENS.  ABSOLUTE LIABILITY FOR INJURY CAUSED BY THE CONCUSSION OR
DEBRIS FROM DYNAMITE BLASTING, FOR EXAMPLE, IS RECOGNIZED BY AN
OVERWHELMING MAJORITY OF STATE COURTS.  /9/  A PRIVATE PERSON WHO
DETONATES AN EXPLOSION IN THE PROCESS OF BUILDING A ROAD IS LIABLE FOR
INJURIES TO OTHERS CAUSED THEREBY UNDER THE LAW OF MOST STATES EVEN
THOUGH HE TOOK ALL PRACTICABLE PRECAUTIONS TO PREVENT SUCH INJURIES, IN
THE SOUND PRINCIPLE THAT HE WHO CREATES SUCH A HAZARD SHOULD MAKE GOOD
THE HARM THAT RESULTS.  YET IF EMPLOYEES OF THE UNITED STATES ENGAGE IN
EXACTLY THE SAME CONDUCT WITH AN IDENTICAL RESULT, THE UNITED STATES
WILL NOT, UNDER THE PRINCIPLE ANNOUNCED BY THE COURT TODAY, BE LIABLE
TO THE INJURED PARTY.  NOTHING IN THE LANGUAGE OR THE LEGISLATIVE
HISTORY OF THE ACT COMPELS SUCH A RESULT, AND WE SHOULD NOT LIGHTLY
CONCLUDE THAT CONGRESS INTENDED TO CREATE A SITUATION SO MUCH AT ODDS
WITH COMMON SENSE AND THE BASIC RATIONALE OF THE ACT.  WE RECOGNIZED
THAT RATIONAL IN RAYONIER, SUPRA, A CASE INVOLVING NEGLIGENCE BY
EMPLOYEES OF THE UNITED STATES IN CONTROLLING A FOREST FIRE: 

"CONGRESS WAS AWARE THAT WHEN LOSSES CAUSED BY SUCH NEGLIGENCE ARE
CHARGED AGAINST THE PUBLIC TREASURY THEY ARE IN EFFECT SPREAD AMONG ALL
THOSE WHO CONTRIBUTE FINANCIALLY TO THE SUPPORT OF THE GOVERNMENT AND
THE RESULTING BURDEN ON EACH TAXPAYER IS RELATIVELY SLIGHT.  BUT WHEN
THE ENTIRE BURDEN FALLS ON THE INJURED PARTY IT MAY LEAVE HIM DESTITUTE
OR GRIEVOUSLY HARMED.  CONGRESS COULD, AND APPARENTLY DID, DECIDE THAT
THIS WOULD BE UNFAIR WHEN THE PUBLIC AS A WHOLE BENEFITS FROM THE
SERVICES PERFORMED BY GOVERNMENT EMPLOYEES."  352 U.S.,AT 320. 

FOR REASONS STATED, I WOULD HOLD THAT THE DOCTRINE OF ABSOLUTE
LIABILITY IS APPLICABLE TO CONDUCT OF EMPLOYEES OF THE UNITED STATES
UNDER THE SAME CIRCUMSTANCES AS THOSE IN WHICH IT IS APPLIED TO THE
CONDUCT OF PRIVATE PERSONS UNDER THE LAW OF THE STATE WHERE THE CONDUCT
OCCURS.  THAT HOLDING WOULD NOT BY ITSELF BY DISPOSITIVE OF THIS CASE,
HOWEVER, FOR THE PETITIONERS ARGUE THAT LIABILITY IS PRECLUDED BY THE
"DISCRETIONARY FUNCTION" EXCEPTION IN THE ACT.  WHILE THE COURT DOES
NOT REACH THIS ISSUE, I SHALL STATE BRIEFLY THE REASONS FOR MY
CONCLUSION THAT THE EXCEPTION IS INAPPLICABLE IN THIS CASE. 

NO RIGHT OF ACTION LIES UNDER THE TORT CLAIMS ACT FOR 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."  28 U.S.C. 2680(A).  THE ASSISTANT ATTORNEY GENERAL WHO
TESTIFIED ON THE BILL BEFORE THE HOUSE COMMITTEE INDICATED THAT THIS
PROVISION WAS INTENDED TO CREATE NO EXCEPTIONS BEYOND THOSE THAT COURTS
WOULD PROBABLY CREATE WITHOUT IT: 

"IT IS LIKELY THAT THE CASES EMBRACED WITHIN THAT SUBSECTION WOULD
HAVE BEEN EXEMPTED FROM (A BILL THAT DID NOT INCLUDE THE EXCEPTION) 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 (THE RECOMMENDED BILL) MAKES
THIS SPECIFIC."  HEARINGS ON H.R. 5373 AND H.R. 6463 BEFORE THE HOUSE
COMMITTEE ON THE JUDICIARY, 77TH CONG., 2D SESS., SER.  13, P. 29. 

THE DALEHITE OPINION SEEMED TO SAY THAT NO ACTION OF A GOVERNMENT
EMPLOYEE COULD BE MADE THE BASIS FOR LIABILITY UNDER THE ACT IF THE
ACTION INVOLVED "POLICY JUDGMENT AND DECISION."  346 U.S.,AT 36. 
DECISIONS IN THE COURTS OF APPEALS FOLLOWING DALEHITE HAVE INTERPRETED
THIS LANGUAGE AS DRAWING A DISTINCTION BETWEEN "POLICY" AND
"OPERATIONAL" DECISIONS, WITH THE LATTER FALLING OUTSIDE THE
EXCEPTION.  /10/  THAT DISTINCTION HAS BEDEVILED THE COURTS THAT HAVE
ATTEMPTED TO APPLY IT TO TORTS OUTSIDE ROUTINE CATEGORIES SUCH AS
AUTOMOBILE ACCIDENTS, BUT THERE IS NO NEED IN THE PRESENT CASE TO
EXPLORE THE LIMITS OF THE DISCRETIONARY FUNCTION EXCEPTION. 

THE LEGISLATIVE HISTORY INDICATES THAT THE PURPOSE OF THIS STATUTORY
EXCEPTION WAS TO AVOID ANY POSSIBILITY THAT POLICY DECISIONS OF
CONGRESS, OF THE EXECUTIVE, OR OF ADMINISTRATIVE AGENCIES WOULD BE
SECOND-GUESSED BY COURTS IN THE CONTEXT OF TORT ACTIONS.  /11/  THERE
IS NO SUCH DANGER IN THIS CASE, FOR LIABILITY DOES NOT DEPEND UPON A
JUDGMENT AS TO WHETHER GOVERNMENT OFFICIALS ACTED IRRESPONSIBLY OR
ILLEGALLY.  RATHER, ONCE THE CREATION OF SONIC BOOMS IS DETERMINED TO
BE AN ACTIVITY AS TO WHICH THE DOCTRINE OF ABSOLUTE LIABILITY APPLIES,
THE ONLY QUESTIONS FOR THE COURT RELATE TO CAUSATION AND DAMAGES. 
WHETHER OR NOT THE DECISION TO FLY A MILITARY AIRCRAFT OVER THE
RESPONDENTS'  PROPERTY, AT A GIVEN ALTITUDE AND AT A SPEED THREE TIMES
THE SPEED OF SOUND, WAS A DECISION AT THE "POLICY" OR THE "OPERATIONAL"
LEVEL, THE PROPRIETY OF THAT DECISION IS IRRELEVANT TO THE QUESTION OF
LIABILITY IN THIS CASE, AND THUS THE DISCRETIONARY FUNCTION EXCEPTION
DOES NOT APPLY. 

/1/  THE QUESTION WHETHER DAMAGE CAUSED BY SONIC BOOMS IS
RECOVERABLE ON A THEORY OF ABSOLUTE LIABILITY HAS RECEIVED CONSIDERABLE
ATTENTION FROM COMMENTATORS, MOST OF WHOM HAVE CONCLUDED THAT THERE
SHOULD BE SUCH RECOVERY, AT LEAST UNDER CERTAIN CONDITIONS.  SEE, E.G.,
NOTE, 32 J.AIR LAW & COMMERCE 596, 602-605 (1966); NOTE, 39 TULANE
L.REV.  145 (1964); COMMENT, 31 SO.CAL.L.REV.  259, 266-274 (1958); W.
PROSSER, LAW OF TORTS 516 (4TH ED. 1971). 

/2/  SEE N. 5, INFRA. 

/3/  THE COURT'S OPINION REFERS TO LANGUAGE IN DALEHITE V. UNITED
STATES, 346 U.S. 15, WHICH IN TURN RELIED ON A FRAGMENT OF LEGISLATIVE
HISTORY, FOR THE PROPOSITION THAT THE WORDS "WRONGFUL ACT" AS USED IN
SEC. 1346(B) REFER ONLY TO TRESPASSES.  THE LEGISLATIVE HISTORY CITED
BY THE COURT IN DALEHITE, CONSISTING OF A STATEMENT BY A SPECIAL
ASSISTANT TO THE ATTORNEY GENERAL AT A COMMITTEE HEARING, MERELY
SUGGESTED TRESPASS AS ONE EXAMPLE OF THE KINDS OF CONDUCT THAT WOULD
NOT BE EMBRACED BY THE WORD "NEGLIGENCE" BUT WHICH THE ACT WAS INTENDED
TO REACH.  AS THE COURT TODAY OBSERVES, MANY OF THE STATE CASES
APPLYING WHAT IS ESSENTIALLY THE DOCTRINE OF ABSOLUTE LIABILITY FOR
ULTRAHAZARDOUS ACTIVITIES SPEAK IN TERMS OF "TRESPASS."  SEE, E.G.,
GUILFORD REALTY & INS. CO. V. BLYTHE BROS. CO., 260 N.C. 69, 131 S.E.2D
900 (1963); ENOS COAL MINING CO. V. SCHUCHART, 243 IND. 692, 188 N.E.2D
406 (1963); WHITNEY V. RALPH MYERS CONTRACTING CORP., 146 W.VA. 130,
118 S.E.2D 622 (1961).  THE SIMILARITY BETWEEN THE THEORIES OF TRESPASS
AND ABSOLUTE LIABILITY IN THE BLASTING CASES LEADS THE COURT TO
CONCLUDE THAT THE ACT DOES NOT PERMIT RECOVERY ON A "TRESPASS" THEORY
IN THIS CASE BECAUSE THE ACT DOES NOT PERMIT RECOVERY ON AN ABSOLUTE
LIABILITY THEORY.  BUT IF CONGRESS INTENDED, AS THE COURT ASSUMES, THAT
"TRESPASSES" BE COVERED BY THE ACT, I SHOULD THINK THE SIMILARITY
BETWEEN THE TWO THEORIES WOULD MORE LOGICALLY LEAD TO A CONCLUSION THAT
ABSOLUTE-LIABILITY SITUATIONS ARE LIKEWISE COVERED. 

/4/  A BILL PASSED BY THE SENATE IN 1942 COVERED ONLY ACTIONS BASED
ON THE "NEGLIGENCE" OF GOVERNMENT EMPLOYEES.  S. 2221, 77TH CONG., 2D
SESS.  THE HOUSE COMMITTEE SUBSTITUTED THE PHRASE "NEGLIGENT OR
WRONGFUL ACT OR OMISSION," SAYING THAT THE "COMMITTEE PREFERS ITS
LANGUAGE AS IT WOULD AFFORD RELIEF FOR CERTAIN ACTS OR OMISSIONS WHICH
MAY BE WRONGFUL BUT NOT NECESSARILY NEGLIGENT."  H.R. REP. NO. 2245,
77TH CONG., 2D SESS., 11.  THE LANGUAGE USED BY THE HOUSE COMMITTEE WAS
CARRIED OVER INTO THE BILL FINALLY ENACTED IN 1946, WITHOUT FURTHER
MENTION IN THE COMMITTEE REPORTS OF THE INTENDED SCOPE OF THE WORDS
"WRONGFUL ACT." 

/5/  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. 

"(B) ANY CLAIM ARISING OUT OF THE LOSS, MISCARRIAGE, OR NEGLIGENT
TRANSMISSION OF LETTERS OR POSTAL MATTER. 

"(C) ANY CLAIM ARISING IN RESPECT OF THE ASSESSMENT OR COLLECTION OF
ANY TAX OR CUSTOMS DUTY, OR THE DETENTION OF ANY GOODS OR MERCHANDISE
BY ANY OFFICER OF CUSTOMS OR EXCISE OR ANY OTHER LAW-ENFORCEMENT
OFFICER. 

"(D) ANY CLAIM FOR WHICH A REMEDY IS PROVIDED BY SECTIONS 741-752,
781-790 OF TITLE 46, RELATING TO CLAIMS OR SUITS IN ADMIRALTY AGAINST
THE UNITED STATES. 

"(E) ANY CLAIM ARISING OUT OF AN ACT OR OMISSION OF ANY EMPLOYEE OF
THE GOVERNMENT IN ADMINISTERING THE PROVISIONS OF SECTIONS 1-31 OF
TITLE 50, APPENDIX. 

"(F) ANY CLAIM FOR DAMAGES CAUSED BY THE IMPOSITION OR ESTABLISHMENT
OF A QUARANTINE BY THE UNITED STATES. 

"(G) REPEALED. 

"(H) ANY CLAIM ARISING OUT OF ASSAULT, BATTERY, FALSE INPRISONMENT,
FALSE ARREST, MALICIOUS PROSECUTION, ABUSE OF PROCESS, LIBEL, SLANDER,
MISREPRESENTATION, DECEIT, OR INTERFERENCE WITH CONTRACT RIGHTS. 

"(I) ANY CLAIM FOR DAMAGES CAUSED BY THE FISCAL OPERATIONS OF THE
TREASURY OR BY THE REGULATION OF THE MONETARY SYSTEM. 

"(J) ANY CLAIM ARISING OUT OF THE COMBATANT ACTIVITIES OF THE
MILITARY OR NAVAL FORCES, OR THE COAST GUARD, DURING TIME OF WAR. 

"(K) ANY CLAIM ARISING IN A FOREIGN COUNTRY. 

"(L) ANY CLAIM ARISING FROM THE ACTIVITIES OF THE TENNESSEE VALLEY
AUTHORITY. 

"(M) ANY CLAIM ARISING FROM THE ACTIVITIES OF THE PANAMA CANAL
COMPANY. 

"(N) ANY CLAIM ARISING FROM THE ACTIVITIES OF A FEDERAL LAND BANK, A
FEDERAL INTERMEDIATE CREDIT BANK, OR A BANK FOR COOPERATIVES."     /6/
SEE, E.G., PECK, ABSOLUTE LIABILITY AND THE FEDERAL TORT CLAIMS ACT, 9
STAN.L.REV.  433 (1957); JACOBY, ABSOLUTE LIABILITY UNDER THE FEDERAL
TORT CLAIMS ACT, 24 FED.BAR.J. 139 (1964); 2 F.HARPER & F.JAMES, LAW OF
TORTS 860 (1956). 

/7/  FOUR MEMBERS OF THE COURT DISSENTED, SAYING THAT THE FAILURE OF
CONGRESS TO AMEND THE ACT AFTER DALEHITE SHOULD HAVE BEEN TAKEN AS
INDICATING APPROVAL BY CONGRESS OF THE INTERPRETATION GIVEN TO THE ACT
IN THAT CASE.  350 U.S.,AT 74. 

/8/  SEE PECK, SUPRA, N. 6, AT 435; JACOBY, SUPRA, N. 6, AT 140;
COMMENT, 31 SO.CAL.L.REV.  259, 266 N. 56; DOSTAL, AVIATION LAW UNDER
THE FEDERAL TORT CLAIMS ACT, 24 FED.BAR.J. 165, 177 (1964). 

/9/  SEE, E.G., WHITMAN HOTEL CORP. V. ELLIOTT & WATROUS ENG. CO.,
137 CONN. 562, 79 A.2D 591 (1951); LOUDEN V. CITY OF CINCINNATI, 90
OHIO ST. 144, 106 N.E. 970 (1914); THIGPEN V. SKOUSEN & HISE, 64 N.M.
290, 327 P.2D 802 (1958); WALLACE V. A. H. GUION & CO., 237 S.C. 349,
117 S.E.2D 359 (1960); AND CASES CITED IN N. 3, SUPRA.  SEE GENERALLY
W. PROSSER, LAW OF TORTS 514 (4TH ED. 1971). 

/10/  SEE, E.G., EASTERN AIR LINES V. UNION TRUST CO., 221 F.2D 62,
AFF'D, 350 U.S. 907; FAIR V. UNITED STATES, 234 F.2D 288; HENDRY V.
UNITED STATES, 418 F.2D 774.  FOR A THOROUGH DISCUSSION OF THE
"POLICY/OPERATIONAL" DISTINCTION THAT HAS DEVELOPED, SEE REYNOLDS, THE
DISCRETIONARY FUNCTION EXCEPTION OF THE FEDERAL TORT CLAIMS ACT, 57
GEO.L.J. 81 (1968). 

/11/  THE POLICY BEHIND THE EXCEPTION IS EXPLAINED BY ONE LEADING
COMMENTATOR AS FOLLOWS:  "ALMOST NO ONE CONTENDS THAT THERE SHOULD BE
COMPENSATION FOR ALL THE ILLS THAT RESULT FROM GOVERNMENTAL
OPERATIONS.  NO ONE, FOR INSTANCE, SUGGESTS THAT THERE SHOULD BE
LIABILITY FOR THE INJURIOUS CONSEQUENCE OF POLITICAL BLUNDERS SUCH AS
THE UNWISE IMPOSITION OF TARIFF DUTIES OR THE PREMATURE LIFTING OF OPA
CONTROLS . . . . THE SEPARATION OF POWERS IN OUR FORM OF GOVERNMENT AND
A DECENT REGARD BY THE JUDICIARY FOR ITS CO-ORDINATE BRANCHES SHOULD
MAKE COURTS RELUCTANT TO SIT IN JUDGMENT ON THE WISDOM OR
REASONABLENESS OF LEGISLATIVE OR EXECUTIVE POLITICAL ACTION.  MOREOVER,
COURTS ARE NOT PARTICULARLY WELL SUITED TO PURSUE THE EXAMINATIONS THAT
WOULD BE NECESSARY TO MAKE THIS KIND OF JUDGMENT."  JAMES, THE FEDERAL
TORT CLAIMS ACT AND THE "DISCRETIONARY FUNCTION" EXCEPTION:  THE
SLUGGISH RETREAT OF AN ANCIENT IMMUNITY, 10 U.FLA.L.REV.  184 (1957). 

RICHARD B. STONE ARGUED THE CAUSE FOR PETITIONERS.  ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL GRAY, WM.
TERRY BRAY, ALAN S. ROSENTHAL, AND ROBERT E. KOPP. 

GEORGE E. ALLEN, SR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 
..END :





AIKENS V. CALIFORNIA, 406 U.S. 813 


       AIKENS V. CALIFORNIA

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

        NO. 68-5027.  ARGUED JANUARY 17, 1972-- DECIDED JUNE 7,

           1972 


CALIFORNIA SUPREME COURT DECISION INVALIDATING DEATH PENALTY UNDER
STATE CONSTITUTION HAS MOOTED THIS CASE, WHERE CERTIORARI WAS GRANTED
TO CONSIDER WHETHER DEATH PENALTY COMPORTS WITH FEDERAL CONSTITUTION. 

70 CAL.2D 369, 450 P.2D 258, CERTIORARI DISMISSED. 

PER CURIAM. 

PETITIONER IN THIS CASE, WHICH HAS BEEN ORALLY ARGUED AND IS NOW SUB
JUDICE, HAS FILED A SUGGESTION OF MOOTNESS AND MOTION FOR REMAND BASED
ON THE INTERVENING DECISION OF THE CALIFORNIA SUPREME COURT IN PEOPLE
V. ANDERSON, 6 CAL.3D 628, 493 P.2D 880 (1972).  THAT DECISION DECLARED
CAPITAL PUNISHMENT IN CALIFORNIA UNCONSTITUTIONAL UNDER ART. 1, SEC. 6,
OF THE STATE CONSTITUTION.  THE DECISION RESTED ON AN ADEQUATE STATE
GROUND AND THE STATE'S PETITION FOR WRIT OF CERTIORARI WAS DENIED.  406
U.S. 958.  THE CALIFORNIA SUPREME COURT DECLARED IN THE ANDERSON CASE
THAT ITS DECISION WAS FULLY RETROACTIVE AND STATED THAT ANY PRISONER
CURRENTLY UNDER SENTENCE OF DEATH COULD PETITION A SUPERIOR COURT TO
MODIFY ITS JUDGMENT.  PETITIONER THUS NO LONGER FACES A REALISTIC
THREAT OF EXECUTION, AND THE ISSUE ON WHICH CERTIORARI WAS GRANTED--
THE CONSTITUTIONALITY OF THE DEATH PENALTY UNDER THE FEDERAL
CONSTITUTION-- IS NOW MOOT IN HIS CASE.  ACCORDINGLY THE WRIT OF
CERTIORARI IS DISMISSED. 

ANTHONY G. AMSTERDAM ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WERE JEROME B. FALK, JR., PAUL N. HALVONIK, MICHAEL MELTSNER,
JACK GREENBERG, JAMES M. NABRIT III, CHARLES STEPHEN RALSTON, JACK
HIMMELSTEIN, AND ELIZABETH B. DUBOIS. 

RONALD M. GEORGE, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE EVELLE J. YOUNGER,
ATTORNEY GENERAL, AND WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE WERE FILED BY JOHN E. HAVELOCK, ATTORNEY
GENERAL, FOR THE STATE OF ALASKA; BY WILLARD J. LASSERS AND ELMER GERTZ
FOR THE NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE UNITED STATES
ET AL.; BY LEO PFEFFER FOR THE SYNAGOGUE COUNCIL OF AMERICA AND ITS
CONSTITUENTS ET AL.; BY PAUL RAYMOND STONE FOR THE WEST VIRGINIA
COUNSEL OF CHURCHES ET AL.; BY DONALD M. WESSLING FOR THE COMMITTEE OF
PSYCHIATRISTS FOR EVALUATION OF THE DEATH PENALTY; BY GERALD H.
GOTTLIEB, MELVIN L. WULF, AND SANFORD JAY ROSEN FOR THE AMERICAN CIVIL
LIBERTIES UNION; BY CHAUNCEY ESKRIDGE, MARIO G. OBLEDO, LEROY D. CLARK;
NATHANIEL R. JONES, AND VERNON JORDAN FOR THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE ET AL.; BY MARSHALL J. HARTMAN FOR
THE NATIONAL LEGAL AID AND DEFENDER ASSOCIATION; BY MICHAEL V. DISALLE
FOR EDMUND G. BROWN ET AL.; BY HILBERT P. ZARKY FOR JAMES V. BENNETT ET
AL.; AND BY LUKE MCKISSACK, PRO SE.
..END :
















OPERATING ENGINEERS V. FLAIR BUILDERS, INC., 406 U.S. 487 


       INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150,

           AFL-CIO V. FLAIR BUILDERS, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

         SEVENTH CIRCUIT

        NO. 71-41.  ARGUED APRIL 10, 1972-- DECIDED MAY 30, 1972 


PETITIONER UNION BROUGHT AN ACTION IN JUNE 1968 SEEKING DAMAGES AND
INJUNCTIVE RELIEF FOR RESPONDENT'S ALLEGED BREACH OF THEIR COLLECTIVE
BARGAINING AGREEMENT, CHARGING THAT RESPONDENT HAD "CONTINUALLY
VIOLATED" THE CONTRACT SINCE JUNE 1966 BY REFUSING TO ABIDE BY ANY OF
ITS TERMS.  THE AGREEMENT PROVIDED FOR ARBITRATION "OF ANY DIFFERENCE .
. . WHICH CANNOT BE SETTLED . . . WITHIN 48 HOURS OF THE OCCURRENCE." 
THE DISTRICT COURT HELD THAT RESPONDENT "WAS BOUND BY THE MEMORANDUM
AGREEMENT TO ARBITRATE LABOR DISPUTES WITHIN THE LIMITS OF THE
ARBITRATION CLAUSE," BUT FOUND THE UNION GUILTY OF LACHES AND DISMISSED
THE ACTION.  THE COURT OF APPEALS AFFIRMED.  HELD:  AS THE DISTRICT
COURT FOUND, THE PARTIES DID AGREE TO ARBITRATE AND, THE EXISTENCE AND
SCOPE OF AN ARBITRATION CLAUSE BEING MATTERS FOR JUDICIAL DECISION, THE
PHRASE "ANY DIFFERENCE" ENCOMPASSES THE ISSUE OF LACHES WITHIN THE
BROAD SWEEP OF ITS ARBITRATION COVERAGE.  PP. 490-492. 

440 F.2D 557, REVERSED. 

BRENNAN, JR., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, MARSHALL, BLACKMUN, AND REHNQUIST, JJ., JOINED. 
POWELL, J., FILED A DISSENTING OPINION, IN WHICH BURGER, C. J., JOINED,
POST, P. 492. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN NOVEMBER 1968, PETITIONER BROUGHT AN ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, SEEKING DAMAGES
AND INJUNCTIVE RELIEF FOR AN ALLEGED BREACH BY RESPONDENT OF THEIR
COLLECTIVE-BARGAINING AGREEMENT.  THE COMPLAINT CHARGED THAT SINCE JUNE
1, 1966, RESPONDENT HAD "CONTINUALLY VIOLATED" THE CONTRACT BY REFUSING
TO ABIDE BY ANY OF ITS TERMS, INCLUDING WAGE, HIRING HALL, AND FRINGE
BENEFIT PROVISIONS.  THE AGREEMENT, WHICH INCORPORATED THE TERMS OF
MASTER CONTRACTS BETWEEN PETITIONER AND A LOCAL CONTRACTORS'
ASSOCIATION, PROVIDED FOR ARBITRATION OF "ANY DIFFERENCE . . . BETWEEN
THE PARTIES HERETO WHICH CANNOT BE SETTLED BY THEIR REPRESENTATIVES,
WITHIN 48 HOURS OF THE OCCURRENCE." 

THE DISTRICT COURT DISMISSED PETITIONER'S ACTION FOR FAILURE TO
STATE A CLAIM AND NOTED, BUT DID NOT PASS UPON, TWO ADDITIONAL
CONTENTIONS OF THE COMPANY-- "THAT (1) NO CONTRACT WAS EVER CREATED,
AND (2) . . . IF CONSUMMATED, THE AGREEMENT WAS SUBSEQUENTLY ABANDONED
BY THE UNION."  NO. 68-C-2091 (APRIL 14, 1969) (UNREPORTED).  THE COURT
SUGGESTED THAT THE PARTIES ARBITRATE THE BINDING EFFECT OF THEIR
CONTRACT.  WHEN THE COMPANY REFUSED TO ARBITRATE EITHER THAT ISSUE OR
"THE SUBSEQUENT ISSUES OF POSSIBLE VIOLATIONS," PETITIONER FILED AN
AMENDED COMPLAINT TO COMPEL ARBITRATION. 

IN MOVING TO DISMISS THE AMENDED COMPLAINT, RESPONDENT AGAIN DENIED
THE EXISTENCE OF A BINDING AGREEMENT AND ARGUED THAT THE UNION'S DELAY
IN SEEKING ARBITRATION CONSTITUTED LACHES BARRING ENFORCEMENT OF THE
CONTRACT.  THE DISTRICT COURT INITIALLY DENIED THE MOTION, HOLDING THAT
"IF THE EMPLOYER CONSENTED TO THE ALLEGED COLLECTIVE BARGAINING
AGREEMENT, THE LACHES ISSUE SHOULD BE DECIDED BY THE ARBITRATOR RATHER
THAN THE FEDERAL COURTS."  ID. (AUG. 26, 1969) (UNREPORTED).  BUT AFTER
CONDUCTING AN EVIDENTIARY HEARING ON THE SCOPE OF THE ARBITRATION
CLAUSE, THE COURT ENTERED AN ORDER DISMISSING THE COMPLAINT.  ID. (DEC.
4, 1969) (UNREPORTED).  THOUGH AGREEING THAT RESPONDENT "WAS BOUND BY
THE MEMORANDUM AGREEMENT TO ARBITRATE LABOR DISPUTES WITHIN THE LIMITS
OF THE ARBITRATION CLAUSE," THE COURT FOUND THAT THERE HAD BEEN NO
CONTACT BETWEEN THE PARTIES FROM THE TIME OF THE SIGNING IN 1964 UNTIL
THE SUMMER OF 1968.  IT THEREFORE CONCLUDED THAT THE UNION WAS GUILTY
OF LACHES IN SEEKING ENFORCEMENT: 

    "THE MASTER AGREEMENT CONTEMPLATES INITIATION OF ARBITRATION

  PROCEEDINGS IF ANY DISPUTE IS NOT SETTLED WITHIN 48 HOURS OF ITS

  OCCURRENCE, AND FURTHER PROVIDES THAT THE BOARD OF ARBITRATORS

  SHALL MEET 'WITHIN SIX (6) DAYS.'  YET DEMAND FOR ARBITRATION WAS

  NOT MADE IN THIS CASE UNTIL APRIL, 1969, ALMOST FIVE YEARS FROM

  FLAIR'S FIRST ALLEGED FAILURE TO COMPLY WITH THE CONTRACT AND

  NEARLY THREE YEARS FROM THE INCEPTION OF THE ALLEGED BREACH

  SOUGHT TO BE ARBITRATED. 

        .          .          .   . 

     "TO REQUIRE FLAIR TO RESPOND, THROUGH ARBITRATION, TO GENERAL

  CHARGES OF NONCOMPLIANCE WITH CONTRACT PROVISIONS ALLEGEDLY

  BEGINNING MORE THAN TWO YEARS BEFORE THIS SUIT WAS FILED WOULD

  IMPOSE AN EXTREME BURDEN ON ITS DEFENSE EFFORTS . . . . (TO

  COMPEL ARBITRATION WOULD REWARD PLAINTIFF FOR ITS OWN INACTION

  AND SUBJECT DEFENDANT TO THE RISK OF LIABILITY BECAUSE OF ACTIONS

  TAKEN OR NOT TAKEN IN RELIANCE ON PLAINTIFF'S APPARENT

  ABANDONMENT." 

THE COURT OF APPEALS AFFIRMED THE ORDER BY DIVIDED VOTE.  440 F.2D
557 (1971).  ITS OPINION READ THE MEMORANDUM OF THE DISTRICT COURT TO
HOLD THAT THE COLLECTIVE-BARGAINING AGREEMENT WAS STILL IN EFFECT AND
THAT THEREFORE THE QUESTION FOR DECISION WAS "WHETHER A COURT MAY
PROPERLY DISMISS THE COMPLAINT ON THE BASIS OF LACHES RESULTING FROM
DILATORY NOTIFICATION OF THE EXISTENCE OF A DISPUTE IN A SUIT BROUGHT
TO COMPEL ARBITRATION WITH REGARD TO THE DISPUTE."  ID., AT 557-558. 
THE COURT THEN ADDRESSED THIS COURT'S DECISION IN JOHN WILEY & SONS V.
LIVINGSTON, 376 U.S. 543 (1964).  THERE AN EMPLOYER REFUSED TO
ARBITRATE ON THE GROUND THAT THE UNION, AMONG OTHER THINGS, HAD FAILED
TO FOLLOW GRIEVANCE PROCEDURES REQUIRED BY THE COLLECTIVE-BARGAINING
AGREEMENT.  WE ORDERED ARBITRATION, HOLDING THAT "(ONCE IT IS
DETERMINED . . . THAT THE PARTIES ARE OBLIGATED TO SUBMIT THE SUBJECT
MATTER OF A DISPUTE TO ARBITRATION, 'PROCEDURAL' QUESTIONS WHICH GROW
OUT OF THE DISPUTE AND BEAR ON ITS FINAL DISPOSITION SHOULD BE LEFT TO
THE ARBITRATOR."  ID., AT 557.  THE COURT OF APPEALS DISTINGUISHED
WILEY ON THE GROUND THAT THE PROCEDURAL QUESTION THERE CONCERNED
"INTRINSIC" UNTIMELINESS, RELATING SOLELY TO THE REQUIREMENTS OF THE
CONTRACT.  HERE, ON THE OTHER HAND, THE QUESTION WAS ONE OF "EXTRINSIC"
UNTIMELINESS, BASED NOT ON A VIOLATION OF CONTRACT PROCEDURES BUT ON
THE FAILURE TO GIVE TIMELY NOTICE UNDER THE EQUITABLE DOCTRINE OF
LACHES.  THEREFORE, ACCORDING TO THE COURT, THE MATTER WAS WITHIN ITS
PROVINCE TO DECIDE, FOR "'WE ARE NOT INDULGING IN THE JUDICIALLY
UNWARRANTED TASK OF INTERPRETING THE COLLECTIVE BARGAINING
AGREEMENT.'"  440 F.2D, AT 560, QUOTING AMALGAMATED CLOTHING WORKERS V.
IRONALL FACTORIES CO., 386 F.2D 586, 591 (CA6 1967).  WE GRANTED
CERTIORARI.  404 U.S. 982 (1971). 

PETITIONER CONTENDS THAT THE COURT OF APPEALS ERRED IN LIMITING
WILEY TO CASES OF "INTRINSIC" DELAY BECAUSE THE ISSUE OF DELAY, WHETHER
"INTRINSIC" OR NOT, "NECESSARILY INVOLVES A DETERMINATION OF THE MERITS
OF THE DISPUTE AND BEARS DIRECTLY UPON THE OUTCOME AND IS ACCORDINGLY
FOR AN ARBITRATOR AND NOT THE FEDERAL COURT TO DECIDE."  BRIEF FOR
PETITIONER 21.  IN OTHER WORDS, PETITIONER ARGUES THAT EVEN IF THE
PARTIES HAVE NOT AGREED TO ARBITRATE THE LACHES ISSUE, WILEY REQUIRES
THAT THE ARBITRATOR RESOLVE THE QUESTION AS AN INTEGRAL PART OF THE
UNDERLYING CONTRACT DISPUTE. 

WE NEED NOT REACH THE QUESTION POSED BY PETITIONER, FOR WE FIND THAT
THE PARTIES DID IN FACT AGREE TO ARBITRATE THE ISSUE OF LACHES HERE. 
ALTHOUGH RESPONDENT DENIES THAT IT EVER SIGNED A BINDING CONTRACT WITH
PETITIONER, THE DISTRICT COURT FOUND TO THE CONTRARY AND HELD THAT THE
COMPANY "WAS BOUND BY THE MEMORANDUM AGREEMENT TO ARBITRATE LABOR
DISPUTES WITHIN THE LIMITS OF THE ARBITRATION CLAUSE."  THAT CLAUSE
APPLIES TO "ANY DIFFERENCE," WHATEVER IT MAY BE, NOT SETTLED BY THE
PARTIES WITHIN 48 HOURS OF OCCURRENCE.  THERE IS NOTHING TO LIMIT THE
SWEEP OF THIS LANGUAGE OR TO EXCEPT ANY DISPUTE OR CLASS OF DISPUTES
FROM ARBITRATION.  IN THAT CIRCUMSTANCE, WE MUST CONCLUDE THAT THE
PARTIES MEANT WHAT THEY SAID-- THAT "ANY DIFFERENCE," WHICH WOULD
INCLUDE THE ISSUE OF LACHES RAISED BY RESPONDENT AT TRIAL, SHOULD BE
REFERRED TO THE ARBITRATOR FOR DECISION.  /1/  THE DISTRICT COURT
IGNORED THE PLAIN MEANING OF THE CLAUSE IN DECIDING THAT ISSUE. 

OF COURSE, NOTHING WE SAY HERE DIMINISHES THE RESPONSIBILITY OF A
COURT TO DETERMINE WHETHER A UNION AND EMPLOYER HAVE AGREED TO
ARBITRATION.  THAT ISSUE, AS WELL AS THE SCOPE OF THE ARBITRATION
CLAUSE, REMAINS A MATTER FOR JUDICIAL DECISION.  SEE ATKINSON V.
SINCLAIR REFINING CO., 370 U.S. 238, 241 (1962).  BUT ONCE A COURT
FINDS THAT, AS HERE, THE PARTIES ARE SUBJECT TO AN AGREEMENT TO
ARBITRATE, AND THAT AGREEMENT EXTENDS TO "ANY DIFFERENCE" BETWEEN THEM,
THEN A CLAIM THAT PARTICULAR GRIEVANCES ARE BARRED BY LACHES IS AN
ARBITRABLE QUESTION UNDER THE AGREEMENT.  COMPARE IOWA BEEF PACKERS,
INC. V. THOMPSON, 405 U.S. 228 (1972).  HAVING AGREED TO THE BROAD
CLAUSE, THE COMPANY IS OBLIGED TO SUBMIT ITS LACHES DEFENSE, EVEN IF
"EXTRINSIC," TO THE ARBITRAL PROCESS.  THE JUDGMENT OF THE COURT OF
APPEALS IS

              REVERSED. 

/1/  RESPONDENT'S ATTORNEY ADMITTED AS MUCH IN THE HEARING BEFORE
THE DISTRICT COURT.  THOUGH CONTENDING THAT THE BINDING EFFECT OF THE
CONTRACT WAS AN ISSUE FOR THE COURT, AND NOT THE ARBITRATOR, HE AGREED
THAT "LACHES IS ANOTHER THING.  I CAN GO ALONG ON THIS BEING AN
ARBITRABLE QUESTION, I SUPPOSE, IF YOU HAVE GOT A CONTRACT . . . . "
APP. 93. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THROUGH THE EXERCISE OF FORMAL LOGIC THE MAJORITY REACHES A RESULT
THAT I BELIEVE IS UNJUST.  A FULL STATEMENT OF THE FACTS IS NECESSARY
TO PUT THIS CASE IN PROPER PERSPECTIVE.  FLAIR BUILDERS, INC. (FLAIR),
IS A SMALL INDEPENDENT CONSTRUCTION FIRM.  THE INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 150, AFL-CIO (THE UNION), HAD A MASTER
COLLECTIVE-BARGAINING AGREEMENT IN EFFECT WITH MANY CONTRACTOR
ASSOCIATIONS IN FLAIR'S AREA.  ON MAY 12, 1964, THE UNION AND FLAIR
SIGNED A MEMORANDUM AGREEMENT WHICH ADOPTED THE TERMS OF THE THEN
EXISTING MASTER BARGAINING AGREEMENT.  THE MEMORANDUM PROVIDED THAT
FLAIR WOULD BE BOUND BY ANY FUTURE MASTER AGREEMENT ENTERED BETWEEN THE
UNION AND THE CONTRACTOR ASSOCIATIONS.  FLAIR HAD ONLY ONE EMPLOYEE AT
THE TIME IT SIGNED THE MEMORANDUM AGREEMENT WITH THE UNION.  THIS
EMPLOYEE JOINED THE UNION, BUT LEFT FLAIR'S EMPLOYMENT ABOUT TWO WEEKS
LATER.  HIS JOB WAS FILLED SUCCESSIVELY BY EMPLOYEES WHO OPERATED THE
ONLY PIECE OF EQUIPMENT OWNED BY FLAIR.  NONE OF THESE SUCCESSOR
EMPLOYEES BELONGED TO THE UNION. 

IN THE ENSUING YEARS, FLAIR PROSPERED AND ADDED A MODEST AMOUNT OF
ADDITIONAL EQUIPMENT.  BY 1967 IT OWNED FOUR PIECES.  THROUGHOUT THE
PERIOD FROM MAY 1964 UNTIL THE SUMMER OF 1968, FLAIR OPERATED ALL OF
ITS EQUIPMENT WITH NONUNION EMPLOYEES.  DURING THIS PERIOD OF MORE THAN
FOUR YEARS, FLAIR HEARD NOTHING WHATEVER FROM THE UNION. 

IN 1966, WITHOUT FLAIR'S KNOWLEDGE, THE UNION AND THE CONTRACTOR
ASSOCIATIONS ENTERED INTO A NEW MASTER AGREEMENT WHICH CONTAINED A
PROVISION THAT:  "SHOULD ANY DIFFERENCE ARISE BETWEEN THE PARTIES
HERETO WHICH CANNOT BE SETTLED BY THEIR REPRESENTATIVES, WITHIN 48
HOURS OF THE OCCURRENCE, SUCH DIFFERENCE SHALL BE SUBMITTED TO
ARBITRATION."  IT FURTHER PROVIDED THAT THE ARBITRATORS SHOULD MEET
WITHIN SIX DAYS AFTER IT WAS DETERMINED THAT THE DISPUTE COULD NOT BE
SETTLED.  ALTHOUGH FLAIR WAS NOT A PARTY TO THE NEW 1966 MASTER
AGREEMENT, AND RECEIVED NO NOTICE OF ITS EXECUTION FROM THE UNION, THE
DISTRICT COURT DETERMINED THAT FLAIR WAS "BOUND" BY VIRTUE OF THE
INCORPORATION PROVISION IN THE MEMORANDUM AGREEMENT SIGNED IN 1964. 

IT IS APPARENT THAT THE UNION EITHER FORGOT ABOUT ITS 1964 AGREEMENT
WITH FLAIR OR CONSIDERED FLAIR'S SMALL OPERATION TO BE OF NO
CONSEQUENCE.  FOR A LONG TIME EVERYONE SEEMED HAPPY, AND THINGS WENT
WELL.  THEN IN JUNE 1968, FOUR YEARS AFTER THE AGREEMENT WAS ENTERED, A
UNION BUSINESS AGENT VISITED FLAIR.  THIS WAS THE FIRST SUCH VISIT
SINCE MAY 1964.  THE BUSINESS AGENT FOUND THAT FLAIR'S FOUR EMPLOYEES
WERE NONUNION, AND HE ALSO COMPLAINED ABOUT THEIR WAGES.  FLAIR REFUSED
TO RECOGNIZE ANY OBLIGATION TO THE UNION. 

AFTER THE LAPSE OF ANOTHER FIVE MONTHS, ON NOVEMBER 7, 1968, THE
UNION FILED A COMPLAINT AGAINST FLAIR IN THE DISTRICT COURT SEEKING
SPECIFIC PERFORMANCE OF THE ALLEGED COLLECTIVE-BARGAINING AGREEMENT AND
MONETARY DAMAGES IN THE AMOUNT OF $100,000.  FLAIR'S MOTION TO DISMISS
FOR FAILURE TO STATE A CAUSE OF ACTION WAS SUSTAINED BY THE DISTRICT
COURT ON APRIL 14, 1969, IN A MEMORANDUM OPINION WHICH SUGGESTED THAT
THE PARTIES ARBITRATE THEIR DIFFERENCES.  PURSUANT TO LEAVE OF COURT,
THE UNION FILED AN AMENDED COMPLAINT ON JUNE 3, 1969, ALLEGING THAT ON
APRIL 18, 1969, THE UNION HAD DEMANDED "IMMEDIATE ARBITRATION" AND THAT
FLAIR HAD REFUSED.  IN ITS ANSWER TO THE AMENDED COMPLAINT, FLAIR
ASSERTED VARIOUS DEFENSES, INCLUDING ABANDONMENT OF THE CONTRACT AND
LACHES IN ASSERTING "ANY PURPORTED RIGHTS OR CLAIMS THEREUNDER." 

AFTER AN EVIDENTIARY HEARING, THE DISTRICT COURT CONCLUDED THAT THE
UNION HAD BEEN "GUILTY OF LACHES BY ITS UNJUSTIFIED DELAY IN THE
ENFORCEMENT OF ITS CONTRACT WITH DEFENDANT," AND DISMISSED THE
COMPLAINT.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT, WITH ONE
JUDGE DISSENTING, AGREED THAT LACHES WAS A BAR TO THE UNION'S BELATED
ASSERTION OF THE RIGHT TO ARBITRATE, AND AFFIRMED THE JUDGMENT OF THE
DISTRICT COURT. 

IN ITS OPINION TODAY, THE COURT LOOKS SOLELY AT THE CLAUSE IN THE
MASTER COLLECTIVE-BARGAINING AGREEMENT WHICH PROVIDED FOR ARBITRATION
OF "ANY DIFFERENCE" BETWEEN THE PARTIES, AND HOLDS: 

"(THAT THE PARTIES MEANT WHAT THEY SAID-- THAT 'ANY DIFFERENCE,'
WHICH WOULD INCLUDE THE ISSUE OF LACHES RAISED BY RESPONDENT AT TRIAL,
SHOULD BE REFERRED TO THE ARBITRATOR FOR DECISION."  /1/ YET THE PHRASE
"ANY DIFFERENCE," IF GIVEN ITS NORMAL MEANING IN A LABOR CONTRACT,
REFERS TO DISPUTES RELATING TO HOURS, WAGES, FRINGE BENEFITS,
SENIORITY, GRIEVANCES, AND TO OTHER ISSUES CUSTOMARILY ARISING WITHIN
THE TERMS OF A COLLECTIVE-BARGAINING AGREEMENT.  I CANNOT BELIEVE THAT
THIS LANGUAGE WAS INTENDED TO INCLUDE THE ARBITRATION OF AN EQUITABLE
DEFENSE ASSERTED AGAINST THE ENFORCEABILITY OF THE ENTIRE CONTRACT. 
INDEED, THE UNION ITSELF DID NOT CONSTRUE THE LANGUAGE TO COVER
ARBITRATION OF THIS ISSUE, AS IT ASSERTED NO SUCH CLAIM UNTIL AFTER THE
DISTRICT COURT SUGGESTED IT.  /2/ 

BUT MY DISSENT DOES NOT TURN SOLELY ON AN INTERPRETATION OF THE
ARBITRATION CLAUSE OR OF ANY OTHER PROVISION OF THE AGREEMENT.  THE
DEFENSE OF LACHES IS EQUITABLE IN NATURE.  THE CUSTOMARY SITUATION IN
WHICH IT IS INVOKED IS WHERE A CONTRACT DOES EXIST AND, BUT FOR LACHES
OF ONE OF THE PARTIES, WOULD BE ENFORCEABLE.  IN THIS CASE, FLAIR
RELIED IN SUBSTANCE ON TWO DEFENSES:  (I) THAT THE 1964 MEMORANDUM
AGREEMENT (THE ONLY AGREEMENT FLAIR EVER SIGNED) HAS BEEN ABANDONED BY
THE UNION; AND (II) THAT EVEN IF IT HAD NOT BEEN ABANDONED AND THE
ARBITRATION CLAUSE WAS AS BROAD AS THIS COURT CONSTRUES IT TO BE, THE
DEFENSE OF LACHES WAS AVAILABLE AS AN AFFIRMATIVE DEFENSE.  THE ESSENCE
OF THE LATTER DEFENSE IS THAT THE UNION, BY VIRTUE OF ITS CONDUCT AND
FLAIR'S RELIANCE THEREON, WAS ESTOPPED AND PRECLUDED FROM ENFORCING ANY
AND ALL PROVISIONS OF THE CONTRACT, INCLUDING THE ARBITRATION CLAUSE. 
THIS POSITION WAS SUSTAINED BY THE COURTS BELOW.  THE COURT OF APPEALS
CORRECTLY HELD: 

     "THE FACTUAL CONTEXT OF THIS APPEAL THUS NARROWS THE ISSUE

  BEFORE US TO THE QUESTION OF WHETHER A PARTY TO A COLLECTIVE

  BARGAINING AGREEMENT WHICH CONTAINS AN ARBITRATION CLAUSE MAY BE

 SO DILATORY IN MAKING THE EXISTENCE OF VAGUELY DELINEATED

  DISPUTES KNOWN TO THE OTHER PARTY THAT A COURT IS JUSTIFIED IN

  REFUSING TO COMPEL THE SUBMISSION OF SUCH DISPUTES TO

  ARBITRATION."  440 F.2D 557, 559 (1971). 

THE DISTRICT COURT, WHICH HEARD THE TESTIMONY OF THE PARTIES,
EMPHASIZED THE BURDEN IMPOSED UPON FLAIR BY THE UNION'S PROLONGED AND
UNEXPLAINED DELAY AND THE AMBIGUITY OF ITS VARIOUS POSITIONS: 

     "TO REQUIRE FLAIR TO RESPOND, THROUGH ARBITRATION, TO GENERAL

  CHARGES OF NONCOMPLIANCE WITH CONTRACT PROVISIONS ALLEGEDLY

  BEGINNING MORE THAN TWO YEARS BEFORE THIS SUIT WAS FILED WOULD

  IMPOSE AN EXTREME BURDEN ON ITS DEFENSE EFFORTS.  ESPECIALLY IS

  THIS SO WHEN, AS DEMONSTRATED AT THE HEARING, FLAIR

  UNDERSTANDABLY CONSIDERED THE CONTRACT TO HAVE BEEN ABANDONED

  SOON AFTER ITS INCEPTION.  PLAINTIFF HAS OFFERED NO EXPLANATION

  FOR ITS DELAY IN ENFORCEMENT; YET TO COMPEL ARBITRATION WOULD

  REWARD PLAINTIFF FOR ITS OWN INACTION AND SUBJECT DEFENDANT TO

  THE RISK OF LIABILITY BECAUSE OF ACTIONS TAKEN OR NOT TAKEN IN

RELIANCE ON PLAINTIFF'S APPARENT ABANDONMENT." 

I AM AWARE OF THE STRONG POLICY CONSIDERATIONS IN FAVOR OF THE
ARBITRATION OF UNION-MANAGEMENT DISPUTES.  JOHN WILEY & SONS V.
LIVINGSTON, 376 U.S. 543 (1964).  BUT NEITHER WILEY, NOR ANY OTHER CASE
TO MY KNOWLEDGE, HAS FORCED ARBITRATION UPON A PARTY IN CIRCUMSTANCES
SUCH AS THESE, WHERE THE EQUITABLE DOCTRINE OF LACHES WAS CLEARLY
APPLICABLE AND WAS ASSERTED.  WE WOULD BE WELL ADVISED TO RECALL CHIEF
JUSTICE MARSHALL'S ADMONITION: 

"(IT IS DESIRABLE TO TERMINATE EVERY CAUSE UPON ITS REAL MERITS, IF
THOSE MERITS ARE FAIRLY BEFORE THE COURT, AND TO PUT AN END TO
LITIGATION WHERE IT IS IN THE POWER OF THE COURT TO DO SO."  CHURCH V.
HUBBART, 2 CRANCH 187, 232 (1804). 

THE EFFECT OF TODAY'S DECISION ON FLAIR SEEMS FAIRLY CLEAR.  THE
COURT'S OPINION IMPOSES ON THIS SMALL BUSINESS THE "EXTREME BURDEN"
THAT THE DISTRICT COURT FOUND WOULD RESULT FROM REQUIRING ARBITRATION. 
MR. JUSTICE CARDOZO ONCE OBSERVED THAT LITIGATION IS A RARE AND
CATASTROPHIC EXPERIENCE FOR THE VAST MAJORITY OF MEN.  /3/  IF FLAIR
SURVIVES THE LONG EXCURSION TO THIS COURT, THE ARBITRATION THAT THE
MAJORITY REQUIRES, AND A POSSIBLE RETURN TO THE DISTRICT COURT WHICH
ALREADY HAS RULED IN ITS FAVOR, IT SURELY POSSESSES MORE TENACITY AND
BETTER FINANCIAL RESOURCES THAN THE AVERAGE SMALL BUSINESS.  ONE MAY
DOUBT WHETHER MANY SMALL BUSINESSMEN WOULD BELIEVE TODAY'S RESULT
POSSIBLE. 

THE EFFECT OF THE COURT'S DECISION ALSO COULD BE FAR REACHING IN THE
LAW OF LABOR-MANAGEMENT RELATIONS.  IT APPEARS THAT THE LONG-ACCEPTED
JURISDICTION OF THE COURTS MAY NOW BE DISPLACED WHENEVER A COLLECTIVE
BARGAINING AGREEMENT CONTAINS A GENERAL ARBITRATION CLAUSE SIMILAR TO
THAT HERE INVOLVED.  IF IN SUCH CIRCUMSTANCES THE AFFIRMATIVE DEFENSE
OF LACHES CAN NO LONGER BE INVOKED IN THE COURTS, WHAT OF OTHER
AFFIRMATIVE DEFENSES THAT GO TO THE ENFORCEABILITY OF A CONTRACT?  DOES
THE COURT'S OPINION VEST IN ARBITRATORS THE HISTORIC JURISDICTION OF
THE COURTS TO DETERMINE FRAUD OR DURESS IN THE INCEPTION OF A
CONTRACT?  IT SEEMS TO ME THAT THE COURTS ARE FAR BETTER QUALIFIED THAN
ANY ARBITRATORS TO DECIDE ISSUES OF THIS KIND.  THESE ARE NOT QUESTIONS
OF "LABOR LAW," NOR ARE THEY ISSUES OF FACT THAT ARBITRATORS ARE
PECULIARLY WELL QUALIFIED TO CONSIDER.  THEY ARE ISSUES WITHIN THE
TRADITIONAL EQUITY JURISDICTION OF COURTS OF LAW AND ISSUES WHICH THE
COURTS BELOW APPROPRIATELY RESOLVED.  I WOULD AFFIRM THE JUDGMENT OF
THE COURT OF APPEALS. 

/1/  IT SHOULD BE NOTED THAT THIS LANGUAGE WAS ADDED TO THE MASTER
CONTRACT IN 1966 WITHOUT THE KNOWLEDGE OF FLAIR, AT A TIME WHEN IT HAD
EVERY REASON TO BELIEVE THAT THE UNION-- FROM WHICH IT HAD HEARD
NOTHING FORE MORE THAN TWO YEARS-- HAD ABANDONED THE INITIAL MEMORANDUM
AGREEMENT OF MAY 12, 1964.  FLAIR HAD NO UNION EMPLOYEES, AND HAD
RECEIVED NO DEMANDS OR NOTICES OF ANY KIND FROM THE UNION.  BUT
WHATEVER THE SITUATION MAY HAVE BEEN IN 1966, THE SUBSEQUENT HISTORY OF
THIS REMARKABLE PERFORMANCE CORROBORATES THE VIEW THAT NEITHER FLAIR
NOR THE UNION WAS CONSCIOUS OF THE EXISTENCE OF A COLLECTIVE-BARGAINING
AGREEMENT OR OF A RIGHT TO ARBITRATE ANYTHING. 

EVEN AFTER A UNION BUSINESS AGENT VISITED FLAIR'S JOBSITE IN 1968
AND DISCOVERED "A NON-UNION EMPLOYEE OPERATING A PIECE OF EQUIPMENT,"
NO ACTION WAS TAKEN BY THE UNION UNTIL A SUIT FOR SPECIFIC PERFORMANCE
AND DAMAGES WAS FILED SOME FIVE MONTHS LATER.  NO DEMAND WAS MADE FOR
ARBITRATION, AND NO CLAIM OF ANY RIGHT TO ARBITRATION WAS MADE IN THE
ORIGINAL COMPLAINT.  THE DISTRICT COURT, NOT THE UNION, FIRST SUGGESTED
THE POSSIBILITY OF ARBITRATION.  IN THESE CIRCUMSTANCES, AND WITH ALL
RESPECT, I FIND NO SUPPORT WHATEVER IN THE RECORD FOR THE COURT'S
HOLDING "THAT THE PARTIES DID IN FACT AGREE TO ARBITRATE." 

/2/  SEE N. 1, SUPRA. 

/3/  B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 128 (1921). 

BERNARD M. BAUM ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE DANIEL S. SHULMAN AND ROBERT H. BAUM. 

J. ROBERT MURPHY, BY INVITATION OF THE COURT, 405 U.S. 972, ARGUED
THE CAUSE AND FILED A BRIEF AS AMICUS CURIAE IN SUPPORT OF THE JUDGMENT
BELOW. 
..END :





LAKE CARRIERS' ASSN. V. MACMULLAN, 406 U.S. 498 


       LAKE CARRIERS' ASSN. ET AL V. MACMULLAN ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF MICHIGAN

        NO. 71-422.  ARGUED MARCH 22-23, 1972-- DECIDED MAY 30,

1972 


MICHIGAN'S WATERCRAFT POLLUTION CONTROL ACT OF 1970, APPELLEES
MAINTAIN, PROHIBITS THE DISCHARGE OF SEWAGE, WHETHER TREATED OR
UNTREATED, IN MICHIGAN WATERS AND REQUIRES VESSELS WITH MARINE TOILETS
TO HAVE SEWAGE STORAGE DEVICES.  APPELLANTS, THE LAKE CARRIERS'
ASSOCIATION AND MEMBERS OWNING OR OPERATING GREAT LAKES BULK CARGO
VESSELS, FILED A COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
CONTENDING THAT THE ACT UNDULY BURDENS INTERSTATE AND FOREIGN COMMERCE
CONTRAVENES UNIFORM MARITIME LAW; VIOLATES DUE PROCESS AND EQUAL
PROTECTION REQUIREMENTS; AND IS INVALID UNDER THE SUPREMACY CLAUSE
PRIMARILY BECAUSE OF CONFLICT WITH OR PRE-EMPTION BY THE FEDERAL WATER
POLLUTION CONTROL ACT, AS AMENDED BY THE WATER QUALITY IMPROVEMENT ACT
OF 1970.  THAT LAW APPEARS TO CONTEMPLATE SEWAGE CONTROL AFTER
APPROPRIATE FEDERAL STANDARDS HAVE BEEN ISSUED THROUGH ON-BOARD
TREATMENT BEFORE DISPOSAL IN NAVIGABLE WATERS, UNLESS THE ADMINISTRATOR
OF THE ENVIRONMENTAL PROTECTION AGENCY PROVIDES ON SPECIAL APPLICATION
FOR A COMPLETE PROHIBITION ON DISCHARGE IN DESIGNATED AREAS.  A THREE
JUDGE DISTRICT COURT DISMISSED THE COMPLAINT FOR LACK OF A JUSTICIABLE
CONTROVERSY.  THE COURT ALSO FOUND "COMPELLING REASONS TO ABSTAIN FROM
CONSIDERATION OF THE MATTER IN ITS PRESENT POSTURE"-- THE ATTITUDE OF
THE MICHIGAN AUTHORITIES, WHO ARE NOT THREATENING CRIMINAL PROSECUTION
BUT ARE SEEKING INDUSTRY COOPERATION; THE AVAILABILITY OF DECLARATORY
RELIEF IN THE MICHIGAN COURTS; THE POSSIBILITY OF A COMPLETE
PROHIBITION ON THE DISCHARGE OF SEWAGE IN MICHIGAN'S NAVIGABLE WATERS
UNDER FEDERAL LAW; THE ABSENCE OF EXISTING CONFLICT BETWEEN THE
MICHIGAN REQUIREMENTS AND OTHER STATE LAWS; AND THE PUBLICATION OF
PROPOSED FEDERAL STANDARDS THAT MICHIGAN MIGHT CONSIDER IN INTERPRETING
AND ENFORCING ITS LAW.  HELD: 

1.  THE COMPLAINT PRESENTS AN "ACTUAL CONTROVERSY" WITHIN THE
MEANING OF THE DECLARATORY JUDGMENT ACT BECAUSE THE OBLIGATION TO
INSTALL SEWAGE STORAGE DEVICES UNDER THE MICHIGAN STATUTE IS PRESENTLY
EFFECTIVE IN FACT.  PP. 506-508. 

2.  ABSTENTION IS PERMISSIBLE "ONLY IN NARROWLY LIMITED 'SPECIAL
CIRCUMSTANCES,'" ZWICKLER V. KOOTA, 389 U.S. 241, 248 (1967),
JUSTIFYING "THE DELAY AND EXPENSE TO WHICH APPLICATION OF THE
ABSTENTION DOCTRINE INEVITABLY GIVES RISE."  ENGLAND V. MEDICAL
EXAMINERS, 375 U.S. 411, 418 (1964).  THOSE CIRCUMSTANCES DO NOT
INCLUDE THE MAJORITY OF GROUNDS GIVEN BY THE DISTRICT COURT.  PP. 509
510. 

(A) THE ABSENCE OF AN IMMEDIATE THREAT OF PROSECUTION IS NOT A
REASON FOR ABSTENTION.  IN THE ABSENCE OF A PENDING STATE PROCEEDING,
EXERCISE OF FEDERAL COURT JURISDICTION ORDINARILY IS APPROPRIATE IF THE
CONDITIONS FOR DECLARATORY OR INJUNCTIVE RELIEF ARE MET.  YOUNGER V.
HARRIS, 401 U.S. 37 (1971), AND SAMUELS V. MACKELL, 401 U.S. 66 (1971),
DISTINGUISHED.  PP. 509-510. 

(B) THE AVAILABILITY OF DECLARATORY RELIEF IN STATE COURTS ON
FEDERAL CLAIMS IS NOT A REASON FOR ABSTENTION.  ZWICKLER V. KOOTA,
SUPRA, AT 248.  P. 510. 

(C) JUST AS THE POSSIBILITY OF A COMPLETE PROHIBITION ON THE
DISCHARGE OF SEWAGE IN MICHIGAN'S NAVIGABLE WATERS UNDER FEDERAL LAW
AND THE ASSERTED ABSENCE OF EXISTING CONFLICT BETWEEN THE MICHIGAN
REQUIREMENTS AND OTHER STATE LAWS DO NOT DIMINISH THE IMMEDIACY AND
REALITY OF APPELLANTS' GRIEVANCE, THEY DO NOT CALL FOR ABSTENTION.  P.
510. 

3.  THE MICHIGAN STATUTE, HOWEVER, IS UNCLEAR IN PARTICULARS THAT GO
TO THE FOUNDATION OF APPELLANTS' GRIEVANCE AND HAS NOT YET BEEN
CONSTRUED BY ANY MICHIGAN COURT.  IN THIS CIRCUMSTANCE ABSTENTION WAS
APPROPRIATE BECAUSE AUTHORITATIVE RESOLUTION OF THOSE AMBIGUITIES IN
THE STATE COURTS IS SUFFICIENTLY LIKELY TO "AVOID OR MODIFY THE
(FEDERAL) CONSTITUTIONAL (QUESTIONS)," ZWICKLER V. KOOTA, SUPRA, AT
249, APPELLANTS RAISE TO WARRANT ABSTENTION, PARTICULARLY IN VIEW OF
THE ABSENCE OF COUNTERVAILING CONSIDERATIONS FOUND COMPELLING IN PRIOR
DECISIONS.  PP. 510-513. 

336 F.SUPP.  248, VACATED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED A
STATEMENT CONCURRING IN THE RESULT, IN WHICH REHNQUIST, J., JOINED,
POST, P. 513.  POWELL, J., FILED A DISSENTING OPINION, IN WHICH BURGER,
C. J., JOINED, POST, P. 513. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT,
CONVENED UNDER 28 U.S.C. 2281, 2284, DISMISSING A COMPLAINT TO HAVE THE
MICHIGAN WATERCRAFT POLLUTION CONTROL ACT OF 1970, MICH. COMP. LAWS
ANN. SEC. 323.331 ET SEQ. (SUPP. 1971), DECLARED INVALID AND ITS
ENFORCEMENT ENJOINED.  336 F.SUPP.  248 (1971).  WE NOTED PROBABLE
JURISDICTION, 404 U.S. 982 (1971), AND AFFIRM THE DISTRICT COURT'S
DETERMINATION TO ABSTAIN FROM DECISION PENDING STATE COURT
PROCEEDINGS. 

THE MICHIGAN STATUTE, EFFECTIVE JANUARY 1, 1971, PROVIDES IN
PERTINENT PART: 

    "SEC. 3.  (1) A PERSON (DEFINED IN SEC. 2(I) TO MEAN "AN

  INDIVIDUAL, PARTNERSHIP, FIRM, CORPORATION, ASSOCIATION OR OTHER

  ENTITY") SHALL NOT PLACE, THROW, DEPOSIT, DISCHARGE OR CAUSE TO

  BE DISCHARGED INTO OR ONTO THE WATERS OF THIS STATE, ANY . . .

  SEWAGE (DEFINED IN SEC. 2(D) TO MEAN "ALL HUMAN BODY WASTES,

  TREATED OR UNTREATED") . . . OR OTHER LIQUID OR SOLID MATERIALS

  WHICH RENDER THE WATER UNSIGHTLY, NOXIOUS OR OTHERWISE

  UNWHOLESOME SO AS TO BE DETRIMENTAL TO THE PUBLIC HEALTH OR

  WELFARE OR TO THE ENJOYMENT OF THE WATER FOR RECREATIONAL

  PURPOSES. 

     "(2) IT IS UNLAWFUL TO DISCHARGE, DUMP, THROW OR DEPOSIT . . .

  SEWAGE . . . FROM A RECREATIONAL, DOMESTIC OR FOREIGN WATERCRAFT

  USED FOR PLEASURE OR FOR THE PURPOSE OF CARRYING PASSENGERS,

  CARGO OR OTHERWISE ENGAGED IN COMMERCE ON THE WATERS OF THIS

  STATE. 

     "SEC. 4.  (1) ANY PLEASURE OR RECREATIONAL WATERCRAFT OPERATED

  ON THE WATERS OF THIS STATE WHICH IS MOORED OR REGISTERED IN

ANOTHER STATE OR JURISDICTION, IF EQUIPPED WITH A POLLUTION

  CONTROL DEVICE APPROVED BY THAT JURISDICTION, MAY BE APPROVED BY

  THE (STATE WATER RESOURCES COMMISSION OF THE DEPARTMENT OF

  NATURAL RESOURCES) TO OPERATE ON THE WATERS OF THIS STATE. 

     "(2) A PERSON OWNING, OPERATING OR OTHERWISE CONCERNED IN THE

  OPERATION, NAVIGATION OR MANAGEMENT OF A WATERCRAFT (DEFINED IN

  SEC. 2(G) TO INCLUDE "FOREIGN AND DOMESTIC VESSELS ENGAGED IN

  COMMERCE UPON THE WATERS OF THIS STATE" AS WELL AS "PRIVATELY

  OWNED RECREATIONAL WATERCRAFT") HAVING A MARINE TOILET SHALL NOT

  OWN, USE OR PERMIT THE USE OF SUCH TOILET ON THE WATERS OF THIS

 STATE UNLESS THE TOILET IS EQUIPPED WITH 1 OF THE FOLLOWING

  POLLUTION CONTROL DEVICES: 

     "(A) A HOLDING TANK OR SELF-CONTAINED MARINE TOILET WHICH WILL

  RETAIN ALL SEWAGE PRODUCED ON THE WATERCRAFT FOR SUBSEQUENT

  DISPOSAL AT APPROVED DOCKSIDE OR ONSHORE COLLECTION AND TREATMENT

 FACILITIES. 

     "(B) AN INCINERATING DEVICE WHICH WILL REDUCE TO ASH ALL
SEWAGE

  PRODUCED ON THE WATERCRAFT.  THE ASH SHALL BE DISPOSED OF ONSHORE

  IN A MANNER WHICH WILL PRECLUDE POLLUTION. 

        .          .          .          . 

     "SEC. 8 . . . . COMMERCIAL DOCKS AND WHARFS DESIGNED FOR

  RECEIVING AND LOADING CARGO AND/OR FREIGHT FROM COMMERCIAL

  WATERCRAFT MUST FURNISH FACILITIES, IF DETERMINED NECESSARY, AS

  PRESCRIBED BY THE COMMISSION, TO ACCOMMODATE DISCHARGE OF SEWAGE

  FROM HEADS AND GALLEYS . . . (OF) THE WATERCRAFT WHICH UTILIZE

  THE DOCKS OR WHARFS. 

     "SEC. 10.  THE COMMISSION MAY PROMULGATE ALL RULES NECESSARY
OR

  CONVENIENT FOR THE CARRYING OUT OF DUTIES AND POWERS CONFERRED BY

  THIS ACT. 

     "SEC. 11.  ANY PERSON WHO VIOLATES ANY PROVISION OF THIS ACT
IS

GUILTY OF A MISDEMEANOR AND SHALL BE FINED NOT MORE THAN

 $500.00.  TO BE ENFORCEABLE, THE PROVISION OR THE RULE SHALL BE

  OF SUCH FLEXIBILITY THAT A WATERCRAFT OWNER, IN CARRYING OUT THE

  PROVISION OR RULE, IS ABLE TO MAINTAIN MARITIME SAFETY

  REQUIREMENTS AND COMPLY WITH THE FEDERAL MARINE AND NAVIGATION

  LAWS AND REGULATIONS." 

APPELLEES-- THE STATE ATTORNEY GENERAL, THE DEPARTMENT OF NATURAL
RESOURCES AND ITS DIRECTOR, AND THE WATER RESOURCES COMMISSION AND ITS
EXECUTIVE SECRETARY-- READ THESE PROVISIONS AS PROHIBITING THE
DISCHARGE OF SEWAGE, WHETHER TREATED OR UNTREATED, IN MICHIGAN WATERS
AND AS REQUIRING VESSELS WITH MARINE TOILETS TO HAVE SEWAGE STORAGE
DEVICES. 

APPELLANTS-- THE LAKE CARRIERS' ASSOCIATION AND INDIVIDUAL MEMBERS
WHO OWN OR OPERATE FEDERALLY ENROLLED AND LICENSED GREAT LAKES BULK
CARGO VESSELS-- CHALLENGE THE MICHIGAN LAW ON A VARIETY OF GROUNDS. 
THEY URGE THAT THE MICHIGAN LAW IS BEYOND THE STATE'S POLICE POWER AND
PLACES AN UNDUE BURDEN ON INTERSTATE AND FOREIGN COMMERCE,
IMPERMISSIBLY INTERFERES WITH UNIFORM MARITIME LAW, DENIES THEM DUE
PROCESS AND EQUAL PROTECTION OF THE LAWS, AND IS UNCONSTITUTIONALLY
VAGUE.  THEY ALSO CONTEND THAT THE MICHIGAN STATUTE CONFLICTS WITH OR
IS PRE-EMPTED BY FEDERAL LAW, PRIMARILY /1/  THE FEDERAL WATER
POLLUTION CONTROL ACT, AS AMENDED BY THE WATER QUALITY IMPROVEMENT ACT
OF 1970, AND IS THEREFORE INVALID UNDER THE SUPREMACY CLAUSE.  UNDER
THE WATER QUALITY IMPROVEMENT ACT, THE ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY /2/  IS DIRECTED "(AS SOON AS POSSIBLE,
AFTER APRIL 3, 1970, . . . (TO) PROMULGATE FEDERAL STANDARDS OF
PERFORMANCE FOR MARINE SANITATION DEVICES . . . WHICH SHALL BE DESIGNED
TO PREVENT THE DISCHARGE OF UNTREATED OR INADEQUATELY TREATED SEWAGE
INTO OR UPON THE NAVIGABLE WATERS OF THE UNITED STATES FROM NEW VESSELS
AND EXISTING VESSELS, EXCEPT VESSELS NOT EQUIPPED WITH INSTALLED TOILET
FACILITIES."  84 STAT. 100, 33 U.S.C. 1163(B)(1).  /3/  THESE
STANDARDS, WHICH AS OF NOW ARE NOT ISSUED, /4/  ARE TO BECOME EFFECTIVE
FOR NEW VESSELS TWO YEARS AFTER PROMULGATION AND FOR EXISTING VESSELS
FIVE YEARS AFTER PROMULGATION.  84 STAT. 101, 33 U.S.C. 1163(C)(1). 
THEREAFTER, "NO STATE . . . SHALL ADOPT OR ENFORCE ANY STATUTE OR
REGULATION . . . WITH RESPECT TO THE DESIGN, MANUFACTURE, OR
INSTALLATION OR USE OF ANY MARINE SANITATION DEVICE ON ANY VESSEL
SUBJECT TO THE PROVISIONS OF THIS SECTION."  ID., SEC. 1163(F). 
HOWEVER, "(UPON APPLICATION BY A STATE, AND WHERE THE ADMINISTRATOR
DETERMINES THAT ANY APPLICABLE WATER QUALITY STANDARDS REQUIRE SUCH A
PROHIBITION, HE SHALL BY REGULATION COMPLETELY PROHIBIT THE DISCHARGE
FROM A VESSEL OF ANY SEWAGE (WHETHER TREATED OR NOT) INTO THOSE WATERS
OF SUCH STATE WHICH ARE THE SUBJECT OF THE APPLICATION AND TO WHICH
SUCH STANDARDS APPLY."  IBID.  THUS, THE FEDERAL LAW APPEARS TO
CONTEMPLATE SEWAGE CONTROL THROUGH ONBOARD TREATMENT BEFORE DISPOSAL IN
NAVIGABLE WATERS, UNLESS THE ADMINISTRATOR PROVIDES ON SPECIAL
APPLICATION FOR A COMPLETE PROHIBITION ON DISCHARGE IN DESIGNATED
AREAS. 

THE DISTRICT COURT BELOW DID NOT REACH THE MERITS OF APPELLANTS'
COMPLAINT ON THE GROUND THAT "THE LACK OF A JUSTICIABLE CONTROVERSY
PRECLUDES ENTRY OF THIS COURT INTO THE MATTER."  336 F.SUPP.,AT 253. 
/5/  "AN OVERVIEW OF THE FACTUAL SITUATION PRESENTED BY THE EVIDENCE IN
THIS CASE," SAID THE DISTRICT COURT, "COMPELS BUT ONE CONCLUSION:  THAT
THE PLAINTIFFS HERE ARE SEEKING AN ADVISORY OPINION . . . . "  IBID.
THE DISTRICT COURT ALSO FOUND "COMPELLING REASONS TO ABSTAIN FROM
CONSIDERATION OF THE MATTER IN ITS PRESENT POSTURE," IBID.-- NAMELY,
"THE ATTITUDE OF MICHIGAN AUTHORITIES WHO SEEK THE COOPERATION OF THE
INDUSTRY IN THE IMPLEMENTATION OF ITS PROGRAM AND HAVE NOT INSTIGATED,
NOR DOES IT APPEAR, THREATENED CRIMINAL PROSECUTIONS," ID., AT 252; /6/
THE AVAILABILITY OF DECLARATORY RELIEF IN MICHIGAN COURTS; THE
POSSIBILITY OF A COMPLETE PROHIBITION ON THE DISCHARGE OF SEWAGE IN
MICHIGAN'S NAVIGABLE WATERS UNDER FEDERAL LAW; /7/  THE ABSENCE OF
EXISTING CONFLICT BETWEEN THE MICHIGAN REQUIREMENTS AND OTHER STATE
LAWS; /8/  AND THE PUBLICATION OF PROPOSED FEDERAL STANDARDS THAT MIGHT
BE CONSIDERED BY MICHIGAN IN THE INTERPRETATION AND ENFORCEMENT OF ITS
STATUTE.  /9/ 

APPELLANTS NOW URGE THAT THEIR COMPLAINT DOES PRESENT AN "ACTUAL
CONTROVERSY" WITHIN THE MEANING OF THE DECLARATORY JUDGMENT ACT.  28
U.S.C. 2201, THAT IS RIPE FOR DECISION.  WE AGREE.  THE TEST TO BE
APPLIED, OF COURSE, IS THE FAMILIAR ONE STATED IN MARYLAND CASUALTY CO.
V. PACIFIC COAL & OIL CO., 312 U.S. 270, 273 (1941):  "BASICALLY, THE
QUESTION IN EACH CASE IS WHETHER . . . THERE IS A SUBSTANTIAL
CONTROVERSY, BETWEEN PARTIES HAVING ADVERSE LEGAL INTERESTS, OF
SUFFICIENT IMMEDIACY AND REALITY TO WARRANT THE ISSUANCE OF A
DECLARATORY JUDGMENT."  COMPARE, E.G., IBID., WITH, E.G., GOLDEN V.
ZWICKLER, 394 U.S. 103 (1969).  SINCE, AS APPELLEES CONCEDE, /10/  THE
MICHIGAN REQUIREMENTS ON THE DISCHARGE OF SEWAGE WILL BE PREEMPTED WHEN
THE FEDERAL STANDARDS BECOME EFFECTIVE, THE GIST OF APPELLANTS'
GRIEVANCE IS THAT, ACCORDING TO MICHIGAN AUTHORITIES, THEY ARE REQUIRED
UNDER MICHIGAN LAW TO INSTALL SEWAGE STORAGE DEVICES THAT (1) MAY
BECOME UNNECESSARY ONCE FEDERAL STANDARDS, AUTHORIZING DISCHARGE OF
TREATED SEWAGE, BECOME APPLICABLE OR (2) MAY, IN ANY EVENT, CONFLICT
WITH OTHER STATE REGULATIONS PENDING THE PROMULGATION AND EFFECTIVE
DATE OF THE FEDERAL STANDARDS.  THE IMMEDIACY AND REALITY OF
APPELLANTS' CONCERNS DO NOT DEPEND, CONTRARY TO WHAT THE DISTRICT COURT
MAY HAVE CONSIDERED, ON THE PROBABILITY THAT FEDERAL STANDARDS WILL
AUTHORIZE DISCHARGE OF TREATED SEWAGE IN MICHIGAN WATERS OR THAT OTHER
STATES WILL IMPLEMENT SEWAGE CONTROL REQUIREMENTS INCONSISTENT WITH
THOSE OF MICHIGAN.  THEY DEPEND INSTEAD ONLY ON THE PRESENT
EFFECTIVENESS IN FACT OF THE OBLIGATION UNDER THE MICHIGAN STATUTE TO
INSTALL SEWAGE STORAGE DEVICES.  FOR IF APPELLANTS ARE NOW UNDER SUCH
AN OBLIGATION, THAT IN AND OF ITSELF MAKES THEIR ATTACK ON THE VALIDITY
OF THE LAW A LIVE CONTROVERSY, AND NOT AN ATTEMPT TO OBTAIN AN ADVISORY
OPINION.  SEE, E.G., SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761
(1945) (EXISTING BURDEN ON INTERSTATE COMMERCE JUSTICIABLE CONTROVERSY
IN ABSENCE OF FEDERAL PRE-EMPTION OR OTHER CONFLICTING STATE LAWS). 

REGARDING THE PRESENT EFFECTIVENESS IN FACT OF A STATUTORY
OBLIGATION, THE PLURALITY OPINION IN POE V. ULLMAN, 367 U.S. 497, 508
(1961), STATED THAT A JUSTICIABLE CONTROVERSY DOES NOT EXIST WHERE
"COMPLIANCE WITH (CHALLENGED) STATUTES IS UNCOERCED BY THE RISK OF
THEIR ENFORCEMENT."  THAT, HOWEVER, IS NOT THIS CASE.  ALTHOUGH
APPELLEES HAVE INDICATED THAT THEY WILL NOT PROSECUTE UNDER THE
MICHIGAN ACT UNTIL ADEQUATE LAND-BASED PUMP-OUT FACILITIES ARE
AVAILABLE TO SERVICE VESSELS EQUIPPED WITH SEWAGE STORAGE DEVICES, THEY
HAVE SOUGHT ON THE BASIS OF THE ACT AND THE THREAT OF FUTURE
ENFORCEMENT TO OBTAIN COMPLIANCE AS SOON AS POSSIBLE.  THE FOLLOWING
COLLOQUY THAT OCCURRED ON ORAL ARGUMENT HERE IS INSTRUCTIVE, TR. OF
ORAL ARG. 34-35: 

     "(APPELLEES):  . . . WE URGE THAT THE LEADTIME FOR THE

  CONSTRUCTION OR ERECTION OF PUMP-OUT FACILITIES IS NECESSARY, AND

  THERE WOULD BE NO ENFORCEMENT UNTIL PUMP-OUT FACILITIES WERE

  AVAILABLE. 

       .          .          .          . 

     "Q.  BUT YOU'RE INSISTING THAT THE CARRIERS GET READY TO
COMPLY AND-- 

     "(APPELLEES):  YES SIR. 

     "Q.  -- BECAUSE IF YOU WAIT UNTIL PUMP-OUT STATIONS ARE READY

  TO BEGIN (SERVICING) TANKS, THEN THERE WILL BE ANOTHER GREAT

  DELAY? 

     "(APPELLEES):  OH, YES, SIR. 

     "Q.  SO YOU HAVE A RATHER CONCRETE CONFRONTATION WITH THESE
CARRIERS NOW, DON'T YOU? 

     "(APPELLEES):  YES, SIR, WE DO . . . . " THUS, IF APPELLANTS
ARE TO AVOID PROSECUTION, THEY MUST BE PREPARED, ACCORDING TO MICHIGAN
AUTHORITIES, TO RETAIN ALL SEWAGE ON BOARD AS SOON AS PUMP-OUT
FACILITIES ARE AVAILABLE, WHICH, IN TURN, MEANS THAT THEY MUST PROMPTLY
INSTALL SEWAGE STORAGE DEVICES.  /11/  IN THIS CIRCUMSTANCE, COMPLIANCE
IS COERCED BY THE THREAT OF ENFORCEMENT, AND THE CONTROVERSY IS BOTH
IMMEDIATE AND REAL.  SEE, E.G., PIERCE V. SOCIETY OF SISTERS, 268 U.S.
510 (1925); CITY OF ALTUS, OKLAHOMA V. CARR, 255 F.SUPP.  828, AFF'D
PER CURIAM, 385 U.S. 35 (1966).  SEE GENERALLY, E.G., COMMENT, 62
COL.L.REV.  106 (1962).  /12/ 

APPELLANTS NEXT ARGUE THAT THE DISTRICT COURT ERRED IN ABSTAINING
FROM DECIDING THE MERITS OF THEIR COMPLAINT.  /13/  WE AGREE THAT
ABSTENTION WAS NOT PROPER ON THE MAJORITY OF GROUNDS GIVEN BY THE
DISTRICT COURT, BUT HOLD THAT ABSTENTION WAS, NEVERTHELESS, APPROPRIATE
FOR ANOTHER REASON SUGGESTED BUT NOT FULLY ARTICULATED IN ITS OPINION. 
ABSTENTION IS A "JUDGE-MADE DOCTRINE . . . , FIRST FASHIONED IN 1941 IN
RAILROAD COMMISSION V. PULLMAN CO., 312 U.S. 496, (THAT) SANCTIONS . .
. ESCAPE (FROM IMMEDIATE DECISION) ONLY IN NARROWLY LIMITED 'SPECIAL
CIRCUMSTANCES,' PROPPER V. CLARK, 337 U.S. 472, 492," ZWICKLER V.
KOOTA, 389 U.S. 241, 248 (1967), JUSTIFYING "THE DELAY AND EXPENSE TO
WHICH APPLICATION OF THE ABSTENTION DOCTRINE INEVITABLY GIVES RISE." 
ENGLAND V. MEDICAL EXAMINERS, 375 U.S. 411, 418 (1964).  THE MAJORITY
OF CIRCUMSTANCES RELIED ON BY THE DISTRICT COURT IN THIS CASE DO NOT
FALL WITHIN THAT CATEGORY.  FIRST, THE ABSENCE OF AN IMMEDIATE THREAT
OF PROSECUTION DOES NOT ARGUE AGAINST REACHING THE MERITS OF
APPELLANTS' COMPLAINT.  IN YOUNGER V. HARRIS, 401 U.S. 37 (1971), AND
SAMUELS V. MACKELL, 401 U.S. 66 (1971), THIS COURT HELD THAT, APART
FROM "EXTRAORDINARY CIRCUMSTANCES," A FEDERAL COURT MAY NOT ENJOIN A
PENDING STATE PROSECUTION OR DECLARE INVALID THE STATUTE UNDER WHICH
THE PROSECUTION WAS BROUGHT.  THE DECISIONS THERE WERE PREMISED ON
CONSIDERATIONS OF EQUITY PRACTICE AND COMITY IN OUR FEDERAL SYSTEM THAT
HAVE LITTLE FORCE IN THE ABSENCE OF A PENDING STATE PROCEEDING.  IN
THAT CIRCUMSTANCE, EXERCISE OF FEDERAL COURT JURISDICTION ORDINARILY IS
APPROPRIATE IF THE CONDITIONS FOR DECLARATORY OR INJUNCTIVE RELIEF ARE
MET.  SEE GENERALLY PEREZ V. LEDESMA, 401 U.S. 82, 93 (1971) (SEPARATE
OPINION).     SIMILARLY, THE AVAILABILITY OF DECLARATORY RELIEF IN
MICHIGAN COURTS ON APPELLANTS' FEDERAL CLAIMS IS WHOLLY BESIDE THE
POINT.  IN ZWICKLER V. KOOTA, SUPRA, AT 248, WE SAID: 

     "IN THUS (ESTABLISHING JURISDICTION FOR THE EXERCISE OF)

FEDERAL JUDICIAL POWER, CONGRESS IMPOSED THE DUTY UPON ALL LEVELS

  OF THE FEDERAL JUDICIARY TO GIVE DUE RESPECT TO A SUITOR'S CHOICE

  OF A FEDERAL FORUM FOR THE HEARING AND DECISION OF HIS FEDERAL

  CONSTITUTIONAL CLAIMS.  PLAINLY, ESCAPE FROM THAT DUTY IS NOT

  PERMISSIBLE MERELY BECAUSE STATE COURTS ALSO HAVE THE SOLEMN

  RESPONSIBILITY, EQUALLY WITH THE FEDERAL COURTS, ' . . . TO

  GUARD, ENFORCE, AND PROTECT EVERY RIGHT GRANTED OR SECURED BY THE

  CONSTITUTION OF THE UNITED STATES . . . ,' ROBB V. CONNOLLY, 111

  U.S. 624, 637." 

COMPARE, E.G., ASKEW V. HARGRAVE, 401 U.S. 476 (1971).  THE POSSIBILITY
THAT THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY MAY UPON
MICHIGAN'S APPLICATION FORBID THE DISCHARGE OF EVEN TREATED SEWAGE IN
STATE WATERS AND THE ASSERTED ABSENCE OF PRESENT CONFLICT BETWEEN THE
MICHIGAN REQUIREMENTS AND OTHER STATE LAWS ARE EQUALLY IMMATERIAL. 
JUST AS THEY DO NOT DIMINISH THE IMMEDIACY AND REALITY OF APPELLANTS'
GRIEVANCE, THEY DO NOT CALL FOR ABSTENTION. 

THE LAST FACTOR RELIED ON BY THE DISTRICT COURT-- THE PUBLICATION OF
PROPOSED FEDERAL STANDARDS THAT MIGHT BE CONSIDERED BY MICHIGAN IN THE
INTERPRETATION AND ENFORCEMENT OF ITS STATUTE-- DOES, HOWEVER, POINT
TOWARD CONSIDERATIONS THAT FALL WITHIN THE "SPECIAL CIRCUMSTANCES"
PERMITTING ABSTENTION.  THE PARADIGM CASE FOR ABSTENTION ARISES WHEN
THE CHALLENGED STATE STATUTE IS SUSCEPTIBLE OF "A CONSTRUCTION BY THE
STATE COURTS THAT WOULD AVOID OR MODIFY THE (FEDERAL) CONSTITUTIONAL
QUESTION.  HARRISON V. NAACP, 360 U.S. 167.  COMPARE BAGGETT V.
BULLITT, 377 U.S. 360."  ZWICKLER V. KOOTA, SUPRA, AT 249.  MORE FULLY,
WE HAVE EXPLAINED: 

"WHERE RESOLUTION OF THE FEDERAL CONSTITUTIONAL QUESTION IS
DEPENDENT UPON, OR MAY BE MATERIALLY ALTERED BY, THE DETERMINATION OF
AN UNCERTAIN ISSUE OF STATE LAW, ABSTENTION MAY BE PROPER IN ORDER TO
AVOID UNNECESSARY FRICTION IN FEDERAL-STATE RELATIONS, INTERFERENCE
WITH IMPORTANT STATE FUNCTIONS, TENTATIVE DECISIONS ON QUESTIONS OF
STATE LAW, AND PREMATURE CONSTITUTIONAL ADJUDICATION . . . . THE
DOCTRINE . . . CONTEMPLATES THAT DEFERENCE TO STATE COURT ADJUDICATION
ONLY BE MADE WHERE THE ISSUE OF STATE LAW IS UNCERTAIN."  HARMAN V.
FORSSENIUS, 380 U.S. 528, 534 (1965).  THAT IS PRECISELY THE
CIRCUMSTANCE PRESENTED HERE.  THE MICHIGAN WATERCRAFT POLLUTION CONTROL
ACT OF 1970 HAS NOT BEEN CONSTRUED IN ANY MICHIGAN COURT, AND, AS
APPELLANTS THEMSELVES SUGGEST IN ATTACKING IT FOR VAGUENESS, ITS TERMS
ARE FAR FROM CLEAR IN PARTICULARS THAT GO TO THE FOUNDATION OF THEIR
GRIEVANCE.  IT IS INDEED ONLY AN ASSERTION BY APPELLEES THAT THE
MICHIGAN LAW PROSCRIBES THE DISCHARGE OF EVEN TREATED SEWAGE IN STATE
WATERS.  SECTION 3(2) OF THE ACT DOES STATE THAT "(IT IS UNLAWFUL TO
DISCHARGE . . . SEWAGE . . . FROM A RECREATIONAL, DOMESTIC OR FOREIGN
WATERCRAFT USED FOR PLEASURE OR FOR (COMMERCE) . . . ," AND SEC. 4(2)
DOES REQUIRE VESSELS EQUIPPED WITH TOILET FACILITIES TO HAVE SEWAGE
STORAGE DEVICES.  /14/  YET SEC. 3(1) SEEMINGLY CONTEMPLATES THE
DISCHARGE OF TREATED SEWAGE BY MERELY PROHIBITING ANY PERSON FROM
EMITTING SEWAGE "WHICH (RENDERS) THE WATER UNSIGHTLY, NOXIOUS OR
OTHERWISE UNWHOLESOME SO AS TO BE DETRIMENTAL TO THE PUBLIC HEALTH OR
WELFARE OR TO THE ENJOYMENT OF THE WATER FOR RECREATIONAL PURPOSES." 
MOREOVER, SEC. 11 PROVIDES THAT "(TO BE ENFORCEABLE, THE PROVISION (OF
THE ACT) OR THE RULE (PRESUMABLY PROMULGATED THEREUNDER) SHALL BE OF
SUCH FLEXIBILITY THAT A WATERCRAFT OWNER, IN CARRYING OUT THE PROVISION
OR RULE, IS ABLE TO MAINTAIN MARITIME SAFETY REQUIREMENTS AND COMPLY
WITH THE FEDERAL MARINE AND NAVIGATION LAWS AND REGULATIONS."  MICHIGAN
HAS THUS DEMONSTRATED CONCERN THAT ITS POLLUTION CONTROL REQUIREMENTS
BE SUFFICIENTLY FLEXIBLE TO ACCORD WITH FEDERAL LAW.  WE DO NOT KNOW,
OF COURSE, HOW FAR MICHIGAN COURTS WILL GO IN INTERPRETING THE
REQUIREMENTS OF THE STATE WATERCRAFT POLLUTION CONTROL ACT IN LIGHT OF
THE FEDERAL WATER QUALITY IMPROVEMENT ACT /15/  AND THE CONSTRAINTS OF
THE UNITED STATES CONSTITUTION.  /16/  BUT WE ARE SATISFIED THAT
AUTHORITATIVE RESOLUTION OF THE AMBIGUITIES IN THE MICHIGAN LAW IS
SUFFICIENTLY LIKELY TO AVOID OR SIGNIFICANTLY MODIFY THE FEDERAL
QUESTIONS APPELLANTS RAISE TO WARRANT ABSTENTION, PARTICULARLY IN VIEW
OF THE ABSENCE OF COUNTERVAILING CONSIDERATIONS THAT WE HAVE FOUND
COMPELLING IN PRIOR DECISIONS.  SEE, E.G., HARMAN V. FORSSENIUS, SUPRA,
AT 537; BAGGETT V. BULLITT, 377 U.S. 360, 378-379 (1964). 

IN AFFIRMING THE DECISION OF THE DISTRICT COURT TO ABSTAIN, WE, OF
COURSE, INTIMATE NO VIEW ON THE MERITS OF APPELLANTS' CLAIMS.  WE DO,
HOWEVER, VACATE THE JUDGMENT BELOW AND REMAND THE CASE TO THE DISTRICT
COURT WITH DIRECTIONS TO RETAIN JURISDICTION PENDING INSTITUTION BY
APPELLANTS OF APPROPRIATE PROCEEDINGS IN MICHIGAN COURTS.  SEE ZWICKLER
V. KOOTA, 389 U.S.,AT 244 N. 4. 

              IT IS SO ORDERED. 

/1/  APPELLANTS ALSO CONTEND THAT THE MICHIGAN LAW IS PRE-EMPTED BY
THE STEAMBOAT INSPECTION ACTS OF FEB. 28, 1871, 16 STAT. 440, AND OF
MAY 27, 1936, 49 STAT. 1380, AS AMENDED, 46 U.S.C. 361 ET SEQ.  AN
AMICUS CURIAE, MOREOVER, PRESSES THE CONTENTION, SUGGESTED IN
APPELLANTS' COMPLAINT, THAT THE MICHIGAN LAW CONFLICTS WITH THE UNITED
STATES-CANADIAN BOUNDARY WATERS TREATY OF 1909, 36 STAT. 2448, AS WELL
AS ENTERS INTO THE DOMAIN OF FOREIGN AFFAIRS CONSTITUTIONALLY RESERVED
TO THE NATIONAL GOVERNMENT.  SEE BRIEF OF DOMINION MARINE ASSOCIATION
AMICUS CURIAE. 

/2/  THE AUTHORITY TO ADMINISTER THE WATER QUALITY IMPROVEMENT ACT,
ORIGINALLY LODGED IN THE SECRETARY OF THE INTERIOR, WAS TRANSFERRED TO
THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY BY
REORGANIZATION PLAN NO. 3 OF 1970, SET OUT IN THE APPENDIX TO TITLE 5
OF THE UNITED STATES CODE. 

/3/  "SEWAGE" IS DEFINED UNDER THE ACT TO MEAN "HUMAN BODY WASTES
AND THE WASTES FROM TOILETS AND OTHER RECEPTACLES INTENDED TO RECEIVE
OR RETAIN BODY WASTES."  84 STAT. 100, 33 U.S.C. 1163(A)(6). 

/4/  A NOTICE OF PROPOSED STANDARDS WAS, HOWEVER, PUBLISHED ON MAY
12, 1971.  SEE 36 FED.REG.  8739. 

/5/  THE DISTRICT COURT ALSO NOTED THAT "(WITH REGARD TO PRE
EMPTION, THE SUPREME COURT IN SWIFT & CO. V. WICKHAM, 382 U.S. 111
(1965), HELD THAT SUPREMACY CLAUSE CASES ARE NOT WITHIN THE PURVIEW OF
A THREE JUDGE COURT."  336 F.SUPP.,AT 253.  APPELLANTS CORRECTLY POINT
OUT THAT IN REINSTATING THAT RULE, WICKHAM MADE CLEAR THAT A THREE
JUDGE COURT IS THE PROPER FORUM FOR ALL CLAIMS AGAINST THE CHALLENGED
STATUTE SO LONG AS THERE IS A NONFRIVOLOUS CONSTITUTIONAL CLAIM THAT
CONSTITUTES A JUSTICIABLE CONTROVERSY AND WARRANTS, ON ALLEGATIONS OF
IRREPARABLE HARM, CONSIDERATION FOR INJUNCTIVE RELIEF.  SEE 382 U.S.,AT
122 N. 17, 125.  INDEED, THAT WAS THE EXPLICIT HOLDING IN FLORIDA LIME
& AVOCADO GROWERS, INC. V. JACOBSEN, 362 U.S. 73, 80-81 (1960), RE
AFFIRMING PRIOR CASES.  IT IS CLEAR THAT APPELLANTS'  COMPLAINT
SATISFIES THIS TEST IF THE CONSTITUTIONAL ISSUES RAISED ARE JUSTICIABLE
CONTROVERSIES.  SINCE WE HOLD, INFRA, THAT THEY ARE, THREE-JUDGE COURT
JURISDICTION EXISTS OVER ALL OF APPELLANTS' CLAIMS, INCLUDING THE
SUPREMACY CLAUSE ISSUES. 

/6/  THE MICHIGAN AUTHORITIES HAVE SO FAR GENERALLY REFRAINED FROM
PROSECUTION BECAUSE ADEQUATE LAND-BASED PUMP-OUT FACILITIES ARE NOT YET
AVAILABLE TO SERVICE VESSELS EQUIPPED WITH SEWAGE STORAGE DEVICES.  SEE
INFRA, AT 507-508.  AFTER ORAL ARGUMENT HERE, THE SOLICITOR GENERAL OF
MICHIGAN INFORMED US "THAT LOCAL OFFICIALS IN CHEBOYGAN COUNTY,
MICHIGAN, HAVE 'TICKETED' A COAST GUARD CAPTAIN FOR DISCHARGING SEWAGE
INTO THE WATERS OF THE GREAT LAKES."  HOWEVER, "TO ASSURE THE COURT
THAT MICHIGAN WILL NOT DEPART FROM THE REPRESENTATIONS IT HAS MADE TO
THE COURT," THE SOLICITOR GENERAL STATED THAT HE IS "TAKING IMMEDIATE
STEPS TO QUASH THE CHARGE OR HAVE THE LOCAL COURT STAY ITS HAND UNTIL"
THE DECISION HERE. 

/7/  MICHIGAN HAS FILED AN APPLICATION WITH THE ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY FOR A PROHIBITION UNDER 33 U.S.C.
1163(F) ON THE DISCHARGE OF ANY SEWAGE, TREATED OR UNTREATED, INTO ALL
OF THE STATE'S WATERS SUBJECT TO THE WATER QUALITY IMPROVEMENT ACT. 
THE ADMINISTRATOR HAS INDICATED THAT ANY NO-DISCHARGE REGULATION ISSUED
WILL NOT BECOME EFFECTIVE BEFORE THE EFFECTIVE DATE OF THE INITIAL
STANDARDS PROMULGATED UNDER SEC. 1163(B)(1).  SEE 36 FED.REG.  8739
8740.  APPELLANTS ARGUE THAT THE ADMINISTRATOR'S AUTHORITY TO ISSUE NO
DISCHARGE REGULATIONS IS NARROW AND COULD NOT ENCOMPASS A COMPLETE
PROHIBITION ON DISCHARGE THROUGHOUT MICHIGAN'S NAVIGABLE WATERS.  SINCE
WE FIND, INFRA, THAT THE POSSIBILITY OF SUCH A PROHIBITION IS
IMMATERIAL TO THE ISSUES ANSWERED HERE, WE NEED NOT NOW DECIDE THIS
QUESTION. 

/8/  APPELLANTS CONTEND IN THIS REGARD THAT THE LAWS OF OTHER STATES
DEALING WITH THE DISCHARGE OF SEWAGE ARE CRITICALLY DIFFERENT FROM THE
MICHIGAN STATUTE IN VARIOUS RESPECTS.  THIS QUESTION, TOO, WE NEED NOT
ADDRESS, SINCE WE FIND, INFRA, THAT THE PRESENCE OR ABSENCE OF
CONFLICTING STATE REQUIREMENTS IS IRRELEVANT. 

/9/  SEE N. 4, SUPRA. 

/10/  ALTHOUGH APPELLEES TOOK AN EQUIVOCAL POSITION ON THIS QUESTION
IN ORAL ARGUMENT HERE, SEE TR. OF ORAL ARG. 36-39, THE DISTRICT COURT
BELOW EXPRESSLY FOUND SUCH A CONCESSION, SEE 336 F.SUPP.,AT 255, AND
APPELLEES REPEATED THE CONCESSION IN OPPOSING APPELLANTS'
JURISDICTIONAL STATEMENT.  SEE BRIEF IN SUPPORT OF MOTION TO DISMISS OR
AFFIRM 11.  IN ANY EVENT, THE TERMS OF THE WATER QUALITY IMPROVEMENT
ACT ARE CLEAR THAT PRE-EMPTION OCCURS AT LEAST WHEN THE INITIAL FEDERAL
STANDARDS PROMULGATED UNDER THE ACT BECOME EFFECTIVE.  SEE 33 U.S.C.
1163(F), QUOTED IN PART, SUPRA, AT 503-504.  SEE ALSO 36 FED.REG.  8739
8740. 

/11/ APPELLEES STRESSED IN ORAL ARGUMENT HERE THAT "(THE PROVISION
FOR PUMP-OUT FACILITIES IS NO GREAT MECHANICAL ACCOMPLISHMENT."  TR. OF
ORAL ARG. 35.  THIS ONLY REINFORCES THE CONCLUSION THAT APPELLANTS
MUST, ACCORDING TO MICHIGAN AUTHORITIES, QUICKLY GET INTO A POSITION TO
COMPLY WITH THE MICHIGAN STATUTE. 

/12/  IN COMING TO A CONTRARY CONCLUSION, THE DISTRICT COURT RELIED
HEAVILY ON PUBLIC SERV. COMM'N V. WYCOFF CO., 344 U.S. 237 (1965),
WHERE WE HELD THAT DECLARATORY RELIEF WAS INAPPROPRIATE IN BEHALF OF A
CARRIER SEEKING A DETERMINATION THAT ITS INTRASTATE TRANSPORTATION
CONSTITUTED INTERSTATE COMMERCE.  THE DISTRICT COURT'S RELIANCE ON THAT
DECISION WAS MISPLACED.  AS THE COURT SAID IN CALIFORNIA COMM'N V.
UNITED STATES, 355 U.S. 534, 538-539 (1958), WYCOFF CO. WAS A CASE
"WHERE A CARRIER SOUGHT RELIEF IN A FEDERAL COURT AGAINST A STATE
COMMISSION IN ORDER 'TO GUARD AGAINST THE POSSIBILITY,' (344 U.S.),AT
244, THAT THE COMMISSION WOULD ASSUME JURISDICTION."  HERE, AS IN
CALIFORNIA COMM'N, THE CONFRONTATION BETWEEN THE PARTIES HAS ALREADY
ARISEN, AND "(THE CONTROVERSY IS PRESENT AND CONCRETE . . . . "  355
U.S.,AT 539. 

/13/  THE QUESTION OF ABSTENTION, OF COURSE, IS ENTIRELY SEPARATE
FROM THE QUESTION OF GRANTING DECLARATORY OR INJUNCTIVE RELIEF.  SEE
GENERALLY GOLDEN V. ZWICKLER, 394 U.S. 103 (1969); ZWICKLER V. KOOTA,
389 U.S. 241 (1967). 

/14/ WE ASSUME THAT THESE PROVISIONS APPLY TO COMMERCIAL WATERCRAFT,
THOUGH EVEN THIS IS NOT TEXTUALLY CLEAR.  SECTION 3(2) IN TERMS APPLIES
ONLY TO "RECREATIONAL" VESSELS, WHILE SEC. 4(2)-- DESPITE THE EXPANSIVE
DEFINITION OF "WATERCRAFT" IN SEC. 2(G)-- COULD BE SIMILARLY LIMITED IN
LIGHT OF SEC. 4(1), WHICH GOVERNS ONLY "PLEASURE OR RECREATIONAL
WATERCRAFT." 

/15/  THE MICHIGAN COURTS MAY ALSO SEE FIT TO INTERPRET THE MICHIGAN
STATUTE IN LIGHT OF THE OTHER SUPREMACY CLAUSE ARGUMENTS THAT HAVE BEEN
MADE IN THIS CASE.  SEE N. 1, SUPRA. 

/16/  IN THE LATTER REGARD, SEE, E.G., GOVERNMENT EMPLOYEES V.
WINDSOR, 353 U.S. 364 (1957). 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING IN THE RESULT. 

I AGREE THAT THE COMPLAINT PRESENTS AN ACTUAL CONTROVERSY AND THAT
THE DISTRICT COURT PROPERLY ABSTAINED.  I THEREFORE CONCUR IN THE
RESULT AND JOIN THE JUDGMENT OF THE COURT. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THE THREE-JUDGE COURT BELOW ASSIGNED TWO GROUNDS FOR DISMISSING
APPELLANTS' COMPLAINT:  (I) THERE WAS NO JUSTICIABLE CONTROVERSY
WARRANTING A DECLARATORY JUDGMENT; AND (II) THIS WAS AN APPROPRIATE
CASE FOR ABSTENTION BY THE FEDERAL COURTS UNTIL THE MICHIGAN ACT IS
CONSTRUED BY ITS COURTS.  336 F.SUPP.  248 (1971).  THIS COURT TODAY
AFFIRMS THE DECISION OF THE COURT BELOW TO ABSTAIN, DESPITE REJECTING
VIRTUALLY ALL OF THE PREMISES UPON WHICH IT WAS BASED. 

THE OPINION OF THIS COURT CONCLUDES, CONTRARY TO THE HOLDING BELOW,
THAT THE CONTROVERSY IS JUSTICIABLE AND THAT A CASE FOR DECLARATORY
JUDGMENT RELIEF WAS STATED.  THE COURT ALSO CONCLUDED THAT "ABSTENTION
WAS NOT PROPER ON THE MAJORITY OF GROUNDS GIVEN BY THE DISTRICT
COURT."  NEVERTHELESS, AND DESPITE GENERAL DISAGREEMENT WITH THE TRIAL
COURT ON THE MAJOR ISSUES, ITS DECISION TO ABSTAIN IS NOW AFFIRMED. 

AS IT SEEMS TO ME THAT THE CENTRAL THRUST OF THE COURT'S REASONING
(WITH WHICH I AGREE) REQUIRES REVERSAL RATHER THAN AFFIRMANCE OF THIS
DECISION, I FILE THIS DISSENT.     THERE IS INDEED A SERIOUS PRESENT
CONTROVERSY, INVOLVING IMPORTANT FEDERAL ISSUES, AND POSING FOR THE
LAKE CARRIERS AN IMMEDIATE CHOICE BETWEEN THE POSSIBILITY OF CRIMINAL
PROSECUTION OR THE EXPENDITURE OF SUBSTANTIAL SUMS OF MONEY FOR
ANTIPOLLUTION DEVICES AND EQUIPMENT WHICH MAY NOT BE COMPATIBLE WITH
THE FEDERAL REGULATIONS WHICH ADMITTEDLY IN DUE TIME WILL BE PRE
EMPTIVE.  THIS PRESENTS A CLASSIC CASE FOR DECLARATORY RELIEF, 28
U.S.C. 2201, MARYLAND CASUALTY CO. V. PACIFIC COAL & OIL CO., 312 U.S.
270, 273 (1941).  AS THE OPINION OF THE COURT STATES, "COMPLIANCE (WITH
THE MICHIGAN LAW) IS COERCED BY THE THREAT OF ENFORCEMENT, AND THE
CONTROVERSY IS BOTH IMMEDIATE AND REAL." 

ON THE SECOND QUESTION, THAT OF ABSTENTION, THE COURT FINALLY FINDS
A GROUND IN THE POSSIBILITY THAT THE STATE COURTS OF MICHIGAN MAY
CONSTRUE THE STATUTE IN A WAY THAT WILL AVOID THE FEDERAL QUESTIONS. 
BUT THIS IS A SLENDER REED ON WHICH TO REST A JUDGMENT.  THE MICHIGAN
STATUTE IS NOT AMBIGUOUS ON THE ISSUE WHICH APPELLANTS DEEM THE MOST
CRITICAL, NAMELY, WHETHER THEY ARE REQUIRED UNDER MICHIGAN LAW TO
INSTALL AT CONSIDERABLE EXPENSE SEWAGE STORAGE DEVICES THAT MAY BECOME
UNNECESSARY WHEN FEDERAL STANDARDS BECOME APPLICABLE.  SECTION 4(2) OF
THE MICHIGAN ACT IS UNEQUIVOCAL, PROVIDING THAT VESSELS MAY NOT USE
MARINE TOILETS IN MICHIGAN WATERS UNLESS EQUIPPED WITH: 

     "(A) A HOLDING TANK OR SELF-CONTAINED MARINE TOILET WHICH WILL

RETAIN ALL SEWAGE PRODUCED ON THE WATERCRAFT FOR SUBSEQUENT

  DISPOSAL AT APPROVED DOCKSIDE OR ONSHORE COLLECTION AND TREATMENT

  FACILITIES. 

     "(B) AN INCINERATING DEVICE WHICH WILL REDUCE TO ASH ALL
SEWAGE

  PRODUCED ON THE WATERCRAFT.  THE ASH SHALL BE DISPOSED OF ONSHORE

  IN A MANNER WHICH WILL PRECLUDE POLLUTION." 

WATERS.  /1/  THESE TWO SECTIONS UNMISTAKABLY EXPRESS MICHIGAN'S
DECISION IN FAVOR OF RETENTION OR INCINERATION OF SEWAGE ABOARD SHIPS
RATHER THAN ITS TREATMENT AND DISCHARGE INTO STATE WATERS.  /2/ 

THE MAJORITY OPINION OF THE COURT VIEWS SEC. 3(1) AS AFFORDING SOME
FLEXIBILITY AND ROOM FOR INTERPRETATION.  /3/  YET, IT SEEMS CLEAR FROM
THE CONTEXT OF THE ENTIRE STATUTE THAT SEC. 3(1) IS A GENERAL STATEMENT
OF ENVIRONMENTAL PURPOSE APPLICABLE TO ALL PERSONS (AS DEFINED),
EXPRESSING THE OVERALL STATUTORY OBJECTIVE OF PROHIBITING POLLUTION OF
MICHIGAN WATERS.  THIS SECTION CAN HARDLY BE CONSTRUED TO CONTRADICT
THE SPECIFIC PROVISIONS OF SEC. 4(2) WHICH RELATE TO THE OWNERS AND
OPERATORS OF FOREIGN AND DOMESTIC VESSELS ENGAGED IN COMMERCE UPON
MICHIGAN WATERS.  INDEED, THE MICHIGAN STATE ATTORNEY GENERAL, THE
DEPARTMENT OF NATURAL RESOURCES AND ITS DIRECTOR, AND THE WATER
RESOURCES COMMISSION AND ITS EXECUTIVE SECRETARY ALL READ THE STATUTE
AS "DESIGNED TO PREVENT APPELLANTS AND OTHERS IN THEIR CLASS FROM
POURING THEIR FILTH, NO MATTER HOW WELL TREATED, INTO MICHIGAN WATERS
OF THE GREAT LAKES."  BRIEF FOR APPELLEES 16.  /4/ 

APPELLANTS HAVE RAISED FEDERAL QUESTIONS (AS TO THE MERITS OF WHICH
NO OPINION IS EXPRESSED) WHICH ARE IMPORTANT TO THE PUBLIC AS WELL AS
TO THE LITIGANTS.  THEY HAVE SOUGHT RELIEF IN A FEDERAL COURT, RELYING
ON "THE DUTY UPON ALL LEVELS OF THE FEDERAL JUDICIARY TO GIVE DUE
RESPECT TO SUITOR'S CHOICE OF A FEDERAL FORUM FOR THE HEARING AND
DECISION OF HIS FEDERAL CONSTITUTIONAL CLAIMS."  ZWICKLER V. KOOTA, 389
U.S. 241, 248 (1967).  IT SEEMS PROBABLE THAT THESE FEDERAL QUESTIONS
WILL REMAIN IN THEIR PRESENT POSTURE, WHATEVER INTERPRETATION MAY BE
PLACED UPON THE MICHIGAN STATUTE BY A STATE COURT.  THE QUESTIONS OF
CONGRESSIONAL INTENT TO PREEMPT THE REGULATION OF MARINE SANITATION
DEVICES AND OF MULTIPLE STATE REGULATORY SCHEMES WHICH MAY UNDULY
BURDEN INTERSTATE COMMERCE ARE, IN LARGE MEASURE, INDEPENDENT OF THE
PARTICULAR CONSTRUCTION GIVEN THE MICHIGAN ACT. 

WE HAVE SPOKEN PREVIOUSLY OF "THE DELAY AND EXPENSE TO WHICH
APPLICATION OF THE ABSTENTION DOCTRINE INEVITABLY GIVES RISE."  ENGLAND
V. MEDICAL EXAMINERS, 375 U.S. 411, 418 (1964).  THE RELEGATION TO
STATE COURTS OF THIS IMPORTANT LITIGATION, INVOLVING MAJOR FEDERAL
ISSUES AND AFFECTING EVERY SHIP OPERATING IN MICHIGAN WATERS, IS LIKELY
TO RESULT IN SERIOUS DELAY, SUBSTANTIAL EXPENSE TO THE PARTIES
(INCLUDING THE STATE), AND A PROLONGING OF THE UNCERTAINTY WHICH NOW
EXISTS. 

I WOULD REVERSE THE JUDGMENT BELOW AND DIRECT THE DISTRICT COURT TO
PROCEED ON THE MERITS. 

/1/  "IT IS UNLAWFUL TO DISCHARGE, DUMP, THROW OR DEPOSIT GARBAGE,
LITTER, SEWAGE OR OIL FROM A RECREATIONAL, DOMESTIC OR FOREIGN
WATERCRAFT USED FOR PLEASURE OR FOR THE PURPOSE OF CARRYING PASSENGERS,
CARGO OR OTHERWISE ENGAGED IN COMMERCE ON THE WATERS OF THIS STATE." 
STATE OF MICHIGAN ACT 167, PUBLIC ACTS OF 1970, SEC. 3(2). 

/2/  BY DEFINING "SEWAGE" IN SEC. 2(D) OF THE ACT TO MEAN ALL HUMAN
BODY WASTES, TREATED OR UNTREATED, MICHIGAN FURTHER PRECLUDES ANY
POSSIBILITY THAT DISCHARGE OF TREATED SEWAGE WOULD BE PERMITTED. 

/3/  "A PERSON SHALL NOT PLACE, THROW, DEPOSIT, DISCHARGE OR CAUSE
TO BE DISCHARGED INTO OR ONTO THE WATERS OF THIS STATE, ANY LITTER,
SEWAGE, OIL OR OTHER LIQUID OR SOLID MATERIALS WHICH RENDER THE WATER
UNSIGHTLY, NOXIOUS OR OTHERWISE UNWHOLESOME SO AS TO BE DETRIMENTAL TO
THE PUBLIC HEALTH OR WELFARE OR TO THE ENJOYMENT OF THE WATER FOR
RECREATIONAL PURPOSES."  STATE OF MICHIGAN ACT 167, PUBLIC ACTS OF
1970, SEC. 3(1). 

/4/  NOR DO I AGREE WITH THE MAJORITY THAT SEC. 11 OF THE MICHIGAN
ACT AFFORDS A REASON FOR ABSTENTION.  SECTION 11 PROVIDES THAT ANY
PROVISION OR RULE UNDER THE ACT "SHALL BE OF SUCH FLEXIBILITY THAT A
WATERCRAFT OWNER . . . IS ABLE TO MAINTAIN MARITIME SAFETY REQUIREMENTS
AND COMPLY WITH THE FEDERAL MARINE AND NAVIGATION LAWS AND
REGULATIONS."  THIS LANGUAGE APPEARS TO RELATE ONLY TO FEDERAL SAFETY,
MARINE, AND NAVIGATION LAWS AND REGULATIONS.  IT DOES NOT REFER TO THE
FEDERAL WATER POLLUTION CONTROL ACT OR TO FEDERAL LAWS RELATING TO
POLLUTION.  IT IS DIFFICULT TO BELIEVE THAT THIS SINGLE SENTENCE IN
SEC. 11 OF THE MICHIGAN ACT COULD BE CONSTRUED TO NULLIFY THE OTHER
AFFIRMATIVE PROVISIONS PROHIBITING ALTOGETHER THE DISCHARGE OF SEWAGE. 

SCOTT H. ELDER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WAS JOHN A. HAMILTON. 

ROBERT A. DERENGOSKI, SOLICITOR GENERAL OF MICHIGAN, ARGUED THE
CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE FRANK J. KELLEY,
ATTORNEY GENERAL, AND JEROME MASLOWSKI AND FRANCIS J. CARRIER,
ASSISTANT ATTORNEYS GENERAL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY ROBERT A.
JENKINS AND FENTON F. HARRISON FOR THE DOMINION MARINE ASSN., AND BY
NICHOLAS J. HEALY AND GORDON W. PAULSEN FOR ASSURANCEFORENINGEN GARD ET
AL. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ,
FIRST ASSISTANT ATTORNEY GENERAL, AND THOMAS F. HARRISON AND PHILIP
WEINBERG, ASSISTANT ATTORNEYS GENERAL, FILED A BRIEF FOR THE ATTORNEY
GENERAL OF NEW YORK AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :





















DEEPSOUTH PACKING CO. V. LAITRAM CORP., 406 U.S. 518 


       DEEPSOUTH PACKING CO., INC., V. LAITRAM CORP.

     CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 71-315.  ARGUED APRIL 11, 1972-- DECIDED MAY 30, 1972 


PETITIONER IS NOT FORECLOSED BY 35 U.S.C. 271(A), WHICH PROSCRIBES
THE UNAUTHORIZED MAKING OF ANY PATENTED INVENTION WITHIN THE UNITED
STATES, FROM MAKING THE PARTS OF SHRIMP DEVEINING MACHINES (FOR WHICH
RESPONDENT WAS ADJUDGED TO HAVE VALID COMBINATION PATENTS) TO SELL TO
FOREIGN BUYERS FOR ASSEMBLY BY THE BUYERS FOR USE ABROAD.  THE WORD
"MAKES" AS USED IN SEC. 271(A) DOES NOT EXTEND TO THE MANUFACTURE OF
THE CONSTITUENT PARTS OF A COMBINATION MACHINE, AND THE UNASSEMBLED
EXPORT OF THE ELEMENTS OF AN INVENTION DOES NOT INFRINGE THE PATENT. 
RADIO CORP. OF AMERICA V. ANDREA, 79 F.2D 626.  PP. 519-532. 

443 F.2D 936, REVERSED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, STEWART, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C. J., AND POWELL AND REHNQUIST,
JJ., JOINED, POST, P. 532. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
LOUISIANA HAS WRITTEN: 

     "SHRIMP, WHETHER BOILED, BROILED, BARBECUED OR FRIED, ARE A

  GUSTATORY DELIGHT, BUT THEY DID NOT EVOLVE TO SATISFY MAN'S

  PALATE.  LIKE OTHER CRUSTACEANS, THEY WEAR THEIR SKELETONS

  OUTSIDE THEIR BODIES IN ORDER TO SHIELD THEIR SAVORY PINK AND

  WHITE FLESH AGAINST PREDATORS, INCLUDING MAN.  THEY ALSO CARRY

  THEIR INTESTINES, COMMONLY CALLED VEINS, IN BAGS (OR SAND BAGS)

THAT RUN THE LENGTH OF THEIR BODIES.  FOR SHRIMP TO BE EDIBLE, IT

  IS NECESSARY TO REMOVE THEIR SHELLS.  IN ADDITION, IF THE VEIN IS

  REMOVED, SHRIMP BECOME MORE PLEASING TO THE FASTIDIOUS AS WELL AS

  MORE PALATABLE."  /1/

SUCH "GUSTATORY" OBSERVATIONS ARE RARE EVEN IN THOSE PISCATORIALLY
FAVORED FEDERAL COURTS BLISSFULLY SITUATED ON THE NATION'S GULF COAST,
BUT THEY ARE PROPERLY RECITED IN THIS CASE.  PETITIONER AND RESPONDENT
BOTH HOLD PATENTS ON MACHINES THAT DEVEIN SHRIMP MORE CHEAPLY AND
EFFICIENTLY THAN COMPETING MACHINERY OR HAND LABOR CAN DO THE JOB. 
EXTENSIVE LITIGATION BELOW HAS ESTABLISHED THAT RESPONDENT, THE LAITRAM
CORP., HAS THE SUPERIOR CLAIM AND THAT THE DISTRIBUTION AND USE OF
PETITIONER DEEPSOUTH'S MACHINERY IN THIS COUNTRY SHOULD BE ENJOINED TO
PREVENT INFRINGEMENT OF LAITRAM'S PATENTS.  LAITRAM CORP. V. DEEPSOUTH
PACKING CO., 443 F.2D 928 (CA5 1971).  WE GRANTED CERTIORARI, 404 U.S.
1037 (1972), TO CONSIDER A RELATED QUESTION:  IS DEEPSOUTH, BARRED FROM
THE AMERICAN MARKET BY LAITRAM'S PATENTS, ALSO FORECLOSED BY THE PATENT
LAWS FROM EXPORTING ITS DEVEINERS, IN LESS THAN FULLY ASSEMBLED FORM,
FOR USE ABROAD? 

        I 

A RUDIMENTARY UNDERSTANDING OF THE PATENTS IN DISPUTE IS A
PREREQUISITE TO COMPREHENDING THE LEGAL ISSUE PRESENTED.  THE DISTRICT
COURT DETERMINED THAT THE LAITRAM CORP. HELD TWO VALID PATENTS FOR
MACHINERY USED IN THE PROCESS OF DEVEINING SHRIMP.  ONE GRANTED IN
1954, /2/  ACCORDED LAITRAM RIGHTS OVER A "SLITTER"  WHICH EXPOSED THE
VEINS OF SHRIMP BY USING WATER PRESSURE AND GRAVITY TO FORCE THE SHRIMP
DOWN AN INCLINED TROUGH STUDDED WITH RAZOR BLADES.  AS THE SHRIMP
DESCEND THROUGH THE TROUGH THEIR BACKS ARE SLIT BY THE BLADES OR OTHER
KNIFE-LIKE OBJECTS ARRANGED IN A ZIG-ZAG PATTERN.  THE SECOND PATENT,
GRANTED IN 1958, COVERS A "TUMBLER," "A DEVICE TO MECHANICALLY REMOVE
SUBSTANTIALLY ALL VEINS FROM SHRIMP WHOSE BACKS HAVE PREVIOUSLY BEEN
SLIT," APP. 127, BY THE MACHINES DESCRIBED IN THE 1954 PATENT.  THIS
INVENTION USES STREAMS OF WATER TO CARRY SLIT SHRIMP INTO AND THEN OUT
OF A REVOLVING DRUM FABRICATED FROM COMMERCIAL SHEET METAL.  AS SHRIMP
PASS THROUGH THE DRUM THE HOOKED "LIPS" OF THE PUNCHED METAL,
"PROJECTING AT AN ACUTE ANGLE FROM THE SUPPORTING MEMBER AND HAVING A
SMOOTH ROUNDED FREE EDGE FOR ENGAGING BENEATH THE VEIN OF A SHRIMP AND
FOR WEDGING THE VEIN BETWEEN THE LIP AND THE SUPPORTING MEMBER," APP.
131, ENGAGE THE VEINS AND REMOVE THEM. 

BOTH THE SLITTER AND THE TUMBLER ARE COMBINATION PATENTS; THAT IS, 

"(NONE OF THE PARTS REFERRED TO ARE NEW, AND NONE ARE CLAIMED AS
NEW; NOR IS ANY PORTION OF THE COMBINATION LESS THAN THE WHOLE CLAIMED
AS NEW, OR STATED TO PRODUCE ANY GIVEN RESULT.  THE END IN VIEW IS
PROPOSED TO BE ACCOMPLISHED BY THE UNION OF ALL, ARRANGED AND COMBINED
TOGETHER IN THE MANNER DESCRIBED.  AND THIS COMBINATION, COMPOSED OF
ALL THE PARTS MENTIONED IN THE SPECIFICATION, AND ARRANGED WITH
REFERENCE TO EACH OTHER, AND TO OTHER PARTS OF THE (MACHINE) IN THE
MANNER THEREIN DESCRIBED, IS STATED TO BE THE IMPROVEMENT, AND IS THE
THING PATENTED."  PROUTY V. RUGGLES, 16 PET. 336, 341 (1842).  THE
SLITTER'S ELEMENTS AS RECITED IN LAITRAM'S PATENT CLAIM WERE:  AN
INCLINED TROUGH, A "KNIFE" (ACTUALLY, KNIVES) POSITIONED IN THE TROUGH,
AND A MEANS (WATER SPRAYED FROM JETS) TO MOVE THE SHRIMP DOWN THE
TROUGH.  THE TUMBLER'S ELEMENTS INCLUDE A "LIP," A "SUPPORT MEMBER,"
AND A "MEANS" (WATER THRUST FROM JETS).  AS IS USUAL IN COMBINATION
PATENTS, NONE OF THE ELEMENTS IN EITHER OF THESE PATENTS WERE
THEMSELVES PATENTABLE AT THE TIME OF THE PATENT, NOR ARE THEY NOW.  THE
MEANS IN BOTH INVENTIONS, MOVING WATER, WAS AND IS, OF COURSE,
COMMONPLACE.  (IT IS NOT SUGGESTED THAT DEEPSOUTH INFRINGED LAITRAM'S
PATENTS BY ITS USE OF WATER JETS.)  THE CUTTING INSTRUMENTS AND
INCLINED TROUGHS USED IN SLITTERS WERE AND ARE COMMODITIES AVAILABLE
FOR GENERAL USE.  THE STRUCTURE OF THE LIP AND SUPPORT MEMBER IN THE
TUMBLER WERE HARDLY NOVEL:  LAITRAM CONCEDES THAT THE INVENTORS MERELY
ADAPTED PUNCHED METAL SHEETS ORDERED FROM A COMMERCIAL CATALOG IN ORDER
TO PERFECT THEIR INVENTION.  THE PATENTS WERE WARRANTED NOT BY THE
NOVELTY OF THEIR ELEMENTS BUT BY THE NOVELTY OF THE COMBINATION THEY
REPRESENTED.  INVENTION WAS RECOGNIZED BECAUSE LAITRAM'S ASSIGNORS /3/
COMBINED ORDINARY ELEMENTS IN AN EXTRAORDINARY WAY-- A NOVEL UNION OF
OLD MEANS WAS DESIGNED TO ACHIEVE NEW ENDS.  /4/  THUS, FOR BOTH
INVENTIONS "THE WHOLE IN SOME WAY EXCEEDED) THE SUM OF ITS PARTS." 
GREAT A. & P. TEA CO. V. SUPERMARKET EQUIPMENT CORP., 340 U.S. 147, 152
(1950). 

        II 

THE LOWER COURT'S DECISION THAT LAITRAM HELD VALID COMBINATION
PATENTS ENTITLED THE CORPORATION TO THE PRIVILEGES BESTOWED BY 35
U.S.C. 154, THE KEYSTONE PROVISION OF THE PATENT CODE.  "(FOR THE TERM
OF SEVENTEEN YEARS" FROM THE DATE OF THE PATENT, LAITRAM HAD "THE RIGHT
TO EXCLUDE OTHERS FROM MAKING, USING, OR SELLING THE INVENTION
THROUGHOUT THE UNITED STATES . . . ."  THE SEC. 154 RIGHT IN TURN
PROVIDES THE BASIS FOR AFFORDING THE PATENTEE AN INJUNCTION AGAINST
DIRECT, INDUCED, AND CONTRIBUTORY INFRINGEMENT, 35 U.S.C. 283, OR AN
AWARD OF DAMAGES WHEN SUCH INFRINGEMENT HAS ALREADY OCCURRED, 35 U.S.C.
284.  INFRINGEMENT IS DEFINED BY 35 U.S.C. 271 IN TERMS THAT FOLLOW
THOSE OF SEC. 154: 

     "(A) EXCEPT AS OTHERWISE PROVIDED IN THIS TITLE, WHOEVER

  WITHOUT AUTHORITY MAKES, USES OR SELLS ANY PATENTED INVENTION,

  WITHIN THE UNITED STATES DURING THE TERM OF THE PATENT THEREFOR,

  (DIRECTLY) INFRINGES THE PATENT. 

     "(B) WHOEVER ACTIVELY INDUCES INFRINGEMENT OF A PATENT SHALL
BE LIABLE AS AN INFRINGER. 

    "(C) WHOEVER SELLS A COMPONENT OF A PATENTED MACHINE,

  MANUFACTURE, COMBINATION OR COMPOSITION, OR A MATERIAL OR

  APPARATUS FOR USE IN PRACTICING A PATENTED PROCESS, CONSTITUTING

  A MATERIAL PART OF THE INVENTION, KNOWING THE SAME TO BE

  ESPECIALLY MADE OR ESPECIALLY ADAPTED FOR USE IN AN INFRINGEMENT

  OF SUCH PATENT, AND NOT A STAPLE ARTICLE OR COMMODITY OF COMMERCE

  SUITABLE FOR SUBSTANTIAL NONINFRINGING USE, SHALL BE LIABLE AS A

  CONTRIBUTORY INFRINGER." 

AS A RESULT OF THESE PROVISIONS THE JUDGMENT OF LAITRAM'S PATENT
SUPERIORITY FORECLOSES DEEPSOUTH AND ITS CUSTOMERS FROM ANY FUTURE USE
(OTHER THAN A USE APPROVED BY LAITRAM OR OCCURRING AFTER THE LAITRAM
PATENT HAS EXPIRED) OF ITS DEVEINERS "THROUGHOUT THE UNITED STATES." 
THE PATENT PROVISIONS TAKEN IN CONJUNCTION WITH THE JUDGMENT BELOW ALSO
ENTITLE LAITRAM TO THE INJUNCTION IT HAS RECEIVED PROHIBITING DEEPSOUTH
FROM CONTINUING TO "MAKE" OR, ONCE MADE, TO "SELL" DEVEINERS
"THROUGHOUT THE UNITED STATES."  FURTHER, LAITRAM MAY RECOVER DAMAGES
FOR ANY PAST UNAUTHORIZED USE, SALE, OR MAKING "THROUGHOUT THE UNITED
STATES."  THIS MUCH IS NOT DISPUTED. 

BUT DEEPSOUTH ARGUES THAT IT IS NOT LIABLE FOR EVERY TYPE OF PAST
SALE AND THAT A PORTION OF ITS FUTURE BUSINESS IS SALVAGEABLE.  SECTION
154 AND RELATED PROVISIONS OBVIOUSLY ARE INTENDED TO GRANT A PATENTEE A
MONOPOLY ONLY OVER THE UNITED STATES MARKET; THEY ARE NOT INTENDED TO
GRANT A PATENTEE THE BONUS OF A FAVORED POSITION AS A FLAGSHIP COMPANY
FREE OF AMERICAN COMPETITION IN INTERNATIONAL COMMERCE.  DEEPSOUTH,
ITSELF BARRED FROM USING ITS DEVEINING MACHINES, OR FROM INDUCING
OTHERS TO USE THEM "THROUGHOUT THE UNITED STATES," BARRED ALSO FROM
MAKING AND SELLING THE MACHINES IN THE UNITED STATES, SEEKS TO MAKE THE
PARTS OF DEVEINING MACHINES, TO SELL THEM TO FOREIGN BUYERS, AND TO
HAVE THE BUYERS ASSEMBLE THE PARTS AND USE THE MACHINES ABROAD.  /5/
ACCORDINGLY, DEEPSOUTH SEEKS JUDICIAL APPROVAL, EXPRESSED THROUGH A
MODIFICATION OR INTERPRETATION OF THE INJUNCTION AGAINST IT, FOR
CONTINUING ITS PRACTICE OF SHIPPING DEVEINING EQUIPMENT TO FOREIGN
CUSTOMERS IN THREE SEPARATE BOXES, EACH CONTAINING ONLY PARTS OF THE 1
THE COMPANY CONTENDS THAT BY THIS MEANS BOTH THE "MAKING" AND THE
"USE"  OF THE MACHINES OCCUR ABROAD AND LAITRAM'S LAWFUL MONOPOLY OVER
THE MAKING AND USE OF THE MACHINES THROUGHOUT THE UNITED STATES IS NOT
INFRINGED. 

LAITRAM COUNTERS THAT THIS COURSE OF CONDUCT IS BASED UPON A
HYPERTECHNICAL READING OF THE PATENT CODE THAT, IF TOLERATED, WILL
DEPRIVE IT OF ITS RIGHT TO THE FRUITS OF THE INVENTIVE GENIUS OF ITS
ASSIGNORS.  "THE RIGHT TO MAKE CAN SCARCELY BE MADE PLAINER BY
DEFINITION . . . ," BAUER V. O'DONNELL, 229 U.S. 1, 10 (1913). 
DEEPSOUTH IN ALL RESPECTS SAVE FINAL ASSEMBLY OF THE PARTS "MAKES" THE
INVENTION.  IT DOES SO WITH THE INTENT OF HAVING THE FOREIGN USER
EFFECT THE COMBINATION WITHOUT LAITRAM'S PERMISSION.  DEEPSOUTH SELLS
THESE COMPONENTS AS THOUGH THEY WERE THE MACHINES THEMSELVES; THE ACT
OF ASSEMBLY IS REGARDED, INDEED ADVERTISED, AS OF NO IMPORTANCE. 

THE DISTRICT COURT, FACED WITH THIS DISPUTE, NOTED THAT THREE PRIOR
CIRCUIT COURTS HAD CONSIDERED THE MEANING OF "MAKING" IN THIS CONTEXT
AND THAT ALL THREE HAD RESOLVED THE QUESTION FAVORABLY TO DEEPSOUTH'S
POSITION.  SEE HEWITT-ROBINS, INC. V. LINK-BELT CO., 371 F.2D 225 (CA7
1966); COLD METAL PROCESS CO. V. UNITED ENGINEERING & FOUNDRY CO., 235
F.2D 224 (CA3 1956); AND RADIO CORP. OF AMERICA V. ANDREA, 79 F.2D 626
(CA2 1935).  THE DISTRICT COURT HELD THAT ITS INJUNCTION SHOULD NOT BE
READ AS PROHIBITING EXPORT OF THE ELEMENTS OF A COMBINATION PATENT EVEN
WHEN THOSE ELEMENTS COULD AND PREDICTABLY WOULD BE COMBINED TO FORM THE
WHOLE. 

     "IT MAY BE URGED THAT . . . (THIS) RESULT IS NOT LOGICAL . . .

  . BUT IT IS FOUNDED ON TWIN NOTIONS THAT UNDERLIE THE PATENT

LAWS.  ONE IS THAT A COMBINATION PATENT PROTECTS ONLY THE

  COMBINATION.  THE OTHER IS THAT MONOPOLIES-- EVEN THOSE CONFERRED

  BY PATENTS-- ARE NOT VIEWED WITH FAVOR.  THESE ARE LOGIC

  ENOUGH."  310 F.SUPP.  926, 929 (1970). 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED, THUS DEPARTING
FROM THE ESTABLISHED RULES OF THE SECOND, THIRD, AND SEVENTH CIRCUITS. 
IN THE FIFTH CIRCUIT PANEL'S OPINION, THOSE COURTS THAT PREVIOUSLY
CONSIDERED THE QUESTION "WORKED THEMSELVES INTO . . . A CONCEPTUAL BOX"
BY ADOPTING "AN ARTIFICIAL, TECHNICAL CONSTRUCTION" OF THE PATENT
LAWS, A CONSTRUCTION, MOREOVER, WHICH IN THE OPINION OF THE PANEL,
"(SUBVERTED) THE CONSTITUTIONAL SCHEME OF PROMOTING "THE PROGRESS OF
SCIENCE AND USEFUL ARTS'" BY ALLOWING AN INTRUSION ON A PATENTEE'S
RIGHTS, 443 F.2D, AT 938-939, CITING U.S. CONST., ART. I, SEC. 8. 

        III 

WE DISAGREE WITH THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.  /7/
UNDER THE COMMON LAW THE INVENTOR HAD NO RIGHT TO EXCLUDE OTHERS FROM
MAKING AND USING HIS INVENTION.  IF LAITRAM HAS A RIGHT TO SUPPRESS
DEEPSOUTH'S EXPORT TRADE IT MUST BE DERIVED FROM ITS PATENT GRANT, AND
THUS FROM THE PATENT STATUTE.  /8/  WE FIND THAT 35 U.S.C. 271, THE
PROVISION OF THE PATENT LAWS ON WHICH LAITRAM RELIES, DOES NOT SUPPORT
ITS CLAIM. 

CERTAINLY IF DEEPSOUTH'S CONDUCT WERE INTENDED TO LEAD TO USE OF
PATENTED DEVEINERS INSIDE THE UNITED STATES ITS PRODUCTION AND SALES
ACTIVITY WOULD BE SUBJECT TO INJUNCTION AS AN INDUCED OR CONTRIBUTORY
INFRINGEMENT.  BUT IT IS ESTABLISHED THAT THERE CAN BE NO CONTRIBUTORY
INFRINGEMENT WITHOUT THE FACT OR INTENTION OF A DIRECT INFRINGEMENT. 
"IN A WORD, IF THERE IS NO (DIRECT) INFRINGEMENT OF A PATENT THERE CAN
BE NO CONTRIBUTORY INFRINGER."  MERCOID CORP. V. MID-CONTINENT CO., 320
U.S. 661, 677 (1944) (FRANKFURTER, J., DISSENTING ON OTHER GROUNDS). 
ARO MFG. CO. V. CONVERTIBLE TOP REPLACEMENT CO., 365 U.S. 336, 341-342
(1961), SUCCINCTLY ARTICULATES THE LAW: 

"IT IS PLAIN THAT SEC. 271(C)-- A PART OF THE PATENT CODE ENACTED IN
1952-- MADE NO CHANGE IN THE FUNDAMENTAL PRECEPT THAT THERE CAN BE NO
CONTRIBUTORY INFRINGEMENT IN THE ABSENCE OF A DIRECT INFRINGEMENT. 
THAT SECTION DEFINES CONTRIBUTORY INFRINGEMENT IN TERMS OF DIRECT
INFRINGEMENT-- NAMELY THE SALE OF A COMPONENT OF A PATENTED COMBINATION
OR MACHINE FOR USE 'IN AN INFRINGEMENT OF SUCH PATENT.'" 

THE STATUTE MAKES IT CLEAR THAT IT IS NOT AN INFRINGEMENT TO MAKE OR
USE A PATENTED PRODUCT OUTSIDE OF THE UNITED STATES.  35 U.S.C. 271. 
SEE ALSO DOWAGIAC MFG. CO. V. MINNESOTA MOLINE PLOW CO., 235 U.S. 642,
650 (1915), BROWN V. DUCHESNE, 19 HOW.  183 (1857).  THUS, IN ORDER TO
SECURE THE INJUNCTION IT SEEKS, LAITRAM MUST SHOW A SEC. 271(A) DIRECT
INFRINGEMENT BY DEEPSOUTH IN THE UNITED STATES, THAT IS, THAT DEEPSOUTH
"MAKES," "USES," OR "SELLS" THE PATENTED PRODUCT WITHIN THE BOUNDS OF
THIS COUNTRY. 

LAITRAM DOES NOT SUGGEST THAT DEEPSOUTH "USES" THE MACHINES.  ITS
ARGUMENT THAT DEEPSOUTH SELLS THE MACHINES-- BASED PRIMARILY ON
DEEPSOUTH'S SALES RHETORIC AND RELATED INDICIA SUCH AS PRICE /9/  --
CANNOT CARRY THE DAY UNLESS IT CAN BE SHOWN THAT DEEPSOUTH IS SELLING
THE "PATENTED INVENTION."  THE SALES QUESTION THUS RESOLVES ITSELF INTO
THE QUESTION OF MANUFACTURE:  DID DEEPSOUTH "MAKE" (AND THEN SELL)
SOMETHING COGNIZABLE UNDER THE PATENT LAW AS THE PATENTED INVENTION, OR
DID IT "MAKE" (AND THEN SELL) SOMETHING THAT FELL SHORT OF
INFRINGEMENT?     THE COURT OF APPEALS, BELIEVING THAT THE WORD "MAKES"
SHOULD BE ACCORDED "A CONSTRUCTION IN KEEPING WITH THE ORDINARY MEANING
OF THAT TERM," 443 F.2D, AT 938, HELD AGAINST DEEPSOUTH ON THE THEORY
THAT "MAKES" "MEANS WHAT IT ORDINARILY CONNOTES-- THE SUBSTANTIAL
MANUFACTURE OF THE CONSTITUENT PARTS OF THE MACHINE."  ID., AT 939. 
PASSING THE QUESTION OF WHETHER THIS DEFINITION MORE CLOSELY
CORRESPONDS TO THE ORDINARY MEANING OF THE TERM THAN THAT OFFERED BY
JUDGE SWAN IN ANDREA 35 YEARS EARLIER (SOMETHING IS MADE WHEN IT
REACHES THE STATE OF FINAL "OPERABLE" ASSEMBLY), WE FIND THE FIFTH
CIRCUIT'S DEFINITION UNACCEPTABLE BECAUSE IT COLLIDES HEAD ON WITH A
LINE OF DECISIONS SO FIRMLY EMBEDDED IN OUR PATENT LAW AS TO BE
UNASSAILABLE ABSENT A CONGRESSIONAL RECASTING OF THE STATUTE. 

WE CANNOT ENDORSE THE VIEW THAT THE "SUBSTANTIAL MANUFACTURE OF THE
CONSTITUENT PARTS OF (A) MACHINE" CONSTITUTES DIRECT INFRINGEMENT WHEN
WE HAVE SO OFTEN HELD THAT A COMBINATION PATENT PROTECTS ONLY AGAINST
THE OPERABLE ASSEMBLY OF THE WHOLE AND NOT THE MANUFACTURE OF ITS
PARTS.  "FOR AS WE POINTED OUT IN MERCOID V. MID-CONTINENT INVESTMENT
CO., (320 U.S. 661, 676) A PATENT ON A COMBINATION IS A PATENT ON THE
ASSEMBLED OR FUNCTIONING WHOLE, NOT ON THE SEPARATE PARTS."  MERCOID
CORP. V. MINNEAPOLIS-HONEYWELL REGULATOR CO., 320 U.S. 680, 684
(1944).  SEE ALSO LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO., 213
U.S. 301: 

     "A COMBINATION IS A UNION OF ELEMENTS, WHICH MAY BE PARTLY OLD

  AND PARTLY NEW, OR WHOLLY OLD OR WHOLLY NEW.  BUT WHETHER NEW OR

 OLD, THE COMBINATION IS A MEANS-- AN INVENTION-- DISTINCT FROM

  THEM."  ID., AT 318. 

        .          .      .          . 

"(ONE ELEMENT IS NOT THE COMBINATION.  INDEED, ALL OF THE ELEMENTS
ARE NOT.  TO BE THAT-- TO BE IDENTICAL WITH THE INVENTION OF THE
COMBINATION-- THEY MUST BE UNITED BY THE SAME OPERATIVE LAW."  ID., AT
320.  AND SEE BROWN V. GUILD, 23 WALL.  181 (1874).  IN SUM, 

"(IF ANYTHING IS SETTLED IN THE PATENT LAW, IT IS THAT THE
COMBINATION PATENT COVERS ONLY THE TOTALITY OF THE ELEMENTS IN THE
CLAIM AND THAT NO ELEMENT, SEPARATELY VIEWED, IS WITHIN THE GRANT." 
ARO MFG. CO. V. CONVERTIBLE TOP REPLACEMENT CO., 365 U.S.,AT 344. 

IT WAS THIS BASIC TENET OF THE PATENT SYSTEM THAT LED JUDGE SWAN TO
HOLD IN THE LEADING CASE, RADIO CORP. OF AMERICA V. ANDREA, 79 F.2D 626
(1935), THAT UNASSEMBLED EXPORT OF THE ELEMENTS OF AN INVENTION DID NOT
INFRINGE THE PATENT. 

"(THE) RELATIONSHIP IS THE ESSENCE OF THE PATENT. 

     " . . . NO WRONG IS DONE THE PATENTEE UNTIL THE COMBINATION IS

  FORMED.  HIS MONOPOLY DOES NOT COVER THE MANUFACTURE OR SALE OF

  SEPARATE ELEMENTS CAPABLE OF BEING, BUT NEVER ACTUALLY,

  ASSOCIATED TO FORM THE INVENTION.  ONLY WHEN SUCH ASSOCIATION IS

  MADE IS THERE A DIRECT INFRINGEMENT OF HIS MONOPOLY, AND NOT EVEN

  THEN IF IT IS DONE OUTSIDE THE TERRITORY FOR WHICH THE MONOPOLY

  WAS GRANTED."  ID., AT 628. 

SEE ALSO COLD METAL PROCESS CO. V. UNITED ENGINEERING & FOUNDRY CO.,
235 F.2D, AT 230 ("WE ARE IN FULL ACCORD WITH THE RULE THUS LAID DOWN
IN THE ANDREA CASE AND WE THINK THAT THE MASTER AND THE DISTRICT COURT
WERE RIGHT IN APPLYING IT HERE"); HEWITT-ROBINS, INC. V. LINK BELT CO.,
371 F.2D, AT 229 (TO THE SAME EFFECT). 

WE REAFFIRM THIS CONCLUSION TODAY. 

        IV 

IT IS SAID THAT THIS CONCLUSION IS DERIVED FROM TOO NARROW AND
TECHNICAL AN INTERPRETATION OF THE STATUTE, AND THAT THIS COURT SHOULD
FOCUS ON THE CONSTITUTIONAL MANDATE 

     "(TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY

  SECURING FOR LIMITED TIMES TO AUTHORS AND INVENTORS THE EXCLUSIVE

  RIGHT TO THEIR RESPECTIVE WRITINGS AND DISCOVERIES . . . ,"  ART.

I, SEC. 8,

AND CONSTRUE THE STATUTE IN A MANNER THAT WOULD, ALLEGEDLY, BETTER
REFLECT THE POLICY OF THE FRAMERS. 

WE CANNOT ACCEPT THIS ARGUMENT.  THE DIRECTION OF ART. I IS THAT
CONGRESS SHALL HAVE THE POWER TO PROMOTE THE PROGRESS OF SCIENCE AND
THE USEFUL ARTS.  WHEN, AS HERE, THE CONSTITUTION IS PERMISSIVE, THE
SIGN OF HOW FAR CONGRESS HAS CHOSEN TO GO CAN COME ONLY FROM CONGRESS. 
WE ARE HERE CONSTRUING THE PROVISIONS OF A STATUTE PASSED IN 1952.  THE
PREVAILING LAW IN THIS AND OTHER COURTS AS TO WHAT IS NECESSARY TO SHOW
A PATENTABLE INVENTION WHEN A COMBINATION OF OLD ELEMENTS IS CLAIMED
WAS CLEARLY EVIDENT FROM THE CASES WHEN THE ACT WAS PASSED; AND AT THAT
TIME ANDREA, REPRESENTING A SPECIFIC APPLICATION OF THE LAW OF
INFRINGEMENT WITH RESPECT TO THE EXPORT OF ELEMENTS OF A COMBINATION
PATENT, WAS 17 YEARS OLD.  WHEN CONGRESS DRAFTED SEC. 271, IT GAVE NO
INDICATION THAT IT DESIRED TO CHANGE EITHER THE LAW OF COMBINATION
PATENTS AS RELEVANT HERE OR THE RULING OF ANDREA.  /10/  NOR HAS IT ON
ANY MORE RECENT OCCASION INDICATED THAT IT WANTED THE PATENT PRIVILEGE
TO RUN FARTHER THAN IT WAS UNDERSTOOD TO RUN FOR 35 YEARS PRIOR TO THE
ACTION OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

MOREOVER, WE MUST CONSIDER PETITIONER'S CLAIM IN LIGHT OF THIS
NATION'S HISTORICAL ANTIPATHY TO MONOPOLY /11/  AND OF REPEATED
CONGRESSIONAL EFFORTS TO PRESERVE AND FOSTER COMPETITION.  AS THIS
COURT RECENTLY SAID WITHOUT DISSENT: 

"(IN REWARDING USEFUL INVENTION, THE 'RIGHTS AND WELFARE OF THE
COMMUNITY MUST BE FAIRLY DEALT WITH AND EFFECTUALLY GUARDED.'  KENDALL
V. WINSOR, 21 HOW.  322, 329 (1859).  TO THAT END THE PREREQUISITES TO
OBTAINING A PATENT ARE STRICTLY OBSERVED, AND WHEN THE PATENT HAS
ISSUED THE LIMITATIONS ON ITS EXERCISE ARE EQUALLY STRICTLY ENFORCED." 
SEARS, ROEBUCK & CO. V. STIFFEL CO., 376 U.S. 225, 239 (1964).  IT
FOLLOWS THAT WE SHOULD NOT EXPAND PATENT RIGHTS BY OVERRULING OR
MODIFYING OUR PRIOR CASES CONSTRUING THE PATENT STATUTES, UNLESS THE
ARGUMENT FOR EXPANSION OF PRIVILEGE IS BASED ON MORE THAN MERE
INFERENCE FROM AMBIGUOUS STATUTORY LANGUAGE.  WE WOULD REQUIRE A CLEAR
AND CERTAIN SIGNAL FROM CONGRESS BEFORE APPROVING THE POSITION OF A
LITIGANT WHO, AS RESPONDENT HERE, ARGUES THAT THE BEACHHEAD OF
PRIVILEGE IS WIDER, AND THE AREA OF PUBLIC USE NARROWER, THAN COURTS
HAD PREVIOUSLY THOUGHT.  NO SUCH SIGNAL LEGITIMIZES RESPONDENT'S
POSITION IN THIS LITIGATION. 

IN CONCLUSION, WE NOTE THAT WHAT IS AT STAKE HERE IS THE RIGHT OF
AMERICAN COMPANIES TO COMPETE WITH AN AMERICAN PATENT HOLDER IN FOREIGN
MARKETS.  OUR PATENT SYSTEM MAKES NO CLAIM TO EXTRATERRITORIAL EFFECT;
"THESE ACTS OF CONGRESS DO NOT, AND WERE NOT INTENDED TO, OPERATE
BEYOND THE LIMITS OF THE UNITED STATES," BROWN V. DUCHESNE, 19 HOW.,AT
195; AND WE CORRESPONDINGLY REJECT THE CLAIMS OF OTHERS TO SUCH CONTROL
OVER OUR MARKETS.  CF. BOESCH V. GRAFF, 133 U.S. 697, 703 (1890).  TO
THE DEGREE THAT THE INVENTOR NEEDS PROTECTION IN MARKETS OTHER THAN
THOSE OF THIS COUNTRY, THE WORDING OF 35 U.S.C. 154 AND 271 REVEALS A
CONGRESSIONAL INTENT TO HAVE HIM SEEK IT ABROAD THROUGH PATENTS SECURED
IN COUNTRIES WHERE HIS GOODS ARE BEING USED.  RESPONDENT HOLDS FOREIGN
PATENTS; IT DOES NOT ADEQUATELY EXPLAIN WHY IT DOES NOT AVAIL ITSELF OF
THEM. 

        V 

IN SUM:  THE CASE AND STATUTORY LAW RESOLVES THIS CASE AGAINST THE
RESPONDENT.  WHEN SO MANY COURTS HAVE SO OFTEN HELD WHAT APPEARS SO
EVIDENT-- A COMBINATION PATENT CAN BE INFRINGED ONLY BY COMBINATION--
WE ARE NOT PREPARED TO BREAK THE MOLD AND BEGIN ANEW.  AND WERE THE
MATTER NOT SO RESOLVED, WE WOULD STILL INSIST ON A CLEAR CONGRESSIONAL
INDICATION OF INTENT TO EXTEND THE PATENT PRIVILEGE BEFORE WE COULD
RECOGNIZE THE MONOPOLY HERE CLAIMED.  SUCH AN INDICATION IS LACKING. 
ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
IS REVERSED AND THE CASE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 

/1/  LAITRAM CORP. V. DEEPSOUTH PACKING CO., 301 F.SUPP.  1037, 1040
(1969). 

/2/  THIS PATENT EXPIRED SHORTLY BEFORE ARGUMENT IN THIS COURT AND
IS THEREFORE NOT RELEVANT TO LAITRAM'S CLAIM FOR INJUNCTIVE RELIEF.  IT
IS DESCRIBED, HOWEVER, BECAUSE LAITRAM CLAIMS DAMAGES FOR DEEPSOUTH'S
ASSERTED PAST EXPORTATION OF THE PARTS OF THIS MACHINE. 

/3/  THE MACHINES WERE DEVELOPED BY TWO BROTHERS WHO ARE NOW
PRESIDENT AND VICE-PRESIDENT OF THE LAITRAM CORP. THE PATENTS ARE IN
THEIR NAMES, BUT HAVE BEEN ASSIGNED TO THE CORPORATION. 

/4/  THE DISTRICT COURT WROTE: 

"DEFENDANT URGES THAT THE (1958) PATENT IS INVALID AS AGGREGATIVE,
ANTICIPATED BY THE PRIOR ART, OBVIOUS, DESCRIBED IN FUNCTIONAL
LANGUAGE, OVERBROAD, AND INDEFINITE.  WHILE IT IS CLEAR THAT THE
ELEMENTS IN THE . . . PATENT, ESPECIALLY THE PUNCH LIP MATERIAL, HAD
BEEN AVAILABLE FOR A CONSIDERABLE PERIOD OF TIME, WHEN COMBINED THEY CO
ACT IN SUCH A MANNER TO PERFORM A NEW FUNCTION AND PRODUCE NEW
RESULTS."  301 F.SUPP.,AT 1063. 

/5/  DEEPSOUTH IS ENTIRELY STRAIGHTFORWARD IN INDICATING THAT ITS
COURSE OF CONDUCT IS MOTIVATED BY A DESIRE TO AVOID PATENT
INFRINGEMENT.  ITS PRESIDENT WROTE A BRAZILIAN CUSTOMER: 

"WE ARE HANDICAPPED BY A DECISION AGAINST US IN THE UNITED STATES. 
THIS WAS A VERY TECHNICAL DECISION AND WE CAN MANUFACTURE THE ENTIRE
MACHINE WITHOUT ANY COMPLICATION IN THE UNITED STATES, WITH THE
EXCEPTION THAT THERE ARE TWO PARTS THAT MUST NOT BE ASSEMBLED IN THE
UNITED STATES, BUT ASSEMBLED AFTER THE MACHINE ARRIVES IN BRAZIL." 

QUOTED IN LAITRAM CORP. V. DEEPSOUTH PACKING CO., 443 F.2D 928, 938
(CA5 1971). 

/6/  AS SHIPPED, DEEPSOUTH'S TUMBLER CONTAINS A DEVEINING BELT
DIFFERENT FROM LAITRAM'S SUPPORT MEMBER AND LIP.  BUT THE LAITRAM
ELEMENTS ARE INCLUDED IN A SEPARATE BOX AND THE DEEPSOUTH TUMBLER IS
MADE TO ACCOMMODATE THE LAITRAM ELEMENTS.  THE RECORD SHOWS THAT MANY
CUSTOMERS WILL USE THE MACHINE WITH THE LAITRAM PARTS. 

/7/  FOR SIMPLICITY'S SAKE, WE, LIKE THE LOWER COURTS, WILL DISCUSS
ONLY DEEPSOUTH'S CLAIM AS TO PERMISSIBLE FUTURE CONDUCT.  IT IS
OBVIOUS, HOWEVER, THAT WHAT WE SAY AS TO THE SCOPE OF THE INJUNCTION IN
LAITRAM'S FAVOR APPLIES ALSO TO THE CALCULATION OF DAMAGES THAT LAITRAM
MAY RECOVER. 

/8/  "BUT THE RIGHT OF PROPERTY WHICH A PATENTEE HAS IN HIS
INVENTION, AND HIS RIGHT TO ITS EXCLUSIVE USE, IS DERIVED ALTOGETHER
FROM THESE STATUTORY PROVISIONS; AND THIS COURT (HAS) ALWAYS HELD THAT
AN INVENTOR HAS NO RIGHT OF PROPERTY IN HIS INVENTION, UPON WHICH HE
CAN MAINTAIN A SUIT, UNLESS HE OBTAINS A PATENT FOR IT, ACCORDING TO
THE ACTS OF CONGRESS; AND THAT HIS RIGHTS ARE TO BE REGULATED AND
MEASURED BY THESE LAWS, AND CANNOT GO BEYOND THEM."  BROWN V. DUCHESNE,
19 HOW.  183, 195 (1857). 

/9/  DEEPSOUTH SOLD THE LESS THAN COMPLETELY ASSEMBLED MACHINE FOR
THE SAME PRICE AS IT HAD SOLD FULLY ASSEMBLED MACHINES.  ITS
ADVERTISEMENTS, CORRESPONDENCE, AND INVOICES FREQUENTLY REFERRED TO A
"MACHINE," RATHER THAN TO A KIT OR UNASSEMBLED PARTS.  SEE BRIEF FOR
RESPONDENT 8-11. 

/10/  WHEN SEC. 271 WAS DRAFTED AND SUBMITTED TO THE SENATE IN 1952,
SENATOR SALTONSTALL ASKED: "DOES THE BILL CHANGE THE LAW IN ANY WAY OR
ONLY CODIFY THE PRESENT PATENT LAWS?"  SENATOR MCCARRAN, CHAIRMAN OF
THE JUDICIARY COMMITTEE, RESPONDED:  "IT CODIFIES THE PRESENT PATENT
LAWS."  98 CONG.REC.  9323. 

/11/  SEE THE DISCUSSION IN GRAHAM V. JOHN DEERE CO., 383 U.S. 1, 7
ET SEQ. (1966). 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
POWELL, AND MR. JUSTICE REHNQUIST JOIN, DISSENTING. 

BECAUSE OUR GRANT OF CERTIORARI WAS LIMITED, 404 U.S. 1037 (1972),
THE CUSTOMARILY PRESENTED ISSUES OF PATENT VALIDITY AND INFRINGEMENT
ARE NOT BEFORE US IN THIS CASE.  I NECESSARILY ACCEPT, THEREFORE, THE
CONCLUSION THAT THE LAITRAM PATENTS ARE VALID AND THAT THE DEEPSOUTH
DEVEINING MACHINE, WHEN MANUFACTURED AND ASSEMBLED IN THE UNITED
STATES, IS AN INFRINGEMENT.  THE COURT SO CONCEDES.  THE COURT,
HOWEVER, DENIES LAITRAM PATENT LAW PROTECTION AGAINST DEEPSOUTH'S
MANUFACTURE AND ASSEMBLY WHEN THE MERE ASSEMBLY IS EFFECTED ABROAD.  IT
DOES SO ON THE THEORY THAT THERE THEN IS NO "MAKING" OF THE PATENTED
INVENTION IN THE UNITED STATES EVEN THOUGH EVERY PART IS MADE HERE AND
DEEPSOUTH SHIPS ALL THE PARTS IN RESPONSE TO AN ORDER FROM ABROAD. 

WITH ALL RESPECT, THIS SEEMS TO ME TO BE TOO NARROW A READING OF 35
U.S.C. 154 AND 271(A).  IN ADDITION, THE RESULT IS UNDULY TO REWARD THE
ARTFUL COMPETITOR WHO USES ANOTHER'S INVENTION IN ITS ENTIRETY AND WHO
SEEKS TO PROFIT THEREBY.  DEEPSOUTH MAY BE ADMISSIVE AND CANDID OR, AS
THE COURT DESCRIBES IT, ANTE, AT 523 N. 5, "STRAIGHTFORWARD," IN ITS
"SALES RHETORIC," ANTE, AT 527, BUT FOR ME THAT RHETORIC REVEALS THE
VERY INIQUITOUS AND EVASIVE NATURE OF DEEPSOUTH'S OPERATIONS.  I DO NOT
SEE HOW ONE CAN ESCAPE THE CONCLUSION THAT THE DEEPSOUTH MACHINE WAS
MADE IN THE UNITED STATES, WITHIN THE MEANING OF THE PROTECTIVE
LANGUAGE OF SECS. 154 AND 271(A).  THE SITUATION, PERHAPS, WOULD BE
DIFFERENT WERE PARTS, OR EVEN ONLY ONE VITAL PART, MANUFACTURED
ABROAD.  HERE EVERYTHING WAS ACCOMPLISHED IN THIS COUNTRY EXCEPT
PUTTING THE PIECES TOGETHER AS DIRECTED (AN OPERATION THAT, AS
DEEPSOUTH REPRESENTED TO ITS BRAZILIAN PROSPECT, WOULD TAKE "LESS THAN
ONE HOUR"), ALL MUCH AS THE FOND FATHER DOES WITH HIS LITTLE DAUGHTER'S
DOLL HOUSE ON CHRISTMAS EVE.  TO SAY THAT SUCH ASSEMBLY, ACCOMPLISHED
ABROAD, IS NOT THE PROHIBITED COMBINATION AND THAT IT AVOIDS THE
RESTRICTIONS OF OUR PATENT LAW, IS A BIT TOO MUCH FOR ME.  THE COURT
HAS OPENED THE WAY TO DENY THE HOLDER OF THE UNITED STATES COMBINATION
PATENT THE BENEFITS OF HIS INVENTION WITH RESPECT TO SALES TO FOREIGN
PURCHASERS. 

I ALSO SUSPECT THE COURT SUBSTANTIALLY OVERSTATES WHEN IT DESCRIBES
RADIO CORP. OF AMERICA V. ANDREA, 79 F.2D 626 (CA2 1935), AS A "LEADING
CASE," ANTE, AT 529, AND WHEN IT IMPUTES TO CONGRESS, IN DRAFTING THE
1952 STATUTE, AN AWARENESS OF ANDREA'S "PREVAILING LAW," ANTE, AT 530. 
ANDREA WAS SERIOUSLY UNDERMINED ONLY TWO YEARS AFTER ITS PROMULGATION,
WHEN THE COURT OF APPEALS MODIFIED ITS DECREE ON A SECOND REVIEW. 
RADIO CORP. OF AMERICA V. ANDREA, 90 F.2D 612 (CA2 1937).  ITS AUTHOR,
JUDGE SWAN HIMSELF, DISSENTING IN PART FROM THE 1937 DECISION, SOMEWHAT
RUEFULLY ALLOWED THAT HIS COURT WAS OVERRULING THE EARLIER DECISION. 
ID., AT 615.  I THEREFORE WOULD FOLLOW THE FIFTH CIRCUIT'S OPINION IN
THE PRESENT CASE, 443 F.2D 936 (1971), AND WOULD REJECT THE REASONING
IN THE OLDER AND WEAKENED ANDREA OPINION AND IN THE THIRD AND SEVENTH
CIRCUIT OPINIONS THAT MERELY FOLLOW IT.     BY A PROCESS OF ONLY THE
MOST RIGID CONSTRUCTION, THE COURT, BY ITS DECISION TODAY, FULFILLS
WHAT JUDGE CLARK, IN HIS ABLE OPINION FOR THE FIFTH CIRCUIT,
DISTRESSINGLY FORECAST: 

"TO HOLD OTHERWISE (AS THE COURT DOES TODAY) WOULD SUBVERT THE
CONSTITUTIONAL SCHEME OF PROMOTING 'THE PROGRESS OF SCIENCE AND USEFUL
ARTS, BY SECURING FOR LIMITED TIMES TO AUTHORS AND INVENTORS THE
EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS AND DISCOVERIES.'  U.S.
CONST., ART. I SEC. 8 CL. 8.  IT WOULD ALLOW AN INFRINGER TO SET UP
SHOP NEXT DOOR TO A PATENT-PROTECTED INVENTOR WHOSE PRODUCT ENJOYS A
SUBSTANTIAL FOREIGN MARKET AND DEPRIVE HIM OF THIS VALUABLE BUSINESS. 
IF THIS CONSTITUTIONAL PROTECTION IS TO BE FULLY EFFECTUATED, IT MUST
EXTEND TO AN INFRINGER WHO MANUFACTURES IN THE UNITED STATES AND THEN
CAPTURES THE FOREIGN MARKETS FROM THE PATENTEE.  THE CONSTITUTIONAL
MANDATE CANNOT BE LIMITED TO JUST MANUFACTURING AND SELLING WITHIN THE
UNITED STATES.  THE INFRINGER WOULD THEN BE ALLOWED TO REAP THE FRUITS
OF THE AMERICAN ECONOMY-- TECHNOLOGY, LABOR, MATERIALS, ETC.-- BUT
WOULD NOT BE SUBJECT TO THE RESPONSIBILITIES OF THE AMERICAN PATENT
LAWS.  WE CANNOT PERMIT AN INFRINGER TO ENJOY THESE BENEFITS AND THEN
BE ALLOWED TO STRIP AWAY A PORTION OF THE PATENTEE'S PROTECTION."  443
F.2D, AT 939. 

I SHARE THE FIFTH CIRCUIT'S CONCERN AND I THEREFORE DISSENT. 

HAROLD J. BIRCH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE C. EMMETT PUGH AND WILLIAM W. BECKETT. 

GUY W. SHOUP ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

EDWARD S. IRONS AND MARY HELEN SEARS FILED A BRIEF AS AMICI CURIAE
URGING REVERSAL. 
..END :







JEFFERSON V. HACKNEY, 406 U.S. 535 


       JEFFERSON ET AL. V. HACKNEY, COMMISSIONER OF PUBLIC WELFARE,

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF TEXAS

        NO. 60-5064.  ARGUED FEBRUARY 22, 1972-- DECIDED MAY 30,

           1972 


APPELLANTS, RECIPIENTS OF AID TO FAMILIES WITH DEPENDENT CHILDREN
(AFDC), CHALLENGE THE SYSTEM WHEREBY TEXAS, IN ORDER TO ALLOCATE ITS
FIXED POOL OF WELFARE MONEY AMONG PERSONS WITH ACKNOWLEDGED NEED,
APPLIES A PERCENTAGE REDUCTION FACTOR TO ARRIVE AT A REDUCED STANDARD
OF NEED, THE FACTOR BEING LOWER FOR AFDC THAN FOR OTHER CATEGORICAL
ASSISTANCE PROGRAMS.  APPELLANTS ASSERT THAT THE STATE'S METHOD OF
APPLYING THIS FACTOR TO RECIPIENTS WITH OUTSIDE INCOME CONTRAVENES SEC.
402(A)(23) OF THE SOCIAL SECURITY ACT, WHICH REQUIRED ADJUSTMENT, BY
JULY 1, 1969, OF "AMOUNTS USED . . . TO DETERMINE THE NEEDS OF
INDIVIDUALS" TO REFLECT INCREASES IN LIVING COSTS, BECAUSE THIS METHOD
DOES NOT INCREASE THE WELFARE ROLLS TO THE SAME EXTENT AS WOULD AN
ALTERNATIVE PROCEDURE USED BY SOME OTHER STATES.  THEY ALSO MAKE AN
EQUAL PROTECTION CLAIM ON THE GROUNDS THAT THE DISTINCTION BETWEEN THE
AID PROGRAMS IS NOT RATIONAL AND THAT THE TEXAS SYSTEM RACIALLY
DISCRIMINATES AGAINST THE PROPORTIONATELY LARGER NUMBER OF MINORITY
GROUPS IN AFDC THAN IN THE OTHER PROGRAMS.  HELD: 

1.  THE TEXAS SCHEME DOES NOT CONTRAVENE SEC. 402(A)(23) OF THE
SOCIAL SECURITY ACT, WHICH DOES NOT REQUIRE USE OF A COMPUTATION
PROCEDURE THAT MAXIMIZES INDIVIDUAL ELIGIBILITY FOR SUBSIDIARY
BENEFITS.  PP. 539-545. 

2.  THE CHALLENGED SYSTEM DOES NOT VIOLATE THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 545-551. 

     (A) THE FACT THAT THERE ARE MORE MEMBERS OF MINORITY GROUPS IN

  THE AFDC PROGRAM THAN IN OTHER CATEGORIES DOES NOT INDICATE

  RACIAL DISCRIMINATION, ABSENT ANY PROOF OF RACIAL MOTIVATION IN

  THE TEXAS SCHEME.  THERE WAS NO SUCH PROOF HERE.  PP. 547-549. 

 (B) TEXAS' DECISION TO PROVIDE SOMEWHAT LOWER WELFARE BENEFITS

  FOR AFDC RECIPIENTS THAN FOR THE AGED AND INFIRM WHO ARE IN OTHER

  CATEGORIES IS NOT INVIDIOUS OR IRRATIONAL, AND THERE IS NO

  CONSTITUTIONAL OR STATUTORY REQUIREMENT THAT RELIEF CATEGORIES BE

  TREATED EXACTLY ALIKE.  PP. 549-551. 

AFFIRMED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  STEWART, J.,
FILED A STATEMENT JOINING IN PART III OF THE COURT'S OPINION, POST, P.
551.  DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, J.,
JOINED, POST.  P. 551.  MARSHALL, J., FILED A DISSENTING OPINION, IN
WHICH BRENNAN, J., JOINED, AND IN PART I OF WHICH STEWART, J., JOINED,
POST, P. 558. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

APPELLANTS IN THIS CASE CHALLENGE CERTAIN COMPUTATION PROCEDURES
THAT THE STATE OF TEXAS USES IN ITS FEDERALLY ASSISTED WELFARE
PROGRAM.  BELIEVING THAT NEITHER THE CONSTITUTION NOR THE FEDERAL
WELFARE STATUTE PROHIBITS THE STATE FROM ADOPTING THESE POLICIES, WE
AFFIRM THE JUDGMENT OF THE THREE-JUDGE COURT BELOW UPHOLDING THE STATE
PROCEDURES. 

        I 

APPELLANTS ARE TEXAS RECIPIENTS OF AID TO FAMILIES WITH DEPARTMENT
CHILDREN (AFDC).  THEY BROUGHT TWO CLASS ACTIONS, WHICH WERE
CONSOLIDATED IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS, SEEKING INJUNCTIVE AND DECLARATORY RELIEF AGAINST
STATE WELFARE OFFICIALS.  A THREE-JUDGE COURT WAS CONVENED PURSUANT TO
28 U.S.C. 2281. 

THE TEXAS STATE CONSTITUTION PROVIDES A CEILING ON THE AMOUNT THE
STATE CAN SPEND ON WELFARE ASSISTANCE GRANTS.  /1/  IN ORDER TO
ALLOCATE THIS FIXED POOL OF WELFARE MONEY AMONG THE NUMEROUS
INDIVIDUALS WITH ACKNOWLEDGED NEED, THE STATE HAS ADOPTED A SYSTEM OF
PERCENTAGE GRANTS.  UNDER THIS SYSTEM, THE STATE FIRST COMPUTES THE
MONETARY NEEDS OF INDIVIDUALS ELIGIBLE FOR RELIEF UNDER EACH OF THE
FEDERALLY AIDED CATEGORICAL ASSISTANCE PROGRAMS.  /2/  THEN, SINCE THE
CONSTITUTIONAL CEILING ON WELFARE IS INSUFFICIENT TO BRING EACH
RECIPIENT UP TO THIS FULL STANDARD OF NEED, THE STATE APPLIES A
PERCENTAGE REDUCTION FACTOR /3/  IN ORDER TO ARRIVE AT A REDUCED
STANDARD OF NEED IN EACH CATEGORY THAT THE STATE CAN GUARANTEE. 

APPELLANTS CHALLENGE THE CONSTITUTIONALITY OF APPLYING A LOWER
PERCENTAGE REDUCTION FACTOR TO AFDC THAN TO THE OTHER CATEGORICAL
ASSISTANCE PROGRAMS.  THEY CLAIM A VIOLATION OF EQUAL PROTECTION
BECAUSE THE PROPORTION OF AFDC RECIPIENTS WHO ARE BLACK OR MEXICAN
AMERICAN IS HIGHER THAN THE PROPORTION OF THE AGED, BLIND, OR DISABLED
WELFARE RECIPIENTS WHO FALL WITHIN THESE MINORITY GROUPS.  APPELLANTS
CLAIM THAT THE DISTINCTION BETWEEN THE PROGRAMS IS NOT RATIONALLY
RELATED TO THE PURPOSES OF THE SOCIAL SECURITY ACT, AND VIOLATES THE
FOURTEENTH AMENDMENT FOR THAT REASON AS WELL.  IN THEIR ORIGINAL
COMPLAINT, APPELLANTS ALSO ARGUED THAT ANY PERCENTAGE-REDUCTION SYSTEM
VIOLATED SEC. 402(A)(23) OF THE SOCIAL SECURITY ACT OF 1935, AS
AMENDED, 81 STAT. 898, 42 U.S.C. 602(A)(23), WHICH REQUIRED EACH STATE
TO MAKE CERTAIN COST-OF-LIVING ADJUSTMENTS TO ITS STANDARD OF NEED. 

THE THREE-JUDGE COURT REJECTED APPELLANTS' CONSTITUTIONAL ARGUMENTS,
FINDING THAT THE TEXAS SYSTEM IS NEITHER RACIALLY DISCRIMINATORY NOR
UNCONSTITUTIONALLY ARBITRARY.  THE COURT DID, HOWEVER, ACCEPT THE
STATUTORY CLAIM THAT TEXAS' PERCENTAGE REDUCTIONS IN THE AFDC PROGRAM
VIOLATE THE CONGRESSIONAL COMMAND OF SEC. 402(A)(23).  304 F.SUPP. 
1332 (ND TEX. 1969). 

SUBSEQUENT TO THAT JUDGMENT, THIS COURT DECIDED ROSADO V. WYMAN, 397
U.S. 397 (1970).  ROSADO HELD THAT, ALTHOUGH SEC. 402(A)(23) REQUIRED
STATES TO MAKE COST-OF-LIVING ADJUSTMENTS IN THEIR STANDARD-OF-NEED
CALCULATIONS, IT DID NOT PROHIBIT USE OF PERCENTAGE-REDUCTION SYSTEMS
THAT LIMITED THE AMOUNT OF WELFARE ASSISTANCE ACTUALLY PAID.  397
U.S.,AT 413.  THIS COURT THEN VACATED AND REMANDED THE FIRST JEFFERSON
JUDGMENT FOR FURTHER PROCEEDINGS CONSISTENT WITH ROSADO.  397 U.S. 821
(1970). 

ON REMAND, THE DISTRICT COURT ENTERED A NEW JUDGMENT, DENYING ALL
RELIEF.  THEN, IN A MOTION TO AMEND THE JUDGMENT, APPELLANTS RAISED A
NEW STATUTORY CLAIM.  THEY ARGUED FOR THE FIRST TIME THAT ALTHOUGH A
PERCENTAGE-REDUCTION SYSTEM MAY BE CONSISTENT WITH THE STATUTE, THE
SPECIFIC PROCEDURES THAT TEXAS USES FOR COMPUTING THAT REDUCTION
VIOLATE THE CONGRESSIONAL ENACTMENT.  THE DISTRICT COURT REJECTED THIS
ARGUMENT AND DENIED WITHOUT OPINION APPELLANTS' MOTION TO AMEND THE
JUDGMENT.  THIS APPEAL UNDER 28 U.S.C. 1253 THEN FOLLOWED, AND WE NOTED
PROBABLE JURISDICTION.  404 U.S. 820 (1971). 

        II 

APPELLANTS' STATUTORY ARGUMENT RELATES TO THE METHOD THAT THE STATE
USES TO COMPUTE THE PERCENTAGE REDUCTION WHEN THE RECIPIENT ALSO HAS
SOME OUTSIDE INCOME.  TEXAS, LIKE MANY OTHER STATES, /4/  FIRST APPLIES
THE PERCENTAGE-REDUCTION FACTOR TO THE RECIPIENT'S STANDARD OF NEED,
THUS ARRIVING AT A REDUCED STANDARD OF NEED THAT THE STATE CAN
GUARANTEE FOR EACH RECIPIENT WITHIN THE PRESENT BUDGETARY RESTRAINTS. 
AFTER COMPUTING THIS REDUCED STANDARD OF NEED, THE STATE THEN SUBTRACTS
ANY NON-EXEMPT /5/  INCOME IN ORDER TO ARRIVE AT THE LEVEL OF BENEFITS
THAT THE RECIPIENT NEEDS IN ORDER TO REACH HIS REDUCED STANDARD OF
NEED.  THIS IS THE AMOUNT OF WELFARE THE RECIPIENT IS GIVEN. 

UNDER AN ALTERNATIVE SYSTEM USED BY OTHER STATES, THE ORDER OF
COMPUTATION IS REVERSED.  FIRST, THE OUTSIDE INCOME IS SUBTRACTED FROM
THE STANDARD OF NEED, IN ORDER TO DETERMINE THE RECIPIENT'S "UNMET
NEED."  THEN, THE PERCENTAGE-REDUCTION FACTOR IS APPLIED TO THE UNMET
NEED, IN ORDER TO DETERMINE THE WELFARE BENEFITS PAYABLE. 

THE TWO SYSTEMS OF ACCOUNTING FOR OUTSIDE INCOME YIELD DIFFERENT
RESULTS.  /6/  UNDER THE TEXAS SYSTEM ALL WELFARE RECIPIENTS WITH THE
SAME NEEDS HAVE THE SAME AMOUNT OF MONEY AVAILABLE EACH MONTH, WHETHER
OR NOT THEY HAVE OUTSIDE INCOME.  SINCE THE OUTSIDE INCOME IS APPLIED
DOLLAR FOR DOLLAR TO THE REDUCED STANDARD OF NEED, WHICH THE WELFARE
DEPARTMENT WOULD OTHERWISE PAY IN FULL, IT DOES NOT RESULT IN A NET
IMPROVEMENT IN THE FINANCIAL POSITION OF THE RECIPIENT.  UNDER THE
ALTERNATIVE SYSTEM, ON THE OTHER HAND, ANY WELFARE RECIPIENT WHO ALSO
HAS OUTSIDE INCOME IS IN A BETTER FINANCIAL POSITION BECAUSE OF IT.
THE REASON IS THAT THE PERCENTAGE-REDUCTION FACTOR THERE IS APPLIED TO
THE "UNMET NEED," AFTER THE INCOME HAS BEEN SUBTRACTED.  THUS, IN
EFFECT, THE INCOME-EARNING RECIPIENT IS ABLE TO "KEEP" ALL HIS INCOME,
WHILE HE RECEIVES ONLY A PERCENTAGE OF THE REMAINDER OF HIS STANDARD OF
NEED.  /7/ 

EACH OF THE TWO SYSTEMS HAS CERTAIN ADVANTAGES.  APPELLANTS NOTE
THAT UNDER THE ALTERNATIVE SYSTEM THERE IS A FINANCIAL INCENTIVE FOR
WELFARE RECIPIENTS TO OBTAIN OUTSIDE INCOME.  THE TEXAS COMPUTATION
METHOD ELIMINATES ANY SUCH FINANCIAL INCENTIVE, SO LONG AS THE OUTSIDE
INCOME REMAINS LESS THAN THE RECIPIENT'S REDUCED STANDARD OF NEED.  /8/
HOWEVER, SINCE TEXAS' POOL OF AVAILABLE WELFARE FUNDS IS FIXED, ANY
INCREASE IN BENEFITS PAID TO THE WORKING POOR WOULD HAVE TO BE OFFSET
BY REDUCTIONS ELSEWHERE.  THUS, IF TEXAS WERE TO SWITCH TO THE
ALTERNATIVE SYSTEM OF RECOGNIZING OUTSIDE INCOME, IT WOULD BE FORCED TO
LOWER ITS PERCENTAGE-REDUCTION FACTOR, IN ORDER TO KEEP DOWN ITS
WELFARE BUDGET.  LOWERING THE PERCENTAGE WOULD RESULT IN LESS MONEY FOR
THOSE WHO NEED THE WELFARE BENEFITS THE MOST-- THOSE WITH NO OUTSIDE
INCOME-- AND THE STATE HAS BEEN UNWILLING TO DO THIS. 

STRIKING THE PROPER BALANCE BETWEEN THESE COMPETING POLICY
CONSIDERATIONS IS, OF COURSE, NOT THE FUNCTION OF THIS COURT.  "THERE
IS NO QUESTION THAT STATES HAVE CONSIDERABLE LATITUDE IN ALLOCATING
THEIR AFDC RESOURCES, SINCE EACH STATE IS FREE TO SET ITS OWN STANDARD
OF NEED AND TO DETERMINE THE LEVEL OF BENEFITS BY THE AMOUNT OF FUNDS
IT DEVOTES TO THE PROGRAM."  KING V. SMITH, 392 U.S. 309, 318-319
(1968) (FOOTNOTES OMITTED).  /9/  SO LONG AS THE STATE'S ACTIONS ARE
NOT IN VIOLATION OF ANY SPECIFIC PROVISION OF THE CONSTITUTION OR THE
SOCIAL SECURITY ACT, APPELLANTS' POLICY ARGUMENTS MUST BE ADDRESSED TO
A DIFFERENT FORUM. 

APPELLANTS ASSERT, HOWEVER, THAT THE TEXAS COMPUTATION PROCEDURES
ARE CONTRARY TO SEC. 402(A)(23): 

     "(A) A STATE PLAN FOR AID AND SERVICES TO NEEDY FAMILIES WITH
CHILDREN MUST

        .          .  .          . 

"(23) PROVIDE THAT BY JULY 1, 1969, THE AMOUNTS USED BY THE STATE TO
DETERMINE THE NEEDS OF INDIVIDUALS WILL HAVE BEEN ADJUSTED TO REFLECT
FULLY CHANGES IN LIVING COSTS SINCE SUCH AMOUNTS WERE ESTABLISHED, AND
ANY MAXIMUMS THAT THE STATE IMPOSES ON THE AMOUNT OF AID PAID TO
FAMILIES WILL HAVE BEEN PROPORTIONATELY ADJUSTED."  RECOGNIZING THAT
THIS STATUTORY LANGUAGE, BY ITS TERMS, HARDLY PROVIDES MUCH SUPPORT FOR
THEIR THEORY, APPELLANTS SEEK TO RELY ON WHAT THEY PERCEIVE TO HAVE
BEEN THE BROAD CONGRESSIONAL PURPOSE IN ENACTING THE PROVISION. 

IN ROSADO V. WYMAN, SUPRA, THE COURT REVIEWED THE HISTORY OF THIS
IN THE AFDC PROGRAM.  ID., AT 414 AND N. 17.  AFDC HAS LONG BEEN
REFERRED TO AS A "SCHEME OF COOPERATIVE FEDERALISM," KING V. SMITH, 392
U.S.,AT 316, AND THE ROSADO COURT DISMISSED AS "ADVENTURESOME" ANY
INTERPRETATION OF SEC. 402(A)(23) THAT WOULD DEPRIVE THE STATES OF
THEIR TRADITIONAL DISCRETION TO SET THE LEVELS OF PAYMENTS.  397
U.S.,AT 414-415 AND N. 17.  INSTEAD, THE STATUTE WAS MEANT TO REQUIRE
THE STATES TO MAKE COST-OF-LIVING ADJUSTMENTS TO THEIR STANDARDS OF
NEED, THEREBY SERVING "TWO BROAD PURPOSES": 

"FIRST, TO REQUIRE STATES TO FACE UP REALISTICALLY TO THE MAGNITUDE
OF THE PUBLIC ASSISTANCE REQUIREMENT AND LAY BARE THE EXTENT TO WHICH
THEIR PROGRAMS FALL SHORT OF FULFILLING ACTUAL NEED; SECOND, TO PROD
THE STATES TO APPORTION THEIR PAYMENTS ON A MORE EQUITABLE BASIS." 
ID., AT 412-413. 

TEXAS HAS COMPLIED WITH THESE TWO REQUIREMENTS.  EFFECTIVE MAY 1,
1969, THE STANDARD OF NEED FOR AFDC RECIPIENTS WAS RAISED 11% TO
REFLECT THE RISE IN THE COST OF LIVING, AND THE STATE SHIFTED FROM A
MAXIMUM-GRANT SYSTEM TO ITS PRESENT PERCENTAGE-REDUCTION SYSTEM.  IN
THIS WAY, THE STATE HAS FAIRLY RECOGNIZED AND EXPOSED THE PRECISE LEVEL
OF UNMET NEED, AND BY USING A PERCENTAGE-REDUCTION SYSTEM IT HAS
ATTEMPTED TO APPORTION THE STATE'S LIMITED BENEFITS MORE EQUITABLY. 

ALTHOUGH TEXAS HAS THUS RESPONDED TO THE "TWO BROAD PURPOSES" OF
SEC. 402(A)(23), APPELLANTS ARGUE THAT CONGRESS ALSO INTENDED THAT
STATUTE TO INCREASE THE TOTAL NUMBER OF RECIPIENTS OF AFDC, SO THAT
MORE PEOPLE WOULD QUALIFY FOR THE SUBSIDIARY BENEFITS THAT ARE
DEPENDENT ON RECEIPT OF AFDC CASH ASSISTANCE.  /10/  THE TEXAS
COMPUTATION PROCEDURES ARE THOUGHT OBJECTIONABLE SINCE THEY DO NOT
INCREASE THE WELFARE ROLLS TO QUITE THE SAME EXTENT AS WOULD THE
ALTERNATIVE METHOD OF RECOGNIZING OUTSIDE INCOME. 

WE DO NOT AGREE THAT CONGRESS INTENDED SEC. 402(A)(23) TO INVALIDATE
ANY STATE COMPUTATION PROCEDURES THAT DO NOT ABSOLUTELY MAXIMIZE
INDIVIDUAL ELIGIBILITY FOR SUBSIDIARY BENEFITS.  THE COST-OF-LIVING
INCREASE THAT CONGRESS MANDATED WOULD, OF COURSE, GENERALLY TEND TO
INCREASE ELIGIBILITY, /11/  BUT THERE IS NOTHING IN THE LEGISLATIVE
HISTORY INDICATING THAT THIS WAS PART OF THE STATUTORY PURPOSE. 
INDEED, AT THE SAME TIME CONGRESS ENACTED SEC. 402(A)(23) IT INCLUDED
ANOTHER SECTION DESIGNED TO INDUCE STATES TO REDUCE THE NUMBER OF
INDIVIDUALS ELIGIBLE FOR THE AFDC PROGRAM.  /12/  THUS, WHAT LITTLE
LEGISLATIVE HISTORY THERE IS ON THE POINT, SEE ROSADO V. WYMAN, 397
U.S.,AT 409-412, TENDS TO UNDERCUT APPELLANTS' THEORY.  SEE LAMPTON V.
BONIN, 304 F.SUPP.  1384, 1391-1392 (ED LA. 1969) (CASSIBRY, J.,
DISSENTING).  SEE GENERALLY NOTE, 58 GEO.L.J. 591 (1970). 

APPELLANTS ALSO ARGUE THAT THE TEXAS SYSTEM SHOULD BE HELD INVALID
BECAUSE THE ALTERNATIVE COMPUTATION METHOD RESULTS IN GREATER WORK
INCENTIVES FOR WELFARE RECIPIENTS.  /13/  THE HISTORY AND PURPOSE OF
THE SOCIAL SECURITY ACT DO INDICATE CONGRESS' DESIRE TO HELP THOSE ON
WELFARE BECOME SELF-SUSTAINING.  INDEED, CONGRESS HAS SPECIFICALLY
MANDATED CERTAIN WORK INCENTIVES IN SEC. 402(A)(8).  THERE IS NO
DISPUTE HERE, HOWEVER, ABOUT TEXAS' COMPLIANCE WITH THESE VERY DETAILED
PROVISIONS FOR WORK INCENTIVES.  NEITHER THEIR INCLUSION IN THE ACT NOR
THE LANGUAGE USED BY CONGRESS IN OTHER SECTIONS OF THE ACT SUPPORTS THE
INFERENCE THAT CONGRESS MANDATED THE STATES TO CHANGE THEIR INCOME
COMPUTATION PROCEDURES IN OTHER, COMPLETELY UNMENTIONED AREAS. 

NOR ARE APPELLANTS AIDED BY THEIR REFERENCE TO SOCIAL SECURITY ACT
SEC. 402(A)(10), 42 U.S.C. 602(A)(10), WHICH PROVIDES THAT AFDC
BENEFITS MUST "BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE
INDIVIDUALS."  THAT SECTION WAS ENACTED AT A TIME WHEN PERSONS WHOM THE
STATE HAD DETERMINED TO BE ELIGIBLE FOR THE PAYMENT OF BENEFITS WERE
PLACED ON WAITING LISTS, BECAUSE OF THE SHORTAGE OF STATE FUNDS.  THE
STATUTE WAS INTENDED TO PREVENT THE STATES FROM DENYING BENEFITS, EVEN
TEMPORARILY, TO A PERSON WHO HAS BEEN FOUND FULLY QUALIFIED FOR AID. 
SEE H.R. REP. NO. 1300, 81ST CONG., 1ST SESS., 48, 148 (1949); 95
CONG.REC.  13934 (REMARKS OF REP. FOR AND).  SECTION 402(A)(10) ALSO
PROHIBITS A STATE FROM CREATING CERTAIN EXCEPTIONS TO STANDARDS
SPECIFICALLY ENUNCIATED IN THE FEDERAL ACT.  SEE, E.G., TOWNSEND V.
SWANK, 404 U.S. 282 (1917).  IT DOES NOT, HOWEVER, ENACT BY IMPLICATION
A GENERALIZED FEDERAL CRITERION TO WHICH STATES MUST ADHERE IN THEIR
COMPUTATION OF STANDARDS OF NEED, INCOME, AND BENEFITS.  /14/  SUCH AN
INTERPRETATION WOULD BE AN INTRUSION INTO AN AREA IN WHICH CONGRESS HAS
GIVEN THE STATES BROAD DISCRETION, AND WE CANNOT ACCEPT APPELLANTS'
INVITATION TO CHANGE THIS LONGSTANDING STATUTORY SCHEME SIMPLY FOR
POLICY CONSIDERATION REASONS OF WHICH WE ARE NOT THE ARBITER. 

        III     WE TURN, THEN, TO APPELLANTS' CLAIM THAT THE TEXAS
SYSTEM OF PERCENTAGE REDUCTIONS VIOLATES THE FOURTEENTH AMENDMENT. 
APPELLANTS BELIEVE THAT ONCE THE STATE HAS COMPUTED A STANDARD OF NEED
FOR EACH RECIPIENT, IT IS ARBITRARY AND DISCRIMINATORY TO PROVIDE ONLY
75% OF THAT STANDARD TO AFDC RECIPIENTS, WHILE PAYING 100% OF
RECOGNIZED NEED TO THE AGED, AND 95% TO THE DISABLED AND THE BLIND. 
THEY ARGUE THAT IF THE STATE ADOPTS A PERCENTAGE-REDUCTION SYSTEM, IT
MUST APPLY THE SAME PERCENTAGE TO EACH OF ITS WELFARE PROGRAMS. 

THIS CLAIM WAS PROPERLY REJECTED BY THE COURT BELOW.  IT IS CLEAR
FROM THE STATUTORY FRAMEWORK THAT, ALTHOUGH THE FOUR CATEGORIES OF
PUBLIC ASSISTANCE FOUND IN THE SOCIAL SECURITY ACT HAVE CERTAIN COMMON
ELEMENTS, THE STATES WERE INTENDED BY CONGRESS TO KEEP THEIR AFDC PLANS
SEPARATE FROM PLANS UNDER THE OTHER TITLES OF THE ACT.  /15/  A STATE
IS FREE TO PARTICIPATE IN ONE, SEVERAL, OR ALL OF THE CATEGORICAL
ASSISTANCE PROGRAMS, AS IT CHOOSES.  IT IS TRUE THAT EACH OF THE
PROGRAMS IS INTENDED TO ASSIST THE NEEDY, BUT IT DOES NOT FOLLOW THAT
THERE IS ONLY ONE CONSTITUTIONALLY PERMISSIBLE WAY FOR THE STATE TO
APPROACH THIS IMPORTANT GOAL. 

THIS COURT EMPHASIZED ONLY RECENTLY, IN DANDRIDGE V. WILLIAMS, 397
U.S. 471, 485 (1970), THAT IN "THE AREA OF ECONOMICS AND SOCIAL
WELFARE, A STATE DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE MERELY
BECAUSE THE CLASSIFICATIONS MADE BY ITS LAWS ARE IMPERFECT."  A
LEGISLATURE MAY ADDRESS A PROBLEM "ONE STEP AT A TIME," OR EVEN "SELECT
ONE PHASE OF ONE FIELD AND APPLY A REMEDY THERE, NEGLECTING THE
OTHERS."  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489 (1955).  SO
LONG AS ITS JUDGMENTS ARE RATIONAL, AND NOT INVIDIOUS, THE
LEGISLATURE'S EFFORTS TO TACKLE THE PROBLEMS OF THE POOR AND THE NEEDY
ARE NOT SUBJECT TO A CONSTITUTIONAL STRAITJACKET.  THE VERY COMPLEXITY
OF THE PROBLEMS SUGGESTS THAT THERE WILL BE MORE THAN ONE
CONSTITUTIONALLY PERMISSIBLE METHOD OF SOLVING THEM. 

THE STANDARD OF JUDICIAL REVIEW IS NOT ALTERED BECAUSE OF
APPELLANTS' UNPROVED ALLEGATIONS OF RACIAL DISCRIMINATION.  THE THREE
JUDGE COURT FOUND THAT THE "PAYMENT BY TEXAS OF A LESSER PERCENTAGE OF
UNMET NEEDS TO THE RECIPIENTS OF THE AFDC THAN TO THE RECIPIENTS OF
OTHER WELFARE PROGRAMS IS NOT THE RESULT OF RACIAL OR ETHNIC PREJUDICE
AND IS NOT VIOLATIVE OF THE FEDERAL CIVIL RIGHTS ACT OR THE EQUAL
PROTECTION CLAUSE OF THE 14TH AMENDMENT."  THE DISTRICT COURT OBVIOUSLY
GAVE CAREFUL CONSIDERATION TO THIS ISSUE, AND WE ARE CITED BY ITS
OPINION TO A NUMBER OF SUBSIDIARY FACTS TO SUPPORT ITS PRINCIPAL
FINDING QUOTED ABOVE.  THERE HAS NEVER BEEN A REDUCTION IN THE AMOUNT
OF MONEY APPROPRIATED BY THE LEGISLATURE TO THE AFDC PROGRAM, AND
BETWEEN 1943 AND THE DATE OF THE OPINION BELOW THERE HAD BEEN FIVE
INCREASES IN THE AMOUNT OF MONEY APPROPRIATED BY THE LEGISLATURE FOR
THE PROGRAM, TWO OF THEM HAVING OCCURRED SINCE 1959.  /16/  THE OVERALL
PERCENTAGE INCREASE IN APPROPRIATION FOR THE PROGRAMS BETWEEN 1943 AND
THE TIME OF THE DISTRICT COURT'S HEARING IN THIS CASE WAS 410% FOR
AFDC, AS OPPOSED TO 211% FOR OAA AND 200% FOR AB.  THE COURT FURTHER
CONCLUDED: 

"THE DEPOSITIONS OF WELFARE OFFICIALS CONCLUSIVELY ESTABLISH THAT
THE DEFENDANTS DID NOT KNOW THE RACIAL MAKE-UP OF THE VARIOUS WELFARE
ASSISTANCE CATEGORIES PRIOR TO OR AT THE TIME WHEN THE ORDERS HERE
UNDER ATTACK WERE ISSUED."  APPELLANTS IN THEIR BRIEF IN EFFECT ABANDON
ANY EFFORT TO SHOW THAT THESE FINDINGS OF FACT WERE CLEARLY ERRONEOUS,
AND WE HOLD THEY WERE NOT. 

APPELLANTS ARE THUS LEFT WITH THEIR NAKED STATISTICAL ARGUMENT:
THAT THERE IS A LARGER PERCENTAGE OF NEGROES AND MEXICAN-AMERICANS IN
AFDC THAN IN THE OTHER PROGRAMS, /17/  AND THAT THE AFDC IS FUNDED AT
75% WHEREAS THE OTHER PROGRAMS ARE FUNDED AT 95% AND 100% OF RECOGNIZED
NEED.  AS THE STATISTICS CITED IN THE FOOTNOTE DEMONSTRATE, THE NUMBER
OF MINORITY MEMBERS IN ALL CATEGORIES IS SUBSTANTIAL.  THE BASIC
OUTLINES OF ELIGIBILITY FOR THE VARIOUS CATEGORICAL GRANTS ARE
ESTABLISHED BY CONGRESS, NOT BY THE STATES; GIVEN THE HETEROGENEITY OF
THE NATION'S POPULATION, IT WOULD BE ONLY AN INFREQUENT COINCIDENCE
THAT THE RACIAL COMPOSITION OF EACH GRANT CLASS WAS IDENTICAL TO THAT
OF THE OTHERS.  THE ACCEPTANCE OF APPELLANTS' CONSTITUTIONAL THEORY
WOULD RENDER SUSPECT EACH DIFFERENCE IN TREATMENT AMONG THE GRANT
CLASSES, HOWEVER LACKING IN RACIAL MOTIVATION AND HOWEVER OTHERWISE
RATIONAL THE TREATMENT MIGHT BE.  FEW LEGISLATIVE EFFORTS TO DEAL WITH
THE DIFFICULT PROBLEMS POSED BY CURRENT WELFARE PROGRAMS COULD SURVIVE
SUCH SCRUTINY, AND WE DO NOT FIND IT REQUIRED BY THE FOURTEENTH
AMENDMENT.  /18/ 

APPLYING THE TRADITIONAL STANDARD OF REVIEW UNDER THAT AMENDMENT, WE
CANNOT SAY THAT TEXAS' DECISION TO PROVIDE SOMEWHAT LOWER WELFARE
BENEFITS FOR AFDC RECIPIENTS IS INVIDIOUS OR IRRATIONAL.  SINCE
BUDGETARY CONSTRAINTS DO NOT ALLOW THE PAYMENT OF THE FULL STANDARD OF
NEED FOR ALL WELFARE RECIPIENTS, THE STATE MAY HAVE CONCLUDED THAT THE
AGED AND INFIRM ARE THE LEAST ABLE OF THE CATEGORICAL GRANT RECIPIENTS
TO BEAR THE HARDSHIPS OF AN INADEQUATE STANDARD OF LIVING.  WHILE
DIFFERENT POLICY JUDGMENTS ARE OF COURSE POSSIBLE, IT IS NOT IRRATIONAL
FOR THE STATE TO BELIEVE THAT THE YOUNG ARE MORE ADAPTABLE THAN THE
SICK AND ELDERLY, ESPECIALLY BECAUSE THE LATTER HAVE LESS HOPE OF
IMPROVING THEIR SITUATION IN THE YEARS REMAINING TO THEM.  WHETHER OR
NOT ONE AGREES WITH THIS STATE DETERMINATION, THERE IS NOTHING IN THE
CONSTITUTION THAT FORBIDS IT.  /19/ 

SIMILARLY, WE CANNOT ACCEPT THE ARGUMENT IN MR. JUSTICE MARSHALL'S
DISSENT THAT THE SOCIAL SECURITY ACT ITSELF REQUIRES EQUAL PERCENTAGES
FOR EACH CATEGORICAL ASSISTANCE PROGRAM.  THE DISSENT CONCEDES THAT A
STATE MIGHT SIMPLY REFUSE TO PARTICIPATE IN THE AFDC PROGRAM, WHILE
CONTINUING TO RECEIVE FEDERAL MONEY FOR THE OTHER CATEGORICAL
PROGRAMS.  SEE POST, AT 577.  NEVERTHELESS, IT IS ARGUED THAT CONGRESS
INTENDED TO PROHIBIT ANY MIDDLE GROUND-- ONCE THE STATE DOES
PARTICIPATE IN A PROGRAM IT MUST DO SO ON THE SAME BASIS AS IT
PARTICIPATES IN EVERY OTHER PROGRAM.  SUCH AN ALL-OR-NOTHING POLICY
JUDGMENT MAY WELL BE DEFENSIBLE, AND THE DISSENTERS MAY BE CORRECT THAT
NOTHING IN THE STATUTE EXPRESSLY REJECTS IT.  BUT NEITHER DOES ANYTHING
IN THE STATUTE APPROVE OR REQUIRE IT.  /20/ 

IN CONCLUSION, WE RE-EMPHASIZE WHAT THE COURT SAID IN DANDRIDGE V.
WILLIAMS, 397 U.S.,AT 487: 

     "WE DO NOT DECIDE TODAY THAT THE (STATE LAW) IS WISE, THAT IT

  BEST FULFILLS THE RELEVANT SOCIAL AND ECONOMIC OBJECTIVES THAT

  (THE STATE) MIGHT IDEALLY ESPOUSE, OR THAT A MORE JUST AND HUMANE

SYSTEM COULD NOT BE DEVISED.  CONFLICTING CLAIMS OF MORALITY AND

  INTELLIGENCE ARE RAISED BY OPPONENTS AND PROPONENTS OF ALMOST

  EVERY MEASURE, CERTAINLY INCLUDING THE ONE BEFORE US.  BUT THE

  INTRACTABLE ECONOMIC, SOCIAL, AND EVEN ASSISTANCE PROGRAMS ARE

  NOT THE BUSINESS OF THIS COURT.  . . . (THE CONSTITUTION DOES NOT

  EMPOWER THIS COURT TO SECOND-GUESS STATE OFFICIALS CHARGED WITH

  THE DIFFICULT RESPONSIBILITY OF ALLOCATING LIMITED PUBLIC WELFARE

  FUNDS AMONG THE MYRIAD OF POTENTIAL RECIPIENTS." 

AFFIRMED. 

/1/  ORIGINALLY, THE TEXAS CONSTITUTION PROHIBITED ALL WELFARE
PROGRAMS.  SECTION 51 OF ART. III OF THE CONSTITUTION PROVIDED THAT THE
LEGISLATURE "SHALL HAVE NO POWER TO MAKE ANY GRANT OR AUTHORIZE THE
MAKING OF ANY GRANT OF PUBLIC MONEYS TO ANY INDIVIDUAL, ASSOCIATION OF
INDIVIDUALS, MUNICIPAL OR OTHER CORPORATIONS WHATSOEVER . . . ." 
HOWEVER, BEGINNING IN 1933, EXCEPTIONS TO THIS RULE WERE ADDED TO THE
STATE CONSTITUTION IN SEC. 51-A, WHICH NOW ALLOWS PARTICIPATION IN THE
FEDERAL WELFARE PROGRAMS, BUT LIMITS STATE FINANCING TO THE SUM OF
$80,000,000.  THE LEGISLATURE CANNOT EXCEED THIS WELFARE BUDGET WITHOUT
A STATE CONSTITUTIONAL AMENDMENT. 

/2/  OLD AGE ASSISTANCE (OAA), 42 U.S.C. 301 ET SEQ.; AID TO
FAMILIES WITH DEPARTMENT CHILDREN (AFDC), 42 U.S.C. 601 ET SEQ.; AID TO
THE BLIND (AB), 42 U.S.C. 1201 ET SEQ.; AID FOR THE PERMANENTLY AND
TOTALLY DISABLED (APTD), 42 U.S.C. 1351 ET SEQ. 

/3/  AT THE PRESENT TIME THESE FACTORS ARE:  OAA-- 100%; AB-- 95%;
APTD-- 95%; AND AFDC-- 75%.  AT THE TIME THIS SUIT WAS INSTITUTED THE
AFDC PERCENTAGE WAS 50%, BUT IT WAS RAISED TO 75% FOLLOWING A RECENT
AMENDMENT OF SEC. 51-A.  SEE N. 1, SUPRA. 

/4/  NINETEEN OF THE 26 STATES THAT USE A PERCENTAGE-REDUCTION
SYSTEM FOLLOW THE TEXAS PROCEDURE OF ACCOUNTING FOR OUTSIDE INCOME. 
SEE MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE 8, 15-16. 

/5/  A CERTAIN PORTION OF EARNED INCOME MUST BE EXEMPTED AS A WORK
INCENTIVE.  SEE 42 U.S.C. 602(A)(8). 

/6/  ASSUMING TWO IDENTICAL FAMILIES, EACH WITH A STANDARD OF NEED
OF $200, AND OUTSIDE, NONEXEMPT INCOME OF $100, THE TWO SYSTEMS WOULD
PRODUCE THESE RESULTS:  (TABLE OMITTED) 

/7/  ASSUMING TWO FAMILIES WITH IDENTICAL STANDARDS OF NEED, BUT
ONLY ONE WITH OUTSIDE INCOME, THE ALTERNATIVE SYSTEM LEAVES MORE MONEY
IN THE HANDS OF THE FAMILY WITH OUTSIDE INCOME:  (TABLE OMITTED) 

/8/  UNDER THE TEXAS SYSTEM, ONCE THE INCOME RISES ABOVE THE REDUCED
STANDARD OF NEED THE INDIVIDUAL NO LONGER RECEIVES ANY CASH
ASSISTANCE.  HE THEN WOULD HAVE A FINANCIAL INCENTIVE, SINCE HIS INCOME
WOULD BE RISING ABOVE THE MAXIMUM HE COULD EXCEPT FROM THE WELFARE
SYSTEM. 

/9/  FOR A GENERAL REVIEW OF THE STATUTORY SCHEME, SEE ROSADO V.
WYMAN, 397 U.S. 397, 407-412 (1970). 

/10/  CERTAIN CARE-AND-TRAINING PROVISIONS OF THE SOCIAL SECURITY
ACT ARE AVAILABLE ONLY TO THOSE WHO RECEIVE MONEY PAYMENTS UNDER THE
CATEGORICAL ASSISTANCE PROGRAMS.  SEE 42 U.S.C. 602(A)(14), (15); 42
U.S.C. 602(A)(19), 632; 42 U.S.C. 1396AA)(10).  UNDER THE TEXAS
COMPUTATION PROCEDURES, THOSE WHOSE INCOME EXCEEDS THEIR REDUCED
STANDARD OF NEED RECEIVE NO CASH BENEFITS AND THUS DO NOT QUALIFY FOR
THESE SUBSIDIARY BENEFITS, ALTHOUGH THEY DO HAVE "UNMET NEED"
QUALIFYING THEM FOR AID UNDER THE ALTERNATIVE COMPUTATION PROCEDURE. 

/11/  THE COURT IN ROSADO RECOGNIZED THIS AS ONE OF SEVERAL EFFECTS
ATTRIBUTABLE TO SEC. 402(A)(23).  397 U.S.,AT 413.  SEE ALSO ID., AT
409, N. 13.  THE COURT DID NOT, HOWEVER, HOLD THAT EACH ONE OF THESE
EFFECTS WAS INTENDED BY CONGRESS.  IN FACT, THE ROSADO HOLDING AS TO
THE "TWO BROAD PURPOSES" OF CONGRESS WAS STATED ABOVE, AND THE TEXAS
SYSTEM IS PERFECTLY CONSISTENT WITH IT.  THE COURT MENTIONED WIDENED
ELIGIBILITY SIMPLY AS ONE OF SEVERAL POSSIBLE EFFECTS THAT MIGHT FOLLOW
FROM THE STATUTE AS SO CONSTRUED. 

/12/  ACT OF JAN. 2, 1968, PUB. L. NO. 90-248, TIT. II, SEC. 208, 81
STAT. 894, REPEALED 83 STAT. 45. 

/13/  SEE N. 7, SUPRA. 

/14/  APPELLANTS' RELIANCE ON LANGUAGE FROM DANDRIDGE V. WILLIAMS,
397 U.S. 471, 480-481 (1970), IS MISPLACED.  THE COURT THERE EXPLICITLY
FAILED TO REACH THE STATE'S ARGUMENT THAT THE PURPOSE OF SEC.
402(A)(10) WAS PRIMARILY TO PREVENT THE USE OF WAITING LISTS.  ID., AT
481 N. 12. 

/15/  EACH CATEGORICAL ASSISTANCE PROGRAM IS EMBODIED IN A SEPARATE
TITLE OF THE SOCIAL SECURITY ACT, SEE N. 2, SUPRA, AND REQUIRES A STATE
PLAN INDEPENDENT OF THE PLANS UNDER THE OTHER TITLES.  IN 1962,
HOWEVER, CONGRESS ENACTED 42 U.S.C. 1381-1385, WHICH FOR THE FIRST TIME
ENABLED STATES TO COMBINE THEIR PLANS, BUT ONLY FOR THE NON-AFDC
PROGRAMS.  THUS, WHILE CONGRESS HAS NOW ENABLED STATES TO ADOPT A
COMMON PLAN FOR THE OTHER PROGRAMS, IT CONSIDERED AFDC SUFFICIENTLY
DIFFERENT SO AS TO REQUIRE AN INDEPENDENT PLAN. 

/16/  SINCE THE ORIGINAL OPINION BELOW, THERE HAS BEEN AN ADDITIONAL
INCREASE.  FOLLOWING A CONSTITUTIONAL AMENDMENT, SEE N. 3, SUPRA, THE
APPROPRIATION HAS ARISEN FROM $6,150,000 TO $23,100,000. 

/17/  (TABLE OMITTED) 

/18/  IN JAMES V. VALTIERRA, 402 U.S. 137 (1971), IT WAS CONTENDED
THAT A CALIFORNIA REFERENDUM REQUIREMENT VIOLATED THE FOURTEENTH
AMENDMENT BECAUSE IT IMPOSED A MANDATORY REFERENDUM IN THE CASE OF AN
ORDINANCE AUTHORIZING LOW INCOME HOUSING, WHILE REFERENDA WITH RESPECT
TO OTHER TYPES OF ORDINANCES HAD TO BE INITIATED BY THE ACTION OF
PRIVATE INDIVIDUALS.  THE COURT RESPONDED: 

"BUT OF COURSE A LAWMAKING PROCEDURE THAT 'DISADVANTAGES' A
PARTICULAR GROUP DOES NOT ALWAYS DENY EQUAL PROTECTION.  UNDER ANY SUCH
HOLDING, PRESUMABLY A STATE WOULD NOT BE ABLE TO REQUIRE REFERENDUMS ON
ANY SUBJECT UNLESS REFERENDUMS WERE REQUIRED ON ALL, BECAUSE THEY WOULD
ALWAYS DISADVANTAGE SOME GROUP.  AND THIS COURT WOULD BE REQUIRED TO
ANALYZE GOVERNMENTAL STRUCTURES TO DETERMINE WHETHER A GUBERNATORIAL
VETO PROVISION OR A FILIBUSTER RULE IS LIKELY TO 'DISADVANTAGE' ANY OF
THE DIVERSE AND SHIFTING GROUPS THAT MAKE UP THE AMERICAN PEOPLE." 
ID., AT 142. 

/19/  JUST AS THE STATE'S ACTIONS HERE DO NOT VIOLATE THE FOURTEENTH
AMENDMENT, WE CONCLUDE THAT THEY DO NOT VIOLATE TITLE VI OF THE CIVIL
RIGHTS ACT OF 1964, 42 U.S.C. 200D ET SEQ. THE CIVIL RIGHTS ACT
PROHIBITS DISCRIMINATION IN FEDERALLY FINANCED PROGRAMS.  WE HAVE,
HOWEVER, UPHELD THE FINDINGS OF NONDISCRIMINATORY PURPOSE IN THE
PERCENTAGE REDUCTIONS USED BY TEXAS, AND HAVE CONCLUDED THAT THE
VARIATION IN PERCENTAGES IS RATIONALLY RELATED TO THE PURPOSES OF THE
SEPARATE WELFARE PROGRAMS.  THE COURT'S DECISION IN GRIGGS V. DUKE
POWER CO., 401 U.S. 424 (1971), IS THEREFORE INAPPOSITE.  IN GRIGGS,
THE EMPLOYMENT TESTS HAVING RACIALLY DISCRIMINATORY EFFECTS WERE FOUND
NOT TO BE JOB-RELATED, AND FOR THAT REASON WERE IMPERMISSIBLE UNDER THE
SPECIFIC LANGUAGE OF TITLE VII OF THE CIVIL RIGHTS ACT.  SINCE THE
TEXAS PROCEDURE CHALLENGED HERE IS RELATED TO THE PURPOSES OF THE
WELFARE PROGRAMS, IT IS NOT PROSCRIBED BY TITLE VI SIMPLY BECAUSE OF
VARIANCES IN THE RACIAL COMPOSITION OF THE DIFFERENT CATEGORICAL
PROGRAMS. 

/20/  MR. JUSTICE MARSHALL'S DISSENT CITES THE 1950 AMENDMENTS TO
THE SOCIAL SECURITY ACT AS SUPPORT FOR ITS NOVEL STATUTORY THEORY THAT
STATES MUST PROVIDE EQUAL AID LEVELS IN EACH WELFARE CATEGORY.  THE
1950 AMENDMENTS INCLUDED "A REVISED METHOD OF DETERMINING THE FEDERAL
SHARE OF ASSISTANCE COSTS," 95 CONG.REC.  13932, SO THAT THE FEDERAL
GOVERNMENT WOULD PAY A SUBSTANTIALLY EQUAL PERCENTAGE OF MATCHING FUNDS
TO STATE PLANS IN EACH OF THE CATEGORICAL ASSISTANCE PROGRAMS.  SEE S.
DOC. NO. 208, 80TH CONG., 2D SESS., 101.  BUT THIS REVISION OF THE
GRANT-IN-AID FORMULA IN SEC. 403 OF THE ACT WAS NOT ACCOMPANIES BY ANY
CORRESPONDING AMENDMENT OF SEC. 402, THE SECTION OF THE ACT DEALING
WITH CONGRESSIONAL LIMITATIONS ON STATE AFDC PROGRAMS.  INDEED,
PROPONENTS OF THE 1950 AMENDMENTS EXPLICITLY RECOGNIZED AND ENDORSED
THE LONGSTANDING POLICY THAT THE FEDERAL GOVERNMENT SETS ONLY MINIMUM
AFDC STANDARDS, WHILE LEAVING THE STATES "WIDE DISCRETION BOTH IN
DETERMINING POLICIES AND IN SETTING STANDARDS OF NEED."  S. DOC. NO.
208, SUPRA, AT 101.  THE ENACTMENT OF A MODIFIED GRANT-IN-AID FORMULA
HARDLY SUGGEST CONGRESS' INTENT TO ENGAGE IN "EXTENSIVE ALTERATION OF
THE BASIC UNDERLYING STRUCTURE OF AN ESTABLISHED PROGRAM."  ROSADO V.
WYMAN, 397 U.S.,AT 414 N. 17. 

MR. JUSTICE STEWART JOINS IN PART III OF THE COURT'S OPINION. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

I WOULD READ THE ACT MORE GENEROUSLY THAN DOES THE COURT.  IT IS
STIPULATED THAT 87% OF THOSE RECEIVING AFDC AID ARE BLACKS OR
CHICANOS.  I WOULD THEREFORE READ THE ACT AGAINST THE BACKGROUND OF
RANK DISCRIMINATION AGAINST THE BLACKS AND THE CHICANOS AND IN LIGHT OF
THE FACT THAT CHICANOS IN TEXAS FARE EVEN MORE POORLY THAN THE BLACKS. 
SEE L. GREBLER, J. MOORE, & R. GUZMAN, THE MEXICAN-AMERICAN PEOPLE,
PTS.  2 AND 3 (1970); J. BURMA, MEXICAN-AMERICANS IN THE UNITED STATES
143-199 (1970); SCHWARTZ, STATE DISCRIMINATION AGAINST MEXICAN ALIENS,
38 GEO.WASH.L.REV.  1091 (1970); U.S. COMMISSION ON CIVIL RIGHTS, THE
MEXICAN AMERICAN (1968); U.S. COMMISSION ON CIVIL RIGHTS, MEXICAN
AMERICANS AND THE ADMINISTRATION OF JUSTICE IN THE SOUTHWEST (1970). 
IN ROSADO V. WYMAN, 397 U.S. 397, 413, WE SAID THAT IN ADMINISTERING
SUCH A PROGRAM A STATE "MAY NOT OBSCURE THE ACTUAL STANDARD OF NEED." 
TEXAS DOES PRECISELY THAT BY MANIPULATING A MATHEMATICAL FORMULA. 

IN ROSADO, WE DESCRIBED HOW SOME STATES ESTABLISH UPPER LIMITS OR
MAXIMUMS OF AID, WHILE OTHERS, LIKE TEXAS, "CURTAIL THE PAYMENTS OF
BENEFITS BY A SYSTEM OF 'RATABLE REDUCTIONS' WHEREBY ALL RECIPIENTS
WILL RECEIVE A FIXED PERCENTAGE OF THE STANDARD OF NEED."  ID., AT
409.  THEN IN FOOTNOTE 13 WE DESCRIBED WHAT THAT MEANT:  "A 'RATABLE
REDUCTION' REPRESENTS A FIXED PERCENTAGE OF THE STANDARD OF NEED THAT
WILL BE PAID TO ALL RECIPIENTS.  IN THE EVENT THAT THERE IS SOME INCOME
THAT IS FIRST DEDUCTED, THE RATABLE REDUCTION IS APPLIED TO THE AMOUNT
BY WHICH THE INDIVIDUAL OR FAMILY INCOME FALLS SHORT OF NEED."  ID., AT
409 N. 13. 

IF TEXAS FIRST DEDUCTED OUTSIDE INCOME AND THEN MADE ITS RATABLE
REDUCTION, THE WELFARE RECIPIENT WOULD RECEIVE A SOMEWHAT MORE GENEROUS
PAYMENT, AS THE OPINION OF THE COURT ILLUSTRATES IN FOOTNOTE 6 OF ITS
OPINION.  NOT ONLY DOES THE TEXAS SYSTEM AVOID THIS GENEROUS APPROACH,
BUT IT ALSO IMPERMISSIBLY CONSTRICTS THE STANDARD OF NEED IN CONFLICT
WITH ROSADO, DANDRIDGE V. WILLIAMS, 397 U.S. 471, AND TOWNSEND V.
SWANK, 404 U.S. 282.  UNDER TEXAS' METHOD OF COMPUTATION, A FAMILY--
OTHERWISE ELIGIBLE FOR AFDC BENEFITS BUT WITH NONEXEMPT INCOME GREATER
THAN THE LEVEL OF BENEFITS AND LESS THAN THE STANDARD OF NEED-- IS
DENIED BOTH AFDC CASH BENEFITS AND OTHER NONCASH BENEFITS SUCH AS
MEDICAID.  /1/  IT SEEMS INCONCEIVABLE THAT CONGRESS COULD HAVE
INTENDED THAT NONCASH BENEFITS BE DENIED THOSE WITH INCOMES LESS THAN
THE STANDARD OF NEED SOLELY BECAUSE THAT INCOME WAS EARNED RATHER THAN
FROM CATEGORICAL ASSISTANCE.  YET THIS IS PRECISELY THE RESULT
SANCTIONED BY THE COURT TODAY BECAUSE ELIGIBILITY FOR THESE PROGRAMS IS
TIED TO THE RECEIPT OF CASH BENEFITS.  /2/ 

ONE OF THE STATED PURPOSES OF THE AFDC PROGRAM IS "TO HELP SUCH
PARENTS OR RELATIVES (OF NEEDY DEPENDENT CHILDREN) TO ATTAIN OR RETAIN
CAPABILITY FOR THE MAXIMUM SELF-SUPPORT AND PERSONAL INDEPENDENCE."  42
U.S.C. 601.  THE SENATE FINANCE COMMITTEE HAS STATED, "A KEY ELEMENT IN
ANY PROGRAM FOR WORK AND TRAINING FOR ASSISTANCE RECIPIENTS IS AN
INCENTIVE FOR PEOPLE TO TAKE EMPLOYMENT."  S. REP. NO. 744, 90TH CONG.,
1ST SESS., 157 (1967).  THE MAJORITY ACKNOWLEDGES THAT "(THE HISTORY
AND PURPOSE OF THE SOCIAL SECURITY ACT . . . INDICATE CONGRESS' DESIRE
TO HELP THOSE ON WELFARE BECOME SELF-SUSTAINING."  ANTE, AT 544.  BUT
IT NONETHELESS IGNORES THE EXPLICIT CONGRESSIONAL POLICY IN FAVOR OF
WORK INCENTIVES AND UPHOLDS A SYSTEM WHICH PROVIDES PENALTIES AND
DISINCENTIVES FOR THOSE WHO SEEK EMPLOYMENT.  /3/ 

THE CALIFORNIA SUPREME COURT IN VILLA V. HALL, 6 CAL.3D 227, 490
P.2D 1148, STRUCK DOWN THE SYSTEM THIS COURT APPROVES TODAY, WHERE
CALIFORNIA USED A STATUTORY MAXIMUM OF PAYMENTS RATHER THAN A RATABLE
REDUCTION.  THE CALIFORNIA SUPREME COURT QUITE PROPERLY SAID THAT WHAT
THE STATE WAS ATTEMPTING WAS INCONSISTENT WITH ROSADO.  MOREOVER, IT
HAD AN ADDITIONAL REASON: 

     "THE CONCLUSION THAT THE SOCIAL SECURITY ACT REQUIRES OUTSIDE

  INCOME TO BE SUBTRACTED FROM STANDARDS OF NEED RATHER THAN FROM

  STATUTORY MAXIMUMS OR RATABLE REDUCTIONS IS ALSO FOUNDED ON A

  STRONG PUBLIC POLICY OF ENCOURAGING WELFARE RECIPIENTS TO BECOME

  CONSTANTLY MORE SELF-SUPPORTING.  YET DEDUCTING INCOME FROM

  STATUTORY MAXIMUMS MAKES GAINFUL EMPLOYMENT SIGNIFICANTLY LESS

  ATTRACTIVE TO THE RECIPIENT.  THIS FOLLOWS BECAUSE ALL NONEXEMPT

  INCOME WILL BE OFFSET DIRECTLY AGAINST THE AMOUNT OF THE GRANT

  AND NOT AGAINST THE STANDARD OF NEED TO DETERMINE ACTUAL NEED;

  FOR EVERY NONEXEMPT DOLLAR EARNED, THE AMOUNT OF AID WILL

  THEREFORE BE DECREASED ONE DOLLAR.  SINCE THE GRANT IS ALWAYS

LESS THAN THE STANDARD OF NEED, IN MANY INSTANCES THE SYSTEM

  ADOPTED BY THE WELFARE REFORM ACT WILL RESULT IN AN INDIVIDUAL'S

  NEED NOT BEING MET EVEN AFTER ADDING BOTH EXEMPT AND NONEXEMPT

  INCOME TO THE AFDC PAYMENT.  SUCH RECIPIENTS WILL BE FORCED TO

  EXIST BELOW THE BARE MINIMUM NECESSARY FOR ADEQUATE CARE, EVEN

  THOUGH THEY HAVE COMMENCED, BY OBTAINING EMPLOYMENT, TO BREAK

  FREE FROM THE DEBILITATING 'WELFARE SYNDROME.'  THE PRACTICE THUS

  CONFLICTS WITH THE STATED FEDERAL POLICY TO PROVIDE INCENTIVES TO

  OBTAIN AND MAINTAIN AN EMPLOYMENT STATUS."  ID., AT 235-236, 490

  P.2D, AT 1153-1154. 

MOREOVER, TOWNSEND V. SWANK, 404 U.S. 282, CALLS FOR A REVERSAL IN
THE PRESENT CASE.  IT IS CONCEDED THAT PLAINTIFF MARIA T. DAVILLA AND
2,470 OTHER FAMILIES ARE DENIED AID IN TEXAS BY REASON OF ITS NEW
FORMULA, SEE 304 F.SUPP.  1332, 1343, DESPITE THE FACT THAT THEIR
INCOME IS BELOW THE STANDARD OF NEED AND THAT OF THOSE RECEIVING AFDC
AID ONLY 75% OF THEIR NEEDS IS MET.  /4/ 

UNDER SEC. 402(A)(10) OF THE SOCIAL SECURITY ACT (WHICH GOVERNS
AFDC) "AID TO FAMILIES WITH DEPENDENT CHILDREN SHALL BE FURNISHED WITH
REASONABLE PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS."  42 U.S.C.
602(A)(10).  IN TOWNSEND CHILDREN 18 THROUGH 20 YEARS OF AGE WHO
ATTENDED HIGH SCHOOL OR VOCATIONAL TRAINING WERE ELIGIBLE FOR AFDC
BENEFITS BUT SUCH CHILDREN IN COLLEGE WERE NOT ELIGIBLE.  WE HELD THAT
"A STATE ELIGIBILITY STANDARD THAT EXCLUDES PERSONS ELIGIBLE FOR
ASSISTANCE UNDER FEDERAL AFDC STANDARDS VIOLATES THE SOCIAL SECURITY
ACT AND IS THEREFORE INVALID UNDER THE SUPREMACY CLAUSE."  /5/  404
U.S.,AT 286. 

WHAT TEXAS DOES HERE IS TO EXCLUDE LARGE NUMBERS OF AFDC
BENEFICIARIES BY APPLICATION OF A STATE ELIGIBILITY TEST THAT IS
NARROWER THAN THE ONE WE APPROVED IN ROSADO.  WHILE A STATE HAS SOME
DISCRETION IN ITS USE OF FEDERAL FUNDS, IT MAY NOT MANIPULATE BY ITS
OWN FORMULA GROUPS OF "NEEDY" CLAIMANTS.  THE DECISION TO PARTICIPATE
OR NOT IN THE FEDERAL PROGRAM IS LEFT TO THE STATES.  TOWNSEND V.
SWANK, SUPRA, AT 290-291.  WHEN, AS HERE, FEDERAL AND STATE FUNDS ARE
IN SHORT SUPPLY, THE PROBLEM IS NOT TO LOP OFF SOME CATEGORIES OF THOSE
IN "NEED" BUT TO DESIGN A WAY OF MANAGING THE SYSTEM OF "NEED" SO AS
NOT TO RAISE EQUAL PROTECTION QUESTIONS.  /6/  ID., AT 291. 

SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE
INDIVIDUALS.  THE HOUSE REPORT IN COMMENTING ON IT SAID: 

     "SHORTAGE OF FUNDS IN AID TO DEPENDENT CHILDREN HAS SOMETIMES,

  AS IN OLD-AGE ASSISTANCE, RESULTED IN A DECISION NOT TO TAKE MORE

  APPLICATIONS OR TO KEEP ELIGIBLE FAMILIES ON WAITING LISTS UNTIL

  ENOUGH RECIPIENTS COULD BE REMOVED FROM THE ASSISTANCE ROLLS TO

  MAKE A PLACE FOR THEM . . . . (THIS DIFFERENCE IN TREATMENT

  ACCORDED TO ELIGIBLE PEOPLE RESULTS IN UNDUE HARDSHIP ON NEEDY

  PERSONS AND IS INAPPROPRIATE IN A PROGRAM FINANCED FROM FEDERAL

  FUNDS."  H.R. REP. NO. 1300, 81ST CONG., 1ST SESS., 48 (1949). 

AS THE COURT SAID IN DANDRIDGE V. WILLIAMS, 397 U.S.,AT 481, "SO
LONG AS SOME AID IS PROVIDED IN ALL ELIGIBLE FAMILIES AND ALL ELIGIBLE
CHILDREN, THE STATUTE ITSELF IS NOT VIOLATED."  IT IS VIOLATED HERE
BECAUSE NEARLY 2,500 FAMILIES THAT SATISFY THE REQUIREMENTS OF "NEED"
ARE DENIED ANY RELIEF.  /7/ 

/1/  THE COURT'S ACKNOWLEDGMENT THAT "(THE TEXAS COMPUTATION METHOD
ELIMINATES ANY . . . FINANCIAL INCENTIVE (FOR WELFARE RECIPIENTS TO
OBTAIN OUTSIDE INCOME), SO LONG AS THEIR) OUTSIDE INCOME REMAINS LESS
THAN THEIR) . . . REDUCED STANDARD OF NEED," ANTE, AT 541, UNDERSTATES
THE EFFECT OF THE TEXAS SYSTEM ON THE RECIPIENTS.  THE TEXAS SYSTEM NOT
ONLY FAILS TO PROVIDE AN INCENTIVE FOR THOSE ON THE WELFARE ROLLS TO
BREAK THE CYCLE OF POVERTY BY OBTAINING EMPLOYMENT, BUT-- IN CERTAIN
CASES-- IT ALSO PENALIZES THOSE WHO SEEK EMPLOYMENT.  THE FAMILY WITH
NONEXEMPT INCOME EQUAL TO TEXAS' LEVEL OF BENEFITS STANDS IN MUCH THE
SAME CASH POSITION AS THE AFDC RECIPIENT, BUT SOLELY BECAUSE THAT
FAMILY HAS EARNED THAT LAST MARGINAL DOLLAR THAT MAKES IT NO LONGER
ELIGIBLE FOR CATEGORICAL ASSISTANCE IT ALSO IS DENIED MEDICAL
ASSISTANCE, SOCIAL SERVICES, AND TRAINING.  THE SOLICITOR GENERAL TELLS
US THAT THE VALUE OF THE MEDICAL SERVICES ALONE IS WORTH $50-$60 PER
MONTH TO THE AVERAGE TEXAS AFDC FAMILY.  MEMORANDUM FOR THE UNITED
STATES AS AMICUS CURIAE 7 N. 5. 

/2/  ELIGIBILITY FOR FAMILY DEVELOPMENT SERVICES IS KEYED TO THE
"RECEIPT) (OF) AID TO FAMILIES WITH DEPENDENT CHILDREN," 42 U.S.C.
602(A)(14); SO, TOO, WITH EMPLOYMENT ASSISTANCE, ID., AT SEC.
602(A)(15)(A) ("RECEIVING AID UNDER THE PLAN"); PROTECTION AGAINST
CHILD'S NEGLECT OR ABUSE, ID., AT SEC. 602(A)(16) ("RECEIVING AID");
PLANS TO ESTABLISH PATERNITY AND SECURE SUPPORT, ID., AT SEC.
602(A)(17)(A)(I) AND (II) ("RECEIVING AID," "RECEIVING SUCH AID"); WORK
INCENTIVE PROGRAMS, ID., AT SEC. 602(A)(19)(A)(I) ("RECEIVING AID TO
FAMILIES WITH DEPENDENT CHILDREN"); AND MEDICAL ASSISTANCE PLANS, ID.,
AT SEC. 1396AA)(10) ("INDIVIDUALS RECEIVING AID OR ASSISTANCE"). 

WOULD CONGRESS HAVE TIED NEEDY FAMILIES' ELIGIBILITY FOR THESE
PROGRAMS TO THE RECEIPT OF CASH BENEFITS HAD IT FORESEEN THAT THIS
COURT WOULD DISREGARD THE STATUTORY MANDATE "THAT AID TO FAMILIES WITH
DEPENDENT CHILDREN SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL
ELIGIBLE INDIVIDUALS"?  42 U.S.C. 602(A)(10). 

/3/  THE RATIONALE WHICH THE COURT USES TO REACH THIS RESULT IS AT
ODDS WITH TIME-HONORED RULES OF STATUTORY INTERPRETATION.  FIRST, THE
COURT GIVES BUT A GRUDGING INTERPRETATION TO THE RECITAL IN SEC. 401 OF
THE ACT, 42 U.S.C. 601, THAT ONE OF CONGRESS' PURPOSES WAS TO ENCOURAGE
WELFARE RECIPIENTS TO BECOME SELF-SUPPORTING.  THE COURT IN EFFECT
DISREGARDS THE RULE THAT RECITALS EMBODY "THE GENERAL PURPOSES WHICH .
. . CONGRESS UNDERTOOK TO ACHIEVE."  CARTER V. CARTER COAL CO., 298
U.S. 238, 297.  AND SEE COOSAW MINING CO. V. SOUTH CAROLINA, 144 U.S.
550, 563; UNITED STATES V. FISHER, 2 CRANCH 358, 386.  SECOND, THE
COURT ATTRIBUTES TO CONGRESS THE PURPOSE OF PROVIDING WORK INCENTIVES,
E.G., 42 U.S.C. 602(A)(8), WHILE AT THE SAME TIME ALLOWING THE
IMPOSITION OF PENALTIES AND DISINCENTIVES FOR OBTAINING EMPLOYMENT. 
THE COURT DEPARTS FROM THE PRINCIPLE THAT "(IN THE EXPOSITION OF
STATUTES," VARIOUS SECTIONS OF THE SAME ACT "ARE SUPPOSED TO HAVE THE
SAME OBJECT," KOHLSAAT V. MURPHY, 96 U.S. 153, 159-160, AND HOLDS
INSTEAD THAT CONGRESS WAS WORKING AT CROSS-PURPOSES IN DIFFERENT
SUBSECTIONS OF SEC. 402, 42 U.S.C. 602.  FINALLY, BY GIVING THE SOCIAL
SECURITY ACT A MISERLY INTERPRETATION, THE COURT DISREGARDS THE CANON
THAT REMEDIAL LEGISLATION, SUCH AS THE SOCIAL SECURITY ACT, IS TO BE
INTERPRETED LIBERALLY TO EFFECTUATE ITS PURPOSES.  E.G., PEYTON V.
ROWE, 391 U.S. 54, 65. 

/4/  THE PERCENTAGES OF NEED THAT WILL BE MET BY TEXAS UNDER THE
VARIOUS HEADS ARE AS FOLLOWS: 

OLD AGE ASSISTANCE . . . 100% 

AID TO THE BLIND . . . 95% 

AID TO THE PERMANENTLY AND TOTALLY DISABLED . . . 95% 

AID TO FAMILIES WITH DEPENDENT CHILDREN . . . 75% 

WHEN THIS ACTION WAS INSTITUTED, TEXAS' AFDC PERCENTAGE LEVEL OF
BENEFITS WAS ONLY 50% OF THE STANDARD OF NEED.  DURING THE COURSE OF
THIS LITIGATION, TEXAS INCREASED THE AFDC LEVEL OF BENEFITS TO 75% OF
NEED. 

/5/  TO THE SAME EFFECT IS OUR RECENT DECISION IN ENGELMAN V. AMOS,
404 U.S. 23 (1971), AFF'G SUB NOM. X V. MCCORKLE, 333 F.SUPP.  1109 (NJ
1970).  THERE, RELYING ON ROSADO V. WYMAN, 397 U.S. 397, THE DISTRICT
COURT HELD INCONSISTENT WITH THE SOCIAL SECURITY ACT-- AND THUS
UNCONSTITUTIONAL UNDER THE SUPREMACY CLAUSE-- A STATE PROVISION WHICH
DENIED AFDC CASH PAYMENTS AND ANCILLARY BENEFITS TO THOSE WHOSE
NONEXEMPT INCOME WAS LESS THAN THE STANDARD OF NEED ESTABLISHED BY THE
STATE.  WE UNANIMOUSLY AFFIRMED THAT DECISION.  TO BE SURE, ENGELMAN
DEALT WITH FEDERAL PROVISIONS DIFFERENT FROM THOSE PRESENTLY IN ISSUE
(42 U.S.C. 602(A)(8)(A)(II); 45 CFR 233.20(A)(3)(II)), BUT THAT DOES
NOT DISTINGUISH THE CASE.  RATHER, IT MERELY EMPHASIZES THAT WHICH--
UNTIL TODAY-- WAS THE BROAD SCHEME OF THE SOCIAL SECURITY ACT:  THOSE
WHOSE NONEXEMPT INCOME WAS BELOW THE STANDARD OF NEED ESTABLISHED BY
THE STATE AND WHO MET THE OTHER NONFINANCIAL CRITERIA FOR ELIGIBILITY
WERE TO RECEIVE BENEFITS.  SEE 42 U.S.C. 602(A)(10).     /6/  TO BE
SURE, "(THERE IS NO QUESTION THAT STATES HAVE CONSIDERABLE LATITUDE IN
ALLOCATING THEIR AFDC RESOURCES, SINCE EACH STATE IS FREE TO SET ITS
OWN STANDARD OF NEED AND TO DETERMINE THE LEVEL OF BENEFITS BY THE
AMOUNT OF FUNDS IT DEVOTES TO THE PROGRAM."  KING V. SMITH, 392 U.S.
309, 318-319 (FOOTNOTES OMITTED).  ACCOMMODATION OF A STATE'S LIMITED
FINANCIAL RESOURCES, HOWEVER, IS TO BE MADE IN SETTING THE LEVEL OF
BENEFITS AND NOT BY GERRYMANDERING THE STANDARD OF NEED.  ROSADO V.
WYMAN, SUPRA, AT 413.  HERE, THE "REDUCED STANDARD OF NEED" WHICH THE
MAJORITY RECOGNIZES TO BE THE CONSEQUENCE OF THE TEXAS COMPUTATION
PROCEDURES, ANTE, AT 543 N. 10, VIOLATES SEC. 402(A)(23) OF THE SOCIAL
SECURITY ACT, 42 U.S.C. 602(A)(23), AND OUR DECISION IN ROSADO. 
AND THE "REDUCED STANDARD OF NEED" TEXAS APPLIES TO CERTAIN OF ITS
NEEDY VIOLATES THIS REQUIREMENT. 

/7/  45 CFR 233.10(A)(1)(II) PROVIDES: 

"THE GROUPS SELECTED FOR INCLUSION IN THE PLAN AND THE ELIGIBILITY
CONDITIONS IMPOSED MUST NOT EXCLUDE INDIVIDUALS OR GROUPS ON AN
ARBITRARY OR UNREASONABLE BASIS, AND MUST NOT RESULT IN INEQUITABLE
TREATMENT OF INDIVIDUALS OR GROUPS IN THE LIGHT OF THE PROVISIONS AND
PURPOSES OF THE PUBLIC ASSISTANCE TITLES OF THE SOCIAL SECURITY ACT." 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS, AND WITH
WHOM MR. JUSTICE STEWART JOINS AS TO PART I ONLY, DISSENTING. 

APPELLANTS, RECIPIENTS OF AID TO FAMILIES WITH DEPARTMENT CHILDREN
(AFDC) IN TEXAS, BROUGHT THIS ACTION TO CHALLENGE TWO DISTINCT ASPECTS
OF THE TEXAS AFDC PROGRAM.  FIRST, APPELLANTS CHALLENGE THE MANNER IN
WHICH TEXAS ARRIVES AT THE AMOUNT IT WILL PAY TO PERSONS WHO ARE
NEEDY.  SECOND, THEY URGE THAT TEXAS ACTS ILLEGALLY IN PROVIDING MORE
MONEY FOR PERSONS RECEIVING AID UNDER OTHER SOCIAL WELFARE LEGISLATION
THAN FOR PERSONS RECEIVING AFDC AID.  THE COURT REJECTS BOTH CLAIMS.  I
DISSENT. 

BEFORE PROCEEDING TO EXPLAIN WHY I DISAGREE WITH THE COURT, I WOULD
LIKE TO ILLUSTRATE WHAT THE DISPUTES IN THIS CASE ARE ALL ABOUT.  IF A
STATE IS UNABLE OR UNWILLING TO ESTABLISH A LEVEL OF AFDC PAYMENTS TO
MEET ALL THE NEEDS OF ALL RECIPIENTS, FEDERAL LAW PERMITS THE STATE TO
USE A PERCENTAGE-REDUCTION FACTOR AS A METHOD OF REDUCING PAYMENTS IN A
SOMEWHAT EQUITABLE MANNER.  TEXAS HAD ADOPTED A SYSTEM IN WHICH THE
PERCENTAGE-REDUCTION FACTOR IS APPLIED AGAINST THE STANDARD OF NEED
BEFORE OUTSIDE INCOME IS DEDUCTED.  APPELLANTS CONTEND THAT FEDERAL LAW
REQUIRES THE STATE TO DEDUCT OUTSIDE INCOME BEFORE THE PERCENTAGE
REDUCTION FACTOR IS APPLIED.  WHILE DESCRIBING THE DIFFERENCES BETWEEN
THE TWO ALTERNATIVES IS A HERCULEAN TASK, THE FIGURES THEMSELVES ARE
NOT DIFFICULT TO COMPREHEND.  FOOTNOTE 6 OF THE COURT'S OPINION, FOR
EXAMPLE, DEMONSTRATES THAT THE TEXAS SYSTEM PROVIDES LESS AID TO A
FAMILY WITH OUTSIDE INCOME THAN THE ALTERNATIVE SYSTEM.  IT IS ALSO
IMMEDIATELY OBVIOUS THAT UNDER THE TEXAS SYSTEM, AS SOON AS THE
FAMILY'S INCOME REACHES $150, IT NO LONGER RECEIVES ANYTHING FROM THE
STATE, WHEREAS UNDER THE ALTERNATIVE, A FAMILY EARNING THE SAME $150
WOULD CONTINUE TO RECEIVE SOME STATE FUNDS.  HENCE, THE TEXAS METHOD OF
COMPUTATION CONTRACTS THE CLASS OF FAMILIES ELIGIBLE TO RECEIVE STATE
AID.  APPELLANTS CONTEND THAT THE CHARACTERISTICS OF THE TEXAS SYSTEM
ARE INCONSISTENT WITH FEDERAL LEGISLATION AND THAT ONLY THE ALTERNATIVE
SYSTEM COMPORTS WITH THE INTENT OF CONGRESS.  I AGREE. 

APPELLANTS ALSO CLAIM THAT THE PERCENTAGE-REDUCTION FACTOR EMPLOYED
BY TEXAS IS ILLEGAL, IRRESPECTIVE OF THE METHOD OF COMPUTING PAYMENTS,
BECAUSE IT IS LOWER THAN THE FACTOR USED IN OTHER SOCIAL WELFARE
PROGRAMS THAT HAVE PARTICIPANTS WITH IDENTICAL STANDARDS OF NEED.  I
ALSO AGREE WITH APPELLANTS ON THIS POINT, BUT FOR SLIGHTLY DIFFERENT
REASONS FROM THOSE THEY HAVE URGED. 

        I 

A. IN CONSIDERING THE QUESTION WHETHER TEXAS' METHOD OF COMPUTING
ELIGIBILITY FOR AFDC PAYMENTS COMPORTS WITH THE FEDERAL STATUTE, 42
U.S.C. 601 ET SEQ., IT IS IMPORTANT TO KEEP IN MIND THE WORDS OF MR.
JUSTICE CARDOZO:  "WHEN (FEDERAL) MONEY IS SPENT TO PROMOTE THE GENERAL
WELFARE, THE CONCEPT OF WELFARE OR THE OPPOSITE IS SHAPED BY CONGRESS,
NOT THE STATES."  HELVERING V. DAVIS, 301 U.S. 619, 645 (1937).  MR.
JUSTICE HARLAN REITERATED THIS POINT IN ROSADO V. WYMAN, 397 U.S. 397,
422-423 (1970), WHEN HE STATED THAT IRRESPECTIVE OF THE POLICIES THAT A
STATE MIGHT WISH TO PURSUE BY UTILIZING AFDC MONEY IN ONE WAY OR
ANOTHER, THE ULTIMATE QUESTION TO BE ANSWERED IN EACH CASE IS WHETHER
THE ACTION OF THE STATE COMPORTS WITH THE REQUIREMENTS OF FEDERAL LAW. 

THE COURT CONCLUDES IN THE INSTANT CASE THAT THERE IS NO GENERAL
CONGRESSIONAL POLICY VIOLATED BY TEXAS' CHOICE BETWEEN THE ALTERNATIVE
METHODS OF APPLYING A PERCENTAGE-REDUCTION FACTOR TO ITS DETERMINED
STANDARD OF NEED, AND ALSO THAT NO SPECIFIC STATUTORY PROVISION
PROHIBITS TEXAS FROM CHOOSING ONE ALTERNATIVE RATHER THAN THE OTHER. 
IN CONCLUDING THAT THE LEGISLATIVE HISTORY IS INCONCLUSIVE AND THAT
"WHAT LITTLE LEGISLATIVE HISTORY THERE IS ON THE POINT . . . TENDS TO
UNDERCUT APPELLANTS' THEORY," THE COURT HAS, IN MY OPINION, TAKEN ONLY
A SUPERFICIAL LOOK INTO THE HISTORY OF THE STATUTE AND HAS IGNORED THE
INTENT OF CONGRESS IN VARIOUS SECTIONS OF THE AFDC LEGISLATION AS
INTERPRETED BY THIS COURT IN PRIOR CASES. 

B. I BEGIN BY CONSIDERING THE IMPACT OF SEC. 402(A)(23) OF THE
SOCIAL SECURITY ACT OF 1935, AS AMENDED, 81 STAT. 898, 42 U.S.C.
602(A)(23), ON APPELLANTS' ARGUMENT.  THAT SECTION PROVIDES THAT 

     "(A) S STATE PLAN FOR AID AND SERVICES TO NEEDY FAMILIES WITH
CHILDREN MUST

     .          .          .          . 

"(23) PROVIDE THAT BY JULY 1, 1969, THE AMOUNTS USED BY THE STATE TO
DETERMINE THE NEEDS OF INDIVIDUALS WILL HAVE BEEN ADJUSTED TO REFLECT
FULLY CHANGES IN LIVING COSTS SINCE SUCH AMOUNTS WERE ESTABLISHED, AND
ANY MAXIMUMS THAT THE STATE IMPOSES ON THE AMOUNT OF AID PAID TO
FAMILIES WILL HAVE BEEN PROPORTIONATELY ADJUSTED."  CONSIDERATION OF
THIS SECTION MUST, OF COURSE, BEGIN WITH ROSADO V. WYMAN, SUPRA, WHERE
WE EXAMINED THE DERIVATION OF THIS SECTION IN GREAT DETAIL. 

THE RELEVANT FACTS IN ROSADO ARE CONCISELY STATED IN 397 U.S.,AT
416.  NEW YORK STATE HAD CHANGED ITS AFDC PROGRAM SO THAT IT NO LONGER
DETERMINED NEED ON AN INDIVIDUALIZED BASIS, BUT INSTEAD SUBSTITUTED A
SYSTEM FIXING MAXIMUM FAMILY ALLOWANCES BASED ON THE NUMBER OF
INDIVIDUALS PER FAMILY.  THE RESULT WAS A DRASTIC REDUCTION IN OVERALL
PAYMENTS.  NEW YORK STATE WELFARE RECIPIENTS BROUGHT THE SUIT IN
ROSADO, CLAIMING THAT BY CHANGING ITS AFDC SYSTEM FROM AN
INDIVIDUALIZED-GRANT PROGRAM TO A MAXIMUM-GRANT PROGRAM, NEW YORK HAD
VIOLATED SEC. 402(A)(23). 

DESPITE OUR RECOGNITION THAT "(THE BACKGROUND OF SEC. 402(A)(23)
REVEALS LITTLE EXCEPT THAT WE HAVE BEFORE US A CHILD BORN OF THE SILENT
UNION OF LEGISLATIVE COMPROMISE," 397 U.S.,AT 412, WE DETERMINED TO
DISCOVER WHAT CONGRESS HAD IN MIND IN ADDING THE SECTION TO THE PRE
EXISTING AFDC LEGISLATION.  WE CONCLUDED THAT TWO GENERAL PURPOSES
COULD BE ASCRIBED TO THE SECTION: 

"FIRST, TO REQUIRE STATES TO FACE UP REALISTICALLY TO THE MAGNITUDE
OF THE PUBLIC ASSISTANCE REQUIREMENT AND LAY BARE THE EXTENT TO WHICH
THEIR PROGRAMS FALL SHORT OF FULFILLING ACTUAL NEED; SECOND, TO PROD
THE STATES TO APPORTION THEIR PAYMENTS ON A MORE EQUITABLE BASIS."  397
U.S.,AT 412-413.  THESE CONCLUSIONS LED US TO REJECT THE HOLDING OF THE
DISTRICT COURT, 304 F.SUPP.  1354, 1377, THAT CONGRESS INTENDED TO
PREVENT ANY REDUCTION WHATEVER IN AFDC PAYMENTS, AND TO REJECT THE
ARGUMENT OF THE WELFARE RECIPIENTS THAT IF PAYMENTS COULD BE REDUCED
SEC. 402(A)(23) WOULD BE MEANINGLESS.  WE DECIDED THAT "A STATE MAY,
AFTER RECOMPUTING ITS STANDARD OF NEED, PARE DOWN PAYMENTS TO
ACCOMMODATE BUDGETARY REALITIES BY REDUCING THE PERCENT OF BENEFITS
PAID OR SWITCHING TO A PERCENT REDUCTION SYSTEM, BUT IT MAY NOT OBSCURE
THE ACTUAL STANDARD OF NEED."  397 U.S.,AT 413.  FAR FROM EMASCULATING
THE STATUTE, OUR READING RECOGNIZED THAT THE STATUTE HAD AT LEAST THREE
SPECIFIC SALUTARY EFFECTS, AND THAT THESE WERE THE EFFECTS THAT
CONGRESS INTENDED IN ENACTING THE LEGISLATION: 

     "IT HAS THE EFFECT OF REQUIRING THE STATES TO RECOGNIZE AND

  ACCEPT THE RESPONSIBILITY FOR THOSE ADDITIONAL INDIVIDUALS WHOSE

  INCOME FALLS SHORT OF THE STANDARD OF NEED AS COMPUTED IN LIGHT

  OF ECONOMIC REALITIES AND TO PLACE THEM AMONG THOSE ELIGIBLE FOR

  THE CARE AND TRAINING PROVISIONS.  SECONDLY, WHILE IT LEAVES THE

  STATES FREE TO EFFECT DOWNWARD ADJUSTMENTS IN THE LEVEL OF

  BENEFITS PAID, IT ACCOMPLISHES WITHIN THAT FRAMEWORK THE GOAL,

  HOWEVER MODEST, OF FORCING A STATE TO ACCEPT THE POLITICAL

  CONSEQUENCE OF SUCH A CUTBACK AND BRINGING TO LIGHT THE TRUE

  EXTENT TO WHICH ACTUAL ASSISTANCE FALLS SHORT OF THE MINIMUM

  ACCEPTABLE.  LASTLY, BY IMPOSING ON THOSE STATES THAT DESIRE TO

  MAINTAIN 'MAXIMUMS' THE REQUIREMENT OF AN APPROPRIATE ADJUSTMENT,

  CONGRESS HAS INTRODUCED AN INCENTIVE TO ABANDON A FLAT 'MAXIMUM'

 SYSTEM, THEREBY ENCOURAGING THOSE STATES DESIROUS OF CONTAINING

  THEIR WELFARE BUDGET TO SHIFT TO A PERCENTAGE SYSTEM THAT WILL

  MORE EQUITABLY APPORTION THOSE FUNDS IN FACT ALLOCATED FOR

  WELFARE AND ALSO MORE ACCURATELY REFLECT THE REAL MEASURE OF

  PUBLIC ASSISTANCE BEING GIVEN."  ID., AT 413-414. 

THUS, IT IS CLEAR THAT WE BASED OUR DECISION IN ROSADO, A DECISION
THAT INTERPRETED SEC. 402(A)(23) TO PERMIT A DECREASE IN ACTUAL AFDC
PAYMENTS, LARGELY ON THE CONCLUSION THAT CONGRESS WANTED, NOT TO BAR
DECREASES, BUT TO ACCOMPLISH OTHER OBJECTIVES.  THE FACT IS THAT THE
COURT TODAY UNDERMINES EACH OF THOSE OBJECTIVES AND DESTROYS THE
PREMISE ON WHICH ROSADO WAS DECIDED. 

ONE SPECIFIC CONGRESSIONAL GOAL WE SAW IN SEC. 402(A)(23) WAS THAT
"(RECALCULATION OF NEED MAY SERVE TO RENDER ELIGIBLE FOR BENEFITS
FAMILIES WHICH MAY APPEAR UNDER UNADJUSTED STANDARDS MARGINALLY TO HAVE
ATTAINED SELF-SUFFICIENCY, BUT WHICH IN FACT ARE UNABLE TO SUBSIST AT
THE PRESENT COST OF LIVING."  MEMORANDUM FOR THE UNITED STATES AS
AMICUS CURIAE IN ROSADO V. WYMAN, NO. 540, O.T. 1969, P. 8.  IN OTHER
WORDS, WE READ THE SECTION AS EXPRESSING CONGRESS' WILLINGNESS TO
PERMIT REDUCTIONS IN ACTUAL PAYMENTS IN RETURN FOR THE ADDITION OF MORE
FAMILIES TO THE ROLLS OF AFDC RECIPIENTS.  ACCORD, LAMPTON V. BONIN,
304 F.SUPP.  1384 (ED LA. 1969), VACATED AND REMANDED FOR
RECONSIDERATION IN LIGHT OF ROSADO, 397 U.S. 663 (1970); ALVARADO V.
SCHMIDT, 317 F.SUPP.  1027 (WD WIS. 1970).  AS I HAVE POINTED OUT
ABOVE, THE TEXAS SYSTEM LIMITS THE NUMBER OF AFDC RECIPIENTS AND
ELIMINATES MARGINAL CASES.  THIS IS DIRECTLY CONTRARY TO THE INTENT OF
CONGRESS AS WE SAW IT IN ROSADO. 

A SECOND LEGISLATIVE AIM THAT WE SAW IN THE SECTION WAS TO FORCE
STATES TO REALIZE THE POLITICAL CONSEQUENCES OF REDUCING WELFARE
PAYMENTS.  IT MUST BE CLEAR THAT THE TEXAS SYSTEM OF ADMINISTERING AFDC
PAYMENTS EFFECTIVELY UNDERMINES THIS AIM BY ENABLING THE STATE TO
MAINTAIN A CONSTANT PERCENTAGE REDUCTION FACTOR SO THAT THE SYSTEM ON
ITS FACE APPEARS TO CONTAIN NO REDUCTIONS IN PAYMENTS.  WELFARE
REDUCTIONS ARE SURREPTITIOUSLY ACCOMPLISHED BY ELIMINATING FOR AFDC
PAYMENTS.  WHILE THE CONGRESSIONAL INTENT MAY NOT BE TOTALLY
EMASCULATED BY THIS SYSTEM, IT IS CERTAINLY NOT WELL SERVED. 

THE THIRD AND FINAL PURPOSE THAT WE FOUND THAT CONGRESS HAD
SPECIFICALLY IN MIND IN ENACTING SEC. 402(A)(23) WAS TO PROVIDE AN
INCENTIVE TO STATES TO ABANDON A FLAT "MAXIMUM" SYSTEM.  EVEN THOUGH
TEXAS DOES NOT NOW USE SUCH A SYSTEM, THE COURT'S APPROVAL OF THE
SYSTEM THAT TEXAS DOES USE WILL EFFECTIVELY REMOVE THE INCENTIVE FROM
THE STATUTE.  A STATE THAT USES A FLAT MAXIMUM SYSTEM WAS REQUIRED BY
SEC. 402(A)(23) TO ADJUST THE MAXIMUMS UPWARD TO REFLECT A RISE IN THE
COST OF LIVING.  SINCE A STATE THAT USES A PERCENTAGE-REDUCTION SYSTEM
MAY AVOID THE STRAINS COST-OF-LIVING ADJUSTMENTS PLACE ON THE BUDGET
SIMPLY BY LOWERING THE PERCENTAGE THAT IT CHOOSES TO PAY, THE STATUTE
ENCOURAGED ABANDONMENT OF FLAT MAXIMUMS IN FAVOR OF THE MORE EQUITABLE
PERCENTAGE REDUCTIONS.  THE COURT UNDERMINES THE INCENTIVE BY OFFERING
STATES A WAY TO CIRCUMVENT THE COST-OF-LIVING ADJUSTMENTS UNDER THE
FLAT MAXIMUM SYSTEM.  IN ORDER TO MAINTAIN THE MAXIMUMS WITHOUT
INCREASING EXPENDITURES, STATES COULD, UNDER THE COURT'S OPINION, BEGIN
TO USE THE MAXIMUM TO DETERMINE AFDC ELIGIBILITY RATHER THAN THE
STANDARD OF NEED.  THE RESULT OF THIS APPROACH WOULD BE TO REDUCE THE
NUMBER OF PERSONS ELIGIBLE FOR ASSISTANCE AND TO REDUCE THE GRANTS OF
ANYONE WITH ANY OUTSIDE INCOME.  RATHER THAN SERVE AS AN INCENTIVE TO
STATES TO CHANGE TO A PERCENTAGE-REDUCTION SYSTEM, AS CONGRESS
INTENDED, SEC. 402(A)(23) MAY NOW BE A POWERFUL INCENTIVE TO STATES TO
MAINTAIN OR REVERT TO MAXIMUM GRANTS. 

THE MANNER IN WHICH THE INCENTIVE THAT ROSADO SAW IN SEC. 402(A)(23)
IS STIFLED CAN BE ILLUSTRATED BY ANOTHER LOOK AT THE FAMILY HAVING AN
INCOME OF $100 AND A NEED OF $200.  FOOTNOTE 6 OF THE COURT'S OPINION
DEMONSTRATES THAT UNDER THE TEXAS PERCENTAGE-REDUCTION SYSTEM, EVEN IF
THE FAMILY HAD NO INCOME, THE MAXIMUM AMOUNT OF AID THAT THE FAMILY
COULD OBTAIN WOULD BE $150.  LET US ASSUME THAT TEXAS MAINTAINED A
MAXIMUM GRANT SYSTEM AND THAT PRIOR TO THE ENACTMENT OF SEC.
402(A)(23), THE MAXIMUM GRANT FOR A FAMILY WITH $200 NEED WAS $100.  WE
ASSUMED IN ROSADO THAT THE FOLLOWING COMPUTATION WOULD BE MADE. 

NEED . . . $200 

INCOME . . . $100 

UNMET NEED . . . $100 

MAXIMUM GRANT . . . $100 

TOTAL FAMILY FUNDS . . . $200 

THE LEVEL OF MAXIMUM GRANTS TO REFLECT THE RISE IN THE COST OF LIVING. 
ASSUMING THAT A 20% INCREASE WAS MANDATED BY THE RISE IN LIVING COSTS,
IT IS OBVIOUS THAT IF THE NUMBER OF FAMILIES REMAINED STABLE AND IF
INCOME WERE STABLE, THE COSTS OF AFDC TO THE STATE WOULD INCREASE BY
20%.  THERE WAS AN INCENTIVE TO CHANGE TO A PERCENTAGE-REDUCTION SYSTEM
TO AVOID THIS.  UNTIL RECENTLY, NO ONE THOUGHT THAT THE STATE COULD
CHANGE TO THE FOLLOWING SYSTEM IN ORDER TO REFLECT THE RISE IN THE COST
OF LIVING:     NEW NEED . . . $240 

NEW MAXIMUM GRANT . . . $120 

FAMILY INCOME . . . $100 

STATE AID . . . $20     TO STATE IT MORE SIMPLY, THE MAXIMUM GRANT
IS SIMILAR TO, AND DESIGNED TO SERVE THE SAME PURPOSES AS, THE
PERCENTAGE-REDUCTION FACTOR.  IF THE PERCENTAGE-REDUCTION FACTOR CAN BE
APPLIED TO NEED BEFORE INCOME IS SUBTRACTED, IT IS IMPOSSIBLE TO SEE
WHY INCOME COULD NOT BE SET OFF AGAINST MAXIMUM GRANTS.  TRUE, TEXAS
DID NOT CHOOSE THIS ALTERNATIVE, BUT IT IS AVAILABLE UNDER TODAY'S
DECISION.  A STATE CAN, BY CHANGING THE MANNER IN WHICH IT SETS OFF
INCOME, ABSORB AN INCREASE IN MAXIMUMS AND END UP PAYING LESS.  WHERE
IS THE INCENTIVE NOW TO ADOPT PERCENTAGE-REDUCTION SYSTEMS? 

THIS ILLUSTRATION IS MUCH MORE THAN MERE SPECULATION AS TO WHAT
MIGHT HAPPEN UNDER TODAY'S DECISION.  THE ILLUSTRATION REPRESENTS WHAT
AT LEAST ONE STATE-- CALIFORNIA-- HAS ALREADY DONE, OR TRIED TO DO.
ONLY VERY RECENTLY, THE CALIFORNIA SUPREME COURT STRUCK DOWN THE
STATE'S AFDC SCHEME FOR NONCOMPLIANCE WITH THE FEDERAL STATUTE.  VILLA
V. HALL, 6 CAL.3D 227, 490 P.2D 1148 (1971). 

THE CALIFORNIA SUPREME COURT, HAVING BEEN REFERRED TO THE DISTRICT
COURT OPINION IN THE INSTANT CASE AS SUPPORT FOR CALIFORNIA'S SYSTEM,
TOOK THE POSITION THAT NEITHER THE CALIFORNIA NOR THE TEXAS SYSTEM
COULD STAND IN LIGHT OF ROSADO.  I AGREE.  INDEED, THE UNITED STATES IN
ITS MEMORANDUM AS AMICUS CURIAE IN THIS CASE (P. 5) CONCEDES THAT IF
ROSADO REPRESENTS "A BINDING CONSTRUCTION OF THE ACT, APPELLANTS ARE
THUS ENTITLED TO PREVAIL."  THE GOVERNMENT PROCEEDS TO ARGUE THAT THE
QUESTION PRESENTED HERE WAS NOT BEFORE US IN ROSADO.  IBID.  I MUST
AGREE WITH APPELLANTS THAT THE GOVERNMENT'S ARGUMENT IS DISINGENUOUS,
AT BEST.  SEE BRIEF FOR APPELLANTS 80.  THE QUESTION OF WHAT SEC.
402(A)(23) MEANS WAS MOST CERTAINLY BEFORE US IN ROSADO.  IT WAS, IN
FACT, ALL THAT WAS BEFORE US.  IN THAT CASE WE REJECTED THE BROAD
CONSTRUCTION THAT THE DISTRICT COURT HAD GIVEN THE SECTION, BUT WE
ENDEAVORED AS BEST WE COULD TO EXTRACT SOME MEANING FROM ITS MUDDLED
HISTORY.  THE UNITED STATES SEEKS HERE TO HAVE US DO WHAT WE EXPLICITLY
SAID WE WOULD NOT DO IN ROSADO, I.E., INTERPRET THE SECTION IN SUCH A
WAY THAT IT IS NOTHING MORE THAN A "MEANINGLESS EXERCISE IN
'BOOKKEEPING.'"  397 U.S.,AT 413.  IF WE WERE NOT MAKING A "BINDING
CONSTRUCTION" OF THE STATUTE IN ROSADO, IT IS IMPOSSIBLE FOR ME TO
ASCERTAIN WHAT WE WERE DOING.  HENCE, I AGREE WITH THE GOVERNMENT THAT
APPELLANTS ARE ENTITLED TO PREVAIL. 

SURPRISINGLY ENOUGH, THE COURT MAKES EVEN SHORTER SHRIFT OF ROSADO
THAN DOES THE GOVERNMENT.  IN A FOOTNOTE, THE COURT STATES THAT WIDENED
ELIGIBILITY AND THE OTHER EFFECTS THAT ROSADO SAID WERE INTENDED BY
CONGRESS WHEN IT ENACTED SEC. 402(A)(23) WERE MERELY POSSIBLE EFFECTS
OF THE STATUTE, NOT NECESSARY ONES.  I SUBMIT THAT THIS CAVALIER
TREATMENT OF ROSADO IS COMPLETELY UNWARRANTED.  ROSADO WAS NOT AN EASY
CASE.  THE ABSENCE OF A CLEAR LEGISLATIVE HISTORY FORCED US TO EXAMINE
THE "MUTED STRAINS" OF THE CONGRESSIONAL VOICE AND TO STRUGGLE TO
"DISCERN THE THEME IN THE CACOPHONY OF POLITICAL UNDERSTANDING."  397
U.S.,AT 412.  UNLIKE THE COURT IN THIS CASE, WHICH SIMPLY LOOKS TO SEE
IF THE LEGISLATIVE HISTORY IS DISTORTED ENOUGH TO BE IGNORED, THE COURT
IN ROSADO CAREFULLY SCRUTINIZED EVERY ASPECT OF THE HISTORY IN ORDER TO
PERCEIVE THE CONGRESSIONAL INTENT.  THAT WAS A DIFFICULT TASK, BUT NOT
AN IMPOSSIBLE ONE.  THE BALANCE THAT WE SAW CONGRESS STRIKING IN
REDUCING PAYMENTS WHILE INCREASING ELIGIBILITY HAS ALREADY BEEN
DESCRIBED.  WE RELIED ON THIS BALANCE TO DECIDE ROSADO.  WE WERE NOT
MERELY SPECULATING AS TO THE INTENT OF CONGRESS; WE WERE HOLDING THAT
THERE WAS A SPECIFIC INTENT THAT WAS BINDING IN THAT CASE.  THAT
DECISION, IN MY VIEW, IS ALSO BINDING HERE.  THIS IS MY FIRST
DISAGREEMENT WITH THE MAJORITY. 

C. THE SECOND PROVISION IN THE AFDC LEGISLATION THAT I BELIEVE IS
RELEVANT IS SEC. 402(A)(8) OF THE SOCIAL SECURITY ACT, AS AMENDED, 81
STAT. 881, 42 U.S.C. 602(A)(8), WHICH WAS ADDED TO THE AFDC STATUTE
ALONG WITH SEC. 402(A)(23) IN 1968.  THE PURPOSE OF THIS SECTION IS TO
ENCOURAGE AFDC RECIPIENTS TO SEEK PRIVATE EMPLOYMENT AND TO END THEIR
NEED FOR PUBLIC ASSISTANCE.  H.R. REP. NO. 544, 90TH CONG., 1ST SESS.
(1967); S. REP. NO. 744, 90TH CONG., 1ST SESS. (1967).  TO ACCOMPLISH
THIS OBJECTIVE THE STATUTE PROVIDES THAT ALL OF THE EARNED INCOME OF
EACH DEPENDENT CHILD RECEIVING AFDC AID WHO IS A FULL OR PART-TIME
STUDENT, AND A PORTION OF THE EARNED INCOME OF CERTAIN OTHER RELATIVES,
WILL BE DISREGARDED IN THE STATE'S DETERMINATION OF NEED.  WE ONLY
RECENTLY HAD OCCASION TO CONSIDER THE EFFECT OF THIS PROVISION IN
ENGELMAN V. AMOS, 404 U.S. 23 (1971). 

IN ENGELMAN WE CONSIDERED A NEW JERSEY SCHEME FOR ADMINISTERING AFDC
FUNDS THAT ESTABLISHED INCOME CEILINGS FOR FAMILIES.  WHEN THE
FAMILIES' INCOMES EXCEEDED THE CEILINGS THEY NO LONGER WERE ELIGIBLE
FOR AFDC AID.  THE DISTRICT COURT ANALOGIZED ENGELMAN TO ROSADO V.
WYMAN, SUPRA, AND DETERMINED THAT THE STATE'S SYSTEM WAS INCONSISTENT
WITH THE FEDERAL ACT.  333 F.SUPP.  1109.  THE DISTRICT COURT
RECOGNIZED THAT THE 1968 AMENDMENTS TO THE AFDC LEGISLATION WERE
DESIGNED TO INCREASE ELIGIBILITY FOR AFDC AID, NOT TO DECREASE IT.
BECAUSE THE DISTRICT COURT VIEWED SEC. 402(A)(8) AS REQUIRING A STATE
TO DISREGARD CERTAIN KINDS OF INCOME IN DETERMINING ELIGIBILITY FOR
AID, THE DISTRICT COURT STRUCK DOWN THE NEW JERSEY SCHEME, IN EFFECT
HOLDING THAT NEW JERSEY COULD NOT EVADE THE INCOME DISREGARD BY
IMPOSING AN INCOME CEILING NOT CONTEMPLATED BY CONGRESS.  FAMILIES THAT
EXCEEDED THE STATE'S INCOME CEILINGS WERE STILL ENTITLED TO AFDC AID SO
LONG AS THEIR INCOME, EXCLUDING INCOME COVERED BY SEC. 402(A)(8), DID
NOT EXCEED THE STATE'S STANDARD OF NEED.  THE EFFECT OF THE DECISION
WAS TO INCREASE THE CLASS OF PERSONS ELIGIBLE FOR AFDC AID.  WE
AFFIRMED THE DECISION WITHOUT EVEN HEARING ARGUMENT. 

BOTH "THE NEW JERSEY AND THE TEXAS PROVISIONS . . . APPEAR TO HAVE
BEEN ANIMATED BY THE SAME DESIRE . . . . "  MEMORANDUM FOR THE UNITED
STATES AS AMICUS CURIAE 11.  BOTH SEEK TO LIMIT THE NUMBER OF AFDC
RECIPIENTS, AND BOTH VIOLATE THE FEDERAL STATUTE.  INDEED, THE VERY
PURPOSE OF SEC. 402(A)(8)-- TO ENCOURAGE PEOPLE TO WORK BY PERMITTING
THEM TO CONTINUE TO DRAW AFDC FUNDS-- SHOWS THAT CONGRESS WANTED AS
MANY NEEDY PEOPLE AS POSSIBLE TO BE PART OF THE PROGRAM. 

THE TEXAS SCHEME CERTAINLY DOES NOT VIOLATE SEC. 402(A)(8) IN THE
WAY THAT THE NEW JERSEY SCHEME DID, FOR AS FAR AS WE KNOW, TEXAS
EXCLUDES INCOME AS REQUIRED BY THE STATUTE WHEN COMPUTING ELIGIBILITY. 
BUT, AS THE OPINION OF THE COURT INDICATES, THE TEXAS SYSTEM HAS A
FAULT NOT FOUND IN NEW JERSEY:  I.E., TEXAS DISCOURAGES RECIPIENTS FROM
EARNING OUTSIDE INCOME.  THIS IS WHY I BELIEVE THAT TEXAS VIOLATES THE
SPIRIT OF THE FEDERAL STATUTE. 

IT MIGHT BE ARGUED THAT CONGRESS ONLY SOUGHT TO ENCOURAGE CERTAIN
AFDC RECIPIENTS TO EARN INCOME AND ONLY IN A CERTAIN AMOUNT-- THE
PERSONS AND AMOUNTS SPECIFIED IN SEC. 402(A)(8).  THIS ARGUMENT MIGHT
BE PERSUASIVE BUT FOR ONE FACT-- CONGRESS NEVER HAD ANY IDEA THAT A
STATE WOULD ATTEMPT TO EMPLOY A SYSTEM SUCH AS THAT USED BY TEXAS. 
NOWHERE IN THE LEGISLATIVE HISTORY IS THERE ANY MENTION OF SUCH A
SYSTEM.  SEE, E.G., HOUSE COMMITTEE ON WAYS AND MEANS, SECTION-BY
1967).  CONGRESS WAS, IN FACT, INFORMED BY HEW THAT A DIFFERENT
STANDARD FROM THAT USED BY TEXAS WAS REQUIRED.  SEE HEARINGS ON H.R.
12080 BEFORE THE SENATE COMMITTEE ON FINANCE, 90TH CONG., 1ST SESS.,
PT. 1, PP. 255-265 (TESTIMONY OF WILBUR COHEN).  UNTIL VERY RECENTLY,
EVERY INDICATION BY HEW WAS THAT THE TEXAS SYSTEM WOULD BE UNLAWFUL. 
IN LIGHT OF THE STATE OF IGNORANCE IN WHICH CONGRESS FOUND ITSELF, IT
IS NOT SURPRISING THAT THERE IS NO SPECIFIC REJECTION OF THE TEXAS
SYSTEM IN THE 1968 AMENDMENTS.  BUT SEC. 402(A)(8) AND EVERYTHING IN
THE LEGISLATIVE HISTORY CERTAINLY INDICATE THAT CONGRESS HAD A STRONG
DESIRE TO ENCOURAGE AFDC RECIPIENTS TO WORK.  BECAUSE THE TEXAS PROGRAM
IS INCONSISTENT WITH THIS DESIRE, I BELIEVE IT IS ILLEGAL. 

THIS IS THE SECOND REASON FOR MY DISAGREEMENT WITH THE COURT. 

D. ANOTHER SECTION OF THE STATUTE THAT MUST BE EXAMINED IS SEC.
402(A)(10) OF THE SOCIAL SECURITY ACT, 64 STAT. 550, AS AMENDED, 42
U.S.C. 602(A)(10), WHICH REQUIRES THAT A STATE AFDC PLAN SHALL 

"PROVIDE . . . THAT ALL INDIVIDUALS WISHING TO MAKE APPLICATION FOR
AID TO FAMILIES WITH DEPENDENT CHILDREN SHALL HAVE OPPORTUNITY TO DO
SO, AND THAT AID TO FAMILIES WITH DEPENDENT CHILDREN SHALL BE FURNISHED
WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS."  THE COURT
STATES THAT THE PRIMARY PURPOSE OF THIS SECTION WAS TO OUTLAW THE USE
OF WAITING LISTS AS A MEANS OF MINIMIZING A STATE'S WELFARE
EXPENDITURES.  THERE IS CLEARLY SUPPORT FOR THIS VIEW, AS THE COURT
NOTED IN DANDRIDGE V. WILLIAMS, 397 U.S. 471, 481 N. 12 (1970).  BEFORE
THE COURT IN DANDRIDGE WAS THE QUESTION WHETHER MAXIMUM-GRANT
LIMITATIONS WERE INCONSISTENT WITH THE FEDERAL STATUTE.  THE COURT
UPHELD THE MAXIMUMS, BUT SAID IN THE COURSE OF SO DOING:  "SO LONG AS
SOME AID IS PROVIDED TO ALL ELIGIBLE FAMILIES AND ALL ELIGIBLE
CHILDREN, THE STATUTE ITSELF IS NOT VIOLATED."  ID., AT 481.  THIS IS
PLAINLY DICTUM, BUT I BELIEVE THAT IT IS WELL-CONSIDERED DICTUM THAT
SHOULD BE FOLLOWED IN THIS CASE. 

IT MUST BE REMEMBERED THAT DANDRIDGE AND ROSADO WERE DECIDED ON THE
SAME DAY.  THUS, THE COURT ASSUMED IN DANDRIDGE THAT THE 1968
AMENDMENTS TO THE AFDC LEGISLATION EXPANDED THE LIST OF ELIGIBLE
RECIPIENTS IN THE MANNER SUGGESTED IN ROSADO.  THE COURT WAS ALSO AWARE
IN DANDRIDGE THAT SEC. 402(A)(7) OF THE SOCIAL SECURITY ACT, AS
AMENDED, 53 STAT. 1379, 42 U.S.C. 602(A)(7), HAD BEEN PART OF THE AFDC
STATUTE SINCE 1939.  THAT SECTION PROVIDES THAT 

"EXCEPT AS MAY BE OTHERWISE PROVIDED (IN SEC. 402(A)(8), DISCUSSED,
SUPRA) . . . THE STATE AGENCY SHALL, IN DETERMINING NEED, TAKE INTO
CONSIDERATION ANY OTHER INCOME AND RESOURCES OF ANY CHILD OR RELATIVE
CLAIMING AID TO FAMILIES WITH DEPENDENT CHILDREN . . . . " THE COURT
ASSUMED, THEREFORE, THAT IN OFFERING AID A STATE WOULD FIRST SET A
STANDARD OF NEED AND THEN EXAMINE THE INCOME LEVELS OF APPLICANTS FOR
AID.  ANYONE WHOSE INCOME WAS LESS THAN THE STANDARD OF NEED WOULD BE
ELIGIBLE FOR ASSISTANCE, OR SO THE COURT ASSUMED.  DANDRIDGE, OF
COURSE, ESTABLISHED THAT THE AID THAT MIGHT BE FORTHCOMING DID NOT HAVE
TO EQUAL NEED AND THAT LARGE FAMILIES COULD GET PROPORTIONATELY LESS
AID THAN SMALL FAMILIES.  JUST AS IN ROSADO, THE COURT IN DANDRIDGE
VIEWED THE INTENT OF CONGRESS TO BE TO AID AS MANY NEEDY PEOPLE AS
POSSIBLE, RATHER THAN TO OFFER AS MUCH AID AS POSSIBLE TO A LESSER
NUMBER OF PEOPLE.  IN LIGHT OF THIS, I BELIEVE THAT TODAY'S DECISION
VIOLATES THE SPIRIT OF DANDRIDGE, AS WELL AS THE HOLDING OF ROSADO. 

MOREOVER, IN MY VIEW, SEC. 402(A)(7) TELLS THE STATES HOW TO COMPUTE
ELIGIBILITY, AND THAT SECTION DOES NOT ALLOW FOR THE TEXAS SCHEME. 
DESPITE THE POSITION OF THE GOVERNMENT IN THIS CASE, I FIND SUPPORT FOR
MY READING OF SEC. 402(A)(7) IN HEW'S OWN REGULATIONS, ESPECIALLY 45
CFR 233.20(A)(2), 233.20(A)(3)(II), WHICH INDICATE TO ME THAT INCOME IS
TO BE SUBTRACTED FROM THE STANDARD OF NEED BEFORE ANY DETERMINATION IS
MADE AS TO HOW MUCH AID THE STATE WILL GIVE. 

BECAUSE I BELIEVE THE TEXAS SYSTEM VIOLATES SEC. 402(A)(7), IT SEEMS
TO ME THAT ELIGIBLE PERSONS ARE BEING DENIED AID IN VIOLATION OF SEC.
402(A)(10), WHICH REQUIRES THAT AID BE FURNISHED TO ALL ELIGIBLE
PERSONS PROMPTLY.  FOR ME, THIS CASE IS NO DIFFERENT FROM KING V.
SMITH, 392 U.S. 309 (1968) (STRIKING DOWN SUBSTITUTE-FATHER REGULATION)
OR TOWNSEND V. SWANK, 404 U.S. 282 (1971) (STRIKING DOWN RESTRICTION ON
RECEIPT OF AID BY COLLEGE STUDENTS).  THE STATE PROCEDURE DENIES
ELIGIBLE PERSONS AID, AND, REGARDLESS OF THE STATE'S PURPOSES, THE
PROCEDURE CANNOT STAND IN CONFLICT WITH THE FEDERAL STATUTE. 

I DISAGREE WITH THE COURT A THIRD TIME. 

E. THE LAST PORTION OF THE FEDERAL STATUTE THAT I BELIEVE SHOULD BE
CONSIDERED IS THAT PORTION DEALING WITH THE SOCIAL SERVICES THAT ARE
AVAILABLE TO AFDC RECIPIENTS.  SEE, E.G., 42 U.S.C. 602(A)(14), (15)
(ASSISTANCE IN FAMILY PLANNING AND CHILD-WELFARE SERVICES; ASSISTANCE
IN ENTERING THE WORK FORCE AND REDUCING THE INCIDENCE OF BIRTHS OUT OF
WEDLOCK); 42 U.S.C. 602(A)(19), 632 (EMPLOYMENT TRAINING PROGRAMS); 42
U.S.C. 1396AA)(10) (MEDICAL ASSISTANCE).  CONGRESS KEYED ALL OF THESE
PROVISIONS TO PERSONS OR FAMILIES THAT WERE RECEIVING AID.  BY LIMITING
THE NUMBER OF SUCH PERSONS AND FAMILIES RECEIVING AID, TEXAS HAS ALSO
LIMITED THE AVAILABILITY OF THESE SOCIAL SERVICES.  AT LEAST ONE OTHER
COURT HAS CONCLUDED THAT 

" . . . CONGRESS'S MAJOR CONCERN WAS THE PROVISION OF FAMILY
COUNSELING AND REHABILITATION SERVICES, WORK INCENTIVES, AND FAMILY
PLANNING PROGRAMS TO REDUCE OUT-OF-WEDLOCK BIRTHS, FOR ALL PERSONS IN
THE FAMILY, IN ORDER TO PROMOTE SELF-SUPPORT AND CHILD DEVELOPMENT AND
TO STRENGTHEN FAMILY LIFE . . . . BY MAKING THOSE WITH MARGINAL INCOMES
ELIGIBLE FOR AFDC BY RAISING THE STANDARD OF NEED, MORE PERSONS WOULD
BE ELIGIBLE FOR SUCH SERVICES, WHICH CONGRESS CONSIDERED VITAL TO CUT
DOWN IN THE LONG RUN THE NUMBERS DEPENDENT ON WELFARE."  LAMPTON V.
BONIN, 304 F.SUPP.,AT 1389.  WE SUGGESTED THE SAME THING IN ROSADO, 397
U.S.,AT 413.  WHILE THE COURT RECOGNIZES THAT THE TEXAS SYSTEM DEPRIVES
PERSONS WITH AN "UNMET NEED" OF AN OPPORTUNITY TO UTILIZE THESE
SERVICES (N. 10) AND THUS RELEGATES THESE PERSONS TO PERPETUAL
DEPENDENCE ON WELFARE, THE REALIZATION IS APPARENTLY A SOURCE OF NO
CONCERN.  BUT IT WAS A SOURCE OF TREMENDOUS CONCERN TO CONGRESS.  BUT
IT WAS A SOURCE OF TREMENDOUS CONCERN TO CONGRESS.  THE VALUE OF
MEDICAL ASSISTANCE ALONE TO AN AVERAGE TEXAS AFDC FAMILY IS IN THE
RANGE OF $50-$60 PER MONTH.  MEMORANDUM FOR THE UNITED STATES AS AMICUS
CURIAE 7 N. 5.  SINCE NEEDY FAMILIES ARE RENDERED MORE NEEDY BY TEXAS'
SYSTEM, THEIR ABILITY TO ESCAPE THE CONFINES OF THE WELFARE ROLLS IS
SUBSTANTIALLY IMPAIRED.  AT THE SAME TIME, THE GOALS OF CONGRESS AS
DESCRIBED IN THE PRECEDING QUOTATION ARE ALSO IMPAIRED.  THERE IS NO
REASON, NOR ANY JUSTIFICATION, FOR READING THE STATUTE THIS WAY. 

SINCE I BELIEVE THAT CONGRESS INTENDED THAT AS MANY NEEDY PERSONS AS
POSSIBLE BE PERMITTED TO AVAIL THEMSELVES OF THE VARIOUS SERVICES
PROVIDED OR IMPROVED IN THE 1968 AMENDMENTS, I AGAIN DISAGREE WITH THE
CONCLUSIONS OF THE COURT. 

F. IN CONCLUDING MY ANALYSIS OF THIS ASPECT OF TEXAS'  PERCENTAGE
REDUCTION SYSTEM, I ADD ONE FINAL NOTE.  THUS FAR I HAVE CONFINED
MYSELF TO EXAMINING THE SPECIFIC PROVISIONS OF THE AFDC LEGISLATION. 
IN ATTEMPTING TO FOCUS ON EACH SECTION INDIVIDUALLY IN ORDER TO
DETERMINE ITS ROLE IN THE STATUTORY SCHEME, SOMETHING OF THE GENERAL
FLAVOR OF THE OVERALL LEGISLATION IS UNDOUBTEDLY LOST.  THAT FLAVOR, IT
SEEMS TO ME, IS TO ASSIST NEEDY FAMILIES TO MAINTAIN STRONG FAMILY
BONDS AND TO ASSIST NEEDY INDIVIDUALS TO REALIZE THEIR POTENTIAL AS
UNIQUE HUMAN BEINGS BY PROVIDING THEM WITH THE BASIC NECESSITIES OF
LIFE, ALONG WITH INCENTIVES AND TRAINING TO ENCOURAGE THEM TO WORK TO
HELP THEMSELVES.  THE TEXAS SYSTEM NEGATES THE SALUTARY ASPECTS OF THE
LEGISLATION BY DETERRING THE NEEDY FROM WORKING, BY DEPRIVING THE NEEDY
OF SOCIAL SERVICES, AND BY EXCLUDING SOME NEEDY FROM ANY AFDC AID
WHATSOEVER.  THERE IS NO CONCEIVABLE REASON TO PERMIT TEXAS TO SUBVERT
THE AIMS OF CONGRESS IN THIS WAY. 

        II 

APPELLANTS ALSO CHALLENGE THE PERCENTAGE-REDUCTION FIGURE ITSELF. 
IT IS AGREED THAT TEXAS HAS ESTABLISHED AN IDENTICAL STANDARD OF NEED
FOR THE FOUR SOCIAL WELFARE PROGRAMS THAT IT ADMINISTERS-- OLD AGE
ASSISTANCE (OAA), AID TO THE BLIND (AB), AID FOR THE PERMANENTLY AND
TOTALLY DISABLED (APTD), AND AFDC.  BUT TEXAS PROVIDES 100% OF
RECOGNIZED NEED TO THE AGED AND 95% TO THE DISABLED AND THE BLIND,
WHILE IT PROVIDES ONLY 75% TO AFDC RECIPIENTS.  IT IS THIS DISPARITY TO
WHICH APPELLANTS ALSO OBJECT. 

A. APPELLANTS BASE THEIR PRIMARY ATTACK ON THE FOURTEENTH AMENDMENT;
THEY ARGUE THAT THE PERCENTAGE DISTINCTIONS BETWEEN THE OTHER WELFARE
PROGRAMS AND AFDC REFLECT A RACIALLY DISCRIMINATORY MOTIVE ON THE PART
OF TEXAS OFFICIALS.  THUS, THEY ARGUE THAT THERE IS A VIOLATION OF THE
EQUAL PROTECTION CLAUSE.  I BELIEVE THAT IT IS UNNECESSARY TO REACH THE
CONSTITUTIONAL ISSUE THAT APPELLANTS RAISE, AND, THEREFORE, I OFFER NO
OPINION ON ITS ULTIMATE MERITS.  I DO WISH TO MAKE IT CLEAR, HOWEVER,
THAT I DO NOT SUBSCRIBE IN ANY WAY TO THE MANNER IN WHICH THE COURT
TREATS THE ISSUE. 

IF I WERE TO FACE THIS QUESTION, I WOULD CERTAINLY HAVE MORE
DIFFICULTY WITH IT THAN EITHER THE DISTRICT COURT HAD OR THAN THIS
COURT SEEMS TO HAVE.  THE RECORD CONTAINS NUMEROUS STATEMENTS BY STATE
OFFICIALS TO THE EFFECT THAT AFDC IS FUNDED AT A LOWER LEVEL THAN THE
OTHER PROGRAMS BECAUSE IT IS NOT A POLITICALLY POPULAR PROGRAM.  THERE
IS ALSO EVIDENCE OF A STIGMA THAT SEEMINGLY ATTACHES TO AFDC RECIPIENTS
AND NO OTHERS.  THIS COURT NOTED IN KING V. SMITH, 392 U.S.,AT 322,
THAT AFDC RECIPIENTS WERE OFTEN FROWNED UPON BY THE COMMUNITY.  THE
EVIDENCE ALSO SHOWS THAT 87% OF THE AFDC RECIPIENTS IN TEXAS ARE EITHER
NEGRO OR MEXICAN-AMERICAN.  YET, BOTH THE DISTRICT COURT AND THIS COURT
HAVE LITTLE DIFFICULTY IN CONCLUDING THAT THE FACT THAT AFDC IS
POLITICALLY UNPOPULAR AND THE FACT THAT AFDC RECIPIENTS ARE DISFAVORED
BY THE STATE AND ITS CITIZENS, HAVE NOTHING WHATSOEVER TO DO WITH THE
RACIAL MAKEUP OF THE PROGRAM.  THIS CONCLUSION IS NEITHER SO APPARENT,
NOR SO CORRECT IN MY VIEW. 

MOREOVER, BECAUSE I FIND THAT EACH ONE OF THE STATE'S REASONS FOR
TREATING AFDC DIFFERENTLY FROM THE OTHER PROGRAMS DISSOLVES UNDER CLOSE
SCRUTINY, AS IS DEMONSTRATED, INFRA, I AM NOT AT ALL CERTAIN WHO SHOULD
BEAR THE BURDEN OF PROOF ON THE QUESTION OF RACIAL DISCRIMINATION.  NOR
AM I SURE THAT THE "TRADITIONAL" STANDARD OF REVIEW WOULD GOVERN THE
CASE AS THE COURT HOLDS.  IN DANDRIDGE V. WILLIAMS, SUPRA, ON WHICH THE
COURT RELIES FOR THE PROPOSITION THAT STRICT SCRUTINY OF THE STATE'S
ACTION IS NOT REQUIRED, THE COURT NEVER FACED A QUESTION OF POSSIBLE
RACIAL DISCRIMINATION.  PERCENTAGES THEMSELVES ARE CERTAINLY NOT
CONCLUSIVE, BUT AT SOME POINT A SHOWING THAT STATE ACTION HAS A
DEVASTATING IMPACT ON THE LIVES OF MINORITY RACIAL GROUPS MUST BE
RELEVANT. 

THE COURT REASONS BACKWARDS TO CONCLUDE THAT BECAUSE APPELLANTS HAVE
NOT PROVED RACIAL DISCRIMINATION, A LESS STRICT STANDARD OF REVIEW IS
NECESSARILY TOLERATED.  IN MY VIEW, THE FIRST QUESTION THAT MUST BE
ASKED IS WHAT IS THE STANDARD OF REVIEW AND THE SECOND QUESTION IS
WHETHER RACIAL DISCRIMINATION HAS BEEN PROVED UNDER THE STANDARD.  IT
SEEMS ALMOST TOO PLAIN FOR ARGUMENT THAT THE STANDARD OF REVIEW
DETERMINES IN LARGE MEASURE WHETHER OR NOT SOMETHING HAS BEEN PROVED. 
WHITCOMB V. CHAVIS, 403 U.S. 124, 149 (1971); GOMILLION V. LIGHTFOOT,
364 U.S. 339 (1960). 

THESE ARE ALL COMPLEX PROBLEMS, AND I DO NOT PROPOSE TO RESOLVE ANY
OF THEM HERE.  IT IS SUFFICIENT FOR ME TO NOTE THAT I BELIEVE THAT THE
CONSTITUTIONAL ISSUE RAISED BY APPELLANTS NEED NOT BE REACHED, AND THAT
IN CHOOSING TO REACH IT, THE COURT HAS SO GREATLY OVERSIMPLIFIED THE
ISSUE AS TO DISTORT IT. 

B. APPELLANTS ALSO CHALLENGE THE DISTINCTION BETWEEN PROGRAMS UNDER
TITLE VI OF THE 1964 CIVIL RIGHTS ACT, 42 U.S.C. 2000D: 

     "NO PERSON IN THE UNITED STATES SHALL, ON THE GROUND OF RACE,

 COLOR, OR NATIONAL ORIGIN, . . .BE SUBJECTED TO DISCRIMINATION

  UNDER ANY PROGRAM OR ACTIVITY RECEIVING FEDERAL FINANCIAL

  ASSISTANCE." 

ONLY LAST TERM IN GRIGGS V. DUKE POWER CO., 401 U.S. 424 (1971), WE HAD
OCCASION TO STRIKE DOWN UNDER TITLE VII OF THE 1964 ACT, 42 U.S.C.
2000E, EMPLOYMENT PRACTICES THAT HAD A PARTICULARLY HARSH IMPACT ON ONE
MINORITY RACIAL GROUP AND THAT COULD NOT BE JUSTIFIED BY BUSINESS
NECESSITY.  WE INDICATED IN THAT CASE THAT "GOOD INTENT OR ABSENCE OF
DISCRIMINATORY INTENT DOES NOT REDEEM EMPLOYMENT PROCEDURES OR TESTING
MECHANISMS THAT OPERATE AS 'BUILT-IN HEADWINDS' FOR MINORITY GROUPS." 
ID., AT 432.  WE SAID, IN FACT, THAT "CONGRESS DIRECTED THE THRUST OF
THE ACT TO THE CONSEQUENCES OF EMPLOYMENT PRACTICES, NOT SIMPLY THE
MOTIVATION."  IBID.  THAT DECISION EVEN PLACED THE BURDEN ON THE
EMPLOYER "OF SHOWING THAT ANY GIVEN REQUIREMENT MUST HAVE A MANIFEST
RELATIONSHIP TO THE EMPLOYMENT IN QUESTION."  IBID. 

THERE HAS BEEN A PAUCITY OF LITIGATION UNDER TITLE VI, AND I AM NOT
PREPARED AT THIS POINT TO SAY WHETHER OR NOT A SIMILAR ANALYSIS TO THAT
USED IN GRIGGS SHOULD BE USED IN TITLE VI CASES.  THIS IS A QUESTION OF
FIRST IMPRESSION IN THIS COURT, AND I DO NOT THINK WE HAVE TO REACH IT
IN THIS CASE.  I INCLUDE THIS SECTION ONLY TO MAKE PLAIN THAT I DO NOT
NECESSARILY REJECT THE ARGUMENT MADE BY APPELLANTS; I SIMPLY DO NOT
REACH IT. 

C. THIS BRINGS ME TO WHAT I BELIEVE DISPOSES OF THE QUESTION
PRESENTED:  THE DISPARITY BETWEEN THE VARIOUS SOCIAL WELFARE PROGRAMS
IS NOT PERMISSIBLE UNDER THE FEDERAL STATUTORY FRAMEWORK. 

THE FOUR SOCIAL WELFARE PROGRAMS OFFERED BY TEXAS ARE FUNDED IN PART
BY THE FEDERAL GOVERNMENT.  EACH PROGRAM IS GOVERNED BY A SEPARATE
STATUTE:  OAA, 42 U.S.C. 301 ET SEQ.; AFDC, 42 U.S.C. 601 ET SEQ.; AB,
42 U.S.C. 1201 ET SEQ.; APTD, 42 U.S.C. 1351 ET SEQ. NO STATE IS
COMPELLED TO PARTICIPATE IN ANY PROGRAM, AND ANY STATE THAT WANTS TO
PARTICIPATE CAN CHOOSE TO DO SO IN ONE, SEVERAL, OR ALL OF THE
PROGRAMS. 

THERE IS NO DOUBT THAT STATES ARE FREE TO CHOOSE WHETHER OR NOT TO
PARTICIPATE IN THESE PROGRAMS, AND IT IS ALSO CLEAR THAT EACH STATE HAS
CONSIDERABLE FREEDOM TO ALLOCATE WHAT IT WANTS TO ONE OR MORE PROGRAMS
BY ESTABLISHING DIFFERENT STANDARDS OF NEED TO COMPUTE ELIGIBILITY FOR
AID.  KING V. SMITH, 392 U.S.,AT 318-319.  IT IS ALSO TRUE, HOWEVER,
THAT THE BASIC AIMS OF THE FOUR PROGRAMS ARE IDENTICAL.  INDEED, WHEN
CONGRESS FIRST ENACTED THE PROGRAMS IN 1935, IT VIEWED THEM ALL AS
NECESSARY TO PROVIDE AID TO FAMILIES UNABLE TO OBTAIN INCOME FROM
PRIVATE EMPLOYMENT.  THE BENEFICIARIES OF THE VARIOUS PROGRAMS SHARED
THE BASIC CHARACTERISTICS OF NEED AND DEPENDENCE.  H.R. REP. NO. 615,
74TH CONG., 1ST SESS., 3.  WHILE THE PROGRAMS AS THEY NOW EXIST GO WELL
BEYOND MERELY FURNISHING FINANCIAL ASSISTANCE AS THEY DID ORIGINALLY,
THEY STILL MAINTAIN SIMILAR GOALS. 

MOREOVER, ALL FOUR PROGRAMS WERE SIMULTANEOUSLY AMENDED IN 1956 TO
PROVIDE FOR SOCIAL AND REHABILITATIVE SERVICES TO ENABLE ALL NEEDY
INDIVIDUALS TO ATTAIN THE MAXIMUM ECONOMIC AND PERSONAL INDEPENDENCE OF
WHICH THEY WERE CAPABLE.  EACH PROGRAM NOW REQUIRES A STATE TO
DESCRIBE, IN ITS PLAN FOR EACH SOCIAL WELFARE PROGRAM IT ADMINISTERS,
THE SERVICES IT OFFERS TO ACCOMPLISH THIS OBJECTIVE.  SEE 42 U.S.C.
302(A)(11); 602(A)(14); 1202(A)(12); 1352(A)(11). 

CONGRESS HAS GIVEN THE STATES AUTHORITY TO SET DIFFERENT STANDARDS
OF NEED FOR DIFFERENT PROGRAMS.  BUT WHERE, AS HERE, THE STATE
CONCLUDES THAT THE STANDARD OF NEED IS THE SAME FOR RECIPIENTS OF AID
UNDER THE FOUR DISTINCT STATUTES, IT IS MY OPINION THAT CONGRESS
REQUIRED THAT THE STATE TREAT ALL RECIPIENTS EQUALLY WITH RESPECT TO
ACTUAL AID.  IN OTHER WORDS, AS I READ THE FEDERAL STATUTES, THEY ARE
DESIGNED TO ACCOMPLISH THE SAME OBJECTIVES, ALBEIT FOR PERSONS
DISADVANTAGED BY DIFFERENT CIRCUMSTANCES. 

STATES CLEARLY HAVE THE FREEDOM TO MAKE A BONA FIDE DETERMINATION
THAT BLIND PERSONS HAVE A GREATER NEED THAN DEPENDENT CHILDREN, THAT
ADULTS HAVE A HIGHER STANDARD OF NEED THAN CHILDREN, THAT THE AGED HAVE
MORE NEED THAN THE BLIND, AND SO FORTH. 

BUT, IN THIS CASE, TEXAS MADE AN INDEPENDENT DETERMINATION OF NEED,
AND IT DETERMINED THAT THE NEED OF ALL RECIPIENTS WAS EQUAL.  IN THIS
CIRCUMSTANCE, I FIND NOTHING IN THE FEDERAL STATUTE TO ENABLE A STATE
TO FAVOR ONE GROUP OF RECIPIENTS BY SATISFYING MORE OF ITS NEED, WHILE
AT THE SAME TIME DENYING AN EQUALLY GREAT NEED OF ANOTHER GROUP.  THE
PURPOSES AND OBJECTIVES OF THE STATUTES ARE THE SAME, THOSE ELIGIBLE
FOR AID ARE SUFFERING EQUALLY, AND CONGRESS INTENDED THAT ONCE A STATE
CHOSE TO PARTICIPATE IN THE PROGRAMS SIMILARLY SITUATED PERSONS WOULD
BE TREATED SIMILARLY. 

EVERYTHING IN THIS RECORD INDICATES THAT THE RECIPIENTS OF THE
VARIOUS FORMS OF AID ARE IDENTICALLY SITUATED.  ALTHOUGH THE DISTRICT
COURT ACCEPTED THE STATE'S CONTENTIONS THAT THERE ARE DIFFERENCES
BETWEEN AFDC CHILDREN AND OTHER RECIPIENTS WHICH WARRANTED DIFFERENT
TREATMENT UNDER THE FEDERAL STATUTES, I FIND EACH OF THE REASONS
OFFERED TOTALLY UNPERSUASIVE. 

FIRST, TEXAS ARGUES THAT AFDC CHILDREN CAN BE EMPLOYED, WHEREAS
RECIPIENTS OF OTHER BENEFITS CANNOT BE.  ASSUMING ARGUENDO THAT THIS IS
TRUE, IT IS AN ARGUMENT THAT FALLS OF ITS OWN WEIGHT.  WHATEVER INCOME
THE CHILDREN EARN IS SUBTRACTED FROM NEED, OR IT IS EXCLUDED FROM
CONSIDERATION UNDER SEC. 402(A)(8) TO ENCOURAGE SELF-HELP.  THUS,
INCOME IS ALREADY REFLECTED IN THE COMPUTATION OF PAYMENTS, OR IT IS
EXCLUDED IN ORDER THAT A SPECIFIC LEGISLATIVE GOAL MAY BE FURTHERED. 
THUS, INCOME IS IRRELEVANT IN ANY EXPLANATION OF THE DIFFERENCES
BETWEEN THE PERCENTAGE REDUCTIONS APPLIED TO THE VARIOUS PROGRAMS.  IT
SHOULD ALSO BE NOTED THAT A RECIPIENT'S INCOME IS ALSO TAKEN INTO
CONSIDERATION IN PROGRAMS OTHER THAN AFDC.  SEE 42 U.S.C.
302(A)(10)(A); 1202(A)(8); 1352(A)(8). 

SECOND, THE STATE MAINTAINS THAT AFDC FAMILIES CAN SECURE HELP FROM
LEGALLY RESPONSIBLE RELATIVES MORE EASILY THAN RECIPIENTS UNDER OTHER
PROGRAMS.  ASSUMING AGAIN FOR PURPOSES OF DISCUSSION THAT THIS IS TRUE,
IT SHOULD BE PLAIN THAT ANY SUPPORT FROM ANY RELATIVES IS SUBTRACTED
FROM THE STATE'S GRANT.  MOREOVER, APPELLANTS PROPERLY POINT OUT THAT
RECIPIENTS OF AID IN NON-AFDC PROGRAMS OFTEN HAVE A SOURCE OF AID
UNAVAILABLE TO AFDC RECIPIENTS-- THE FEDERAL OLD AGE INSURANCE, 42
U.S.C. 201 ET SEQ. THUS, THERE IS NO SUBSTANCE TO THIS ARGUMENT. 

THIRD, TEXAS POINTS TO THE LIKELIHOOD OF FUTURE EMPLOYMENT FOR AFDC
RECIPIENTS, A LIKELIHOOD THAT IT SAYS IS NONEXISTENT FOR OLDER PERSONS
AND OTHERS WHO RECEIVE AID.  FEDERAL LAW PROVIDES THAT A STATE MAY ONLY
CONSIDER INCOME THAT IS CURRENTLY AVAILABLE IN ALLOCATING FUNDS.  45
CFR 233.20(A)(3)(II).  THIS CONTENTION IS THEREFORE IRRELEVANT. 

THE STATE MAKES ONLY TWO OTHER ARGUMENTS.  ONE HAS ALREADY BEEN
REJECTED.  TEXAS URGES THAT THE PURPOSES OF THE FEDERAL PROGRAMS
DIFFER, BUT THE HISTORY BELIES THIS CONTENTION.  THE OTHER IS THAT THE
NUMBERS OF AFDC RECIPIENTS IS RISING AND THIS PROGRAM SHOULD THEREFORE
BEAR THE BURDEN OF MONETARY LIMITATIONS.  THE OBVIOUS PROBLEM WITH THIS
ARGUMENT IS THAT ONE FUNDAMENTAL PURPOSE OF AFDC AID IS TO ENABLE
PEOPLE TO ESCAPE THE WELFARE ROLLS.  BUT, UNDER THE TEXAS SYSTEM, THE
AID IS PRESENTLY INSUFFICIENT, PEOPLE ARE UNABLE TO ESCAPE FROM
DEPENDENCY, AND THE ROLLS BECOME LARGER.  HAD TEXAS NOT FUNDED AFDC AT
A LOWER LEVEL THAN OTHER PROGRAMS, IT IS POSSIBLE THAT THE NUMBER OF
RECIPIENTS WOULD NOT HAVE GROWN SO LARGE.  THE STATE'S ARGUMENT IS A
SELF-FULFILLING PROPHECY ON WHICH IT CANNOT RELY TO PENALIZE AFDC
RECIPIENTS.  FURTHERMORE, THERE IS NOTHING IN THE FEDERAL LEGISLATION
TO INDICATE THAT AID IS TO BE REDUCED IN A PROGRAM MERELY BECAUSE THE
NUMBER OF BENEFICIARIES OF THAT PROGRAM INCREASES AT A MORE RAPID RATE
THAN IN OTHER PROGRAMS.  ON THE CONTRARY, CONGRESS HAS INDICATED THAT
INCREASED ELIGIBILITY FOR AFDC IS DESIRABLE, SEE 42 U.S.C. 602(A)(23);
ROSADO V. WYMAN, SUPRA.  IT WOULD BE EXTREME IRONY IF AFDC RECIPIENTS
WERE PENALIZED BY A STATE BECAUSE THEIR NUMBERS GREW IN ACCORDANCE WITH
CONGRESSIONAL INTENT.     THE CONCLUSION THAT I DRAW FROM THE STATUTES
IS THAT CONGRESS INTENDED EQUAL TREATMENT FOR ALL PERSONS SIMILARLY
SITUATED.  CONGRESS LEFT TO THE STATES THE DETERMINATION OF WHO WAS
SIMILARLY SITUATED BY PERMITTING STATES TO DETERMINE LEVELS OF NEED. 
SINCE TEXAS HAS DECIDED THAT AFDC RECIPIENTS HAVE PRECISELY THE SAME
NEED AS RECIPIENTS OF OTHER SOCIAL WELFARE BENEFITS, IT IS MY OPINION
THAT THE FEDERAL LEGISLATION REQUIRES EQUAL TREATMENT FOR ALL. 

THIS CONCLUSION FINDS SUPPORT IN THE LEGISLATIVE HISTORY OF THE 1950
AMENDMENTS TO THE SOCIAL WELFARE LEGISLATION.  IN THOSE AMENDMENTS
CONGRESS MADE CLEAR ITS INTENT TO PUT AFDC RECIPIENTS ON A PAR WITH
RECIPIENTS OF OTHER WELFARE AID. 

     "TODAY MORE THAN 1.1 MILLION CHILDREN UNDER 18 YEARS OF AGE
ARE

  RECEIVING AID TO DEPENDENT CHILDREN THROUGH THE STATE-FEDERAL

  PROGRAM BECAUSE ONE OR BOTH OF THEIR PARENTS ARE DEAD, ABSENT

  FROM THE HOME, OR INCAPACITATED.  THESE CHILDREN, REGARDLESS OF

  THE STATE IN WHICH THEY NOW LIVE, WILL SOMEDAY FIND THEIR PLACE

  IN THE PRODUCTIVE ACTIVITIES OF THE NATION AND, SHOULD THE

  NECESSITY ARISE, WILL TAKE PART IN DEFENDING OUR NATION.  MANY OF

THESE CHILDREN WILL BE SERIOUSLY HANDICAPPED AS ADULTS BECAUSE IN

  CHILDHOOD THEY ARE NOT RECEIVING PROPER AND SUFFICIENT FOOD,

  CLOTHING, MEDICAL ATTENTION, AND THE OTHER BARE NECESSITIES OF

  LIFE.  THE NATIONAL INTEREST REQUIRES THAT THE FEDERAL GOVERNMENT

  PROVIDE FOR DEPENDENT CHILDREN AT LEAST ON A PAR WITH ITS

  CONTRIBUTIONS TOWARD THE SUPPORT OF THE NEEDY AGED AND BLIND." 

  S. DOC. NO. 208, 80TH CONG., 2D SESS., 105. 

CONGRESS RECOGNIZED THAT "FAMILIES WITH DEPENDENT CHILDREN NEED AS MUCH
IN ASSISTANCE PAYMENTS AS DO AGED AND BLIND PERSONS."  ID., AT 106.  IT
CONCLUDED THAT SOUND NATIONAL POLICY WAS "FOR THE STATES TO PROVIDE
PAYMENTS FOR AID TO DEPENDENT CHILDREN COMPARABLE TO THOSE FOR THE
NEEDY AGED AND BLIND."  IBID.  IT IS EVIDENT THAT CONGRESS REJECTED THE
NOTION THAT WHERE AFDC RECIPIENTS HAD THE SAME NEED AS OTHER WELFARE
BENEFICIARIES, THEY SHOULD GET LESS MONEY.  AS SENATOR BENTON SAID ON
THE FLOOR OF THE SENATE: 

     "THERE SEEMS NO REASONABLE BASIS FOR SUCH INEQUITABLE
TREATMENT

  OF MOTHERS AND OF CHILDREN BY THE FEDERAL GOVERNMENT. 

     "ALL OF US WITH CHILDREN KNOW THAT IT COSTS AS MUCH IF NOT
MORE

 TO REAR CHILDREN IN HEALTH, DECENCY, AND SELF-RESPECT THAN TO

  MAINTAIN AN ADULT.  IT IS SURELY NO LESS IMPORTANT TO MAKE THIS

  INVESTMENT IN OUR FUTURE CITIZENS THAN IT IS TO PROVIDE DECENTLY

  FOR THOSE WHO HAVE RETIRED . . . . "  96 CONG.REC.  8813-8814. 

IN THE 1950 AMENDMENTS, CONGRESS INCREASED THE FEDERAL FUNDING OF AFDC
SO THAT ITS BENEFICIARIES WOULD RECEIVE TREATMENT EQUIVALENT TO THAT
RECEIVED BY BENEFICIARIES OF THE OTHER FEDERAL-STATE SOCIAL WELFARE
LEGISLATION.  WHERE THE NEEDS OF THE PEOPLE RECEIVING AID UNDER THE
VARIOUS PROGRAMS DIFFERED, CONGRESS RECOGNIZED THAT THE AMOUNT OF AID
FORTHCOMING SHOULD ALSO DIFFER.  BUT WHERE NEED WAS DETERMINED BY THE
STATE TO BE EQUAL FOR ALL RECIPIENTS, CONGRESS INTENDED THAT ALL SHOULD
RECEIVE AN EQUAL AMOUNT OF AID.  S. DOC. NO. 208, 80TH CONG., 2D SESS.,
108.  THERE IS ABSOLUTELY NO INDICATION IN ANY SUBSEQUENT CONGRESSIONAL
ACTION THAT THE INTENT OF CONGRESS HAS CHANGED. 

ACCORDINGLY, I WOULD REVERSE THE JUDGMENT OF THE DISTRICT COURT AND
REMAND THE CASE FOR FORMULATION OF RELIEF CONSISTENT WITH THIS
OPINION. 

STEVEN J. COLE ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE HENRY A. FREEDMAN, ED J. POLK, EDWARD V. SPARER, AND CARL
RACHLIN. 

PAT BAILEY, ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED THE CAUSE FOR
APPELLEES.  WITH HIM ON THE BRIEF WERE CRAWFORD C. MARTIN, ATTORNEY
GENERAL, NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL, ALFRED WALKER,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND J. C. DAVIS, ASSISTANT
ATTORNEY GENERAL. 

EVELLE J. YOUNGER, ATTORNEY GENERAL, AND ELIZABETH PALMER AND JEROLD
A. PROD, DEPUTY ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF
CALIFORNIA AS AMICUS CURIAE URGING AFFIRMANCE. 

SOLICITOR GENERAL GRISWOLD, BY INVITATION OF THE COURT, FILED A
MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE. 
..END :










SOCIALIST LABOR PARTY V. GILLIGAN, 406 U.S. 583 


       SOCIALIST LABOR PARTY ET AL. V. GILLIGAN, GOVERNOR OF OHIO,

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF OHIO

        NO. 70-21.  ARGUED MARCH 23, 1972-- DECIDED MAY 30, 1972 


APPELLANT POLITICAL PARTY, ITS OFFICERS, AND MEMBERS, ATTACKED THE
CONSTITUTIONALITY OF REVISIONS OF THE OHIO ELECTION CODE MADE FOLLOWING
THIS COURT'S DECISION IN SOCIALIST LABOR PARTY V. RHODES, 393 U.S. 23,
AND A PROVISION THAT A POLITICAL PARTY EXECUTE A LOYALTY AFFIDAVIT
UNDER OATH IN ORDER TO OBTAIN A BALLOT POSITION.  THE DISTRICT COURT,
DECIDING THE CASE ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON THE BASIS OF
THE PLEADINGS AND SUPPORTING AFFIDAVITS, UPHELD ALL APPELLANTS'
CHALLENGES EXCEPT THAT INVOLVING THE OATH PROVISION.  ALL PARTIES
APPEALED.  A REVISION OF THE ELECTION CODE MADE AFTER THIS COURT NOTED
PROBABLE JURISDICTION MOOTED ALL BUT THE OATH ISSUE.  APPELLANTS, WHO
DID NOT ATTACK THE OATH PROVISION IN RHODES AND WHO HAVE BEEN ON THE
BALLOT AND PRESUMABLY HAVE COMPLIED WITH THAT PROVISION SINCE ITS
ADOPTION IN 1941, CONTEND THAT IT VIOLATES THE FIRST AMENDMENT, IS
IMPERMISSIBLY VAGUE, DOES NOT COMPORT WITH DUE PROCESS, AND, SINCE IT
APPLIES TO THEM AND NOT THE TWO MAJOR POLITICAL PARTIES, VIOLATES EQUAL
PROTECTION.  HELD:  THE RECORD AND PLEADINGS ON THE ONE ISSUE NOT
MOOTED BY THE SUPERVENING LEGISLATION (AN ISSUE THAT RECEIVED SCANT
ATTENTION IN APPELLANTS' COMPLAINT AND NONE IN THE AFFIDAVITS
SUPPORTING THE CROSS-MOTIONS FOR SUMMARY JUDGMENT) ARE INADEQUATE FOR
RESOLUTION OF THE CONSTITUTIONAL QUESTIONS PRESENTED, AND IN VIEW OF
THE ABSTRACT AND SPECULATIVE POSTURE OF THE CASE THE APPEAL MUST
THEREFORE BE DISMISSED.  RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549. 
PP. 585-589. 

318 F.SUPP.  1262, APPEAL DISMISSED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ.,
JOINED, POST, P. 589. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

APPELLANT SOCIALIST LABOR PARTY HAS ENGAGED IN A PROLONGED LEGAL
BATTLE TO INVALIDATE VARIOUS OHIO LAWS RESTRICTING MINORITY PARTY
ACCESS TO THE BALLOT.  CONCLUDING THAT "THE TOTALITY OF THE OHIO
RESTRICTIVE LAWS TAKEN AS A WHOLE" VIOLATED THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT, THIS COURT STRUCK DOWN THOSE LAWS IN
SOCIALIST LABOR PARTY V. RHODES, 393 U.S. 23, 34 (1968).  /1/
FOLLOWING THAT DECISION THE OHIO LEGISLATURE REVISED THE STATE ELECTION
CODE, BUT THE PARTY WAS DISSATISFIED WITH THE REVISIONS AND INSTITUTED
THE PRESENT SUIT IN 1970. 

THE SOCIALIST LABOR PARTY, ITS OFFICERS, AND MEMBERS JOINED AS
PLAINTIFFS IN REQUESTING A THREE-JUDGE DISTRICT COURT TO INVALIDATE ON
CONSTITUTIONAL GROUNDS VARIOUS SECTIONS OF THE REVISED ELECTION LAWS OF
OHIO.  THE PLAINTIFFS SPECIFICALLY CHALLENGED PROVISIONS OF THE OHIO
ELECTION LAWS REQUIRING THAT A PARTY EITHER RECEIVE A CERTAIN
PERCENTAGE OF THE VOTE CAST IN THE LAST PRECEDING ELECTION OR ELSE FILE
PETITIONS OF QUALIFIED ELECTORS CORRESPONDING TO THE SAME PERCENTAGE;
PROVISIONS RELATING TO THE ORGANIZATIONAL STRUCTURE OF A PARTY;
PROVISIONS REQUIRING THAT A POLITICAL PARTY ELECT A SPECIFIED NUMBER OF
DELEGATES AND ALTERNATES TO A STATE CONVENTION; AND PROVISIONS
REQUIRING A PARTY TO BE PART OF A NATIONAL POLITICAL PARTY THAT HOLDS
NATIONAL CONVENTIONS AT WHICH DELEGATES ELECTED IN STATE PRIMARIES
NOMINATE PRESIDENTIAL AND VICE-PRESIDENTIAL CANDIDATES.  IN ADDITION,
THEY CHALLENGED THAT PART OF THE OHIO ELECTION CODE REQUIRING A
POLITICAL PARTY TO FILE AN AFFIDAVIT UNDER OATH STATING IN SUBSTANCE
THAT THE PARTY IS NOT ENGAGED IN AN ATTEMPT TO OVERTHROW THE GOVERNMENT
BY FORCE OR VIOLENCE, IS NOT ASSOCIATED WITH A GROUP MAKING SUCH AN
ATTEMPT, AND DOES NOT CARRY ON A PROGRAM OF SEDITION OR TREASON AS
DEFINED BY THE CRIMINAL LAW. 

THE CASE WAS DECIDED ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, THE
THREE-JUDGE DISTRICT COURT HAVING BEFORE IT THE COMPLAINT AND ANSWER OF
THE RESPECTIVE PARTIES, AND AFFIDAVITS FILED PURSUANT TO FED. RULE CIV.
PROC. 56.  THE COURT RULED ON THE MERITS IN FAVOR OF ALL OF APPELLANTS'
CONSTITUTIONAL CHALLENGES TO THE OHIO ELECTION LAWS EXCEPT THAT
INVOLVING THE OATH REQUIREMENT, WITH RESPECT TO WHICH IT RULED IN FAVOR
OF THE APPELLEES.  BOTH SIDES APPEALED TO THIS COURT, AND WE NOTED
PROBABLE JURISDICTION.  401 U.S. 991 (1971). 

SINCE THEN, THE POSTURE OF THIS LITIGATION HAS UNDERGONE A
SIGNIFICANT CHANGE.  ON DECEMBER 23, 1971, THE OHIO LEGISLATURE ENACTED
SENATE BILL NO. 460, WHICH EMBODIED AN EXTENSIVE REVISION OF THE STATE
ELECTION CODE.  BOTH SIDES NOW AGREE THAT THE PASSAGE OF THIS ACT
RENDERS MOOT ALL BUT ONE OF THE ISSUES DECIDED BELOW.  THE ONE
CHALLENGED PROVISION THAT REMAINS UNAMENDED IS THE STATE'S REQUIREMENT
THAT A POLITICAL PARTY EXECUTE THE ABOVE-DESCRIBED AFFIDAVIT UNDER OATH
IN ORDER TO OBTAIN A POSITION ON THE BALLOT. 

APPELLANTS' 1970 COMPLAINT REPRESENTED A BROADSIDE ATTACK AGAINST
INTERRELATED AND ALLEGEDLY OVERLY RESTRICTIVE PROVISIONS OF THE OHIO
ELECTION LAWS.  THE THREE-JUDGE DISTRICT COURT, IN ITS RULING FOR THE
APPELLANTS ON THE ISSUES THAT HAVE NOW BECOME MOOT, STATED: 

"THE 1969 AMENDMENTS TO THE ELECTION LAWS MERELY PERPETUATE THE
RESTRICTIVE LAWS ENACTED BETWEEN 1948 AND 1952.  THE OVERALL EFFECT OF
THESE LAWS IS STILL TO DENY TO PLAINTIFFS THEIR CONSTITUTIONAL RIGHT OF
POLITICAL ASSOCIATION."  318 F.SUPP.  1262, 1269-1270 (FOOTNOTE
OMITTED). 

THUS APPELLANTS, AT THE TIME THEY FILED THEIR 1970 ACTION, WERE
FENCED OUT OF THE POLITICAL PROCESS BY A SERIES OF RESTRICTIVE
PROVISIONS THAT PREVENTED THEM FROM MAKING ANY PROGRESS TOWARD A
POSITION ON THE BALLOT AS A DESIGNATED POLITICAL PARTY.  THEIR
CHALLENGE WAS NECESSARILY OF A SOMEWHAT ABSTRACT CHARACTER, SINCE UNDER
THEIR ALLEGATIONS THEY WERE ABLE TO COMPLY WITH VERY FEW OF THE
PROVISIONS REGULATING ACCESS TO THE BALLOT.  NOW, HOWEVER, WITH THE
ENACTMENT OF A REVISED ELECTION CODE, THE ABSTRACT CHARACTER OF THE
SINGLE REMAINING CHALLENGE TO THE OHIO ELECTION PROCEDURES STANDS OUT
ALL THE MORE. 

APPELLANTS DID NOT IN THEIR ACTION THAT CAME HERE IN 1968 CHALLENGE
THE LOYALTY OATH.  THEIR 1970 COMPLAINT RESPECTING THE LOYALTY OATH IS
SINGULARLY SPARSE IN ITS FACTUAL ALLEGATIONS.  THERE IS NO SUGGESTION
IN IT THAT THE SOCIALIST LABOR PARTY HAS EVER REFUSED IN THE PAST, OR
WILL NOW REFUSE, TO SIGN THE REQUIRED OATH.  THERE IS NO ALLEGATION OF
INJURY THAT THE PARTY HAS SUFFERED OR WILL SUFFER BECAUSE OF THE
EXISTENCE OF THE OATH REQUIREMENT. 

IT IS FAIRLY INFERABLE THAT THE ABSENCE OF SUCH ALLEGATIONS IS NOT
MERELY AN OVERSIGHT IN THE DRAFTING OF A PLEADING.  THE REQUIREMENT OF
THE AFFIDAVIT UNDER OATH WAS ENACTED IN 1941, 119 OHIO LAWS 586, AND
HAS REMAINED CONTINUOUSLY IN FORCE SINCE THAT DATE.  THE SOCIALIST
LABOR PARTY HAS APPEARED ON THE STATE BALLOT SINCE THE LAW'S PASSAGE,
AND, UNLESS THE STATE OFFICIALS HAVE IGNORED WHAT APPEAR TO BE
MANDATORY OATH PROVISIONS, IT IS REASONABLE TO CONCLUDE THAT THE PARTY
HAS IN THE PAST EXECUTED THE REQUIRED AFFIDAVIT. 

IT IS AXIOMATIC THAT THE FEDERAL COURTS DO NOT DECIDE ABSTRACT
QUESTIONS POSED BY PARTIES WHO LACK "A PERSONAL STAKE IN THE OUTCOME OF
THE CONTROVERSY."  BAKER V. CARR, 369 U.S. 186, 204 (1962); FLAST V.
COHEN, 392 U.S. 83, 101 (1968).  APPELLANTS ARGUE THAT THE AFFIDAVIT
REQUIREMENT VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS, BUT THEIR
PLEADINGS FAIL TO ALLEGE THAT THE REQUIREMENT HAS IN ANY WAY AFFECTED
THEIR SPEECH OR CONDUCT, OR THAT EXECUTING THE OATH WOULD IMPAIR THE
EXERCISE OF ANY RIGHT THAT THEY HAVE AS A POLITICAL PARTY OR AS MEMBERS
OF A POLITICAL PARTY.  THEY CONTEND THAT TO REQUIRE IT OF THEM BUT NOT
OF THE TWO MAJOR POLITICAL PARTIES DENIES THEM EQUAL PROTECTION, BUT
THEY DO NOT ALLEGE ANY PARTICULARS THAT MAKE THE REQUIREMENT OTHER THAN
A HYPOTHETICAL BURDEN.  FINALLY, THEY CLAIM THAT THE REQUIRED AFFIDAVIT
IS IMPERMISSIBLY VAGUE AND THAT ITS ENFORCEMENT PROCEDURES DO NOT
COMPORT WITH DUE PROCESS.  BUT THE RECORD BEFORE THE THREE-JUDGE
DISTRICT COURT, AND NOW BEFORE THIS COURT, IS EXTRAORDINARILY SKIMPY IN
THE SORT OF PROVED OR ADMITTED FACTS THAT WOULD ENABLE US TO ADJUDICATE
THIS CLAIM.  SINCE APPELLANTS HAVE PREVIOUSLY SECURED A POSITION ON THE
BALLOT WITH NO UNTOWARD CONSEQUENCES, THE GRAVAMEN OF THEIR CLAIM THAT
IT INJURES THEM REMAINS QUITE UNCLEAR. 

IN THE USUAL CASE IN WHICH THIS COURT HAS PASSED ON THE VALIDITY OF
SIMILAR OATH PROVISIONS, THE PARTY CHALLENGING CONSTITUTIONALITY WAS
EITHER UNABLE OR UNWILLING TO EXECUTE THE REQUIRED OATH AND, IN THE
CIRCUMSTANCES OF THE PARTICULAR CASE, SUSTAINED, OR FACED THE IMMEDIATE
PROSPECT OF SUSTAINING, SOME DIRECT INJURY AS A RESULT OF THE PENALTY
PROVISIONS ASSOCIATED WITH THE OATH.  SEE, E.G., COLE V. RICHARDSON,
405 U.S. 676 (1972); KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589
(1967); WIEMAN V. UPDEGRAFF, 344 U.S. 183 (1952). 

IN CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368 U.S. 278, 283-285
(1961), THE APPELLANTS WERE PUBLIC SCHOOL TEACHERS WHO HAD BEEN
THREATENED WITH DISCHARGE FOR THEIR REFUSAL TO EXECUTE THE REQUIRED
OATH.  THE COURT HELD THAT EVEN THOUGH APPELLANTS MIGHT BE ABLE TO SIGN
THE REQUIRED OATH IN GOOD CONSCIENCE, THE RECORD THERE INDICATED THAT
THEY WOULD STILL BE SUBJECT TO POSSIBLE HAZARDS OF A PERJURY CONVICTION
BY REASON OF THE VAGUENESS OF THE OATH'S LANGUAGE.  IN THE PRESENT
CASE, HOWEVER, APPELLANTS HAVE APPARENTLY SIGNED THE OATH AT PREVIOUS
TIMES, AND SO FAR AS THIS RECORD SHOWS THEY HAVE SUFFERED NO INJURY AS
A RESULT.  THE STATE HAS NEVER QUESTIONED THE TRUTH OF THE AFFIDAVIT,
AND APPELLANTS' CONDUCT AND ASSOCIATIONS HAVE NOT BEEN CONSTRICTED AS A
RESULT OF THEIR HAVING EXECUTED THE AFFIDAVIT. 

THE LONG AND THE SHORT OF THE MATTER IS THAT WE KNOW VERY LITTLE
MORE ABOUT THE OPERATION OF THE OHIO AFFIDAVIT PROCEDURE AS A RESULT OF
THIS LAWSUIT THAN WE WOULD IF A PROSPECTIVE PLAINTIFF WHO HAD NEVER SET
FOOT IN OHIO HAD SIMPLY PICKED THIS SECTION OF THE OHIO ELECTION LAWS
OUT OF THE STATUTE BOOKS AND FILED A COMPLAINT IN THE DISTRICT COURT
SETTING FORTH THE ALLEGEDLY OFFENDING PROVISIONS AND REQUESTING AN
INJUNCTION AGAINST THEIR ENFORCEMENT.  THESE PLAINTIFFS MAY WELL MEET
THE TECHNICAL REQUIREMENT OF STANDING, AND THEY MAY BE PARTIES TO A
CASE OR CONTROVERSY, BUT THEIR CASE HAS NOT GIVEN ANY PARTICULARITY TO
THE EFFECT ON THEM OF OHIO'S AFFIDAVIT REQUIREMENT. 

THIS COURT HAS RECOGNIZED IN THE PAST THAT EVEN WHEN JURISDICTION
EXISTS IT SHOULD NOT BE EXERCISED UNLESS THE CASE "TENDERS THE
UNDERLYING CONSTITUTIONAL ISSUES IN CLEANCUT AND CONCRETE FORM." 
RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 584 (1947).  PROBLEMS OF
PREMATURITY AND ABSTRACTNESS MAY WELL PRESENT "INSUPERABLE OBSTACLES"
TO THE EXERCISE OF THE COURT'S JURISDICTION, EVEN THOUGH THAT
JURISDICTION IS TECHNICALLY PRESENT.  ID., AT 574.  /2/ 

WE FIND THAT THE PRESENT POSTURE OF THIS CASE RAISES JUST SUCH AN
OBSTACLE.  ALL ISSUES LITIGATED BELOW HAVE BECOME MOOT EXCEPT FOR ONE
THAT RECEIVED SCANT ATTENTION IN APPELLANTS' COMPLAINT AND WAS TREATED
NOT AT ALL IN THE AFFIDAVITS FILED IN SUPPORT OF THE CROSS-MOTIONS FOR
SUMMARY JUDGMENT.  NOTHING IN THE RECORD SHOWS THAT APPELLANTS HAVE
SUFFERED ANY INJURY THUS FAR, AND THE LAW'S FUTURE EFFECT REMAINS
WHOLLY SPECULATIVE.  NOTWITHSTANDING THE INDICATIONS THAT APPELLANTS
HAVE IN THE PAST EXECUTED THE REQUIRED AFFIDAVIT WITHOUT INJURY, IT IS,
OF COURSE, POSSIBLE THAT AT SOME FUTURE TIME THEY MAY BE ABLE TO
DEMONSTRATE SOME INJURY AS A RESULT OF THE APPLICATION OF THE PROVISION
CHALLENGED HERE.  OUR ADJUDICATION OF THE MERITS OF SUCH A CHALLENGE
WILL AWAIT THAT TIME.  THIS APPEAL MUST BE DISMISSED.  RESCUE ARMY V.
MUNICIPAL COURT, SUPRA, AT 585. 

           IT IS SO ORDERED. 

/1/  THAT CASE WAS DECIDED TOGETHER WITH WILLIAMS V. RHODES, 393
U.S. 23 (1968). 

/2/  DESPITE THE CONTRARY IMPLICATION IN THE DISSENT, SEE POST, AT
592-593, N. 3, THE HOLDING OF RESCUE ARMY HAS BEEN APPLIED BY THIS
COURT TO NUMEROUS APPEALS IN WHICH NO STATUTORY OR CONSTITUTIONAL
IMPEDIMENT TO JURISDICTION WAS PRESENT.  SEE, E.G., COWGILL V.
CALIFORNIA, 396 U.S. 371 (1970) (HARLAN, J., CONCURRING); ATLANTA
NEWSPAPERS, INC. V. GRIMES, 364 U.S. 290 (1960); TEAMSTERS V. DENVER
MILK PRODUCERS, INC., 334 U.S. 809 (1948).  NOR HAS THERE EVER BEEN ANY
SUGGESTION THAT RESCUE ARMY SHOULD APPLY ONLY TO APPEALS FROM STATE,
RATHER THAN FEDERAL, COURTS.  SEE UNITED STATES V. FRUEHAUF, 365 U.S.
146, 157 (1961); UNITED STATES V. CIO, 335 U.S. 106, 125-126 (1948)
(FRANKFURTER, J., CONCURRING).  SEE ALSO ALBERTSON V. MILLARD, 345 U.S.
242, 245 (1953).  DESPITE THIS LACK OF CASE SUPPORT, THE DISSENT ARGUES
THAT THE RESCUE ARMY DOCTRINE SHOULD NOT APPLY TO THE PRESENT CASE,
SINCE IT IS AN APPEAL FROM A FEDERAL COURT JUDGMENT PURSUANT TO 28
U.S.C. 1253, WHEREAS RESCUE ARMY WAS AN APPEAL FROM A STATE COURT
JUDGMENT PURSUANT TO 28 U.S.C. 1257.  THIS DISTINCTION IS EVANESCENT. 
UNDER BOTH GRANTS OF JURISDICTION THIS COURT IS OBLIGATED TO RULE UPON
THOSE PROPERLY PRESENTED QUESTIONS THAT ARE NECESSARY FOR DECISION OF
THE CASE.  BUT WHEN THE ISSUES ARE NOT PRESENTED WITH THE CLARITY
NEEDED FOR EFFECTIVE ADJUDICATION, APPELLATE REVIEW OF A FEDERAL COURT
JUDGMENT IS EVERY BIT AS INAPPROPRIATE AS WAS REVIEW OF A STATE COURT
JUDGMENT IN RESCUE ARMY. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

THE OATH REQUIRED OF APPELLANTS FOR POLITICAL RECOGNITION IN OHIO IS
PLAINLY UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION.  BECAUSE I
BELIEVE THIS A PROPER CASE FOR DECLARATORY RELIEF, I WOULD THEREFORE
REVERSE THE JUDGMENT BELOW. 

IN ORDER TO "BE RECOGNIZED OR BE GIVEN A PLACE ON THE BALLOT IN ANY
PRIMARY OR GENERAL ELECTION," OHIO REQUIRES THAT MEMBERS OF POLITICAL
PARTIES FILE A LOYALTY OATH WITH THE SECRETARY OF STATE.  OHIO REV.
CODE ANN. SEC. 3517.07 (1960) (SEE APPENDIX TO THIS OPINION).  I NEED
NOT CONSIDER THE VAGUENESS OR OVERBREADTH OF THE OHIO OATH, FOR MY
VIEWS ON THAT SUBJECT HAVE BEEN STATED OVER AND OVER AGAIN.  /1/  FOR
THE PRESENT CASE, IT IS SUFFICIENT FOR MY DECISION THAT OHIO REQUIRES
THE OATH BASED UPON THE INVIDIOUS CLASSIFICATION OF POLITICAL
ALLEGIANCE. 

AN EXCEPTION FROM THE OATH REQUIREMENT IS MADE FOR "ANY POLITICAL
PARTY OR GROUP WHICH HAS HAD A PLACE ON THE BALLOT IN EACH NATIONAL AND
GUBERNATORIAL ELECTION SINCE THE YEAR 1900."  IBID.  IT IS CONCEDED
THAT THIS EXEMPTION APPLIES ONLY TO THE DEMOCRATIC AND REPUBLICAN
PARTIES (SEE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT), AND WE MAY
PROPERLY TREAT IT AS IF IT WERE WRITTEN IN PRECISELY THOSE TERMS.  SEE
LANE V. WILSON, 307 U.S. 368 (1939); GUINN V. UNITED STATES, 238 U.S.
347 (1915).  THIS EXCEPTION IS THUS PART OF THE BROADER PATTERN OF
OHIO'S DISCRIMINATORY PREFERENCE FOR THE TWO ESTABLISHED POLITICAL
PARTIES.  WE CONSIDERED THIS DISCRIMINATION BEFORE IN WILLIAMS V.
RHODES, 393 U.S. 23, 31 (1968), AND SAID: 

     "NO EXTENDED DISCUSSION IS REQUIRED TO ESTABLISH THAT THE OHIO

  LAWS BEFORE US GIVE THE TWO OLD, ESTABLISHED PARTIES A DECIDED

  ADVANTAGE OVER ANY NEW PARTIES STRUGGLING FOR EXISTENCE AND THUS

  PLACE SUBSTANTIALLY UNEQUAL BURDENS ON BOTH THE RIGHT TO VOTE AND

  THE RIGHT TO ASSOCIATE.  THE RIGHT TO FORM A PARTY FOR THE

  ADVANCEMENT OF POLITICAL GOALS MEANS LITTLE IF A PARTY CAN BE

  KEPT OFF THE ELECTION BALLOT AND THUS DENIED AN EQUAL OPPORTUNITY

  TO WIN VOTES.  SO ALSO, THE RIGHT TO VOTE IS HEAVILY BURDENED IF

  THAT VOTE MAY BE CAST ONLY FOR ONE OF TWO PARTIES AT A TIME WHEN

  OTHER PARTIES ARE CLAMORING FOR A PLACE ON THE BALLOT.  IN

  DETERMINING WHETHER THE STATE HAS POWER TO PLACE SUCH UNEQUAL

  BURDENS ON MINORITY GROUPS WHERE RIGHTS OF THIS KIND ARE AT

  STAKE, THE DECISIONS OF THIS COURT HAVE CONSISTENTLY HELD THAT

  'ONLY A COMPELLING STATE INTEREST IN THE REGULATION OF A SUBJECT

  WITHIN THE STATE'S CONSTITUTIONAL POWER TO REGULATE CAN JUSTIFY

  LIMITING FIRST AMENDMENT FREEDOMS.'" 

IN A SEPARATE OPINION, I NOTED, "THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT PERMITS THE STATES TO MAKE CLASSIFICATIONS AND
DOES NOT REQUIRE THEM TO TREAT DIFFERENT GROUPS UNIFORMLY. 
NEVERTHELESS, IT BANS ANY 'INVIDIOUS DISCRIMINATION.'"  ID., AT 39. 
CLASSIFICATIONS BASED UPON POLITICAL OR RELIGIOUS ASSOCIATIONS,
BELIEFS, OR PHILOSOPHY ARE SUCH "INVIDIOUS" CLASSIFICATIONS.  AS MR.
JUSTICE BLACK SAID IN COX V. LOUISIANA, 379 U.S. 559, 581:     "BY
SPECIFICALLY PERMITTING PICKETING FOR THE PUBLICATION OF LABOR UNION
VIEW, LOUISIANA IS ATTEMPTING TO PICK AND CHOOSE AMONG THE VIEWS IT IS
WILLING TO HAVE DISCUSSED ON ITS STREETS.  IT THUS IS TRYING TO
PRESCRIBE BY LAW WHAT MATTERS OF PUBLIC INTEREST PEOPLE WHOM IT ALLOWS
TO ASSEMBLE ON ITS STREETS MAY AND MAY NOT DISCUSS.  THIS SEEMS TO ME
TO BE CENSORSHIP IN A MOST ODIOUS FORM, UNCONSTITUTIONAL UNDER THE
FIRST AND FOURTEENTH AMENDMENTS.  AND TO DENY THIS APPELLANT AND HIS
GROUP USE OF THE STREETS BECAUSE OF THEIR VIEWS AGAINST RACIAL
DISCRIMINATION, WHILE ALLOWING OTHER GROUPS TO USE THE STREETS TO VOICE
OPINIONS ON OTHER SUBJECTS, ALSO AMOUNTS, I THINK, TO AN INVIDIOUS
DISCRIMINATION FORBIDDEN BY THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT." 

"WHILE I DOUBT THAT ANY STATE INTEREST CAN BE SO COMPELLING AS TO
JUSTIFY AN IMPAIRMENT OF ASSOCIATIONAL FREEDOMS IN THE AREA OF
PHILOSOPHY-- POLITICAL OR OTHERWISE," LIPPITT V. CIPOLLONE, 404 U.S.
1032, 1033-1034 (DOUGLAS, J., DISSENTING); SEE ALSO WILLIAMS V. RHODES,
SUPRA, AT 39-40 (SEPARATE OPINION OF DOUGLAS, J.), THE APPELLEES HAVE
NOT EVEN OFFERED A COLORABLE EXPLANATION FOR THE DISPARATE TREATMENT OF
THE SEPARATE POLITICAL PARTIES.  I CONCLUDE, THEREFORE, THAT THE
UNEQUAL BURDEN PLACED UPON APPELLANTS IS UNCONSTITUTIONAL.  /2/ 

THE COURT DOES NOT REACH APPELLANTS' CHALLENGE TO THE LOYALTY OATH,
HOWEVER, BECAUSE IT CONCLUDES THAT "THEY DO NOT ALLEGE ANY PARTICULARS
THAT MAKE THE (OATH) REQUIREMENT OTHER THAN A HYPOTHETICAL BURDEN." 
ANTE, AT 587.  IN SHARP CONTRAST TO THE DECISION IN RESCUE ARMY V.
MUNICIPAL COURT, 331 U.S. 549 (1947), THE ONLY CASE UPON WHICH IT
RELIES, /3/  THE COURT DOES NOT EXPLAIN WHAT ADDITIONAL FACTS IT FEELS
ARE NECESSARY TO REACH THE MERITS.  IN BASING ITS DECISION ON THIS
GROUND, I FEAR THAT THE COURT HAS TAKEN AN UNDULY NARROW VIEW OF
DECLARATORY RELIEF. 

APPELLANTS ARGUE THAT THE OATH IS FACIALLY INVALID FOR THE INVIDIOUS
CLASSIFICATION IT CREATES, FOR ITS OVERBREADTH AND ITS VAGUENESS. 
CERTAINLY SUCH CHALLENGES TO THE FACIAL VALIDITY OF A STATUTE ARE
IDEALLY SUITED FOR DECLARATORY JUDGMENT.  MOORE V. OGILVIE, 394 U.S.
814.  THERE CAN BE NO QUESTION OF APPELLANTS' STAKE IN THE CONTROVERSY,
FOR IF THEY REFUSE TO SUBSCRIBE TO THE OATH THEY WILL BE DENIED
POLITICAL RECOGNITION, CF. LAW STUDENTS RESEARCH COUNCIL V. WADMOND,
401 U.S. 154 (1971); BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1 (1971);
WHILE, IN ORDER TO OBTAIN SUCH RECOGNITION, THEY MUST SUBSCRIBE TO AN
UNCONSTITUTIONAL OATH OR SUBJECT THEMSELVES TO AN INVIDIOUS
CLASSIFICATION.  /4/  CF. KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589
(1967); CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368 U.S. 278 (1961).  /5/
UNDER EITHER ALTERNATIVE, APPELLANTS HAVE "SUCH A PERSONAL STAKE IN
THE OUTCOME . . . AS TO ASSURE THAT CONCRETE ADVERSENESS WHICH SHARPENS
THE PRESENTATION OF ISSUES UPON WHICH THE COURT SO LARGELY DEPENDS." 
BAKER V. CARR, 369 U.S. 186, 204 (1962).  NOR IS THIS A CASE WHERE
APPELLANTS' INJURY IS ONLY SPECULATIVE, CF. GOLDEN V. ZWICKLER, 394
U.S. 103 (1969), FOR THEY ALLEGE THAT THEY "WILL CONTINUE TO NOMINATE
CANDIDATES FOR POLITICAL OFFICE IN OHIO IN THE FUTURE." 

EVERS V. DWYER, 358 U.S. 202 (1958), IS RELEVANT HERE.  THE
APPELLANT IN THAT CASE WAS A BLACK WHO SOUGHT A DECLARATORY JUDGMENT
THAT A STATE STATUTE REQUIRING THE SEGREGATION OF THE RACES ON
MUNICIPAL BUSES WAS UNCONSTITUTIONAL.  IN DISMISSING THE COMPLAINT, THE
DISTRICT COURT TOOK THE APPROACH THIS COURT TAKES TODAY AND REASONED
THAT APPELLANT "HAD NOT BEEN INJURED AT ALL" BECAUSE "HE WAS NOT A
REGULAR OR EVEN AN OCCASIONAL USER OF BUS TRANSPORTATION."  WE
SUMMARILY REVERSED THAT DECISION, SAYING THAT AN INDIVIDUAL "SUBJECTED
BY STATUTE TO SPECIAL DISABILITIES NECESSARILY HAS, WE THINK, A
SUBSTANTIAL, IMMEDIATE, AND REAL INTEREST IN THE VALIDITY OF THE
STATUTE WHICH IMPOSES THE DISABILITY."  358 U.S.,AT 204.  AND SEE
GOODING V. WILSON, 405 U.S. 518. 

IN EVERS, WE DID NOT BASE OUR DECISION ON ANY CONSIDERATION OF
WHETHER THE SEATS BLACKS WERE REQUIRED TO TAKE WERE BETTER OR WORSE
THAN THOSE AVAILABLE TO WHITES.  RATHER, WE HELD THAT MEMBERS OF A
DISFAVORED MINORITY COULD CHALLENGE UNCONSTITUTIONAL STATUTORY
CLASSIFICATIONS WHICH SET THEM APART.  THAT WAS THE "DISABILITY" TO
WHICH WE REFERRED.  APPELLANTS ARE MEMBERS OF AN UNFAVORED POLITICAL
MINORITY IN OHIO AND THEY TOO SHOULD BE ABLE TO CHALLENGE INVIDIOUS
CLASSIFICATIONS WHICH SET THEM APART FROM THE FAVORED MAJORITY. 

SINCE 1946, APPELLANTS AND OTHER MINORITY POLITICAL PARTIES IN OHIO
HAVE BEEN REPRESSED BY LEGISLATION ENACTED BY THE TWO DOMINANT
PARTIES.  IN THE LAST FOUR YEARS, THEY HAVE SOUGHT RELIEF FROM THESE
SHACKLES SO THAT THEIR VOICES COULD BE HEARD IN THE POLITICAL ARENA. 
/6/  BUT OHIO HAS ERECTED INNUMERABLE ROADBLOCKS TO THEIR
PARTICIPATION.  UNDER THE MAJORITY'S DECISION, EACH OBSTACLE WILL
REQUIRE A SEPARATE LAWSUIT BECAUSE IT WILL ONLY BE AFTER THEY HAVE BEEN
FRUSTRATED AT A PARTICULAR TURN THAT THEY WILL BE ABLE TO SATISFY THIS
NEW TEST FOR DECLARATORY RELIEF. 

THE MODERN REMEDY OF DECLARATORY JUDGMENTS SHOULD BE USED TO
SIMPLIFY, NOT MULTIPLY, LITIGATION. 

I WOULD REVERSE THE JUDGMENT BELOW. 

/1/  E.G., COLE V. RICHARDSON, 405 U.S. 676, 687 (1972) (DISSENTING
OPINION); W.E.B. DUBOIS CLUBS V. CLARK, 389 U.S. 309, 313 (1967)
(DISSENTING OPINION); ELFBRANDT V. RUSSELL, 384 U.S. 11 (1966);
NOSTRAND V. LITTLE, 362 U.S. 474, 476 (1960) (DISSENTING OPINION);
FIRST UNITARIAN CHURCH V. LOS ANGELES, 357 U.S. 545, 547 (1958)
(CONCURRING OPINION); SPEISER V. RANDALL, 357 U.S. 513, 532 (1958)
(CONCURRING OPINION). 

/2/  WHILE THE DISTRICT COURT ACKNOWLEDGED THAT ONE OF APPELLANTS
CHALLENGES TO THE OATH WAS THAT IT "VIOLATES THE EQUAL PROTECTION
CLAUSE BY EXCEPTING THE DEMOCRATIC AND REPUBLICAN PARTIES FROM ITS
AMBIT," 318 F.SUPP.  1262, 1270, THE COURT INEXPLICABLY DID NOT ADDRESS
THIS ARGUMENT. 

/3/  RESCUE ARMY CAME ON APPEAL FROM THE SUPREME COURT OF CALIFORNIA
AND INVOLVED A COMPLEX STATE STATUTORY SCHEME. 

THE PRESENT CASE, BY CONTRAST, COMES FROM A UNITED STATES DISTRICT
COURT WHERE OUR APPELLATE JURISDICTION IS FOUNDED UPON 28 U.S.C. 1253. 
IT IS, I THINK, AN UNDUE EXTENSION OF RESCUE ARMY TO APPLY IT TO AN
APPEAL FROM A FEDERAL COURT WHICH PROPERLY HEARD AND CONSIDERED A
FEDERAL CONSTITUTIONAL QUESTION.  SEE H. HART & H. WECHSLER, THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 149 (1953).  OUR DIFFERING
TREATMENT OF APPEALS FROM FEDERAL AND STATE COURTS RELATES TO THE
DIFFERENCE BETWEEN THE COURTS FROM WHICH THE APPEALS ARE TAKEN.  IF AN
APPEAL FROM A STATE COURT DOES NOT FALL WITHIN ART. III, IT WOULD IN
NOWISE AFFECT THE JURISDICTION OF THE COURT FROM WHICH THE APPEAL WAS
TAKEN.  DOREMUS V. BOARD OF EDUCATION, 342 U.S. 429, 434 (1952).  THE
SAME CANNOT BE SAID, HOWEVER, OF APPEALS FROM FEDERAL COURTS, E.G.,
MUSKRAT V. UNITED STATES, 219 U.S. 346.  THUS, "THE ESTABLISHED
PRACTICE OF THE COURT IN DEALING WITH A CIVIL CASE FROM A COURT IN THE
FEDERAL SYSTEM WHICH HAS BECOME MOOT WHILE ON ITS WAY HERE OR PENDING
OUR DECISION ON THE MERITS IS TO REVERSE OR VACATE THE JUDGMENT BELOW
AND REMAND WITH A DIRECTION TO DISMISS."  UNITED STATES V. MUNSINGWEAR,
340 U.S. 36, 39 (1950); SEE R. ROBERTSON & F. KIRKHAM, JURISDICTION OF
THE SUPREME COURT SEC. 273, P. 501 (1951).  "IF THE PROCEEDING IS ONE
TO REVIEW THE DECISION OF A STATE COURT," HOWEVER, OUR PRACTICE IS TO
"REMAND THE CAUSE TO THE STATE COURT IN ORDER THAT THAT COURT MAY TAKE
SUCH FURTHER PROCEEDINGS AS MAY BE DEEMED APPROPRIATE." 

THE CASES CITED BY THE MAJORITY, ANTE, AT 588-589, N. 2, DO NOT
SUPPORT TODAY'S TREATMENT OF AN APPEAL FROM AN ART. III COURT.  IN
UNITED STATES V. FRUEHAUF, 365 U.S. 146 (1961), THE DISTRICT COURT
DISMISSED AN INDICTMENT AND WE REVERSED AND REMANDED HOLDING THAT THE
PROVABLE FACTS MIGHT BRING THE CASE WITHIN THE STATUTE.  IN UNITED
STATES V. CIO, 335 U.S. 106 (1948), WE AFFIRMED THE JUDGMENT OF THE
DISTRICT COURT WHICH HAD DISMISSED AN INDICTMENT, BECAUSE THE FACTS
ALLEGED DID NOT STATE AN OFFENSE; AND WE DID NOT THEREFORE REACH THE
CONSTITUTIONAL ISSUE RELIED UPON BY THE DISTRICT COURT.  FINALLY,
ALBERTSON V. MILLARD, 345 U.S. 242 (1953), WAS AN ABSTENTION CASE IN
WHICH WE VACATED THE JUDGMENT OF THE DISTRICT COURT AND REMANDED WITH
DIRECTIONS TO HOLD THE CASE UNTIL THE STATE LAW QUESTIONS HAD BEEN
RESOLVED.  NONE OF THESE CASES, THEREFORE, STANDS FOR THE PROPOSITION
THAT WE MAY DISMISS A PERFECTED APPEAL FROM A PROPERLY ENTERED JUDGMENT
OF AN ART. III COURT. 

/4/  THE SUGGESTION THAT "APPELLANTS HAVE APPARENTLY SIGNED THE OATH
AT PREVIOUS TIMES," ANTE, AT 588, AND THUS SOMEHOW HAVE WAIVED THEIR
RIGHT TO OBJECT TO THE OATH, IS UNSUPPORTED BY THE RECORD.  APPELLANTS
INCLUDE NOT ONLY THE SOCIALIST LABOR PARTY BUT ALSO ITS NAMED OFFICERS
AND MEMBERS WHO WOULD BE REQUIRED TO EXECUTE THE OATH.  WHATEVER
RELEVANCE THERE MAY BE TO THE FACT THAT THE SOCIALIST LABOR PARTY WAS
ON THE BALLOT IN OHIO IN 1946, THAT FACT HAS NO BEARING WITH REGARD TO
THE INDIVIDUAL APPELLANTS. 

/5/  AS TO CRAMP, IT IS SUGGESTED THAT "THE RECORD THERE INDICATED
THAT (CRAMP) WOULD STILL BE SUBJECT TO POSSIBLE HAZARDS OF A PERJURY
CONVICTION BY REASON OF THE VAGUENESS OF THE OATH'S LANGUAGE."  ANTE,
AT 588.  IN OUR OPINION IN CRAMP, HOWEVER, WE NOTED THAT CRAMP ALLEGED
IN HIS COMPLAINT "THAT HE 'IS A LOYAL AMERICAN AND DOES NOT DECLINE TO
EXECUTE OR SUBSCRIBE TO THE AFORESAID OATH FOR FEAR OF THE PENALTIES
PROVIDED BY LAW FOR A FALSE OATH,'" 368 U.S.,AT 281.  IN ANY EVENT,
OHIO ALSO SUBJECTS OATH TAKERS TO THE "POSSIBLE HAZARDS OF A PERJURY
CONVICTION," SEE OHIO REV. CODE ANN. SECS. 3599.36, 2917.25 (1960), SO
CRAMP IS NOT DISTINGUISHABLE. 

/6/  SEE, E.G., LIPPITT V. CIPOLLONE, 404 U.S. 1032 (1972), AFF'G
337 F.SUPP.  1405 (ND OHIO 1971); BROCKINGTON V. RHODES, 396 U.S. 41
(1969); WILLIAMS V. RHODES, 393 U.S. 23 (1968), AFF'G SUB NOM.
SOCIALIST LABOR PARTY V. RHODES, 290 F.SUPP.  983 (OHIO 1968); STATE EX
REL. BIBLE V. BOARD OF ELECTIONS, 22 OHIO ST.2D 57, 258 N.E.2D 227; SEE
ALSO STATE EX REL. BECK V. HUMMEL, 150 OHIO ST. 127, 80 N.E.2D 899. 

        APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING OHIO REV.
CODE ANN. SEC. 3517.07 (1960): 

"NO POLITICAL PARTY OR GROUP WHICH ADVOCATES, EITHER DIRECTLY OR
INDIRECTLY, THE OVERTHROW, BY FORCE OR VIOLENCE, OF OUR LOCAL, STATE,
OR NATIONAL GOVERNMENT OR WHICH CARRIES ON A PROGRAM OF SEDITION OR
TREASON BY RADIO, SPEECH, OR PRESS OR WHICH HAS IN ANY MANNER ANY
CONNECTION WITH ANY FOREIGN GOVERNMENT OR POWER OR WHICH IN ANY MANNER
HAS ANY CONNECTION WITH ANY GROUP OR ORGANIZATION SO CONNECTED OR SO
ADVOCATING THE OVERTHROW, BY FORCE OR VIOLENCE, OF OUR LOCAL, STATE, OR
NATIONAL GOVERNMENT OR SO CARRYING ON A PROGRAM OF SEDITION OR TREASON
BY RADIO, SPEECH, OR PRESS SHALL BE RECOGNIZED OR BE GIVEN A PLACE ON
THE BALLOT IN ANY PRIMARY OR GENERAL ELECTION HELD IN THE STATE OR IN
ANY POLITICAL SUBDIVISION THEREOF. 

"ANY PARTY OR GROUP DESIRING TO HAVE A PLACE ON THE BALLOT SHALL
FILE WITH THE SECRETARY OF STATE AND WITH THE BOARD OF ELECTIONS IN
EACH COUNTY IN WHICH IT DESIRES TO HAVE A PLACE ON THE BALLOT AN
AFFIDAVIT MADE BY NOT LESS THAN TEN MEMBERS OF SUCH PARTY, NOT LESS
THAN THREE OF WHOM SHALL BE EXECUTIVE OFFICERS THEREOF, UNDER OATH
STATING THAT IT DOES NOT ADVOCATE, EITHER DIRECTLY OR INDIRECTLY, THE
OVERTHROW, BY FORCE OR VIOLENCE, OF OUR LOCAL, STATE, OR NATIONAL
GOVERNMENT; THAT IT DOES NOT CARRY ON ANY PROGRAM OF SEDITION OR
TREASON BY RADIO, SPEECH, OR PRESS; THAT IT HAS NO CONNECTION WITH ANY
FOREIGN GOVERNMENT OR POWER; THAT IT HAS NO CONNECTION WITH ANY GROUP
OR ORGANIZATION SO CONNECTED OR SO ADVOCATING, EITHER DIRECTLY OR
INDIRECTLY, THE OVERTHROW, BY FORCE OR VIOLENCE, OF OUR LOCAL, STATE,
OR NATIONAL GOVERNMENT OR SO CARRYING ON A PROGRAM OF SEDITION OR
TREASON BY RADIO, SPEECH, OR PRESS. 

"SAID AFFIDAVIT SHALL BE FILED NOT LESS THAN SIX NOR MORE THAN NINE
MONTHS PRIOR TO THE PRIMARY OR GENERAL ELECTION IN WHICH THE PARTY OR
GROUP DESIRES TO HAVE A PLACE ON THE BALLOT.  THE SECRETARY OF STATE
SHALL INVESTIGATE THE FACTS APPEARING IN THE AFFIDAVIT AND SHALL WITHIN
SIXTY DAYS AFTER THE FILING THEREOF FIND AND CERTIFY WHETHER OR NOT
THIS PARTY OR GROUP IS ENTITLED UNDER THIS SECTION TO HAVE A PLACE ON
THE BALLOT. 

"ANY QUALIFIED MEMBER OF SUCH PARTY OR GROUP OR ANY ELECTOR OF THIS
STATE MAY APPEAL FROM THE FINDING OF THE SECRETARY OF STATE TO THE
SUPREME COURT OF OHIO. 

"THIS SECTION DOES NOT APPLY TO ANY POLITICAL PARTY OR GROUP WHICH
HAS HAD A PLACE ON THE BALLOT IN EACH NATIONAL AND GUBERNATORIAL
ELECTION SINCE THE YEAR 1900." 

SANFORD JAY ROSEN ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF, BENJAMIN SHEERER, AND JERRY GORDON. 

DONALD J. GUITTAR, ASSISTANT ATTORNEY GENERAL OF OHIO, ARGUED THE
CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE WILLIAM J. BROWN,
ATTORNEY GENERAL, AND HAROLD C. HEISS. 
..END :






STRAIT V. LAIRD, 406 U.S. 341 


       STRAIT V. LAIRD, SECRETARY OF DEFENSE, ET AL.

     CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 71-83.  ARGUED MARCH 22, 1972-- DECIDED MAY 22, 1972 


DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA HAS
JURISDICTION UNDER 28 U.S.C. 2241(C)(1) TO HEAR AND DETERMINE THE
HABEAS CORPUS APPLICATION OF PETITIONER, WHO WAS ON UNATTACHED,
INACTIVE ARMY RESERVE DUTY WHILE DOMICILED IN CALIFORNIA, WHERE
MILITARY AUTHORITIES PROCESSED HIS APPLICATION FOR CONSCIENTIOUS
OBJECTOR DISCHARGE, THOUGH HE WAS UNDER THE NOMINAL COMMAND OF THE
COMMANDING OFFICER OF THE RESERVE OFFICER COMPONENTS PERSONNEL CENTER
IN INDIANA.  SCHLANGER V. SEAMANS, 401 U.S. 487, DISTINGUISHED.  PP.
342-346. 

445 F.2D 843, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  REHNQUIST, J., FILED A
DISSENTING OPINION, IN PART I OF WHICH BURGER, C.J., AND BRENNAN AND
POWELL, JJ., JOINED, POST, P. 346. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS AN ARMY RESERVE OFFICER NOT ON ACTIVE DUTY.  HIS ACTIVE
DUTY OBLIGATIONS WERE DEFERRED WHILE HE WENT TO LAW SCHOOL AFTER
GRADUATING FROM COLLEGE.  DURING THE PERIOD OF DEFERMENT AND AT THE
TIME THIS ACTION WAS COMMENCED, HIS MILITARY RECORDS WERE KEPT AT FORT
BENJAMIN HARRISON, INDIANA.  HIS NOMINAL COMMANDING OFFICER WAS THE
COMMANDING OFFICER OF THE RESERVE OFFICER COMPONENTS PERSONNEL CENTER
AT FORT BENJAMIN HARRISON.  PETITIONER WAS, HOWEVER, AT ALL TIMES
DOMICILED IN CALIFORNIA AND WAS NEVER IN INDIANA OR ASSIGNED THERE.  ON
FINISHING LAW SCHOOL HE TOOK THE CALIFORNIA BAR EXAMINATION AND ON
MARCH 5, 1970, HE WAS ORDERED TO REPORT FOR ACTIVE DUTY AT FORT GORDON,
GEORGIA, BEGINNING APRIL 13, 1970.  BEFORE THAT TIME, HOWEVER, HE HAD
FILED AN APPLICATION FOR DISCHARGE AS A CONSCIENTIOUS OBJECTOR.  THAT
APPLICATION WAS PROCESSED AT FORT ORD, CALIFORNIA, WHERE HEARINGS WERE
HELD.  FORT ORD RECOMMENDED HIS DISCHARGE AND REVIEW OF THAT
RECOMMENDATION WAS HAD IN INDIANA.  THE RESULT WAS DISAPPROVAL OF THE
APPLICATION. 

PETITIONER THEREUPON FILED A PETITION FOR WRIT OF HABEAS CORPUS IN
CALIFORNIA.  THE DISTRICT COURT DENIED A MOTION TO DISMISS, HOLDING
THAT IT HAD JURISDICTION (3 S.S.L.R. 3152), BUT RULES AGAINST
PETITIONER ON THE MERITS.  ON APPEAL THE COURT OF APPEALS AGREED WITH
THE DISTRICT COURT AS TO JURISDICTION BUT DISAGREED WITH IT ON THE
MERITS AND GRANTED THE WRIT.  3 S.S.L.R. 3784.  SHORTLY THEREAFTER OUR
DECISION IN SCHLANGER V. SEAMANS, 401 U.S. 487, WAS ANNOUNCED. 
THEREUPON THE COURT OF APPEALS GRANTED A PETITION FOR REHEARING AND
DISMISSED THE ACTION, HOLDING THAT THE DISTRICT COURT HAD NO
JURISDICTION UNDER THE HABEAS CORPUS STATUTES.  445 F.2D 843.  THE CASE
IS HERE ON A PETITION FOR CERTIORARI, WHICH WE GRANTED.  WE REVERSE THE
JUDGMENT BELOW. 

IN SCHLANGER THE SERVICEMAN-- ON ACTIVE DUTY IN THE AIR FORCE-- WAS
STUDYING IN ARIZONA ON ASSIGNMENT FROM OHIO.  THERE WAS NO OFFICER IN
ARIZONA WHO WAS HIS CUSTODIAN OR ONE IN HIS CHAIN OF COMMAND, OR ONE TO
WHOM HE WAS TO REPORT.  WHILE THE HABEAS CORPUS ACT EXTENDS TO THOSE
"IN CUSTODY UNDER OR BY COLOR OF THE AUTHORITY OF THE UNITED STATES,"
28 U.S.C. 2241(C)(1), WE HELD IN SCHLANGER THAT THE PRESENCE OF THE
"CUSTODIAN" WITHIN THE TERRITORIAL JURISDICTION OF THE DISTRICT COURT
WAS A SINE QUA NON.  IN SCHLANGER THE ONLY "CUSTODIAN" OF THE
SERVICEMAN WAS IN MOODY AFB, GEORGIA.  WHILE THERE WERE ARMY OFFICERS
IN ARIZONA, THERE WERE NONE TO WHOM THE SERVICEMAN WAS REPORTING AND
NONE WHO WERE SUPERVISING HIS WORK THERE, THOUGH HE WAS ON ACTIVE
DUTY.  MOREOVER, THE SERVICEMAN IN THAT CASE WAS IN ARIZONA ONLY
TEMPORARILY FOR AN EDUCATIONAL PROJECT. 

IN THE PRESENT CASE CALIFORNIA IS STRAIT'S HOME.  HE WAS
COMMISSIONED IN CALIFORNIA.  UP TO THE CONTROVERSY IN THE PRESENT CASE
HE WAS ON RESERVE DUTY, NEVER ON ACTIVE DUTY, AND WHILE HE HAD GONE
EAST FOR GRADUATE WORK IN LAW, CALIFORNIA HAD ALWAYS BEEN HIS HOME. 
FORT ORD IN CALIFORNIA WAS WHERE HIS APPLICATION FOR CONSCIENTIOUS
OBJECTOR DISCHARGE WAS PROCESSED AND WHERE HEARINGS WERE HELD.  IT WAS
IN CALIFORNIA WHERE HE HAD HAD HIS ONLY MEANINGFUL CONTACT WITH THE
ARMY; AND HIS SUPERIORS THERE RECOMMENDED HIS DISCHARGE AS A
CONSCIENTIOUS OBJECTOR. 

THUS, THE CONTENTION IN THE DISSENT THAT WE "ABANDON 'SCHLANGER" BY
THE APPROACH WE TAKE TODAY IS INCORRECT.  SERGEANT SCHLANGER WAS ON
PERMISSIVE TEMPORARY DUTY.  WHILE HIS STAY IN ARIZONA, WAS THUS NOT
CHARGED TO HIS LEAVE TIME, IT WAS PRIMARILY FOR HIS OWN BENEFIT, /1/
HE PAID HIS OWN EXPENSES, AND HE WAS AS MUCH ON HIS OWN AS ANY
SERVICEMAN ON LEAVE.  WE HELD IN SCHLANGER THAT, WHILE AN ACTIVE-DUTY
SERVICEMAN IN SUCH A STATUS MIGHT BE IN MILITARY "CUSTODY," SEE
DONIGIAN V. LAIRD, 308 F.SUPP.  449(MD. 1969), HIS CUSTODIAN MAY NOT BE
DEEMED PRESENT WHEREVER THE SERVICEMAN HAS PERSUADED THE SERVICE TO LET
HIM GO.  THE JURISDICTIONAL DEFECT IN SCHLANGER, HOWEVER, WAS NOT
MERELY THE PHYSICAL ABSENCE OF THE COMMANDER OF MOODY AFB FROM THE
DISTRICT OF ARIZONA, BUT THE TOTAL LACK OF FORMAL CONTRACTS BETWEEN
SCHLANGER AND THE MILITARY IN THAT DISTRICT. 

STRAIT'S SITUATION IS FAR DIFFERENT.  HIS NOMINAL CUSTODIAN, UNLIKE
SCHLANGER'S, HAS ENLISTED THE AID AND DIRECTED THE ACTIVITIES OF ARMED
FORCES PERSONNEL IN CALIFORNIA IN HIS DEALINGS WITH STRAIT.  INDEED, IN
THE COURSE OF STRAIT'S ENLISTMENT, VIRTUALLY EVERY FACE-TO-FACE CONTACT
BETWEEN HIM AND THE MILITARY HAS TAKEN PLACE IN CALIFORNIA.  IN THE
FACT OF THIS RECORD, TO SAY THAT STRAIT'S CUSTODIAN IS AMENABLE TO
PROCESS ONLY IN INDIANA-- OR WHEREVER THE ARMY CHOOSES TO LOCATE ITS
RECORDKEEPING CENTER, SEE N. 3, INFRA-- WOULD BE TO EXALT FICTION OVER
REALITY. 

IN A CLOSELY PARALLEL CASE THE COURT OF APPEALS FOR THE SECOND
CIRCUIT HELD THAT AN UNATTACHED RESERVE OFFICER WHO LIVED IN NEW YORK
AND WHOSE APPLICATION FOR DISCHARGE AS A CONSCIENTIOUS OBJECTOR WAS
PROCESSED IN NEW YORK COULD PROPERLY FILE FOR HABEAS CORPUS IN NEW
YORK, EVEN THOUGH THE COMMANDING OFFICER OF THE RESERVISTS WAS IN FORT
BENJAMIN HARRISON, INDIANA.  ARLEN V. LAIRD, 451 F.2D 684.  THE COURT
HELD THAT THE ONLY CONTACTS THE SERVICEMAN HAD HAD WITH HIS COMMANDING
OFFICER WERE THROUGH THE OFFICERS HE DEALT WITH IN NEW YORK.  THOSE
CONTACTS, IT CONCLUDED, WERE SUFFICIENT TO GIVE THE COMMANDING OFFICER
"PRESENCE" IN NEW YORK.  IT CONCLUDED: 

"QUITE UNLIKE A COMMANDING OFFICER WHO IS RESPONSIBLE FOR THE DAY TO
DAY CONTROL OF HIS SUBORDINATES, THE COMMANDING OFFICER OF THE CENTER
IS THE HEAD OF A BASICALLY ADMINISTRATIVE ORGANIZATION THAT MERELY
KEEPS THE RECORDS OF UNATTACHED RESERVISTS.  TO GIVE THE COMMANDING
OFFICER OF THE CENTER 'CUSTODY' OF THE THOUSANDS OF RESERVISTS
THROUGHOUT THE UNITED STATES AND TO HOLD AT THE SAME TIME THAT THE
COMMANDING OFFICER IS PRESENT FOR HABEAS CORPUS PURPOSES ONLY WITHIN
ONE SMALL GEOGRAPHICAL AREA IS TO IGNORE REALITY."  ID., AT 687. 

WE AGREE WITH THAT VIEW.  STRAIT'S COMMANDING OFFICER IS "PRESENT"
IN CALIFORNIA THROUGH THE OFFICERS IN THE HIERARCHY OF THE COMMAND WHO
PROCESSED THIS SERVICEMAN'S APPLICATION FOR DISCHARGE.  /2/  TO REQUIRE
HIM TO GO TO INDIANA WHERE HE NEVER HAS BEEN OR ASSIGNED TO BE WOULD
ENTAIL NEEDLESS EXPENSE AND INCONVENIENCE.  IT "WOULD RESULT IN A
CONCENTRATION OF SIMILAR CASES IN THE DISTRICT IN WHICH THE RESERVE
OFFICER COMPONENTS PERSONNEL CENTER IS LOCATED."  DONIGIAN V. LAIRD,
308 F.SUPP.,AT 453.  /3/  THE CONCEPTS OF "CUSTODY" AND "CUSTODIAN" ARE
SUFFICIENTLY BROAD TO ALLOW US TO SAY THAT THE COMMANDING OFFICER IN
INDIANA, OPERATING THROUGH OFFICERS IN CALIFORNIA IN PROCESSING
PETITIONER'S CLAIM, IS IN CALIFORNIA FOR THE LIMITED PURPOSES OF HABEAS
CORPUS JURISDICTION. 

WE INTIMATE NO OPINION ON THE MERITS OF THE CONTROVERSY-- WHETHER
PETITIONER IS ENTITLED TO A DISCHARGE OR WHETHER BY DENYING THAT RELIEF
THE ARMY HAS ACTED IN ACCORDANCE WITH THE PRESCRIBED PROCEDURES.  WE
HOLD ONLY THAT THERE IS JURISDICTION UNDER 28 U.S.C. 2241(C)(1) FOR
CONSIDERATION OF THIS HABEAS CORPUS PETITION AND FOR DECISION ON THE
MERITS. 

              REVERSED. 

/1/  AT THE TIME SERGEANT SCHLANGER RECEIVED HIS ASSIGNMENT, AIR
FORCE REGULATION 35-26 (MARCH 6, 1968) DEFINED "PERMISSIVE TEMPORARY
DUTY" AS "DUTY OF A QUASI-OFFICIAL NATURE PERFORMED AT OTHER THAN THE
PERMANENT DUTY STATION, WITHOUT COSTS TO THE GOVERNMENT FOR PER DIEM
AND TRAVEL."  SO DEFINED, PRIMARY DIFFERENCE BETWEEN "LEAVE" AND
"PERMISSIVE TEMPORARY DUTY" APPEARS TO BE THAT THE LATTER STATUS
REQUIRES THE SERVICEMAN TO CONVINCE THE MILITARY THAT HIS PROPOSED
ACTIVITY, WHILE AWAY FROM HIS PERMANENT DUTY STATION, WOULD BE OF SOME
DIRECT OR INDIRECT BENEFIT TO THE SERVICE. 

/2/  THAT SUCH "PRESENCE" MAY SUFFICE FOR PERSONAL JURISDICTION IS
WELL SETTLED, MCGEE V. INT'L LIFE INS. CO., 355 U.S. 220; INT'L SHOE
CO. V. WASHINGTON, 326 U.S. 310, AND THE CONCEPT IS ALSO NOT A NOVEL
ONE AS REGARDS HABEAS CORPUS JURISDICTION.  IN EX PARTE ENDO, 323 U.S.
283, 307, WE SAID THAT HABEAS CORPUS MAY ISSUE "IF A RESPONDENT WHO HAS
CUSTODY OF THE PRISONER IS WITHIN REACH OF THE COURT'S PROCESS.  . . .
" STRAIT'S COMMANDING OFFICER IS "PRESENT" IN CALIFORNIA THROUGH HIS
CONTACTS IN THAT STATE; HE IS THEREFORE "WITHIN REACH" OF THE FEDERAL
COURT IN WHICH STRAIT FILED HIS PETITION.  SEE DONIGIAN V. LAIRD, 308
F.SUPP.  449, 453; CF. UNITED STATES EX REL. ARMSTRONG V. WHEELER, 321
F.SUPP.  471, 475. 

/3/  THIS CONCENTRATION WOULD BE EXACERBATED IN THE EXTREME BY THE
FACT THAT THE RESERVE COMPONENTS PERSONNEL CENTER AT FORT BENJAMIN
HARRISON, INDIANA HAS NOW BEEN MOVED TO ST. LOUIS, MISSOURI, AND HAS
BEEN THERE MERGED INTO THE UNITED STATES ARMY RESERVE COMPONENTS
PERSONNEL AND ADMINISTRATION CENTER (RCPAC).  RCPAC HAS RECORDKEEPING
AND NOMINAL ADMINISTRATIVE RESPONSIBILITY FOR APPROXIMATELY 2,000,000
SERVICEMEN, ALL UNATTACHED, INACTIVE RESERVISTS SUCH AS PETITIONER. 

MR. JUSTICE REHNQUIST, DISSENTING. 

THE COURT TODAY EMASCULATES SCHLANGER V. SEAMANS, 401 U.S.
487(1971), BY PERMITTING HABEAS CORPUS WHEN THE CUSTODIAN AGAINST WHOM
THE WRIT MUST RUN IS NOT WITHIN THE FORUM JUDICIAL DISTRICT.  IT
STRETCHES THE CONCEPT OF CUSTODY BEYOND ANYTHING CONTAINED IN ANY OF
OUR PREVIOUS DECISIONS, AND PERMITS THE FEDERAL COURTS THROUGH HABEAS
CORPUS TO EXERCISE BROADER REVIEW OF MILITARY ADMINISTRATION THAN HAS
EVER BEEN PERMITTED.  I THEREFORE DISSENT. 

        I 

THE FACTS OF THIS CASE ARE INDISTINGUISHABLE IN ANY MATERIAL RESPECT
FROM SCHLANGER V. SEAMANS, SUPRA.  PETITIONER WAS ASSIGNED TO THE
RESERVE OFFICER COMPONENTS PERSONNEL CENTER AT FORT BENJAMIN HARRISON,
INDIANA.  HIS DEALINGS WITH THE ARMY CONSISTED OF SEVERAL REQUESTS FOR
DELAY IN COMMENCING ACTIVE DUTY, ALL OF WHICH WERE ADDRESSED TO AND
GRANTED BY HIS COMMANDING OFFICER AT FORT BENJAMIN HARRISON, AND AN
APPLICATION FOR DISCHARGE AS A CONSCIENTIOUS OBJECTOR, WHICH WAS ALSO
SUBMITTED TO THE INDIANA COMMAND.  ALTHOUGH PETITIONER WAS INTERVIEWED
BY A CHAPLAIN, PSYCHIATRIST, AND ANOTHER ARMY OFFICER AT FORT ORD,
CALIFORNIA, EACH OF WHOM MADE RECOMMENDATIONS ABOUT PETITIONER'S
APPLICATION, PETITIONER WAS NOT SUBJECT TO MILITARY ORDERS FROM ANY
COMMAND IN CALIFORNIA NOR DID ANY CALIFORNIA COMMAND RULE UPON HIS
APPLICATION.  THE PRELIMINARY PROCESSING ACCOMPLISHED BY THE INTERVIEWS
WAS FORWARDED TO PETITIONER'S COMMANDING OFFICER AT FORT BENJAMIN
HARRISON, WHO CONVENED A REVIEW BOARD TO PASS UPON THE APPLICATION. 
FOLLOWING THE BOARD'S RECOMMENDATION, PETITIONER'S COMMANDING OFFICER
DENIED THE REQUESTED DISCHARGE.  NOTHING IN THE RECORD BEFORE US
INDICATES THAT PETITIONER HAS EVER BEEN SUBJECT TO THE ORDERS OF ANY
ARMY OFFICER OR COMMAND IN CALIFORNIA.  WHAT LITTLE CONTROL THE ARMY
IMPOSED UPON PETITIONER EMANATED FROM HIS COMMANDING OFFICER IN
INDIANA. 

ONLY LAST TERM, THIS COURT HELD IN SCHLANGER, THAT A DISTRICT COURT
HAS JURISDICTION TO ISSUE A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. 2241,
TO A MILITARY CUSTODIAN, ONLY WHERE A COMMANDING OFFICER OR OTHER
CUSTODIAN IN THE CHAIN OF COMMAND IS FOUND WITHIN THE JUDICIAL
DISTRICT.  BECAUSE SCHLANGER HAD BEEN ASSIGNED TO A COMMAND IN GEORGIA,
AND NO OFFICER IN ARIZONA CONTROLLED HIS ACTIVITIES, THE DISTRICT COURT
OF ARIZONA HAD NO HABEAS JURISDICTION.  ATTEMPTING TO RECONCILE
SCHLANGER WITH THIS CASE, THE COURT TODAY SAYS: 

"IN SCHLANGER THE ONLY 'CUSTODIAN' OF THE SERVICEMAN WAS IN MOODY
AFB, GEORGIA.  WHILE THERE WERE ARMY OFFICERS IN ARIZONA, THERE WERE
NONE TO WHOM THE SERVICEMAN WAS REPORTING AND NONE WHO WERE SUPERVISING
HIS WORK THERE, THOUGH HE WAS ON ACTIVE DUTY.  MOREOVER, THE SERVICEMAN
IN THAT CASE WAS IN ARIZONA ONLY TEMPORARILY FOR AN EDUCATIONAL
PROJECT. 

     "IN THE PRESENT CASE CALIFORNIA IS STRAIT'S HOME.  HE WAS

  COMMISSIONED IN CALIFORNIA.  UP TO THE CONTROVERSY IN THE PRESENT

  CASE HE WAS ON RESERVE DUTY, NEVER ON ACTIVE DUTY, AND WHILE HE

  HAD GONE EAST FOR GRADUATE WORK IN LAW, CALIFORNIA HAD ALWAYS

  BEEN HIS HOME.  FORT ORD IN CALIFORNIA WAS WHERE HE PROCESSED HIS

  APPLICATION FOR CONSCIENTIOUS OBJECTOR DISCHARGE AND WHERE

  HEARINGS WERE HELD.  IT WAS IN CALIFORNIA WHERE HE HAD HAD HIS

  ONLY MEANINGFUL CONTACT WITH THE ARMY; AND HIS SUPERIORS THERE

  RECOMMENDED HIS DISCHARGE AS A CONSCIENTIOUS OBJECTOR."  ANTE, AT

  343. 

BUT THERE WERE NO OFFICERS IN CALIFORNIA TO WHOM THIS PETITIONER WAS
REPORTING, AND "NONE WHO WERE SUPERVISING HIS WORK THERE."  HIS CONTROL
BY THE ARMY HAS HERETOFORE CONSISTED ONLY OF REQUESTS FOR DELAYED
COMMENCEMENT OF ACTIVE DUTY, AND FOR DISCHARGE.  ALL SUCH REQUESTS WERE
ADDRESSED TO AND DECIDED BY HIS COMMANDING OFFICER IN INDIANA.  HIS
"MEANINGFUL CONTRACT" WITH THE ARMY WAS NOT IN CALIFORNIA, BUT
INDIANA.  HIS INTERVIEWS WITH STAFF OFFICERS AT FORT ORD NEITHER
CONSTITUTED THEM "SUPERIORS" NOR DID IT BRING THEM WITHIN PETITIONER'S
CHAIN OF COMMAND.  NO OFFICER OR COMMAND IN CALIFORNIA HAD AUTHORITY TO
PROVIDE THE RELIEF REQUESTED BY PETITIONER.  UNDER THE PRINCIPLE
ENUNCIATED IN SCHLANGER, THE NORTHERN DISTRICT OF CALIFORNIA LACKED
JURISDICTION TO ISSUE HABEAS CORPUS FOR WANT OF A CUSTODIAN WITHIN THE
DISTRICT.  EMPHASIZING THAT PETITIONER BROUGHT THIS HABEAS CORPUS SUIT
IN THE DISTRICT WHERE HIS HOME IS CANNOT CURE THAT DEFECT, CF. RUDICK
V. LAIRD, 412 F.2D 16(CA2 1969).  WE DEAL NOT WITH THE PROVISIONS OF A
VENUE STATUTE, BUT WITH THE ESTABLISHED REQUIREMENT THAT THE
PETITIONER'S CUSTODIAN BE WITHIN THE DISTRICT.  PETITIONER'S PRESENCE
IN HIS HOME STATE TO TAKE THE BAR EXAMINATION, AFTER A THREE-YEAR
ABSENCE WHILE ATTENDING LAW SCHOOL, AFFORDS HIM NO MORE SUPPORT THAT
DID SCHLANGER'S PRESENCE IN ARIZONA.     THE COURT SUBSTITUTES THE
APPROACH OF ARLEN V. LAIRD, 451 F.2D 684(CA2 1971), FOR ITS SCHLANGER
RULE.  ARLEN, INCORRECTLY CONCLUDING THAT SCHLANGER RESERVED THE
QUESTION PRESENTED HERE, /1/  HELD THAT THE TYPE OF CONTACTS BETWEEN
THE COMMANDING OFFICER AND A RESERVIST THAT HAVE BEEN FOUND TO SUPPORT
STATE JURISDICTION OVER NON-RESIDENTS UNDER CASES LIKE MCGEE V. INT'L
LIFE INS. CO., 355 U.S. 220(1957), AND INT'L SHOE CO. V. WASHINGTON,
326 U.S. 310(1945), WOULD ALSO SUFFICE FOR HABEAS JURISDICTION.  TO
ADOPT ARLEN IS TO ABANDON SCHLANGER.  BUT THE REASONS GIVEN BY THE
SECOND CIRCUIT IN ARLEN DO NOT SUPPORT A RESULT IN THAT CASE DIFFERENT
FROM SCHLANGER.  ARLEN NOTED THAT GOVERNMENT COUNSEL WERE ADEQUATELY
AVAILABLE IN ANY JUDICIAL DISTRICT, AND THE RECORDS COULD BE FORWARDED
FROM PETITIONER'S COMMAND TO THE FORUM DISTRICT.  THE SAME COULD HAVE
BEEN SAID OF SCHLANGER.  MOREOVER, THE GOVERNMENT CAN ASSERT THAT
INDIANA WOULD BE THE APPROPRIATE FORUM, FOR THE ACTIONS OF WHICH
PETITIONER COMPLAINS WERE TAKEN BY HTE COMMANDING OFFICER AND HIS
ADVISORY BOARD AT FORT BENJAMIN HARRISON AND PRESUMABLY THE PROPER
WITNESSES FOR THIS LITIGATION WERE THERE.  THESE FACTORS WOULD BE
APPROPRIATELY CONSIDERED IN A DETERMINATION AS TO VENUE OR FORUM NON
CONVENIENS BUT THEY ARE NOT A SUBSTITUTE FOR THE ACTUAL PRESENCE OF A
CUSTODIAN, WHICH SCHLANGER HELD WAS REQUIRED BY STATUTE. 

        II 

WHILE I AM SATISFIED THAT THE NINTH CIRCUIT CORRECTLY APPLIED
SCHLANGER AND ORDERED DISMISSAL OF THE HABEAS CORPUS PETITION FOR WANT
OF A CUSTODIAN WITHIN THE DISTRICT, THE ANALYSIS OF THE COURT IN
REACHING THE OPPOSITE CONCLUSION HIGHLIGHTS WHAT IS FOR ME THE MORE
SUBSTANTIAL ISSUE OF WHETHER PETITIONER WAS IN CUSTODY OF ANYONE. 

THE COURT BELIEVES THAT PETITIONER'S COMMANDING OFFICER WAS MERELY A
RECORD CENTER, AND SAYS THAT THE REALISTIC APPROACH IS TO RULE THAT
SUCH A RECORD CENTER IS PRESENT IN ALL STATES WHERE THERE ARE
RESERVISTS OVER WHOM IT HAS CUSTODY.  I BELIEVE THAT WHERE THE CONTROL
EXERCISED OVER PETITIONER IS SO ATTENUATED AS TO REQUIRE THE CONTACTS
BETWEEN HIMSELF AND HIS COMMANDING OFFICER TO BE WEIGHED FOR A
JURISDICTIONAL NEXUS, THE PROBLEM IS NOT WHERE THE CUSTODIAN MAY BE
FOUND, BUT WHETHER THE PETITIONER IS IN CUSTODY AT ALL.  THE MOST
REALISTIC APPROACH IS TO RECOGNIZE THAT CUSTODY AS A PREREQUISITE FOR
HABEAS CORPUS SIMPLY DOES NOT EXIST FOR AN UNATTACHED RESERVIST WHO IS
UNDER VIRTUALLY NO RESTRAINTS UPON WHERE HE MAY LIFE, WORK, OR STUDY,
AND WHOSE ONLY CONNECTION WITH THE ARMY IS A FUTURE OBLIGATION TO ENTER
ACTIVE DUTY.  THIS COURT HAS RECOGNIZED THAT A PERSON ON ACTIVE DUTY
WITH THE ARMED FORCES IS SUFFICIENTLY "IN CUSTODY" TO INVOKE HABEAS
CORPUS.  EAGLES V. SAMUELS, 329 U.S. 304(1946); SCHLANGER V. SEAMANS,
SUPRA; PARISI V. DAVIDSON, 405 U.S. 34(1972).  ASIDE FROM RULING THAT
RELEASE FROM ACTIVE TO INACTIVE DUTY DOES NOT MOOT A HABEAS PROCEEDING,
/2/  HOWEVER, THE COURT HAS NEVER CONSIDERED WHETHER A FUTURE
OBLIGATION TO COMMENCE ARMY DUTY IS A SUFFICIENTLY SEVERE RESTRAINT TO
SUPPORT HABEAS JURISDICTION. 

HABEAS CORPUS IS A POWERFUL REMEDY TO BE WIELDED PROMPTLY IN CASES
WHERE RESTRICTIONS ON INDIVIDUAL LIBERTY ARE SUBSTANTIAL.  THE
REQUIREMENT OF CUSTODY IS A PRIMARY PARAMETER FOR PRESERVING THE GREAT
WRIT FOR APPROPRIATE SITUATIONS.  IT IS UNDEFINED BY STATUTE, BUT
DEPENDS UPON THE SEVERITY OF RESTRAINT UPON LIBERTY THAT IS INVOLVED. 
JONES V. CUNNINGHAM, 371 U.S. 236(1963); DEVELOPMENTS IN THE LAW--
FEDERAL HABEAS CORPUS, 83 HAR.L.REV.  1038, 1973(1970). 

NOTIONS OF CUSTODY HAVE CHANGED OVER THE YEARS.  IN 1885, THIS COURT
HELD THAT A MILITARY ORDER RESTRICTING A SERVICEMAN TO THE CONFINES OF
THE DISTRICT OF COLUMBIA DID NOT PLACE HIM IN CUSTODY.  WALES V.
WHITNEY, 114 U.S. 564(1968).  JONES HELD THAT A PAROLEE WAS IN CUSTODY
BECAUSE HE WAS RESTRICTED TO THE COMMUNITY OF HIS PAROLE, NEEDED
SPECIAL PERMISSION TO UNDERTAKE SOME ACTIVITIES SUCH AS DRIVING AN
AUTO, AND WAS SUBJECT TO PROMPT REINCARCERATION WITH ONLY
ADMINISTRATIVE PROCEEDINGS IF HE VIOLATED PAROLE CONDITIONS.  IN
CARAFAS A CONVICTED FELON WHO WAS NEITHER IN PRISON NOR ON PAROLE WAS
HELD TO BE "IN CUSTODY" BECAUSE THE DISABILITIES OF HIS CONVICTION
PREVENTED HIM FROM ENGAGING IN MANY TYPES OF BUSINESSES, VOTING AT ANY
STATE ELECTION, OR SERVING AS A LABOR OFFICIAL OR JUROR. 

BUT EVEN IF THIS NONMILITARY STANDARD WERE TO BE APPLIED TO
PETITIONER, IT IS DIFFICULT TO PLACE HIM IN THAT CLASS OF PERSONS
LABORING UNDER SUBSTANTIAL RESTRAINTS FOR WHOM HABEAS CORPUS IS
RESERVED.  BY HIS OWN ADMISSION, PETITIONER "HAS NOT BEEN SUBJECT TO
MILITARY ORDERS, RESERVE MEETINGS OR SUMMER ACTIVE DUTY."  FROM ALL
THAT APPEARS IN THE RECORD, PETITIONER IS FREE TO GO ANYWHERE HE
DESIRES OR TO ENGAGE IN ANY ACTIVITY HE CHOOSES, AND IS NOT SUBJECT TO
ANY ARMY CONTROL UNTIL HE COMMENCES ACTIVE DUTY.  HIS SITUATION IS
INDISTINGUISHABLE FROM A PROSPECTIVE INDUCTEE, WHO IS NOT CONSIDERED TO
BE IN CUSTODY FOR HABEAS CORPUS PURPOSES UNTIL AFTER INDUCTION. 
DEROZARIO V. COMMANDING OFFICER, 390 F.2D 532(CA9 1967).  NEITHER
PRECEDENT NOR THE RAISON D'ETRE OF THE WRIT SANCTIONS THE RESULT
REACHED IN THIS CASE.  PETITIONER WOULD BE IN "CUSTODY" ONLY WHEN HE
REPORTED TO FORT GORDON, GEORGIA, PURSUANT TO HIS ORDERS, AND ONLY THEN
WOULD HE BE ENTITLED TO BRING HABEAS CORPUS. 

        III 

THERE IS YET ANOTHER SHORTCOMING IN PETITIONER'S CLAIM TO HABEAS
CORPUS. 

UNLIKE THOSE WHO ARE COVERED BY THE MILITARY SELECTIVE SERVICE ACT,
50 U.S.C. APP. 451 ET SEQ., THERE IS NO STATUTORY RIGHT AFFORDED
PETITIONER AND OTHER VOLUNTARY MEMBERS OF THE ARMED SERVICES TO BE
DISCHARGED AS CONSCIENTIOUS OBJECTORS.  UNDER DEPARTMENT OF DEFENSE
DIRECTIVE 1300.6 THE ARMED FORCES WILL APPROVE ADMINISTRATIVE
DISCHARGES ON A DISCRETIONARY BASIS.  BY ASSUMING THAT HABEAS CORPUS
REVIEW OF THE EXERCISE OF THIS DISCRETION IS PROPER, THE COURT AND THE
COURTS OF APPEALS APPLYING THE SAME STANDARDS OF REVIEW CALLED FOR
UNDER SEC. 6(J) OF THE MILITARY SELECTIVE SERVICE ACT, 81 STAT. 104, AS
AMENDED, 85 STAT. 351, /3/  HAVE FAILED TO RECOGNIZE WELL-ESTABLISHED
LIMITATIONS UPON HABEAS CORPUS IN MILITARY CASES, AND THE ALSO WELL
ESTABLISHED RESTRICTION UPON REVIEWING THE ADMINISTRATION OF THE ARMED
SERVICES. 

A DISTRICT COURT HAS POWER TO GRANT A WRIT OF HABEAS CORPUS ONLY
WHERE A PRISONER "IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR
LAWS OR TREATIES OF THE UNITED STATES"  /4/  OR "IS IN CUSTODY UNDER OR
BY COLOR OF THE AUTHORITY OF THE UNITED STATES."  /5/  PETITIONER HAS
VOLUNTARILY ASSUMED A RESERVE OFFICER'S COMMISSION AND THERE IS NO
INDICATION FROM THE RECORD THAT HIS PRESENT OBLIGATION VIOLATES EITHER
THE CONSTITUTION OR LAWS OF THE UNITED STATES.  NOR IS HE RESTRAINED
UNDER ANY COLOR OF AUTHORITY OF THE UNITED STATES THAT CANNOT BE TRACED
TO LEGITIMATE STATUTORY AUTHORIZATION.  OUR INQUIRY SHOULD GO NO
FURTHER. 

IN BURNS V. WILSON, 346 U.S. 137(1953), THE COURT REITERATED THE
RULE THAT THE SCOPE OF HABEAS CORPUS HAS ALWAYS BEEN NARROWER IN
MILITARY CASES THAN WHEN A PRISONER IS IN CIVIL CUSTODY.  THAT CASE
PERMITTED REVIEW OF A COURT-MARTIAL CONVICTION FOR CLAIMED VIOLATIONS
OF CONSTITUTIONAL DUE PROCESS WHERE THE MILITARY JUSTICE SYSTEM HAD
FAILED TO FULLY CONSIDER SUCH CLAIMS.  EXCEPT FOR CONSTITUTIONAL
VIOLATIONS, HOWEVER, RELIEF IS PROPER ONLY IF THE MILITARY HAD NO
JURISDICTION TO TAKE THE ACTION COMPLAINED OF. 

LACK OF JURISDICTION TO REVIEW REQUESTS FOR ADMINISTRATIVE DISCHARGE
HAS SIMILARLY BEEN WELL ESTABLISHED.  IN ORLOFF V. WILLOUGHBY, 345 U.S.
83(1953), THE COURT REFUSED TO REVIEW A MILITARY-DUTY ASSIGNMENT OR TO
ORDER A DISCHARGE ON THE GROUND THAT THE PETITIONER THERE HAD BEEN
UNLAWFULLY TREATED, RECOGNIZING THAT MILITARY DISCRETION IS NOT SUBJECT
TO REVIEW IN THE COURTS.  SEE ALSO NOYD V. MCNAMARA, 378 F.2D 538 (CA10
1967) (REFUSAL TO ORDER ASSIGNMENT TO NONOBJECTIONABLE DUTIES OR ACCEPT
RESIGNATION OF CONSCIENTIOUS OBJECTOR); UNITED STATES EX REL. SCHONBRUN
V. COMMANDING OFFICER, 403 F.2D 371(CA2 1968) (NO HABEAS CORPUS OR
MANDAMUS JURISDICTION TO REVIEW DENIAL OF HARDSHIP DISCHARGE REQUEST);
ANTONUK V. UNITED STATES, 445 F.2D 592(CA6 1971) (NO JURISDICTION TO
REVIEW PROMOTIONS). 

IT IS SAID THAT JURISDICTION IS ESTABLISHED TO REVIEW MILITARY
EXERCISE OF ADMINISTRATIVE DISCRETION WHERE THE PROMULGATED PROCEDURES
ARE NOT FOLLOWED.  AUTHORITY FOR THIS PROPOSITION IS STATED TO BE
SERVICE V. DULLES, 354 U.S. 363(1957), AND VITARELLI V. SEATON, 359
U.S. 535(1959).  ALTHOUGH THE PRINCIPLES OF THOSE CASES MIGHT NOT CARRY
OVER UNDIMINISHED TO THE MILITARY SERVICES, /6/  SOME LOWER COURTS HAVE
ASSUMED THAT THEY DO.  /7/  REVIEWING AN ADMINISTRATIVE DECISION FOR
CONFORMITY TO REGULATIONS, HOWEVER, WOULD AFFORD NO RELIEF TO
PETITIONER IN THIS CASE.  IF HIS APPLICATION FOR DISCHARGE WAS
PROCESSED AS REQUIRED BY DOD DIRECTIVE 1300.6 THE ARMY HAS FULFILLED
ITS RESPONSIBILITY REGARDLESS OF WHETHER ITS ULTIMATE CONCLUSION
CORRESPONDS TO THE DECISION THAT A COURT OF LAW WOULD MAKE.  IN THIS
CASE THE PROVISIONS OF DOD DIRECTIVE 1300.6 WERE APPLIED TO PETITIONER
BY ARMY REGULATION 135-25.  IT REQUIRES SUBMISSION OF A FORM REQUEST BY
PETITIONER, SUBSEQUENT INTERVIEWS WITH A CHAPLAIN, MEDICAL OFFICER, AND
AN "O-3" HEARING OFFICER, CONSIDERATION OF THE APPLICATION BY A BOARD
OF RECOMMENDATION, AND FINALLY ACTION BY PETITIONER'S COMMANDING
OFFICER.  ALL THESE PROCEDURES WERE FOLLOWED IN PETITIONER'S CASE.  THE
ARMY ACTED WITHIN ITS JURISDICTION IN DENYING THE REQUEST. 

HABEAS CORPUS WILL ISSUE WHERE A PERSON IS HELD IN CUSTODY UNDER
COLOR OF FEDERAL AUTHORITY, OR IN VIOLATION OF THE CONSTITUTION OR LAWS
OF THE UNITED STATES.  28 U.S.C. 2241(C)(1) AND (C)(3).  THERE IS NO
QUESTION THAT THE ARMY HAD JURISDICTION OVER PETITIONER AT LEAST TO THE
LIMITED EXTENT DISCUSSED ABOVE IN REFERENCE TO THE ISSUE OF CUSTODY. 
THERE IS ALSO NO QUESTION THAT THE ARMY IS UNDER NO STATUTORY COMMAND
TO DISCHARGE PETITIONER BEFORE THE EXPIRATION OF HIS CONTRACTED PERIOD
OF MILITARY SERVICE.  ACTING IN ACCORDANCE WITH ITS OWN PROCEDURES, IT
HAS CHOSEN NOT TO DO SO.  FOR ME, THIS ENDS THE PERMISSIBLE SCOPE OF
HABEAS CORPUS INQUIRY. 

/1/  "THE SUPREME COURT RESERVED DECISION ON THIS PRECISE QUESTION,
401 U.S.,AT 489, 491 N. 5 . . . AND CITED, APPARENTLY WITH APPROVAL,
DONIGIAN V. LAIRD, 308 F.SUPP.  449 (D. MD. 1969)," 451 F.2D, AT 686. 
BUT THE CITED PORTIONS OF SCHLANGER DEALT ONLY WITH THE QUESTION OF
CUSTODY, AND NOT WITH THE SEPARATE JURISDICTIONAL REQUIREMENT THAT A
CUSTODIAN BE PRESENT WITHIN THE JUDICIAL DISTRICT. 

/2/  GILLETTE V. UNITED STATES, 401 U.S. 437, 440 N. 2 (1971). 

/3/  MOST OF THE CIRCUITS HAVE PERMITTED HABEAS CORPUS REVIEW OF AN
APPLICATION FOR DISCHARGE UNDER DOD 1300.6.  E.G., UNITED STATES EX
REL. SHELDON V. O'MALLEY, 137 U.S.APP.D.C. 141, 420 F.2D 1344(1969);
BATES V. COMMANDER, 413 F.2D 475(CA1 1969); HAMMOND V. LENFEST, 398
F.2D 705(CA2 1968); BROWN V. MCNAMARA, 387 F.2D 150(CA3 1967); UNITED
STATES EX REL. BROOKS V. CLIFFORD, 409 F.2D 700(CA4 1969); BROWN V.
RESOR, 407 F.2D 281 (CA5 1969); PACKARD V. ROLLINS, 422 F.2D 525(CA8
1970); SERTIC V. LAIRD, 418 F.2D 915(CA9 1969). 

THIS COURT HAS CONSIDERED PETITIONS FOR HABEAS CORPUS UNDER DOD
1300.6 IN CRAYCROFT V. FERRALL, 397 U.S. 335(1970), AND GILLETTE V.
UNITED STATES, 401 U.S. 437(1971). 

/4/  28 U.S.C. 2241(C)(3). 

/5/  28 U.S.C. 2241(C)(1). 

/6/  "(WE CANNOT REVIEW THE MERITS OF APPELLANT'S PRESENT CLAIM THAT
THE AIR FORCE IN THE CASE AT BAR DID NOT COMPLY WITH ITS OWN
REGULATIONS IN REGARD TO APPELLANT.  SUCH A CLAIM MUST INDEED BE
STRAINED TO CONTAIN AN OVERTONE OF CONSTITUTIONAL INVALIDITY GIVING
RISE TO IMMEDIATE JUDICIAL REVIEW OF ITS APPLICATION."  NOYD V.
MCNAMARA, 378 F.2D 538, 540(CA10 1967). 

/7/  E.G., ANTONUK V. UNITED STATES, 445 F.2D 592(CA6 1971); SMITH
V. RESOR, 406 F.2D 141(CA2 1969). 

THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, AND MR. JUSTICE POWELL JOIN
PART I OF THIS DISSENT AND ON THAT GROUND WOULD AFFIRM THE JUDGMENT OF
THE COURT OF APPEALS. 

JOHN T. HANSEN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE MELVIN L. WULF, MICHAEL N. POLLET, AND PAUL HALVONIK. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR RESPONDENTS.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL MARDIAN, WM. TERRY
BRAY, AND ROBERT L. KEUCH. 

STANLEY F. FARRAR FILED A BRIEF FOR THE CENTRAL COMMITTEE FOR
CONSCIENTIOUS OBJECTORS ET AL. AS AMICI CURIAE URGING REVERSAL. 
..END :



JOHNSON V. LOUISIANA, 406 U.S. 356 


       JOHNSON V. LOUISIANA

        APPEAL FROM THE SUPREME COURT OF LOUISIANA

        NO. 69-5035.  ARGUED MARCH 1, 1971-- REARGUED JANUARY 10,

           1972-- DECIDED MAY 22, 1972 


A WARRANTLESS ARREST FOR ROBBERY WAS MADE OF APPELLANT AT HIS HOME ON
THE BASIS OF IDENTIFICATION FROM PHOTOGRAPHS, AND HE WAS COMMITTED BY A
MAGISTRATE.  THEREAFTER HE APPEARED IN A LINEUP, AT WHICH HE WAS
REPRESENTED BY COUNSEL, AND WAS IDENTIFIED BY THE VICTIM OF ANOTHER
ROBBERY.  HE WAS TRIED FOR THE LATTER OFFENSE BEFORE A 12-MAN JURY AND
CONVICTED BY A NINE-TO-THREE VERDICT, AS AUTHORIZED BY LOUISIANA LAW IN
CASES WHERE THE CRIME IS NECESSARILY PUNISHABLE AT HARD LABOR.  OTHER
STATE LAW PROVISIONS REQUIRE UNANIMITY FOR FIVE-MAN JURY TRIALS OF
OFFENSES IN WHICH THE PUNISHMENT MAY BE AT HARD LABOR AND FOR 12-MAN
JURY TRIALS OF CAPITAL CASES.  THE LOUISIANA SUPREME COURT AFFIRMED THE
CONVICTION, REJECTING APPELLANT'S CHALLENGE TO THE JURY-TRIAL
PROVISIONS AS VIOLATIVE OF DUE PROCESS AND EQUAL PROTECTION AND HIS
CLAIM THAT THE LINEUP IDENTIFICATION WAS A FORBIDDEN FRUIT OF AN
INVASION OF APPELLANT'S FOURTH AMENDMENT RIGHTS.  APPELLANT CONCEDED
THAT UNDER DUNCAN V. LOUISIANA, 391 U.S. 145, WHICH WAS DECIDED AFTER
HIS TRIAL BEGAN AND WHICH HAS NO RETROACTIVE EFFECT, THE SIXTH
AMENDMENT DOES NOT APPLY TO HIS CASE.  HELD: 

1.  THE PROVISIONS OF LOUISIANA LAW REQUIRING LESS-THAN-UNANIMOUS
JURY VERDICTS IN CRIMINAL CASES DO NOT VIOLATE THE DUE PROCESS CLAUSE
FOR FAILURE TO SATISFY THE REASONABLE-DOUBT STANDARD.  PP. 359-363. 

     (A) THE MERE FACT THAT THREE JURORS VOTE TO ACQUIT DOES NOT

  MEAN THAT THE NINE WHO VOTE TO CONVICT HAVE IGNORED THEIR

  INSTRUCTIONS CONCERNING PROOF BEYOND A REASONABLE DOUBT OR THAT

  THEY DO NOT HONESTLY BELIEVE THAT GUILT HAS BEEN THUS PROVED. 

  PP. 360-362. 

     (B) WANT OF JURY UNANIMITY DOES NOT ALONE ESTABLISH REASONABLE
DOUBT.  PP. 362-363. 

2.  THE LOUISIANA LEGAL SCHEME PROVIDING FOR UNANIMOUS VERDICTS IN
CAPITAL AND FIVE-MAN JURY CASES BUT FOR LESS-THAN-UNANIMOUS VERDICTS
OTHERWISE, AND WHICH VARIES THE DIFFICULTY OF PROVING GUILT WITH THE
GRAVITY OF THE OFFENSE, WAS DESIGNED TO SERVE THE RATIONAL PURPOSES OF
"FACILITATING), EXPEDITING), AND REDUCING) EXPENSE IN THE
ADMINISTRATION OF JUSTICE," AND DOES NOT CONSTITUTE AN INVIDIOUS
CLASSIFICATION VIOLATIVE OF EQUAL PROTECTION.  PP. 363-365. 

3.  SINCE NO EVIDENCE CONSTITUTING THE FRUIT OF AN ILLEGAL ARREST
WAS USED AT APPELLANT'S TRIAL, THE VALIDITY OF HIS ARREST IS NOT AT
ISSUE AND THE LINEUP WAS CONDUCTED, NOT BY THE "EXPLOITATION" OF THE
ARREST, BUT UNDER THE AUTHORITY OF APPELLANT'S COMMITMENT BY THE
MAGISTRATE, WHICH PURGED THE LINEUP PROCEDURE OF ANY "PRIMARY TAINT." 
P. 365. 

255 LA. 314, 230 SO.2D 825, AFFIRMED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED.  BLACKMUN, J.,
POST, P. 365, AND POWELL, J., POST, P. 366, FILED CONCURRING OPINIONS. 
DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL,
JJ., JOINED, POST.  P. 380.  BRENNAN, J., FILED A DISSENTING OPINION,
IN WHICH MARSHALL, J., JOINED, POST, P. 395.  STEWART, J., FILED A
DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ., JOINED, POST,
P. 397.  MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN,
J., JOINED, POST, P. 399. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

UNDER BOTH THE LOUISIANA CONSTITUTION AND CODE OF CRIMINAL
PROCEDURE, CRIMINAL CASES IN WHICH THE PUNISHMENT IS NECESSARILY AT
HARD LABOR ARE TRIED TO A JURY OF 12, AND THE VOTE OF NINE JURORS IS
SUFFICIENT TO RETURN EITHER A GUILTY OR NOT GUILTY VERDICT.  /1/  THE
PRINCIPAL QUESTION IN THIS CASE IS WHETHER THESE PROVISIONS ALLOWING
LESS-THAN-UNANIMOUS VERDICTS IN CERTAIN CASES ARE VALID UNDER THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT. 

        I 

APPELLANT JOHNSON WAS ARRESTED AT HIS HOME ON JANUARY 20, 1968. 
THERE WAS NO ARREST WARRANT, BUT THE VICTIM OF AN ARMED ROBBERY HAD
IDENTIFIED JOHNSON FROM PHOTOGRAPHS AS HAVING COMMITTED THE CRIME.  HE
WAS THEN IDENTIFIED AT A LINEUP, AT WHICH HE HAD COUNSEL, BY THE VICTIM
OF STILL ANOTHER ROBBERY.  THE LATTER CRIME IS INVOLVED IN THIS CASE. 
JOHNSON PLEADED NOT GUILTY, WAS TRIED ON MAY 14, 1968, BY A 12-MAN JURY
AND WAS CONVICTED BY A NINE-TO-THREE VERDICT.  HIS DUE PROCESS AND
EQUAL PROTECTION CHALLENGES TO THE LOUISIANA CONSTITUTIONAL AND
STATUTORY PROVISIONS WERE REJECTED BY THE LOUISIANA COURTS, 255 LA.
314, 230 SO.2D 825 (1970), AND HE APPEALED HERE.  WE NOTED PROBABLE
JURISDICTION.  400 U.S. 900 (1970).  CONCEDING THAT UNDER DUNCAN V.
LOUISIANA, 391 U.S. 145 (1968), THE SIXTH AMENDMENT IS NOT APPLICABLE
TO HIS CASE, SEE DESTEFANO V. WOODS, 392 U.S. 631 (1968), APPELLANT
PRESSES HIS EQUAL PROTECTION AND DUE PROCESS CLAIMS, TOGETHER WITH A
FOURTH AMENDMENT CLAIM ALSO REJECTED BY THE LOUISIANA SUPREME COURT. 
WE AFFIRM. 

        II 

APPELLANT ARGUES THAT IN ORDER TO GIVE SUBSTANCE TO THE REASONABLE
DOUBT STANDARD, WHICH THE STATE, BY VIRTUE OF THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, MUST SATISFY IN CRIMINAL CASES, SEE IN RE
WINSHIP, 397 U.S. 358, 363-364 (1970), THAT CLAUSE MUST BE CONSTRUED TO
REQUIRE A UNANIMOUS-JURY VERDICT IN ALL CRIMINAL CASES.  IN SO
CONTENDING, APPELLANT DOES NOT CHALLENGE THE INSTRUCTIONS IN THIS
CASE.  CONCEDEDLY, THE JURORS WERE TOLD TO CONVICT ONLY IF CONVINCED OF
GUILT BEYOND A REASONABLE DOUBT.  NOR IS THERE ANY CLAIM THAT, IF THE
VERDICT IN THIS CASE HAD BEEN UNANIMOUS, THE EVIDENCE WOULD HAVE BEEN
INSUFFICIENT TO SUPPORT IT.  APPELLANT FOCUSES INSTEAD ON THE FACT THAT
LESS THAN ALL JURORS VOTED TO CONVICT AND ARGUES THAT, BECAUSE THREE
VOTED TO ACQUIT, THE REASONABLE-DOUBT STANDARD HAS NOT BEEN SATISFIED
AND HIS CONVICTION IS THEREFORE INFIRM. 

WE NOTE AT THE OUTSET THAT THIS COURT HAS NEVER HELD JURY UNANIMITY
TO BE A REQUISITE OF DUE PROCESS OF LAW.  INDEED, THE COURT HAS MORE
THAN ONCE EXPRESSLY SAID THAT "(IN CRIMINAL CASES DUE PROCESS OF LAW IS
NOT DENIED BY A STATE LAW . . . WHICH DISPENSES WITH THE NECESSITY OF A
JURY OF TWELVE, OR UNANIMITY IN THE VERDICT."  JORDAN V. MASSACHUSETTS,
225 U.S. 167, 176 (1912) (DICTUM).  ACCORD, MAXWELL V. DOW, 176 U.S.
581, 602, 605 (1900) (DICTUM).  THESE STATEMENTS, MOREOVER, CO-EXISTED
WITH CASES INDICATING THAT PROOF OF GUILT BEYOND A REASONABLE DOUBT IS
IMPLICIT IN CONSTITUTIONS RECOGNIZING "THE FUNDAMENTAL PRINCIPLES THAT
ARE DEEMED ESSENTIAL FOR THE PROTECTION OF LIFE AND LIBERTY."  DAVIS V.
UNITED STATES, 160 U.S. 469, 488 (1895).  SEE ALSO LELAND V. OREGON,
343 U.S. 790, 802-803 (1952) (DISSENTING OPINION); BRINEGAR V. UNITED
STATES, 338 U.S. 160, 174 (1949); COFFIN V. UNITED STATES, 156 U.S.
432, 453-460 (1895).  /2/ 

ENTIRELY APART FROM THESE CASES, HOWEVER, IT IS OUR VIEW THAT THE
FACT OF THREE DISSENTING VOTES TO ACQUIT RAISES NO QUESTION OF
CONSTITUTIONAL SUBSTANCE ABOUT EITHER THE INTEGRITY OR THE ACCURACY OF
THE MAJORITY VERDICT OF GUILT.  APPELLANT'S CONTRARY ARGUMENT BREAKS
DOWN INTO TWO PARTS, EACH OF WHICH UE SHALL CONSIDER SEPARATELY:
FIRST, THAT NINE INDIVIDUAL JURORS WILL BE UNABLE TO VOTE
CONSCIENTIOUSLY IN FAVOR OF GUILT BEYOND A REASONABLY DOUBT WHEN THREE
OF THEIR COLLEAGUES ARE ARGUING FOR ACQUITTAL, AND SECOND, THAT GUILT
CANNOT BE SAID TO HAVE BEEN PROVED BEYOND A REASONABLE DOUBT WHEN ONE
OR MORE OF A JURY'S MEMBERS AT THE CONCLUSION OF DELIBERATION STILL
POSSESS SUCH A DOUBT.  NEITHER ARGUMENT IS PERSUASIVE. 

NUMEROUS CASES HAVE DEFINED A REASONABLY DOUBT AS ONE "'BASED ON
REASON WHICH ARISES FROM THE EVIDENCE OR LACK OF EVIDENCE.'"  UNITED
STATES V. JOHNSON, 343 F.2D 5, 6 N. 1 (CA 2 1965).  ACCORD, E.G.,
BISHOP V. UNITED STATES, 71 APP.D.C. 132, 138, 107 F.2D 297, 303
(1939); UNITED STATES V. SCHNEIDERMAN, 106 F.SUPP.  906, 927 (SC CAL.
1952); UNITED STATES V. HAUPT, 47 F.SUPP.  836, 840 (ND ILL. 1942),
REV'D ON OTHER GROUNDS, 136 F.2D 661 (CA 7 1943).  IN WINSHIP, SUPRA,
THE COURT RECOGNIZED THIS EVIDENTIARY STANDARD AS "'IMPRESSING) ON THE
TRIER OF FACT THE NECESSITY OF REACHING A SUBJECTIVE STATE OF CERTITUDE
OF THE FACTS IN ISSUE.'"  397 U.S.,AT 365.  IN CONSIDERING THE FIRST
BRANCH OF APPELLANT'S ARGUMENT, WE CAN FIND NO BASIS FOR HOLDING THAT
THE NINE JURORS WHO VOTED FOR HIS CONVICTION FAILED TO FOLLOW THEIR
INSTRUCTIONS CONCERNING THE NEED FOR PROOF BEYOND SUCH A DOUBT OR THAT
THE VOTE OF ANY ONE OF THE NINE FAILED TO REFLECT AN HONEST BELIEF THAT
GUILT HAD BEEN SO PROVED.  APPELLANT, IN EF?ECT, ASKS US TO ASSUME
THAT, WHEN MINORITY JURORS EXPRESS SINCERE DOUBTS ABOUT GUILT, THEIR
FELLOW JURORS WILL NEVERTHELESS IGNORE THEM AND VOTE TO CONVICT EVEN IF
DELIBERATION HAS NOT BEEN EXHAUSTED AND MINORITY JURORS HAVE GROUNDS
FOR ACQUITTAL WHICH, IF PURSUED, MIGHT PERSUADE MEMBERS OF THE MAJORITY
TO ACQUIT.  BUT THE MERE FACT THAT THREE JURORS VOTED TO ACQUIT DOES
NOT IN ITSELF DEMONSTRATE THAT, HAD THE NINE JURORS OF THE MAJORITY
ATTENDED FURTHER TO REASON AND THE EVIDENCE, ALL OR ONE OF THEM WOULD
HAVE DEVELOPED A REASONABLE DOUBT ABOUT GUILT.  WE HAVE NO GROUNDS FOR
BELIEVING THAT MAJORITY JURORS, AWARE OF THEIR RESPONSIBILITY AND POWER
OVER THE LIBERTY OF THE DEFENDANT, WOULD SIMPLY REFUSE TO LISTEN TO
ARGUMENTS PRESENTED TO THEM IN FAVOR OF ACQUITTAL, TERMINATE
DISCUSSION, AND RENDER A VERDICT.  ON THE CONTRARY IT IS FAR MORE
LIKELY THAT A JUROR PRESENTING REASONED ARGUMENT IN FAVOR OF ACQUITTAL
WOULD EITHER HAVE HIS ARGUMENTS ANSWERED OR WOULD CARRY ENOUGH OTHER
JURORS WITH HIM TO PREVENT CONVICTION.  A MAJORITY WILL CEASE
DISCUSSION AND OUTVOTE A MINORITY ONLY AFTER REASONED DISCUSSION HAS
CEASED TO HAVE PERSUASIVE EFFECT OR TO SERVE ANY OTHER PURPOSE-- WHEN A
MINORITY, THAT IS, CONTINUES TO INSIST UPON ACQUITTAL WITHOUT HAVING
PERSUASIVE REASONS IN SUPPORT OF ITS POSITION.  AT THAT JUNCTURE THERE
IS NO BASIS FOR DENIGRATING THE VOTE OF SO LARGE A MAJORITY OF THE JURY
OR FOR REFUSING TO ACCEPT THEIR DECISION AS BEING, AT LEAST IN THEIR
MINDS, BEYOND A REASONABLE DOUBT.  INDEED, AT THIS POINT, A "DISSENTING
JUROR SHOULD CONSIDER WHETHER HIS DOUBT WAS A REASONABLY ONE . . .
(WHEN IT MADE) NO IMPRESSION UPON THE MINDS OF SO MANY MEN, EQUALLY
HONEST, EQUALLY INTELLIGENT WITH HIMSELF."  ALLEN V. UNITED STATES, 164
U.S. 492, 501 (1896).  APPELLANT OFFERS NO EVIDENCE THAT MAJORITY
JURORS SIMPLY IGNORE THE REASONABLY DOUBTS OF THEIR COLLEAGUES OR
OTHERWISE ACT IRRESPONSIBLY IN CASTING THEIR VOTES IN FAVOR OF
CONVICTION, AND BEFORE WE ALTER OUR OWN LONGSTANDING PERCEPTIONS ABOUT
JURY BEHAVIOR AND OVERTURN A CONSIDERED LEGISLATIVE JUDGMENT THAT
UNANIMITY IS NOT ESSENTIAL TO REASONED JURY VERDICTS, WE MUST HAVE SOME
BASIS FOR DOING SO OTHER THAN UNSUPPORTED ASSUMPTIONS. 

WE CONCLUDE, THEREFORE, THAT, AS TO THE NINE JURORS WHO VOTED TO
CONVICT, THE STATE SATISFIED ITS BURDEN OF PROVING GUILT BEYOND ANY
REASONABLY DOUBT.  THE REMAINING QUESTION UNDER THE DUE PROCESS CLAUSE
IS WHETHER THE VOTE OF THREE JURORS FOR ACQUITTAL CAN BE SAID TO
IMPEACH THE VERDICT OF THE OTHER NINE AND TO DEMONSTRATE THAT GUILT WAS
NOT IN FACT PROVED BEYOND SUCH DOUBT.  WE HOLD THAT IT CANNOT. 

OF COURSE, THE STATE'S PROOF COULD PERHAPS BE REGARDED AS MORE
CERTAIN IF IT HAD CONVINCED ALL 12 JURORS INSTEAD OF ONLY NINE; IT
WOULD HAVE BEEN EVEN MORE COMPELLING IF IT HAD BEEN REQUIRED TO
CONVINCE AND HAD, IN FACT, CONVINCED 24 OR 36 JURORS.  BUT THE FACT
REMAINS THAT NINE JURORS-- A SUBSTANTIAL MAJORITY OF THE JURY-- WERE
CONVINCED BY THE EVIDENCE.  IN OUR VIEW DISAGREEMENT OF THREE JURORS
DOES NOT ALONE ESTABLISH REASONABLE DOUBT, PARTICULARLY WHEN SUCH A
HEAVY MAJORITY OF THE JURY, AFTER HAVING CONSIDERED THE DISSENTERS'
VIEWS, REMAINS CONVINCED OF GUILT.  THAT RATIONAL MEN DISAGREE IS NOT
IN ITSELF EQUIVALENT TO A FAILURE OF PROOF BY THE STATE, NOR DOES IT
INDICATE INFIDELITY TO THE REASONABLE-DOUBT STANDARD.  JURY VERDICTS
FINDING GUILT BEYOND A REASONABLY DOUBT ARE REGULARLY SUSTAINED EVEN
THOUGH THE EVIDENCE WAS SUCH THAT THE JURY WOULD HAVE BEEN JUSTIFIED IN
HAVING A REASONABLY DOUBT, SEE UNITED STATES V. QUARLES, 387 F.2D 551,
554 (CA 4 1967); BELL V. UNITED STATES, 185 F.2D 302, 310 (CA 4 1950);
EVEN THOUGH THE TRIAL JUDGE MIGHT NOT HAVE REACHED THE SAME CONCLUSION
AS THE JURY, SEE TAKAHASHI V. UNITED STATES, 143 F.2D 118, 122 (CA 9
1944); AND EVEN THOUGH APPELLATE JUDGES ARE CLOSELY DIVIDED ON THE
ISSUE WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION. 
SEE UNITED STATES V. JOHNSON, 140 U.S.APP.D.C. 54, 60, 433 F.2D 1160,
1166 (1970); UNITED STATES V. MANUEL-BACA, 421 F.2D 781, 783 (CA9
1970).  THAT WANT OF JURY UNANIMITY IS NOT TO BE EQUATED WITH THE
EXISTENCE OF A REASONABLY DOUBT EMERGES EVEN MORE CLEARLY FROM THE FACT
THAT WHEN A JURY IN A FEDERAL COURT, WHICH OPERATES UNDER THE UNANIMITY
RULE AND IS INSTRUCTED TO ACQUIT A DEFENDANT IF IT HAS A REASONABLY
DOUBT ABOUT HIS GUILT, SEE HOLT V. UNITED STATES, 218 U.S. 245, 253
(1910), AGNEW V. UNITED STATES, 165 U.S. 36, 51 (1897); W. MATHES & E.
DEVITT, FEDERAL JURY PRACTICE AND INSTRUCTIONS SEC. 8.01 (1965), CANNOT
AGREE UNANIMOUSLY UPON A VERDICT, THE DEFENDANT IS NOT ACQUITTED, BUT
IS MERELY GIVEN A NEW TRIAL.  DOWNUM V. UNITED STATES, 372 U.S. 734,
736 (1963); DREYER V. ILLINOIS, 187 U.S. 71, 85-86 (1902); UNITED
STATES V. PEREZ, 9 WHEAT.  579, 580 (1824).  IF THE DOUBT OF A MINORITY
OF JURORS INDICATORS THE EXISTENCE OF A REASONABLY DOUBT, IT WOULD
APPEAR THAT A DEFENDANT SHOULD RECEIVE A DIRECTED VERDICT OF ACQUITTAL
RATHER THAN A RETRIAL.  WE CONCLUDE, THEREFORE, THAT VERDICTS RENDERED
BY NINE OUT OF 12 JURORS ARE NOT AUTOMATICALLY INVALIDATED BY THE
DISAGREEMENT OF THE DISSENTING THREE.  APPELLANT WAS NOT DEPRIVED OF
DUE PROCESS OF LAW. 

        III 

APPELLANT ALSO ATTACKS AS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE
THE PROVISIONS OF LOUISIANA LAW REQUIRING UNANIMOUS VERDICTS IN CAPITAL
AND FIVE-MAN JURY CASES, BUT PERMITTING LESS-THAN-UNANIMOUS VERDICTS IN
CASES SUCH AS HIS.  WE CONCLUDE, HOWEVER, THAT THE LOUISIANA STATUTORY
SCHEME SERVES A RATIONAL PURPOSE AND IS NOT SUBJECT TO CONSTITUTIONAL
CHALLENGE. 

IN ORDER TO "FACILITATE, EXPEDITE, AND REDUCE EXPENSE IN THE
ADMINISTRATION OF CRIMINAL JUSTICE," STATE V. LEWIS, 129 LA. 800, 804,
56 SO. 893, 894 (1911), LOUISIANA HAS PERMITTED LESS SERIOUS CRIMES TO
BE TRIED BY FIVE JURORS WITH UNANIMOUS VERDICTS, MORE SERIOUS CRIMES
HAVE REQUIRED THE ASSENT OF NINE OF 12 JURORS, AND FOR THE MOST SERIOUS
CRIMES A UNANIMOUS VERDICT OF 12 JURORS IS STIPULATED.  IN APPELLANT'S
CASE, NINE JURORS RATHER THAN FIVE OR 12 WERE REQUIRED FOR A VERDICT. 
WE DISCERN NOTHING INVIDIOUS IN THIS CLASSIFICATION.  WE HAVE HELD THAT
THE STATES ARE FREE UNDER THE FEDERAL CONSTITUTION TO TRY DEFENDANTS
WITH JURIES OF LESS THAN 12 MEN.  WILLIAMS V. FLORIDA, 399 U.S. 78
(1970).  THREE JURORS HERE VOTED TO ACQUIT, BUT FROM WHAT WE HAVE
EARLIER SAID, THIS DOES NOT DEMONSTRATE THAT APPELLANT WAS CONVICTED ON
A LOWER STANDARD OF PROOF.  TO OBTAIN A CONVICTION IN ANY OF THE
CATEGORIES UNDER LOUISIANA LAW, THE STATE MUST PROVE GUILT BEYOND
REASONABLE DOUBT, BUT THE NUMBER OF JURORS WHO MUST BE SO CONVINCED
INCREASES WITH THE SERIOUSNESS OF THE CRIME AND THE SEVERITY OF THE
PUNISHMENT THAT MAY BE IMPOSED.  WE PERCEIVE NOTHING UNCONSTITUTIONAL
OR INVIDIOUSLY DISCRIMINATORY, HOWEVER, IN A STATE'S INSISTING THAT ITS
BURDEN OF PROOF BE CARRIED WITH MORE JURORS WHERE MORE SERIOUS CRIMES
OR MORE SEVERE PUNISHMENTS ARE AT ISSUE. 

APPELLANT NEVERTHELESS INSISTS THAT DISPENSING WITH UNANIMITY IN HIS
CASE DISADVANTAGED HIM AS COMPARED WITH THOSE WHO COMMIT LESS SERIOUS
OR CAPITAL CRIMES.  WITH RESPECT TO THE LATTER, HE IS CORRECT; THE
STATE DOES MAKE CONVICTION MORE DIFFICULT BY REQUIRING THE ASSENT OF
ALL 12 JURORS.  APPELLANT MIGHT WELL HAVE BEEN ULTIMATELY ACQUITTED HAD
HE COMMITTED A CAPITAL OFFENSE.  BUT AS WE HAVE INDICATED, THIS DOES
NOT CONSTITUTE A DENIAL OF EQUAL PROTECTION OF THE LAW; THE STATE MAY
TREAT CAPITAL OFFENDERS DIFFERENTLY WITHOUT VIOLATING THE
CONSTITUTIONAL RIGHTS OF THOSE CHARGED WITH LESSER CRIMES.  AS TO THE
CRIMES TRIABLE BY A FIVE-MAN JURY, IF APPELLANT'S POSITION IS THAT IT
IS EASIER TO CONVINCE NINE OF 12 JURORS THAN TO CONVINCE ALL OF FIVE,
HE IS SIMPLY CHALLENGING THE JUDGMENT OF THE LOUISIANA LEGISLATURE. 
THAT BODY OBVIOUSLY INTENDED TO VARY THE DIFFICULTY OF PROVING GUILT
WITH THE GRAVITY OF THE OFFENSE AND THE SEVERITY OF THE PUNISHMENT.  WE
REMAIN UNCONVINCED BY ANYTHING APPELLANT HAS PRESENTED THAT THIS
LEGISLATIVE JUDGMENT WAS DEFECTIVE IN ANY CONSTITUTIONAL SENSE. 
IV 

APPELLANT ALSO ARGUES THAT HIS NIGHTTIME ARREST WITHOUT A WARRANT
WAS UNLAWFUL IN THE ABSENCE OF A VALID EXCUSE FOR FAILING TO OBTAIN A
WARRANT AND, FURTHER, THAT HIS SUBSEQUENT LINEUP IDENTIFICATION WAS A
FORBIDDEN FRUIT OF THE CLAIMED INVASION OF HIS FOURTH AMENDMENT
RIGHTS.  THE VALIDITY OF JOHNSON'S ARREST, HOWEVER, IS BESIDE THE POINT
HERE, FOR IT IS CLEAR THAT NO EVIDENCE THAT MIGHT PROPERLY BE
CHARACTERIZED AS THE FRUIT OF AN ILLEGAL ENTRY AND ARREST WAS USED
AGAINST HIM AT HIS TRIAL.  PRIOR TO THE LINEUP, AT WHICH JOHNSON WAS
REPRESENTED BY COUNSEL, HE WAS BROUGHT BEFORE A COMMITTING MAGISTRATE
TO ADVISE HIM OF HIS RIGHTS AND SET BAIL.  AT THE TIME OF THE LINEUP,
THE DETENTION OF THE APPELLANT WAS UNDER THE AUTHORITY OF THIS
COMMITMENT.  CONSEQUENTLY, THE LINEUP WAS CONDUCTED NOT BY
"EXPLOITATION" OF THE CHALLENGED ARREST BUT "BY MEANS SUFFICIENTLY
DISTINGUISHABLE TO BE PURGED OF THE PRIMARY TAINT."  WONG SUN V. UNITED
STATES, 371 U.S. 471, 488 (1963). 

THE JUDGMENT OF THE SUPREME COURT OF LOUISIANA IS THEREFORE

     AFFIRMED. 

/1/  LA. CONST., ART. VIII, SEC. 41, PROVIDES: 

"SECTION 41.  THE LEGISLATURE SHALL PROVIDE FOR THE ELECTION AND
DRAWING OF COMPETENT AND INTELLIGENT JURORS FOR THE TRIAL OF CIVIL AND
CRIMINAL CASES; PROVIDED, HOWEVER, THAT NO WOMAN SHALL BE DRAWN FOR
JURY SERVICE UNLESS SHE SHALL HAVE PREVIOUSLY FILED WITH THE CLERK OF
THE DISTRICT COURT A WRITTEN DECLARATION OF HER DESIRE TO BE SUBJECT TO
SUCH SERVICE.  ALL CASES IN WHICH THE PUNISHMENT MAY NOT BE AT HARD
LABOR SHALL, UNTIL OTHERWISE PROVIDED BY LAW, BE TRIED BY THE JUDGE
WITHOUT A JURY.  CASES, IN WHICH THE PUNISHMENT MAY BE AT HARD LABOR,
SHALL BE TRIED BY A JURY OF FIVE, ALL OF WHOM MUST CONCUR TO RENDER A
VERDICT; CASES, IN WHICH THE PUNISHMENT IS NECESSARILY AT HARD LABOR,
BY A JURY OF TWELVE, NINE OF WHOM MUST CONCUR TO RENDER A VERDICT;
CASES IN WHICH THE PUNISHMENT MAY BE CAPITAL, BY A JURY OF TWELVE, ALL
OF WHOM MUST CONCUR TO RENDER A VERDICT." 

LA. CODE CRIM. PROC., ART. 782, PROVIDES: 

"CASES IN WHICH THE PUNISHMENT MAY BE CAPITAL SHALL BE TRIED BY A
JURY OF TWELVE JURORS, ALL OF WHOM MUST CONCUR TO RENDER A VERDICT. 
CASES IN WHICH THE PUNISHMENT IS NECESSARILY AT HARD LABOR SHALL BE
TRIED BY A JURY COMPOSED OF TWELVE JURORS, NINE OF WHOM MUST CONCUR TO
RENDER A VERDICT.  CASES IN WHICH THE PUNISHMENT MAY BE IMPRISONMENT AT
HARD LABOR, SHALL BE TRIED BY A JURY COMPOSED OF FIVE JURORS, ALL OF
WHOM MUST CONCUR TO RENDER A VERDICT.  EXCEPT AS PROVIDED IN ARTICLE
780, TRIAL BY JURY MAY NOT BE WAIVED." 

/2/  COFFIN CONTAINS A LENGTHY DISCUSSION ON THE REQUIREMENT OF
PROOF BEYOND A REASONABLE DOUBT AND OTHER SIMILAR STANDARDS OF PROOF IN
ANCIENT HEBREW, GREEK, AND ROMAN LAW, AS WELL AS IN THE COMMON LAW OF
ENGLAND.  THIS DISCUSSION SUGGESTS THAT THE COURT OF THE LATE 19TH
CENTURY WOULD HAVE HELD THE STATES BOUND BY THE REASONABLE-DOUBT
STANDARD UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ON
THE ASSUMPTION THAT THE STANDARD WAS ESSENTIAL TO A CIVILIZED SYSTEM OF
CRIMINAL PROCEDURE.  SEE GENERALLY DUNCAN V. LOUISIANA, 391 U.S. 145,
149-150, N. 14 (1968). 

MR. JUSTICE BLACKMUN, CONCURRING.  /1/ 

I JOIN THE COURT'S OPINION AND JUDGMENT IN EACH OF THESE CASES.  I
ADD ONLY THE COMMENT, WHICH SHOULD BE OBVIOUS AND SHOULD NOT NEED
SAYING, THAT IN SO DOING I DO NOT IMPLY THAT I REGARD A STATE'S SPLIT
VERDICT SYSTEM AS A WISE ONE.  MY VOTE MEANS ONLY THAT I CANNOT
CONCLUDE THAT THE SYSTEM IS CONSTITUTIONALLY OFFENSIVE.  WERE I A
LEGISLATOR, I WOULD DISFAVOR IT AS A MATTER OF POLICY.  OUR TASK HERE,
HOWEVER, IS NOT TO PURSUE AND STRIKE DOWN WHAT HAPPENS TO IMPRESS US AS
UNDESIRABLE LEGISLATIVE POLICY. 

I DO NOT HESITATE TO SAY, EITHER, THAT A SYSTEM EMPLOYING A 7-5
STANDARD, RATHER THAN A 9-3 OR 75% MINIMUM, WOULD AFFORD ME GREAT
DIFFICULTY.  AS MR. JUSTICE WHITE POINTS OUT, ANTE, AT 362, "A
SUBSTANTIAL MAJORITY OF THE JURY" ARE TO BE CONVINCED.  THAT IS ALL
THAT IS BEFORE US IN EACH OF THESE CASES. 

/1/  (THIS OPINION APPLIES ALSO TO NO. 19-5046, APODACA ET AL. V.
OREGON, POST, P. 404.) 

MR. JUSTICE POWELL, CONCURRING IN NO. 69-5035 AND CONCURRING IN THE
JUDGMENT IN NO. 69-5046. 

I CONCUR IN THE JUDGMENT OF THE COURT THAT CONVICTIONS BASED ON N
LESS-THAN-UNANIMOUS JURY VERDICTS IN THESE CASES DID NOT DEPRIVE
CRIMINAL DEFENDANTS OF DUE PROCESS OF LAW UNDER THE FOURTEENTH
AMENDMENT.  AS MY REASONS FOR REACHING THIS CONCLUSION IN THE OREGON
CASE DIFFER FROM THOSE EXPRESSED IN THE PLURALITY OPINION OF MR.
JUSTICE WHITE, I WILL STATE MY VIEWS SEPARATELY. 

        I

        69-5035 

DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), STANDS FOR THE PROPOSITION
THAT CRIMINAL DEFENDANTS IN STATE COURTS ARE ENTITLED TO TRIAL BY
JURY.  /1/  THE SOURCE OF THAT RIGHT IS THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  DUE PROCESS, AS CONSISTENTLY INTERPRETED BY THIS
COURT, COMMANDS THAT CITIZENS SUBJECTED TO CRIMINAL PROCESS IN STATE
COURTS BE ACCORDED THOSE RIGHTS THAT ARE FUNDAMENTAL TO A FAIR TRIAL IN
THE CONTEST OF OUR "AMERICAN SCHEME OF JUSTICE."  ID., AT 149.  THE
RIGHT OF AN ACCUSED PERSON TO TRIAL BY A JURY OF HIS PEERS WAS A
CHERISHED ELEMENT OF THE ENGLISH COMMON LAW LONG BEFORE THE AMERICAN
REVOLUTION.  IN THIS COUNTRY, PRIOR TO DUNCAN, EVERY STATE HAD ADOPTED
A CRIMINAL ADJUDICATORY PROCESS CALLING FOR THE EXTENSIVE USE OF PETIT
JURIES.  ID., AT 150 N. 14; TURNER V. LOUISIANA, 379 U.S. 466, 471 N. 9
(1965).  BECAUSE IT ASSURES THE INTERPOSITION OF AN IMPARTIAL
ASSESSMENT OF ONE'S PEERS BETWEEN THE DEFENDANT AND HIS ACCUSERS, THE
RIGHT TO TRIAL BY JURY DESERVEDLY RANKS AS A FUNDAMENTAL OF OUR SYSTEM
OF JURISPRUDENCE.  WITH THIS PRINCIPLE OF DUE PROCESS, I AM IN FULL
ACCORD. 

IN DESTEFANO V. WOODS, 392 U.S. 631 (1968), AN OREGON PETITIONER
SOUGHT TO RAISE THE QUESTION, LEFT OPEN IN DUNCAN, WHETHER THE RIGHT TO
JURY TRIAL IN A STATE COURT ALSO CONTEMPLATES THE RIGHT TO A UNANIMOUS
VERDICT.  /2/  BECAUSE THE COURT CONCLUDED THAT DUNCAN WAS NOT TO HAVE
RETROACTIVE APPLICABILITY, IT FOUND IT UNNECESSARY TO DECIDE WHETHER
THE FOURTEENTH AMENDMENT REQUIRES UNANIMITY.  THE TRIAL IN THE CASE
BEFORE THE COURT AT THAT TIME OCCURRED SEVERAL YEARS PRIOR TO MAY 20,
1968, THE DATE OF DECISION IN DUNCAN.  IN THE LOUISIANA CASE NOW BEFORE
US, THE PETITIONER ALSO WAS CONVICTED BY A LESS-THAN-UNANIMOUS VERDICT
BEFORE DUNCAN WAS DECIDED.  ACCORDINGLY, I READ DESTEFANO AS
FORECLOSING CONSIDERATION IN THIS CASE OF THE QUESTION WHETHER JURY
TRIAL AS GUARANTEED BY THE DUE PROCESS CLAUSE CONTEMPLATES A COROLLARY
REQUIREMENT THAT ITS JUDGMENT BE UNANIMOUS. 

INDEED, IN JOHNSON V. LOUISIANA, APPELLANT CONCEDES THAT THE
NONRETROACTIVITY OF DUNCAN PREVENTS HIM FROM RAISING HIS DUE PROCESS
ARGUMENT IN THE CLASSIC "FUNDAMENTAL FAIRNESS" LANGUAGE ADOPTED THERE. 
INSTEAD HE CLAIMS THAT HE IS DEPRIVED OF DUE PROCESS BECAUSE A
CONVICTION IN WHICH ONLY NINE OF 12 JURORS JOINED IS NOT ONE PREMISED
ON A FINDING OF GUILT BEYOND A REASONABLY DOUBT, HELD TO BE A REQUISITE
ELEMENT OF DUE PROCESS IN IN RE WINSHIP, 397 U.S. 358, 364 (1970).  FOR
THE REASONS STATED IN THE MAJORITY OPINION, I DO NOT AGREE THAT
LOUISIANA'S LESS-THAN-UNANIMOUS VERDICT RULE UNDERCUTS THE APPLICABLE
STANDARD OF PROOF IN CRIMINAL PROSECUTIONS IN THAT STATE. 

APPELLANT ALSO ASKS THIS COURT TO FIND A VIOLATION OF THE EQUAL
PROTECTION CLAUSE IN LOUISIANA'S CONSTITUTIONAL AND STATUTORY
PROVISIONS ESTABLISHING THE CONTOURS OF THE JURY TRIAL RIGHT IN THAT
STATE.  THE CHALLENGED PROVISIONS DIVIDE THOSE ACCUSED OF CRIMES INTO
THREE CATEGORIES DEPENDING ON THE SEVERITY OF THE POSSIBLE PUNISHMENT:
THOSE CHARGED WITH OFFENSES FOR WHICH THE PUNISHMENT MIGHT BE AT HARD
LABOR ARE ENTITLED TO A FIVE-JUROR, UNANIMOUS VERDICT: THOSE CHARGED
WITH OFFENSES FOR WHICH THE PUNISHMENT WILL NECESSARILY BE AT HARD
LABOR ARE ARE ENTITLED TO A VERDICT IN WHICH NINE OF 12 JURORS MUST
CONCUR; AND THOSE CHARGED WITH CAPITAL OFFENSES ARE ENTITLED TO A 12
JUROR, UNANIMOUS VERDICT.  LA. CONST., ART. VII, SEC. 41; LA. CODE
CRIM. PROC., ART. 782.  SUCH DISTINCTIONS BETWEEN CLASSES OF DEFENDANTS
DO NOT CONSTITUTE INVIDIOUS DISCRIMINATION AGAINST ANY ONE OF THE
CLASSES UNLESS THE STATE'S CLASSIFICATION CAN BE SAID TO LACK A
REASONABLE OR RATIONAL BASIS.  WE HAVE BEEN SHOWN NO REASON TO QUESTION
THE RATIONALITY OF LOUISIANA'S TRI-LEVEL SYSTEM.  I, THEREFORE, JOIN
THE COURT'S OPINION IN JOHNSON V. LOUISIANA AFFIRMING THE DECISION
BELOW.  /3/

II

        69-5046 

IN THE OREGON CASE DECIDED TODAY, APODACA V. OREGON, THE TRIALS
OCCURRED AFTER DUNCAN WAS DECIDED.  THE QUESTION LEFT UNANSWERED IN
DUNCAN AND DESTEFANO IS THEREFORE SQUARELY PRESENTED.  I CONCUR IN THE
PLURALITY OPINION IN THIS CASE INSOFAR AS IT CONCLUDES THAT A DEFENDANT
IN A STATE COURT MAY CONSTITUTIONALLY BE CONVICTED BY LESS THAN A
UNANIMOUS VERDICT, BUT I AM NOT IN ACCORD WITH A MAJOR PREMISE UPON
WHICH THAT JUDGMENT IS BASED.  ITS PREMISE IS THAT THE CONCEPT OF JURY
TRIAL, AS APPLICABLE TO THE STATES UNDER THE FOURTEENTH AMENDMENT, MUST
BE IDENTICAL IN EVERY DETAIL TO THE CONCEPT REQUIRED IN FEDERAL COURTS
BY THE SIXTH AMENDMENT.  /4/  I DO NIT THINK THAT ALL OF THE ELEMENTS
OF JURY TRIAL WITHIN THE MEANING OF THE SIXTH AMENDMENT ARE NECESSARILY
EMBODIED IN OR INCORPORATED INTO THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  AS MR. JUSTICE FORTAS, CONCURRING IN DUNCAN V.
LOUISIANA, 391 U.S.,AT 213, SAID: 

"NEITHER LOGIC NOR HISTORY NOR THE INTENT OF THE DRAFTSMEN OF THE
FOURTEENTH AMENDMENT CAN POSSIBLY BE SAID TO REQUIRE THAT THE SIXTH
AMENDMENT OR ITS JURY TRIAL PROVISION BE APPLIED TO THE STATES TOGETHER
WITH THE TOTAL GLOSS THAT THIS COURT DECISIONS HAVE SUPPLIED." 

IN AN UNBROKEN LINE OF CASES REACHING BACK INTO THE LATE 1800'S, THE
JUSTICES OF THIS COURT HAVE RECOGNIZED, VIRTUALLY WITHOUT DISSENT, THAT
UNANIMITY IS ONE OF THE INDISPENSABLE FEATURES OF FEDERAL JURY TRIAL. 
ANDRES V. UNITED STATES, 333 U.S. 740, 748-749 (1948); PATTON V. UNITED
STATES, 281 U.S. 276, 288-290 (1930); HAWAII V. MANKICHI, 190 U.S. 197,
211-212 (1903) (SEE ALSO MR. JUSTICE HARLAN'S DISSENTING OPINION);
MAXWELL V. DOW, 176 U.S. 581, 586 (1900) (SEE ALSO MR. JUSTICE HARLAN'S
DISSENTING OPINION); THOMPSON V. UTAH, 170 U.S. 343, 355 (1898).  /5/
IN THESE CASES, THE COURT HAS PRESUMED THAT UNANIMOUS VERDICTS ARE
ESSENTIAL IN FEDERAL JURY TRIALS, NOT BECAUSE UNANIMITY IS NECESSARILY
FUNDAMENTAL TO THE FUNCTION PERFORMED BY THE JURY, BUT BECAUSE THAT
RESULT IS MANDATED BY HISTORY.  /6/  THE REASONING THAT RUNS THROUGHOUT
THIS COURT'S SIXTH AMENDMENT PRECEDENTS IS THAT, IN AMENDING THE
CONSTITUTION TO GUARANTEE THE RIGHT TO JURY TRIAL, THE FRAMERS DESIRED
TO PRESERVE THE JURY SAFEGUARD AS IT WAS KNOWN TO THEM AT COMMON LAW. 
/7/  AT THE TIME THE BILL OF RIGHTS WAS ADOPTED, UNANIMITY HAD LONG
BEEN ESTABLISHED AS ONE OF THE ATTRIBUTES OF A JURY CONVICTION AT
COMMON LAW.  /8/  IT THEREFORE SEEMS TO ME, IN ACCORD BOTH WITH HISTORY
AND PRECEDENT, THAT THE SIXTH AMENDMENT REQUIRES A UNANIMOUS JURY
VERDICT TO CONVICT IN A FEDERAL CRIMINAL TRIAL. 

BUT IT IS THE FOURTEENTH AMENDMENT, RATHER THAN THE SIXTH, THAT
IMPOSES UPON THE STATES THE REQUIREMENT THAT THEY PROVIDE JURY TRIALS
TO THOSE ACCUSED OF SERIOUS CRIMES.  THIS COURT HAS SAID, IN CASES
DECIDED WHEN THE INTENDMENT OF THAT AMENDMENT WAS NOT AS CLOUDED BY THE
PASSAGE OF TIME, THAT DUE PROCESS DOES NOT REQUIRE THAT THE STATES
APPLY THE FEDERAL JURY-TRIAL RIGHT WITH ALL ITS GLOSS.  IN MAXWELL V.
DOW, 176 U.S.,AT 605, MR. JUSTICE PECKHAM, SPEAKING FOR EIGHT OF THE
NINE MEMBERS OF THE COURT, SO STATED: 

"(WHEN PROVIDING IN THEIR CONSTITUTION AND LEGISLATION FOR THE
MANNER IN WHICH CIVIL OR CRIMINAL ACTIONS SHALL BE TRIED, IT IS IN
ENTIRE CONFORMITY WITH THE CHARACTER OF THE FEDERAL GOVERNMENT THAT
(THE STATES) SHOULD HAVE THE RIGHT TO DECIDE FOR THEMSELVES WHAT SHALL
BE THE FORM AND CHARACTER OF THE PROCEDURE IN SUCH TRIALS, . . .
WHETHER THERE SHALL BE A JURY OF TWELVE OR A LESSER NUMBER, AND WHETHER
THE VERDICT MUST BE UNANIMOUS OR NOT.  . . . " AGAIN, IN JORDAN V.
MASSACHUSETTS, 225 U.S. 167, 176 (1912), THE COURT CONCLUDED THAT "(IN
CRIMINAL CASES DUE PROCESS OF LAW IS NOT DENIED BY A STATE LAW WHICH
DISPENSES WITH . . . THE NECESSITY OF A JURY OF TWELVE, OR UNANIMITY IN
THE VERDICT." 

IT IS TRUE, OF COURSE, THAT THE MAXWELL AND JORDAN COURTS WENT
FURTHER AND CONCLUDED THAT THE STATES MIGHT DISPENSE WITH JURY TRIAL
ALTOGETHER.  THAT CONCLUSION, GROUNDED ON A MORE LIMITED VIEW OF DUE
PROCESS THAN HAS BEEN ACCEPTED BY THIS COURT IN RECENT YEARS, /9/  WAS
REJECTED BY THE COURT IN DUNCAN.  BUT I FIND NOTHING IN THE
CONSTITUTIONAL PRINCIPLE UPON WHICH DUNCAN IS BASED, OR IN OTHER
PRECEDENTS, THAT REQUIRES REPUDIATION OF THE VIEWS EXPRESSED IN MAXWELL
AND JORDAN WITH RESPECT TO THE SIZE OF A JURY AND THE UNANIMITY OF ITS
VERDICT.  MR. JUSTICE FORTAS, CONCURRING IN DUNCAN, COMMENTED ON THE
DISTINCTION BETWEEN THE REQUIREMENTS OF THE SIXTH AMENDMENT AND THOSE
OF THE DUE PROCESS CLAUSE AND SUGGESTED THE APPROPRIATE FRAMEWORK FOR
ANALYSIS OF THE ISSUE IN THIS CASE. 

"I SEE NO REASON WHATEVER . . . TO ASSUME THAT OUR DECISION TODAY
SHOULD REQUIRE US TO IMPOSE FEDERAL REQUIREMENTS SUCH AS UNANIMOUS
VERDICTS OR A JURY OF 12 UPON THE STATES.  WE MAY WELL CONCLUDE THAT
THESE AND OTHER FEATURES OF FEDERAL JURY PRACTICE ARE BY NO MEANS
FUNDAMENTAL-- THAT THEY ARE NOT ESSENTIAL TO DUE PROCESS OF LAW-- AND
THAT THEY ARE NOT OBLIGATORY ON THE STATES."  DUNCAN V. LOUISIANA, 391
U.S.,AT 213. 

THE QUESTION, THEREFORE, THAT SHOULD BE ADDRESSED IN THIS CASE IS
WHETHER UNANIMITY IS IN FACT SO FUNDAMENTAL TO THE ESSENTIALS OF JURY
TRIAL THAT THIS PARTICULAR REQUIREMENT OF THE SIXTH AMENDMENT IS
NECESSARILY BINDING ON THE STATES UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  AN AFFIRMATIVE ANSWER, IGNORING THE STRONG VIEWS
PREVIOUSLY EXPRESSED TO THE CONTRARY BY THIS COURT IN MAXWELL AND
JORDAN, WOULD GIVE UNWARRANTED AND UNWISE SCOPE TO THE INCORPORATION
DOCTRINE AS IT APPLIES TO THE DUE PROCESS RIGHT OF STATE CRIMINAL
DEFENDANTS TO TRIAL BY JURY.     THE IMPORTANCE THAT OUR SYSTEM
ATTACHES TO TRIAL BY JURY DERIVES FROM THE SPECIAL CONFIDENCE WE REPOSE
IN A "BODY OF ONE'S PEERS TO DETERMINE GUILT OR INNOCENCE AS A
SAFEGUARD AGAINST ARBITRARY LAW ENFORCEMENT."  WILLIAMS V. FLORIDA, 399
U.S. 78, 87 (1970).  IT IS THIS SAFEGUARDING FUNCTION, PREFERRING THE
COMMONSENSE JUDGMENT OF A JURY AS A BULWARK "AGAINST THE CORRUPT OR
OVERZEALOUS PROSECUTOR AND AGAINST THE COMPLAINT, BIASED, OR ECCENTRIC
JUDGE,"  /10/  THAT LIES AT THE CORE OF OUR DEDICATION TO THE
PRINCIPLES OF JURY DETERMINATION OF GUILT OR INNOCENCE.  /11/  THIS IS
THE FUNDAMENTAL OF JURY TRIAL THAT BRINGS IT WITHIN THE MANDATE OF DUE
PROCESS.  IT SEEMS TO ME THAT THIS FUNDAMENTAL IS ADEQUATELY PRESERVED
BY THE JURY-VERDICT PROVISION OF THE OREGON CONSTITUTION.  THERE IS NO
REASON TO BELIEVE, ON THE BASIS OF EXPERIENCE IN OREGON OR ELSEWHERE,
THAT A UNANIMOUS DECISION OF 12 JURORS IS MORE LIKELY TO SERVE THE HIGH
PURPOSE OF JURY TRIAL, OR IS ENTITLED TO GREATER RESPECT IN THE
COMMUNITY, THAN THE SAME DECISION JOINED IN BY 10 MEMBERS OF A JURY OF
12.  THE STANDARD OF DUE PROCESS ASSURED BY THE OREGON CONSTITUTION
PROVIDES A SUFFICIENT GUARANTEE THAT THE GOVERNMENT WILL NOT BE
PERMITTED TO IMPOSE ITS JUDGMENT ON AN ACCUSED WITHOUT FIRST MEETING
THE FULL BURDEN OF ITS PROSECUTORIAL DUTY.  /12/ 

MOREOVER, IN HOLDING THAT THE FOURTEENTH AMENDMENT HAS INCORPORATED
"JOT-FOR-JOT AND CASE-FOR-CASE"  /13/  EVERY ELEMENT OF THE SIXTH
AMENDMENT, THE COURT DEROGATES PRINCIPLES OF FEDERALISM THAT ARE BASIC
TO OUR SYSTEM.  IN THE NAME OF UNIFORM APPLICATION OF HIGH STANDARDS OF
DUE PROCESS, THE COURT HAS EMBARKED UPON A COURSE OF CONSTITUTIONAL
INTERPRETATION THAT DEPRIVES THE STATES OF FREEDOM TO EXPERIMENT WITH
ADJUDICATORY PROCESSES DIFFERENT FROM THE FEDERAL MODEL.  AT THE SAME
TIME, THE COURT'S UNDERSTANDABLE UNWILLINGNESS TO IMPOSE REQUIREMENTS
THAT IT FINDS UNNECESSARILY RIGID (E.G., WILLIAMS V. FLORIDA, 399 U.S.
78), HAS CULMINATED IN THE DILUTION OF FEDERAL RIGHTS THAT WERE, UNTIL
THESE DECISIONS, NEVER SERIOUSLY QUESTIONED.  THE DOUBLY UNDESIRABLE
CONSEQUENCE OF THIS REASONING PROCESS, LABELED BY MR. JUSTICE HARLAN AS
"CONSTITUTIONAL SCHIZOPHRENIA," ID., AT 136, MAY WELL BE DETRIMENTAL
BOTH TO THE STATE AND FEDERAL CRIMINAL JUSTICE SYSTEMS.  ALTHOUGH IT IS
PERHAPS LATE IN THE DAY FOR AN EXPRESSION OF MY VIEWS, I WOULD HAVE
BEEN IN ACCORD WITH THE OPINIONS IN SIMILAR CASES, BY THE CHIEF JUSTICE
AND JUSTICES HARLAN, STEWARD, AND FORTAS /14/  THAT, AT LEAST IN
DEFINING THE ELEMENTS OF THE RIGHT TO JURY TRIAL, THERE IS NO SOUND
BASIS FOR INTERPRETING THE FOURTEENTH AMENDMENT TO REQUIRE BLIND
ADHERENCE BY THE STATES TO ALL DETAILS OF THE FEDERAL SIXTH AMENDMENT
STANDARDS.  /15/ 

WHILE THE CIVIL WAR AMENDMENTS ALTERED SUBSTANTIALLY THE BALANCE OF
FEDERALISM, IT STRAINS CREDULITY TO BELIEVE THAT THEY WERE INTENDED TO
DEPRIVE THE STATES OF ALL FREEDOM TO EXPERIMENT WITH VARIATIONS IN JURY
TRIAL PROCEDURE.  IN AN AGE IN WHICH EMPIRICAL STUDY IS INCREASINGLY
RELIED UPON AS A FOUNDATION FOR DECISION MAKING, ONE OF THE MORE
OBVIOUS MERITS OF OUR FEDERAL SYSTEM IS THE OPPORTUNITY IT AFFORDS EACH
STATE, IF ITS PEOPLE SO CHOOSE, TO BECOME A "LABORATORY" AND TO
EXPERIMENT WITH A RANGE OF TRIAL AND PROCEDURAL ALTERNATIVES.  ALTHOUGH
THE NEED FOR THE INNOVATIONS THAT GROW OUT OF DIVERSITY HAS ALWAYS BEEN
GREAT, IMAGINATION UNIMPEDED BY UNWARRANTED DEMANDS FOR NATIONAL
UNIFORMITY IS OF SPECIAL IMPORTANCE AT A TIME WHEN SERIOUS DOUBT EXISTS
AS TO THE ADEQUACY OF OUR CRIMINAL JUSTICE SYSTEM.  THE SAME DIVERSITY
OF LOCAL LEGISLATIVE RESPONSIVENESS THAT MARKED THE DEVELOPMENT OF
ECONOMIC AND SOCIAL REFORMS IN THIS COUNTRY, /16/  IF NOT BARRED BY AN
UNDULY RESTRICTIVE APPLICATION OF THE DUE PROCESS CLAUSE, MIGHT WELL
LEAD TO VALUABLE INNOVATIONS WITH RESPECT TO DETERMINING-- FAIRLY AND
MORE EXPEDITIOUSLY-- THE GUILT OR INNOCENCE OF THE ACCUSED. 

VIEWING THE UNANIMITY CONTROVERSY AS ONE REQUIRING A FRESH LOOK AT
THE QUESTION OF WHAT IS FUNDAMENTAL IN JURY TRIAL, I SEE NO
CONSTITUTIONAL INFIRMITY IN THE PROVISION ADOPTED BY THE PEOPLE OF
OREGON.  IT IS THE PRODUCE OF A CONSTITUTIONAL AMENDMENT, APPROVED BY A
VOTE OF THE PEOPLE IN THE STATE, AND APPEARS TO BE PATTERNED ON A
PROVISION OF THE AMERICAN LAW INSTITUTE'S CODE OF CRIMINAL PROCEDURE. 
/17/  A SIMILAR DECISION HAS BEEN ECHOED MORE RECENTLY IN ENGLAND WHERE
THE UNANIMITY REQUIREMENT WAS ABANDONED BY STATUTORY ENACTMENT.  /18/
LESS-THAN-UNANIMOUS VERDICT PROVISIONS ALSO HAVE BEEN VIEWED WITH
APPROVAL BY THE AMERICAN BAR ASSOCIATION'S CRIMINAL JUSTICE PROJECT. 
/19/  THOSE WHO HAVE STUDIED THE JURY MECHANISM AND RECOMMENDED
DEVIATION FROM THE HISTORIC RULE OF UNANIMITY HAVE FOUND A NUMBER OF
CONSIDERATIONS TO BE SIGNIFICANT.  REMOVAL OF THE UNANIMITY REQUIREMENT
COULD WELL MINIMIZE THE POTENTIAL FOR HUNG JURIES OCCASIONED EITHER BY
BRIBERY OR JUROR IRRATIONALITY.  FURTHERMORE, THE RULE THAT JURIES MUST
SPEAK WITH A SINGLE VOICE OFTEN LEADS, NOT TO FULL AGREEMENT AMONG THE
12 BUT TO AGREEMENT BY NONE AND COMPROMISE BY ALL, DESPITE THE FREQUENT
ABSENCE OF A RATIONAL BASIS FOR SUCH COMPROMISE.  /20/  QUITE APART
FROM WHETHER JUSTICES SITTING ON THIS COURT WOULD HAVE DEEMED ADVISABLE
THE ADOPTION OF ANY PARTICULAR LESS-THAN-UNANIMOUS JURY PROVISION, I
THINK THAT CONSIDERATIONS OF THIS KIND REFLECT A LEGITIMATE BASIS FOR
EXPERIMENTATION AND DEVIATION FROM THE FEDERAL BLUEPRINT.  /21/

        III 

PETITIONERS IN APODACA V. OREGON, IN ADDITION TO THEIR PRIMARY
CONTENTION THAT UNANIMITY IS A REQUIREMENT OF STATE JURY TRIALS BECAUSE
THE FOURTEENTH AMENDMENT "INCORPORATES" THE SIXTH, ALSO ASSERT THAT
OREGON'S CONSTITUTIONAL PROVISION OFFENDS THE FEDERAL CONSTITUTIONAL
GUARANTEE AGAINST THE SYSTEMATIC EXCLUSION OF ANY GROUP WITHIN THE
CITIZENRY FROM PARTICIPATING IN THE CRIMINAL TRIAL PROCESS.  WHILE THE
SYSTEMATIC EXCLUSION OF IDENTIFIABLE MINORITIES FROM JURY SERVICE HAS
LONG BEEN RECOGNIZED AS A VIOLATION OF THE EQUAL PROTECTION CLAUSE
(SEE, E.G., WHITUS V. GEORGIA, 385 U.S. 545 (1967); STRAUDER V. WEST
VIRGINIA, 100 U.S. 303 (1880), IN MORE RECENT YEARS THE COURT HAS HELD
THAT CRIMINAL DEFENDANTS ARE ENTITLED, AS A MATTER OF DUE PROCESS, TO A
JURY DRAWN FROM A REPRESENTATIVE CROSS SECTION OF THE COMMUNITY.  THIS
IS AN ESSENTIAL ELEMENT OF A FAIR AND IMPARTIAL JURY TRIAL.  SEE
WILLIAMS V. FLORIDA, 399 U.S.,AT 100; ALEXANDER V. LOUISIANA, 405 U.S.
625, 634 (1972) (DOUGLAS, J., CONCURRING).  PETITIONERS CONTEND THAT
LESS-THAN-UNANIMOUS JURY VERDICT PROVISIONS UNDERCUT THAT RIGHT BY
IMPLICITLY PERMITTING IN THE JURY ROOM THAT WHICH IS PROHIBITED IN THE
JURY VENIRE SELECTION PROCESS-- THE EXCLUSION OF MINORITY GROUP
VIEWPOINTS.  THEY ARGUE THAT UNLESS UNANIMITY IS REQUIRED EVEN OF A
PROPERLY DRAWN JURY, THE RESULT-- WHETHER CONVICTION OR ACQUITTAL-- MAY
BE THE UNJUST PRODUCT OF RACISM, BIGOTRY, OR AN EMOTIONALLY INFLAMED
TRIAL. 

SUCH FEARS MATERIALIZE ONLY WHEN THE JURY'S MAJORITY, RESPONDING TO
THESE EXTRANEOUS PRESSURE, IGNORES THE EVIDENCE AND THE INSTRUCTIONS OF
THE COURT AS WELL AS THE RATIONAL ARGUMENTS OF THE MINORITY.  THE RISK,
HOWEVER, THAT A JURY IN A PARTICULAR CASE WILL FAIL TO MEET ITS HIGH
RESPONSIBILITY IS INHERENT IN ANY SYSTEM THAT COMMITS DECISIONS OF
GUILT OR INNOCENCE TO UNTRAINED LAYMEN DRAWN AT RANDOM FROM THE
COMMUNITY.  IN PART, AT LEAST, THE MAJORITY-VERDICT RULE MUST RELY ON
THE SAME PRINCIPLE THAT UNDERLIES OUR HISTORIC DEDICATION TO JURY
TRIAL:  BOTH SYSTEMS ARE PREMISED ON THE CONVICTION THAT EACH JUROR
WILL FAITHFULLY PERFORM HIS ASSIGNED DUTY.  MR. JUSTICE DOUGLAS'
DISSENT TODAY APPEARS TO REST ON THE CONTRARY ASSUMPTION THAT THE
MEMBERS OF THE JURY CONSTITUTING THE MAJORITY HAVE NO DUTY TO CONSIDER
THE MINORITY'S VIEWPOINT IN THE COURSE OF DELIBERATION.  CHARACTERIZING
THE JURY'S CONSIDERATION OF MINORITY VIEWS AS MERE "POLITE AND ACADEMIC
CONVERSATION," OR "COURTESY DIALOGUE," HE CONCLUDES THAT A JURY IS
UNDER NO OBLIGATION IN OREGON TO DELIBERATE AT ALL IF 10 JURORS VOTE
TOGETHER AT THE OUTSET.  POST, AT 389.  NO SUCH POWER FREELY TO SHUT
OFF COMPETING VIEWS IS IMPLIED IN THE RECORD IN THIS CASE AND IT IS
CONTRARY TO BASIC PRINCIPLES OF JURY PARTICIPATION IN THE CRIMINAL
PROCESS.  WHILE THERE MAY BE, OF COURSE, REASONABLE DIFFERENCES OF
OPINION AS TO THE MERIT OF THE SPECULATIVE CONCERNS EXPRESSED BY THESE
PETITIONERS AND REFLECTED IN THE DISSENTING OPINION, I FIND NOTHING IN
OREGON'S EXPERIENCE TO JUSTIFY THE APPREHENSION THAT JURIES NOT BOUND
BY THE UNANIMITY RULE WILL BE MORE LIKELY TO IGNORE THEIR HISTORIC
RESPONSIBILITY. 

MOREOVER, THE STATES NEED NOT RELY ON THE PRESUMPTION OF REGULARITY
IN A VACUUM SINCE EACH HAS AT ITS DISPOSAL PROTECTIVE DEVICES TO
DIMINISH SIGNIFICANTLY THE PROSPECT OF JURY IRRESPONSIBILITY.  EVEN
BEFORE THE JURY IS SWORN, SUBSTANTIAL PROTECTION AGAINST THE SELECTION
OF A REPRESENTATIVE BUT WILFULLY IRRESPONSIBLE JURY IS ASSURED BY THE
WIDE AVAILABILITY OF PEREMPTORY CHALLENGES AND CHALLENGES FOR CAUSE. 
/22/  THE LIKELIHOOD OF MISCARRIAGE OF JUSTICE IS FURTHER DIMINISHED BY
THE JUDGE'S USE OF FULL JURY INSTRUCTIONS, DETAILING THE APPLICABLE
BURDENS OF PROOF, INFORMING THE JURORS OF THEIR DUTY TO WEIGH THE VIEWS
OF FELLOW JURORS, /23/  AND REMINDING THEM OF THE SOLEMN RESPONSIBILITY
IMPOSED BY THEIR OATHS.  TRIAL JUDGES ALSO RETAIN THE POWER TO DIRECT
ACQUITTALS IN CASES IN WHICH THE EVIDENCE OF GUILT IS LACKING, OR TO
SET ASIDE VERDICTS ONCE RENDERED WHEN THE EVIDENCE IS INSUFFICIENT TO
SUPPORT A CONVICTION.  FURTHERMORE, IN CASES IN WHICH PUBLIC EMOTION
RUNS HIGH OR PRETRIAL PUBLICITY THREATENS A FAIR TRIAL, JUDGES POSSESS
BROAD POWER TO GRANT CHANGES OF VENUE, /24/  AND TO IMPOSE RESTRICTIONS
ON THE EXTENT OF PRESS COVERAGE.  /25/ 

IN LIGHT OF SUCH PROTECTIONS IT IS UNLIKELY THAT THE OREGON "TEN-OF
TWELVE" RULE WILL ACCOUNT FOR AN INCREASE IN THE NUMBER OF CASES IN
WHICH INJUSTICE WILL BE OCCASIONED BY A BIASED OR PREJUDICED JURY.  IT
MAY BE WISE TO RECALL MR. JUSTICE WHITE'S ADMONITION IN MURPHY V.
WATERFRONT COMM'N, 378 U.S. 52, 102 (1964), THAT THE CONSTITUTION
"PROTECTS AGAINST REAL DANGERS, NOT REMOTE AND SPECULATIVE
POSSIBILITIES."  SINCE I DO NOT VIEW OREGON'S LESS-THAN-UNANIMOUS JURY
VERDICT REQUIREMENT AS VIOLATIVE OF THE DUE PROCESS GUARANTEE OF THE
FOURTEENTH AMENDMENT, I CONCUR IN THE COURT'S AFFIRMANCE OF THESE
CONVICTIONS. 

/1/  THAT RIGHT, OF COURSE, IS RESERVED FOR THOSE CRIMES THAT MAY BE
DEEMED "SERIOUS."  SEE ID., AT 159-162; BLOOM V. ILLINOIS, 391 U.S. 194
(1968); BALDWIN V. NEW YORK, 399 U.S. 66 (1970). 

/2/  THIS CONTENTION WAS RAISED IN CARCERANO V. GLADDEN, WHICH WAS
CONSOLIDATED AND DISPOSED OF ALONG WITH THE DESTEFANO OPINION. 

/3/  IN ADDITION TO THE JURY TRIAL ISSUES IN THIS CASE, I ALSO JOIN
PART IV OF THE COURT'S OPINION INSOFAR AS IT CONCLUDES THAT THE LINEUP
IDENTIFICATION WAS NOT THE FRUIT OF THE PRIOR WARRANTLESS ARREST.  WONG
SUN V. UNITED STATES, 371 U.S. 471 (1963).  UNDER THE CIRCUMSTANCES OF
THIS CASE, I FIND IT UNNECESSARY TO REACH THE QUESTION WHETHER
APPELLANT'S WARRANTLESS ARREST WAS CONSTITUTIONALLY INVALID. 

/4/  JURY TRIAL IN FEDERAL CASES IS ALSO ASSURED BY ART. III, SEC.
2, OF THE CONSTITUTION:  "THE TRIAL OF ALL CRIMES . . . SHALL BE BY
JURY." 

/5/  SEE ALSO MR. JUSTICE WHITE'S OPINION FOR THE COURT IN SWAIN V.
ALABAMA, 380 U.S. 202, 211 (1965), STATING, IN DICTUM, THAT "ALABAMA
ADHERES TO THE COMMON-LAW SYSTEM OF TRIAL BY AN IMPARTIAL JURY OF 12
MEN WHO MUST UNANIMOUSLY AGREE ON A VERDICT, THE SYSTEM FOLLOWED IN THE
FEDERAL COURTS BY VIRTUE OF THE SIXTH AMENDMENT." 

THE SAME RESULT HAS BEEN ATTAINED WITH RESPECT TO THE RIGHT TO JURY
TRIAL IN CIVIL CASES UNDER THE SEVENTH AMENDMENT.  SEE AMERICAN
PUBLISHING CO. V. FISHER, 166 U.S. 464, 467-468 (1897); SPRINGVILLE V.
THOMAS, 166 U.S. 707 (1897). 

/6/  THE PROCESS OF DETERMINING THE CONTENT OF THE SIXTH AMENDMENT
RIGHT TO JURY TRIAL HAS LONG BEEN ONE OF CAREFUL EVALUATION OF, AND
STRICT ADHERENCE TO THE LIMITATIONS ON, THAT RIGHT AS IT WAS KNOWN IN
CRIMINAL TRIALS AT COMMON LAW.  SEE WILLIAMS V. FLORIDA, 399 U.S. 78,
117, 122-129 (1970) (SEPARATE OPINION OF HARLAN, J.). 

A RECENT EXAMPLE OF THAT PROCESS OF CONSTITUTIONAL ADJUDICATION MAY
BE FOUND IN PART II OF THE COURT'S OPINION IN DUNCAN V. LOUISIANA, 391
U.S.,AT 159-162, IN WHICH "PETTY" OFFENSES WERE EXCLUDED FROM THE RULE
REQUIRING JURY TRIAL BECAUSE SUCH "OFFENSES WERE TRIED WITHOUT JURIES
BOTH IN ENGLAND AND IN THE COLONIES."  THE COURT FOUND "NO SUBSTANTIAL
EVIDENCE THAT THE FRAMERS INTENDED TO DEPART FROM THIS ESTABLISHED
COMMON-LAW PRACTICE."  ID., AT 160.  TO THE SAME EFFECT, SEE MR.
JUSTICE HARLAN'S DISSENT IN BALDWIN V. NEW YORK (APPEARING IN WILLIAMS
V. FLORIDA, 399 U.S.,AT 119-121). 

ALSO REPRESENTATIVE OF THIS HISTORICAL APPROACH TO THE SIXTH
AMENDMENT ARE THE EXHAUSTIVE MAJORITY AND DISSENTING OPINIONS IN SPARF
V. UNITED STATES, 156 U.S. 51 (1895), IN WHICH THE COURT ULTIMATELY
CONCLUDED THAT FEDERAL CRIMINAL JURIES WERE EMPOWERED ONLY TO DECIDE
QUESTIONS OF "FACT."  RATHER THAN ATTEMPTING TO DETERMINE WHETHER THE
FACT-LAW DISTINCTION WAS DESIRABLE OR WHETHER IT MIGHT BE ESSENTIAL TO
THE FUNCTION PERFORMED BY JURIES, THE DECISION WAS PREMISED ON THE
CONCLUSION THAT ENGLISH AND COLONIAL JURIES HAD NO RIGHT TO DECIDE
QUESTIONS OF LAW. 

THE SAME HISTORICAL APPROACH ACCOUNTS FOR THE NUMEROUS SUPREME COURT
OPINIONS (SEE TEXT ACCOMPANYING N. 5), FINDING UNANIMITY TO BE ONE OF
THE ATTRIBUTES SUBSUMED UNDER THE TERM "JURY TRIAL."  NO REASON, OTHER
THAN THE CONFERENCE COMMITTEE'S REVISION OF THE HOUSE DRAFT OF THE
SIXTH AMENDMENT, HAS BEEN OFFERED TO JUSTIFY DEPARTURE FROM THIS
COURT'S PRIOR PRECEDENTS.  THE ADMITTED AMBIGUITY OF THAT PIECE OF
LEGISLATIVE HISTORY IS NOT SUFFICIENT, IN MY VIEW, TO OVERRIDE THE
UNAMBIGUOUS HISTORY OF THE COMMON-LAW RIGHT.  WILLIAMS V. FLORIDA, 399
U.S.,AT 123 N. 9.     /7/  SEE, E.G., R. PERRY, SOURCES OF OUR
LIBERTIES 270, 281-282, 288, 429 (1959); 3 J.STORY, COMMENTARIES ON THE
CONSTITUTION 652-653 (1ST ED. 1833). 

/8/  SEE, E.G., 4 W.BLACKSTONE, COMMENTARIES *376; W. FORSYTH,
HISTORY OF TRIAL BY JURY 238-258 (1852); M. HALE, ANALYSIS OF THE LAW
OF ENGLAND 119 (1716).     /9/  I AGREE WITH MR. JUSTICE WHITE'S
ANALYSIS IN DUNCAN THAT THE DEPARTURE FROM EARLIER DECISIONS WAS, IN
LARGE MEASURE, A PRODUCT OF A CHANGE IN FOCUS IN THE COURT'S APPROACH
TO DUE PROCESS.  NO LONGER ARE QUESTIONS REGARDING THE
CONSTITUTIONALITY OF PARTICULAR CRIMINAL PROCEDURES RESOLVED BY
FOCUSING ALONE ON THE ELEMENT IN QUESTION AND ASCERTAINING WHETHER A
SYSTEM OF CRIMINAL JUSTICE MIGHT BE IMAGINED IN WHICH A FAIR TRIAL
COULD BE AFFORDED IN THE ABSENCE OF THAT PARTICULAR ELEMENT.  RATHER,
THE FOCUS IS, AS IT SHOULD BE, ON THE FUNDAMENTALITY OF THAT ELEMENT
VIEWED IN THE CONTEXT OF THE BASIC ANGLO-AMERICAN JURISPRUDENTIAL
SYSTEM COMMON TO THE STATES.  DUNCAN V. LOUISIANA, SUPRA, AT 149-150,
N. 14.  THAT APPROACH TO DUE PROCESS READILY ACCOUNTS BOTH FOR THE
CONCLUSION THAT JURY TRIAL IS FUNDAMENTAL AND THAT UNANIMITY IS NOT. 
SEE PART III, INFRA. 

/10/  DUNCAN V. LOUISIANA, 391 U.S.,AT 156.  SEE ALSO BALDWIN V. NEW
YORK, 399 U.S.,AT 72. 

/11/  INDEED, SO STRONGLY FELT WAS THE JURY'S ROLE AS THE PROTECTOR
OF "INNOCENCE AGAINST THE CONSEQUENCES OF THE PARTIALITY AND UNDUE BIAS
OF JUDGES IN FAVOR OF THE PROSECUTION," THAT, AT AN EARLIER POINT IN
THIS COUNTRY'S HISTORY, SOME OF THE STATES DEEMED JURIES THE FINAL
ARBITERS OF ALL QUESTIONS ARISING IN CRIMINAL PROSECUTIONS, WHETHER
FACTUAL OR LEGAL.  TO ALLOW JUDGES TO DETERMINE THE LAW WAS CONSIDERED
BY SOME STATES TO POSE TOO GREAT A RISK OF JUDICIAL OPPRESSION,
FAVORING THE STATE ABOVE THE ACCUSED.  SEE, E.G., STATE V. CROTEAU, 23
VT. 14, 21 (1849); HOWE, JURIES AS JUDGES OF CRIMINAL LAW, 52
HARV.L.REV.  582 (1939).  THAT HISTORICAL PREFERENCE FOR JURY
DECISIONMAKING IS STILL REFLECTED IN THE CRIMINAL PROCEDURES OF TWO
STATES.  IND. CONST., ART. I, SEC. 19; MD. CONST., ART. XV, SEC. 5. 
SEE BRADY V. MARYLAND, 373 U.S. 83 (1963; WYLEY V. WARDEN, 372 F.2D
742, 746 (CA 4), CERT. DENIED, 389 U.S. 863 (1967); BEAVERS V. STATE,
236 IND. 549, 141 N.E.2D 118 (1957). 

/12/  THE AVAILABLE EMPIRICAL RESEARCH INDICATES THAT THE JURY-TRIAL
PROTECTION IS NOT SUBSTANTIALLY AFFECTED BY LESS-THAN-UNANIMOUS VERDICT
REQUIREMENTS.  H. KALVEN AND H. ZEISEL, IN THEIR FREQUENTLY CITED STUDY
OF AMERICAN JURIES (THE AMERICAN JURY (PHOENIX ED. 1971)), NOTE THAT
WHERE UNANIMITY IS DEMANDED 5.6% OF THE CASES RESULT IN HUNG JURIES. 
ID., AT 461.  WHERE UNANIMITY IS NOT REQUIRED, AVAILABLE STATISTICS
INDICATE THAT JURIES WILL STILL BE HUNG IN OVER 3% OF THE CASES.  THUS,
IT MAY BE ESTIMATED ROUGHLY THAT OREGON'S PRACTICE MAY RESULT IN
VERDICTS IN SOME 2.5% MORE OF THE CASES-- CASES IN WHICH NO VERDICT
WOULD BE RETURNED IF UNANIMITY WERE DEMANDED.  GIVEN THE LARGE NUMBER
OF CAUSES TO WHICH THIS PERCENTAGE DISPARITY MIGHT BE ATTRIBUTED, AND
GIVEN THE POSSIBILITY OF CONVICTION ON RETRIAL, IT IS IMPOSSIBLE TO
CONCLUDE THAT THIS PERCENTAGE REPRESENTS CONVICTIONS OBTAINED UNDER
STANDARDS OFFENSIVE TO DUE PROCESS. 

/13/  DUNCAN V. LOUISIANA, SUPRA, AT 181 (HARLAN, J., DISSENTING). 

/14/  ID., AT 173-183 (HARLAN, J., DISSENTING); BLOOM V. ILLINOIS,
391 U.S.,AT 211 (FORTAS, J., CONCURRING); BALDWIN V. NEW YORK, 399
U.S.,AT 76-77 (BURGER, C.J., DISSENTING); WILLIAMS V. FLORIDA, 399
U.S.,AT 117, 143 (SEPARATE OPINIONS OF HARLAN, J., AND STEWART, J.). 
CF. MR. JUSTICE DOUGLAS' CONCURRING OPINION IN ALEXANDER V. LOUISIANA,
405 U.S. 625, 637 N. 5 (1972). 

/15/  MY UNWILLINGNESS TO ACCEPT THE "INCORPORATIONIST" NOTION THAT
JURY TRIAL MUST BE APPLIED WITH TOTAL UNIFORMITY DOES NOT REQUIRE THAT
I TAKE ISSUE WITH EVERY PRECEDENT OF THIS COURT APPLYING VARIOUS
CRIMINAL PROCEDURAL RIGHTS TO THE STATES WITH THE SAME FORCE THAT THEY
ARE APPLIED IN FEDERAL COURTS.  SEE MR. JUSTICE FORTAS' OPINION IN
BLOOM V. ILLINOIS, 391 U.S.,AT 214, WHICH ALSO APPLIED TO DUNCAN. 

/16/  SEE MR. JUSTICE BRANDEIS' OFT-QUOTED DISSENT IN NEW STATE ICE
CO. V. LIEBMANN, 285 U.S. 262, 280, 309-311 (1932), IN WHICH HE DETAILS
THE STULTIFYING POTENTIAL OF THE SUBSTANTIVE DUE PROCESS DOCTRINE. 

/17/  ALI, CODE OF CRIMINAL PROCEDURE SEC. 335 (1930). 

/18/  CRIMINAL JUSTICE ACT 1967, C. 80, SEC. 13 (GREAT BRITAIN). 

/19/  AMERICAN BAR ASSOCIATION, PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, TRIAL BY JURY SEC. 1.1 (APPROVED DRAFT 1968) (SEE ALSO
COMMENTARY, AT 25-28). 

/20/  SEE, E.G., KALVEN & ZEISEL, THE AMERICAN JURY:  NOTES FOR AN
ENGLISH CONTROVERSY, 48 CHI.B.REC.  195 (1967); SAMUELS, CRIMINAL
JUSTICE ACT, 31 MOD.L.REV.  16, 25-17 (1968); COMMENT, WAIVER OF JURY
UNANIMITY-- SOME DOUBTS ABOUT REASONABLY DOUBT, 21 U.CHI.L.REV.  438,
444-445 (1954); COMMENT, SHOULD JURY VERDICTS BE UNANIMOUS IN CRIMINAL
CASES?, 47 ORE.L.REV.  417 (1968). 

/21/  SEE STATE V. GANN, 254 ORE.  549, 463 P.2D 570 (1969). 

APPROVAL OF OREGON'S 10-2 REQUIREMENT DOES NOT COMPEL ACCEPTANCE OF
ALL OTHER MAJORITY-VERDICT ALTERNATIVES.  DUE PROCESS AND ITS MANDATE
OF BASIC FAIRNESS OFTEN REQUIRE THE DRAWING OF DIFFICULT LINES.  SEE
FRANCIS V. RESWEBER, 329 U.S. 459, 466, 471 (1947) (FRANKFURTER, J.,
CONCURRING).  FULL RECOGNITION OF THE FUNCTION PERFORMED BY JURY
TRIALS, COUPLED WITH DUE RESPECT FOR THE PRESUMPTIVE VALIDITY OF STATE
LAWS BASED ON RATIONAL CONSIDERATIONS SUCH AS THOSE MENTIONED ABOVE,
WILL ASSIST IN FINDING THE REQUIRED BALANCE WHEN THE QUESTION IS
PRESENTED IN A DIFFERENT CONTEXT. 

/22/  SEE, E.G., SWAIN V. ALABAMA, 380 U.S. 202, 209-222 (1965). 

/23/  ALLEN V. UNITED STATES, 164 U.S. 492 (1896). 

/24/  SEE, E.G., IRVIN V. DOWD, 366 U.S. 717 (1961). 

/25/  SEE, E.G., SHEPPARD V. MAXWELL, 384 U.S. 333 (1966); ESTES V.
TEXAS, 381 U.S. 532 (1965). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING.  /0/ 

APPELLANT IN THE LOUISIANA CASE AND PETITIONERS IN THE OREGON CASE
WERE CONVICTED BY JURIES THAT WERE LESS THAN UNANIMOUS.  THIS PROCEDURE
IS AUTHORIZED BY BOTH THE LOUISIANA AND OREGON CONSTITUTIONS.  THEIR
CLAIM, REJECTED BY THE MAJORITY, IS THAT THIS PROCEDURE IS A VIOLATION
OF THEIR FEDERAL CONSTITUTIONAL RIGHTS.  WITH DUE RESPECT TO THE
MAJORITY, I DISSENT FROM THIS RADICAL DEPARTURE FROM AMERICAN
TRADITIONS. 

        I 

THE CONSTITUTION DOES NOT MENTION UNANIMOUS JURIES.  NEITHER DOES IT
MENTION THE PRESUMPTION OF INNOCENCE, NOR DOES IT SAY THAT GUILT MUST
BE PROVED BEYOND A REASONABLE DOUBT IN ALL CRIMINAL CASES.  YET IT IS
ALMOST INCONCEIVABLE THAT ANYONE WOULD HAVE QUESTIONED WHETHER PROOF
BEYOND A REASONABLY DOUBT WAS IN FACT THE CONSTITUTIONAL STANDARD. 
AND, INDEED, WHEN SUCH A CASE FINALLY AROSE WE HAD LITTLE DIFFICULTY
DISPOSING OF THE ISSUE.  IN RE WINSHIP, 397 U.S. 358, 364. 

THE COURT, SPEAKING THROUGH MR. JUSTICE BRENNAN, STATED THAT: 

"(THE USE OF THE REASONABLE-DOUBT STANDARD IS INDISPENSABLE TO
COMMAND THE RESPECT AND CONFIDENCE OF THE COMMUNITY IN APPLICATIONS OF
THE CRIMINAL LAW.  IT IS CRITICAL THAT THE MORAL FORCE OF THE CRIMINAL
LAW NOT BE DILUTED BY A STANDARD OF PROOF THAT LEAVES PEOPLE IN DOUBT
WHETHER INNOCENT MEN ARE BEING CONDEMNED.  IT IS ALSO IMPORTANT IN OUR
FREE SOCIETY THAT EVERY INDIVIDUAL GOING ABOUT HIS ORDINARY AFFAIRS
HAVE CONFIDENCE THAT HIS GOVERNMENT CANNOT ADJUDGE HIM GUILTY OF A
CRIMINAL OFFENSE WITHOUT CONVINCING A PROPER FACTFINDER OF HIS GUILT
WITH UTMOST CERTAINTY. 

     "LEST THERE REMAIN ANY DOUBT ABOUT THE CONSTITUTIONAL STATURE

  OF THE REASONABLE-DOUBT STANDARD, WE EXPLICITLY HOLD THAT THE DUE

  PROCESS CLAUSE PROTECTS THE ACCUSED AGAINST CONVICTION EXCEPT

  UPON PROOF BEYOND A REASONABLY DOUBT OF EVERY FACT NECESSARY TO

  CONSTITUTE THE CRIME WITH WHICH HE IS CHARGED."  IBID. 

I HAD SIMILARLY ASSUMED THAT THERE WAS NO DISPUTE THAT THE FEDERAL
CONSTITUTION REQUIRED A UNANIMOUS JURY IN ALL CRIMINAL CASES.  AFTER
ALL, IT HAS LONG BEEN EXPLICIT CONSTITUTIONAL DOCTRINE THAT THE SEVENTH
AMENDMENT CIVIL JURY MUST BE UNANIMOUS.  SEE AMERICAN PUBLISHING CO. V.
FISHER, 166 U.S. 464, WHERE THE COURT SAID THAT "UNANIMITY WAS ONE OF
THE PECULIAR AND ESSENTIAL FEATURES OF TRIAL BY JURY AT THE COMMON
LAW.  NO AUTHORITIES ARE NEEDED TO SUSTAIN THIS PROPOSITION."  ID., AT
468.  LIKE PROOF BEYOND A REASONABLY DOUBT, THE ISSUE OF UNANIMOUS
JURIES IN CRIMINAL CASES SIMPLY NEVER AROSE.  YET IN CASES DEALING WITH
JURIES IT HAD ALWAYS BEEN ASSUMED THAT A UNANIMOUS JURY WAS REQUIRED. 
/1/  SEE MAXWELL V. DOW, 176 U.S. 581, 586; PATTON V. UNITED STATES,
281 U.S. 276, 288; ANDRES V. UNITED STATES, 333 U.S. 740, 748.  TODAY
THE BASES OF THOSE CASES ARE DISCARDED AND TWO CENTURIES OF AMERICAN
HISTORY ARE SHUNTED ASIDE.  /2/ 

THE RESULT OF TODAY'S DECISIONS IS ANOMALOUS:  THOUGH UNANIMOUS JURY
DECISIONS ARE NOT REQUIRED IN STATE TRIALS, THEY ARE CONSTITUTIONALLY
REQUIRED IN FEDERAL PROSECUTIONS.  HOW CAN THAT BE POSSIBLE WHEN BOTH
DECISIONS STEM FROM THE SIXTH AMENDMENT? 

WE HELD UNANIMOUSLY IN 1948 THAT THE BILL OF RIGHTS REQUIRES A
UNANIMOUS JURY VERDICT: 

     "UNANIMITY IN JURY VERDICTS IS REQUIRED WHERE THE SIXTH AND

  SEVENTH AMENDMENTS APPLY.  IN CRIMINAL CASES THIS REQUIREMENT OF

  UNANIMITY EXTENDS TO ALL ISSUES-- CHARACTER OR DEGREE OF THE

  CRIME, GUILT AND PUNISHMENT-- WHICH ARE LEFT TO THE JURY.  A

  VERDICT EMBODIES IN A SINGLE FINDING THE CONCLUSIONS BY THE JURY

  UPON ALL THE QUESTIONS SUBMITTED TO IT."  ANDRES V. UNITED

STATES,

  333 U.S.,AT 748. 

AFTER TODAY'S DECISIONS, A MAN'S PROPERTY MAY ONLY BE TAKEN AWAY BY
A UNANIMOUS JURY VOTE, YET HE CAN BE STRIPPED OF HIS LIBERTY BY A
LESSER STANDARD.  HOW CAN THAT RESULT BE SQUARED WITH THE LAW OF THE
LAND AS EXPRESSED IN THE SETTLED AND TRADITIONAL REQUIREMENTS OF
PROCEDURAL DUE PROCESS? 

RULE 31(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE STATES, "THE
VERDICT SHALL BE UNANIMOUS."  THAT RULE WAS MADE BY THIS COURT WITH THE
CONCURRENCE OF CONGRESS PURSUANT TO 18 U.S.C. 3771.  AFTER TODAY A
UNANIMOUS VERDICT WILL BE REQUIRED IN A FEDERAL PROSECUTION BUT NOT IN
A STATE PROSECUTION.  YET THE SOURCE OF THE RIGHT IN EACH CASE IS THE
SIXTH AMENDMENT.  I FAIL TO SEE HOW WITH REASON WE CAN MAINTAIN THOSE
INCONSISTENT DUAL POSITIONS. 

THERE HAVE, OF COURSE, BEEN ADVOCATES OF THE VIEW THAT THE DUTIES
IMPOSED ON THE STATES BY REASON OF THE BILL OF RIGHTS OPERATING THROUGH
THE FOURTEENTH AMENDMENT ARE A WATERED-DOWN VERSION OF THOSE
GUARANTEES.  BUT WE HELD TO THE CONTRARY IN MALLOY V. HOGAN, 378 U.S.
1, 10-11: 

"WE HAVE HELD THAT THE GUARANTEES OF THE FIRST AMENDMENT, GITLOW V.
NEW YORK, SUPRA; CANTWELL V. CONNECTICUT, 310 U.S. 296; LOUISIANA EX
REL. GREMILLION V. NAACP, 336 U.S. 293, THE PROHIBITION OF UNREASONABLE
SEARCHES AND SEIZURES OF THE FOURTH AMENDMENT, KER V. CALIFORNIA, 374
U.S. 23, AND THE RIGHT TO COUNSEL GUARANTEED BY THE SIXTH AMENDMENT,
GIDEON V. WAINWRIGHT, SUPRA, ARE ALL TO BE ENFORCED AGAINST THE STATES
UNDER THE FOURTEENTH AMENDMENT ACCORDING TO THE SAME STANDARDS THAT
PROTECT THOSE PERSONAL RIGHTS AGAINST FEDERAL ENCROACHMENT.  IN THE
COERCED CONFESSION CASES, INVOLVING THE POLICIES OF THE PRIVILEGE
ITSELF, THERE HAS BEEN NO SUGGESTION THAT A CONFESSION MIGHT BE
CONSIDERED COERCED IF USED IN A FEDERAL BUT NOT A STATE TRIBUNAL.  THE
COURT THUS HAS REJECTED THE NOTION THAT THE FOURTEENTH AMENDMENT
APPLIES TO THE STATES ONLY A 'WATERED-DOWN, SUBJECTIVE VERSION OF THE
INDIVIDUAL GUARANTEES OF THE BILL OF RIGHTS.'" 

MALLOY, OF COURSE, NOT ONLY APPLIED THE SELF-INCRIMINATION CLAUSE TO
THE STATES BUT ALSO STANDS FOR THE PROPOSITION, AS MENTIONED, THAT "THE
SAME STANDARDS MUST DETERMINE WHETHER AN ACCUSED'S SILENCE IN EITHER A
FEDERAL OR STATE PROCEEDING IS JUSTIFIED."  ID., AT 11.  SEE ALSO
MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 79.  THE EQUATION OF FEDERAL
AND STATE STANDARDS FOR THE SELF-INCRIMINATION CLAUSE WAS EXPRESSLY
REAFFIRMED IN GRIFFIN V. CALIFORNIA, 380 U.S. 609, 615; AND IN MIRANDA
V. ARIZONA, 384 U.S. 436, 464. 

SIMILARLY, WHEN THE CONFRONTATION CLAUSE WAS FINALLY MADE OBLIGATORY
ON THE STATES, MR. JUSTICE BLACK FOR THE MAJORITY WAS CAREFUL TO
OBSERVE THAT ITS GUARANTEE, "LIKE THE RIGHT AGAINST COMPELLED SELF
INCRIMINATION, IS 'TO BE ENFORCED AGAINST THE STATES UNDER THE
FOURTEENTH AMENDMENT ACCORDING TO THE SAME STANDARDS THAT PROTECT THOSE
PERSONAL RIGHTS AGAINST FEDERAL ENCROACHMENT."  POINTER V. TEXAS, 380
U.S. 400, 406.  CF. DUTTON V. EVANS, 400 U.S. 74, 81. 

LIKEWISE, WHEN WE APPLIED THE DOUBLE JEOPARDY CLAUSE AGAINST THE
STATES MR. JUSTICE MARSHALL WROTE FOR THE COURT THAT "(ONCE IT IS
DECIDED THAT A PARTICULAR BILL OF RIGHTS GUARANTEE IS 'FUNDAMENTAL TO
THE AMERICAN SCHEME OF JUSTICE,' DUNCAN V. LOUISIANA . . . THE SAME
CONSTITUTIONAL STANDARDS APPLY AGAINST BOTH THE STATE AND FEDERAL
GOVERNMENTS."  BENTON V. MARYLAND, 395 U.S. 784, 795.  AND, THE
DOCTRINE OF COEXTENSIVE COVERAGE WAS FOLLOWED IN HOLDING THE SPEEDY
TRIAL CLAUSE APPLICABLE TO THE STATES.  KLOPFER V. NORTH CAROLINA, 386
U.S. 213, 222. 

AND, IN DUNCAN V. LOUISIANA, 391 U.S. 145, 158 N. 30, IN HOLDING THE
JURY TRIAL GUARANTEE BINDING IN STATE TRIALS, WE NOTED THAT ITS
PROHIBITIONS WERE TO BE IDENTICAL AGAINST BOTH THE FEDERAL AND STATE
GOVERNMENTS.  SEE ALSO ID., AT 213 (FORTAS, J., CONCURRING). 

ONLY ONCE HAS THIS COURT DIVERGED FROM THE DOCTRINE OF COEXTENSIVE
COVERAGE OF GUARANTEES BROUGHT WITHIN THE FOURTEENTH AMENDMENT, AND
THAT ABERRATION WAS LATER RECTIFIED.  IN WOLF V. COLORADO, 338 U.S. 25,
IT WAS HELD THAT THE FOURTH AMENDMENT BAN AGAINST UNREASONABLY AND
WARRANTLESS SEARCHES WAS ENFORCEABLE AGAINST THE STATES BUT THE COURT
DECLINED TO INCORPORATE THE FOURTH AMENDMENT EXCLUSIONARY RULE OF WEEKS
V. UNITED STATES, 232 U.S. 383.  HAPPILY, HOWEVER, THAT GAP WAS
PARTIALLY CLOSED IN ELKINS V. UNITED STATES, 364 U.S. 206, AND THEN
COMPLETELY BRIDGED IN MAPP V. OHIO, 367 U.S. 643.  IN MAPP WE OBSERVED
THAT "(THIS COURT HAS NOT HESITATED TO ENFORCE AS STRICTLY AGAINST THE
STATES AS IT DOES AGAINST THE FEDERAL GOVERNMENT THE RIGHTS OF FREE
SPEECH AND OF A FREE PRESS, THE RIGHTS TO NOTICE AND TO A FAIR, PUBLIC
TRIAL.  . . . " WE CONCLUDED THAT "THE SAME RULE" SHOULD APPLY WHERE
THE FOURTH AMENDMENT WAS CONCERNED.  ID., AT 656.  AND, LATER, WE MADE
CLEAR THAT "THE STANDARD FOR OBTAINING A SEARCH WARRANT IS . . . 'THE
SAME UNDER THE FOURTH AND FOURTEENTH AMENDMENTS,'" AGUILAR V. TEXAS,
378 U.S. 108, 110; AND THAT THE "STANDARD OF REASONABLENESS IS THE SAME
UNDER THE FOURTH AND FOURTEENTH AMENDMENTS."  KER V. CALIFORNIA, 374
U.S. 23, 33. 

IT IS SAID, HOWEVER, THAT THE SIXTH AMENDMENT, AS APPLIED TO THE
STATES BY REASON OF THE FOURTEENTH, DOES NOT MEAN WHAT IT DOES IN
FEDERAL PROCEEDINGS, THAT IT HAS A "DUE PROCESS" GLOSS ON IT, AND THAT
THAT GLOSS GIVES THE STATES POWER TO EXPERIMENT WITH THE EXPLICIT OR
IMPLIED GUARANTEES IN THE BILL OF RIGHTS. 

MR. JUSTICE HOLMES, DISSENTING IN TRUAX V. CORRIGAN, 257 U.S. 312,
344, AND MR. JUSTICE BRANDEIS, DISSENTING IN NEW STATE ICE CO. V.
LIEBMANN, 285 U.S. 262, 311, THOUGHT THAT THE STATES SHOULD BE ALLOWED
TO IMPROVISE REMEDIES FOR SOCIAL AND ECONOMIC ILLS.  BUT IN THAT AREA
THERE ARE NOT MANY "THOU SHALT NOTS" IN THE CONSTITUTION AND BILL OF
RIGHTS CONCERNING PROPERTY RIGHTS.  THE MOST CONSPICUOUS IS THE JUST
COMPENSATION CLAUSE OF THE FIFTH AMENDMENT.  IT HAS BEEN HELD
APPLICABLE WITH FULL VIGOR TO THE STATES BY REASON OF THE FOURTEENTH
AMENDMENT.  CHICAGO, B. & Q.R. CO. V. CHICAGO, 166 U.S. 226. 

DO TODAY'S DECISIONS MEAN THAT STATES MAY APPLY A "WATERED DOWN"
VERSION OF THE JUST COMPENSATION CLAUSE?  OR ARE TODAY'S DECISIONS
LIMITED TO A PARING DOWN OF CIVIL RIGHTS PROTECTED BY THE BILL OF
RIGHTS AND UP UNTIL NOW AS FULLY APPLICABLE TO THE STATES AS TO THE
FEDERAL GOVERNMENT? 

THESE CIVIL RIGHTS-- WHETHER THEY CONCERN SPEECH, SEARCHES AND
SEIZURES, SELF-INCRIMINATION, CRIMINAL PROSECUTIONS, BAIL, OR CRUEL AND
UNUSUAL PUNISHMENTS EXTEND, OF COURSE, TO EVERYONE, BUT IN COLD REALITY
TOUCH MOSTLY THE LOWER CASTES IN OUR SOCIETY.  I REFER, OF COURSE, TO
THE BLACKS, THE CHICANOS, THE ONE-MULE FARMERS, THE AGRICULTURAL
WORKERS, THE OFFBEAT STUDENTS, THE VICTIMS OF THE GHETTO.  ARE WE
GIVING THE STATES THE POWER TO EXPERIMENT IN DILUTING THEIR CIVIL
RIGHTS?  IT HAS LONG BEEN THOUGHT THAT THE "THOU SHALT NOTS" IN THE
CONSTITUTION AND BILL OF RIGHTS PROTECT EVERYONE AGAINST GOVERNMENTAL
INTRUSION OR OVERREACHING.  THE IDEA HAS BEEN OBNOXIOUS THAT THERE ARE
SOME WHO CAN BE RELEGATED TO SECOND-CLASS CITIZENSHIP.  BUT IF WE
CONSTRUE THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT TO PERMIT
STATES TO "EXPERIMENT" WITH THE BASIC RIGHTS OF PEOPLE, WE OPEN A
VERITABLE PANDORA'S BOX.  FOR HATE AND PREJUDICE ARE VERSATILE FORCES
THAT CAN DEGRADE THE CONSTITUTIONAL SCHEME.  /3/ 

THAT, HOWEVER, IS ONLY ONE OF MY CONCERNS WHEN WE MAKE THE BILL OF
RIGHTS, AS APPLIED TO THE STATES, A "WATERED DOWN" VERSION OF WHAT THAT
CHARTER GUARANTEES.  MY CHIEF CONCERN IS ONE OFTEN EXPRESSED BY THE
LATE MR. JUSTICE BLACK, WHO WAS ALARMED AT THE PROSPECT OF NINE MEN
APPOINTED FOR LIFE SITTING AS A SUPER-LEGISLATIVE BODY TO DETERMINE
WHETHER GOVERNMENT HAS GONE TOO FAR.  THE BALANCING WAS DONE WHEN THE
CONSTITUTION AND BILL OF RIGHTS WERE WRITTEN AND ADOPTED.  FOR THIS
COURT TO DETERMINE, SAY, WHETHER ONE PERSON BUT NOT ANOTHER IS ENTITLED
TO FREE SPEECH IS A POWER NEVER GRANTED IT.  BUT THAT IS THE ULTIMATE
REACH OF DECISIONS THAT LET THE STATES, SUBJECT TO OUR VETO, EXPERIMENT
WITH RIGHTS GUARANTEED BY THE BILL OF RIGHTS. 

I WOULD CONSTRUE THE SIXTH AMENDMENT, WHEN APPLICABLE TO THE STATES,
PRECISELY AS I WOULD WHEN APPLIED TO THE FEDERAL GOVERNMENT. 

        II 

THE PLURALITY APPROVES A PROCEDURE WHICH DIMINISHES THE RELIABILITY
OF A JURY.  FIRST, IT ELIMINATES THE CIRCUMSTANCES IN WHICH A MINORITY
OF JURORS (A) COULD HAVE RATIONALLY PERSUADED THE ENTIRE JURY TO
ACQUIT, OR (B) WHILE UNABLE TO PERSUADE THE MAJORITY TO ACQUIT,
NONETHELESS COULD HAVE CONVINCED THEM TO CONVICT ONLY ON A LESSER
INCLUDED OFFENSE.  SECOND, IT PERMITS PROSECUTORS IN OREGON AND
LOUISIANA TO ENJOY A CONVICTION-ACQUITTAL RATIO SUBSTANTIALLY GREATER
THAN THAT ORDINARILY RETURNED BY UNANIMOUS JURIES. 

THE DIMINUTION OF VERDICT RELIABILITY FLOWS FROM THE FACT THAT
NONUNANIMOUS JURIES NEED NOT DEBATE AND DELIBERATE AS FULLY AS MUST
UNANIMOUS JURIES.  AS SOON AS THE REQUISITE MAJORITY IS ATTAINED,
FURTHER CONSIDERATION IS NOT REQUIRED EITHER BY OREGON OR BY LOUISIANA
EVEN THOUGH THE DISSIDENT JURORS MIGHT, IF GIVEN THE CHANCE, BE ABLE TO
CONVINCE THE MAJORITY.  SUCH PERSUASION DOES IN FACT OCCASIONALLY OCCUR
IN STATES WHERE THE UNANIMOUS REQUIREMENT APPLIES:  "IN ROUGHLY ONE
CASE IN TEN, THE MINORITY EVENTUALLY SUCCEEDS IN REVERSING AN INITIAL
MAJORITY, AND THESE MAY BE CASES OF SPECIAL IMPORTANCE."  /4/  ONE
EXPLANATION FOR THIS PHENOMENON IS THAT BECAUSE JURORS ARE OFTEN NOT
PERMITTED TO TAKE NOTES AND BECAUSE THEY HAVE IMPERFECT MEMORIES, THE
FORENSIC PROCESS OF FORCING JURORS TO DEFEND THEIR CONFLICTING
RECOLLECTIONS AND CONCLUSIONS FLUSHES OUT MANY NUANCES WHICH OTHERWISE
WOULD GO OVERLOOKED.  THIS COLLECTIVE EFFORT TO PIECE TOGETHER THE
PUZZLE OF HISTORICAL TRUTH, HOWEVER, IS CUT SHORT AS SOON AS THE
REQUISITE MAJORITY IS REACHED IN OREGON AND LOUISIANA.  INDEED, IF A
NECESSARY MAJORITY IS IMMEDIATELY OBTAINED, THEN NO DELIBERATION AT ALL
IS REQUIRED IN THESE STATES.  (THERE IS A SUGGESTION THAT THIS MAY HAVE
HAPPENED IN THE 10-2 VERDICT RENDERED IN ONLY 41 MINUTES IN APODACA'S
CASE.)  TO BE SURE, IN JURISDICTIONS OTHER THAN THESE TWO STATES,
INITIAL MAJORITIES NORMALLY PREVAIL IN THE END, BUT ABOUT A TENTH OF
THE TIME THE ROUGH-AND-TUMBLE OF THE JURY ROOM OPERATES TO REVERSE
COMPLETELY THEIR PRELIMINARY PERCEPTION OF GUILT OR INNOCENCE.  THE
COURT NOW EXTRACTS FROM THE JURY ROOM THIS AUTOMATIC CHECK AGAINST HAST
FACTFINDING BY RELIEVING JURORS OF THE DUTY TO HEAR OUT FULLY THE
DISSENTERS. 

IT IS SAID THAT THERE IS NO EVIDENCE THAT MAJORITY JURORS WILL
REFUSE TO LISTEN TO DISSENTERS WHOSE VOTES ARE UNNEEDED FOR
CONVICTION.  YET HUMAN EXPERIENCE TEACHES THAT POLITE AND ACADEMIC
CONVERSATION IS NO SUBSTITUTE FOR THE EARNEST AND ROBUST ARGUMENT
NECESSARY TO REACH UNANIMITY.  AS MENTIONED EARLIER, IN APODACA'S CASE,
WHATEVER COURTESY DIALOGUE TRANSPIRED COULD NOT HAVE LASTED MORE THAN
41 MINUTES.  I FAIL TO UNDERSTAND WHY THE COURT SHOULD LIFT FROM THE
STATES THE BURDEN OF JUSTIFYING SO RADICAL A DEPARTURE FROM AN ACCEPTED
AND APPLAUDED TRADITION AND INSTEAD DEMAND THAT THESE DEFENDANTS
DOCUMENT WITH EMPIRICAL EVIDENCE THAT HAS ALWAYS BEEN THOUGHT TO BE TOO
OBVIOUS FOR FURTHER STUDY. 

TO BE SURE, IN WILLIAMS V. FLORIDA, 399 U.S. 78, WE HELD THAT A
STATE COULD PROVIDE A JURY LESS THAN 12 IN NUMBER IN A CRIMINAL TRIAL. 
WE SAID:  "WHAT FEW EXPERIMENTS HAVE OCCURRED-- USUALLY IN THE CIVIL
AREA-- INDICATE THAT THERE IS NO DISCERNIBLE DIFFERENCE BETWEEN THE
RESULTS REACHED BY THE TWO DIFFERENT-SIZED JURIES.  IN SHORT, NEITHER
CURRENTLY AVAILABLE EVIDENCE NOR THEORY SUGGESTS THAT THE 12-MAN JURY
IS NECESSARILY MORE ADVANTAGEOUS TO THE DEFENDANT THAN A JURY COMPOSED
OF FEWER MEMBERS."  ID., AT 101-102. 

THAT RATIONALE OF WILLIAMS CAN HAVE NO APPLICATION HERE.  WILLIAMS
REQUIRES THAT THE CHANGE BE NEITHER MORE NOR LESS ADVANTAGEOUS TO
EITHER THE STATE OR THE DEFENDANT.  IT IS SAID THAT SUCH A SHOWING IS
SATISFIED HERE SINCE A 3:9 (LOUISIANA) OR 2:10 (OREGON) VERDICT WILL
RESULT IN ACQUITTAL.  YET EXPERIENCE SHOWS THAT THE LESS-THAN-UNANIMOUS
JURY OVERWHELMINGLY FAVORS THE STATES. 

MOREOVER, EVEN WHERE AN INITIAL MAJORITY WINS THE DISSENT OVER TO
ITS SIDE, THE ULTIMATE RESULT IN UNANIMOUS-JURY STATES MAY NONETHELESS
REFLECT THE RESERVATIONS OF UNCERTAIN JURORS.  I REFER TO MANY
COMPROMISE VERDICTS ON LESSER-INCLUDED OFFENSES AND LESSER SENTENCES. 
THUS, EVEN THOUGH A MINORITY MAY NOT BE FORCEFUL ENOUGH TO CARRY THE
DAY, THEIR DOUBTS MAY NONETHELESS CAUSE A MAJORITY TO EXERCISE
CAUTION.  OBVIOUSLY, HOWEVER, IN OREGON AND LOUISIANA, DISSIDENT JURORS
WILL NOT HAVE THE OPPORTUNITY THROUGH FULL DELIBERATION TO TEMPER THE
OPPOSING FACTION'S DEGREE OF CERTAINTY OF GUILT. 

THE NEW RULE ALSO HAS AN IMPACT ON CASES IN WHICH A UNANIMOUS JURY
WOULD HAVE NEITHER VOTED TO ACQUIT NOR TO CONVICT, BUT WOULD HAVE
DEADLOCKED.  IN UNANIMOUS-JURY STATES, THIS OCCURS ABOUT 5.6% OF THE
TIME.  OF THESE DEADLOCKED JURIES, KALVEN AND ZEISEL SAY THAT 56%
CONTAIN EITHER ONE, TWO, OR THREE DISSENTERS.  IN THESE LATTER CASES,
THE MAJORITIES FAVOR THE PROSECUTION 44% (OF THE 56%) BUT THE DEFENDANT
ONLY 12% (OF THE 56%).  /5/  THUS, BY ELIMINATING THESE DEADLOCKS,
LOUISIANA WINS 44 CASES FOR EVERY 12 THAT IT LOSES, OBTAINING IN THIS
BAND OF OUTCOMES A SUBSTANTIALLY MORE FAVORABLE CONVICTION RATIO (3.67
TO 1) THAN THE UNANIMOUS-JURY RATIO OF SLIGHTLY LESS THAN TWO GUILTY
VERDICTS FOR EVERY ACQUITTAL.  H. KALVEN & H. ZEISEL, THE AMERICAN JURY
461, 488 (TABLE 139) (1966).  BY ELIMINATING THE ONE-AND-TWO-DISSENTING
JUROR CASES, OREGON DOES EVEN BETTER, GAINING 4.25 CONVICTIONS FOR
EVERY ACQUITTAL.  WHILE THE STATUTES ON THEIR FACE DECEPTIVELY APPEAR
TO BE NEUTRAL, THE USE OF THE NONUNANIMOUS JURY STACKS THE TRUTH
DETERMINING PROCESS AGAINST THE ACCUSED.  THUS, WE TAKE ONE STEP MORE
AWAY FROM THE ACCUSATORIAL SYSTEM THAT HAS BEEN OUR PROUD BOAST. 

IT IS MY BELIEF THAT A UNANIMOUS JURY IS NECESSARY IF THE GREAT
BARRICADE KNOWN AS PROOF BEYOND A REASONABLE DOUBT IS TO BE
MAINTAINED.  THIS IS NOT TO EQUATE PROOF BEYOND A REASONABLY DOUBT WITH
THE REQUIREMENT OF A UNANIMOUS JURY.  THAT WOULD BE ANALYTICALLY
FALLACIOUS SINCE A DEADLOCKED JURY DOES NOT BAR, AS DOUBLE JEOPARDY,
RETRIAL FOR THE SAME OFFENSE.  SEE DREYER V. ILLINOIS, 187 U.S. 71. 
NEVERTHELESS, ONE IS NECESSARY FOR A PROPER EFFECTUATION OF THE OTHER. 
COMPARE MAPP V. OHIO, 367 U.S. 643, WITH WOLF V. COLORADO, 338 U.S.
25. 

SUPPOSE A JURY BEGINS WITH A SUBSTANTIAL MINORITY BUT THEN IN THE
PROCESS OF DELIBERATION A SUFFICIENT NUMBER CHANGES TO REACH THE
REQUIRED 9:3 OR 10:2 FOR A VERDICT.  IS NOT THERE STILL A LINGERING
DOUBT ABOUT THAT VERDICT?  IS IT NOT CLEAR THAT THE SAFEGUARD OF
UNANIMITY OPERATES IN THIS CONTEXT TO MAKE IT FAR MORE LIKELY THAT
GUILT IS ESTABLISHED BEYOND A REASONABLE DOUBT? 

THE LATE LEARNED HAND SAID THAT "AS A LITIGANT I SHOULD DREAD A
LAWSUIT BEYOND ALMOST ANYTHING ELSE SHORT OF SICKNESS AND DEATH."  /6/
AT THE CRIMINAL LEVEL THAT DREAD MULTIPLIES.  ANY PERSON FACED WITH THE
AWESOME POWER OF GOVERNMENT IS IN GREAT JEOPARDY, EVEN THOUGH
INNOCENT.  FACTS ARE ALWAYS ELUSIVE AND OFTEN TWO-FACED.  WHAT MAY
APPEAR TO ONE TO IMPLY GUILT MAY CARRY NO SUCH OVERTONES TO ANOTHER. 
EVERY CRIMINAL PROSECUTION CROSSES TREACHEROUS GROUND, FOR GUILT IS
COMMON TO ALL MEN.  YET THE GUILT OF ONE MAY BE IRRELEVANT TO THE
CHARGE ON WHICH HE IS TRIED OR INDICATE THAT IF THERE IS TO BE A
PENALTY, IT SHOULD BE OF AN EXTREMELY LIGHT CHARACTER. 

THE RISK OF LOSS OF HIS LIBERTY AND THE CERTAINTY THAT IF FOUND
GUILTY HE WILL BE "STIGMATIZED BY THE CONVICTION" REQUIREMENT THAT NO
MAN SHOULD BE CONDEMNED WHERE THERE IS REASONABLE DOUBT ABOUT HIS
GUILT.  397 U.S.,AT 363-364. 

WE THEREFORE HAVE ALWAYS HELD THAT IN CRIMINAL CASES WE WOULD ERR ON
THE SIDE OF LETTING THE GUILTY GO FREE RATHER THAN SENDING THE INNOCENT
TO JAIL.  WE HAVE REQUIRED PROOF BEYOND A REASONABLE DOUBT AS "CONCRETE
SUBSTANCE FOR THE PRESUMPTION OF INNOCENCE."  ID., AT 363. 

THAT PROCEDURE HAS REQUIRED A DEGREE OF PATIENCE ON THE PART OF THE
JURORS, FORCING THEM TO DELIBERATE IN ORDER TO REACH A UNANIMOUS
VERDICT.  UP UNTIL TODAY THE PRICE HAS NEVER SEEMED TOO HIGH.  NOW A
"LAW AND ORDER" JUDICIAL MOOD CAUSES THESE BARRICADES TO BE LOWERED. 

THE REQUIREMENTS OF A UNANIMOUS JURY VERDICT IN CRIMINAL CASES AND
PROOF BEYOND A REASONABLY DOUBT ARE SO EMBEDDED IN OUR CONSTITUTIONAL
LAW AND TOUCH SO DIRECTLY ALL THE CITIZENS AND ARE SUCH IMPORTANT
BARRICADES OF LIBERTY THAT IF THEY ARE TO BE CHANGED THEY SHOULD BE
INTRODUCED BY CONSTITUTIONAL AMENDMENT. 

TODAY THE COURT APPROVES A NINE-TO-THREE VERDICT.  WOULD THE COURT
RELAX THE STANDARD OF REASONABLE DOUBT STILL FURTHER BY RESORTING TO
EIGHT-TO-FOUR VERDICTS, OR EVEN A MAJORITY RULE?  MOREOVER, IN LIGHT OF
TODAY'S HOLDINGS AND THAT OF WILLIAMS V. FLORIDA, IN THE FUTURE WOULD
IT INVALIDATE THREE-TO-TWO OR EVEN TWO-TO-ONE CONVICTIONS? 

IS THE NEXT STEP THE ELIMINATION OF THE PRESUMPTION OF INNOCENCE? 
MR. JUSTICE FRANKFURTER, WRITING IN DISSENT IN LELAND V. OREGON, 343
U.S. 790, 802-803, SAID: 

"IT IS NOT UNTHINKABLE THAT FAILURE TO BRING THE GUILTY TO BOOK FOR
A HEINOUS CRIME WHICH DEEPLY STIRS POPULAR SENTIMENT MAY LEAD THE
LEGISLATURE OF A STATE, IN ONE OF THOSE EMOTIONAL STORMS WHICH ON
OCCASION SWEEP OVER OUR PEOPLE, TO ENACT THAT THEREAFTER AN INDICTMENT
FOR MURDER, FOLLOWING ATTEMPTED RAPE, SHOULD BE PRESUMPTIVE PROOF OF
GUILT AND CAST UPON THE DEFENDANT THE BURDEN OF PROVING BEYOND A
REASONABLE DOUBT THAT HE DID NOT DO THE KILLING.  CAN THERE BE ANY
DOUBT THAT SUCH A STATUTE WOULD GO BEYOND THE FREEDOM OF THE STATES,
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, TO FASHION
THEIR OWN PENAL CODES AND THEIR OWN PROCEDURES FOR ENFORCING THEM?  WHY
IS THAT SO?  BECAUSE FROM THE TIME THAT THE LAW WHICH WE HAVE INHERITED
HAS EMERGED FROM DARK AND BARBARIC TIMES, THE CONCEPTION OF JUSTICE
WHICH HAS DOMINATED OUR CRIMINAL LAW HAS REFUSED TO PUT AN ACCUSED AT
THE HAZARD OF PUNISHMENT IF HE FAILS TO REMOVE EVERY REASONABLE DOUBT
OF HIS INNOCENCE IN THE MINDS OF JURORS.  IT IS THE DUTY OF THE
GOVERNMENT TO ESTABLISH HIS GUILT BEYOND A REASONABLY DOUBT.  THIS
NOTION-- BASIC IN OUR LAW AND RIGHTLY ONE OF THE BOASTS OF A FREE
SOCIETY-- IS A REQUIREMENT AND A SAFEGUARD OF DUE PROCESS OF LAW IN THE
HISTORIC, PROCEDURAL CONTENT OF 'DUE PROCESS.'  ACCORDINGLY THERE CAN
BE NO DOUBT, I REPEAT, THAT A STATE CANNOT CAST UPON AN ACCUSED THE
DUTY OF ESTABLISHING BEYOND A REASONABLE DOUBT THAT HIS WAS NOT THE ACT
WHICH CAUSED THE DEATH OF ANOTHER."     THE VAST RESTRUCTURING OF
AMERICAN LAW WHICH IS ENTAILED IN TODAY'S DECISIONS IS FOR POLITICAL
NOT FOR JUDICIAL ACTION.  UNTIL THE CONSTITUTION IS REWRITTEN, WE HAVE
THE PRESENT ONE TO SUPPORT AND CONSTRUE.  IT HAS SERVED US WELL.  WE
LIFETIME APPOINTEES, WHO SIT HERE ONLY BY HAPPENSTANCE, ARE THE LAST
WHO SHOULD SIT AS A COMMITTEE OF REVISION ON RIGHTS AS BASIC AS THOSE
INVOLVED IN THE PRESENT CASES. 

PROOF BEYOND A REASONABLE DOUBT AND UNANIMITY OF CRIMINAL VERDICTS
AND THE PRESUMPTION OF INNOCENCE ARE BASIC FEATURES OF THE ACCUSATORIAL
SYSTEM.  WHAT WE DO TODAY IS NOT IN THAT TRADITION BUT MORE IN THE
TRADITION OF THE INQUISITION.  UNTIL AMENDMENTS ARE ADOPTED SETTING NEW
STANDARDS, I WOULD LET NO MAN BE FINED OR IMPRISONED IN DEROGATION OF
WHAT UP TO TODAY WAS INDISPUTABLY THE LAW OF THE LAND. 

/0/  (THIS OPINION APPLIES ALSO TO NO. 69-5046, APODACA ET AL. V.
OREGON, POST, P. 404). 

/1/  SEE ALSO 2 J.STORY, COMMENTARIES ON THE CONSTITUTION 559 N.2
(5TH ED. 1891):  "A TRIAL BY JURY IS GENERALLY UNDERSTOOD TO MEAN EX VI
TERMINI, A TRIAL BY A JURY OF TWELVE MEN, IMPARTIALLY SELECTED, WHO
MUST UNANIMOUSLY CONCUR IN THE GUILT OF THE ACCUSED BEFORE A LEGAL
CONVICTION CAN BE HAD.  ANY LAW, THEREFORE, DISPENSING WITH ANY OF
THESE REQUISITES, MAY BE CONSIDERED UNCONSTITUTIONAL."  IN THE 1969
TERM WE HELD A JURY OF SIX WAS SUFFICIENT, WILLIAMS V. FLORIDA, 399
U.S. 78, BUT WE NOTED THAT NEITHER EVIDENCE NOR THEORY SUGGESTED 12 WAS
MORE FAVORABLE TO THE ACCUSED THAN SIX.  THE SAME CANNOT BE SAID FOR
UNANIMITY AND IMPARTIAL SELECTION OF JURORS.  SEE INFRA, AT 388-394. 

STORY'S COMMENTARIES CITE NO STATUTORY AUTHORITY FOR THE REQUIREMENT
OF UNANIMITY IN A CRIMINAL JURY.  THAT IS BECAUSE SUCH AUTHORITY HAS
NEVER BEEN THOUGHT NECESSARY.  THE UNANIMOUS JURY HAS BEEN SO EMBEDDED
IN OUR LEGAL HISTORY THAT NO ONE WOULD QUESTION ITS CONSTITUTIONAL
POSITION AND THUS THERE WAS NEVER ANY NEED TO CODIFY IT.  INDEED, NO
CRIMINAL CASE DEALING WITH A UNANIMOUS JURY HAS EVER BEEN DECIDED BY
THIS COURT BEFORE TODAY, LARGELY BECAUSE OF THIS UNQUESTIONED
CONSTITUTIONAL ASSUMPTION.  A SIMILAR ASSUMPTION HAD, OF COURSE, BEEN
MADE WITH RESPECT TO THE SEVENTH AMENDMENT CIVIL JURY, BUT THAT ISSUE
DID REACH THE COURT.  AND THE COURT HAD NO DIFFICULTY AT ALL IN HOLDING
A UNANIMOUS JURY WAS A CONSTITUTIONAL REQUIREMENT.  AMERICAN PUBLISHING
CO. V. FISHER, 166 U.S. 464. 

/2/  OF COURSE, THE UNANIMOUS JURY'S ORIGIN IS LONG BEFORE THE
AMERICAN REVOLUTION.  THE FIRST RECORDED CASE WHERE THERE IS A
REQUIREMENT OF UNANIMITY IS ANONYMOUS CASE, 41 LIB.ASSISARUM 11 (1937),
REPRINTED IN ENGLISH IN R. POUND & T. PLUCKNETT, READINGS ON THE
HISTORY AND SYSTEM OF THE COMMON LAU 155-156 (3D ED. 1727). 

/3/  WHAT WAS SAID OF THE IMPACT OF MAPP V. OHIO, 367 U.S. 643, ON
FEDERALISM BEARS REPEATING HERE: 

"MAPP . . . ESTABLISHED NO ASSUMPTION BY THIS COURT OF SUPERVISORY
AUTHORITY OVER STATE COURTS . . . AND, CONSEQUENTLY, IT IMPLIED TO
TOTAL OBLITERATION OF STATE LAWS RELATING TO ARRESTS AND SEARCHES IN
FAVOR OF FEDERAL LAW.  MAPP SOUNDED NO DEATH KNELL FOR OUR FEDERALISM;
RATHER, IT ECHOED THE SENTIMENT OF ELKINS V. UNITED STATES (, 364 U.S.
206,) THAT 'A HEALTHY FEDERALISM DEPENDS UPON THE AVOIDANCE OF NEEDLESS
CONFLICT BETWEEN STATE AND FEDERAL COURTS' BY ITSELF URGING THAT
'(FEDERAL-STATE COOPERATION . . . WILL BE PROMOTED, IF ONLY BY
RECOGNITION OF THEIR NOW MUTUAL OBLIGATION TO RESPECT THE SAME
FUNDAMENTAL CRITERIA IN THEIR APPROACHES."  KER V. CALIFORNIA, 374 U.S.
23, 31. 

/4/  H. KALVEN & H. ZEISEL, THE AMERICAN JURY 490 (1966).  SEE ALSO
THE AMERICAN JURY:  NOTES FOR AN ENGLISH CONTROVERSY, 48 CHI.B.REC. 
195 (1967). 

/5/  THE AMERICAN JURY, SUPRA, N. 3, AT 460. 

LAST VOTE OF DEADLOCKED JURIES 

     VOTE FOR CONVICTION . . . PER CENT 

     11:1 . . . 24 

     10:2 . . . 10 

     9:3 . . . 10 

     8:4 . . . 6 

     7:5 . . . 13 

     6:6 . . . 13 

     5:7 . . . 8 

    4:8 . . . 4 

     3:9 . . . 4 

     2:10 . . . 8 

     1:11 . . .

              100% 

     NUMBER OF JURIES IN SAMPLE-- 48. 

/6/  3 LECTURES ON LEGAL TOPICS, ASSOCIATION OF BAR OF THE CITY OF
NEW YORK 105 (1926). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING.  /1/ 

READERS OF TODAY'S OPINIONS MAY BE UNDERSTANDABLY PUZZLED WHY
CONVICTIONS BY 11-1 AND 10-2 JURY VOTES ARE AFFIRMED IN NO. 69-5046,
WHEN A MAJORITY OF THE COURT AGREES THAT THE SIXTH AMENDMENT REQUIRES A
UNANIMOUS VERDICT IN FEDERAL CRIMINAL JURY TRIALS, AND A MAJORITY ALSO
AGREES THAT THE RIGHT TO JURY TRIAL GUARANTEED BY THE SIXTH AMENDMENT
IS TO BE ENFORCED AGAINST THE STATES ACCORDING TO THE SAME STANDARDS
THAT PROTECT THAT RIGHT AGAINST FEDERAL ENCROACHMENT.  THE REASON IS
THAT WHILE MY BROTHER POWELL AGREES THAT A UNANIMOUS VERDICT IS
REQUIRED IN FEDERAL CRIMINAL TRIALS, HE DOES NOT AGREE THAT THE SIXTH
AMENDMENT RIGHT TO A JURY TRIAL IS TO BE APPLIED IN THE SAME WAY TO
STATE AND FEDERAL GOVERNMENTS.  IN THAT CIRCUMSTANCE, IT IS ARGUABLE
THAT THE AFFIRMANCE OF THE CONVICTIONS OF APODACA, MADDEN, AND COOPER
IS NOT INCONSISTENT WITH A VIEW THAT TODAY'S DECISION IN NO. 69-5046 IS
A HOLDING THAT ONLY A UNANIMOUS VERDICT WILL AFFORD THE ACCUSED IN A
STATE CRIMINAL PROSECUTION THE JURY TRIAL GUARANTEED HIM BY THE SIXTH
AMENDMENT.  IN ANY EVENT, THE AFFIRMANCE MUST NOT OBSCURE THAT THE
MAJORITY OF THE COURT REMAINS OF THE VIEW THAT, AS IN THE CASE OF EVERY
SPECIFIC OF THE BILL OF RIGHTS THAT EXTENDS TO THE STATES, /2/  THE
SIXTH AMENDMENT'S JURY TRIAL GUARANTEE, HOWEVER, IT IS TO BE CONSTRUED,
HAS IDENTICAL APPLICATION AGAINST BOTH STATE AND FEDERAL GOVERNMENTS. 

I CAN ADD ONLY A FEW WORDS TO THE OPINIONS OF MY BROTHER DOUGLAS,
STEWART, AND MARSHALL, WHICH I HAVE JOINED.  EMOTIONS MAY RUN HIGH AT
CRIMINAL TRIALS.  ALTHOUGH WE CAN FAIRLY DEMAND THAT JURORS BE NEUTRAL
UNTIL THEY HAVE BEGUN TO HEAR EVIDENCE, IT WOULD SURPASS OUR POWER TO
COMMAND THAT THEY REMAIN UNMOVED BY THE EVIDENCE THAT UNFOLDS BEFORE
THEM.  WHAT THIS MEANS IS THAT JURORS WILL OFTEN ENTER THE JURY
DELIBERATIONS WITH STRONG OPINIONS ON THE MERITS OF THE CASE.  IF AT
THAT TIME A SUFFICIENT MAJORITY IS AVAILABLE TO REACH A VERDICT, THOSE
JURORS IN THE MAJORITY WILL HAVE NOTHING BUT THEIR OWN COMMON SENSE TO
RESTRAIN THEM FROM RETURNING A VERDICT BEFORE THEY HAVE FAIRLY
CONSIDERED THE POSITIONS OF JURORS WHO WOULD REACH A DIFFERENT
CONCLUSION.  EVEN GIVING ALL REASONABLE LEEWAY TO LEGISLATIVE JUDGMENT
IN SUCH MATTERS, I THINK IT SIMPLY IGNORES REALITY TO IMAGINE THAT MOST
JURORS IN THESE CIRCUMSTANCES WOULD OR EVEN COULD FAIRLY WEIGH THE
ARGUMENTS OPPOSING THEIR POSITION. 

IT IS IN THIS CONTEXT THAT WE MUST VIEW THE CONSTITUTIONAL
REQUIREMENT THAT ALL JURIES BE DRAWN FROM AN ACCURATE CROSS SECTION OF
THE COMMUNITY.  WHEN VERDICTS MUST BE UNANIMOUS, NO MEMBER OF THE JURY
MAY BE IGNORED BY THE OTHERS.  WHEN LESS THAN UNANIMITY IS SUFFICIENT,
CONSIDERATION OF MINORITY VIEWS MAY BECOME NOTHING MORE THAN A MATTER
OF MAJORITY GRACE.  IN MY OPINION, THE RIGHT OF ALL GROUPS IN THIS
NATION TO PARTICIPATE IN THE CRIMINAL PROCESS MEANS THE RIGHT TO HAVE
THEIR VOICES HEARD.  A UNANIMOUS VERDICT VINDICATES THAT RIGHT. 
MAJORITY VERDICTS COULD DESTROY IT. 

/1/  (THIS OPINION APPLIES ALSO TO NO. 69-5046, APODACA V. OREGON,
POST, P. 404.) 

/2/  SEE, FOR EXAMPLE, FIRST AMENDMENT, GITLOW V. NEW YORK, 268 U.S.
652 (1925); CANTWELL V. CONNECTICUT, 310 U.S. 296 (1940); LOUISIANA EX
REL. GREMILLION V. NAACP, 366 U.S. 293 (1961); FOURTH AMENDMENT, KER V.
CALIFORNIA, 374 U.S. 23 (1963); FIFTH AMENDMENT'S PRIVILEGE AGAINST
SELF-INCRIMINATION, MALLOY V. HOGAN, 378 U.S. 1 (1964); FIFTH
AMENDMENT'S DOUBLE JEOPARDY CALUSE, BENTON V. MARYLAND, 395 U.S. 784
(1969); FIFTH AMENDMENT'S JUST COMPENSATION CALUSE, CHICAGO, B. & Q.R.
CO. V. CHICAGO, 166 U.S. 226 (1897); SIXTH AMENDMENT'S SPEEDY TRIAL
CLAUSE, KLOPFER V. NORTH CAROLINA, 386 U.S. 213 (1967); SIXTH
AMENDMENT'S GUARANTEE OF JURY TRIAL, DUNCAN V. LOUISIANA, 391 U.S. 145
(1968); SIXTH AMENDMENT'S CONFRONTATION CLAUSE, POINTER V. TEXAS, 380
U.S. 400 (1965). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THIS CASE WAS TRIED BEFORE THE ANNOUNCEMENT OF OUR DECISION IN
DUNCAN V. LOUISIANA, 391 U.S. 145.  THEREFORE, UNLIKE APODACA V.
OREGON, DECIDED TODAY, POST, P. 404, THE SIXTH AMENDMENT'S GUARANTEE OF
TRIAL BY JURY IS NOT APPLICABLE HERE.  DESTEFANO V. WOODS, 392 U.S.
631.  BUT I THINK THE FOURTEENTH AMENDMENT ALONE CLEARLY REQUIRES THAT
IF A STATE PURPORTS TO ACCORD THE RIGHT OF TRIAL BY JURY IN A CRIMINAL
CASE, THEN ONLY A UNANIMOUS JURY CAN RETURN A CONSTITUTIONALLY VALID
VERDICT. 

THE GUARANTEE AGAINST SYSTEMATIC DISCRIMINATION IN THE SELECTION OF
CRIMINAL COURT JURIES IS A FUNDAMENTAL OF THE FOURTEENTH AMENDMENT. 
THAT HAS BEEN THE INSISTENT MESSAGE OF THIS COURT IN A LINE OF
DECISIONS EXTENDING OVER NEARLY A CENTURY.  E.G., CARTER V. JURY
COMM'N, 396 U.S. 320 (1970); WHITUS V. GEORGIA, 385 U.S. 545 (1967);
HERNANDEZ V. TEXAS, 347 U.S. 475 (1954); PATTON V. MISSISSIPPI, 332
U.S. 463 (1947); NORRIS V. ALABAMA, 294 U.S. 587 (1935); CARTER V.
TEXAS, 177 U.S. 442 (1900); STRAUDER V. WEST VIRGINIA, 100 U.S. 303
(1880).  THE CLEAR PURPOSE OF THESE DECISIONS HAS BEEN TO ENSURE
UNIVERSAL PARTICIPATION OF THE CITIZENRY IN THE ADMINISTRATION OF
CRIMINAL JUSTICE.  YET TODAY'S JUDGMENT APPROVES THE ELIMINATION OF THE
ONE RULE THAT CAN ENSURE THAT SUCH PARTICIPATION WILL BE MEANINGFUL--
THE RULE REQUIRING THE ASSENT OF ALL JURORS BEFORE A VERDICT OF
CONVICTION OR ACQUITTAL CAN BE RETURNED.  UNDER TODAY'S JUDGMENT, NINE
JURORS CAN SIMPLY IGNORE THE VIEWS OF THEIR FELLOW PANEL MEMBERS OF A
DIFFERENT RACE OR CLASS.  /1/ 

THE CONSTITUTIONAL GUARANTEE OF AN IMPARTIAL SYSTEM OF JURY
SELECTION IN A STATE CRIMINAL TRIAL RESTS ON THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.  SEE, E.G., WHITUS V.
GEORGIA, SUPRA, AT 459-550; CARTER V. TEXAS, SUPRA, AT 447; STRAUDER V.
WEST VIRGINIA, SUPRA, AT 310.  ONLY A JURY SO SELECTED CAN ASSURE BOTH
A FAIR CRIMINAL TRIAL, SEE ID., AT 308-309, AND PUBLIC CONFIDENCE IN
ITS RESULT, CF. WITHERSPOON V. ILLINOIS, 391 U.S. 510, 519-520; IN RE
WINSHIP, 397 U.S. 358, 364.  TODAY'S DECISION GROSSLY UNDERMINES THOSE
BASIC ASSURANCES.  FOR ONLY A UNANIMOUS JURY SO SELECTED CAN SERVE TO
MINIMIZE THE POTENTIAL BIGOTRY OF THOSE WHO MIGHT CONVICT ON INADEQUATE
EVIDENCE, OR ACQUIT WHEN EVIDENCE OF GUILT WAS CLEAR.  SEE STRAUDER V.
WEST VIRGINIA, SUPRA, AT 309.  AND COMMUNITY CONFIDENCE IN THE
ADMINISTRATION OF CRIMINAL JUSTICE CANNOT BUT BE CORRODED UNDER A
SYSTEM IN WHICH A DEFENDANT WHO IS CONSPICUOUSLY IDENTIFIED WITH A
PARTICULAR GROUP CAN BE ACQUITTED OR CONVICTED BY A JURY SPLIT ALONG
GROUP LINES.  THE REQUIREMENTS OF UNANIMITY AND IMPARTIAL SELECTION
THUS COMPLEMENT EACH OTHER IN ENSURING THE FAIR PERFORMANCE OF THE
VITAL FUNCTIONS OF A CRIMINAL COURT JURY. 

IT DOES NOT DENIGRATE THE SYSTEM OF TRIAL BY JURY TO ACKNOWLEDGE
THAT IT IS IMPERFECT, NOR DOES IT ENNOBLE THAT SYSTEM TO DRAPE UPON A
JURY MAJORITY THE MANTLE OF PRESUMPTIVE REASONABLENESS IN ALL
CIRCUMSTANCES.  THE COURT HAS NEVER BEFORE BEEN SO IMPERVIOUS TO
REALITY IN THIS AREA.  ITS RECOGNITION OF THE SERIOUS RISKS OF JURY
MISBEHAVIOR IS A THEME UNIFYING A SERIES OF CONSTITUTIONAL DECISIONS
THAT MAY BE IN JEOPARDY IF TODAY'S FACILE PRESUMPTION OF REGULARITY
BECOMES THE NEW POINT OF DEPARTURE.  WHY, IF JURIES DO NOT SOMETIMES
ACT OUT OF PASSION AND PREJUDICE, DOES THE CONSTITUTION REQUIRE THE
AVAILABILITY OF A CHANGE OF VENUE?  CF. GROPPI V. WISCONSIN, 400 U.S.
505; IRVIN V. DOWD, 366 U.S. 717; STRAUDER V. WEST VIRGINIA, SUPRA, AT
309.  WHY, IF JURIES DO NOT SOMETIMES ACT IMPROPERLY, DOES THE
CONSTITUTION REQUIRE PROTECTION FROM INFLAMMATORY PRESS COVERAGE AND EX
PARTE INFLUENCE BY COURT OFFICERS?  CF., E.G., SHEPPARD V. MAXWELL, 384
U.S. 333; PARKER V. GLADDEN, 385 U.S. 363; TURNER V. LOUISIANA, 379
U.S. 466.  WHY, IF JURIES MUST BE PRESUMED TO OBEY ALL INSTRUCTIONS
?ROM THE BENCH, DOES THE CONSTITUTION REQUIRE THAT CERTAIN INFORMATION
MUST NOT GO TO THE JURY NO MATTER HOW STRONG A CAUTIONARY CHARGE
ACCOMPANIES IT?  CF., E.G., BRUTON V. UNITED STATES, 391 U.S. 123;
JACKSON V. DENNO, 378 U.S. 368.  WHY, INDEED, SHOULD WE INSIST THAT NO
MAN CAN BE CONSTITUTIONALLY CONVICTED BY A JURY FROM WHICH MEMBERS OF
AN IDENTIFIABLE GROUP TO WHICH HE BELONGS HAVE BEEN SYSTEMATICALLY
EXCLUDED?  CF., E.G., HERNANDEZ V. TEXAS, 347 U.S. 475. 

SO DEEPLY ENGRAINED IS THE LAW'S TRADITION OF REFUSAL TO ENGAGE IN
AFTER-THE-FACT REVIEW OF JURY DELIBERATIONS, HOWEVER, THAT THESE AND
OTHER SAFEGUARDS PROVIDE NO MORE THAN LIMITED PROTECTION.  THE
REQUIREMENT THAT THE VERDICT OF THE JURY BE UNANIMOUS, SURELY AS
IMPORTANT AS THESE OTHER CONSTITUTIONAL REQUISITES, PRESERVES THE
JURY'S FUNCTION IN LINKING LAW WITH CONTEMPORARY SOCIETY.  IT PROVIDES
THE SIMPLE AND EFFECTIVE METHOD ENDORSED BY CENTURIES OF EXPERIENCE AND
HISTORY TO COMBAT THE INJURIES TO THE FAIR ADMINISTRATION OF JUSTICE
THAT CAN BE INFLICTED BY COMMUNITY PASSION AND PREJUDICE.     I
DISSENT. 

/1/  AND, NOTWITHSTANDING MR. JUSTICE BLACKMUN'S DISCLAIMER, THERE
IS NOTHING IN THE REASONING OF THE COURT'S OPINION THAT WOULD STOP IT
FROM APPROVING VERDICTS 8-4 OR EVEN 7-5. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING.  /1/ 

TODAY THE COURT CUTS THE HEART OUT OF TWO OF THE MOST IMPORTANT AND
INSEPARABLE SAFEGUARDS THE BILL OF RIGHTS OFFERS A CRIMINAL DEFENDANT:
THE RIGHT TO SUBMIT HIS CASE TO A JURY, AND THE RIGHT TO PROOF BEYOND A
REASONABLE DOUBT.  TOGETHER, THESE SAFEGUARDS OCCUPY A FUNDAMENTAL
PLACE IN OUR CONSTITUTIONAL SCHEME, PROTECTING THE INDIVIDUAL DEFENDANT
FROM THE AWESOME POWER OF THE STATE.  AFTER TODAY, THE SKELETON OF
THESE SAFEGUARDS REMAINS, BUT THE COURT STRIPS THEM OF LIFE AND OF
MEANING.  I CANNOT REFRAIN FROM ADDING MY PROTEST TO THAT OF MY
BROTHERS DOUGLAS, BRENNAN, AND STEWART, WHOM I JOIN. 

IN APODACA V. OREGON, THE QUESTION IS TOO FRIGHTENINGLY SIMPLE TO
BEAR MUCH DISCUSSION.  WE ARE ASKED TO DECIDE WHAT IS THE NATURE OF THE
"JURY" THAT IS GUARANTEED BY THE SIXTH AMENDMENT.  I WOULD HAVE THOUGHT
THAT HISTORY PROVIDED THE APPROPRIATE GUIDE, AND AS MR. JUSTICE POWELL
HAS DEMONSTRATED SO CONVINCINGLY, HISTORY COMPELS THE DECISION THAT
UNANIMITY IS AN ESSENTIAL FEATURE OF THAT JURY.  BUT THE MAJORITY HAS
EMBARKED ON A "FUNCTIONAL" ANALYSIS OF THE JURY THAT ALLOWS IT TO STRIP
AWAY, ONE BY ONE, VIRTUALLY ALL THE CHARACTERISTIC FEATURES OF THE JURY
AS WE KNOW IT.  TWO YEARS AGO, OVER MY DISSENT, THE COURT DISCARDED AS
AN ESSENTIAL FEATURE THE TRADITIONAL SIZE OF THE JURY.  WILLIAMS V.
FLORIDA, 399 U.S. 78 (1970).  TODAY THE COURT DISCARDS, AT LEAST IN
STATE TRIALS, THE TRADITIONAL REQUIREMENT OF UNANIMITY.  IT SEEMS
UTTERLY AND OMINOUSLY CLEAR THAT SO LONG AS THE TRIBUNAL BEARS THE
LABEL "JURY," IT WILL MEET SIXTH AMENDMENT REQUIREMENTS AS THEY ARE
PRESENTLY VIEWED BY THIS COURT.  THE COURT SEEMS TO REQUIRE ONLY THAT
JURORS BE LAYMEN, DRAWN FROM THE COMMUNITY WITHOUT SYSTEMATIC EXCLUSION
OF ANY GROUP, WHO EXERCISE COMMONSENSE JUDGMENT. 

MORE DISTRESSING STILL THAN THE COURT'S TREATMENT OF THE RIGHT TO
JURY TRIAL IS THE CAVALIER TREATMENT OF THE COURT GIVES TO PROOF BEYOND
A REASONABLE DOUBT.  THE COURT ASSERTS THAT WHEN A JURY VOTES NINE TO
THREE FOR CONVICTION, THE DOUBTS OF THE THREE DO NOT IMPEACH THE
VERDICT OF THE NINE.  THE ARGUMENT SEEMS TO BE THAT SINCE, UNDER
WILLIAMS, NINE JURORS ARE ENOUGH TO CONVICT, THE THREE DISSENTERS ARE
MERE SURPLUSAGE.  BUT THERE IS ALL THE DIFFERENCE IN THE WORLD BETWEEN
THREE JURORS WHO ARE NOT THERE, AND THREE JURORS WHO ENTERTAIN DOUBTS
AFTER HEARING ALL THE EVIDENCE.  IN THE FIRST CASE WE CAN NEVER KNOW,
AND IT IS SENSELESS TO ASK, WHETHER THE PROSECUTOR MIGHT HAVE PERSUADED
ADDITIONAL JURORS HAD THEY BEEN PRESENT.  BUT IN THE SECOND CASE WE
KNOW WHAT HAS HAPPENED:  THE PROSECUTOR HAS TRIED AND FAILED TO
PERSUADE THOSE JURORS OF THE DEFENDANT'S GUILT.  IN SUCH CIRCUMSTANCES,
IT DOES VIOLENCE TO LANGUAGE AND TO LOGIC TO SAY THAT THE GOVERNMENT
HAS PROVED THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. 

IT IS SAID THAT THIS ARGUMENT IS FALLACIOUS BECAUSE A DEADLOCKED
JURY DOES NOT, UNDER OUR LAW, BRING ABOUT AN ACQUITTAL OR BAR A
RETRIAL.  THE ARGUMENT SEEMS TO BE THAT IF THE DOUBT OF A DISSENTING
JUROR WERE THE "REASONABLY DOUBT" THAT CONSTITUTIONALLY BARS
CONVICTION, THEN IT WOULD NECESSARILY RESULT IN AN ACQUITTAL AND BAR
RETRIAL.  BUT THAT ARGUMENT RESTS ON A COMPLETE NON SEQUITUR.  THE
REASONABLE-DOUBT RULE, PROPERLY VIEWED, SIMPLY ESTABLISHES THAT, AS A
PREREQUISITE TO OBTAINING A VALID CONVICTION, THE PROSECUTOR MUST
OVERCOME ALL OF THE JURY'S REASONABLY DOUBTS; IT DOES NOT, OF ITSELF,
DETERMINE WHAT SHALL HAPPEN IF HE FAILS TO DO SO.  THAT IS A QUESTION
TO BE ANSWERED WITH REFERENCE TO A WHOLLY DIFFERENT CONSTITUTIONAL
PROVISION, THE FIFTH AMENDMENT BAN ON DOUBLE JEOPARDY, MADE APPLICABLE
TO THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT IN BENTON V. MARYLAND, 395 U.S. 784 (1969). 

UNDER PREVAILING NOTIONS OF DOUBLE JEOPARDY, IF A JURY HAS TRIED AND
FAILED TO REACH A UNANIMOUS VERDICT, A NEW TRIAL MAY BE HELD.  UNITED
STATES V. PEREZ, 9 WHEAT.  579 (1824).  THE STATE IS FREE, CONSISTENT
WITH THE BAN ON DOUBLE JEOPARDY, TO TREAT THE VERDICT OF A NONUNANIMOUS
JURY AS A NULLITY RATHER THAN AS AN ACQUITTAL.  ON RETRIAL, THE
PROSECUTOR MAY BE GIVEN THE OPPORTUNITY TO MAKE A STRONGER CASE IF HE
CAN:  NEW EVIDENCE MAY BE AVAILABLE, OLD EVIDENCE MAY HAVE DISAPPEARED,
AND EVEN THE SAME EVIDENCE MAY APPEAR IN A DIFFERENT LIGHT IF, FOR
EXAMPLE, THE DEMEANOR OF WITNESSES IS DIFFERENT.  BECAUSE THE SECOND
TRIAL MAY VARY SUBSTANTIALLY FROM THE FIRST, THE DOUBTS OF THE
DISSENTING JURORS AT THE FIRST TRIAL DO NOT NECESSARILY IMPEACH THE
VERDICT OF A NEW JURY ON RETRIAL.  BUT THAT CONCLUSION IS WHOLLY
CONSISTENT WITH THE VIEW THAT THE DOUBTS OF DISSENTING JURORS CREATE A
CONSTITUTIONAL BAR TO CONVICTION AT THE TRIAL THAT PRODUCED THOSE
DOUBTS.  UNTIL TODAY, I HAD THOUGHT THAT WAS THE LAW. 

I RESPECTFULLY REJECT THE SUGGESTION OF MY BROTHER POWELL THAT THE
DOUBTS OF MINORITY JURORS MAY BE ATTRIBUTABLE TO "IRRATIONALITY"
AGAINST WHICH SOME PROTECTION IS NEEDED.  FOR IF THE JURY HAS BEEN
SELECTED PROPERLY, AND EVERY JUROR IS A COMPETENT AND RATIONAL PERSON,
THEN THE "IRRATIONALITY" THAT ENTERS INTO THE DELIBERATION PROCESS IS
PRECISELY THE ESSENCE OF THE RIGHT TO A JURY TRIAL.  EACH TIME THIS
COURT HAS APPROVED A CHANGE IN THE FAMILIAR CHARACTERISTICS OF THE
JURY, WE HAVE REAFFIRMED THE PRINCIPLE THAT ITS FUNDAMENTAL
CHARACTERISTIC IS ITS CAPACITY TO RENDER A COMMONSENSE, LAYMAN'S
JUDGMENT, AS A REPRESENTATIVE BODY DRAWN FROM THE COMMUNITY.  TO FENCE
OUT A DISSENTING JUROR FENCES OUT A VOICE FROM THE COMMUNITY, AND
UNDERMINES THE PRINCIPLE ON WHICH OUR WHOLE NOTION OF THE JURY NOW
RESTS.  MY DISSENTING BROTHERS HAVE POINTED TO THE DANGER, UNDER A LESS
THAN-UNANIMOUS RULE, OF EXCLUDING FROM THE PROCESS MEMBERS OF MINORITY
GROUPS, WHOSE PARTICIPATION WE HAVE ELSEWHERE RECOGNIZED, HOWEVER, THAT
THE FENCING-OUT PROBLEM GOES BEYOND THE PROBLEM OF INDENTIFIABLE
MINORITY GROUPS.  THE JUROR WHOSE DISSENTING VOICE IS UNHEARD MAY BE A
SPOKESMAN, NOT FOR ANY MINORITY VIEWPOINT, BUT SIMPLE FOR HIMSELF-- AND
THAT, IN MY VIEW, IS ENOUGH.  THE DOUBTS OF A SINGLE JUROR ARE IN MY
VIEW EVIDENCE THAT THE GOVERNMENT HAS FAILED TO CARRY ITS BURDEN OF
PROVING GUILT BEYOND A REASONABLE DOUBT.  I DISSENT. 

/1/  (THIS OPINION APPLIES ALSO TO NO. 19-5046, APODACA V. OREGON,
POST, P. 404.) 

RICHARD A. BUCKLEY REARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLANT. 

LOUISE KORNS REARGUED THE CAUSE FOR APPELLEE.  WITH HER ON THE BRIEF
WERE JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, AND JIM
GARRISON. 
..END :



APODACA V. OREGON, 406 U.S. 404 


       APODACA ET AL. V. OREGON

        CERTIORARI TO THE COURT OF APPEALS OF OREGON

        NO. 69-5046.  ARGUED MARCH 1, 1971-- REARGUED JANUARY 10,

           1972-- DECIDED MAY 22, 1972 


PETITIONERS, WHO WERE FOUND GUILTY OF COMMITTING FELONIES, BY LESS
THAN-UNANIMOUS JURY VERDICTS, WHICH ARE PERMITTED UNDER OREGON LAW IN
NONCAPITAL CASES, CLAIM THAT THEIR CONVICTIONS, UPHELD ON APPEAL,
CONTRAVENE THEIR RIGHT TO TRIAL BY JURY UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 410-414, 369-380. 

1 ORE.APP.  483, 462 P.2D 691, AFFIRMED. 

MR. JUSTICE WHITE, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE REHNQUIST, CONCLUDED THAT: 

1.  THE SIXTH AMENDMENT GUARANTEE TO A JURY TRIAL, MADE APPLICABLE
TO THE STATES BY THE FOURTEENTH (DUNCAN V. LOUISIANA, 391 U.S. 145),
DOES NOT REQUIRE THAT THE JURY'S VOTE BE UNANIMOUS.  PP. 410-412. 

     (A) THE AMENDMENT'S ESSENTIAL PURPOSE OF "INTERPOSING) BETWEEN

  THE ACCUSED AND HIS ACCUSER . . . THE COMMONSENSE JUDGMENT OF A

  GROUP OF LAYMEN" REPRESENTATIVE OF A CROSS SECTION OF THE

  COMMUNITY, WILLIAMS V. FLORIDA, 399 U.S. 78, 100, IS SERVED

  DESPITE THE ABSENCE OF A UNANIMITY REQUIREMENT.  PP. 410-411. 

(B) PETITIONERS' ARGUMENT THAT THE SIXTH AMENDMENT REQUIRES

  JURY UNANIMITY IN ORDER TO EFFECTUATE THE REASONABLE-DOUBT

  STANDARD OTHERWISE MANDATED BY DUE PROCESS REQUIREMENTS IS

  WITHOUT MERIT SINCE THAT AMENDMENT DOES NOT REQUIRE PROOF BEYOND

  A REASONABLE DOUBT AT ALL.  PP. 411-412. 

2.  JURY UNANIMITY IS NOT MANDATED BY THE FOURTEENTH AMENDMENT
REQUIREMENTS THAT RACIAL MINORITIES NOT BE SYSTEMATICALLY EXCLUDED FROM
THE JURY-SELECTION PROCESS; EVEN WHEN RACIAL MINORITY MEMBERS ARE ON
THE JURY, IT DOES NOT FOLLOW THAT THEIR VIEWS WILL NOT BE JUST AS
RATIONALLY CONSIDERED BY THE OTHER JURY MEMBERS AS WOULD BE THE CASE
UNDER A UNANIMITY RULE.  PP. 412-414. 

MR. JUSTICE POWELL CONCLUDED THAT: 

1.  ALTHOUGH ON THE BASIS OF HISTORY AND PRECEDENT THE SIXTH
AMENDMENT MANDATES UNANIMITY IN A FEDERAL JURY TRIAL, THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT, WHILE REQUIRING STATES TO PROVIDE
JURY TRIALS FOR SERIOUS CRIMES, DOES NOT INCORPORATE ALL THE ELEMENTS
OF A JURY TRIAL WITHIN THE MEANING OF THE SIXTH AMENDMENT AND DOES NOT
REQUIRE JURY UNANIMITY.  OREGON'S "TEN OF TWELVE" RULE IS NOT VIOLATIVE
OF DUE PROCESS.  PP. 369-377. 

2.  NOR IS THE OREGON PROVISION INCONSISTENT WITH THE DUE PROCESS
REQUIREMENT THAT A JURY BE DRAWN FROM A REPRESENTATIVE CROSS SECTION OF
THE COMMUNITY AS THE JURY MAJORITY REMAINS UNDER THE DUTY TO CONSIDER
THE MINORITY VIEWPOINT IN THE COURSE OF DELIBERATION, AND THE USUAL
SAFEGUARDS EXIST TO MINIMIZE THE POSSIBILITY OF JURY IRRESPONSIBILITY. 
PP. 378-380. 

WHITE, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION,
IN WHICH BURGER, C.J., AND BLACKMUN AND REHNQUIST, JJ., JOINED. 
BLACKMUN, J., FILED A CONCURRING OPINION, ANTE P. 365.  POWELL, J.,
FILED AN OPINION CONCURRING IN THE JUDGMENT, ANTE, P. 366.  DOUGLAS,
J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ.,
JOINED, ANTE, P. 380.  BRENNAN, J., FILED A DISSENTING OPINION, IN
WHICH MARSHALL, J., JOINED, ANTE, P. 395.  STEWART, J., FILED A
DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ., JOINED, POST,
P. 414.  MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN,
J., JOINED, ANTE, P. 399. 

MR. JUSTICE WHITE ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, AND MR. JUSTICE
REHNQUIST JOINED. 

ROBERT APODACA, HENRY MORGAN COOPER, JR., AND JAMES ARNOLD MADDEN
WERE CONVICTED RESPECTIVELY OF ASSAULT WITH A DEADLY WEAPON, BURGLARY
IN A DWELLING, AND GRAND LARCENY BEFORE SEPARATE OREGON JURIES, ALL OF
WHICH RETURNED LESS-THAN-UNANIMOUS VERDICTS.  THE VOTE IN THE CASES OF
APODACA AND MADDEN WAS 11-1, WHILE THE VOTE IN THE CASE OF COOPER WAS
10-2, THE MINIMUM REQUISITE VOTE UNDER OREGON LAW FOR SUSTAINING A
CONVICTION.  /1/  AFTER THEIR CONVICTIONS HAD BEEN AFFIRMED BY THE
OREGON COURT OF APPEALS, 1 ORE.APP.  483, 462 P.2D 691 (1969), AND
REVIEW HAD BEEN DENIED BY THE SUPREME COURT OF OREGON, ALL THREE SOUGHT
REVIEW IN THIS COURT UPON A CLAIM THAT CONVICTION OF CRIME BY A LESS
THAN-UNANIMOUS JURY VIOLATES THE RIGHT TO TRIAL BY JURY IN CRIMINAL
CASES SPECIFIED BY THE SIXTH AMENDMENT AND MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH.  SEE DUNCAN V. LOUISIANA, 391 U.S. 145
(1968).  WE GRANTED CERTIORARI TO CONSIDER THIS CLAIM, 400 U.S. 901
(1970), WHICH WE NOW FIND TO BE WITHOUT MERIT. 

IN WILLIAMS V. FLORIDA, 399 U.S. 78 (1970), WE HAD OCCASION TO
CONSIDER A RELATED ISSUE: WHETHER THE SIXTH AMENDMENT'S RIGHT TO TRIAL
BY JURY REQUIRES THAT ALL JURIES CONSIST OF 12 MEN.  AFTER CONSIDERING
THE HISTORY OF THE 12-MAN REQUIREMENT AND THE FUNCTIONS IT PERFORMS IN
CONTEMPORARY SOCIETY, WE CONCLUDED THAT IT WAS NOT OF CONSTITUTIONAL
STATURE.  WE REACH THE SAME CONCLUSION TODAY WITH REGARD TO THE
REQUIREMENT OF UNANIMITY. 

        I 

LIKE THE REQUIREMENT THAT JURIES CONSIST OF 12 MEN, THE REQUIREMENT
OF UNANIMITY AROSE DURING THE MIDDLE AGES /2/  AND HAD BECOME AN
ACCEPTED FEATURE OF THE COMMON-LAW JURY BY THE 18TH CENTURY.  /3/ BUT,
AS WE OBSERVED IN WILLIAMS, "THE RELEVANT CONSTITUTIONAL HISTORY CASTS
CONSIDERABLE DOUBT ON THE EASY ASSUMPTION /4/  . . . THAT IF A GIVEN
FEATURE EXISTED IN A JURY AT COMMON LAW IN 1789, THEN IT WAS
NECESSARILY PRESERVED IN THE CONSTITUTION."  ID., AT 92-93.  THE MOST
SALIENT FACT IN THE SCANTY HISTORY OF THE SIXTH AMENDMENT, WHICH WE
REVIEWED IN FULL IN WILLIAMS, IS THAT, AS IT WAS INTRODUCED BY JAMES
MADISON IN THE HOUSE OF REPRESENTATIVES, THE PROPOSED AMENDMENT
PROVIDED FOR TRIAL 

"BY AN IMPARTIAL JURY OF FREEHOLDERS OF THE VICINAGE, WITH THE
REQUISITE OF UNANIMITY FOR CONVICTION, OF THE RIGHT OF CHALLENGE, AND
OTHER ACCUSTOMED REQUISITES.  . . . " 1 ANNALS OF CONG. 435 (1789). 
ALTHOUGH IT PASSED THE HOUSE WITH LITTLE ALTERATION, THIS PROPOSAL RAN
INTO CONSIDERABLE OPPOSITION IN THE SENATE, PARTICULARLY WITH REGARD TO
THE VICINAGE REQUIREMENT OF THE HOUSE VERSION.  THE DRAFT OF THE
PROPOSED AMENDMENT WAS RETURNED TO THE HOUSE IN CONSIDERABLY ALTERED
FORM, AND A CONFERENCE COMMITTEE WAS APPOINTED.  THAT COMMITTEE REFUSED
TO ACCEPT NOT ONLY THE ORIGINAL HOUSE LANGUAGE BUT ALSO AN ALTERNATE
SUGGESTION BY THE HOUSE CONFEREES THAT JURIES BY DEFINED AS POSSESSING
"THE ACCUSTOMED REQUISITES."  LETTER FROM JAMES MADISON TO EDMUND
PENDLETON, SEPT. 23, 1789, IN 5 WRITINGS OF JAMES MADISON 424 (G. HUNT
ED. 1904).  INSTEAD, THE AMENDMENT THAT ULTIMATELY EMERGED FROM THE
COMMITTEE AND THEN FROM CONGRESS AND THE STATES PROVIDED ONLY FOR
TRIAL 

"BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME
SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY
ASCERTAINED BY LAW.  . . . " 

AS WE OBSERVED IN WILLIAMS, ONE CAN DRAW CONFLICTING INFERENCES FROM
THIS LEGISLATIVE HISTORY.  ONE POSSIBLE INFERENCE IS THAT CONGRESS
ELIMINATED REFERENCES TO UNANIMITY AND TO THE OTHER "ACCUSTOMED
REQUISITES" OF THE JURY BECAUSE THOSE REQUISITES WERE THOUGHT ALREADY
TO BE IMPLICIT IN THE VERY CONCEPT OF JURY.  A CONTRARY EXPLANATION,
WHICH WE FOUND IN WILLIAMS TO BE THE MORE PLAUSIBLE, IS THAT THE
DELETION WAS INTENDED TO HAVE SOME SUBSTANTIVE EFFECT.  SEE 399 U.S.,AT
96-97.  SURELY ONE FACT THAT IS ABSOLUTELY CLEAR FROM THIS HISTORY IS
THAT, AFTER A PROPOSAL HAD BEEN MADE TO SPECIFY PRECISELY WHICH OF THE
COMMON-LAW REQUISITES OF THE JURY WERE TO BE PRESERVED BY THE
CONSTITUTION, THE FRAMERS EXPLICITLY REJECTED THE PROPOSAL AND INSTEAD
LEFT SUCH SPECIFICATION TO THE FUTURE.  AS IN WILLIAMS, WE MUST
ACCORDINGLY CONSIDER WHAT IS MEANT BY THE CONCEPT "JURY" AND DETERMINE
WHETHER A FEATURE COMMONLY ASSOCIATED WITH IT IS CONSTITUTIONALLY
REQUIRED.  AND, AS IN WILLIAMS, OUR INABILITY TO DIVINE "THE INTENT OF
THE FRAMERS" WHEN THEY ELIMINATED REFERENCES TO THE "ACCUSTOMED
REQUISITES" REQUIRES THAT IN DETERMINING WHAT IS MEANT BY A JURY WE
MUST TURN TO OTHER THAN PURELY HISTORICAL CONSIDERATIONS. 

        II 

OUR INQUIRY MUST FOCUS UPON THE FUNCTION SERVED BY THE JURY IN
CONTEMPORARY SOCIETY.  CF. WILLIAMS V. FLORIDA, SUPRA, AT 99-100.  AS
WE SAID IN DUNCAN, THE PURPOSE OF TRIAL BY JURY IS TO PREVENT
OPPRESSION BY THE GOVERNMENT BY PROVIDING A "SAFEGUARD AGAINST THE
CORRUPT OR OVERZEALOUS PROSECUTOR AND AGAINST THE COMPLIANT, BIASED, OR
ECCENTRIC JUDGE."  DUNCAN V. LOUISIANA, 391 U.S.,AT 156.  "GIVEN THIS
PURPOSE, THE ESSENTIAL FEATURE OF A JURY OBVIOUSLY LIES IN THE
INTERPOSITION BETWEEN THE ACCUSED AND HIS ACCUSER OF THE COMMONSENSE
JUDGMENT OF A GROUP OF LAYMEN.  . . . " WILLIAMS V. FLORIDA, SUPRA, AT
100.  A REQUIREMENT OF UNANIMITY, HOWEVER, DOES NOT MATERIALLY
CONTRIBUTE TO THE EXERCISE OF THIS COMMONSENSE JUDGMENT.  AS WE SAID IN
WILLIAMS, A JURY WILL COME TO SUCH A JUDGMENT AS LONG AS IT CONSISTS OF
A GROUP OF LAYMEN REPRESENTATIVE OF A CROSS SECTION OF THE COMMUNITY
WHO HAVE THE DUTY AND THE OPPORTUNITY TO DELIBERATE, FREE FROM OUTSIDE
ATTEMPTS AT INTIMIDATION, ON THE QUESTION OF A DEFENDANT'S GUILT.  IN
TERMS OF THIS FUNCTION WE PERCEIVE NO DIFFERENCE BETWEEN JURIES
REQUIRED TO ACT UNANIMOUSLY AND THOSE PERMITTED TO CONVICT OR ACQUIT BY
VOTES OF 10 TO TWO OR 11 TO ONE.  REQUIRING UNANIMITY WOULD OBVIOUSLY
PRODUCE HUNG JURIES IN SOME SITUATIONS WHERE NONUNANIMOUS JURIES WILL
CONVICT OR ACQUIT.  /5/  BUT IN EITHER CASE, THE INTEREST OF THE
DEFENDANT IN HAVING THE JUDGMENT OF HIS PEERS INTERPOSED BETWEEN
HIMSELF AND THE OFFICERS OF THE STATE WHO PROSECUTE AND JUDGE HIM IS
EQUALLY WELL SERVED. 

III 

PETITIONERS NEVERTHELESS ARGUE THAT UNANIMITY SERVES OTHER PURPOSES
CONSTITUTIONALLY ESSENTIAL TO THE CONTINUED OPERATION OF THE JURY
SYSTEM.  THEIR PRINCIPAL CONTENTION IS THAT A SIXTH AMENDMENT "JURY
TRIAL" MADE MANDATORY ON THE STATES BY VIRTUE OF THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT, DUNCAN V. LOUISIANA, SUPRA, SHOULD BE HELD
TO REQUIRE A UNANIMOUS JURY VERDICT IN ORDER TO GIVE SUBSTANCE TO THE
REASONABLE-DOUBT STANDARD OTHERWISE MANDATED BY THE DUE PROCESS
CLAUSE.  SEE IN RE WINSHIP, 397 U.S. 358, 363-364 (1970). 

WE ARE QUITE SURE, HOWEVER, THAT THE SIXTH AMENDMENT ITSELF HAS
NEVER BEEN HELD TO REQUIRE PROOF BEYOND A REASONABLE DOUBT IN CRIMINAL
CASES.  THE REASONABLE-DOUBT STANDARD DEVELOPED SEPARATELY FROM BOTH
THE JURY TRIAL AND THE UNANIMOUS VERDICT.  AS THE COURT NOTED IN THE
WINSHIP CASE, THE RULE REQUIRING PROOF OF CRIME BEYOND A REASONABLE
DOUBT DID NOT CRYSTALLIZE IN THIS COUNTRY UNTIL AFTER THE CONSTITUTION
WAS ADOPTED.  SEE ID., AT 361.  /6/  AND IN THAT CASE, WHICH HELD SUCH
A BURDEN OF PROOF TO BE CONSTITUTIONALLY REQUIRED, THE COURT PURPORTED
TO DRAW NO SUPPORT FROM THE SIXTH AMENDMENT. 

PETITIONERS' ARGUMENT THAT THE SIXTH AMENDMENT REQUIRES JURY
UNANIMITY IN ORDER TO GIVE EFFECT TO THE REASONABLE-DOUBT STANDARD THUS
FOUNDERS ON THE FACT THAT THE SIXTH AMENDMENT DOES NOT REQUIRE PROOF
BEYOND A REASONABLE DOUBT AT ALL.  THE REASONABLE-DOUBT ARGUMENT IS
ROOTED, IN EFFECT, IN DUE PROCESS AND HAS BEEN REJECTED IN JOHNSON V.
LOUISIANA, ANTE, P. 356. 

        IV 

PETITIONERS ALSO CITE QUITE ACCURATELY A LONG LINE OF DECISIONS OF
THIS COURT UPHOLDING THE PRINCIPLE THAT THE FOURTEENTH AMENDMENT
REQUIRES JURY PANELS TO REFLECT A CROSS SECTION OF THE COMMUNITY.  SEE,
E.G., WHITUS V. GEORGIA, 385 U.S. 545 (1967); SMITH V. TEXAS, 311 U.S.
128 (1940); NORRIS V. ALABAMA, 294 U.S. 587 (1935); STRAUDER V. WEST
VIRGINIA, 100 U.S. 303 (1880).  THEY THEN CONTEND THAT UNANIMITY IS A
NECESSARY PRECONDITION FOR EFFECTIVE APPLICATION OF THE CROSS-SECTION
REQUIREMENT, BECAUSE A RULE PERMITTING LESS THAN UNANIMOUS VERDICTS
WILL MAKE IT POSSIBLE FOR CONVICTIONS TO OCCUR WITHOUT THE ACQUIESCENCE
OF MINORITY ELEMENTS WITHIN THE COMMUNITY. 

THERE ARE TWO FLAWS IN THIS ARGUMENT.  ONE IS PETITIONERS'
ASSUMPTION THAT EVERY DISTINCT VOICE IN THE COMMUNITY HAS A RIGHT TO BE
REPRESENTED ON EVERY JURY AND A RIGHT TO PREVENT CONVICTION OF A
DEFENDANT IN ANY CASE.  ALL THAT THE CONSTITUTION FORBIDS, HOWEVER, IS
SYSTEMATIC EXCLUSION OF IDENTIFIABLE SEGMENTS OF THE COMMUNITY FROM
JURY PANELS AND FROM THE JURIES ULTIMATELY DRAWN FROM THOSE PANELS; A
DEFENDANT MAY NOT, FOR EXAMPLE, CHALLENGE THE MAKEUP OF A JURY MERELY
BECAUSE NO MEMBERS OF HIS RACE ARE ON THE JURY, BUT MUST PROVE THAT HIS
RACE HAS BEEN SYSTEMATICALLY EXCLUDED.  SEE SWAIN V. ALABAMA, 380 U.S.
202, 208-209 (1965); CASSELL V. TEXAS, 339 U.S. 282, 286-287 (1950);
AKINS V. TEXAS, 325 U.S. 398, 403-404 (1945); RUTHENBERG V. UNITED
STATES, 245 U.S. 480 1918).  NO GROUP, IN SHORT, HAS THE RIGHT TO BLOCK
CONVICTIONS; IT HAS ONLY THE RIGHT TO PARTICIPATE IN THE OVERALL LEGAL
PROCESSES BY WHICH CRIMINAL GUILT AND INNOCENCE ARE DETERMINED. 

WE ALSO CANNOT ACCEPT PETITIONERS' SECOND ASSUMPTION-- THAT MINORITY
GROUPS, EVEN WHEN THEY ARE REPRESENTED ON A JURY, WILL NOT ADEQUATELY
REPRESENT THE VIEWPOINT OF THOSE GROUPS SIMPLY BECAUSE THEY MAY BE
OUTVOTED IN THE FINAL RESULT.  THEY WILL BE PRESENT DURING ALL
DELIBERATIONS, AND THEIR VIEWS WILL BE HEARD.  WE CANNOT ASSUME THAT
THE MAJORITY OF THE JURY WILL REFUSE TO WEIGH THE EVIDENCE AND REACH A
DECISION UPON RATIONAL GROUNDS, JUST AS IT MUST NOW DO IN ORDER TO
OBTAIN UNANIMOUS VERDICTS, OR THAT A MAJORITY WILL DEPRIVE A MAN OF HIS
LIBERTY ON THE BASIS OF PREJUDICE WHEN A MINORITY IS PRESENTING A
REASONABLY ARGUMENT IN FAVOR OF ACQUITTAL.  WE SIMPLY FIND NO PROOF FOR
THE NOTION THAT A MAJORITY WILL DISREGARD ITS INSTRUCTIONS AND CAST ITS
VOTES FOR GUILT OR INNOCENCE BASED ON PREJUDICE RATHER THAN THE
EVIDENCE. 

WE ACCORDINGLY AFFIRM THE JUDGMENT OF THE COURT OF APPEALS OF
OREGON. 

            IT IS SO ORDERED. 

(FOR CONCURRING OPINION OF BLACKMUN, J., SEE ANTE, P. 365.) 

(FOR OPINION OF POWELL, J., CONCURRING IN JUDGMENT, SEE ANTE, P.
366.) 

(FOR DISSENTING OPINION OF DOUGLAS, J., SEE ANTE, P. 380.) 

(FOR DISSENTING OPINION OF BRENNAN, J., SEE ANTE, P. 395.) 

(FOR DISSENTING OPINION OF MARSHALL, J., SEE ANTE, P. 399.) 

/1/  ORE.  CONST., ART. I, SEC. 11, READS IN RELEVANT PART: 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL HAVE THE RIGHT TO
PUBLIC TRIAL BY AN IMPARTIAL JURY IN THE COUNTY IN WHICH THE OFFENSE
SHALL HAVE BEEN COMMITTED; . . . PROVIDED, HOWEVER, THAT ANY ACCUSED
PERSON, IN OTHER THAN CAPITAL CASES, AND WITH THE CONSENT OF THE TRIAL
JUDGE, MAY ELECT TO WAIVE TRIAL BY JURY AND CONSENT TO BE TRIED BY THE
JUDGE OF THE COURT ALONE, SUCH ELECTION TO BE IN WRITING; PROVIDED,
HOWEVER, THAT IN THE CIRCUIT COURT TEN MEMBERS OF THE JURY MAY RENDER A
VERDICT OF GUILTY OR NOT GUILTY, SAVE AND EXCEPT A VERDICT OF GUILTY OF
FIRST DEGREE MURDER, WHICH SHALL BE FOUND ONLY BY A UNANIMOUS VERDICT,
AND NOT OTHERWISE.  . . . " 

/2/  THE ORIGINS OF THE UNANIMITY RULE ARE SHROUDED IN OBSCURITY,
ALTHOUGH IT WAS ONLY IN THE LATTER HALF OF THE 14TH CENTURY THAT IT
BECAME SETTLED THAT A VERDICT HAD TO BE UNANIMOUS.  SEE 1 W.HOLDSWORTH,
A HISTORY OF ENGLISH LAW 318 (1956); THAYER, THE JURY AND ITS
DEVELOPMENT, 5 HARV.L.REV.(PTS.  1 AND 2) 249, 295, 296 (1892).  AT
LEAST FOUR EXPLANATIONS MIGHT BE GIVEN FOR THE DEVELOPMENT OF
UNANIMITY.  ONE THEORY IS THAT UNANIMITY DEVELOPED TO COMPENSATE FOR
THE LACK OF OTHER RULES INSURING THAT A DEFENDANT RECEIVED A FAIR
TRIAL.  SEE L. ORFIELD, CRIMINAL PROCEDURE FROM ARREST TO APPEAL 347
351 (1947); HARALSON, UNANIMOUS JURY VERDICTS IN CRIMINAL CASES, 21
MISS.L.J. 185, 191 (1950).  A SECOND THEORY IS THAT UNANIMITY AROSE OUT
OF THE PRACTICE IN THE ANCIENT MODE OF TRIAL BY COMPURGATION OF ADDING
TO THE ORIGINAL NUMBER OF 12 COMPURGATORS UNTIL ONE PARTY HAD 12
COMPURGATORS SUPPORTING HIS POSITION; THE ARGUMENT IS THAT WHEN THIS
TECHNIQUE OF AFFORCEMENT WAS ABANDONED, THE REQUIREMENT THAT ONE SIDE
OBTAIN THE VOTES OF ALL 12 JURORS REMAINED.  SEE P. DEVLIN, TRIAL BY
JURY 48-49 (1956); RYAN, LESS THAN UNANIMOUS JURY VERDICTS IN CRIMINAL
TRIALS, 58 J.CRIM.L.C.& P.S. 211, 213 (1967).  A THIRD POSSIBILITY IS
THAT UNANIMITY DEVELOPED BECAUSE EARLY JURIES, UNLIKE JURIES TODAY,
PERSONALLY HAD KNOWLEDGE OF THE FACTS OF A CASE; THE MEDIEVAL MIND
ASSUMED THERE COULD BE ONLY ONE CORRECT VIEW OF THE FACTS, AND, IF
EITHER ALL THE JURORS OR ONLY A MINORITY THEREOF DECLARED THE FACTS
ERRONEOUSLY, THEY MIGHT BE PUNISHED FOR PERJURY.  SEE T. PLUCKNETT, A.
CONCISE HISTORY OF THE COMMON LAW 131 (5TH ED. 1956); THAYER, SUPRA, AT
297.  GIVEN A VIEW THAT MINORITY JURORS WERE GUILTY OF CRIMINAL
PERJURY, THE DEVELOPMENT OF A PRACTICE OF UNANIMITY WOULD NOT BE
SURPRISING.  THE FINAL EXPLANATION IS THAT JURY UNANIMITY AROSE OUT OF
THE MEDIEVAL CONCEPT OF CONSENT.  INDEED, "THE WORD CONSENT (CONSENSUS)
CARRIED WITH IT THE IDEA OF CONCORDIA OR UNANIMITY.  . . . " M. CLARKE,
MEDIEVAL REPRESENTATION AND CONSENT 251 (1964).  EVEN IN 14TH-CENTURY
PARLIAMENTS THERE IS EVIDENCE THAT A MAJORITY VOTE WAS DEEMED
INSUFFICIENT TO BIND THE COMMUNITY OR INDIVIDUAL MEMBERS OF THE
COMMUNITY TO A LEGAL DECISION, SEE ID., AT 335-336; PLUCKNETT, THE
LANCASTRIAN CONSTITUTION, IN TUDOR STUDIES 161, 169-170 (R. SETON
WATSON ED. 1924); A UNANIMOUS DECISION WAS PREFERRED.  IT WAS ONLY IN
THE 15TH CENTURY THAT THE DECISIONMAKING PROCESS IN PARLIAMENT BECAME
AVOWEDLY MAJORITARIAN, SEE 1 K.PICKTHORN, EARLY TUDOR GOVERNMENT:
HENRY VII, P. 93 (1967), AS THE IDEAL OF UNANIMITY BECAME INCREASINGLY
DIFFICULT TO ATTAIN.  SEE CLARKE, SUPRA, AT 266-267.  FOR EVIDENCE IN
18TH-CENTURY AMERICA OF A SIMILAR CONCERN THAT DECISIONS BINDING ON THE
COMMUNITY BE TAKEN UNANIMOUSLY, SEE ZUCKERMAN, THE SOCIAL CONTEXT OF
DEMOCRACY IN MASSACHUSETTS, 25 WM.& MARY Q. (3D SER.)  523, 526-527,
540-544 (1968). 

/3/  SEE 3 W.BLACKSTONE, COMMENTARIES *375-376.  FOUR 18TH-CENTURY
STATE CONSTITUTIONS PROVIDED EXPLICITLY FOR UNANIMOUS JURY VERDICTS IN
CRIMINAL CASES, SEE N.C. CONST. OF 1776, ART. IX,; PA. CONST. OF 1776,
ART. IX; VT. CONST. OF 1786, ART. XI; VA. CONST. OF 1776, SEC. 8; WHILE
OTHER 18TH-CENTURY STATE CONSTITUTIONS PROVIDED FOR TRIAL BY JURY
ACCORDING TO THE COURSE OF THE COMMON LAW, SEE MD. CONST. OF 1776, ART.
III, OR THAT TRIAL BY JURY WOULD REMAIN "INVIOLATE," SEE GA. CONST. OF
1777, ART. LXI; KY. CONST. OF 1792, ART. XII, SEC. 6; N.Y. CONST. OF
1777, ART. XLI; TENN. CONST. OF 1796, ART. XI, SEC. 6; BE "CONFIRMED,"
SEE N.J. CONST. OF 1776, ART. XXII; OR REMAIN "AS HERETOFORE."  SEE
DEL. CONST. OF 1792, ART. I, SEC. 4; KY. CONST. OF 1792, ART. XII, SEC.
6, S.C. CONST. OF 1790, ART. IX, SEC. 6.  SEE ALSO APTHORP V. BACKUS, 1
KIRBY 407, 416-417 (CONN. 1788); GRINNELL V. PHILLIPS, 1 MASS. 530, 542
(1805).  ALTHOUGH UNANIMITY HAD NOT BEEN THE INVARIABLE PRACTICE IN
17TH-CENTURY AMERICA, WHERE MAJORITY VERDICTS WERE PERMITTED IN THE
CAROLINAS, CONNECTICUT, AND PENNSYLVANIA, SEE WILLIAMS V. FLORIDA, 399
U.S. 78, 98 N. 45 (1970), THE EXPLICIT CONSTITUTIONAL PROVISIONS,
PARTICULARLY OF STATES SUCH AS NORTH CAROLINA AND PENNSYLVANIA, THE
APPARENT CHANGE OF PRACTICE IN CONNECTICUT, AND THE UNQUESTIONING
ACCEPTANCE OF THE UNANIMITY RULE BY TEXT WRITERS SUCH AS ST. GEORGE
TUCKER INDICATE THAT UNANIMITY BECAME THE ACCEPTED RULE DURING THE 18TH
CENTURY, AS AMERICANS BECAME MORE FAMILIAR WITH THE DETAILS OF ENGLISH
COMMON LAW AND ADOPTED THOSE DETAILS IN THEIR OWN COLONIAL LEGAL
SYSTEMS.  SEE GENERALLY MURRIN, THE LEGAL TRANSFORMATION:  THE BENCH
AND BAR OF EIGHTEENTH-CENTURY MASSACHUSETTS, IN COLONIAL AMERICA:
ESSAYS IN POLITICS AND SOCIAL DEVELOPMENT 415 (S. KATZ ED 1971).  SEE
ALSO F. HELLER, THE SIXTH AMENDMENT 13-21 (1951). 

/4/  SEE ANDRES V. UNITED STATES, 333 U.S. 740, 748 (1948); MAXWELL
V. DOW, 176 U.S. 581, 586 (1900) (DICTUM).  CF. SPRINGVILLE V. THOMAS,
166 U.S. 707 (1897); AMERICAN PUBLISHING CO. V. FISHER, 166 U.S. 464
(1897). 

/5/  THE MOST COMPLETE STATISTICAL STUDY OF JURY BEHAVIOR HAS COME
TO THE CONCLUSION THAT WHEN JURIES ARE REQUIRED TO BE UNANIMOUS, "THE
PROBABILITY THAT AN ACQUITTAL MINORITY WILL HANG THE JURY IS ABOUT AS
GREAT AS THAT A GUILTY MINORITY WILL HANG IT."  H. KALVEN & H. ZEISEL,
THE AMERICAN JURY 461 (1966). 

/6/  FOR THE HISTORY OF THE REASONABLE-DOUBT REQUIREMENT, SEE
GENERALLY C. MCCORMICK, EVIDENCE SEC. 321 (1954); 9 J.WIGMORE, EVIDENCE
2497 (3D ED. 1940); MAY, SOME RULES OF EVIDENCE-- REASONABLE DOUBT IN
CIVIL AND CRIMINAL CASES, 10 AM.L.REV.  642, 651-660 (1876).  (SEE 69
U.S.L.REV.  169, 172 (1935).)  ACCORDING TO MAY AND MCCORMICK, THE
REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT FIRST CRYSTALLIZED IN
THE CASE OF REX V. FINNY, A HIGH TREASON CASE TRIED IN DUBLIN IN 1798
AND REPORTED IN 1 L.MACNALLY, RULES OF EVIDENCE ON PLEAS OF THE CROWN
*4 (1811).  CONFUSION ABOUT THE RULE PERSISTED IN THE UNITED STATES IN
THE EARLY 19TH CENTURY, WHERE IT WAS APPLIED IN CIVIL AS WELL AS
CRIMINAL CASES, SEE, E.G., ROPPS V. BARKER, 21 MASS (4 PICK.)  239, 242
(1826); IT WAS ONLY IN THE LATTER HALF OF THE CENTURY THAT THE
REASONABLE-DOUBT STANDARD CEASED TO BE APPLIED IN CIVIL CASES, SEE
ELLIS V. BUZZELL, 60 ME. 209 (1872), AND THAT AMERICAN COURTS BEGAN
APPLYING IT IN ITS MODERN FORM IN CRIMINAL CASES.  SEE COMMONWEALTH V.
WEBSTER, 59 MASS. (5 CUSH.)  295, 320 (1850).  SEE GENERALLY MAY,
SUPRA. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

IN DUNCAN V. LOUISIANA, 391 U.S. 145, THE COURT SQUARELY HELD THAT
THE SIXTH AMENDMENT RIGHT TO TRIAL BY JURY IN A FEDERAL CRIMINAL CASE
IS MADE WHOLLY APPLICABLE TO STATE CRIMINAL TRIALS BY THE FOURTEENTH
AMENDMENT.  UNLESS DUNCAN IS TO BE OVERRULED, THEREFORE, THE ONLY
RELEVANT QUESTION HERE IS WHETHER THE SIXTH AMENDMENT'S GUARANTEE OF
TRIAL BY JURY EMBRACES A GUARANTEE THAT THE VERDICT OF THE JURY MUST BE
UNANIMOUS.  THE ANSWER TO THAT QUESTION IS CLEARLY "YES," AS MY BROTHER
POWELL HAS COGENTLY DEMONSTRATED IN THAT PART OF HIS CONCURRING OPINION
THAT REVIEWS ALMOST A CENTURY OF SIXTH AMENDMENT ADJUDICATION.  /1/ 

UNTIL TODAY, IT HAS BEEN UNIVERSALLY UNDERSTOOD THAT A UNANIMOUS
VERDICT IS AN ESSENTIAL ELEMENT OF A SIXTH AMENDMENT JURY TRIAL.  SEE
ANDRES V. UNITED STATES, 333 U.S. 740, 748; PATTON V. UNITED STATES,
281 U.S. 276, 288; HAWAII V. MANKICHI, 190 U.S. 197, 211-212, MAXWELL
V. DOW, 176 U.S. 581, 586; THOMPSON V. UTAH, 170 U.S. 343, 351, 353;
CF. 2 J.STORY, COMMENTARIES ON THE CONSTITUTION 1779 N. 2 (5TH ED.
1891). 

I WOULD FOLLOW THESE SETTLED SIXTH AMENDMENT PRECEDENTS AND REVERSE
THE JUDGMENT BEFORE US. 

/1/  SEE ANTE, AT 369-371 (POWELL, J., CONCURRING IN JUDGMENT). 

RICHARD B. SOBOL REARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONERS. 

JACOB B. TANZER, SOLICITOR GENERAL OF OREGON, REARGUED THE CAUSE FOR
RESPONDENT.  WITH HIM ON THE BRIEF WERE LEE JOHNSON, ATTORNEY GENERAL,
AND THOMAS H. DENNEY, ASSISTANT ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JAMES J.
DOHERTY AND MARSHALL J. HARTMAN FOR THE NATIONAL LEGAL AID AND DEFENDER
ASSOCIATION, AND BY NORMAN DORSEN, MELVIN L. WULF, AND PAUL R. MEYER
FOR THE AMERICAN CIVIL LIBERTIES UNION. 
..END :























CAPLIN V. MARINE MIDLAND GRACE TRUST CO., 406 U.S. 416 


       CAPLIN, TRUSTEE V. MARINE MIDLAND GRACE TRUST CO. OF NEW

           YORK

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 70-220.  ARGUED MARCH 28, 1972-- DECIDED MAY 22, 1972 


PETITIONER, THE TRUSTEE OF WEBB & KNAPP, INC., UNDER CHAPTER X OF THE
BANKRUPTCY ACT, DOES NOT HAVE STANDING TO ASSERT, ON BEHALF OF HOLDERS
OF DEBENTURES ISSUED BY WEBB & KNAPP, CLAIMS OF MISCONDUCT BY AN
INDENTURE TRUSTEE.  PP. 417-435. 

439 F.2D 118, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, POWELL, AND REHNQUIST, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, IN WHICH BRENNAN, WHITE, AND BLACKMUN, JJ.,
JOINED, POST, P. 435. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE SOLE ISSUE IN THIS CASE IS WHETHER PETITIONER, THE TRUSTEE IN
REORGANIZATION OF WEBB & KNAPP, INC., HAS STANDING UNDER CHAPTER X OF
THE BANKRUPTCY ACT, 52 STAT. 883, 11 U.S.C. 501 ET SEQ., TO ASSERT, ON
BEHALF OF PERSONS HOLDING DEBENTURES ISSUED BY WEBB & KNAPP, CLAIMS OF
MISCONDUCT BY AN INDENTURE TRUSTEE.  THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK HELD THAT PETITIONER LACKED THE
REQUISITE STANDING, AND THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT AFFIRMED EN BACK, WITH TWO JUDGES DISSENTING, 439 F.2D
118 (1971).  /1/  WE GRANTED CERTIORARI, 404 U.S. 982 (1971), AND WE
NOW AFFIRM THE DECISION OF THE COURT OF APPEALS. 

        I 

WEBB & KNAPP AND ITS NUMEROUS SUBSIDIARIES WERE ENGAGED IN VARIOUS
REAL ESTATE ACTIVITIES IN BOTH THE UNITED STATES AND CANADA.  IN 1954,
THE CORPORATION EXECUTED AN INDENTURE WITH RESPONDENT, THE MARINE
MIDLAND TRUST COMPANY OF NEW YORK (MARINE), THAT PROVIDED FOR THE
ISSUANCE BY WEBB & KNAPP OF 5% DEBENTURES IN THE TOTAL AMOUNT OF
$8,607,600.  A CRITICAL PART OF THE INDENTURE WAS THE PROMISE BY WEBB &
KNAPP THAT NEITHER IT NOR ANY COMPANY AFFILIATED WITH IT /2/  WOULD
INCUR OR ASSUME "ANY INDEBTEDNESS RESULTING FROM MONEY BORROWED OR FROM
THE PURCHASE OF REAL PROPERTY OR INTERESTS IN REAL PROPERTY . . . OR
PURCHASE ANY REAL PROPERTY OR INTERESTS IN REAL PROPERTY" UNLESS THE
COMPANY'S CONSOLIDATED TANGIBLE ASSETS, AS DEFINED IN THE INDENTURE,
EQUALED 200% OF CERTAIN LIABILITIES, AFTER GIVING EFFECT TO THE
CONTEMPLATED INDEBTEDNESS OR PURCHASE.  /3/  BY REQUIRING THE COMPANY
TO MAINTAIN AN ASSET-LIABILITY RATIO OF 2:1, THE INDENTURE SOUGHT TO
PROTECT DEBENTURE PURCHASERS BY PROVIDING A CUSHION AGAINST ANY LOSSES
THAT THE COMPANY MIGHT SUFFER IN THE ORDINARY COURSE OF BUSINESS.  IN
ORDER TO DEMONSTRATE CONTINUING COMPLIANCE WITH THE REQUIREMENTS OF THE
INDENTURE, WEBB & KNAPP COVENANTED TO FILE AN ANNUAL CERTIFICATE WITH
MARINE STATING WHETHER THE CORPORATION (DEBTOR) HAD DEFAULTED ON ANY OF
ITS RESPONSIBILITIES UNDER THE INDENTURE DURING THE PRECEDING YEAR. 
/4/ 

IN ITS ROLE AS INDENTURE TRUSTEE, MARINE UNDERTOOK "IN CASE OF
DEFAULT . . . TO EXERCISE SUCH OF THE RIGHTS AND POWERS VESTED IN IT BY
(THE) INDENTURE, AND TO USE THE SAME DEGREE OF CARE AND SKILL IN THEIR
EXERCISE, AS A PRUDENT MAN WOULD EXERCISE OR USE UNDER THE
CIRCUMSTANCES IN THE CONDUCT OF HIS OWN AFFAIRS."  /5/  THIS
UNDERTAKING WAS QUALIFIED BY LANGUAGE IN THE INDENTURE THAT PERMITTED
THE TRUSTEE TO RELY ON THE ACCURACY OF CERTIFICATES OR REPORTS OF WEBB
& KNAPP, IN THE ABSENCE OF BAD FAITH.  /6/ 

COMMENCING IN 1959, WEBB & KNAPP SUSTAINED SUBSTANTIAL FINANCIAL
LOSSES IN EVERY YEAR.  /7/  FINALLY, ON MAY 7, 1965, MARINE FILED A
PETITION IN DISTRICT COURT SEEKING THE INVOLUNTARY REORGANIZATION OF
WEBB & KNAPP UNDER CHAPTER X OF THE BANKRUPTCY ACT, 11 U.S.C. 501 ET
SEQ.  PURSUANT TO SEC. 208 OF CHAPTER X, 11 U.S.C. 608, THE SECURITIES
AND EXCHANGE COMMISSION INTERVENED ON MAY 10, 1965.  /8/  MARINE'S
PETITION WAS SUBSEQUENTLY APPROVED AND PETITIONER WAS APPOINTED TRUSTEE
IN REORGANIZATION ON MAY 18, 1965. 

WITH THE APPROVAL OF THE DISTRICT COURT, PETITIONER EXERCISED THE
POWERS CONFERRED UPON HIM BY 11 U.S.C. 567 AND UNDERTOOK AN EXTENSIVE
INVESTIGATION OF THE FINANCIAL AFFAIRS OF WEBB & KNAPP.  HIS
INVESTIGATION SHOWED THAT THE COMPANY HAD TOTAL ASSETS OF $21,538,621
AND TOTAL LIABILITIES OF $60,036,164, PLUS CONTINGENT TAX LIABILITIES
OF $29,400,000.  INCLUDED AMONG THE LIABILITIES WERE THE 1954
DEBENTURES IN THE PRINCIPAL AMOUNT OF $4,298,200 PLUS INTEREST
SUBSEQUENT TO THE INCEPTION OF THE REORGANIZATION PROCEEDING.  /9/ 

THE INVESTIGATION LED PETITIONER TO CONCLUDE THAT MARINE HAD EITHER
WILLFULLY OR NEGLIGENTLY FAILED TO FULFILL ITS OBLIGATIONS UNDER THE
INDENTURE.  PETITIONER SUPPORTED HIS CONCLUSION WITH THE FOLLOWING
ALLEGATIONS:  THAT FROM 1954 TO 1964, WEBB & KNAPP'S YEARLY
CERTIFICATES OF COMPLIANCE WITH THE 2:1 ASSET-LIABILITY RATION MANDATED
BY THE INDENTURE WERE FRAUDULENT, BECAUSE THEY WERE BASED ON GROSSLY
OVERVALUED APPRAISALS OF REAL ESTATE PROPERTY; THAT FROM 1958 TO 1964,
WEBB & KNAPP DID NOT HAVE SUFFICIENT ASSETS TO COMPLY WITH THE TERMS OF
THE INDENTURE; THAT MARINE SHOULD HAVE KNOWN OR DID KNOW OF THE
INFLATED APPRAISALS; AND THAT BECAUSE MARINE PERMITTED WEBB & KNAPP TO
VIOLATE THE INDENTURE BY ENGAGING IN TRANSACTIONS THAT ITS IMPAIRED
ASSET-LIABILITY RATIO FORBADE, WEBB & KNAPP SUFFERED GREAT FINANCIAL
LOSSES.  /10/ 

HAVING OBTAINED THE APPROVAL OF THE DISTRICT COURT, PETITIONER FILED
AN INDEPENDENT ACTION ON BEHALF OF THE DEBENTURE HOLDERS AGAINST MARINE
SEEKING TO RECOVER THE PRINCIPAL AMOUNT OF THE OUTSTANDING DEBENTURES
AS DAMAGES FOR MARINE'S ALLEGED BAD-FAITH FAILURE TO COMPEL COMPLIANCE
WITH THE TERMS OF THE INDENTURE BY WEBB & KNAPP.  PETITIONER ALSO FILED
A COUNTERCLAIM IN THE SAME AMOUNT AGAINST MARINE IN THE REORGANIZATION
PROCEEDING IN WHICH MARINE HAD PREVIOUSLY FILED A CLAIM FOR SERVICES
RENDERED.  IN THE REORGANIZATION PROCEEDING, PETITIONER ALSO FILED AN
OBJECTION TO THE CLAIM FOR SERVICES RENDERED, ON THE GROUND THAT EVEN
IF PETITIONER COULD NOT OBTAIN AN AFFIRMATIVE RECOVERY AGAINST MARINE
ON BEHALF OF THE BONDHOLDERS, HE COULD AT LEAST RAISE MARINE'S IMPROPER
CONDUCT AS A REASON WHY THE CLAIM FOR SERVICES RENDERED SHOULD BE
DENIED.  /11/  FINALLY, PETITIONER MOVED TO COMPEL AN ACCOUNTING BY
MARINE. 

MARINE MOVED TO DISMISS THE INDEPENDENT ACTION AND THE COUNTERCLAIM,
MOVED TO STRIKE THE OBJECTION TO THE CLAIM FOR SERVICES RENDERED, AND
OPPOSED THE MOTION TO COMPEL AN ACCOUNTING.  THE DISTRICT COURT FOUND
THAT PETITIONER HAD NO STANDING IN HIS CAPACITY AS A TRUSTEE IN
REORGANIZATION UNDER CHAPTER X OF THE BANKRUPTCY ACT TO RAISE CLAIMS OF
MISCONDUCT BY AN INDENTURE TRUSTEE ON BEHALF OF DEBENTURE HOLDERS AND
GRANTED BOTH OF MARINE'S MOTIONS TO DISMISS.  VIEWING THE MOTION TO
COMPEL AN ACCOUNTING AS MERELY A THIRD VEHICLE TO RAISE THE SAME CLAIM
ON BEHALF OF THE DEBENTURE HOLDERS, THE DISTRICT COURT DENIED THAT
MOTION ALSO.  ONLY PETITIONER'S OBJECTION TO THE CLAIM FOR SERVICES
RENDERED WAS LEFT STANDING.  /12/  PETITIONER APPEALED THE DISMISSAL OF
HIS CLAIMS AND THE DENIAL OF HIS MOTION FOR AN ACCOUNTING TO THE COURT
OF APPEALS.  MARINE FILED A CROSS-APPEAL FROM THE DENIAL OF ITS MOTION
TO STRIKE PETITIONER'S OBJECTION TO THE CLAIM FOR SERVICES RENDERED. 
THE COURT OF APPEALS AFFIRMED THE DECISION OF THE DISTRICT COURT IN ITS
ENTIRETY. 

        II 

THE ISSUE CONFRONTING US HAS NEVER BEFORE BEEN PRESENTED TO THIS
COURT.  IT IS AN ISSUE THAT HAS ONLY RARELY BEEN PRESENTED TO OTHER
COURTS, AND ON THOSE RARE OCCASIONS, IT HAS CAUSED EVEN THE MOST ABLE
JURISTS TO DISAGREE.  THE FIRST TIME THE ISSUE AROSE WAS IN CLARKE V.
CHASE NATIONAL BANK, 137 F.2D 797 (CA 2 1943).  JUDGE AUGUSTUS HAND
WROTE THE OPINION OF THE COURT HOLDING THAT A TRUSTEE IN REORGANIZATION
DID NOT HAVE STANDING TO SUE A THIRD PARTY ON BEHALF OF BONDHOLDERS. 
JUDGE LEARNED HAND DISAGREED AND DISSENTED.  IT IS THIS DECISION THAT
THE LOWER COURTS FOUND CONTROLLING IN THE INSTANT CASE.  THE CLARKE
CASE IS, IN FACT, THE ONLY OTHER CASE IN WHICH THE ISSUE THAT IS RAISED
HERE WAS SQUARELY PRESENTED.  /13/  THE ISSUE IS A DIFFICULT ONE, AND,
AS WE POINT OUT LATER, IT IS ONE THAT IS CAPABLE OF RESOLUTION BY
EXPLICIT CONGRESSIONAL ACTION.  LACKING A SPECIFIC LEGISLATIVE
STATEMENT ON THIS ISSUE, WE MUST RESOLVE IT AS BEST WE CAN BY EXAMINING
THE NATURE OF CHAPTER X PROCEEDINGS, THE ROLE OF THE TRUSTEE IN
REORGANIZATION, AND THE WAY IN WHICH STANDING TO SUE ON BEHALF OF
DEBENTURE HOLDERS WOULD AFFECT OR CHANGE THAT ROLE. 

CHAPTER X, ENACTED IN 1938, STEMMED FROM A COMPREHENSIVE SEC STUDY
THAT DISCLOSED WIDESPREAD ABUSES UNDER THE THEN-EXISTING PROVISIONS FOR
BUSINESS REORGANIZATIONS.  SEE SECURITIES AND EXCHANGE COMMISSION,
REPORT ON THE STUDY AND INVESTIGATION OF THE WORK, ACTIVITIES, PERSONAL
AND FUNCTIONS OF PROTECTIVE AND REORGANIZATION COMMITTEES (1937-1940). 
THIS SAME STUDY GAVE BIRTH THE FOLLOWING YEAR TO THE TRUST INDENTURE
ACT OF 1939, 53 STAT. 1149, 15 U.S.C. 77AAA ET SEQ., WHICH IS DISCUSSED
INFRA. 

IN ENACTING CHAPTER X, CONGRESS HAD PROTECTION OF PUBLIC INVESTORS
PRIMARILY IN MIND.  SEC V. AMERICAN TRAILER RENTALS CO., 379 U.S. 594
(1965).  "THE AIMS OF CHAPTER X . . . WERE TO AFFORD GREATER PROTECTION
TO CREDITORS AND STOCKHOLDERS BY PROVIDING GREATER JUDICIAL CONTROL
OVER THE ENTIRE PROCEEDINGS AND IMPARTIAL AND EXPERT ADMINISTRATIVE
ASSISTANCE IN CORPORATE REORGANIZATIONS THROUGH APPOINTMENT OF A
DISINTERESTED TRUSTEE AND THE ACTIVE PARTICIPATION OF THE SEC."  ID.,
AT 604.  IN CONTRADISTINCTION TO A BANKRUPTCY PROCEEDING WHERE
LIQUIDATION OF A CORPORATION AND DISTRIBUTION OF ITS ASSETS IS THE
FOAL, A CHAPTER X PROCEEDING IS FOR PURPOSES OF REHABILITATING THE
CORPORATION AND REORGANIZING IT.  IBID.  CHAPTER X PROCEEDINGS ARE NOT
LIMITED TO INSOLVENT CORPORATIONS BUT ARE OPEN TO THOSE CORPORATIONS
THAT ARE SOLVENT IN THE BANKRUPTCY (ASSET-LIABILITY) SENSE BUT ARE
UNABLE TO MEET THEIR OBLIGATIONS AS THEY MATURE.  UNITED STATES V. KEY,
397 U.S. 322, 329 (1970); 11 U.S.C. 530(1). 

THE TRUSTEE IN REORGANIZATION IS THE CENTER OF THE STATUTORY
SCHEME.  H.R. REP. NO. 1409, 75TH CONG., 1ST SESS., 43, 44.  TITLE 11
U.S.C. 567 GIVES THE TRUSTEE BROAD POWERS: 

     "THE TRUSTEE UPON HIS APPOINTMENT AND QUALIFICATION-- 

     "(1) SHALL, IF THE JUDGE SHALL SO DIRECT, FORTHWITH
INVESTIGATE

  THE ACTS, CONDUCT, PROPERTY, LIABILITIES, AND FINANCIAL CONDITION

  OF THE DEBTOR, THE OPERATION OF ITS BUSINESS AND THE DESIRABILITY

  OF THE CONTINUANCE THEREOF, AND ANY OTHER MATTER RELEVANT TO THE

  PROCEEDING OR TO THE FORMULATION OF A PLAN, AND REPORT THEREON TO

THE JUDGE; 

      "(2) MAY, IF THE JUDGE SHALL SO DIRECT, EXAMINE THE DIRECTORS

  AND OFFICERS OF THE DEBTOR AND ANY OTHER WITNESSES CONCERNING THE

  FOREGOING MATTERS OR ANY OF THEM; 

    "(3) SHALL REPORT TO THE JUDGE ANY FACTS ASCERTAINED BY HIM

  PERTAINING TO FRAUD, MISCONDUCT, MISMANAGEMENT AND

  IRREGULARITIES, AND TO ANY CAUSES OF ACTION AVAILABLE TO THE

  ESTATE:

        .          .          .   . 

     "(5) SHALL, AT THE EARLIEST DATE PRACTICABLE, PREPARE AND

  SUBMIT A BRIEF STATEMENT OF HIS INVESTIGATION OF THE PROPERTY,

  LIABILITIES, AND FINANCIAL CONDITION OF THE DEBTOR, THE OPERATION

  OF ITS BUSINESS AND THE DESIRABILITY OF THE CONTINUANCE THEREOF,

  IN SUCH FORM AND MANNER AS THE JUDGE MAY DIRECT, TO THE

  CREDITORS, STOCKHOLDERS, INDENTURE TRUSTEES, THE SECURITIES AND

  EXCHANGE COMMISSION, AND SUCH OTHER PERSONS AS THE JUDGE MAY

  DESIGNATE; AND 

     "(6) SHALL GIVE NOTICE TO THE CREDITORS AND STOCKHOLDERS THAT

  THEY MAY SUBMIT TO HIM SUGGESTIONS FOR THE FORMULATION OF A PLAN,

  OR PROPOSALS IN THE FORM OF PLANS, WITHIN A TIME THEREIN NAMED." 

TITLE 11 U.S.C. 587 EXPANDS THESE POWERS: 

     "WHERE NOT INCONSISTENT WITH THE PROVISIONS OF THIS CHAPTER, A

  TRUSTEE, UPON HIS APPOINTMENT AND QUALIFICATION, SHALL BE VESTED

  WITH THE SAME RIGHTS, BE SUBJECT TO THE SAME DUTIES, AND EXERCISE

  THE SAME POWERS AS A TRUSTEE APPOINTED UNDER SECTION 72 OF THIS

TITLE, AND, IF AUTHORIZED BY THE JUDGE, SHALL HAVE AND MAY

EXERCISE SUCH ADDITIONAL RIGHTS AND POWERS AS A RECEIVER IN

  EQUITY WOULD HAVE IF APPOINTED BY A COURT OF THE UNITED STATES

  FOR THE PROPERTY OF THE DEBTOR." 

THE POWERS GIVEN A TRUSTEE APPOINTED UNDER SEC. 72 ARE SET FORTH IN A
FOOTNOTE.  /14/ 

PETITIONER ARGUES THAT THESE POWERS ARE BROAD ENOUGH TO ENCOMPASS A
SUIT ON BEHALF OF DEBENTURE HOLDERS AGAINST AN INDENTURE TRUSTEE WHO
HAS ACTED IN BAD FAITH, AND WHO HAS, THEREFORE, VIOLATED THE INDENTURE
AND THE TRUST INDENTURE ACT OF 1939, 15 U.S.C. 77AAA ET SEQ. 

AS POINTED OUT ABOVE, THE TRUST INDENTURE ACT WAS PASSED ONE YEAR
AFTER CHAPTER X WAS ENACTED.  PRIOR TO ITS ENACTMENT, INDENTURE
TRUSTEES IMMUNIZED THEMSELVES FROM ANY LIABILITY FOR EITHER DELIBERATE
OR NEGLIGENT MISCONDUCT BY WRITING EXCULPATORY PROVISIONS INTO THE
INDENTURE.  EVEN IN CASES WHERE MISCONDUCT BY THE INDENTURE TRUSTEE WAS
THE PROXIMATE CAUSE OF INJURY TO DEBENTURE HOLDERS, THEY FOUND
THEMSELVES IMPOTENT UNDER THE TERMS OF MOST INDENTURES TO TAKE ACTION
AGAINST THE TRUSTEE.  SEE GENERALLY 2 L.LOSS, SECURITIES REGULATION 719
725 (2D ED. 1961).  THIS PROBLEM AND OTHERS ARE SPECIFICALLY MENTIONED
IN 15 U.S.C. 77BBB AS ESTABLISHING A NECESSITY FOR REGULATION. 

THE REGULATION PROVIDED BY THE ACT TAKES MANY FORMS.  15 U.S.C.
77EEE REQUIRES THAT WHENEVER SECURITIES COVERED BY THE TRUST INDENTURE
ACT ARE ALSO COVERED BY THE REGISTRATION PROVISIONS OF THE SECURITIES
ACT OF 1933, 48 STAT. 74, 15 U.S.C. 77A ET SEQ., CERTAIN INFORMATION
ABOUT THE INDENTURE TRUSTEE AND THE TERMS OF THE INDENTURE MUST BE
INCLUDED IN THE REGISTRATION STATEMENT.  TITLE 15 U.S.C. 77GGG PROVIDES
THAT WHEN SECURITIES ARE NOT REGISTERED UNDER THE 1933 ACT BUT ARE
COVERED BY THE TRUST INDENTURE ACT, THE INDENTURE MUST BE "QUALIFIED"
BY THE SEC BEFORE IT IS LEGAL TO SELL THE SECURITIES.  STANDARDS FOR
ELIGIBILITY AND DISQUALIFICATION OF A TRUSTEE ARE ESTABLISHED BY 15
U.S.C. 77JJJ, AND THE DUTIES AND RESPONSIBILITIES OF A TRUSTEE ARE
ENUMERATED IN 15 U.S.C. 77OOO.  /15/ 

THE INDENTURE GIVING RISE TO THIS LITIGATION WAS QUALIFIED BY THE
SEC PURSUANT TO THE TRUST INDENTURE ACT OF 1939.  BY ALLEGING THAT THE
INDENTURE TRUSTEE NEGLIGENTLY OR INTENTIONALLY FAILED TO PREVENT WEBB &
KNAPP FROM VIOLATING THE TERMS OF THE INDENTURE, PETITIONER CLEARLY
ALLEGES A VIOLATION OF THE 1939 LEGISLATION, 15 U.S.C. 77OOO.  /16/
BUT THE QUESTION REMAINS WHETHER PETITIONER IS A PROPER PARTY TO TAKE
CORRECTIVE ACTION.  /17/ 

PETITIONER URGES THAT THE REORGANIZATION TRUSTEE IS IN A FAR BETTER
POSITION THAN DEBT INVESTORS TO DISCOVER AND TO PROSECUTE CLAIMS BASED
ON THE ALLEGED FAILURE OF AN INDENTURE TRUSTEE TO LIVE UP TO THE
PROVISIONS OF THE INDENTURE.  HE POINTS TO 11 U.S.C. 567, SET FORTH
SUPRA, AND EMPHASIZES THAT NOT ONLY DOES THE REORGANIZATION TRUSTEE
HAVE POSSESSION OF THE RECORDS OF THE DEBTOR, BUT HE ALSO HAS A
STATUTORY DUTY TO INVESTIGATE THE DEBTOR'S AFFAIRS AND TO "REPORT TO
THE JUDGE ANY FACTS ASCERTAINED BY HIM PERTAINING TO FRAUD, MISCONDUCT,
MISMANAGEMENT AND IRREGULARITIES, AND TO ANY CAUSES OF ACTION AVAILABLE
TO THE ESTATE."  REFERENCE IS MADE, TOO, TO 15 U.S.C. 77BBBA)(1), WHICH
STATES THAT ONE OF THE PROBLEMS CONGRESS SAW WITH RESPECT TO MISCONDUCT
BY INDENTURE TRUSTEES WAS THAT "(A) INDIVIDUAL ACTION BY . . .
INVESTORS FOR THE PURPOSE OF PROTECTING AND ENFORCING THEIR RIGHTS IS
RENDERED IMPRACTICABLE BY REASON OF THE DISPROPORTIONATE EXPENSE OF
TAKING SUCH ACTION, AND (B) CONCERTED ACTION BY SUCH INVESTORS IN THEIR
COMMON INTEREST THROUGH REPRESENTATIVES OF THEIR OWN SELECTION IS
IMPEDED BY REASON OF THE WISE DISPERSION OF SUCH INVESTORS THROUGH MANY
STATES, AND BY REASON OF THE FACT THAT INFORMATION AS TO THE NAMES AND
ADDRESSES OF SUCH INVESTORS GENERALLY IS NOT AVAILABLE TO SUCH
INVESTORS."  /18/ 

FINALLY, PETITIONER ASSERTS THAT TO GIVE HIM STANDING TO SUE ON
BEHALF OF DEBENTURE HOLDERS WILL NOT ENCOURAGE VEXATIOUS LITIGATION OR
UNDULY DEPLETE THE RESOURCES OF THE DEBTOR THAT HE HAS BEEN APPOINTED
TO REORGANIZE.  HE SUPPORTS THE FIRST HALF OF THIS PROPOSITION BY
NOTING THAT ANY ACTION HE TAKES IS SUBJECT TO THE SUPERVISION OF THE
DISTRICT COURT AND TO INTERVENTION BY THE SEC.  THE SECOND HALF OF THE
PROPOSITION FINDS SUPPORT IN THE ARGUMENT DISCUSSED ABOVE THAT
PETITIONER ALREADY HAS A DUTY OF INVESTIGATION AND THAT THE MINIMAL
ADDITIONAL BURDEN OF PROSECUTING A LAWSUIT WILL NOT BE GREAT. 

AT FIRST BLUSH, PETITIONER'S THEORY, ADOPTED IN THE OPINION OF THE
DISSENTERS IN THE COURT OF APPEALS, SEEMS REASONABLE.  BUT, THERE ARE
THREE PROBLEMS WITH PETITIONER'S ARGUMENT AHEAD THESE PROBLEMS REQUIRE
THAT HIS POSITION BE REJECTED. 

FIRST, CONGRESS HAS ESTABLISHED AN ELABORATE SYSTEM OF CONTROLS WITH
RESPECT TO INDENTURE TRUSTEES AND REORGANIZATION PROCEEDINGS, AND
NOWHERE IN THE STATUTORY SCHEME IS THERE ANY SUGGESTION THAT THE
TRUSTEE IN REORGANIZATION IS TO ASSUME THE RESPONSIBILITY OF SUING
THIRD PARTIES ON BEHALF OF DEBENTURE HOLDERS.  THE LANGUAGE, IN FACT,
INDICATES THAT CONGRESS HAD NO SUCH INTENT IN MIND.  THE STATUTE, 11
U.S.C. 567(3), GIVES THE TRUSTEE THE RIGHT, AND INDEED IMPOSES THE
DUTY, TO INVESTIGATE FRAUD AND MISCONDUCT AND TO REPORT TO THE JUDGE
THE POTENTIAL CAUSES OF ACTION "AVAILABLE TO THE ESTATE."  EVEN
ASSUMING THAT THIS SECTION IS READ AS IF THE QUOTED WORDS WERE NOT
PRESENT, AND THAT IT AUTHORIZES A TRUSTEE IN REORGANIZATION TO REPORT
WHETHER HE BELIEVES AN INDENTURE TRUSTEE HAS VIOLATED A DUTY TO THIRD
PARTY DEBENTURE HOLDERS, THERE IS NOTHING IN THE SECTION THAT ENABLES
HIM TO COLLECT MONEY NOT OWED TO THE ESTATE.  NOR IS THERE ANYTHING IN
11 U.S.C. 110, SET FORTH IN RELEVANT PART IN FOOTNOTE 14, SUPRA, THAT
GIVES HIM THIS AUTHORITY.  HIS TASK IS SIMPLY TO "COLLECT AND REDUCE TO
MONEY THE PROPERTY OF THE ESTATES FOR WHICH (HE IS TRUSTEE)."  11
U.S.C. 75. 

THE ONLY SUPPORT PETITIONER FINDS IN THE RELEVANT STATUTES IS IN
THAT PORTION OF 11 U.S.C. 587 WHICH GIVES REORGANIZATION TRUSTEES THE
ADDITIONAL RIGHTS THAT A "RECEIVER IN EQUITY WOULD HAVE IF APPOINTED BY
A COURT OF THE UNITED STATES FOR THE PROPERTY OF THE DEBTOR." 
PETITIONER RELIES ON MCCANDLESS V. BURLAUD, 296 U.S. 140 (1935), TO
SUPPORT THE PROPOSITION THAT A RECEIVER IN EQUITY MAY SUE THIRD PARTIES
ON BEHALF OF BONDHOLDERS.  BUT, THE OPINION OF THE COURT BY MR. JUSTICE
CARDOZO CLEARLY EMPHASIZES THAT THE RECEIVER IN THAT CASE WAS SUING ON
BEHALF OF THE CORPORATION, NOT THIRD PARTIES; HE WAS SIMPLY STATING THE
SAME CLAIM THAT THE CORPORATION COULD HAVE MADE HAD IT BROUGHT SUIT
PRIOR TO ENTERING RECEIVERSHIP.  /19/  THE DEBTOR CORPORATION MAKES NO
SUCH CLAIM IN THIS CASE.  SEE GENERALLY 2 R.CLARK, LAW AND PRACTICE OR
RECEIVERS 362, AT 619 (3D ED. 1959). 

THIS BRINGS US TO THE SECOND PROBLEM WITH PETITIONER'S ARGUMENT. 
NOWHERE DOES PETITIONER ARGUE THAT WEBB & KNAPP COULD MAKE ANY CLAIM
AGAINST MARINE.  INDEED, THE CONSPICUOUS SILENCE ON THIS POINT IS A
TACIT ADMISSION THAT NO SUCH CLAIM COULD BE MADE.  /20/  ASSUMING THAT
PETITIONER'S ALLEGATIONS OF MISCONDUCT ON THE PART OF THE INDENTURE
TRUSTEE ARE TRUE, PETITIONER HAS AT MOST DESCRIBED A SITUATION WHERE
WEBB & KNAPP AND MARINE WERE IN PARI DELICTO.  WHATEVER DAMAGE THE
DEBENTURE HOLDERS SUFFERED, UNDER PETITIONER'S THEORY WEBB & KNAPP IS
AS MUCH AT FAULT AS MARINE, IF NOT MORE SO.  A QUESTION WOULD ARISE,
THEREFORE, WHETHER MARINE WOULD BE ENTITLED TO BE SUBROGATED TO THE
CLAIMS OF THE DEBENTURE HOLDERS.  THE COURT OF APPEALS THOUGHT THAT
SUBROGATION WOULD BE REQUIRED, 439 F.2D, AT 122. 

IF THE COURT OF APPEALS IS CORRECT, IT IS THEN DIFFICULT TO SEE WHAT
ADVANTAGE THERE IS IN GIVING PETITIONER STANDING TO SUE, FOR AS CHIEF
JUDGE FRIENDLY NOTED IN HIS OPINION FOR THE COURT BELOW: 

     "IT IS NECESSARY IN THE FIRST INSTANCE TO CONSIDER WHAT EFFECT

  A RECOVERY BY THE CHAPTER X TRUSTEE WOULD HAVE ON THE

  REORGANIZATION.  ON A SUPERFICIAL VIEW THIS MIGHT SEEM

  SUBSTANTIAL-- IF, FOR EXAMPLE, THE CHAPTER X TRUSTEE WERE TO

  ACHIEVE A COMPLETE RECOVERY, THE DEBENTURE HOLDERS WOULD BE PAID

  OFF AND IT MIGHT SEEM THERE WOULD BE THAT MUCH MORE FOR THE OTHER

  CREDITORS AND THE STOCKHOLDERS.  BUT THIS PLEASANT PROSPECT

SPEEDILY EVAPORATES WHEN THE LAW OF SUBROGATION IS BROUGHT INTO

  PLAY.  AS A RESULT OF SUBROGATION, MARINE WOULD SIMPLY BE

  SUBSTITUTED FOR THE DEBENTURE HOLDERS AS THE CLAIMANT.  CF. ALI,

  RESTATEMENT OF SECURITY SEC. 141 (1941).  IF THE CHAPTER X

  TRUSTEE RECOVERED JUDGMENT IN A LESSER AMOUNT, THE CLAIM OF THE

  DEBENTURE HOLDERS WOULD STILL BE PROVABLE IN FULL, WITH THE

  DIVISION OF THE PROCEEDS BETWEEN THEM AND MARINE DEPENDENT UPON

  THE RESULTS OF THE REORGANIZATION, AND OTHER CREDITORS OR

  STOCKHOLDERS WOULD NOT BE AFFECTED."  439 F.2D, AT 122. 

EVEN IF THE COURT OF APPEALS IS INCORRECT IN ITS VIEW OF THE PROPRIETY
OF SUBROGATION UNDER THE FACTS OF THIS CASE, THE FACT REMAINS THAT IN
EVERY REORGANIZATION THERE IS GOING TO BE A QUESTION OF HOW MUCH THE
TRUSTEE IN REORGANIZATION SHOULD BE PERMITTED TO RECOVER ON BEHALF OF
THE DEBENTURE HOLDERS.  THE ANSWER IS, OF COURSE, WHATEVER HE CANNOT
RECOUP FROM THE CORPORATION.  ONCE THIS IS RECOGNIZED, THE WISDOM OF
JUDGE AUGUSTUS HAND IN CLARKE V. CHASE NATIONAL BANK, 137 F.2D, AT 800,
BECOMES READILY APPARENT: 

"EACH CREDITOR, INCLUDING THE DEBENTURE-HOLDERS, CAN PROVE THE FULL
AMOUNT OF HIS CLAIM, AND ONLY TO THE EXTENT THAT A DEBENTURE-HOLDER
FAILS TO SATISFY IT FROM THE BANKRUPTCY ESTATE WILL HE SUFFER A LOSS
WHICH HE CAN ASSERT AGAINST THE DEFENDANT THROUGH ITS FAILURE TO
ENFORCE THE NEGATIVE CONVENANTS."  IN OTHER WORDS, DEBENTURE HOLDERS
WILL NOT BE ABLE TO RECOVER DAMAGES FROM THE INDENTURE TRUSTEE UNTIL
THE REORGANIZATION IS FAR ENOUGH ALONG SO THAT A REASONABLE
APPROXIMATION CAN BE MADE AS TO THE EXTENT OF THEIR LOSSES, IF ANY.  IT
IS DIFFICULT TO SEE PRECISELY WHY IT IS AT THAT POINT THAT THE TRUSTEE
IN REORGANIZATION SHOULD REPRESENT THE INTERESTS OF THE DEBENTURE
HOLDERS, WHO ARE CAPABLE OF DECIDING FOR THEMSELVES WHETHER OR NOT IT
IS WORTHWHILE TO SEEK TO RECOUP WHATEVER LOSSES THEY MAY HAVE SUFFERED
BY AN ACTION AGAINST THE INDENTURE TRUSTEE.  PETITIONER APPEARS TO
CONCEDE THAT ANY SUIT BY DEBENTURE HOLDERS WOULD NOT AFFECT THE
INTERESTS OF OTHER PARTIES TO THE REORGANIZATION, ASSUMING THAT THE
COURT OF APPEALS IS CORRECT ON THE SUBROGATION POINT.  IT WOULD SEEM
THEREFORE, THAT THE DEBENTURE HOLDERS, THE PERSONS TRULY AFFECTED BY
THE SUIT AGAINST MARINE, SHOULD MAKE THEIR OWN ASSESSMENT OF THE
RESPECTIVE ADVANTAGES AND DISADVANTAGES, NOT ONLY LF LITIGATION, BUT OF
VARIOUS THEORIES OF LITIGATION. 

THIS BRINGS US TO THE THIRD PROBLEM WITH PETITIONER'S ARGUMENT:
I.D., A SUIT BY HIM ON BEHALF OF DEBENTURE HOLDERS MAY BE INCONSISTENT
WITH ANY INDEPENDENT ACTIONS THAT THEY MIGHT BRING THEMSELVES. 
PETITIONER AND THE SEC MAKE VERY PLAIN THEIR POSITION THAT A SUIT BY
THE TRUSTEE IN REORGANIZATION DOES NOT PRE-EMPT SUITS BY INDIVIDUAL
DEBENTURE HOLDERS.  THEY MAINTAIN, HOWEVER, THAT IT WOULD BE UNLIKELY
THAT SUCH SUITS WOULD BE BROUGHT SINCE THE DEBENTURE HOLDERS COULD
REASONABLY EXPECT THAT THE TRUSTEE WOULD VIGOROUSLY PROSECUTE THE
CLAIMS OF ALL DEBT INVESTORS.  BUT, INDEPENDENT ACTIONS ARE STILL
LIKELY BECAUSE IT IS EXTREMELY DOUBTFUL THAT THE TRUSTEE AND ALL
DEBENTURE HOLDERS WOULD AGREE ON THE AMOUNT OF DAMAGES TO SEEK, OR EVEN
ON THE THEORY ON WHICH TO SUE.  /21/  MOREOVER, IF THE INDENTURE
TRUSTEE WINS THE SUIT BROUGHT BY THE TRUSTEE IN REORGANIZATION, UNLESS
THE DEBENTURE HOLDERS ARE BOUND BY THAT VICTORY, THE PROLIFERATION OF
LITIGATION THAT PETITIONER SEEKS TO AVOID WOULD THEN ENSUE, FINALLY, A
QUESTION WOULD ARISE AS TO WHO WAS BOUND BY ANY SETTLEMENT.  /22/ 
RULE 23 OF THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH PROVIDES FOR
CLASS ACTIONS, AVOIDS SOME OF THESE DIFFICULTIES.  IT IS SURELY A
POWERFUL REMEDY AND ONE THAT IS AVAILABLE TO ALL DEBENTURE HOLDERS. 
/23/  SOME OF THE FACTORS THAT FORMERLY DETERRED SUCH ACTIONS HAVE BEEN
CHANGED BY THE TRUST INDENTURE ACT OF 1939.  TITLE 15 U.S.C. 77LLL, FOR
EXAMPLE, NOW REQUIRES THAT THE DEBTOR CORPORATION MAINTAIN LISTS OF
DEBENTURE HOLDERS THAT IT MUST TURN OVER TO THE INDENTURE TRUSTEES AT
REGULAR INTERVALS.  SUCH LISTS ARE AVAILABLE TO THE INDIVIDUAL
DEBENTURE HOLDERS UPON REQUEST.  DEBENTURE HOLDERS WOULD ALSO BE ABLE
TO TAKE ADVANTAGE OF ANY INFORMATION OBTAINED BY THE TRUSTEE IN
REORGANIZATION AS A RESULT OF THE INVESTIGATION WHICH THE STATUTE
REQUIRES THAT HE MAKE.  IN ADDITION, PETITIONER HIMSELF MAINTAINS THAT
COUNSEL FEES WOULD BE RECOVERABLE IF THE ACTION WAS SUCCESSFUL.  BRIEF
FOR PETITIONER 20; CF. 15 U.S.C. 77NNN. 

III 

FOR THE REASONS DISCUSSED ABOVE WE CONCLUDE THAT PETITIONER DOES NOT
HAVE STANDING TO SUE AN INDENTURE TRUSTEE ON BEHALF OF DEBENTURE
HOLDERS.  THIS DOES NOT MEAN THAT IT WOULD BE UNWISE TO CONFER SUCH
STANDING ON TRUSTEES IN REORGANIZATION.  IT SIMPLY SIGNIFIES THAT
CONGRESS HAS NOT YET INDICATED EVEN A SCINTILLA OF AN INTENTION TO DO
SO, AND THAT SUCH A POLICY DECISION MUST BE LEFT TO CONGRESS AND NOT TO
THE JUDICIARY. 

CONGRESS MIGHT WELL DECIDE THAT REORGANIZATIONS HAVE NOT FARED BADLY
IN THE 34 YEARS SINCE CHAPTER X WAS ENACTED AND THAT THE STATUS QUO IS
PREFERABLE TO INVITING NEW PROBLEMS BY MAKING CHANGES IN THE SYSTEM. 
OR, CONGRESS COULD DETERMINE THAT THE TRUSTEE IN A REORGANIZATION WAS
SO WELL SITUATED FOR BRINGING SUITS AGAINST INDENTURE TRUSTEES THAT HE
SHOULD BE PERMITTED TO DO SO.  IN THIS EVENT, CONGRESS MIGHT ALSO
DETERMINE THAT THE TRUSTEE'S ACTION WAS EXCLUSIVE, OR THAT IT SHOULD BE
BROUGHT AS A CLASS ACTION ON BEHALF OF ALL DEBENTURE HOLDERS, OR
PERHAPS EVEN THAT THE DEBENTURE HOLDERS SHOULD HAVE THE OPTION OF SUING
ON THEIR OWN OR HAVING THE TRUSTEE SUE ON THEIR BEHALF.  ANY NUMBER OF
ALTERNATIVES ARE AVAILABLE.  CONGRESS WOULD ALSO BE ABLE TO ANSWER
QUESTIONS REGARDING SUBROGATION OR TIMING OF LAW SUITS BEFORE THESE
QUESTIONS ARISE IN THE CONTEXT OF LITIGATION.  WHATEVER THE DECISION,
IT IS ONE THAT ONLY CONGRESS CAN MAKE. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS

       AFFIRMED. 

/1/  THE DISTRICT COURT DELIVERED THREE SEPARATE OPINIONS IN THIS
CASE.  THEY ARE UNREPORTED, BUT ARE INCLUDED IN THE APPENDIX PREPARED
BY THE PARTIES AT 58A-70A.  THE COURT OF APPEALS HEARD THE CASE EN BANC
AFTER A PANEL OF THREE JUDGES DETERMINED THAT IT WAS INCLINED TO
OVERRULE THE CASE ON WHICH THE DISTRICT COURT HAD PLACED ALMOST
EXCLUSIVE RELIANCE.  439 F.2D 118. 

/2/  THOSE COMPANIES IN THE AFFILIATED GROUP INCLUDE ANY CORPORATION
THAT WAS ENTITLED TO BE INCLUDED IN A CONSOLIDATED TAX RETURN OF WEBB &
KNAPP.  SEE 26 U.S.C. 1502.  SECTION 1.1 OF THE INDENTURE GAVE WEBB &
KNAPP AUTHORITY TO CONSIDER OTHER COMPANIES AS AFFILIATES IF IT CHOSE
TO DO SO. 

/3/  INDENTURE OF JUNE 1, 1954, WEBB & KNAPP, INC., TO THE MARINE
MIDLAND TRUST COMPANY OF NEW YORK SEC. 3.6 (HEREINAFTER REFERRED TO AS
INDENTURE). 

/4/  INDENTURE SEC. 3.11. 

/5/  INDENTURE SEC. 10.1(A).  THIS WAS ALSO A STATUTORY DUTY.  SEE 15
U.S.C. 77OOO. 

/6/  INDENTURE SEC. 10.1(D). 

/7/  WEBB & KNAPP SHOWED A LOSS FOR TAX PURPOSES EACH YEAR, ALTHOUGH
THE COMPANY DID SHOW A GAIN ON ITS BOOKS FOR 1961 ATTRIBUTABLE TO A
WRITE-UP OF PROPERTY OWNED BY A WHOLLY OWNED SUBSIDIARY OF A COMPANY IN
WHICH WEBB & KNAPP HELD 50% OF THE STOCK. 

/8/  THE SEC HAS SUPPORTED PETITIONER THROUGHOUT THIS LITIGATION. 
THE AGENCY IS "AN UNNAMED RESPONDENT BEFORE THIS COURT."  SEE
PROTECTIVE COMMITTEE V. ANDERSON, 390 U.S. 414, 420 N. 3 (1968).  WHEN
REFERRING TO ARGUMENTS MADE BY PETITIONER, THIS OPINION ASSUMES, UNLESS
OTHERWISE STATED, THAT THE SEC HAS MADE THE SAME ARGUMENTS. 

/9/  THE DIFFERENCE BETWEEN THIS AMOUNT AND THE AMOUNT OF THE
DEBENTURES ORIGINALLY ISSUED REPRESENTS THE AMOUNT OF THE PRINCIPAL
THAT WEBB & KNAPP HAD REPAID. 

/10/  THESE ARE MERELY ALLEGATIONS OF PETITIONER, NOT FINDINGS OF THE
LOWER COURTS.  BECAUSE THE DISTRICT COURT AND THE COURT OF APPEALS HELD
THAT PETITIONER HAD NO STANDING, THEY HAD NO OCCASION TO CONSIDER THE
VALIDITY OF THE ALLEGATIONS. 

/11/ IN ITS CAPACITY AS INDENTURE TRUSTEE, MARINE ALSO FILED A CLAIM
ON BEHALF OF ALL THE DEBENTURE HOLDERS FOR THE UNPAID PRINCIPAL ON THE
DEBENTURES. 

/12/  THIS OBJECTION DIFFERS FROM THE OTHER CLAIMS IN ONE RESPECT:
I.E., IT IS AN ATTEMPT TO PRESERVE THE REMAINING ASSETS OF THE DEBTOR
FOR ALL CREDITORS OTHER THAN MARINE, WHEREAS THE OTHER CLAIMS REPRESENT
AN ATTEMPT BY THE PETITIONER TO INCREASE THE ASSETS OF THE DEBTOR FOR
THE BENEFIT OF A SPECIFIC CLASS OF CREDITORS, THE DEBENTURE HOLDERS. 
ALTHOUGH MARINE APPEALED THE RULING OF THE DISTRICT COURT DENYING ITS
MOTION TO STRIKE THE OBJECTION, IT DID NOT SEEK REVIEW HERE OF THE
DECISION OF THE COURT OF APPEALS AFFIRMING THE DISTRICT COURT ON THIS
ISSUE.  THIS ISSUE IS, THEREFORE, NOT BEFORE US, AND WE OFFER NO
OPINION ON THE PROPRIETY OF THE LOWER COURTS' RULING. 

/13/  PETITIONER AND THE TWO DISSENTING JUDGES IN THE COURT OF
APPEALS ARGUED THAT THE ISSUE WAS PRESENTED IN PRUDENCE-BONDS CORP. V.
STATE STREET TRUST CO., 202 F.2D 555 (CA 2), CERT. DENIED, 346 U.S. 835
(1953), AND THAT THE DECISION OF THE COURT IN THAT CASE BY JUDGE
LEARNED HAND OVERRULED CLARKE V. CHASE NATIONAL BANK, 137 F.2D 797 (CA
2 1943), SUB SILENTIO.  THEY ALSO ARGUE THAT THE ISSUE WAS PRESENTED
AND DECIDED CONTRARY TO CLARKE IN IN RE SOLAR MANUFACTURING CORP., 200
F.2D 327 (CA 3 1952), CERT. DENIED SUB NOM. MARINE MIDLAND TRUST CO. V.
MCGIRL, 345 U.S. 940 (1953).  BUT, THE MAJORITY OF THE COURT OF APPEALS
FOUND THESE CASES TO BE DISTINGUISHABLE, AND MARINE URGES THAT THE
MAJORITY WAS CORRECT.  WE DO NOT INTEND TO BECOME ENMESHED IN THIS
CONTROVERSY AND MERELY INDICATE ITS EXISTENCE. 

/14/  TITLE 11 U.S.C. 110 GIVES THE TRUSTEE TITLE TO THE FOLLOWING
"PROPERTY": 

"(A) THE TRUSTEE OF THE ESTATE OF A BANKRUPT AND HIS SUCCESSOR OR
SUCCESSORS, IF ANY, UPON HIS OR THEIR APPOINTMENT AND QUALIFICATION,
SHALL IN TURN BE VESTED BY OPERATION OF LAW WITH THE TITLE OF THE
BANKRUPT AS OF THE DATE OF FILING OF THE PETITION INITIATING A
PROCEEDING UNDER THIS TITLE . . . TO ALL OF THE FOLLOWING KINDS OF
PROPERTY WHEREVER LOCATED (1) DOCUMENTS RELATING TO HIS PROPERTY; (2)
INTERESTS IN PATENTS, PATENT RIGHTS, COPYRIGHTS, AND TRADE-MARKS, AND
IN APPLICATIONS THEREFOR . . . (3) POWERS WHICH HE MIGHT HAVE EXERCISED
FOR HIS OWN BENEFIT, BUT NOT THOSE WHICH HE MIGHT HAVE EXERCISED SOLELY
FOR SOME OTHER PERSON; (4) PROPERTY TRANSFERRED BY HIM IN FRAUD OF HIS
CREDITORS; (5) PROPERTY, INCLUDING RIGHTS OF ACTION, WHICH PRIOR TO THE
FILING OF THE PETITION HE COULD BY ANY MEANS HAVE TRANSFERRED OR WHICH
MIGHT HAVE BEEN LEVIED UPON AND SOLD UNDER JUDICIAL PROCESS AGAINST
HIM, OR OTHERWISE SEIZED, IMPOUNDED, OR SEQUESTERED . . . (6) RIGHTS OF
ACTION ARISING UPON CONTRACTS, OR USURY, OR THE UNLAWFUL TAKING OR
DETENTION OF OR INJURY TO HIS PROPERTY; (7) CONTINGENT REMAINDERS,
EXECUTORY DEVISES AND LIMITATIONS, RIGHTS OF ENTRY FOR CONDITION
BROKEN, RIGHTS OR POSSIBILITIES OF REVERTER, AND LIKE INTERESTS IN REAL
PROPERTY, WHICH WERE NONASSIGNABLE PRIOR TO BANKRUPTCY AND WHICH,
WITHIN SIX MONTHS THEREAFTER, BECOME ASSIGNABLE INTERESTS OR ESTATES OR
GIVE RISE TO POWERS IN THE BANKRUPT TO ACQUIRE ASSIGNABLE INTERESTS OR
ESTATES; AND (8) PROPERTY HELD BY AN ASSIGNEE FOR THE BENEFIT OF
CREDITORS APPOINTED UNDER AN ASSIGNMENT WHICH CONSTITUTED AN ACT OF
BANKRUPTCY, WHICH PROPERTY SHALL, FOR THE PURPOSES OF THIS TITLE, BE
DEEMED TO BE HELD BY THE ASSIGNEE AS THE AGENT OF THE BANKRUPT AND
SHALL BE SUBJECT TO THE SUMMARY JURISDICTION OF THE COURT." 

/15/  THE SEC IS GIVEN GENERAL SUPERVISORY POWERS OVER INDENTURES IN
VARIOUS SECTIONS OF THE TRUST INDENTURE ACT.  SEE, E.G., 15 U.S.C.
77DDDC), (D), (E); 77EEEA), (C); 77GGG; 77SSS; 77TTT; 77UUU.  IN
ADDITION 15 U.S.C. 77HHH PROVIDES THAT THE SEC MAY ORDER CONSOLIDATION
OF REPORTS OR CERTIFICATES FILED UNDER THE TRUST INDENTURE ACT WITH
INFORMATION OR DOCUMENTS FILED UNDER THE SECURITIES ACT OF 1933, 48
STAT. 74, 15 U.S.C. 77A ET SEQ., AND THE SECURITIES EXCHANGE ACT OF
1934, 48 STAT. 881, 15 U.S.C. 78A ET SEQ., THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, 49 STAT. 838, 15 U.S.C. 79 ET SEQ. 

/16/  THE PROVISIONS OF THE INDENTURE DISCUSSED PREVIOUSLY COMPLY
WITH THE REQUIREMENTS OF 15 U.S.C. 77OOO.  WHILE THE INDENTURE TRUSTEE
IS NOT PERMITTED BY THE STATUTE TO EXCULPATE HIMSELF FROM LIABILITY FOR
NONCOMPLIANCE WITH THE INDENTURE, THE INDENTURE TRUSTEE MAY RELY IN
GOOD FAITH ON CERTIFICATES OR REPORTS FILED PURSUANT TO THE INDENTURE
AND IN COMPLIANCE WITH THE PROVISIONS THEREOF. 

/17/  WE ASSUME, ARGUENDO, THAT VIOLATION OF 15 U.S.C. 77OOO WOULD
GIVE RISE TO A CAUSE OF ACTION AGAINST AN INDENTURE TRUSTEE BY
DEBENTURE HOLDERS.  IF THERE IS A CAUSE OF ACTION, 15 U.S.C. 77VVV
WOULD SEEM TO GIVE FEDERAL COURTS JURISDICTION.  THE COURT OF APPEALS
INFERRED THAT SUCH SUITS WOULD BE PROPER, 439 F.2D, AT 123 N. 5, BUT
DID NOT DECIDE THE POINT.  SINCE WE CONCLUDE THAT EVEN IF SUCH SUITS
MAY BE BROUGHT, PETITIONER LACKS STANDING TO BRING THEM, WE DO NOT
DECIDE THE QUESTION. 

/18/  IT SHOULD BE NOTED THAT THE TRUST INDENTURE ACT OF 1939 WAS
ENACTED ON AUGUST 3, 1939.  THE FEDERAL RULES OF CIVIL PROCEDURE WERE
NOT EVEN ONE YEAR OLD.  THEY WERE ADOPTED BY THIS COURT ON DECEMBER 20,
1937, AND THEY BECAME EFFECTIVE ON SEPTEMBER 16, 1938, 308 U.S. 647. 
THE CLASS ACTION WAS A COMPARATIVELY RECENT PHENOMENON WITH RESPECT TO
DAMAGE ACTIONS AND IT WAS NOT TREMENDOUSLY HELPFUL IN THE EARLY DAYS. 
SEE, E.G., MOORE, FEDERAL RULES OF CIVIL PROCEDURE:  SOME PROBLEMS
RAISED BY THE PRELIMINARY DRAFT, 25 GEO.L.J. 551, 570-576 (1937);
KALVEN & ROSENFIELD, THE CONTEMPORARY FUNCTION OF THE CLASS SUIT, 8
U.CHI.L.REV.  684 (1941).  IT COULD NOT BE SAID THAT THE CLASS ACTION
WAS AN EFFICACIOUS REMEDY IN 1939. 

/19/  THIS POINT IS ESPECIALLY CLEAR IN LIGHT OF THE FACT THAT THE
COURT SPLIT 5-4 ON WHETHER OLD DOMINION COPPER CO. V. LEWISOHN, 210
U.S. 206 (1908) (HOLMES, J.), WAS BINDING IN MCCANDLESS V. FURLAUD. 
THE ISSUE IN THE CONTROVERSIAL OLD DOMINION CASE WAS WHETHER A
CORPORATION HAD A CAUSE OF ACTION AGAINST PROMOTER-DIRECTOR
STOCKHOLDERS. 

/20/  IF PETITIONER COULD SUE ON BEHALF OF WEBB & KNAPP, THE STATUTE
THAT REQUIRES THAT HE REPORT POSSIBLE CAUSES OF ACTION TO THE COURT
WOULD REQUIRE MENTION OF THIS CAUSE OF ACTION.  MOREOVER, PETITIONER
HAS BROUGHT EVERY CONCEIVABLE CLAIM THAT IS AVAILABLE TO HIM AS
TRUSTEE.  NOT ONLY HAS HE BROUGHT THIS ACTION AGAINST THE INDENTURE
TRUSTEE, BUT HE HAS ALSO SUED FORMER OFFICERS OF WEBB & KNAPP CHARGING
THEM WITH WASTE.  BRIEF FOR SEC 5-6.  CERTAIN SETTLEMENTS HAVE
APPARENTLY BEEN MADE IN SOME OF THESE OTHER ACTIONS.  BRIEF FOR
RESPONDENT 45 N. 18. 

/21/  THREE PRIVATE ACTIONS HAVE BEEN BROUGHT BY DEBENTURE HOLDERS
AGAINST MARINE, ONE IN FEDERAL COURT AND TWO IN STATE COURT.  SEE BRIEF
FOR PETITIONER 21 N. 9.  THESE SUITS MAKE THE SAME CLAIMS MADE BY THE
PETITIONER IN THE INSTANT CASE, AS WELL AS OTHERS WHICH HE HAS NOT
MADE, INCLUDING ALLEGED VIOLATIONS OF THE SECURITIES LAWS. 

THE TRUSTEE MAY WELL HAVE INTERESTS THAT DIFFER FROM THOSE OF THE
BONDHOLDERS.  FOR EXAMPLE, PETITIONER HAS SUED NOT ONLY MARINE, BUT
ALSO THE FORMER OFFICERS OF WEBB & KNAPP.  SEE N. 20, SUPRA.  IN
SETTLING THE SUITS BROUGHT AGAINST THE OFFICERS, PETITIONER MAY WELL
TAKE POSITIONS THAT CONFLICT WITH THOSE HE WOULD TAKE IN A SUIT AGAINST
MARINE.  THE CONFLICT MAY AT TIMES BE UNFAVORABLE TO THE DEBENTURE
HOLDERS.  ONE ANSWER OBVIOUSLY IS THAT THE DISTRICT COURT AND THE SEC
CAN TAKE ACTION TO PREVENT ANY SUCH CONFLICT FROM DEVELOPING, E.G., BY
DENYING THE TRUSTEE IN REORGANIZATION THE RIGHT TO SUE ON BEHALF OF
DEBENTURE HOLDERS IN SELECTED CASES.  THE PROBLEM WITH THIS ANSWER IS
THAT THE CONFLICT MAY NOT APPEAR UNTIL THE SUIT IS WELL UNDER WAY.  IN
SUCH A CASE THE DEBENTURE HOLDERS MIGHT REGRET PLACING THEIR CONFIDENCE
IN THE TRUSTEE. 

/22/  CHAPTER X, 11 U.S.C. 616(2), PROVIDES THAT A PLAN FOR
REORGANIZATION "MAY DEAL WITH ALL OF ANY PART OF THE PROPERTY OF THE
DEBTOR."  IT ALSO PROVIDES THAT THE PLAN "MAY INCLUDE PROVISIONS FOR
THE SETTLEMENT OF CLAIMS BELONGING TO THE DEBTOR OR TO THE ESTATE."  11
U.S.C. 616(13).  DESPITE THESE PROVISIONS, PETITIONER URGES, IN EFFECT,
THAT HE CAN SETTLE A SUIT, ON BEHALF OF BONDHOLDERS WITHOUT BINDING
THEM TO THE SETTLEMENT.  REPLY BRIEF FOR PETITIONER 7-8.  BUT, AS
POINTED OUT IN THE TEXT, SUPRA, PETITIONER ONLY HAS AUTHORITY TO PURSUE
CLAIMS BELONGING TO THE ESTATE.  PETITIONER IS THUS CAUGHT ON THE HORNS
OF A DILEMMA:  EITHER HE IS INCORRECT IN ASSERTING THAT THE STATUTORY
DEFINITION OF DUTIES SHOULD BE READ SO BROADLY AS TO ALLOW A TRUSTEE IN
REORGANIZATION TO TREAT CLAIMS BY DEBENTURE HOLDERS AGAINST THIRD
PARTIES AS SUFFICIENTLY RELATED TO THE ESTATE THAT THE TRUSTEE MAY SUE
ON BEHALF OF THE DEBENTURE HOLDERS; OR HE IS CORRECT, AND SEC. 616
WOULD APPEAR TO PERMIT HIM TO BIND THE DEBENTURE HOLDERS TO A
SETTLEMENT.  EVEN IF PETITIONER CAN HAVE IT BOTH WAYS, HIS INABILITY TO
BIND THE PERSONS ON WHOSE BEHALF HE SUES UNDERCUTS THE UTILITY OF HIS
SUING.  BECAUSE THE DEBENTURE HOLDERS COULD BRING A CLASS ACTION AND
BIND ALL MEMBERS OF THE CLASS, THEY CAN MAKE A BINDING SETTLEMENT AND
AVOID LENGTHY AND EXPENSIVE LITIGATION.  PETITIONER CANNOT MAKE SUCH A
SETTLEMENT.  MOREOVER, IF A REORGANIZATION TRUSTEE DOES SETTLE A SUIT
THAT HE HAS BROUGHT ON BEHALF OF DEBENTURE HOLDERS, HE MAY FIND THAT
RATHER THAN SERVING AS THEIR REPRESENTATIVE, HE IS FORCED TO OPPOSE
THEIR INTERESTS WHEN THEY BRING INDEPENDENT ACTIONS TO RECOVER MORE
THAN THE SETTLEMENT FIGURE.  IN THIS EVENT, THE REORGANIZATION TRUSTEE
WOULD BE FORCED TO JUSTIFY HIS SETTLEMENT, AND HE WOULD THEORETICALLY
JOIN THE INDENTURE TRUSTEE IN OPPOSING THE ACTION OF THE DEBENTURE
HOLDERS.  HE WOULD FIND HIMSELF ON BOTH SIDES OF THE SAME TRANSACTION. 
/23/  AGAIN WE ASSUME, ARGUENDO, THAT THE TRUST INDENTURE ACT GIVES
A RIGHT OF ACTION TO DEBENTURE HOLDERS UNDER THESE CIRCUMSTANCES. 
OBVIOUSLY, IF THE DEBENTURE HOLDERS THEMSELVES HAVE NO CAUSE OF ACTION,
THEIR SURROGATE IS IN NO BETTER POSITION. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, AND MR. JUSTICE BLACKMUN CONCUR, DISSENTING.     WITH ALL
RESPECT, TODAY'S DECISION REFLECTS A MISUNDERSTANDING OF THE IMPORTANT
ROLE WHICH A REORGANIZATION TRUSTEE UNDER CHAPTER X OF THE BANKRUPTCY
ACT, 11 U.S.C. 567, IS SUPPOSED TO PERFORM.  THOUGH PRIOR TO CHAPTER X
THE DEBTOR HAD USUALLY REMAINED IN POSSESSION, CHAPTER X EFFECTED A
BASIC CHANGE BY PUTTING A DISINTERESTED TRUSTEE IN CHARGE.  H.R. REP.
NO. 1409, 75TH CONG., 1ST SESS., 43-44.  WORKING UNDER THE DIRECTION OF
THE COURT, THE REORGANIZATION TRUSTEE WAS TO MAKE THE NECESSARY
INVESTIGATIONS CONCERNING THE DEBTOR, THE OPERATION OF ITS BUSINESS,
AND THE DESIRABILITY OF ITS CONTINUANCE "AND ANY OTHER MATTER RELEVANT
TO THE PROCEEDING OR TO THE FORMULATION OF A PLAN, AND REPORT THEREON
TO THE JUDGE."  11 U.S.C. 567.  THE REORGANIZATION TRUSTEE IS, INDEED,
CHARGED BY 11 U.S.C. 569 WITH THE RESPONSIBILITY OF FORMULATING A
PLAN.  /1/ 

A CHAPTER X PLAN DOES NOT LOOK FORWARD TO A DISCHARGE OF THE DEBTOR
AS DOES ORDINARY BANKRUPTCY, BUT RATHER TO AN OVERHAUL OF ITS CAPITAL
STRUCTURE, A SIMPLIFICATION OF IT, IF NEED BE, AND THE DETERMINATION OF
THE FAIR SHARE WHICH EACH CLASS OF OLD CREDITORS SHALL RECEIVE AND WHAT
PARTICIPATION, IF ANY, THE OLD STOCKHOLDERS MAY BE GRANTED.  THE TEST
WHICH THE COURT MUST ULTIMATELY APPLY UNDER CHAPTER X IS WHETHER A PLAN
IS "FAIR AND EQUITABLE, AND FEASIBLE."  11 U.S.C. 574.  THE TEST OF
"FAIR AND EQUITABLE" DERIVES FROM THE OLD EQUITY RECEIVERSHIPS AND WAS
ADOPTED IN FORMER SEC. 77B OF THE BANKRUPTCY ACT AND UNDER CHAPTER X. 
/2/  AS STATED IN THE HOUSE REPORT "THE (REORGANIZATION) TRUSTEE IS
REQUIRED TO ASSEMBLE THE SALIENT FACTS NECESSARY FOR A DETERMINATION OF
THE FAIRNESS AND EQUITY OF A PLAN OF REORGANIZATION."  H.R. REP. NO.
1409, 75TH CONG., 1ST SESS., 43. 

THE REQUIREMENTS OF "FAIR AND EQUITABLE," WHICH THE COURT MUST
APPLY, ENTAIL THE APPLICATION OF THE ABSOLUTE PRIORITY RULE WHICH WE
DISCUSSED AT LENGTH IN CASE V. LOS ANGELES LUMBER CO., 308 U.S. 106,
AND WHICH WAS FOLLOWED IN CONSOLIDATED ROCK CO. V. DU BOIS, 312 U.S.
510.  IT NOT ONLY GIVES CREDITORS FULL PRIORITY OVER STOCKHOLDERS, BUT
PROTECTS SENIOR CLASSES OF CREDITORS AGAINST THE CLAIM THAT "JUNIOR
INTERESTS WERE IMPROPERLY PERMITTED TO PARTICIPATE IN A PLAN OR WERE
TOO LIBERALLY TREATED THEREIN."  308 U.S.,AT 118.  UNSECURED CREDITORS
NEED NOT BE PAID IN CASE AS A CONDITION OF STOCKHOLDERS RETAINING AN
INTEREST IN THE REORGANIZED COMPANY, FOR THEY MAY BE PROTECTED BY THE
ISSUANCE "'ON EQUITABLE TERMS, OF INCOME BONDS OR PREFERRED STOCK.'" 

AND, AS WE SAID IN THE DU BOIS CASE: 

"IF THE CREDITORS ARE ADEQUATELY COMPENSATED FOR THE LOSS OF THEIR
PRIOR CLAIMS, IT IS NOT MATERIAL OUT OF WHAT ASSETS THEY ARE PAID.  SO
LONG AS THEY RECEIVE FULL COMPENSATORY TREATMENT AND SO LONG AS EACH
GROUP SHARES IN THE SECURITIES OF THE WHOLE ENTERPRISE ON AN EQUITABLE
BASIS, THE REQUIREMENTS OF 'FAIR AND EQUITABLE' ARE SATISFIED."  312
U.S.,AT 530. 

THE FACE AMOUNT OF THE DEBENTURES IN LITIGATION HERE WAS
$4,298,200.  THE DAMAGES SOUGHT AGAINST THE INDENTURE TRUSTEE ARE IN
THE SAME AMOUNT.  IF WE ASSUME, ARGUENDO, THAT THERE IS MERIT IN THE
CAUSE OF ACTION AND THAT THE INDENTURE TRUSTEE IS FULLY RESPONSIBLE,
ONE ENTIRE CLASS OF SECURITY HOLDERS IS ELIMINATED FROM ANY NECESSARY
CONSIDERATION IN THE PLAN.  OR IF THERE IS ONLY PARTIAL RECOVERY, THERE
IS A PRO RATA CHANGE IN THE RELATIVE POSITIONS OF THE VARIOUS CLASSES
OF CREDITORS.  A PLAN CANNOT BE DESIGNED WITHOUT A FINAL DETERMINATION
OF THE STATUS OF THE DEBENTURE HOLDERS VIS-A-VIS THE INDENTURE TRUSTEE,
OR AT LEAST AN INFORMED JUDGMENT CONCERNING THE VALUE OF THAT CLAIM. 

IT IS SAID THAT THE ASSETS OF THE DEBTOR WERE SOME $21 MILLION AND
THE LIABILITIES SOME $60 MILLION.  WHETHER CONDITIONS HAVE CHANGED SO
AS TO LEAVE SOME EQUITY FOR THE OLD STOCKHOLDERS, WE DO NOT KNOW.  THE
RULE ANNOUNCED BY THE COURT TODAY, HOWEVER, IS NOT FOR THIS CASE ALONE
BUT IS APPLICABLE TO ALL REORGANIZATIONS UNDER CHAPTER X. IN SOME CASES
THE ELIMINATION OF ONE ENTIRE CLASS OF CREDITORS OR A PRO RATE
REDUCTION IN THEIR CLAIMS WOULD GIVE STOCKHOLDERS A CHANCE TO
PARTICIPATE IN THE PLAN.  THERE IS NO OPPORTUNITY TO MAKE THAT
DETERMINATION WITHOUT INVESTIGATION, WITHOUT A PURSUIT OF CLAIMS, AND
WITHOUT THEIR PROSECUTION OR SETTLEMENT.  THE REORGANIZATION TRUSTEE
HAS FULL AUTHORITY TO DO JUST THAT UNDER THE DIRECTION OF THE COURT. 
AND UNLESS HE CAN TAKE THOSE STEPS, HE WILL NOT BE ABLE TO FORMULATE A
PLAN OF REORGANIZATION FOR SUBMISSION TO THE COURT. 

OF COURSE, DEBENTURE HOLDERS OR A PROTECTIVE COMMITTEE REPRESENTING
THEM MAY IN SOME CASES TAKE THE LEAD.  BUT CHAPTER X WAS WRITTEN WITH
THE VIEW THAT SUCH MATTERS SHOULD NOT BE LEFT TO HAPPENSTANCE.  THAT IS
WHY THE REORGANIZATION TRUSTEE WAS MADE TOE "FOCAL POINT" FOR TAKING AN
INVENTORY OF ASSETS AVAILABLE TO THE SEVERAL CLAIMANTS AND PROVIDING
WHAT PLAN WOULD BE FAIR AND EQUITABLE IN LIGHT OF THE SECURITY OF SOME
CLAIMANTS OR THE PAYMENT OF CLAIMS RIGHTFULLY DUE THEM.  /3/ 

THERE IS, WITH ALL RESPECT, NO MERIT IN THE ARGUMENT THAT, IF THE
REORGANIZATION TRUSTEE RECOVERS AGAINST THE INDENTURE TRUSTEE ON BEHALF
OF THE DEBENTURE HOLDERS, THE INDENTURE TRUSTEE WILL BE SUBROGATED TO
THE DEBENTURE HOLDERS, LEAVING THE TOTAL CLAIMS AFFECTED BY THE PLAN
WHOLLY UNCHANGED. 

THE COMPLAINT AGAINST THE INDENTURE TRUSTEE CHARGES WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE.  WHAT THE MERITS MAY BE WE, OF COURSE,
DO NOT KNOW AND INTIMATE NO OPINION.  BUT, IF TRUE, THE TRUST INDENTURE
ACT OF 1939, 15 U.S.C. 77OOO, GIVES NO IMMUNITY.  /4/ 

WE SAID IN PEPPER V. LITTON, 308 U.S. 295, 307, THAT "THE BANKRUPTCY
COURT IN PASSING ON ALLOWANCE OF CLAIMS SITS AS A COURT OF EQUITY" AND
WE CITED THE CASES SHOWING THAT CLAIMANTS IN A FIDUCIARY POSITION MAY
HAVE THEIR CLAIMS EITHER WHOLLY DISALLOWED OR SUBORDINATED.  ID., AT
311, 312.  AS STATED IN AMERICAN SURETY CO. V. BETHLEHEM BANK, 314 U.S.
314, 317, WHILE THE SURETY IS "A SPECIAL KIND OF SECURED CREDITOR"  IT
HAS A RIGHT THAT "CAN BE AVAILED OF ONLY BY A SURETY ALERT IN
DISCHARGING ITS DUTY . . . AND ONE NOT GUILTY OF INEQUITABLE CONDUCT." 
THE INDENTURE TRUSTEE IS NOT, OF COURSE, A SURETY.  IT WOULD HAVE TO
SEEK SUBROGATION UNDER THE GENERAL EQUITABLE DOCTRINE, STATED AS
FOLLOWS BY THE AMERICAN LAW INSTITUTE:  /5/ 

     "WHERE PROPERTY OF ONE PERSON IS USED IN DISCHARGING AN

  OBLIGATION OWED BY ANOTHER OR A LIEN UPON THE PROPERTY OF

  ANOTHER, UNDER SUCH CIRCUMSTANCES THAT THE OTHER WOULD BE

  UNJUSTLY ENRICHED BY THE RETENTION OF THE BENEFIT THUS CONFERRED,

  THE FORMER IS ENTITLED TO BE SUBROGATED TO THE POSITION OF THE

  OBLIGEE OR LIEN-HOLDER." 

IT IS NOT IMAGINABLE THAT ANY COURT WOULD EVER HOLD THAT AN
INDENTURE TRUSTEE, FOUND CULPABLY RESPONSIBLE FOR THE DEFAULT ON
DEBENTURES, WOULD BE SUBROGATED WITH RESPECT TO FUNDS WHICH OTHERWISE
WOULD GO TO INNOCENT CREDITORS OR STOCKHOLDERS ON THE GROUND THAT
PAYING MONEY TO THEM RATHER THAN TO IT WOULD CONSTITUTE UNJUST
ENRICHMENT.  A PERSON "WHO INVOKES THE DOCTRINE OF SUBROGATION MUST
COME INTO COURT WITH CLEAN HANDS."  GERMAN BANK V. UNITED STATES, 145
U.S. 573, 581. 

I AGREE WITH JUDGE KAUFMAN AND JUDGE HAYS, DISSENTING BELOW, AND WOULD
REVERSE THIS JUDGMENT. 

/1/  11 U.S.C. 569 PROVIDES: 

"WHERE A TRUSTEE HAS BEEN APPOINTED THE JUDGE SHALL FIX A TIME
WITHIN WHICH THE TRUSTEE SHALL PREPARE AND FILE A PLAN, OR A REPORT OF
HIS REASONS WHY A PLAN CANNOT BE EFFECTED, AND SHALL FIX A SUBSEQUENT
TIME FOR A HEARING ON SUCH PLAN OR REPORT AND FOR THE CONSIDERATION OF
ANY OBJECTIONS WHICH MAY BE MADE OR OF SUCH AMENDMENTS OR PLANS AS MAY
BE PROPOSED BY THE DEBTOR OR BY ANY CREDITOR OR STOCKHOLDER." 

/2/  THE "FIXED PRINCIPLE" THAT SENIOR INTERESTS MUST BE MADE WHOLE
BEFORE JUNIOR INTERESTS MAY PARTICIPATE IN A REORGANIZATION HAS ITS
ROOTS IN NORTHERN PACIFIC R. CO. V. BOYD, 228 U.S. 482.  IN THAT CASE
BOYD WAS A GENERAL AND UNPAID CREDITOR OF THE OLD CORPORATION.  IN A
REORGANIZATION BOYD WAS NOT FULLY COMPENSATED ALTHOUGH THE OLD
STOCKHOLDERS WERE ALLOWED TO PARTICIPATE IN THE NEW COMPANY.  HE
PROCEEDED AGAINST THE ASSETS OF THE NEW VENTURE ON THE GROUND THAT
SINCE THE OLD STOCKHOLDERS CONTINUED IN THE BUSINESS THE LATTER HAD
RECEIVED PROPERTY WHICH BELONGED TO THE CREDITORS.  THIS COURT RULED
FOR BOYD AND SAID "IF PURPOSELY OR UNINTENTIONALLY A SINGLE CREDITOR
WAS NOT PAID, OR PROVIDED FOR IN THE REORGANIZATION, HE COULD ASSERT
HIS SUPERIOR RIGHTS AGAINST THE SUBORDINATE INTERESTS OF THE OLD
STOCKHOLDERS IN THE PROPERTY TRANSFERRED TO THE NEW COMPANY."  ID., AT
504.  THIS PRINCIPLE CAME TO BE KNOWN AS THE "ABSOLUTE PRIORITY RULE." 
SEE BONBRIGHT & BERGERMAN, TWO RIVAL THEORIES OF PRIORITY RIGHTS OF
SECURITY HOLDERS, IN A CORPORATE REORGANIZATION, 28 COL.L.REV.  127
(1928).  THE RULE WAS INCORPORATED INTO EQUITY RECEIVERSHIPS.  KANSAS
CITY SOUTHERN R. CO. V. GUARDIAN TRUST CO., 240 U.S. 166; KANSAS CITY
TERMINAL R. CO. V. CENTRAL UNION TRUST CO., 271 U.S. 445.  LATER, IN
CASE V. LOS ANGELES LUMBER CO., 308 U.S. 106, 116, WE HELD THAT THE
ABSOLUTE-PRIORITY RULE WAS PART OF THE GLOSS WHICH THE CASE LAW HAD
PLACED UPON THE PHRASE "FAIR AND EQUITABLE," LANGUAGE WHICH HAD BEEN
USED IN SEC. 77BF)(1) OF THE NEWLY ENACTED SEC. 77B BANKRUPTCY
REORGANIZATION STATUTE.  48 STAT. 919.  WE CONCLUDED THAT CONGRESS HAD
INTENDED THAT THE BOYD RULE BE CARRIED FORWARD.  CONSOLIDATED ROCK CO.
V. DU BOIS, 312 U.S. 510, 527, REAFFIRMED THIS HOLDING AND FURTHER HELD
THAT THE REQUIREMENT OF ABSOLUTE PRIORITY EXTENDED TO CASES WHERE THE
DEBTOR WAS SOLVENT AS WELL AS THOSE WHERE THE DEBTOR WAS INSOLVENT. 
LATER, WE MADE CLEAR THAT THE BOYD REQUIREMENT OBTAINED UNDER CHAPTER
X. MARINE HARBOR PROPERTIES, INC. V. MANUFACTURERS TRUST CO., 317 U.S.
78, 85-87.  AS RECENT CASES REFLECT, THE ABSOLUTE-PRIORITY DOCTRINE HAS
BEEN CONTINUED AND IS FIRMLY ENTRENCHED IN CHAPTER X LAW.  E.G.,
PROTECTIVE COMMITTEE V. ANDERSON, 390 U.S. 414, 441; UNITED STATES V.
KEY, 397 U.S. 322, 327 (SEE ALSO CONCURRING OPINION, AT 333).  THE
REACH OF THAT DOCTRINE, HOWEVER, HAS NOT BEEN RESTRICTED TO CHAPTER X
PROCEEDINGS BUT HAS ALSO BEEN APPLIED TO RAILROAD REORGANIZATIONS UNDER
SEC. 77 OF THE BANKRUPTCY ACT, ECKER V. WESTERN PACIFIC R. CO., 318
U.S. 448, 484; GROUP OF INVESTORS V. MILWAUKEE R. CO., 318 U.S. 523,
535, 571; RECONSTRUCTION FINANCE CORP. V. DENVER & R.G.W.R. CO., 328
U.S. 495; TO DISSOLUTIONS UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT
OF 1935, 49 STAT. 838, OTIS & CO. V. SEC, 323 U.S. 624, 634 (BUT SEE
DISSENTING OPINION CONCLUDING THAT THE RULE HAD NOT BEEN FAITHFULLY
FOLLOWED, AT 648-649); SEC V. CENTRAL-ILLINOIS CORP., 338 U.S. 96, 130;
TO CHAPTER IX BANKRUPTCY PROCEEDINGS, KELLEY V. EVERGLADES DISTRICT,
319 U.S. 415, 420-421, N. 1; AND TO AFFIRM A DISMISSAL OF A CHAPTER XI
PETITION ON THE GROUND THAT A CHAPTER X REORGANIZATION WOULD PROVIDE
MORE PROTECTION FOR CREDITORS THAN A CHAPTER XI ARRANGEMENT, SEC V.
U.S. REALTY CO., 310 U.S. 434, 452, 456-458.  AND SEE GENERAL STORES
CORP. V. SHLENSKY, 350 U.S. 462, 466. 

/3/  SEE HEARINGS ON H.R. 8406 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 75TH CONG., 2D SESS., 126. 

/4/  WHILE THE INDENTURE TRUSTEE MAY RELY ON CERTIFICATES OR
OPINIONS CONCERNING THE TRUTH OF STATEMENTS AND THE CORRECTNESS OF
OPINIONS "IN THE ABSENCE OF BAD FAITH" (15 U.S.C. 77OOOA)(1)), IT IS
NOT EXEMPT FROM LIABILITY "FOR ITS OWN NEGLIGENT ACTION, ITS OWN
NEGLIGENT FAILURE TO ACT, OR ITS OWN WILLFUL MISCONDUCT" (15 U.S.C.
77OOOD)), SAVE FOR ERRORS IN JUDGMENT MADE IN GOOD FAITH.  IBID. 

/5/  RESTATEMENT OF RESTITUTION SEC. 162 (1937). 

CHARLES H. MILLER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE MORTIMER M. CAPLIN, PRO SE, HENRY WINESTINE, AND LEON E.
IRISH. 

JOHN W. DICKEY ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

DAVID FERBER ARGUED THE CAUSE FOR THE SECURITIES AND EXCHANGE
COMMISSION URGING REVERSAL.  WITH HIM ON THE BRIEFS WERE SOLICITOR
GENERAL GRISWOLD, SAMUEL HUNTINGTON, G. BRADFORD COOK, AND PAUL
GONSON. 
..END :






KASTIGAR V. UNITED STATES, 406 U.S. 441 


       KASTIGAR ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

  NINTH CIRCUIT

        NO. 70-117.  ARGUED JANUARY 11, 1972-- DECIDED MAY 22,
1972 


THE UNITED STATES CAN COMPEL TESTIMONY FROM AN UNWILLING WITNESS WHO
INVOKES THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION BY CONFERRING IMMUNITY, AS PROVIDED BY 18 U.S.C. 6002,
FROM USE OF THE COMPELLED TESTIMONY AND EVIDENCE DERIVED THEREFROM IN
SUBSEQUENT CRIMINAL PROCEEDINGS, AS SUCH IMMUNITY FROM USE AND
DERIVATIVE USE IS COEXTENSIVE WITH THE SCOPE OF THE PRIVILEGE AND IS
SUFFICIENT TO COMPEL TESTIMONY OVER A CLAIM OF THE PRIVILEGE. 
TRANSACTIONAL IMMUNITY WOULD AFFORD BROADER PROTECTION THAN THE FIFTH
AMENDMENT PRIVILEGE, AND IS NOT CONSTITUTIONALLY REQUIRED.  IN A
SUBSEQUENT CRIMINAL PROSECUTION, THE PROSECUTION HAS THE BURDEN OF
PROVING AFFIRMATIVELY THAT EVIDENCE PROPOSED TO BE USED IS DERIVED FROM
A LEGITIMATE SOURCE WHOLLY INDEPENDENT OF THE COMPELLED TESTIMONY.  PP.
443-462. 

440 F.2D 954, AFFIRMED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., POST,
P. 462, AND MARSHALL, J., POST, P. 467, FILED DISSENTING OPINIONS. 
BRENNAN AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASE. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER THE UNITED STATES GOVERNMENT
MAY COMPEL TESTIMONY FROM AN UNWILLING WITNESS, WHO INVOKES THE FIFTH
AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION, BY
CONFERRING ON THE WITNESS IMMUNITY FROM USE OF THE COMPELLED TESTIMONY
IN SUBSEQUENT CRIMINAL PROCEEDINGS, AS WELL AS IMMUNITY FROM USE OF
EVIDENCE DERIVED FROM THE TESTIMONY. 

PETITIONERS WERE SUBPOENAED TO APPEAR BEFORE A UNITED STATES GRAND
JURY IN THE CENTRAL DISTRICT OF CALIFORNIA ON FEBRUARY 4, 1971.  THE
GOVERNMENT BELIEVED THAT PETITIONERS WERE LIKELY TO ASSERT THEIR FIFTH
AMENDMENT PRIVILEGE.  PRIOR TO THE SCHEDULED APPEARANCES, THE
GOVERNMENT APPLIED TO THE DISTRICT COURT FOR AN ORDER DIRECTING
PETITIONERS TO ANSWER QUESTIONS AND PRODUCE EVIDENCE BEFORE THE GRAND
JURY UNDER A GRANT OF IMMUNITY CONFERRED PURSUANT TO 18 U.S.C. 6002
6003.  PETITIONERS OPPOSED ISSUANCE OF THE ORDER, CONTENDING PRIMARILY
THAT THE SCOPE OF THE IMMUNITY PROVIDED BY THE STATUTE WAS NOT
COEXTENSIVE WITH THE SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION,
AND THEREFORE WAS NOT SUFFICIENT TO SUPPLANT THE PRIVILEGE AND COMPEL
THEIR TESTIMONY.  THE DISTRICT COURT REJECTED THIS CONTENTION, AND
ORDERED PETITIONERS TO APPEAR BEFORE THE GRAND JURY AND ANSWER ITS
QUESTIONS UNDER THE GRANT OF IMMUNITY. 

PETITIONERS APPEARED BUT REFUSED TO ANSWER QUESTIONS, ASSERTING
THEIR PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION.  THEY WERE
BROUGHT BEFORE THE DISTRICT COURT, AND EACH PERSISTED IN HIS REFUSAL TO
ANSWER THE GRAND JURY'S QUESTIONS, NOTWITHSTANDING THE GRANT OF
IMMUNITY.  THE COURT FOUND BOTH IN CONTEMPT, AND COMMITTED THEM TO THE
CUSTODY OF THE ATTORNEY GENERAL UNTIL EITHER THEY ANSWERED THE GRAND
JURY'S QUESTIONS OR THE TERM OF THE GRAND JURY EXPIRED.  /1/  THE COURT
OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED.  STEWART V. UNITED STATES,
440 F.2D 954 (CA9 1971).  THIS COURT GRANTED CERTIORARI TO RESOLVE THE
IMPORTANT QUESTION WHETHER TESTIMONY MAY BE COMPELLED TESTIMONY AND
EVIDENCE DERIVED THEREFROM ("USE AND DERIVATIVE USE" IMMUNITY), OR
WHETHER IT IS NECESSARY TO GRANT IMMUNITY FROM PROSECUTION FOR OFFENSES
TO WHICH COMPELLED TESTIMONY RELATES ("TRANSACTIONAL" IMMUNITY).  402
U.S. 971 (1971). 

        I 

THE POWER OF GOVERNMENT TO COMPEL PERSONS TO TESTIFY IN COURT OR
BEFORE GRAND JURIES AND OTHER GOVERNMENTAL AGENCIES IS FIRMLY
ESTABLISHED IN ANGLO-AMERICAN JURISPRUDENCE.  /2/  THE POWER WITH
RESPECT TO COURTS WAS ESTABLISHED BY STATUTE IN ENGLAND AS EARLY AS
1562, /3/  AND LORD BACON OBSERVED IN 1612 THAT ALL SUBJECTS OWED THE
KING THEIR "KNOWLEDGE AND DISCOVERY."  /4/  WHILE IT IS NOT CLEAR WHEN
GRAND JURIES FIRST RESORTED TO COMPULSORY PROCESS TO SECURE THE
ATTENDANCE AND TESTIMONY OF WITNESSES, THE GENERAL COMMON-LAW PRINCIPLE
THAT "THE PUBLIC HAS A RIGHT TO EVERY MAN'S EVIDENCE" WAS CONSIDERED AN
"INDUBITABLE CERTAINTY" THAT "CANNOT BE DENIED" BY 1742.  /5/  THE
POWER TO COMPEL TESTIMONY, AND THE CORRESPONDING DUTY TO TESTIFY, ARE
RECOGNIZED IN THE SIXTH AMENDMENT REQUIREMENTS THAT AN ACCUSED BE
CONFRONTED WITH THE WITNESSES AGAINST HIM, AND HAVE COMPULSORY PROCESS
FOR OBTAINING WITNESSES IN HIS FAVOR.  THE FIRST CONGRESS RECOGNIZED
THE TESTIMONIAL DUTY IN THE JUDICIARY ACT OF 1789, WHICH PROVIDED FOR
COMPULSORY ATTENDANCE OF WITNESSES IN THE FEDERAL COURTS.  /6/  MR.
JUSTICE WHITE NOTED THE IMPORTANCE OF THIS ESSENTIAL POWER OF
GOVERNMENT IN HIS CONCURRING OPINION IN MURPHY V. WATERFRONT COMM'N,
378 U.S. 52, 93-94 (1964): 

     "AMONG THE NECESSARY AND MOST IMPORTANT OF THE POWERS OF THE

  STATES AS WELL AS THE FEDERAL GOVERNMENT TO ASSURE THE EFFECTIVE

  FUNCTIONING OF GOVERNMENT IN AN ORDERED SOCIETY IS THE BROAD

  POWER TO COMPEL RESIDENTS TO TESTIFY IN COURT OR BEFORE GRAND

  JURIES OR AGENCIES.  SEE BLAIR V. UNITED STATES, 250 U.S. 273. 

  SUCH TESTIMONY CONSTITUTES ONE OF THE GOVERNMENT'S PRIMARY

  SOURCES OF INFORMATION." 

BUT THE POWER TO COMPEL TESTIMONY IS NOT ABSOLUTE.  THERE ARE A
NUMBER OF EXEMPTIONS FROM THE TESTIMONIAL DUTY, /7/  THE MOST IMPORTANT
OF WHICH IS THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION.  THE PRIVILEGE REFLECTS A COMPLEX OF OUR FUNDAMENTAL
VALUES AND ASPIRATIONS, /8/  AND MARKS AN IMPORTANT ADVANCE IN THE
DEVELOPMENT OF OUR LIBERTY.  /9/  IT CAN BE ASSERTED IN ANY PROCEEDING,
CIVIL OR CRIMINAL, ADMINISTRATIVE OR JUDICIAL, INVESTIGATORY OR
ADJUDICATORY; /10/  AND IT PROTECTS AGAINST ANY DISCLOSURES THAT THE
WITNESS REASONABLY BELIEVES COULD BE USED IN A CRIMINAL PROSECUTION OR
COULD LEAD TO OTHER EVIDENCE THAT MIGHT BE USED.  /11/  THIS COURT HAS
BEEN ZEALOUS TO SAFEGUARD THE VALUES THAT UNDERLIE THE PRIVILEGE. 
/12/ 

IMMUNITY STATUTES, WHICH HAVE HISTORICAL ROOTS DEEP IN ANGLO
AMERICAN JURISPRUDENCE, /13/  ARE NOT INCOMPATIBLE WITH THESE VALUES. 
RATHER, THEY SEEK A RATIONAL ACCOMMODATION BETWEEN THE IMPERATIVES OF
THE PRIVILEGE AND THE LEGITIMATE DEMANDS OF GOVERNMENT TO COMPEL
CITIZENS TO TESTIFY.  THE EXISTENCE OF THESE STATUTES REFLECTS THE
IMPORTANCE OF TESTIMONY, AND THE FACT THAT MANY OFFENSES ARE OF SUCH A
CHARACTER THAT THE ONLY PERSONS CAPABLE OF GIVING USEFUL TESTIMONY ARE
THOSE IMPLICATED IN THE CRIME.  INDEED, THEIR ORIGINS WERE IN THE
CONTEXT OF SUCH OFFENSES, /14/  AND THEIR PRIMARY USE HAS BEEN TO
INVESTIGATE SUCH OFFENSES.  /15/  CONGRESS INCLUDED IMMUNITY STATUTES
IN MANY OF THE REGULATORY MEASURES ADOPTED IN THE FIRST HALF OF THIS
CENTURY.  /16/  INDEED, PRIOR TO THE ENACTMENT OF THE STATUTE UNDER
CONSIDERATION IN THIS CASE, THERE WERE IN FORCE OVER 50 FEDERAL
IMMUNITY STATUTES.  /17/  IN ADDITION, EVERY STATE IN THE UNION, AS
WELL AS THE DISTRICT OF COLUMBIA AND PUERTO RICO, HAS ONE OR MORE SUCH
STATUTES.  /18/  THE COMMENTATORS, /19/  AND THIS COURT ON SEVERAL
OCCASIONS, /20/  HAVE CHARACTERIZED IMMUNITY STATUTES AS ESSENTIAL TO
THE EFFECTIVE ENFORCEMENT OF VARIOUS CRIMINAL STATUTES.  AS MR. JUSTICE
FRANKFURTER OBSERVED, SPEAKING FOR THE COURT IN ULLMANN V. UNITED
STATES, 350 U.S. 422 (1956), SUCH STATUTES HAVE "BECOME PART OF OUR
CONSTITUTIONAL FABRIC."  /21/  ID., AT 438. 

        II 

PETITIONERS CONTEND, FIRST, THAT THE FIFTH AMENDMENT'S PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION, WHICH IS THAT "(NO PERSON . . .
SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF," DEPRIVES CONGRESS OF POWER TO ENACT LAWS THAT COMPEL SELF
INCRIMINATION, EVEN IF COMPLETE IMMUNITY FROM PROSECUTION IS GRANTED
PRIOR TO THE COMPULSION OF THE INCRIMINATORY TESTIMONY.  IN OTHER
WORDS, PETITIONERS ASSERT THAT NO IMMUNITY STATUTE, HOWEVER DRAWN, CAN
AFFORD A LAWFUL BASIS FOR COMPELLING INCRIMINATORY TESTIMONY.  THEY ASK
US TO RECONSIDER AND OVERRULE BROWN V. WALKER, 161 U.S. 591 (1896), AND
ULLMANN V. UNITED STATES, SUPRA, DECISIONS THAT UPHOLD THE
CONSTITUTIONALITY OF IMMUNITY STATUTES.  /22/  WE FIND NO MERIT TO THIS
CONTENTION AND REAFFIRM THE DECISIONS IN BROWN AND ULLMANN. 

        III 

PETITIONERS' SECOND CONTENTION IS THAT THE SCOPE OF IMMUNITY
PROVIDED BY THE FEDERAL WITNESS IMMUNITY STATUTE, 18 U.S.C. 6002, IS
NOT COEXTENSIVE WITH THE SCOPE OF THE FIFTH AMENDMENT PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION, AND THEREFORE IS NOT SUFFICIENT TO
SUPPLANT THE PRIVILEGE AND COMPEL TESTIMONY OVER A CLAIM OF THE
PRIVILEGE.  THE STATUTE PROVIDES THAT WHEN A WITNESS IS COMPELLED BY
DISTRICT COURT ORDER TO TESTIFY OVER A CLAIM OF THE PRIVILEGE: 

"THE WITNESS MAY NOT REFUSE TO COMPLY WITH THE ORDER ON THE BASIS OF
HIS PRIVILEGE AGAINST SELF-INCRIMINATION; BUT NO TESTIMONY OR OTHER
INFORMATION COMPELLED UNDER THE ORDER (OR ANY INFORMATION DIRECTLY OR
INDIRECTLY DERIVED FROM SUCH TESTIMONY OR OTHER INFORMATION) MAY BE
USED AGAINST THE WITNESS IN ANY CRIMINAL CASE, EXCEPT A PROSECUTION FOR
PERJURY, GIVING A FALSE STATEMENT, OR OTHERWISE FAILING TO COMPLY WITH
THE ORDER,"  /23/  18 U.S.C. 6002. 

THE CONSTITUTIONAL INQUIRY, ROOTED IN LOGIC AND HISTORY, AS WELL AS
IN THE DECISIONS OF THIS COURT, IS WHETHER THE IMMUNITY GRANTED UNDER
THIS STATUTE IS COEXTENSIVE WITH THE SCOPE OF THE PRIVILEGE.  /24/  IF
SO, PETITIONERS' REFUSALS TO ANSWER BASED ON THE PRIVILEGE WERE
UNJUSTIFIED, AND THE JUDGMENTS OF CONTEMPT WERE PROPER, FOR THE GRANT
OF IMMUNITY HAS REMOVED THE DANGERS AGAINST WHICH THE PRIVILEGE
PROTECTS.  BROWN V. WALKER, SUPRA.  IF, ON THE OTHER HAND, THE IMMUNITY
GRANTED IS NOT AS COMPREHENSIVE AS THE PROTECTION AFFORDED BY THE
PRIVILEGE, PETITIONERS WERE JUSTIFIED IN REFUSING TO ANSWER, AND THE
JUDGMENTS OF CONTEMPT MUST BE VACATED.  MCCARTHY V. ARNDSTEIN, 266 U.S.
34, 42 (1924). 

PETITIONERS DRAW A DISTINCTION BETWEEN STATUTES THAT PROVIDE
TRANSACTIONAL IMMUNITY AND THOSE THAT PROVIDE, AS DOES THE STATUTE
BEFORE US, IMMUNITY FROM USE AND DERIVATIVE USE.  /25/  THEY CONTEND
THAT A STATUTE MUST AT A MINIMUM GRANT FULL TRANSACTIONAL IMMUNITY IN
ORDER TO BE COEXTENSIVE WITH THE SCOPE OF THE PRIVILEGE.  IN SUPPORT OF
THIS CONTENTION, THEY RELY ON COUNSELMAN V. HITCHCOCK, 142 U.S. 547
(1892), THE FIRST CASE IN WHICH THIS COURT CONSIDERED A CONSTITUTIONAL
CHALLENGE TO AN IMMUNITY STATUTE.  THE STATUTE, A RE-ENACTMENT OF THE
IMMUNITY ACT OF 1868, /26/  PROVIDED THAT NO "EVIDENCE OBTAINED FROM A
PARTY OR WITNESS BY MEANS OF A JUDICIAL PROCEEDING . . . SHALL BE GIVEN
IN EVIDENCE, OR IN ANY MANNER USED AGAINST HIM . . . IN ANY COURT OF
THE UNITED STATES . . . . " /27/  NOTWITHSTANDING A GRANT OF IMMUNITY
AND ORDER TO TESTIFY UNDER THE REVISED 1868 ACT, THE WITNESS, ASSERTING
HIS PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION, REFUSED TO TESTIFY
BEFORE A FEDERAL GRAND JURY.  HE WAS CONSEQUENTLY ADJUDGED IN CONTEMPT
OF COURT.  /28/  ON APPEAL, THIS COURT CONSTRUED THE STATUTE AS
AFFORDING A WITNESS PROTECTION ONLY AGAINST THE USE OF THE SPECIFIC
TESTIMONY COMPELLED FROM HIM UNDER THE GRANT OF IMMUNITY.  THIS
CONSTRUCTION MEANT THAT THE STATUTE "COULD NOT, AND WOULD NOT, PREVENT
THE USE OF HIS TESTIMONY TO SEARCH OUT OTHER TESTIMONY TO BE USED IN
EVIDENCE AGAINST HIM."  /29/  SINCE THE REVISED 1868 ACT, AS CONSTRUED
BY THE COURT, WOULD PERMIT THE USE AGAINST THE IMMUNIZED WITNESS OF
EVIDENCE DERIVED FROM HIS COMPELLED TESTIMONY, IT DID NOT PROTECT THE
WITNESS TO THE SAME EXTENT THAT A CLAIM OF THE PRIVILEGE WOULD PROTECT
HIM HIM.  ACCORDINGLY, UNDER THE PRINCIPLE THAT A GRANT OF IMMUNITY
CANNOT SUPPLANT THE PRIVILEGE, AND IS NOT SUFFICIENT TO COMPEL
TESTIMONY OVER A CLAIM OF THE PRIVILEGE, UNLESS THE SCOPE OF THE GRANT
OF IMMUNITY IS COEXTENSIVE WITH THE SCOPE OF THE PRIVILEGE, /30/  THE
WITNESS' REFUSAL TO TESTIFY WAS HELD PROPER.  IN THE COURSE OF ITS
OPINION, THE COURT MADE THE FOLLOWING STATEMENT, ON WHICH PETITIONERS
HEAVILY RELY: 

     "WE ARE CLEARLY OF OPINION THAT NO STATUTE WHICH LEAVES THE

  PARTY OR WITNESS SUBJECT TO PROSECUTION AFTER HE ANSWERS THE

  CRIMINATING QUESTION PUT TO HIM, CAN HAVE THE EFFECT OF

  SUPPLANTING THE PRIVILEGE CONFERRED BY THE CONSTITUTION OF THE

UNITED STATES.  (THE IMMUNITY STATUTE UNDER CONSIDERATION) DOES

  NOT SUPPLY A COMPLETE PROTECTION FROM ALL THE PERILS AGAINST

  WHICH THE CONSTITUTIONAL PROHIBITION WAS DESIGNED TO GUARD, AND

  IS NOT A FULL SUBSTITUTE FOR THAT PROHIBITION.  IN VIEW OF THE

  CONSTITUTIONAL PROVISION, A STATUTORY ENACTMENT, TO BE VALID,

  MUST AFFORD ABSOLUTE IMMUNITY AGAINST FUTURE PROSECUTION FOR THE

  OFFENSE TO WHICH THE QUESTION RELATES."  142 U.S.,AT 585-586. 

SIXTEEN DAYS AFTER THE COUNSELMAN DECISION, A NEW IMMUNITY BILL WAS
INTRODUCED BY SENATOR CULLOM, /31/  WHO URGED THAT ENFORCEMENT OF THE
INTERSTATE COMMERCE ACT WOULD BE IMPOSSIBLE IN THE ABSENCE OF AN
EFFECTIVE IMMUNITY STATUTE.  /32/  THE BILL, WHICH BECAME THE
COMPULSORY TESTIMONY ACT OF 1893, /33/  WAS DRAFTED SPECIFICALLY TO
MEET THE BROAD LANGUAGE IN COUNSELMAN SET FORTH ABOVE.  /34/  THE NEW
ACT REMOVED THE PRIVILEGE AGAINST SELF-INCRIMINATION IN HEARINGS BEFORE
THE INTERSTATE COMMERCE COMMISSION AND PROVIDED THAT: 

"NO PERSON SHALL BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR
FORFEITURE FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER OR THING,
CONCERNING WHICH HE MAY TESTIFY, OR PRODUCE EVIDENCE, DOCUMENTARY OR
OTHERWISE . . . . "  ACT OF FEB. 11, 1893, 27 STAT. 444.  THIS
TRANSACTIONAL IMMUNITY STATUTE BECAME THE BASIC FORM FOR THE NUMEROUS
FEDERAL IMMUNITY STATUTES /35/  UNTIL 1970, WHEN, AFTER RE-EXAMINING
APPLICABLE CONSTITUTIONAL PRINCIPLES AND THE ADEQUACY OF EXISTING LAW,
CONGRESS ENACTED THE STATUTE HERE UNDER CONSIDERATION.  /36/  THE NEW
STATUTE, WHICH DOES NOT "AFFORD (THE) ABSOLUTE IMMUNITY AGAINST FUTURE
PROSECUTION" REFERRED TO IN COUNSELMAN, WAS DRAFTED TO MEET WHAT
CONGRESS JUDGED TO BE THE CONCEPTUAL BASIS OF COUNSELMAN, AS ELABORATED
IN SUBSEQUENT DECISIONS OF THE COURT, NAMELY, THAT IMMUNITY FROM THE
USE OF COMPELLED TESTIMONY AND EVIDENCE DERIVED THEREFROM IS
COEXTENSIVE WITH THE SCOPE OF THE PRIVILEGE.  /37 

THE STATUTE'S EXPLICIT PROSCRIPTION OF THE USE IN ANY CRIMINAL CASE
OF "TESTIMONY OR OTHER INFORMATION COMPELLED UNDER THE ORDER (OR ANY
INFORMATION DIRECTLY OR INDIRECTLY DERIVED FROM SUCH TESTIMONY OR OTHER
INFORMATION)" IS CONSONANT WITH FIFTH AMENDMENT STANDARDS.  WE HOLD
THAT SUCH IMMUNITY FROM USE AND DERIVATIVE USE IS COEXTENSIVE WITH THE
SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION, AND THEREFORE IS
SUFFICIENT TO COMPEL TESTIMONY OVER A CLAIM OF THE PRIVILEGE.  WHILE A
GRANT OF IMMUNITY MUST AFFORD PROTECTION COMMENSURATE WITH THAT
AFFORDED BY THE PRIVILEGE, IT NEED NOT BE BROADER.  TRANSACTIONAL
IMMUNITY, WHICH ACCORDS FULL IMMUNITY FROM PROSECUTION FOR THE OFFENSE
TO WHICH THE COMPELLED TESTIMONY RELATES, AFFORDS THE WITNESS
CONSIDERABLY BROADER PROTECTION THAN DOES THE FIFTH AMENDMENT
PRIVILEGE.  THE PRIVILEGE HAS NEVER BEEN CONSTRUED TO MEAN THAT ONE WHO
INVOKES IT CANNOT SUBSEQUENTLY BE PROSECUTED.  ITS SOLE CONCERN IS TO
AFFORD PROTECTION AGAINST BEING "FORCED TO GIVE TESTIMONY LEADING TO
THE INFLICTION OF 'PENALTIES AFFIXED TO . . . CRIMINAL ACTS.'"  /38/
IMMUNITY FROM THE USE OF COMPELLED TESTIMONY, AS WELL AS EVIDENCE
DERIVED DIRECTLY AND INDIRECTLY THEREFROM, AFFORDS THIS PROTECTION.  IT
PROHIBITS THE PROSECUTORIAL AUTHORITIES FROM USING THE COMPELLED
TESTIMONY IN ANY RESPECT, AND IT THEREFORE INSURES THAT THE TESTIMONY
CANNOT LEAD TO THE INFLICTION OF CRIMINAL PENALTIES ON THE WITNESS. 

OUR HOLDING IS CONSISTENT WITH THE CONCEPTUAL BASIS OF COUNSELMAN. 
THE COUNSELMAN STATUTE, AS CONSTRUED BY THE COURT, WAS PLAINLY
DEFICIENT IN ITS FAILURE TO PROHIBIT THE USE AGAINST THE IMMUNIZED
WITNESS OF EVIDENCE DERIVED FROM HIS COMPELLED TESTIMONY.  THE COURT
REPEATEDLY EMPHASIZED THIS DEFICIENCY, NOTHING THAT THE STATUTE: 

"COULD NOT, AND WOULD NOT, PREVENT THE USE OF HIS TESTIMONY TO
SEARCH OUT OTHER TESTIMONY TO BE USED IN EVIDENCE AGAINST HIM OR HIS
PROPERTY, IN A CRIMINAL PROCEEDING . . . " 142 U.S.,AT 564; THAT IT: 

"COULD NOT PREVENT THE OBTAINING AND THE USE OF WITNESSES AND
EVIDENCE WHICH SHOULD BE ATTRIBUTABLE DIRECTLY TO THE TESTIMONY HE
MIGHT GIVE UNDER COMPULSION, AND ON WHICH HE MIGHT BE CONVICTED, WHEN
OTHERWISE, AND IF HE HAD REFUSED TO ANSWER, HE COULD NOT POSSIBLY HAVE
BEEN CONVICTED," IBID.; AND THAT IT: 

"AFFORDS NO PROTECTION AGAINST THAT USE OF COMPELLED TESTIMONY WHICH
CONSISTS IN GAINING THEREFROM A KNOWLEDGE OF THE DETAILS OF A CRIME,
AND OF SOURCES OF INFORMATION WHICH MAY SUPPLY OTHER MEANS OF
CONVICTING THE WITNESS OR PARTY."  142 U.S.,AT 586.  THE BASIS OF THE
COURT'S DECISION WAS RECOGNIZED IN ULLMANN V. UNITED STATES, 350 U.S.
422 (1956), IN WHICH THE COURT REITERATED THAT THE COUNSELMAN STATUTE
WAS INSUFFICIENT: 

"BECAUSE THE IMMUNITY GRANTED WAS INCOMPLETE, IN THAT IT MERELY
FORBADE THE USE OF THE TESTIMONY GIVEN AND FAILED TO PROTECT A WITNESS
FROM FUTURE PROSECUTION BASED ON KNOWLEDGE AND SOURCES OF INFORMATION
OBTAINED FROM THE COMPELLED TESTIMONY."  ID., AT 437.  SEE ALSO
ARNDSTEIN V. MCCARTHY, 254 U.S. 71, 73 (1920).  THE BROAD LANGUAGE IN
COUNSELMAN RELIED UPON BY PETITIONERS WAS UNNECESSARY TO THE COURT'S
DECISION, AND CANNOT BE CONSIDERED BINDING AUTHORITY.  /39/ 

IN MURPHY V. WATERFRONT COMM'N, 378 U.S. 52 (1964), THE COURT
CAREFULLY CONSIDERED IMMUNITY FROM USE OF COMPELLED TESTIMONY AND
EVIDENCE DERIVED THEREFROM.  THE MURPHY PETITIONERS WERE SUBPOENAED TO
TESTIFY AT A HEARING CONDUCTED BY THE WATERFRONT COMMISSION OF NEW YORK
HARBOR.  AFTER REFUSING TO ANSWER CERTAIN QUESTIONS ON THE GROUND THAT
THE ANSWERS MIGHT TEND TO INCRIMINATE THEM, PETITIONERS WERE GRANTED
IMMUNITY FROM PROSECUTION UNDER THE LAWS OF NEW JERSEY AND NEW YORK. 
/40/  THEY CONTINUED TO REFUSE TO TESTIFY, HOWEVER, ON THE GROUND THAT
THEIR ANSWERS MIGHT TEND TO INCRIMINATE THEM UNDER FEDERAL LAW, TO
WHICH THE IMMUNITY DID NOT PURPORT TO EXTEND.  THEY WERE ADJUDGED IN
CIVIL CONTEMPT, AND THAT JUDGMENT WAS AFFIRMED BY THE NEW JERSEY
SUPREME COURT.  /41/ 

THE ISSUE BEFORE THE COURT IN MURPHY WAS WHETHER NEW JERSEY AND NEW
YORK COULD COMPEL THE WITNESSES, WHOM THESE STATES HAD IMMUNIZED FROM
PROSECUTION UNDER THEIR LAWS, TO GIVE TESTIMONY THAT MIGHT THEN BE USED
TO CONVICT THEM OF A FEDERAL CRIME.  SINCE NEW JERSEY AND NEW YORK HAD
NOT PURPORTED TO CONFER IMMUNITY FROM FEDERAL PROSECUTION, THE COURT
WAS FACED WITH THE QUESTION WHAT LIMITATIONS THE FIFTH AMENDMENT
PRIVILEGE IMPOSED ON THE PROSECUTORIAL POWERS OF THE FEDERAL
GOVERNMENT, A NONIMMUNIZING SOVEREIGN.  AFTER UNDERTAKING AN
EXAMINATION OF THE POLICIES AND PURPOSES OF THE PRIVILEGE, THE COURT
OVERTURNED THE RULE THAT ONE JURISDICTION WITHIN OUR FEDERAL STRUCTURE
MAY COMPEL A WITNESS TO GIVE TESTIMONY WHICH COULD BE USED TO CONVICT
HIM OF A CRIME IN ANOTHER JURISDICTION.  /42/  THE COURT HELD THAT THE
PRIVILEGE PROTECTS STATE WITNESSES AGAINST INCRIMINATION UNDER FEDERAL
AS WELL AS STATE LAW, AND FEDERAL WITNESSES AGAINST INCRIMINATION UNDER
STATE AS WELL AS FEDERAL LAW.  APPLYING THIS PRINCIPLE TO THE STATE
IMMUNITY LEGISLATION BEFORE IT, THE COURT HELD THE CONSTITUTIONAL RULE
TO BE THAT: 

"(A) STATE WITNESS MAY NOT BE COMPELLED TO GIVE TESTIMONY WHICH MAY
BE INCRIMINATING UNDER FEDERAL LAW UNLESS THE COMPELLED TESTIMONY AND
ITS FRUITS CANNOT BE USED IN ANY MANNER BY FEDERAL OFFICIALS IN
CONNECTION WITH A CRIMINAL PROSECUTION AGAINST HIM.  WE CONCLUDE,
MOREOVER, THAT IN ORDER TO IMPLEMENT THIS CONSTITUTIONAL RULE AND
ACCOMMODATE THE INTERESTS OF THE STATE AND FEDERAL GOVERNMENTS IN
INVESTIGATING AND PROSECUTING CRIME, THE FEDERAL GOVERNMENT MUST BE
PROHIBITED FROM MAKING ANY SUCH USE OF COMPELLED TESTIMONY AND ITS
FRUITS."  /43/  378 U.S.,AT 79.  THE COURT EMPHASIZED THAT THIS RULE
LEFT THE STATE WITNESS AND THE FEDERAL GOVERNMENT, AGAINST WHICH THE
WITNESS HAD IMMUNITY ONLY FROM THE USE OF THE COMPELLED TESTIMONY AND
EVIDENCE DERIVED THEREFROM, "IN SUBSTANTIALLY THE SAME POSITION AS IF
THE WITNESS HAD CLAIMED HIS PRIVILEGE IN THE ABSENCE OF A STATE GRANT
OF IMMUNITY."  IBID. 

IT IS TRUE THAT IN MURPHY THE COURT WAS NOT PRESENTED WITH THE
PRECISE QUESTION PRESENTED BY THIS CASE, WHETHER A JURISDICTION SEEKING
TO COMPEL TESTIMONY MAY DO SO BY GRANTING ONLY USE AND DERIVATIVE-USE
IMMUNITY, FOR NEW JERSEY AND NEW YORK HAD GRANTED PETITIONERS
TRANSACTIONAL IMMUNITY.  THE COURT HERETOFORE HAS NOT SQUARELY
CONFRONTED THIS QUESTION, /44/  BECAUSE POST-COUNSELMAN IMMUNITY
STATUTES REACHING THE COURT EITHER HAVE FOLLOWED THE PATTERN OF THE
1893 ACT IN PROVIDING TRANSACTIONAL IMMUNITY, /45/  OR HAVE BEEN FOUND
DEFICIENT FOR FAILURE TO PROHIBIT THE USE OF ALL EVIDENCE DERIVED FROM
COMPELLED TESTIMONY.  /46/  BUT BOTH THE REASONING OF THE COURT IN
MURPHY AND THE RESULT REACHED COMPEL THE CONCLUSION THAT USE AND
DERIVATIVE-USE IMMUNITY IS CONSTITUTIONALLY SUFFICIENT TO COMPEL
TESTIMONY OVER A CLAIM OF THE PRIVILEGE.  SINCE THE PRIVILEGE IS FULLY
APPLICABLE AND ITS SCOPE IS THE SAME WHETHER INVOKED IN A STATE OR IN A
FEDERAL JURISDICTION, /47/  THE MURPHY CONCLUSION THAT A PROHIBITION ON
USE AND DERIVATIVE USE SECURES A WITNESS' FIFTH AMENDMENT PRIVILEGE
AGAINST INFRINGEMENT BY THE FEDERAL GOVERNMENT DEMONSTRATES THAT
IMMUNITY FROM USE AND DERIVATIVE USE IS COEXTENSIVE WITH THE SCOPE OF
THE PRIVILEGE.  AS THE MURPHY COURT NOTED, IMMUNITY FROM USE AND
DERIVATIVE USE "LEAVES THE WITNESS AND THE FEDERAL GOVERNMENT IN
SUBSTANTIALLY THE SAME POSITION AS IF THE WITNESS HAD CLAIMED HIS
PRIVILEGE"  /48/  IN THE ABSENCE OF A GRANT OF IMMUNITY.  THE MURPHY
COURT WAS CONCERNED SOLELY WITH THE DANGER OF INCRIMINATION UNDER
FEDERAL LAW, AND HELD THAT IMMUNITY FROM USE AND DERIVATIVE USE WAS
SUFFICIENT TO DISPLACE THE DANGER.  THIS PROTECTION COEXTENSIVE WITH
THE PRIVILEGE IS THE DEGREE OF PROTECTION THAT THE CONSTITUTION
REQUIRES, AND IS ALL THAT THE CONSTITUTION REQUIRES EVEN AGAINST THE
JURISDICTION COMPELLING TESTIMONY BY GRANTING IMMUNITY.  /49/

      IV 

ALTHOUGH AN ANALYSIS OF PRIOR DECISIONS AND THE PURPOSE OF THE FIFTH
AMENDMENT PRIVILEGE INDICATES THAT USE AND DERIVATIVE-USE IMMUNITY IS
COEXTENSIVE WITH THE PRIVILEGE, WE MUST CONSIDER ADDITIONAL ARGUMENTS
ADVANCED BY PETITIONERS AGAINST THE SUFFICIENCY OF SUCH IMMUNITY.  WE
START FROM THE PREMISE, REPEATEDLY AFFIRMED BY THIS COURT, THAT AN
APPROPRIATELY BROAD IMMUNITY GRANT IS COMPATIBLE WITH THE
CONSTITUTION. 

PETITIONERS ARGUE THAT USE AND DERIVATIVE-USE IMMUNITY WILL NOT
ADEQUATELY PROTECT A WITNESS FROM VARIOUS POSSIBLE INCRIMINATING USES
OF THE COMPELLED TESTIMONY:  FOR EXAMPLE, THE PROSECUTOR OF OTHER LAW
ENFORCEMENT OFFICIALS MAY OBTAIN LEADS, NAMES OF WITNESSES, OR OTHER
INFORMATION NOT OTHERWISE AVAILABLE THAT MIGHT RESULT IN A
PROSECUTION.  IT WILL BE DIFFICULT AND PERHAPS IMPOSSIBLE, THE ARGUMENT
GOES, TO IDENTIFY, BY TESTIMONY OR CROSS-EXAMINATION, THE SUBTLE WAYS
IN WHICH THE COMPELLED TESTIMONY MAY DISADVANTAGE A WITNESS, ESPECIALLY
IN THE JURISDICTION GRANTING THE IMMUNITY. 

THIS ARGUMENT PRESUPPOSES THAT THE STATUTE'S PROHIBITION WILL PROVE
IMPOSSIBLE TO ENFORCE.  THE STATUTE PROVIDES A SWEEPING PROSCRIPTION OF
ANY USE, DIRECT OR INDIRECT, OF THE COMPELLED TESTIMONY AND ANY
INFORMATION DERIVED THEREFROM: 

"(NO TESTIMONY OR OTHER INFORMATION COMPELLED UNDER THE ORDER (OR
ANY INFORMATION DIRECTLY OR INDIRECTLY DERIVED FROM SUCH TESTIMONY OR
OTHER INFORMATION) MAY BE USED AGAINST THE WITNESS IN ANY CRIMINAL CASE
. . . ."  18 U.S.C. 6002.  THIS TOTAL PROHIBITION ON USE PROVIDES A
COMPREHENSIVE SAFEGUARD, BARRING THE USE OF COMPELLED TESTIMONY AS AN
"INVESTIGATORY LEAD,"  /50/  AND ALSO BARRING THE USE OF ANY EVIDENCE
OBTAINED BY FOCUSING INVESTIGATION ON A WITNESS AS A RESULT OF HIS
COMPELLED DISCLOSURES. 

A PERSON ACCORDED THIS IMMUNITY UNDER 18 U.S.C. 6002, AND
SUBSEQUENTLY PROSECUTED, IS NOT DEPENDENT FOR THE PRESERVATION OF HIS
RIGHTS UPON THE INTEGRITY AND GOOD FAITH OF THE PROSECUTING
AUTHORITIES.  AS STATED IN MURPHY: 

"ONCE A DEFENDANT DEMONSTRATES THAT HE HAS TESTIFIED, UNDER A STATE
GRANT OF IMMUNITY, TO MATTERS RELATED TO THE FEDERAL PROSECUTION, THE
FEDERAL AUTHORITIES HAVE THE BURDEN OF SHOWING THAT THEIR EVIDENCE IS
NOT TAINTED BY ESTABLISHING THAT THEY HAD AN INDEPENDENT, LEGITIMATE
SOURCE FOR THE DISPUTED EVIDENCE."  378 U.S.,AT 79 N. 18.  THIS BURDEN
OF PROOF, WHICH WE REAFFIRM AS APPROPRIATE, IS NOT LIMITED TO A
NEGATION OF TAINT; RATHER, IT IMPOSES ON THE PROSECUTION THE
AFFIRMATIVE DUTY TO PROVE THAT THE EVIDENCE IT PROPOSES TO USE IS
DERIVED FROM A LEGITIMATE SOURCE WHOLLY INDEPENDENT OF THE COMPELLED
TESTIMONY. 

THIS IS VERY SUBSTANTIAL PROTECTION, /51/  COMMENSURATE WITH THAT
RESULTING FROM INVOKING THE PRIVILEGE ITSELF.  THE PRIVILEGE ASSURES
THAT A CITIZEN IS NOT COMPELLED TO INCRIMINATE HIMSELF BY HIS OWN
TESTIMONY.  IT USUALLY OPERATES TO ALLOW A CITIZEN TO REMAIN SILENT
WHEN ASKED A QUESTION REQUIRING AN INCRIMINATORY ANSWER.  THIS STATUTE,
WHICH OPERATES AFTER A WITNESS HAS GIVEN INCRIMINATORY TESTIMONY,
AFFORDS THE SAME PROTECTION BY ASSURING THAT THE COMPELLED TESTIMONY
CAN IN NO WAY LEAD TO THE INFLICTION OF CRIMINAL PENALTIES.  THE
STATUTE, LIKE THE FIFTH AMENDMENT, GRANTS NEITHER PARDON NOR AMNESTY. 
BOTH THE STATUTE AND THE FIFTH AMENDMENT ALLOW THE GOVERNMENT TO
PROSECUTE USING EVIDENCE FROM LEGITIMATE INDEPENDENT SOURCES. 

THE STATUTORY PROSCRIPTION IS ANALOGOUS TO THE FIFTH AMENDMENT
REQUIREMENT IN CASES OF COERCED CONFESSIONS.  /52/  A COERCED
CONFESSION, AS REVEALING OF LEADS AS TESTIMONY GIVEN IN EXCHANGE FOR
IMMUNITY, /53/ IS INADMISSIBLE IN A CRIMINAL TRIAL, BUT IT DOES NOT BAR
PROSECUTION.  /54/  MOREOVER, A DEFENDANT AGAINST WHOM INCRIMINATING
EVIDENCE HAS BEEN OBTAINED THROUGH A GRANT OF IMMUNITY MAY BE IN A
STRONGER POSITION AT TRIAL THAN A DEFENDANT WHO ASSERTS A FIFTH
AMENDMENT COERCED-CONFESSION CLAIM.  ONE RAISING A CLAIM UNDER THIS
STATUTE NEED ONLY SHOW THAT HE TESTIFIED UNDER A GRANT OF IMMUNITY IN
ORDER TO SHIFT TO THE GOVERNMENT THE HEAVY BURDEN OF PROVING THAT ALL
OF THE EVIDENCE IT PROPOSES TO USE WAS DERIVED FROM LEGITIMATE
INDEPENDENT SOURCES.  /55/  ON THE OTHER HAND, A DEFENDANT RAISING A
COERCED-CONFESSION CLAIM UNDER THE FIFTH AMENDMENT MUST FIRST PREVAIL
IN A VOLUNTARINESS HEARING BEFORE HIS CONFESSION AND EVIDENCE DERIVED
FROM IT BECOME INADMISSIBLE.  /56/ 

THERE CAN BE NO JUSTIFICATION IN REASON OR POLICY FOR HOLDING THAT
THE CONSTITUTION REQUIRES AN AMNESTY GRANT WHERE, ACTING PURSUANT TO
STATUTE AND ACCOMPANYING SAFEGUARDS, TESTIMONY IS COMPELLED IN EXCHANGE
FOR IMMUNITY FROM USE AND DERIVATIVE USE WHEN NO SUCH AMNESTY IS
REQUIRED WHERE THE GOVERNMENT, ACTING WITHOUT COLORABLE RIGHT, COERCES
A DEFENDANT INTO INCRIMINATING HIMSELF. 

WE CONCLUDE THAT THE IMMUNITY PROVIDED BY 18 U.S.C. 6002 LEAVES THE
WITNESS AND THE PROSECUTORIAL AUTHORITIES IN SUBSTANTIALLY THE SAME
POSITION AS IF THE WITNESS HAD CLAIMED THE FIFTH AMENDMENT PRIVILEGE. 
THE IMMUNITY THEREFORE IS COEXTENSIVE WITH THE PRIVILEGE AND SUFFICES
TO SUPPLANT IT.  THE JUDGMENT OF THE COURT OF APPEALS FOR THE NINTH
CIRCUIT ACCORDINGLY IS

              AFFIRMED. 

MR. JUSTICE BRENNAN AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  THE CONTEMPT ORDER WAS ISSUED PURSUANT TO 28 U.S.C. 1826. 

/2/  FOR A CONCISE HISTORY OF TESTIMONIAL COMPULSION PRIOR TO THE
ADOPTION OF OUR CONSTITUTION, SEE 8 J.WIGMORE, EVIDENCE 2190 (J.
MCNAUGHTON REV. 1961).  SEE ULLMANN V. UNITED STATES, 350 U.S. 422, 439
N. 15 (1956); BLAIR V. UNITED STATES, 250 U.S. 273 (1919). 

/3/  STATUTE OF ELIZABETH, 5 ELIZ.  1, C. 9, SEC. 12 (1562). 

/4/  COUNTESS OF SHREWSBURY'S CASE, 2 HOW.ST.TR. 769, 778 (1612). 

/5/  SEE THE PARLIAMENTARY DEBATE ON THE BILL TO INDEMNIFY EVIDENCE,
PARTICULARLY THE REMARKS OF THE DUKE OF ARGYLE AND LORD CHANCELLOR
HARDWICKE, REPORTED IN 12 T. HANSARD, PARLIAMENTARY HISTORY OF ENGLAND
675, 693 (1812).  SEE ALSO PIEMONTE V. UNITED STATES, 367 U.S. 556, 559
N. 2 (1961); ULLMANN V. UNITED STATES, SUPRA, AT 439 N. 15; BROWN V.
WALKER, 161 U.S. 591, 600 (1896). 

/6/  1 STAT. 73, 88-89.     /7/  SEE BLAIR V. UNITED STATES, SUPRA,
AT 281; 8 WIGMORE, SUPRA, N. 2, 2192, 2197. 

/8/  SEE MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 55 (1964). 

/9/  SEE ULLMANN V. UNITED STATES, 350 U.S.,AT 426; E. GRISWOLD, THE
FIFTH AMENDMENT TODAY 7 (1955). 

/10/  MURPHY V. WATERFRONT COMM'N, SUPRA, AT 94 (WHITE, J.,
CONCURRING); MCCARTHY V. ARNDSTEIN, 266 U.S. 34, 40 (1924); UNITED
STATES V. SALINE BANK, 1 PET. 100 (1828); CF. GARDNER V. BRODERICK, 392
U.S. 273 (1968). 

/11/  HOFFMAN V. UNITED STATES, 341 U.S. 479, 486 (1951); BLAU V.
UNITED STATES, 340 U.S. 159 (1950); MASON V. UNITED STATES, 244 U.S.
362, 365 (1917). 

/12/  SEE, E.G., MIRANDA V. ARIZONA, 384 U.S. 436, 443-444 (1966);
BOYD V. UNITED STATES, 116 U.S. 616, 635 (1886). 

/13/  SOON AFTER THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION
BECAME FIRMLY ESTABLISHED IN LAW, IT WAS RECOGNIZED THAT THE PRIVILEGE
DID NOT APPLY WHEN IMMUNITY, OR "INDEMNITY," IN THE ENGLISH USAGE, HAD
BEEN GRANTED.  SEE L. LEVY, ORIGINS OF THE FIFTH AMENDMENT 328, 495
(1968).  PARLIAMENT ENACTED AN IMMUNITY STATUTE IN 1710 DIRECTED
AGAINST ILLEGAL GAMBLING, 9 ANNE, C. 14, SECS. 3-4, WHICH BECAME THE
MODEL FOR AN IDENTICAL IMMUNITY STATUTE ENACTED IN 1774 BY THE COLONIAL
LEGISLATURE OF NEW YORK.  LAW OF MAR. 9, 1774, C. 1651, 5 COLONIAL LAWS
OF NEW YORK 621, 623 (1894).  THESE STATUTES PROVIDED THAT THE LOSER
COULD SUE THE WINNER, WHO WAS COMPELLED TO ANSWER THE LOSER'S CHARGES. 
AFTER THE WINNER RESPONDED AND RETURNED HIS ILL-GOTTEN GAINS, HE WAS
"ACQUITTED, INDEMNIFIED (IMMUNIZED) AND DISCHARGED FROM ANY FURTHER OR
OTHER PUNISHMENT, FORFEITURE OR PENALTY, WHICH HE . . . MAY HAVE
INCURRED BY THE PLAYING FOR, AND WINNING SUCH MONEY . . . . "  9 ANNE,
C. 14, SEC. 4 (1710); LAW OF MAR. 9, 1774, C. 1651, 5 COLONIAL LAWS OF
NEW YORK, AT 623. 

ANOTHER NOTABLE INSTANCE OF THE EARLY USE OF IMMUNITY LEGISLATION IS
THE 1725 IMPEACHMENT TRIAL OF LORD CHANCELLOR MACCLESFIELD.  THE LORD
CHANCELLOR WAS ACCUSED BY THE HOUSE OF COMMONS OF THE SALE OF PUBLIC
OFFICES AND APPOINTMENTS.  IN ORDER TO COMPEL THE TESTIMONY OF MASTERS
IN CHANCERY WHO HAD ALLEGEDLY PURCHASED THEIR OFFICES FROM THE LORD
CHANCELLOR, AND WHO COULD INCRIMINATE THEMSELVES BY SO TESTIFYING,
PARLIAMENT ENACTED A STATUTE GRANTING IMMUNITY TO PERSONS THEN HOLDING
OFFICE AS MASTERS IN CHANCERY.  LORD CHANCELLOR MACCLESFIELD'S TRIAL,
16 HOW.ST.TR. 767, 1147 (1725).  SEE 8 WIGMORE, SUPRA, N. 2, 2281, AT
492.  SEE ALSO BISHOP ATTERBURY'S TRIAL, 16 HOW.ST.TR. 323, 604-605
(1723).  THE LEGISLATURES IN COLONIAL PENNSYLVANIA AND NEW YORK ENACTED
IMMUNITY LEGISLATION IN THE 18TH CENTURY.  SEE, E.G., RESOLUTION OF
JAN. 6, 1758, IN VOTES AND PROCEEDINGS OF THE HOUSE OF REPRESENTATIVES
OF THE PROVINCE OF PENNSYLVANIA (1682-1776), 6 PENNSYLVANIA ARCHIVES
(8TH SERIES) 4679 (C. HOBAN ED. 1935); LAW OF MAR. 24, 1772, C. 1542, 5
COLONIAL LAWS OF NEW YORK 351, 353-354; LAW OF MAR. 9, 1774, C. 1651,
ID., AT 621, 623; LAW OF MAR. 9, 1774, C. 1655, ID., AT 639, 641-642. 
SEE GENERALLY L. LEVY, ORIGINS OF THE FIFTH AMENDMENT 359, 384-385,
389, 402-403 (1968).  FEDERAL IMMUNITY STATUTES HAVE EXISTED SINCE
1857.  ACT OF JAN. 24, 1857, 11 STAT. 155.  FOR A HISTORY OF THE
VARIOUS FEDERAL IMMUNITY STATUTES, SEE COMMENT, THE FEDERAL WITNESS
IMMUNITY ACTS IN THEORY AND PRACTICE:  TREADING THE CONSTITUTIONAL
TIGHTROPE, 72 YALE L.J. 1568 (1963); WENDEL, COMPULSORY IMMUNITY
LEGISLATION AND THE FIFTH AMENDMENT PRIVILEGE:  NEW DEVELOPMENTS AND
NEW CONFUSION, 10 ST.LOUIS U.L.REV.  327 (1966); AND NATIONAL
COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, WORKING PAPERS, 1406
1411 (1970). 

/14/  SEE, E.G., RESOLUTION OF JAN. 6, 1758, N. 13, SUPRA, 6
PENNSYLVANIA ARCHIVES (8TH SERIES) 4679 (C. HOBAN ED. 1935); LAW OF
MAR. 24, 1772, C. 1542, 5 COLONIAL LAWS OF NEW YORK 351, 354; LAW OF
MAR. 9, 1774, C. 1655, ID., AT 639, 642.  BISHOP ATTERBURY'S TRIAL,
SUPRA, FOR WHICH THE HOUSE OF COMMONS PASSED IMMUNITY LEGISLATION, WAS
A PROSECUTION FOR TREASONABLE CONSPIRACY.  SEE ID., AT 604-605; 8
WIGMORE, SUPRA, N. 2, 2281, AT 492 N. 2.  LORD CHANCELLOR
MACCLESFIELD'S TRIAL, SUPRA, FOR WHICH PARLIAMENT PASSED IMMUNITY
LEGISLATION, WAS A PROSECUTION FOR POLITICAL BRIBERY INVOLVING THE SALE
OF PUBLIC OFFICES AND APPOINTMENTS.  SEE ID., AT 1147.  THE FIRST
FEDERAL IMMUNITY STATUTE WAS ENACTED TO FACILITATE AN INVESTIGATION OF
CHARGES OF CORRUPTION AND VOTE BUYING IN THE HOUSE OF REPRESENTATIVES. 
SEE COMMENT, N. 13, SUPRA, 72 YALE L.J.,AT 1571. 

/15/  SEE 8 WIGMORE, SUPRA, N. 2, 2281, AT 492.  MR. JUSTICE WHITE
NOTED IN HIS CONCURRING OPINION IN MURPHY V. WATERFRONT COMM'N, 378
U.S.,AT 92, THAT IMMUNITY STATUTES "HAVE FOR MORE THAN A CENTURY BEEN
RESORTED TO FOR THE INVESTIGATION OF MANY OFFENSES, CHIEFLY THOSE WHOSE
PROOF AND PUNISHMENT WERE OTHERWISE IMPRACTICABLE, SUCH AS POLITICAL
BRIBERY, EXTORTION, GAMBLING, CONSUMER FRAUDS, LIQUOR VIOLATIONS,
COMMERCIAL LARCENY, AND VARIOUS FORMS OF RACKETEERING."  ID., AT 94
95.  SEE N. 14, SUPRA. 

/16/  SEE COMMENT, N. 13, SUPRA, 72 YALE L.J.,AT 1576. 

/17/  FOR A LISTING OF THESE STATUTES, SEE NATIONAL COMMISSION ON
REFORM OF FEDERAL CRIMINAL LAWS, WORKING PAPERS, 1444-1445 (1970). 

/18/  FOR A LISTING OF THESE STATUTES, SEE 8 WIGMORE, SUPRA, N. 2,
2281, AT 495 N. 11. 

/19/  SEE, E.G., 8 J.WIGMORE, EVIDENCE 2281, AT 501 (3D ED. 1940); 8
WIGMORE, SUPRA, N. 2, 2281, AT 496. 

/20/  SEE HALE V. HENKEL, 201 U.S. 43, 70 (1906); BROWN V. WALKER,
161 U.S.,AT 610. 

/21/  THIS STATEMENT WAS MADE WITH SPECIFIC REFERENCE TO THE
COMPULSORY TESTIMONY ACT OF 1893, 27 STAT. 443, THE MODEL FOR ALMOST
ALL FEDERAL IMMUNITY STATUTES PRIOR TO THE ENACTMENT OF THE STATUTE
UNDER CONSIDERATION IN THIS CASE.  SEE MURPHY V. WATERFRONT COMM'N, 378
U.S.,AT 95 (WHITE, J., CONCURRING). 

/22/  ACCORD, GARDNER V. BRODERICK, 392 U.S.,AT 276; MURPHY V.
WATERFRONT COMM'N, SUPRA; MCCARTHY V. ARNDSTEIN, 266 U.S.,AT 42
(BRANDEIS, J.); HEIKE V. UNITED STATES, 227 U.S. 131, 142 (1913)
(HOLMES, J.). 

/23/  FOR OTHER PROVISIONS OF THE 1970 ACT RELATIVE TO IMMUNITY OF
WITNESSES, SEE 18 U.S.C. 6001-6005. 

/24/  SEE, E.G., MURPHY V. WATERFRONT COMM'N, SUPRA, AT 54, 78;
COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 585 (1892). 

/25/  SEE PICCIRILLO V. NEW YORK, 400 U.S. 548 (1971). 

/26/  15 STAT. 37. 

/27/  SEE COUNSELMAN V. HITCHCOCK, SUPRA, AT 560. 

/28/  IN RE COUNSELMAN, 44 F. 268 (CCND ILL. 1890). 

/29/  COUNSELMAN V. HITCHCOCK, SUPRA, AT 564. 

/30/  PRECISELY, THE COURT HELD "THAT LEGISLATION CANNOT ABRIDGE A
CONSTITUTIONAL PRIVILEGE, AND THAT IT CANNOT REPLACE OR SUPPLY ( ) ONE,
AT LEAST UNLESS IT IS SO BROAD AS TO HAVE THE SAME EXTENT IN SCOPE AND
EFFECT."  ID., AT 585.  SEE MURPHY V. WATERFRONT COMM'N, SUPRA, AT 54,
78. 

/31/  COUNSELMAN WAS DECIDED JAN. 11, 1892.  SENATOR CULLOM
INTRODUCED THE NEW BILL ON JAN. 27, 1892.  23 CONG.REC.  573. 

/32/  23 CONG.REC.  63333. 

/33/  ACT OF FEB. 11, 1893, 27 STAT. 443, REPEALED BY THE ORGANIZED
CRIME CONTROL ACT OF 1970, PUB. L. NO. 91-452, SEC. 245, 84 STAT. 931. 

/34/  SEE THE REMARKS OF SENATOR CULLOM, 23 CONG.REC.  573, 63333,
AND CONGRESSMAN WISE, WHO INTRODUCED THE BILL IN THE HOUSE.  24
CONG.REC.  503.  SEE SHAPIRO V. UNITED STATES, 335 U.S. 1, 28-29 AND N.
36 (1948). 

/35/  ULLMANN V. UNITED STATES, 350 U.S.,AT 438; SHAPIRO V. UNITED
STATES, SUPRA, AT 6.  THERE WAS ONE MINOR EXCEPTION.  SEE PICCIRILLO V.
NEW YORK, 400 U.S.,AT 571 AND N. 11 (BRENNAN, J., DISSENTING);
ARNDSTEIN V. MCCARTHY, 254 U.S. 71, 73 (1920). 

/36/  THE STATUTE IS A PRODUCT OF CAREFUL STUDY AND CONSIDERATION BY
THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, AS WELL AS
BY CONGRESS.  THE COMMISSION RECOMMENDED LEGISLATION TO REFORM THE
FEDERAL IMMUNITY LAWS.  THE RECOMMENDATION SERVED AS THE MODEL FOR THIS
STATUTE.  IN COMMENTING ON ITS PROPOSAL IN A SPECIAL REPORT TO THE
PRESIDENT, THE COMMISSION SAID: 

"WE ARE SATISFIED THAT OUR SUBSTITUTION OF IMMUNITY FROM USE FOR
IMMUNITY FROM PROSECUTION MEETS CONSTITUTIONAL REQUIREMENTS FOR
OVERCOMING THE CLAIM OF PRIVILEGE.  IMMUNITY FROM USE IS THE ONLY
CONSEQUENCE FLOWING FROM A VIOLATION OF THE INDIVIDUAL'S CONSTITUTIONAL
RIGHT TO BE PROTECTED FROM UNREASONABLE SEARCHES AND SEIZURES, HIS
CONSTITUTIONAL RIGHT TO COUNSEL, AND HIS CONSTITUTIONAL RIGHT NOT TO BE
COERCED INTO CONFESSING.  THE PROPOSED IMMUNITY IS THUS OF THE SAME
SCOPE AS THAT FREQUENTLY, EVEN THOUGH UNINTENTIONALLY, CONFERRED AS THE
RESULT OF CONSTITUTIONAL VIOLATIONS BY LAW ENFORCEMENT OFFICERS." 
SECOND INTERIM REPORT OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL
CRIMINAL LAWS, MAR. 17, 1969, WORKING PAPERS OF THE COMMISSION, 1446
(1970). 

THE COMMISSION'S RECOMMENDATION WAS BASED IN LARGE PART ON A
COMPREHENSIVE STUDY OF IMMUNITY AND THE RELEVANT DECISIONS OF THIS
COURT PREPARED FOR THE COMMISSION BY PROF. ROBERT G. DIXON, JR., OF THE
GEORGE WASHINGTON UNIVERSITY LAW CENTER, AND TRANSMITTED TO THE
PRESIDENT WITH THE RECOMMENDATIONS OF THE COMMISSION.  SEE NATIONAL
COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, WORKING PAPERS, 1405
1444 (1970). 

/37/  SEE S. REP. NO. 91-617, PP. 51-56, 145 (1969); H.R. REP. NO.
91-1549, P. 42 (1970). 

/38/  ULLMANN V. UNITED STATES, 350 U.S.,AT 438-439, QUOTING BOYD V.
UNITED STATES, 116 U.S.,AT 634.  SEE KNAPP V. SCHWEITZER, 357 U.S. 371,
380 (1958). 

/39/  CF. THE SUPREME COURT, 1963 TERM, 78 HARV.L.REV.  179, 230
(1964).  LANGUAGE SIMILAR TO THE COUNSELMAN DICTUM CAN BE FOUND IN
BROWN V. WALKER, 161 U.S.,AT 594-595, AND HALE V. HENKEL, 201 U.S.,AT
67.  BROWN AND HALE, HOWEVER, INVOLVED STATUTES THAT WERE CLEARLY
SUFFICIENT TO SUPPLANT THE PRIVILEGE AGAINST SELF-INCRIMINATION, AS
THEY PROVIDED FULL IMMUNITY FROM PROSECUTION "FOR OR ON ACCOUNT OF ANY
TRANSACTION, MATTER OR THING, CONCERNING WHICH HE MAY TESTIFY, OR
PRODUCE EVIDENCE . . . . "  161 U.S.,AT 594; 201 U.S.,AT 66.  THE SAME
IS TRUE OF SMITH V. UNITED STATES, 337 U.S. 137, 141, 146 (1949), AND
UNITED STATES V. MONIA, 317 U.S. 424, 425, 428 (1943).  IN ALBERTSON V.
SUBVERSIVE ACTIVITIES CONTROL BOARD, 382 U.S. 70 (1965), SOME OF THE
COUNSELMAN LANGUAGE URGED UPON US BY PETITIONERS WAS AGAIN QUOTED.  BUT
ALBERTSON, LIKE COUNSELMAN, INVOLVED AN IMMUNITY STATUTE THAT WAS HELD
INSUFFICIENT FOR FAILURE TO PROHIBIT THE USE OF EVIDENCE DERIVED FROM
COMPELLED ADMISSIONS AND THE USE OF COMPELLED ADMISSIONS AS AN
"INVESTIGATORY LEAD."  ID., AT 80. 

IN ADAMS V. MARYLAND, 347 U.S. 179, 182 (1954), AND IN UNITED STATES
V. MURDOCK, 284 U.S. 141, 149 (1931), THE COUNSELMAN DICTUM WAS
REFERRED TO AS THE PRINCIPLE OF COUNSELMAN.  THE REFERENCES WERE IN THE
CONTEXT OF ANCILLARY POINTS NOT ESSENTIAL TO THE DECISIONS OF THE
COURT.  THE ADAMS COURT DID NOTE, HOWEVER, THAT THE FIFTH AMENDMENT
PRIVILEGE PROHIBITS THE "USE" OF COMPELLED SELF-INCRIMINATORY
TESTIMONY.  347 U.S.,AT 181.  IN ANY EVENT, THE COURT IN ULLMANN V.
UNITED STATES, 350 U.S.,AT 436-437, RECOGNIZED THAT THE RATIONALE OF
COUNSELMAN WAS THAT THE COUNSELMAN STATUTE WAS INSUFFICIENT FOR FAILURE
TO PROHIBIT THE USE OF EVIDENCE DERIVED FROM COMPELLED TESTIMONY.  SEE
ALSO ARNDSTEIN V. MCCARTHY, 254 U.S.,AT 73. 

/40/  THE WATERFRONT COMMISSION OF NEW YORK HARBOR IS A BISTATE BODY
ESTABLISHED UNDER AN INTERSTATE COMPACT APPROVED BY CONGRESS.  67 STAT.
541. 

/41/  IN RE WATERFRONT COMM'N OF N.Y. HARBOR, 39 N.J. 436, 189 A.2D
36 (1963). 

/42/  RECONSIDERATION OF THE RULE THAT THE FIFTH AMENDMENT PRIVILEGE
DOES NOT PROTECT A WITNESS IN ONE JURISDICTION AGAINST BEING COMPELLED
TO GIVE TESTIMONY THAT COULD BE USED TO CONVICT HIM IN ANOTHER
JURISDICTION WAS MADE NECESSARY BY THE DECISION IN MALLOY V. HOGAN, 378
U.S. 1 (1964), IN WHICH THE COURT HELD THE FIFTH AMENDMENT PRIVILEGE
APPLICABLE TO THE STATES THROUGH THE FOURTEENTH AMENDMENT.  MURPHY V.
WATERFRONT COMM'N, 378 U.S.,AT 57. 

/43/  AT THIS POINT THE COURT ADDED THE FOLLOWING NOTE:  "ONCE A
DEFENDANT DEMONSTRATES THAT HE HAS TESTIFIED, UNDER A STATE GRANT OF
IMMUNITY, TO MATTERS RELATED TO THE FEDERAL PROSECUTION, THE FEDERAL
AUTHORITIES HAVE THE BURDEN OF SHOWING THAT THEIR EVIDENCE IS NOT
TAINTED BY ESTABLISHING THAT THEY HAD AN INDEPENDENT, LEGITIMATE SOURCE
FOR THE DISPUTED EVIDENCE."  ID., AT 79 N. 18.  IF TRANSACTIONAL
IMMUNITY HAD BEEN DEEMED TO BE THE "CONSTITUTIONAL RULE" THERE COULD BE
NO FEDERAL PROSECUTION. 

/44/  SEE, E.G., CALIFORNIA V. BYERS, 402 U.S. 424, 442 N. 3 (1971)
(HARLAN, J., CONCURRING IN JUDGMENT); UNITED STATES V. FREED, 401 U.S.
601, 606 N. 11 (1971); PICCIRILLO V. NEW YORK, 400 U.S. 548 (1971);
STEVENS V. MARKS, 383 U.S. 234, 244-245 (1966). 

/45/  E.G., MURPHY V. WATERFRONT COMM'N, SUPRA; ULLMANN V. UNITED
STATES, SUPRA; SMITH V. UNITED STATES, 337 U.S. 137 (1949); UNITED
STATES V. MONIA, 317 U.S. 424 (1943); HALE V. HENKEL, 201 U.S. 43
(1906); JACK V. KANSAS, 199 U.S. 372 (1905); BROWN V. WALKER, 161 U.S.
591 (1896).  SEE ALSO N. 35, SUPRA. 

/46/  E.G., ALBERTSON V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 382
U.S.,AT 80; ARNDSTEIN V. MCCARTHY, 254 U.S.,AT 73.     /47/  IN MALLOY
V. HOGAN, 378 U.S.,AT 10-11, THE COURT HELD THAT THE SAME STANDARDS
WOULD DETERMINE THE EXTENT OR SCOPE OF THE PRIVILEGE IN STATE AND IN
FEDERAL PROCEEDINGS, BECAUSE THE SAME SUBSTANTIVE GUARANTEE OF THE BILL
OF RIGHTS IS INVOLVED.  THE MURPHY COURT EMPHASIZED THAT THE SCOPE OF
THE PRIVILEGE IS THE SAME IN STATE AND IN FEDERAL PROCEEDINGS.  MURPHY
V. WATERFRONT COMM'N, 378 U.S.,AT 79. 

/48/  IBID. 

/49/  AS THE COURT NOTED IN GARDNER V. BRODERICK, 392 U.S.,AT 276,
"(ANSWERS MAY BE COMPELLED REGARDLESS OF THE PRIVILEGE IF THERE IS
IMMUNITY FROM FEDERAL AND STATE USE OF THE COMPELLED TESTIMONY OR ITS
FRUITS IN CONNECTION WITH A CRIMINAL PROSECUTION AGAINST THE PERSON
TESTIFYING." 

/50/  SEE, E.G., ALBERTSON V. SUBVERSIVE ACTIVITIES CONTROL BOARD,
382 U.S.,AT 80. 

/51/  SEE MURPHY V. WATERFRONT COMM'N, 378 U.S.,AT 102-104 (WHITE,
J., CONCURRING). 

/52/  ADAMS V. MARYLAND, 347 U.S.,AT 181; BRAM V. UNITED STATES, 168
U.S. 532, 542 (1897). 

/53/  AS MR. JUSTICE WHITE, CONCURRING IN MURPHY, POINTED OUT: 

"A COERCED CONFESSION IS AS REVEALING OF LEADS AS TESTIMONY GIVEN IN
EXCHANGE FOR IMMUNITY AND INDEED IS EXCLUDED IN PART BECAUSE IT IS
COMPELLED INCRIMINATION IN VIOLATION OF THE PRIVILEGE.  MALLOY V.
HOGAN, (378 U.S. 1, 7-8); SPANO V. NEW YORK, 360 U.S. 315; BRAM V.
UNITED STATES, 168 U.S. 532."  378 U.S.,AT 103. 

/54/  JACKSON V. DENNO, 378 U.S. 368 (1964). 

/55/  SEE SUPRA, AT 460; BRIEF FOR THE UNITED STATES 37; CF. CHAPMAN
V. CALIFORNIA, 386 U.S. 18 (1967). 

/56/  JACKSON V. DENNO, SUPRA. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE SELF-INCRIMINATION CLAUSE SAYS:  "NO PERSON . . . SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  I SEE
NO ANSWER TO THE PROPOSITION THAT HE IS SUCH A WITNESS WHEN ONLY "USE"
IMMUNITY IS GRANTED. 

MY VIEWS ON THE QUESTION OF THE SCOPE OF IMMUNITY THAT IS NECESSARY
TO FORCE A WITNESS TO GIVE UP HIS GUARANTEE AGAINST SELF-INCRIMINATION
CONTAINED IN THE FIFTH AMENDMENT ARE SO WELL KNOWN, SEE ULLMANN V.
UNITED STATES, 350 U.S. 422, 440 (DISSENTING), AND PICCIRILLO V. NEW
YORK, 400 U.S. 548, 549 (DISSENTING), THAT I NEED NOT WRITE AT LENGTH. 

IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 586, THE COURT ADOPTED THE
TRANSACTIONAL IMMUNITY TEST:  "IN VIEW OF THE CONSTITUTIONAL PROVISION,
A STATUTORY ENACTMENT, TO BE VALID, MUST AFFORD ABSOLUTE IMMUNITY
AGAINST FUTURE PROSECUTION FOR THE OFFENSE TO WHICH THE QUESTION
RELATES."  ID., AT 586.  IN BROWN V. WALKER, 161 U.S. 591, A CASE
INVOLVING ANOTHER FEDERAL PROSECUTION, THE IMMUNITY STATUTE PROVIDED
THAT THE WITNESS WOULD BE PROTECTED "ON ACCOUNT OF ANY TRANSACTION . .
. CONCERNING WHICH HE MAY TESTIFY."  ID., AT 594.  THE COURT HELD THAT
THE IMMUNITY OFFERED WAS COTERMINOUS WITH THE PRIVILEGE AND THAT THE
WITNESS COULD THEREFORE BE COMPELLED TO TESTIFY, A RULING THAT MADE
"TRANSACTIONAL IMMUNITY" PART OF THE FABRIC OF OUR CONSTITUTIONAL LAW. 
ULLMANN V. UNITED STATES, SUPRA, AT 438. 

THIS COURT, HOWEVER, APPARENTLY BELIEVES THAT COUNSELMAN AND ITS
PROGENY WERE OVERRULED SUB SILENTIO IN MURPHY V. WATERFRONT COMM'N, 378
U.S. 52.  MURPHY INVOLVED STATE WITNESSES, GRANTED TRANSACTIONAL
IMMUNITY UNDER STATE LAW, WHO REFUSED TO TESTIFY FOR FEAR OF SUBSEQUENT
FEDERAL PROSECUTION.  WE HELD THAT THE TESTIMONY IN QUESTION COULD BE
COMPELLED, BUT THAT THE FEDERAL GOVERNMENT WOULD BE BARRED FROM USING
ANY OF THE TESTIMONY, OR ITS FRUITS, IN A SUBSEQUENT FEDERAL
PROSECUTION. 

MURPHY OVERRULED, NOT COUNSELMAN, BUT FELDMAN V. UNITED STATES, 322
U.S. 487, WHICH HAD HELD "THAT ONE JURISDICTION WITHIN OUR FEDERAL
STRUCTURE MAY COMPEL A WITNESS TO GIVE TESTIMONY WHICH COULD BE USED TO
CONVICT HIM OF A CRIME IN ANOTHER JURISDICTION."  MURPHY V. WATERFRONT
COMM'N, SUPRA, AT 77.  BUT COUNSELMAN, AS THE MURPHY COURT RECOGNIZED,
"SAID NOTHING ABOUT THE PROBLEM OF INCRIMINATION UNDER THE LAW OF
ANOTHER SOVEREIGN."  ID., AT 72.  THAT PROBLEM IS ONE OF FEDERALISM, AS
TO REQUIRE TRANSACTIONAL IMMUNITY BETWEEN JURISDICTIONS MIGHT 

"DEPRIVE A STATE OF THE RIGHT TO PROSECUTE A VIOLATION OF ITS
CRIMINAL LAW ON THE BASIS OF ANOTHER STATE'S GRANT OF IMMUNITY (A
RESULT WHICH) WOULD BE GRAVELY IN DEROGATION OF ITS SOVEREIGNTY AND
OBSTRUCTIVE OF ITS ADMINISTRATION OF JUSTICE."  UNITED STATES EX REL.
CATENA V. ELIAS, 449 F.2D 40, 44 (CA3 1971).  MOREOVER, AS MR. JUSTICE
BRENNAN HAS POINTED OUT, THE THREAT OF FUTURE PROSECUTION 

"SUBSTANTIAL WHEN A SINGLE JURISDICTION BOTH COMPELS INCRIMINATING
TESTIMONY AND BRINGS A LATER PROSECUTION, MAY FADE WHEN THE
JURISDICTION BRINGING THE PROSECUTION DIFFERS FROM THE JURISDICTION
THAT COMPELLED THE TESTIMONY.  CONCERN OVER INFORMAL AND UNDETECTED
EXCHANGE OF INFORMATION IS ALSO CORRESPONDINGLY LESS WHEN TWO DIFFERENT
JURISDICTIONS ARE INVOLVED."  PICCIRILLO V. NEW YORK, 400 U.S.,AT 568
(DISSENTING). 

NONE OF THESE FACTORS APPLY WHEN THE THREAT OF PROSECUTION IS FROM
THE JURISDICTION SEEKING TO COMPEL THE TESTIMONY, WHICH IS THE
SITUATION WE FACED IN COUNSELMAN, AND WHICH WE FACE TODAY.  THE
IRRELEVANCE OF MURPHY TO SUCH A SITUATION WAS MADE CLEAR IN ALBERTSON
V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 382 U.S. 70, IN WHICH THE COURT
STRUCK DOWN AN IMMUNITY STATUTE BECAUSE IT FAILED TO MEASURE UP TO THE
STANDARDS SET FORTH IN COUNSELMAN.  INASMUCH AS NO INTERJURISDICTIONAL
PROBLEMS PRESENTED THEMSELVES, MURPHY WAS NOT EVEN CITED.  THAT IS
FURTHER PROOF THAT MURPHY WAS NOT THOUGHT SIGNIFICANTLY TO UNDERCUT
COUNSELMAN.  /1/  SEE STEVENS V. MARKS, 383 U.S. 234, 244-245; ID., AT
249-250 (HARLAN, J., CONCURRING AND DISSENTING); MANSFIELD, THE
ALBERTSON CASE:  CONFLICT BETWEEN THE PRIVILEGE AGAINST SELF
INCRIMINATION AND THE GOVERNMENT'S NEED FOR INFORMATION, 1966
SUPP.CT.REV.  103, 164. 

IF, AS SOME HAVE THOUGHT, THE BILL OF RIGHTS CONTAINED ONLY
"COUNSELS OF MODERATION" FROM WHICH COURTS AND LEGISLATURES COULD
DEVIATE ACCORDING TO THEIR CONSCIENCE OR DISCRETION, THEN TODAY'S
CONTRACTION OF THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT
WOULD BE UNDERSTANDABLE.  BUT THAT HAS NOT BEEN TRUE, STARTING WITH
CHIEF JUSTICE MARSHALL'S OPINION IN UNITED STATES V. BURR, 25 F.CAS. 
38 (NO. 14692E) (CC VA.), WHERE HE RULED THAT THE REACH OF THE FIFTH
AMENDMENT WAS SO BROAD AS TO MAKE THE PRIVILEGE APPLICABLE WHEN THERE
WAS A MERE POSSIBILITY OF A CRIMINAL CHARGE BEING MADE. 

THE COURT SAID IN HALE V. HENKEL, 201 U.S. 43, 67, THAT "IF THE
CRIMINALITY HAS ALREADY BEEN TAKEN AWAY, THE AMENDMENT CEASES TO
APPLY."  IN OTHER WORDS, THE IMMUNITY GRANTED IS ADEQUATE IF IT
OPERATES AS A COMPLETE PARDON FOR THE OFFENSE.  BROWN V. WALKER, 161
U.S.,AT 595.  THAT IS THE TRUE MEASURE OF THE SELF-INCRIMINATION
CLAUSE.  AS MR. JUSTICE BRENNAN HAS STATED:  "(USE IMMUNITY LITERALLY
MISSES HALF THE POINT OF THE PRIVILEGE, FOR IT PERMITS THE COMPULSION
WITHOUT REMOVING THE CRIMINALITY."  PICCIRILLO V. NEW YORK, SUPRA, AT
567 (DISSENTING). 

AS MR. JUSTICE BRENNAN HAS ALSO SAID: 

     "TRANSACTIONAL IMMUNITY . . . PROVIDES THE INDIVIDUAL WITH AN

  ASSURANCE THAT HE IS NOT TESTIFYING ABOUT MATTERS FOR WHICH HE

MAY LATER BE PROSECUTED.  NO QUESTION ARISES OF TRACING THE USE

  OR NON-USE OF INFORMATION GLEANED FROM THE WITNESS' COMPELLED

  TESTIMONY.  THE SOLE QUESTION PRESENTED TO A COURT IS WHETHER THE

  SUBSEQUENT PROSECUTION IS RELATED TO THE SUBSTANCE OF THE

  COMPELLED TESTIMONY.  BOTH WITNESS AND GOVERNMENT KNOW PRECISELY

  WHERE THEY STAND.  RESPECT FOR LAW IS FURTHERED WHEN THE

  INDIVIDUAL KNOWS HIS POSITION AND IS NOT LEFT SUSPICIOUS THAT A

  LATER PROSECUTION WAS ACTUALLY THE FRUIT OF HIS COMPELLED

  TESTIMONY."  400 U.S.,AT 568-569 (DISSENTING). 

WHEN WE ALLOW THE PROSECUTION TO OFFER ONLY "USE" IMMUNITY WE ALLOW
IT TO GRANT FAR LESS THAN IT HAS TAKEN AWAY.  FOR WHILE THE PRECISE
TESTIMONY THAT IS COMPELLED MAY NOT BE USED, LEADS FROM THAT TESTIMONY
MAY BE PURSUED AND USED TO CONVICT THE WITNESS.  /2/  MY VIEW IS THAT
THE FRAMERS PUT IT BEYOND THE POWER OF CONGRESS TO COMPEL ANYONE TO
CONFESS HIS CRIMES.  THE SELF-INCRIMINATION CLAUSE CREATES, AS I HAVE
SAID BEFORE, "THE FEDERALLY PROTECTED RIGHT OF SILENCE," MAKING IT
UNCONSTITUTIONAL TO USE A LAW "TO PRY OPEN ONE'S LIPS AND MAKE HIM A
WITNESS AGAINST HIMSELF."  ULLMANN V. UNITED STATES, 350 U.S.,AT 446
(DISSENTING).  THAT IS INDEED ONE OF THE CHIEF PROCEDURAL GUARANTEES IN
OUR ACCUSATORIAL SYSTEM.  GOVERNMENT ACTS IN AN IGNOBLE WAY WHEN IT
STOOPS TO THE END WHICH WE AUTHORIZE TODAY. 

I WOULD ADHERE TO COUNSELMAN V. HITCHCOCK AND HOLD THAT THIS ATTEMPT
TO DILUTE THE SELF-INCRIMINATION CLAUSE IS UNCONSTITUTIONAL. 

/1/  IN ALBERTSON V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 382 U.S.
70, THE COURT WAS FACED WITH A FIFTH AMENDMENT CHALLENGE TO THE
COMMUNIST REGISTRATION PROVISION OF THE SUBVERSIVE ACTIVITIES CONTROL
ACT OF 1950, 64 STAT. 987.  WE HELD THAT THE PROVISION VIOLATED THE
PROSPECTIVE REGISTRANT'S PRIVILEGE AGAINST SELF-INCRIMINATION, AND THAT
THE REGISTRATION PROVISION WAS NOT SAVED BY A SO-CALLED "IMMUNITY
STATUTE" (SEC. 4(F)) WHICH PROHIBITED THE INTRODUCTION INTO EVIDENCE IN
ANY CRIMINAL PROSECUTION OF THE FACT OF REGISTRATION UNDER THE ACT. 
THE COURT'S ANALYSIS OF THIS IMMUNITY PROVISION RESTED SOLELY ON
COUNSELMAN: 

"IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, DECIDED IN 1892, THE
COURT HELD 'THAT NO (IMMUNITY) STATUTE WHICH LEAVES THE PARTY OR
WITNESS SUBJECT TO PROSECUTION AFTER HE ANSWERS THE CRIMINATING
QUESTION PUT TO HIM, CAN HAVE THE EFFECT OF SUPPLANTING THE PRIVILEGE .
. . ,' AND THAT SUCH A STATUTE IS VALID ONLY IF IT SUPPLIES 'A COMPLETE
PROTECTION FROM ALL THE PERILS AGAINST WHICH THE CONSTITUTIONAL
PROHIBITION WAS DESIGNED TO GUARD . . . ' BY AFFORDING 'ABSOLUTE
IMMUNITY AGAINST FUTURE PROSECUTION FOR THE OFFENCE TO WHICH THE
QUESTION RELATES.'  ID., AT 585-586.  MEASURED BY THESE STANDARDS, THE
IMMUNITY GRANTED BY SEC. 4(F) IS NOT COMPLETE."  382 U.S.,AT 80. 
(EMPHASIS ADDED.) 

THUS, THE ALBERTSON COURT, WHICH COULD HAVE STRUCK THE STATUTE BY
EMPLOYING THE TEST APPROVED TODAY, WENT WELL BEYOND, AND MEASURED THE
STATUTE SOLELY AGAINST THE MORE RESTRICTIVE STANDARDS OF COUNSELMAN. 

/2/  AS MR. JUSTICE MARSHALL POINTS OUT, POST, AT 469, IT IS FUTILE
TO EXPECT THAT A BAN ON USE OR DERIVATIVE USE OF COMPELLED TESTIMONY
CAN BE ENFORCED. 

IT IS ALSO POSSIBLE THAT USE IMMUNITY MIGHT ACTUALLY HAVE AN ADVERSE
IMPACT ON THE ADMINISTRATION OF JUSTICE RATHER THAN PROMOTE LAW
ENFORCEMENT.  A WITNESS MIGHT BELIEVE, WITH GOOD REASON, THAT HIS
"IMMUNIZED" TESTIMONY WILL INEVITABLY LEAD TO A FELONY CONVICTION. 
UNDER SUCH CIRCUMSTANCES, RATHER THAN TESTIFY AND AID THE
INVESTIGATION, THE WITNESS MIGHT DECIDE HE WOULD BE BETTER OFF
REMAINING SILENT EVEN IF HE IS JAILED FOR CONTEMPT. 

MR. JUSTICE MARSHALL, DISSENTING. 

TODAY THE COURT HOLDS THAT THE UNITED STATES MAY COMPEL A WITNESS TO
GIVE INCRIMINATING TESTIMONY, AND SUBSEQUENTLY PROSECUTE HIM FOR CRIMES
TO WHICH THAT TESTIMONY RELATES.  I CANNOT BELIEVE THE FIFTH AMENDMENT
PERMITS THAT RESULT.  SEE PICCIRILLO V. NEW YORK, 400 U.S. 548, 552
(1971) (BRENNAN, J., DISSENTING FROM DISMISSAL OF CERTIORARI). 

THE FIFTH AMENDMENT GIVES A WITNESS AN ABSOLUTE RIGHT TO RESIST
INTERROGATION, IF THE TESTIMONY SOUGHT WOULD TEND TO INCRIMINATE HIM. 
A GRANT OF IMMUNITY MAY STRIP THE WITNESS OF THE RIGHT TO REFUSE TO
TESTIFY, BUT ONLY IF IT IS BROAD ENOUGH TO ELIMINATE ALL POSSIBILITY
THAT THE TESTIMONY WILL IN FACT OPERATE TO INCRIMINATE HIM.  IT MUST
PUT HIM IN PRECISELY THE SAME POSITION, VIS-A-VIS THE GOVERNMENT THAT
HAS COMPELLED HIS TESTIMONY, /1/  AS HE WOULD HAVE BEEN IN HAD HE
REMAINED SILENT IN RELIANCE ON THE PRIVILEGE.  ULLMANN V. UNITED
STATES, 350 U.S. 422 (1956); MCCARTHY V. ARNDSTEIN, 266 U.S. 34 (1924);
HALE V. HENKEL, 201 U.S. 43 (1906); BROWN V. WALKER, 161 U.S. 591
(1896); COUNSELMAN V. HITCHCOCK, 142 U.S. 547 (1892). 

THE COURT RECOGNIZES THAT AN IMMUNITY STATUTE MUST BE TESTED BY THAT
STANDARD, THAT THE RELEVANT INQUIRY IS WHETHER IT "LEAVES THE WITNESS
AND THE PROSECUTORIAL AUTHORITIES IN SUBSTANTIALLY THE SAME POSITION AS
IF THE WITNESS HAD CLAIMED THE FIFTH AMENDMENT PRIVILEGE."  ANTE, AT
462.  I ASSUME, MOREOVER, THAT IN THEORY THAT TEST WOULD BE MET BY A
COMPLETE BAN ON THE USE OF THE COMPELLED TESTIMONY, INCLUDING ALL
DERIVATIVE USE, HOWEVER REMOTE AND INDIRECT.  BUT I CANNOT AGREE THAT A
BAN ON USE WILL IN PRACTICE BE TOTAL, IF IT REMAINS OPEN FOR THE
GOVERNMENT TO CONVICT THE WITNESS ON THE BASIS OF EVIDENCE DERIVED FROM
A LEGITIMATE INDEPENDENT SOURCE.  THE COURT ASSERTS THAT THE WITNESS IS
ADEQUATELY PROTECTED BY A RULE IMPOSING ON THE GOVERNMENT A HEAVY
BURDEN OF PROOF IF IT WOULD ESTABLISH THE INDEPENDENT CHARACTER OF
EVIDENCE TO BE USED AGAINST THE WITNESS.  BUT IN LIGHT OF THE
INEVITABLE UNCERTAINTIES OF THE FACTFINDING PROCESS, SEE SPEISER V.
RANDALL, 357 U.S. 513, 525 (1958), A GREATER MARGIN OF PROTECTION IS
REQUIRED IN ORDER TO PROVIDE A RELIABLE GUARANTEE THAT THE WITNESS IS
IN EXACTLY THE SAME POSITION AS IF HE HAD NOT TESTIFIED.  THAT MARGIN
CAN BE PROVIDED OLY BY IMMUNITY FROM PROSECUTION FOR THE OFFENSES TO
WHICH THE TESTIMONY RELATES, I.E., TRANSACTIONAL IMMUNITY. 

I DO NOT SEE HOW IT CAN SUFFICE MERELY TO PUT THE BURDEN OF PROOF ON
THE GOVERNMENT.  FIRST, CONTRARY TO THE COURT'S ASSERTION, THE COURT'S
RULE DOES LEAVE THE WITNESS "DEPENDENT FOR THE PRESERVATION OF HIS
RIGHTS UPON THE INTEGRITY AND GOOD FAITH OF THE PROSECUTING
AUTHORITIES."  ANTE, AT 460.  FOR THE INFORMATION RELEVANT TO THE
QUESTION OF TAINT IS UNIQUELY WITHIN THE KNOWLEDGE OF THE PROSECUTING
AUTHORITIES.  THEY ALONE ARE IN A POSITION TO TRACE THE CHAINS OF
INFORMATION AND INVESTIGATION THAT LEAD TO THE EVIDENCE TO BE USED IN A
CRIMINAL PROSECUTION.  A WITNESS WHO SUSPECTS THAT HIS COMPELLED
TESTIMONY WAS USED TO DEVELOP A LEAD WILL BE HARD PRESSED INDEED TO
FERRET OUT THE EVIDENCE NECESSARY TO PROVE IT.  AND OF COURSE IT IS NO
ANSWER TO SAY HE NEED NOT PROVE IT, FOR THOUGH THE COURT PUTS THE
BURDEN OF PROOF ON THE GOVERNMENT, THE GOVERNMENT WILL HAVE NO
DIFFICULTY IN MEETING ITS BURDEN BY MERE ASSERTION IF THE WITNESS
PRODUCES NO CONTRARY EVIDENCE.  THE GOOD FAITH OF THE PROSECUTING
AUTHORITIES IS THUS THE SOLE SAFEGUARD OF THE WITNESS' RIGHTS.  SECOND,
EVEN THEIR GOOD FAITH IS NOT A SUFFICIENT SAFEGUARD.  FOR THE PATHS OF
INFORMATION THROUGH THE INVESTIGATIVE BUREAUCRACY MAY WELL BE LONG AND
WINDING, AND EVEN A PROSECUTOR ACTING IN THE BEST OF FAITH CANNOT BE
CERTAIN THAT SOMEWHERE IN THE DEPTHS OF HIS INVESTIGATIVE APPARATUS,
OFTEN INCLUDING HUNDREDS OF EMPLOYEES, THERE WAS NOT SOME PROHIBITED
USE OF THE COMPELLED TESTIMONY.  CF. GIGLIO V. UNITED STATES, 405 U.S.
150 (1972); SANTOBELLO V. NEW YORK, 404 U.S. 257 (1971).  THE COURT
TODAY SETS OUT A LOOSE NET TO TRAP TAINTED EVIDENCE AND PREVENT ITS USE
AGAINST THE WITNESS, BUT IT ACCEPTS AN INTOLERABLY GREAT RISK THAT
TAINTED EVIDENCE WILL IN FACT SLIP THROUGH THAT NET. 

IN MY VIEW THE COURT TURNS REASON ON ITS HEAD WHEN IT COMPARES A
STATUTORY GRANT OF IMMUNITY TO THE "IMMUNITY" THAT IS INADVERTENTLY
CONFERRED BY AN UNCONSTITUTIONAL INTERROGATION.  THE EXCLUSIONARY RULE
OF EVIDENCE THAT APPLIES IN THAT SITUATION HAS NOTHING WHATEVER TO DO
WITH THIS CASE.  EVIDENCE OBTAINED THROUGH A COERCIVE INTERROGATION,
LIKE EVIDENCE OBTAINED THROUGH AN ILLEGAL SEARCH, IS EXCLUDED AT TRIAL
BECAUSE THE CONSTITUTION PROHIBITS SUCH METHODS OF GATHERING EVIDENCE. 
THE EXCLUSIONARY RULES PROVIDE A PARTIAL AND INADEQUATE REMEDY TO SOME
VICTIMS OF ILLEGAL POLICE CONDUCT, AND A SIMILARLY PARTIAL AND
INADEQUATE DETERRENT TO POLICE OFFICERS.  AN IMMUNITY STATUTE, ON THE
OTHER HAND, IS MUCH MORE AMBITIOUS THAN ANY EXCLUSIONARY RULE.  IT DOES
NOT MERELY ATTEMPT TO PROVIDE A REMEDY FOR PAST POLICE MISCONDUCT,
WHICH NEVER SHOULD HAVE OCCURRED.  AN IMMUNITY STATUTE OPERATES IN
ADVANCE OF THE EVENT, AND IT AUTHORIZES-- EVEN ENCOURAGES--
INTERROGATION THAT WOULD OTHERWISE BE PROHIBITED BY THE FIFTH
AMENDMENT.  AN IMMUNITY STATUTE THUS DIFFERS FROM AN EXCLUSIONARY RULE
OF EVIDENCE IN AT LEAST TWO CRITICAL RESPECTS. 

FIRST, BECAUSE AN IMMUNITY STATUTE GIVES CONSTITUTIONAL APPROVAL TO
THE RESULTING INTERROGATION, THE GOVERNMENT IS UNDER AN OBLIGATION HERE
TO REMOVE THE DANGER OF INCRIMINATION COMPLETELY AND ABSOLUTELY,
WHEREAS IN THE CASE OF THE EXCLUSIONARY RULES IT MAY BE SUFFICIENT TO
SHIELD THE WITNESS FROM THE FRUITS OF THE ILLEGAL SEARCH OR
INTERROGATION IN A PARTIAL AND REASONABLY ADEQUATE MANNER.  FOR WHEN
ILLEGAL POLICE CONDUCT HAS OCCURRED, THE EXCLUSION OF EVIDENCE DOES NOT
PURPORT TO PURGE THE CONDUCT OF ITS UNCONSTITUTIONAL CHARACTER.  THE
CONSTITUTIONAL VIOLATION REMAINS, AND MAY PROVIDE THE BASIS FOR OTHER
RELIEF, SUCH AS A CIVIL ACTION FOR DAMAGES (SEE 42 U.S.C. 1983 AND
BIVENS V. SIX AGENTS, 403 U.S. 388 (1971)), OR A CRIMINAL PROSECUTION
OF THE RESPONSIBLE OFFICERS (SEE 18 U.S.C. 241-242).  THE CONSTITUTION
DOES NOT AUTHORIZE POLICE OFFICERS TO COERCE CONFESSIONS OR TO INVADE
PRIVACY WITHOUT CAUSE, SO LONG AS NO USE IS MADE OF THE EVIDENCE THEY
OBTAIN.  BUT THIS COURT HAS HELD THAT THE CONSTITUTION DOES AUTHORIZE
THE GOVERNMENT TO COMPEL A WITNESS TO GIVE POTENTIALLY INCRIMINATING
TESTIMONY, SO LONG AS NO INCRIMINATING USE IS MADE OF THE RESULTING
EVIDENCE.  BEFORE THE GOVERNMENT PUTS ITS SEAL OF APPROVAL ON SUCH AN
INTERROGATION, IT MUST PROVIDE AN ABSOLUTELY RELIABLE GUARANTEE THAT IT
WILL NOT USE THE TESTIMONY IN ANY WAY AT ALL IN AID OF PROSECUTION OF
THE WITNESS.  THE ONLY WAY TO PROVIDE THAT GUARANTEE IS TO GIVE THE
WITNESS IMMUNITY FROM PROSECUTION FOR CRIMES TO WHICH HIS TESTIMONY
RELATES. 

SECOND, BECAUSE AN IMMUNITY STATUTE OPERATES IN ADVANCE OF THE
INTERROGATION, THERE IS ROOM TO REQUIRE A BROAD GRANT OF TRANSACTIONAL
IMMUNITY WITHOUT IMPERILING LARGE NUMBERS OF OTHERWISE VALID
CONVICTIONS.  AN EXCLUSIONARY RULE COMES INTO PLAY AFTER THE
INTERROGATION OR SEARCH HAS OCCURRED; AND THE DECISION TO QUESTION OR
TO SEARCH IS OFTEN MADE IN HASTE, UNDER PRESSURE, BY AN OFFICER WHO IS
NOT A LAWYER.  IF AN UNCONSTITUTIONAL INTERROGATION OR SEARCH WERE HELD
TO CREATE TRANSACTIONAL IMMUNITY, THAT MIGHT WELL BE REGARDED AS AN
EXCESSIVELY HIGH PRICE TO PAY FOR THE "CONSTABLE'S BLUNDER."  AN
IMMUNITY STATUTE, ON THE OTHER HAND, CREATES A FRAMEWORK IN WHICH THE
PROSECUTING ATTORNEY CAN MAKE A CALM AND REASONED DECISION WHETHER TO
COMPEL TESTIMONY AND SUFFER THE RESULTING BAN ON PROSECUTION, OR TO
FORGO THE TESTIMONY. 

FOR BOTH THESE REASONS IT IS CLEAR TO ME THAT AN IMMUNITY STATUTE
MUST BE TESTED BY A STANDARD FAR MORE DEMANDING THAN THAT APPROPRIATE
FOR AN EXCLUSIONARY RULE FASHIONED TO DEAL WITH PAST CONSTITUTIONAL
VIOLATIONS.  MEASURED BY THAT STANDARD, THE STATUTE APPROVED TODAY BY
THE COURT FAILS MISERABLY.  I RESPECTFULLY DISSENT. 

/1/  THIS CASE DOES NOT, OF COURSE, INVOLVE THE SPECIAL
CONSIDERATIONS THAT COME INTO PLAY WHEN THE PROSECUTING GOVERNMENT IS
DIFFERENT FROM THE GOVERNMENT THAT HAS COMPELLED THE TESTIMONY.  SEE
MURPHY V. WATERFRONT COMM'N, 378 U.S. 52 (1964). 

HUGH R. MANES ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON, ASSISTANT
ATTORNEY GENERAL REHNQUIST, JEROME M. FEIT, AND SIDNEY M. GLAZER. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MELVIN L. WULF,
FRED OKRAND, A. L. WIRIN, AND LAURENCE R. SPERBER FOR THE AMERICAN
CIVIL LIBERTIES UNION ET AL.; BY BENJAMIN DREYFUS FOR THE NATIONAL
LAWYERS GUILD; AND BY MORTON STAVIS AND ARTHUR KINOY FOR THE CENTER FOR
CONSTITUTIONAL RIGHTS. 
..END :








ZICARELLI V. NEW JERSEY INVESTIGATION COMM'N, 406 U.S. 472 


       ZICARELLI V. NEW JERSEY STATE COMMISSION OF INVESTIGATION

        APPEAL FROM THE SUPREME COURT OF NEW JERSEY

        NO. 69-4.  ARGUED JANUARY 11, 1972-- DECIDED MAY 22, 1972 


AFTER APPELLANT INVOKED THE FIFTH AMENDMENT AND REFUSED TO ANSWER
QUESTIONS CONCERNING ORGANIZED CRIME, RACKETEERING, AND POLITICAL
CORRUPTION IN LONG BEACH, NEW JERSEY, APPELLEE COMMISSION GRANTED HIM
STATUTORY IMMUNITY "FROM HAVING SUCH RESPONSIVE ANSWER GIVEN BY HIM OR
SUCH RESPONSIVE EVIDENCE PRODUCED BY HIM, OR EVIDENCE DERIVED THEREFROM
USED TO EXPOSE HIM TO CRIMINAL PROSECUTION OR PENALTY OR TO A
FORFEITURE OF HIS ESTATE . . . . "  APPELLANT STILL REFUSED TO ANSWER,
CONTENDING THAT FULL TRANSACTIONAL IMMUNITY WAS REQUIRED, THAT THE
STATUTORY BAN ON THE USE AND DERIVATIVE USE OF "RESPONSIVE" ANSWERS IS
UNCONSTITUTIONALLY VAGUE, AND THAT THE IMMUNITY WOULD NOT PROTECT HIM
FROM FOREIGN PROSECUTION, OF WHICH HE HAS A REAL AND SUBSTANTIAL FEAR. 
APPELLANT WAS ADJUDGED TO BE IN CONTEMPT AND THE JUDGMENT WAS UPHELD ON
APPEAL.  THE NEW JERSEY SUPREME COURT, CONSTRUING THE RESPONSIVENESS
LIMITATION, HELD THAT "THE STATUTE PROTECTS THE WITNESS AGAINST ANSWERS
AND EVIDENCE HE IN GOOD FAITH BELIEVED WERE DEMANDED."  COMMISSION
PROCEDURE PROVIDES FOR AN ADVANCE STATEMENT OF THE SUBJECT MATTER OF
THE QUESTIONING AND PERMITS A WITNESS TO HAVE COUNSEL PRESENT AT THE
HEARING.  HELD: 

1.  THE NEW JERSEY STATUTORY IMMUNITY FROM USE AND DERIVATIVE USE IS
COEXTENSIVE WITH THE SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION,
AND IS SUFFICIENT TO COMPEL TESTIMONY.  KASTIGAR V. UNITED STATES,
ANTE, P. 441.  PP. 474-476. 

2.  IN LIGHT OF THE STATE SUPREME COURT'S CONSTRUCTION AND THE
CONTEXT IN WHICH THE STATUTE OPERATES, THE RESPONSIVENESS LIMITATION IS
NOT VIOLATIVE OF DUE PROCESS.  PP. 476-478. 

3.  THE SELF-INCRIMINATION PRIVILEGE PROTECTS AGAINST REAL DANGERS,
NOT REMOTE AND SPECULATIVE POSSIBILITIES, AND HERE THERE WAS NO SHOWING
THAT APPELLANT WAS IN REAL DANGER OF BEING COMPELLED TO DISCLOSE
INFORMATION THAT MIGHT INCRIMINATE HIM UNDER FOREIGN LAW.  PP. 478
481. 

55 N.J. 249, 261 A.2D 129, AFFIRMED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., POST,
P. 481, AND MARSHALL, J., POST, P. 481, FILED DISSENTING STATEMENTS. 
BRENNAN AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASE. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE KASTIGAR V. UNITED STATES, ANTE, P. 441, RAISES
QUESTIONS CONCERNING THE CONDITIONS UNDER WHICH TESTIMONY CAN BE
COMPELLED FROM AN UNWILLING WITNESS WHO INVOKES THE FIFTH AMENDMENT
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION. 

THE NEW JERSEY STATE COMMISSION OF INVESTIGATION /1/  SUBPOENAED
APPELLANT TO APPEAR ON JULY 8, 1969, TO TESTIFY CONCERNING ORGANIZED
CRIME, RACKETEERING, AND POLITICAL CORRUPTION IN LONG BRANCH, NEW
JERSEY.  /2/  IN THE COURSE OF SEVERAL APPEARANCES BEFORE THE
COMMISSION, HE INVOKED HIS PRIVILEGE AGAINST SELF-INCRIMINATION AND
REFUSED TO ANSWER A SERIES OF 100 QUESTIONS.  THE COMMISSION GRANTED
HIM IMMUNITY PURSUANT TO N.J. REV. STAT. SEC. 52:9M-17(A) (1970), AND
ORDERED HIM TO ANSWER THE QUESTIONS.  NOTWITHSTANDING THE GRANT OF
IMMUNITY, HE PERSISTED IN HIS REFUSAL TO ANSWER.  THE COMMISSION THEN
PETITIONED THE SUPERIOR COURT OF MERCER COUNTY FOR AN ORDER DIRECTING
APPELLANT TO SHOW CAUSE WHY HE SHOULD NOT BE ADJUDGED IN CONTEMPT OF
THE COMMISSION AND COMMITTED TO JAIL UNTIL SUCH TIME AS HE PURGED
HIMSELF OF CONTEMPT BY TESTIFYING AS ORDERED.  AT THE HEARING ON THE
ORDER TO SHOW CAUSE, APPELLANT CHALLENGED THE ORDER TO TESTIFY ON
SEVERAL GROUNDS, ONE OF WHICH WAS THAT THE STATUTORY IMMUNITY WAS
INSUFFICIENT IN SEVERAL RESPECTS TO COMPEL TESTIMONY OVER A CLAIM OF
THE PRIVILEGE.  THE SUPERIOR COURT REJECTED THIS CONTENTION, AND
ORDERED APPELLANT INCARCERATED UNTIL SUCH TIME AS HE TESTIFIED AS
ORDERED.  THE SUPREME COURT OF NEW JERSEY CERTIFIED APPELLANT'S APPEAL
BEFORE ARGUMENT IN THE APPELLATE DIVISION, AND AFFIRMED THE JUDGMENT OF
THE SUPERIOR COURT.  IN RE ZICARELLI, 55 N.J. 249, 261 A.2D 129
(1970).  THIS COURT NOTED PROBABLE JURISDICTION AND SET THE CASE FOR
ARGUMENT TO CONSIDER APPELLANT'S CHALLENGES TO THE SUFFICIENCY OF THE
IMMUNITY AUTHORIZED BY THE STATUTE.  401 U.S. 933 (1971.) 

        I 

A MAJORITY OF THE MEMBERS OF THE COMMISSION HAVE AUTHORITY TO CONFER
IMMUNITY ON A WITNESS WHO INVOKES THE PRIVILEGE AGAINST SELF
INCRIMINATION.  /3/  AFTER THE WITNESS TESTIFIES UNDER THE GRANT OF
IMMUNITY, THE STATUTE PROVIDES THAT: 

"HE SHALL BE IMMUNE FROM HAVING SUCH RESPONSIVE ANSWER GIVEN BY HIM
OR SUCH RESPONSIVE EVIDENCE PRODUCED BY HIM, OR EVIDENCE DERIVED
THEREFROM USED TO EXPOSE HIM TO CRIMINAL PROSECUTION OR PENALTY OR TO A
FORFEITURE OF HIS ESTATE, EXCEPT THAT SUCH PERSON MAY NEVERTHELESS BE
PROSECUTED FOR ANY PERJURY COMMITTED IN SUCH ANSWER OR IN PRODUCING
SUCH EVIDENCE, OR FOR CONTEMPT FOR FAILING TO GIVE AN ANSWER OR PRODUCE
EVIDENCE IN ACCORDANCE WITH THE ORDER OF THE COMMISSION . . . . "  N.J.
REV. STAT. SEC. 52:9M-17(B) (1970).  THIS IS A COMPREHENSIVE
PROHIBITION ON THE USE AND DERIVATIVE USE OF TESTIMONY COMPELLED UNDER
A GRANT OF IMMUNITY.  /4/  APPELLANT CONTENDS THAT ONLY FULL
TRANSACTIONAL IMMUNITY AFFORDS PROTECTION COMMENSURATE WITH THAT
AFFORDED BY THE PRIVILEGE AND SUFFICES TO COMPEL TESTIMONY OVER A CLAIM
OF THE PRIVILEGE.  WE REJECTED THIS ARGUMENT TODAY IN KASTIGAR, WHERE
WE HELD THAT IMMUNITY FROM USE AND DERIVATIVE USE IS COEXTENSIVE WITH
THE SCOPE OF THE PRIVILEGE, AND IS THEREFORE SUFFICIENT TO COMPEL
TESTIMONY.  WE PERCEIVE NO DIFFERENCE BETWEEN THE DEGREE OF PROTECTION
AFFORDED BY THE NEW JERSEY STATUTE AND THAT AFFORDED BY THE FEDERAL
STATUTE SUSTAINED IN KASTIGAR. 

APPELLANT ALSO CONTENDS THAT WHILE IMMUNITY FROM USE AND DERIVATIVE
USE MAY SUFFICE TO SECURE THE PROTECTION OF THE PRIVILEGE FROM INVASION
BY JURISDICTIONS OTHER THAN THE JURISDICTION SEEKING TO COMPEL
TESTIMONY, THAT JURISDICTION MUST GRANT THE GREATER PROTECTION AFFORDED
BY TRANSACTIONAL IMMUNITY.  IN KASTIGAR, WE HELD THAT IMMUNITY FROM USE
AND DERIVATIVE USE IS COMMENSURATE WITH THE PROTECTION AFFORDED BY THE
PRIVILEGE, AND REJECTED THE NOTION THAT IN OUR FEDERAL SYSTEM A
JURISDICTION SEEKING TO COMPEL TESTIMONY MUST GRANT PROTECTION GREATER
THAN THAT AFFORDED BY THE PRIVILEGE IN ORDER TO SUPPLANT THE PRIVILEGE
AND COMPEL TESTIMONY.  OUR HOLDING IN KASTIGAR IS CONTROLLING HERE. 

II 

APPELLANT CONTENDS THAT THE IMMUNITY PROVIDED BY THE NEW JERSEY
STATUTE IS UNCONSTITUTIONALLY VAGUE BECAUSE IT IMMUNIZES A WITNESS ONLY
AGAINST THE USE AND DERIVATIVE USE OF "RESPONSIVE" ANSWERS AND
EVIDENCE, WITHOUT PROVIDING STATUTORY GUIDELINES FOR DETERMINING WHAT
IS A "RESPONSIVE" ANSWER.  THE STATUTE DOES NOT COME TO US DEVOID OF
INTERPRETATION, FOR THE SUPREME COURT OF NEW JERSEY CONSTRUED THE
RESPONSIVENESS LIMITATION AS FOLLOWS: 

"THE LIMITATION IS INTENDED TO PREVENT A WITNESS FROM SEEKING UNDUE
PROTECTION BY VOLUNTEERING WHAT THE STATE ALREADY KNOWS OR WILL LIKELY
COME UPON WITHOUT THE WITNESS'S AID.  THE PURPOSE IS NOT TO TRAP. 
FAIRLY CONSTRUED, THE STATUTE PROTECTS THE WITNESS AGAINST ANSWERS AND
EVIDENCE HE IN GOOD FAITH BELIEVED WERE DEMANDED."  55 N.J.,AT 270-271,
261 A.2D, AT 140. 

THIS IS NOT THE TECHNICAL CONSTRUCTION OF "RESPONSIVE" IN THE LEGAL
EVIDENTIARY SENSE THAT APPELLANT FEARS, /5/  BUT, RATHER, IS A
CONSTRUCTION CAST IN TERMS OF ORDINARY ENGLISH USAGE /6/  AND THE GOOD
FAITH UNDERSTANDING OF THE AVERAGE MAN.  THE TERM "RESPONSIVE" IN
ORDINARY ENGLISH USAGE HAS A WELL-RECOGNIZED MEANING.  IT IS NOT, AS
APPELLANT ARGUES, "SO VAGUE THAT MEN OF COMMON INTELLIGENCE MUST
NECESSARILY GUESS AT ITS MEANING AND DIFFER AS TO ITS APPLICATION." 
CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, 391 (1926). 

MOREOVER, THE CONTENTION THAT AMBIGUITY IN THE TERM "RESPONSIVE"
POSES UNDUE HAZARDS FOR A WITNESS TESTIFYING UNDER A GRANT OF IMMUNITY
MUST BE CONSIDERED IN THE CONTEXT IN WHICH THE STATUTE OPERATES.  THIS
IS NOT A PENAL STATUTE THAT REQUIRES AN UNCOUNSELED DECISION BY A
LAYMAN AS TO WHAT COURSE OF ACTION IS LAWFUL TO PURSUE.  A WITNESS
BEFORE THE COMMISSION IS ENTITLED TO HAVE IN ADVANCE OF HIS TESTIMONY A
STATEMENT OF THE SUBJECT MATTER ON WHICH THE COMMISSION INTENDS TO
EXAMINE HIM.  /7/  THIS ADVANCE NOTICE OF THE SUBJECT OF THE INQUIRY
WILL PROVIDE A BACKGROUND AND CONTEXT THAT WILL AID A WITNESS IN
DETERMINING WHAT INFORMATION THE QUESTIONS SEEK.  THE NEW JERSEY
STATUTE FURTHER PROVIDES THAT A WITNESS BEFORE THE COMMISSION IS
ENTITLED TO HAVE COUNSEL PRESENT DURING THE COURSE OF THE HEARING, /8/
AND COUNSEL MAY SECURE CLARIFICATION OF VAGUE OR AMBIGUOUS QUESTIONS IN
ADVANCE OF A RESPONSE BY THE WITNESS.  /9/  THE RESPONSIVENESS
LIMITATION IS NOT A TRAP FOR THE UNWARY; RATHER IT IS A BARRIER TO
THOSE WHO WOULD INTENTIONALLY TENDER INFORMATION NOT SOUGHT IN AN
EFFORT TO FRUSTRATE AND PREVENT CRIMINAL PROSECUTION.  /10/  THE
CONTEXT IN WHICH THE STATUTE OPERATES /11/  REAFFIRMS OUR CONCLUSION
THAT THE RESPONSIVENESS LIMITATION DOES NOT VIOLATE THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT. 

        III 

APPELLANT FURTHER ASSERTS THAT HE CANNOT BE COMPELLED TO TESTIFY
BEFORE THE COMMISSION BECAUSE HIS TESTIMONY WOULD EXPOSE HIM TO DANGER
OF FOREIGN PROSECUTION.  HE ARGUES THAT HE HAS A REAL AND SUBSTANTIAL
FEAR OF FOREIGN PROSECUTION, AND THAT HE CANNOT BE COMPELLED TO
INCRIMINATE HIMSELF UNDER FOREIGN LAW.  IT FOLLOWS, HE INSISTS, THAT HE
CANNOT BE COMPELLED TO TESTIFY, IRRESPECTIVE OF THE SCOPE OF THE
IMMUNITY HE RECEIVES, BECAUSE NEITHER THE NEW JERSEY STATUTE NOR THE
FIFTH AMENDMENT PRIVILEGE CAN PREVENT EITHER PROSECUTION OR USE OF HIS
TESTIMONY BY A FOREIGN SOVEREIGN.  THIS COURT NOTED PROBABLE
JURISDICTION TO CONSIDER APPELLANT'S CLAIM THAT A GRANT OF IMMUNITY
CANNOT SUPPLANT THE FIFTH AMENDMENT PRIVILEGE WITH RESPECT TO AN
INDIVIDUAL WHO HAS A REAL AND SUBSTANTIAL FEAR OF FOREIGN PROSECUTION. 
WE HAVE CONCLUDED, HOWEVER, THAT IT IS UNNECESSARY TO REACH THE
CONSTITUTIONAL QUESTION IN THIS CASE. 

IT IS WELL ESTABLISHED THAT THE PRIVILEGE PROTECTS AGAINST REAL
DANGERS, NOT REMOTE AND SPECULATIVE POSSIBILITIES.  /12/  AT THE
HEARING BEFORE THE SUPERIOR COURT OF MERCER COUNTY, APPELLANT
INTRODUCED NUMEROUS NEWSPAPER AND MAGAZINE ARTICLES BEARING UPON HIS
SELF-INCRIMINATION CLAIM.  HE CALLED A NUMBER OF THESE ARTICLES TO THE
COURT'S ATTENTION IN AN EFFORT TO DEMONSTRATE THE BASIS OF A FEAR OF
FOREIGN PROSECUTION.  /13/  THESE ARTICLES LABELED APPELLANT THE
"FOREMOST INTERNATIONALIST" IN ORGANIZED CRIME, /14/  AND DETAILED HIS
ALLEGED PARTICIPATION IN UNLAWFUL VENTURES GROWING OUT OF ALLEGED
INTERESTS AND ACTIVITIES IN CANADA /15/  AND THE DOMINICAN REPUBLIC. 
/16/ 

WHILE THESE ARTICLES WOULD LEND SUPPORT TO A CLAIM OF FEAR OF
FOREIGN PROSECUTION IN THE ABSTRACT, THEY DO NOT SUPPORT SUCH A CLAIM
IN THE CONTEXT OF THE QUESTIONS ASKED BY THE COMMISSION.  OF THE 100
QUESTIONS HE REFUSED TO ANSWER, APPELLANT CITES ONLY ONE SPECIFIC
QUESTION /17/  AS POSING A SUBSTANTIAL RISK OF INCRIMINATION UNDER
FOREIGN LAW.  THAT QUESTION IS:  "IN WHAT GEOGRAPHICAL AREA DO YOU HAVE
COSA NOSTRA RESPONSIBILITIES?" 

WE THINK IT PLAIN FROM THE CONTEXT IN WHICH THE QUESTION WAS ASKED
THAT IT SOUGHT AN ANSWER CONCERNING GEOGRAPHICAL AREAS IN NEW JERSEY. 
THE SUBJECT OF THE HEARING WAS LAW ENFORCEMENT, ORGANIZED CRIME,
RACKETEERING, AND POLITICAL CORRUPTION IN THE CITY OF LONG BRANCH,
WHICH IS LOCATED IN MONMOUTH COUNTY, NEW JERSEY.  ELEVEN OF THE 13
QUESTIONS PRECEDING THE QUESTION UNDER CONSIDERATION RELATED
SPECIFICALLY TO THE CITY OF LONG BRANCH AND MONMOUTH COUNTY.  /18/  OF
COURSE, NEITHER THE FACT THAT THE COMMISSION WAS NOT SEEKING
INFORMATION CONCERNING APPELLANT'S ACTIVITIES OUTSIDE THE UNITED
STATES, NOR THE FACT THAT THE QUESTION WAS NOT DESIGNED TO ELICIT SUCH
INFORMATION, IS DISPOSITIVE OF APPELLANT'S CLAIM THAT AN ANSWER TO THE
QUESTION WOULD INCRIMINATE HIM UNDER FOREIGN LAW.  WHEN CONSIDERING
WHETHER A CLAIM OF THE PRIVILEGE SHOULD BE SUSTAINED, THE COURT FOCUSES
INQUIRY ON WHAT A TRUTHFUL ANSWER MIGHT DISCLOSE, RATHER THAN ON WHAT
INFORMATION IS EXPECTED BY THE QUESTIONER.  /19/  BUT THE CONTEXT IN
WHICH A QUESTION IS ASKED IMPARTS ADDITIONAL MEANING TO THE QUESTION,
AND CLARIFIES WHAT INFORMATION IS SOUGHT.  A QUESTION TO WHICH A CLAIM
OF THE PRIVILEGE IS INTERPOSED MUST BE CONSIDERED "IN THE SETTING IN
WHICH IT IS ASKED."  HOFFMAN V. UNITED STATES, 341 U.S. 479, 486
(1951). 

CONSIDERING THIS QUESTION IN LIGHT OF THE CIRCUMSTANCES IN WHICH IT
WAS ASKED, WE AGREE WITH THE CONCLUSION OF THE SUPREME COURT OF NEW
JERSEY THAT APPELLANT WAS NEVER IN REAL DANGER OF BEING COMPELLED TO
DISCLOSE INFORMATION THAT MIGHT INCRIMINATE HIM UNDER FOREIGN LAW. 
EVEN IF APPELLANT HAS INTERNATIONAL COSA NOSTRA RESPONSIBILITIES, HE
COULD HAVE ANSWERED THIS QUESTION TRUTHFULLY WITHOUT DISCLOSING THEM. 
SHOULD HE HAVE FOUND IT NECESSARY TO QUALIFY HIS ANSWER BY CONFINING IT
TO DOMESTIC RESPONSIBILITIES IN ORDER TO AVOID INCRIMINATION UNDER
FOREIGN LAW, HE COULD HAVE DONE SO.  TO HAVE DIVULGED INTERNATIONAL
RESPONSIBILITIES WOULD HAVE BEEN TO VOLUNTEER INFORMATION NOT SOUGHT,
AND APPARENTLY NOT RELEVANT TO THE COMMISSION'S INVESTIGATION.  WE
THINK THAT IN THE CIRCUMSTANCES OF THE QUESTIONING THIS WAS CLEAR TO
APPELLANT AND HIS COUNSEL. 

APPELLANT IS OF COURSE FREE TO PURGE HIMSELF OF CONTEMPT BY
ANSWERING THE COMMISSION'S QUESTIONS.  SHOULD THE COMMISSION INQUIRE
INTO MATTERS THAT MIGHT INCRIMINATE HIM UNDER FOREIGN LAW AND POSE A
SUBSTANTIAL RISK OF FOREIGN PROSECUTION, AND SHOULD SUCH INQUIRY BE
SUSTAINED OVER A RELEVANCY OBJECTION, /20/  THEN A CONSTITUTIONAL
QUESTION WILL BE SQUARELY PRESENTED.  WE DO NOT BELIEVE THAT THE RECORD
IN THIS CASE PRESENTS SUCH A QUESTION. 

THE JUDGMENT OF THE SUPREME COURT OF NEW JERSEY ACCORDINGLY IS

           AFFIRMED. 

MR. JUSTICE BRENNAN AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  THE NEW JERSEY LEGISLATURE CREATED THE COMMISSION PRIMARILY TO
INVESTIGATE ORGANIZED CRIME, RACKETEERING, AND POLITICAL CORRUPTION IN
NEW JERSEY.  N.J. REV. STAT. SECS. 52:9M-A AND 52:9M-2 (1970 AND SUPP.
1971-1972). 

/2/  THE NEW JERSEY CODE OF FAIR PROCEDURE REQUIRES THAT PERSONS
SUMMONED TO TESTIFY BEFORE THE COMMISSION BE SERVED PRIOR TO THE TIME
THEY ARE REQUIRED TO APPEAR WITH A STATEMENT OF THE SUBJECT OF THE
INVESTIGATION.  N.J. REV. STAT. SEC. 52:13E-2 (1970).  THE SUBPOENA
SERVED ON APPELLANT CONTAINED THIS STATEMENT.  APP. 3A. 

/3/  N.J. REV. STAT. SEC. 52:9M-17(A) (1970). 

/4/  SEE IN RE ZICARELLI, 55 N.J. 249, 270, 261 A.2D 129, 140
(1970). 

/5/  SEE 3 J.WIGMORE, EVIDENCE 785, PP. 200-202 (J. CHADBOURN REV.
1970). 

/6/  CF. MALLOY V. HOGAN, 378 U.S. 1, 12 (1964); HOFFMAN V. UNITED
STATES, 341 U.S. 479, 487 (1951). 

/7/  N.J. REV. STAT. SEC. 52:13E-2 (1970). 

/8/  N.J. REV. STAT. SEC. 52:13E-3 (1970). 

/9/  APPELLANT DOES NOT CONTEND THAT COUNSEL, ALTHOUGH PRESENT, IS
SO LIMITED IN HIS ROLE THAT HE CANNOT OBTAIN CLARIFICATION OF ANY
QUESTIONS THAT THE WITNESS DOES NOT UNDERSTAND FULLY.  COUNSEL FOR THE
COMMISSION STATES THAT A WITNESS MAY EVEN OBJECT TO QUESTIONS ON THE
GROUND THAT THEY ARE NOT RELEVANT TO THE SUBJECT MATTER OF THE INQUIRY,
AND OBTAIN A COURT RULING ON RELEVANCY BEFORE BEING REQUIRED TO
ANSWER.  APPELLEE'S BRIEF 81-82.     /10/  IN RE ZICARELLI, 55 N.J.,AT
270-271, 261 A.2D, AT 140.  SEE GENERALLY COMMENT, THE FEDERAL WITNESS
IMMUNITY ACTS IN THEORY AND PRACTICE:  TREADING THE CONSTITUTIONAL
TIGHTROPE, 72 YALE L.J. 1568, 1572 (1963). 

/11/  APPELLANT REFUSED TO ANSWER 100 QUESTIONS.  NONE OF THESE
QUESTIONS IS POINTED TO AS AN EXAMPLE OF A QUESTION THAT IS SO VAGUE
THAT AN ORDINARY MAN COULD NOT DETERMINE WHAT INFORMATION THE QUESTION
SEEKS. 

/12/  E.G., MASON V. UNITED STATES, 244 U.S. 362 (1917); HEIKE V.
UNITED STATES, 227 U.S. 131, 144 (1913); BROWN V. WALKER, 161 U.S. 591,
599-600 (1896); QUEEN V. BOYES, 1 B.& S. 311, 329-331, 121 ENG.REP. 
730, 738 (Q.B. 1861). 

/13/  CF. HOFFMAN V. UNITED STATES, 341 U.S.,AT 489. 

/14/  LIFE, SEPT. 8, 1967, P. 101. 

/15/  LIFE, AUG. 9, 1968, P. 24. 

/16/  LIFE, SEPT. 8, 1967, P. 101.  APPELLANT ALSO ALLEGES THAT
THESE ARTICLES SUPPORT HIS CLAIM OF A REAL AND SUBSTANTIAL DANGER OF
PROSECUTION BY VENEZUELA.  THE ONLY REFERENCE TO VENEZUELA, HOWEVER, IS
A STATEMENT THAT APPELLANT "HAS HOLDINGS IN VENEZUELA."  LIFE, SEPT. 1,
1967, AT 45. 

/17/  APPELLANT ALSO RAISES A VAGUE OBJECTION ON GROUNDS OF
INCRIMINATION UNDER FOREIGN LAW TO THESE FIVE QUESTIONS: 

"Q.  ARE YOU A MEMBER OF ANY SECRET ORGANIZATION THAT IS DEDICATED
TO OR WHOSE PRINCIPLE IS TO PURSUE CRIME AND PROTECT THOSE OF ITS
MEMBERS WHO DO COMMIT CRIME?"  APP. 8A. 

"Q.  DO YOU KNOW THAT ORGANIZATION BY THE NAME COSA NOSTRA?"  APP.
17A. 

"Q.  ARE YOU A MEMBER OF THE ORGANIZATION KNOWN AS COSA NOSTRA?" 
APP. 18A. 

"Q.  IN WHOSE FAMILY OF COSA NOSTRA ARE YOU A MEMBER? 

"Q.  DO YOU KNOW JOSEPH BONANNO?"  APP. 20A. 

THESE QUESTIONS DO NOT SEEK ANSWERS CONCERNING FOREIGN INVOLVEMENTS
OR FOREIGN CRIMINAL ACTIVITY.  INDEED, THEY DO NOT RELATE TO CRIMINAL
ACTS.  NOR IS IT EVEN REMOTELY LIKELY THAT THEIR ANSWERS COULD AFFORD
"A LINK IN THE CHAIN OF EVIDENCE" NEEDED TO PROSECUTE APPELLANT IN A
FOREIGN JURISDICTION.  CF. BLAU V. UNITED STATES.  340 U.S. 159, 161
(1950).  FOR IF APPELLANT IDENTIFIED HIMSELF AS A MEMBER OF THE COSA
NOSTRA IN THE "FAMILY" OF JOSEPH BONANNO, HE WOULD ONLY CONFIRM AN
ASSUMPTION WIDELY HELD BY LAW ENFORCEMENT AUTHORITIES.  SEE, E.G., S.
REP. NO. 91-617, P. 38 (1969).  TO CONFIRM THE OPERATING ASSUMPTION OF
LAW ENFORCEMENT AUTHORITIES HARDLY PROVIDES A NEW "LINK" TO EVIDENCE
THAT COULD BE USED IN A FOREIGN PROSECUTION. 

/18/  THE QUESTION UNDER CONSIDERATION WAS FOLLOWED BY THE QUESTION:
"IS MONMOUTH COUNTY WITHIN THAT GEOGRAPHICAL AREA?" 

/19/  SEE HOFFMAN V. UNITED STATES, 341 U.S. 479 (1951). 

/20/  SEE N. 9, SUPRA. 

MR. JUSTICE DOUGLAS DISSENTS FOR THE REASONS STATED IN HIS
DISSENTING OPINION IN KASTIGAR V. UNITED STATES, ANTE, P. 462. 

MR. JUSTICE MARSHALL DISSENTS FOR THE REASONS STATED IN HIS
DISSENTING OPINION IN KASTIGAR V. UNITED STATES, ANTE, P. 467. 

MICHAEL A. QUERQUES ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WERE DANIEL E. ISLES, HARVEY WEISSBARD, AND JOSEPH E. BRILL. 

ANDREW F. PHELAN ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 

GEORGE F. KUGLER, JR., ATTORNEY GENERAL, ARGUED THE CAUSE FOR THE
STATE OF NEW JERSEY AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON
THE BRIEF WERE BARRY H. EVENCHICK AND MICHAEL R. PERLE, DEPUTY
ATTORNEYS GENERAL. 

MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION
AS AMICUS CURIAE URGING REVERSAL. 

ROBERT G. DIXON, JR., FILED A BRIEF FOR THE NATIONAL DISTRICT
ATTORNEYS ASSOCIATION ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :












SARNO V. ILLINOIS CRIME COMM'N, 406 U.S. 482 


       SARNO ET AL. V. ILLINOIS CRIME INVESTIGATING COMMISSION

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS

        NO. 70-7.  ARGUED JANUARY 11, 1972-- DECIDED MAY 22, 1972 


SINCE NEITHER PARTY CONTENDS THAT THE SCOPE OF ILLINOIS STATUTORY
IMMUNITY FALLS BELOW THE USE AND DERIVATIVE USE STANDARD HELD TO BE
COEXTENSIVE WITH THE PRIVILEGE AGAINST SELF-INCRIMINATION IN KASTIGAR
V. UNITED STATES, ANTE, P. 441, ANY UNCERTAINTY REGARDING THE SCOPE OF
PROTECTION IN EXCESS OF THE CONSTITUTIONAL REQUIREMENT SHOULD BEST BE
LEFT TO THE ILLINOIS COURTS. 

45 ILL.2D 473, 259 N.E.2D 267, CERTIORARI DISMISSED AS IMPROVIDENTLY
GRANTED. 

PER CURIAM. 

PETITIONERS WERE ORDERED TO TESTIFY BEFORE THE ILLINOIS CRIME
INVESTIGATING COMMISSION UNDER A GRANT OF IMMUNITY CONFERRED PURSUANT
TO ILL. REV. STAT., C. 38, SEC. 203-14 (1969).  THE OCCASION FOR
GRANTING THE WRIT IN THIS CASE WAS TO CONSIDER WHETHER ILLINOIS MUST
DEMONSTRATE TO PETITIONERS, PRIOR TO AN ADJUDICATION FOR CONTEMPT FOR
REFUSAL TO ANSWER THE COMMISSION'S QUESTIONS, THAT IMMUNITY AS BROAD IN
SCOPE AS THE PROTECTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION IS
AVAILABLE AND APPLICABLE TO THEM.  401 U.S. 935 (1971).  THE WRIT WAS
GRANTED IN LIGHT OF PETITIONERS' CLAIM THAT THE STATUTE DID NOT PROVIDE
COMPLETE TRANSACTIONAL IMMUNITY.  ON THE SAME DAY THAT THE WRIT WAS
GRANTED, PROBABLE JURISDICTION WAS NOTED IN ZICARELLI V. NEW JERSEY
STATE COMMISSION OF INVESTIGATION, 401 U.S. 933 (1971), TO RESOLVE THE
QUESTION WHETHER A STATE CAN COMPEL TESTIMONY FROM AN UNWILLING
WITNESS, WHO INVOKES THE PRIVILEGE AGAINST SELF-INCRIMINATION, BY
GRANTING IMMUNITY FROM USE AND DERIVATIVE USE OF THE COMPELLED
TESTIMONY, OR WHETHER TRANSACTIONAL IMMUNITY IS REQUIRED. 

WE HELD TODAY IN KASTIGAR V. UNITED STATES, ANTE, P. 441, AND IN
ZICARELLI V. NEW JERSEY STATE COMMISSION OF INVESTIGATION, ANTE, P.
472, THAT TESTIMONY MAY BE COMPELLED FROM AN UNWILLING WITNESS OVER A
CLAIM OF THE PRIVILEGE AGAINST SELF-INCRIMINATION BY A GRANT OF USE AND
DERIVATIVE USE IMMUNITY.  THE PREMISE OF PETITIONERS' ARGUMENTS IS THAT
TRANSACTIONAL IMMUNITY IS REQUIRED.  THEY SAY THAT ILLINOIS FAILED TO
DEMONSTRATE SATISFACTORILY THAT TRANSACTIONAL IMMUNITY WAS PROVIDED,
BUT THEY DO NOT CONTEND THAT THE ILLINOIS IMMUNITY STATUTE AFFORDS
PROTECTION LESS COMPREHENSIVE THAN USE AND DERIVATIVE USE IMMUNITY. 
RESPONDENT ASSERTS THAT THE STATUTE AFFORDS COMPLETE TRANSACTIONAL
IMMUNITY, REFLECTING A LONG-STANDING ILLINOIS POLICY OF PROVIDING
IMMUNITY GREATER THAN THAT REQUIRED BY THE UNITED STATES CONSTITUTION. 
SINCE NEITHER PARTY CONTENDS THAT THE SCOPE OF THE IMMUNITY PROVIDED BY
THE ILLINOIS STATUTE FALLS BELOW THE CONSTITUTIONAL REQUIREMENT SET
FORTH IN KASTIGAR, WE CONCLUDE THAT ANY UNCERTAINTY REGARDING THE SCOPE
OF PROTECTION IN EXCESS OF THE CONSTITUTIONAL REQUIREMENT SHOULD BEST
BE LEFT TO THE COURTS OF ILLINOIS.  ACCORDINGLY, THE WRIT OF CERTIORARI
IS DISMISSED AS IMPROVIDENTLY GRANTED. 

          IT IS SO ORDERED. 

MR. JUSTICE BRENNAN AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS DISSENTS FOR THE REASONS STATED IN HIS
DISSENTING OPINION IN KASTIGAR V. UNITED STATES, ANTE, P. 462. 

MR. JUSTICE MARSHALL DISSENTS FOR THE REASONS STATED IN HIS
DISSENTING OPINION IN KASTIGAR V. UNITED STATES, ANTE, P. 467. 

FRANK G. WHALEN ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONERS. 

JOEL M. FLAUM, FIRST ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, AND JAYNE A. CARR, ASSISTANT ATTORNEY GENERAL. 

MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION
AS AMICUS CURIAE URGING REVERSAL. 
..END :




















WISCONSIN V. YODER, 406 U.S. 205 


       WISCONSIN V. YODER ET AL.

        CERTIORARI TO THE SUPREME COURT OF WISCONSIN

        NO. 70-110.  ARGUED DECEMBER 8, 1971-- DECIDED MAY 15,
1972 


RESPONDENTS, MEMBERS OF THE OLD ORDER AMISH RELIGION AND THE
CONSERVATIVE AMISH MENNONITE CHURCH, WERE CONVICTED OF VIOLATING
WISCONSIN'S COMPULSORY SCHOOL-ATTENDANCE LAW (WHICH REQUIRES A CHILD'S
SCHOOL ATTENDANCE UNTIL AGE 16) BY DECLINING TO SEND THEIR CHILDREN TO
PUBLIC OR PRIVATE SCHOOL AFTER THEY HAD GRADUATED FROM THE EIGHTH
GRADE.  THE EVIDENCE SHOWED THAT THE AMISH PROVIDE CONTINUING INFORMAL
VOCATIONAL EDUCATION TO THEIR CHILDREN DESIGNED TO PREPARE THEM FOR
LIFE IN THE RURAL AMISH COMMUNITY.  THE EVIDENCE ALSO SHOWED THAT
RESPONDENTS SINCERELY BELIEVED THAT SCHOOL ATTENDANCE WAS CONTRARY TO
THE AMISH RELIGION AND WAY OF LIFE AND THAT THEY WOULD ENDANGER THEIR
OWN SALVATION AND THAT OF THEIR CHILDREN BY COMPLYING WITH THE LAW. 
THE STATE SUPREME COURT SUSTAINED RESPONDENTS' CLAIM THAT APPLICATION
OF THE COMPULSORY SCHOOL-ATTENDANCE LAW TO THEM VIOLATED THEIR RIGHTS
UNDER THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT, MADE APPLICABLE
TO THE STATES BY THE FOURTEENTH AMENDMENT.  HELD: 

1.  THE STATE'S INTEREST IN UNIVERSAL EDUCATION IS NOT TOTALLY FREE
FROM A BALANCING PROCESS WHEN IT IMPINGES ON OTHER FUNDAMENTAL RIGHTS,
SUCH AS THOSE SPECIFICALLY PROTECTED BY THE FREE EXERCISE CLAUSE OF THE
FIRST AMENDMENT AND THE TRADITIONAL INTEREST OF PARENTS WITH RESPECT TO
THE RELIGIOUS UPBRINGING OF THEIR CHILDREN.  PP. 213-215. 

2.  RESPONDENTS HAVE AMPLY SUPPORTED THEIR CLAIM THAT ENFORCEMENT OF
THE COMPULSORY FORMAL EDUCATION REQUIREMENT AFTER THE EIGHTH GRADE
WOULD GRAVELY ENDANGER IF NOT DESTROY THE FREE EXERCISE OF THEIR
RELIGIOUS BELIEFS.  PP. 215-219. 

3.  AIDED BY A HISTORY OF THREE CENTURIES AS AN IDENTIFIABLE
RELIGIOUS SECT AND A LONG HISTORY AS A SUCCESSFUL AND SELF-SUFFICIENT
SEGMENT OF AMERICAN SOCIETY, THE AMISH HAVE DEMONSTRATED THE SINCERITY
OF THEIR RELIGIOUS BELIEFS, THE INTERRELATIONSHIP OF BELIEF WITH THEIR
MODE OF LIFE, THE VITAL ROLE THAT BELIEF AND DAILY CONDUCT PLAY IN THE
CONTINUING SURVIVAL OF OLD ORDER AMISH COMMUNITIES, AND THE HAZARDS
PRESENTED BY THE STATE'S ENFORCEMENT OF A STATUTE GENERALLY VALID AS TO
OTHERS.  BEYOND THIS, THEY HAVE CARRIED THE DIFFICULT BURDEN OF
DEMONSTRATING THE ADEQUACY OF THEIR ALTERNATIVE MODE OF CONTINUING
INFORMAL VOCATIONAL EDUCATION IN TERMS OF THE OVERALL INTERESTS THAT
THE STATE RELIES ON IN SUPPORT OF ITS PROGRAM OF COMPULSORY HIGH SCHOOL
EDUCATION.  IN LIGHT OF THIS SHOWING, AND WEIGHING THE MINIMAL
DIFFERENCE BETWEEN WHAT THE STATE WOULD REQUIRE AND WHAT THE AMISH
ALREADY ACCEPT, IT WAS INCUMBENT ON THE STATE TO SHOW WITH MORE
PARTICULARITY HOW ITS ADMITTEDLY STRONG INTEREST IN COMPULSORY
EDUCATION WOULD BE ADVERSELY AFFECTED BY GRANTING AN EXEMPTION TO THE
AMISH.  PP. 219-229, 234-236. 

4.  THE STATE'S CLAIM THAT IT IS EMPOWERED, AS PARENS PATRIAE, TO
EXTEND THE BENEFIT OF SECONDARY EDUCATION TO CHILDREN REGARDLESS OF THE
WISHES OF THEIR PARENTS CANNOT BE SUSTAINED AGAINST A FREE EXERCISE
CLAIM OF THE NATURE REVEALED BY THIS RECORD, FOR THE AMISH HAVE
INTRODUCED CONVINCING EVIDENCE THAT ACCOMMODATING THEIR RELIGIOUS
OBJECTIONS BY FORGOING ONE OR TWO ADDITIONAL YEARS OF COMPULSORY
EDUCATION WILL NOT IMPAIR THE PHYSICAL OR MENTAL HEALTH OF THE CHILD,
OR RESULT IN AN INABILITY TO BE SELF-SUPPORTING OR TO DISCHARGE THE
DUTIES AND RESPONSIBILITIES OF CITIZENSHIP, OR IN ANY OTHER WAY
MATERIALLY DETRACT FROM THE WELFARE OF SOCIETY.  PP. 229-234. 

49 WIS.2D 430, 182 N.W.2D 539, AFFIRMED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  STEWART, J.,
FILED A CONCURRING OPINION, IN WHICH BRENNAN, J., JOINED, POST P. 237. 
WHITE J., FILED A CONCURRING OPINION, IN WHICH BRENNAN AND STEWART,
JJ., JOINED, POST, P. 237.  DOUGLAS, J., FILED AN OPINION DISSENTING IN
PART, POST, P. 241.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

ON PETITION OF THE STATE OF WISCONSIN, WE GRANTED THE WRIT OF
CERTIORARI IN THIS CASE TO REVIEW A DECISION OF THE WISCONSIN SUPREME
COURT HOLDING THAT RESPONDENTS' CONVICTIONS OF VIOLATING THE STATE'S
COMPULSORY SCHOOL-ATTENDANCE LAW WERE INVALID UNDER THE FREE EXERCISE
CLAUSE OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.  FOR THE REASONS
HEREAFTER STATED WE AFFIRM THE JUDGMENT OF THE SUPREME COURT OF
WISCONSIN. 

RESPONDENTS JONAS YODER AND WALLACE MILLER ARE MEMBERS OF THE OLD
ORDER AMISH RELIGION, AND RESPONDENT ADIN YUTZY IS A MEMBER OF THE
CONSERVATIVE AMISH MENNONITE CHURCH.  THEY AND THEIR FAMILIES ARE
RESIDENTS OF GREEN COUNTY, WISCONSIN.  WISCONSIN'S COMPULSORY SCHOOL
ATTENDANCE LAW REQUIRED THEM TO CAUSE THEIR CHILDREN TO ATTEND PUBLIC
OR PRIVATE SCHOOL UNTIL REACHING AGE 16 BUT THE RESPONDENTS DECLINED TO
SEND THEIR CHILDREN, AGES 14 AND 15, TO PUBLIC SCHOOL AFTER THEY
COMPLETED THE EIGHTH GRADE.  /1/  THE CHILDREN WERE NOT ENROLLED IN ANY
PRIVATE SCHOOL, OR WITHIN ANY RECOGNIZED EXCEPTION TO THE COMPULSORY
ATTENDANCE LAW, /2/ AND THEY ARE CONCEDED TO BE SUBJECT TO THE
WISCONSIN STATUTE. 

ON COMPLAINT OF THE SCHOOL DISTRICT ADMINISTRATOR FOR THE PUBLIC
SCHOOLS, RESPONDENTS WERE CHARGED, TRIED, AND CONVICTED OF VIOLATING
THE COMPULSORY-ATTENDANCE LAW IN GREEN COUNTY COURT AND WERE FINED THE
SUM OF $5 EACH.  /3/  RESPONDENTS DEFENDED ON THE GROUND THAT THE
APPLICATION OF THE COMPULSORY-ATTENDANCE LAW VIOLATED THEIR RIGHTS
UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  /4/  THE TRIAL TESTIMONY
SHOWED THAT RESPONDENTS BELIEVED, IN ACCORDANCE WITH THE TENETS OF OLD
ORDER AMISH COMMUNITIES GENERALLY, THAT THEIR CHILDREN'S ATTENDANCE AT
HIGH SCHOOL, PUBLIC OR PRIVATE, WAS CONTRARY TO THE AMISH RELIGION AND
WAY OF LIFE.  THEY BELIEVED THAT BY SENDING THEIR CHILDREN TO HIGH
SCHOOL, THEY WOULD NOT ONLY EXPOSE THEMSELVES TO THE DANGER OF THE
CENSURE OF THE CHURCH COMMUNITY, BUT, AS FOUND BY THE COUNTY COURT,
ALSO ENDANGER THEIR OWN SALVATION AND THAT OF THEIR CHILDREN.  THE
STATE STIPULATED THAT RESPONDENT'S RELIGIOUS BELIEFS WERE SINCERE. 

IN SUPPORT OF THEIR POSITION, RESPONDENTS PRESENTED AS EXPERT
WITNESSES SCHOLARS ON RELIGION AND EDUCATION WHOSE TESTIMONY IS
UNCONTRADICTED.  THEY EXPRESSED THEIR OPINIONS ON THE RELATIONSHIP OF
THE AMISH BELIEF CONCERNING SCHOOL ATTENDANCE TO THE MORE GENERAL
TENETS OF THEIR RELIGION, AND DESCRIBED THE IMPACT THAT COMPULSORY HIGH
SCHOOL ATTENDANCE COULD HAVE ON THE CONTINUED SURVIVAL OF AMISH
COMMUNITIES AS THEY EXIST IN THE UNITED STATES TODAY.  THE HISTORY OF
THE AMISH SECT WAS GIVEN IN SOME DETAIL, BEGINNING WITH THE SWISS
ANABAPTISTS OF THE 16TH CENTURY WHO REJECTED INSTITUTIONALIZED CHURCHES
AND SOUGHT TO RETURN TO THE EARLY, SIMPLE, CHRISTIAN LIFE DE
EMPHASIZING MATERIAL SUCCESS, REJECTING THE COMPETITIVE SPIRIT, AND
SEEKING TO INSULATE THEMSELVES FROM THE MODERN WORLD.  AS A RESULT OF
THEIR COMMON HERITAGE, OLD ORDER AMISH COMMUNITIES TODAY ARE
CHARACTERIZED BY A FUNDAMENTAL BELIEF THAT SALVATION REQUIRES LIFE IN A
CHURCH COMMUNITY SEPARATE AND APART FROM THE WORLD AND WORLDLY
INFLUENCE.  THIS CONCEPT OF LIFE ALOOF FROM THE WORLD AND ITS VALUES IS
CENTRAL TO THEIR FAITH. 

A RELATED FEATURE OF OLD ORDER AMISH COMMUNITIES IS THEIR DEVOTION
TO A LIFE IN HARMONY WITH NATURE AND THE SOIL, AS EXEMPLIFIED BY THE
SIMPLE LIFE OF THE EARLY CHRISTIAN ERA THAT CONTINUED IN AMERICA DURING
MUCH OF OUR EARLY NATIONAL LIFE.  AMISH BELIEFS REQUIRE MEMBERS OF THE
COMMUNITY TO MAKE THEIR LIVING BY FARMING OR CLOSELY RELATED
ACTIVITIES.  BROADLY SPEAKING, THE OLD ORDER AMISH RELIGION PERVADES
AND DETERMINES THE ENTIRE MODE OF LIFE OF ITS ADHERENTS.  THEIR CONDUCT
IS REGULATED IN GREAT DETAIL BY THE ORDNUNG, OR RULES, OF THE CHURCH
COMMUNITY.  ADULT BAPTISM, WHICH OCCURS IN LATE ADOLESCENCE, IS THE
TIME AT WHICH AMISH YOUNG PEOPLE VOLUNTARILY UNDERTAKE HEAVY
OBLIGATIONS, NOT UNLIKE THE BAR MITZVAH OF THE JEWS, TO ABIDE BY THE
RULES OF THE CHURCH COMMUNITY.  /5/ 

AMISH OBJECTION TO FORMAL EDUCATION BEYOND THE EIGHTH GRADE IS
FIRMLY GROUNDED IN THESE CENTRAL RELIGIOUS CONCEPTS.  THEY OBJECT TO
THE HIGH SCHOOL, AND HIGHER EDUCATION GENERALLY, BECAUSE THE VALUES
THEY TEACH ARE IN MARKED VARIANCE WITH AMISH VALUES AND THE AMISH WAY
OF LIFE; THEY VIEW SECONDARY SCHOOL EDUCATION AS AN IMPERMISSIBLE
EXPOSURE OF THEIR CHILDREN TO A "WORLDLY" INFLUENCE IN CONFLICT WITH
THEIR BELIEFS.  THE HIGH SCHOOL TENDS TO EMPHASIZE INTELLECTUAL AND
SCIENTIFIC ACCOMPLISHMENTS, SELF-DISTINCTION, COMPETITIVENESS, WORLDLY
SUCCESS, AND SOCIAL LIFE WITH OTHER STUDENTS.  AMISH SOCIETY EMPHASIZES
INFORMAL LEARNING-THROUGH-DOING; A LIFE OF "GOODNESS," RATHER THAN A
LIFE OF INTELLECT; WISDOM, RATHER THAN TECHNICAL KNOWLEDGE; COMMUNITY
WELFARE, RATHER THAN COMPETITION; AND SEPARATION FROM, RATHER THAN
INTEGRATION WITH, CONTEMPORARY WORLDLY SOCIETY. 

FORMAL HIGH SCHOOL EDUCATION BEYOND THE EIGHTH GRADE IS CONTRARY TO
AMISH BELIEFS, NOT ONLY BECAUSE IT PLACES AMISH CHILDREN IN AN
ENVIRONMENT HOSTILE TO AMISH BELIEFS WITH INCREASING EMPHASIS ON
COMPETITION IN CLASS WORK AND SPORTS AND WITH PRESSURE TO CONFORM TO
THE STYLES, MANNERS, AND WAYS OF THE PEER GROUP, BUT ALSO BECAUSE IT
TAKES THEM AWAY FROM THEIR COMMUNITY, PHYSICALLY AND EMOTIONALLY,
DURING THE CRUCIAL AND FORMATIVE ADOLESCENT PERIOD OF LIFE.  DURING
THIS PERIOD, THE CHILDREN MUST ACQUIRE AMISH ATTITUDES FAVORING MANUAL
WORK AND SELF-RELIANCE AND THE SPECIFIC SKILLS NEEDED TO PERFORM THE
ADULT ROLE OF AN AMISH FARMER OR HOUSEWIFE.  THEY MUST LEARN TO ENJOY
PHYSICAL LABOR.  ONCE A CHILD HAS LEARNED BASIC READING, WRITING, AND
ELEMENTARY MATHEMATICS, THESE TRAITS, SKILLS, AND ATTITUDES ADMITTEDLY
FALL WITHIN THE CATEGORY OF THOSE BEST LEARNED THROUGH EXAMPLE AND
"DOING" RATHER THAN IN A CLASSROOM.  AND, AT THIS TIME IN LIFE, THE
AMISH CHILD MUST ALSO GROW IN HIS FAITH AND HIS RELATIONSHIP TO THE
AMISH COMMUNITY IF HE IS TO BE PREPARED TO ACCEPT THE HEAVY OBLIGATIONS
IMPOSED BY ADULT BAPTISM.  IN SHORT, HIGH SCHOOL ATTENDANCE WITH
TEACHERS WHO ARE NOT OF THE AMISH FAITH-- AND MAY EVEN BE HOSTILE TO IT
- INTERPOSES A SERIOUS BARRIER TO THE INTEGRATION OF THE AMISH CHILD
INTO THE AMISH RELIGIOUS COMMUNITY.  DR. JOHN HOSTETLER, ONE OF THE
EXPERTS ON AMISH SOCIETY, TESTIFIED THAT THE MODERN HIGH SCHOOL IS NOT
EQUIPPED, IN CURRICULUM OR SOCIAL ENVIRONMENT, TO IMPART THE VALUES
PROMOTED BY AMISH SOCIETY. 

THE AMISH DO NOT OBJECT TO ELEMENTARY EDUCATION THROUGH THE FIRST
EIGHT GRADES AS A GENERAL PROPOSITION BECAUSE THEY AGREE THAT THEIR
CHILDREN MUST HAVE BASIC SKILLS IN THE "THREE R'S" IN ORDER TO READ THE
BIBLE, TO BE GOOD FARMERS AND CITIZENS, AND TO BE ABLE TO DEAL WITH NON
AMISH PEOPLE WHEN NECESSARY IN THE COURSE OF DAILY AFFAIRS.  THEY VIEW
SUCH A BASIC EDUCATION AS ACCEPTABLE BECAUSE IT DOES NOT SIGNIFICANTLY
EXPOSE THEIR CHILDREN TO WORLDLY VALUES OR INTERFERE WITH THEIR
DEVELOPMENT IN THE AMISH COMMUNITY DURING THE CRUCIAL ADOLESCENT
PERIOD.  WHILE AMISH ACCEPT COMPULSORY ELEMENTARY EDUCATION GENERALLY,
WHEREVER POSSIBLE THEY HAVE ESTABLISHED THEIR OWN ELEMENTARY SCHOOLS IN
MANY RESPECTS LIKE THE SMALL LOCAL SCHOOLS OF THE PAST.  IN THE AMISH
BELIEF HIGHER LEARNING TENDS TO DEVELOP VALUES THEY REJECT AS
INFLUENCES THAT ALIENATE MAN FROM GOD. 

ON THE BASIS OF SUCH CONSIDERATIONS, DR. HOSTETLER TESTIFIED THAT
COMPULSORY HIGH SCHOOL ATTENDANCE COULD NOT ONLY RESULT IN GREAT
PSYCHOLOGICAL HARM TO AMISH CHILDREN, BECAUSE OF THE CONFLICTS IT WOULD
PRODUCE, BUT WOULD ALSO, IN HIS OPINION, ULTIMATELY RESULT IN THE
DESTRUCTION OF THE OLD ORDER AMISH CHURCH COMMUNITY AS ITS EXISTS IN
THE UNITED STATES TODAY.  THE TESTIMONY OF DR. DONALD A. ERICKSON, AN
EXPERT WITNESS ON EDUCATION, ALSO SHOWED THAT THE AMISH SUCCEED IN
PREPARING THEIR HIGH SCHOOL AGE CHILDREN TO BE PRODUCTIVE MEMBERS OF
THE AMISH COMMUNITY.  HE DESCRIBED THEIR SYSTEM OF LEARNING THROUGH
DOING THE SKILLS DIRECTLY RELEVANT TO THEIR ADULT ROLES IN THE AMISH
COMMUNITY AS "IDEAL" AND PERHAPS SUPERIOR TO ORDINARY HIGH SCHOOL
EDUCATION.  THE EVIDENCE ALSO SHOWED THAT THE AMISH HAVE AN EXCELLENT
RECORD AS LAW-ABIDING AND GENERALLY SELF-SUFFICIENT MEMBERS OF
SOCIETY. 

ALTHOUGH THE TRIAL COURT IN ITS CAREFUL FINDINGS DETERMINED THAT THE
WISCONSIN COMPULSORY SCHOOL-ATTENDANCE LAW "DOES INTERFERE WITH THE
FREEDOM OF THE DEFENDANTS TO ACT IN ACCORDANCE WITH THEIR SINCERE
RELIGIOUS BELIEF" IT ALSO CONCLUDED THAT THE REQUIREMENT OF HIGH SCHOOL
ATTENDANCE UNTIL AGE 16 WAS A "REASONABLE AND CONSTITUTIONAL" EXERCISE
OF GOVERNMENTAL POWER, AND THEREFORE DENIED THE MOTION TO DISMISS THE
CHARGES.  THE WISCONSIN CIRCUIT COURT AFFIRMED THE CONVICTIONS.  THE
WISCONSIN SUPREME COURT, HOWEVER, SUSTAINED RESPONDENTS' CLAIM UNDER
THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT AND REVERSED THE
CONVICTIONS.  A MAJORITY OF THE COURT WAS OF THE OPINION THAT THE STATE
HAD FAILED TO MAKE AN ADEQUATE SHOWING THAT ITS INTEREST IN
"ESTABLISHING AND MAINTAINING AN EDUCATIONAL SYSTEM OVERRIDES THE
DEFENDANTS' RIGHT TO THE FREE EXERCISE OF THEIR RELIGION."  49 WIS.2D
430, 447, 182 N.W.2D 539, 547(1971). 

        I 

THERE IS NO DOUBT AS TO THE POWER OF A STATE, HAVING A HIGH
RESPONSIBILITY FOR EDUCATION OF ITS CITIZENS, TO IMPOSE REASONABLE
REGULATIONS FOR THE CONTROL AND DURATION OF BASIC EDUCATION.  SEE,
E.G., PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, 534(1925).  PROVIDING
PUBLIC SCHOOLS RANKS AT THE VERY APEX OF THE FUNCTION OF A STATE.  YET
EVEN THIS PARAMOUNT RESPONSIBILITY WAS, IN PIERCE, MADE TO YIELD TO THE
RIGHT OF PARENTS TO PROVIDE AN EQUIVALENT EDUCATION IN A PRIVATELY
OPERATED SYSTEM.  THERE THE COURT HELD THAT OREGON'S STATUTE COMPELLING
ATTENDANCE IN A PUBLIC SCHOOL FROM AGE EIGHT TO AGE 16 UNREASONABLY
INTERFERED WITH THE INTEREST OF PARENTS IN DIRECTING THE REARING OF
THEIR OFFSPRING, INCLUDING THEIR EDUCATION IN CHURCH-OPERATED SCHOOLS. 
AS THAT CASE SUGGESTS, THE VALUES OF PARENTAL DIRECTION OF THE
RELIGIOUS UPBRINGING AND EDUCATION OF THEIR CHILDREN IN THEIR EARLY AND
FORMATIVE YEARS HAVE A HIGH PLACE IN OUR SOCIETY.  SEE ALSO GINSBERG V.
NEW YORK, 390 U.S. 629, 639(1968); MEYER V. NEBRASKA, 262 U.S.
390(1923); CF. ROWAN V. POST OFFICE DEPT., 397 U.S. 728(1970).  THUS, A
STATE'S INTEREST IN UNIVERSAL EDUCATION, HOWEVER, HIGHLY WE RANK IT, IS
NOT TOTALLY FREE FROM A BALANCING PROCESS WHEN IT IMPINGES ON
FUNDAMENTAL RIGHTS AND INTERESTS, SUCH AS THOSE SPECIFICALLY PROTECTED
BY THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT, AND THE TRADITIONAL
INTEREST OF PARENTS WITH RESPECT TO THE RELIGIOUS UPBRINGING OF THEIR
CHILDREN SO LONG AS THEY, IN THE WORDS OF PIERCE, "PREPARE (THEM) FOR
ADDITIONAL OBLIGATIONS."  168 U.S.,AT 535. 

IT FOLLOWS THAT IN ORDER FOR WISCONSIN TO COMPEL SCHOOL ATTENDANCE
BEYOND THE EIGHTH GRADE AGAINST A CLAIM THAT SUCH ATTENDANCE INTERFERES
WITH THE PRACTICE OF A LEGITIMATE RELIGIOUS BELIEF, IT MUST APPEAR
EITHER THAT THE STATE DOES NOT DENY THE FREE EXERCISE OF RELIGIOUS
BELIEF BY ITS REQUIREMENT, OR THAT THERE IS A STATE INTEREST OF
SUFFICIENT MAGNITUDE TO OVERRIDE THE INTEREST CLAIMING PROTECTION UNDER
THE FREE EXERCISE CLAUSE.  LONG BEFORE THERE WAS GENERAL ACKNOWLEDGMENT
OF THE NEED FOR UNIVERSAL FORMAL EDUCATION, THE RELIGION CLAUSES HAD
SPECIFICALLY AND FIRMLY FIXED THE RIGHT TO FREE EXERCISE OF RELIGIOUS
BELIEFS, AND BUTTRESSING THIS FUNDAMENTAL RIGHT WAS AN EQUALLY FIRM,
EVEN IF LESS EXPLICIT, PROHIBITION AGAINST THE ESTABLISHMENT OF ANY
RELIGION BY GOVERNMENT.  THE VALUES UNDERLYING THESE TWO PROVISIONS
RELATING TO RELIGION HAVE BEEN ZEALOUSLY PROTECTED, SOMETIMES EVEN AT
THE EXPENSE OF OTHER INTERESTS OF ADMITTEDLY HIGH SOCIAL IMPORTANCE. 
THE INVALIDATION OF FINANCIAL AID TO PAROCHIAL SCHOOLS BY GOVERNMENT
GRANTS FOR A SALARY SUBSIDY FOR TEACHERS IS BUT ONE EXAMPLE OF THE
EXTENT TO WHICH COURTS HAVE GONE IN THIS REGARD, NOTWITHSTANDING THAT
SUCH AID PROGRAMS WERE LEGISLATIVELY DETERMINED TO BE IN THE PUBLIC
INTEREST AND THE SERVICE OF SOUND EDUCATIONAL POLICY BY STATES AND BY
CONGRESS.  LEMON V. KURTZMAN, 403 U.S. 602(1971); TILTON V. RICHARDSON,
403 U.S. 672(1971).  SEE ALSO EVERSON V. BOARD OF EDUCATION, 330 U.S.
1, 18(1947). 

THE ESSENCE OF ALL THAT HAS BEEN SAID AND WRITTEN ON THE SUBJECT IS
THAT ONLY THOSE INTEREST OF THE HIGHEST ORDER AND THOSE NOT OTHERWISE
SERVED CAN OVERBALANCE LEGITIMATE CLAIMS TO THE FREE EXERCISE OF
RELIGION.  WE CAN ACCEPT IT AS SETTLED, THEREFORE, THAT, HOWEVER STRONG
THE STATE'S INTEREST IN UNIVERSAL COMPULSORY EDUCATION, IT IS BY NO
MEANS ABSOLUTE TO THE EXCLUSION OR SUBORDINATION OF ALL OTHER
INTERESTS.  E.G., SHERBERT V. VERNER, 374 U.S. 398(1963); MCGOWAN V.
MARYLAND, 366 U.S. 420, 459(1961) (SEPARATE OPINION OF FRANKFURTER,
J.); PRINCE V. MASSACHUSETTS, 321 U.S. 158, 165(1944). 

        II 

WE COME THEN TO THE QUALITY OF THE CLAIMS OF THE RESPONDENTS
CONCERNING THE ALLEGED ENCROACHMENT OF WISCONSIN'S COMPULSORY SCHOOL
ATTENDANCE STATUTE ON THEIR RIGHTS AND THE RIGHTS OF THEIR CHILDREN TO
THE FREE EXERCISE OF THE RELIGIOUS BELIEFS THEY AND THEIR FOREBEARS
HAVE ADHERED TO FOR ALMOST THREE CENTURIES.  IN EVALUATING THOSE CLAIMS
WE MUST BE CAREFUL TO DETERMINE WHETHER THE AMISH RELIGIOUS FAITH AND
THEIR MODE OF LIFE ARE, AS THEY CLAIM, INSEPARABLE AND INTERDEPENDENT. 
A WAY OF LIFE, HOWEVER VIRTUOUS AND ADMIRABLE, MAY NOT BE INTERPOSED AS
A BARRIER TO REASONABLE STATE REGULATION OF EDUCATION IF IT IS BASED ON
PURELY SECULAR CONSIDERATIONS; TO HAVE THE PROTECTION OF THE RELIGION
CLAUSES, THE CLAIMS MUST BE ROOTED IN RELIGIOUS BELIEF.  ALTHOUGH A
DETERMINATION OF WHAT IS A "RELIGIOUS"  BELIEF OR PRACTICE ENTITLED TO
CONSTITUTIONAL PROTECTION MAY PRESENT A MOST DELICATE QUESTION, /6/
THE VERY CONCEPT OF ORDERED LIBERTY PRECLUDES ALLOWING EVERY PERSON TO
MAKE HIS OWN STANDARDS ON MATTERS OF CONDUCT IN WHICH SOCIETY AS A
WHOLE HAS IMPORTANT INTERESTS.  THUS, IF THE AMISH ASSERTED THEIR
CLAIMS BECAUSE OF THEIR SUBJECTIVE EVALUATION AND REJECTION OF THE
CONTEMPORARY SECULAR VALUES ACCEPTED BY THE MAJORITY, MUCH AS THOREAU
REJECTED THE SOCIAL VALUES OF HIS TIME AND ISOLATED HIMSELF AT WALDEN
POND, THEIR CLAIMS WOULD NOT REST ON A RELIGIOUS BASIS.  THOREAU'S
CHOICE WAS PHILOSOPHICAL AND PERSONAL RATHER THAN RELIGIOUS, AND SUCH
BELIEF DOES NOT RISE TO THE DEMANDS OF THE RELIGION CLAUSES. 

GIVING NO WEIGHT TO SUCH SECULAR CONSIDERATIONS, HOWEVER, WE SEE
THAT THE RECORD IN THIS CASE ABUNDANTLY SUPPORTS THE CLAIM THAT THE
TRADITIONAL WAY OF LIFE OF THE AMISH IS NOT MERELY A MATTER OF PERSONAL
PREFERENCE, BUT ONE OF DEEP RELIGIOUS CONVICTION, SHARED BY AN
ORGANIZED GROUP, AND INTIMATELY RELATED TO DAILY LIVING.  THAT THE OLD
ORDER AMISH DAILY LIFE AND RELIGIOUS PRACTICE STEM FROM THEIR FAITH IS
SHOWN BY THE FACT THAT IT IS IN RESPONSE TO THEIR LITERAL
INTERPRETATION OF THE BIBLICAL INJUNCTION FROM THE EPISTLE OF PAUL TO
THE ROMANS, "BE NOT CONFORMED TO THIS WORLD.  . . . "  THIS COMMAND IS
FUNDAMENTAL TO THE AMISH FAITH.  MOREOVER, FOR THE OLD ORDER AMISH,
RELIGION IS NOT SIMPLY A MATTER OF THEOCRATIC BELIEF.  AS THE EXPERT
WITNESSES EXPLAINED, THE OLD ORDER AMISH RELIGION PERVADES AND
DETERMINES VIRTUALLY THEIR ENTIRE WAY OF LIFE, REGULATING IT WITH THE
DETAIL OF THE TALMUDIC DIET THROUGH THE STRICTLY ENFORCED RULES OF THE
CHURCH COMMUNITY. 

THE RECORD SHOWS THAT THE RESPONDENTS' RELIGIOUS BELIEFS AND
ATTITUDE TOWARD LIFE, FAMILY, AND HOME HAVE REMAINED CONSTANT-- PERHAPS
SOME WOULD SAY STATIC-- IN A PERIOD OF UNPARALLELED PROGRESS IN HUMAN
KNOWLEDGE GENERALLY AND GREAT CHANGES IN EDUCATION.  /7/  THE
RESPONDENTS FREELY CONCEDE, AND INDEED ASSERT AS AN ARTICLE OF FAITH,
THAT THEIR RELIGIOUS BELIEFS AND WHAT WE WOULD TODAY CALL "LIFE STYLE"
HAVE NOT ALTERED IN FUNDAMENTALS FOR CENTURIES.  THEIR WAY OF LIFE IN A
CHURCH-ORIENTED COMMUNITY, SEPARATED FROM THE OUTSIDE WORLD AND
"WORLDLY" INFLUENCES, THEIR ATTACHMENT TO NATURE AND THE SOIL, IS A WAY
INHERENTLY SIMPLE AND UNCOMPLICATED, ALBEIT DIFFICULT TO PRESERVE
AGAINST THE PRESSURE TO CONFORM.  THEIR REJECTION OF TELEPHONES,
AUTOMOBILES, RADIOS, AND TELEVISION, THEIR MODE OF DRESS, OF SPEECH,
THEIR HABITS OF MANUAL WORK DO INDEED SET THEM APART FROM MUCH OF
CONTEMPORARY SOCIETY; THESE CUSTOMS ARE BOTH SYMBOLIC AND PRACTICAL. 

AS THE SOCIETY AROUND THE AMISH HAS BECOME MORE POPULOUS, URBAN,
INDUSTRIALIZED, AND COMPLEX, PARTICULARLY IN THIS CENTURY, GOVERNMENT
REGULATION OF HUMAN AFFAIRS HAS CORRESPONDINGLY BECOME MORE DETAILED
AND PERVASIVE.  THE AMISH MODE OF LIFE HAS THUS COME INTO CONFLICT
INCREASINGLY WITH REQUIREMENTS OF CONTEMPORARY SOCIETY EXERTING A
HYDRAULIC INSISTENCE ON CONFORMITY TO MAJORITARIAN STANDARDS.  SO LONG
AS COMPULSORY EDUCATION LAWS WERE CONFINED TO EIGHT GRADES OF
ELEMENTARY BASIC EDUCATION IMPARTED IN A NEARBY RURAL SCHOOLHOUSE, WITH
A LARGE PROPORTION OF STUDENTS OF THE AMISH FAITH, THE OLD ORDER AMISH
HAD LITTLE BASIS TO FEAR THAT SCHOOL ATTENDANCE WOULD EXPOSE THEIR
CHILDREN TO THE WORLDLY INFLUENCE THEY REJECT.  BUT MODERN COMPULSORY
SECONDARY EDUCATION IN RURAL AREAS IS NOW LARGELY CARRIED ON IN A
CONSOLIDATED SCHOOL, OFTEN REMOTE FROM THE STUDENT'S HOME AND ALIEN TO
HIS DAILY HOME LIFE.  AS THE RECORD SO STRONGLY SHOWS, THE VALUES AND
PROGRAMS OF THE MODERN SECONDARY SCHOOL ARE IN SHARP CONFLICT WITH THE
FUNDAMENTAL MODE OF LIFE MANDATED BY THE AMISH RELIGION; MODERN LAWS
REQUIRING COMPULSORY SECONDARY EDUCATION HAVE ACCORDINGLY ENGENDERED
GREAT CONCERN AND CONFLICT.  /8/  THE CONCLUSION IS INESCAPABLE THAT
SECONDARY SCHOOLING, BY EXPOSING AMISH CHILDREN TO WORLDLY INFLUENCES
IN TERMS OF ATTITUDES, GOALS, AND VALUES CONTRARY TO BELIEFS, AND BY
SUBSTANTIALLY INTERFERING WITH THE RELIGIOUS DEVELOPMENT OF THE AMISH
CHILD AND HIS INTEGRATION INTO THE WAY OF LIFE OF THE AMISH FAITH
COMMUNITY AT THE CRUCIAL ADOLESCENT STAGE OF DEVELOPMENT, CONTRAVENES
THE BASIC RELIGIOUS TENETS AND PRACTICE OF THE AMISH FAITH, BOTH AS TO
THE PARENT AND THE CHILD. 

THE IMPACT OF THE COMPULSORY-ATTENDANCE LAW ON RESPONDENTS' PRACTICE
OF THE AMISH RELIGION IS NOT ONLY SEVERE, BUT INESCAPABLE, FOR THE
WISCONSIN LAW AFFIRMATIVELY COMPELS THEM, UNDER THREAT OF CRIMINAL
SANCTION, TO PERFORM ACTS UNDENIABLY AT ODDS WITH FUNDAMENTAL TENETS OF
THEIR RELIGIOUS BELIEFS.  SEE BRAUNFELD V. BROWN, 366 U.S. 599,
605(1961).  NOR IS THE IMPACT OF THE COMPULSORY-ATTENDANCE LAW CONFINED
TO GRAVE INTERFERENCE WITH IMPORTANT AMISH RELIGIOUS TENETS FROM A
SUBJECTIVE POINT OF VIEW.  IT CARRIES WITH IT PRECISELY THE KIND OF
OBJECTIVE DANGER TO THE FREE EXERCISE OF RELIGION THAT THE FIRST
AMENDMENT WAS DESIGNED TO PREVENT.  AS THE RECORD SHOWS, COMPULSORY
SCHOOL ATTENDANCE TO AGE 16 FOR AMISH CHILDREN CARRIES WITH IT A VERY
REAL THREAT OF UNDERMINING THE AMISH COMMUNITY AND RELIGIOUS PRACTICE
AS THEY EXIST TODAY; THEY MUST EITHER ABANDON BELIEF AND BE ASSIMILATED
INTO SOCIETY AT LARGE, OR BE FORCED TO MIGRATE TO SOME OTHER AND MORE
TOLERANT REGION.  /9/ 

IN SUM, THE UNCHALLENGED TESTIMONY OF ACKNOWLEDGED EXPERTS IN
EDUCATION AND RELIGIOUS HISTORY, ALMOST 300 YEARS OF CONSISTENT
PRACTICE, AND STRONG EVIDENCE OF A SUSTAINED FAITH PERVADING AND
REGULATING RESPONDENTS' ENTIRE MODE OF LIFE SUPPORT THE CLAIM THAT
ENFORCEMENT OF THE STATE'S REQUIREMENT OF COMPULSORY FORMAL EDUCATION
AFTER THE EIGHTH GRADE WOULD GRAVELY ENDANGER IF NOT DESTROY THE FREE
EXERCISE OF RESPONDENT'S RELIGIOUS BELIEFS

        III 

NEITHER THE FINDINGS OF THE TRIAL COURT NOR THE AMISH CLAIMS AS TO
THE NATURE OF THEIR FAITH ARE CHALLENGED IN THIS COURT BY THE STATE OF
WISCONSIN.  ITS POSITION IS THAT THE STATE'S INTEREST IN UNIVERSAL
COMPULSORY FORMAL SECONDARY EDUCATION TO AGE 16 IS SO GREAT THAT IT IS
PARAMOUNT TO THE UNDISPUTED CLAIMS OF RESPONDENTS THAT THEIR MODE OF
PREPARING THEIR YOUTH FOR AMISH LIFE, AFTER THE TRADITIONAL ELEMENTARY
EDUCATION, IS AN ESSENTIAL PART OF THEIR RELIGIOUS BELIEF AND
PRACTICE.  NOR DOES THE STATE UNDERTAKE TO MEET THE CLAIM THAT THE
AMISH MODE OF LIFE AND EDUCATION IS INSEPARABLE FROM AND A PART OF THE
BASIC TENETS OF THEIR RELIGION-- INDEED, AS MUCH A PART OF THEIR
RELIGIOUS BELIEF AND PRACTICES AS BAPTISM, AND THE CONFESSIONAL, OR A
SABBATH MAY BE FOR OTHERS. 

WISCONSIN CONCEDES THAT UNDER THE RELIGION CLAUSES RELIGIOUS BELIEFS
ARE ABSOLUTELY FREE FROM THE STATE'S CONTROL, BUT IT ARGUES THAT
"ACTIONS," EVEN THOUGH RELIGIOUSLY GROUNDED, ARE OUTSIDE THE PROTECTION
OF THE FIRST AMENDMENT.  /10/  BUT OUR DECISIONS HAVE REJECTED THE IDEA
THAT RELIGIOUSLY GROUNDED CONDUCT IS ALWAYS OUTSIDE THE PROTECTION OF
THE FREE EXERCISE CLAUSE.  IT IS TRUE THAT ACTIVITIES OF INDIVIDUALS,
EVEN WHEN RELIGIOUSLY BASED, ARE OFTEN SUBJECT TO REGULATION BY THE
STATES IN THE EXERCISE OF THEIR UNDOUBTED POWER TO PROMOTE THE HEALTH,
SAFETY, AND GENERAL WELFARE, OR THE FEDERAL GOVERNMENT IN THE EXERCISE
OF ITS DELEGATED POWERS.  SEE E.G., GILLETTE V. UNITED STATES, 401 U.S.
437(1971); BRAUNFELD V. BROWN, 366 U.S. 599(1B961); PRINCE V.
MASSACHUSETTS, 321 U.S. 158(1944); REYNOLDS V. UNITED STATES, 98 U.S.
145(1879).  BUT TO AGREE THAT RELIGIOUSLY GROUNDED CONDUCT MUST OFTEN
BE SUBJECT TO THE BROAD POLICE POWER OF THE STATE IS NOT TO DENY THAT
THERE ARE AREAS OF CONDUCT PROTECTED BY THE FREE EXERCISE CLAUSE OF THE
FIRST AMENDMENT AND THUS BEYOND THE POWER OF THE STATE TO CONTROL, EVEN
UNDER REGULATIONS OF GENERAL APPLICABILITY.  E.G., SHERBERT V. VERNER,
374 U.S. 398(1963); MURDOCK V. PENNSYLVANIA, 319 U.S. 105(1943);
CANTWELL V. CONNECTICUT, 310 U.S. 296, 303-304(1940).  THIS CASE,
THEREFORE, DOES NOT BECOME EASIER BECAUSE RESPONDENTS WERE CONVICTED
FOR THEIR "ACTIONS" IN REFUSING TO SEND THEIR CHILDREN TO THE PUBLIC
HIGH SCHOOL; IN THIS CONTEXT BELIEF AND ACTION CANNOT BE NEATLY
CONFINED IN LOGIC-TIGHT COMPARTMENTS.  CF. LEMON V. KURTZMAN, 403
U.S.,AT 612. 

NOR CAN THIS CASE BE DISPOSED OF ON THE GROUNDS THAT WISCONSIN'S
REQUIREMENT FOR SCHOOL ATTENDANCE TO AGE 16 APPLIES UNIFORMLY TO ALL
CITIZENS OF THE STATE AND DOES NOT, ON ITS FACE, DISCRIMINATE AGAINST
RELIGIONS OR A PARTICULAR RELIGION, OR THAT IT IS MOTIVATED BY
LEGITIMATE SECULAR CONCERNS.  A REGULATION NEUTRAL ON ITS FACE MAY, IN
ITS APPLICATION, NONETHELESS OFFEND THE CONSTITUTIONAL REQUIREMENT FOR
GOVERNMENTAL NEUTRALITY IF IT UNDULY BURDENS THE FREE EXERCISE OF
RELIGION.  SHERBERT V. VERNER, SUPRA; CF. WALZ V. TAX COMMISSIONER, 397
U.S. 664(1970).  THE COURT MUST NOT IGNORE THE DANGER THAT AN EXCEPTION
FROM A GENERAL OBLIGATION OF CITIZENSHIP ON RELIGIOUS GROUNDS MAY RUN
AFOUL OF THE ESTABLISHMENT CLAUSE, BUT THAT DANGER CANNOT BE ALLOWED TO
PREVENT ANY EXCEPTION NO MATTER HOW VITAL IT MAY BE TO THE PROTECTION
OF VALUES PROMOTED BY THE RIGHT OF FREE EXERCISE.  BY PRESERVING
DOCTRINAL FLEXIBILITY AND RECOGNIZING THE NEED FOR A SENSIBLE AND
REALISTIC APPLICATION OF THE RELIGION CLAUSES 

"WE HAVE BEEN ABLE TO CHART A COURSE THAT PRESERVED THE AUTONOMY AND
FREEDOM OF RELIGIOUS BODIES WHILE AVOIDING ANY SEMBLANCE OF ESTABLISHED
RELIGION.  THIS IS A 'TIGHT ROPE' AND ONE WE HAVE SUCCESSFULLY
TRAVERSED."  WALZ V. TAX COMMISSION, SUPRA, AT 671. 

WE TURN, THEN, TO THE STATE'S BROADER CONTENTION THAT ITS INTEREST
IN ITS SYSTEM OF COMPULSORY EDUCATION IS SO COMPELLING THAT EVEN THE
ESTABLISHED RELIGIOUS PRACTICES OF THE AMISH MUST GIVE WAY.  WHERE
FUNDAMENTAL CLAIMS OF RELIGIOUS FREEDOM ARE AT STAKE, HOWEVER, WE
CANNOT ACCEPT SUCH A SWEEPING CLAIM; DESPITE ITS ADMITTED VALIDITY IN
THE GENERALITY OF CASES, WE MUST SEARCHINGLY EXAMINE THE INTERESTS THAT
THE STATE SEEKS TO PROMOTE BY ITS REQUIREMENT FOR COMPULSORY EDUCATION
TO AGE 16, AND THE IMPEDIMENT TO THOSE OBJECTIVES THAT WOULD FLOW FROM
RECOGNIZING THE CLAIMED AMISH EXEMPTION.  SEE, E.G., SHERBERT V.
VERNER, SUPRA; U.S. 147(1939). 

THE STATE ADVANCES TWO PRIMARY ARGUMENTS IN SUPPORT OF ITS SYSTEM OF
COMPULSORY EDUCATION.  IT NOTES, AS THOMAS JEFFERSON POINTED OUT EARLY
IN OUR HISTORY, THAT SOME DEGREE OF EDUCATION IS NECESSARY TO PREPARE
CITIZENS TO PARTICIPATE EFFECTIVELY AND INTELLIGENTLY IN OUR OPEN
POLITICAL SYSTEM IF WE ARE TO PRESERVE FREEDOM AND INDEPENDENCE. 
FURTHER, EDUCATION PREPARES INDIVIDUALS TO BE SELF-RELIANT AND SELF
SUFFICIENT PARTICIPANTS IN SOCIETY.  WE ACCEPT THESE PROPOSITIONS. 

HOWEVER, THE EVIDENCE ADDUCED BY THE AMISH IN THIS CASE IS
PERSUASIVELY TO THE EFFECT THAT AN ADDITIONAL ONE OR TWO YEARS OF
FORMAL HIGH SCHOOL FOR AMISH CHILDREN IN PLACE OF THEIR LONG
ESTABLISHED PROGRAM OF INFORMAL VOCATIONAL EDUCATION WOULD DO LITTLE TO
SERVE THOSE INTERESTS.  RESPONDENTS' EXPERTS TESTIFIED AT TRIAL,
WITHOUT CHALLENGE, THAT THE VALUE OF ALL EDUCATION MUST BE ASSESSED IN
TERMS OF ITS CAPACITY TO PREPARE THE CHILD FOR LIFE.  IT IS ONE THING
TO SAY THAT COMPULSORY EDUCATION FOR A YEAR OR TWO BEYOND THE EIGHTH
GRADE MAY BE NECESSARY WHEN ITS GOAL IS THE PREPARATION OF THE CHILD
FOR LIFE IN MODERN SOCIETY AS THE MAJORITY LIVE, BUT IT IS QUITE
ANOTHER IF THE GOAL OF EDUCATION BE VIEWED AS THE PREPARATION OF THE
CHILD FOR LIFE IN THE SEPARATED AGRARIAN COMMUNITY THAT IS THE KEYSTONE
OF THE AMISH FAITH.  SEE MEYER V. NEBRASKA, 262 U.S.,AT 400. 

THE STATE ATTACKS RESPONDENTS' POSITION AS ONE FOSTERING "IGNORANCE"
FROM WHICH THE CHILD MUST BE PROTECTED BY THE STATE.  NO ONE CAN
QUESTION THE STATE'S DUTY TO PROTECT CHILDREN FROM IGNORANCE BUT THIS
ARGUMENT DOES NOT SQUARE WITH THE FACTS DISCLOSED IN THE RECORD. 
WHATEVER THEIR IDIOSYNCRASIES AS SEEN BY THE MAJORITY, THIS RECORD
STRONGLY SHOWS THAT THE AMISH COMMUNITY HAS BEEN A HIGHLY SUCCESSFUL
SOCIAL UNIT WITHIN OUR SOCIETY, EVEN IF APART FROM THE CONVENTIONAL
"MAINSTREAM."  ITS MEMBERS ARE PRODUCTIVE AND VERY LAW-ABIDING MEMBERS
OF SOCIETY; THEY REJECT PUBLIC WELFARE IN ANY OF ITS USUAL MODERN
FORMS.  THE CONGRESS ITSELF RECOGNIZED THEIR SELF-SUFFICIENCY BY
AUTHORIZING EXEMPTION OF SUCH GROUPS AS THE AMISH FROM THE OBLIGATION
TO PAY SOCIAL SECURITY TAXES.  /11/ 

IT IS NEITHER FAIR NOR CORRECT TO SUGGEST THAT THE AMISH ARE OPPOSED
TO EDUCATION BEYOND THE EIGHTH GRADE LEVEL.  WHAT THIS RECORD SHOWS IS
THAT THEY ARE OPPOSED TO CONVENTIONAL FORMAL EDUCATION OF THE TYPE
PROVIDED BY A CERTIFIED HIGH SCHOOL BECAUSE IT COMES AT THE CHILD'S
CRUCIAL ADOLESCENT PERIOD OF RELIGIOUS DEVELOPMENT.  DR. DONALD
ERICKSON, FOR EXAMPLE, TESTIFIED THAT THEIR SYSTEM OF LEARNING-BY-DOING
WAS AN "IDEAL SYSTEM" OF EDUCATION IN TERMS OF PREPARING AMISH CHILDREN
FOR LIFE AS ADULTS IN THE AMISH COMMUNITY, AND THAT "I WOULD BE
INCLINED TO SAY THEY DO A BETTER JOB IN THIS THAN MOST OF THE REST OF
US DO."  AS HE PUT IT, "THESE PEOPLE AREN'T PURPORTING TO BE LEARNED
PEOPLE, AND IT SEEMS TO ME THE SELF-SUFFICIENCY OF THE COMMUNITY IS THE
BEST EVIDENCE I CAN POINT TO-- WHATEVER IS BEING DONE SEEMS TO FUNCTION
WELL."  /12/ 

WE MUST NOT FORGET THAT IN THE MIDDLE AGES IMPORTANT VALUES OF THE
CIVILIZATION OF THE WESTERN WORLD WERE PRESERVED BY MEMBERS OF
RELIGIOUS ORDERS WHO ISOLATED THEMSELVES FROM ALL WORLDLY INFLUENCES
AGAINST GREAT OBSTACLES.  THERE CAN BE NO ASSUMPTION THAT TODAY'S
MAJORITY IS "RIGHT" AND THE AMISH AND OTHER LIKE THEM ARE "WRONG."  A
WAY OF LIFE THAT IS ODD OR EVEN ERRATIC BUT INTERFERES WITH NO RIGHTS
OR INTERESTS OF OTHERS IS NOT TO BE CONDEMNED BECAUSE IT IS DIFFERENT. 
THE STATE, HOWEVER, SUPPORTS ITS INTEREST IN PROVIDING AN ADDITIONAL
ONE OR TWO YEARS OF COMPULSORY HIGH SCHOOL EDUCATION TO AMISH CHILDREN
BECAUSE OF THE POSSIBILITY THAT SOME SUCH CHILDREN WILL CHOOSE TO LEAVE
THE AMISH COMMUNITY, AND THAT IF THIS OCCURS THEY WILL BE ILL-EQUIPPED
FOR LIFE.  THE STATE ARGUES THAT IF AMISH CHILDREN LEAVE THEIR CHURCH
THEY SHOULD NOT BE IN THE POSITION OF MAKING THEIR WAY IN THE WORLD
WITHOUT THE EDUCATION AVAILABLE IN THE ONE OR TWO ADDITIONAL YEARS THE
STATE REQUIRES.  HOWEVER, ON THIS RECORD, THAT ARGUMENT IS HIGHLY
SPECULATIVE.  THERE IS NO SPECIFIC EVIDENCE OF THE LOSS OF AMISH
ADHERENTS BY ATTRITION, NOR IS THERE ANY SHOWING THAT UPON LEAVING THE
AMISH COMMUNITY AMISH CHILDREN, WITH THEIR PRACTICAL AGRICULTURAL
TRAINING AND HABITS OF INDUSTRY AND SELF-RELIANCE, WOULD BECOME BURDENS
ON SOCIETY BECAUSE OF EDUCATIONAL SHORTCOMINGS.  INDEED, THIS ARGUMENT
OF THE STATE APPEARS TO REST PRIMARILY ON THE STATE'S MISTAKEN
ASSUMPTION, ALREADY NOTED, THAT THE AMISH DO NOT PROVIDE ANY EDUCATION
FOR THEIR CHILDREN BEYOND THE EIGHTH GRADE, BUT ALLOW THEM TO GROW IN
"IGNORANCE."  TO THE CONTRARY, NOT ONLY DO THE AMISH ACCEPT THE
NECESSITY FOR FORMAL SCHOOLING THROUGH THE EIGHTH GRADE LEVEL, BUT
CONTINUE TO PROVIDE WHAT HAS BEEN CHARACTERIZED BY THE UNDISPUTED
TESTIMONY OF EXPERT EDUCATORS AS AN "IDEAL" VOCATIONAL EDUCATION FOR
THEIR CHILDREN IN THE ADOLESCENT YEARS. 

THERE IS NOTHING IN THIS RECORD TO SUGGEST THAT THE AMISH QUALITIES
OF RELIABILITY, SELF-RELIANCE, AND DEDICATION TO WORK WOULD FAIL TO
FIND READY MARKETS IN TODAY'S SOCIETY.  ABSENT SOME CONTRARY EVIDENCE
SUPPORTING THE STATE'S POSITION, WE ARE UNWILLING TO ASSUME THAT
PERSONS POSSESSING SUCH VALUABLE VOCATIONAL SKILLS AND HABITS ARE
DOOMED TO BECOME BURDENS ON SOCIETY SHOULD THEY DETERMINE TO LEAVE THE
AMISH FAITH, NOR IS THERE ANY BASIS IN THE RECORD TO WARRANT A FINDING
THAT AN ADDITIONAL ONE OR TWO YEARS OF FORMAL SCHOOL EDUCATION BEYOND
THE EIGHTH GRADE WOULD SERVE TO ELIMINATE ANY SUCH PROBLEM THAT MIGHT
EXIST. 

INSOFAR AS THE STATE'S CLAIM RESTS ON THE VIEW THAT A BRIEF
ADDITIONAL PERIOD OF FORMAL EDUCATION IS IMPERATIVE TO ENABLE THE AMISH
TO PARTICIPATE EFFECTIVELY AND INTELLIGENTLY IN OUR DEMOCRATIC PROCESS,
IT MUST FALL.  THE AMISH ALTERNATIVE TO FORMAL SECONDARY SCHOOL
EDUCATION HAS ENABLED THEM TO FUNCTION EFFECTIVELY IN THEIR DAY-TO-DAY
LIFE UNDER SELF-IMPOSED LIMITATIONS ON RELATIONS WITH THE WORLD, AND TO
SURVIVE AND PROSPER IN CONTEMPORARY SOCIETY AS A SEPARATE, SHARPLY
IDENTIFIABLE AND HIGHLY SELF-SUFFICIENT COMMUNITY FOR MORE THAN 200
YEARS IN THIS COUNTRY.  IN ITSELF THIS IS STRONG EVIDENCE THAT THEY ARE
CAPABLE OF FULFILLING THE SOCIAL AND POLITICAL RESPONSIBILITIES OF
CITIZENSHIP WITHOUT COMPELLED ATTENDANCE BEYOND THE EIGHTH GRADE AT THE
PRICE OF JEOPARDIZING THEIR FREE EXERCISE OF RELIGIOUS BELIEF.  /13/
WHEN THOMAS JEFFERSON EMPHASIZED THE NEED FOR EDUCATION AS A BULWARK OF
A FREE PEOPLE AGAINST TYRANNY, THERE IS NOTHING TO INDICATE HE HAD IN
MIND COMPULSORY EDUCATION THROUGH ANY FIXED AGE BEYOND A BASIC
EDUCATION.  INDEED, THE AMISH COMMUNITIES SINGULARLY PARALLEL AND
REFLECT MANY OF THE VIRTUES OF JEFFERSON'S IDEAL OF THE "STURDY YEOMAN"
WHO WOULD FORM THE BASIS OF WHAT HE CONSIDERED AS THE IDEAL OF A
DEMOCRATIC SOCIETY.  /14/  EVEN THEIR IDIOSYNCRATIC SEPARATENESS
EXEMPLIFIES THE DIVERSITY WE PROFESS TO ADMIRE AND ENCOURAGE. 

THE REQUIREMENT FOR COMPULSORY EDUCATION BEYOND THE EIGHTH GRADE IS
A RELATIVELY RECENT DEVELOPMENT IN OUR HISTORY.  LESS THAN 60 YEARS
AGO, THE EDUCATIONAL REQUIREMENTS OF ALMOST ALL OF THE STATES WERE
SATISFIED BY COMPLETION OF THE ELEMENTARY GRADES, AT LEAST WHERE THE
CHILD WAS REGULARLY AND LAWFULLY EMPLOYED.  /15/  THE INDEPENDENCE AND
SUCCESSFUL SOCIAL FUNCTIONING OF THE AMISH COMMUNITY FOR A PERIOD
APPROACHING ALMOST THREE CENTURIES AND MORE THAN 200 YEARS IN THIS
COUNTRY ARE STRONG EVIDENCE THAT THERE IS AT BEST A SPECULATIVE GAIN,
IN TERMS OF MEETING THE DUTIES OF CITIZENSHIP, FROM AN ADDITIONAL ONE
OR TWO YEARS OF COMPULSORY FORMAL EDUCATION.  AGAINST THIS BACKGROUND
IT WOULD REQUIRE A MORE PARTICULARIZED SHOWING FROM THE STATE ON THIS
POINT TO JUSTIFY THE SEVERE INTERFERENCE WITH RELIGIOUS FREEDOM SUCH
ADDITIONAL COMPULSORY ATTENDANCE WOULD ENTAIL. 

WE SHOULD ALSO NOTE THAT COMPULSORY EDUCATION AND CHILD LABOR LAWS
FIND THEIR HISTORICAL ORIGIN IN COMMON HUMANITARIAN INSTINCTS, AND THAT
THE AGE LIMITS OF BOTH LAWS HAVE BEEN COORDINATED TO ACHIEVE THEIR
RELATED OBJECTIVES.  /16/  IN THE CONTEXT OF THIS CASE, SUCH
CONSIDERATIONS, IF ANYTHING, SUPPORT RATHER THAN DETRACT FROM
RESPONDENTS' POSITION.  THE ORIGINS OF THE REQUIREMENT FOR SCHOOL
ATTENDANCE TO AGE 16, AN AGE FALLING AFTER THE COMPLETION OF ELEMENTARY
SCHOOL BUT BEFORE COMPLETION OF HIGH SCHOOL, ARE NOT ENTIRELY CLEAR. 
BUT TO SOME EXTENT SUCH LAWS REFLECTED THE MOVEMENT TO PROHIBIT MOST
CHILD LABOR UNDER AGE 16 THAT CULMINATED IN THE PROVISIONS OF THE
FEDERAL FAIR LABOR STANDARDS ACT OF 1938.  /17/  IT IS TRUE, THEN, THAT
THE 16-YEAR CHILD LABOR AGE LIMIT MAY TO SOME DEGREE DERIVE FROM A
CONTEMPORARY IMPRESSION THAT CHILDREN SHOULD BE IN SCHOOL UNTIL THAT
AGE.  BUT AT THE SAME TIME, IT CANNOT BE DENIED THAT, CONVERSELY, THE
16-YEAR EDUCATION LIMIT REFLECTS, IN SUBSTANTIAL MEASURE, THE CONCERN
THAT CHILDREN UNDER THAT AGE NOT BE EMPLOYED UNDER CONDITIONS HAZARDOUS
TO THEIR HEALTH, OR IN WORK THAT SHOULD BE PERFORMED BY ADULTS. 

THE REQUIREMENT OF COMPULSORY SCHOOLING TO AGE 16 MUST THEREFORE BE
VIEWED AS AIMED NOT MERELY AT PROVIDING EDUCATIONAL OPPORTUNITIES FOR
CHILDREN, BUT AS AN ALTERNATIVE TO THE EQUALLY UNDESIRABLE CONSEQUENCE
OF UNHEALTHFUL CHILD LABOR DISPLACING ADULT WORKERS, OR, ON THE OTHER
HAND, FORCED IDLENESS.  /18/  THE TWO KINDS OF STATUTES-- COMPULSORY
SCHOOL ATTENDANCE AND CHILD LABOR LAWS-- TEND TO KEEP CHILDREN OF
CERTAIN AGES OFF THE LABOR MARKET AND IN SCHOOL; THIS REGIMEN IN TURN
PROVIDES OPPORTUNITY TO PREPARE FOR A LIVELIHOOD OF A HIGHER ORDER THAN
THAT WHICH CHILDREN COULD PURSUE WITHOUT EDUCATION AND PROTECTS THEIR
HEALTH IN ADOLESCENCE. 

IN THESE TERMS, WISCONSIN'S INTEREST IN COMPELLING THE SCHOOL
ATTENDANCE OF AMISH CHILDREN TO AGE 16 EMERGES AS SOMEWHAT LESS
SUBSTANTIAL THAN REQUIRING SUCH ATTENDANCE FOR CHILDREN GENERALLY. 
FOR, WHILE AGRICULTURAL EMPLOYMENT IS NOT TOTALLY OUTSIDE THE
LEGITIMATE CONCERNS OF THE CHILD LABOR LAWS, EMPLOYMENT OF CHILDREN
UNDER PARENTAL GUIDANCE AND ON THE FAMILY FARM FROM AGE 14 TO AGE 16 IS
AN ANCIENT TRADITION THAT LIES AT THE PERIPHERY OF THE OBJECTIVES OF
SUCH LAWS.  /19/  THERE IS NO INTIMATION THAT THE AMISH EMPLOYMENT OF
THEIR CHILDREN ON FAMILY FARMS IS IN ANY WAY DELETERIOUS TO THEIR
HEALTH OR THAT AMISH PARENTS EXPLOIT CHILDREN AT TENDER YEARS.  ANY
SUCH INFERENCE WOULD BE CONTRARY TO THE RECORD BEFORE US.  MOREOVER,
EMPLOYMENT OF AMISH CHILDREN ON THE FAMILY FARM DOES NOT PRESENT THE
UNDESIRABLE ECONOMIC ASPECTS OF ELIMINATING JOBS THAT MIGHT OTHERWISE
BE HELD BY ADULTS. 

        IV 

FINALLY, THE STATE, ON AUTHORITY OF PRINCE V. MASSACHUSETTS, ARGUES
THAT A DECISION EXEMPTING AMISH CHILDREN FROM THE STATE'S REQUIREMENT
FAILS TO RECOGNIZE THE SUBSTANTIVE RIGHT OF THE AMISH CHILD TO A
SECONDARY EDUCATION, AND FAILS TO GIVE DUE REGARD TO THE POWER OF THE
STATE AS PARENS PATRIAE TO EXTEND THE BENEFIT OF SECONDARY EDUCATION TO
CHILDREN REGARDLESS OF THE WISHES OF THEIR PARENTS.  TAKEN AT ITS
BROADEST SWEEP, THE COURT'S LANGUAGE IN PRINCE, MIGHT BE READ TO GIVE
SUPPORT TO THE STATE'S POSITION.  HOWEVER, THE COURT WAS NOT CONFRONTED
IN PRINCE WITH A SITUATION COMPARABLE TO THAT OF THE AMISH AS REVEALED
IN THIS RECORD; THIS IS SHOWN BY THE COURT'S SEVERE CHARACTERIZATION OF
THE EVILS THAT IT THOUGHT THE LEGISLATURE COULD LEGITIMATELY ASSOCIATE
WITH CHILD LABOR, EVEN WHEN PERFORMED IN THE COMPANY OF AN ADULT, 321
U.S.,AT 169-170.  THE COURT LATER TOOK GREAT CARE TO CONFINE PRINCE TO
A NARROW SCOPE IN HERBERT V. VERNER, WHEN IT STATED: 

"ON THE OTHER HAND, THE COURT HAS REJECTED CHALLENGES UNDER THE FREE
EXERCISE CLAUSE TO GOVERNMENTAL REGULATION OF CERTAIN OVERT ACTS
PROMPTED BY RELIGIOUS BELIEFS OR PRINCIPLES, FOR 'EVEN WHEN THE ACTION
IS IN ACCORD WITH ONE'S RELIGIOUS CONVICTIONS, (IT) IS NOT TOTALLY FREE
FROM LEGISLATIVE RESTRICTIONS.'  BRAUNFELD V. BROWN, 366 U.S. 599,
603.  THE CONDUCT OR ACTIONS SO REGULATED HAVE INVARIABLY POSED SOME
SUBSTANTIAL THREAT TO PUBLIC SAFETY, PEACE OR ORDER.  SEE, E.G.
REYNOLDS V. UNITED STATES, 98 U.S. 145; JACOBSON V. MASSACHUSETTS, 197
U.S. 11; PRINCE V. MASSACHUSETTS, 321 U.S. 158.  . . . "  374 U.S.,AT
402-403. 

THIS CASE, OF COURSE, IS NOT ONE IN WHICH ANY HARM TO THE PHYSICAL
OR MENTAL HEALTH OF THE CHILD OR TO THE PUBLIC SAFETY, PEACE, ORDER, OR
WELFARE HAS BEEN DEMONSTRATED OR MAY BE PROPERLY INFERRED.  /20/  THE
RECORD IS TO THE CONTRARY, AND ANY RELIANCE ON THAT THEORY WOULD FIND
NO SUPPORT IN THE EVIDENCE. 

CONTRARY TO THE SUGGESTION OF THE DISSENTING OPINION OF MR. JUSTICE
DOUGLAS, OUR HOLDING TODAY IN NO DEGREE DEPENDS ON THE ASSERTION OF THE
RELIGIOUS INTEREST OF THE CHILD AS CONTRASTED WITH THAT OF THE
PARENTS.  IT IS THE PARENTS WHO ARE SUBJECT TO PROSECUTION HERE FOR
FAILING TO CAUSE THEIR CHILDREN TO ATTEND SCHOOL, AND IT IS THEIR RIGHT
OF FREE EXERCISE, NOT THAT OF THEIR CHILDREN, THAT MUST DETERMINE
WISCONSIN'S POWER TO IMPOSE CRIMINAL PENALTIES ON THE PARENT.  THE
DISSENT ARGUES THAT A CHILD WHO EXPRESSES A DESIRE TO ATTEND PUBLIC
HIGH SCHOOL IN CONFLICT WITH THE WISHES OF HIS PARENTS SHOULD NOT BE
PREVENTED FROM DOING SO.  THERE IS NO REASON FOR THE COURT TO CONSIDER
THAT POINT SINCE IT IS NOT AN ISSUE IN THE CASE.  THE CHILDREN ARE NOT
PARTIES TO THIS LITIGATION.  THE STATE HAS AT NO POINT TRIED THIS CASE
ON THE THEORY THAT RESPONDENTS WERE PREVENTING THEIR EXPRESSED DESIRES,
AND INDEED THE RECORD IS TO THE CONTRARY.  /21/  THE STATE'S POSITION
FROM THE OUTSET HAS BEEN THAT IT IS EMPOWERED TO APPLY ITS COMPULSORY
ATTENDANCE LAW TO AMISH PARENTS IN THE SAME MANNER AS TO OTHER PARENTS-
THAT IS, WITHOUT REGARD TO THE WISHES OF THE CHILD.  THAT IS THE CLAIM
WE REJECT TODAY. 

OUR HOLDING IN NO WAY DETERMINES THE PROPER RESOLUTION OF POSSIBLE
COMPETING INTEREST OF PARENTS, CHILDREN, AND THE STATE IN AN
APPROPRIATE STATE COURT PROCEEDING IN WHICH THE POWER OF THE STATE IS
ASSERTED ON THE THEORY THAT AMISH PARENTS ARE PREVENTING THEIR MINOR
CHILDREN FROM ATTENDING HIGH SCHOOL DESPITE THEIR EXPRESSED DESIRES TO
THE CONTRARY.  RECOGNITION OF THE CLAIM OF THE STATE IN SUCH A
PROCEEDING WOULD, OF COURSE, CALL INTO QUESTION TRADITIONAL CONCEPTS OF
PARENTAL CONTROL OVER THE RELIGIOUS UPBRINGING AND EDUCATION OF THEIR
MINOR CHILDREN RECOGNIZED IN THIS COURT'S PAST DECISIONS.  IT IS CLEAR
THAT SUCH AN INTRUSION BY A STATE INTO FAMILY DECISIONS IN THE AREA OF
RELIGIOUS TRAINING WOULD GIVE RISE TO GRAVE QUESTIONS OF RELIGIOUS
FREEDOM COMPARABLE TO THOSE RAISED HERE AND THOSE PRESENTED IN PIERCE
V. SOCIETY OF SISTERS, 268 U.S. 510(1925).  ON THIS RECORD WE NEITHER
REACH NOR DECIDE THOSE ISSUES. 

THE STATE'S ARGUMENT PROCEEDS WITHOUT RELIANCE ON ANY ACTUAL
CONFLICT BETWEEN THE WISHES OF PARENTS AND CHILDREN.  IT APPEARS TO
REST ON THE POTENTIAL THAT EXEMPTION OF AMISH PARENTS FROM THE
REQUIREMENTS OF THE COMPULSORY-EDUCATION LAW MIGHT ALLOW SOME PARENTS
TO ACT CONTRARY TO THE BEST INTERESTS OF THEIR CHILDREN BY FORECLOSING
THEIR OPPORTUNITY TO MAKE AN INTELLIGENT CHOICE BETWEEN THE AMISH WAY
OF LIFE AND THAT OF THE OUTSIDE WORLD.  THE SAME ARGUMENT COULD, OF
COURSE, BE MADE WITH RESPECT TO ALL CHURCH SCHOOLS SHORT OF COLLEGE. 
THERE IS NOTHING IN THE RECORD OR IN THE ORDINARY COURSE OF HUMAN
EXPERIENCE TO SUGGEST THAT NON-AMISH PARENTS GENERALLY CONSULT WITH
CHILDREN OF AGES 14-16 IF THEY ARE PLACED IN A CHURCH SCHOOL OF THE
PARENTS' FAITH. 

INDEED IT SEEMS CLEAR THAT IF THE STATE IS EMPOWERED, AS PARENS
PATRIAE, TO "SAVE" A CHILD FROM HIMSELF OR HIS AMISH PARENTS BY
REQUIRING AN ADDITIONAL TWO YEARS OF COMPULSORY FORMAL HIGH SCHOOL
EDUCATION, THE STATE WILL IN LARGE MEASURE INFLUENCE, IF NOT DETERMINE,
THE RELIGIOUS FUTURE OF THE CHILD.  EVEN MORE MARKEDLY THAN IN PRINCE,
THEREFORE, THIS CASE INVOLVES THE FUNDAMENTAL INTEREST OF PARENTS, AS
CONTRASTED WITH THAT OF THE STATE, TO GUIDE THE RELIGIOUS FUTURE AND
EDUCATION OF THEIR CHILDREN.  THE HISTORY AND CULTURE OF WESTERN
CIVILIZATION REFLECT A STRONG TRADITION OF PARENTAL CONCERN FOR THE
NURTURE AND UPBRINGING OF THEIR CHILDREN.  THIS PRIMARY ROLE OF THE
PARENTS IN THE UPBRINGING OF THEIR CHILDREN IS NOW ESTABLISHED BEYOND
DEBATE AS AN ENDURING AMERICAN TRADITION.  IF NOT THE FIRST, PERHAPS
THE MOST SIGNIFICANT STATEMENTS OF THE COURT IN THIS AREA ARE FOUND IN
PIERCE V. SOCIETY OF SISTERS, IN WHICH THE COURT OBSERVED: 

      "UNDER THE DOCTRINE OF MEYER V. NEBRASKA, 262 U.S. 390, WE

  THINK IT ENTIRELY PLAIN THAT THE ACT OF 1922 UNREASONABLY

  INTERFERES WITH THE LIBERTY OF PARENTS AND GUARDIANS TO DIRECT

  THE UPBRINGING AND EDUCATION OF CHILDREN UNDER THEIR CONTROL.  AS

  OFTEN HERETOFORE POINTED OUT, RIGHTS GUARANTEED BY THE

  CONSTITUTION MAY NOT BE ABRIDGED BY LEGISLATION WHICH HAS NO

  REASONABLY RELATION TO SOME PURPOSE WITHIN THE COMPETENCY OF THE

  STATE.  THE FUNDAMENTAL THEORY OF LIBERTY UPON WHICH ALL

  GOVERNMENTS IN THIS UNION REPOSE EXCLUDES ANY GENERAL POWER OF

  THE STATE TO STANDARDIZE ITS CHILDREN BY FORCING THEM TO ACCEPT

  INSTRUCTION FROM PUBLIC TEACHERS ONLY.  THE CHILD IS NOT THE MERE

  CREATURE OF THE STATE; THOSE WHO NURTURE HIM AND DIRECT HIS

  DESTINY HAVE THE RIGHT, COUPLED WITH THE HIGH DUTY, TO RECOGNIZE

  AND PREPARE HIM FOR ADDITIONAL OBLIGATIONS."  268 U.S.,AT

  534-535. 

THE DUTY TO PREPARE THE CHILD FOR "ADDITIONAL OBLIGATIONS," REFERRED
TO BY THE COURT, MUST BE READ TO INCLUDE THE INCULCATION OF MORAL
STANDARDS, RELIGIOUS BELIEFS, AND ELEMENTS OF GOOD CITIZENSHIP. 
PIERCE, OF COURSE, RECOGNIZED THAT WHERE NOTHING MORE THAN THE GENERAL
INTEREST OF THE PARENT IN THE NURTURE AND EDUCATION OF HIS CHILDREN IS
INVOLVED, IT IS BEYOND DISPUTE THAT THE STATE ACT "REASONABLY" AND
CONSTITUTIONALLY IN REQUIRING EDUCATION TO AGE 16 IN SOME PUBLIC OR
PRIVATE SCHOOL MEETING THE STANDARDS PRESCRIBED BY THE STATE. 

HOWEVER READ, THE COURT'S HOLDING IN PIERCE STANDS AS A CHARTER OF
THE RIGHTS OF PARENTS TO DIRECT THE RELIGIOUS UPBRINGING OF THEIR
CHILDREN.  AND, WHEN THE INTERESTS OF PARENTHOOD ARE COMBINED WITH A
FREE EXERCISE CLAIM OF THE NATURE REVEALED BY THIS RECORD, MORE THAN
MERELY A "REASONABLE RELATION TO SOME PURPOSE WITHIN THE COMPETENCY OF
THE STATE" IS REQUIRED TO SUSTAIN THE VALIDITY OF THE STATE'S
REQUIREMENT UNDER THE FIRST AMENDMENT.  TO BE SURE, THE POWER OF THE
PARENT, EVEN WHEN LINKED TO A FREE EXERCISE CLAIM, MAY BE SUBJECT TO
LIMITATION UNDER PRINCE IF IT APPEARS THAT PARENTAL DECISIONS WILL
JEOPARDIZE THE HEALTH OR SAFETY OF THE CHILD, OR HAVE A POTENTIAL FOR
SIGNIFICANT SOCIAL BURDENS.  BUT IN THIS CASE, THE AMISH HAVE
INTRODUCED PERSUASIVE EVIDENCE UNDERMINING THE ARGUMENTS THE STATE HAS
ADVANCED TO SUPPORT ITS CLAIMS IN TERMS OF THE WELFARE OF THE CHILD AND
SOCIETY AS A WHOLE.  THE RECORD STRONGLY INDICATES THAT ACCOMMODATING
THE RELIGIOUS OBJECTIONS OF THE AMISH BY FORGOING ONE, OR AT MOST TWO,
ADDITIONAL YEARS OF COMPULSORY EDUCATION WILL NOT IMPAIR THE PHYSICAL
OR MENTAL HEALTH OF THE CHILD, OR RESULT IN AN INABILITY TO BE SELF
SUPPORTING OR TO DISCHARGE THE DUTIES AND RESPONSIBILITIES OF
CITIZENSHIP, OR IN ANY OTHER WAY MATERIALLY DETRACT FROM THE WELFARE OF
SOCIETY. 

IN THE FACE OF OUR CONSISTENT EMPHASIS ON THE CENTRAL VALUES
UNDERLYING THE RELIGION CLAUSES IN OUR CONSTITUTIONAL SCHEME OF
GOVERNMENT, WE CANNOT ACCEPT A PARENS PATRIAE CLAIM OF SUCH ALL
ENCOMPASSING SCOPE AND WITH SUCH SWEEPING POTENTIAL FOR BROAD AND
UNFORESEEABLE APPLICATION AS THAT URGED BY THE STATE. 

      V 

FOR THE REASONS STATED WE HOLD, WITH THE SUPREME COURT OF WISCONSIN,
THAT THE FIRST AND FOURTEENTH AMENDMENTS PREVENT THE STATE FROM
COMPELLING RESPONDENTS TO CAUSE THEIR CHILDREN TO ATTEND FORMAL HIGH
SCHOOL TO AGE 16.  /22/  OUR DISPOSITION OF THIS CASE, HOWEVER, IN NO
WAY ALTERS OUR RECOGNITION OF THE OBVIOUS FACT THAT COURTS ARE NOT
SCHOOL BOARDS OR LEGISLATURES, AND ARE ILL-EQUIPPED TO DETERMINE THE
"NECESSITY" OF DISCRETE ASPECTS OF A STATE'S PROGRAM OF COMPULSORY
EDUCATION.  THIS SHOULD SUGGEST THAT COURTS MUST MOVE WITH GREAT
CIRCUMSPECTION IN PERFORMING THE SENSITIVE AND DELICATE TASK OF
WEIGHING A STATE'S LEGITIMATE SOCIAL CONCERN WHEN FACED WITH RELIGIOUS
CLAIMS FOR EXEMPTION FROM GENERALLY APPLICABLE EDUCATIONAL
REQUIREMENTS.  IT CANNOT BE OVEREMPHASIZED THAT WE ARE NOT DEALING WITH
A WAY OF LIFE AND MODE OF EDUCATION BY A GROUP CLAIMING TO HAVE
RECENTLY DISCOVERED SOME "PROGRESSIVE" OR MORE ENLIGHTENED PROCESS FOR
REARING CHILDREN FOR MODERN LIFE. 

AIDED BY A HISTORY OF THREE CENTURIES AS AN IDENTIFIABLE RELIGIOUS
AMERICAN SOCIETY, THE AMISH IN THIS CASE HAVE CONVINCINGLY DEMONSTRATED
THE SINCERITY OF THEIR RELIGIOUS BELIEFS, THE INTERRELATIONSHIP OF
BELIEF WITH THEIR MODE OF LIFE, THE VITAL ROLE THAT BELIEF AND DAILY
CONDUCT PLAY IN THE CONTINUED SURVIVAL OF OLD ORDER AMISH COMMUNITIES
AND THEIR RELIGIOUS ORGANIZATION, AND THE HAZARDS PRESENTED BY THE
STATE'S ENFORCEMENT OF A STATUTE GENERALLY VALID AS TO OTHERS.  BEYOND
THIS, THEY HAVE CARRIED THE EVEN MORE DIFFICULT BURDEN OF DEMONSTRATING
THE ADEQUACY OF THEIR ALTERNATIVE MODE OF CONTINUING INFORMAL
VOCATIONAL EDUCATION IN TERMS OF PRECISELY THOSE OVERALL INTERESTS THAT
THE STATE ADVANCES IN SUPPORT OF ITS PROGRAM OF COMPULSORY HIGH SCHOOL
EDUCATION.  IN LIGHT OF THIS CONVINCING SHOWING, ONE THAT PROBABLY FEW
OTHER RELIGIOUS GROUPS OR SECTS COULD MAKE, AND WEIGHING THE MINIMAL
DIFFERENCE BETWEEN WHAT THE STATE WOULD REQUIRE AND WHAT THE AMISH
ALREADY ACCEPT, IT WAS INCUMBENT ON THE STATE TO SHOW WITH MORE
PARTICULARITY HOW ITS ADMITTEDLY STRONG INTEREST IN COMPULSORY
EDUCATION WOULD BE ADVERSELY AFFECTED BY GRANTING AN EXEMPTION TO THE
AMISH.  SHERBERT V. VERNER, SUPRA. 

NOTHING WE HOLD IS INTENDED TO UNDERMINE THE GENERAL APPLICABILITY
OF THE STATE'S COMPULSORY SCHOOL-ATTENDANCE STATUTES OR TO LIMIT THE
POWER OF THE STATE TO PROMULGATE REASONABLE STANDARDS THAT, WHILE NOT
IMPAIRING THE FREE EXERCISE OF RELIGION, PROVIDE FOR CONTINUING
AGRICULTURAL VOCATIONAL EDUCATION UNDER PARENTAL AND CHURCH GUIDANCE BY
THE OLD ORDER AMISH OR OTHERS SIMILARLY SITUATED.  THE STATES HAVE HAD
A LONG HISTORY OF AMICABLE AND EFFECTIVE RELATIONSHIPS WITH CHURCH
SPONSORED SCHOOLS, AND THERE IS NO BASIS FOR ASSUMING THAT, IN THIS
RELATED CONTEXT, REASONABLY STANDARDS CANNOT BE ESTABLISHED CONCERNING
THE CONTENT OF THE CONTINUING VOCATIONAL EDUCATION OF AMISH CHILDREN
UNDER PARENTAL GUIDANCE, PROVIDED ALWAYS THAT STATE REGULATIONS ARE NOT
INCONSISTENT WITH WHAT WE HAVE SAID IN THIS OPINION.  /23/

              AFFIRMED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  THE CHILDREN, FRIEDA YODER, AGED 15, BARBARA MILLER, AGED 15,
AND VERNON YUTZY, AGED 14, WERE ALL GRADUATES OF THE EIGHT GRADE OF
PUBLIC SCHOOL. 

/2/  WIS. STAT. SEC. 118.15(1969) PROVIDES IN PERTINENT PART: 

"118.15 COMPULSORY SCHOOL ATTENDANCE 

"(1)(A) UNLESS THE CHILD HAS A LEGAL EXCUSE OR HAS GRADUATED FROM
HIGH SCHOOL, ANY PERSON HAVING UNDER HIS CONTROL A CHILD WHO IS BETWEEN
THE AGES OF 7 AND 16 YEARS SHALL CAUSE SUCH CHILD TO ATTEND SCHOOL
REGULARLY DURING THE FULL PERIOD AND HOURS, RELIGIOUS HOLIDAYS
EXCEPTED, THAT THE PUBLIC OR PRIVATE SCHOOL IN WHICH SUCH CHILD SHOULD
BE ENROLLED IS IN SESSION UNTIL THE END OF THE SCHOOL TERM, QUARTER OR
SEMESTER OF THE SCHOOL YEAR IN WHICH HE BECOMES 16 YEARS OF AGE. 

        .          .          .          . 

"(3) THIS SECTION DOES NOT APPLY TO ANY CHILD WHO IS NOT IN PROPER
PHYSICAL OR MENTAL CONDITION TO ATTEND SCHOOL, TO ANY CHILD EXEMPTED
FOR GOOD CAUSE BY THE SCHOOL BOARD OF THE DISTRICT IN WHICH THE CHILD
RESIDES OR TO ANY CHILD WHO HAS COMPLETED THE FULL 4-YEAR HIGH SCHOOL
COURSE.  THE CERTIFICATE OF A REPUTABLE PHYSICIAN IN GENERAL PRACTICE
SHALL BE SUFFICIENT PROOF THAT A CHILD IS UNABLE TO ATTEND SCHOOL. 

"(4) INSTRUCTION DURING THE REQUIRED PERIOD ELSEWHERE THAN AT SCHOOL
MAY BE SUBSTITUTED FOR SCHOOL ATTENDANCE.  SUCH INSTRUCTION MUST BE
APPROVED BY THE STATE SUPERINTENDENT AS SUBSTANTIALLY EQUIVALENT TO
INSTRUCTION GIVEN TO CHILDREN OF LIKE AGES IN THE PUBLIC OR PRIVATE
SCHOOLS WHERE SUCH CHILDREN RESIDE. 

"(5) WHOEVER VIOLATES THIS SECTION . . . MAY BE FINED NOT LESS THAT
$5 NOR MORE THAN $50 OR IMPRISONED NOT MORE THAN 3 MONTHS OR BOTH." 

DISTRICT CONTAINING A "VOCATIONAL, TECHNICAL AND ADULT EDUCATION
SCHOOL," BUT THIS SECTION IS CONCEDEDLY INAPPLICABLE IN THIS CASE, FOR
THERE IS NO SUCH SCHOOL IN THE DISTRICT INVOLVED. 

/3/  PRIOR TO TRIAL, THE ATTORNEY FOR RESPONDENTS WROTE THE STATE
SUPERINTENDENT OF PUBLIC INSTRUCTION IN AN EFFORT TO EXPLORE THE
POSSIBILITIES FOR A COMPROMISE SETTLEMENT.  AMONG OTHER POSSIBILITIES,
HE SUGGESTED THAT PERHAPS THE STATE SUPERINTENDENT COULD
ADMINISTRATIVELY DETERMINE THAT THE AMISH COULD SATISFY THE COMPULSORY
ATTENDANCE LAW BY ESTABLISHING THEIR OWN VOCATIONAL TRAINING PLAN
SIMILAR TO ONE THAT HAS BEEN ESTABLISHED IN PENNSYLVANIA.  SUPP. APP.
6.  UNDER THE PENNSYLVANIA PLAN, AMISH CHILDREN OF HIGH SCHOOL AGE ARE
REQUIRED TO ATTEND AN AMISH VOCATIONAL SCHOOL FOR THREE HOURS A WEEK,
DURING WHICH TIME THEY ARE TAUGHT SUCH SUBJECTS AS ENGLISH,
MATHEMATICS, HEALTH, AND SOCIAL STUDIES BY AN AMISH TEACHER.  FOR THE
BALANCE OF THE WEEK, THE CHILDREN PERFORM FARM AND HOUSEHOLD DUTIES
UNDER PARENTAL SUPERVISION, AND KEEP A JOURNAL OF THEIR DAILY
ACTIVITIES.  THE MAJOR PORTION OF THE CURRICULUM IS HOME PROJECTS IN
AGRICULTURE AND HOMEMAKING.  SEE GENERALLY J. HOSTETLER & G.
HUNTINGTON, CHILDREN IN AMISH SOCIALIZATION AND COMMUNITY EDUCATION, C.
5(1971).  A SIMILAR PROGRAM HAS BEEN INSTITUTED IN INDIANA.  IBID.  SEE
ALSO IOWA CODE SEC. 299.24(1971); KAN. STAT. ANN. SEC. 72-1111 (SUPP.
1971). 

THE SUPERINTENDENT REJECTED THIS PROPOSAL ON THE GROUND THAT IT
WOULD NOT AFFORD AMISH CHILDREN "SUBSTANTIALLY EQUIVALENT EDUCATION" TO
THAT OFFERED IN THE SCHOOLS OF THE AREA.  SUPP. APP. 6. 

/4/  THE FIRST AMENDMENT PROVIDES:  "CONGRESS SHALL MAKE NO LAW
RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF.  . . . " 

/5/  SEE GENERALLY J. HOSTETLER, AMISH SOCIETY (1968); J. HOSTETLER
& G. HUNTINGTON, CHILDREN IN AMISH SOCIETY (1971); LITTELL, SECTARIAN
PROTESTANTISM AND THE PURSUIT OF WISDOM:  MUST TECHNOLOGICAL OBJECTIVES
PREVAIL?, IN PUBLIC CONTROLS FOR NONPUBLIC SCHOOLS 61 (D. ERICKSON ED.
1969). 

/6/  SEE WELSH V. UNITED STATES, 398 U.S. 333, 351-361(1970)
(HARLAN, J., CONCURRING IN RESULT); UNITED STATES V. BALLARD, 322 U.S.
78(1944). 

/7/  SEE GENERALLY R. BUTTS & L. CREMIN, A HISTORY OF EDUCATION IN
AMERICAN CULTURE (1953); L. CREMIN, THE TRANSFORMATION OF THE SCHOOL
(1961). 

/8/  HOSTETLER, SUPRA, N. 5, C. 9; HOSTETLER & HUNTINGTON, SUPRA, N.
5. 

/9/  SOME STATES HAVE DEVELOPED WORKING ARRANGEMENTS WITH THE AMISH
REGARDING HIGH SCHOOL ATTENDANCE.  SEE N. 3, SUPRA.  HOWEVER, THE
DANGER TO THE CONTINUED EXISTENCE OF AN ANCIENT RELIGIOUS FAITH CANNOT
BE IGNORED SIMPLY BECAUSE OF THE ASSUMPTION THAT ITS ADHERENTS WILL
CONTINUE TO BE ABLE, AT CONSIDERABLE SACRIFICE, TO RELOCATE IN SOME
MORE TOLERANT STATE OR COUNTRY OR WORK OUT ACCOMMODATIONS UNDER THREAT
OF CRIMINAL PROSECUTION.  FORCED MIGRATION OF RELIGIOUS MINORITIES WAS
AN EVIL THAT LAY AT THE HEART OF THE RELIGION CLAUSES.  SEE, E.G.,
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 9-10(1947); MADISON,
MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS, 2 WRITINGS OF
JAMES MADISON 183 (G. HUNT ED. 1901). 

/10/  THAT HAS BEEN THE APPARENT GROUND FOR DECISION IN SEVERAL
PREVIOUS STATE CASES REJECTING CLAIMS FOR EXEMPTION SIMILAR TO THAT
HERE.  SEE, E.G., STATE V. GARBER, 197 KAN. 567, 419 P.2D 896(1966),
CERT. DENIED, 389 U.S. 51(1967); STATE V. HERSHBERGER, 103 OHIO APP.
188, 144 N.E.2D 693(1955); COMMONWEALTH V. BEILER, 168 PA.SUPER.  462,
79 A.2D 134(1951). 

/11/  TITLE 26 U.S.C. 1402(H) AUTHORIZES THE SECRETARY OF HEALTH,
EDUCATION, AND WELFARE TO EXEMPT MEMBERS OF "A RECOGNIZED RELIGIOUS
OBLIGATION TO PAY SOCIAL SECURITY TAXES IF THEY ARE, BY REASON OF THE
TENETS OF THEIR SECT, OPPOSED TO RECEIPT OF SUCH BENEFITS AND AGREE TO
WAIVE THEM, PROVIDED THE SECRETARY FINDS THAT THE SECT MAKES REASONABLE
PROVISIONS FOR ITS DEPENDENT MEMBERS.  THE HISTORY OF THE EXEMPTION
SHOWS IT WAS ENACTED WITH THE SITUATION OF THE OLD ORDER AMISH
SPECIFICALLY IN VIEW.  H.R. REP. NO. 213, 89TH CONG., 1ST SESS., 101
102(1965). 

THE RECORD IN THIS CASE ESTABLISHES WITHOUT CONTRADICTION THAT THE
GREEN COUNTY AMISH HAD NEVER BEEN KNOWN TO COMMIT CRIMES, THAT NONE HAD
BEEN KNOWN TO RECEIVE PUBLIC ASSISTANCE, AND THAT NONE WERE
UNEMPLOYED. 

/12/  DR. ERICKSON HAD PREVIOUSLY WRITTEN:  "MANY PUBLIC EDUCATORS
WOULD BE ELATED IF THEIR PROGRAMS WERE AS SUCCESSFUL IN PREPARING
STUDENTS FOR PRODUCTIVE COMMUNITY LIFE AS THE AMISH SYSTEM SEEMS TO BE.
IN FACT, WHILE SOME PUBLIC SCHOOLMEN STRIVE TO OUTLAW THE AMISH
APPROACH, OTHERS ARE BEING FORCED TO EMULATE MANY OF ITS FEATURES." 
ERICKSON, SHOWDOWN AT AN AMISH SCHOOLHOUSE:  A DESCRIPTION AND ANALYSIS
OF THE IOWA CONTROVERSY, IN PUBLIC CONTROLS FOR NONPUBLIC SCHOOLS 15,
53 (D. ERICKSON ED. 1969).  AND SEE LITTELL, SUPRA, N. 5, AT 61. 

/13/  ALL OF THE CHILDREN INVOLVED IN THIS CASE ARE GRADUATES OF THE
EIGHTH GRADE.  IN THE COUNTY COURT, THE DEFENSE INTRODUCED A STUDY BY
DR. HOSTETLER INDICATING THAT AMISH CHILDREN IN THE EIGHTH GRADE
ACHIEVED COMPARABLY TO NON-AMISH CHILDREN IN THE BASIC SKILLS.  SUPP.
APP. 9-11.  SEE GENERALLY HOSTETLER & HUNTINGTON, SUPRA, N. 5, AT 88
96.     /14/  WHILE JEFFERSON RECOGNIZED THAT EDUCATION WAS ESSENTIAL
TO THE WELFARE AND LIBERTY OF THE PEOPLE, HE WAS RELUCTANT TO DIRECTLY
FORCE INSTRUCTION OF CHILDREN "IN OPPOSITION TO THE WILL OF THE
PARENT."  INSTEAD HE PROPOSED THAT STATE CITIZENSHIP BE CONDITIONED ON
THE ABILITY TO "READ READILY IN SOME TONGUE, NATIVE OR ACQUIRED." 
LETTER FROM THOMAS JEFFERSON 417, 423-424 (MEM. ED. 1904).  AND IT IS
CLEAR THAT, SO FAR AS THE MASS OF THE PEOPLE WERE CONCERNED, HE
ENVISAGED THAT A BASIC EDUCATION IN THE "THREE R'S" WOULD SUFFICIENTLY
MEET THE INTERESTS OF THE STATE.  HE SUGGESTED THAT AFTER COMPLETION OF
ELEMENTARY SCHOOL, "THOSE DESTINED FOR LABOR WILL ENGAGE IN THE
BUSINESS OF AGRICULTURE, OR ENTER INTO APPRENTICESHIPS TO SUCH
HANDICRAFT ART AS MAY BE THEIR CHOICE."  LETTER FROM THOMAS JEFFERSON
TO PETER CARR, SEPT. 7, 1814, IN THOMAS JEFFERSON AND EDUCATION IN A
REPUBLIC 93-106 (ARROWOOD ED. 1930).  SEE ALSO ID., AT 60-64, 70, 83,
136-137. 

/15/  SEE DEPT. OF INTERIOR, BUREAU OF EDUCATION, BULLETIN NO. 47,
DIGEST OF STATE LAWS RELATING TO PUBLIC EDUCATION 527-559(1916); JOINT
HEARINGS ON S. 2475 AND H.R. 7200 BEFORE THE SENATE COMMITTEE ON
EDUCATION AND LABOR AND THE HOUSE COMMITTEE ON LABOR, 75TH CONG., 1ST
SESS., PT. 2, P. 416. 

EVEN TODAY, AN EIGHTH GRADE EDUCATION FULLY SATISFIES THE
EDUCATIONAL REQUIREMENTS OF AT LEAST SIX STATES.  SEE ARIZ. REV. STAT.
ANN. SEC. 15-321(B)(4)(1956); ARK. STAT. ANN. SEC. 80-1504(1947); IOWA
CODE SEC. 299.2(1971); S.D. COMP. LAWS ANN. SEC. 13-27-1(1967); WYO.
STAT. ANN. SEC. 21.1-48 (SUPP. 1971).  (MISSISSIPPI HAS NO COMPULSORY
EDUCATION LAW.)  A NUMBER OF OTHER STATES HAVE FLEXIBLE PROVISIONS
PERMITTING CHILDREN AGED 14 OR HAVING COMPLETED THE EIGHTH GRADE TO BE
EXCUSED FROM SCHOOL IN ORDER TO ENGAGE IN LAWFUL EMPLOYMENT.  E.G.,
COLO. REV. STAT. ANN. SECS. 123-20-5, 80-6-1, TO 80-6-12 (1063); CONN.
GEN. STAT. REV. SECS. 10-184, 10-189 (1964); D.C. CODE ANN. SECS. 31
202, 36-201 TO 36-228(1967); IND. ANN. STAT. SECS. 28-505 TO 28-506, 28
519(1948); MASS. GEN. LAWS ANN., C. 76, SEC. 1 (SUPP. 1972) AND C. 149,
SEC. 86(1971); MO. REV. STAT. SECS. 167.031, 294.051(1969); NEV. REV.
STAT. SEC. 392.110(1968); N.M. STAT. ANN. SEC. 77-10-6(1968). 

AN EIGHTH GRADE EDUCATION SATISFIED WISCONSIN'S FORMAL EDUCATION
REQUIREMENTS UNTIL 1933.  SEE WIS. LAWS 1927, C. 425, SEC. 97; LAWS
1933, C. 143.  (PRIOR TO 1933, PROVISION WAS MADE FOR ATTENDANCE AT
CONTINUATION OR VOCATIONAL SCHOOLS BY WORKING CHILDREN PAST THE EIGHTH
GRADE, BUT ONLY IF ONE WAS MAINTAINED BY THE COMMUNITY IN QUESTION.) 
FOR A GENERAL DISCUSSION OF THE EARLY DEVELOPMENT OF WISCONSIN'S
COMPULSORY EDUCATION AND CHILD LABOR LAWS, SEE F. ENSIGN, COMPULSORY
SCHOOL ATTENDANCE AND CHILD LABOR 203-230(1921). 

/16/  SEE, E.G., JOINT HEARINGS, SUPRA, N. 15, PT. 1, AT 185-187
(STATEMENT OF FRANCES PERKINS, SECRETARY OF LABOR), PT. 2, AT 381-387
(STATEMENT OF KATHERINE LENROOT, CHIEF, CHILDREN'S BUREAU, DEPARTMENT
OF LABOR); NATIONAL CHILD LABOR COMMITTEE, 40TH ANNIVERSARY REPORT, THE
LONG ROAD (1944); 1 G.ABBOTT, THE CHILD AND THE STATE 259-269, 566
(GREENWOOD REPRINT 1968); L. CREMIN, THE TRANSFORMATION OF THE SCHOOL,
C. 3(1961); A. STEINHILBER & C. SOKOLOWSKI, STATE LAW ON COMPULSORY
ATTENDANCE 3-4(DEPT.  OF HEALTH, EDUCATION, AND WELFARE 1966). 

/17/  52 STAT. 1060, AS AMENDED, 29 U.S.C. 201-219. 

/18/  SEE MATERIALS CITED N. 16, SUPRA; CASAD, COMPULSORY EDUCATION
AND INDIVIDUAL RIGHTS, IN 5 RELIGION AND THE PUBLIC ORDER 51, 82 (D.
GIANNELLA ED. 1969). 

/19/  SEE, E.G., ABBOTT, SUPRA, N. 16, AT 266.  THE FEDERAL FAIR
LABOR STANDARDS ACT OF 1938 EXCLUDES FROM ITS DEFINITION OF
"(OPPRESSIVE CHILD LABOR" EMPLOYMENT OF A CHILD UNDER AGE 16 BY "A
PARENT . . . EMPLOYING HIS OWN CHILD . . . IN AN OCCUPATION OTHER THAN
MANUFACTURING OR MINING OR AN OCCUPATION FOUND BY THE SECRETARY OF
LABOR TO BE PARTICULARLY HAZARDOUS FOR THE EMPLOYMENT OF CHILDREN
BETWEEN THE AGES OF SIXTEEN AND EIGHTEEN YEARS OR DETRIMENTAL TO THEIR
HEALTH OR WELL-BEING."  29 U.S.C. 203(L). 

/20/  CF. E.G., JACOBSON V. MASSACHUSETTS, 197 U.S. 11(1905); WRIGHT
V. DEWITT SCHOOL DISTRICT, 238 ARK. 906, 385 S.W.2D 644(1965);
APPLICATION OF PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, INC., 118
U.S.APP.D.C. 80, 87-90, 331 F.2D 1000, 1007-1010 (IN-CHAMBERS OPINION),
CERT. DENIED, 337 U.S. 978(1964). 

/21/  THE ONLY RELEVANT TESTIMONY IN THE RECORD IS TO THE EFFECT
THAT THE WISHES OF THE ONE CHILD WHO TESTIFIED CORRESPONDED WITH THOSE
OF HER PARENTS.  TESTIMONY OF FRIEDA YODER, TR. 92-04, TO THE EFFECT
THAT HER PERSONAL RELIGIOUS BELIEFS GUIDED HER DECISION TO DISCONTINUE
SCHOOL ATTENDANCE AFTER THE EIGHTH GRADE.  THE OTHER CHILDREN WERE NOT
CALLED BY EITHER SIDE. 

/22/  WHAT WE HAVE SAID SHOULD MEET THE SUGGESTION THAT THE DECISION
OF THE WISCONSIN SUPREME COURT RECOGNIZING AN EXEMPTION FOR THE AMISH
FROM THE STATE'S SYSTEM OF COMPULSORY EDUCATION CONSTITUTED AN
IMPERMISSIBLE ESTABLISHMENT OF RELIGION.  IN WALZ V. TAX COMMISSION,
THE COURT SAY THE THREE MAIN CONCERNS AGAINST WHICH THE ESTABLISHMENT
CLAUSE SOUGHT TO PROTECT AS "SPONSORSHIP, FINANCIAL SUPPORT, AND ACTIVE
INVOLVEMENT OF THE SOVEREIGN IN RELIGIOUS ACTIVITY."  397 U.S. 664,
668(1970).  ACCOMMODATING THE RELIGIOUS BELIEFS OF THE AMISH CAN HARDLY
BE CHARACTERIZED AS SPONSORSHIP OR ACTIVE INVOLVEMENT.  THE PURPOSE AND
EFFECT OF SUCH AN EXEMPTION ARE NOT TO SUPPORT, FAVOR, ADVANCE, OR
ASSIST THE AMISH, BUT TO ALLOW THEIR CENTURIES-OLD RELIGIOUS SOCIETY,
HERE LONG BEFORE THE ADVENT OF ANY COMPULSORY EDUCATION, TO SURVIVE
FREE FROM THE HEAVY IMPEDIMENT COMPLIANCE WITH THE WISCONSIN COMPULSORY
EDUCATION LAW WOULD IMPOSE.  SUCH AN ACCOMMODATION "REFLECTS NOTHING
MORE THAN THE GOVERNMENTAL OBLIGATION OF NEUTRALITY IN THE FACE OF
RELIGIOUS DIFFERENCES, AND DOES NOT REPRESENT THAT INVOLVEMENT OF
RELIGIOUS WITH SECULAR INSTITUTIONS WHICH IT IS THE OBJECT OF THE
ESTABLISHMENT CLAUSE TO FORESTALL."  SHERBERT V. VERNER, 374 U.S. 398,
409(1963). 

/23/  SEVERAL STATES HAVE NOW ADOPTED PLANS TO ACCOMMODATE AMISH
RELIGIOUS BELIEFS THROUGH THE ESTABLISHMENT OF AN "AMISH VOCATIONAL
SCHOOL."  SEE N. 3, SUPRA.  THESE ARE NOT SCHOOLS IN THE TRADITIONAL
SENSE OF THE WORD.  AS PREVIOUSLY NOTED, RESPONDENTS ATTEMPTED TO REACH
A COMPROMISE WITH THE STATE OF WISCONSIN PATTERNED AFTER THE
PENNSYLVANIA PLAN, BUT THOSE EFFORTS WERE NOT PRODUCTIVE.  THERE IS NO
BASIS TO ASSUME THAT WISCONSIN WILL BE UNABLE TO REACH A SATISFACTORY
ACCOMMODATION WITH THE AMISH IN LIGHT OF WHAT WE NOW HOLD, SO AS TO
SERVE ITS INTERESTS WITHOUT IMPINGING ON RESPONDENTS' PROTECTED FREE
EXERCISE OF THEIR RELIGION. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING. 

THIS CASE INVOLVES THE CONSTITUTIONALITY OF IMPOSING CRIMINAL
PUNISHMENT UPON AMISH PARENTS FOR THEIR RELIGIOUSLY BASED REFUSAL TO
COMPEL THEIR CHILDREN TO ATTEND PUBLIC HIGH SCHOOLS.  WISCONSIN HAS
SOUGHT TO BRAND THESE PARENTS AS CRIMINALS FOR FOLLOWING THEIR
RELIGIOUS BELIEFS, AND THE COURT TODAY RIGHTLY HOLDS THAT WISCONSIN
CANNOT CONSTITUTIONALLY DO SO. 

THIS CASE IN NO WAY INVOLVES ANY QUESTIONS REGARDING THE RIGHT OF
THE CHILDREN OF AMISH PARENTS TO ATTEND PUBLIC HIGH SCHOOLS, OR ANY
OTHER INSTITUTIONS OF LEARNING, IF THEY WISH TO DO SO.  AS THE COURT
POINTS OUT, THERE IS NO SUGGESTION WHATEVER IN THE RECORD THAT THE
RELIGIOUS BELIEFS OF THE CHILDREN HERE CONCERNED DIFFER IN ANY WAY FROM
THOSE OF THEIR PARENTS.  ONLY ONE OF THE CHILDREN TESTIFIED.  THE LAST
TWO QUESTIONS AND ANSWERS ON HER CROSS-EXAMINATION ACCURATELY SUM UP
HER TESTIMONY: 

     "Q.  SO I TAKE IT THEN, FRIEDA, THE ONLY REASON YOU ARE NOT

  GOING TO SCHOOL, AND DID NOT GO TO SCHOOL SINCE LAST SEPTEMBER,

  IS BECAUSE OF YOUR RELIGION? 

     "A.  YES. 

     "Q.  THAT IS THE ONLY REASON? 

     "A.  YES." 

IT IS CLEAR TO ME, THEREFORE, THAT THIS RECORD SIMPLY DOES NOT
PRESENT THE INTERESTING AND IMPORTANT ISSUE DISCUSSED IN PART II OF THE
DISSENTING OPINION OF MR. JUSTICE DOUGLAS.  WITH THIS OBSERVATION, I
JOIN THE OPINION AND THE JUDGMENT OF THE COURT. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART JOIN, CONCURRING. 

CASES SUCH AS THIS ONE INEVITABLY CALL FOR A DELICATE BALANCING OF
IMPORTANT BUT CONFLICTING INTERESTS.  I JOIN THE OPINION AND JUDGMENT
OF THE COURT BECAUSE I CANNOT SAY THAT THE STATE'S INTEREST IN
REQUIRING TWO MORE YEARS OF COMPULSORY EDUCATION IN THE NINTH AND TENTH
GRADES OUTWEIGHS THE IMPORTANCE OF THE CONCEDEDLY SINCERE AMISH
RELIGIOUS PRACTICE TO THE SURVIVAL OF THAT SECT. 

THIS WOULD BE A VERY DIFFERENT CASE FOR ME IF RESPONDENTS' CLAIM
WERE THAT THEIR RELIGION FORBADE THEIR CHILDREN FROM ATTENDING ANY
SCHOOL AT ANY TIME AND FROM COMPLYING IN ANY WAY WITH THE EDUCATIONAL
STANDARDS SET BY THE STATE.  SINCE THE AMISH CHILDREN ARE PERMITTED TO
ACQUIRE THE BASIC TOOLS OF LITERACY TO SURVIVE IN MODERN SOCIETY BY
ATTENDING GRADES ONE THROUGH EIGHT AND SINCE THE DEVIATION FROM THE
STATE'S COMPULSORY-EDUCATION LAW IS RELATIVELY SLIGHT, I CONCLUDE THAT
RESPONDENTS' CLAIM MUST PREVAIL, LARGELY BECAUSE "RELIGIOUS FREEDOM--
THE FREEDOM TO BELIEVE AND TO PRACTICE STRANGE AND, IT MAY BE, FOREIGN
CREEDS-- HAS CLASSICALLY BEEN ONE OF THE HIGHEST VALUES OF OUR
SOCIETY."  BRAUNFELD V. BROWN, 366 U.S. 599, 612 (1961) (BRENNAN, J.,
CONCURRING AND DISSENTING). 

THE IMPORTANCE OF THE STATE INTEREST ASSERTED HERE CANNOT BE
DENIGRATED, HOWEVER: 

     "TODAY, EDUCATION IS PERHAPS THE MOST IMPORTANT FUNCTION OF

  STATE AND LOCAL GOVERNMENTS.  COMPULSORY SCHOOL ATTENDANCE LAWS

  AND THE GREAT EXPENDITURES FOR EDUCATION BOTH DEMONSTRATE OUR

  RECOGNITION OF THE IMPORTANCE OF EDUCATION TO OUR DEMOCRATIC

  SOCIETY.  IT IS REQUIRED IN THE PERFORMANCE OF OUR MOST BASIC

  PUBLIC RESPONSIBILITIES, EVEN SERVICE IN THE ARMED FORCES.  IT IS

  THE VERY FOUNDATION OF GOOD CITIZENSHIP.  TODAY IT IS A PRINCIPAL

INSTRUMENT IN AWAKENING THE CHILD TO CULTURAL VALUES, IN

 PREPARING HIM FOR LATER PROFESSIONAL TRAINING, AND IN HELPING HIM

  TO ADJUST NORMALLY TO HIS ENVIRONMENT."  BROWN V. BOARD OF

  EDUCATION, 347 U.S. 483, 493(1954). 

AS RECENTLY AS LAST TERM, THE COURT RE-EMPHASIZED THE LEGITIMACY OF THE
STATE'S CONCERN FOR ENFORCING MINIMAL EDUCATIONAL STANDARDS, LEMON V.
KURTZMAN, 403 U.S. 602, 613 (1971).  /1/  PIERCE V. SOCIETY OF SISTERS,
268 U.S. 510(1925), LENDS NO SUPPORT TO THE CONTENTION THAT PARENTS MAY
REPLACE STATE EDUCATIONAL REQUIREMENTS WITH THEIR OWN IDIOSYNCRATIC
VIEWS OF WHAT KNOWLEDGE A CHILD NEEDS TO BE A PRODUCTIVE AND HAPPY
MEMBER OF SOCIETY; IN PIERCE, BOTH THE PAROCHIAL AND MILITARY SCHOOLS
WERE IN COMPLIANCE WITH ALL THE EDUCATIONAL STANDARDS THAT THE STATE
HAD SET, AND THE COURT HELD SIMPLY THAT WHILE A STATE MAY POSIT SUCH
STANDARDS, IT MAY NOT PRE-EMPT THE EDUCATIONAL PROCESS BY REQUIRING
CHILDREN TO ATTEND PUBLIC SCHOOLS.  /2/  IN THE PRESENT CASE, THE STATE
IS NOT CONCERNED WITH THE MAINTENANCE OF AN EDUCATIONAL SYSTEM AS AN
END IN ITSELF, IT IS RATHER ATTEMPTING TO NURTURE AND DEVELOP THE HUMAN
POTENTIAL OF ITS CHILDREN, WHETHER AMISH OR NON-AMISH:  TO EXPAND THEIR
KNOWLEDGE, BROADEN THEIR SENSIBILITIES, KINDLE THEIR IMAGINATION,
FOSTER A SPIRIT OF FREE INQUIRY, AND INCREASE THEIR HUMAN UNDERSTANDING
AND TOLERANCE.  IT IS POSSIBLE THAT MOST AMISH CHILDREN WILL WISH TO
CONTINUE LIVING THE RURAL LIFE OF THEIR PARENTS, IN WHICH CASE THEIR
TRAINING AT HOME WILL ADEQUATELY EQUIP THEM FOR THEIR FUTURE ROLE. 
OTHERS, HOWEVER, MAY WISH TO BECOME NUCLEAR PHYSICISTS, BALLET DANCERS,
COMPUTER PROGRAMMERS, OR HISTORIANS, AND FOR THESE OCCUPATIONS, FORMAL
TRAINING WILL BE NECESSARY.  THERE IS EVIDENCE IN THE RECORD THAT MANY
CHILDREN DESERT THE AMISH FAITH WHEN THEY COME OF AGE.  /3/  A STATE
HAS A LEGITIMATE INTEREST NOT ONLY IN SEEKING TO DEVELOP THE LATENT
TALENTS OF ITS CHILDREN BUT ALSO IN SEEKING TO PREPARE THEM FOR THE
LIFE STYLE THAT THEY MAY LATER CHOOSE, OR AT LEAST TO PROVIDE THEM WITH
AN OPTION OTHER THAN THE LIFE THEY HAVE LED IN THE PAST.  IN THE
CIRCUMSTANCES OF THIS CASE, ALTHOUGH THE QUESTION IS CLOSE, I AM UNABLE
TO SAY THAT THE STATE HAS DEMONSTRATED THAT AMISH CHILDREN WHO LEAVE
SCHOOL IN THE EIGHTH GRADE WILL BE INTELLECTUALLY STULTIFIED OR UNABLE
TO ACQUIRE NEW ACADEMIC SKILLS LATER.  THE STATUTORY MINIMUM SCHOOL
ATTENDANCE AGE SET BY THE STATE IS, AFTER ALL, ONLY 16. 

DECISION IN CASES SUCH AS THIS AND THE ADMINISTRATION OF AN
EXEMPTION FOR OLD ORDER AMISH FROM THE STATE'S COMPULSORY SCHOOL
ATTENDANCE LAWS WILL INEVITABLY INVOLVE THE KIND OF CLOSE AND PERHAPS
REPEATED SCRUTINY OF RELIGIOUS PRACTICES, AS IS EXEMPLIFIED IN TODAY'S
OPINION, WHICH THE COURT HAS HERETOFORE BEEN ANXIOUS TO AVOID.  BUT
SUCH ENTANGLEMENT DOES NOT CREATE A FORBIDDEN ESTABLISHMENT OF RELIGION
WHERE IT IS ESSENTIAL TO IMPLEMENT FREE EXERCISE VALUES THREATENED BY
AN OTHERWISE NEUTRAL PROGRAM INSTITUTED TO FOSTER SOME PERMISSIBLE,
NONRELIGIOUS STATE OBJECTIVE.  I JOIN THE COURT BECAUSE THE SINCERITY
OF THE AMISH RELIGIOUS POLICY HERE IS UNCONTESTED, BECAUSE THE
POTENTIALLY ADVERSE IMPACT OF THE STATE REQUIREMENT IS GREAT, AND
BECAUSE THE STATE'S VALID INTEREST IN EDUCATION HAS ALREADY BEEN
LARGELY SATISFIED BY THE EIGHT YEARS THE CHILDREN HAVE ALREADY SPENT IN
SCHOOL. 

/1/  THE CHALLENGED AMISH RELIGIOUS PRACTICE HERE DOES NOT POSE A
SUBSTANTIAL THREAT TO PUBLIC SAFETY, PEACE, OR ORDER; IF IT DID,
ANALYSIS UNDER THE FREE EXERCISE CLAUSE WOULD BE SUBSTANTIALLY
DIFFERENT.  SEE JACOBSON V. MASSACHUSETTS, 197 U.S. 11(1905); PRINCE V.
MASSACHUSETTS, 321 U.S. 158(1944); CLEVELAND V. UNITED STATES, 329 U.S.
14(1946); APPLICATION OF PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE,
INC., 118 U.S.APP.D.C. 80, 331 F.2D 1000, CERT. DENIED, 337 U.S.
978(1964).     /2/  "NO QUESTION IS RAISED CONCERNING THE POWER OF THE
STATE REASONABLY TO REGULATE ALL SCHOOLS, TO INSPECT, SUPERVISE AND
EXAMINE THEM, THEIR TEACHERS AND PUPILS; TO REQUIRE THAT ALL CHILDREN
OF PROPER AGE ATTEND SOME SCHOOL, THAT TEACHERS SHALL BE OF GOOD MORAL
CHARACTER AND PATRIOTIC DISPOSITION, THAT CERTAIN STUDIES PLAINLY
ESSENTIAL TO GOOD CITIZENSHIP MUST BE TAUGHT, AND THAT NOTHING BE
TAUGHT WHICH IS MANIFESTLY INIMICAL TO THE PUBLIC WELFARE."  PIERCE V.
SOCIETY OF SISTERS, 268 U.S. 510, 534(1925). 

/3/  DR. HOSTETLER TESTIFIED THAT THOUGH THERE WAS A GRADUAL
INCREASE IN THE TOTAL NUMBER OF OLD ORDER AMISH IN THE UNITED STATES
OVER THE PAST 50 YEARS, "AT THE SAME TIME THE AMISH HAVE ALSO LOST
MEMBERS (OF) THEIR CHURCH" AND THAT THE TURNOVER RATE WAS SUCH THAT
"PROBABLY TWO-THIRDS (OF THE PRESENT AMISH) HAVE BEEN ASSIMILATED NON
AMISH PEOPLE."  APP. 110.  JUSTICE HEFFERNAN, DISSENTING BELOW, OPINED
THAT "(LARGE NUMBERS OF YOUNG PEOPLE VOLUNTARILY LEAVE THE AMISH
COMMUNITY EACH YEAR AND ARE THEREAFTER FORCED TO MAKE THEIR WAY IN THE
WORLD."  49 WIS.2D 430, 451, 182 N.W.2D 539, 549(1971). 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

        I 

I AGREE WITH THE COURT THAT THE RELIGIOUS SCRUPLES OF THE AMISH ARE
OPPOSED TO THE EDUCATION OF THEIR CHILDREN BEYOND THE GRADE SCHOOLS,
YET I DISAGREE WITH THE COURT'S CONCLUSION THAT THE MATTER IS WITHIN
THE DISPENSATION OF PARENTS ALONE.  THE COURT'S ANALYSIS ASSUMES THAT
THE ONLY INTERESTS AT STAKE IN THE CASE ARE THOSE OF THE AMISH PARENTS
ON THE ONE HAND, AND THOSE OF THE STATE ON THE OTHER.  THE DIFFICULTY
WITH THIS APPROACH IS THAT, DESPITE THE COURT'S CLAIM, THE PARENTS ARE
SEEKING TO VINDICATE NOT ONLY THEIR OWN FREE EXERCISE CLAIMS, BUT ALSO
THOSE OF THEIR HIGH-SCHOOL-AGE CHILDREN. 

IT IS ARGUED THAT THE RIGHT OF THE AMISH CHILDREN TO RELIGIOUS
FREEDOM IS NOT PRESENTED BY THE FACTS OF THE CASE, AS THE ISSUE BEFORE
THE COURT INVOLVES ONLY THE AMISH PARENTS' RELIGIOUS FREEDOM TO DEFY A
STATE CRIMINAL STATUTE IMPOSING UPON THEM AN AFFIRMATIVE DUTY TO CAUSE
THEIR CHILDREN TO ATTEND HIGH SCHOOL. 

FIRST, RESPONDENTS' MOTION TO DISMISS IN THE TRIAL COURT EXPRESSLY
ASSETS, NOT ONLY THE RELIGIOUS LIBERTY OF THE ADULTS, BUT ALSO THAT OF
THE CHILDREN, AS A DEFENSE TO THE PROSECUTIONS.  IT IS, OF COURSE,
BEYOND QUESTION THAT THE PARENTS HAVING STANDING AS DEFENDANTS IN A
CRIMINAL PROSECUTION TO ASSERT THE RELIGIOUS INTERESTS OF THEIR
CHILDREN AS A DEFENSE.  /1/  ALTHOUGH THE LOWER COURTS AND A MAJORITY
OF THIS COURT ASSUME AN IDENTITY OF INTEREST BETWEEN PARENT AND CHILD,
IT IS CLEAR THAT THEY HAVE TREATED THE RELIGIOUS INTEREST OF THE CHILD
AS A FACTOR IN THE ANALYSIS. 

SECOND, IT IS ESSENTIAL TO REACH THE QUESTION TO DECIDE THE CASE,
NOT ONLY BECAUSE THE QUESTION WAS SQUARELY RAISED IN THE MOTION TO
DISMISS, BUT ALSO BECAUSE NO ANALYSIS OF RELIGIOUS-LIBERTY CLAIMS CAN
TAKE PLACE IN A VACUUM.  IF THE PARENTS IN THIS CASE ARE ALLOWED A
RELIGIOUS EXEMPTION, THE INEVITABLE EFFECT IS TO IMPOSE THE PARENTS'
NOTIONS OF RELIGIOUS DUTY UPON THEIR CHILDREN.  WHERE THE CHILD IS
MATURE ENOUGH TO EXPRESS POTENTIALLY CONFLICTING DESIRES, IT WOULD BE
AN INVASION OF THE CHILD'S RIGHTS TO PERMIT SUCH AN IMPOSITION WITHOUT
CANVASSING HIS VIEWS.  AS IN PRINCE V. MASSACHUSETTS, 321 U.S. 158, IT
IS AN IMPOSITION RESULTING FROM THIS VERY LITIGATION.  AS THE CHILD HAS
NO OTHER EFFECTIVE FORUM, IT IS IN THIS LITIGATION THAT HIS RIGHTS
SHOULD BE CONSIDERED.  AND, IF AN AMISH CHILD DESIRES TO ATTEND HIGH
SCHOOL, AND IS MATURE ENOUGH TO HAVE THAT DESIRE RESPECTED, THE STATE
MAY WELL BE ABLE TO OVERRIDE THE PARENTS' RELIGIOUSLY MOTIVATED
OBJECTIONS. 

RELIGION IS AN INDIVIDUAL EXPERIENCE.  IT IS NOT NECESSARY, NOR EVEN
APPROPRIATE, FOR EVERY AMISH CHILD TO EXPRESS HIS VIEWS ON THE SUBJECT
IN A PROSECUTION OF A SINGLE ADULT.  CRUCIAL, HOWEVER, ARE THE VIEWS OF
THE CHILD WHOSE PARENT IS THE SUBJECT OF THE SUIT.  FRIEDA YODER HAS IN
FACT TESTIFIED THAT HER OWN RELIGIOUS VIEWS ARE OPPOSSED TO HIGH-SCHOOL
EDUCATION.  I THEREFORE JOIN THE JUDGMENT OF THE COURT AS TO RESPONDENT
JONAS YODER.  BUT FRIEDA YODER'S VIEWS MAY NOT BE THOSE OF VERNON YUTZY
OR BARBARA MILLER.  I MUST DISSENT, THEREFORE, AS TO RESPONDENTS ADIN
YUTZY AND WALLACE MILLER AS THEIR MOTION TO DISMISS ALSO RAISED THE
QUESTION OF THEIR CHILDREN'S RELIGIOUS LIBERTY. 

        II 

THIS ISSUE HAS NEVER BEEN SQUARELY PRESENTED BEFORE TODAY.  OUR
OPINIONS ARE FULL OF TALK ABOUT THE POWER OF THE PARENTS OVER THE
CHILD'S EDUCATION.  SEE PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510;
MEYER V. NEBRASKA, 262 U.S. 390.  AND WE HAVE IN THE PAST ANALYZED
SIMILAR CONFLICTS BETWEEN PARENT AND STATE WITH LITTLE REGARD FOR THE
VIEWS OF THE CHILD.  SEE PRINCE V. MASSACHUSETTS, SUPRA.  RECENT CASES,
HOWEVER, HAVE CLEARLY HELD THAT THE CHILDREN THEMSELVES HAVE
CONSTITUTIONALLY PROTECTIBLE INTERESTS. 

THESE CHILDREN ARE "PERSONS" WITHIN THE MEANING OF THE BILL OF
RIGHTS.  WE HAVE SO HELD OVER AND OVER AGAIN.  IN HALEY V. OHIO, 332
U.S. 596, WE EXTENDED THE PROTECTION OF THE FOURTEENTH AMENDMENT IN A
STATE TRIAL OF A 15-YEAR-BOY.  IN IN RE GAULT, 387 U.S. 1, 13, WE HELD
THAT "NEITHER THE FOURTEENTH AMENDMENT NOR THE BILL OF RIGHTS IS FOR
ADULTS ALONE.  IN IN RE WINSHIP, 397 U.S. 358, WE HELD THAT A 12-YEAR
OLD BOY, WHEN CHARGED WITH AN ACT WHICH WOULD BE A CRIME IF COMMITTED
BY AN ADULT, WAS ENTITLED TO PROCEDURAL SAFE-GUARDS CONTAINED IN THE
SIXTH AMENDMENT. 

IN TINKER V. DES MOINES SCHOOL DISTRICT, 393 U.S. 503, WE DEALT WITH
13-YEAR-OLD, 15-YEAR-OLD, AND 16-YEAR-OLD STUDENTS WHO WORE ARMBANDS TO
PUBLIC SCHOOLS AND WERE DISCIPLINED FOR DOING SO.  WE GAVE THEM RELIEF,
SAYING THAT THEIR FIRST AMENDMENT RIGHTS HAD BEEN ABRIDGED. 

"STUDENTS IN SCHOOL AS WELL AS OUT OF SCHOOL ARE 'PERSONS' UNDER OUR
CONSTITUTION.  THEY ARE POSSESSED OF FUNDAMENTAL RIGHTS WHICH THE STATE
MUST RESPECT, JUST AS THEY THEMSELVES MUST RESPECT THEIR OBLIGATIONS TO
THE STATE."  ID., AT 511. 

IN BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, WE HELD THAT
SCHOOLCHILDREN, WHOSE RELIGIOUS BELIEFS COLLIDED WITH A SCHOOL RULE
REQUIRING THEM TO SALUTE THE FLAG, COULD NOT BE REQUIRED TO DO SO.
WHILE THE SANCTION INCLUDED EXPULSION OF THE STUDENTS AND PROSECUTION
OF THE PARENTS, ID., AT 630, THE VICE OF THE REGIME WAS ITS
INTERFERENCE WITH THE CHILD'S FREE EXERCISE OF RELIGION.  WE SAID:
"HERE . . . WE ARE DEALING WITH A COMPULSION OF STUDENTS TO DECLARE A
BELIEF."  ID., AT 631.  IN EMPHASIZING THE IMPORTANT AND DELICATE TASK
OF BOARDS OF EDUCATION WE SAID: 

"THAT THEY ARE EDUCATING THE YOUNG FOR CITIZENSHIP IS REASON FOR
SCRUPULOUS PROTECTION OF CONSTITUTIONAL FREEDOMS OF THE INDIVIDUAL, IF
WE ARE NOT TO STRANGLE THE FREE MIND AT ITS SOURCE AND TEACH YOUTH TO
DISCOUNT IMPORTANT PRINCIPLES OF OUR GOVERNMENT AS MERE PLATITUDES." 
ID., AT 637. 

ON THIS IMPORTANT AND VITAL MATTER OF EDUCATION, I THINK THE
CHILDREN SHOULD BE ENTITLED TO BE HEARD.  WHILE THE PARENTS, ABSENT
DISSENT, NORMALLY SPEAK FOR THE ENTIRE FAMILY, THE EDUCATION OF THE
CHILD IS A MATTER ON WHICH THE CHILD WILL OFTEN HAVE DECIDED VIEWS.  HE
MAY WANT TO BE A PIANIST OR AN ASTRONAUT OR AN OCEANOGRAPHER.  TO DO SO
HE WILL HAVE TO BREAK FROM THE AMISH TRADITION.  /2/ 

IT IS THE FUTURE OF THE STUDENT, NOT THE FUTURE OF THE PARENTS, THAT
IS IMPERILED BY TODAY'S DECISION.  IF A PARENT KEEPS HIS CHILD OUT OF
SCHOOL BEYOND THE GRADE SCHOOL, THEN THE CHILD WILL BE FOREVER BARRED
FROM ENTRY INTO THE NEW AND AMAZING WORLD OF DIVERSITY THAT WE HAVE
TODAY.  THE CHILD MAY DECIDED THAT THAT IS THE PREFERRED COURSE, OR HE
MAY REBEL.  IT IS THE STUDENT'S JUDGMENT, NOT HIS PARENTS', THAT IS
ESSENTIAL IF WE ARE TO GIVE FULL MEANING TO WHAT WE HAVE SAID ABOUT THE
BILL OF RIGHTS AND OF THE RIGHT OF STUDENTS TO BE MASTERS OF THEIR OWN
DESTINY.  /3/  IF HE IS HARNESSED TO THE AMISH WAY OF LIFE BY THOSE IN
AUTHORITY OVER HIM AND IF HIS EDUCATION IS TRUNCATED, HIS ENTIRE LIFE
MAY BE STUNTED AND DEFORMED.  THE CHILD, THEREFORE, SHOULD BE GIVEN AN
OPPORTUNITY TO BE HEARD BEFORE THE STATE GIVES THE EXEMPTION WHICH WE
HONOR TODAY. 

THE VIEWS OF THE TWO CHILDREN IN QUESTION WERE NOT CANVASSED BY THE
WISCONSIN COURTS.  THE MATTER SHOULD BE EXPLICITLY RESERVED SO THAT NEW
HEARINGS CAN BE HELD ON REMAND OF THE CASE.  /4/

        III 

I THINK THE EMPHASIS OF THE COURT ON THE "LAW AND ORDER" RECORD OF
THIS AMISH GROUP OF PEOPLE IS QUITE IRRELEVANT.  A RELIGION IS A
RELIGION IRRESPECTIVE OF WHAT THE MISDEMEANOR OR FELONY RECORDS OF ITS
MEMBERS MIGHT BE.  I AM NOT AT ALL SURE HOW THE CATHOLICS,
EPISCOPALIANS, THE BAPTISTS, JEHOVAH'S WITNESSES, THE UNITARIANS, AND
MY OWN PRESBYTERIANS WOULD MAKE OUT IF SUBJECTED TO SUCH A TEST.  IT
IS, OF COURSE, TRUE THAT IF A GROUP OR SOCIETY WAS ORGANIZED TO
PERPETUATE CRIME AND IF THAT IS ITS MOTIVE, WE WOULD HAVE RATHER
STARTLING PROBLEMS AKIN TO THOSE THAT WERE RAISED WHEN SOME YEARS BACK
A PARTICULAR SECT WAS CHALLENGED HERE AS OPERATING ON A FRAUDULENT
BASIS.  UNITED STATES V. BALLARD, 322 U.S. 78.  BUT NO SUCH FACTORS ARE
PRESENT HERE, AND THE AMISH, WHETHER WITH A HIGH OR LOW CRIMINAL
RECORD, /5/  CERTAINLY QUALIFY BY ALL HISTORIC STANDARDS AS A RELIGION
WITHIN THE MEANING OF THE FIRST AMENDMENT. 

THE COURT RIGHTLY REJECTS THE NOTION THAT ACTIONS, EVEN THOUGH
RELIGIOUSLY GROUNDED, ARE ALWAYS OUTSIDE THE PROTECTION OF THE FREE
EXERCISE CLAUSE OF THE FIRST AMENDMENT.  IN SO RULING, THE COURT
DEPARTS FROM THE TEACHING OF REYNOLDS V. UNITED STATES, 98 U.S. 145,
164, WHERE IT WAS SAID CONCERNING THE REACH OF THE FREE EXERCISE CLAUSE
OF THE FIRST AMENDMENT, "CONGRESS WAS DEPRIVED OF ALL LEGISLATIVE POWER
OVER MERE OPINION, BUT WAS LEFT FREE TO REACH ACTIONS WHICH WERE IN
VIOLATIVE OF SOCIAL DUTIES OR SUBVERSIVE OF GOOD ORDER."  IN THAT CASE
IT WAS CONCEDED THAT POLYGAMY WAS A PART OF THE RELIGION OF THE
MORMONS.  YET THE COURT SIAD, "IT MATTERS NOT THAT HIS BELIEF (IN
POLYGAMY) WAS A PART OF HIS PROFESSED RELIGION:  IT WAS STILL BELIEF,
AND BELIEF ONLY."  ID., AT 167. 

ACTION, WHICH THE COURT DEEMED TO BE ANTISOCIAL, COULD BE PUNISHED
EVEN THOUGH IT WAS GROUNDED ON DEEPLY HELD AND SINCERE RELIGIOUS
CONVICTIONS.  WHAT WE DO TODAY, AT LEAST IN THIS RESPECT, OPENS THE WAY
TO GIVE ORGANIZED RELIGION A BROADER BASE THAN IT HAS EVER ENJOYED; AND
IT EVEN PROMISES THAT IN TIME REYNOLDS WILL BE OVERRULED. 

IN ANOTHER WAY, HOWEVER, THE COURT RETREATS WHEN IN REFERENCE TO
HENRY THOREAU IT SAYS HIS "CHOICE WAS PHILOSOPHICAL AND PERSONAL RATHER
THAN RELIGIOUS, AND SUCH BELIEF DOES NOT RISE TO THE DEMANDS OF THE
RELIGION CLAUSES."  THAT IS CONTRARY TO WHAT WE HELD IN UNITED STATES
V. SEEGER, 380 U.S. 163, WHERE WE WERE CONCERNED WITH THE MEANING OF
THE WORDS "RELIGIOUS TRAINING AND BELIEF" IN THE SELECTIVE SERVICE ACT,
WHICH WERE THE BASIS OF MANY CONSCIENTIOUS OBJECTOR CLAIMS.  WE SAID: 

"WITHIN THAT PHRASE WOULD COME ALL SINCERE RELIGIOUS BELIEFS WHICH
ARE BASED UPON A POWER OR BEING, OR UPON A FAITH, TO WHICH ALL ELSE IS
SUBORDINATE OR UPON WHICH ALL ELSE IS ULTIMATELY DEPENDENT.  THE TEST
MIGHT BE STATED IN THESE WORDS:  A SINCERE AND MEANINGFUL BELIEF WHICH
OCCUPIES IN THE LIFE OF ITS POSSESSOR A PLACE PARALLEL TO THAT FILLED
BY THE GOD OF THOSE ADMITTEDLY QUALIFYING FOR THE EXEMPTION COMES
WITHIN THE STATUTORY DEFINITION.  THIS CONSTRUCTION AVOIDS IMPUTING TO
CONGRESS AN INTENT TO CLASSIFY DIFFERENT RELIGIOUS BELIEFS, EXEMPTING
SOME AND EXCLUDING OTHERS, AND IS IN ACCORD WITH THE WELL-ESTABLISHED
CONGRESSIONAL POLICY OF EQUAL TREATMENT FOR THOSE WHOSE OPPOSITION TO
SERVICE IS GROUNDED IN THEIR RELIGIOUS TENETS."  ID., AT 176. 

WELSH V. UNITED STATES, 298 U.S. 333, WAS IN THE SAME VEIN, THE
COURT SAYING: 

"IN THIS CASE, WELSH'S CONSCIENTIOUS OBJECTION TO WAR WAS UNDENIABLY
BASED IN PART ON HIS PERCEPTION OF WORLD POLITICS.  IN A LETTER TO HIS
LOCAL BOARD, HE WROTE: 

     "'I CAN ONLY ACT ACCORDING TO WHAT I AM AND WHAT I SEE.  AND I

  SEE THAT THE MILITARY COMPLEX WASTES BOTH HUMAN AND MATERIAL

  RESOURCES, THAT IT FOSTERS DISREGARD FOR (WHAT I CONSIDER A

  PARAMOUNT CONCERN) HUMAN NEEDS AND ENDS; I SEE THAT THE MEANS WE

EMPLOY TO 

"DEFEND" OUR "WAY OF LIFE" PROFOUNDLY CHANGE THAT WAY OF LIFE.  I
SEE THAT IN OUR FAILURE TO RECOGNIZE THE POLITICAL, SOCIAL, AND
ECONOMIC REALITIES OF THE WORLD, WE, AS A NATION, FAIL OUR
RESPONSIBILITY AS A NATION.'"  ID., AT 342. 

THE ESSENCE OF WELSH'S PHILOSOPHY, ON THE BASIS OF WHICH WE HELD HE
WAS ENTITLED TO AN EXEMPTION, WAS IN THESE WORDS: 

  "'I BELIEVE THAT HUMAN LIFE IS VALUABLE IN AND OF ITSELF; IN

  ITS LIVING; THEREFORE I WILL NOT INJURE OR KILL ANOTHER HUMAN

  BEING.  THIS BELIEF (AND THE CORRESPONDING "DUTY" TO ABSTAIN FROM

  VIOLENCE TOWARD ANOTHER PERSON) IS NOT "SUPERIOR TO THOSE ARISING

  FROM ANY HUMAN RELATION."  ON THE CONTRARY:  IT IS ESSENTIAL TO

  EVERY HUMAN RELATION.  I CANNOT, THEREFORE, CONSCIENTIOUSLY

  COMPLY WITH THE GOVERNMENT'S INSISTENCE THAT I ASSUME DUTIES

  WHICH I FEEL ARE IMMORAL AND TOTALLY REPUGNANT.'"  ID., AT 343. 

I ADHERE TO THESE EXALTED VIEWS OF "RELIGION" AND SEE NO ACCEPTABLE
ALTERNATIVE TO THEM NOW THAT WE HAVE BECOME A NATION OF MANY RELIGIONS
AND SECTS, REPRESENTING ALL OF THE DIVERSITIES OF THE HUMAN RACE. 
UNITED STATES V. SEEGER, 380 U.S.,AT 192-193 (CONCURRING OPINION). 

/1/  THUS, IN PRINCE V. MASSACHUSETTS, 321 U.S. 158, A JEHOVAH'S
WITNESS WAS CONVICTED FOR HAVING VIOLATED A STATE CHILD LABOR LAW BY
ALLOWING HER NINE-YEAR-OLD NIECE AND WARD TO CIRCULATE RELIGIOUS
LITERATURE ON THE PUBLIC STREETS.  THERE, AS HERE, THE NARROW QUESTION
WAS THE RELIGIOUS LIBERTY OF THE ADULT.  THERE, AS HERE, THE COURT
ANALYZED THE PROBLEM FROM THE POINT OF VIEW OF THE STATE'S CONFLICTING
INTEREST IN THE WELFARE OF THE CHILD.  BUT, AS MR. JUSTICE BRENNAN,
SPEAKING FOR THE COURT, HAS SO RECENTLY POINTED OUT, "THE COURT (IN
PRINCE) IMPLICITLY HELD THAT THE CUSTODIAN HAD STANDING TO ASSERT
ALLEGED FREEDOM OF RELIGION . . . RIGHTS OF THE CHILD THAT WERE
THREATENED IN THE VERY LITIGATION BEFORE THE COURT AND THAT THE CHILD
HAD NO EFFECTIVE ALTERNATE MEANS TO VINDICATE THEIR RIGHTS.  THE
QUESTION, THEREFORE, IS SQUARELY BEFORE US.     /2/  A SIGNIFICANT
NUMBER OF AMISH CHILDREN DO LEAVE THE OLD ORDER.  PROFESSOR HOSTETLER
NOTES THAT "(THE LOSS OF MEMBERS IS VERY LIMITED IN SOME AMISH
DISTRICTS AND CONSIDERABLE IN OTHERS."  J. HOSTETLER, AMISH SOCIETY 226
(1968).  IN ONE PENNSYLVANIA CHURCH, HE OBSERVED A DEFECTION RATE OF
30%.  IBID.  RATES UP TO 50% HAVE BEEN REPORTED BY OTHERS.  CASAD,
COMPULSORY HIGH SCHOOL ATTENDANCE AND THE OLD ORDER AMISH:  A
COMMENTARY ON STATE V. GARBER, 16 KAN.L.REV.  423, 434 N. 51(1968). 

/3/  THE COURT BELOW BRUSHED ASIDE THE STUDENTS' INTERESTS WITH THE
OFFHAND COMMENT THAT "(WHEN A CHILD REACHES THE AGE OF JUDGMENT, HE CAN
CHOOSE FOR HIMSELF HIS RELIGION."  49 WIS.2D 430, 440, 182 N.W.2D 539,
543.  BUT THERE IS NOTHING IN THIS RECORD TO INDICATE THAT THE MORAL
AND INTELLECTUAL JUDGMENT DEMANDED OF THE STUDENT BY THE QUESTION IN
THIS CASE IS BEYOND HIS CAPACITY.  CHILDREN FAR YOUNGER THAN THE 14-
AND 15-YEAR-OLDS INVOLVED HERE ARE REGULARLY PERMITTED TO TESTIFY IN
CUSTODY AND OTHER PROCEEDINGS.  INDEED, THE FAILURE TO CALL THE
AFFECTED CHILD IN A CUSTODY HEARING IS OFTEN REVERSIBLE ERROR.  SEE,
E.G., CALLICOTT V. CALLICOTT, 364 S.W.2D 455(CIV.  APP.  TEX)
(REVERSIBLE ERROR FOR TRIAL JUDGE TO REFUSE TO HEAR TESTIMONY OF EIGHT
YEAR-OLD IN CUSTODY BATTLE).  MOREOVER, THERE IS SUBSTANTIAL AGREEMENT
AMONG CHILD PSYCHOLOGISTS AND SOCIOLOGISTS THAT THE MORAL AND
INTELLECTUAL MATURITY OF THE 14-YEAR-OLD APPROACHES THAT OF THE ADULT. 
SEE, E.G., J. PIAGET, THE MORAL JUDGEMENT OF THE CHILD (1948); D.
ELKIND, CHILDREN AND ADOLESCENTS 75-80 (1970); KOHLBERG, MORAL
EDUCATION IN THE SCHOOLS:  A DEVELOPMENTAL VIEW, IN R. MUUSS,
ADOLESCENT BEHAVIOR AND SOCIETY 193, 199-200(1971); W. KAY, MORAL
DEVELOPMENT 172-183 (1968); A. GESELL & F. ILG, YOUTH:  THE YEARS FROM
TEN TO SIXTEEN 175-182(1956).  THE MATURITY OF AMISH YOUTH, WHO
IDENTIFY WITH AND ASSUME ADULT ROLES FROM EARLY CHILDHOOD, SEE M.
GOODMAN, THE CULTURE OF CHILDHOOD 92-94(1970), IS CERTAINLY NOT LESS
THAN THAT OF CHILDREN IN THE GENERAL POPULATION. 

/4/  CANVASSING THE VIEWS OF ALL SCHOOL-AGE AMISH CHILDREN IN THE
STATE OF WISCONSIN WOULD NOT PRESENT INSURMOUNTABLE DIFFICULTIES.  A
1968 SURVEY INDICATED THAT THERE WERE AT THAT TIME ONLY 256 SUCH
CHILDREN IN THE ENTIRE STATE.  COMMENT, 1971 WIS.L.REV.  832, 852 N.
132. 

/5/  THE OBSERVATION OF JUSTICE HEFFERNAN, DISSENTING BELOW, THAT
THE PRINCIPAL OPINION IN HIS COURT PORTRAYED THE AMISH AS LEADING A
LIFE OF "IDYLLIC AGRARIANISM," IS EQUALLY APPLICABLE TO THE MAJORITY
OPINION IN THIS COURT.  SO, TOO, IS HIS OBSERVATION THAT SUCH A
PORTRAYAL RESTS ON A "MYTHOLOGICAL BASIS."  PROFESSOR HOSTETLER HAS
NOTED THAT "(DRINKING AMONG THE YOUTH IS COMMON IN ALL THE LARGE AMISH
SETTLEMENTS."  AMISH SOCIETY 283.  MOREOVER, "(IT WOULD APPEAR THAT
AMONG THE AMISH THE RATE OF SUICIDE IS JUST AS HIGH, IF NOT HIGHER,
THAN FOR THE NATION."  ID., AT 300.  HE ALSO NOTES AN UNFORTUNATE AMISH
"PREOCCUPATION WITH FILTHY STORIES," ID., AT 282, AS WELL AS
SIGNIFICANT "ROWDYISM AND STRESS."  ID., AT 281.  THESE ARE NOT TRAITS
PECULIAR TO THE AMISH, OF COURSE.  THE POINT IS THAT THE AMISH ARE NOT
PEOPLE SET APART AND DIFFERENT. 

JOHN W. CALHOUN, ASSISTANT ATTORNEY GENERAL OF WISCONSIN, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE ROBERT W. WARREN,
ATTORNEY GENERAL, AND WILLIAM H. WILKER, ASSISTANT ATTORNEY GENERAL. 

WILLIAM B. BALL ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS JOSEPH G. SKELLY. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY DONALD E.
SHOWALTER FOR THE MENNONITE CENTRAL COMMITTEE; BY BOARDMAN NOLAND AND
LEE BOOTHBY FOR THE GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS; BY
WILLIAM S. ELLIS FOR THE NATIONAL COUNCIL OF THE CHURCHES OF CHRIST; BY
NATHAN LEWIN FOR THE NATIONAL JEWISH COMMISSION ON LAW AND PUBLIC
AFFAIRS; AND BY LEO PFEFFER FOR THE SYNAGOGUE COUNCIL OF AMERICA ET AL.

..END :





DUKES V. WARDEN, 406 U.S. 250 


       DUKES V. WARDEN, CONNECTICUT STATE PRISON

 CERTIORARI TO THE SUPREME COURT OF CONNECTICUT

NO. 71-5172.  ARGUED MARCH 21, 1972-- DECIDED MAY 15, 1972 


PETITIONER'S CLAIM THAT HIS GUILTY PLEA WAS NOT VOLUNTARILY AND
INTELLIGENTLY MADE BECAUSE OF AN ALLEGED CONFLICT OF INTEREST ON THE
PART OF HIS COUNSEL HAS NO MERIT, AND THAT ALLEGED CONFLICT OF INTEREST
IS THEREFORE NOT A REASON FOR VACATING HIS PLEA.  PP. 251-257. 

161 CONN. 337, 228 A.2D 58, AFFIRMED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, BLACKMUN, POWELL, AND REHNQUIST, JJ.,
JOINED.  STEWART, J., FILED A CONCURRING OPINION, POST, P. 257. 
MARSHALL J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED,
POST, P. 259. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

ON MAY 16, 1967, PETITIONER, ON ADVICE OF COUNSEL, PLEADED GUILTY IN
THE SUPERIOR COURT OF HARTFORD COUNTY, CONNECTICUT, TO CHARGES OF
NARCOTICS VIOLATION AND LARCENY OF GOODS.  ON JUNE 16, 1967, BEFORE
BEING SENTENCED, HE INFORMED THE COURT THAT HE HAD RETAINED NEW COUNSEL
AND DESIRED TO WITHDRAW HIS PLEA AND STAND TRIAL.  THE COURT REFUSED TO
PERMIT HIM TO WITHDRAW HIS PLEA AND SENTENCED HIM TO A TERM OF FIVE TO
10 YEARS ON THE NARCOTICS CHARGE AND TO A TERM OF TWO YEARS ON THE
LARCENY CHARGE.  THE CONNECTICUT SUPREME COURT AFFIRMED THIS CONVICTION
ON HIS DIRECT APPEAL CHALLENGING THE VOLUNTARINESS OF HIS PLEA, STATE
V. DUKES, 157 CONN. 498, 255 A.2D 615(1969), AND THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT DENIED HIS APPLICATION
FOR FEDERAL HABEAS CORPUS RELIEF SOUGHT IN CIVIL ACTION NO. 13029.  HE
THEN BROUGHT THIS STATE HABEAS CORPUS ACTION IN THE SUPERIOR COURT FOR
HARTFORD COUNTY, AND ATTACKED THE VOLUNTARINESS OF HIS PLEA UNDER THE
FEDERAL CONSTITUTION ON A GROUND NOT RAISED EITHER ON HIS DIRECT APPEAL
OR IN HIS ACTION FOR FEDERAL HABEAS CORPUS RELIEF.  HE ALLEGED THAT A
CONFLICT OF INTEREST ARISING FROM HIS LAWYER'S REPRESENTATION OF TWO
GIRLS WITH WHOM PETITIONER HAD BEEN CHARGED IN AN UNRELATED FALSE
PRETENSES CASE WAS KNOWN TO THE JUDGE WHO SENTENCED HIM AND RENDERED
HIS PLEA INVOLUNTARY AND UNINTELLIGENT.  AFTER A FULL HEARING, THE
SUPERIOR COURT DENIED RELIEF.  THE SUPREME COURT OF CONNECTICUT
AFFIRMED, 161 CONN. 337, 228 A.2D 58(1971).  THE SUPREME COURT STATED
THAT, ALTHOUGH THE PETITION FOR STATE HABEAS RELIEF ALLEGED THAT THE
GUILTY PLEA WAS NOT VOLUNTARY AND INTELLIGENT ON SEVERAL GROUNDS, "(ON
APPEAL, HOWEVER, (PETITIONER) HAS ASSERTED IN ESSENCE ONLY THAT HE WAS
DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, WHICH RENDERED HIS PLEA
INVOLUNTARY.  . . . " 161 CONN.,AT 339, 288 A.2D, AT 60.  WE GRANTED
CERTIORARI.  404 U.S. 397(1971). 

THE TWO GIRLS WERE REPRESENTED BY MR. ZACCAGNINO OF THE FIRM OF
ZACCAGNINO, LINARDOS, & DELANEY IN THE FALSE PRETENSES CASE, AND
PETITIONER BY ANOTHER LAWYER, WHEN PETITIONER RETAINED THE FIRM TO
DEFEND HIM IN THE NARCOTICS AND LARCENY CASE.  THERE WERE ALSO CHARGES
PENDING AGAINST PETITIONER IN NEW HAVEN AND FAIRFIELD COUNTIES.  HE
ALSO FACED THE POSSIBILITY OF PROSECUTION AS A SECOND OFFENDER, HAVING
BEEN CONVICTED IN STATE COURT IN 1961 OF BREAKING AND ENTRY AND
ASSAULT. 

PETITIONER, ACCOMPANIED BY MR. ZACCAGNINO, APPEARED ON MAY 9, 1967, TO
PLEAD TO THE NARCOTICS AND LARCENY CHARGES.  THE LAWYER ADVISED HIM TO
PLEAD GUILTY IF A PLEA BARGAIN COULD BE NEGOTIATED WHEREBY THE STATE'S
ATTORNEY WOULD CONSOLIDATE ALL OUTSTANDING CHARGES IN AND OUT OF
HARTFORD COUNTY AND AGREE NOT TO PROSECUTE PETITIONER AS A SECOND
OFFENDER, BUT TO RECOMMEND A SENTENCE OF FIVE TO 10 YEARS ON THE
NARCOTICS CHARGE, TWO YEARS ON THE LARCENY CHARGE, AND CONCURRENT
SENTENCES ON ALL THE OTHER CHARGES.  UNDER CONN. GEN. STAT. REV. SEC.
54-17A (1958) THE NEW HAVEN COUNTY AND FAIRFIELD COUNTY CHARGES WOULD
BE TRANSFERRED TO HARTFORD COUNTY FOR DISPOSITION ONLY IF THE STATE'S
ATTORNEY OF THE COUNTIES CONSENTED AND PETITIONER PLEADED GUILTY TO THE
CHARGES.  WHEN PETITIONER REFUSED TO ACCEPT THIS ADVICE, MR. ZACCAGNINO
ASKED THE COURT TO BE RELIEVED AS PETITIONER'S COUNSEL.  THE COURT
DENIED THE REQUEST BUT ACCEPTED PETITIONER'S PLEA OF NOT GUILTY AND
CONTINUED THE TRIAL TO THE NEXT DAY SO THAT PETITIONER MIGHT TRY TO
RETAIN ANOTHER LAWYER.  AS PETITIONER WENT TO THE CORRIDOR OUTSIDE THE
COURTROOM, HOWEVER, HARTFORD POLICE OFFICERS ARRESTED HIM ON STILL
ANOTHER.  PETITIONER ATTEMPTED SUICIDE AT THE POLICE STATION TO WHICH
HE WAS TAKEN AND WAS HOSPITALIZED FOR SEVERAL DAYS.  ACCORDINGLY THE
TRIAL DATE WAS POSTPONED TO MAY 16. 

PETITIONER DID NOT ENGAGE NEW COUNSEL BUT APPEARED FOR TRIAL ON MAY
16 REPRESENTED BY MR. DELANEY, PARTNER OF MR. ZACCAGNINO WHO WAS
ENGAGED IN ANOTHER COURT.  PETITIONER NOW SHOWED INTEREST IN A PLEA
BARGAIN, AND MR. DELANEY AND THE STATE'S ATTORNEY ENGAGED IN
NEGOTIATIONS, WHICH WERE INTERRUPTED FROM TIME TO TIME WHILE MR.
DELANEY CONSULTED WITH PETITIONER.  A PLEA BARGAIN ON THE TERMS MR.
ZACCAGNINO HAD URGED PETITIONER ON MAY 9 TO ACCEPT WAS FINALLY STRUCK,
AND PETITIONER WITHDREW HIS NOT-GUILTY PLEA AND ENTERED THE GUILTY PLEA
HE NOW ATTACKS.  THE STATE'S ATTORNEY HAD MISGIVINGS BECAUSE OF
PETITIONER'S EXPRESSED DISSATISFACTION WITH MR. ZACCAGNINO THE WEEK
BEFORE, AND THE FOLLOWING OCCURRED: 

     "(STATE'S ATTORNEY):  . . . THE RECORD ALSO OUGHT TO APPEAR

  THAT MR. DELANEY IS HERE WITH HIM TODAY AND HE IS IN THE OFFICE

OF MR. ZACCAGNINO.  I THINK THE COURT MIGHT INQUIRE WITH RESPECT

  TO THE REPRESENTATION SINCE THERE HAD BEEN SOME INDICATION THAT

  COUNSEL HAD ASKED TO WITHDRAW THE OTHER DAY. 

     "THE COURT:  WELL NOW, MR. DUKES, I WANT TO BE SURE THAT

  EVERYTHING IS IN ORDER HERE.  . . . NOW I WANT, NOW MR. DELANEY

  IS HERE, ARE YOU FULLY SATISFIED WITH THE SERVICES HE IS

  RENDERING YOU, MR. DUKES? 

     "THE ACCUSED:  YES, SIR. 

     "THE COURT:  YOU ARE.  AND NOW YOU KNOW OF COURSE, MR. DUKES,

  THAT-- YOU KNOW OF COURSE THAT THE STATE OF CONNECTICUT HAS THE

  BURDEN OF PROVING YOU GUILTY ON THE CHARGE AND YOU ARE FREE TO GO

  TO TRIAL BUT YOU STILL WISH TO CHANGE YOUR PLEA, IS THAT

  CORRECT? 

     "THE ACCUSED:  YES, SIR. 

     "THE COURT:  AND DO YOU DO THIS OF YOUR OWN FREE WILL, MR.
DUKES? 

     "THE ACCUSED:  YES, SIR. 

     "THE COURT:  AND YOU KNOW THE PROBABLE CONSEQUENCES OF IT? 

     "THE ACCUSED:  YES, SIR. 

     "THE COURT:  VERY WELL, AND NO ONE HAS INDUCED YOU TO DO THIS,

  INFLUENCED YOU ONE WAY OR THE OTHER?  YOU ARE DOING THIS OF YOUR

  OWN FREE WILL? 

     "THE ACCUSED:  YES. 

     "THE COURT:  VERY WELL THEN.  WE WILL ACCEPT THE CHANGE OF
PLEA." 

THE COURT SET JUNE 2, 1967, FOR SENTENCING PETITIONER.  BUT THE
DOCUMENTS TRANSFERRING THE NEW HAVEN COUNTY AND FAIRFIELD COUNTY
CHARGES HAD NOT ARRIVED, AND THE PRESENTENCE REPORT HAD NOT BEEN
COMPLETED, ON THAT DAY, AND THE DATE WAS THEREFORE CONTINUED TO JUNE
16, 1967.  BY COINCIDENCE, HOWEVER, THE JUDGE'S CALENDAR FOR JUNE 2
ALSO LISTED THE CASE OF THE TWO GIRLS WHO, ON MR. ZACCAGNINO'S ADVICE,
HAD PLEADED GUILTY TO THE FALSE PRETENSES CHARGES AND WERE TO BE
SENTENCED.  THAT PROCEEDING DID NOT INVOLVE PETITIONER BECAUSE THE
DISPOSITION OF THE CHARGES AS TO HIM WAS PART OF THE PLEA BARGAIN.  IN
URGING LENIENCY FOR THE TWO GIRLS, MR. ZACCAGNINO MADE STATEMENTS
PUTTING THE BLAME ON PETITIONER FOR THE GIRLS' PLIGHT.  THESE
STATEMENTS ARE THE PRIMARY BASIS OF PETITIONER'S CLAIM OF DIVIDED
LOYALTY ON THE PART OF MR. ZACCAGNINO THAT HE ALLEGES RENDERED HIS
GUILTY PLEA OF MAY 16 INVOLUNTARY AND UNINTELLIGENT.  MR. ZACCAGNINO
SAID: 

"(BOTH OF THEM CAME UNDER THE INFLUENCE OF CHARLES DUKES.  NOW HOW
THEY COULD GET IN A POSITION TO COME UNDER THE INFLUENCE OF SOMEBODY
LIKE HIM, IF YOUR HONOR PLEASES, CREATES THE PROBLEM HERE THAT I THINK
IS THE CAUSE OF THE WHOLE SITUATION. 

     "BOTH THESE GIRLS LEFT THEIR HOMES, CAME UNDER THE INFLUENCE
OF

  DUKES AND GOT INVOLVED.  I THINK, YOUR HONOR, THOUGH, THAT THE

  ONE THING . . . THAT SHOULD STAND IN THEIR GOOD STEAD, AS A

  RESULT OF THEIR WILLINGNESS TO COOPERATE WITH THE STATE POLICE

THEY CAPITULATED DUKES INTO MAKING A PLEA.  I THINK, YOUR HONOR,

  SINCE I WAS ON BOTH SIDES OF THE CASE, HAVING BEEN ON THE OTHER

  SIDE ON THE OTHER CASE I CAN TELL YOUR HONOR THAT IT WAS THESE

  GIRLS THAT BECAUSE OF THEIR REFUSAL . . . TO COOPERATE WITH DUKES

  AND TO TESTIFY AGAINST HIM THAT CAPITULATED HIM INTO TAKING A

  PLEA ON WHICH HE WILL SHORTLY BE REMOVED FROM SOCIETY.  . . . " 

MR. ZACCAGNINO APPEARED ON JUNE 16 TO REPRESENT PETITIONER IN THE
PROCEEDINGS TO COMPLETE THE PLEA BARGAIN.  HE WAS SURPRISED TO BE TOLD
BY PETITIONER THAT PETITIONER HAD OBTAINED NEW COUNSEL AND INTENDED TO
WITHDRAW HIS GUILTY PLEA AND STAND TRIAL.  IT APPEARS FROM PETITIONER'S
CROSS-EXAMINATION AT THE STATE HABEAS HEARING THAT HE HAD LEARNED ON
JUNE 2 OF MR. ZACCAGNINO'S STATEMENTS ABOUT HIM WHEN THE GIRLS WERE
SENTENCED.  /1/  YET HE DID NOT TELL MR. ZACCAGNINO THAT THIS WAS WHY
HE WAS CHANGING LAWYERS, NOT DID HE TELL THE COURT THAT THIS WAS WHY HE
WANTED TO WITHDRAW HIS PLEA.  WHEN PRESSED BY THE COURT TO GIVE A
REASON, HE ANSWERED, "AT THE TIME I PLEADED, I JUST CAME OUT OF THE
HOSPITAL, I THINK IT WAS A DAY, AND I WAS UNCONSCIOUS FOR THREE DAYS,
AND I DIDN'T REALIZE AT THE TIME ACTUALLY WHAT I WAS PLEADING TO."  /2/
HIS EXPLANATION FOR WANTING ANOTHER LAWYER WAS THAT HE THOUGHT AN OUT
OF-TOWN LAWYER WOULD GIVE HIM BETTER SERVICE:  "I WOULD RATHER HAVE AN
ATTORNEY OUT OF TOWN FOR CERTAIN REASONS OF THE CASE."  THE COURT
REFUSED TO PERMIT PETITIONER TO WITHDRAW THE PLEA AND HEARD COUNSEL ON
THE QUESTION OF THE SENTENCE TO BE IMPOSED.  THE STATE'S ATTORNEY,
DESPITE THE COLLAPSE OF THE PLEA BARGAIN, RECOMMENDED, AND THE COURT
IMPOSED, A FIRST OFFENDER'S SENTENCE OF FIVE TO 10 YEARS ON THE
NARCOTICS COUNT AND TWO YEARS ON THE LARCENY COUNT; THAT IS THE PRECISE
SENTENCE THE STATE'S ATTORNEY HAD AGREED TO RECOMMEND AS PART OF THE
PLEA BARGAIN.  MR. ZACCAGNINO, HOWEVER, WAS CONCERNED THAT PETITIONER'S
UNWILLINGNESS TO GO THROUGH WITH THE PLEA BARGAIN LEFT PETITIONER
VULNERABLE TO THE PROSECUTION ON THE OUTSTANDING CHARGES IN THE VARIOUS
COUNTIES:  "(IT WAS A MATTER THAT YOUR HONOR WOULD NORMALLY . . . , IN
A SITUATION LIKE THIS, ENTER CONCURRENT SENTENCES, IF, IN FACT, IT WAS
SO RECOMMENDED BY THE STATE'S ATTORNEY; BUT SINCE (PETITIONER) DOESN'T
WANT TO PLEA TO THESE OTHER MATTERS, I WOULD LIKE TO MAKE THAT NOTE FOR
THE RECORD, BECAUSE I FEEL AT SOME LATER DATE HE MAY HAVE TO COME BACK
TO THIS COURT AND SEE YOUR HONOR OR SEE ANOTHER JUDGE ON THESE OTHER
MATTERS NOW PENDING BEFORE IT."  /3/ 

ON THIS STATE OF FACTS, THE CONNECTICUT SUPREME COURT CONCLUDED THAT
PETITIONER HAD NOT SUSTAINED HIS CLAIM THAT A CONFLICT OF INTEREST ON
THE PART OF MR. ZACCAGNINO RENDERED HIS PLEA INVOLUNTARY AND
UNINTELLIGENT.  THE COURT SAID, 161 CONN.,AT 344-345, 228 A.2D, AT 62: 

"THERE IS NOTHING IN THE RECORD BEFORE US WHICH WOULD INDICATE

  THAT THE ALLEGED CONFLICT RESULTED IN INEFFECTIVE ASSISTANCE OF

  COUNSEL AND DID IN FACT RENDER THE PLEA IN QUESTION INVOLUNTARY

  AND UNINTELLIGENT.  (PETITIONER) DOES NOT CLAIM, AND IT IS

  NOWHERE INDICATED IN THE FINDING, NOR COULD IT BE INFERRED FROM

  THE FINDING, THAT EITHER ATTORNEY ZACCAGNINO OR ATTORNEY DELANEY

  INDUCED (PETITIONER) TO PLEAD GUILTY IN FURTHERANCE OF A PLAN TO

  OBTAIN MORE FAVORABLE CONSIDERATION FROM THE COURT FOR OTHER

  CLIENTS.  . . . NEITHER DOES THE FINDING IN ANY WAY DISCLOSE, NOR

  IS IT CLAIMED, THAT (PETITIONER) RECEIVED MISLEADING ADVICE FROM

  ATTORNEY ZACCAGNINO OR ATTORNEY DELANEY WHICH LED HIM TO PLEAD

  GUILTY.  . . . MOREOVER, THE TRIAL COURT SPECIFICALLY FOUND THAT

  WHEN (PETITIONER) ENGAGED ZACCAGNINO AS HIS COUNSEL, HE KNEW THAT

  ZACCAGNINO WAS REPRESENTING TWO DEFENDANTS IN THE UNRELATED CASE

  IN WHICH HE WAS A CODEFENDANT, THAT HE NEVER COMPLAINED TO THE

  COURT THAT HE WAS NOT SATISFIED WITH ATTORNEY ZACCAGNINO BECAUSE

 OF THIS DUAL REPRESENTATION, THAT HE WAS NOT REPRESENTED AT THE

  ENTRY OF HIS PLEA BY ATTORNEY ZACCAGNINO, THAT HE WAS REPRESENTED

  BY ATTORNEY DELANEY AT THE ENTRY OF HIS PLEA, THAT HE HAD A

  LENGTHY CONVERSATION ATTORNEY DELANEY PRIOR TO ENTERING HIS PLEA

  WHICH HE RECALLED COMPLETELY, AND THAT ON SPECIFIC INQUIRY BY THE

  COURT BEFORE HE PLEADED GUILTY, HE TOLD THE COURT THAT HE WAS

  SATISFIED WITH THE REPRESENTATION BY ATTORNEY DELANEY.  THE COURT

  DID NOT ERR IN CONCLUDING THAT (PETITIONER'S) PLEA WAS NOT

RENDERED INVOLUNTARY AND UNINTELLIGENT BY THE ALLEGED CONFLICT OF

  INTEREST." 

WE FULLY AGREE WITH THIS REASONING AND CONCLUSION OF THE CONNECTICUT
SUPREME COURT.  SINCE THERE IS THUS NO MERIT IN PETITIONER'S SOLE
CONTENTION IN THIS PROCEEDING-- THAT MR. ZACCAGNINO'S ALLEGED CONFLICT
OF INTEREST AFFECTED HIS PLEA-- THAT CONFLICT OF INTEREST IS NOT "A
REASON FOR VACATING HIS PLEA."  SANTOBELLO V. NEW YORK, 404 U.S. 257,
267(1971) (MARSHALL, J., CONCURRING AND DISSENTING). 

AFFIRMED. 

/1/  "Q.  . . . ON JUNE 2ND, WEREN'T YOU IN COURT WITH MR.
ZACCAGNINO WHEN YOUR CASE HAD TO BE POSTPONED . . . ?

        .          .          .          . 

"A. I'M TRYING TO THINK OF THE DAY THAT THE GIRLS GOT SENTENCED,
BECAUSE I WAS NOT IN COURT THE DAY THEY GOT SENTENCED, BECAUSE I KNOW
THAT I WASN'T IN COURT THAT SPECIFIC DAY, BECAUSE THAT'S WHEN I WAS
TOLD WHAT WAS SAID ABOUT ME, AND SO FORTH AND SO ON, IN COURT, SO I'M
QUITE SURE I WASN'T IN COURT THAT DAY."  APP. TO PETITIONER'S BRIEF 162
163. 

/2/  THE STATE HABEAS COURT TOOK EVIDENCE ON THE QUESTION WHETHER
HIS PLEA WAS INVOLUNTARY AS THE PRODUCE OF THE AFTER-EFFECTS OF HIS
SUICIDE ATTEMPT AND FOUND AGAINST PETITIONER.  PETITIONER HAS NOT
SOUGHT REVIEW ON THIS QUESTION.  THE ONLY ISSUE BEFORE US IS HIS CLAIM
THAT THE ALLEGED CONFLICT OF INTEREST RENDERED THE PLEA INVOLUNTARY AND
UNINTELLIGENT.     /3/  AS EVENTS PROVED, ALL OTHER CHARGES PENDING IN
THE VARIOUS COUNTIES WERE DISMISSED, ALTHOUGH AFTER THE DECISION OF THE
CONNECTICUT SUPREME COURT AFFIRMING PETITIONER'S CONVICTION ON DIRECT
APPEAL.  PETITIONER THUS RECIEVED THE BENEFITS OF THE PLEA BARGAIN
WITHOUT PAYING THE COST OF PLEADING GUILTY TO THE OTHER OFFENSES. 

MR. JUSTICE STEWART, CONCURRING. 

IN SANTOBELLO V. NEW YORK, 404 U.S. 257, 267, I JOINED MR. JUSTICE
MARSHALLS SEPARATE OPINION BECAUSE I AGREE THAT "WHERE THE DEFENDANT
PRESENTS A REASON FOR VACATING HIS PLEA AND THE GOVERNMENT HAS NOT
RELIED ON THE PLEA TO ITS DISADVANTAGE, THE PLEA MAY BE VACATED AND THE
RIGHT TO TRIAL REGAINED, AT LEAST WHERE THE MOTION TO VACATE IS MADE
PRIOR TO SENTENCE AND JUDGMENT."  ID., AT 267-268. 

IF A DEFENDANT MOVES TO WITHDRAW A GUILTY PLEA BEFORE JUDGMENT AND
IF HE STATES A REASON FOR DOING SO, I THINK THAT HE NEED NOT SHOULDER A
FURTHER BURDEN OF PROVING THE "MERIT" OF HIS REASON AT THAT TIME. 
BEFORE JUDGMENT, THE COURTS SHOULD SHOW SOLICITUDE FOR A DEFENDANT WHO
WISHES TO UNDO A WAIVER OF ALL THE CONSTITUTIONAL RIGHTS THAT SURROUND
THE RIGHT TO TRIAL-- PERHAPS THE MOST DEVASTATING WAIVER POSSIBLE UNDER
OUR CONSTITUTION.  ANY REQUIREMENT THAT A DEFENDANT PROVE THE "MERIT"
OF HIS REASON FOR UNDOING THIS WAIVER WOULD CONFUSE THE OBVIOUS
DIFFERENCE BETWEEN THE WITHDRAWAL OF A GUILTY PLEA BEFORE THE
GOVERNMENT HAS RELIED ON THE PLEA TO ITS DISADVANTAGE, AND A LATER
CHALLENGE TO SUCH A PLEA, ON APPEAL OR COLLATERALLY, WHEN THE JUDGMENT
IS FINAL AND THE GOVERNMENT CLEARLY HAS RELIED ON THE PLEA. 

BUT I DO NOT BELIEVE THAT THESE PROBLEMS ARE PRESENTED IN THIS
CASE.  CERTIORARI WAS GRANTED TO CONSIDER THE PETITIONER'S CONTENTION
THAT HIS PLEA WAS MADE INVOLUNTARILY AND UNINTELLIGENTLY BECAUSE OF HIS
LAWYER'S ALLEGED CONFLICT OF INTEREST.  THIS CONFLICT-OF-INTEREST CLAIM
WAS NOT RAISED UNTIL A HABEAS CORPUS PROCEEDING, YEARS AFTER JUDGMENT
HAD BEEN PRONOUNCED.  THE PETITIONER DOES NOT NOW CHALLENGE THE REFUSAL
OF THE TRIAL COURT TO PERMIT HIM TO WITHDRAW HIS GUILTY PLEA BEFORE
JUDGMENT.  RATHER, HE CHALLENGES A LATER REFUSAL BY THE TRIAL COURT TO
VACATE HIS PLEA ON A MOTION MADE WELL AFTER JUDGMENT AND SENTENCE,
PRESENTING A CLAIM NOT PREVIOUSLY RAISED. 

THUS, I AGREE WITH THE COURT THAT THE PETITIONER'S CLAIM SHOULD BE
EVALUATED UNDER THE STANDARDS GOVERNING AN ATTACK ON A GUILTY PLEA MADE
AFTER JUDGMENT, NOT UNDER THE FAR DIFFERENT STANDARDS GOVERNING A
MOTION TO WITHDRAW A PLEA MADE BEFORE JUDGMENT HAS BEEN PRONOUNCED.  I
ALSO AGREE WITH THE COURT THAT, EVALUATED UNDER THE FORMER STANDARDS,
THE PETITIONER'S CLAIM OF INVOLUNTARINESS ATTRIBUTABLE TO HIS COUNSEL'S
CONFLICT OF INTEREST LACKS MERIT. 

IT IS ON THIS UNDERSTANDING THAT I JOIN THE OPINION AND JUDGMENT OF
THE COURT. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

I DISSENT.  BEFORE SENTENCING, PETITIONER STATED THAT HE WAS
INNOCENT, AND SOUGHT TO VACATE HIS GUILTY PLEA SO THAT HE COULD PROCEED
TO TRIAL WITH NEW COUNSEL IN WHOM HE HAD CONFIDENCE.  HE CLAIMS, WITH
AMPLE SUPPORT IN THE RECORD, THAT HE WAS ADVISED TO PLEAD GUILTY-- AND
INDEED PRESSURED TO DO SO-- BY LAWYERS WHO DID NOT DEVOTEDLY REPRESENT
HIS INTERESTS.  I AGREE WITH PETITIONER THAT HE SHOULD HAVE BEEN
PERMITTED TO WITHDRAW HIS GUILTY PLEA. 

   I 

PETITIONER, CHARLES DUKES, WAS ARRESTED ON MARCH 14, 1967, AND
CHARGED BY HARTFORD, CONNECTICUT, AUTHORITIES WITH A VIOLATION OF THE
UNIFORM STATE NARCOTIC DRUG ACT AND WITH RECEIVING STOLEN GOODS.  FROM
THE BEGINNING, THERE WAS A SHARP CONFLICT BETWEEN PETITIONER AND HIS
LAWYERS OVER WHETHER HE SHOULD PLEAD GUILTY.  TWO PARTNERS FROM THE LAW
FIRM THAT PETITIONER RETAINED, EACH OF WHOM HANDLED THE CASE ON
DIFFERENT OCCASIONS, TRIED TO CONVINCE PETITIONER TO PLEAD GUILTY TO
BOTH CHARGES.  THEY ARGUED THAT BECAUSE THERE WERE SEVERAL OTHER
OUTSTANDING CHARGES AGAINST HIM, PETITIONER'S BEST HOPE WAS TO SECURE
AN AGREEMENT TO CONSOLIDATE ALL THE CHARGES FOR DISPOSITION TOGETHER,
SO THAT HE COULD RECEIVE REASONABLE CONCURRENT SENTENCES.  BUT
PETITIONER MAINTAINED THAT HE WAS INNOCENT AND WOULD NOT AGREE TO PLEAD
GUILTY.  APP. 39, 112, 119-120. 

ALTHOUGH PETITIONER HAD NOT YET PLEADED TO EITHER OF THE CHARGES,
THE NARCOTICS CASE WAS CALLED FOR TRIAL ON MAY 9, 1967.  THE CONFLICT
BETWEEN LAWYER AND CLIENT SURFACED DRAMATICALLY WHEN PETITIONER'S
ATTORNEY IMMEDIATELY SOUGHT TO WITHDRAW FROM THE CASE "BECAUSE THERE
HAPPENS TO BE A SLIGHT CONFLICT BETWEEN MY CLIENT AND MYSELF, AND IT'S
NOT FINANCIAL, YOUR HONOR, IT IS ONE BASICALLY THAT GOES TO THE HEART
OF MY REPRESENTING HIM.  . . . "  NOTING HIS VIEW THAT AN ADVOCATE
"MUST BELIEVE IN THE CAUSE" OF HIS CLIENT, THE LAWYER WENT ON TO
REITERATE THAT THE DISAGREEMENT MIGHT "PREJUDICE THE DEFENDANT."  HE
REPORTED THAT PETITIONER "EITHER WANTS TO REPRESENT HIMSELF OR GET
COUNSEL OUTSIDE OF THE COUNTY THAT HE CAN HAVE MORE CONFIDENCE IN FOR
SOME REASON OR OTHER."  APP. 9, 10, 17.  THE MAJORITY CONCEDES THAT
THIS ANNOUNCED "CONFLICT" WAS OVER THE LAWYER'S INSISTENCE ON PLEADING
THE CLIENT GUILTY.  THEN PETITIONER HIMSELF ADDRESSED THE COURT TO
EXPLAIN THAT "WITH LOCAL COUNSEL I AM AFRAID, WELL, I KNOW THERE IS
GOING TO BE RESENTMENT.  I HAVE REASONS TO BELIEVE THAT THROUGH
CONVERSATIONS, AND I'D LIKE THE OPPORTUNITY TO HIRE AN ATTORNEY FROM
ANOTHER STATE THAT DON'T ( ) HAVE NO KNOWLEDGE OF THE CASE.  . . .
OTHERWISE . . . I INTEND TO TRY MY OWN CASE."  APP. 18.  PETITIONER'S
LAWYER SPOKE AGAIN CONCLUDING WITH THE JUDGMENT THAT HE, FOR ONE, COULD
NOT "DO THIS MAN JUSTICE IN THIS PARTICULAR ISSUE."  APP. 19-20.  BUT
THE COURT DENIED COUNSEL'S MOTION TO WITHDRAW "AT THIS TIME." 
PETITIONER THEN PLEADED NOT GUILTY, AND TRIAL WAS SCHEDULED FOR THE
FOLLOWING MORNING. 

PROCEEDINGS DID NOT ACTUALLY RESUME UNTIL A WEEK LATER, ON MAY 16. 
/1/  AFTER CONVERSATIONS IN THE COURTHOUSE THAT MORNING, APP. 131-132,
DUKES AGREED TO FOLLOW THE ADVICE OF HIS LAWYERS, WHO ADMITTEDLY HAD
BEEN APPLYING "PRESSURE" ON HIM, APP. 112, 140:  HE PLEADED GUILTY TO
BOTH THE NARCOTICS CHARGE AND THE LARCENY-RECEIVING CHARGE.  PRIOR TO
ENTRY OF THE PLEAS, THE JUDGE ASKED PETITIONER WHETHER HE WAS "FULLY
SATISFIED WITH THE SERVICES (YOUR LAWYER) IS RENDERING YOU.  . . . "
APP. 24, 41.  PETITIONER SAID THAT HE WAS.  BUT THIS SATISFACTION, SUCH
AS IT WAS, WAS SHORT LIVED. 

ON JUNE 16, 1967, PETITIONER APPEARED FOR SENTENCING.  HIS LAWYER
IMMEDIATELY INFORMED THE COURT THAT PETITIONER WISHED TO WITHDRAW HIS
PLEA AND HAD SECURED OTHER COUNSEL, FROM NEW HAVEN.  NOTING THE
LATENESS OF THESE DEVELOPMENTS, PETITIONER'S LAWYER CONCEDED THAT "I
HAD A SUSPICION . . . THAT THIS (MIGHT) TAKE PLACE BECAUSE OF THE
PROBLEM WHEN HE ENTERED THE PLEA.  I WAS MAYBE A LITTLE FORCEFUL."  AND
ALTHOUGH HE DISPUTED PETITIONER'S CLAIM THAT HIS PRESENT LAWYERS DID
NOT "PROPERLY REPRESENT HIM," COUNSEL ONCE AGAIN INFORMED THE COURT
THAT PETITIONER "DOESN'T HAVE ANY CONFIDENCE IN ME."  APP. 28, 31. 
PETITIONER HIMSELF TOLD THE COURT ABOUT HIS DIFFICULTY IN GETTING A
LAWYER WHO WOULD, HE THOUGHT, DO HIM JUSTICE.  HE ALSO EXPLAINED THAT
WHEN HE PLEADED GUILTY HE WAS STILL RECUPERATING FROM HIS RECENT
SUICIDE ATTEMPT, SEE N. 1, SUPRA, AND "DIDN'T REALIZE AT THE TIME
ACTUALLY WHAT I WAS PLEADING TO."  APP. 32.  SEE N. 8, INFRA.  THUS,
CONTRARY TO THE MAJORITY'S DESCRIPTION, PETITIONER, THROUGH HIS LAWYER
AND IN HIS OWN VOICE, GAVE SEVERAL SPECIFIC REASONS FOR WANTING TO
WITHDRAW HIS PLEA. 

FOLLOWING THE PROSECUTOR'S STATEMENT OPPOSING PETITIONER'S REQUEST,
AND WITHOUT ANY FURTHER INQUIRY, THE JUDGE REFUSED TO LET PETITIONER
WITHDRAW THE GUILTY PLEA.  WHEN THE JUDGE ASKED DUKES WHAT HE WISHED TO
SAY BEFORE BEING SENTENCED, DUKES REPLIED:  "I AM RATHER FLABBERGASTED
REALLY, BECAUSE I DIDN'T EXPECT THIS THIS MORNING.  IT JUST PUZZLES ME.
I AM NOT GUILTY OF THE CHARGES.  I AN NOT GUILTY."  APP. 33.  /2/
PETITIONER WAS SENTENCED TO FIVE TO 10 YEARS ON THE NARCOTICS COUNT AND
TWO YEARS ON THE RECEIVING-STOLEN-PROPERTY COUNT, AS THE PROSECUTOR HAD
RECOMMENDED.  THE ALLEGED REASON FOR THE PLEA-- TO GAIN CONSOLIDATION
OF ALL OUTSTANDING CHARGES AGAINST PETITIONER, AND THEREBY SECURE
CONCURRENT SENTENCES ON THE PENDING CHARGES-- WAS NEVER FULFILLED.  ON
THE DAY OF SENTENCING, PETITIONER REFUSED TO PLEAD GUILTY TO ANY
CHARGES, AND CONSOLIDATION WAS IMPOSSIBLE.  APP. 30-33, 157. 

AS JUST NOTED, THE SENTENCING JUDGE DID NOT INQUIRE INTO THE FACTS
SURROUNDING EITHER PETITIONER'S LEGAL REPRESENTATION OR HIS PLEA.  BUT
THESE FACTS WERE DEVELOPED AT A STATE HABEAS CORPUS HEARING, /3/  AND
PETITIONER'S LACK OF CONFIDENCE IN HIS LAWYER FINDS STRIKING SUPPORT IN
THE HEARING RECORD. 

THAT RECORD DETAILS THE SHARP CONFLICT BETWEEN LAWYER AND CLIENT
OVER THE DECISION TO PLEAD GUILTY.  BUT, MORE SIGNIFICANTLY, IT REVEALS
THAT THE LAWYER WHO ADVISED PETITIONER TO PLEAD GUILTY HAD A GROSS
CONFLICT OF INTEREST.  ANCILLARY TO THE INSTANT PROCEEDINGS,
PETITIONER'S LAWYER WAS REPRESENTING TWO YOUNG WOMEN CHARGED WITH
CONSPIRACY TO OBTAIN MONEY BY FALSE PRETENSES.  PETITIONER WAS A
CODEFENDANT IN THIS SECOND CASE, AND WAS REPRESENTED BY ANOTHER
ATTORNEY.  THIS SECOND PROSECUTION WAS UNRELATED TO THE MATTER NOW
BEFORE OUR COURT.  THE TWO YOUNG WOMEN PLEADED GUILTY TO THE FALSE
PRETENSES CHARGES ON APRIL 18, 1967, AND ON JUNE 2, 1967, APPEARED FOR
SENTENCING.  THE SENTENCING JUDGE WAS THE SAME JUDGE WHO WAS TO
SENTENCE PETITIONER TWO WEEKS LATER. 

IN HIS REMARKS TO THE JUDGE ON BEHALF OF THE TWO WOMEN, THE LAWYER
TOLD THE COURT THAT THESE WOMEN HAD COME "UNDER THE INFLUENCE OF
CHARLES DUKES," WHO HAD LED THEM ASTRAY.  HE POINTED OUT THAT THEIR
COOPERATION WITH THE STATE POLICE HAD "LED TO THE DOWNFALL OF DUKES"
AND "CAPITULATED (DUKES) INTO TAKING A PLEA (OF GUILTY) ON WHICH HE
WILL SHORTLY BE REMOVED FROM SOCIETY."  /4/  HE PLACED ON DUKES THE
BLAME FOR THE OFFENSES COMMITTED BY THE WOMEN, SAYING THAT HE WAS "THE
MOST CULPABLE SINCE HE HAD ALL THE INSTRUMENTS WITH WHICH TO DUPE THE
GIRLS."  APP. 43-44, 68-71.  /5/  THE TWO WOMEN WERE THEN SENTENCED TO
SHORT PRISON TERMS. 

IN SHORT, TO SECURE LIGHTER SENTENCES FOR ONE SET OF CLIENTS, THE
LAWYER DENIGRATED ANOTHER OF HIS CLIENTS WHO WAS TO APPEAR BEFORE THE
SAME JUDGE FOR SENTENCING IN TWO WEEKS.  EVEN ABSENT ANY SHOWING THAT
THE LAWYER'S "PRESSURE" ON PETITIONER TO PLEAD GUILTY WAS IMPROPERLY
MOTIVATED, THE GROSS CONFLICT OF INTEREST OBVIOUS FROM COUNSEL'S
REMARKS LENDS STRONG SUPPORT TO PETITIOENR'S PRESENTENCE CLAIM THAT HE
WAS NOT RECEIVING DEVOTED REPRESENTATION FROM HIS ATTORNEY. 

        II 

I WOULD PERMIT PETITIONER TO WITHDRAW HIS GUILTY PLEA.  AS JUSTICE
DOUGLAS HAS RECENTLY REMINDED US, 

     "HOWEVER IMPORTANT PLEA BARGAINING MAY BE IN THE
ADMINISTRATION

  OF CRIMINAL JUSTICE, OUR OPINIONS HAVE ESTABLISHED THAT A GUILTY

  PLEA IS A SERIOUS AND SOBERING OCCASION INASMUCH AS IT

  CONSTITUTES A WAIVER OF THE FUNDAMENTAL RIGHTS TO A JURY TRIAL,

  DUNCAN V. LOUISIANA, 391 U.S. 145, TO CONFRONT ONE'S ACCUSERS,

  POINTER V. TEXAS, 380 U.S. 400, TO PRESENT WITNESSES IN ONE'S

  DEFENSE, WASHINGTON V. TEXAS, 388 U.S. 14, TO REMAIN SILENT,

  MALLOY V. HOGAN, 378 U.S. 1, AND TO BE CONVICTED OF PROOF BEYOND

  ALL REASONABLE DOUBT, IN RE WINSHIP, 397 U.S. 358."  SANTOBELLO

  V. NEW YORK, 404 U.S. 257, 264(1971) CONCURRING OPINION). 

SEE BOYKIN V. ALABAMA, 395 U.S. 238, 243(1969).  THE PRECONDITION FOR
ALL THESE RIGHTS IS THE CONSTITUTIONAL "RIGHT NOT TO PLEAD GUILTY." 
UNITED STATES V. JACKSON, 390 U.S. 570, 581(1968).  A DEFENDANT MAY
WAIVE HIS CONSTITUTIONAL RIGHTS THROUGH A GUILTY PLEA, BUT SUCH WAIVERS
ARE NOT QUICKLY PRESUMED, AND, IN FACT, ARE VIEWED WITH THE "UTMOST
SOLICITUDE."  BOYKIN V. ALABAMA, SUPRA, AT 243.  OUR DECISIONS,
CONSTITUTIONAL AND STATUTORY, HAVE ALL RECOGNIZED THAT, CONSISTENT WITH
THE REQUIREMENTS OF LAW ENFORCEMENT, ADEQUATE SAFEGUARDS CAN AND SHOULD
EXIST TO GIVE MEANING TO THE RIGHT NOT TO PLEAD GUILTY.  E.G.,
SANTOBELLO V. NEW YORK, SUPRA; BRADY V. UNITED STATES, 397 U.S. 472,
748(1970); BOYKIN V. ALABAMA, SUPRA; MCCARTHY V. UNITED STATES, 394
U.S. 459(1969); WHITE V. MARYLAND, 373 U.S. 59(1963); MACHIBRODA V.
UNITED STATES, 368 U.S. 487(1962); WALKER V. JOHNSTON, 312 U.S.
275(1941); KERCHEVAL V. UNITED STATES, 274 U.S. 220(1927). 

I WOULD NOT VIEW A GUILTY PLEA AS AN IRREVOCABLE WAIVER OF A
DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO A FULL TRIAL, EVEN WHERE
THE PLEA IS, STRICTLY SPEAKING, "VOLUNTARILY" ENTERED.  I ADHERE TO THE
VIEW THAT "WHERE THE DEFENDANT PRESENTS A REASON FOR VACATING HIS PLEA
AND THE GOVERNMENT HAS NOT RELIED ON THE PLEA TO ITS DISADVANTAGE, THE
PLEA MAY BE VACATED AND THE RIGHT TO TRIAL REGAINED, AT LEAST WHERE THE
MOTION TO VACATE IS MADE PRIOR TO SENTENCE AND JUDGMENT."  SANTOBELLO
V. NEW YORK, SUPRA, AT 267-268 (OPINION OF MARSHALL, J., CONCURRING AND
DISSENTING, WITH WHOM BRENNAN, J., AND STEWART, J., JOINED). 

SUCH A RULE IS A SENSIBLE PART OF THE CONSTITUTIONAL LAW OF WAIVER. 
WE VIEW GUILTY PLEAS WITH THE "UTMOST SOLICITUDE" BECAUSE THEY INVOLVE
THE SIMULTANEOUS WAIVER OF SO MANY CONSTITUTIONAL RIGHTS; OUR SYSTEM OF
LAW FAVORS THE ASSERTION OF CONSTITUTIONAL RIGHTS, NOT THEIR WAIVER. 
IT IS INCONSISTENT WITH THAT BASIC VIEWPOINT FOR GUILTY PLEAS TO BE
IRREVOCABLE EVEN BEFORE SENTENCING.  USUALLY BECAUSE OF NEW INFORMATION
OR NEW INSIGHTS, DEFENDANTS MAY HAVE "SOBER SECOND THOUGHTS" ABOUT
THEIR PLEAS.  WHERE THE SENTENCING ITSELF IS POSTPONED BEYOND THE DAY
OF PLEADING, THE DOOR SHOULD NOT BE SLAMMED SHUT TO FORMAL
RECONSIDERATION OF THE DECISION TO PLEAD GUILTY.  A GUILTY LEA IS NOT A
TRAP.  ORDINARILY, A DEFENDANT WHO CHANGES HIS MIND FOR SUFFICIENT
REASON AND IN TIMELY FASHION SHOULD NOT BE DEEMED TO HAVE WAIVED HIS
RIGHT TO A FULL TRIAL.  IN SHORT, ABSENT THE GOVERNMENT'S SHOWING
SPECIFIC AND SUBSTANTIAL HARM, I WOULD GENERALLY PERMIT WITHDRAWAL OF
THE PLEA BEFORE SENTENCING.     SUCH A RULE WOULD NOT COMPROMISE THE
GOVERNMENT'S INTERESTS.  "(IN THE ORDINARY CASE WHERE A MOTION TO
VACATE IS MADE PRIOR TO SENTENCING, THE GOVERNMENT HAS TAKEN NO ACTION
IN RELIANCE ON THE PREVIOUSLY ENTERED GUILTY PLEA AND WOULD SUFFER NO
HARM FROM THE PLEA'S WITHDRAWAL."  SANTOBELLO V. NEW YORK, SUPRA, AT
268 (OPINION OF MARSHALL, J., CONCURRING AND DISSENTING).  THE
DEFENDANT SEEKS ONLY THE BASIC OPPORTUNITY TO CONTEST THE ORIGINAL
CHARGES AGAINST HIM.  A FULL TRIAL COULD BE PROMPTLY HELD, AND, SINCE
THE PERIOD BETWEEN PLEA AND SENTENCING IS USUALLY SHORT, THERE WILL
HAVE BEEN NO SUBSTANTIAL DELAY.  WHERE THE GOVERNMENT CAN SHOW SPECIFIC
AND SUBSTANTIAL HARM, THE DEFENDANT MAY BE HELD TO HIS PLEA.  BUT,
ORDINARILY, THE GOVERNMENT CAN CLAIM ONLY DISAPPOINTED EXPECTATIONS. 
IN SUCH A CASE, THE BALANCE LF INTERESTS MUST FAVOR VINDICATION OF THE
INDIVIDUAL'S MOST BASIC CONSTITUTIONAL RIGHTS. 

IN THE INSTANT CASE, PETITIONER TENDERED A SPECIFIC REASON FOR
VACATING HIS GUILTY PLEA.  PROTESTING HIS INNOCENCE, HE CLAIMED THAT HE
WAS NOT GETTING SATISFACTORY LEGAL REPRESENTATION AND HAD RETAINED NEW
COUNSEL.  THE RECORD AS ALREADY MADE BY JUNE 16, 1967, SHOWED AN
ADMITTED AND LONGSTANDING CONFLICT BETWEEN LAWYER AND CLIENT OVER THE
COURSE OF THE LITIGATION.  PROPERLY ADVISED BY LOYAL COUNSEL, THE
DEFENDANT HIMSELF, OF COURSE, MUST HAVE THE ULTIMATE DECISION ABOUT
PLEADING GUILTY.  THE LAWYER ADMITTED THAT HE HAD BEEN "A LITTLE
FORCEFUL" IN URGING PETITIONER TO PLEAD GUILTY.  GIVEN ALL THESE
THINGS, PETITIONER, IN MY VIEW, HAD AMPLE JUSTIFICATION FOR RESCINDING
THE PLEA BEFORE SENTENCING. 

BUT WE NEED NOT BE LIMITED TO THE BARE RECORD ALREADY MADE BY JUNE
16, 1967.  THE TRIAL JUDGE THEN DID NOT EVEN MINIMALLY INQUIRE INTO THE
FACTS BEHIND PETITIONER'S RATHER INARTICULATE CLAIMS.  HE SHOULD HAVE
DONE SO, RATHER THAN QUICKLY AND SIMPLY DENYING THE MOTION TO VACATE
THE PLEA.  IT WAS NOT UNTIL THE STATE HABEAS ACTION THAT THE FACTS
SURROUNDING PETITIONER'S REPRESENTATION WERE DEVELOPED.  AS THIS
SUBSEQUENT RECORD SHOWS, PETITIONER'S FEARS THAT HE WAS NOT GETTING
DEVOTED REPRESENTATION HAD STRONG OBJECTIVE BASIS.  (IT IS OF COURSE
IRRELEVANT THAT THE EVIDENCE OF A CLEAR CONFLICT OF INTEREST MAY HAVE
EXCEEDED EVEN PETITIONER'S EARLIER FEARS OF INADEQUATE REPRESENTATION. 
/6/  ) AS THE COURT BELOW CONCLUDED, 

     "OBVIOUSLY, THE DEROGATORY REMARKS BY (THE ATTORNEY) ON BEHALF

  OF HIS CLIENTS IN ONE CASE ABOUT A CLIENT WHOM HE IS REPRESENTING

  IN ANOTHER CASE WERE HIGHLY IMPROPER.  'WHEN A CLIENT ENGAGES THE

  SERVICES OF A LAWYER IN A GIVEN PIECE OF BUSINESS HE IS ENTITLED

 TO FEEL THAT, UNTIL THAT BUSINESS IS FINALLY DISPOSED OF IN SOME

  MANNER, HE HAS THE UNDIVIDED LOYALTY OF THE ONE UPON WHOM HE

  LOOKS AS HIS ADVOCATE AND HIS CHAMPION.'"  161 CONN. 337,

  345-346, 288 A.2D 58, 62-63(1971). 

THIS FINDING OF "IMPROPER" CONDUCT GIVES GRAPHIC SUPPORT TO
PETITIONER'S PRESENTENCE CLAIM THAT HIS LAWYERS WERE NOT PROPERLY
REPRESENTING HIS INTERESTS, THE MAIN REASON PETITIONER GAVE FOR WANTING
TO WITHDRAW HIS PLEA. 

THERE IS NO NEED TO DECIDE WHETHER THIS CONFLICT OF INTEREST
DEPRIVED PETITIONER OF HIS FOURTEENTH AMENDMENT RIGHT TO COUNSEL, OR
FUNCTIONED TO MAKE HIS GUILTY PLEA "INVOLUNTARY."  IT IS SUFFICIENT TO
CONCLUDE HERE THAT, BEFORE SENTENCING, PETITIONER'S PLAUSIBLE
DISSATISFACTION WITH COUNSEL CONSTITUTED A SUFFICIENT REASON FOR
WITHDRAWING HIS GUILTY PLEA.  /7/  THE MAJORITY APPEARS TO EQUATE THE
QUESTIONS, SUGGESTING BY ITS ANALYSIS THAT IF THE PLEA WAS NEITHER
INVOLUNTARY NOR SECURED AND "AFFECTED" BY UNCONSTITUTIONALLY
INEFFECTIVE COUNSEL, IT MAY NOT BE VACATED.  BUT THIS IS TO EQUATE THE
SITUATIONS BEFORE AND AFTER SENTENCING.  I THINK WE ARE REQUIRED TO
APPLY A MUCH LESS RIGOROUS STANDARD BEFORE SENTENCING.  THE POINT IN
THIS CASE IS THAT (1) PETITIONER SOUGHT TO VACATE HIS PLEA BEFORE
SENTENCING BECAUSE HE QUESTIONED THE REPRESENTATION HE WAS RECEIVING,
AND THAT (2) PETITIONER'S CONCLUSIONS, ON THIS RECORD, WERE PLAUSIBLE,
TO SAY THE LEAST.  THIS, IT SEEMS TO ME, IS ENOUGH TO PERMIT WITHDRAWAL
OF THE PLEA BEFORE SENTENCING.  THE MAJORITY TOTALLY IGNORES THE FACT
THAT THE RECORD DEMONSTRATES A LONGSTANDING CONFLICT BETWEEN LAWYER AND
CLIENT, THAT THE LAWYER HIMSELF ADMITTED BEING FORCEFUL IN SECURING THE
PLEA, AND THAT THE LAWYER ENGAGED IN WHAT THE COURT BELOW FOUND TO BE
"HIGHLY IMPROPER" CONDUCT IN CONFLICT WITH THE LOYALTY A CLIENT
RIGHTFULLY EXPECTS FROM HIS LAWYER.  AS IF HE DID NOT UNDERSTAND WHOSE
CHOICE IT IS TO GO TO TRIAL, PETITIONER'S OWN LAWYER GAVE THIS
EXTRAORDINARY ACCOUNT OF HIS RELATIONSHIP WITH PETITIONER, WHO
THROUGHOUT PROTESTED HIS INNOCENCE: 

"(DUKES) CLAIMED CONSISTENTLY TO ME THAT HE DIDN'T MAKE ANY SALE OF
NARCOTICS, AND SO I TOLD HIM WHAT I THOUGHT ABOUT THE CASE, AFTER
REVIEWING THE EVIDENCE.  SO FROM THE BEGINNING, DUKES WANTED A TRIAL,
AND I PROBABLY THOUGHT I MIGHT HAVE BEEN TOO FORCEFUL, BUT IT SOMETIMES
HAPPENS THAT YOUR JUDGMENT, YOU'RE TRYING TO IMPOSE UPON A CLIENT,
KNOWING THAT IT'S IN HIS BEST INTEREST, AT LEAST IN YOUR OPINION IT IS,
AND I TOLD CHARLIE IT WOULD BE WINNING THE BATTLE AND CLEARING THE WAY,
BECAUSE THERE WAS NO WAY, WITH THESE FIVE FELONY WARRANTS PENDING
AGAINST HIM, THAT I WAS ABLE TO WIN THEM ALL, BECAUSE I SAID NO MATTER
WHAT YOU THINK ABOUT THIS CASE, IT'S MY OPINION THAT IT'S YOUR BEST
INTEREST TO PLEAD GUILTY, AND AT NO TIME DID I HAVE A CONVERSATION
WHETHER HE WAS GUILTY OR NOT.  MR. DELANEY HANDLED THAT AT THE TIME OF
THE CHANGE OF PLEA, BUT I KNOW WHEN I TALKED TO HIM, HE MAINTAINED HE
WAS INNOCENT.  AT SOME LATER DATE HE CHANGED HIS PLEA, SO I ASSUME
THERE WAS SOME CONVERSATION ABOUT THAT, AND I DON'T KNOW WHAT TOOK
PLACE IN THE MEANTIME, BUT BASICALLY, THERE WAS THE REASON THAT I MADE
THAT STATEMENT TO THE COURT, BECAUSE HE WAS INSISTENT THAT HE WANTED TO
TRY THE CASE, AND I KEPT TRYING TO GET THE MATTER PUT DOWN, BECAUSE I
DIDN'T THINK IT WAS IN HIS BEST INTEREST TO TRY IT."  APP. 120. 

OF COURSE, ON MY VIEW, IT IS OF NO REAL SIGNIFICANCE THAT ON THE DAY
OF THE GUILTY PLEA PETITIONER EXPRESSED SATISFACTION WITH COUNSEL. 
WHERE THE LOYALTIES OF COUNSEL ARE QUESTIONED EVEN AFTER THE PLEA IS
ENTERED, A DEFENDANT UNDERCUTS THE PREMISE OF HIS PRIOR GUILTY PLEA AND
THE WAIVER OF RIGHTS THAT PLEA ENTAILED.  SURELY THE SAME IS TRUE
WHERE, AS HERE, THE DEFENDANT SPECIFICALLY ASSERTS HIS INNOCENCE AFTER
PLEADING.  /8/ 

WHEN A DEFENDANT GIVES A REASON FOR WITHDRAWING HIS PLEA BEFORE
SENTENCING, AND THE REASON IS A GOOD ONE, HE SHOULD BE ALLOWED TO
WITHDRAW THE PLEA AND REGAIN HIS RIGHT TO A TRIAL.  HERE, PETITIONER'S
REASON WAS CONFLICT OF INTEREST OF HIS LAWYER.  A PART OF THIS CONFLICT
WAS HIS LAWYER'S INSISTENCE THAT HE PLEAD GUILTY AND PETITIONER'S
INSISTENCE THAT HE WAS INNOCENT.  THIS IS CERTAINLY A CONFLICT.  NO
WONDER THE LAST WORDS OF PETITIONER BEFORE SENTENCING WERE: 

"I AM RATHER FLABBERGASTED REALLY, BECAUSE I DIDN'T EXPECT THIS THIS
MORNING.  IT JUST PUZZLES ME.  I AM NOT GUILTY OF THE CHARGES.  I AM
NOT GUILTY." 

THE STATE IN OUR CASE HAS NEVER CLAIMED THAT IT WOULD SUFFER ANY
HARM BEYOND DISAPPOINTED EXPECTATIONS ABOUT THE PLEA ITSELF.  /9/
WHERE THE DEFENDANT HAS PRESENTED A PLAUSIBLE REASON FOR WITHDRAWING
HIS PLEA, THIS MERE DISAPPOINTMENT CANNOT BAR HIM FROM REGAINING HIS
CONSTITUTIONAL RIGHTS BEFORE SENTENCING. 

I WOULD REMAND THE CASE WITH INSTRUCTIONS THAT THE PLEA BE VACATED
AND PETITIONER GIVEN AN OPPORTUNITY TO REPLEAD TO THE CHARGES IN THE
INFORMATION. 

/1/  THE RECORD DISCLOSES THAT ON MAY 10 THE CASE WAS CONTINUED
UNTIL MAY 16 FOR TRIAL.  ON MAY 9, AS PETITIONER LEFT THE COURTROOM, HE
WAS ARRESTED BY HARTFORD POLICE ON OTHER CHARGES.  PETITIONER ATTEMPTED
SUICIDE WHILE IN POLICE CUSTODY, AND WAS HOSPITALIZED FOR SEVERAL
DAYS. 

/2/  THE NEW HAVEN ATTORNEY WAS NOT IN THE COURTROOM, ALTHOUGH HE
HAD TELEPHONED THE PROSECUTOR THAT MORNING FROM OUT OF TOWN. 
PETITIONER APPARENTLY EXPECTED HIS NEW LAWYER TO BE PRESENT IN THE
COURTROOM AND TO "TAKE OVER" AFTER THE GUILTY PLEA WAS WITHDRAWN.  APP.
150-151.  THAT LAWYER DID REPRESENT PETITIONER ON HIS DIRECT APPEAL TO
THE SUPREME COURT OF CONNECTICUT.  157 CONN. 498, 255 A.2D 614(1969). 

/3/  I EXPRESS NO VIEW ON THE SUBJECT OF WHETHER FURTHER EVIDENTIARY
DEVELOPMENT MIGHT BE APPROPRIATE WERE PETITIONER TO PURSUE THIS CASE ON
FEDERAL HABEAS CORPUS.  SEE NN. 4 AND 7, INFRA.  GIVEN THE WAY I VIEW
THIS CASE, ENOUGH IS PRESENT IN THE RECORD TO VINDICATE PETITIONER'S
POSITION. 

/4/  IT IS NOT CLEAR FROM THE LAWYER'S WORDS WHETHER HE MEANT THAT
DUKES HAD BEEN "CAPITULATED" INTO PLEADING GUILTY TO THE OFFENSE
ALLEGEDLY COMMITTED WITH THE TWO WOMEN.  AT THE HABEAS HEARING, THE
LAWYER TESTIFIED THAT HE DID NOT REMEMBER DUKES' EVER TAKING A PLEA IN
THAT CASE.  APP. 122.  THERE IS A STRONG BASIS FOR THINKING THAT THE
LAWYER WAS IN FACT REFERRING TO THE GUILTY PLEA ENTERED IN OUR CASE. 
AT THE WOMEN'S SENTENCING, HE SPECIFICALLY STATED THAT "SINCE I WAS ON
BOTH SIDES OF THE CASE, HAVING BEEN ON THE OTHER SIDE ON THE OTHER CASE
I CAN TELL YOUR HONOR THAT IT WAS THESE GIRLS THAT . . . CAPITULATED
(DUKES) INTO TAKING A PLEA.  . . . "  APP. 68.  HOWEVER, THE COURT
BELOW FOUND THAT ALL THE "REMARKS BY (THE ATTORNEY) CONCERNING THE
PLAINTIFF HAD ONLY TO DO WITH THE RELATIONSHIP OF THE PLAINTIFF AND THE
TWO GIRLS IN THAT PARTICULAR CASE WHERE ALL THREE OF THEM WERE
CODEFENDANTS, AND IN NO WAY REFERRED TO THE PRESENT CASE FOR WHICH HE
WAS LATER TO BE SENTENCED."  161 CONN. 337, 341, 288 A.2D 58, 60. 
NEVERTHELESS, CERTIFIED COURT RECORDS SENT TO OUR COURT MAKE CLEAR THAT
DUKES NEVER PLEADED GUILTY TO THE OFFENSES INVOLVING THE WOMEN, AND
THOSE CHARGES WERE NOLLED IN FEBRUARY 1970.  A DIRECT CONNECTION
BETWEEN THE FALSE PRETENSES CASE AND OUR CASE IS APPARENTLY CONCEDED BY
TODAY'S MAJORITY WHEN IT NOTES THAT THE PLEA BARGAIN IN OUR CASE
INCLUDED A DEAL IN WHICH PETITIONER WOULD PLEAD GUILTY TO THE FALSE
PRETENSES CHARGE.  SEE ANTE, AT 253-254.  OBVIOUSLY, IF COUNSEL WAS IN
FACT REPORTING THE WOMEN'S ROLE IN "CAPITULATING" DUKES TO PLEAD GUILTY
IN OUR CASE, HIS OWN CONFLICT OF INTEREST WOULD BE EVEN MORE PERNICIOUS
THAN THAT NOW CLEAR FROM THE RECORD. 

/5/  THE COURT BELOW OBSERVED THAT THESE "IMPROPER REMARKS MADE BY
COUNSEL ON JUNE 2, 1967, WERE A REPETITION OF WHAT HAD ALREADY BEEN
TOLD TO THE COURT IN SUBSTANCE BY THE STATE'S ATTORNEY."  161 CONN.,AT
347, 288 A.2D, AT 63.  (THE COURT MADE A SIMILAR OBSERVATION ABOUT THE
PRESENTENCE REPORT, WHICH IS NOT IN OUR RECORD.)  THIS, OF COURSE, IS
IRRELEVANT TO THE QUESTION OF WHETHER PETITIONER WAS REPRESENTED BY AN
ATTORNEY LOYAL TO HIS INTERESTS.  BUT, IN ANY EVENT, IT IS INCORRECT TO
SAY THAT COUNSEL'S REMARKS MERELY REPEATED THE STATEMENTS OF THE
PROSECUTOR.  THE PROSECUTOR SIMPLY REPORTED THAT THE TWO WOMEN "BECAUSE
ASSOCIATED WITH ONE CHARLES DUKES . . . CHARLES DUKES HAD PARAPHERNALIA
WITH RESPECT TO CHECKS AND MONEY ORDERS AND THEY AGREED TO CASH THESE
CHECKS WITH FALSE CREDENTIALS FURNISHED BY HIM."  APP. 65.  THIS IS A
FAR CRY FROM THE VIVID AND POINTEDLY ARGUMENTATIVE REMARKS OF THE
WOMEN'S (AND PETITIONER'S) LAWYER. 

/6/  THE MAJORITY SUGGESTS THAT ON JUNE 16 PETITIONER KNEW ABOUT HIS
LAWYER'S REMARKS AS THE WOMEN'S SENTENCING, BUT DIDN'T TELL THE COURT. 
ANTE, AT 254-255.  THE MAJORITY GIVES US NO CLUE WHY PETITIONER WOULD
POSSIBLY WANT TO WITHHOLD THIS INFORMATION, IF HE HAD IT.  RATHER, ITS
FACTUAL CONCLUSION RESTS ON A SINGLE PHRASE IN PETITIONER'S HABEAS
CORPUS TESTIMONY, AND BURDENS THIS RATHER INARTICULATE PETITIONER WITH
THE LINGUISTIC PRECISION OF JUSTICES OF THIS COURT.  READ IN CONTEXT
AND WITH WHAT I THINK IS MORE COMMON SENSE, PETITIONER'S AWKWARD
PHRASING CLEARLY REFERS TO THE DAY "WHEN" THE LAWYER'S REMARKS WERE
MADE, NOT WHEN PETITIONER WAS SUBSEQUENTLY "TOLD" ABOUT THEM.  I THINK
IT APPARENT THAT WHEN PETITIONER SOUGHT TO VACATE HIS PLEA ON JUNE 16,
HE DID NOT KNOW ABOUT HIS LAWYER'S PARTICULAR ACT OF BETRAYAL ON JUNE
2.  WHAT IS CLEAR, HOWEVER, IS THAT THE JUDGE WHO SENTENCED DUKES WAS
FULLY AWARD OF THE LAWYER'S REMARKS, HAVING HEARD THEM TWO WEEKS
EARLIER BEFORE SENTENCING THE WOMEN. 

/7/  THE MAJORITY INTIMATES THAT WE ARE RESTRICTED TO DECIDING THIS
CASE ON A "VOLUNTARINESS" THEORY.  IT IS TRUE THAT, SINCE PRECEDENT
SUGGESTED THAT PETITIONER'S ONLY POSSIBLE LINE OF CONSTITUTIONAL ATTACK
WAS TO CHALLENGE THE "VOLUNTARINESS" OF HIS PLEA, HIS PAPERS HAVE
FOCUSED ON THIS APPROACH, ALTHOUGH NOT EXCLUSIVELY.  SEE BRIEF FOR
PETITIONER 6, 19, 22.  BUT WE ARE NOT RESTRICTED TO THE PRECISE
FORMULATION PETITIONER HAS FAVORED.  AT ALL RELEVANT TIMES IN THIS
ACTION, PETITIONER CLAIMED THAT HE SHOULD HAVE BEEN PERMITTED TO
WITHDRAW HIS GUILTY PLEA BEFORE SENTENCING BECAUSE HIS LAWYER WAS NOT
RENDERING SATISFACTORY REPRESENTATION.  IBID.  THIS IS THE CLAIM,
RAISED HERE AND BELOW, WHICH I WOULD REACH AND DECIDE. 

/8/  PETITIONER ALSO CLAIMED THAT ON THE DAY OF THE PLEA HE WAS IN A
WEAKENED PHYSICAL STATE BECAUSE OF HIS RECENT HOSPITALIZATION AND IN A
CONFUSED STATE OF MIND.  THIS CLAIM WAS EXPLORED AT THE STATE HABEAS
HEARING, WHERE PETITIONER ALSO TESTIFIED THAT WHEN HE PLEADED GUILTY HE
THOUGHT THAT THE PLEA WAS MERELY "TEMPORARY."  APP. 149-150, 154. 
ALTHOUGH THE HABEAS COURT FOUND THAT PETITIONER'S PLEA WAS "VOLUNTARILY
AND INTELLIGENTLY MADE," APP. 46, PETITIONER HAD CLEARLY GONE THROUGH A
TRYING WEEK BEFORE THE PLEA.  SEE N. 1, SUPRA. IN MY VIEW, THE
UNCONTRADICTED FACTS ABOUT HIS RECENT HOSPITALIZATION, APP. 40, WOULD
THEMSELVES ENTITLE PETITIONER TO A "SOBER SECOND THOUGHT," AND TO
WITHDRAW HIS PLEA BEFORE SENTENCING. 

/9/  OURS IS NOT A CASE IN WHICH, PRIOR TO THE DEFENDANT'S MOTION TO
VACATE HIS PLEA, THE GOVERNMENT HAD PERFORMED ITS PART OF A PLEA
BARGAIN AND COULD NOT BE RESTORED TO THE STATUS QUO ANTE.  SINCE
PETITIONER HAD PLEADED GUILTY TO THE ORIGINAL CHARGES FILED AGAINST
HIM, NO COUNTS HAD BEEN IRREVOCABLY DISMISSED PRIOR TO PETITIONER'S
MOTION TO VACATE.  WHEN, ON THE DAY OF SENTENCING, PETITIONER REFUSED
TO PLEAD GUILTY TO PENDING CHARGES IN OTHER CASES, HE COULD NOT RECEIVE
THE BENEFITS OF AN AGREEMENT CONCERNING THOSE PENDING CHARGES; BUT THE
GOVERNMENT WAS NOT THEREBY HURT.  SEE SUPRA, AT 262.  OBVIOUSLY, WHERE
THE GOVERNMENT HAS SIMPLY AGREED TO RECOMMEND A SPECIFIC SENTENCE,
WITHDRAWAL OF THE PLEA BEFORE SENTENCING WOULD NOT COMPROMISE THE
GOVERNMENT'S POSITION.     JAMES A. WADE ARGUED THE CAUSE AND FILED
BRIEFS FOR PETITIONER.     JOHN D. LABELLE ARGUED THE CAUSE AND FILED A
BRIEF FOR RESPONDENT. 
..END :






















NLRB V. BURNS SECURITY SERVICES, 406 U.S. 272 


       NATIONAL LABOR RELATIONS BOARD V. BURNS INTERNATIONAL

           SECURITY SERVICES, INC., ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

        SECOND CIRCUIT

        NO. 71-123.  ARGUED JANUARY 13, 1972-- DECIDED MAY 15, 1972

           /0/ 


WACKENHUT CORP., A COMPANY THAT PROVIDED PLANT PROTECTION SERVICE FOR
A LOCKHEED AIRCRAFT SERVICE CO. FACTORY, HAD ENTERED INTO A COLLECTIVE
BARGAINING AGREEMENT WITH THE UNITED PLANT GUARD WORKERS (UPG), THE
UNION CERTIFIED BY THE NATIONAL LABOR RELATIONS BOARD (NLRB) AS THE
REPRESENTATIVE OF A MAJORITY OF WACKENHUT GUARDS AT THE PLANT AFTER AN
NLRB ELECTION.  A FEW MONTHS LATER, WACKENHUT'S SERVICE CONTRACT
EXPIRED, AND IT WAS SUCCEEDED BY BURNS INTERNATIONAL SECURITY SERVICES,
WHICH KNEW OF THE COLLECTIVE-BARGAINING AGREEMENT.  BURNS EMPLOYED 27
OF THE 42 WACKENHUT GUARDS BUT REFUSED TO RECOGNIZE UPG OR TO HONOR THE
AGREEMENT, AND DENIED ANY OBLIGATION TO BARGAIN WITH UPG.  THE NLRB
FOUND THAT BURNS VIOLATED SECS. 8(A)(5) AND 8(A)(1) OF THE NATIONAL
LABOR RELATIONS ACT BY FAILING TO RECOGNIZE AND BARGAIN WITH UPG AND BY
REFUSING TO HONOR THE COLLECTIVE-BARGAINING AGREEMENT, AND ORDER BURNS
TO ABIDE BY THE TERMS OF THE AGREEMENT AND TO "GIVE RETROACTIVE EFFECT
TO ALL THE CLAUSES OF SAID (WACKENHUT) CONTRACT AND, WITH INTEREST OF 6
PERCENT, MAKE WHOLE ITS EMPLOYEES FOR ANY LOSSES SUFFERED BY REASON OF
RESPONDENT'S (BURNS') REFUSAL TO HONOR, ADOPT AND ENFORCE SAID
CONTRACT."  THE COURT OF APPEALS HELD THAT THE NLRB HAD EXCEEDED ITS
POWERS IN ORDERING BURNS TO HONOR THE CONTRACT EXECUTED BY WACKENHUT. 
HELD: 

1.  WHERE THE BARGAINING UNIT REMAINED UNCHANGED AND A MAJORITY OF
THE EMPLOYEES HIRED BY THE NEW EMPLOYER WERE REPRESENTED BY A RECENTLY
CERTIFIED BARGAINING AGENT, THE NLRB CORRECTLY IMPLEMENTED THE EXPRESS
MANDATES OF SECS. 8(A)(5) AND 9(A) OF THE ACT BY ORDERING THE NEW
EMPLOYER, BURNS, TO BARGAIN WITH THE INCUMBENT UNION, UPG.  PP. 277
281. 

2.  WHILE SUCCESSOR EMPLOYERS MAY BE BOUND TO RECOGNIZE AND BARGAIN
WITH THE INCUMBENT UNION, THEY ARE NOT BOUND BY THE SUBSTANTIVE
PROVISIONS OF A COLLECTIVE-BARGAINING AGREEMENT NEGOTIATED BY THEIR
PREDECESSORS BUT NOT AGREED TO OR ASSUMED BY THEM.  JOHN WILEY & SONS,
INC. V. LIVINGSTON, 376 U.S. 543, DISTINGUISHED.  PP. 281-291. 

3.  THE NLRB'S ORDER FOR MONETARY RESTITUTION TO BURNS' EMPLOYEES
CANNOT BE SUSTAINED ON THE GROUND THAT BURNS COMMITTED AN UNFAIR LABOR
PRACTICE BY UNILATERALLY CHANGING EXISTING TERMS AND CONDITIONS OF
EMPLOYMENT.  BURNS HAD NO PREVIOUS RELATIONSHIP TO THE UNIT AND NO
OUTSTANDING TERMS AND CONDITIONS OF EMPLOYMENT, SO THAT BURNS DID NOT
CHANGE ITS TERMS AND CONDITIONS OF EMPLOYMENT WHEN IT SPECIFIED THE
INITIAL BASIS ON WHICH IT WOULD HIRE EMPLOYEES WHEN IT INAUGURATED ITS
PROTECTION SERVICE AT THE PLANT.  PP. 292-296. 

441 F.2D 911, AFFIRMED. 

WHITE, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT IN NO. 71
123, AND FOR THE COURT IN NO. 71-198, IN WHICH DOUGLAS, STEWART,
MARSHALL, AND BLACKMUN, JJ., JOINED.  REHNQUIST, J., FILED AN OPINION
CONCURRING IN NO. 71-123 AND DISSENTING IN NO. 71-198, IN WHICH BURGER,
C.J., AND BRENNAN AND POWELL, JJ., JOINED, POST, P. 196. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

BURNS INTERNATIONAL SECURITY SERVICES, INC. (BURNS), REPLACED
ANOTHER EMPLOYER, THE WACKENHUT CORP. (WACKENHUT), WHICH HAD PREVIOUSLY
PROVIDED PLANT PROTECTION SERVICES FOR THE LOCKHEED AIRCRAFT SERVICE
CO. (LOCKHEED) LOCATED AT THE ONTARIO INTERNATIONAL AIRPORT IN
CALIFORNIA.  WHEN BURNS BEGAN PROVIDING SECURITY SERVICE, IT EMPLOYED
42 GUARDS; 27 OF THEM HAD BEEN EMPLOYED BY WACKENHUT.  BURNS REFUSED,
HOWEVER, TO BARGAIN WITH THE UNITED PLANT GUARD WORKERS OF AMERICA
(UPG) WHICH HAD BEEN CERTIFIED AFTER A NATIONAL LABOR RELATIONS BOARD
(BOARD) ELECTION AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
WACKENHUT'S EMPLOYEES LESS THAN FOUR MONTHS EARLIER.  THE ISSUES
PRESENTED IN THIS CASE ARE WHETHER BURNS REFUSED TO BARGAIN WITH A
UNION REPRESENTING A MAJORITY OF EMPLOYEES IN AN APPROPRIATE UNIT AND
WHETHER THE NATIONAL LABOR RELATIONS BOARD COULD ORDER BURNS TO OBSERVE
THE TERMS OF A COLLECTIVE-BARGAINING CONTRACT SIGNED BY THE UNION AND
WACKENHUT THAT BURNS HAD NOT VOLUNTARILY ASSUMED.  RESOLUTION TURNS TO
A GREAT EXTENT ON THE PRECISE FACTS INVOLVED HERE. 

        I 

THE WACKENHUT CORP. PROVIDED PROTECTION SERVICES AT THE LOCKHEED
PLANT FOR FIVE YEARS BEFORE BURNS TOOK OVER THIS TASK.  ON FEBRUARY 28,
1967, A FEW MONTHS BEFORE THE CHANGEOVER OF GUARD EMPLOYERS, A MAJORITY
OF THE WACKENHUT GUARDS SELECTED THE UNION AS THEIR EXCLUSIVE
BARGAINING REPRESENTATIVE IN A BOARD ELECTION AFTER WACKENHUT AND THE
UNION HAD AGREED THAT THE LOCKHEED PLANT WAS THE APPROPRIATE BARGAINING
UNIT.  ON MARCH 8, THE REGIONAL DIRECTOR CERTIFIED THE UNION AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE FOR THESE EMPLOYEES, AND, ON APRIL
29, WACKENHUT AND THE UNION ENTERED INTO A THREE-YEAR COLLECTIVE
BARGAINING CONTRACT. 

MEANWHILE, SINCE WACKENHUT'S ONE-YEAR SERVICE AGREEMENT TO PROVIDE
SECURITY PROTECTION WAS DUE TO EXPIRE ON JUNE 30, LOCKHEED HAD CALLED
FOR BIDS FROM VARIOUS COMPANIES SUPPLYING THESE SERVICES, AND BOTH
BURNS AND WACKENHUT SUBMITTED ESTIMATES.  AT A PRE-BID CONFERENCE
ATTENDED BY BURNS ON MAY 15, A REPRESENTATIVE OF LOCKHEED INFORMED THE
BIDDERS THAT WACKENHUT'S GUARDS WERE REPRESENTED BY THE UNION, THAT THE
UNION HAD RECENTLY WON A BOARD ELECTION AND BEEN CERTIFIED, AND THAT
THERE WAS IN EXISTENCE A COLLECTIVE-BARGAINING CONTRACT BETWEEN
WACKENHUT AND THE UNION.  APP. 4-5, 126.  /1/  LOCKHEED THEN ACCEPTED
BURNS' BID, AND ON MAY 31 WACKENHUT WAS NOTIFIED THAT BURNS WOULD
ASSUME RESPONSIBILITY FOR PROTECTION SERVICES ON JULY 1.  BURNS CHOSE
TO RETAIN 27 OF THE WACKENHUT GUARDS, AND IT BROUGHT IN 15 OF ITS OWN
GUARDS FROM OTHER BURNS LOCATIONS. 

DURING JUNE, WHEN BURNS HIRED THE 27 WACKENHUT GUARDS, IT SUPPLIED
THEM WITH MEMBERSHIP CARDS OF THE AMERICAN FEDERATION OF GUARDS (AFG),
ANOTHER UNION WITH WHICH BURNS HAD COLLECTIVE-BARGAINING CONTRACTS AT
OTHER LOCATIONS, AND INFORMED THEM THAT THEY HAD TO BECOME AFG MEMBERS
TO WORK FOR BURNS, THAT THEY WOULD NOT RECEIVE UNIFORMS OTHERWISE, AND
THAT BURNS "COULD NOT LIVE WITH" THE EXISTING CONTRACT BETWEEN
WACKENHUT AND THE UNION.  ON JUNE 29, BURNS RECOGNIZED THE AFG ON THE
THEORY THAT IT HAD OBTAINED A CARD MAJORITY.  ON JULY 12, HOWEVER, THE
UPG DEMANDED THAT BURNS RECOGNIZE IT AS THE BARGAINING REPRESENTATIVE
OF BURNS' EMPLOYEES AT LOCKHEED AND THAT BURNS HONOR THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN IT AND WACKENHUT.  WHEN BURNS REFUSED, THE
UPG FILED UNFAIR LABOR PRACTICE CHARGES, AND BURNS RESPONDED BY
CHALLENGING THE APPROPRIATENESS OF THE UNIT AND BY DENYING ITS
OBLIGATION TO BARGAIN. 

THE BOARD, ADOPTING THE TRIAL EXAMINER'S FINDINGS AND CONCLUSIONS,
FOUND THE LOCKHEED PLANT AN APPROPRIATE UNIT AND HELD THAT BURNS HAD
VIOLATED SECS. 8(A)(1) AND 8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT,
49 STAT. 452, AS AMENDED, 61 STAT. 140, 29 U.S.C. 158(A)(2), 158(A)(1),
BY UNLAWFULLY RECOGNIZING AND ASSISTING THE AFG, A RIVAL OF THE UPG;
AND THAT IT HAD VIOLATED SECS. 8(A)(5) AND 8(A)(1), 29 U.S.C.
158(A)(5), 158(A)(1), BY FAILING TO RECOGNIZE AND BARGAIN WITH THE UPG
AND BY REFUSING TO HONOR THE COLLECTIVE-BARGAINING AGREEMENT THAT HAD
BEEN NEGOTIATED BETWEEN WACKENHUT AND UPG.  /2/ 

BURNS DID NOT CHALLENGE THE SEC. (A)(2) UNLAWFUL ASSISTANCE FINDING
IN THE COURT OF APPEALS BUT SOUGHT REVIEW OF THE UNIT DETERMINATION AND
THE ORDER TO BARGAIN AND OBSERVE THE PRE-EXISTING COLLECTIVE-BARGAINING
CONTRACT.  THE COURT OF APPEALS ACCEPTED THE BOARD'S UNIT DETERMINATION
AND ENFORCED THE BOARD'S ORDER INSOFAR AS IT RELATED TO THE FINDING OF
UNLAWFUL ASSISTANCE OF A RIVAL UNION AND THE REFUSAL TO BARGAIN, BUT IT
HELD THAT THE BOARD HAD EXCEEDED ITS POWERS IN ORDERING BURNS TO HONOR
THE CONTRACT EXECUTED BY WACKENHUT.  BOTH BURNS AND THE BOARD
PETITIONER FOR CERTIORARI, BURNS CHALLENGING THE UNIT DETERMINATION AND
THE BARGAINING ORDER AND THE BOARD MAINTAINING ITS POSITION THAT BURNS
WAS BOUND BY THE WACKENHUT CONTRACT, AND WE GRANTED BOTH PETITIONS,
THOUGH WE DECLINED TO REVIEW THE PROPRIETY OF THE BARGAINING UNIT, A
QUESTION WHICH WAS PRESENTED IN NO. 71-198.  404 U.S. 822(1971). 

II 

WE ADDRESS FIRST BURNS' ALLEGED DUTY TO BARGAIN WITH THE UNION, AND
IN DOING SO IT IS WELL TO RETURN TO THE SPECIFIC PROVISIONS OF THE ACT,
WHICH COURTS AND THE BOARD ALIKE ARE BOUND TO OBSERVE.  SECTION
8(A)(5), AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, 29
U.S.C. 158(A)(5), MAKES IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER "TO
REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF HIS
EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 159(A) OF THIS TITLE." 
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.  . . . "  BECAUSE THE ACT ITSELF
IMPOSES A DUTY TO BARGAIN WITH THE REPRESENTATIVE OF A MAJORITY OF THE
EMPLOYEES IN AN APPROPRIATE UNIT, THE INITIAL ISSUE BEFORE THE BOARD
WAS WHETHER THE CHARGING UNION WAS SUCH A BARGAINING REPRESENTATIVE. 

THE TRIAL EXAMINER FIRST FOUND THAT THE UNIT DESIGNATED BY THE
REGIONAL DIRECTOR WAS AN APPROPRIATE UNIT FOR BARGAINING.  THE UNIT
FOUND APPROPRIATE WAS DEFINED AS "(ALL FULL-TIME AND REGULAR PART-TIME
EMPLOYEES OF (BURNS) PERFORMING PLANT PROTECTION DUTIES AS DETERMINED
IN SECTION 9(B)(3) OF THE (NATIONAL LABOR RELATIONS) ACT AT LOCKHEED,
ONTARIO INTERNATIONAL AIRPORT; EXCLUDING OFFICE CLERICAL EMPLOYEES,
PROFESSIONAL EMPLOYEES, SUPERVISORS, AND ALL OTHER EMPLOYEES AS DEFINED
IN THE ACT."  THIS DETERMINATION WAS AFFIRMED BY THE BOARD, ACCEPTED BY
THE COURT OF APPEALS, AND IS NOT AT ISSUE HERE BECAUSE PRETERMITTED BY
OUR LIMITED GRANT OF CERTIORARI. 

THE TRIAL EXAMINER THEN FOUND, INTER ALIA, THAT BURNS "HAD IN ITS
EMPLOY A MAJORITY OF WACKENHUT'S FORMER EMPLOYEES," AND THAT THESE
EMPLOYEES HAD ALREADY EXPRESSED THEIR CHOICE OF A BARGAINING
REPRESENTATIVE IN AN ELECTION HELD A SHORT TIME BEFORE.  BURNS WAS
THEREFORE HELD TO HAVE A DUTY TO BARGAIN, WHICH AROSE WHEN IT SELECTED
AS ITS WORK FORCE THE EMPLOYEES OF THE PREVIOUS EMPLOYER TO PERFORM THE
SAME TASKS AT THE SAME PLACE THEY HAD WORKED IN THE PAST. 

THE BOARD, WITHOUT REVISION, ACCEPTED THE TRIAL EXAMINER'S FINDINGS
AND CONCLUSIONS WITH RESPECT TO THE DUTY TO BARGAIN, AND WE SEE NO
BASIS FOR SETTING THEM ASIDE.  IN AN ELECTION HELD BUT A FEW MONTHS
BEFORE, THE UNION HAD BEEN DESIGNATED BARGAINING AGENT FOR THE
EMPLOYEES IN THE UNIT AND A MAJORITY OF THESE EMPLOYEES HAD BEEN HIRED
BY BURNS FOR WORK IN THE IDENTICAL UNIT.  IT IS UNDISPUTED THAT BURNS
KNEW ALL THE RELEVANT FACTS IN THIS REGARD AND WAS AWARE OF THE
CERTIFICATION AND OF THE EXISTENCE OF A COLLECTIVE-BARGAINING
CONTRACT.  IN THESE CIRCUMSTANCES, IT WAS NOT UNREASONABLE FOR THE
BOARD TO CONCLUDE THAT THE UNION CERTIFIED TO REPRESENT ALL EMPLOYEES
IN THE UNIT STILL REPRESENTED A MAJORITY OF THE EMPLOYEES AND THAT
BURNS COULD NOT REASONABLY HAVE ENTERTAINED A GOOD-FAITH DOUBT ABOUT
THAT FACT.  BURNS' OBLIGATION TO BARGAIN WITH THE UNION OVER TERMS AND
CONDITIONS OF EMPLOYMENT STEMMED FROM ITS HIRING OF WACKENHUT'S
EMPLOYEES AND FROM THE RECENT ELECTION AND BOARD CERTIFICATION.  IT HAS
BEEN CONSISTENTLY HELD THAT A MERE CHANGE OF EMPLOYERS OR OF OWNERSHIP
IN THE EMPLOYING INDUSTRY IS NOT SUCH AN "UNUSUAL CIRCUMSTNACE" AS TO
AFFECT THE FORCE OF THE BOARD'S CERTIFICATION WITHIN THE NORMAL
OPERATIVE PERIOD IF A MAJORITY OF EMPLOYEES AFTER THE CHANGE OF
OWNERSHIP OR MANAGEMENT WERE EMPLOYED BY THE PROCEDING EMPLOYER.  NLRB
V. DOWNTOWN BAKERY CORP., 330 F.2D 921, 925(CA6 1964); NLRB V.
MCFARLAND, 306 F.2D 219, 221(CA10 1962); NLRB V. AUTO VENTSHADE, INC.,
276 F.2D 303, 307(CA5 1960); NLRB V. LUNDER SHOE CORP., 211 F.2D 284,
286(CA1 1954); NLRB V. ARMATO, 199 F.2D, 800, 803(CA7 1952); SOUTH
CAROLINA GRANITE CO., 58 N.L.R.B. 1448, 1463-1464(1944), ENFORCED SUB
NOM. NLRB V. BLAIR QUARRIES, INC., 152 F.2D 25(CA4 1945); NORTHWEST
GLOVE CO., 74 N.L.R.B. 1697, 1700(1947); JOHNSON READY MIX CO., 142
N.L.R.B. 437, 442(1963)).  /3/ 

IT GOES WITHOUT SAYING, OF COURSE, THAT BURNS WAS NOT ENTITLED TO
UPSET WHAT IT SHOULD HAVE ACCEPTED AS AN ESTABLISHED UNION MAJORITY BY
SOLICITING REPRESENTATION CARDS FOR ANOTHER UNION AND THEREBY
COMMITTING THE UNFAIR LABOR PRACTICE OF WHICH IT WAS FOUND GUILTY BY
THE BOARD.  THAT HOLDING WAS NOT CHALLENGED HERE AND MAKES IT
IMPERATIVE THAT THE SITUATION BE VIEWED AS IT WAS WHEN BURNS HIRED ITS
EMPLOYEES FOR THE GUARD UNIT, A MAJORITY OF WHOM WERE REPRESENTED BY A
BOARD-CERTIFIED UNION.  SEE NLRB V. GISSEL PACKING CO., 395 U.S. 575,
609, 610-616(B1969). 

IT WOULD BE A WHOLLY DIFFERENT CASE IF THE BOARD HAD DETERMINED THAT
BECAUSE BURNS' OPERATIONAL STRUCTURE AND PRACTICES DIFFERED FROM THOSE
OF WACKENHUT, THE LOCKHEED BARGAINING UNIT WAS NO LONGER AN APPROPRIATE
ONE.  /4/  LIKEWISE, IT WOULD BE DIFFERENT IF BURNS HAD NOT HIRED
EMPLOYEES ALREADY REPRESENTED BY A UNION CERTIFIED AS A BARGAINING
AGENT, /5/  AND THE BOARD RECOGNIZED AS MUCH AT ORAL ARGUMENT.  /6/
BUT WHERE THE BARGAINING UNIT REMAINS UNCHANGED AND A MAJORITY OF THE
EMPLOYEES HIRED BY THE NEW EMPLOYER ARE REPRESENTED BY A RECENTLY
CERTIFIED BARGAINING AGENT THERE IS LITTLE BASIS FOR FAULTING THE
BOARD'S IMPLEMENTATION OF THE EXPRESS MANDATES OF SEC. 8(A)(5) AND SEC.
9(A) BY ORDERING THE EMPLOYER TO BARGAIN WITH THE INCUMBENT UNION. 
THIS IS THE VIEW OF SEVERAL COURTS OF APPEALS AND WE AGREE WITH THOSE
COURTS.  NLRB V. ZAYRE CORP., 424 F.2D 1159, 1162(CA5 1970); TOM-A-HAWK
TRANSIT, INC., V. NLRB, 419 F.2D 1025, 1026-1027(CA7 1969); S. S.
KRESGE CO. V. NLRB, 416 F.2D 1225, 1234(CA6 1969); NLRB V. MCFARLAND,
306 F.2D, AT 220. 

        III 

IT DOES NOT FOLLOW, HOWEVER, FROM BURNS' DUTY TO BARGAIN THAT IT WAS
BOUND TO OBSERVE THE SUBSTANTIVE TERMS OF THE COLLECTIVE-BARGAINING
CONTRACT THE UNION HAD NEGOTIATED WITH WACKENHUT AND TO WHICH BURNS HAD
IN NO WAY AGREED.  SECTION 8(D) OF THE ACT EXPRESSLY PROVIDES THAT THE
EXISTENCE OF SUCH BARGAINING OBLIGATION "DOES NOT COMPEL EITHER PARTY
TO AGREE TO A PROPOSAL OR REQUIRE THE MAKING OF A CONCESSION." 
CONGRESS HAS CONSISTENTLY DECLINED TO INTERFERE WITH FREE COLLECTIVE
BARGAINING 7/7 AND HAS PREFERRED THAT DEVICE, OR VOLUNTARY ARBITRATION,
TO THE IMPOSITION OF COMPULSORY TERMS AS A MEANS OF AVOIDING OR
TERMINATING LABOR DISPUTES.  IN ITS REPORT ACCOMPANYING THE 1935 ACT,
THE SENATE COMMITTEE ON EDUCATION AND LABOR STATED: 

"THE COMMITTEE WISHES TO DISPEL ANY POSSIBLE FALSE IMPRESSION

  THAT THIS BILL IS DESIGNED TO COMPEL THE MAKING OF AGREEMENTS OR

  TO PERMIT GOVERNMENTAL SUPERVISION OF THEIR TERMS.  IT MUST BE

  STRESSED THAT THE DUTY TO BARGAIN COLLECTIVELY DOES NOT CARRY

  WITH IT THE DUTY TO REACH AN AGREEMENT, BECAUSE THE ESSENCE OF

  COLLECTIVE BARGAINING IS THAT EITHER PARTY SHALL BE FREE TO

  DECIDE WHETHER PROPOSALS MADE TO IT ARE SATISFACTORY."  S. REP.

  NO. 573, 74TH CONG., 1ST SESS., 12(1935). 

THIS COURT IMMEDIATELY NOTED THIS FUNDAMENTAL THEME OF THE LEGISLATION:
"(THE ACT) DOES NOT COMPEL ANY AGREEMENT WHATEVER.  . . . THE THEORY
OF THE ACT IS THAT FREE OPPORTUNITY FOR NEGOTIATION WITH ACCREDITED
REPRESENTATIVES OF EMPLOYEES IS LIKELY TO PROMOTE INDUSTRIAL PEACE AND
MAY BRING ABOUT THE ADJUSTMENTS AND AGREEMENTS WHICH THE ACT IN ITSELF
DOES NOT ATTEMPT TO COMPEL."  NLRB V. JONES & LOUGHLIN STEEL CORP., 301
U.S. 1, 45(1937).  SEE ALSO NLRB V. AMERICAN NATIONAL INSURANCE CO.,
343 U.S. 395, 401-402(1952); TEAMSTERS LOCAL 357 V. NLRB, 365 U.S. 667,
676-677(1961). 

STATUTORY MANDATE, AND WAS ENACTED IN 1947 BECAUSE CONGRESS FEARED THAT
"THE PRESENT BOARD HAS GONE VARY FAR, IN THE GUISE OF DETERMINING
WHETHER OR NOT EMPLOYERS HAD BARGAINED IN GOOD FAITH, IN SETTING ITSELF
UP AS THE JUDGE OF WHAT CONCESSIONS AN EMPLOYER MUST MAKE AND OF THE
PROPOSALS AND COUNTERPROPOSALS THAT HE MAY OR MAY NOT MAKE.  . . .
(UNLESS CONGRESS WRITES INTO THE LAW GUIDES FOR THE BOARD TO FOLLOW,
THE BOARD MAY ATTEMPT TO CARRY THIS PROCESS STILL FURTHER AND SEEK TO
CONTROL MORE AND MORE THE TERMS OF COLLECTIVE BARGAINING AGREEMENTS." 
H.R. REP. NO. 245, 80TH CONG., 1ST SESS., 19-20(1947).     THIS HISTORY
WAS REVIEWED IN DETAIL AND GIVEN CONTROLLING EFFECT IN H. K. PORTER CO.
V. NLRB, 397 U.S. 99(1970).  THERE THIS COURT, WHILE AGREEING THAT THE
EMPLOYER VIOLATED SEC. 8(A)(5) BY ADAMANTLY REFUSING TO AGREE TO A DUES
CHECKOFF, INTENDING THEREBY TO FRUSTRATE THE CONSUMMATION OF ANY
BARGAINING AGREEMENT, HELD THAT THE BOARD HAD ERRED IN ORDERING THE
EMPLOYER TO AGREE TO SUCH A PROVISION: 

     "(WHILE THE BOARD DOES HAVE POWER . . . TO REQUIRE EMPLOYERS

  AND EMPLOYEES TO NEGOTIATE, IT IS WITHOUT POWER TO COMPEL A

  COMPANY OR A UNION TO AGREE TO ANY SUBSTANTIVE CONTRACTUAL

  PROVISION OF A COLLECTIVE-BARGAINING AGREEMENT. 

        .          .       .          . 

"IT WOULD BE ANOMALOUS INDEED TO HOLD THAT WHILE SEC. 8(D) PROHIBITS
THE BOARD FROM RELYING ON A REFUSAL TO AGREE AS THE SOLE EVIDENCE OF
BAD-FAITH BARGAINING, THE ACT PERMITS THE BOARD TO COMPEL AGREEMENT IN
THAT SAME DISPUTE.  THE BOARD'S REMEDIAL POWERS UNDER SEC. 10 OF THE
ACT ARE BROAD, BUT THEY ARE LIMITED TO CARRYING OUT THE POLICIES OF THE
ACT ITSELF.  ONE OF THESE FUNDAMENTAL POLICIES IS FREEDOM OF
CONTRACT."  397 U.S.,AT 102, 108. 

THESE CONSIDERATION, EVIDENT FROM THE EXPLICIT LANGUAGE AND
LEGISLATIVE HISTORY OF THE LABOR LAWS, UNDERLAY THE BOARD'S PRIOR
DECISIONS, WHICH UNTIL NOW HAVE CONSISTENTLY HELD THAT, ALTHOUGH
SUCCESSOR EMPLOYERS MAY BE BOUND TO RECOGNIZE AND BARGAIN WITH THE
UNION, THEY ARE NOT BOUND BY THE SUBSTANTIVE PROVISIONS OF A COLLECTIVE
BARGAINING CONTRACT NEGOTIATED BY THEIR PREDECESSORS BUT NOT AGREED TO
OR ASSUMED BY THEM.  ROHLIK, INC., 145 N.L.R.B. 1236, 1242 N. 15(1964);
GENERAL EXTRUSION CO., 212 N.L.R.B. 413, 414(1955); SLATER SYSTEM
MARYLAND, INC., 134 N.L.R.B. 865, 866(1961); MATTER OF ILWU (JUNEAU
SPRUCE), 82 N.L.R.B. 650, 658-659(1949), ENFORCED, 189 F.2D 177(CA9
1951), AFF'D ON OTHER GROUNDS, 342 U.S. 237(1952).  AS THE COURT OF
APPEALS SAID IN THIS CASE, "IN NONE OF THE PREVIOUS SUCCESSORSHIP CASES
HAS THE BOARD EVER REACHED THAT RESULT.  THE SUCCESSOR HAS ALWAYS BEEN
HELD MERELY TO HAVE THE DUTY OF BARGAINING WITH HIS PREDECESSOR'S
UNION."  /8/  441 F.2D, AT 915. 

THE BOARD, HOWEVER, HAS NOW DEPARTED FROM THIS VIEW AND ARGUES THAT
THE SAME POLICIES THAT MANDATE A CONTINUITY OF BARGAINING OBLIGATION
ALSO REQUIRE THAT SUCCESSOR EMPLOYERS BE BOUND TO THE TERMS OF A
PREDECESSOR'S COLLECTIVE-BARGAINING CONTRACT.  IT ASSERTS THAT THE
STABILITY OF LABOR RELATIONS WILL BE JEOPARDIZED AND THAT EMPLOYEES
WILL FACE UNCERTAINTY AND A GAP IN THE BARGAINED-FOR TERMS AND
CONDITIONS OF EMPLOYMENT, AS WELL AS THE POSSIBLE LOSS OF ADVANTAGES
GAINED BY PRIOR NEGOTIATIONS, UNLESS THE NEW EMPLOYER IS HELD TO HAVE
ASSUMED, AS A MATTER OF FEDERAL LABOR LAW, THE OBLIGATIONS UNDER THE
CONTRACT ENTERED INTO BY THE FORMER EMPLOYER.  RECOGNIZING THAT UNDER
NORMAL CONTRACT PRINCIPLES A PARTY WOULD NOT BE BOUND TO A CONTRACT IN
THE ABSENCE OF CONSENT, THE BOARD NOTES THAT IN JOHN WILEY & SONS, INC.
V. LIVINGSTON, 376 U.S. 543, 550(1964), THE COURT DECLARED THAT "A
COLLECTIVE BARGAINING AGREEMENT IS NOT AN ORDINARY CONTRACT"  BUT IS,
RATHER, AN OUTLINE OF THE COMMON LAW OF A PARTICULAR PLANT OR
INDUSTRY.  THE COURT HELD IN WILEY THAT ALTHOUGH THE PREDECESSOR
EMPLOYER WHICH HAD SIGNED A COLLECTIVE-BARGAINING CONTRACT WITH THE
UNION HAD DISAPPEARED BY MERGER WITH THE SUCCESSOR, THE UNION COULD
COMPEL THE SUCCESSOR TO ARBITRATE THE EXTENT TO WHICH THE SUCCESSOR WAS
OBLIGATED UNDER THE COLLECTIVE-BARGAINING AGREEMENT.  THE BOARD
CONTENDS THAT THE SAME FACTORS THAT THE COURT EMPHASIZED IN WILEY, THE
PEACEFUL SETTLEMENT OF INDUSTRIAL CONFLICTS AND "PROTECTION (OF) THE
EMPLOYEES (AGAINST) A SUDDEN CHANGE IN THE EMPLOYMENT RELATIONSHIP,"
ID., AT 549, REQUIRE THAT BURNS BE TREATED UNDER THE COLLECTIVE
BARGAINING CONTRACT EXACTLY AS WACKENHUT WOULD HAVE BEEN IF IT HAD
CONTINUED PROTECTING THE LOCKHEED PLANT. 

WE DO NOT FIND WILEY CONTROLLING IN THE CIRCUMSTANCES HERE.  WILEY
AROSE IN THE CONTEST OF A SEC. 301 SUIT TO COMPEL ARBITRATION, NOT IN
THE CONTEST OF AN UNFAIR LABOR PRACTICE PROCEEDING WHERE THE BOARD IS
EXPRESSLY LIMITED BY THE PROVISIONS OF SEC. 8(D).  THAT DECISION
EMPHASIZED "(THE PREFERENCE OF NATIONAL LABOR POLICY FOR ARBITRATION AS
A SUBSTITUTE FOR TESTS OF STRENGTH BEFORE CONTENDING FORCES" AND HELD
ONLY THAT THE AGREEMENT TO ARBITRATE, "CONSTRUED IN THE CONTEXT OF A
NATIONAL LABOR POLICY," SURVIVED THE MERGER AND LEFT TO THE ARBITRATOR,
SUBJECT TO JUDICIAL REVIEW, THE ULTIMATE QUESTION OF THE EXTENT TO
WHICH, IF ANY, THE SURVIVING COMPANY WAS BOUND BY OTHER PROVISIONS OF
THE CONTRACT.  ID., AT 549, 551. 

WILEY'S LIMITED ACCOMODATION BETWEEN THE LEGISLATIVE ENDORSEMENT OF
FREEDOM OF CONTRACT AND THE JUDICIAL PREFERENCE FOR PEACEFUL ARBITRAL
SETTLEMENT OF LABOR DISPUTES DOES NOT WARRANT THE BOARD'S HOLDING THAT
THE EMPLOYER COMMITS AN UNFAIR LABOR PRACTICE UNLESS HE HONORS THE
SUBSTANTIVE TERMS OF THE PRE-EXISTING CONTRACT.  THE PRESENT CASE DOES
NOT INVOLVE A SEC. 301 SUIT; NOR DOES IT INVOLVE THE DUTY TO
ARBITRATE.  RATHER, THE CLAIM IS THAT BURNS MUST BE HELD BOUND BY THE
CONTRACT EXECUTED BY WACKENHUT, WHETHER BURNS HAS AGREED TO IT OR NOT
AND EVEN THOUGH BURNS MADE IT PERFECTLY CLEAR THAT IT HAD NO INTENTION
OF ASSUMING THAT CONTRACT.  WILEY SUGGEST NO SUCH OPEN-ENDED
OBLIGATION.  ITS NARROWER HOLDING DEALT WITH A MERGER OCCURRING AGAINST
A BACKGROUND OF STATE LAW THAT EMBODIED THE GENERAL RULE THAT IN MERGER
SITUATIONS THE SURVIVING CORPORATION IS LIABLE FOR THE OBLIGATIONS OF
THE DISAPPEARING CORPORATION.  SEE N.Y. STOCK CORP. LAW SEC. 90(1951);
15 W.FLETCHER, PRIVATE CORPORATIONS 7121(1961 REV. ED.).  HERE THERE
WAS NO MERGER OR SALE OF ASSETS, AND THERE WERE NO DEALINGS WHATSOEVER
BETWEEN WACKENHUT AND BURNS.  ON THE CONTRARY, THEY WERE COMPETITORS
FOR THE SAME WORK, EACH BIDDING FOR THE SERVICE CONTRACT AT LOCKHEED. 
BURNS PURCHASED NOTHING FROM WACKENHUT AND BECAME LIABLE FOR NONE OF
ITS FINANCIAL OBLIGATIONS.  BURNS MERELY HIRED ENOUGH OF WACKENHUT'S
EMPLOYEES TO REQUIRE IT TO BARGAIN WITH THE UNION AS COMMANDED BY SEC.
8(A)(5) AND SEC. 9(A).  BUT THIS CONSIDERATION IS A WHOLLY INSUFFICIENT
BASIS FOR IMPLYING EITHER IN FACT OR IN LAW THAT BURNS HAD AGREED OR
MUST BE HELD TO HAVE AGREED TO HONOR WACKENHUT'S COLLECTIVE-BARGAINING
CONTRACT. 

WE AGREE WITH THE COURT OF APPEALS THAT THE BOARD FAILED TO HEED THE
ADMONITIONS OF THE H. K. PORTER CASE.  PREVENTING INDUSTRIAL STRIFE IS
AN IMPORTANT AIM OF FEDERAL LABOR LEGISLATION, BUT CONGRESS HAS NOT
CHOSEN TO MAKE THE BARGAINING FREEDOM OF EMPLOYERS AND UNIONS TOTALLY
SUBORDINATE TO THIS GOAL.  WHEN A BARGAINING IMPASSE IS REACHED,
STRIKES AND LOCKOUTS MAY OCCUR.  THIS BARGAINING FREEDOM MEANS BOTH
THAT PARTIES NEED NOT MAKE ANY CONCESSIONS AS A RESULT OF GOVERNMENT
COMPULSION AND THAT THEY ARE FREE FROM HAVING CONTRACT PROVISIONS
IMPOSED UPON THEM AGAINST THEIR WILL.  HERE, BURNS HAD NOTICE OF THE
EXISTENCE OF THE WACKENHUT COLLECTIVE-BARGAINING CONTRACT, BUT IT DID
NOT CONSENT TO BE BOUND BY IT.  THE SOURCE OF ITS DUTY TO BARGAIN WITH
THE UNION IS NOT THE COLLECTIVE-BARGAINING CONTRACT BUT THE FACT THAT
IT VOLUNTARILY TOOK OVER A BARGAINING UNIT THAT WAS LARGELY INTACT AND
THAT HAD BEEN CERTIFIED WITHIN THE PAST YEAR.  NOTHING IN ITS ACTIONS,
HOWEVER, INDICATED THAT BURNS WAS ASSUMING THE OBLIGATIONS OF THE
CONTRACT, AND "ALLOWING THE BOARD TO COMPEL AGREEMENT WHEN THE PARTIES
THEMSELVES ARE UNABLE TO AGREE WOULD VIOLATE THE FUNDAMENTAL PREMISE ON
WHICH THE ACT IS BASED-- PRIVATE BARGAINING UNDER GOVERNMENTAL
SUPERVISION OF THE PROCEDURE ALONE, WITHOUT ANY OFFICIAL COMPULSION
OVER THE ACTUAL TERMS OF THE CONTRACT."  H. K. PORTER CO. V. NLRB, 397
U.S.,AT 108. 

WE ALSO AGREE WITH THE COURT OF APPEALS THAT HOLDING EITHER THE
UNION OR THE NEW EMPLOYER BOUND TO THE SUBSTANTIVE TERMS OF AN OLD
COLLECTIVE-BARGAINING CONTRACT MAY RESULT IN SERIOUS INEQUITIES.  A
POTENTIAL EMPLOYER MAY BE WILLING TO TAKE OVER A MORIBUND BUSINESS ONLY
IF HE CAN MAKE CHANGES IN CORPORATE STRUCTURE, COMPOSITION OF THE LABOR
FORCE, WORK LOCATION, TASK ASSIGNMENT, AND NATURE OF SUPERVISION. 
SADDLING SUCH AN EMPLOYER WITH THE TERMS AND CONDITIONS OF EMPLOYMENT
CONTAINED IN THE OLD COLLECTIVE-BARGAINING CONTRACT MAY MAKE THESE
CHANGES IMPOSSIBLE AND MAY DISCOURAGE AND INHIBIT THE TRANSFER OF
CAPITAL.  ON THE OTHER HAND, A UNION MAY HAVE MADE CONCESSIONS TO A
SMALL OR FAILING EMPLOYER THAT IT WOULD BE UNWILLING TO MAKE TO A LARGE
OR ECONOMICALLY SUCCESSFUL FIRM.  THE CONGRESSIONAL POLICY MANIFEST IN
THE ACT IS TO ENABLE THE PARTIES TO NEGOTIATE FOR ANY PROTECTION EITHER
DEEMS APPROPRIATE, BUT TO ALLOW THE BALANCE OF BARGAINING ADVANTAGE TO
BE SET BY ECONOMIC POWER REALITIES.  STRIFE IS BOUND TO OCCUR IF THE
CONCESSIONS THAT MUST BE HONORED DO NOT CORRESPOND TO THE RELATIVE
ECONOMIC STRENGTH OF THE PARTIES. 

THE BOARD'S POSITION WOULD ALSO RAISE NEW PROBLEMS, FOR THE
SUCCESSOR EMPLOYER WOULD BE CIRCUMSCRIBED IN EXACTLY THE SAME WAY AS
THE PREDECESSOR UNDER THE COLLECTIVE BARGAINING CONTRACT.  IT WOULD
SEEMINGLY FOLLOW THAT EMPLOYEES OF THE PREDECESSOR WOULD BE DEEMED
EMPLOYEES OF THE SUCCESSOR, DISCHARGEABLE ONLY IN ACCORDANCE WITH
PROVISIONS OF THE CONTRACT AND SUBJECT TO THE GRIEVANCE AND ARBITRATION
PROVISIONS THEREOF.  /9/  BURNS WOULD NOT HAVE BEEN FREE TO REPLACE
WACKENHUT'S GUARDS WITH ITS OWN EXCEPT AS THE CONTRACT PERMITTED. 
GIVEN THE CONTINUITY OF EMPLOYMENT RELATIONSHIP, THE PRE-EXISTING
CONTRACTS' PROVISIONS WITH RESPECT TO WAGES, SENIORITY RIGHTS, VACATION
PRIVILEGES, PENSION AND RETIREMENT FUND BENEFITS, JOB SECURITY
PROVISIONS, WORK ASSIGNMENTS AND THE LIKE WOULD DEVOLVE ON THE
SUCCESSOR.  NOR WOULD THE UNION COMMIT A SEC. 8(B)(3) UNFAIR LABOR
PRACTICE IF IT REFUSED TO BARGAIN FOR A MODIFICATION OF THE AGREEMENT
EFFECTIVE PRIOR TO THE EXPIRATION DATE OF THE AGREEMENT.  /10/  A
SUCCESSOR EMPLOYER MIGHT ALSO BE DEEMED TO HAVE INHERITED ITS
PREDECESSOR'S PRE-EXISTING CONTRACTUAL OBLIGATIONS TO THE UNION THAT
HAD ACCRUED UNDER PAST CONTRACTS AND THAT HAD NOT BEEN DISCHARGED WHEN
THE BUSINESS WAS TRANSFERRED.  "(A) SUCCESSOR MAY WELL ACQUIRE MORE
LIABILITIES AS A RESULT OF BURNS THAN APPEAR ON THE FACE OF A
CONTRACT."  /11/  FINALLY, A SUCCESSOR WILL BE BOUND TO OBSERVE THE
CONTRACT DESPITE GOOD-FAITH DOUBTS ABOUT THE UNION'S MAJORITY DURING
THE TIME THAT THE CONTRACT IS A BAR TO ANOTHER REPRESENTATION ELECTION,
RANCH-WAY, INC, 183 N.L.R.B.NO. 116(1970).  /12/  FOR THE ABOVE
REASONS, THE BOARD ITSELF HAS EXPRESSED DOUBTS AS TO THE GENERAL
APPLICABILITY OF ITS BURNS RULE.  /13/ 

IN MANY CASES, OF COURSE, SUCCESSOR EMPLOYERS WILL FIND IT
ADVANTAGEOUS NOT ONLY TO RECOGNIZE AND BARGAIN WITH THE UNION BUT ALSO
TO OBSERVE THE PRE-EXISTING CONTRACT RATHER THAN TO FACE UNCERTAINTY
AND TURMOIL.  ALSO, IN A VARIETY OF CIRCUMSTANCES INVOLVING A MERGER,
STOCK ACQUISITION, REORGANIZATION, OR ASSETS PURCHASE, THE BOARD MIGHT
PROPERLY FIND AS A MATTER OF FACT THAT THE SUCCESSOR HAD ASSUMED THE
OBLIGATIONS UNDER THE OLD CONTRACT.  CF. OILFIELD MAINTENANCE CO., 142
N.L.R.B. 1384(1963).  SUCH A DUTY DOES NOT, HOWEVER, ENSUE AS A MATTER
OF LAW FROM THE MERE FACT THAN AN EMPLOYER IS DOING THE SAME WORK IN
THE SAME PLACE WITH THE SAME EMPLOYEES AS HIS PREDECESSOR, AS THE BOARD
HAD RECOGNIZED UNTIL ITS DECISION IN THE INSTANT CASE.  SEE CASES CITED
SUPRA, AT 284.  WE ACCORDINGLY SET ASIDE THE BOARD'S FINDING OF A SEC.
8(A)(5) UNFAIR LABOR PRACTICE INSOFAR AS IT RESTED ON A CONCLUSION THAT
BURNS WAS REQUIRED TO BUT DID NOT HONOR THE COLLECTIVE-BARGAINING
CONTRACT EXECUTED BY WACKENHUT. 

        IV 

IT THEREFORE FOLLOWS THAT THE BOARD'S ORDER REQUIRING BURNS TO "GIVE
RETROACTIVE EFFECT TO ALL THE CLAUSES OF SAID (WACKENHUT) CONTRACT AND,
WITH INTEREST OF 6 PERCENT, MAKE WHOLE ITS EMPLOYEES FOR ANY LOSSES
SUFFERED BY REASON OF RESPONDENT'S (BURNS') REFUSAL TO HONOR, ADOPT AND
ENFORCE SAID CONTRACT" MUST BE SET ASIDE.  /14/  WE NOTE THAT THE
REGIONAL DIRECTOR'S CHARGE INSTITUTING THIS CASE ASSERTED THAT "(ON OR
ABOUT JULY 1, 1967, RESPONDENT (BURNS) UNILATERALLY CHANGED EXISTING
WAGE RATES, HOURS OF EMPLOYMENT, OVERTIME WAGE RATES, DIFFERENTIALS FOR
SWING SHIFT AND GRAVEYARD SHIFT, AND OTHER TERMS AND CONDITIONS OF
EMPLOYMENT OF THE EMPLOYEES IN THE APPROPRIATE UNIT . . . ,"  APP. 113,
AND THAT THE BOARD'S OPINION STATED THAT "(THE OBLIGATION TO BARGAIN
IMPOSED ON A SUCCESSOR-EMPLOYER INCLUDES THE NEGATIVE INJUNCTION TO
REFRAIN FROM UNILATERALLY CHANGING WAGES AND OTHER BENEFITS ESTABLISHED
BY A PRIOR COLLECTIVE-BARGAINING AGREEMENT EVEN THOUGH THAT AGREEMENT
HAD EXPIRED.  IN THIS RESPECT, THE SUCCESSOR-EMPLOYER'S OBLIGATIONS ARE
THE SAME AS THOSE IMPOSED UPON EMPLOYERS GENERALLY DURING THE PERIOD
BETWEEN COLLECTIVE-BARGAINING AGREEMENTS."  APP. 8-9.  THIS STATEMENT
BY THE BOARD IS CONSISTENT WITH ITS PRIOR AND SUBSEQUENT CASES THAT
HOLD THAT WHETHER OR NOT A SUCCESSOR EMPLOYER IS BOUND BY ITS
PREDECESSOR'S CONTRACT, IT MUST NOT INSTITUTE TERMS AND CONDITIONS OF
EMPLOYMENT DIFFERENT FROM THOSE PROVIDED IN ITS PREDECESSOR'S CONTRACT,
AT LEAST WITHOUT FIRST BARGAINING WITH THE EMPLOYEES' REPRESENTATIVE. 
OVERNITE TRANSPORTATION CO., 157 N.L.R.B. 1185(1966), ENFORCED SUB NOM.
OVERNITE TRANSPORTATION CO. V. NLRB, 372 F.2D 765(CA4), CERT. DENIED,
389 U.S. 838(1967); VALLEYDALE PACKERS, INC., 162 N.L.R.B. 1486(1967),
ENFORCED SUB NOM. NLRB V. VALLEYDALE PACKERS, INC., 402 F.2D 768(CA5
1968); MICHAUD BUS LINES, INC., 171 N.L.R.B. 193 (1968); EMERALD
MAINTENANCE, INC., 188 N.L.R.B.NO. 139(1971).  THUS, IF BURNS, WITHOUT
BARGAINING TO IMPASSE WITH THE UNION, HAD PAID ITS EMPLOYEES ON AND
AFTER JULY 1 AT A RATE LOWER THAN WACKENHUT HAD PAID UNDER ITS
CONTRACT, OR OTHERWISE PROVIDED TERMS AND CONDITIONS OF EMPLOYMENT
DIFFERENT FROM THOSE PROVIDED IN THE WACKENHUT COLLECTIVE-BARGAINING
AGREEMENT, UNDER THE BOARD'S VIEW, BURNS WOULD HAVE COMMITTED A SEC.
8(A)(5) UNFAIR LABOR PRACTICE AND WOULD HAVE BEEN SUBJECT TO AN ORDER
TO RESTORE TO EMPLOYEES WHAT THEY HAD LOST BY THIS SO-CALLED UNILATERAL
CHANGE.  SEE OVERNITE TRANSPORTATION CO., SUPRA; EMERALD MAINTENANCE,
INC., SUPRA.     ALTHOUGH BURNS HAD AN OBLIGATION TO BARGAIN WITH THE
UNION CONCERNING WAGES AND OTHER CONDITIONS OF EMPLOYMENT WHEN THE
UNION REQUESTED IT TO DO SO, THIS CASE IS NOT LIKE A SEC. 8(A)(5)
VIOLATION WHERE AN EMPLOYER UNILATERALLY CHANGES A CONDITION OF
EMPLOYMENT WITHOUT CONSULTING A BARGAINING REPRESENTATIVE.  IT IS
DIFFICULT TO UNDERSTAND HOW BURNS COULD BE SAID TO HAVE CHANGED
UNILATERALLY ANY PRE-EXISTING TERM OR CONDITION OR EMPLOYMENT WITHOUT
BARGAINING WHEN IT HAD NO PREVIOUS RELATIONSHIP WHATSOVER TO THE
BARGAINING UNIT AND, PRIOR TO JULY 1, NO OUTSTANDING TERMS AND
CONDITIONS OF EMPLOYMENT FROM WHICH A CHANGE COULD BE INFERRED.  THE
TERMS ON WHICH BURNS HIRED EMPLOYEES FOR SERVICE AFTER JULY 1 MAY HAVE
DIFFERED FROM THE TERMS EXTENDED BY WACKENHUT AND REQUIRED BY THE
COLLECTIVE-BARGAINING CONTRACT, BUT IT DOES NOT FOLLOW THAT BURNS
CHANGES ITS TERMS AND CONDITIONS OF EMPLOYMENT WHEN IT SPECIFIED THE
INITIAL BASIS ON WHICH EMPLOYEES WERE HIRED ON JULY 1. 

ALTHOUGH A SUCCESSOR EMPLOYER IS ORDINARILY FREE TO SET INITIAL
TERMS ON WHICH IT WILL HIRE THE EMPLOYEES OF A PREDECESSOR, THERE WILL
BE INSTANCES IN WHICH IT IS PERFECTLY CLEAR THAT THE NEW EMPLOYER PLANS
TO RETAIN ALL OF THE EMPLOYEES IN THE UNIT AND IN WHICH IT WAS BE
APPROPRIATE TO HAVE HIM INITIALLY CONSULT WITH THE EMPLOYEES BARGAINING
REPRESENTATIVE BEFORE HE FIXES TERMS.  IN OTHER SITUATIONS, HOWEVER, IT
MAY NOT BE CLEAR UNTIL THE SUCCESSOR EMPLOYER HAS HIRED HIS FULL
COMPLEMENT OF EMPLOYEES THAT HE HAS A DUTY TO BARGAIN WITH A UNION,
SINCE IT WILL NOT BE EVIDENT UNTIL THEN THAT THE BARGAINING
REPRESENTATIVE REPRESENTS A MAJORITY OF THE EMPLOYEES IN THE UNIT AS
REQUIRED BY SEC. 9(A) OF THE ACT, 29 U.S.C. 159(A).  HERE, FOR EXAMPLE,
BURNS' OBLIGATION TO BARGAIN WITH THE UNION DID NOT MATURE UNTIL IT HAD
SELECTED ITS FORCE OF GUARDS LATE IN JUNE.  THE BOARD QUITE PROPERLY
FOUND THAT BURNS REFUSED TO BARGAIN ON JULY 12 WHEN IT REJECTED THE
OVERTURES OF THE UNION.  IT IS TRUE THAT THE WAGES IT PAID WHEN IT
BEGAN PROTECTING THE LOCKHEED PLANT ON JULY 1 DIFFERED FORM THOSE
SPECIFIED IN THE WACKENHUT COLLECTIVE-BARGAINING AGREEMENT, BUT THERE
IS NO EVIDENCE THAT BURNS EVER UNILATERALLY CHANGED THE TERMS AND
CONDITIONS OF EMPLOYMENT IT HAD OFFERED TO POTENTIAL EMPLOYEES IN JUNE
AFTER ITS OBLIGATION TO BARGAIN WITH THE UNION BECAME APPARENT.  IF THE
UNION HAD MADE A REQUEST TO BARGAIN AFTER BURNS HAD COMPLETED ITS
HIRING AND IF BURNS HAD NEGOTIATED IN GOOD FAITH AND HAD MADE OFFERS TO
THE UNION WHICH THE UNION REJECTED, BURNS COULD HAVE UNILATERALLY
INITIATED SUCH PROPOSALS AS THE OPENING TERMS AND CONDITIONS OF
EMPLOYMENT ON JULY 1 WITHOUT COMMITTING AN UNFAIR LABOR PRACTICE.  CF.
NLRB V. KATZ, 369 U.S. 736, 745 N. 12(1962); NLRB V. FITZGERALD MILLS
CORP., 313 F.2D 260, 272-273(CA2) CERT. DENIED, 375 U.S. 834(1963);
NLRB V. SOUTHERN COACH & BODY CO., 336 F.2D 214, 217(CA5 1964).  THE
BOARD'S ORDER REQUIRING BURNS TO MAKE WHOLE ITS EMPLOYEES FOR ANY
LOSSES SUFFERED BY REASON OF BURNS' REFUSAL TO HONOR AND ENFORCE THE
CONTRACT, CANNOT THEREFORE BE SUSTAINED ON THE GROUND THAT BURNS
UNILATERALLY CHANGED EXISTING TERMS AND CONDITIONS OF EMPLOYMENT,
THEREBY COMMITTING AN UNFAIR LABOR PRACTICE WHICH REQUIRED MONETARY
RESTITUTION IN THESE CIRCUMSTANCES. 

           AFFIRMED. 

/0/  TOGETHER WITH NO. 71-198, BURNS INTERNATIONAL SECURITY
SERVICES, INC. V. NATIONAL LABOR RELATIONS BOARD ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 

/1/  A BURNS EXECUTIVE LATER ADMITTED IN THE UNFAIR-LABOR-PRACTICE
PROCEEDING THAT BURNS WAS AWARE OF THE UNION'S STATUS, THE UNIT
CERTIFICATION, AND THE COLLECTIVE-BARGAINING CONTRACT AFTER THE MAY 15
MEETING.  APP. 105. 

/2/  IN REGARD TO THIS LATTER FINDING, THE BOARD STATED: 

"THE QUESTION BEFORE US THUS NARROWS TO WHETHER THE NATIONAL LABOR
POLICY EMBODIED IN THE ACT REQUIRES THE SUCCESSOR-EMPLOYER TO TAKE OVER
AND HONOR A COLLECTIVE-BARGAINING AGREEMENT NEGOTIATED ON BEHALF OF THE
EMPLOYING ENTERPRISE BY THE PREDECESSOR.  WE HOLD THAT, ABSENT UNUSUAL
CIRCUMSTANCES, THE ACT IMPOSES SUCH AN OBLIGATION. 

   .          .          .          . "WE FIND, THEREFORE, THAT
BURNS IS BOUND TO THAT CONTRACT AS IF IT WERE A SIGNATORY THERETO, AND
THAT ITS FAILURE TO MAINTAIN THE CONTRACT IN EFFECT IS VIOLATIVE OF

/3/  CF. SEC. 9(C)(3) OF THE NLRA, 29 U.S.C. 159(C)(3), WHICH
PROVIDES THAT "(NO ELECTION SHALL BE DIRECTED IN ANY BARGAINING UNIT OR
ANY SUBDIVISION WITHIN WHICH IN THE PRECEDING TWELVE-MONTH PERIOD, A
VALID ELECTION SHALL HAVE BEEN HELD."  SEE NLRB V. GISSEL PACKING CO.,
395 U.S. 575, 599 N. 14(1969). 

WHERE AN EMPLOYER REMAINS THE SAME, A BOARD CERTIFICATION CARRIES
WITH IT AN ALMOST CONCLUSIVE PRESUMPTION THAT THE MAJORITY
REPRESENTATIVE STATUS OF THE UNION CONTINUES FOR A REASONABLE TIME,
USUALLY A YEAR.  SEE BROOKS V. NLRB, 348 U.S. 96, 98-99(1954).  AFTER
THIS PERIOD, THERE IS A REBUTTABLE PRESUMPTION OF MAJORITY
REPRESENTATION.  CELANESE CORP. OF AMERICA, 95 N.L.R.B. 664,
672(1951).  IF THERE IS A CHANGE OF EMPLOYERS, HOWEVER, AND AN ALMOST
COMPLETE TURNOVER OF EMPLOYEES, THE CERTIFICATION MAY NOT BAR A
CHALLENGE IF THE SUCCESSOR EMPLOYER IS NOT BOUND BY THE COLLECTIVE
BARGAINING CONTRACT, PARTICULARLY IF THE NEW EMPLOYEES ARE REPRESENTED
BY ANOTHER UNION OR IF THE OLD UNIT IS RULED AN ACCRETION TO ANOTHER
UNIT.  CF. MCGUIRE V. HUMBLE OIL & REFINING CO., 355 F.2D 352(CA2),
CERT. DENIED, 384 U.S. 988(1966).  SEE N. 5, INFRA. 

/4/  THE COURT OF APPEALS WAS UNIMPRESSED WITH THE ASSERTED
DIFFERENCES BETWEEN BURNS' AND WACKENHUT'S OPERATIONS:  "ALL OF THE
IMPORTANT FACTORS WHICH THE BOARD HAS USED AND THE COURTS HAVE APPROVED
ARE PRESENT IN THE INSTANT CASE:  'CONTINUATION OF THE SAME TYPES OF
PRODUCT LINES, DEPARTMENTAL ORGANIZATION, EMPLOYEE IDENTITY AND JOB
FUNCTIONS.'  . . . BOTH BURNS AND WACKENHUT ARE NATIONWIDE
ORGANIZATIONS; BOTH PERFORMED THE IDENTICAL SERVICES AT THE SAME
FACILITY; ALTHOUGH BURNS USED ITS OWN SUPERVISORS, THEIR FUNCTIONS AND
RESPONSIBILITIES WERE SIMILAR TO THOSE PERFORMED BY THEIR PREDECESSORS;
AND FINALLY, AND PERHAPS MOST SIGNIFICANTLY, BURNS COMMENCED
PERFORMANCE OF THE CONTRACT WITH 27 FORMER WACKENHUT EMPLOYEES OUT OF
ITS TOTAL COMPLEMENT OF 42."  441 F.2D 911, 915(1971).  ALTHOUGH THE
LABOR POLICIES OF THE TWO COMPANIES DIFFERED SOMEWHAT, THE BOARD'S
DETERMINATION THAT THE BARGAINING UNIT REMAINED APPROPRIATE AFTER THE
CHANGEOVER MEANT THAT BURNS WOULD FACE ESSENTIALLY THE SAME LABOR
RELATIONS ENVIRONMENT AS WACKENHUT:  IT WOULD CONFRONT THE SAME UNION
REPRESENTING MOST OF THE SAME EMPLOYEES IN THE SAME UNIT. 

/5/  THE BOARD HAS NEVER HELD THAT THE NATIONAL LABOR RELATIONS ACT
ITSELF REQUIRES THAT AN EMPLOYER WHO SUBMITS THE WINNING BID FOR A
SERVICE CONTRACT OR WHO PURCHASES THE ASSETS OF A BUSINESS BE OBLIGATED
TO HIRE ALL OF THE EMPLOYEES OF THE PREDECESSOR THOUGH IT IS POSSIBLE
THAT SUCH AN OBLIGATION MIGHT BE ASSUMED BY THE EMPLOYER.  BUT CF.
CHEMROCK CORP., 151 N.L.R.B. 1074(1964).  HOWEVER, AN EMPLOYER WHO
DECLINES TO HIRE EMPLOYEES SOLELY BECAUSE THEY ARE MEMBERS OF A UNION
COMMITS A SEC. 8(A)(3) UNFAIR LABOR PRACTICE.  SEE K.B. & J. YOUNG'S
SUPER MARKETS, INC. V. NLRB, 377 F.2D 463(CA9), CERT. DENIED, 389 U.S.
841(1967); NLRB V. NEW ENGLAND TANK INDUSTRIES, INC., 302 F.2D
273(CA1), CERT. DENIED, 371 U.S. 875(1962); PIASECKI AIRCRAFT CORP. V.
NLRB, 280 F.2D 575(CA3 1960), CERT. DENIED, 364 U.S. 933(1961); TRI
STATE MAINTENANCE CORP., 167 N.L.R.B. 933(1967), ENFORCED WITH MOD. SUB
NOM. TRI STATE MAINTENANCE CORP. V. NLRB, 132 U.S.APP.D.C. 368, 408
F.2D 171(1968).  FURTHER RESTRICTIONS ON THE SUCCESSOR EMPLOYER'S
CHOICE OF EMPLOYEES WOULD SEEM TO FOLLOW FROM THE BOARD'S INSTANT
DECISION THAT THE EMPLOYER MUST HONOR THE PRE-EXISTING COLLECTIVE
BARGAINING CONTRACT.  SEE INFRA, AT 288-290. 

/6/  "Q.  BUT (COUNSEL FOR THE UNION), WHEN HE ARGUED, SAID THAT
EVEN IF (BURNS) HADN'T TAKEN OVER ANY (EMPLOYEES OF WACKENHUT), EVEN IF
THEY HADN'T TAKEN OVER A SINGLE EMPLOYEE, THE LEGAL SITUATION WOULD BE
THE SAME. 

"MR. COME (FOR THE NLRB).  WE DO NOT GO THAT FAR.  WE DON'T THINK
THAT YOU HAVE TO GO THAT FAR IN . . . 

"Q.  DO YOU THINK IT HAS TO BE A MAJORITY? 

"MR. COME.  I WOULDN'T SAY THAT IT HAS TO BE A MAJORITY, I THINK IT
HAS TO BE A SUBSTANTIAL NUMBER.  IT HAS TO BE ENOUGH TO GIVE YOU A
CONTINUITY OF EMPLOYMENT CONDITIONS IN THE BARGAINING UNIT."  TR. OF
ORAL ARG. 64-65. 

/7/  TWO EXCEPTIONS TO THIS GENERAL RELUCTANCE TO INTERFERE WITH
FREE COLLECTIVE BARGAINING ARE THE IMPOSITION OF COMPULSORY ARBITRATION
DURING WARTIME, EXEC. ORDER NO. 9017 (1942), AND, ON OCCASION, IN THE
RAILROAD INDUSTRY, 77 STAT. 132, 81 STAT. 122.  CONGRESS HAS
CONSISTENTLY REJECTED COMPULSORY ARBITRATION EVEN AS A REMEDY FOR
"NATIONAL EMERGENCY" DISPUTES, HOWEVER.  SEE GOLDBERG, THE LABOR LAWS
OBLIGATIONS OF A SUCCESSOR EMPLOYER, 63 NW.U.L.REV.  735, 742
743(1969). 

/8/  WHEN THE UNION THAT HAS SIGNED A COLLECTIVE-BARGAINING CONTRACT
IS DECERTIFIED, THE SUCCEEDING UNION CERTIFIED BY THE BOARD IS NOT
BOUND BY THE PRIOR CONTRACT, NEED NOT ADMINISTER IT, AND MAY DEMAND
NEGOTIATIONS FOR A NEW CONTRACT, EVEN IF THE TERMS OF THE OLD CONTRACT
HAVE NOT YET EXPIRED.  AMERICAN SEATING CO., 106 N.L.R.B. 250(1953);
FARMBEST, INC., 154 N.L.R.B. 1421, 1453-1454(1965), ENF.  WITH MOD. SUB
NOM. FARMBEST, INC. V. NLRB, 370 F.2D 1015(CA8 1967); SEE ALSO MODINE
MFG. CO. V. INTERNATIONAL ASSOCIATION OF MACHINISTS, 216 F.2D 326(CA6
1954).  THE BOARD HAS DECLINED TO OVERTURN ITS "LONG STANDING" AMERICAN
SEATING RULE AFTER BURNS.  GENERAL DYNAMICS CORP., 184 N.L.R.B.NO.
71(1970). 

/9/  THE VAST MAJORITY OF COLLECTIVE-BARGAINING AGREEMENTS SPECIFY
THE PROCEDURES TO BE USED IN CHOOSING EMPLOYEES FOR AVAILABLE JOBS, AND
APPROXIMATELY 92% OF ALL SUCH CONTRACTS PLACE SOME LIMITATIONS ON THE
RIGHT TO DISCHARGE.  COLLECTIVE BARGAINING NEGOTIATIONS AND CONTRACTS
SECS. 40:1, 60:11(BNA 1971).  UNDER THE BOARDS THEORY, IF A SUCCESSOR
REFUSED TO HIRE OR FIRED ANY OF THE PREDECESSOR'S EMPLOYEES WITHOUT
GOING THROUGH APPLICABLE GRIEVANCE PROCEDURES, IT MIGHT BE GUILTY OF A
SEC. 8(A)(5) REFUSAL TO BARGAIN.  SEE NLRB V. STRONG, 393 U.S. 357,
359(1969); NLRB V. HUTTIG SASH & DOOR CO., 377 F.2D 964, 968-969(CA8
1967). 

/10/  SECTION 8(D) OF THE ACT PROVIDES, IN PART: 

"(WHERE THERE IS IN EFFECT A COLLECTIVE-BARGAINING CONTRACT COVERING
EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE, THE DUTY TO BARGAIN
COLLECTIVELY SHALL ALSO MEAN THAT NO PARTY TO SUCH CONTRACT SHALL
TERMINATE OR MODIFY SUCH CONTRACT, UNLESS THE PARTY DESIRING SUCH
TERMINATION OR MODIFICATION-- 

"(1) SERVES A WRITTEN NOTICE UPON THE OTHER PARTY TO THE CONTRACT OF
THE PROPOSED TERMINATION OR MODIFICATION SIXTY DAYS PRIOR TO THE
EXPIRATION DATE THEREOF, OR IN THE EVENT SUCH CONTRACT CONTAINS NO
EXPIRATION DATE, SIXTY DAYS PRIOR TO THE TIME IT IS PROPOSED TO MAKE
SUCH TERMINATION OR MODIFICATION; 

"(2) OFFERS TO MEET AND CONFER WITH THE OTHER PARTY FOR THE PURPOSE
OF NEGOTIATING A NEW CONTRACT OR A CONTRACT CONTAINING THE PROPOSED
MODIFICATIONS; 

"(3) NOTIFIES THE FEDERAL MEDIATION AND CONCILIATION SERVICE WITHIN
THIRTY DAYS AFTER SUCH NOTICE OF THE EXISTENCE OF A DISPUTE, AND
SIMULTANEOUSLY THEREWITH NOTIFIES ANY STATE OR TERRITORIAL AGENCY
ESTABLISHED TO MEDIATE AND CONCILIATE DISPUTES WITHIN THE STATE OR
TERRITORY WHERE THE DISPUTE OCCURRED, PROVIDED NO AGREEMENT HAS BEEN
REACHED BY THAT TIME; AND 

"(4) CONTINUES IN FULL FORCE AND EFFECT, WITHOUT RESORTING TO STRIKE
OR LOCK-OUT, ALL THE TERMS AND CONDITIONS OF THE EXISTING CONTRACT FOR
A PERIOD OF SIXTY DAYS AFTER SUCH NOTICE IS GIVEN OR UNTIL THE
EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS LATER: 

"THE DUTIES IMPOSED UPON EMPLOYERS, EMPLOYEES, AND LABOR
ORGANIZATIONS BY PARAGRAPHS (2)-(4) OF THIS SUBSECTION . . . SHALL NOT
BE CONSTRUED AS REQUIRING EITHER PARTY TO DISCUSS OR AGREE TO ANY
MODIFICATION OF THE TERMS AND CONDITIONS CONTAINED IN A CONTRACT FOR A
FIXED PERIOD, IF SUCH MODIFICATION IS TO BECOME EFFECTIVE BEFORE SUCH
TERMS AND CONDITIONS CAN BE REOPENED UNDER THE PROVISIONS OF THE
CONTRACT."  29 U.S.C. 158(D). 

/11/  DOPPELT, SUCCESSOR COMPANIES:  THE NLRB LIMITS THE OPTIONS--
AND RAISES SOME PROBLEMS, 20 DEPAUL L.REV.  176, 191(1971). 

/12/  THE BOARD IMPOSES THIS CONTRACT-BAR RULE FOR THE TERM OF A
COLLECTIVE BARGAINING OF "REASONABLE DURATION," A PERIOD THE BOARD NOW
DEFINES AS THREE YEARS.  GENERAL CABLE CORP., 139 N.L.R.B. 1123(1962). 
ALSO DURING THIS TIME, AN EMPLOYER CANNOT USE DOUBT ABOUT A UNION'S
MAJORITY AS A DEFENSE TO A REFUSAL-TO-BARGAIN CHARGE.  OILFIELD
MAINTENANCE CO., 142 N.L.R.B. 1384, 1387(1963); HEXTON FURNITURE CO.,
111 N.L.R.B. 342(1955).  PRIOR TO BURNS, THE BOARD HAD HELD THAT A
SUCCESSOR WAS BARRED BY THE CONTRACT OF THE PREDECESSOR FROM REQUESTING
A REPRESENTATION ELECTION DURING THE TERM OF THE CONTRACT ONLY IF IT
HAD ASSUMED THE CONTRACT.  JOLLY GIANT LUMBER CO., 114 N.L.R.B.
413(1955); GENERAL EXTRUSION CO., 121 N.L.R.B. 1165(1958); MV
DOMINATOR, 162 N.L.R.B. 1514(1967).  MOREOVER, SUCH ASSUMPTION HAD TO
BE BY AN EXPRESS WRITTEN AGREEMENT.  AMERICAN CONCRETE PIPE OF HAWAII,
INC., 128 N.L.R.B. 720(1960).  THE BOARD HAD ALSO PERMITTED A NON
ASSUMING SUCCESSOR TO RAISE A GOOD-FAITH DOUBT AS TO THE UNION'S
MAJORITY AS A DEFENSE TO A REFUSAL-TO-BARGAIN CHARGE DURING THE TERM OF
THE OLD CONTRACT.  RANDOLPH RUBBER CO., 152 N.L.R.B. 496(1965);
MITCHELL STANDARD CORP., 140 N.L.R.B. 496(1963).     /13/  EMERALD
MAINTENANCE, INC., 188 N.L.R.B.NO. 139(1971).  EMERALD INVOLVED A
CIVILIAN CONTRACTOR WHO UNDERTOOK TO PROVIDE CERTAIN MAINTENANCE
SERVICES AT AN AIR FORCE BASE.  DURING THE PRECEDING YEAR, THE SAME
SERVICES HAD BEEN PERFORMED BY TWO OTHER COMPANIES WHOSE EMPLOYEES WERE
REPRESENTED BY A UNION THAT HAD NEGOTIATED COLLECTIVE-BARGAINING
AGREEMENTS THAT HAD NOT YET EXPIRED.  THE EMPLOYER PERFORMED THE WORK
WITH SUBSTANTIALLY THE SAME EMPLOYEE COMPLEMENT AS HAD ITS
PREDECESSORS.  THE BOARD HELD THAT THE EMPLOYER HAD A DUTY TO RECOGNIZE
AND BARGAIN WITH THE UNION BUT COULD NOT AGREE WITH THE TRIAL EXAMINER
THAT THE EMPLOYER WAS BOUND BY THE PROVISIONS OF THE CONTRACT,
EMPHASIZING IN THIS RESPECT THE IMPACT OF THE SERVICE CONTRACT ACT OF
1965, 79 STAT. 1034.  THE CASE WAS CONSIDERED AS PRESENTING UNUSUAL
CIRCUMSTANCES JUSTIFYING AN EXCEPTION TO THE BURNS RULE; THE BOARD
NOTED THAT "(THIS CASE SUGGESTS THE HAZARDS OF ENFORCING THE CONTRACTS
OF ONE EMPLOYER AGAINST A SUCCESSOR WHERE ANNUAL REBIDDING NORMALLY
PRODUCES ANNUAL CHANGES IN CONTRACTOR IDENTITY.  THESE CIRCUMSTANCES
MIGHT ENCOURAGE LESS ARM'S-LENGTH COLLECTIVE BARGAINING WHENEVER THE
EMPLOYER HAD REASON TO EXPECT THAT IT WOULD NOT BE AWARDED THE NEXT
SUCCEEDING ANNUAL SERVICE CONTRACT."  AN AMICUS STRONGLY CONTENDS THAT
THE EMERALD RULE IS INCONSISTENT WITH BURNS AND IS BASED ON A
MISREADING OF THE LEGISLATIVE HISTORY OF THE SERVICE CONTRACT ACT OF
1965.  BRIEF FOR AFL-CIO AS AMICUS CURIAE 23 N. 2. 

/14/  IN ITS ENTIRETY, THE BOARD'S ORDER REQUIRED BURNS TO: 

"1.  CEASE AND DESIST FROM: 

"(A) REFUSING TO BARGAIN COLLECTIVELY, UPON REQUEST, WITH THE UNION
AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES IN THE
ABOVE-DESCRIBED UNIT. 

"(B) REFUSING TO ADOPT, HONOR AND ENFORCE ITS CONTRACT WITH THE
UNION, AS SUCCESSOR OF WACKENHUT. 

"(C) ASSISTING OR RECOGNIZING AFG AS THE REPRESENTATIVE OF ITS
EMPLOYEES FOR THE PURPOSES OF COLLECTIVE BARGAINING, UNLESS AND UNTIL
SAID LABOR ORGANIZATION SHALL HAVE BEEN CERTIFIED AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF SAID EMPLOYEES IN AN APPROPRIATE UNIT. 

"(D) INTERFERING WITH REPRESENTATION OF ITS EMPLOYEES THROUGH LABOR
ORGANIZATIONS OF THEIR OWN CHOOSING. 

"(E) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS TO JOIN OR
ASSIST THE UNION OR OTHERWISE ENGAGE IN ACTIVITIES PROTECTED BY THE
ACT. 

"2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH IS NECESSARY TO
EFFECTUATE THE POLICIES OF THE ACT: 

"(A) WITHDRAW AND WITHHOLD RECOGNITION FROM AFG UNTIL OR UNLESS IT
IS CERTIFIED AS BARGAINING REPRESENTATIVE OF RESPONDENT'S EMPLOYEES IN
AN APPROPRIATE UNIT. 

"(B) BARGAIN COLLECTIVELY, UPON REQUEST, WITH THE UNION AND, IF ANY
UNDERSTANDING IS REACHED, EMBODY SUCH UNDERSTANDING IN A SIGNED
AGREEMENT. 

"(C) HONOR, ADOPT AND ENFORCE THE CONTRACT BETWEEN RESPONDENT, AS
SUCCESSOR TO WACKENHUT, AND THE UNION AND GIVE RETROACTIVE EFFECT TO
ALL THE CLAUSES OF SAID CONTRACT AND, WITH INTEREST OF 6 PERCENT, MAKE
WHOLE ITS EMPLOYEES FOR ANY LOSSES SUFFERED BY REASON OF RESPONDENT'S
REFUSAL TO HONOR, ADOPT AND ENFORCE SAID CONTRACT. 

"(D) POST AT ITS LOCKHEED, ONTARIO, CALIFORNIA, OPERATIONS COPIES OF
THE NOTICE ATTACHED HERETO AS 'APPENDIX.'  COPIES OF SAID NOTICE, TO BE
FURNISHED BY THE REGIONAL DIRECTOR FOR REGION 31, SHALL AFTER BEING
SIGNED BY RESPONDENT'S AUTHORIZED REPRESENTATIVE, BE POSTED BY IT
IMMEDIATELY UPON RECEIPT THEREOF AND BE MAINTAINED BY IT FOR A PERIOD
OF 60 CONSECUTIVE DAYS IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  REASONABLE STEPS
SHALL BE TAKEN TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR
COVERED BY ANY OTHER MATERIAL. 

"(E) NOTIFY SAID REGIONAL DIRECTOR, IN WRITING, WITHIN 20 DAYS FROM
THE DATE OF THE RECEIPT OF THIS RECOMMENDED ORDER WHAT STEPS RESPONDENT
HAS TAKEN TO COMPLY HEREWITH." 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN, AND MR. JUSTICE POWELL JOIN, CONCURRING IN NO. 71-123 AND
DISSENTING IN NO. 71-198. 

ALTHOUGH THE COURT STUDIOUSLY AVOIDS USING THE TERM "SUCCESSORSHIP"
IN CONCLUDING THAT BURNS DID HAVE A STATUTORY OBLIGATION TO BARGAIN
WITH THE UNION, IT AFFIRMS THE CONCLUSIONS OF THE BOARD AND THE COURT
OF APPEALS TO THAT EFFECT WHICH WERE BASED ENTIRELY ON THE
SUCCESSORSHIP DOCTRINE.  BECAUSE I BELIEVE THAT THE BOARD AND THE COURT
OF APPEALS STRETCHED THAT CONCEPT BEYOND THE LIMITS OF ITS PROPER
APPLICATION, I WOULD ENFORCE NEITHER THE BOARD'S BARGAINING ORDER NOR
ITS ORDER IMPOSING UPON BURNS THE TERMS OF THE CONTRACT BETWEEN THE
UNION AND WACKENHUT.  I THEREFORE CONCUR IN NO. 71-123 AND DISSENT IN
NO. 71-198. 

THE NATIONAL LABOR RELATIONS ACT IMPOSES UPON AN EMPLOYER THE
OBLIGATION "TO . . . BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES.  . . . " 29 U.S.C. 158(A)(5).  IT ALSO DEFINES THOSE
REPRESENTATIVES, IN SEC. 159(A), AS "(REPRESENTATIVES DESIGNATED OR
SELECTED FOR THE PURPOSES OF COLLECTIVE BARGAINING BY THE MAJORITY OF
THE EMPLOYEES IN A UNIT APPROPRIATE FOR SUCH PURPOSES.  . . . " THE
UNION MUST ESTABLISH ITS STATUS AS A MAJORITY REPRESENTATIVE EITHER BY
ONE OF THE METHODS DISCUSSED IN NLRB V. GISSEL PACKING CO., 395 U.S.
575(1969), OR BECAUSE ITS CERTIFICATION AS A REPRESENTATIVE OF THE
EMPLOYEES OF ANOTHER EMPLOYER BINDS BURNS AS A "SUCCESSOR." 

THE COURT CONCLUDES THAT BECAUSE THE TRIAL EXAMINER AND THE BOARD
FOUND THE LOCKHEED FACILITY TO BE AN APPROPRIATE BARGAINING UNIT FOR
BURNS' EMPLOYEES, AND BECAUSE BURNS HIRED A MAJORITY OF WACKENHUT'S
PREVIOUS EMPLOYEES WHO HAD WORKED AT THAT FACILITY, BURNS SHOULD HAVE
BARGAINED WITH THE UNION, EVEN THOUGH THE UNION NEVER MADE ANY SHOWING
TO BURNS OF MAJORITY REPRESENTATION.  THERE IS MORE THAN ONE DIFFICULTY
WITH THIS ANALYSIS. 

FIRST, IT IS BY NO MEANS MATHEMATICALLY DEMONSTRABLE THAT THE UNION
WAS THE CHOICE OF A MAJORITY OF THE 42 EMPLOYEES WITH WHICH BURNS BEGAN
THE PERFORMANCE OF ITS CONTRACT WITH LOCKHEED.  TRUE, 27 OF THE 42 HAD
BEEN REPRESENTED BY THE UNION WHEN THEY WERE EMPLOYEES OF WACKENHUT,
BUT THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE THAT ALL 27 OF
THESE EMPLOYEES CHOSE THE UNION AS THEIR BARGAINING AGENT EVEN AT THE
TIME OF NEGOTIATIONS WITH WACKENHUT.  THERE IS OBVIOUSLY NO EVIDENCE
WHATEVER THAT THE REMAINING 15 EMPLOYEES OF BURNS, WHO HAD NEVER BEEN
EMPLOYED BY WACKENHUT, HAD EVER EXPRESSED THEIR VIEWS ONE WAY OR THE
OTHER ABOUT THE UNION AS A BARGAINING REPRESENTATIVE.  IT MAY BE THAT,
IF ASKED, ALL WOULD HAVE DESIGNATED THE UNION.  BUT THEY WERE NEVER
ASKED.  INSTEAD, THE TRIAL EXAMINER CONCLUDED THAT BECAUSE BURNS WAS A
"SUCCESSOR" EMPLOYER TO WACKENHUT, IT WAS OBLIGATED BY THAT FACT ALONE
TO BARGAIN WITH THE UNION. 

THE SECOND PROBLEM WITH THE COURT'S REASONING IS THAT IT RELIES ON
THE BOARD'S APPROVAL OF THE LOCKHEED PLANT AS AN APPROPRIATE UNIT TO
SUPPORT ITS CONCLUSION THAT BURNS MUST BARGAIN WITH THE UNION.  WHILE
IT IS TRUE, AS THE COURT NOTES, THAT THE TRIAL EXAMINER AND THE BOARD
FOUND THE LOCKHEED FACILITY TO BE AN APPROPRIATE BARGAINING UNIT FOR
BURNS' EMPLOYEES, IT IS EQUALLY TRUE THAT THE TRIAL EXAMINER'S FINDING
TO THIS EFFECT WAS CLEARLY DEPENDENT UPON THE PREVIOUS STIPULATION
BETWEEN WACKENHUT AND THE UNION.  /1/  ONE OF THE REASONS ASSERTED BY
BURNS FOR DECLINING TO RECOGNIZE THE UNION WAS ITS BELIEF THAT THE
SINGLE LOCKHEED FACILITY WAS NOT AN APPROPRIATE BARGAINING UNIT.  THIS
WAS MORE THAN A COLORABLE CLAIM.  UNLIKE WACKENHUT, BURNS HAD NEVER
BARGAINED WITH A UNION CONSISTING OF ITS EMPLOYEES IN A SINGLE JOB
LOCATION.  ONE OF THE REASONS FOR THIS DIFFERENCE WAS THAT BURNS MADE A
PRACTICE OF TRANSFERRING EMPLOYEES FROM ONE JOB TO ANOTHER, ON A
TEMPORARY OR PERMANENT BASIS.  BOTH BURNS AND WACKENHUT HAD NUMEROUS
SECURITY GUARD JOBSITES IN SOUTHERN CALIFORNIA; FOR ADMINISTRATIVE
PURPOSES, WACKENHUT TREATED EACH JOBSITE AS A SEPARATE UNIT, WHILE
BURNS TREATED LARGE NUMBERS OF THEM TOGETHER. 

THE COURT SAYS IN EFFECT THAT THE BURNS EMPLOYEES AT LOCKHEED WERE
FOUND BY THE BOARD TO BE AN APPROPRIATE UNIT; THAT BURNS HAS NOT
EXPRESSLY PRESERVED THAT POINT FOR REVIEW HERE; AND THAT BURNS IS
THEREFORE OBLIGATED TO BARGAIN WITH THE PREVIOUSLY CERTIFIED UNION. 
BUT THE MAJOR PREMISE LEADING TO THIS CONCLUSION, THE DETERMINATION OF
THE APPROPRIATE UNIT, WAS ITSELF ESTABLISHED BY THE BOARD AND SUSTAINED
BY THE COURT OF APPEALS SOLELY UNDER THE DOCTRINE OF SUCCESSORSHIP. 
BURNS IS NEITHER REQUIRED TO EXPRESSLY CHALLENGE THE DESIGNATION OF THE
BARGAINING UNIT, NOR TO PREVAIL IN SUCH A CHALLENGE IN ORDER TO
DEMONSTRATE THE ERROR IN THE BARGAINING ORDER.  BURNS HAS EXPRESSLY
CHALLENGED THE DETERMINATION THAT UNDERLAY BOTH THE DETERMINATION AS TO
BARGAINING UNIT AND THE BARGAINING ORDER-- THE FINDING OF
SUCCESSORSHIP. 

THUS, IN A SITUATION WHERE THERE WAS NO EVIDENCE AT THE TIME AS TO
THE PREFERENCE OF A MAJORITY OF THE EMPLOYEES AT THE LOCKHEED FACILITY
AS TO A BARGAINING AGENT, AND THERE WAS NO INDEPENDENT FINDING THAT THE
EMPLOYEES AT THAT FACILITY WERE AN APPROPRIATE UNIT AS TO BURNS, THE
BOARD NONETHELESS IMPOSED THE DUTY TO BARGAIN.  THIS RESULT IS
SUSTAINABLE, IF AT ALL, ONLY ON THE THEORY THAT BURNS WAS A "SUCCESSOR"
TO WACKENHUT.  /2/  THE IMPOSITION OF SUCCESSORSHIP IN THIS CASE IS
UNUSUAL BECAUSE THE SUCCESSOR INSTEAD OF PURCHASING BUSINESS OR ASSETS
FROM OR MERGING WITH WACKENHUT WAS IN DIRECT COMPETITION WITH WACKENHUT
FOR THE LOCKHEED CONTRACT.  I BELIEVE THAT A CAREFUL ANALYSIS OF THE
ADMITTEDLY IMPRECISE CONCEPT OF SUCCESSORSHIP INDICATES THAT IMPORTANT
RIGHTS OF BOTH THE EMPLOYEE AND THE EMPLOYER TO INDEPENDENTLY ORDER
THEIR OWN AFFAIRS ARE SACRIFICED NEEDLESSLY BY THE APPLICATION OF THAT
DOCTRINE TO THIS CASE. 

IT HAS BEEN APTLY OBSERVED THAT THE DOCTRINE OF "SUCCESSOR" EMPLOYER
IN THE FIELD OF LABOR LAW IS "SHROUDED IN SOMEWHAT IMPRESSIONIST
APPROACHES."  /3/  IN JOHN WILEY & SONS, INC. V. LIVINGSTON, 376 U.S.
543(1964), WE EMPLOYED A FORM OF THE "SUCCESSOR" DOCTRINE TO IMPOSE
UPON AN EMPLOYER AN OBLIGATION TO ARBITRATE DISPUTES UNDER AN
ARBITRATION CLAUSE IN AN AGREEMENT ENTERED INTO BETWEEN A PREDECESSOR
EMPLOYER AND THE BARGAINING REPRESENTATIVE OF THE LATTER'S EMPLOYEES. 
THE DOCTRINE HAS BEEN APPLIED BY THE BOARD AND BY THE COURTS OF APPEALS
TO IMPOSE UPON THE SUCCESSOR EMPLOYER A DUTY TO BARGAIN WITH
REPRESENTATIVES OF THE EMPLOYEES OF HIS PREDECESSOR, NLRB V. AUTO
VENTSHADE, INC., 276 F.2D 303, 304(CA5 1960); MAKELA WELDING, INC. V.
NLRB, 387 F.2D 40, 46(CA6 1967), TO SUPPORT A FINDING OF UNFAIR LABOR
PRACTICES FROM A COURSE OF CONDUCT ENGAGED IN BY BOTH THE PREDECESSOR
AND THE SUCCESSOR, NLRB V. BLAIR QUARRIES, INC., 152 F.2D 25(CA4 1945),
AND TO REQUIRE THE SUCCESSOR TO REMEDY UNFAIR LABOR PRACTICES COMMITTED
BY A PREDECESSOR EMPLOYER, UNITED STATES PIPE & FOUNDRY CO. V. NLRB,
398 F.2D 544(CA5 1968).  THE CONSEQUENCES OF THE APPLICATION OF THE
"SUCCESSOR" DOCTRINE IN EACH OF THESE CASES HAS BEEN THAT THE
"SUCCESSOR" EMPLOYER HAS BEEN SUBJECTED TO CERTAIN BURDENS OR
OBLIGATIONS TO WHICH A SIMILARLY SITUATED EMPLOYER WHO IS NOT A
"SUCCESSOR" WOULD NOT BE SUBJECT. 

THE VARIOUS DECISIONS THAT HAVE APPLIED THE SUCCESSOR DOCTRINE
EXHIBIT MORE THAN ONE TRAIN OF REASONING IN SUPPORT OF ITS
APPLICATION.  THERE IS AUTHORITY FOR THE PROPOSITION THAT IT RESTS IN
PART AT LEAST UPON THE NEED FOR CONTINUITY IN INDUSTRIAL LABOR
RELATIONS, AND THE CONCOMITANT AVOIDANCE OF INDUSTRIAL STRIFE THAT
PRESUMABLY FOLLOWS FROM SUCH CONTINUITY.  NLRB V. COLTEN, 105 F.2D
179(CA6 1939); TOM-A-HAWK TRANSIT, INC. V. NLRB, 419 F.2D 1025(CA7
1969).  ON EXAMINATION, HOWEVER, THIS PROPOSITION MAY MORE ACCURATELY
BE DESCRIBED AS A STATEMENT OF THE RESULT OF A FINDING OF
SUCCESSORSHIP, RATHER THAN A REASON FOR MAKING THAT FINDING. 

OTHER CASES HAVE STATED THE GUIDING PRINCIPLE TO BE WHETHER THE
"EMPLOYING INDUSTRY" REMAINS ESSENTIALLY THE SAME AFTER THE CHANGE IN
OWNERSHIP.  NLRB V. TEMPEST SHIRT MFG. CO., 285 F.2D 1(CA5 1960); NLRB
V. ALAMO WHITE TRUCK SERVICE, INC., 273 F.2D 238(CA5 1959).  UNDER THIS
APPROACH A VARIETY OF FACTS RELATING TO THE "EMPLOYING INDUSTRY" HAVE
BEEN EXAMINED TO SEE WHETHER A SUFFICIENT NUMBER REMAIN UNCHANGED TO
WARRANT THE IMPOSITION OF SUCCESSORSHIP.  WHILE IT CANNOT BE DOUBTED
THAT A DETERMINATION AS TO SUCCESSORSHIP WILL VARY WITH DIFFERENT FACT
SITUATIONS, SOME GENERAL CONCEPT OF THE REASON FOR THE SUCCESSORSHIP
DOCTRINE IS ESSENTIAL IN ORDER TO DETERMINE THE IMPORTANCE OF THE
VARIOUS FACTUAL COMBINATIONS AND PERMUTATIONS THAT MAY OR MAY NOT CALL
FOR ITS APPLICATION. 

THIS COURT'S OPINION IN WILEY MAKES IT CLEAR THAT ONE OF THE BASES
FOR A FINDING OF SUCCESSORSHIP IS THE NEED TO GRANT SOME PROTECTION TO
EMPLOYEES FROM A SUDDEN TRANSFORMATION OF THEIR EMPLOYER'S BUSINESS
THAT RESULTS IN THE SUBSTITUTION OF A NEW LEGAL ENTITY, NOT BOUND BY
THE COLLECTIVE-BARGAINING CONTRACT UNDER CONTRACT LAW, AS THE EMPLOYER,
BUT LEAVES INTACT SIGNIFICANT ELEMENTS OF THE EMPLOYER'S BUSINESS.  THE
COURT SAID THERE: 

"THE OBJECTIVES OF NATIONAL LABOR POLICY, REFLECTED IN ESTABLISHED
PRINCIPLES OF FEDERAL LAW, REQUIRE THAT THE RIGHTFUL PREROGATIVE OF
OWNERS INDEPENDENTLY TO REARRANGE THEIR BUSINESSES AND EVEN ELIMINATE
THEMSELVES AS EMPLOYERS BE BALANCED BY SOME PROTECTION TO THE EMPLOYEES
FROM A SUDDEN CHANGE IN THE EMPLOYMENT RELATIONSHIP.  THE TRANSITION
FROM ONE CORPORATE ORGANIZATION TO ANOTHER WILL IN MOST CASES BE EASED
AND INDUSTRIAL STRIFE AVOIDED IF EMPLOYEES' CLAIMS CONTINUE TO BE
RESOLVED BY ARBITRATION RATHER THAN BY 'THE RELATIVE STRENGTH . . . OF
THE CONTENDING FORCES'.  . . . " 376 U.S.,AT 549.  BUT OTHER LANGUAGE
IN WILEY MAKES IT CLEAR THAT THE CONSIDERATIONS FAVORING THE CONTINUITY
OF EXISTING BARGAINING RELATIONSHIPS ARE NOT WITHOUT THEIR LIMITS: 

   "WE DO NOT HOLD THAT IN EVERY CASE IN WHICH THE OWNERSHIP OR

  CORPORATE STRUCTURE OF AN ENTERPRISE IS CHANGED THE DUTY TO

  ARBITRATE SURVIVES.  AS INDICATED ABOVE, THERE MAY BE CASES IN

  WHICH THE LACK OF ANY SUBSTANTIAL CONTINUITY OF IDENTITY IN THE

  BUSINESS ENTERPRISE BEFORE AND AFTER A CHANGE WOULD MAKE A DUTY

  TO ARBITRATE SOMETHING IMPOSED FROM WITHOUT, NOR REASONABLY TO BE

  FOUND IN THE PARTICULAR BARGAINING AGREEMENT AND THE ACTS OF THE

  PARTIES INVOLVED."  376 U.S.,AT 551. 

THE CONFLICTING IMPLICATIONS IN THESE PORTIONS OF THE OPINION IN
WILEY SUGGEST THAT EMPLOYEES ARE INDEED ENTITLED TO A MEASURE OF
PROTECTION AGAINST CHANGE IN THE EMPLOYING ENTITY WHERE THE NEW
EMPLOYER CONTINUES TO MAKE USE OF TANGIBLE OR INTANGIBLE ASSETS USED IN
CARRYING ON THE BUSINESS OF THE FIRST EMPLOYER.  THEY ALSO MAKE CLEAR
THAT THE SUCCESSORSHIP DOCTRINE, CARRIED TO ITS ULTIMATE LIMITS, RUNS
COUNTER TO OTHER EQUALLY WELL-ESTABLISHED PRINCIPLES OF LABOR LAW. 
INDUSTRIAL PEACE IS AN IMPORTANT GOAL OF THE LABOR MANAGEMENT RELATIONS
ACT.  BUT CONGRESS HAS TIME AND AGAIN REFUSED TO SACRIFICE FREE
COLLECTIVE BARGAINING BETWEEN REPRESENTATIVES OF THE EMPLOYEES AND THE
EMPLOYER FOR A SYSTEM OF COMPULSORY ARBITRATION.  /4/  AS THE COURT
SAID IN NLRB V. INSURANCE AGENTS, 361 U.S. 477, 488(1960): 

"THE MAINSTREAM OF CASES BEFORE THE BOARD AND IN THE COURTS
REVIEWING ITS ORDERS, UNDER THE PROVISIONS FIXING THE DUTY TO BARGAIN
COLLECTIVELY, IS CONCERNED WITH INSURING THAT THE PARTIES APPROACH THE
BARGAINING TABLE WITH THIS ATTITUDE (GOOD FAITH).  BUT APART FROM THIS
ESSENTIAL STANDARD OF CONDUCT, CONGRESS INTENDED THAT THE PARTIES
SHOULD HAVE WIDE LATITUDE IN THEIR NEGOTIATIONS, UNRESTRICTED BY ANY
GOVERNMENTAL POWER TO REGULATE THE SUBSTANTIVE SOLUTION OF THEIR
DIFFERENCES."  AND THIS COURT HAS RECENTLY HELD THAT THE BOARD ITSELF
MAY NOT COMPEL ONE OF THE PARTIES IN THE COLLECTIVE-BARGAINING PROCESS
TO AGREE TO ANY PARTICULAR PROPOSAL OF THE OTHER.  H. K. PORTER CO. V.
NLRB, 397 U.S. 99(1970).  CONCEIVABLY THE IMPOSITION OF A SYSTEM OF
COMPULSORY ARBITRATION, OR THE GRANTING OF AUTHORITY TO THE BOARD TO
INSIST THAT THE PARTIES AT SOME POINT AGREE ON PARTICULAR TERMS OF A
POTENTIAL CONTRACT, WOULD LESSEN THE RISK OF INDUSTRIAL STRIFE.  BUT
CONGRESS HAS PLAINLY BEEN UNWILLING TO PURCHASE INDUSTRIAL PEACE AT THE
PRICE OF SUBSTANTIAL CURTAILMENT OF FREE COLLECTIVE BARGAINING BY THE
FREELY CHOSEN REPRESENTATIVES OF THE EMPLOYEES WITH THEIR EMPLOYER. 

THERE IS ALSO A NATURAL TENSION BETWEEN THE CONSTRAINTS IMPOSED ON
EMPLOYERS BY THE LABOR MANAGEMENT RELATIONS ACT, AND THE RIGHT OF THOSE
EMPLOYERS IN COMPETITION WITH ONE ANOTHER "INDEPENDENTLY TO REARRANGE
THEIR BUSINESSES AND EVEN ELIMINATE THEMSELVES AS EMPLOYERS."  WILEY,
376 U.S.,AT 549.  AN EMPLOYER'S ABILITY TO COMPETE IN HIS MARKET IS
AFFECTED, OF COURSE, BY THE TERMS OF WHATEVER COLLECTIVE-BARGAINING
AGREEMENT HE NEGOTIATES WITH THE REPRESENTATIVE OF HIS EMPLOYEES. 
ASIDE FROM THE DIRECT INFLUENCE ON PRICE BROUGHT ABOUT BY THE TERMS OF
A COLLECTIVE-BARGAINING AGREEMENT, THE COLLECTIVE-BARGAINING PROCESS
ITSELF PRESENTS A CERTAIN COST FACTOR THAT MAY AFFECT COMPETITION
BETWEEN EMPLOYERS IN THE MARKET.  /5/  THE NATIONAL COMMITMENT TO
COLLECTIVE BARGAINING EMBODIED IN THE LABOR MANAGEMENT RELATIONS ACT
EITHER REQUIRES OR PERMITS MANY OF THESE CONSTRAINTS.  BUT QUITE
REASONABLE EXPECTATIONS OF THE EMPLOYEES IN A PARTICULAR COLLECTIVE
BARGAINING UNIT MAY BE DISAPPOINTED BY A VOLUNTARY CHANGE IN THE
CONDITION OF THE EMPLOYER THAT IS QUITE INCAPABLE OF BEING REMEDIED BY
ANY RATIONAL APPLICATION OF THE SUCCESSORSHIP DOCTRINE.  AN EMPLOYER IS
FREE TO CEASE DOING BUSINESS, EVEN THOUGH HE CHOOSES TO DO SO WHOLLY
BECAUSE OF ANTI-UNION ANIMUS.  TEXTILE WORKERS V. DARLINGTON MFG. CO.,
380 U.S. 263(1965).  AN EMPLOYER MAY ADAMANTLY REFUSE, AT THE
EXPIRATION OF THE PERIOD COVERED BY A COLLECTIVE-BARGAINING AGREEMENT,
TO AGAIN CONSENT TO A PARTICULAR TERM OF THE AGREEMENT THAT THE
EMPLOYEES REGARDED AS SIGNIFICANT.  NLRB V. AMERICAN NATIONAL INSURANCE
CO., 343 U.S. 395(1952).  THESE EXAMPLES OF PERMISSIBLE EMPLOYER
CONDUCT FOR WHICH THE LABOR MANAGEMENT RELATIONS ACT PROVIDES NO
REMEDY, NOTWITHSTANDING THAT THE CONDUCT RESULTS IN THE DISAPPOINTMENT
OF LEGITIMATE EXPECTATIONS OF EMPLOYEES, SUGGEST THAT THE SUCCESSORSHIP
PRINCIPLE, LIKE EVERY OTHER PRINCIPLE OF LAW, HAS LIMITS BEYOND WHICH
IT MAY NOT BE EXPANDED. 

WILEY, SUPRA, SPEAKS IN TERMS OF A CHANGE IN THE "OWNERSHIP OR
CORPORATE STRUCTURE OF AN ENTERPRISE" AS BRINGING INTO PLAY THE
OBLIGATION OF THE SUCCESSOR EMPLOYER TO PERFORM AN OBLIGATION
VOLUNTARILY UNDERTAKEN BY THE PREDECESSOR EMPLOYER.  BUT WHILE THE
PRINCIPLE ENUNCIATED IN WILEY IS BY NO MEANS LIMITED TO THE CORPORATE
MERGER SITUATION PRESENT THERE, IT CANNOT LOGICALLY BE EXTENDED TO A
MERE NAKED SHIFTING OF A GROUP OF EMPLOYEES FROM ONE EMPLOYER TO
ANOTHER WITHOUT TOTALLY DISREGARDING THE BASIS FOR THE DOCTRINE.  THE
NOTION OF A CHANGE IN THE "OWNERSHIP OR CORPORATE STRUCTURE OF AN
ENTERPRISE" CONNOTES AT THE VERY LEAST THAT THERE IS CONTINUITY IN THE
ENTERPRISE, AS WELL AS CHANGE; AND THAT THAT CONTINUITY BE AT LEAST IN
PART ON THE EMPLOYER'S SIDE OF THE EQUATION, RATHER THAN ONLY ON THAT
OF THE EMPLOYEES.  IF WE DEAL WITH THE LEGITIMATE EXPECTATIONS OF
EMPLOYEES THAT THE EMPLOYER WHO AGREED TO THE COLLECTIVE-BARGAINING
CONTRACT PERFORM IT, WE CAN REQUIRE ANOTHER EMPLOYING ENTITY TO PERFORM
THE CONTRACT ONLY WHEN HE HAS SUCCEEDED TO SOME OF THE TANGIBLE OR
INTANGIBLE ASSETS BY THE USE OF WHICH THE EMPLOYEES MIGHT HAVE EXPECTED
THE FIRST EMPLOYER TO HAVE PERFORMED HIS CONTRACT WITH THEM. 

PHRASED ANOTHER WAY, THE DOCTRINE OF SUCCESSORSHIP IN THE FEDERAL
COMMON LAW OF LABOR RELATIONS ACCORDS TO EMPLOYEES THE SAME GENERAL
PROTECTION AGAINST TRANSFER OF ASSETS BY AN ENTITY AGAINST WHICH THEY
HAVE A CLAIM AS IS ACCORDED BY OTHER LEGAL DOCTRINES TO NONLABOR
RELATED CLAIMANTS AGAINST THE SAME ENTITY.  NONLABOR-RELATED CLAIMANTS
IN SUCH TRANSFER SITUATIONS MAY BE PROTECTED NOT ONLY BY ASSUMPTION
AGREEMENTS RESULTING FROM THE SELF-INTEREST OF THE CONTRACTING PARTIES
PARTICIPATING IN A MERGER OR SALE OF ASSETS BUT ALSO BY STATE LAWS
IMPOSING UPON THE SUCCESSOR CORPORATION OF ANY MERGER THE OBLIGATIONS
OF THE MERGER CORPORATION (SEE, E.G., SEC. 90 OF THE N.Y. STOCK CORP.
LAW(1951), CITED IN WILEY, SUPRA), AND BY BULK SALES ACTS FOUND IN
NUMEROUS STATES.  /6/  THESE LATTER ARE DESIGNED TO GIVE THE NONLABOR
RELATED CREDITOR OF THE PREDECESSOR ENTITY SOME CLAIM, EITHER AS A
MATTER OF CONTRACT RIGHT AGAINST THE SUCCESSOR, OR AS A MATTER OF
PROPERTY RIGHT TO CHARGE THE ASSETS THAT PASS FROM THE PREDECESSOR TO
THE SUCCESSOR.  THE IMPLICATION OF WILEY IS THAT THE FEDERAL COMMON LAW
OF LABOR RELATIONS ACCORDS THE SAME GENERAL TYPE AND DEGREE OF
PROTECTION TO EMPLOYEES CLAIMING UNDER A COLLECTIVE-BARGAINING
CONTRACT. 

CASES FROM THE COURTS OF APPEALS HAVE FOUND SUCCESSORSHIP,
CONSISTENTLY WITH THESE PRINCIPLES, WHERE THE NEW EMPLOYER PURCHASES A
PART OR ALL OF THE ASSETS OF THE PREDECESSOR EMPLOYER, NLRB V.
INTERSTATE 65 CORP., 453 F.2D 269(CA6 1971); WHERE THE ENTIRE BUSINESS
IS PURCHASED BY THE NEW EMPLOYER, NLRB V. MCFARLAND, 306 F.2D 219(CA10
1962); AND WHERE THERE IS MERELY A CHANGE IN THE OWNERSHIP INTEREST IN
A PARTNERSHIP THAT OPERATES THE EMPLOYING ENTITY, NLRB V. COLTEN, 105
F.2D 179(CA6 1939).  OTHER COURTS OF APPEALS HAVE, EQUALLY CONSISTENTLY
WITH THESE PRINCIPLES, REFUSED TO FIND SUCCESSORSHIP WHERE THERE HAVE
BEEN NO CONTRACTUAL DEALINGS BETWEEN THE TWO EMPLOYERS, AND ALL THAT
HAS TAKEN PLACE IS A SHIFT IN EMPLOYEES.  TRI STATE MAINTENANCE CORP.
V. NLRB, 132 U.S.APP.D.C. 368, 408 F.2D 171(1968); INTERNATIONAL ASSN.
OF MACHINISTS V. NLRB, 134 U.S.APP.D.C. 239, 414 F.2D 1135(1969).  /7/ 

THE RIGID IMPOSITION OF A PRIOR-EXISTING LABOR RELATIONS ENVIRONMENT
ON A NEW EMPLOYER WHOSE ONLY CONNECTION WITH THE OLD EMPLOYER IS THE
HIRING OF SOME OF THE LATTER'S EMPLOYEES AND THE PERFORMANCE OF SOME OF
THE WORK WHICH WAS PREVIOUSLY PERFORMED BY THE LATTER, MIGHT WELL TEND
TO PRODUCE INDUSTRIAL PEACE OF A SORT.  BUT INDUSTRIAL PEACE IN SUCH A
CASE WOULD BE PRODUCED AT A SACRIFICE OF THE DETERMINATION BY THE BOARD
OF THE APPROPRIATENESS OF BARGAINING AGENTS AND OF THE WISHES OF THE
MAJORITY OF THE EMPLOYEES WHICH THE ACT WAS DESIGNED TO PRESERVE. 
THESE LATTER PRINCIPLES CAUTION US AGAINST EXTENDING SUCCESSORSHIP,
UNDER THE BANNER OF INDUSTRIAL PEACE, STEP BY STEP TO A POINT WHERE THE
ONLY CONNECTION BETWEEN THE TWO EMPLOYING ENTITIES IS A NAKED TRANSFER
OF EMPLOYEES.  JUSTICE HOLMES IN HUDSON WATER CO. V. MCCARTER, 209 U.S.
349, 355(1908), SUMMARIZED THE GENERAL PROBLEM THIS WAY: 

     "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." 

BURNS ACQUIRED NOT A SINGLE ASSET, TANGIBLE OR INTANGIBLE, BY
NEGOTIATION OR TRANSFER FROM WACKENHUT.  IT SUCCEEDED TO THE
CONTRACTUAL RIGHTS AND DUTIES OF THE PLANT PROTECTION SERVICE CONTRACT
WITH LOCKHEED, NOT BY REASON OF WACKENHUT'S ASSIGNMENT OR CONSENT, BUT
OVER WACKENHUT'S VIGOROUS OPPOSITION.  I THINK THE ONLY PERMISSIBLE
CONCLUSION IS THAT BURNS IS NOT A SUCCESSOR TO WACKENHUT.  FOLLOWING
ITS DECISION IN THIS CASE, THE BOARD CONCLUDED IN LINCOLN PRIVATE
POLICE, 189 N.L.R.B.NO. 103(1971), THAT AN EMPLOYER OF GUARDS WAS NOT A
SUCCESSOR, SAYING: 

     "RESPONDENT, MOREOVER, HAS OPERATED AS AN ENTIRELY NEW AND

  INDEPENDENT BUSINESS ENTERPRISE.  IT OBTAINED ITS OWN OPERATING

  CAPITAL, PURCHASED NEW UNIFORMS, VEHICLES, AND EQUIPMENT, AND

  OCCUPIED DIFFERENT PREMISES THAN INDUSTRIAL.  ADDITIONALLY, THERE

  IS NO INDICATION THAT THERE HAS BEEN ANY CARRYOVER OF SUPERVISORY

  PERSONNEL FROM INDUSTRIAL TO RESPONDENT."  189 N.L.R.B.,AT-- .

SEE ALSO TRI STATE MAINTENANCE CORP. V. NLRB, SUPRA. 

TO CONCLUDE THAT BURNS WAS A SUCCESSOR TO WACKENHUT IN THIS
SITUATION, WITH ITS ATTENDANT CONSEQUENCES UNDER THE BOARD'S ORDER
IMPOSING A DUTY TO BARGAIN WITH THE BARGAINING REPRESENTATIVE OF
WACKENHUT'S EMPLOYEES, WOULD IMPORT UNWARRANTED RIGIDITY INTO LABOR
MANAGEMENT RELATIONS.  THE FORTUNES OF COMPETING EMPLOYERS INEVITABLY
EBB AND FLOW, AND AN EMPLOYER WHO HAS CURRENTLY GAINED PRODUCTION
ORDERS AT THE EXPENSE OF ANOTHER MAY WELL WISH TO HIRE EMPLOYEES AWAY
FROM THAT OTHER.  THERE IS NO REASON TO THINK THAT THE BEST INTERESTS
OF THE EMPLOYEES, THE EMPLOYERS, AND ULTIMATELY OF THE FREE MARKET ARE
NOT SERVED BY SUCH MOVEMENT.  YET INHERENT IN THE EXPANDED DOCTRINE OF
SUCCESSORSHIP THAT THE BOARD URGES IN THIS CASE IS THE NOTION THAT
SOMEHOW THE "LABOR RELATIONS ENVIRONMENT" COMES WITH THE NEW EMPLOYEES
IF THE NEW EMPLOYER HAS BUT OBTAINED ORDERS OR BUSINESS THAT PREVIOUSLY
BELONGED TO THE OLD EMPLOYER.  THE FACT THAT THE EMPLOYEES IN THE
INSTANT CASE CONTINUED TO PERFORM THEIR WORK AT THE SAME SITUS, WHILE
NOT IRRELEVANT TO ANALYSIS, CANNOT BE DEEMED CONTROLLING.  FOR THE
RIGIDITY THAT WOULD FOLLOW FROM THE BOARD'S APPLICATION OF
SUCCESSORSHIP TO THIS CASE WOULD NOT ONLY AFFECT COMPETITION BETWEEN
WACKENHUT AND BURNS, BUT WOULD ALSO AFFECT LOCKHEED'S OPERATIONS.  IN
EFFECT, IT WOULD BE SADDLED, AS AGAINST ITS COMPETITORS, WITH THE
DISADVANTAGEOUS CONSEQUENCES OF A COLLECTIVE-BARGAINING CONTRACT UNDULY
FAVORABLE TO WACKENHUT'S EMPLOYEES, EVEN THOUGH LOCKHEED'S CONTRACT
WITH WACKENHUT WAS SET TO EXPIRE AT A GIVEN TIME.  BY THE SAME TOKEN,
IT WOULD BE BENEFITED, AT THE EXPENSE OF ITS COMPETITORS, AS A RESULT
OF A "SWEETHEART" CONTRACT NEGOTIATED BETWEEN WACKENHUT AND ITS
EMPLOYEES.  FROM THE VIEWPOINT OF THE RECIPIENT OF THE SERVICES,
DISSATISFACTION WITH THE LABOR RELATIONS ENVIRONMENT MAY STIMULATE A
DESIRE FOR CHANGE OF CONTRACTORS.  E.G., TRI STATE MAINTENANCE CORP. V.
NLRB, SUPRA; 76 LAB.REL.REP.  230(1971).  WHERE THE RELATION BETWEEN
THE FIRST EMPLOYER AND THE SECOND IS AS ATTENUATED AS IT IS HERE, AND
THE REASONABLY EXPECTATIONS OF THE EMPLOYEES EQUALLY ATTENUATED, THE
APPLICATION OF THE SUCCESSORSHIP DOCTRINE IS NOT AUTHORIZED BY THE
LABOR MANAGEMENT RELATIONS ACT. 

THIS IS NOT TO SAY THAT BURNS WOULD BE UNILATERALLY FREE TO MESH
INTO ITS PREVIOUSLY RECOGNIZED LOS ANGELES COUNTY BARGAINING UNIT A
GROUP OF EMPLOYEES SUCH AS WERE INVOLVED HERE WHO ALREADY HAVE
DESIGNATED A COLLECTIVE-BARGAINING REPRESENTATIVE IN THEIR PREVIOUS
EMPLOYMENT.  BURNS' ACTIONS IN THIS REGARD WOULD BE SUBJECT TO THE
COMMANDS OF THE LABOR MANAGEMENT RELATIONS ACT, AND TO THE REGULATION
OF THE BOARD UNDER PROPER APPLICATION OF GOVERNING PRINCIPLES.  THE
SITUATION RESULTING FROM THE ADDITION OF A NEW ELEMENT OF THE COMPONENT
WORK FORCE OF AN EMPLOYER HAS BEEN DEALT WITH BY THE BOARD IN NUMEROUS
CASES, AND VARIOUS FACTORS ARE WEIGHED IN ORDER TO DETERMINE WHETHER
THE NEW WORKFORCE COMPONENT SHOULD BE ITSELF A SEPARATE BARGAINING
UNIT, OR WHETHER THE EMPLOYEES IN THIS COMPONENT SHALL BE "ACCRETED" TO
THE BARGAINING UNIT ALREADY IN EXISTENCE.  SEE, E.G., NLRB V. FOOD
EMPLOYERS COUNCIL, INC., 399 F.2D 501(CA9 1968); NORTHWEST GALVANIZING
CO., 168 N.L.R.B. 26(1967).  HAD THE BOARD MADE THE APPROPRIATE FACTUAL
INQUIRY AND DETERMINATIONS REQUIRED BY THE ACT, SUCH INQUIRY MIGHT HAVE
JUSTIFIED THE CONCLUSION THAT BURNS WAS OBLIGATED TO RECOGNIZE AND
BARGAIN WITH THE UNION AS A REPRESENTATIVE OF ITS EMPLOYEES AT THE
LOCKHEED FACILITY.     BUT THE BOARD, INSTEAD OF APPLYING THIS TYPE OF
ANALYSIS TO THE UNION'S COMPLAINTS HERE, CONCLUDED THAT BECAUSE BURNS
WAS A "SUCCESSOR"  IT WAS ABSOLUTELY BOUND TO THE MOLD THAT HAD BEEN
FASHIONED BY WACKENHUT AND ITS EMPLOYEES AT LOCKHEED.  BURNS WAS
THEREBY PRECLUDED FROM CHALLENGING THE DESIGNATION OF LOCKHEED AS AN
APPROPRIATE BARGAINING UNIT FOR A YEAR AFTER THE ORIGINAL
CERTIFICATION.  61 STAT. 144, 29 U.S.C. 159(C)(3). 

I AM UNWILLING TO FOLLOW THE BOARD THIS FAR DOWN THE SUCCESSORSHIP
ROAD, SINCE I BELIEVE TO DO SO WOULD SUBSTANTIALLY UNDERCUT THE
PRINCIPLE OF FREE CHOICE OF BARGAINING REPRESENTATIVES BY THE EMPLOYEES
AND DESIGNATION OF THE APPROPRIATE BARGAINING UNIT BY THE BOARD THAT
ARE GUARANTEED BY THE ACT. 

/1/  "WHILE A BROADER UNIT MIGHT HAVE BEEN APPROPRIATE, I FIND A
UNIT OF GUARDS LIMITED TO A SINGLE FACILITY AS AN APPROPRIATE UNIT. 
HERE, THE CERTIFICATION WAS PURSUANT TO A CONSENT ELECTION AGREEMENT." 
TRIAL EXAMINER'S DECISION, APP. 22. 

"TRIAL EXAMINER:  I AM NOT CONCERNED WITH WHETHER OR NOT THERE WAS A
HEARING.  THE REGIONAL DIRECTOR APPROVED OF THE CONSENT ELECTION AND
STIPULATION, AND THE ELECTION HAVING TAKEN PLACE, I WOULD FIND THAT THE
REGIONAL DIRECTOR'S ACTION WAS PROPERLY CONDUCTED IN DUE COURSE.  . . .
" PROCEEDINGS BEFORE THE NLRB, APP. 68. 

/2/  THE COURT'S EMPHASIS, ANTE, AT 275-276, ON THE BOARD'S
DETERMINATION THAT BURNS COMMITTED UNFAIR PRACTICES BY AIDING THE AFG
CANNOT BE TAKEN AS ANY SUPPORT FOR THE BARGAINING ORDER.  IT MERELY
SUPPORTS THE CEASE-AND-DESIST ORDER DIRECTING BURNS TO STOP SUCH
PRACTICES, WHICH HAS NOT BEEN CHALLENGED HERE BY BURNS. 

/3/  INTERNATIONAL ASSN. OF MACHINISTS V. NLRB, 134 U.S.APP.D.C.
239, 243, 414 F.2D 1135, 1139(1969) (LEVENTHAL, J., CONCURRING). 

/4/  "EXCEPT IN ISOLATED INSTANCES, . . . CONGRESS AND THE SUPREME
COURT HAVE REFUSED TO COMPEL, OR EVEN TO ALLOW, THAT FORM OF
GOVERNMENTAL COMPULSION OF ECONOMIC DECISIONS WHICH HAS COME TO BE
CALLED 'COMPULSORY ARBITRATION.'"  NONES, COMPULSION AND THE CONSENSUAL
IN LABOR ARBITRATION, 51 VA.L.REV.  369(1965). 

"IN DEALING WITH THE PROBLEM OF THE DIRECT SETTLEMENT OF LABOR
DISPUTES THE COMMITTEE HAS CONSIDERED A GREAT VARIETY OF THE PROPOSALS
RANGING FROM COMPULSORY ARBITRATION, THE ESTABLISHMENT OF FACT-FINDING
BOARDS, CREATION OF AN OVER-ALL MEDIATION TRIBUNAL, AND THE IMPOSITION
OF SPECIFIED WAITING PERIODS.  . . . (WE DO NOT FEEL WARRANTED IN
RECOMMENDING THAT ANY SUCH PLANS BECOME PERMANENT LEGISLATION."  S.
REP. NO. 105, 80TH CONG., 1ST SESS., 13(1947).  SEE ALSO THE SPEECH BY
SENATOR TAFT, DURING DEBATE ON THE TAFT-HARTLEY ACT, 93 CONG.REC.  3835
3836, CITED IN BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S. 383, 395 N.
21(1951). 

/5/  THE GENERAL ACCOUNTING OFFICE HAS RECOGNIZED THAT BIDDERS FOR A
COST-PLUS-FEE SUBCONTRACT TO NASA, WHO DEALT WITH DIFFERENT UNIONS,
COULD BE EVALUATED BY NASA ON THE BASIS OF VARYING COSTS THAT
COLLECTIVE BARGAINING ITSELF MIGHT GENERATE.  76 LAB.REL.REP. 
230(1971). 

/6/  UNIFORM COMMERCIAL CODE SECS. 6-101 TO 6-111. 

/7/  A FINDING OF SUCCESSORSHIP HAS BEEN UPHELD, ON THE OTHER HAND,
BY ONE COURT OF APPEALS WHERE THERE WERE NO CONTRACTUAL DEALINGS
BETWEEN THE TWO EMPLOYERS, AND THE SUCCESSOR EMPLOYER MERELY REPLACED
THE PREDECESSOR AS A SUCCESSFUL BIDDER FOR A TRANSIT FRANCHISE.  TOM-A
HAWK TRANSIT, INC. V. NLRB, 419 F.2D 1025(CA7 1969). 

NORTON J. COME ARGUED THE CAUSE FOR THE NATIONAL LABOR RELATIONS
BOARD, PETITIONER IN NO. 71-123 AND RESPONDENT IN NO. 71-198.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, HARRY R. SACHSE, PETER G.
NASH, AND NANCY M. SHERMAN. 

CHARLES G. BAKALY, JR., ARGUED THE CAUSE FOR BURNS INTERNATIONAL
SECURITY SERVICES, INC., RESPONDENT IN NO. 71-123 AND PETITIONER IN NO.
71-198.  WITH HIM ON THE BRIEF WAS SEYMOUR SWERDLOW. 

GORDON A. GREGORY ARGUED THE CAUSE AND FILED A BRIEF FOR
INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA, ET AL.,
RESPONDENTS IN BOTH CASES. 

BRIEFS OF AMICI CURIAE WERE FILED BY J. ALBERT WOLL, LAURENCE GOLD,
AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS, AND BY MILTON A. SMITH AND JAY S. SIEGEL
FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES. 
..END :















UNITED STATES V. BISWELL, 406 U.S. 311 


       UNITED STATES V. BISWELL

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 71-81.  ARGUED MARCH 28, 1972-- DECIDED MAY 15, 1972 


WARRANTLESS SEARCH OF LOCKED STOREROOM DURING BUSINESS HOURS AS PART
OF INSPECTION PROCEDURE AUTHORIZED BY SEC. 923(G) OF THE GUN CONTROL
ACT OF 1968, WHICH RESULTED IN THE SEIZURE OF UNLICENSED FIREARMS FROM
A DEALER FEDERALLY LICENSED TO DEAL IN SPORTING WEAPONS HELD NOT
VIOLATIVE OF FOURTH AMENDMENT.  PP. 311-317. 

442 F.2D 1189, REVERSED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, MARSHALL, POWELL, AND REHNQUIST, JJ.,
JOINED.  BLACKMUN, J., FILED AN OPINION CONCURRING IN THE RESULT, POST,
P. 317.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 317. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE GUN CONTROL ACT OF 1968, 2 STAT. 1213, 18 U.S.C. 921 ET SEQ.,
AUTHORIZES OFFICIAL ENTRY DURING BUSINESS HOURS INTO "THE PREMISES
(INCLUDING PLACES OF STORAGE) OF ANY FIREARMS OR AMMUNITION . . .
DEALER . . . FOR THE PURPOSE OF INSPECTING OR EXAMINING (1) ANY RECORDS
OR DOCUMENTS REQUIRED TO BE KEPT . . . AND (2) ANY FIREARMS OR
AMMUNITION KEPT OR STORED BY SUCH . . . DEALER . . . AT SUCH
PREMISES."  /1/  18 U.S.C. 923(G).  RESPONDENT, A PAWN SHOP OPERATOR
WHO WAS FEDERALLY LICENSED TO DEAL IN SPORTING WEAPONS, WAS VISITED ONE
AFTERNOON BY A CITY POLICEMAN AND A FEDERAL TREASURY AGENT WHO
IDENTIFIED HIMSELF, INSPECTED RESPONDENT'S BOOKS, AND REQUESTED ENTRY
INTO A LOCKED GUN STOREROOM.  RESPONDENT ASKED WHETHER THE AGENT HAD A
SEARCH WARRANT, AND THE INVESTIGATOR TOLD HIM THAT HE DID NOT, BUT THAT
SEC. 923(G) AUTHORIZED SUCH INSPECTIONS.  RESPONDENT WAS GIVEN A COPY
OF THE SECTION TO READ AND HE REPLIED, "WELL, THAT'S WHAT IT SAYS TO I
GUESS IT'S OKAY."  RESPONDENT UNLOCKED THE STOREROOM, AND THE AGENT
FOUND AND SEIZED TWO SAWED-OFF RIFLES WHICH RESPONDENT WAS NOT LICENSED
TO POSSESS.  HE WAS INDICTED AND CONVICTED FOR DEALING IN FIREARMS
WITHOUT HAVING PAID THE REQUIRED SPECIAL OCCUPATIONAL TAX.  /2/  THE
COURT OF APPEALS REVERSED, HOWEVER, HOLDING THAT SEC. 923(G) WAS
UNCONSTITUTIONAL UNDER THE FOURTH AMENDMENT BECAUSE IT AUTHORIZED
WARRANTLESS SEARCHES OF BUSINESS PREMISES AND THAT RESPONDENT'S
OSTENSIBLE CONSENT TO THE SEARCH WAS INVALID UNDER BUMPER V. NORTH
CAROLINA, 391 U.S. 543(1968).  THE COURT OF APPEALS CONCLUDED THAT THE
SAWED-OFF-RIFLES, HAVING BEEN ILLEGALLY SEIZED, WERE INADMISSIBLE IN
EVIDENCE.  442 F.2D 1189(CA10 1971).  WE GRANTED CERTIORARI, 404 U.S.
983(1971), AND NOW REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

AS THE COURT OF APPEALS CORRECTLY RECOGNIZED, WE HAD NO OCCASION IN
SEE V. CITY OF SEATTLE, 387 U.S. 541(1967), TO CONSIDER THE REACH OF
THE FOURTH AMENDMENT WITH RESPECT TO VARIOUS FEDERAL REGULATORY
STATUTES.  IN COLONNADE CATERING CORP. V. UNITED STATES, 397 U.S.
72(1970), WE DEALT WITH THE STATUTORY AUTHORIZATION FOR WARRANTLESS
INSPECTIONS OF FEDERALLY LICENSED DEALERS IN ALCOHOLIC BEVERAGES. 
THERE, FEDERAL INSPECTORS, WITHOUT A WARRANT AND WITHOUT THE OWNER'S
PERMISSION, HAD FORCIBLY ENTERED A LOCKED STOREROOM AND SEIZED ILLEGAL
LIQUOR.  EMPHASIZING THE HISTORICALLY BROAD AUTHORITY OF THE GOVERNMENT
TO REGULATE THE LIQUOR INDUSTRY AND THE APPROVAL OF SIMILAR INSPECTION
LAWS OF THIS KIND IN BOYD V. UNITED STATES, 116 U.S. 616(1886), /3/  WE
CONCLUDED THAT CONGRESS HAD AMPLE POWER "TO DESIGN SUCH POWERS OF
INSPECTION UNDER THE LIQUOR LAWS AS IT DEEMS NECESSARY TO MEET THE
EVILS AT HAND."  397 U.S.,AT 76.  WE FOUND, HOWEVER, THAT CONGRESS HAD
NOT EXPRESSLY PROVIDED FOR FORCIBLE ENTRY IN THE ABSENCE OF A WARRANT
AND HAD INSTEAD GIVEN GOVERNMENT AGENTS A REMEDY BY MAKING IT A
CRIMINAL OFFENSE TO REFUSE ADMISSION TO THE INSPECTORS UNDER 26 U.S.C.
7342. 

HERE, THE SEARCH WAS NOT ACCOMPANIED BY ANY UNAUTHORIZED FORCE, AND
IF THE TARGET OF THE INSPECTION HAD BEEN A FEDERALLY LICENSED LIQUOR
DEALER, IT IS CLEAR UNDER COLONNADE THAT THE FOURTH AMENDMENT WOULD NOT
BAR A SEIZURE OF ILLICIT LIQUOR.  WHEN THE OFFICERS ASKED TO INSPECT
RESPONDENT'S LOCKED STOREROOM, THEY WERE MERELY ASSERTING THEIR
STATUTORY RIGHT, AND RESPONDENT WAS ON NOTICE AS TO THEIR IDENTITY AND
THE LEGAL BASIS FOR THEIR ACTION.  RESPONDENT'S SUBMISSION TO LAWFUL
AUTHORITY AND HIS DECISION TO STEP ASIDE AND PERMIT THE INSPECTION
RATHER THAN FACE A CRIMINAL PROSECUTION /4/  IS ANALOGOUS TO A HOUSE
HOLDER'S ACQUIESCENCE IN A SEARCH PURSUANT TO A WARRANT WHEN THE
ALTERNATIVE IS A POSSIBLE CRIMINAL PROSECUTION FOR REFUSING ENTRY OR A
FORCIBLE ENTRY.  IN NEITHER CASE DOES THE LAWFULNESS OF THE SEARCH
DEPEND ON CONSENT; IN BOTH, THERE IS LAWFUL AUTHORITY INDEPENDENT OF
THE WILL OF THE HOUSEHOLDER WHO MIGHT, OTHER THINGS BEING EQUAL, PREFER
NO SEARCH AT ALL.  IN THIS CONTEXT, BUMPER V. NORTH CAROLINA, 391 U.S.
543(1968), IS INAPPOSITE, SINCE THERE THE POLICE RELIED ON A WARRANT
THAT WAS NEVER SHOWN TO BE VALID; BECAUSE THEIR DEMAND FOR ENTRY WAS
NOT PURSUANT TO LAWFUL AUTHORITY, THE ACQUIESCENCE OF THE HOUSEHOLDER
WAS HELD AN INVOLUNTARY CONSENT.  IN THE CONTEXT OF A REGULATORY
INSPECTION SYSTEM OF BUSINESS PREMISES THAT IS CAREFULLY LIMITED IN
TIME, PLACE, AND SCOPE, THE LEGALITY OF THE SEARCH DEPENDS NOT ON
CONSENT BUT ON THE AUTHORITY OF A VALID STATUTE. 

WE THINK A LIKE RESULT IS REQUIRED IN THE PRESENT CASE, WHICH
INVOLVES A SIMILAR INSPECTION SYSTEM AIMED AT FEDERALLY LICENSED
DEALERS IN FIREARMS.  FEDERAL REGULATION OF THE INTERSTATE TRAFFIC IN
FIREARMS IS NOT AS DEEPLY ROOTED IN HISTORY AS IS GOVERNMENTAL CONTROL
OF THE LIQUOR INDUSTRY, BUT CLOSE SCRUTINY OF THIS TRAFFIC IS
UNDENIABLY OF CENTRAL IMPORTANCE TO FEDERAL EFFORTS TO PREVENT VIOLENT
CRIME AND TO ASSIST THE STATES IN REGULATING THE FIREARMS TRAFFIC
WITHIN THEIR BORDERS.  SEE CONGRESSIONAL FINDINGS AND DECLARATION, NOTE
PRECEDING 18 U.S.C. 922.  LARGE INTERESTS ARE AT STAKE, AND INSPECTION
IS A CRUCIAL PART OF THE REGULATORY SCHEME, SINCE IT ASSURES THAT
WEAPONS ARE DISTRIBUTED THROUGH REGULAR CHANNELS AND IN A TRACEABLE
MANNER AND MAKES POSSIBLE THE PREVENTION OF SALES TO UNDESIRABLE
CUSTOMERS AND THE DETECTION OF THE ORIGIN OF PARTICULAR FIREARMS. 

IT IS ALSO APPARENT THAT IF THE LAW IS TO BE PROPERLY ENFORCED AND
INSPECTION MADE EFFECTIVE, INSPECTIONS WITHOUT WARRANT MUST BE DEEMED
REASONABLE OFFICIAL CONDUCT UNDER THE FOURTH AMENDMENT.  IN SEE V. CITY
OF SEATTLE, 387 U.S. 541(1967), THE MISSION OF THE INSPECTION SYSTEM
WAS TO DISCOVER AND CORRECT VIOLATIONS OF THE BUILDING CODE, CONDITIONS
THAT WERE RELATIVELY DIFFICULT TO CONCEAL OR TO CORRECT IN A SHORT
TIME.  PERIODIC INSPECTION SUFFICED, AND INSPECTION WARRANTS COULD BE
REQUIRED AND PRIVACY GIVEN A MEASURE OF PROTECTION WITH LITTLE IF ANY
THREAT TO THE EFFECTIVENESS OF THE INSPECTION SYSTEM THERE AT ISSUE. 
WE EXPRESSLY REFRAINED IN THAT CASE FROM QUESTIONING A WARRANTLESS
REGULATORY SEARCH SUCH AS THAT AUTHORIZED BY SEC. 923 OF THE GUN
CONTROL ACT.  HERE, IF INSPECTION IS TO BE EFFECTIVE AND SERVE AS A
CREDIBLE DETERRENT, UNANNOUNCED, EVEN FREQUENT, INSPECTIONS ARE
ESSENTIAL.  IN THIS CONTEXT, THE PREREQUISITE OF A WARRANT COULD EASILY
FRUSTRATE INSPECTION; AND IF THE NECESSARY FLEXIBILITY AS TO TIME,
SCOPE, AND FREQUENCY IS TO BE PRESERVED, THE PROTECTIONS AFFORDED BY A
WARRANT WOULD BE NEGLIGIBLE. 

IT IS ALSO PLAIN THAT INSPECTIONS FOR COMPLIANCE WITH THE GUN
CONTROL ACT POSE ONLY LIMITED THREATS TO THE DEALER'S JUSTIFIABLE
EXPECTATIONS OF PRIVACY.  WHEN A DEALER CHOOSES TO ENGAGE IN THIS
PERVASIVELY REGULATED BUSINESS AND TO ACCEPT A FEDERAL LICENSE, HE DOES
SO WITH THE KNOWLEDGE THAT HIS BUSINESS RECORDS, FIREARMS, AND
AMMUNITION WILL BE SUBJECT TO EFFECTIVE INSPECTION.  EACH LICENSEE IS
ANNUALLY FURNISHED WITH A REVISED COMPILATION OF ORDIANCES THAT
DESCRIBE HIS OBLIGATIONS AND DEFINE THE INSPECTOR'S AUTHORITY.  18
U.S.C. 921(A)(19).  THE DEALER IS NOT LEFT TO WONDER ABOUT THE PURPOSES
OF THE INSPECTOR OR THE LIMITS OF HIS TASK. 

WE HAVE LITTLE DIFFICULTY IN CONCLUDING THAT WHERE, AS HERE,
REGULATORY INSPECTIONS FURTHER URGENT FEDERAL INTEREST, AND THE
POSSIBILITIES OF ABUSE AND THE THREAT TO PRIVACY ARE NOT OF IMPRESSIVE
DIMENSIONS, THE INSPECTION MAY PROCEED WITHOUT A WARRANT WHERE
SPECIFICALLY AUTHORIZED BY STATUTE.  THE SEIZURE OF RESPONDENT'S SAWED
OFF RIFLES WAS NOT UNREASONABLE UNDER THE FOURTH AMENDMENT, AND THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS REMANDED
TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/ "EACH LICENSED IMPORTER, LICENSED MANUFACTURER, LICENSED DEALER,
AND LICENSED COLLECTOR SHALL MAINTAIN SUCH RECORDS OF IMPORTATION,
PRODUCTION, SHIPMENT, RECEIPT, SALE, OR OTHER DISPOSITION, OF FIREARMS
AND AMMUNITION AT SUCH PLACE, FOR SUCH PERIOD, AND IN SUCH FORM AS THE
SECRETARY (OF THE TREASURY) MAY BY REGULATIONS PRESCRIBE.  SUCH
IMPORTERS, MANUFACTURERS, DEALERS, AND COLLECTORS SHALL MAKE SUCH
RECORDS AVAILABLE FOR INSPECTION AT ALL REASONABLE TIMES, AND SHALL
SUBMIT TO THE SECRETARY SUCH REPORTS AND INFORMATION WITH RESPECT TO
SUCH RECORDS AND THE CONTENTS THEREOF AS HE SHALL BE REGULATIONS
PRESCRIBE.  THE SECRETARY MAY ENTER DURING BUSINESS HOURS THE PREMISES
(INCLUDING PLACES OF STORAGE) OF ANY FIREARMS OR AMMUNITION IMPORTER,
MANUFACTURER, DEALER, OR COLLECTOR FOR THE PURPOSE OF INSPECTING OR
EXAMINING (1) ANY RECORDS OR DOCUMENTS REQUIRED TO BE KEPT BY SUCH
IMPORTER, MANUFACTURER, DEALER, OR COLLECTOR UNDER THE PROVISIONS OF
THIS CHAPTER OR REGULATIONS ISSUED UNDER THIS CHAPTER, AND (2) ANY
FIREARMS OR AMMUNITION KEPT OR STORED BY SUCH IMPORTER, MANUFACTURER,
DEALER, OR COLLECTOR AT SUCH PREMISES.  UPON THE REQUEST OF ANY STATE
OR ANY POLITICAL SUBDIVISION THEREOF, THE SECRETARY MAY MAKE AVAILABLE
TO SUCH STATE OR ANY POLITICAL SUBDIVISION THEREOF, ANY INFORMATION
WHICH HE MAY OBTAIN BY REASON OF THE PROVISIONS OF THIS CHAPTER WITH
RESPECT TO THE IDENTIFICATION OF PERSONS WITHIN SUCH STATE OR POLITICAL
SUBDIVISION THEREOF, WHO HAVE PURCHASED OR RECEIVED FIREARMS OR
AMMUNITION, TOGETHER WITH A DESCRIPTION OF SUCH FIREARMS OR
AMMUNITION."  18 U.S.C. 923(G). 

/2/  RESPONDENT WAS LICENSED UNDER 18 U.S.C. 923 TO SELL CERTAIN
SPORTING WEAPONS AS DEFINED IN 18 U.S.C. 921.  THE SAWED-OFF RIFLES,
HOWEVER, FELL UNDER 26 U.S.C. 5845'S TECHNICAL DEFINITION OF
"FIREARMS," AND EVERY DEALER IN SUCH FIREARMS WAS REQUIRED BY 26 U.S.C.
5801 TO PAY A SPECIAL OCCUPATIONAL TAX OF $200 A YEAR.  SUCH FIREARMS
ARE ALSO REQUIRED TO BE REGISTERED TO A DEALER IN THE NATIONAL FIREARMS
REGISTRATION AND TRANSFER RECORD.  26 U.S.C. 5841.  RESPONDENT WAS
INDICTED ON SIX COUNTS.  COUNT I, ON WHICH HE WAS CONVICTED, CHARGED
THAT HE HAD "WILFULLY AND KNOWINGLY ENGAGED IN BUSINESS AS A DEALER IN
FIREARMS, AS DEFINED BY 26 U.S.C. 5845 . . . WITHOUT HAVING PAID THE
SPECIAL (OCCUPATIONAL) TAX REQUIRED BY 26 U.S.C. 5801 FOR HIS
BUSINESS."  COUNTS II-V, ON WHICH HE WAS ACQUITTED, CHARGED THAT HE HAD
POSSESSED CERTAIN FIREARMS THAT WERE NOT IDENTIFIED BY SERIAL NUMBER,
AS REQUIRED BY 26 U.S.C. 5842, AND THAT WERE NOT REGISTERED IN THE
NATIONAL FIREARMS REGISTRATION AND TRANSFER RECORD, AS REQUIRED BY 26
U.S.C. 5841.  COUNT VI, WHICH CHARGED RESPONDENT WITH FAILING TO
MAINTAIN PROPERLY THE RECORDS REQUIRED UNDER 18 U.S.C. 923, WAS SEVERED
AND IS AWAITING TRIAL. 

/3/  "THE SEIZURE OF STOLEN GOODS IS AUTHORIZED BY THE COMMON LAW;
AND THE SEIZURE OF GOODS FORFEITED FOR A BREACH OF THE REVENUE LAWS, OR
CONCEALED TO AVOID THE DUTIES PAYABLE ON THEM, HAS BEEN AUTHORIZED BY
ENGLISH STATUTES FOR AT LEAST TWO CENTURIES PAST; AND THE LIKE SEIZURES
HAVE BEEN AUTHORIZED BY OUR OWN REVENUE ACTS FROM THE COMMENCEMENT OF
THE GOVERNMENT.  THE FIRST STATUTE PASSED BY CONGRESS TO REGULATE THE
COLLECTION OF DUTIES, THE ACT OF JULY 31, 1789, 1 STAT. 29, 43,
CONTAINS PROVISIONS TO THIS EFFECT.  AS THIS ACT WAS PASSED BY THE SAME
CONGRESS WHICH PROPOSED FOR ADOPTION THE ORIGINAL AMENDMENTS TO THE
CONSTITUTION, IT IS CLEAR THAT THE MEMBERS OF THAT BODY DID NOT REGARD
SEARCHES AND SEIZURES OF THIS KING AS 'UNREASONABLY,' AND THEY ARE NOT
EMBRACED WITHIN THE PROHIBITION OF THE AMENDMENT.  . . . (IN THE CASE
OF EXCISABLE OR DUTIABLE ARTICLES, THE GOVERNMENT HAS AN INTEREST IN
THEM FOR THE PAYMENT OF THE DUTIES THEREON, AND UNTIL SUCH DUTIES ARE
PAID HAS A RIGHT TO KEEP THEM UNDER OBSERVATION, OR TO PURSUE AND DRAG
THEM FROM CONCEALMENT."  116 U.S.,AT 623-624. 

/4/  CONGRESS HAS MADE IT A CRIME TO VIOLATE ANY PROVISION OF THE
GUN CONTROL ACT.  18 U.S.C. 924. 

MR. JUSTICE BLACKMUN, CONCURRING IN THE RESULT. 

HAD I BEEN A MEMBER OF THE COURT WHEN COLONNADE CATERING CORP. V.
UNITED STATES, 397 U.S. 72(1970), WAS DECIDED, I WOULD HAVE JOINED THE
RESPECTIVE DISSENTING OPINIONS OF MR. JUSTICE BLACK AND OF THE CHIEF
JUSTICE, 397 U.S.,AT 79 AND 77.  I THEREFORE CONCUR IN THE RESULT
HERE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

AS MR. JUSTICE CLARK, WRITING FOR THE THREE-JUDGE PANEL IN THE COURT
OF APPEALS FOR THE TENTH CIRCUIT SAID, THE FEDERAL GUN CONTROL ACT, 18
U.S.C. 923(G), HAS A PROVISION FOR INSPECTION THAT IS "ALMOST
IDENTICAL" WITH THE ONE IN COLONNADE CATERING CORP. V. UNITED STATES,
397 U.S. 72. 

THE PRESENT ONE PROVIDES: 

"THE SECRETARY MAY ENTER DURING BUSINESS HOURS THE PREMISES
(INCLUDING PLACES OF STORAGE) OF ANY FIREARMS OR AMMUNITION . . .
DEALER . . . FOR THE PURPOSE OF INSPECTING OR EXAMINING (1) ANY RECORDS
OR DOCUMENTS REQUIRED TO BE KEPT . . . AND (2) ANY FIREARMS OR
AMMUNITION KEPT OR STORED BY SUCH . . . DEALER.  . . . " 18 U.S.C.
923(G). 

THE ONE IN COLONNADE PROVIDED: 

     "THE SECRETARY OR HIS DELEGATE MAY ENTER DURING BUSINESS HOURS

  THE PREMISES . . . OF ANY DEALER FOR THE PURPOSE OF INSPECTING OR

  EXAMINING ANY RECORDS OR OTHER DOCUMENTS REQUIRED TO BE KEPT . .

  . UNDER THIS CHAPTER.  . . . " 26 U.S.C. 5146(B). 

THE COURT LEGITIMATES THIS INSPECTION SCHEME BECAUSE OF ITS BELIEF
THAT, HAD RESPONDENT BEEN A DEALER IN LIQUOR INSTEAD OF FIREARMS, SUCH
A SEARCH AS WAS HERE UNDERTAKEN WOULD HAVE BEEN VALID UNDER THE
PRINCIPLES OF COLONNADE.  I RESPECTFULLY DISAGREE.  COLONNADE, OF
COURSE, RESTED HEAVILY ON THE UNIQUE HISTORICAL ORIGINS OF GOVERNMENTAL
REGULATION OF LIQUOR.  AND THE COURT ADMITS THAT SIMILAR REGULATION OF
THE FIREARMS TRAFFIC "IS NOT AS DEEPLY ROOTED IN HISTORY AS IS
GOVERNMENTAL CONTROL OF THE LIQUOR INDUSTRY."  YET, ASSUMING, ARGUENDO,
THAT THE FIREARMS INDUSTRY IS AS APPROPRIATE A SUBJECT OF PERVASIVE
GOVERNMENTAL INSPECTION AS IS THE LIQUOR INDUSTRY, THE COURT ERRS. 
IN COLONNADE, WE AGREED THAT "CONGRESS HAS BROAD POWER TO DESIGN SUCH
POWERS OF INSPECTION UNDER THE LIQUOR LAWS AS IT DEEMS NECESSARY TO
MEET THE EVILS AT HAND."  397 U.S.,AT 76.  BUT WE ALSO SAID: 

     "WHERE CONGRESS HAS AUTHORIZED INSPECTION BUT MADE NO RULES

  GOVERNING THE PROCEDURE THAT INSPECTORS MUST FOLLOW, THE FOURTH

  AMENDMENT AND ITS VARIOUS RESTRICTIVE RULES APPLY."  ID., AT 77. 

HERE, THE STATUTE AUTHORIZING INSPECTION IS VIRTUALLY IDENTICAL TO THE
ONE WE CONSIDERED IN COLONNADE.  THE CONCLUSION NECESSARILY FOLLOWS
THAT CONGRESS, AS IN COLONNADE, HAS HERE "SELECTED A STANDARD THAT DOES
NOT INCLUDE FORCIBLE ENTRIES WITHOUT A WARRANT."  IBID. 

IN MY VIEW, A SEARCH CONDUCTED OVER THE OBJECTION OF THE OWNER OF
THE PREMISES SOUGHT TO BE SEARCHED IS "FORCIBLE," WHETHER OR NOT
VIOLENT MEANS ARE USED TO EFFECT THE SEARCH.  IN THIS CASE, THE OWNER
WITHDREW HIS OBJECTION UPON BEING SHOWN A COPY OF THE STATUTE
AUTHORIZING INSPECTION, SAYING:  "IF THAT IS THE LAW, I GUESS IT IS ALL
RIGHT."  IF UE APPLY THE TEST OF "CONSENT" THAT WE USED IN BUMPER V.
NORTH CAROLINA, 391 U.S. 543, WE WOULD AFFIRM THIS JUDGMENT, /1/  FOR
AS MR. JUSTICE STEWART, SPEAKING FOR THE COURT IN BUMPER, SAID: 

     "WHEN A PROSECUTOR SEEKS TO RELY UPON CONSENT TO JUSTIFY THE

  LAWFULNESS OF A SEARCH, HE HAS THE BURDEN OF PROVING THAT THE

  CONSENT WAS, IN FACT, FREELY AND VOLUNTARILY GIVEN.  THIS BURDEN

  CANNOT BE DISCHARGED BY SHOWING NO MORE THAN ACQUIESCENCE TO A

  CLAIM OF LAWFUL AUTHORITY.  A SEARCH CONDUCTED IN RELIANCE UPON A

  WARRANT CANNOT LATER BE JUSTIFIED ON THE BASIS OF CONSENT IF IT

  TURNS OUT THAT THE WARRANT WAS INVALID.  THE RESULT CAN BE NO

  DIFFERENT WHEN IT TURNS OUT THAT THE STATE DOES NOT EVEN ATTEMPT

  TO RELY UPON THE VALIDITY OF THE WARRANT, OR FAILS TO SHOW THAT

  THERE WAS, IN FACT, ANY WARRANT AT ALL. 

     "WHEN A LAW ENFORCEMENT OFFICER CLAIMS AUTHORITY TO SEARCH A

  HOME UNDER A WARRANT, HE ANNOUNCES IN EFFECT THAT THE OCCUPANT

  HAS NO RIGHT TO RESIST THE SEARCH.  THE SITUATION IS INSTINCT

  WITH COERCION-- ALBEIT COLORABLY LAWFUL COERCION.  WHERE THERE IS

COERCION THERE CANNOT BE CONSENT."  ID., AT 548-550. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  THE MAJORITY CONCLUDES THAT BUMPER IS "INAPPOSITE" TO THIS
CASE.  BUMPER HOLDS THAT AN OTHERWISE INVALID SEARCH IS NOT LEGITIMATED
BECAUSE OF THE OCCUPANT'S CONSENT TO A LAW ENFORCEMENT OFFICER'S
ASSERTION OF AUTHORITY.  BUMPER IS ONLY "INAPPOSITE" IF ONE HAS ALREADY
CONCLUDED THAT CONSENT IS IRRELEVANT TO THE VALIDITY OF THE SEARCH AT
ISSUE. 

R. KENT GREENWALT ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
PETERSEN, JEROME M. FEIT, BEATRICE ROSENBERG, AND KIRBY W. PATTERSON. 

WARREN F. REYNOLDS ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 

JOHN S. EDMUNDS AND MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :








ANDREWS V. LOUISVILLE & NASHVILLE R. CO., 406 U.S. 320 


       ANDREWS V. LOUISVILLE & NASHVILLE RAILROAD CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 71-300.  ARGUED MARCH 22, 1972-- DECIDED MAY 15, 1972 


PETITIONER, CLAIMING THAT HE WAS WRONGFULLY DISCHARGED FROM HIS
EMPLOYMENT BY RESPONDENT RAILROAD, FILED A STATE-COURT ACTION BASED ON
STATE LAW FOR BREACH OF CONTRACT.  THE SUIT WAS REMOVED TO FEDERAL
DISTRICT COURT WHICH DISMISSED THE COMPLAINT FOR FAILURE TO EXHAUST THE
REMEDIES PROVIDED BY THE RAILWAY LABOR ACT, AND THE COURT OF APPEALS
AFFIRMED.  HELD:  SINCE THE SOURCE OF PETITIONER'S RIGHT NOT TO BE
DISCHARGED AND OF HIS EMPLOYER'S OBLIGATION TO RESTORE HIM TO HIS
REGULAR EMPLOYMENT FOLLOWING AN INJURY IS THE COLLECTIVE-BARGAINING
AGREEMENT, PETITIONER MUST FOLLOW THE GRIEVANCE AND ARBITRATION
PROCEDURES SET FORTH IN THE RAILWAY LABOR ACT.  MOORE V. ILLINOIS
CENTRAL R. CO., 312 U.S. 630, OVERRULED, PP. 321-326. 

441 F.2D 1222, AFFIRMED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., BRENNAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 326.  POWELL, J.,
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT SUIT IN THE STATE TRIAL COURT OF GEORGIA SEEKING
DAMAGES FOR ALLEGED "WRONGFUL DISCHARGE" BY THE RESPONDENT.  /1/  HE
ALLEGED THAT PRIOR TO AN AUTO ACCIDENT IN 1967, HE HAD BEEN AN EMPLOYEE
IN GOOD STANDING OF THE RESPONDENT, EMPLOYED "UNDER SPECIFIED
CONDITIONS AND WITH A STIPULATED SCHEDULE OF BENEFITS."  HE ALLEGED
THAT FOLLOWING THE ACCIDENT, HE HAD FULLY RECOVERED AND WAS PHYSICALLY
ABLE TO RESUME HIS WORK FOR RESPONDENT, BUT THAT RESPONDENT HAD REFUSED
TO ALLOW HIM TO RETURN TO WORK, AND THAT RESPONDENT'S ACTIONS AMOUNTED
TO A WRONGFUL DISCHARGE.  HE PRAYED FOR DAMAGES CONSISTING OF LOSS OF
PAST AND FUTURE EARNINGS AND FOR ATTORNEYS' FEES.  RESPONDENT REMOVED
THE CASE TO THE UNITED STATES DISTRICT COURT AND THERE MOVED TO DISMISS
THE COMPLAINT FOR FAILURE TO EXHAUST THE REMEDIES PROVIDED BY THE SEC.
3 FIRST (I) OF THE RAILWAY LABOR ACT, 44 STAT. 579, AS AMENDED, 48
STAT. 1191, 45 U.S.C. SEC. 153 FIRST (I).  SEE ALSO 1966 AMENDMENTS TO
SEC. 3 SECOND, 80 STAT. 208.  THE DISTRICT COURT GRANTED THE MOTION,
AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  WE GRANTED
CERTIORARI, 404 U.S. 955, AND ARE ONCE MORE CONFRONTED WITH THE
QUESTION OF WHETHER MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S.
630(1941), SHOULD BE OVERRULED. 

MOORE HELD THAT A RAILROAD EMPLOYEE WHO ELECTED TO TREAT HIS
EMPLOYER'S BREACH OF EMPLOYMENT CONTRACT AS A DISCHARGE WAS NOT
REQUIRED TO RESORT TO THE REMEDIES AFFORDED UNDER THE RAILWAY LABOR ACT
FOR ADJUSTMENT AND ARBITRATION OF GRIEVANCES, BUT WAS FREE TO COMMENCE
IN STATE COURT AN ACTION BASED ON STATE LAW FOR BREACH OF CONTRACT. 
THE RESULT WAS SUPPORTED BY THE COURT'S CONCLUSION THAT THE PROCEDURES
FOR ADJUSTMENT OF "MINOR DISPUTES" UNDER THE RAILWAY LABOR ACT HAD BEEN
INTENDED BY CONGRESS TO BE OPTIONAL, NOT COMPULSORY, AND THAT THEREFORE
A STATE WAS FREE TO ACCORD AN ALTERNATIVE REMEDY TO A DISCHARGED
RAILROAD EMPLOYEE UNDER ITS LAW OF CONTRACTS.  THE BASIC HOLDING OF
MOORE WAS REAFFIRMED AND ITS STATE LAW ASPECTS AMPLIFIED IN
TRANSCONTINENTAL & WESTERN AIR, INC. V. KOPPAL, 345 U.S. 653(1953). 
THERE IT WAS HELD THAT IF STATE LAW REQUIRED THE EMPLOYEE TO EXHAUST
ADMINISTRATIVE REMEDIES PROVIDED FOR IN HIS CONTRACT OF EMPLOYMENT
BEFORE RESORTING TO COURT, A FEDERAL DIVERSITY COURT SHOULD ENFORCE
THAT REQUIREMENT. 

LATER CASES FROM THIS COURT HAVE REPUDIATED THE REASONING ADVANCED
IN SUPPORT OF THE RESULT REACHED IN MOORE V. ILLINOIS CENTRAL, SUPRA.
FIFTEEN YEARS AGO, IN BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO R. &
I.R. CO., 353 U.S. 30, 39(1957), THIS COURT CANVASSED THE RELEVANT
LEGISLATIVE HISTORY AND SAID: 

     "THIS RECORD IS CONVINCING THAT THERE WAS GENERAL
UNDERSTANDING

  BETWEEN BOTH THE SUPPORTERS AND THE OPPONENTS OF THE 1934

AMENDMENT THAT THE PROVISIONS DEALING WITH THE ADJUSTMENT BOARD

  WERE TO BE CONSIDERED AS COMPULSORY ARBITRATION IN THIS LIMITED

  FIELD." 

WHEN THE ISSUE WAS AGAIN BEFORE THE COURT IN WALKER V. SOUTHERN R.
CO., 385 U.S. 196(1966), IT WAS OBSERVED: 

     "PROVISION FOR ARBITRATION OF A DISCHARGE GRIEVANCE, A MINOR

  DISPUTE, IS NOT A MATTER OF VOLUNTARY AGREEMENT UNDER THE RAILWAY

  LABOR ACT; THE ACT COMPELS THE PARTIES TO ARBITRATE MINOR

  DISPUTES BEFORE THE NATIONAL RAILROAD ADJUSTMENT BOARD

  ESTABLISHED UNDER THE ACT."  385 U.S.,AT 198. 

THUS, THE NOTION THAT THE GRIEVANCE AND ARBITRATION PROCEDURES
PROVIDED FOR MINOR DISPUTES IN THE RAILWAY LABOR ACT ARE OPTIONAL, TO
BE AVAILED OF AS THE EMPLOYEE OR THE CARRIER CHOOSES, WAS NEVER GOOD
HISTORY AND IS NO LONGER GOOD LAW. 

THE RELATED DOCTRINE EXPRESSED IN MOORE AND KOPPAL, THAT A RAILROAD
EMPLOYEE'S ACTION FOR BREACH OF AN EMPLOYMENT CONTRACT IS CREATED AND
GOVERNED BY STATE LAW, HAS BEEN LIKEWISE UNDERCUT BY LATER DECISIONS. 
IN MACHINISTS V. CENTRAL AIRLINES, 372 U.S. 682(1963), AN AGREEMENT
REQUIRED UNDER SEC. 204 OF THE RAILWAY LABOR ACT WAS SAID TO BE "LIKE
THE LABOR MANAGEMENT RELATIONS ACT SEC. 301 CONTRACT . . . A FEDERAL
CONTRACT AND . . . THEREFORE GOVERNED AND ENFORCEABLE BY FEDERAL LAW,
IN THE FEDERAL COURTS."  372 U.S.,AT 692.  A SIMILAR RESULT WAS REACHED
UNDER SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT IN TEXTILE
WORKERS V. LINCOLN MILLS, 353 U.S. 448(1957). 

IN REPUBLIC STEEL CORP. V. MADDOX, 379 U.S. 650(1965), THE COURT
DEDUCED FROM THE LABOR MANAGEMENT RELATIONS ACT A PREFERENCE FOR THE
SETTLEMENT OF DISPUTES IN ACCORDANCE WITH CONTRACTUALLY AGREED-UPON
ARBITRATION PROCEDURES.  IT ACCORDINGLY HELD THAT BEFORE A STATE COURT
ACTION COULD BE MAINTAINED FOR BREACH OF SUCH A CONTRACT, THE EMPLOYEE
MUST FIRST "ATTEMPT USE OF THE CONTRACT GRIEVANCE PROCEDURE AGREED UPON
BY EMPLOYER AND UNION AS THE MODE OF REDRESS."  379 U.S.,AT 652.  IN
MADDOX, THE COURT NOT ONLY REFUSED TO EXTEND MOORE TO SAVE STATE COURT
ACTIONS FOR BREACH OF CONTRACT UNDER SEC. 301 OF THE LABOR MANAGEMENT
RELATIONS ACT, BUT INTIMATED THAT ITS RULE MIGHT WELL NOT SURVIVE EVEN
IN RAILWAY LABOR ACT FOR DISPUTES SUCH AS THAT BETWEEN PETITIONER AND
RESPONDENT STEMS NOT FROM ANY CONTRACTUAL UNDERTAKING BETWEEN THE
PARTIES BUT FROM THE ACT ITSELF, THE CASE FOR INSISTING ON RESORT TO
THOSE REMEDIES IS IF ANYTHING STRONGER IN CASES ARISING UNDER THAT ACT
THAN IT IS IN CASES ARISING UNDER SEC. 301 OF THE LMRA. 

THE FACT THAT PETITIONER CHARACTERIZES HIS CLAIM AS ONE FOR
"WRONGFUL DISCHARGE" DOES NOT SAVE IT FROM THE ACT'S MANDATORY
PROVISIONS FOR THE PROCESSING OF GRIEVANCES.  PETITIONER ARGUES THAT
HIS ELECTION TO SEVER HIS CONNECTION WITH THE EMPLOYER AND TREAT THE
LATTER'S ALLEGED BREACH OF THE EMPLOYMENT CONTRACT AS A "DISCHARGE"
RENDERS HIS CLAIM SUFFICIENTLY DIFFERENT FROM THE NORMAL DISPUTES OVER
THE INTERPRETATION OF A COLLECTIVE-BARGAINING AGREEMENT TO WARRANT
CARVING OUT AN EXCEPTION TO THE OTHERWISE MANDATORY RULE FOR THE
SUBMISSION OF DISPUTES TO THE BOARD.  BUT THE VERY CONCEPT OF "WRONGFUL
DISCHARGE" IMPLIES SOME SORT OF STATUTORY OR CONTRACTUAL STANDARD THAT
MODIFIES THE TRADITIONAL COMMON-LAW RULE THAT A CONTRACT OF EMPLOYMENT
IS TERMINABLE BY EITHER PARTY AT WILL.  HERE IT IS CONCEDED BY ALL THAT
THE ONLY SOURCE OF PETITIONER'S RIGHT NOT TO BE DISCHARGED, AND
THEREFORE TO TREAT AN ALLEGED DISCHARGE AS A "WRONGFUL" ONE THAT
ENTITLES HIM TO DAMAGES, IS THE COLLECTIVE-BARGAINING AGREEMENT BETWEEN
THE EMPLOYER AND THE UNION.  RESPONDENT IN THIS CASE VIGOROUSLY
DISPUTES ANY INTENT ON ITS PART TO DISCHARGE PETITIONER, AND THE
PLEADINGS INDICATE THAT THE DISAGREEMENT TURNS ON THE EXTENT OF
RESPONDENT'S OBLIGATION TO RESTORE PETITIONER TO HIS REGULAR DUTIES
FOLLOWING INJURY IN AN AUTOMOBILE ACCIDENT.  THE EXISTENCE AND EXTENT
OF SUCH AN OBLIGATION IN A CASE SUCH AS THIS WILL DEPEND ON THE
INTERPRETATION OF THE COLLECTIVE-BARGAINING AGREEMENT.  THUS
PETITIONER'S CLAIM, AND RESPONDENT'S DISALLOWANCE OF IT, STEM FROM
DIFFERING INTERPRETATIONS OF THE COLLECTIVE-BARGAINING AGREEMENT.  THE
FACT THAT PETITIONER INTENDS TO HEREAFTER SEEK EMPLOYMENT ELSEWHERE
DOES NOT MAKE HIS PRESENT CLAIM AGAINST HIS EMPLOYER ANY THE LESS A
DISPUTE AS TO THE INTERPRETATION OF A COLLECTIVE-BARGAINING AGREEMENT. 
HIS CLAIM IS THEREFORE SUBJECT TO THE ACT'S REQUIREMENT THAT IT BE
SUBMITTED TO THE BOARD FOR ADJUSTMENT. 

THE CONSTITUTIONAL ISSUE DISCUSSED IN THE DISSENT WAS NOT SET FORTH
AS A "QUESTION PRESENTED FOR REVIEW" IN THE PETITION FOR CERTIORARI,
AND THEREFORE OUR RULE 23(1)(C) PRECLUDES OUR CONSIDERATION OF IT.  "WE
DO NOT REACH FOR CONSTITUTIONAL QUESTIONS NOT RAISED BY THE PARTIES." 
MAZER V. STEIN, 347 U.S. 201, 206 N. 5(1954). 

THE TERM "EXHAUSTION OF ADMINISTRATIVE REMEDIES" IN ITS BROADER
SENSE MAY BE AN ENTIRELY APPROPRIATE DESCRIPTION OF THE OBLIGATION OF
BOTH THE EMPLOYEE AND CARRIER UNDER THE RAILWAY LABOR ACT TO RESORT TO
DISPUTE SETTLEMENT PROCEDURES PROVIDED BY THAT ACT.  IT IS CLEAR,
HOWEVER, THAT IN AT LEAST SOME SITUATIONS THE ACT MAKES THE FEDERAL
ADMINISTRATIVE REMEDY EXCLUSIVE, RATHER THAN MERELY REQUIRING
EXHAUSTION OF REMEDIES IN ONE FORUM BEFORE RESORTING TO ANOTHER.  A
PARTY WHO HAS LITIGATED AN ISSUE BEFORE THE ADJUSTMENT BOARD ON THE
MERITS MAY NOT RELITIGATE THAT ISSUE IN AN INDEPENDENT JUDICIAL
PROCEEDING.  UNION PACIFIC R. CO. V. PRICE, 360 U.S. 601(1959).  HE IS
LIMITED TO THE JUDICIAL REVIEW OF THE BOARD'S PROCEEDINGS THAT THE ACT
ITSELF PROVIDES.  GUNTHER V. SAN DIEGO & A.E.R. CO., 382 U.S.
257(1965).  IN SUCH A CASE THE PROCEEDINGS AFFORDED BY 45 U.S.C. 153
FIRST (I), WILL BE THE ONLY REMEDY AVAILABLE TO THE AGGRIEVED PARTY. 

IN WALKER V. SOUTHERN R. CO., 385 U.S. 196(1966), THE COURT NOTED
THAT THERE HAD BEEN COMPLAINTS NOT ONLY ABOUT THE LONG DELAY IN
PROCESSING OF GRIEVANCES ON THE PART OF THE ADJUSTMENT BOARDS, BUT ALSO
ABOUT THE FACT THAT A MORE EXTENSIVE RIGHT OF JUDICIAL REVIEW OF BOARD
ACTION WAS ACCORDED TO CARRIERS THAN TO EMPLOYEES.  THE COURT NOTED
THAT CONGRESS, BY PUBLIC LAW 89-456, 80 STAT. 208, EFFECTIVE JUNE 20,
1966, HAD LEGISLATED TO CORRECT THESE DIFFICULTIES, BUT OBSERVED THAT
THE EMPLOYEE IN WALKER HAD NOT HAD THE BENEFIT OF THESE NEW
PROCEDURES.  IT THEREFORE DECLINED, "IN THIS CASE," 385 U.S.,AT 199, TO
OVERRULE MOORE.  PETITIONER ANDREWS, HOWEVER, WOULD IN THE PROSECUTION
OF HIS CLAIM BEFORE THE ADJUSTMENT BOARD HAVE THE BENEFIT OF THESE
IMPROVED PROCEDURES.  WE NOW HOLD THAT HE MUST AVAIL HIMSELF OF THEM,
AND IN SO DOING WE NECESSARILY OVERRULE MOORE V. ILLINOIS CENTRAL R.
CO., SUPRA.

AFFIRMED. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

/1/  REFERENCES THROUGHOUT THE OPINION TO RESPONDENT ARE TO THE
GEORGIA RAILROAD CO., WHICH CONSISTED OF PROPERTIES LEASED BY
LOUISVILLE & NASHVILLE RAILROAD CO. AND SEABOARD COASTLINE RAILROAD CO.
THE PETITIONER ALLEGED IN HIS COMPLAINT THAT THE GEORGIA RAILROAD CO.
HAD REFUSED TO ALLOW HIM TO RETURN TO WORK. 

MR. JUSTICE DOUGLAS, DISSENTING. 

        I 

IF THIS EMPLOYEE WANTED REINSTATEMENT AND BACK PAY, THERE WOULD BE
MERIT IN REMITTING HIM TO THE REMEDIES UNDER THE RAILWAY LABOR ACT. 
BUT HE DOES NOT WANT THAT RELIEF.  RATHER, HE DESIRES TO QUIT THE
RAILROAD, TO HAVE NO FURTHER JOBS WITH IT, AND TO BE COMPENSATED IN
DOLLARS FOR HIS WRONGFUL DISCHARGE. 

THE CASES ON WHICH THE COURT RELIES TO OVERRULE MOORE V. ILLINOIS
CENTRAL R. CO., 312 U.S. 630, ARE QUITE DIFFERENT.  BROTHERHOOD OF
RAILROAD TRAINMEN V. CHICAGO R. & I.R. CO., 353 U.S. 30, INVOLVED
CLAIMS OF EXISTING EMPLOYEES, NOT FOR DAMAGES FOR WRONGFUL DISCHARGE,
BUT FOR "ADDITIONAL COMPENSATION" AND FOR "REINSTATEMENT," AND INVOLVED
A "MINOR" DISPUTE, THAT IS, A CONTROVERSY "OVER THE MEANING OF AN
EXISTING COLLECTIVE BARGAINING AGREEMENT."  ID., AT 32-33.  MACHINISTS
V. CENTRAL AIRLINES, 372 U.S. 682, ALSO INVOLVED REINSTATEMENT "WITHOUT
LOSS OF SENIORITY AND WITH BACK PAY."  ID., AT 683.  IN REPUBLIC STEEL
CORP. V. MADDOX, 379 U.S. 650, THE AGGRIEVED EMPLOYEE WANTED "SEVERANCE
PAY" ALLEGEDLY OWED UNDER THE COLLECTIVE-BARGAINING AGREEMENT.  ID., AT
650-651.  IN WALKER V. SOUTHERN R. CO., 385 U.S. 196, THE DISPUTE
BASICALLY INVOLVED AN ISSUE OF SENIORITY, THOUGH THE OPINION DOES NOT
DISCLOSE IT.  /1/ 

THE COMPLAINT IN THIS CASE ALLEGES THAT FOLLOWING AN AUTOMOBILE
ACCIDENT, IN WHICH THE PETITIONER-EMPLOYEE WAS INVOLVED, THE COMPANY
REFUSED TO ALLOW HIM TO GO TO WORK ON THE GROUND HE HAD NOT RECOVERED
SUFFICIENTLY TO PERFORM HIS FORMER DUTIES.  NO ISSUE INVOLVING THE
COLLECTIVE-BARGAINING AGREEMENT WAS TENDERED.  PETITIONER-- RIGHTLY OR
WRONGLY-- CLAIMED THIS WAS A DISCHARGE AND THAT UNDER GEORGIA LAW,
GOVERNING THE PLACE WHERE HE WORKED, HE HAD BEEN DEPRIVED OF WAGES FROM
THE TIME HE RECOVERED FROM THE ACCIDENT, AND THAT HE WAS DEPRIVED "OF
THE EXPECTANCY OF FUTURE EARNINGS . . . UNTIL THE DATE OF HIS SCHEDULED
RETIREMENT." 

IN OTHER WORDS, HE ASKS FOR NO RELIEF UNDER THE COLLECTIVE
AGREEMENT, HE DOES NOT ASK FOR REINSTATEMENT OR SEVERANCE PAY, HE DOES
NOT ASK FOR CONTINUED EMPLOYMENT.  HE IS FINISHED WITH THIS RAILROAD,
AND TURNS TO OTHER ACTIVITIES; HE SEEKS NO READMISSION TO THE
COLLECTIVE GROUP THAT WORKS FOR THE RAILROAD.  HE LEAVES IT COMPLETELY
AND SEEKS DAMAGES FOR HAVING BEEN FORCED OUT.  /2/ 

TO REMIT HIM TO THE NATIONAL RAILROAD ADJUSTMENT BOARD IS TO REMIT
HIM TO AN AGENCY THAT HAS NO POWER TO ACT ON THIS CLAIM.  WE SAID AS
MUCH IN SLOCUM V. DELAWARE, L. & W.R. CO., 339 U.S. 239.  THAT CASE
INVOLVED A GRIEVANCE THAT "CONCERNED INTERPRETATION OF AN EXISTING
BARGAINING AGREEMENT."  ID., AT 242.  WE THEREFORE HELD THAT THE
EMPLOYEE FIRST HAD TO EXHAUST HIS REMEDIES BEFORE THE ADJUSTMENT
BOARD.  WE DISTINGUISHED THE CASE FROM MOORE AS FOLLOWS: 

     "OUR HOLDING HERE IS NOT INCONSISTENT WITH OUR HOLDING IN
MOORE

  V. ILLINOIS CENTRAL R. CO., 312 U.S. 630.  MOORE 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."  339 U.S.,AT

  244. 

THE ADJUSTMENT BOARD HAS CONSIDERABLE EXPERTISE IN CONSTRUING AND
APPLYING COLLECTIVE-BARGAINING AGREEMENTS, AS RESPECTS SEVERANCE PAY,
SENIORITY, DISCIPLINARY ACTIONS BY MANAGEMENT, AND THE VARIOUS ASPECTS
OF REINSTATEMENT.  BUT THE BODY OF LAW GOVERNING THE DISCHARGE OF
EMPLOYEES WHO DO NOT WANT OR SEEK REINSTATEMENT IS NOT FOUND IN CUSTOMS
OF THE SHOP OR IN THE COLLECTIVE AGREEMENT BUT IN THE LAW OF THE PLACE
WHERE THE EMPLOYEE WORKS.  THE ADJUSTMENT BOARD IS NOT COMPETENT TO
APPLY THAT LAW.  IN THE FIRST PLACE THE MEMBERS OF THE FOUR DIVISIONS
OF THE ADJUSTMENT BOARD AUTHORIZED BY 45 U.S.C. 153 FIRST (B)
PRESUMABLY DO NOT KNOW THE LOCAL LAW GOVERNING THE EMPLOYEE-EMPLOYER
RELATIONSHIPS IN ALL OF THE STATES WHERE RAILROADS RUN.  IN THE SECOND
PLACE, THE PERSONNEL OF THESE DIVISIONS OF THE ADJUSTMENT BOARD MAY
OCCASIONALLY HAVE LAWYERS ON THEM BUT LAW-TRAINED MEMBERS ARE THE
EXCEPTION, NOT THE RULE.  IN THE THIRD PLACE, AN EMPLOYEE SEEKING
DAMAGES FOR REINSTATEMENT IS NORMALLY ENTITLED TO A JURY TRIAL; AND NO
DIVISION OF THE ADJUSTMENT BOARD EVER PRETENDS TO SERVE IN THAT ROLE. 

THE BOARD, WE NOW KNOW, IS MADE UP OF LAYMEN; THOSE LAYMEN HAVE NO
INSIGHT INTO THE NUANCES OF GEORGIA LAW ON THE QUESTION OF DAMAGES, AND
THEY OBVIOUSLY CANNOT EVEN PURPORT TO GIVE THE REMEDY IN DAMAGES WHICH
A "COURT SUIT" ENTAILS. 

THE REGIME OF MEDIATION AND ARBITRATION UNDER COLLECTIVE-BARGAINING
AGREEMENTS, SUCH AS THE ONE WE UPHELD IN TEXTILE WORKERS V. LINCOLN
MILLS, 353 U.S. 448, AND THOSE WE HAVE CITED UNDER THE RAILWAY LABOR
ACT, ARE IMPORTANT IN STABILIZING RELATIONS BETWEEN UNIONS AND
EMPLOYERS.  SEE U.S. BULK CARRIERS V. ARGUELLES, 400 U.S. 351, 355
356.  BUT WHERE THE COLLECTIVE-BARGAINING AGREEMENT IS NOT DIRECTLY
INVOLVED, AND CERTAINLY WHERE THE INDIVIDUAL EMPLOYEE, WHO TENDERS HIS
GRIEVANCE, WANTS TO QUIT THE RAILROAD SCENE AND GO ELSEWHERE AND SEVER
HIS COMMUNAL RELATION WITH UNION AND RAILROAD, THE CASE FALLS OUT OF
THE AMBIT OF AUTHORITY GIVEN TO THE MEDIATION OR ARBITRATION AGENCIES. 

THE COURTHOUSE IS THE FORUM FOR THAT LITIGANT AND I WOULD NEVER
CLOSE ITS DOOR TO HIM, UNLESS THE MANDATE OF CONGRESS WERE CLEAR.  EVEN
THEN I DO NOT SEE HOW THE SEVENTH AMENDMENT COULD BE CIRCUMVENTED:  "IN
SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED TWENTY
DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED." 

THOUGH THE CASE IS IN THE FEDERAL COURTS, THIS EMPLOYEE SUES TO
ENFORCE A COMMON-LAW RIGHT RECOGNIZED BY THE STATE OF GEORGIA.  THE
ONLY PLACE HE CAN GET A TRIAL BY JURY IS IN A COURT.  IF HE SUES UNDER
A COLLECTIVE-BARGAINING AGREEMENT, HE DOES NOT SUE AT COMMON LAW BUT
UNDER A STATUTORY FEDERAL REGIME.  YET THAT IS NOT THIS CASE. 

EVERYONE WHO JOINS A UNION DOES NOT GIVE UP HIS CIVIL RIGHTS.  IF HE
WANTS TO LEAVE THE COMMUNE AND ASSERT HIS COMMON-LAW RIGHTS, I HAD
SUPPOSED THAT NO ONE COULD STOP HIM.  I THINK IT IMPORTANT UNDER OUR
CONSTITUTIONAL REGIME TO LEAVE AS MUCH INITIATIVE AS POSSIBLE TO THE
INDIVIDUAL.  WHAT THE COURT DOES TODAY IS RUTHLESSLY TO REGIMENT A
WORKER AND FORCE HIM TO SACRIFICE HIS CONSTITUTIONAL RIGHTS IN FAVOR OF
A UNION.  I WOULD GIVE HIM A CHOICE TO PURSUE SUCH RIGHTS AS HE HAS
UNDER THE COLLECTIVE AGREEMENT AND STAY WITH THE UNION, /3/  OR TO QUIT
IT AND THE RAILROAD AND FREE HIMSELF FROM A REGIME WHICH HE FINDS
OPPRESSIVE.  I WOULD CONSTRUE THE FEDERAL LAW AS GIVING THE EMPLOYEE
THAT CHOICE.  THE CHOICE IMPOSED BY THE COURT TODAY RAISES SERIOUS
CONSTITUTIONAL QUESTIONS /4/  ON WHICH WE HAVE NOT HAD THE BENEFIT OF
ANY ARGUMENT. 

THIS IS A PLAIN, ORDINARY, COMMON-LAW SUIT NOT DEPENDENT ON ANY TERM
OR PROVISION OF A COLLECTIVE-BARGAINING AGREEMENT.  I CANNOT,
THEREFORE, JOIN THOSE WHO WOULD CLOSE THE COURTHOUSE DOOR TO HIM. 
UNDER THE FIRST AMENDMENT, AS APPLIED TO THE STATES BY THE FOURTEENTH,
HE IS PETITIONING THE GOVERNMENT "FOR A REDRESS OF GRIEVANCES" IN THE
TRADITIONAL MANNER OF SUITORS AT COMMON LAW; AND BY THE SEVENTH
AMENDMENT IS ENTITLED TO A JURY TRIAL. 

   II 

AS NOTED, MY BASIC DISAGREEMENTS WITH THE MAJORITY CONCERN THE
VALIDITY OF THE TWO ASSUMPTIONS IMPLICIT IN ITS HOLDING:  (A) THAT THE
COLLECTIVE AGREEMENT WILL BE SUFFICIENTLY IMPLICATED IN THIS DISPUTE TO
WARRANT THE APPLICATION OF FEDERAL SUBSTANTIVE LAW, AND (B) THAT
CONGRESS HAS VESTED THE BOARD WITH JURISDICTION TO ENTERTAIN
NONREINSTATEMENT GRIEVANCES SUCH AS ANDREWS' COMPLAINT.  BUT, EVEN
TAKING THESE ASSUMPTIONS AS CORRECT FOR PURPOSES OF ARGUMENT, I BELIEVE
THE COURT HAS ERRED. 

THE MAJORITY DOES NOT HOLD THAT CONGRESS HAS MANDATED THAT THE
STATUTORY PROCEDURE BE THE EXCLUSIVE ROUTE FOR ADJUSTING ANDREWS'
GRIEVANCE.  INDEED, THAT PATH WAS FORECLOSED BY OUR DECISION IN WALKER
V. SOUTHERN R. CO., 385 U.S. 196, HOLDING THAT PRIOR TO THE 1966
AMENDMENTS CONGRESS HAD EVINCED NO SUCH PURPOSE, AND BY THE FACT THAT
NOTHING IN THE 1966 AMENDMENTS THEMSELVES EVIDENCES AS INTENTION TO
RENDER THE STATUTORY CHANNEL EXCLUSIVE FOR NONREINSTATEMENT CLAIMS. 
/5/  RATHER, TODAY'S RESULT IS GROUNDED IN THE AUTHORITY OF THE FEDERAL
COURTS TO FASHION THE SUBSTANTIVE LAW TO BE APPLIED TO COLLECTIVE
AGREEMENTS.  MACHINISTS V. CENTRAL AIRLINES, 372 U.S. 682, 695; SEE
ALSO TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448.  EVEN UNDER THAT
ASSUMPTION, I WOULD NOT IMPOSE THE EXHAUSTION REQUIREMENT UPON THIS
NARROW AND READILY IDENTIFIABLE GROUP OF DISCHARGEES. 

THERE IS NO EQUATION OF THE SUBSTANTIVE LAW TO GOVERN AGREEMENTS
UNDER SEC. 301 OF THE LABOR MANAGEMENT RELATIONS ACT, INTO WHICH
EXCLUSIVE ARBITRATION CLAUSES MAY VOLUNTARILY BE INSERTED BY THE
PARTIES AND THE SUBSTANTIVE LAW TO GOVERN RAILROAD CONTRACTS, ONTO
WHICH THE STATUTORY GRIEVANCE PROCEDURE IS SUPERIMPOSED BY LAW.  ONE
WOULD NOT SUPPOSE THAT EVERY DOCTRINE DEVELOPED UNDER THE LABOR
MANAGEMENT RELATIONS ACT, 61 STAT. 136, SHOULD BE CARRIED OVER INTO THE
APPARATUS CREATED BY THE RAILWAY LABOR ACT.  A SALUTARY DOCTRINE UNDER
ONE MEASURE MAY SERVE NO WORTHWHILE PURPOSE UNDER THE OTHER.  YET TODAY
THE MAJORITY TRANSPLANTS THE MADDOX RULE IN THE FOREIGN SOIL OF THE
RAILROAD WORLD WITHOUT ANY DISCUSSION OF THE ENDS TO BE SERVED.  EVEN
MADDOX CAUTIONED AGAINST THAT RESULT, STATING THAT ANY OVERRULING OF
MOORE SHOULD COME ONLY AFTER "THE VARIOUS DISTINCTIVE FEATURES OF THE
ADMINISTRATIVE REMEDIES PROVIDED BY (THE RAILWAY LABOR) ACT CAN BE
APPRAISED IN CONTEXT, E.G., THE MAKE-UP OF THE ADJUSTMENT BOARD, THE
SCOPE OF REVIEW FROM MONETARY AWARDS, AND THE ABILITY OF THE BOARD TO
GIVE THE SAME REMEDIES AS COULD BE OBTAINED BY COURT SUIT."  379
U.S.,AT 657 N. 14. 

IT IS SAID THAT THE FACT THAT CONGRESS (RATHER THAN PRIVATE PARTIES
AS IN MADDOX) FASHIONED THE INSTANT ADJUSTMENT PROCEDURE SOMEHOW
REINFORCES A PRESUMPTION OF EXCLUSIVITY.  YET IT IS DIFFICULT TO
PERCEIVE HOW THAT CAN BE WHEN IT IS ALSO CONCEDED, AS MENTIONED
EARLIER, THAT CONGRESS ITSELF HAS NEVER DESIGNED ITS PRESCRIPTION TO BE
THE SOLE AVENUE OF REDRESS FOR THIS LIMITED CLASS OF CLAIMANTS. 
RATHER, THE SIGNIFICANCE OF THE STATUTORY SOURCE OF THIS PROCEDURE LIES
IN ITS INFLEXIBILITY AND IMMUNITY FROM MODIFICATION THROUGH COLLECTIVE
BARGAINING.  UNLIKE THE MADDOX RULE, WHAT IS DONE TODAY CANNOT BE
UNDONE TOMORROW THROUGH CONTRACT NEGOTIATION.  /6/  THAT DIFFERENCE
WOULD SEEM TO WARRANT CAUTION TO ENSURE THAT MORE IS TO BE GAINED THAN
LOST BY CLOSING THE COURTHOUSE DOOR. 

ONE CLEAR DISADVANTAGE COUNSELS AGAINST TODAY'S HOLDING.  GIVEN THE
NATURE OF PERMANENT DISCHARGEES' WEAK POSITIONS VIS-A-VIS THEIR FORMER
UNIONS, THE PERSONNEL MANNING THE ADJUSTMENT MECHANISM, ITS HAPHAZARD
DECISIONAL PROCESS, AND THE ABSENCE OF JUDICIAL REVIEW OF BOARD
DECISIONS, THE RISK IS SUBSTANTIAL THAT VALID COMPLAINTS OF PERMANENT
DISCHARGEES SUCH AS ANDREWS WILL BE UNFAIRLY TREATED. 

THE MACHINERY ERECTED BY THE RAILWAY LABOR ACT WAS NOT MEANT TO BE
JUDICIAL IN NATURE.  RATHER, IT WAS DESIGNED AS AN ARBITRATION PROCESS
IN WHICH THE UNION AND THE CARRIER OCCUPY OPPOSITE SIDES OF A
BARGAINING TABLE.  AS A SUBSTITUTE FOR THE ECONOMIC BATTLEGROUND, THE
PROCESS ENVISIONS DECISIONMAKING ON THE BASIS OF STRENGTH AND
ACCOUNTABILITY TO THE INTERESTS REPRESENTED.  UNIONS WILL OFTEN PRESS
ONE GRIEVANCE AT THE EXPENSE OF ANOTHER.  IF ANDREWS WERE A CONTINUING
UNION MEMBER PERHAPS HE WOULD RECEIVE EQUAL REPRESENTATION.  BUT
BECAUSE THE UNION WILL NOT HAVE TO ANSWER TO HIM IF HIS CLAIM IS LOST
THE UNION MAY YIELD ITS MERIT IN THE LOGROLLING PROCESS CARRIED ON WITH
MANAGEMENT.  I NOW HAVE DOUBT THAT THE REASONING OF MADDOX WAS SOUND
INSOFAR AS WE OPINED THAT A UNION AGENT WILL HAVE SUFFICIENT INTEREST
IN FAITHFULLY PROSECUTING THE COMPLAINT OF A FORMER MEMBER WHO "HAS
LOST HIS JOB AND IS MOST LIKELY OUTSIDE THE UNION DOOR LOOKING IN
INSTEAD OF ON HAND TO PUSH FOR HIS CLAIM."  379 U.S.,AT 653 (MAJORITY
OPINION), AND 668 (BLACK, J., DISSENTING).  INDEED, ONLY THIS TERM IN
CHEMICAL WORKERS V. PITTSBURGH GLASS, 404 U.S. 157, WE REFUSED TO
PERMIT A UNION TO REPRESENT NONVOTING PENSIONERS, HOLDING THAT UNDER
THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, AS AMENDED, 29 U.S.C.
151 ET SEQ., THE COMPANY WAS NOT REQUIRED TO BARGAIN WITH RESPECT TO
PENSION PLANS AFFECTING INACTIVE RETIREES.  WE REASONED THAT "THE RISK
CANNOT BE OVERLOOKED THAT UNION REPRESENTATIVES ON OCCASION MIGHT SEE
FIT TO BARGAIN FOR IMPROVED WAGES OR OTHER CONDITIONS FAVORING ACTIVE
EMPLOYEES AT THE EXPENSE OF RETIREES' BENEFITS."  /7/  ID., AT 173. 

BEYOND THE INHERENT RISK OF COMPROMISE OF A DISCHARGEE'S CLAIM THERE
LIE STILL FURTHER OBSTACLES TO FAIR TREATMENT.  FIRST, THE INTERNAL
PROCEDURES USED BY THE BOARD ARE FAR AFIELD FROM THOSE NORMALLY
ASSOCIATED WITH IMPARTIAL ADJUDICATION.  THE BOARD IS EXEMPT FROM THE
ADMINISTRATIVE PROCEDURE ACT, SEC. 2(A)(1), 5 U.S.C. 551(1).  ONE
ACCOUNT OF ITS AD HOC PROCEDURES LEAVES LITTLE DOUBT THAT BEFORE THAT
FORUM ANDREWS WILL HAVE NO MEANS OF PROVING HIS ALLEGATIONS: 

     "AS THE BOARD HAS OPERATED IN PRACTICE, THE PROCEDURES
FOLLOWED

  IN HOLDING HEARINGS HAVE BEEN QUITE INFORMAL AND HAVE DIFFERED

  FROM THE TRIAL-TYPE HEARINGS CONDUCTED BY OTHER AGENCIES

  ESTABLISHED AND MAINTAINED BY THE FEDERAL GOVERNMENT.  DISPUTES

  ARE REFERRED TO THE ADJUSTMENT BOARD BY THE FILING OF WRITTEN

  SUBMISSIONS.  EACH SUBMISSION CONTAINS A STATEMENT OF CLAIM,

ACCOMPANIED BY A STATEMENT OF FACTS.  IF THE PARTIES CAN AGREE, A

  JOINT STATEMENT OF FACTS IS FILED; IF THEY CANNOT AGREE, SEPARATE

  SUBMISSIONS ARE FILED, STATING THE FACTS SEPARATELY.  ALL

  SUBMISSIONS ARE IN WRITING.  PARTIES MAY BE HEARD IN PERSON, BY

  COUNSEL, OR BY OTHER REPRESENTATIVES AS THEY ELECT.  . . . IT

  WOULD BE MOST EXTRAORDINARY FOR LIVE TESTIMONY TO BE GIVEN BY

  WITNESSES.  THERE IS NO REQUIREMENT THAT A FACTUAL SUBMISSION OR

  OTHER WRITTEN STATEMENT BE SWORN.  THERE IS NO CROSS-EXAMINATION

OF WITNESSES AND NO RECORD OR TRANSCRIPT OF THE PROCEEDINGS. 

  THERE IS NO PROVISION FOR ISSUANCE OF SUBPOENAS OR COMPULSORY

  ATTENDANCE OF WITNESSES."  HEARING ON H.R. 706 (1966 RAILWAY

  LABOR ACT AMENDMENTS) BEFORE THE SUBCOMMITTEE ON LABOR OF THE

  SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, 89TH CONG., 2D

  SESS., 49(1966). 

ALL OF THIS MIGHT BE MADE TOLERABLE IF AT SOME POINT IN HIS JOURNEY
ANDREWS COULD LOOK FORWARD TO A JUDGE'S INQUIRY INTO THE AFFAIR.  BUT
THE FACT IS THAT WHATEVER ORDER BY WHATEVER PROCESS THE BOARD MAY ENTER
WILL BE VIRTUALLY IMMUNE FROM ANY JUDICIAL REVIEW BECAUSE AN AWARD,
EITHER OF THE ADJUSTMENT BOARD OR OF A SPECIAL BOARD, IS REVIEWABLE
ONLY FOR FRAUD OR FOR LACK OF JURISDICTION.  45 U.S.C.
153(P)(PROVISO). 

ON THE OTHER SIDE OF THE BALANCE, IT COULD NOT BE CLAIMED THAT
PERMITTING A JUDICIAL REMEDY (IN ADDITION TO AN ADMINISTRATIVE ONE)
WOULD RISK ECONOMIC WARFARE, ESPECIALLY IN LIGHT OF THE ESTRANGED
RELATIONSHIP OF PERMANENT DISCHARGEES TO THEIR FORMER UNIONS.  NOR
COULD IT BE CLAIMED THAT A JUDICIAL REMEDY WOULD RISK NONUNIFORMITY IN
INTERPRETATION OF COLLECTIVE AGREEMENTS INASMUCH AS COURTS AS WELL AS
THE BOARD WOULD BE OBLIGED TO APPLY A SINGLE BODY OF FEDERAL COMMON
LAW.  SEE MADDOX, SUPRA, AT 658 N. 15. 

IN SUMMARY, THE DANGER OF UNFAIR TREATMENT OF THE CLEARLY
IDENTIFIABLE CLASS OF DISCHARGEES REPRESENTED BY ANDREWS IS SO GREAT,
WITHOUT ANY COMPENSATING ADVANTAGES, THAT I WOULD NOT CONFINE THESE
CLAIMANTS TO THE ADMINISTRATIVE REMEDY. 

/1/  THE OPINION OF THE COURT OF APPEALS IN THE WALKER CASE MAKES
CLEAR THAT THE SENIORITY DISPUTE WAS BASED ON THE COLLECTIVE
AGREEMENT.  354 F.2D 950. 

/2/  THE GEORGIA LAW OF "WRONGFUL DISCHARGE" SEEMS TO AMOUNT TO A
SET OF COMMON-LAW AXIOMS OF CONSTRUCTION TO FILL IN THE AMBIGUITIES IN
EMPLOYMENT CONTRACTS AND EMPLOYMENT RELATIONSHIPS.  IF THERE IS A
CONTRACT, HOWEVER, WHICH EXPRESSLY ADDRESSES THE ISSUE, THE CONTRACT,
AND NOT THE CONSTRUCTION AXIOMS, CONTROLS.  FOR EXAMPLE, UNLESS A
CONTRACT PROVIDES OTHERWISE, DISOBEDIENCE IS A GROUND FOR DISCHARGE,
GEORGIA COAST & PIEDMONT R. CO. V. MCFARLAND, 132 GA. 639, 64 S.E. 897,
AS IS DISRESPECTFUL LANGUAGE, WADE V. HEFNER, 16 GA.APP.  106, 84 S.E.
598.  IF THE EMPLOYMENT CONTRACT, WHETHER ORAL OR WRITTEN, PROVIDES
THAT THE WORKER MAY BE FIRED ONLY IF HIS PERFORMANCE IS UNSATISFACTORY,
HE MAY NOT BE DISCHARGED ONLY FOR ECONOMIC NECESSITY, LUMMUS COTTON GIN
CO. V. BAUGH, 29 GA. APP. 498, 116 S.E. 51, ALTHOUGH "MITIGATING
FACTORS" MAY GENERALLY BE A DEFENSE.  WALKER V. JENKINS, 32 GA.APP. 
238, 123 S.E. 161. 

BUT WHERE THE LANGUAGE OF THE AGREEMENT IS CLEAR, THAT LANGUAGE
CONTROLS AND NOT THE RULES OF CONSTRUCTION.  THUS, IF THE PARTIES
PROVIDE THAT THE EMPLOYER MAY FIRE AT WILL, NO DISCHARGE CAN BE
WRONGFUL.  WEBB V. THE WARREN CO., 113 GA.APP.  850, 149 S.E.2D 867. 

THE GENERAL PRESUMPTION IS THAT HIRING IS TERMINABLE AT WILL, UNLESS
SOME DEFINITE PERIOD OF EMPLOYMENT IS PROVIDED OR INFERABLE FROM THE
RELATIONSHIP.  GA. CODE ANN. SEC. 66-101 (MASTER AND SERVANT).  THE
INTENT OF THE PARTIES IS THE GUIDE TO DETERMINE IF THE COURTS MAY LOOK
TO CUSTOM OR THE PAY INTERVAL, IF THE CONTRACT IS OTHERWISE AMBIGUOUS. 
ODOM V. BUSH, 125 GA. 184, 53 S.E. 1013.  THUS, IF THE WORKER IS PAID
MONTHLY, HE MUST BE GIVEN 30 DAYS' NOTICE.     AS TO DAMAGES, ONCE IT
IS SHOWN THAT THE DISCHARGE WAS WRONGFUL, THE MEASURE OF DAMAGES IS THE
DIFFERENCE BETWEEN THE RATE OF PAY AND WHAT THE DISCHARGEE MIGHT HAVE
BEEN ABLE TO EARN IN OTHER EMPLOYMENT.  GA. CODE ANN. SEC. 4-216.  THE
FACT THAT THE EMPLOYER PREVENTED THE EMPLOYEE FROM PERFORMING THE
REMAINDER OF THE SERVICE IS NOT A BAR TO RECOVERY ON THAT PORTION OF
THE TERM.  IRWIN V. YOUNG, 91 GA.APP.  773, 87 S.E.2D 322. 

FOR ANDREWS TO RECOVER ON A DAMAGES THEORY, IT APPEARS THAT IT WOULD
BE NECESSARY FOR HIM TO SHOW FIRST THAT HE WAS NOT DISCHARGEABLE AT
WILL.  WE DO NOT KNOW FROM THE PLEADINGS WHAT PROOF ANDREWS WILL
TENDER.  SO FAR AS WE CAN NOW TELL THE COLLECTIVE AGREEMENT IS NOT IN
ISSUE.  HIS COMPLAINT DOES NOT STATE THE SOURCE OF THE EMPLOYER'S DUTY;
AND RESPONDENTS ALLEGE THAT THE COLLECTIVE AGREEMENT CREATES NO SUCH
DUTY.  AS TO DAMAGES IT IS ALSO IMPOSSIBLE TO SAY THAT ANY TERMS OF THE
COLLECTIVE AGREEMENT WILL BE RELEVANT TO THIS DISPUTE. 

/3/  THE BOARD IS CURRENTLY DISPOSING OF PETITIONS AT THE RATE OF
ABOUT 1,500 ANNUALLY.  AT THAT RATE THE BOARD WILL ELIMINATE ITS
PRESENT BACKLOG OF SLIGHTLY MORE THAN 3,000 CASES IN TWO YEARS.  THIRTY
SEVENTH ANNUAL REPORT OF THE NATIONAL MEDIATION BOARD 95 (TABLE
9)(1971). 

/4/  CONSTITUTIONAL ISSUES NOT RAISED BY THE PARTIES ARE AT TIMES
PASSED UPON BY THE COURT.  FOR A NOTORIOUS EXAMPLE, SEE ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, AND BUTLER, J.'S COMMENTS, ID., AT 88-89.  SEE
ALSO MAPP V. OHIO, 367 U.S. 643, 673-677 (HARLAN, J., DISSENTING);
REDRUP V. NEW YORK, 386 U.S. 767, 771-772 (HARLAN, J., DISSENTING) 

/5/  NOTHING IN THE 1966 AMENDMENTS NOR THEIR RELATED LEGISLATIVE
HISTORY EVEN SUGGESTS OR HINTS AT A DESIGN TO OVERRULE MOORE V.
ILLINOIS CENTRAL R. CO., 312 U.S. 630.  SEE H.R. REP. NO. 1114, 89TH
CONG., 1ST SESS.(1965); S. REP. NO. 1201, 89TH CONG., 2D SESS.(1966). 

/6/ IT WAS EXPRESSLY OBSERVED BY THE MAJORITY IN REPUBLIC STEEL
CORP. V. MADDOX, 379 U.S. 650, 657-658, THAT BARGAINING PARTIES COULD
AVOID THE FORCE OF THAT OPINION SIMPLY BY AGREEING THAT ARBITRATION WAS
NOT THE EXCLUSIVE REMEDY. 

/7/  ONE COMMENTATOR ON THE ACT HAS WARNED THAT REPRESENTATION BY A
UNION MAY BE A CRITICAL FACTOR IN OBTAINING A FAVORABLE AWARD:  "(AN
INDIVIDUAL'S EFFORTS WILL PRESUMABLY BE LESS EFFECTIVE THAN THAT OF A
UNION, PARTICULARLY SINCE THE GRIEVANCE WILL ULTIMATELY BE RESOLVED BY
A BOARD COMPOSED IN PART OF REPRESENTATIVES OF AFFECTED UNIONS." 
RISHER, THE RAILWAY LABOR ACT, 12 B.C.IND.& COM.L.REV.  51, 72(1970). 
THE PLIGHT OF THE UNIONLESS GRIEVANT IS MORE ALARMING WHEN VIEWED IN
LIGHT OF THE UNSATISFACTORY RECORD UNDER THE ACT:  "THE RAILWAY LABOR
ACT IS SPECIAL PRIVILEGE LEGISLATION, THE PRODUCT OF THE ONCE GREAT
POLITICAL POWER OF THE RAILROAD UNIONS.  IT HAS BEEN ADMINISTERED AS
SUCH.  THIS ACCOUNTS FOR THE DISMAL ADMINISTRATIVE RECORDS OF THE
NATIONAL MEDIATION BOARD AND THE NATIONAL RAILROAD ADJUSTMENT BOARD IN
. . . PROTECTION OF INDIVIDUAL RIGHTS, AND GRIEVANCE ADMUSTMENTS." 
NORTHRUP, FOREWORD TO RISHER, THE RAILWAY LABOR ACT, SUPRA, AT 52. 

ANDREW W. ESTES ARGUES THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS JAMES E. SLATON. 

WILLIAM H. MAJOR ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE LAMAR W. SIZEMORE AND ROBERT G. YOUNG. 
..END :
















HUFFMAN V. BOERSEN, 406 U.S. 337 


       HUFFMAN V. BOERSEN

        CERTIORARI TO THE SUPREME COURT OF NEBRASKA

        NO. 71-5097.  ARGUED APRIL 19, 1972-- DECIDED MAY 15, 1972 


JUDGMENT DISMISSING INDIGENT PETITIONER'S APPEAL FOR FAILURE TO
DEPOSIT CASH OR SECURITY FOR COSTS REQUIRED OF APPELLANTS VACATED TO
AFFORD THE STATE COURT AN OPPORTUNITY FOR RECONSIDERATION IN THE LIGHT
OF SUPERVENING LEGISLATION ENACTED AFTER CERTIORARI WAS GRANTED. 

VACATED AND REMANDED. 

PER CURIAM. 

WE GRANTED CERTIORARI TO REVIEW THE CONSTITUTIONALITY OF NEB. REV.
STAT. SEC. 25-1914(1964) /1/  UNDER WHICH THE NEBRASKA SUPREME COURT
DISMISSED THIS INDIGENT PETITIONER'S APPEAL FOR HIS FAILURE TO DEPOSIT
THE $75 CASH OR BOND SECURITY FOR COSTS REQUIRED OF APPELLANTS BY THE
STATUTE.  404 U.S. 990(1971).  THE JUDGMENT APPEALED FROM ANNULLED
PETITIONER'S MARRIAGE TO RESPONDENT AND DISMISSED HIS COUNTERSUIT
CLAIMING PATERNITY AND CUSTODY OF A CHILD BORN TO RESPONDENT.  AFTER
OUR GRANT OF CERTIORARI, NEBRASKA ENACTED LEGISLATIVE BILL 1120
PROVIDING, AMONG OTHER THINGS, THAT THE NEBRASKA COURTS "SHALL
AUTHORIZE . . . (AN) APPEAL . . . WITHOUT PREPAYMENT OF . . . SECURITY,
BY A PERSON WHO MAKES AN AFFIDAVIT THAT HE IS UNABLE TO . . . GIVE
SECURITY . . . ," EXCEPT THAT "(AN APPEAL MAY NOT BE TAKEN IN FORMA
PAUPERIS IF THE TRIAL COURT CERTIFIES IN WRITING THAT IT IS NOT TAKEN
IN GOOD FAITH."  COUNSEL FOR BOTH PARTIES WERE OF THE OPINION ON ORAL
ARGUMENT HERE THAT THIS NEW STATUTE IS APPLICABLE TO THE INSTANT CASE. 
COUNSEL FOR RESPONDENT ALSO CONCEDED THAT PETITIONER'S APPEAL ON THE
PATERNITY ISSUE HAS MERIT.  /2/  ACCORDINGLY, THE JUDGMENT IS VACATED
AND THE CAUSE REMANDED TO THE NEBRASKA SUPREME COURT FOR
RECONSIDERATION IN LIGHT OF THE SUPERVENING STATUTE. 

              IT IS SO ORDERED. 

/1/  "ON APPEAL IN ANY CASE TAKEN FROM THE DISTRICT COURT TO THE
SUPREME COURT THE APPELLANT . . . SHALL, WITHIN ONE MONTH NEXT AFTER
THE RENDITION OF THE JUDGMENT OR DECREE . . . SOUGHT TO BE REVERSED,
VACATED OR MODIFIED, . . . FILE IN THE DISTRICT COURT A BOND OR
UNDERTAKING IN THE SUM OF SEVENTY-FIVE DOLLARS TO BE APPROVED BY THE
CLERK OF THE DISTRICT COURT, CONDITIONED THAT THE APPELLANT SHALL PAY
ALL COSTS ADJUDGED AGAINST HIM IN THE SUPREME COURT; OR, IN LIEU
THEREOF, SHALL MAKE A CASH DEPOSIT WITH SAID CLERK OF AT LEAST SEVENTY
FIVE DOLLARS FOR THE SAME PURPOSE.  . . . " 

/2/  "Q.  YOU TOLD US TODAY THAT YOU CONCEDE THAT THE DETERMINATION
OF THE PATERNITY QUESTION WAS INSUFFICIENT, INVALID I THINK IS THE WORD
YOU USED. 

MR. DOWDING.  YES, I'M WILLING TO AGREE THAT (PETITIONER) DID NOT
HAVE HIS DAY IN COURT ON THE PATERNITY ISSUE. 

"Q. AND WE COULD SAY SO ON A REMAND. 

"MR. DOWDING.  YES.  SO STIPULATE."  TR. OF ORAL ARG. 40. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I AGREE TO EITHER REVERSING THE JUDGMENT BELOW OR VACATING AND
REMANDING, I DO SO ON SOMEWHAT DIFFERENT GROUNDS. 

THIS CASE IS CLEARLY CONTROLLED BY BODDIE V. CONNECTICUT, 401 U.S.
371.  IT INVOLVES, NOT A DIVORCE, BUT AN ANNULMENT AND A CLAIM
CONCERNING THE PATERNITY AND CUSTODY OF A CHILD.  THE PRINCIPLES
ANNOUNCED IN BODDIE ARE THEREFORE CLEARLY APPLICABLE NO MATTER HOW
CLOSELY BODDIE IS CONFINED.  /1/ 

WHAT THE SUPREME COURT OF NEBRASKA MAY DO ABOUT THE STATUTE THAT HAS
RECENTLY BEEN ENACTED IS ITS BUSINESS AND NOT OURS.  THE PARTIES BEFORE
US CANNOT BY THEIR AGREEMENT MAKE THAT STATUTE APPLICABLE.  ONLY THE
SUPREME COURT OF NEBRASKA CAN DO SO, AND WE CANNOT DIRECT THAT COURT TO
RECONSIDER THIS CASE IN LIGHT OF THE SUPERVENING STATUTE.  /2/  THE
SUPREME COURT OF NEBRASKA IS SOVEREIGN IN ITS OWN RIGHT IN CONNECTION
WITH LOCAL LAW MATTERS.  BODDIE CONTAINS THE GUIDING FEDERAL PRINCIPLE
AND THAT PRINCIPLE ALONE SHOULD CONTROL THE DISPOSITION THAT WE MAKE OF
THE CASE.  /3/ 

/1/  I SHARE THE VIEW OF JUSTICE BLACK, HOWEVER, THAT: 

"(THE DECISION IN BODDIE V. CONNECTICUT CAN SAFELY REST ON ONLY ONE
CRUCIAL FOUNDATION-- THAT THE CIVIL COURTS OF THE UNITED STATES AND
EACH OF THE STATES BELONG TO THE PEOPLE OF THIS COUNTRY AND THAT NO
PERSON CAN BE DENIED ACCESS TO THOSE COURTS, EITHER FOR A TRIAL OR AN
APPEAL, BECAUSE HE CANNOT PAY A FEE, FINANCE A BOND, RISK A PENALTY, OR
AFFORD TO HIRE AN ATTORNEY.  . . .

        .          .          .          . 

"(THE CRUCIAL FOUNDATION ON WHICH BODDIE RESTS ALSO FORBIDS DENIAL
OF AN INDIGENT'S RIGHT OF APPEAL IN CIVIL CASES MERELY BECAUSE HE IS
TOO POOR TO PAY APPEAL COSTS.  ONCE THE RIGHT TO UNHAMPERED ACCESS TO
THE JUDICIAL PROCESS HAS BEEN ESTABLISHED, THAT RIGHT IS DILUTED UNLESS
THE INDIGENT LITIGANT HAS AN OPPORTUNITY TO ASSERT AND OBTAIN REVIEW OF
THE ERRORS COMMITTED AT TRIAL."  MELTZER V. LECRAW & CO., 402 U.S. 954,
955-956, 958 (OPINION OF BLACK, J.). 

/2/  SOME STATES DO HAVE PROCEDURES BY WHICH FEDERAL APPELLATE
COURTS MAY CERTIFY QUESTIONS OF LAW TO THE STATE SUPREME COURT. 
FLORIDA IS ONE.  SEE DIFFENDERFER V. CENTRAL BAPTIST CHURCH, 404 U.S.
412, 415 (DOUGLAS, J., DISSENTING).  NEBRASKA HAS NO SUCH PROCEDURE. 

/3/  IT IS POSSIBLE THAT THE NEBRASKA SUPREME COURT WILL HAVE NO
OPPORTUNITY, DESPITE THE REMAND, TO RULE ON THE APPLICABILITY OF THE
NEW STATUTE TO PETITIONER.  LEGISLATIVE BILL 1120 PROVIDES THAT "(AN
APPEAL MAY NOT BE TAKEN IN FORMA PAUPERIS IF THE TRIAL COURT CERTIFIES
IN WRITING THAT IT IS NOT TAKEN IN GOOD FAITH."  IN THE FEDERAL SYSTEM,
"GOOD FAITH" HAS "BEEN DEFINED AS A REQUIREMENT THAT AN APPEAL PRESENT
A NONFRIVOLOUS QUESTION FOR REVIEW."  CRUZ V. HAUCK, 404 U.S. 59, 62
(DOUGLAS, J., CONCURRING).  HERE, RESPONDENT URGES STRENUOUSLY THAT THE
ANNULMENT ISSUE IS INDEED FRIVOLOUS.  WHILE COUNSEL IS WILLING TO
STIPULATE THAT THERE IS MERIT TO THE PATERNITY ISSUE, THE EFFECT OF
SUCH A STIPULATION ON THE VIEWS OF THE TRIAL JUDGE, WHO IS ON RECORD AS
BELIEVING PETITIONER'S ASSERTIONS TO BE "WHOLLY WITHOUT MERIT,"  APP.
49, IS HIGHLY SPECULATIVE. 

SHOULD PETITIONER'S IN FORMA PAUPERIS APPEAL BE DISALLOWED BECAUSE
OF THE TRIAL COURT'S CERTIFICATION OF THE APPEAL AS FRIVOLOUS, I WOULD
HOLD THAT PETITIONER HAD BEEN DENIED THE EQUAL PROTECTION OF THE LAWS. 
CRUZ V. HAUCK, SUPRA. 

LEO EISENSTATT, BY APPOINTMENT OF THE COURT, 404 U.S. 998, ARGUED
THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

VINCENT L. DOWDING ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :










ATLANTIC COAST LINE RAILROAD CO. V. ERIE LACKAWANNA RAILROAD CO., 406
U.S. 340 



       ATLANTIC COAST LINE RAILROAD CO. V. ERIE LACKAWANNA RAILROAD

           CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 71-107.  ARGUED APRIL 17-18, 1972-- DECIDED MAY 15,

           1972 


442 F.2D 694, AFFIRMED.  HALCYON LINES V. HAENN SHIP CORP., 342 U.S.
282. 

PER CURIAM. 

WE GRANTED CERTIORARI TO REVIEW THE JUDGMENT OF THE COURT OF APPEALS
FOR THE SECOND CIRCUIT, 442 F.2D 694(1971), AFFIRMING THE JUDGMENT OF
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 315 F.SUPP. 
357 (1970).  404 U.S. 909(1971).  WE AGREE THAT IN THIS NONCOLLISION
ADMIRALTY CASE THE DISTRICT COURT PROPERLY DISMISSED PETITIONER'S THIRD
PARTY COMPLAINT FOR CONTRIBUTION AGAINST RESPONDENT ERIE ON THE
AUTHORITY OF HALCYON LINES V. HAENN SHIP CORP., 342 U.S. 282(1952). 
THE JUDGMENT OF THE COURT OF APPEALS IS THEREFORE

   AFFIRMED. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

DEVEREUX MILBURN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE LOUIS L. STANTON, JR., JEROME L. GETZ, AND FRANK G. KURKA. 

E. BARRETT PRETTYMAN, JR., ARGUED THE CAUSE FOR RESPONDENTS.  WITH
HIM ON THE BRIEF FOR RESPONDENT ERIE LACKAWANNA RAILROAD CO. WERE
TIMOTHY J. BLOOMFIELD AND LLOYD W. ROBERSON. 
..END :









MINNESOTA STATE SENATE V. BEENS, 406 U.S. 187 


       SIXTY-SEVENTH MINNESOTA STATE SENATE V. BEENS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MINNESOTA

        NO. 71-1024.  DECIDED APRIL 29, 1972  /0/ 


A THREE-JUDGE DISTRICT COURT FOUND THAT THE MINNESOTA LEGISLATURE WAS
MALAPPORTIONED AND REDUCED THE NUMBER OF LEGISLATIVE DISTRICTS FROM 67,
THE NUMBER ESTABLISHED IN 1913, TO 35, THEREBY REDUCING THE NUMBER OF
SENATORS BY ALMOST 50%, AND THE NUMBER OF REPRESENTATIVES BY NEARLY
25%.  THE COURT DECLARED THE ENTIRE 1966 APPORTIONMENT ACT
UNCONSTITUTIONAL AND ENJOINED STATE OFFICIALS FROM CONDUCTING ELECTIONS
THEREUNDER, LATER MODIFYING THAT INJUNCTION SO AS TO ENJOIN ANY FUTURE
ELECTIONS UNDER ANY PLAN OTHER THAN THE ONE ADOPTED BY THE COURT "OR A
CONSTITUTIONAL PLAN ADOPTED AFTER THIS DATE BY THE STATE OF
MINNESOTA."  APPELLANT, THE MINNESOTA STATE SENATE, INTERVENED IN THE
APPORTIONMENT CHALLENGE BELOW.  HELD: 

1.  THE APPELLANT HAD THE RIGHT TO INTERVENE, AS THE DISTRICT
COURT'S ORDERS DIRECTLY AFFECTED THE SENATE, WHICH IS AN APPROPRIATE
LEGAL ENTITY FOR THE PURPOSE OF INTERVENTION.  SILVER V. JORDAN, 241
F.SUPP.  576, AFF'D, 381 U.S. 415. 

2.  THE DISTRICT COURT'S INJUNCTION WITH RESPECT TO THE STATUTORY
SENATORS AND REPRESENTATIVES IS SUFFICIENT TO JUSTIFY A DIRECT APPEAL
UNDER 28 U.S.C. 1253. 

3.  A FEDERAL REAPPORTIONMENT COURT SHOULD ACCOMMODATE THE RELIEF
ORDERED TO THE APPROPRIATE PROVISIONS OF STATE STATUTES RELATING TO THE
LEGISLATURE'S SIZE AS FAR AS POSSIBLE, AND THE ACTION OF THE DISTRICT
COURT HERE IN SO DRASTICALLY CHANGING THE NUMBER OF DISTRICTS AND THE
SIZE OF THE HOUSES OF THE STATE LEGISLATURE IS NOT REQUIRED BY THE
FEDERAL CONSTITUTION AND IS NOT JUSTIFIED AS AN EXERCISE OF FEDERAL
POWER. 

336 F.SUPP.  715, VACATED AND REMANDED. 

PER CURIAM. 

THESE TWO APPEALS ARE TAKEN BY THE MINNESOTA STATE SENATE FROM
ORDERS OF A THREE-JUDGE FEDERAL DISTRICT COURT REAPPORTIONING THE
MINNESOTA LEGISLATURE.  THE APPEALS DO NOT CHALLENGE THE DISTRICT
COURT'S CONCLUSION THAT THE LEGISLATURE IS NOW MALAPPORTIONED.  AND AT
THIS POINT THEY ARE NOT CONCERNED WITH POPULATION VARIANCES OR WITH
OTHER ISSUES OF THE TYPE CUSTOMARILY PRESENTED IN REAPPORTIONMENT
LITIGATION.  THE CONTROVERSY FOCUSES, INSTEAD, ON (A) THE DISTRICT
COURT'S REFUSAL TO HONOR THE MINNESOTA STATUTE FIXING THE NUMBER OF THE
STATE'S LEGISLATIVE DISTRICTS AT 67 AND (B) THE COURT'S PROCEEDING,
OVER THE INITIAL OPPOSITION OF ALL PARTIES (BUT UPON THE SUGGESTION OF
TWO AMICI, THE LIEUTENANT GOVERNOR AND A REPRESENTATIVE), TO REDUCE THE
NUMBER OF LEGISLATIVE DISTRICTS TO 35, THE NUMBER OF SENATORS BY ALMOST
50%, AND THE NUMBER OF REPRESENTATIVES BY NEARLY 25%.  WE CONCLUDE THAT
THE DISTRICT COURT ERRED IN ITS RULINGS.  ACCORDINGLY, WE SUMMARILY
VACATE THE COURT'S ORDERS AND REMAND THE CASES FOR FURTHER PROCEEDINGS
PROMPTLY TO BE PURSUED. 

        I 

THE MINNESOTA BICAMERAL LEGISLATURE WAS LAST EFFECTIVELY APPORTIONED
IN 1966.  EX. SESS. LAWS 1966, C. 1.  /1/  SECTION 2.021 OF MINN. STAT.
(1969), THE VERY FIRST SECTION OF THE 1966 ACT, STATES THAT, "UNTIL A
NEW APPORTIONMENT SHALL HAVE BEEN MADE," THE STATE'S SENATE SHALL
CONSIST OF 67 MEMBERS AND ITS HOUSE OF REPRESENTATIVES OF 135 MEMBERS. 
/2/  SECTION 2.031, SUBD. 1, FROM THE SECOND SECTION OF THE 1966 ACT,
PRESCRIBES 67 LEGISLATIVE DISTRICTS FOR BOTH THE SENATE AND THE HOUSE. 
/3/  SECTIONS 2.041-2.711, INCLUSIVE, THEN DELINEATE THESE 67
DISTRICTS.  /4/  THE STATE'S CONSTITUTION, ART. IV, SEC. 2, PROVIDES A
LEGISLATOR-POPULATION MINIMUM RATIO (ONE SENATOR FOR EVERY 5,000
INHABITANTS AND ONE REPRESENTATIVE FOR EVERY 2,000 INHABITANTS) AND
STATES, "THE REPRESENTATION IN BOTH HOUSES SHALL BE APPORTIONED EQUALLY
THROUGHOUT THE DIFFERENT SECTIONS OF THE STATE, IN PROPORTION TO THE
POPULATION THEREOF." 

THE 1970 FEDERAL CENSUS TOOK PLACE IN DUE COURSE.  THE MINNESOTA
LEGISLATURE DID NOT PRODUCE A REAPPORTIONMENT ACT DURING ITS REGULAR
SESSION IN 1971.  ONE WAS PASSED ON OCTOBER 29, 1971, DURING THE
RECONVENING OF AN EXTRA SESSION CALLED THAT YEAR.  THE LAWMAKERS
ADJOURNED SINE DIE ON OCTOBER 30.  THE GOVERNOR, HOWEVER, VETOED THE
ACT ON NOVEMBER 1 AND THIS 1971 REAPPORTIONMENT ENDEAVOR FAILED TO
BECOME LAW.  /5/  THE GOVERNOR HAS NOT CALLED THE LEGISLATURE TO
ANOTHER EXTRA SESSION FOR MORE WORK ON REAPPORTIONMENT, /6/  AND IT IS
NOT SCHEDULED TO MEET AGAIN IN REGULAR SESSION UNTIL JANUARY 1973. 
MINN. CONST., ART. IV, SEC. 1; MINN. STAT. SEC. 3.01 (1969).  THE 1972
PRIMARY AND GENERAL ELECTIONS WILL TAKE PLACE IN THE INTERIM.  MINN.
STAT. SECS. 202.02 AND 203.02 (1969).  THUS, THE 1966 STATUTE REMAINS
AS THE STATE'S LAST EFFECTIVE LEGISLATIVE APPORTIONMENT. 

      II 

THE ORIGINAL PLAINTIFFS, WHO ARE AMONG THE APPELLEES HERE, ARE THREE
QUALIFIED VOTERS OF THE STATE.  BY THEIR COMPLAINT, FILED IN APRIL 1971
AND ASSERTING JURISDICTION UNDER 28 U.S.C. 1343(3) AND (4) AND 42
U.S.C. 1983 AND 1988, THEY SOUGHT (A) A DECLARATORY JUDGMENT THAT THE
1966 ACT APPORTIONING THE LEGISLATURE VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, (B) AN INJUNCTION RESTRAINING THE
MINNESOTA SECRETARY OF STATE AND ALL COUNTY AUDITORS FROM CONDUCTING
FUTURE ELECTIONS FOR LEGISLATORS PURSUANT TO THAT ACT, AND (C)
REAPPORTIONMENT OF THE LEGISLATURE BY THE FEDERAL COURT ITSELF.  THE
THREE-JUDGE COURT WAS CONVENED.  THE APPELLANT, THE SIXTY-SEVEN
MINNESOTA STATE SENATE, INTERVENED AS A PARTY DEFENDANT UNDER FED. RULE
CIV. PROC. 24(A). 

THE DISTRICT COURT, AFTER HEARINGS AND WITH THE ASSISTANCE OF
STIPULATIONS, ISSUED THREE SIGNIFICANT ORDERS: 

A. ON NOVEMBER 15, 1971, IT MADE APPROPRIATE FINDINGS, NOT
CHALLENGED HERE AS TO THEIR BASIC PROVISIONS, AND DECLARED THE 1966 ACT
IN ITS ENTIRETY, MINN. STAT. SECS. 2.021-2.712 (1969), INCLUSIVE,
VIOLATIVE OF THE FEDERAL CONSTITUTION, ENJOINED THE SECRETARY OF STATE
AND THE COUNTY AUDITORS FROM CONDUCTING FUTURE ELECTIONS UNDER THE ACT,
AND APPOINTED TWO SPECIAL MASTERS (A THIRD WAS NAMED LATER) TO AID THE
COURT IN FORMULATING A NEW APPORTIONMENT PLAN.  SEE 336 F.SUPP.  715,
718-719. 

B. ON DECEMBER 3 IT FOUND "THAT IT BEST CAN FULFILL ITS DUTY OF
APPORTIONING THE MINNESOTA LEGISLATURE IN ACCORDANCE WITH THE
CONSTITUTION OF THE UNITED STATES AND WITH DUE REGARD FOR STATE POLICY"
BY DIVIDING THE STATE INTO 35 SENATORIAL DISTRICTS AND DIVIDING EACH
SENATORIAL DISTRICT INTO THREE HOUSE DISTRICTS, AND ORDERED THAT THE
PARTIES, INTERVENORS, AND AMICI COULD PRESENT PLANS FOR APPORTIONING
THE LEGISLATURE ACCORDINGLY.  IN AN ACCOMPANYING MEMORANDUM THE COURT
SAID, "THE ONLY SERIOUS QUESTIONS . . . ARE WHETHER WE HAVE THE
AUTHORITY TO CHANGE THE SIZE OF THE LEGISLATURE; AND IF SO, TO WHAT
EXTENT."  IT ANSWERED THE FIRST OF THESE QUESTIONS IN THE AFFIRMATIVE,
QUOTING THE FOLLOWING SENTENCE FROM SWANN V. CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION, 42 U.S. 1 (1971): 

"ONCE A RIGHT AND A VIOLATION HAVE BEEN SHOWN, THE SCOPE OF A
DISTRICT COURT'S EQUITABLE POWERS TO REMEDY PAST WRONGS IN BROAD, FOR
BREADTH AND FLEXIBILITY ARE INHERENT IN EQUITABLE REMEDIES."  402 U.S.,
AT 15.  THE COURT STATED THAT THE LEGISLATURE COULD NOT BE APPORTIONED
INTO 67 SENATE DISTRICTS AND 135 HOUSE DISTRICTS WITHOUT VIOLATING
EITHER THE FEDERAL CONSTITUTION OR THE MINNESOTA CONSTITUTION; THAT THE
EXISTING PRACTICE OF DIVIDING ONE SENATE DISTRICT INTO THREE HOUSE
DISTRICTS AND ALL OTHERS INTO TWO CANNOT BE CONTINUED WITHOUT VIOLATING
THE REQUIREMENTS OF EQUAL PROTECTION; THAT THE GREATER THE POPULATION
OF EACH DISTRICT, THE MORE CLOSELY CAN THE ONE MAN, ONE VOTE STANDARD
BE MET AND STILL GIVE EFFECT TO THE STATE POLICY OF ADHERING TO THE
BOUNDARIES OF POLITICAL SUBDIVISIONS; THAT STATE POLICY WITH RESPECT TO
THE LEGISLATURE'S SIZE "IS DIFFICULT TO DISCERN"; THAT THE GOVERNOR HAD
RECOMMENDED A REDUCTION IN SIZE; THAT THERE IS MERIT IN HAVING AN ODD
NUMBERED SENATE AND HOUSE WHERE, AS IN MINNESOTA, THE STATE HAS "TWO
STRONG AND RATHER EVENLY DIVIDED POLITICAL PARTIES"; THAT FEDERAL
CONSTITUTIONAL AND STATE POLICY REQUIREMENTS CAN BEST BE HARMONIZED BY
HAVING 35 SENATE DISTRICTS AND BY DIVIDING EACH SENATE DISTRICT INTO
THREE HOUSE DISTRICTS; THAT THERE ARE PERSUASIVE ARGUMENTS THAT
"POSITIVE BENEFITS TO THE STATE WILL ACCRUE BY SUBSTANTIALLY REDUCING
THE SIZE OF THE HOUSE"; AND THAT "IT IS NOT OUR DESIRE TO FIX FOR THE
FUTURE THE SIZE OF THE SENATE AND THE HOUSE IN MINNESOTA," FOR THE
LEGISLATURE IF IT WISHES, MAY APPROPRIATELY REAPPORTION.  SEE 336
F.SUPP.,AT 720-721. 

C. ON JANUARY 25, 1972, IT ENTERED ITS "FINAL ORDER AND PLAN OF
APPORTIONMENT" BY WHICH IT ADOPTED A PLAN THEREIN DESCRIBED.  THE COURT
ALSO MODIFIED ITS INJUNCTION OF NOVEMBER 15 SO AS TO ENJOIN THE STATE
SECRETARY AND COUNTY AUDITORS FROM CONDUCTING ANY FUTURE ELECTIONS FOR
THE LEGISLATURE UNDER ANY PLAN OTHER THAN THE ONE ADOPTED BY THE COURT
"OR A CONSTITUTIONAL PLAN ADOPTED AFTER THIS DATE BY THE STATE OF
MINNESOTA."  IN ACCORD WITH MINN. CONST., ART. IV, SEC. 24, 1972
ELECTIONS UNDER THE NEW PLAN FOR ALL POSITIONS IN THE SENATE AND HOUSE
WERE ORDERED.  336 F.SUPP.  715, 732. 

THE SENATE, AS INTERVENOR, FIRST APPEALED FROM THE ORDERS OF
NOVEMBER 15, 1971, AND DECEMBER 3, 1971 (CASE NO. 71-1024), AND THEN
FROM THE ORDER OF JANUARY 25, 1972 (CASE NO. 71-1145).  BOTH APPEALS
ARE UNDER 28 U.S.C. 1253.  WE DENIED THE SENATE'S MOTION TO EXPEDITE
THE APPEALS, BUT GRANTED ITS MOTION TO CONSOLIDATE THEM.  405 U.S. 985
(1972).  WE THEN GRANTED ITS APPLICATION FOR A TEMPORARY STAY PENDING
FURTHER ORDER OF THE COURT.  POST, P. 905. 

       III 

THE APPELLEES HAVE MOVED TO DISMISS.  TWO GROUNDS ARE ASSERTED: 

A. THAT THE SENATE LACKS AUTHORITY AND STANDING TO PROSECUTE THE
APPEALS.  IT IS SAID THAT THE SENATE'S AUTHORIZING RESOLUTION DOES NOT
ENTITLE ITS COUNSEL TO TAKE THE APPEALS; THAT THE RESOLUTION RELATES
ONLY TO LEGISLATIVE DISTRICT BOUNDARIES AND NOT TO THEIR NUMBER; THAT
THE OFFICE OF SENATE COUNSEL SPEAKS ONLY FOR CERTAIN MEMBERS OF THE
SENATE AND NOT FOR THE WHOLE; THAT IT IS THE LEGISLATURE, AND NOT JUST
THE SENATE, THAT IS THE LEGAL ENTITY CONCERNED FOR PURPOSES OF THE
APPEALS; AND THAT ONLY THE LEGISLATURE HAS STANDING. 

THE AUTHORIZING SENATE RESOLUTION, HOWEVER, IS IN BROAD TERMS; 

     "BE IT RESOLVED, BY THE SENATE OF THE STATE OF MINNESOTA, THAT

  THE OFFICE OF SENATE COUNSEL BE AND IT IS HEREBY AUTHORIZED AND

  DIRECTED TO TAKE SUCH STEPS AS MAY BE NECESSARY TO REPRESENT THE

  INTEREST AND WILL OF THIS BODY TO THE EXTENT DEEMED NECESSARY IN

  BOTH STATE AND FEDERAL COURT ACTIONS INVOLVING THE PRESCRIPTION

  OF THE BOUNDS OF SENATORIAL AND REPRESENTATIVE DISTRICTS, THE

  APPORTIONMENT OF SENATORS AND REPRESENTATIVES AMONG THOSE

  DISTRICTS, AND THE ORDERLY PROCESS OF ELECTIONS THEREFROM . . . "

  JOURNAL OF THE MINNESOTA SENATE 1971, 39TH DAY, P. 460. 

THE RESOLUTION WAS ADOPTED JULY 31, 1971, BY A 56-TO-0 VOTE.  A MOTION
TO RECONSIDER MADE TWO AND A HALF MONTHS LATER FAILED BY A VOTE OF 33
31.  ID., 40TH DAY, AT 492. 

WE ARE NOT INCLINED TO READ THIS AUTHORIZING RESOLUTION
RESTRICTIVELY, AS THE APPELLEES SUGGEST.  CERTAINLY THE PRESENT APPEALS
ARE IN A FEDERAL COURT ACTION THAT CONCERNS APPORTIONMENT "AND THE
ORDERLY PROCESS OF ELECTIONS THEREFROM."  AND CERTAINLY THE SENATE IS
DIRECTLY AFFECTED BY THE DISTRICT COURT'S ORDERS.  THAT THE SENATE IS
AN APPROPRIATE LEGAL ENTITY FOR PURPOSE OF INTERVENTION AND, AS A
CONSEQUENCE, OF AN APPEAL IN A CASE OF THIS KIND IS SETTLED BY OUR
AFFIRMANCE OF SILVER V. JORDAN, 241 F.SUPP.  576 (SD CAL. 1964), AFF'D,
381 U.S. 415 (1965), WHERE IT WAS SAID: 

    "THE CALIFORNIA STATE SENATE'S MOTION TO INTERVENE AS A

  SUBSTANTIALLY INTERESTED PARTY WAS GRANTED BECAUSE IT WOULD BE

  DIRECTLY AFFECTED BY THE DECREE OF THIS COURT."  241 F.SUPP.,AT

  579. 

A GROUP OF SENATORS THUS HAD THE RIGHT TO INTERVENE.  THE CONCURRENCE
OF THE HOUSE WAS NOT NECESSARY AS IT WOULD HAVE BEEN TO ENACT
LEGISLATION. 

B. THAT THE APPEALS ARE NOT FROM ORDERS GRANTING OR DENYING
INJUNCTIVE RELIEF, WITHIN THE REQUIREMENT OF 28 U.S.C. 1253.  ALTHOUGH
THE ORDERS OF NOVEMBER 15, 1971, AND JANUARY 25, 1972, SPECIFICALLY
ENJOIN STATE AND COUNTY OFFICERS, THE APPELLEES ASSERT THAT THE
RESTRAINING PORTIONS OF THOSE ORDERS ARE NOT NOW ATTACKED AND ARE
CONCEDED BY THE APPELLANT.  THIS, IN OUR VIEW, IS TOO NARROW AN
ANALYSIS.  THE ORDER OF NOVEMBER 15 CLEARLY ENJOINS THE STATE AND
COUNTY OFFICERS "FROM HOLDING OR CONDUCTING ANY FUTURE ELECTIONS UNDER
THE PRESENT APPORTIONMENT STATUTES."  THAT OF JANUARY 25 DOES THE SAME
EXCEPT WITH RESPECT TO THE PLAN THEN ADOPTED BY THE COURT OR ONE
THEREAFTER VALIDLY ADOPTED BY THE STATE.  THE COURT'S INJUNCTIVE
HOLDING APPLIES TO SECS. 2.031 AND 2.021, RESPECTIVELY FIXING THE
NUMBER OF LEGISLATIVE DISTRICTS AND THE NUMBER OF SENATORS AND
REPRESENTATIVES, AS WELL AS TO THE SUCCEEDING SECTIONS DETERMINING THE
BOUNDARIES OF THE 67 DISTRICTS.  THE APPELLANT'S APPEAL RELATES TO
SECS. 2.031 AND 2.021.  THE COURT'S INJUNCTION WITH RESPECT TO THOSE
GUNN V. UNIVERSITY COMMITTEE, 399 U.S. 383 (1970), CITED BY THE
APPELLEES, IS INAPPOSITE. 

        IV 

THAT THE THREE-JUDGE FEDERAL COURT POSSESSES THE POWER TO
REAPPORTION THE STATE'S LEGISLATURE WHEN THE APPLICABLE STATE STATUTES
FALL SHORT OF CONSTITUTIONAL REQUIREMENTS IS NOT QUESTIONED.  REYNOLDS
V. SIMS, 377 U.S. 533, 586-587 (1964).  THE 1966 MINNESOTA
APPORTIONMENT LEGISLATION, THE COURT FOUND, IN THE LIGHT OF THE 1970
CENSUS FIGURES NO LONGER PROVIDED A CONSTITUTIONALLY ACCEPTABLE
APPORTIONMENT OF EITHER HOUSE.  NO ONE CHALLENGES THAT BASIC FINDING
HERE, AND WE HAVE NO REASON TO RULE OTHERWISE.  THE 1971 LEGISLATURE
HAD ENDEAVORED TO REAPPORTION, AND, THUS, TO FULFILL THE REQUIREMENT
IMPOSED UPON IT BY ART. IV, SEC. 23, OF THE STATE'S CONSTITUTION.  /7/
SEE MAGRAW V. DONOVAN, 163 F.SUPP.  184, 187-188 (MINN. 1958), AND
HONSEY V. DONOVAN, 236 F.SUPP.  8 (MINN. 1964).  THE LEGISLATURE'S
EFFORTS IN THAT DIRECTION, HOWEVER, WERE NULLIFIED BY THE GOVERNOR'S
VETO OF THE ACT IT PASSED, AN ACTION THE EXECUTIVE HAD THE POWER TO
TAKE.  DUXBURY V. DONOVAN, 272 MINN, 424, 138 N.W.2D 692 (1965).  THE
NET RESULT WAS THE CONTINUING APPLICABILITY OF THE 1966 ACT.  UNDER
THESE CIRCUMSTANCES JUDICIAL RELIEF WAS APPROPRIATE. 

THE THREE-JUDGE COURT, HOWEVER, WAS NOT CONTENT WITH DEVISING
JUDICIAL APPORTIONMENT WITHIN THE FRAMEWORK OF THE EXISTING AND
OTHERWISE VALID STATUTORY STRUCTURE.  INSTEAD OF RECOGNIZING THE
PROVISION IN MINN. STAT. SEC. 2.021 (1969), THAT THE STATE SENATE "IS
COMPOSED OF 67 MEMBERS AND THE HOUSE OF REPRESENTATIVES IS COMPOSED OF
135 MEMBERS," AND THE FURTHER PROVISION IN SEC. 2.031 THAT THE SENATORS
AND REPRESENTATIVES "ARE APPORTIONED THROUGHOUT THE STATE IN 67
LEGISLATIVE DISTRICT," THE COURT DECLARED THOSE SECTIONS INVALID ALONG
WITH SECS. 2.041-2.711, THE PROVISIONS THAT DELINEATE THE BOUNDARIES OF
THE SPECIFIED 67 LEGISLATIVE DISTRICTS. 

WE NEED NOT REVIEW AT LENGTH THE SEVERAL PRONOUNCEMENTS OF THIS
COURT RELATING TO STATE LEGISLATIVE REAPPORTIONMENT.  THE PERTINENT
CASES, PARTICULARLY THOSE OF JUNE 15, 1964, AND THE GUIDELINES THEY
PROVIDE ARE WELL-KNOWN.  IT SUFFICES TO NOTE THAT IN REYNOLDS V. SIMS,
377 U.S. 533, THE COURT STATED THAT APPORTIONMENT "IS PRIMARILY A
MATTER FOR LEGISLATIVE CONSIDERATION AND DETERMINATION, AND . . .
JUDICIAL RELIEF BECOMES APPROPRIATE ONLY WHEN A LEGISLATURE FAILS TO
REAPPORTION ACCORDING TO FEDERAL CONSTITUTIONAL REQUISITES . . . ." 
377 U.S.,AT 586.  /8/  BUT WE ALSO STATED, "WITH RESPECT TO THE
OPERATION OF THE EQUAL PROTECTION CLAUSE, IT MAKES NO DIFFERENCE
WHETHER A STATE'S APPORTIONMENT SCHEME IS EMBODIED IN ITS CONSTITUTION
OR IN STATUTORY PROVISIONS," AND, THEN, "CLEARLY, COURTS SHOULD ATTEMPT
TO ACCOMMODATE THE RELIEF ORDERED TO THE APPORTIONMENT PROVISIONS OF
STATE CONSTITUTIONS INSOFAR AS IS POSSIBLE."  377 U.S.,AT 584.  AND THE
MINNESOTA CONSTITUTION, ART. IV, SEC. 23, VESTS THE LEGISLATURE WITH
POWER TO REAPPORTION. 

IT FOLLOWS FROM THIS THAT A FEDERAL REAPPORTIONMENT COURT SHOULD
ACCOMMODATE THE RELIEF ORDERED TO THE APPROPRIATE PROVISIONS OF STATE
STATUTES RELATING TO THE LEGISLATURE'S SIZE INSOFAR AS IS POSSIBLE.  WE
DO NOT HAVE DIFFICULTY, AS THE DISTRICT COURT PROFESSED TO HAVE, IN
DISCERNING THE STATE'S POLICY AS TO THE LEGISLATURE'S SIZE.  THAT
POLICY, LONG IN EFFECT IN MINNESOTA AND RESTATED NO LONGER THAN SIX
YEARS AGO IN SEC. 2.021, IS FOR 67 SENATORS AND 135 REPRESENTATIVES,
AND, IN SEC. 2.031, IS FOR 67 LEGISLATIVE DISTRICTS.  THESE ARE FIGURES
THAT HAVE BEEN DETERMINED BY THE LEGISLATURE AND APPROVED BY THE
GOVERNOR OF THE STATE.  THE PRESENT GOVERNOR'S CONTRARY RECOMMENDATION,
ALTHOUGH CERTAINLY ENTITLED TO THOUGHTFUL CONSIDERATION, REPRESENTS
ONLY THE EXECUTIVE'S PROFFERED CURRENT POLICY, JUST AS THE
REAPPORTIONMENT PLAN HE VETOED ON NOVEMBER 1, 1971, REPRESENTED ONLY
THE LEGISLATURE'S PROFFERED CURRENT POLICY. 

WE NOTE, IN REPETITION, THAT THE DISTRICT COURT INVALIDATED THE
ENTIRE 1966 ACT, SECS. 2.021-2.712, DESPITE THE FACT THAT THE DETAILS
OF THE LEGISLATIVE DISTRICTS' CONFIGURATIONS ARE INCLUDED ONLY IN SECS.
2.041-2.711.  SECTION 2.021 MERELY SPECIFIES THE NUMBER OF SENATORS AND
REPRESENTATIVES; SEC. 2.031 CALLS FOR THE APPORTIONMENT OF THOSE
LEGISLATORS THROUGHOUT THE STATE IN 67 DISTRICTS; AND SEC. 2.712
PROVIDED THE EFFECTIVE DATE OF THE 1966 ACT, THE EFFICACY OF WHICH, FOR
THE PERIOD PRIOR TO THE 1970 CENSUS, IS NOT AT ISSUE HERE.  IN THE
LIGHT OF THE STATE'S POLICY OF STATUTORY SEVERABILITY, MINN. STAT. SEC.
645.20 (1969), /9/  AND RECOGNIZING THAT THIS SPECIFIC NUMBER OF
LEGISLATIVE DISTRICTS HAS BEEN IN EFFECT IN MINNESOTA SINCE 1913 AND
THROUGH TWO SUCCEEDING REAPPORTIONMENTS, WE NECESSARILY CONCLUDE THAT
THE DISTRICT COURT'S INVALIDATION OF THE SIX-YEAR-OLD REAPPORTIONMENT
LAW SWEPT TOO BROADLY IN NULLIFYING STATUTORY SECTIONS THAT ARE CAPABLE
OF STANDING ALONE. 

WE KNOW OF NO FEDERAL CONSTITUTIONAL PRINCIPLE OR REQUIREMENT THAT
AUTHORIZES A FEDERAL REAPPORTIONING COURT TO GO AS FAR AS THE DISTRICT
COURT DID AND, THUS, TO BY-PASS THE STATE'S FORMAL JUDGMENT AS TO THE
PROPER SIZE OF ITS LEGISLATIVE BODIES.  NO CASE DECIDED BY THIS COURT
HAS GONE THAT FAR AND WE HAVE FOUND NO DISTRICT COURT DECISION THAT HAS
EMPLOYED SUCH RADICAL SURGERY IN REAPPORTIONMENT.  THERE ARE CASES
WHERE JUDICIAL REAPPORTIONMENT HAS EFFECTUATED MINOR CHANGED IN A
LEGISLATURE'S SIZE.  NEARLY ALL THOSE CASES REFLECT AN INCREASE OR
DECREASE OF ONLY A FEW SEATS /10/  AND MOST APPEAR TO HAVE BEEN
JUSTIFIED BY A STATE CONSTITUTIONAL DEMAND, AGREEMENT OF THE PARTIES,
THE OBSERVANCE OF GEOGRAPHICAL BOUNDARIES, OR MATHEMATICAL
CONVENIENCE.  WE DO NOT DISAPPROVE A COURT-IMPOSED MINOR VARIATION FROM
A STATE'S PRESCRIBED FIGURE WHEN THAT CHANGE IS SHOWN TO BE NECESSARY
TO MEET CONSTITUTIONAL REQUIREMENTS.  AND WE WOULD NOT OPPOSE THE
DISTRICT COURT'S REDUCING, IN THIS CASE, THE NUMBER OF REPRESENTATIVES
IN THE MINNESOTA HOUSE FROM 135 TO 134, AS THE PARTIES APPARENTLY HAVE
BEEN WILLING TO CONCEDE.  THAT ACTION WOULD FIT EXACTLY THE 67-DISTRICT
PATTERN.  BUT TO SLASH A STATE SENATE'S SIZE ALMOST IN HALF AND A STATE
HOUSE'S SIZE BY NEARLY ONE-FOURTH IS TO MAKE MORE THAN A MERE MINOR
VARIATION.  IF A CHANGE OF THAT EXTENT WERE ACCEPTABLE, SO, TOO, WOULD
BE A FEDERAL COURT'S CUTTING OR INCREASING SIZE BY 75% OR 90% OR,
INDEED, BY PRESCRIBING A UNICAMERAL LEGISLATURE FOR A STATE THAT HAD
ALWAYS FOLLOWED THE BICAMERAL PRECEDENT.  WE REPEAT WHAT WAS SAID
RECENTLY IN ANOTHER LEGISLATIVE APPORTIONMENT CASE:  "THE REMEDIAL
POWERS OF A EQUITY COURT MUST BE ADEQUATE TO THE TASK, BUT THEY ARE NOT
UNLIMITED."  WHITCOMB V. CHAVIS, 403 U.S. 124, 161 (1971). 

IN SUMMARY, THE NUMBER OF A STATE'S LEGISLATIVE DISTRICTS OR THE
NUMBER OF MEMBERS IN EACH HOUSE OF ITS LEGISLATURE RAISES NO ISSUE OF
EQUAL PROTECTION UNLESS THE NUMBER OS PRESCRIBED OCCASIONS SIGNIFICANT
AND INVALIDATING POPULATION DEVIATIONS. 

     "DETERMINING THE SIZE OF ITS LEGISLATIVE BODIES IS OF COURSE A

  MATTER WITHIN THE DISCRETION OF EACH INDIVIDUAL STATE.  NOTHING

  IN THIS OPINION SHOULD BE READ AS INDICATING THAT THERE ARE ANY

  FEDERAL CONSTITUTIONAL MAXIMUMS OR MINIMUMS ON THE SIZE OF STATE

  LEGISLATIVE BODIES."  REYNOLDS V. SIMS, 377 U.S.,AT 581 N. 63. 

SEE ALSO CONNOR V. JOHNSON, 330 F.SUPP.  506, 507 (S.D. MISS.), ORDER
STAYED ON OTHER GROUNDS, 402 U.S. 690, OPINION ON REMAND, 330 F.SUPP. 
521 (S.D. MISS.  1971); BANNISTER V. DAVIS, 263 F.SUPP.  202, 208 (ED
LA. 1966); DUNGAN V. SAWYER, 250 F.SUPP.  480, 489 (NEV. 1965). 

WE CONCLUDE THAT THE ACTION OF THE THREE-JUDGE COURT IN SO
DRASTICALLY CHANGING THE NUMBER OF LEGISLATIVE DISTRICTS AND THE SIZE
OF THE RESPECTIVE HOUSES OF THE MINNESOTA LEGISLATURE IS NOT REQUIRED
BY THE FEDERAL CONSTITUTION AND IS NOT JUSTIFIED AS AN EXERCISE OF
FEDERAL JUDICIAL POWER. 

OUR RULING HERE, OF COURSE, IS NO EXPRESSION OF OPINION ON OUR PART
AS TO WHAT IS DESIRABLE BY WAY OF LEGISLATIVE SIZE FOR THE STATE OF
MINNESOTA OR FOR ANY OTHER STATE.  IT MAY WELL BE THAT 67 SENATORS AND
135 REPRESENTATIVES MAKE A LEGISLATURE OF UNWIELDY SIZE.  THAT IS A
MATTER OF STATE POLICY.  WE CERTAINLY ARE NOT EQUIPPED-- AND IT IS NOT
OUR FUNCTION AND TASK-- TO EFFECTUATE POLICY OF THAT KIND OR TO
EVALUATE IT ONCE IT HAS BEEN DETERMINED BY THE STATE.  NEITHER IS IT
THE FUNCTION AND TASK OF THE FEDERAL DISTRICT COURT.  SIZE IS FOR THE
STATE TO DETERMINE IN THE EXERCISE OF ITS WISDOM AND IN THE LIGHT OF
ITS AWARENESS OF THE NEEDS AND DESIRES OF ITS PEOPLE. 

THE ORDERS OF THE DISTRICT COURT ARE VACATED AND THE CASES ARE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  THE
DISTRICT COURT IS INSTRUCTED TO GIVE THIS MATTER PRIORITY AND TO ACT
PROMPTLY AND FORTHWITH SO THAT THE STATE'S 1972 ELECTORAL PROCESS MAY
GET UNDER WAY WITH ASSURANCE AS SOON AS POSSIBLE.  IT IS ALREADY LATE
IN THE DAY, BUT THE MAINTENANCE OF LEGISLATIVE DISTRICTS LONG IN EFFECT
PROVIDES A MINIMUM OF DISRUPTION EVEN NOW.  /11/ 

THE JUDGMENT IN THESE CASES SHALL ISSUE FORTHWITH. 

              IT IS SO ORDERED. 

/0/ TOGETHER WITH NO. 71-1145, SIXTY-SEVEN MINNESOTA STATE SENATE V.
BEENS ET AL., ON APPEAL FROM THE SAME COURT. 

/1/  THIS WAS THE NINTH GENERAL REAPPORTIONMENT IN MINNESOTA SINCE
THE ADOPTION OF THE STATE'S CONSTITUTION IN 1857.  INITIALLY THERE WERE
26 DISTRICTS, 37 SENATORS, AND 80 REPRESENTATIVES.  MINN. CONST. 1857,
SCHEDULE SEC. 12 (BOTH VERSIONS).  THE SUCCEEDING PLANS, AND THE NUMBER
OF DISTRICTS AND LEGISLATORS THEY SPECIFIED, WERE

                            DISTRICTS   SENATORS   REPRESENTATIVES 

LAWS 1860, C. 73 21 21 42 

LAWS 1866, C. 4 22 22 47 

LAWS 1871, C. 20 41 41 106 

LAWS 1881, C. 128 47 47 103 

LAWS 1899, C. 2 54 54 114 

LAWS 1897, C. 120 63 63 119 

LAWS 1913, C. 91 67 67 130 

EX. SESS. LAWS 1959, C. 45 67 67 135 

BY LAWS 1917, C. 217, THE NUMBER OF REPRESENTATIVES WAS INCREASED BY
ONE (THE 65TH DISTRICT), BUT THERE WAS NO ACCOMPANYING GENERAL
REAPPORTIONMENT. 

THROUGHOUT THIS ENTIRE PERIOD OF MORE THAN A CENTURY, THE MINNESOTA
CONSTITUTION, ART. IV, SEC. 23, HAS CALLED FOR REAPPORTIONMENT AT THE
FIRST LEGISLATIVE SESSION AFTER EACH FEDERAL CENSUS.  SEE ALSO MAGRAW
V. DONOVAN, 163 F.SUPP.  184 (MINN. 1958), AND HONSEY V. DONOVAN, 236
F.SUPP.  8 (MINN. 1964). 

/2/  "2.021 NUMBER OF MEMBERS.  FOR EACH LEGISLATURE, UNTIL A NEW
APPORTIONMENT SHALL HAVE BEEN MADE, THE SENATE IS COMPOSED OF 67
MEMBERS AND THE HOUSE OF REPRESENTATIVES IS COMPOSED OF 135 MEMBERS." 

/3/  "2.031 APPORTIONMENT.  SUBDIVISION 1.  THE REPRESENTATIVES IN
THE SENATE AND HOUSE OF REPRESENTATIVES ARE APPORTIONED THROUGHOUT THE
STATE IN 67 LEGISLATIVE DISTRICTS." 

/4/  SECTIONS 2.041-2.711 WERE SECS. 3-70, INCLUSIVE, OF THE 1966
ACT. 

/5/  A LEGISLATIVE REAPPORTIONMENT ACT IS SUBJECT TO EXECUTIVE VETO
UNDER MINN. CONST., ART. IV, SECS 11 AND 12, AND ART. V. SEC. 4. 
DUXBURY V. DONOVAN, 272 MINN. 424, 138 N.W.2D 692 (1965). 

/6/  POWER IS VESTED IN THE GOVERNOR TO CONVENE BOTH HOUSES OF THE
LEGISLATURE "ON EXTRAORDINARY OCCASIONS."  MINN. CONST., ART. V, SEC.
4.  THIS POWER IS ALSO RECOGNIZED BY ART. IV, SEC. 1, OF THE
CONSTITUTION. 

/7/  ART. IV, SEC. 23.  "THE LEGISLATURE SHALL HAVE THE POWER TO
PROVIDE BY LAW FOR AN ENUMERATION OF THE INHABITANTS OF THIS STATE, AND
ALSO HAVE THE POWER AT THEIR FIRST SESSION AFTER EACH ENUMERATION OF
THE INHABITANTS OF THIS STATE MADE BY THE AUTHORITY OF THE UNITED
STATES, TO PRESCRIBE THE BOUNDS FOR CONGRESSIONAL, SENATORIAL AND
REPRESENTATIVE DISTRICTS, AND TO APPORTION ANEW THE SENATORS AND
REPRESENTATIVES AMONG THE SEVERAL DISTRICTS ACCORDING TO THE PROVISIONS
OF SECTION SECOND OF THIS ARTICLE." 

/8/ IN THE COMPANION CASE OF MARYLAND COMMITTEE V. TAWES, 377 U.S.
656, 676, THE COURT OBSERVED AGAIN THAT "PRIMARY RESPONSIBILITY FOR
LEGISLATIVE APPORTIONMENT RESTS WITH THE LEGISLATURE ITSELF." 

/9/  "645.20 CONSTRUCTION OF SEVERABLE PROVISIONS.  UNLESS THERE IS
A PROVISION IN THE LAW THAT THE PROVISIONS SHALL NOT BE SEVERABLE, THE
PROVISIONS OF ALL LAWS SHALL BE SEVERABLE.  IF ANY PROVISION OF A LAW
IS FOUND TO BE UNCONSTITUTIONAL AND VOID, THE REMAINING PROVISIONS OF
THE LAW SHALL REMAIN VALID, UNLESS THE COURT FINDS THE VALID PROVISIONS
OF THE LAW ARE SO ESSENTIALLY AND INSEPARABLY CONNECTED WITH, AND SO
DEPENDENT UPON, THE VOID PROVISIONS THAT THE COURT CANNOT PRESUME THE
LEGISLATURE WOULD HAVE ENACTED THE REMAINING VALID PROVISIONS WITHOUT
THE VOID ONE; OR UNLESS THE COURT FINDS THE REMAINING VALID PROVISIONS,
STANDING ALONE, ARE INCOMPLETE AND ARE INCAPABLE OF BEING EXECUTED IN
ACCORDANCE WITH THE LEGISLATIVE INTENT." 

THE 1966 ACT DID NOT STATE THAT ITS PROVISIONS SHALL NOT BE
SEVERABLE.  IN CONTRAST, MINNESOTA'S IMMEDIATELY PRECEEDING
APPORTIONMENT ACT, EX. SESS. LAWS 1959, C. 45 DID CONTAIN IN ITS SEC.
72 AN EXPRESS NON-SEVERABILITY PROVISION; THAT PROVISION WAS REPEALED
BY C. 1, SEC. 71, OF THE 1966 ACT.  THE LEGISLATIVE INTENT IN 1966 IS
THUS APPARENT. 

/10/  SIMS V. AMOS, 336 F.SUPP.  924, 936, 937 (MD ALA. 1972) (HOUSE
REDUCED FROM 106 TO 105 SO AS TO HAVE THREE TIMES THE NUMBER OF SENATE
SEATS); SCHAEFER V. THOMSON, 251 F.SUPP.  450 (WYO. 1965), AFF'D, 383
U.S. 269 (1966) (SENATE INCREASED FROM 25 TO 30 ON AGREEMENT OF THE
PARTIES AND IN ACCORD WITH THE STATE CONSTITUTION); KLAHR V. GODDARD,
250 F.SUPP.  537 (ARIZ. 1966) (SENATE REDUCED FROM 31 TO 30 AND HOUSE
FROM 80 TO 60.  THE PRESERVATION OF COUNTY LINES, AS PRESCRIBED BY THE
STATE'S CONSTITUTION, ART. 4, PT. 2, SEC. 1, WAS AN ANNOUNCED
CONSIDERATION IN THIS SUBSTANTIAL HOUSE REDUCTION WHICH NO ONE
OPPOSED.  NO APPEAL WAS TAKEN); HERWEG V. THIRTY NINTH LEGISLATIVE
ASSEMBLY, 246 F.SUPP.  454 (MONT. 1965) (SENATE REDUCED FROM 56 TO 55
AND HOUSE INCREASED FROM 94 TO 104.  A CONSTITUTIONAL PROVISION, ART.
VI, SEC. 3, PROHIBITING THE DIVISION OF COUNTIES, WAS THEREBY
OBSERVED); PAULSON V. MEIER, 246 F.SUPP.  36 (ND 1965) (SENATE REDUCED
FROM 53 TO 49 AND HOUSE FROM 106 TO 98.  THE STATE'S CONSTITUTION, ART.
II, SEC. 26, MANDATED A SENATE OF 49 MEMBERS). 

IN OTHER CASES FEDERAL COURTS HAVE ALTERED THE SIZE OF EXISTING
LEGISLATURES BY APPROXIMATING THE NUMBER OF LEGISLATORS SPECIFIED IN
NEW PLANS THAT THE COURTS WERE NULLIFYING.  SWANN V. ADAMS, 263
F.SUPP.  225 (SD FLA. 1967); WMCA, INC. V. LOMENZO, 238 F.SUPP.  916
(SDNY 1965), AFF'D, 382 U.S. 4 (1965).  THE STATE POLICY THUS HAS BEEN
EFFECTUATED DESPITE THE INVALIDITY OF THE LEGISLATURE'S PROPOSED PLAN. 

/11/  THE 1972 GENERAL ELECTION IN MINNESOTA WILL TAKE PLACE
NOVEMBER 7.  THE PRIMARIES ARE SCHEDULED FOR SEPTEMBER 12.  CANDIDATES
MAY FILE BETWEEN JULY 5 AND JULY 18.  A LEGISLATIVE CANDIDATE MUST
ESTABLISH RESIDENCE IN HIS DISTRICT BY MAY 7.  MINN. STAT. SECS.
203.02, 202.02, 202.04; MINN. CONST. ART. IV, SEC. 25.  INASMUCH AS THE
MINNESOTA LEGISLATURE IS NONPARTISAN, MINN. STAT. SEC. 202.03, SUBD. 1,
THE EARLIER DATES FOR POLITICAL PARTY PRECINCT CAUCUSES AND PARTY
CONVENTIONS HAVE NO RELEVANCE IN THESE CASES.  IF TIME PRESSES TOO
SERIOUSLY, THE DISTRICT COURT HAS THE POWER APPROPRIATELY TO EXTEND THE
TIME LIMITATIONS IMPOSED BY STATE LAW.  SEE SWANN V. CHARLOTTE
MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1, 15 (1971). 

MR. JUSTICE STEWART, DISSENTING. 

IT IS UNDISPUTED HERE THAT THE APPORTIONMENT OF THE MINNESOTA STATE
LEGISLATURE VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  THUS, IT WAS INCUMBENT UPON THE THREE-JUDGE FEDERAL COURT
TO DEVISE A CONSTITUTIONAL REAPPORTIONMENT, UNLESS AND UNTIL THE
MINNESOTA LEGISLATURE AND GOVERNOR COULD AGREE UPON AND ENACT A NEW AND
CONSTITUTIONAL REAPPORTIONMENT OF THEIR OWN.  THE ONLY QUESTION
PRESENTED BY THESE APPEALS IS WHETHER THE THREE-JUDGE COURT ABUSED ITS
EQUITABLE DISCRETION BY DEVISING THE REAPPORTIONMENT PLAN THAT IT DID--
A PLAN THAT CALLED FOR A REDUCTION IN THE SIZE OF BOTH HOUSES OF THE
STATE LEGISLATURE.     THERE IS NO DOUBT THAT "(ONCE A RIGHT AND A
VIOLATION HAVE BEEN SHOWN, THE SCOPE OF A DISTRICT COURT'S EQUITABLE
POWERS TO REMEDY PAST WRONGS IS BROAD, FOR BREATH AND FLEXIBILITY ARE
INHERENT IN EQUITABLE REMEDIES."  SWANN V. CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION, 402 U.S. 1, 15.  AT THE SAME TIME (THE REMEDIAL POWERS OF
AN EQUITY COURT . . . ARE NOT UNLIMITED."  WHITCOMB V. CHAVIS, 403 U.S.
124, 161.  IN THE REAPPORTIONMENT CONTEXT, IT IS THE DUTY OF A COURT
SEEKING TO REMEDY AN UNCONSTITUTIONAL APPORTIONMENT TO RIGHT THE
CONSTITUTIONAL WRONG WHILE MINIMIZING DISTURBANCE OF LEGITIMATE STATE
POLICIES. 

IN THESE CASES, THE THREE-JUDGE COURT APPEARS CONSCIENTIOUSLY TO
HAVE UNDERTAKEN THIS TASK.  IT CLEARLY RECOGNIZED THAT THE SIZE OF THE
HOUSES OF THE MINNESOTA LEGISLATURE SET BY STATE STATUTE WAS A STATE
POLICY DESERVING RESPECT.  BUT IT ALSO RECOGNIZED THAT THERE WERE
SEVERAL OTHER LEGITIMATE STATE POLICIES AT STAKE-- FOR ONE, THE
CONFORMANCE OF LEGISLATIVE DISTRICT BOUNDARIES TO POLITICAL
JURISDICTIONAL BOUNDARIES.  THE THREE-JUDGE COURT ALSO FOUND THAT THESE
POLICIES WERE, UNFORTUNATELY, IN CONFLICT.  IT STATED: 

"THE LARGER THE POPULATION OF EACH SENATE AND HOUSE DISTRICT, THE
MORE CLOSELY CAN THE EQUAL PROTECTION (ONE MAN-ONE VOTE) REQUIREMENTS
BE MET AND STILL GIVE EFFECT TO THE STATE POLICY OF ADHERING TO THE
BOUNDARIES OF POLITICAL POLITICAL SUBDIVISIONS.  CONVERSELY, THE
SMALLER THE POPULATION OF EACH DISTRICT, THE GREATER THE LIKELIHOOD
THAT THE DEVIATIONS WILL BE HIGHER THAN ARE ACCEPTABLE OR THAT
ARTIFICIAL BOUNDARIES WILL RESULT."  FACED WITH THIS PERCEIVED CONFLICT
AMONG LEGITIMATE STATE POLICIES, THE THREE-JUDGE COURT WEIGHED THOSE
POLICIES AND DECIDED THAT PRESERVATION OF POLITICAL JURISDICTIONAL
BOUNDARIES SHOULD TAKE PRECEDENCE OVER PRESERVATION OF THE PRESENT SIZE
OF THE SENATE AND THE HOUSE.  /1/ 

PERHAPS THE THREE-JUDGE COURT'S ASSESSMENT OF THE RELATIVE WEIGHTS
OF WHAT IT SAW AS COMPETING STATE POLICIES WAS MISTAKEN.  PERHAPS ITS
ACCOMMODATION OF THOSE POLICIES WAS ALSO MISTAKEN.  BUT THOSE JUDGMENTS
BY THE THREE-JUDGE COURT WERE BASED ON LONG AND CAREFUL STUDY OF THE
DISTRIBUTION OF POPULATION IN MINNESOTA AND OF THE POSSIBLE ALTERNATIVE
APPORTIONMENTS OF THE LEGISLATURE. 

THIS COURT CHOOSES TO ACT ON THESE APPEALS SUMMARILY.  YET WE DO NOT
HAVE BEFORE US ALL THE POPULATION STATISTICS AND JURISDICTIONAL AND
DISTRICT MAPS THAT WERE BEFORE THE THREE-JUDGE COURT.  WE DO NOT HAVE
THE BENEFIT OF THE REPORTS OF THE SPECIAL MASTERS THAT WERE AVAILABLE
TO THE THREE-JUDGE COURT.  WE DO NOT EVEN HAVE BRIEFS ON THE MERITS OF
THESE CASES.  AND, OF COURSE, WE HAVE NOT HEARD ORAL ARGUMENTS.  FOR
THESE AND OTHER REASONS WE ARE SIMPLY NOT ABLE AT THIS POINT EVEN TO
BEGIN TO EVALUATE THE THREE-JUDGE COURT'S EXERCISE OF ITS REMEDIAL
POWER IN EQUITY. 

SURELY, IF STATE POLICIES ARE IN REAL CONFLICT AND IF, AS THE THREE
JUDGE COURT FOUND, EQUAL PROTECTION REQUIREMENTS CANNOT BE MET WITHOUT
SACRIFICING ONE OF THESE POLICIES, THEN THE CASES ARE VERY DIFFICULT. 
I CERTAINLY CANNOT SAY, ON THE BASIS OF THE INFORMATION BEFORE US, THAT
THE THREE-JUDGE COURT CLEARLY OVERSTEPPED ITS EQUITABLE DISCRETION IN
ITS RESOLUTION OF THE PROBLEM.  AS THE COURT RECOGNIZES TODAY, THERE IS
NO RIGID AND ABSOLUTE LIMIT ON A COURT'S EQUITABLE DISCRETION TO ORDER
CHANGES IN THE SIZE OF LEGISLATIVE BODIES IN ORDER TO REMEDY AN
UNCONSTITUTIONAL APPORTIONMENT.  EVERY CASE IS DIFFERENT, AND THESE
QUESTIONS ARE INEVITABLE QUESTIONS OF DEGREE. 

I HAVE DISAGREED WITH THE COURT'S PROCRUSTEAN VIEW OF THE FOURTEENTH
AMENDMENT'S SUBSTANTIVE REQUIREMENT OF "ONE MAN, ONE VOTE."  /2/  BUT
UNTIL AND UNLESS THOSE ESTABLISHED REQUIREMENTS ARE MODIFIED, THE
FEDERAL COURTS ARE OFTEN GOING TO BE FACED WITH HARD REMEDIAL PROBLEMS
SUCH AS THOSE PRESENTED HERE.  DIFFICULT PROBLEMS PRODUCE SOLUTIONS
THAT ARE DIFFICULT TO REVIEW, EVEN AFTER FULL BRIEFING AND ORAL
ARGUMENT.  I CANNOT BELIEVE THAT SUMMARY ACTION HERE IS EITHER WISE OR
APPROPRIATE, AND I THEREFORE RESPECTFULLY DISSENT. 

/1/  THE COURT ALSO WAS CAREFUL TO RECOGNIZE ANOTHER STATE POLICY--
THAT THERE SHOULD BE AN ODD NUMBER OF LEGISLATORS IN EACH HOUSE SO AS
TO MINIMIZE THE RISK OF TIE VOTES. 

/2/  SEE, E.G. LUCAS V. COLORADO GEN. ASSEMBLY, 377 U.S. 713, 744;
SWANN V. ADAMS, 385 U.S. 440, 447.  SEE ALSO WELLS V. ROCKEFELLER, 394
U.S. 542, 549. 
..END :
























S&E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 


       S&E CONTRACTORS, INC. V. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS

        NO. 70-88.  ARGUED OCTOBER 21, 1971-- REARGUED MARCH 20,

      1972-- DECIDED APRIL 24, 1972 


IN A CONTRACT DISPUTE PROCEDURE, THE ATOMIC ENERGY COMMISSION (AEC)
APPROVED CLAIMS OF ITS CONTRACTOR FOR ADDITIONAL COMPENSATION.  IN
RESPONSE TO AN AEC CERTIFYING OFFICER'S REQUEST FOR ADVICE AS TO ONE
ITEM, HOWEVER, THE GENERAL ACCOUNTING OFFICE (GAO) RULED THAT THE
CLAIMS COULD NOT BE CERTIFIED FOR PAYMENT.  WHEN THE AEC THEN REFUSED
TO PAY THE COMPENSATION, THE CONTRACTOR BROUGHT SUIT IN THE COURT OF
CLAIMS ALLEGING THAT THE GAO HAD NO AUTHORITY TO OVERTURN THE AEC
APPROVAL.  THE GOVERNMENT, THROUGH THE DEPARTMENT OF JUSTICE, DEFENDED
ON THE GROUND THAT THE AEC DETERMINATION WAS NOT FINAL BUT WAS SUBJECT
TO JUDICIAL REVIEW UNDER THE STANDARDS SPECIFIED IN SEC. 321 OF THE
WUNDERLICH ACT, "(THAT . . . THE SAME IS FRAUDULENT OR CAPRICIOUS OR
ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR
IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE."  THE COURT OF CLAIMS HELD
THAT "THE GOVERNMENT HAS THE RIGHT TO THE SAME EXTENT AS THE CONTRACTOR
TO SEEK JUDICIAL REVIEW OF AN UNFAVORABLE ADMINISTRATIVE DECISION ON A
CONTRACT CLAIM."  HELD: 

1.  THE AEC, WHICH FOR THE PURPOSE OF THIS CONTRACT WAS THE UNITED
STATES, HAD EXCLUSIVE ADMINISTRATIVE AUTHORITY UNDER THE DISPUTES
CLAUSE PROCEDURE TO RESOLVE THE DISPUTE HERE AT ISSUE, AND NEITHER THE
CONTRACT BETWEEN THE PARTIES NOR THE WUNDERLICH ACT PERMITTED STILL
FURTHER ADMINISTRATIVE REVIEW BY THE GAO.  PP. 8-12. 

2.  THE WUNDERLICH ACT DOES NOT CONFER UPON THE DEPARTMENT OF
JUSTICE THE RIGHT TO APPEAL FROM A DECISION OF AN ADMINISTRATIVE
AGENCY, NOR IS THIS A CASE INVOLVING A CONTRACTOR'S FRAUD, CONCERNING
WHICH THE DEPARTMENT HAS BROAD POWERS TO ACT UNDER SEVERAL STATUTORY
PROVISIONS.  PP. 12-19. 

193 CT.CL. 335, 433 F.2D 1373, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, BLACKMUN, AND POWELL, JJ., JOINED.  BLACKMUN, J.,
FILED A CONCURRING OPINION, IN WHICH BURGER, C.J., AND STEWART AND
POWELL, JJ., JOINED, POST, P. 19.  BRENNAN, J., FILED A DISSENTING
OPINION, IN WHICH WHITE AND MARSHALL, JJ., JOINED, POST, P. 23. 
REHNQUIST, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER THE DEPARTMENT OF
JUSTICE MAY CHALLENGE THE FINALITY OF A CONTRACT DISPUTES DECISION MADE
BY THE ATOMIC ENERGY COMMISSION (AEC) IN FAVOR OF ITS CONTRACTOR, WHERE
THE CONTRACT PROVIDES THAT THE DECISION OF AEC SHALL BE "FINAL AND
CONCLUSIVE."  SECTION 1 OF THE WUNDERLICH ACT LEAVES OPEN FOR CONTEST A
CLAIM THAT "IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY
ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE."  /1/ 

MOREOVER, 41 U.S.C. 322, PROVIDES THAT "(NO GOVERNMENT CONTRACT
SHALL CONTAIN A PROVISION MAKING FINAL ON A QUESTION OF LAW THE
DECISION OF ANY ADMINISTRATIVE OFFICIAL, REPRESENTATIVE, OR BOARD." 

THE DEPARTMENT OF JUSTICE CHALLENGED THE SETTLEMENT MADE BY THE AEC
ON TWO GROUNDS (1) THAT THE DECISION WAS "NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE" AND (2) THAT IT WAS "ERRONEOUS AS A MATTER OF LAW." 

BUT THE DISPUTES CLAUSE IN THE CONTRACT /2/  SAYS THAT THE DECISION
OF THE AEC IS "FINAL AND CONCLUSIVE," UNLESS A COURT DETERMINES THAT
THE AWARD IS VULNERABLE UNDER SECS. 1 AND 2 OF THE ACT.  THERE IS NO
FEDERAL STATUTE WHICH SUBMITS DISPUTES OF THIS CHARACTER TO REVIEW BY
ONE OR MORE ADMINISTRATIVE AGENCIES, WHERE AS HERE THERE IS NO CHARGE
OF FRAUD OR BAD FAITH.  NOR IS THERE A STATUTE WHICH ENABLES ANOTHER
FEDERAL AGENCY TO CONTEST IN COURT THE VALIDITY OF THE DECISION OF THE
AEC, ABSENT FRAUD OR BAD FAITH. 

IN PLAIN LAY LANGUAGE THE QUESTION THEN IS WHETHER, ABSENT FRAUD OR
BAD FAITH, THE CONTRACTOR CAN RELY ON THE RULING OF THE FEDERAL AGENCY
WITH WHICH IT MADE THE CONTRACT OR CAN BE FORCED TO GO THROUGH STILL
ANOTHER TIER OF FEDERAL REVIEW.  WE HOLD THAT ABSENT FRAUD OR BAD FAITH
THE FEDERAL AGENCY'S SETTLEMENT UNDER THE DISPUTES CLAUSE IS BINDING ON
THE GOVERNMENT; THAT THERE IS NOT ANOTHER TIER OF ADMINISTRATIVE
REVIEW; AND THAT, SAVE FOR FRAUD OR BAD FAITH, THE DECISION OF AEC IS
"FINAL AND CONCLUSIVE," IT BEING FOR THESE PURPOSES THE FEDERAL
GOVERNMENT.  WE REVERSE THE JUDGMENT OF THE COURT OF CLAIMS. 

        I 

ON AUGUST 4, 1961, PETITIONER CONTRACTED WITH THE AEC TO BUILD A
TESTING FACILITY AT THE NATIONAL REACTOR TEST STATION IN IDAHO.  THE
WORK WAS COMPLETED AND ACCEPTED BY THE AEC ON JUNE 29, 1962.  BECAUSE
OF VARIOUS CHANGES IN CONTRACT SPECIFICATIONS AND DIFFICULTIES IN
MEETING PERFORMANCE SCHEDULES, PETITIONER SUBMITTED A SERIES OF CLAIMS
TO THE CONTRACTING OFFICER FOR RESOLUTION UNDER THE STANDARD DISPUTES
CLAUSE CONTAINED IN THE CONTRACT, ASKING FOR EQUITABLE MODIFICATIONS OF
THE CONTRACT AND ADDITIONAL COMPENSATION.  ON AUGUST 8 AND NOVEMBER 8,
1962, THE CONTRACTING OFFICER APPROVED SOME OF THE CLAIMS AND
DISAPPROVED OTHERS, AND THE PETITIONER SOUGHT REVIEW OF THE ADVERSE
DECISIONS WITH THE AEC. 

SINCE IT DID NOT THEN HAVE A CONTRACT APPEALS BOARD, /3/  THE
COMMISSION REFERRED PETITIONER'S APPEAL TO A HEARING EXAMINER, BEFORE
WHOM AN ADVERSARY HEARING WAS HELD.  ON JUNE 26, 1963, THE EXAMINER
DECIDED IN FAVOR OF EIGHT OF PETITIONER'S CLAIMS AND REMANDED THE
DISPUTE TO THE CONTRACTING OFFICER FOR NEGOTIATIONS TO DETERMINE THE
EXACT AMOUNT DUE PETITIONER.  2 A.E.C. 631.  THE CONTRACTING OFFICER
THEN SOUGHT REVIEW OF THIS DECISION BY THE COMMISSION.  SEE 10 CFR
2.760 (JAN. 1, 1963). 

THE COMMISSION DECLINED TO REVIEW FOUR OF THE CLAIMS, 2 A.E.C. 738,
WHICH HAD THE EFFECT OF SUSTAINING THE EXAMINER'S DECISION ON THEM.  10
CFR 2.762(A) (JAN. 1, 1963).  INCLUDED WITHIN THIS GROUP WAS THE
EXAMINER'S DETERMINATION THAT AMOUNTS DUE PETITIONER COULD NOT BE
RETAINED TO OFFSET CLAIMS ALLEGEDLY OWNED BY PETITIONER TO OTHER
CONTRACTORS AND OTHER AGENCIES OF GOVERNMENT.  THE COMMISSION MODIFIED
THE EXAMINER'S DECISION ON THREE OF THE REMAINING CLAIMS AND REVERSED
HIM ON THE LAST, WHICH PETITIONER HAS SINCE ABANDONED.  IT "REMANDED TO
THE CONTRACTING OFFICER WITH INSTRUCTIONS TO PROCEED TO FINAL
SETTLEMENT OR DECISION IN ACCORDANCE WITH THE DECISION OF THE HEARING
EXAMINER DATED JUNE 26, 1963, AS MODIFIED BY (ITS) ORDER OF NOVEMBER
14, 1963, AND BY (THAT) DECISION."  2 A.E.C. 850, 856. 

ON MARCH 6, 1964, PRIOR TO THE AEC'S FINAL RULING BUT AFTER IT HAD
UPHELD THE EXAMINER'S DECISION ON THE "RETAINAGE" CLAIM, A CERTIFYING
OFFICER OF THE COMMISSION REQUESTED THE OPINION OF THE GENERAL
ACCOUNTING OFFICE ON WHETHER A VOUCHER FOR THE RETAINAGE CLAIM COULD BE
CERTIFIED FOR PAYMENT.  JURISDICTION FOR THE COMPTROLLER GENERAL'S
REVIEW WAS PURPORTEDLY FOUNDED UPON 31 U.S.C. 82D.  /4/  AFTER SOME 33
MONTHS OF WHAT AMOUNTED TO A PLENARY REVIEW OF THE PROCEEDINGS BEFORE
THE EXAMINER, THE COMPTROLLER GENERAL CONCLUDED THAT THE VOUCHER COULD
NOT BE CERTIFIED FOR PAYMENT.  46 COMP.GEN.  441.  ON MARCH 27, 1967,
THE AEC WROTE PETITIONER, SAYING, "THE ATOMIC ENERGY COMMISSION'S VIEW
IS THAT S&E CONTRACTORS, INC. HAS EXHAUSTED ITS ADMINISTRATIVE RECOURSE
TO THE COMMISSION.  THE COMMISSION WILL TAKE NO ACTION, IN CONNECTION
WITH THE CLAIMS, INCONSISTENT WITH THE VIEWS EXPRESSED BY THE
COMPTROLLER GENERAL . . . . "  THE PETITIONER THEN BROUGHT THIS ACTION
IN THE COURT OF CLAIMS SEEKING A JUDGMENT OF $1.95 MILLION AND AN ORDER
REMANDING THE CASE FOR NEGOTIATIONS ON THE TIME EXTENSION TO WHICH IT
CLAIMED IT WAS ENTITLED UNDER THE AEC'S ORIGINAL DECISION. 

THE DEFENSES TENDERED RAISED NO ISSUE OF ANY FRAUD OR BAD FAITH OF
THE CONTRACTOR AGAINST THE UNITED STATES. 

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, A COMMISSIONER OF THE COURT
OF CLAIMS RULED IN FAVOR OF PETITIONER, HOLDING THAT THE GENERAL
ACCOUNTING OFFICER LACKED AUTHORITY TO REVIEW THE DECISION OF THE AEC
AND THAT THE AEC'S REFUSAL TO FOLLOW ITS OWN DECISIONS FAVORABLE TO
PETITIONER WAS A BREACH OF THE DISPUTES CLAUSE OF THE CONTRACT.  ON
REVIEW BY THE COURT OF CLAIMS, HOWEVER, THAT DECISION WAS REVERSED BY A
FOUR-TO-THREE VOTE.  WHILE THE MAJORITY ACKNOWLEDGED "THAT THE
COMPTROLLER GENERAL EFFECTIVELY STOPPED PAYMENT OF THE CLAIMS," IT DID
NOT PASS UPON THE LEGALITY OF THAT ACTION.  193 CT.CL. 335, 340, 433
F.2D 1373, 1375.  REASONING, INSTEAD, THAT THE WUNDERLICH ACT ALLOWED
BOTH THE DEPARTMENT OF JUSTICE AND CONTRACTORS AN EQUAL RIGHT TO
JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS AND THAT THE AEC'S REFUSAL
TO ABIDE BY ITS EARLIER DECISION WAS A PERMISSIBLE MEANS OF OBTAINING
THIS REVIEW, IT REMANDED PETITIONER'S CLAIMS "TO THE COMMISSIONER FOR
HIS CONSIDERATION AND REPORT ON THE VARIOUS CLAIMS UNDER WUNDERLICH ACT
STANDARDS."  ID., AT 351, 433 F.2D, AT 1381. 

THE COMMISSIONER DID NOT BASE HIS OPINION ON ANY ISSUE OF FRAUD OR
BAD FAITH OF THE CONTRACTOR AGAINST THE UNITED STATES, NOR DID THE
COURT OF CLAIMS.  THE CASE IS NOW HERE ON A PETITION FOR WRIT OF
CERTIORARI WHICH WE GRANTED.  402 U.S. 971. 

PETITIONER ARGUES THAT NEITHER THE TEXT NOR THE LEGISLATIVE HISTORY
OF THE WUNDERLICH ACT SUPPORTS THE RIGHT OF THE UNITED STATES TO SEEK
JUDICIAL REVIEW OF AN ADMINISTRATIVE DECISION ON A CONTRACTUAL DISPUTE,
THAT THE GENERAL ACCOUNTING OFFICE WAS WITHOUT STATUTORY OR CONTRACTUAL
AUTHORITY TO OVERTURN THE AEC'S DECISION, AND THAT THE AEC SHOULD NOT
BE ALLOWED TO ABANDON AFTER SOME 33 MONTHS ITS OWN DECISION THAT HAD
BEEN MADE IN PETITIONER'S FAVOR.  IN RESPONSE, THE SOLICITOR GENERAL
CONTENDS THAT THE WUNDERLICH ACT DOES GIVE THE DEPARTMENT OF JUSTICE
THE RIGHT OF JUDICIAL REVIEW OF CONTRACT DECISIONS MADE BY FEDERAL
ADMINISTRATIVE AGENCIES AND THAT THE DEPARTMENT OF JUSTICE IS FREE TO
ASSERT WHATEVER DEFENSES IT DESIRES IN THE COURT OF CLAIMS WITHOUT
REGARD TO THE EARLIER ACTIONS OF THE FEDERAL CONTRACTING AGENCY. 

        II 

THE DISPUTES CLAUSE INCLUDED IN GOVERNMENT CONTRACTS IS INTENDED,
ABSENT FRAUD OR BAD FAITH, TO PROVIDE A QUICK AND EFFICIENT
ADMINISTRATIVE REMEDY AND TO AVOID "VEXATIOUS AND EXPENSIVE AND, TO THE
CONTRACTOR OFTENTIMES, RUINOUS LITIGATION."  KIHLBERG V. UNITED STATES,
97 U.S. 398, 401 (1878).  THE CONTRACTOR HAS CEDED HIS RIGHT TO SEEK
IMMEDIATE JUDICIAL REDRESS FOR HIS GRIEVANCES AND HAS CONTRACTUALLY
BOUND HIMSELF TO "PROCEED DILIGENTLY WITH THE PERFORMANCE OF THE
CONTRACT" DURING THE DISPUTES PROCESS.  THE PURPOSE OF AVOIDING
"VEXATIOUS LITIGATION" WOULD NOT BE SERVED, HOWEVER, BY SUBSTITUTING
THE ACTION OF OFFICIALS ACTING IN DEROGATION OF THE CONTRACT.  /5/ 

THE RESULT IN SOME CASES MIGHT BE SHEER DISASTER.  IN THE PRESENT
CASE NEARLY A DECADE HAS PASSED SINCE PETITIONER COMPLETED THE
PERFORMANCE OF A CONTRACT UNDER WHICH THE ONLY AGENCY EMPOWERED TO ACT
DETERMINED THAT IT WAS ENTITLED TO PAYMENT.  TO POSTPONE PAYMENT FOR
SUCH A PERIOD IS TO SANCTION PRECISELY THE SORT OF "VEXATIOUS
LITIGATION" WHICH THE DISPUTES PROCESS WAS DESIGNED TO AVOID. 

HERE, PETITIONER CONTRACTED WITH THE UNITED STATES ACTING THROUGH
THE AEC AND IT WAS EXCLUSIVELY WITH THIS COMMISSION THAT THE
ADMINISTRATIVE RESOLUTION OF DISPUTES RESTED.  DISPUTES INITIALLY WERE
TO BE RESOLVED BETWEEN THE CONTRACTOR AND THE CONTRACTING OFFICER AND,
IF A SETTLEMENT SATISFACTORY TO THE CONTRACTOR COULD BE REACHED AT THAT
LEVEL, NO REVIEW WOULD LIE.  /6/  SEE UNITED STATES V. MASON & HANGER
CO., 260 U.S. 323; UNITED STATES V. CORLISS STEAM-ENGINE CO., 91 U.S.
321. 

BY THE DISPUTES CLAUSE /7/  THE DECISION OF THE AEC IS "FINAL AND
CONCLUSIVE" UNLESS "A COURT OF COMPETENT JURISDICTION" DECIDES
OTHERWISE FOR THE ENUMERATED REASONS.  NEITHER THE WUNDERLICH ACT NOR
THE DISPUTES CLAUSE EMPOWERS ANY OTHER ADMINISTRATIVE AGENCY TO HAVE A
VETO OF THE AEC'S "FINAL" DECISION OR AUTHORITY TO REVIEW IT.  NOR DOES
ANY OTHER ACT OF CONGRESS, EXCEPT WHERE FRAUD OR BAD FAITH IS INVOLVED,
GIVE ANY OTHER PART OF THE EXECUTIVE BRANCH AUTHORITY TO SUBMIT THE
MATTER TO ANY COURT FOR DETERMINATION.  IN OTHER WORDS, WE CANNOT INFER
THAT BY SOME LEGERDEMAIN THE DISPUTES CLAUSE SUBMITTED THE DISPUTE TO
FURTHER ADMINISTRATIVE CHALLENGE OR APPROVAL, /8/  AND DID NOT MEAN
WHAT IT SAYS WHEN IT MADE THE AEC'S DECISION "FINAL AND CONCLUSIVE." 
SEE UNITED STATES V. MASON & HANGER CO., SUPRA, AT 326.  KIPPS, THE
RIGHT OF THE GOVERNMENT TO HAVE JUDICIAL REVIEW OF A BOARD OF CONTRACT
APPEALS DECISION MADE UNDER THE DISPUTES CLAUSE, 2 PUB.CONTRACT L.J.
286 (1969); SCHULTZ, WUNDERLICH REVISITED:  NEW LIMITS ON JUDICIAL
REVIEW OF ADMINISTRATIVE DETERMINATION OF GOVERNMENT CONTRACT DISPUTES,
29 LAW & CONTEMP.PROB.  115, 132-133 (1964). 

A CITIZEN HAS THE RIGHT TO EXPECT FAIR DEALING FROM HIS GOVERNMENT,
SEE VITARELLI V. SEATON, 359 U.S. 535, AND THIS ENTAILS IN THE PRESENT
CONTEXT TREATING THE GOVERNMENT AS A UNIT RATHER THAN AS AN AMALGAM OF
SEPARATE ENTITIES.  HERE, THE AEC SPOKE FOR THE UNITED STATES AND ITS
DECISION, ABSENT FRAUD OR BAD FAITH, SHOULD BE HONORED.  CF. NLRB V.
NASH-FINCH CO., 404 U.S. 138. 

SINCE THE AEC WITHHELD PAYMENT SOLELY BECAUSE OF THE VIEWS OF THE
COMPTROLLER GENERAL AND SINCE HE HAD BEEN GIVEN NO AUTHORITY TO
FUNCTION AS ANOTHER TIER OF ADMINISTRATIVE REVIEW, THERE WAS NO VALID
REASON FOR THE AEC NOT TO SETTLE WITH PETITIONER ACCORDING TO ITS
EARLIER DECISION.  FOR THAT PURPOSE THE AEC WAS THE UNITED STATES.  CF.
SMALL BUSINESS ADMINISTRATION V. MCCLELLAN, 364 U.S. 446, 449. 

THE CASES DENY REVIEW BY THE COMPTROLLER GENERAL OF ADMINISTRATIVE
DISPUTES CLAUSE DECISIONS AS "WITHOUT LEGAL AUTHORITY" ABSENT FRAUD OR
OVERREACHING.  E.G., MCSHAIN CO. V. UNITED STATES, 83 CT.CL. 405, 409
(1936).  IN JAMES GRAHAM MFG. CO. V. UNITED STATES, 91 F.SUPP.  715 (ND
CAL. 1950), FOR EXAMPLE, THE CONTRACTING AGENCY HAD DETERMINED THAT THE
CONTRACTOR WAS ENTITLED TO REIMBURSEMENT FOR CERTAIN EXPENDITURES UNDER
TWO COST-PLUS-FEE CONTRACTS, BUT THE COMPTROLLER GENERAL REFUSED
PAYMENT.  WHILE THE COURT NOTED THE "EXTENSIVE AND BROAD" POWERS OF THE
COMPTROLLER GENERAL, IT HELD THAT, ABSENT INSTANCES OF "FRAUD OR
OVERREACHING," WHERE THE COMPTROLLER GENERAL'S POWER WAS FOUNDED UPON
SPECIFIC STATUTORY PROVISIONS SUCH AS 41 U.S.C. 53, HE HAD NO
"AUTHORITY TO DETERMINE THE PROPRIETY OF CONTRACT PAYMENTS" APPROVED BY
THE CONTRACTING AGENCY.  91 F.SUPP.,AT 716.  ACCORDINGLY, SUMMARY
JUDGMENT WAS ENTERED BY THE COURT, WHICH SAID, "SINCE THE NAVY
DEPARTMENT HAS DETERMINED THAT PLAINTIFF CONTRACTOR IS ENTITLED TO THE
PAYMENT SOUGHT, THIS COURT MUST ADJUDGE ACCORDINGLY."  ID., AT 717. 

CONGRESS CONTEMPLATED GIVING THE GENERAL ACCOUNTING OFFICE SUCH
POWERS AND, INDEED, THE SENATE TWICE PASSED-- IN THE FORM OF THE
MCCARRAN BILL-- A PROVISION WHICH WOULD HAVE ALLOWED THE COMPTROLLER TO
REVIEW DISPUTES DECISIONS TO DETERMINE IF THEY WERE "FRAUDULENT,
GROSSLY ERRONEOUS, SO MISTAKEN AS NECESSARILY TO IMPLY BAD FAITH, OR
NOT SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE."  S.
24, 83D CONG., 1ST SESS. (1953).  "IF ENACTED, IT WOULD (HAVE)
INVESTED) THE GAO WITH THE POWER-- WHICH IT HAS NEVER HAD-- TO UPSET AN
ADMINISTRATIVE DECISION WHICH IT (FOUND) 'GROSSLY ERRONEOUS' OR NOT
SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE.'"  SCHULTZ,
PROPOSED CHANGES IN GOVERNMENT CONTRACT DISPUTES SETTLEMENT:  THE
LEGISLATIVE BATTLE OVER THE WUNDERLICH CASE, 67 HARV.L.REV.  217, 243
(1953).  THE HOUSE OF REPRESENTATIVES REJECTED THIS PROVISION, HOWEVER,
AND THE WUNDERLICH ACT WAS ULTIMATELY PASSED IN ITS PRESENT FORM.  WE
CANNOT THEREFORE, CONSTRUE IT TO GIVE THE COMPTROLLER GENERAL POWERS
WHICH CONGRESS HAS PLAINLY DENIED.     IT IS SUGGESTED, HOWEVER, THAT
THE COMPTROLLER GENERAL'S POWER IS NOT ONE OF REVIEW OVER THE AEC
DECISION BUT IS MERELY THE POWER "TO FORCE THE CONTRACTOR TO BRING SUIT
AND THUS TO OBTAIN JUDICIAL REVIEW FOR THE GOVERNMENT."  THE DISPUTES
CLAUSE, HOWEVER, SETS FORTH THE ADMINISTRATIVE MEANS FOR RESOLVING
CONTRACTUAL DISPUTES.  UNDER THE PRESENT CONTRACT THE AEC IS THE FINAL
ADMINISTRATIVE ARBITER OF SUCH CLAIMS AND NOWHERE IS THERE A PROVISION
FOR OVERSIGHT BY THE COMPTROLLER GENERAL.  THE COMPTROLLER GENERAL,
HOWEVER, CONDUCTED A 33-MONTH DE NOVO REVIEW OF THE AEC PROCEEDINGS; HE
BLOCKED THE PAYMENT TO WHICH THE AEC DETERMINED PETITIONER WAS
ENTITLED; AND HE PLACED UPON PETITIONER THE BURDEN OF GOING TO THE
COURT OF CLAIMS TO RECEIVE THAT PAYMENT.  THAT ACTION BY THE
COMPTROLLER GENERAL WAS A FORM OF ADDITIONAL ADMINISTRATIVE OVERSIGHT
FORECLOSED BY THE DISPUTES CLAUSE. 

        III 

A MAJORITY OF THE COURT OF CLAIMS HELD "THAT THE GOVERNMENT HAS THE
RIGHT TO THE SAME EXTENT AS THE CONTRACTOR TO SEEK JUDICIAL REVIEW OF
AN UNFAVORABLE ADMINISTRATIVE DECISION ON A CONTRACT CLAIM."  193
CT.CL.,AT 346, 433 F.2D, AT 1378.  THE SOLICITOR GENERAL ADOPTS THIS
VIEW AND SEES IN THE ATTORNEY GENERAL'S OBLIGATION TO CONDUCT
LITIGATION ON BEHALF OF THE UNITED STATES, 28 U.S.C. 516, 519, THE
POWER TO OVERTURN DECISIONS OF COORDINATE OFFICES OF THE EXECUTIVE
DEPARTMENT. 

THE ATTORNEY GENERAL HAS THE DUTY TO "CONDUCT . . . LITIGATION IN
WHICH THE UNITED STATES, AN AGENCY, OR OFFICER THEREOF IS SUCH A
PARTY," 28 U.S.C. 516, AND TO "SUPERVISE ALL (SUCH) LITIGATION," 28
U.S.C. 519.  THAT POWER IS PERVASIVE BUT IT DOES NOT APPEAR HOW UNDER
THE WUNDERLICH ACT IT GIVES THE DEPARTMENT OF JUSTICE THE RIGHT TO
APPEAL FROM A DECISION OF THE ATOMIC ENERGY COMMISSION.  NORMALLY,
WHERE THE RESPONSIBILITY FOR RENDERING A DECISION IS VESTED IN A
COORDINATE BRANCH OF GOVERNMENT, THE DUTY OF THE DEPARTMENT OF JUSTICE
IS TO IMPLEMENT THAT DECISION AND NOT TO REPUDIATE IT.  SEE 39
OP.ATTY.GEN.  67, 68 (1937); 38 OP.ATTY.GEN.  149, 150 (1934); 25
OP.ATTY.GEN.  524, 529 (1905); 25 OP.ATTY.GEN.  93, 96 (1903); 29
OP.ATTY.GEN.  711, 713 (1894); 29 OP.ATTY.GEN.  270, 272 (1891); 17
OP.ATTY.GEN.  332, 333 (1882).  INDEED, THIS VIEW OF THE ROLE OF THE
DEPARTMENT OF JUSTICE MAY BE TRACED BACK TO WILLIAM WIRT, THE FIRST OF
OUR ATTORNEYS GENERAL TO KEEP DETAILED RECORDS OF HIS TENURE IN
OFFICE.  "WIRT IT WAS WHO FIRST RECORDED THE PROPOSITIONS THAT THE
ATTORNEY GENERAL DOES NOT DECIDE QUESTIONS OF FACT, THAT THE ATTORNEY
GENERAL DOES NOT SIT AS AN ARBITRATOR IN DISPUTES BETWEEN THE
GOVERNMENT DEPARTMENTS AND PRIVATE INDIVIDUALS NOR AS A REVIEWING
OFFICER TO HEAR APPEALS FROM THE DECISIONS OF PUBLIC OFFICERS.  . . . "
H. CUMMINGS & C. MCFARLAND, FEDERAL JUSTICE 84 (1937). 

THE POWER TO APPEAL TO THE COURT OF CLAIMS A DECISION OF THE FEDERAL
AGENCY UNDER A DISPUTES CLAUSE IN A CONTRACT WHICH THE AGENCY IS
AUTHORIZED TO MAKE IS NOT TO BE FOUND IN THE WUNDERLICH ACT AND ITS
UNDERLYING LEGISLATIVE HISTORY.  /9/  THAT ACT WAS DESIGNED TO OVERTURN
OUR DECISION IN UNITED STATES V. WUNDERLICH, 342 U.S. 98 (1951), WHICH
HAD CLOSED THE COURTHOUSE DOORS TO CERTAIN CITIZENS AGGRIEVED BY
ADMINISTRATIVE ACTION AMOUNTING TO SOMETHING LESS THAN FRAUD.  SEE S.
REP. NO. 32, 83D CONG., 1ST SESS.; H.R. REP. NO. 1380, 83D CONG., 2D
SESS.  IT SHOULD NOT BE CONSTRUED TO REQUIRE A CITIZEN TO PERFORM THE
HERCULEAN TASK OF BEHEADING THE HYDRA IN ORDER TO OBTAIN JUSTICE FROM
HIS GOVERNMENT. 

WE ARE RELUCTANT TO CONSTRUE A STATUTE ENACTED TO FREE CITIZENS FROM
A FORM OF ADMINISTRATIVE TYRANNY SO AS TO SUBJECT THEM TO ADDITIONAL
BUREAUCRATIC OVERSIGHT, WHERE THERE IS NO EVIDENCE OF FRAUD OR
OVERREACHING.  IN THIS CONNECTION.  IT SHOULD BE NOTED THAT COMMITTEE
REPORTS ACCOMPANYING THE WUNDERLICH ACT INDICATE THAT JUDICIAL REVIEW
WAS PROVIDED SO THAT CONTRACTORS WOULD NOT INFLATE THEIR BIDS TO TAKE
INTO ACCOUNT THE UNCERTAINTIES OF ADMINISTRATIVE ACTION.  /10/  THIS
OBJECTIVE WOULD BE ILL SERVED IF GOVERNMENT CONTRACTORS-- HAVING WON A
FAVORABLE DECISION BEFORE THE AGENCIES WITH WHOM THEY CONTRACTED-- HAD
ALSO TO RUN THE GANTLET OF THE GENERAL ACCOUNTING OFFICE AND THE
DEPARTMENT OF JUSTICE. 

        IV 

A CONTRACTOR'S FRAUD IS OF COURSE A WHOLLY DIFFERENT GENUS THAN THE
CASE BEFORE US.  EVEN WHERE THE CONTRACTOR HAS OBTAINED A JUDGMENT AND
THE TIME FOR REVIEW OF IT HAS EXPIRED, FRAUD ON AN ADMINISTRATIVE
AGENCY OR ON THE COURT ENFORCING THE AGENCY ACTION IS GROUND FOR
SETTING ASIDE THE JUDGMENT.  "(SETTING ASIDE THE JUDGMENT TO PERMIT A
NEW TRIAL, ALTERING THE TERMS OF THE JUDGMENT, OR RESTRAINING THE
BENEFICIARIES OF THE JUDGMENT FROM TAKING ANY BENEFIT WHATEVER FROM
IT," HAZEL-ATLAS CO. V. HARTFORD CO., 322 U.S. 238, 245.  ARE THE USUAL
FORMS OF RELIEF WHICH HAVE BEEN GRANTED.  PATENTS OBTAINED WITH UNCLEAN
HANDS AND CONTRACTS THAT ARE BASED ON THOSE PATENTS ARE SIMILARLY
TAINTED AND WILL NOT BE ENFORCED.  PRECISION CO. V. AUTOMOTIVE CO., 324
U.S. 806.  CONTRACTS WITH THE UNITED STATES-- LIKE PATENTS-- ARE
MATTERS CONCERNING FAR MORE THAN THE INTEREST OF THE ADVERSE PARTIES;
THEY ENTAIL THE PUBLIC INTEREST: 

     "(WHERE A SUIT IN EQUITY CONCERNS THE PUBLIC INTEREST AS WELL

  AS THE PRIVATE INTERESTS OF THE LITIGANTS THIS DOCTRINE ASSUMES

  EVEN WIDER AND MORE SIGNIFICANT PROPORTIONS.  FOR IF AN EQUITY

  COURT PROPERLY USES THE MAXIM TO WITHHOLD ITS ASSISTANCE IN SUCH

  A CASE IT NOT ONLY PREVENTS A WRONGDOER FROM ENJOYING THE FRUITS

  OF HIS TRANSGRESSION BUT AVERTS AN INJURY TO THE PUBLIC."  ID.,

  AT 815. 

CONGRESS HAS MADE ELABORATE PROVISIONS FOR DEALING WITH FRAUDULENT
CLAIMS OF CONTRACTORS.  WHERE THE COMPTROLLER GENERAL IS CONVINCED
"THAT ANY SETTLEMENT WAS INDUCED BY FRAUD," HE IS DIRECTED TO "CERTIFY
. . . ALL THE FACTS . . . TO THE DEPARTMENT OF JUSTICE, TO THE
ADMINISTRATOR OF GENERAL SERVICES, AND TO THE CONTRACTING AGENCY
CONCERNED."  58 STAT. 664, AS AMENDED, 42 U.S.C. 116(B).  THE
ADMINISTRATOR OF GENERAL SERVICES IS ALSO GIVEN BROAD POWERS OF
INVESTIGATION AND HE IS DIRECTED TO GIVE THE DEPARTMENT OF JUSTICE "ANY
INFORMATION RECEIVED BY HIM INDICATING ANY FRAUDULENT PRACTICES.  FOR
APPROPRIATE ACTION."  41 U.S.C. 118(D).  MOREOVER, WHENEVER "ANY
CONTRACTING AGENCY OR THE ADMINISTRATOR OF GENERAL SERVICES BELIEVES
THAT ANY SETTLEMENT WAS INDUCED BY FRAUD,"  THE FACTS SHALL BE REPORTED
TO THE DEPARTMENT OF JUSTICE.  41 U.S.C. 118(E).  AND THE DEPARTMENT OF
JUSTICE IS GIVEN BROAD POWERS TO ACT.  IBID.  IN ADDITION, CONGRESS HAS
IMPOSED SEVERE PENALTIES ON CONTRACTORS WHO COMMIT FRAUDULENT ACTS AND
IT HAS GIVEN THE FEDERAL COURTS POWER TO HEAR AND DETERMINE SUCH
CASES.  41 U.S.C. 119. 

BROAD, FLEXIBLE CIVIL REMEDIES ARE ALSO PROVIDED AGAINST THOSE WHO
"USE OR ENGAGE IN . . . AN AGREEMENT, COMBINATION, OR CONSPIRACY TO USE
OR ENGAGE IN OR TO CAUSE TO BE USED OR ENGAGED IN, ANY FRAUDULENT
TRICK, SCHEME, OR DEVICE, FOR THE PURPOSE OF SECURING OR OBTAINING, OR
AIDING TO SECURE OR OBTAIN, FOR ANY PERSON ANY PAYMENT, PROPERTY, OR
OTHER BENEFITS FROM THE UNITED STATES OR ANY FEDERAL AGENCY IN
CONNECTION WITH THE PROCUREMENT, TRANSFER OR DISPOSITION OF PROPERTY. 
. . . "  63 STAT. 392, 40 U.S.C. 489(B). 

AS TO THE COURT OF CLAIMS, 28 U.S.C. 2514 PROVIDES THAT:  "A CLAIM
AGAINST THE UNITED STATES SHALL BE FORFEITED TO THE UNITED STATES BY
ANY PERSON WHO CORRUPTLY PRACTICES OR ATTEMPTS TO PRACTICE ANY FRAUD
AGAINST THE UNITED STATES IN THE PROOF, STATEMENT, ESTABLISHMENT, OR
ALLOWANCE THEREOF. 

"IN SUCH CASES THE COURT OF CLAIMS SHALL SPECIFICALLY FIND SUCH
FRAUD OR ATTEMPT AND RENDER JUDGMENT OF FORFEITURE."  /11/ 

THESE STATUTORY PROVISIONS SHOW THAT, APART FROM THE INHERENT POWER
OF COURTS TO DEAL WITH FRAUD, THE DEPARTMENT OF JUSTICE INDUBITABLY HAS
STANDING TO APPEAR OR INTERVENE AT ANY TIME IN ANY APPROPRIATE COURT TO
RESTRAIN ENFORCEMENT OF CONTRACTS WITH THE UNITED STATES BASED ON
FRAUD.  SEE, E.G., UNITED STATES V. HOUGHAM, 364 U.S. 310 (1960); REX
TRAILER CO. V. UNITED STATES, 350 U.S. 148 (1956); UNITED STATES V.
DINERSTEIN, 362 F.2D 852 (CA2 1966). 

SO FAR AS THE WUNDERLICH ACT IS CONCERNED, IT IS IRRELEVANT WHETHER
THE ADMINISTRATIVE AGENCY DECIDING THIS DISPUTE IS THE AEC OR THE AEC'S
BOARD OF CONTRACT APPEALS.  IT WAS COMMON IN THE BEGINNING TO GIVE
FINAL AUTHORITY OVER THE RESOLUTION OF DISPUTES UNDER A GOVERNMENT
CONTRACT TO THE DESIGNATED CONTRACTING OFFICER, SAVE FOR "FRAUD OR SUCH
GROSS MISTAKE AS WOULD NECESSARILY IMPLY BAD FAITH, OR A FAILURE TO
EXERCISE AN HONEST JUDGMENT."  KIHLBERG V. UNITED STATES, 97 U.S.,AT
402.  LATER CAME THE PRESENT BOARDS OF CONTRACT APPEALS. 

BOARDS OF CONTRACT APPEALS WITHIN THE RESPECTIVE AGENCIES TODAY ARE
COMMON.  THEY ARE NOT STATUTORY CREATIONS BUT ARE ESTABLISHED BY
ADMINISTRATIVE REGULATIONS.  S. DOC. NO. 99, 89TH CONG., 2D SESS.,
OPERATION AND EFFECTIVENESS OF GOVERNMENT BOARDS OF CONTRACT APPEALS 20
21.  THEIR DECISIONS "CONSTITUTE ADMINISTRATIVE ADJUDICATION IN ITS
PUREST SENSE."  ID., AT 21.  AS NOTED, /12/  THE AEC HAS HAD A BOARD OF
CONTRACT APPEALS SINCE 1964.  BOARDS OF CONTRACT APPEALS WERE IN EFFECT
LONG BEFORE THE WUNDERLICH ACT AND THAT EXPLAINS WHY THE ACT PROVIDES
FOR REVIEW "OF ANY DECISION OF THE HEAD OF ANY DEPARTMENT OR AGENCY OR
HIS DULY AUTHORIZED REPRESENTATIVE OR BOARD."  41 U.S.C. 321. 

WE HELD IN UNITED STATES V. BIANCHI & CO., 373 U.S. 709, THAT EVEN
WHERE THE DECISION ON REVIEW IN THE COURT OF CLAIMS IS THAT OF A BOARD
OF CONTRACT APPEALS, THE REVIEW MUST BE ON THE ADMINISTRATIVE RECORD
AND THAT NO TRIAL DE NOVO MAY BE HELD.  THAT DECISION LED TO PROPOSALS
IN CONGRESS THAT, IN EFFECT, RULINGS OF CONTRACT APPEALS BOARDS BE
DENIED FINALITY.  /13/  S. DOC. NO. 99, SUPRA, AT 25-26 AND N. 70.  BUT
CONGRESS HAS NOT TAKEN THAT STEP.  SOME HAVE URGED THAT WHERE A
DECISION OF A BOARD OF CONTRACT APPEALS IS INVOLVED, THE UNITED STATES
SHOULD HAVE STANDING TO APPEAL TO THE COURT OF CLAIMS.  ID., AT 159. 
BUT OUR LEADING AUTHORITY ON THESE PROBLEMS, PROFESSOR HAROLD C.
PETROWITZ, WHO WROTE S. DOC. NO. 99, SUPRA, OBSERVED, "THIS HAS NEVER
BEEN DONE, AND THE PROCEDURE MAY APPEAR ANOMALOUS IN VIEW OF THE
RELATIVELY CLOSE RELATIONSHIP BETWEEN BOARDS AND THE AGENCIES THEY
SERVE."  IBID.  HOWEVER SERIOUS THE PROBLEM MAY BE AND WHATEVER ITS
DIMENSIONS, IT IS OBVIOUSLY ONE FOR THE CONGRESS TO RESOLVE, NOT FOR US
TO RESOLVE WITHIN THE LIMITS OF THE WUNDERLICH ACT. 

THIS CASE DOES NOT INVOLVE THE SITUATION WHERE AN ADMINISTRATIVE
AGENCY, UPON TIMELY PETITION FOR REHEARING OR PROMPT SUA SPONTE
RECONSIDERATION, DETERMINES THAT ITS EARLIER DECISION WAS WRONG AND,
FOR THAT REASON, REFUSES TO ABIDE BY IT.  THE AEC HAS NOT, TO THIS DAY,
REPUDIATED THE MERITS OF ITS DECISIONS IN FAVOR OF PETITIONER.  NOR, TO
REPEAT, IS THIS A CASE OF A FRAUD OF A CONTRACTOR AGAINST THE UNITED
STATES.  THIS IS SIMPLY AN INSTANCE WHERE A CONTRACTOR SUCCESSFULLY
RESOLVED ITS DISPUTES WITH THE AGENCY WITH WHICH IT HAD CONTRACTED AND
TO WHOM THAT POWER HAD BEEN DELEGATED.  THE FRUITS OF PETITIONER'S
LABORS WERE FRUSTRATED, HOWEVER, BY THE INTERMEDDLING OF ANOTHER AGENCY
WITHOUT POWER TO ACT AND, WHEN PETITIONER SOUGHT ENFORCEMENT OF ITS
RIGHTS IN COURT, STILL ANOTHER AGENCY OF THE GOVERNMENT ENTERED AND
SOUGHT TO DISAVOW THE DECISION MADE HERE BY THE AEC. 

IF THE GENERAL ACCOUNTING OFFICE OR THE DEPARTMENT OF JUSTICE IS TO
BE AN OMBUDSMAN REVIEWING EACH HAND EVERY DECISION RENDERED BY THE
COORDINATE BRANCHES OF THE GOVERNMENT, THAT MANDATE SHOULD COME FROM
CONGRESS, NOT FROM THIS COURT. 

THE JUDGMENT OF THE COURT OF CLAIMS IS

              REVERSED. 

MR. JUSTICE REHNQUIST TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  THE WUNDERLICH ACT, 68 STAT. 81, PROVIDES: 

"NO PROVISION OF ANY CONTRACT ENTERED INTO BY THE UNITED STATES,
RELATING TO THE FINALITY OR CONCLUSIVENESS OF ANY DECISION OF THE HEAD
OF ANY DEPARTMENT OR AGENCY OR HIS DULY AUTHORIZED REPRESENTATIVE OR
BOARD IN A DISPUTE INVOLVING A QUESTION ARISING UNDER SUCH CONTRACT,
SHALL BE PLEADED IN ANY SUIT NOW FILED OR TO BE FILED AS LIMITING
JUDICIAL REVIEW OF ANY SUCH DECISION TO CASES WHERE FRAUD BY SUCH
OFFICIAL OR HIS SAID REPRESENTATIVE OR BOARD IS ALLEGED:  PROVIDED,
HOWEVER, THAT ANY SUCH DECISION SHALL BE FINAL AND CONCLUSIVE UNLESS
THE SAME IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY
ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE."  41 U.S.C. 321. 

"NO GOVERNMENT CONTRACT SHALL CONTAIN A PROVISION MAKING FINAL ON A
QUESTION OF LAW THE DECISION OF ANY ADMINISTRATIVE OFFICIAL,
REPRESENTATIVE, OR BOARD."  41 U.S.C. 322. 

/2/  THE CONTRACT PROVIDED: 

"6.  DISPUTES 

"(A) EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, ANY DISPUTE
CONCERNING A QUESTION OF FACT ARISING UNDER THIS CONTRACT WHICH IS NOT
DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER,
WHO SHALL REDUCE HIS DECISION TO WRITING AND MAIL OR OTHERWISE FURNISH
A COPY THEREOF TO THE CONTRACTOR.  THE DECISION OF THE CONTRACTING
OFFICER SHALL BE FINAL AND CONCLUSIVE UNLESS, WITHIN 30 DAYS FROM THE
DATE OF RECEIPT OF SUCH COPY, THE CONTRACTOR MAILS OR OTHERWISE
FURNISHES TO THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE
COMMISSION.  THE DECISION OF THE COMMISSION OR ITS DULY AUTHORIZED
REPRESENTATIVE FOR THE DETERMINATION OF SUCH APPEALS SHALL BE FINAL AND
CONCLUSIVE UNLESS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO
HAVE BEEN FRAUDULENT, OR CAPRICIOUS, OR ARBITRARY, OR SO GROSSLY
ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE.  IN CONNECTION WITH ANY APPEAL PROCEEDING UNDER
THIS CLAUSE, THE CONTRACTOR SHALL BE AFFORDED AN OPPORTUNITY TO BE
HEARD AND TO OFFER EVIDENCE IN SUPPORT OF ITS APPEAL.  PENDING FINAL
DECISION OF A DISPUTE HEREUNDER, THE CONTRACTOR SHALL PROCEED
DILIGENTLY WITH THE PERFORMANCE OF THE CONTRACT AND IN ACCORDANCE WITH
THE CONTRACTING OFFICER'S DECISION.     "(B) THIS 'DISPUTES' CLAUSE
DOES NOT PRECLUDE CONSIDERATION OF LAW QUESTIONS IN CONNECTION WITH
DECISIONS PROVIDED FOR IN PARAGRAPH (A) ABOVE; PROVIDED THAT NOTHING IN
THIS CONTRACT SHALL BE CONSTRUED AS MAKING FINAL THE DECISION OF ANY
ADMINISTRATIVE OFFICIAL, REPRESENTATIVE, OR BOARD ON A QUESTION OF
LAW." 

/3/  THE ATOMIC ENERGY COMMISSION BOARD OF CONTRACT APPEALS WAS NOT
ESTABLISHED UNTIL 1964.  SEE 10 CFR 3.1 ET SEQ. (JAN. 1, 1971). 

/4/  VOLUME 55 STAT. 876, 31 U.S.C. 32D PROVIDES: 

"THE LIABILITY OF CERTIFYING OFFICERS OR EMPLOYEES SHALL BE ENFORCED
IN THE SAME MANNER AND TO THE SAME EXTENT AS NOW PROVIDED BY LAW WITH
RESPECT TO ENFORCEMENT OF THE LIABILITY OF DISBURSING AND OTHER
ACCOUNTABLE OFFICERS; AND THEY SHALL HAVE THE RIGHT TO APPLY FOR AND
OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW
INVOLVED IN A PAYMENT ON ANY VOUCHERS PRESENTED TO THEM FOR
CERTIFICATION." 

/5/  THE AMERICAN BAR ASSOCIATION, AS AMICUS CURIAE, NOTES "THAT THE
CONTRACTOR'S CONSENT TO PERMIT A SPECIFIC REPRESENTATIVE OF THE
GOVERNMENT TO DECIDE DISPUTES-- THE COMMISSION-- SHOULD NOT BE READ AS
PERMITTING ANY DIFFERENT REPRESENTATIVE OF THE GOVERNMENT TO 'VETO'
DECISIONS RENDERED BY THE COMMISSION WHICH ARE IN FAVOR OF THE
CONTRACTOR." 

/6/  WHILE THE QUOTED LANGUAGE FROM PARAGRAPH 6(A) OF THE CONTRACT
CONCERNS FACTUAL DISPUTES AND WHILE QUESTIONS OF LAW ARE DEALT WITH IN
PARAGRAPH 6(B) (SEE N. 2, SUPRA), THERE IS NO REASON TO BELIEVE THAT
THE TWO CLAUSES SHOULD NOT BE CONSIDERED IN PARI MATERIA OR THAT A
DIFFERENT AVENUE FOR REVIEW SHOULD APPLY TO LEGAL QUESTIONS THAN TO
THOSE OF FACT.  INDEED, PARAGRAPH 6(B) SPEAKS OF "CONSIDERATION OF LAW
QUESTIONS IN CONNECTION WITH DECISIONS PROVIDED FOR IN PARAGRAPH (A)." 
THE DIFFERENCE BETWEEN THE TWO CLAUSES RELATES ONLY TO THE STANDARD OF
REVIEWABILITY AND DOES NOT ESTABLISH SEPARATE AVENUES OF REVIEW. 

/7/  SEE N. 2, SUPRA. 

/8/  FOR CERTAIN TYPES OF FRAUD AGAINST THE GOVERNMENT, CONGRESS HAS
VESTED THE GENERAL ACCOUNTING OFFICE WITH INVESTIGATIVE POWERS.  IN THE
CASE OF KICKBACKS BY GOVERNMENT CONTRACTORS, FOR EXAMPLE, "THE GENERAL
ACCOUNTING OFFICE SHALL HAVE THE POWER TO INSPECT THE PLANTS AND TO
AUDIT THE BOOKS AND RECORDS OF ANY PRIME CONTRACTOR OR SUBCONTRACTOR
ENGAGED IN THE PERFORMANCE OF A NEGOTIATED CONTRACT," 74 STAT. 741, 41
U.S.C. 53, AND CRIMINAL PENALTIES ARE PROVIDED IF A VIOLATION IS
ESTABLISHED.  41 U.S.C. 54. 

IF THE COMPTROLLER GENERAL HAS THE BROAD, ROVING, INVESTIGATORY
POWERS THAT ARE ASSERTED, SPECIFIC STATUTORY GRANTS OF AUTHORITY SUCH
AS THIS PROVISION RELATING TO KICKBACKS WOULD BE SUPERFLUOUS. 

/9/  IT HAS BEEN SAID THAT THE ACT'S LEGISLATIVE HISTORY "HAS
SOMETHING FOR EVERYONE."  KIPPS, THE RIGHT OF THE GOVERNMENT TO HAVE
JUDICIAL REVIEW OF A BOARD OF CONTRACT APPEALS DECISION MADE UNDER THE
DISPUTES CLAUSE, 2 PUB.CONTRACT L.J. 286, 295 (1969).  SUFFICE IT TO
SAY WE FIND THE ACT'S HISTORY AT BEST AMBIGUOUS.  IN CONSTRUING LAWS WE
HAVE BEEN EXTREMELY WARY OF TESTIMONY BEFORE COMMITTEE HEARINGS AND OF
DEBATES ON THE FLOOR OF CONGRESS SAVE FOR PRECISE ANALYSES OF STATUTORY
PHRASES BY THE SPONSORS OF THE PROPOSED LAWS.  SEE GENERALLY NLRB V.
FRUIT PACKERS, 377 U.S. 58, 66 (1964); MASTRO PLASTICS CORP. V. NLRB,
350 U.S. 270, 288 (1956); SCHWEGMANN BROS. V. CALVERT CORP., 341 U.S.
384, 394-395 (1951); UNITED STATES V. ST. PAUL, M&M.R. CO., 247 U.S.
310, 318 (1918); OMAHA & COUNCIL BLUFFS STREET R. CO. V. ICC, 230 U.S.
324, 333 (1913); UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166
U.S. 290, 318 (1897). 

THE REASON IS THE CAVEAT OF MR. JUSTICE HOLMES, "WE DO NOT INQUIRE
WHAT THE LEGISLATURE MEAN; WE ASK ONLY WHAT THE STATUTE MEANS."  THE
THEORY OF LEGAL INTERPRETATION, 12 HARV.L.REV.  417, 419. 

/10/  THE HOUSE REPORT STATED, "A CONTINUATION OF THIS SITUATION
(CREATED BY THE WUNDERLICH DECISION) WILL RENDER THE PERFORMANCE OF
GOVERNMENT WORK LESS ATTRACTIVE TO THE RESPONSIBLE INDUSTRIES UPON WHOM
THE GOVERNMENT MUST RELY FOR THE PERFORMANCE OF SUCH WORK, AND WILL
ADVERSELY AFFECT THE FREE AND COMPETITIVE NATURE OF SUCH WORK.  IT WILL
DISCOURAGE THE MORE RESPONSIBLE ELEMENT OF EVERY INDUSTRY FROM ENGAGING
IN GOVERNMENT WORK AND WILL ATTRACT MORE SPECULATIVE ELEMENTS WHOSE
BIDS WILL CONTAIN CONTINGENT ALLOWANCES INTENDED TO PROTECT THEM FROM
UNCONSCIONABLE DECISIONS OF GOVERNMENT OFFICIALS RENDERED DURING THE
PERFORMANCE OF THEIR CONTRACTS."  H.R. REP. NO. 1380, 83D CONG., 2D
SESS., 4. 

IN A SIMILAR VEIN, THE SENATE REPORT ON THE SENATE VERSION OF THE
WUNDERLICH ACT STATED, "THE IMPACT OF THIS DECISION ON THE MANY
BUSINESS FIRMS WHO, IN A CONDITION OF EXPANDING PRODUCTION WITH RESPECT
TO THE DEFENSE OF THE UNITED STATES, MUST DEAL WITH MANY OF THE
GOVERNMENT DEPARTURES IN GOVERNMENT CONSTRUCTION AND DEFENSE MATERIALS,
WAS ONE THAT COULD ONLY CAUSE GREAT EXPENSE TO THE UNITED STATES IN
THAT THE CONTRACTORS WOULD BE FORCED TO PUFF UP THEIR BIDS SO AS TO BE
SURE OF SUFFICIENT FUNDS TO PROVIDE FOR UNFORESEEN CONTINGENCIES."  S.
REP. NO. 32, 83D CONG., 1ST SESS., 2. 

/11/  WHERE THE DEPARTMENT OF JUSTICE HAS SUCCESSIVELY ASSERTED THIS
DEFENSE OF FRAUD, THE COURT OF CLAIMS HAS DISALLOWED CONTRACTORS'
CLAIMS.  SEE, E.G., KAMEN SOAP PRODUCTS CO. V. UNITED STATES, 129
CT.CL. 619, 124 F.SUPP.  608 (1954) (FRAUDULENT PREPARATION OF
EVIDENCE); MORRIS DEMOLITION CORP. V. UNITED STATES, 99 CT.CL. 336
(1943); JERMAN V. UNITED STATES, 96 CT.CL. 540 (1942) (FRAUDULENT
INVOICES); MERVIN CONTRACTING CORP. V. UNITED STATES, 94 CT.CL. 81
(1941) (FALSE PAYROLL VOUCHERS); ATLANTIC CONTRACTING CO. V. UNITED
STATES, 57 CT.CL. 185 (1922) (EMBEZZLEMENT). 

/12/  SEE N. 3, SUPRA.  AND SEE 29 FED.REG.  12829 ET SEQ. 

/13/  FOR OTHER ASPECTS OF EXHAUSTION OF ADMINISTRATIVE REVIEW OF
DECISIONS FROM BOARDS OF CONTRACT APPEALS, SEE UNITED STATES V.
MOORMAN, 338 U.S. 457; UNITED STATES V. GRACE & SONS, 384 U.S. 424;
UNITED STATES V. UTAH CONSTRUCTION CO., 384 U.S. 394. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
STEWART, AND MR. JUSTICE POWELL JOIN, CONCURRING. 

BECAUSE I AGREE THAT IN THIS CASE, WHERE NEITHER FRAUD NOR BAD FAITH
IS CHARGED, THE WUNDERLICH ACT, 41 U.S.C. 321-322, DOES NOT OPERATE TO
GIVE THE UNITED STATES THE POWER TO CHALLENGE A CONTRACT DISPUTES
CLAUSE FINDING OF FACT IN FAVOR OF THE CONTRACTOR BY THE GOVERNMENT'S
OWN CONTRACTING AGENCY, I JOIN THE COURT'S OPINION AND ITS JUDGMENT.  I
VENTURE SOME SUPPORTIVE COMMENTS: 

1.  THE CONTRACTING OFFICER AND THE ATOMIC ENERGY COMMISSION ACTED
HERE IN AN EXECUTIVE CAPACITY FOR THE UNITED STATES.  SEE SMALL
BUSINESS ADMINISTRATION V. MCCLELLAN, 364 U.S. 446, 448 450 (1960). 
THE COMMISSION IS THE PARTY TO THE CONTRACT WITH THE CONTRACTOR.  ITS
EXERCISE OF EXECUTIVE JUDGMENT IS NECESSARILY THAT OF THE UNITED
STATES.  YET THE GOVERNMENT, BY ITS POSITION HERE, WOULD GRANT ITSELF
THE RIGHT TO CHALLENGE ITS OWN EXECUTIVE DETERMINATION WHENEVER THE
GENERAL ACCOUNTING OFFICE, BY INTERPOSITION, THINKS THIS SHOULD BE
DONE.  THIS, FOR ME, DOES NOT MAKE GOOD SENSE, AND, IN THE ABSENCE OF
CLEAR CONGRESSIONAL AUTHORIZATION, I DOUBT THAT IT WOULD MAKE GOOD
LAW. 

2.  THE DISPUTES CLAUSE IN GOVERNMENT CONTRACTS HAS BEEN EMPLOYED
FOR OVER FOUR DECADES.  THE CLAUSE IS ONE DRAWN AND PRESCRIBED BY THE
UNITED STATES.  IT IS NOT ONE DRAWN BY THE CONTRACTOR OR BY ANY GROUP
OF CONTRACTORS WITH WHOM THE UNITED STATES DEALS.  AND FOR YEARS, WITH
THE SPECIFIED EXCEPTIONS, THAT CLAUSE ITSELF HAS BEEN REGARDED AS
CONFERRING NO RIGHT OF JUDICIAL REVIEW ON THE PART OF THE GOVERNMENT. 

3.  BY ACCEPTING THE DISPUTES CLAUSE IN HIS CONTRACT, THE CONTRACTOR
BEARS THE INTERIM FINANCIAL BURDEN AND GIVES UP THE RIGHT OF RESCISSION
AND THE RIGHT TO SUE FOR DAMAGES.  WHAT HE RECEIVES IN RETURN IS THE
GOVERNMENT'S ASSURANCES OF SPEEDY SETTLEMENT AND OF PROMPT PAYMENT, NOT
PAYMENT DELAYED FOR MONTHS OR, AS HERE, FOR YEARS. 

4.  TO COMPEL A CONTRACTOR TO GO THROUGH THE ADMINISTRATIVE PROCESS
AND TO PROCEED AND TO PERFORM WITH LESS THAN HIS USUAL ARSENAL OF
DEFENSES AGAINST ADMINISTRATIVE ARBITRARINESS OR UNFAIRNESS, AND THEN
TO HAVE THAT DETERMINATION SUBMITTED TO JUDICIAL REVIEW AT THE BEHEST
OF STILL ANOTHER AGENCY OF GOVERNMENT, SUBJECTS THE CONTRACTOR TO
UNTOWARD DELAY IN PAYMENT AND TO A FINANCIAL HAZARD THAT MAY WELL PROVE
TO BE RUINOUS. 

5.  THE RESULT WOULD BE A STRANGE ONE IF, AS EVEN THE GAO HERE
CONCEDES, A CONTRACTING OFFICER'S DECISION FAVORABLE TO A CONTRACTOR
POSSESSES FINALITY, UNITED STATES V. CORLISS STEAM-ENGINE CO., 91 U.S.
321 (1876); UNITED STATES V. MASON & HANGER CO., 260 U.S. 323 (1922),
WHILE A DECISION AT THE HIGHER LEVEL OF THE AGENCY ITSELF DOES NOT. 
WHEN THE OFFICER AND THE CONTRACTOR AGREE TO THE DISPOSITION OF A
DISPUTE, THERE IS NO OCCASION FOR THE ISSUANCE OF A DECISION BY THE
CONTRACTING OFFICER, AND THE WUNDERLICH ACT, BY ITS TERMS, DOES NOT
APPLY.  AND IF THE CONTRACTOR ACCEPTS A DECISION OF THE CONTRACTING
OFFICER, AND DOES NOT APPEAL TO THE COMMISSION, THAT DECISION, BY THE
SPECIFIC PROVISIONS OF THE DISPUTES CLAUSE, IS FINAL AND CONCLUSIVE AS
TO QUESTIONS OF FACT.  UNDER THE GOVERNMENT'S POSITION, HOWEVER, THE
DECISION AT THE AGENCY HEAD WOULD ENJOY NO SUCH PREFERRED AND
CONCLUSIVE STATUS.  /1/ 

6.  LURKING IN THE BACKGROUND OF THE COURT'S DECISION IS ADVANTAGE
TO THE GOVERNMENT RESULTING FROM WHAT STRIKES ME AS A POSSIBLE BREACH
OF CONTRACT.  THE CONTRACTOR HERE, ACCORDING TO THE LONG-TERM
UNDERSTANDING OF THE DISPUTES CLAUSE, CONSENTED TO THE DISPOSITION OF
DISPUTES BY THE CONTRACTING OFFICER AND BY THE AEC ON APPEAL, AND TO
THE FINALITY OF DECISION AT THOSE POINTS.  IT DID NOT CONSENT TO ITS
REVIEW OR TO THE EXERCISE OF VETO POWER BY ANY OTHER AGENCY OF
GOVERNMENT.  WHEN THE UNITED STATES THEN DISAVOWS THE COMMISSION'S
DECISION-- A DECISION THAT, AS THE COURT NOTES, TO THIS DAY HAS NEVER
BEEN WITHDRAWN OR REPUDIATED BY THE AEC-- IT SEEMS TO ME THAT THE
GOVERNMENT IMPOSES SOMETHING TO WHICH THE CONTRACTOR HAS NOT AGREED. 

7.  THE LEGISLATIVE HISTORY, WHICH THE DISSENT FINDS SO CLEARLY
SUPPORTIVE OF ITS CONCLUSION, IS NOT AT ALL THAT CLEAR FOR ME.  I DOUBT
IF ANYONE WHO READS AND ABSORBS THE APPENDIX TO THE DISSENT'S OPINION
WILL FIND IT CLEAR AND INDICATIVE.  I REGARD IT, AS DOES THE COURT AND
AS DID THE DISSENTERS IN THE COURT OF CLAIMS, AS DECIDEDLY AMBIGUOUS AT
BEST.  EVEN THE COURT OF CLAIMS MAJORITY STRUGGLED WITH THE HISTORY AND
CONCEDED THAT IT DID NOT "EXPLICITLY" PROVIDE FOR GOVERNMENT-INSTITUTED
JUDICIAL REVIEW.  193 CT.CL. 335, 342, 433 F.2D 1373, 1376.  THIS IS
NOT SURPRISING, FOR THE WUNDERLICH ACT WAS INTENDED TO RELIEVE
CONTRACTORS FROM THE HOLDING IN UNITED STATES V. WUNDERLICH, 342 U.S.
98 (1951), WHERE THE COURT RESTRICTED CONTRACTOR-INSTIGATED JUDICIAL
REVIEW TO THE SITUATION OF ALLEGED AND PROVED FRAUD.  IN WUNDERLICH THE
GOVERNMENT SOUGHT TO REINSTATE AN INTERIOR SECRETARY'S FACT DECISION,
FAVORABLE TO THE GOVERNMENT AND ADVERSE TO THE CONTRACTOR, WHICH THE
COURT OF CLAIMS HAD SET ASIDE AS "ARBITRARY,"  "CAPRICIOUS," AND
"GROSSLY ERRONEOUS."  THE GOVERNMENT THERE URGED-- AND PREVAILED OVER
THREE DISSENTING VOTES-- A NARROW JUDICIAL REVIEW STANDARD FOR THE
CONTRACTOR.  CONGRESS REACTED, AND THE WUNDERLICH ACT OVERRODE THIS
RESTRICTIVE MEASURE OF REVIEW AND OPENED THE DOOR TO THE CONTRACTOR TO
THE EXTENT PERMITTED BY THE PROVISO CLAUSE OF SEC. 321. 

I AM NOT ABLE TO READ INTO THIS LEGISLATIVE CHANGE A CORRESPONDING
NOD IN THE DIRECTION OF THE GOVERNMENT.  THE FLAT REJECTION BY CONGRESS
OF THE PROPOSED PROVISION FOR GAO REVIEW IS SIGNIFICANT.  THERE WOULD
BE NO POINT IN THAT REJECTION IF GAO HAS THE POWER TO DEFEAT THE
FINALITY OF THE DISPUTES DECISION ANYWAY.  AND THE DIFFERING APPROACHES
TAKEN ON THIS APPEAL BY THE DEPARTMENT OF JUSTICE AND THE GAO
THEMSELVES INDICATE THE INCONCLUSIVENESS OF THE LEGISLATIVE HISTORY. 

8.  THE ISSUE IS NOT WHETHER ADVANTAGE IS OR IS NOT TO BE TAKEN OF
THE GOVERNMENT.  OF COURSE, THE GOVERNMENT'S RIGHTS ARE TO BE
PROTECTED.  THAT PROTECTION, HOWEVER, IS AFFORDED BY THE NATURE AND
WORKINGS OF THE CONTRACT DISPUTES SYSTEM, BY ITS EMPHASIS ON
EXPEDITIOUS PERFORMANCE AND GETTING THE JOB DONE, AND BY THE PRESENCE
OF THE CONTRACTING OFFICER AND THE AGENCY, BUT NOT OF THE GAO.  THIS
RESULTS IN FULFILLMENT OF THE CONTRACT AND, AT THE SAME TIME, GIVES THE
CONTRACTOR THE PROTECTION HE NEEDS AGAINST FRAUD, CAPRICIOUSNESS,
ARBITRARINESS, BAD FAITH, AND ABSENCE OF EVIDENCE.  IN THE EXERCISE OF
ITS LEGISLATIVE JUDGMENT, CONGRESS HAS DETERMINED THAT IN THIS AREA THE
GOVERNMENT NEEDS NO MORE. 

I THEREFORE JOIN IN REVERSING THE JUDGMENT OF THE COURT OF CLAIMS
AND IN GIVING THIS CONTRACTOR THE BENEFIT OF THE DECISION MADE BY THE
ATOMIC ENERGY COMMISSION ITSELF, THE VERY AGENCY THAT WAS THE
CONTRACTOR'S OPPOSITE PARTY TO THE CONTRACT. 

/1/  JUDGE COLLINS, DISSENTING IN THE COURT OF CLAIMS, SAYS IT
WELL: 

"WHEN A DISPUTE ARISES BETWEEN A CONTRACTOR AND THE GOVERNMENT, THE
'DISPUTES' CLAUSE SETS OUT CLEARLY THE PROCEDURE TO BE FOLLOWED. 
FIRST, THE PARTIES MAY VOLUNTARILY SETTLE THE DISPUTE.  IF THEY DO,
THAT IS THE END OF THE MATTER.  IF NO SETTLEMENT IS REACHED, THE
DISPUTED MATTERS ARE DECIDED BY THE AGENCY'S CONTRACTING OFFICER.  IF
THE CONTRACTOR DOES NOT APPEAL TO THE AGENCY FROM THE CONTRACTING
OFFICER'S DECISION WITHIN THE PRESCRIBED TIME, THAT, AGAIN, IS THE END
OF THE MATTER.  IF, HOWEVER, THE CONTRACTOR DOES APPEAL TO THE AGENCY,
THEN, ACCORDING TO THE COURT, A DECISION RENDERED BY THE AGENCY OR ITS
BOARD FAVORABLE TO THE CONTRACTOR IS NOT THE END OF THE MATTER; THE
AGENCY IS FREE AT ANY TIME TO DISAVOW OR REPUDIATE ITS OWN DECISION,
THEREBY FORCING THE CONTRACTOR TO SUE.  THE ANOMALY CREATED BY THE
COURT'S DECISION IS TOO OBVIOUS TO NEED ELABORATION.  WHILE AN AGENCY
WILL STILL BE BOUND BY THE DECISIONS OF ITS CONTRACTING OFFICERS, IT
WILL NOT BE BOUND BY DECISIONS MADE AT THE HIGHEST LEVEL."  193 CT.CL.
335, 379-380, 433 F.2D 1373, 1397-1398.     MR. JUSTICE BRENNAN, WITH
WHOM MR. JUSTICE WHITE AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

THIS IS A SUIT BY PETITIONER AGAINST UNITED STATES TO RECOVER ON A
CONTRACT BETWEEN PETITIONER AND THE ATOMIC ENERGY COMMISSION.  THE
CONTRACT INCLUDED A "DISPUTES CLAUSE," WHICH PROVIDED THAT THE
COMMISSION WOULD DECIDE ANY FACTUAL DISPUTES THAT AROSE UNDER THE
CONTRACT AND THAT ITS DECISION WOULD "BE FINAL AND CONCLUSIVE UNLESS
DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN
FRAUDULENT, OR CAPRICIOUS, OR ARBITRARY, OR SO GROSSLY ERRONEOUS AS
NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE."  THE DISPUTES CLAUSE ALSO PROVIDED THAT WHILE IT DID "NOT
PRECLUDE CONSIDERATION OF LAW QUESTIONS IN CONNECTION WITH (DISPUTES)
DECISIONS," IT WAS NOT TO "BE CONSTRUED AS MAKING THE FINAL THE
(COMMISSION'S) DECISION . . . ON A QUESTION OF LAW."  DISPUTES AROSE
DURING PERFORMANCE OF THE CONTRACT, AND THE COMMISSION DECIDED THEM IN
PETITIONER'S FAVOR.  THE GENERAL ACCOUNTING OFFICE, HOWEVER, WHEN
RENDERING AN ADVISORY OPINION REQUESTED ON BEHALF OF THE COMMISSION AS
TO ONE OF THE DISPUTED ITEMS, DISAGREED WITH THE COMMISSION'S DECISION,
AND FOR THAT REASON THE COMMISSION REFUSED TO PAY.  IN PETITIONER'S
SUBSEQUENT SUIT IN THE COURT OF CLAIMS, PETITIONER RELIED UPON THE
COMMISSION'S DECISION AS A "FINAL AND CONCLUSIVE" RESOLUTION OF THE
DISPUTES, ENTITLING PETITIONER TO SUMMARY JUDGMENT.  THE DEPARTMENT OF
JUSTICE DEFENDED THE SUIT ON THE GROUNDS THAT THE COMMISSION'S DECISION
WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS ERRONEOUS ON
QUESTIONS OF LAW.  THE ISSUE BEFORE US IS WHETHER THE GOVERNMENT,
THROUGH THE DEPARTMENT OF JUSTICE, MAY ASSERT THOSE DEFENSES. 

IT MAY BE HELPFUL AT THE OUTSET TO PUT THIS CASE IN PERSPECTIVE BY
REVIEWING BRIEFLY THE LAW DEVELOPED OVER THE PAST CENTURY TO REGULATE
THE ENFORCEMENT OF DISPUTES CLAUSES IN GOVERNMENT PROCUREMENT
CONTRACTS.  UNTIL 1954, WITH THE PASSAGE OF THE WUNDERLICH ACT,
DISPUTES CLAUSES PROVIDED THAT THE DECISION OF A DESIGNATED GOVERNMENT
OFFICIAL UPON A MATTER IN DISPUTE UNDER THE CONTRACT WOULD BE FINAL AND
BINDING UPON BOTH PARTIES.  ALTHOUGH IN TERMS THE DISPUTES CLAUSES,
PRECLUDED JUDICIAL REVIEW OF DISPUTES DECISIONS, THIS COURT BEGINNING
IN 1878 CONSISTENTLY HELD THAT THE FINALITY OF A DISPUTES DECISION
COULD BE CHALLENGED IN COURT BY EITHER PARTY ON THE GROUND OF FRAUD OR
BAD FAITH BY THE DECIDING GOVERNMENTAL OFFICIAL.  THUS THE "FRAUD"
EXCEPTION TO THE FINALITY OF DISPUTES DECISIONS WAS NOT WRITTEN INTO
DISPUTES CLAUSES BUT WAS JUDICIALLY FASHIONED. 

UNDER THIS SYSTEM, THEN, A CONTRACTOR DISSATISFIED WITH AN ADVERSE
DISPUTES DECISION COULD CONTEST THE FINALITY OF THAT DECISION ONLY BY
PROVING IN COURT THAT IT WAS FRAUDULENT.  THE GOVERNMENT, OF COURSE,
BORE AN IDENTICAL BURDEN WHEN IT CONTESTED THE FINALITY OF A DISPUTES
DECISION IN FAVOR OF THE CONTRACTOR.  THAT SITUATION AROSE WHEN GAO,
CONGRESSIONAL WATCHDOG OF GOVERNMENT EXPENDITURES, REFUSED TO SANCTION
PAYMENT TO A CONTRACTOR OF THE AMOUNT FOUND DUE UNDER A DISPUTES
DECISION IN HIS FAVOR AND THEREBY FORCED HIM TO BRING SUIT.  GAO'S VIEW
OF THE DISPUTES DECISION, HOWEVER, WAS OF NO CONSEQUENCE IN COURT;
INDEED, WHETHER OR NOT THE GOVERNMENT DEFENDED THE CONTRACTOR'S SUIT
WAS A MATTER SOLELY FOR THE JUDGMENT OF THE GOVERNMENT'S LAWYER, THE
DEPARTMENT OF JUSTICE.  ONCE IN COURT, THE CONTRACTOR RELIED UPON THE
FINALITY OF THE DISPUTES DECISION AND RECOVERED ON THAT BASIS UNLESS
THE GOVERNMENT PROVED THAT THE DECISION WAS FRAUDULENT. 

OVER THE YEARS, THE COURT OF CLAIMS GRADUALLY BROADENED THE FRAUD
EXCEPTION TO THE FINALITY OF DISPUTES DECISIONS.  IN 1951, HOWEVER,
THIS COURT STOPPED THE TREND BY HOLDING THAT A DISPUTES DECISION,
RENDERED PURSUANT TO A DISPUTES CLAUSE PURPORTING TO MAKE THAT DECISION
FINAL, WAS CONCLUSIVE UPON BOTH PARTIES UNLESS THE CHALLENGER PROVED IN
COURT THAT THE DECIDING GOVERNMENT OFFICIAL WAS GUILTY OF "CONSCIOUS
WRONGDOING AN INTENTION TO CHEAT OR BE DISHONEST."  UNITED STATES V.
WUNDERLICH, 342 U.S. 98, 100 (1951).  WUNDERLICH'S NARROW DEFINITION OF
THE FRAUD EXCEPTION ALARMED THE GOVERNMENT AS WELL AS CONTRACTORS, FOR,
IN PRACTICAL EFFECT, IT MEANT THAT DISPUTES DECISIONS WERE VIRTUALLY
INVULNERABLE TO CHALLENGE. 

THE RESULT OF THIS CONCERN WAS THE SO-CALLED WUNDERLICH ACT, DRAFTED
BY GAO AND SUPPORTED BY GAO, GOVERNMENT PROCUREMENT AGENCIES, AND
CONTRACTORS.  THE ACT OVERRULED WUNDERLICH BY DIRECTING THAT NO
DISPUTES CLAUSE, PURPORTING TO MAKE DISPUTES DECISIONS FINAL, "SHALL BE
PLEADED IN ANY SUIT . . . AS LIMITING JUDICIAL REVIEW OF ANY (DISPUTES)
DECISION TO CASES WHERE FRAUD BY (THE GOVERNMENT) OFFICIAL . . . IS
ALLEGED."  THE ACT DID MORE THAN SIMPLY OVERRULE WUNDERLICH, HOWEVER,
FOR IT ALSO EXPLICITLY STATED THE GROUNDS UPON WHICH COURTS COULD SET
ASIDE DISPUTES DECISIONS:  "ANY (DISPUTES) DECISION SHALL BE FINAL AND
CONCLUSIVE UNLESS THE SAME IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR
SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE."  FINALLY, THE ACT PROVIDED THAT
"(NO GOVERNMENT CONTRACT SHALL CONTAIN A PROVISION MAKING FINAL ON A
QUESTION OF LAW THE DECISION OF ANY (GOVERNMENT) OFFICIAL . . . . " 

THE WUNDERLICH ACT, THEN, RENDERED THE OLD FORMS OF DISPUTES CLAUSES
UNSERVICABLE, FOR NO LONGER COULD THE PARTIES BIND THEMSELVES TO THE
FINALITY OF A DISPUTES DECISION, JUDICIALLY REVIEWABLE ONLY IF THE
CHALLENGER PROVED THAT IT WAS FRAUDULENT.  CONSEQUENTLY, THE DISPUTES
CLAUSE IN THE CONTRACT BEFORE US DID NOT EVEN ATTEMPT TO PROVIDE FOR
THE FINALITY OF THE COMMISSION'S DISPUTES DECISIONS, BUT INSTEAD
EXPRESSLY TRACKED THE LANGUAGE OF THE ACT.  UNDER THIS DISPUTES CLAUSE
AND THE ACT, THE PARTY DISSATISFIED WITH A DISPUTES DECISION IS NO
LONGER LIMITED TO CHALLENGING THE FINALITY OF THAT DECISION ONLY ON THE
GROUND THAT IT WAS "FRAUDULENT," FOR THE DISSATISFIED PARTY IS NOW
ENTITLED ALSO TO PROVE IN COURT THAT THE DECISION WAS "CAPRICIOUS,"
"ARBITRARY," "SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH,"
"NOT SUPPORTED BY SUBSTANTIAL EVIDENCE," OR INCORRECT "ON A QUESTION OF
LAW."  IN THIS CASE, THE GOVERNMENT RELIED UPON THE LAST TWO GROUNDS TO
CHALLENGE THE FINALITY OF THE COMMISSION'S DISPUTES DECISION IN FAVOR
OF PETITIONER.  /1/ 

AS NOTED ABOVE, UNDER PRE-WUNDERLICH ACT DISPUTES CLAUSES, WHICH
PURPORTED TO MAKE DISPUTES DECISIONS FINAL, THE GOVERNMENT, LIKE THE
CONTRACTOR, COULD AVAIL ITSELF OF THE JUDICIALLY CREATED FRAUD
EXCEPTION TO THE FINALITY OF DISPUTES DECISIONS.  THE GOVERNMENT
OBTAINED JUDICIAL REVIEW WHEN GAO REFUSED TO SANCTION PAYMENT AFTER A
DISPUTES DECISION IN FAVOR OF THE CONTRACTOR, THUS FORCING HIM TO BRING
A SUIT IN WHICH THE DEPARTMENT OF JUSTICE REPRESENTED THE GOVERNMENT. 
THAT WAS PRECISELY THE PATH FOLLOWED IN THIS CASE, FOR GAO, IN RESPONSE
TO A REQUEST FOR AN ADVISORY OPINION, INFORMED THE COMMISSION THAT
PAYMENT WOULD BE IMPROPER BECAUSE THE DISPUTES DECISION DID NOT MEET
THE STANDARDS OF THE WUNDERLICH ACT, AND, IN PETITIONER'S SUBSEQUENT
SUIT, THE DEPARTMENT OF JUSTICE REPRESENTED THE GOVERNMENT.  HAD THIS
CASE ARISEN UNDER EARLIER FORMS OF DISPUTES CLAUSES, WHICH PURPORTED TO
MAKE DISPUTES DECISIONS FINAL, AND BEFORE THE WUNDERLICH ACT, THE
GOVERNMENT COULD HAVE DEFENDED THE SUIT ONLY ON THE JUDICIALLY CREATED
GROUND THAT THE DISPUTES DECISION WAS FRAUDULENT.  UNDER THE CURRENT
CLAUSE AND THE ACT, HOWEVER, THE GOVERNMENT IS NOT LIMITED TO THAT
NARROW GROUND.  LIKE THE CONTRACTOR, THE GOVERNMENT MAY NOW ALSO RELY
UPON ANY OR ALL OF THE OTHER GROUNDS ENUMERATED IN THE CLAUSE AND THE
ACT.  THE COMMISSION'S DISPUTES DECISION IS NOT "FINAL AND CONCLUSIVE,"
UNDER THE CLAUSE AND THE ACT, IF THE COURT OF CLAIMS DETERMINES, AS THE
GOVERNMENT ASSERTED HERE, THAT THE DECISION WAS "NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE" OR WAS INCORRECT "ON A QUESTION OF LAW."  /2/ 

YET THE COURT TODAY HOLDS THAT THE GOVERNMENT HAS NO RIGHT TO DEFEND
PETITIONER'S SUIT.  HAD THE COMMISSION'S DISPUTES DECISION BEEN ADVERSE
TO PETITIONER, OF COURSE, PETITIONER WOULD HAVE BEEN FREE TO CHALLENGE
ITS FINALITY IN COURT, UNDER THE DISPUTES CLAUSE AND THE ACT, ON THE
GROUNDS THAT IT WAS "NOT SUPPORTED BY SUBSTANTIAL EVIDENCE" AND WAS
INCORRECT "ON A QUESTION OF LAW."  THE COURT HOLDS, HOWEVER, THAT THE
GOVERNMENT MAY NOT CHALLENGE THE FINALITY OF THE DISPUTES DECISION IN
FAVOR OF PETITIONER BECAUSE THE GOVERNMENT, UNDER THE DISPUTES CLAUSE
AND THE ACT, HAS NO RIGHT TO JUDICIAL REVIEW OF DISPUTES DECISIONS. 
/3/  THE COURT REACHES THIS CONCLUSION ON THE STRENGTH OF ITS
ASSERTIONS THAT GAO HAD NO BUSINESS EXERCISING ITS STATUTORY AUTHORITY
AND ADVISING THE COMMISSION THAT THE DISPUTES DECISION WAS ERRONEOUS,
THAT THE DEPARTMENT OF JUSTICE HAD NO BUSINESS EXERCISING ITS STATUTORY
AUTHORITY AND APPEARING IN THE COURT OF CLAIMS TO DEFEND PETITIONER'S
SUIT, AND THAT THE GOVERNMENT IS ALWAYS ENTITLED TO RELIEF IF THE
CONTRACTOR PERPETRATES A FRAUD.  NOTICEABLY ABSENT FROM THE COURT'S
OPINION IS ANY JUSTIFICATION FOR INTERPRETING THE DISPUTES CLAUSE AND
THE ACT TO APPLY ONLY WHEN A DISPUTES DECISION IS ADVERSE TO THE
CONTRACTOR.  SOMEHOW THE COURT CONSTRUES A CONTRACT AND A STATUTE THAT
BAR FINALITY FOR ALL DISPUTES DECISIONS TO REQUIRE FINALITY FOR
DISPUTES DECISIONS IN FAVOR OF CONTRACTORS. 

TODAY'S DECISION IS DEMONSTRABLY WRONG.  THE COURT HOLDS THAT
CONGRESS ENACTED THE WUNDERLICH ACT FOR THE BENEFIT OF CONTRACTORS, TO
ARM THEM WITH GROUNDS IN ADDITION TO FRAUD TO CHALLENGE IN COURT THE
FINALITY OF DISPUTES DECISIONS UNFAVORABLE TO THEM.  YET, WITHOUT AN
IOTA OF SUPPORT IN THE LANGUAGE OF THE ACT, WHICH EXPRESSLY GOVERNS
"ANY" DISPUTES DECISION IN "ANY SUIT," OR IN THE ACT'S LEGISLATIVE
HISTORY, WHICH CONFIRMS THAT THE EXPANDED GROUNDS OF JUDICIAL REVIEW
WERE TO BE AVAILABLE TO BOTH THE GOVERNMENT AND CONTRACTORS, THE COURT
HOLDS THAT THE GOVERNMENT, UNLIKE CONTRACTORS, MAY NOT RELY UPON THE
ACT TO CHALLENGE IN COURT THE FINALITY OF DISPUTES DECISIONS.  INDEED,
THE COURT GOES FURTHER, FOR, AS NOTED, THE DISPUTES CLAUSE BEFORE US
DID NOT PURPORT TO MAKE THE COMMISSION'S DISPUTES DECISIONS FINAL.  THE
COURT THUS HOLDS THAT THE ACT DENIES THE GOVERNMENT THE PRIVILEGE OF
ENTERING INTO A CONTRACT THAT AFFORDS IT AS WELL AS THE CONTRACTOR THE
RIGHT TO JUDICIAL REVIEW OF DISPUTES DECISIONS.  HENCE, WHILE THE ACT
ENSURES THAT CONTRACTORS ARE ENTITLED TO JUDICIAL REVIEW EVEN WHEN THE
DISPUTES CLAUSE PROVIDES FOR FINALITY, THE ACT ALSO, ACCORDING TO THE
COURT, ENSURES THAT THE GOVERNMENT IS DENIED JUDICIAL REVIEW EVEN WHEN
THE DISPUTES CLAUSE DOES NOT PROVIDE FOR FINALITY.  TODAY'S DECISION
PRODUCES THE ABSURD RESULT THAT WHEN THE GOVERNMENT AGREED TO A
DISPUTES CLAUSE WITH NO PROVISION FOR JUDICIAL REVIEW, IT COULD
NEVERTHELESS CHALLENGE THE FINALITY OF A DISPUTES DECISION AT LEAST FOR
FRAUD, BUT NOW THAT THE GOVERNMENT HAS AGREED TO A DISPUTES CLAUSE
SPECIFYING FIVE GROUNDS OF JUDICIAL REVIEW, INCLUDING FRAUD, IT IS
ENTITLED, HOLDS THE COURT, TO NONE AT ALL.  /4/  THE GOVERNMENT'S
POSITION IS THUS WORSE THAN IT WAS BEFORE THE ACT, FOR IT IS DEPRIVED
OF EVEN THE LIMITED REVIEW FOR FRAUD TO WHICH IT WAS ENTITLED UNDER
WUNDERLICH.  FINALLY, THE ACT FLATLY PROHIBITS DISPUTES CLAUSES THAT
MAKE DISPUTES DECISIONS FINAL ON QUESTIONS OF LAW.  THE CLAUSE BEFORE
US, FOLLOWING THE ACT, EXPRESSLY PROVIDED THAT THE COMMISSION'S
DISPUTES DECISIONS COULD NOT BE FINAL ON QUESTIONS OF LAW.  YET, IN THE
FACE OF THE ACT AND THE DISPUTES CLAUSE, THE COURT HOLDS THAT THE
COMMISSION'S DECISION IS FINAL ON QUESTIONS OF LAW. 

ANALYSIS OF THE JUDICIAL HISTORY OF DISPUTES CLAUSES, BOTH IN THIS
COURT AND IN THE COURT OF CLAIMS, WILL UNFORTUNATELY UNDULY EXTEND THE
LENGTH OF THIS OPINION.  BUT THE DEVASTATION TODAY'S DECISION WREAKS
UPON GOVERNMENT PROCUREMENT PRACTICES IS SUFFICIENT JUSTIFICATION, AND
CONGRESS SHOULD BE ALERT TO THE URGENT NEED FOR IMMEDIATE REMEDIAL
LEGISLATION.  CONGRESS ALONE CAN RESTORE THE FORMER BALANCE BETWEEN
GOVERNMENT AND CONTRACTOR, FOR TODAY'S DECISION NOT ONLY HOLDS THAT THE
ACT'S EXPANDED SCOPE OF JUDICIAL REVIEW IS AVAILABLE SOLELY FOR
CONTRACTORS, BUT ALSO HOLDS THAT THE ACT, IN SOME UNSPECIFIED WAY,
PROHIBITS THE CONTRACTING PARTIES FROM AGREEING TO A DISPUTES CLAUSE
THAT AFFORDS THE GOVERNMENT THAT SAME SCOPE OF REVIEW.  CONGRESS MUST
THEREFORE MAKE MORE EXPLICIT WHAT IS ALREADY EXPLICIT IN THE WUNDERLICH
ACT, BUT THIS TIME IN TERMS SO PLAIN THAT EVEN THIS COURT WILL BE
UNABLE TO THWART THE CONGRESSIONAL WILL. 

        I

   A 

THE CONTRACT IN KIHLBERG V. UNITED STATES, 97 U.S. 398 (1878), AS
THE COURT CONSTRUED IT, PROVIDED THAT THE DECISION OF A DESIGNATED
GOVERNMENT OFFICIAL WOULD BE "CONCLUSIVE."  THE OFFICIAL RENDERED A
DECISION ADVERSE TO THE CONTRACTOR, AND THE CONTRACTOR BROUGHT SUIT. 
BECAUSE THERE WAS "NEITHER ALLEGATION NOR PROOF OF FRAUD OR BAD FAITH"
BY THE OFFICIAL, THE COURT HELD THAT HIS DECISION COULD NOT "BE
SUBJECTED TO THE REVISORY POWER OF THE COURTS WITHOUT DOING VIOLENCE TO
THE PLAIN WORDS OF THE CONTRACT."  ID., AT 401.  THE COURT THEN
ENUMERATED THE STANDARD OF JUDICIAL REVIEW THAT HAS BEEN THE BASIS FOR
THE DECISION OF EVERY SUBSEQUENT DISPUTES CLAUSE CASE, BOTH IN THIS
COURT AND IN THE COURT OF CLAIMS:  "IN THE ABSENCE OF FRAUD OR SUCH
GROSS MISTAKE AS WOULD NECESSARILY IMPLY BAD FAITH, OR A FAILURE TO
EXERCISE AN HONEST JUDGMENT, HIS ACTION IN THE PREMISES IS CONCLUSIVE
UPON THE (CONTRACTOR) AS WELL AS UPON THE GOVERNMENT."  ID., AT 402. 
THE VERY FIRST CASE IN THIS COURT, THEN, LAID DOWN THE RULE THAT A
DECISION RENDERED PURSUANT TO A DISPUTES CLAUSE WAS EQUALLY BINDING
UPON BOTH PARTIES; THE CONTRACTOR AND THE GOVERNMENT COULD IMPEACH A
DISPUTES DECISION THAT THE CONTRACT PURPORTED TO MAKE FINAL, BUT ONLY
BY PROVING THAT THE DECISION WAS FRAUDULENT.  UNTIL TODAY, THIS COURT
NEVER DEPARTED FROM THE KIHLBERG VIEW THAT THE SAME STANDARD OF
JUDICIAL REVIEW IS AVAILABLE TO BOTH PARTIES. 

SWEENEY V. UNITED STATES, 109 U.S. 618 (1883), REITERATED THE
KIHLBERG RULE IN ANOTHER SUIT BY A CONTRACTOR DISSATISFIED WITH A
DISPUTES DECISION RENDERED BY A GOVERNMENT OFFICIAL.  BECAUSE "THERE
WAS NEITHER FRAUD, NOR SUCH GROSS MISTAKE AS WOULD NECESSARILY IMPLY
BAD FAITH, NOR ANY FAILURE TO EXERCISE AN HONEST JUDGMENT ON THE PART
OF THE OFFICER," THE COURT HELD, "ON THE AUTHORITY OF KIHLBERG V.
UNITED STATES," THAT THE OFFICIAL'S DECISION WAS CONCLUSIVE.  ID., AT
620. 

THE COURT NEXT DECIDED THREE CASES INVOLVING CONTRACTS BETWEEN
PRIVATE PARTIES.  IN MARTINSBURG & POTOMAC R. CO. V. MARCH, 114 U.S.
549 (1885), A CONTRACTOR AGREED TO DO CERTAIN WORK FOR A RAILROAD
COMPANY, AND THE CONTRACT PROVIDED THAT DISPUTES WOULD BE "FINAL AND
CONCLUSIVE."  ID., AT 553.  THE OFFICIAL'S DECISION WAS IN FAVOR OF THE
COMPANY, AND THE CONTRACTOR BROUGHT SUIT.  THE COURT, STATING THAT THE
"CASE IS WITHIN THE PRINCIPLES ANNOUNCED IN KIHLBERG V. UNITED STATES
AND SWEENEY V. UNITED STATES," ID., AT 550 (HERE, AND IN SUBSEQUENT
SIMILAR QUOTATIONS, CITATIONS NOT REPEATED), HELD THAT THE OFFICIAL'S
DECISION WAS CONCLUSIVE BECAUSE THERE WAS NO PROOF THAT HE "HAD BEEN
GUILTY OF FRAUD, OR HAD MADE SUCH GROSS MISTAKE IN HIS ESTIMATES AS
NECESSARILY IMPLIED BAD FAITH, OR HAD FAILED TO EXERCISE AN HONEST
JUDGMENT IN DISCHARGING THE DUTY IMPOSED UPON HIM," ID., AT 553. 

THE CONTRACT IN CHICAGO, S.F. & C.R. CO. V. PRICE, 138 U.S. 185
(1891), WAS ESSENTIALLY THE SAME AS THE CONTRACT IN MARCH.  IN PRICE,
HOWEVER, THE OFFICIAL'S DISPUTES DECISION WAS IN FAVOR OF THE
CONTRACTOR.  THE COMPANY REFUSED TO PAY IN ACCORDANCE WITH THE
DECISION, AND THE CONTRACTOR BROUGHT SUIT.  THE COURT FIRST REVIEWED
MARCH AND STRESSED THAT MARCH HAD APPLIED "THE PRINCIPLES ANNOUNCED IN
KIHLBERG V. UNITED STATES AND SWEENEY V. UNITED STATES."  ID., AT 193. 
THE COURT THEN POINTED OUT THAT "(THE ONLY DIFFERENCE BETWEEN THAT CASE
(MARCH) AND THE PRESENT ONE IS THAT THE ALLEGED MISTAKES OF THE
ENGINEER IN THE FORMER WERE FAVORABLE TO THE RAILROAD COMPANY, WHILE IN
THIS CASE THEY ARE FAVORABLE TO THE CONTRACTORS."  ID., AT 194.  "(THAT
DIFFERENCE," SAID THE COURT, "CANNOT AFFECT THE INTERPRETATION OF THE
CONTRACT."  IBID.  BECAUSE THERE WAS NO PROOF OF "FRAUD UPON THE PART
OF THE COMPANY'S ENGINEERS, OR SUCH GROSS MISTAKES BY THEM AS IMPLY BAD
FAITH," THE COURT HELD THAT THE DISPUTES DECISION WAS BINDING UPON THE
COMPANY.  ID., AT 195. 

PRICE THUS ESTABLISHED THAT THE PARTY WHOSE EMPLOYEE WAS DELEGATED
AUTHORITY TO MAKE THE DISPUTES DECISION COULD ALSO CHALLENGE THE
FINALITY OF THAT DECISION, ALTHOUGH, LIKE THE CONTRACTOR, ONLY UNDER
THE KIHLBERG TEST OF FRAUD.  THE COURT REAFFIRMED THIS APPLICATION OF
THE KIHLBERG RULE IN SHEFFIELD & BIRMINGHAM COAL, IRON & R. CO. V.
GORDON, 151 U.S. 285 (1894), HOLDING THAT "IN THE ABSENCE OF FRAUD OR
MISTAKE" BY THE COMPANY OFFICIAL, HIS DECISION IN FAVOR OF THE
CONTRACTOR "WAS CONCLUSIVE UPON THE COMPANY."  ID., AT 292. 

UNITED STATES V. GLEASON, 175 U.S. 588 (1900), INVOLVED A GOVERNMENT
OFFICIAL'S DISPUTES DECISION ADVERSE TO THE CONTRACTOR.  THE COURT
AGAIN AFFIRMED THE RULE OF KIHLBERG AND THE INTERVENING CASES 

     "THAT IT IS COMPETENT FOR PARTIES TO A CONTRACT, OF THE NATURE

  OF THE PRESENT ONE, TO MAKE IT A TERM OF THE CONTRACT THAT THE

DECISION OF AN ENGINEER, OR OTHER OFFICER, OF ALL OR SPECIFIED

  MATTERS OF DISPUTE THAT MAY ARISE DURING THE EXECUTION OF THE

  WORK SHALL BE FINAL AND CONCLUSIVE, AND THAT, IN THE ABSENCE OF

  FRAUD OR OF MISTAKE SO GROSS AS TO NECESSARILY IMPLY BAD FAITH,

  SUCH DECISION WILL NOT BE SUBJECTED TO THE REVISORY POWER OF THE

  COURTS.  MARTINSBURG & POTOMAC RAILROAD V. MARCH; CHICAGO, SANTA

  FE &C. RAILROAD V. PRICE."  ID., AT 602. 

THE COURT ALSO FOLLOWED THE KIHLBERG RULE IN RIPLEY V. UNITED STATES,
223 U.S. 695, 701-702, 704 (1912), AND MERRILL-RUCKAGABER CO. V. UNITED
STATES, 241 U.S. 387 (1916). 

IN UNITED STATES V. MASON & HANGER CO., 260 U.S. 323 (1922), THE
CONTRACTOR WAS PAID IN ACCORDANCE WITH A DISPUTES DECISION IN HIS
FAVOR, BUT THE COMPTROLLER OF THE TREASURY DISAGREED WITH THE DECISION
AND SUBSEQUENTLY DEDUCTED THE AMOUNT PAID FROM OTHER SUMS DUE THE
CONTRACTOR.  ID., AT 325.  THE CONTRACTOR BROUGHT SUIT, RELYING UPON
THE FINALITY OF THE DISPUTES DECISION.  THE COURT'S HOLDING WAS DIRECT
AND SIMPLE: 

    "WE HAVE DECIDED THAT THE PARTIES TO THE CONTRACT CAN SO

  PROVIDE AND THAT THE DECISION OF THE OFFICER IS CONCLUSIVE UPON

  THE PARTIES.  KIHLBERG V. UNITED STATES; MARTINSBURG & POTOMAC

  R.R. CO. V. MARCH; UNITED STATES V. GLEASON; RIPLEY V. UNITED

  STATES.  THIS IS EXTENDING THE RULE BETWEEN PRIVATE PARTIES TO

  THE GOVERNMENT."  ID., AT 326. 

MASON & HANGER, THEN, APPLIED THE KIHLBERG RULE WHEN THE CONTRACTOR
IN A GOVERNMENT CONTRACT RELIED UPON THE DISPUTES DECISION BY A
GOVERNMENT OFFICIAL AND THE GOVERNMENT CHALLENGED IT.  HENCE, BOTH
PARTIES TO A GOVERNMENT CONTRACT, LIKE BOTH PARTIES TO A PRIVATE
CONTRACT, AS IN PRICE AND GORDON, WERE FREE TO CHALLENGE THE FINALITY
OF A DISPUTES DECISION, ALTHOUGH ONLY UPON THE LIMITED GROUNDS
PERMISSIBLE UNDER KIHLBERG. 

MASON & HANGER ALSO HELD THAT "THE COMPTROLLER OF THE TREASURY HAS
NO POWER" OVER A DISPUTES DECISION, 260 U.S.,AT 326, MEANING THAT HIS
DISAGREEMENT WITH THE DECISION WAS IRRELEVANT AND HAD NO EFFECT IN
COURT, WHERE THE PARTIES' RIGHTS UNDER THE CONTRACT WERE DETERMINED. 
THE GOVERNMENT, LIKE THE CONTRACTOR, COULD PREVAIL ONLY BY PROVING THAT
THE DISPUTES DECISION WAS FRAUDULENT.  THE COMPTROLLER'S AUTHORITY WAS
LIMITED TO HIS POWER TO REFUSE TO SANCTION PAYMENT TO THE CONTRACTOR,
THEREBY FORCING THE CONTRACTOR TO BRING SUIT FOR A JUDICIAL
DETERMINATION OF HIS RIGHT TO PAYMENT IN ACCORDANCE WITH THE DISPUTES
DECISION IN HIS FAVOR.  /5/ 

IN SUM, THE RULE FIRST ANNOUNCED IN KIHLBERG IN 1878 HAD, WITH MASON
& HANGER IN 1922, BEEN HELD TO APPLY TO ANY DISPUTES DECISION, WHETHER
IN A GOVERNMENT OR IN A PRIVATE CONTRACT, AND TO APPLY NO MATTER WHICH
PARTY RELIED UPON THE FINALITY OF THE DECISION.  IF THE GOVERNMENT (OR,
IN A PRIVATE CONTRACT, THE PARTY WHOSE OFFICIAL DECIDED THE DISPUTE)
RELIED UPON THE FINALITY OF THE DECISION, THE CONTRACTOR HAD TO PROVE
THAT IT WAS FRAUDULENT.  KIHLBERG; SWEENEY; MARCH; GLEASON.  IF THE
CONTRACTOR RELIED UPON THE FINALITY OF THE DECISION, THE GOVERNMENT
(OR, IN A PRIVATE CONTRACT, THE PARTY WHOSE OFFICIAL DECIDED THE
DISPUTE) HAD TO PROVE THAT IT WAS FRAUDULENT.  PRICE; GORDON; MASON &
HANGER.  /6/ 

IN UNITED STATES V. MOORMAN, 338 U.S. 457 (1950), THE COURT ONCE
AGAIN GAVE EXTENDED CONSIDERATION TO THE PROPER JUDICIAL INTERPRETATION
OF DISPUTES CLAUSES.  THE COURT POINTED OUT THAT "(CONTRACTUAL
PROVISIONS SUCH AS THESE HAVE LONG BEEN USED BY THE GOVERNMENT.  NO
CONGRESSIONAL ENACTMENT CONDEMNS THEIR CREATION OR ENFORCEMENT."  ID.,
AT 460.  THE COURT THEN REVIEWED KIHLBERG, SWEENEY, AND MARCH, AND SAID
THAT "(THE HOLDINGS OF THE FOREGOING CASES HAVE NEVER BEEN DEPARTED
FROM BY THIS COURT.  THEY STAND FOR THE PRINCIPLE THAT PARTIES
COMPETENT TO MAKE CONTRACTS ARE ALSO COMPETENT TO MAKE SUCH
AGREEMENTS."  ID., AT 461.  THE COURT ADDED THAT "(IF PARTIES COMPETENT
TO DECIDE FOR THEMSELVES ARE TO BE DEPRIVED OF THE PRIVILEGE OF MAKING
SUCH ANTICIPATORY PROVISIONS FOR SETTLEMENT OF DISPUTES, THIS
DEPRIVATION SHOULD COME FROM THE LEGISLATIVE BRANCH OF GOVERNMENT." 
ID., AT 462. 

FINALLY, CAME UNITED STATES V. WUNDERLICH, 342 U.S. 98 (1951).  THE
CONTRACT CONTAINED THE USUAL DISPUTES CLAUSE PROVIDING THAT THE
DISPUTES DECISION WAS "FINAL AND CONCLUSIVE."  ID., AT 99.  AFTER
NOTING THAT THE SAME DISPUTES CLAUSE HAD BEEN UPHELD IN MOORMAN, THE
COURT STATED: 

     "CONTRACTS, BOTH GOVERNMENTAL AND PRIVATE, HAVE BEEN BEFORE

  THIS COURT, IN SEVERAL CASES IN WHICH PROVISIONS EQUIVALENT TO

  (THIS DISPUTES CLAUSE) HAVE BEEN APPROVED AND ENFORCED 'IN THE

  ABSENCE OF FRAUD OR SUCH GROSS MISTAKES AS WOULD NECESSARILY

  IMPLY BAD FAITH, OR A FAILURE TO EXERCISE AN HONEST JUDGMENT . .

  . . '  KIHLBERG V. UNITED STATES; SWEENEY V. UNITED STATES;

  MARTINSBURG & P.R. CO. V. MARCH; CHICAGO, S.F. & C.R. CO. V.

PRICE."  ID., AT 99-100. 

WE THUS HAVE AN UNBROKEN LINE OF CASES IN THIS COURT, FROM 1878 TO
1951, APPLYING A SIMPLE, STRAIGHTFORWARD RULE OF JUDICIAL REVIEW.  A
CONTRACTUAL DISPUTES CLAUSE MAKING FINAL A DECISION BY AN AGENT OF ONE
OF THE PARTIES WAS GIVEN FULL EFFECT IN COURT, SUBJECT TO THE
JUDICIALLY CREATED EXCEPTION THAT ALLOWED RELIEF TO THE PARTY
CHALLENGING THE DECISION IF HE WAS ABLE TO PROVE THAT IT WAS
FRAUDULENT.  THIS RULE APPLIED WHETHER THE CONTRACT WAS GOVERNMENT OR
PRIVATE AND NO MATTER WHICH PARTY CHALLENGED THE FINALITY OF THE
DECISION.  IN SHORT, A DISPUTES CLAUSE WAS EQUALLY BINDING UPON BOTH
PARTIES. 

        B 

MOST DISPUTES CLAUSE CASES, OF COURSE, HAVE BEEN DECIDED NOT BY THIS
COURT BUT BY THE COURT OF CLAIMS.  THAT COURT FOLLOWED THE KIHLBERG
RULE WHEN A CONTRACTOR CHALLENGED A DISPUTES DECISION AGAINST HIM, SEE
E.G., KENNEDY V. UNITED STATES, 24 CT.CL. 122 (1889); P. H. MCLAUGHLIN
& CO., V. UNITED STATES, 37 CT.CL. 150 (1902); PACIFIC HARDWARE CO. V.
UNITED STATES, 49 CT.CL. 327 (1914); BRINCK V. UNITED STATES, 53 CT.CL.
170 (1918); SOUTHERN SHIPYARD CORP. V. UNITED STATES, 76 CT.CL. 468
(1932), AS WELL AS WHEN THE GOVERNMENT CHALLENGED A DISPUTES DECISION
IN THE CONTRACTOR'S FAVOR. 

IN PACIFIC HARDWARE, SUPRA, THE CONTRACT PROVIDED THAT A GOVERNMENT
OFFICIAL WOULD DEDUCT SPECIFIED AMOUNTS FROM THE CONTRACT PRICE IF THE
CONTRACTOR DELAYED IN PERFORMING THE CONTRACT.  DEDUCTIONS WERE MADE,
AND THE CONTRACTOR BROUGHT SUIT.  THE COURT APPLIED THE KIHLBERG RULE
AND UPHELD THE DEDUCTIONS.  49 CT.CL.,AT 336.  THE CONTRACT ALSO
PROVIDED THAT THE OFFICIAL COULD WAIVE DEDUCTIONS UNDER CERTAIN
CIRCUMSTANCES.  THE CONTRACTOR ARGUED THAT THIS POWER VIOLATED PUBLIC
POLICY AND THEREFORE VITIATED THE CONTRACT.  THE COURT REJECTED THE
ARGUMENT, BUT ADDED THAT THE POWER TO DECIDE IN FAVOR OF THE CONTRACTOR
BY WAIVING DEDUCTIONS, LIKE THE POWER TO DECIDE AGAINST THE CONTRACTOR
BY MAKING DEDUCTIONS, WAS SUBJECT TO THE KIHLBERG RULE: 

     "OF COURSE, IF THERE WERE FRAUD OR SUCH GROSS ERROR AS IMPLIES

  BAD FAITH OR A FAILURE TO EXERCISE AN HONEST JUDGMENT IN DECIDING

  THAT THE DEDUCTIONS BE NOT MADE, THE GOVERNMENT WOULD NOT BE

  BOUND AND THE CONTRACTOR WOULD REMAIN LIABLE."  ID., AT 337. 

IN YALE & TOWNE MFG. CO. V. UNITED STATES, 58 CT.CL. 633 (1923), THE
DISPUTES DECISION WAS IN FAVOR OF THE CONTRACTOR, BUT THE GOVERNMENT
REFUSED TO PAY BECAUSE THE COMPTROLLER OF THE TREASURY DISAGREED WITH
THE DECISION.  THE CONTRACTOR ARGUED "THAT THE CONTRACT REPOSED IN THE
CONTRACTING OFFICER . . . THE RIGHT TO DETERMINE WHETHER OR NOT AND THE
EXTENT TO WHICH THE CONTRACTOR WAS ENTITLED TO EXTENSION OF TIME, AND
THAT THE FINDING OF THAT OFFICER WAS CONCLUSIVE UPON THE PARTIES IN THE
ABSENCE OF FRAUD OR MISTAKES SO GROSS AS TO IMPLY BAD FAITH."  ID., AT
637. 

THE COURT, NOTING "THAT A LONG LINE OF DECISIONS NOT ONLY BY THIS
COURT BUT BY THE SUPREME COURT REQUIRES THE SUSTAINING OF THE
(CONTRACTOR'S) CONTENTION," STATED: 

    "PROVISIONS IN GOVERNMENT CONTRACTS REPOSING IN SOME DESIGNATED

  OFFICIAL THE RIGHT TO DETERMINE CERTAIN QUESTIONS AND MAKING HIS

  DETERMINATION THEREOF CONCLUSIVE ARE OF FREQUENT OCCURRENCE. 

  SUCH PROVISIONS ARE INSERTED LARGELY FOR THE PROTECTION OF THE

  GOVERNMENT, AND THE CASES IN WHICH SUCH A DETERMINATION BY THE

  DESIGNATED OFFICIAL HAS BEEN UPHELD BY THE COURTS HAVE BEEN

  LARGELY CASES IN WHICH THE RULE HAS BEEN INVOKED IN FAVOR OF THE

  UNITED STATES AND AGAINST THE (CONTRACTOR), BUT THE RULE IS NONE

 THE LESS EFFECTIVE IF PERCHANCE IT OCCASIONALLY MAY OPERATE THE

  OTHER WAY."  ID., AT 638. 

IN PENN BRIDGE CO. V. UNITED STATES, 59 CT.CL. 892 (1924), THE
DISPUTES DECISION WAS IN FAVOR OF THE CONTRACTOR, BUT THE COMPTROLLER
GENERAL DISAGREED WITH THE DECISION AND DEDUCTED THE AMOUNT FROM OTHER
SUMS DUE THE CONTRACTOR.  THE COURT, REFERRING TO THE COMPTROLLER'S
ATTEMPT TO "SUBSTITUTE HIS JUDGMENT FOR THAT OF THE CONTRACTING OFFICER
AND THEREBY ELIMINATE FROM THE CASE THE FINDING OF THE CONTRACTING
OFFICER WHEN THE RIGHTS OF THE PARTIES ARE IN THIS COURT FOR
ADJUDICATION," ID., AT 898, STATED THAT "ACTION BY THE COMPTROLLER
COULD (NOT) IN ANY WAY CONCLUDE THIS COURT IN THE DETERMINATION OF THE
RIGHTS OF THE PARTIES UNDER THE CONTRACT," ID., AT 896.  THE COURT THEN
APPLIED THE KIHLBERG RULE.  ID., AT 897. 

PENN BRIDGE, THEN, ASIDE FROM REAFFIRMING THAT THE SAME RULE OF
JUDICIAL REVIEW APPLIED WHETHER THE GOVERNMENT OR THE CONTRACTOR
CHALLENGED THE FINALITY OF A DISPUTES DECISION, ALSO DEMONSTRATES THAT
GAO'S VIEW OF THE CORRECTNESS OF A DISPUTES DECISION WAS OF NO EFFECT
IN COURT.  GAO'S ONLY POWER-- THE POWER OF THE PURSE-- WAS TO FORCE THE
CONTRACTOR TO BRING SUIT AND THUS TO OBTAIN JUDICIAL REVIEW FOR THE
GOVERNMENT.  BUT ONCE THE CASE REACHED COURT, REVIEW WAS THE SAME FOR
BOTH PARTIES. 

GAO'S OPINION OF A DISPUTES DECISION WAS IRRELEVANT IN COURT EVEN
WHEN GAO FAVORED THE CONTRACTOR.  IN EATON, BROWN & SIMPSON, INC., V.
UNITED STATES, 62 CT.CL. 668 (1926), THE DISPUTES DECISION WAS IN FAVOR
OF THE GOVERNMENT, BUT THE COMPTROLLER GENERAL DISAGREED AND PAID THE
CONTRACTOR.  IN THE CONTRACTOR'S SUIT TO RECOVER ON OTHER CLAIMS, THE
COURT HELD THAT THE DISPUTES DECISION CONTROLLED AND DEDUCTED THE
AMOUNT GAO HAD PAID FROM OTHER SUMS DUE THE CONTRACTOR.  "THE ACTION OF
THE COMPTROLLER IS NOT CONCLUSIVE UPON THIS COURT IN DETERMINING THE
RIGHTS OF THE PARTIES.  SEE PENN BRIDGE CO. V. UNITED STATES."  ID., AT
685.     IN CARROLL V. UNITED STATES, 76 CT.CL. 103 (1932), THE
COMPTROLLER GENERAL DISAGREED WITH A DISPUTES DECISION IN FAVOR OF THE
CONTRACTOR AND ASSESSED DAMAGES IN A SUM GREATER THAN THE AMOUNT DUE
UNDER THE CONTRACT.  THE CONTRACTOR BROUGHT SUIT, AND THE GOVERNMENT
ARGUED THAT IT WAS ENTITLED TO THE EXCESS.  THE COURT REPLIED: 

     "THE ISSUE IS NOT A NEW OR NOVEL ONE INSOFAR AS JUDICIAL

  PRECEDENTS ARE CONCERNED.  AT LEAST BEGINNING WITH THE CASE OF

  KIHLBERG V. UNITED STATES TO THE PRESENT TIME, THE SUPREME COURT

  HAS UNIFORMLY HELD THAT IN GOVERNMENT CONTRACTS CONTAINING

  PROVISIONS SIMILAR TO THE ONE IN SUIT, THE PARTIES ARE COMPETENT

  TO BIND THEMSELVES TO THE CONCLUSIVENESS AND FINALITY OF THE

  ACTION AND FINDINGS OF THE DEPARTMENT WITH WHICH THE CONTRACT WAS

  MADE, AND THAT SUCH ACTION IS NOT OPEN TO THE SUPERVISORY POWER

  OF THE COURTS UNLESS OVERTURNED BY PROOF OF FRAUD OR SUCH GROSS

  ERROR AS TO WARRANT THE IMPLICATION OF FRAUD."  ID., AT 124-125. 

IN ALBINA MARINE IRON WORKS V. UNITED STATES, 79 CT.CL. 714 (1934),
THE DISPUTES DECISION WAS IN THE CONTRACTOR'S FAVOR, BUT THE
COMPTROLLER GENERAL DISAGREED AND ASSESSED DAMAGES.  THE COURT HELD
THAT THE DISPUTES DECISION 

"WAS A FINAL DISPOSITION OF THE MATTER.  NEITHER FRAUD NOR BAD FAITH
IS ALLEGED OR PROVEN.  THE COURT CANNOT GO BEHIND THE DECISION OF THE
CONTRACTING OFFICER WHERE THE CONTRACT MAKES HIM THE FINAL ARBITER OF
THE FACTS OF THE CASE UNLESS THERE HAS BEEN FRAUD OR SUCH GROSS ERROR
WHICH, IN EFFECT, WOULD IMPLY BAD FAITH.  THE CASES IN THIS COURT AND
THE SUPREME COURT SO HOLDING ARE NUMEROUS."  ID., AT 720.  AFTER
REPEATING THAT IT COULD NOT REVIEW THE DISPUTES DECISION "WITHOUT THE
ESTABLISHMENT OF FRAUD OR SUCH GROSS ERROR WHICH WOULD IMPLY BAD
FAITH," THE COURT CONCLUDED: 

"IT IS SELDOM THAT A CASE ARISES LIKE THE INSTANT CASE, WHERE THE
CONTRACTOR IS UPHOLDING THE DECISION OF THE CONTRACTING OFFICER AND THE
GOVERNMENT IS ATTEMPTING TO OVERTHROW THE DECISION OF THE OFFICER
APPOINTED AND DESIGNATED BY IT TO CONTRACT AND CARRY OUT THE TERMS OF
THE UNDERTAKING.  UNLESS PROVEN TO THE CONTRARY, FULL FAITH AND CREDIT
SHOULD BE ACCORDED AN OFFICER OF THE GOVERNMENT IN ARRIVING AT A
DECISION WHICH REQUIRES FAIR AND IMPARTIAL ACTION ON HIS PART."  ID.,
AT 721. 

IN MCSHAIN CO. V. UNITED STATES, 83 CT.CL. 405 (1936), THE
DESIGNATED GOVERNMENT OFFICIAL DECIDED THAT THE CONTRACTOR'S DELAY IN
COMPLETING THE CONTRACT WAS UNAVOIDABLE.  THE COMPTROLLER GENERAL LATER
DECIDED THAT PART OF THE DELAY WAS THE CONTRACOR'S FAULT AND DEDUCTED
DAMAGES FROM THE AMOUNT DUE UNDER THE CONTRACT.  THE CONTRACTOR BROUGHT
SUIT, RELYING UPON THE FINALITY OF THE DISPUTES DECISION.  THE COURT
SAID: 

"NEITHER FRAUD NOR BAD FAITH IS ALLEGED OR PROVEN.  THIS COURT AND
THE SUPREME COURT BY NUMEROUS DECISIONS HAVE HELD THERE IS NO GOING
BEHIND THE DECISION OF THE CONTRACTING OFFICER WHEN THE CONTRACT
PROVIDES THAT 'HIS FINDING OF FACTS THEREIN SHALL BE FINAL AND
CONCLUSIVE ON THE PARTIES THERETO.'  THE ACTION OF THE COMPTROLLER
GENERAL WAS WITHOUT LEGAL AUTHORITY.  KIHLBERG V. UNITED STATES; UNITED
STATES V. GLEASON."  ID., AT 409.  /7/ 

IN B-W CONSTRUCTION CO. V. UNITED STATES, 97 CT.CL. 92 (1942), THE
COMPTROLLER GENERAL DEDUCTED DAMAGES FOR DELAY AFTER A DISPUTES
DECISION IN THE CONTRACTOR'S FAVOR.  THE COURT HELD THAT BECAUSE OF THE
DISPUTES CLAUSE "(IT IS . . . THE ACTION OF THE HEAD OF THE DEPARTMENT
THAT IS BEFORE US FOR REVIEW.  ON THE QUESTION NOW BEFORE US THAT
ACTION IS BINDING ON US UNLESS WE FIND THAT IT WAS ARBITRARY OR GROSSLY
ERRONEOUS.  IN NO EVENT ARE WE BOUND UNDER THIS CONTRACT BY THE ACTION
OF THE COMPTROLLER GENERAL."  ID., AT 123. 

IN MITCHELL CANNERIES V. UNITED STATES, 111 CT.CL. 228, 77 F.SUPP. 
498 (1948), THE COMPTROLLER GENERAL DISAGREED WITH A DISPUTES DECISION
IN FAVOR OF THE CONTRACTOR AND SET OFF THAT AMOUNT AGAINST OTHER SUMS
DUE THE CONTRACTOR ON OTHER CONTRACTS.  THE COURT APPLIED "(THE
ESTABLISHED PRINCIPLE OF LAW THAT THE FINDINGS OF FACT OF A CONTRACTING
OFFICER ARE BINDING UPON BOTH THE GOVERNMENT AND THE CONTRACTOR IF
THERE IS NO FRAUD, GROSS ERROR OR ARBITRARINESS BY THE CONTRACTING
OFFICER AMOUNTING TO BAD FAITH."  ID., AT 247, 77 F.SUPP.AT 502. 

THESE COURT OF CLAIMS CASES ARE FURTHER COGENT AUTHORITY THAT THE
GOVERNMENT WAS, UNTIL TODAY, ENTITLED TO EXACTLY THE SAME JUDICIAL
REVIEW AS CONTRACTORS.  A DISPUTES CLAUSE PROVIDING FOR A FINAL
DECISION BY A GOVERNMENT OFFICIAL WAS EQUALLY BINDING UPON BOTH
PARTIES.  GAO'S OPINION OF THAT DECISION WAS IRRELEVANT IN COURT. 
GAO'S ONLY POWER WAS TO REFUSE TO SANCTION PAYMENT UNDER A DISPUTES
DECISION FAVORABLE TO A CONTRACTOR AND THEREBY COMPEL THE CONTRACTOR TO
BRING SUIT.  ONCE IN COURT, THE STANDARD OF REVIEW APPLICABLE TO
CONTRACTOR CHALLENGES LIKEWISE CONTROLLED THE GOVERNMENT'S CHALLENGE. 

THE DISTRICT COURTS REACHED THE IDENTICAL RESULT.  IN JAMES GRAHAM
MFG. CO. V. UNITED STATES, 91 F.SUPP.  715 (ND CAL. 1950), THE
COMPTROLLER GENERAL REFUSED TO ACCEPT A DISPUTES DECISION IN FAVOR OF
THE CONTRACTOR.  ALTHOUGH THE AGENCY ADHERED TO THE MERITS OF ITS
DECISION, IT REFUSED TO PAY BECAUSE OF THE COMPTROLLER'S CONTRARY
VIEW.  THE COURT SAID: 

     "ANOTHER OFFICER OF THE UNITED STATES GOVERNMENT, THE

  COMPTROLLER GENERAL, WHO HAS GENERAL CONTROL OF THE GOVERNMENT'S

  PURSE STRINGS, HAS REFUSED TO SANCTION PAYMENT OF THE ACCOUNT

  WHICH THE NAVY DEPARTMENT HAS APPROVED.  THE QUESTION . . . IS:

  HAS HE POWER TO DETERMINE THAT PAYMENT SHALL NOT BE MADE? 

"THE POWERS OF THE COMPTROLLER GENERAL ARE EXTENSIVE AND

BROAD.  BUT HE DOES NOT, ABSENT FRAUD OR OVERREACHING, HAVE

  AUTHORITY TO DETERMINE THE PROPRIETY OF CONTRACT PAYMENTS WHEN

  THE CONTRACTS THEMSELVES VEST THE FINAL POWER OF DETERMINATION IN

  THE CONTRACTING EXECUTIVE DEPARTMENT.  UNITED STATES V. MASON &

  HANGER CO.; UNITED STATES V. MOORMAN."  ID., AT 716.  /8/ 

IN CONSOLIDATED VULTEE AIRCRAFT CORP. V. UNITED STATES, 97 F.SUPP. 
948 (DEL. 1951), THE CONTRACTOR RECEIVED AN ADVERSE DISPUTES DECISION
FROM THE CONTRACTING OFFICER BUT WON REVERSAL ON APPEAL TO THE AGENCY. 
GAO DISAGREED WITH THE AGENCY'S DECISION AND REFUSED TO PAY, FORCING
THE CONTRACTOR TO BRING SUIT.  THE COURT HELD FOR THE CONTRACTOR ON THE
AUTHORITY OF MASON & HANGER, PENN BRIDGE, AND JAMES GRAHAM.  ID., AT
951. 

        C 

THE LAW WAS THUS CRYSTAL CLEAR.  THE DISTRICT COURTS, THE COURT OF
CLAIMS, AND THIS COURT CONSISTENTLY APPLIED THE RULE, ORIGINALLY
ANNOUNCED ALMOST A CENTURY AGO IN KIHLBERG, THE CONTRACTUAL CLAUSES
PROVIDING FOR THE FINALITY OF DISPUTES DECISIONS RENDERED BY AN
EMPLOYEE OF ONE OF THE PARTIES WERE ENFORCEABLE IN COURT, WITH THE
JUDICIALLY CREATED EXCEPTION FOR FRAUDULENT DECISIONS.  NO COURT, NOR
EVEN ANY CONTRACTOR, EVER QUESTIONED THAT GAO COULD OBTAIN JUDICIAL
REVIEW FOR THE GOVERNMENT SIMPLY BY REFUSING TO APPROVE PAYMENT ON A
DISPUTES DECISION FAVORABLE TO A CONTRACTOR.  IT WAS ACCEPTED BY ALL
THAT THE GOVERNMENT AND THE CONTRACTOR BOTH WERE ENTITLED TO JUDICIAL
REVIEW.  /9/  THE PROBLEM THAT GAVE RISE TO THE WUNDERLICH ACT WAS NOT
WHO WAS ENTITLED TO JUDICIAL REVIEW NOR HOW JUDICIAL REVIEW WAS TO BE
ATTAINED.  THE PROBLEM WAS THE SCOPE OF JUDICIAL REVIEW. 

AS THE COURT NOTED IN UNITED STATES V. BIANCHI & CO., 373 U.S. 709. 
713 (1963), UNDER THE KIHLBERG RULE A COURT'S FUNCTION "IN MATTERS
GOVERNED BY 'DISPUTES' CLAUSES WAS IN EFFECT TO GIVE AN EXTREMELY
LIMITED REVIEW OF THE ADMINISTRATIVE DECISION"; THE COURT OF CLAIMS,
HOWEVER, HAD "SOMEWHAT EXPANDED" THE SCOPE OF JUDICIAL REVIEW "OVER THE
YEARS."  SEE, E.G., NEEDLES V. UNITED STATES, 101 CT.CL. 535, 601-607
(1944).  IT WAS THIS EXPANSION OF THE SCOPE OF JUDICIAL REVIEW THAT
WUNDERLICH ADDRESSED. 

CERTIORARI WAS GRANTED IN WUNDERLICH "TO CLARIFY THE RULE OF THIS
COURT WHICH CREATED AN EXCEPTION TO THE CONCLUSIVENESS OF SUCH
ADMINISTRATIVE DECISIONS)."  342 U.S.,AT 99.  THE COURT GAVE A
RESTRICTIVE INTERPRETATION TO THIS EXCEPTION. 

     "DESPITE THE FACT THAT OTHER WORDS SUCH AS 'NEGLIGENCE,'

  'INCOMPETENCE,' 'CAPRICIOUSNESS,' AND 'ARBITRARY,' HAVE BEEN USED

  IN THE COURSE OF THE OPINIONS, THIS COURT HAS CONSISTENTLY UPHELD

  THE FINALITY OF THE DEPARTMENT HEAD'S DECISION UNLESS IT WAS

FOUNDED ON FRAUD, ALLEGED AND PROVED.  SO FRAUD IS IN ESSENCE THE

  EXCEPTION.  BY FRAUD WE MEAN CONSCIOUS WRONGDOING, AN INTENTION

  TO CHEAT OR BE DISHONEST.  THE DECISION OF THE DEPARTMENT HEAD,

  ABSENT FRAUDULENT CONDUCT, MUST STAND UNDER THE PLAIN MEANING OF

  THE CONTRACT."  ID., AT 100. 

WITHIN A MONTH AFTER WUNDERLICH WAS DECIDED, ITS RESTRICTIVE SCOPE
OF JUDICIAL REVIEW WAS APPLIED AGAINST THE GOVERNMENT.  IN LEEDS &
NORTHRUP CO. V. UNITED STATES, 101 F.SUPP.  999 (ED PA. 1951), THE
CONTRACTOR, AFTER A FAVORABLE DISPUTES DECISION, WAS REIMBURSED FOR
CERTAIN COSTS.  SEVERAL YEARS LATER, GAO REVIEWED THAT DECISION,
DISAGREED WITH IT, AND SET OFF THE AMOUNT ALREADY PAID FROM SUMS DUE
THE CONTRACTOR ON ANOTHER CONTRACT.  THE CONTRACTOR WAS THEREFORE
COMPELLED TO BRING SUIT.  THE COURT FIRST POINTED OUT THAT GAO'S POWER 

"IS SUBJECT TO THE RIGHTS OF PARTIES TO A CONTRACT, INCLUDING THE
GOVERNMENT, TO PROVIDE FOR SOME DESIGNATED PERSON, OR PERSONS, EVEN IF
IN THE EMPLOY OF ONE OF THE PARTIES, TO MAKE A FINAL DETERMINATION OF
ANY QUESTION WHICH MAY ARISE BETWEEN THE.  THIS PRINCIPLE HAS BEEN
UNEQUIVOCALLY DECLARED BY THE

  COURTS, INCLUDING THE SUPREME COURT OF THE UNITED STATES, IN MANY
CASES."  ID., AT 1002.  AFTER QUOTING EXTENSIVELY FROM JAMES GRAHAM,
THE COURT STATED THE RULE OF JUDICIAL REVIEW AS FOLLOWS: 

     "THE BUREAU'S DETERMINATIONS OF QUESTIONS OF FACT UNDER (THE

  DISPUTES CLAUSE) ARE FINAL AND CONCLUSIVE IN THE ABSENCE OF

FRAUD.  UNITED STATES V. WUNDERLICH.  FOR A COURT TO SET ASIDE

  SUCH DETERMINATIONS UNDER (THE DISPUTES CLAUSE), FRAUD, MEANING

  CONSCIOUS WRONGDOING OR AN INTENTION TO CHEAT OR BE DISHONEST,

  MUST BE ALLEGED AND PROVED.  UNITED STATES V. WUNDERLICH."  ID.,

  AT 1003. 

SEE ALSO SUNROC REFRIGERATION CO. V. UNITED STATES, 104 F.SUPP.  131
(ED PA. 1952), WHICH, FOLLOWING LEEDS & NORTHRUP, ALSO APPLIED THE
WUNDERLICH SCOPE OF REVIEW AGAINST THE GOVERNMENT. 

        II 

THE WUNDERLICH OPINION CONCLUDED, "IF THE STANDARD OF FRAUD THAT WE
ADHERE TO IS TOO LIMITED, THAT IS A MATTER FOR CONGRESS."  342 U.S.,AT
100.  ALMOST IMMEDIATELY AFTER THE DECISION WAS ISSUED, CONGRESSIONAL
LEGISLATION WAS SOUGHT TO EXPAND THE SCOPE OF JUDICIAL REVIEW LIMITED
BY WUNDERLICH TO "FRAUD" IN A NARROW SENSE.  I HAVE ATTACHED AN
APPENDIX DETAILING THE LEGISLATIVE HISTORY AND SHALL ONLY SUMMARIZE
THAT HISTORY HERE. 

ALTHOUGH SEVERAL BILLS WERE INTRODUCED IN THE 82D CONGRESS,
CONGRESSIONAL ATTENTION FOCUSED UPON S. 2487.  IN ITS ORIGINAL FORM, S.
2487 PROVIDED: 

     "THAT NO PROVISION OF ANY (GOVERNMENT) CONTRACT . . . RELATING

  TO THE FINALITY OR CONCLUSIVENESS OF ANY DECISION OF THE

  GOVERNMENT (OFFICIAL), IN A DISPUTE INVOLVING A QUESTION

  CONSTRUED TO LIMIT JUDICIAL REVIEW OF ANY SUCH DECISION ONLY TO

  CASES IN WHICH FRAUD BY SUCH GOVERNMENT (OFFICIAL) IS ALLEGED." 

WUNDERLICH, OF COURSE, CONSTRUED THE STANDARD DISPUTES CLAUSE, WHICH
PURPORTED TO MAKE DISPUTES DECISIONS FINAL, TO LIMIT JUDICIAL REVIEW TO
INSTANCES OF FRAUDULENT DECISIONS.  S. 2487, THEN, WAS SIMPLY AN
ACCEPTANCE OF THE INVITATION EXTENDED IN WUNDERLICH ITSELF.  S. 2487,
HOWEVER, DID NOT SPECIFY WHAT THE SCOPE OF JUDICIAL REVIEW WOULD BE,
BUT MERELY DIRECTED THAT JUDICIAL REVIEW COULD NOT BE LIMITED TO
FRAUD.  MOREOVER, THERE WAS NO INDICATION IN THE LANGUAGE OF S. 2487
THAT IT WAS OVERRULING WUNDERLICH ONLY AS TO DISPUTES DECISIONS
UNFAVORABLE TO CONTRACTORS.  IT OBVIOUSLY APPLIED TO THE JUDICIAL
REVIEW OF "ANY SUCH DECISION." 

THE COMPTROLLER GENERAL'S INITIAL REPORT OF GAO'S VIEWS ON S. 2487
MADE THAT ABUNDANTLY CLEAR.  THE REPORT CRITICIZED WUNDERLICH AS
CONTRARY TO THE INTERESTS OF BOTH THE GOVERNMENT AND CONTRACTORS. 
INDEED, AS A REPRESENTATIVE OF THE GOVERNMENT, THE COMPTROLLER GENERAL
STRESSED WUNDERLICH'S UNDESIRABLE IMPACT UPON THE GOVERNMENT'S
INTEREST, FOR ADMINISTRATIVE "OFFICIALS CAN MAKE JUST AS ARBITRARY
DETERMINATIONS IN FAVOR OF CONTRACTORS, AT THE EXPENSE OF THE
TAXPAYERS."  /10/  AND, AS THE ASSISTANT COMPTROLLER GENERAL PUT IT IN
HIS TESTIMONY AT THE SENATE HEARINGS, WUNDERLICH "MEANS THAT THE
DECISION OF THE ADMINISTRATIVE OFFICIALS NEARLY ALWAYS WILL BE FINAL
BECAUSE OF THE EXTREME DIFFICULTY OF PROVING FRAUD."  /11/  BECAUSE THE
RESTRICTED SCOPE OF JUDICIAL REVIEW PRESCRIBED IN WUNDERLICH, APPLIED
TO THE GOVERNMENT NO LESS THAN TO CONTRACTORS, GAO HAD GOOD REASON FOR
ITS CONCERN.  /12/ 

GAO THEN OFFERED A SUBSTITUTE BILL THAT IT BELIEVED WOULD PROTECT
THE GOVERNMENT'S INTERESTS.  THE BILL PROVIDED THAT A DISPUTES CLAUSE
DECISION 

"SHALL NOT BE TREATED AS BINDING IF THE GENERAL ACCOUNTING OFFICE OR
A COURT FINDS THAT THE ACTION OF (THE GOVERNMENT OFFICIAL) IS
FRAUDULENT, ARBITRARY, CAPRICIOUS, GROSSLY ERRONEOUS, OR THAT IT IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE." 

GAO'S SUBSTITUTE BILL THUS DIFFERED FROM S. 2487 IN TWO RESPECTS. 
FIRST, RATHER THAN MERELY REVERSING WUNDERLICH, IT EXPLICITLY DEFINED
THE EXPANDED SCOPE OF REVIEW BY SPECIFYING FIVE GROUNDS UPON WHICH A
DISPUTES DECISION COULD BE SET ASIDE.  CLEARLY THIS EXPANDED REVIEW WAS
TO OPERATE FOR BOTH CONTRACTORS AND THE GOVERNMENT, JUST AS THE "FRAUD"
STANDARD OF REVIEW ALWAYS HAD.  IT WOULD BE ABSURD TO SUPPOSE THAT GAO
DEFINED THE EXPANDED SCOPE OF REVIEW ONLY FOR CONTRACTORS.     SECOND,
GAO'S SUBSTITUTE BILL AUTHORIZED GAO REVIEW IN ADDITION TO JUDICIAL
REVIEW.  MORE PRECISELY, IT EMPOWERED GAO AS WELL AS THE COURTS TO SET
ASIDE ANY DISPUTES DECISION, WHETHER FAVORABLE TO THE CONTRACTOR OR
FAVORABLE TO THE GOVERNMENT.  THAT WAS A SIGNIFICANT EXPANSION OF S.
2487.  GAO NEVER PREVIOUSLY WAS EMPOWERED TO UPSET A DISPUTES
DECISION.  RATHER, GAO AUTHORITY WAS ALWAYS LIMITED TO REFUSING TO
SANCTION PAYMENT ON A DECISION FAVORABLE TO A CONTRACTOR, THEREBY
FORCING HIM INTO COURT.  AT THAT POINT, OF COURSE, GAO'S VIEW OF THE
MERITS OF THE DISPUTES DECISION WAS IRRELEVANT.  CONSEQUENTLY, GAO'S
SUBSTITUTE BILL, IF ENACTED, WOULD HAVE INCREASED GAO'S POWER
ENORMOUSLY, FOR IT EFFECTIVELY AUTHORIZED GAO TO OUST THE COURTS OF ALL
JURISDICTION TO REVIEW DISPUTES DECISIONS THAT GAO CONSIDERED
UNACCEPTABLE.  NOT SURPRISINGLY, THIS PART OF GAO'S PROPOSAL BECAME
HIGHLY CONTROVERSIAL. 

EXTENDED HEARINGS ON S. 2487 WERE HELD IN THE SENATE.  ALTHOUGH MOST
OF THE WITNESSES AND STATEMENTS CONCERNED THEMSELVES SOLELY WITH URGING
EXPANDED JUDICIAL REVIEW FOR CONTRACTORS, WITHOUT ADVERTING TO SUCH
REVIEW FOR THE GOVERNMENT, THERE WERE NOTABLE EXCEPTIONS.  THE
ASSOCIATED GENERAL CONTRACTORS TOOK THE POSITION THAT JUDICIAL REVIEW
MUST BE AVAILABLE TO BOTH PARTIES, AS DID SEVERAL ATTORNEYS WHO
SPECIALIZED IN THE REPRESENTATION OF CONTRACTORS.  /13/  OPPONENTS OF
THAT VIEW PROPOSED BILLS THAT WOULD HAVE EXPRESSLY LIMITED THE RIGHT OF
JUDICIAL REVIEW TO CONTRACTORS.  /14/  THE COMPTROLLER GENERAL
SUBSEQUENTLY SUBMITTED ANOTHER REPORT OBJECTING TO THESE BILLS BECAUSE
THEIR ADOPTION WOULD DEPRIVE THE GOVERNMENT OF THE DEFENSE OF
ADMINISTRATIVE FINALITY WHILE PERMITTING CONTRACTORS "TO UTILIZE SUCH
DEFENSE SHOULD THE ACCOUNTING OFFICERS OF THE GOVERNMENT ATTEMPT TO
QUESTION THE VALIDITY OF A PAYMENT."  /15/  IT IS SIGNIFICANT THAT NO
ONE EVER SUGGESTED DURING THE SENATE HEARINGS THAT THE EXPANDED SCOPE
OF REVIEW PROVIDED IN S. 2487 AND GAO'S SUBSTITUTE BILL WAS TO BE
AVAILABLE ONLY FOR CONTRACTORS AND NOT ALSO FOR THE GOVERNMENT. 

AN AMENDED S. 2487 WAS REPORTED OUT OF COMMITTEE FOLLOWING THE
HEARINGS.  /16/  IT PROVIDED THAT NO DISPUTES CLAUSE 

"SHALL BE PLEADED AS LIMITING JUDICIAL REVIEW OF ANY (DISPUTES)
DECISION TO CASES IN WHICH FRAUD BY (THE GOVERNMENT) OFFICIAL . . . IS
ALLEGED."  THUS, AMENDED S. 2487, LIKE THE BILL IN ITS ORIGINAL FORM,
CONTAINED AN EXPLICIT REVERSAL OF THE WUNDERLICH STANDARD OF JUDICIAL
REVIEW.  LIKE THE ORIGINAL BILL, MOREOVER, AMENDED S. 2487 GAVE NOT THE
SLIGHTEST INDICATION THAT IT WAS A COMMAND SOLELY TO THE GOVERNMENT NOT
TO "PLEAD" THE DISPUTES CLAUSE AS LIMITING THE CONTRACTOR'S RIGHT TO
JUDICIAL REVIEW.  AMENDED S. 2487 PLAINLY DIRECTED THAT NO DISPUTES
CLAUSE COULD BE PLEADED TO LIMIT JUDICIAL REVIEW OF ANY DISPUTES
DECISIONS.  NEITHER PARTY, UNDER AMENDED S. 2487, COULD RELY UPON A
DISPUTES CLAUSE TO LIMIT THE OTHER PARTY'S RIGHT TO JUDICIAL REVIEW TO
INSTANCES OF FRAUDULENT DISPUTES DECISIONS. 

AMENDED S. 2487, HOWEVER, WENT BEYOND THE ORIGINAL BILL BY
INCORPORATING GAO'S SUBSTITUTE BILL: 

"(AND ANY SUCH PROVISION SHALL BE VOID WITH RESPECT TO ANY SUCH
DECISION WHICH THE GENERAL ACCOUNTING OFFICE OR A COURT, HAVING
JURISDICTION, FINDS FRAUDULENT, GROSSLY ERRONEOUS, SO MISTAKEN AS
NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY RELIABLE, PROBATIVE
AND SUBSTANTIAL EVIDENCE."  THUS, AMENDED S. 2487 REVERSED WUNDERLICH,
ADOPTED GAO'S DEFINITION OF THE EXPANDED SCOPE OF REVIEW, AND
AUTHORIZED GAO AS WELL AS THE COURTS TO APPLY THAT EXPANDED REVIEW AND
SET ASIDE ANY DISPUTES DECISIONS. 

THE COMMITTEE REPORT ON AMENDED S. 2487 EXPRESSLY NOTED "THAT TO THE
SAME EXTENT (THE WUNDERLICH) DECISION WOULD OPERATE TO THE DISADVANTAGE
OF THE GOVERNMENT IN THOSE CASES, AS SOMETIMES HAPPENS, WHEN THE
CONTRACTING OFFICER MAKES A DECISION DETRIMENTAL TO THE GOVERNMENT
INTEREST IN THE CLAIM."  /17/  THE REVERSAL OF WUNDERLICH, THEN, WAS
CLEARLY SEEN AS AN EXPANSION OF JUDICIAL REVIEW THAT WOULD APPLY NO
MATTER WHICH PARTY, THE GOVERNMENT OR THE CONTRACTOR, CHALLENGED THE
DISPUTES DECISION. 

THE REPORT THEN EXPLAINED THAT THE ADDITION OF GAO'S PROPOSAL MEANT
THAT AMENDED S. 2487 WOULD 

"HAVE THE EFFECT OF PERMITTING REVIEW IN THE GENERAL ACCOUNTING
OFFICE OR A COURT WITH RESPECT TO ANY DECISION OF A CONTRACTING OFFICER
OR A HEAD OF AN AGENCY WHICH IS FOUND TO BE FRAUDULENT, GROSSLY
ERRONEOUS, SO MISTAKEN AS NECESSARILY TO IMPLY BAD FAITH, OR NOT
SUPPORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE.  IN OTHER
WORDS, IN THOSE INSTANCES WHERE A CONTRACTING OFFICER HAS MADE A
MISTAKEN DECISION, EITHER WITTINGLY OR UNWITTINGLY, IT WILL NOT BE
NECESSARY FOR THE AGGRIEVED PARTY TO, IN EFFECT, CHARGE HIM WITH BEING
A FRAUD OR A CHEAT IN ORDER TO AFFECT ( ) COLLECTION OF WHAT IS
RIGHTFULLY DUE."  /18/ THUS, THE EXPANDED SCOPE OF REVIEW, EXPLICITLY
DEFINED, WOULD BE AVAILABLE TO BOTH PARTIES BEFORE EITHER GAO OR A
COURT.  IN SHORT, AMENDED S. 2487 EMPOWERED A COURT TO SET ASIDE A
DISPUTES DECISION AT THE BEHEST OF EITHER THE GOVERNMENT OR THE
CONTRACTOR, AND, LIKEWISE, IT EMPOWERED GAO TO SET ASIDE A DECISION
CHALLENGED BY EITHER PARTY.  ALTHOUGH THE REPORT ASSERTED THAT AMENDED
S. 2487 WAS INTENDED "SIMPLY TO RECOGNIZE THE JURISDICTION WHICH THE
GENERAL ACCOUNTING OFFICE ALREADY HAS,"  /19/  IN FACT AMENDED S. 2487
WOULD HAVE GIVEN GAO THE ENTIRELY NEW POWER TO MAKE A BINDING REVIEW OF
DISPUTES DECISIONS.  IT WOULD HAVE MADE GAO, AS WAS LATER CHARGED, INTO
A SECOND COURT OF CLAIMS. 

ALTHOUGH THE SENATE PASSED AMENDED S. 2487, THE 82D CONGRESS EXPIRED
WITHOUT HOUSE ACTION.  WHEN IT WAS REINTRODUCED IN THE SENATE OF THE
83D CONGRESS, /20/  SENATOR MCCARRAN, THE BILL'S SPONSOR, OBSERVED THAT
THE WUNDERLICH DECISION "CUTS TWO WAYS" AND, AS AN EXAMPLE, CITED A
CASE I HAVE ALREADY DISCUSSED, LEEDS & NORTHRUP CO. V. UNITED STATES,
101 F.SUPP.  999 (ED PA. 1951), IN WHICH "(THE COMPTROLLER GENERAL . .
. ATTEMPTED TO RECOVER ON BEHALF OF THE GOVERNMENT, BECAUSE THE MISTAKE
WAS AGAINST THE GOVERNMENT.  THE CONTRACTOR INTERPOSED A DEFENSE BASED
ON . . . THE WUNDERLICH CASE . . . . (THE RESULT WAS A FAILURE OF
RECOVERY ON BEHALF OF THE GOVERNMENT."  /21/  THUS, SENATOR MCCARRAN,
LIKE GAO, RECOGNIZED THAT THE NARROW REVIEW PERMISSIBLE UNDER
WUNDERLICH BOUND BOTH THE GOVERNMENT AND THE CONTRACTOR, AND, LIKE GAO,
HE CONSIDERED THAT REVERSAL OF WUNDERLICH WOULD ALSO APPLY EQUALLY TO
BOTH PARTIES.  A MONTH LATER DURING FLOOR DEBATE, SENATOR MCCARRAN
AGAIN EMPHASIZED THAT WHILE WUNDERLICH COULD "OPERATE GREATLY TO THE
DISADVANTAGE OF CONTRACTORS," IT COULD ALSO "OPERATE TO THE
DISADVANTAGE OF THE GOVERNMENT."  /22/  THE SENATE THEN PASSED THE
BILL, OBVIOUSLY WITH THE UNDERSTANDING THAT THE EXPANDED SCOPE OF
JUDICIAL REVIEW PROVIDED WOULD BE AVAILABLE TO BOTH THE GOVERNMENT AND
CONTRACTORS. 

AMENDED S. 2487 WAS ALSO INTRODUCED IN THE HOUSE OF THE 83D
CONGRESS.  /23/  AT THE INITIAL HOUSE HEARING IN JULY, 1953, SEVERAL
WITNESSES ASSERTED THAT ENACTMENT OF THE BILL WAS ESSENTIAL TO ENABLE
BOTH THE GOVERNMENT AND CONTRACTORS TO OBTAIN EFFECTIVE JUDICIAL REVIEW
OF DISPUTES DECISIONS.  /24/  OPPOSITION THEN DEVELOPED TO THE
PROVISION EMPOWERING GAO TO INVALIDATE SUCH DECISIONS.  THE OBJECTION
WAS, QUITE PREDICTABLY, THAT "(THE EFFECT OF THE PROVISION IS TO SET UP
THE GENERAL ACCOUNTING OFFICE AS A 'COURT OF CLAIMS.'  . . . (AN AGENCY
OF THE LEGISLATIVE BRANCH . . . SHOULD NOT BE USED TO PERFORM FUNCTIONS
INTENDED FOR THE JUDICIAL BRANCH."  /25/ 

UNDERSTANDING THE PRECISE NATURE OF THIS OBJECTION IS IMPORTANT.  NO
ONE SUGGESTED THAT AMENDED S. 2487 DID NOT GRANT THE GOVERNMENT THE
SAME SCOPE OF JUDICIAL REVIEW THAT IT GRANTED CONTRACTORS.  OBVIOUSLY,
SINCE AMENDED S. 2487 AUTHORIZED BOTH GAO AND THE COURTS TO EXERCISE
THE SAME REVIEW, AND SINCE THE OBJECTION WAS THAT GAO SHOULD NOT BE
ABLE TO SET ASIDE DISPUTES DECISIONS FAVORABLE TO CONTRACTORS, IT WOULD
HAVE BEEN ABSURD TO SUGGEST THAT AMENDED S. 2487 DID NOT LIKEWISE
AUTHORIZE THE COURTS TO SET ASIDE SUCH DECISIONS.  NOR DID ANY ONE
QUESTION THE ABILITY OF GAO TO OBTAIN JUDICIAL REVIEW FOR THE
GOVERNMENT THROUGH ITS POWER TO REFUSE TO APPROVE PAYMENT ON DISPUTES
DECISIONS.  ALL AGREED THAT THE PURPOSE OF THE PROPOSED LEGISLATION WAS
TO OVERTURN THE STANDARD OF REVIEW SET BY WUNDERLICH; THE NARROW SCOPE
OF JUDICIAL REVIEW PERMISSIBLE UNDER THAT CASE WAS TO BE DONE AWAY WITH
IN FAVOR OF A BROADER, SPECIFICALLY DEFINED REVIEW.  THE PURPOSE WAS TO
EXPAND JUDICIAL REVIEW, NOT TO INSERT FURTHER ADMINISTRATIVE REVIEW
INTO THE DISPUTES PROCESS.  THUS, THE OPPOSITION URGED, NOT
UNREASONABLY, THAT THE AVOWED PURPOSE OF OVERRULING WUNDERLICH WOULD
NOT BE SERVED BY EXPANDING GAO'S POWER TO TRANSFORM IT INTO ANOTHER
COURT.  HENCE, DELETION OF GAO FROM AMENDED S. 2487 WOULD LEAVE THE
POWER OF BINDING REVIEW EXCLUSIVELY WITH THE COURTS. 

THE COMPTROLLER GENERAL BOWED TO THIS OPPOSITION.  STATING,
(ERRONEOUSLY, I THINK) THAT GAO "HAS NOT ASKED FOR AUTHORITY WHICH IT
DID NOT HAVE BEFORE THE DECISION IN THE WUNDERLICH CASE," HE OFFERED
ANOTHER SUBSTITUTE BILL DELETING THE OBJECTIONABLE PROVISION.  HE
ASSERTED THAT "THIS SUBSTITUTE LANGUAGE WILL ACCOMPLISH WHAT WE HAVE
BEEN STRIVING FOR ALL ALONG AND WILL PLACE THE GENERAL ACCOUNTING
OFFICE IN PRECISELY THE SAME SITUATION IT WAS IN BEFORE" WUNDERLICH. 
/26/  THIS BILL, IN THE FORM SUBMITTED BY GAO WITH ONE MINOR ADDITION,
WAS ENACTED AS THE WUNDERLICH ACT. 

THUS, THE RESULT OF GAO'S ATTEMPT TO OBTAIN THE POWER OF BINDING
REVIEW OVER DISPUTES DECISIONS WAS FAILURE.  THAT POWER WAS LEFT WHERE
IT WAS BEFORE THE ACT, SOLELY WITH THE COURTS.  GAO SIMPLY RETAINED THE
POWER IT HAD ALWAYS HAD, THE POWER TO FORCE THE CONTRACTOR INTO COURT
WHERE THE GOVERNMENT WOULD GET JUDICIAL REVIEW OF THE DISPUTES DECISION
IN HIS FAVOR. 

THE HEARINGS RESUMED IN JANUARY 1954.  IN URGING PASSAGE OF GAO'S
REVISED SUBSTITUTE BILL, GAO'S GENERAL COUNSEL STATED THAT, DESPITE
DELETION OF THE PROVISION FOR BINDING GAO REVIEW, THE BILL WOULD NOT
ONLY PROTECT CONTRACTORS BUT WOULD ALSO PROTECT THE GOVERNMENT "AGAINST
DECISIONS ADVERSE TO THE INTERESTS OF THE UNITED STATES.  CERTAINLY THE
RIGHTS OF CONTRACTORS) AND THE GOVERNMENT TO REVIEW OR APPEAL SHOULD BE
COEXTENSIVE."  /27/  SIMILARLY, THE ASSOCIATE GENERAL COUNSEL OF THE
GENERAL SERVICES ADMINISTRATION ASSERTED THAT GAO'S REVISED SUBSTITUTE
BILL WAS ADEQUATE TO "INSURE AN OPPORTUNITY TO PROTECT THE GOVERNMENT
AGAINST EXCESSIVE GENEROSITY," SINCE GAO, UNDER THE BILL, "COULD SEEK A
COURT REVIEW BY A SET-OFF OR BY APPLYING TO THE DEPARTMENT OF JUSTICE
FOR RECOVERY IN A CASE WHERE THEY FELT THAT THE ACTION OF THE
CONTRACTING OFFICER WAS GROSSLY ERRONEOUS AS AGAINST THE GOVERNMENT." 
/28/ 

MANY WITNESSES WHO OPPOSED GAO'S ORIGINAL SUBSTITUTE BILL, AND THUS
OPPOSED AMENDED S. 2487, NOW SUPPORTED GAO'S REVISED SUBSTITUTE BILL
BECAUSE IT MADE CLEAR THAT THE POWER TO SET ASIDE DISPUTES DECISIONS
WAS VESTED EXCLUSIVELY IN THE COURTS AND NOT SHARED BY THE COURTS WITH
GAO.  THERE WAS NO SUGGESTION FROM ANYONE THAT DELETION OF GAO FROM
AMENDED S. 2487 ALSO HAD THE EFFECT OF PRECLUDING THE GOVERNMENT FROM
OBTAINING JUDICIAL REVIEW UNDER THE STANDARDS AVAILABLE TO
CONTRACTORS.  ANY SUCH SUGGESTION WOULD HAVE BEEN ABSURD, FOR, AS NOTED
ABOVE, AMENDED S. 2487 GRANTED THE COURTS AND GAO EXACTLY THE SAME
POWER.  IN FACT, AT ONE POINT IN THE HEARINGS, A WITNESS OBJECTED THAT
GAO'S REVISED SUBSTITUTE BILL DID "NOT SAY SPECIFICALLY THAT AN APPEAL
CAN BE TAKEN BY AN AGGRIEVED CONTRACTOR."  THE ENSUING COLLOQUY WITH
COMMITTEE MEMBERS MADE PLAIN THAT THE LANGUAGE OF THE BILL "NECESSARILY
INCLUDEDD) BOTH PARTIES."  /29/  MOREOVER, AS IN THE CASE OF THE SENATE
COMMITTEE, THE HOUSE COMMITTEE WAS PRESENTED WITH A PROPOSED BILL THAT
WOULD HAVE EXPRESSLY LIMITED THE RIGHT OF JUDICIAL REVIEW TO
CONTRACTORS.  /30/  AS WITH THE SENATE, THAT SUGGESTION WAS NOT
ADOPTED.  INSTEAD, THE COMMITTEE REPORTED OUT THE BILL, SUBMITTED BY
GAO, THAT IS NOW THE WUNDERLICH ACT. 

THE ACT EXPANDED THE SCOPE OF JUDICIAL REVIEW, AND THAT WAS ALL IT
DID.  THE COMMITTEE REPORT MADE THAT PLAIN.  "THE COMMITTEE FORESEES NO
POSSIBILITY OF THE PROPOSED LEGISLATION CREATING ANY NEW RIGHTS THAT A
CONTRACTOR MAY NOT HAVE HAD PRIOR TO ITS ENACTMENT, WITH THE EXCEPTION
OF THE STANDARDS OF REVIEW THEREIN PRESCRIBED."  /31/  NOR DID THE ACT
GRANT GAO NEW POWER, FOR, AS THE REPORT SAID, "THERE IS NO INTENTION OF
SETTING UP THE GENERAL ACCOUNTING OFFICE AS A 'COURT OF CLAIMS.'"  ON
THE OTHER HAND, THE ACT DID NOT DIMINISH GAO'S EXISTING AUTHORITY TO
HOLD UP PAYMENT AND FORCE THE CONTRACTOR TO BRING SUIT, AS THE REPORT
ALSO STRESSED.  "THE ELIMINATION OF THE SPECIFIC MENTION OF THE GENERAL
ACCOUNTING OFFICE FROM THE PROVISIONS OF THE BILL AS AMENDED SHOULD NOT
BE CONSTRUED AS TAKING AWAY ANY OF THE JURISDICTION OF THAT OFFICE." 
/32/  THUS GAO AUTHORITY WAS LEFT EXACTLY WHERE IT WAS. 

A POINT I HAVE ALREADY MADE ABOUT DELETION OF THE REFERENCE TO GAO
BEARS REPEATING.  AMENDED S. 2487, BY INCORPORATING GAO'S ORIGINAL
SUBSTITUTE BILL, GRANTED GAO PRECISELY THE SAME BINDING POWER OF REVIEW
THAT IT GRANTED THE COURTS.  CONTRACTORS DID NOT OBJECT TO THAT
PROVISION BECAUSE IT AUTHORIZED GAO TO SET ASIDE DISPUTES DECISIONS
UNFAVORABLE TO CONTRACTORS.  THEY OBJECTED BECAUSE AMENDED S. 2487
AUTHORIZED GAO TO SET ASIDE DISPUTES FAVORABLE TO CONTRACTORS.  THAT
POWER, OPPONENTS OF AMENDED S. 2487 URGED, MUST BE VESTED SOLELY IN THE
COURTS.  THEY PREVAILED, AND THE REFERENCE TO GAO WAS DELETED. 
DELETION OF THE AUTHORITY GRANTED TO GAO OBVIOUSLY COULD HAVE NO EFFECT
WHATEVER ON THE IDENTICAL AUTHORITY GRANTED TO THE COURTS.  /33/ 

THE SENATE ORIGINALLY PASSED AMENDED S. 2487 UPON THE CLEAR
UNDERSTANDING THAT THE EXPANDED SCOPE OF JUDICIAL REVIEW IT CONTAINED
WOULD BE AVAILABLE TO BOTH THE GOVERNMENT AND CONTRACTORS.  WHEN THE
HOUSE BILL CAME TO THE SENATE AFTER DELETION OF THE GAO PROVISION,
SENATOR MCCARRAN, WHO HAD PREVIOUSLY STRESSED THE WUNDERLICH HURT BOTH
THE GOVERNMENT AND CONTRACTORS, EXPLAINED THAT WHILE THE HOUSE BILL
DIFFERED FROM THE BILL PASSED BY THE SENATE, SINCE IT DELETED THE
AUTHORITY TO GAO IT WAS "DESIGNED TO ACCOMPLISH THE SAME PURPOSE." 
/34/  THAT PURPOSE, OF COURSE, WAS TO OVERTURN WUNDERLICH AND TO
PROVIDE THE COURTS WITH GROUNDS OF REVIEW IN ADDITION TO FRAUD.  THE
TWO BILLS COULD NOT, OF COURSE, "ACCOMPLISH THE SAME PURPOSE" IF THE
HOUSE BILL AUTHORIZED EXPANDED JUDICIAL REVIEW ONLY FOR CONTRACTORS,
LEAVING THE GOVERNMENT EITHER WITH THE WUNDERLICH STANDARD OR WITH NO
REVIEW AT ALL.  AFTER SENATOR MCCARRAN RESPONDED AFFIRMATIVELY TO THE
STATEMENT THAT THE DIFFERENCE WAS ONLY "A MODIFICATION OF THE LANGUAGE
IN THE SENATE BILL, AND THE TWO BILLS AGREE IN THEIR EFFECT,"  /35/
THE SENATE PASSED THE HOUSE BILL. 

THE TEXT OF THE ACT IS ITS OWN WITNESS TO THE CONGRESSIONAL
PURPOSE.  IT PROVIDES THAT NO CLAUSE IN A GOVERNMENT CONTRACT
PURPORTING TO MAKE FINAL AN ADMINISTRATIVE DETERMINATION OF A DISPUTE
ARISING UNDER THE CONTRACT "SHALL BE PLEADED IN ANY SUIT . . . AS
LIMITING JUDICIAL REVIEW."  THE PROVISO THEN DEFINES THE APPLICABLE
SCOPE OF REVIEW. 

IT IS IMPOSSIBLE TO READ THE PLAIN WORDS OF THIS STATUTE AS
DIRECTING THAT JUDICIAL REVIEW IS AVAILABLE ONLY FOR DISPUTES DECISIONS
UNFAVORABLE TO CONTRACTORS.  INDEED, THE LANGAUGE IS SO CLEAR THAT
THERE SHOULD BE NO NEED TO SEARCH THROUGH THE LEGISLATIVE HISTORY FOR A
CONTRARY MEANING.  /36/  THAT HISTORY, IN ANY EVENT, DEMONSTRATES THAT
THE ACT MEANS EXACTLY WHAT IT SAYS. 

TWO SIGNIFICANT CONSIDERATIONS BUTTRESS MY CONCLUSION THAT THE
COURT'S CONSTRUCTION OF THE ACT IS PATENTLY AND GRIEVOUSLY ERRONEOUS. 

FIRST.  THE BILL THAT BECAME THE WUNDERLICH ACT WAS A GOVERNMENT
BILL.  AS THE COMMITTEE REPORT SAID, THE ACT, WITH A MINOR EXCEPTION,
"IS EXACTLY THE SAME LEGISLATION SUGGESTED BY THE COMPTROLLER
GENERAL."  /37/  GAO OFFERED IT AS A SUBSTITUTE FOR THE ORIGINAL S.
2487 BECAUSE OF GOVERNMENT CONCERN THAT ADMINISTRATIVE "OFFICIALS CAN
MAKE JUST AS ARBITRARY DETERMINATIONS IN FAVOR OF CONTRACTORS, AT THE
EXPENSE OF THE TAXPAYERS."  /38/  THE BILL EXPLICITLY STATED THAT THE
EXPANDED SCOPE OF REVIEW WOULD ADD TO "FRAUDULENT" THE GROUNDS THAT THE
DISPUTES DECISION WAS "ARBITRARY," "CAPRICIOUS," "GROSSLY ERRONEOUS,"
OR "NOT SUPPORTED BY SUBSTANTIAL EVIDENCE."  AFTER GAO MODIFIED THE
BILL TO DELETE THE PROVISION AUTHORIZING GAO REVIEW, IN ADDITION TO
COURT REVIEW, ON THOSE GROUNDS, GOVERNMENT PROCUREMENT AGENCIES JOINED
FORCES WITH GAO IN STRONG SUPPORT OF PASSAGE.  IT IS ABSURD TO SUPPOSE
THAT THE GOVERNMENT PRESSED FOR A BILL THAT GRANTED CONTRACTORS AN
EXPANDED SCOPE OF JUDICIAL REVIEW, INSERTED IN THE BILL BY THE
GOVERNMENT, YET DENIED THE GOVERNMENT JUDICIAL REVIEW ON THOSE SAME
GROUNDS. 

SECOND.  THAT ABSURDITY IS COMPOUNDED BY THE CONSEQUENCES THAT
RESULT FROM INTERPRETING THE ACT TO DENY THE GOVERNMENT JUDICIAL REVIEW
OF DISPUTES DECISIONS.  BEFORE WUNDERLICH, THE GOVERNMENT COULD
CHALLENGE THE FINALITY OF THOSE DECISIONS AT LEAST ON THE GROUND OF
FRAUD.  IF THE ACT AFFORDS ONLY CONTRACTORS JUDICIAL REVIEW AND DENIES
REVIEW TO THE GOVERNMENT, IT FOLLOWS THAT THE GOVERNMENT HAS BEEN
DEPRIVED EVEN OF THE RIGHT IT HAD UNDER WUNDERLICH TO CHALLENGE
"FRAUDULENT" DISPUTES DECISIONS.  THE PRINCIPAL GOVERNMENT PROCUREMENT
AGENCIES, NOW INCLUDING THE ATOMIC ENERGY COMMISSION, HAVE CREATED
CONTRACT APPEALS BOARDS AS THE FINAL LEVEL OF AGENCY REVIEW OF DISPUTES
DECISIONS.  BECAUSE THE ACT EXPRESSLY PROVIDES FOR JUDICIAL REVIEW OF
SUCH "BOARD" DECISIONS, INTERPRETING IT TO DENY THE GOVERNMENT REVIEW
MEANS THAT HOWEVER "ARBITRARY," HOWEVER "CAPRICIOUS," HOWEVER "GROSSLY
ERRONEOUS," HOWEVER CLEARLY "NOT SUPPORTED BY SUBSTANTIAL EVIDENCE" THE
BOARD'S DETERMINATION, THE PROCUREMENT AGENCY AND THE GOVERNMENT ITSELF
ARE HELPLESS TO REDRESS THE WRONG.  IN THIS CASE, THAT MIGHT MEAN THE
LOSS OF MORE THAN ONE MILLION DOLLARS TO AMERICAN TAXPAYERS.  BUT AT
STAKE ARE COUNTLESS MILLIONS.  TO SAY THAT GOVERNMENT WROTE AND SECURED
PASSAGE OF A BILL TO WORK THAT RESULT IS PREPOSTEROUS.  /39/

        III 

SO FAR AS I CAN PENETRATE THE COURT'S OPINION, ITS PRIMARY PREMISE
IS EXPOSED BY SUCH SENTENCES AS THESE:  "THE PURPOSE OF AVOIDING
'VEXATIOUS LITIGATION' WOULD NOT BE SERVED, HOWEVER, BY SUBSTITUTING
THE ACTION OF OFFICIALS ACTING IN DEROGATION OF THE CONTRACT."  ANTE,
AT 8.  /40/ "NEITHER THE WUNDERLICH ACT NOR THE DISPUTES CLAUSE
EMPOWERS ANY OTHER ADMINISTRATIVE AGENCY TO HAVE A VETO OF AEC'S
'FINAL' DECISION OR AUTHORITY TO REVIEW IT."  ID., AT 9.  "IN OTHER
WORDS, WE CANNOT INFER THAT BY SOME LEGERDEMAIN THE DISPUTES CLAUSE
SUBMITTED THE DISPUTE TO FURTHER ADMINISTRATIVE CHALLENGE OR APPROVAL. 
. . . "  IBID.  "HERE, THE AEC SPOKE FOR THE UNITED STATES AND ITS
DECISION, ABSENT FRAUD OR BAD FAITH, SHOULD BE HONORED."  ID., AT 10. 
/41/  "SINCE THE AEC WITHHELD PAYMENT SOLELY BECAUSE OF THE VIEWS OF
THE COMPTROLLER GENERAL AND SINCE HE HAD BEEN GIVEN NO AUTHORITY TO
FUNCTION AS ANOTHER TIER OF ADMINISTRATIVE REVIEW, THERE WAS NO VALID
REASON FOR AEC NOT TO SETTLE WITH PETITIONER ACCORDING TO ITS EARLIER
DECISION."  IBID.  /42/  "THAT ACTION BY THE COMPTROLLER GENERAL WAS A
FORM OF ADDITIONAL ADMINISTRATIVE OVERSIGHT FORECLOSED BY THE DISPUTES
CLAUSE."  ID., AT 12.  "(THE ACT) SHOULD NOT BE CONSTRUED TO REQUIRE A
CITIZEN TO PERFORM THE HERCULEAN TASK OF BEHEADING THE HYDRA IN ORDER
TO OBTAIN JUSTICE FROM HIS GOVERNMENT."  ID., AT 14.  "WE ARE RELUCTANT
TO CONSTRUE A STATUTE ENACTED TO FREE CITIZENS FROM A FORM OF
ADMINISTRATIVE TYRANNY SO AS TO SUBJECT THEM TO ADDITIONAL BUREAUCRATIC
OVERSIGHT, WHERE THERE IS NO EVIDENCE OF FRAUD OR OVERREACHING."  ID.,
AT 14.  /43/  "THIS OBJECTIVE (PREVENTING THE INFLATING OF BIDS) WOULD
BE ILL SERVED IF GOVERNMENT CONTRACTORS-- HAVING WON A FAVORABLE
DECISION BEFORE THE AGENCIES WITH WHOM THEY CONTRACTED-- HAD ALSO TO
RUN THE GANTLET OF THE GENERAL ACCOUNTING OFFICE AND THE DEPARTMENT OF
JUSTICE."  ID., AT 14-15. 

THE COURT'S BETE NOIRE, THEN, IS PRIMARILY THE GENERAL ACCOUNTING
OFFICE, WITH A SIDESWIPE AT THE DEPARTMENT OF JUSTICE.  WE ARE LEFT TO
INFER, I GATHER, THAT CONGRESS SHARED THE COURT'S DISTASTE FOR THE
ACTIVITIES OF THOSE AGENCIES IN THESE CASES AND ENACTED THE WUNDERLICH
ACT, NOT ONLY TO ARM CONTRACTORS WITH EXPANDED GROUNDS OF JUDICIAL
REVIEW OF DISPUTES DECISIONS FAVORABLE TO THE GOVERNMENT, BUT ALSO, BY
THE DEVICE OF DENYING JUDICIAL REVIEW TO THE GOVERNMENT, TO ABOLISH THE
AUTHORITY OF GAO TO DISAPPROVE PAYMENTS TO CONTRACTORS UNDER DISPUTES
DECISIONS, THUS FORCING CONTRACTORS TO SUE, AND, BY THAT DEVICE, TO
RELIEVE THE DEPARTMENT OF JUSTICE OF ANY SUITS TO DEFEND ON BEHALF OF
THE UNITED STATES.  THERE ARE THREE DISPOSITIVE ANSWERS TO THE COURT'S
SUPPOSITION. 

FIRST.  THE NOTION THAT CONGRESS ENACTED THE WUNDERLICH ACT TO
ABOLISH THE AUTHORITY OF GAO AND THE DEPARTMENT OF JUSTICE IS
COMPLETELY A FIGMENT OF THE COURT'S OWN IMAGINATION.  AS THE JUDICIAL
HISTORY SHOWS, BOTH AGENCIES HAVE EXERCISED FOR DECADES POWERS
IDENTICAL TO THOSE EXERCISED IN THIS CASE, WITH NO PRIOR COMPLAINTS
THAT I CAN DISCOVER AND WITH COMPLETE CONGRESSIONAL APPROVAL.  I NEED
ONLY QUOTE FROM THE COMMITTEE REPORT THAT ACCOMPANIED THE BILL THAT IS
NOW THE WUNDERLICH ACT. 

     "THE PROPOSED LEGISLATION, AS AMENDED, WILL NOT ADD TO,
NARROW,

  RESTRICT, OR CHANGE IN ANY WAY THE PRESENT JURISDICTION OF THE

  GENERAL ACCOUNTING OFFICE EITHER IN THE COURSE OF A SETTLEMENT OR

  UPON AUDIT, AND THE LANGUAGE USED IS NOT INTENDED EITHER TO

  CHANGE THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE OR TO

  GRANT ANY NEW JURISDICTION, BUT SIMPLY TO RECOGNIZE THE

  JURISDICTION WHICH THE GENERAL ACCOUNTING OFFICE ALREADY HAS. 

     "THE ELIMINATION OF THE SPECIFIC MENTION OF THE GENERAL

  ACCOUNTING OFFICE FROM THE PROVISIONS OF THE BILL AS AMENDED

  SHOULD NOT BE CONSTRUED AS TAKING AWAY ANY OF THE JURISDICTION OF

  THAT OFFICE.  IT IS INTENDED THAT THE GENERAL ACCOUNTING OFFICE,

  AS WAS ITS PRACTICE, IN REVIEWING A CONTRACT AND CHANGE ORDERS

  FOR THE PURPOSE OF PAYMENT, SHALL APPLY THE STANDARDS OF REVIEW

  THAT ARE GRANTED TO THE COURTS UNDER THIS BILL.  AT THE SAME TIME

  THERE IS NO INTENTION OF SETTING UP THE GENERAL ACCOUNTING OFFICE

  AS A 'COURT OF CLAIMS.'  NOR SHOULD THE ELIMINATION OF THE

  SPECIFIC MENTION OF THE GENERAL ACCOUNTING OFFICE IN THE BILL BE

  CONSTRUED AS LIMITING ITS REVIEW TO THE FRAUDULENT INTENT

  STANDARD PRESCRIBED BY THE WUNDERLICH DECISION. 

     "THE SPECIFIC INTENT OF THIS LEGISLATION, INSOFAR AS IT
AFFECTS

  THE GENERAL ACCOUNTING OFFICE, IS EXPLICITLY STATED IN THE LETTER

  . . . FROM THE COMPTROLLER GENERAL HIMSELF.  . . . "

THE REPORT THEN QUOTED FROM THE COMPTROLLER GENERAL'S LETTER, IN WHICH
HE SAID THAT GAO "HAS NOT ASKED FOR AUTHORITY WHICH IT DID NOT HAVE
BEFORE THE DECISION IN THE WUNDERLICH CASE," AND IN WHICH HE QUOTED
FROM THE SENATE COMMITTEE'S REPORT ON AMENDED S. 2487: 

"IT IS NOT INTENDED TO NARROW OR RESTRICT OR CHANGE IN ANY WAY THE
PRESENT JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, EITHER IN THE
COURSE OF A SETTLEMENT OR UPON AUDIT; (IT) IS NOT INTENDED EITHER TO
CHANGE THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE OR TO GRANT
ANY NEW JURISDICTION, BUT SIMPLY TO RECOGNIZE THE JURISDICTION WHICH
THE GENERAL ACCOUNTING OFFICE ALREADY HAS."  /44/ 

SECOND.  THE CASE LAW DETAILED EARLIER IN THIS OPINION, INCLUDING
EATON, BROWN & SIMPSON, INC. V. UNITED STATES, 62 CT.CL. 668 (1926), IN
WHICH GAO DISAGREED WITH A DISPUTES DECISION IN FAVOR OF THE GOVERNMENT
AND PAID THE CONTRACTOR, ESTABLISHES WITHOUT QUESTION THAT GAO HAS NO
POWER TO OVERTURN A DISPUTES DECISION.  THE LIMIT OF ITS AUTHORITY IS
TO REFUSE TO SANCTION PAYMENT TO THE CONTRACTOR AND THUS FORCE HIM TO
BRING SUIT.  THE JUDICIAL PRECEDENTS IN THIS COURT, THE COURT OF
CLAIMS, AND THE DISTRICT COURTS ARE EXPLICIT THAT ONLY A COURT CAN
DETERMINE THE MERITS OF THE DISPUTE WITHIN THE GROUNDS OF REVIEW
SPECIFIED BY THE WUNDERLICH ACT.  IT IS THEREFORE COMPLETELY IRRELEVANT
THAT "THE AEC WITHHELD PAYMENT SOLELY BECAUSE OF THE VIEWS OF THE
COMPTROLLER GENERAL."  ANTE, AT 10.  INDEED, THE COURT EXPOSES THE
FALLACY OF ITS OWN POSITION WHEN IT STATES THAT "THE DISPUTES CLAUSE IN
THE CONTRACT SAYS THAT THE DECISION OF THE AEC IS 'FINAL AND
CONCLUSIVE,' UNLESS A COURT DETERMINES THAT THE AWARD IS VULNERABLE
UNDER SECS. 1 AND 2 OF THE ACT."  ID., AT 3-4.  SEE ALSO ID., AT 9:
"BY THE DISPUTES CLAUSE THE DECISION OF AEC IS 'FINAL AND CONCLUSIVE'
UNLESS 'A COURT OF COMPETENT JURISDICTION DECIDES OTHERWISE FOR THE
ENUMERATED REASONS." 

THIRD.  SIMILARLY, THE COURT STATES, IN RESPONSE TO THE GOVERNMENT'S
NONEXISTENT CONTENTION THAT THE DEPARTMENT OF JUSTICE HAS "THE POWER TO
OVERTURN DECISIONS OF COORDINATE OFFICES OF THE EXECUTIVE DEPARTMENT,"
ID., AT 12, "THAT POWER (OF THE DEPARTMENT OF JUSTICE TO DEFEND SUITS
AGAINST THE UNITED STATES) IS PERVASIVE BUT IT DOES NOT APPEAR HOW
UNDER THE WUNDERLICH ACT IT GIVES THE DEPARTMENT OF JUSTICE THE RIGHT
TO APPEAL FROM A DECISION OF THE ATOMIC ENERGY COMMISSION," ID., AT 12
13.  SEE ALSO ID., AT 13:  "THE POWER TO APPEAL TO THE COURT OF CLAIMS
A DECISION OF THE FEDERAL AGENCY UNDER A DISPUTES CLAUSE IN A CONTRACT
WHICH THE AGENCY IS AUTHORIZED TO MAKE IS NOT TO BE FOUND IN THE
WUNDERLICH ACT AND ITS UNDERLYING LEGISLATIVE HISTORY."  NO ONE
SUGGESTS THAT THE DEPARTMENT OF JUSTICE HAS A "RIGHT TO APPEAL."  IT IS
INVOLVED IN THIS CASE ONLY BECAUSE GAO'S REFUSAL TO SANCTION PAYMENT
FORCED PETITIONER TO SUE THE UNITED STATES, THUS CREATING A LAWSUIT
THAT THE DEPARTMENT OF JUSTICE, AS THE GOVERNMENT'S LAWYER, HAD A DUTY
TO DEFEND.  IT WOULD BE STRANGE IF THE DEPARTMENT HAD A DUTY TO CONFESS
JUDGMENT. 

IN SUPPORT OF ITS CONSTRUCTION OF THE ACT, THE COURT MAKES A
STATEMENT WHICH I HAVE ALREADY QUOTED, THAT INVITES A FURTHER COMMENT: 

"(JUDICIAL REVIEW WAS PROVIDED SO THAT CONTRACTORS WOULD NOT INFLATE
THEIR BIDS TO TAKE INTO ACCOUNT THE UNCERTAINTIES OF ADMINISTRATIVE
ACTION.  THIS OBJECTIVE WOULD BE ILL SERVED IF GOVERNMENT CONTRACTORS--
HAVING WON A FAVORABLE DECISION BEFORE THE AGENCIES WITH WHOM THEY
CONTRACTED-- HAD ALSO TO RUN THE GANTLET OF THE GENERAL ACCOUNTING
OFFICE AND THE DEPARTMENT OF JUSTICE."  ID., AT 14-15. 

CONTRACTOR WITNESSES AT THE COMMITTEE HEARINGS ASSERTED THAT
CONTRACTORS WOULD HAVE TO INFLATE THEIR BIDS IF THEY COULD ATTACK A
DISPUTES DECISION ONLY ON THE GROUND THAT IT WAS FRAUDULENT.  AS THE
COURT SAYS, THE ACT RESOLVED THIS PROBLEM BY EXPANDING THE SCOPE OF
JUDICIAL REVIEW, SO THAT CONTRACTORS CAN ATTACK A DISPUTES DECISION ON
GROUNDS IN ADDITION TO FRAUD.  THAT WAS THE PROTECTION CONGRESS GAVE
CONTRACTORS SO THAT THEY WOULD NOT HAVE TO INFLATE THEIR BIDS. 

AFTER RECOGNIZING THIS, THE COURT SAYS THAT BECAUSE CONTRACTORS GOT
EXPANDED JUDICIAL REVIEW TO PREVENT THE NECESSITY OF INFLATING BIDS,
THEY ALSO GOT THE BENEFIT OF NOT HAVING DECISIONS IN THEIR FAVOR
SUBJECT TO JUDICIAL REVIEW AT ALL, SINCE OTHERWISE THE OBJECTIVE OF
PREVENTING INFLATED BIDS "WOULD BE ILL-SERVED."  IT WOULD BE DIFFICULT
TO IMAGINE A MORE OBVIOUS NON SEQUITUR.  THE COURT COULD AS EASILY SAY
THAT "(THIS OBJECTIVE WOULD BE ILL SERVED" IF THE CONTRACTORS EVER LOST
A DISPUTES DECISION. 

I MIGHT ADD THAT THE COURT DOES NOT SAY THAT THE "OBJECTIVE WOULD BE
ILL SERVED" IF FAVORABLE CONTRACTOR DECISIONS WERE SUBJECT TO JUDICIAL
REVIEW; IT SAYS THAT THE "OBJECTIVE WOULD BE ILL SERVED" IF CONTRACTORS
HAD ALSO TO RUN THE GANTLET OF THE GENERAL ACCOUNTING OFFICE AND THE
DEPARTMENT OF JUSTICE.  YET WHAT THE COURT MEANS, OF COURSE, IS
JUDICIAL REVIEW, FOR NEITHER GAO NOR THE DEPARTMENT OF JUSTICE CAN TAKE
A FAVORABLE DECISION AWAY FROM A CONTRACTOR.  ONLY A COURT CAN DO
THAT.     THE COURT IS FORCED TO GO TO EXTREME LENGTHS TO ASSERT THAT
THE GOVERNMENT STILL MAY HAVE RELIEF FOR FRAUD.  THAT IS BECAUSE THE
COURT CONCEDES, AS IT MUST, THAT ITS CONSTRUCTION OF THE ACT DENYING
THE GOVERNMENT JUDICIAL REVIEW FORECLOSES REVIEW OF DISPUTES DECISIONS
THAT ARE "FRAUDULENT," JUST AS IT FORECLOSES JUDICIAL REVIEW OF
DECISIONS THAT ARE "ARBITRARY," "CAPRICIOUS," "GROSSLY ERRONEOUS," OR
"NOT SUPPORTED BY SUBSTANTIAL EVIDENCE."  THE COURT'S ATTEMPTED ESCAPE
IS TO SUGGEST THAT THE GOVERNMENT MAY HAVE RELIEF FOR FRAUD UNDER THE
STATUTES IN WHICH "CONGRESS HAS MADE ELABORATE PROVISIONS FOR DEALING
WITH FRAUDULENT CLAIMS OF CONTRACTORS."  ID., AT 16.  APART FROM THE
ABSENCE OF ANY EXPLANATION WHY, IF STATUTORY REMEDIES WERE ALWAYS
AVAILABLE, THIS COURT FOUND IT NECESSARY TO FASHION, FOR GOVERNMENT AND
CONTRACTOR ALIKE, A JUDICIAL EXCEPTION TO THE FINALITY OF DISPUTES
DECISIONS, THE POINT IS FRIVOLOUS.  /45/  OBVIOUSLY THE FRAUD STATUTES
THE COURT MENTIONS HAVE NO APPLICATION WHATEVER TO THE FRAUD WE ARE
DISCUSSING IN THIS CASE. 

THE "FRAUD" THAT IS AN ISSUE IN A DISPUTES CLAUSE CASE IS NOT
CONTRACTOR FRAUD.  NOT ONE CASE CONSTRUING A DISPUTES CLAUSE, FROM 1878
TO THE PRESENT DAY, EVER MENTIONS "FRAUD" BY THE CONTRACTOR.  NOR HAS
ANYONE EVER SUGGESTED THAT THE GOVERNMENT NEEDS JUDICIAL REVIEW OF
DISPUTES DECISIONS TO GUARD AGAINST FRAUD BY THE CONTRACTOR.  THE
"FRAUD" THAT IS INVOLVED IS A FRAUDULENT DECISION.  THE DISPUTES CLAUSE
AND THE ACT ITSELF PROVIDE JUDICIAL REVIEW TO DETERMINE WHETHER THE
"DECISION . . . IS FRAUDULENT."  WHEN A DISPUTES DECISION IS
CHALLENGED, THE ONLY QUESTIONS CONCERN THAT DECISION:  WAS IT
"FRAUDULENT"?  WAS IT "CAPRICIOUS"?  WAS IT "ARBITRARY"?  WAS IT
"GROSSLY ERRONEOUS"?  WAS IT "NOT SUPPORTED BY SUBSTANTIAL EVIDENCE"? 
/46/  THE COURT IS ABSOLUTELY RIGHT THAT "(A) CONTRACTOR'S FRAUD IS OF
COURSE A WHOLLY DIFFERENT GENUS THAN THE CASE NOW BEFORE US."  ID., AT
15. 

IV 

THE TIME-TESTED STANDARDS OF STATUTORY CONSTRUCTION REQUIRE
INTERPRETATION OF THE STATUTORY WORDING TO EFFECT THE CONGRESSIONAL
PURPOSE AS REVEALED BY LEGISLATIVE HISTORY.  THE COURT TOTALLY DISCARDS
THOSE STANDARDS IN CONSTRUING THE WUNDERLICH ACT.  INSTEAD, THE COURT
PURPORTS TO DISCOVER A NONEXISTENT HOSTILITY OF CONGRESS TOWARD THE
"INTERMEDDLING," ID., AT 19, OF GAO AND THE DEPARTMENT OF JUSTICE IN
THE DISPUTES PROCESS AND FOR THAT REASON A CONGRESSIONAL PURPOSE TO
PREVENT THE SUBJECTION OF "CITIZENS . . . TO ADDITIONAL BUREAUCRATIC
OVERSIGHT," ID., AT 14.  THE VIRTUALLY CENTURY-LONG JUDICIAL HISTORY
THAT FORMS THE BACKGROUND OF THE ACT, IS EXPLICIT LANGUAGE, AND ITS
CLEAR LEGISLATIVE HISTORY COMPLETELY REFUTE THE PROPOSITION.  I DISSENT
AND WOULD AFFIRM THE JUDGMENT OF THE COURT OF CLAIMS. 

/1/  THE CONCURRING OPINION SEEMS TO READ THE JUDICIAL-REVIEW
PROVISION OUT OF THE DISPUTES CLAUSE:  "AND IF THE CONTRACTOR ACCEPTS A
DECISION OF THE CONTRACTING OFFICER, AND DOES NOT APPEAL TO THE
COMMISSION, THAT DECISION, BY THE SPECIFIC PROVISIONS OF THE DISPUTES
CLAUSE, IF FINAL AND CONCLUSIVE AS TO QUESTIONS OF FACT.  UNDER THE
GOVERNMENT'S POSITION, HOWEVER, THE DECISION AT THE AGENCY HEAD WOULD
ENJOY NO SUCH PREFERRED AND CONCLUSIVE STATUS."  ANTE, AT 21.  THE
COMMISSION'S DISPUTES DECISION DOES NOT HAVE "CONCLUSIVE STATUS" UNDER
THE DISPUTES CLAUSE, OF COURSE, BECAUSE OF A "SPECIFIC PROVISION" OF
THE CLAUSE.  THAT PROVISION DIRECTS THAT THE COMMISSION'S DECISION IS
"FINAL AND CONCLUSIVE UNLESS" A COURT DETERMINES THAT IT WAS
"FRAUDULENT," ETC.  IT DOES NOT DIRECT THAT THE COMMISSION'S DECISION
IS FINAL AND CONCLUSIVE UNLESS THE CONTRACTOR APPEALS TO THE COURTS. 
THAT IS THE LANGUAGE OF THE EARLIER PROVISION, REFERRED TO BY THE
CONCURRING OPINION, UNDER WHICH THE CONTRACTING OFFICER'S DECISION IS
FINAL AND CONCLUSIVE UNLESS THE CONTRACTOR APPEALS TO THE COMMISSION. 
IF "THE SPECIFIC PROVISIONS OF THE DISPUTES CLAUSE" APPLY AFTER THE
CONTRACTING OFFICER'S DECISION, SURELY THEY ALSO APPLY AFTER THE
COMMISSION'S DECISION. 

/2/  THE COURT'S OPENING SENTENCE APPEARS TO SAY THAT WE ARE DEALING
WITH A PRE-WUNDERLICH ACT DISPUTES CLAUSE THAT "PROVIDES THAT THE
DECISION OF AEC SHALL BE 'FINAL AND CONCLUSIVE.'"  ANTE, AT 2-3.  THE
COURT LATER RECOGNIZES THE OBVIOUS:  "BY THE DISPUTES CLAUSE THE
DECISION OF AEC IS 'FINAL AND CONCLUSIVE' UNLESS 'A COURT OF COMPETENT
JURISDICTION' DECIDES OTHERWISE FOR THE ENUMERATED REASONS."  ID., AT
9. 

/3/  IT WAS SUGGESTED AT ORAL ARGUMENT THAT THE PROCUREMENT AGENCY
MIGHT PAY THE CONTRACTOR IN ACCORDANCE WITH A DISPUTES DECISION IN HIS
FAVOR AND THAT SUBSEQUENTLY, PROMPTED BY GAO'S POST-AUDIT, THE
DEPARTMENT OF JUSTICE MIGHT SUE THE CONTRACTOR TO RECOUP THE PAYMENT ON
THE GROUND THAT THE AGENCY'S DECISION WAS IMPROPER UNDER THE DISPUTES
CLAUSE AND THE WUNDERLICH ACT.  THE COURT'S HOLDING TODAY, OF COURSE,
PROHIBITS THE GOVERNMENT FROM OBTAINING JUDICIAL REVIEW OF DISPUTES
DECISIONS BY THAT METHOD.  INDEED, THAT WOULD BE AN A FORTIORI CASE,
FOR THE AGENCY NOT ONLY WOULD HAVE DECIDED IN FAVOR OF THE CONTRACTOR,
BUT ALSO WOULD HAVE PAID HIM IN ACCORDANCE WITH ITS DECISION.  IF A
DISPUTES DECISION IS FINAL WHEN THE AGENCY REFUSES TO IMPLEMENT IT BY
PAYMENT, CERTAINLY IT IS FINAL WHEN THE AGENCY PAYS. 

/4/  THE COURT'S CONSTANT REPETITION OF THE PHRASE "FRAUD OR BAD
FAITH" MIGHT SUGGEST TO THE CASUAL READER THAT THE COURT IS HOLDING
THAT THE GOVERNMENT MAY CHALLENGE THE FINALITY OF DISPUTES DECISIONS ON
THOSE GROUNDS.  THAT, HOWEVER, IS NOT TRUE, FOR FRAUD AND BAD FAITH ARE
TWO OF THE GROUNDS SPECIFIED IN THE DISPUTES CLAUSE AND THE WUNDERLICH
ACT:  A DISPUTES DECISION MAY BE SET ASIDE IF IT IS "FRAUDULENT" OR IF
IT IS "SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH."  IN
CONTRAST TO THE DISPUTES DECISIONS RESULTING FROM THE FRAUD OR BAD
FAITH OF THE DISPUTES DECISIONMAKER.  RATHER THE COURT IS REFERRING TO
FRAUD OR BAD FAITH ON THE PART OF THE CONTRACTOR, AS THE COURT'S
STATEMENT OF FACTS MAKES CLEAR:  "THE DEFENSES TENDERED RAISED NO ISSUE
OF ANY FRAUD OR BAD FAITH OF THE CONTRACTOR AGAINST THE UNITED
STATES."  ANTE, AT 7.  "THE COMMISSIONER DID NOT BASE HIS OPINION ON
ANY ISSUE OF FRAUD OR BAD FAITH OF THE CONTRACTOR AGAINST THE UNITED
STATES, NOR DID THE COURT OF CLAIMS."  IBID.  SEE ALSO ID., AT 9-10, N.
8 AND PART IV OF THE COURT'S OPINION.  THE CONCURRING OPINION ALSO
REFERS TO "FRAUD"  AND "BAD FAITH."  ANTE, AT 19.  AGAIN, HOWEVER, THE
REFERENCE IS NOT TO FRAUD AND BAD FAITH AS USED IN THE DISPUTES CLAUSE
AND THE ACT. 

/5/  THE COURT'S CITATION OF MASON & HANGAR, ANTE, AT 10, IS TO SAY
THE LEAST, PERPLEXING. 

/6/  GOLTRA V. WEEKS, 271 U.S. 536 (1926), WHICH INVOLVED A
CONTRACTOR'S CHALLENGE TO THE FINALITY OF A DISPUTES DECISION BY A
GOVERNMENT OFFICIAL, ALSO DEMONSTRATES THAT THE RULE WAS THE SAME NO
MATTER WHICH PARTY CHALLENGED THE DECISION.  THE COURT THERE HELD THAT
THE OFFICIAL'S DECISION WAS BINDING "UNLESS THERE IS AN ABSENCE OF GOOD
FAITH IN THE EXERCISE OF THE JUDGMENT."  ID., AT 548.  SIGNIFICANTLY,
THE COURT CITED AS AUTHORITY, NOT ONLY KIHLBERG, SWEENEY, MARCH, AND
GLEASON, ALL CASES IN WHICH THE CONTRACTOR CHALLENGED AND THE
GOVERNMENT (IN MARCH, THE PARTY WHOSE OFFICIAL DECIDED THE DISPUTE)
RELIED UPON THE DISPUTES DECISION, BUT ALSO MASON & HANGAR, IN WHICH
THE GOVERNMENT CHALLENGED THE FINALITY OF A DISPUTES DECISION UPON
WHICH THE CONTRACTOR RELIED. 

/7/  THE COURT CITES MCSHAIN CO. FOR THE PROPOSITION THAT "(THE
CASES DENY REVIEW" BY GAO "ABSENT FRAUD OR OVERREACHING."  ANTE, AT
10.  SINCE MCSHAIN CO. IS SIMPLY ANOTHER EXAMPLE OF THE APPLICATION OF
THE KIHLBERG RULE AGAINST THE GOVERNMENT, I AM AT A LOSS TO UNDERSTAND
THE COURT'S STATEMENT.  AS THE EXCERPT I HAVE QUOTED IN THE TEXT
DEMONSTRATES, MCSHAIN CO. DID NOT "DENY REVIEW" BY GAO; RATHER, LIKE
THE OTHER CASES, IT HELD THAT GAO'S VIEW OF THE MERITS OF THE DISPUTES
DECISION WAS IRRELEVANT IN COURT AND THAT THE GOVERNMENT COULD UPSET
THE FINALITY OF THAT DECISION ONLY BY PROVING IN COURT THAT IT WAS
FRAUDULENT. 

/8/  THE COURT STATES, ANTE, AT 11, THAT THE DISTRICT COURT IN JAMES
GRAHAM, BY REFERRING TO "FRAUD OR OVERREACHING," REFERRED TO INSTANCES
"WHERE THE COMPTROLLER GENERAL'S POWER WAS FOUNDED UPON SPECIFIC
STATUTORY PROVISIONS SUCH AS 41 U.S.C. 53," A STATUTE RELATING TO
"KICKBACKS BY GOVERNMENT CONTRACTORS," ID., AT 9 N. 8.  IN FACT,
HOWEVER, THE DISTRICT COURT NOT ONLY DID NOT REFER TO THAT STATUTE, IT
DID NOT REFER TO ANY STATUTE, NOR EVEN INTIMATE THAT A STATUTE MIGHT BE
RELEVANT.  WHAT THE DISTRICT COURT DID WAS USE THE PHRASE "FRAUD OR
OVERREACHING" AS SHORTHAND FOR THE KIHLBERG RULE, THE JUDICIALLY
CREATED FRAUD EXCEPTION TO THE FINALITY OF DISPUTES DECISIONS.  THAT
USAGE IS READILY APPARENT FORM A GLANCE AT THE DISTRICT COURT'S
CITATIONS:  MASON & HANGER AND MOORMAN FROM THIS COURT, AND PENN
BRIDGE, CARROLL, AND MCSHAIN CO. FROM THE COURT OF CLAIMS. 

THE COURT ALSO SAYS, ID., AT 11, THAT IN JAMES GRAHAM "SUMMARY
JUDGMENT WAS ENTERED BY THE COURT, WHICH SAID, 'SINCE THE NAVY
DEPARTMENT HAS DETERMINED THAT PLAINTIFF CONTRACTOR IS ENTITLED TO THE
PAYMENT SOUGHT, THIS COURT MUST ADJUDGE ACCORDINGLY.'"  THE COURT OMITS
TO QUOTE THE IMMEDIATELY PRECEDING SENTENCE IN THE JAMES GRAHAM
OPINION:  "AND THE NAVY DEPARTMENT'S DECISION THAT THESE PARTICULAR
DUES AND CONTRIBUTIONS ARE REIMBURSABLE IS NOT ARBITRARY OR
UNCONSCIONABLE."  91 F.SUPP.,AT 717.  THUS, AGAIN, THE DISTRICT COURT
WAS REFERRING TO THE DISPUTES DECISION, AND NOT, AS THE COURT TODAY
WOULD HAVE IT, TO "FRAUD OR OVERREACHING" BY THE CONTRACTOR. 

/9/ THE CONCURRING OPINION ASSERTS THAT "(THE CONTRACTOR HERE,
ACCORDING TO THE LONG-TERM UNDERSTANDING OF THE DISPUTES CLAUSE,
CONSENTED TO THE DISPOSITION OF DISPUTES BY THE CONTRACTING OFFICER AND
BY THE AEC ON APPEAL, AND TO THE FINALITY OF DECISION AT THOSE
POINTS."  ANTE, AT 21.  IF THE CONCURRING OPINION IS SPEAKING OF PRE
WUNDERLICH ACT DISPUTES CLAUSES, THE AUTHORITIES I HAVE CITED ESTABLISH
THE UTTER INACCURACY OF THE ASSERTION.  INDEED, THE CONCURRING OPINION
ALSO ASSERTS THAT "FOR YEARS, WITH THE SPECIFIED EXCEPTIONS, (THE
DISPUTES) CLAUSE ITSELF HAS BEEN REGARDED AS CONFERRING NO RIGHT OF
JUDICIAL REVIEW ON THE PART OF THE GOVERNMENT."  ID., AT 20.  THE
ITALICIZED WORDS CAN ONLY REFER TO THE JUDICIALLY CREATED EXCEPTION FOR
FRAUDULENT DECISIONS.  THE CONCURRING OPINION GIVES NO INDICATION THAT,
IN EITHER OF THE ASSERTIONS, IT IS REFERRING TO THE CURRENT DISPUTES
CLAUSE. 

/10/  HEARINGS ON S. 2487 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 82D CONG., 2D SESS., 6. 

/11/  ID., AT 8. 

/12/  IT IS MISLEADING TO ASSERT, AS DOES THE COURT, THAT WUNDERLICH
"CLOSED THE COURTHOUSE DOORS TO CERTAIN CITIZENS."  ANTE, AT 14. 
SIMILARLY, THE CONCURRING OPINION ASSERTS THAT WUNDERLICH "RESTRICTED
CONTRACTOR-INSTIGATED JUDICIAL REVIEW" AND THAT THE GOVERNMENT
"PREVAILED" IN WUNDERLICH WITH "A NARROW JUDICIAL REVIEW STANDARD FOR
THE CONTRACTOR."  ANTE, AT 22.  THE CONCURRING OPINION'S ASSERTIONS ARE
THE MORE SURPRISING IN VIEW OF ITS APPARENT RECOGNITION THAT THE
GOVERNMENT WAS SUBJECT TO THE SAME STANDARD OF JUDICIAL REVIEW AS
CONTRACTORS.  SEE N. 9, SUPRA. 

/13/  HEARINGS ON S. 2487, SUPRA, N. 10, AT 29-32, 68, 83-84, 107,
114. 

/14/  ID., AT 59, 107.  MOREOVER, H.R. 6301, ALSO INTRODUCED IN THE
82D CONGRESS, PROVIDED FOR JUDICIAL REVIEW ONLY IN THOSE INSTANCES "IN
WHICH THE CONTRACTOR SHALL SEEK TO SET ASIDE A DECISION ON A DISPUTED
QUESTION BETWEEN THE UNITED STATES AND SUCH CONTRACTOR, MADE BY AN
OFFICER, BOARD, OR OTHER REPRESENTATIVE OF THE UNITED STATES.  . . . " 

/15/  HEARINGS ON S. 2487, SUPRA, N. 10, AT 119. 

/16/  SEE S.REP.  NO. 1670, 82D CONG., 2D SESS. 

/17/  ID., AT 2. 

/18/  IBID. 

/19/  ID., AT 3. 

/20/  AMENDED S. 2487 WAS REINTRODUCED AS S. 24, BUT FOR EASE OF
REFERENCE I WILL CONTINUE TO REFER TO IT AS AMENDED S. 2487. 

/21/  99 CONG. REC. 4573. 

/22/  99 CONG. REC. 6170. 

/23/  AMENDED S. 2487 WAS INTRODUCED AS H.R. 1839, BUT FOR EASE OF
REFERENCE I WILL CONTINUE TO REFER TO IT AS AMENDED S. 2487. 

/24/  HEARINGS ON H.R. 1839 ET AL. BEFORE SUBCOMMITTEE NO. 1 OF THE
HOUSE COMMITTEE ON THE JUDICIARY, 83D CONG., 1ST AND 2D SESS., SER. 
12, AT 3-20. 

/25/  ID., AT 26. 

/26/  ID., AT 136. 

/27/  ID., AT 39. 

/28/  ID., AT 59. 

/29/  ID., AT 110. 

/30/  ID., AT 89. 

/31/  H.R. REP. NO. 1380, 83D CONG., 2D SESS., 6. 

/32/  ID., AT 7. 

/33/  THE COURT'S ONLY FORAY INTO THE LEGISLATIVE HISTORY IS ITS
ASSERTION THAT "CONGRESS CONTEMPLATED GIVING THE GENERAL ACCOUNTING
OFFICE SUCH POWERS AND, INDEED, THE SENATE TWICE PASSED-- IN THE FORM
OF THE MCCARRAN BILL-- A PROVISION WHICH WOULD HAVE ALLOWED THE
COMPTROLLER TO REVIEW DISPUTES DECISIONS TO DETERMINE IF THEY"
SATISFIED THE STANDARDS OF THE ACT.  ANTE, AT 11.  THE COURT THEREFORE
CONCLUDES THAT THE ACT CANNOT BE CONSTRUED "TO GIVE THE COMPTROLLER
GENERAL POWERS WHICH CONGRESS HAS PLAINLY DENIED."  ID., AT 12. 
SIMILARLY, THE CONCURRING OPINION ASSERTS THAT "(THE FLAT REJECTION BY
CONGRESS OF THE PROPOSED PROVISION FOR GAO REVIEW IS SIGNIFICANT. 
THERE WOULD BE NO POINT IN THAT REJECTION IF GAO HAS THE POWER TO
DEFEAT THE FINALITY OF THE DISPUTES DECISION ANYWAY."  ANTE, AT 22-23. 
UNFORTUNATELY, THE COURT AND THE CONCURRING OPINION OVERLOOK THAT THE
PROPOSED PROVISION WAS NOT SIMPLY "FOR GAO REVIEW."  IT WAS FOR BINDING
GAO REVIEW.  BECAUSE IT WAS NOT ENACTED, GAO DOES NOT "HAVE A VETO OF
AEC'S 'FINAL' DECISION," ANTE, AT 9 (OPINION OF THE COURT); GAO DOES
NOT HAVE "POWER TO DEFEAT THE FINALITY OF THE DISPUTES DECISION," ANTE,
AT 23 (CONCURRING OPINION).  BOTH THE ACT AND THE DISPUTES CLAUSE
SPECIFICALLY PROVIDE THAT ONLY A COURT CAN SET ASIDE A DISPUTES
DECISION.  AND THAT IS PRECISELY THE POINT THE LEGISLATIVE HISTORY
MAKES CLEAR.    /34/  100 CONG. REC. 5717. 

/35/  100 CONG. REC. 5718. 

/36/  THE NEED ARISES IN THIS CASE ONLY BECAUSE PETITIONER ARGUES
THAT, DESPITE THE CLEAR LANGUAGE OF THE ACT, THE LEGISLATIVE HISTORY
REVEALS THAT CONGRESS MEANT TO RESERVE THE RIGHT OF JUDICIAL REVIEW
SOLELY TO CONTRACTORS.  IT IS THUS SOMEWHAT ODD THAT THE COURT
CONSIDERS IT WORTHWHILE TO ASSERT "THAT THE ACT'S LEGISLATIVE HISTORY
'HAS SOMETHING FOR EVERYONE'" AND THAT THE COURT "FINDS) THE ACTS
HISTORY AT BEST AMBIGUOUS."  ANTE, AT 13 N. 9.  THE CONCURRING OPINION
LIKEWISE PROFESSES TO FIND THE LEGISLATIVE HISTORY "DECIDEDLY AMBIGUOUS
AT BEST," ANTE, AT 22, YET NEVERTHELESS GOES ON TO ASSERT THAT CONGRESS
"INTENDED TO RELIEVE CONTRACTORS" AND "OPENED THE DOOR TO THE
CONTRACTOR," IBID.  THESE COMMENTS ARE ALL THE MORE INEXPLICABLE
BECAUSE NEITHER THE COURT NOR THE CONCURRING OPINION ATTEMPTS EVEN THE
MOST CURSORY ANALYSIS OF THE TEXT OF THE ACT ITSELF. 

/37/  H.R. REP. NO. 1380, SUPRA, N. 31, AT 6. 

/38/  SEE N. 10, SUPRA. 

/39/  THE CONCURRING OPINION ASSERTS THAT "(IN THE EXERCISE OF ITS
LEGISLATIVE JUDGMENT, CONGRESS HAS DETERMINED THAT IN THIS AREA THE
GOVERNMENT," UNLIKE CONTRACTORS, DOES NOT NEED THE ACT'S PROTECTION
"AGAINST FRAUD, CAPRICIOUSNESS, ARBITRARINESS, BAD FAITH, AND ABSENCE
OF EVIDENCE."  ANTE, AT 23.  AS THE CONCURRING OPINION NEVER REFERS TO
THE LANGUAGE OF THE ACT, AND FINDS THE LEGISLATIVE HISTORY "NOT AT ALL
THAT CLEAR," "DECIDEDLY AMBIGUOUS AT BEST," ID., AT 22, AND
"INCONCLUSIVE," ID., AT 23, IT IS DIFFICULT TO UNDERSTAND THE BASIS FOR
THIS STATEMENT. 

/40/  THIS STATEMENT, ALBEIT OBSCURELY, MAY MEAN THAT THE PURPOSE OF
AVOIDING LITIGATION WOULD NOT BE SERVED BY SUBJECTING A DISPUTES
DECISION IN FAVOR OF THE CONTRACTOR TO JUDICIAL REVIEW, FOR THAT WOULD
BE LITIGATION.  YET JUST AS OBVIOUSLY THE PURPOSE OF AVOIDING
LITIGATION WOULD NOT BE SERVED BY SUBJECTING A DISPUTES DECISION
AGAINST THE CONTRACTOR TO JUDICIAL REVIEW. 

/41/  SEE N. 4, SUPRA, N. 43, INFRA. 

/42/ THIS IS A DIFFICULT STATEMENT TO UNDERSTAND.  ASSUME THAT THE
COMMISSION HAD "NO VALID REASON" NOT TO PAY PETITIONER.  WAS IT IN
VIOLATION OF THE WUNDERLICH ACT?  THE COURT DOES NOT SAY.  IF
NONPAYMENT VIOLATED NEITHER THE CONTRACT NOR THE ACT, IT SEEMS RATHER
STRANGE THAT THIS COURT SHOULD ORDER THE COMMISSION TO PAY.  THE
COURT'S STATEMENT APPEARS TO BE CONNECTED WITH ITS LATER STATEMENT THAT
"(THE AEC HAS NOT, TO THIS DAY, REPUDIATED THE MERITS OF ITS DECISION
IN FAVOR OF PETITIONER."  ANTE, AT 19.  AGAIN, HOWEVER, THE COURT DOES
NOT SAY HOW OR EVEN WHETHER THE COMMISSION'S "NON-REPUDIATION" VIOLATED
THE CONTRACT OR THE ACT. 

IN THE SAME VEIN, THE CONCURRING OPINION ASSERTS THAT THERE IS "A
POSSIBLE BREACH OF CONTRACT" IN THIS CASE"  "WHEN THE UNITED STATES
THEN DISAVOWS THE COMMISSION'S DECISION-- A DECISION WHICH, AS THE
COURT NOTES, TO THIS DAY HAS NEVER BEEN WITHDRAWN OR REPUDIATED BY THE
AEC-- IT SEEMS TO ME THAT THE GOVERNMENT IMPOSES SOMETHING TO WHICH THE
CONTRACTOR HAS NOT AGREED."  ANTE, AT 21, 22.  THE CONCURRING OPINION,
HOWEVER, DOES NOT SAY HOW THE GOVERNMENT'S "DISAVOWAL" VIOLATED THE
CONTRACT. 

/43/  IF THIS STATEMENT IMPLIES THAT A CONTRACTOR IS "SUBJECT . . .
TO ADDITIONAL BUREAUCRATIC OVERSIGHT, WHERE THERE IS . . . EVIDENCE OF
FRAUD OR OVERREACHING", ONE MIGHT WELL ASK WHY THAT IS SO.  FRAUD IS
ONLY ONE OF THE FIVE GROUNDS OF JUDICIAL REVIEW SPECIFIED IN THE ACT
AND THE DISPUTES CLAUSE.  OBVIOUSLY EITHER ALL OR NONE ARE AVAILABLE. 
SEE N. 4, SUPRA. 

/44/  H.R. REP. NO. 1380, SUPRA, N. 31, AT 6-7.  THIS DETAILED
REFUTATION THAT GAO AUTHORITY WAS BEING CURTAILED WAS NECESSARY TO
ALLAY THE FEARS EXPRESSED BY THE ATTORNEY WHO ARGUED WUNDERLICH FOR THE
CONTRACTOR.  HE TESTIFIED DURING THE HOUSE HEARINGS THAT DELETION OF
GAO FROM AMENDED S. 2487, PASSED BY THE SENATE, MIGHT BE MISCONSTRUED
AS DEPRIVING GAO OF ITS PRIOR AUTHORITY TO REFUSE TO SANCTION PAYMENT
AND THEREBY "THROW THE MATTER INTO COURT."  SEE APPENDIX, INFRA, AT 78
80.  TODAY'S DECISION FULFILLS HIS PROPHECY. 

/45/  THE COURT ASSERTS THAT "(IF THE COMPTROLLER GENERAL HAS THE
BROAD, ROVING, INVESTIGATORY POWERS THAT ARE ASSERTED, SPECIFIC
STATUTORY GRANTS OF AUTHORITY SUCH AS THIS PROVISION (41 U.S.C. 53)
RELATING TO KICKBACKS WOULD BE SUPERFLUOUS."  ANTE, AT 10 N. 8.  THE
GAO AUTHORITY ASSERTED HERE, HOWEVER, IS SIMPLY THE AUTHORITY TO REFUSE
TO SANCTION PAYMENT UNDER A DISPUTES DECISION ON THE GROUND THAT THE
DECISION DOES NOT SATISFY THE STANDARDS OF THE WUNDERLICH ACT.  THE
ACT, OF COURSE, HAS NOTHING WHATEVER TO DO WITH ILLEGAL ACTIVITIES OF
CONTRACTORS.  IT CONCERNS ONLY THE FINALITY OF ADMINISTRATIVE DISPUTES
DECISIONS.  ENFORCEMENT OF THE ACT OBVIOUSLY WOULD NOT MAKE THE
STATUTORY PROHIBITION OF KICKBACKS "SUPERFLUOUS." 

/46/  EVEN MY BROTHER DOUGLAS ONCE RECOGNIZED THIS: "WE SHOULD ALLOW
THE COURT OF CLAIMS, THE AGENCY CLOSE TO THESE DISPUTES, TO REVERSE AN
OFFICIAL WHOSE CONDUCT IS PLAINLY OUT OF BOUNDS WHETHER HE IS
FRAUDULENT, PERVERSE, CAPTIOUS, INCOMPETENT, OR JUST PALPABLY WRONG." 
UNITED STATES V. WUNDERLICH, SUPRA, AT 102 (DISSENTING OPINION). 

        APPENDIX TO OPINION OF BRENNAN, J., DISSENTING 

WITHIN TWO MONTHS AFTER THE DECISION IN UNITED STATES V. WUNDERLICH,
342 U.S. 98 (1951), SIX BILLS TO EXPAND THE SCOPE OF JUDICIAL REVIEW OF
AGENCY DISPUTES DECISIONS WERE INTRODUCED.  S. 2432 (SEN. CHAVEZ); S.
2487 (SEN. MCCARRAN); H.R. 6214 (REP. CELLER); H.R. 6301 (REP.
SPRINGER); H.R. 6338 (REP. WILSON); H.R. 6404 (REP. WALTER).  HEARINGS
WERE HELD IN THE SENATE ON S. 2487.  HEARINGS ON S. 2487 BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY, 82D CONG., 2D
SESS. (1952).  S. 2487 PROVIDED: 

"THAT NO PROVISION OF ANY CONTRACT ENTERED INTO BY THE UNITED
STATES, RELATING TO THE FINALITY OR CONCLUSIVENESS OF ANY DECISION OF
THE GOVERNMENT CONTRACTING OFFICER, OR OF THE HEAD OF THE DEPARTMENT OR
AGENCY OF THE UNITED STATES CONCERNED OR HIS REPRESENTATIVE, IN A
DISPUTE INVOLVING A QUESTION OF FACT ARISING UNDER SUCH CONTRACT, SHALL
BE CONSTRUED TO LIMIT JUDICIAL REVIEW OF ANY SUCH DECISION ONLY TO
CASES IN WHICH FRAUD BY SUCH GOVERNMENT CONTRACTING OFFICER OR SUCH
HEAD OF DEPARTMENT OR AGENCY OR HIS REPRESENTATIVE IS ALLEGED."  ID.,
AT 1. 

THE COMPTROLLER GENERAL'S REPORT TO THE JUDICIARY COMMITTEE, SETTING
FORTH GAO'S VIEWS ON S. 2487, STATED THAT GAO FELT THAT THE RESULT OF
THE WUNDERLICH DECISION WAS "UNDESIRABLE BOTH AS TO THE CONTRACTOR'S
INTERESTS AND THE INTERESTS OF THE GOVERNMENT."  ID., AT 5-6.  THE
COMPTROLLER GENERAL STRESSED THE LATTER INTEREST. 

"I AM AS DEEPLY CONCERNED, HOWEVER, THAT THE RULE ALLOWS THE
CONTRACTING OFFICIALS UNCONTROLLED DISCRETION OVER THE GOVERNMENT'S
CONTRACTUAL AFFAIRS AS WELL AND PLACES THEM IN A POSITION TO MAKE AS
ARBITRARY AND RECKLESS USE OF THEIR POWER AGAINST THE INTERESTS OF THE
GOVERNMENT AS AGAINST THE INTERESTS OF THE CONTRACTOR.  IN OTHER WORDS,
DECIDING OFFICIALS CAN MAKE JUST AS ARBITRARY DETERMINATIONS IN FAVOR
OF CONTRACTORS, AT THE EXPENSE OF THE TAXPAYERS."  ID., AT 6.  THE
REPORT CONCLUDED THAT GAO CONSIDERED S. 2487 

"INADEQUATE AND . . . OBJECTIONABLE BECAUSE NO PROVISION IS MADE
THEREIN FOR A REVIEW OF DECISIONS OF ADMINISTRATIVE OFFICERS BY THE
GENERAL ACCOUNTING OFFICE.  WITHOUT A PROVISION TO THAT EFFECT THE
GENERAL ACCOUNTING OFFICE IN PERFORMING ITS STATUTORY FUNCTIONS WOULD
BE PRECLUDED FROM QUESTIONING THE PROPRIETY OR LEGALITY OF PAYMENTS
MADE TO A CONTRACTOR AS THE RESULT OF AN ARBITRARY OR GROSSLY ERRONEOUS
DECISION ON THE PART OF THE CONTRACTING OFFICER."  ID., AT 7.  THE
REPORT RECOMMENDED A SUBSTITUTE BILL, WHICH PROVIDED THAT 

"ANY STIPULATION IN A GOVERNMENT CONTRACT TO THE EFFECT THAT
DISPUTED QUESTIONS SHALL BE FINALLY DETERMINED BY AN ADMINISTRATIVE
OFFICIAL, REPRESENTATIVE OR BOARD SHALL NOT BE TREATED AS BINDING IF
THE GENERAL ACCOUNTING OFFICE OR A COURT FINDS THAT THE ACTION OF SUCH
OFFICER, REPRESENTATIVE OR BOARD IS FRAUDULENT, ARBITRARY, CAPRICIOUS,
GROSSLY ERRONEOUS, OR THAT IT IS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE."  IBID. 

FRANK L. YATES, THE ASSISTANT COMPTROLLER GENERAL, EXPANDED ON THE
REPORT IN HIS TESTIMONY BEFORE THE SUBCOMMITTEE.  HE ASSERTED THAT
PRIOR TO WUNDERLICH DISPUTES CLAUSE DECISIONS ON QUESTIONS OF FACT
ARISING UNDER GOVERNMENT CONTRACTS "WERE NOT DISTURBED BY THE GENERAL
ACCOUNTING OFFICE OR THE COURTS UNLESS THE ACTION OF THE ADMINISTRATIVE
OFFICER WAS FRAUDULENT, ARBITRARY, CAPRICIOUS, GROSSLY ERRONEOUS, OR
WITHOUT FOUNDATION IN FACT."  WUNDERLICH, MR. YATES SAID, "MEANS THAT
THE DECISION OF THE ADMINISTRATIVE OFFICIALS NEARLY ALWAYS WILL BE
FINAL BECAUSE OF THE EXTREME DIFFICULTY OF PROVING FRAUD."  ID., AT 8. 
AND, HE CONTINUED, "THE RULE WORKS BOTH WAYS," FOR "(A) DECIDING
ADMINISTRATIVE OFFICIAL CAN MAKE DECISIONS ADVERSE TO THE GOVERNMENT AS
WELL AS TO CONTRACTORS, IN WHICH EVENT AN IMPROPER DECISION RESULTS IN
A BURDEN, AN IMPROPER BURDEN, TO THE TAXPAYERS OF THE COUNTRY."  ID.,
AT 9.  THUS, HE SAID, "IT APPEARS THAT THE EXECUTIVE CONTRACTING
AGENCIES WITHOUT SPECIFIC LEGISLATION AUTHORIZING THEM TO DO SO, MAY,
BY AGREEMENT WITH THE CONTRACTOR, CIRCUMVENT THE OPERATIONS OF COURTS
AND THE GENERAL ACCOUNTING OFFICE TO THE SERIOUS DETRIMENT OF BOTH
PRIVATE BUSINESS AND THE GOVERNMENT."  ID., AT 9-10.  MR. YATES
EXPLAINED THAT GAO'S SUBSTITUTE BILL WOULD RESTORE "TO THE COURTS AND
TO THE GENERAL ACCOUNTING OFFICE . . . THEIR NORMAL AND PROPER
JURISDICTION," FOR: 

"(IT WOULD PERMIT (ADMINISTRATIVE OFFICERS) TO MAKE DETERMINATIONS
ON QUESTIONS OF FACT WHICH WOULD HAVE FINAL EFFECT IF THE DECISIONS
WERE NOT FOUND BY THE GENERAL ACCOUNTING OFFICE OR THE COURTS TO BE
FRAUDULENT, ARBITRARY, CAPRICIOUS, ET CETERA.  SUCH A LAW NOT ONLY
WOULD PROTECT A CONTRACTOR FROM FRAUDULENT, ARBITRARY OR CAPRICIOUS
ACTION BY GIVING HIM, IN ADDITION TO RESORT TO THE COURTS, A FURTHER
ADMINISTRATIVE REMEDY BEFORE THE GENERAL ACCOUNTING OFFICE . . . BUT IT
WOULD ALSO PROVIDE A PROTECTION, THROUGH THE GENERAL ACCOUNTING OFFICE,
AGAINST DECISIONS ADVERSE TO THE INTERESTS OF THE UNITED STATES. 
CERTAINLY THE RIGHTS OF CONTRACTORS AND THE GOVERNMENT TO REVIEW OR
APPEAL SHOULD BE COEXTENSIVE."  ID., AT 11. 

THE MANAGING DIRECTOR OF THE ASSOCIATED GENERAL CONTRACTORS, H. E.
FOREMAN, TESTIFIED THAT THE CONSTRUCTION INDUSTRY HAD FOR MANY YEARS
ATTEMPTED WITHOUT SUCCESS TO SECURE CHANGES IN THE STANDARD DISPUTES
CLAUSE.  THE INDUSTRY'S LATEST PROPOSED DISPUTES CLAUSE, WHICH MR.
FOREMAN READ AT THE HEARING, PROVIDED "(THAT NOTHING IN THIS CONTRACT .
. . SHALL VOID THE RIGHT OF EITHER PARTY TO THIS CONTRACT CARRYING THE
DISPUTE BEFORE A COURT OF COMPETENT JURISDICTION."  ID., AT 24.  THE
ASSOCIATION'S GENERAL COUNSEL, JOHN C. HAYES, STATED THAT ITS POSITION
WAS "THAT ANY DECISION MADE BY A CONTRACTING OFFICER OR HEAD OF A
DEPARTMENT, AGENCY, OR BUREAU, SHOULD BE SUBJECT TO JUDICIAL REVIEW, IN
ORDER TO GUARANTEE THAT SUCH DECISION IS REASONABLE, MADE WITH DUE
REGARD TO THE RIGHTS OF BOTH THE CONTRACTING PARTIES, AND SUPPORTED BY
THE EVIDENCE UPON WHICH SUCH DECISION WAS BASED."  ID., AT 29.  IN
AMPLIFYING ON THIS POSITION, MR. HAYES TESTIFIED THAT ONLY "BY
PERMITTING JUDICIAL REVIEW OF THE CONTRACTING OFFICER'S DECISION . . .
CAN THE RIGHTS OF BOTH THE CONTRACTING PARTIES BE PROTECTED."  ALTHOUGH
HE THEN REFERRED TO THE NEED FOR LEGISLATION THAT WOULD AUTHORIZE THE
COURTS TO "ENTER JUDGMENT AGAINST THE UNITED STATES ON ANY CLAIM IN
WHICH THE CONTRACTOR SHALL SEEK A REVIEW" OF A DISPUTES DECISION, HE
IMMEDIATELY ADDED THAT THE LEGISLATION SHOULD PROVIDE "THAT ANY
PROVISION IN ANY CONTRACT WITH THE UNITED STATES ABRIDGING THE RIGHT OF
THE PARTIES TO COURT REVIEW SHALL BE NULL AND VOID."  ID., AT 30. 
FINALLY, IN COMMENTING ON GAO'S PROPOSED SUBSTITUTE BILL, MR. HAYES
SAID THAT THE ASSOCIATION "WOULD WELCOME FURTHER ADMINISTRATIVE
REVIEW," BUT THAT CONTRACTORS ALSO "SHOULD BE PERMITTED OUR JUDICIAL
REVIEW, WHETHER IT BE THE GOVERNMENT OR WHETHER IT BE THE CONTRACTOR,
IT DOESN'T MAKE ANY DIFFERENCE.  IT HAS TO CUT BOTH WAYS . . . . "
ID., AT 31.  REPLYING TO A SPECIFIC QUESTION, MR. HAYES DENIED THAT
JUDICIAL REVIEW "WAS A ONE-WAY STREET IN FAVOR OF THE CONTRACTOR,"
REPEATING THAT "IT CUTS BOTH WAYS."  HE CONCLUDED THAT THE ASSOCIATION
WISHED "TO TAKE THE POSITION OF BEING ABSOLUTELY FAIR IN URGING
LEGISLATION THAT WILL PROTECT THE RIGHTS OF BOTH GOVERNMENT AND
CONTRACTOR."  ID., AT 32. 

THERE WAS MUCH DISCUSSION OF GAO'S SUBSTITUTE BILL AND GAO'S ROLE IN
THE REVIEW OF AGENCY DISPUTES DECISIONS.  A FORMER COUNSEL TO THE
COMPTROLLER GENERAL, O. R. MCGUIRE, TESTIFIED THAT GAO'S REVIEW SHOULD
BE LIMITED TO QUESTIONS OF LAW AND THAT GAO SHOULD "ACCEPT THE FACTS,
UNLESS OF COURSE, THERE IS FRAUD, OR JUST GROSS MISTAKE."  ID., AT 41. 
JOHN W. GASKINS, WHO WAS ON THE BRIEF FOR WUNDERLICH IN THE SUPREME
COURT, PROPOSED A REVISION OF GAO'S SUBSTITUTE BILL SPECIFICALLY
GRANTING BOTH GAO AND THE COURTS "JURISDICTION TO SET ASIDE ANY
(ADMINISTRATIVE) DECISION" THAT DID NOT COMPORT WITH THE STANDARDS SET
OUT IN GAO'S BILL.  ID., AT 68.  GARDINER JOHNSON, AN ATTORNEY WHO
SPECIALIZED IN THE REPRESENTATION OF CONTRACTORS, TESTIFIED THAT, AS HE
UNDERSTOOD GAO'S POSITION, GAO "SIMPLY WANTED PRACTICALLY THE SAME
RIGHT THAT THE CONTRACTORS ARE REQUESTING, TO TAKE AN APPEAL FROM WHAT
THEY CONSIDER TO BE AN UNFAIR AND UNREASONABLE DECISION."  ID., AT 84. 
AS SO UNDERSTOOD, HE SAID, "OUR PEOPLE HAVE NO BASIC QUARREL WITH
THAT.  WE ARE AGAINST THE GOVERNMENT AND THE TAXPAYER OR AGAINST THE
CONTRACTOR."  ID., AT 83. 

MOST OF THE WITNESSES AND MOST OF THE SUBMITTED STATEMENTS, HOWEVER,
WERE CONCERNED ONLY WITH PROTECTING CONTRACTORS.  E.G., ID., AT 2-3,
62, 70-75, 85-87, 119-136.  A FEW WITNESSES WENT EVEN FURTHER.  ROBERT
E. KLINE, JR., AN ATTORNEY REPRESENTING THE NATIONAL ASSOCIATION OF
RIVER AND HARBORS CONTRACTORS, PROPOSED AMENDMENTS TO S. 2487 DESIGNED
"TO ASSURE FULL RESTORATION TO GOVERNMENT CONTRACTORS OF THEIR INHERENT
RIGHT TO JUDICIAL REVIEW OF UNJUST DECISIONS BY GOVERNMENT CONTRACTING
OFFICERS AND DEPARTMENT HEADS."  ID., AT 58.  THESE AMENDMENTS
SPECIFICALLY LIMITED THE LEGISLATION TO CONTRACTORS' SUITS IN WHICH A
COURT WOULD "ENTER JUDGMENT AGAINST THE UNITED STATES."  ID., AT 59. 
ALAN JOHNSTONE, AN ATTORNEY REPRESENTING A CONTRACTOR, INITIALLY
SUGGESTED THAT THE LEGISLATION "SHOULD PROVIDE . . . SIMPLY THAT ALL
ADMINISTRATIVE DETERMINATIONS IN THE PERFORMANCE OF A CONTRACT WITH THE
UNITED STATES SHALL BE SUBJECT TO REVIEW BY THE COMPTROLLER GENERAL AND
BY THE COURTS, ACCORDING TO LAW, THE PROVISIONS OF ANY SUCH CONTRACT TO
THE CONTRARY NOTWITHSTANDING."  ID., AT 61-62.  MR. JOHNSTONE RETURNED
TO TESTIFY LATER, AND, ALTHOUGH EXPRESSING A PREFERENCE FOR A "BILL
MAKING) JUSTICIABLE ANY GRIEVANCE WHICH EITHER OF THE PARTIES TO THE
CONTRACT WOULD HAVE," SUBMITTED TWO PROPOSED BILLS ON BEHALF OF
HIMSELF, MR. MCGUIRE, AND MR. GASKINS, BOTH OF WHOM HAD ALREADY
TESTIFIED, AND HARRY D. RUDDIMAN, WHO SUBSEQUENTLY TESTIFIED AT THE
HOUSE HEARINGS.  THESE PROPOSALS MADE JUDICIAL REVIEW AVAILABLE ONLY TO
CONTRACTORS, ONE PROVIDING THAT "THE UNITED STATES SHALL NOT EMPLOY AS
A DEFENSE THE FINALITY OF" AGENCY DECISIONS, THE OTHER THAT "THE UNITED
STATES SHALL NOT AVAIL ITSELF OF THE DEFENSE OF THE FINALITY OF SUCH
DECISIONS)."  ID., AT 107. 

IN CONTRAST, THE ASSOCIATED GENERAL CONTRACTORS, ADHERING TO THE
POSITION ITS REPRESENTATIVES HAD TAKEN AT THE HEARINGS, SUBMITTED A
RESOLUTION ADOPTED AT ITS ANNUAL CONVENTION STATING THAT ANY DISPUTES
DECISON "SHOULD BE SUBJECT TO JUDICIAL REVIEW, IN ORDER TO GUARANTEE
THAT SUCH DECISION IS REASONABLE, MADE WITH DUE REGARD TO THE RIGHTS OF
BOTH THE CONTRACTING PARTIES, AND SUPPORTED BY THE EVIDENCE UPON WHICH
SUCH DECISION WAS BASED," AND URGING LEGISLATION THAT WOULD PROVIDE
"THAT ANY PROVISION IN ANY CONTRACT WITH THE UNITED STATES ABRIDGING
THE RIGHTS OF THE PARTIES THERETO TO COURT REVIEW SHALL BE NULL AND
VOID."  ID., AT 114. 

AFTER THE HEARINGS CONCLUDED, THE COMPTROLLER GENERAL SENT THE
COMMITTEE A COPY OF HIS REPORT TO THE CHAIRMAN OF THE HOUSE JUDICIARY
COMMITTEE DEALING WITH THE HOUSE BILLS.  ID., AT 116-119.  THIS REPORT
REITERATED MANY OF THE COMMENTS MADE IN THE COMPTROLLER GENERAL'S
EARLIER REPORT TO THE SENATE COMMITTEE.  THE REPORT ALSO OBJECTED TO
THE TWO PROPOSED BILLS, SUBMITTED BY MR. JOHNSTONE, LIMITING JUDICIAL
REVIEW TO CONTRACTORS ON THE GROUND THAT "THE GOVERNMENT WOULD BE
PRECLUDED FROM EMPLOYING THE FINALITY OF THE ADMINISTRATIVE DECISION AS
A DEFENSE TO A SUIT, (WHILE) THE CONTRACTORS WOULD BE FREE TO UTILIZE
SUCH DEFENSE SHOULD THE ACCOUNTING OFFICERS OF THE GOVERNMENT ATTEMPT
TO QUESTION THE VALIDITY OF A PAYMENT MADE TO A CONTRACTOR."  THE
REPORT, AS DID THE PRIOR ONE, RECOMMENDED ADOPTION OF GAO'S SUBSTITUTE
BILL.  ID., AT 119. 

S. 2487 WAS REPORTED OUT IN AMENDED FORM, INCORPORATING THE
SUBSTANCE OF GAO'S PROPOSAL.  AS AMENDED, S. 2487 PROVIDED 

"THAT NO PROVISION OF ANY CONTRACT ENTERED INTO BY THE UNITED
STATES, RELATING TO THE FINALITY OR CONCLUSIVENESS, IN A DISPUTE
INVOLVING A QUESTION ARISING UNDER SUCH CONTRACT, OF ANY DECISION OF AN
ADMINISTRATIVE OFFICIAL, REPRESENTATIVE, OR BOARD, SHALL BE PLEADED AS
LIMITING JUDICIAL REVIEW OF ANY SUCH DECISION TO CASES IN WHICH FRAUD
BY SUCH OFFICIAL, REPRESENTATIVE, OR BOARD IS ALLEGED; AND ANY SUCH
PROVISION SHALL BE VOID WITH RESPECT TO ANY SUCH DECISION WHICH THE
GENERAL ACCOUNTING OFFICE OR A COURT, HAVING JURISDICITON, FINDS
FRAUDULENT, GROSSLY ERRONEOUS, SO MISTAKEN AS NECESSARILY TO IMPLY BAD
FAITH, OR NOT SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL
EVIDENCE.  . . . "  S. REP. NO. 1670, 82D CONG., 2D SESS., 1 (1952). 
THE COMMITTEE REPORT STATED THAT "(THE PURPOSE OF THE PROPOSED
LEGISLATION TO OVERCOME THE INEQUITABLE EFFECT, UNDER A RECENT SUPREME
COURT DECISION, OF LANGUAGE IN GOVERNMENT CONTRACTS WHICH MAKES THE
DECISION OF THE CONTRACTING OFFICER OR THE HEAD OF THE AGENCY FINAL
WITH RESPECT TO QUESTIONS OF FACT."  IBID.  THE REPORT POINTED OUT
"THAT TO THE SAME EXTENT (THE WUNDERLICH) DECISION WOULD OPERATE TO THE
DISADVANTAGE OF AN AGGRIEVED CONTRACTOR, IT WOULD ALSO OPERATE TO THE
DISADVANTAGE OT THE GOVERNMENT IN THOSE CASES, AS SOMETIMES HAPPENS,
WHEN THE CONTRACTING OFFICER MAKES A DECISION DETRIMENTAL TO THE
GOVERNMENT INTEREST IN THE CLAIM."  ID., AT 2.  THE REPORT FURTHER
EXPLAINED THAT: 

"S. 2487 WILL HAVE THE EFFECT OF PERMITTING REVIEW IN THE GENERAL
ACCOUNTING OFFICE OR A COURT WITH RESPECT TO ANY DECISION OF A
CONTRACTING OFFICER OR A HEAD OF AN AGENCY WHICH IS FOUND TO BE
FRAUDULENT, GROSSLY ERRONEOUS, SO MISTAKEN AS NECESSARILY TO IMPLY BAD
FAITH, OR NOT SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL
EVIDENCE.  IN OTHER WORDS, IN THOSE INSTANCES WHERE A CONTRACTING
OFFICER HAS MADE A MISTAKEN DECISION, EITHER WITTINGLY OR UNWITTINGLY,
IT WILL NOT BE NECESSARY FOR THE AGGRIEVED PARTY TO, IN EFFECT, CHARGE
HIM WITH BEING A FRAUD OR A CHEAT IN ORDER TO AFFECT ( ) COLLECTION OF
WHAT IS RIGHTFULLY DUE."  IBID. FINALLY, THE REPORT STRESSED THAT
AMENDED S. 2487 WAS "NOT INTENDED TO NARROW OR RESTRICT OR CHANGE IN
ANY WAY THE PRESENT JURISDICTION OF THE GENERAL ACCOUNTING OFFICE . . .
BUT SIMPLY TO RECOGNIZE THE JURISDICTION WHICH THE GENERAL ACCOUNTING
OFFICE ALREADY HAS."  ID., AT 2-3. 

ALTHOUGH THE SENATE, WITHOUT DEBATE, PASSED AMENDED S. 2487, 98
CONG.REC.  7783-7784; ID., AT 9059, THE HOUSE DID NOT ACT UPON IT
DURING THE 82D CONGRESS.  IT WAS REINTRODUCED IN THE SENATE OF THE 83D
CONGRESS AS S. 24.  THE COMMITTEE REPORT WAS, WITH FORMAL CHANGES,
IDENTICAL TO THE REPORT ON AMENDED S. 2487.  S. REP. NO. 32, 83D CONG.,
1ST SESS. (1953).  SENATOR MCCARRAN, THE BILL'S SPONSOR, EXPLAINED ON
THE FLOOR THAT THE EFFECT OF THE WUNDERLICH DECISION WAS TO REQUIRE
"THAT THE AGGRIEVED PARTY ALLEGE AND PROVE THAT SOME GOVERNMENT
EMPLOYEE DELIBERATELY CHEATED, OR INTENDED TO DEFRAUD HIM, IN ORDER TO
GET A COURT REVIEW OF THE QUESTION."  99 CONG.REC.  4572.  HE ALSO
NOTED THAT: 

     "SENATORS WHO HAVE LOOKED INTO THIS MATTER KNOW THAT THIS

  DECISION OF THE SUPREME COURT, CUTS TWO WAYS.  IT CAN HURT THE

  GOVERNMENT BADLY, AS WELL AS DOING AN INJUSTICE TO THE

  CONTRACTORS.  IN A RECENT CASE . . . (THE COMPTROLLER GENERAL . .

  . ATTEMPTED TO RECOVER ON BEHALF OF THE GOVERNMENT, BECAUSE THE

MISTAKE WAS AGAINST THE GOVERNMENT.  THE CONTRACTOR INTERPOSED A

  DEFENSE BASED ON . . . THE WUNDERLICH CASE . . . (THE RESULT WAS

  A FAILURE OF RECOVERY ON BEHALF OF THE GOVERNMENT. 

     "IT WAS BECAUSE OF THIS CASE . . . THAT THE COMPTROLLER
GENERAL

  . . . TESTIFIED BEFORE THE JUDICIARY COMMITTEE IN BEHALF OF THIS

  BILL."  ID., AT 4573. 

LATER THE SAME DAY, HOWEVER, SENATOR MCCARRAN STATED THAT THE AIR FORCE
"OBJECTED TO THE FACT THAT THE BILL GAVE THE COMPTROLLER GENERAL THE
SAME RIGHT THAT WAS GIVEN TO A CONTRACTOR TO QUESTION A DECISION OF A
CONTRACTING OFFICER."  ID., AT 4598.  HE ALSO STATED THAT THE
"COMPTROLLER GENERAL FEELS THAT IN ORDER TO PROTECT THE INTERESTS OF
THE GOVERNMENT, IT IS NECESSARY THAT HE SHALL HAVE AS MUCH RIGHT TO
QUESTION THE DECISION OF A CONTRACTING OFFICER . . . AS MAY BE GIVEN TO
THE PRIVATE PARTY TO THE CONTRACT."  ID., AT 4599.  WHEN S. 24 REACHED
THE FLOOR A MONTH LATER, SENATOR MCCARRAN AGAIN EMPHASIZED THAT WHILE
THE WUNDERLICH DECISION COULD "OPERATE GREATLY TO THE DISADVANTAGE OF
CONTRACTORS," IT COULD ALSO "OPERATE TO THE DISADVANTAGE OF THE
GOVERNMENT."  ID., AT 6170.  THE SENATE THEN PASSED THE BILL.  ID., AT
6201. 

REPRESENTATIVE REED INTRODUCED AMENDED S. 2487 IN THE HOUSE AS H.R.
1839, AND HEARINGS WERE HELD ON IT AND TWO RELATED BILLS, H.R. 3634
(REP. CELLER) AND H.R. 6946 (REP. WILLIS).  HEARINGS ON H.R. 1839 ET
AL. BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON THE JUDICIARY,
83D CONG., 1ST AND 2D SESS., SER.  12 (1953, 1954). 

AT THE INITIAL HEARING IN JULY 1953, ALL WITNESSES SUPPORTED THE
BILL.  ELWYN L. SIMMONS, A CONTRACTOR, ASSERTED THAT, BECAUSE OF
"INCOMPETENT OR NEGLIGENT OR CAPRICIOUS AGENCY REPRESENTATIVES)," THE
WUNDERLICH DECISION COULD "WORK AS READILY AGAINST THE GOVERNMENT'S
INTERESTS AS AGAINST THAT OF THE CONTRACTOR" AND THAT "ONLY YOUR
IMMEDIATE LEGISLATIVE ACTION THROUGH ENACTMENT OF H.R. 1839 OR S. 24
CAN NOW PROTECT BOTH THE GOVERNMENT AND THE CONTRACTOR FROM THIS . . .
UNPRECEDENTED SITUATION."  ID., AT 4.  REFERRING TO THE SENATE DEBATES
ON S. 24, MR. SIMMONS NOTED 

"THAT THERE WAS SOME OBJECTION BY CONTRACTORS DOING BUSINESS WITH
THE AIR FORCE TO THE INCLUSION OF THE GAO UNDER THE PROVISIONS OF THIS
BILL.  I DO NOT KNOW WHAT BASIS THESE AIR FORCE CONTRACTORS HAVE FOR
THEIR OBJECTION, BUT WE AS GENERAL CONTRACTORS ARE USED TO THE GAO IN
OUR BUSINESS AND THEIR AUDITING STAFF AND FORMS NO BASIS FOR OUR
OBJECTION."  ID., AT 5. 

GEORGE P. LEONARD, AN OFFICER OF THE WUNDERLICH CONTRACTING CO.,
TESTIFIED THAT BECAUSE OF WUNDERLICH "NEITHER THE GOVERNMENT THROUGH
THE GAO, NOR THE CONTRACTORS THROUGH THE COURTS, HAVE ANY RIGHT TO
APPEAL FROM CONTRACTING OFFICERS' DECISIONS EVEN THOUGH THEY MAY BE
GROSSLY ERRONEOUS."  ID., AT 7.  HE ADDED THAT HE SAW "NO REASON WHY
ANYBODY SHOULD OBJECT TO EITHER THE GENERAL ACCOUNTING OFFICE OR THE
COURTS PASSING ON THESE DECISIONS OF THE CONTRACTING OFFICERS."  ID.,
AT 8. 

HARRY D. RUDDIMAN, WHO ARGUED FOR WUNDERLICH BEFORE THE SUPREME
COURT, SUBMITTED A PREPARED STATEMENT ASSERTING THAT UNLESS H.R. 1839
WAS ENACTED, "NOT ONLY THE CONTRACTOR BUT ALSO THE GOVERNMENT, WILL BE
UNABLE TO OBTAIN EFFECTIVE JUDICIAL REVIEW OF CONTRACTING OFFICERS'
DECISIONS."  IN HIS VIEW, H.R. 1839 "WOULD RESTORE TO THE COURTS AN
EFFECTIVE REVIEW OF DETERMINATION MADE BY CONTRACTING OFFICERS."  ID.,
AT 12.  ALTHOUGH, IN LIGHT OF THE SENATE REPORTS ON AMENDED S. 2487 AND
S. 24, MR. RUDDIMAN DISCOUNTED "(FEARS . . . THAT THE REFERENCE TO THE
GENERAL ACCOUNTING OFFICE IN S. 24 WOULD GIVE IT POWERS WITH RESPECT TO
THE REVIEW OF PAYMENTS UNDER GOVERNMENT CONTRACTS BEYOND THOSE WHICH IT
ALREADY POSSESSES," HE SUGGESTED IN HIS STATEMENT THAT "ANY DOUBT ON
THE MATTER . . . CAN VERY EASILY BE REMOVED BY STRIKING OUT THE WORDS
'THE GENERAL ACCOUNTING OFFICE OR'"  IN H.R. 1839.  ID., AT 13.  IN HIS
TESTIMONY, HOWEVER, MR. RUDDIMAN EXPRESSED RESERVATIONS ABOUT REMOVING
GAO FROM THE BILL. 

     "LASTLY, I WOULD LIKE TO DEAL WITH AN OBJECTION WHICH HAS BEEN

  RAISED TO INCLUDING THE GENERAL ACCOUNTING OFFICE IN THE

  PROVISIONS OF THIS BILL.  I DON'T KNOW JUST EXACTLY WHAT THE

  BASIS OF THE OBJECTION IS, BUT IN MY OPINION, ANY FEARS ALONG

  THAT LINE ARE GROUNDLESS.  AS I SEE IT, THE GENERAL ACCOUNTING

  OFFICE, AS A MATTER OF PRACTICE, IN REVIEWING CONTRACTS AND

  CHANGE ORDERS FOR PURPOSES OF PAYMENT, IS ALWAYS GOING TO APPLY

  THE STANDARDS OF REVIEW THAT ARE GRANTED TO THE COURTS.  THAT HAS

  BEEN THEIR PRACTICE BEFORE THE WUNDERLICH DECISION.  THEY FIGURED

  IF THERE WAS GOOD REASON TO DOUBT THE FINALITY OF THE DECISION,

  THE MATTER OUGHT TO BE REFERRED TO THE COURTS.  I THINK THAT IS

  ALL THAT WOULD BE DONE BY THE LANGUAGE OF THIS BILL. 

      "AT ONE TIME I THOUGHT THERE PROBABLY WOULD BE NO OBJECTION
TO

  STRIKING OUT THE REFERENCE TO THE GENERAL ACCOUNTING OFFICE AS

  MENTIONED IN S. 24 OR H.R. 1839.  I FELT THAT EVEN IF YOU HAD NO

  REFERENCE, THE GENERAL ACCOUNTING OFFICE WOULD STILL EXERCISE

  THAT SAME JURISDICTION.  HOWEVER, IN VIEW OF THE FACT THAT THE

  SENATE HAS ALREADY PASSED A BILL WHICH HAS INCLUDED A REFERENCE

  TO THE GENERAL ACCOUNTING OFFICE, I THINK IT WOULD BE DANGEROUS

  NOW TO ELIMINATE THE GENERAL ACCOUNTING OFFICE FROM THE

  PROVISIONS OF THE BILL.  IT MIGHT BE MISCONSTRUED AS TAKING AWAY

  THIS JURISDICTION FROM THE GENERAL ACCOUNTING OFFICE."  ID., AT

  16. 

REPRESENTATIVE GRAHAM, A COMMITTEE MEMBER, REPLIED THAT IT WAS
"NEEDLESS TO REFER TO" GAO ANYWAY.  IBID.  MR. RUDDIMAN, HOWEVER,
ADHERED TO HIS VIEW IN A LETTER TO THE SUBCOMMITTEE THE FOLLOWING DAY. 

"I FEEL THAT IF THE BILL, PASSED BY THE SENATE, HAD CONTAINED NO
REFERENCE TO THE GENERAL ACCOUNTING OFFICE AS A PRACTICAL MATTER WOULD,
IN REVIEWING PAYMENTS UNDER GOVERNMENT CONTRACTS AND CHANGE ORDERS,
EMPLOY THESE SAME STANDARDS OF REVIEW THAT ARE GRANTED BY THE BILL TO
THE COURTS.  THUS, IF THE GENERAL ACCOUNTING OFFICE WAS CONFRONTED WITH
AN ADMINISTRATIVE DECISION WHICH IT THOUGHT WOULD BE SET ASIDE BY THE
COURTS, IT WOULD REFUSE TO MAKE PAYMENT AND THROW THE MATTER INTO
COURT.  HOWEVER, SINCE THE SENATE, IN PASSING S. 24, HAS EXPRESSLY
INCLUDED THE GENERAL ACCOUNTING OFFICE IN THE BILL, SOME DOUBT AS TO
THE GENERAL ACCOUNTING OFFICE JURISDICTION MIGHT ARISE IF THE HOUSE OF
REPRESENTATIVES SHOULD THEN STRIKE OUT ALL REFERENCE TO THE GENERAL
ACCOUNTING OFFICE.  THERE WOULD THEN BE THE POSSIBILITY THAT THIS
ACTION WOULD BE CONSTRUED AS LIMITING REVIEW BY THE GENERAL ACCOUNTING
OFFICE TO THE INEFFECTIVE GROUND OF FRAUDULENT INTENT PRESCRIBED BY THE
WUNDERLICH DECISION.  IT IS THEREFORE MY SUGGESTION THAT THE BILL WE
PASSED WITHOUT CHANGE IN THE LANGUAGE EMPLOYED BY THE SENATE."  ID., AT
17.  ALAN JOHNSTONE, THE FINAL WITNESS OF THE DAY, LIKEWISE URGED THAT
GAO BE LEFT IN H.R. 1839.  ID., AT 18.  HE SAID THAT "THIS BILL WOULD
THROW WIDE THE PORTALS OF THE COURTS OF JUSTICE TO ANYONE, INCLUDING
THE GOVERNMENT, WHICH HAS A GRIEVANCE," AND, REFERRING, AS HAD SENATOR
MCCARRAN, TO LEEDS & NORTHRUP CO. V. UNITED STATES, 101 F.SUPP.  999
(ED PA. 1951), IN WHICH A CONTRACTOR SUCCESSFULLY ASSERTED A WUNDERLICH
DEFENSE, HE SAID "THAT WHAT IS SAUCE FOR THE GOOSE IS SAUCE FOR THE
GANDER."  ID., AT 19. 

OPPOSITION TO H.R. 1839 WAS ALSO BECOMING APPARENT.  AMONG THE
LETTERS SENT TO THE COMMITTEE, ID., AT 22-30, ALL CALLING FOR
LEGISLATION TO PROTECT THE RIGHTS OF CONTRACTORS, WAS ONE URGING
DELETION OF THE REFERENCE TO GAO BECAUSE "(THE EFFECT OF THE PROVISION
IS TO SET UP THE GENERAL ACCOUNTING OFFICE AS A 'COURT OF CLAIMS.'  . .
. (AN AGENCY OF THE LEGISLATIVE BRANCH . . . SHOULD NOT BE USED TO
PERFORM FUNCTIONS INTENDED FOR THE JUDICIAL BRANCH."  ID., AT 26. 

SHORTLY BEFORE THE HEARINGS RESUMED IN JANUARY 1954, THE COMPTROLLER
GENERAL WROTE THE CHAIRMAN OF THE COMMITTEE ABOUT H.R. 1839.  HE NOTED
THAT "THERE WAS CONSIDERABLE OPPOSITION TO THE BILL FROM SOME QUARTERS
. . . ON THE BASIS . . . THAT THE GENERAL ACCOUNTING OFFICE SHOULD NOT
BE GIVEN EXPRESS AUTHORITY BY STATUTE TO REVIEW AND OVERRULE THE
DETERMINATIONS OF ADMINISTRATIVE OFFICIALS."  ID., AT 135.  HE
RESPONDED THAT GAO "HAS NOT ASKED FOR AUTHORITY WHICH IT DID NOT HAVE
BEFORE THE DECISION IN THE WUNDERLICH CASE," AND HE REFERRED TO THE
STATEMENT IN THE SENATE REPORTS THAT THE BILL WOULD NOT AFFECT GAO'S
JURISDICTION.  NEVERTHELESS, HE THEN PRESENTED A SUBSTITUTE BILL, TO
WHICH HE SAID THERE WOULD BE LITTLE OR NO OPPOSITION BY INDUSTRY GROUPS
AND ADMINISTRATIVE AGENCIES.  HE STATED THAT "THIS SUBSTITUTE LANGUAGE
WILL ACCOMPLISH WHAT WE HAVE BEEN STRIVING FOR ALL ALONG AND WILL PLACE
THE GENERAL ACCOUNTING OFFICE IN PRECISELY THE SAME SITUATION IT WAS IN
BEFORE" WUNDERLICH.  ID., AT 136.  GAO'S PROPOSED BILL PROVIDED: 

"THAT NO PROVISION OF ANY CONTRACT ENTERED INTO BY THE UNITED
STATES, RELATING TO THE FINALITY OR CONCLUSIVENESS OF ANY DECISION OF
THE HEAD OF ANY DEPARTMENT OR AGENCY OR HIS DULY AUTHORIZED
REPRESENTATIVE OR BOARD IN A DISPUTE INVOLVING A QUESTION ARISING UNDER
SUCH CONTRACT, SHALL BE PLEADED AS LIMITING JUDICIAL REVIEW OF ANY SUCH
DECISION TO CASES WHERE FRAUD BY SUCH OFFICIAL OR HIS SAID
REPRESENTATIVE OR BOARD IS ALLEGED:  PROVIDED, HOWEVER, THAT ANY SUCH
DECISION SHALL BE FINAL AND CONCLUSIVE UNLESS THE SAME IS FRAUDULENT OR
CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY
BAD FAITH, OR IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.  . . . "  IBID.
WITH THE ADDITION OF THE WORDS "IN ANY SUIT NOW FILED OR TO BE FILED,"
ADDED TO DEAL WITH RETROACTIVITY PROBLEMS, SEE, E.G., ID., AT 48, 82,
GAO'S BILL EVENTUALLY WAS ENACTED AS THE WUNDERLICH ACT. 

IN COMMENTING UPON GAO'S BILL, E. L. FISHER, GAO'S GENERAL COUNSEL,
REITERATED MUCH OF THE TESTIMONY OF THE ASSISTANT COMPTROLLER GENERAL,
MR. YATES, AT THE SENATE HEARING.  MR. FISHER, AS HAD MR. YATES,
STRESSED THAT THE WUNDERLICH "RULE WORKS BOTH WAYS.  A DECIDING
ADMINISTRATIVE OFFICIAL CAN MAKE DECISIONS ADVERSE TO THE GOVERNMENT AS
WELL AS TO CONTRACTORS."  ID., AT 38.  MR. FISHER, IN LANGUAGE
VIRTUALLY IDENTICAL TO THAT EARLIER USED BY MR. YATES, URGED PASSAGE OF
EITHER H.R. 1839 OR GAO'S PROPOSED SUBSTITUTE BECAUSE THEY 

"WOULD PERMIT (ADMINISTRATIVE OFFICERS) TO MAKE DETERMINATIONS ON
QUESTIONS OF FACT WHICH WOULD HAVE FINAL EFFECT IF THE DECISIONS WERE
NOT FOUND BY THE GENERAL ACCOUNTING OFFICE OR THE COURTS TO BE
FRAUDULENT, ARBITRARY, CAPRICIOUS, AND SO FORTH.  SUCH A LAW NOT ONLY
WOULD PROTECT A CONTRACTOR FROM FRAUDULENT, ARBITRARY OR CAPRICIOUS
ACTION BY GIVING HIM, IN ADDITION TO RESORT TO THE COURTS, A FURTHER
ADMINISTRATIVE REMEDY BEFORE THE GENERAL ACCOUNTING OFFICE, AND WOULD
ALSO PROVIDE A PROTECTION, THROUGH THE GENERAL ACCOUNTING OFFICE,
AGAINST DECISIONS ADVERSE TO THE INTERESTS OF THE UNITED STATES. 
CERTAINLY THE RIGHTS OF CONTRACTORS) AND THE GOVERNMENT TO REVIEW OR
APPEAL SHOULD BE COEXTENSIVE."  ID., AT 39. 

THE ASSOCIATE GENERAL COUNSEL OF THE GENERAL SERVICES
ADMINISTRATION, J. H. MACOMBER, JR., SIMILARLY EMPHASIZED THE NEED TO
PROTECT THE GOVERNMENT'S INTERESTS, STATING "THAT THERE SHOULD BE SOME
PROVISION IN THE LEGISLATION, IF NOT AN EXPLICIT PROVISION AT LEAST BY
APPROPRIATE WORDING WITH RESPECT TO THE JUDICIAL REVIEW PORTION, THAT
WILL INSURE AN OPPORTUNITY TO PROTECT THE GOVERNMENT AGAINST EXCESSIVE
GENEROSITY, AGAINST DECISIONS OF THE CONTRACTING OFFICER ADVERSE TO THE
GOVERNMENT."  ID., AT 59.  MR. MACOMBER SUGGESTED THAT 

"THERE MIGHT BE SOME DOUBT UNDER THE WORDING OF H.R. 6946 . . .
WHERE SPECIFIC REFERENCE IS MADE TO A FINDING BY THE COURT, AS TO
WHETHER THE GENERAL ACCOUNTING OFFICE COULD SEEK A COURT REVIEW BY A
SETOFF OR BY APPLYING TO THE DEPARTMENT OF JUSTICE FOR RECOVERY IN A
CASE WHERE THEY FELT THE ACTION OF THE CONTRACTING OFFICER WAS GROSSLY
ERRONEOUS AS AGAINST THE GOVERNMENT.  I THINK THAT THE LANGUAGE
SUGGESTED BY THE COMPTROLLER GENERAL'S REVISION GETS AWAY FROM THAT
DIFFICULTY."  IBID. 

MR. SIMMONS, A CONTRACTOR WHO HAD SUPPORTED H.R. 1839 AT THE INITIAL
HEARING, APPEARED AGAIN TO SUPPORT GAO'S SUBSTITUTE BILL ON THE GROUND
THAT IT "WAS PREPARED TO MEET OBJECTIONS OF CERTAIN INDUSTRIES AGAINST
GIVING THE GENERAL ACCOUNTING OFFICE EXPRESS STATUTORY AUTHORITY TO
REVIEW ADMINISTRATIVE DECISIONS UNDER THE DISPUTES CLAUSE, AND IS
DESIGNED TO GIVE THE GENERAL ACCOUNTING OFFICE NO MORE AUTHORITY IN
THIS CONNECTION THAN IT HAD BEFORE THE WUNDERLICH DECISION."  ID., AT
76. 

MANY OTHER WITNESSES SUPPORTED GAO'S SUBSTITUTE BILL ON ESSENTIALLY
THE SAME GROUNDS.  E.G., ID., AT 52-56, 77-88, 91-95, 101-104, 123
124.  F. DAHLING, ASSOCIATE COUNSEL FOR THE AUTOMOBILE MANUFACTURERS
ASSOCIATION, ASSERTED THAT H.R. 1839 WOULD "MAKE THE GENERAL ACCOUNTING
OFFICE ANOTHER COURT OF CLAIMS" AND THUS DEPRIVE CONTRACTORS OF THEIR
DAY IN COURT. 

"NOW, IT DOES NOT APPEAR FROM THE LANGUAGE IN THAT BILL THAT THERE
WOULD BE ANY APPEAL FROM A DECISION OF THE GENERAL ACCOUNTING OFFICE,
AND THAT OFFICE WILL IN ALL PROBABILITY MAKE THE FIRST REVIEW OF ANY
DISPUTES CLAUSE DECISION.  IF THAT AGENCY SHOULD DECIDE THAT THE
DECISION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, IT WOULD APPEAR
THAT THE CONTRACTOR WOULD HAVE NO REDRESS.  FURTHERMORE, THE GENERAL
ACCOUNTING OFFICE IS A PART OF THE LEGISLATIVE DEPARTMENT OF OF THE
GOVERNMENT.  . . . IF THIS AGENCY IS MADE ANOTHER COURT OF CLAIMS, IN A
SENSE IT BECOMES A JUDGE AND JURY AND A PROSECUTOR."  ID., AT 97.  MR.
DAHLING THEREFORE SUPPORTED GAO'S BILL BECAUSE IT DID "NOT GRANT
JUDICIAL POWER TO THE GENERAL ACCOUNTING OFFICE."  ID., AT 98.  CHARLES
MAECHLING, JR., A REPRESENTATIVE OF THE RADIO-ELECTRONICS-TELEVISION
MANUFACTURERS ASSOCIATION, ECHOED THIS VIEW. 

"UNDER S. 24, HOWEVER, THE SCOPE AND POWERS OF THE GENERAL
ACCOUNTING OFFICE ARE VASTLY ENLARGED, AND THIS AGENCY OF THE
GOVERNMENT, WHICH HAS HERETOFORE EXERCISED PRINCIPALLY INVESTIGATORY
AND AUDIT FUNCTIONS, BECOMES CLOTHED WITH POWERS OF A JUDICIAL NATURE. 
S. 24 APPEARS TO SET UP THE GENERAL ACCOUNTING OFFICE AS A THIRD
ADMINISTRATIVE TIER OF REVIEW IN GOVERNMENT CONTRACT DISPUTES."  ID.,
AT 105.  SIMILARLY, THE AMERICAN MERCHANT MARINE INSTITUTE SUBMITTED A
STATEMENT OBJECTING TO H.R. 1839 

"IN SO FAR AS IT ESTABLISHES THE GENERAL ACCOUNTING OFFICE AS A SORT
OF INTERMEDIATE OR

"FLOATING" COURT AND VESTS IT WITH EXPRESS STATUTORY AUTHORITY TO SET
ASIDE (AN

  ADMINISTRATIVE) DECISION MERELY BECAUSE ITS ADMINISTRATIVE
OFFICERS IN THEIR OPINION CONSIDER

  THE DECISION NOT TO BE SUPPORTED BY SUBSTANTIAL EVIDENCE.  ON THE
OTHER HAND, WE FULLY AGREE

  THAT A DECISION OF A CONTRACTING OFFICER OR, UPON APPEAL, OF THE
HEAD OF THE CONTRACTING

  AGENCY, SHOULD BE SUBJECT TO JUDICIAL REVIEW AND REVERSAL BY THE
COURTS . . . . THIS JUDICIAL

  FUNCTION, HOWEVER, SHOULD NOT BE SHARED WITH OR OTHERWISE VESTED
IN THE GENERAL ACCOUNTING

  OFFICE . . . . THE LITERAL EFFECT OF S. 24 APPEARS TO BE THAT
ONCE THE GENERAL ACCOUNTING

  OFFICE MAY HAVE FOUND THE DECISION TO BE NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE, IT MAY NOT

  THEREAFTER BE PLEADED IN COURT EITHER BY THE CONTRACTING PARTY OR
THE GOVERNMENT AS LIMITING

  THE SCOPE OF JUDICIAL REVIEW TO THAT PROVIDED FOR BY THE DISPUTES
CLAUSE."  ID., AT 122.  OPPOSITION TO H.R. 1839, THEN, WAS PREMISED ON
THE FEAR THAT ITS REFERENCE TO GAO MIGHT DEPRIVE CONTRACTORS OF ANY
RECOURSE TO THE COURTS.  THAT JUDICIAL REVIEW WAS THE CONTRACTORS' SOLE
CONCERN IS ALSO CLEAR FROM THE POSITION TAKEN BY THE ASSOCIATED GENERAL
CONTRACTORS, ID., AT 61-75, WHICH SUPPORTED H.R. 1839 ON THE GROUND
THAT IT WOULD RESTORE TO CONTRACTORS "THE FUNDAMENTAL RIGHT OF JUDICIAL
REVIEW OF DISPUTES ARISING UNDER GOVERNMENT CONTRACTS."  ID., AT 62. 

THAT DELETION OF THE REFERENCE TO GAO WAS NOT UNDERSTOOD AS DENYING
JUDICIAL REVIEW TO THE GOVERNMENT BECOMES EVIDENT FROM AN EXAMINATION
OF REPRESENTATIVE WILLIS' TESTIMONY ABOUT HIS BILL, H.R. 6946, WHICH
WAS IDENTICAL TO H.R. 1839 EXCEPT THAT IT OMITTED THE WORDS "THE
GENERAL ACCOUNTING OFFICE OR."  ID., AT 31.  HE TESTIFIED THAT THE
"WUNDERLICH DECISION COULD REACT AND HAS REACTED UNFAVORABLY TO THE
GOVERNMENT WHERE THE GOVERNMENT FELT IT WAS THE AGGRIEVED PARTY."  ID.,
15 32.  THE FOLLOWING COLLOQUY THEN OCCURRED: 

     MR. HYDE.  THE ONLY QUESTION THAT OCCURRED TO ME WAS THAT YOU

  MENTIONED THERE MIGHT BE A TIME WHEN THE GOVERNMENT WAS THE

  AGGRIEVED PARTY.  WITH THE PRESENT PROCEDURE, THE GOVERNMENT IS

  NOT LIKELY TO BE THE AGGRIEVED PARTY? 

      MR. WILLIS.  IT COULD BE.  IT COULD VERY WELL BE, BECAUSE
HERE

  YOU ARE DEALING WITH FRAUD, AND THE COURT SAYS THAT IN ORDER TO

  HAVE RELIEF ONE MUST BE GUILTY OF FRAUD.  NOW, A CONTRACTING

  OFFICER WHO HANDS DOWN A DECISION AGAINST THE GOVERNMENT CAN VERY

  ADVERSELY AFFECT THE GOVERNMENT ITSELF, AND THE GOVERNMENT SOME

  OF THESE DAYS MIGHT FIND A DECISION VERY MUCH AGAINST ITSELF. 

  THE DECISION WORKS BOTH WAYS, IN THAT THERE IS NO APPEAL EITHER

  WAY FROM THE HOLDING OF THE CONTRACTING OFFICER UNLESS A SHOWING

  OF FRAUD IS MADE, AND THE GOVERNMENT ITSELF MIGHT BE CAUGHT SOME

  OF THESE DAYS UNDER THIS WUNDERLICH DECISION.  I KNOW OF ONE CASE

  WHEN THE COURT SO RULED. 

.          .          .          . 

     "MR. HYDE.  IF THE CONTRACTING OFFICER MAKES A FINDING, UNDER

  WHAT CIRCUMSTANCES WOULD THE GOVERNMENT BE THE ONE TO MAKE AN

  APPEAL OR WANT TO TAKE AN APPEAL?  WHO WOULD BE THE ONE IN THE

  GOVERNMENT TO SAY, 'WE ARE GOING TO TAKE AN APPEAL'? 

   "MR. WILLIS.  I IMAGINE THE GENERAL ACCOUNTING OFFICE WOULD BE

  INTERESTED, AND THE DEPARTMENT OF JUSTICE AND THE DEPARTMENT OF

  DEFENSE.  SUPPOSE A DISPUTE ARISES . . . AND THEN ON MATTERS OF

  FACT THE CONTRACTING OFFICER HOLDS ONE WAY.  THEN NEITHER SIDE

  HAS RECOURSE UNLESS THERE IS A SHOWING THAT THE CONTRACTING

  OFFICER WAS DISHONEST, WAS GUILTY OF FRAUD, OR INTENDED TO CHEAT

  SOMEONE."  ID., AT 33-34. 

THIS TESTIMONY IS SIGNIFICANT ALSO IN LIGHT OF THE LATER TESTIMONY
OF FRANKLIN M. SCHULTZ, A FORMER LAW PROFESSOR WHO HAD WRITTEN ABOUT
THE PROBLEMS CREATED BY THE WUNDERLICH DECISION.  MR. SCHULTZ EXPRESSED
CONCERN THAT GAO'S SUBSTITUTE BILL DID "NOT SAY SPECIFICALLY THAT AN
APPEAL CAN BE TAKEN BY AN AGGRIEVED CONTRACTOR."  A COMMITTEE MEMBER
THEN ASKED WHETHER THE LANGUAGE OF GAO'S BILL DID "NOT NECESSARILY
INCLUDE BOTH PARTIES."  ID., AT 110.  THE FOLLOWING COLLOQUY ENSUED: 

   MR. SCHULTZ.  YES, AND THAT IS EXACTLY MY POINT.  . . . SEVERAL

  YEARS FROM NOW, IF THE COMPTROLLER GENERAL DECIDES . . . THAT A

  CONTRACTING OFFICER'S DECISION IS NOT SUPPORTED BY SUBSTANTIAL

  EVIDENCE, HE COULD REFUSE PAYMENT, AND IN A COURT ACTION HE COULD

  SAY THAT THIS BILL MEANS THAT IT IS A TWO-WAY STREET, NOT ONLY

  MAY THE CONTRACTOR UPSET THE CONTRACTING OFFICER FOR NOT HAVING

  SUBSTANTIAL EVIDENCE BEHIND THE DECISION, BUT IN THE CASE WHERE

  THE CONTRACTING OFFICER MAKES A DECISION FAVORABLE TO THE

CONTRACTOR THE GAO HAS SIMILAR UPSETTING POWER.  . . .

   .          .          .          . 

     MR. WILLIS.  THIS JUDICIAL REVIEW REFERRED TO IN THAT PASSAGE

  THERE REFERRING TO A REVIEW BY GAO, WHEN GAO HAS BEEN LEFT OUT

DELIBERATELY AS COMPARED TO S. 24? 

     "MR. SCHULTZ.  WELL, THAT IS PERVASIVE, SIR, BUT YOU DO HAVE

  THE TESTIMONY OF MR. FISHER, SPONSORING (GAO'S) BILL . . . SAYING

THAT THE RIGHTS OF CONTRACTORS AND THE GOVERNMENT TO APPEAL

 SHOULD BE COEXTENSIVE.  . . . "  ID., AT 110-111. 

MR. SCHULTZ WENT ON TO SAY, WHAT WAS IMPLICIT IN THE ABOVE COLLOQUY,
THAT HIS OBJECTION WAS NOT TO JUDICIAL REVIEW FOR THE GOVERNMENT, WHICH
HE RECOGNIZED WOULD BE AVAILABLE, BUT TO JUDICIAL REVIEW FOR EITHER THE
GOVERNMENT OR CONTRACTORS ON THE BASIS OF THE "SUBSTANTIAL EVIDENCE"
TEST.  HE INDICATED THAT HIS "OWN PREFERENCE WOULD BE FOR THE LANGUAGE
OF (GAO'S) BILL WITHOUT THE PHRASE 'SUBSTANTIAL EVIDENCE,' ID., AT 113,
AND IN A SUBSEQUENT LETTER TO THE GOVERNMENT NOR CONTRACTORS SHOULD BE
PERMITTED TO RELY UPON THAT STANDARD TO UPSET AN ADMINISTRATIVE
DECISION, ID., AT 118-119. 

THE SUBCOMMITTEE WAS PRESENTED WITH, BUT TOOK NO ACTION UPON, A BILL
PROPOSED BY THE AMERICAN BAR ASSOCIATION THAT WOULD HAVE EXPRESSLY
LIMITED THE RIGHT OF JUDICIAL REVIEW TO CONTRACTORS.  ID., AT 89. 
INSTEAD, THE COMMITTEE REPORTED OUT THE BILL THAT IS NOW THE WUNDERLICH
ACT.  H.R. REP. NO. 1380, 83D CONG., 2D SESS. (1954).  THE REPORT
STATED: 

"THE PURPOSE OF THE PROPOSED LEGISLATION . . . IS TO OVERCOME

  THE EFFECT OF THE SUPREME COURT DECISION . . . UNDER WHICH THE

  DECISIONS OF GOVERNMENT OFFICERS RENDERED PURSUANT TO THE

  STANDARD DISPUTES CLAUSES IN GOVERNMENT CONTRACTS ARE HELD TO BE

  FINAL ABSENT FRAUD ON THE PART OF SUCH GOVERNMENT OFFICERS. 

     " . . . THE PROPOSED LEGISLATION ALSO PRESCRIBES FAIR AND

  UNIFORM STANDARDS FOR THE JUDICIAL REVIEW OF SUCH ADMINISTRATIVE

  DECISIONS IN THE LIGHT OF THE REASONABLE REQUIREMENTS OF THE

  VARIOUS GOVERNMENT DEPARTMENTS AND AGENCIES, OF THE GENERAL

  ACCOUNTING OFFICE AND OF GOVERNMENT CONTRACTORS."  ID., AT 1-2. 

THE REPORT ALSO DISCUSSED THE EFFECT OF THE LEGISLATION ON GAO, IN MUCH
THE SAME TERMS AS HAD THE PRIOR SENATE REPORTS. 

     "THE PROPOSED LEGISLATION, AS AMENDED, WILL NOT ADD TO,
NARROW,

  RESTRICT, OR CHANGE IN ANY WAY THE PRESENT JURISDICTION OF THE

  GENERAL ACCOUNTING OFFICE EITHER IN THE COURSE OF A SETTLEMENT OR

  UPON AUDIT, AND THE LANGUAGE USED IS NOT INTENDED EITHER TO

  CHANGE THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE OR TO

  GRANT ANY NEW JURISDICTION, BUT SIMPLY TO RECOGNIZE THE

  JURISDICTION WHICH THE GENERAL ACCOUNTING OFFICE ALREADY HAS. 

     "THE ELIMINATION OF THE SPECIFIC MENTION OF THE GENERAL

  ACCOUNTING OFFICE FROM THE PROVISIONS OF THE BILL AS AMENDED

  SHOULD NOT BE CONSTRUED AS TAKING AWAY ANY OF THE JURISDICTION OF

  THAT OFFICE.  IT IS INTENDED THAT THE GENERAL ACCOUNTING OFFICE,

  AS WAS ITS PRACTICE, IN REVIEWING A CONTRACT AND CHANGE ORDERS

  FOR THE PURPOSE OF PAYMENT, SHALL APPLY THE STANDARDS OF REVIEW

  THAT ARE GRANTED TO THE COURTS UNDER THIS BILL.  AT THE SAME TIME

  THERE IS NO INTENTION OF SETTING UP THE GENERAL ACCOUNTING OFFICE

  AS A 'COURT OF CLAIMS.'  NOR SHOULD THE ELIMINATION OF THE

  SPECIFIC MENTION OF THE GENERAL ACCOUNTING OFFICE IN THE BILL BE

  CONSTRUED AS LIMITING ITS REVIEW TO THE FRAUDULENT INTENT

  STANDARD PRESCRIBED BY THE WUNDERLICH DECISION."  ID., AT 6-7. 

REPRESENTATIVE GRAHAM STATED ON THE FLOOR OF THE HOUSE THAT THE
COMPTROLLER GENERAL HAD APPROVED THE BILL, AND THE HOUSE PASSED IT
WITHOUT DEBATE.  100 CONG.REC.  5510.  WHEN THE BILL CAME TO THE
SENATE, SENATOR MCCARRAN EXPLAINED THAT 

     "THE PURPOSE OF THE PROPOSED LEGISLATION IS TO OVERCOME THE

  INEQUITABLE EFFECT, UNDER THE DECISION OF THE SUPREME COURT IN

THE WUNDERLICH CASE, OF LANGUAGE IN GOVERNMENT CONTRACTS WHICH

  MAKES THE DECISION OF THE CONTRACTING OFFICER OR THE HEAD OF THE

  AGENCY FINAL, WITH RESPECT TO QUESTIONS OF FACT.  TO PUT IT

  ANOTHER WAY, THE OBJECTIVE OF THIS BILL IS TO PRESERVE THE RIGHT

  OF REVIEW BY THE COURTS IN CASES INVOLVING ACTION BY A

  CONTRACTING OFFICER WHICH IS ARBITRARY, CAPRICIOUS, FRAUDULENT,

  OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH. 

     "THE LANGUAGE OF THE HOUSE BILL, WHILE QUITE DIFFERENT FROM
THE

  LANGUAGE APPROVED IN THE SENATE, IS DESIGNED TO ACCOMPLISH THE

  SAME PURPOSE.  IT IS MY UNDERSTANDING THE DEPARTMENT OF JUSTICE

  TAKES THE VIEW THAT THE HOUSE LANGUAGE WILL ACCOMPLISH THE SAME

  PURPOSE AS THE SENATE LANGUAGE.  IT IS MY FURTHER UNDERSTANDING

  THAT THE COMPTROLLER GENERAL OF THE UNITED STATES HAS EXPRESSED

  COMPLETE SATISFACTION WITH THE HOUSE LANGUAGE, AND HAS DECLARED

  THAT IN HIS OPINION IT WILL ACCOMPLISH THE PURPOSES SOUGHT TO BE

  SERVED BY THE SENATE LANGUAGE."  ID., AT 5717. 

AFTER SENATOR MCCARRAN FURTHER ASSURED THE SENATE THAT GAO WAS
"SATISFIED WITH THE LANGUAGE IN THE HOUSE BILL" AND THAT "OTHERWISE HE
WOULD NOT CARE TO GO ALONG," IBID., A FINAL COLLOQUY OCCURRED: 

     MR. THYE.  AS I UNDERSTAND, THE BILL WAS PASSED BY THE SENATE,

  AND A SIMILAR BILL WAS PASSED BY THE HOUSE.  THE ONLY QUESTION

INVOLVED IS A MODIFICATION OF THE LANGUAGE IN THE SENATE BILL,

  AND THE TWO BILLS AGREE IN THEIR EFFECT, SO TO SPEAK? 

     MR. MCCARRAN.  THAT IS CORRECT. 

     "MR. THYE.  THERE IS NOTHING ELSE OF A LEGISLATIVE NATURE
INVOLVED.  IS THAT CORRECT? 

     MR. MCCARRAN.  THAT IS CORRECT."  ID., AT 5718.  THE SENATE
THEN PASSED THE BILL.  IBID. 

GEOFFREY CREYKE, JR., REARGUED THE CAUSE FOR PETITIONER.  WITH HIM
ON THE BRIEFS WAS JOHN P. WIESE. 

IRVING JAFFE REARGUED THE CAUSE FOR THE UNITED STATES.  ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL GRAY,
SAMUEL HUNTINGTON, AND WALTER H. FLEISCHER. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY EDWARD L.
WRIGHT, BEVERLY C. MOORE, F. TROWBRIDGE VOM BAUR, OVERTON A. CURRIE,
MARSHALL J. DOKE, JR., GILBERT A. CUNEO, GEORGE M. COBURN, ELDON H.
CROWELL, AND JOHN A. MCWHORTER FOR THE AMERICAN BAR ASSOCIATION, AND BY
HAROLD C. PETROWITZ, PRO SE.
..END :



ILLINOIS V. CITY OF MILWAUKEE, 406 U.S. 91 


       ILLINOIS V. CITY OF MILWAUKEE, WISCONSIN, ET AL.

        ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

    NO. 49, ORIG.  ARGUED FEBRUARY 29, 1972-- DECIDED APRIL 24,

           1972 


THE STATE OF ILLINOIS HAS FILED A MOTION FOR LEAVE TO FILE A BILL OF
COMPLAINT AGAINST FOUR WISCONSIN CITIES AND TWO LOCAL SEWERAGE
COMMISSIONS FOR ALLEGEDLY POLLUTING LAKE MICHIGAN.  ILLINOIS SEEKS TO
INVOKE THE COURT'S ORIGINAL JURISDICTION ON THE GROUND THAT THE
DEFENDANTS ARE INSTRUMENTALITIES OF WISCONSIN AND THAT THIS SUIT IS
THEREFORE ONE AGAINST THE STATE THAT MUST BE BROUGHT IN THIS COURT
UNDER ART. III, SEC. 2, CL. 2, OF THE CONSTITUTION WHICH CONFERS
ORIGINAL JURISDICTION ON THE COURT "IN ALL CASES . . . IN WHICH A STATE
SHALL BE A PARTY," AND 28 U.S.C. 1251(A)(1), WHICH PROVIDES THAT THE
COURT SHALL HAVE "ORIGINAL AND EXCLUSIVE JURISDICTION LF ALL
CONTROVERSIES BETWEEN TWO OR MORE STATES . . . . "  UNDER 28 U.S.C.
1251(B)(3) THE COURT HAS "ORIGINAL BUT NOT EXCLUSIVE,"  JURISDICTION OF
ACTIONS BY A STATE AGAINST CITIZENS OF ANOTHER STATE, AND UNDER SEC.
1331(A) A DISTRICT COURT HAS ORIGINAL JURISDICTION "OF ALL CIVIL
ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS $10,000 . . . AND
ARISES UNDER THE CONSTITUTION OR LAWS . . . OF THE UNITED STATES." 
HELD: 

1.  THOUGH WISCONSIN COULD BE JOINED AS A DEFENDANT HERE UNDER
APPROPRIATE PLEADINGS, IT IS NOT MANDATORY THAT IT BE MADE ONE, AND ITS
POLITICAL SUBDIVISIONS ARE NOT "STATES" WITHIN THE MEANING OF 28 U.S.C.
1251(A)(1).  IF THOSE SUBDIVISIONS MAY BE SUED BY ILLINOIS IN A FEDERAL
DISTRICT COURT, THIS COURT'S ORIGINAL JURISDICTION UNDER SEC.
1251(B)(3) IS MERELY PERMISSIBLE, NOT MANDATORY.  PP. 93-98. 

2.  IN THIS CASE THE APPROPRIATE FEDERAL DISTRICT COURT HAS
JURISDICTION UNDER 28 U.S.C. 1331(A) TO GIVE RELIEF AGAINST THE
NUISANCE OF INTERSTATE WATER POLLUTION AND IS THE PROPER FORUM FOR
LITIGATION OF THE ISSUES HERE INVOLVED.  PP. 98-101. 

     (A) THE JURISDICTIONAL-AMOUNT REQUIREMENT OF SEC. 1331(A) IS

  SATISFIED IN THIS ACTION INVOLVING THE PURITY OF INTERSTATE

  WATERS.  P. 98. 

     (B) POLLUTION OF INTERSTATE OR NAVIGABLE WATERS CREATES
ACTIONS

  UNDER THE "LAWS" OF THE UNITED STATES WITHIN THE MEANING OF SEC.

  1331(A), SINCE THE TERM "LAWS" EMBRACES CLAIMS LIKE THE ONE HERE

  INVOLVED FOUNDED ON FEDERAL COMMON LAW AS WELL AS THOSE OF

  STATUTORY ORIGIN.  PP. 99-100. 

     (C) UNDER SEC. 1331(A) A STATE MAY SUE A DEFENDANT OTHER THAN

  ANOTHER STATE IN A DISTRICT COURT.  PP. 100-101. 

3.  FEDERAL COMMON LAW APPLIES TO AIR AND WATER IN THEIR AMBIENT OR
INTERSTATE ASPECTS.  PP. 101-108. 

     (A) THE APPLICATION OF FEDERAL COMMON LAW TO ABATE THE

  POLLUTION OF INTERSTATE OR NAVIGABLE WATERS IS NOT INCONSISTENT

  WITH FEDERAL ENFORCEMENT POWERS UNDER THE WATER POLLUTION CONTROL

  ACT.  PP. 101-104. 

(B) WHILE FEDERAL ENVIRONMENTAL PROTECTION STATUTES MAY BE

  SOURCES OF FEDERAL COMMON LAW, THEY WILL NOT NECESSARILY FORM THE

  OUTER LIMITS OF SUCH LAW.  PP. 103, 107. 

 (C) STATE ENVIRONMENTAL QUALITY STANDARDS ARE RELEVANT BUT NOT

  CONCLUSIVE SOURCES OF FEDERAL COMMON LAW.  P. 107. 

     (D) FEDERAL EQUITY COURTS HAVE A WIDE RANGE OF POWERS TO GRANT

  RELIEF AGAINST POLLUTION OF THIS SORT.  PP. 107-108. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A MOTION BY ILLINOIS TO FILE A BILL OF COMPLAINT UNDER OUR
ORIGINAL JURISDICTION AGAINST FOUR CITIES OF WISCONSIN, THE SEWERAGE
COMMISSION OF THE CITY OF MILWAUKEE, AND THE METROPOLITAN SEWERAGE
COMMISSION OF THE COUNTY OF MILWAUKEE.  THE CAUSE OF ACTION ALLEGED IS
POLLUTION BY THE DEFENDANTS OF LAKE MICHIGAN, A BODY OF INTERSTATE
WATER.  ACCORDING TO PLAINTIFF, SOME 200 MILLION GALLONS OF RAW OR
INADEQUATELY TREATED SEWAGE AND OTHER WASTE MATERIALS ARE DISCHARGED
DAILY INTO THE LAKE IN THE MILWAUKEE AREA ALONE.  PLAINTIFF ALLEGES
THAT IT AND ITS SUBDIVISIONS PROHIBIT AND PREVENT SUCH DISCHARGES, BUT
THAT THE DEFENDANTS DO NOT TAKE SUCH ACTIONS.  PLAINTIFF ASKS THAT WE
ABATE THIS PUBLIC NUISANCE. 

        I 

ARTICLE III, SEC. 2, CL. 2, OF THE CONSTITUTION PROVIDES:  "IN ALL
CASES . . . IN WHICH A STATE SHALL BE PARTY, THE SUPREME COURT SHALL
HAVE ORIGINAL JURISDICTION."  CONGRESS HAS PROVIDED IN 28 U.S.C. 1251
THAT "(A) THE SUPREME COURT SHALL HAVE ORIGINAL AND EXCLUSIVE
JURISDICTION OF:  (1) ALL CONTROVERSIES BETWEEN TWO OR MORE STATES." 

IT HAS LONG BEEN THIS COURT'S PHILOSOPHY THAT "OUR ORIGINAL
JURISDICTION SHOULD BE INVOKED SPARINGLY."  UTAH V. UNITED STATES, 394
U.S. 89, 95.  WE CONSTRUE 28 U.S.C. 1251(A)(1), AS WE DO ART. III, SEC.
2, CL. 2, TO HONOR OUR ORIGINAL JURISDICTION BUT TO MAKE IT OBLIGATORY
ONLY IN APPROPRIATE CASES.  AND THE QUESTION OF WHAT IS APPROPRIATE
CONCERNS, OF COURSE, THE SERIOUSNESS AND DIGNITY OF THE CLAIM; YET
BEYOND THAT IT NECESSARILY INVOLVES THE AVAILABILITY OF ANOTHER FORUM
WHERE THERE IS JURISDICTION OVER THE NAMED PARTIES, WHERE THE ISSUES
TENDERED MAY BE LITIGATED, AND WHERE APPROPRIATE RELIEF MAY BE HAD.  WE
INCLINE TO A SPARING USE OF OUR ORIGINAL JURISDICTION SO THAT OUR
INCREASING DUTIES WITH THE APPELLATE DOCKET WILL NOT SUFFER. 
WASHINGTON V. GENERAL MOTORS CORP., POST., P. 109. 

ILLINOIS PRESSES ITS REQUEST FOR LEAVE TO FILE SAYING THAT THE
AGENCIES NAMED AS DEFENDANTS ARE INSTRUMENTALITIES OF WISCONSIN AND
THEREFORE THAT THIS IS A SUIT AGAINST WISCONSIN WHICH COULD NOT BE
BROUGHT IN ANY OTHER FORUM. 

UNDER OUR DECISIONS THERE IS NO DOUBT THAT THE ACTIONS OF PUBLIC
ENTITIES MIGHT, UNDER APPROPRIATE PLEADINGS, BE ATTRIBUTED TO A STATE
SO AS TO WARRANT A JOINDER OF THE STATE AS PARTY DEFENDANT. 

IN MISSOURI V. ILLINOIS, 180 U.S. 208, MISSOURI INVOKED OUR ORIGINAL
JURISDICTION BY AN ACTION AGAINST THE STATE OF ILLINOIS AND THE
SANITARY DISTRICT OF THE CITY OF CHICAGO, SEEKING AN INJUNCTION TO
RESTRAIN THE DISCHARGE OF RAW SEWAGE INTO THE MISSISSIPPI RIVER.  ON A
DEMURRER TO THE MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT, ILLINOIS
ARGUED THAT THE SANITARY DISTRICT WAS THE PROPER DEFENDANT AND THAT
ILLINOIS SHOULD NOT HAVE BEEN MADE A PARTY.  THAT ARGUMENT WAS
REJECTED: 

"THE CONTENTION . . . SEEMS TO BE THAT, BECAUSE THE MATTERS
COMPLAINED OF IN THE BILL PROCEED AND WILL CONTINUE TO PROCEED FROM THE
ACTS OF THE SANITARY DISTRICT OF CHICAGO, A CORPORATION OF THE STATE OF
ILLINOIS, IT THEREFORE FOLLOWS THAT THE STATE, AS SUCH, IS NOT
INTERESTED IN THE QUESTION, AND IS IMPROPERLY MADE A PARTY. 

     "WE ARE UNABLE TO SEE THE FORCE OF THIS SUGGESTION.  THE BILL

  DOES NOT ALLEGE THAT THE SANITARY DISTRICT IS ACTING WITHOUT OR

IN EXCESS OF LAWFUL AUTHORITY.  THE AVERMENT AND THE CONCEDED

  FACTS ARE THAT THE CORPORATION IS AN AGENCY OF THE STATE TO DO

  THE VERY THINGS WHICH, ACCORDING TO THE THEORY OF THE

  COMPLAINANT'S CASE, WILL RESULT IN THE MISCHIEF TO BE

  APPREHENDED.  IT IS STATE ACTION AND ITS RESULTS THAT ARE

  COMPLAINED OF-- THUS DISTINGUISHING THIS CASE FROM THAT OF

  LOUISIANA V. TEXAS (176 U.S. 1), WHERE THE ACTS SOUGHT TO BE

  RESTRAINED WERE ALLEGED TO BE THOSE OF OFFICERS OR FUNCTIONARIES

  PROCEEDING IN A WRONGFUL AND MALEVOLENT MISAPPLICATION OF THE

  QUARANTINE LAWS OF TEXAS.  THE SANITARY DISTRICT OF CHICAGO IS

  NOT A PRIVATE CORPORATION, FORMED FOR PURPOSES OF PRIVATE GAIN,

  BUT A PUBLIC CORPORATION, WHOSE EXISTENCE AND OPERATIONS ARE

  WHOLLY WITHIN THE CONTROL OF THE STATE. 

     "THE OBJECT OF THE BILL IS TO SUBJECT THIS PUBLIC WORK TO

  JUDICIAL SUPERVISION, UPON THE ALLEGATION THAT THE METHOD OF ITS

  CONSTRUCTION AND MAINTENANCE WILL CREATE A CONTINUING NUISANCE,

DANGEROUS TO THE HEALTH OF A NEIGHBORING STATE AND ITS

INHABITANTS.  SURELY, IN SUCH A CASE, THE STATE OF ILLINOIS WOULD

  HAVE A RIGHT TO APPEAR AND TRAVERSE THE ALLEGATIONS OF THE BILL,

  AND, HAVING SUCH A RIGHT, MIGHT PROPERLY BE MADE A PARTY

  DEFENDANT."  180 U.S.,AT 242. 

IN NEW YORK V. NEW JERSEY, 256 U.S. 296, THE STATE OF NEW YORK
BROUGHT AN ORIGINAL ACTION AGAINST THE STATE OF NEW JERSEY AND THE
PASSAIC VALLEY SEWERAGE COMMISSIONERS, SEEKING AN INJUNCTION AGAINST
THE DISCHARGE OF SEWAGE INTO UPPER NEW YORK BAY.  THE QUESTION WAS
WHETHER THE ACTIONS TO THE SEWAGE AGENCY COULD BE ATTRIBUTED TO NEW
JERSEY SO AS TO MAKE THAT STATE RESPONSIBLE FOR THEM.  THE COURT SAID: 

     "ALSO, FOR THE PURPOSE OF SHOWING THE RESPONSIBILITY OF THE

  STATE OF NEW JERSEY FOR THE PROPOSED ACTION OF THE DEFENDANT, THE

  PASSAIC VALLEY SEWERAGE COMMISSIONERS, THE BILL SETS OUT, WITH

  MUCH DETAIL, THE ACTS OF THE LEGISLATURE OF THAT STATE

  AUTHORIZING AND DIRECTING SUCH ACTION ON THEIR PART. 

     "OF THIS IT IS SUFFICIENT TO SAY THAT THE AVERMENTS OF THE

  BILL, QUITE UNDENIED, SHOW THAT THE DEFENDANT SEWERAGE

  COMMISSIONERS CONSTITUTE SUCH A STATUTORY, CORPORATE AGENCY OF

  THE STATE THAT THEIR ACTION, ACTUAL OR INTENDED, MUST BE TREATED

  AS THAT OF THE STATE ITSELF, AND WE SHALL SO REGARD IT."  256

  U.S.,AT 302. 

THE MOST RECENT CASE IS NEW JERSEY V. NEW YORK, 345 U.S. 369.  THE
ACTION WAS ORIGINALLY BROUGHT BY THE STATE OF NEW JERSEY AGAINST THE
CITY AND STATE OF NEW YORK FOR INJUNCTIVE RELIEF AGAINST THE DIVERSION
OF WATERS FROM DELAWARE RIVER TRIBUTARIES LYING WITHIN NEW YORK STATE. 
THE QUESTION PRESENTED BY THIS DECISION WAS THE RIGHT OF THE CITY OF
PHILADELPHIA ALSO TO INTERVENE IN THE PROCEEDINGS AS A PARTY
PLAINTIFF.  THE ISSUES RAISED WERE BROAD: 

"ALL OF THE PRESENT PARTIES TO THE LITIGATION HAVE FORMALLY OPPOSED
THE MOTION TO INTERVENE ON GROUNDS (1) THAT THE INTERVENTION WOULD
PERMIT A SUIT AGAINST A STATE BY A CITIZEN OF ANOTHER STATE IN
CONTRAVENTION OF THE ELEVENTH AMENDMENT; (2) THAT THE COMMONWEALTH OF
PENNSYLVANIA HAS THE EXCLUSIVE RIGHT TO REPRESENT THE INTEREST OF
PHILADELPHIA AS PARENS PATRIAE; AND (3) THAT INTERVENTION SHOULD BE
DENIED, IN ANY EVENT, AS A MATTER OF SOUND DISCRETION."  345 U.S.,AT
372.  WE DENIED THE CITY OF PHILADELPHIA'S MOTION TO INTERVENE,
SAYING: 

"THE CITY OF PHILADELPHIA REPRESENTS ONLY A PART OF THE CITIZENS OF
PENNSYLVANIA WHO RESIDE IN THE WATERSHED AREA OF THE DELAWARE RIVER AND
ITS TRIBUTARIES AND DEPEND UPON THOSE WATERS.  IF WE UNDERTOOK TO
EVALUATE ALL THE SEPARATE INTERESTS WITHIN PENNSYLVANIA, WE COULD, IN
EFFECT, BE DRAWN INTO AN INTRAMURAL DISPUTE OVER THE DISTRIBUTION OF
WATER WITHIN THE COMMONWEALTH.  . . . 

     "OUR ORIGINAL JURISDICTION SHOULD NOT BE THUS EXPANDED TO THE

  DIMENSIONS OF ORDINARY CLASS ACTIONS.  AN INTERVENOR WHOSE STATE

  IS ALREADY A PARTY SHOULD HAVE THE BURDEN OF SHOWING SOME

  COMPELLING INTEREST IN HIS OWN RIGHT, APART FROM HIS INTEREST IN

  A CLASS WITH ALL OTHER CITIZENS AND CREATURES OF THE STATE, WHICH

  INTEREST IS NOT PROPERLY REPRESENTED BY THE STATE."  345 U.S.,AT

  373. 

WE ADDED: 

     "THE PRESENCE OF NEW YORK CITY IN THIS LITIGATION IS URGED AS
A

  REASON FOR PERMITTING PHILADELPHIA TO INTERVENE.  BUT THE
ARGUMENT MISCONSTRUES NEW YORK

  CITY'S POSITION IN THE CASE.  NEW YORK CITY WAS NOT ADMITTED INTO
THIS LITIGATION AS A MATTER

  OF DISCRETION AT HER REQUEST.  SHE WAS FORCIBLY JOINED AS A
DEFENDANT TO THE ORIGINAL ACTION

  SINCE SHE WAS THE AUTHORIZED AGENT FOR THE EXECUTION OF THE
SOVEREIGN POLICY WHICH THREATENED

  INJURY TO THE CITIZENS OF NEW JERSEY.  BECAUSE OF THIS POSITION
AS A DEFENDANT, SUBORDINATE TO

  THE PARENT STATE AS THE PRIMARY DEFENDANT, SUBORDINATE TO THE
PARENT STATE AS THE PRIMARY

  DEFENDANT, NEW YORK CITY'S POSITION IN THE CASE RAISES NO
PROBLEMS UNDER THE ELEVENTH

  AMENDMENT."  345 U.S.,AT 374-375. 

WE CONCLUDE THAT WHILE, UNDER APPROPRIATE PLEADINGS, WISCONSIN COULD
BE JOINED AS A DEFENDANT IN THE PRESENT CONTROVERSY, IT IS NOT
MANDATORY THAT IT BE MADE ONE. 

IT IS WELL SETTLED THAT FOR THE PURPOSES OF DIVERSITY OF
CITIZENSHIP, POLITICAL SUBDIVISIONS ARE CITIZENS OF THEIR RESPECTIVE
STATES.  /1/  BULLARD V. CITY OF CISCO, 290 U.S. 179; COWLES V. MERCER
COUNTY, 7 WALL.  118, 122.  IF A POLITICAL SUBDIVISION IS A CITIZEN FOR
DIVERSITY PURPOSES, THEN IT WOULD MAKE NO JURISDICTIONAL DIFFERENCE
WHETHER IT WAS THE PLAINTIFF OR DEFENDANT IN SUCH AN ACTION.  THAT
BEING THE CASE, A POLITICAL SUBDIVISION IN ONE STATE WOULD BE ABLE TO
BRING AN ACTION FOUNDED UPON DIVERSITY JURISDICTION AGAINST A POLITICAL
SUBDIVISION OF ANOTHER STATE. 

WE THEREFORE CONCLUDE THAT THE TERM "STATES" AS USED IN 28 U.S.C.
1251(A)(1) SHOULD NOT BE READ TO INCLUDE THEIR POLITICAL SUBDIVISIONS. 
THAT, OF COURSE, DOES NOT MEAN THAT POLITICAL SUBDIVISIONS OF A STATE
MAY NOT BE SUED UNDER THE HEAD OF OUR ORIGINAL JURISDICTION, FOR 28
U.S.C. 1251 PROVIDES THAT "(B) THE SUPREME COURT SHALL HAVE ORIGINAL
BUT NOT EXCLUSIVE JURISDICTION OF:  (3) ALL ACTIONS OR PROCEEDINGS BY A
STATE AGAINST THE CITIZENS OF ANOTHER STATE . . . ." 

IF THE NAMED PUBLIC ENTITIES OF WISCONSIN MAY, HOWEVER, BE SUED BY
ILLINOIS IN A FEDERAL DISTRICT COURT, OUR ORIGINAL JURISDICTION IS NOT
MANDATORY. 

IT IS TO THAT ASPECT OF THE CASE THAT WE NOW TURN. 

        II 

TITLE 28 U.S.C. 1331(A) PROVIDES THAT "THE DISTRICT COURTS SHALL
HAVE ORIGINAL JURISDICTION OF ALL CIVIL ACTIONS WHEREIN THE MATTER IN
CONTROVERSY EXCEEDS THE SUM OR VALUE OF $10,000, EXCLUSIVE OF INTEREST
AND COSTS, AND ARISES UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE
UNITED STATES." 

THE CONSIDERABLE INTERESTS INVOLVED IN THE PURITY OF INTERSTATE
WATERS WOULD SEEM TO PUT BEYOND QUESTION THE JURISDICTIONAL AMOUNT
PROVIDED IN SEC. 1331(A).  SEE GLENWOOD LIGHT & WATER CO. V. MUTUAL
LIGHT, HEAT & POWER CO., 239 U.S. 121; MISSISSIPPI & MISSOURI R. CO. V.
WARD, 2 BLACK 485, 492; RONZIO V. DENVER & R.G.W.R. CO., 116 F.2D 604,
606; C. WRIGHT, THE LAW OF FEDERAL COURTS 117-119 (2D ED. 1970); NOTE,
73 HARV.L.REV.  1369.  THE QUESTION IS WHETHER POLLUTION OF INTERSTATE
OR NAVIGABLE WATERS CREATES ACTIONS ARISING UNDER THE "LAWS" OF THE
UNITED STATES WITHIN THE MEANING OF SEC. 1331(A).  WE HOLD THAT IT
DOES; AND WE ALSO HOLD THAT SEC. 1331(A) INCLUDES SUITS BROUGHT BY A
STATE. 

MR. JUSTICE BRENNAN, SPEAKING FOR THE FOUR MEMBERS OF THIS COURT IN
ROMERO V. INTERNATIONAL TERMINAL OPERATING CO., 358 U.S. 354, 393
(DISSENTING AND CONCURRING), WHO REACHED THE ISSUE, CONCLUDED THAT
"LAWS," WITHIN THE MEANING OF SEC. 1331(A), EMBRACED CLAIMS FOUNDED ON
FEDERAL COMMON LAW: 

"THE CONTENTION CANNOT BE ACCEPTED THAT SINCE PETITIONER'S RIGHTS
ARE JUDICIALLY DEFINED, THEY ARE NOT CREATED BY 'THE LAWS . . . OF THE
UNITED STATES' WITHIN THE MEANING OF SEC. 1331 . . . . IN ANOTHER
CONTEXT, THAT OF STATE LAW, THIS COURT HAS RECOGNIZED THAT THE
STATUTORY WORD 'LAWS' INCLUDES COURT DECISIONS.  THE CONVERSE SITUATION
IS PRESENTED HERE IN THAT FEDERAL COURTS HAVE AN EXTENSIVE
RESPONSIBILITY OF FASHIONING RULES OF SUBSTANTIVE LAW . . . . THESE
RULES ARE AS FULLY 'LAWS' OF THE UNITED STATES AS IF THEY HAD BEEN
ENACTED BY CONGRESS." 

LOWER COURTS HAVE REACHED THE SAME CONCLUSION.  SEE, E.G., MURPHY V.
COLONIAL FEDERAL SAVINGS & LOAN ASSN., 388 F.2D 609, 611-612 (CA2
1967); STOKES V. ADAIR, 265 F.2D 662 (CA4 1959); MATER V. HOLLEY, 200
F.2D 123 (CA5 1952); AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF
JURISDICTION BETWEEN STATE AND FEDERAL COURTS 180-182 (1969). 

JUDGE HARVEY M. JOHNSEN IN TEXAS V. PANKEY, 441 U.2D 236, 240,
STATED THE CONTROLLING PRINCIPLE: 

     "AS THE FIELD OF FEDERAL COMMON LAW HAS BEEN GIVEN NECESSARY

  EXPANSION INTO MATTERS OF FEDERAL CONCERN AND RELATIONSHIP (WHERE

  NO APPLICABLE FEDERAL STATUTE EXISTS, AS THERE DOES NOT HERE),

  THE ECOLOGICAL RIGHTS OF A STATE IN THE IMPROPER IMPAIRMENT OF

  THEM FROM SOURCES OUTSIDE THE STATE'S OWN TERRITORY, NOW WOULD

  AND SHOULD, WE THINK, BE HELD TO BE A MATTER HAVING BASIS AND

  STANDARD IN FEDERAL COMMON LAW AND SO DIRECTLY CONSTITUTING A

  QUESTION ARISING UNDER THE LAWS OF THE UNITED STATES." 

CHIEF JUSTICE LUMBARD, SPEAKING FOR THE PANEL IN IVY BROADCASTING
CO. V. AMERICAN TEL. & TEL. CO., 391 F.2D 486, 492, EXPRESSED THE SAME
VIEW AS FOLLOWS: 

"WE BELIEVE THAT A CAUSE OF ACTION SIMILARLY 'ARISES UNDER'  FEDERAL
LAW IF THE DISPOSITIVE ISSUES STATED IN THE COMPLAINT REQUIRE THE
APPLICATION OF FEDERAL COMMON LAW . . . . THE WORD 'LAWS' IN SEC. 1331
SHOULD BE CONSTRUED TO INCLUDE LAWS CREATED BY FEDERAL JUDICIAL
DECISIONS AS WELL AS BY CONGRESSIONAL LEGISLATION.  THE RATIONALE OF
THE 1875 GRANT OF FEDERAL QUESTION JURISDICTION-- TO INSURE THE
AVAILABILITY OF A FORUM DESIGNED TO MINIMIZE THE DANGER OF HOSTILITY
TOWARD, AND SPECIALLY SUITED TO THE VINDICATION OF, FEDERALLY CREATED
RIGHTS-- IS AS APPLICABLE TO JUDICIALLY CREATED RIGHTS AS TO RIGHTS
CREATED BY STATUTE."     WE SEE NO REASON NOT TO GIVE "LAWS" ITS
NATURAL MEANING, SEE ROMERO V. INTERNATIONAL TERMINAL OPERATING CO.,
SUPRA, AT 393 N. 5 (BRENNAN, J., DISSENTING AND CONCURRING), AND
THEREFORE CONCLUDE THAT SEC. 1331 JURISDICTION WILL SUPPORT CLAIMS
FOUNDED UPON FEDERAL COMMON LAW AS WELL AS THOSE OF A STATUTORY
ORIGIN. 

AS RESPECTS THE POWER OF A STATE TO BRING AN ACTION UNDER SEC.
1331(A), AMES V. KANSAS, 111 U.S. 449, 470-472, IS CONTROLLING.  THERE
KANSAS HAD SUED A NUMBER OF CORPORATIONS IN ITS OWN COURTS AND, SINCE
FEDERAL RIGHTS WERE INVOLVED, THE DEFENDANTS HAD THE CASES REMOVED TO
THE FEDERAL COURT.  KANSAS RESISTED, SAYING THAT THE FEDERAL COURT
LACKED JURISDICTION BECAUSE OF ART. III, SEC. 2, CL. 2, OF THE
CONSTITUTION, WHICH GIVES THIS COURT "ORIGINAL JURISDICTION" IN "ALL
CASES . . . IN WHICH A STATE SHALL BE PARTY."  THE COURT HELD THAT
WHERE A STATE IS SUING PARTIES WHO ARE NOT OTHER STATES, THE ORIGINAL
JURISDICTION OF THIS COURT IS NOT EXCLUSIVE (ID., AT 470) AND THAT
THOSE SUITS "MAY NOW BE BROUGHT IN OR REMOVED TO THE CIRCUIT COURTS
(NOW THE DISTRICT COURTS) WITHOUT REGARD TO THE CHARACTER OF THE
PARTIES."  /2/  IBID.  WE ADHERE TO THAT RULING. 

        III 

CONGRESS HAS ENACTED NUMEROUS LAWS TOUCHING INTERSTATE WATERS.  IN
1899 IT ESTABLISHED SOME SURVEILLANCE BY THE ARMY CORPS OF ENGINEERS
OVER INDUSTRIAL POLLUTION, NOT INCLUDING SEWAGE, RIVERS AND HARBORS ACT
OF MARCH 3, 1899, 30 STAT. 1121, A GRANT OF POWER WHICH WE CONSTRUED IN
UNITED STATES V. REPUBLIC STEEL CORP., 362 U.S. 483, AND IN UNITED
STATES V. STANDARD OIL CO., 384 U.S. 224. 

THE 1899 ACT HAS BEEN REINFORCED AND BROADENED BY A COMPLEX OF LAWS
RECENTLY ENACTED.  THE FEDERAL WATER POLLUTION CONTROL ACT, 62 STAT.
1155, AS AMENDED, 33 U.S.C. 1151, TIGHTENS CONTROL OVER DISCHARGES INTO
NAVIGABLE WATERS SO AS NOT TO LOWER APPLICABLE WATER QUALITY
STANDARDS.  BY THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, 83 STAT.
852, 42 U.S.C. 4321 ET SEQ., CONGRESS "AUTHORIZES AND DIRECTS"  THAT
"THE POLICIES, REGULATIONS, AND PUBLIC LAWS OF THE UNITED STATES SHALL
BE INTERPRETED AND ADMINISTERED IN ACCORDANCE WITH THE POLICIES SET
FORTH IN THIS ACT" AND THAT "ALL AGENCIES OF THE FEDERAL GOVERNMENT
SHALL . . . IDENTIFY AND DEVELOP METHODS AND PROCEDURES . . . WHICH
WILL INSURE THAT PRESENTLY UNQUANTIFIED ENVIRONMENTAL AMENITIES AND
VALUES MAY BE GIVEN APPROPRIATE CONSIDERATION IN DECISIONMAKING ALONG
WITH ECONOMIC AND TECHNICAL CONSIDERATIONS."  SEC. 102, 42 U.S.C.
4332.  CONGRESS HAS EVINCED INCREASING CONCERN WITH THE QUALITY OF THE
AQUATIC ENVIRONMENT AS IT AFFECTS THE CONVERSION AND SAFEGUARDING OF
FISH AND WILDLIFE RESOURCES.  SEE, E.G., FISH AND WILDLIFE ACT OF 1956,
70 STAT. 1119, 16 U.S.C. 742A; THE ACT OF SEPT. 22, 1959, 73 STAT. 642,
AUTHORIZING RESEARCH IN MIGRATORY MARINE GAME FISH, 16 U.S.C. 760E; AND
THE FISH AND WILDLIFE COORDINATION ACT, 48 STAT. 401, AS AMENDED, 16
U.S.C. 661. 

BUTTRESSED BY THESE NEW AND EXPANDING POLICIES, THE CORPS OF
ENGINEERS HAS ISSUED NEW RULES AND REGULATIONS GOVERNING PERMITS FOR
DISCHARGES OR DEPOSITS INTO NAVIGABLE WATERS.  36 FED.REG.  6564 ET
SEQ. 

THE FEDERAL WATER POLLUTION CONTROL ACT IN SEC. 1(B) DECLARES THAT
IT IS FEDERAL POLICY "TO RECOGNIZE, PRESERVE, AND PROTECT THE PRIMARY
RESPONSIBILITIES AND RIGHTS OF THE STATES IN PREVENTING AND CONTROLLING
WATER POLLUTION."  BUT THE ACT MAKES CLEAR THAT IT IS FEDERAL, NOT
STATE, LAW THAT IN THE END CONTROLS THE POLLUTION OF INTERSTATE OR
NAVIGABLE WATERS.  /3/  WHILE THE STATES ARE GIVEN TIME TO ESTABLISH
WATER QUALITY STANDARDS, SEC. 10(C)(1), IF A STATE FAILS TO DO SO THE
FEDERAL ADMINISTRATOR /4/  PROMULGATES ONE.  SEC. 10(C)(2).  SECTION
10(A) MAKES POLLUTION OF INTERSTATE OR NAVIGABLE WATERS SUBJECT "TO
ABATEMENT" WHEN IT "ENDANGERS THE HEALTH OR WELFARE OF ANY PERSONS." 
THE ABATEMENT THAT IS AUTHORIZED FOLLOWS A LONG-DRAWN-OUT PROCEDURE
UNNECESSARY TO RELATE HERE.  IT USES THE CONFERENCE PROCEDURE, HOPING
FOR AMICABLE SETTLEMENTS.  BUT IF NONE IS REACHED, THE FEDERAL
ADMINISTRATOR MAY REQUEST THE ATTORNEY GENERAL TO BRING SUIT ON BEHALF
OF THE UNITED STATES FOR ABATEMENT OF THE POLLUTION.  SEC. 10(G). 

THE REMEDY SOUGHT BY ILLINOIS IS NOT WITHIN THE PRECISE SCOPE OF
REMEDIES PRESCRIBED BY CONGRESS.  YET THE REMEDIES WHICH CONGRESS
PROVIDES ARE NOT NECESSARILY THE ONLY FEDERAL REMEDIES AVAILABLE.  "IT
IS NOT UNCOMMON FOR FEDERAL COURTS TO FASHION FEDERAL LAW WHERE FEDERAL
RIGHTS ARE CONCERNED."  TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448,
457.  WHEN WE DEAL WITH AIR AND WATER IN THEIR AMBIENT OR INTERSTATE
ASPECTS, THERE IS A FEDERAL COMMON LAW, /5/  AS TEXAS V. PANKEY, 441
F.2D 236, RECENTLY HELD. 

THE APPLICATION OF FEDERAL COMMON LAW TO ABATE A PUBLIC NUISANCE IN
INTERSTATE OR NAVIGABLE WATERS IS NOT INCONSISTENT WITH THE WATER
POLLUTION CONTROL ACT.  CONGRESS PROVIDED IN SEC. 10(B) OF THAT ACT
THAT, SAVE AS A COURT MAY DECREE OTHERWISE IN AN ENFORCEMENT ACTION,
"STATE AND INTERSTATE ACTION TO ABATE POLLUTION OF INTERSTATE OR
NAVIGABLE WATERS SHALL BE ENCOURAGED AND SHALL NOT . . . BE DISPLACED
BY FEDERAL ENFORCEMENT ACTION." 

THE LEADING AIR CASE IS GEORGIA V. TENNESSEE COPPER CO., 206 U.S.
230, WHERE GEORGIA FILED AN ORIGINAL SUIT IN THIS COURT AGAINST A
TENNESSEE COMPANY WHOSE NOXIOUS GASES WERE CAUSING A WHOLESALE
DESTRUCTION OF FORESTS, ORCHARDS, AND CROPS IN GEORGIA.  THE COURT
SAID: 

     "THE CAUTION WITH WHICH DEMANDS OF THIS CORT, ON THE PART OF A

  STATE, FOR RELIEF FROM INJURIES ANALOGOUS TO TORTS, MUST BE

  EXAMINED, AS DWELT UPON IN MISSOURI V. ILLINOIS, 200 U.S. 496,

 420, 521.  BUT IT IS PLAIN THAT SOME SUCH DEMANDS MUST BE

  RECOGNIZED, IF THE GROUNDS ALLEGED ARE PROVED.  WHEN THE STATES

  BY THEIR UNION MADE THE FORCIBLE ABATEMENT OF OUTSIDE NUISANCES

  IMPOSSIBLE TO EACH, THEY DID NOT THEREBY AGREE TO SUBMIT TO

  WHATEVER MIGHT BE DONE.  THEY DID NOT RENOUNCE THE POSSIBILITY OF

  MAKING REASONABLE DEMANDS ON THE GROUND OF THEIR STILL REMAINING

  QUASI-SOVEREIGN INTERESTS; AND THE ALTERNATIVE TO FORCE IS A SUIT

  IN THIS COURT.  MISSOURI V. ILLINOIS, 180 U.S. 208, 241."  206

  U.S.,AT 237. 

THE NATURE OF THE NUISANCE WAS DESCRIBED AS FOLLOWS: 

     "IT IS A FAIR AND REASONABLE DEMAND ON THE PART OF A SOVEREIGN

  THAT THE AIR OVER ITS TERRITORY SHOULD NOT BE POLLUTED ON A GREAT

  SCALE BY SULPHUROUS ACID GAS, THAT THE FORESTS ON ITS MOUNTAINS,

  BE THEY BETTER OR WORSE, AND WHATEVER DOMESTIC DESTRUCTION THEY

  HAVE SUFFERED, SHOULD NOT BE FURTHER DESTROYED OR THREATENED BY

  THE ACT OF PERSONS BEYOND ITS CONTROL, THAT THE CROPS AND

  ORCHARDS ON ITS HILLS SHOULD NOT BE ENDANGERED FROM TH THE SAME

 SOURCE.  IF ANY SUCH DEMAND IS TO BE ENFORCED THIS MUST BE, NOT

  WITHSTANDING THE HESITATION THAT WE MIGHT FEEL IF THE SUIT WERE

  BETWEEN PRIVATE PARTIES, AND THE DOUBT WHETHER FOR THE INJURIES

  WHICH THEY MIGHT BE SUFFERING TO THEIR PROPERTY THEY SHOULD NOT

  BE LEFT TO AN ACTION AT LAW."  ID., AT 238. 

OUR DECISIONS CONCERNING INTERSTATE WATERS CONTAIN THE SAME THEME. 
RIGHTS IN INTERSTATE STREAMS, LIKE QUESTIONS OF BOUNDARIES, "HAVE BEEN
RECOGNIZED AS PRESENTING FEDERAL QUESTIONS."  HINDERLIDER V. LA PLATA
CO., 304 U.S. 92, 110.  THE QUESTION OF APPOINTMENT OF INTERSTATE
WATERS IS A QUESTION OF "FEDERAL COMMON LAW" UPON WHICH STATE STATUTES
OR DECISIONS ARE NOT CONCLUSIVE.  /7/  IBID. 

IN SPEAKING OF THE PROBLEM OF APPORTIONING THE WATERS OF AN
INTERSTATE STREAM, THE COURT SAID IN KANSAS V. COLORADO, 206 U.S. 46,
98, THAT "THROUGH THESE SUCCESSIVE DISPUTES AND DECISIONS THIS COURT IS
PRACTICALLY BUILDING UP WHAT MAY NOT IMPROPERLY BE CALLED INTERSTATE
COMMON LAW."  AND SEE TEXAS V. NEW JERSEY, 379 U.S. 674 (ESCHEAT OF
INTANGIBLE PERSONAL PROPERTY), TEXAS V. FLORIDA, 306 U.S. 398, 405
(SUIT BY BILL IN THE NATURE OF INTERPLEADER TO DETERMINE WAS TRUE
DOMICILE OF A DECEDENT AS THE BASIS OF DEATH TAXES). 

EQUITABLE APPORTIONMENT OF THE WATERS OF AN INTERSTATE STREAM HAS
OFTEN BEEN MADE UNDER THE HEAD OF OUR ORIGINAL JURISDICTION.  NEBRASKA
V. WYOMING, 325 U.S. 589; KANSAS V. COLORADO, SUPRA; CF. ARIZONA V.
CALIFORNIA, 373 U.S. 546, 562.  THE APPLICABLE FEDERAL COMMON LAW
DEPENDS ON THE FACTS PECULIAR TO THE PARTICULAR CASE. 

"PRIORITY OF APPROPRIATION IS THE GUIDING PRINCIPLE.  BUT PHYSICAL
AND CLIMATIC CONDITIONS, THE CONSUMPTIVE USE OF WATER IN THE SEVERAL
EXTENT OF ESTABLISHED USES, THE AVAILABILITY OF STORAGE WATER, THE
PRACTICAL EFFECT OF WASTEFUL USES ON DOWNSTREAM AREAS, THE DAMAGE TO
UPSTREAM AREAS AS COMPARED TO THE BENEFITS TO DOWNSTREAM AREAS IF A
LIMITATION IS IMPOSED ON THE FORMER-- THESE ARE ALL RELEVANT FACTORS. 
THEY ARE MERELY AN ILLUSTRATIVE, NOT AN EXHAUSTIVE CATALOGUE.  THEY
INDICATE THE NATURE OF THE PROBLEM OF APPORTIONMENT AND THE DELICATE
ADJUSTMENT OF INTERESTS WHICH MUST BE MADE."  325 U.S.AT 618. 

WHEN IT COMES TO WATER POLLUTION TIS COURT HAS SPOKEN IN TERMS OF "A
PUBLIC NUISANCE,"  /8/  NEW YORK V. NEW JERSEY, 256 U.S.,AT 313; NEW
JERSEY V. NEW YORK CITY, 283 U.S. 473, 481, 482.  IN MISSOURI V.
ILLINOIS, 200 U.S. 496, 520-521, THE COURT SAID, "IT MAY BE IMAGINED
THAT A NUISANCE MIGHT BE CREATED BY A STATE UPON A NAVIGABLE RIVER LIKE
THE DANUBE, WHICH WOULD AMOUNT TO A CASUS BELLI FOR A STATE LOWER DOWN,
UNLESS REMOVED.  IF SUCH A NUISANCE WOULD BE RESOLVED BY THE MORE
PEACEFUL MEANS OF A SUIT IN THIS COURT." 

IT MAY HAPPEN THAT NEW FEDERAL LAWS AND NEW FEDERAL REGULATIONS MAY
IN TIME PRE-EMPT THE FIELD OF FEDERAL COMMON LAW OF NUISANCE.  BUT
UNTIL THAT COMES TO PASS, FEDERAL COURTS WILL BE EMPOWERED TO APPRAISE
THE EQUITIES OF THE SUITS ALLEGING CREATION OF A PUBLIC NUISANCE BY
WATER POLLUTION.  WHILE FEDERAL LAW GOVERNS, /9/  CONSIDERATION OF
STATE STANDARDS MAY BE RELEVANT.  CF. CONNECTICUT V. MASSACHUSETTS, 282
U.S. 660, 670; KANSAS V. COLORADO, 185 U.S. 125, 146-147.  THUS, A
STATE WITH HIGH WATER-QUALITY STANDARDS MAY WELL ASK THAT ITS STRICT
STANDARDS BE HONORED AND THAT IT NOT BE COMPELLED TO LOWER ITSELF TO
THE MORE DEGRADING STANDARDS OF A NEIGHBOR.  THERE ARE NO FIXED RULES
THAT GOVERN; THESE WILL BE EQUITY SUITS IN WHICH THE INFORMED JUDGMENT
OF THE CHANCELLOR WILL LARGELY GOVERN. 

WE DENY, WITHOUT PREJUDICE, THE MOTION FOR LEAVE TO FILE.  WHILE
THIS ORIGINAL SUIT NORMALLY MIGHT BE THE APPROPRIATE VEHICLE FOR
RESOLVING THIS CONTROVERSY, WE EXERCISE OUR DISCRETION TO REMIT THE
PARTIES TO AN APPROPRIATE DISTRICT COURT /10/  WHOSE POWERS ARE
ADEQUATE TO RESOLVE THE ISSUES. 

           SO ORDERED. 

/1/  IT IS EQUALLY WELL SETTLED THAT A SUIT BETWEEN A STATE AND A
CITIZEN OF ANOTHER STATE IS NOT A SUIT BETWEEN CITIZENS OF DIFFERENT
STATES FOR THE PURPOSES OF DIVERSITY OF CITIZENSHIP JURISDICTION. 
POSTAL TELEGRAPH CABLE CO. V. ALABAMA, 155 U.S. 482, 487. 

/2/  SEE ALSO H.R. REP. NO. 308, 80TH CONG. 1ST SESS., A 104 (1947);
"THE ORIGINAL JURISDICTION CONFERRED ON THE SUPREME COURT BY ARTICLE 3,
PROVISION ALONE.  CONGRESS MAY PROVIDE FOR OR DENY EXCLUSIVENESS." 

/3/  THE CONTRARY INDICATION IN OHIO V. WYANDOTTE CHEMICALS CORP.,
401 U.S. 493, 498 N. 3, WAS BASED ON THE PREOCCUPATION OF THAT
LITIGATION WITH PUBLIC NUISANCE UNDER OHIO LAW, NOT THE FEDERAL COMMON
LAW WHICH WE NOW HOLD IS AMPLE BASIS FOR FEDERAL JURISDICTION UNDER 28
U.S.C. 1331(A). 

/4/  THE POWERS GRANTED THE SECRETARY OF THE INTERIOR UNDER THE
FEDERAL WATER QUALITY ACT OF 1965, 79 STAT. 903, WERE ASSIGNED BY THE
PRESIDENT TO THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY
PURSUANT TO REORGANIZATION PLAN NO. 3 OF 1970.  SEE 35 FED.REG. 
15623. 

/5/  WHILE THE VARIOUS FEDERAL ENVIRONMENTAL PROTECTION STATUTES
WILL NOT NECESSARILY MARK THE OUTER BOUNDS OF THE FEDERAL COMMON LAW,
THEY MAY PROVIDE USEFUL GUIDELINES IN FASHIONING SUCH RULES OF
DECISION.  WHAT WE SAID IN ANOTHER CONNECTION IN TEXTILE WORKERS V.
LINCOLN MILLS, 353 U.S. 448, 456-457, IS RELEVANT HERE: 

"THE QUESTION THEN IS, WHAT IS THE SUBSTANTIVE LAW TO BE APPLIED IN
SUITS UNDER SEC. 301(A)?  WE CONCLUDE THAT THE SUBSTANTIVE LAW TO APPLY
IN SUITS UNDER SEC. 301(A) IS FEDERAL LAW, WHICH THE COURTS MUST
FASHION FROM THE POLICY OF OUR NATIONAL LABOR LAWS.  THE LABOR
MANAGEMENT RELATIONS ACT EXPRESSLY FURNISHES SOME SUBSTANTIVE LAW.  IT
POINTS OUT WHAT THE PARTIES MAY OR MAY NOT DO IN CERTAIN SITUATIONS. 
OTHER PROBLEMS WILL LIE IN THE PENUMBRA OF EXPRESS STATUTORY MANDATES. 
SOME WILL LACK EXPRESS STATUTORY SANCTION BUT WILL BE SOLVED BY LOOKING
AT THE POLICY OF THE LEGISLATION AND FASHIONING A REMEDY THAT WILL
EFFECTUATE THAT POLICY.  THE RANGE OF JUDICIAL INVENTIVENESS WILL BE
DETERMINED BY THE NATURE OF THE PROBLEM.  FEDERAL INTERPRETATION OF THE
FEDERAL LAW WILL GOVERN, NOT STATE LAW.  BUT STATE LAW, IF COMPATIBLE
WITH THE PURPOSE OF SEC. 301, MAY BE RESORTED TO IN ORDER TO FIND THE
RULE THAT WILL BEST EFFECTUATE THE FEDERAL POLICY.  ANY STATE LAW
APPLIED, HOWEVER, WILL BE ABSORBED AS FEDERAL LAW AND WILL NOT BE AN
INDEPENDENT SOURCE OF PRIVATE RIGHTS."  SEE ALSO WOODS & REED, THE
SUPREME COURT AND INTERSTATE ENVIRONMENTAL QUALITY; SOME NOTES ON THE
WYANDOTTE CASE, 12 ARIZ.L.REV.  691, 713-714; NOTE, 56 VA.L.REV.  458. 

/6/  THUS, IT IS NOT ONLY THE CHARACTER OF THE PARTIES THAT REQUIRES
US TO APPLY FEDERAL LAW.  SEE GEORGIA V. TENNESSEE COPPER CO., 206 U.S.
230, 237; CF. WISCONSIN V. PELICAN INS. CO., 127 U.S. 265, 289; THE
FEDERALIST NO. 80 (A. HAMILTON).  AS MR. JUSTICE HARLAN INDICATED FOR
THE COURT IN BANCO NACIONAL DE CUBA V. SABBATINO, 376 U.S. 398, 421
427, WHERE THERE IS AN OVERRIDING FEDERAL INTEREST IN THE NEED FOR A
UNIFORM RULE OF DECISION OR WHERE THE CONTROVERSY TOUCHES BASIC
INTERESTS OF FEDERALISM, WE HAVE FASHIONED FEDERAL COMMON LAW.  SEE
ALSO CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363; D'OENCH,
DUHME & CO. V. FEDERAL DEPOSIT INS. CORP., 315 U.S. 447; C. WRIGHT, THE
LAW OF FEDERAL COURTS 249 (2D ED 1970); WOODS & REED, SUPRA, N. 5, AT
703-713; NOTE, 50 TEXAS L.REV.  183.  CERTAINLY THESE SAME DEMANDS FOR
APPLYING FEDERAL LAW ARE PRESENT IN THE POLLUTION OF A BODY OF WATER
SUCH AS LAKE MICHIGAN BOUNDED, AS IT IS, BY FOUR STATES.     /7/  THOSE
WHO MAINTAIN THAT STATE LAW GOVERNS OVERLOOK THE FACT THAT THE
HINDERLIDER CASE WAS WRITTEN BY MR. JUSTICE BRANDEIS WHO ALSO WROTE FOR
THE COURT IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, THE TWO CASES BEING
DECIDED THE SAME DAY. 

/8/ IN NORTH DAKOTA V. MINNESOTA, 263 U.S. 365, 374, THE COURT
SAID: 

"WHERE ONE STATE BY A CHANGE IN ITS METHOD OF DRAINING WATER FROM
LANDS WITHIN ITS BORDER, INCREASES THE FLOW INTO AN INTERSTATE STREAM,
SO THAT ITS NATURAL CAPACITY IS GREATLY EXCEEDED AND THE WATER IS
THROWN UPON THE FARMS OF ANOTHER STATE, THE LATTER STATE HAS SUCH AN
INTEREST AS QUASI-SOVEREIGN IN THE COMFORT, HEALTH AND PROSPERITY OF
ITS FARM OWNERS THAT RESORT MAY BE HAD TO THIS COURT FOR RELIEF.  IT IS
THE CREATION OF A PUBLIC NUISANCE OF SIMPLE TYPE FOR WHICH A STATE MAY
PROPERLY ASK AN INJUNCTION." 

/9/  "FEDERAL COMMON LAW AND NOT THE VARYING COMMON LAW OF THE
INDIVIDUAL STATE IS, WE THINK, ENTITLED AND NECESSARY TO BE RECOGNIZED
AS A BASIS FOR DEALING IN UNIFORM STANDARD WITH THE ENVIRONMENTAL
RIGHTS OF A STATE AGAINST IMPROPER IMPAIRMENT BY SOURCES OUTSIDE ITS
DOMAIN.  THE MORE WOULD THIS SEEM TO BE IMPERATIVE IN THE PRESENT ERA
OF GROWING CONCERN ON THE PART OF A STATE ABOUT ITS ECOLOGICAL
CONDITIONS AND IMPAIRMENTS OF THEM.  IN THE OUTSIDE SOURCES OF SUCH
IMPAIRMENT, MORE CONFLICTING DISPUTES, INCREASING ASSERTIONS AND
PROLIFERATING CONTENTIONS WOULD SEEM TO BE INEVITABLE.  UNTIL THE FIELD
HAS BEEN MADE THE SUBJECT OF COMPREHENSIVE LEGISLATION OR AUTHORIZED
ADMINISTRATIVE STANDARDS, ONLY A FEDERAL COMMON LAW BASIS CAN PROVIDE
AN ADEQUATE MEANS FOR DEALING WITH SUCH CLAIMS AS ALLEGED FEDERAL
RIGHTS.  AND THE LOGIC AND PRACTICALITY OF REGARDING SUCH CLAIMS AS
BEING ENTITLED TO BE ASSERTED WITHIN THE FEDERAL-QUESTION JURISDICTION
OF SEC. 1331(A) WOULD SEEM TO BE SELF-EVIDENT."  TEXAS V. PANKEY, 441
F.2D 236, 241-242. 

/10/  THE RULE OF DECISION BEING FEDERAL, THE "ACTION . . . MAY BE
BROUGHT ONLY IN THE JUDICIAL DISTRICT WHERE ALL DEFENDANTS RESIDE, OR
IN WHICH THE CLAIM AROSE," 28 U.S.C. 1391(B), THEREBY GIVING
FLEXIBILITY TO THE CHOICE OF VENUE.  SEE ALSO 28 U.S.C. 1407. 

WHATEVER MAY BE A MUNICIPALITY'S SOVEREIGN IMMUNITY IN ACTIONS FOR
DAMAGES, SEE VAN ALSTYNE, GOVERNMENTAL TORT LIABILITY:  A DECADE OF
CHANGE, 1966 U.ILL.L.F. 919, 944-948; NOTE, 4 SUFFOLK L.REV.  832
(1970).  ACTIONS SEEKING INJUNCTIVE RELIEF STAND ON A DIFFERENT
FOOTING.  THE CASES ARE VIRTUALLY UNANIMOUS IN HOLDING THAT
MUNICIPALITIES ARE SUBJECT TO INJUNCTIONS TO ABATE NUISANCES.  SEE
CASES COLLECTED IN 17 E.MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS
49.51 ET SEQ. (3D REV. ED. 1968).  SEE ALSO WIS. STAT. ANN. SEC.
59.96(B)(6) (1957) AS RESPECTS THE SUABILITY OF METROPOLITAN SEWERAGE
COMMISSIONS. 

WHILE THE KIND OF EQUITABLE RELIEF TO BE ACCORDED LIES IN THE
DISCRETION OF THE CHANCELLOR (HARRISONVILLE V. DICKEY CLAY MFG. CO.,
289 U.S. 334), A STATE THAT CAUSES A PUBLIC NUISANCE IN A FEDERAL
DISTRICT COURT HAVING JURISDICTION: 

"IT IS GENERALLY HELD THAT A MUNICIPALITY, LIKE A PRIVATE
INDIVIDUAL, MAY BE ENJOINED FROM MAINTAINING A NUISANCE.  THUS IN A
PROPER CASE A MUNICIPAL CORPORATION WILL BE RESTRAINED BY INJUNCTION
FROM CREATING A NUISANCE ON PRIVATE PROPERTY, AS BY THE DISCHARGE OF
SEWAGE OR POISONOUS GASES THEREON, OR, IN SOME JURISDICTIONS, BY THE
OBSTRUCTION OF DRAINAGE OF WATERS, OR BY DISCHARGING SEWAGE OR FILTH
INTO A STREAM AND POLLUTING THE WATER TO THE DAMAGE OF LOWER RIPARIAN
OWNERS, OR BY DUMPING GARBAGE OR REFUSE, OR BY OTHER ACTS.  LIKEWISE, A
MUNICIPALITY MAY BE ENJOINED FROM CREATING OR OPERATING A NUISANCE,
WHETHER THE MUNICIPALITY IS ACTING IN A GOVERNMENTAL OR PROPRIETARY
CAPACITY, IMPAIRING PROPERTY RIGHTS.  AND, IF A NUISANCE IS ESTABLISHED
CAUSING IRREPARABLE INJURY FOR WHICH THERE IS NO ADEQUATE REMEDY AT LAW
IT MAY BE ENJOINED IRRESPECTIVE OF THE RESULTING DAMAGE OR INJURY TO
THE MUNICIPALITY."  17 MCQUILLEN, SUPRA, 49.55. 

FRED F. HERZOG ARGUED THE CAUSE FOR PLAINTIFF.  WITH HIM ON THE
BRIEFS WAS WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS. 

HARRY G. SLATER ARGUED THE CAUSE FOR DEFENDANTS.  WITH HIM ON THE
BRIEF FOR DEFENDANT CITY OF MILWAUKEE WERE JOHN J. FLEMING AND RICHARD
F. MARUSZEWSKI.  MICHAEL S. FISHER AND BURTON A. SCOTT FILED A BRIEF
FOR DEFENDANT CITY OF KENOSHA.  JACK HARVEY, EDWARD A. KRENZKE, AND
LOUIS J. ROSHAR FILED A BRIEF FOR DEFENDANT CITY OF RACINE.  MR.
FLEMING AND HARVEY G. ODENBRETT FILED A BRIEF FOR DEFENDANT SEWERAGE
COMMISSION OF THE CITY OF MILWAUKEE.  EWALD L. MOERKE, JR., FILED A
BRIEF FOR DEFENDANT METROPOLITAN SEWERAGE COMMISSION OF THE COUNTY OF
MILWAUKEE. 
..END :













WASHINGTON V. GENERAL MOTORS CORP., 406 U.S. 109 


       WASHINGTON ET AL. V. GENERAL MOTORS CORP. ET AL.

        ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

    NO. 45, ORIG.  ARGUED FEBRUARY 28-29, 1972-- DECIDED APRIL

           24, 1972 


EIGHTEEN STATES HAVE FILED A MOTION FOR LEAVE TO FILE A BILL OF
COMPLAINT AGAINST THE NATION'S FOUR MAJOR AUTOMOBILE MANUFACTURERS AND
THEIR TRADE ASSOCIATION, ALLEGING A CONSPIRACY IN VIOLATION OF THE
FEDERAL ANTITRUST LAWS, A COMMON-LAW CONSPIRACY IN RESTRAINT OF TRADE
TO RESTRAIN THE DEVELOPMENT OF MOTOR VEHICLE AIR POLLUTION CONTROL
EQUIPMENT, AND A PUBLIC NUISANCE IN VIOLATION OF STATE AND FEDERAL
COMMON LAW.  THOSE STATES SEEK AN INJUNCTION, INTER ALIA, REQUIRING THE
DEFENDANTS TO ACCELERATE A RESEARCH AND DEVELOPMENT PROGRAM TO PRODUCE
EFFECTIVE POLLUTION CONTROL DEVICES AND POLLUTION-FREE ENGINES AND TO
INSTALL ANTI-POLLUTION EQUIPMENT IN ALL VEHICLES THEY MANUFACTURED
DURING THE ALLEGED CONSPIRACY.  HELD:  THOUGH THE COURT HAS ORIGINAL
BUT NOT EXCLUSIVE JURISDICTION, IT EXERCISES DISCRETION TO AVOID
IMPAIRING ITS ABILITY TO ADMINISTER ITS APPELLATE DOCKET.  IN VIEW OF
THE NATURE OF THE RELIEF REQUESTED AND THE AVAILABILITY OF THE FEDERAL
DISTRICT COURTS AS AN ALTERNATIVE FORUM, THE COURT DECLINES TO ASSUME
JURISDICTION.  AS A MATTER OF LAW AS WELL AS OF PRACTICAL NECESSITY,
REMEDIES FOR AIR POLLUTION MUST BE CONSIDERED IN THE CONTEXT OF LOCAL
SITUATIONS, MAKING IT ADVISABLE THAT THIS CONTROVERSY BE RESOLVED IN
THE APPROPRIATE FEDERAL DISTRICT COURTS.  PP. 113-116. 

MOTIONS OF NORTH DAKOTA AND WEST VIRGINIA TO BE JOINED AS PARTIES
PLAINTIFF GRANTED.  MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT DENIED
AND PARTIES REMITTED TO OTHER FEDERAL FORUM. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL, J., WHO TOOK NO PART IN THE CONSIDERATION
OR DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PLAINTIFFS ARE 18 STATES WHO, BY THIS MOTION FOR LEAVE TO FILE A BILL
OF COMPLAINT, SEEK TO INVOKE THIS COURG'S ORIGINAL JURISDICTION UNDER
ART. III, SEC. 2, CL. 2, OF THE CONSTITUTION.  /1/  NAMED AS DEFENDANTS
ARE THE NATION'S FOUR MAJOR AUTOMOBILE MANUFACTURERS AND THEIR TRADE
ASSOCIATION. 

PLAINTIFFS ALLEGE A CONSPIRACY AMONG THE DEFENDANTS TO RESTRAIN THE
DEVELOPMENT OF MOTOR VEHICLE AIR POLLUTION CONTROL EQUIPMENT.  THEY
ALLEGE THAT THE CONSPIRACY BEGAN AS EARLY AS 1953 BUT WAS CONCEALED
UNTIL JANUARY 1969.  COUNT I OF THE PROPOSED COMPLAINT CHARGES A
VIOLATION OF THE FEDERAL ANTITRUST LAWS.  COUNT II CHARGES A COMMON-LAW
CONSPIRACY IN RESTRAINT OF TRADE INDEPENDENTLY OF THE SHERMAN AND
CLAYTON ACTS.  /2/  IN THEIR PRAYER FOR RELIEF, PLAINTIFFS SEEK AN
INJUNCTION REQUIRING THE DEFENDANTS TO UNDERTAKE "AN ACCELERATED
PROGRAM OF SPENDING, RESEARCH AND DEVELOPMENT DESIGNED TO PRODUCE A
FULLY EFFECTIVE POLLUTION CONTROL DEVICE OR DEVICES AND/OR POLLUTION
FREE ENGINE AT THE EARLIEST FEASIBLE DATE" AND ALSO ORDERING DEFENDANTS
TO INSTALL EFFECTIVE POLLUTION CONTROL DEVICES IN ALL MOTOR VEHICLES
THEY MANUFACTURED DURING THE CONSPIRACY AND AS STANDARD EQUIPMENT IN
ALL FUTURE MOTOR VEHICLES WHICH THEY MANUFACTURE.  OTHER PROPHYLACTIC
RELIEF IS ALSO SOUGHT. 

THE PROPOSED COMPLAINT PLAINLY PRESENTS IMPORTANT QUESTIONS OF VITAL
NATIONAL IMPORTANCE.  SEE, E.G., HEARINGS BEFORE THE SUBCOMMITTEE ON
AIR AND WATER POLLUTION OF THE SENATE COMMITTEE ON PUBLIC WORKS, 90TH
CONG., 1ST SESS. (1967).  OUR JURISDICTION OVER THE CONTROVERSY CANNOT
BE DISPUTED.  GEORGIA V. PENNSYLVANIA R. CO., 234 U.S. 439; GEORGIA V.
TENNESSEE COPPER CO., 206 U.S. 230.  FOR REASONS WHICH WILL APPEAR,
HOWEVER, WE DENY LEAVE TO FILE THE BILL OF COMPLAINT. 

THE GRAVAMEN OF PLAINTIFFS' ALLEGATIONS IS A HORIZONTAL CONSPIRACY
AMONG THE MAJOR AUTOMOBILE MANUFACTURERS TO IMPEDE THE RESEARCH AND
DEVELOPMENT OF AUTOMOTIVE AIR POLLUTION CONTROL DEVICES.  SEE GENERALLY
L. JAFFE & L. TRIBE, ENVIRONMENTAL PROTECTION 141-180 (1971).  IT IS
ARGUED THAT THE FACTS ALLEGED IN SUPPORT OF THE STATUTORY AND COMMON
LAW CLAIMS ARE IDENTICAL AND THAT THEY COULD BE ELICITED AS WELL BY A
SPECIAL MASTER APPOINTED BY THIS COURT AS BY A FEDERAL DISTRICT COURT
JUDGE, AND THAT RESORT TO A SPECIAL MASTER WOULD NOT PLACE A BURDEN ON
THIS COURT'S TIME AND RESOURCES SUBSTANTIALLY GREATER THAN WHEN WE HEAR
AN ANTITRUST CASE ON DIRECT APPEAL FROM A DISTRICT COURT UNDER THE
EXPEDITING ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C. 29.  AND IT IS
ARGUED THAT THE SHEER NUMBER OF STATES THAT SEEK TO INVOKE OUR ORIGINAL
JURISDICTION IN THIS MOTION IS REASON ENOUGH FOR US TO GRANT LEAVE TO
FILE.  /3/ 

THE BREADTH OF THE CONSTITUTIONAL GRANT OF THIS COURT'S ORIGINAL
JURISDICTION DICTATES THAT WE BE ABLE TO EXERCISE DISCRETION OVER THE
CASES WE HEAR UNDER THIS JURISDICTIONAL HEAD, LEST OUR ABILITY TO
ADMINISTER OUR APPELLATE DOCKET BE IMPAIRED.  MASSACHUSETTS V.
MISSOURI, 308 U.S. 1, 19; OHIO V. WYANDOTTE CHEMICALS CORP., 401 U.S.
493, 497-499; H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 258-260 (1953); WOODS & REED, THE SUPREME COURT AND INTERSTATE
ENVIRONMENTAL QUALITY; SOME NOTES ON THE WYANDOTTE CASE, 12
ARIZ.L.REV.  691; NOTE, 11 STAN.L.REV.  665, 694-700.  IN MASSACHUSETTS
V. MISSOURI, SUPRA, AT 18-19, WHERE MASSACHUSETTS SOUGHT TO INVOKE OUR
ORIGINAL JURISDICTION IN ORDER TO COLLECT A TAX CLAIM, WE SAID: 

"IN THE EXERCISE OF OUR ORIGINAL JURISDICTION SO AS TRULY TO FULFILL
THE CONSTITUTIONAL PURPOSE WE NOT ONLY MUST LOOK TO THE NATURE OF THE
INTEREST OF THE COMPLAINING STATE-- THE ESSENTIAL QUALITY OF THE RIGHT
ASSERTED-- BUT WE MUST ALSO INQUIRE WHETHER RECOURSE TO THAT
JURISDICTION . . . IS NECESSARY FOR THE STATE'S PROTECTION.  . . . TO
OPEN THIS COURT TO ACTIONS BY STATES TO RECOVER TAXES CLAIMED TO BE
PAYABLE BY CITIZENS OF OTHER STATES, IN THE ABSENCE OF FACTS SHOWING
THE NECESSITY FOR SUCH INTERVENTION, WOULD BE TO ASSUME A BURDEN WHICH
THE GRANT OF ORIGINAL JURISDICTION CANNOT BE REGARDED AS COMPELLING
THIS COURT TO ASSUME AND WHICH MIGHT SERIOUSLY INTERFERE WITH THE
DISCHARGE BY THIS COURT OF ITS DUTY IN DECIDING THE CASES AND
CONTROVERSIES APPROPRIATELY BROUGHT BEFORE IT." 

BY THE SAME TOKEN, WE CONCLUDE THAT THE AVAILABILITY OF THE FEDERAL
DISTRICT COURT AS AN ALTERNATIVE FORUM AND THE NATURE OF THE RELIEF
REQUESTED SUGGEST WE REMIT THE PARTIES TO THE RESOLUTION OF THEIR
CONTROVERSIES IN THE CUSTOMARY FORUM.  THE NATURE OF THE REMEDY WHICH
MAY BE NECESSARY, IF A CASE FOR RELIEF IS MADE OUT, ALSO ARGUES AGAINST
TAKING ORIGINAL JURISDICTION. 

AIR POLLUTION IS, OF COURSE, ONE OF THE MOST NOTORIOUS TYPES OF
PUBLIC NUISANCE IN MODERN EXPERIENCE.  CONGRESS HAS NOT, HOWEVER, FOUND
A UNIFORM, NATIONWIDE SOLUTION TO ALL ASPECTS OF THIS PROBLEM AND,
INDEED, HAS DECLARED "THAT THE PREVENTION AND CONTROL OF AIR POLLUTION
AT ITS SOURCE IS THE PRIMARY RESPONSIBILITY OF STATES AND LOCAL
GOVERNMENTS."  81 STAT. 485, 42 U.S.C. 1857(A)(3).  TO BE SURE,
CONGRESS HAS LARGELY PREEMPTED THE FIELD WITH REGARD TO "EMISSIONS FROM
NEW MOTOR VEHICLES," 42 U.S.C. 1857F-6AA); 31 FED. REG. 5170 (1966);
AND MOTOR VEHICLE FUELS AND FUEL ADDITIVES, 84 STAT. 1699, 42 U.S.C.
1857F-6CC)(4).  SEE CURRIE, MOTOR VEHICLE AIR POLLUTION; STATE
AUTHORITY AND FEDERAL PRE-EMPTION, 68 MICH.L.REV.  1083 (1970); HILL,
THE POLITICS OF AIR POLLUTION; PUBLIC INTEREST AND PRESSURE GROUPS, 10
ARIZ.L.REV.  37, 44-45 (1068); STEVENS, AIR POLLUTION AND THE FEDERAL
SYSTEM; RESPONSES TO FELT NECESSITIES, 22 HASTINGS L.J. 661, 674-676
(1971).  IT HAS ALSO PRE-EMPTED THE FIELD SO FAR AS EMISSIONS FROM
AIRPLANES ARE CONCERNED, 42 U.S.C. 1857F-9 TO 1857F-12.  SO FAR AS
FACTORIES, INCINERATORS, AND OTHER STATIONARY DEVICES ARE IMPLICATED,
THE STATES HAVE BROAD CONTROL TO AN EXTENT NOT NECESSARY TO RELATE
HERE.  /4/  SEE STEVENS, SUPRA, PASSIM; COMMENT, 58 CALIF.L.REV.  1474
(1970).  BUT IN CERTAIN INSTANCES, AS, FOR EXAMPLE, WHERE FEDERAL
PRIMARY AND SECONDARY AMBIENT AIR QUALITY STANDARDS HAVE BEEN
ESTABLISHED, /5/  42 U.S.C. 1857C-4 AND 1857C-5, OR WHERE "HAZARDOUS
AIR POLLUTANTS" HAVE BEEN DEFINED, 42 U.S.C. 1857C-7, THERE MAY BE
FEDERAL PRE-EMPTION.  SEE 42 U.S.C. 1857C-8 ET SEQ. MOREOVER,
GEOPHYSICAL CHARACTERISTICS WHICH DEFINE LOCAL AND REGIONAL AIRSHEDS
ARE OFTEN SIGNIFICANT TO ABATE AIR POLLUTION.  SEE HEARINGS BEFORE THE
SUBCOMMITTEE ON AIR AND WATER POLLUTION OF THE SENATE COMMITTEE ON
PUBLIC WORKS, 90TH CONG., 1ST SESS., 130 (1967); COONS, AIR POLLUTION &
GOVERNMENT STRUCTURE, 10 ARIZ.L.REV.  48, 60-64 (1968).  THUS, MEASURES
WHICH MIGHT BE ADEQUATE TO DEAL WITH POLLUTION IN A CITY SUCH AS SAN
FRANCISCO, MIGHT BE GROSSLY INADEQUATE IN A CITY SUCH AS PHOENIX, WHERE
GEOGRAPHICAL AND METEOROLOGICAL CONDITIONS TRAP AEROSOLS AND
PARTICULATES. 

AS A MATTER OF LAW AS WELL AS PRACTICAL NECESSITY CORRECTIVE
REMEDIES FOR AIR POLLUTION, THEREFORE, NECESSARILY MUST BE CONSIDERED
IN THE CONTEXT OF LOCALIZED SITUATIONS.  /6/  WE CONCLUDE THAT THE
CAUSES SHOULD BE HEARD IN THE APPROPRIATE FEDERAL DISTRICT COURTS. 
/7/ 

THE MOTIONS OF THE STATES OF NORTH DAKOTA AND WEST VIRGINIA TO BE
JOINED AS PARTIES PLAINTIFF ARE GRANTED.  THE MOTION FOR LEAVE TO FILE
A BILL OF COMPLAINT IS DENIED AND THE PARTIES ARE REMITTED WITHOUT
PREJUDICE TO THE OTHER FEDERAL FORUM. 

              IT IS SO ORDERED. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE MOTIONS. 

/1/  FIFTEEN STATES ORIGINALLY MOVED FOR LEAVE TO FILE A BILL OF
COMPLAINT.  WE SUBSEQUENTLY GRANTED LEAVE TO THE STATE OF IDAHO TO
INTERVENE AS PLAINTIFF.  403 U.S. 949.  BY TODAY'S DECISION WE ALSO
GRANT LEAVE TO THE STATES OF NORTH DAKOTA AND WEST VIRGINIA TO BE
JOINED AS PARTIES PLAINTIFF. 

/2/  A THIRD COUNT OF PLAINTIFFS' PROPOSED COMPLAINT ALSO CHARGED "A
PUBLIC NUISANCE CONTRARY TO THE PUBLIC POLICY OF THE PLAINTIFF STATES .
. . (AND) THE FEDERAL GOVERNMENT."  MOTION FOR LEAVE TO FILE BILL OF
COMPLAINT 12.  IN A MEMORANDUM FILED WITH THIS COURT FEB. 19, 1972,
HOWEVER, PLAINTIFFS STRUCK THIS COUNT FROM THEIR PROPOSED COMPLAINT;
BUT IDAHO, THE INTERVENOR, DID NOT JOIN IN THAT MOTION.  IN LIGHT OF
OUR DISPOSITION OF COUNTS I AND II OF THE BILL OF COMPLAINT, IDAHO'S
MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT SOLELY FOR COUNT III
SHOULD BE DENIED A FORTIORI.  SHOULD ANY OF THE PLAINTIFFS DESIRE TO
RENEW THE PUBLIC NUISANCE COUNT OF THE BILL OF COMPLAINT IN THE
DISTRICT COURT, THEY ARE FREE TO DO SO UNDER OUR DECISION TODAY IN
ILLINOIS V. CITY OF MILWAUKEE, ANTE, P. 91. 

/3/  IN ADDITION TO THE 18 STATES WHICH ARE PLAINTIFFS, 16 OTHER
STATES AND THE CITY OF NEW YORK HAVE FILED A BRIEF AS AMICUS CURIAE
SUPPORTING PLAINTIFFS' MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT. 

/4/  BECAUSE FEDERAL MOTOR VEHICLE EMISSION CONTROL STANDARDS APPLY
ONLY TO NEW MOTOR VEHICLES, STATES ALSO RETAIN BROAD RESIDUAL POWER
OVER USED MOTOR VEHICLES.  MOREOVER, CITIZENS, STATES, AND LOCAL
GOVERNMENTS MAY INITIATE ACTIONS TO ENFORCE COMPLIANCE WITH FEDERAL
STANDARDS AND TO ENFORCE OTHER STATUTORY AND COMMON-LAW RIGHTS.  42
U.S.C. 1857H-2. 

/5/  NATIONAL PRIMARY AMBIENT AIR QUALITY STANDARDS ARE THOSE "WHICH
IN THE JUDGMENT OF THE ADMINISTRATOR (OF THE ENVIRONMENTAL PROTECTION
AGENCY) . . . ARE REQUISITE TO PROTECT THE PUBLIC HEALTH.  . . . "  42
U.S.C. 1857C-4(B)(1).  SECONDARY AMBIENT AIR QUALITY STANDARDS ARE
THOSE "REQUISITE TO PROTECT THE PUBLIC WELFARE," 42 U.S.C. 1857C
4(B)(2), WHICH "INCLUDES BUT IS NOT LIMITED TO, EFFECTS ON SOILS,
WATER, CROPS, VEGETATION, MANMADE MATERIALS, ANIMALS, WILDLIFE,
WEATHER, VISIBILITY, AND CLIMATE, DAMAGE TO AND DETERIORATION OF
PROPERTY, AND HAZARDS TO TRANSPORTATION, AS WELL AS EFFECTS ON ECONOMIC
VALUES AND ON PERSONAL COMFORT AND WELL-BEING."  42 U.S.C. 1857HH). 
FOR IMPLEMENTATION PLANS FOR PRIMARY AND SECONDARY AMBIENT AIR QUALITY
STANDARDS, SEE 42 U.S.C. 1857C-5. 

RULES AND REGULATIONS SETTING AMBIENT AIR QUALITY STANDARDS HAVE
BEEN PROMULGATED BY THE ENVIRONMENTAL PROTECTION AGENCY.  36 FED.REG. 
22384 (1971). 

/6/  IT WAS IN RECOGNITION OF THIS FACT THAT CONGRESS DIRECTED THE
ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY TO "DESIGNATE AS
AN AIR QUALITY CONTROL REGION ANY INTERSTATE AREA OR MAJOR INTRA-STATE
AREA WHICH HE DEEMS NECESSARY OR APPROPRIATE FOR THE ATTAINMENT AND
MAINTENANCE OF AMBIENT AIR QUALITY STANDARDS."  42 U.S.C. 1857C-2(C). 

/7/  MULTI-DISTRICT LITIGATION APPARENTLY INVOLVING THE SAME FACTUAL
CLAIMS AS ARE PRESENTED HERE HAS BEEN CONSOLIDATED IN THE DISTRICT
COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA AND PRETRIAL PROCEEDINGS
ARE ALREADY UNDER WAY.  SEE IN RE MOTOR VEHICLE AIR POLLUTION CONTROL
EQUIPMENT, 311 F.SUPP.  1349 (JUD.  PANEL ON MULTIDIST.  LIT.  1970). 

FREDRIC C. TAUSEND, SPECIAL ASSISTANT ATTORNEY GENERAL OF
WASHINGTON, ARGUED THE CAUSE FOR PLAINTIFFS.  WITH HIM ON THE BRIEFS
WERE SLADE GORTON, ATTORNEY GENERAL OF WASHINGTON, WILLIAM L. DWYER AND
DAVID G. KNIBB, SPECIAL ASSISTANT ATTORNEYS GENERAL; WILLIAM J. SCOTT,
ATTORNEY GENERAL OF ILLINOIS, AND ROBERT S. ATKINS AND DAVID C.
LANDGRAF, ASSISTANT ATTORNEYS GENERAL; GARY NELSON, ATTORNEY GENERAL OF
ARIZONA, AND MALCOLM P. STROHSON, ASSISTANT ATTORNEY GENERAL; DUKE W.
DUNBAR, ATTORNEY GENERAL OF COLORADO, JOHN MOORE, DEPUTY ATTORNEY
GENERAL, AND WILLIAM TUCKER, ASSISTANT ATTORNEY GENERAL; BERTRAM T.
KANBARA, ATTORNEY GENERAL OF HAWAII, AND GEORGE PAI, DEPUTY ATTORNEY
GENERAL W. ANTHONY PARK, ATTORNEY GENERAL OF IDAHO, AND RICHARD
GREENER, DEPUTY ATTORNEY GENERAL; RICHARD C. TURNER, ATTORNEY GENERAL
OF IOWA; KENT FRIZZELL, ATTORNEY GENERAL OF KANSAS, AND RICHARD HAYSE,
ASSISTANT ATTORNEY GENERAL; JAMES S. ERWIN, ATTORNEY GENERAL OF MAINE,
ROBERT H. QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, AND NEAL COLICCHIO,
ASSISTANT ATTORNEY GENERAL; DOUGLAS M. HEAD, ATTORNEY GENERAL OF
MINNESOTA; JOHN C. DANFORTH, ATTORNEY GENERAL OF MISSOURI; HELGI
JOHANNESON, ATTORNEY GENERAL OF NORTH DAKOTA, AND PAUL M. SAND, FIRST
ASSISTANT ATTORNEY GENERAL; PAUL W. BROWN, ATTORNEY GENERAL OF OHIO;
AND DONALD WECKSTEIN, ASSISTANT ATTORNEY GENERAL HERBERT F. DE SIMONE,
ATTORNEY GENERAL OF RHODE ISLAND; JAMES M. JEFFORDS, ATTORNEY GENERAL
OF VERMONT, AND JOHN D. HANSEN, ASSISTANT ATTORNEY GENERAL; ANDREW P.
MILLER, ATTORNEY GENERAL OF VIRGINIA, AND ANTHONY F. TROY, ASSISTANT
ATTORNEY GENERAL; CHAUNCEY H. BROWNING, JR., ATTORNEY GENERAL OF WEST
VIRGINIA, GENE HAL WILLIAMS, FIRST DEPUTY ATTORNEY GENERAL, AND JAMES
G. ANDERSON III, ASSISTANT ATTORNEY GENERAL. 

LLOYD N. CUTLER ARGUED THE CAUSE FOR DEFENDANTS.  WITH HIM ON THE
BRIEFS WERE HOWARD P. WILLENS, JAY F. LAPIN, LOUIS F. OBERDORFER, JAMES
S. CAMPBELL, JULIAN O. VON KALINOWSKI, AND PAUL G. BOWER FOR AUTOMOBILE
MANUFACTURERS ASSN., INC.; WALTER J. WILLIAMS AND FORREST A. HAINLINE,
JR., FOR AMERICAN MOTORS CORP.; TOM KILLEFER, WILLIAM E. HUTH, G.
WILLIAM SHEA, AND PHILIP K. VERLEGER, FOR CHRYSLER CORP.; ROBERT L.
STERN AND CARL J. SCHUCK FOR FORD MOTOR CO.; ROSS L. MALONE, ROBERT A.
NITSCHKE, HAMMOND E. CHAFFETZ, JOSEPH DUCOEUR, MARCUS MATTSON, AND
RICHARD F. OUTCAULT, JR., FOR GENERAL MOTORS CORP.     BRIEF FOR
ALABAMA ET AL. AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS'  MOTION FOR
LEAVE TO FILE BILL OF COMPLAINT WAS FILED BY J. LEE RANKIN, DAVID I.
SHAPIRO, AND JEROME S. WAGSHAL, AND BY THE FOLLOWING ATTORNEYS GENERAL
FOR THEIR RESPECTIVE STATES: WILLIAM J. BAXLEY OF ALABAMA, JOHN E.
HAVELOCK OF ALASKA, EVELLE J. YOUNGER OF CALIFORNIA, ROBERT L. SHEVIN
OF FLORIDA, JACK P. F. GREMILLION OF LOUISIANA, FRANCIS B. BURCH OF
MARYLAND, A. F. SUMMER OF MISSISSIPPI, ROBERT LIST OF NEVADA, DAVID L.
NORVELL OF NEW MEXICO, LOUIS J. LEFKOWITZ OF NEW YORK, LARRY DERRYBERRY
OF OKLAHOMA, J. SHANE CREAMER OF PENNSYLVANIA, DANIEL R. MCLEOD OF
SOUTH CAROLINA, GORDON MYDLAND OF SOUTH DAKOTA, CRAWFORD C. MARTIN OF
TEXAS, AND ROBERT W. WARREN OF WISCONSIN. 
..END :




















NEBRASKA V. IOWA, 406 U.S. 117 


       NEBRASKA V. IOWA

        ON EXCEPTIONS TO REPORT OF SPECIAL MASTER

        NO. 17, ORIG.  ARGUED MARCH 29, 1972-- DECIDED APRIL 24,

           1972 


THE EXCEPTIONS TO THE SPECIAL MASTER'S REPORT IN THIS ACTION BROUGHT
BY NEBRASKA FOR CONSTRUCTION AND ENFORCEMENT OF THE IOWA-NEBRASKA
BOUNDARY COMPACT OF 1943, ENTERED INTO TO ESTABLISH A PERMANENT
LOCATION OF A BOUNDARY LINE MADE DIFFICULT BY THE MEANDERINGS OF THE
MISSOURI RIVER, ARE GENERALLY OVERRULED.  IOWA'S EXCEPTION TO THE
MASTER'S RECOMMENDATION FOR AN INJUNCTION ENJOINING IOWA FROM FURTHER
PROSECUTION OF CERTAIN PENDING CASES IS SUSTAINED, AS THE COURT IS
CONFIDENT IOWA WILL ABIDE BY THE ADOPTION OF THE MASTER'S CONCLUSION
THAT IN ANY PROCEEDING BETWEEN A PRIVATE LITIGANT AND THE STATE IN
WHICH A CLAIM OF TITLE GOOD UNDER NEBRASKA LAW TO LAND ALLEGEDLY CEDED
TO IOWA UNDER THE COMPACT IS PROVED, IOWA SHALL NOT INVOKE ITS COMMON
LAW DOCTRINE OF STATE OWNERSHIP AS DEFEATING SUCH TITLE.  THE STATES
MAY SUBMIT A PROPOSED DECREE IN ACCORDANCE WITH THIS OPINION, AND, IF
THEY CANNOT AGREE, THE MASTER WILL PREPARE AND SUBMIT A RECOMMENDED
DECREE.  PP. 117-127. 

BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

BOTH IOWA AND NEBRASKA FILED EXCEPTIONS TO THE REPORT SUBMITTED BY
THE SPECIAL MASTER IN THIS ORIGINAL ACTION BROUGHT BY NEBRASKA AGAINST
IOWA FOR CONSTRUCTION AND ENFORCEMENT OF THE IOWA-NEBRASKA BOUNDARY
COMPACT OF 1943.  /1/ 

THE MISSOURI RIVER IS THE BOUNDARY BETWEEN THE TWO STATES.  IN 1892,
IN ANOTHER SUIT BROUGHT BY NEBRASKA AGAINST IOWA, THIS COURT HELD THAT
THE BOUNDARY LINE IN THE RIVER AT CARTER LAKE, IOWA, WAS TO BE LOCATED
ACCORDING TO THE PRINCIPLE THAT THE BOUNDARY "IS A VARYING LINE" SO FAR
AS AFFECTED BY "CHANGES OF DIMINUTION AND ACCRETION IN THE MERE WASHING
OF THE WATERS OF THE STREAM," BUT NOT WHERE THE RIVER IS SHIFTED BY
AVULSION:  "BY THIS SELECTION OF A NEW CHANNEL THE BOUNDARY WAS NOT
CHANGED, AND IT REMAINED AS IT WAS PRIOR TO THE AVULSION, THE CENTRE
LINE OF THE OLD CHANNEL; . . . UNLESS THE WATERS OF THE RIVER RETURNED
TO THEIR FORMER BED, (SUCH CENTER LINE) BECAME A FIXED AND UNVARYING
BOUNDARY, NO MATTER WHAT MIGHT BE THE CHANGES OF THE RIVER IN ITS NEW
CHANNEL."  NEBRASKA V. IOWA, 143 U.S. 359, 370 (1892); THE DECREE IS IN
145 U.S. 519 (1892).  THE COMPACT ADOPTS THIS LINE AT CARTER LAKE, AND
FOR THE REST OF THE BOUNDARY FIXES THE LINE IN "THE MIDDLE OF THE MAIN
CHANNEL OF THE MISSOURI RIVER," DEFINED AS THE "CENTER LINE OF THE
PROPOSED STABILIZED CHANNEL FO THE MISSOURI RIVER AS ESTABLISHED BY THE
UNITED STATES ENGINEERS' OFFICE, OMAHA, NEBRASKA, AND SHOWN ON THE
ALLUVIAL PLAIN MAPS OF THE MISSOURI RIVER FROM SIOUX CITY, IOWA, TO
RULO, NEBRASKA, AND IDENTIFIED BY FILE NUMBERS AP-1 TO 4 INCLUSIVE,
DATED JANUARY 30, 1940, AND FILE NUMBERS AP-5 TO 10 INCLUSIVE, DATED
MARCH 29, 1940, WHICH MAPS ARE NOW ON FILE IN THE UNITED STATES
ENGINEERS' OFFICE AT OMAHA, NEBRASKA, AND COPIES OF WHICH MAPS ARE NOW
ON FILE WITH THE SECRETARY OF STATE OF THE STATE OF IOWA AND WITH THE
SECRETARY OF STATE OF THE STATE OF NEBRASKA."  THE "PROPOSED STABILIZED
CHANNEL" REFERS TO A PROJECT BEGUN IN THE EARLY 1930'S BY THE UNITED
STATES ARMY CORPS OF ENGINEERS TO TAME THE RIVER ALONG ITS ENTIRE
LENGTH BY CONTAINING IT WITHIN A DESIGNED CHANNEL.  THE WORK HAD BEEN
PARTIALLY COMPLETED BY 1943, BUT WAS SUSPENDED WHEN WORLD WAR II
INTERVENED.  WHEN WORK RESUMED IN 1948, THE CHANNEL WAS PARTLY
REDESIGNED, AND BY 1959 THE RIVER HAD BEEN CONFINED IN THE NEWLY
DESIGNED CHANNEL. 

THE STATES DETERMINED IN 1943 TO AGREE BY COMPACT UPON A PERMANENT
LOCATION OF THE BOUNDARY LINE WHEN EXPERIENCE SHOWED THAT "THE FICKLE
MISSOURI RIVER . . . REFUSED TO BE BOUND BY THE SUPREME COURT DECREE
(OF 1892).  IN THE PAST THIRTY-FIVE YEARS THE RIVER HAS CHANGED ITS
COURSE SO OFTEN THAT IT HAS PROVED IMPOSSIBLE TO APPLY THE COURT
DECISION IN ALL CASES, SINCE IT IS DIFFICULT TO DETERMINE WHETHER THE
CHANNEL OF THE RIVER HAS CHANGED BY 'THE LAW OF ACCRETION' OR 'THAT OF
AVULSION.'"  ERIKSSON, BOUNDARIES OF IOWA, 25 IOWA J.OF HIST.AND POL. 
163, 234 (1927).  THE SPECIAL MASTER FOUND, ON AMPLE EVIDENCE, AND WE
ADOPT HIS FINDINGS, THAT BY 1943 THE SHIFTS OF THE RIVER CHANNEL HAD
BEEN SO NUMEROUS AND INTRICATE, BOTH IN ITS NATURAL STATE AND AS A
RESULT OF THE WORK OF THE CORPS OF ENGINEERS, THAT IT WOULD BE
PRACTICALLY IMPOSSIBLE TO LOCATE THE ORIGINAL BOUNDARY LINE.  /2/ 

THE FIXING OF THE PERMANENT BOUNDARY BY COMPACT RESULTED IN SOME
RIPARIAN LANDS FORMERLY IN EACH STATE BEING LOCATED WITHIN THE OTHER
STATE.  THIS CREATED THE PROBLEM OF THE EFFECT TO BE GIVEN BY THE NEW
STATE TO TITLES, MORTGAGES, AND OTHER LIENS THAT HAD ARISEN UNDER THE
LAWS OF THE OTHER STATE.  SECTIONS 2 AND 3 OF THE COMPACT WERE DESIGNED
TO SOLVE THIS PROBLEM.  /3/  UNDER SEC. 2 OF EACH STATE "CEDES" TO THE
OTHER STATE "AND RELINQUISHES JURISDICTION OVER" ALL SUCH LANDS NOW
LOCATED WITHIN THE COMPACT BOUNDARY OF THE OTHER.  UNDER SEC. 3,
"(TITLES, MORTGAGES, AND OTHER LIENS" AFFECTING SUCH LANDS "GOOD IN"
THE CEDING STATE "SHALL BE GOOD IN" THE OTHER STATE. 

THE INSTANT DISPUTE BETWEEN THE STATES AROSE WHEN IOWA IN 1963
CLAIMED STATE OWNERSHIP OF SOME 30 SEPARATE AREAS OF LAND, WATER,
MARSH, OR MIXTURE OF THE THREE WHOLLY ON THE IOWA SIDE OF THE COMPACT
BOUNDARY.  THE EIGHTH AND PART OF A NINTH SUCH AREAS WERE FORMED BEFORE
1943.  THE 21ST AND PART OF A 22D WERE FORMED AFTER 1943.  /4/  IOWA'S
CLAIM WAS BASED ON IOWA COMMON LAW THAT PRIVATE TITLES TO RIPARIAN
LANDS RUN ONLY TO THE ORDINARY HIGH-WATER MARK ON NAVIGABLE STREAMS AND
THAT THE STATE IS THE OWNER OF THE BEDS OF ALL NAVIGABLE STREAMS WITHIN
THE STATE AND IS ALSO THE OWNER OF ANY ISLANDS THAT MAY FORM THEREIN. 
MCMANUS V. CARMICHAEL, 3 IOWA 1 (1856); HOLMAN V. HODGES, 112 IOWA 714,
84 N.W. 950 (1901).  THE AREAS FORMED BEFORE 1943 LIE SOUTH OF OMAHA
AND THOSE FORMED AFTER 1943 LIE NORTH OF OMAHA.  TWO OF THE PRE-1943
AREAS ARE NOTTLEMAN ISLAND AND SCHEMMEL ISLAND.  EACH IS THE SUBJECT OF
AN ACTION TO QUIET TITLE BROUGHT BY IOWA IN IOWA COURTS.  /5/  THE
DEFENSE IN EACH CASE IS THAT THERE EXIST "TITLES . . . GOOD IN
NEBRASKA" TO THE ISLANDS THAT, UNDER SEC. 3 OF THE COMPACT, IOWA
OBLIGATED ITSELF TO RECOGNIZE TO BE "GOOD IN IOWA" AS AGAINST ANY CLAIM
OF IOWA UNDER ITS DOCTRINE OF STATE OWNERSHIP. 

THUS, THE CONTROVERSY BETWEEN THE STATES IN THIS CASE CENTERS AROUND
THE PROPER CONSTRUCTION OF THEIR COMPACT.  THE SPECIAL MASTER'S
FINDINGS AND CONCLUSIONS GENERALLY FAVOR NEBRASKA'S POSITION ON THE
MERITS OF THE CONTROVERSY OVER THE AREAS THAT FORMED BEFORE JULY 12,
1943, AND IOWA'S EXCEPTIONS ARE ADDRESSED TO THEM.  ON THE OTHER HAND,
THE FINDINGS AND CONCLUSIONS FAVOR IOWA'S POSITION ON THE MERITS OF THE
CONTROVERSY OVER THE AREAS THAT FORMED AFTER JULY 12, 1943, AND
NEBRASKA'S EXCEPTIONS ARE PRIMARILY ADDRESSED TO THEM.  WE OVERRULE ALL
EXCEPTIONS, SAVE TWO, OF NEBRASKA'S ADDRESSED TO PRINTING ERRORS IN THE
REPORT, /6/  EXCEPT AS WE SUSTAIN, INFRA, IOWA'S EXCEPTIONS IV AND V
INSOFAR AS THE SPECIAL MASTER RECOMMENDED THAT AN INJUNCTION ISSUE, AND
EXCEPT AS MENTIONED IN N. 8, INFRA. 

THE SPECIAL MASTER CONSTRUED THE WORD "CEDES" IN SEC. 2 AS MEANT BY
THE STATES TO DESCRIBE ALL AREAS FORMED BEFORE JULY 12, 1943,
REGARDLESS OF THEIR LOCATION WITH REFERENCE TO THE ORIGINAL BOUNDARY,
WHOSE "(TITLES, MORTGAGES, AND OTHER LIENS" WERE, AT THE DATE OF THE
COMPACT, "GOOD IN" THE CEDING STATE, AND RULED THAT, UNDER SEC. 3, THE
OTHER STATE IS BOUND TO RECOGNIZE SUCH "(TITLES, MORTGAGES, AND OTHER
LIENS" TO BE "GOOD IN" ITS STATE, AND NOT TO CLAIM OWNERSHIP IN
ITSELF.  IOWA URGES, IN ITS EXCEPTIONS II AND III, THAT THIS
CONSTRUCTION IS ERRONEOUS AND THAT SECS. 2 AND 3 SHOULD BE CONSTRUED AS
RELATING ONLY TO AREAS FORMED BEFORE JULY 12, 1943, THAT CAN BE PROVED
BY CLEAR, SATISFACTORY, AND CONVINCING EVIDENCE TO HAVE BEEN ON THE
NEBRASKA SIDE OF THE ORIGINAL BOUNDARY BEFORE THE COMPACT FIXED THE
PERMANENT BOUNDARY.  WE OVERRULE IOWA'S EXCEPTIONS.  IOWA'S
CONSTRUCTION WOULD REQUIRE THE CLAIMANT WHO PROVES TITLE "GOOD IN
NEBRASKA" ALSO TO SHOULDER THE BURDEN OF PROVING THE LOCATION OF THE
ORIGINAL BOUNDARY BEFORE 1943, AS WELL AS PROVING THAT THE LANDS WERE
ON THE NEBRASKA SIDE OF THAT BOUNDARY.  THAT, SAID THE SPECIAL MASTER,
AND WE AGREE, "WOULD BE PLACING A BURDEN UPON THE LAND OWNER WHICH THE
STATES THEMSELVES REFUSED TO UNDERTAKE IN 1943 AND AGREED WOULD NOT BE
NECESSARY.  THE STATES WOULD IN EFFECT BE SAYING TO THE LAND OWNERS,
'WE COULD NOT PROVE WHERE THE BOUNDARY WAS IN 1943 BUT NOW, AFTER WE
HAVE WAITED 27 YEARS, WE ARE GOING TO MAKE YOU PROVE WHERE IT WAS AT
YOUR EXPENSE EVEN THOUGH WE KNOW IT IS IMPOSSIBLE.'"  /7/ 

IOWA'S EXCEPTIONS IV AND V CONCERN THE SPECIAL MASTER'S FINDINGS
THAT THE STATE OF IOWA DOES NOT OWN NOTTLEMAN ISLAND AND SCHEMMEL
ISLAND.  THE SPECIAL MASTER FOUND THAT THE PROOFS SUFFICED TO ESTABLISH
TITLE "GOOD IN NEBRASKA" TO NOTTLEMAN ISLAND AND SCHEMMEL ISLAND, BUT
DID NOT SUFFICE TO PROVE TITLE "GOOD IN NEBRASKA" TO THE OTHER AREAS
CLAIMED BY IOWA THAT WERE FORMED BEFORE 1943.  /8/  HE FOUND, AND WE
AGREE, THAT TITLES "GOOD IN NEBRASKA" INCLUDE PRIVATE TITLES TO
RIPARIAN LANDS THAT UNDER NEBRASKA LAW, DIFFERING FROM IOWA LAW, RUN TO
THE THREAD OF THE CONTIGUOUS STREAM.  KINKEAD V. TURGEON, 74 NEB. 573,
104 N.W. 1061 (1905), 74 NEB. 580, 109 N.W. 744 (1906).  /9/  HE FOUND
FURTHER THAT TITLES "GOOD IN NEBRASKA" EMBRACE TITLES OBTAINED BY 10
YEARS' OPEN, NOTORIOUS, AND ADVERSE POSSESSION UNDER CLAIM OF RIGHT
WITHOUT ANY REQUIREMENT OF A RECORD TITLE; UNDER IOWA LAW, A CLAIM MUST
BE UNDER "COLOR OF TITLE," REQUIRING SOME TYPE OF RECORD TITLE TO
COMMENCE THE PERIOD OF ADVERSE POSSESSION.  /10/ 

THE SPECIAL MASTER RECOMMENDED THAT AS TO AREAS FORMED BEFORE JULY
12, 1943, SECS. 2 AND 3 SHOULD BE CONSTRUED AS LIMITING THE STATE OF
IOWA TO CONTESTING WITH PRIVATE LITIGANTS IN STATE OR FEDERAL COURTS
THE QUESTION WHETHER THE PRIVATE CLAIMANTS CAN PROVE TITLE "GOOD IN
NEBRASKA," AND WHEN PRIVATE LITIGANTS PROVE SUCH TITLE, AS OBLIGING
IOWA NOT TO INTERPOSE IOWA'S DOCTRINE OF STATE OWNERSHIP AS DEFEATING
SUCH TITLE.  /11/  WE AGREE, AND TO THAT EXTENT OVERRULE IOWA'S
EXCEPTIONS IV AND V. AS TO NOTTLEMAN ISLAND AND SCHEMMEL ISLAND,
HOWEVER, THE SPECIAL MASTER RECOMMENDED THAT, IN ADDITION TO A JUDGMENT
THAT TITLES "GOOD IN NEBRASKA" HAVE BEEN PROVED AS TO THOSE ISLANDS, SO
THAT IOWA IS PRECLUDED FROM CLAIMING TITLE THERETO UNDER ITS DOCTRINE
OF STATE OWNERSHIP, THIS COURT SHOULD ENJOIN THE STATE OF IOWA, ITS
OFFICERS, AGENTS, AND SERVANTS FROM FURTHER PROSECUTION OF THE CASES
NOW PENDING IN THE IOWA COURTS.  /12/  WE SEE NO REASON FOR AN
INJUNCTION AT THIS STAGE.  WE ARE CONFIDENT THAT THE STATE OF IOWA WILL
ABIDE BY OUR ADOPTION OF THE SPECIAL MASTER'S CONCLUSION THAT IN ANY
PROCEEDING BETWEEN A PRIVATE LITIGANT AND THE STATE OF IOWA IN WHICH A
CLAIM OF TITLE GOOD UNDER THE LAW OF NEBRASKA IS PROVED, THE STATE OF
IOWA WILL NOT INVOKE ITS COMMON-LAW DOCTRINE OF STATE OWNERSHIP AS
DEFEATING SUCH TITLE.  IOWA'S EXCEPTIONS IV AND V ARE THEREFORE
SUSTAINED INSOFAR AS THE SPECIAL MASTER RECOMMENDED THAT AN INJUNCTION
ISSUE. 

NEBRASKA'S BASIC EXCEPTION IS TO THE FINDINGS AND CONCLUSION OF THE
SPECIAL MASTER THAT OWNERSHIP OF AREAS THAT HAVE FORMED SINCE JULY 12,
1943, SHOULD BE DETERMINED UNDER THE LAW OF THE STATE IN WHICH THEY
FORMED, THE BOUNDARY FIXED BY THE COMPACT BEING THE LINE THAT
DETERMINES IN WHICH STATE THEY FORMED.  /13/ THIS PERTAINS TO THE 21
AREAS AND PART OF A 22D THAT LIE NORTH OF OMAHA.  SEE N. 4, SUPRA. 

ALTHOUGH THE SPECIAL MASTER RECOMMENDED, AND WE AGREE, THAT
CLAIMANTS OF TITLE TO THESE AREAS AS AGAINST IOWA MAY ALSO HAVE THE
OPPORTUNITY TO SHOW TITLE "GOOD IN NEBRASKA" ON THE COMPACT DATE, JULY
12, 1943, /14/  NEBRASKA OFFERED NO PROOF TO SUPPORT SUCH A CLAIM AS TO
ANY OF THE AREAS.  NEBRASKA DOES CONTEND, HOWEVER, THAT ANY ACCRETIONS
TO NEBRASKA RIPARIAN LANDS THAT CROSS THE COMPACT BOUNDARY LINE INTO
IOWA, CAUSED WHEN THE RIVER MOVES GRADUALLY AND IMPERCEPTIBLY, SHOULD
BE DECLARED TO ACCRUE TO THE NEBRASKA RIPARIAN OWNER UNDER NEBRASKA
LAW, SINCE UNDER NEBRASKA LAW THE BOUNDARY OF THE NEBRASKA OWNER MOVES
WITH THE THALWEG OR MAIN NAVIGABLE CHANNEL, REGARDLESS OF WHICH STATE
THE MOVEMENT IS IN.  THE SPECIAL MASTER REJECTED THAT CONTENTION.  WE
AGREE THAT THE CONTENTION IS WITHOUT MERIT FOR THE REASONS STATED IN
TYSON V. STATE OF IOWA, 283 F.2D 802 (CA8 1960).  THAT WAS A
CONDEMNATION ACTION BY THE UNITED STATES IN WHICH THE QUESTION WAS THE
OWNERSHIP OF AN ISLAND AT TYSON BEND, ONE OF THE AREAS NORTH OF OMAHA
TO WHICH IOWA CLAIMS OWNERSHIP.  SEE N. 4, SUPRA.  THE ISLAND HAD
FORMED BETWEEN THE DESIGNED CHANNEL AND A MAIN CHANNEL CREATED WHEN THE
RIVER ESCAPED FROM THE DESIGNED CHANNEL BETWEEN 1943 AND 1948.  THE
ISLAND HAD THEN BECOME CONNECTED TO THE NEBRASKA SHORE WHEN THE
DESIGNED CHANNEL FILLED WITH SEDIMENT AFTER A 1952 FLOOD.  THE CORPS OF
ENGINEERS DETERMINED TO DREDGE A CANAL IN THE DESIGNED CHANNEL TO PLACE
THE RIVER BACK IN THE DESIGNED CHANNEL.  CONDEMNATION OF AN EASEMENT ON
THE ISLAND WAS NECESSARY TO CARRY THE PROJECT FORWARD, AND THE QUESTION
OF OWNERSHIP OF THE ISLAND HAD TO BE SETTLED TO DETERMINE WHO WAS
ENTITLED TO COMPENSATION.  THE TYSON CLAIMANTS CLAIMED THE LAND AS AN
ACCRETION TO NEBRASKA LAND OR RIVER BEDS BELONGING TO THEM.  THE STATE
OF IOWA CLAIMED IT AS AN ISLAND FORMED OVER THE STATE-OWNED RIVER BED
IN IOWA UNDER THE IOWA DOCTRINE OF STATE OWNERSHIP.  THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT HELD THAT THE OWNERSHIP OF THE ISLAND
SHOULD BE DETERMINED BY THE LAW OF THE STATE IN WHICH THE LAND WAS
SITUATED, THAT IS, BY THE LAW OF IOWA, SINCE THE ISLAND WAS ON THE IOWA
SIDE OF THE COMPACT BOUNDARY.  THE COURT OF APPEALS EXPRESSLY REJECTED
THE SAME CONTENTION URGED UPON US BY NEBRASKA, HOLDING, IN AGREEMENT
WITH THE DISTRICT COURT IN THE CASE, THAT "THE NEBRASKA LAW OF
ACCRETION DID NOT OPERATE TO CREATE RIPARIAN RIGHTS WITHIN THE
TERRITORIAL LIMITS OF IOWA."  283 F.2D, AT 811.  HENCE, WHETHER THE
NEBRASKA RIPARIAN OWNER HAS TITLE TO THE ACCRETIONS THAT CROSS THE
BOUNDARY INTO IOWA IS DETERMINED BY IOWA LAW.  NEBRASKA ARGUES THAT
TYSON WAS WRONGLY DECIDED.  WE DO NOT AGREE.  TYSON IS CONSISTENT WITH
WHAT THE COURT SAID IN ARKANSAS V. TENNESSEE, 246 U.S. 158, 175-178
(1918): 

     "HOW THE LAND THAT EMERGES ON EITHER SIDE OF AN INTERSTATE

  BOUNDARY STREAM SHALL BE DISPOSED OF AS BETWEEN PUBLIC AND

  PRIVATE OWNERSHIP IS A MATTER TO BE DETERMINED ACCORDING TO THE

LAW OF EACH STATE, UNDER THE FAMILIAR DOCTRINE THAT IT IS FOR THE

  STATES TO ESTABLISH FOR THEMSELVES SUCH RULES OF PROPERTY AS THEY

  DEEM EXPEDIENT WITH RESPECT TO THE NAVIGABLE WATERS WITHIN THEIR

  BORDERS AND THE RIPARIAN LANDS ADJACENT TO THEM . . . BUT THESE

  DISPOSITIONS ARE IN EACH CASE LIMITED BY THE INTERSTATE BOUNDARY,

  AND CANNOT BE PERMITTED TO PRESS BACK THE BOUNDARY LINE FROM

  WHERE OTHERWISE IT SHOULD BE LOCATED." 

THE STATES MAY SUBMIT A PROPOSED DECREE IN ACCORD WITH THIS
OPINION.  IF THE STATES CANNOT AGREE, THE SPECIAL MASTER IS REQUESTED,
AFTER APPROPRIATE HEARING, TO PREPARE AND SUBMIT A RECOMMENDED DECREE. 

IT IS SO ORDERED. 

/1/  IOWA CODE 1971, P. LXIV; IOWA ACTS 1943, C. 306; NEBRASKA LAWS
1943, C. 130; ACT OF JULY 12, 1943, 57 STAT. 494. 

LEAVE TO FILE THE ACTION WAS GRANTED IN 1965.  379 U.S. 876 (1964);
379 U.S. 996 (1965); 392 U.S. 918 (1968); 393 U.S. 910 (1968).  SENIOR
JUDGE JOSEPH P. WILLSON COMPLETED THE CASE AFTER EXTENSIVE HEARINGS AND
FILED HIS REPORT ON NOVEMBER 9, 1971.  404 U.S. 933 (1971).  THE
EXCEPTIONS OF THE STATES WERE ORALLY ARGUED BEFORE THIS COURT ON MARCH
29, 1972. 

IOWA'S EXCEPTION I RENEWS THE OBJECTION TO THE COURT'S JURISDICTION
THAT WAS OVERRULED WHEN LEAVE TO FILE WAS GRANTED.  WE OVERRULE THE
EXCEPTION.  "JUST AS THIS COURT HAS POWER TO SETTLE DISPUTES BETWEEN
STATES WHERE THERE IS NO COMPACT, IT MUST HAVE FINAL POWER TO PASS UPON
THE MEANING AND VALIDITY OF COMPACTS."  WEST VIRGINIA EX REL. DYER V.
SIMS, 341 U.S. 22, 28 (1951); CONST. ART. III, SEC. 2; 28 U.S.C. 1251. 

/2/  REPORT 63, 65, 67, 68, 80. 

/3/  EACH STATE LEGISLATURE ADOPTED A STATUTE TO EVIDENCE ITS
AGREEMENT TO THE COMPACT.  SECTIONS 2 AND 3 OF EACH STATUTE CREATE
OBLIGATIONS RECIPROCATED BY THE OTHER STATE IN SECS. 2 AND 3 OF ITS
STATUTE.  IN THE IOWA STATUTE THE SECTIONS ARE: 

"SEC. 2.  THE STATE OF IOWA HEREBY CEDES TO THE STATE OF NEBRASKA
AND RELINQUISHES JURISDICTION OVER ALL LANDS NOW IN IOWA BUT LYING
WESTERLY OF SAID BOUNDARY LINE AND CONTIGUOUS TO LANDS IN NEBRASKA. 

"SEC. 3.  TITLES, MORTGAGES, AND OTHER LIENS GOOD IN NEBRASKA SHALL
BE GOOD IN IOWA AS TO ANY LANDS NEBRASKA MAY CEDE TO IOWA AND ANY
PENDING SUITS OR ACTIONS CONCERNING SAID LANDS MAY BE PROSECUTED TO
FINAL JUDGMENT IN NEBRASKA AND SUCH JUDGMENTS SHALL BE ACCORDED FULL
FORCE AND EFFECT IN IOWA." 

/4/  THE AREAS FORMED BEFORE 1943 ARE NOTTLEMAN ISLAND, SCHEMMEL
ISLAND, ST. MARY'S BEND, AULDON BAR, COPELAND BEND, STATE LINE ISLAND,
WILSON ISLAND, DEER ISLAND, AND A PORTION OF WINNEBAGO BEND.  REPORT
106, 165. 

THE AREAS FORMED SINCE 1943 ARE DAKOTA BEND, OMADI BEND, BETWEEN
OMADI AND BROWERS BENDS, SNYDER BEND, GLOVER'S POINT BEND, RABBIT
ISLAND, UPPER MONONA BEND, MONONA BEND, BLACKBIRD BEND, TIEVILLE BEND,
UPPER DECATUR BEND, MIDDLE DECATUR BEND, LOWER DECATUR BEND, LOUISVILLE
BEND, BLENCOE BEND, LITTLE SIOUX BEND, BULLARD BEND, SOLDIER BEND,
SANDY POINT BEND, TYSON BEND, AND CALIFORNIA BEND.  ID., AT 107. 

/5/  ON MARCH 18, 1963, IOWA FILED, IN THE DISTRICT COURT FOR MILLS
COUNTY, STATE OF IOWA V. DARWIN MERRIT BABBIT ET AL., EQUITY NO. 17433
TO QUIET TITLE TO NOTTLEMAN ISLAND.  ON MARCH 26, 1963, IOWA FILED, IN
THE DISTRICT COURT OF FREMONT COUNTY, STATE OF IOWA V. HENRY E.
SCHEMMEL ET AL., EQUITY NO. 19765 TO QUIET TITLE TO SCHEMMEL ISLAND. 
PROCEEDINGS IN THE ACTIONS HAVE BEEN SUSPENDED PENDING OUR DECISION. 

/6/  EXCEPTIONS OF THE STATE OF NEBRASKA, NO. 6, P. 8, AND NO. 12,
P. 11.  IOWA CONCEDES THAT THE EXCEPTIONS ARE WELL TAKEN.  IOWA REPLY
5, 7.  THE ERRORS WILL BE DEEMED CORRECTED AS SUGGESTED BY THE
EXCEPTIONS. 

/7/  REPORT 88-89. 

/8/  ID., AT 174.  THE SPECIAL MASTER FOUND, ALTERNATIVELY, THAT IF
HIS CONSTRUCTION OF SECS. 2 AND 3 WAS NOT ACCEPTED, NEVERTHELESS THE
LANDOWNERS MET THE BURDEN OF PROVING THAT NOTTLEMAN AND SCHEMMEL
ISLANDS WERE ACTUALLY ON THE NEBRASKA SIDE OF THE ORIGINAL BOUNDARY. 
SINCE WE AGREE WITH THE SPECIAL MASTER'S CONSTRUCTION, WE CONSIDER NO
EXCEPTIONS ADDRESSED TO THOSE FINDINGS. 

/9/  IN IOWA'S REPLY, FILED JANUARY 19, 1972, IOWA FOR THE FIRST
TIME IN THIS PROTRACTED LITIGATION RETRACTS ITS CONCESSION, MADE OFTEN
AND THROUGHOUT THE PROCEEDINGS, THAT KINKEAD ESTABLISHED THIS PRINCIPLE
OF NEBRASKA LAW.  IN ITS REPLY, AT 15-16, IOWA CONTENDS THAT "THE
COMMON LAW OF THE STATE OF NEBRASKA DID NOT IN FACT GIVE THE NEBRASKA
RIPARIAN OWNERS ALONG THE MISSOURI RIVER TITLE OR OWNERSHIP OF THE BED
OF THE NAVIGABLE CHANNEL OF THE RIVER, AND THEY ACQUIRED NO PROPERTY
RIGHT TO SUCH BED UNTIL IT WAS ABANDONED BY THE RIVER."  OUR READING OF
THE NEBRASKA CASES SATISFIES US THAT THE ARGUMENT IS FRIVOLOUS. 

/10/  REPORT 68-69.  CLAIMANTS TO TITLES TO AREAS OF NOTTLEMAN ISLAND
RESTED AT LEAST IN PART ON THE NEBRASKA LAW OF ADVERSE POSSESSION. 
REPORT 121-126. 

/11/  ID., AT 174-175. 

/12/  ID., AT 201; SEE N. 5, SUPRA. 

/13/  ID., AT 193. 

/14/  ID., AT 192. 

HOWARD H. MOLDENHAUER, SPECIAL ASSISTANT ATTORNEY GENERAL OF
NEBRASKA, ARGUED THE CAUSE FOR PLAINTIFF.  WITH HIM ON THE BRIEFS WERE
CLARENCE A. H. MEYER, ATTORNEY GENERAL, AND JOSEPH R. MOORE, SPECIAL
ASSISTANT ATTORNEY GENERAL. 

MICHAEL MURRAY, SPECIAL ASSISTANT ATTORNEY GENERAL OF IOWA, ARGUED
THE CAUSE FOR DEFENDANT.  WITH HIM ON THE BRIEFS WERE RICHARD C.
TURNER, ATTORNEY GENERAL, AND MANNING WALKER, SPECIAL ASSISTANT
ATTORNEY GENERAL. 
..END :





















AFFILIATED UTE CITIZENS V. UNITED STATES, 406 U.S. 128 


       AFFILIATED UTE CITIZENS OF UTAH ET AL. V. UNITED STATES ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 70-78.  ARGUED OCTOBER 18, 1971-- DECIDED APRIL 24,

           1972 


THE UTE PARTITION ACT WAS DESIGNED TO PROVIDE FOR THE PARTITION AND
DISTRIBUTION OF THE TRIBE'S ASSETS BETWEEN THE MIXED-BLOOD AND FULL
BLOOD MEMBERS; FOR TERMINATION OF FEDERAL SUPERVISION OVER THE TRUST
AND RESTRICTED PROPERTY OF MIXED-BLOODS; AND FOR A DEVELOPMENT PROGRAM
FOR THE FULL-BLOODS WITH A VIEW TOWARD TERMINATING FEDERAL SUPERVISION
OF THEM.  IN ADDITION TO CASH AND LAND, THE TRIBE OWNED OIL, GAS, AND
MINERAL RIGHTS (PRINCIPALLY OIL SHALE DEPOSITS UNDERLYING THE
RESERVATION) AND UNADJUDICATED AND UNLIQUIDATED CLAIMS AGAINST THE
GOVERNMENT.  THE ACT PROVIDED THAT UPON PUBLICATION OF THE FINAL
MEMBERSHIP ROLLS, THE TRIBAL BUSINESS COMMITTEE (REPRESENTING THE FULL
BLOODS) AND THE MIXED-BLOODS'"AUTHORIZED REPRESENTATIVES" WERE TO START
DIVIDING ASSETS THAT COULD BE PRACTICABLY DISTRIBUTED, BASED UPON THE
RELATIVE NUMBER OF PERSONS IN EACH GROUP, WITH A FURTHER PLAN TO BE
PREPARED FOR DISTRIBUTING THE MIXED-BLOODS' ASSETS TO INDIVIDUAL
MEMBERS.  AFTER EACH MIXED-BLOOD HAD RECEIVED HIS DISTRIBUTIVE SHARE,
FEDERAL RESTRICTIONS WERE TO BE REMOVED EXCEPT AS TO THE REMAINING
INTEREST IN TRIBAL PROPERTY.  THE ASSETS NOT PRACTICABLY DISTRIBUTABLE
WERE TO BE JOINTLY MANAGED BY THE COMMITTEE AND THE MIXED-BLOODS'
REPRESENTATIVES.  UNDER THE ACT, THE MIXED-BLOODS, BY WAY OF SELECTING
THEIR REPRESENTATIVES, ORGANIZED THE AFFILIATED UTE CITIZENS (AUC) AS
AN UNINCORPORATED ASSOCIATION, WHICH, AS AUTHORIZED BY THE STATUTE,
CREATED THE UTE DISTRIBUTION CORP.  (UDC) TO MANAGE (JOINTLY WITH THE
COMMITTEE) THE OIL, GAS, AND MINERAL RIGHTS AND UNADJUDICATED OR
UNLIQUIDATED CLAIMS AGAINST THE GOVERNMENT AS PART OF THE PLAN FOR
DISTRIBUTING ASSETS TO INDIVIDUAL MIXED-BLOODS.  UDC ISSUED 10 SHARES
OF ITS STOCK IN THE NAME OF EACH MIXED-BLOOD AND MADE AN AGREEMENT WITH
FIRST SECURITY BANK OF UTAH (THE BANK) FOR THE BANK TO BECOME THE UDC
STOCK TRANSFER AGENT, THE BANK TO HOLD THE STOCK CERTIFICATES AND ISSUE
RECEIPTS TO THE SHAREHOLDERS.  UNDER UDC'S ARTICLES, A MIXED-BLOOD
SHAREHOLDER DESIRING TO DISPOSE OF HIS STOCK PRIOR TO AUGUST 27, 1964,
HAD TO GIVE FIRST-REFUSAL RIGHTS TO TRIBE MEMBERS, ABSENT WHICH NO
STOCK SALE WAS VALID.  A SALE COULD BE MADE TO A NON-MEMBER ONLY IF NO
MEMBER ACCEPTED THE OFFER, AND THE PRICE COULD BE NO LOWER THAN THAT
OFFERED TO MEMBERS.  THE UDC CERTIFICATES WERE TO BEAR A STAMP
REVEALING THESE CONDITIONS, ALONG WITH A CAVEAT THAT THE CERTIFICATES
DID NOT REPRESENT ORDINARY CORPORATE SHARES; THAT THE STOCK'S FUTURE
VALUE COULD NOT BE DETERMINED; AND THAT THE STOCK SHOULD BE RETAINED
FOR THE SHAREHOLDER'S BENEFIT.  UPON THE SALE TO A NONMEMBER, THE
SELLER WAS TO FURNISH AN AFFIDAVIT TO THE RESERVATION SUPERINTENDENT
STATING THE AMOUNT HE RECEIVED.  THE FEDERAL TRUST RELATIONSHIP
INVOLVING THE DIVIDED ASSETS CONTEMPLATED BY THE ACT WAS TERMINATED BY
PROCLAMATION OF THE SECRETARY OF THE INTERIOR EFFECTIVE AUGUST 27,
1961.  AUC CASE.  AUC, ACTING FOR ITSELF AND ITS 490 MIXED-BLOOD
MEMBERS, IN APRIL 1968 SUED THE UNITED STATES FOR A PRO RATA
DISTRIBUTION TO THE INDIVIDUAL MEMBERS OF THE MIXED-BLOODS' 27% OF THE
MINERAL ESTATE UNDERLYING THE RESERVATION AND FOR A DETERMINATION THAT
AUC AND NOT UDC WAS ENTITLED TO MANAGE THAT PROPERTY JOINTLY WITH THE
COMMITTEE.  JURISDICTION WAS ASSERTED UNDER 25 U.S.C. 345 AND 28 U.S.C.
1399 AND 2409.  THE DISTRICT COURT GRANTED THE GOVERNMENT'S MOTION TO
DISMISS, AND THE COURT OF APPEALS AFFIRMED.  REYOS CASE.  IN FEBRUARY
1965, A GROUP OF MIXED-BLOODS (12 OF WHOM WERE SELECTED AS "BELLWETHER
PLAINTIFFS" FOR INITIAL TRIAL PURPOSES) SUED THE BANK, TWO BANK
EMPLOYEES (GALE AND HASLEM) AND (UNDER THE TORT CLAIMS ACT) THE UNITED
STATES, CHARGING VIOLATIONS OF THE SECURITIES EXCHANGE ACT OF 1934 AND
THE SEC'S RULE 10B-5, WHICH PROHIBITS "ANY DEVICE, SCHEME, OR ARTIFICE
TO DEFRAUD" IN CONNECTION WITH SECURITIES TRANSACTIONS.  THE CLAIMED
VIOLATIONS INVOLVED PLAINTIFFS' SALES OF UDC SHARES IN 1963 AND 1964
(SOME MADE BEFORE AND SOME AFTER AUGUST 27).  THE DISTRICT COURT, INTER
ALIA, FOUND THAT MIXED-BLOODS HAD SOLD 1,387 SHARES OF UDC STOCK TO
NONMEMBERS, HASLEM BUYING 50 SHARES (AFTER AUGUST 27, 1964) AND GALE 63
(44 BEFORE THAT DATE AND 19 AFTER).  THE 12 PLAINTIFFS SOLD 120 SHARES,
GALE BUYING 10 AND HASLEM SIX.  THIRTY-TWO OTHER WHITES BOUGHT SHARES
FROM MIXED-BLOODS DURING THE 1963-1964 PERIOD.  IN 1964-1965 MIXED
BLOODS SOLD SHARES AT $300 TO $700 PER SHARE, WHILE THE PRICE RANGE ON
TRANSFER BETWEEN WHITES WAS $500 TO $700.  GALE AND HASLEM RECEIVED
VARIOUS COMMISSIONS FOR THEIR SERVICES IN CONNECTION WITH TRANSFERS OF
UDC STOCK FROM MIXED-BLOODS TO NONMEMBERS, SOLICITED CONTRACTS FOR OPEN
PURCHASES OF UDC STOCK ON BANK PREMISES DURING BUSINESS HOURS, AND
PREPARED THE NECESSARY AFFIDAVITS AND OTHER PAPERS, USING, AT BEST,
"INFORMAL" PROCEDURES.  THE DISTRICT COURT CONCLUDED THAT THE
GOVERNMENT HAD REASON TO KNOW OF THE SALES TO NON-INDIANS AND FAILED TO
PERFORM ITS DUTY TO THE MIXED-BLOODS TO DISCOURAGE AND PREVENT THE
SALES; THAT GALE AND HASLEM HAD DEVISED A SCHEME TO ACQUIRE FOR
THEMSELVES AND OTHERS UDC SHARES AT LESS THAN THEIR FAIR VALUE; AND
THAT THE BANK HAD NOTICE OF THE EMPLOYEES'  IMPROPER ACTIVITIES.  THE
COURT FOUND THAT EACH OF THE DEFENDANTS (WITH CERTAIN EXCEPTIONS
APPLICABLE TO THE GOVERNMENT) WAS LIABLE TO EACH OF THE 12 PLAINTIFFS,
AND ASSESSED DAMAGES BY USING A $1,500-PER-SHARE VALUE FOR THE UDC
STOCK AS OF THE TIMES OF THE SALES.  THE COURT REACHED THAT FIGURE
AFTER TAKING ACCOUNT OF THE OIL SHALE DEPOSITS UNDERLYING THE
RESERVATION, ALONG WITH GAS, COAL, AND OTHER MINERALS; PETITIONERS'
REMAINING INTERESTS IN AN INDIAN CLAIMS COMMISSION AWARD; UNADJUDICATED
CLAIMS AGAINST THE GOVERNMENT; THE SPECIFIC PRICES FOR UDC SHARE SALES
BY MIXED-BLOODS TO WHITES; THE FACT THAT MIXED-BLOODS (WHO WERE UNDER
HEAVY SELLING PRESSURE) WERE NOT SO WELL INFORMED ABOUT THE STOCK'S
POTENTIAL VALUE AS WERE WHITES; THE INFLUENCE OF GALE'S AND HASLEM'S
IMPROPER ACTIVITIES ON SELLING PRICES; OPINION EVIDENCE AS TO WORTH
ABOUT $700 PER SHARE; AND OTHER FACTORS.  THE MEASURE OF DAMAGES FOR
EACH SELLER, THE COURT HELD, WAS THE DIFFERENCE BETWEEN THE FAIR VALUE
OF THE UDC SHARES AT THE TIME OF SALE AND THE FAIR VALUE OF WHAT THE
SELLER RECEIVED.  THE COURT OF APPEALS REVERSED IN SUBSTANTIAL PART,
HOLDING THAT AFTER THE 1961 TERMINATION THE GOVERNMENT OWED PETITIONERS
NO DUTY IN CONNECTION WITH THE UDC STOCK SALES; THAT GALE AND HASLEM
WERE LIABLE ONLY WHERE THEY PERSONALLY PURCHASED SHARES FOR THEIR OWN
ACCOUNTS OR FOR RESALE TO AN UNDISCLOSED PRINCIPAL AT A HIGHER PRICE,
BUT NOT IN OTHER INSTANCES, WHERE THEIR ACTIONS WERE HELD TO BE ONLY
MINISTERIAL; AND THAT THE BANK'S LIABILITY DID NOT EXTEND BEYOND GALE'S
AND HASLEM'S.  THE DISTRICT COURT'S VALUATION OF THE UDC STOCK WAS HELD
TO LACK RECORD SUPPORT, AND THE PROPER MEASURE OF DAMAGES WAS HELD TO
BE "THE PROFIT MADE BY THE DEFENDANT ON RESALE" OR, ABSENT A RESALE,
"THE PREVAILING MARKET PRICE AT THE TIME OF THE PURCHASE FROM THE
PLAINTIFFS."  A PETITION FOR CERTIORARI COVERING BOTH THE AUC CASE AND
THE REYOS CASE WAS GRANTED.  HELD:

        THE AUC CASE 

1.  THE AUC CASE WAS PROPERLY DISMISSED FOR WANT OF JURISDICTION AS
AN UNCONSENTED SUIT AGAINST THE UNITED STATES.  PP. 141-143. 

     (A) THOUGH UNDER 25 U.S.C. 345, THE GOVERNMENT HAS CONSENTED
TO

  SUITS TO ENFORCE AN INDIAN'S RIGHT TO AN ALLOTMENT OF LAND, THE

 AUC'S CLAIMED INTEREST IN THE MINERAL ESTATE HAS NOT BEEN MADE

  SUBJECT TO AN ALLOTMENT.  PP. 142-143. 

     (B) TITLE 28 U.S.C. 1399 AND 2409 ARE INAPPLICABLE, SINCE
THOSE

  PROVISIONS CONFER JURISDICTION WITH RESPECT TO PARTITION SUITS

  WHERE THE UNITED STATES IS A TENANT IN COMMON OR A JOINT TENANT,

  WHICH IS NOT THE SITUATION HERE.  P. 143. 

2.  THE UDC AND NOT THE AUC IS ENTITLED TO MANAGE JOINTLY WITH THE
FULL-BLOODS THE OIL, GAS, AND MINERAL RIGHTS UNDERLYING THE
RESERVATION.  PP. 143-144. 

        THE REYOS CASE 

3.  THE UTE PARTITION ACT AND THE 1961 TERMINATION PROCLAMATION
ENDED FEDERAL SUPERVISION OVER THE TRUST AND THE MIXED-BLOODS'
RESTRICTED PROPERTY, INCLUDING THE UDC SHARES, AND THE RIGHT OF FIRST
REFUSAL SPECIFIED IN THE UDC CORPORATE ARTICLES CREATED NO DUTY ON THE
GOVERNMENT'S PART TO THE TERMINATED MIXED-BLOODS SEEKING TO SELL THEIR
SHARES.  PP. 149-150. 

4.  THE COURT OF APPEALS CORRECTLY DETERMINED THAT GALE AND HASLEM
VIOLATED RULE 10B-5 BY MAKING MISSTATEMENTS OF MATERIAL FACT, NAMELY,
THAT THE PREVAILING MARKET PRICE OF THE UDC SHARES WAS THE FIGURE AT
WHICH THEIR PURCHASES WERE MADE, BUT THE COURT ERRED IN HOLDING THAT
THERE WAS NO VIOLATION OF THE RULE UNLESS THE RECORD DISCLOSED EVIDENCE
OF RELIANCE ON THE MISREPRESENTATIONS.  ALL THAT IS NECESSARY IS THAT
THE FACTS WITHHELD BE MATERIAL IN THE SENSE THAT A REASONABLE INVESTOR
MIGHT HAVE CONSIDERED THEM IMPORTANT IN THE MAKING OF HIS DECISION. 
PP. 150-154. 

5.  THE BANK'S LIABILITY IS COEXTENSIVE WITH THAT OF GALE AND
HASLEM.  P. 154. 

6.  THE CORRECT MEASURE OF DAMAGES UNDER SEC. 28 OF THE SECURITIES
EXCHANGE ACT OF 1934 IS THE DIFFERENCE BETWEEN THE FAIR VALUE OF WHAT
THE MIXED-BLOOD SELLER RECEIVED FOR HIS STOCK AND WHAT HE WOULD HAVE
RECEIVED HAD THERE BEEN NO FRAUDULENT CONDUCT (EXCEPT WHERE THE
DEFENDANT RECEIVED MORE THAN THE SELLER'S ACTUAL LOSS, IN WHICH CASE
THE DEFENDANT'S PROFIT IS THE AMOUNT OF DAMAGES).  PP. 154-155. 

7.  THE DISTRICT COURT'S VALUATION OF $1,500 PER UDC SHARE HAS
ADEQUATE RECORD SUPPORT.  PP. 155-156. 

431 F.2D 1349, AFFIRMED; 431 F.2D 1337, AFFIRMED IN PART, REVERSED
IN PART. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BRENNAN, STEWART, WHITE, AND MARSHALL, JJ., JOINED. 
DOUGLAS, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN
PART, POST, P. 157.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THESE TWO CONSOLIDATED CASES CENTER IN THE UTE INDIAN SUPERVISION
TERMINATION ACT OF AUGUST 27, 1954 (HEREAFTER PARTITION ACT), 68 STAT.
868, AS AMENDED, 70 STAT. 936 AND 76 STAT. 597, 25 U.S.C. 677-677AA;
THE SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 881, AS AMENDED.  SECS.
3(A)(4) AND (5), 10(B) AND 15(C)(1), 15 U.S.C. 78CA)(4) AND (5), 78JB)
AND 78OC)(1); THE EMERGENCE OF AFFILIATED UTE CITIZENS OF THE STATE OF
UTAH (AUC), AN UNINCORPORATED ASSOCIATION, AND OF UTE DISTRIBUTION
CORP. (UDC), A UTAH CORPORATION; AND THE ALLEGED VICTIMIZATION OF
INDIAN SHAREHOLDERS IN THEIR SALES OF UDC SHARES. 

        I

BACKGROUND 

THE UTE PARTITION ACT /1/  PERTAINED TO THE UTE INDIAN TRIBE OF THE
UINTAH AND OURAY RESERVATION IN UTAH.  AT THE TIME OF THE ACT'S
ADOPTION THE TRIBE HAD A MEMBERSHIP OF ABOUT 1,765, /2/  CONSISTING OF
439 MIXED-BLOODS /3/ AND 1,326 FULL-BLOODS.  SECTION 1 OF THE ACT
STATED ITS PURPOSE, NAMELY "TO PROVIDE FOR THE PARTITION AND
DISTRIBUTION OF THE ASSETS OF THE . . . TRIBE . . . BETWEEN THE MIXED
BLOOD AND FULL-BLOOD MEMBERS THEREOF; FOR THE TERMINATION OF FEDERAL
SUPERVISION OVER THE TRUST, AND RESTRICTED PROPERTY, OF THE MIXED-BLOOD
MEMBERS OF SAID TRIBE; AND FOR A DEVELOPMENT PROGRAM FOR THE FULL-BLOOD
MEMBERS THEREOF, TO ASSIST THEM IN PREPARING FOR TERMINATION OF FEDERAL
SUPERVISION OVER THEIR PROPERTY."  25 U.S.C. 677.  THE THEN-ESTIMATED
VALUE OF THE CASH, ACCOUNTS RECEIVABLE, AND LAND OWNED BY THE TRIBE WAS
$20,702,885.  /4/  THE TRIBE POSSESSED ADDITIONAL ASSETS CONSISTING OF
OIL, GAS, AND MINERAL RIGHTS (PRINCIPALLY OIL SHALE DEPOSITS UNDERLYING
THE RESERVATION), AND UNADJUDICATED AND UNLIQUIDATED CLAIMS AGAINST THE
UNITED STATES. 

THE ROLLS OF FULL-BLOOD MEMBERS AND MIXED-BLOOD MEMBERS, AND FOR THE
FINALITY OF THOSE ROLLS.  SECTION 5, AS AMENDED, 25 U.S.C. 677D,
PROVIDED THAT UPON THE PUBLICATION OF THE FINAL ROLLS "THE TRIBE SHALL
THEREAFTER CONSIST EXCLUSIVELY OF FULL-BLOOD MEMBERS," AND THAT MIXED
BLOOD MEMBERS "SHALL HAVE NO INTEREST THEREIN EXCEPT AS OTHERWISE
PROVIDED" IN THE ACT. 

ROLLS HAD BEEN PUBLISHED, THE TRIBAL BUSINESS COMMITTEE, REPRESENTING
THE FULL-BLOODS, AND THE "AUTHORIZED REPRESENTATIVES" OF THE MIXED
BLOODS WERE TO "COMMENCE A DIVISION OF THE ASSETS OF THE TRIBE THAT ARE
THEN SUSCEPTIBLE TO EQUITABLE AND PRACTICABLE DISTRIBUTION."  THIS WAS
TO BE BASED "UPON THE RELATIVE NUMBER OF PERSONS COMPRISING THE FINAL
MEMBERSHIP ROLL OF EACH GROUP."  /5/  UPON THE ADOPTION OF A PLAN OF
DIVISION, THE MIXED-BLOODS WERE TO PREPARE A FURTHER PLAN FOR THE
DISTRIBUTION OF THEIR GROUP'S ASSETS TO THE INDIVIDUAL MEMBERS.  SEC.
13 OF THE ACT, 25 U.S.C. 677L.  AFTER EACH MIXED-BLOOD HAD RECEIVED HIS
DISTRIBUTIVE SHARE, DIRECTLY OR IN WHOLE OR IN PART THROUGH THE DEVICE
OF A CORPORATION OR OTHER ENTITY IN WHICH HE HAD AN INTEREST, FEDERAL
RESTRICTIONS WERE TO BE REMOVED EXCEPT AS TO ANY REMAINING INTEREST IN
TRIBAL PROPERTY, THAT IS, THE UNADJUDICATED OR UNLIQUIDATED CLAIMS
AGAINST THE UNITED STATES, GAS, OIL, AND MINERAL RIGHTS, AND OTHER
TRIBAL ASSETS NOT SUSCEPTIBLE OF EQUITABLE AND PRACTICABLE
DISTRIBUTION.  SEC. 16, 25 U.S.C. 677O.  THE SECRETARY OF THE INTERIOR
THEN WAS TO ISSUE A PROCLAMATION "DECLARING THAT THE FEDERAL TRUST
RELATIONSHIP TO SUCH INDIVIDUAL IS TERMINATED."  SEC. 23, 25 U.S.C.
677V.  THOSE ASSETS, SUCH AS THE MINERAL ESTATE, EXCEPTED FROM THE
DIVISION PLANS, WERE TO BE "MANAGED JOINTLY BY THE TRIBAL BUSINESS
COMMITTEE AND THE AUTHORIZED REPRESENTATIVES OF THE MIXED-BLOOD
GROUP."  SEC. 10, 25 U.S.C. 677I. 

ORGANIZE, TO ADOPT A CONSTITUTION AND BY LAWS, AND TO PROVIDE, BY THAT
CONSTITUTION, FOR THE SELECTION OF AUTHORIZED REPRESENTATIVES WITH
POWER "TO TAKE ANY ACTION THAT IS REQUIRED BY (THE ACT) TO BE TAKEN BY
THE MIXED-BLOOD MEMBERS AS A GROUP." 

PURSUANT TO THIS GRANT OF POWER THE MIXED-BLOODS, IN 1956, ORGANIZED
AUC AS AN UNINCORPORATED ASSOCIATION.  AUC'S CONSTITUTION, ART. V, SEC.
1(B), EMPOWERED ITS BOARD OF DIRECTORS TO DELEGATE TO CORPORATIONS
ORGANIZED IN ACCORDANCE WITH THE ACT "SUCH POWERS AND AUTHORITY AS MAY
BE NECESSARY OR DESIRABLE IN THE ACCOMPLISHMENT OF THE OBJECTS AND
PURPOSES FOR WHICH SAID CORPORATIONS MAY BE SO ORGANIZED." 

UDC WAS INCORPORATED IN 1958 WITH THE STATED PURPOSE "TO MANAGE
JOINTLY WITH THE TRIBAL BUSINESS COMMITTEE OF THE FULL-BLOOD MEMBERS OF
THE UTE INDIAN TRIBE . . . ALL UNADJUDICATED OR UNLIQUIDATED CLAIMS
AGAINST THE UNITED STATES, ALL GAS, OIL, AND MINERAL RIGHTS OF EVERY
FIND, AND ALL OTHER ASSETS NOT SUSCEPTIBLE TO EQUITABLE AND PRACTICABLE
DISTRIBUTION TO WHICH THE MIXED-BLOOD MEMBERS OF THE SAID TRIBE . . .
ARE NOW, OR MAY HEREAFTER BECOME ENTITLED . . . AND TO RECEIVE THE
PROCEEDS THEREFROM AND TO DISTRIBUTE THE SAME TO THE STOCKHOLDERS OF
THIS CORPORATION . . . " 

THE FORMATION OF UDC WAS PART OF THE PLAN FORMULATED BY THE MIXED
BLOODS FOR THE DISTRIBUTION OF ASSETS TO THE INDIVIDUAL MEMBERS OF
THEIR GROUP.  BY A RESOLUTION ADOPTED BY A 42-5 VOTE AT A SPECIAL
MEETING AT WHICH A QUORUM WAS PRESENT AND VOTING, AUC APPROVED THE
ARTICLES OF UDC.  THE SECRETARY ALSO APPROVED THEM.  IN JANUARY 1959
THE AUC DIRECTORS BY A UNANIMOUS VOTE (5-0) IRREVOCABLE DELEGATED
AUTHORITY TO UDC-- AND, INDEED, TO TWO OTHER UTAH CORPORATIONS OF THE
MIXED-BLOODS, ANTELOPE-SHEEP RANGE COMPANY AND ROCK CREEK CATTLE RANGE
COMPANY, SEE SEC. 13 OF THE ACT, 25 U.S.C. 677L(3)-- TO ACCOMPLISH THE
PURPOSES FOR WHICH THEY WERE FORMED.  UDC THEN ISSUED 10 SHARES OF ITS
CAPITAL STOCK IN THE NAME OF EACH MIXED-BLOOD UTE, A TOTAL OF 4,900
SHARES.  UDC AND FIRST SECURITY BANK OF UTAH, N.A. (THE BANK), EXECUTED
A WRITTEN AGREEMENT DATED DECEMBER 31, 1958, BY WHICH THE BANK BECAME
TRANSFER AGENT FOR UDC STOCK.  UDC APPARENTLY ALSO DECIDED AT THIS TIME
NOT TO DELIVER THE CERTIFICATES FOR ITS SHARES TO THE SHAREHOLDERS BUT,
INSTEAD, TO DEPOSIT THEM WITH THE BANK; THE BANK WAS THEN TO ISSUE
RECEIPTS TO THE RESPECTIVE SHAREHOLDERS.  COUNSEL ADVISED THE BANK THAT
THIS WAS "BECAUSE OF SOME RATHER UNFAVORABLE EXPERIENCES HAD IN THE
INDIAN SERVICE WITH THE LOSS OF VALUABLE INSTRUMENTS." 

UDC'S ARTICLES PROVIDED THAT IF A MIXED-BLOOD SHAREHOLDER DETERMINED
TO SELL OR DISPOSE OF HIS UDC STOCK AT ANY TIME PRIOR TO AUGUST 27,
1964, THAT IS, WITHIN 10 YEARS FROM THE DATE OF THE PARTITION ACT, HE
WAS FIRST TO OFFER IT TO MEMBERS OF THE TRIBE, BOTH MIXED-BLOOD AND
FULL-BLOOD, IN A FORM APPROVED BY THE SECRETARY; THAT NO SALE OF STOCK
PRIOR TO THAT DATE WAS VALID UNLESS AND UNTIL THAT OFFER WAS MADE; AND
THAT IF THE OFFER WAS NOT ACCEPTED BY ANY MEMBER OF THE TRIBE, THE SALE
TO A NONMEMBER COULD THEN BE MADE BUT AT A PRICE NO LOWER THAN THAT
OFFERED TO THE MEMBERS.  /6/  THE ARTICLES FURTHER PROVIDED THAT ALL
UDC STOCK CERTIFICATES SHOULD HAVE STAMPED THEREON A PRESCRIBED LEGEND
REFERRING TO THOSE SALE CONDITIONS.  /7/  THE CERTIFICATES SO ISSUED
BORE THAT LEGEND.  IN ADDITION, EACH CERTIFICATE HAD ON ITS FACE, IN
RED LETTERING, A WARNING THAT THE CERTIFICATE DID NOT REPRESENT STOCK
IN AN ORDINARY BUSINESS CORPORATION, THAT ITS FUTURE VALUE OR RETURN
COULD NOT BE DETERMINED, AND THAT THE STOCK SHOULD NOT BE SOLD OR
ENCUMBERED BY ITS OWNER, BUT SHOULD BE RETAINED AND PRESERVED FOR THE
BENEFIT OF THE SHAREHOLDER AND HIS FAMILY.  /8/ 

THE UDC SHAREHOLDERS WERE ADVISED OF THE SUBSTANCE OF THIS WARNING
ON SEVERAL OCCASIONS AFTER THE STOCK HAD BEEN ISSUED.  UDC'S PRESIDENT
TESTIFIED THAT MANY RESPONDED BY SAYING THAT THEIR SHARES WERE THEIR
BUSINESS AND THAT THEY COULD DO AS THEY PLEASED WITH THEM. 

IN AUGUST 1960 THE SECRETARY PROMULGATED REGULATIONS SETTING FORTH
THE PROCEDURE A MIXED-BLOOD SHOULD FOLLOW BEFORE EFFECTING A PRE-AUGUST
27, 1964, SALE OF HIS STOCK TO AN OUTSIDER.  25 FED.REG.  7620; 25 CFR
243.1-243.12 (1962).  THESE PRESCRIBED FOR THE SALE OF THE STOCK
ESSENTIALLY THE SAME PROCEDURE REQUIRED UNDER SEC. 15 OF THE ACT, 25
U.S.C. 677N, FOR A MIXED-BLOOD'S DISPOSAL OF HIS INTEREST IN REAL
PROPERTY.  25 CFR 243.12 (1962).  THE SELLER FIRST NOTIFIED THE
SUPERINTENDENT OF THE RESERVATION OF THE PRICE AND TERMS ON WHICH HIS
OFFER WAS MADE.  25 CFR 243.5 (1962).  THE SUPERINTENDENT THEN NOTIFIED
UDC AND THE BUSINESS COMMITTEE OF THE TRIBE AND POSTED NOTICES ABOUT
THE RESERVATION.  25 CFR 243.6 (1962).  IF NO MEMBER ACCEPTED THE
OFFER, THE SUPERINTENDENT SO INFORMED THE OFFEROR, WHO WAS THEN FREE TO
SELL "AT ANY TIME WITHIN SIX MONTHS THEREAFTER TO ANY PERSON AT THE
SAME OR GREATER PRICE AND UPON THE SAME TERMS AND CONDITIONS UPON WHICH
IT WAS OFFERED TO THE MEMBERS."  25 CFR 243.8 (1962).  UPON THE SALE TO
A NONMEMBER, THE SELLER FURNISHED AN AFFIDAVIT TO THE SUPERINTENDENT
STATING THE AMOUNT HE HAD RECEIVED.  THE SUPERINTENDENT PREPARED A
CERTIFICATE THAT THE STOCK HAD FIRST BEEN OFFERED TO MEMBERS AND SENT
THE CERTIFICATE TO THE BANK.  THE BANK ATTACHED IT TO THE STOCK BOOK. 

THE TERMINATION PROCLAMATION, CONTEMPLATED BY SEC. 23 OF THE ACT, 25
U.S.C. 677V, WAS ISSUED AND PUBLISHED BY THE SECRETARY EFFECTIVE AT
MIDNIGHT AUGUST 27, 1961.  26 FED.REG.  8042.  THIS, OF COURSE, DID NOT
PURPORT TO TERMINATE THE TRUST STATUS OF THE UNDIVIDED ASSETS.  CF.
MENOMINEE TRIBE V. UNITED STATES, 391 U.S. 404 (1968). 

        II

        THE PRESENT LITIGATION 

A. THE AUC CASE.  IN APRIL 1968 AUC, ON ITS OWN BEHALF AND AS
REPRESENTATIVE OF ITS 490 MIXED-BLOOD MEMBERS, INSTITUTED SUIT AGAINST
THE UNITED STATES SEEKING (1) PRO RATA DISTRIBUTION TO THE INDIVIDUAL
MEMBERS OF THE 27,16186% /9/  OF THE MINERAL ESTATE UNDERLYING THE
RESERVATION, AND (2) A DETERMINATION THAT AUC AND NOT UDC IS ENTITLED
TO MANAGE THAT PROPERTY JOINTLY WITH THE BUSINESS COMMITTEE OF THE FULL
BLOODS.  JURISDICTION WAS ASSERTED UNDER 25 U.S.C. 345 (AUTHORIZING AN
ACTION AGAINST THE UNITED STATES FOR AN INDIAN ALLOTMENT CLAIM, SEE N.
11, INFRA), AND UNDER 28 U.S.C. 1399 AND 2409 (AUTHORIZING A PARTITION
ACTION WHERE THE UNITED STATES IS A TENANT IN COMMON OR A JOINT
TENANT). 

THE UNITED STATES MOVED TO DISMISS THE COMPLAINT FOR WANT OF SUBJECT
MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM.  THE DISTRICT
COURT GRANTED THIS MOTION ON BOTH GROUNDS.  THE TENTH CIRCUIT
AFFIRMED.  431 F.2D 1349 (1970). 

B. THE REYOS CASE.  IN FEBRUARY 1965 ANITA R. REYOS AND 84 OTHER
MIXED-BLOODS SUED THE BANK, TWO OF THE BANK'S EMPLOYEE-OFFICERS, JOHN
B. GALE AND VERL HASLEM, AND CERTAIN AUTOMOBILE DEALERS, /10/  CHARGING
VIOLATIONS OF THE SECURITIES EXCHANGE ACT OF 1934 AND OF RULE 10B-5 OF
THE SECURITIES AND EXCHANGE COMMISSION.  BY SUBSEQUENT AMENDMENT TO THE
COMPLAINT THE UNITED STATES WAS ADDED AS A PARTY DEFENDANT. 
JURISDICTION WAS ASSERTED UNDER 28 U.S.C. 1331 AND 1346(B). 

THE PARTIES SELECTED 12 "BELLWETHER PLAINTIFFS" FROM AMONG THE 85
FOR PURPOSES OF INITIAL TRIAL.  THESE PLAINTIFFS HAD SOLD UDC SHARES TO
VARIOUS NONMEMBERS INCLUDING THE DEFENDANTS GALE AND HASLEM.  THE SALES
TOOK PLACE AFTER THE PROCLAMATION OF TERMINATION OF THE FEDERAL TRUST
RELATIONSHIP. 

THE DISTRICT COURT HELD THE BANK AND THE TWO OFFICER DEFENDANTS
LIABLE FOR DAMAGES TO EACH OF THE 12 PLAINTIFFS.  IT ALSO RULED THAT
THE UNITED STATES POSSESSED, AND DID NOT FULFILL, A DUTY TO PREVENT THE
SALES AND THUS, UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2671-2680,
WAS LIABLE FOR DAMAGES WITH RESPECT TO SALES THAT HAD TAKEN PLACE
BEFORE AUGUST 27, 1964.  IT ALSO RULED, HOWEVER, THAT THE UNITED STATES
WAS NOT LIABLE WITH RESPECT TO SALES AFTER THAT DATE OR TO TWO
PLAINTIFFS WHOM THE COURT FOUND TO BE CONTRIBUTORILY NEGLIGENT.  THE
COURT DETERMINED THAT THE FAIR VALUE OF THE UDC STOCK AT THE TIMES OF
THE PLAINTIFFS' SALES WAS $1,500 PER SHARE.  THE DAMAGES AGAINST THE
TWO INDIVIDUALS AND THE BANK WERE FIXED IN THE AGGREGATE AT
$129,519.56.  DAMAGES AGAINST THE UNITED STATES WERE FIXED IN THE
AGGREGATE AT $77,947.35.  JUDGMENT WAS ENTERED ACCORDINGLY UNDER FED.
RULE CIV. PROC. 54(B). 

THE SEVERAL DEFENDANTS APPEALED AND THE 12 PLAINTIFFS WHOSE CASES
WERE TRIED CROSS-APPEALED.  THE TENTH CIRCUIT REVERSED AND REMANDED. 
431 F.2D 1337 (1970). 

C. ON THE PETITION OF AUC AND THE 12 PLAINTIFFS THIS COURT GRANTED
CERTIORARI IN BOTH CASES BECAUSE OF THE IMPORTANCE OF THE ISSUES FOR
INDIANS WHOSE FEDERAL SUPERVISION IS IN THE COURSE OF TERMINATION.  402
U.S. 905 (1971). 

        III

        THE AUC CASE 

THE TWO CASES, ALTHOUGH DIFFERENT, HAVE THEIR ROOTS IN THE FORMATION
OF UDC, AND IT IS NOT INAPPROPRIATE THAT THE CASES WERE CONSOLIDATED
AND ARE HERE TOGETHER. 

A. AS HEREINABOVE NOTED, AUC IN ITS LITIGATION SEEKS TWO THINGS:
OUTRIGHT DISTRIBUTION OF THE MIXED-BLOODS' PERCENTAGE OF THE MINERAL
ESTATE, AND A DETERMINATION THAT AUC IS ENTITLED TO PARTICIPATE IN
MANAGEMENT WITH THE BUSINESS COMMITTEE OF THE FULL-BLOODS. 

THERE IS, AND CAN BE, NO DISPUTE THAT THE UNITED STATES HOLDS TITLE
TO THE LAND, INCLUDING THE MINERAL INTEREST, CONSTITUTING THE UINTAH
AND OURAY RESERVATION.  PRIOR TO THE 1954 ACT ALL MEMBERS OF THE TRIBE
WERE THE BENEFICIAL OWNERS OF THAT MINERAL INTEREST.  THE DIVISION OF
THE INTEREST BETWEEN THE FULL-BLOODS, ON THE ONE HAND, AND THE MIXED
BLOODS, ON THE OTHER, CAME ABOUT BY REASON OF THE ACT AND OF THE
PROCEDURES SET IN MOTION BY THE ACT.  TO THE EXTENT, THEREFORE, THAT
AUC, BY ITS SUIT, SEEKS DISTRIBUTION TO THE INDIVIDUAL MIXED-BLOODS
WHOM IT PURPORTS TO REPRESENT, IT IS NECESSARILY A SUIT AGAINST THE
UNITED STATES.     THE UNITED STATES, OF COURSE, MAY NOT BE SUED
WITHOUT ITS CONSENT.  UNITED STATES V. SHERWOOD, 312 U.S. 584, 586
(1941).  THIS LONG-ESTABLISHED PRINCIPLE HAS BEEN APPLIED IN ACTIONS
FOR THE POSSESSION OR CONVEYANCE OF REAL ESTATE.  MALONE V. BOWDOIN,
369 U.S. 643 (1962).  IT HAS BEEN APPLIED TO INDIAN LANDS THE TITLE TO
WHICH THE UNITED STATES HOLDS IN TRUST.  MINNESOTA V. UNITED STATES,
305 U.S. 382 (1939); OREGON V. HITCHCOCK, 202 U.S. 60, 70 (1906).  IT
HAS BEEN APPLIED, SPECIFICALLY, IN A SUIT BY AN INDIAN WHO HAS A
BENEFICIAL INTEREST IN LAND.  NAGANAB V. HITCHCOCK, 202 U.S. 473
(1906).  NAGANAB, THEREFORE, CONTROLS THE DISTRIBUTION ASPECT OF THE
AUC CASE UNLESS THE UNITED STATES HAS CONSENTED TO BE SUED. 

THE CONSENT, IT IS CLAIMED, EXISTS IN 25 U.S.C. 345.  /11/  THIS,
HOWEVER, IS AN ALLOTMENT STATUTE.  ALLOTMENT IS A TERM OF ART IN INDIAN
LAW.  U.S. DEPT. OF THE INTERIOR, FEDERAL INDIAN LAW 774 (1958).  IT
MEANS A SELECTION OF SPECIFIC LAND AWARDED TO AN INDIVIDUAL ALLOTTEE
FROM A COMMON HOLDING.  REYNOLDS V. UNITED STATES, 174 F. 212 (CA8
1909).  SEE THE ACT OF FEBRUARY 8, 1887, 24 STAT. 388, AS AMENDED, 25
U.S.C. 331-334.  SECTION 345 AUTHORIZES, AND PROVIDES GOVERNMENTAL
CONSENT FOR, ONLY ACTIONS FOR ALLOTMENT.  FIRST MOON V. WHITE TAIL, 270
U.S. 243 (1926); HARKINS V. UNITED STATES, 375 F.2D 239 (CA10 1967);
UNITED STATES V. PRESTON, 352 F.2D 352, 355 (CA9 1965).  SEE ARENAS V.
UNITED STATES, 322 U.S. 419 (1944). 

ALTHOUGH THE INTEREST IN THE MINERAL ESTATE THAT AUC SEEKS TO HAVE
CONVEYED PRO RATA TO THE INDIVIDUAL MIXED-BLOODS PERHAPS COULD BE MADE
THE SUBJECT OF AN ALLOTMENT, IT HAS NEVER BEEN SO SUBJECTED.  NEITHER
IS IT APPURTENANT TO AN ALLOTMENT.  THE INTEREST RELATES TO THE TRIBAL
LAND OF THE RESERVATION.  IT REMAINS TRIBAL PROPERTY.  FURTHER, SEC. 10
OF THE 1954 ACT, 25 U.S.C. 677I, ITSELF CONTEMPLATED AND PROVIDES
SPECIFICALLY FOR THE NON-ALLOCATION OF THAT INTEREST. 

WE THEREFORE READILY CONCLUDE THAT SEC. 345 HAS NO APPLICATION
HERE.  NEITHER DO 28 U.S.C. 1399 AND 2409 AFFORD A BASIS FOR
JURISDICTION; THEY HAVE APPLICATION ONLY TO PARTITION SUITS WHERE THE
UNITED STATES IS A TENANT IN COMMON OR A JOINT TENANT.  THAT IS NOT
THIS SITUATION. 

THE AUC ACTION, THEREFORE, WAS PROPERLY DISMISSED FOR WANT OF
JURISDICTION. 

B. AUC'S PRAYER FOR A DETERMINATION AS TO MANAGEMENT RIGHTS DESERVES
A FURTHER WORD. 

THE UTE PARTITION ACT WAS THE RESULT OF PROPOSALS INITIATED BY THE
TRIBE ITSELF.  SEE H.R. REP. NO. 2493, 83D CONG., 2D SESS., 2 (1954);
S. REP. NO. 1632, 83D CONG., 2D SESS., 7 (1954).  THE TRIBE ALSO
DRAFTED THE ACT.  ID., AT 3 AND 7, RESPECTIVELY.  IT PROVIDED FOR
ORGANIZATION BY THE MIXED-BLOODS AND "FOR THE SELECTION OF AUTHORIZED
REPRESENTATIVES" WITH POWER TO TAKE ANY ACTION THE ACT REQUIRED TO BE
TAKEN BY THE MIXED-BLOODS AS A GROUP.  SEC. 6, 25 U.S.C. 677E.  AUC WAS
FORMED IN 1956 AND WAS THE PRODUCT OF THIS ORGANIZATIONAL POWER.  ITS
CONSTITUTION AND BYLAWS AUTHORIZE THE DELEGATION OF NECESSARY OR
DESIRABLE POWER OR AUTHORITY TO CORPORATIONS FORMED BY THE MIXED
BLOODS.  UDC WAS FORMED BY MIXED-BLOODS IN 1958 SPECIFICALLY TO MANAGE
MINERAL RIGHTS AND UNADJUDICATED CLAIMS AGAINST THE UNITED STATES
JOINTLY WITH THE BUSINESS COMMITTEE.  AUC APPROVED UDC'S ARTICLES AND
BY RESOLUTION DELEGATED AUTHORITY TO UDC TO ACT IN ACCORD WITH THOSE
ARTICLES. 

THESE STEPS WERE TAKEN PURSUANT TO THE PARTITION ACT.  UDC'S
FORMATION AND STRUCTURE WERE CONTEMPLATED BY THE ACT, AND AUC ITSELF
CREATED AND BREATHED LIFE AND VIGOR INTO UDC.  ALL THIS WAS WITHIN
CONGRESS' POWER.  UNITED STATES V. WALLER, 243 U.S. 452, 462 (1917);
TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286 (1911).  UDC'S LEGITIMACY
WAS FURTHER RECOGNIZED BY ITS ANTICIPATORY EXEMPTION FROM FEDERAL
INCOME TAX, UNDER THE ACT OF AUGUST 2, 1956, SEC. 3, 70 STAT. 936; BY
THE FREEING OF ITS SHARES FROM MORTGAGE, LEVY, ATTACHMENT, AND THE
LIKE, SO LONG AS THE SHARES REMAINED IN THE OWNERSHIP OF THE ORIGINAL
SHAREHOLDER OR HIS HEIRS OR LEGATEES, UNDER THE ACT OF SEPTEMBER 25,
1962, 76 STAT. 597, 598; AND BY THE INCLUSION OF UDC BY NAME AS AN
ENTITY TO RECEIVE THE TRUST FUND RESULTING FROM THE JUDGMENT AGAINST
THE UNITED STATES IN FAVOR OF THE CONFEDERATED BANDS OF UTE INDIANS,
UNDER THE ACT OF AUGUST 1, 1967, 81 STAT. 164, AS AMENDED, 82 STAT.
171, 25 U.S.C. 676A. 

CLEARLY, IT IS UDC AND NOT AUC THAT IS ENTITLED TO MANAGE THE OIL,
GAS, AND MINERAL RIGHTS WITH THE COMMITTEE OF THE FULL-BLOODS. 

        IV

        THE REYOS CASE 

IN THIS CASE THE 85 PLAINTIFFS SOUGHT DAMAGES FOR ALLEGED VIOLATIONS
BY THE DEFENDANTS, IN CONNECTION WITH SALES BY THE PLAINTIFFS OF THEIR
UDC SHARES, OF SEC. 10(B) OF THE SECURITIES EXCHANGE ACT OF 1934, 15
U.S.C. 78JB), /12/  AND OF RULE 10B-5 /13/  PROMULGATED THEREUNDER BY
THE SECURITIES AND EXCHANGE COMMISSION, 17 CFR 240.10B-5.  THE SALES IN
QUESTION WERE EFFECTED IN 1963 AND 1964; SOME WERE MADE BEFORE, AND
SOME WERE MADE AFTER, THE EXPIRATION OF THE SECRETARY'S SPECIFIED 10
YEAR PERIOD FOLLOWING THE PASSAGE OF THE UTE PARTITION ACT. 

THE CLAIMS CENTER IN THE FACTS THAT THE BANK, BY ITS AGREEMENT WITH
UDC, WAS THE TRANSFER AGENT FOR UDC SHARES; THAT IT HAD PHYSICAL
POSSESSION OF ALL THE STOCK CERTIFICATES WITH THEIR SPECIFIC LEGEND OF
CAUTION AND WARNING; THAT, BECAUSE OF THE BANK'S POSSESSION, A
SHOREHOLDER'S POSSIBLE CONTACT WITH, AND AWARENESS OF, THE LEGEND WAS
MINIMIZED; THAT THE BANK HANDLED THE DOCUMENTS IMPLEMENTING THE FIRST
REFUSAL PROCEDURE; AND THAT THE MIXED-BLOOD WHO CONTEMPLATED THE SALE
OF HIS SHARES WAS COMPELLED TO DEAL THROUGH THE BANK. 

THE DISTRICT COURT MADE LENGTHY AND METICULOUSLY DETAILED FINDINGS
OF FACT.  SOME ARE NOT CHALLENGED BY ANY OF THE PARTIES.  OTHERS ARE
CHALLENGED.  THE FOLLOWING, WE CONCLUDE, ARE ADEQUATELY SUPPORTED BY
THE RECORD: 

1.  IN 1959, AFTER THE BANK WAS RETAINED AS TRANSFER AGENT, UDC'S
ATTORNEY WROTE THE BANK ADVISING IT THAT UDC'S DIRECTORS, BY FORMAL
MINUTE, HAD INSTRUCTED HIM TO ASK THE BANK "TO DISCOURAGE THE SALE OF
STOCK OF THE UTE DISTRIBUTION CORPORATION BY ANY OF ITS STOCKHOLDERS
AND TO EMPHASIZE AND STRESS TO THE SAID STOCKHOLDERS THE IMPORTANCE OF
RETAINING SAID STOCK."  THE LETTER FURTHER STATED, "(WE TRUST YOU WILL
IMPRESS UPON ANYONE DESIRING TO MAKE A TRANSFER THAT THERE IS NO
POSSIBLE WAY OF DETERMINING THE TRUE VALUE OF THIS STOCK." 

2.  THE BANK MAINTAINED A BRANCH OFFICE IN ROOSEVELT, UTAH.  MANY
MIXED-BLOODS RESIDED IN THAT AREA.  THIS WAS, "AMONG OTHER THINGS FOR
THE PURPOSE OF FACILITATING AND ASSISTING MIXED-BLOODS IN THE TRANSFER"
OF THE UDC STOCK.  DEFENDANTS GALE AND HASLEM WERE THE BANK'S
ASSISTANT MANAGERS AT ROOSEVELT.  THEY WERE ALSO NOTARIES PUBLIC. 

3.  WITH RESPECT TO MOST OF THE SALES OF UDC STOCK BY THE 12
PLAINTIFFS TO NONMEMBERS OF THE TRIBE, EITHER GALE OR HASLEM PREPARED
AND NOTARIZED THE NECESSARY TRANSFER PAPERS, INCLUDING SIGNATURE
GUARANTEES AND THE AFFIDAVITS OF THE SELLERS TO THE EFFECT THAT THEY
WERE RECEIVING NOT LESS THAN THE PRICE AT WHICH THE SHARES HAD BEEN
OFFERED TO MEMBERS OF THE TRIBE.  THE PROCEDURE WITH RESPECT TO THE
PREPARATION AND EXECUTION OF THESE AFFIDAVITS WAS INFORMAL AT BEST.  IN
AT LEAST ONE CASE THE AFFIDAVIT WAS SIGNED IN BLANK; IN ANOTHER GALE
DISSUADED THE SELLER FROM READING THE AFFIDAVIT BEFORE SHE SIGNED IT. 

4.  SOME OF THE AFFIDAVITS DO NOT ACCURATELY DESCRIBE THE SALES TO
WHICH THEY RELATE.  ALTHOUGH THEY STATE THAT THE SALES WERE FOR CASH,
SOME SELLERS ACTUALLY RECEIVED SECOND-HAND AUTOMOBILES OR OTHER
TANGIBLE PROPERTY.  THE SUPERINTENDENT RELIED ON THE RECITALS IN THE
AFFIDAVITS IN PREPARING HIS AUTHENTICATING CERTIFICATES THAT WERE
TRANSMITTED TO THE BANK AS TRANSFER AGENT. 

5.  DURING 1963 AND 1964 MIXED-BLOODS SOLD 1,387 SHARES OF UDC
STOCK.  ALL WERE SOLD TO NONMEMBERS OF THE TRIBE.  HASLEM PURCHASED 50
OF THESE HIMSELF (ALL AFTER AUGUST 27, 1964), AND GALE PURCHASED 63 (44
BEFORE THAT DATE AND 19 AFTER).  THE 113 SHARES HASLEM AND GALE
PURCHASED CONSTITUTED 8 1/3% OF THE TOTAL SOLD BY MIXED-BLOODS DURING
THOSE TWO YEARS.  THE 12 PLAINTIFFS SOLD 120 SHARES; OF THESE GALE
PURCHASED 10 AND HASLEM PURCHASED SIX.  /14/  THEY PAID CASH FOR THE
SHARES THEY PURCHASED.  THIRTY-TWO OTHER WHITE MEN BOUGHT SHARES FROM
MIXED-BLOODS DURING THE PERIOD. 

6.  IN 1964 AND 1965 UDC STOCK WAS SOLD BY MIXED-BLOODS AT PRICES
RANGING FROM $300 TO $700 PER SHARE.  SHARES WERE BEING TRANSFERRED
BETWEEN WHITES, HOWEVER, AT PRICES FROM $500 TO $700 PER SHARE. 

7.  GALE AND HASLEM POSSESSED STANDING ORDERS FROM NON-INDIAN BUYERS. 
ABOUT SEVEN OF THESE WERE FROM OUTSIDE THE STATE.  SOME OF THE
PROSPECTIVE PURCHASERS MAINTAINED DEPOSITS AT THE BANK FOR THE PURPOSE
OF READY CONSUMMATION OF ANY TRANSACTION. 

8.  THE TWO MEN RECEIVED VARIOUS COMMISSIONS AND GRATUITIES FOR THEIR
SERVICES IN FACILITATING THE TRANSFER OF UDC STOCK FROM MIXED-BLOODS TO
NON-INDIANS.  GALE SUPPLIED SOME FUNDS AS SALES ADVANCES TO THE MIXED
BLOOD SELLERS.  HE AND HASLEM SOLICITED CONTRACTS FOR OPEN PURCHASES OF
UDC STOCK AND DID SO ON BANK PREMISES AND DURING BUSINESS HOURS. 

9.  IN CONNECTION WITH ALL THIS, THE BANK SOUGHT INDIVIDUAL ACCOUNTS
FROM THE TRIBAL MEMBERS. 

10.  THE UNITED STATES MAILS AND OTHER INSTRUMENTALITIES OF
INTERSTATE COMMERCE WERE EMPLOYED BY THE BANK AND BY GALE AND HASLEM IN
CONNECTION WITH THE TRANSFER OF THE UDC SHARES. 

THE DISTRICT COURT CONCLUDED: 

1.  AS TO THE UNITED STATES:  THE GOVERNMENT HAD REASON TO KNOW THAT
THE MIXED-BLOODS WERE SELLING UDC SHARES TO NON-INDIANS UNDER
CIRCUMSTANCES OF A DOUBTFUL NATURE.  IT OWED A DUTY TO THE MIXED-BLOODS
TO DISCOURAGE AND PREVENT THOSE SALES.  ITS FAILURE TO PERFORM THAT
DUTY WAS THE PROXIMATE CAUSE OF THE SALES. 

2.  AS TO GALE AND HASLEM:  THE TWO MEN HAD DEVISED A PLAN OR SCHEME
TO ACQUIRE, FOR THEMSELVES AND OTHERS, SHARES IN UDC FROM MIXED
BLOODS.  IN VIOLATION OF THEIR DUTY TO MAKE A FAIR DISCLOSURE, THEY
SUCCEEDED IN ACQUIRING SHARES FROM MIXED-BLOODS FOR LESS THAN FAIR
VALUE. 

3.  AS TO THE BANK:  IT WAS PUT UPON NOTICE OF THE IMPROPER
ACTIVITIES OF ITS EMPLOYEES, GALE AND HASLEM, KNOWINGLY CREATED THE
APPARENT AUTHORITY ON THEIR PART, AND WAS RESPONSIBLE FOR THEIR
CONDUCT.  ITS LIABILITY WAS JOINT AND SEVERAL WITH THAT OF GALE AND
HASLEM. 

THE DISTRICT COURT THEN RULED THAT EACH OF THE DEFENDANTS, THAT IS,
THE UNITED STATES, THE BANK, GALE, AND HASLEM, WAS LIABLE TO EACH OF
THE 12 PLAINTIFFS (32 TRANSACTIONS INVOLVING 122 SHARES), EXCEPT THAT
THE GOVERNMENT WAS NOT LIABLE WITH RESPECT TO ANY SALE AFTER AUGUST 27,
1964, OR WITH RESPECT TO SALES MADE BY PLAINTIFFS WORKMAN AND ORAN F.
CURRY BECAUSE OF THEIR KNOWLEDGE AND CONTRIBUTORY NEGLIGENCE.  USING A
$1,500-PER-SHARE VALUE FOR UDC STOCK, AS OF THE TIMES OF THE SALES, THE
ABOVE-DESCRIBED JUDGMENTS FOR $129,519.56 AND $77,947.35 WERE COMPUTED
AND ENTERED. 

THE COURT OF APPEALS REVERSED IN SUBSTANTIAL PART.  IT HELD: 

1.  AS TO THE UNITED STATES:  THERE WAS NO DUTY ON THE PART OF THE
GOVERNMENT TO THE PETITIONERS, IN CONNECTION WITH THEIR SALES OF UDC
STOCK, THAT CONTINUED AFTER THE 1961 TERMINATION.  NO FORM OF WARDSHIP
OR OF FEDERAL TRUST RELATIONSHIP EXISTED WITH RESPECT TO THE SHARES
AFTER THAT DATE.  THUS, DAMAGES UNDER THE TORT CLAIMS ACT WERE NOT TO
BE AWARDED.  431 F.2D, AT 1340-1343. 

2. AS TO GALE AND HASLEM:  THEY WERE LIABLE ONLY IN THOSE INSTANCES
WHERE THE EMPLOYEE PERSONALLY PURCHASED SHARES FOR HIS OWN ACCOUNT OR
FOR RESALE TO AN UNDISCLOSED PRINCIPAL AT A HIGHER PRICE.  WITH RESPECT
TO THE OTHER TRANSACTIONS, THE TWO EMPLOYEES PERFORMED ESSENTIALLY
MINISTERIAL FUNCTIONS RELATED TO SHARE TRANSFERS AND THEIR CONDUCT WAS
NOT SUFFICIENT TO INCUR LIABILITY.  THE COURT REMANDED THE CASE ON THE
ISSUE OF DAMAGES, 431 F.2D, AT 1345-1349. 

3.  AS TO THE BANK:  THERE WAS NO VIOLATION OF ANY DUTY IT MAY HAVE
HAD TO PLAINTIFFS BY ITS CONTRACT WITH UDC.  THIS WAS SO DESPITE THE
FACTS THAT GALE AND HASLEM WERE ACTIVE IN ENCOURAGING A MARKET FOR THE
UDC STOCK AND THAT THE BANK MAY HAVE HAD SOME INDIRECT BENEFIT BY WAY
OF INCREASED DEPOSITS.  431 F.2D, AT 1346-1347. 

IN SUMMARY, THEN, THE COURT OF APPEALS DECIDED THE REYOS CASE IN
FAVOR OF THE UNITED STATES AND, IN LARGE PART, IN FAVOR OF THE BANK;
HELD GALE AND HASLEM PERSONALLY LIABLE, AND THE BANK ALSO, ONLY WITH
RESPECT TO A FEW SALES; AND, AS TO THOSE SALES, REMANDED THE CASE ON
THE ISSUE OF DAMAGES. 

WE CONSIDER, IN TURN, THE POSTURE OF THE SEVERAL DEFENDANTS. 

A. THE UNITED STATES.  THE PROCLAMATION OF AUGUST 26, 1961, WAS
CONTEMPLATED BY SEC. 23 OF THE ACT, 25 U.S.C. 677V.  TO THE EXTENT THE
NATURE OF THE PROPERTY SO PERMITTED, THIS MARKED THE FULFILLMENT OF THE
PURPOSE SET FORTH IN SEC. 1 OF THE ACT, 25 U.S.C. 677, NAMELY, THE
TERMINATION OF FEDERAL SUPERVISION OVER THE TRUST AND RESTRICTED
PROPERTY OF THE MIXED-BLOODS.  IT STATED SPECIFICALLY THAT THE MIXED
BLOOD THEREUPON "SHALL NOT BE ENTITLED TO ANY OF THE SERVICES PERFORMED
FOR INDIANS BECAUSE OF HIS STATUS AS AN INDIAN."  THIS BROAD REFERENCE
OBVIOUSLY INCLUDED THE SHARES OF UDC ALTHOUGH THE UNDIVIDED INTERESTS
IN TURN HELD BY UDC AND SHARES WITH THE FULL-BLOODS REMAINED SUBJECT TO
RESTRICTIONS AFTER THE PROCLAMATION.  SEC. 16(A), 25 U.S.C. 677OA). 
THE UDC STOCK ITSELF, HOWEVER, WAS FREE OF RESTRICTION; AS TO IT,
FEDERAL TERMINATION WAS COMPLETE.  EACH MIXED-BLOOD COULD SELL HIS
SHARES AS HE WISHED AND TO WHOM HE PLEASED, SUBJECT THEREAFTER ONLY TO
THE RESTRICTIONS IMPOSED BY UDC'S OWN ARTICLES.  THERE WAS NO REMAINING
GOVERNMENTAL AUTHORITY OVER THOSE SHARES.  AND WITHOUT SUCH AUTHORITY
THERE CAN BE NO LIABILITY ON THE PART OF THE UNITED STATES FOR FAILURE
TO RESTRAIN A SALE.     THE PETITIONERS' ARGUMENT THAT THE RIGHT OF
FIRST REFUSAL CREATED A DUTY ON THE PART OF THE GOVERNMENT DOES NOT
PERSUADE US.  THIS FIRST-REFUSAL RIGHT WITH RESPECT TO UDC STOCK IS
PROVIDED FOR IN THE CORPORATION'S ARTICLES AND THUS WAS CREATED BY UDC
ITSELF.  THE CORPORATION'S ACTION IN THIS RESPECT IMPOSED NO DUTY ON
THE UNITED STATES.  TO BE SURE, THE FIRST-REFUSAL RIGHT WAS UNDOUBTEDLY
PATTERNED AFTER THE FIRST REFUSAL PROVIDED FOR A PERIOD WITH RESPECT TO
REAL ESTATE IN SEC. 15 OF THE ACT, 25 U.S.C. 677N, AND THE SECRETARY'S
REGULATIONS WERE MADE APPLICABLE TO THE FIRST-REFUSAL RIGHT IN STOCK
"AS FAR AS PRACTICABLE."  25 CFR 243.12 (1962).  BUT THIS PARALLEL
CREATED NO OBLIGATION. 

B. GALE AND HASLEM.  SECTION 10 OF THE SECURITIES EXCHANGE ACT OF
1934, 15 U.S.C. 78J, MAKES IT UNLAWFUL "FOR ANY PERSON, DIRECTLY OR
INDIRECTLY," TO "EMPLOY, IN CONNECTION WITH THE PURCHASE OR SALE OF ANY
SECURITY . . . ANY MANIPULATIVE OR DECEPTIVE DEVICE OR CONTRIVANCE IN
CONTRAVENTION" OF ANY RULE THE COMMISSION MAY PRESCRIBE AS NECESSARY OR
APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF
INVESTORS."  ONE SUCH RULE SO PRESCRIBED IS RULE 10B-5.  THIS DECLARES
THAT, IN CONNECTION WITH THE PURCHASE OR SALE OF ANY SECURITY, IT SHALL
BE "UNLAWFUL FOR ANY PERSON, DIRECTLY OR INDIRECTLY," (1) "TO EMPLOY
ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD," (2) "TO MAKE ANY UNTRUE
STATEMENT OF A MATERIAL FACT" OR TO OMIT TO STATE A MATERIAL FACT SO
THAT THE STATEMENTS MADE "IN THE LIGHT OF THE CIRCUMSTANCES," ARE
MISLEADING, AND (3) "TO ENGAGE IN ANY ACT, PRACTICE, OR COURSE OF
BUSINESS WHICH OPERATES OR WOULD OPERATE AS A FRAUD OR DECEIT UPON ANY
PERSON." 

THESE PROSCRIPTIONS, BY STATUTE AND RULE, ARE BROAD AND, BY REPEATED
USE OF THE WORD "ANY," ARE OBVIOUSLY MEANT TO BE INCLUSIVE.  THE COURT
HAS SAID THAT THE 1934 ACT AND ITS COMPANION LEGISLATIVE ENACTMENTS
/15/  EMBRACE A "FUNDAMENTAL PURPOSE . . . TO SUBSTITUTE A PHILOSOPHY
OF FULL DISCLOSURE FOR THE PHILOSOPHY OF CAVEAT EMPTOR AND THUS TO
ACHIEVE A HIGH STANDARD OF BUSINESS ETHICS IN THE SECURITIES
INDUSTRY."  SEC V. CAPITAL GAINS RESEARCH BUREAU, 375 U.S. 180, 186
(1963).  IN THE CASE JUST CITED THE COURT NOTED THAT CONGRESS INTENDED
SECURITIES LEGISLATION ENACTED FOR THE PURPOSE OF AVOIDING FRAUDS TO BE
CONSTRUED "NOT TECHNICALLY AND RESTRICTIVELY, BUT FLEXIBLY TO
EFFECTUATE ITS REMEDIAL PURPOSES."  ID., AT 195.  THIS WAS RECENTLY
SAID ONCE AGAIN IN SUPERINTENDENT OF INSURANCE V. BANKERS LIFE &
CASUALTY CO., 404 U.S. 6, 12 (1971). 

IN THE LIGHT OF THE CONGRESSIONAL PHILOSOPHY AND PURPOSE, SO CLEARLY
EMPHASIZED BY THE COURT, WE CONCLUDE THAT THE COURT OF APPEALS VIEWED
TOO NARROWLY THE ACTIVITIES OF DEFENDANTS GALE AND HASLEM.  WE WOULD
AGREE THAT IF THE TWO MEN AND THE EMPLOYER BANK HAD FUNCTIONED MERELY
AS A TRANSFER AGENT, THERE WOULD HAVE BEEN NO DUTY OF DISCLOSURE HERE. 
BUT, AS THE COURT OF APPEALS ITSELF OBSERVED, THE RECORD SHOWS THAT
GALE AND HASLEM "WERE ACTIVE IN ENCOURAGING A MARKET FOR THE UDC STOCK
AMONG NON-INDIANS."  431 F.2D,AT 1345.  THEY DID THIS BY SOLICITING AND
ACCEPTING STANDING ORDERS FROM NON-INDIANS.  THEY AND THE BANK, AS A
RESULT, RECEIVED INCREASED DEPOSITS BECAUSE OF THE DEVELOPMENT OF THIS
MARKET.  THE TWO MEN ALSO RECEIVED COMMISSIONS AND GRATUITIES FROM THE
EXPECTANT NON-INDIAN BUYERS.  THE MEN, AND HENCE THE BANK, AS THE COURT
FOUND, WERE "ENTIRELY FAMILIAR WITH THE PREVAILING MARKET FOR THE
SHARES AT ALL MATERIAL TIMES."  431 F.2D, AT 1347.  THE BANK ITSELF HAD
ACKNOWLEDGED, BY LETTER TO AUC IN JANUARY 1958, THAT "IT WOULD BE OUR
DUTY TO SEE THAT THESE TRANSFERS WERE PROPERLY MADE" AND THAT, WITH
RESPECT TO THE SALE OF SHARES, "THE BANK WOULD BE ACTING FOR THE
INDIVIDUAL STOCKHOLDERS."  THE MIXED-BLOOD SELLERS "CONSIDERED THESE
DEFENDANTS TO BE FAMILIAR WITH THE MARKET FOR THE SHARES OF STOCK AND
RELIED UPON THEM WHEN THEY DESIRED TO SELL THEIR SHARES."  431 F.2D, AT
1347. 

CLEARLY, THE COURT OF APPEALS WAS RIGHT TO THE EXTENT THAT IT HELD
THAT THE TWO EMPLOYEES HAD VIOLATED RULE 10B-5; IN THE INSTANCES
SPECIFIED IN THAT HOLDING THE RECORD REVEALS A MISSTATEMENT OF A
MATERIAL FACT, WITHIN THE PROSCRIPTION OF RULE 10B-5(2), NAMELY, THAT
THE PREVAILING MARKET PRICE OF THE UDC SHARES WAS THE FIGURE AT WHICH
THEIR PURCHASES WERE MADE. 

WE CONCLUDE, HOWEVER, THAT THE COURT OF APPEALS ERRED WHEN IT HELD
THAT THERE WAS NO VIOLATION OF THE RULE UNLESS THE RECORD DISCLOSED
EVIDENCE OF RELIANCE ON MATERIAL FACT MISREPRESENTATIONS BY GALE AND
HASLEM.  431 F.2D, AT 1348.  WE DO NOT READ RULE 10B-5 SO
RESTRICTIVELY.  TO BE SURE, THE SECOND SUBPARAGRAPH OF THE RULE
SPECIFIES THE MAKING OF AN UNTRUE STATEMENT OF A MATERIAL FACT AND THE
OMISSION TO STATE A MATERIAL FACT.  THE FIRST AND THIRD SUBPARAGRAPHS
ARE NOT SO RESTRICTED.  THESE DEFENDANTS' ACTIVITIES, OUTLINED ABOVE,
DISCLOSE, WITHIN THE VERY LANGUAGE OF ONE OR THE OTHER OF THOSE
SUBPARAGRAPHS, A "COURSE OF BUSINESS" OR A "DEVICE, SCHEME, OR
ARTIFICE" THAT OPERATED AS A FRAUD UPON THE INDIAN SELLERS. 
SUPERINTENDENT OF INSURANCE V. BANKERS LIFE AND CASUALTY CO., SUPRA.
THIS IS SO BECAUSE THE DEFENDANTS DEVISED A PLAN AND INDUCED THE MIXED
BLOOD HOLDERS OF UDC STOCK TO DISPOSE OF THEIR SHARES WITHOUT
DISCLOSING TO THEM MATERIAL FACTS THAT REASONABLY COULD HAVE BEEN
EXPECTED TO INFLUENCE THEIR DECISIONS TO SELL.  THE INDIVIDUAL
DEFENDANTS, IN A DISTINCT SENSE, WERE MARKET MAKERS, NOT ONLY FOR THEIR
PERSONAL PURCHASES CONSTITUTING 8 1/3% OF THE SALES, BUT FOR THE OTHER
SALES THEIR ACTIVITIES PRODUCED.  THIS BEING SO, THEY POSSESSED THE
AFFIRMATIVE DUTY UNDER THE RULE TO DISCLOSE THIS FACT TO THE MIXED
BLOOD SELLERS.  SEE CHASINS V. SMITH, BARNEY & CO., 438 F.2D 1167 (CA2
1970).  IT IS NO ANSWER TO URGE THAT, AS TO SOME OF THE PETITIONERS,
THESE DEFENDANTS MAY HAVE MADE NO POSITIVE REPRESENTATION OR
RECOMMENDATION.  THE DEFENDANTS MAY NOT STAND MUTE WHILE THEY
FACILITATE THE MIXED-BLOODS' SALES TO THOSE SEEKING TO PROFIT IN THE
NON-INDIAN MARKET THE DEFENDANTS HAD DEVELOPED AND ENCOURAGED AND WITH
WHICH THEY WERE FULLY FAMILIAR.  THE SELLERS HAD THE RIGHT TO KNOW THAT
THE DEFENDANTS WERE IN A POSITION TO GAIN FINANCIALLY FROM THEIR SALES
AND THAT THEIR SHARES WERE SELLING FOR A HIGHER PRICE IN THAT MARKET. 
CF., IN CONTRAST, SEC. 18(A) OF THE ACT, 15 U.S.C. 78RA), AND 11(A) OF
THE SECURITIES ACT OF 1933, 15 U.S.C. 77KA). 

UNDER THE CIRCUMSTANCES OF THIS CASE, INVOLVING PRIMARILY A FAILURE
TO DISCLOSE, POSITIVE PROOF OF RELIANCE IS NOT A PREREQUISITE TO
RECOVERY.  ALL THAT IS NECESSARY IS THAT THE FACTS WITHHELD BE MATERIAL
IN THE SENSE THAT A REASONABLE INVESTOR MIGHT HAVE CONSIDERED THEM
IMPORTANT IN THE MAKING OF THIS DECISION.  SEE MILLS V. ELECTRIC AUTO
LITE CO., 396 U.S. 375, 384 (1970); SEC V. TEXAS GULF SULPHUR CO., 401
F.2D 833, 849 (CA2 1968), CERT. DENIED SUB NOM. COATES V. SEC, 394 U.S.
976 (1969); 6 L. LOSS, SECURITIES REGULATION 3876-3880 (1969 SUPP. TO
2D ED. OF VOL. 3); A. BROMBERG, SECURITIES LAW, FRAUD-- SEC RULE 10B-5,
SECS. 2.6 AND 8.6 (1967).  THIS OBLIGATION TO DISCLOSE AND THIS
WITHHOLDING OF A MATERIAL FACT ESTABLISH THE REQUISITE ELEMENT OF
CAUSATION IN FACT.  CHASINS V. SMITH, BARNEY & CO., 438 F.2D, AT 1172. 

GALE AND HASLEM ENGAGED IN MORE THAN MINISTERIAL FUNCTIONS.  THEIR
ACTS WERE CLEARLY WITHIN THE REACH OF RULE 10B-5.  AND THEY WERE ACTS
PERFORMED WHEN THEY WERE OBLIGATED TO ACT ON BEHALF OF THE MIXED-BLOOD
SELLERS.  /16/ 

C. THE BANK.  THE LIABILITY OF THE BANK, OF COURSE, IS COEXTENSIVE
WITH THAT OF GALE AND HASLEM. 

        V

    DAMAGES 

A. THE DISTRICT COURT DETERMINED THAT THE MEASURE OF DAMAGES FOR
EACH SELLER WAS THE DIFFERENCE BETWEEN THE FAIR VALUE OF THE UDC SHARES
AT THE TIME OF HIS SALE AND THE FAIR VALUE OF WHAT THE SELLER RECEIVED,
INCLUDING ANY AMOUNT PAID TO HIM IN SETTLEMENT BY THE AUTOMOBILE
DEALERS.  THE COURT OF APPEALS HELD THAT THE MEASURE WAS "THE PROFIT
MADE BY THE DEFENDANT ON RESALE" OR, IF NO RESALE WAS MADE OR IF THE
RESALE WAS NOT AT ARM'S LENGTH, WAS "THE PREVAILING MARKET PRICE AT THE
TIME OF THE PURCHASE FROM THE PLAINTIFFS."  431 F.2D, AT 1348-1349. 

IN OUR VIEW, THE CORRECT MEASURE OF DAMAGES UNDER SEC. 28 OF THE
ACT, 15 U.S.C. 78BBA), IS THE DIFFERENCE BETWEEN THE FAIR VALUE OF ALL
THAT THE MIXED-BLOOD SELLER RECEIVED AND THE FAIR VALUE OF WHAT HE
WOULD HAVE RECEIVED HAD THERE BEEN NO FRAUDULENT CONDUCT, SEE MYZEL V.
FIELDS, 386 F.2D 718, 748 (CA8 1967), CERT. DENIED, 390 U.S. 951
(1968), EXCEPT FOR THE SITUATION WHERE THE DEFENDANT RECEIVED MORE THAN
THE SELLER'S ACTUAL LOSS.  IN THE LATTER CASE DAMAGES ARE THE AMOUNT OF
THE DEFENDANT'S PROFIT.  SEE JANIGAN V. TAYLOR, 344 F.2D 781, 786 (CA1
1965), CERT. DENIED, 382 U.S. 879 (1965). 

B. THE DISTRICT COURT, AS HAS BEEN NOTED, ARRIVED AT A VALUE FOR THE
UDC STOCK OF $1,500 PER SHARE.  THE COURT OF APPEALS CONCLUDED THAT
THIS VALUATION WAS NOT SUBSTANTIATED BY THE RECORD.  THE PETITIONERS
ARGUE FOR A VALUE IN THE NEIGHBORHOOD OF $28,000 PER SHARE, A FIGURE
CONCEDEDLY DEPENDENT IN LARGE PART ON AN ESTIMATE OF THE ULTIMATE WORTH
OF OIL SHALE. 

WE AGREE WITH BOTH THE DISTRICT COURT AND THE COURT OF APPEALS THAT
THE $28,000 FIGURE IS UNREALISTIC AND SPECULATIVE.  ON THE OTHER HAND,
REASONABLE INFERENCES MAY BE DRAWN AND THE DISTRICT COURT, AS THE TRIER
OF FACT ON THIS RECORD, IS NOT RESTRICTED TO ACTUAL SALE PRICES IN A
MARKET SO ISOLATED AND SO THIN AS THIS ONE.  SEE GENERALLY BIGELOW V.
RKO RADIO PICTURES, INC., 327 U.S. 251, 264 (1946); HARRY ALTER CO. V.
CHRYSLER CORP., 285 F.2D 903, 907 (CA7 1960); O'MALLEY V. AMES, 197
F.2D 256 (CA8 1952). 

IN ARRIVING AT THE $1,500 FIGURE THE DISTRICT COURT CONSIDERED THE
EXISTENCE OF EXTENSIVE OIL SHALE DEPOSITS ON THE RESERVATION; THE
POSSESSION BY THOSE DEPOSITS OF SUBSTANTIAL PRESENT VALUE AND OF GREAT
POTENTIAL VALUE; THE PRESENCE OF GAS, COAL, AND OTHER MINERALS; THE
ADMINISTRATIVE COST DEPOSIT RETAINED BY THE UNITED STATES WITH RESPECT
TO EACH MEMBER OF THE TRIBE; EACH PETITIONER'S REMAINING INTEREST IN
THE 1965 AWARD BY THE INDIAN CLAIMS COMMISSION; THE EXISTENCE OF CLAIMS
AGAINST THE UNITED STATES NOT YET FULLY ADJUDICATED; AND THE SPECIFIC
PRICES AT WHICH UDC SHARES WERE SOLD BY MIXED-BLOODS AND BETWEEN WHITE
PERSONS.  THE COURT NOTED THAT PRICES PAID FOR THE SHARES WERE SOMEWHAT
INFLUENCED BY THE IMPROPER ACTIVITIES OF GALE AND HASLEM; BY THE EXCESS
OF SELLERS OVER BUYERS; BY THE FACT THE TYPICAL INDIAN SELLER WAS NOT
SO WELL INFORMED ABOUT THE POTENTIAL VALUE OF THE STOCK AS WAS THE
TYPICAL NON-INDIAN BUYER; BY THE FACT THAT THE INDIAN SELLER WAS UNDER
HEAVY ECONOMIC PRESSURE TO SELL; BY OPINION EVIDENCE AS TO WORTH IN
EXCESS OF $700 PER SHARE; AND BY THE FACT THAT SOME PORTION OF THE
DEPRESSANT FACTORS IN THE MARKET WAS ATTRIBUTABLE TO THE DEFENDANTS. 
ON THE OTHER HAND, THE COURT NOTED THAT NOT ALL THE MARKET'S DEPRESSANT
FACTORS WERE SO ATTRIBUTABLE TO THE DEFENDANTS AND THAT THE TRIBE
ITSELF, DESPITE THE OPPORTUNITY SO TO DO, HAD DECLINED TO PURCHASE UDC
SHARES AT PRICES RANGING FROM $350 TO $700. 

THE COURT THEN EXPRESSED THE BELIEF THAT THE PROBLEM WAS NOT TO
DETERMINE THE ULTIMATE WORTH OF THE UNDIVIDED MINERAL INTEREST
UNDERLYING THE SHARES OR TO GOVERNED SOLELY BY THE SALE PRICES.  IT
CONCLUDED THAT ON THE PREPONDERANCE OF THE EVIDENCE THE STOCK WAS WORTH
$1,500 PER SHARE AT THE TIMES OF THE PETITIONERS' RESPECTIVE SALES. 

IN THE LIGHT OF ALL THIS, AND ON BALANCE, WE FIND OURSELVES IN
AGREEMENT WITH THE DISTRICT COURT, AND IN DISAGREEMENT WITH THE COURT
OF APPEALS, AND WE CONCLUDE THAT THE DISTRICT COURT'S $1,500 VALUATION
HAS SUFFICIENT SUPPORT IN THE RECORD. 

THE JUDGMENT OF THE COURT OF APPEALS IN THE AUC CASE IS AFFIRMED. 
THE JUDGMENT OF THE COURT OF APPEALS IN THE REYOS CASE IS AFFIRMED
INSOFAR AS IT CONCERNS THE UNITED STATES; INSOFAR AS IT CONCERNS THE
BANK AND THE INDIVIDUAL DEFENDANTS, THAT JUDGMENT IS AFFIRMED IN PART
AND IS REVERSED IN PART, AS HEREINABOVE SET FORTH, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS.  COSTS ARE ALLOWED THE INDIVIDUAL
PETITIONERS AS AGAINST THE BANK AND THE INDIVIDUAL DEFENDANTS. 

              IT IS SO ORDERED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  THE ACT WAS ONE OF A SERIES OF TERMINATION STATUTES ENACTED
PRIMARILY IN THE YEARS 1954-1956.  SEE, FOR EXAMPLE, THE MENOMINEE
INDIAN TERMINATION ACT OF JUNE 17, 1954, 68 STAT. 250, 25 U.S.C. 891 ET
SEQ.; THE KLAMATH INDIAN TERMINATION OF SUPERVISION ACT OF AUG. 13,
1954, 68 STAT. 718, 25 U.S.C. 564 ET SEQ.; THE ACT OF AUG. 13, 1954, 68
STAT. 724, 25 U.S.C. 691 ET SEQ. (WESTERN OREGON); THE ACT OF AUG. 23,
1954, 68 STAT. 768, 25 U.S.C. 721 ET SEQ. (ALABAMA AND COUSHATTA); THE
ACT OF SEPT. 1, 1954, 68 STAT. 1099, 25 U.S.C. 741 ET SEQ. (PAIUTE);
THE ACT OF AUG. 1, 1956, 70 STAT. 893, 25 U.S.C. 791 ET SEQ.
(WYANDOTTE); THE ACT OF AUG. 2, 1956, 70 STAT. 937, 25 U.S.C. 821 ET
SEQ. (PEORIA); AND THE ACT OF AUG. 3, 1956, 70 STAT. 963, 25 U.S.C. 841
ET SEQ. (OTTAWA).  OTHERS WERE THE ACT OF SEPT. 21, 1959, 73 STAT. 592,
25 U.S.C. 931 ET SEQ. (CATAWBA), AND THE ACT OF SEPT. 5, 1962, 76 STAT.
429, 25 U.S.C. 971 ET SEQ. (PONCA). 

THE TERMINATION POLICY EXEMPLIFIED BY THESE ACTS IS NOT WITHOUT ITS
CRITICISM.  SEE THE PRESIDENT'S SPECIAL MESSAGE TO THE CONGRESS ON
INDIAN AFFAIRS, JULY 8, 1970, PUBLIC PAPERS OF THE PRESIDENTS, RICHARD
NIXON, 1970, PP. 564-576. 

/2/  S. REP. NO. 1632, 83D CONG., 2D SESS., 5 (1954); H.R. REP. NO.
2493, 83D CONG., 2D SESS., 2 (1954).     /3/  COUNSEL FOR THE
PETITIONERS ADVISED US AT ORAL ARGUMENT THAT THE TERM "MIXED-BLOOD" IS
A SLUR AND IS OFFENSIVE AND THAT THE PREFERRED DESCRIPTION IS
"TERMINATED UTES."  TR. OF ORAL ARG. 4.  SECTION 2 OF THE ACT, HOWEVER,
DEFINES AS A "FULL-BLOOD" A MEMBER OF THE TRIBE "WHO POSSESSES ONE-HALF
DEGREE OF UTE INDIAN BLOOD AND A TOTAL OF INDIAN BLOOD IN EXCESS OF ONE
HALF, EXCEPTING THOSE WHO BECOME MIXED-BLOODS BY CHOICE . . . "  IT
DEFINES AS A "MIXED-BLOOD" A MEMBER OF THE TRIBE WHO DOES NOT FALL
WITHIN THE FULL-BLOOD CLASS, AND ONE WHO BECOMES A MIXED-BLOOD BY
CHOICE.  25 U.S.C. 677AB) AND (C).  THE PROVISION AS TO CHOICE IS SEC.
4 OF THE ACT, 25 U.S.C. 677C.  INASMUCH AS THE STATUTE SPECIFICALLY
EMPLOYS THE TERMS "FULL-BLOOD" AND "MIXED-BLOOD," WE FEEL COMPELLED,
FOR PURPOSES OF CONSISTENCY AND CLARITY, TO DO THE SAME.  NO SLUR OR
OFFENSE WHATSOEVER IS INTENDED. 

/4/  S. REP. NO. 1632, 83D CONG., 2D SESS., 6 (1954); H. R. REP. NO.
2493, 83D CONG., 2D SESS., 4 (1954).  THE CASH WAS ATTRIBUTABLE
PRIMARILY TO THE TRIBE'S 60% SHARE OF THE SETTLEMENT JUDGMENT OF
$31,000,000 OBTAINED IN CONFEDERATED BANDS OF UTE INDIANS V. UNITED
STATES, 117 CT.CL. 433 (1950).  SEE THE ACT OF AUG. 21, 1951, SEC. 2,
65 STAT. 194, 25 U.S.C. 672.  THE REMAINING 40% WAS AWARDED TO THE
SOUTHERN UTE TRIBE. 

/5/  THE FINAL MEMBERSHIP ROLLS WERE PUBLISHED APRIL 5, 1956.  21
FED.REG.  2208-2220 (1956).  THE ROLLS LISTED 490 MIXED-BLOODS AND
1,314 FULL-BLOODS, A TOTAL OF 1,804.  THE RATIO WAS 27.16186% MIXED
BLOODS AND 72.83814% FULL-BLOODS. 

/6/  A LIKE RIGHT OF FIRST REFUSAL WITH RESPECT TO A MIXED-BLOOD'S
DISPOSAL OF HIS INTEREST IN REAL ESTATE WITHIN 10 YEARS IS SPECIFIED IN
SEC. 15 OF THE ACT, 25 U.S.C. 677N. 

/7/  "TRANSFER OF THIS CERTIFICATE AT ANY TIME PRIOR TO AUGUST 27,
1964, TO A PERSON NOT A MEMBER OF THE UTE INDIAN TRIBE OF THE UINTAH
AND OURAY RESERVATION, UTAH, AS DEFINED IN PUBLIC LAW 671-- 83RD
CONGRESS, APPROVED AUGUST 27, 1954, 68 STAT. 868, SHALL BE INVALID
UNLESS THE CERTIFICATE OF THE SUPERINTENDENT OF THE UINTAH AND OURAY
RESERVATION IS ENDORSED THEREON SHOWING THAT A PRIOR AND PROPER OFFER
HAS BEEN MADE TO MEMBERS OF SAID TRIBE IN ACCORDANCE WITH LAW AND THE
REGULATIONS OF THE SECRETARY OF THE INTERIOR." 

/8/

        "WARNING 

"THIS CERTIFICATE DOES NOT REPRESENT STOCK IN AN ORDINARY BUSINESS
CORPORATION.  THIS CORPORATION IS ORGANIZED FOR THE PURPOSE OF
DISTRIBUTING TO THE STOCKHOLDERS IN THE FUTURE THEIR RESPECTIVE SHARES
IN THE PROCEEDS OR INCOME FROM ALL CLAIMS AND ASSETS IN WHICH THE MIXED
BLOOD MEMBERS OF THE UTAH INDIAN TRIBE OF THE UINTAH AND OURAY
RESERVATION, UTAH HAVE OR WILL HAVE AN INTEREST UNDER THE PROVISIONS OF
PUBLIC LAW 671-- 83RD CONGRESS, APPROVED AUGUST 27, 1954, 68 STAT. 868,
AS AMENDED.  THE FUTURE VALUE OF, OR RETURN ON, THIS STOCK CANNOT BE
DETERMINED.  THIS STOCK CERTIFICATE SHOULD NEITHER BE SOLD NOR
ENCUMBERED BY THE OWNER THEREOF, BUT SHOULD BE RETAINED AND PRESERVED
FOR THE BENEFIT OF THE STOCKHOLDER AND THE STOCKHOLDER'S FAMILY." 

/9/  THIS FIGURE APPEARS TO HAVE BEEN MISSTATED AS 27.1686% IN THE
COMPLAINT.  THE ERROR WAS CARRIED FORWARD INTO THE RESPECTIVE OPINIONS
OF THE DISTRICT COURT AND OF THE COURT OF APPEALS.  431 F.2D 1349,
1350. 

/10/  THE DEALERS SETTLED AND THE ACTIONS AGAINST THEM HAVE BEEN
DISMISSED. 

/11/  TITLE 25 U.S.C. 345 READS: 

"ALL PERSONS WHO ARE IN WHOLE OR IN PART OF INDIAN BLOOD OR DESCENT
WHO ARE ENTITLED TO AN ALLOTMENT OF LAND . . . OR WHO CLAIM TO HAVE
BEEN UNLAWFULLY DENIED OR EXCLUDED FROM ANY ALLOTMENT . . . MAY
COMMENCE AND PROSECUTE . . . ANY ACTION . . . IN RELATION TO THEIR
RIGHT THERETO IN THE PROPER DISTRICT COURT OF THE UNITED STATES; AND
SAID DISTRICT COURTS ARE GIVEN JURISDICTION TO TRY AND DETERMINE ANY
ACTION . . . INVOLVING THE RIGHT OF ANY PERSON, IN WHOLE OR IN PART OF
INDIAN BLOOD OR DESCENT, TO ANY ALLOTMENT OF LAND UNDER ANY LAW OR
TREATY (AND IN SAID SUIT THE PARTIES THERETO SHALL BE THE CLAIMANT AS
PLAINTIFF AND THE UNITED STATES AS PARTY DEFENDANT) . . . " 

/12/  "SEC.  10.  IT SHALL BE UNLAWFUL FOR ANY PERSON, DIRECTLY OR
INDIRECTLY, BY THE USE OF ANY MEANS OR INSTRUMENTALITY OF INTERSTATE
COMMERCE OR OF THE MAILS, OR OF ANY FACILITY OF ANY NATIONAL SECURITIES
EXCHANGE--

       .          .          .          . 

"(B) TO USE OR EMPLOY, IN CONNECTION WITH THE PURCHASE OR SALE OF
ANY SECURITY REGISTERED ON A NATIONAL SECURITIES EXCHANGE OR ANY
SECURITY NOT SO REGISTERED, ANY MANIPULATIVE OR DECEPTIVE DEVICE OR
CONTRIVANCE IN CONTRAVENTION OF SUCH RULES AND REGULATIONS AS THE
COMMISSION MAY PRESCRIBE AS NECESSARY OR APPROPRIATE IN THE PUBLIC
INTEREST OR FOR THE PROTECTION OF INVESTORS." 

/13/  RULE 10B-5, 17 CFR 240.10B-5: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, DIRECTLY OR INDIRECTLY, BY THE
USE OF ANY MEANS OR INSTRUMENTALITY OF INTERSTATE COMMERCE, OR OF THE
MAILS OR OF ANY FACILITY OF ANY NATIONAL SECURITIES EXCHANGE, 

"(A) TO EMPLOY ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD, 

"(B) TO MAKE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR TO OMIT TO
STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE,
IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING, OR 

"(C) TO ENGAGE IN ANY ACT, PRACTICE, OR COURSE OF BUSINESS WHICH
OPERATES OR WOULD OPERATE AS A FRAUD OR DECEIT UPON ANY PERSON, IN
CONNECTION WITH THE PURCHASE OR SALE OF ANY SECURITY." 

/14/  ON OR ABOUT JULY 8, 1964, GALE BOUGHT FIVE SHARES FROM GLEN
REED AT $350 PER SHARE.  HE SOLD THEM IN AUGUST FOR $530 PER SHARE. 
AFTER AUGUST 27, 19Q4, IN THREE SEPARATE TRANSACTIONS, HE PURCHASED
FIVE SHARES FROM LETHA HARRIS WOPSOCK.  HE SOLD THREE OF THESE AT A
HIGHER PRICE; THE RECORD IS SILENT AS TO WHETHER HE SOLD THE OTHER TWO
AT A PRICE IN EXCESS OF HIS COST.  ON OR ABOUT AUGUST 31, 1964, HASLEM
BOUGHT FIVE SHARES FROM REED AT $400 AND RESOLD THEM IMMEDIATELY.  IN
NOVEMBER 1964 HE PURCHASED ONE SHARE FROM JOSEPH ARTHUR WORKMAN FOR
$350.  HE TRANSFERRED THE WORKMAN SHARE TO HIS BROTHER.  THE RECORD
DOES NOT INDICATE HASLEM'S TRANSFER PRICES. 

/15/  THE SECURITIES ACT OF 1933, 48 STAT. 74, AS AMENDED, 15 U.S.C.
77A ET SEQ.; THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49 STAT.
838, AS AMENDED, 15 U.S.C. 79 ET SEQ.; THE TRUST INDENTURE ACT OF 1939,
53 STAT. 1149, AS AMENDED, 15 U.S.C. 77AAA ET SEQ.; AND THE INVESTMENT
COMPANY ACT OF 1940, 54 STAT. 789, AS AMENDED, 15 U.S.C. 80A-1 ET SEQ. 

/16/  LIABILITY HERE, OF COURSE, IS NOT PREDICATED ON ANY BROKER OR
DEALER CONCEPT UNDER SEC. 15(C)(1) OF THE ACT, 15 U.S.C. 78OC)(1).  A
BANK IS EXCLUDED FROM THE RESPECTIVE DEFINITIONS OF THOSE TERMS IN
SECS. 3(A)(4) AND (5), 15 U.S.C. 78CA)(4) AND (5). 

MR. JUSTICE DOUGLAS, CONCURRING IN PART AND DISSENTING IN PART. 

I JOIN IN THE COURT'S OPINION AND JUDGMENT AS TO THE INDIVIDUAL AND
CORPORATE RESPONDENTS.  I WOULD GO FURTHER, HOWEVER, AND ALSO HOLD THAT
THE UNITED STATES HAS WAIVED ITS SOVEREIGN IMMUNITY TO PETITIONERS'
CLAIMS. 

PETITIONERS ARE AN UNINCORPORATED ASSOCIATION OF MIXED-BLOOD UTES
AND INDIVIDUALS OF THAT GROUP.  THEY SOUGHT DAMAGES, IN THE DISTRICT
COURT, FOR FRAUDULENT SECURITIES TRANSACTIONS, FOR NEGLIGENCE BY AGENTS
OF THE FEDERAL GOVERNMENT, AND FOR THE DEPRIVATION OF STATUTORY RIGHTS
GRANTED THEM BY CONGRESS.  THE DISTRICT COURT AWARDED DAMAGES ON THE
FIRST TWO CLAIMS, BUT DISMISSED THE THIRD FOR WANT OF JURISDICTION AND
FOR FAILURE TO STATE A CLAIM.  THE COURT OF APPEALS REVERSED THE TWO
DAMAGE AWARDS AND AFFIRMED THE DISMISSAL OF THE THIRD ACTION.  431 F.2D
1337, 1349 (CA10 1970). 

IN THE UTE INDIAN SUPERVISION TERMINATION ACT OF 1954, CONGRESS
SOUGHT 

"TO PROVIDE FOR THE PARTITION AND DISTRIBUTION OF THE ASSETS OF THE
UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION IN UTAH BETWEEN
THE MIXED-BLOOD AND FULL-BLOOD MEMBERS THEREOF; FOR THE TERMINATION OF
FEDERAL SUPERVISION OVER THE TRUST, AND RESTRICTED PROPERTY, OF THE
MIXED-BLOOD MEMBERS OF SAID TRIBE; AND FOR A DEVELOPMENT PROGRAM FOR
THE FULL-BLOOD MEMBERS THEREOF, TO ASSIST THEM IN PREPARING FOR
TERMINATION OF FEDERAL SUPERVISION OVER THEIR PROPERTY."  25 U.S.C.
677. 

THAT THE VARIOUS PROPERTY INTERESTS IN THE RESERVATION WERE TO BE
TREATED DIFFERENTLY IS EVIDENCED BY THE COMMITTEE REPORTS ACCOMPANYING
THIS LEGISLATION: 

     "AN ESSENTIAL PROVISION OF THE PROPOSED LEGISLATION IS THE

  DIVISION BETWEEN THE TWO GROUPS, ON THE BASIS OF THEIR RELATIVE

  NUMBERS, OF ALL TRIBAL ASSETS, EXCEPT OIL, GAS, AND MINERAL

  RIGHTS, AND UNADJUDICATED CLAIMS AGAINST THE UNITED STATES. 

  THESE UNDIVIDED ASSETS WILL CONTINUE TO BE OWNED AND ADMINISTERED

  JOINTLY BY THE TWO GROUPS.  THE RESPONSIBILITY FOR MAKING THIS

  DIVISION IS ON THE INDIANS THEMSELVES, BUT IF THEY FAIL TO AGREE

  WITHIN 12 MONTHS AFTER THE ROLLS ARE COMPLETED, THE SECRETARY OF

  THE INTERIOR IS AUTHORIZED TO MAKE THE DIVISION."  S. REP. NO.

  1632, 83D CONG., 2D SESS., 6 (1954). 

ACCORD, H.R. REP. NO. 2493, 83D CONG., 2D SESS. (1954). 

INVOLVED HERE IS THE MINERAL ESTATE IN THE RESERVATION LANDS. 
BECAUSE THESE "AS, OIL, AND MINERAL RIGHTS" WERE "NOT SUSCEPTIBLE OF
EQUITABLE AND PRACTICABLE DISTRIBUTION" AMONG THE INDIVIDUAL INDIANS,
THEY WERE TO BE "MANAGED JOINTLY BY THE TRIBAL BUSINESS COMMITTEE (OF
THE FULL-BLOOD UTES) AND THE AUTHORIZED REPRESENTATIVES OF THE MIXED
BLOOD GROUP."  25 U.S.C. 677I.  THE BENEFITS WERE TO BE SHARED
PROPORTIONATELY ACCORDING TO THE RELATIVE NUMBERS OF EACH GROUP ON
THEIR FINAL MEMBERSHIP ROLLS.  IBID. 

CONGRESS SET FORTH AN EXPLICIT PROCEDURE FOR THE SELECTION OF THE
"AUTHORIZED REPRESENTATIVES" OF THE MIXED-BLOOD UTES WHO, WITH THE
TRIBAL BUSINESS COMMITTEE, WERE TO HAVE MANAGERIAL POWERS OVER THE
MINERAL ESTATE IN THE RESERVATION.  CENTRAL TO THIS SELECTION WAS THE
REQUIREMENT FOR "A MAJORITY VOTE OF THE ADULT MIXED-BLOOD MEMBERS OF
THE TRIBE AT A SPECIAL ELECTION AUTHORIZED AND CALLED BY THE SECRETARY"
OF THE INTERIOR.  25 U.S.C. 677E.  THE PETITIONER AFFILIATED UTE
CITIZENS WAS CREATED UNDER THIS PROCEDURE ON APRIL 4, 1956.  TWO YEARS
LATER, THE UTE DISTRIBUTION CORP. WAS FORMED AND THERE LIES THE ROOT OF
THE PRESENT LITIGATION. 

THE UTE DISTRIBUTION CORP. WAS NOT CHARTERED ACCORDING TO THE
GUIDELINES MANDATED BY CONGRESS.  RATHER THAN FOLLOWING THE REQUIREMENT
FOR A MAJORITY VOTE OF THE MIXED-BLOOD MEMBERS, IT WAS CREATED BY THE
FIVE BOARD MEMBERS OF AFFILIATED UTE.  APPROVAL OF ITS ARTICLES OF
INCORPORATION WAS BY A VOTE OF ONLY 42 TO 5-- FAR SHORT OF THE MAJORITY
OF THE 490 MIXED-BLOOD UTES REQUIRED BY 25 U.S.C. 677E.  AFTER
INCORPORATION, 10 SHARES OF STOCK WERE ISSUED TO EACH OF THE MIXED
BLOOD UTES.  DESPITE THE FLAWS IN UTE DISTRIBUTION CORP.'S FORMATION,
THE BUREAU OF INDIAN AFFAIRS TREATED IT, AND NOT AFFILIATED UTE
CITIZENS, AS THE "AUTHORIZED REPRESENTATIVE."  PAYMENTS FOR MINERAL
RIGHTS WERE THUS MADE TO UTE DISTRIBUTION WHICH, IN TURN, PASSED THEM
ON TO ITS SHAREHOLDERS AS DIVIDENDS. 

BECAUSE THE BUREAU OF INDIAN AFFAIRS VIEWED THE TRANSFER OF MINERAL
INTERESTS TO UTE DISTRIBUTION AS ONE TO THE AUTHORIZED REPRESENTATIVE,
CF. 25 U.S.C. 677OA), THE RESTRICTIONS ON THE TRANSFER OF INDIVIDUAL
PROPERTY WERE REMOVED AND THE FEDERAL TRUST RELATIONSHIP PURPORTEDLY
WAS TERMINATED.  25 U.S.C. 677V; 26 FED.REG.  8042.  IT WAS UPON THIS
BASIS THAT THE COURTS BELOW HELD THAT THE INDIVIDUAL MIXED-BLOOD UTES
AND THE AFFILIATED UTES NO LONGER HAD COGNIZABLE INTERESTS IN THE
MINERAL ESTATE OF THE RESERVATION. 

EVEN IF THE FEDERAL TRUST RELATIONSHIP WAS TERMINATED AS TO
INDIVIDUAL PROPERTY INTERESTS, IT DOES NOT FOLLOW THAT THE TRUST
RELATIONSHIP WAS ALSO TERMINATED AS TO THE GROUP INTEREST IN THE
MINERAL RIGHTS.  THE UNITED STATES CONTINUED TO OWE SIGNIFICANT
OBLIGATIONS AND DUTIES WITH REGARD TO THESE MINERAL INTERESTS.  SEE 25
U.S.C. 677I, 677N, AND 677O.  SEE BERGER, INDIAN MINERAL INTEREST-- A
POTENTIAL FOR ECONOMIC ADVANCEMENT, 10 ARIZ.L.REV.  675 (1968).  IT WAS
TO OBTAIN THE ENJOYMENT OF THE STATUTORY BENEFITS AND TO REDRESS THEIR
INJURY THAT PETITIONERS BROUGHT THIS ACTION AGAINST THE UNITED STATES. 

THE WAIVER OF SOVEREIGN IMMUNITY FOR CLAIMS RELATING TO LAND
ALLOTMENTS FIRST APPEARED IN AN AMENDMENT TO THE INDIAN APPROPRIATIONS
ACT OF 1894, 28 STAT. 305, AS AMENDED, 25 U.S.C. 345: 

"ALL PERSONS WHO ARE IN WHOLE OR IN PART OF INDIAN BLOOD OR

  DESCENT WHO ARE ENTITLED TO AN ALLOTMENT OF LAND UNDER ANY LAW OF

  CONGRESS . . . OR WHO CLAIM TO HAVE BEEN UNLAWFULLY DENIED OR

  EXCLUDED FROM ANY ALLOTMENT OR ANY PARCEL OF LAND TO WHICH THEY

  CLAIM TO BE LAWFULLY ENTITLED BY VIRTUE OF ANY ACT OF CONGRESS,

  MAY COMMENCE AND PROSECUTE OR DEFEND ANY ACTION, SUIT, OR

  PROCEEDING IN RELATION TO THEIR RIGHT THERETO IN THE PROPER

  DISTRICT COURT OF THE UNITED STATES . . . " 

BY A FURTHER AMENDMENT IN 1901, CONGRESS MADE EXPLICIT WHAT HAD
PREVIOUSLY BEEN ONLY IMPLICIT: THAT IT INTENDED TO ALLOW ALLOTMENT
CLAIMANTS TO BRING ACTIONS AGAINST "THE UNITED STATES AS PARTY
DEFENDANT."  ACT OF FEB. 6, 1901, SEC. 1, 31 STAT. 760.  SEE H.R. REP.
NO. 1714, 56TH CONG., 1ST SESS. (1900); S. REP. NO. 2040, 56TH CONG.,
2D SESS. (1901). 

AFFILIATED UTE CITIZENS ARGUED THAT THEIR ASSERTED RIGHT TO A
PORTION OF THE MINERAL ESTATE OF THE RESERVATION WAS AN "ALLOTMENT OR .
. . PARCEL OF LAND" WHICH THEY HAD BEEN UNLAWFULLY DENIED AND THAT THEY
WERE THEREFORE ABLE TO BRING THIS ACTION AGAINST THE UNITED STATES
UNDER SEC. 345.  SEE, E.G., UNITED STATES V. PIERCE, 235 F.2D 885 (CA9
1956); GERARD V. UNITED STATES, 167 F.2D 951 (CA9 1948).  THE COURTS
BELOW REJECTED THIS VIEW, WITH THE COURT OF APPEALS SAYING: 

"THIS SECTION OF THE STATUTE IS OBVIOUSLY INTENDED TO PROVIDE RELIEF
TO THE INDIANS ENTITLED TO POSSESSION OF ALLOTMENTS AND SIMILAR
INTERESTS.  THE CASES AND STATUTORY LAW HAVE ASCRIBED TO THE WORD
'ALLOTMENT' A WELL RECOGNIZED MEANING.  THE NATURE OF THE INTEREST
SOUGHT TO BE PROTECTED AND SECURED DOES NOT RESEMBLE THAT DESCRIBED IN
THE STATUTE."  431 F.2D, AT 1350.     WE OWE TO THE INDIANS A
BENEFICENT INTERPRETATION OF REMEDIAL LEGISLATION DESIGNED TO RIGHT
PAST WRONGS.  UNITED STATES V. KAGAMA, 118 U.S. 375, 384-385.  THE
COURT OF APPEALS, HOWEVER, GAVE ONLY A LIMITED INTERPRETATION TO THIS
WAIVER OF SOVEREIGN IMMUNITY AGAINST INDIANS' CLAIMS.  THE SOLICITOR
GENERAL LIKEWISE ARGUES FOR A LIMITED APPLICATION OF THIS WAIVER AND
WOULD APPLY IT ONLY TO CLAIMS CONCERNING "A TRACT OF LAND SET ASIDE OUT
OF A COMMON HOLDING AND AWARDED TO AN INDIVIDUAL ALLOTTEE."  /1/ 

     "BUT IN THE GOVERNMENT'S DEALINGS WITH THE INDIANS THE RULE IS

  EXACTLY THE CONTRARY.  THE CONSTRUCTION, INSTEAD OF BEING STRICT,

  IS LIBERAL; DOUBTFUL EXPRESSIONS, INSTEAD OF BEING RESOLVED IN

  FAVOR OF THE UNITED STATES, ARE TO BE RESOLVED IN FAVOR OF A WEAK

  AND DEFENSELESS PEOPLE, WHO ARE WARDS OF THE NATION, AND

  DEPENDENT WHOLLY UPON ITS PROTECTION AND GOOD FAITH.  THIS RULE

  OF CONSTRUCTION HAS BEEN RECOGNIZED, WITHOUT EXCEPTION, FOR MORE

THAN A HUNDRED YEARS . . . "  CHOATE V. TRAPP, 224 U.S. 665,

  675. 

SEE ALSO ALASKA PACIFIC FISHERIES V. UNITED STATES, 248 U.S. 78, 79;
U.S. DEPT. OF THE INTERIOR, FEDERAL INDIAN LAW 565-566 (1958). 

THE WAIVER OF SOVEREIGN IMMUNITY SHOULD NOT BE SO LIMITED AS THE
SOLICITOR GENERAL AND THE COURTS BELOW SUGGEST.  THE 1894 ACT, NOW
CODIFIED IN 25 U.S.C. 345, WAS PLAINLY INTENDED TO GIVE INDIANS A MEANS
OF ENFORCING THEIR RIGHTS TO GOVERNMENTAL GRANTS OF INTERESTS IN
REALTY.  /2/  TO BE SURE, THE SECTION WAS ENACTED IN AN ERA DURING
WHICH THESE GRANTS USUALLY TOOK THE FORM OF INDIVIDUAL POSSESSORY
INTERESTS IN REALTY, GILBERT & TAYLOR, INDIAN LAND QUESTIONS, 8
ARIZ.L.REV.  102, 112 (1966); BUT THAT SHOULD NOT PREVENT THIS REMEDIAL
OTHER FORMS OF PROPERTY.  /3/ 

NOR DOES THE PLAIN LANGUAGE OF SEC. 345 SUGGEST A CONTRARY RESULT. 
IT SPEAKS OF AN "ALLOTMENT OR ANY PARCEL OF LAND."  /4/  CERTAINLY THE
MODERN, CONVENTIONAL WAY OF ALLOTTING MINERAL RIGHTS IS THROUGH
FRACTIONAL INTERESTS CREATED BY CONTRACTS OR THROUGH STOCK INTERESTS IN
CORPORATIONS TO WHICH THOSE ALLOTMENTS ARE TRANSFERRED.  IF CONGRESS
HAS WAIVED SOVEREIGN IMMUNITY FOR CLAIMS RELATING TO FEE INTERESTS IN
REALTY, IT SURELY COULD NOT HAVE INTENDED THAT FORMAL REQUIREMENTS OF
THE ART OF CONVEYANCY DESTROY THAT WAIVER OF IMMUNITY FOR LESSER
INTERESTS IN REALTY.  PARTICULARLY IS THAT SO WHERE, AS HERE, THE
LESSER INTEREST SEEMS TO HAVE BEEN GRANTED THROUGH AN ERROR BY THE
BUREAU OF INDIAN AFFAIRS. 

THE LIMITED RETENTION OF SOVEREIGN IMMUNITY IN THE UTE TERMINATION
ACT FURTHER SUPPORTS PETITIONERS' CLAIMS.  TITLE 25 U.S.C. 677I
PROVIDES THAT THE "PARTITION (OF TRIBAL ASSETS) SHALL GIVE RISE TO NO
CAUSE OF ACTION AGAINST THE UNITED STATES."  THE COMMITTEE REPORTS AND
THE STATUTE ITSELF INDICATE THAT THE MINERAL INTERESTS WERE NOT TO BE
THE SUBJECT OF PARTITION AS THE WORD IS USED IN THAT ACT.  S. REP. NO.
1632, 83D CONG., 2D SESS., 6 (1954); H.R. REP. NO. 2493, 83D CONG., 2D
SESS. (1954); 25 U.S.C. 677I.  THUS, THE FAILURE OF CONGRESS TO EXTEND
SOVEREIGN IMMUNITY TO THE UNPARTITIONED MINERAL INTERESTS HERE IN ISSUE
STRONGLY SUGGESTS THAT IMMUNITY HAS BEEN WAIVED AS TO THESE CLAIMS. 
MOREOVER, THE ONLY OTHER IMMUNITY PROVISION OF THE ACT, 25 U.S.C. 677H,
APPLIES ONLY WHERE THERE HAS BEEN CONSENT BY THE AUTHORIZED
REPRESENTATIVES OF THE MIXED-BLOOD GROUP WHICH WAS NECESSARILY ABSENT
BECAUSE OF THE DEFECT IN THE CREATION OF THE UTE DISTRIBUTION CORP. 

/1/  A SIMILAR ARGUMENT WAS MADE IN UNITED STATES V. PIERCE, 235
F.2D 885, 888 (CA9 1956): 

"THE UNITED STATES CONTENDS THAT THE JURISDICTIONAL PREREQUISITE FOR
ANY ACTION UNDER (SEC. 345) . . . IS THE EXISTENCE OF A SPECIFIC
ALLOTMENT SELECTION WHICH HAS BEEN UNLAWFULLY DENIED BY THE SECRETARY
OF THE INTERIOR . . . "  THE COURT REJECTED THIS ARGUMENT SAYING THAT
IT WAS "BASED UPON AN UNREASONABLE LIMITATION AS TO THE PURPOSE OF THE
STATUTE," IBID., AND WENT ON TO SUSTAIN THE INDIANS' CLAIMS TO INCOME
FROM THE LAND. 

/2/  FIRST MOON V. WHITE TAIL, 270 U.S. 243, RELIED UPON BY THE
SOLICITOR GENERAL, IS NOT TO THE CONTRARY BECAUSE IT DEALT WITH THE
TRANSFER OF PROPERTY OCCASIONED BY AN INDIAN'S DEATH.  SUCH TRANSFERS
WERE REMOVED FROM THE SCOPE OF SEC. 345 AND "ENTRUSTED TO THE EXCLUSIVE
COGNIZANCE OF THE SECRETARY OF THE INTERIOR BY THE ACT OF JUNE 25,
1910, C. 431, 36 STAT. 855 . . . " 270 U.S.,AT 244. 

/3/  IN SCHOLDER V. UNITED STATES, 428 F.2D 1123, 1129 (CA9 1970),
FOR EXAMPLE, THE COURT NOTED "THAT SECTION (345) IS NOT LIMITED TO
ACTIONS SEEKING TO COMPEL THE ISSUANCE OF AN ALLOTMENT IN THE FIRST
INSTANCE.  IT SERVES ALSO TO PROTECT 'THE INTERESTS AND RIGHTS OF THE
INDIAN IN HIS ALLOTMENT OR PATENT AFTER HE HAS ACQUIRED IT.'"  THE
COURT THEN HELD THAT CHALLENGES TO LIENS PLACED UPON INDIAN LANDS FELL
WITHIN THE JURISDICTIONAL SCOPE OF SEC. 345.  CERTAINLY THE DIVESTITURE
OF INTERESTS IN LANDS, ALLEGED HERE, SHOULD NOT BE ENTITLED TO A LESSER
DEGREE OF PROTECTION THAN THE IMPOSITION OF A LIEN. 

/4/  SECTION 345 ALSO REQUIRES THAT THE PROPERTY INTEREST BE ONE
DERIVED "UNDER ANY LAW OF CONGRESS" OR "BY VIRTUE OF ANY ACT OF
CONGRESS."  E.G., NAGANAB V. HITCHCOCK, 202 U.S. 473; OREGON V.
HITCHCOCK, 202 U.S. 60.  IN THE PRESENT CASE, THE RIGHTS ASSERTED ARE
THOSE DERIVED FROM THE UTE INDIAN SUPERVISION TERMINATION ACT OF 1954. 

PARKER M. NIELSON ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONERS. 

A. RAYMOND RANDOLPH, JR., ARGUED THE CAUSE FOR THE UNITED STATES PRO
HAC VICE.  WITH HIM ON THE BRIEF FOR THE UNITED STATES AND BRIEF FOR
THE SECURITIES AND EXCHANGE COMMISSION AS AMICUS CURIAE FOR PETITIONER
REYOS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
KASHIWA, EDMUND B. CLARK, G. BRADFORD COOK, WALTER P. NORTH, THEODORE
SONDE, AND RICHARD S. SELTZER.  MARVIN J. BERTOCH ARGUED THE CAUSE FOR
RESPONDENTS FIRST SECURITY BANK OF UTAH, N.A., ET AL., AND FILED A
BRIEF FOR FIRST SECURITY BANK OF UTAH.  RICHARD CLARE CAHOON FILED A
BRIEF FOR RESPONDENT GALE.  HARDIN A. WHITNEY FILED A BRIEF FOR
RESPONDENT HASLEM. 

BRIEFS OF AMICI CURIAE WERE FILED BY JOHN S. BOYDEN, STEPHEN G.
BOYDEN, AND GEORGE C. MORRIS FOR THE UTE INDIAN TRIBE OF THE UINTAH AND
OURAY RESERVATIONS ET AL.; BY ARTHUR LAZARUS, JR., AND MILTON EISENBERG
FOR THE ASSOCIATION ON AMERICAN INDIAN AFFAIRS, INC.; AND BY DAVID H.
GETCHES AND WALLACE L. DUNCAN FOR THE NATIVE AMERICAN RIGHTS FUND. 
..END :



WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164 


       WEBER V. AETNA CASUALTY & SURETY CO. ET AL.

   CERTIORARI TO THE SUPREME COURT OF LOUISIANA

NO. 70-5112.  ARGUED FEBRUARY 28, 1972-- DECIDED APRIL 24,

          1972 


DECEDENT, WHO DIED AS A RESULT OF INJURIES RECEIVED DURING THE COURSE
OF HIS EMPLOYMENT, HAD MAINTAINED A HOUSEHOLD WITH FOUR LEGITIMATE
MINOR CHILDREN, ONE UNACKNOWLEDGED MINOR CHILD, AND PETITIONER, TO WHOM
HE WAS NOT MARRIED.  HIS WIFE HAD BEEN COMMITTED TO A MENTAL HOSPITAL. 
A SECOND ILLEGITIMATE CHILD WAS BORN POSTHUMOUSLY.  UNDER LOUISIANA'S
WORKMEN'S COMPENSATION LAW UNACKNOWLEDGED ILLEGITIMATE CHILDREN ARE NOT
WITHIN THE CLASS OF "CHILDREN," BUT ARE RELEGATED TO THE LESSER STATUS
OF "OTHER DEPENDENTS," AND MAY RECOVER ONLY IF THERE ARE NOT ENOUGH
SURVIVING DEPENDENTS IN THE PRECEDING CLASSES TO EXHAUST THE MAXIMUM
BENEFITS.  THE FOUR LEGITIMATE CHILDREN WERE AWARDED THE MAXIMUM
ALLOWABLE COMPENSATION AND THE TWO ILLEGITIMATE CHILDREN RECEIVED
NOTHING.  THE LOUISIANA COURTS SUSTAINED THE STATUTORY SCHEME, HOLDING
THAT LEVY V. LOUISIANA, 391 U.S. 68, WAS NOT CONTROLLING.  HELD:
LOUISIANA'S DENIAL OF EQUAL RECOVERY RIGHTS TO THE DEPENDENT
UNACKNOWLEDGED ILLEGITIMATE CHILDREN VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, AS THE INFERIOR CLASSIFICATION OF
THESE DEPENDENT CHILDREN BEARS NO SIGNIFICANT RELATIONSHIP TO THE
RECOGNIZED PURPOSES OF RECOVERY THAT WORKMEN'S COMPENSATION STATUTES
WERE DESIGNED TO SERVE.  LEVY V. LOUISIANA, SUPRA, FOLLOWED: LABINE V.
VINCENT, 401 U.S. 532, DISTINGUISHED.  PP. 167-176. 

257 LA. 424, 242 SO.2D 567, REVERSED AND REMANDED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, BRENNAN, STEWART, WHITE, AND MARSHALL, JJ., JOINED. 
BLACKMUN, J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 176. 
REHNQUIST, J., FILED A DISSENTING OPINION, POST, P. 177. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US, ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA, /1/  CONCERNS THE RIGHT OF DEPENDENT UNACKNOWLEDGED,
ILLEGITIMATE CHILDREN TO RECOVER UNDER LOUISIANA WORKMEN'S COMPENSATION
LAWS BENEFITS FOR THE DEATH OF THEIR NATURAL FATHER ON AN EQUAL FOOTING
WITH HIS DEPENDENT LEGITIMATE CHILDREN.  WE HOLD THAT LOUISIANA'S
DENIAL OF EQUAL RECOVERY RIGHTS TO DEPENDENT UNACKNOWLEDGED
ILLEGITIMATES VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  LEVY V. LOUISIANA, 391 U.S. 68 (1968); GLONA V. AMERICAN
GUARANTEE & LIABILITY INSURANCE CO., 391 U.S. 73 (1968). 

ON JUNE 22, 1967, HENRY CLYDE STOKES DIES IN LOUISIANA OF INJURIES
RECEIVED DURING THE COURSE OF HIS EMPLOYMENT THE PREVIOUS DAY.  AT THE
TIME OF HIS DEATH STOKES RESIDED AND MAINTAINED A HOUSEHOLD WITH ONE
WILLIE MAE WEBER, TO WHOM HE WAS NOT MARRIED.  LIVING IN THE HOUSEHOLD
WERE FOUR LEGITIMATE MINOR CHILDREN, BORN OF THE MARRIAGE BETWEEN
STOKES AND ADLAY JONES STOKES WHO WAS AT THE TIME COMMITTED TO A MENTAL
HOSPITAL.  ALSO LIVING IN THE HOME WAS ONE UNACKNOWLEDGED ILLEGITIMATE
CHILD BORN OF THE RELATIONSHIP BETWEEN STOKES AND WILLIE MAE WEBER.  A
SECOND ILLEGITIMATE CHILD OF STOKES AND WEBER WAS BORN POSTHUMOUSLY. 

ON JUNE 29, 1967, STOKES' FOUR LEGITIMATE CHILDREN, THROUGH THEIR
MATERNAL GRANDMOTHER AS GUARDIAN, FILED A CLAIM FOR THEIR FATHER'S
DEATH UNDER LOUISIANA'S WORKMEN'S COMPENSATION LAW.  /2/  THE DEFENDANT
EMPLOYER AND ITS INSURER IMPLEADED WILLIE MAE WEBER WHO APPEARED AND
CLAIMED COMPENSATION BENEFITS FOR THE TWO ILLEGITIMATE CHILDREN. 

MEANWHILE, THE FOUR LEGITIMATE CHILDREN HAD BROUGHT ANOTHER SUIT FOR
THEIR FATHER'S DEATH AGAINST A THIRD-PARTY TORTFEASOR, WHICH WAS
SETTLED FOR AN AMOUNT IN EXCESS OF THE MAXIMUM BENEFITS ALLOWABLE UNDER
WORKMEN'S COMPENSATION.  THE ILLEGITIMATE CHILDREN DID NOT SHARE IN
THIS SETTLEMENT.  SUBSEQUENTLY, THE EMPLOYER IN THE INITIAL ACTION
REQUESTED THE THE EXTINGUISHMENT OF ALL PARTIES' WORKMEN'S COMPENSATION
CLAIMS BY REASON OF THE TORT SETTLEMENT. 

THE TRIAL JUDGE AWARDED THE FOUR LEGITIMATE CHILDREN THE MAXIMUM
ALLOWABLE AMOUNT OF COMPENSATION AND DECLARED THEIR ENTITLEMENT HAD
BEEN SATISFIED FROM THE TORT SUIT SETTLEMENT.  CONSEQUENTLY, THE FOUR
LEGITIMATE CHILDREN DISMISSED THEIR WORKMEN'S COMPENSATION CLAIM. 
JUDGMENT WAS ALSO AWARDED TO STOKES' TWO ILLEGITIMATE OFFSPRING TO THE
EXTENT THAT MAXIMUM COMPENSATION BENEFITS WERE NOT EXHAUSTED BY THE
FOUR LEGITIMATE CHILDREN.  SINCE SUCH BENEFITS HAD BEEN ENTIRELY
EXHAUSTED BY THE AMOUNT OF THE TORT SETTLEMENT, IN WHICH ONLY THE FOUR
DEPENDENT LEGITIMATE OFFSPRING PARTICIPATED, THE TWO DEPENDENT
ILLEGITIMATE CHILDREN RECEIVED NOTHING. 

        I 

FOR PURPOSES OF RECOVERY UNDER WORKMEN'S COMPENSATION, LOUISIANA LAW
DEFINES CHILDREN TO INCLUDE "ONLY LEGITIMATE CHILDREN, STEPCHILDREN,
POSTHUMOUS CHILDREN, ADOPTED CHILDREN, AND ILLEGITIMATE CHILDREN
ACKNOWLEDGED UNDER THE PROVISIONS OF CIVIL CODE ARTICLES 203, 204, AND
205."  /3/  THUS, LEGITIMATE CHILDREN AND ACKNOWLEDGED ILLEGITIMATES
MAY RECOVER ON AN EQUAL BASIS.  UNACKNOWLEDGED ILLEGITIMATE CHILDREN,
HOWEVER, ARE RELEGATED TO THE LESSER STATUS OF "OTHER DEPENDENTS" UNDER
SEC. 1232(8) OF THE WORKMEN'S COMPENSATION STATUTE /4/  AND MAY RECOVER
ONLY IF THERE ARE NOT ENOUGH SURVIVING DEPENDENTS IN THE PRECEDING
CLASSIFICATIONS TO EXHAUST THE MAXIMUM ALLOWABLE BENEFITS.  BOTH THE
LOUISIANA COURT OF APPEAL /5/  AND A DIVIDED LOUISIANA SUPREME COURT
/6/  SUSTAINED THESE STATUTES OVER PETITIONER'S CONSTITUTIONAL
OBJECTIONS, HOLDING THAT OUR DECISION IN LEVY, SUPRA, WAS NOT
CONTROLLING. 

WE DISAGREE.  IN LEVY, THE COURT HELD INVALID AS DENYING EQUAL
PROTECTION OF THE LAWS, A LOUISIANA STATUTE WHICH BARRED AN
ILLEGITIMATE CHILD FROM RECOVERING FOR THE WRONGFUL DEATH OF ITS MOTHER
WHEN SUCH RECOVERIES BY LEGITIMATE CHILDREN WERE AUTHORIZED.  THE COURT
THERE DECIDED THAT THE FACT OF A CHILD'S BIRTH OUT OF WEDLOCK BORE NO
REASONABLE RELATION TO THE PURPOSE OF WRONGFUL-DEATH STATUTES WHICH
COMPENSATE CHILDREN FOR THE DEATH OF A MOTHER.  AS THE COURT SAID IN
LEVY: 

    "LEGITIMACY OR ILLEGITIMACY OF BIRTH HAS NO RELATION TO THE

  NATURE OF THE WRONG ALLEGEDLY INFLICTED ON THE MOTHER.  THESE

  CHILDREN, THOUGH ILLEGITIMATE, WERE DEPENDENT ON HER; SHE CARED

  FOR THEM AND NURTURED THEM; THEY WERE INDEED HERS IN THE

  BIOLOGICAL AND IN THE SPIRITUAL SENSE; IN HER DEATH THEY SUFFERED

  WRONG IN THE SENSE THAT ANY DEPENDENT WOULD."  LEVY V. LOUISIANA,

  391 U.S.,AT 72. 

THE COURT BELOW SOUGHT TO DISTINGUISH LEVY AS INVOLVING A STATUTE
WHICH ABSOLUTELY EXCLUDED ALL ILLEGITIMATES FROM RECOVERY, WHEREAS IN
THE COMPENSATION STATUTE IN THE INSTANT CASE ACKNOWLEDGED ILLEGITIMATES
MAY RECOVER EQUALLY WITH LEGITIMATE CHILDREN AND "THE UNACKNOWLEDGED
ILLEGITIMATE CHILD IS NOT DENIED A RIGHT TO RECOVER COMPENSATION, HE
BEING MERELY RELEGATED TO A LESS FAVORABLE POSITION AS ARE OTHER
DEPENDENT RELATIVES SUCH AS PARENTS . . . "  STOKES V. AETNA CASUALTY &
SURETY CO., 257 LA. 424, 433-434, 242 SO.2D 567, 570 (1970).  THE
LOUISIANA SUPREME COURT LIKEWISE CHARACTERIZED LEVY AS A TORT ACTION
WHERE THE TORTFEASOR ESCAPED LIABILITY ON THE FORTUITY OF THE POTENTIAL
CLAIMANT'S ILLEGITIMACY, WHEREAS IN THE PRESENT ACTION FULL
COMPENSATION WAS RENDERED, AND "NO TORT FEASOR GOES FREE BECAUSE OF THE
LAW."  ID., AT 434, 242 SO.2D, AT 570. 

WE DO NOT THINK LEVY CAN BE DISPOSED OF BY SUCH FINELY CARVED
DISTINCTIONS.  THE COURT IN LEVY WAS NOT SO MUCH CONCERNED WITH THE
TORTFEASOR GOING FREE AS WITH THE EQUALITY OF TREATMENT UNDER THE
STATUTORY RECOVERY SCHEME.  HERE, AS IN LEVY, THERE IS IMPERMISSIBLE
DISCRIMINATION.  AN UNACKNOWLEDGED ILLEGITIMATE CHILD MAY SUFFER AS
MUCH FROM THE LOSS OF A PARENT AS A CHILD BORN WITHIN WEDLOCK OR AN
ILLEGITIMATE LATER ACKNOWLEDGED.  SO FAR AS THIS RECORD SHOWS, THE
DEPENDENCY AND NATURAL AFFINITY OF THE UNACKNOWLEDGED ILLEGITIMATE
CHILDREN FOR THEIR FATHER WERE AS GREAT AS THOSE OF THE FOUR LEGITIMATE
CHILDREN WHOM LOUISIANA LAW HAS ALLOWED TO RECOVER.  /7/  THE
LEGITIMATE CHILDREN AND THE ILLEGITIMATE CHILDREN ALL LIVED IN THE HOME
OF THE DECEASED AND WERE EQUALLY DEPENDENT UPON HIM FOR MAINTENANCE AND
SUPPORT.  IT IS INAPPROPRIATE, THEREFORE, FOR THE COURT BELOW TO TALK
OF RELEGATING THE UNACKNOWLEDGED ILLEGITIMATES "TO A LESS FAVORABLE
POSITION AS ARE OTHER DEPENDENT RELATIVES SUCH AS PARENTS."  THE
UNACKNOWLEDGED ILLEGITIMATES ARE NOT A PARENT OR SOME "OTHER DEPENDENT
RELATIVE"; IN THIS CASE THEY ARE DEPENDENT CHILDREN, AND AS SUCH ARE
ENTITLED TO RIGHTS GRANTED OTHER DEPENDENT CHILDREN. 

RESPONDENTS CONTEND THAT OUR RECENT RULING IN LABINE V. VINCENT, 401
U.S. 532 (1971), CONTROLS THIS CASE.  IN LABINE, THE COURT UPHELD,
AGAINST CONSTITUTIONAL OBJECTIONS, LOUISIANA INTESTACY LAWS WHICH HAD
BARRED AN ACKNOWLEDGED ILLEGITIMATE CHILD FROM SHARING EQUALLY WITH
LEGITIMATE CHILDREN IN HER FATHER'S ESTATE.  THAT DECISION REFLECTED,
IN MAJOR PART, THE TRADITIONAL DEFERENCE TO A STATE'S PREROGATIVE TO
REGULATE THE DISPOSITION AT DEATH OF PROPERTY WITHIN ITS BORDERS.  ID.,
AT 538.  THE COURT HAS LONG AFFORDED BROAD SCOPE TO STATE DISCRETION IN
THIS AREA.  /8/  YET THE SUBSTANTIAL STATE INTEREST IN PROVIDING FOR
"THE STABILITY OF . . . LAND TITLES AND IN THE PROMPT AND DEFINITIVE
DETERMINATION OF THE VALID OWNERSHIP OF PROPERTY LEFT BY DECEDENTS,"
LABINE V. VINCENT, 229 SO.2D 449, 452 (LA.APP.  1969), IS ABSENT IN THE
CASE AT HAND. 

MOREOVER, IN LABINE THE INTESTATE, UNLIKE DECEASED IN THE PRESENT
ACTION, MIGHT EASILY HAVE MODIFIED HIS DAUGHTER'S DISFAVORED POSITION. 
AS THE COURT THERE REMARKED: 

"EZRA VINCENT COULD HAVE LEFT ONE-THIRD OF HIS PROPERTY TO HIS
ILLEGITIMATE DAUGHTER HAD HE BOTHERED TO FOLLOW THE SIMPLE FORMALITIES
OF EXECUTING A WILL.  HE COULD, OF COURSE, HAVE LEGITIMATED THE CHILD
BY MARRYING HER MOTHER IN WHICH CASE THE CHILD COULD HAVE INHERITED HIS
PROPERTY EITHER BY INTESTATE SUCCESSION OR BY WILL AS ANY OTHER
LEGITIMATE CHILD."  LABINE, SUPRA, AT 539.  SUCH OPTIONS, HOWEVER, WERE
NOT REALISTICALLY OPEN TO HENRY STOKES.  UNDER LOUISIANA LAW HE COULD
NOT HAVE ACKNOWLEDGED HIS ILLEGITIMATE CHILDREN EVEN HAD HE DESIRED TO
DO SO.  /9/  THE BURDENS OF ILLEGITIMACY, ALREADY WEIGHTY, BECOME
DOUBLY SO WHEN NEITHER PARENT NOR CHILD CAN LEGALLY LIGHTEN THEM. 

BOTH THE STATUTE IN LEVY AND THE STATUTE IN THE PRESENT CASE INVOLVE
STATE-CREATED COMPENSATION SCHEMES, DESIGNED TO PROVIDE CLOSE RELATIVES
AND DEPENDENTS OF A DECEASED A MEANS OF RECOVERY FOR HIS OFTEN ABRUPT
AND ACCIDENTAL DEATH.  BOTH WRONGFUL-DEATH STATUTES AND WORKMEN'S
COMPENSATION CODES REPRESENT OUTGROWTHS AND MODIFICATIONS OF OUR BASIC
TORT LAW.  THE FORMER ALLEVIATED THE HARSH COMMON-LAW RULE UNDER WHICH
"NO PERSON COULD INHERIT THE PERSONAL RIGHT OF ANOTHER TO RECOVER FOR
TORTIOUS INJURIES TO HIS BODY"; /10/  THE LATTER REMOVED DIFFICULT
OBSTACLES TO RECOVERY IN WORK-RELATED INJURIES BY OFFERING A MORE
CERTAIN, THOUGH GENERALLY LESS REMUNERATIVE, COMPENSATION.  IN THE
INSTANT CASE, THE RECOVERY SOUGHT UNDER THE WORKMEN'S COMPENSATION
STATUTE WAS IN LIEU OF AN ACTION UNDER THE IDENTICAL DEATH STATUTE
WHICH WAS AT ISSUE IN LEVY.  /11/  GIVEN THE SIMILARITIES IN THE
ORIGINS AND PURPOSES OF THESE TWO STATUTES, AND THE SIMILARITY OF
LOUISIANA'S PATTERN OF DISCRIMINATION IN RECOVERY RIGHTS, IT WOULD
REQUIRE A DISREGARD OF PRECEDENT AND THE PRINCIPLES OF STARE DECISIS TO
HOLD THAT LEVY DID NOT CONTROL THE FACTS OF THE CASE BEFORE US.  IT
MAKES NO DIFFERENCE THAT ILLEGITIMATES ARE NOT SO ABSOLUTELY OR BROADLY
BARRED HERE AS IN LEVY; THE DISCRIMINATION REMAINS APPARENT. 

     II 

HAVING DETERMINED THAT LEVY IS THE APPLICABLE PRECEDENT, WE BRIEFLY
REAFFIRM HERE THE REASONING WHICH PRODUCED THAT RESULT.  THE TESTS TO
DETERMINE THE VALIDITY OF STATE STATUTES UNDER THE EQUAL PROTECTION
CLAUSE CLAUSE HAVE BEEN VARIOUSLY EXPRESSED, BUT THIS COURT REQUIRES,
AT A MINIMUM, THAT A STATUTORY CLASSIFICATION BEAR SOME RATIONAL
RELATIONSHIP TO A LEGITIMATE STATE PURPOSE.  MOREY V. DOUD, 354 U.S.
457 (1957); WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483 (1955); GULF,
COLORADO & SANTA FE R. CO. V. ELLIS, 165 U.S. 150 (1897); YICK WO V.
HOPKINS, 118 U.S. 356 (1886).  THOUGH THE LATITUDE GIVEN STATE ECONOMIC
AND SOCIAL REGULATION IS NECESSARILY BROAD, WHEN STATE STATUTORY
CLASSIFICATIONS APPROACH SENSITIVE AND FUNDAMENTAL PERSONAL RIGHTS,
THIS COURT EXERCISES A STRICTER SCRUTINY, BROWN V. BOARD OF EDUCATION,
347 U.S. 483 (1954); HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S.
663 (1966).  THE ESSENTIAL INQUIRY IN ALL THE FOREGOING CASES IS,
HOWEVER, INEVITABLY A DUAL ONE:  WHAT LEGITIMATE STATE INTEREST DOES
THE CLASSIFICATION PROMOTE?  WHAT FUNDAMENTAL PERSONAL RIGHTS MIGHT THE
CLASSIFICATION ENDANGER? 

THE LOUISIANA SUPREME COURT EMPHASIZED STRONGLY THE STATE'S INTEREST
IN PROTECTING "LEGITIMATE FAMILY RELATIONSHIPS," 257 LA.,AT 433, 242
SO.2D, AT 570, AND THE REGULATION AND PROTECTION OF THE FAMILY UNIT
HAVE INDEED BEEN A VENERABLE STATE CONCERN.  WE DO NOT QUESTION THE
IMPORTANCE OF THAT INTEREST; WHAT WE DO QUESTION IS HOW THE CHALLENGED
STATUTE WILL PROMOTE IT.  AS WAS SAID IN GLONA: 

"(WE SEE NO POSSIBLE RATIONAL BASIS . . . FOR ASSUMING THAT IF THE
NATURAL MOTHER IS ALLOWED RECOVERY FOR THE WRONGFUL DEATH OF HER
ILLEGITIMATE CHILD, THE CAUSE OF ILLEGITIMACY WILL BE SERVED.  IT
WOULD, INDEED, BE FARFETCHED TO ASSUME THAT WOMEN HAVE ILLEGITIMATE
CHILDREN SO THAT THEY CAN BE COMPENSATED IN DAMAGES FOR THEIR DEATH." 
GLONA V. AMERICAN GUARANTEE & LIABILITY INSURANCE CO., SUPRA, AT 75. 
NOR CAN IT BE THOUGHT HERE THAT PERSONS WILL SHUN ILLICIT RELATIONS
BECAUSE THE OFFSPRING MAY NOT ONE DAY REAP THE BENEFITS OF WORKMEN'S
COMPENSATION. 

IT MAY PERHAPS BE SAID THAT STATUTORY DISTINCTIONS BETWEEN THE
LEGITIMATE AND ILLEGITIMATE REFLECT CLOSER FAMILY RELATIONSHIPS IN THAT
THE ILLEGITIMATE IS MORE OFTEN NOT UNDER CARE IN THE HOME OF THE FATHER
NOR EVEN SUPPORTED BY HIM.  THE ILLEGITIMATE, SO THIS ARGUMENT RUNS,
MAY THUS BE MADE LESS ELIGIBLE FOR THE STATUTORY RECOVERIES AND
INHERITANCES RESERVED FOR THOSE MORE LIKELY TO BE WITHIN THE AMBIT OF
FAMILIAL CARE AND AFFECTION.  WHATEVER THE MERITS ELSEWHERE OF THIS
CONTENTION, IT IS NOT COMPELLING IN A STATUTORY COMPENSATION SCHEME
WHERE DEPENDENCY ON THE DECEASED IS A PREREQUISITE TO ANYONE'S
RECOVERY, AND WHERE THE ACKNOWLEDGMENT SO NECESSARY TO EQUAL RECOVERY
RIGHTS MAY BE UNLIKELY TO OCCUR OR LEGALLY IMPOSSIBLE TO EFFECTUATE
EVEN WHERE THE ILLEGITIMATE CHILD MAY BE NOURISHED AND LOVED. 

FINALLY, WE ARE MINDFUL THAT STATES HAVE FREQUENTLY DRAWN ARBITRARY
LINES IN WORKMEN'S COMPENSATION AND WRONGFUL-DEATH STATUTES TO
FACILITATE POTENTIALLY DIFFICULT PROBLEMS OF PROOF.  NOTHING IN OUR
DECISION WOULD IMPOSE ON STATE COURT SYSTEMS A GREATER BURDEN IN THIS
REGARD.  BY LIMITING RECOVERY TO DEPENDENTS OF THE DECEASED, LOUISIANA
SUBSTANTIALLY LESSENS THE POSSIBLE PROBLEMS OF LOCATING ILLEGITIMATE
CHILDREN AND OF DETERMINING UNCERTAIN CLAIMS OF PARENTHOOD.  /12/  OUR
DECISION FULLY RESPECTS LOUISIANA'S CHOICE ON THIS MATTER.  IT WILL NOT
EXPAND CLAIMANTS FOR WORKMEN'S COMPENSATION BEYOND THOSE IN A DIRECT
BLOOD AND DEPENDENCY RELATIONSHIP WITH THE DECEASED AND IT AVOIDS
ALTOGETHER DIFFUSE QUESTIONS OF AFFECTION AND AFFINITY WHICH POSE
DIFFICULT PROBATIVE PROBLEMS.  OUR RULING REQUIRES EQUALITY OF
TREATMENT BETWEEN TWO CLASSES OF PERSONS THE GENUINENESS OF WHOSE
CLAIMS THE STATE MIGHT IN ANY EVENT BE REQUIRED TO DETERMINE.     THE
STATE INTEREST IN LEGITIMATE FAMILY RELATIONSHIPS IS NOT SERVED BY THE
STATUTE; THE STATE INTEREST IN MINIMIZING PROBLEMS OF PROOF IS NOT
SIGNIFICANTLY DISTURBED BY OUR DECISION.  THE INFERIOR CLASSIFICATION
OF DEPENDENT UNACKNOWLEDGED ILLEGITIMATES BEARS, IN THIS INSTANCE, NO
SIGNIFICANT RELATIONSHIP TO THOSE RECOGNIZED PURPOSES OF RECOVERY WHICH
WORKMEN'S COMPENSATION STATUTES COMMENDABLY SERVE.  WORKMENS
COMPENSATION STATUTES COMMENDABLY SERVE. 

THE STATUS OF ILLEGITIMACY HAS EXPRESSED THROUGH THE AGES SOCIETY'S
CONDEMNATION OF IRRESPONSIBLE LIAISONS BEYOND THE BONDS OF MARRIAGE. 
BUT VISITING THIS CONDEMNATION ON THE HEAD OF AN INFANT IS ILLOGICAL
AND UNJUST.  /13/  MOREOVER, IMPOSING DISABILITIES ON THE ILLEGITIMATE
CHILD IS CONTRARY TO THE BASIC CONCEPT OF OUR SYSTEM THAT LEGAL BURDENS
SHOULD BEAR SOME RELATIONSHIP TO INDIVIDUAL RESPONSIBILITY OR
WRONGDOING.  OBVIOUSLY, NO CHILD IS RESPONSIBLE FOR HIS BIRTH AND
PENALIZING THE ILLEGITIMATE CHILD IS AN INEFFECTUAL-- AS WELL AS AN
UNJUST-- WAY OF DETERRING THE PARENT.  COURTS ARE POWERLESS TO PREVENT
THE SOCIAL OPPROBRIUM SUFFERED BY THESE HAPLESS CHILDREN, BUT THE EQUAL
PROTECTION CLAUSE DOES ENABLE US TO STRIKE DOWN DISCRIMINATORY LAWS
RELATING TO STATUS OF BIRTH /14/  WHERE-- AS IN THIS CASE-- THE
CLASSIFICATION IS JUSTIFIED BY NO LEGITIMATE STATE INTEREST, COMPELLING
OR OTHERWISE. 

  REVERSED AND REMANDED. 

/1/  STOKES V. AETNA CASUALTY & SURETY CO., 257 LA. 424, 242 SO.2D
567 (1970). 

/2/  LA. REV. STAT. SEC. 23:1232 (1967) ESTABLISHES THE SCHEDULE OF
PAYMENT OF WORKMEN'S COMPENSATION BENEFITS TO VARIOUS CLASSIFICATIONS
OF DEPENDENTS AS FOLLOWS: 

"PAYMENT TO DEPENDENTS SHALL BE COMPUTED AND DIVIDED AMONG THEM ON
THE FOLLOWING BASIS: 

"(1) IF THE WIDOW OR WIDOWER ALONE, THIRTY-TWO AND ONE-HALF PER
CENTUM OF WAGES. 

"(2) IF THE WIDOW OR WIDOWER AND ONE CHILD, FORTY-SIX AND ONE
QUARTER PER CENTUM OF WAGES. 

"(3) IF THE WIDOW OR WIDOWER AND TWO OR MORE CHILDREN, SIXTY-FIVE
PER CENTUM OF WAGES. 

"(4) IF ONE CHILD ALONE, THIRTY-TWO AND ONE-HALF PER CENTUM OF WAGES
OF DECEASED. 

"(5) IF TWO CHILDREN, FORTY-SIX AND ONE-QUARTER PER CENTUM OF
WAGES. 

"(6) IF THREE OR MORE CHILDREN, SIXTY-FIVE PER CENTUM OF WAGES. 

"(7) IF THERE ARE NEITHER WIDOW, WIDOWER, NOR CHILD, THEN TO THE
FATHER OR MOTHER, THIRTY-TWO AND ONE-HALF PER CENTUM OF WAGES OF THE
DECEASED.  IF THERE ARE BOTH FATHER AND MOTHER, SIXTY-FIVE PER CENTUM
OF WAGES. 

"(8) IF THERE ARE NEITHER WIDOW, WIDOWER, NOR CHILD, NOR DEPENDENT
PARENT ENTITLED TO COMPENSATION, THEN TO ONE BROTHER OR SISTER, THIRTY
TWO AND ONE-HALF PER CENTUM OF WAGES WITH ELEVEN PER CENTUM ADDITIONAL
FOR EACH BROTHER OR SISTER IN EXCESS OF ONE.  IF OTHER DEPENDENTS THAN
THOSE ENUMERATED, THIRTY-TWO AND ONE-HALF PER CENTUM OF WAGES FOR ONE,
AND ELEVEN PER CENTUM ADDITIONAL FOR EACH SUCH DEPENDENT IN EXCESS OF
ONE, SUBJECT TO A MAXIMUM OF SIXTY-FIVE PER CENTUM OF WAGES FOR ALL,
REGARDLESS OF THE NUMBER OF DEPENDENTS." 

/3/  LA. REV. STAT. 23:1021(3).  THE RELEVANT PROVISIONS FOR
ACKNOWLEDGMENT OF AN ILLEGITIMATE CHILD ARE AS FOLLOWS: 

LA. CIV. CODE, ART. 202 (1967): 

"ILLEGITIMATE CHILDREN WHO HAVE BEEN ACKNOWLEDGED BY THEIR FATHER,
ARE CALLED NATURAL CHILDREN; THOSE WHO HAVE NOT BEEN ACKNOWLEDGED BY
THEIR FATHER, OR WHOSE FATHER AND MOTHER WERE INCAPABLE OF CONTRACTING
MARRIAGE AT THE TIME OF CONCEPTION, OR WHOSE FATHER IS UNKNOWN, ARE
CONTRADISTINGUISHED BY THE APPELLATION OF BASTARDS." 

LA. CIV. CODE, ART. 203: 

"THE ACKNOWLEDGMENT OF AN ILLEGITIMATE CHILD SHALL BE MADE BY A
DECLARATION EXECUTED BEFORE A NOTARY PUBLIC, IN PRESENCE OF TWO
WITNESSES, BY THE FATHER AND MOTHER OR EITHER OF THEM, WHENEVER IT
SHALL NOT HAVE BEEN MADE IN THE REGISTERING OF THE BIRTH OR BAPTISM OF
SUCH CHILD." 

LA. CIV. CODE, ART. 204: 

"SUCH ACKNOWLEDGMENT SHALL NOT BE MADE IN FAVOR OF CHILDREN WHOSE
PARENTS WERE INCAPABLE OF CONTRACTING MARRIAGE AT THE TIME OF
CONCEPTION; HOWEVER, SUCH ACKNOWLEDGMENT MAY BE MADE IF THE PARENTS
SHOULD CONTRACT A LEGAL MARRIAGE WITH EACH OTHER." 

/4/  SEE N. 2, SUPRA. 

/5/  232 SO.2D 328 (LA. APP. 1969). 

/6/  STOKES V. AETNA CASUALTY & SURETY CO., SEE N. 1, SUPRA. 

/7/  THE AFFINITY AND DEPENDENCY ON THE FATHER OF THE POSTHUMOUSLY
BORN ILLEGITIMATE CHILD ARE, OF COURSE, NOT COMPARABLE TO THOSE OF OFF
SPRING LIVING AT THE TIME OF THEIR FATHER'S DEATH.  THIS FACT, HOWEVER,
DOES NOT ALTER OUR VIEW OF THE CASE.  WE THINK A POSTHUMOUSLY BORN
ILLEGITIMATE CHILD SHOULD BE TREATED THE SAME AS A POSTHUMOUSLY BORN
LEGITIMATE CHILD, WHICH THE LOUISIANA STATUTES FAIL TO DO. 

/8/  THE COURT OVER A CENTURY AGO VOICED STRONG SUPPORT FOR STATE
POWERS OVER INHERITANCE:  "NOW THE LAW IN QUESTION IS NOTHING MORE THAN
AN EXERCISE OF THE POWER WHICH EVERY STATE AND SOVEREIGNTY POSSESSES,
OF REGULATING THE MANNER AND TERM UPON WHICH PROPERTY REAL OR PERSONAL
WITHIN ITS DOMINION MAY BE TRANSMITTED BY LAST WILL AND TESTAMENT, OR
BY INHERITANCE; AND OF PRESCRIBING WHO SHALL AND WHO SHALL NOT BE
CAPABLE OF TAKING IT."  MAGER V. GRIMA, 8 HOW.  490, 493 (1850).  SEE
LYETH V. HOEY, 305 U.S. 188, 193 (1938). 

/9/  LA. CIV. CODE, ART. 204, SEE N. 3, SUPRA, PROHIBITS
ACKNOWLEDGMENT OF CHILDREN WHOSE PARENTS WERE INCAPABLE OF CONTRACTING
MARRIAGE AT THE TIME OF CONCEPTION.  ACKNOWLEDGMENT MAY ONLY BE MADE IF
THE PARENTS COULD CONTRACT A LEGAL MARRIAGE WITH EACH OTHER.  DECEDENT
IN THE INSTANT CASE REMAINED MARRIED TO HIS FIRST WIFE-- THE MOTHER OF
HIS FOUR LEGITIMATE CHILDREN-- UNTIL HIS DEATH.  THUS, AT ALL TIMES HE
WAS LEGALLY BARRED FROM MARRYING WILLIE MAE WEBER, THE MOTHER OF THE
TWO ILLEGITIMATE CHILDREN.  IT THEREFORE WAS IMPOSSIBLE FOR HIM TO
ACKNOWLEDGE LEGALLY HIS ILLEGITIMATE CHILDREN AND THEREBY QUALIFY THEM
FOR PROTECTION UNDER THE LOUISIANA WORKMEN'S COMPENSATION ACT.  SEE
ALSO WILLIAMS V. AMERICAN EMP.  INS.  CO., 237 LA. 101, 110 SO.2D 541
(1959), WHERE THE LOUISIANA SUPREME COURT HELD THAT A POSTHUMOUSLY BORN
ILLEGITIMATE CHILD CANNOT BE CLASSIFIED AS A CHILD ENTITLED TO
WORKMEN'S COMPENSATION BENEFITS, AS DEFINED UNDER LA. REV. STAT.
23:1021(3). 

/10/  SEE 391 U.S. 73, 76 (1968) (HARLAN, J., DISSENTING IN GLONA V.
AMERICAN GUARANTEE & LIABILITY INSURANCE CO., AND LEVY V. LOUISIANA). 

/11/  LA. CIV. CODE, ART. 2315. 

/12/  THE MOST RELEVANT SECTIONS OF THE LOUISIANA STATUTES DEFINING
DEPENDENCY FOR PURPOSES OF WORKMEN'S COMPENSATION RECOVERY READ AS
FOLLOWS: 

LA. REV. STAT. SEC. 23:1231: 

"FOR INJURY CAUSING DEATH WITHIN TWO YEARS AFTER THE ACCIDENT THERE
SHALL BE PAID TO THE LEGAL DEPENDENT OF THE EMPLOYEE, ACTUALLY AND
WHOLLY DEPENDENT UPON HIS EARNINGS FOR SUPPORT AT THE TIME OF THE
ACCIDENT AND DEATH, A WEEKLY SUM AS HEREINAFTER PROVIDED, FOR A PERIOD
OF FOUR HUNDRED WEEKS . . . " 

LA. REV. STAT. SEC. 23:1251: 

"THE FOLLOWING PERSONS SHALL BE CONCLUSIVELY PRESUMED TO BE WHOLLY AND
ACTUALLY DEPENDENT UPON THE DECEASED EMPLOYEE:

  .          .          .          . 

"(3) A CHILD UNDER THE AGE OF EIGHTEEN YEARS . . . UPON THE PARENT
WITH WHOM HE IS LIVING AT THE TIME OF THE INJURY OF THE PARENT." 

THE ABOVE SECTION THUS QUALIFIES THE ILLEGITIMATE CHILDREN IN THIS
CASE AS DEPENDENTS. 

LA. REV. STAT. SEC. 23:1252: 

"IN ALL OTHER CASES, THE QUESTION OF LEGAL AND ACTUAL DEPENDENCY IN
WHOLE OR IN PART, SHALL BE DETERMINED IN ACCORDANCE WITH THE FACTS AS
THEY MAY BE AT THE TIME OF THE ACCIDENT AND DEATH . . . "

NATURALLY, THE VARIATIONS OF DEPENDENCY CLAIMS COMING TO LOUISIANA
COURTS UNDER THESE SECTIONS ARE MANY, BUT LOUISIANA HAS CONSISTENTLY
REQUIRED VALID EVIDENCE OF DEPENDENCY FOR RECOVERY.  SEE, E.G.,
SANDIDGE V. AETNA CASUALTY & SURETY CO., 29 SO.2D 522 (LA.APP.  1947),
WHERE CHILDREN, LIVING WITH THEIR MOTHER WHO WAS SEPARATED FROM THE
FATHER, IN ORDER TO RECEIVE THE MAXIMUM COMPENSATION FOR THE FATHER'S
DEATH, MUST ESTABLISH THAT THEY WERE WHOLLY DEPENDENT UPON THE FATHER
FOR THEIR SUPPORT. 

/13/  SEE, E.G., GRAY & RUDOVSKY, THE COURT ACKNOWLEDGES THE
ILLEGITIMATE: LEVY V. LOUISIANA AND GLONA V. AMERICAN GUARANTEE &
LIABILITY INSURANCE CO., 118 U.PA.L.REV.  1 (1969).  A COMPREHENSIVE
STUDY OF THE LEGAL STATUS OF ILLEGITIMACY AND THE EFFECT THEREOF IS H.
KRAUSE, ILLEGITIMACY:  LAW AND SOCIAL POLICY (1971); REVIEWED BY
WADLINGTON, 58 VA.L.REV.  188 (1972). 

/14/  SEE GRAHAM V. RICHARDSON, 403 U.S. 365 (1971); HUNTER V.
ERICKSON, 393 U.S. 385 (1969); BROWN V. BOARD OF EDUCATION, 347 U.S.
483 (1954); AND SEE ALSO HIRABAYASHI V. UNITED STATES, 320 U.S. 81
(1943). 

MR. JUSTICE BLACKMUN, CONCURRING IN THE RESULT. 

FOR ME, LA. CIV. CODE, ART. 204, IS THE PROVISION IN THE STATE'S
STATUTORY STRUCTURE THAT PROVES FATAL FOR THIS WORKMEN'S COMPENSATION
CASE UNDER THE FOCUS OF CONSTITUTIONAL MEASUREMENT.  THE ARTICLE
OPERATED TO DENY HENRY STOKES THE ABILITY EVEN TO ACKNOWLEDGE HIS
ILLEGITIMATES SO THAT THEY MIGHT QUALIFY AS CHILDREN WITHIN THE
DEFINITION PROVIDED BY LA. REV. STAT. 23:1021(3).  THIS IS SO BECAUSE
THE DECEDENT (INASMUCH AS HE WAS THEN MARRIED TO ADLAY JONES STOKES AND
REMAINED MARRIED TO HER THE REST OF HIS LIFE) AND THE MOTHER WERE
INCAPABLE OF CONTRACTING MARRIAGE AT THE TIME OF CONCEPTION AND
THEREAFTER.  THIS BAR, INDEED, UNDER THE COURT'S DECIDED CASES, DENIED
EQUAL PROTECTION TO THE ILLEGITIMATES.  CF. LABINE V. VINCENT, 401 U.S.
532, 539 (1971). 

I THUS GIVE PRIMARY EMPHASIS TO THE PRESENCE OF ART. 204 AND, I
BELIEVE, FAR MORE EMPHASIS THAN DOES THE COURT.  IF THAT STATUTE DID
NOT EXIST OR WERE INAPPLICABLE, THE CASE MIGHT BE A DIFFERENT ONE. 
WHILE THE COURT REFERS TO ART. 204, AND TO A DEGREE RELIES UPON IT,
ANTE, AT 171 N. 9, IT SEEMS TO ME THAT ID DOES SO ONLY SECONDARILY.  I
READ THE OPINION AS FLATLY GRANTING DEPENDENT UNACKNOWLEDGED
ILLEGITIMATE CHILDREN FULL EQUALITY WITH DEPENDENT LEGITIMATE CHILDREN
AND THEREFORE AS STRIKING DOWN THE LOUISIANA STATUTORY SCHEME EVEN FOR
THE SITUATION WHERE THE FATHER HAS THE POWER TO ACKNOWLEDGE HIS
ILLEGITIMATES BUT REFRAINS FROM DOING SO.  IN OTHER WORDS, THE COURT
HOLDS THE LOUISIANA SYSTEM UNCONSTITUTIONAL WITH RESPECT TO
ILLEGITIMATE DEPENDENT CHILDREN WHOLLY APART FROM THE BARRIER OF ART.
204.  CERTAINLY, THE FIRST PARAGRAPH OF THE OPINION IS TO THIS EFFECT. 

IN DECIDING THIS CASE, I NEED NOT, AND WOULD NOT, GO THAT FAR.  I
WOULD LET THE RESOLUTION OF THAT ISSUE AWAIT ITS APPROPRIATE
PRESENTATION. 

MR. JUSTICE REHNQUIST, DISSENTING. 

THIS CASE IS DISTINGUISHABLE FROM LEVY V. LOUISIANA, 391 U.S. 68
(1968), AND COULD BE DECIDED THE OTHER WAY ON THE BASIS OF THIS COURT'S
MORE RECENT DECISION IN LABINE V. VINCENT, 401 U.S. 532 (1971).  YET I
CERTAINLY DO NOT REGARD THE COURT'S DECISION AS AN UNREASONABLE DRAWING
OF THE LINE BETWEEN LEVY AND LABINE, AND WOULD NOT FEEL IMPELLED TO
DISSENT IF I REGARDED LEVY AS RIGHTLY DECIDED.  I DO NOT SO REGARD IT.
I MUST AGREE WITH MR. JUSTICE HARLAN'S DISSENTING OPINION, WHICH
DESCRIBED LEVY AND ITS COMPANION CASE, GLONA V. AMERICAN GUARANTEE &
LIABILITY INSURANCE CO., 391 U.S. 73 (1968), AS "CONSTITUTIONAL
CURIOSITIES," AND CALLED THE COURT'S METHOD OF REACHING THE RESULT "A
PROCESS THAT CAN ONLY BE DESCRIBED AS BRUTE FORCE."  ID., AT 76. 

SINCE LEVY WAS A CONSTITUTIONAL HOLDING, ITS DOCTRINE IS OPEN TO
LATER RE-EXAMINATION TO A GREATER EXTENT THAN IF IT HAD DECIDED A
QUESTION OF STATUTORY CONSTRUCTION OR SOME OTHER NONCONSTITUTIONAL
ISSUE.  SEE COLEMAN V. ALABAMA, 399 U.S. 1, 22 (1970) (BURGER, C. J.,
DISSENTING); BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398 U.S. 235,
259 (1970) (BLACK, J., DISSENTING); BURNET V. CORONADO OIL & GAS CO.,
285 U.S. 393, 405-410 (1932) (BRANDEIS, J., DISSENTING). 

THE EQUAL PROTECTION CLAUSE WAS ADOPTED AS A PART OF THE FOURTEENTH
AMENDMENT IN 1868.  FIVE YEARS LATER MR. JUSTICE MILLER DELIVERED THIS
COURT'S INITIAL CONSTRUCTION OF THAT AMENDMENT IN HIS CLASSIC OPINION
IN SLAUGHTER-HOUSE CASES, 16 WALL.  36 (1873).  AFTER SETTING FORTH AN
ACCOUNT OF THE ADOPTION OF THAT AMENDMENT, HE DESCRIBED THE ACCOUNT AS
A "RECAPITULATION OF EVENTS, ALMOST TOO RECENT TO BE CALLED HISTORY,
BUT WHICH ARE FAMILIAR TO US ALL."  16 WALL.,AT 71.  REFERRING TO THE
EQUAL PROTECTION CLAUSE, HE SAID: 

"WE DOUBT VERY MUCH WHETHER ANY ACTION OF A STATE NOT DIRECTED BY
WAY OF DISCRIMINATION AGAINST THE NEGROES AS A CLASS, OR ON ACCOUNT OF
THEIR RACE, WILL EVER BE HELD TO COME WITHIN THE PURVIEW OF THIS
PROVISION."  16 WALL.,AT 81.  IN NEARLY 100 YEARS OF SUBSEQUENT
ADJUDICATION CONCERNING THIS CLAUSE, THE COURT HAS ADHERED TO THE
NOTION EXPRESSED IN THE SLAUGHTER-HOUSE CASES THAT RACIAL
CLASSIFICATIONS ARE "SUSPECT."  SEE, E.G., LOVING V. VIRGINIA, 388 U.S.
1 (1967).  BUT DURING THAT SAME PERIOD OF TIME, THIS COURT HAS PROVED
MR. JUSTICE MILLER A BAD PROPHET WITH RESPECT TO NONRACIAL
CLASSIFICATION. 

AS NOTED IN LEVY, IN THE FIELD OF ECONOMIC AND SOCIAL LEGISLATION,
THE COURT HAS GIVEN GREAT LATITUDE TO THE LEGISLATURES IN MAKING
CLASSIFICATIONS.  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489
(1955); MOREY V. DOUD, 354 U.S. 457 (1957).  THE TEST HAS BEEN WHETHER
THERE IS ANY RATIONAL BASIS FOR THE LEGISLATIVE CLASSIFICATION.  SEE
KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS, 330 U.S. 552, 556 (1947). 
"STATE LEGISLATURES ARE PRESUMED TO HAVE ACTED WITHIN THEIR
CONSTITUTIONAL POWER DESPITE THE FACT THAT, IN PRACTICE, THEIR LAWS
RESULT IN SOME INEQUALITY.  A STATUTORY DISCRIMINATION WILL NOT BE SET
ASIDE IF ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO JUSTIFY
IT."  MCGOWAN V. MARYLAND, 366 U.S. 420, 425-426 (1961).  UNDER THIS
TEST, SO LONG AS THE "DISCRIMINATION IS FOUNDED UPON A REASONABLE
DISTINCTION, OR DIFFERENCE IN STATE POLICY," ALLIED STORES OF OHIO,
INC. V. BOWERS, 358 U.S. 522, 528 (1959), THE COURT WILL NOT ATTEMPT TO
WEIGH ITS SOCIAL VALUE OR DETERMINE WHETHER THE CLASSIFICATION MIGHT
HAVE BEEN MORE FINELY DRAWN.  FERGUSON V. SKRUPA, 372 U.S. 726 (1963). 
HOWEVER, THIS SALUTARY PRINCIPLE HAS BEEN DEPARTED FROM BY THE COURT IN
RECENT YEARS, AS POINTED OUT IN ITS OPINION HERE, WHERE THE COURT HAS
FELT THAT THE CLASSIFICATION HAS AFFECTED WHAT IT CONCEIVES TO BE
"FUNDAMENTAL PERSONAL RIGHTS."     THE DIFFICULTY WITH THIS APPROACH,
DEVOID AS IT IS OF ANY HISTORICAL OR TEXTUAL SUPPORT IN THE LANGUAGE OF
THE EQUAL PROTECTION CLAUSE, IS THAT IT LEAVES APPARENTLY TO THE
JUSTICES OF THIS COURT THE DETERMINATION OF WHAT ARE, AND WHAT ARE NOT,
"FUNDAMENTAL PERSONAL RIGHTS."  THOSE WHO FRAMED AND RATIFIED THE
CONSTITUTION AND THE VARIOUS AMENDMENTS TO IT CHOSE TO SELECT CERTAIN
PARTICULAR TYPES OF RIGHTS AND FREEDOMS, AND TO GUARANTEE THEM AGAINST
IMPAIRMENT BY MAJORITY ACTION THROUGH LEGISLATION OR OTHERWISE.  WHILE
THE DETERMINATION OF THE EXTENT TO WHICH A RIGHT IS PROTECTED MAY
RESULT IN THE DRAWING OF FINE LINES, THE FUNDAMENTAL SANCTION OF THE
RIGHT ITSELF IS FOUND IN THE LANGUAGE OF THE CONSTITUTION, AND NOT
ELSEWHERE.  THE SAME IS UNFORTUNATELY NOT TRUE OF THE DOCTRINE OF
"FUNDAMENTAL PERSONAL RIGHTS."  THIS BODY OF DOCTRINE CREATED BY THE
COURT CAN ONLY BE DESCRIBED AS A JUDICIAL SUPERSTRUCTURE, AWKWARDLY
ENGRAFTED UPON THE CONSTITUTION ITSELF. 

THE COURT'S EXPERIENCE WITH SIMILAR SUPERSTRUCTURES HAS NOT BEEN A
HAPPY ONE.  THE FIRST PART OF THIS CENTURY SAW THE EVOLUTION OF THE
DOCTRINE OF "FREEDOM OF CONTRACT" WHICH WAS HELD BY THE COURT DURING
PART OF THAT TIME TO BE A PART OF THE FOURTEENTH AMENDMENT'S
REQUIREMENT THAT NO PERSON BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY
WITHOUT DUE PROCESS OF LAW.  THIS DOCTRINE HAD ITS JUST DESERTS IN WEST
COAST HOTEL CO. V. PARRISH, 300 U.S. 379, 391 (1937), WHERE MR. CHIEF
JUSTICE HUGHES, SPEAKING FOR THE COURT, SAID: 

"THE CONSTITUTIONAL PROVISION INVOKED IS THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT GOVERNING THE STATES, AS THE DUE PROCESS CLAUSE
INVOKED IN THE ADKINS CASE GOVERNED CONGRESS.  IN EACH CASE THE
VIOLATION ALLEGED BY THOSE ATTACKING MINIMUM WAGE REGULATION FOR WOMEN
IS DEPRIVATION OF FREEDOM OF CONTRACT.  WHAT IS THIS FREEDOM?  THE
CONSTITUTION DOES NOT SPEAK OF FREEDOM OF CONTRACT.  IT SPEAKS OF
LIBERTY AND PROHIBITS THE DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS OF
LAW." 

IN A SIMILAR VEIN IT MAY BE SAID THAT THE CONSTITUTION DOES NOT
SPEAK OF "FUNDAMENTAL PERSONAL RIGHTS," BUT SPEAKS OF THE EQUAL
PROTECTION OF THE LAWS AND PROHIBITS THE DENIAL THEREOF.  TWO YEARS
AGO, THIS COURT IS DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970),
RECOGNIZED THAT THE BROAD LATITUDE ACCORDED STATE LEGISLATURES BY BOTH
THE CONTEMPORARY HISTORY AND THE TEXT OF THE EQUAL PROTECTION CLAUSE
WAS NOT LIMITED TO STATUTES REGULATING BUSINESS OR INDUSTRY.  THERE, IN
A CASE DEALING WITH THE ADMINISTRATION OF PUBLIC WELFARE ASSISTANCE
WHICH, THE COURT NOTED, "INVOLVES THE MOST BASIC ECONOMIC NEEDS OF
IMPOVERISHED HUMAN BEINGS," THE COURT NONETHELESS QUITE PROPERLY
APPLIED THE "RATIONAL BASIS" CONSTITUTIONAL STANDARD.  397 U.S.,AT
485.  IT REAFFIRMED THE HISTORICALLY CORRECT STATEMENT OF THE MEANING
OF EQUAL PROTECTION IN THESE WORDS: 

     "IN THE AREA OF ECONOMICS AND SOCIAL WELFARE, A STATE DOES NOT

  VIOLATE THE EQUAL PROTECTION CLAUSE MERELY BECAUSE THE

  CLASSIFICATIONS MADE BY ITS LAWS ARE IMPERFECT.  IF THE

  CLASSIFICATION HAS SOME 'REASONABLE BASIS,' IT DOES NOT OFFEND

  THE CONSTITUTION SIMPLY BECAUSE THE CLASSIFICATION 'IS NOT MADE

  WITH MATHEMATICAL NICETY OR BECAUSE IN PRACTICE IT RESULTS IN

  SOME INEQUALITY.'  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S.

  61, 78.  'THE PROBLEMS OF GOVERNMENT ARE PRACTICAL ONES AND MAY

  JUSTIFY, IF THEY DO NOT REQUIRE, ROUGH ACCOMMODATIONS--

  ILLOGICAL, IT MAY BE, AND UNSCIENTIFIC.'  METROPOLIS THEATRE CO.

  V. CITY OF CHICAGO, 228 U.S. 61, 69-70.  'A STATUTORY

  DISCRIMINATION WILL NOT BE SET ASIDE IF ANY STATE OF FACTS

  REASONABLY MAY BE CONCEIVED TO JUSTIFY IT.'  MCGOWAN V. MARYLAND,

  366 U.S. 420, 426." 

THE COURT IN TODAY'S OPINION, RECOGNIZING THAT TWO DIFFERENT
STANDARDS HAVE BEEN APPLIED IN EQUAL PROTECTION CASES, APPARENTLY
FORMULATES A HYBRID STANDARD WHICH IS THE BASIS OF DECISION HERE.  THE
STANDARD IS A TWO-PRONGED ONE: 

"WHAT LEGITIMATE STATE INTEREST DOES THE CLASSIFICATION PROMOTE? 
WHAT FUNDAMENTAL PERSONAL RIGHTS MIGHT THE CLASSIFICATION ENDANGER?" 

SURELY THERE COULD BE NO BETTER NOR MORE SUCCINCT GUIDE TO SOUND
LEGISLATION THAN THAT SUGGESTED BY THESE TWO QUESTIONS.  THEY ARE
SOMEWHAT LESS USEFUL, HOWEVER, AS GUIDES TO CONSTITUTIONAL
ADJUDICATION.  HOW IS THIS COURT TO DETERMINE WHETHER OR NOT A STATE
INTEREST IS "LEGITIMATE"?  AND HOW IS THE COURT TO KNOW WHEN IT IS
DEALING WITH A "FUNDAMENTAL PERSONAL RIGHT"? 

WHILE THE COURT'S OPINION TODAY IS BY NO MEANS A SHARP DEPARTURE
FROM THE PRECEDENTS ON WHICH IT RELIES, IT IS AN EXTRAORDINARY
DEPARTURE FROM WHAT I CONCEIVE TO BE THE INTENT OF THE FRAMERS OF THE
FOURTEENTH AMENDMENT AND THE IMPORT OF THE TRADITIONAL PRESUMPTION OF
CONSTITUTIONALITY ACCORDED TO LEGISLATIVE ENACTMENTS.  NOWHERE IN THE
TEXT OF THE CONSTITUTION, OR IN ITS PLAIN IMPLICATIONS, IS THERE ANY
GUIDE FOR DETERMINING WHAT IS A "LEGITIMATE" STATE INTEREST, OR WHAT IS
A "FUNDAMENTAL PERSONAL RIGHT."  THE TRADITIONAL POLICE POWER OF THE
STATES HAS BEEN DEEMED TO EMBRACE ANY MEASURE THOUGHT TO FURTHER THE
WELL-BEING OF THE STATE IN QUESTION, SUBJECT ONLY TO THE SPECIFIC
PROHIBITIONS CONTAINED IN THE FEDERAL CONSTITUTION.  THAT CONSTITUTION
OF COURSE CONTAINS NUMEROUS GUARANTEES OF INDIVIDUAL LIBERTY, WHICH I
WOULD HAVE NO TROUBLE DESCRIBING AS "FUNDAMENTAL PERSONAL LIBERTIES,"
BUT THE RIGHT OF ILLEGITIMATE CHILDREN TO SUE IN STATE COURT TO RECOVER
WORKMEN'S COMPENSATION BENEFITS IS NOT AMONG THEM. 

THE RELATIONSHIP OF THE "LEGITIMATE" STATE INTEREST AND "FUNDAMENTAL
PERSONAL RIGHT" ANALYSIS TO THE CONSTITUTIONAL GUARANTEE OF EQUAL
PROTECTION OF THE LAW IS APPROXIMATELY THE SAME AS THAT OF "FREEDOM OF
CONTRACT" TO THE CONSTITUTIONAL GUARANTEE THAT NO PERSON SHALL BE
DEPRIVED OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW.  IT
IS AN INVITATION FOR JUDICIAL EXEGESIS OVER AND ABOVE THE COMMANDS OF
THE CONSTITUTION, IN WHICH VALUES THAT CANNOT POSSIBLY HAVE THEIR
SOURCE IN THAT INSTRUMENT ARE INVOKED TO EITHER VALIDATE OR CONDEMN THE
COUNTLESS LAWS ENACTED BY THE VARIOUS STATES.  IN REFUSING TO ACCEPT
THE BREADTH OF MEANING OF THE FOURTEENTH AMENDMENT URGED UPON THE COURT
IN THE SLAUGHTER-HOUSE CASES, MR. JUSTICE MILLER SAID: 

"AND STILL FURTHER, SUCH A CONSTRUCTION FOLLOWED BY THE REVERSAL OF
THE JUDGMENTS OF THE SUPREME COURT OF LOUISIANA IN THESE CASES, WOULD
CONSTITUTE THIS COURT A PERPETUAL CENSOR UPON ALL LEGISLATION OF THE
STATES, ON THE CIVIL RIGHTS OF THEIR OWN CITIZENS, WITH AUTHORITY TO
NULLIFY SUCH AS IT DID NOT APPROVE AS CONSISTENT WITH THOSE RIGHTS, AS
THEY EXISTED AT THE TIME OF THE ADOPTION OF THIS AMENDMENT."  16
WALL.,AT 78. 

MR. JUSTICE HARLAN MADE CLEAR IN HIS DISSENT IN LEVY THE EXCLUSIVELY
STATUTORY BASIS FOR WRONGFUL-DEATH ACTIONS AS A MATTER OF LEGAL
HISTORY, AND THE SAME MAY BE EVEN MORE EMPHATICALLY SAID ABOUT CLAIMS
FOR WORKMEN'S COMPENSATION BENEFITS.  IN SPITE OF THE COURT'S STATEMENT
OF A TEST, ONE PART OF WHICH REQUIRES THE DETERMINATION OF THE EXTENT
TO WHICH "FUNDAMENTAL PERSONAL RIGHTS"  MIGHT BE ENDANGERED BY THE
LOUISIANA CLASSIFICATION HERE, WE ARE NOWHERE TOLD IN THE OPINION JUST
WHAT "FUNDAMENTAL PERSONAL RIGHT" IT IS THAT IS INVOLVED, TO SAY
NOTHING OF WHETHER IT IS "ENDANGERED."  THE COURT SAYS THAT, WHILE
SOCIETY HAS LONG CONDEMNED "IRRESPONSIBLE LIAISONS BEYOND THE BONDS OF
MARRIAGE," NONETHELESS "VISITING THIS CONDEMNATION ON THE HEAD OF AN
INFANT IS ILLOGICAL AND UNJUST."  A FAIR-MINDED MAN MIGHT REGARD IT AS
BOTH, BUT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES NEITHER THAT STATE ENACTMENTS BE "LOGICAL" NOR DOES IT REQUIRE
THAT THEY BE "JUST" IN THE COMMON MEANING OF THOSE TERMS.  IT REQUIRES
ONLY THAT THERE BE SOME CONCEIVABLE SET OF FACTS THAT MAY JUSTIFY THE
CLASSIFICATION INVOLVED. 

IN THE INSTANT CASE I CANNOT CONDEMN AS IRRATIONAL LOUISIANA'S
DISTINCTION BETWEEN LEGITIMATE AND ILLEGITIMATE CHILDREN.  IN A
STATUTORY COMPENSATION SCHEME SUCH AS THIS, THE STATE MUST INEVITABLY
DRAW RATHER FINE AND ARBITRARY LINES.  FOR EXAMPLE, LOUISIANA DECLARES
THAT PARENTS WILL HAVE PRIORITY IN THIS SCHEME OVER FIRST COUSINS,
REGARDLESS OF THE DEGREE OF DEPENDENCY OR AFFECTION IN ANY GIVEN CASE. 
SURELY, NO ONE WOULD CONDEMN THIS CLASSIFICATION AS VIOLATIVE OF THE
FOURTEENTH AMENDMENT, SINCE IT IS LIKELY TO REFLECT FAIRLY THE
UNARTICULATED INTENT OF THE DECEDENT.  SIMILARLY, THE STATE MIGHT
RATIONALLY PRESUME THAT THE DECEDENT WOULD HAVE PREFERRED THE
COMPENSATION TO GO TO HIS LEGITIMATE CHILDREN, RATHER THAN THOSE
ILLEGITIMATES WHOM HE HAS NOT ACKNOWLEDGED. 

ALTHOUGH THE MAJORITY ARGUES THAT "THE STATE INTEREST IN MINIMIZING
PROBLEMS OF PROOF IS NOT SIGNIFICANTLY DISTURBED BY OUR DECISION,"
ANTE, AT 175, IT CLEARLY RECOGNIZES, AS IT MUST, THAT UNDER ITS
DECISION ADDITIONAL AND SOMETIMES MORE DIFFICULT PROBLEMS OF PROOF OF
PATERNITY AND DEPENDENCY MAY BE RAISED.  THIS IS PARTICULARLY TRUE WITH
RESPECT TO PETITIONER'S YOUNGEST CHILD, WHO WAS NOT BORN UNTIL AFTER
THE DEATH OF HIS FATHER.  I BELIEVE THAT A STATE'S DESIRE TO LESSEN
THESE PROBLEMS UNDER ITS STATUTORY SCHEME IS A RATIONAL BASIS FOR
DIFFERENCE IN TREATMENT OF THE TWO CLASSES. 

FINALLY, THE MAJORITY APPARENTLY DRAWS SOME COMFORT FROM THE FACT
THAT THE ILLEGITIMATE CHILDREN HERE COULD NOT HAVE BEEN ACKNOWLEDGED,
SINCE THE DECEDENT REMAINED MARRIED TO ANOTHER WOMAN WHILE HE RAISED
THESE CHILDREN.  HOWEVER, I DO NOT BELIEVE THAT IT FOLLOWS FROM THIS
FACT THAT THE STATUTORY CLASSIFICATION IS IRRATIONAL.  ON THE CONTRARY,
THIS ELEMENT OF THE STATUTORY SCHEME POINTS UP ANOTHER POSSIBLE
LEGISLATIVE PURPOSE WHICH I DO NOT BELIEVE THIS COURT SHOULD SO FREELY
DISMISS.  LOUISIANA, LIKE MANY OTHER STATES, HAS A WIDE VARIETY OF LAWS
DESIGNED TO ENCOURAGE LEGALLY RECOGNIZED AND RESPONSIBLE FAMILY
RELATIONSHIPS.  I BELIEVE THIS PARTICULAR STATUTORY PROVISION,
FORBIDDING ACKNOWLEDGMENT OF ILLEGITIMATE CHILDREN WHEN THE PARENTS
WERE NOT FREE TO MARRY (IN THIS CASE BECAUSE THE FATHER WAS ALREADY
MARRIED TO ANOTHER WOMAN), MIGHT BE CONSIDERED PART OF THAT STATUTORY
PATTERN DESIGNED TO DISCOURAGE FORMATION OF ILLICIT FAMILY
RELATIONSHIPS.  WHETHER THIS IS A WISE STATE POLICY, AND WHETHER THIS
PARTICULAR STATUTE WILL BE PARTICULARLY EFFECTIVE IN ADVANCING IT, ARE
NOT MATTERS FOR THIS COURT'S DETERMINATION. 

LEVY AND TODAY'S DECISION ARE NOT ONLY INCONSISTENT WITH THE LONG
LINE OF EARLIER CASES CONSTRUING THE EQUAL PROTECTION CLAUSE TO FORBID
ONLY IRRATIONAL CLASSIFICATIONS; THEY ARE QUITE INCONSISTENT WITH
DANDRIDGE V. WILLIAMS, SUPRA, DECIDED TWO YEARS AFTER LEVY.  IF STATE
WELFARE LEGISLATION INVOLVING "THE MOST BASIC ECONOMIC NEEDS OF
IMPOVERISHED HUMAN BEINGS" IS TO BE JUDGED BY THE TRADITIONAL
"REASONABLE BASIS" STANDARD, I AM AT A LOSS TO SEE WHY THAT STANDARD
SHOULD NOT LIKEWISE GOVERN LEGISLATION DETERMINING ELIGIBILITY FOR
STATE WORKMEN'S COMPENSATION BENEFITS. 

ALL LEGISLATION INVOLVES CLASSIFICATION AND LINE DRAWING OF ONE KIND
OR ANOTHER.  WHEN THIS COURT EXPANDS THE TRADITIONAL "REASONABLE BASIS"
STANDARD FOR JUDGMENT UNDER THE EQUAL PROTECTION CLAUSE INTO A SEARCH
FOR "LEGITIMATE" STATE INTERESTS THAT THE LEGISLATION MAY "PROMOTE,"
AND "FOR FUNDAMENTAL PERSONAL RIGHTS" THAT IT MIGHT "ENDANGER," IT IS
DOING NOTHING LESS THAN PASSING POLICY JUDGMENTS UPON THE ACTS OF EVERY
STATE LEGISLATURE IN THE COUNTRY. 

VANUE B. LACOUR ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

W. HENSON MOORE ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

NORMAN DORSEN AND MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING REVERSAL. 
..END :















VERMONT V. NEW YORK, 406 U.S. 186 


       VERMONT V. NEW YORK ET AL.

        ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

        NO. 50, ORIG.  ARGUED FEBRUARY 29, 1972-- DECIDED APRIL 24,

           1972 


MOTION FOR LEAVE TO FILE BILL OF COMPLAINT GRANTED. 

PER CURIAM. 

THE MOTION BY VERMONT FOR LEAVE TO FILE A BILL OF COMPLAINT INVOKING
OUR ORIGINAL JURISDICTION AGAINST NEW YORK AND AGAINST INTERNATIONAL
PAPER CO., A NEW YORK CORPORATION DOING BUSINESS IN NEW YORK, IS
GRANTED.  NEW YORK AND INTERNATIONAL PAPER CO. ARE GIVEN UNTIL JUNE 19,
1972, TO ANSWER THE BILL OF COMPLAINT. 

              SO ORDERED. 

FRED I. PARKER, DEPUTY ATTORNEY GENERAL OF VERMONT, ARGUED THE CAUSE
FOR PLAINTIFF.  WITH HIM ON THE BRIEFS WERE JAMES M. JEFFORDS, ATTORNEY
GENERAL, AND JOHN D. HANSEN, ASSISTANT ATTORNEY GENERAL. 

PHILIP WEINBERG, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR DEFENDANT STATE OF NEW YORK.  WITH HIM ON THE BRIEFS WERE
LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND PAUL S. SHEMIN AND IRVING GALT,
ASSISTANT ATTORNEYS GENERAL.  TAGGART WHIPPLE ARGUED THE CAUSE FOR
DEFENDANT INTERNATIONAL PAPER CO. WITH HIM ON THE BRIEFS WERE RICHARD
E. NOLAN AND WILLIAM H. LEVIT, JR.
..END :


















NEBRASKA V. IOWA, 409 U.S. 285 


       NEBRASKA V. IOWA

        NO. 17, ORIG.  DECIDED APRIL 24, 1972-- DECIDED AND DECREE

           ENTERED JANUARY 8, 1973 


OPINION REPORTED:  406 U.S. 117. 

PER CURIAM AND DECREE. 

THE SPECIAL MASTER, AS DIRECTED IN NEBRASKA V. IOWA, 406 U.S. 117,
127 (1972), HAS SUBMITTED A PROPOSED DECREE.  NEBRASKA ACCEPTS IT BUT
IOWA FILED FIVE EXCEPTIONS, TO WHICH NEBRASKA REPLIED.  UPON
CONSIDERATION OF THE EXCEPTIONS IN LIGHT OF OUR OPINION AND THE REPORT
OF THE SPECIAL MASTER, IOWA'S EXCEPTIONS II AND III ARE OVERRULED AND
EXCEPTIONS I, IV, AND V ARE SUSTAINED INSOFAR AS PARAGRAPHS 11 AND 12
OF THE PROPOSED DECREE ARE REVISED IN THE FOLLOWING DECREE, THE ENTRY
OF WHICH IS DIRECTED: 

IT IS ORDERED, ADJUDGED, AND DECREED THAT: 

1.  THE MISSOURI RIVER WAS THE BOUNDARY BETWEEN THE STATES OF IOWA
AND NEBRASKA WHICH WAS SUBJECT TO THE GENERAL RULES OF ACCRETION AND
AVULSION UNTIL 1943 WHEN THE STATES DETERMINED TO AGREE BY COMPACT UPON
A PERMANENT LOCATION OF THE BOUNDARY LINE. 

2.  BY 1943 THE SHIFTS OF THE MISSOURI RIVER CHANNEL HAS BEEN SO
NUMEROUS AND INTRICATE, BOTH IN ITS NATURAL STATE AND AS A RESULT OF
THE WORK OF THE CORPS OF ENGINEERS, THAT IT WAS PRACTICALLY IMPOSSIBLE
TO LOCATE THE ORIGINAL BOUNDARY LINE BETWEEN THE STATES. 

3.  THE COMPACT BETWEEN THE STATES EFFECTIVE JULY 12, 1943, PROVIDES
IN SECTION 3 AS ADOPTED BY IOWA: 

"TITLES, MORTGAGES AND OTHER LIENS GOOD IN NEBRASKA SHALL BE GOOD IN
IOWA AS TO ANY LANDS NEBRASKA MAY CEDE TO IOWA AND ANY PENDING SUITS OR
ACTIONS CONCERNING SAID LANDS MAY BE PROSECUTED TO FINAL JUDGMENT IN
NEBRASKA AND SUCH JUDGMENT SHALL BE ACCORDED FULL FORCE AND EFFECT IN
IOWA." 

4.  UNDER SECTION 2 OF THE COMPACT, EACH STATE "CEDES" TO THE OTHER
STATE "AND RELINQUISHES JURISDICTION OVER" ALL SUCH LANDS THEN LOCATED
WITHIN THE COMPACT BOUNDARY OF THE OTHER. 

THE WORD "CEDES" IN SECTION 2 WAS MEANT BY THE STATES TO DESCRIBE
ALL AREAS FORMED BEFORE JULY 12, 1943, REGARDLESS OF THEIR LOCATION
WITH REFERENCE TO THE ORIGINAL BOUNDARY, WHOSE "TITLES, MORTGAGES AND
OTHER LIENS" WERE, AT THE DATE OF THE COMPACT, "GOOD IN" THE CEDING
STATE.  UNDER SECTION 3, THE STATE IS BOUND TO RECOGNIZE SUCH "TITLES,
MORTGAGES AND OTHER LIENS" TO BE "GOOD IN" ITS STATE, AND NOT TO CLAIM
OWNERSHIP IN ITSELF. 

5.  SECTIONS 2 AND 3 ARE NOT TO BE CONSTRUED AS RELATING ONLY TO
AREAS FORMED BEFORE JULY 12, 1943, THAT CAN BE PROVED BY CLEAR,
SATISFACTORY, AND CONVINCING EVIDENCE TO HAVE BEEN ON THE NEBRASKA SIDE
OF THE ORIGINAL BOUNDARY BEFORE THE COMPACT FIXED THE PERMANENT
BOUNDARY.  SUCH A CONSTRUCTION WOULD REQUIRE THE CLAIMANT WHO PROVES
TITLE "GOOD IN NEBRASKA" ALSO TO SHOULDER THE BURDEN OF PROVING THE
LOCATION OF THE ORIGINAL BOUNDARY BEFORE 1943, AS WELL AS PROVING THAT
THE LANDS WERE ON THE NEBRASKA SIDE OF THAT BOUNDARY WHICH WOULD BE
PLACING A BURDEN UPON THE LAND OWNER WHICH THE STATES THEMSELVES
REFUSED TO UNDERTAKE IN 1943 AND AGREED WOULD NOT BE NECESSARY. 

6.  THE STATE OF IOWA DOES NOT OWN NOTTLEMAN ISLAND AND SCHEMMEL
ISLAND.  THE PROOFS SUFFICED TO ESTABLISH TITLE "GOOD IN NEBRASKA" TO
NOTTLEMAN ISLAND WHICH WAS THE LAND INVOLVED IN THE CASE OF STATE OF
IOWA, PLAINTIFF, V. DARWIN MERRITT BABBITT, ET AL., EQUITY NO. 17433 IN
THE DISTRICT COURT FOR MILLS COUNTY, IOWA, AND TO SCHEMMEL ISLAND WHICH
WAS THE LAND INVOLVED IN THE CASE OF STATE OF IOWA, PLAINTIFF, V. HENRY
E. SCHEMMEL, ET AL., DEFENDANTS, EQUITY NO. 19765 FILED IN THE DISTRICT
COURT OF FREMONT COUNTY, IOWA, ON MARCH 26, 1963, AND THAT NOTTLEMAN
ISLAND AND SCHEMMEL ISLAND FORMED BEFORE JULY 12, 1943. 

7.  UNDER SECTION 3 OF THE COMPACT, TITLES "GOOD IN NEBRASKA"
INCLUDE PRIVATE TITLES TO RIPARIAN LANDS THAT UNDER NEBRASKA LAW,
DIFFERING FROM IOWA LAW, RUN TO THE THREAD OF THE CONTIGUOUS STREAM. 

8.  TITLES "GOOD IN NEBRASKA" ARE FOUND TO INCLUDE AND EMBRACE
TITLES OBTAINED BY TEN YEARS' OPEN, NOTORIOUS AND ADVERSE POSSESSION
UNDER CLAIM OF RIGHT WITHOUT ANY REQUIREMENT OF A RECORD TITLE OR OF
"COLOR OF TITLE." 

9.  AS TO AREAS FORMED BEFORE JULY 12, 1943, SECTIONS 2 AND 3 OF THE
COMPACT LIMIT THE STATE OF IOWA TO CONTESTING WITH PRIVATE LITIGANTS IN
STATE OR FEDERAL COURTS THE QUESTION WHETHER THE PRIVATE CLAIMANTS CAN
PROVE TITLE "GOOD IN NEBRASKA" AND WHEN PRIVATE LITIGANTS PROVE SUCH
TITLE, IOWA CANNOT INTERPOSE IOWA'S DOCTRINE OF STATE OWNERSHIP AS
DEFEATING SUCH TITLE. 

10.  IN THE PRESENTLY PENDING CASES OF STATE OF IOWA, PLAINTIFF V.
DARWIN MERRITT BABBITT, ET AL., EQUITY NO. 17433, (DISTRICT COURT OF
MILLS COUNTY IOWA), AND STATE OF IOWA, PLAINTIFF V. HENRY E. SCHEMMEL,
ET AL., EQUITY NO. 19765, (DISTRICT COURT OF FREMONT COUNTY, IOWA), IT
HAVING BEEN PROVED THAT THERE ARE TITLES "GOOD IN NEBRASKA" AS TO THOSE
ISLANDS, THERE IS NO REASON FOR AN INJUNCTION AGAINST IOWA, ITS
OFFICERS, AGENTS AND SERVANTS, AT THIS STAGE, UNLESS IT BE SHOWN THAT
THE STATE OF IOWA WILL NOT ABIDE BY THIS DETERMINATION OF THE ISSUES AS
EMBODIED IN OUR OPINION OF APRIL 24, 1972. 

11.  GENERALLY, OWNERSHIP OF THE TWENTY-ONE AREAS AND PART OF THE
TWENTY-SECOND AREA NORTH OF OMAHA-- CLAIMED BY IOWA TO BE STATE OWNED
BY IOWA BECAUSE ALLEGEDLY FORMED WHOLLY ON THE IOWA SIDE OF THE COMPACT
BOUNDARY AFTER THE COMPACT DATE-- SHALL BE DETERMINED BY THE LAW OF THE
STATE IN WHICH THEY ARE FOUND TO HAVE FORMED, THE COMPACT BOUNDARY
BEING THE LINE WHICH SHALL DETERMINE IN WHICH STATE THEY FORMED. 
CLAIMANTS OF TITLE TO THESE AREAS AS AGAINST IOWA MAY HAVE THE
OPPORTUNITY TO SHOW TITLE "GOOD IN NEBRASKA" ON THE COMPACT DATE. 

12.  ALTHOUGH UNDER THE NEBRASKA LAW OF ACCRETION PRIVATE TITLES TO
RIPARIAN LANDS RUN TO THE THREAD OF THE CONTIGUOUS STREAM, WHETHER A
NEBRASKA RIPARIAN OWNER HAS TITLE TO THE ACCRETIONS THAT CROSS THE
BOUNDARY INTO IOWA IS DETERMINED BY IOWA LAW. 

13.  THE COUNTERCLAIM OF IOWA IS DISMISSED. 

14.  THE PARTIES HAVING PAID THEIR OWN COSTS AND HAVING CONTRIBUTED
EQUALLY TO A FUND FOR EXPENSES OF THE SPECIAL MASTER, ANY AMOUNTS
REMAINING IN SAID FUND AFTER DEDUCTION OF ALL EXPENSES BY THE SPECIAL
MASTER SHALL BE DIVIDED EQUALLY AND RETURNED TO EACH STATE BY THE
SPECIAL MASTER. 

     IT IS SO ORDERED. 
..END :















EVANSVILLE AIRPORT V. DELTA AIRLINES, 405 U.S. 707 


       EVANSVILLE-VANDERBURGH AIRPORT AUTHORITY DISTRICT ET AL. V.

           DELTA AIRLINES, INC., ET AL.

 CERTIORARI TO THE SUPREME COURT OF INDIANA

        NO. 70-99.  ARGUED FEBRUARY 23-24, 1972-- DECIDED APRIL 19,

       1972  /0/ 


IN NO. 70-99 RESPONDENTS CHALLENGED A "USE AND SERVICE CHARGE" OF $1
"FOR EACH PASSENGER ENPLANING ANY COMMERCIAL AIRCRAFT OPERATED FROM THE
DRESS MEMORIAL AIRPORT" IN EVANSVILLE, INDIANA.  THE FUNDS WERE TO BE
USED FOR THE IMPROVEMENT AND MAINTENACE OF THE AIRPORT.  THE INDIANA
SUPREME COURT, UPHOLDING THE LOWER COURT, HELD THE CHARGE TO BE AN
UNREASONABLE BURDEN ON INTERSTATE COMMERCE IN VIOLATION OF ART. I, SEC.
8, OF THE CONSTITUTION.  IN NO. 70-212 A NEW HAMPSIRE STATUTE LEVIED A
SERVICE CHARGE OF $1 FOR EACH PASSENGER ENPLANING A SCHEDULED
COMMERCIAL AIRLINER WEIGHING 12,500 POUNDS OR MORE, AND A 50[ CHARGE
FOR EACH PASSENGER ENPLANING A SCHEDULED AIRCRAFT WEIGHING LESS THAN
12,500 POUNDS.  FIFTY PERCENT OF THE FUNDS WERE ALLOCATED TO THE
STATE'S AERONAUTICAL FUND, WITH THE BALANCE GOING TO THE MUNICIPALITIES
OR AIRPORT AUTHORITIES OWNING THE PUBLIC LANDING AREAS.  THE NEW
HAMPSHIRE SUPREME COURT SUSTAINED THE CONSTITUTIONALITY OF THE
STATUTE.  HELD:  THE CHARGES IMPOSED IN THESE CASES ARE
CONSTITUTIONAL.  PP. 711-722. 

(A) A CHARGE DESIGNED TO MAKE THE USER OF STATE-PROVIDED FACILITIES
PAY A REASONABLE FEE FOR THEIR CONSTRUCTION AND MAINTENANCE MAY
CONSTITUTIONALLY BE IMPOSED ON INTERSTATE AND INTRASTATE USERS ALIKE. 
CRANDALL V. NEVADA, 6 WALL.  35, DISTINGUISHED.  PP. 711-717. 

(B) THE CHARGES, APPLICABLE TO BOTH INTERSTATE AND INTRASTATE
FLIGHTS, DO NOT DISCRIMINATE AGAINST INTERSTATE COMMERCE AND TRAVEL. 
P. 717. 

(C) ALTHOUGH NOT ALL USERS OF THE AIRPORT FACILITIES ARE SUBJECT TO
THE FEES, AND THERE ARE DISTINCTIONS AMONG DIFFERENT CLASSES OF
PASSENGERS AND AIRCRAFT, THE CHARGES REFLECT A FAIR, ALBEIT IMPERFECT,
APPROXIMATION OF THE USE OF THE FACILITIES BY THOSE FOR WHOSE BENEFIT
THEY ARE IMPOSED, AND THE EXEMPTIONS ARE NOT WHOLLY UNREASONABLE.  PP.
717-179. 

(D) THE AIRLINES HAVE NOT SHOWN THE CHARGES TO BE EXCESSIVE IN
RELATION TO THE COSTS INCURRED BY THE TAXING AUTHORITIES IN
CONSTRUCTING AND MAINTAINING AIRPORTS WITH PUBLIC FUNDS.  NEW
HAMPSHIRE'S DECISION TO REIMBURSE LOCAL EXPENDITURES THROUGH
UNRESTRICTED REVENUES IS NOT A MATTER OF CONCERN TO THE AIRLINES.  PP.
719-720. 

(E) THE CHARGES DO NOT CONFLICT WITH ANY FEDERAL POLICIES FURTHERING
UNIFORM NATIONAL REGULATION OF AIR TRANSPORTATION.  PP. 720-721. 

(F) THERE IS NO SUGGESTION HERE THAT THE CHARGES DO NOT ADVANCE THE
CONSTITUTIONALLY PERMISSIBLE OBJECTIVE OF HAVING INTERSTATE COMMERCE
BEAR A FAIR SHARE OF AIRPORT COSTS.  P. 722. 

NO. 70-99,-- IND.-- , 265 N.E.2D 27, REVERSED; NO. 70-212, 111 N.H.
5, 273 A.2D 676, AFFIRMED. 

BRENNAN J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, MARSHALL, BLACKMUN, AND REHNQUIST, JJ.,
JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 722. 
POWELL, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASES. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER A CHARGE BY A STATE OR MUNICIPALITY OF $1 PER
COMMERCIAL AIRLINE PASSENGER TO HELP DEFRAY THE COSTS OF AIRPORT
CONSTRUCTION AND MAINTENANCE VIOLATES THE FEDERAL CONSTITUTION.  OUR
ANSWER IS THAT, AS IMPOSED IN THESE TWO CASES, THE CHARGE DOES NOT
VIOLATE THE FEDERAL CONSTITUTION. 

NO. 70-99.  EVANSVILLE-VANDERBURGH AIRPORT AUTHORITY DISTRICT WAS
CREATED BY THE INDIANA LEGISLATURE TO OPERATE DRESS MEMORIAL AIRPORT IN
EVANSVILLE, INDIANA.  UNDER ITS AUTHORITY TO ENACT ORDINANCES ADOPTING
RATES AND CHARGES TO BE COLLECTED FROM USERS OF THE AIRPORT FACILITIES
AND SERVICES, THE AIRPORT AUTHORITY ENACTED ORDINANCE NO. 33
ESTABLISHING "A USE AND SERVICE CHARGE OF ONE DOLLAR ($1.00) FOR EACH
PASSENGER ENPLANING ANY COMMERCIAL AIRCRAFT OPERATED FROM THE DRESS
MEMORIAL AIRPORT."  THE COMMERCIAL AIRLINES ARE REQUIRED TO COLLECT AND
REMIT THE CHARGE, LESS 6% ALLOWED TO COVER THE AIRLINES' ADMINISTRATIVE
COSTS IN DOING SO.  THE MONEYS COLLECTED ARE HELD BY THE AIRPORT
AUTHORITY "IN A SEPARATE FUND FOR THE PURPOSE OF DEFRAYING THE PRESENT
AND FUTURE COSTS INCURRED BY SAID AIRPORT AUTHORITY IN THE
CONSTRUCTION, IMPROVEMENT, EQUIPMENT, AND MAINTENANCE OF SAID AIRPORT
AND ITS FACILITIES FOR THE CONTINUED USE AND FUTURE ENJOYMENT BY ALL
USERS THEREOF." 

RESPONDENTS CHALLENGED THE CONSTITUTIONALITY OF THE CHARGE IN AN
ACTION FILED IN THE SUPERIOR COURT OF VANDERBURGH COUNTY, INDIANA.  THE
COURT HELD THAT THE CHARGE CONSTITUTED AN UNREASONABLE BURDEN ON
INTERSTATE COMMERCE IN VIOLATION OF ART. I, SEC. 8, OF THE FEDERAL
CONSTITUTION AND PERMANENTLY ENJOINED ENFORCEMENT OF THE ORDINANCE. 
THE INDIANA SUPREME COURT AFFIRMED, -- IND.-- , 265 N.E.2D 27 (1970). 
WE GRANTED CERTIORARI, 404 U.S. 820 (1971).  WE REVERSE. 

NO. 70-212.  CHAPTER 391 OF THE 1969 LAWS OF NEW HAMPSHIRE, AMENDING
N.H. REV. STAT. ANN. SEC.S. 422:3, 422:43, 422:45, REQUIRES EVERY
INTERSTATE AND INTRASTATE "COMMON CARRIER OF PASSENGERS FOR HIRE BY
AIRCRAFT ON A REGULAR SCHEDULE" THAT USES ANY OF NEW HAMPSHIRE'S FIVE
PUBLICLY OWNED AND OPERATED AIRPORTS TO "PAY A SERVICE CHARGE OF ONE
DOLLAR WITH RESPECT TO EACH PASSENGER EMPLANING /1/  UPON ITS AIRCRAFT
WITH A GROSS WEIGHT OF 12,500 POUNDS OR MORE, OR A SERVICE CHARGE OF
FIFTY CENTS WITH RESPECT TO EACH PASSENGER EMPLANING UPON ITS AIRCRAFT
WITH A GROSS WEIGHT OF LESS THAN 12,500 POUNDS."  FIFTY PERCENT OF THE
MONEYS COLLECTED ARE ALLOCATED TO THE STATE'S AERONAUTICAL FUND AND 50%
"TO THE MUNICIPALITIES OR THE AIRPORT AUTHORITIES OWNING THE PUBLIC
LANDING AREAS AT WHICH THE FEES . . . WERE IMPOSED."  THE AIRLINES ARE
AUTHORIZED TO PASS ON THE CHARGE TO THE PASSENGER.  /2/ 

APPELLANTS BROUGHT THIS ACTION IN THE SUPERIOR COURT OF MERRIMACK
COUNTY, NEW HAMPSHIRE, AND CHALLENGED THE CONSTITUTIONALITY OF THE
CHARGE AS TO SCHEDULED COMMERCIAL FLIGHTS ON THE GROUNDS OF REPUGNANCY
TO THE COMMERCE CLAUSE, THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, AND THE PROVISIONS OF THE FEDERAL CONSTITUTION PROTECTING
THE RIGHT TO TRAVEL.  THE SUPERIOR COURT, WITHOUT DECISION, TRANSFERRED
THE ACTION TO THE NEW HAMPSHIRE SUPREME COURT, AND THAT COURT SUSTAINED
THE CONSTITUTIONALITY OF THE STATUTE.  111 N.H. 5, 273 A.2D 676
(1971).  WE NOTED PROBABLE JURISDICTION, 404 U.S. 819 (1971).  /3/  WE
AFFIRM. 

WE BEING OUR ANALYSIS WITH CONSIDERATION OF THE CONTENTION OF THE
COMMERCIAL AIRLINES IN BOTH CASES THAT THE CHARGE IS CONSTITUTIONALLY
INVALID UNDER THE COURT'S DECISION IN CRANDALL V. NEVADA, 6 WALL.  35
(1868).  THERE THE COURT INVALIDATED A NEVADA STATUTE THAT LEVIED A
"TAX OF ONE DOLLAR UPON EVERY PERSON LEAVING THE STATE BY ANY RAILROAD,
STAGE COACH, OR OTHER VEHICLE ENGAGED OR EMPLOYED IN THE BUSINESS OF
TRANSPORTING PASSENGERS FOR HIRE."  THE COURT APPROACHED THE PROBLEM AS
ONE OF WHETHER LEVY OF "ANY TAX OF THAT CHARACTER," WHATEVER ITS
AMOUNT, IMPERMISSIBLY BURDENED THE CONSTITUTIONALLY PROTECTED RIGHT OF
CITIZENS TO TRAVEL.  IN HOLDING THAT IT DID, THE COURT REASONED:

"(IF THE STATE CAN TAX A RAILROAD PASSENGER ONE DOLLAR, IT CAN TAX
HIM ONE THOUSAND DOLLARS.  IF ONE STATE CAN DO THIS, SO CAN EVERY OTHER
STATE.  AND THUS ONE OR MORE STATES COVERING THE ONLY PRACTICABLE
ROUTES OF TRAVEL FROM THE EAST TO THE WEST, OR FROM THE NORTH TO THE
SOUTH, MAY TOTALLY PREVENT OR SERIOUSLY BURDEN ALL TRANSPORTATION OF
PASSENGERS FROM ONE PART OF THE COUNTRY TO THE OTHER."  ID., AT 46. 
/4/ 

THE NEVADA CHARGE, HOWEVER, WAS NOT LIMITED, AS ARE THE INDIANA AND
NEW HAMPSHIRE CHARGES BEFORE US, TO TRAVELERS ASKED TO BEAR A FAIR
SHARE OF THE COSTS OF PROVIDING PUBLIC FACILITIES THAT FURTHER TRAVEL. 
THE NEVADA TAX APPLIED TO PASSENGERS TRAVELING INTERSTATE BY PRIVATELY
OWNED TRANSPORTATION, SUCH AS RAILROADS.  THUS THE TAX WAS CHARGED
WITHOUT REGARD TO WHETHER NEVADA PROVIDED ANY FACILITIES FOR THE
PASSENGERS REQUIRED TO PAY THE TAX.  CASES DECIDED SINCE CRANDALL HAVE
DISTINGUISHED IT ON THAT GROUND AND HAVE SUSTAINED TAXES "DESIGNED TO
MAKE (INTERSTATE) COMMERCE BEAR A FAIR SHARE OF THE COST OF THE LOCAL
GOVERNMENT WHOSE PROTECTION IT ENJOYS."  FREEMAN V. HEWIT, 329 U.S.
249, 253 (1946).  /5/  FOR EXAMPLE, IN HENDRICK V. MARYLAND, 235 U.S.
610 (1915), A DISTRICT OF COLUMBIA RESIDENT WAS CONVICTED OF DRIVING IN
MARYLAND WITHOUT PAYING A FEE CHARGED TO HELP DEFRAY THE COSTS OF ROAD
CONSTRUCTION AND REPAIR.  HE CHALLENGED HIS CONVICTION ON THE GROUND
THAT THE FEE BURDENED INTERSTATE COMMERCE IN VIOLATION OF THE RIGHTS OF
CITIZENS TO TRAVEL INTO AND THROUGH THE STATE.  THE COURT REJECTED THAT
ARGUMENT, HOLDING THAT: 

"(WHERE A STATE AT ITS OWN EXPENSE FURNISHED SPECIAL FACILITIES FOR
THE USE OF THOSE ENGAGED IN COMMERCE, INTERSTATE AS WELL AS DOMESTIC,
IT MAY EXACT COMPENSATION THEREFOR.  THE AMOUNT OF THE CHARGES AND THE
METHOD OF COLLECTION ARE PRIMARILY FOR DETERMINATION BY THE STATE
ITSELF; AND SO LONG AS THEY ARE REASONABLE AND ARE FIXED ACCORDING TO
SOME UNIFORM, FAIR AND PRACTICAL STANDARD THEY CONSTITUTE NO BURDEN ON
INTERSTATE COMMERCE.  TRANSPORTATION CO. V. PARKERSBURG, 107 U.S. 691,
699; HUSE V. GLOVER, 119 U.S. 543, 548, 549; MONONGAHELA NAVIGATION CO.
V. UNITED STATES, 148 U.S. 312, 329, 330; MINNESOTA RATE CASES, 230
U.S. 352, 405; AND AUTHORITIES CITED.  THE ACTION OF THE STATE MUST BE
TREATED AS CORRECT UNLESS THE CONTRARY IS MADE TO APPEAR.  IN THE
INSTANT CASE THERE IS NO EVIDENCE CONCERNING THE VALUE OF THE
FACILITIES SUPPLIED BY THE STATE, THE COST OF MAINTAINING THEM, OR THE
FAIRNESS OF THE METHODS ADOPTED FOR COLLECTING THE CHARGES IMPOSED; AND
WE CANNOT SAY FROM A MERE INSPECTION OF THE STATUTE THAT ITS PROVISIONS
ARE ARBITRARY OR UNREASONABLE."  ID., AT 624.  THE COURT EXPRESSLY
DISTINGUISHED CRANDALL, SAYING: 

     "THERE IS NO SOLID FOUNDATION FOR THE CLAIM THAT THE STATUTE

  DIRECTLY INTERFERES WITH THE RIGHTS OF CITIZENS OF THE UNITED

  STATES TO PASS THROUGH THE STATE, AND IS CONSEQUENTLY BAD

  ACCORDING TO THE DOCTRINE ANNOUNCED IN CRANDALL V. NEVADA, 6

  WALL.  35.  IN THAT CASE A DIRECT TAX WAS LAID UPON THE PASSENGER

  FOR THE PRIVILEGE OF LEAVING THE STATE; WHILE HERE THE STATUTE AT

  MOST ATTEMPTS TO REGULATE THE OPERATION OF DANGEROUS MACHINES ON

  THE HIGHWAYS AND TO CHARGE FOR THE USE OF VALUABLE FACILITIES." 

  IBID.  /6/ 

WE THEREFORE REGARD IT AS SETTLED THAT A CHARGE DESIGNED ONLY TO
MAKE THE USER OF STATE-PROVIDED FACILITIES PAY A REASONABLE FEE TO HELP
DEFRAY THE COSTS OF THEIR CONSTRUCTION AND MAINTENANCE MAY
CONSTITUTIONALLY BE IMPOSED ON INTERSTATE AND DOMESTIC USERS ALIKE. 
THE PRINCIPLE THAT BURDENS ON THE RIGHT TO TRAVEL ARE CONSTITUTIONAL
ONLY IF SHOWN TO BE NECESSARY TO PROMOTE A COMPELLING STATE INTEREST
HAS NO APPLICATION IN THIS CONTEXT.  SEE SHAPIRO V. THOMPSON, 394 U.S.
618 (1969).  THE FACILITY PROVIDED AT PUBLIC EXPENSE AIDS RATHER THAN
HINDERS THE RIGHT TO TRAVEL.  A PERMISSIBLE CHARGE TO HELP DEFRAY THE
COST OF THE FACILITY IS THEREFORE NOT A BURDEN IN THE CONSTITUTIONAL
SENSE. 

THE INDIANA AND NEW HAMPSHIRE SUPREME COURTS DIFFERED IN APPRAISING
THEIR RESPECTIVE CHARGES IN TERMS OF WHETHER THE CHARGE WAS FOR THE USE
OF FACILITIES IN AID OF TRAVEL PROVIDED BY THE PUBLIC.  THE INDIANA
SUPREME COURT HELD THAT THE EVANSVILLE CHARGE "IS NOT REASONABLY
RELATED TO THE USE OF THE FACILITIES WHICH BENEFIT FROM THE TAX . . . .
"  -- IND.,AT -- , 265 N.E.2D, AT 31.  THE NEW HAMPSHIRE CHARGE WAS A
"FEE FOR THE USE OF FACILITIES FURNISHED BY THE PUBLIC" THAT DID NOT
"EXCEED REASONABLE COMPENSATION FOR THE USE PROVIDED."  11 N.H.,AT 9,
273 A.2D, AT 678, 679. 

IN ADDRESSING THE QUESTION, WE DO NOT THINK IT PARTICULARLY
IMPORTANT WHETHER THE CHARGE IS IMPOSED ON THE PASSENGER HIMSELF, TO BE
COLLECTED BY THE AIRLINE, OR ON THE AIRLINE, TO BE PASSED ON TO THE
PASSENGER IF IT CHOOSES.  IN EITHER CASE, IT IS THE ACT OF ENPLANEMENT
AND THE CONSEQUENT USE OF RUNWAYS AND OTHER AIRPORT FACILITIES THAT
GIVE RISE TO THE OBLIGATION.  OUR INQUIRY IS WHETHER THE USE OF AIRPORT
FACILITIES OCCASIONED BY ENPLANEMENT IS A PERMISSIBLE INCIDENT ON WHICH
TO LEVY THESE FEES, REGARDLESS OF WHETHER THE AIRLINE OR ITS PASSENGERS
BEAR THE FORMAL RESPONSIBILITY FOR THEIR PAYMENT. 

OUR DECISIONS CONCERNING HIGHWAY TOLLS ARE INSTRUCTIVE.  THEY
ESTABLISH THAT THE STATES ARE EMPOWERED TO DEVELOP "UNIFORM, FAIR AND
PRACTICAL" STANDARDS FOR THIS TYPE OF FEE.  WHILE THE COURT HAS
INVALIDATED AS WHOLLY UNRELATED TO ROAD USE A TOLL BASED ON THE
CARRIER'S SEATING CAPACITY, INTERSTATE TRANSIT, INC. V. LINDSEY, 283
U.S. 183 (1931); SPROUT V. SOUTH BEND, 277 U.S. 163 (1928), AND THE
AMOUNT OF GASOLINE OVER 20 GALLONS IN THE CARRIER'S GAS TANK, MCCARROLL
V. DIXIE GREYHOUND LINES, INC., 309 U.S. 176 (1940), WE HAVE SUSTAINED
NUMEROUS TOLLS BASED ON A VARIETY OF MEASURES OF ACTUAL USE, INCLUDING:
HORSEPOWER, HENDRICK V. MARYLAND, SUPRA; KANE V. NEW JERSEY, 242 U.S,
160 (1916); NUMBER AND CAPACITY OF VEHICLES, CLARK V. POOR, 274 U.S.
554 (1927); MILEAGE WITHIN THE STATE, INTERSTATE BUSSES CORP. V.
BLODGETT, 276 U.S. 245 (1928); GROSS-TON MILEAGE, CONTINENTAL BAKING
CO. V. WOODRING, 286 U.S. 352 (1932); CARRYING CAPACITY, HICKLIN V.
CONEY, 290 U.S. 169 (1933); AND MANUFACTURER'S RATED CAPACITY AND
WEIGHT OF TRAILERS, DIXIE OHIO EXPRESS CO. V. STATE REVENUE COMM'N, 306
U.S. 72 (1939). 

WE HAVE ALSO HELD THAT A STATE MAY IMPOSE A FLAT FEE FOR THE
PRIVILEGE OF USING ITS ROADS, WITHOUT REGARD TO THE ACTUAL USE BY
PARTICULAR VEHICLES, SO LONG AS THE FEE IS NOT EXCESSIVE.  AERO
MAYFLOWER TRANSIT CO. V. GEORGIA PUBLIC SERVICE COMM'N, 295 U.S. 285
(1935); MORF V. BINGAMAN, 298 U.S. 407 (1936); AERO MAYFLOWER TRANSIT
CO. V. BOARD OF RAILROAD COMM'RS, 332 U.S. 495 (1947).  AND IN CAPITOL
GREYHOUND LINES V. BRICE, 339 U.S. 542 (1950), THE COURT SUSTAINED A
MARYLAND HIGHWAY TOLL OF "2% UPON THE FAIR MARKET VALUE OF MOTOR
VEHICLES USED IN INTERSTATE COMMERCE."  THAT TOLL WAS SUPPLEMENTAL TO A
STANDARD MILEAGE CHARGE IMPOSED BY THE STATE, SO THAT "THE TOTAL CHARGE
AS AMONG CARRIERS (DID) VARY SUBSTANTIALLY WITH THE MILEAGE TRAVELED." 
ID., AT 546.  IT WAS THERE ARGUED, HOWEVER, THAT THE CORRELATION
BETWEEN TAX AND USE WAS NOT PRECISE ENOUGH TO SUSTAIN THE TOLL AS A
VALID USER CHARGE.  NOTING THAT THE TAX "SHOULD BE JUDGED BY ITS
RESULT, NOT ITS FORMULA, AND MUST STAND UNLESS PROVEN TO BE
UNREASONABLE IN AMOUNT FOR THE PRIVILEGE GRANTED," ID., AT 545, THE
COURT REJECTED THE ARGUMENT: 

"COMPLETE FAIRNESS WOULD REQUIRE THAT A STATE TAX FORMULA VARY WITH
EVERY FACTOR AFFECTING APPROPRIATE COMPENSATION FOR GOOD ROAD USE. 
THESE FACTORS, LIKE THOSE RELEVANT IN CONSIDERING THE CONSTITUTIONALITY
OF OTHER STATE TAXES, ARE SO COUNTLESS THAT WE MUST BE CONTENT WITH
'ROUGH APPROXIMATION RATHER THAN PRECISION.'  HARVESTER CO. V. EVATT,
329 U.S. 416, 422-423.  EACH ADDITIONAL FACTORS ADDS TO ADMINISTRATIVE
BURDENS OF ENFORCEMENT, WHICH FALL ALIKE ON TAXPAYERS AND GOVERNMENT. 
WE HAVE RECOGNIZED THAT SUCH BURDENS MAY BE SUFFICIENT TO JUSTIFY
STATES IN IGNORING EVEN SUCH A KEY FACTOR AS MILEAGE, ALTHOUGH THE
RESULT MAY BE A TAX WHICH ON ITS FACE APPEARS TO BEAR WITH UNEQUAL
WEIGHT UPON DIFFERENT CARRIERS.  AERO TRANSIT CO. V. GEORGIA COMM'N,
295 U.S. 285, 289.  UPON THIS TYPE OF REASONING RESTS OUR GENERAL RULE
THAT TAXES LIKE THAT OF MARYLAND HERE ARE VALID UNLESS THE AMOUNT IS
SHOWN TO BE IN EXCESS OF FAIR COMPENSATION FOR THE PRIVILEGE OF USING
STATE ROADS."  ID., AT 546 547. 

THUS, WHILE STATE OR LOCAL TOLLS MUST REFLECT A "UNIFORM, FAIR AND
PRACTICAL STANDARD" RELATING TO PUBLIC EXPENDITURES, IT IS THE AMOUNT
OF THE TAX, NOT ITS FORMULA, THAT IS OF CENTRAL CONCERN.  AT LEAST SO
LONG AS THE TOLL IS BASED ON SOME FAIR APPROXIMATION OF USE OR
PRIVILEGE FOR USE, AS WAS THAT BEFORE US IN CAPITOL GREYHOUND, AND IS
NEITHER DISCRIMINATORY AGAINST INTERSTATE COMMERCE NOR EXCESSIVE IN
COMPARISON WITH THE GOVERNMENTAL BENEFIT CONFERRED, IT WILL PASS
CONSTITUTIONAL MUSTER, EVEN THOUGH SOME OTHER FORMULA MIGHT REFLECT
MORE EXACTLY THE RELATIVE USE OF THE STATE FACILITIES BY INDIVIDUAL
USERS. 

THE INDIANA AND NEW HAMPSHIRE CHARGES MEET THOSE STANDARDS.  FIRST,
NEITHER FEE DISCRIMINATES AGAINST INTERSTATE COMMERCE AND TRAVEL. 
WHILE THE VAST MAJORITY OF PASSENGERS WHO BOARD FLIGHTS AT THE AIRPORTS
INVOLVED ARE TRAVELING INTERSTATE, BOTH INTERSTATE AND INTRASTATE
FLIGHTS ARE SUBJECT TO THE SAME CHARGES.  FURTHERMORE, THERE IS NO
SHOWING OF ANY INHERENT DIFFERENCE BETWEEN THESE TWO CLASSES OF
FLIGHTS, SUCH THAT THE APPLICATION OF THE SAME FEE TO BOTH WOULD AMOUNT
TO DISCRIMINATION AGAINST ONE OR THE OTHER.  SEE NIPPERT V. RICHMOND,
327 U.S. 416, (1946).     SECOND, THESE CHARGES REFLECT A FAIR, IF
IMPERFECT, APPROXIMATION OF THE USE OF FACILITIES FOR WHOSE BENEFIT
THEY ARE IMPOSED.  WE RECOGNIZE THAT IN IMPOSING A FEE ON THE BOARDING
OF COMMERCIAL FLIGHTS, BOTH THE INDIANA AND NEW HAMPSHIRE MEASURES
EXEMPT IN WHOLE OR PART A MAJORITY OF THE ACTUAL NUMBER OF PERSONS WHO
USE FACILITIES OF THE AIRPORTS INVOLVED.  THEIR NUMBER INCLUDES CERTAIN
CLASSES OF PASSENGERS, SUCH AS ACTIVE MEMBERS OF THE MILITARY AND
TEMPORARY LAYOVERS, /7/  DEPLANING COMMERCIAL PASSENGERS, /8/  AND
PASSENGERS ON NONCOMMERCIAL FLIGHTS, /9/  NONSCHEDULED COMMERCIAL
FLIGHTS, /10/ AND COMMERCIAL FLIGHTS ON LIGHT AIRCRAFT.  /11/  ALSO
EXEMPT ARE NONPASSENGER USERS, SUCH AS PERSONS DELIVERING OR RECEIVING
AIR-FREIGHT SHIPMENTS, MEETING OR SEEING OFF PASSENGERS, DINING AT
AIRPORT RESTAURANTS, AND WORKING FOR EMPLOYERS LOCATED ON AIRPORT
GROUNDS.  NEVERTHELESS, THESE EXCEPTIONS ARE NOT WHOLLY UNREASONABLE. 
CERTAINLY PASSENGERS AS A CLASS MAY BE DISTINGUISHED FROM OTHER AIRPORT
USERS, IF ONLY BECAUSE THE BOARDING OF FLIGHTS REQUIRES THE USE OF
RUNWAYS AND NAVIGATIONAL FACILITIES NOT OCCASIONED BY NONFLIGHT
ACTIVITIES.  FURTHERMORE, BUSINESS USERS, LIKE SHOPS, RESTAURANTS, AND
PRIVATE PARKING CONCESSIONS, DO CONTRIBUTE TO AIRPORT UPKEEP THROUGH
RENT, A COST THAT IS PASSED ON IN PART AT LEAST TO THEIR PATRONS.  AND
SINCE THE VISITOR WHO MERELY SEES OFF OR MEETS A PASSENGER CONFERS A
BENEFIT ON THE PASSENGER HIMSELF, HIS USE OF THE TERMINAL MAY
REASONABLY BE CONSIDERED TO BE INCLUDED IN THE PASSENGER'S FEE. 

THE MEASURES BEFORE US ALSO REFLECT RATIONAL DISTINCTIONS AMONG
DIFFERENT CLASSES OF PASSENGERS AND AIRCRAFT.  COMMERCIAL AIR TRAFFIC
REQUIRES MORE ELABORATE NAVIGATION AND TERMINAL FACILITIES, AS WELL AS
LONGER AND MORE COSTLY RUNWAY SYSTEMS, THAN DO FLIGHTS BY SMALLER
PRIVATE PLANES.  /12/  COMMERCIAL AVIATION, THEREFORE, MAY BE MADE TO
BEAR A LARGER SHARE OF THE COST OF FACILITIES BUILT PRIMARILY TO MEET
ITS SPECIAL NEEDS, WHETHER THAT ADDITIONAL CHARGE IS LEVIED ON A PER
FLIGHT BASIS IN THE FORM OF HIGHER TAKEOFF AND LANDING FEES, OR AS A
TOLL PER PASSENGER-USE IN THE FORM OF A BOARDING FEE.  IN SHORT,
DISTINCTIONS BASED ON AIRCRAFT WEIGHT OR COMMERCIAL VERSUS PRIVATE USE
DO NOT RENDER THESE CHARGES WHOLLY IRRATIONAL AS A MEASURE OF THE
RELATIVE USE OF THE FACILITIES FOR WHOSE BENEFIT THEY ARE LEVIED.  NOR
DOES THE FACT THAT THEY ARE LEVIED ON THE ENPLANEMENT OF COMMERCIAL
FLIGHTS, BUT NOT DEPLANEMENT.  IT IS NOT UNREASONABLE TO PRESUME THAT
PASSENGERS ENPLANING AT AN AIRPORT ALSO DEPLANE AT THE SAME AIRPORT
APPROXIMATELY THE SAME NUMBER OF TIMES.  THE PARTIES IN NO. 70-99, FOR
EXAMPLE, HAVE STIPULATED THAT THE NUMBER OF PASSENGERS ENPLANING AND
DEPLANING AT DRESS MEMORIAL AIRPORT IN 1967 WAS VIRTUALLY THE SAME. 
THUS, A FEE LEVIED ONLY ON THE BOARDING OF COMMERCIAL AIRCRAFT CAN
REASONABLY BE SUPPOSED TO COVER A CHARGE ON USE BY PASSENGERS WHEN THEY
DEPLANE.  /13/ 

THIRD, THE AIRLINES HAVE NOT SHOWN THESE FEES TO BE EXCESSIVE IN
RELATION TO COSTS INCURRED BY THE TAXING AUTHORITIES.  THE RECORD IN
NO. 70-99 SHOWS THAT IN 1965 THE EVANSVILLE-VANDERBURGH AIRPORT
AUTHORITY PAID BOND RETIREMENT COSTS OF $166,000 FOR CAPITAL
IMPROVEMENTS AT DRESS MEMORIAL AIRPORT, BUT RECOVERED ONLY $9,700 OF
THESE COSTS IN THE FORM OF AIRPORT REVENUE.  THE AIRPORT'S REVENUES
COVERED ONLY $63,000 OF THE AUTHORITY'S $184,000 BOND COSTS IN 1966,
$87,000 OF $182,000 IN 1967, AND $65,000 OF $178,000 IN 1968.  THE
RESPONDENTS IN NO. 70-99 HAVE ADVANCED NO EVIDENCE THAT A $1 BOARDING
FEE, IF PERMITTED TO GO INTO EFFECT, WOULD DO MORE THAN MEET THESE
PAST, AS WELL AS CURRENT, DEFICITS.  APPELLANTS IN NO. 70-212 HAVE
LIKEWISE FAILED TO OFFER PROOF OF EXCESSIVENESS. 

THIS OMISSION IN NO. 70-212 SUFFICES TO DISPOSE OF THE FINAL ATTACK
BY APPELLANTS IN THAT CASE ON THE NEW HAMPSHIRE STATUTE.  APPELLANTS
ARGUE THAT THE STATUTE "ON ITS FACE BELIES ANY LEGISLATUVE INTENT TO
IMPOSE AN EXACTION BASED SOLELY ON USE" BECAUSE ONLY 50% OF ITS REVENUE
IS ALLOCATED TO THE STATE AERONAUTICAL FUND WHILE "THE REMAINING FIFTY
PER CENT IS ALLOCATED TO THE MUNICIPALITIES OR AIRPORT AUTHORITIES
OWNING THE LANDING AREAS AT WHICH THE FEES WERE IMPOSED IN THE FORM OF
UNRESTRICTED GENERAL REVENUES."  BRIEF 51-52.  YET SO LONG AS THE FUNDS
RECEIVED BY LOCAL AUTHORITIES UNDER THE STATUTE ARE NOT SHOWN TO EXCEED
THEIR AIRPORT COSTS, IT IS IMMATERIAL WHETHER THOSE FUNDS ARE EXPRESSLY
EARMARKED FOR AIRPORT USE.  THE STATE'S CHOICE TO REIMBURSE LOCAL
EXPENDITURES THROUGH UNRESTRICTED RATHER THAN RESTRICTED REVENUES IS
NOT A MATTER OF CONCERN TO THESE APPELLANTS.  SEE CLARK V. POOR, 274
U.S.,AT 557; MORF V; BINGAMAN, 298 U.S.,AT 412; AERO MAYFLOWER TRANSIT
CO. V. BOARD OF RAILROAD COMM'RS, 332 U.S.,AT 502-505. 

WE CONCLUDE, THEREFORE, THAT THE PROVISIONS BEFORE US IMPOSE VALID
CHARGES ON THE USE OF AIRPORT FACILITIES CONSTRUCTED AND MAINTAINED
WITH PUBLIC FUNDS.  FURTHERMORE, WE DO NOT THINK THAT THEY CONFLICT
WITH ANY FEDERAL POLICIES FURTHERING UNIFORM NATIONAL REGULATION OF AIR
TRANSPORTATION.  NO FEDERAL STATUTE OR SPECIFIC CONGRESSIONAL ACTION OR
DECLARATION EVIDENCES A CONGRESSIONAL PURPOSE TO DENY OR PRE-EMPT STATE
AND LOCAL POWER TO LEVY CHARGES DESIGNED TO HELP DEFRAY THE COSTS OF
AIRPORT CONSTRUCTION AND MAINTENANCE.  A CONTRARY PURPOSE IS EVIDENCE
IN THE AIRPORT AND AIRWAY DEVELOPMENT ACT OF 1970, 84 STAT. 219, 49
U.S.C. 1701 ET SEQ. THAT ACT PROVIDES THAT AS "A CONDITION PRECEDENT TO
HIS APPROVAL OF AN AIRPORT DEVELOPMENT PROJECT," THE SECRETARY OF
TRANSPORTATION MUST DETERMINE THAT 

"THE AIRPORT OPERATOR OR OWNER WILL MAINTAIN A FEE AND RENTAL
STRUCTURE FOR THE FACILITIES AND SERVICES BEING PROVIDED THE AIRPORT
USERS WHICH WILL MAKE THE AIRPORT AS SELF-SUSTAINING AS POSSIBLE UNDER
THE CIRCUMSTANCES EXISTING AT THAT PARTICULAR AIRPORT, TAKING INTO
ACCOUNT SUCH FACTORS AS THE VOLUME OF TRAFFIC AND ECONOMY OF
COLLECTION."  49 U.S.C. 1718(8). 

THE COMMERCIAL AIRLNES ARGUE IN THESE CASES THAT A PROLIFERATION OF
THESE CHARGES IN AIRPORTS OVER THE COUNTRY WILL EVENTUALLY FOLLOW IN
THE WAKE OF A DECISION SUSTAINING THE VALIDITY OF THE INDIANA AND NEW
HAMPSHIRE FEES, AND THAT THIS IS ITSELF SUFFICIENT REASON TO ADJUDGE
THE CHARGES REPUGNANT TO THE COMMERCE CLAUSE.  "IF SUCH LEVIES WERE
IMPOSED BY EACH AIRPORT ALONG A TRAVELLER'S ROUTE, THE TOTAL EFFECT ON
THE COST OF AIR TRANSPORTATION COULD BE PROHIBITIVE, THE COMPETITIVE
STRUCTURE OF AIR CARRIERS COULD BE AFFECTED, AND AIR TRANSPORTATION,
COMPARED TO OTHER FORMS OF TRANSPORTATION, COULD BE SERIOUSLY
IMPAIRED."  BRIEF FOR APPELLANTS IN NO. 70-212, P. 44.  THE ARGUMENT
RELIES ON BIBB V. NAVAJO FREIGHT LINES, INC., 359 U.S. 520 (1959). 
THERE THE COURT INVALIDATED AN ILLINOIS STATUTE REQUIRING THAT TRUCKS
AND TRAILERS USING ILLINOIS HIGHWAYS BE EQUIPPED AT THE STATE LINE WITH
A CONTOUR MUDGUARD OF SPECIFIED DESIGN.  THE LOWER COURTS HAD FOUND
THAT THE CONTOUR MUDGUARD POSSESSED NO ADVANTAGES IN TERMS OF SAFETY
OVER THE CONVENTIONAL FLAT PERMITTED IN ALL OTHER STATES AND INDEED
CREATED SAFETY HAZARDS.  BUT THERE IS NO SUGGESTION THAT THE INDIANA
AND NEW HAMPSHIRE CHARGES DO NOT IN FACT ADVANCE THE CONSTITUTIONALLY
PERMISSIBLE OBJECTIVE OF HAVING INTERSTATE COMMERCE BEAR A FAIR SHARE
OF THE COSTS TO THE STATES OF AIRPORTS CONSTRUCTED AND MAINTAINED FOR
THE PURPOSE OF AIDING INTERSTATE AIR TRAVEL.  IN THAT CIRCUMSTANCE,
"(AT LEAST UNTIL CONGRESS CHOOOSES TO ENACT A NATION-WIDE RULE, THE
POWER WILL NOT BE DENIED TO THE STATES)."  FREEMAN V. HEWIT, 329
U.S.,AT 253; SEE ALSO SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761,
775-776 (1945). 

THE JUDGMENT IN NO. 70-99 IS REVERSED; THE JUDGMENT IN NO. 70-212 IS
AFFIRMED. 

              IT IS SO ORDERED. 

/1/  "EMPLANE" IS A VARIANT OF "ENPLANE."  WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 743 (1961). 

/2/  BEFORE THE ENACTMENT OF CHAPTER 391, N.H. REV. STAT. ANN. SEC.
422:43 LEVIED A $1 SERVICE CHARGE FOR EACH PASSENGER BOARDING A
SCHEDULED AIRLINE AT AN AIRPORT RECEIVING DEVELOPMENT FUNDS FROM A
CERTAIN STATE BOND ISSUE AUTHORIZED IN 1957.  SECTION 422:44 IMPOSED A
SIMILAR FEE FOR NONSCHEDULED COMMERCIAL PLANES.  NO FEE WAS IMPOSED FOR
NONCOMMERCIAL AIRCRAFT OR FOR COMMERCIAL AIRCRAFT WEIGHING LESS THAN
12,500 POUNDS.  ALL OF THE FEES COLLECTED WERE TO BE USED TO PAY OFF
THE 1957 BOND ISSUE, AND THE CHARGE WAS TO CEASE ONCE REPAYMENT WAS
COMPLETED.  N.H. REV. STAT. ANN. SEC. 422:45. 

CHAPTER 391 BROADENED THE APPLICABILITY OF THE FEE FOR SCHEDULED
AIRLINES TO ALL AIRPORTS THAT HAD RECEIVED STATE OR LOCAL PUBLIC FUNDS
SINCE 1959, AND AS TO THESE AIRLINES ELIMINATED THE PROVISIONS
TERMINATING THE FEE UPON REPAYMENT OF THE 1957 BOND ISSUE.  THE ACT
ALSO IMPOSED THE 50[ SERVICE CHARGE FOR BOARDING OF SMALL AIRCRAFT
(UNDER 12,500 POUNDS) OPERATED BY SCHEDULED AIRLINES, BUT RETAINED THE
SMALL-PLANE EXEMPTION FOR NONSCHEDULED AIRLINES. 

CHAPTER 140 OF THE NEW HAMPSHIRE LAWS OF 1971, ENACTED AFTER THE
STATE SUPREME COURT DECISION INVOLVED HERE, EXPANDED THE CHARGE IMPOSED
ON NONSCHEDULED AIRLINES BY INCLUDING ALL AIRPORTS RECEIVING STATE OR
LOCAL FUNDS AFTER 1959.  THE LEGISLATURE DID NOT ELIMINATE THE BOND
REPAYMENT CUT-OFF, AS IT HAD FOR SCHEDULED AIRLINES, NOR DID IT APPLY
THE 50[ FEE TO LIGHT AIRCRAFT OPERATED BY NONSCHEDULED AIRLINES. 

/3/  COURTS IN MONTANA AND NEW JERSEY HAVE INVALIDATED AIRPORT FEES
SIMILAR TO THOSE INVOLVED HERE.  NORTHWEST AIRLINES, INC. V. JOINT CITY
COUNTY AIRPORT BD., 154 MONT. 352, 463 P.2D 470 (1970); ALLEGHENY
AIRLINES, INC. V. SILLS, 110 N.J.SUPER.  54, 264 A.2D 268 (1970).  IN
ADDITION, SEVERAL LEGISLATIVE PROPOSALS FOR SIMILAR TAXES HAVE BEEN
ABANDONED ON THE BASIS OF OPINIONS BY STATE OR LOCAL OFFICIALS ARGUING
THEIR INVALIDITY. 

/4/  CONCURRING JUSTICES INVALIDATED THE TAX AS REPUGNANT TO THE
COMMERCE CLAUSE.  6 WALL.,AT 49. 

/5/  THE STATE'S JURISDICTION TO TAX IS, HOWEVER, LIMITED BY THE DUE
PROCESS REQUIREMENT THAT THE "TAXING POWER EXERTED BY THE STATE (BEAR)
FISCAL RELATION TO PROTECTION, OPPORTUNITIES AND BENFITS GIVEN BY THE
STATE."  WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 444 (1940). 

/6/  THIS DISTINCTION HAS BEEN DRAWN IN OTHER CASES.  FOR EXAMPLE,
IN STRIKING DOWN A STATE TAX CONSTRUED AS FALLING "UPON THE PRIVILEGE
OF CARRYING ON A BUSINESS THAT WAS EXCLUSIVELY INTERSTATE IN
CHARACTER," SPECTOR MOTOR SERVICE, INC. V. O'CONNOR, 340 U.S. 602, 609
(1951) , THE COURT EXPRESSLY DISTINGUISHED IT FROM A TAX "LEVIED AS
COMPENSATION FOR THE USE OF HIGHWAYS."  ID., AT 607. 

/7/  ACTIVE MEMBERS OF THE MILITARY AND TEMPORARY LAYOVERS ARE NOT
SUBJECT TO THE INDIANA TAX.  THE NEW HAMPSHIRE STATUTE ON ITS FACE DOES
NOT DISTINGUISH THESE CLASSES OF PASSENGERS. 

/8/  DEPLANING PASSENGERS ARE NOT SUBJECT TO EITHER TAX. 

/9/  PRIVATE AVIATORS ARE NOT SUBJECT TO EITHER TAX. 

/10/  NEW HAMPSHIRE IMPOSED A FEE OF $1 FOR NONSCHEDULED FLIGHTS ON
AIRCRAFT WEIGHING MORE THAN 12,500 POUNDS, BUT NO FEE FOR NONSCHEDULED
FLIGHTS ON LIGHTER PLANES; THE $1 FEE LAPSES UPON REPAYMENT OF A BOND
ISSUE AUTHORIZED IN 1957.  SEE N. 2, SUPRA.  THE INDIANA ORDINANCE ON
ITS FACE DOES NOT DISTINGUISH BETWEEN SCHEDULED AND NONSCHEDULED
COMMERCIAL FLIGHTS. 

/11/ NEW HAMPSHIRE IMPOSES A 50[ FEE FOR COMMERCIAL FLIGHTS ON LIGHT
AIRCRAFT IF SCHEDULED, AND NO FEE IF UNSCHEDULED.  THE INDIANA
ORDINANCE ON ITS FACE DOES NOT DISTINGUISH LIGHT FROM HEAVY AIRCRAFT. 

/12/  THE PARTIES IN NO. 70-99, FOR EXAMPLE, HAVE STIPULATED THAT
"(MOST OF THE FACILITIES CONSTITUTING THE TERMINAL BUILDING AT DRESS
MEMORIAL AIRPORT WOULD NOT BE ESSENTIAL FOR THE OPERATION OF A
NONCOMMERCIAL AIRPORT EXCEPT FOR THE REQUIRED USE THEREOF BY PERSONS
TRAVELING ON COMMERCIAL AIRLINES," THAT "RUNWAY LENGTHS, APPROACH
AREAS, TAXIWAYS AND RAMP AREAS OF SAID DRESS MEMORIAL AIRPORT WOULD NOT
BE SUFFICIENTLY EXTENSIVE IN ORDER TO ACCOMMODATE COMMERCIAL AIRLINE
CARRIERS AND THEIR PASSENGERS," AND THAT "DRESS MEMORIAL AIRPORT
OPERATES AND MAINTAINS AN INSTRUMENT LIGHTING SYSTEM AND AN APPROACH
LIGHTING SYSTEM FOR USE BY COMMERCIAL AIRLINES, BOTH OF WHICH ARE
COSTLY TO MAINTAIN AND OPERATE AND WOULD NOT BE NECESSARY IN CONNECTION
WITH USE BY PRIVATE, NONCOMMERCIAL AIRCRAFT."  APP. 54, 55. 

/13/  BECAUSE THEY DO REFLECT A RATIONAL MEASURE OF RELATIVE USE,
THESE EXCEPTIONS AND EXEMPTIONS ARE ALSO CONSISTENT WITH THE
REQUIREMENT OF THE EQUAL PROTECTION CLAUSE, THAT "IN DEFINING A CLASS
SUBJECT TO LEGISLATION, THE DISTINCTIONS THAT ARE DRAWN HAVE 'SOME
RELEVANCE TO THE PURPOSE FOR WHICH THE CLASSIFICATION IS MADE.' 
BAXSTROM V. HEROLD, 383 U.S. 107, 111; CARRINGTON V. RASH, 380 U.S. 89,
93; LOUISVILLE GAS CO. V. COLEMAN, 277 U.S. 32, 37; ROYSTER GUANO CO.
V. VIRGINIA, 253 U.S. 412, 415."  RINALDI V. YEAGER, 384 U.S. 305, 309
(1966). 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THESE CASES ARE GOVERNED BY CRANDALL V. NEVADA, 6 WALL.  35, WHICH
MUST BE OVERRULED IF WE ARE TO SUSTAIN THE INSTANT TAXES. 

ONE CASE INVOVLES AN INDIANA TAX OF $1 ON EVERY ENPLANING COMMERCIAL
AIRLINE PASSENGER AT THE EVANSVILLE AIRPORT.  THE OTHER INVOLVES A NEW
HAMPSHIRE $1 TAX ON EVERY PASSENGER ENPLANING A SCHEDULED COMMERCIAL
AIRCRAFT WITH A GROSS WEIGHT OF 12,500 POUNDS OR MORE AND A 50[ TAX ON
EVERY PASSENGER ENPLANING SUCH AIRCRAFT WITH A GROSS WEIGHT OF LESS
THAN 12,500 POUNDS.     THE CARRIERS ARE MADE RESPONSIBLE FOR PAYING,
ACCOUNTING FOR, AND REMITTING THE FEE TO THE LOCAL AUTHORITY. 

CRANDALL V. NEVADA, DECIDED BEFORE THE FOURTEENTH AMENDMENT, STRUCK
DOWN A STATE LAW WHICH LEVIED A $1 TAX ON EVERY PERSON LEAVING THE
STATE BY RAIL, STAGE COACH, OR OTHER COMMON CARRIER.  MR. JUSTICE
MILLER, SPEAKING FOR THE COURT, SAID THE CITIZEN HAD RIGHTS WHICH THE
TAX ABRIDGED: 

"HE HAS A RIGHT TO FREE ACCESS TO ITS SEA-PORTS, THROUGH WHICH ALL
THE OPERATIONS OF FOREIGN TRADE AND COMMERCE ARE CONDUCTED, TO THE SUB
TREASURIES, THE LAND OFFICES, THE REVENUE OFFICES, AND THE COURTS OF
JUSTICE IN THE SEVERAL STATES, AND THIS RIGHT IS IN ITS NATURE
INDEPENDENT OF THE WILL OF ANY STATE OVER WHOSE SOIL HE MUST PASS IN
THE EXERCISE OF IT."  ID., AT 44.  AND HE QUOTED WITH APPROVAL FROM THE
DISSENTING OPINION IN THE PASSENGER CASES, 7 HOW.  283, 492: 

"'FOR ALL THE GREAT PURPOSES FOR WHICH THE FEDERAL GOVERNMENT WAS
FORMED WE ARE ALL CITIZENS OF THE UNITED STATES, AND AS MEMBERS OF THE
SAME COMMUNITY MUST HAVE THE RIGHT TO PASS AND REPASS THROUGH EVERY
PART OF IT WITHOUT INTERRUPTION, AS FREELY AS IN OUR OWN STATES.  AND A
TAX IMPOSED BY A STATE, FOR ENTERING ITS TERRITORIES OR HARBORS, IS
INCONSISTENT WITH THE RIGHTS WHICH BELONG TO CITIZENS OF OTHER STATES
AS MEMBERS OF THE UNION, AND WITH OBJECTS WHICH THAT UNION WAS INTENDED
TO ATTAIN.  SUCH A POWER IN THE STATES COULD PRODUCE NOTHING BY DISCORD
AND MUTUAL IRRITATION, AND THEY VERY CLEARLY DO NOT POSSESS IT.'"  6
WALL.,AT 48-49 

USUALLY THE RIGHT TO TRAVEL HAS BEEN FOUNDED ON THE COMMERCE
CLAUSE.  /1/  SEE UNITED STATES V. GUEST, 383 U.S. 745, 758-759.  SOME,
INCLUDING MYSELF, HAVE THOUGHT THE RIGHT TO TRAVEL WAS A PRIVILEGE AND
IMMUNITY OF NATIONAL CITIZENSHIP.  /2/  EDWARDS V. CALIFORNIA, 314 U.S.
160, 177 (DOUGLAS, J., CONCURRING).  WHATEVER THE SOURCE, THE RIGHT
EXISTS.  /3/  SEE GRAHAM V. RICHARDSON, 403 U.S. 365; GRIFFIN V.
BRECKENRIDGE, 403 U.S. 88, 105-106; OREGON V. MITCHELL, 400 U.S. 112,
237-238 (SEPARATE OPINION OF BRENNAN, WHITE, AND MARSHALL, JJ.);
SHAPIRO V. THOMPSON, 394 U.S. 618, 630-631; UNITED STATES V. GUEST, 383
U.S.,AT 757-758. 

HERETOFORE, WE HAVE HELD THAT A TAX IMPOSED ON A CARRIER BUT
MEASURED BY THE NUMBER OF PASSENGERS IS NO DIFFERENT FROM A DIRECT
EXACTION UPON THE PASSENGERS THEMSELVES, WHETHER OR NOT THE CARRIER IS
AUTHORIZED TO COLLECT THE TAX FROM THE PASSENGERS.  PICKARD V. PULLMAN
SOUTHERN CAR CO., 117 U.S. 34, 46; STATE FREIGHT TAX CASE, 15 WALL. 
232, 281.  TO BE SURE, GETTING ONTO A PLANE IS AN INTRASTATE ACT.  BUT
A TAX IMPOSED ON A LOCAL ACTIVITY THAT IS RELATED TO INTERSTATE
COMMERCE IS VALID ONLY IF THE LOCAL ACTIVITY IS NOT SUCH AN INTEGRAL
PART OF INTERSTATE COMMERCE THAT IT CANNOT BE REALISTICALLY SEPARATED
FROM IT.  /4/  MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S.
157, 166.  IN THAT CASE THE TAX STRUCK DOWN WAS THE TAX ON GAS THAT HAD
BEEN PROCESSED FOR INTERSTATE USE-- AND A TAX "ON THE EXIT OF THE GAS
FROM THE STATE."  ID., AT 167.  WE HELD THAT THAT EXIT WAS "A PART OF
INTERSTATE COMMERCE ITSELF."  ID., AT 168. 

THE SAME IS TRUE HERE, FOR THE STEP OF THE PASSENGER ENPLANING THE
AIRCRAFT IS BUT AN INSTANT AWAY FROM AND AN INSEPARABLE PART OF AN
INTERSTATE FLIGHT. 

OF COURSE INTERSTATE COMMERCE CAN BE MADE TO PAY ITS FAIR SHARE OF
THE COST OF THE LOCAL GOVERNMENT WHOSE PROTECTION IT ENJOYS.  BUT
THOUGH A LOCAL RESIDENT CAN BE MADE TO PAY TAXES TO SUPPORT HIS
COMMUNITY, HE CANNOT BE REQUIRED TO PAY A FEE FOR MAKING A SPEECH OR
EXERCISING ANY OTHER FIRST AMENDMENT RIGHT.  LIKE PROHIBITIONS OBTAIN
WHEN LICENSING IS EXACTED FOR EXERCISING CONSTITUTIONAL RIGHTS.  LOVELL
V. GRIFFIN, 303 U.S. 444, 451-452; THOMAS V. COLLINS, 323 U.S. 516, 540
541; HARMAN V. FORSSENIUS, 380 U.S. 528, 542.  HERETOFORE WE HAVE
TREATED THE RIGHT TO PARTICIPATE IN INTERSTATE COMMERCE IN PRECISELY
THE SAME WAY ON THE THEORY THAT THE "POWER TO TAX THE EXERCISE OF A
PRIVILEGE IS THE POWER TO CONTROL OR SUPPRESS ITS ENJOYMENT."  MURDOCK
V. PENNSYLVANIA, 319 U.S. 105, 112, I ADHERE TO THAT VIEW; FEDERAL
CONSTITUTIONAL RIGHTS SHOULD NEITHER BE "CHILLED" NOR "SUFFOCATED." 

ARE WE NOW TO ASSUME THAT CALVERT AND MURDOCK ARE NO LONGER THE
LAW? 

I WOULD AFFIRM THE INDIANA JUDGMENT AND REVERSE NEW HAMPSHIRE'S. 

/1/  HELSON & RANDOLPH V. KENTUCKY, 279 U.S. 245, 251; PHILADELPHIA
& SOUTHERN S.S. CO. V. PENNSYLVANIA, 122 U.S. 326, 339; COLGATE V.
HARVEY, 296 U.S. 404, 443-444 (STONE, J., DISSENTING); BOWMAN V.
CHICAGO & NORTHWESTERN R. CO., 125 U.S. 465, 480-481. 

/2/  OREGON V. MITCHELL, 400 U.S. 112, 285 (STEWART J., CONCURRING
AND DISSENTING); BELL V. MARYLAND, 378 U.S. 226, 250, 255 (SEPARATE
OPINION OF DOUGLAS, J.), 293-294, N. 10 (GOLDBERG, J., CONCURRING); NEW
YORK V. O'NEILL, 359 U.S. 1, 12 (DOUGLAS, J., DISSENTING); KENT V.
DULLES, 357 U.S. 116, 125-127; EDWARDS V. CALIFORNIA, 314 U.S. 160, 177
(DOUGLAS, J., CONCURRING), 181 (JACKSON J., CONCURRING); GILBERT V.
MINNESOTA, 254 U.S. 325, 337 (BRANDEIS, J., DISSENTING); TWINING V. NEW
JERSEY, 211 U.S. 78, 97; COOK V. PENNSYLVANIA, 97 U.S. 566; UNITED
STATES V. WHEELER, 254 U.S. 281; COLGATE V. HARVEY, 296 U.S.,AT 429
430; SLAUGHTER-HOUSE CASES, 16 WALL.  36, 79. 

/3/  ONLY THE OTHER DAY IN DUNN V. BLUMSTEIN, ANTE, P. 330, WE HELD
A DURATIONAL RESIDENCE REQUIREMENT THAT WAS A PREREQUISITE TO VOTING
INVALID BECAUSE IT "DIRECTLY IMPINGES ON THE EXERCISE OF A . . .
FUNDAMENTAL PERSONAL RIGHT, THE RIGHT TO TRAVEL."  AND WE CITED A HOST
OF "RIGHT TO TRAVEL" CASES INCLUDING UNITED STATES V. GUEST, 383 U.S.
745, 758; PASSENGER CASES, 7 HOW.  283, 492 (TANEY, C.J., DISSENTING);
CRANDALL V. NEVADA, 6 WALL.  35; PAUL V. VIRGINIA, 8 WALL.  168, 180;
EDWARDS V. CALIFORNIA, SUPRA; KENT V. DULLES, 357 U.S.,AT 126; SHAPIRO
V. THOMPSON, 394 U.S. 618, 629-631, 634; OREGON V. MITCHELL, 400
U.S.,AT 237 (SEPARATE OPINION OF BRENNAN, WHITE, AND MARSHALL, JJ.),
285-286 (STEWART, J., CONCURRING AND DISSENTING). 

IN ANSWER TO THE ARGUMENT THAT ACTUAL DETERRENCE OF TRAVEL NEED NOT
BE SHOWN WE SAID:  "IT IS IRRELEVANT WHETHER DISENFRANCHISEMENT OR
DENIAL OF WELFARE IS THE MORE POTENT DETERRENT TO TRAVEL.  SHAPIRO DID
NOT REST UPON A FINDING THAT DENIAL OF WELFARE ACTUALLY DETERRED
TRAVEL.  NOR HAVE OTHER 'RIGHT TO TRAVEL' CASES IN THIS COURT ALWAYS
RELIED ON THE PRESENCE OF ACTUAL DETERRENCE.  IN SHAPIRO WE EXPLICITLY
STATED THAT THE COMPELLING STATE INTEREST TEST WOULD BE TRIGGERED BY
'ANY CLASSIFICATION WHICH SERVED TO PENALIZE THE EXERCISE OF THAT RIGHT
(TO TRAVEL) . . . . '  (394 U.S.),AT 634; SEE ID., AT 638 N. 21.  WHILE
NOTING THE FRANK LEGISLATIVE PURPOSE TO DETER MIGRATION BY THE POOR,
AND SPECULATING THAT 'AN INDIGENT WHO DESIRED TO MIGRATE . . . WILL
DOUBTLESS HESITATE IF HE KNOWS THAT HE MUST RISK; THE LOSS OF BENEFITS,
ID., AT 628-629, THE MAJORITY FOUND NO NEED TO DISPUTE THE 'EVIDENCE
THAT FEW WELFARE RECIPIENTS HAVE IN FACT BEEN DETERRED (FROM MOVING) BY
RESIDENCE REQUIREMENTS.'  ID., AT 650 (WARREN, C.J., DISSENTING); SEE
ALSO ID., AT 761-672 (HARLAN, J., DISSENTING).  INDEED, NONE OF THE
LITIGRANTS HAD THEMSELVES BEEN DETERRED."  ANTE, AT 339-340. 

/4/  IN HELSON & RANDOLPH V. KENTUCKY, 279 U.S. 245, FOR EXAMPLE, WE
CONSIDERED A TAX IMPOSED BY THE STATE OF KENTUCKY UPON THE USE, WITHIN
ITS BORDERS, OF GASOLINE BY INTERSTATE CARRIERS.  WE DETERMINED THAT
SUCH A TAX WAS A DIRECT BURDEN ON AN INSTRUMENTALITY OF INTERSTATE
COMMERCE AND THEREFORE STRUCK IT DOWN.  WE SAID: 

"THE TAX IS EXACTED AS THE PRICE OF THE PRIVILEGE OF USING AN
INSTRUMENTALITY OF INTERSTATE COMMERCE.  IT REASONABLY CANNOT BE
DISTINGUISHED FROM A TAX FOR USING A LOCOMOTIVE OR A CAR EMPLOYED IN
SUCH COMMERCE.  A TAX LAID UPON THE USE OF THE FERRY BOAT, WOULD
PRESENT AN EXACT PARALLEL.  AND IS NOT THE FUEL CONSUMED IN PROPELLING
THE BOAT AN INSTRUMENTALITY OF COMMERCE NO LESS THAN THE BOAT ITSELF? 
A TAX, WHICH FALLS DIRECTLY UPON THE USE OF ONE OF THE MEANS BY WHICH
COMMERCE IS CARRIED ON, DIRECTLY BURDENS THAT COMMERCE.  IF A TAX
CANNOT BE LAID BY A STATE UPON THE INTERSTATE TRANSPORTATION OF THE
SUBJECTS OF COMMERCE, AS THIS COURT DEFINITELY HAS HELD, IT IS LITTLE
MORE THAN REPETITION TO SAY THAT SUCH A TAX CANNOT BE LAID UPON THE USE
OF A MEDIUM BY WHICH SUCH TRANSPORTATION IS EFFECTED.  'ALL RESTRAINTS
BY EXACTIONS IN THE FORM OF TAXES UPON SUCH TRANSPORTATION, OR UPON
ACTS NECESSARY TO ITS COMPLETION, ARE SO MANY INVASIONS OF THE
EXCLUSIVE POWER OF CONGRESS TO REGULATE THAT PORTION OF COMMERCE
BETWEEN THE STATES.'"  ID., AT 252. 

HOWARD P. TROCKMAN ARGUED THE CAUSE FOR PETITIONERS IN NO. 70-99. 
WITH HIM ON THE BRIEFS WAS JAMES F. FLYNN.  JOHN K. MALLORY, JR.,
ARGUED THE CAUSE FOR RESPONDENTS IN NO. 70-99 AND FOR APPELLANTS IN NO.
70-212.  WITH HIM ON THE BRIEF IN NO. 70-99 WERE FRED P. BAMBERGER, J.
EUGENE MARANS, AND JEFFREY R. KINNEY.  WITH HIM ON THE BRIEF IN NO. 70
212 WERE JOSEPH A. MILLIMET AND MR. MARANS.  W. MICHAEL DUNN, ASSISTANT
ATTORNEY GENERAL OF NEW HAMPSHIRE, ARGUED THE CAUSE FOR APPELLEES IN
NO. 70-212.  WITH HIM ON THE BRIEF WAS WARREN B. RUDMAN, ATTORNEY
GENERAL. 

DONALD G. ALEXANDER FILED A BRIEF FOR THE NATIONAL LEAGUE OF CITIES
AS AMICUS CURIAE URGING REVERSAL IN NO. 70-99. 
..END :



















SIERRA CLUB V. MORTON, 405 U.S. 727 


       SIERRA CLUB V. MORTON, SECRETARY OF THE INTERIOR, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 70-34.  ARGUED NOVEMBER 17, 1971-- DECIDED APRIL 19,

1972 


PETITIONER, A MEMBERSHIP CORPORATION WITH "A SPECIAL INTEREST IN THE
CONSERVATION AND SOUND MAINTENANCE OF THE NATIONAL PARKS, GAME REFUGES
AND FORESTS OF THE COUNTRY," BROUGHT THIS SUIT FOR A DECLARATORY
JUDGMENT AND AN INJUNCTION TO RESTRAIN FEDERAL OFFICIALS FROM APPROVING
AN EXTENSIVE SKIING DEVELOPMENT IN THE MINERAL KING VALLEY IN THE
SEQUOIA NATIONAL FOREST.  PETITIONER RELIES ON SEC. 10 OF THE
ADMINISTRATIVE PROCEDURE ACT, WHICH ACCORDS JUDICIAL REVIEW TO A
"PERSON SUFFERING LEGAL WRONG BECAUSE OF AGENCY ACTION, OR (WHO IS)
ADVERSELY AFFECTED OR AGGRIEVED BY AGENCY ACTION WITHIN THE MEANING OF
A RELEVANT STATUTE."  ON THE THEORY THAT THIS WAS A "PUBLIC" ACTION
INVOLVING QUESTIONS AS TO THE USE OF NATURAL RESOURCES, PETITIONER DID
NOT ALLEGE THAT THE CHALLENGED DEVELOPMENT WOULD AFFECT THE CLUB OR ITS
MEMBERS IN THEIR ACTIVITIES OR THAT THEY USED MINERAL KING, BUT
MAINTAINED THAT THE PROJECT WOULD ADVERSELY CHANGE THE AREA'S
AESTHETICS AND ECOLOGY.  THE DISTRICT COURT GRANTED A PRELIMINARY
INJUNCTION.  THE COURT OF APPEALS REVERSED, HOLDING THAT THE CLUB
LACKED STANDING, AND HAD NOT SHOWN IRREPARABLE INJURY.  HELD:  A PERSON
HAS STANDING TO SEEK JUDICIAL REVIEW UNDER THE ADMINISTRATIVE PROCEDURE
ACT ONLY IF HE CAN SHOW THAT HE HIMSELF HAS SUFFERED OR WILL SUFFER
INJURY, WHETHER ECONOMIC OR OTHERWISE.  IN THIS CASE, WHERE PETITIONER
ASSERTED NO INDIVIDUALIZED HARM TO ITSELF OR ITS MEMBERS, IT LACKED
STANDING TO MAINTAIN THE ACTION.  PP. 731-741. 

433 F.2D 24, AFFIRMED. 

STEWART J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.J.,
AND WHITE AND MARSHALL, JJ., JOINED.  DOUGLAS, J., POST, P. 741,
BRENNAN, J., POST, P. 755, AND BLACKMUN, J., POST, P. 755, FILED
DISSENTING OPINIONS.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

       I 

THE MINERAL KING VALLEY IS AN AREA OF GREAT NATURAL BEAUTY NESTLED
IN THE SIERRA NEVADA MOUNTAINS IN TULARE COUNTY, CALIFORNIA, ADJACENT
TO SEQUOIA NATIONAL PARK.  IT HAS BEEN PART OF THE SEQUOIA NATIONAL
FOREST SINCE 1926, AND IS DESIGNATED AS A NATIONAL GAME REFUGE BY
SPECIAL ACT OF CONGRESS.  /1/  THOUGH ONCE THE SITE OF EXTENSIVE MINING
ACTIVITY, MINERAL KING IS NOW USED ALMOST EXCLUSIVELY FOR RECREATIONAL
PURPOSES.  ITS RELATIVE INACCESSIBILITY AND LACK OF DEVELOPMENT HAVE
LIMITED THE NUMBER OF VISITORS EACH YEAR, AND AT THE SAME TIME HAVE
PRESERVED THE VALLEY'S QUALITY AS A QUASIWILDERNESS AREA LARGELY
UNCLUTTERED BY THE PRODUCTS OF CIVILIZATION. 

THE UNITED STATES FOREST SERVICE, WHICH IS ENTRUSTED WITH THE
MAINTENANCE AND ADMINISTRATION OF NATIONAL FORESTS, BEGAN IN THE LATE
1940'S TO GIVE CONSIDERATION TO MINERAL KING AS A POTENTIAL SITE FOR
RECREATIONAL DEVELOPMENT.  PRODDED BY A RAPIDLY INCREASING DEMAND FOR
SKIING FACILITIES, THE FOREST SERVICE PUBLISHED A PROSPECTUS IN 1965,
INVITING BIDS FROM PRIVATE DEVELOPERS FOR THE CONSTRUCTION AND
OPERATION OF A SKI RESORT THAT WOULD ALSO SERVE AS A SUMMER RECREATION
AREA.  THE PROPOSAL OF WALT DISNEY ENTERPRISES, INC., WAS CHOSEN FROM
THOSE OF SIX BIDDERS, AND DISNEY RECEIVED A THREE-YEAR PERMIT TO
CONDUCT SURVEYS AND EXPLORATIONS IN THE VALLEY IN CONNECTION WITH ITS
PREPARATION OF A COMPLETE MASTER PLAN FOR THE RESORT. 

THE FINAL DISNEY PLAN, APPROVED BY THE FOREST SERVICE IN JANUARY
1969, OUTLINES A $35 MILLION COMPLEX OF MOTELS, RESTAURANTS, SWIMMING
POOLS, PARKING LOTS, AND OTHER STRUCTURES DESIGNED TO ACCOMMODATE
14,000 VISITORS DAILY.  THIS COMPLEX IS TO BE CONSTRUCTED ON 80 ACRES
OF THE VALLEY FLOOR UNDER A 30-YEAR USE PERMIT FROM THE FOREST
SERVICE.  OTHER FACILITIES, INCLUDING SKI LIFTS, SKI TRAILS, A COG
ASSISTED RAILWAY, AND UTILITY INSTALLATIONS, ARE TO BE CONSTRUCTED ON
THE MOUNTAIN SLOPES AND IN OTHER PARTS OF THE VALLEY UNDER A REVOCOABLE
SPECIAL-USE PERMIT.  TO PROVIDE ACCESS TO THE RESORT, THE STATE OF
CALIFORNIA PROPOSES TO CONSTRUCT A HIGHWAY 20 MILES IN LENGTH.  A
PROPOSED HIGH-VOLTAGE POWER LINE NEEDED TO PROVIDE ELECTRICITY FOR THE
RESORT.  BOTH THE HIGHWAY AND THE POWER LINE REQUIRE THE APPROVAL OF
THE DEPARTMENT OF INTERIOR, WHICH IS ENTRUSTED WITH THE PRESERVATION
AND MAINTENANCE OF THE NATIONAL PARKS. 

REPRESENTATIVES OF THE SIERRA CLUB, WHO FAVOR MAINTAINING MINERAL
KING LARGELY IN ITS PRESENT STATE, FOLLOWED THE PROGRESS OF
RECREATIONAL PLANNING FOR THE VALLEY WITH CLOSE ATTENTION AND
INCREASING DISMAY.  THEY UNSUCCESSFULLY SOUGHT A PUBLIC HEARING ON THE
PROPOSED DEVELOPMENT IN 1965, AND IN SUBSEQUENT CORRESPONDENCE WITH
OFFICIALS OF THE FOREST SERVICE AND THE DEPARTMENT OF THE INTERIOR,
THEY EXPRESSED THE CLUB'S OBJECTIONS TO DISNEY'S PLAN AS A WHOLE AND TO
PARTICULAR FEATURES INCLUDED IN IT.  IN JUNE 1969 THE CLUB FILED THE
PRESENT SUIT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, SEEKING A DECLARATORY JUDGMENT THAT VARIOUS
ASPECTS OF THE PROPOSED DEVELOPMENT CONTRAVENE FEDERAL LAWS AND
REGULATIONS GOVERNING THE PRESERVATION OF NATIONAL PARKS, FORESTS, AND
GAME REFUGES, /2/  AND ALSO SEEKING PRELIMINARY AND PERMANENT
INJUNCTIONS RESTRAINING THE FEDERAL OFFICIALS INVOLVED FROM GRANTING
THEIR APPROVAL OR ISSUING PERMITS IN CONNECTION WITH THE MINERAL KING
PROJECT.  THE PETITIONER SIERRA CLUB SUED AS A MEMBERSHIP CORPORATION
WITH "A SPECIAL INTEREST IN THE CONSERVATION AND THE SOUND MAINTENANCE
OF THE NATIONAL PARKS, GAME REFUGES AND FORESTS OF THE COUNTRY," AND
INVOKED THE JUDICIAL-REVIEW PROVISIONS OF THE ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. 701 ET SEQ. 

AFTER TWO DAYS OF HEARINGS, THE DISTRICT COURT GRANTED THE REQUESTED
PRELIMINARY INJUNCTION.  IT REJECTED THE RESONDENTS' CHALLENGE TO THE
SIERRA CLUB'S STANDING TO SUE, AND DETERMINED THAT THE HEARING HAD
RAISED QUESTIONS "CONCERNING POSSIBLE EXCESS OF STATUTORY AUTHORITY,
SUFFICIENTLY SUBSTANTIAL AND SERIOUS TO JUSTIFY A PRELIMINARY
INJUNCTION . . . . "  THE RESPONDENTS APPEALED, AND THE COURT OF
APPEALS FOR THE NINTH CIRCUIT REVERSED.  433 F.2D 24.  WITH RESPECT TO
THE PETITIONER'S STANDING, THE COURT NOTED THAT THERE WAS "NO
ALLEGATION IN THE COMPLAINT THAT MEMBERS OF THE SIERRA CLUB WOULD BE
AFFECTED BY THE ACTIONS OF (THE RESPONDENTS) OTHER THAN THE FACT THAT
THE ACTIONS ARE PERSONALLY DISPLEASING OR DISTASTEFUL TO THEM," ID., AT
33, AND CONCLUDED: 

     "WE DO NOT BELIEVE SUCH CLUB CONCERN WITHOUT A SHOWING OF MORE

  DIRECT INTEREST CAN CONSTITUTE STANDING IN THE LEGAL SENSE

  SUFFICIENT TO CHALLENGE THE EXERCISE OF RESPONSIBILITIES ON

  BEHALF OF ALL THE CITIZENS BY TWO CABINET LEVEL OFFICIALS OF THE

GOVERNMENT ACTING UNDER CONGRESSIONAL AND CONSTITUTIONAL

AUTHORITY."  ID., AT 30. 

ALTERNATIVELY, THE COURT OF APPEALS HELD THAT THE SIERRA CLUB HAD NOT
MADE AN ADEQUATE SHOWING OF IRREPARABLE INJURY AND LIKELIHOOD OF
SUCCESS ON THE MERITS TO JUSTIFY ISSUANCE OF A PRELIMINARY INJUNCTION. 
THE COURT THUS VACATED THE INJUNCTION.  THE SIERRA CLUB FILED A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED, 401 U.S. 907, TO
REVIEW THE QUESTIONS OF FEDERAL LAW PRESENTED. 

        II 

THE FIRST QUESTION PRESENTED IS WHETHER THE SIERRA CLUB HAS ALLEGED
FACTS THAT ENTITLE IT TO OBTAIN JUDICIAL REVIEW OF THE CHALLENGED
ACTION.  WHETHER A PARTY HAS A SUFFICIENT STAKE IN AN OTHERWISE
JUSTICIABLE CONTROVERSY TO OBTAIN JUDICIAL RESOLUTION OF THAT
CONTROVERSY IS WHAT HAS TRADITIONALLY BEEN REFERRED TO AS THE QUESTION
OF STANDING TO SUE.  WHERE THE PARTY DOES NOT RELY ON ANY SPECIFIC
STATUTE AUTHORIZING INVOCATION OF THE JUDICIAL PROCESS, THE QUESTION OF
STANDING DEPENDS UPON WHETHER THE PARTY HAS ALLEGED SUCH A "PERSONAL
STAKE IN THE OUTCOME OF THE CONTROVERSY," BAKER V. CARR, 369 U.S. 186,
204, AS TO ENSURE THAT "THE DISPUTE SOUGHT TO BE ADJUDICATED WILL BE
PRESENTED IN AN ADVERSARY CONTEXT AND IN A FORM HISTORICALLY VIEWED AS
CAPABLE OF JUDICIAL RESOLUTION."  FLAST V. COHEN, 392 U.S. 83, 101. 
WHERE, HOWEVER, CONGRESS HAS AUTHORIZED PUBLIC OFFICIALS TO PERFORM
CERTAIN FUNCTIONS ACCORDING TO LAW, AND HAS PROVIDED BY STATUTE FOR
JUDICIAL REVIEW OF THOSE ACTIONS UNDER CERTAIN CIRCUMSTANCES, THE
INQUIRY AS TO STANDING MUST BEGIN WITH A DETERMINATION OF WHETHER THE
STATUTE IN QUESTION AUTHORIZES REVIEW AT THE BEHEST OF THE PLAINTIFF. 
/3/ 

THE SIERRA CLUB RELIES UPON SEC. 10 OF THE ADMINISTRATIVE PROCEDURE
ACT (APA), 5 U.S.C. 702, WHICH PROVIDES: 

     "A PERSON SUFFERING LEGAL WRONG BECAUSE OF AGENCY ACTION, OR

  ADVERSELY AFFECTED OR AGGRIEVED BY AGENCY ACTION WITHIN THE

  MEANING OF A RELEVANT STATUTE, IS ENTITLED TO JUDICIAL REVIEW

  THEREOF." 

EARLY DECISIONS UNDER THIS STATUTE INTERPRETED THE LANGUAGE AS ADOPTING
THE VARIOUS FORMULATIONS OF "LEGAL INTEREST" AND "LEGAL WRONG" THEN
PREVAILING AS CONSTITUTIONAL REQUIREMENTS OF STANDING.  /4/  BUT, IN
DATA PROCESSING SERVICE V. CAMP, 397 U.S. 150, AND BARLOW V. COLLINS,
397 U.S. 159, DECIDED THE SAME DAY, WE HELD MORE BROADLY THAT PERSONS
HAD STANDING TO OBTAIN JUDICIAL REVIEW OF FEDERAL AGENCY ACTION UNDER
SEC. 10 OF THE APA WHERE THEY HAD ALLEGED THAT THE CHALLENGED ACTION
HAD CAUSED THEM "INJURY IN FACT," AND WHERE THE ALLEGED INJURY WAS TO
AN INTEREST "ARGUABLY WITHIN THE ZONE OF INTERESTS TO BE PROTECTED OR
REGULATED" BY THE STATUTES THAT THE AGENCIES WERE CLAIMED TO HAVE
VIOLATED.  /5/ 

IN DATA PROCESSING, THE INJURY CLAIMED BY THE PETITIONERS CONSISTED
OF HARM TO THEIR COMPETITIVE POSITION IN THE COMPUTER-SERVICING MARKET
THROUGH A RULING BY THE COMPTROLLER OF THE CURRENCY THAT NATIONAL BANKS
MIGHT PERFORM DATA-PROCESSING SERVICES FOR THEIR CUSTOMERS.  IN BARLOW,
THE PETITIONERS WERE TENANT FARMERS WHO CLAIMED THAT CERTAIN
REGULATIONS OF THE SECRETARY OF AGRICULTURE ADVERSELY AFFECTED THEIR
ECONOMIC POSITION VIS-A-VIS THEIR LANDLORDS.  THESE PALPABLE ECONOMIC
INJURIES HAVE LONG BEEN RECOGNIZED AS SUFFICIENT TO LAY THE BASIS FOR
STANDING, WITH OR WITHOUT A SPECIFIC STATUTORY PROVISION FOR JUDICIAL
REVIEW.  /6/  THUS, NEITEHR DATA PROCESSING NOR BARLOW ADDRESSED ITSELF
TO THE QUESTION, WHICH HAS ARISEN WITH INCREASING FREQUENCY IN FEDERAL
COURTS IN RECENT YEARS, AS TO WHAT MUST BE ALLEGED BY PERSONS WHO CLAIM
INJURY OF A NONECONOMIC NATURE TO INTERESTS THAT ARE WIDELY SHARED. 
/7/  THAT QUESTION IS PRESENTED IN THIS CASE. 

        III 

THE INJURY ALLEGED BY THE SIERRA CLUB WILL BE INCURRED ENTIRELY BY
REASON OF THE CHANGE IN THE USES TO WHICH MINERAL KING WILL BE PUT, AND
THE ATTENDANT CHANGE IN THE AESTHETICS AND ECOLOGY OF THE AREA.  THUS,
IN REFERRING TO THE ROAD TO BE BUILT THROUGH SEQUOIA NATIONAL PARK, THE
COMPLAINT ALLEGED THAT THE DEVEOPMENT "WOULD DESTROY OR OTHERWISE
ADVERSELY AFFECT THE SCENERY, NATURAL AND HISTORIC OBJECTS AND WILDLIFE
OF THE PARK AND WOULD IMPAIR THE ENJOYMENT OF THE PARK FOR FUTURE
GENERATIONS."  WE DO NOT QUESTION THAT THIS TYPE OF HARM MAY AMOUNT TO
AN "INJURY IN FACT" SUFFICIENT TO LAY THE BASIS FOR STANDING UNDER SEC.
10 OF THE APA.  AESTHETIC AND ENVIRONMENTAL WELL-BEING, LIKE ECONOMIC
WELL-BEING, ARE IMPORTANT INGREDIENTS OF THE QUALITY OF LIFE IN OUR
SOCIETY, AND THE FACT THAT PARTICULAR ENVIRONMENTAL INTERESTS ARE
SHARED BY THE MANY RATHER THAN THE FEW DOES NOT MAKE THEM LESS
DESERVING OF LEGAL PROTECTION THROUGH THE JUDICIAL PROCESS.  BUT THE
"INJURY IN FACT" TEST REQUIRES MORE THAN AN INJURY TO A COGNIZABLE
INTEREST.  IT REQUIRES THAT THE PARTY SEEKING REVIEW BE HIMSELF AMONG
THE INJURED. 

THE IMPACT OF THE PROPOSED CHANGES IN THE ENVIRONMENT OF MINERAL
KING WILL NOT FALL INDISCRIMINATELY UPON EVERY CITIZEN.  THE ALLEGED
INJURY WILL BE FELT DIRECTLY ONLY BY THOSE WHO USE MINERAL KING AND
SEQUOIA NATIONAL PARK, AND FOR WHOM THE AESTHETIC AND RECREATIONAL
VALUES OF THE AREA WILL BE LESSENED BY THE HIGHWAY AND SKI RESORT.  THE
SIERRA CLUB FAILED TO ALLEGE THAT IT OR ITS MEMBERS WOULD BE AFFECTED
IN ANY OF THEIR ACTIVITIES OR PASTIMES BY THE DISNEY DEVELOPMENT. 
NOWHERE IN THE PLEADINGS OR AFFIDAVITS DID THE CLUB STATE THAT ITS
MEMBERS USE MINERAL KING FOR ANY PURPOSE, MUCH LESS THAT THEY USE IT IN
ANY WAY THAT WOULD BE SIGNIFICANTLY AFFECTED BY THE PROPOSED ACTIONS OF
THE RESPONDENTS.  /8/ 

THE CLUB APPARENTLY REGARDED ANY ALLEGATIONS OF INDIVIDUALIZED
INJURY AS SUPERFLUOUS, ON THE THEORY THAT THIS WAS A "PUBLIC" ACTION
INVOLVING QUESTIONS AS TO THE USE OF NATURAL RESOURCES, AND THAT THE
CLUB'S LONGSTANDING CONCERN WITH AND EXPERTISE IN SUCH MATTERS WERE
SUFFICIENT TO GIVE IT STANDING AS A "REPRESENTATIVE OF THE PUBLIC." 
/9/  THIS THEORY REFLECTS A MISUNDERSTANDING OF OUR CASES INVOLVING SO
CALLED "PUBLIC ACTIONS" IN THE AREA OF ADMINISTRATIVE LAW. 

THE ORIGIN OF THE THEORY ADVANCED BY THE SIERRA CLUB MAY BE TRACED
TO A DICTUM IN SCRIPPS-HOWARD RADIO V. FCC, 316 U.S. 4, IN WHICH THE
LICENSEE OF A RADIO STATION IN CINCINNATI, OHIO, SOUGHT A STAY OF AN
ORDER OF THE FCC ALLOWING ANOTHER RADIO STATION IN A NEARBY CITY TO
CHANGE ITS FREQUENCY AND INCREASE ITS RANGE.  IN DISCUSSING ITS POWER
TO GRANT A STAY, THE COURT NOTED THAT "THESE PRIVATE LITIGANTS HAVE
STANDING ONLY AS REPRESENTATIVES OF THE PUBLIC INTEREST."  ID., AT 14. 
BUT THAT OBSERVATION DID NOT DESCRIBE THE BASIS UPON WHICH THE
APPELLANT WAS ALLOWED TO OBTAIN JUDICIAL REVIEW WAS A "PERSON
AGGRIEVED" WITHIN THE MEANING OF THE STATUTE INVOLVED IN THAT CASE,
/10/ SINCE SCRIPPS-HOWARD WAS CLEARLY "AGGRIEVED" BY REASON OF THE
ECONOMIC INJURY THAT IT WOULD SUFFER AS A RESULT OF THE COMMISSION'S
ACTION.  /11/  THE COURT'S STATEMENT WAS, RATHER, DIRECTED TO THE
THEORY UPON WHICH CONGRESS HAD AUTHORIZED JUDICIAL REVIEW OF THE
COMMISSION'S ACTIONS.  THAT THEORY HAD BEEN DESCRIBED EARLIER IN FCC V.
SANDERS BROS. RADIO STATION, 309 U.S. 470, 477, AS FOLLOWS: 

     "CONGRESS HAD SOME PURPOSE IN ENACTING SEC. 402(B)(2).  IT MAY

  HAVE BEEN OF OPINION THAT ONE LIKELY TO BE FINANCIALLY INJURED BY

  THE ISSUE OF A LICENSE WOULD BE THE ONLY PERSON HAVING A

  SUFFICIENT INTEREST TO BRING TO THE ATTENTION OF THE APPELLATE

COURT ERRORS OF LAW IN THE ACTION OF THE COMMISSION IN GRANTING

  THE LICENSE.  IT IS WITHIN THE POWER OF CONGRESS TO CONFER SUCH

  STANDING TO PROSECUTE AN APPEAL." 

TAKEN TOGETHER, SANDERS AND SCRIPPS-HOWARD THUS ESTABLISHED A DUAL
PROPOSITION:  THE FACT OF ECONOMIC INJURY IS WHAT GIVES A PERSON
STANDING TO SEEK JUDICIAL REVIEW UNDER THE STATUTE, BUT ONCE REVIEW IS
PROPERLY INVOKED, THAT PERSON MAY ARGUE THE PUBLIC INTEREST IN SUPPORT
OF HIS CLAIM THAT THE AGENCY HAS FAILED TO COMPLY WITH ITS STATUTORY
MANDATE.  /12/  IT WAS IN THE LATTER SENSE THAT THE "STANDING" OF THE
APPELLANT IN SCRIPPS-HOWARD EXISTED ONLY AS A "REPRESENTATIVE OF THE
PUBLIC INTEREST."  IT IS IN A SIMILAR SENSE THAT WE HAVE USED THE
PHRASE "PRIVATE ATTORNEY GENERAL" TO DESCRIBE THE FUNCTION PERFORMED BY
PERSONS UPON WHOM CONGRESS HAS CONFERRED THE RIGHT TO SEEK JUDICIAL
REVIEW OF AGENCY ACTION.  SEE DATA PROCESSING, SUPRA, AT 154. 

THE TREND OF CASES ARISING UNDER THE APA AND OTHER STATUTES
AUTHORIZING JUDICIAL REVIEW OF FEDERAL AGENCY ACTION HAS BEEN TOWARD
RECOGNIZING THAT INJURIES OTHER THAN ECONOMIC HARM ARE SUFFICIENT TO
BRING A PERSON WITHIN THE MEANING OF THE STATUTORY LANGUAGE, AND TOWARD
DISCARDING THE NOTION THAT AN INJURY THAT IS WIDELY SHARED IS IPSO
FACTO NOT AN INJURY SUFFICIENT TO PROVIDE THE BASIS FOR JUDICIAL
REVIEW.  /13/  WE NOTED THIS DEVELOPMENT WITH APPROVAL IN DATA
PROCESSING, 397 U.S.,AT 154, IN SAYING THAT THE INTEREST ALLEGED TO
HAVE BEEN INJURED "MAY REFLECT 'AESTHETIC, CONSERVATIONAL, AND
RECREATIONAL' AS WELL AS ECONOMIC VALUES."  BUT BROADENING THE
CATEGORIES OF INJURY THAT MAY BE ALLEGED IN SUPPORT OF STANDING IS A
DIFFERENT MATTER FROM ABANDONING THE REQUIREMENT THAT THE PARTY SEEKING
REVIEW MUST HIMSELF HAVE SUFFERED AN INJURY.     SOME COURTS HAVE
INDICATED A WILLINGNESS TO TAKE THIS LATTER STEP BY CONFERRING STANDING
UPON ORGANIZATIONS THAT HAVE DEMONSTRATED "AN ORGANIZATIONAL INTEREST
IN THE PROBLEM" OF ENVIRONMENTAL OR CONSUMER PROTECTION.  ENVIRONMENTAL
DEFENSE FUND V. HARDIN, 138 U.S.APP.D.C. 391, 395, 428 F.2D 1093,
1097.  /14/  IT IS CLEAR THAT AN ORGANIZATION WHOSE MEMBERS ARE INJURED
MAY REPRESENT THOSE MEMBERS IN A PROCEEDING FOR JUDICIAL REVIEW.  SEE,
E.G., NAACP V. BUTTON, 371 U.S. 415, 428.  BUT A MERE "INTEREST IN A
PROBLEM," NO MATTER HOW LONGSTANDING THE INTEREST AND NO MATTER HOW
QUALIFIED THE ORGANIZATION IS IN EVALUATING THE PROBLEM, IS NOT
SUFFICIENT BY ITSELF TO RENDER THE ORGANIZATION "ADVERSELY AFFECTED" OR
"AGGRIEVED" WITHIN THE MEANING OF THE APA.  THE SIERRA CLUB IS A LARGE
AND LONG-ESTABLISHED ORGANIZATION, WITH A HISTORIC COMMITMENT TO THE
CAUSE OF PROTECTING OUR NATION'S NATURAL HERITAGE FROM MAN'S
DEPREDATIONS.  BUT IF A "SPECIAL INTEREST" IN THIS SUBJECT WERE ENOUGH
TO ENTITLE THE SIERRA CLUB TO COMMENCE THIS LITIGATION, THERE WOULD
APPEAR TO BE NO OBJECTIVE BASIS UPON WHICH TO DISALLOW A SUIT BY ANY
OTHER BONA FIDE "SPECIAL INTEREST" ORGANIZATION, HOWEVER SMALL OR SHORT
LIVED.  AND IF ANY GROUP WITH A BONA FIDE "SPECIAL INTEREST" COULD
INITIATE SUCH LITIGATION, IT IS DIFFICULT TO PERCEIVE WHY ANY
INDIVIDUAL CITIZEN WITH THE SAME BONA FIDE SPECIAL INTEREST WOULD NOT
ALSO BEE ENTITLED TO DO SO. 

THE REQUIREMENT THAT A PARTY SEEKING REVIEW MUST ALLEGE FACTS
SHOWING THAT HE IS HIMSELF ADVERSELY AFFECTED DOES NOT INSULATE
EXECUTIVE ACTION FROM JUDICIAL REVIEW, NOR DOES IT PREVENT ANY PUBLIC
INTERESTS FROM BEING PROTECTED THROUGH THE JUDICIAL PROCESS.  /15/  IT
DOES SERVE AS AT LEAST A ROUGH ATTEMPT TO PUT THE DECISION AS TO
WHETHER REVIEW WILL BE SOUGHT IN THE HANDS OF THOSE WHO HAVE A DIRECT
STAKE IN THE OUTCOME.  THAT GOAL WOULD BE UNDERMINED WERE WE TO
CONSTRUE THE APA TO AUTHORIZE JUDICIAL REVIEW AT THE BEHEST OF
ORGANIZATIONS OR INDIVIDUALS WHO SEEK TO DO NO MORE THAN VINDICATE
THEIR OWN VALUE PREFERENCES THROUGH THE JUDICIAL PROCESS.  /16/  THE
PRINCIPLE THAT THE SIERRA CLUB WOULD HAVE US ESTABLISH IN THIS CASE
WOULD DO JUST THAT. 

AS WE CONCLUDE THAT THE COURT OF APPEALS WAS CORRECT IN ITS HOLDING
THAT THE SIERRA CLUB LACKED STANDING TO MAINTAIN THIS ACTION, WE DO NOT
REACH ANY OTHER QUESTIONS PRESENTED IN THE PETITION, AND WE INTIMATE NO
VIEW ON THE MERITS OF THE COMPLAINT.  THE JUDGMENT IS

            AFFIRMED. 

/1/  ACT OF JULY 3, 1926, SEC. 6, 44 STAT. 821, 16 U.S.C. 688. 

/2/  AS ANALYZED BY THE DISTRICT COURT, THE COMPLAINT ALLEGED
VIOLATIONS OF LAW FALLING INTO FOUR CATEGORIES.  FIRST, IT CLAIMED THAT
THE SPECIAL-USE PERMIT FOR CONSTRUCTION OF THE RESORT EXCEEDED THE
MAXIMUM-ACREAGE LIMITATION PLACED UPON SUCH PERMITS BY 16 U.S.C. 497,
AND THAT ISSUANCE OF A "REVOCABLE" USE PERMIT WAS BEYOND THE AUTHORITY
OF THE FOREST SERVICE.  SECOND, IT CHALLENGED THE PROPOSED PERMIT FOR
THE HIGHWAY THROUGH SEQUOIA NATIONAL PARK ON THE GROUNDS THAT THE
HIGHWAY WOULD NOT SERVE ANY OF THE PURPOSES OF THE PARK, IN ALLEGED
VIOLATION OF 16 U.S.C. 1, AND THAT IT WOULD DESTROY TIMBER AND OTHER
NATURAL RESOURCES PROTECTED BY 16 U.S.C. 41 AND 43.  THIRD, IT CLAIMED
THAT THE FOREST SERVICE AND THE DEPARTMENT OF THE INTERIOR HAD VIOLATED
THEIR OWN REGULATIONS BY FAILING TO HOLD ADEQUATE PUBLIC HEARINGS ON
THE PROPOSED PROJECT.  FINALLY, THE COMPLAINT ASSERTED THAT 16 U.S.C.
45C REQUIRES SPECIFIC CONGRESSIONAL AUTHORIZATION OF A PERMIT FOR
CONSTRUCTION OF A POWER TRANSMISSION LINE WITHIN THE LIMITS OF A
NATIONAL PARK. 

/3/  CONGRESS MAY NOT CO4FER JURISDICTION ON ART. III FEDERAL COURTS
TO RENDER ADVISORY OPINIONS, MUSKRAT V. UNITED STATES.  219 U.S. 346,
OR TO ENTERTAIN "FRIENDLY" SUITS, UNITED STATES V. JOHNSON, 319 U.S.
302, OR TO RESOLVE "POLITICAL QUESTIONS," LUTHER V. BORDEN, 7 HOW.  1,
BECAUSE SUITS OF THIS CHARACTER ARE INCONSISTENT WITH THE JUDICIAL
FUNCTION UNDER ART. III.  BUT WHERE A DISPUTE IS OTHERWISE JUSTICIABLE,
THE QUESTION WHETHER THE LITIGANT IS A "PROPER PARTY TO REQUEST AN
ADJUDICATION OF A PARTICULAR ISSUE," FLAST V. COHEN, 392 U.S. 83, 100,
IS ONE WITHIN THE POWER OF CONGRESS TO DETERMINE.  CF. FCC V. SANDERS
BROS. RADIO STATION, 309 U.S. 470, 477; FLAST V. COHEN, SUPRA, AT 120
(HARLAN, J., DISSENTING); ASSOCIATED INDUSTRIES V. ICKES, 134 F.2D 694,
704.  SEE GENERALLY BERGER, STANDING TO SUE IN PUBLIC ACTIONS:  IS IT A
CONSTITUTIONAL REQUIREMENT?, 78 YALE L.J. 816, 837 ET SEQ. (1969);
JAFFE, THE CITIZEN AS LITIGANT IN PUBLIC ACTIONS:  THE NON-HOHFELDIAN
OR IDEOLOGICAL PLAINTIFF, 116 U.PA.L.REV.  1033 (1968). 

/4/  SEE, E.G., KANSAS CITY POWER & LIGHT CO. V. MCKAY, 96
U.S.APP.D.C. 273, 281, 225 F.2D 924, 932; OVE GUSTAVSSON CONTRACTING
CO. V. FLOETE, 278 F.2D 912, 914; DUBA V. SCHUETZLE, 303 F.2D 570,
574.  THE THEORY OF A "LEGAL INTEREST" IS EXPRESSED IN ITS EXTREME FORM
IN ALABAMA POWER CO. V. ICKES, 302 U.S. 464, 479-481.  SEE ALSO
TENNESSEE ELECTRIC POWER CO. V. TVA, 306 U.S. 118, 137-139. 

/5/  IN DECIDING THIS CASE WE DO NOT REACH ANY QUESTIONS CONCERNING
THE MEANING OF THE "ZONE OF INTERESTS" TEST OR ITS POSSIBLE APPLICATION
TO THE FACTS HERE PRESENTED. 

/6/  SEE, E.G., HARDIN V. KENTUCKY UTILITIES CO., 390 U.S. 1, 7;
CHICAGO V. ATCHISON, T; & S.F.R. CO., 357 U.S. 77, 83; FCC V. SANDERS
BROS. RADIO STATION, SUPRA, AT 477. 

/7/  NO QUESTION OF STANDING WAS RAISED IN CITIZENS TO PRESERVE
OVERTON PARK V. VOLPE, 401 U.S. 402.  THE COMPLAINT IN THAT CASE
ALLEGED THAT THE ORGANIZATIONAL PLAINTIFF REPRESENTED MEMBERS WHO WERE
"RESIDENTS OF MEMPHIS, TENNESSEE WHO USE OVERTON PARK AS A PARK LAND
AND RECREATION AREA AND WHO HAVE BEEN ACTIVE SINCE 1964 IN EFFORTS TO
PRESERVE AND PROTECT OVERTON PARK AS A PARK LAND AND RECREATION AREA." 

/8/  THE ONLY REFERENCE IN THE PLEADINGS TO THE SIERRA CLUB'S
INTEREST IN THE DISPUTE IS CONTAINED IN PARAGRAPH 3 OF THE COMPLAINT,
WHICH READS IN ITS ENTIRETY AS FOLLOWS: 

"PLAINTIFF SIERRA CLUB IS A NON-PROFIT CORPORATION ORGANIZED AND
OPERATING UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITH ITS PRINCIPAL
PLACE OF BUSINESS IN SAN FRANCISCO, CALIFORNIA SINCE 1892.  MEMBERSHIP
OF THE CLUB IS APPROXIMATELY 78,000 NATIONALLY, WITH APPROXIMATELY
27,000 MEMBERS RESIDING IN THE SAN FRANCISCO BAY AREA.  FOR MANY YEARS
THE SIERRA CLUB BY ITS ACTIVITIES AND CONDUCT HAS EXHIBITED A SPECIAL
INTEREST IN THE CONSERVATION AND THE SOUND MAINTENANCE OF THE NATIONAL
PARKS, GAME REFUGES AND FORESTS OF THE COUNTRY, REGULARLY SERVING AS A
RESPONSIBLE REPRESENTATIVE OF PERSONS SIMILARLY INTERESTED.  ONE OF THE
PRINCIPAL PURPOSES OF THE SIERRA CLUB IS TO PROTECT AND CONSERVE THE
NATIONAL RESOURCES OF THE SIERRA NEVADA MOUNTAINS.  ITS INTERESTS WOULD
BE VITALLY AFFECTED BY THE ACTS HEREINAFTER DESCRIBED AND WOULD BE
AGGRIEVED BY THOSE ACTS OF THE DEFENDANTS AS HEREINAFTER MORE FULLY
APPEARS." 

IN AN AMICI CURIAE BRIEF FILED IN THIS COURT BY THE WILDERNESS
SOCIETY AND OTHERS, IT IS ASSERTED THAT THE SIERRA CLUB HAS CONDUCTED
REGULAR CAMPING TRIPS INTO THE MINERAL KING AREA, AND THAT VARIOUS
MEMBERS OF THE CLUB HAVE USED AND CONTINUE TO USE THE AREA FOR
RECREATIONAL PURPOSES.  THESE ALLEGATIONS WERE NOT CONTAINED IN THE
PLEADINGS, NOR WERE THEY BROUGHT TO THE ATTENTION OF THE COURT OF
APPEALS.  MOREOVER, THE SIERRA CLUB IN ITS REPLY BRIEF SPECIFICALLY
DECLINES TO RELY ON ITS INDIVIDUALIZED INTEREST, AS A BASIS FOR
STANDING.  SEE N. 15, INFRA.  OUR DECISION DOES NOT, OF COURSE, BAR THE
SIERRA CLUB FROM SEEKING IN THE DISTRICT COURT TO AMEND ITS COMPLAINT
BY A MOTION UNDER RULE 15, FEDERAL RULES OF CIVIL PROCEDURE. 

/9/  THIS APPROACH TO THE QUESTION OF STANDING WAS ADOPTED BY THE
COURT OF APPEALS FOR THE SECOND CIRCUIT IN CITIZENS COMMITTEE FOR THE
HUDSON VALLEY V. VOLPE, 425 F.2D 97, 105: 

"WE HOLD, THEREFORE, THAT THE PUBLIC INTEREST IN ENVIRONMENTAL
RESOURCES-- AN INTEREST CREATED BY STATUTES AFFECTING THE ISSUANCE OF
THIS PERMIT-- IS A LEGALLY PROTECTED INTEREST AFFORDING THESE
PLAINTIFFS, AS RESPONSIBLE REPRESENTATIVES OF THE PUBLIC, STANDING TO
OBTAIN JUDICIAL REVIEW OF AGENCY ACTION ALLEGED TO BE IN CONTRAVENTION
OF THAT PUBLIC INTEREST." 

/10/  THE STATUTE INVOLVED WAS SEC. 402(B)(2) OF THE COMMUNICATIONS
ACT OF 1934, 48 STAT. 1093. 

/11/  THIS MUCH IS CLEAR FROM THE SCRIPPS-HOWARD COURT'S CITATION OF
FCC V. SANDERS BROS. RADIO STATION, 309 U.S. 470, IN WHICH THE BASIS
FOR STANDING WAS THE COMPETITIVE INJURY THAT THE APPELLEE WOULD HAVE
SUFFERED BY THE LICENSING OF ANOTHER RADIO STATION IN ITS LISTENING
AREA. 

/12/  THE DISTINCTION BETWEEN STANDING TO INITIATE A REVIEW
PROCEEDING, AND STANDING TO ASSERT THE RIGHTS OF THE PUBLIC OR OF THIRD
PERSONS ONCE THE PROCEEDING IS PROPERLY INITIATED, IS DISCUSSED IN 3
K.DAVIS, ADMINISTRATIVE LAW TREATISE 22.05-22.07 (1958). 

/13/  SEE, E.G., ENVIRONMENTAL DEFENSE FUND V. HARDIN, 138
U.S.APP.D.C. 391, 395, 428 F.2D 1093, 1097 (INTEREST IN HEALTH AFFECTED
BY DECISION OF SECRETARY OF AGRICULTURE REFUSING TO SUSPEND
REGISTRATION OF CERTAIN PESTICIDES CONTAINING DDT); OFFICE OF
COMMUNICATION OF THE UNITED CHURCH OF CHRIST V. FCC, 123 U.S.APP.D.C.
328, 339, 359 F.2D 994, 1005 (INTEREST OF TELEVISION VIEWERS IN THE
PROGRAMMING OF A LOCAL STATION LICENSED BY THE FCC); SCENIC HUDSON
PRESERVATION CONF. V. FPC, 354 F.2D 608, 615-616 (INTERESTS IN
AESTHETICS, RECREATION, AND ORDERLY COMMUNITY PLANNING AFFECTED BY FPC
LICENSING OF A HYDROELECTRIC PROJECT); READE V. EWING, 205 F.2D 630,
631-632 (INTEREST OF CONSUMERS OF OLEOMARGARINE IN FAIR LABELING OF
PRODUCT REGULATED BY FEDERAL SECURITY ADMINISTRATION); CROWTHER V.
SEABORG, 312 F.SUPP.  1205, 1212 (INTEREST IN HEALTH AND SAFETY OF
PERSONS RESIDING NEAR THE SITE OF A PROPOSED ATOMIC BLAST). 

/14/  SEE CITIZENS COMMITTEE FOR THE JUDSON VALLEY V. VOLPE, N. 9,
SUPRA; ENVIRONMENTAL DEFENSE FUND, INC. V. CORPS OF ENGINEERS, 325
F.SUPP.  728, 734-736; IZAAK WALTON LEAGUE V. ST. CLAIR, 313 F.SUPP. 
1312, 1317.  SEE ALSO SCENIC HUDSON PRESERVATION CONF. V. FPC, SUPRA,
AT 616: 

"IN ORDER TO INSURE THAT THE FEDERAL POWER COMMISSION WILL
ADEQUATELY PROTECT THE PUBLIC INTEREST IN THE AESTHETIC,
CONSERVATIONAL, AND RECREATIONAL ASPECTS OF POWER DEVELOPMENT, THOSE
WHO BY THEIR ACTIVITIES AND CONDUCT HAVE EXHIBITED A SPECIAL INTEREST
IN SUCH AREAS, MUST BE HELD TO BE INCLUDED IN THE CLASS OF 'AGGRIEVED'
PARTIES UNDER SEC. 313(B) (OF THE FEDERAL POWER ACT.)." 

IN MOST, IF NOT ALL, OF THESE CASES, AT LEAST ONE PARTY TO THE
PROCEEDING DID ASSERT AN INDIVIDUALIZED INJURY EITHER TO HIMSELF OR, IN
THE CASE OF AN ORGANIZATION, TO ITS MEMBERS. 

/15/  IN ITS REPLY BRIEF, AFTER NOTING THE FACT THAT IT MIGHT HAVE
CHOSEN TO ASSERT INDIVIDUALIZED INJURY TO ITSELF OR TO ITS MEMBERS AS A
BASIS FOR STANDING, THE SIERRA CLUB STATES: 

"THE GOVERNMENT SEEKS TO CREATE A 'HEADS I WIN, TAILS YOU LOSE'
SITUATION IN WHICH EITHER THE COURTHOUSE DOOR IS BARRED FOR LACK OF
ASSERTION OF A PRIVATE, UNIQUE INJURY OR A PRELIMINARY INJUNCTION IS
DENIED ON THE GROUND THAT THE LITIGANT HAS ADVANCED PRIVATE INJURY
WHICH DOES NOT WARRANT AN INJUNCTION ADVERSE TO A COMPETING PUBLIC
INTEREST.  COUNSEL HAVE SHAPED THEIR CASE TO AVOID THIS TRAP." 

THE SHORT ANSWER TO THIS CONTENTION IS THAT THE "TRAP" DOES NOT
EXIST.  THE TEST OF INJURY IN FACT GOES ONLY TO THE QUESTION OF
STANDING TO OBTAIN JUDICIAL REVIEW.  ONCE THIS STANDING IS ESTABLISHED,
THE PARTY MAY ASSERT THE INTERESTS OF THE GENERAL PUBLIC IN SUPPORT OF
HIS CLAIMS FOR EQUITABLE RELIEF.  SEE N. 12 AND ACCOMPANYING TEXT,
SUPRA. 

/16/  EVERY SCHOOLBOY MAY BE FAMILIAR WITH ALEXIS DE TOCQUEVILLE'S
FAMOUS OBSERVATION, WRITTEN IN THE 1830'S, THAT "(SCARCELY ANY
POLITICAL QUESTION ARISES IN THE UNITED STATES THAT IS NOT RESOLVED,
SOONER OR LATER, INTO A JUDICIAL QUESTION,"  1 DEMOCRACY IN AMERICA 280
(1945).  LESS FAMILIAR, HOWEVER, IS DE TOCQUEVILLE'S FURTHER
OBSERVATION THAT JUDICIAL REVIEW IS EFFECTIVE LARGELY BECAUSE IT IS NOT
AVAILABLE SIMPLY AT THE BEHEST OF A PARTISAN FACTION, BUT IS EXERCISED
ONLY TO REMEDY A PARTICULAR CONCRETE INJURY. 

"IT WILL BE SEEN, ALSO, THAT BY LEAVING IT TO PRIVATE INTEREST TO
CENSURE THE LAW, AND BY INTIMATELY UNITING THE TRIAL OF THE LAW WITH
THE TRIAL OF AN INDIVIDUAL, LEGISLATION IS PROTECTED FROM WANTON
ASSAULTS AND FROM THE DAILY AGGRESSIONS OF PARTY SPIRIT.  THE ERRORS OF
THE LEGISLATOR ARE EXPOSED ONLY TO MEET A REAL WANT; AND IT IS ALWAYS A
POSITIVE AND APPRECIABLE FACT THAT MUST SERVE AS THE BASIS OF A
PROSECUTION."  ID., AT 102. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I SHARE THE VIEW OF MY BORTHER BLACKMUN AND WOULD REVERSE THE
JUDGMENT BELOW. 

THE CRITICAL QUESTION OF "STANDING"  /1/  WOULD BE SIMPLIFIED AND
ALSO PUT NEATLY IN FOCUS IF WE FASHIONED A FEDERAL RULE THAT ALLOWED
ENVIRONMENTAL ISSUES TO BE LITIGATED BEFORE FEDERAL AGENCIES OR FEDERAL
COURTS IN THE NAME OF THE INANIMATE OBJECT ABOUT TO BE DESPOILED,
DEFACED, OR INVADED BY ROADS AND BULLDOZERS AND WHERE INJURY IS THE
SUBJECT OF PUBLIC OUTRAGE.  CONTEMPORARY PUBLIC CONCERN FOR PROTECTING
NATURE'S ECOLOGICAL EQUILIBRIUM SHOULD LEAD TO THE CONFERRAL OF
STANDING UPON ENVIRONMENTAL OBJECTS TO SUE FOR THEIR OWN PRESERVATION. 
SEE STONE SHOULD TREES HAVE STANDING?-- TOWARD LEGAL RIGHTS FOR NATURAL
OBJECTS, 45 S.CAL.L.REV.  450 (1972).  THIS SUIT WOULD THEREFORE BE
MORE PROPERLY LABELED AS MINERAL KING V. MORTON.     INANIMATE OBJECTS
ARE SOMETIMES PARTIES IN LITIGATION.  A SHIP HAS A LEGAL PERSONALITY, A
FICTION FOUND USEFUL FOR MARITIME PURPOSES.  /2/  THE CORPORATION SOLE-
A CREATURE OF ECCLESIASTICAL LAW-- IS AN ACCEPTABLE ADVERSARY AND
LARGE FORTUNES RIDE ON ITS CASES.  /3/  THE ORDINARY CORPORATION IS A
"PERSON" FOR PURPOSES OF THE ADJUDICATORY PROCESSES, WHETHER IT
REPRESENTS PROPRIETARY, SPIRITUAL, AESTHETIC, OR CHARITABLE CAUSES. 
/4/    SO IT SHOULD BE AS RESPECTS VALLEYS, ALPINE MEADOWS, RIVERS,
LAKES, ESTUARIES, BEACHES, RIDGES, GROVES OF TREES, SWAMPLAND, OR EVEN
AIR THAT FEELS THE DESTRUCTIVE PRESSURES OF MODERN TECHNOLOGY AND
MODERN LIFE.  THE RIVER, FOR EXAMPLE, IS THE LIVING SYMBOL OF ALL THE
LIFE IT SUSTAINS OR NOURISHES-- FISH, AQUATIC INSECTS, WATER OUZELS,
OTTER, FISHER, DEER, ELK, BEAR, AND ALL OTHER ANIMALS, INCLUDING MAN,
WHO ARE DEPENDENT ON IT OR WHO ENJOY IT FOR ITS SIGHT, ITS SOUND, OR
ITS LIFE.  THE RIVER AS PLAINTIFF SPEAKS FOR THE ECOLOGICAL UNIT OF
LIFE THAT IS PART OF IT.  THOSE PEOPLE WHO HAVE A MEANINGFUL RELATION
TO THAT BODY OF WATER-- WHETHER IT BE A FISHERMAN, A CANOEIST, A
ZOOLOGIST, OR A LOGGER-- MUST BE ABLE TO SPEAK FOR THE VALUES WHICH THE
RIVER REPRESENTS AND WHICH ARE THREATENED WITH DESTRUCTION. 

I DO NOT KNOW MINERAL KING.  I HAVE NEVER SEEN IT NOR TRAVELED IT,
THOUGH I HAVE SEEN ARTICLES DESCRIBING ITS PROPOSED "DEVELOPMENT"  /5/
NOTABLY HANO, PROTECTIONISTS VS. RECREATIONISTS-- THE BATTLE OF MINERAL
KING, N.Y. TIMES MAG., AUG. 17, 1969, P. 25; AND BROWNING, MICKEY MOUSE
IN THE MOUNTAINS, HARPER'S MARCH 1972, P. 65.  THE SIERRA CLUB IN ITS
COMPLAINT ALLEGES THAT "(ONE OF THE PRINCIPAL PURPOSES OF THE SIERRA
CLUB IS TO PROTECT AND CONSERVE THE NATIONAL RESOURCES OF THE SIERRA
NEVADA MOUNTAINS."  THE DISTRICT COURT HELD THAT THIS UNCONTESTED
LEGATION MADE THE SIERRA CLUB "SUFFICIENTLY AGGRIEVED" TO HAVE
"STANDING" TO SUE ON BEHALF OF MINERAL KING. 

MINERAL KING IS DOUBTLESS LIKE OTHER WONDERS OF THE SIERRA NEVADA
SUCH AS TUOLUMNE MEADOWS AND THE JOHN MUIR TRAIL.  THOSE WHO HIKE IT,
FISH IT, HUNT IT, CAMP IN IT, FREQUENT IT, OR VISIT IT MERELY TO SIT IN
SOLITUDE AND WONDERMENT ARE LEGITIMATE SPOKESMEN FOR IT, WHETHER THEY
MAY BE FEW OR MANY.  THOSE WHO HAVE THAT INTIMATE RELATION WITH THE
INANIMATE OBJECT ABOUT TO BE INJURED, POLLUTED, OR OTHERWISE DESPOILED
ARE ITS LEGITIMATE SPOKESMEN. 

THE SOLICITOR GENERAL, WHOSE VIEWS ON THIS SUBJECT ARE IN THE
APPENDIX TO THIS OPINION, TAKES A WHOLLY DIFFERENT APPROACH.  HE
CONSIDERS THE PROBLEM IN TERMS OF "GOVERNMENT BY THE JUDICIARY."  WITH
ALL RESPECT, THE PROBLEM IS TO MAKE CERTAIN THAT THE INANIMATE OBJECTS,
WHICH ARE THE VERY CORE OF AMERICA'S BEAUTY, HAVE SPOKESMEN BEFORE THEY
ARE DESTROYED.  IT IS, OF COURSE, TRUE THAT MOST OF THEM ARE UNDER THE
CONTROL OF A FEDERAL OR STATE AGENCY.  THE STANDARDS GIVEN THOSE
AGENCIES ARE USUALLY EXPRESSED IN TERMS OF THE "PUBLIC INTEREST."  YET
"PUBLIC INTEREST" HAS SO MANY DIFFERING SHADES OF MEANING AS TO BE
QUITE MEANINGLESS ON THE ENVIRONMENTAL FRONT.  CONGRESS ACCORDINGLY HAS
ADOPTED ECOLOGICAL STANDARDS IN THE NATIONAL ENVIRONMENTAL POLICY ACT
OF 1969, PUB. L. 91-190, 83 STAT. 852, 42 U.S.C. 4321 ET SEQ., AND
GUIDELINES FOR AGENCY ACTION HAVE BEEN PROVIDED BY THE COUNCIL ON
ENVIRONMENTAL QUALITY OF WHICH RUSSELL E. TRAIN IS CHAIRMAN.  SEE 36
FED.REG.  7724. 

YET THE PRESSURES ON AGENCIES FOR FAVORABLE ACTION ONE WAY OR THE
OTHER ARE ENORMOUS.  THE SUGGESTION THAT CONGRESS CAN STOP ACTION WHICH
IS UNDESIRABLE IS TRUE IN THEORY; YET EVEN CONGRESS IS TOO REMOTE TO
GIVE MEANINGFUL DIRECTION AND ITS MACHINERY IS TOO PONDEROUS TO USE
VERY OFTEN.  THE FEDERAL AGENCIES OF WHICH I SPEAK ARE NOT VENAL OR
CORRUPT.  BUT THEY ARE NOTORIOUSLY UNDER THE CONTROL OF POWERFUL
INTERESTS WHO MANIPULATE THEM THROUGH ADVISORY COMMITTEES, OR FRIENDLY
WORKING RELATIONS, OR WHO HAVE THAT NATURAL AFFINITY WITH THE AGENCY
WHICH IN TIME DEVELOPS BETWEEN THE REGULATOR AND THE REGULATED.  /6/
AS EARLY AS IN 1894, ATTORNEY GENERAL OLNEY PREDICTED THAT REGULATORY
AGENCIES MIGHT BECOME "INDUSTRY-MINDED," AS ILLUSTRATED BY HIS FORECAST
CONCERNING THE INTERSTATE COMMERCE COMMISSION: 

"THE COMMISSION . . . IS, OR CAN BE MADE, OF GREAT USE TO THE
RAILROADS.  IT SATISFIES THE POPULAR CLAMOR FOR A GOVERNMENT
SUPERVISION OF RAILROADS, AT THE SAME TIME THAT THAT SUPERVISION IS
ALMOST ENTIRELY NOMINAL.  FURTHER, THE OLDER SUCH A COMMISSION GETS TO
BE, THE MORE INCLINED IT WILL BE FOUND TO TAKE THE BUSINESS AND
RAILROAD VIEW OF THINGS."  M. JOSEPHSON, THE POLITICOS 526 (1938). 

YEARS LATER A COURT OF APPEALS OBSERVED, "THE RECURRING QUESTION
WHICH HAS PLAGUED PUBLIC REGULATION OF INDUSTRY (IS) WHETHER THE
REGULATORY AGENCY IS UNDULY ORIENTED TOWARD THE INTERESTS OF THE
INDUSTRY IT IS DESIGNED TO REGULATE, RATHER THAN THE PUBLIC INTEREST IT
IS DESIGNED TO PROTECT."  MOSS V. CAB, 139 U.S.APP.D.C. 150, 152, 430
F.2D 891, 893.  SEE ALSO OFFICE OF COMMUNICATION OF THE UNITED CHURCH
OF CHRIST V. FCC, 123 U.S.APP.D.C. 328, 337-338, 359 F.2D 994, 1003
1004; UDALL V. FPC, 387, 387 U.S. 428; CALVERT CLIFFS' COORDINATING
COMMITTEE, INC. V. AEC, 146 U.S.APP.D.C. 33, 449 F.2D 1109;
ENVIRONMENTAL DEFENSE FUND, INC. V. RUCKELSHAUS, 142 U.S.APP.D,C. 74,
439 F.2D 584; ENVIRONMENTAL DEFENSE FUND, INC. V. HEW, 138 U.S.APP.D.C.
381, 428 F.2D 1083; SCENIC HUDSON PRESERVATION CONF. V. FPC, 354 F.2D
608, 620.  BUT SEE JAFFE, THE FEDERAL REGULATORY AGENCIES IN
PERSPECTIVE:  ADMINISTRATIVE LIMITATIONS IN A POLITICAL SETTING, 11
B.C.IND.& COM.L.REV.  565 (1970) (LABELS "INDUSTRY-MINDEDNESS" AS
"DEVIL" THEORY). 

THE FOREST SERVICE-- ONE OF THE FEDERAL AGENCIES BEHIND THE SCHEME
TO DESPOIL MINERAL KING-- HAS BEEN NOTORIOUS FOR ITS ALIGNMENT WITH
LUMBER COMPANIES, ALTHOUGH ITS MANDATE FROM CONGRESS DIRECTS IT TO
CONSIDER THE VARIOUS ASPECTS OF MULTIPLE USE IN ITS SUPERVISION OF THE
NATIONAL FORESTS.  /7/ 

THE VOICE OF THE INANIMATE OBJECT, THEREFORE, SHOULD NOT BE
STILLED.  THAT DOES NOT MEAN THAT THE JUDICIARY TAKES OVER THE
MANAGERIAL FUNCTIONS FROM THE FEDERAL AGENCY.  IT MERELY MEANS THAT
BEFORE THESE PRICELESS BITS OF AMERICANA (SUCH AS A VALLEY, AN ALPINE
MEADOW, A RIVER, OR A LAKE) ARE FOREVER LOST OR ARE SO TRANSFORMED AS
TO BE REDUCED TO THE EVENTUAL RUBBLE OF OUR URBAN ENVIRONMENT, THE
VOICE OF THE EXISTING BENEFICIARIES OF THESE ENVIRONMENTAL WONDERS
SHOULD BE HEARD.  /8/ 

PHERHAPS THEY WILL NOT WIN.  PERHAPS THE BULLDOZERS OF "PROGRESS"
WILL PLOW UNDER ALL THE AESTHETIC WONDERS OF THIS BEAUTIFUL LAND.  THAT
IS NOT THE PRESENT QUESTION.  THE SOLE QUESTION IS, WHO HAS STANDING TO
BE HEARD? 

THOSE WHO HIKE THE APPALACHIAN TRIAL INTO SUNFISH POND, NEW JERSEY,
AND CAMP OR SLEEP THERE, OR RUN THE ALLAGASH IN AMINE, OR CLIMB THE
GUADALUPES IN WEST TEXAS, OR WHO CANOE AND PORTAGE THE QUETICO SUPERIOR
IN MINNESOTA, CERTAINLY SHOULD HAVE STANDING TO DEFEND THOSE NATURAL
WONDERS BEFORE COURTS OR AGENCIES, THOUGH THEY LIVE 3,000 MILES AWAY. 
THOSE WHO MERELY ARE CAUGHT UP IN ENVIRONMENTAL NEWS OR PROPAGANDA AND
FLOCK TO DEFEND THESE WATERS OR AREAS MAY BE TREATED DIFFERENTLY.  THAT
IS WHY THESE ENVIRONMENTAL ISSUES SHOULD BE TENDERED BY THE INANIMATE
OBJECT ITSELF.  THEN THERE WILL BE ASSURANCES THAT ALL OF THE FORMS OF
LIFE /9/  WHICH IT REPRESENTS WILL STAND BEFORE THE COURT-- THE
PILEATED WOODPECKER AS WELL AS THE COYOTE AND BEAR, THE LEMMINGS AS
WELL AS THE TROUT IN THE STREAMS.  THOSE INARTICULATE MEMBERS OF THE
ECOLOGICAL GROUP CANNOT SPEAK.  BUT THOSE PEOPLE WHO HAVE SO FREQUENTED
THE PLACE AS TO KNOW ITS VALUES AND WONDERS WILL BE ABLE TO SPEAK FOR
THE ENTIRE ECOLOGICAL COMMUNITY. 

ECOLOGY REFLECTS THE LAND ETHIC; AND ALDO LEOPOLD WROTE IN A SAND
COUNTY ALMANAC 204 (1949), "THE LAND ETHIC SIMPLY ENLARGES THE
BOUNDARIES OF THE COMMUNITY TO INCLUDE SOILS, WATERS, PLANTS, AND
ANIMALS, OR COLLECTIVELY:  THE LAND." 

THAT, AS I SEE IT, IS THE ISSUE OF "STANDING" IN THE PRESENT CASE
AND CONTROVERSY. 

/1/  SEE GENERALLY DATA PROCESSING SERVICE V. CAMP, 397 U.S. 150
(1970); BARLOW V. COLLINS, 397 U.S. 159 (1970); FLAST V. COHEN, 392
U.S. 83 (1968).  SEE ALSO MR. JUSTICE BRENNAN'S SEPARATE OPINION IN
BARLOW V. COLLINS, SUPRA, AT 167.  THE ISSUE OF STATUTORY STANDING
ASIDE, NO DOUBT EXISTS THAT "INJURY IN FACT" TO "AESTHETIC" AND
"CONSERVATIONAL" INTERESTS IS HERE SUFFICIENTLY THREATENED TO SATISFY
THE CASE-OR-CONTROVERSY CLAUSE.  DATA PROCESSING SERVICE V. CAMP,
SUPRA, AT 154. 

/2/  IN REM ACTIONS BROUGHT TO ADJUDICATE LIBELANTS' INTERESTS IN
VESSELS ARE WELL KNOWN IN ADMIRALTY.  G. GILMORE & C. BLACK, THE LAW OF
ADMIRALTY 31 (1957).  BUT ADMIRALTY ALSO PERMITS A SALVAGE ACTION TO BE
BROUGHT IN THE NAME OF THE RESCUING VESSEL.  THE CAMANCHE, 8 WALL. 
448, 476 (1869).  AND, IN COLLISION LITIGATION, THE FIRST-LIBELED SHIP
MAY COUNTERCLAIM IN ITS OWN NAME.  THE GYLFE V. THE TRUJILLO, 209 F.2D
386 (CA2 1954).  OUR CASE LAW HAS PERSONIFIED VESSELS: 

"A SHIP IS BORN WHEN SHE IS LAUNCHED, AND LIVES SO LONG AS HER
IDENTITY IS PRESERVED.  PRIOR TO HER LAUNCHING SHE IS A MERE CONGERIES
OF WOOD AND IRON . . . . IN THE BAPTISM OF LAUNCHING SHE RECEIVES HER
NAME, AND FROM THE MOMENT HER KEEL TOUCHES THE WATER SHE IS TRANSFORMED
. . . . SHE ACQUIRES A PERSONALITY OF HER OWN."  TUCKER V. ALEXANDROFF,
183 U.S. 424, 438. 

/3/  AT COMMON LAW, AN OFFICEHOLDER, SUCH AS A PRIEST OR THE KING,
AND HIS SUCCESSORS CONSTITUED A CORPORATION SOLE, A LEGAL ENTITY
DISTINCT FROM THE PERSONALITY WHICH MANAGED IT.  RIGHTS AND DUTIES WERE
DEEMED TO ADHERE TO THIS DEVICE RATHER THAN TO THE OFFICEHOLDER IN
ORDER TO PROVIDE CONTINUITY AFTER THE LATTER RETIRED.  THE NOTION IS
OCCASIONALLY REVIVED BY AMERICAN COURTS.  E.G., REID V. BARRY, 93 FLA.
849, 112 SO. 846 (1927), DISCUSSED IN RECENT CASES, 12 MINN.L.REV.  295
(1928), AND IN NOTE, 26 MICH.L.REV.  545 (1928); SEE GENERALLY 1
W.FLETCHER, CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS 50-53 (1963);
1 P.POTTER, LAW OF CORPORATIONS 27 (1881). 

/4/  EARLY JURISTS CONSIDERED THE CONVENTIONAL CORPORATION TO BE A
HIGHLY ARITIFICIAL ENTITY.  LORD COKE OPINED THAT A CORPORATION'S
CREATION "RESTS ONLY IN INTENDMENT AND CONSIDERATION OF THE LAW."  CASE
OF SUTTON'S HOSPITAL, 77 ENG.REP.  937, 973 (K.B. 1612).  MR. CHIEF
JUSTICE MARSHALL ADDED THAT THE DEVICE IS "AN ARTIFICIAL BEING,
INVISIBLE, INTANGIBLE, AND EXISTING ONLY IN CONTEMPLATION OF LAW." 
TRUSTEES OF DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518, 638 (1819). 
TODAY, SUITS IN THE NAMES OF CORPORATIONS ARE TAKEN FOR GRANTED. 

/5/ ALTHOUGH IN THE PAST MINERAL KING VALLEY HAS ANNUALLY SUPPLIED
ABOUT 70,000 VISITOR-DAYS OF SIMPLER AND MORE RUSTIC FORMS OF
RECREATION-- HIKING, CAMPING, AND SKIING (WITHOUT LIFTS)-- THE FOREST
SERVICE IN 1949 AND AGAIN IN 1965 INVITED DEVELOPERS TO SUBMIT
PROPOSALS TO "IMPROVE" THE VALLEY FOR RESORT USE.  WALT DISNEY
PRODUCTIONS WON THE COMPETITION AND TRANSFORMED THE SERVICE'S IDEA INTO
A MAMMOTH PROJECT 10 TIMES ITS ORIGINALLY PROPOSED DIMENSIONS.  FOR
EXAMPLE, WHILE THE FOREST SERVICE PROSPECTUS CALLED FOR AN INVESTMENT
OF AT LEAST $3 MILLION AND A SLEEPING CAPACITY OF AT LEAST 100, DISNEY
WILL SPEND $35.3 MILLION AND WILL BED DOWN 3,300 PERSONS BY 1978. 
DISNEY ALSO PLANS A NINE-LEVEL PARKING STRUCTURE WITH TWO SUPPLEMENTAL
LOTS FOR AUTOMOBILES, 10 RESTAURANTS AND 20 SKI LIFTS.  THE SERVICE'S
ANNUAL LICENSE REVENUE IS HITCHED TO DISNEY'S PROFITS.  UNDER DISNEY'S
PROJECTIONS, THE VALLEY WILL BE FORCED TO ACCOMMODATE A TOURIST
POPULATION TWICE AS DENSE AS THAT IN YOSEMITE VALLEY ON A BUSY DAY. 
AND, ALTHOUGH DISNEY HAS BOUGHT UP MUCH OF THE PRIVATE LAND NEAR THE
PROJECT, ANOTHER COMMERCIAL FIRM PLANS TO TRANSFORM AN ADJOINING 160
ACRE PARCEL INTO A "PIGGYBACK" RESORT COMPLEX, FURTHER ADDING TO THE
VOLUME OF HUMAN ACTIVITY THE VALLEY MUST ENDURE.  SEE GENERALLY NOTE,
MINERAL KING VALLEY:  WHO SHALL WATCH THE WATCHMEN?, 25 RUTGERS L.REV. 
103, 107 (1970); THAR'S GOLD IN THOSE HILLS, 206 THE NATION 260
(1968).  FOR A GENERAL CRITIQUE OF MASS RECREATION ENCLAVES IN NATIONAL
FORESTS SEE CHRISTIAN SCIENCE MONITOR, NOV. 22, 1965, P. 5, COL. 1
(WESTERN ED.).  MICHAEL FROME CAUTIONS THAT THE NATIONAL FORESTS ARE
"FRAGILE" AND "DETERIORATE RAPIDLY WITH EXCESSIVE RECREATION USE:
BECAUSE "(THE TRAMPLING EFFECT ALONE ELIMINATES VEGETATIVE GROWTH,
CREATING EROSION AND WATER RUNOFF PROBLEMS.  THE CONCENTRATION OF
PEOPLE, PARTICULARLY IN HORSE PARTIES, ON EXCESSIVELY STEEP SLOPES THAT
FOLLOW OLD INDIAN OR CATTLE ROUTES, HAS TORN UP THE LANDSCAPE OF THE
HIGH SIERRAS IN CALIFORNIA AND SENT TONS OF WILDERNESS SOIL WASHING
DOWNSTREAM EACH YEAR."  M. FROME, THE FOREST SERVICE 69 (1971). 

/6/  THE FEDERAL BUDGET ANNUALLY INCLUDES ABOUT $75 MILLION FOR
UNDERWRITING ABOUT 1,500 ADVISORY COMMITTEES ATTACHED TO VARIOUS
REGULATORY AGENCIES.  THESE GROUPS ARE ALMOST EXCLUSIVELY COMPOSED OF
INDUSTRY REPRESENTATIVES APPOINTED BY THE PRESIDENT OR BY CABINET
MEMBERS.  ALTHOUGH PUBLIC MEMBERS MAY BE ON THESE COMMITTEES, THEY ARE
RARELY ASKED TO SERVE.  SENATOR LEE METCALF WARNS:  "INDUSTRY ADVISORY
COMMITTEES EXIST INSIDE MOST IMPORTANT FEDERAL AGENCIES, AND EVEN HAVE
OFFICES IN SOME.  LEGALLY, THEIR FUNCTION IS PURELY AS KIBITZER, BUT IN
PRACTICE MANY HAVE BECOME INTERNAL LOBBIES-- PRINTING INDUSTRY HANDOUTS
IN THE GOVERNMENT PRINTING OFFICE WITH TAXPAYERS' MONEY, AND EVEN
INFLUENCING POLICIES.  INDUSTRY COMMITTEES PERFORM THE DUAL FUNCTION OF
STOPPING GOVERNMENT FROM FINDING OUT ABOUT CORPORATIONS WHILE AT THE
SAME TIME HELPING CORPORATIONS GET INSIDE INFORMATION ABOUT WHAT
GOVERNMENT IS DOING.  SOMETIMES, THE SAME COMPANY THAT SITS ON AN
ADVISORY COUNCIL THAT OBSTRUCTS OR TURNS DOWN A GOVERNMENT
QUESTIONNAIRE IS PRECISELY THE COMPANY WHICH IS WITHHOLDING INFORMATION
THE GOVERNMENT NEEDS IN ORDER TO ENFORCE A LAW."  METCALF, THE VESTED
ORACLES:  HOW INDUSTRY REGULATES GOVERNMENT, 3 THE WASHINGTON MONTHLY,
JULY 1971, P. 45.  FOR PROCEEDINGS CONDUCTED BY SENATOR METCALF
EXPOSING THESE RELATIONSHIPS SEE HEARINGS ON S. 3067 BEFORE THE
SUBCOMMITTEE ON INTERGOVERNMENTAL RELATIONS OF THE SENATE COMMITTEE ON
GOVERNMENT OPERATIONS, 91ST CONG., 2D SESS. (1970); HEARINGS ON S.
1637, S. 1964, AND S. 2064 BEFORE THE SUBCOMMITTEE ON INTERGOVERNMENTAL
RELATIONS OF THE SENATE COMMITTEE ON GOVERNMENT OPERATIONS, 92D CONG.,
1ST SESS. (1971).     THE WEB SPUN ABOUT ADMINISTRATIVE AGENCIES BY
INDUSTRY REPRESENTATIVES DOES NOT DEPEND, OF COURSE, SOLEY UPON
ADVISORY COMMITTEES FOR EFFECTIVENESS.  SEE ELMAN, ADMINISTRATIVE
REFORM OF THE FEDERAL TRADE COMMISSION, 59 GEO.L.J. 777, 788 (1971);
JOHNSON A NEW FIDELITY TO THE REGULATORY IDEAL, 59 GEO.L.J. 869, 874,
906 (1971); R. BERKMAN & K. VISCUSI, DAMMING THE WEST, THE RALPH NADER
STUDY GROUP REPORT ON THE BUREAU OF RECLAMATION 155 (1971); R.
FELLMETH, THE INTERSTATE COMMERCE OMISSION, THE RALPH NADER STUDY GROUP
REPORT ON THE INTERSTATE COMMERCE COMMISSION AND TRANSPORTATION 15-39
AND PASSIM (1970); J. TURNER, THE CHEMICAL FEAST, THE RALPH NADER STUDY
GROUP REPORT ON FOOD PROTECTION AND THE FOOD AND DRUG ADMINISTRATION
PASSIM (1970); MASSEL, THE REGULATORY PROCESS, 26 LAW & CONTEMP.PROB. 
181, 189 (1961); J. LANDIS, REPORT ON REGULATORY AGENCIES TO THE
PRESIDENT-ELECT 13, 69 (1960). 

/7/  THE FOREST RESERVE ACT OF 1897, 30 STAT. 35, 16 U.S.C. 551,
IMPOSED UPON THE SECRETARY OF THE INTERIOR THE DUTY TO "PRESERVE THE
(NATIONAL) FORESTS . . . FROM DESTRUCTION" BY REGULATING THEIR
"OCCUPANCY AND USE."  IN 1905 THESE DUTIES AND POWERS WERE TRANSFERRED
TO THE FOREST SERVICE CREATED WITHIN THE DEPARTMENT OF AGRICULTURE BY
THE ACT OF FEB. 1, 1905, 33 STAT. 628, 16 U.S.C. 472.  THE PHRASE
"OCCUPANCY AND USE: HAS BEEN THE CORNERSTONE FOR THE CONCEPT OF
"MULTIPLE USE" OF NATIONAL FORESTS, THAT IS, THE POLICY THAT USES OTHER
THAN LOGGING WERE ALSO TO BE TAKEN INTO CONSIDERATION IN MANAGING OUR
154 NATIONAL FORESTS.  THIS POLICY WAS MADE MORE EXPLICIT BY THE
MULTIPLE-USE SUSTAINED-YIELD ACT OF 1960, 74 STAT. 215, 16 U.S.C. 528
531, WHICH PROVIDES THAT COMPETING CONSIDERATIONS SHOULD INCLUDE
OUTDOOR RECREATION, RANGE, TIMBER, WATERSHED, WILDLIFE, AND FISH
PURPOSES.  THE FOREST SERVICE, INFLUENCED BY POWERFUL LOGGING
INTERESTS, HAS, HOWEVER, PAID ONLY LIP SERVICE TO ITS MULTIPLE-USE
MANDATE AND HAS AUCTIONED AWAY MILLIONS OF TIMBERLAND ACRES WITHOUT
CONSIDERING ENVIRONMENTAL OR CONSERVATIONAL INTERESTS.  THE IMPORTANCE
OF NATIONAL FORESTS TO THE CONSTRUCTION AND LOGGING INDUSTRIES RESULTS
FROM THE TYPE OF LUMBER GROWN THEREIN WHICH IS WELL SUITED TO BUILDERS'
NEEDS.  FOR EXAMPLE, WESTERN ACREAGE PRODUCES DOUGLAS FIR (STRUCTURAL
SUPPORT) AND PONDEROSA PINE (PLYWOOD LAMINATION.)  IN ORDER TO PRESERVE
THE TOTAL ACREAGE AND SO-CALLED "MATURITY" OF TIMBER, THE ANNUAL SIZE
OF A FOREST SERVICE HARVEST IS SUPPOSEDLY EQUATED WITH EXPECTED YEARLY
REFORESTATION.  NONETHELESS, YEARLY CUTS HAVE INCREASED FROM 5.6
BILLION BOARD FEET IN 1950 TO 13.74 BILLION IN 1971.  FORESTRY
PROFESSIONALS CHALLENGE THE SERVICE'S EXPLANATION THAT THIS HARVEST
INCREASE 240% IS NOT REALLY OVERCUTTING BUT INSTEAD HAS RESULTED FROM
ITS IMPROVED MANAGEMENT OF TIMBERLANDS.  "IMPROVED MANAGEMENT," ANSWER
THE CRITICS, IN ONLY A EUPHEMISM FOR EXAGGERATED REGROWTH FORECASTS BY
THE SERVICE.  N.Y. TIMES, NOV. 15, 1971, P. 48, COL. 1.  RECENT RISES
IN LUMBER PRICES HAVE CAUSED A NEW ROUND OF INDUSTRY PRESSURE TO
AUCTION MORE FEDERALLY OWNED TIMBER.  SEE WAGNER, RESOURCES
REPORT/LUMBERMEN, CONSERVATIONISTS HEAD FOR NEW BATTLE OVER GOVERNMENT
TIMBER, 3 NATIONAL J. 657 (1971). 

ASIDE FROM THE ISSUE OF HOW MUCH TIMBER SHOULD BE CUT ANNUALLY,
ANOTHER CRUCIAL QUESTION IS HOW LUMBER SHOULD BE HARVESTED.  DESPITE
MUCH CRITICISM, THE FOREST SERVICE HAD ADHERED TO A POLICY OF
PERMITTING LOGGING COMPANIES TO "CLEARCUT" TRACTS OF AUCTIONED
ACREAGE.  "CLEARCUTTING," SOMEWHAT ANALOGOUS TO STRIP MINING, IS THE
INDISCRIMINATE AND COMPLETE SHAVING FROM THE EARTH OF ALL TREES--
REGARDLESS OF SIZE OR AGE-- OFTEN ACROSS HUNDREDS OF CONTIGUOUS ACRES. 

OF CLEARCUTTING, SENATOR GALE MCGEE, A LEADNG ANTAGONIST OF FOREST
SERVICE POLICY, COMPLAINS:  "THE FOREST SERVICE'S MANAGEMENT POLICIES
ARE WREAKING HAVOC WITH THE ENVIRONMENT.  SOIL IS ERODING,
REFORESTATION IS NEGLECTED IF NOT IGNORED, STREAMS ARE SILTING, AND
CLEARCUTTING REMAINS A BASIC PRACTICE."  N.Y. TIMES, NOV. 14, 1971, P.
60, COL. 2.  HE ADDS:  "IN WYOMING . . . THE FOREST SERVICE IS VERY
MUCH . . . NURSEMAID . . . TO THE LUMBER INDUSTRY . . . . "  HEARINGS
ON MANAGEMENT PRACTICES ON THE PUBLIC LANDS BEFORE THE SUBCOMMITTEE ON
PUBLIC LANDS OF THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,
PT. 1, P. 7 (1971). 

SENATOR JENNINGS RANDOLPH OFFERS A SIMILAR CRITICISM OF THE LEVELING
BY LUMBER COMPANIES OF LARGE PORTIONS OF THE MONONGAHELA NATIONAL
FOREST IN WEST VIRGINIA.  ID., AT 9.  SEE ALSO 116 CONG.REC.  36971
(REPRINTED SPEECH OF SEN. JENNINGS RANDOLPH CONCERNING FOREST SERVICE
POLICY IN MONONGAHELA NATIONAL FOREST).  TO INVESTIGATE SIMILAR
CONTROVERSY SURROUNDING THE SERVICE'S MANAGEMENT OF THE BITTERROOT
NATIONAL FOREST IN MONTANA, SENATOR LEE METCALF RECENTLY ASKED FORESTRY
PROFESSIONALS AT THE UNIVERSITY OF MONTANA TO STUDY LOCAL HARVESTING
PRACTICES.  THE FACULTY GROUP CONCLUDED THAT PUBLIC DISSATISFACTION HAD
ARISEN FROM THE FORSST SERVICE'S "OVERRIDING CONCERN FOR SAWTIMBER
PRODUCTION" AND ITS "INSENSITIVITY TO RELATED FOREST USES AND TO THE .
. . PUBLIC'S INTEREST IN ENVIRONMENTAL VALUES."  S. DOC. NO. 91-115, P.
14 (1970).  SEE ALSO BEHAN, TIMBER MINING:  ACCUSATION OF PROSPECT?,
AMERICAN FORESTS, NOV. 1971, P. 4 (ADDITIONAL COMMENTS OF FACULTY
PARTICIPANT); REICH, THE PUBLIC AND THE NATION'S FORESTS, 50
CALIF.L.REV.  381-400 (1962). 

FORMER SECRETARY OF THE INTERIOR WALTER HICKEL SIMILARLY FAULTED
CLEARCUTTING AS EXCUSABLE ONLY AS A MONEY-SAVING HARVESTING PRACTICE
FOR LARGE LUMBER CORPORATIONS.  W. HICKEL, WHO OWNS AMERICA?  130
(1971).  SEE ALSO RISSER, THE U.S. FOREST SERVICE:  SMOKEY'S STRIP
MINERS, 3 THE WASHINGTON MONTHLY, DEC. 1971, P. 16.  AND AT LEAST ONE
FOREST SERVICE STUDY TEAM SHARES SOME OF THESE CRITICISMS OF
CLEARCUTTING.  U.S. DEPT. OF AGRICULTURE, FOREST MANAGEMENT IN WYOMING
12 (1971).  SEE ALSO PUBLIC LAND LAW REVIEW COMM'N, REPORT TO THE
PRESIDENT AND TO THE CONGRESS 44 (1970); CHAPMAN, EFFECTS OF LOGGING
UPON FISH RESOURCES OF THE WEST COAST, 60 J.OF FORESTRY 533 (1962). 

A THIRD CATEGORY OF CRITICISM RESULTS FROM THE SERVICE'S HUGE
BACKLOG OF DELAYED REFORESTATION PROJECTS.  IT IS TRUE THAT CONGRESS
HAS UNDERFUNDED REPLANTING PROGRAMS OF THE SERVICE BUT IT IS ALSO TRUE
THAT THE SERVICE AND LUMBER COMPANIES HAVE REGULARLY ENSURED THAT
CONGRESS FULLY FUNDS BUDGETS REQUESTED FOR THE FOREST SERVICE'S "TIMBER
SALES AND MANAGEMENT."  M. FROME, THE ENVIRONMENT AND TIMBER RESOURCES,
IN WHAT'S AHEAD FOR OUR PUBLIC LANDS?  23, 24 (H. PYLES ED. 1970). 

/8/  PERMITTING A COURT TO APPOINT A REPRESENTATIVE OF AN INANIMATE
OBJECT WOULD NOT BE SIGNIFICANTLY DIFFERENT FROM CUSTOMARY JUDICIAL
APPOINTMENTS OF GUARDIANS AD LITEM, EXECUTORS, CONSERVATORS, RECEIVERS,
OR COUNSEL FOR INDIGENTS. 

THE VALUES THAT RIDE ON DECISIONS SUCH AS THE PRESENT ONE ARE OFTEN
NOT APPRECIATED EVEN BY THE SO-CALLED EXPERTS. 

"A TEASPOON OF LIVING EARTH CONTAINS 5 MILLION BACTERIA, 20 MILLION
FUNGI, ONE MILLION PROTOZOA, AND 200,000 ALGAE.  NO LIVING HUMAN CAN
PREDUCT WHAT VITAL MIRACLES MAY BE LOCKED IN THIS DAB OF LIFE, THIS
STUPENDOUS RESERVOIR OF GENETIC MATERIALS THAT HAVE EVOLVED
CONTINUOUSLY SINCE THE DAWN OF THE EARTH.  FOR EXAMPLE, MOLDS HAVE
EXISTED ON EARTH FOR ABOUT 2 BILLION YEARS.  BUT ONLY IN THIS CENTURY
DID WE UNLOCK THE SECRET OF THE PENICILLINS, TETRACYCLINES, AND OTHER
ANTIBIOTICS FROM THE LOWLY MOLDS, AND THUS FASHION THE MOST POWERFUL
AND EFFECTIVE MEDICINES EVER DISCOVERED BY MAN.  MEDICAL SCIENTISTS
STILL WINCE AT THE THOUGHT THAT WE MIGHT HAVE INADVERTENTLY WIPED OUT
THE RHESUS MONKEY, MEDICALLY, THE MOST IMPORTANT RESEARCH ANIMAL ON
EARTH.  AND WHO KNOWS WHAT REVELATIONS MIGHT LIE IN THE CELLS OF THE
BLACKBACK GORILLA NESTING IN HIS EYRIE THIS MOMENT IN THE VIRUNGA
MOUNTS OF RWANDA?  AND WHAT MIGHT WE HAVE LEARNED FROM THE EUROPEAN
LION, THE FIRST SPECIES FORMALLY NOTED (IN 80 A.D.)  AS EXTINCT BY THE
ROMANS? 

"WHEN A SPECIES IS GONE, IT IS GONE FOREVER.  NATURE'S GENETIC
CHAIN, BILLIONS OF YEARS IN THE MAKING, IS BROKEN FOR ALL TIME." 
CONSERVE-- WATER, LAND AND LIFE, NOV. 1971, P. 4. 

ALDO LEOPOLD WROTE IN ROUND RIVER 147 (1953): 

"IN GERMANY THERE IS A MOUNTAIN CALLED THE SPESSART.  ITS SOUTH
SLOPE BEARS THE MOST MAGNIFICENT OAKS IN THE WORLD.  AMERICAN
CABINETMAKERS, WHEN THEY WANT THE LAST WORD IN QUALITY, USE SPESSART
OAK.  THE NORTH SLOPE, WHICH SHOULD BE THE BETTER, BEARS AN INDIFFERENT
STAND OF SCOTCH PINE.  WHY?  BOTH SLOPES ARE PART OF THE SAME STATE
FOREST; BOTH HAVE BEEN MANAGED WITH EQUALLY SCRUPULOUS CARE FOR TWO
CENTURES.  WHY THE DIFFERENCE? 

"KICK UP THE LITTER UNDER THE OAKS AND YOU WILL SEE THAT THE LEAVES
ROT ALMOST AS FAST AS THEY FALL.  UNDER THE PINES, THOUGH, THE NEEDLES
PILE UP AS A THICK DUFF; DECAY IS MUCH SLOWER.  WHY?  BECAUSE IN THE
MIDDLE AGES THE SOUTH SLOPE WAS PRESERVED AS A DEER FOREST BY A HUNTING
BISHOP; THE NORTH SLOPE WAS PASTURED, PLOWED, AND CUT BY SETTLERS, JUST
AS WE DO WITH OUR WOODLOTS IN WISCONSIN AND IOWA TODAY.  ONLY AFTER
THIS PERIOD OF ABUSE WAS THE NORTH SLOPE REPLANTED TO PINES.  DURING
THIS PERIOD OF ABUSE SOMETHING HAPPENED TO THE MICROSCOPIC FLORA AND
FAUNA OF THE SOIL.  THE NUMBER OF SPECIES WAS GREATLY REDUCED, I.E.,
THE DIGESTIVE APPARATUS OF THE SOIL LOST SOME OF ITS PARTS.  TWO
CENTURES OF CONSERVATION HAVE NOT SUFFICED TO RESTORE THESE LOSSES.  IT
REQUIRED THE MODERN MICROSCOPE, AND A CENTURY OF RESEARCH IN SOIL
SCIENCE, TO DISCOVER THE EXISTENCE OF THESE 'SMALL COGS AND WHEELS'
WHICH DETERMINE HARMONY OR DISHARMONY BETWEEN MEN AND LAND IN THE
SPESSART." 

/9/  SENATOR CRANSTON HAS INTRODUCED A BILL TO ESTABLISH A 35,000
ACRE PUPFISH NATIONAL MONUMENT TO HONOR PUPFISH WHICH ARE ONE INCH LONG
AND ARE USELESS TO MAN.  S. 2141, 92D CONG., 1ST SESS.  THEY ARE TOO
SMALL TO EAT AND UNFIT FOR A HOME AQUARIUM.  BUT AS MICHAEL FROME HAS
SAID: 

"STILL, I AGREE WITH SENATOR CRANSTON THAT SAVING THE PUPFISH WOULD
SYMBOLIZE OUR APPRECIATION OF DIVERSITY IN GOD'S TIRED OLD BIOSPHERE,
THE QUALITIES WHICH HOLD IT TOGETHER AND THE INTERACTION OF LIFE
FORMS.  WHEN FISHERMEN RISE UP UNITED TO SAVE THE PUPFISH THEY CAN SAVE
THE WORLD AS WELL."  FIELD & STREAM, DEC. 1971, P. 74. 

        APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING

        EXTRACT FROM ORAL ARGUMENT OF THE SOLICITOR GENERAL  /1/

        .          .      .          . 

"AS FAR AS I KNOW, NO CASE HAS YET BEEN DECIDED WHICH HOLDS THAT A
PLAINTIFF WHICH MERELY ASSERTS THAT, TO QUOTE FROM THE COMPLAINT HERE,
ITS INTEREST WOULD BE WIDELY AFFECTED (AND THAT 'IT WOULD BE AGGRIEVED'
BY THE ACTS OF THE DEFENDANT, HAS STANDING TO RAISE LEGAL QUESTIONS IN
COURT. 

"BUT WHY NOT?  DO NOT THE COURTS EXIST TO DECIDE LEGAL QUESTIONS? 
AND ARE THEY NOT THE MOST IMPARTIAL AND LEARNED AGENCIES THAT WE HAVE
IN OUR GOVERNMENTAL SYSTEM?  ARE THERE NOT MANY QUESTIONS WHICH MUST BE
DECIDED BY THE COURTS?  WHY SHOULD NOT THE COURTS DECIDE ANY QUESTION
WHICH ANY CITIZEN WANTS TO RAISE? 

"AS THE TENOR OF MY ARGUMENT INDICATES, THIS RAISES I THINK, A TRUE
QUESTION, PERHAPS A SOMEWHAT NOVEL QUESTION, IN THE SEPARATION OF
POWERS.  . . . 

"OURS IS NOT A GOVERNMENT BY THE JUDICIARY.  IT IS A GOVERNMENT OF
THREE BRANCHES, EACH OF WHICH WAS INTENDED TO HAVE BROAD AND EFFECTIVE
POWERS SUBJECT TO CHECKS AND BALANCES.  IN LITIGABLE CASES, THE COURTS
HAVE GREAT AUTHORITY.  BUT THE FOUNDERS ALSO INTENDED THAT THE CONGRESS
SHOULD HAVE WIDE POWERS, AND THAT THE EXECUTIVE BRANCH SHOULD HAVE WIDE
POWERS. 

"ALL THESE OFFICERS HAVE GREAT RESPONSIBILITIES.  THEY ARE NOT LESS
SWORN THAN ARE THE MEMBERS OF THIS COURT TO UPHOLD THE CONSTITUTION OF
THE UNITED STATES. 

"THIS, I SUBMIT, IS WHAT REALLY LIES BEHIND THE STANDING DOCTRINE,
EMBODIED IN THOSE CRYPTIC WORDS 'CASE' AND 'CONTROVERSY' IN ARTICLE III
OF THE CONSTITUTION. 

"ANALYTICALLY ONE COULD HAVE A SYSTEM OF GOVERNMENT IN WHICH EVERY
LEGAL QUESTION ARISING IN THE CORE OF GOVERNMENT WOULD BE DECIDED BY
THE COURTS.  IT WOULD NOT BE, I SUBMIT, A GOOD SYSTEM. 

"MORE IMPORTANT, IT IS NOT THE SYSTEM WHICH WAS ORDAINED AND
ESTABLISHED IN IN OUR CONSTITUTION, AS IT HAS BEEN UNDERSTOOD FOR
NEARLY 200 YEARS. 

"OVER THE PAST 20 OR 25 YEARS, THERE HAS BEEN A GREAT SHIFT IN THE
DECISION OF LEGAL QUESTIONS IN OUR GOVERNMENTAL OPERATIONS INTO THE
COURTS.  THIS HAS BEEN THE RESULT OF CONTINUOUS WHITTLING AWAY OF THE
NUMEROUS DOCTRINES WHICH HAVE BEEN ESTABLISHED OVER THE YEARS, DESIGNED
TO MINIMIZE THE NUMBER OF GOVERNMENTAL QUESTIONS WHICH IT WAS THE
RESPONSIBILITY OF THE COURTS TO CONSIDER. 

"I'VE ALREADY MENTIONED THE MOST ANCIENT OF ALL: CASE OR
CONTROVERSY, WHICH WAS EARLY RELIED ON TO PREVENT THE PRESENTATION OF
FEIGNED ISSUES TO THE COURT. 

"BUT THERE ARE MANY OTHER DOCTRINES, WHICH I CANNOT GO INTO IN
DETAIL:  REVIEWABILITY, JUSTICIABILITY, SOVEREIGN IMMUNITY, MOOTNESS IN
VARIOUS ASPECTS, STATUTES OF LIMITATIONS AND LACHES, JURISDICTIONAL
AMOUNT, REAL PARTY IN INTEREST, AND VARIOUS QUESTIONS IN RELATION TO
JOINDER. 

"UNDER ALL OF THESE HEADINGS, LIMITATIONS WHICH PREVIOUSLY EXISTED
TO MINIMIZE THE NUMBER OF QUESTIONS DECIDED IN COURTS, HAVE BROKEN DOWN
IN VARYING DEGREES.     "I MIGHT ALSO MENTION THE EXPLOSIVE DEVELOPMENT
OF CLASS ACTIONS, WHICH HAS THROWN MORE AND MORE ISSUES INTO THE
COURTS. 

        .          .          .          . 

"IF THERE IS STANDING IN THIS CASE, I FIND IT VERY DIFFICULT TO
THINK OF ANY LEGAL ISSUE ARISING IN GOVERNMENT WHICH WILL NOT HAVE TO
AWAIT ONE OR MORE DECISIONS OF THE COURT BEFORE THE ADMINISTRATOR,
SWORN TO UPHOLD THE LAW, CAN TAKE ANY ACTION.  I'M NOT SURE THAT THIS
IS GOOD FOR THE GOVERNMENT.  I'M NOT SURE THAT IT'S GOOD FOR THE
COURTS.  I DO FIND MYSELF MORE AND MORE SURE THAT IT IS NOT THE KIND OF
ALLOCATION OF GOVERNMENTAL POWER IN OUR TRIPARTITE CONSTITUTIONAL
SYSTEM THAT WAS CONTEMPLATED BY THE FOUNDERS. 

        .          .          .          . 

"I DO NOT SUGGEST THAT THE ADMINISTRATORS CAN ACT AT THEIR WHIM AND
WITHOUT ANY CHECK AT ALL.  ON THE CONTRARY, IN THIS AREA THEY ARE
SUBJECT TO CONTINUOUS CHECK BY THE CONGRESS.  CONGRESS CAN STOP THIS
DEVELOPMENT ANY TIME IT WANTS TO." 

/1/  TR. OF ORAL ARG. 31-35. 

MR. JUSTICE BRENNAN, DISSENTING. 

I AGREE THAT THE SIERRA CLUB HAS STANDING FOR THE REASONS STATED BY
MY BROTHER BLACKMUN IN ALTERNATIVE NO. 2 OF HIS DISSENT.  I THEREFORE
WOULD REACH THE MERITS.  SINCE THE COURT DOES NOT DO SO, HOWEVER, I
SIMPLY NOTE AGREEMENT WITH MY BROTHER BLACKMUN THAT THE MERITS ARE
SUBSTANTIAL. 

MR. JUSTICE BLACKMUN, DISSENTING. 

THE COURT'S OPINION IS A PRACTICAL ONE ESPOUSING AND ADHERING TO
TRADITIONAL NOTIONS OF STANDING AS SOMEWHAT MODERNIZED BY DATA
PROCESSING SERVICE V. CAMP, 397 U.S. 150 (1970); BARLOW V. COLLINS, 397
U.S. 159 (1970); AND FLAST V. COHEN, 392 U.S. 83 (1968).  IF THIS WERE
AN ORDINARY CASE, I WOULD JOIN THE OPINION AND THE COURT'S JUDGMENT AND
BE QUITE CONTENT. 

BUT THIS IS NOT ORDINARY, RUN-OF-THE-MILL LITIGATION.  THE CASE
POSES-- IF ONLY WE CHOOSE TO ACKNOWLEDGE AND REACH THEM-- SIGNIFICANT
ASPECTS OF A WIDE, GROWING, AND DISTURBING PROBLEM, THAT IS, THE
NATION'S AND THE WORLD'S DETERIORATING ENVIRONMENT WITH ITS RESULTING
ECOLOGICAL DISTURBANCES.  MUST OUR LAW BE SO RIGID AND OUR PROCEDURAL
CONCEPTS SO INFLEXIBLE THAT WE RENDER OURSELVES HELPLESS WHEN THE
EXISTING METHODS AND THE TRADITIONAL CONCEPTS DO NOT QUITE FIT AND DO
NOT PROVE TO BE ENTIRELY ADEQUATE FOR NEW ISSUES? 

THE ULTIMATE RESULT OF THE COURT'S DECISION TODAY, I FEAR, AND SADLY
SO, IS THAT THE 35.3-MILLION-DOLLAR COMPLEX OVER 10 TIMES GREATER THAN
THE FOREST SERVICE'S SUGGESTED MINIMUM, WILL NOW HASTILY PROCEED TO
COMPLETION; THAT SERIOUS OPPOSITION TO IT WILL RECEDE IN
DISCOURAGEMENT; AND THAT MINERAL KING, THE "AREA OF GREAT NATURAL
BEAUTY NESTLED IN THE SIERRA NEVADA MOUNTAINS," TO USE THE COURT'S
WORDS, WILL BECOME DEFACED, AT LEAST IN PART, AND LIKE SO MANY OTHER
AREAS, WILL CEASE TO BE "UNCLUTTERED BY THE PRODUCTS OF CIVILIZATION." 

I BELIEVE THIS WILL COME ABOUT BECAUSE:  (A) THE DISTRICT COURT,
ALTHOUGH IT ACCEPTED STANDING FOR THE SIERRA CLUB AND GRANTED
PRELIMINARY INJUNCTIVE RELIEF, WAS REVERSED BY THE COURT OF APPEALS,
AND THIS COURT NOW UPHOLDS THAT REVERSAL.  (2) WITH THE REVERSAL,
INTERIM RELIEF BY THE DISTRICT COURT IS NOW OUT OF THE QUESTION AND A
PERMANENT INJUNCTION BECOMES MOST UNLIKELY.  (3) THE SIERRA CLUB MAY
NOT CHOOSE TO AMEND ITS COMPLAINT OR, IF IT DOES DESIRE TO DO SO, MAY
NOT, AT THIS LATE DATE, BE GRANTED PERMISSION.  (4) THE EVER-PRESENT
PRESSURE TO GET THE PROJECT UNDER WAY WILL MOUNT.  (5) ONCE UNDER WAY,
ANY PROSPECT OF BRINGING IT TO A HALF WILL GROW DIM.  REASONS, MOST OF
THEM ECONOMIC, FOR NOT STOPPING THE PROJECT WILL HAVE A TENDENCY TO
MULTIPLY.  AND THE IRREPARABLE HARM WILL BE LARGELY INFLICTED IN THE
EARLIER STAGES OF CONSTRUCTION AND DEVELOPMENT. 

RATHER THAN PURSUE THE COURSE THE COURT HAS CHOSEN TO TAKE BY ITS
AFFIRMANCE OF THE JUDGMENT OF THE COURT OF APPEALS, I WOULD ADOPT ONE
OF TWO ALTERNATIVES: 

1.  I WOULD REVERSE THAT JUDGMENT AND, INSTEAD, APPROVE THE JUDGMENT
OF THE DISTRICT COURT WHICH RECOGNIZED STANDING IN THE SIERRA CLUB AND
GRANTED PRELIMINARY RELIEF.  I WOULD BE WILLING TO DO THIS ON CONDITION
THAT THE SIERRA CLUB FORTHWITH AMEND ITS COMPLAINT TO MEET THE
SPECIFICATIONS THE COURT PRESCRIBES FOR STANDING.  IF SIERRA CLUB FAILS
OR REFUSES TO TAKE THAT STEP, SO BE IT; THE CASE WILL THEN COLLAPSE. 
BUT IF IT DOES AMEND, THE MERITS WILL BE BEFORE THE TRIAL COURT ONCE
AGAIN.  AS THE COURT, ANTE, AT 730 N. 2, SO CLEARLY REVEALS, THE ISSUES
ON THE MERITS ARE SUBSTANTIAL AND DESERVE RESOLUTION.  THEY ASSAY NEW
GROUND.  THEY ARE CRUCIAL TO THE FUTURE OF MINERAL KING.  THEY RAISE
IMPORTANT RAMIFICATIONS FOR THE QUALITY OF THE COUNTRY'S PUBLIC LAND
MANAGEMENT.  THEY POSE THE PROPRIETY OF THE "DUAL PERMIT" DEVICE AS A
MEANS OF AVOIDING THE 80-ACRE "RECREATION AND RESORT" LIMITATION
IMPOSED BY CONGRESS IN 16 U.S.C. 497, AN ISSUE THAT APPARENTLY HAS
NEVER BEEN LITIGATED, AND IS CLEARLY SUBSTANTIAL IN LIGHT OF THE
CONGRESSIONAL EXPANSION OF THE LIMITATION IN 1956 ARGUABLY TO PUT TEETH
INTO THE OLD, UNREALISTIC FIVE-ACRE LIMITATION.  IN FACT, THEY CONCERN
THE PROPRIETY OF THE 80-ACRE PERMIT ITSELF AND THE CONSISTENCY OF THE
ENTIRE, ENORMOUS DEVELOPMENT WITH THE STATUTORY PURPOSES OF THE SEQUOIA
GAME REFUGE, OF WHICH THE VALLEY IS A PART.  IN THE CONTEXT OF THIS
PARTICULAR DEVELOPMENT, SUBSTANTIAL QUESTIONS ARE RAISED ABOUT THE USE
OF A NATIONAL PARK AREA FOR DISNEY PURPOSES FOR A NEW HIGH SPEED ROAD
AND A 66,000-VOLT POWER LINE TO SERVE THE COMPLEX.  LACK OF COMPLIANCE
WITH EXISTING ADMINISTRATIVE REGULATIONS IS ALSO CHARGED.  THESE ISSUES
ARE NOT SHALLOW OR PERFUNCTORY. 

2.  ALTERNATIVELY, I WOULD PERMIT AN IMAGINATIVE EXPANSION OF OUR
TRADITIONAL CONCEPTS OF STANDING IN ORDER TO ENABLE AN ORGANIZATION
SUCH AS THE SIERRA CLUB, POSSESSED, AS IT IS, OF PERTINENT, BONA FIDE,
AND WELL-RECOGNIZED ATTRIBUTES AND PURPOSES IN THE AREA OF ENVIRONMENT,
TO LITIGATE ENVIRONMENTAL ISSUES.  THIS INCURSION UPON TRADITION NEED
NOT BE VERY EXTENSIVE.  CERTAINLY, IT SHOULD BE NO CAUSE FOR ALARM.  IT
IS NO MORE PROGRESSIVE THAN WAS THE DECISION IN DATA PROCESSING
ITSELF.  IT NEED ONLY RECOGNIZE THE INTEREST OF ONE WHO HAS A PROVABLE,
SINCERE, DEDICATED, ESTABLISHED STATUS.  WE NEED NOT FEAR THAT
PANDORA'S BOX WILL BE OPENED OR THAT THERE WILL BE NO LIMIT TO THE
NUMBER OF THOSE WHO DESIRE TO PARTICIPATE IN ENVIRONMENTAL LITIGATION. 
THE COURTS WILL EXERCISE APPROPRIATE RESTRAINTS JUST AS THEY HAVE
EXERCISED THEM IN THE PAST.  WHO WOULD HAVE SUSPECTED 20 YEARS AGO THAT
THE CONCEPTS OF STANDING ENUNCIATED IN DATA PROCESSING AND BARLOW WOULD
BE THE MEASURE FOR TODAY?  AND MR. JUSTICE DOUGLAS, IN HIS ELOQUENT
OPINION, HAS IMAGINATIVELY SUGGESTED ANOTHER MEANS AND ONE, IN ITS OWN
WAY, WITH OBVIOUS.  APPROPRIATE, AND SELF-IMPOSED LIMITATIONS AS TO
STANDING.  AS I READ WHAT HE HAS WRITTEN, HE MAKES ONLY ONE ADDITION TO
THE CUSTOMARY CRITERIA (THE EXISTENCE OF A GENUINE DISPUTE; THE
ASSURANCE OF ADVERSARINESS; AND A CONVICTION THAT THE PARTY WHOSE
STANDING IS CHALLENGED WILL ADEQUATELY REPRESENT THE INTERESTS HE
ASSERTS), THAT IS, THAT THE LITIGANT BE ONE WHO SPEAKS KNOWINGLY FOR
THE ENVIRONMENTAL VALUES HE ASSERTS. 

I MAKE TWO PASSING REFERENCES: 

1.  THE FIRST RELATES TO THE DISNEY FIGURES PRESENTED TO US.  THE
COMPLEX, THE COURT NOTES, WILL ACCOMMODATE 14,000 VISITORS A DAY (3,100
OVERNIGHT; SOME 800 EMPLOYEES; 10 RESTAURANTS; 20 SKI LIFTS).  THE
STATE OF CALIFORNIA HAS PROPOSED TO BUILD A NEW ROAD FROM HAMMOND TO
MINERAL KING.  THAT ROAD, TO THE EXTENT OF 9.2 MILES, IS TO TRAVERSE
SEQUOIA NATIONAL PARK.  IT WILL HAVE ONLY TWO LANES, WITH OCCASIONAL
PASSING AREAS, BUT IT WILL BE CAPABLE, IT IS SAID, OF ACCOMMODATING 700
800 VEHICLES PER HOUR AND A PEAK OF 1,200 PER HOUR.  WE ARE TOLD THAT
THE STATE HAS AGREED NOT TO SEEK ANY FURTHER IMPROVEMENT IN ROAD ACCESS
THROUGH THE PARK. 

IF WE ASSUME THAT THE 14,000 DAILY VISITORS COME BY AUTOMOBILE
(RATHER THAN BY HELICOPTER OR BUS OR OTHER KNOWN OR UNKNOWN MEANS) AND
THAT EACH VISITING AUTOMOBILE CARRIES FOUR PASSENGERS (AN ASSUMPTION I
AM SURE, THAT IS FAR TOO OPTIMISTIC), THOSE 14,000 VISITORS WILL MOVE
IN 3,500 VEHICLES.  IF WE CONFINE THEIR MOVEMENT (AS I THINK WE
PROPERLY MAY FOR THIS MOUNTAIN AREA) TO 12 HOURS OUT OF THE DAILY 24,
THE 3,500 AUTOMOBILES WILL PASS ANY GIVEN POINT ON THE TWO-LANE ROAD AT
THE RATE OF ABOUT 300 PER HOUR.  THIS AMOUNTS TO FIVE VEHICLES PER
MINUTE, OR AN AVERAGE OF ONE EVERY 12 SECONDS.  THIS FREQUENCY IS
FURTHER INCREASED TO ONE EVERY SIX SECONDS WHEN THE NECESSARY RETURN
TRAFFIC ALONG THAT SAME TWO-LANE ROAD IS CONSIDERED.  AND THIS DOES NOT
INCLUDE SERVICE VEHICLES AND EMPLOYEES' CARS.  IS THIS THE WAY WE
PERPETUATE THE WILDERNESS AND ITS BEAUTY, SOLITUDE, AND QUIET? 

2.  THE SECOND RELATES TO THE FAIRLY OBVIOUS FACT THAT ANY RESIDENT
OF THE MINERAL KING AREA-- THE REAL "USER"-- IS AN UNLIKELY ADVERSARY
FOR THIS DISNEY-GOVERNMENTAL PROJECT.  HE NATURALLY WILL BE INCLINED TO
REGARD THE SITUATION AS ONE THAT SHOULD BENEFIT HIM ECONOMICALLY.  HIS
FISHING OR CAMPING OR GUIDING OR HANDYMAN OR GENERAL OUTDOOR PROWESS
PERHAPS WILL FIND AN EARLY AND READY MARKET AMONG THE VISITORS.  BUT
THAT GLOW OF ANTICIPATION WILL BE SHORT-LIVED AT BEST.  IF HE IS A TRUE
LOVER OF THE WILDERNESS-- AS IS LIKELY, OR HE WOULD NOT BE NEAR MINERAL
KING IN THE FIRST PLACE-- IT WILL NOT BE LONG BEFORE HE YEARNS FOR THE
GOOD OLD DAYS WHEN MASSES OF PEOPLE-- THAT 14,000 INFLUX PER DAY-- AND
THEIR THUS FAR UNCONTROLLABLE WASTE WERE UNKNOWN TO MINERAL KING. 

DO WE NEED ANY FURTHER INDICATION AND PROOF THAT ALL THIS MEANS THAT
THE AREA WILL NO LONGER BE ONE "OF GREAT NATURAL BEAUTY" AND ONE
"UNCLUTTERED BY THE PRODUCTS OF CIVILIZATION?"  ARE WE TO BE RENDERED
HELPLESS TO CONSIDER AND EVALUATE ALLEGATIONS AND CHALLENGES OF THIS
KIND BECAUSE OF PROCEDURAL LIMITATIONS ROOTED IN TRADITIONAL CONCEPTS
OF STANDING?  I SUSPECT THAT THIS MAY BE THE RESULT OF TODAY'S
HOLDING.  AS THE COURT POINTS OUT, ANTE, AT 738-739, OTHER FEDERAL
TRIBUNALS HAVE NOT FELT THEMSELVES SO CONFINED.  /1/  I WOULD JOIN
THOSE PROGRESSIVE HOLDINGS. 

THE COURT CHOOSES TO CONCLUDE ITS OPINION WITH A FOOTNOTE REFERENCE
TO DETOCQUEVILLE.  IN THIS ENVIRONMENTAL CONTEXT I PERSONALLY PREFER
THE OLDER AND PARTICULARLY PERTINENT OBSERVATION AND WARNING OF JOHN
DONNE.  /2/ 

/1/  ENVIRONMENTAL DEFENSE FUND, INC. V. HARDIN, 138 U.S.APP.D.C.
391, 394-395, 428 F.2D 1092, 1096-1097 (1970); CITIZENS COMMITTEE FOR
THE HUDSON VALLEY V. VOLPE, 425 F.2D 97, 101-105 (CA2 1970), CERT.
DENIED, 400 U.S. 949; SCENIC HUDSON PRESERVATION CONF. V. FPC, 354 F.2D
608, 615-617 (CA2 1965); IZAAK WALTON LEAGUE V. ST. CLAIR, 313 F.SUPP. 
1312, 1316-1317 (MINN. 1970); ENVIRONMENTAL DEFENSE FUND, INC. V. CORPS
OF ENGINEERS, 324 F.SUPP.  878, 879-880 (DC 1971); ENVIRONMENTAL
DEFENSE FUND, INC. V. CORPS OF ENGINEERS, 325 F.SUPP.  728, 734-736 (ED
ARK. 1970-1971); SIERRA CLUB V. HARDIN, 325 F.SUPP.  99, 107-112
(ALASKA 1917); UPPER PECOS ASSN. V. STANS, 328 F.SUPP.  332, 333-334
(N. MEX.  1971); CAPE MAY COUNTY CHAPTER, INC., IZAAK WALTON LEAGUE V.
MACCHIA, 329 F.SUPP.  504, 510-514 (N.J. 1971).  SEE NATIONAL AUTOMATIC
LAUNDRY & CLEANING COUNCIL V. SHULTZ, 143 U.S.APP.D.C. 274, 278-279,
443 F.2D 689, 693-694 (1971); WEST VIRGINIA HIGHLANDS CONSERVANCY V.
ISLAND CREEK COAL CO., 441 F.2D 232, 234-235 (CA4 1971); ENVIRONMENTAL
DEFENSE FUND, INC. V. HEW, 138 U.S.APP.D.C. 381, 383 N. 2, 428 F.2D
1083, 1085 N.2 (1970); HONCHOK V. HARDIN, 326 F.SUPP.  988, 991 (MD.
1971). 

/2/  "NO MAN IS AN ILAND, INTIRE OF ITSELFE; EVERY MAN IS A PEECE OF
THE CONTINENT, A PART OF THE MAINE, IF A CLOD BEE WASHED AWAY BY THE
SEA, EUROPE IS THE LESSE, AS WELL AS IF A PROMONTORIE WERE, AS WELL AS
IF A MANNOR OF THEY FRIENDS OR OF THINE OWNE WERE; ANY MAN'S DEATH
DIMINISHES ME, BECAUSE I AM INVOLVED IN MANKINDE; AND THEREFORE NEVER
SEND TO KNOW FOR WHOM THE BELL TOLLS; IT TOLLS FOR THEE."  DEVOTIONS
XVII. 

LELAND R. SELNA, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS MATTHEW P. MITCHELL. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR RESPONDENTS.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL KASHIWA, DEPUTY
ASSISTANT ATTORNEY GENERAL KIECHEL, WILLIAM TERRY BRAY, EDMUND B.
CLARK, AND JACQUES B. GELIN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY ANTHONY A.
LAPHAM AND EDWARD LEE ROGERS FOR THE ENVIRONMENTAL DEFENSE FUND; BY
GEORGE J. ALEXANDER AND MARCEL B. POCHE FOR THE NATIONAL ENVIRONMENTAL
LAW SOCIETY; AND BY BRUCE J. TERRIS AND JAMES W. MOORMAN FOR THE
WILDERNESS SOCIETY ET AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY E. LEWIS REID
AND CALVIN E. BALDWIN FOR THE COUNTY OF TULARE; BY ROBERT C. KECK FOR
THE AMERICAN NATIONAL CATTLEMEN'S ASSN. ET AL.; AND BY DONALD R. ALLEN
FOR THE FAR WEST SKI ASSN. ET AL.
..END :







COLE V. RICHARDSON, 405 U.S. 676 


       COLE, STATE HOSPITAL SUPERINTENDENT, ET AL. V. RICHARDSON

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS

NO. 70-14.  ARGUED NOVEMBER 16, 1971-- DECIDED APRIL 18,

         1972 


APPELLEE'S EMPLOYMENT AT THE BOSTON STATE HOSPITAL WAS TERMINATED
WHEN SHE REFUSED TO TAKE THE FOLLOWING OATH REQUIRED OF ALL PUBLIC
EMPLOYEES IN MASSACHUSETTS:  "I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I
WILL UPHOLD AND DEFEND THE CONSTITUTION OF THE COMMONWEALTH OF
MASSACHUSETTS AND THAT I WILL UPHOLD AND DEFEND THE CONSTITUTION OF THE
UNITED STATES OF AMERICA AND THE CONSTITUTION OF THE COMMONWEALTH OF
MASSACHUSETTS AND THAT I WILL OPPOSE THE OVERTHROW OF THE GOVERNMENT OF
THE UNITED STATES OF AMERICA OR OF THIS COMMONWEALTH BY FORCE,
VIOLENCE, OR BY ANY ILLEGAL OR UNCONSTITUTIONAL METHOD."  APPELLEE
CHALLENGED THE CONSTITUTIONALITY OF THE OATH STATUTE.  A THREE-JUDGE
DISTRICT COURT CONCLUDED THAT THE ATTACK ON THE "UPHOLD AND DEFEND"
CLAUSE WAS FORECLOSED BY KNIGHT V. BOARD OF REGENTS, 390U.S. 36, BUT
FOUND THE "OPPOSE THE OVERTHROW" CLAUSE "FATALLY VAGUE AND UNSPECIFIC"
AND THUS VIOLATIVE OF THE FIRST AMENDMENT.  IN RESPONSE TO A REMAND
FROM THIS COURT, THE DISTRICT COURT CONCLUDED THAT THE CASE WAS NOT
MOOT, AND REINSTATED ITS EARLIER JUDGMENT.  HELD:  THE MASSACHUSETTS
OATH IS CONSITUTIONALLY PERMISSIBLE.  PP. 679-687. 

(A) THE OATH PROVISIONS OF THE UNITED STATES CONSTITUTION, ART. II,
SEC 1, CL. 8, AND ART. VI, CL. 3, ARE NOT INCONSISTENT WITH THE FIRST
AMENDMENT.  PP. 681-682. 

(B) THE DISTRICT COURT PROPERLY HELD THAT THE "UPHOLD AND DEFEND"
CLAUSE, A PARAPHRASE OF THE CONSTITUTIONAL OATH, IS PERMISSIBLE.  P.
683. 

(C) THE "OPPOSE THE OVERTHROW" CLAUSE WAS NOT DESIGNED TO REQUIRE
SPECIFIC ACTION TO BE TAKEN IN SOME HYPOTHETICAL OR ACTUAL SITUATION
BUT WAS TO ASSURE THAT THOSE IN POSITIONS OF PUBLIC TRUST WERE WILLING
TO COMMIT THEMSELVES TO LIVE BY THE CONSTITUTIONAL PROCESSES OF OUR
GOVERNMENT.  PP. 683-685. 

(D) THE OATH IS NOT VOID FOR VAGUENESS.  PERJURY, THE SOLE
PUNISHMENT, REQUIRES A KNOWING AND WILLFUL FALSEHOOD, WHICH REMOVES THE
DANGER OF PUNISHMENT WITHOUT FAIR NOTICE; AND THERE IS NO PROBLEM OF
PUNISHMENT INFLICTED BY MERE PROSECUTION, AS THERE HAS BEEN NO
PROSECUTION UNDER THE STATUTE SINCE ITS ENACTMENT NOR HAS ANY BEEN
PLANNED.  PP. 685-686. 

(E) THERE IS NO CONSTITUTIONALLY PROTECTED RIGHT TO OVERTHROW A
GOVERNMENT BY FORCE, VIOLENCE, OR ILLEGAL OR UNCONSTITUTIONAL MEANS,
AND THEREFORE THERE IS NO REQUIREMENT THAT ONE WHO REFUSES TO TAKE
MASSACHUSETTS' OATH BE GRANTED A HEARING FOR THE DETERMINATION OF SOME
OTHER FACT BEFORE BEING DISCHARGED, PP. 686-687. 

REVERSED AND REMANDED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEWART,
WHITE, AND BLACKMUN, JJ., JOINED.  STEWART AND WHITE, JJ., FILED A
CONCURRING OPINION, POST, P. 687.  DOUGLAS, J., FILED A DISSENTING
OPINION, POST, P. 687.  MARSHALL, J., FILED A DISSENTING OPINION, IN
WHICH BRENNAN, J., JOINED, POST, P. 691.  POWELL AND REHNQUIST, JJ.,
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

IN THIS APPEAL WE REVIEW THE DECISION OF THE THREE-JUDGE DISTRICT
COURT HOLDING A MASSACHUSETTS LOYALTY OATH UNCONSTITUTIONAL. 

THE APPELLEE, RICHARD, WAS HIRED AS A RESEARCH SOCIOLOGIST BY THE
BOSTON STATE HOSPITAL.  APPELLANT COLE IS SUPERINTENDENT OF THE
HOSPITAL.  SOON AFTER SHE ENTERED ON DUTY MRS. RICHARDSON WAS ASKED TO
SUBSCRIBE TO THE OATH REQUIRED OF ALL PUBLIC EMPLOYEES IN
MASSACHUSETTS.  THE OATH IS AS FOLLOWS: 

    "I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL UPHOLD AND DEFEND

  THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND THE

  CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS AND THAT I WILL

  OPPOSE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OF

  AMERICA OR OF THIS COMMONWEALTH BY FORCE, VIOLENCE OR BY ANY

  ILLEGAL OR UNCONSITUTIONAL METHOD."  /1/ 

MRS. RICHARDSON INFORMED THE HOSPITAL'S PERSONNEL DEPARTMENT THAT
SHE COULD NOT TAKE THE OATH AS ORDERED BECAUSE OF HER BELIEF THAT IT
WAS IN VIOLATION OF THE UNITED STATES CONSTITUTION.  APPROXIMATELY 10
DAYS LATER APPELLANT COLE PERSONALLY INFORMED MRS. RICHARDSON THAT
UNDER STATE LAW SHE COULD NOT CONTINUE AS AN EMPLOYEE OF THE BOSTON
STATE HOSPITAL UNLESS SHE SUBSCRIBED TO THE OATH.  AGAIN SHE REFUSED. 
ON NOVEMBER 25, 1968, MRS. RICHARDSON'S EMPLOYMENT WAS TERMINATED AND
SHE WAS PAID THROUGH THAT DATE. 

IN MARCH 1969 MRS. RICHARDSON FILED A COMPLAINT IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.  THE COMPLAINT
ALLEGED THE UNCONSTITUTIONALITY OF THE STATUTE, SOUGHT DAMAGES AND AN
INJUNCTION AGAINST ITS CONTINUED ENFORCEMENT, AND PRAYED FOR THE
CONVOCATION OF A THREE-JUDGE COURT PURSUANT TO 28 U.S.C. 2281 AND
2284. 

A THREE-JUDGE DISTRICT COURT HELD THE OATH STATUTE UNCONSTITUTIONAL
AND ENJOINED THE APPELLANTS FROM APPLYING THE STATUTE TO PROHIBIT MRS.
RICHARDSON FROM WORKING FOR BOSTON STATE HOSPITAL.  /2/  THE DISTRICT
COURT FOUND THE ATTACK ON THE "UPHOLD AND DEFEND" CLAUSE, THE FIRST
PART OF THE OATH, FORECLOSED BY KNIGHT V. BOARD OF REGENTS, 269
F.SUPP.  339 (SDNY 1967), AFF'D, 390 U.S. 36 (1968).  BUT IT FOUND THAT
THE "OPPOSE THE OVERTHROW" CLAUSE WAS "FATALLY VAGUE AND UNSPECIFIC,"
AND THEREFORE A VIOLATION OF FIRST AMENDMENT RIGHTS.  THE COURT GRANTED
THE REQUESTED INJUNCTION BUT DENIED THE CLAIM FOR DAMAGES. 

APPEALS WERE THEN BROUGHT TO THIS COURT UNDER 28 U.S.C. 1253.  WE
REMANDED FOR CONSIDERATION OF WHETHER THE CASE WAS MOOT IN LIGHT OF A
SUGGESTION THAT MRS. RICHARDSON'S JOB HAD BEEN FILLED IN THE INTERIM. 
397 U.S. 238 (1970).  ON REMAND, THE DISTRICT COURT CONCLUDED THAT MRS.
RICHARDSON'S POSITION HAD NOT BEEN FILLED AND THAT THE HOSPITAL STOOD
READY TO HIRE HER FOR THE CONTINUING RESEARCH PROJECT EXCEPT FOR THE
PROBLEM OF THE OATH.  IN AN UNREPORTED OPINION DATED JULY 1, 1970, IT
CONCLUDED THAT THE CASE WAS NOT MOOT AND REINSTATED ITS EARLIER
JUDGMENT.  APPELLANTS AGAIN APPEALED, AND WE NOTED PROBABLE
JURISDICTION.  403 U.S. 917 (1971). 

WE CONCLUDE THAT THE MASSACHUSETTS OATH IS CONSTITUTIONALLY
PERMISSIBLE, AND IN LIGHT OF THE PROLONGED LITIGATION OF THIS CASE WE
SET FORTH OUR REASONING AT GREATER LENGTH THAN PREVIOUSLY. 

A REVIEW OF THE OATH CASES IN THIS COURT WILL PUT THE INSTANT OATH
INTO CONTEXT.  WE HAVE MADE CLEAR THAT NEITHER FEDERAL NOR STATE
GOVERNMENT MAY CONDITION EMPLOYMENT ON TAKING OATHS THAT IMPINGE ON
RIGHTS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS RESPECTIVELY,
AS FOR EXAMPLE THOSE RELATING TO POLITICAL BELIEFS.  LAW STUDENTS
RESEARCH COUNCIL V. WADMOND, 401 U.S. 154 (1971); BAIRD V. STATE BAR OF
ARIZONA, 401 U.S. 1 (1971); CONNELL V. HIGGINBOTHAM, 403 U.S. 207, 209
(1971) (MARSHALL, J., CONCURRING IN RESULT).  NOR MAY EMPLOYMENT BE
CONDITIONED ON AN OATH THAT ONE HAS NOT ENGAGED, OR WILL NOT ENGAGE, IN
PROTECTED SPEECH ACTIVITIES SUCH AS THE FOLLOWING:  CRITICIZING
INSTITUTIONS OF GOVERNMENT; DISCUSSING POLITICAL DOCTRINE THAT APPROVES
THE OVERTHROW OF CERTAIN FORMS OF GOVERNMENT; AND SUPPORTING CANDIDATES
FOR POLITICAL OFFICE.  KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589
(1967); BAGGETT V. BULLITT, 377 U.S. 360 (1964); CRAMP V. BOARD OF
PUBLIC INSTRUCTION, 368 U.S. 278 (1961).  EMPLOYMENT MAY NOT BE
CONDITIONED ON AN OATH DENYING PAST, OR ABJURING FUTURE, ASSOCIATIONAL
ACTIVITIES WITHIN CONSTITUTIONAL PROTECTION; SUCH PROTECTED ACTIVITIES
INCLUDE MEMBERSHIP IN ORGANIZATIONS HAVING ILLEGAL PURPOSES UNLESS ONE
KNOWS OF THE PURPOSE AND SHARES A SPECIFIC INTENT TO PROMOTE THE
ILLEGAL PURPOSE.  WHITEHILL V. ELKINS, 389 U.S. 54 (1967); KEYISHIAN V.
BOARD OF REGENTS, SUPRA; ELFBRANDT V. RUSSELL, 384 U.S. 11 (1966);
WIEMAN V. UPDEGRAFF, 344 U.S. 183 (1952).  THUS, LAST TERM IN WADMOND
THE COURT SUSTAINED INQUIRY INTO A BAR APPLICANT'S ASSOCIATIONAL
ACTIVITIES ONLY BECAUSE IT WAS NARROWLY CONFINED TO ORGANIZATIONS THAT
THE INDIVIDUAL HAD KNOWN TO HAVE THE PURPOSE OF VIOLENT OVERTHROW OF
THE GOVERNMENT AND WHOSE PURPOSE THE INDIVIDUAL SHARED.  AND, FINALLY,
AN OATH MAY NOT BE SO VAGUE THAT "'MEN OF COMMON INTELLIGENCE MUST
NECESSARILY GUESS AT ITS MEANING AND DIFFER AS TO ITS APPLICATION,
(BECAUSE SUCH AN OATH) VIOLATES THE FIRST ESSENTIAL OF DUE PROCESS OF
LAW.'"  CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368 U.S.,AT 287.  CONCERN
FOR VAGUENESS IN THE OATH CASES HAS BEEN ESPECIALLY GREAT BECAUSE
UNCERTAINTY AS TO AN OATH'S MEANING MAY DETER INDIVIDUALS FROM ENGAGING
IN CONSTITUTIONALLY PROTECTED ACTIVITY CONCEIVABLY WITHIN THE SCOPE OF
THE OATH. 

AN UNDERLYING, SELDOM ARTICULATED CONCERN RUNNING THROUGHOUT THESE
CASES IS THAT THE OATHS UNDER CONSIDERATION OFTEN REQUIRED INDIVIDUALS
TO REACH BACK INTO THEIR PAST TO RECALL MINOR, SOMETIMES INNOCENT,
ACTIVITIES.  THEY PUT THE GOVERNMENT INTO "THE CENSORIAL BSUINESS OF
INVESTIGATING, SCRUTINIZING, INTERPRETING, AND THEN PENALIZING OR
APPROVING THE POLITICAL VIEWPOINTS" AND PAST ACTIVITIES OF
INDIVIDUALS.  LAW STUDENTS RESEARCH COUNCIL V. WADMOND, 401 U.S.,AT 192
(MARSHALL, J., DISSENTING). 

SEVERAL CASES RECENTLY DECIDED BY THE COURT STAND OUT AMONG OUR OATH
CASES BECAUSE THEY HAVE UPHELD THE CONSTITUTIONALITY OF OATHS,
ADDRESSED TO THE FUTURE, PROMISING CONSTITUTIONAL SUPPORT IN BROAD
TERMS.  THESE CASES HAVE BEGUN WITH A RECOGNITION THAT THE CONSTITUTION
ITSELF PRESCRIBES COMPARABLE OATHS IN TWO ARTICLES.  ARTICLE II, SEC.
1, CL. 8, PROVIDES THAT THE PRESIDENT SHALL SWEAR THAT HE WILL
"FAITHFULLY EXECUTE THE OFFICE . . . AND WILL TO THE BEST OF (HIS)
ABILITY, PRESERVE, PROTECT AND DEFEND THE CONSTITUTION OF THE UNITED
STATES."  ARTICLE VI, CL. 3, PROVIDES THAT ALL STATE AND FEDERAL
OFFICERS SHALL BE BOUND BY AN OATH "TO SUPPORT THIS CONSTITUTION."  THE
OATH TAKEN BY ATTORNEYS AS A CONDITION OF ADMISSION TO THE BAR OF THIS
COURT IDENTICALLY PROVIDES IN PART "THAT I WILL SUPPORT THE
CONSTITUTION OF THE UNITED STATES"; IT ALSO REQUIRES THE ATTORNEY TO
STATE THAT HE WILL "CONDUCT (HIMSELF) UPRIGHTLY, AND ACCORDING TO
LAW." 

BOND V. FLOYD, 385 U.S. 116 (1966), INVOLVED GEORGIA'S STATUTORY
REQUIREMENT THAT STATE LEGISLATORS SWEAR TO "SUPPORT THE CONSTITUTION
OF THIS STATE AND OF THE UNITED STATES," A PARAPHRASE OF THE
CONSTITUTIONALLY REQUIRED OATH.  THE COURT THERE INPLICITLY CONCLUDED
THAT THE FIRST AMENDMENT DID NOT UNDERCUT THE VALIDITY OF THE
CONSTITUTIONAL OATH PROVISIONS.  ALTHOUGH IN THEORY THE FIRST AMENDMENT
MIGHT HAVE INVALIDATED THOSE PROVISIONS, APPROVAL OF THE AMENDMENT BY
THE SAME INDIVIDUALS WHO HAD INCLUDED THE OATHS IN THE CONSTITUTION
SUGGESTED STRONGLY THAT THEY WERE CONSISTENT.  THE COURT'S RECOGNITION
OF THIS CONSISTENCY DID NOT INVOLVE A DEPARTURE FROM ITS MANY DECISIONS
STRIKING DOWN OATHS THAT INFRINGED FIRST AND FOURTEENTH AMENDMENT
RIGHTS.  THE COURT READ THE GEORGIA OATH AS CALLING SIMPLY FOR AN
ACKNOWLEDGMENT OF A WILLINGNESS TO ABIDE BY "CONSTITUTIONAL PROCESSES
OF GOVERNMENT."  385 U.S.,AT 135.  ACCORD, KNIGHT V. BOARD OF REGENTS,
390 U.S. 36 (1968) (WITHOUT OPINION).  ALTHOUGH DISAGREEING ON OTHER
POINTS, IN WADMOND, SUPRA, ALL MEMBERS OF THE COURT AGREED ON THIS
POINT.  MR. JUSTICE MARSHALL NOTED THERE, WHILE DISSENTING AS TO OTHER
POINTS, 

"THE OATH OF CONSTITUTIONAL SUPPORT REQUIRES AN INDIVIDUAL ASSUMING
PUBLIC RESPONSIBILITIES TO AFFIRM . . . THAT HE WILL ENDEAVOR TO
PERFORM HIS PUBLIC DUTIES LAWFULLY."  401 U.S.,AT 192. 

THE COURT HAS FURTHER MADE CLEAR THAT AN OATH NEED NOT PARROT THE
EXACT LANGUAGE OF THE CONSTITUTIONAL OATHS TO BE CONSTITUTIONALLY
PROPER.  THUS IN OHLSON V. PHILLIPS, 397 U.S. 317 (1970), WE SUSTAINED
THE CONSTITUTIONALITY OF A STATE REQUIREMENT THAT TEACHERS SWEAR TO
"UPHOLD" THE CONSTITUTION.  THE DISTRICT COURT HAD CONCLUDED THAT THE
OATH WAS SIMPLY A "'RECOGNITION THAT OURS IS A GOVERNMENT OF LAWS AND
NOT OF MEN,'" AND THAT THE OATH INVOLVED AN AFFIRMATION OF "ORGANIC
LAW" AND REJECTION OF "THE USE OF FORCE TO OVERTHROW THE GOVERNMENT." 
OHLSON V. PHILLIPS, 304 F.SUPP.  1152 (COLO. 1969). 

THE DISTRICT COURT IN THE INSTANT CASE PROPERLY RECOGNIZED THAT THE
FIRST CLAUSE OF THE MASSACHUSETTS OATH, IN WHICH THE INDIVIDUAL SWEARS
TO "UPHOLD AND DEFEND" THE CONSTITUTIONS OF THE UNITED STATES AND THE
COMMONWEALTH, IS INDISTINGUISHABLE FROM THE OATHS THIS COURT HAS
RECENTLY APPROVED.  YET THE DISTRICT COURT APPLIED A HIGHLY
LITERALISTIC APPROACH TO THE SECOND CLAUSE TO STRIKE IT DOWN.  WE VIEW
THE SECOND CLUASE OF THE OATH AS ESSENTIALLY THE SAME AS THE FIRST. 

THE SECOND CLAUSE OF THE OATH CONTAINS A PROMISE TO "OPPOSE THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR OF THIS
COMMONWEALTH BY FORCE, VIOLENCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL
METHOD."  THE DISTRICT COURT SOUGHT TO GIVE A DICTIONARY MEANING TO
THIS LANGUAGE AND FOUND "OPPOSE" TO RAISE THE SPECTER OF VAGUE,
UNDEFINABLE RESPONSIBILITIES ACTIVELY TO COMBAT A POTENTIAL OVERTHROW
OF THE GOVERNMENT.  THAT READING OF THE OATH UNDERSTANDABLY TROUBLED
THE COURT BECAUSE OF WHAT IT SAW AS VAGUENESS IN TERMS OF WHAT THREATS
WOULD CONSTITUTE SUFFICIENT DANGER OF OVERTHROW TO REQUIRE THE OATH
GIVER TO ACTIVELY OPPOSE OVERTHROW, AND EXACTLY WHAT ACTIONS HE WOULD
HAVE TO TAKE IN THAT RESPECT.  CF. OHLSON V. PHILLIPS, 304 F.SUPP.,AT
1154 AND N. 4. 

BUT SUCH A LITERAL APPROACH TO THE SECOND CLAUSE IS INCONSISTENT WITH
THE COURT'S APPROACH TO THE "SUPPORT" OATHS.  ONE COULD MAKE A LITERAL
ARGUMENT THAT "SUPPORT" INVOLVES NEBULOUS, UNDEFINED RESPONSIBILITIES
FOR ACTION IN SOME HYPOTHETICAL SITUATIONS.  AS MR. JUSTICE HARLAN
NOTED IN HIS OPINION CONCURRING IN THE RESULT ON OUR EARLIER
CONSIDERATION OF THIS CASE, 

"(ALMOST ANY WORD OR PHRASE MAY BE RENDERED VAGUE AND AMBIGUOUS BY
DISSECTION WITH A SEMANTIC SCALPEL.  . . . (BUT SUCH AN APPROACH)
AMOUNTS TO LITTLE MORE THAN VERBAL CALISTHENICS.  CF. S. CHASE, THE
TYRANNY OF WORDS (1959); W. EMPSON, SEVEN TYPES OF AMBIGUITY (1955)." 
COLE V. RICHARDSON, 397 U.S. 238, 240 (1970).  WE HAVE REJECTED SUCH
RIGIDLY LITERAL NOTIONS AND RECOGNIZED THAT THE PRUPOSE LEADING
LEGISLATURES TO ENACT SUCH OATHS, JUST AS THE PURPOSE LEADING THE
FRAMERS OF OUR CONSTITUTION TO INCLUDE THE TWO EXPLICIT CONSTITUTIONAL
OATHS, WAS NOT TO CREATE SPECIFIC RESPONSIBILITIES BUT TO ASSURE THAT
THOSE IN POSITIONS OF PUBLIC TRUST WERE WILLING TO COMMIT THEMSELVES TO
LIVE BY THE CONSTITUTIONAL PROCESSES OF OUR SYSTEM, AS MR. JUSTICE
MARSHALL SUGGESTS IN WADMOND, 401 U.S.,AT 192.  HERE THE SECOND CLAUSE
DOES NOT REQUIRE SPECIFIC ACTION IN SOME HYPOTHETICAL OR ACTUAL
SITUATION.  PLAINLY "FORCE, VIOLENCE OR . . . ANY ILLEGAL OR
UNCONSTITUTIONAL METHOD" MODIFIES "OVERTHROW" AND DOES NOT COMMIT THE
OATH TAKER TO MEET FORCE WITH FORCE.  JUST AS THE CONNOTATIVELY ACTIVE
WORD "SUPPORT" HAS BEEN INTERPRETED TO MEAN SIMPLY A COMMITMENT TO
ABIDE BY OUR CONSTITUTIONAL SYSTEM, THE SECOND CLAUSE OF THIS OATH IS
MERELY ORIENTED TO THE NEGATIVE IMPLICATION OF THIS NOTION; IT IS A
COMMITMENT NOT TO USE ILLEGAL AND CONSTITUTIONALLY UNPROTECTED FORCE TO
CHANGE THE CONSTITUTIONAL SYSTEM.  THE SECOND CLAUSE DOES NOT EXPAND
THE OBLIGATION OF THE FIRST; IT SIMPLY MAKES CLEAR THE APPLICATION OF
THE FIRST CLAUSE TO A PARTICULAR ISSUE.  SUCH REPETITION, WHETHER FOR
EMPHASIS OR CADENCE, SEEMS TO BE THE WONT OF AUTHORS OF OATHS.  THAT
THE SECOND CLAUSE MAY BE REDUNDANT IS NO GROUND TO STRIKE IT DOWN; WE
ARE NOT CHARGED WITH CORRECTING GRAMMAR BUT WITH ENFORCING A
CONSTITUTION. 

THE PURPOSE OF THE OATH IS CLEAR ON ITS FACE.  WE CANNOT PRESUME
THAT THE MASSACHUSETTS LEGISLATURE INTENDED BY ITS USE OF SUCH GENERAL
TERMS AS "UPHOLD," "DEFEND," AND "OPPOSE" TO IMPOSE OBLIGATIONS OF
SPECIFIC, POSITIVE ACTION ON OATH TAKERS.  ANY SUCH CONSTRUCTION WOULD
RAISE SERIOUS QUESTIONS WHETHER THE OATH WAS SO VAGUE AS TO AMOUNT TO A
DENIAL OF DUE PROCESS.  CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S.
385 (1926); CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368 U.S.,AT 287. 

NOR IS THE OATH AS INTERPRETED VOID FOR VAGUENESS.  AS MR. JUSTICE
HARLAN POINTED OUT IN HIS OPINION ON OUR EARLIER CONSIDERATION OF THIS
CASE, THE OATH IS "NO MORE THAN AN AMENITY."  397 U.S.,AT 240.  IT IS
PUNISHABLE ONLY BY A PROSECUTION FOR PERJURY /3/  AND, SINCE PERJURY IS
A KNOWING AND WILLFUL FALSEHOOD, THE CONSTITUTIONAL VICE OF PUNISHMENT
WITHOUT FAIR WARNING CANNOT OCCUR HERE.  SEE AMERICAN COMMUNICATIONS
ASSN. V. DOUDS, 339 U.S. 382, 413 (1950).  NOR HERE IS THERE ANY
PROBLEM OF THE PUNISHMENT INFLICTED BY MERE PROSECUTION.  SEE CRAMP V.
BOARD OF PUBLIC INSTRUCTION, 368 U.S.,AT 284.  THERE HAS BEEN NO
PROSECUTION UNDER THIS STATUTE SINCE ITS 1948 ENACTMENT, AND THERE IS
NO INDICATION THAT PROSECUTIONS HAVE BEEN PLANNED OR BEGUN.  THE OATH
"TRIGGERED NO SERIOUS POSSIBILITY OF PROSECUTION" BY THE COMMONWEALTH. 
COLE V. RICHARDSON, 397 U.S.,AT 241.  WERE WE CONFRONTED WITH A RECORD
OF ACTUAL PROSECUTIONS OR HARASSMENT THROUGH THREATENED PROSECUTIONS,
WE MIGHT BE FACED WITH A DIFFERENT QUESTION.  THOSE WHO VIEW THE
MASSACHUSETTS OATH IN TERMS OF AN ENDLESS "PARADE OF HORRIBLES" WOULD
DO WELL TO BEAR IN MIND THAT MANY OF THE HAZARDS OF HUMAN EXISTENCE
THAT CAN BE IMAGINED ARE CIRCUMSCRIBED BY THE CLASSIC OBSERVATION OF
MR. JUSTICE HOLMES, WHEN CONFRONTED WITH THE PROPHECY OF DIRE
CONSEQUENCES OF CERTAIN JUDICIAL ACTION, THAT IT WOULD NOT OCCUR "WHILE
THIS COURT SITS."  PANHANDLE OIL CO. V. KNOX, 277 U.S. 218, 223
(DISSENTING). 

APPELLEE MOUNTS AN ADDITIONAL ATTACK ON THE MASSACHUSETTS OATH
PROGRAM IN THAT IT DOES NOT PROVIDE FOR A HEARING PRIOR TO THE
DETERMINATION NOT TO HIRE THE INDIVIDUAL BASED ON THE REFUSAL TO
SUBSCRIBE TO THE OATH.  ALL OF THE CASES IN THIS COURT THAT REQUIRE A
HEARING BEFORE DISCHARGE FOR FAILURE TO TAKE AN OATH INVOLVED
IMPERMISSIBLE OATHS.  IN SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551
(1956) (NOT AN OATH CASE), THE STATE SOUGHT TO DISMISS A PROFESSOR FOR
CLAIMING THE FIFTH AMENDMENT PRIVILEGE IN A UNITED STATES SENATE
COMMITTEE HEARING; THE COURT HELD THE STATE'S ACTION INVALID BECAUSE
THE EXERCISE OF THE PRIVILEGE WAS A CONSTITUTIONAL RIGHT FROM WHICH THE
STATE COULD NOT DRAW ANY RATIONAL INFERENCE OF DISLOYALTY.  APPELLEE
RELIES ON NOSTRAND V. LITTLE, 362 U.S. 464 (1960), AND CONNELL V.
HIGGINBOTHAM, 403 U.S. 207 (1971), BUT IN THOSE CASES THE COURT HELD
ONLY THAT THE MERE REFUSAL TO TAKE THE PARTICULAR OATH WAS NOT A
CONSTITUTIONALLY PERMISSIBLE BASIS FOR TERMINATION.  IN THE
CIRCUMSTANCES OF THOSE CASES, ONLY BY HOLDING A HEARING, SHOWING
EVIDENCE OF DISLOYALTY, AND ALLOWING THE EMPLOYEE AN OPPORTUNITY TO
RESPOND MIGHT THE STATE DEVELOP A PERMISSIBLE BASIS FOR CONCLUDING THAT
THE EMPLOYEE WAS TO BE DISCHARGED. 

SINCE THERE IS NO CONSTITUTIONALLY PROTECTED RIGHT TO OVERTHROW A
GOVERNMENT BY FORCE, VIOLENCE, OR ILLEGAL OR UNCONSTITUTIONAL MEANS, NO
CONSTITUTIONAL RIGHT IS INFRINGED BY AN OATH TO ABIDE BY THE
CONSTITUTIONAL SYSTEM IN THE FUTURE.  THEREFORE, THERE IS NO
REQUIREMENT THAT ONE WHO REFUSES TO TAKE THE MASSACHUSETTS OATH BE
GRANTED A HEARING FOR THE DETERMINATION OF SOME OTHER FACT BEFORE BEING
DISCHARGED. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

/1/  THE FULL TEXT OF THE TWO RELEVANT STATUTES IS AS FOLLOWS: 

MASS. GEN. LAWS, C. 264, SEC. 14.  OATH OR AFFIRMATION; FORM;
FILING; EXEMPTIONS 

"EVERY PERSON ENTERING THE EMPLOY OF THE COMMONWEALTH OR ANY
POLITICAL SUBDIVISION THEREOF, BEFORE ENTERING UPON THE DISCHARGE OF
HIS DUTIES, SHALL TAKE AND SUBSCRIBE TO, UNDER THE PAINS AND PENALTY OF
PERJURY, THE FOLLOWING OATH OR AFFIRMATION:-- 

"'I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL UPHOLD AND DEFEND THE
CONSTITUTION OF THE UNITED STATES OF AMERICA AND THE CONSTITUTION OF
THE COMMONWEALTH OF MASSACHUSETTS AND THAT I WILL OPPOSE THE OVERTHROW
OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR OF THIS
COMMONWEALTH BY FORCE, VIOLENCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL
METHOD.' 

"SUCH OATH OR AFFIRMATION SHALL BE FILED BY THE SUBSCRIBED, IF HE
SHALL BE EMPLOYED BY THE STATE, WITH THE SECRETARY OF THE COMMONWEALTH,
IF AN EMPLOYEE OF A COUNTY, WITH THE COUNTY COMMISSIONERS, AND IF AN
EMPLOYE OF A CITY OR TOWN, WITH THE CITY CLERK OR THE TOWN CLERK, AS
THE CASE MAY BE. 

"THE OATH OR AFFIRMATION PRESCRIBED BY THIS SECTION SHALL NOT BE
REQUIRED OF ANY PERSON WHO IS EMPLOYED BY THE COMMONWEALTH OR A
POLITICAL SUBDIVISION THEREOF AS A PHYSICIAN OR NURSE IN A HOSPITAL OR
OTHER HEALTH CARE INSTITUTION AND IS A CITIZEN OF A FOREIGN COUNTRY." 

C. 264, SEC. 15.  VIOLATION OF SECTION 14; PENALTY 

"VIOLATION OF SECTION FOURTEEN SHALL BE PUNISHED BY A FINE OF NOT
MORE THAN TEN THOUSAND DOLLARS OR BY IMPRISONMENT FOR NOT MORE THAN ONE
YEAR, OR BOTH." 

/2/  RICHARDSON V. COLE, 300 F.SUPP.  1321 (MASS. 1969). 

/3/  THE DISTRICT COURT INTERPRETED MASS. GEN. LAWS, C. 264, SEC. 15,
WHICH PUNISHES A "(VIOLATION OF SECTION FOURTEEN," SEE N. 1, SUPRA, AS
"PRESUMABLY" PUNISHING "A FAILURE TO 'LIVE UP' TO THE OATH."  WE SEE NO
BASIS FOR THIS INTERPRETATION.  THE CLEAR PURPOSE OF SEC. 15 IS TO
PUNISH THE FAILURE TO COMPLY WITH THE DIRECTIVE ASPECTS OF SEC. 14,
WHICH REQUIRES THAT EVERY PERSON ENTERING THE EMPLOY OF THE
COMMONWEALTH SUBSCRIBE TO THE OATH AND FILE IT WITH A CERTAIN STATE
EMPLOYEE.  SECTION 14, WHICH INCLUDES THE OATH, SAYS THAT IT IS TAKEN
UPON THE PENALTY OF PERJURY BUT MENTIONS NOTHING ABOUT A CONTINUING
CRIMINAL RESPONSIBILITY TO "LIVE UP" TO IT. 

THE TIME MAY COME WHEN THE VALUE OF OATHS IN ROUTINE PUBLIC
EMPLOYMENT WILL BE THOUGHT NOT "WORTH THE CANDLE" FOR ALL THE DIVISION
OF OPINION THEY ENGENDER.  HOWEVER, WHILE OATHS ARE REQUIRED BY
LEGISLATIVE ACTS IT IS NOT OUR FUNCTION TO EVALUATE THEIR WISDOM OR
UTILITY BUT ONLY TO DECIDE WHETHER THEY OFFEND THE CONSTITUTION. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE STEWART AND MR. JUSTICE WHITE, CONCURRING. 

ALL AGREE THAT THE FIRST PART OF THIS OATH, UNDER WHICH A PERSON
SWEARS TO "UPHOLD AND DEFEND" THE FEDERAL AND STATE CONSTITUTIONS, IS
WHOLLY VALID UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  BUT IF
"UPHOLD" AND "DEFEND" ARE NOT WORDS THAT SUFFER FROM VAGUENESS AND
OVERBREADTH, THEN SURELY NEITHER IS THE WORD "OPPOSE" IN THE SECOND
PART OF THE OATH. 

WHEN THE CASE WAS HERE BEFORE, MR. JUSTICE HARLAN EXPRESSED THE VIEW
THAT "(THIS OATH DOES NOT IMPINGE ON CONSCIENCE OR BELIEF, EXCEPT TO
THE EXTENT THAT OATH TAKING AS SUCH MAY OFFEND PARTICULAR
INDIVIDUALS."  COLE V. RICHARDSON, 397 U.S. 238, 241 (CONCURRING IN
RESULT).  WE AGREE.  AND AS TO SUCH INDIVIDUALS, THE MASSACHUSETTS LAW
CLEARLY PERMITS AN AFFIRMATION RATHER THAN AN OATH.  MASS. GEN. LAWS,
C. 164, SEC. 14. 

ON THIS BASIS WE JOIN THE OPINION AND JUDGMENT OF THE COURT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE PART OF THE OATH THAT SAYS "I WILL OPPOSE THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES OF AMERICA OR OF THIS COMMONWEALTH BY
FORCE, VIOLENCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL METHOD" IS
PLAINLY UNCONSTITUTIONAL BY OUR DECISIONS.  SEE BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624, 634. 

ADVOCACY OF BASIC FUNDAMENTAL CHANGES IN GOVERNMENT, WHICH MIGHT
POPULARLY BE DESCRIBED AS "OVERTHROW," IS WITHIN THE PROTECTION OF THE
FIRST AMENDMENT EVEN WHEN IT IS RESTRICTIVELY CONSTRUED.  IN
BRANDENBURG V. OHIO, 395 U.S. 444, A CASE INVOLVING CRIMINAL
SYNDICALISM, THIS COURT RULED THAT A STATE MAY NOT "FORBID OR PROSCRIBE
ADVOCACY OF THE USE OF FORCE OR OF LAW VIOLATION EXCEPT WHERE SUCH
ADVOCACY IS DIRECTED TO INCITING OR PRODUCING IMMINENT LAWLESS ACTION
AND IS LIKELY TO INCITE OR PRODUCE SUCH ACTION."  ID., AT 447.  THE
SAME IDEA WAS PUT IN SOMEWHAT DIFFERENT WORDS IN NOTO V. UNITED STATES,
367 U.S. 290, 297-298, THAT "ABSTRACT TEACHING" OF OVERTHROW IS
PROTECTED ACTIVITY AS CONTRASTED TO "PREPARING A GROUP FOR VIOLENT
ACTION AND STEELING IT TO SUCH ACTION."  AND SEE YATES V. UNITED
STATES, 354 U.S. 298, 318. 

THE PRESENT OATH MAKES SUCH ADVOCACY A POSSIBLE OFFENSE UNDER A
RESTRICTIVE READING OF THE FIRST AMENDMENT. 

THE VIEWS EXPRESSED BY MR. JUSTICE BLACK AND ME GIVE THE FIRST
AMENDMENT A MORE EXPANSIVE READING.  WE HAVE CONDEMNED LOYALTY OATHS AS
"MANIFESTATIONS) OF A NATIONAL NETWORK OF LAWS AIMED AT COERCING AND
CONTROLLING THE MINDS OF MEN.  TEST OATHS ARE NOTORIOUS TOOLS OF
TYRANNY.  WHEN USED TO SHACKLE THE MIND THEY ARE, OR AT LEAST THEY
SHOULD BE, UNSPEAKABLY ODIOUS TO A FREE PEOPLE."  WIEMAN V. UPDEGRAFF,
344 U.S. 183, 193 (BLACK, J., CONCURRING).  AND SEE SPEISER V. RANDALL,
357 U.S. 513, 532 (DOUGLAS, J., CONCURRING).  WE SAID IN BRANDENBURG
THAT THE PROTECTION OF THE FIRST AMENDMENT AS APPLIED TO THE STATES
THROUGH THE FOURTEENTH DOES NOT DEPEND ON THE "QUALITY OF ADVOCACY,"
SINCE THAT "TURNS ON THE DEPTH OF THE CONVICTION."  395 U.S.,AT 457
(DOUGLAS, J., CONCURRING).  THE LINE BETWEEN THE PERMISSIBLE CONTROL BY
A STATE AND THE IMPERMISSIBLE CONTROL IS "THE LINE BETWEEN IDEAS AND
OVERT ACTS."  ID., AT 456.  "THE FIRST AMENDMENT . . . LEAVES THE WAY
WIDE OPEN FOR PEOPLE TO FAVOR, DISCUSS ADVOCATE, OR INCITE CAUSES AND
DOCTRINES HOWEVER OBNOXIOUS AND ANTAGONISTIC SUCH VIEWS MAY BE TO THE
REST OF US."  YATES V. UNITED STATES, SUPRA, AT 344 (BLACK, J.,
CONCURRING AND DISSENTING).  THIS OATH, HOWEVER, REQUIRES THAT APPELLEE
"OPPOSE" THAT WHICH SHE HAS AN INDISPUTABLE RIGHT TO ADVOCATE.  /1/
YET THE MAJORITY CONCLUDES THAT THE PROMISE OF "OPPOSITION"-- EXACTED
AS A CONDITION OF PUBLIC EMPLOYMENT /2/  -- IS A MERE REDUNDANCY WHICH
DOES NOT IMPAIR APPELLEE'S FREEDOM OF EXPRESSION.  /3/ 

IT IS SUGGESTED, HOWEVER, THAT BECAUSE ONLY THE SECOND PORTION OF
THE OATH IS UNCONSTITUTIONAL WE SHOULD SEVER THE TWO CLAUSES AND UPHOLD
THE FIRST.  EVEN ON THIS ASSUMPTION, THE ENTIRE OATH MUST FALL.  THIS
COURT SHOULD, OF COURSE, BASE ITS DECISIONS UPON LOCAL LAW WHERE, IN SO
DOING, WE MAY AVOID DECIDING FEDERAL CONSTITUTIONAL QUESTIONS.  HERE,
WE HAVE BEEN CITED TO NO EVIDENCE OF A LEGISLATIVE INTENT TO SEPARATE
THE TWO CLAUSES OF THE OATH.  THIS CASE IS THUS GOVERNED BY PEDLOSKY V.
MASSACHUSETTS INSTITUTE OF TECHNOLOGY, 352 MASS. 127, 224 N.E.2D 414
(1967), WHERE THE SUPREME JUDICIAL COURT OF MASSACHUSETTS WAS
CONFRONTED WITH A TWO-PART TEST OATH SIMILAR IN EFFECT TO THE ONE
BEFORE US.  /4/  "THE SUBSTANCE OF THE OATH (WAS) NOT CONFINED MERELY
TO A DECLARATION OF SUPPORT OF THE FEDERAL AND STATE CONSTITUTIONS.  IT
EQUALLY CONCERNED) AN UNDERTAKING BY THE PLAINTIFF THAT 'I WILL
FAITHFULLY DISCHARGE THE DUTIES OF THE POSITION OF ASSISTANT PROFESSOR
OF MATHEMATICS ACCORDING TO THE BEST OF MY ABILITY.'"  ID., AT 128-129,
224 N.E.2D, AT 416.  FINDING THE OATH TO BE "ALTOGETHER TOO VAGUE A
STANDARD TO ENFORCE JUDICIALLY" AND BEING WITHOUT EVIDENCE "WHETHER THE
LEGISLATURE WOULD HAVE ENACTED (IT) WITHOUT THE (INVALID) PROVISION,"
THE COURT WAS UNABLE TO HOLD THAT THE PROVISIONS WERE SEVERABLE, AND
THUS UNANIMOUSLY STRUCK DOWN THE ENTIRE OATH.  ID., AT 129, 224 N.E.2D,
AT 416. 

I WOULD FOLLOW THE LEAD OF THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS-- THE COURT WHICH HAS THE FINAL WORD ON HOW THE STATUTES
OF THAT STATE ARE TO BE CONSTRUED-- AND HOLD THAT THE ENTIRE OATH MUST
FALL. 

I CONCLUDE THAT WHETHER THE FIRST AMENDMENT IS READ RESTRICTIVELY OR
LITERALLY AS JEFFERSON WOULD HAVE READ IT, THE OATH WHICH THE DISTRICT
COURT STRUCK DOWN, 300 F.SUPP.  1321, IS PLAINLY UNCONSTITUTIONAL.  I
WOULD AFFIRM ITS JUDGMENT. 

/1/  THE MAJORITY MAKES THE SUGGESTION THAT "WE MIGHT BE FACED WITH
A DIFFERENT QUESTION" IF THERE WERE "A RECORD OF ACTUAL PROSECUTIONS OR
HARASSMENT THROUGH THREATENED PROSECUTIONS."  ANTE, AT 685.  HERE,
APPELLEE HAS BEEN DISCHARGED FROM EMPLOYMENT AND DENIED HER SOURCE OF
LIVELIHOOD BECAUSE OF HER REFUSAL TO SUBSCRIBE TO AN UNCONSTITUTIONAL
OATH.  IF THE OATH SUFFERS FROM CONSTITUTIONAL INFIRMITIES, THEN IT
MATTERS NOT WHETHER THE PENALTIES IMPOSED FOR REFUSING TO SUBSCRIBE TO
IT WERE CRIMINAL OR THE DENIAL OF EMPLOYMENT. 

/2/  THE COURT IS CORRECT WHEN IT SAYS "THERE IS NO CONSTITUTIONALLY
PROTECTED RIGHT TO OVERTHROW A GOVERNMENT BY FORCE, VIOLENCE, OR
ILLEGAL OR UNCONSTITUTIONAL MEANS," ANTE, AT 686, BUT THAT HAS NO
BEARING ON THE PRESENT CASE.  WHAT IS INVOLVED HERE IS APPELLEE'S RIGHT
TO ESPOUSE AND ADVOCATE IDEAS WHICH MAY BE UNPOPULAR TO SOME.  HOW WE
CAN HONOR THAT RIGHT TO ADVOCATE WHILE EXACTING THE PROMISE TO
"OPPOSE," THE COURT LEAVES UNANSWERED. 

/3/  THE MAJORITY FIRST CHIDES THE DISTRICT COURT FOR TAKING "A
LITERAL APPROACH" AND "GIVING) (THE WORD 'OPPOSE') A DICTIONARY
MEANING."  THE MAJORITY THEN READS "OPPOSE" TO BE A MERE "NEGATIVE
IMPLICATION OF THEE) NOTION" OF "A COMMITMENT TO ABIDE BY OUR
CONSTITUTIONAL SYSTEM" NOT REQUIRING "SPECIFIC, POSITIVE ACTION." 
ANTE, AT 683, 684.  HAVING THUS EMASCULATED THE WORD, THE MAJORITY THEN
LABELS IT AS "REDUNDANT" AND A "REPETITION," IBID., AND CONCLUDES THAT
THE OATH, IN ITS ENTIRETY, IS SIMPLE "TO ABIDE BY THE CONSTITUTIONAL
SYSTEM IN THE FUTURE."  ANTE, AT 686. 

IF THE OATH IS VOID FOR VAGUENESS OR OVERBREADTH, IT IS BECAUSE THE
COMMON MEANING OF ITS WORDS IS SO IMPRECISE OR SO FARREACHING AS TO
PLACE A "CHILLING EFFECT" UPON CONSTITUTIONALLY PROTECTED EXPRESSION. 
THIS VICE-- READILY APPARENT IN THE PRESENT OATH-- IS EMPHASIZED RATHER
THAN AVOIDED BY THE MAJORITY'S OPINION.  THE TORTURED ROUTE WHICH THE
MAJORITY TAKES TO GIVE THIS OATH A SUPPOSEDLY CONSTITUTIONAL
INTERPRETATION MERELY EMPHASIZES THE UNCONSTITUTIONAL EFFECT THOSE
WORDS WOULD HAVE WERE THEY TO BE GIVEN THEIR NATURAL MEANING. 

/4/  THE OATH PROVIDED:  "I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I
WILL SUPPORT THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION
OF THE COMMONWEALTH OF MASSACHUSETTS, AND THAT I WILL FAITHFULLY
DISCHARGE THE DUTIES OF THE POSITION OF (INSERT NAME OF POSITION)
ACCORDING TO THE BEST OF MY ABILITY. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

APPELLEE WAS DISCHARGED FROM HER JOB WITH THE BOSTON STATE HOSPITAL
SOLELY BECAUSE SHE REFUSED TO SWEAR OR AFFIRM THE FOLLOWING OATH:  /1/ 
"I WILL UPHOLD AND DEFEND THE CONSTITUTION OF THE UNITED STATES OF
AMERICA AND THE CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS AND .
. . I WILL OPPOSE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES
OF AMERICA OR OF THIS COMMONWEALTH BY FORCE, VIOLENCE OR BY ANY ILLEGAL
OR UNCONSTITUTIONAL METHOD."  MASS. GEN. LAWS, C. 264, SEC. 14.  SHE
BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS SEEKING DECLARATORY AND INJUNCTIVE RELIEF
AGAINST ENFORCEMENT OF THE OATH AS A CONDITION OF HER EMPLOYMENT.  /2/
THE DISTRICT COURT FOUND THAT THE OATH WAS UNCONSTITUTIONALLY VAGUE AND
GRANTED THE RELIEF REQUESTED BY APPELLEE.  THE COURT NOW REVERSES THE
DISTRICT COURT AND SUSTAINS THE VALIDITY OF THE OATH IN ITS ENTIRETY. 
IN MY OPINION, THE SECOND HALF OF THE OATH IS NOT ONLY VAGUE, BUT ALSO
OVERBROAD.  ACCORDINGLY, I DISSENT. 

THE FIRST HALF OF THE OATH, REQUIRING AN EMPLOYEE TO INDICATE A
WILLINGNESS TO "UPHOLD AND DEFEND" THE STATE AND FEDERAL CONSTITUTIONS,
IS CLEARLY CONSTITUTIONAL.  IT IS NOTHING MORE THAN THE TRADITIONAL
OATH OF SUPPORT THAT WE HAVE UNANIMOUSLY UPHELD AS A CONDITION OF
PUBLIC EMPLOYMENT. 

IT IS THE SECOND HALF OF THE OATH TO WHICH I OBJECT.  I FIND THE
LANGUAGE "I WILL OPPOSE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES OF AMERICA OR OF THIS COMMONWEALTH BY FORCE, VIOLENCE OR BY ANY
ILLEGAL OR UNCONSTITUTIONAL METHOD" TO BE IMPERMISSIBLY VAGUE AND
OVERBROAD. 

IT IS VAGUE BECAUSE "MEN OF COMMON INTELLIGENCE (MUST) SPECULATE AT
THEIR PERIL ON ITS MEANING."  WHITEHILL V. ELKINS, 389 U.S. 54, 59
(1967).  SEE ALSO CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385,
391 (1926); CLINE V. FRINK DAIRY CO., 274 U.S. 445, 465 (1927);
LANZETTA V. NEW JERSEY, 306 U.S. 451, 453 (1939).  THE MOST STRIKING
PROBLEM WITH THE OATH IS THAT IT IS NOT CLEAR WHETHER THE LAST
PREPOSITIONAL PHRASE MODIFIES THE VERB "OPPOSE" OR THE NOUN
"OVERTHROW."  THUS, AN AFFIANT CANNOT BE CERTAIN WHETHER HE IS SWEARING
THAT HE WILL "OPPOSE" GOVERNMENTAL OVERTHROW BY UTILIZING EVERY MEANS
AT HIS DISPOSAL, INCLUDING THOSE SPECIFICALLY PROHIBITED BY THE LAWS OR
CONSTITUTIONS HE HAS SWORN TO SUPPORT, OR WHETHER HE HAS MERELY
ACCEPTED THE RESPONSIBILITY OF OPPOSING ILLEGAL OR UNCONSTITUTIONAL
OVERTHROWS.  THE FIRST READING WOULD ALMOST SURELY BE UNCONSTITUTIONAL
SINCE IT IS WELL ESTABLISHED THAT A STATE CANNOT COMPEL A CITIZEN TO
WAIVE THE RIGHTS GUARANTEED HIM BY THE CONSTITUTION IN ORDER TO OBTAIN
EMPLOYMENT.  SEE, E.G., PICKERING V. BOARD OF EDUCATION, 391 U.S. 563
(1968); GARRITY V. NEW JERSEY, 385 U.S. 493 (1967).  THIS READING WOULD
ALSO MAKE THE SECOND HALF OF THE OATH INCONSISTENT WITH THE FIRST
HALF.  IT IS FAR FROM CLEAR TO ME WHICH READING THE MASSACHUSETTS
LEGISLATURE INTENDED.  A REASONABLE MAN COULD CERTAINLY READ THE OATH
EITHER WAY, AND MASSACHUSETTS HAS NOT OFFERED TO MAKE A BINDING
CLARIFICATION OF ITS PURPORT. 

EVEN ASSUMING THAT THE SECOND READING WERE UNCONDITIONALLY ADOPTED
BY THE APPELLANTS AND COMMUNICATED TO PROSPECTIVE EMPLOYEES, THE VICE
OF VAGUENESS IS STILL NOT CURED, FOR THE AFFIANT IS LEFT WITH LITTLE
GUIDANCE AS TO THE RESPONSIBILITIES HE HAS ASSUMED IN TAKING THE OATH. 
IN WHAT FORM, FOR EXAMPLE, MUST HE MANIFEST HIS OPPOSITION TO AN
OVERTHROW?  AT ORAL ARGUMENT IN THE DISTRICT COURT, THE COMMONWEALTH'S
ATTORNEY ASSERTED THAT CITIZENS HAVE THREE STANDARDS OF OBLIGATION TO
THEIR GOVERNMENT TO OPPOSE OVERTHROWS: 

"THE ORDINARY CITIZEN WHO HAS TAKEN NO OATH HAS AN OBLIGATION TO ACT
IN EXTREMIS; A PERSON WHO HAS TAKEN THE FIRST PART OF THE PRESENT OATH
WOULD HAVE A SOMEWHAT LARGER OBLIGATION, AND ONE WHO HAS TAKEN THE
SECOND PART HAS ONE STILL LARGER."  300 F.SUPP.  1321, 1322.  /3/ I
AGREE WITH THE CONCLUSION OF THE DISTRICT COURT THAT "(THE VERY FACT
THAT SUCH VARIED STANDARDS . . . CAN BE SUGGESTED IS ENOUGH TO CONDEMN
THE LANGUAGE AS HOPELESSLY VAGUE."  ID., AT 1323. 

VAGUENESS IS ALSO INHERENT IN THE USE OF THE WORD "OVERTHROW."  WHEN
DOES AN AFFIANT'S UNDEFINED RESPONSIBILITY UNDER THE OATH REQUIRE
ACTION:  WHEN AN OVERTHROW IS THREATENED?  WHEN AN OVERTHROW IS LIKELY
TO BE THREATENED?  WHEN A THREATENED OVERTHROW HAS SOME CHANCE OF
SUCCESS?  CF. BRANDENBURG V. OHIO, 395 U.S. 444 (1969); YATES V. UNITED
STATES, 354 U.S. 298 (1957); DENNIS V. UNITED STATES, 341 U.S. 494
(1951).  THE OATH ANSWERS ONE OF THESE QUESIONS, AND FOR THAT REASON,
IF NO OTHER, CANNOT STAND. 

THE IMPORTANCE OF CLARITY AND PRECISION IN AN OATH OF THIS KIND
SHOULD NOT BE UNDERESTIMATED.  CHAPTER 264, SEC. 14, OF THE
MASSACHUSETTS GENERAL LAWS PROVIDES THAT THE OATH IS TAKEN SUBJECT TO
THE PAINS AND PENALTIES OF PERJURY, AND SEC. 15 OF THAT CHAPTER
SPECIFIES THAT THE PAINS AND PENALTIES MAY AMOUNT TO ONE YEAR IN PRISON
AND/OR A $10,000 FINE. 

IN CONCLUDING THAT THIS OATH IS VAGUE, I RELY ON BAGGETT V. BULLITT,
377 U.S. 360 (1964).  ONE PART OF THE OATH CONSIDERED IN BAGGETT, LIKE
THE MASSACHUSETTS OATH, REQUIRED THAT THE AFFIANT ASSERT A WILLINGNESS
TO CONFORM FUTURE CONDUCT TO THE CRITERIA SET FORTH IN AN OATH TAKEN
UNDER PENALTY OF PERJURY.  THE COURT STRUCK DOWN THE OATH IN BAGGETT,
AND MR. JUSTICE WHITE'S OPINION FOR THE COURT EXPLAINED IN GREAT DETAIL
THE INORDINATE DIFFICULTIES EMPLOYEES WOULD HAVE IN ATTEMPTING TO
CONFORM THEIR ACTIONS TO THE OATH'S CRITERIA.  ID., AT 371.  WHILE THE
OATH INVOLVED HEREIN DIFFERS SOMEWHAT FROM THAT INVOLVED IN BAGGETT,
THE CONSIDERATIONS IN BOTH CASES ARE THE SAME, AND THE RESULTS SHOULD
ALSO BE THE SAME. 

I WOULD ALSO STRIKE DOWN THE SECOND HALF OF THIS OATH AS AN
OVERBROAD INFRINGEMENT OF PROTECTED EXPRESSION AND CONDUCT. 

THE COURT'S PRIOR DECISIONS REPRESENT A JUDGMENT THAT SIMPLE
AFFIRMATIVE OATHS OF SUPPORT ARE LESS SUSPECT AND LESS EVIL THAN
NEGATIVE OATHS REQUIRING A DISAFFIRMANCE OF POLITICAL TIES, GROUP
AFFILIATIONS, OR BELIEFS.  COMPARE CONNELL V. HIGGINBOTHAM, 403 U.S.
207 (1971); KNIGHT V. BOARD OF REGENTS, 269 F.SUPP.  339 (SDNY 1967),
AFF'D, 390 U.S. 36 (1968); HOSACK V. SMILEY, 276 F.SUPP.  876 (COLO.
1967), AFF'D, 390 U.S. 744 (1968); OHLSON V. PHILLIPS, 304 F.SUPP. 
1152 (COLO. 1969), AFF'D, 397 U.S. 317 (1970), WITH WHITEHILL V.
ELKINS, 389 U.S. 54 (1967); BAGGETT V. BULLITT, SUPRA; CRAMP V. BOARD
OF PUBLIC INSTRUCTION, 368 U.S. 278 (1961); SPEISER V. RANDALL, 357
U.S. 513 (1958); WIEMAN V. UPDEGRAFF, 344 U.S. 183 (1952); GARNER V.
BOARD OF PUBLIC WORKS, 341 U.S. 716 (1951). 

YET, I THINK THAT IT IS PLAIN THAT AFFIRMATIVE OATHS OF LOYALTY, NO
LESS THAN NEGATIVE ONES, HAVE ODIOUS CONNOTATIONS AND THAT THEY PRESENT
DANGERS.  SEE ASPER, THE LONG AND UNHAPPY HISTORY OF LOYALTY TESTING IN
MARYLAND, 13 AM.J.LEGAL HIST. 97, 104 (1969); ASKIN, LOYALTY OATHS IN
RETROSPECT:  FREEDOM AND REALITY, 1968 WIS.L.REV.  498, 502; NOTE,
LOYALTY OATHS, 77 YALE L.J. 739, 763 (1968).  WE HAVE TOLERATED SUPPORT
OATHS AS APPLIED TO ALL GOVERNMENT EMPLOYEES ONLY BECAUSE WE VIEW THESE
AFFIRMATIONS AS AN EXPRESSION OF "MINIMAL LOYALTY TO THE GOVERNMENT." 
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 415 (1950).  SUCH
OATHS ARE MERELY INDICATIONS BY THE EMPLOYEE "IN ENTIRELY FAMILIAR AND
TRADITIONAL LANGUAGE, THAT HE WILL ENDEAVOR TO PERFORM HIS PUBLIC
DUTIES LAWFULLY."  LAW STUDENTS RESEARCH COUNCIL V. WADMOND, 401 U.S.
154, 192 (MARSHALL, J., DISSENTING). 

IT IS PRECISELY BECAUSE THESE OATHS ARE MINIMAL, REQUIRING ONLY THAT
NOMINAL EXPRESSION OF ALLEGIANCE "WHICH, BY THE COMMON LAW, EVERY
CITIZEN WAS UNDERSTOOD TO OWE HIS SOVEREIGN," KNIGHT V. BOARD OF
REGENTS, 269 F.SUPP.,AT 341, THAT THEY HAVE BEEN SUSTAINED.  THAT THEY
ARE MINIMAL INTRUSIONS INTO THE FREEDOM OF GOVERNMENT OFFICIALS AND
EMPLOYEES TO THINK, SPEAK, AND ACT MAKES THEM CONSTITUTIONAL; IT DOES
NOT MEAN THAT GREATER INTRUSIONS WILL BE TOLERATED.  ON THE CONTRARY,
EACH TIME THIS COURT HAS BEEN FACED WITH AN ATTEMPT BY GOVERNMENT TO
MAKE THE TRADITIONAL SUPPORT OATH MORE COMPREHENSIVE OR DEMANDING, IT
HAS STRUCK THE OATH DOWN.  SEE, E.G., CONNELL V. HIGGINBOTHAM, SUPRA;
BAGGETT V. BULLITT, SUPRA; CF. BOND V. FLOYD, 385 U.S. 116 (1966). 

WHEN FACED WITH AN "IMMINENT CLEAR AND PRESENT DANGER," GOVERNMENTS
MAY BE ABLE TO COMPEL CITIZENS TO DO THINGS THAT WOULD ORDINARILY BE
BEYOND THEIR AUTHORITY TO MANDATE.  BUT, SUCH EMERGENCY GOVERNMENTAL
POWER IS A FAR CRY FROM COMPELLING EVERY STATE EMPLOYEE IN ADVANCE OF
ANY SUCH DANGER TO PROMISE IN ANY AND ALL CIRCUMSTANCES TO CONFORM
SPEECH AND CONDUCT TO OPPOSING AN "OVERTHROW" OF THE GOVERNMENT.  THE
CONSTITUTION SEVERELY CIRCUMSCRIBES THE POWER OF GOVERNMENT TO FORCE
ITS CITIZENS TO PERFORM SYMBOLIC GESTURES OF LOYALTY.  CF. BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624 (1943).  SINCE THE OVERBREADTH OF
THE OATH TENDS TO INFRINGE AREAS OF SPEECH AND CONDUCT THAT MAY BE
PROTECTED BY THE CONSTITUTION, I BELIEVE THAT IT CANNOT STAND.  SEE
WHITEHILL V. ELKINS, SUPRA; BAGGETT V. BULLITT, SUPRA; WIEMAN V.
UPDEGRAFF, SUPRA; SHELTON V. TUCKER, 364 U.S. 479 (1960). 

BECAUSE ONLY THE SECOND HALF OF THE OATH IS INVALID, I WOULD
NORMALLY FAVOR SEVERING THE STATUTE AND STRIKING ONLY THE SECOND PART. 
SEE CONNELL V. HIGGENBOTHAM, SUPRA.  HOWEVER, WHEN CONFRONTED WITH AN
OATH STRIKINGLY SIMILAR TO THAT BEFORE US, THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS HELD THAT THE TWO PORTIONS OF THE OATH WERE NOT
SEVERABLE.  PEDLOSKY V. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, 352
MASS. 127, 224 N.E.2D 414 (1967).  THIS COURT MUST BOW TO STATE COURTS
IN THEIR CONSTRUCTION OF STATE LEGISLATION.  THEREFORE, WE MUST BOW TO
THE DECISION OF THE STATE COURT AND STRIKE THE OATH IN ITS ENTIRETY. 

BEFORE CONCLUDING, I ADD ONE ADDITIONAL WORD ABOUT LOYALTY OATHS IN
GENERAL.  THEY HAVE BECOME SO PREVALENT IN OUR COUNTRY THAT FEW
AMERICANS HAVE NOT AT ONE TIME OR ANOTHER TAKEN AN OATH TO SUPPORT
FEDERAL AND STATE GOVERNMENTS.  SUCH OATHS ARE NOT ONLY REQUIRED AS A
CONDITION OF GOVERNMENT EMPLOYEMTN, BUT OFTEN AS A PREREQUISITE TO
ENTERING MILITARY SERVICE, TO OBTAINING CITIZENSHIP, TO SECURING A
PASSPORT OR AN EDUCATIONAL LOAN OR COUNTLESS OTHER GOVERNMENT
OFFERINGS.  PERHAPS WE HAVE BECOME SO INUNDATED WITH A VARIETY OF THESE
OATHS THAT WE TEND TO IGNORE THE DIFFICULT CONSTITUTIONAL ISSUES THAT
THEY PRESENT.  IT IS THE DUTY OF JUDGES, HOWEVER, TO ENDEAVOR TO REMAIN
SENSITIVE TO THESE ISSUES AND NOT TO "ENCOURAGE THE CASUAL TAKING OF
OATHS BY UPHOLDING THE DISCHARGE OR EXCLUSION FROM PUBLIC EMPLOYMENT OF
THOSE WITH A CONSCIENTIOUS AND SCRUPULOUS REGARD FOR SUCH
UNDERTAKINGS."  BAGGETT V. BULLITT, SUPRA, AT 373-374. 

LOYALTY OATHS DO NOT HAVE A VERY PLEASANT HISTORY IN THIS COUNTRY. 
WHEREAS THEY MAY BE DEVELOPED INITIALLY AS A MEANS OF FOSTERING POWER
AND CONFIDENCE IN GOVERNMENT, THERE IS A DANGER THAT THEY WILL SWELL
"INTO AN INSTRUMENT OF THOUGHT CONTROL AND A MEANS OF ENFORCING
COMPLETE POLITICAL CONFORMITY."  ASPER, THE LONG AND UNHAPPY HISTORY OF
LOYALTY TESTING IN MARYLAND, 13 AM.J.LEGAL HIST. 97, 108 (1969). 
WITHIN THE LIMITS OF THE CONSTITUTION IT IS, OF COURSE, FOR THE
LEGISLATORS TO WEIGH THE UTILITY OF THE OATHS AND THEIR POTENTIAL
DANGERS AND TO STRIKE A BALANCE.  BUT, AS A PEOPLE, WE SHOULD ALWAYS
KEEP IN MIND THE WORDS OF MR. JUSTICE BLACK, CONCURRING IN SPEISER V.
RANDALL, 357 U.S.,AT 532: 

     "LOYALTY OATHS, AS WELL AS OTHER CONTEMPORARY 'SECURITY

  MEASURES,' TEND TO STIFLE ALL FORMS OF UNORTHODOX OR UNPOPULAR

  THINKING OR EXPRESSION-- THE KIND OF THOUGHT AND EXPRESSION WHICH

  HAS PLAYED SUCH A VITAL AND BENEFICIAL ROLE IN THE HISTORY OF

  THIS NATION.  THE RESULT IS A STULTIFYING CONFORMITY WHICH IN THE

  END MAY WELL TURN OUT TO BE MORE DESTRUCTIVE TO OUR FREE SOCIETY

  THAN FOREIGN AGENTS COULD EVER HOPE TO BE. . . . I AM CERTAIN

THAT LOYALTY TO THE UNITED STATES CAN NEVER BE SECURED BY THE

  ENDLESS PROLIFERATION OF 'LOYALTY' OATHS; LOYALTY MUST ARISE

  SPONTANEOUSLY FROM THE HEARTS OF PEOPLE WHO LOVE THEIR COUNTRY

  AND RESPECT THEIR GOVERNMENT." 

ACCORDINGLY, I WOULD AFFIRM THE DECISION OF THE DISTRICT COURT. 

/1/  APPELLEE WAS NOT REQUESTED TO TAKE THE OATH BEFORE SHE BEGAN HER
EMPLOYMENT.  THE REASONS FOR THE FAILURE OF THE HOSPITAL OFFICIALS TO
REQUIRE THE OATH AS A PREREQUISITE TO EMPLOYMENT ARE NOT READILY
APPARENT FROM THE RECORD.  IN ANY EVENT, THE OATH WAS REQUIRED OF ALL
STATE EMPLOYEES AT ALL RELEVANT TIMES. 

/2/  APPELLEE ALSO SOUGHT DAMAGES FOR BACK WAGES ALLEGEDLY OWED.  IT
IS APPARENT THAT ALL BACK WAGES HAVE NOW BEEN PAID.  THUS, THIS CLAIM
IS NO LONGER IN CONTROVERSY.  THE DISTRICT COURT REJECTED APPELLEE'S
BELATED ATTEMPT TO MAKE A CLAIM FOR LOSS OF WAGES DUE TO TERMINATION,
AND THIS DECISION WAS WELL WITHIN ITS DISCRETION UNDER RULE 15 OF THE
FEDERAL RULES OF CIVIL PROCEDURE. 

/3/  IT IS CLEAR THAT BOTH SPEECH AND CONDUCT ARE AFFECTED BY THIS
PORTION OF THE OATH.  APPELLANTS CONCEDED AS MUCH IN THEIR BRIEF IN THE
COURT BELOW: 

"(IN THE EVENT THAT A CLEAR AND PRESENT DANGER AROSE OF THE ACTUAL
OVERTHROW OF THE GOVERNMENT, . . . THE PUBLIC EMPLOYEE (WOULD) BE
REQUIRED TO USE REASONABLE MEANS AT HIS DISPOSAL TO ATTEMPT TO THWART
THAT EFFORT.  WHAT HE MIGHT DO IN SUCH CIRCUMSTANCES COULD RANGE FROM
THE USE OF PHYSICAL FORCE TO SPEAKING OUT AGAINST THE DOWNFALL OF THE
GOVERNMENT.  THE KIND OF RESPONSE REQUIRED WOULD BE COMMENSURATE WITH
THE CIRCUMSTANCES AND WITH THE EMPLOYEE'S ABILITY, HIS TRAINING, AND
THE MEANS AVAILABLE TO HIM AT THE TIME;"  QUOTED AT 300 F.SUPP.,AT
1322. 

THE FINAL SENTENCE OF THIS QUOTATION EVIDENCES THE CONFUSION THAT
THE STATE CONFESSES ABOUT THE RESPONSIBILITIES ASSUMED BY EMPLOYEES IN
TAKING THE OATH. 

IN LIGHT OF THE ARGUMENTS THAT THE APPELLANTS MAKE, I FIND IT
IMPOSSIBLE TO AGREE WITH THE COURT, THAT A CITIZEN WHO TAKES THE FIRST
PART OF THE OATH HAS MORE OF A DUTY TO HIS GOVERNMENT THAN ONE WHO
TAKES NO OATH, AND THAT ONE WHO TAKES THE SECOND PART OF THE OATH HAS A
STILL GREATER DUTY.  WHILE THE APPELLANTS ARE UNSURE AS TO WHERE AND
HOW FAR THAT DUTY EXTENDS, THEY NEVER HAVE SUGGESTED THAT IT SIMPLY
DOES NOT EXIST.  THE ARGUMENT IS EVEN MADE THAT THE DUTY EXTENDS TO THE
USE OF PHYSICAL FORCE.     WERE WE FACED WITH MERELY A TRADITIONAL OATH
OF SUPPORT, I WOULD JOIN THE COURT.  I SHARE THE COURT'S DISMAY AT
HAVING TO HOLD STATE LEGISLATION UNCONSTITUTIONAL, BUT I CANNOT IGNORE
THE THRUST THAT A STATE WOULD GIVE ITS STATUTES.  CF. PEDLOSKY V.
MASSACHUSETTS INSTITUTE OF TECHNOLOGY, 352 MASS. 127, 224 N.E.2D 414
(1967). 

WALTER H. MAYO III, ASSISTANT ATTORNEY GENERAL OF MASSACHUSETTS,
ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WAS ROBERT H.
QUINN, ATTORNEY GENERAL. 

STEPHEN H. OLESKEY ARGUED THE CAUSE FOR THE APPELLEE PRO HAC VICE. 
WITH HIM ON THE BRIEF WAS HAROLD HESTNES. 
..END :
















GRUBBS V. GENERAL ELECTRIC CREDIT CORP., 405 U.S. 699 


       GRUBBS, DBA T. R. GRUBBS TIRE & APPLIANCE V. GENERAL

           ELECTRIC CREDIT CORP.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

        NO. 71-257.  ARGUED MARCH 23, 1972-- DECIDED APRIL 18,
1972 


RESPONDENT, A NEW YORK CORPORATION, BROUGHT SUIT FOR $66,000 ON A
PROMISSORY NOTE AGAINST PETITIONER, A CITIZEN OF TEXAS, IN A TEXAS
STATE COURT, AND PETITIONER FILED A CROSS-ACTION FOR $25,000 SEEKING
DAMAGES FOR SLANDER, CONVERSION, AND CONSPIRACY IN RESTRAINT OF TRADE. 
A LATER CROSS-ACTION INCLUDED THE UNITED STATES, WHICH HELD A JUDGMENT
AGAINST PETITIONER, AS A PARTY DEFENDANT.  THE ACTION WAS REMOVED TO
THE FEDERAL DISTRICT COURT FOR TRIAL OF THE ISSUES, ON PETITION OF THE
UNITED STATES.  THE DISTRICT COURT, WITHOUT OBJECTION, CONSIDERED ALL
THE ISSUES AND AWARDED PETITIONER A $20,000 JUDGMENT AGAINST
RESPONDENT.  THE COURT OF APPEALS, SUA SPONTE, HELD THAT THE DISTRICT
COURT LACKED JURISDICTION AND ORDERED THE CASE RETURNED TO THE STATE
COURT.  HELD:  WHERE AFTER REMOVAL A CASE IS TRIED ON THE MERITS
WITHOUT OBJECTION AND THE FEDERAL COURT ENTERS A JUDGMENT, THE ISSUE ON
APPEAL IS NOT WHETHER THE CASE WAS PROPERLY REMOVED, BUT WHETHER THE
DISTRICT COURT WOULD HAVE HAD ORIGINAL JURISDICTION IF THE CASE HAD
BEEN FILED IN THAT COURT.  HERE THERE WAS DIVERSITY JURISDICTION IN THE
DISTRICT COURT IF THE ACTION HAD BEEN BROUGHT THERE ORIGINALLY.  PP.
702-706. 

447 F.2D 286, REVERSED AND REMANDED. 

REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

PETITIONER RECOVERED A MONEY JUDGMENT AGAINST RESPONDENT IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, AND
RESPONDENT APPEALED TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT.  THAT COURT HELD THE DISTRICT COURT LACKED JURISDICTION OF THE
CASE, AND REVERSED THE JUDGMENT WITH INSTRUCTIONS THAT THE CASE BE
REMANDED TO THE TEXAS STATE COURT WHENCE IT HAD BEEN REMOVED.  THIS
COURT GRANTED CERTIORARI, 404 U.S. 983.  WE HAVE CONCLUDED THAT,
WHETHER OR NOT THE CASE WAS PROPERLY REMOVED, THE DISTRICT COURT DID
HAVE JURISDICTION OF THE PARTIES AT THE TIME IT ENTERED JUDGMENT. 
UNDER SUCH CIRCUMSTANCES THE VALIDITY OF THE REMOVAL PROCEDURE FOLLOWED
MAY NOT BE RAISED FOR THE FIRST TIME ON APPEAL, AND WE ACCORDINGLY
REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

IN SEPTEMBER 1964 RESPONDENT GENERAL ELECTRIC CREDIT CORP. (GECC)
COMMENCED A LAWSUIT AGAINST PETITIONER GRUBBS BY THE FILING OF A
PETITION IN THE TEXAS STATE TRIAL COURT.  THE PETITION SOUGHT RECOVERY
UPON A PROMISSORY NOTE CLAIMED TO HAVE BEEN PREVIOUSLY EXECUTED BY
PETITIONER TO GECC IN THE PRINCIPAL SUM OF $66,000.  TWO YEARS LATER,
PETITIONER GRUBBS FILED AN AMENDED ANSWER AND "CROSS-ACTION," SEEKING
DAMAGES FROM RESPONDENT AND FROM THE GENERAL ELECTRIC CO. (GE) BY
REASON OF ALLEGED SLANDER, CONVERSION, AND CONSPIRACY IN RESTRAINT OF
TRADE.  /1/  GE APPEARED IN THE STATE COURT IN ANSWER TO PETITIONER'S
CROSS-ACTION AGAINST IT, AND RESONDENT LIKEWISE FILED AN ANSWER. 

THE FOLLOWING YEAR, PETITIONER FILED A SECOND AMENDED ANSWER AND
CROSS-ACTIONS, ONE OF WHICH INCLUDED THE UNITED STATES AS AN ADDED
PARTY DEFENDANT.  THE BASIS ASSERTED BY PETITIONER FOR NAMING THE
UNITED STATES AS A PARTY WAS THE FACT THAT THE LATTER HELD AN
OUTSTANDING JUDGMENT AGAINST PETITIONER, AS DID SEVERAL OF HIS OTHER
CREDITORS, AND PETITIONER PRAYED THE STATE COURT TO DETERMINE
PRIORITIES AMONG THE JUDGMENT LIENS.  RESPONDING TO THE GATHERING
MOMENTUM OF THIS LONG-DORMANT LAWSUIT, THE UNITED STATES THEN FILED IN
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS A
PETITION FOR REMOVAL OF THE ACTION TO THAT COURT "FOR TRIAL AND
DETERMINATION UPON THE MERITS OF ALL ISSUES OR CLAIMS THEREIN, AS IS
PROVIDED BY TITLE 28, SECTIONS) 1444, 1441(C) AND 1446." 

ALL OF THE PARTIES TREATED THE EFFECT OF THE REMOVAL PETITION AS
PLACING BEFORE THE DISTRICT COURT NOT ONLY THE CLAIM BY PETITIONER
AGAINST THE UNITED STATES FOR ADJUDICATION OF LIEN PRIORITIES, BUT ALSO
RESPONDENT'S CLAIM AGAINST PETITIONER ON THE PROMISSORY NOTE AND
PETITIONER'S CLAIM FOR DAMAGES AGAINST RESPONDENT BASED ON CONSPIRACY
TO RESTRAIN TRADE AND TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS. 

AT NO TIME FOLLOWING THE FILING OF THE REMOVAL PETITION BY THE
UNITED STATES DID RESPONDENT, BY MOTION TO REMAND OR OTHERWISE, OBJECT
TO THE DISTRICT COURT'S TAKING JURISDICTION OF THE ENTIRE "ACTION."  IN
THAT COURT, THE UNITED STATES ANSWERED PETITIONER'S CROSS-ACTION AND
FILED ITS OWN "CROSS-ACTION" AGAINST RESPONDENT AND GE, ASSERTING THAT
THE LATTER TWO HAD MALICIOUSLY INTERFERED WITH THE CONTRACTUAL
RELATIONSHIP BETWEEN PETITIONER AND THE UNITED STATES, AND SEEKING
DAMAGES AS A RESULT OF THIS ALLEGED WRONG. 

THE CASE WAS ULTIMATELY TRIED TO THE DISTRICT COURT WITHOUT A JURY. 
THAT COURT HELD AGAINST RESPONDENT ON ITS PROMISSORY-NOTE CLAIM, HELD
IN FAVOR OF PETITIONER ON HIS CLAIM AGAINST RESPONDENT FOR TORTIOUS
INTERFERENCE, AND AWARDED $20,000 DAMAGES THEREON, AND DISMISSED THE
CLAIMS OF PETITIONER AND THE UNITED STATES AGAINST GE AND THE CLAIM OF
THE UNITED STATES AGAINST RESPONDENT.  THE COURT FURTHER FOUND THAT IT
WAS UNABLE TO DETERMINE THE PRIOIRTY OF LIENS AS BETWEEN THE VARIOUS
PARTIES.  JUDGMENT WAS ACCORDINGLY ENTERED IN FAVOR OF PETITIONER
GRUBBS AND AGAINST RESPONDENT GECC IN THE AMOUNT OF $20,000, AND
PROVIDING THAT THE REMAINING PARTIES TAKE NOTHING BY THEIR ACTIONS. 

GECC APPEALED TO THE COURT OF APPEALS, WHICH ON ITS OWN MOTION
QUESTIONED THE JURISDICTION OF THE DISTRICT COURT.  AFTER CALLING FOR
SUPPLEMENTAL BRIEFS ON THE ISSUE, THE COURT OF APPEALS DECIDED THAT THE
ONLY CONCEIVABLE BASIS FOR JURISDICTION OF THE ACTION IN THE DISTRICT
COURT WAS THE REMOVAL BY THE UNITED STATES PURPORTEDLY IN ACCORDANCE
WITH 28 U.S.C. 1444.  THAT COURT HELD, HOWEVER, THAT PETITIONER'S
"INTERPLEADER" OF THE UNITED STATES AND OTHER PARTIES FOR A
DETERMINATION OF PRIORITY OF JUDGMENT LIENS WAS A SPURIOUS BASIS FOR
JOINING THE UNITED STATES AS A PARTY DEFENDANT UNDER 28 U.S.C. 2410. 
THEREFORE, IN THE VIEW OF THAT COURT, THE PROVISIONS OF 28 U.S.C. 1444,
AUTHORIZING REMOVAL BY THE UNITED STATES OF AN ACTION BROUGHT UNDER 28
U.S.C. 2410, WERE NOT AVAILABLE TO THE GOVERNMENT.  CONCLUDING, THUS,
THAT THE REMOVAL HAD NOT BEEN AUTHORIZED BY STATUTE, THE COURT OF
APPEALS DECIDED THAT THERE WAS NO OTHER BASIS FOR THE DISTRICT COURT'S
JURISDICTION OF THE ACTION, AND THAT THE CASE SHOULD BE REMANDED TO THE
STATE COURT IN WHICH IT HAD ORIGINATED. 

LONGSTANDING DECISIONS OF THIS COURT MAKE CLEAR, HOWEVER, THAT WHERE
AFTER REMOVAL A CASE IS TRIED ON THE MERITS WITHOUT OBJECTION AND THE
FEDERAL COURT ENTERS JUDGMENT, THE ISSUE IN SUBSEQUENT PROCEEDINGS ON
APPEAL IS NOT WHETHER THE CASE WAS PROPERLY REMOVED, BUT WHETHER THE
FEDERAL DISTRICT COURT WOULD HAVE HAD ORIGINAL JURISDICTION OF THE CASE
HAD IT BEEN FILED IN THAT COURT.  IN BAGGS V. MARTIN, 179 U.S. 206
(1900), A RECEIVER APPOINTED BY A FEDERAL COURT WAS SUED IN STATE COURT
AND REMOVED THE ACTION TO THE FEDERAL COURT THAT APPOINTED HIM. 
FOLLOWING JUDGMENT ON THE MERITS, THE RECEIVER SOUGHT REVERSAL OF THE
JUDGMENT ON THE GROUND THAT THE CASE WAS NOT PROPERLY REMOVABLE FROM
THE STATE COURT.  SINCE THE FEDERAL COURT THAT HAD EARLIER APPOINTED
THE RECEIVER WOULD HAVE HAD ORIGINAL JURISDICTION OF AN ACTION AGAINST
HIM, THIS COURT HELD THAT HE COULD NOT THEN OBJECT TO THE REMOVAL OF
THE CASE WHEN REMOVAL HAD COME AS A RESULT OF HIS OWN ACTION. 

MACKAY V. UINTA DEVELOPMENT CO., 229 U.S. 173 (1913), DEALTH WITH AN
ACTION THAT HAD BEEN COMMENCED IN THE WYOMING STATE COURT BETWEEN TWO
CITIZENS OF DIFFERENT STATES.  PLAINTIFF'S CLAIM WAS FOR LESS THAN THE
JURISDICTIONAL AMOUNT, BUT DEFENDANT'S COUNTERCLAIM EXCEEDED THE
JURISDICTIONAL AMOUNT.  THE CASE WAS REMOVED TO FEDERAL COURT WITHOUT
OBJECTION BY EITHER PARTY, AND THERE TRIED ON THE MERITS.  WHEN THE
LOSING PARTY LATER SOUGHT TO UPSET A JUDGMENT AGAINST HIM ON THE MERITS
BECAUSE OF FAILURE TO COMPLY WITH THE REMOVAL STATUTES, THIS COURT
REJECTED THE CLAIM, SAYING: 

"(REGARDLESS OF THE MANNER IN WHICH THE CASE WAS BROUGHT OR HOW THE
ATTENDANCE OF THE PARTIES IN THE UNITED STATES COURT WAS SECURED, THERE
WAS PRESENTED TO THE CIRCUIT COURT A CONTROVERSY BETWEEN CITIZENS OF
DIFFERENT STATES IN WHICH THE AMOUNT CLAIMED BY ONE NON-RESIDENT WAS
MORE THAN $2,000, EXCLUSIVE OF INTEREST AND COSTS.  AS THE COURT HAD
JURISDICTION OF THE SUBJECT-MATTER THE PARTIES COULD HAVE BEEN
REALIGNED BY MAKING MACKAY PLAINTIFF AND THE DEVELOPMENT COMPANY
DEFENDANT, IF THAT HAD BEEN FOUND PROPER.  BUT IF THERE WAS ANY
IRREGULARITY IN DOCKETING THE CASE OR IN THE ORDER OF THE PLEADINGS
SUCH AN IRREGULARITY WAS WAIVABLE AND NEITHER IT NOR THE METHOD OF
GETTING THE PARTIES BEFORE THE COURT OPERATED TO DEPRIVE IT OF THE
POWER TO DETERMINE THE CAUSE."  ID., AT 176-177. 

APPLYING THIS DOCTRINE TO THE CASE BEFORE US, WE NOTE THAT THE
PARTIES CONCEDE IN THEIR BRIEFS THAT PETITIONER IS A CITIZEN OF TEXAS,
AND THAT RESPONDENT AND GE ARE CITIZENS OF NEW YORK FOR PURPOSES OF
DIVERSITY JURISDICTION.  THIS CONCESSION IS SUPPORTED BY EXCERPTS FROM
DISCOVERY PROCEEDINGS INCLUDED IN THE RECORD.  RESPONDENT GECC IN ITS
PLEADING INITIATING THE ACTION IN THE STATE TRIAL COURT SOUGHT RECOVERY
OF $66,000 FROM PETITIONER GRUBBS; GRUBBS IN HIS STATE COURT CROSS
ACTION SOUGHT RECOVERY OF $25,000 FROM RESPONDENT.  THERE WAS THUS
DIVERSITY JURISDICTION IN THE FEDERAL DISTRICT COURT UNDER 28 U.S.C.
1332 IF THE ACTION HAD BEEN BROUGHT IN THAT COURT ORIGINALLY. 

IN AMERICAN FIRE & CASUALTY CO. V. FINN, 341 U.S. 6 (1951), THIS
COURT HELD THAT THE RULE ENUNCIATED IN BAGGS V. MARTIN, SUPRA, HAD NO
APPLICATION TO A CASE WHERE AT THE TIME OF JUDGMENT CITIZENS OF THE
SAME STATE WERE ON BOTH SIDES OF THE LITIGATION.  THERE THE STATE COURT
PLAINTIFF HAD JOINED TWO INSURANCE CARRIERS AND THEIR LOCAL AGENT IN AN
ACTION TO RECOVER FOR A FIRE LOSS.  FINN HELD THAT THE DISPUTE BETWEEN
THE PLAINTIFF AND THE INSURANCE CARRIERS WAS NOT A "SEPARATE AND
INDEPENDENT CLAIM OR CAUSE OF ACTION" UNDER 28 U.S.C. 1441(C), AND THAT
THEREFORE REMOVAL OF THE ACTION TO A FEDERAL COURT BY ONE OF THE
CARRIERS WAS UNAUTHORIZED BY STATUTE.  SINCE COMPLETE DIVERSITY DID NOT
OBTAIN EVEN AS OF THE DATE OF JUDGMENT, AND SINCE THERE WAS NO OTHER
BASIS FOR FEDERAL JURISDICTION, THIS COURT REVERSED THE JUDGMENT OF THE
COURT OF APPEALS, WHICH HAD HELD THE CASE PROPERLY REMOVABLE. 

IN THIS CASE THERE WERE, OF COURSE, PARTIES OTHER THAN PETITIONER,
RESPONDENT, AND GE, BOTH AT THE TIME OF REMOVAL AND AT THE TIME OF
JUDGMENT.  INDEED, THE CASE MIGHT BE SAID TO ABOUND IN PARTIES. 
PETITIONER IN HIS "CROSS-ACTION" AGAINST THE UNITED STATES FOR
DETERMINATION OF LIEN PRIORITIES ASSERTED A CLAIM AGAINST AN ADDITIONAL
PARTY THAT HAD VIRTUALLY NO RELATIONSHIP TO THE CLAIM OR RELIEF SOUGHT
BY PETITIONER AGAINST RESPONDENT, OR THAT SOUGHT BY RESPONDENT AGAINST
PETITIONER.  /2/ 

WHILE, OF COURSE, TEXAS IS FREE TO ESTABLISH SUCH RULES OF PRACTICE
FOR HER OWN COURTS AS SHE CHOOSES, THE REMOVAL STATUTES AND DECISIONS
OF THIS COURT ARE INTENDED TO HAVE UNIFORM NATIONWIDE APPLICATION. 
"HENCE THE ACT OF CONGRESS MUST BE CONSTRUED AS SETTING UP ITS OWN
CRITERIA, IRRESPECTIVE OF LOCAL LAW, FOR DETERMINING IN WHAT INSTANCES
SUITS ARE TO BE REMOVED FROM THE STATE TO THE FEDERAL COURTS." 
SHAMROCK OIL CORP. V. SHEETS, 313 U.S. 100, 104 (1941).  THE RULE
ENUNCIATED IN BAGGS V. MARTIN, SUPRA, MACKAY V. UINTA DEVELOPMENT CO.,
SUPRA, AND AMERICAN FIRE & CASUALTY CO. V. FINN, SUPRA, LIKEWISE LAYS
DOWN A DOCTRINE THAT IS INTENDED TO HAVE UNIFORM NATIONWIDE
APPLICATION.  HOWEVER MANY PARTIES, CROSS-CLAIMS, OR INDEED LAWSUITS
TEXAS PRACTICE MAY PERMIT TO BE JOINED IN ONE "CASE" OR ONE "ACTION,"
THE REQUIREMENT OF FINN WAS APPLIED IN THE CONTEXT OF A TWO-SIDED
LAWSUIT.  WE CONCLUDE THAT THE REQUIREMENT THAT JURISDICTION EXIST AT
THE TIME OF JUDGMENT, STATED IN THAT CASE, IS SATISFIED HERE WHERE THE
DISTRICT COURT HAD JURISDICTION TO RENDER JUDGMENT AS BETWEEN THE
PLAINTIFF-COUNTER-DEFENDANT, THE DEFENDANT-COUNTERCLAIMANT, AND THE
ADDITIONAL COUNTER-DEFENDANT.  IT WOULD SERVE NO PURPOSE TO REQUIRE
THAT IN ORDER TO SUSTAIN JURISDICTION IN SUCH A CASE, THE PREVAILING
PARTY IN THE ORIGINAL TWO-SIDED LITIGATION MUST GO FURTHER AND SHOW
THAT THERE WAS LIKEWISE JURISDICTION AS TO VIRTUALLY UNRELATED CLAIMS
THAT THE STATE COURT HAD PERMITTED TO BE JOINED IN THE SAME LAWSUIT. 

FINDING THAT THE NECESSARY JURISDICTION DID EXIST, WE REVERSE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE TO THAT COURT FOR
CONSIDERATION OF RESPONDENT'S APPEAL ON THE MERITS. 

              REVERSED AND REMANDED. 

/1/  THE BUSINESS RELATIONSHIP OF THE PARTIES WAS AS FOLLOWS. 
GRUBBS WAS A FRANCHISED DEALER FOR GE.  GECC PROVIDED FINANCING FOR
CUSTOMERS OF GRUBBS WHO PURCHASED GE PRODUCTS. 

/2/  PETITIONER'S STATE COURT CROSS-ACTION AGAINST THE UNITED STATES
WAS BY ITS TERMS BASED ON "RULE 22 OF THE U.S. RULES OF CIVIL
PROCEDURE."  HOWEVER, UNDER FED. RULE CIV. PROC. 22, A DEFENDANT
SEEKING INTERPLEADER MUST FRAME HIS PLEADING EITHER AS A CROSS-CLAIM
SEEKING RELIEF AGAINST A CO-PARTY ALREADY IN THE LAWSUIT, OR AS A
COUNTERCLAIM SEEKING RELIEF AGAINST THE PLAINTIFF.  IF THE DEFENDANT
STATES A CLAIM SEEKING RELIEF AGAINST SUCH A CO-PARTY OR PLAINTIFF
COUNTER-DEFENDANT, HE MAY SEEK TO BRING IN ADDITIONAL PARTIES UNDER THE
JOINDER PROVISIONS OF RULE 20.  BUT THE INTERPLEADER PROVIDED BY RULE
22 MUST HAVE SOME NEXUS WITH A PARTY ALREADY IN THE CASE.  AS NOTED
ABOVE, PETITIONER'S INTERPLEADER CLAIM SOUGHT NO RELIEF AGAINST ANY
OTHER PARTY IN THE ACTION. 

BILL J. CORNELIUS ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS J. R. CORNELIUS. 

HUBERT D. JOHNSON ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :






ALEXANDER V. LOUISIANA, 405 U.S. 625 


       ALEXANDER V. LOUISIANA

        CERTIORARI TO THE SUPREME COURT OF LOUISIANA

        NO. 70-5026.  ARGUED DECEMBER 6-7, 1971-- DECIDED APRIL 3,

           1972 


PETITIONER, A NEGRO, ATTACKS HIS RAPE CONVICTION IN LAFAYETTE PARISH,
WHICH WAS AFFIRMED BY THE LOUISIANA SUPREME COURT, CONTENDING THAT THE
GRAND JURY SELECTION PROCEDURES FOLLOWED IN HIS CASE WERE INVIDIOUSLY
DISCRIMINATORY AGAINST NEGROES AND, BECAUSE OF A STATUTORY EXEMPTION
PROVISION, AGAINST WOMEN.  THE JURY COMMISSIONERS (ALL WHITE) SENT OUT
QUESTIONNAIRES (INCLUDING A SPACE FOR RACIAL DESIGNATION) TO THOSE ON A
LIST COMPILED FROM NONRACIAL SOURCES.  OF THE 7,000-ODD RETURNS, 1,015
(14%) WERE FROM NEGROES, THOUGH NEGROES CONSTITUTED 21% OF THE PARISH
POPULATION PRESUMPTIVELY ELIGIBLE FOR GRAND JURY SERVICE.  BY MEANS OF
TWO CULLING-OUT PROCEDURES, WHEN RACIAL IDENTIFICATIONS THAT THE
COMMISSIONERS HAD ATTACHED TO THE FORMS WERE PLAINLY VISIBLE, THE POOL
WAS REDUCED TO 400, OF WHOM 27 (7%) WERE NEGRO, FROM WHICH GROUP THE 20
MAN GRAND JURY VENIRES WERE DRAWN.  PETITIONER'S VENIRE INCLUDED ONE
NEGRO (5%), AND THE GRAND JURY THAT INDICTED HIM HAD NONE.  THERE WAS
NO EVIDENCE OF CONSCIOUS RACIAL SELECTION AND ONE COMMISSIONER
TESTIFIED THAT RACE WAS NO CONSIDERATION.  HELD: 

1.  PETITIONER MADE OUT A PRIMA FACIE CASE OF INVIDIOUS RACIAL
DISCRIMINATION IN THE SELECTION OF THE GRAND JURY THAT INDICTED HIM--
NOT ONLY ON A STATISTICAL BASIS BUT BY A SHOWING THAT THE SELECTION
PROCEDURES WERE NOT RACIALLY NEUTRAL-- AND THE STATE, WHICH DID NOT
ADEQUATELY EXPLAIN THE DISPROPORTIONATELY LOW NUMBER OF NEGROES
THROUGHOUT THE SELECTION PROCESS, DID NOT MEET THE BURDEN OF REBUTTING
THE PRESUMPTION OF UNCONSTITUTIONALITY IN THE PROCEDURES USED.  CF.
AVERY V. GEORGIA, 345 U.S. 559; WHITUS V. GEORGIA, 385 U.S. 545, PP.
628-632. 

2.  PETITIONER'S CONTENTIONS REGARDING DISCRIMINATION AGAINST WOMEN
IN THE SELECTION OF GRAND JURORS ARE NOT REACHED.  PP. 633-634. 

255 LA. 941, 233 SO.2D 821, REVERSED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED, AND IN
PART I OF WHICH DOUGLAS, J., JOINED.  DOUGLAS, J., FILED A CONCURRING
OPINION, POST, P. 634.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

AFTER A JURY TRIAL IN THE DISTRICT COURT FOR THE FIFTEENTH JUDICIAL
DISTRICT OF LAFAYETTE PARISH, LOUISIANA, PETITIONER, A NEGRO, WAS
CONVICTED OF RAPE AND SENTENCED TO LIFE IMPRISONMENT.  HIS CONVICTION
WAS AFFIRMED ON APPEAL BY THE LOUISIANA SUPREME COURT, /1/  AND THIS
COURT GRANTED CERTIORARI.  /2/  PRIOR TO TRIAL, PETITIONER HAD MOVED TO
QUASH THE INDICTMENT BECAUSE (1) NEGRO CITIZENS WERE INCLUDED ON THE
GRAND JURY LIST AND VENIRE IN ONLY TOKEN NUMBERS, AND (2) FEMALE
CITIZENS WERE SYSTEMATICALLY EXCLUDED FROM THE GRAND JURY LIST, VENIRE,
AND IMPANELED GRAND JURY.  /3/  PETITIONER THEREFORE ARGUED THAT THE
INDICTMENT AGAINST HIM WAS INVALID BECAUSE IT WAS RETURNED BY A GRAND
JURY IMPANELED FROM A VENIRE MADE UP CONTRARY TO THE REQUIREMENTS OF
THE EQUAL PROTECTION CLAUSE AND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  PETITIONER'S MOTIONS WERE DENIED. 

ACCORDING TO 1960 U.S. CENSUS FIGURES ADMITTED INTO EVIDENCE BELOW,
LAFAYETTE PARISH CONTAINED 44,986 PERSONS OVER 21 YEARS OF AGE AND
THEREFORE PRESUMPTIVELY ELIGIBLE FOR GRAND JURY SERVICE; /4/  OF THIS
TOTAL, 9,473 PERSONS (21.06%) WERE NEGRO.  /5/  AT THE HEARING ON
PETITIONER'S MOTIONS TO QUASH THE INDICTMENT, THE EVIDENCE REVEALED
THAT THE LAFAYETTE PARISH JURY COMMISSION CONSISTED OF FIVE MEMBERS,
ALL OF WHOM WERE WHITE, WHO HAD BEEN APPOINTED BY THE COURT.  THE
COMMISSION COMPILED A LIST OF NAMES FROM VARIOUS SOURCES (TELEPHONE
DIRECTORY, CITY DIRECTORY, VOTER REGISTRATION ROLLS, LISTS PREPARED BY
THE SCHOOL BOARD, AND BY THE JURY COMMISSIONERS THEMSELVES) AND SENT
QUESTIONNAIRES TO THE PERSONS ON THIS LIST TO DETERMINE THOSE QUALIFIED
FOR GRAND JURY SERVICE.  THE QUESTIONNAIRE INCLUDED A SPACE TO INDICATE
THE RACE OF THE RECIPIENT.  THROUGH THIS PROCESS, 7,374 QUESTIONNAIRES
WERE RETURNED, 1,015 OF WHICH (13.76%) WERE FROM NEGROES, /6/  AND THE
JURY COMMISSIONERS ATTACHED TO EACH QUESTIONNAIRE AN INFORMATION CARD
DESIGNATING, AMONG OTHER THINGS, THE RACE OF THE PERSON, AND A WHITE
SLIP INDICATING SIMPLY THE NAME AND ADDRESS OF THE PERSON.  THE
COMMISSIONERS THEN CULLED OUT ABOUT 5,000 QUESTIONNAIRES, OSTENSIBLY ON
THE GROUND THAT THESE PERSONS WERE NOT QUALIFIED FOR GRAND JURY SERVICE
OR WERE EXEMPTED UNDER STATE LAW.  THE REMAINING 2,000 SETS OF PAPERS
WERE PLACED ON A TABLE, AND THE PAPERS OF 400 PERSONS WERE SELECTED,
PURPORTEDLY AT RANDOM, AND PLACED IN A BOX FROM WHICH THE GRAND JURY
PANELS OF 20 FOR LAFAYETTE PARISH WERE DRAWN.  TWENTY-SEVEN OF THE
PERSONS THUS SELECTED WERE NEGRO (6.75%).  /7/ ON PETITIONER'S GRAND
JURY VENIRE, ONE OF THE 20 PERSONS DRAWN WAS NEGRO (5%), BUT NONE OF
THE 12 PERSONS ON THE GRAND JURY THAT INDICTED HIM, DRAWN FROM THIS 20,
WAS NEGRO. 

        I 

FOR OVER 90 YEARS, IT HAS BEEN ESTABLISHED THAT A CRIMINAL
CONVICTION OF A NEGRO CANNOT STAND UNDER THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT IF IT IS BASED ON AN INDICTMENT OF A GRAND
JURY FROM WHICH NEGROES WERE EXCLUDED BY REASON OF THEIR RACE. 
STRAUDER V. WEST VIRGINIA, 100 U.S. 303, (1880); NEAL V. DELAWARE 103
U.S. 370 (1881).  ALTHOUGH A DEFENDANT HAS NO RIGHT TO DEMAND THAT
MEMBERS OF HIS RACE BE INCLUDED ON THE GRAND JURY THAT INDICTS HIM,
VIRGINIA V. RIVES, 100 U.S. 313 (1880), HE IS ENTITLED TO REQUIRE THAT
THE STATE NOT DELIBERATELY AND SYSTEMATICALLY DENY TO MEMBERS OF HIS
RACE THE RIGHT TO PARTICIPATE AS JURORS IN THE ADMINISTRATION OF
JUSTICE.  /8/  EX PARTE VIRGINIA, 100 U.S. 339 (1880); GIBSON V.
MISSISSIPPI, 162 U.S. 565 (1896).  CF. HERNANDEZ V. TEXAS, 347 U.S. 475
(1954).  IT IS ONLY THE APPLICATION OF THESE SETTLED PRINCIPLES THAT IS
AT ISSUE HERE. 

THIS IS NOT A CASE WHERE IT IS CLAIMED THAT THERE HAVE BEEN NO
NEGROES CALLED FOR SERVICE WITHIN THE LAST 30 YEARS, PATTON V.
MISSISSIPPI, 332 U.S. 463, 464 (1947); ONLY ONE NEGRO CHOSEN WITHIN THE
LAST 40 YEARS, PIERRE V. LOUISIANA, 306 U.S. 354, 359 (1939); OR NO
NEGROES SELECTED "WITHIN THE MEMORY OF WITNESSES WHO HAD LIVED (IN THE
AREA) ALL THEIR LIVES," NORRIS V. ALABAMA, 294 U.S. 587, 591 (1935). 
RATHER, PETITIONER ARGUES THAT, IN HIS CASE, THERE HAS BEEN A
CONSISTENT PROCESS OF PROGRESSIVE AND DISPROPORTIONATE REDUCTION OF THE
NUMBER OF NEGROES ELIGIBLE TO SERVE ON THE GRAND JURY AT EACH STAGE OF
THE SELECTION PROCESS UNTIL ULTIMATELY AN ALL-WHITE GRAND JURY WAS
SELECTED TO INDICT HIM. 

IN LAFAYETTE PARISH, 21% OF THE POPULATION WAS NEGRO AND 21 OR OVER,
THEREFORE PRESUMPTIVELY ELIGIBLE FOR GRAND JURY SERVICE.  USE OF
QUESTIONNAIRES BY THE JURY COMMISSIONERS CREATED A POOL OF POSSIBLE
GRAND JURORS WHICH WAS 14% NEGRO, A REDUCTION OF ONE-THIRD OF POSSIBLE
BLACK GRAND JURORS.  THE COMMISSIONERS THEN TWICE CULLED THIS GROUP TO
CREATE A LIST OF 400 PROSPECTIVE JURORS, 7% OF WHOM WERE NEGRO-- A
FURTHER REDUCTION BY ONE-HALF.  THE PERCENTAGE DROPPED TO 5% ON
PETITIONER'S GRAND JURY VENIRE AND TO ZERO ON THE GRAND JURY THAT
ACTUALLY INDICTED HIM.  AGAINST THIS BACKGROUND, PETITIONER ARGUES THAT
THE SUBSTANTIAL DISPARITY BETWEEN THE PROPORTION OF BLACKS CHOSEN FOR
JURY DUTY AND THE PROPORTION OF BLACKS IN THE ELIGIBLE POPULATION
RAISES A STRONG INFERENCE THAT RACIAL DISCRIMINATION AND NOT CHANCE HAS
PRODUCED THIS RESULT BECAUSE ELEMENTARY PRINCIPLES OF PROBABILITY MAKE
IT EXTREMELY UNLIKELY THAT A RANDOM SELECTION PROCESS WOULD, AT EACH
STAGE, HAVE SO CONSISTENTLY REDUCED THE NUMBER OF NEGROES.  /9/ 

THIS COURT HAS NEVER ANNOUNCED MATHEMATICAL STANDARDS FOR THE
DEMONSTRATION OF "SYSTEMATIC" EXCLUSION OF BLACKS BUT HAS, RATHER,
EMPHASIZED THAT A FACTUAL INQUIRY IS NECESSARY IN EACH CASE THAT TAKES
INTO ACCOUNT ALL POSSIBLE EXPLANATORY FACTORS.  THE PROGRESSIVE
DECIMATION OF POTENTIAL NEGRO GRAND JURORS IS INDEED STRIKING HERE, BUT
WE DO NOT REST OUR CONCLUSION THAT PETITIONER HAS DEMONSTRATED A PRIMA
FACIE CASE OF INVIDIOUS RACIAL DISCRIMINATION ON STATISTICAL
IMPROBABILITY ALONE, FOR THE SELECTION PROCEDURES THEMSELVES WERE NOT
RACIALLY NEUTRAL.  THE RACIAL DESIGNATION ON BOTH THE QUESTIONNAIRE AND
THE INFORMATION CARD PROVIDED A CLEAR AND EASY OPPORTUNITY FOR RACIAL
DISCRIMINATION.  AT TWO CRUCIAL STEPS IN THE SELECTION PROCESS, WHEN
THE NUMBER OF RETURNED QUESTIONNAIRES WAS REDUCED TO 2,000 AND WHEN THE
FINAL SELECTION OF THE 400 NAMES WAS MADE, THESE RACIAL IDENTIFICATIONS
WERE VISIBLE ON THE FORMS USED BY THE JURY COMMISSIONERS, ALTHOUGH
THERE IS NO EVIDENCE THAT THE COMMISSIONERS CONSCIOUSLY SELECTED BY
RACE.  THE SITUATION HERE IS THUS SIMILAR TO AVERY V. GEORGIA, 345 U.S.
559 (1953), WHERE THE COURT SUSTAINED A CHALLENGE TO AN ARRAY OF PETIT
JURORS IN WHICH THE NAMES OF PROSPECTIVE JURORS HAD BEEN SELECTED FROM
SEGREGATED TAX LISTS.  JUROR CARDS WERE PREPARED FROM THESE LISTS,
YELLOW CARDS BEING USED FOR NEGRO CITIZENS AND WHITE CARDS FOR WHITES. 
CARDS WERE DRAWN BY A JUDGE, AND THERE WAS NO EVIDENCE OF SPECIFIC
DISCRIMINATION.  THE COURT HELD THAT SUCH EVIDENCE WAS UNNECESSARY,
HOWEVER, GIVEN THE FACT THAT NO NEGROES HAD APPEARED ON THE FINAL JURY:
"OBVIOUSLY THAT PRACTICE MAKES IT EASIER FOR THOSE TO DISCRIMINATE WHO
ARE OF A MIND TO DISCRIMINATE."  345 U.S.,AT 562.  AGAIN, IN WHITUS V.
GEORGIA, 385 U.S. 545 (1967), THE COURT REVERSED THE CONVICTION OF A
DEFENDANT WHO HAD BEEN TRIED BEFORE AN ALL-WHITE PETIT JURY.  JURORS
HAD BEEN SELECTED FROM A ONE-VOLUME TAX DIGEST DIVIDED INTO SEPARATE
THEIR NAMES AS REQUIRED BY GEORGIA LAW AT THE TIME.  THE JURY
COMMISSIONERS TESTIFIED THAT THEY WERE NOT AWARE OF THE "(C)" APPEARING
AFTER THE NAMES OF THE NEGRO TAXPAYERS; THAT THEY HAD NEVER INCLUDED OR
EXCLUDED ANYONE BECAUSE OF RACE; THAT THEY HAD PLACED ON THE JURY LIST
ONLY THOSE PERSONS WHOM THEY KNEW PERSONALLY; AND THAT THE JURY LIST
THEY COMPILED HAD HAD NO DESIGNATION OF RACE ON IT.  THE COUNTY FROM
WHICH JURY SELECTION WAS MADE WAS 42% NEGRO, AND 27% OF THE COUNTY'S
TAXPAYERS WERE NEGRO.  OF THE 33 PERSONS DRAWN FOR THE GRAND JURY
PANEL, THREE (9%) WERE NEGRO, WHILE ON THE 19-MEMBER GRAND JURY ONLY
ONE WAS NEGRO; ON THE 90-MAN VENIRE FROM WHICH THE PETIT JURY WAS
SELECTED, THERE WERE SEVEN NEGROES (8%) BUT NO NEGROES APPEARED ON THE
ACTUAL JURY THAT TRIED PETITIONER.  THE COURT HELD THAT THIS
COMBINATION OF FACTORS CONSTITUTED A PRIMA FACIE CASE OF
DISCRIMINATION, AND A SIMILAR CONCLUSION IS MANDATED IN THE PRESENT
CASE. 

ONCE A PRIMA FACIE CASE OF INVIDIOUS DISCRIMINATION IS ESTABLISHED,
THE BURDEN OF PROOF SHIFTS TO THE STATE TO REBUT THE PRESUMPTION OF
UNCONSTITUTIONAL ACTION BY SHOWING THAT PERMISSIBLE RACIALLY NEUTRAL
SELECTION CRITERIA AND PROCEDURES HAVE PRODUCED THE MONOCHROMATIC
RESULT.  TURNER V. FOUCHE, 396 U.S. 346, 361 (1970); EUBANKS V.
LOUISIANA, 356 U.S. 584, 587 (1958).  THE STATE HAS NOT CARRIED THIS
BURDEN IN THIS CASE; IT HAS NOT ADEQUATELY EXPLAINED THE ELIMINATION OF
NEGROES DURING THE PROCESS OF SELECTING THE GRAND JURY THAT INDICTED
PETITIONER.  AS IN WHITUS V. GEORGIA, SUPRA, THE CLERK OF THE COURT,
WHO WAS ALSO A MEMBER OF THE JURY COMMISSION, TESTIFIED THAT NO
CONSIDERATION WAS GIVEN TO RACE DURING THE SELECTION PROCEDURE.  APP.
34.  THE COURT HAS SQUARELY HELD, HOWEVER, THAT AFFIRMATIONS OF GOOD
FAITH IN MAKING INDIVIDUAL SELECTIONS ARE INSUFFICIENT TO DISPEL A
PRIMA FACIE CASE OF SYSTEMATIC EXCLUSION.  TURNER V. FOUCHE, SUPRA, AT
361; JONES V. GEORGIA, 389 U.S. 24, 25 (1967); SIMS V. GEORGIA, 389
U.S. 404, 407 (1967).  "THE RESULT BESPEAKS DISCRIMINATION, WHETHER OR
NOT IT WAS A CONSCIOUS DECISION ON THE PART OF ANY INDIVIDUAL JURY
COMMISSIONER."  HERNANDEZ V. TEXAS, 347 U.S.,AT 482.  SEE ALSO NORRIS
V. ALABAMA, 294 U.S.AT 598.  THE CLERK'S TESTIMONY THAT THE MAILING
LIST FOR QUESTIONNAIRES WAS COMPILED FROM NONRACIAL SOURCES IS NOT, IN
ITSELF, ADEQUATE TO MEET THE STATE'S BURDEN OF PROOF, FOR THE
OPPORTUNITY TO DISCRIMINATE WAS PRESENTED AT LATER STAGES IN THE
PROCESS.  THE COMMISSIONERS, IN ANY EVENT, HAD A DUTY "NOT TO PURSUE A
COURSE OF CONDUCT IN THE ADMINISTRATION OF THEIR OFFICE WHICH WOULD
OPERATE TO DISCRIMINATE IN THE SELECTION OF JURORS ON RACIAL GROUNDS." 
HILL V. TEXAS, 316 U.S. 400, 404 (1942).  SEE ALSO SMITH V. TEXAS, 311
U.S. 128, 130 (1940).  CF. CARTER V. JURY COMMISSION, 396 U.S. 320, 330
(1970).  WE CONCLUDE, THEREFORE, THAT "THE OPPORTUNITY FOR
DISCRIMINATION WAS PRESENT AND (THAT IT CANNOT BE SAID) ON THIS RECORD
THAT IT WAS NOT RESORTED TO BY THE COMMISSIONERS."  WHITUS V. GEORGIA,
SUPRA, AT 552. 

II 

PETITIONER ALSO CHALLENGES THE LOUISIANA STATUTORY EXEMPTION OF
WOMEN WHO DO NOT VOLUNTEER FOR GRAND JURY SERVICE.  ARTICLE 402, LA.
CODE CRIM. PROC. THIS CLAIM IS NOVEL IN THIS COURT AND, WHEN URGED BY A
MALE, FINDS NO SUPPORT IN OUR PAST CASES.  THE STRONG CONSTITUTIONAL
AND STATUTORY POLICY AGAINST RACIAL DISCRIMINATION HAS PERMITTED NEGRO
DEFENDANTS IN CRIMINAL CASES TO CHALLENGE THE SYSTEMATIC EXCLUSION OF
NEGROES FROM THE GRAND JURIES THAT INDICTED THEM.  ALSO, THOSE GROUPS
ARBITRARILY EXCLUDED FROM GRAND OR PETIT JURY SERVICE ARE THEMSELVES
AFFORDED AN APPROPRIATE REMEDY.  CF. CARTER V. JURY COMMISSION, SUPRA.
BUT THERE IS NOTHING IN PAST ADJUDICATIONS SUGGESTING THAT PETITIONER
HIMSELF HAS BEEN DENIED EQUAL PROTECTION BY THE ALLEGED EXLCUSION OF
WOMEN FROM GRAND JURY SERVICE.  ALTHOUGH THE DUE PROCESS CLAUSE
GUARANTEES PETITIONER A FAIR TRIAL, IT DOES NOT REQUIRE THE STATES TO
OBSERVE THE FIFTH AMENDMENT'S PROVISION FOR PRESENTMENT OR INDICTMENT
BY A GRAND JURY.  IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), THE
COURT HELD THAT BECAUSE TRIAL BY JURY IN CRIMINAL CASES UNDER THE SIXTH
AMENDMENT IS "FUNDAMENTAL TO THE AMERICAN SCHEME OF JUSTICE," ID., AT
149, SUCH A RIGHT WAS GUARANTEED TO DEFENDANTS IN STATE COURTS BY THE
FOURTEENTH AMENDMENT, BUT THE COURT HAS NEVER HELD THAT FEDERAL
CONCEPTS OF A "GRAND JURY," BINDING ON THE FEDERAL COURTS UNDER THE
FIFTH AMENDMENT, ARE OBLIGATORY FOR THE STATES.  HURTADO V. CALIFORNIA,
110 U.S. 516, 538 (1884). 

AGAINST THIS BACKGROUND AND BECAUSE PETITIONER'S CONVICTION HAS BEEN
SET ASIDE ON OTHER GROUNDS, WE FOLLOW OUR USUAL CUSTOM OF AVOIDING
DECISION OF CONSTITUTIONAL ISSUES UNNECESSARY TO THE DECISION OF THE
CASE BEFORE US.  BURTON V. UNITED STATES, 196 U.S. 283, 295 (1905). 
SEE ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 346-348
(1936) (BRANDEIS, J., CONCURRING).  THE STATE MAY OR MAY NOT RECHARGE
PETITIONER, A PROPERLY CONSTITUTED GRAND JURY MAY OR MAY NOT RETURN
ANOTHER INDICTMENT, AND PETITIONER MAY OR MAY NOT BE CONVICTED AGAIN. 
SEE BALLARD V. UNITED STATES, 329 U.S. 187, 196 (1946). 

              REVERSED. 

/1/  225 LA. 941, 233 SO.2D 891 (1970).  PETITIONER WAS INDICTED FOR
AGGRAVATED RAPE, AND A 12-MEMBER JURY UNANIMOUSLY RETURNED A VERDICT OF
"GUILTY WITHOUT CAPITAL PUNISHMENT." 

/2/  401 U.S. 936 (1971). 

/3/  PETITIONER DOES NOT HERE CHALLENGE THE COMPOSITION OF THE PETIT
JURY THAT CONVICTED HIM.  THE PRINCIPLES THAT APPLY TO THE SYSTEMATIC
EXCLUSION OF POTENTIAL JURORS ON THE GROUND OF RACE ARE ESSENTIALLY THE
SAME FOR GRAND JURIES AND FOR PETIT JURIES, HOWEVER.  PIERRE V.
LOUISIANA, 306 U.S. 354, 358 (1939).  SEE GENERALLY NEAL V. DELAWARE,
103 U.S. 370 (1881).     /4/  THE GENERAL QUALIFICATIONS FOR JURORS SET
BY LOUISIANA LAW ARE THAT A PERSON MUST BE A CITIZEN OF THE UNITED
STATES AND OF LOUISIANA WHO HAS RESIDED IN THE PARISH FOR AT LEAST A
YEAR PRIOR TO JURY SERVICE, BE AT LEAST 21 YEARS OLD, BE ABLE TO READ,
WRITE, AND SPEAK THE ENGLISH LANGUAGE, "(NOT BE UNDER INTERDICTION, OR
INCAPABLE OF SERVING AS A JUROR BECAUSE OF A MENTAL OR PHYSICAL
INFIRMITY," AND "(NOT BE UNDER INDICTMENT FOR A FELONY, NOR HAVE BEEN
CONVICTED OF A FELONY FOR WHICH HE HAS NOT BEEN PARDONED."  LA. CODE
CRIM. PROC., ART. 401 (1967). 

/5/  TESTIMONY AT THE HEARING ON THE MOTION TO QUASH THE INDICTMENT
ALSO REVEALED THAT THERE WERE 40,896 REGISTERED VOTERS IN THE PARISH. 
OF THIS TOTAL, 17,803 WERE WHITE MALES, AND 16,483 WERE WHITE FEMALES;
3,573 WERE NEGRO MALES, AND 3,037 WERE NEGRO FEMALES.  APP. 38. 

/6/  ONE HUNDRED AND EIGHTY-NINE QUESTIONNAIRES HAD NO RACIAL
DESIGNATION.  APP. 15. 

/7/  THERE ARE SOME INCONSISTENCIES IN THE RECORD AS TO THE TOTAL
NUMBER OF NEGROES IN THIS GROUP.  THE STATE INTRODUCED A CERTIFICATION
BY THE CLERK OF THE COURT STATING THAT THERE WERE 25 NEGROES AND FOUR
PERSONS WITH NO RACE SHOWN.  APP. 15.  A COUNT OF THE ACTUAL LIST OF
JURORS, HOWEVER, SHOWS 27 NEGROES AND FIVE PERSONS WITH NO RACE SHOWN. 
APP. 16-24. 

/8/  SECTION 4 OF THE 1875 CIVIL RIGHTS ACT, 18 STAT. 336, NOW
CODIFIED AS 18 U.S.C. 243, AFFIRMS AND REINFORCES THIS CONSTITUTIONAL
RIGHT:  "NO CITIZEN POSSESSING ALL OTHER QUALIFICATIONS WHICH ARE OR
MAY BE PRESCRIBED BY LAW SHALL BE DISQUALIFIED FOR SERVICE AS GRAND OR
PETIT JUROR IN ANY COURT OF THE UNITED STATES, OR OF ANY STATE ON
ACCOUNT OF RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE; AND
WHOEVER, BEING AN OFFICER OR OTHER PERSON CHARGED WITH ANY DUTY IN THE
SELECTION OR SUMMONING OF JURORS, EXCLUDES OR FAILS TO SUMMON ANY
CITIZEN FOR SUCH CAUSE, SHALL BE FINED NOT MORE THAN $5,000." 

/9/  WE TAKE NOTE, AS WE DID IN WHITUS V. GEORGIA, 385 U.S. 545, 552
N. 2 (1967), OF PETITIONER'S DEMONSTRATION THAT UNDER ONE STATISTICAL
TECHNIQUE OF CALCULATING PROBABILITY, THE CHANCES THAT 27 NEGROES WOULD
HAVE BEEN SELECTED AT RANDOM FOR THE 400-MEMBER FINAL JURY LIST, WHEN
1,015 OUT OF THE 7,374 QUESTIONNAIRES RETURNED WERE FROM NEGROES, ARE
ONE IN 20,000.  BRIEF FOR PETITIONER 18 N. 18. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN PART I OF THE COURT'S OPINION, I AM CONVINCED WE SHOULD
ALSO REACH THE CONSTITUTIONALITY OF LOUISIANA'S EXCLUSION OF WOMEN FROM
JURY SERVICE.  THE ISSUE IS SQUARELY PRESENTED, IT HAS BEEN THOROUGHLY
BRIEFED AND ARGUED, AND IT IS OF RECURRING IMPORTANCE.  THE COURT
PURPORTS TO FOLLOW "OUR USUAL CUSTOM" OF AVOIDING UNNECESSARY
CONSTITUTIONAL ISSUES.  BUT THAT CANNOT BE THE SOLE RATIONALE, FOR BOTH
QUESITONS ARE OF CONSTITUTIONAL DIMENSION.  WE COULD JUST AS WELL SAY
THAT DECIDING THE CONSTITUTIONALITY OF EXCLUDING WOMEN FROM JURIES
RENDERS IT UNNECESSARY TO REACH THE QUESTION OF RACIAL EXCLUSION. 

IT CAN BE ARGUED THAT THE RACIAL EXCLUSION ADMITS OF THE "EASIER"
ANALYSIS.  BUT THIS COURT DOES NOT SIT TO DECIDE ONLY "EASY"
QUESTIONS.  AND EVEN WHEN FACED WITH "HARD" CONSTITUTIONAL QUESTIONS,
WE HAVE OFTEN DECIDED CASES ON ALTERNATE GROUNDS WHERE A DECISION ON
ONLY ONE WOULD HAVE BEEN DISPOSITIVE.  SEE, E.G., DUNN V. BLUMSTEIN,
ANTE, P. 330. 

PETITIONER COMPLAINS OF THE EXCLUSION OF BLACKS AND WOMEN FROM THE
GRAND JURY WHICH INDICTED HIM.  CONCEIVABLY, HE COULD HAVE ALSO
COMPLAINED OF THE EXCLUSION OF SEVERAL OTHER MINORITY GROUPS.  WOULD HE
THEN BE RELEGATED TO SUFFER REPETITIVE RE-INDICTMENT AND RE-CONVICTION
WHILE THIS COURT CONSIDERED THE EXCLUSION OF EACH GROUP IN A SEPARATE
LAWSUIT? 

I BELIEVE THE TIME HAS COME TO REJECT THE DICTUM IN STRAUDER V. WEST
VIRGINIA, 100 U.S. 303, 310, THAT A STATE "MAY CONFINE" JURY SERVICES
"TO MALES."  I WOULD HERE REACH THE QUESTION WE RESERVED IN HOYT V.
FLORIDA, 368 U.S. 57, 60, AND HOLD THAT ART. 402, LA. CODE CRIM. PROC.,
/1/  AS APPLIED TO EXCLUDE WOMEN AS A CLASS FROM LAFAYETTE PARISH JURY
ROLLS, VIOLATED PETITIONER ALEXANDER'S CONSTITUTIONAL RIGHT TO AN
IMPARTIAL JURY DRAWN FROM A GROUP REPRESENTATIVE OF A CROSS-SECTION OF
THE COMMUNITY.  /2/ 

IT IS IRRELEVANT TO OUR ANALYSIS THAT ALEXANDER ATTACKS THE
COMPOSITION OF THE GRAND JURY THAT INDICTED HIM, NOT THE PETIT JURY
WHICH CONVICTED HIM, FOR IT IS CLEAR THAT A STATE WHICH HAS A GRAND
JURY PROCEDURE MUST ADMINISTER THAT SYSTEM CONSONANTLY WITH THE FEDERAL
CONSTITUTION.  THE COURT ASSERTS, HOWEVER, THAT "FEDERAL CONCEPTS" OF A
GRAND JURY DO NOT OBLIGATE THE STATES, AND CITES HURTADO V. CALIFORNIA,
110 U.S. 516, 538.  ANTE, AT 633.  BUT HURTADO SUPPORTS NO SUCH
PROPOSITION.  THAT CASE MERELY HELD THAT THE FIFTH AMENDMENT GRAND JURY
REQUIREMENT WAS NOT BINDING ON THE STATES.  IT SAID NOTHING AS TO THE
CONSTITUTIONAL REQUIREMENTS WHICH OBTAIN ONCE A STATE CHOOSES TO
PROVIDE A GRAND JURY, AND WE ARE DIRECTED TO NO OTHER CASE WHICH DOES
SPEAK TO THE SUBJECT.  BUT THIS COURT HAS SAID TIME AND AGAIN,
REGARDLESS OF A STATE'S FREEDOM TO REJECT THE FEDERAL GRAND JURY, AND
TO REJECT EVEN THE PETIT JURY FOR OFFENSES PUNISHABLE BY LESS THAN SIX
MONTHS' IMPRISONMENT, BALDWIN V. NEW YORK, 399 U.S. 66, "ONCE THE STATE
CHOOSES TO PROVIDE GRAND AND PETIT JURIES, WHETHER OR NOT
CONSTITUTIONALLY REQUIRED TO DO SO, IT MUST HEW TO FEDERAL
CONSTITUTIONAL CRITERIA.  . . . "  CARTER V. JURY COMMISSION, 396 U.S.
320, 330.  /3/ 

IT IS FURTHERMORE CLEAR THAT JUST SUCH A "FEDERAL CONSTITUTIONAL
CRITERION)" IS THAT THE GRAND JURY, JUST AS THE PETIT JURY, MUST BE
DRAWN FROM A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY.  THE COURT
WAS SPEAKING OF BOTH GRAND AND PETIT JURIES IN CARTER V. JURY
COMMISSION, SUPRA, WHEN, QUOTING SMITH V. TEXAS, 311 U.S. 128, 130, IT
DEFINED THE JURY AS "A BODY TRULY REPRESENTATIVE OF THE COMMUNITY." 
396 U.S.,AT 330.  THE COURT WAS SPEAKING OF GRAND AND PETIT JURIES WHEN
IT SAID IN BROWN V. ALLEN, 344 U.S. 443, 474:  "OUR DUTY TO PROTECT THE
FEDERAL CONSTITUTIONAL RIGHTS OF ALL DOES NOT MEAN WE MUST OR SHOULD
IMPOSE ON STATES OUR CONCEPTION OF THE PROPER SOURCE OF JURY LISTS, SO
LONG AS THE SOURCE REASONABLY REFLECTS A CROSS-SECTION OF THE
POPULATION SUITABLE IN CHARACTER AND INTELLIGENCE FOR THAT CIVIC
DUTY."  AS MR. JUSTICE BLACK SAID, SPEAKING FOR THE COURT IN PIERRE V.
LOUISIANA, 306 U.S. 354, 358:  "INDICTMENT BY GRAND JURY AND TRIAL BY
JURY CEASE TO HARMONIZE WITH OUR TRADITIONAL CONCEPTS OF JUSTICE AT THE
VERY MOMENT PARTICULAR GROUPS, CLASSES OR RACES . . . ARE EXCLUDED AS
SUCH FROM JURY SERVICE."  (FOOTNOTE OMITTED.) 

THE REQUIREMENT THAT A JURY REFLECT A CROSS-SECTION OF THE COMMUNITY
OCCURS THROUGHOUT OUR JURISPRUDENCE:  "THE AMERICAN TRADITION OF TRIAL
BY JURY, CONSIDERED IN CONNECTION WITH EITHER CRIMINAL OR CIVIL
PROCEEDINGS, NECESSARILY CONTEMPLATES AN IMPARTIAL JURY DRAWN FROM A
CROSS-SECTION OF THE COMMUNITY.  SMITH V. TEXAS, 311 U.S. 128, 130;
GLASSER V. UNITED STATES, 315 U.S. 60, 85."  THIEL V. SOUTHERN PACIFIC
CO., 328 U.S. 217, 220.  ACCORD, WILLIAMS V. FLORIDA, 399 U.S. 78, 100;
WITHERSPOON V. ILLINOIS, 391 U.S. 510, 520; BALLARD V. UNITED STATES,
329 U.S. 187, 192-193; LABAT V. BENNETT, 365 F.2D 698, 722-724.  /4/ 

THIS IS PRECISELY THE CONSTITUTIONAL INFIRMITY OF THE LOUISIANA
STATUTE.  FOR A JURY LIST FROM WHICH WOMEN HAVE BEEN SYSTEMATICALLY
EXCLUDED IS NOT REPRESENTATIVE OF THE COMMUNITY. 

     "IT IS SAID, HOWEVER, THAT AN ALL MALE PANEL DRAWN FROM THE

  VARIOUS GROUPS WITHIN A COMMUNITY WILL BE AS TRULY REPRESENTATIVE

  AS IF WOMEN WERE INCLUDED.  THE THOUGHT IS THAT THE FACTORS WHICH

  TEND TO INFLUENCE THE ACTION OF WOMEN ARE THE SAME AS THOSE WHICH

  INFLUENCE THE ACTION OF MEN-- PERSONALITY, BACKGROUND, ECONOMIC

  STATUS-- AND NOT SEX.  YET IT IS NOT ENOUGH TO SAY THAT WOMEN

  WHEN SITTING AS JURORS NEITHER ACT NOR TEND TO ACT AS A CLASS. 

  MEN LIKEWISE DO NOT ACT AS A CLASS.  BUT, IF THE SHOE WERE ON THE

  OTHER FOOT, WHO WOULD CLAIM THAT A JURY WAS TRULY REPRESENTATIVE

  OF THE COMMUNITY IF ALL MEN WERE INTENTIONALLY AND SYSTEMATICALLY

  EXCLUDED FROM THE PANEL?  THE TRUTH IS THAT THE TWO SEXES ARE NOT

  FUNGIBLE; A COMMUNITY MADE UP EXCLUSIVELY OF ONE IS DIFFERENT

  FROM A COMMUNITY COMPOSED OF BOTH; THE SUBTLE INTERPLAY OF

  INFLUENCE ONE ON THE OTHER IS AMONG THE IMPONDERABLES.  TO

  INSULATE THE COURTROOM FROM EITHER MAY NOT IN A GIVEN CASE MAKE

AN IOTA OF DIFFERENCE.  YET A FLAVOR, A DISTINCT QUALITY IS LOST

  IF EITHER SEX IS EXCLUDED.  THE EXCLUSION OF ONE MAY INDEED MAKE

  THE JURY LESS REPRESENTATIVE OF THE COMMUNITY THAN WOULD BE TRUE

  IF AN ECONOMIC OR RACIAL GROUP WERE EXCLUDED."  BALLARD V. UNITED

  STATES, SUPRA, AT 193-194.  (FOOTNOTES OMITTED.) 

THE RECORD BEFORE US, MOREOVER, INDISPUTABLY REVEALS THAT SUCH A
SYSTEMATIC EXCLUSION OPERATED WITH RESPECT TO THE LAFAYETTE PARISH JURY
LISTS.  THERE WERE NO WOMEN ON THE GRAND JURY THAT INDICTED PETITIONER,
AND THERE WERE NO WOMEN ON THE VENIRE FROM WHICH THE JURY WAS CHOSEN. 
WHILE THE VENIRE WAS SELECTED FROM RETURNS TO QUESTIONNAIRES SENT TO
PARISH RESIDENTS, NOT A SINGLE ONE OF THE SOME 11,000 QUESTIONNAIRES
WAS EVEN SENT TO A WOMAN.  THIS WAS DONE DELIBERATELY.  /5/ 

THE STATE RELIES ON THE FACT THAT THE AUTOMATIC EXEMPTION IT GRANTS
TO WOMEN IS THE SAME AS THE ONE UPHELD IN HOYT V. FLORIDA, 368 U.S.
57.  IN HOYT, HOWEVER, THERE WERE WOMEN ON THE JURY ROLLS, AND THE JURY
COMMISSIONERS HAD MADE GOOD-FAITH EFFORTS TO INCLUDE WOMEN ON THE JURY
LISTS DESPITE THE FACT THAT THEY HAD AN AUTOMATIC EXEMPTION UNLESS THEY
VOLUNTEERED FOR SERVICE.  ID., AT 69 (WARREN, C.J., CONCURRING).  HERE,
ON THE OTHER HAND, ONLY THE FEEBLEST EFFORTS WERE MADE TO INTEREST
WOMEN IN SERVICE, /6/  AND THERE WAS TESTIMONY THAT ONLY A SINGLE WOMAN
HAD FILLED OUT A JURY SERVICE QUESTIONNAIRE.  /7/  THIS, OUT OF A
PARISH POPULATION OF 45,000 ADULTS, 52% OF WHOM WERE FEMALE. 

THE ABSOLUTE EXEMPTION PROVIDED BY LOUISIANA, AND NO OTHER STATE,
/8/  BETRAYS A VIEW OF A WOMAN'S ROLE WHICH CANNOT WITHSTAND SCRUTINY
UNDER MODERN STANDARDS.  WE ONCE UPHELD THE CONSTITUTIONALITY OF A
STATE LAW DENYING TO WOMEN THE RIGHT TO PRACTICE LAW, SOLELY ON GROUNDS
OF SEX.  BRADWELL V. STATE, 16 WALL.  130.  THE RATIONALE UNDERLYING
ART. 402 OF THE LOUISIANA CODE IS THE SAME AS THAT WHICH WAS
ARTICULATED BY JUSTICE BRADLEY IN BARDWELL: 

"MAN IS, OR SHOULD BE, WOMAN'S PROTECTOR AND DEFENDER.  THE NATURAL
AND PROPER TIMIDITY AND DELICACY WHICH BELONGS TO THE FEMALE SEX
EVIDENTLY UNFITS IT FOR MANY OF THE OCCUPATIONS OF CIVIL LIFE.  THE
CONSTITUTION OF THE FAMILY ORGANIZATION, WHICH IS FOUNDED IN THE DIVINE
ORDINANCE, AS WELL AS IN THE NATURE OF THINGS, INDICATES THE DOMESTIC
SPHERE AS THAT WHICH PROPERLY BELONGS TO THE DOMAIN AND FUNCTIONS OF
WOMANHOOD.  THE HARMONY, NOT TO SAY IDENTITY, OF INTERESTS AND VIEWS
WHICH BELONG, OR SHOULD BELONG, TO THE FAMILY INSTITUTION IS REPUGNANT
TO THE IDEA OF A WOMAN ADOPTING A DISTINCT AND INDEPENDENT CAREER FROM
THAT OF HER HUSBAND.  . . . 

     " . . . THE PARAMOUNT DESTINY AND MISSION OF WOMAN ARE TO

  FULFIL THE NOBLE AND BENIGN OFFICES OF WIFE AND MOTHER.  THIS IS

 THE LAW OF THE CREATOR.  AND THE RULES OF CIVIL SOCIETY MUST BE

  ADAPTED TO THE GENERAL CONSTITUTION OF THINGS, AND CANNOT BE

  BASED UPON EXCEPTIONAL CASES."  ID., AT 141-142. 

CLASSIFICATIONS BASED ON SEX ARE NO LONGER INSULATED FROM JUDICIAL
SCRUTINY BY A LEGISLATIVE JUDGMENT THAT "WOMAN'S PLACE IS IN THE HOME,"
OR THAT WOMAN IS BY HER "NATURE" ILL-SUITED FOR A PARTICULAR TASK. 
SEE, E.G., REED V. REED, 404 U.S. 71.  BUT SUCH A JUDGMENT IS PRECISELY
THAT WHICH UNDERPINS THE ABSOLUTE EXEMPTION FROM JURY SERVICE AT
ISSUE.  /9/  INSOFAR AS HOYT, SUPRA, EMBODIES THIS DISCREDITED
STEREOTYPE, IT SHOULD BE FIRMLY DISAPPROVED.  /10/  SEE JOHNSTON &
KNAPP, SEX DISCRIMINATION BY LAW:  A STUDY IN JUDICIAL PERSPECTIVE, 46
N.Y.U.L.REV.  675, 708-721 (1971). 

LOUISIANA SAYS, HOWEVER, THAT WOMEN ARE NOT TOTALLY EXCLUDED FROM
SERVICE; THEY MAY VOLUNTEER.  THE STATE ASSERTS IT IS IMPRACTICAL TO
REQUIRE WOMEN AFFIRMATIVELY TO CLAIM THE STATUTORY EXEMPTION BECAUSE OF
THE LARGE NUMBERS WHO WOULD DO SO.  THIS ARGUMENT MISSES THE POINT. 
NEITHER MAN NOR WOMAN CAN BE EXPECTED TO VOLUNTEER FOR JURY SERVICE. 
HOYT, SUPRA, AT 64-65.  SEE L. KANOWITZ, WOMAN AND THE LAW 30 (1969). 
THUS, THE AUTOMATIC EXEMPTION, COUPLED WITH THE FAILURE EVEN TO APPRISE
PARISH WOMEN OF THEIR RIGHT TO VOLUNTEER, RESULTS IN AS TOTAL AN
EXCLUSION AS WOULD OBTAIN IF WOMEN WERE NOT PERMITTED TO SERVE AT ALL. 

SOME VIOLATIONS OF DUE PROCESS OF LAW MAY BE EXCUSED IN THE CONTEXT
OF A CRIMINAL TRIAL, IF THE ERROR CANNOT BE SHOWN TO HAVE HAD AN EFFECT
ON THE OUTCOME.  SEE, E.G., GIGLIO V. UNITED STATES, ANTE, P. 150;
NAPUE V. ILLINOIS, 360 U.S. 264, 272.  BUT THE RIGHT TO A
REPRESENTATIVE JURY IS ONE WHICH WOULD BE TRIVIALIZED WERE A SIMILAR
REQUIREMENT IMPOSED: 

"WE CAN NEVER MEASURE ACCURATELY THE PREJUDICE THAT RESULTS FROM THE
EXCLUSION OF CERTAIN TYPES OF QUALIFIED PEOPLE FROM A JURY PANEL.  SUCH
PREJUDICE IS SO SUBTLE, SO INTANGIBLE, THAT IT ESCAPES THE ORDINARY
METHODS OF PROOF.  IT MAY BE ABSENT IN ONE CASE AND PRESENT IN ANOTHER;
IT MAY GRADUALLY AND SILENTLY ERODE THE JURY SYSTEM BEFORE IT BECOMES
EVIDENT.  BUT IT IS NO LESS REAL OR MEANINGFUL FOR OUR PURPOSES.  IF
THE CONSTITUTIONAL RIGHT TO A JURY IMPARTIALLY DRAWN FROM A CROSS
RIGHT EVEN THOUGH THE EFFECT OF THE VIOLATION HAS NOT YET PUT IN A
TANGIBLE APPEARANCE.  OTHERWISE THAT RIGHT MAY BE IRRETRIEVABLY LOST IN
A WELTER OF EVIDENTIARY RULES."  FAY V. NEW YORK, 332 U.S. 261, 300
(MURPHY, J., DISSENTING). 

A STATUTORY PROCEDURE WHICH HAS THE EFFECT OF EXCLUDING ALL WOMEN
DOES NOT PRODUCE A REPRESENTATIVE JURY, AND IS THEREFORE REPUGNANT TO
OUR CONSTITUTIONAL SCHEME.  CF. WHITE V. CROOK, 251 F.SUPP.  401, 408
409 (MD ALA. 1966).  FOR THESE REASONS, I WOULD HOLD ART. 402, LA. CODE
CRIM. PROC., TO BE UNCONSTITUTIONAL.     /1/  ARTICLE 402, LA. CODE
CRIM. PROC.:  "A WOMAN SHALL NOT BE SELECTED FOR JURY SERVICE UNLESS
SHE HAS PREVIOUSLY FILED WITH THE CLERK OF COURT OF THE PARISH IN WHICH
SHE RESIDES A WRITTEN DECLARATION OF HER DESIRE TO BE SUBJECT TO JURY
SERVICE." 

/2/  THE FACT THAT ALEXANDER IS A MALE CHALLENGING THE EXCLUSION OF
FEMALES FROM THE JURY ROLLS IS NOT OF SIGNIFICANCE, FOR HIS CLAIM
RESTS, NOT ON EQUAL PROTECTION PRINCIPLES, BUT ON THE RIGHT OF ANY
DEFENDANT TO AN IMPARTIAL JURY, NO MATTER WHAT HIS SEX OR RACE. 

/3/WHILE CARTER AROSE UNDER THE EQUAL PROTECTION CLAUSE, AND
CONCERNED THE RIGHT OF PROSPECTIVE JURORS EXCLUDED FROM THE VENIRE
SOLELY BY REASON OF THEIR RACE, THE ANALYSIS IS THE SAME IN THE INSTANT
CASE, WHERE THE QUESTION IS THE ACCUSED'S RIGHT TO AN IMPARTIAL JURY. 
TURNER V. LOUISIANA, 379 U.S. 466. 

/4/  THE CASES MOST PRECISELY ARTICULATING THE REQUIREMENT THAT A
JURY REFLECT A CROSS SECTION OF THE COMMUNITY AROSE UNDER OUR
SUPERVISORY POWER OVER THE FEDERAL COURTS.  SEE, E.G., BALLARD V.
UNITED STATES, 329 U.S. 187; THIEL V. SOUTHERN PACIFIC CO., 328 U.S.
217; GLASSER V. UNITED STATES, 315 U.S. 60.  THE DETAIL WITH WHICH
THESE CASES WERE WRITTEN, HOWEVER, SIMPLY REFLECTS OUR OBLIGATION TO
PROVIDE GUIDELINES FOR THE FEDERAL SYSTEM.  IT IS CONSISTENT WITH OUR
PRINCIPLE OF FEDERALISM THAT THE STATES BE PERMITTED GREATER LATITUDE
IN FASHIONING THEIR JURY-SELECTION PROCEDURES, BUT TO AVOID
CONSTITUTIONAL INFIRMITY THE RESULT MUST BE DESIGNED TO PRODUCE A
REPRESENTATIVE CROSS SECTION OF THE COMMUNITY.  BROWN V. ALLEN, 344
U.S. 443, 474; CARTER V. JURY COMMISSION, 396 U.S. 320, 322, 333. 

/5/  MR. LEBLANC, CLERK OF THE COURT IN LAFAYETTE PARISH, AND A
MEMBER OF THE PARISH JURY COMMISSION, TESTIFIED AS TO THE PROCESS BY
WHICH THE VENIRE WAS CHOSEN AT THE HEARING ON THE MOTION TO QUASH
ALEXANDER'S INDICTMENT: 

"A.  THE SLIPS OR LIST THAT ARE PUT IN THE GENERAL VENIRE BOX ARE
MADE FROM QUESTIONNAIRES THAT I MAILED OUT. 

        .          .          .          . 

"Q.  NOW, WHO IS THE QUESTIONNAIRE SENT TO?  HOW IS THAT
DETERMINED? 

"A.  TO THE DIFFERENT PEOPLE IN THE PARISH BY THE REGISTRAR OF
VOTER'S LIST AND THE TELEPHONE BOOK, CITY DIRECTORY, DIFFERENT LISTS
THAT ARE SUBMITTED BY SCHOOL BOARD OR ANY LIST THAT WE CAN FIND THAT WE
THINK WE GOT ADDRESS (SIC) FOR THE MIXED RACE ONE WAY OR THE OTHER. 

        .          .          .          . 

"Q.  WAS THE QUESTIONNAIRE MAILED TO ANY WOMEN AT ALL? 

"A.  WE HAVE RECEIVED SOME THAT WAS FILLED IN BY SOME LADIES.  I
THINK ONE. 

"Q.  DID YOU MAIL ANY TO ANY WOMEN INTENTIONALLY OR DID YOU
INTENTIONALLY EXCLUDE WOMEN WHEN YOU MAILED THEM? 

"A.  WE DIDN'T MAIL ANY TO THE WOMEN."  APP. 35, 53. 

/6/  THE ONLY EVIDENCE IN THE RECORD THAT ANY EFFORT WHATSOEVER WAS
EXPENDED TO ENCOURAGE WOMEN TO VOLUNTEER FOR JURY SERVICE WAS A
STATEMENT BY MR. LEBLANC THAT HE HAD "DISCUSSED THAT WITH THE ASSISTANT
DIRECTOR ATTORNEY," AND THAT HE HAD "SENT HER AT (SIC) DIFFERENT
WOMEN'S CLUBS TO EXPLAIN TO THE WOMEN THE POSSIBILITY OF BEING ON THE
JURY."  APP. 54.  HE ALSO AVERRED THAT "WE'RE WORKING ON THE WOMEN TO
SUBMIT NAMES AND INTENTION TO SERVE."  IBID. 

AS INDICATED IN N. 5, SUPRA, HOWEVER, THESE EFFORTS PRODUCED BUT A
SINGLE QUESTIONNAIRE FROM A WOMAN.  THE 11,000 QUESTIONNAIRES SENT TO
MEN, ON THE OTHER HAND, RESULTED IN OVER 7,000 RESPONSES.  APP. 15. 

/7/  TESTIMONY OF MR. LEBLANC.  SEE NN. 5-6, SUPRA. 

/8/  NO STATE NOW PROHIBITS WOMEN FROM SERVICE ON JURIES ALTOGETHER,
ALABAMA'S PROHIBITION HAVING BEEN FOUND UNCONSTITUTIONAL IN WHITE V.
CROOK, 251 F.SUPP.  401 (MD ALA. 1966).  MOST STATES AFFORD EQUAL
TREATMENT TO MEN AND WOMEN, ALTHOUGH EXEMPTIONS ARE FREQUENTLY PROVIDED
FOR WOMEN WHO ARE PREGNANT OR WHO HAVE CHILDREN UNDER 18 AT HOME.  FIVE
STATES NOW ALLOW WOMEN AN ABSOLUTE EXEMPTION, BASED SOLELY ON THEIR
SEX, BUT THEY MUST AFFIRMATIVELY REQUEST IT.  GA. CODE ANN. SEC. 59-124
(1965); MO. CONST., ART. I. SEC. 22(B); N.Y. JUDICIARY LAW SEC. 507(7)
(1968); R.I. GEN. LAWS ANN. SEC. 9-9-11 (1970); TENN. CODE ANN. SEC. 22
101, SEC. 22-108 (1955). 

/9/  PERHAPS THE PUREST ARTICULATION OF THE OBJECTION TO WOMAN JURY
SERVICE IS THAT OF JUDGE TURNER, DISSENTING IN ROSENCRANTZ V,
TERRITORY, 2 WASH.TER.  267, 5 P. 305 (1884), A CASE IN WHICH A FEMALE
DEFENDANT CHALLENGED THE GRAND JURY WHICH INDICTED HER ON THE GROUND
THAT IT INCLUDED MARRIED WOMEN LIVING WITH THEIR HUSBANDS.  THE
CHALLENGE WAS REJECTED OVER JUDGE TURNER'S DISSENT: 

"IT IS SAID THAT THE RIGHTS OF THE WEAKER SEX, IF I MAY NOW CALL
THEM SO, ARE MORE REGARDED THAN IN THE DAYS OF BLACKSTONE; AND THAT THE
THEORY OF THAT DAY, THAT WOMEN WERE UNFITTED BY PHYSICAL CONSTITUTION
AND MENTAL CHARACTERISTICS TO ASSUME AND PERFORM THE CIVIL AND
POLITICAL DUTIES AND OBLIGATIONS OF CITIZENSHIP, HAS BEEN EXPLODED BY
THE ADVANCED IDEAS OF THE NINETEENTH CENTURY.  THIS MAY BE TRUE.  NO
MAN HONORS THE SEX MORE THAN I. NONE HAS WITNESSED MORE CHEERFULLY THE
IMPROVEMENT IN THE LAWS OF THE STATES, AND PARTICULARLY IN THE LAWS OT
THIS TERRITORY, WHEREBY MANY OF THE DISABILITIES OF THAT DAY ARE
REMOVED FROM THEM, AND THEIR JUST PERSONAL AND PROPERTY RIGHTS PUT UPON
AN EQUAL FOOTING WITH THOSE OF MEN.  I CANNOT SAY, HOWEVER, THAT I WISH
TO SEE THEM PERFORM THE DUTIES OF JURORS.  THE LIABILITY TO PERFORM
JURY DUTY IS AN OBLIGATION, NOT A RIGHT.  IN THE CASE OF WOMAN, IT IS
NOT NECESSARY THAT SHE SHOULD ACCEPT THE OBLIGATION TO SECURE OR
MAINTAIN HER RIGHTS.  IF IT WERE, I SHOULD STIFLE ALL EXPRESSION OF THE
REPUGNANCE THAT I FEEL AT SEEING HER INTRODUCED INTO ASSOCIATIONS AND
EXPOSED TO INFLUENCES WHICH, HOWEVER OTHERS REGARD IT, MUST, IN MY
OPINION, SHOCK AND BLUNT THOSE FINE SENSIBILITIES, THE POSSESSION OF
WHICH IS HER CHIEFEST CHARM, AND THE PROTECTION OF WHICH, UNDER THE
RELIGION AND LAWS OF ALL COUNTRIES, CIVILIZED OR SEMI-CIVILIZED, IS HER
MOST SACRED RIGHT. 

"IF ONE WOMAN IS COMPETENT AS A JUROR, ALL WOMEN HAVING THE SAME
QUALIFICATIONS ARE COMPETENT.  IF WOMEN MAY TRY ONE CASE, THEY MAY TRY
ALL CASES.  IT IS UNNECESSARY TO SAY MORE, TO SUGGEST THE SHOCKING
POSSIBILITIES TO WHICH OUR WIVES, MOTHERS, SISTERS, AND DAUGHTERS MAY
BE EXPOSED . . . . THESE OBSERVATIONS, HOWEVER, ARE NOT PERTINENT
HERE.  THE QUESTION IS, WHAT IS THE LAW? 

"I SAY, THAT THE LAWS NOW CONCERNING THE IMPORTANT INCIDENTS OF A
JURY TRIAL ARE, BY EXPRESS CONSTITUTIONAL PROVISION, WHAT THEY WERE AT
THE COMMON LAW, AND THAT UNDER THAT LAW A JURY WAS NO JURY UNLESS IT
WAS COMPOSED OF MEN."  ID., AT 278-279, 5 P., AT 309-310. 

/10/  IN FAY V. NEW YORK, 332 U.S. 261, THERE IS ALSO A DICTUM
APPROVING THE CONSTITUTIONALITY OF EXCLUDING WOMEN FROM JURY SERVICE. 
RELYING SOLELY ON THE PROPOSITION THAT:  "UNTIL RECENTLY, AND FOR
NEARLY A HALF-CENTURY AFTER THE FOURTEENTH AMENDMENT WAS ADOPTED, IT
WAS UNIVERSAL PRACTICE IN THE UNITED STATES TO ALLOW ONLY MEN TO SIT ON
JURIES,"  THE COURT OPINED THAT "WOMAN JURY SERVICE HAS NOT SO BECOME A
PART OF THE TEXTUAL OR CUSTOMARY LAW OF THE LAND THAT ONE CONVICTED OF
CRIME MUST BE SET FREE BY THIS COURT IF HIS STATE HAS LAGGED BEHIND
WHAT WE PERSONALLY MAY REGARD AS THE MOST DESIRABLE PRACTICE IN
RECOGNIZING THE RIGHTS AND OBLIGATIONS OF WOMANHOOD."  ID., AT 289
290.  THIS DICTUM WAS TOTALLY IRRELEVANT TO THE HOLDING IN FAY,
APPROVING NEW YORK'S SPECIAL "BLUE-RIBBON" JURY SYSTEM FOR THE COURT
STATED FLATLY THAT:  "THE EVIDENCE DOES NOT SHOW THAT WOMEN ARE
EXCLUDED FROM THE SPECIAL JURY."  ID., AT 278.  INDEED, THERE WERE
WOMEN ON THE VERY JURY WHICH WAS AT ISSUE IN THE CASE.  IBID. 

THE "NOSE-COUNTING" APPROACH WHICH LED TO THE FAY COURT'S REFUSAL TO
RECOGNIZE WOMAN JURY SERVICE AS "PART OF THE TEXTUAL OR CUSTOMARY LAW
OF THE LAND" HAS, OF COURSE, BEEN THOROUGHLY UNDERMINED BY SUBSEQUENT
EVENTS.  SEE N. 8, SUPRA.  IT HAS BEEN SUGGESTED THAT THE DECISION
ITSELF WAS OVERRULED BY DUNCAN V. LOUISIANA, 391 U.S. 145.  ID., AT 185
N. 25, AND TEXT FOLLOWING (HARLAN, J., DISSENTING).  AND WHAT LITTLE
THERE MAY BE LEFT AFTER DUNCAN, IS, LIKE STRAUDER V. WEST VIRGINIA, 100
U.S. 303, AND HOYT V. FLORIDA, 368 U.S. 57, BASED ON AN OBSOLETE VIEW
OF WOMAN'S ROLE WHICH DOES NOT SQUARE WITH REALITY.  "(THE FAY) DICTUM
. . . CALLS TO MIND-- IN ITS TOTAL RELIANCE ON HISTORICAL PRACTICE AS
JUSTIFICATION FOR SEX DISCRIMINATION-- THE . . . OBSERVATION . . . THAT
ATTITUDES CAN BE MORE FORMIDABLE THAN ARGUMENTS."  JOHNSTON & KNAPP,
SEX DISCRIMINATION BY LAW:  A STUDY IN JUDICIAL PERSPECTIVE, 46
N.Y.U.L.REV.  675, 715 (1971).  SEE STATE V. EMERY, 224 N.C. 581, 601,
31 S.E.2D 858, 871 (1944) (SEAWELL, J., DISSENTING).  SEE ALSO
ROSENCRANTZ V. TERRITORY, SUPRA (TURNER, J., DISSENTING). 

CHARLES STEPHEN RALSTON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM
ON THE BRIEF WERE JACK GREENBERG, JAMES M. NABRIT, III, MARGRETT FORD,
AND CHARLES FINLEY. 

BERTRAND DEBLANC ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, HARRY
HOWARD, ASSISTANT ATTORNEY GENERAL, AND CHARLES R. SONNIER. 

BIRCH BAYH FILED A BRIEF FOR THE NATIONAL FEDERATION OF BUSINESS AND
PROFESSIONAL WOMEN'S CLUBS, INC., AS AMICUS CURIAE URGING REVERSAL. 
..END :
















STANLEY V. ILLINOIS, 405 U.S. 645 


       STANLEY V. ILLINOIS

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS

        NO. 70-5014.  ARGUED OCTOBER 19, 1971-- DECIDED APRIL 3,

           1972 


PETITIONER, AN UNWED FATHER WHOSE CHILDREN, ON THE MOTHER'S DEATH,
WERE DECLARED STATE WARDS AND PLACED IN GUARDIANSHIP, ATTACKED THE
ILLINOIS STATUTORY SCHEME AS VIOLATIVE OF EQUAL PROTECTION.  UNDER THAT
SCHEME THE CHILDREN OF UNMARRIED FATHERS, UPON THE DEATH OF THE MOTHER,
ARE DECLARED DEPENDENTS WITHOUT ANY HEARING ON PARENTAL FITNESS AND
WITHOUT PROOF OF NEGLECT, THOUGH SUCH HEARING AND PROOF ARE REQUIRED
BEFORE THE STATE ASSUMES CUSTODY OF CHILDREN OF MARRIED OR DIVORCED
PARENTS AND UNMARRIED MOTHERS.  THE ILLINOIS SUPREME COURT HOLDING THAT
PETITIONER COULD PROPERLY BE SEPARATED FROM HIS CHILDREN UPON MERE
PROOF THAT HE AND THE DEAD MOTHER HAD NOT BEEN MARRIED AND THAT
PETITIONER'S FITNESS AS A FATHER WAS IRRELEVANT, REJECTED PETITIONER'S
CLAIM.  HELD: 

1.  UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
PETITIONER WAS ENTITLED TO A HEARING ON HIS FITNESS AS A PARENT BEFORE
HIS CHILDREN WERE TAKEN FROM HIM.  PP. 647-658. 

(A) THE FACT THAT PETITIONER CAN APPLY FOR ADOPTION OR FOR CUSTODY
AND CONTROL OF HIS CHILDREN DOES NOT BAR HIS ATTACK ON THE DEPENDENCY
PROCEEDING.  PP. 647-649. 

(B) THE STATE CANNOT, CONSISTENTLY WITH DUE PROCESS REQUIREMENTS,
MERELY PRESUME THAT UNMARRIED FATHERS IN GENERAL AND PETITIONER IN
PARTICULAR ARE UNSUITABLE AND NEGLECTFUL PARENTS.  PARENTAL UNFITNESS
MUST BE ESTABLISHED ON THE BASIS OF INDIVIDUALIZED PROOF.  SEE BELL V.
BURSON, 402 U.S. 535.  PP. 649-658. 

2.  THE DENIAL TO UNWED FATHERS OF THE HEARING ON FITNESS ACCORDED
TO ALL OTHER PARENTS WHOSE CUSTODY OF THEIR CHILDREN IS CHALLENGED BY
THE STATE CONSTITUTES A DENIAL OF EQUAL PROTECTION OF THE LAWS.  P.
658. 

45 ILL.2D 132, 256 N.E.2D 814, REVERSED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, AND MARSHALL, JJ., JOINED, AND IN PARTS I AND II OF WHICH
DOUGLAS, J., JOINED.  BURGER, C.J., FILED A DISSENTING OPINION, IN
WHICH BLACKMUN J., JOINED, POST, P. 659.  POWELL AND REHNQUIST, JJ.,
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

JOAN STANLEY LIVED WITH PETER STANLEY INTERMITTENTLY FOR 18 YEARS,
DURING WHICH TIME THEY HAD THREE CHILDREN.  /1/  WHEN JOAN STANLEY
DIED, PETER STANLEY LOST NOT ONLY HER BUT ALSO HIS CHILDREN.  UNDER
ILLINOIS LAW, THE CHILDREN OF UNWED FATHERS BECOME WARDS OF THE STATE
UPON THE DEATH OF THE MOTHER.  ACCORDINGLY, UPON JOAN STANLEY'S DEATH,
IN A DEPENDENCY PROCEEDING INSTITUTED BY THE STATE OF ILLINOIS,
STANLEY'S CHILDREN /2/  WERE DECLARED WARDS OF THE STATE AND PLACED
WITH COURT-APPOINTED GUARDIANS.  STANLEY APPEALED, CLAIMING THAT HE HAD
NEVER BEEN SHOWN TO BE AN UNFIT PARENT AND THAT SINCE MARRIED FATHERS
AND UNWED MOTHERS COULD NOT BE DEPRIVED OF THEIR CHILDREN WITHOUT SUCH
A SHOWING, HE HAD BEEN DEPRIVED OF THE EQUAL PROTECTION OF THE LAWS
GUARANTEED HIM BY THE FOURTEENTH AMENDMENT.  THE ILLINOIS SUPREME COURT
ACCEPTED THE FACT THAT STANLEY'S OWN UNFITNESS HAD NOT BEEN ESTABLISHED
BUT REJECTED THE EQUAL PROTECTION CLAIM, HOLDING THAT STANLEY COULD
PROPERLY BE SEPARATED FROM HIS CHILDREN UPON PROOF OF THE SINGLE FACT
THAT HE AND THE DEAD MOTHER HAD NOT BEEN MARRIED.  STANLEY'S ACTUAL
FITNESS AS A FATHER WAS IRRELEVANT.  IN RE STANLEY, 45 ILL.2D 132, 256
N.E.2D 814 (1970). 

STANLEY PRESSES HIS EQUAL PROTECTION CLAIM HERE.  THE STATE
CONTINUES TO RESPOND THAT UNWED FATHERS ARE PRESUMED UNFIT TO RAISE
THEIR CHILDREN AND THAT IT IS UNNECESSARY TO HOLD INDIVIDUALIZED
HEARINGS TO DETERMINE WHETHER PARTICULAR FATHERS ARE IN FACT UNFIT
PARENTS BEFORE THEY ARE SEPARATED FROM THEIR CHILDREN.  WE GRANTED
CERTIORARI, 400 U.S. 1020 (1971), TO DETERMINE WHETHER THIS METHOD OF
PROCEDURE BY PRESUMPTION COULD BE ALLOWED TO STAND IN LIGHT OF THE FACT
THAT ILLINOIS ALLOWS MARRIED FATHERS-- WHETHER DIVORCED, WIDOWED, OR
SEPARATED-- AND MOTHERS-- EVEN IF UNWED-- THE BENEFIT OF THE
PRESUMPTION THAT THEY ARE FIT TO RAISE THEIR CHILDREN. 

        I 

AT THE OUTSET WE REJECT ANY SUGGESTION THAT WE NEED NOT CONSIDER THE
PROPRIETY OF THE DEPENDENCY PROCEEDING THAT SEPARATED THE STANLEYS
BECAUSE STANLEY MIGHT BE ABLE TO REGAIN CUSTODY OF HIS CHILDREN AS A
GUARDIAN OR THROUGH ADOPTION PROCEEDINGS.  THE SUGGESTION IS THAT IF
STANLEY HAS BEEN TREATED DIFFERENTLY FROM OTHER PARENTS, THE DIFFERENCE
IS IMMATERIAL AND NOT LEGALLY COGNIZABLE FOR THE PURPOSES OF THE
FOURTEENTH AMENDMENT.  THIS COURT HAS NOT, HOWEVER, EMBRACED THE
GENERAL PROPOSITION THAT A WRONG MAY BE DONE IF IT CAN BE UNDONE.  CF.
SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337 (1969).  SURELY, IN THE
CASE BEFORE US, IF THERE IS DELAY BETWEEN THE DOING AND THE UNDOING
PETITIONER SUFFERS FROM THE DEPRIVATION OF HIS CHILDREN, AND THE
CHILDREN SUFFER FROM UNCERTAINTY AND DISLOCATION. 

IT IS CLEAR, MOREOVER, THAT STANLEY DOES NOT HAVE THE MEANS AT HAND
PROMPTLY TO ERASE THE ADVERSE CONSEQUENCES OF THE PROCEEDING IN THE
COURSE OF WHICH HIS CHILDREN WERE DECLARED WARDS OF THE STATE.  IT IS
FIRST URGED THAT STANLEY COULD ACT TO ADOPT HIS CHILDREN.  BUT UNDER
ILLINOIS LAW, STANLEY IS TREATED NOT AS A PARENT BUT AS A STRANGER TO
HIS CHILDREN, AND THE DEPENDENCY PROCEEDING HAS GONE FORWARD ON THE
PRESUMPTION THAT HE IS UNFIT TO EXERCISE PARENTAL RIGHTS.  INSOFAR AS
WE ARE INFORMED, ILLINOIS LAW AFFORDS HIM NO PRIORITY IN ADOPTION
PROCEEDINGS.  IT WOULD BE HIS BURDEN TO ESTABLISH NOT ONLY THAT HE
WOULD BE A SUITABLE PARENT BUT ALSO THAT HE WOULD BE THE MOST SUITABLE
OF ALL WHO MIGHT WANT CUSTODY OF THE CHILDREN.  NEITHER CAN WE IGNORE
THAT IN THE PROCEEDINGS FROM WHICH THIS ACTION DEVELOPED, THE
"PROBATION OFFICER," SEE APP. 17, THE ASSISTANT STATE'S ATTORNEY, SEE
ID., AT 29-30, AND THE JUDGE CHARGED WITH THE CASE, SEE ID., AT 16-18,
23, MADE IT APPARENT THAT STANLEY, UNMARRIED AND IMPECUNIOUS AS HE IS,
COULD NOT NOW EXPECT TO PROFIT FROM ADOPTION PROCEEDINGS.  /3/  THE
ILLINOIS SUPREME COURT APPARENTLY RECOGNIZED SOME OR ALL OF THESE
CONSIDERATIONS, BECAUSE IT DID NOT SUGGEST THAT STANLEY'S CASE WAS
UNDERCUT BY HIS FAILURE TO PETITION FOR ADOPTION. 

BEFORE US, THE STATE FOCUSES ON STANLEY'S FAILURE TO PETITION FOR
"CUSTODY AND CONTROL"-- THE SECOND ROUTE BY WHICH, IT IS URGED, HE
MIGHT REGAIN AUTHORITY FOR HIS CHILDREN.  PASSING THE OBVIOUS ISSUE
WHETHER IT WOULD BE FUTILE OR BURDENSOME FOR AN UNMARRIED FATHER--
WITHOUT FUNDS AND ALREADY ONCE PRESUMED UNFIT-- TO PETITION FOR
CUSTODY, THIS SUGGESTION OVERLOOKS THE FACT THAT LEGAL CUSTODY IS NOT
PARENTHOOD OR ADOPTION.  A PERSON APPOINTED GUARDIAN IN AN ACTION FOR
CUSTODY AND CONTROL IS SUBJECT TO REMOVAL AT ANY TIME WITHOUT SUCH
CAUSE AS MUST BE SHOWN IN A NEGLECT PROCEEDING AGAINST A PARENT.  ILL.
REV. STAT., C. 37, SECS. 705-8, HE MAY NOT TAKE THE CHILDREN OUT OF THE
JURISDICTION WITHOUT THE COURT'S APPROVAL.  HE MAY BE REQUIRED TO
REPORT TO THE COURT AS TO HIS DISPOSITION OF THE CHILDREN'S AFFAIRS. 
ILL. REV. STAT., C. 37, SEC. 705-8.  OBVIOUSLY THEN, EVEN IF STANLEY
WERE A MERE STEP AWAY FROM "CUSTODY AND CONTROL," TO GIVE AN UNWED
FATHER ONLY "CUSTODY AND CONTROL" WOULD STILL BE TO LEAVE HIM SERIOUSLY
PREJUDICED BY REASON OF HIS STATUS. 

WE MUST THEREFORE EXAMINE THE QUESTION THAT ILLINOIS WOULD HAVE US
AVOID:  IS A PRESUMPTION THAT DISTINGUISHES AND BURDENS ALL UNWED
FATHERS CONSTITUTIONALLY REPUGNANT?  WE CONCLUDE THAT, AS A MATTER OF
DUE PROCESS OF LAW, STANLEY WAS ENTITLED TO A HEARING ON HIS FITNESS AS
A PARENT BEFORE HIS CHILDREN WERE TAKEN FROM HIM AND THAT, BY DENYING
HIM A HEARING AND EXTENDING IT TO ALL OTHER PARENTS WHOSE CUSTODY OF
THEIR CHILDREN IS CHALLENGED, THE STATE DENIED STANLEY THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT. 

        II 

ILLINOIS HAS TWO PRINCIPAL METHODS OF REMOVING NON-DELINQUENT
CHILDREN FROM THE HOMES OF THEIR PARENTS.  IN A DEPENDENCY PROCEEDING
IT MAY DEMONSTRATE THAT THE CHILDREN ARE WARDS OF THE STATE BECAUSE
THEY HAVE NO SURVIVING PARENT OR GUARDIAN.  ILL. REV. STAT., C. 37,
SECS. 702-1, 702-5.  IN A NEGLECT PROCEEDING IT MAY SHOW THAT CHILDREN
SHOULD BE WARDS OF THE STATE BECAUSE THE PRESENT PARENTS) OR GUARDIAN
DOES NOT PROVIDE SUITABLE CARE.  ILL. REV. STAT., C. 37, SECS. 702-1,
702-4. 

THE STATE'S RIGHT-- INDEED, DUTY-- TO PROTECT MINOR CHILDREN THROUGH
A JUDICIAL DETERMINATION OF THEIR INTERESTS IN A NEGLECT PROCEEDING IS
NOT CHALLENGED HERE.  RATHER, WE ARE FACED WITH A DEPENDENCY STATUTE
THAT EMPOWERS STATE OFFICIALS TO CIRCUMVENT NEGLECT PROCEEDINGS ON THE
THEORY THAT AN UNWED FATHER IS NOT A "PARENT" WHOSE EXISTING
RELATIONSHIP WITH HIS CHILDREN MUST BE CONSIDERED.  /4/  "PARENTS,"
SAYS THE STATE, "MEANS THE FATHER AND MOTHER OF A LEGITIMATE CHILD, OR
THE SURVIVOR OF THEM, OR THE NATURAL MOTHER OF AN ILLEGITIMATE CHILD,
AND INCLUDES ANY ADOPTIVE PARENT," ILL. REV. STAT., C. 37, SEC. 701-14,
BUT THE TERM DOES NOT INCLUDE UNWED FATHERS. 

UNDER ILLINOIS LAW, THEREFORE, WHILE THE CHILDREN OF ALL PARENTS CAN
BE TAKEN FROM THEM IN NEGLECT PROCEEDINGS, THAT IS ONLY AFTER NOTICE,
HEARING, AND PROOF OF SUCH UNFITNESS AS A PARENT AS AMOUNTS TO NEGLECT,
AN UNWED FATHER IS UNIQUELY SUBJECT TO THE MORE SIMPLISTIC DEPENDENCY
PROCEEDING.  BY USE OF THIS PROCEEDING, THE STATE, ON SHOWING THAT THE
FATHER WAS NOT MARRIED TO THE MOTHER, NEED NOT PROVE UNFITNESS IN FACT,
BECAUSE IT IS PRESUMED AT LAW.  THUS, THE UNWED FATHER'S CLAIM OF
PARENTAL QUALIFICATION IS AVOIDED AS "IRRELEVANT." 

IN CONSIDERING THIS PROCEDURE UNDER THE DUE PROCESS CLAUSE, WE
RECOGNIZE, AS WE HAVE IN OTHER CASES, THAT DUE PROCESS OF LAW DOES NOT
REQUIRE A HEARING "IN EVERY CONCEIVABLE CASE OF GOVERNMENT IMPAIRMENT
OF PRIVATE INTEREST."  CAFETERIA WORKERS V. MCELROY, 367 U.S. 886, 894
(1961).  THAT CASE EXPLAINED THAT "(THE VERY NATURE OF DUE PROCESS
NEGATES ANY CONCEPT OF INFLEXIBLE PROCEDURES UNIVERSALLY APPLICABLE TO
EVERY IMAGINABLE SITUATION" AND FIRMLY ESTABLISHED THAT "WHAT
PROCEDURES DUE PROCESS MAY REQUIRE UNDER ANY GIVEN SET OF CIRCUMSTANCES
MUST BEGIN WITH A DETERMINATION OF THE PRECISE NATURE OF THE GOVERNMENT
FUNCTION INVOLVED AS WELL AS OF THE PRIVATE INTEREST THAT HAS BEEN
AFFECTED BY GOVERNMENTAL ACTION."  ID., AT 895; GOLDBERG V. KELLY, 397
U.S. 254, 263 (1970). 

THE PRIVATE INTEREST HERE, THAT OF A MAN IN THE CHILDREN HE HAS
SIRED AND RAISED, UNDENIABLY WARRANTS DEFERENCE AND, ABSENT A POWERFUL
COUNTERVAILING INTEREST, PROTECTION.  IT IS PLAIN THAT THE INTEREST OF
A PARENT IN THE COMPANIONSHIP, CARE, CUSTODY, AND MANAGEMENT OF HIS OR
HER CHILDREN "COMES) TO THIS COURT WITH A MOMENTUM FOR RESPECT LACKING
WHEN APPEAL IS MADE TO LIBERTIES WHICH DERIVE MERELY FROM SHIFTING
ECONOMIC ARRANGEMENTS."  KOVACS V. COOPER, 336 U.S. 77, 95 (1949)
(FRANKFURTER, J., CONCURRING). 

THE COURT HAS FREQEUNTLY EMPHASIZED THE IMPORTANCE OF THE FAMILY. 
THE RIGHTS TO CONCEIVE AND TO RAISE ONE'S CHILDREN HAVE BEEN DEEMED
"ESSENTIAL,"  MEYER V. NEBRASKA, 262 U.S. 390, 399 (1923), "BASIC CIVIL
RIGHTS OF MAN," SKINNER V. OKLAHOMA, 316 U.S. 535, 541 (1942), AND
"(RIGHTS FAR MORE PRECIOUS . . . THAN PROPERTY RIGHTS," MAY V.
ANDERSON, 345 U.S. 528, 533 (1953).  "IT IS CARDINAL WITH US THAT THE
CUSTODY, CARE AND NURTURE OF THE CHILD RESIDE FIRST IN THE PARENTS,
WHOSE PRIMARY FUNCTION AND FREEDOM INCLUDE PREPARATION FOR OBLIGATIONS
THE STATE CAN NEITHER SUPPLY NOR HINDER."  PRINCE V. MASSACHUSETTS, 321
U.S. 158, 166 (1944).  THE INTEGRITY OF THE FAMILY UNIT HAS FOUND
PROTECTION IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, MEYER
V. NEBRASKA, SUPRA, AT 399, THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, SKINNER V. OKLAHOMA, SUPRA, AT 541, AND THE NINTH
AMENDMENT, GRISWOLD V. CONNECTICUT, 381 U.S. 479, 496 (1965) (GOLDBERG
J., CONCURRING). 

NOR HAS THE LAW REFUSED TO RECOGNIZE THOSE FAMILY RELATIONSHIPS
UNLEGITIMIZED BY A MARRIAGE CEREMONY.  THE COURT HAS DECLARED
UNCONSTITUTIONAL A STATE STATUTE DENYING NATURAL, BUT ILLEGITIMATE,
CHILDREN A WRONGFUL-DEATH ACTION FOR THE DEATH OF THEIR MOTHER,
EMPHASIZING THAT SUCH CHILDREN CANNOT BE DENIED THE RIGHT OF OTHER
CHILDREN BECAUSE FAMILIAL BONDS IN SUCH CASES WERE OFTEN AS WARM,
ENDURING, AND IMPORTANT AS THOSE ARISING WITHIN A MORE FORMALLY
ORGANIZED FAMILY UNIT.  LEVY V. LOUISIANA, 391 U.S. 68, 71-72 (1968). 
"TO SAY THAT THE TEST OF EQUAL PROTECTION SHOULD BE THE 'LEGAL' RATHER
THAN THE BIOLOGICAL RELATIONSHIP IS TO AVOID THE ISSUE.  FOR THE EQUAL
PROTECTION CLAUSE NECESSARILY LIMITS THE AUTHORITY OF A STATE TO DRAW
SUCH 'LEGAL' LINES AS IT CHOOSES."  GLONA V. AMERICAN GUARANTEE CO.,
391 U.S. 73, 75-76 (1968). 

THESE AUTHORITIES MAKE IT CLEAR THAT, AT THE LEAST, STANLEY'S
INTEREST IN RETAINING CUSTODY OF HIS CHILDREN IS COGNIZABLE AND
SUBSTANTIAL. 

FOR ITS PART, THE STATE HAS MADE ITS INTEREST QUITE PLAIN:  ILLINOIS
HAS DECLARED THAT THE AIM OF THE JUVENILE COURT ACT IS TO PROTECT "THE
MORAL, EMOTIONAL, MENTAL AND PHYSICAL WELFARE OF THE MINOR AND THE BEST
INTERESTS OF THE COMMUNITY" AND TO "STRENGTHEN THE MINOR'S FAMILY TIES
WHENEVER POSSIBLE, REMOVING HIM FROM THE CUSTODY OF HIS PARENTS ONLY
WHEN HIS WELFARE OR SAFETY OR THE PROTECTION OF THE PUBLIC CANNOT BE
ADEQUATELY SAFEGUARDED WITHOUT REMOVAL . . . . "  ILL. REV. STAT., C.
37, SEC. 701-2.  THESE ARE LEGITIMATE INTERESTS, WELL WITHIN THE POWER
OF THE STATE TO IMPLEMENT.  WE DO NOT QUESTION THE ASSERTION THAT
NEGLECTFUL PARENTS MAY BE SEPARATED FROM THEIR CHILDREN. 

BUT WE ARE HERE NOT ASKED TO EVALUATE THE LEGITIMACY OF THE STATE
ENDS, RATHER, TO DETERMINE WHETHER THE MEANS USED TO ACHIEVE THESE ENDS
ARE CONSTITUTIONALLY DEFENSIBLE.  WHAT IS THE STATE INTEREST IN
SEPARATING CHILDREN FROM FATHERS WITHOUT A HEARING DESIGNED TO
DETERMINE WHETHER THE FATHER IS UNFIT IN A PARTICULAR DISPUTED CASE? 
WE OBSERVE THAT THE STATE REGISTERS NO GAIN TOWARDS ITS DECLARED GOALS
WHEN IT SEPARATES CHILDREN FROM THE CUSTODY OF FIT PARENTS.  INDEED, IF
STANLEY IS A FIT FATHER, THE STATE SPITES ITS OWN ARTICULATED GOALS
WHEN IT NEEDLESSLY SEPARATES HIM FROM HIS FAMILY. 

IN BELL V. BURSON, 402 U.S. 535 (1971), WE FOUND A SCHEME REPUGNANT
TO THE DUE PROCESS CLAUSE BECAUSE IT DEPRIVED A DRIVER OF HIS LICENSE
WITHOUT REFERENCE TO THE VERY FACTOR (THERE FAULT IN DRIVING, HERE
FITNESS AS A PARENT) THAT THE STATE ITSELF DEEMED FUNDAMENTAL TO ITS
STATUTORY SCHEME.  ILLINOIS WOULD AVOID THE SELF-CONTRADICTION THAT
RENDERED THE GEORGIA LICENSE SUSPENSION SYSTEM INVALID BY ARGUING THAT
STANLEY AND ALL OTHER UNMARRIED FATHERS CAN REASONABLY BE PRESUMED TO
BE UNQUALIFIED TO RAISE THEIR CHILDREN.  /5/ 

IT MAY BE, AS THE STATE INSISTS, THAT MOST UNMARRIED FATHERS ARE
UNSUITABLE AND NEGLECTFUL PARENTS.  /6/  IT MAY ALSO BE THAT STANLEY IS
SUCH A PARENT AND THAT HIS CHILDREN SHOULD BE PLACED IN OTHER HANDS. 
BUT ALL UNMARRIED FATHERS ARE NOT IN THIS CATEGORY; SOME ARE WHOLLY
SUITED TO HAVE CUSTODY OF THEIR CHILDREN.  /7/  THIS MUCH THE STATE
READILY CONCEDES, AND NOTHING IN THIS RECORD INDICATES THAT STANLEY IS
OR HAS BEEN A NEGLECTFUL FATHER WHO HAS NOT CARED FOR HIS CHILDREN. 
GIVEN THE OPPORTUNITY TO MAKE HIS CASE, STANLEY MAY HAVE BEEN SEEN TO
BE DESERVING OF CUSTODY OF HIS OFFSPRING.  HAD THIS BEEN SO, THE
STATE'S STATUTORY POLICY WOULD HAVE BEEN FURTHERED BY LEAVING CUSTODY
IN HIM.     CARRINGTON V. RASH, 380 U.S. 89 (1965), DEALT WITH A
SIMILAR SITUATION.  THERE WE RECOGNIZED THAT TEXAS HAD A POWERFUL
INTEREST IN RESTRICTING ITS ELECTORATE TO BONA FIDE RESIDENTS.  IT WAS
NOT DISPUTED THAT MOST SERVICEMEN STATIONED IN TEXAS HAD NO INTENTION
OF REMAINING IN THE STATE; MOST THEREFORE COULD BE DEPRIVED OF A VOTE
IN STATE AFFAIRS.  BUT WE REFUSED TO TOLERATE A BLANKET EXCLUSION
DEPRIVING ALL SERVICEMEN OF THE VOTE, WHEN SOME SERVICEMEN CLEARLY WERE
BONA FIDE RESIDENTS AND WHEN "MORE PRECISE TESTS," ID., AT 95, WERE
AVAILABLE TO DISTINGUISH MEMBERS OF THIS LATTER GROUP.  "BY FORBIDDING
A SOLDIER EVER TO CONTROVERT THE PRESUMPTION OF NONRESIDENCE," ID., AT
96, THE STATE, WE SAID, UNJUSTIFIABLY EFFECTED A SUBSTANTIAL
DEPRIVATION.  IT VIEWED PEOPLE ONE-DIMENSIONALLY (AS SERVICEMEN) WHEN A
FINER PERCEPTION COULD READILY HAVE BEEN ACHIEVED BY ASSESSING A
SERVICEMAN'S CLAIM TO RESIDENCY ON AN INDIVIDUALIZED BASIS. 

  "WE RECOGNIZE THAT SPECIAL PROBLEMS MAY BE INVOLVED IN

 DETERMINING WHETHER SERVICEMEN HAVE ACTUALLY ACQUIRED A NEW

  DOMICILE IN A STATE FOR FRANCHISE PURPOSES.  WE EMPHASIZE THAT

  TEXAS IS FREE TO TAKE REASONABLE AND ADEQUATE STEPS, AS HAVE

  OTHER STATES, TO SEE THAT ALL APPLICANTS FOR THE VOTE ACTUALLY

  FULFILL THE REQUIREMENTS OF BONA FIDE RESIDENCE.  BUT (THE

  CHALLENGED) PROVISION GOES BEYOND SUCH RULES.  '(THE PRESUMPTION

  HERE CREATED IS . . . DEFINITELY CONCLUSIVE-- INCAPABLE OF BEING

  OVERCOME BY PROOF OF THE MOST POSITIVE CHARACTER.'"  ID., AT 96. 

"ALL SERVICEMEN NOT RESIDENTS OF TEXAS BEFORE INDUCTION," WE CONCLUDED,
"COME WITHIN THE PROVISION'S SWEEP.  NOT ONE OF THEM CAN EVER VOTE IN
TEXAS, NO MATTER" WHAT THEIR INDIVIDUAL QUALIFICATIONS.  IBID.  WE
FOUND SUCH A SITUATION REPUGNANT TO THE EQUAL PROTECTION CLAUSE. 

DESPITE BELL AND CARRINGTON, IT MAY BE ARGUED THAT UNMARRIED FATHERS
ARE SO SELDOM FIT THAT ILLINOIS NEED NOT UNDERGO THE ADMINISTRATIVE
INCONVENIENCE OF INQUIRY IN ANY CASE, INCLUDING STANLEY'S.  THE
ESTABLISHMENT OF PROMPT EFFICACIOUS PROCEDURES TO ACHIEVE LEGITIMATE
STATE ENDS IS A PROPER STATE INTEREST WORTHY OF COGNIZANCE IN
CONSTITUTIONAL ADJUDICATION.  BUT THE CONSTITUTION RECOGNIZES HIGHER
VALUES THAN SPEED AND EFFICIENCY.  /8/  INDEED, ONE MIGHT FAIRLY SAY OF
THE BILL OF RIGHTS IN GENERAL, AND THE DUE PROCESS CLAUSE IN
PARTICULAR, THAT THEY WERE DESIGNED TO PROTECT THE FRAGILE VALUES OF A
VULNERABLE CITIZENRY FROM THE OVERBEARING CONCERN FOR EFFICIENCY AND
EFFICACY THAT MAY CHARACTERIZE PRAISEWORTHY GOVERNMENT OFFICIALS NO
LESS, AND PERHAPS MORE, THAN MEDIOCRE ONES. 

PROCEDURE BY PRESUMPTION IS ALWAYS CHEAPER AND EASIER THAN
INDIVIDUALIZED DETERMINATION.  BUT WHEN, AS HERE, THE PROCEDURE
FORECLOSES THE DETERMINATIVE ISSUES OF COMPETENCE AND CARE, WHEN IT
EXPLICITLY DISDAINS PRESENT REALITIES IN DEFERENCE TO PAST FORMALITIES,
IT NEEDLESSLY RISKS RUNNING ROUGHSHOD OVER THE IMPORTANT INTEREST OF
BOTH PARENT AND CHILD.  IT THEREFORE CANNOT STAND.  /9/ 

BELL V. BURSON HELD THAT THE STATE COULD NOT, WHILE PURPORTING TO BE
CONCERNED WITH FAULT IN SUSPENDING A DRIVER'S LICENSE, DEPRIVE A
CITIZEN OF HIS LICENSE WITHOUT A HEARING THAT WOULD ASSESS FAULT. 
ABSENT FAULT, THE STATE'S DECLARED INTEREST WAS SO ATTENUATED THAT
ADMINISTRATIVE CONVENIENCE WAS INSUFFICIENT TO EXCUSE A HEARING WHERE
EVIDENCE OF FAULT COULD BE CONSIDERED.  THAT DRIVERS INVOLVED IN
ACCIDENTS, AS A STATISTICAL MATTER, MIGHT BE VERY LIKELY TO HAVE BEEN
WHOLLY OR PARTIALLY AT FAULT DID NOT FORECLOSE HEARING AND PROOF IN
SPECIFIC CASES BEFORE LICENSES WERE SUSPENDED. 

WE THINK THE DUE PROCESS CLAUSE MANDATES A SIMILAR RESULT HERE.  THE
STATE'S INTEREST IN CARING FOR STANLEY'S CHILDREN IS DE MINIMIS IF
STANLEY IS SHOWN TO BE A FIT FATHER.  IT INSISTS ON PRESUMING RATHER
THAN PROVING STANLEY'S UNFITNESS SOLELY BECAUSE IT IS MORE CONVENIENT
TO PRESUME THAN TO PROVE.  UNDER THE DUE PROCESS CLAUSE THAT ADVANTAGE
IS INSUFFICIENT TO JUSTIFY REFUSING A FATHER A HEARING WHEN THE ISSUE
AT STAKE IS THE DISMEMBERMENT OF HIS FAMILY. 

III 

THE STATE OF ILLINOIS ASSUMES CUSTODY OF THE CHILDREN OF MARRIED
PARENTS, DIVORCED PARENTS, AND UNMARRIED MOTHERS ONLY AFTER A HEARING
AND PROOF OF NEGLECT.  THE CHILDREN OF UNMARRIED FATHERS, HOWEVER, ARE
DECLARED DEPENDENT CHILDREN WITHOUT A HEARING ON PARENTAL FITNESS AND
WITHOUT PROOF OF NEGLECT.  STANLEY'S CLAIM IN THE STATE COURTS AND HERE
IS THAT FAILURE TO AFFORD HIM A HEARING ON HIS PARENTAL QUALIFICATIONS
WHILE EXTENDING IT TO OTHER PARENTS DENIED HIM EQUAL PROTECTION OF THE
LAWS.  WE HAVE CONCLUDED THAT ALL ILLINOIS PARENTS ARE CONSTITUTIONALLY
ENTITLED TO A HEARING ON THEIR FITNESS BEFORE THEIR CHILDREN ARE
REMOVED FROM THEIR CUSTODY.  IT FOLLOWS THAT DENYING SUCH A HEARING TO
STANLEY AND THOSE LIKE HIM WHILE GRANTING IT TO OTHER ILLINOIS PARENTS
IS INESCAPABLY CONTRARY TO THE EQUAL PROTECTION CLAUSE.  /10/ 

THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS IS REVERSED AND THE
CASE IS REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

   IT IS SO ORDERED. 

/1/  UNCONTRADICTED TESTIMONY OF PETER STANLEY, APP. 22. 

/2/  ONLY TWO CHILDREN ARE INVOLVED IN THIS LITIGATION. 

/3/  THE ILLINOIS SUPREME COURT'S OPINION IS NOT AT ALL CONTRARY TO
THIS CONCLUSION.  THAT COURT SAID:  "(THE TRIAL COURT'S COMMENTS
CLEARLY INDICATE THE COURT'S WILLINGNESS TO CONSIDER A FUTURE REQUEST
BY THE FATHER FOR CUSTODY AND GUARDIANSHIP."  45 ILL.2D 132, 135, 256
N.E.2D 814, 816.  SEE ALSO THE COMMENT OF STANLEY'S COUNSEL ON ORAL
ARGUMENT: "IF PETER STANLEY COULD HAVE ADOPTED HIS CHILDREN, WE WOULD
NOT BE HERE TODAY."  TR. OF ORAL ARG. 7. 

/4/  EVEN WHILE REFUSING TO LABEL HIM A "LEGAL PARENT," THE STATE
DOES NOT DENY THAT STANLEY HAS A SPECIAL INTEREST IN THE OUTCOME OF
THESE PROCEEDINGS.  IT IS UNDISPUTED THAT HE IS THE FATHER OF THESE
CHILDREN, THAT HE LIVED WITH THE TWO CHILDREN WHOSE CUSTODY IS
CHALLENGED ALL THEIR LIVES, AND THAT HE HAS SUPPORTED THEM. 

/5/ ILLINOIS SAYS IN ITS BRIEF, AT 21-23. 

"(THE ONLY RELEVANT CONSIDERATION IN DETERMINING THE PROPRIETY OF
GOVERNMENTAL INTERVENTION IN THE RAISING OF CHILDREN IS WHETHER THE
BEST INTERESTS OF THE CHILD ARE SERVED BY SUCH INTERVENTION. 

"IN EFFECT, ILLINOIS HAS IMPOSED A STATUTORY PRESUMPTION THAT THE
BEST INTERESTS OF A PARTICULAR GROUP OF CHILDREN NECESSITATES SOME
GOVERNMENTAL SUPERVISION IN CERTAIN CLEARLY DEFINED SITUATIONS.  THE
GROUP OF CHILDREN WHO ARE ILLEGITIMATE ARE DISTINGUISHABLE FROM
LEGITIMATE CHILDREN NOT SO MUCH BY THEIR STATUS AT BIRTH AS BY THE
FACTUAL DIFFERENCES IN THEIR UPBRINGING.  WHILE A LEGITIMATE CHILD
USUALLY IS RAISED BY BOTH PARENTS WITH THE ATTENDANT FAMILIAL
RELATIONSHIPS AND A FIRM CONCEPT OF HOME AND IDENTITY, THE ILLEGITIMATE
CHILD NORMALLY KNOWS ONLY ONE PARENT-- THE MOTHER.  . . . 

" . . . THE PETITIONER HAS PREMISED HIS ARGUMENT UPON PARTICULAR
FACTUAL CIRCUMSTANCES-- A LENGTHY RELATIONSHIP WITH THE MOTHER . . . A
FAMILIAL RELATIONSHIP WITH THE TWO CHILDREN, AND A GENERAL ASSUMPTION
THAT THIS RELATIONSHIP APPROXIMATES THAT IN WHICH THE NATURAL PARENTS
ARE MARRIED TO EACH OTHER. 

" . . . EVEN IF THIS CHARACTERIZATION WERE ACCURATE (THE RECORD IS
INSUFFICIENT TO SUPPORT IT) IT WOULD NOT AFFECT THE VALIDITY OF THE
STATUTORY DEFINITION OF PARENT.  . . . THE PETITIONER DOES NOT DENY
THAT THE CHILDREN ARE ILLEGITIMATE.  THE RECORD REFLECTS THEIR NATURAL
MOTHER'S DEATH.  GIVEN THESE TWO FACTORS, GROUNDS EXIST FOR THE STATE'S
INTERVENTION TO ENSURE ADEQUATE CARE AND PROTECTION FOR THESE
CHILDREN.  THIS IS TRUE WHETHER OR NOT THIS PARTICULAR PETITIONER
ASSIMILATES ALL OR NONE OF THE NORMAL CHARACTERISTICS COMMON TO THE
CLASSIFICATION OF FATHERS WHO ARE NOT MARRIED TO THE MOTHERS OF THEIR
CHILDREN." 

SEE ALSO ILLINOIS' BRIEF 23 ("THE COMPARISON OF MARRIED AND PUTATIVE
FATHERS INVOLVES EXCLUSIVELY FACTUAL DIFFERENCES.  THE MOST SIGNIFICANT
OF THESE ARE THE PRESENCE OR ABSENCE OF THE FATHER FROM THE HOME ON A
DAY-TO-DAY BASIS AND THE RESPONSIBILITY IMPOSED UPON THE
RELATIONSHIP"), ID., AT 24 (TO THE SAME EFFECT), ID., AT 31 (QUOTED
BELOW IN N. 6), ID., AT 24-26 (PHYSIOLOGICAL AND OTHER STUDIES ARE
CITED IN SUPPORT OF THE PROPOSITION THAT MEN ARE NOT NATURALLY INCLINED
TO CHILDREARING), AND TR. OF ORAL ARG. 31 ("WE SUBMIT THAT BOTH BASED
ON HISTORY OR (SIC) CULTURE THE VERY REAL DIFFERENCES . . . BETWEEN THE
MARRIED FATHER AND THE UNMARRIED FATHER, IN TERMS OF THEIR INTERESTS IN
CHILDREN AND THEIR LEGAL RESPONSIBILITY FOR THEIR CHILDREN, THAT THE
STATUTE HERE FULFILLS THE COMPELLING GOVERNMENTAL OBJECTIVE OF
PROTECTING CHILDREN . . . "). 

/6/  THE STATE SPEAKS OF "THE GENERAL DISINTEREST OF PUTATIVE
FATHERS IN THEIR ILLEGITIMATE CHILDREN" (BRIEF 8) AND OPINES THAT "(IN
MOST INSTANCES, THE NATURAL FATHER IS A STRANGER TO HIS CHILDREN." 
BRIEF 31. 

/7/  SEE IN RE MARK T., 8 MICH.APP.  122, 154 N.W.2D 27 (1967). 
THERE A PANEL OF THE MICHIGAN COURT OF APPEALS IN UNANIMOUSLY AFFIRMING
A CIRCUIT COURT'S DETERMINATION THAT THE FATHER OF AN ILLEGITIMATE SON
WAS BEST SUITED TO RAISE THE BOY, SAID: 

"THE APPELLANTS' PRESENTATION IN THIS CASE PROCEEDS ON THE
ASSUMPTION THAT PLACING MARK FOR ADOPTION IS INHERENTLY PREFERABLE TO
REARING BY HIS FATHER, THAT UPROOTING HIM FROM THE FAMILY WHICH HE KNEW
FROM BIRTH UNTIL HE WAS A YEAR AND A HALF OLD, SECRETLY
INSTITUTIONALIZING HIM AND LATER TRANSFERRING HIM TO STRANGERS IS SO
INCONTROVERTIBLY BETTER THAT NO COURT HAS THE POWER EVEN TO CONSIDER
THE MATTER.  HARDLY ANYONE WOULD EVEN SUGGEST SUCH A PROPOSITION IF WE
WERE TALKING ABOUT A CHILD BORN IN WEDLOCK. 

"WE ARE NOT AWARE OF ANY SOCIOLOGICAL DATA JUSTIFYING THE ASSUMPTION
THAT AN ILLEGITIMATE CHILD REARED BY HIS NATURAL FATHER IS LESS LIKELY
TO RECEIVE A PROPER UPBRINGING THAN ONE REARED BY HIS NATURAL FATHER
WHO WAS AT ONE TIME MARRIED TO HIS MOTHER, OR THAT THE STIGMA OF
ILLEGITIMACY IS SO PERVASIVE IT REQUIRES ADOPTION BY STRANGERS AND
PERMANENT TERMINATION OF A SUBSISTING RELATIONSHIP WITH THE CHILD'S
FATHER."  ID., AT 146, 154 N,W.2D, AT 39. 

/8/  CF. REED V. REED, 404 U.S. 71, 76 (1971).  "CLEARLY THE
OBJECTIVE OF REDUCING THE WORKLOAD ON PROBATE COURTS BY ELIMINATING ONE
CLASS OF CONTESTS IS NOT WITHOUT SOME LEGITIMACY . . . (BUT TO) GIVE A
MANDATORY PREFERENCE TO MEMBERS OF EITHER SEX OVER MEMBERS OF THE
OTHER, MERELY TO ACCOMPLISH THE ELIMINATION OF HEARINGS ON THE MERITS,
IS TO MAKE THE VERY KIND OF ARBITRARY LEGISLATIVE CHOICE FORBIDDEN BY
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT."  CARRINGTON
V. RASH, 380 U.S. 89, 96 (1965), TEACHES THE SAME LESSON.  "  . . .
STATES MAY NOT CASUALLY DEPRIVE A CLASS OF INDIVIDUALS OF THE VOTE
BECAUSE OF SOME REMOTE ADMINISTRATIVE BENEFIT TO THE STATE.  OYAMA V.
CALIFORNIA, 332 U.S. 633.  BY FORBIDDING A SOLDIER EVER TO CONTROVERT
THE PRESUMPTION OF NONRESIDENCE, THE TEXAS CONSTITUTION IMPOSES AN
INVIDIOUS DISCRIMINATION IN VIOLATION OF THE FOURTEENTH AMENDMENT." 

/9/  WE NOTE IN PASSING THAT THE INCREMENTAL COST OF OFFERING UNWED
FATHERS AN OPPORTUNITY FOR INDIVIDUALIZED HEARINGS ON FITNESS APPEARS
TO BE MINIMAL.  IF UNWED FATHERS, IN THE MAIN, DO NOT CARE ABOUT THE
DISPOSITION OF THEIR CHILDREN, THEY WILL NOT APPEAR TO DEMAND
HEARINGS.  IF THEY DO CARE, UNDER THE SCHEME HERE HELD INVALID,
ILLINOIS WOULD ADMITTEDLY AT SOME LATER TIME HAVE TO AFFORD THEM A
PROPERLY FOCUSED HEARING IN A CUSTODY OR ADOPTION PROCEEDING. 

EXTENDING OPPORTUNITY FOR HEARING TO UNWED FATHERS WHO DESIRE AND
CLAIM COMPETENCE TO CARE FOR THEIR CHILDREN CREATES NO CONSTITUTIONAL
OR PROCEDURAL OBSTACLE TO FORECLOSING THOSE UNWED FATHERS WHO ARE NOT
SO INCLINED.  THE ILLINOIS LAW GOVERNING PROCEDURE IN JUVENILE CASES,
ILL. REV. STAT., C. 37, SEC. 704-1 ET SEQ., PROVIDES FOR PERSONAL
SERVICE, NOTICE BY CERTIFIED MAIL, OR FOR NOTICE BY PUBLICATION WHEN
PERSONAL OR CERTIFIED MAIL SERVICE CANNOT BE HAD OR WHEN NOTICE IS
DIRECTED TO UNKNOWN RESPONDENTS UNDER THE STYLE OF "ALL WHOM IT MAY
CONCERN."  UNWED FATHERS WHO DO NOT PROMPTLY RESPOND CANNOT COMPLAIN IF
THEIR CHILDREN ARE DECLARED WARDS OF THE STATE.  THOSE WHO DO RESPOND
RETAIN THE BURDEN OF PROVING THEIR FATHERHOOD. 

/10/  PREDICATING A FINDING OF CONSTITUTIONAL INVALIDITY UNDER THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT ON THE OBSERVATION
THAT A STATE HAS ACCORDED BEDROCK PROCEDURAL RIGHTS TO SOME, BUT NOT TO
ALL SIMILARLY SITUATED, IS NOT CONTRADICTORY TO OUR HOLDING IN PICARD
V. CONNOR, 404 U.S. 270 (1971).  IN THAT CASE A DUE PROCESS, RATHER
THAN AN EQUAL PROTECTION, CLAIM WAS RAISED IN THE STATE COURTS.  THE
FEDERAL COURTS WERE, IN OUR OPINION, BARRED FROM REVERSING THE STATE
CONVICTION ON GROUNDS OF CONTRAVENTION OF THE EQUAL PROTECTION CLAUSE
WHEN THAT CLAUSE HAD NOT BEEN REFERRED TO FOR CONSIDERATION BY THE
STATE AUTHORITIES.  HERE, IN CONTRAST, WE DISPOSE OF THE CASE ON THE
CONSTITUTIONAL PREMISE RAISED BELOW, REACHING THE RESULT BY A METHOD OF
ANALYSIS READILY AVAILABLE TO THE STATE COURT. 

FOR THE SAME REASON THE STRICTURES OF CARDINALE V. LOUISIANA, 394
U.S. 437 (1969), AND HILL V. CALIFORNIA, 401 U.S. 797 (1971), HAVE BEEN
FULLY OBSERVED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS JOINS IN PARTS I AND II OF THIS OPINION. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN CONCURS,
DISSENTING. 

THE ONLY CONSTITUTIONAL ISSUE RAISED AND DECIDED IN THE COURTS OF
ILLINOIS IN THIS CASE WAS WHETHER THE ILLINOIS STATUTE THAT OMITS UNWED
FATHERS FROM THE DEFINITION OF "PARENTS" VIOLATES THE EQUAL PROTECTION
CLAUSE.  WE GRANTED CERTIORARI TO CONSIDER WHETHER THE ILLINOIS SUPREME
COURT PROPERLY RESOLVED THAT EQUAL PROTECTION ISSUE WHEN IT UNANIMOUSLY
UPHELD THE STATUTE AGAINST PETITIONER STANLEY'S ATTACK.     NO DUE
PROCESS ISSUE WAS RAISED IN THE STATE COURTS; AND NO DUE PROCESS ISSUE
WAS DECIDED BY ANY STATE COURT.  AS MR. JUSTICE DOUGLAS SAID FOR THIS
COURT IN STATE FARM MUTUAL AUTOMOBILE INS. CO. V. DUEL, 324 U.S. 154,
160 (1945), "SINCE THE (STATE) SUPREME COURT DID NOT PASS ON THE
QUESTION, WE MAY NOT DO SO."  WE HAD OCCASION MORE RECENTLY TO DEAL
WITH THIS ASPECT OF THE JURISDICTIONAL LIMITS PLACED UPON THIS COURT BY
28 U.S.C. 1257 WHEN WE DECIDED HILL V. CALIFORNIA, 401 U.S. 797
(1971).  HAVING REJECTED THE CLAIM THAT CHIMEL V. CALIFORNIA, 395 U.S.
752 (1969), SHOULD BE RETROACTIVELY APPLIED TO INVALIDATE PETITIONER
HILL'S CONVICTION ON THE GROUND THAT A SEARCH INCIDENT TO ARREST WAS
OVERLY EXTENSIVE IN SCOPE, THE COURT NOTED HILL'S ADDITIONAL CONTENTION
THAT HIS PERSONAL DIARY, WHICH WAS ONE OF THE ITEMS OF EVIDENCE SEIZED
IN THAT SEARCH, SHOULD HAVE BEEN EXCLUDED ON FIFTH AMENDMENT GROUNDS AS
WELL.  MR. JUSTICE WHITE, IN HIS OPINION FOR THE COURT CONCLUDED THAT
WE LACKED JURISDICTION TO CONSIDER THE FIFTH AMENDMENT CONTENTION: 

"COUNSEL FOR (THE PETITIONER) CONCEDED AT ORAL ARGUMENT THAT THE
FIFTH AMENDMENT ISSUE WAS NOT RAISED AT TRIAL.  NOR WAS THE ISSUE
RAISED, BRIEFED, OR ARGUED IN THE CALIFORNIA APPELLATE COURTS. 
(FOOTNOTE OMITTED.)  THE PETITION FOR CERTIORARI LIKEWISE IGNORED IT.
IN THIS POSTURE OF THE CASE, THE QUESTION, ALTHOUGH BRIEFED AND ARGUED
HERE, IS NOT PROPERLY BEFORE US."  401 U.S.,AT 805. 

IN THE CASE NOW BEFORE US, IT SIMPLY DOES NOT SUFFICE TO SAY, AS THE
COURT IN A FOOTNOTE DOES SAY, THAT "WE DISPOSE OF THE CASE ON THE
CONSTITUTIONAL PREMISE RAISED BELOW, REACHING THE RESULT BY A METHOD OF
ANALYSIS READILY AVAILABLE TO THE STATE COURT."  ANTE, AT 658 N. 10. 
THE COURT'S METHOD OF ANALYSIS SEEMS TO IGNORE THE STRICTURES OF
JUSTICES DOUGLAS AND WHITE, BUT THE ANALYSIS IS CLEAR:  THE COURT HOLDS
SUA SPONTE THAT THE DUE PROCESS CLAUSE REQUIRES THAT STANLEY, THE UNWED
BIOLOGICAL FATHER, BE ACCORDED A HEARING AS TO HIS FITNESS AS A PARENT
BEFORE HIS CHILDREN ARE DECLARED WARDS OF THE STATE COURT; THE COURT
THEN REASONS THAT SINCE ILLINOIS RECOGNIZES SUCH RIGHTS TO DUE PROCESS
IN MARRIED FATHERS, IT IS REQUIRED BY THE EQUAL PROTECTION CLAUSE TO
GIVE SUCH PROTECTION TO UNMARRIED FATHERS.  THIS "METHOD OF ANALYSIS"
IS, OF COURSE, NO MORE OR LESS THAN THE USE OF THE EQUAL PROTECTION
CLAUSE AS A SHORTHAND CONDENSATION OF THE ENTIRE CONSTITUTION:  A STATE
MAY NOT DENY ANY CONSTITUTIONAL RIGHT TO SOME OF ITS CITIZENS WITHOUT
VIOLATING THE EQUAL PROTECTION CLAUSE AS A SHORTHAND CONDENSATION OF
THE ENTIRE CONSTITUTION:  A STATE MAY NOT DENY ANY CONSTITUTIONAL RIGHT
TO SOME OF ITS CITIZENS WITHOUT VIOLATING THE EQUAL PROTECTION CLAUSE
THROUGH ITS FAILURE TO DENY SUCH RIGHTS TO ALL OF ITS CITIZENS.  THE
LIMITS ON THIS COURT'S JURISDICTION ARE NOT PROPERLY EXPANDABLE BY THE
USE OF SUCH SEMANTIC DEVICES AS THAT. 

NOT ONLY DOES THE COURT TODAY USE DUBIOUS REASONING IN DEALING WITH
LIMITATIONS UPON ITS JURISDICTION, IT PROCEEDS AS WELL TO STRIKE DOWN
THE ILLINOIS STATUTE HERE INVOLVED BY "ANSWERING" ARGUMENTS THAT ARE
NOWHERE TO BE FOUND IN THE RECORD OR IN THE STATE'S BRIEF-- OR INDEED
IN THE ORAL ARGUMENT.  I HAVE BEEN UNABLE, FOR EXAMPLE, TO DISCOVER
WHERE OR WHEN THE STATE HAS ADVANCED ANY ARGUMENT THAT "IT IS
UNNECESSARY TO HOLD INDIVIDUALIZED HEARINGS TO DETERMINE WHETHER
PARTICULAR FATHERS ARE IN FACT UNFIT PARENTS BEFORE THEY ARE SEPARATED
FROM THEIR CHILDREN."  ANTE, AT 647.  NOR CAN I DISCOVER WHERE THE
STATE HAS "ARGUED) THAT STANLEY AND ALL OTHER UNMARRIED FATHERS CAN
REASONABLY BE PRESUMED TO BE UNQUALIFIED TO RAISE THEIR CHILDREN." 
ANTE, AT 653.  OR WHERE ANYONE HAS EVEN REMOTELY SUGGESTED THE
"ARGUMENT) THAT UNMARRIED FATHERS ARE SO SELDOM FIT THAT ILLINOIS NEED
NOT UNDERGO THE ADMINISTRATIVE INCONVENIENCE OF INQUIRY IN ANY CASE,
INCLUDING STANLEY'S."  ANTE, AT 656.  ON THE OTHER HAND, THE ARGUMENTS
ACTUALLY ADVANCED BY THE STATE ARE LARGELY IGNORED BY THE COURT.  /1/ 

ALL OF THOSE PERSONS IN ILLINOIS WHO MAY HAVE FOLLOWED THE PROGRESS
OF THIS CASE WILL, I EXPECT, EXPERIENCE NO LITTLE SURPRISE AT THE
COURT'S OPINION HANDED DOWN TODAY.  STANLEY WILL UNDOUBTEDLY BE
SURPRISED TO FIND THAT HE HAS PREVAILED ON AN ISSUE NEVER ADVANCED BY
HIM.  THE JUDGES WHO DEALT WITH THIS CASE IN THE STATE COURTS WILL BE
SURPRISED TO FIND THEIR DECISIONS OVERTURNED ON A GROUND THEY NEVER
CONSIDERED.  AND THE LEGISLATORS AND OTHER OFFICIALS OF THE STATE OF
ILLINOIS, AS WELL AS THOSE ATTORNEYS OF THE STATE WHO ARE FAMILIAR WITH
THE STATUTORY PROVISIONS HERE AT ISSUE, WILL BE SURPRISED TO LEARN FOR
THE FIRST TIME THAT THE ILLINOIS JUVENILE COURT ACT ESTABLISHED A
PRESUMPTION THAT UNWED FATHERS ARE UNFIT.  I MUST CONFESS MY OWN
INABILITY TO FIND ANY SUCH PRESUMPTION IN THE ILLINOIS ACT. 
FURTHERMORE, FROM THE RECORD OF THE PROCEEDINGS IN THE JUVENILE COURT
OF COOK COUNTY IN THIS CASE, I CAN ONLY CONCLUDE THAT THE JUDGE OF THAT
COURT WAS UNAWARE OF ANY SUCH PRESUMPTION, FOR HE CLEARLY INDICATED
THAT STANLEY'S ASSERTED FATHERHOOD OF THE CHILDREN WOULD STAND HIM IN
GOOD STEAD, RATHER THAN PREJUDICE HIM, IN ANY ADOPTION OR GUARDIANSHIP
PROCEEDING.  IN SHORT, SO FAR FROM ANY INTIMATIONS OF HOSTILITY TOWARD
UNWED FATHERS, THAT COURT GAVE STANLEY "MERIT POINTS" FOR HIS
ACKNOWLEDGMENT OF PATERNITY AND HIS PAST ASSUMPTION OF AT LEAST
MARGINAL RESPONSIBILITY FOR THE CHILDREN.  /2/ 

IN REGARD TO THE ONLY ISSUE THAT I CONSIDER PROPERLY BEFORE THE
COURT, I AGREE WITH THE STATE'S ARGUMENT THAT THE EQUAL PROTECTION
CLAUSE IS NOT VIOLATED WHEN ILLINOIS GIVES FULL RECOGNITION ONLY TO
THOSE FATHER-CHILD RELATIONSHIPS THAT ARISE IN THE CONTEXT OF FAMILY
UNITS BOUND TOGETHER BY LEGAL OBLIGATIONS ARISING FROM MARRIAGE OR FROM
ADOPTION PROCEEDINGS.  QUITE APART FROM THE RELIGIOUS OR QUASI
RELIGIOUS CONNOTATIONS THAT MARRIAGE HAS-- AND HAS HISTORICALLY ENJOYED
- FOR A LARGE PROPORTION OF THIS NATION'S CITIZENS, IT IS IN LAW AN
ESSENTIALLY CONTRACTUAL RELATIONSHIP, THE PARTIES TO WHICH HAVE LEGALLY
ENFORCEABLE RIGHTS AND DUTIES, WITH RESPECT BOTH TO EACH OTHER AND TO
ANY CHILDREN BORN TO THEM.  STANLEY AND THE MOTHER OF THESE CHILDREN
NEVER ENTERED SUCH A RELATIONSHIP.  THE RECORD IS SILENT AS TO WHETHER
THEY EVER PRIVATELY EXCHANGED SUCH PROMISES AS WOULD HAVE BOUND THEM IN
MARRIAGE UNDER THE COMMON LAW.  SEE CARTWRIGHT V. MCGOWN, 121 ILL. 388,
398, 12 N.E. 737, 739 (1887).  IN ANY EVENT, ILLINOIS HAS NOT
RECOGNIZED COMMON LAW MARRIAGES SINCE 1905.  ILL. REV  STAT., C. 89,
SEC. 4; STANLEY DID NOT SEEK THE BURDENS WHEN HE COULD HAVE FREELY
ASSUMED THEM. 

WHERE THERE IS A VALID CONTRACT OF MARRIAGE, THE LAW OF ILLINOIS
PRESUMES THAT THE HUSBAND IS THE FATHER OF ANY CHILD BORN TO THE WIFE
DURING THE MARRIAGE; AS THE FATHER, HE HAS LEGALLY ENFORCEABLE RIGHTS
AND DUTIES WITH RESPECT TO THAT CHILD.  WHEN A CHILD IS BORN TO AN
UNMARRIED WOMAN, ILLINOIS RECOGNIZES THE READILY IDENTIFIABLE MOTHER,
BUT MAKES NO PRESUMPTION AS TO THE IDENTITY OF THE BIOLOGICAL FATHER. 
IT DOES, HOWEVER, PROVIDE TWO WAYS, ONE VOLUNTARY AND ONE INVOLUNTARY,
IN WHICH THAT FATHER MAY BE IDENTIFIED.  FIRST, HE MAY MARRY THE MOTHER
AND ACKNOWLEDGE THE CHILD AS HIS OWN; THIS HAS THE LEGAL EFFECT OF
LEGITIMATING THE CHILD AND GAINING FOR THE FATHER FULL RECOGNITION AS A
PARENT.  ILL. REV. STAT., C. 3, SEC. 12-8.  SECOND, A MAN MAY BE FOUND
TO BE THE BIOLOGICAL FATHER OF THE CHILD PURSUANT TO A PATERNITY SUIT
INITIATED BY THE MOTHER; IN THIS CASE, THE CHILD REMAINS ILLEGITIMATE,
BUT THE ADJUDICATED FATHER IS MADE LIABLE FOR THE SUPPORT OF THE CHILD
UNTIL THE LATTER ATTAINS AGE 18 OR IS LEGALLY ADOPTED BY ANOTHER.  ILL.
REV. STAT., C. 106 3/4, SEC. 52. 

STANLEY ARGUED BEFORE THE SUPREME COURT OF ILLINOIS THAT THE
DEFINITION OF "PARENTS," SET OUT IN ILL. REV. STAT., C. 37, SEC. 701
14, AS INCLUDING "THE FATHER AND MOTHER OF A LEGITIMATE CHILD, OR THE
SURVIVOR OF THEM, OR THE NATURAL MOTHER OF AN ILLEGITIMATE CHILD, (OR)
. . . ANY ADOPTIVE PARENT,"  /3/  VIOLATES THE EQUAL PROTECTION CLAUSE
IN THAT IT TREATS UNWED MOTHERS AND UNWED FATHERS DIFFERENTLY.  STANLEY
THEN ENLARGED UPON HIS EQUAL PROTECTION ARGUMENT WHEN HE BROUGHT THE
CASE HERE; HE ARGUED BEFORE THIS COURT THAT ILLINOIS IS NOT PERMITTED
BY THE EQUAL PROTECTION CLAUSE TO DISTINGUISH BETWEEN UNWED FATHERS AND
ANY OF THE OTHER BIOLOGICAL PARENTS INCLUDED IN THE STATUTORY
DEFINITION OF LEGAL "PARENTS." 

THE ILLINOIS SUPREME COURT CORRECTLY HELD THAT THE STATE MAY
CONSTITUTIONALLY DISTINGUISH BETWEEN UNWED FATHERS AND UNWED MOTHERS. 
HERE, ILLINOIS' DIFFERENT TREATMENT OF THE TWO IS PART OF THAT STATE'S
STATUTORY SCHEME FOR PROTECTING THE WELFARE OF ILLEGITIMATE CHILDREN. 
IN ALMOST ALL CASES, THE UNWED MOTHER IS READILY IDENTIFIABLE,
GENERALLY FROM HOSPITAL RECORDS, AND ALTERNATIVELY BY PHYSICIANS OR
OTHERS ATTENDING THE CHILD'S BIRTH.  UNWED FATHERS, AS A CLASS, ARE NOT
TRADITIONALLY QUITE SO EASY TO IDENTIFY AND LOCATE.  MANY OF THEM
EITHER DENY ALL RESPONSIBILITY OR EXHIBIT NO INTEREST IN THE CHILD OR
ITS WELFARE; AND, OF COURSE, MANY UNWED FATHERS ARE SIMPLY NOT AWARE OF
THEIR PARENTHOOD. 

FURTHERMORE, I BELIEVE THAT A STATE IS FULLY JUSTIFIED IN
CONCLUDING, ON THE BASIS OF COMMON HUMAN EXPERIENCE, THAT THE
BIOLOGICAL ROLE OF THE MOTHER IN CARRYING AND NURSING AN INFANT CREATES
STRONGER BONDS BETWEEN HER AND THE CHILD THAN THE BONDS RESULTING FROM
THE MALE'S OFTEN CASUAL ENCOUNTER.  THIS VIEW IS REINFORCED BY THE
OBSERVABLE FACT THAT MOST UNWED MOTHERS EXHIBIT A CONCERN FOR THEIR
OFFSPRING EITHER PERMANENTLY OR AT LEAST UNTIL THEY ARE SAFELY PLACED
FOR ADOPTION, WHILE UNWED FATHERS RARELY BURDEN EITHER THE MOTHER OR
THE CHILD WITH THEIR ATTENTIONS OR LOYALTIES.  CENTURIES OF HUMAN
EXPERIENCE BUTTRESS THIS VIEW OF THE REALITIES OF HUMAN CONDITIONS AND
SUGGEST THAT UNWED MOTHERS OF ILLEGITIMATE CHILDREN ARE GENERALLY MORE
DEPENDABLE PROTECTORS OF THEIR CHILDREN THAN ARE UNWED FATHERS.  WHILE
THESE, LIKE MOST GENERALIZATIONS, ARE NOT WITHOUT EXCEPTIONS, THEY
NEVERTHELESS PROVIDE A SUFFICIENT BASIS TO SUSTAIN A STATUTORY
CLASSIFICATION WHOSE OBJECTIVE IS NOT TO PENALIZE UNWED PARENTS BUT TO
FURTHER THE WELFARE OF ILLEGITIMATE CHILDREN IN FULFILLMENT OF THE
STATE'S OBLIGATIONS AS PARENS PATRIAE.  /4/ 

STANLEY DEPICTS HIMSELF AS A SOMEWHAT UNUSUAL UNWED FATHER, NAMELY,
AS ONE WHO HAS ALWAYS ACKNOWLEDGED AND NEVER DOUBTED HIS FATHERHOOD OF
THESE CHILDREN.  HE ALLEGES THAT HE LOVED, CARED FOR, AND SUPPORTED
THESE CHILDREN FROM THE TIME OF THEIR BIRTH UNTIL THE DEATH OF THEIR
MOTHER.  HE CONTENDS THAT HE CONSEQUENTLY MUST BE TREATED THE SAME AS A
MARRIED FATHER OF LEGITIMATE CHILDREN.  EVEN ASSUMING THE TRUTH OF
STANLEY'S ALLEGATIONS, I AN UNABLE TO CONSTRUE THE EQUAL PROTECTION
CLAUSE AS REQUIRING ILLINOIS TO TAILOR ITS STATUTORY DEFINITION OF
"PARENTS" SO METICULOUSLY AS TO INCLUDE SUCH UNUSUAL UNWED FATHERS,
WHILE AT THE SAME TIME EXCLUDING THOSE UNWED, AND GENERALLY
UNIDENTIFIED, BIOLOGICAL FATHERS WHO IN NO WAY SHARE STANLEY'S
PROFESSED DESIRES. 

INDEED, THE NATURE OF STANLEY'S OWN DESIRES IS LESS THAN ABSOLUTELY
CLEAR FROM THE RECORD IN THIS CASE.  SHORTLY AFTER THE DEATH OF THE
MOTHER, STANLEY TURNED THESE TWO CHILDREN OVER TO THE CARE OF A MR. AND
MRS. NESS; HE TOOK NO ACTION TO GAIN RECOGNITION OF HIMSELF AS A
FATHER, THROUGH ADOPTION, OR AS A LEGAL CUSTODIAN, THROUGH A
GUARDIANSHIP PROCEEDING.  EVENTUALLY IT CAME TO THE ATTENTION OF THE
STATE THAT THERE WAS NO LIVING ADULT WHO HAD ANY LEGALLY ENFORCEABLE
OBLIGATION FOR THE CARE AND SUPPORT OF THE CHILDREN; IT WAS ONLY THEN
THAT THE DEPENDENCY PROCEEDING HERE UNDER REVIEW TOOK PLACE AND THAT
STANLEY MADE HIMSELF KNOWN TO THE JUVENILE COURT IN CONNECTION WITH
THESE TWO CHILDREN.  /5/  EVEN THEN, HOWEVER, STANLEY DID NOT ASK TO BE
CHARGED WITH THE LEGAL RESPONSIBILITY FOR THE CHILDREN.  HE ASKED ONLY
THAT SUCH LEGAL RESPONSIBILITY BE GIVEN TO NO ONE ELSE.  HE SEEMED, IN
PARTICULAR, TO BE CONCERNED WITH THE LOSS OF THE WELFARE PAYMENTS HE
WOULD SUFFER AS A RESULT OF THE DESIGNATION OF OTHERS AS GUARDIANS OF
THE CHILDREN. 

NOT ONLY, THEN, DO I SEE NO GROUND FOR HOLDING THAT ILLINOIS'
STATUTORY DEFINITION OF "PARENTS" ON ITS FACE VIOLATES THE EQUAL
PROTECTION CLAUSE; I SEE NO GROUND FOR HOLDING THAT ANY CONSTITUTIONAL
RIGHT OF STANLEY HAS BEEN DENIED IN THE APPLICATION OF THAT STATUTORY
DEFINITION IN THE CASE AT BAR. 

AS MR. JUSTICE FRANKFURTER ONCE OBSERVED, "INVALIDATING LEGISLATION
IS SERIOUS BUSINESS . . . . "  MOREY V. DOUD, 354 U.S. 457, 474 (1957)
(DISSENTING OPINION).  THE COURT TODAY PURSUES THAT SERIOUS BUSINESS BY
EXPANDING ITS LEGITIMATE JURISDICTION BEYOND WHAT I READ IN 28 U.S.C.
1257 AS THE PERMISSIBLE LIMITS CONTEMPLATED BY CONGRESS.  IN DOING SO,
IT INVALIDATES A PROVISION OF CRITICAL IMPORTANCE TO ILLINOIS CAREFULLY
DRAWN STATUTORY SYSTEM GOVERNING FAMILY RELATIONSHIPS AND THE WELFARE
OF THE MINOR CHILDREN OF THE STATE.  AND IN SO INVALIDATING THAT
PROVISION, IT ASCRIBES TO THAT STATUTORY SYSTEM A PRESUMPTION THAT IS
SIMPLY NOT THERE AND EMBARKS ON A NOVEL CONCEPT OF THE NATURAL LAW FOR
UNWED FATHERS THAT COULD WELL HAVE STRANGE BOUNDARIES AS YET
UNDISCERNIBLE. 

/1/  IN REACHING OUT TO FIND A DUE PROCESS ISSUE IN THIS CASE, THE
COURT SEEMS TO HAVE MISAPPREHENDED THE ENTIRE THRUST OF THE STATE'S
ARGUMENT.  WHEN EXPLAINING AT ORAL ARGUMENT WHY ILLINOIS DOES NOT
RECOGNIZE THE UNWED FATHER, COUNSEL FOR THE STATE PRESENTED TWO BASIS
JUSTIFICATIONS FOR THE STATUTORY DEFINITION OF "PARENTS" HERE AT
ISSUE.  SEE TR. OF ORAL ARG. 25-26.  FIRST, COUNSEL NOTED THAT IN THE
CASE OF A MARRIED COUPLE TO WHOM A LEGITIMATE CHILD IS BORN, THE TWO
BIOLOGICAL PARENTS HAVE ALREADY "SIGNIFIED THEIR WILLINGNESS TO WORK
TOGETHER" IN CARING FOR THE CHILD BY ENTERING INTO THE MARRIAGE
CONTRACT; IT IS MANIFESTLY REASONABLE, THEREFORE, THAT BOTH OF THEM BE
RECOGNIZED AS LEGAL PARENTS WITH RIGHTS AND RESPONSIBILITIES IN
CONNECTION WITH THE CHILD.  THERE HAS BEEN NO LEGALLY COGNIZABLE
SIGNIFICATION OF SUCH WILLINGNESS ON THE PART OF UNWED PARENTS,
HOWEVER, AND "THE MALE AND FEMALE . . . MAY OR MAY NOT BE WILLING TO
WORK TOGETHER TOWARDS THE COMMON END OF CHILD REARING."  TO PROVIDE
LEGAL RECOGNITION TO BOTH OF THEM AS "PARENTS" WOULD OFTEN BE "TO
CREATE TWO CONFLICTING PARTIES COMPETING FOR LEGAL CONTROL OF THE
CHILD."     THE SECOND BASIC JUSTIFICATION URGED UPON US BY COUNSEL FOR
THE STATE WAS THAT, IN ORDER TO PROVIDE FOR THE CHILD'S WELFARE, "IT IS
NECESSARY TO IMPOSE UPON AT LEAST ONE OF THE PARTIES LEGAL
RESPONSIBILITY FOR THE WELFARE OF (THE CHILD), AND SINCE NECESSARILY
THE FEMALE IS PRESENT AT THE BIRTH OF THE CHILD AND IDENTIFIABLE AS THE
MOTHER," THE STATE HAS SELECTED THE UNWED MOTHER, RATHER THAN THE UNWED
FATHER, AS THE BIOLOGICAL PARENT WITH THAT LEGAL RESPONSIBILITY. 

IT WAS SUGGESTED TO COUNSEL DURING AN ENSUING COLLOQUY WITH THE
BENCH THAT IDENTIFICATION SEEMED TO PRESENT NO INSUPERABLE PROBLEM IN
STANLEY'S CASE AND THAT, ALTHOUGH STANLEY HAD EXPRESSED AN INTEREST IN
PARTICIPATING IN THE REARING OF THE CHILDREN, "ILLINOIS WON'T LET
HIM."  COUNSEL REPLIED THAT, ON THE CONTRARY, "ILLINOIS ENCOURAGES HIM
TO DO SO IF HE WILL ACCEPT THE LEGAL RESPONSIBILITY FOR THOSE CHILDREN
BY A FORMAL PROCEEDING COMPARABLE TO THE MARRIAGE CEREMONY, IN WHICH HE
IS EVIDENCING THROUGH A JUDICIAL PROCEEDING HIS DESIRE TO ACCEPT LEGAL
RESPONSIBILITY FOR THE CHILDREN."  STANLEY, HOWEVER, "DID NOT ASK FOR
CUSTODY.  HE DID NOT ASK FOR LEGAL RESPONSIBILITY.  HE ONLY OBJECTED TO
SOMEONE (ELSE) HAVING LEGAL CONTROL OVER THE CHILDREN."  TR. OF ORAL
ARG. 38, 39-40. 

/2/  THE POSITION THAT STANLEY TOOK AT THE DEPENDENCY PROCEEDING WAS
NOT WITHOUT AMBIGUITY.  SHORTLY AFTER THE MOTHER'S DEATH, HE PLACED THE
CHILDREN IN THE CARE OF MR. AND MRS. NESS, WHO TOOK THE CHILDREN INTO
THEIR HOME.  THE RECORD IS SILENT AS TO WHETHER THE NESS HOUSEHOLD WAS
AN APPROVED FOSTER HOME.  THROUGH STANLEY'S ACT, THEN, THE NESSES WERE
ALREADY THE ACTUAL CUSTODIANS OF THE CHILDREN.  AT THE DEPENDENCY
PROCEEDING, HE RESISTED ONLY THE COURT'S DESIGNATION OF THE NESSES AS
THE LEGAL CUSTODIANS; HE DID NOT CHALLENGE THEIR SUITABILITY FOR THAT
ROLE, NOR DID HE SEEK FOR HIMSELF EITHER THAT ROLE OR ANY OTHER ROLE
THAT WOULD HAVE IMPOSED LEGAL RESPONSIBILITY UPON HIM.  HAD HE
PREVAILED, OF COURSE, THE STATUS QUO WOULD HAVE OBTAINED:  THE NESSES
WOULD HAVE CONTINUED TO PLAY THE ROLE OF ACTUAL CUSTODIANS UNTIL EITHER
THEY OR STANLEY ACTED TO ALTER THE INFORMAL ARRANGEMENT, AND THERE
WOULD STILL HAVE BEEN NO LIVING ADULT WITH ANY LEGALLY ENFORCEABLE
OBLIGATION FOR THE CARE AND SUPPORT OF THE INFANT CHILDREN. 

/3/  THE COURT SEEMS AT TIMES TO IGNORE THIS STATUTORY DEFINITION OF
"PARENTS," EVEN THOUGH IT IS PRECISELY THAT DEFINITION ITSELF WHOSE
CONSTITUTIONALITY HAS BEEN BROUGHT INTO ISSUE BY STANLEY.  IN
PREPARATION FOR FINDING A PURPORTED SIMILARITY BETWEEN THIS CASE AND
BELL V. BURSON, 402 U.S. 535 (1971), THE COURT QUOTES THE LEGISLATIVELY
DECLARED AIMS OF THE JUVENILE COURT ACT TO "STRENGTHEN THE MINOR'S
FAMILY TIES WHENEVER POSSIBLE, REMOVING HIM FROM THE CUSTODY OF HIS
PARENTS ONLY WHEN HIS WELFARE OR SAFETY OR THE PROTECTION OF THE PUBLIC
CANNOT BE ADEQUATELY SAFEGUARDED WITHOUT REMOVAL."  THE COURT THEN GOES
ON TO FIND A "SELF-CONTRADICTION" BETWEEN THAT STATED AIM AND THE ACT'S
NONRECOGNITION OF UNWED FATHERS.  ANTE, AT 653.  THERE IS, OF COURSE,
NO SUCH CONTRADICTION.  THE WORD "PARENT" IN THE STATMENT OF
LEGISLATIVE PURPOSE OBVIOUSLY HAS THE MEANING GIVEN TO IT BY THE
DEFINITIONAL PROVISION OF THE ACT. 

/4/  WHEN THE MARRIAGE BETWEEN THE PARENTS OF A LEGITIMATE CHILD IS
DISSOLVED BY DIVORCE OR SEPARATION, THE STATE, OF COURSE, NORMALLY
AWARDS CUSTODY OF THE CHILD TO ONE PARENT OR THE OTHER.  THIS IS
CONSIDERED NECESSARY FOR THE CHILD'S WELFARE, SINCE THE PARENTS ARE NO
LONGER LEGALLY BOUND TOGETHER.  THE UNMARRIED PARENTS OF AN
ILLEGITIMATE CHILD ARE LIKEWISE NOT LEGALLY BOUND TOGETHER.  THUS, EVEN
IF ILLINOIS DID RECOGNIZE THE PARENTHOOD OF BOTH THE MOTHER AND FATHER
OF AN ILLEGITIMATE CHILD, IT WOULD, FOR CONSISTENCY WITH ITS PRACTICE
IN DIVORCE PROCEEDINGS, BE CALLED UPON TO AWARD CUSTODY TO ONE OR THE
OTHER OF THEM, AT LEAST ONCE IT HAD BY SOME MEANS ASCERTAINED THE
IDENTITY OF THE FATHER. 

/5/  AS THE MAJORITY NOTES, ANTE, AT 646, JOAN STANLEY GAVE BIRTH TO
THREE CHILDREN DURING THE 18 YEARS PETER STANLEY WAS LIVING
"INTERMITTENTLY" WITH HER.  AT ORAL ARGUMENT, WE WERE TOLD BY STANLEY'S
COUNSEL THAT THE OLDEST OF THESE THREE CHILDREN HAD PREVIOUSLY BEEN
DECLARED A WARD OF THE COURT PURSUANT TO A NEGLECT PROCEEDING THAT WAS
"PROVEN AGAINST" STANLEY AT A TIME, APPARENTLY, WHEN THE JUVENILE COURT
OFFICIALS WERE UNDER THE ERRONEOUS IMPRESSION THAT PETER AND JOAN
STANLEY HAD BEEN MARRIED.  TR. OF ORAL ARG. 19. 

PATRICK T. MURPHY ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

MORTON E. FRIEDMAN, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, AND JOEL M. FLAUM, FIRST ASSISTANT ATTORNEY GENERAL. 

JONATHAN WEISS AND E. JUDSON JENNINGS FILED A BRIEF FOR THE CENTER
ON SOCIAL WELFARE POLICY AND LAW AS AMICUS CURIAE URGING REVERSAL. 

CALVIN SAWYIER AND RICHARD L. MANDEL FILED A BRIEF FOR THE CHILD
CARE ASSOCIATION OF ILLINOIS, INC., AS AMICUS CURIAE. 
..END :






CARTER V. STANTON, 406 U.S. 669 


       CARTER ET AL. V. STANTON, DIRECTOR, MARION COUNTY DEPARTMENT

           OF PUBLIC WELFARE, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

     SOUTHERN DISTRICT OF INDIANA

        NO. 70-5082.  ARGUED NOVEMBER 8, 1971-- DECIDED APRIL 3,

           1972 


APPELLANTS' CHALLENGE TO THE INDIANA WELFARE REGULATION THAT PROVIDES
THAT A PERSON WHO SEEKS ASSISTANCE DUE TO SEPARATION OR THE DESERTION
OF A SPOUSE IS NOT ENTITLED TO AID UNTIL THE SPOUSE HAS BEEN
CONTINUOUSLY ABSENT FOR AT LEAST SIX MONTHS, UNLESS THERE ARE
EXCEPTIONAL CIRCUMSTANCES OF NEED, WAS DISMISSED FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES, AND ALTERNATIVELY ON THE GROUNDS OF LACK OF
JURISDICTION AND FAILURE OF THE PLEADINGS TO PRESENT A SUBSTANTIAL
FEDERAL QUESTION.  HELD:  THE DISTRICT COURT PLAINLY HAD JURISDICTION,
AND EXHAUSTION IS NOT REQUIRED IN THE CIRCUMSTANCES OF THIS CASE. 
DAMICO V. CALIFORNIA, 389 U.S. 416.  IF THAT COURT'S CHARACTERIZATION
OF THE FEDERAL QUESTION AS INSUBSTANTIAL WAS BASED ON THE FACE OF THE
COMPLAINT, IT WAS ERROR; IF THE COURT TREATED THE MOTION TO DISMISS AS
ONE FOR THE SUMMARY JUDGMENT, ITS ORDER IS UNILLUMINATING AS TO THE
RELEVANT FACTS OR THE APPLICABLE LAW, AND WAS IMPROPERLY ENTERED. 

VACATED AND REMANDED. 

PER CURIAM. 

APPELLANTS ARE WOMEN WHO CONTEND THAT AN INDIANA WELFARE REGULATION
GOVERNING ELIGIBILITY FOR STATE AND FEDERAL AID TO DEPENDENT CHILDREN
CONTRAVENES THE FOURTEENTH AMENDMENT AND THE SOCIAL SECURITY ACT, 49
STAT. 627, AS AMENDED, 42 U.S.C. 602(A)(10).  THE REGULATION PROVIDES
THAT A PERSON WHO SEEKS ASSISTANCE DUE TO SEPARATION OR THE DESERTION
OF A SPOUSE IS NOT ENTITLED TO AID UNTIL THE SPOUSE HAS BEEN
CONTINUOUSLY ABSENT FOR AT LEAST SIX MONTHS, UNLESS THERE ARE
EXCEPTIONAL CIRCUMSTANCES OF NEED.  BURNS IND. ADMIN. RULES & REGS. (52
1001)-2 (1967).  APPELLANTS BROUGHT THIS ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, BASING
JURISDICTION ON 42 U.S.C. 1983 AND 28 U.S.C. 1343, AND SEEKING BOTH
DECLARATORY AND INJUNCTIVE RELIEF.  A THREE-JUDGE COURT WAS CONVENED
PURSUANT TO 28 U.S.C. 2281.  AFTER A "PRELIMINARY HEARING ON
DEFENDANTS'" MOTION TO DISMISS "AT WHICH THE COURT" RECEIVED EVIDENCE
UPON WHICH TO RESOLVE THE MATTER, THE COURT DISMISSED THE COMPLAINT ON
THE GROUND THAT NONE OF THE CLAIMANTS HAD EXERCISED HER RIGHT UNDER
INDIANA LAW TO APPEAL FROM A COUNTY DECISION DENYING WELFARE
ASSISTANCE, BURNS IND. ADMIN. RULES & REGS. (52-1211)-1 (SUPP. 1970),
AND THEREFORE APPELLANTS HAD FAILED TO EXHAUST ADMINISTRATIVE
REMEDIES.  IN THE ALTERNATIVE, THE COURT HELD THAT THE PLEADINGS DID
NOT PRESENT A SUBSTANTIAL FEDERAL QUESTION AND THAT THE COURT LACKED
JURISDICTION UNDER 42 U.S.C. 1983 AND 28 U.S.C. 2201, 2202.  CARTER V.
STANTON, NO. IP 70-C-124 (SD IND., DEC. 11, 1970).  THIS DIRECT APPEAL
FOLLOWED AND WE NOTED PROBABLE JURISDICTION.  402 U.S. 994 (1971). 

CONTRARY TO THE STATE'S VIEW, OUR JURISDICTION OF THIS APPEAL UNDER
28 U.S.C. 1253 IS SATISFACTORILY ESTABLISHED.  SULLIVAN V. ALABAMA
STATE BAR, 394 U.S. 812, AFF'G 295 F.SUPP.  1216 (MD ALA. 1969);
WHITNEY STORES, INC. V. SUMMERFORD, 393 U.S. 9, AFF'G 280 F.SUPP.  406
(SC 1968).  ALSO, THE DISTRICT COURT PLAINLY HAD JURISDICTION OF THIS
CASE PURSUANT TO 42 U.S.C. 1983 AND 28 U.S.C. 1343.  DAMICO V.
CALIFORNIA, 389 U.S. 416 (1967).  DAMICO, AN INDISTINGUISHABLE CASE,
LIKEWISE ESTABLISHES THAT EXHAUSTION IS NOT REQUIRED IN CIRCUMSTANCES
SUCH AS THOSE PRESENTED HERE.  CF; MCNEESE V. BOARD OF EDUCATION, 373
U.S. 668 (1963); MONROE V. PAPE, 365 U.S. 167 (1961). 

FINALLY, IF THE COURT'S CHARACTERIZATION OF THE FEDERAL QUESTION
PRESENTED AS INSUBSTANTIAL WAS BASED ON THE FACE OF THE COMPLAINT, AS
IT SEEMS TO HAVE BEEN, IT WAS ERROR.  CF. DANDRIDGE V. WILLIAMS, 397
U.S. 471 (1970); SHAPIRO V. THOMPSON, 394 U.S. 618 (1969); DAMICO V.
CALIFORNIA, SUPRA.  BUT IT APPEARS THAT AT THE HEARING ON THE MOTION TO
DISMISS, WHICH WAS BASED IN PART ON THE ASSERTED FAILURE "TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED" (APP. 19), MATTERS OUTSIDE THE
PLEADINGS WERE PRESENTED AND NOT EXCLUDED BY THE COURT.  THE COURT WAS
THEREFORE REQUIRED BY RULE 12(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE TO TREAT THE MOTION TO DISMISS AS ONE FOR SUMMARY JUDGMENT
AND TO DISPOSE OF IT AS PROVIDED IN RULE 56.  UNDER RULE 56, SUMMARY
JUDGMENT CANNOT BE GRANTED UNLESS THERE IS NO GENUINE ISSUE AS TO ANY
MATERIAL FACT AND THE MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER
OF LAW.  IF THIS IS THE COURSE THE DISTRICT COURT FOLLOWED, ITS ORDER
IS OPAQUE AND UNILLUMINATING AS TO EITHER THE RELEVANT FACTS OR THE LAW
WITH RESPECT TO THE MERITS OF APPELLANTS' CLAIM.  IN THIS POSTURE OF
THE CASE, WE ARE UNCONVINCED THAT SUMMARY JUDGMENT WAS PROPERLY
ENTERED.  THE JUDGMENT OF THE DISTRICT COURT IS THEREFORE VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

  SO ORDERED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS. 

I AGREE THAT BOTH THIS COURT AND THE DISTRICT COURT HAVE
JURISDICTION TO ENTERTAIN THIS CASE AND THAT THE APPELLANTS WERE NOT
REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE LAUNCHING THEIR
CHALLENGE.  BUT, ALTHOUGH THE DISTRICT COURT SHOULD HAVE MADE MORE
COMPLETE FINDINGS OF FACTS AND CONCLUSIONS OF LAW, I WOULD NOT REMAND
SIMPLY ON THIS SCORE BUT WOULD HOLD THAT THE APPELLANTS ARE ENTITLED TO
JUDGMENT. 

THE PROBLEM IS SIMPLE AND SHOULD BE DISPOSED OF HERE. 

THE FEDERAL ACT DEFINES A "DEPENDENT CHILD" AS A "NEEDY CHILD . . .
WHO HAS BEEN DEPRIVED OF PARENTAL SUPPORT OR CARE BY REASON OF . . .
CONTINUED ABSENCE FROM THE HOME."  /1/  INDIANA BY ITS BOARD OF PUBLIC
WELFARE HAS ADOPTED THE FEDERAL DEFINITION OF "NEEDY CHILD."  /2/ 

THE TERM "CONTINUED ABSENCE FROM THE HOME" IS NOT DEFINED IN THE
FEDERAL ACT, THOUGH HEW RECOMMENDS "THAT NO PERIOD OF TIME BE SPECIFIED
AS A BASIS FOR ESTABLISHING CONTINUED ABSENCE AS AN ELIGIBILITY
FACTOR."  /5/  INDIANA, HOWEVER, HAS ESTABLISHED BY RULE A DEFINITION
OF "CONTINUED ABSENCE" IN CASE OF "DESERTION OR SEPARATION."  IN THOSE
TWO INSTANCES IT MAKES "CONTINUED ABSENCE" MEAN THAT "THE ABSENCE SHALL
HAVE BEEN CONTINUOUS" FOR AT LEAST SIX MONTHS, /4/  EXCEPT WHEN THE
DEPARTMENT OF WELFARE FINDS THERE ARE "EXCEPTIONAL CIRCUMSTANCES OF
NEED." 

A DEPENDENT CHILD GETS AID IMMEDIATELY AND CONTINUOUSLY IN CASE THE
PARENT IS INCARCERATED OR IN CASE THE PARENT IS INDUCTED INTO THE ARMED
SERVICES.  THE SIX-MONTH RULE CREATES A SEPARATE CLASS OF NEEDY
CHILDREN WHO BY THE FEDERAL STANDARD MAY BE AS "NEEDY" AS THOSE IN THE
OTHER TWO CATEGORIES. 

THE FEDERAL ACT DIRECTS THAT "AID TO FAMILIES WITH DEPENDENT
CHILDREN SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE
INDIVIDUALS."  /5/  THE FEDERAL REGULATION REQUIRES DECISIONS ON
APPLICATIONS TO BE MADE "PROMPTLY" AND "NOT IN EXCESS OF" 30 DAYS AND
THAT THE ASSISTANCE CHECK OR NOTIFICATION OF DENIAL BE MAILED WITHIN
THAT PERIOD.  /6/  AS NOTED, THE FEDERAL ACT CONTAINS NO WAITING PERIOD
TO ESTABLISH "CONTINUED ABSENCE."  AND THE HEW HANDBOOK, ALREADY
REFERRED TO, /7/ STATES AS RESPECT "CONTINUED ABSENCE" THAT "(A) CHILD
COMES WITHIN THIS INTERPRETATION IF FOR ANY REASON HIS PARENT IS
ABSENT."  /8/ 

HERE, AS IN CALIFORNIA HUMAN RESOURCES DEPT. V. JAVA, 402 U.S. 121,
135, THE STATE'S PROGRAM "TENDS TO FRUSTRATE" THE SOCIAL SECURITY ACT. 
KING V. SMITH, 392 U.S. 309, "ESTABLISHES THAT, AT LEAST IN THE ABSENCE
OF CONGRESSIONAL AUTHORIZATION FOR THE EXCLUSION CLEARLY EVIDENCED FROM
THE SOCIAL SECURITY ACT OR ITS LEGISLATIVE HISTORY, A STATE ELIGIBILITY
STANDARD THAT EXCLUDES PERSONS ELIGIBLE FOR ASSISTANCE UNDER FEDERAL
AFDC STANDARDS VIOLATES THE SOCIAL SECURITY ACT AND IS THEREFORE
INVALID UNDER THE SUPREMACY CLAUSE."  TOWNSEND V. SWANK, 404 U.S. 282,
286.  WHILE A STATE HAS A LEGITIMATE INTEREST IN PREVENTING FRAUD,
THERE ARE, AS WE SAID IN SHAPIRO V. THOMPSON, 394 U.S. 618, 637, "LESS
DRASTIC MEANS" AVAILABLE "TO MINIMIZE THAT HAZARD."  RATHER THAN
REMANDING FOR A LOWER COURT DETERMINATION OF THE LAW OF THE CASE, THE
MERITS OUGHT TO BE DECIDED NOW INASMUCH AS (A) THE FACTS ARE
ESSENTIALLY UNDISPUTED, (B) THE APPELLANTS' CLAIM BASED ON THE FEDERAL
ACT IS PLAINLY CORRECT, AND (C) FURTHER LITIGATION WOULD WORK A
HARDSHIP UPON WELFARE RECIPIENTS AFFECTED BY THE INDIANA RULE.  SEE
GENERALLY NOTE, INDIVIDUALIZED CRIMINAL JUSTICE IN THE SUPREME COURT:
A STUDY OF DISPOSITIONAL DECISION MAKING, 81 HARV.L.REV.  1260 (1968);
BELL, APPELLATE COURT OPINIONS AND THE REMAND PROCESS, 2 GA.L.REV. 
526, 536 (1968). 

THE INDIANA REGULATION SO PLAINLY COLLIDES WITH THE FEDERAL ACT THAT
I WOULD END THIS FRIVOLOUS DEFENSE TO THIS WELFARE LITIGATION BY
DECIDING THE MERITS AND REVERSING BY REASON OF THE SUPREMACY CLAUSE. 

/1/  49 STAT. 629, AS AMENDED, 42 U.S.C. 606(A). 

/2/  IND. STATE BD. OF PUB. WELFARE REG. 2-400(A). 

/3/  DEPT. OF HEALTH, EDUCATION & WELFARE HANDBOOK OF PUBLIC
ASSISTANCE ADMINISTRATION, PT. IV, SEC. 3422.5 (1968). 

/4/  BURNS, IND. ADMIN. RULES & REGS. (52-1001)-2 (1967):  "WHEN THE
CONTINUED ABSENCE IS DUE TO DESERTION OR SEPARATION, THE ABSENCE SHALL
HAVE BEEN CONTINUOUS FOR A PERIOD OF AT LEAST SIX (6) MONTHS PRIOR TO
THE DATE OF APPLICATION FOR ASSISTANCE TO DEPENDENT CHILDREN; EXCEPT
THAT UNDER EXCEPTIONAL CIRCUMSTANCES OF NEED AND WHERE IT IS DETERMINED
THAT THE ABSENCE OF A PARENT IS ACTUAL AND BONA FIDE AN APPLICATION MAY
BE FILED AND A CHILD MAY BE CONSIDERED IMMEDIATELY ELIGIBLE UPON A
SPECIAL FINDING OF THE COUNTY DEPARTMENT OF PUBLIC WELFARE SETTING
FORTH THE FACTS AND REASONS FOR SUCH ACTION." 

/5/ 42 U.S.C. 602(A)(10). 

/6/  45 CFR 206.10(3), 36 FED.REG.  3864. 

/7/  N. 3, SUPRA. 

/8/  PART IV, SEC. 3422.2, OF THE HANDBOOK PROVIDES: 

"CONTINUED ABSENCE OF THE PARENT FROM THE HOME CONSTITUTES THE
REASON FOR DEPRIVATION OF PARENTAL SUPPORT OR CARE UNDER THE FOLLOWING
CIRCUMSTANCES: 

"1.  WHEN THE PARENT IS OUT OF THE HOME; 

"2.  WHEN THE NATURE OF THE ABSENCE IS SUCH AS EITHER TO INTERRUPT
OR TO TERMINATE THE PARENT'S FUNCTIONING AS A PROVIDER OF MAINTENANCE,
PHYSICAL CARE, OR GUIDANCE FOR THE CHILD; AND 

"3.  WHEN THE KNOWN OR INDEFINITE DURATION OF THE ABSENCE PRECLUDES
COUNTING ON THE PARENT'S PERFORMANCE OF HIS FUNCTION IN PLANNING FOR
THE PRESENT SUPPORT OR CARE OF THE CHILD. 

"A CHILD COMES WITHIN THIS INTERPRETATION IF FOR ANY REASON HIS
PARENT IS ABSENT, AND THIS ABSENCE INTERFERES WITH THE CHILD'S
RECEIVING MAINTENANCE, PHYSICAL CARE, OR GUIDANCE FROM HIS PARENT, AND
PRECLUDES THE PARENT'S BEING COUNTED ON FOR SUPPORT OR CARE OF THE
CHILD.  FOR EXAMPLE:  THE CHILD'S FATHER HAS LEFT HOME, WITHOUT
FOREWARNING HIS FAMILY, AND THE MOTHER REALLY DOES NOT KNOW WHY HE LEFT
HOME, NOR WHEN OR WHETHER HE WILL RETURN." 

JON D. NOLAND ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE JOHN T. MANNING AND DAVID F. SHADEL. 

ROBERT W. GEDDES ARGUED THE CAUSE FOR APPELLEE STANTON.  WITH HIM ON
THE BRIEF WERE HAROLD W. JONES AND CARL J. MEYER.  MARK PEDEN, DEPUTY
ATTORNEY GENERAL OF INDIANA, ARGUED THE CAUSE FOR APPELLEE STERRETT. 
WITH HIM ON THE BRIEF WERE THEODORE L. SENDAK, ATTORNEY GENERAL,
WILLIAM F. THOMPSON, ASSISTANT ATTORNEY GENERAL, AND WILLIAM F.
HARVEY. 

SOLICITOR GENERAL GRISWOLD AND RICHARD B. STONE FILED A BRIEF FOR
THE UNITED STATES AS AMICUS CURIAE. 
..END :



FORD MOTOR CO. V. UNITED STATES, 405 U.S. 562 


       FORD MOTOR CO. V. UNITED STATES ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF MICHIGAN

        NO. 70-113.  ARGUED NOVEMBER 18, 1971-- DECIDED MARCH 29,

           1972 


IN THIS DIVESTURE ACTION UNDER SEC. 7 OF THE CELLER-KEFAUVER
ANTIMERGER ACT, THE GOVERNMENT CHALLENGED THE ACQUISITION BY APPELLANT,
FORD, THE SECOND LARGEST AUTOMOBILE MANUFACTURER, OF CERTAIN ASSETS OF
ELECTRIC AUTOLITE CO. (AUTOLITE), AN INDEPENDENT MANUFACTURER OF SPARK
PLUGS AND OTHER AUTOMOTIVE PARTS.  THE ACQUISITION INCLUDED THE
AUTOLITE TRADE NAME, AUTOLITE'S ONLY DOMESTIC SPARK PLUG PLANT, AND
EXTENSIVE RIGHTS TO ITS NATIONWIDE DISTRIBUTION ORGANIZATION FOR SPARK
PLUGS AND BATTERIES.  THE BRAND USED IN THE SPARK PLUG REPLACEMENT
MARKET (AFTERMARKET) HAS HISTORICALLY BEEN THE SAME AS THE ORIGINAL
EQUIPMENT (OE) BRAND.  AUTOLITE AND OTHER INDEPENDENTS HAD FURNISHED
MANUFACTURERS WITH OE PLUGS AT OR BELOW COST, SEEKING TO RECOUP THEIR
LOSSES BY PROFITABLE AFTERMARKET SALES.  FORD, WHICH PREVIOUSLY HAD
BOUGHT ALL ITS SPARK PLUGS FROM INDEPENDENTS AND WAS THE LARGEST
PURCHASER FROM THAT SOURCE, MADE THE AUTOLITE ACQUISITION IN 1961 FOR
THE PURPOSE OF PARTICIPATING IN THE AFTERMARKET.  AT ABOUT THAT TIME
GENERAL MOTORS (GM) HAD ABOUT 30% OF THE DOMESTIC SPARK PLUG MARKET. 
AUTOLITE HAD 15%, AND CHAMPION, THE ONLY OTHER MAJOR INDEPENDENT, HAD
50% (WHICH DECLINED TO 40% IN 1964, AND 44% IN 1966).  THE DISTRICT
COURT FOUND THAT THE INDUSTRY'S OLIGOPOLISTIC STRUCTURE ENCOURAGED
MAINTENANCE OF THE OE TIE AND THAT SPARK PLUG MANUFACTURERS, TO THE
EXTENT THAT THEY ARE NOT OWNED BY AUTO MAKERS, WILL COMPETE MORE
VIGOROUSLY FOR PRIVATE BRAND SALES IN THE AFTERMARKET.  THE COURT HELD
THAT THE ACQUISITION OF AUTOLITE VIOLATED SEC. 7 SINCE ITS EFFECT "MAY
BE SUBSTANTIALLY TO LESSEN COMPETITION" IN AUTOMOTIVE SPARK PLUGS
BECAUSE:  (1) "AS BOTH A PRIME CANDIDATE TO MANUFACTURE AND THE MAJOR
CUSTOMER OF THE DOMINANT MEMBER OF THE OLIGOPOLY," FORD'S PRE
ACQUISITION POSITION WAS A MODERATING INFLUENCE ON THE INDEPENDENT
COMPANIES, AND (2) THE ACQUISITION SIGNIFICANTLY FORECLOSED TO
INDEPENDENT SPARK PLUG MANUFACTURERS ACCESS TO THE PURCHASER OF A
SUBSTANTIAL SHARE OF THE TOTAL INDUSTRY OUTPUT.  AFTER HEARINGS, THE
COURT ORDERED THE DIVESTITURE OF THE AUTOLITE PLANT AND TRADE NAME
BECAUSE OF THE INDUSTRY'S OLIGOPOLISTIC STRUCTURE, WHICH ENCOURAGED
MAINTENANCE OF THE OE TIE.  THE COURT STRESSED THAT IT WAS IN THE SELF
INTEREST OF THE OE SPARK PLUG MANUFACTURERS TO DISCOURAGE PRIVATE-BRAND
SALES BUT NOTED THAT CHANGES IN MARKETING METHODS INDICATED A
SUBSTANTIAL GROWTH IN THE PRIVATE-BRAND SECTOR OF THE SPARK PLUG
MARKET, WHICH, IF ALLOWED TO DEVELOP WITHOUT UNLAWFUL RESTRAINT, MAY
ACCOUNT FOR 17% OF THE TOTAL AFTERMARKET BY 1980.  ADDITIONALLY, THE
COURT ENJOINED FORD FOR 10 YEARS FROM MANUFACTURING SPARK PLUGS;
ORDERED IT FOR FIVE YEARS TO BUY ONE-HALF ITS ANNUAL REQUIREMENTS FROM
THE DIVESTED PLANT UNDER THE "AUTOLITE" NAME, DURING WHICH TIME IT WAS
PROHIBITED FROM USING ITS OWN NAME ON SPARK PLUGS; AND FOR 10 YEARS
ORDERED IT TO CONTINUE ITS POLICY OF SELLING TO ITS DEALERS AT PRICES
NO LESS THAN ITS PREVAILING MINIMUM SUGGESTED JOBBERS' SELLING PRICE. 
IN CONTESTING DIVESTITURE, FORD ARGUED THAT UNDER ITS OWNERSHIP
AUTOLITE BECAME A MORE EFFECTIVE COMPETITOR AGAINST CHAMPION AND GM
THAN IT HAD BEEN AS AN INDEPENDENT AND THAT OTHER BENEFITS RESULTED
FROM THE ACQUISITION.  HELD: 

1.  THE DISTRICT COURT CORRECTLY HELD THAT THE EFFECT OF FORD'S
ACQUISITION OF THE AUTOLITE SPARK PLUG ASSETS AND TRADE NAME MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION IN THE SPARK PLUG BUSINESS AND THUS
TO VIOLATE SEC. 7 OF THE CELLER-KEFAUVER ANTIMERGER ACT; AND THAT THE
ALLEGED BENEFICIAL EFFECTS OF THE MERGER DID NOT SAVE IT FROM
ILLEGALITY UNDER THAT PROVISION.  UNITED STATES V. PHILADELPHIA
NATIONAL BANK, 374 U.S. 321.  PP. 569-571. 

2.  THE RELIEF ORDERED BY THE DISTRICT COURT WAS PROPER.  PP. 571
578. 

(A) DIVESTITURE IS NECESSARY TO RESTORE THE PRE-ACQUISITION MARKET
STRUCTURE, IN WHICH FORD WAS THE LEADING PURCHASER FROM INDEPENDENT
SOURCES, AND IN WHICH A SUBSTANTIAL SEGMENT OF THE MARKET WAS OPEN TO
COMPETITIVE SELLING.  AFTER THE DIVESTITURE, WITH FORD AGAIN AS A
PURCHASER OF SPARK PLUGS, COMPETITIVE PRESSURES FOR ITS BUSINESS WILL
BE GENERATED AND THE ANTI-COMPETITIVE CONSEQUENCES OF ITS ENTRY AS A
MANUFACTURER WILL BE ELIMINATED.  PP. 573-575. 

(B) THE ANCILLARY INJUNCTIVE PROVISIONS ARE NECESSARY TO GIVE THE
DIVESTED PLANT AN OPPORTUNITY TO RE-ESTABLISH ITS COMPETITIVE POSITION
AND TO NURTURE THE COMPETITIVE FORCES AT WORK IN THE MARKETPLACE.  PP.
575-578. 

286 F.SUPP.  407, 315 F.SUPP.  372, AFFIRMED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
WHITE, AND MARSHALL, JJ., JOINED AND IN WHICH (AS TO PART I AND PART OF
PART II) BLACKMUN, J., JOINED.  STEWART, J., FILED AN OPINION
CONCURRING IN THE RESULT, POST, P. 579.  BURGER, C.J., POST, P. 582,
AND BLACKMUN, J., POST, P. 595, FILED OPINIONS CONCURRING IN PART AND
DISSENTING IN PART.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL UNDER SEC. 2 OF THE EXPEDITING ACT, 32 STAT.
823, AS AMENDED, 15 U.S.C. 29, FROM A JUDGMENT OF THE DISTRICT COURT
(286 F.SUPP.  407, 315 F.SUPP.  372), HOLDING THAT FORD MOTOR CO.
(FORD) VIOLATED SEC. 7 OF THE CELLAR-KEFAUVER ANTIMERGER ACT /1/  BY
ACQUIRING CERTAIN ASSETS FROM ELECTRIC AUTOLITE CO. (AUTOLITE).  THE
ASSETS INCLUDED THE AUTOLITE TRADE NAME, AUTOLITE'S ONLY SPARK PLUG
PLANT IN THIS COUNTRY (LOCATED AT NEW FOSTORIA, OHIO), A BATTERY PLANT,
AND EXTENSIVE RIGHTS TO ITS NATIONWIDE DISTRIBUTION ORGANIZATION FOR
SPARK PLUGS AND BATTERIES.  THE PRESENT APPEAL /2/  IS LIMITED TO THAT
PORTION OF THE JUDGMENT RELATING TO SPARK PLUGS AND ORDERING FORD TO
DIVEST THE AUTOLITE NAME AND THE SPARK PLUG PLANT.  THE ANCILLARY
INJUNCTIVE PROVISIONS ARE ALSO HERE FOR REVIEW. 

I 

FORD, THE SECOND-LEADING PRODUCER OF AUTOMOBILES, GENERAL MOTORS,
AND CHRYSLER TOGETHER ACCOUNT FOR 90% OF THE AUTOMOBILE PRODUCTION IN
THIS COUNTRY.  THOUGH FORD MAKES A SUBSTANTIAL PORTION OF ITS PARTS,
PRIOR TO ITS ACQUISITION OF THE ASSETS OF AUTOLITE IT DID NOT MAKE
SPARK PLUGS OR BATTERIES BUT PURCHASED THOSE PARTS FROM INDEPENDENT
COMPANIES. 

THE ORIGINAL EQUIPMENT OF NEW CARS, INSOFAR AS SPARK PLUGS ARE
CONCERNED, IS CONVENIENTLY REFERRED TO AS THE OE TIE.  THE REPLACEMENT
MARKET IS REFERRED TO AS THE AFTERMARKET.  THE INDEPENDENTS, INCLUDING
AUTOLITE, FURNISHED THE AUTO MANUFACTURERS WITH OE PLUGS AT COST OR
LESS, ABOUT SIX CENTS A PLUG, AND THEY CONTINUED TO SELL AT THAT PRICE
EVEN WHEN THEIR COSTS INCREASED THREEFOLD.  THE INDEPENDENTS SOUGHT TO
RECOVER THEIR LOSSES ON OE SALES BY PROFITABLE SALES IN THE AFTERMARKET
WHERE THE REQUIREMENT OF EACH VEHICLE DURING ITS LIFETIME IS ABOUT FIVE
REPLACEMENT PLUG SETS.  BY CUSTOM AND PRACTICE AMONG MECHANICS, THE
AFTERMARKET PLUG IS USUALLY THE SAME BRAND AS THE OE PLUG.  SEE
GENERALLY HANSEN & SMITH, THE CHAMPION CASE:  WHAT IS COMPETITION?, 29
HARV.BUS.REV.  89 (1951). 

FORD WAS ANXIOUS TO PARTICIPATE IN THIS AFTERMARKET AND, AFTER
VARIOUS EFFORTS NOT RELEVANT TO THE PRESENT CASE, CONCLUDED THAT ITS
EFFECTIVE PARTICIPATION IN THE AFTERMARKET REQUIRED "AN ESTABLISHED
DISTRIBUTION SYSTEM WITH A RECOGNIZED BRAND NAME, A FULL LINE OF HIGH
VOLUME SERVICE PARTS, ENGINEERING EXPERIENCE IN REPLACEMENT DESIGNS,
LOW VOLUME PRODUCTION FACILITIES AND EXPERIENCE, AND THE OPPORTUNITY TO
CAPITALIZE ON AN ESTABLISHED CAR POPULATION." 

FORD CONCLUDED IT COULD DEVELOP SUCH A DIVISION OF ITS OWN BUT
DECIDED THAT COURSE WOULD TAKE FROM FIVE TO EIGHT YEARS AND BE MORE
COSTLY THAN AN ACQUISITION.  TO MAKE A LONG STORY SHORT, IT ACQUIRED
CERTAIN ASSETS OF AUTOLITE IN 1961. 

GENERAL MOTORS HAD PREVIOUSLY ENTERED THE SPARK PLUG MANUFACTURING
FIELD, MAKING THE AC BRAND.  THE TWO OTHER MAJOR DOMESTIC PRODUCERS
WERE INDEPENDENTS-- AUTOLITE AND CHAMPION.  WHEN FORD ACQUIRED
AUTOLITE, WHOSE SHARE OF THE DOMESTIC SPARK PLUG MARKET WAS ABOUT 15%,
ONLY ONE MAJOR INDEPENDENT WAS LEFT AND THAT WAS CHAMPION, WHOSE SHARE
OF THE DOMESTIC MARKTET DECLINED FROM JUST UNDER 50% IN 1960 TO JUST
UNDER 40% IN 1964 AND TO ABOUT 33% IN 1966.  AT THE TIME OF THE
ACQUISITION, GENERAL MOTORS' MARKET SHARE WAS ABOUT 30%.  THERE WERE
OTHER SMALL MANUFACTURERS OF SPARK PLUGS BUT THEY HAD NO IMPORTANT
SHARE OF THE MARKET.  /3/ 

THE DISTRICT COURT HELD THAT THE ACQUISITION OF AUTOLITE VIOLATED
SEC. 7 OF THE CELLER-KEFAUVER ANTIMERGER ACT BECAUSE ITS EFFECT "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION."  /4/  IT GAVE TWO REASONS FOR ITS
DECISION. 

FIRST, PRIOR TO 1961 WHEN FORD ACQUIRED AUTOLITE IT HAD A "PERVASIVE
IMPACT ON THE AFTERMARKET," 315 F.SUPP.,AT 375, IN THAT IT WAS A
MODERATING INFLUENCE ON CHAMPION AND ON OTHER COMPANIES DERIVATIVELY. 
IT EXPLAINED THAT REASON AS FOLLOWS: 

"AN INTERESTED FIRM ON THE OUTSIDE HAS A TWOFOLD SIGNIFICANCE.  IT
MAY SOMEDAY GO IN AND SET THE STAGE FOR NOTICEABLE DECONCENTRATION. 
WHILE IT MERELY STAYS NEAR THE EDGE, IT IS A DETERRENT TO CURRENT
COMPETITORS.  UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S. 158 . .
. (1964).  THIS WAS FORD UNIQUELY, AS BOTH A PRIME CANDIDATE TO
MANUFACTURE AND THE MAJOR CUSTOMER OF THE DOMINANT MEMBER OF THE
OLIGOPOLY.  GIVEN THE CHANCE THAT AUTOLITE WOULD HAVE BEEN DOOMED TO
OBLIVION BY DEFENDANT'S GRASS-ROOTS ENTRY, WHICH ALSO WOULD HAVE
DESTROYED FORD'S SOOTHING INFLUENCE OVER REPLACEMENT PRICES, FORD MAY
WELL HAVE BEEN MORE USEFUL AS A POTENTIAL THAN IT WOULD HAVE BEEN AS A
REAL PRODUCER, REGARDLESS HOW IT BEGAN FABRICATION.  HAD FORD TAKEN THE
INTERNAL-EXPANSION ROUTE, THERE WOULD HAVE BEEN NO ILLEGALITY; NOT,
HOWEVER, BECAUSE THE RESULT NECESSARILY WOULD HAVE BEEN COMMENDABLE,
BUT SIMPLY BECAUSE THAT COURSE HAS NOT BEEN PROSCRIBED."  286
F.SUPP.,AT 441.  SEE ALSO FTC V. PROCTER & GAMBLE CO., 386 U.S. 568;
UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S. 158. 

SECOND, THE DISTRICT COURT FOUND THAT THE ACQUISITION MARKED "THE
FORECLOSURE OF FORD AS A PURCHASER OF ABOUT TEN PER CENT OF TOTAL
INDUSTRY OUTPUT."  315 F.SUPP.,AT 375.  THE DISTRICT COURT ADDED: 

     "IN SHORT, FORD'S ENTRY INTO THE SPARK PLUG MARKET BY MEANS OF

  THE ACQUISITION OF THE FACTORY IS FOSTORIA AND THE TRADE NAME

  'AUTOLITE' HAD THE EFFECT OF RAISING THE BARRIERS TO ENTRY INTO

  THAT MARKET AS WELL AS REMOVING ONE OF THE EXISTING RESTRAINTS

UPON THE ACTIONS OF THOSE IN THE BUSINESS OF MANUFACTURING SPARK

  PLUGS. 

     "IT WILL ALSO BE NOTED THAT THE NUMBER OF COMPETITORS IN THE

  SPARK PLUG MANUFACTURING INDUSTRY CLOSELY PARALLELS THE NUMBER OF

  COMPETITORS IN THE AUTOMOBILE MANUFACTURING INDUSTRY AND THE

  BARRIERS TO ENTRY INTO THE AUTO INDUSTRY ARE VIRTUALLY

  INSURMOUNTABLE AT PRESENT AND WILL REMAIN SO FOR THE FORESEEABLE

  FUTURE.  FORD'S ACQUISITION OF THE AUTOLITE ASSETS, PARTICULARLY

 WHEN VIEWED IN THE CONTEXT OF THE ORIGINAL EQUIPMENT (OE) TIE AND

  OF GM'S OWNERSHIP OF AC, HAS THE RESULT OF TRANSMITTING THE

  RIGIDITY OF THE OLIGOPOLISTIC STRUCTURE OF THE AUTOMOBILE

  INDUSTRY TO THE SPARK PLUG INDUSTRY, THUS REDUCING THE CHANCES OF

  FUTURE DECONCENTRATION OF THE SPARK PLUG MARKET BY FORCES AT WORK

  WITHIN THAT MARKET."  IBID.

SEE ALSO FTC V. CONSOLIDATED FOODS CORP., 380 U.S. 592; BROWN SHOE CO.
V. UNITED STATES, 370 U.S. 294; UNITED STATES V. DU PONT & CO., 353
U.S. 586. 

WE SEE NO ANSWER TO THAT CONCLUSION IF THE LETTER AND SPIRIT OF THE
CELLER-KEFAUVER ANTIMERGER ACT /5/  ARE TO BE HONORED.  SEE UNITED
STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 362-363; UNITED
STATES V. PENN-OLIN CHEMICAL CO., 378 U.S.,AT 170-171; BROWN SHOE CO.
V. UNITED STATES, 370 U.S.,AT 311-323. 

IT IS ARGUED, HOWEVER, THAT THE ACQUISITION HAD SOME BENEFICIAL
EFFECT IN MAKING AUTOLITE A MORE VIRGOROUS AND EFFECTIVE COMPETITOR
AGAINST CHAMPION AND GENERAL MOTORS THAN AUTOLITE HAD BEEN AS AN
INDEPENDENT.  BUT WHAT WE SAID IN UNITED STATES V. PHILADELPHIA
NATIONAL BANK, SUPRA, DISPOSES OF THAT ARGUMENT.  A MERGER IS NOT SAVED
FROM ILLEGALITY UNDER SEC. 7, WE SAID, 

"BECAUSE, ON SOME ULTIMATE RECKONING OF SOCIAL OR ECONOMIC DEBITS
AND CREDITS, IT MAY BE DEEMED BENEFICIAL.  A VALUE CHOICE OF SUCH
MAGNITUDE IS BEYOND THE ORDINARY LIMITS OF JUDICIAL COMPETENCE, AND IN
ANY EVENT HAS BEEN MADE FOR US ALREADY, BY CONGRESS WHEN IT ENACTED THE
AMENDED SEC. 7.  CONGRESS DETERMINED TO PRESERVE OUR TRADITIONALLY
COMPETITIVE ECONOMY.  IT THEREFORE PROSCRIBED ANTICOMPETITIVE MERGERS,
THE BENIGN AND THE MALIGNANT ALIKE, FULLY AWARE, WE MUST ASSUME, THAT
SOME PRICE MIGHT HAVE TO BE PAID."  374 U.S.,AT 371. 

FORD ARGUES THAT THE ACQUISITION LEFT THE MARKETPLACE WITH A GREATER
NUMBER OF COMPETITORS.  TO BE SURE, AFTER AUTOLITE SOLD ITS NEW
FOSTORIA PLANT TO FORD, IT CONSTRUCTED ANOTHER IN DECATUR, ALABAMA,
WHICH BY 1964 HAD 1.6% OF THE DOMESTIC BUSINESS.  PRIOR TO THE
ACQUISITION, HOWEVER, THERE WERE ONLY TWO MAJOR INDEPENDENT PRODUCERS
AND ONLY TWO SIGNIFICANT PURCHASERS OF ORIGINAL EQUIPMENT SPARK PLUGS. 
THE ACQUISITION THUS AGGRAVATED AN ALREADY OLIGOPOLISTIC MARKET. 

AS WE INDICATED IN BROWN SHOE CO. V. UNITED STATES, 370 U.S.,AT 323
324: 

"THE PRIMARY VICE OF A VERTICAL MERGER OR OTHER ARRANGEMENT TYING A
CUSTOMER TO A SUPPLIER IS THAT, BY FORECLOSING THE COMPETITORS OF
EITHER PARTY FROM A SEGMENT OF THE MARKET OTHERWISE OPEN TO THEM, THE
ARRANGEMENT MAY ACT AS A 'CLOG ON COMPETITION,'  STANDARD OIL CO. OF
CALIFORNIA V. UNITED STATES, 337 U.S. 293, 314, WHICH 'DEPRIVES) . . .
RIVALS OF A FAIR OPPORTUNITY TO COMPETE.'  H.R. REP. NO. 1191, 81ST
CONG., 1ST SESS. 8.  EVERY EXTENDED VERTICAL ARRANGEMENT BY ITS VERY
NATURE, FOR AT LEAST A TIME, DENIES TO COMPETITORS OF THE SUPPLIER THE
OPPORTUNITY TO COMPETE FOR PART OR ALL OF THE TRADE OF THE CUSTOMER
PARTY TO THE VERTICAL ARRANGEMENT."  MOREOVER, FORD MADE THE
ACQUISITION IN ORDER TO OBTAIN A FOOTHOLD IN THE AFTERMARKET.  ONCE
ESTABLISHED, IT WOULD HAVE EVERY INCENTIVE TO PERPETUATE THE OE TIE AND
THUS MAINTAIN THE VIRTUALLY INSURMOUNTABLE BARRIERS TO ENTRY TO THE
AFTERMARKET. 

        II 

THE MAIN CONTROVERSY HERE HAS BEEN OVER THE NATURE AND DEGREE OF THE
RELIEF TO BE AFFORDED. 

DURING THE YEAR FOLLOWING THE DISTRICT COURT'S FINDING OF A SEC. 7
VIOLATION, THE PARTIES WERE UNABLE TO AGREE UPON APPROPRIATE RELIEF. 
THE DISTRICT COURT THEN HELD NINE DAYS OF HEARINGS ON THE REMEDY AND,
AFTER FULL CONSIDERATION, CONCLUDED THAT DIVESTITURE AND OTHER RELIEF
WERE NECESSARY. 

THE OE TIE, IT HELD, WAS IN MANY RESPECTS THE KEY TO THE SOLUTION
SINCE THE PROPENSITY OF THE MECHANIC IN A SERVICE STATION OR
INDEPENDENT GARAGE IS TO SELECT AS A REPLACEMENT THE SPARK PLUG BRAND
THAT THE MANUFACTURE INSTALLED IN THE CAR.  THE OLIGOPOLISTIC STRUCTURE
OF THE SPARK PLUG MANUFACTURING INDUSTRY ENCOURAGES THE CONTINUANCE OF
THAT SYSTEM.  NEITHER GM NOR AUTOLITE SELLS PRIVATE-LABEL PLUGS.  IT IS
OBVIOUSLY IN THE SELF-INTEREST OF OE PLUG MANUFACTURERS TO DISCOURAGE
PRIVATE-BRAND SALES AND TO ENCOURAGE THE OE TIE.  THERE ARE FINDINGS
THAT THE PRIVATE-BRAND SECTOR OF THE SPARK PLUG MARKET WILL GROW
SUBSTANTIALLY IN THE NEXT DECADE BECAUSE MASS MERCHANDISERS ARE
ENTERING THIS MARKET IN FORCE.  THEY NOT ONLY SELL ALL BRANDS OVER THE
COUNTER BUT ALSO HAVE SERVICE BAYS WHERE MANY CARRY ONLY SPARK PLUGS OF
THEIR OWN PROPRIETARY BRAND.  IT IS ANTICIPATED THAT BY 1980 THE TOTAL
PRIVATE BRAND PORTION OF THE SPARK PLUG MARKET MAY THEN REPRESENT 17%
OF THE TOTAL AFTERMARKET.  THE DISTRICT COURT ADDED: 

"TO THE EXTENT THAT THE SPARK (PLUG) MANUFACTURERS ARE NOT OWNED BY
THE AUTO MAKERS, IT SEEMS CLEAR THAT THEY WILL BE MORE FAVORABLY
DISPOSED TOWARD PRIVATE BRAND SALES AND WILL COMPETE MORE VIGOROUSLY
FOR SUCH SALES.  ALSO, THE POTENTIAL ENTRANT CONTINUES TO HAVE THE
CHANCE TO SELL NOT ONLY THE PRIVATE BRAND CUSTOMER BUT THE AUTO MAKER
AS WELL."  315 F.SUPP.,AT 378. 

ACCORDINGLY THE DECREE 

(1) ENJOINED FORD FOR 10 YEARS FROM MANUFACTURING SPARK PLUGS, 

(2) ORDERED FORD FOR FIVE YEARS TO PURCHASE ONE-HALF OF ITS TOTAL
ANNUAL REQUIREMENT OF SPARK PLUGS FROM THE DIVESTED PLANT UNDER THE
"AUTOLITE" NAME, 

(3) PROHIBITED FORD FOR THE SAME PERIOD FROM USING ITS OWN TRADE
NAMES ON PLUGS, 

(4) PROTECTED NEW FOSTORIA, THE TOWN WHERE THE AUTOLITE PLANT IS
LOCATED, BY REQUIRING FORD TO CONTINUE FOR 10 YEARS ITS POLICY OF
SELLING SPARK PLUGS TO ITS DEALERS AT PRICES NO LESS THAN ITS
PREVAILING MINIMUM SUGGESTED JOBBERS' SELLING PRICE, /6/ 

(5) PROTECTED EMPLOYEES OF THE NEW FOSTORIA PLANT BY ORDERING FORD
TO CONDITION ITS DIVESTITURE SALE ON THE PURCHASER'S ASSUMING THE
EXISTING WAGE AND PENSION OBLIGATIONS AND TO OFFER EMPLOYMENT TO ANY
EMPLOYEE DISPLACED BY A TRANSFER OF NONPLUG OPERATIONS FROM THE
DIVESTED PLANT.  /7/ 

THE RELIEF IN AN ANTITRUST CASE MUST BE "EFFECTIVE TO REDRESS THE
VIOLATIONS" AND "TO RESTORE COMPETITION."  /8/  UNITED STATES V. DU
PONT & CO., 366 U.S. 316, 326.  THE DISTRICT COURT IS CLOTHED WITH
"LARGE DISCRETION" TO FIT THE DECREE TO THE SPECIAL NEEDS OF THE
INDIVIDUAL CASE.  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392, 401; UNITED STATES V. DU PONT & CO., 353 U.S.,AT 608; UNITED
STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 185. 

COMPLETE DIVESTITURE IS PARTICULARLY APPROPRIATE WHERE ASSET OR
STOCK ACQUISITIONS VIOLATE THE ANTITRUST LAWS.  UNITED STATES V. DU
PONT & CO., SUPRA, AT 328-335; UNITED STATES V. CRESCENT AMUSEMENT CO.,
SUPRA, AT 189; SCHINE CHAIN THEATRES V. UNITED STATES, 334 U.S. 110,
128; UNITED STATES V. EL PASO GAS CO., 376 U.S. 651. 

DIVESTITURE IS A START TOWARD RESTORING THE PRE-ACQUISITION
SITUATION.  FORD ONCE AGAIN WILL THEN STAND AS A LARGE INDUSTRY
CUSTOMER AT THE EDGE OF THE MARKET WITH A RENEWED INTEREST IN SECURING
FAVORABLE TERMS FOR ITS SUBSTANTIAL PLUG PURCHASES.  SINCE FORD WILL
AGAIN BE A PURCHASER, IT IS EXPECTED THAT THE COMPETITIVE PRESSURES
THAT EXISTED AMONG OTHER SPARK PLUG PRODUCERS TO SELL TO FORD WILL BE
RE-CREATED.  THE DIVESTITURE SHOULD ALSO ELIMINATE THE ANTICOMPETITIVE
CONSEQUENCES IN THE AFTERMARKET FLOWING FROM THE SECOND LARGEST
AUTOMOBILE MANUFACTURER'S ENTRY THROUGH ACQUISITION INTO THE SPARK PLUG
MANUFACTURING BUSINESS.     THE DIVESTED PLANT IS GIVEN AN INCENTIVE TO
PROVIDE FORD WITH TERMS WHICH WILL NOT ONLY SATISFY THE 50% REQUIREMENT
PROVIDED FOR FIVE YEARS BY THE DECREE BUT WHICH EVEN AFTER THAT PERIOD
MAY KEEP AT LEAST SOME OF FORD'S ONGOING PURCHASES.  THE DIVESTED PLANT
IS AWARDED AT LEAST A FOOTHOLD IN THE LUCRATIVE AFTERMARKET AND IS
PROVIDED AN INCENTIVE TO COMPETE AGGRESSIVELY FOR THAT MARKET. 

AS A RESULT OF THE ACQUISITION OF AUTOLITE, THE STRUCTURE OF THE
SPARK PLUG INDUSTRY CHANGED DRASTICALLY, AS ALREADY NOTED.  FORD, WHICH
BEFORE THE ACQUISITION WAS THE LARGEST PURCHASER OF SPARK PLUGS FROM
THE INDEPENDENT MANUFACTURERS, BECAME A MAJOR MANUFACTURER.  THE RESULT
WAS TO FORECLOSE TO THE REMAINING INDEPENDENT SPARK PLUG MANUFACTURERS
THE SUBSTANTIAL SEGMENT OF THE MARKET PREVIOUSLY OPEN TO COMPETITIVE
SELLING AND TO REMOVE THE SIGNIFICANT PROCOMPETITIVE EFFECTS IN THE
CONCENTRATED SPARK PLUG MARKET THAT RESULTED FROM FORD'S POSITION ON
THE EDGE OF THE MARKET AS A POTENTIAL ENTRANT. 

TO PERMIT FORD TO RETAIN THE AUTOLITE PLANT AND NAME AND TO CONTINUE
MANUFACTURING SPARK PLUGS WOULD PERPETUATE THE ANTICOMPETITIVE EFFECTS
OF THE ACQUISITION.  /9/ 

THE DISTRICT COURT RIGHTLY CONCLUDED THAT ONLY DIVESTITURE WOULD
CORRECT THE CONDITION CAUSED BY THE UNLAWFUL ACQUISITION. 

A WORD SHOULD BE SAID ABOUT THE OTHER INJUNCTIVE PROVISIONS.  THEY
ARE DESIGNED TO GIVE THE DIVESTED PLANT AN OPPORTUNITY TO ESTABLISH ITS
COMPETITIVE POSITION.  THE DIVESTED COMPANY NEEDS TIME SO IT CAN OBTAIN
A FOOTHOLD IN THE INDUSTRY.  THE RELIEF ORDERED SHOULD "CURE THE ILL
EFFECTS OF THE ILLEGAL CONDUCT, AND ASSURE THE PUBLIC FREEDOM FROM ITS
CONTINUANCE," UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76,
88, AND IT NECESSARILY MUST "FIT THE EXIGENCIES OF THE PARTICULAR
CASE."  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.,AT 401. 
MOREOVER, "IT IS WELL SETTLED THAT ONCE THE GOVERNMENT HAS SUCCESSFULLY
BORNE THE CONSIDERABLE BURDEN OF ESTABLISHING A VIOLATION OF LAW, ALL
DOUBTS AS TO THE REMEDY ARE TO BE RESOLVED IN ITS FAVOR."  UNITED
STATES V. DU PONT & CO., 366 U.S.,AT 334. 

FORD CONCEDES THAT "(IF NEW FOSTORIA IS TO SURVIVE, IT MUST FOR THE
FORESEEABLE FUTURE BECOME AND REMAIN THE OE SUPPLIER TO FORD AND SECURE
AND RETAIN THE BENEFITS OF SUCH OE STATUS IN SALES OF REPLACEMENT
PLUGS."  THE ANCILLARY MEASURES ORDERED BY THE DISTRICT COURT ARE
DESIGNED TO ALLOW AUTOLITE TO RE-ESTABLISH ITSELF IN THE OE AND
REPLACEMENT MARKETS AND TO MAINTAIN IT AS A VIABLE COMPETITOR UNTIL
SUCH TIME AS FORCES ALREADY AT WORK WITHIN THE MARKETPLACE WEAKEN THE
OE TIE.  THUS FORD IS PROHIBITED FOR 10 YEARS FROM MANUFACTURING ITS
OWN PLUGS.  /10/  BUT IN FIVE YEARS IT CAN BUY ITS PLUGS FROM ANY
SOURCE AND USE ITS NAME ON OE PLUGS. 

BUT PRIOR TO THAT TIME FORD CANNOT USE OR MARKET PLUGS BEARING THE
FORD TRADE NAME.  IN VIEW OF THE IMPORTANCE OF THE OE TIE, IF FORD WERE
PERMITTED TO USE ITS OWN BRAND NAME DURING THE INTIAL FIVE-YEAR PERIOD,
THERE WOULD BE A TENDENCY TO IMPOSE THE OLIGOPOLISTIC STRUCTURE OF THE
AUTOMOTIVE INDUSTRY ON THE REPLACEMENT PARTS MARKET AND THE DIVESTED
ENTERPRISE MIGHT WELL BE UNABLE TO BECOME A STRONG COMPETITOR.  FORD
ARGUES THAT ANY PROHIBITION AGAINST THE USE OF ITS NAME IS PERMISSIBLE
ONLY WHERE THE NAME DECEIVES OR CONFUSES THE PUBLIC.  /11/  BUT THIS IS
NOT AN UNFAIR COMPETITION CASE.  THE TEMPORARY BAN ON THE USE OF THE
FORD NAME IS DESIGNED TO RESTORE THE PRE-ACQUISITION COMPETITIVE
STRUCTURE OF THE MARKET. 

THE REQUIREMENT THAT, FOR FIVE YEARS, FORD PURCHASE AT LEAST HALF OF
ITS SPARK PLUG REQUIREMENTS FROM THE DIVESTED COMPANY UNDER THE
AUTOLITE LABEL IS TO GIVE THE DIVESTED ENTERPRISE AN ASSURED CUSTOMER
WHILE IT STRUGGLES TO BE RE-ESTABLISHED AS AN EFFECTIVE, INDEPENDENT
COMPETITOR. 

IT IS SUGGESTED, HOWEVER, THAT "THE DISTRICT COURT'S ORDERS ASSURED
THAT FORD COULD NOT BEGIN TO HAVE BRAND NAME SUCCESS IN THE REPLACEMENT
MARKET FOR AT LEAST 10 TO 13 YEARS."  POST, AT 591.  THIS CONCLUSION
DISTORTS THE EFFECT OF THE DISTRICT COURT DECREE AND THE NATURE OF THE
SPARK PLUG INDUSTRY.  FORD'S OWN STUDIES INDICATE THAT IT WOULD TAKE
FIVE TO EIGHT YEARS FOR IT TO DEVELOP A SPARK PLUG DIVISION
INTERNALLY.  A MAJOR PORTION OF THIS PERIOD WOULD BE DEVOTED TO THE
DEVELOPMENT OF A VIABLE POSITION IN THE AFTERMARKET.  THE FIVE-YEAR
PROHIBITION ON THE USE OF ITS OWN NAME AND THE 10-YEAR LIMITATION ON
ITS OWN MANUFACTURING MESH NEATLY TO ALLOW FORD TO ESTABLISH ITSELF IN
THE AFTERMARKET PRIOR TO BECOMING A MANUFACTURER WHILE, AT THE SAME
TIME, GIVING AUTOLITE THE OPPORTUNITY TO RE-ESTABLISH ITSELF BY
PROVIDING A MARKET FOR ITS PRODUCTION.  THUS, THE DISTRICT COURT'S
DECREE DELAYS FOR ONLY TWO TO FIVE YEARS THE DATE ON WHICH FORD MAY
BECOME A MANUFACTURER WITH AN ESTABLISHED SHARE OF THE AFTERMARKET. 
GIVEN THE NORMAL FIVE-TO-EIGHT-YEAR LEAD TIME ON ENTRY THROUGH INTERNAL
EXPANSION, THE DISTRICT COURT'S DECREE DOES NOT SIGNIFICANTLY LESSEN
FORD'S MODERATING INFLUENCE AS A POTENTIAL ENTRANT ON THE EDGE OF THE
MARKET.  MOREOVER, IN LIGHT OF THE INTERIM BENEFITS THIS ANCILLARY
RELIEF WILL HAVE ON THE RE-ESTABLISHMENT OF AUTOLITE AS A VIABLE
COMPETITOR AND OF FORD AS A MAJOR PURCHASER, WE CANNOT AGREE WITH THE
CHARACTERIZATION OF THE RELIEF AS "HARSHLY RESTRICTIVE," POST, AT 595,
OR THE ASSERTION THAT THE DECREE, IN ANY PRACTICAL AND SIGNIFICANT
SENSE, "PROHIBITS) FORD FROM ENTERING THE MARKET THROUGH INTERNAL
EXPANSION."  POST, AT 592. 

ANTITRUST RELIEF SHOULD UNFETTER A MARKET FROM ANTI-COMPETITIVE
CONDUCT AND "PRY OPEN TO COMPETITION A MARKET THAT HAS BEEN CLOSED BY
DEFENDANTS' ILLEGAL RESTRAINTS."  INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S.,AT 401.  THE TEMPORARY ELIMINATION OF FORD AS A
MANUFACTURER OF SPARK PLUGS LOWERS A MAJOR BARRIER TO ENTRY TO THIS
INDUSTRY.  SEE C. KAYSEN & D. TURNER, ANTITRUST POLICY-- AN ECONOMIC
AND LEGAL ANALYSIS 116 (1959).  FORCES NOW AT WORK IN THE MARKETPLACE
MAY BRING ABOUT A DECONCENTRATED MARKET STRUCTURE AND MAY WEAKEN THE
ONEROUS OE TIE.  THE DISTRICT COURT CONCLUDED THAT THE FORCES OF
COMPETITION MUST BE NURTURED TO CORRECT FOR FORD'S ILLEGAL
ACQUISITION.  WE VIEW ITS DECREE AS A MEANS TO THAT END.  /12/ 

THE THOROUGH AND THOUGHTFUL WAY THE DISTRICT COURT CONSIDERED ALL
ASPECTS OF THIS CASE, INCLUDING THE NATURE OF THE RELIEF, IS
COMMENDABLE.  THE DRAFTING OF SUCH A DECREE INVOLVES PREDICTIONS AND
ASSUMPTIONS CONCERNING FUTURE ECONOMIC AND BUSINESS EVENTS.  BOTH
PUBLIC AND PRIVATE INTERESTS ARE INVOLVED; AND WE CONCLUDE THAT THE
DISTRICT COURT WITH A SINGLE EYE TO THE REQUIREMENTS OF SEC. 7 AND THE
VIOLATION THAT WAS CLEARLY ESTABLISHED MADE A REASONABLE JUDGMENT ON
THE MEANS NEEDED TO RESTORE AND ENCOURAGE THE COMPETITION ADVERSELY
AFFECTED BY THE ACQUISITION. 

              AFFIRMED. 

/1/  SECTION 7 PROVIDES IN PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 
38 STAT. 731, AS AMENDED, 64 STAT. 1125, 15 U.S.C. 18. 

/2/  WE NOTED PROBABLE JURISDICTION JUNE 7, 1971.  403 U.S. 903. 

/3/  AUTOLITE DID NOT SELL ALL OF ITS ASSETS TO FORD AND CHANGED THE
NAME OF THE PARTS OF ITS BUSINESS THAT IT RETAINED TO ELTRA CORP. WHICH
IN 1962 BEGAN MANUFACTURING SPARK PLUGS IN DECATUR, ALABAMA, UNDER THE
BRAND NAME PRESTOLITE.  BUT IN 1964 IT HAD ONLY 1.6% OF THE DOMESTIC
BUSINESS.  OTHERS INCLUDED ATLAS, SPONSORED BY STANDARD OIL OF NEW
JERSEY, WITH 1.4% OF THAT BUSINESS, AND RIVERSIDE, SPONSORED BY
MONTGOMERY WARD, WITH 0.6%. AS FURTHER STATED BY THE DISTRICT COURT: 

"MOST OF THE MANUFACTURING FOR THE PRIVATE LABELS AMONG THESE
MARKETERS IS DONE BY ELTRA AND GENERAL BATTERY AND CERAMIC CORPORATION,
THE ONLY PRODUCERS OF ANY STATUTE AT ALL AFTER THE BIG THREE."  286
F.SUPP.  407, 435. 

/4/  THE WORDS WERE SUGGESTED BY THE FEDERAL TRADE COMMISSION WHICH
TOLD THE CONGRESS: 

"UNDER THE SHERMAN ACT, AN ACQUISITION IS UNLAWFUL IF IT CREATES A
MONOPOLY OR CONSTITUTES AN ATTEMPT TO MONOPOLIZE.  IMMINENT MONOPOLY
MAY APPEAR WHEN ONE LARGE CONCERN ACQUIRES ANOTHER, BUT IT IS UNLIKELY
TO BE PERCEIVED IN A SMALL ACQUISITION BY A LARGE ENTERPRISE.  AS A
LARGE CONCERN GROWS THROUGH A SERIES OF SUCH SMALL ACQUISITIONS, ITS
ACCRETIONS OF POWER ARE INDIVIDUALLY SO MINUTE AS TO MAKE IT DIFFICULT
TO USE THE SHERMAN ACT TEST AGAINST THEM.  . . . "  S. REP. NO. 1775,
81ST CONG., 2D SESS., 5. 

THE COMMITTEE DEFINED THE WORDS "MAY BE" AS FOLLOWS: 

"THE CONCEPT OF REASONABLE PROBABILITY CONVEYED BY THESE WORDS IS A
NECESSARY ELEMENT IN ANY STATUTE WHICH SEEKS TO ARREST RESTRAINTS OF
TRADE IN THEIR INCIPIENCY AND BEFORE THEY DEVELOP INTO FULL-FLEDGED
RESTRAINTS VIOLATIVE OF THE SHERMAN ACT.  A REQUIREMENT OF CERTAINTY
AND ACTUALITY OF INJURY TO COMPETITION IS INCOMPATIBLE WITH ANY EFFORT
TO SUPPLEMENT THE SHERMAN ACT BY REACHING INCIPIENT RESTRAINTS."  ID.,
AT 6. 

/5/  CONGRESSMAN CELLER IN TESTIFYING FOR THE CELLER-KEFAUVER BILL
THAT WAS THE 1950 AMENDMENT TO SEC. 7 OF THE CLAYTON ACT SAID: 

"(THE WORTH OF THE INDIVIDUAL IS THE WORTH OF THE NATION; NO MORE
AND NO LESS.  THAT WHICH STRENGTHENS THE INDIVIDUAL BOLSTERS THE
NATION; THAT WHICH DWARFS THE INDIVIDUAL BELITTLES THE NATION." 
HEARING ON H.R. 988 ET SEQ. BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 81ST CONG., 1ST SESS., SER.  10, PP. 14-15
(1949). 

SENATOR KEFAUVER SPOKE IN THE SAME VEIN: 

"(IF OUR DEMOCRACY IS GOING TO SURVIVE IN THIS COUNTRY WE MUST KEEP
COMPETITION, AND WE MUST SEE TO IT THAT THE BASIC MATERIALS AND
RESOURCES OF THE COUNTRY ARE AVAILABLE TO ANY LITTLE FELLOW WHO WANTS
TO GO INTO BUSINESS. 

"CHARTS AND STATISTICS WILL SHOW THAT EVERY YEAR THERE IS MORE AND
MORE CONCENTRATION, WITH MORE AND MORE CORPORATIONS PURCHASING OUT
THEIR COMPETITORS, SO THAT UNLESS THIS TREND IS HALTED WE ARE GOING TO
COME TO A PLACE WHERE THE BASIC INDUSTRIES AND BUSINESS OF AMERICA ARE
CONTROLLED BY A VERY, VERY SMALL GROUP OF A SMALL NUMBER OF
CORPORATIONS. 

"WE HAVE ALREADY REACHED THAT POINT IN A GREAT MANY OF OUR BASIC
INDUSTRIES.  THE EVIL OF THAT COURSE IS QUITE APPARENT.  WHEN PEOPLE
LOSE THEIR ECONOMIC FREEDOM, THEY LOSE THEIR POLITICAL FREEDOM. 

"WHEN THE DESTINY OF PEOPLE OVER THE LAND IS DEPENDENT UPON THE
DECISION OF TWO OR THREE PEOPLE IN A CENTRAL OFFICE SOMEWHERE, THEN THE
PEOPLE ARE GOING TO DEMAND THAT THE GOVERNMENT DO SOMETHING ABOUT IT. 

"WHEN IT REACHES THAT STAGE, IT IS GOING TO RESULT IN STATISM OF ONE
SORT OR ANOTHER; AND WHICHEVER SORT IT MAY BE, ONE IS EQUALLY AS BAD AS
ANOTHER, AS I SEE IT."  ID., AT 12. 

/6/  THE DISTRICT COURT FOUND THIS PROVISION NECESSARY IN ORDER TO
ASSEMBLE AN ADEQUATE DISTRIBUTION SYSTEM FOR THE AFTERMARKET.  WITHOUT
IT, SERVICE STATIONS AND INDEPENDENT JOBBERS WOULD BE UNABLE TO COMPETE
WITH FRANCHISED CAR DEALERS FOR THE REPLACEMENT BUSINESS.  FORD DOES
NOT CHALLENGE THIS PROVISION IN THIS COURT. 

/7/  FORD DOES NOT CHALLENGE THIS ANCILLARY PORTION OF THE DISTRICT
COURT DECREE PROTECTING THE EMPLOYEES OF THE NEW FOSTORIA PLANT. 

/8/  THE SUGGESTION THAT ANTITRUST "VIOLATORS MAY NOT BE REQUIRED TO
DO MORE THAN RETURN THE MARKET TO THE STATUS QUO ANTE," POST, AT 590,
IS NOT A CORRECT STATEMENT OF THE LAW.  IN UNITED STATES V. PARAMOUNT
PICTURES, INC., 334 U.S. 131, WE SUSTAINED BROAD INJUNCTIONS REGULATING
MOTION PICTURE LICENSES AND CLEARANCES WHICH WERE NOT RELATED TO THE
STATUS QUO ANTE.  REYNOLDS METALS CO. V. FTC, 114 U.S.APP.D.C. 2, 309
F.2D 223 (1962), CONCERNED THE ENFORCEMENT OF THE DISTRICT COURT. 

CLAYTON ACT, 15 U.S.C. 25, EMPOWER "THE ATTORNEY GENERAL, TO INSITUTE
PROCEEDINGS IN EQUITY TO PREVENT AND RESTRAIN . . . VIOLATIONS" OF THE
ANTITRUST LAWS.  THE RELIEF WHICH CAN BE AFFORDED UNDER THESE STATUTES
IS NOT LIMITED TO THE RESTORATION OF THE STATUS QUO ANTE.  THERE IS NO
POWER TO TURN BACK THE CLOCK.  RATHER, THE RELIEF MUST BE DIRECTED TO
THAT WHICH IS "NECESSARY AND APPROPRIATE IN THE PUBLIC INTEREST TO
ELIMINATE THE EFFECTS OF THE ACQUISITION OFFENSIVE TO THE STATUTE,"
UNITED STATES V. DU PONT & CO., 353 U.S. 586, 607, OR WHICH WILL "CURE
THE ILL EFFECTS OF THE ILLEGAL CONDUCT, AND ASSURE THE PUBLIC FREEDOM
FROM ITS CONTINUANCE."  UNITED STATES V. UNITED STATES GYPSUM CO., 340
U.S. 76, 88. 

/9/  "(IT WOULD BE A NOVEL, NOT TO SAY ABSURD, INTERPRETATION OF THE
ANTI-TRUST ACT TO HOLD THAT AFTER AN UNLAWFUL COMBINATION IS FORMED AND
HAS ACQUIRED THE POWER WHICH IT HAS NO RIGHT TO ACQUIRE, NAMELY, TO
RESTRAIN COMMERCE BY SUPPRESSING COMPETITION, AND IS PROCEEDING TO USE
IT AND EXECUTE THE PURPOSE FOR WHICH THE COMBINATION WAS FORMED, IT
MUST BE LEFT IN POSSESSION OF THE POWER THAT IT HAS ACQUIRED, WITH FULL
FREEDOM TO EXERCISE IT."  NORTHERN SECURITIES CO. V. UNITED STATES, 193
U.S. 197, 357. 

/10/  FORD ARGUES THAT THE 10-YEAR PROHIBITION ON ITS MANUFACTURE OF
SPARK PLUGS WILL LESSEN COMPETITION BECAUSE IT WILL REMOVE A POTENTIAL
COMPETITOR FROM THE MARKETPLACE.  THIS PROHIBITION, HOWEVER, IS MERELY
A STEP TOWARD THE RESTORATION OF THE STATUS QUO ANTE, AND IS, MOREOVER,
NECESSARY FOR AUTOLITE TO RE-ESTABLISH ITSELF. 

/11/  FORD ALSO ARGUES THAT THE RIGHT TO ITS OWN TRADE NAME IS A
CONSTITUTIONALLY PROTECTED PROPERTY RIGHT (CF. HOWE SCALE CO. V.
WYCKOFF, SEAMANS & BENEDICT, 198 U.S. 118; BROWN CHEMICAL CO. V. MEYER,
139 U.S. 540; UNITED STATES V. TROPIANO, 418 F.2D 1069, 1076 (CA2
1969), AND THAT THE REMEDIAL PROVISION OF SEC. 15 OF THE CLAYTON ACT
SHOULD NOT BE CONSTRUED TO LIMIT THE USE OF THIS RIGHT.  EVEN ON THAT
ASSUMPTION, WE COULD NOT ACCEPT THE CONCLUSION ADVANCED BY FORD. 
EVEN CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS SUCH AS PATENTS MAY NOT
BE USED AS LEVERS FOR OBTAINING OBJECTIVES PROSCRIBED BY THE ANTITRUST
LAWS.  E.G., BESSER MFG. CO. V. UNITED STATES, 343 U.S. 444, 448-449;
MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488.  HERE, THE USE BY FORD
OF ITS TRADE NAME WOULD PERPETUATE THE OE TIE AND WOULD HAVE THE
PROHIBITED EFFECT OF HINDERING THE RE-ENTRY OF AUTOLITE TO THE SPARK
PLUG MARKET AS A VIABLE COMPETITOR.     "THE TRADE MARK MAY BECOME A
DETRIMENTAL WEAPON IF IT IS USED TO SERVE A HARMFUL OR INJURIOUS
PURPOSE.  IF IT BECOMES A TOOL TO CIRCUMVENT FREE ENTERPRISE AND
UNBRIDLED COMPETITION, PUBLIC POLICY DICTATES THAT THE RIGHTS ENJOYED
BY ITS OWNERSHIP BE KEPT WITHIN THEIR PROPER BOUNDS.  IF A TRADE MARK
MAY BE THE LEGAL BASIS FOR ALLOCATING WORLD MARKETS, FIXING OF PRICES,
RESTRICTING COMPETITION, THE UNFAILING DEVICE HAS BEEN FOUND TO DESTROY
EVERY VESTIGE OF INHIBITION SET UP BY THE SHERMAN ACT."  UNITED STATES
V. TIMKEN ROLLER BEARING CO., 83 F.SUPP.  284, 316 (ND OHIO 1949),
AFF'D, 341 U.S. 593 (1951). 

/12/  THE DISTRICT COURT DECREE THUS IMPLEMENTS THE CONGRESSIONAL
JUDGMENT IN FAVOR OF ATOMIZED MARKETS REFLECTED IN THE CELLER-KEFAUVER
ANTIMERGER ACT: 

"BUT WE CANNOT FAIL TO RECOGNIZE CONGRESS' DESIRE TO PROMOTE
COMPETITION THROUGH THE PROTECTION OF VIABLE, SMALL, LOCALLY OWNED
BUSINESSES.  CONGRESS APPRECIATED THAT OCCASIONAL HIGHER COSTS AND
PRICES MIGHT RESULT FROM THE MAINTENANCE OF FRAGMENTED INDUSTRIES AND
MARKETS.  IT RESOLVED THESE COMPETING CONSIDERATIONS IN FAVOR OF
DECENTRALIZATION.  WE MUST GIVE EFFECT TO THAT DECISION."  BROWN SHOE
CO. V. UNITED STATES, 370 U.S. 294, 344. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

THE SPARK PLUG INDUSTRY AS IT STOOD PRIOR TO FORD'S ACQUISITION OF
AUTOLITE WAS HARDLY CHARACTERIZED BY VIGOROUS COMPETITION.  FOR 25
YEARS, THE INDUSTRY HAD CONSISTED OF AC, OWNED BY AND SUPPLYING
ORIGINAL EQUIPMENT (OE) PLUGS TO GENERAL MOTORS; CHAMPION, INDEPENDENT
AND SUPPLYING FORD; AUTOLITE, INDEPENDENT AND SUPPLYING CHRYSLER; AND A
NUMBER OF SMALL PRODUCERS WHO HAD NO OE SALES AND ONLY A MINUSCULE
SHARE OF THE AFTERMARKET.  /1/  THE HABIT AMONG MECHANICS OF INSTALLING
REPLACEMENT PLUGS CARRYING THE SAME BRAND AS THE AUTOMOBILE'S ORIGINAL
PLUGS, REINFORCED BY THE UNWILLINGNESS OF SERVICE STATIONS TO STOCK
MORE THAN TWO OR THREE BRANDS, /2/  MADE POSSIBLE THE "OE TIE," WHICH
RENDERED ANY LARGE-SCALE ENTRY INTO THE AFTERMARKET VIRTUALLY
IMPOSSIBLE WITHOUT FIRST OBTAINING A LARGE OE CUSTOMER.  MOREOVER,
PRICE COMPETITION WAS MINIMAL, BOTH IN THE OE MARKET (WHERE ANY
REDUCTION IN THE SIX-CENT PRICE WOULD IMMEDIATELY BE MATCHED BY
RIVALS), AND IN THE AFTERMARKET (WHERE SPARK PLUGS ACCOUNTED FOR SUCH A
SMALL PERCENTAGE OF THE NORMAL TUNEUP CHARGE THAT PRICE DIFFERENTIALS
DID NOT HAVE A SIGNIFICANT IMPACT UPON CONSUMER CHOICE). 

THE DISTRICT COURT FOUND THAT THE ACQUISITION OF AUTOLITE'S SPARK
PLUG ASSETS BY FORD FURTHER LESSENED COMPETITION IN THE INDUSTRY IN TWO
WAYS:  IT FORECLOSED FORD AS A POTENTIAL PURCHASER OF SPARK PLUGS FROM
INDEPENDENT PRODUCERS, AND IT ELIMINATED WHAT THE DISTRICT COURT FOUND
TO HAVE BEEN FORD'S "MODERATING EFFECT" UPON CHAMPION'S PRICING
POLICIES IN THE AFTERMARKET.  THESE FINDINGS STANDING ALONE MIGHT
PROVIDE A BASIS FOR CONCLUDING THAT THE ACQUISITION VIOLATED SEC. 7,
BUT, AS THE CHIEF JUSTICE DEMONSTRATES IN HIS DISSENTING OPINION, POST,
AT 591-592, THE REMEDY ORDERED WILL NOT RESTORE THE PRE-ACQUISITION
MARKET FORCES UPON WHICH THE DISTRICT COURT FOCUSED.  FOR, UNDER THE
COURT'S INJUNCTIONS, FORD WILL BE NEITHER A POTENTIAL MARKET ENTRANT,
NOR A POTENTIAL PURCHASER OF HALF ITS OE REQUIREMENTS FROM PRODUCERS
OTHER THAN AUTOLITE, FOR A SUBSTANTIAL PERIOD OF TIME AFTER THE
DIVESTITURE TAKES PLACE. 

IN MY JUDGMENT, BOTH THE FINDING OF A SEC. 7 VIOLATION AND THE
REMEDY ORDERED MAY BE BETTER RATIONALIZED IN TERMS OF PROBABLE FUTURE
TRENDS IN THE SPARK PLUG MARKET, VISIBLE AT THE TIME OF THE
ACQUISITION.  THE DISTRICT COURT OBSERVED THAT "A COURT CANNOT SHUT ITS
EYES TO CONTEMPORARY OR PREDICTABLE FACTORS CONDUCIVE TO CHANGE IN THE
COMPETITIVE STRUCTURE."  286 F.SUPP.  407, 442.  THIS WAS A PROPER
INQUIRY BECAUSE WE HAVE HELD THAT SEC. 7 "REQUIRES NOT MERELY AN
APPRAISAL OF THE IMMEDIATE IMPACT OF THE MERGER UPON COMPETITION, BUT A
PREDICTION OF ITS IMPACT UPON COMPETITIVE CONDITIONS IN THE FUTURE." 
UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 362.  /3/ 

THE DISTRICT COURT FOUND THAT THE GROWTH OF SERVICE-CENTERS OPERATED
BY MASS MERCHANDISERS CARRYING PRIVATE LABEL BRANDS MIGHT EVENTUALLY
LOOSEN THE OE TIE AND THE TIGHT OLIGOPOLY IN THE SPARK PLUG MARKET THAT
IT HAD FOSTERED.  HAD FORD ENTERED THE MARKET THROUGH INTERNAL
EXPANSION, EITHER CHAMPION OR AUTOLITE WOULD HAVE BEEN LEFT WITHOUT AN
OE ENTRY, BUT WOULD NEVERTHELESS HAVE OWNED AN ESTABLISHED BRAND NAME
WITH AN EXISTING DISTRIBUTION SYSTEM, TOGETHER WITH A LARGE PRODUCTION
CAPACITY.  EVEN THE THREAT OF BEING SO STRANDED, NOT TO MENTION ITS
REALIZATION, WOULD HAVE GIVEN BOTH CHAMPION AND AUTOLITE AN INCENTIVE
TO COMPETE AS SUPPLIERS TO PRIVATE LABEL SELLERS, AS THESE SELLERS
BEGAN TO REPRESENT A SIGNIFICANT SHARE OF THE MARKET, AND TO UNDERMINE
THE OE TIE.  FORD'S ACQUISITION OF AUTOLITE DID MORE THAN FORECLOSE IT
AS A POTENTIAL OE CUSTOMER, OR ELIMINATE ITS "MODERATING EFFECT" UPON
CHAMPION'S PRICING POLICIES:  IT ELIMINATED ONE OF THE ONLY TWO
INDEPENDENT PRODUCERS WITH A SUFFICIENT SHARE OF THE AFTERMARKET TO
GIVE IT A CHANCE TO COMPETE EFFECTIVELY WITHOUT AN OE TIE.  THUS, THE
ACQUISITION HAD THE PROBABLE EFFECT OF INDEFINITELY POSTPONING THE DAY
WHEN EXISTING MARKET FORCES COULD PRODUCE A MEASURABLE DECONCENTRATION
IN THE MARKET. 

WHILE THE DISTRICT COURT DID NOT JUSTIFY THE DIVESTITURE IN PRECISELY
THESE TERMS, I THINK ITS PREDICTION OF FUTURE TRENDS IN THE SPARK PLUG
INDUSTRY IS AN ADEQUATE BASIS TO SUPPORT THE REMEDY ORDERED.  THE CHIEF
JUSTICE'S OPINION, POST, AT 591-592, IS CORRECT IN ITS ASSERTION THAT
THE ANCILLARY INJUNCTIONS ARE ANTICOMPETITIVE IN THE SHORT RUN, AND
THAT THE DISTRICT COURT TOOK EXTRAORDINARY MEASURES TO MOTHER THE
DIVESTED PRODUCER FOR THE NEXT DECADE.  BUT I CANNOT SAY THAT THESE
INJUNCTIONS ARE NOT REASONABLY CALCULATED TO ESTABLISH THE NEW AUTOLITE
PRODUCER AS A VIABLE FIRM AND THUS TO RESTORE THE PRE-ACQUISITION
MARKET STRUCTURE, INSOFAR AS IT IS NOW POSSIBLE TO DO SO.  A
DIVESTITURE DECREE WITHOUT ANCILLARY INJUNCTIONS WOULD NOT
AUTOMATICALLY RESTORE THE STATUS QUO ANTE, AS THE CHIEF JUSTICE'S
OPINION SEEMS TO ASSUME.  THE ELECTRIC AUTOLITE COMPANY, FROM WHICH
FORD ACQUIRED THE ASSETS IN QUESTION HERE, WILL NOT BE RECREATED BY THE
DIVESTITURE, AND IT IS REASONABLE TO ASSUME THAT A NEW OWNER OF THE
AUTOLITE TRADE NAME AND THE NEW FOSTORIA PLANT WILL REQUIRE A PERIOD OF
TIME TO BECOME AS EFFECTIVE A COMPETITOR AS WAS ELECTRIC AUTOLITE PRIOR
TO THE ACQUISITION. 

THOUGH THE ECONOMICS OF THE MARKET ARE SUCH THAT THE DIVESTITURE
CANNOT BE ASSURED OF SUCCESS, IT DOES AT LEAST HAVE A CHANCE OF
BRINGING INCREASED COMPETITION TO THE SPARK PLUG INDUSTRY.  AND WHILE
DIVESTITURE REMEDIES IN SEC. 7 CASES HAVE NOT ENJOYED SPECTACULAR
SUCCESS IN THE PAST, REMEDIES SHORT OF DIVISTITURE HAVE BEEN UNIFORMLY
UNSUCCESSFUL IN MEETING THE GOALS OF THE ACT.  SEE ELZINGA, THE
ANTIMERGER LAW:  PYRRHIC VICTORIES, 12 J.LAW & ECON.  43 (1969). 

/1/  BOTH CHAMPION AND AUTOLITE SUPPLIED OE PLUGS TO AMERICAN
MOTORS, WHICH IN 1961 HAD ROUGHLY 5% OF THE DOMESTIC AUTOMOBILE
MARKET. 

/2/  ACCORDING TO A 1966 SURVEY, ONLY 11% OF ALL METROPOLITAN AREA
SERVICE STATIONS STOCKED ANY BRAND OF SPARK PLUG OTHER THAN CHAMPION,
AC, OR AUTOLITE, AND ONLY 30% STOCKED ALL THREE OF THE LEADING BRANDS. 

/3/  FORD ARGUES THAT THE ACQUISITION ALLOWED AUTOLITE TO COMPETE
MORE EFFECTIVELY AGAINST THE TWO LARGER BRANDS, CHAMPION AND AC.  SINCE
THIS ARGUMENT IS ADDRESSED TO THE EFFECT OF THE ACQUISITION UPON
COMPETITION, THE COURT OBVIOUSLY PROVIDES NO ANSWER TO THE ARGUMENT
WHEN IT QUOTES PHILADELPHIA NATIONAL BANK FOR THE PROPOSITION THAT
ARGUMENTS UNRELATED TO THE MERGER'S EFFECT UPON COMPETITION ARE
IRRELEVANT IN A SEC. 7 CASE.  BUT FORD'S ARGUMENTS THAT AUTOLITE WAS A
MORE EFFECTIVE COMPETITOR AFTER THE ACQUISITION RESTS PRINCIPALLY ON
THE FACT THAT AUTOLITE'S MARKET SHARE INCREASED AFTER 1961 WHILE
CHAMPION'S DECREASED.  THIS DEVELOPMENT, HOWEVER, CAN BE ATTRIBUTED FOR
THE MOST PART TO THE FACT THAT AUTOLITE NOW PROVIDES OE PLUGS TO FORD,
RATHER THAN TO THE SMALLER CHRYSLER.  AUTOLITE'S INCREASED MARKET
SHARE, THEREFORE, IS MORE LIKELY ATTRIBUTABLE TO THE OE TIE THAN TO ANY
INCREASE IN ITS COMPETITIVE VIGOR. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN PART AND DISSENTING IN
PART. 

IN ADDITION TO REQUIRING DIVESTITURE OF AUTOLITE, THE DISTRICT COURT
MADE ANCILLARY INJUNCTIVE PROVISIONS THAT GO FAR BEYOND ANY THAT HAVE
BEEN CITED TO THE COURT.  FORD IS FORBIDDEN TO MANUFACTURE SPARK PLUGS
FOR 10 YEARS; FORD IS ORDERED TO PURCHASE ONE-HALF OF ITS TOTAL ANNUAL
REQUIREMENT OF SPARK PLUGS FROM THE DIVESTED COMPANY UNDER THE
"AUTOLITE" NAME, AND FORD IS FORBIDDEN FOR THE SAME PERIOD TO USE ITS
OWN TRADE NAME ON ANY SPARK PLUGS.  THESE PROVISIONS ARE DIRECTED TO
PREVENT FORD FROM MAKING AN INDEPENDENT ENTRY INTO THE SPARK PLUG
MARKET AND, IN EFFECT, TO REQUIRE IT TO SUBSIDIZE AUTOLITE FOR A PERIOD
OF TIME.  DESPITE THE DRACONIAN QUALITY OF THIS RESTRICTION ON FORD, I
CAN FIND NO JUSTIFICATION IN THE DISTRICT COURT'S FINDINGS FOR THIS
REMEDY.  I DISSENT FROM THE BROAD SWEEP OF THE DISTRICT COURT'S
REMEDIAL DECREE.  I WOULD REMAND FOR FURTHER CONSIDERATION OF THE
REMEDIAL ASPECTS OF THIS CASE. 

AN UNDERSTANDING OF THE DISTRICT COURT'S FINDINGS AS TO THE SPARK
PLUG MARKET SHOWS THREE REASONS WHY IT WAS IN ERROR IN REQUIRING FORD
TO SUPPORT AUTOLITE.  FIRST, THE COURT DID NOT FIND THAT THE WEAKNESS
OF AN INDEPENDENT AUTOLITE'S COMPETITIVE POSITION RESULTED FROM FORD'S
ACQUISITION.  RATHER, A READING OF ITS FINDINGS MAKES APPARENT THAT THE
PRECARIOUSNESS OF AUTOLITE'S EXPECTED POST-DIVESTMENT POSITION RESULTS
FROM PRE-EXISTING FORCES IN THE MARKET.  THEREFORE, THE DRASTIC
MEASURES EMPLOYED TO STRENGTHEN AUTOLITE'S POSITION AT FORD'S EXPENSE
CANNOT BE JUSTIFIED AS A REMEDY FOR ANY WRONG DONE BY FORD.  SECOND,
THE REMEDY WILL PERPETUATE FOR A TIME THE VERY EVILS UPON WHICH THE
DISTRICT COURT BASED A FINDING OF AN ANTITRUST VIOLATION.  THIRD, THE
COURT'S OWN FINDINGS INDICATE THAT THE REMEDY IS NOT LIKELY TO SECURE
AUTOLITE'S COMPETITIVE POSITION BEYOND THE TERMINATION OF THE
RESTRICTIONS.  THEREFORE, THERE IS NO ASSURANCE THAT THE JUDICIAL
REMEDY WILL HAVE THE DESIRED IMPACT ON LONG-RUN COMPETITION IN THE
SPARK PLUG MARKET. 

THE COURT MAKES TWO CRITICAL ERRORS IN ORDER TO AVOID THE EFFECT OF
THIS REASONING.  IT REJECTS THE FACTFINDING BY THE DISTRICT COURT IN
ORDER TO UPHOLD ITS REMEDIAL ORDER; AND IT REPEATS THAT COURT'S ERROR
BY DISCUSSING THE ASSISTANCE NECESSARY TO RESTORE AUTOLITE TO THE
STATUS QUO ANTE WITHOUT EVER DELINEATING THAT PRIOR STATE OF AFFAIRS OR
INDICATING HOW FORD, BY ACQUIRING AUTOLITE AND HOLDING IT FOR A NUMBER
OF YEARS, HAD UNDERMINED ITS ABILITY TO REASSUME ITS FORMER INDEPENDENT
COMPETITIVE POSITION. 

THE DISTRICT COURT MADE EXTENSIVE FINDINGS ON THE NATURE OF THE
SPARK PLUG MARKET.  SOME OF THESE FINDINGS APPEAR IN THE COURT'S
OPINION, BUT SOME FACTORS THAT SEEM CRUCIAL TO ME ARE EITHER OMITTED OR
NOT ADEQUATELY SET FORTH.  THEREFORE I WILL SKETCH THESE FINDINGS AT
SOME RISK OF REPETITION. 

BEYOND DOUBT, THE SPARK PLUG MARKET HAS BEEN OVERWHELMINGLY
DOMINATED BY THREE MANUFACTURERS FOR A LONG PERIOD:  AC, OWNED BY
GENERAL MOTORS, WHICH HAD ABOUT 30% OF THE MARKET IN 1961; CHAMPION,
WHICH HAD SUPPLIED FORD SINCE 1910 AND HAD APPROXIMATELY 50% OF THE
MARKET IN 1961; AND AUTOLITE, WHICH HAD SUPPLIED CHRYSLER SINCE 1941
AND HAD 15% OF THE MARKET IN 1961.  TOGETHER THESE THREE COMPANIES HAD
OVER 95% OF THE TOTAL MARKET IN 1961. 

THE REASON FOR THE CONTINUED DOMINATION OF THE MARKET BY THE THREE
BIG PLUG MANUFACTURERS IS THE PERVASIVE FEATURE OF THE PLUG MARKET
KNOWN AS THE "OE ORIGINAL EQUIPMENT) TIE."  THIS DENOMINATES THE
PHENOMENON THAT MECHANICS WHO REPLACE SPARK PLUGS IN A CAR ENGINE HAVE
TENDED, ALMOST EXCLUSIVELY, TO USE THE BRAND OF PLUG INSTALLED BY THE
AUTO BUILDER AS ORIGINAL EQUIPMENT.  THOUGH NOT REQUIRED BY SPARK PLUG
TECHNOLOGY, MECHANICS HAVE FOLLOWED THIS PRACTICE BECAUSE OF A STRONG
DESIRE TO AVOID ANY CHANCE OF INJURING AN ENGINE BY PUTTING A
MISMATCHED PLUG INTO IT.  FURTHER, BECAUSE PLUGS ARE LOW-PROFIT ITEMS,
THOSE WHO INSTALL THEM TEND TO CARRY AN INVENTORY OF A SMALL NUMBER OF
BRANDS.  MOST CARRY ONLY TWO AND SOME CARRY THREE BRANDS, AND THEY
CHOOSE THE BRANDS INSTALLED BY THE BIG AUTO MANUFACTURERS AS ORIGINAL
EQUIPMENT.  THUS, IT TAKES A POSITION AS SUPPLIER TO A LARGE AUTO MAKER
TO GAIN RECOGNITION IN THE SPARK PLUG REPLACEMENT MARKET.  THE
GOVERNMENT CONCEDED IN THE DISTRICT COURT, FOR INSTANCE, THAT AMERICAN
MOTORS, WITH 5% OF THE AUTO MARKET, WOULD NOT BE ABLE TO CREATE MARKET
ACCEPTANCE FOR AN INDEPENDENT BRAND OF PLUG BY INSTALLING IT AS
ORIGINAL EQUIPMENT IN ITS CARS. 

BECAUSE OF THE COMPETITIVE IMPORTANCE OF HAVING THEIR PLUGS
INSTALLED AS ORIGINAL EQUIPMENT BY ONE OF THE THREE AUTO COMPANIES,
PLUG MANUFACTURERS HAVE OVER A LONG PERIOD BEEN WILLING TO SELL OE
PLUGS FOR INITAL INSTALLATION BY AUTO MANUFACTURERS AT A PRICE BELOW
THEIR PRODUCTION COST.  THE LONGSTANDING PRICE FOR OE PLUGS, ABOUT 6
CENTS, IS NOW APPROXIMATELY ONE-THIRD OF THE COST OF PRODUCING THESE
PLUGS.  SUCH BELOW-COST SELLING IS PROFITABLE FOR THE PLUG COMPANIES
BECAUSE OF THE FOOTHOLD IT GIVES THEM IN COMPETING FOR THE NORMAL FIVE
OR SIX SETS OF REPLACEMENT PLUGS NECESSARY IN THE LIFESPAN OF AN
AUTOMOBILE.  THIS PRICING POLICY HAS BEEN PARTIALLY RESPONSIBLE FOR THE
SEMIPERMANENT RELATIONS BETWEEN THE PLUG MANUFACTURERS AND THE AUTO
MANUFACTURERS:  IT IS ONLY THOSE PLUG COMPANIES THAT PROFIT FROM THE OE
TIE OVER THE LONG RUN THAT CAN AFFORD THIS BELOW-COST SALE TO THE AUTO
COMPANIES.     THE STRENGTH OF THE OE TIE IS DEMONSTRATED BY THE
INABILITY OF WELL-KNOWN AUTO SUPPLY MANUFACTURERS TO GAIN A SIGNIFICANT
SHARE OF THE SPARK PLUG MARKET IN THE ABSENCE OF AN OE TIE.  AS THE
DISTRICT COURT FOUND, NO COMPANY WITHOUT THE OE TIE 

"EVER SURPASSED THE 2% LEVEL.  SEVERAL HAVE COME AND GONE. 
FIRESTONE TIRE AND RUBBER COMPANY MERCHANDISED 'FIRESTONE'
REPLACEMENTS FOR 35 YEARS BEFORE IT GAVE UP IN 1964.  ALTHOUGH IT OWNED
SOME 800 ACCESSORY STORES AND SUCCESSFULLY WHOLESALED OTHER ITEMS TO
MORE THAN 50,000 SHOPS AND FILLING STATIONS, IT COULD NOT SURMOUNT THE
PATENT DISCRIMINATION AGAINST BRANDS NOT BLESSED WITH DETROIT'S
APPROBATION.  GOODYEAR TIRE AND RUBBER COMPANY QUIT IN ONLY THREE
YEARS.  GLOBE UNION, A FABRICATOR WHICH HAD BARELY 1% OF THE NATION'S
SHIPMENTS, WITHDREW IN 1960."  286 F.SUPP.  407, 434-435.  TWO SMALL
MANUFACTURERS SURVIVE, PRODUCING PLUGS FOR PRIVATE-LABEL BRANDS.  THUS
"ATLAS" PLUGS, SPONSORED BY THE STANDARD OIL COMPANIES, HAS 1.4% OF THE
REPLACEMENT MARKET; "PRESTOLITE" AND SEARS, ROEBUCK'S "ALLSTATE" EACH
HAVE 1.2%; AND MONTGOMERY WARD'S "RIVERSIDE" LABEL HAS 0.6% OF THE
REPLACEMENT MARKET. 

AN INDENDENT ENTRY INTO THE PLUG MARKET BY FORD, WITH THE EXPECTED
SUBSTITUTION OF ITS OWN PLUGS AS ORIGINAL EQUIPMENT IN ITS CARS, WOULD
HAVE NECESSARILY DEPRIVED ONE OF THE TWO SIGNIFICANT INDEPENDENT PLUG
PRODUCERS OF ITS OE STATUS.  THE DISTRICT COURT FOUND THAT, BECAUSE OF
THE IMPORTANCE OF THE OE TIE, THE PLUG PRODUCER DEPRIVED OF THIS
SUPPORT WOULD MOST LIKELY HAVE LOST ANY SIGNIFICANT POSITION IN THE
MARKET.  /1/  AUTOLITE, WITH ONLY 15% OF THE MARKET BEFORE THE
ACQUISITION, WOULD CERTAINLY HAVE LOST ANY SIGNIFICANT POSITION IN THE
MARKET IF AN INDEPENDENT ENTRY BY FORD HAD LED CHRYSLER TO SHIFT ITS
PATRONAGE FROM AUTOLITE TO CHAMPION.  THE DISTRICT COURT ASSERTED THAT
A CHAMPION WITHOUT OE STATUS WOULD HAVE HAD SOME CHANCE OF MAINTAINING
A SIGNIFICANT MARKET POSITION BECAUSE OF ITS SIZE, ALTHOUGH IT GAVE NO
REASON FOR THINKING CHAMPION'S SIZE IMMUNIZED IT FROM DEPENDENCE ON OE
STATUS.  BEFORE 1961, CHAMPION HAD JUST UNDER 50% OF THE MARKET.  AS A
RESULT OF CHAMPION'S MOVE TO CHRYSLER IN 1961, ITS POSITION IN THE
MARKET DROPPED TO 33% BY 1966.  THE DISTRICT COURT FOUND NO BASIS FOR
PREDICTING WHICH OF THE TWO BIG INDEPENDENTS WOULD HAVE WON SUCH A
COMPETITION FOR CONTINUED OE STATUS. 

THUS, AN INDEPENDENT ENTRY BY FORD WOULD NOT LIKELY HAVE INCREASED
THE NUMBER OF SIGNIFICANT COMPETITORS IN THE SPARK PLUG MARKET. 
RATHER, IT WOULD SIMPLY HAVE SUBSTITUTED FORD FOR ONE OF THE TWO
SIGNIFICANT INDEPENDENT MANUFACTURERS.  THE RESULT OF THIS EXPECTATION
IS THAT THE DISTRICT COURT DID NOT BASE ITS FINDING OF ILLEGALITY ON
THE GROUND TYPICALLY PRESENT WHEN A POTENTIAL ENTRANT ENTERS AN
OLIGOPOLISTIC MARKET BY ACQUISITION RATHER THAN INTERNAL EXPANSION,
I.E., THAT SUCH A MOVE HAS DEPRIVED THE MARKET OF THE PRO-COMPETITIVE
EFFECT OF AN INCREASE IN THE NUMBER OF COMPETITORS.  HERE AN
INDEPENDENT ENTRY WOULD NOT HAVE INCREASED THE NUMBER OF COMPETITORS
BUT SIMPLY WOULD HAVE EXCHANGED ONE COMPETITOR FOR ANOTHER.  IN NOTING
THIS PARADOXICAL FACT, THE DISTRICT COURT CONCLUDED THAT "FORD MAY WELL
HAVE BEEN MORE USEFUL AS A POTENTIAL THAN IT WOULD HAVE BEEN AS A REAL
PRODUCER, REGARDLESS HOW IT BEGAN FABRICATION."  /2/  286 F.SUPP.,AT
441. 

NOT FINDING THAT FORD'S ENTRY BY ACQUISITION HAD DEPRIVED THE SPARK
PLUG MARKET OF ANY PRO-COMPETITIVE EFFECT OF AN INDEPENDENT ENTRY, THE
DISTRICT COURT RELIED ON TWO OTHER GROUNDS FOR FINDING A VIOLATION OF
THE ANTITRUST LAWS.  FIRST, IT CONCLUDED THAT AS A POTENTIAL ENTRANT ON
THE EDGE OF THE MARKET WHICH WAS ALSO A MAJOR PURCHASER IN THE MARKET,
FORD EXERCISED A "MODERATING" INFLUENCE ON THE MARKET; THE SECOND BASIS
FOR DETERMINING THE ACQUISITION ILLEGAL WAS THE FINDING THAT THE
ACQUISITION "FORECLOSED" OTHER COMPANIES FROM COMPETING FOR THE
BUSINESS OF SUPPLYING FORD WITH SPARK PLUGS. 

WITH RESPECT TO AUTOLITE ITSELF, THE DISTRICT COURT MADE SEVERAL
RELEVANT FINDINGS.  FIRST, IT FOUND THAT AUTOLITE IS A FIXED-PRODUCTION
PLANT.  IN OTHER WORDS, IT CAN BE PROFITABLE ONLY TURNING OUT
APPROXIMATELY THE NUMBER OF PLUGS IT NOW MANUFACTURES.  IT COULD NOT,
FOR INSTANCE, REDUCE ITS PRODUCTION BY HALF AND SELL THAT AT A PROFIT. 
SECOND, IT MADE EXTENSIVE FINDINGS WITH RESPECT TO AUTOLITE'S
DISTRIBUTION SYSTEM: 

"FORD RECEIVED SIX REGIONAL OFFICES, PERSONNEL AND A LIST OF
ELECTRIC AUTOLITE'S WAREHOUSERS AND JOBBERS.  ALL OF THESE HAVE BEEN
AND STILL ARE AT LIBERTY TO DEAL WITH ANYONE THEY WISH.  EACH OLD
DIRECT ACCOUNT HAD TO BE VISITED INDIVIDUALLY AND, IF IT CONSENTED, BE
RE-SIGNED BY DEFENDANT (FORD).  WITHIN A FEW MONTHS, 52 DID ENTER INTO
NEW IGNITION CONTRACTS.  HOWEVER, 50 OF THESE FOR THE PREVIOUS YEAR HAD
ALSO BEEN . . . (DISTRIBUTORS OF OTHER FORD PRODUCTS).  BY MID-1966,
DIRECT ACCOUNTS TOTALED 156, OF WHICH 104 IN 1960 HAD BEEN PLEDGED TO
NEITHER FORD NOR AUTOLITE.  THE SAME BLOC OF 50 HAD BEEN COMMITTED TO
BOTH.  THE NET INCREASE TRACEABLE WITH ANY SEMBLANCE OF ACCURACY TO THE
ACQUISITION IS TWO FIRST-LAYER MIDDLEMEN . . . . "  286 F.SUPP.,AT
422.  AS TO DIFFICULTIES THAT A DIVESTED AUTOLITE MIGHT HAVE IN
ESTABLISHING AN INDEPENDENT DISTRIBUTION SYSTEM, THE DISTRICT COURT
MENTIONED ONLY ONE:  /3/  IF FORD WERE TO OFFER ITS OWN PLUGS TO ITS
CAR DEALERS AT A FAIRLY LOW PRICE, ONE WHICH INDEPENDENT JOBBERS COULD
NOT MEET, AUTOLITE WOULD HAVE DIFFICULTY INDEPENDENTLY ESTABLISHING ITS
DISTRIBUTION SYSTEM.  THE JOBBERS WOULD BE LESS INTERESTED IN HANDLING
AUTOLITE'S LINE SINCE THE FORD DEALERS WOULD NOT WANT AUTOLITE AT THE
JOBBERS' PRICE AND, WITH THIS DEMAND CUT OUT, THE JOBBERS WOULD BE LESS
INTERESTED IN PUSHING AUTOLITE GENERALLY. 

THERE IS ANOTHER SET OF RELEVANT FACTS FOUND BY THE DISTRICT COURT. 
THE DISTRICT JUDGE FOUND THAT "THERE IS A RISING WIND OF NEW FORCES IN
THE SPARK PLUG MARKET WHICH MAY PROFOUNDLY CHANGE IT."  315 F.SUPP. 
372, 377.  ON THE BASIS OF THE TESTIMONY OF AN EXECUTIVE OF ONE OF THE
PRODUCERS OF PLUGS FOR PRIVATE LABELS, THE COURT FOUND THAT THE PRIVATE
BRAND SECTOR WOULD GROW DURING THE NEXT 10 YEARS.  THIS HIGHLY
SPECULATIVE OBSERVATION OF THE DISTRICT COURT WAS BASED ON A FINDING
THAT THE MASS MERCHANDISERS ARE BEGINNING TO ENTER THE PLUG MARKETING
FIELD IN FORCE.  NOT ONLY DO THE MASS MERCHANDISERS MARKET PRIVATE
BRAND PLUGS OVER THE COUNTER, BUT THEY ARE ALSO BUILDING SERVICE BAYS. 
AND IN THESE BAYS MANY CARRY ONLY THEIR OWN PROPRIETARY BRAND OF SPARK
PLUGS.  THIS WITNESS PREDICTED THAT THE MASS MERCHANDISERS WOULD
INCREASE THEIR SHARE OF THE AFTERMARKET FROM 4.4% TO 10% BY 1980.  HE
FURTHER PREDICTED THAT OIL COMPANIES WOULD ENTER THE REPLACEMENT
MARKET, RESULTING IN A TOTAL OF 17% OF THE REPLACEMENT MARKET BEING
SUPPLIED BY PRIVATE-LABEL PLUGS BY 1980.  THE COURT CONCLUDED THAT
THESE FORCES "MAY WELL LEAD TO (THE MARKET'S) EVENTUAL DECONCENTRATION
BY INCREASING THE NUMBER OF POTENTIAL CUSTOMERS FOR A NEW ENTRANT INTO
THE PLUG MANUFACTURING BUSINESS AND REDUCING THE NEED FOR ORIGINAL
EQUIPMENT IDENTIFICATION."  315 F.SUPP.,AT 378. 

IN ITS SEPARATE OPINION ON REMEDIES, THE DISTRICT COURT CORRECTLY
STATED THE RELEVANT LAW; THE PURPOSE, AND LIMIT OF ANTITRUST REMEDIES,
IS TO 

"FREE THESE FORCES (WITHIN THE MARKET) FROM THE UNLAWFUL RESTRAINT
IMPOSED UPON THEM SO THAT THEY MAY RUN THEIR NATURAL COURSE."  315
F.SUPP.,AT 377.  THE VIOLATORS MAY NOT BE REQUIRED TO DO MORE THAN
RETURN THE MARKET TO THE STATUS QUO ANTE.  SEE UNITED STATES V.
PARAMOUNT PICTURES, INC., 334 U.S. 131, 152-153 (1948); REYNOLDS METALS
CO. V. FTC, 114 U.S.APP.D.C. 2, 309 F.2D 223 (1962) (BURGER, J.). 
APPLYING THIS GENERAL PROVISION TO THE INSTANT SITUATION, THE DISTRICT
COURT CORRECTLY STATED: 

     "THE COURT WISHES TO NOTE HERE THAT ALTHOUGH IT FINDS THAT

DIVESTITURE IS THE ONLY EFFECTIVE REMEDY, IT DOES NOT AGREE WITH

  THE GOVERNMENT THAT THE REMEDY SHOULD BE AFFIRMATIVELY DESIGNED

  TO 'BREAK THE OE TIE.'  THE REMEDY IS DESIGNED TO CORRECT THE

  VIOLATIONS OF SECTION 7 FOUND BY THE COURT.  THE OE TIE, AS SUCH,

  DOES NOT VIOLATE SECTION 7."  315 F.SUPP.,AT 378. 

THE DISTRICT COURT THEN CONCLUDED THAT, IN ADDITION TO DIVESTITURE OF
THE AUTOLITE PLANT AND TRADE NAME, CERTAIN INJUNCTIVE PROVISIONS WERE
REQUIRED "TO GIVE (AUTOLITE) AN OPPORTUNITY TO ESTABLISH ITS
COMPETITIVE POSITION."  IBID.  IT THEREFORE ORDERED THAT FORD BE
PROHIBITED FROM MANUFACTURING SPARK PLUGS FOR A PERIOD OF 10 YEARS.  IT
FURTHER ORDERED THAT FOR A PERIOD OF FIVE YEARS FORD WOULD BE REQUIRED
TO PURCHASE ONE-HALF OF ITS TOTAL ANNUAL NEEDS OF SPARK PLUGS FROM
AUTOLITE, BEARING THE AUTOLITE LABEL.  FOR THIS FIVE-YEAR PERIOD FORD
WAS ALSO ORDERED NOT TO USE OR MARKET A SPARK PLUG UNDER A TRADE NAME
OWNED BY OR LICENSED TO IT.  THE EFFECT OF THESE ORDERS WAS TWOFOLD. 
THEY ASSURED AUTOLITE OF A PURCHASER FOR A LARGE PART OF ITS PRODUCTION
FOR FIVE YEARS.  AND THEY PREVENTED FORD FROM IMMEDIATELY ENTERING THE
COMPETITION FOR A SHARE OF THE AFTERMARKET WITH A PLUG UNDER ITS OWN
NAME; IT COULD NOT EVEN LABEL A PLUG UNDER ITS OWN NAME FOR FIVE YEARS
AND COULD NOT MANUFACTURE ITS OWN PLUG FOR 10 YEARS.  GIVEN THE
FINDINGS OF THE COURT THAT EVEN WITH THE STATUS OF SUPPLIER OF ORIGINAL
EQUIPMENT (WITH THE COMPANY'S OWN BRAND NAME ON PLUGS) TO A MAJOR AUTO
MANUFACTURER IT WOULD TAKE A NEW ENTRANT INTO THE SPARK PLUG MARKET
FIVE TO EIGHT YEARS TO ESTABLISH A POSITION FOR ITS BRAND IN THE
REPLACEMENT MARKET, THE DISTRICT COURT'S ORDERS ASSURED THAT FORD COULD
NOT BEGIN TO HAVE BRAND-NAME SUCCESS IN THE REPLACEMENT MARKET FOR AT
LEAST 10 TO 13 YEARS.  /4/ 

IN MY VIEW THESE DRASTIC REMEDIAL PROVISIONS ARE NOT WARRANTED BY
THE COURT'S FINDINGS AS TO THE GROUNDS ON WHICH FORD'S ACQUISITION
VIOLATED THE ANTITRUST LAWS.  FURTHER, IN LIGHT OF THE DISTRICT COURT'S
OWN FACTFINDINGS, THESE REMEDIES WILL HAVE SHORT RUN ANTICOMPETITIVE
IMPACT AND THEY GIVE NO ASSURANCE THAT THEY WILL SUCCEED IN AUTOLITE TO
ESTABLISH ITS COMPETITIVE POSITION. 

THE REMEDIAL PROVISIONS ARE UNRELATED TO RESTORING THE STATUS QUO
ANTE WITH RESPECT TO THE TWO VIOLATIONS FOUND BY THE DISTRICT COURT,
THE ENDING OF FORD'S STATUS AS A POTENTIAL ENTRANT WITH A MODERATING
INFLUENCE ON THE MARKET AND THE FORECLOSURE OF A SIGNIFICANT PART OF
THE PLUG MARKET.  INDEED, THE REMEDIES MAY WELL BE ANTI-COMPETITIVE IN
BOTH RESPECTS.  FIRST, THE DISTRICT COURT'S ORDER ACTUALLY UNDERCUTS
THE MODERATING INFLUENCE OF FORD'S POSITION ON THE EDGE OF THE MARKET. 
IT IS THE POSSIBILITY THAT A COMPANY ON THE SIDELINES WILL ENTER A
MARKET THROUGH INTERNAL EXPANSION THAT HAS A MODERATING INFLUENCE ON
THE MARKET.  BY PROHIBITING FORD FROM ENTERING THE MARKET THROUGH
INTERNAL EXPANSION, THEREFORE, THE REMEDY ORDER WIPES OUT, FOR THE
DURATION OF THE RESTRICTION, THE PRO-COMPETITIVE INFLUENCE FORD HAD ON
THE MARKET PRIOR TO ITS ACQUISITION OF AUTOLITE.  SECOND, THE COURT'S
ORDER DOES NOT FULLY UNDO THE FORECLOSURE EFFECT OF THE ACQUISITION. 
DIVESTMENT ALONE WOULD RETURN THE PARTIES TO THE STATUS QUO ANTE.  FORD
WOULD THEN BE FREE TO DEAL WITH AUTOLITE OR ANOTHER PLUG PRODUCER OR TO
ENTER THE MARKET THROUGH INTERNAL EXPANSION.  YET THE COURT HAS ORDERED
FORD TO BUY AT LEAST HALF ITS REQUIREMENTS FROM AUTOLITE FOR FIVE
YEARS.  THUS, THE ORDER ITSELF FORECLOSES PART OF FORD'S NEEDS FROM THE
FORCES OF COMPETITION. 

THE ABOVE PROBLEMS MIGHT BE MINOR IF THE DISTRICT COURT'S REMEDY
WERE JUSTIFIABLE IN TERMS OF RETURNING AUTOLITE TO THE STATUS QUO ANTE
BY OVERCOMING SOME HARM TO ITS ABILITY TO COMPETE ACCOMPLISHED BY
FORD'S ACQUISITION.  BUT ON THIS ISSUE THE DISTRICT COURT OPINION AND
THE MAJORITY OF THIS COURT ARE CONFUSED.  ALTHOUGH THE DISTRICT COURT
ASSERTED THAT AUTOLITE NEEDED THE AID OF ITS INJUNCTIVE REMEDIES TO
ESTABLISH ITS COMPETITIVE POSITION, THE COURT MADE NO FINDINGS IN ITS
REMEDY OPINION AS TO THE SOURCE OF AUTOLITE'S COMPETITIVE WEAKNESS. 
THEREFORE IT NEVER REACHED THE ISSUE WHETHER THE SOURCE OF WEAKNESS HAD
ANYTHING TO DO WITH THE VIOLATIONS ATTRIBUTED TO FORD.  INSTEAD, THE
COURT'S OPINION PROCEEDED FROM THE RECOGNITION OF COMPETITIVE PROBLEMS
IMMEDIATELY TO THE PRESCRIPTION OF A REMEDY. 

IN FACT, A FAIR READING OF THE FINDINGS OF THE DISTRICT COURT SHOWS
THAT THE ACQUISITION DID NOT INJURY AUTOLITE'S COMPETITIVE POSITION. 
AUTOLITE'S OE STATUS WAS CONTINUED AND ITS SHARE OF THE AFTERMARKET WAS
INCREASED FROM 12.5% TO 19%.  THUS, ITS TRADEMARK IS AT LEAST AS STRONG
NOW AS WHEN FORD ACQUIRED THE COMPANY.  NOR DID THE ACQUISITION AND
HOLDING OF AUTOLITE INJURE ITS DISTRIBUTION SYSTEM.  THE DISTRICT COURT
FOUND THAT AUTOLITE DID NOT OWN A DISTRIBUTION SYSTEM.  IT MERELY HAD
SHORT-TERM CONTRACTS WITH JOBBERS WHO DISTRIBUTED ITS PLUGS TO THOSE
WHO INSTALL THEM IN CARS OR SELL THEM TO THE PUBLIC.  ALMOST ALL OF
THESE JOBBERS HAD CONCURRENT DISTRIBUTION RELATIONS WITH FORD.  IN
FACT, BETWEEN 1961 AND 1966 FORD TRIPLED THE NUMBER OF JOBBERS HANDLING
AUTOLITE PLUGS.  FROM THE OPINION BELOW, IT APPEARS THAT FORD HAS DONE
NOTHING THAT WILL PREVENT AN INDEPENDENT AUTOLITE FROM SEEKING TO
MAINTAIN THESE DISTRIBUTION CHANNELS.  THE ONLY POSSIBLE FINDING OF
INJURY TO BE SQUEEZED OUT OF THE ACQUISITION RELATED TO THE FACT THAT
AUTOLITE HAS BEEN SHORN OF ITS STATUS AS OE SUPPLIER OF CHRYSLER.  BUT
THIS IS INCONCLUSIVE.  AUTOLITE HAD NOTHING MORE IN ITS POSITION AS OE
SUPPLIER TO CHRYSLER THAN IT WOULD IF FORD VOLUNTARILY CHOSE TO USE
AUTOLITE PLUGS AFTER THE DIVESTMENT:  A RELATIONSHIP BASED ON SHORT
TERM CONTRACTS THE AUTO MANUFACTURER COULD REFUSE TO RENEW AT ANY
TIME.     THE FINDINGS OF THE DISTRICT COURT INDICATE THAT AUTOLITE'S
PRECARIOUS POSITION DID NOT RESULT FROM ITS ACQUISITION BY FORD.  PRIOR
TO THE ACQUISITION BOTH CHAMPION AND AUTOLITE WERE IN A CONTINUALLY
PRECARIOUS POSITION IN THAT THEIR CONTINUED LARGE SHARE OF THE MARKET
WAS TOTALLY DEPENDENT ON THEIR POSITIONS AS OE SUPPLIERS TO AUTO
MANUFACTURERS.  THE VERY FACTOR THAT ASSURED THAT THEY FACED NO SERIOUS
COMPETITION IN THE SHORT RUN ALSO ASSURED THAT IN THE LONG RUN THEIR
OWN POSITION WAS DEPENDENT ON THEIR RELATIONSHIP WITH A LARGE AUTO
MANUFACTURER.  THUS, THE THREAT TO AUTOLITE POSED BY A SIMPLE
DIVESTITURE IS THE SAME THREAT IT HAD LIVED WITH BETWEEN 1941 AND 1961
AS AN INDEPENDENT ENTITY:  IT MIGHT BE LEFT WITHOUT ANY OE SUPPLY
RELATIONSHIP WITH A MAJOR AUTO MANUFACTURER, AND THEREFORE ITS MARKET
POSITION BASED ON THIS RELATIONSHIP MIGHT DECLINE DRASTICALLY. 

TODAY'S OPINION ERRS WHEN IT STATES, ANTE, AT 571, THAT THE DISTRICT
JUDGE FOUND THE OE TIE THE "KEY TO THE SOLUTION" OF THIS PROBLEM. 
ALTHOUGH THE COURT INDEED FOUND THIS TIE A PERVASIVE FACTOR IN THE
MARKET, IT ALSO FOUND THAT THE PHENOMENON WAS NOT CREATED BY FORD AND
THAT IT DID NOT CONSTITUTE A SEC. 7 VIOLATION.  THEREFORE THE COURT
ERRS IN JUSTIFYING THE ANCILLARY REMEDIES AS NECESSARY TO OVERCOME THE
OE TIE.  EVEN IF SUCH A REMEDY MIGHT OVERCOME THE OE TIE, WHICH I
QUESTION, THERE IS NO JUSTIFICATION FOR BURDENING FORD WITH THE
RESTRICTIVE ORDER. 

FURTHER, THE ONLY CONCLUSION TO BE DRAWN FROM THE TRIAL FINDINGS IS
THAT THE REMEDY IS UNLIKELY TO RESULT IN A SECURE MARKET POSITION FOR
AUTOLITE AT THE END OF THE RESTRICTED PERIOD.  ONCE AGAIN IT WILL BE
DEPENDENT FOR ITS SURVIVAL ON WHETHER IT CAN MAINTAIN AN OE SUPPLY
STATUS.  THE DISTRICT COURT'S SUGGESTION THAT AUTOLITE CAN FIND A NICHE
SUPPLYING PRIVATE-BRAND LABELS IS UNPERSUASIVE.  IT CANNOT BE PREDICTED
WITH ANY CERTAINTY THAT THESE SALES OUTLETS WILL GROW TO THE EXTENT
PREDICTED BY ONE PERSON IN THAT LINE OF THE BUSINESS.  FURTHER, EVEN IF
THEY DO, THIS IS NO ASSURANCE OF AUTOLITE'S SURVIVAL.  THERE ARE
ALREADY SEVERAL COMPANIES IN THE BUSINESS OF PRODUCING PLUGS FOR
PRIVATE LABELS.  AUTOLITE WILL HAVE TO COMPETE WITH THEM.  THE RESULTS
WILL NOT BE HELPFUL.  ONE POSSIBILITY IS THAT AUTOLITE WOULD COMPLETELY
MONOPOLIZE THE PRIVATE-BRAND MARKET TO THE EXTENT OF ABOUT 17% OF THE
REPLACEMENT MARKET.  THIS IS AS UNCOMPETITIVE AS IT IS UNLIKELY.  THE
MORE REASONABLE LIKELIHOOD IS THAT AUTOLITE MIGHT BE ABLE TO GAIN A
POSITION PRODUCING, FOR INSTANCE, 5% OF THE REPLACEMENT MARKET PLUGS. 
BUT THIS WOULD BE USELESS BECAUSE THE DISTRICT COURT'S FINDINGS MAKE
CLEAR THAT AUTOLITE'S FIXED-PRODUCTION PLANT CANNOT SUPPLY SUCH A SMALL
SHARE OF THE MARKET AT A PROFIT. 

IN THE FINAL ANALYSIS IT APPEARS TO ME THAT THE DISTRICT COURT,
SEEING THE IMMEDIATE PRECARIOUSNESS OF AUTOLITE'S POSITION AS A
DIVESTED ENTITY, DESIGNED REMEDIES TO SUPPORT AUTOLITE WITHOUT
CONTEMPLATING WHETHER IT WAS EQUITABLE TO RESTRICT FORD'S FREEDOM OF
ACTION FOR THESE PURPOSES OR WHETHER THERE WAS ANY REAL CHANCE OF
AUTOLITE'S EVENTUAL SURVIVAL.  I FEAR THAT THIS IS A SITUATION WHERE
THE FORM OF PRESERVING COMPETITION HAS TAKEN PRECEDENCE OVER AN
UNDERSTANDING OF THE REALITIES OF THE PARTICULAR MARKET.  THEREFORE I
DISSENT FROM TODAY'S AFFIRMANCE OF THE DISTRICT COURT'S HARSHLY
RESTRICTIVE REMEDIAL PROVISIONS.  /5/ 

/1/  OF COURSE, THE DECLINE WOULD TAKE A NUMBER OF YEARS, SINCE IT
WOULD BE SPREAD OVER THE LIFE OF THE CARS ON THE ROAD BEARING THE
PRODUCER'S PLUGS AS ORIGINAL EQUIPMENT-- PROBABLY FIVE TO EIGHT YEARS. 

/2/  MR. JUSTICE STEWART, CONCURRING IN THE RESULT, RELIES ON
FACTUAL ASSUMPTIONS THAT SEEM TO ME DIRECTLY CONTRARY TO FINDINGS MADE
BY THE DISTRICT COURT.  WHILE THAT COURT FOUND FUTURE DEVELOPMENTS
MIGHT ARISE IN THE PLUG MARKET THAT WOULD ENABLE AN INDEPENDENT
AUTOLITE WITHOUT OE STATUS TO SURVIVE, IT ALSO FOUND THAT AN
INDEPENDENT ENTRY BY FORD IN 1960, OR EVEN AS OF THE DATE OF THE
PROJECTED DIVESTITURE, WOULD HAVE LEFT AUTOLITE DOOMED BECAUSE THE
MARKET WOULD NOT YET BE READY TO OFFER IT AN INDEPENDENT NICHE.  BY
SLIGHTING THESE FINDINGS, MR. JUSTICE STEWART IS ABLE TO AVOID THE
QUESTION WHETHER FORD SHOULD HAVE TO BEAR THE BURDEN OF MAINTAINING
AUTOLITE'S LIFE UNTIL A TIME WHEN MARKET CHANGES MIGHT SUPPORT IT WHEN
IT IS CLEAR THAT AN EARLIER INDEPENDENT ENTRY BY FORD WOULD HAVE LEFT
IT MORIBUND.  HE FURTHER OVERLOOKS THE PROBLEMS DISCUSSED BELOW AS TO
THE UNLIKELIHOOD OF AUTOLITE'S SUCCESS, ITS FIXED-PRODUCTION NEEDS
VERSUS THE SMALL SIZE OF THE MARKET FREE OF THE OE TIE. 

/3/  THE DISTRICT COURT MADE NO MENTION OF WHETHER A DIVESTED
AUTOLITE WOULD HAVE THE SIX REGIONAL OFFICES AND PERSONNEL THAT IT HAD
IN 1960.  GIVEN THE DISTRICT COURT'S SOLICITUDE FOR AUTOLITE'S HEALTH,
I CAN ONLY ASSUME THAT IT EXPECTED AUTOLITE TO BE SENT OUT WITH
WHATEVER IT HAD BROUGHT IN. 

/4/  THE MAJORITY OPINION ERRS IN ITS EVALUATION, ANTE, AT 577, OF
THE EFFECT OF THE RESTRICTIONS ON FORD'S ABILITY TO ESTABLISH ITSELF IN
THE AFTERMARKET.  THE DISTRICT COURT OPINION MAKES CLEAR THAT GAINING A
POSITION IN THE REPLACEMENT MARKET TAKES FIVE TO EIGHT YEARS AFTER THE
BRAND OF PLUGS IS FIRST INSTALLED AS ORIGINAL EQUIPMENT:  18 MONTHS TO
THREE YEARS BEFORE THE FIRST CARS NEED PLUG REPLACEMENTS PLUS SEVERAL
ANNUAL CAR POPULATIONS REQUIRING THIS BRAND BEFORE SERVICE CENTERS
WOULD BE MOTIVATED TO STOCK IT.  THUS, THE PROHIBITION AGAINST FORD'S
USING ITS OWN NAME FOR FIVE YEARS DELAYS THE BEGINNING OF AN
INDEPENDENT FORD ENTRY AND RESULTS IN ASSURING THAT FORD COULD NOT GAIN
A POSITION IN THE AFTERMARKET FOR 10 TO 13 YEARS AFTER THE EFFECTIVE
DATE OF THE DIVESTITURE. 

/5/  THIS CASE ILLUSTRATES THE UNSOUNDNESS OF THE DIRECT APPEAL
PERMITTING IN CASES OF THIS KIND UNDER 15 U.S.C. 29.  IN A FACTUALLY
COMPLICATED CASE LIKE THIS, WE WOULD BE IMMEASURABLY AIDED BY THE
SCREENING PROCESS PROVIDED BY A COURT OF APPEALS REVIEW.  LIMITED
EXPEDITING OF SUCH CASES, UNDER THE DISCRETION OF THIS COURT, WOULD
SATISFY ALL NEEDS JUSTIFYING DIRECT REVIEW IN THIS COURT. 

MR. JUSTICE BLACKMUN, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN PART I OF THE COURT'S OPINION AND IN THAT PORTION OF
PART II THAT APPROVES DIVESTITURE AS PART OF THE REMEDY.  I CANNOT
AGREE, HOWEVER, THAT PROHIBITING FORD FROM USING ITS OWN NAME OR ITS
TRADE NAME ON ANY SPARK PLUGS FOR FIVE YEARS AND ENJOINING IT ENTIRELY
FROM MANUFACURING PLUGS FOR 10 YEARS IS JUST, EQUITABLE, OR NECESSARY. 
INSTEAD, THE STRINGENCY OF THOSE REMEDIAL PROVISIONS STRIKES ME AS
CONFISCATORY AND PUNITIVE.  THE COURT'S OPINION, ANTE, AT 566,
RECOGNIZES THAT FORD COULD DEVELOP ITS OWN SPARK PLUG DIVISION
INTERNALLY AND PLACE ITSELF IN THE SAME POSITION GENERAL MOTORS HAS
OCCUPIED FOR SO LONG, BUT THAT THIS WOULD TAKE FROM FIVE TO EIGHT
YEARS.  THE RESTRAINT ON FORD'S ENTERING THE SPARK PLUG AREA IS THUS
FOR A PERIOD LONGER THAN IT WOULD TAKE FORD TO ACHIEVE A POSITION IN
THE MARKET THROUGH INTERNAL DEVELOPMENT.  AND TO DENY IT THE USE OF ITS
OWN NAME IS TO DENY IT A PROPERTY RIGHT THAT HAS LITTLE TO DO WITH THIS
LITIGATION. 

WHITNEY NORTH SEYMOUR ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON
THE BRIEFS WERE ELEANOR M. FOX, MICHAEL R. GOLDENBERG, GEORGE H.
HEMPSTEAD III, AND L. HOMER SURBECK. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL MCLAREN, WM. TERRY BRAY, IRWIN A. SEIBEL,
AND WILLIAM H. MCMANUS. 

MELVIN LASHNER FILED A BRIEF FOR ZENITH VINYL FABRICS CORP. AS
AMICUS CURIAE. 
..END :



















UNITED STATES V. TOPCO ASSOCIATES, 405 U.S. 596 


       UNITED STATES V. TOPCO ASSOCIATES, INC.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

     NORTHERN DISTRICT OF ILLINOIS

        NO. 70-82.  ARGUED NOVEMBER 16, 1971-- DECIDED MARCH 29,

           1972 


THE UNITED STATES BROUGHT THIS INJUNCTION ACTION CHARGING A VIOLATION
OF SEC. 1 OF THE SHERMAN ACT BY APPELLEE, TOPCO, A COOPERATIVE
ASSOCIATION OF ABOUT 25 SMALL AND MEDIUM-SIZED INDEPENDENT REGIONAL
SUPERMARKET CHAINS OPERATING IN 33 STATES.  AS ITS MEMBERS'  PURCHASING
AGENT APPELLEE PROCURES MORE THAN 1,000 DIFFERENT ITEMS, MOST OF WHICH
HAVE BRAND NAMES OWNED BY TOPCO.  THE MEMBERS' COMBINED RETAIL SALES IN
1967 WERE $2.3 BILLION, EXCEEDED BY ONLY THREE NATIONAL GROCERY
CHAINS.  A MEMBER'S AVERAGE MARKET SHARE IN ITS AREA IS ABOUT 6% AND
ITS COMPETITIVE POSITION IS FREQUENTLY AS STRONG AS THAT OF ANY OTHER
CHAIN.  THE MEMBERS OWN EQUAL AMOUNTS OF TOPCO'S COMMON STOCK (THE
VOTING STOCK), CHOOSE ITS DIRECTORS, AND COMPLETELY CONTROL THE
ASSOCIATION'S OPERATIONS.  TOPCO'S BYLAWS ESTABLISH AN "EXCLUSIVE"
CATEGORY OF TERRITORIAL LICENSES, UNDER WHICH MOST MEMBERS' LICENSES
ARE ISSUED AND THE TWO OTHER MEMBERSHIP CATEGORIES HAVE PROVED TO BE DE
FACTO EXCLUSIVE.  SINCE NO MEMBER UNDER THIS SYSTEM MAY SELL TOPCO
BRAND PRODUCTS OUTSIDE THE TERRITORY IN WHICH IT IS LICENSED, EXPANSION
INTO ANOTHER MEMBER'S TERRITORY IN WHICH IT IS LICENSED, EXPANSION INTO
ANOTHER MEMBER'S TERRITORY IS IN PRACTICE PERMITTED ONLY WITH THE OTHER
MEMBER'S CONSENT, AND SINCE A MEMBER IN EFFECT HAS A VETO POWER OVER
ADMISSION OF A NEW MEMBER, MEMBERS CAN CONTROL ACTUAL OR POTENTIAL
COMPETITION IN THE TERRITORIAL AREAS IN WHICH THEY ARE CONCERNED. 
TOPCO MEMBERS ARE PROHIBITED FROM SELLING ANY PRODUCTS SUPPLIED BY THE
ASSOCIATION AT WHOLESALE, WHETHER TRADEMARKED OR NOT, WITHOUT SECURING
SPECIAL PERMISSION, WHICH IS NOT GRANTED WITHOUT THE CONSENT OF OTHER
INTERESTED LICENSEES (USUALLY RETAILERS) AND THEN THE MEMBERS MUST
AGREE TO RESTRICT TOPCO PRODUCT SALES TO A SPECIFIC AREA AND UNDER
CERTAIN CONDITIONS.  THE GOVERNMENT CHARGED THAT TOPCO'S SCHEME OF
DIVIDING MARKETS VIOLATES THE SHERMAN ACT BECAUSE IT OPERATES TO
PROHIBIT COMPETITION IN TOPCO-BRAND PRODUCTS AMONG RETAIL GROCERY
CHAINS, AND ALSO CHALLENGED TOPCO'S RESTRICTIONS ON WHOLESALING.  TOPCO
CONTENDED THAT IT NEEDS TERRITORIAL DIVISIONS TO MAINTAIN ITS PRIVATE
LABEL PROGRAM AND TO ENABLE IT TO COMPETE WITH THE LARGER CHAINS; THAT
THE ASSOCIATION COULD NOT EXIST IF THE TERRITORIAL DIVISIONS WERE NOT
EXCLUSIVE; AND THAT THE RESTRICTIONS ON COMPETITION IN TOPCO-BRAND
SALES ENABLE MEMBERS TO MEET LARGER CHAIN COMPETITION.  THE DISTRICT
COURT, AGREEING WITH TOPCO, UPHELD THE RESTRICTIVE PRACTICES AS
REASONABLE AND PRO-COMPETITIVE.  HELD:  THE TOPCO SCHEME OF ALLOCATING
TERRITORIES TO MINIMIZE COMPETITION AT THE RETAIL LEVEL IS A HORIZONTAL
RESTRAINT CONSTITUTING A PER SE VIOLATION OF SEC. 1 OF THE SHERMAN ACT,
AND THE DISTRICT COURT ERRED IN APPLYING A RULE OF REASON TO THE
RESTRICTIVE PRACTICES HERE INVOLVED.  UNITED STATES V. SEALY, INC., 388
U.S. 350.  TOPCO'S LIMITATIONS UPON RESELLING AT WHOLESALE ARE FOR THE
SAME REASON PER SE INVALID UNDER SEC. 1.  PP. 606-612. 

319 F.SUPP.  1031, REVERSED AND REMANDED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, STEWART, AND WHITE, JJ., JOINED.  BLACKMUN, J., FILED AN
OPINION CONCURRING IN THE RESULT, POST, P. 612.  BURGER, C.J., FILED A
DISSENTING OPINION, POST, P. 613.  POWELL AND REHNQUIST, JJ., TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS ACTION FOR INJUNCTIVE RELIEF AGAINST
ALLEGED VIOLATION BY TOPCO ASSOCIATES, INC. (TOPCO), OF SEC. 1 OF THE
SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. 1.  JURISDICTION WAS
GROUNDED IN SEC. 4 OF THE ACT, 15 U.S.C. 4.  FOLLOWING A TRIAL ON THE
MERITS, THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS ENTERED JUDGMENT FOR TOPCO, 319 F.SUPP.  1031, AND THE UNITED
STATES APPEALED DIRECTLY TO THIS COURT PURSUANT TO SEC. 2 OF THE
EXPEDITING ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C. 29.  WE NOTED
PROBABLE JURISDICTION, 402 U;S. 905 (1971), AND WE NOW REVERSE THE
JUDGMENT OF THE DISTRICT COURT. 

        I 

TOPCO IS A COOPERATIVE ASSOCIATION OF APPROXIMATELY 25 SMALL AND
MEDIUM-SIZED REGIONAL SUPERMARKET CHAINS THAT OPERATE STORES IN SOME 33
STATES.  /1/  EACH OF THE MEMBER CHAINS OPERATES INDEPENDENTLY; THERE
IS NO POOLING OF EARNINGS, PROFITS, CAPITAL, MANAGEMENT, OR ADVERTISING
RESOURCES.  NO GROCERY BUSINESS IS CONDUCTED UNDER THE TOPCO NAME.  ITS
BASIC FUNCTION IS TO SERVE AS A PURCHASING AGENT FOR ITS MEMBERS.  /2/
IN THIS CAPACITY, IT PROCURES AND DISTRIBUTES TO THE MEMBERS MORE THAN
1,000 DIFFERENT FOOD AND RELATED NONFOOD ITEMS, MOST OF WHICH ARE
DISTRIBUTED UNDER BRAND NAMES OWNED BY TOPCO.  THE ASSOCIATION DOES NOT
ITSELF OWN ANY MANUFACTURING, PROCESSING, OR WAREHOUSING FACILITIES,
AND THE ITEMS THAT IT PROCURES FOR MEMBERS ARE USUALLY SHIPPED DIRECTLY
FROM THE PACKER OR MANUFACTURER TO THE MEMBERS.  PAYMENT IS MADE EITHER
TO TOPCO OR DIRECTLY TO THE MANUFACTURER AT A COST THAT IS VIRTUALLY
THE SAME FOR THE MEMBERS AS FOR TOPCO ITSELF. 

ALL OF THE STOCK IN TOPCO IS OWNED BY THE MEMBERS, WITH THE COMMON
STOCK, THE ONLY STOCK HAVING VOTING RIGHTS, BEING EQUALLY DISTRIBUTED. 
THE BOARD OF DIRECTORS, WHICH CONTROLS THE OPERATION OF THE
ASSOCIATION, IS DRAWN FROM THE MEMBERS AND IS NORMALLY COMPOSED OF HIGH
RANKING EXECUTIVE OFFICERS OF MEMBER CHAINS.  IT IS THE BOARD THAT
ELECTS THE ASSOCIATION'S OFFICERS AND APPOINTS COMMITTEE MEMBERS, AND
IT IS FROM THE BOARD THAT THE PRINCIPAL EXECUTIVE OFFICERS OF TOPCO
MUST BE DRAWN.  RESTRICTIONS ON THE ALIENATION OF STOCK AND THE
PROCEDURE FOR SELECTING ALL IMPORTANT OFFICIALS OF THE ASSOCIATION FROM
WITHIN THE RANKS OF ITS MEMBERS GIVE THE MEMBERS COMPLETE AND
UNFETTERED CONTROL OVER THE OPERATIONS OF THE ASSOCIATION. 

TOPCO WAS FOUNDED IN THE 1940'S BY A GROUP OF SMALL, LOCAL GROCERY
CHAINS, INDEPENDENTLY OWNED AND OPERATED, THAT DESIRED TO COOPERATE TO
OBTAIN HIGH QUALITY MERCHANDISE UNDER PRIVATE LABELS IN ORDER TO
COMPETE MORE EFFECTIVELY WITH LARGER NATIONAL AND REGIONAL CHAINS.  /3/
WITH A LINE OF CANNED, DAIRY, AND OTHER PRODUCTS, THE ASSOCIATION
BEGAN.  IT ADDED FROZEN FOODS IN 1950, FRESH PRODUCE IN 1958, MORE
GENERAL MERCHANDISE EQUIPMENT AND SUPPLIES IN 1960, AND A BRANDED BACON
AND CARCASS BEEF SELECTION PROGRAM IN 1966.  BY 1964, TOPCO'S MEMBERS
HAD COMBINED RETAIL SALES OF MORE THAN $2 BILLION; BY 1967, THEIR SALES
TOTALED MORE THAN $2.3 BILLION, A FIGURE EXCEEDED BY ONLY THREE
NATIONAL GROCERY CHAINS.  /4/ 

MEMBERS OF THE ASSOCIATION VARY IN THE DEGREE OF MARKET SHARE THAT
THEY POSSESS IN THEIR RESPECTIVE AREAS.  THE RANGE IS FROM 1.5% TO 16%,
WITH THE AVERAGE BEING APPROXIMATELY 6%.  WHILE IT IS DIFFICULT TO
COMPARE THESE FIGURES WITH THE MARKET SHARES OF LARGER REGIONAL AND
NATIONAL CHAINS BECAUSE OF THE ABSENCE IN THE RECORD OF ACCURATE
STATISTICS FOR THESE CHAINS, THERE IS MUCH EVIDENCE IN THE RECORD THAT
TOPCO MEMBERS ARE FREQUENTLY IN AS STRONG A COMPETITIVE POSITION IN
THEIR RESPECTIVE AREAS AS ANY OTHER CHAIN.  THE STRENGTH OF THIS
COMPETITIVE POSITION IS DUE, IN SOME MEASURE, TO THE SUCCESS OF TOPCO
BRAND PRODUCTS.  ALTHOUGH ONLY 10% OF THE TOTAL GOODS SOLD BY TOPCO
MEMBERS BEAR THE ASSOCIATION'S BRAND NAMES, THE PROFIT ON THESE GOODS
IS SUBSTANTIAL AND THEIR VERY EXISTENCE HAS IMPROVED THE COMPETITIVE
POTENTIAL OF TOPCO MEMBERS WITH RESPECT TO OTHER LARGE AND POWERFUL
CHAINS. 

IT IS APPARENT THAT FROM MEAGER BEGINNINGS APPROXIMATELY A QUARTER
OF A CENTURY AGO, TOPCO HAS DEVELOPED INTO A PURCHASING ASSOCIATION
WHOLLY OWNED AND OPERATED BY MEMBER CHAINS, WHICH POSSESS MUCH ECONOMIC
MUSCLE, INDIVIDUALLY AS WELL AS COOPERATIVELY. 

        II 


     "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 . . . . "

THE UNITED STATES CHARGED THAT, BEGINNING AT LEAST AS EARLY AS 1960 AND
CONTINUING UP TO THE TIME THAT THE COMPLAINT WAS FILED, TOPCO HAD
COMBINED AND CONSPIRED WITH ITS MEMBERS TO VIOLATE SEC. 1 /5/  IN TWO
RESPECTS.  FIRST, THE GOVERNMENT ALLEGED THAT THERE EXISTED: 

"A CONTINUING AGREEMENT, UNDERSTANDING AND CONCERT OF ACTION AMONG
THE CO-CONSPIRATOR MEMBER FIRMS ACTING THROUGH TOPCO, THE SUBSTANTIAL
TERMS OF WHICH HAVE BEEN AND ARE THAT EACH CO-CONSPIRATOR MEMBER FIRM
WILL SELL TOPCO-CONTROLLED BRANDS ONLY WITHIN THE MARKETING TERRITORY
ALLOCATED TO IT, AND WILL REFRAIN FROM SELLING TOPCO-CONTROLLED BRANDS
OUTSIDE SUCH MARKETING TERRITORY."  THE DIVISION OF MARKETING
TERRITORIES TO WHICH THE COMPLAINT REFERS CONSISTS OF A NUMBER OF
PRACTICES BY THE ASSOCIATION. 

ARTICLE IX, SEC. 2, OF THE TOPCO BYLAWS ESTABLISHED THREE CATEGORIES
OF TERRITORIAL LICENSES THAT MEMBERS MAY SECURE FROM THE ASSOCIATION: 

     "(A) EXCLUSIVE-- AN EXCLUSIVE TERRITORY IS ONE IN WHICH THE

  MEMBER IS LICENSED TO SELL ALL PRODUCTS BEARING SPECIFIED

  TRADEMARKS OF THE ASSOCIATION, TO THE EXCLUSION OF ALL OTHER

  PERSONS. 

     "(B) NON-EXCLUSIVE-- A NON-EXCLUSIVE TERRITORY IS ONE IN WHICH

  A MEMBER IS LICENSED TO SELL ALL PRODUCTS BEARING SPECIFIED

  TRADEMARKS OF THE ASSOCIATION, BUT NOT TO THE EXCLUSION OF OTHERS

  WHO MAY ALSO BE LICENSED TO SELL PRODUCTS BEARING THE SAME

  TRADEMARKS OF THE ASSOCIATION IN THE SAME TERRITORY. 

     "(C) COEXTENSIVE-- A COEXTENSIVE TERRITORY IS ONE IN WHICH TWO

  (2) OR MORE MEMBERS ARE LICENSED TO SELL ALL PRODUCTS BEARING

  SPECIFIED TRADEMARKS OF THE ASSOCIATION TO THE EXCLUSION OF ALL

  OTHER PERSONS.  . . . "

WHEN APPLYING FOR MEMBERSHIP, A CHAIN MUST DESIGNATE THE TYPE OF
LICENSE THAT IT DESIRES.  MEMBERSHIP MUST FIRST BE APPROVED BY THE
BOARD OF DIRECTORS, AND THEREAFTER BY AN AFFIRMATIVE VOTE OF 75% OF THE
ASSOCIATION'S MEMBERS.  IF, HOWEVER, THE MEMBER WHOSE OPERATIONS ARE
CLOSEST TO THOSE OF THE APPLICANT, OR ANY MEMBER WHOSE OPERATIONS ARE
LOCATED WITHIN 100 MILES OF THE APPLICANT, VOTES AGAINST APPROVAL, AN
AFFIRMATIVE VOTE OF 85% OF THE MEMBERS IS REQUIRED FOR APPROVAL. 
BYLAWS, ART. I, SEC. 5.  BECAUSE, AS INDICATED BY THE RECORD, MEMBERS
COOPERATE IN ACCOMMODATING EACH OTHER'S WISHES, THE PROCEDURE FOR
APPROVAL PROVIDES, IN ESSENCE, THAT MEMBERS HAVE A VETO OF SORTS OVER
ACTUAL OR POTENTIAL COMPETITION IN THE TERRITORIAL AREAS IN WHICH THEY
ARE CONCERNED. 

FOLLOWING APPROVAL, EACH NEW MEMBER SIGNS AN AGREEMENT WITH TOPCO
DESIGNATING THE TERRITORY IN WHICH THAT MEMBER MAY SELL TOPCO-BRAND
PRODUCTS.  NO MEMBER MAY SELL THESE PRODUCTS OUTSIDE THE TERRITORY IN
WHICH IT IS LICENSED.  MOST LICENSES ARE EXCLUSIVE, AND EVEN THOSE
DENOMINATED "COEXTENSIVE" OR "NON-EXCLUSIVE" PROVE TO BE DE FACTO
EXCLUSIVE.  EXCLUSIVE TERRITORIAL AREAS ARE OFTEN ALLOCATED TO MEMBERS
WHO DO NO ACTUAL BUSINESS IN THOSE AREAS ON THE THEORY THAT THEY MAY
WISH TO EXPAND AT SOME INDEFINITE FUTURE TIME AND THAT EXPANSION WOULD
LIKELY BE IN THE DIRECTION OF THE ALLOCATED TERRITORY.  WHEN COMBINED
WITH EACH MEMBER'S VETO POWER OVER NEW MEMBERS, PROVISIONS FOR
EXCLUSIVITY WORK EFFECTIVELY TO INSULATE MEMBERS FROM COMPETITION IN
TOPCO-BRAND GOODS.  SHOULD A MEMBER VIOLATE ITS LICENSE AGREEMENT AND
SELL IN AREAS OTHER THAN THOSE IN WHICH IT IS LICENSED, ITS MEMBERSHIP
CAN BE TERMINATED UNDER ART. IV, SECS. 2(A) AND 2(B) OF THE BYLAWS. 
ONCE A TERRITORY IS CLASSIFIED AS EXCLUSIVE, EITHER FORMALLY OR DE
FACTO, IT IS EXTREMELY UNLIKELY THAT THE CLASSIFICATION WILL EVER BE
CHANGED.  SEE BYLAWS, ART. IX. 

THE GOVERNMENT MAINTAINS THAT THIS SCHEME OF DIVIDING MARKETS
VIOLATES THE SHERMAN ACT BECAUSE IT OPERATES TO PROHIBIT COMPETITION IN
TOPCO-BRAND PRODUCTS AMONG GROCERY CHAINS ENGAGED IN RETAIL
OPERATIONS.  THE GOVERNMENT ALSO MAKES A SUBSIDIARY CHALLENGE TO
TOPCO'S PRACTICES REGARDING LICENSING MEMBERS TO SELL AT WHOLESALE. 
UNDER THE BYLAWS, MEMBERS ARE NOT PERMITTED TO SELL ANY PRODUCTS
SUPPLIED BY THE ASSOCIATION AT WHOLESALE, WHETHER TRADEMARKED OR NOT,
WITHOUT FIRST APPLYING FOR AND RECEIVING SPECIAL PERMISSION FROM THE
ASSOCIATION TO DO SO.  /6/  BEFORE PERMISSION IS GRANTED, OTHER
LICENSEES (USUALLY RETAILERS), WHOSE INTERESTS MAY POTENTIALLY BE
AFFECTED BY WHOLESALE OPERATIONS, ARE CONSULTED AS TO THEIR WISHES IN
THE MATTER.  IF PERMISSION IS OBTAINED, THE MEMBER MUST AGREE TO
RESTRICT THE SALE OF TOPCO PRODUCTS TO A SPECIFIC GEOGRAPHIC AREA AND
TO SELL UNDER ANY CONDITIONS IMPOSED BY THE ASSOCIATION.  PERMISSION TO
WHOLESALE HAS OFTEN BEEN SOUGHT BY MEMBERS, ONLY TO BE DENIED BY THE
ASSOCIATION.  THE GOVERNMENT CONTENDS THAT THIS AMOUNTS NOT ONLY TO A
TERRITORIAL RESTRICTION VIOLATIVE OF THE SHERMAN ACT, BUT ALSO TO A
RESTRICTION ON CUSTOMERS THAT IN ITSELF IS VIOLATIVE OF THE ACT.  /7/ 

FROM THE INCEPTION OF THIS LAWSUIT, TOPCO ACCEPTED AS TRUE MOST OF
THE GOVERNMENT'S ALLEGATIONS REGARDING TERRITORIAL DIVISIONS AND
RESTRICTIONS ON WHOLESALING, ALTHOUGH IT DIFFERED GREATLY WITH THE
GOVERNMENT ON THE CONCLUSIONS, BOTH FACTUAL AND LEGAL, TO BE DRAWN FROM
THESE FACTS. 

TOPCO'S ANSWER TO THE COMPLAINT IS ILLUSTRATIVE OF ITS POSTURE IN
THE DISTRICT COURT AND BEFORE THIS COURT: 

"PRIVATE LABEL MERCHANDISING IS A WAY OF ECONOMIC LIFE IN THE

  FOOD RETAILING INDUSTRY, AND EXCLUSIVITY IS THE ESSENCE OF A

  PRIVATE LABEL PROGRAM; WITHOUT EXCLUSIVITY, A PRIVATE LABEL WOULD

  NOT BE PRIVATE.  EACH NATIONAL AND LARGE REGIONAL CHAIN HAS ITS

  OWN EXCLUSIVE PRIVATE LABEL PRODUCTS IN ADDITION TO THE

  NATIONALLY ADVERTISED BRANDS WHICH ALL CHAINS SELL.  EACH SUCH

  CHAIN RELIES UPON THE EXCLUSIVITY OF ITS OWN PRIVATE LABEL LINE

  TO DIFFERENTIATE ITS PRIVATE LABEL PRODUCTS FROM THOSE OF ITS

  COMPETITORS AND TO ATTRACT AND RETAIN THE REPEAT BUSINESS AND

  LOYALTY OF CONSUMERS.  SMALLER RETAIL GROCERY STORES AND CHAINS

 ARE UNABLE TO COMPLETE EFFECTIVELY WITH THE NATIONAL AND LARGE

  REGIONAL CHAINS WITHOUT ALSO OFFERING THEIR OWN EXCLUSIVE PRIVATE

  LABEL PRODUCTS. 

        .          .          .          . 

     "THE ONLY FEASIBLE METHOD BY WHICH TOPCO CAN PROCURE PRIVATE

  LABEL PRODUCTS AND ASSURE THE EXCLUSIVITY THEREOF IS THROUGH

  TRADEMARK LICENSES SPECIFYING THE TERRITORY IN WHICH EACH MEMBER

  MAY SELL SUCH TRADEMARKED PRODUCTS."  ANSWER, APP. 11. 

TOPCO ESSENTIALLY MAINTAINS THAT IT NEEDS TERRITORIAL DIVISIONS TO
COMPETE WITH LARGER CHAINS; THAT THE ASSOCIATION COULD NOT EXIST IF THE
TERRITORIAL DIVISIONS WERE ANYTHING BUT EXCLUSIVE; AND THAT BY
RESTRICTING COMPETITION IN SALE OF TOPCO-BRAND GOODS, THE ASSOCIATION
ACTUALLY INCREASES COMPETITION BY ENABLING ITS MEMBERS TO COMPETE
SUCCESSFULLY WITH LARGER REGIONAL AND NATIONAL CHAINS. 

THE DISTRICT COURT, CONSIDERING ALL THESE THINGS RELEVANT TO ITS
DECISION, AGREED WITH TOPCO.  IT RECOGNIZED THAT THE PANOPLY OF
RESTRAINTS THAT TOPCO IMPOSED ON ITS MEMBERS WORKED TO PREVENT
COMPETITION IN TOPCO-BRAND PRODUCTS, /8/  BUT CONCLUDED THAT 

"(WHATEVER ANTI-COMPETITIVE EFFECT THESE PRACTICES MAY HAVE ON
COMPETITION IN THE SALE OF TOPCO PRIVATE LABEL BRANDS IS FAR OUTWEIGHED
BY THE INCREASED ABILITY OF TOPCO MEMBERS TO COMPETE BOTH WITH THE
NATIONAL CHAINS AND OTHER SUPERMARKETS OPERATING IN THEIR RESPECTIVE
TERRITORIES."  319 F.SUPP, 1031, 1043 (1970).  THE COURT HELD THAT
TOPCO'S PRACTICES WERE PROCOMPETITIVE AND, THEREFORE, CONSISTENT WITH
THE PURPOSES OF THE ANTITRUST LAWS.  BUT WE CONCLUDE THAT THE DISTRICT
COURT USED AN IMPROPER ANALYSIS IN REACHING ITS RESULT. 

        III 

ON ITS FACE, SEC. 1 OF THE SHERMAN ACT APPEARS TO BAR ANY COMBINATION
OF ENTREPRENEURS SO LONG AS IT IS "IN RESTRAINT OF TRADE." 
THEORETICALLY, ALL MANUFACTURERS, DISTRIBUTORS, MERCHANTS, SELLERS, AND
BUYERS COULD BE CONSIDERED AS POTENTIAL COMPETITORS OF EACH OTHER. 
WERE SEC. 1 TO BE READ IN THE NARROWEST POSSIBLE WAY, ANY COMMERCIAL
CONTRACT COULD BE DEEMED TO VIOLATE IT.  CHICAGO BOARD OF TRADE V.
UNITED STATES, 246 U.S. 231, 238 (1918) (BRANDEIS, J.).  THE HISTORY
UNDERLYING THE FORMULATION OF THE ANTITRUST LAWS LED THIS COURT TO
CONCLUDE, HOWEVER, THAT CONGRESS DID NOT INTEND TO PROHIBIT ALL
CONTRACTS, NOR EVEN ALL CONTRACTS THAT MIGHT IN SOME INSIGNIFICANT
DEGREE OR ATTENUATED SENSE RESTRAIN TRADE OR COMPETITION.  IN LIEU OF
THE NARROWEST POSSIBLE READING OF SEC. 1, THE COURT ADOPTED A "RULE OF
REASON" ANALYSIS FOR DETERMINING WHETHER MOST BUSINESS COMBINATIONS OR
CONTRACTS VIOLATE THE PROHIBITIONS OF THE SHERMAN ACT.  STANDARD OIL
CO. V. UNITED STATES, 221 U.S. 1 (1911).  AN ANALYSIS OF THE
REASONABLENESS OF PARTICULAR RESTRAINTS INCLUDES CONSIDERATION OF THE
FACTS PECULIAR TO THE BUSINESS IN WHICH THE RESTRAINT IS APPLIED, THE
NATURE OF THE RESTRAINT AND ITS EFFECTS, AND THE HISTORY OF THE
RESTRAINT AND THE REASONS FOR ITS ADOPTION.  CHICAGO BOARD OF TRADE V.
UNITED STATES, SUPRA, AT 238.     WHILE THE COURT HAS UTILIZED THE
"RULE OF REASON" IN EVALUATING THE LEGALITY OF MOST RESTRAINTS ALLEGED
TO BE VIOLATIVE OF THE SHERMAN ACT, IT HAS ALSO DEVELOPED THE DOCTRINE
THAT CERTAIN BUSINESS RELATIONSHIPS ARE PER SE VIOLATIONS OF THE ACT
WITHOUT REGARD TO A CONSIDERATION OF THEIR REASONABLENESS.  IN NORTHERN
PACIFIC R. CO. V. UNITED STATES, 356 U.S. 1, 5 (1958), MR. JUSTICE
BLACK EXPLAINED THE APPROPRIATENESS OF, AND THE NEED FOR, PER SE
RULES: 

     "(THERE ARE CERTAIN AGREEMENTS OR PRACTICES WHICH BECAUSE OF

  THEIR PERNICIOUS EFFECT ON COMPETITION AND LACK OF ANY REDEEMING

  VIRTUE ARE CONCLUSIVELY PRESUMED TO BE UNREASONABLE AND THEREFORE

  ILLEGAL WITHOUT ELABORATE INQUIRY AS TO THE PRECISE HARM THEY

  HAVE CAUSED OR THE BUSINESS EXCUSE FOR THEIR USE.  THIS PRINCIPLE

  OF PER SE UNREASONABLENESS NOT ONLY MAKES THE TYPE OF RESTRAINTS

  WHICH ARE PROSCRIBED BY THE SHERMAN ACT MORE CERTAIN TO THE

  BENEFIT OF EVERYONE CONCERNED, BUT IT ALSO AVOIDS THE NECESSITY

  FOR AN INCREDIBLY COMPLICATED AND PROLONGED ECONOMIC

  INVESTIGATION INTO THE ENTIRE HISTORY OF THE INDUSTRY INVOLVED,

  AS WELL AS RELATED INDUSTRIES, IN AN EFFORT TO DETERMINE AT LARGE

  WHETHER A PARTICULAR RESTRAINT HAS BEEN UNREASONABLE-- AN INQUIRY

  SO OFTEN WHOLLY FRUITLESS WHEN UNDERTAKEN." 

IT IS ONLY AFTER CONSIDERABLE EXPERIENCE WITH CERTAIN BUSINESS
RELATIONSHIPS THAT COURTS CLASSIFY THEM AS PER SE VIOLATIONS OF THE
SHERMAN ACT.  SEE GENERALLY VAN CISE, THE FUTURE OF PER SE IN ANTITURST
LAW, 50 VA.L.REV.  1165 (1964).  ONE OF THE CLASSIC EXAMPLES OF A PER
SE VIOLATION OF SEC. 1 IS AN AGREEMENT BETWEEN COMPETITORS AT THE SAME
LEVEL OF THE MARKET STRUCTURE TO ALLOCATE TERRITORIES IN ORDER TO
MINIMIZE COMPETITION.  SUCH CONCERTED ACTION IS USUALLY TERMED A
"HORIZONTAL" RESTRAINT, IN CONTRADISTINCTION TO COMBINATIONS OF PERSONS
AT DIFFERENT LEVELS OF THE MARKET STRUCTURE TO ALLOCATE TERRITORIES IN
ORDER TO MINIMIZE COMPETITION.  SUCH CONCERTED ACTION IS USUALLY TERMED
A "HORIZONTAL" RESTRAINT, IN CONTRADISTINCTION TO COMBINATIONS OF
PERSONS AT DIFFERENT LEVELS OF THE MARKET STRUCTURE, E.G.,
MANUFACTURERS AND DISTRIBUTORS, WHICH ARE TERMED "VERTICAL"
RESTRAINTS.  THIS COURT HAS REITERATED TIME AND TIME AGAIN THAT
"(HORIZONTAL TERRITORIAL LIMITATIONS . . . ARE NAKED RESTRAINTS OF
TRADE WITH NO PURPOSE EXCEPT STIFLING OF COMPETITION."  WHITE MOTOR CO.
V. UNITED STATES, 372 U.S. 253, 263 (1963).  SUCH LIMITATIONS ARE PER
SE VIOLATIONS OF THE SHERMAN ACT.  SEE ADDYSTON PIPE & STEEL CO. V.
UNITED STATES, 175 U.S. 211 (1899), AFF'G 85 F. 271 (CA6 1898) (TAFT,
J.); UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319 (1947); TIMKEN
ROLLER BEARING CO. V. UNITED STATES, 341 U.S; 593 (1951); NORTHERN
PACIFIC R. CO. V. UNITED STATES, SUPRA; CITIZEN PUBLISHING CO. V.
UNITED STATES, 394 U.S. 131 (1969); UNITED STATES V. SEALY, INC., 388
U.S. 350 (1967); UNITED STATES V. ARNOLD, SCHWINN & CO., 388 U.S. 365,
390 (1967) (STEWART, J., CONCURRING IN PART AND DISSENTING IN PART);
SERTA ASSOCIATES, INC. V. UNITED STATES, 393 U.S. 534 (1969), AFF'G 296
F.SUPP.  1121, 1128 (ND ILL. 1968). 

WE THINK THAT IT IS CLEAR THAT THE RESTRAINT IN THIS CASE IS A
HORIZONTAL ONE, AND, THEREFORE, A PER SE VIOLATION OF SEC. 1.  THE
DISTRICT COURT FAILED TO MAKE ANY DETERMINATION AS TO WHETHER THERE
WERE PER SE HORIZONTAL TERRITORIAL RESTRAINTS IN THIS CASE AND SIMPLY
APPLIED A RULE OF REASON IN REACHING ITS CONCLUSIONS THAT THE
RESTRAINTS WERE NOT ILLEGAL.  SEE, E.G., COMMENT, HORIZONTAL
TERRITORIAL RESTRAINTS AND THE PER SE RULE, 28 WASH. & LEE L.REV.  457,
469 (1971).  IN SO DOING, THE DISTRICT COURT ERRED. 

UNITED STATES V. SEALY, INC., SUPRA, IS, IN FACT, ON ALL FOURS WITH
THIS CASE.  SEALY LICENSED MANUFACTURERS OF MATTRESSES AND BEDDING TO
MAKE AND SELL PRODUCTS USING THE SEALY TRADEMARK.  LIKE TOPCO, SEALY
WAS A CORPORATION OWNED ALMOST ENTIRELY BY ITS LICENSEES, WHO ELECTED
THE BOARD OF DIRECTORS AND CONTROLLED THE BUSINESS.  JUST AS IN THIS
CASE, SEALY AGREED WITH THE LICENSEES NOT TO LICENSE OTHER
MANUFACTURERS OR SELLERS TO SELL SEALY-BRAND PRODUCTS IN A DESIGNATED
TERRITORY IN EXCHANGE FOR THE PROMISE OF THE LICENSE WHO SOLD IN THAT
TERRITORY NOT TO EXPAND ITS SALES BEYOND THE AREA DEMARCATED BY SEALY. 
THE COURT HELD THAT THIS WAS A HORIZONTAL TERRITORIAL RESTRAINT, WHICH
WAS PER SE VIOLATIVE OF THE SHERMAN ACT.  /9/ 

WHETHER OR NOT WE WOULD DECIDE THIS CASE THE SAME WAY UNDER THE RULE
OF REASON USED BY THE DISTRICT COURT IS IRRELEVANT TO THE ISSUE BEFORE
US.  THE FACT IS THAT COURTS ARE OF LIMITED UTILITY IN EXAMINING
DIFFICULT ECONOMIC PROBLEMS.  /10/  OUR INABILITY TO WEIGH, IN ANY
MEANINGFUL SENSE, DESTRUCTION OF COMPETITION IN ONE SECTOR OF THE
ECONOMY AGAINST PROMOTION OF COMPETITION IN ANOTHER SECTOR IS ONE
IMPORTANT REASON WE HAVE FORMULATED PER SE RULES. 

IN APPLYING THESE RIGID RULES, THE COURT HAS CONSISTENTLY REJECTED
THE NOTION THAT NAKED RESTRAINTS OF TRADE ARE TO BE TOLERATED BECAUSE
THEY ARE WELL INTENDED OR BECAUSE THEY ARE ALLEGEDLY DEVELOPED TO
INCREASE COMPETITION.  E.G., UNITED STATES V. GENERAL MOTORS CORP., 384
U.S. 127, 146-147 (1966); UNITED STATES V. MASONITE CORP., 316 U.S. 265
(1942); FASHION ORIGINATORS' GUILD V. FTC, 312 U.S. 457 (1941). 

ANTITRUST LAWS IN GENERAL, AND THE SHERMAN ACT IN PARTICULAR, ARE
THE MAGNA CARTA OF FREE ENTERPRISE.  THEY ARE AS IMPORTANT TO THE
PRESERVATION OF ECONOMIC FREEDOM AND OUR FREE-ENTERPRISE SYSTEM AS THE
BILL OF RIGHTS IS TO THE PROTECTION OF OUR FUNDAMENTAL PERSONAL
FREEDOMS.  AND THE FREEDOM GUARANTEED EACH AND EVERY BUSINESS, NO
MATTER HOW SMALL, IS THE FREEDOM TO COMPETE-- TO ASSERT WITH VIGOR,
IMAGINATION, DEVOTION, AND INGENUITY WHATEVER ECONOMIC MUSCLE IT CAN
MUSTER.  IMPLICIT IN SUCH FREEDOM IS THE NOTION THAT IT CANNOT BE
FORECLOSED WITH RESPECT TO ONE SECTOR OF THE ECONOMY BECAUSE CERTAIN
PRIVATE CITIZENS OR GROUPS BELIEVE THAT SUCH FORECLOSURE MIGHT PROMOTE
GREATER COMPETITION IN A MORE IMPORTANT SECTOR OF THE ECONOMY.  CF.
UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 371 (1963). 

THE DISTRICT COURT DETERMINED THAT BY LIMITING THE FREEDOM OF ITS
INDIVIDUAL MEMBERS TO COMPETE WITH EACH OTHER, TOPCO WAS DOING A
GREATER GOOD BY FOSTERING COMPETITION BETWEEN MEMBERS AND OTHER LARGE
SUPERMARKET CHAINS.  BUT, THE FALLACY IN THIS IS THAT TOPCO HAS NO
AUTHORITY UNDER THE SHERMAN ACT TO DETERMINE THE RESPECTIVE VALUES OF
COMPETITION IN VARIOUS SECTORS OF THE ECONOMY.  ON THE CONTRARY, THE
SHERMAN ACT GIVES TO EACH TOPCO MEMBER AND TO EACH PROSPECTIVE MEMBER
THE RIGHT TO ASCERTAIN FOR ITSELF WHETHER OR NOT COMPETITION WITH OTHER
SUPERMARKET CHAINS IS MORE DESIRABLE THAN COMPETITION IN THE SALE OF
TOPCO-BRAND PRODUCTS.  WITHOUT TERRITORIAL RESTRICTIONS, TOPCO MEMBERS
MAY INDEED "(CUT) EACH OTHER'S THROATS."  CF. WHITE MOTOR CO., SUPRA,
AT 278 (CLARK, J., DISSENTING).  BUT, WE HAVE NEVER FOUND THIS
POSSIBILITY SUFFICIENT TO WARRANT CONDONING HORIZONTAL RESTRAINTS OF
TRADE. 

THE COURT HAS PREVIOUSLY NOTED WITH RESPECT TO PRICE FIXING, ANOTHER
PER SE VIOLATION OF THE SHERMAN ACT, THAT: 

"THE REASONABLE PRICE FIXED TODAY MAY THROUGH ECONOMIC AND BUSINESS
CHANGES BECOME THE UNREASONABLE PRICE OF TOMORROW.  ONCE ESTABISHED, IT
MAY BE MAINTAINED UNCHANGED BECAUSE OF THE ABSENCE OF COMPETITION
SECURED BY THE AGREEMENT FOR A PRICE REASONABLE WHEN FIXED."  UNITED
STATES V. TRENTON POTTERIES CO., 273 U.S. 392, 397 (1927).  A SIMILAR
OBSERVATION CAN BE MADE WITH REGARD TO TERRITORIAL LIMITATIONS.  WHITE
MOTOR CO., SUPRA, AT 265 N. 2 (BRENNAN, J., CONCURRING). 

THERE HAVE BEEN TREMENDOUS DEPARTURES FROM THE NOTION OF A FREE
ENTERPRISE SYSTEM AS IT WAS ORIGINALLY CONCEIVED IN THIS COUNTRY. 
THESE DEPARTURES HAVE BEEN THE PRODUCT OF CONGRESSIONAL ACTION AND THE
WILL OF THE PEOPLE.  IF A DECISION IS TO BE MADE TO SACRIFICE
COMPETITION IN ONE PORTION OF THE ECONOMY FOR GREATER COMPETITION IN
ANOTHER PORTION, THIS TOO IS A DECISION THAT MUST BE MADE BY CONGRESS
AND NOT BY PRIVATE FORCES OR BY THE COURTS.  PRIVATE FORCES ARE TOO
KEENLY AWARE OF THEIR OWN INTERESTS IN MAKING SUCH DECISIONS AND COURTS
ARE ILL-EQUIPPED AND ILL-SITUATED FOR SUCH DECISIONMAKING.  TO ANALYZE,
INTERPRET, AND EVALUATE THE MYRIAD OF COMPETING INTERESTS AND THE
ENDLESS DATA THAT WOULD SURELY BE BROUGHT TO BEAR ON SUCH DECISIONS,
AND TO MAKE THE DELICATE JUDGMENT ON THE RELATIVE VALUES TO SOCIETY OF
COMPETITIVE AREAS OF THE ECONOMY, THE JUDGMENT OF THE ELECTED
REPRESENTATIVES OF THE PEOPLE IS REQUIRED. 

JUST AS THE TERRITORIAL RESTRICTIONS ON RETAILING TOPCO-BRAND
PRODUCTS MUST FALL, SO MUST THE TERRITORIAL RESTRICTIONS ON
WHOLESALING.  THE CONSIDERATIONS ARE THE SAME, AND THE SHERMAN ACT
REQUIRES IDENTICAL RESULTS. 

WE ALSO STRIKE DOWN TOPCO'S OTHER RESTRICTIONS ON THE RIGHT OF ITS
MEMBERS TO WHOLESALE GOODS.  THESE RESTRICTIONS AMOUNT TO REGULATION OF
THE CUSTOMERS TO WHOM MEMBERS OF TOPCO MAY SELL TOPCO-BRAND GOODS. 
LIKE TERRITORIAL RESTRICTIONS, LIMITATIONS ON CUSTOMERS ARE INTENDED TO
LIMIT INTRA-BRAND COMPETITION AND TO PROMOTE INTER-BRAND COMPETITION. 
FOR THE REASONS PREVIOUSLY DISCUSSED, THE ARENA IN WHICH TOPCO MEMBERS
COMPETE MUST BE LEFT TO THEIR UNFETTERED CHOICE ABSENT A CONTRARY
CONGRESSIONAL DETERMINATION.  UNITED STATES V. GENERAL MOTORS CORP.,
SUPRA; CF. UNITED STATES V. ARNOLD, SCHWINN & CO., SUPRA; UNITED STATES
V. MASONITE CORP., SUPRA; UNITED STATES V. TRENTON POTTERIES, SUPRA.
SEE ALSO, WHITE MOTOR CO., SUPRA, AT 281-283 (CLARK, J., DISSENTING). 

WE REVERSE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE CASE
FOR ENTRY OF AN APPROPRIATE DECREE. 

              IT IS SO ORDERED. 

/1/  TOPCO, WHICH IS REFERRED TO AT TIMES IN THIS OPINION AS THE
"ASSOCIATION," IS ACTUALLY COMPOSED OF 23 CHAINS OF SUPERMARKET
RETAILERS AND TWO RETAILER-OWNED COOPERATIVE WHOLESALERS. 

/2/ IN ADDITION TO PURCHASING VARIOUS ITEMS FOR ITS MEMBERS, TOPCO
PERFORMS OTHER RELATED FUNCTIONS:  E.G., IT INSURES THAT THERE IS
ADEQUATE QUALITY CONTROL ON THE PRODUCTS THAT IT PURCHASES; IT ASSISTS
MEMBERS IN DEVELOPING SPECIFICATIONS ON CERTAIN TYPES OF PRODUCTS
(E.G., EQUIPMENT AND SUPPLIES); AND IT ALSO AIDS THE MEMBERS IN
PURCHASING GOODS THROUGH OTHER SOURCES. 

/3/  THE FOUNDING MEMBERS OF TOPCO WERE HAVING DIFFICULTY COMPETING
WITH LARGER CHAINS.  THIS DIFFICULTY WAS ATTRIBUTABLE IN SOME DEGREE TO
THE FACT THAT THE LARGER CHAINS WERE CAPABLE OF DEVELOPING THEIR OWN
PRIVATE-LABEL PROGRAMS. 

PRIVATE-LABEL PRODUCTS DIFFER FROM OTHER BRAND-NAME PRODUCTS IN THAT
THEY ARE SOLD AT A LIMITED NUMER OF EASILY ASCERTAINABLE STORES.  A&P,
FOR EXAMPLE, WAS A PIONEER IN DEVELOPING A SERIES OF PRODUCTS THAT WERE
SOLD UNDER AN A&P LABEL AND THAT WERE ONLY AVAILABLE IN A&P STORES.  IT
IS OBVIOUS THAT BY USING PRIVATE-LABEL PRODUCTS, A CHAIN CAN ACHIEVE
SIGNIFICANT COST ECONOMIES IN PURCHASING, TRANSPORTATION, WAREHOUSING,
PROMOTION, AND ADVERTISING.  THESE ECONOMIES MAY AFFORD THE CHAIN
OPPORTUNITIES FOR OFFERING PRIVATE-LABEL PRODUCTS AT LOWER PRICES THAN
OTHER BRAND-NAME PRODUCTS.  THIS, IN TURN, PROVIDES MANY ADVANTAGES OF
WHICH SOME OF THE MORE IMPORTANT ARE:  A STORE CAN OFFER NATIONAL-BRAND
PRODUCTS AT THE SAME PRICE AS OTHER STORES, WHILE SIMULTANEOUSLY
OFFERING A DESIRABLE, LOWER PRICED ALTERNATIVE; OR, IF THE PROFIT
MARGIN IS SUFFICIENTLY HIGH ON PRIVATE-BRAND GOODS, NATIONAL-BRAND
PRODUCTS MAY BE SOLD AT REDUCED PRICE.  OTHER ADVANTAGES INCLUDE:
ENABLING A CHAIN TO BARGAIN MORE FAVORABLY WITH NATIONAL-BRAND
MANUFACTURERS BY CREATING A BROADER SUPPLY BASE OF MANUFACTURERS,
THEREBY DECREASING DEPENDENCE ON A FEW, LARGE NATIONAL-BRAND
MANUFACTURERS; ENABLING A CHAIN TO CREATE A "PRICE-MIX" WHEREBY PRICES
ON SPECIAL ITEMS CAN BE LOWERED TO ATTRACT CUSTOMERS WHILE PROFITS ARE
MAINTAINED ON OTHER ITEMS; AND CREATION OF GENERAL GOODWILL BY OFFERING
LOWER PRICED, HIGHER QUALITY GOODS. 

/4/  THE THREE LARGEST CHAINS ARE A&P, SAFEWAY, AND KROGER. 

/5/  TOPCO WAS NAMED IN THE COMPLAINT AS THE SOLE DEFENDANT, BUT THE
COMPLAINT CLEARLY CHARGED THAT ITS MEMBERS, WHILE NOT DEFENDANTS, WERE
COCONSPIRATORS IN TOPCO'S VIOLATION OF THE SHERMAN ACT. 

/6/  ARTICLE IX, SEC. 8, OF THE BYLAWS PROVIDES, IN RELEVANT PART: 

"UNLESS A MEMBER'S MEMBERSHIP AND LICENSING AGREEMENT PROVIDES THAT
SUCH MEMBER MAY SELL AT WHOLESALE, A MEMBER MAY NOT WHOLESALE PRODUCTS
SUPPLIED BY THE ASSOCIATION.  IF A MEMBERSHIP AND LICENSING AGREEMENT
PERMITS A MEMBER TO SELL AT WHOLESALE, SUCH MEMBER SHALL CONTROL THE
RESALE OF PRODUCTS BEARING TRADEMARKS OF THE ASSOCIATION SO THAT SUCH
SALES ARE CONFINED TO THE TERRITORIES GRANTED TO THE MEMBER, AND THE
METHOD OF SELLING SHALL CONFORM IN ALL RESPECTS WITH THE ASSOCIATION'S
POLICIES." 

SHORTLY BEFORE TRIAL, TOPCO AMENDED THIS BYLAW WITH AN ADDITION THAT
PERMITTED ANY MEMBER TO WHOLESALE IN THE EXCLUSIVE TERRITORIES IN WHICH
IT RETAILED.  BUT THE RESTRICTION REMAINED THE SAME IN ALL OTHER
CASES. 

IT IS APPARENT THAT THIS BYLAW ON ITS FACE APPLIES WHETHER OR NOT THE
PRODUCTS SOLD ARE TRADEMARKED BY TOPCO.  DESPITE THE FACT THAT TOPCO'S
GENERAL MANAGER TESTIFIED AT TRIAL THAT, IN PRACTICE, THE RESTRICTION
IS CONFINED TO TOPCO-BRANDED PRODUCTS, THE DISTRICT COURT FOUND THAT
THE BYLAW IS APPLIED AS WRITTEN.  WE FIND NOTHING CLEARLY ERRONEOUS IN
THIS FINDING.  ASSUMING, ARGUENDO, HOWEVER, THAT THE RESTRICTION IS
CONFINED TO PRODUCTS TRADEMARKED BY TOPCO, THE RESULT IN THIS CASE
WOULD NOT CHANGE. 

/7/  WHEN THE GOVERNMENT FIRST RAISED THIS POINT IN THE DISTRICT
COURT, TOPCO OBJECTED ON THE GROUND THAT IT WAS AT VARIANCE WITH THE
CHARGE IN THE COMPLAINT.  THE DISTRICT COURT APPARENTLY AGREED WITH
TOPCO THAT THE COMPLAINT DID NOT COVER CUSTOMER LIMITATIONS, BUT
PERMITTED THE GOVERNMENT TO PURSUE THIS LINE ON THE BASIS THAT IF THE
LIMITATIONS WERE PROVED, THE COMPLAINT COULD LATER BE AMENDED.  APP.
141.  TOPCO ACQUIESCED IN THIS PROCEDURE, AND BOTH SIDES DEALT WITH
CUSTOMER LIMITATIONS IN EXAMINING WITNESSES.  THE DISTRICT COURT MADE
SPECIFIC FINDINGS AND CONCLUSIONS WITH RESPECT TO THE TOTALITY OF THE
RESTRAINTS ON WHOLESALING.  IN LIGHT OF THESE FACTS, THE ADDITIONAL
FACT THAT THE COMPLAINT WAS NEVER FORMALLY AMENDED SHOULD NOT BAR OUR
CONSIDERATION OF THE ISSUE.     /8/  THE DISTRICT COURT RECOGNIZED THAT
"(THE GOVERNMENT HAS INTRODUCED EVIDENCE INDICATING THAT SOME
APPLICATIONS BY TOPCO MEMBERS TO EXPAND INTO TERRITORIES ASSIGNED TO
OTHER MEMBERS HAVE BEEN DENIED,"  319 F.SUPP.  1031, 1042, BUT
CONCLUDED THAT THESE DECISIONS BY TOPCO DID NOT HAVE AN APPRECIABLE
INFLUENCE ON THE DECISION OF MEMBERS AS TO WHETHER OR NOT TO EXPAND. 
TOPCO EXPANDS ON THIS CONCLUSION IN ITS BRIEF BY ASSERTING THAT "THE
EVIDENCE IS UNCONTRADICTED THAT A MEMBER HAS NEVER FAILED TO BUILD A
NEW STORE BECAUSE IT WAS UNABLE TO OBTAIN A LICENSE."  BRIEF FOR
APPELLEE 18 N. 18.  THE PROBLEM WITH THE CONCLUSION OF THE DISTRICT
COURT AND THE ASSERTION BY TOPCO IS THAT THEY ARE WHOLLY INCONSISTENT
WITH THE NOTION THAT TERRITORIAL DIVISIONS ARE CRUCIAL TO THE EXISTENCE
OF TOPCO, AS URGED BY THE ASSOCIATION AND FOUND BY THE DISTRICT COURT. 
FROM THE FILING OF ITS ANSWER TO THE ARGUMENT BEFORE THIS COURT, TOPCO
HAS MAINTAINED THAT WITHOUT A GUARANTEE OF AN EXCLUSIVE TERRITORY,
PROSPECTIVE LICENSEES WOULD NOT JOIN TOPCO AND PRESENT LICENSEES WOULD
LEAVE THE ASSOCIATION.  IT IS DIFFICULT TO UNDERSTAND HOW TOPCO CAN
MAKE THIS ARGUMENT AND SIMULTANEOUSLY URGE THAT TERRITORIAL
RESTRICTIONS ARE AN UNIMPORTANT FACTOR IN THE DECISION OF A MEMBER ON
WHETHER TO EXPAND ITS BUSINESS. 

/9/  IT IS TRUE THAT IN SEALY THE COURT DEALT WITH PRICE FIXING AS
WELL AS TERRITORIAL RESTRICTIONS.  TO THE EXTENT THAT SEALY CASTS DOUBT
ON WHETHER HORIZONTAL TERRITORIAL LIMITATIONS, UNACCOMPANIED BY PRICE
FIXING, ARE PER SE VIOLATIONS OF THE SHERMAN ACT, WE REMOVE THAT DOUBT
TODAY. 

/10/  THERE HAS BEEN MUCH RECENT COMMENTARY ON THE WISDOM OF PER SE
RULES.  SEE, E.G., COMMENT, HORIZONTAL TERRITORIAL RESTRAINTS AND THE
PER SE RULE, 28 WASH.& LEE L.REV.  457 (1971); AVERILL, SEALY, SCHWINN
AND SHERMAN ONE:  AN ANALYSIS AND PROGNOSIS, 15 N.Y.L.F. 39 (1969);
NOTE, SELECTED ANTITRUST PROBLEMS OF THE FRANCHISOR:  EXCLUSIVE
ARRANGEMENTS, TERRITORIAL RESTRICTIONS, AND FRANCHISE TERMINATION, 22
U.FLA.L.REV.  260, 286 (1969; SADD, ANTITRUST SYMPOSIUM:  TERRITORIAL
AND CUSTOMER RESTRICTIONS AFTER SEALY AND SCHWINN, 38 U.CIN.L.REV. 
249, 252-253 (1969); BORK, THE RULE OF REASON AND THE PER SE CONCEPT,
PT. 1, PRICE FIXING AND MARKET DIVISION, 74 YALE L.J. 775 (1965). 

WITHOUT THE PER SE RULES, BUSINESSMEN WOULD BE LEFT WITH LITTLE TO
AID THEM IN PREDICTING IN ANY PARTICULAR CASE WHAT COURTS WILL FIND TO
BE LEGAL AND ILLEGAL UNDER THE SHERMAN ACT.  SHOULD CONGRESS ULTIMATELY
DETERMINE THAT PREDICTABILITY IS UNIMPORTANT IN THIS AREA OF THE LAW,
IT CAN, OF COURSE, MAKE PER SE RULES INAPPLICABLE IN SOME OR ALL CASES,
AND LEAVE COURTS FREE TO RAMBLE THROUGH THE WILDS OF ECONOMIC THEORY IN
ORDER TO MAINTAIN A FLEXIBLE APPROACH. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACKMUN, CONCURRING IN THE RESULT. 

THE CONCLUSION THE COURT REACHES HAS ITS ANOMALOUS ASPECTS, FOR
SURELY, AS THE DISTRICT COURT'S FINDINGS MAKE CLEAR, TODAY'S DECISION
IN THE GOVERNMENT'S FAVOR WILL TEND TO STULTIFY TOPCO MEMBERS'
COMPETITION WITH THE GREAT AND LARGER CHAINS.  THE BIGS, THEREFORE,
SHOULD FIND IT EASIER TO GET BIGGER AND, AS A CONSEQUENCE, REALTY SEEMS
AT ODDS WITH THE PUBLIC INTEREST.  THE PER SE RULE, HOWEVER, NOW
APPEARS TO BE SO FIRMLY ESTABLISHED BY THE COURT THAT, AT THIS LATE
DATE, I COULD NOT OPPOSE IT.  RELIEF, IF ANY IS TO BE FORTHCOMING,
APPARENTLY MUST BE BY WAY OF LEGISLATION. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

THIS CASE DOES NOT INVOLVE RESTRAINTS ON INTERBRAND COMPETITION OR
AN ALLOCATION OF MARKETS BY AN ASSOCIATION WITH MONOPOLY OR NEAR
MONOPOLY CONTROL OF THE SOURCES OF SUPPLY OF ONE OR MORE VARIETIES OF
THE STAPLE GOODS.  RATHER, WE HAVE HERE AN AGREEMENT AMONG SEVERAL
SMALL GROCERY CHAINS TO JOIN IN A COOPERATIVE ENDEAVOR THAT, IN MY
VIEW, HAS AN UNQUESTIONABLY LAWFUL PRINCIPAL PURPOSE; IN PURSUIT OF
THAT PURPOSE THEY HAVE MUTUALLY AGREED TO CERTAIN MINIMAL ANCILLARY
RESTRAINTS THAT ARE FULLY REASONABLE IN VIEW OF THE PRINCIPAL PURPOSE
AND THAT HAVE NEVER BEFORE TODAY BEEN HELD BY THIS COURT TO BE PER SE
VIOLATIONS OF THE SHERMAN ACT. 

IN JOINING IN THIS COOPERATIVE ENDEAVOR, THESE SMALL CHAINS DID NOT
AGREE TO THE RESTRAINTS HERE AT ISSUE IN ORDER TO MAKE IT POSSIBLE FOR
THEM TO EXPLOIT AN ALREADY ESTABLISHED LINE OF PRODUCTS THROUGH
NONCOMPETITIVE PRICING.  THERE WAS NO SUCH THING AS A TOPCO LINE OF
PRODUCTS UNTIL THIS COOPERATIVE WAS FORMED.  THE RESTRAINTS TO WHICH
THE COOPERATIVE'S MEMBERS HAVE AGREED DEAL ONLY WITH THE MARKETING OF
THE PRODUCTS IN THE TOPCO LINE, AND THE ONLY FUNCTION OF THOSE
RESTRAINTS IS TO PERMIT EACH MEMBER CHAIN TO ESTABLISH, WITHIN ITS OWN
GEOGRAPHICAL AREA AND THROUGH ITS OWN LOCAL ADVERTISING AND MARKETING
EFFORTS, A LOCAL CONSUMER AWARENESS OF THE TRADEMARKED FAMILY OF
PRODUCTS AS THAT MEMBER'S "PRIVATE LABEL" LINE.  THE GOAL SOUGHT WAS
THE ENHANCEMENT OF THE INDIVIDUAL MEMBERS' ABILITIES TO COMPETE, ALBEIT
TO A MODEST DEGREE, WITH THE LARGE NATIONAL CHAINS WHICH HAD BEEN
SUCCESSFULLY MARKETING PRIVATE-LABEL LINES FOR SEVERAL YEARS.  THE SOLE
REASON FOR A COOPERATIVE ENDEAVOR WAS TO MAKE ECONOMICALLY FEASIBLE
SUCH THINGS AS QUALITY CONTROL, LARGE QUANTITY PURCHASES AT BULK
PRICES, THE DEVELOPMENT OF ATTRACTIVELY PRINTED LABELS, AND THE ABILITY
TO OFFER A NUMBER OF DIFFERENT LINES OF TRADEMARKED PRODUCTS.  ALL
THESE THINGS, OF COURSE, ARE FEASIBLE FOR THE LARGE NATIONAL CHAINS
OPERATING INDIVIDUALLY, BUT THEY ARE BEYOND THE REACH OF THE SMALL
OPERATORS PROCEEDING ALONE.  /1/ 

AFTER A CAREFUL REVIEW OF THE ECONOMIC CONSIDERATIONS BEARING UPON
THIS CASE, THE DISTRICT COURT DETERMINED THAT "THE RELIEF WHICH THE
GOVERNMENT HERE SEEKS WOULD NOT INCREASE COMPETITION IN TOPCO PRIVATE
LABEL BRANDS"; ON THE CONTRARY, SUCH RELIEF "WOULD SUBSTANTIALLY
DIMINISH COMPETITION IN THE SUPERMARKET FIELD."  319 F.SUPP.  1031,
1043.  THIS COURT HAS NOT TODAY DETERMINED, ON THE BASIS OF AN
EXAMINATION OF THE UNDERLYING ECONOMIC REALITIES, THAT THE DISTRICT
COURT'S CONCLUSIONS ARE INCORRECT.  RATHER, THE MAJORITY HOLDS THAT THE
DISTRICT COURT HAD NO BUSINESS EXAMINING TOPCO'S PRACTICES UNDER THE
"RULE OF REASON"; IT SHOULD NOT HAVE SOUGHT TO DETERMINE WHETHER
TOPCO'S PRACTICES DID IN FACT RESTRAIN TRADE OR COMMERCE WITHIN THE
MEANING OF SEC. 1 OF THE SHERMAN ACT; IT SHOULD HAVE FOUND NO MORE THAN
THAT THOSE PRACTICES INVOLVE A "HORIZONTAL DIVISION OF MARKETS" AND
ARE, BY THAT VERY FACT, PER SE VIOLATIONS OF THE ACT. 

I DO NOT BELIEVE THAT OUR PRIOR DECISIONS JUSTIFY THE RESULT REACHED
BY THE MAJORITY.  NOR DO I BELIEVE THAT A NEW PER SE RULE SHOULD BE
ESTABLISHED IN DISPOSING OF THIS CASE, FOR THE JUDICIAL CONVENIENCE AND
READY PREDICTABILITY THAT ARE MADE POSSIBLE BY PER SE RULES ARE NOT
SUCH OVERRIDING CONSIDERATIONS IN ANTITRUST LAW AS TO JUSTIFY THEIR
PROMULGATION WITHOUT CAREFUL PRIOR CONSIDERATION OF THE RELEVANT
ECONOMIC REALITIES IN THE LIGHT OF THE BASIC POLICY AND GOALS OF THE
SHERMAN ACT. 

        I 

I DEAL FIRST WITH THE CASES UPON WHICH THE MAJORITY RELIES IN
STATING THAT "(THIS COURT HAS REITERATED TIME AND TIME AGAIN THAT
'(HORIZONTAL TERRITORIAL LIMITATIONS . . . ARE NAKED RESTRAINTS OF
TRADE WITH NO PURPOSE EXCEPT STIFLING OF COMPETITION.'  WHITE MOTOR CO.
V. UNITED STATES, 372 U.S. 253, 263 (1963)."  WHITE MOTOR, OF COURSE,
LAID DOWN NO PER SE RULE; NOR WERE ANY HORIZONTAL TERRITORIAL
LIMITATIONS INVOLVED IN THAT CASE.  INDEED, IT WAS IN WHITE MOTOR THAT
THIS COURT REVERSED THE DISTRICT COURT'S HOLDING THAT VERTICALLY
IMPOSED TERRITORIAL LIMITATIONS WERE PER SE VIOLATIONS, EXPLAINING THAT
"(WE NEED TO KNOW MORE THAN WE DO ABOUT THE ACTUAL IMPACT OF THESE
ARRANGEMENTS ON COMPETITION TO DECIDE WHETHER THEY . . . SHOULD BE
CLASSIFIED AS PER SE VIOLATIONS OF THE SHERMAN ACT."  372 U.S.,AT 263. 
THE STATEMENT FROM THE WHITE MOTOR OPINION QUOTED BY THE MAJORITY TODAY
WAS MADE WITHOUT CITATION OF AUTHORITY AND WAS APPARENTLY INTENDED
PRIMARILY TO MAKE CLEAR THAT THE FACTS THEN BEFORE THE COURT WERE NOT
TO BE CONFUSED WITH HORIZONTALLY IMPOSED TERRITORIAL LIMITATIONS.  TO
TREAT DICTUM IN THAT CASE AS CONTROLLING HERE WOULD, OF COURSE, BE
UNJUSTIFIED. 

HAVING QUOTED THIS DICTUM FROM WHITE MOTOR, THE COURT THEN CITES
EIGHT CASES FOR THE PROPOSITION THAT HORIZONTAL TERRITORIAL LIMITATIONS
ARE PER SE VIOLATIONS OF THE SHERMAN ACT.  ONE OF THESE CASES, NORTHERN
PACIFIC R. CO. V. UNITED STATES, 356 U.S. 1 (1958), DEALT EXCLUSIVELY
WITH A PROHIBITED TYING ARRANGEMENT AND IS IMPROPERLY CITED AS A CASE
CONCERNED WITH A DIVISION OF MARKETS.  /2/  OF THE REMAINING SEVEN
CASES FOUR INVOLVED AN AGGREGATION OF TRADE RESTRAINTS THAT INCLUDED
PRICE-FIXING AGREEMENTS.  TIMKEN ROLLER BEARING CO. V. UNITED STATES,
341 U.S. 593 (1951); UNITED STATES V. SEALY, INC., 388 U.S. 350 (1967);
/3/  SERTA ASSOCIATES, INC. V. UNITED STATES, 393 U.S. 534 (1969),
AFF'G 296 F.SUPP.  1121 (ND ILL. 1968).  PRICE FIXING IS, OF COURSE,
NOT A FACTOR IN THE INSTANT CASE. 

ANOTHER OF THE CASES RELIED UPON BY THE COURT, UNITED STATES V.
NATIONAL LEAD CO., 332 U.S. 319 (1947), INVOLVED A WORLD-WIDE
ARRANGEMENT /4/  FOR DIVIDING TERRITORIES, POOLING PATENTS, AND
EXCHANGING TECHNOLOGICAL INFORMATION.  THE ARRANGEMENT WAS FOUND
ILLEGAL BY THE DISTRICT COURT WITHOUT ANY RELIANCE ON A PER SE RULE;
/5/  THIS COURT, IN AFFIRMING, WAS CONCERNED ALMOST EXLCUSIVELY WITH
THE REMEDIES ORDERED BY THE DISTRICT COURT AND MADE NO ATTEMPT TO
DECLARE A PER SE RULE TO GOVERN THE MERITS OF THE CASE. 

IN STILL ANOTHER CASE ON WHICH THE MAJORITY RELIES, UNITED STATES V.
ARNOLD, SCHWINN & CO., 388 U.S. 365 (1967), THE DISTRICT COURT HAD,
INDEED, HELD THAT THE AGREEMENTS BETWEEN THE MANUFACTURER AND CERTAIN
OF ITS DISTRIBUTORS, PROVIDING THE LATTER WITH EXCLUSIVE TERRITORIES,
WERE HORIZONTAL IN NATURE AND THAT THEY WERE, AS SUCH, PER SE
VIOLATIONS OF THE ACT.  237 F.SUPP.  323, 342-343.  SINCE NO APPEAL WAS
TAKEN FROM THIS PART OF THE DISTRICT COURT'S ORDER, /6/  THAT ISSUE WAS
NOT BEFORE THIS COURT IN ITS REVIEW OF THE CASE.  INDEED, IN DEALING
WITH THE ISSUES THAT WERE BEFORE IT, THIS COURT FOLLOWED AN APPROACH
MARKEDLY DIFFERENT FROM THAT OF THE DISTRICT COURT.  FIRST, IN
REVIEWING THE CASE HERE, THE COURT MADE IT CLEAR THAT IT WAS PROCEEDING
UNDER THE "RULE OF REASON," AND NOT BY PER SE RULE; /7/  SECOND, THE
COURT SAW THE ISSUES PRESENTED AS INVOLVING VERTICAL, NOT HORIZONTAL
RESTRAINTS.  /8/  IT CAN HARDLY BE CONTENDED, THEREFORE, THAT THIS
COURT'S DECISION IN SCHWINN IS CONTROLLING PRECEDENT FOR THE
APPLICATION IN THE INSTANT CASE OF A PER SE RULE THAT PROHIBITS
HORIZONTAL RESTRAINTS WITHOUT REGARD TO THEIR MARKET EFFECTS. 

FINALLY, THERE REMAINS THE EIGHTH OF THE CASES RELIED UPON BY THE
COURT-- ACTUALLY, THE FIRST IN ITS LIST OF "AUTHORITIES" FOR THE
PURPORTED PER SE RULE.  CIRCUIT JUDGE (LATER CHIEF JUSTICE) TAFT'S
OPINION FOR THE COURT IN UNITED STATES V. ADDYSTON PIPE & STEEL CO., 85
F. 271 (CA6 1898), AFF'D, 175 U.S. 211 (1899), HAS GENERALLY BEEN
RECOGNIZED-- AND PROPERLY SO-- AS A FULLY AUTHORITATIVE EXPOSITION OF
ANTITRUST LAW.  BUT NEITHER HE, NOR THIS COURT IN AFFIRMING, MADE ANY
PRETENSE OF ESTABLISHING A PER SE RULE AGAINST ALL AGREEMENTS INVOLVING
HORIZONTAL TERRITORIAL LIMITATIONS.  THE DEFENDANTS IN THAT CASE WERE
MANUFACTURERS AND VENDORS OF CAST-IRON PIPE WHO HAD "ENTERED INTO A
COMBINATION TO RAISE THE PRICES FOR PIPE" THROUGHOUT A NUMBER OF STATES
"CONSTITUTING CONSIDERABLY MORE THAN THREE-QUARTERS OF THE TERRITORY OF
THE UNITED STATES, AND SIGNIFICANTLY CALLED . . . 'PAY TERRITORY.'"  85
F.,AT 291.  THE ASSOCIATED DEFENDANTS IN COMBINATION CONTROLLED TWO
THIRDS OF THE MANUFACTURED OUTPUT OF SUCH PIPE IN THIS "PAY TERRITORY";
CERTAIN CITIES ("RESERVED" CITIES) WITHIN THE TERRITORY WERE ASSIGNED
TO PARTICULAR INDIVIDUAL DEFENDANTS WHO SOLD PIPE IN THOSE CITIES AT
PRICES FIXED BY THE ASSOCIATION, THE OTHER DEFENDANTS SUBMITTING
FICTITIOUS BIDS AND THE SELLING DEFENDANTS PAYING A FIXED "BONUS" TO
THE ASSOCIATION FOR EACH SALE.  OUTSIDE THE "RESERVED" CITIES, ALL
SALES BY THE DEFENDANTS TO CUSTOMERS IN THE "PAY TERRITORY" WERE,
AGAIN, AT PRICES DETERMINED BY THE ASSOCIATION AND WERE ALLOCATED TO
THE ASSOCIATION MEMBER WHO OFFERED, IN A SECRET AUCTION, TO PAY THE
LARGEST "BONUS" TO THE ASSOCIATION ITSELF.  THE EFFECT WAS, OF COURSE,
THAT THE BUYING PUBLIC LOST ALL BENEFIT OF COMPETITIVE PRICING. 
ALTHOUGH THE CASE HAS FREQUENTLY-- AND QUITE PROPERLY-- BEEN CITED AS A
HORIZONTAL ALLOCATION-OF-MARKETS CASE, THE SOLE PURPOSE OF THE SECRET
CUSTOMER ALLOCATIONS WAS TO ENABLE THE MEMBERS OF THE ASSOCIATION TO
FIX PRICES CHARGED TO THE PUBLIC AT NONCOMPETITIVE LEVELS.  JUDGE TAFT
REJECTED THE DEFENDANTS' ARGUMENT THAT THE PRICES ACTUALLY CHARGED WERE
"REASONABLE"; HE HELD THAT IT WAS SUFFICIENT FOR A FINDING OF A SHERMAN
ACT VIOLATION THAT THE COMBINATION AND AGREEMENT OF THE DEFENDANTS GAVE
THEM SUCH MONOPOLY POWER THAT THEY, RATHER THAN MARKET FORCES, FIXED
THE PRICES OF ALL CAST-IRON PIPE IN THREE-FOURTHS OF THE NATION'S
TERRITORY.  THE CASE UNQUESTIONABLY LAID IMPORTANT GROUNDWORK FOR THE
SUBSEQUENT ESTABLISHMENT OF THE PER SE RULE AGAINST PRICE FIXING.  IT
DID NOT, HOWEVER, ESTABLISH THAT A HORIZONTAL DIVISION OF MARKETS IS,
WITHOUT MORE, A PER SE VIOLATION OF THE SHERMAN ACT.              II 

THE FOREGOING ANALYSIS OF THE CASES RELIED UPON BY THE MAJORITY
INDICATES TO ME THAT THE COURT IS NOT MERELY FOLLOWING PRIOR HOLDINGS;
ON THE CONTRARY, IT IS ESTABLISHING A NEW PER SE RULE.  IN THE FACE OF
THE DISTRICT COURT'S WELL SUPPORTED FINDINGS THAT THE EFFECTS OF SUCH A
RULE IN THIS CASE WILL BE ADVERSE TO THE PUBLIC WELFARE, /9/  THE COURT
LAYS DOWN THAT RULE WITHOUT REGARD TO THE IMPACT THAT THE CONDEMNED
PRACTICES MAY HAVE ON COMPETITION.  IN DOING SO, THE COURT VIRTUALLY
INVITES CONGRESS TO UNDERTAKE TO DETERMINE THAT IMPACT.  ANTE, AT 611
612.  I QUESTION WHETHER THE COURT IS FULFILLING THE ROLE ASSIGNED TO
IT UNDER THE STATUTE WHEN IT DECLINES TO MAKE THIS DETERMINATION; IN
ANY EVENT, IF THE COURT IS UNWILLING ON THIS RECORD TO ASSESS THE
ECONOMIC IMPACT, IT SURELY SHOULD NOT PROCEED TO MAKE A NEW RULE TO
GOVERN THE ECONOMIC ACTIVITY.  WHITE MOTOR CO. V. UNITED STATES, 372
U.S.,AT 263. 

WHEN ONE OF HIS VERSIONS OF THE PROPOSED ACT WAS BEFORE THE SENATE
FOR CONSIDERATION IN 1890, SENATOR SHERMAN, IN A LENGTHY, AND OBVIOUSLY
CAREFULLY PREPARED, ADDRESS TO THAT BODY, SAID THAT THE BILL SOUGHT 

"ONLY TO PREVENT AND CONTROL COMBINATIONS MADE WITH A VIEW TO
PREVENT COMPETITION, OR FOR THE RESTRAINT OF TRADE, OR TO INCREASE THE
PROFITS OF THE PRODUCER AT THE COST OF THE CONSUMER.  IT IS THE
UNLAWFUL COMBINATION, TESTED BY THE RULES OF COMMON LAW AND HUMAN
EXPERIENCE, THAT IS AIMED AT BY THIS BILL, AND NOT THE LAWFUL AND
USEFUL COMBINATION. 

.          .          .          . 

     "I ADMIT THAT IT IS DIFFICUTL TO DEFINE IN LEGAL LANGUAGE THE

  PRECISE LINE BETWEEN LAWFUL AND UNLAWFUL COMBINATIONS.  THIS MUST

  BE LEFT FOR THE COURTS TO DETERMINE IN EACH PARTICULAR CASE.  ALL

  THAT WE, AS LAWMAKERS, CAN DO IS TO DECLARE GENERAL PRINCIPLES,

  AND WE CAN BE ASSURED THAT THE COURTS WILL APPLY THEM SO AS TO

  CARRY OUT THE MEANING OF THE LAW . . . . "  21 CONG.REC.  2457,

  2460. 

IN "CARRYING) OUT THE MEANING OF THE LAW" BY MAKING ITS
"DETERMINATIONS) IN EACH PARTICULAR CASE," THIS COURT EARLY CONCLUDED
THAT IT WAS CONGRESS' INTENT THAT A "RULE OF REASON" BE APPLIED IN
MAKING SUCH CASE-BY-CASE DETERMINATIONS.  STANDARD OIL CO. V. UNITED
STAES, 221 U.S. 1, 60 (1911).  AND THAT RULE OF REASON WAS TO BE
APPLIED IN LIGHT OF THE ACT'S POLICY TO PROTECT THE "PUBLIC
INTERESTS."  UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 179
(1911).  THE PER SE RULES THAT HAVE BEEN DEVELOPED ARE SIMILARLY
DIRECTED TO THE PROTECTION OF THE PUBLIC WELFARE; THEY ARE
COMPLEMENTARY TO, AND IN NO WAY INCONSISTENT WITH, THE RULE OF REASON. 
THE PRINCIPAL ADVANTAGES THAT FLOW FROM THEIR USE ARE, FIRST, THAT
ENFORCEMENT AND PREDICTABILITY ARE ENHANCED AND, SECOND, THAT
UNNECESSARY JUDICIAL INVESTIGATION IS AVOIDED IN THOSE CASES WHERE
PRACTICES FALLING WITHIN THE SCOPE OF SUCH RULES ARE FOUND.  AS THE
COURT EXPLAINED IN NORTHERN PACIFIC R. CO. V. UNITED STATES, SUPRA, AT
5, 

"(THERE ARE CERTAIN AGREEMENTS OR PRACTICES WHICH BECAUSE OF THEIR
PERNICIOUS EFFECT ON COMPETITION AND LACK OF ANY REDEEMING VIRTURE ARE
CONCLUSIVELY PRESUMED TO BE UNREASONABLE AND THEREFORE ILLEGAL WITHOUT
ELABORATE INQUIRY AS TO THE PRECISE HARM THEY HAVE CAUSED OR THE
BUSINESS EXCUSE FOR THEIR USE." 

IN FORMULATING A NEW PER SE RULE TODAY, THE COURT DOES NOT TELL US
WHAT "PERNICIOUS EFFECT ON COMPETITION" THE PRACTICES HERE OUTLAWED ARE
PERCEIVED TO HAVE; NOR DOES IT ATTEMPT TO SHOW THAT THOSE PRACTICES
"LACK . . . ANY REDEEMING VIRTUE."  RATHER, IT EMPHASIZES ONLY THE
IMPORTANCE OF PREDICTABILITY, ASSERTING THAT "COURTS ARE OF LIMITED
UTILITY IN EXAMINING DIFFICULT ECONOMIC PROBLEMS" AND HAVE NOT YET BEEN
LEFT FREE BY CONGRESS TO "RAMBLE THROUGH THE WILDS OF ECONOMIC THEORY
IN ORDER TO MAINTAIN A FLEXIBLE APPROACH."  /10/ 

WITH ALL RESPECT, I BELIEVE THAT THERE ARE TWO BASIC FALLACIES IN
THE COURT'S APPROACH HERE.  FIRST, WHILE I WOULD NOT CHARACTERIZE OUR
ROLE UNDER THE SHERMAN ACT AS ONE OF "RAMBLING) THROUGH THE WILDS," IT
IS INDEED ONE THAT REQUIRES OUR "EXAMINATION OF ) DIFFICULT ECONOMIC
PROBLEMS."  WE CAN UNDOUBTEDLY EASE OUR TASK, BUT WE SHOULD NOT
ABDICATE THAT ROLE BY FORMULATION OF PER SE RULES WITH NO JUSTIFICATION
OTHER THAN THE ENHANCEMENT OF PREDICTABILITY AND THE REDUCTION OF
JUDICIAL INVESTIGATION.  SECOND, FROM THE GENERAL PROPOSITION THAT PER
SE RULES PLAY A NECESSARY ROLE IN ANTITRUST LAW, IT DOES NOT FOLLOW
THAT THE PARTICULAR PER SE RULE PROMULGATED TODAY IS AN APPROPRIATE
ONE.  ALTHOUGH IT MIGHT WELL BE DESIRABLE IN A PROPER CASE FOR THIS
COURT TO FORMULATE A PER SE RULE DEALING WITH HORIZONTAL TERRITORIAL
LIMITATIONS, IT WOULD NOT NECESSARILY BE APPROPRIATE FOR SUCH A RULE TO
AMOUNT TO A BLANKET PROHIBITION AGAINST ALL SUCH LIMITATIONS.  MORE
SPECIFICALLY, IT IS FAR FROM CLEAR TO ME WHY SUCH A RULE SHOULD COVER
THOSE DIVISION-OF-MARKET AGREEMENTS THAT INVOLVE NO PRICE FIXING AND
WHICH ARE CONCERNED ONLY WITH TRADEMARKED PRODUCTS THAT ARE NOT IN A
MONOPOLY OR NEAR-MONOPOLY POSITION WITH RESPECT TO COMPETING BRANDS. 
THE INSTANT CASE PRESENTS SUCH AN AGREEMENT; I WOULD NOT DECIDE IT UPON
THE BASIS OF A PER SE RULE.  /11/ 

THE DISTRICT COURT SPECIFICALLY FOUND THAT THE HORIZONTAL RESTRAINTS
INVOLVED HERE TEND POSITIVELY TO PROMOTE COMPETITION IN THE SUPERMARKET
FIELD AND TO PRODUCE LOWER COSTS FOR THE CONSUMER.  THE COURT SEEMS
IMPLICITLY TO ACCEPT THIS DETERMINATION, BUT SAYS THAT THE SHERMAN ACT
DOES NOT GIVE TOPCO THE AUTHORITY TO DETERMINE FOR ITSELF "WHETHER OR
NOT COMPETITION WITH OTHER SUPERMARKET CHAINS IS MORE DESIRABLE THAN
COMPETITION IN THE SALE OF TOPCO-BRAND PRODUCTS."  ANTE, AT 611.  BUT
THE MAJORITY OVERLOOKS A FURTHER SPECIFIC DETERMINATION OF THE DISTRICT
COURT, NAMELY, THAT THE INVALIDATION OF THE RESTRAINTS HERE AT ISSUE
"WOULD NOT INCREASE COMPETITION IN TOPCO PRIVATE LABEL BRANDS."  319
F.SUPP.,AT 1043.  INDEED, THE DISTRICT COURT SEEMED TO BELIEVE THAT IT
WOULD, ON THE CONTRARY, LEAD TO THE LIKELY DEMISE OF THOSE BRANDS IN
TIME.  AND THE EVIDENCE BEFORE THE DISTRICT COURT WOULD APPEAR TO
JUSTIFY THAT CONCLUSION. 

THERE IS NO NATIONAL DEMAND FOR TOPCO BRANDS, NOR HAS THERE EVER
BEEN ANY NATIONAL ADVERTISING OF THOSE BRANDS.  IT WOULD BE
IMPRACTICABLE FOR TOPCO, WITH ITS LIMITED FINANCIAL RESOURCES, TO
CONVERT ITSELF INTO A NATIONAL BRAND DISTRIBUTOR IN COMPETITION WITH
DISTRIBUTORS OF EXISTING NATIONAL BRANDS.  FURTHERMORE, WITHOUT THE
RIGHT TO GRANT EXCLUSIVE LICENSES, IT COULD NOT ATTRACT AND HOLD NEW
MEMBERS AS REPLACEMENTS FOR THOSE OF ITS PRESENT MEMBERS WHO, FOLLOWING
THE PATTERN OF THE PAST, EVENTUALLY GROW SUFFICIENTLY IN SIZE TO BE
ABLE TO LEAVE THE COOPERATIVE ORGANIZATION AND DEVELOP THEIR OWN
INDIVIDUAL PRIVATE-LABEL BRANDS.  MOREOVER, TOPCO'S PRESENT MEMBERS,
ONCE TODAY'S DECISION HAS HAD ITS FULL IMPACT OVER THE COURSE OF TIME,
WILL HAVE NO MORE REASON TO PROMOTE TOPCO PRODUCTS THROUGH LOCAL
ADVERTISING AND MERCHANDISING EFFORTS THAN THEY WILL HAVE SUCH REASON
TO PROMOTE ANY OTHER GENERALLY AVAILABLE BRANDS. 

THE ISSUES PRESENTED BY THE ANTITRUST CASES REACHING THIS COURT ARE
RARELY SIMPLE TO RESOLVE UNDER THE RULE OF REASON; THEY DO INDEED
FREQUENTLY REQUIRE US TO MAKE DIFFICULT ECONOMIC DETERMINATIONS.  WE
SHOULD NOT FOR THAT REASON ALONE, HOWEVER, BE OVERLY ZEALOUS IN
FORMULATING NEW PER SE RULES, FOR AN EXCESS OF ZEAL IN THAT REGARD IS
BOTH CONTRARY TO THE POLICY OF THE SHERMAN ACT AND DETRIMENTAL TO THE
WELFARE OF CONSUMERS GENERALLY.  INDEED, THE ECONOMIC EFFECT OF THE NEW
RULE LAID DOWN BY THE COURT TODAY SEEMS CLEAR:  UNLESS CONGRESS
INTERVENES, GROCERY STAPLES MARKETED UNDER PRIVATE-LABEL BRANDS WITH
LOWER CONSUMER PRICES WILL SOON BE AVAILABLE ONLY TO THOSE WHO
PATRONIZE THE LARGE NATIONAL CHAINS. 

/1/  THE DISTRICT COURT'S FINDINGS OF FACT INCLUDE THE FOLLOWING: 

"33.  A COMPETITVELY EFFECTIVE PRIVATE LABEL PROGRAM TO BE
INDEPENDENTLY UNDERTAKEN BY A SINGLE RETAILER OR CHAIN WOULD REQUIRE AN
ANNUAL SALES VOLUME OF $250 MILLION OR MORE AND IN ORDER TO ACHIEVE
OPTIMUM EFFICIENCY, THE VOLUME REQUIRED WOULD PROBABLY HAVE TO BE TWICE
THAT AMOUNT."  319 F.SUPP.  1031, 1036. 

/2/  THERE IS DICTUM IN THE CASE TO THE EFFECT THAT UNITED STATES V.
ADDYSTON PIPE & STEEL CO., 85 F. 271 (CA6 1898), AFF'D, 175 U.S. 211
(1899), ESTABLISHED A "DIVISION OF MARKETS" AS UNLAWFUL IN AND OF
ITSELF.  356 U.S.,AT 5.  AS I WILL SHOW, HOWEVER, ADDYSTON PIPE
ESTABLISHED NO SUCH THING; IT WAS PRIMARILY A PRICE-FIXING CASE. 

/3/ I CANNOT AGREE WITH THE COURT'S DESCRIPTION OF SEALY AS BEING
"ON ALL FOURS WITH THIS CASE."  ANTE, AT 609.  SEALY DOES SUPPORT THE
PROPOSITION THAT THE RESTRAINTS ON THE TOPCO LICENSEES ARE HORIZONTALLY
IMPOSED.  BEYOND THAT, HOWEVER, SEALY IS HARDLY CONTROLLING HERE.  THE
TERRITORIAL RESTRICTIONS IN SEALY WERE FOUND BY THIS COURT TO BE SO
INTIMATELY A PART OF AN UNLAWFUL PRICE-FIXING AND POLICING SCHEME THAT
THE TWO ARRANGEMENTS FELL TOGETHER: 

"(THIS UNLAWFUL RESALE PRICE-FIXING ACTIVITY REFUTES APPELLEE'S
CLAIM THAT THE TERRITORIAL RESTRAINTS WERE MERE INCIDENTS OF A LAWFUL
PROGRAM OF TRADEMARK LICENSING.  CF. TIMKEN ROLLER BEARING CO. V.
UNITED STATES, (341 U.S. 593 (1951)).  THE TERRITORIAL RESTRAINTS WERE
A PART OF THE UNLAWFUL PRICE-FIXING AND POLICING."  388 U.S.,AT 356. 

/4/  IN SUMMARIZING ITS FINDINGS, THE DISTRICT COURT MADE THE
FOLLOWING STATEMENTS: 

"WHEN THE STORY IS SEEN AS A WHOLE, THERE IS NO BLINKING THE FACT
THAT THERE IS NO FREE COMMERCE IN TITANIUM.  EVERY POUND OF IT IS
TRAMMELLED BY PRIVATELY IMPOSED REGULATION.  THE CHANNELS OF THIS
COMMERCE HAVE NOT BEEN FORMED BY THE WINDS AND CURRENTS OF
COMPETITION.  THEY ARE, IN LARGE MEASURE, ARTIFICIAL CANALS PRIVATELY
CONSTRUCTED.  . . .

        . .          .          . 

" . . . NO TITANIUM PIGMENTS ENTER THE UNITED STATES EXCEPT WITH THE
CONSENT OF NL (DEFENDANT NATIONAL LEAD).  NO FOREIGN TITANIUM PIGMENTS
MOVE IN INTERSTATE COMMERCE EXCEPT WITH LIKE APPROVAL.  NO TITANIUM
PIGMENT PRODUCED BY NL MAY LEAVE THE PORTS OF THE UNITED STATES FOR
POINTS OUTSIDE THE WESTERN HEMISPHERE."  63 F.SUPP.  513, 521-522. 

/5/  THE DISTRICT COURT CLEARLY DECIDED THE CASE UNDER THE "RULE OF
REASON."  IT FOUND THAT THERE WAS "A COMBINATION AND CONSPIRACY IN
RESTRAINT OF TRADE; AND THE RESTRAINT IS UNREASONABLE.  AS SUCH IT IS
OUTLAWED BY SECTION 1 OF THE SHERMAN ACT."  63 F.SUPP.,AT 523.  THE
COURT REJECTED THE ARGUMENT MADE BY THE DEFENSE THAT THE BASIC
AGREEMENT ON WHICH THE ARRANGEMENT WAS FOUNDED WAS PERMISSIBLE UNDER
"THE DOCTRINE WHICH VALIDATES COVENANTS IN RESTRAINT OF TRADE WHEN
REASONABLY ANCILLARY TO A LAWFUL PRINCIPAL PURPOSE.  . . . (THE WORLD
WIDE TERRITORIAL ALLOCATION WAS UNREASONABLE IN SCOPE WHEN MEASURED
AGAINST THE BUSINESS ACTUALITIES."  ID., AT 524. 

/6/  "THE APPELLEES DID NOT APPEAL FROM THE FINDINGS AND ORDER
INVALIDATING (TERRITORIAL) RESTRAINTS ON RESALE BY DISTRIBUTORS.  . . .
"  388 U.S.,AT 368. 

/7/  "THE GOVERNMENT DOES NOT CONTEND THAT A PER SE VIOLATION OF THE
SHERMAN ACT IS PRESENTED BY THE PRACTICES WHICH ARE INVOLVED IN THIS
APPEAL . . . . ACCORDINGLY, WE ARE REMITTED TO AN APPRAISAL OF THE
MARKET IMPACT OF THESE PRACTICES. 

" . . . (WE MUST LOOK TO THE SPECIFICS OF THE CHALLENGED PRACTICES
AND THEIR IMPACT UPON THE MARKETPLACE IN ORDER TO MAKE A JUDGMENT AS TO
WHETHER THE RESTRAINT IS OR IS NOT 'REASONABLE' IN THE SPECIAL SENSE IN
WHICH SEC. 1 OF THE SHERMAN ACT MUST BE READ FOR PURPOSES OF THIS TYPE
OF INQUIRY."  388 U.S.,AT 373-374. 

/8/  "WE ARE HERE CONFRONTED WITH CHALLENGED VERTICAL RESTRICTIONS
AS TO TERRITORY AND DEALERS.  . . . THESE ARE NOT HORIZONTAL
RESTRAINTS, IN WHICH THE ACTORS ARE DISTRIBUTORS WITH OR WITHOUT THE
MANUFACTURER'S PARTICIPATION."  388 U.S.,AT 372. 

/9/  AMONG THE FACTS FOUND BY THE DISTRICT COURT ARE THE FOLLOWING:
PRIVATE-LABEL BRAND MERCHANDISING, WHICH IS BEYOND THE REACH OF THE
SMALL CHAINS ACTING INDEPENDENTLY AND WHICH BY DEFINITION DEPENDS UPON
LOCAL EXCLUSIVITY, PERMITS THE MERCHANDISER TO OFFER THE PUBLIC "LOWER
CONSUMER PRICES ON PRODUCTS OF HIGH QUALITY" AND "TO BARGAIN MORE
FAVORABLY WITH NATIONAL BRAND MANUFACTURERS"; SUCH MERCHANDISING
FOSTERS "THE ESTABLISHMENT OF A BROADER SUPPLY BASE OF MANUFACTURERS,
THEREBY DECREASING DEPENDENCE UPON A RELATIVELY FEW, LARGE NATIONAL
BRAND MANUFACTURERS"; IT ALSO ENABLES "(SMALLER MANUFACTURERS, THE MOST
COMMON SOURCE OF PRIVATE LABEL PRODUCTS, WHO ARE GENERALLY UNABLE TO
DEVELOP NATIONAL BRAND NAME RECOGNITION FOR THEIR PRODUCTS, (TO)
BENEFIT . . . BY THE ASSURANCE OF A SUBSTANTIAL MARKET FOR THEIR
PRODUCTS . . . . "  319 F.SUPP.,AT 1035. 

/10/  IT SEEMS IRONICAL TO ME THAT IN ANOTHER ANTITRUST CASE DECIDED
TODAY, FORD MOTOR CO. V. UNITED STATES, ANTE, P. 562, THE COURT, IN
CONTRAST TO ITS HANDLING OF THE INSTANT CASE, GOES OUT OF ITS WAY TO
COMMEND ANOTHER DISTRICT COURT FOR ITS TREATMENT OF A PROBLEM INVOLVING
"PREDICTIONS AND ASSUMPTIONS CONCERNING FUTURE ECONOMIC AND BUSINESS
EVENTS."  ID., AT 578. 

/11/  THE NATIONAL CHAINS MARKET THEIR OWN PRIVATE-LABEL PRODUCTS,
AND THESE PRODUCTS ARE AVAILABLE NOWHERE ELSE THAN IN THE STORES OF
THOSE CHAINS.  THE STORES OF ANY ONE CHAIN, OF COURSE, DO NOT ENGAGE IN
PRICE COMPETITION WITH EACH OTHER WITH RESPECT TO THEIR CHAIN'S PRIVATE
LABEL BRANDS, AND NO SERIOUS SUGGESTION COULD BE MADE THAT THE SHERMAN
ACT REQUIRES OTHERWISE.  I FAIL TO SEE ANY DIFFERENCE WHATSOEVER IN THE
ECONOMIC EFFECT OF THE TOPCO ARRANGEMENT FOR THE MARKETING OF TOPCO
BRAND PRODUCTS AND THE METHODS USED BY THE NATIONAL CHAINS IN MARKETING
THEIR PRIVATE-LABEL BRANDS.  TRUE, THE TOPCO ARRANGEMENT INVOLVES A
"COMBINATION," WHILE EACH OF THE NATIONAL CHAINS IS A SINGLE INTEGRATED
CORPORATION.  THE CONTROLLING CONSIDERATION, HOWEVER, SHOULD BE THAT IN
NEITHER CASE IS THE POLICY OF THE SHERMAN ACT OFFENDED, FOR THE
PRACTICES IN BOTH CASES WORK TO THE BENEFIT, AND NOT TO THE DETRIMENT,
OF THE CONSUMING PUBLIC.     HOWARD E. SHAPIRO ARGUED THE CAUSE FOR THE
UNITED STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD
AND DEPUTY ASSISTANT ATTORNEY GENERAL COMEGYS. 

VICTOR E. GRIMM ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE JOHN T. LOUGHLIN AND WILLIAM R. CARNEY. 
..END :



GOODING V. WILSON, 405 U.S. 518 


       GOODING, WARDEN V. WILSON

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH

CIRCUIT

        NO. 70-26.  ARGUED DECEMBER 8, 1971-- DECIDED MARCH 23,

           1972 


GEORGIA STATUTE PROVIDING THAT "(ANY PERSON WHO SHALL, WITHOUT
PROVOCATION, USE TO OR OF ANOTHER, AND IN HIS PRESENCE . . .
OPPROBRIOUS WORDS OR ABUSIVE LANGUAGE, TENDING TO CAUSE A BREACH OF THE
PEACE . . . SHALL BE GUILTY OF A MISDEMEANOR," WHICH HAS NOT BEE
NARROWED BY THE GEORGIA COURTS TO APPLY ONLY TO "FIGHTING" WORDS "WHICH
BY THEIR VERY UTTERANCE . . . TEND TO INCITE AN IMMEDIATE BREACH OF THE
PEACE," CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572, IS ON ITS FACE
UNCONSTITUTIONALLY VAGUE AND OVERBROAD UNDER THE FIRST AND FOURTEENTH
AMENDMENTS.  PP. 520-528. 

431 F.2D 855, AFFIRMED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, AND MARSHALL, JJ., JOINED.  BURGER, C.J., FILED A
DISSENTING OPINION, POST, P. 528.  BLACKMUN, J., FILED A DISSENTING
OPINION, IN WHICH BURGER, C.J., JOINED, POST, P. 534.  POWELL AND
REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLEE WAS CONVICTED IN SUPERIOR COURT, FULTON COUNTY, GEORGIA, ON
TWO COUNTS OF USING OPPROBRIOUS WORDS AND ABUSIVE LANGUAGE IN VIOLATION
OF GEORGIA CODE ANN. SEC. 26-6303, WHICH PROVIDES:  "ANY PERSON WHO
SHALL, WITHOUT PROVOCATION, USE TO OR OF ANOTHER, AND IN HIS PRESENCE .
. . OPPROBRIOUS WORDS OR ABUSIVE LANGUAGE, TENDING TO CAUSE A BREACH OF
THE PEACE . . . SHALL BE GUILTY OF A MISDEMEANOR."  APPELLEE APPEALED
THE CONVICTION TO THE SUPREME COURT OF GEORGIA ON THE GROUND, AMONG
OTHERS, THAT THE STATUTE VIOLATED THE FIRST AND FOURTEENTH AMENDMENTS
BECAUSE VAGUE AND OVERBROAD.  THE GEORGIA SUPREME COURT REJECTED THAT
CONTENTION AND SUSTAINED THE CONVICTION.  WILSON V. STATE, 223 GA. 531,
156 S.E.2D 446 (1967).  APPELLEE THEN SOUGHT FEDERAL HABEAS CORPUS
RELIEF IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA.  THE
DISTRICT COURT FOUND THAT, BECAUSE APPELLEE HAD FAILED TO EXHAUST HIS
AVAILABLE STATE REMEDIES AS TO THE OTHER GROUNDS HE RELIED UPON IN
ATTACKING HIS CONVICTION, ONLY THE CONTENTION THAT SEC. 26-6303 WAS
FACIALLY UNCONSTITUTIONAL WAS RIPE FOR DECISION.  /1/  303 F.SUPP.  952
(1969).  ON THE MERITS OF THAT QUESTION, THE DISTRICT COURT, IN
DISAGREEMENT WITH THE GEORGIA SUPREME COURT, HELD THAT SEC. 26-6303, ON
ITS FACE, WAS UNCONSTITUTIONALLY VAGUE AND BROAD AND SET ASIDE
APPELLEE'S CONVICTION.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
AFFIRMED.  431 F.2D 855 (1970).  WE NOTED PROBABLE JURISDICTION OF THE
STATE'S APPEAL, 403 U.S. 930 (1971).  WE AFFIRM. 

WITHSTAND APPELLEE'S ATTACK UPON ITS FACIAL CONSTITUTIONALITY ONLY IF,
AS AUTHORITATIVELY CONSTRUED BY THE GEORGIA COURTS, IT IS NOT
SUSCEPTIBLE OF APPLICATION TO SPEECH, ALTHOUGH VULGAR OR OFFENSIVE,
THAT IS PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS, COHEN V.
CALIFORNIA, 403 U.S. 15, 18-22 (1971); TERMINIELLO V. CHICAGO, 337 U.S.
1, 4-5 (1949).  ONLY THE GEORGIA COURTS CAN SUPPLY THE REQUISITE
CONSTRUCTION, SINCE OF COURSE "WE LACK JURISDICTION AUTHORITATIVELY TO
CONSTRUE STATE LEGISLATION."  UNITED STATES V. THIRTY-SEVEN
PHOTOGRAPHS, 402 U.S. 363, 369 (1971).  IT MATTERS NOT THAT THE WORDS
APPELLEE USED MIGHT HAVE BEEN CONSTITUTIONALLY PROHIBITED UNDER A
NARROWLY AND PRECISELY DRAWN STATUTE.  AT LEAST WHEN STATUTES REGULATE
OR PROSCRIBE SPEECH AND WHEN "NO READILY APPARENT CONSTRUCTION SUGGESTS
ITSELF AS A VEHICLE FOR REHABILITATING THE STATUTES IN A SINGLE
PROSECUTION," DOMBROWSKI V. PFISTER, 380 U.S. 479, 491 (1965), THE
TRANSCENDENT VALUE TO ALL SOCIETY OF CONSTITUTIONALLY PROTECTED
EXPRESSION IS DEEMED TO JUSTIFY ALLOWING "ATTACKS ON OVERLY BROAD
STATUTES WITH NO REQUIREMENT THAT THE PERSON MAKING THE ATTACK
DEMONSTRATE THAT HIS OWN CONDUCT COULD NOT BE REGULATED BY A STATUTE
DRAWN WITH THE REQUISITE NARROW SPECIFICITY," ID., AT 486; SEE ALSO
BURGETT V. BULLITT, 377 U.S. 360, 366 (1964); COATES V. CITY OF
CINCINNATI, 402 U.S. 611, 616 (1971); ID., AT 619-620 (WHITE, J.,
DISSENTING); UNITED STATES V. RAINES, 362 U.S. 17, 21-22 (1960); NAACP
V. BUTTON, 371 U.S. 415, 433 (1963).  THIS IS DEEMED NECESSARY BECAUSE
PERSONS WHOSE EXPRESSION IS CONSTITUTIONALLY PROTECTED MAY WELL REFRAIN
FROM EXERCISING THEIR RIGHTS FOR FEAR OF CRIMINAL SANCTIONS PROVIDED BY
A STATUTE SUSCEPTIBLE OF APPLICATION TO PROTECTED EXPRESSION. 

"ALTHOUGH A STATUTE MAY BE NEITHER VAGUE, OVERBROAD, NOR OTHERWISE
INVALID AS APPLIED TO THE CONDUCT CHARGED AGAINST A PARTICULAR
DEFENDANT, HE IS PERMITTED TO RAISE ITS VAGUENESS OR UNCONSTITUTIONAL
OVERBREADTH AS APPLIED TO OTHERS.  AND IF THE LAW IS FOUND DEFICIENT IN
ONE OF THESE RESPECTS, IT MAY NOT BE APPLIED TO HIM EITHER, UNTIL AND
UNLESS A SATISFACTORY LIMITING CONSTRUCTION IS PLACED ON THE STATUTE. 
THE STATUTE, IN EFFECT, IS STRICKEN DOWN ON ITS FACE.  THIS RESULT IS
DEEMED JUSTIFIED SINCE THE OTHERWISE CONTINUED EXISTENCE OF THE STATUTE
IN UNNARROWED FORM WOULD TEND TO SUPPRESS CONSTITUTIONALLY PROTECTED
RIGHTS."  COATES V. CITY OF CINCINNATI, SUPRA, AT 619-620 (OPINION OF
WHITE, J.)  (CITATION OMMITTED). 

THE CONSTITUTIONAL GUARANTEES OF FREEDOM OF SPEECH FORBID THE STATES
TO PUNISH THE USE OF WORDS OR LANGUAGE NOT WITHIN "NARROWLY LIMITED
CLASSES OF SPEECH."  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571
(1942).  EVEN AS TO SUCH A CLASS, HOWEVER, BECAUSE "THE LINE BETWEEN
SPEECH UNCONDITIONALLY GUARANTEED THE SPEECH WHICH MAY LEGITIMATELY BE
REGULATED, SUPPRESSED, OR PUNISHED IS FINELY DRAWN," SPEISER V.
RANDALL, 357 U.S. 513, 525 (1958), "(IN EVERY CASE THE POWER TO
REGULATE MUST BE SO EXERCISED AS NOT, IN ATTAINING A PERMISSIBLE END,
UNDULY TO INFRINGE THE PROTECTED FREEDOM," CANTWELL V. CONNECTICUT, 310
U.S. 296, 304 (1940).  IN OTHER WORDS, THE STATUTE MUST BE CAREFULLY
DRAWN OR BE AUTHORITATIVELY CONSTRUED TO PUNISH ONLY UNPROTECTED SPEECH
AND NOT BE SUSCEPTIBLE OF APPLICATION TO PROTECTED EXPRESSION. 
"BECAUSE FIRST AMENDMENT FREEDOMS NEED BREATHING SPACE TO SURVIVE,
GOVERNMENT MAY REGULATE IN THE AREA ONLY WITH NARROW SPECIFICITY." 
NAACP V. BUTTON, SUPRA, AT 433. 

APPELLANT DOES NOT CHALLENGE THESE PRINCIPLES BUT CONTENDS THAT THE
GEORGIA STATUTE IS NARROWLY DRAWN TO APPLY ONLY TO A CONSTITUTIONALLY
UNPROTECTED CLASS OF WORDS-- "FIGHTING" WORDS-- "THOSE WHICH BY THEIR
VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE AN IMMEDIATE BREACH OF
THE PEACE."  CHAPLINSKY V. NEW HAMPSHIRE, SUPRA, AT 572.  IN
CHAPLINSKY, WE SUSTAINED A CONVICTION UNDER CHAPTER 378, SEC. 2, OF THE
PUBLIC LAWS OF NEW HAMPSHIRE, WHICH PROVIDED:  "NO PERSON SHALL ADDRESS
ANY OFFENSIVE, DERISIVE OR ANNOYING WORD TO ANY OTHER PERSON WHO IS
LAWFULLY IN ANY STREET OR OTHER PUBLIC PLACE, NOR CALL HIM BY ANY
OFFENSIVE OR DERISIVE NAME . . . . "  CHAPLINSKY WAS CONVICTED FOR
ADDRESSING TO ANOTHER ON A PUBLIC SIDEWALK THE WORDS, "YOU ARE A GOD
DAMNED RACKETEER," AND "A DEMAND FASCIST AND THE WHOLE GOVERNMENT OF
ROCHESTER ARE FASCISTS OR AGENTS OF FASCISTS."  CHAPLINSKY CHALLENGED
THE CONSTITUTIONALITY OF THE STATUTE AS INHIBITING FREEDOM OF
EXPRESSION BECAUSE IT WAS VAGUE AND INDEFINITE.  THE SUPREME COURT OF
NEW HAMPSHIRE, HOWEVER, "LONG BEFORE THE WORDS FOR WHICH CHAPLINSKY WAS
CONVICTED," SHARPLY LIMITED THE STATUTORY LANGUAGE "OFFENSIVE, DERISIVE
OR ANNOYING WORD" TO "FIGHTING" WORDS: 

"(NO WORDS WERE FORBIDDEN EXCEPT SUCH AS HAVE A DIRECT TENDENCY TO
CAUSE ACTS OF VIOLENCE BY THE PERSON TO WHOM, INDIVIDUALLY, THE REMARK
IS ADDRESSED.  . . .

        .          .          .          . 

     "THE TEST IS WHAT MEN OF COMMON INTELLIGENCE WOULD UNDERSTAND

 WOULD BE WORDS LIKELY TO CAUSE AN AVERAGE ADDRESSEE TO FIGHT.  . .

  . DERISIVE AND ANNOYING WORDS CAN BE TAKEN AS COMING WITHIN THE

  PURVIEW OF THE STATUTE . . . ONLY WHEN THEY HAVE THIS

  CHARACTERISTIC OF PLAINLY TENDING TO EXCITE THE ADDRESSEE TO A

  BREACH OF THE PEACE.  . . . 

 "THE STATUTE, AS CONSTRUED, DOES NO MORE THAN PROHIBIT THE

  FACE-TO-FACE WORDS PLAINLY LIKELY TO CAUSE A BREACH OF THE PEACE

  BY THE ADDRESSEE . . . . "  91 N.H. 310, 313, 320-321, 18 A.2D

  754, 758, 762 (1941). 

IN VIEW OF THAT AUTHORITATIVE CONSTRUCTION, THIS COURT HELD:  "WE
ARE UNABLE TO SAY THAT THE LIMITED SCOPE OF THE STATUTE AS THUS
CONSTRUED CONTRAVENES THE CONSTITUTIONAL RIGHT OF FREE EXPRESSION.  IT
IS A STATUTE NARROWLY DRAWN AND LIMITED TO DEFINE AND PUNISH SPECIFIC
CONDUCT LYING WITHIN THE DOMAIN OF STATE POWER, THE USE IN A PUBLIC
PLACE OF WORDS LIKELY TO CAUSE A BREACH OF THE PEACE."  315 U.S.,AT
573.  OUR DECISIONS SINCE CHAPLINSKY HAVE CONTINUED TO RECOGNIZE STATE
POWER CONSTITUTIONALLY TO PUNISH "FIGHTING" WORDS UNDER CAREFULLY DRAWN
STATUTES NOT ALSO SUSCEPTIBLE OF APPLICATION TO PROTECTED EXPRESSION,
COHEN V. CALIFORNIA, 403 U.S.,AT 20; BACHELLAR V. MARYLAND, 397 U.S.
564, 567 (1970); SEE STREET V. NEW YORK, 394 U.S. 576, 592 (1969).  WE
REAFFIRM THAT PROPOSITION TODAY. 

APPELLANT ARGUES THAT THE GEORGIA APPELLATE COURTS HAVE BY
CONSTRUCTION LIMITED THE PROSCRIPTION OF SEC. 26-6303 TO "FIGHTING"
WORDS, AS THE NEW HAMPSHIRE SUPREME COURT LIMITED THE NEW HAMPSHIRE
STATUTE.  "A CONSIDERATION OF THE (GEORGIA) CASES CONSTRUING THE
ELEMENTS OF THE OFFENSE MAKES IT CLEAR THAT THE OPPROBRIOUS WORDS AND
ABUSIVE LANGUAGE WHICH ARE THEREBY PROHIBITED ARE THOSE WHICH AS A
MATTER OF COMMON KNOWLEDGE AND UNDER ORDINARY CIRCUMSTANCES WILL, WHEN
USED TO OR OF ANOTHER PERSON, AND IN HIS PRESENCE, NATURALLY TEND TO
PROVOKE VIOLENT RESENTMENT.  THE STATUTE UNDER ATTACK SIMPLY STATES IN
STATUTORY LANGUAGE WHAT THIS COURT HAS PREVIOUSLY DENOMINATED 'FIGHTING
WORDS.'"  BRIEF FOR APPELLANT 6.  NEITHER THE DISTRICT COURT NOR THE
COURT OF APPEALS SO READ THE GEORGIA DECISIONS.  ON THE CONTRARY, THE
DISTRICT COURT EXPRESSLY STATED, "THUS, IN THE DECISIONS BROUGHT TO
THIS COURT'S ATTENTION, NO MEANINGFUL ATTEMPT HAS BEEN MADE TO LIMIT OR
PROPERLY DEFINE THESE TERMS."  303 F.SUPP.,AT 955.  THE DISTRICT JUDGE
AND ONE MEMBER OF THE UNANIMOUS COURT OF APPEALS PANEL WERE GEORGIA
PRACTITIONERS BEFORE THEY ASCENDED THE BENCH.  /2/  THEIR VIEWS OF
GEORGIA LAW NECESSARILY ARE PERSUASIVE WITH US.  C. WRIGHT, LAW OF
FEDERAL COURTS SEC. 58, PP. 240-241 (2D ED. 1970).  WE HAVE, HOWEVER,
MADE OUR OWN EXAMINATION OF THE GEORGIA CASES, BOTH THOSE CITED AND
OTHERS DISCOVERED IN RESEARCH.  THAT EXAMINATION BRINGS US TO THE
CONCLUSION, IN AGREEMENT WITH THE COURTS BELOW, THAT THE GEORGIA
APPELLATE DECISIONS HAVE NOT CONSTRUED SEC. 26-6303 TO BE LIMITED IN
APPLICATION, AS IN CHAPLINSKY, TO WORDS THAT "HAVE A DIRECT TENDENCY TO
CAUSE ACTS OF VIOLENCE BY THE PERSON TO WHOM, INDIVIDUALLY, THE REMARK
IS ADDRESSED." 

THE DICTIONARY DEFINITIONS OF "OPPROBRIOUS" AND "ABUSIVE" GIVE THEM
GREATER REACH THAN "FIGHTING" WORDS.  WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY (1961) DEFINED "OPPROBRIOUS" AS "CONVEYING OR INTENDED TO
CONVEY DISGRACE," AND "ABUSIVE" AS INCLUDING "HARSH INSULTING
LANGUAGE."  GEORGIA APPELLATE DECISIONS HAVE CONSTRUED SEC. 26-6303 TO
APPLY TO UTTERANCES THAT, ALTHOUGH WITHIN THESE DEFINITIONS, ARE NOT
"FIGHTING" WORDS AS CHAPLINSKY DEFINES THEM.  IN LYONS V. STATE, 94
GA.APP.  570, 95 S.E.2D 478 (1956), A CONVICTION UNDER THE STATUTE WAS
SUSTAINED FOR AWAKENING 10 WOMEN SCOUT LEADERS ON A CAMP-OUT BY
SHOUTING, "BOYS, THIS IS WHERE WE ARE GOING TO SPEND THE NIGHT." 
AGAIN, IN FISH V. STATE, 124 GA. 416, 52 S.E. 737 (1905), THE GEORGIA
SUPREME COURT HELD THAT A JURY QUESTION WAS PRESENTED BY THE REMARK,
"YOU SWORE A LIE."  AGAIN, JACKSON V. STATE, 14 GA.APP.  19, 80 S.E. 20
(1913), HELD THAT A JURY QUESTION WAS PRESENTED BY THE WORDS ADDRESSED
TO ANOTHER, "GOD DAMN YOU, WHY DON'T YOU GET OUT OF THE ROAD?" 
PLAINLY, ALTHOUGH "CONVEYING . . . DISGRACE" OR "HARSH INSULTING
LANGUAGE," THESE WERE NOT WORDS "WHICH BY THEIR VERY UTTERANCE . . .
TEND TO INCITE AN IMMEDIATE BREACH OF THE PEACE."  CHAPLINSKY V. NEW
HAMPSHIRE, SUPRA, AT 572. 

GEORGIA APPELLATE DECISIONS CONSTRUING THE REACH OF "TENDING TO
CAUSE A BREACH OF THE PEACE" UNDERSCORE THAT SEC. 26-6303 IS NOT
LIMITED, AS APPELLANT ARGUES, TO WORDS THAT "NATURALLY TEND TO PROVOKE
VIOLENT RESENTMENT."  LYONS V. STATE, SUPRA; FISH V. STATE, SUPRA; AND
JACKSON V. STATE, SUPRA.  INDEED, THE GEORGIA COURT OF APPEALS /3/  IN
ELMORE V. STATE, 15 GA.APP.  461, 83 S.E. 799 (1914), CONSTRUED
"TENDING TO CAUSE A BREACH OF THE PEACE" AS MERE 

"WORDS OF DESCRIPTION, INDICATING THE KIND OR CHARACTER OF
OPPROBRIOUS OR ABUSIVE LANGUAGE THAT IS PENALIZED, AND THE USE OF
LANGUAGE OF THIS CHARACTER IS A VIOLATION OF THE STATUTE, EVEN THOUGH
IT BE ADDRESSED TO ONE WHO, ON ACCOUNT OF CIRCUMSTANCES OR BY VIRTUE OF
THE OBLIGATIONS OF OFFICE, CAN NOT ACTUALLY THEN AND THERE RESENT THE
SAME BY A BREACH OF THE PEACE . . . . 

     " . . . SUPPOSE THAT ONE, AT A SAFE DISTANCE AND OUT OF
HEARING

  OF ANY OTHER THAN THE PERSON TO WHOM HE SPOKE, ADDRESSED SUCH

  LANGUAGE TO ONE LOCKED IN A PRISON CELL OR ON THE OPPOSITE BANK

  OF AN IMPASSIBLE TORRENT, AND HENCE WITHOUT POWER TO RESPOND

  IMMEDIATELY TO SUCH VERBAL INSULTS BY PHYSICAL RETALIATION, COULD

IT BE REASONABLY CONTENDED THAT, BECAUSE NO BREACH OF THE PEACE

  COULD THEN FOLLOW, THE STATUTE WOULD NOT BE VIOLATED?  . . . 

      " . . . (THOUGH, ON ACCOUNT OF CIRCUMSTANCES OR OBLIGATIONS

  IMPOSED BY OFFICE, ONE MAY NOT BE ABLE AT THE TIME TO ASSAULT AND

  BEAT ANOTHER ON ACCOUNT OF SUCH LANGUAGE, IT MIGHT STILL TEND TO

  CAUSE A BREACH OF THE PEACE AT SOME FUTURE TIME, WHEN THE PERSON

  TO WHOM IT WAS ADDRESSED MIGHT BE NO LONGER HAMPERED BY PHYSICAL

  INABILITY, PRESENT CONDITIONS, OR OFFICIAL POSITION."  15

  GA.APP.,AT 461-463, 83 S.E.,AT 799-800.  /4/ 

MOREOVER, IN SAMUELS V. STATE, 103 GA.APP.  66, 67, 118 S.E.2D 231,
232 (1961), THE COURT OF APPEALS, IN APPLYING ANOTHER STATUTE, ADOPTED
FROM A TEXTBOOK THE COMMON-LAW DEFINITION OF "BREACH OF THE PEACE." 

"THE TERM 'BREACH OF THE PEACE' IS GENERIC, AND INCLUDES ALL
VIOLATIONS OF THE PUBLIC PEACE OR ORDER, OR DECORUM; IN OTHER WORDS, IT
SIGNIFIES THE OFFENSE OF DISTURBING THE PUBLIC PEACE OR TRANQUILITY
ENJOYED BY THE CITIZENS OF A COMMUNITY . . . . BY 'PEACE,' AS USED IN
THIS CONNECTION, IS MEANT THE TRANQUILITY ENJOYED BY THE CITIZENS OF A
MUNICIPALITY OR A COMMUNITY WHERE GOOD ORDER REIGNS AMONG ITS
MEMBERS." 

THIS DEFINITION MAKES IT A "BREACH OF PEACE" MERELY TO SPEAK WORDS
OFFENSIVE TO SOME WHO HEAR THEM, AND SO SWEEPS TOO BROADLY.  STREET V.
NEW YORK, 394 U.S.,AT 592.  "(HOW INFINITELY MORE DOUBTFUL AND
UNCERTAIN ARE THE BOUNDARIES OF AN OFFENSE INCLUDING ANY 'DIVERSION
TENDING TO A BREACH OF THE PEACE' . . . ."  GREGORY V. CHICAGO, 394
U.S. 111, 119 (1969) (BLACK, J., CONCURRING). 

ACCORDINGLY, WE AGREE WITH THE DISTRICT COURT THAT OUR DECISIONS IN
ASHTON V. KENTUCKY, 384 U.S. 195 (1966), AND COX V. LOUISIANA, 379 U.S.
536 (1965), COMPEL THE CONCLUSION THAT SEC. 26-6303, AS CONSTRUED, DOES
NOT DEFINE THE STANDARD OF RESPONSIBILITY WITH REQUISITE NARROW
SPECIFICITY.  IN ASHTON WE HELD THAT "TO MAKE AN OFFENSE OF CONDUCT
WHICH IS 'CALCULATED TO CREATE DISTURBANCES OF THE PEACE' LEAVES WIDE
OPEN THE STANDARD OF RESPONSIBILITY."  384 U.S.,AT 200.  IN COX V.
LOUISIANA THE STATUTE STRUCK DOWN INCLUDED AS AN ELEMENT CONGREGATING
WITH OTHERS "WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR UNDER
CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED
THEREBY."  AS THE DISTRICT COURT OBSERVED, "(AS CONSTRUED BY THE
GEORGIA COURTS, ESPECIALLY IN THE INSTANT CASE, THE GEORGIA PROVISION
AS TO BREACH OF THE PEACE IS EVEN BROADER THAN THE LOUISIANA STATUTE." 
303 F.SUPP.,AT 956. 

WE CONCLUDE THAT "(THE SEPARATION OF LEGITIMATE FROM ILLEGITIMATE
SPEECH CALLS FOR MORE SENSITIVE TOOLS THAN (GEORGIA) HAS SUPPLIED." 
SPEISER V. RANDALL, 357 U.S.,AT 525.  THE MOST RECENT DECISION OF THE
GEORGIA SUPREME COURT, WILSON V. STATE, SUPRA, IN REJECTING APPELLEE'S
ATTACK ON THE CONSTITUTIONALITY OF SEC. 26-6303, STATED THAT THE
STATUTE "CONVEYS A DEFINITE MEANING AS TO THE CONDUCT FORBIDDEN,
MEASURED BY COMMON UNDERSTANDING AND PRACTICE."  223 GA.,AT 533, 156
S.E.2D, AT 448.  BECAUSE EARLIER APPELLATE DECISIONS APPLIED SEC. 26
6303 TO UTTERANCES WHERE THERE WAS NO LIKELIHOOD THAT THE PERSON
ADDRESSED WOULD MAKE AN IMMEDIATE VIOLENT RESPONSE, IT IS CLEAR THAT
THE STANDARD ALLOWING JURIES TO DETERMINE GUILT "MEASURED BY COMMON
UNDERSTANDING AND PRACTICE" DOES NOT LIMIT THE APPLICATION OF SEC. 26
6303 TO "FIGHTING" WORDS DEFINED BY CHAPLINSKY.  RATHER, THAT BROAD
STANDARD EFFECTIVELY "LICENSES THE JURY TO CREATE ITS OWN STANDARD IN
EACH CASE."  HERNDON V. LOWRY, 301 U.S. 242, 263 (1937).  ACCORDINGLY,
WE AGREE WITH THE CONCLUSION OF THE DISTRICT COURT, "(THE FAULT OF THE
STATUTE IS THAT IT LEAVES WIDE OPEN THE STANDARD OF RESPONSIBILITY, SO
THAT IT IS EASILY SUSCEPTIBLE TO IMPROPER APPLICATION."  303 F.SUPP.,AT
955-956.  UNLIKE THE CONSTRUCTION OF THE NEW HAMPSHIRE STATUTE BY THE
NEW HAMPSHIRE SUPREME COURT, THE GEORGIA APPELLATE COURTS HAVE NOT
CONSTRUED SEC. 26-6303 "SO AS TO AVOID ALL CONSTITUTIONAL
DIFFICULTIES."  UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S.,AT
369. 

              AFFIRMED. 

/1/  THE DISTRICT COURT STATED, "ACCORDINGLY, THIS ORDER WILL NOT
DEAL WITH THE ALLEGED UNCONSTITUTIONAL APPLICATION OF THIS STATUTE NOR
ANY OF THE OTHER POINTS RAISED IN THE WRIT, EXCEPT FOR THE FACIAL
UNCONSTITUTIONALITY OF GEORGIA CODE SEC. 26-6303."  303 F.SUPP.,AT
953.  THE STATE CONVICTION WAS UPON TWO COUNTS OF ASSAULT AND BATTERY
AS WELL AS UPON TWO COUNTS OF USING OPPROBRIOUS AND ABUSIVE LANGUAGE. 
APPELLEE WAS ALSO CONVICTED OF FEDERAL OFFENSES ARISING OUT OF THE SAME
INCIDENT, AND THOSE CONVICTIONS WERE AFFIRMED BY THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT.  TILLMAN V. UNITED STATES, 406 F.2D 930 (1969). 
THE FACTS GIVING RISE TO THE PROSECUTIONS ARE STATED IN THE OPINION OF
THE SUPREME COURT OF GEORGIA AS FOLLOWS: 

"THE DEFENDANT WAS ONE OF A GROUP OF PERSONS WHO, ON AUGUST 18,
1966, PICKETED THE BUILDING IN WHICH THE 12TH CORPS HEADQUARTERS OF THE
UNITED STATES ARMY WAS LOCATED, CARRYING SIGNS OPPOSING THE WAR IN VIET
NAM.  WHEN THE INDUCTEES ARRIVED AT THE BUILDING, THESE PERSONS BEGAN
TO BLOCK THE DOOR SO THAT THE INDUCTEES COULD NOT ENTER.  THEY WERE
REQUESTED BY POLICE OFFICERS TO MOVE FROM THE DOOR, BUT REFUSED TO DO
SO.  THE OFFICERS ATTEMPTED TO REMOVE THEM FROM THE DOOR, AND A SCUFFLE
ENSUED.  THERE WAS AMPLE EVIDENCE TO SHOW THAT THE DEFENDANT COMMITTED
ASSAULT AND BATTERY ON THE TWO POLICE OFFICERS NAMED IN THE
INDICTMENT.  THERE WAS ALSO SUFFICIENT EVIDENCE OF THE USE OF THE
OPPROBRIOUS AND ABUSIVE WORDS CHARGED, AND THE JURY WAS AUTHORIZED TO
FIND FROM THE CIRCUMSTANCES SHOWN BY THE EVIDENCE THAT THE WORDS WERE
SPOKEN WITHOUT SUFFICIENT PROVOCATION, AND TENDED TO CAUSE A BREACH OF
THE PEACE."  223 GA. 531, 535, 156 S.E.2D 446, 449-450. 

"COUNT 3 OF THE INDICTMENT ALLEGED THAT THE ACCUSED 'DID WITHOUT
PROVOCATION USE TO AND OF M. G. REDDING AND IN HIS PRESENCE, THE
FOLLOWING ABUSIVE LANGUAGE AND OPPROBRIOUS WORDS, TENDING TO CAUSE A
BREACH OF THE PEACE:  "WHITE SON OF A BITCH, I'LL KILL YOU."  "YOU SON
OF A BITCH, I'LL CHOKE YOU TO DEATH."'  COUNT 4 ALLEGED THAT THE
DEFENDANT 'DID WITHOUT PROVOCATION USE TO AND OF T. L. RABORN, AND IN
HIS PRESENCE, THE FOLLOWING ABUSIVE LANGUAGE AND OPPROBRIOUS WORDS,
TENDING TO CAUSE A BREACH OF THE PEACE:  "YOU SON OF A BITCH, IF YOU
EVER PUT YOUR HANDS ON ME AGAIN, I'LL CUT YOU ALL TO PIECES."'"  ID.,
AT 534, 156 S.E.2D, AT 449. 

/2/  JUDGE SIDNEY O. SMITH, JR., OF GAINESVILLE, GEORGIA, WAS THE
DISTRICT JUDGE.  JUDGE LEWIS R. MORGAN OF NWNAN, GEORGIA, A MEMBER OF
THE COURT OF APPEALS PANEL, SAT AS DISTRICT JUDGE IN GEORGIA BEFORE HIS
APPOINTMENT TO THE COURT OF APPEALS. 

/3/  WE WERE INFORMED IN ORAL ARGUMENT THAT THE COURT OF APPEALS OF
GEORGIA IS A COURT OF STATEWIDE JURISDICTION, THE DECISIONS OF WHICH
ARE BINDING UPON ALL TRIAL COURTS IN THE ABSENCE OF A CONFLICTING
DECISION OF THE SUPREME COURT OF GEORGIA.  FEDERAL COURTS THEREFORE
FOLLOW THESE HOLDINGS AS TO GEORGIA LAW.  FIDELITY UNION TRUST CO. V.
FIELD, 311 U.S. 169 (1940); BERNHARDT V. POLYGRAPHIC CO. OF AMERICA,
350 U.S. 198, 205 (1956). 

/4/  THE DISSENTS QUESTION RELIANCE UPON GEORGIA CASES DECIDED MORE
THAN 50 YEARS AGO.  BUT FISH V. STATE, 124 GA. 416, 52 S.E. 737 (1905),
AND JACKSON V. STATE, 14 GA.APP.  19, 80 S.E. 20 (1913), WERE CITED BY
THE SUPREME COURT OF GEORGIA IN 1967 IN WILSON V. STATE, 223 GA. 531,
156 S.E.2D 446, TO SUPPORT THAT HOLDING.  THUS, FISH AND JACKSON REMAIN
AUTHORITATIVE INTERPRETATIONS OF SEC. 26-6303 BY THE STATE'S HIGHEST
COURT. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

I FULLY JOIN IN MR. JUSTICE BLACKMUN'S DISSENT AGAINST THE BIZARRE
RESULT REACHED BY THE COURT.  IT IS NOT MERELY ODD, IT IS NOTHING LESS
THAN REMARKABLE THAT A COURT CAN FIND A STATE STATUTE VOID ON ITS FACE,
NOT BECAUSE OF ITS LANGUAGE-- WHICH IS THE TRADITIONAL TEST-- BUT
BECAUSE OF THE WAY COURTS OF THAT STATE HAVE APPLIED THE STATUTE IN A
FEW ISOLATED CASES, DECIDED AS LONG AGO AS 1905 AND GENERALLY LONG
BEFORE THIS COURT'S DECISION IN CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S.
568 (1942).  EVEN IF ALL OF THOSE CASES HAD BEEN DECIDED YESTERDAY,
THEY DO NOTHING TO DEMONSTRATE THAT THE NARROW LANGUAGE OF THE GEORGIA
STATUTE HAS ANY SIGNIFICANT POTENTIAL FOR SWEEPING APPLICATION TO
SUPPRESS OR DETER IMPORTANT PROTECTED SPEECH. 

IN PART THE COURT'S DECISION APPEARS TO STEM FROM ITS ASSUMPTION
THAT A STATUTE SHOULD BE REGARDED IN THE SAME LIGHT AS ITS MOST VAGUE
CLAUSE, WITHOUT REGARD TO ANY OF ITS OTHER LANGUAGE.  THUS, SINCE THE
STATUTE CONTAINS THE WORDS "TENDING TO CAUSE A BREACH OF THE PEACE" THE
COURT FINDS ITS RESULT "COMPELLED" BY SUCH DECISSIONS AS ASHTON V.
KENTUCKY, 384 U.S. 195 (1966), AND COX V. LOUISIANA, 379 U.S. 536
(1965).  THE STATUTE AT BAR, HOWEVER, DOES NOT PROHIBIT LANGUAGE
"TENDING TO CAUSE A BREACH OF THE PEACE."  NOR DOES IT PROHIBIT THE USE
OF "OPPROBRIOUS WORDS OR ABUSIVE LANGUAGE" WITHOUT MORE.  RATHER, IT
PROHIBITS USE "TO OR OF ANOTHER, AND IN HIS PRESENCE (OF) OPPROBRIOUS
WORDS OR ABUSIVE LANGUAGE, TENDING TO CAUSE A BREACH OF THE PEACE."  IF
WORDS ARE TO BEAR THEIR COMMON MEANING, AND ARE TO BE CONSIDERED IN
CONTEXT, RATHER THAN DISSECTED WITH SURGICAL PRECISION USING A SEMANTIC
SCALPEL, THIS STATUTE HAS LITTLE POTENTIAL FOR APPLICATION OUTSIDE THE
REALM OF "FIGHTING WORDS" THAT THIS COURT HELD BEYOND THE PROTECTION OF
THE FIRST AMENDMENT IN CHAPLINSKY.  INDEED, THE LANGUAGE USED BY THE
CHAPLINSKY COURT TO DESCRIBE WORDS PROPERLY SUBJECT TO REGULATION BEARS
A STRIKING RESEMBLANCE TO THAT OF THE GEORGIA STATUTE, WHICH WAS
ENACTED MANY, MANY YEARS BEFORE CHAPLINSKY WAS DECIDED.  SEE 315
U.S.,AT 573.  AND IF THE EARLY GEORGIA CASES CITED BY THE MAJORITY
ESTABLISH ANY PROPOSITION, IT IS THAT THE STATUTE, AS ITS LANGUAGE SO
CLEARLY INDICATES, IS AIMED AT PREVENTING PRECISELY THAT TYPE OF
PERSONAL, FACE-TO-FACE ABUSIVE AND INSULTING LANGUAGE LIKELY TO PROVOKE
A VIOLENT RETALIATION-- SELF-HELP, AS WE EUPHEMISTICALLY CALL IT-- THAT
THE CHAPLINSKY CASE RECOGNIZED COULD BE VALIDLY PROHIBITED.  THE FACTS
OF THE CASE NOW BEFORE THE COURT DEMONSTRATE THAT THE GEORGIA STATUTE
IS SERVING THAT VALID AND ENTIRELY PROPER PURPOSE.  THERE IS NO
PERSUASIVE REASON TO WIPE THE STATUTE FROM THE BOOKS, UNLESS WE WANT TO
ENCOURAGE VICTIMS OF SUCH VERBAL ASSAULTS TO SEEK THEIR OWN PRIVATE
REDRESS. 

THE COURT APPARENTLY ACKNOWLEDGES THAT THE CONDUCT OF THE DEFENDANT
IN THIS CASE IS NOT PROTECTED BY THE FIRST AMENDMENT, AND DOES NOT
CONTEND THAT THE GEORGIA STATUTE IS SO AMBIGUOUS THAT HE DID NOT HAVE
FAIR NOTICE THAT HIS CONDUCT WAS PROHIBITED.  NOR DOES THE COURT DENY
THAT UNDER NORMAL PRINCIPLES OF CONSTITUTIONAL ADJUDICATION, APPELLEE
WOULD NOT BE PERMITTED TO ATTACK HIS OWN CONVICTION ON THE GROUND THAT
THE STATUTE IN QUESTION MIGHT IN SOME HYPOTHETICAL SITUATION BE
UNCONSTITUTIONALLY APPLIED TO THE CONDUCT OF SOME PARTY NOT BEFORE THE
COURT.  UNITED STATES V. RAINES, 362 U.S. 17, 21 (1960) (BRENNAN, J.). 
INSTEAD, THE COURT RELIES ON CERTAIN SWEEPING LANGUAGE CONTAINED IN A
FEW OPINIONS FOR THE PROPOSITION THAT, WITHOUT REGARD TO THE NATURE OF
APPELLEE'S CONDUCT, THE STATUTE IN QUESTION MUST BE INVALIDATED ON ITS
FACE UNLESS "IT IS NOT SUSCEPTIBLE OF APPLICATION OF SPEECH, . . . THAT
IS PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS." 

SUCH AN EXPANSIVE STATEMENT OF THE TECHNIQUE OF INVALIDATING STATE
STATUTES ON THEIR FACE BECAUSE OF THEIR SUBSTANTIAL OVERBREADTH FINDS
LITTLE IN POLICY OR THE ACTUAL CIRCUMSTANCES OF THE COURT'S PAST
DECISIONS TO COMMEND IT.  AS THE COURT ITSELF RECOGNIZES, IF THE FIRST
AMENDMENT OVERBREADTH DOCTRINE SERVES ANY LEGITIMATE PURPOSE, IT IS TO
ALLOW THE COURT TO INVALIDATE STATUTES BECAUSE THEIR LANGUAGE
DEMONSTRATES THEIR POTENTIAL FOR SWEEPING IMPROPER APPLICATIONS POSING
A SIGNIFICANT LIKELIHOOD OF DETERRING IMPORTANT FIRST AMENDMENT SPEECH-
NOT BECAUSE OF SOME INSUBSTANTIAL OR IMAGINED POTENTIAL FOR OCCASIONAL
AND ISOLATED APPLICATIONS THAT GO BEYOND CONSTITUTIONAL BOUNDS. 
WRITING IN A RELATED CONTEXT, MR. JUSTICE BLACK, ONLY LAST TERM,
EVIDENCED PROPER REGARD FOR NORMAL PRINCIPLES OF ADJUDICATION WHEN HE
OBSERVED: 

"PROCEDURES FOR TESTING THE CONSTITUTIONALITY OF A STATUTE 'ON ITS
FACE' . . . AND FOR THEN ENJOINING ALL ACTION TO ENFORCE THE STATUTE
UNTIL THE STATE CAN OBTAIN COURT APPROVAL FOR A MODIFIED VERSION, ARE
FUNDAMENTALLY AT ODDS WITH THE FUNCTION OF THE FEDERAL COURTS IN OUR
CONSTITUTIONAL PLAN.  THE POWER AND DUTY OF THE JUDICIARY TO DECLARE
LAWS UNCONSTITUTIONAL IS IN THE FINAL ANALYSIS DERIVED FROM ITS
RESPONSIBILITY FOR RESOLVING CONCRETE DISPUTES BROUGHT BEFORE THE
COURTS FOR DECISION; A STATUTE APPARENTLY GOVERNING A DISPUTE CANNOT BE
APPLIED BY JUDGES . . . WHEN SUCH AN APPLICATION OF THE STATUTE WOULD
CONFLICT WITH THE CONSTITUTION.  MARBURY V. MADISON, 1 CRANCH 137
(1803).  BUT THIS VITAL RESPONSIBILITY, BROAD AS IT IS, DOES NOT AMOUNT
TO AN UNLIMITED POWER TO SURVEY THE STATUTE BOOKS AND PASS JUDGMENT ON
LAWS BEFORE THE COURTS ARE CALLED UPON TO ENFORCE THEM.  . . . (THE
TASK OF ANALYZING A PROPOSED STATUTE, PINPOINTING ITS DEFICIENCIES, AND
REQUIRING CORRECTION OF THESE DEFICIENCIES BEFORE THE STATUTE IS PUT
INTO EFFECT, IS RARELY IF EVER AN APPROPRIATE TASK FOR THE JUDICIARY. 
. . . "  YOUNGER V. HARRIS, 401 U.S. 37, 52-53 (1971).  THESE
OBSERVATIONS WERE DIRECTED SPECIFICALLY TO THE PRACTICE OF ISSUING
FEDERAL COURT INJUNCTIONS AGAINST STATE PROSECUTIONS, BUT THE PROBLEM
PRESENTED BY THIS CASE IS MUCH THE SAME.     CONSISTENT WITH THIS
PROPERLY RESTRAINED APPROACH, THE OVERBREADTH DECISIONS OF THIS COURT,
INCLUDING MOST OF THOSE RELIED ON BY THE MAJORITY, HAVE UP TO NOW
INVALIDATED STATE STATUTES ON THEIR FACE ONLY WHEN THEIR POTENTIAL FOR
SWEEPING AND IMPROPER APPLICATION IN IMPORTANT AREAS OF FIRST AMENDMENT
CONCERN WAS FAR MORE APPARENT-- BOTH FROM THE LANGUAGE OF THE STATUTE
AND THE SUBJECT MATTER OF ITS COVERAGE-- THAN IN THIS CASE.  INDEED, IN
MANY OF THE COURT'S LEADING CASES, THE STATUTE'S IMPROPER SWEEP AND
DETERRENT POTENTIAL WERE AMPLY DOCUMENTED BY THE VERY FACTS OF THE CASE
BEFORE THE COURT.  COX V. LOUISIANA, 379 U.S. 536 (1965), HEAVILY
RELIED ON BY THE MAJORITY, FOR EXAMPLE, INVOLVED A "BREACH OF THE
PEACE" CONVICTION OF A LEADER OF BLACK STUDENTS ON THE BASIS OF HIS
PARTICIPATION IN A PEACEFUL DEMONSTRATION PROTESTING RACIAL
DISCRIMINATION AND A SPEECH URGING A "SIT IN" AT SEGREGATED LUNCH
COUNTERS.  ALTHOUGH THE COURT HELD, IN THE ALTERNATIVE, THAT A
STATUTORY PROHIBITION AGAINST CONGREGATING WITH OTHERS ON A PUBLIC
SIDEWALK "WITH INTENT TO PROVOKE A BREACH OF THE PEACE MAY UNDER
CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED
THEREBY" WAS UNCONSTITUTIONALLY VAGUE AND OVERBROAD, IT IS CLEAR THAT
ITS PRIMARY HOLDING WAS THAT THE STATUTE HAD BEEN UNCONSTITUTIONALLY
APPLIED TO APPELLANT'S CONDUCT AS REVEALED BY THE RECORD BEFORE THE
COURT.  SEE 379 U.S.,AT 545-551.  IN CONTRAST TO TODAY'S OPINION, WHICH
MENTIONS THE FACTS OF THE INSTANT CASE ONLY BY WAY OF PASSING IN A
FOOTNOTE, THE COX OPINION CONTAINED A CAREFUL RECITAL AND EXAMINATION
OF THE FACTS INVOLVED, AND TOOK CARE TO OBSERVE THAT THERE WAS NOT IN
THE RECORD "ANY EVIDENCE . . . OF 'FIGHTING WORDS.'  SEE CHAPLINSKY V.
NEW HAMPSHIRE, 315 U.S. 568," 379 U.S.,AT 551.  IT WAS CLEAR,
THEREFORE, THAT IN COX NOT ONLY THE LANGUAGE OF THE STATUTE, BUT THE
FACTS OF THE VERY CASE BEFORE THE COURT, INVOLVING AS IT DID PROTECTED
POLITICAL SPEECH CONCERNING A BURNING ISSUE OF GREAT SOCIAL CONCERN,
WERE COGENT AND PERSUASIVE EVIDENCE OF THE STATUTE'S POTENTIAL FOR
SWEEPING AND IMPROPER APPLICATIONS.  BY WAY OF CONTRAST, THERE IS
NOTHING IN THE LANGUAGE OF THE GEORGIA STATUTE, OR EVEN IN THE ISOLATED
AND ANCIENT GEORGIA DECISIONS RELIED ON BY THE COURT TODAY THAT
INDICATES THAT THE STATUTE INVOLVED IN THIS CASE HAS EVER BEEN APPLIED
TO SUPPRESS SPEECH EVEN REMOTELY COMPARABLE TO THAT INVOLVED IN COX. 

THERE IS NO NEED TO CONSIDER EACH OF THE OTHER DECISIONS RELIED ON
BY THE MAJORITY TO REACH ITS RESULT IN DETAIL.  SUFFICE IT TO SAY THAT
SUCH CASES AS ASHTON V. KENTUCKY, 384 U.S. 195 (1966); BAGGETT V.
BULLITT, 377 U.S. 360 (1964); NAACP V. BUTTON, 371 U.S. 415 (1963), AND
DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965), AROSE OUT OF FACTUAL
SITUATIONS AND INVOLVED STATUTORY LANGUAGE AND OBJECTIVES SO FAR
DIFFERENT FROM THE INSTANT CASE IN TERMS OF THE ACTUAL AND APPARENT
DANGER OF FREE EXPRESSION THAT THEIR RELEVANCE TO THE CASE AT HAND IS
AT BEST STRAINED AND REMOTE.  /1/ 

THE COURT MAKES A MECHANICAL AND, I SUGGEST, INSENSITIVE APPLICATION
OF THE OVERBREADTH DOCTRINE TODAY.  AS MR. JUSTICE BLACKMUN CORRECTLY
POINTS OUT, IT IS DIFFICULT TO IMAGINE HOW A STATE COULD ENACT A
STATUTE MORE CLEARLY AND NARROWLY AIMED AT REGULATING THE TYPE OF
CONDUCT THAT THE UNANIMOUS HOLDING OF CHAPLINSKY TELLS US MAY BE
REGULATED.  IT IS REGRETTABLE THAT ONE CONSEQUENCE OF THIS HOLDING MAY
BE TO MISLEAD SOME CITIZENS TO BELIEVE THAT FIGHTING WORDS OF THIS KIND
MAY BE UTTERED FREE OF ANY LEGAL SANCTIONS. 

/1/ EVEN ASSUMING THAT THE STATUTE, ON ITS FACE, WERE IMPERMISSIBLY
OVERBROAD, THE COURT DOES NOT SATISFACTORILY EXPLAIN WHY IT MUST BE
INVALIDATED IN ITS ENTIRETY.  TO BE SURE, THE COURT NOTES THAT "WE LACK
JURISDICTION AUTHORITATIVELY TO CONSTRUE STATE LEGISLATION."  BUT THAT
CRYPTIC STATEMENT HARDLY RESOLVES THE MATTER.  THE STATE OF GEORGIA
ARGUES THAT THE STATUTE APPLIES ONLY TO FIGHTING WORDS THAT CHAPLINSKY
HOLDS MAY BE PROHIBITED, AND THE COURT APPARENTLY AGREES THAT THE
STATUTE WOULD BE VALID IF SO LIMITED.  THE COURT SHOULD NOT ASSUME THAT
THE GEORGIA COURTS, AND GEORGIA PROSECUTORS AND POLICE, WOULD IGNORE A
DECISION OF THIS COURT SUSTAINING APPELLEE'S CONVICTION NARROWLY AND ON
THE EXPLICIT PREMISE THAT THE STATUTE MAY BE VALIDLY APPLIED ONLY TO
"FIGHTING WORDS" AS DEFINED IN CHAPLINSKY.  SEE GENERALLY NOTE, THE
FIRST AMENDMENT OVERBREADTH DOCTRINE, 83 HARV.L.REV.  844, 892, 894
896, AND NN. 189, 190 (1970).  WHERE SUCH A CLEAR LINE DEFINING THE
AREA OF CONSTITUTIONAL APPLICATION IS AVAILABLE, THE FACT THAT THE
COURT CANNOT AUTHORITATIVELY CONSTRUE THE STATE STATUTE TO EXCISE ITS
UNCONSTITUTIONAL APPLICATIONS SHOULD MAKE US MORE, NOT LESS, RELUCTANT
TO STRIKE IT DOWN ON ITS FACE.  THIS IS ESPECIALLY SO WHEN THE COURT,
BY RELYING ON OLD GEORGIA CASES TO BOLSTER ITS CONCLUSION, VIRTUALLY
CONCEDES THAT THE PLAIN LANGUAGE DOES NOT OFFEND THE FIRST AMENDMENT. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE JOINS,
DISSENTING. 

IT SEEMS STRANGE, INDEED, THAT IN THIS DAY A MAN MAY SAY TO A POLICE
OFFICER, WHO IS ATTEMPTING TO RESTORE ACCESS TO A PUBLIC BUILDING,
"WHITE SON OF A BITCH, I'LL KILL YOU" AND "YOU SON OF A BITCH, I'LL
CHOKE YOU TO DEATH," AND SAY TO AN ACCOMPANYING OFFICER, "YOU SON OF A
BITCH, IF YOU EVER PUT YOUR HANDS ON ME AGAIN, I'LL CUT YOU ALL TO
PIECES," AND YET CONSTITUTIONALLY CANNOT BE PROSECUTED AND CONVICTED
UNDER A STATE STATUTE THAT MAKES IT A MISDEMEANOR TO "USE TO OR OF
ANOTHER, AND IN HIS PRESENCE . . . OPPROBRIOUS WORDS OR ABUSIVE
LANGUAGE, TENDING TO CAUSE A BREACH OF THE PEACE . . . . "  THIS,
HOWEVER, IS PRECISELY WHAT THE COURT PRONOUNCES AS THE LAW TODAY. 

THE SUPREME COURT OF GEORGIA, WHEN THE CONVICTION WAS APPEALED,
UNANIMOUSLY HELD THE OTHER WAY.  WILSON V. STATE, 223 GA. 531, 156
S.E.2D 446 (1967).  SURELY ANY ADULT WHO CAN READ-- AND I DO NOT
EXCLUDE THIS APPELLEE-DEFENDANT FROM THAT CATEGORY-- SHOULD REASONABLY
EXPECT NO OTHER CONCLUSION.  THE WORDS OF GEORGIA CODE SEC. 26-6303 ARE
CLEAR.  THEY ARE ALSO CONCISE.  THEY ARE NOT, IN MY VIEW, OVERBROAD OR
INCAPABLE OF BEING UNDERSTOOD.  EXCEPT PERHAPS FOR THE "BIG" WORD
"OPPROBRIOUS"-- AND NO POINT IS MADE OF ITS BIGNESS-- ANY GEORGIA
SCHOOLBOY WOULD EXPECT THAT THIS DEFENDANT'S FIGHTING AND PROVOCATIVE
WORDS TO THE OFFICERS WERE COVERED BY SEC. 26-6303.  COMMON SENSE
PERMITS NO OTHER CONCLUSION.  THIS IS DEMONSTRATED BY THE FACT THAT THE
APPELLEE, AND THIS COURT, ATTACK THE STATUTE, NOT AS IT APPLIES TO THE
APPELLEE, BUT AS IT CONCEIVABLY MIGHT APPLY TO OTHERS WHO MIGHT UTTER
OTHER WORDS. 

THE COURT REACHES ITS RESULT BY SAYING THAT THE GEORGIA STATUTE HAS
BEEN INTERPRETED BY THE STATE'S COURTS SO AS TO BE APPLICABLE IN
PRACTICE TO OTHERWISE CONSTITUTIONALLY PROTECTED SPEECH.  IT FOLLOWS,
SAYS THE COURT, THAT THE STATUTE IS OVERBROAD AND THEREFORE IS FACIALLY
UNCONSTITUTIONAL AND TO BE STRUCK DOWN IN ITS ENTIRETY.  THUS GEORGIA
APPARENTLY IS TO BE LEFT WITH NO VALID STATUTE ON ITS BOOKS TO MEET
WILSON'S BULLYING TACTIC.  THIS RESULT, ACHIEVED BY WHAT IS INDEED A
VERY STRICT CONSTRUCTION, WILL BE TOTALLY INCOMPREHENSIBLE TO THE STATE
OF GEORGIA, TO ITS COURTS, AND TO ITS CITIZENS. 

THE COURT WOULD JUSTIFY ITS CONCLUSION BY UNEARTHING A 66-YEAR-OLD
DECISION, FISH V. STATE, 124 GA. 416, 52 S.E. 737 (1905), OF THE
SUPREME COURT OF GEORGIA, AND TWO INTERMEDIATE APPELLATE COURT CASES
OVER 55 YEARS OLD, JACKSON V. STATE, 14 GA.APP.  19, 80 S.E. 20 (1913),
AND ELMORE V. STATE, 15 GA.APP.  461, 83 S.E. 799 (1914), BROADLY
APPLYING THE STATUTE IN THOSE LESS PERMISSIVE DAYS, AND BY ADDITIONAL
REFERENCE TO (A) A 1956 GEORGIA INTERMEDIATE APPELLATE COURT DECISION,
LYONS V. STATE, 94 GA.APP.  570, 95 S.E.2D 478, WHICH, WERE IT THE
FIRST AND ONLY GEORGIA CASE, WOULD SURELY NOT SUPPORT TODAY'S DECISION,
AND (B) ANOTHER INTERMEDIATE APPELLATE COURT DECISION, SAMUELS V.
STATE, 103 GA.APP.  66, 188 S.E.2D 231 (1961), RELATING, NOT TO SEC. 26
6303, BUT TO ANOTHER STATUTE. 

THIS COURT APPEARS TO HAVE DEVELOPED ITS OVERBREADTH RATIONALE IN
THE YEARS SINCE THESE EARLY GEORGIA CASES.  THE STATE'S STATUTE,
THEREFORE, IS CONDEMNED BECAUSE THE STATE'S COURTS HAVE NOT HAD AN
OPPORTUNITY TO ADJUST TO THIS COURT'S MODERN THEORIES OF OVERBREADTH. 

I WONDER, NOW THAT SEC. 26-6303 IS VOIDED, JUST WHAT GEORGIA CAN DO
IF IT SEEKS TO PROSCRIBE WHAT THE COURT SAYS IT STILL MAY
CONSTITUTIONALLY PROSCRIBE.  THE NATURAL THING WOULD BE TO ENACT A NEW
STATUTE READING JUST AS SEC. 26-6303 READS.  BUT IT, TOO, PRESUMABLY
WOULD BE OVERBROAD UNLESS THE LEGISLATURE WOULD ADD WORDS TO THE EFFECT
THAT IT MEANS ONLY WHAT THIS COURT SAYS IT MAY MEAN AND NO MORE.  SEE
CRIMINAL CODE OF GEORGIA SEC. 26-2610 (1969). 

I CANNOT JOIN THE COURT IN PLACING WEIGHT UPON THE FACT THAT JUDGE
SMITH OF THE UNITED STATES DISTRICT COURT HAD BEEN A GEORGIA
PRACTITIONER AND THAT JUDGE MORGAN OF THE COURT OF APPEALS HAD ALSO
PRACTICED IN THAT STATE.  AFTER ALL, EACH OF THESE GEORGIA FEDERAL
JUDGES IS BOUND BY THIS COURT'S SELF-IMPOSED STRAITJACKET OF THE
OVERBREADTH APPROACH.  JUDGE SMITH'S PERSONAL ATTITUDE IS CLEAR, FOR HE
SAID: 

"(THIS COURT DOES NOT SEE ANY POLICY REASONS FOR UPHOLDING THE RIGHT
OF A PERSON TO USE THE TYPE OF LANGUAGE EXPRESSED BY THIS PETITIONER. 
IT STRAINS THE CONCEPT OF FREEDOM OF SPEECH OUT OF PROPORTION WHEN IT
IS ARGUED THAT SUCH LANGUAGE IS AND SHOULD BE PROTECTED."  303 F.SUPP. 
952, 955 (ND GA. 1969).  AND THE COURT OF APPEALS JOINED IN THIS
COMMENT WHEN, ON THE POINT AT ISSUE HERE, IT MERELY AGREED "WITH THE
WELL REASONED OPINION OF THE DISTRICT COURT."  431 F.2D 855, 859 (CA5
1970). 

FOR ME, CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568 (1942), WAS GOOD
LAW WHEN IT WAS DECIDED AND DESERVES TO REMAIN AS GOOD LAW NOW.  A
UNANIMOUS COURT, INCLUDING AMONG ITS MEMBERS CHIEF JUSTICE STONE AND
JUSTICES BLACK, REED, DOUGLAS, AND MURPHY, OBVIOUSLY THOUGHT IT WAS
GOOD LAW.  BUT I FEEL THAT BY DECISIONS SUCH AS THIS ONE AND, INDEED,
COHEN V. CALIFORNIA, 403 U.S. 15 (1971), THE COURT, DESPITE ITS
PROTESTATIONS TO THE CONTRARY, IS MERELY PAYING LIP SERVICE TO
CHAPLINSKY.  AS THE APPELLEE STATES IN A FOOTNOTE TO HIS BRIEF, P. 14,
"ALTHOUGH THERE IS NO DOUBT THAT THE STATE CAN PUNISH 'FIGHTING WORDS'
THIS APPEARS TO BE ABOUT ALL THAT IS LEFT OF THE DECISIONS IN
CHAPLINSKY."  IF THIS IS WHAT THE OVERBREADTH DOCTRINE MEANS, AND IF
THIS IS WHAT IT PRODUCES, IT URGENTLY NEEDS RE-EXAMINATION.  THE COURT
HAS PAINTED ITSELF INTO A CORNER FROM WHICH IT, AND THE STATES, CAN
EXTRICATE THEMSELVES ONLY WITH DIFFICULTY. 

COURTNEY WILDER STANTON, ASSISTANT ATTORNEY GENERAL OF GEORGIA,
ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF WERE ARTHUR K.
BOLTON, ATTORNEY GENERAL, HAROLD N. HILL, JR., EXECUTIVE ASSISTANT
ATTORNEY GENERAL, DOROTHY T. BEASLEY, ASSISTANT ATTORNEY GENERAL, AND
FRANKLIN PIERCE. 

ELIZABETH R. RINDSKOPF ARGUED THE CAUSE FOR APPELLEE.  ON THE BRIEF
WERE HOWARD MOORE, JR., AND PETER E. RINDSKOPF. 
..END :








LYNCH V. HOUSEHOLD FINANCE CORP., 405 U.S. 538 


       LYNCH ET AL. V. HOUSEHOLD FINANCE CORP. ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT

        NO. 70-5058.  ARGUED DECEMBER 7, 1971-- DECIDED MARCH 23,

1972 


APPELLEE HOUSEHOLD FINANCE CORP. SUED APPELLANT LYNCH IN STATE COURT
ALLEGING NONPAYMENT OF A PROMISSORY NOTE, AND, PRIOR TO SERVING HER
WITH PROCESS, GARNISHED HER SAVINGS ACCOUNT UNDER CONNECTICUT LAW
AUTHORIZING SUMMARY PRE-JUDICIAL GARNISHMENT.  APPELLANT CHALLENGED THE
VALIDITY OF THE STATE STATUTES UNDER THE EQUAL PROTECTION AND DUE
PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT, AND SOUGHT DECLARATORY AND
INJUNCTIVE RELIEF UNDER 42 U.S.C. 1983 AND ITS JURISDICTIONAL
COUNTERPART, 28 U.S.C. 1343(3).  THE DISTRICT COURT DISMISSED THE
COMPLAINT ON THE GROUNDS (1) THAT IT LACKED JURISDICTION UNDER SEC.
1343(3), AS THAT SECTION APPLIES ONLY IF "PERSONAL" RIGHTS, AS OPPOSED
TO "PROPERTY" RIGHTS, ARE IMPAIRED, AND (2) THAT RELIEF WAS BARRED BY
28 U.S.C. 2283, PROSCRIBING INJUNCTIONS AGAINST STATE COURT
PROCEEDINGS.  HELD: 

1.  THERE IS NO DISTINCTION BETWEEN PERSONAL LIBERTIES AND
PROPRIETARY RIGHTS WITH RESPECT TO JURISDICTION UNDER 28 U.S.C.
1343(3).  PP. 542-552. 

(A) NEITHER THE LANGUAGE NOR THE LEGISLATIVE HISTORY OF THAT SECTION
DISTINGUISHES BETWEEN PERSONAL AND PROPERTY RIGHTS.  PP. 543-546. 

(B) THERE IS NO CONFLICT BETWEEN THAT SECTION AND 28 U.S.C. 1331,
AND THE LEGISLATIVE HISTORY OF SEC. 1331 DOES NOT PROVIDE ANY BASIS FOR
NARROWING THE SCOPE OF SEC. 1343(3) JURISDICTION.  PP. 546-550. 

(C) IT WOULD BE VIRTUALLY IMPOSSIBLE TO APPLY A "PERSONAL LIBERTIES"
LIMITATION ON SEC. 1343(3) AS THERE IS NO REAL DICHOTOMY BETWEEN
PERSONAL LIBERTIES AND PROPERTY RIGHTS.  IT HAS LONG BEEN RECOGNIZED
THAT RIGHTS IN PROPERTY ARE BASIC CIVIL RIGHTS.  PP. 550-552. 

2.  PREJUDGMENT GARNISHMENT UNDER THE CONNECTICUT STATUTES IS LEVIED
AND MAINTAINED WITHOUT THE PARTICIPATION OF THE STATE COURTS, AND THUS
AN INJUNCTION AGAINST SUCH ACTION IS NOT BARRED BY THE PROVISIONS OF 28
U.S.C. 2283.  PP. 552-556. 

318 F.SUPP.  1111, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, AND MARSHALL, JJ., JOINED.  WHITE, J., FILED A DISSENTING
OPINION, IN WHICH BURGER, C.J., AND BLACKMUN, J., JOINED, POST, P.
556.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASE. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1968, THE APPELLANT, MRS. DOROTHY LYNCH, A RESIDENT OF NEW HAVEN,
CONNECTICUT, DIRECTED HER EMPLOYER TO DEPOSIT $10 OF HER $69 WEEKLY
WAGE IN A CREDIT UNION SAVINGS ACCOUNT.  IN 1969, APPELLEE HOUSEHOLD
FINANCE CORP. SUED MRS. LYNCH FOR $525 IN A STATE COURT, ALLEGING
NONPAYMENT OF A PROMISSORY NOTE.  BEFORE SHE WAS SERVED WITH PROCESS,
THE APPELLEE CORPORATION GARNISHED HER SAVINGS ACCOUNT UNDER THE
PROVISIONS OF CONNECTICUT LAW THAT AUTHORIZE SUMMARY PRE-JUDICIAL
GARNISHMENT AT THE BEHEST OF ATTORNEYS FOR ALLEGED CREDITORS.  /1/ 

THE APPELLANT THEN BROUGHT THIS CLASS ACTION IN A FEDERAL DISTRICT
COURT AGAINST CONNECTICUT SHERIFFS WHO LEVY ON BANK ACCOUNTS AND
AGAINST CREDITORS WHO INVOKE THE GARNISHMENT STATUTE.  /2/  MRS. LYNCH
ALLEGED THAT SHE HAD NO PRIOR NOTICE OF THE GARNISHMENT AND NO
OPPORTUNITY TO BE HEARD.  SHE CLAIMED THAT THE STATE STATUTES WERE
INVALID UNDER THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE
FOURTEENTH AMENDMENT, AND SOUGHT DECLARATORY AND INJUNCTIVE RELIEF
PURSUANT TO 42 U.S.C. 1983 /3/  AND ITS JURISDICTIONAL COUNTERPART, 28
U.S.C. 1343(3).  /4/  A DISTRICT COURT OF THREE JUDGES WAS CONVENED TO
HEAR THE CLAIM UNDER 28 U.S.C. 2281 AND 2284. 

THE DISTRICT COURT DID NOT REACH THE MERITS OF THE CASE.  IT
DISMISSED THE COMPLAINT WITHOUT AN EVIDENTIARY HEARING ON THE GROUNDS
THAT IT LACKED JURISDICTION UNDER SEC. 1343(3) AND THAT RELIEF WAS
BARRED BY THE STATUTE PROHIBITING INJUNCTIONS AGAINST STATE COURT
PROCEEDINGS, 28 U.S.C. 2283.  318 F.SUPP.  1111.  WE NOTED PROBABLE
JURISDICTION, PURSUANT TO 28 U.S.C. 1253, /5/  TO CONSIDER THE
JURISDICTIONAL ISSUES PRESENTED.  401 U.S. 935. 

WE HOLD, FOR THE REASONS THAT FOLLOW, THAT NEITHER SEC. 1343(3) NOR
SEC. 2283 WARRANTED DISMISSAL OF THE APPELLANT'S COMPLAINT. 
ACCORDINGLY, WE REMAND THE CASE TO THE DISTRICT COURT FOR CONSIDERATION
OF THE REMAINING ISSUES IN THIS LITIGATION. 

        I 

IN DISMISSING THE APPELLANT'S COMPLAINT, THE DISTRICT COURT HELD
THAT SEC. 1343(3) APPLIES ONLY IF "PERSONAL" RIGHTS, AS OPPOSED TO
"PROPERTY" RIGHTS, ARE ALLEGEDLY IMPAIRED.  THE COURT RELIED ON THE
DECISION OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN EISEN V.
EASTMAN, 421 F.2D 560, 563, WHICH RESTED, IN TURN, ON MR. JUSTICE
STONE'S WELL-KNOWN OPINION A GENERATION AGO IN HAGUE V. CIO, 307 U.S.
496, 531.  SEE ALSO, E.G., WEDDLE V. DIRECTOR, 436 F.2D 342; BUSSIE V.
LONG, 383 F.2D 766; HOWARD V. HIGGINS, 379 F.2D 227. 

THIS COURT HAS NEVER ADOPTED THE DISTINCTION BETWEEN PERSONAL
LIBERTIES AND PROPRIETARY RIGHTS AS A GUIDE TO THE CONTOURS OF SEC.
1343(3) JURISDICTION.  /6/  TODAY WE EXPRESSLY REJECT THAT
DISTINCTION. 

        A 

NEITHER THE WORDS OF SEC. 1343(3) NOR THE LEGISLATIVE HISTORY OF
THAT PROVISION DISTINGUISHES BETWEEN PERSONAL AND PROPERTY RIGHTS.  IN
FACT, THE CONGRESS THAT ENACTED THE PREDECESSOR OF SECS. 1983 AND
1343(3) SEEMS CLEARLY TO HAVE INTENDED TO PROVIDE A FEDERAL JUDICIAL
FORUM FOR THE REDRESS OF WRONGFUL DEPRIVATIONS OF PROPERTY BY PERSONS
ACTING UNDER COLOR OF STATE LAW. 

THIS COURT HAS TRACED THE ORIGIN OF SEC. 1983 AND ITS JURISDICTIONAL
COUNTERPART TO THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27.  ADICKES V.
KRESS & CO., 398 U.S. 144, 162-163; MONROE V. PAPE, 365 U.S. 167, 171,
183-185.  /7/  THAT ACT GUARANTEED "BROAD AND SWEEPING . . .
PROTECTION" TO BASIC CIVIL RIGHTS.  SULLIVAN V. LITTLE HUNTING PARK,
396 U.S. 229, 237.  ACQUISITION, ENJOYMENT, AND ALIENATION OF PROPERTY
WERE AMONG THOSE RIGHTS.  JONES V. MAYER CO., 392 U.S. 409, 432.  /8/ 

THE FOURTEENTH AMENDMENT VINDICATED FOR ALL PERSONS THE RIGHTS
ESTABLISHED BY THE ACT OF 1866.  MONROE, SUPRA, AT 171; HAGUE, SUPRA,
AT 509-510.  "IT CANNOT BE DOUBTED THAT AMONG THE CIVIL RIGHTS INTENDED
TO BE PROTECTED FROM DISCRIMINATORY STATE ACTION BY THE FOURTEENTH
AMENDMENT ARE THE RIGHTS TO ACQUIRE, ENJOY, OWN AND DISPOSE OF
PROPERTY.  EQUALITY IN THE ENJOYMENT OF PROPERTY RIGHTS WAS REGARDED BY
THE FRAMERS OF THAT AMENDMENT AS AN ESSENTIAL PRE-CONDITION TO THE
REALIZATION OF OTHER BASIC CIVIL RIGHTS AND LIBERTIES WHICH THE
AMENDMENT WAS INTENDED TO GUARANTEE."  SHELLEY V. KRAEMER, 334 U.S. 1,
10.  SEE ALSO, BUCHANAN V. WARLEY, 245 U.S. 60, 74-79; H. FLACK, THE
ADOPTION OF THE FOURTEENTH AMENDMENT 75-78, 81, 90-97 (1908); J.
TENBROEK, THE ANTISLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT (1951). 

THE BROAD CONCEPT OF CIVIL RIGHTS EMBODIED IN THE 1866 ACT AND IN
THE FOURTEENTH AMENDMENT IS UNMISTAKABLY EVIDENT IN THE LEGISLATIVE
HISTORY OF SEC. 1 OF THE CIVIL RIGHTS ACT OF 1871, 17 STAT. 13, THE
DIRECT LINEAL ANCESTOR OF SECS. 1983 AND 1343(3).  NOT ONLY WAS SEC. 1
OF THE 1871 ACT DERIVED FROM SEC. 2 OF THE 1866 ACT, /9/  BUT THE 1871
ACT WAS PASSED FOR THE EXPRESS PURPOSE OF "ENFORCING) THE PROVISIONS OF
THE FOURTEENTH AMENDMENT."  17 STAT. 13.  AND THE RIGHTS THAT CONGRESS
SOUGHT TO PROTECT IN THE ACT OF 1871 WERE DESCRIBED BY THE CHAIRMAN OF
THE HOUSE SELECT COMMITTEE THAT DRAFTED THE LEGISLATION AS "THE
ENJOYMENT OF LIFE AND LIBERTY, WITH THE RIGHT TO ACQUIRE AND POSSESS
PROPERTY OF EVERY KIND, AND TO PURSUE AND OBTAIN HAPPINESS AND
SAFETY."  CONG. GLOBE, 42D CONG., 1ST SESS., APP. 69 (1871) (REP.
SHELLABARGER, QUOTING FROM CORFIELD V. CORYELL, 6 F.CAS.  546, 551-552
(NO. 3230) (CCED PA.)).  THAT THE PROTECTION OF PROPERTY AS WELL AS
PERSONAL RIGHTS WAS INTENDED IS ALSO CONFIRMED BY PRESIDENT GRANT'S
MESSAGE TO CONGRESS URING PASSAGE OF THE LEGISLATION, /10/  AND BY THE
REMARKS OF MANY MEMBERS OF CONGRESS DURING THE LEGISLATIVE DEBATES. 
/11/

        B 

IN 1875, CONGRESS GRANTED THE FEDERAL COURTS JURISDICTION OF "ALL
SUITS OF A CIVIL NATURE AT COMMON LAW OR IN EQUITY . . . ARISING UNDER
THE CONSTITUTION OR LAWS OF THE UNITED STATES."  18 STAT. 470.  UNLIKE
SEC. 1343(3), THIS GENERAL FEDERAL-QUESTION PROVISION, THE FORERUNNER
OF 28 U.S.C. 1331, REQUIRED THAT A MINIMUM AMOUNT IN CONTROVERSY BE
ALLEGED AND PROVED.  /12/  MR. JUSTICE STONE'S OPINION IN HAGUE, SUPRA,
AS WELL AS THE FEDERAL COURT DECISIONS THAT FOLLOWED IT, E.G., EISEN V.
EASTMAN, 421 F.2D 560, REFLECT THE VIEW THAT THERE IS AN APPARENT
CONFLICT BETWEEN SECS. 1343(3) AND 1331, /13/  I.E., THAT A BROAD
READING OF SEC. 1343(3) TO INCLUDE ALL RIGHTS SECURED BY THE
CONSTITUTION WOULD RENDER SEC. 1331, AND ITS AMOUNT-IN-CONTROVERSY
REQUIREMENT, SUPERFLUOUS.  THESE OPINIONS SOUGHT TO HARMONIZE THE TWO
JURISDICTIONAL PROVISIONS BY CONSTRUING SEC. 1343(3) AS CONFERRING
FEDERAL JURISDICTION OF SUITS BROUGHT UNDER SEC. 1983 ONLY WHEN THE
RIGHT ASSERTED IS PERSONAL, NOT PROPRIETARY. 

THE INITIAL FAILURE OF THIS REASONING IS THAT THE SUPPOSED CONFLICT
BETWEEN SECS. 1343(3) AND 1331 SIMPLY DOES NOT EXIST.  SECTION 1343(3)
APPLIES ONLY TO ALLEGED INFRINGEMENTS OF RIGHTS UNDER "COLOR OF . . .
STATE LAW," WHEREAS SEC. 1331 CONTAINS NO SUCH REQUIREMENT.  THUS, FOR
EXAMPLE, IN SUITS AGAINST FEDERAL OFFICIALS FOR ALLEGED DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS, IT IS NECESSARY TO SATISFY THE AMOUNT-IN
CONTROVERSY REQUIREMENT FOR FEDERAL JURISDICTION.  SEE OESTEREICH V.
SELECTIVE SERVICE BOARD, 393 U.S. 233; BIVENS V. SIX UNKNOWN NAMED
AGENTS, 403 U.S. 388. 

BUT THE MORE FUNDAMENTAL POINT TO BE MADE IS THAT ANY SUCH
CONTRACTION OF SEC. 1343(3) JURISDICTION IS NOT SUPPORTED BY THE
LEGISLATIVE HISTORY OF SEC. 1331.  THE 1875 ACT GIVING THE FEDERAL
COURTS POWER TO HEAR SUITS ARISING UNDER ART. III, SEC. 2, OF THE
CONSTITUTION WAS, LIKE THE ACT OF 1871, AN EXPANSION OF NATIONAL
AUTHORITY OVER MATTERS THAT, BEFORE THE CIVIL WAR, HAD BEEN LEFT TO THE
STATES.  F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT
65 (1928); ZWICKLER V. KOOTA, 389 U.S. 241, 245-248; CHADBOURN & LEVIN,
ORIGINAL JURISDICTION OF FEDERAL QUESTIONS, 90 U.PA.L.REV.  639, 645
(1942).  THE ACT, THEREFORE, IS "CLEARLY . . . PART OF, RATHER THAN AN
EXCEPTION TO, THE TREND OF LEGISLATION WHICH PRECEDED IT."  CHADBOURN &
LEVIN, SUPRA, AT 645; ZWICKLER, SUPRA.  THERE WAS VERY LITTLE
DISCUSSION OF THE MEASURE BEFORE ITS ENACTMENT, IN CONTRAST TO THE
EXTENSIVE CONGRESSIONAL DEBATE THAT ATTENDED THE PASSAGE OF THE ACT OF
1871.  /14/  AND THERE IS, AS A RESULT, NO INDICATION WHATSOEVER THAT
CONGRESS, IN A RATHER HASTILY PASSED MEASURE, INTENDED TO NARROW THE
SCOPE OF A PROVISION PASSED FOUR YEARS EARLIER AS PART OF MAJOR CIVIL
RIGHTS LEGISLATION.  /15/ 

THE "CARDINAL RULE . . . THAT REPELS BY IMPLICATION ARE NOT
FAVORED," POSADAS V. NATIONAL CITY BANK, 296 U.S. 497, 503; JONES V.
MAYER CO., 392 U.S.,AT 437, THUS COUNSELS A REFUSAL TO PARE DOWN SEC.
1343(3) JURISDICTION-- AND THE SUBSTANTIVE SCOPE OF SEC. 1983-- BY
MEANS OF THE DISTINCTION BETWEEN PERSONAL LIBERTIES AND PROPERTY
RIGHTS, OR IN ANY OTHER WAY.  THE STATUTORY DESCENDANTS OF SEC. 1 OF
THE CIVIL RIGHTS ACT OF 1871 MUST BE GIVEN THE MEANING AND SWEEP THAT
THEIR ORIGINS AND THEIR LANGUAGE DICTATE.  /16/ 

MOREOVER, ALTHOUGH THE PURPOSE OF THE AMOUNT-IN-CONTROVERSY
REQUIREMENT IS TO REDUCE CONGESTION IN THE FEDERAL COURTS, S. REP. NO.
1830, 85TH CONG., 2D SESS. (1958), CONGRESS HAS SUBSTANTIALLY LESSENED
ITS IMPORTANCE WITH RESPECT TO SEC. 1331 BY PASSING MANY STATUTES THAT
CONFER FEDERAL-QUESTION JURISDICTION WITHOUT AN AMOUNT-IN-CONTROVERSY
REQUIREMENT.  /17/  SO IT WAS THAT WHEN CONGRESS INCREASED THE
JURISDICTIONAL AMOUNT FROM $3,000 TO $10,000, ACT OF JULY 25, 1958, 72
STAT. 415, IT MADE CLEAR THAT ITS PRIMARY CONCERN WAS TO REDUCE THE
FEDERAL JUDICIARY'S WORKLOAD WITH REGARD TO CASES ARISING UNDER FEDERAL
DIVERSITY JURISDICTION, 28 U.S.C. 1332, NOT UNDER SEC. 1331.  /18/ 

A FINAL, COMPELLING REASON FOR REJCTING A "PERSONAL LIBERTIES"
LIMITATION UPON SEC. 1343(3) IS THE VIRTUAL IMPOSSIBILITY OF APPLYING
IT.  /19/  THE FEDERAL COURTS HAVE BEEN PARTICULARLY BEDEVILED BY
"MIXED" CASES IN WHICH BOTH PERSONAL AND PROPERTY RIGHTS ARE
IMPLICATED, AND THE LINE BETWEEN THEM HAS BEEN DIFFICULT TO DRAW WITH
ANY CONSISTENCY OR PRINCIPLED OBJECTIVITY.  /20/  THE CASE BEFORE US
PRESENTS A GOOD EXAMPLE OF THE CONCEPTUAL DIFFICULTIES CREATED BY THE
TEST.  /21/ 

SUCH DIFFICULTIES INDICATE THAT THE DICHOTOMY BETWEEN PERSONAL
LIBERTIES AND PROPERTY RIGHTS IS A FALSE ONE.  PROPERTY DOES NOT HAVE
RIGHTS.  PEOPLE HAVE RIGHTS.  THE RIGHT TO ENJOY PROPERTY WITHOUT
UNLAWFUL DEPRIVATION, NO LESS THAN THE RIGHT TO SPEAK OR THE RIGHT TO
TRAVEL, IS IN TRUTH A "PERSONAL" RIGHT, WHETHER THE "PROPERTY" IN
QUESTION BE A WELFARE CHECK, A HOME, OR A SAVINGS ACCOUNT.  IN FACT, A
FUNDAMENTAL INTERDEPENDENCE EXISTS BETWEEN THE PERSONAL RIGHT TO
LIBERTY AND THE PERSONAL RIGHT IN PROPERTY.  NEITHER COULD HAVE MEANING
WITHOUT THE OTHER.  THAT RIGHTS IN PROPERTY ARE BASIC CIVIL RIGHTS HAS
LONG BEEN RECOGNIZED.  J. LOCKE, OF CIVIL GOVERNMENT 82-85 (1924); J.
ADAMS, A DEFENCE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED
STATES OF AMERICA, IN F. COKER, DEMOCRACY, LIBERTY, AND PROPERTY 121
132 (1942); 1 W.BLACKSTONE, COMMENTARIES *138-140.  CONGRESS RECOGNIZED
THESE RIGHTS IN 1871 WHEN IT ENACTED THE PREDECESSOR OF SECS. 1983 AND
1343(3).  WE DO NO MORE THAN REAFFIRM THE JUDGMENT OF CONGRESS TODAY. 

        II 

UNDER 28 U.S.C. 2283, A FEDERAL COURT MAY NOT "GRANT AN INJUNCTION
TO STAY PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY
ACT OF CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO
PROTECT OR EFFECTUATE ITS JUDGMENTS."  THE DISTRICT COURT RELIED UPON
THIS STATUTE AS AN ALTERNATIVE GROUND FOR THE DISMISSAL OF THE
APPELLANT'S COMPLAINT.  THE APPELLANT CONTENDS THAT SEC. 2283 IS
INAPPLICABLE TO THIS CASE BECAUSE PREJUDGMENT GARNISHMENT UNDER CONN.
GEN. STAT. REV. SEC. 52-329 /22/  IS NOT A PROCEEDING IN STATE COURT. 
WE AGREE.  /23/ 

IN CONNECTICUT, GARNISHMENT IS INSTITUTED WITHOUT JUDICIAL ORDER. 
IBID; 1 E.STEPHENSON, CONNECTICUT CIVIL PROCEDURE 151 (1D ED. 1970). 
/24/  THE LEVY OF GARNISHMENT-- USUALLY EFFECTED BY A DEPUTY SHERIFF--
DOES NOT CONFER JURISDICTION ON STATE COURTS AND MAY, IN FACT, OCCUR
PRIOR TO COMMENCEMENT OF AN ALLEGED CREDITOR'S SUIT.  YOUNG V.
MARGIOTTA, 136 CONN. 429, 433, 71 A.2D 924, 926.  DESPITE THE STATE
COURT'S CONTROL OVER THE PLAINTIFF'S DOCKETED CASE, GARNISHMENT IS
"DISTINCT FROM AND INDEPENDENT OF THAT ACTION."  POTTER V. APPLEBY, 136
CONN. 641, 643, 73 A.2D 819, 820.  THE GARNISHED PROPERTY IS SECURED,
NOT UNDER AUTHORITY OF THE COURT, BUT MERELY IN THE HANDS OF THE
GARNISHEE.  CONN. GEN. STAT. REV. SEC. 52-329.  PREJUDGMENT GARNISHMENT
IS THUS LEVIED AND MAINTAINED WITHOUT THE PARTICIPATION OF THE STATE
COURTS. 

IN THIS CASE, THE APPELLANT SOUGHT TO ENJOIN GARNISHMENT
PROCEEDINGS, NOT THE FINANCE COMPANY'S SUIT ON THE PROMISSORY NOTE. 
THE DISTRICT COURT NOTED THAT "GARNISHMENT MAY BE SEPARATED FROM THE
UNDERLYING IN PERSONAM ACTION," BUT HELD THAT SEC. 2283 WAS A BAR
BECAUSE THE INTERFERENCE WITH EXISTING CREDITORS' SUITS CAUSED BY SUCH
AN INJUNCTION "PROBABLY WOULD BE SUBSTANTIAL."  318 F.SUPP.,AT 1115. 
ACCORDING TO THE APPELLEES, INTERFERENCE WOULD OCCUR BECAUSE
GARNISHMENT IS NECESSARY TO MAKE ANY EVENTUAL JUDGMENT IN THE PENDING
STATE SUIT EFFECTIVE.  HILL V. MARTIN, 296 U.S. 393, 403.     THIS
ARGUMENT IS NOT PERSUASIVE IN THE CONTEXT OF THE CONNECTICUT
PREJUDGMENT GARNISHMENT SCHEME.  GARNISHMENT MIGHT SERVE TO MAKE A
SUBSEQUENT JUDGMENT EFFECTIVE.  CF. HILL, SUPRA; MANUFACTURERS RECORD
PUBLISHING CO. V. LAUER, 268 F.2D 187, CERT. DENIED, 361 U.S. 913;
FURNISH V. BOARD OF MEDICAL EXAMINERS OF CALIFORNIA, 257 F.2D 520,
CERT. DENIED, 358 U.S. 882.  BUT THE GARNISHMENT WAS, IN THIS CASE, AN
ACTION TAKEN BY PRIVATE PARTIES WHO WERE NOT PROCEEDING UNDER A COURT'S
SUPERVISION /25/  AND WHO WERE USING, AS AGENTS, STATE OFFICIALS WHO
WERE THEMSELVES NOT ACTING PURSUANT TO A COURT ORDER OR UNDER A COURT'S
AUTHORITY.     IN HILL, SUPRA, WE SAID THAT THE "PROCEEDING" THAT A
FEDERAL COURT IS FORBIDDEN TO ENJOIN "INCLUDES ALL STEPS TAKEN OR WHICH
MAY BE TAKEN IN THE STATE COURT OR BY ITS OFFICERS FROM THE INSTITUTION
TO THE CLOSE OF THE FINAL PROCESS."  ID., AT 403.  IN THIS CASE, THE
GARNISHMENT OCCURRED BEFORE THE APPELLEE CORPORATION HAD SERVED THE
APPELLANT WITH PROCESS. 

MORE IMPORTANT, THE STATE COURT AND ITS OFFICERS ARE INSULATED FROM
CONTROL OVER THE GARNISHMENT.  CONNECTICUT APPEARS TO BE ONE OF THE FEW
STATES AUTHORIZING AN ATTORNEY FOR AN ALLEGED CREDITOR TO GARNISH OR
ATTACH PROPERTY WITHOUT ANY PARTICIPATION BY A JUDGE OR CLERK OF THE
COURT.  STEPHENSON, SUPRA, AT 230.  A PERSON WHOSE ACCOUNT HAS BEEN
SEIZED CAN GET ONLY MINIMAL RELIEF AT BEST.  /26/  THE STATE COURTS
HAVE HELD THAT THEY CANNOT ENJOIN A GARNISHMENT ON THE GROUND THAT IT
WAS LEVIED UNCONSTITUTIONALLY.  MICHAEL'S JEWELERS V. HANDY, 6
CONN.CIR.  103, 266 A.2D 904; HARRIS V. BARONE, 147 CONN. 233, 158 A.2D
855.  ONE ASSUMPTION UNDERLYING SEC. 2283 IS THAT STATE COURTS WILL
VINDICATE CONSTITUTIONAL CLAIMS AS FAIRLY AND EFFICIENTLY AS FEDERAL
COURTS.  BUT THIS ASSUMPTION CANNOT OBTAIN WHEN THE DOORS OF THE STATE
COURTS ARE EFFECTIVELY CLOSED TO A PERSON SEEKING TO ENJOIN A
GARNISHMENT ON CONSTITUTIONAL GROUNDS. 

BECAUSE OF THE EXTRAJUDICIAL NATURE OF CONNECTICUT GARNISHMENT, AN
INJUNCTION AGAINST ITS MAINTENANCE IS NOT, THEREFORE, BARRED BY THE
TERMS OF SEC. 2283.  IN LIGHT OF THIS CONCLUSION, WE NEED NOT DECIDE
WHETHER SEC. 1983 IS AN EXCEPTION TO SEC. 2283 "EXPRESSLY AUTHORIZED BY
ACT OF CONGRESS."  WE HAVE EXPLICITLY LEFT THAT QUESTION OPEN IN OTHER
DECISIONS.  /27/  AND WE MAY PUT IT TO ONE SIDE IN THIS CASE BECAUSE
THE STATE ACT THAT THE FEDERAL COURT WAS ASKED TO ENJOIN WAS NOT A
PROCEEDING "IN A STATE COURT" WITHIN THE MEANING OF SEC. 2283. 

WE CONCLUDE, THEREFORE, THAT THE DISTRICT COURT HAD JURISDICTION TO
ENTERTAIN THE APPELLANT'S SUIT FOR AN INJUNCTION UNDER SEC. 1983. 
ACCORDINGLY, THE JUDGMENT BEFORE US IS REVERSED, AND THE CASE REMANDED
FOR FUTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE GARNISHMENT WAS LEVIED PURSUANT TO CONN. GEN. STAT. REV.
SEC. 52-329.  FOR A FURTHER DESCRIPTION OF CONNECTICUT'S STATUTORY
GARNISHMENT SCHEME, SEE PART II OF THIS OPINION, INFRA. 

/2/  THE SECOND NAMED APPELLANT, NORMA TORO, HAD HER CHECKING
ACCOUNT GARNISHED BY HER FORMER LANDLORD, ONE EUGENE COMPOSANO. 
SUBSEQUENTLY COMPOSANO RELEASED THE GARNISHMENT.  AN ISSUE OF MOOTNESS-
WHICH WAS NOT RESOLVED BY THE DISTRICT COURT-- IS THUS PRESENTED.  WE
DO NOT, HOWEVER, REACH THIS ISSUE.  APPELLANT LYNCH HAD A SAVINGS
ACCOUNT GARNISHED, APPELLANT TORO A CHECKING ACCOUNT.  THE
CONSIDERATIONS APPLICABLE TO ONE TYPE OF ACCOUNT SEEM IDENTICAL TO
THOSE APPLICABLE TO THE OTHER.  IN THIS OPINION, THEREFORE, WE SHALL
ONLY REFER TO THE CASE OF APPELLANT LYNCH. 

AN ISSUE IS ALSO RAISED AS TO THE PROPRIETY OF THE CLASSES PURPORTED
TO BE REPRESENTED BY THE APPELLANTS AND APPELLEES.  IN VIEW OF OUR
DISPOSITION OF THE CASE, WE LEAVE THIS ISSUE FOR CONSIDERATION BY THE
DISTRICT COURT UPON REMAND. 

/3/  THE STATUTE PROVIDES: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

/4/  THE STATUTE STATES IN RELEVANT PART: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION AUTHORIZED BY LAW TO BE COMMENCED BY ANY PERSON:

        .     .          .          . 

"(3) TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,
STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT,
PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED STATES
OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF CITIZENS OR OF
ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES . . . . " 

/5/ THE APPELLEES ARGUE THAT WE HAVE NO JURISDICTION TO CONSIDER
THIS CASE ON DIRECT APPEAL FROM THE THREE-JUDGE DISTRICT COURT, 28
U.S.C. 1253, BECAUSE THE COURT DID NOT REACH THE MERITS OF THE
APPELLANT'S CLAIM FOR AN INJUNCTION BUT DISMISSED FOR LACK OF SUBJECT
MATTER JURISDICTION. 

BUT WHETHER A DIRECT APPEAL WILL LIE DEPENDS ON "WHETHER THE THREE
JUDGE (COURT WAS) PROPERLY CONVENED."  MOODY V. FLOWERS, 387 U.S. 97,
99.  THIS ACTION CHALLENGES THE CONSTITUTIONALITY OF A STATE STATUTE
AND SEEKS TO ENJOIN ITS ENFORCEMENT.  THE QUESTIONS IT RAISES ARE
SUBSTANTIAL.  IT, THEREFORE, MEETS THE REQUIREMENTS FOR CONVENING A
THREE-JUDGE COURT.  28 U.S.C. 2281; IDLEWILD BON VOYAGE LIQUOR CORP. V.
EPSTEIN, 370 U.S. 713, 715.  THIS CASE MAY, THEREFORE, BE DISTINGUISHED
FROM PEREZ V. LEDESMA, 401 U.S. 82, UPON WHICH THE APPELLEES RELY.  IN
THAT CASE, WE HAD NO POWER TO CONSIDER THE MERITS OF AN APPEAL BECAUSE
THE ORDINANCE IN QUESTION WAS NEITHER A STATE STATUTE NOR OF STATEWIDE
APPLICATION.  PEREZ, SUPRA, AT 89 (CONCURRING OPINION).  WHEN A STATE
STATUTE IS CHALLENGED AND INJUNCTIVE RELIEF SOUGHT, WE HAVE GRANTED
DIRECT REVIEW PURSUANT TO SEC. 1253 ALTHOUGH THREE-JUDGE COURTS
DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION, BAKER V. CARR, 369
U.S. 186, ABERNATHY V. CARPENTER, 373 U.S. 241, DOUD V. HODGE, 350 U.S.
485, FLORIDA LIME GROWERS V. JACOBSEN, 362 U.S. 73, OR BECAUSE RELIEF
WAS THOUGHT TO BE BARRED BY 28 U.S.C. 2283, CAMERON V. JOHNSON, 390
U.S. 611. 

THE APPELLEES ALSO NOTE THAT SEC. 1253 PERMITS APPEALS TO THIS COURT
ONLY FROM ORDERS "GRANTING OR DENYING . . . AN INTERLOCUTORY OR
PERMANENT INJUNCTION . . . . "  THEY ARGUE THAT SINCE THE THREE-JUDGE
COURT NEVER CONSIDERED WHETHER AN INJUNCTION SHOULD BE GRANTED AN
APPEAL SHOULD LIE TO THE COURT OF APPEALS.  THE THREE-JUDGE COURT,
HOWEVER, ENTERED A JUDGMENT "DENYING ALL RELIEF SOUGHT BY PLAINTIFFS." 
WE THEREFORE HAVE JURISDICTION TO CONSIDER THE CLAIMS PRESENTED. 

/6/  THE APPELLEES CITE THREE CASES DECIDED BY THIS COURT BEFORE
HAGUE V. CIO, 307 U.S. 496, THAT, THEY SAY, SUPPORT THE LIMITATION OF
SEC. 1343(3) JURISDICTION TO CLAIMS OF DEPRIVATION OF PERSONAL
LIBERTIES.  CARTER V. GREENHOW, 114 U.S. 317; PLEASANTS V. GREENHOW,
114 U.S. 323; HOLT V. INDIANA MFG. CO., 176 U.S. 68.  THE APPELLEES
ALSO RELY ON TWO RECENT AFFIRMANCES, WITHOUT OPINION, OF DECISIONS BY
THREE-JUDGE DISTRICT COURTS DISMISSING SEC. 1343(3) SUITS ON THE GROUND
THAT THE RIGHTS ALLEGEDLY INFRINGED WERE PROPRIETARY.  HORNBEAK V.
HAMM, 393 U.S. 9, AFF'G 283 F.SUPP.  549 (MD ALA. 1968); ABERNATHY V.
CARPENTER, 373 9U.S. 241, AFF'G 208 F.SUPP.  793 (WD MO. 1962). 

ALL OF THESE CASES INVOLVED CONSTITUTIONAL CHALLENGES TO THE
COLLECTION OF STATE TAXES.  CONGRESS HAS TREATED JUDICIAL INTERFERENCE
WITH THE ENFORCEMENT OF STATE TAX LAWS AS A SUBJECT GOVERNED BY UNIQUE
CONSIDERATIONS AND HAS RESTRICTED FEDERAL JURISDICTION ACCORDINGLY: 

"THE DISTRICT COURTS SHALL NOT ENJOIN, SUSPEND OR RESTRAIN THE
ASSESSMENT, LEVY OR COLLECTION OF ANY TAX UNDER STATE LAW WHERE A
PLAIN, SPEEDY AND EFFICIENT REMEDY MAY BE HAD IN THE COURTS OF SUCH
STATE."  28 U.S.C. 1341. 

WE HAVE REPEATEDLY BARRED ANTICIPATORY FEDERAL ADJUDICATION OF THE
VALIDITY OF STATE TAX LAWS.  DOWS V. CITY OF CHICAGO, 11 WALL.  108;
MATTHEWS V. RODGERS, 284 U.S. 521; GREAT LAKES DREDGE & DOCK CO. V.
HUFFMAN, 319 U.S. 293; SEE ALSO PEREZ V. LEDESMA, 401 U.S.,AT 126-127,
N. 17 (OPINION OF BRENNAN, J.).  THE DECISIONS CITED BY APPELLEES MAY,
THEREFORE, BE SEEN AS CONSISTENT WITH CONGRESSIONAL RESTRICTION OF
FEDERAL JURISDICTION IN THIS SPECIAL CLASS OF CASES, AND WITH
LONGSTANDING JUDICIAL POLICY. 

/7/  SECTION 2 OF THE 1866 ACT WAS THE MODEL FOR SEC. 1 OF THE CIVIL
RIGHTS ACT OF 1871, 17 STAT. 13.  SEE N. 9, INFRA.  SECTIONS 1983 AND
1343(3) ARE DIRECT DESCENDANTS OF SEC. 1 OF THE ACT OF 1871.  IN 1874,
CONGRESS CONSOLIDATED THE VARIOUS FEDERAL STATUTES AT LARGE UNDER
SEPARATE TITLES IN THE REVISED STATUTES IN ORDER TO CODIFY EXISTING
LAW.  IN THE PROCESS, THE SUBSTANTIVE PROVISION HAD PROTECTED RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION, THE PROVISION IN
THE REVISED STATUTES WAS ENLARGED TO PROVIDE PROTECTION FOR RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED BY FEDERAL LAW AS WELL. 

ORIGINALLY, SUITS UNDER SEC. 1 OF THE 1871 ACT COULD BE BROUGHT IN
EITHER CIRCUIT OR DISTRICT COURT.  AFTER CODIFICATION IN 1874, THE
JURISDICTIONAL GRANT TO THE DISTRICT COURTS WAS IDENTICAL IN SCOPE WITH
THE EXPANDED SUBSTANTIVE PROVISION, REV. STAT. SEC. 563 (12).  CIRCUIT
COURT JURISDICTION WAS LIMITED TO CLAIMED DEPRIVATIONS OF RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION OR BY ANY ACT OF
CONGRESS "PROVIDING FOR EQUAL RIGHTS."  REV. STAT. SEC. 629 (16).  IN
1911, WHEN CONGRESS ABOLISHED THE CIRCUIT COURT'S ORIGINAL JURISDICTION
AND MERGED THE TWO JURISDICTIONAL SECTIONS INTO WHAT IS NOW SEC. 1343
(3), THE "EQUAL RIGHTS" LIMITATION WAS RETAINED IN THE REVISED
JURISDICTIONAL GRANT.  ACT OF MAR. 3, 1911, 36 STAT. 1087.  DESPITE THE
DIFFERENT WORDING OF THE SUBSTANTIVE AND JURISDICTIONAL PROVISIONS,
WHEN THE SEC. 1983 CLAIM ALLEGES CONSTITUTIONAL VIOLATIONS, SEC. 1343
(3) PROVIDES JURISDICTION AND BOTH SECTIONS ARE CONSTRUED IDENTICALLY. 
DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157, 161. 

/8/  SEE GENERALLY REPORT OF C. SHURZ, S. EXEC. DOC. NO. 2, 39TH
CONG., 1ST SESS. (1865); CONG. GLOBE, 39TH CONG., 1ST SESS., 3034-3035
AND APP. 219 (1866); J. TENBROEK, THE ANTISLAVERY ORIGINS OF THE
FOURTEENTH AMENDMENT (1951); FRANK & MUNRO, THE ORIGINAL UNDERSTANDING
OF "EQUAL PROTECTION OF THE LAWS," 50 COL.L.REV.  131, 144-145 (1950). 

/9/  SECTION 2 OF THE 1866 CIVIL RIGHTS ACT, 14 STAT. 27, CURRENTLY
CODIFIED IN SLIGHTLY DIFFERENT FORM AS 18 U.S.C. 242, READ IN PERTINENT
PART: 

"(ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, OR CUSTOM, SHALL SUBJECT, OR CAUSE TO BE SUBJECTED, ANY
INHABITANT OF ANY STATE . . . TO THE DEPRIVATION OF ANY RIGHT SECURED
OR PROTECTED BY THIS ACT, OR TO DIFFERENT PUNISHMENT, PAINS, OR
PENALTIES ON ACCOUNT OF SUCH PERSON HAVING AT ANY TIME BEEN HELD IN A
CONDITION OF SLAVERY OR INVOLUNTARY SERVITUDE . . . SHALL BE DEEMED
GUILTY OF A MISDEMEANOR . . . . " 

THE 1866 ACT.  SCREWS V. UNITED STATES, 325 U.S. 91, 98-100.  THE
LATTER SECTION ENUMERATED THE RIGHTS THE ACT PROTECTED, INCLUDING,
INTER ALIA, THE RIGHT "TO MAKE AND ENFORCE CONTRACTS, TO SUE . . . TO
INHERIT PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL
PROPERTY.  . . . " 

REPRESENTATIVE SHELLABARGER, CHAIRMAN OF THE HOUSE SELECT COMMITTEE
WHICH DRAFTED THE CIVIL RIGHTS ACT OF 1871, STATED THAT 

"THE MODEL FOR (SEC. 1 OF THE 1871 ACT) WILL BE FOUND IN THE SECOND
THAT SECTION PROVIDES A CRIMINAL PROCEEDING IN IDENTICALLY THE SAME
CASE AS THIS ONE PROVIDES A CIVIL REMEDY . . . . "  CONG. GLOBE, 42D
CONG., 1ST SESS., APP. 68 (1871). 

/10/  THE PRESIDENT, IN A MESSAGE DATED MARCH 23, 1871, STATED: 

"A CONDITION OF AFFAIRS NOW EXISTS IN SOME STATES OF THE UNION
RENDERING LIFE AND PROPERTY INSECURE . . . . I URGENTLY RECOMMEND SUCH
LEGISLATION AS IN THE JUDGMENT OF CONGRESS SHALL EFFECTUALLY SECURE
LIFE, LIBERTY, AND PROPERTY, AND THE ENFORCEMENT OF LAW IN ALL PARTS OF
THE UNITED STATES."  CONG. GLOBE, 42D CONG., 1ST SESS., 244. 

/11/  SEE, E.G., CONG. GLOBE, 42D CONG., 1ST SESS., 332-334 (REP.
HOAR); 369-370 (REP. MONROE); 375-376 (REP. LOWE); 429 (REP. BEATTY);
448 (REP. BUTLER); 459-461 (REP. COBURN); 475-476 (REP. DAWES); 501
(SEN. FRELINGHUYSEN); 568 (SEN. EDMUNDS); 577 (SEN. CARPENTER); 607
(SEN. POOL); 650-651 (SEN. SUMNER); 653 (SEN. OSBORN); 666 (SEN.
SPENCER). 

SEE ALSO S. REP. NO. 1, 42D CONG., 1ST SESS. (1871).  SEVERAL MONTHS
BEFORE THE PASSAGE OF THE CIVIL RIGHTS ACT OF 1871, A SENATE COMMITTEE
WAS FORMED TO INVESTIGATE CONDITIONS IN THE SOUTHERN STATES.  ONE
PURPOSE OF THE INVESTIGATION WAS TO "ASCERTAIN . . . WHETHER PERSONS
AND PROPERTY ARE SECURE . . . . "  ID., AT II. 

/12/  THE JURISDICTIONAL AMOUNT WAS INCREASED FROM $500 TO $2,000 BY
THE ACT OF MAR. 3, 1887, 24 STAT. 552; TO $3,000 BY THE ACT OF MAR. 3,
1911, 36 STAT. 1091; AND TO $10,000 BY THE ACT OF JULY 25, 1958, 72
STAT. 415. 

/13/  THE PLAINTIFFS IN HAGUE BROUGHT SUIT IN A FEDERAL DISTRICT
COURT TO ENJOIN ENFORCEMENT OF CITY ORDINANCES PROHIBITING THE
DISTRIBUTION OF PRINTED MATTER AND THE HOLDING OF PUBLIC MEETINGS
WITHOUT A PERMIT.  THEY ALLEGED THAT THE ORDINANCES VIOLATED THE UNION
MEMBERS' RIGHT OF FREE SPEECH AND ASSEMBLY.  BOTH THE DISTRICT COURT
AND THE COURT OF APPEALS FOUND JURISDICTION UNDER SECS. 1331 AND
1343(3).  THIS COURT REVERSED AS TO JURISDICTION UNDER SEC. 1331, SINCE
THE PLAINTIFFS HAD FAILED TO ESTABLISH THE REQUISITE AMOUNT IN
CONTROVERSY.  ALTHOUGH NO OPINION COMMANDED A MAJORITY, JURISDICTION
UNDER SEC. 1343(3) WAS UPHELD.  MR. JUSTICE ROBERTS, WRITING THE LEAD
OPINION, EXPRESSED THE VIEW THAT THE REFERENCE IN SEC. 1343 TO "ANY
RIGHT, PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION" SHOULD BE
INTERPRETED TO COVER ONLY ALLEGED VIOLATIONS OF THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT.  IN MONROE V. PAPE, 365
U.S. 167, 170-171, WE REJECTED SUCH A NARROW READING OF SIMILAR
LANGUAGE IN SEC. 1983.     /14/  "(A) STUDY OF THE HISTORY OF THE BILL
AS REVEALED BY THE CONGRESSIONAL RECORD YIELDS NO REASON FOR ITS
ENACTMENT AT THAT TIME, AND MAY EVEN BE SAID TO RAISE A STRONG
PRESUMPTION THAT IT WAS 'SNEAK'  LEGISLATION.  IT WAS ORIGINALLY
INTRODUCED IN THE HOUSE OF REPRESENTATIVES IN THE FORM OF A BILL TO
AMEND THE REMOVAL STATUTE."  CHADBOURN & LEVIN, ORIGINAL JURISDICTION
OF FEDERAL QUESTIONS, 90 U.PA.L.REV.  639, 642-643 (1942). 
NONETHELESS, THE PASSAGE OF THE ACT, DESPITE THE LACK OF DEBATE, HAS
BEEN REGARDED AS THE "CULMINATION OF A MOVEMENT . . . TO STRENGTHEN THE
FEDERAL GOVERNMENT AGAINST THE STATES."  F. FRANKFURTER & J. LANDIS,
THE BUSINESS OF THE SUPREME COURT 65 N. 34 (1928).  SEE ALSO MAURY, THE
LATE CIVIL WAR, ITS EFFECT ON JURISDICTION, AND ON CIVIL REMEDIES
GENERALLY, 23 AM.L.REG.  129 (1875). 

/15/  AS NOTED, CONGRESS IN 1875 ALSO ENLARGED THE SCOPE OF SEC.
1983'S PREDECESSOR TO PROTECT RIGHTS SECURED BY FEDERAL LAW AS WELL AS
RIGHTS SECURED BY THE CONSTITUTION.  SEE N. 7, SUPRA.  MOREOVER, WHEN
CONGRESS INCREASED THE AMOUNT-IN-CONTROVERSY REQUIREMENT TO $3,000 IN
1911, 36 STAT. 1091, THERE WAS NO INDICATION THAT JURISDICTION UNDER
WHAT IS NOW SEC. 1343(3) WAS TO BE REDUCED.  IN FACT, THE LEGISLATION
EXPLICITLY PRESERVED THE EXEMPTION OF ACTION BROUGHT UNDER SEC.
1343(3)'S PREDECESSOR FROM THE AMOUNT-IN-CONTROVERSY REQUIREMENT. 

/16/  IN UNITED STATES V. PRICE, 383 U.S. 787, 797, WE INTERPRETED
THE PHRASE "RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED . . . BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES," CONTAINED IN 18 U.S.C. 242,
TO EMBRACE "ALL OF THE CONSTITUTION AND LAWS OF THE UNITED STATES." 
THE SIMILAR LANGUAGE IN SECS. 1983 AND 1343(3) WAS ORIGINALLY MODELED
ON SEC. 242'S PREDECESSOR, SEC. 2 OF THE CIVIL RIGHTS ACT OF 1866. 
SEE, N. 9, SUPRA.  IN PRICE, SUPRA, WE SAID THAT "(WE ARE NOT AT
LIBERTY TO SEEK INGENIOUS ANALYTICAL INSTRUMENTS" TO AVOID GIVING A
CONGRESSIONAL ENACTMENT THE SCOPE THAT ITS LANGUAGE AND ORIGINS
REQUIRE.  ID., AT 801. 

/17/  A SERIES OF PARTICULAR STATUTES GRANT JURISDICTION, WITHOUT
REGARD TO THE AMOUNT IN CONTROVERSY, IN VIRTUALLY ALL AREAS THAT
OTHERWISE WOULD FALL UNDER THE GENERAL FEDERAL-QUESTION STATUTE, SUCH
SPECIAL STATUTES COVER:  ADMIRALTY, MARITIME, AND PRIZE CASES, 28
U.S.C. 1333; BANKRUPTCY MATTERS AND PROCEEDINGS, 28 U.S.C. 1334; REVIEW
OF ORDERS OF THE INTERSTATE COMMERCE COMMISSION, 28 U.S.C. 1336; CASES
ARISING UNDER ANY ACT OF CONGRESS REGULATING COMMERCE, 28 U.S.C. 1337;
PATENT, COPYRIGHT, AND TRADEMARK CASES, 28 U.S.C. 1338; POSTAL MATTERS,
28 U.S.C. 1339; INTERNAL REVENUE AND CUSTOM DUTIES ACTIONS, 28 U.S.C.
1340; ELECTION DISPUTES, 28 U.S.C. 1344; CASES IN WHICH THE UNITED
STATES IS A PARTY, 28 U.S.C. 1345, 1346, 1347, 1348, 1349, 1358, AND
1361; CERTAIN TORT ACTIONS BY ALIENS, 28 U.S.C. 1350; ACTIONS ON BONDS
EXECUTED UNDER FEDERAL LAW, 28 U.S.C. 1352; CASES INVOLVING INDIAN
ALLOTMENTS, 28 U.S.C. 1353; AND INJURIES UNDER FEDERAL LAW, 28 U.S.C.
1357. 

/18/  "WHILE THIS BILL APPLIES THE $10,000 MINIMUM LIMITATION TO
CASES INVOLVING FEDERAL QUESTIONS, ITS EFFECT WILL BE GREATER ON
DIVERSITY CASES SINCE MANY OF THE SO-CALLED FEDERAL QUESTION CASES WILL
BE EXEMPT FROM ITS PROVISIONS."  S. REP. NO. 1830, 85TH CONG., 2D
SESS., 6 (1958).  THE SENATE REPORT WAS ECHOING THE FINDING OF THE
JUDICIAL CONFERENCE'S COMMITTEE ON JURISDICTION AND VENUE THAT RAISING
THE JURISDICTIONAL AMOUNT WOULD "HAVE SIGNIFICANT EFFECT MAINLY UPON
DIVERSITY CASES."  ID., AT 22. 

RECENT STUDIES HAVE DEMONSTRATED THAT THE AMOUNT-IN-CONTROVERSY
REQUIREMENT STILL HAS "RELATIVELY LITTLE IMPACT ON THE VOLUME OF
FEDERAL QUESTION LITIGATION."  AMERICAN LAW INSTITUTE, STUDY OF THE
DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 172, 489-492
(1969).  SEE ALSO, WARREN, ADDRESS TO THE AMERICAN LAW INSTITUTE, 1960,
25 F.R.D. 213; C. WRIGHT, LAW OF FEDERAL COURTS 107 (2D ED. 1970). 
INFORMATION FROM THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS
SHOWS THAT A MAJORITY OF PRIVATE FEDERAL-QUESTION CASES INVOLVE LESS
THAN $10,000.  AMERICAN LAW INSTITUTE, SUPRA, AT 491. 

ALTHOUGH LITIGATION INVOLVING FEDERAL CIVIL RIGHTS IS INCREASING,
SUCH ACTIONS CONSTITUTED ONLY 4.6% OF THE SUITS INSTITUTED IN DISTRICT
COURTS DURING THE 1970 FISCAL YEAR.  ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS, 1970 REPORT, II-31. 

/19/  AS NOTED ABOVE, WE HAVE NEVER ADOPTED THE PROPERTY RIGHTS
PERSONAL LIBERTIES TEST FOR SEC. 1343(3) JURISDICTION.  IN EISEN V.
EASTMAN, 421 F.2D 560, THE COURT OF APPEALS FOR THE SECOND CIRCUIT SAID
THAT APPLICATION OF THE TEST WOULD BAR MANY WELFARE CLAIMS.  ID., AT
566 N. 10.  WE HAVE, HOWEVER, CONTINUALLY FOUND SEC. 1343(3)
JURISDICTION IN SUCH CASES.  SEE, E.G., CALIFORNIA DEPARTMENT OF HUMAN
RESOURCES V. JAVA, 402 U.S. 121; ROSADO V. WYMAN, 397 U.S. 397; KING V.
SMITH, 392 U.S. 309; GOLDBERG V. KELLY, 397 U.S. 254; DANDRIDGE V.
WILLIAMS, 397 U.S. 471; DAMICO V. CALIFORNIA, 389 U.S. 416. 

SEE ALSO RINALDI V. YEAGER, 384 U.S. 305; SWARB V. LENNOX, ANTE, P.
191; LINDSEY V. NORMET, ANTE, P. 56.  THESE CASES, ARGUABLY, INVOLVED
ONLY DEPRIVATIONS OF PROPERTY, BUT WE FOUND SEC. 1343(3) JURISDICTION
NONETHELESS. 

/20/  DIFFICULTY IN APPLICATION HAS BEEN ONE SOURCE OF THE
COMMENTATORS' DISSATISFACTION WITH THE "PERSONAL LIBERTIES"
LIMITATION.  SEE GENERALLY NOTE, 24 VAND.L.REV.  990 (1971); LAUFER,
HAGUE V. C.I.O.:  MR. JUSTICE STONE'S TEST OF FEDERAL JURISDICTION-- A
REAPPRAISAL, 19 BUFF.L.REV.  547 (1970); NOTE, 1970 DUKE L.J. 819;
NOTE, 43 N.Y.U.L.REV.  1208 (1968); NOTE, 66 HARV.L.REV.  1285 (1953). 

THE FEDERAL COURTS HAVE PRODUCED INCONSISTENT RESULTS REGARDING SEC.
1343(3) JURISDICTION OF WELFARE CLAIMS.  COMPARE ROBERTS V. HARDER, 440
F.2D 1229, WITH ALVARADO V. SCHMIDT, 317 F.SUPP.  1027.  SEE ALSO N.
19, SUPRA.  YET, WITHOUT ALWAYS EXPLAINING WHY SUCH INTERESTS ARE
"PERSONAL" RATHER THAN "PROPRIETARY," COURTS HAVE CONSISTENTLY FOUND
CIVIL RIGHTS JURISDICTION OVER SUITS ALLEGING DISCRIMINATION IN THE
ISSUANCE OF BUSINESS LICENSES.  SEE, E.G., BARNES V. MERRITT, 376 F.2D
8; GLICKER V. MICHIGAN LIQUOR CONTROL COMM'N, 160 F.2D 96.  SIMILARLY,
CLAIMS INVOLVING DISCRIMINATION IN EMPLOYMENT, E.G., BIRNBAUM V.
TRUSSELL, 371 F.2D 672, OR TERMINATION OF LEASES IN PUBLIC HOUSING
PROJECTS, E.G., ESCALERA V. NEW YORK CITY HOUSING AUTHORITY, 425 F.2D
853, ARE OFTEN FOUND COGNIZABLE UNDER SEC. 1343(3).  HOW SUCH
"PERSONAL" INTERESTS ARE TO BE DISTINGUISHED FROM THE "PROPERTY"
INTEREST IN WAGES DEPOSITED IN A SAVINGS ACCOUNT, AS IN THIS CASE, IS
NOT READILY DISCERNIBLE.  COMPARE THIS CASE WITH SANTIAGO V. MCELROY,
319 F.SUPP.  284. 

/21/  THE DISTRICT COURT FOUND THAT ACCESS TO FUNDS HELD IN A
SAVINGS ACCOUNT WAS INDISTINGUISHABLE FROM SIMPLE OWNERSHIP OF MONEY. 
THUS GARNISHMENT OF THAT ACCOUNT DID NOT INFRINGE PERSONAL RIGHTS. 
MRS. LYNCH, HOWEVER, ALLEGED THAT BECAUSE OF THE GARNISHMENT SHE WAS
UNABLE TO PAY HER RENT ON TIME AND ENCOUNTERED DIFFICULTY MAINTAINING
HER FAMILY ON A MINIMALLY ADEQUATE DIET.  IF THESE ALLEGATIONS ARE
TRUE, MRS. LYNCH'S PERSONAL LIBERTY COULD BE PROFOUNDLY AFFECTED BY
GARNISHMENT OF HER SAVINGS. 

/22/  THE STATUTE PROVIDES: 

"WHEN THE EFFECTS OF THE DEFENDANT IN ANY CIVIL ACTION IN WHICH A
JUDGMENT OR DECREE FOR THE PAYMENT OF MONEY MAY BE RENDERED ARE
CONCEALED IN THE HANDS OF HIS AGENT OR TRUSTEE SO THAT THEY CANNOT BE
FOUND OR ATTACHED, OR WHEN A DEBT IS DUE FROM ANY PERSON TO SUCH
DEFENDANT, OR WHEN ANY DEBT, LEGACY OR DISTRIBUTIVE SHARE IS OR MAY
BECOME DUE TO SUCH DEFENDANT FROM THE ESTATE OF ANY DECEASED PERSON OR
INSOLVENT DEBTOR, THE PLAINTIFF MAY INSERT IN HIS WRIT A DIRECTION TO
THE OFFICER TO LEAVE A TRUE AND ATTESTED COPY THEREOF AND OF THE
ACCOMPANYING COMPLAINT, AT LEAST TWELVE DAYS IN THE CASE OF THE
SUPERIOR COURT OR THE COURT OF COMMON PLEAS, OR SIX DAYS IN THE CASE OF
THE CIRCUIT COURT, BEFORE THE SESSION OF THE COURT TO WHICH IT IS
RETURNABLE, WITH SUCH AGENT, TRUSTEE OR DEBTOR OF THE DEFENDANT, OR, AS
THE CASE MAY BE, WITH THE EXECUTOR, ADMINISTRATOR OR TRUSTEE OF SUCH
ESTATE, OR AT THE USUAL PLACE OF ABODE OF SUCH GARNISHEE; AND FROM THE
TIME OF LEAVING SUCH COPY ALL THE EFFECTS OF THE DEFENDANT IN THE HANDS
OF ANY SUCH GARNISHEE, AND ANY DEBT DUE FROM ANY SUCH GARNISHEE TO THE
DEFENDANT, AND ANY DEBT, LEGACY OR DISTRIBUTIVE SHARE, DUE OR THAT MAY
BECOME DUE TO HIM FROM SUCH EXECUTOR, ADMINISTRATOR OR TRUSTEE IN
INSOLVENCY, NOT EXEMPT FROM EXECUTION, SHALL BE SECURED IN THE HANDS OF
SUCH GARNISHEE TO PAY SUCH JUDGMENT AS THE PLAINTIFF MAY RECOVER." 

/23/  CF. ROUDEBUSH V. HARTKE, ANTE, P. 15. 

/24/  GARNISHMENT OCCURS AT THE BEGINNING OF THE SUIT UPON THE
DIRECTION OF THE PLAINTIFF'S LAWYER, ACTING AS A COMMISSIONER OF THE
SUPERIOR COURT.  CONN. GEN. STAT. REV. SECS. 51-85, 52-89.  "THE
PLAINTIFF OR HIS ATTORNEY MERELY INCLUDES IN HIS WRIT OF SUMMONS A
DIRECTION TO THE SHERIFF TO MAKE AN ATTACHMENT OR SERVE GARNISHMENT
PROCESS."  1 E.STEPHENSON, CONNECTICUT CIVIL PROCEDURE 151 (2D ED.
1970). 

/25/  THE FACT THAT THE PLAINTIFFS' ATTORNEYS ARE, FORMALLY,
OFFICERS OF THE COURT DOES NOT CONVERT THE CONNECTICUT GARNISHMENT
PROCESS INTO A STATE COURT PROCEEDING FOR SEC. 2283 PURPOSES, SINCE THE
ATTORNEYS HAVE COMPLETE DISCRETION TO ISSUE A WRIT.  SEE N. 24, SUPRA;
SHARKIEWICZ V. SMITH, 142 CONN. 410, 114 A.2D 691; SACHS V. NUSSENBAUM,
92 CONN. 682, 104 A. 393. 

/26/  THE COURTS HAVE NO AUTHORITY TO INQUIRE INTO THE PROBABLE
VALIDITY OF THE CREDITOR'S CLAIM, OF WHETHER SPECIAL CIRCUMSTANCES
WARRANT PROVISIONAL SECURITY FOR AN ALLEGED CREDITOR.  SACHS V.
NUSSENBAUM, 92 CONN.,AT 689, 104 A.,AT 395.  PRIOR TO THE TERMINATION
OF THE LITIGATION, A GARNISHMENT MAY BE REDUCED OR DISSOLVED ONLY UPON
A SHOWING THAT THE GARNISHMENT IS EXCESSIVE-- I.E., IN EXCESS OF THE
CREDITOR'S APPARENT CLAIM-- OR UPON SUBSTITUTION OF A BOND WITH
SURETY.  CONN. GEN. STAT. REV. SECS. 52-302 AND 52-304.  BLACK WATCH
FARMS V. DICK, 323 F.SUPP.  100, 101-102.  THIS INVOLVEMENT HAS BEEN
TERMED "MEAGER."  STEPHENSON, SUPRA, AT 154. 

/27/  SEE DOMBROWSKI V. PFISTER, 380 U.S. 479, 484 N. 2; CAMERON V.
JOHNSON, 390 U.S.,AT 613 N. 3; YOUNGER V. HARRIS, 401 U.S. 37, 54.  THE
CIRCUITS HAVE DIVIDED ON THE QUESTION.  CF., E.G., COOPER V.
HUTCHINSON, 184 F.2D 119, AND BAINES V. CITY OF DANVILLE, 337 F.2D
579. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

I AGREE WITH THE COURT THAT FEDERAL JURISDICTION UNDER 28 U.S.C.
1343 IS NOT LIMITED TO THE ADJUDICATION OF PERSONAL RIGHTS AND IF THE
DISPOSITION OF THIS CASE TURNED SOLELY ON THAT ISSUE I WOULD WITHOUT
RESERVATION JOIN IN THE MAJORITY OPINION.  BUT I CANNOT AGREE WITH THE
APPROACH THAT THE MAJORITY TAKES TO THE ANTI-INJUNCTION STATUTE, 28
U.S.C. 2283, OR ITS CONCLUSION THAT THE STATUTE DOES NOT BAR THIS
SUIT.  I DO NOT MEAN TO SUGGEST THAT APPELLANTS' DUE PROCESS ATTACK ON
THE CONNECTICUT GARNISHMENT STATUTE IS NOT SUBSTANTIAL.  IT OBVIOUSLY
IS.  SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337 (1969). 
NEVERTHELESS, IN MY VIEW, APPELLANTS SHOULD BE REQUIRED TO PRESS THEIR
CONSTITUTIONAL ATTACK IN THE STATE COURTS. 

IN CONNECTICUT, GARNISHMENT OR ATTACHMENT IS ONE METHOD OF BEGINNING
A LAWSUIT.  CON.  GEN. STAT. REV. SEC. 52-329; 1 E.STEPHENSON,
CONNECTICUT CIVIL PROCEDURE 156-157, 232-237 (2D ED. 1970).  OF COURSE,
THE REQUISITE PERSONAL SERVICE UPON A DEFENDANT IS NECESSARY TO OBTAIN
IN PERSONAM JURISDICTION, CONN. GEN. STAT. REV. SEC. 52-54, AS WELL AS
TO SECURE AN EFFECTIVE GARNISHMENT, STEPHENSON, SUPRA, AT 244, BUT AS A
MATTER OF RIGHT IN CERTAIN KINDS OF CIVIL ACTIONS A PLAINTIFF MAY
SIMULTANEOUSLY GARNISH A DEFENDANT'S BANK ACCOUNT AND SERVE A SUMMONS
UPON THE DEFENDANT, TOGETHER WITH A COMPLAINT STATING THE NATURE OF THE
UNDERLYING ACTION.  CONN. GEN. STAT. REV. SEC. 52-329.  A STATE COURT
OBTAINS JURISDICTION OF THE ACTION AND OF QUESTIONS CONCERNING THE
GARNISHMENT WHEN RETURN OF PROCESS IS MADE TO THAT COURT.  STEPHENSON,
SUPRA, AT 67.  GARNISHMENT IS "ANCILLARY TO THE MAIN ACTION FOR DAMAGES
AND CANNOT EXIST WITHOUT SUCH ACTION."  ID., AT 143.  ITS PURPOSE, AS
THE MAJORITY NOTES, IS TO SECURE PROPERTY THAT WILL THUS BE MADE
AVAILABLE FOR THE SATISFACTION OF A JUDGMENT.  IBID.  A WRIT OF
GARNISHMENT MAY BE ISSUED BY A JUDGE OF THE COURT OF JURISDICTION,
CONN. GEN. STAT. REV. SEC. 52-89 (SUPP. 1969), BUT BECAUSE GARNISHMENT
IN CONNECTICUT, UNLIKE MOST OTHER STATES, IS A MATTER OF RIGHT AND
REQUIRES NO PRIOR JUDICIAL DETERMINATION, THE WRIT MAY ALSO BE ISSUED
BY A COURT CLERK OR LICENSES ATTORNEY.  CONN. GEN. STAT. REV. SEC. 51
85.  IN EITHER CASE, THE MATTER IS ACCOMPLISHED SIMPLY BY COMPLETING A
FORM. 

APPELLANT LYNCH BROUGHT THIS FEDERAL ACTION TO ENJOIN THE
GARNISHMENT MORE THAN SEVEN MONTHS AFTER THE WRIT HAD BEEN EXECUTED,
THE SUMMONS AND COMPLAINT SERVED, PROCESS RETURNED, AND THE CASE
DOCKETED IN CONNECTICUT COURT.  AT THE EARLIEST MOMENT THAT A FEDERAL
INJUNCTION COULD HAVE ISSUED THE STATE COURT PROCEEDING WAS WELL UNDER
WAY.  DESPITE THIS, THE MAJORITY PURPORTS TO SEVER THE GARNISHMENT FROM
THE ACTION THAT UNDERLIES IT.  THE COURT REASONS THAT CONNECTICUT
GARNISHMENT IS NOT A PROCEEDING IN STATE COURT BECAUSE IT IS CARRIED
OUT BY PRIVATE PARTIES NOT ACTING PURSUANT TO A COURT ORDER.  ANTE, AT
554-555.     IF THE MAJORITY MEANS THAT GARNISHMENT IS A SEVERABLE
MATTER, INDEPENDENT OF THE MAIN SUIT AND FOR THAT REASON OUTSIDE OF
SEC. 2283, THEN I WOULD SUPPOSE IT PERMISSIBLE FOR A FEDERAL COURT TO
ENJOIN ANY GARNISHMENT OR ATTACHMENT, WHETHER OBTAINED AT THE INCEPTION
OF A LAWSUIT, WHILE IT IS IN PROGRESS, OR AFTER JUDGMENT AND FOR THE
PURPOSE OF EXECUTION.  THIS APPROACH TO THE ANTI-INJUNCTION STATUTE,
ARTICULATED IN SIMON V. SOUTHERN R. CO., 236 U.S. 115, 124-125 (1915),
WAS, I THOUGHT, LAID TO REST IN HILL V. MARTIN, 296 U.S. 393, 403
(1935), WHERE THE COURT CONSTRUED "PROCEEDINGS IN ANY COURT OF A STATE"
COMPREHENSIVELY AND AS EMBRACING 

"ALL STEPS TAKEN OR WHICH MAY BE TAKEN IN THE STATE COURT OR BY ITS
OFFICERS FROM THE INSTITUTION TO THE CLOSE OF THE FINAL PROCESS.  IT
APPLIES TO APPELLATE AS WELL AS TO ORIGINAL PROCEEDINGS; AND IS
INDEPENDENT OF THE DOCTRINE OF RES JUDICATA.  IT APPLIES ALIKE TO
ACTION BY THE COURT AND BY ITS MINISTERIAL OFFICERS; APPLIES NOT ONLY
TO AN EXECUTION ISSUED ON A JUDGMENT, BUT TO ANY PROCEEDING
SUPPLEMENTAL OR ANCILLARY TAKEN WITH A VIEW TO MAKING THE SUIT OR
JUDGMENT EFFECTIVE."  (FOOTNOTES OMITTED.)  THE COURT TODAY EMBARKS ON
QUITE A DIFFERENT COURSE AND REJECTS NOT ONLY HILL V. MARTIN BUT ALSO A
SUBSTANTIAL BODY OF FEDERAL COURT OF APPEALS LAW TO THE EFFECT THAT
SEC. 2283 BARS FEDERAL COURT INTERFERENCE WITH EXECUTIONS ON STATE
COURT JUDGMENTS.  E.G., MANUFACTURERS RECORD PUBLISHING CO. V. LAUER,
268 F.2D 187 (CA5), CERT. DENIED, 361 U.S. 913 (1959); FURNISH V. BOARD
OF MEDICAL EXAMINERS OF CALIFORNIA, 257 F.2D 520 (CA9), CERT. DENIED,
358 U.S. 882 (1958); NORWOOD V. PARENTEAU, 228 F.2D 148 (CA8 1955),
CERT. DENIED, 351 U.S. 955 (1956).  /1/ 

THE COURT ALSO SUGGESTS THAT SEC. 2283 IS INAPPLICABLE HERE BECAUSE
NO CONNECTICUT COURT AUTHORIZED THE GARNISHMENT.  ITS VIEW APPARENTLY
IS THAT A FEDERAL INJUNCTION WOULD THEREFORE NOT INTERFERE WITH STATE
COURT PROCESSES.  UNTIL NOW, HOWEVER, IT HAS BEEN REASONABLY CLEAR THAT
SEC. 2283 CANNOT BE AVOIDED BY THE SIMPLE EXPEDIENT OF ENJOINING
PARTIES INSTEAD OF JUDGES.  OKLAHOMA PACKING CO. V. OKLAHOMA GAS &
ELECTRIC CO., 309 U.S. 4, 9 (1940).  MOREOVER, THE COURT'S RATIONALE
PROVES TOO MUCH.  CONTRARY TO THE VIEWS EXPRESSED IN HILL V. MARTIN,
SUPRA, STATE COURT MINISTERIAL OFFICERS COULD BE ENJOINED AT ANY TIME
FOR ANY PURPOSE IN THE COURSE OF A LITIGATION AND WITHOUT REGARD TO
SEC. 2283.  IN ADDITION, PARTIES TO STATE COURT LITIGATION SO LONG AS
THE ACTS IN QUESTION ARE NOT CARRIED OUT PURSUANT TO COURT ORDER. 
DEPOSITIONS OF PARTIES AND WITNESSES, INTERROGATORIES TO PARTIES, AND
SUBPOENAS FOR WITNESSES ARE COMMONLY PURSUED WITHOUT RESORT TO A
JUDGE.  ARE THESE AND OTHER FUNCTIONS NOT PERFORMED UNDER COURT ORDER
NOW SUBJECT TO ATTACK IN FEDERAL COURT AT THE OPTION OF THE OFFENDED
STATE COURT LITIGANT? 

TODAY'S DECISION WILL, I FEAR, CREATE CONFUSION BY MAKING THE
APPLICABILITY OF SEC. 2283 TURN ON RULES THAT ARE DIFFICULT TO APPLY. 
THE POTENTIAL FOR CONFLICT BETWEEN STATE AND FEDERAL COURTS WILL
INCREASE AND THE PRICE FOR JUDICIAL ERRORS WILL BE PAID BY LITIGANTS
AND COURTS ALIKE.  THE COMMON SENSE OF THE MATTER, IT SEEMS TO ME, IS
THAT THE GARNISHMENT AT ISSUE HERE IS PART AND PARCEL OF A STATE COURT
PROCEEDING NOW UNDER WAY.  GARNISHMENT IN CONNECTICUT MAY BE
CHARACTERIZED AS SEPARATE FROM THE UNDERLYING ACTION, BUT IT IS
NONETHELESS A PROCEEDING AND DERIVES ITS LEGITIMACY FROM THE SUIT IT
ACCOMPANIES.  AT THE TIME THIS FEDERAL ACTION WAS BROUGHT, RETURN OF
PROCESS HAD LONG SINCE BEEN COMPLETED AND THE STATE COURT HAD ACQUIRED
JURISDICTION OF A STRAIGHTFORWARD CAUSE OF ACTION, INCLUDING QUESTIONS
OF THE LEGITIMACY AND CONSTITUTIONALITY OF THE GARNISHMENT. 

IT ALSO SEEMS TO ME THAT, QUITE APART FROM SEC. 2283, TODAY'S
HOLDING DEPARTS FROM SUCH CASES AS STEFANELLI V. MINARD, 342 U.S. 117
(1951), AND PEREZ V. LEDESMA, 401 U.S. 82 (1971), WHICH COUNSEL AGAINST
ATOMIZING STATE LITIGATION BY ENJOINING, FOR EXAMPLE, THE INTRODUCTION
OF ILLEGALLY OBTAINED EVIDENCE, AS WELL AS FROM THE MORE GENERAL
ADMONITIONS OF YOUNGER V. HARRIS, 401 U.S. 37 (1971); SAMUELS V.
MACKELL, 401 U.S. 66 (1971); BOYLE V. LANDRY, 401 U.S. 77 (1971); AND
PEREZ V. LEDESMA, SUPRA, AGAINST IMPROVIDENT EXERCISE OF A FEDERAL
COURT'S EQUITABLE POWERS TO FRUSTRATE OR INTERFERE WITH THE OPERATIONS
OF STATE COURTS BY ADJUDICATING FEDERAL QUESTIONS THAT ARE INVOLVED IN
STATE COURT LITIGATION AND WHICH CAN BE ADJUDICATED THERE.  AS THE
COURT SAID IN STEFANELLI, IF SUCH INTERVENTIONS WERE TO BE PERMITTED,
"(EVERY QUESTION OF PROCEDURAL DUE PROCESS OF LAW-- WITH ITS FAR-FLUNG
AND UNDEFINED RANGE-- WOULD INVITE A FLANKING MOVEMENT AGAINST THE
SYSTEM OF STATE COURTS BY RESORT TO THE FEDERAL FORUM, WITH REVIEW IF
NEED BE TO THIS COURT, TO DETERMINE THE ISSUE."  342 U.S.,AT 123.  SUCH
RESORT, IF PERMITTED, "WOULD PROVIDE READY OPPORTUNITIES, WHICH
CONSCIENTIOUS COUNSEL MIGHT BE BOUND TO EMPLOY, TO SUBVERT THE ORDERLY,
EFFECTIVE PROSECUTION OF LOCAL CRIME IN LOCAL COURTS."  ID., AT 123
124. 

APPELLEE BARRETT INVOKES YOUNGER AND COMPANION CASES AS A GROUND FOR
AFFIRMING THE JUDGMENT OF THE DISTRICT COURT.  OF COURSE, THOSE CASES
INVOLVED FEDERAL INJUNCTIONS AGAINST STATE CRIMINAL PROCEEDINGS, BUT
THE RELEVANT CONSIDERATIONS, IN MY VIEW, ARE EQUALLY APPLICABLE WHERE
STATE CIVIL LITIGATION IS IN PROGRESS, AS IS HERE THE CASE.  /2/ 

I WOULD AFFIRM THE JUDGMENT OF THE COURT BELOW. 

/1/  SOME CONFUSION PERSISTS WHETHER A FEDERAL COURT MAY,
CONSISTENTLY WITH SEC. 2283, ENJOIN THE OPERATION OF A STATE COURT
JUDGMENT PROCURED BY FRAUD.  SEE C. WRIGHT, LAW OF FEDERAL COURTS 179
181 (2D ED. 1970).  THAT QUESTION IS NOT PRESENTED HERE. 

/2/  I THUS WOULD AFFIRM WHETHER OR NOT 42 U.S.C. 1983 IS AN
EXCEPTION TO THE BAR OF SEC. 2283.  THAT QUESTION IS AT ISSUE IN
MITCHUM V. FOSTER, NO. 70-27, NOW SUB JUDICE. 

DAVID M. LESSER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WAS WILLIAM H. CLENDENEN, JR. 

RICHARD G. BELL ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEFS FOR APPELLEES HOUSEHOLD FINANCE CORP. ET AL. WERE CHARLES A.
PULASKI, JR., AND DAVID W. GOLDMAN.  ROBERT K. KILLIAN, ATTORNEY
GENERAL OF CONNECTICUT, AND RAYMOND J. CANNON AND ROBERT L. HIRTLE,
JR., ASSISTANT ATTORNEYS GENERAL, FILED A BRIEF FOR BARRETT, DEPUTY
SHERIFF. 
..END :















EISENSTADT V. BAIRD, 405 U.S. 438 


       EISENSTADT, SHERIFF V. BAIRD

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
FIRST

  CIRCUIT

        NO. 70-17.  ARGUED NOVEMBER 17-18, 1971-- DECIDED MARCH 22,

           1972 


APPELLEE ATTACKS HIS CONVICTION OF VIOLATING MASSACHUSETTS LAW FOR
GIVING A WOMAN A CONTRACEPTIVE FOAM AT THE CLOSE OF HIS LECTURE TO
STUDENTS ON CONTRACEPTION.  THAT LAW MAKES IT A FELONY FOR ANYONE TO
GIVE AWAY A DRUG, MEDICINE, INSTRUMENT, OR ARTICLE FOR THE PREVENTION
OF CONCEPTION EXCEPT IN THE CASE OF (1) A REGISTERED PHYSICIAN
ADMINISTERING OR PRESCRIBING IT FOR A MARRIED PERSON OR (2) AN ACTIVE
REGISTERED PHARMACIST FURNISHING IT TO A MARRIED PERSON PRESENTING A
REGISTERED PHYSICIAN'S PRESCRIPTION.  THE DISTRICT COURT DISMISSED
APPELLEE'S PETITION FOR A WRIT OF HABEAS CORPUS.  THE COURT OF APPEALS
VACATED THE DISMISSAL, HOLDING THAT THE STATUTE IS A PROHIBITION ON
CONTRACEPTION PER SE AND CONFLICTS "WITH FUNDAMENTAL HUMAN RIGHTS"
UNDER GRISWOLD V. CONNECTICUT, 381 U.S. 479.  APPELLANT, INTER ALIA,
ARGUES THAT APPELLEE LACKS STANDING TO ASSERT THE RIGHTS OF UNMARRIED
PERSONS DENIED ACCESS TO CONTRACEPTIVES BECAUSE HE WAS NEITHER AN
AUTHORIZED DISTRIBUTOR UNDER THE STATUTE NOR A SINGLE PERSON UNABLE TO
OBTAIN CONTRACEPTIVES.  HELD: 

1.  IF, AS THE COURT OF APPEALS HELD, THE STATUTE UNDER WHICH
APPELLEE WAS CONVICTED IS NOT A HEALTH MEASURE, APPELLEE MAY NOT BE
PREVENTED, BECAUSE HE WAS NOT AN AUTHORIZED DISTRIBUTOR, FROM ATTACKING
THE STATUTE IN ITS ALLEGED DISCRIMINATORY APPLICATION TO POTENTIAL
DISTRIBUTEES.  APPELLEE, FURTHERMORE, HAS STANDING TO ASSERT THE RIGHTS
OF UNMARRIED PERSONS DENIED ACCESS TO CONTRACEPTIVES BECAUSE THEIR
ABILITY TO OBTAIN THEM WILL BE MATERIALLY IMPAIRED BY ENFORCEMENT OF
THE STATUTE.  CF. GRISWOLD, SUPRA; BARROWS V. JACKSON, 346 U.S. 249. 
PP. 443-446. 

2.  BY PROVIDING DISSIMILAR TREATMENT FOR MARRIED AND UNMARRIED
PERSONS WHO ARE SIMILARLY SITUATED, THE STATUTE VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 446-455. 

(A) THE DETERRENCE OF FORMICATION, A 90-DAY MISDEMEANOR UNDER
MASSACHUSETTS LAW, CANNOT REASONABLY BE REGARDED AS THE PURPOSE OF THE
STATUTE, SINCE THE STATUTE IS RIDDLED WITH EXCEPTIONS MAKING
CONTRACEPTIVES FREELY AVAILABLE FOR USE IN PREMARITAL SEXUAL RELATIONS
AND ITS SCOPE AND PENALTY STRUCTURE ARE INCONSISTENT WITH THAT
PURPOSE.  PP. 447-450. 

(B) SIMILARLY, THE PROTECTION OF PUBLIC HEALTH THROUGH THE
REGULATION OF THE DISTRIBUTION OF POTENTIALLY HARMFUL ARTICLES CANNOT
REASONABLY BE REGARDED AS THE PURPOSE OF THE LAW, SINCE, IF HEALTH WERE
THE RATIONALE, THE STATUTE WOULD BE BOTH DISCRIMINATORY AND OVERBROAD,
AND FEDERAL AND STATE LAWS ALREADY REGULATE THE DISTRIBUTION OF DRUGS
UNSAFE FOR USE EXCEPT UNDER THE SUPERVISION OF A LICENSED PHYSICIAN. 
PP. 450-452. 

(C) NOR CAN THE STATUTE BE SUSTAINED SIMPLY AS A PROHIBITION ON
CONTRACEPTION PER SE, FOR WHATEVER THE RIGHTS OF THE INDIVIDUAL TO
ACCESS TO CONTRACEPTIVES MAY BE, THE RIGHTS MUST BE THE SAME FOR THE
UNMARRIED AND THE MARRIED ALIKE.  IF UNDER GRISWOLD, SUPRA, THE
DISTRIBUTION OF CONTRACEPTIVES TO MARRIED PERSONS CANNOT BE PROHIBITED,
A BAN ON DISTRIBUTION TO UNMARRIED PERSONS WOULD BE EQUALLY
IMPERMISSIBLE, SINCE THE CONSTITUTIONALLY PROTECTED RIGHT OF PRIVACY
INHERES IN THE INDIVIDUAL, NOT THE MARITAL COUPLE.  IF, ON THE OTHER
HAND, GRISWOLD IS NO BAR TO A PROHIBITION ON THE DISTRIBUTION OF
CONTRACEPTIVES, A PROHIBITION LIMITED TO UNMARRIED PERSONS WOULD BE
UNDERINCLUSIVE AND INVIDIOUSLY DISCRIMINATORY.  PP. 452-455. 

429 F.2D 1398, AFFIRMED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, AND MARSHALL, JJ., JOINED.  DOUGLAS, J., FILED A CONCURRING
OPINION, POST, P. 455.  WHITE, J., FILED AN OPINION CONCURRING IN THE
RESULT, IN WHICH BLACKMUN, J., JOINED, POST, P. 460.  BURGER, C.J.,
FILED A DISSENTING OPINION, POST, P. 465.  POWELL AND REHNQUIST, JJ.,
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLEE WILLIAM BAIRD WAS CONVICTED AT A BENCH TRIAL IN THE
MASSACHUSETTS SUPERIOR COURT UNDER MASSACHUSETTS GENERAL LAWS ANN., C.
272, SEC. 21, FIRST, FOR EXHIBITING CONTRACEPTIVE ARTICLES IN THE
COURSE OF DELIVERING A LECTURE ON CONTRACEPTION TO A GROUP OF STUDENTS
AT BOSTON UNIVERSITY AND, SECOND, FOR GIVING A YOUNG WOMAN A PACKAGE OF
EMKO VAGINAL FOAM AT THE CLOSE OF HIS ADDRESS.  /1/  THE MASSACHUSETTS
SUPREME JUDICIAL COURT UNANIMOUSLY SET ASIDE THE CONVICTION FOR
EXHIBITING CONTRACEPTIVES ON THE GROUND THAT IT VIOLATED BAIRD'S FIRST
AMENDMENT RIGHTS, BUT BY A FOUR-TO-THREE VOTE SUSTAINED THE CONVICTION
FOR GIVING AWAY THE FOAM.  COMMONWEALTH V. BAIRD, 355 MASS. 746, 247
N.E.2D 574 (1969).  BAIRD SUBSEQUENTLY FILED A PETITION FOR A FEDERAL
WRIT OF HABEAS CORPUS, WHICH THE DISTRICT COURT DISMISSED.  310
F.SUPP.  951 (1970).  ON APPEAL, HOWEVER, THE COURT OF APPEALS FOR THE
FIRST CIRCUIT VACATED THE DISMISSAL AND REMANDED THE ACTION WITH
DIRECTIONS TO GRANT THE WRIT DISCHARGING BAIRD.  429 F.2D 1398 (1970). 
THIS APPEAL BY THE SHERIFF OF SUFFOLK COUNTY, MASSACHUSETTS, FOLLOWED,
AND WE NOTED PROBABLE JURISDICTION.  401 U.S. 934 (1971).  WE AFFIRM. 

MASSACHUSETTS GENERAL LAWS ANN., C. 272, SEC. 21, UNDER WHICH BAIRD
WAS CONVICTED, PROVIDES A MAXIMUM FIVE-YEAR TERM OF IMPRISONMENT FOR
"WHOEVER . . . GIVES AWAY . . . ANY DRUG, MEDICINE, INSTRUMENT OR
ARTICLE WHATEVER FOR THE PREVENTION OF CONCEPTION," EXCEPT AS
AUTHORIZED IN SEC. 21A.  UNDER SEC. 21A, "(A) REGISTERED PHYSICIAN MAY
ADMINISTER TO OR PRESCRIBE FOR ANY MARRIED PERSON DRUGS OR ARTICLES
INTENDED FOR THE PREVENTION OF PREGNANCY OR CONCEPTION.  (AND A)
REGISTERED PHARMACIST ACTUALLY ENGAGED IN THE BUSINESS OF PHARMACY MAY
FURNISH SUCH DRUGS OR ARTICLES TO ANY MARRIED PERSON PRESENTING A
PRESCRIPTION FROM A REGISTERED PHYSICIAN."  /2/  AS INTERPRETED BY THE
STATE SUPREME JUDICIAL COURT, THESE PROVISIONS MAKE IT A FELONY FOR
ANYONE, OTHER THAN A REGISTERED PHYSICIAN OR PHARMACIST ACTING IN
ACCORDANCE WITH THE TERMS OF SEC. 21A, TO DISPENSE ANY ARTICLE WITH THE
INTENTION THAT IT BE USED FOR THE PREVENTION OF CONCEPTION.  ##HC442
THE STATUTORY SCHEME DISTINGUISHES AMONG THREE DISTINCT CLASSES OF
DISTRIBUTEES-- FIRST, MARRIED PERSONS MAY OBTAIN CONTRACEPTIVES TO
PREVENT PREGNANCY, BUT ONLY FROM DOCTORS OR DRUGGISTS ON PRESCRIPTION;
SECOND, SINGLE PERSONS MAY NOT OBTAIN CONTRACEPTIVES FROM ANYONE TO
PREVENT PREGNANCY; AND, THIRD, MARRIED OR SINGLE PERSONS MAY OBTAIN
CONTRACEPTIVES FROM ANYONE TO PREVENT, NOT PREGNANCY, BUT THE SPREAD OF
DISEASE.  THIS CONSTRUCTION OF STATE LAW IS, OF COURSE, BINDING ON US.
E.G., GROPPI V. WISCONSIN, 400 U.S. 505, 507 (1971). 

THE LEGISLATIVE PURPOSES THAT THE STATUTE IS MEANT TO SERVE ARE NOT
ALTOGETHER CLEAR.  IN COMMONWEALTH V. BAIRD, SUPRA, THE SUPREME
JUDICIAL COURT NOTED ONLY THE STATE'S INTEREST IN PROTECTING THE HEALTH
OF ITS CITIZENS:  "(THE PROHIBITION IN SEC. 21," THE COURT DECLARED,
"IS DIRECTLY RELATED TO" THE STATE'S GOAL OF "PREVENTING THE
DISTRIBUTION OF ARTICLES DESIGNED TO PREVENT CONCEPTION WHICH MAY HAVE
UNDESIRABLE, IF NOT DANGEROUS, PHYSICAL CONSEQUENCES."  355 MASS.,AT
753, 247 N.E.2D, AT 578.  IN A SUBSEQUENT DECISION, STURGIS V. ATTORNEY
GENERAL, 358 MASS. 37, -- , 260 N.E.2D 687, 690 (1970), THE COURT,
HOWEVER, FOUND "A SECOND AND MORE COMPELLING GROUND FOR UPHOLDING THE
STATUTE"-- NAMELY, TO PROTECT MORALS THROUGH "REGULATING THE PRIVATE
SEXUAL LIVES OF SINGLE PERSONS."  /3/  THE COURT OF APPEALS, FOR
REASONS THAT WILL APPEAR, DID NOT CONSIDER THE PROMOTION OF HEALTH OR
THE PROTECTION OF MORALS THROUGH THE DETERRENCE OF FORNICATION TO BE
THE LEGISLATIVE AIM.  INSTEAD, THE COURT CONCLUDED THAT THE STATUTORY
GOAL WAS TO LIMIT CONTRACEPTION IN AND OF ITSELF-- A PURPOSE THAT THE
COURT HELD CONFLICTED "WITH FUNDAMENTAL HUMAN RIGHTS" UNDER GRISWOLD V.
CONNECTICUT, 381 U.S. 479 (1965), WHERE THIS COURT STRUCK DOWN
CONNECTICUT'S PROHIBITION AGAINST THE USE OF CONTRACEPTIVES AS AN
UNCONSTITUTIONAL INFRINGEMENT OF THE RIGHT OF MARITAL PRIVACY.  429
F.2D, AT 1401-1402. 

WE AGREE THAT THE GOALS OF DETERRING PREMARITAL SEX AND REGULATING
THE DISTRIBUTION OF POTENTIALLY HARMFUL ARTICLES CANNOT REASONABLY BE
REGARDED AS LEGISLATIVE AIMS OF SECS. 21 AND 21A.  AND WE HOLD THAT THE
STATUTE, VIEWED AS A PROHIBITION ON CONTRACEPTION PER SE, VIOLATES THE
RIGHTS OF SINGLE PERSONS UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT. 

        I 

WE ADDRESS AT THE OUTSET APPELLANT'S CONTENTION THAT BAIRD DOES NOT
HAVE STANDING TO ASSERT THE RIGHTS OF UNMARRIED PERSONS DENIED ACCESS
TO CONTRACEPTIVES BECAUSE HE WAS NEITHER AN AUTHORIZED DISTRIBUTOR
UNDER SEC. 21A NOR A SINGLE PERSON UNABLE TO OBTAIN CONTRACEPTIVES. 
THERE CAN BE NO QUESTION, OF COURSE, THAT BAIRD HAS SUFFICIENT INTEREST
IN CHALLENGING THE STATUTE'S VALIDITY TO SATISFY THE "CASE OR
CONTROVERSY" REQUIREMENT OF ARTICLE III OF THE CONSTITUTION.  /4/
APPELLANT'S ARGUMENT, HOWEVER, IS THAT THIS CASE IS GOVERNED BY THE
COURT'S SELF-IMPOSED RULES OF RESTRAINT, FIRST, THAT "ONE TO WHOM
APPLICATION OF A STATUTE IS CONSTITUTIONAL WILL NOT BE HEARD TO ATTACK
THE STATUTE ON THE GROUND THAT IMPLIEDLY IT MIGHT ALSO BE TAKEN AS
APPLYING TO OTHER PERSONS OR OTHER SITUATIONS IN WHICH ITS APPLICATION
MIGHT BE UNCONSTITUTIONAL," UNITED STATES V. RAINES, 362 U.S. 17, 21
(1960), AND, SECOND, THE "CLOSELY RELATED COROLLARY THAT A LITIGANT MAY
ONLY ASSERT HIS OWN CONSTITUTIONAL RIGHTS OR IMMUNITIES," ID., AT 22. 
HERE, APPELLANT CONTENDS THAT BAIRD'S CONVICTION RESTS ON THE
RESTRICTION IN SEC. 21A ON PERMISSIBLE DISTRIBUTORS AND THAT THAT
RESTRICTION SERVES A VALID HEALTH INTEREST INDEPENDENT OF THE
LIMITATION ON AUTHORIZED DISTRIBUTEES.  APPELLANT URGES, THEREFORE,
THAT BAIRD'S ACTION IN GIVING AWAY THE FOAM FELL SQUARELY WITHIN THE
CONDUCT THAT THE LEGISLATURE MEANT AND HAD POWER TO PROHIBIT AND THAT
BAIRD SHOULD NOT BE ALLOWED TO ATTACK THE STATUTE IN ITS APPLICATION TO
POTENTIAL RECIPIENTS.  IN ANY EVENT, APPELLANT CONCLUDES, SINCE BAIRD
WAS NOT HIMSELF A SINGLE PERSON DENIED ACCESS TO CONTRACEPTIVES, HE
SHOULD NOT BE HEARD TO ASSERT THEIR RIGHTS.  WE CANNOT AGREE. 

THE COURT OF APPEALS HELD THAT THE STATUTE UNDER WHICH BAIRD WAS
CONVICTED IS NOT A HEALTH MEASURE.  IF THAT VIEW IS CORRECT, WE DO NOT
SEE HOW BAIRD MAY BE PREVENTED, BECAUSE HE WAS NEITHER A DOCTOR NOR A
DRUGGIST, FROM ATTACKING THE STATUTE IN ITS ALLEGED DISCRIMINATORY
APPLICATION TO POTENTIAL DISTRIBUTEES.  WE THINK, TOO, THAT OUR SELF
IMPOSED RULE AGAINST THE ASSERTION OF THIRD-PARTY RIGHTS MUST BE
RELAXED IN THIS CASE JUST AS IN GRISWOLD V. CONNECTICUT, SUPRA.  THERE
THE EXECUTIVE DIRECTOR OF THE PLANNED PARENTHOOD LEAGUE OF CONNECTICUT
AND A LICENSED PHYSICIAN WHO HAD PRESCRIBED CONTRACEPTIVES FOR MARRIED
PERSONS AND BEEN CONVICTED AS ACCESSORIES TO THE CRIME OF USING
CONTRACEPTIVES WERE HELD TO HAVE STANDING TO RAISE THE CONSTITUTIONAL
RIGHTS OF THE PATIENTS WITH WHOM THEY HAD A PROFESSIONAL RELATIONSHIP. 
APPELLANT HERE ARGUES THAT THE ABSENCE OF A PROFESSIONAL OR AIDING-AND
ABETTING RELATIONSHIP DISTINGUISHES THIS CASE FROM GRISWOLD.  YET, AS
THE COURT'S DISCUSSION OF PRIOR AUTHORITY IS GRISWOLD, 381 U.S.,AT 481,
INDICATES, THE DOCTOR-PATIENT AND ACCESSORY-PRINCIPAL RELATIONSHIPS ARE
NOT THE ONLY CIRCUMSTANCES IN WHICH ONE PERSON HAS BEEN FOUND TO HAVE
STANDING TO ASSERT THE RIGHTS OF ANOTHER.  INDEED, IN BARROWS V.
JACKSON, 346 U.S. 249 (1953), A SELLER OF LAND WAS ENTITLED TO DEFEND
AGAINST AN ACTION FOR DAMAGES FOR BREACH OF A RACIALLY RESTRICTIVE
COVENANT ON THE GROUND THAT ENFORCEMENT OF THE COVENANT VIOLATED THE
EQUAL PROTECTION RIGHTS OF PROSPECTIVE NON-CAUCASIAN PURCHASERS.  THE
RELATIONSHIP THERE BETWEEN THE DEFENDANT AND THOSE WHOSE RIGHTS HE
SOUGHT TO ASSERT WAS NOT SIMPLY THE FORTUITOUS CONNECTION BETWEEN A
VENDOR AND POTENTIAL VENDEES, BUT THE RELATIONSHIP BETWEEN ONE WHO
ACTED TO PROTECT THE RIGHTS OF A MINORITY AND THE MINORITY ITSELF. 
SEDLER, STANDING TO ASSERT CONSTITUTIONAL JUS TERTII IN THE SUPREME
COURT, 71 YALE L.J. 599, 631 (1962).  AND SO HERE THE RELATIONSHIP
BETWEEN BAIRD AND THOSE WHOSE RIGHTS HE SEEKS TO ASSERT IS NOT SIMPLY
THAT BETWEEN A DISTRIBUTOR AND POTENTIAL DISTRIBUTEES, BUT THAT BETWEEN
AN ADVOCATE OF THE RIGHTS OF PERSONS TO OBTAIN CONTRACEPTIVES AND THOSE
DESIROUS OF DOING SO.  THE VERY POINT OF BAIRD'S GIVING AWAY THE
VAGINAL FOAM WAS TO CHALLENGE THE MASSACHUSETTS STATUTE THAT LIMITED
ACCESS TO CONTRACEPTIVES. 

IN ANY EVENT, MORE IMPORTANT THAN THE NATURE OF THE RELATIONSHIP
BETWEEN THE LITIGANT AND THOSE WHOSE RIGHTS HE SEEKS TO ASSERT IS THE
IMPACT OF THE LITIGATION ON THE THIRD-PARTY INTERESTS.  /5/  IN
GRISWOLD, 381 U.S.,AT 481, THE COURT STATED:  "THE RIGHTS OF HUSBAND
AND WIFE, PRESSED HERE, ARE LIKELY TO BE DILUTED OR ADVERSELY AFFECTED
UNLESS THOSE RIGHTS ARE CONSIDERED IN A SUIT INVOLVING THOSE WHO HAVE
THIS KIND OF CONFIDENTIAL RELATION TO THEM."  A SIMILAR SITUATION
OBTAINS HERE.  ENFORCEMENT OF THE MASSACHUSETTS STATUTE WILL MATERIALLY
IMPAIR THE ABILITY OF SINGLE PERSONS TO OBTAIN CONTRACEPTIVES.  IN
FACT, THE CASE FOR ACCORDING STANDING TO ASSERT THIRD-PARTY RIGHTS IS
STRONGER IN THIS REGARD HERE THAN IN GRISWOLD BECAUSE UNMARRIED PERSONS
DENIED ACCESS TO CONTRACEPTIVES IN MASSACHUSETTS, UNLIKE THE USERS OF
CONTRACEPTIVES IN CONNECTICUT, ARE NOT THEMSELVES SUBJECT TO
PROSECUTION AND, TO THAT EXTENT, ARE DENIED A FORUM IN WHICH TO ASSERT
THEIR OWN RIGHTS.  CF. NAACP V. ALABAMA, 357 U.S. 449 (1958); BARROWS
V. JACKSON, SUPRA.  /6/ THE MASSACHUSETTS STATUTE, UNLIKE THE
CONNECTICUT LAW CONSIDERED IN GRISWOLD, PROHIBITS, NOT USE, BUT
DISTRIBUTION. 

FOR THE FOREGOING REASONS WE HOLD THAT BAIRD; WHO IS NOW IN A
POSITION, AND PLAINLY HAS AN ADEQUATE INCENTIVE, TO ASSERT THE RIGHTS
OF UNMARRIED PERSONS DENIED ACCESS TO CONTRACEPTIVES, HAS STANDING TO
DO SO.  WE TURN TO THE MERITS. 

        II 

THE BASIC PRINCIPLES GOVERNING APPLICATION OF THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT ARE FAMILIAR.  AS THE CHIEF JUSTICE
ONLY RECENTLY EXPLAINED IN REED V. REED, 404 U.S; 71, 75-76 (1971): 

     "IN APPLYING THAT CALUSE, THIS COURT HAS CONSISTENTLY

  RECOGNIZED THAT THE FOURTEENTH AMENDMENT DOES NOT DENY TO STATES

  THE POWER TO TREAT DIFFERENT CLASSES OF PERSONS IN DIFFERENT

  WAYS.  BARBIER V. CONNOLLY, 113 U.S. 27 (1885); LINSLEY V.

  NATURAL CARBONIC GAS CO., 220 U.S. 61 (1911); RAILWAY EXPRESS

  AGENCY V. NEW YORK, 336 U.S. 106 (1949); MCDONALD V. BOARD OF

  ELECTION COMMISSIONERS, 394 U.S. 802 (1969).  THE EQUAL

  PROTECTION CLAUSE OF THAT AMENDMENT DOES, HOWEVER, DENY TO STATES

THE POWER TO LEGISLATE THAT DIFFERENT TREATMENT BE ACCORDED TO

  PERSONS PLACED BY A STATUTE INTO DIFFERENT CLASSES ON THE BASIS

  OF CRITERIA WHOLLY UNRELATED TO THE OBJECTIVE OF THAT STATUTE.  A

  CLASSIFICATION 'MUST BE REASONABLE, NOT ARBITRARY, AND MUST REST

  UPON SOME GROUND OF DIFFERENCE HAVING A FAIR AND SUBSTANTIAL

  RELATION TO THE OBJECT OF THE LEGISLATION, SO THAT ALL PERSONS

  SIMILARLY CIRCUMSTANCED SHALL BE TREATED ALIKE.'  ROYSTER GUANO

  CO. V. VIRGINIA, 253 U.S. 412, 415 (1920)." 

THE QUESTION FOR OUR DETERMINATION IN THIS CASE IS WHETHER THERE IS
SOME GROUND OF DIFFERENCE THAT RATIONALLY EXPLAINS THE DIFFERENT
TREATMENT ACCORDED MARRIED AND UNMARRIED PERSONS UNDER MASSACHUSETTS
GENERAL LAWS ANN., C. 272, SECS. 21 AND 21A.  /7/  FOR THE REASONS THAT
FOLLOW, WE CONCLUDE THAT NO SUCH GROUND EXISTS. 

FIRST.  SECTION 21 STEMS FROM MASS. STAT. 1879, C. 159, SEC. 1,
WHICH PROHIBITED, WITHOUT EXCEPTION, DISTRIBUTION OF ARTICLES INTENDED
TO BE USED AS CONTRACEPTIVES.  IN COMMONWALTH V. ALLISON, 227 MASS. 57,
62, 116 N.E. 265, 266 (1917), THE MASSACHUSETTS SUPREME JUDICIAL COURT
EXPLAINED THAT THE LAW'S "PLAIN PURPOSE IS TO PROTECT PURITY, TO
PRESERVE CHASTITY, TO ENCOURAGE CONTINENCE AND SELF RESTRAINT, TO
DEFEND THE SANCTITY OF THE HOME, AND THUS TO ENGENDER IN THE STATE AND
NATION A VIRILE AND VIRTUOUS RACE OF MEN AND WOMEN."  ALTHOUGH THE
STATE CLEARLY ABANDONED THAT PURPOSE WITH THE ENACTMENT OF SEC. 21A, AT
LEAST INSOFAR AS THE ILLICIT SEXUAL ACTIVITIES OF MARRIED PERSONS ARE
CONCERNED, SEE N. 3, SUPRA, THE COURT REITERATED IN STURGIS V. ATTORNEY
GENERAL, SUPRA, THAT THE OBJECT OF THE LEGISLATION IS TO DISCOURAGE
PREMARITAL SEXUAL INTERCOURSE.  CONCEDING THAT THE STATE COULD,
CONSISTENTLY WITH THE EQUAL PROTECTION CLAUSE, REGARD THE PROBLEMS OF
EXTRAMARITAL AND PREMARITAL SEXUAL RELATIONS AS "(EVILS . . . OF
DIFFERENT DIMENSIONS AND PROPORTIONS, REQUIRING DIFFERENT REMEDIES,"
WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489 (1955), WE CANNOT
AGREE THAT THE DETERRENCE OF PREMARITAL SEX MAY REASONABLY BE REGARDED
AS THE PURPOSE OF THE MASSACHUSETTS LAW. 

IT WOULD BE PLAINLY UNREASONABLE TO ASSUME THAT MASSACHUSETTS HAS
PRESCRIBED PREGNANCY AND THE BIRTH OF AN UNWANTED CHILD AS PUNISHMENT
FOR FORNICATION, WHICH IS A MISDEMEANOR UNDER MASSACHUSETTS GENERAL
LAWS ANN., C. 272, SEC. 18.  ASIDE FROM THE SCHEME OF VALUES THAT
ASSUMPTION WOULD ATTRIBUTE TO THE STATE, IT IS ABUNDANTLY CLEAR THAT
THE EFFECT OF THE BAN ON DISTRIBUTION OF CONTRACEPTIVES TO UNMARRIED
PERSONS HAS AT BEST A MARGINAL RELATION TO THE PROFFERED OBJECTIVE. 
WHAT MR. JUSTICE GOLDBERG SAID IN GRISWOLD V. CONNECTICUT, SUPRA, AT
498 (CONCURRING OPINION), CONCERNING THE EFFECT OF CONNECTICUT'S
PROHIBITION ON THE USE OF CONTRACEPTIVES IN DISCOURAGING EXTRAMARITAL
SEXUAL RELATIONS, IS EQUALLY APPLICABLE HERE.  "THE RATIONALITY OF THIS
JUSTIFICATION IS DUBIOUS, PARTICULARLY IN LIGHT OF THE ADMITTED
WIDESPREAD AVAILABILITY TO ALL PERSONS IN THE STATE OF CONNECTICUT,
UNMARRIED AS WELL AS MARRIED, OF BIRTH-CONTROL DEVICES FOR THE
PREVENTION OF DISEASE, AS DISTINGUISHED FROM THE PREVENTION OF
CONCEPTION."  SEE ALSO ID., AT 505-507 (WHITE, J., CONCURRING IN
JUDGMENT).  LIKE CONNECTICUT'S LAWS, SECS 21 AND 21A DO NOT AT ALL
REGULATE THE DISTRIBUTION OF CONTRACEPTIVES WHEN THEY ARE TO BE USED TO
PREVENT, NOT PREGNANCY, BUT THE SPREAD OF DISEASE.  COMMONWEALTH V.
CORBETT, 307 MASS. 7, 29 N.E.2D 151 (1940), CITED WITH APPROVAL IN
COMMONWEALTH V. BAIRD, 355 MASS.,AT 754, 247 N.E.2D, AT 579.  NOR, IN
MAKING CONTRACEPTIVES AVAILABLE TO MARRIED PERSONS WITHOUT REGARD TO
THEIR INTENDED USE, DOES MASSACHUSETTS ATTEMPT TO DETER MARRIED PERSONS
FROM ENGAGING IN ILLICIT SEXUAL RELATIONS WITH UNMARRIED PERSONS.  EVEN
ON THE ASSUMPTION THAT THE FEAR OF PREGNANCY OPERATES AS A DETERRENT TO
FORNICATION, THE MASSACHUSETTS STATUTE IS THUS SO RIDDLED WITH
EXCEPTIONS THAT DETERRENCE OF PREMARITAL SEX CANNOT REASONABLY BE
REGARDED AS ITS AIM. 

MOREOVER, SECS. 21 AND 21A ON THEIR FACE HAVE A DUBIOUS RELATION TO
THE STATE'S CRIMINAL PROHIBITION ON FORNICATION.  AS THE COURT OF
APPEALS EXPLAINED, "FORNICATION IS A MISDEMEANOR (IN MASSACHUSETTS),
ENTAILING A THIRTY DOLLAR FINE, OR THREE MONTHS IN JAIL.  MASSACHUSETTS
GENERAL LAWS ANN. C. 272 SEC. 18.  VIOLATION OF THE PRESENT STATUTE IS
A FELONY, PUNISHABLE BY FIVE YEARS IN PRISON.  WE FIND IT HARD TO
BELIEVE THAT THE LEGISLATURE ADOPTED A STATUTE CARRYING A FIVE-YEAR
PENALTY FOR ITS POSSIBLE, OBVIOUSLY BY NO MEANS FULLY EFFECTIVE,
DETERRENCE OF THE COMMISSION OF A NINETY-DAY MISDEMEANOR."  429 F.2D,
AT 1401.  EVEN CONCEDING THE LEGISLATURE A FULL MEASURE OF DISCRETION
IN FASHIONING MEANS TO PREVENT FORNICATION, AND RECOGNIZING THAT THE
STATE MAY SEEK TO DETER PROHIBITED CONDUCT BY PUNISHING MORE SEVERELY
THOSE WHO FACILITATE THAN THOSE WHO ACTUALLY ENGAGE IN ITS COMMISSION,
WE, LIKE THE COURT OF APPEALS, CANNOT BELIEVE THAT IN THIS INSTANCE
MASSACHUSETTS HAS CHOSEN TO EXPOSE THE AIDER AND ABETTER WHO SIMPLY
GIVES AWAY A CONTRACEPTIVE TO 20 TIMES THE 90-DAY SENTENCE OF THE
OFFENDER HIMSELF.  THE VERY TERMS OF THE STATE'S CRIMINAL STATUTES,
COUPLED WITH THE DE MINIMIS EFFECT OF SECS. 21 AND 21A IN DETERRING
FORNICATION, THUS COMPEL THE CONCLUSION THAT SUCH DETERRENCE CANNOT
REASONABLY BE TAKEN AS THE PURPOSE OF THE BAN ON DISTRIBUTION OF
CONTRACEPTIVES TO UNMARRIED PERSONS. 

SECOND.  SECTION 21A WAS ADDED TO THE MASSACHUSETTS GENERAL LAWS BY
STAT. 1966, C. 265, SEC. 1.  THE SUPREME JUDICIAL COURT IN COMMONWEALTH
V. BAIRD, SUPRA, HELD THAT THE PURPOSE OF THE AMENDMENT WAS TO SERVE
THE HEALTH NEEDS OF THE COMMUNITY BY REGULATING THE DISTRIBUTION OF
POTENTIALLY HARMFUL ARTICLES.  IT IS PLAIN THAT MASSACHUSETTS HAD NO
SUCH PURPOSE IN MIND BEFORE THE ENACTMENT OF SEC. 21A.  AS THE COURT OF
APPEALS REMARKED, "CONSISTENT WITH THE FACT THAT THE STATUTE WAS
CONTAINED IN A CHAPTER DEALING WITH 'CRIMES AGAINST CHASTITY, MORALITY,
DECENCY AND GOOD ORDER,' IT WAS CAST ONLY IN TERMS OF MORALS.  A
PHYSICIAN WAS FORBIDDEN TO PRESCRIBE CONTRACEPTIVES EVEN WHEN NEEDED
FOR THE PROTECTION OF HEALTH.  COMMONWEALTH V. GARDNER, 1938, 300 MASS.
372, 15 N.E.2D 222."  429 F.2D, AT 1401.  NOR DID THE COURT OF APPEALS
"BELIEVE THAT THE LEGISLATURE (IN ENACTING SEC. 21A) SUDDENLY REVERSED
ITS FIELD AND DEVELOPED AN INTEREST IN HEALTH.  RATHER, IT MERELY MADE
WHAT IT THOUGHT TO BE THE PRECISE ACCOMMODATION NECESSARY TO ESCAPE THE
GRISWOLD RULING."  IBID. 

AGAIN, WE MUST AGREE WITH THE COURT OF APPEALS.  IF HEALTH WERE THE
RATIONALE OF SEC. 21A, THE STATUTE WOULD BE BOTH DISCRIMINATORY AND
OVERBROAD.  DISSENTING IN COMMONWEALTH V. BAIRD, 355 MASS.,AT 758, 247
N.E.2D, AT 581, JUSTICES WHITTEMORE AND CUTTER STATED THAT THEY SAW "IN
SEC. 21 AND SEC. 21A, READ TOGETHER, NO PUBLIC HEALTH PURPOSE.  IF
THERE IS NEED TO HAVE A PHYSICIAN PRESCRIBE (AND A PHARMACIST DISPENSE)
CONTRACEPTIVES, THAT NEED IS AS GREAT FOR UNMARRIED PERSONS AS FOR
MARRIED PERSONS."  THE COURT OF APPEALS ADDED:  "IF THE PROHIBITION (ON
DISTRIBUTION TO UNMARRIED PERSONS) . . . IS TO BE TAKEN TO MEAN THAT
THE SAME PHYSICIAN WHO CAN PRESCRIBE FOR MARRIED PATIENTS DOES NOT HAVE
SUFFICIENT SKILL TO PROTECT THE HEALTH OF PATIENTS WHO LACK A MARRIAGE
CERTIFICATE, OR WHO MAY BE CURRENTLY DIVORCED, IT IS ILLOGICAL TO THE
POINT OF IRRATIONALITY."  429 F.2D, AT 1401.  /8/  FURTHERMORE, WE MUST
JOIN THE COURT OF APPEALS IN NOTING THAT NOT ALL CONTRACEPTIVES ARE
POTENTIALLY DANGEROUS.  /9/  AS A RESULT, IF THE MASSACHUSETTS STATUTE
WERE A HEALTH MEASURE, IT WOULD NOT ONLY INVIDIOUSLY DISCRIMINATE
AGAINST THE UNMARRIED, BUT ALSO BE OVERBROAD WITH RESPECT TO THE
MARRIED, A FACT THAT THE SUPREME JUDICIAL COURT ITSELF SEEMS TO HAVE
CONCEDED IN STURGIS V. ATTORNEY GENERAL, 358 MASS., AT -- , 260 N.E.2D,
AT 690, WHERE IT NOTED THAT "IT MAY WELL BE THAT CERTAIN CONTRACEPTIVE
MEDICATION AND DEVICES CONSTITUTE NO HAZARD TO HEALTH, IN WHICH EVENT
IT COULD BE ARGUED THAT THE STATUTE SWEPT TOO BROADLY IN ITS
PROHIBITION."  "IN THIS POSTURE," AS THE COURT OF APPEALS CONCLUDED,
"IT IS IMPOSSIBLE TO THINK OF THE STATUTE AS INTENDED AS A HEALTH
MEASURE TO THE UNMARRIED, AND IT IS ALMOST AS DIFFICULT TO THINK OF IT
AS SO INTENDED EVEN AS TO THE MARRIED."  429 F.2D, AT 1401. 

BUT IF FURTHER PROOF THAT THE MASSACHUSETTS STATUTE IS NOT A HEALTH
MEASURE IS NECESSARY, THE ARGUMENT OF JUSTICE SPIEGEL, WHO ALSO
DISSENTED IN COMMONWEALTH V. BAIRD, 355 MASS.,AT 759, 247 N.E.2D, AT
582, IS CONCLUSIVE:  "IT IS AT BEST A STRAINED CONCEPTION TO SAY THAT
THE LEGISLATURE INTTENDED TO PREVENT THE DISTRIBUTION OF ARTICLES
'WHICH MAY HAVE UNDESIRABLE, IF NOT DANGEROUS, PHYSICAL CONSEQUENCES.' 
IF THAT WAS THE LEGISLATURE'S GOAL, SEC. 21 IS NOT REQUIRED" IN VIEW OF
THE FEDERAL AND STATE LAWS ALREADY REGULATING THE DISTRIBUTION OF
HARMFUL DRUGS.  SEE FEDERAL FOOD, DRUG, AND COSMETIC ACT, SEC. 503, 52
STAT. 1051, AS AMENDED, 21 U.S.C. 353; MASS. GEN. LAWS ANN., C. 94 SEC.
187A, AS AMENDED.  WE CONCLUDE, ACCORDINGLY, THAT, DESPITE THE
STATUTE'S SUPERFICIAL EARMARKS AS A HEALTH MEASURE, HEALTH, ON THE FACE
OF THE STATUTE, MAY NO MORE REASONABLY BE REGARDED AS ITS PURPOSE THAN
THE DETERRENCE OF PREMARITAL SEXUAL RELATIONS. 

THIRD.  IF THE MASSACHUSETTS STATUTE CANNOT BE UPHELD AS A DETERRENT
TO FORNICATION OR AS A HEALTH MEASURE, MAY IT, NEVERTHELESS, BE
SUSTAINED SIMPLY AS A PROHIBITION ON CONTRACEPTION?  THE COURT OF
APPEALS ANALYSIS "LED INEVITABLY TO THE CONCLUSION THAT, SO FAR AS
MORALS ARE CONCERNED, IT IS CONTRACEPTIVES PER SE THAT ARE CONSIDERED
IMMORAL-- TO THE EXTENT THAT GRISWOLD WILL PERMIT SUCH A DECLARATION." 
429 F.2D, AT 1401-1402.  THE COURT OF APPEALS WENT ON TO HOLD, ID., AT
1402: 

     "TO SAY THAT CONTRACEPTIVES ARE IMMORAL AS SUCH, AND ARE TO BE

  FORBIDDEN TO UNMARRIED PERSONS WHO WILL NEVERTHELESS PERSIST IN

  HAVING INTERCOURSE, MEANS THAT SUCH PERSONS MUST RISK FOR

  THEMSELVES AN UNWANTED PREGNANCY, FOR THE CHILD, ILLEGITIMACY,

 AND FOR SOCIETY, A POSSIBLE OBLIGATION OF SUPPORT.  SUCH A VIEW

  OF MORALITY IS NOT ONLY THE VERY MIRROR IMAGE OF SENSIBLE

  LEGISLATION; WE CONSIDER THAT IT CONFLICTS WITH FUNDAMENTAL HUMAN

  RIGHTS.  IN THE ABSENCE OF DEMONSTRATED HARM, WE HOLD IT IS

  BEYOND THE COMPETENCY OF THE STATE." 

WE NEED NOT AND DO NOT, HOWEVER, DECIDE THAT IMPORTANT QUESTION IN THIS
CASE BECAUSE, WHATEVER THE RIGHTS OF THE INDIVIDUAL TO ACCESS TO
CONTRACEPTIVES MAY BE, THE RIGHTS MUST BE THE SAME FOR THE UNMARRIED
AND THE MARRIED ALIKE. 

IF UNDER GRISWOLD THE DISTRIBUTION OF CONTRACEPTIVES TO MARRIED
PERSONS CANNOT BE PROHIBITED, A BAN ON DISTRIBUTION TO UNMARRIED
PERSONS WOULD BE EQUALLY IMPERMISSIBLE.  IT IS TRUE THAT IN GRISWOLD
THE RIGHT OF PRIVACY IN QUESTION INHERED IN THE MARITAL RELATIONSHIP. 
YET THE MARITAL COUPLE IS NOT AN INDEPENDENT ENTITY WITH A MIND AND
HEART OF ITS OWN, BUT AN ASSOCIATION OF TWO INDIVIDUALS EACH WITH A
SEPARATE INTELLECTUAL AND EMOTIONAL MAKEUP.  IF THE RIGHT OF PRIVACY
MEANS ANYTHING, IT IS THE RIGHT OF THE INDIVIDUAL, MARRIED OR SINGLE,
TO BE FREE FROM UNWARRANTED GOVERNMENTAL INTRUSION INTO MATTERS SO
FUNDAMENTALLY AFFECTING A PERSON AS THE DECISION WHETHER TO BEAR OR
BEGET A CHILD.  SEE STANLEY V. GEORGIA, 394 U.S. 557 (1969).  /10/  SEE
ALSO SKINNER V. OKLAHOMA, 316 U.S. 535 (1942); JACOBSON V.
MASSACHUSETTS, 197 U.S. 11, 29 (1905). 

ON THE OTHER HAND, IF GRISWOLD IS NO BAR TO A PROHIBITION ON THE
DISTRIBUTION OF CONTRACEPTIVES, THE STATE COULD NOT, CONSISTENTLY WITH
THE EQUAL PROTECTION CLAUSE, OUTLAW DISTRIBUTION TO UNMARRIED BUT NOT
TO MARRIED PERSONS.  IN EACH CASE THE EVIL, AS PERCEIVED BY THE STATE,
WOULD BE IDENTICAL, AND THE UNDERINCLUSION WOULD BE INVIDIOUS.  MR.
JUSTICE JACKSON, CONCURRING IN RAILWAY EXPRESS AGENCY V. NEW YORK, 336
U.S. 106, 112-113 (1949), MADE THE POINT: 

"THE FRAMERS OF THE CONSTITUTION KNEW, AND WE SHOULD NOT FORGET
TODAY, THAT THERE IS NO MORE EFFECTIVE PRACTICAL GUARANTY AGAINST
ARBITRARY AND UNREASONABLE GOVERNMENT THAN TO REQUIRE THAT THE
PRINCIPLES OF LAW WHICH OFFICIALS WOULD IMPOSE UPON A MINORITY MUST BE
IMPOSED GENERALLY.  CONVERSELY, NOTHING OPENS THE DOOR TO ARBITRARY
ACTION SO EFFECTIVELY AS TO ALLOW THOSE OFFICIALS TO PICK AND CHOOSE
ONLY A FEW TO WHOM THEY WILL APPLY LEGISLATION AND THUS TO ESCAPE THE
POLITICAL RETRIBUTION THAT MIGHT BE VISITED UPON THEM IF LARGER NUMBERS
WERE AFFECTED.  COURTS CAN TAKE NO BETTER MEASURE TO ASSURE THAT LAWS
WILL BE JUST THAN TO REQUIRE THAT LAWS BE EQUAL IN OPERATION." 
ALTHOUGH MR. JUSTICE JACKSON'S COMMENTS HAD REFERENCE TO ADMINISTRATIVE
REGULATIONS, THE PRINCIPLE HE AFFIRMED HAS EQUAL APPLICATION TO THE
LEGISLATION HERE.  WE HOLD THAT BY PROVIDING DISSIMILAR TREATMENT FOR
MARRIED AND UNMARRIED PERSONS WHO ARE SIMILARLY SITUATED, MASSACHUSETTS
GENERAL LAWS ANN., C. 272, SECS. 21 AND 21A, VIOLATE THE EQUAL
PROTECTION CLAUSE.  THE JUDGMENT OF THE COURT OF APPEALS IS

       AFFIRMED. 

/1/  THE COURT OF APPEALS BELOW DESCRIBED THE RECIPIENT OF THE FOAM
AS "AN UNMARRIED ADULT WOMAN."  429 F.2D 1398, 1399 (1970).  HOWEVER,
THERE IS NO EVIDENCE IN THE RECORD ABOUT HER MARITAL STATUS. 

/2/  SECTION 21 PROVIDES IN FULL: 

"EXCEPT AS PROVIDED IN SECTION TWENTY-ONE A, WHOEVER SELLS, LENDS,
GIVES AWAY, EXHIBITS OR OFFERS TO SELL, LEND OR GIVE AWAY AN INSTRUMENT
OR OTHER ARTICLE INTENDED TO BE USED FOR SELF-ABUSE, OR ANY DRUG,
MEDICINE, INSTRUMENT OR ARTICLE WHATEVER FOR THE PREVENTION OF
CONCEPTION OR FOR CAUSING UNLAWFUL ABORTION, OR ADVERTISES THE SAME, OR
WRITES, PRINTS, OR CAUSES TO BE WRITTEN OR PRINTED A CARD, CIRCULAR,
BOOK, PAMPHLET, ADVERTISEMENT OR NOTICE OF ANY KIND STATING WHEN,
WHERE, HOW, OF WHOM OR BY WHAT MEANS SUCH ARTICLE CAN BE PURCHASED OR
OBTAINED, OR MANUFACTURES OR MAKES ANY SUCH ARTICLE SHALL BE PUNISHED
BY IMPRISONMENT IN THE STATE PRISON FOR NOT MORE THAN FIVE YEARS OR IN
JAIL OR THE HOUSE OF CORRECTION FOR NOT MORE THAN TWO AND ONE HALF
YEARS OR BY A FINE OF NOT LESS THAN ONE HUNDRED NOR MORE THAN ONE
THOUSAND DOLLARS." 


"A REGISTERED PHYSICIAN MAY ADMINISTER TO OR PRESCRIBE FOR ANY
MARRIED PERSON DRUGS OR ARTICLES INTENDED FOR THE PREVENTION OF
PREGNANCY OR CONCEPTION.  A REGISTERED PHARMACIST ACTUALLY ENGAGED IN
THE BUSINESS OF PHARMACY MAY FURNISH SUCH DRUGS OR ARTICLES TO ANY
MARRIED PERSON PRESENTING A PRESCRIPTION FROM A REGISTERED PHYSICIAN. 

"A PUBLIC HEALTH AGENCY, A REGISTERED NURSE, OR A MATERNITY HEALTH
CLINIC OPERATED BY OR IN AN ACCREDITED HOSPITAL MAY FURNISH INFORMATION
TO ANY MARRIED PERSON AS TO WHERE PROFESSIONAL ADVICE REGARDING SUCH
DRUGS OR ARTICLES MAY BE LAWFULLY OBTAINED. 

"THIS SECTION SHALL NOT BE CONSTRUED AS AFFECTING THE PROVISIONS OF
OF DRUGS OR ARTICLES INTENDED FOR THE PREVENTION OF PREGNANCY OR
CONCEPTION; NOR SHALL THIS SECTION BE CONSTRUED SO AS TO PERMIT THE
SALE OR DISPENSING OF SUCH DRUGS OR ARTICLES BY MEANS OF ANY VENDING
MACHINE OR SIMILAR DEVICE." 

/3/  APPELLANT SUGGESTS THAT THE PURPOSE OF THE MASSACHUSETTS
STATUTE IS TO PROMOTE MARITAL FIDELITY AS WELL AS TO DISCOURAGE
PREMARITAL SEX.  UNDER SEC. 21A, HOWEVER, CONTRACEPTIVES MAY BE MADE
AVAILABLE TO MARRIED PERSONS WITHOUT REGARD TO WHETHER THEY ARE LIVING
WITH THEIR SPOUSES OR THE USES TO WHICH THE CONTRACEPTIVES ARE TO BE
PUT.  PLAINLY THE LEGISLATION HAS NO DETERRENT EFFECT ON EXTRAMARITAL
SEXUAL RELATIONS. 

/4/  THIS VACTOR DECISIVELY DISTINGUISHES TILESTON V. ULLMAN, 318
U.S. 44 (1943), WHERE THE COURT HELD THAT A PHYSICIAN LACKED STANDING
TO BRING AN ACTION FOR DECLARATORY RELIEF TO CHALLENGE, ON BEHALF OF
HIS PATIENTS, THE CONNECTICUT LAW PROHIBITING THE USE OF
CONTRACEPTIVES.  THE PATIENTS WERE FULLY ABLE TO BRING THEIR OWN
ACTION.  UNDERLYING THE DECISION WAS THE CONCERN THAT "THE STANDARDS OF
'CASE OR CONTROVERSY' IN ARTICLE III OF THE CONSTITUTION (NOT) BECOME
BLURRED," GRISWOLD V. CONNECTICUT, 381 U.S. 479, 481 (1965)-- A PROBLEM
THAT IS NOT AT ALL INVOLVED IN THIS CASE. 

/5/  INDEED, IN FIRST AMENDMENT CASES WE HAVE RELAXED OUR RULES OF
STANDING WITHOUT REGARD TO THE RELATIONSHIP BETWEEN THE LITIGANT AND
THOSE WHOSE RIGHTS HE SEEKS TO ASSERT PRECISELY BECAUSE APPLICATION OF
THOSE RULES WOULD HAVE AN INTOLERABLE, INHIBITORY EFFECT ON FREEDOM OF
SPEECH.  E.G., THORNHILL V. ALABAMA, 310 U.S. 88, 97-98 (1940).  SEE
UNITED STATES V. RAINES, 362 U.S. 17, 22 (1960).     /6/  SEE ALSO
PRINCE V. MASSACHUSETTS, 321 U.S. 158 (1944), WHERE A CUSTODIAN, IN
VIOLATION OF STATE LAW, FURNISHED A CHILD WITH MAGAZINES TO DISTRIBUTE
ON THE STREETS.  THE COURT THERE IMPLICITLY HELD THAT THE CUSTODIAN HAD
STANDING TO ASSERT ALLEGED FREEDOM OF RELIGION AND EQUAL PROTECTION
RIGHTS OF THE CHILD THAT WERE THREATENED IN THE VERY LITIGATION BEFORE
THE COURT AND THAT THE CHILD HAD NO EFFECTIVE WAY OF ASSERTING
HERSELF. 

/7/  OF COURSE, IF WE WERE TO CONCLUDE THAT THE MASSACHUSETTS
STATUTE IMPINGES UPON FUNDAMENTAL FREEDOMS UNDER GRISWOLD, THE
STATUTORY CLASSIFICATION WOULD HAVE TO BE NOT MERELY RATIONALLY RELATED
TO A VALID PUBLIC PURPOSE BUT NECESSARY TO THE ACHIEVEMENT OF A
COMPELLING STATE INTEREST.  E.G., SHAPIRO V. THOMPSON, 394 U.S. 618
(1969); LOVING V. VIRGINIA, 388 U.S. 1 (1967).  BUT JUST AS IN REED V.
REED, 404 U.S. 71 (1971), WE DO NOT HAVE TO ADDRESS THE STATUTE'S
VALIDITY UNDER THAT TEST BECAUSE THE LAW FAILS TO SATISFY EVEN THE MORE
LENIENT EQUAL PROTECTION STANDARD. 

/8/  APPELLANT INSISTS THAT THE UNMARRIED HAVE NO RIGHT TO ENGAGE IN
SEXUAL INTERCOURSE AND HENCE NO HEALTH INTEREST IN CONTRACEPTION THAT
NEEDS TO BE SERVED.  THE SHORT ANSWER TO THIS CONTENTION IS THAT THE
SAME DEVICES THE DISTRIBUTION OF WHICH THE STATE PURPORTS TO REGULATE
WHEN THEIR ASSERTED PURPOSE IS TO FORESTALL PREGNANCY ARE AVAILABLE
WITHOUT ANY CONTROLS WHATSOEVER SO LONG AS THEIR ASSERTED PURPOSE IS TO
PREVENT THE SPREAD OF DISEASE.  IT IS INCONCEIVABLE THAT THE NEED FOR
HEALTH CONTROLS VARIES WITH THE PURPOSE FOR WHICH THE CONTRACEPTIVE IS
TO BE USED WHEN THE PHYSICAL ACT IN ALL CASES IS ONE AND THE SAME. 

/9/  THE COURT OF APPEALS STATED, 429 F.2D, AT 1401: 

"(WE MUST TAKE NOTICE THAT NOT ALL CONTRACEPTIVE DEVICES RISK
'UNDESIRABLE . . . (OR) DANGEROUS PHYSICAL CONSEQUENCES.'  IT IS 200
YEARS SINCE CASANOVA RECORDED THE UBIQUITOUS ARTICLE WHICH, PERHAPS
BECAUSE OF THE BIRTHPLACE OF ITS INVENTOR, HE TERMED A 'REDINGOTE
ANGLAIS.'  THE REPUTED NATIONALITY OF THE CONDOM HAS NOW CHANGED, BUT
WE HAVE NEVER HEARD CRITICISM OF IT ON THE SIDE OF HEALTH.  WE CANNOT
THINK THAT THE LEGISLATURE WAS UNAWARE OF IT, OR COULD HAVE THOUGHT
THAT IT NEEDED A MEDICAL PRESCRIPTION.  WE BELIEVE THE SAME COULD BE
SAID OF CERTAIN OTHER PRODUCTS." 

/10/  IN STANLEY, 394 U.S.,AT 564, THE COURT STATED: 

"(ALSO FUNDAMENTAL IS THE RIGHT TO BE FREE, EXCEPT IN VERY LIMITED
CIRCUMSTANCES, FROM UNWANTED GOVERNMENTAL INTRUSIONS INTO ONE'S
PRIVACY. 

"'THE MAKERS OF OUR CONSTITUTION UNDERTOOK TO SECURE CONDITIONS
FAVORABLE TO THE PURSUIT OF HAPPINESS.  THEY RECOGNIZED THE
SIGNIFICANCE OF MAN'S SPIRITUAL NATURE, OF HIS FEELINGS AND OF HIS
INTELLECT.  THEY KNEW THAT ONLY A PART OF THE PAIN, PLEASURE AND
SATISFACTIONS OF LIFE ARE TO BE FOUND IN MATERIAL THINGS.  THEY SOUGHT
TO PROTECT AMERICANS IN THEIR BELIEFS, THEIR THOUGHTS, THEIR EMOTIONS
AND THEIR SENSATIONS.  THEY CONFERRED, AS AGAINST THE GOVERNMENT, THE
RIGHT TO BE LET ALONE-- THE MOST COMPREHENSIVE OF RIGHTS AND THE RIGHT
MOST VALUED BY CIVILIZED MAN.'  OLMSTEAD V. UNITED STATES, 277 U.S.
438, 478 (1928) (BRANDEIS, J., DISSENTING). 

"SEE GRISWOLD V. CONNECTICUT, SUPRA; CF. NAACP V. ALABAMA, 357 U.S.
449, 462 (1958). 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, THERE IS FOR ME A NARROWER
GROUND FOR AFFIRMING THE COURT OF APPEALS.  THIS TO ME IS A SIMPLE
FIRST AMENDMENT CASE, THAT AMENDMENT BEING APPLICABLE TO THE STATES BY
REASON OF THE FOURTEENTH.  STROMBERG V. CALIFORNIA, 283 U.S. 359. 

UNDER NO STRETCH OF THE LAW AS PRESENTLY STATED COULD MASSACHUSETTS
REQUIRE A LICENSE FOR THOSE WHO DESIRE TO LECTURE ON PLANNED
PARENTHOOD, CONTRACEPTIVES, THE RIGHTS OF WOMEN, BIRTH CONTROL, OR ANY
ALLIED SUBJECT, OR PLACE A TAX ON THAT PRIVILEGE.  AS TO LICENSE TAXES
ON FIRST AMENDMENT RIGHTS WE SAID IN MURDOCK V. PENNSYLVANIA, 319 U.S.
105, 115: 

"A LICENSE TAX CERTAINLY DOES NOT ACQUIRE CONSTITUTIONAL VALIDITY
BECAUSE IT CLASSIFIES THE PRIVILEGES PROTECTED BY THE FIRST AMENDMENT
ALONG WITH THE WARES AND MERCHANDISE OF HUCKSTERS AND PEDDLERS AND
TREATS THEM ALL ALIKE.  SUCH EQUALITY IN TREATMENT DOES NOT SAVE THE
ORDINANCE.  FREEDOM OF PRESS, FREEDOM OF SPEECH, FREEDOM OF RELIGION
ARE IN A PREFERRED POSITION." 

WE HELD IN THOMAS V. COLLINS, 323 U.S. 516, THAT A PERSON SPEAKING
AT A LABOR UNION RALLY COULD NOT BE REQUIRED TO REGISTER OR OBTAIN A
LICENSE: 

     "AS A MATTER OF PRINCIPLE A REQUIREMENT OF REGISTRATION IN

  ORDER TO MAKE A PUBLIC SPEECH WOULD SEEM GENERALLY INCOMPATIBLE

  WITH AN EXERCISE OF THE RIGHTS OF FREE SPEECH AND FREE ASSEMBLY. 

  LAWFUL PUBLIC ASSEMBLIES, INVOLVING NO ELEMENT OF GRAVE AND

  IMMEDIATE DANGER TO AN INTEREST THE STATE IS ENTITLED TO PROTECT,

  ARE NOT INSTRUMENTS OF HARM WHICH REQUIRE PREVIOUS IDENTIFICATION

  OF THE SPEAKERS.  AND THE RIGHT EITHER OF WORKMEN OR OF UNIONS

 UNDER THESE CONDITIONS TO ASSEMBLE AND DISCUSS THEIR OWN AFFAIRS

  IS AS FULLY PROTECTED BY THE CONSTITUTION AS THE RIGHT OF

  BUSINESSMEN, FARMERS, EDUCATORS, POLITICAL PARTY MEMBERS OR

  OTHERS TO ASSEMBLE AND DISCUSS THEIR AFFAIRS AND TO ENLIST THE

  SUPPORT OF OTHERS. 

        .        .          .          . 

     " . . . IF ONE WHO SOLICITS SUPPORT FOR THE CAUSE OF LABOR MAY

  BE REQUIRED TO REGISTER AS A CONDITION TO THE EXERCISE OF HIS

  RIGHT TO MAKE A PUBLIC SPEECH, SO MAY HE WHO SEEKS TO RALLY

  SUPPORT FOR ANY SOCIAL, BUSINESS, RELIGIOUS OR POLITICAL CAUSE. 

  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., AT 539, 540. 

BAIRD ADDRESSED AN AUDIENCE OF STUDENTS AND FACULTY AT BOSTON
UNIVERSITY ON THE SUBJECT OF BIRTH CONTROL AND OVERPOPULATION.  HIS
ADDRESS WAS APPROXIMATELY ONE HOUR IN LENGTH AND CONSISTED OF A
DISCUSSION OF VARIOUS CONTRACEPTIVE DEVICES DISPLAYED BY MEANS OF
DIAGRAMS ON TWO DEMONSTRATION BOARDS, AS WELL AS A DISPLAY OF
CONTRACEPTIVE DEVICES IN THEIR ORIGINAL PACKAGES.  IN ADDITION, BAIRD
SPOKE OF THE RESPECTIVE MERITS OF VARIOUS CONTRACEPTIVE DEVICES;
OVERPOPULATION IN THE WORLD; CRISES THROUGHOUT THE WORLD DUE TO
OVERPOPULATION; THE LARGE NUMBER OF ABORTIONS PERFORMED ON UNWED
MOTHERS; AND QUACK ABORTIONISTS AND THE POTENTIAL HARM TO WOMEN
RESULTING FROM ABORTIONS PERFORMED BY QUACK ABORTIONISTS.  BAIRD ALSO
URGED MEMBERS OF THE AUDIENCE TO PETITION THE MASSACHUSETTS LEGISLATURE
AND TO MAKE KNOWN THEIR FEELINGS WITH REGARD TO BIRTH CONTROL LAWS IN
ORDER TO BRING ABOUT A CHANGE IN THE LAWS.  AT THE CLOSE OF THE ADDRESS
BAIRD INVITED MEMBERS OF THE AUDIENCE TO COME TO THE STAGE AND HELP
THEMSELVES TO THE CONTRACEPTIVE ARTICLES.  WE DO NOT KNOW HOW MANY
ACCEPTED BAIRD'S INVITATION.  WE ONLY KNOW THAT BAIRD PERSONALLY HANDED
ONE WOMAN A PACKAGE OF EMKO VAGINAL FOAM.  HE WAS THEN ARRESTED AND
INDICTED (1) FOR EXHIBITING CONTRACEPTIVE DEVICES AND (2) FOR GIVING
ONE SUCH DEVICE AWAY.  THE CONVICTION FOR THE FIRST OFFENSE WAS
REVERSED, THE SUPREME JUDICIAL COURT OF MASSACHUSETTS HOLDING THAT THE
DISPLAY OF THE ARTICLES WAS ESSENTIAL TO A GRAPHIC REPRESENTATION OF
THE LECTURE.  BUT THE CONVICTION FOR THE GIVING AWAY OF ONE ARTICLE WAS
SUSTAINED.  355 MASS. 746, 247 N.E.2D 574.  THE CASE REACHES US BY
FEDERAL HABEAS CORPUS. 

HAD BAIRD NOT "GIVEN AWAY" A SAMPLE OF ONE OF THE DEVICES WHOSE USE
HE ADVOCATED, THERE COULD BE NO QUESTION ABOUT THE PROTECTION AFFORDED
HIM BY THE FIRST AMENDMENT.  A STATE MAY NOT "CONTRACT THE SPECTRUM OF
AVAILABLE KNOWLEDGE."  GRISWOLD V. CONNECTICUT, 381 U.S. 479, 482.  SEE
ALSO THOMAS V. COLLINS, SUPRA; PIERCE V. SOCIETY OF SISTERS, 268 U.S.
510; MEYER V. NEBRASKA, 262 U.S. 390.  HOWEVER NOXIOUS BAIRD'S IDEAS
MIGHT HAVE BEEN TO THE AUTHORITIES, THE FREEDOM TO LEARN ABOUT THEM,
FULLY TO COMPREHEND THEIR SCOPE AND PORTENT, AND TO WEIGHT THEM AGAINST
THE TENETS OF THE "CONVENTIONAL WISDOM," MAY NOT BE ABRIDGED. 
TERMINIELLO V. CHICAGO, 337 U.S. 1.  OUR SYSTEM OF GOVERNMENT REQUIRES
THAT WE HAVE FAITH IN THE ABILITY OF THE INDIVIDUAL TO DECIDE WISELY,
IF ONLY HE IS FULLY APPRISED OF THE MERITS OF A CONTROVERSY. 

"FREEDOM OF DISCUSSION, IF IT WOULD FULFILL ITS HISTORIC FUNCTION IN
THIS NATION, MUST EMBRACE ALL ISSUES ABOUT WHICH INFORMATION IS NEEDED
OR APPROPRIATE TO ENABLE THE MEMBERS OF SOCIETY TO COPE WITH THE
EXIGENCIES OF THEIR PERIOD."  THORNHILL V. ALABAMA, 310 U.S. 88, 102. 

THE TEACHINGS OF BAIRD AND THOSE OF GALILEO MIGHT BE OF A DIFFERENT
ORDER; BUT THE SUPPRESSION OF EITHER IS EQUALLY REPUGNANT. 

AS MILTON SAID IN THE AREOPAGITICA, "GIVE ME THE LIBERTY TO KNOW, TO
UTTER, AND TO ARGUE FREELY ACCORDING TO CONSCIENCE, ABOVE ALL
LIBERTIES." 

IT IS SAID THAT ONLY BAIRD'S CONDUCT IS INVOLVED AND UNITED STATES
V. O'BRIEN, 391 U.S. 367, IS CITED.  THAT CASE INVOLVED A REGISTRANT
UNDER THE SELECTIVE SERVICE ACT BURNING HIS SELECTIVE SERVICE DRAFT
CARD.  WHEN PROSECUTED FOR THAT ACT, HE DEFENDED HIS CONDUCT AS
"SYMBOLIC SPEECH."  THE COURT HELD IT WAS NOT. 

WHATEVER MAY BE THOUGHT OF THAT DECISION ON THE MERITS, /1/  O'BRIEN
IS NOT CONTROLLING HERE.  THE DISTINCTION BETWEEN "SPEECH" AND
"CONDUCT" IS A VALID ONE, INSOFAR AS IT HELPS TO DETERMINE IN A
PARTICULAR CASE WHETHER THE PURPOSE OF THE ACTIVITY WAS TO AID IN THE
COMMUNICATION OF IDEAS, AND WHETHER THE FORM OF THE COMMUNICATION SO
INTERFERES WITH THE RIGHTS OF OTHERS THAT REASONABLE REGULATIONS MAY BE
IMPOSED.  /2/  SEE PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451, 467
(DOUGLAS, J., DISSENTING.)  THUS, EXCESSIVE NOISE MIGHT WELL BE
"CONDUCT"-- A FORM OF POLLUTION-- WHICH CAN BE MADE SUBJECT TO PRECISE,
NARROWLY DRAWN REGULATIONS.  SEE ADDERLEY V. FLORIDA, 385 U.S. 39, 54
(DOUGLAS, J., DISSENTING).  BUT "THIS COURT HAS REPEATEDLY STATED,
(FIRST AMENDMENT) RIGHTS ARE NOT CONFINED TO VERBAL EXPRESSION.  THEY
EMBRACE APPROPRIATE TYPES OF ACTION . . . "  BROWN V. LOUISIANA, 383
U.S. 131, 141-142. 

BAIRD GAVE AN HOUR'S LECTURE ON BIRTH CONTROL AND AS AN AID TO
UNDERSTANDING THE IDEAS WHICH HE WAS PROPAGATING HE HANDED OUT ONE
SAMPLE OF ONE OF THE DEVICES WHOSE USE HE WAS ENDORSING.  A PERSON
GIVING A LECTURE ON COYOTE-GETTERS WOULD CERTAINLY IMPROVE HIS TEACHING
TECHNIQUE IF HE PASSED ONE OUT TO THE AUDIENCE; AND HE WOULD BE
PROTECTED IN DOING SO UNLESS OF COURSE THE DEVICE WAS LOADED AND READY
TO EXPLODE, KILLING OR INJURING PEOPLE.  THE SAME HOLDS TRUE IN MY MIND
FOR MOUSETRAPS, SPRAY GUNS, OR ANY OTHER ARTICLE NOT DANGEROUS PER SE
ON WHICH SPEAKERS GIVE EDUCATIONAL LECTURES. 

IT IS IRRELEVANT TO THE APPLICATION OF THESE PRINCIPLES THAT BAIRD
WENT BEYOND THE GIVING OF INFORMATION ABOUT BIRTH CONTROL AND ADVOCATED
THE USE OF CONTRACEPTIVE ARTICLES.  THE FIRST AMENDMENT PROTECTS THE
OPPORTUNITY TO PERSUADE TO ACTION WHETHER THAT ACTION BE UNWISE OR
IMMORAL, OR WHETHER THE SPEECH INCITES TO ACTION.  SEE, E.G.,
BRANDENBURG V. OHIO, 395 U.S. 444; EDWARDS V. SOUTH CAROLINA, 372 U.S.
229; TERMINIELLO V. CHICAGO, SUPRA. 

IN THIS CASE THERE WAS NOT EVEN INCITEMENT TO ACTION.  /3/  THERE IS
NO EVIDENCE OR FINDING THAT BAIRD INTENDED THAT THE YOUNG LADY TAKE THE
FOAM HOME WITH HER WHEN HE HANDED IT TO HER OR THAT SHE WOULD NOT HAVE
EXAMINED THE ARTICLE AND THEN RETURNED IT TO BAIRD, HAD HE NOT BEEN
PLACED UNDER ARREST IMMEDIATELY UPON HANDING THE ARTICLE OVER.  /4/ 

FIRST AMENDMENT RIGHTS ARE NOT LIMITED TO VERBAL EXPRESSION.  /5/
THE RIGHT TO PETITION OFTEN INVOLVES THE RIGHT TO WALK.  THE RIGHT OF
ASSEMBLY MAY MEAN PUSHING OR JOSTLING.  PICKETING INVOLVES PHYSICAL
ACTIVITY AS WELL AS A DISPLAY OF A SIGN.  A SIT-IN CAN BE A QUIET,
DIGNIFIED PROTEST THAT HAS FIRST AMENDMENT PROTECTION EVEN THOUGH NO
SPEECH IS INVOLVED, AS WE HELD IN BROWN V. LOUISIANA, SUPRA.  PUTTING
CONTRACEPTIVES ON DISPLAY IS CERTAINLY AN AID TO SPEECH AND
DISCUSSION.  HANDING AN ARTICLE UNDER DISCUSSION TO A MEMBER OF THE
AUDIENCE IS A TECHNIQUE KNOWN TO ALL TEACHERS AND IS COMMONLY USED.  A
HANDOUT MAY BE ON SUCH A SCALE AS TO SMACK OF A VENDOR'S MARKETING
SCHEME.  BUT PASSING ONE ARTICLE TO AN AUDIENCE IS MERELY A PROJECTION
OF THE VISUAL AID AND SHOULD BE A PERMISSIBLE ADJUNCT OF FREE SPEECH. 
BAIRD WAS NOT MAKING A PRESCRIPTION NOR PURPORTING TO GIVE MEDICAL
ADVICE.  HANDING OUT THE ARTICLE WAS NOT EVEN A SUGGESTION THAT THE
LADY USE IT.  AT MOST IT SUGGESTED THAT SHE BECOME FAMILIAR WITH THE
PRODUCT LINE. 

I DO NOT SEE HOW WE CAN HAVE A SOCIETY OF THE DIALOGUE, WHICH THE
FIRST AMENDMENT ENVISAGES, IF TIME-HONORED TEACHING TECHNIQUES ARE
BARRED TO THOSE WHO GIVE EDUCATIONAL LECTURES. 

/1/  I HAVE EARLIER EXPRESSED MY REASONS FOR BELIEVING THAT THE
O'BRIEN DECISION WAS NOT CONSISTENT WITH FIRST AMENDMENT RIGHTS.  SEE
BRANDENBURG V. OHIO, 395 U.S. 444, 455 (CONCURRING OPINION). 

/2/  IN GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490, THE COURT
UPHELD A STATE COURT INJUNCTION AGAINST PEACEFUL PICKETING CARRIED ON
IN VIOLATION OF A STATE "ANTI-RESTRAINT-OF-TRADE" LAW.  GIBONEY,
HOWEVER, IS EASILY DISTINGUISHED FROM THE PRESENT CASE.  UNDER THE
CIRCUMSTANCES THERE PRESENT, "THERE WAS CLEAR DANGER, IMMINENT AND
IMMEDIATE, THAT UNLESS RESTRAINED, APPELLANTS WOULD SUCCEED IN MAKING
(STATE ANTITRUST) POLICY A DEAD LETTER . . . . THEY WERE EXERCISING
THEIR ECONOMIC POWER TOGETHER WITH THAT OF THEIR ALLIES TO COMPEL
EMPIRE TO ABIDE BY UNION RATHER THAN BY STATE REGULATION OF TRADE." 
ID., AT 503 (FOOTNOTE OMITTED).  THERE IS NO SUCH COERCION IN THE
INSTANT CASE NOR IS THERE A SIMILAR FRUSTRATION OF STATE POLICY, SEE
TEXT AT N. 4, INFRA.  FOR AN ANALYSIS OF THE STATE POLICIES UNDERLYING
THE MASSACHUSETTS STATUTE WHICH BAIRD WAS CONVICTED OF HAVING VIOLATED,
SEE DIENES, THE PROGENY OF COMSTOCKERY-- BIRTH CONTROL LAWS RETURN TO
COURT, 21 AM.U.L.REV.  1, 3-44 (1971).     /3/  EVEN UNDER THE
RESTRICTIVE MEANING WHICH THE COURT HAS GIVEN THE FIRST AMENDMENT, AS
APPLIED TO THE STATES BY THE FOURTEENTH, ADVOCACY OF LAW VIOLATION IS
PERMISSIBLE "EXCEPT WHERE SUCH ADVOCACY IS DIRECTED TO INCITING OR
PRODUCING IMMINENT LAWLESS ACTION AND IS LIKELY TO INCITE OR PRODUCE
SUCH ACTION."  BRANDENBURG V. OHIO, SUPRA, N. 1, AT 447. 

/4/  THIS FACTOR ALONE WOULD SEEM TO DISTINGUISH O'BRIEN, SUPRA, AS
THAT CASE TURNED ON THE COURT'S JUDGMENT THAT O'BRIEN'S "CONDUCT"
FRUSTRATED A SUBSTANTIAL GOVERNMENTAL INTEREST.     /5/  FOR A PARTIAL
COLLECTION OF CASES INVOLVING ACTION THAT COMES UNDER FIRST AMENDMENT
PROTECTION SEE BRANDENBURG V. OHIO, SUPRA, N. 1, AT 455-456 (CONCURRING
OPINION). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACKMUN JOINS, CONCURRING
IN THE RESULT. 

IN GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965), WE REVERSED
CRIMINAL CONVICTIONS FOR ADVISING MARRIED PERSONS WITH RESPECT TO THE
USE OF CONTRACEPTIVES.  AS THERE APPLIED, THE CONNECTICUT LAW, WHICH
FORBADE USING CONTRACEPTIVES OR GIVING ADVICE ON THE SUBJECT, UNDULY
INVADED A ZONE OF MARITAL PRIVACY PROTECTED BY THE BILL OF RIGHTS.  THE
CONNECTICUT LAW DID NOT REGULATE THE MANUFACTURE OR SALE OF SUCH
PRODUCTS AND WE EXPRESSLY LEFT OPEN ANY QUESTION CONCERNING THE
PERMISSIBLE SCOPE OF SUCH LEGISLATION.  381 U.S.,AT 485. 

CHAPTER 272, SEC. 21, OF THE MASSACHUSETTS GENERAL LAWS MAKES IT A
CRIMINAL OFFENSE TO DISTRIBUTE, SELL, OR GIVE AWAY ANY DRUG, MEDICINE,
OR ARTICLE FOR THE PREVENTION OF CONCEPTION.  SECTION 21A EXCEPTS FROM
THIS PROHIBITION REGISTERED PHYSICIANS WHO PRESCRIBE FOR AND ADMINISTER
SUCH ARTICLES TO MARRIED PERSONS AND REGISTERED PHARMACISTS WHO
DISPENSE ON MEDICAL PRESCRIPTION.  /1/ 

APPELLEE BAIRD WAS INDICTED FOR GIVING AWAY EMKO VAGINAL FOAM, A
"MEDICINE AND ARTICLE FOR THE PREVENTION OF CONCEPTION . . . . "  /2/
THE STATE DID NOT PURPORT TO CHARGE OR CONVICT BAIRD FOR DISTRIBUTING
TO AN UNMARRIED PERSON.  NO PROOF WAS OFFERED AS TO THE MARITAL STATUS
OF THE RECIPIENT.  THE GRAVAMEN OF THE OFFENSE CHARGED WAS THAT BAIRD
HAD NO LICENSE AND THEREFORE NO AUTHORITY TO DISTRIBUTE TO ANYONE.  AS
THE SUPREME JUDICIAL COURT OF MASSACHUSETTS NOTED, THE CONSTITUTIONAL
VALIDITY OF BAIRD'S CONVICTION RESTED UPON HIS LACK OF STATUS AS A
"DISTRIBUTOR AND NOT . . . THE MARITAL STATUS OF THE RECIPIENT." 
COMMONWEALTH V. BAIRD, 355 MASS. 746, 753, 247 N.E.2D 574, 578 (1969). 
THE FEDERAL DISTRICT COURT WAS OF THE SAME VIEW.  /3/ 

I ASSUME THAT A STATE'S INTEREST IN THE HEALTH OF ITS CITIZENS
EMPOWERS IT TO RESTRICT TO MEDICAL CHANNELS THE DISTRIBUTION OF
PRODUCTS WHOSE USE SHOULD BE ACCOMPANIED BY MEDICAL ADVICE.  I ALSO DO
NOT DOUBT THAT VARIOUS CONTRACEPTIVE MEDICINES AND ARTICLES ARE
PROPERLY AVAILABLE ONLY ON PRESCRIPTION, AND I THEREFORE HAVE NO
DIFFICULTY WITH THE MASSACHUSETTS COURT'S CHARACTERIZATION OF THE
STATUTE AT ISSUE HERE AS EXPRESSING "A LEGITIMATE INTEREST IN
PREVENTING THE DISTRIBUTION OF ARTICLES DESIGNED TO PREVENT CONCEPTION
WHICH MAY HAVE UNDESIRABLE, IF NOT DANGEROUS, PHYSICAL CONSEQUENCES." 
ID., AT 753, 247 N.E.2D, AT 578.  HAD BAIRD DISTRIBUTED A SUPPLY OF THE
SO-CALLED "PILL," I WOULD SUSTAIN HIS CONVICTION UNDER THIS STATUTE. 
/4/  REQUIRING A PRESCRIPTION TO OBTAIN POTENTIALLY DANGEROUS
CONTRACEPTIVE MATERIAL MAY PLACE A SUBSTANTIAL BURDEN UPON THE RIGHT
RECOGNIZED IN GRISWOLD, BUT THAT BURDEN IS JUSTIFIED BY A STRONG STATE
INTEREST AND DOES NOT, AS DID THE STATUTE AT ISSUE IN GRISWOLD, SWEEP
UNNECESSARILY BROADLY OR SEEK "TO ACHIEVE ITS GOALS BY MEANS HAVING A
MAXIMUM DESTRUCTIVE IMPACT UPON" A PROTECTED RELATIONSHIP.  GRISWOLD V.
CONNECTICUT, 381 U.S.,AT 485. 

BAIRD, HOWEVER, WAS FOUND GUILTY OF GIVING AWAY VAGINAL FOAM. 
INQUIRY INTO THE VALIDITY OF THIS CONVICTION DOES NOT COME TO AN END
MERELY BECAUSE SOME CONTRACEPTIVES ARE HARMFUL AND THEIR DISTRIBUTION
MAY BE RESTRICTED.  OUR GENERAL RELUCTANCE TO QUESTION A STATE'S
JUDGMENT ON MATTERS OF PUBLIC HEALTH MUST GIVE WAY WHERE, AS HERE, THE
RESTRICTION AT ISSUE BURDENS THE CONSTITUTIONAL RIGHTS OF MARRIED
PERSONS TO USE CONTRACEPTIVES.  IN THESE CIRCUMSTANCES WE MAY NOT
ACCEPT ON FAITH THE STATE'S CLASSIFICATION OF A PARTICULAR
CONTRACEPTIVE AS DANGEROUS TO HEALTH.  DUE REGARD FOR PROTECTING
CONSTITUTIONAL RIGHTS REQUIRES THAT THE RECORD CONTAIN EVIDENCE THAT A
RESTRICTION ON DISTRIBUTION OF VAGINAL FOAM IS ESSENTIAL TO ACHIEVE THE
STATUTORY PURPOSE, OR THE RELEVANT FACTS CONCERNING THE PRODUCT MUST BE
SUCH AS TO FALL WITHIN THE RANGE OF JUDICIAL NOTICE. 

NEITHER REQUIREMENT IS MET HERE.  NOTHING IN THE RECORD EVEN
SUGGESTS THAT THE DISTRIBUTION OF VAGINAL FOAM SHOULD BE ACCOMPANIED BY
MEDICAL ADVICE IN ORDER TO PROTECT THE USER'S HEALTH.  NOR DOES THE
OPINION OF THE MASSACHUSETTS COURT OR THE STATE'S BRIEF FILED HERE
MARSHAL FACTS DEMONSTRATING THAT THE HAZARDS OF USING VAGINAL FOAM ARE
COMMON KNOWLEDGE OR SO INCONTROVERTIBLE THAT THEY MAY BE NOTICED
JUDICIALLY.  ON THE CONTRARY, THE STATE ACKNOWLEDGES THAT EMKO IS A
PRODUCT WIDELY AVAILABLE WITHOUT PRESCRIPTION.  GIVEN GRISWOLD V.
CONNECTICUT, SUPRA, AND ABSENT PROOF OF THE PROBABLE HAZARDS OF USING
VAGINAL FOAM, WE COULD NOT SUSTAIN APPELLEE'S CONVICTION HAD IT BEEN
FOR SELLING OR GIVING AWAY FOAM TO A MARRIED PERSON.  JUST AS IN
GRISWOLD, WHERE THE RIGHT OF MARRIED PERSONS TO USE CONTRACEPTIVES WAS
"DILUTED OR ADVERSELY AFFECTED" BY PERMITTING A CONVICTION FOR GIVING
ADVICE AS TO ITS EXERCISE, ID., AT 481, SO HERE, TO SANCTION A MEDICAL
RESTRICTION UPON DISTRIBUTION OF A CONTRACEPTIVE NOT PROVED HAZARDOUS
TO HEALTH WOULD IMPAIR THE EXERCISE OF THE CONSTITUTIONAL RIGHT. 

THAT BAIRD COULD NOT BE CONVICTED FOR DISTRIBUTING EMKO TO A MARRIED
PERSON DISPOSES OF THIS CASE.  ASSUMING, ARGUENDO, THAT THE RESULT
WOULD BE OTHERWISE HAD THE RECIPIENT BEEN UNMARRIED, NOTHING HAS BEEN
PLACED IN THE RECORD TO INDICATE HERE MARITAL STATUS.  THE STATE HAS
MAINTAINED THAT MARITAL STATUS IS IRRELEVANT BECAUSE AN UNLICENSED
PERSON CANNOT LEGALLY DISPENSE VAGINAL FOAM EITHER TO MARRIED OR
UNMARRIED PERSONS.  THIS APPROACH IS PLAINLY ERRONEOUS AND REQUIRES THE
REVERSAL OF BAIRD'S CONVICTION; FOR ON THE FACTS OF THIS CASE, IT
DEPRIVES US OF KNOWING WHETHER BAIRD WAS IN FACT CONVICTED FOR MAKING A
CONSTITUTIONALLY PROTECTED DISTRIBUTION OF EMKO TO A MARRIED PERSON. 

THE PRINCIPLE ESTABLISHED IN STROMBERG V. CALIFORNIA, 283 U.S. 359
(1931), AND CONSISTENTLY ADHERED TO IS THAT A CONVICTION CANNOT STAND
WHERE THE "RECORD FAILS) TO PROVE THAT THE CONVICTION WAS NOT FOUNDED
UPON A THEORY WHICH COULD NOT CONSTITUTIONALLY SUPPORT A VERDICT." 
STREET V. NEW YORK, 394 U.S. 576, 586 (1969).  TO UPHOLD A CONVICTION
EVEN "THOUGH WE CANNOT KNOW THAT IT DID NOT REST ON THE INVALID
CONSTITUTIONAL GROUND . . . WOULD BE TO COUNTENANCE A PROCEDURE WHICH
WOULD CAUSE A SERIOUS IMPAIRMENT OF CONSTITUTIONAL RIGHTS."  WILLIAMS
V. NORTH CAROLINA, 317 U.S. 287, 292 (1942). 

BECAUSE THIS CASE CAN BE DISPOSED OF ON THE BASIS OF SETTLED
CONSTITUTIONAL DOCTRINE, I PERCEIVE NO REASON FOR REACHING THE NOVEL
CONSTITUTIONAL QUESTION WHETHER A STATE MAY RESTRICT OR FORBID THE
DISTRIBUTION OF CONTRACEPTIVES TO THE UNMARRIED.  CF. ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 345-348 (1936) (BRANDEIS, J.,
CONCURRING). 

/1/  SECTION 21 PROVIDES AS FOLLOWS: 

"EXCEPT AS PROVIDED IN SECTION TWENTY-ONE A, WHOEVER SELLS, LENDS,
GIVES AWAY, EXHIBITS OR OFFERS TO SELL, LEND OR GIVE AWAY AN INSTRUMENT
OR OTHER ARTICLE INTENDED TO BE USED FOR SELF-ABUSE, OR ANY DRUG,
MEDICINE, INSTRUMENT OR ARTICLE WHATEVER FOR THE PREVENTION OF
CONCEPTION OR FOR CAUSING UNLAWFUL ABORTION, OR ADVERTISES THE SAME, OR
WRITES, PRINTS, OR CAUSES TO BE WRITTEN OR PRINTED A CARD, CIRCULAR,
BOOK, PAMPHLET, ADVERTISEMENT OR NOTICE OF ANY KIND STATING WHEN,
WHERE, HOW, OF WHOM OR BY WHAT MEANS SUCH ARTICLE CAN BE PURCHASED OR
OBTAINED, OR MANUFACTURES OR MAKES ANY SUCH ARTICLE SHALL BE PUNISHED
BY IMPRISONMENT IN THE STATE PRISON FOR NOT MORE THAN FIVE YEARS OR IN
JAIL OR THE HOUSE OF CORRECTION FOR NOT MORE THAN TWO AND ONE HALF
YEARS OR BY A FINE OF NOT LESS THAN ONE HUNDRED NOR MORE THAN ONE
THOUSAND DOLLARS." 


"A REGISTERED PHYSICIAN MAY ADMINISTER TO OR PRESCRIBE FOR ANY
MARRIED PERSON DRUGS OR ARTICLES INTENDED FOR THE PREVENTION OF
PREGNANCY OR CONCEPTION.  A REGISTERED PHARMACIST ACTUALLY ENGAGED IN
THE BUSINESS OF PHARMACY MAY FURNISH SUCH DRUGS OR ARTICLES TO ANY
MARRIED PERSON PRESENTING A PRESCRIPTION FROM A REGISTERED PHYSICIAN. 

"A PUBLIC HEALTH AGENCY, A REGISTERED NURSE, OR A MATERNITY HEALTH
CLINIC OPERATED BY OR IN AN ACCREDITED HOSPITAL MAY FURNISH INFORMATION
TO ANY MARRIED PERSON AS TO WHERE PROFESSIONAL ADVICE REGARDING SUCH
DRUGS OR ARTICLES MAY BE LAWFULLY OBTAINED. 

"THIS SECTION SHALL NOT BE CONSTRUED AS AFFECTING THE PROVISIONS OF
OF DRUGS OR ARTICLES INTENDED FOR THE PREVENTION OF PREGNANCY OR
CONCEPTION; NOR SHALL THIS SECTION BE CONSTRUED SO AS TO PERMIT THE
SALE OR DISPENSING OF SUCH DRUGS OR ARTICLES BY MEANS OF ANY VENDING
MACHINE OR SIMILAR DEVICE." 

/2/  THE INDICTMENT STATES: 

"THE JURORS FOR THE COMMONWEALTH OF MASSACHUSETTS ON THEIR OATH
PRESENT THAT WILLIAM R. BAIRD, ON THE SIXTH DAY OF APRIL, IN THE YEAR
OF OUR LORD ONE THOUSAND NINE HUNDRED AND SIXTY-SEVEN, DID UNLAWFULLY
GIVE AWAY A CERTAIN MEDICINE AND ARTICLE FOR THE PREVENTION OF
CONCEPTION, TO WIT:  EMKO VAGINAL FOAM, THE GIVING AWAY OF THE SAID
MEDICINE AND ARTICLE BY THE SAID WILLIAM R. BAIRD NOT BEING IN
ACCORDANCE WITH, OR AUTHORIZED OR PERMITTED BY, THE PROVISIONS OF
COMMONWEALTH." 

/3/  "HAD SEC. 21A AUTHORIZED REGISTERED PHYSICIANS TO ADMINISTER OR
PRESCRIBE CONTRACEPTIVES FOR UNMARRIED AS WELL AS FOR MARRIED PERSONS,
THE LEGAL POSITION OF THE PETITIONER WOULD NOT HAVE BEEN IN ANY WAY
ALTERED.  NOT BEING A PHYSICIAN HE WOULD STILL HAVE BEEN PROHIBITED BY
SEC. 21 FROM 'GIVING AWAY' THE CONTRACEPTIVE."  310 F.SUPP.  951, 954
(MASS. 1970). 

/4/  THE FOOD AND DRUG ADMINISTRATION HAS MADE A FINDING THAT BIRTH
CONTROL PILLS POSE POSSIBLE HAZARDS TO HEALTH.  IT THEREFORE RESTRICTS
DISTRIBUTION AND RECEIPT OF SUCH PRODUCTS IN INTERSTATE COMMERCE TO
PROPERLY LABELED PACKAGES THAT MUST BE SOLD PURSUANT TO A
PRESCRIPTION.  21 CFR 130.45.  A VIOLATION OF THIS LAW IS PUNISHABLE BY
IMPRISONMENT FOR ONE YEAR, A FINE OF NOT MORE THAN $10,000, OR BOTH. 
21 U.S.C. 331, 333. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

THE JUDGMENT OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS IN
SUSTAINING APPELLEE'S CONVICTION FOR DISPENSING MEDICINAL MATERIAL
WITHOUT A LICENSE SEEMS EMINENTLY CORRECT TO ME AND I WOULD NOT DISTURB
IT.  IT IS UNDISPUTED THAT APPELLEE IS NOT A PHYSICIAN OR PHARMACIST
AND WAS PROHIBITED UNDER MASSACHUSETTS LAW FROM DISPENSING
CONTRACEPTIVES TO ANYONE, REGARDLESS OF MARITAL STATUS.  TO MY MIND THE
VALIDITY OF THIS RESTRICTION ON DISPENSING MEDICINAL SUBSTANCES IS THE
ONLY ISSUE BEFORE THE COURT, AND APPELLEE HAS NO STANDING TO CHALLENGE
THAT PART OF THE STATUTE RESTRICTING THE PERSONS TO WHOM CONTRACEPTIVES
ARE AVAILABLE.  THERE IS NO NEED TO LABOR THIS POINT, HOWEVER, FOR
EVERYONE SEEMS TO AGREE THAT IF MASSACHUSETTS HAS VALIDLY REQUIRED, AS
A HEALTH MEASURE, THAT ALL CONTRACEPTIVES BE DISPENSED BY A PHYSICIAN
OR PURSUANT TO A PHYSICIAN'S PRESCRIPTION, THEN THE STATUTORY
DISTINCTION BASED ON MARITAL STATUS HAS NO BEARING ON THIS CASE. 
UNITED STATES V. RAINES, 362 U.S. 17, 21 (1960). 

THE OPINION OF THE COURT TODAY BRUSHES ASIDE APPELLEE'S STATUS AS AN
UNLICENSED LAYMAN BY CONCLUDING THAT THE MASSACHUSETTS LEGISLATURE WAS
NOT REALLY CONCERNED WITH THE PROTECTION OF HEALTH WHEN IT PASSED THIS
STAUTE.  MR. JUSTICE WHITE ACKNOWLEDGES THE STATUTORY CONCERN WITH THE
PROTECTION OF HEALTH, BUT FINDS THE RESTRICTION ON DISTRIBUTORS OVERLY
BROAD BECAUSE THE STATE HAS FAILED TO ADDUCE FACTS SHOWING THE HEALTH
HAZARDS OF THE PARTICULAR SUBSTANCE DISPENSED BY APPELLEE AS
DISTINGUISHED FROM OTHER CONTRACEPTIVES.  MR. JUSTICE DOUGLAS'
CONCURRING OPINION DOES NOT DIRECTLY CHALLENGE THE POWER OF
MASSACHUSETTS TO PROHIBIT LAYMEN FROM DISPENSING CONTRACEPTIVES, BUT
CONSIDERS THAT APPELLEE RATHER THAN DISPENSING THE SUBSTANCE WAS
RESORTING TO A "TIME-HONORED TEACHING TECHNIQUE" BY UTILIZING A "VISUAL
AID" AS AN ADJUNCT TO HIS PROTECTED SPEECH.  I AM PUZZLED BY THIS THIRD
CHARACTERIZATION OF THE CASE.  IF THE SUGGESTION IS THAT APPELLEE WAS
MERELY DISPLAYING THE CONTRACEPTIVE MATERIAL WITHOUT RELINQUISHING HIS
OWNERSHIP OF IT, THEN THE ARGUMENT MUST BE THAT THE PROSECUTION FAILED
TO PROVE THAT APPELLEE HAD "GIVEN AWAY" THE CONTRACEPTIVE MATERIAL. 
BUT APPELLEE DOES NOT CHALLENGE THE SUFFICIENCY OF THE EVIDENCE, AND
HIMSELF SUMMARIZES THE RECORD AS SHOWING THAT "AT THE CLOSE OF HIS
LECTURE HE INVITED MEMBERS OF THE AUDIENCE . . . TO COME AND HELP
THEMSELVES."  ON THE OTHER HAND, IF THE CONCURRING OPINION MEANS THAT
THE FIRST AMENDMENT PROTECTS THE DISTRIBUTION OF ALL ARTICLES "NOT
DANGEROUS PER SE" WHEN THE DISTRIBUTION IS COUPLED WITH SOME FORM OF
SPEECH, THEN I MUST CONFESS THAT I HAVE MISREAD CERTAIN CASES IN THE
AREA.  SEE, E.G., UNITED STATES V, O'BRIEN, 391 U.S. 367, 376 (1968);
COX V. LOUISIANA, 379 U.S. 536, 555 (1965); GIBONEY V. EMPIRE STORAGE
CO., 336 U.S. 490, 502 (1949). 

MY DISAGREEMENT WITH THE OPINION OF THE COURT AND THAT OF MR. JUSTICE
WHITE GOES FAR BEYOND MERE PUZZLEMENT, HOWEVER, FOR THESE OPINIONS
SERIOUSLY INVADE THE CONSTITUTIONAL PREROGATIVES OF THE STATES AND
REGRETTABLY HARK BACK TO THE HEYDAY OF SUBSTANTIVE DUE PROCESS.     IN
AFFIRMING APPELLEE'S CONVICTION, THE HIGHEST TRIBUNAL IN MASSACHUSETTS
HELD THAT THE STATUTORY REQUIREMENT THAT CONTRACEPTIVES BE DISPENSED
ONLY THROUGH MEDICAL CHANNELS SERVED THE LEGITIMATE INTEREST OF THE
STATE IN PROTECTING THE HEALTH OF ITS CITIZENS.  THE COURT TODAY
BLITHELY HURDLES THIS AUTHORITATIVE STATE PRONOUNCEMENT AND CONCLUDES
THAT THE STATUTE HAS NO SUCH PURPOSE.  THREE BASIC ARGUMENTS ARE
ADVANCED:  FIRST, SINCE THE DISTRIBUTION OF CONTRACEPTIVES WAS
PROHIBITED AS A MORAL MATTER IN MASSACHUSETTS PRIOR TO 1966, IT IS
IMPOSSIBLE TO BELIEVE THAT THE LEGISLATURE WAS CONCERNED WITH HEALTH
WHEN IT LIFTED THE COMPLETE BAN BUT INSISTED ON MEDICAL SUPERVISION.  I
FAIL TO SEE WHY THE HISTORICAL PREDOMINANCE OF AN UNACCEPTABLE
LEGISLATIVE PURPOSE MAKES INCREDIBLE THE EMERGENCE OF A NEW AND VALID
ONE.  /1/  SEE MCGOWAN V. MARYLAND, 366 U.S. 420, 445-449 (1961).  THE
SECOND ARGUMENT, FINDING ITS ORIGIN IN A DISSENTING OPINION IN THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS, REJECTS A HEALTH PURPOSE
BECAUSE, "(IF THERE IS NEED TO HAVE A PHYSICIAN PRESCRIBE . . .
CONTRACEPTIVES, THAT NEED IS AS GREAT FOR UNMARRIED PERSONS AS FOR
MARRIED PERSONS."  355 MASS. 746, 758, 247 N.E.2D 574, 581.  THIS
ARGUMENT CONFUSES THE VALIDITY OF THE RESTRICTION ON DISTRIBUTORS WITH
THE VALIDITY OF THE FURTHER RESTRICTION ON DISTRIBUTEES, A PART OF THE
STATUTE NOT PROPERLY BEFORE THE COURT.  ASSUMING THE LEGISLATURE TOO
BROADLY RESTRICTED THE CLASS OF PERSONS WHO COULD OBTAIN
CONTRACEPTIVES, IT HARDLY FOLLOWS THAT IT SAW NO NEED TO PROTECT THE
HEALTH OF ALL PERSONS TO WHOM THEY ARE MADE AVAILABLE.  THIRD, THE
COURT SEES NO HEALTH PURPOSE UNDERLYING THE RESTRICTION ON DISTRIBUTORS
BECAUSE OTHER STATE AND FEDERAL LAWS REGULATE THE DISTRIBUTION OF
HARMFUL DRUGS.  I KNOW OF NO RULE THAT ALL ENACTMENTS RELATING TO A
PARTICULAR PURPOSE MUST BE NEATLY CONSOLIDATED IN ONE PACKAGE IN THE
STATUTE BOOKS FOR, IF SO, THE U.S.C. WILL NOT PASS MUSTER.  I AM UNABLE
TO DRAW ANY INFERENCE AS TO LEGISLATIVE PURPOSE FROM THE FACT THAT THE
RESTRICTION ON DISPENSING CONTRACEPTIVES WAS NOT CODIFIED WITH OTHER
STATUTORY PROVISIONS REGULATING THE DISTRIBUTION OF MEDICINAL
SUBSTANCES.  AND THE EXISTENCE OF NONCONFLICTING, NONPRE-EMPTIVE
FEDERAL LAWS IS SIMPLY WITHOUT SIGNIFICANCE IN JUDGING THE VALIDITY OR
PURPOSE OF A STATE LAW ON THE SAME SUBJECT MATTER. 

IT IS POSSIBLE, OF COURSE, THAT SOME MEMBERS OF THE MASSACHUSETTS
LEGISLATURE DESIRED CONTRACEPTIVES TO BE DISPENSED ONLY THROUGH MEDICAL
CHANNELS IN ORDER TO MINIMIZE THEIR USE, RATHER THAN TO PROTECT THE
HEALTH OF THEIR USERS, BUT I DO NOT THINK IT IS THE PROPER FUNCTION OF
THIS COURT TO DISMISS AS DUBIOUS A STATE COURT'S EXPLICATION OF A STATE
STATUTE ABSENT OVERWHELMING AND IRREFUTABLE REASONS FOR DOING SO. 

MR. JUSTICE WHITE, WHILE ACKNOWLEDGING A VALID LEGISLATIVE PURPOSE
OF PROTECTING HEALTH, CONCLUDES THAT THE STATE LACKS POWER TO REGULATE
THE DISTRIBUTION OF THE CONTRACEPTIVE INVOLVED IN THIS CASE AS A MEANS
OF PROTECTING HEALTH.  /2/  THE OPINION GRANTS THAT APPELLEE'S
CONVICTION WOULD BE VALID IF HE HAD GIVEN AWAY A POTENTIALLY HARMFUL
SUBSTANCE, BUT REJECTS THE STATE'S PLACING THIS PARTICULAR
CONTRACEPTIVE IN THAT CATEGORY.  SO FAR AS I AM AWARE, THIS COURT HAS
NEVER BEFORE CHALLENGED THE POLICE POWER OF A STATE TO PROTECT THE
PUBLIC FROM THE RISKS OF POSSIBLY SPURIOUS AND DELETERIOUS SUBSTANCES
SOLD WITHIN ITS BORDERS.  MOREOVER, A STATUTORY CLASSIFICATION IS NOT
INVALID

"SIMPLY BECAUSE SOME INNOCENT ARTICLES OR TRANSACTIONS MAY BE FOUND
WITHIN THE PROSCRIBED CLASS.  THE INQUIRY MUST BE WHETHER, CONSIDERING
THE END IN VIEW, THE STATUTE PASSES THE BOUNDS OF REASON AND ASSUMES
THE CHARACTER OF A MERELY ARBITARY FIAT."  PURITY EXTRACT & TONIC CO.
V. LYNCH, 226 U.S. 192, 204 (1912).  BUT SINCE THE MASSACHUSETTS
STATUTE SEEKS TO PROTECT HEALTH BY REGULATING CONTRACEPTIVES THE
OPINION INVOKES GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965), AND PUTS
THE STATUTORY CLASSIFICATION TO AN UNPRECEDENTED TEST:  EITHER THE
RECORD MUST CONTAIN EVIDENCE SUPPORTING THE CLASSIFICATION OR THE
HEALTH HAZARDS OF THE PARTICULAR CONTRACEPTIVE MUST BE JUDICIALLY
NOTICEABLE.  THIS IS INDEED A NOVEL CONSTITUTIONAL DOCTRINE AND NOT
SURPRISINGLY NO AUTHORITY IS CITED FOR IT. 

SINCE THE POTENTIAL HARMFULNESS OF THIS PARTICULAR MEDICINAL
SUBSTANCE HAS NEVER BEEN PLACED IN ISSUE IN THE STATE OR FEDERAL
COURTS, THE STATE CAN HARDLY BE FAULTED FOR ITS FAILURE TO BUILD A
RECORD ON THIS POINT.  AND IT TOTALLY MYSTIFIES ME WHY, IN THE ABSENCE
OF SOME EVIDENCE IN THE RECORD, THE FACTUAL UNDERPINNINGS OF THE
STATUTORY CLASSIFICATION MUST BE "INCONTROVERTIBLE" OR A MATTER OF
"COMMON KNOWLEDGE." 

THE ACTUAL HAZARDS OF INTRODUCING A PARTICULAR FOREIGN SUBSTANCE
INTO THE HUMAN BODY ARE FREQUENTLY CONTROVERTED, AND I CANNOT BELIEVE
THAT UNANIMITY OF EXPERT OPINION IS A PREREQUISITE TO A STATE'S
EXERCISE OF ITS POLICE POWER, NO MATTER WHAT THE SUBJECT MATTER OF THE
REGULATION.  EVEN ASSUMING NO PRESENT DISPUTE AMONG MEDICAL
AUTHORITIES, WE CANNOT IGNORE THAT IT HAS BECOME COMMONPLACE FOR A DRUG
OR FOOD ADDITIVE TO BE UNIVERSALLY REGARDED AS HARMLESS ON ONE DAY AND
TO BE CONDEMNED AS PERILOUS ON THE NEXT.  IT IS INAPPROPRIATE FOR THIS
COURT TO OVERRULE A LEGISLATIVE CLASSIFICATION BY RELYING ON THE
PRESENT CONSENSUS AMONG LEADING AUTHORITIES.  THE COMMANDS OF THE
CONSTITUTION CANNOT FLUCTUATE WITH THE SHIFTING TIDES OF SCIENTIFIC
OPINION. 

EVEN IF IT WERE CONCLUSIVELY ESTABLISHED ONCE AND FOR ALL THAT THE
PRODUCT DISPENSED BY APPELLEE IS NOT ACTUALLY OR POTENTIALLY DANGEROUS
IN THE SOMATIC SENSE, I WOULD STILL BE UNABLE TO AGREE THAT THE
RESTRICTION ON DISPENSING IT FALLS OUTSIDE THE STATE'S POWER TO
REGULATE IN THE AREA OF HEALTH.  THE CHOICE OF A MEANS OF BIRTH
CONTROL, ALTHOUGH A HIGHLY PERSONAL MATTER, IS ALSO A HEALTH MATTER IN
A VERY REAL SENSE, AND I SEE NOTHING ARBITRARY IN A REQUIREMENT OF
MEDICAL SUPERVISION.  /3/  IT IS GENERALLY ACKNOWLEDGED THAT
CONTRACEPTIVES VARY IN DEGREE OF EFFECTIVENESS AND POTENTIAL
HARMFULNESS.  /4/  THERE MAY BE COMPELLING HEALTH REASONS FOR CERTAIN
WOMEN TO CHOOSE THE MOST EFFECTIVE MEANS OF BIRTH CONTROL AVAILABLE, NO
MATTER HOW HARMLESS THE LESS EFFECTIVE ALTERNATIVES.  /5/  OTHERS MIGHT
BE ADVISED NOT TO USE A HIGHLY EFFECTIVE MEANS OF CONTRACEPTION BECAUSE
OF THEIR PECULIAR SUSCEPTIBILITY TO AN ADVERSE SIDE EFFECT.  /6/
MOREOVER, THERE MAY BE INFORMATION KNOWN TO THE MEDICAL PROFESSION THAT
A PARTICULAR BRAND OF CONTRACEPTIVE IS TO BE PREFERRED OR AVOIDED, OR
THAT IT HAS NOT BEEN ADEQUATELY TESTED.  NONETHELESS, THE CONCURRING
OPINION WOULD HOLD, AS A CONSTITUTIONAL MATTER, THAT A STATE MUST ALLOW
SOMEONE WITHOUT MEDICAL TRAINING THE SAME POWER TO DISTRIBUTE THIS
MEDICINAL SUBSTANCE AS IS ENJOYED BY A PHYSICIAN. 

IT IS REVEALING, I THINK, THAT THOSE PORTIONS OF THE MAJORITY AND
CONCURRING OPINIONS REJECTING THE STATUTORY LIMITATION ON DISTRIBUTORS
RELY ON NO PARTICULAR PROVISION OF THE CONSTITUTION.  I SEE NOTHING IN
THE FOURTEENTH AMENDMENT OR ANY OTHER PART OF THE CONSTITUTION THAT
EVEN VAGUELY SUGGESTS THAT THESE MEDICINAL FORMS OF CONTRACEPTIVES MUST
BE AVAILABLE IN THE OPEN MARKET.  I DO NOT CHALLENGE GRISWOLD V.
CONNECTICUT, SUPRA, DESPITE ITS TENUOUS MOORINGS TO THE TEST OF THE
CONSTITUTION, BUT I CANNOT VIEW IT AS CONTROLLING AUTHORITY FOR THIS
CASE.  THE COURT WAS THERE CONFRONTED WITH A STATUTE FLATLY PROHIBITING
THE USE OF CONTRACEPTIVES, NOT ONE REGULATING THEIR DISTRIBUTION.  I
SIMPLY CANNOT BELIEVE THAT THE LIMITATION ON THE CLASS OF LAWFUL
DISTRIBUTORS HAS SIGNIFICANTLY IMPAIRED THE RIGHT TO USE CONTRACEPTIVES
IN MASSACHUSETTS.  BY RELYING ON GRISWOLD IN THE PRESENT CONTEXT, THE
COURT HAS PASSED BEYOND THE PENUMBRAS OF THE SPECIFIC GUARANTEES INTO
THE UNCIRCUMSCRIBED AREA OF PERSONAL PREDILECTIONS. 

THE NEED FOR DISSEMINATION OF INFORMATION ON BIRTH CONTROL IS NOT
IMPINGED IN THE SLIGHTEST BY LIMITING THE DISTRIBUTION OF MEDICINAL
SUBSTANCES TO MEDICAL AND PHARMACEUTICAL CHANNELS AS MASSACHUSETTS HAS
DONE BY STATUTE.  THE APPELLEE HAS SUCCEEDED, IT SEEMS, IN CLOAKING HIS
ACTIVITIES IN SOME NEW PERMUTATION OF THE FIRST AMENDMENT ALTHOUGH HIS
CONVICTION RESTS IN FACT AND LAW ON DISPENSING A MEDICINAL SUBSTANCE
WITHOUT A LICENSE.  I AM CONSTRAINED TO SUGGEST THAT IF THE
CONSTITUTION CAN BE STRAINED TO INVALIDATE THE MASSACHUSETTS STATUTE
UNDERLYING APPELLEE'S CONVICTION, WE COULD QUITE AS WELL EMPLOY IT FOR
THE PROTECTION OF A "CURBSTONE QUACK," REMINISCENT OF THE "MEDICINE
MAN" OF TIMES PAST, WHO ATTRACTED A CROWD OF THE CURIOUS WITH A SOAPBOX
LECTURE AND THEN PLIED THEM WITH "FREE SAMPLES" OF SOME UNPROVED
REMEDY.  MASSACHUSETTS PRESUMABLY OUTLAWED SUCH ACTIVITIES LONG AGO,
BUT TODAY'S HOLDING SEEMS TO INVITE THEIR RETURN. 

/1/  THE COURT PLACES SOME RELIANCE ON THE OPINION OF THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS IN STURGIS V. ATTORNEY GENERAL, 358
MASS.-- , 260 N.E.2D 687 (1970), TO SHOW THAT SEC. 21A IS INTENDED TO
REGULATE MORALS RATHER THAN PUBLIC HEALTH.  IN STURGIS THE STATE COURT
REJECTED A CHALLENGE BY A GROUP OF PHYSICIANS TO THAT PART OF THE
STATUTE PROHIBITING THE DISTRIBUTION OF CONTRACEPTIVES TO UNMARRIED
WOMEN.  THE COURT ACCEPTED THE STATE'S INTEREST IN "REGULATING THE
PRIVATE SEXUAL LIVES OF SINGLE PERSONS," THAT INTEREST BEING EXPRESSED
IN THE RESTRICTION ON DISTRIBUTEES.  ID., AT -- , 260 N.E.2D, AT 690. 
THE PURPOSE OF THE RESTRICTION ON DISTRIBUTORS WAS NOT IN ISSUE. 

/2/  THE OPINION OF THE COURT STATES IN PASSING THAT IF THE
RESTRICTION ON DISTRIBUTORS WERE IN FACT INTENDED AS A HEALTH MEASURE,
IT WOULD BE OVERLY BROAD.  SINCE THE COURT DOES NOT DEVELOP THIS
ARGUMENT IN DETAIL, MY RESPONSE IS ADDRESSED SOLELY TO THE REASONING IN
THE OPINION OF MR. JUSTICE WHITE, CONCURRING IN THE RESULT. 

/3/  FOR GENERAL DISCUSSIONS OF THE NEED FOR MEDICAL SUPERVISION
BEFORE CHOOSING A MEANS OF BIRTH CONTROL, SEE MANUAL OF FAMILY PLANNING
AND CONTRACEPTIVE PRACTICE 47-53 (M. CALDERONE ED. 1970); ADVANCED
CONCEPTS IN CONTRACEPTION 22-24 (F. HOFFMAN & R. KLEINMAN ED. 1968). 

/4/  SEE U.S. COMMISSION ON POPULATION GROWTH AND THE AMERICAN
FUTURE, POPULATION AND THE AMERICAN FUTURE, PT. II, PP. 38-39 (MAR. 16,
1972); MANUAL OF FAMILY PLANNING, SUPRA, AT 268-274, 316, 320, 342,
346; JAFFE, TOWARD THE REDUCTION OF UNWANTED PREGNANCY, 174 SCIENCE
119, 121 (OCT. 8, 1971); G. HARDIN, BIRTH CONTROL 128 (1970); E.
HAVEMANN, BIRTH CONTROL (1967).  THE CONTRACEPTIVE SUBSTANCE DISPENSED
BY APPELLEE, VAGINAL FOAM, IS THOUGHT TO BE BETWEEN 70% AND 80%
EFFECTIVE.  SEE JAFFE, SUPRA, AT 121; DINGLE & TIETZE, COMPARATIVE
STUDY OF THREE CONTRACEPTIVE METHODS, 85 AMER.J.OBST;& GYN.  1012, 1021
(1963).  THE BIRTH CONTROL PILL, BY CONTRAST, IS THOUGHT TO BE BETTER
THAN 99% EFFECTIVE.  SEE HAVEMANN, BIRTH CONTROL, SUPRA. 

/5/  SEE PERKIN, ASSESSMENT OF REPRODUCTIVE RISK IN NONPREGNANT
WOMEN-- A GUIDE TO ESTABLISHING PRIORITIES FOR CONTRACEPTIVE CARE, 101
AMER.J.OBST.& GYN.  709 (1968). 

/6/  SEE MANUAL OF FAMILY PLANNING, SUPRA, AT 301, 332-333, 336
340. 

JOSEPH R. NOLAN, SPECIAL ASSISTANT ATTORNEY GENERAL OF
MASSACHUSETTS, ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF
WERE ROBERT H. QUINN, ATTORNEY GENERAL, JOHN J. IRWIN, JR., AND RUTH I.
ABRAMS, ASSISTANT ATTORNEYS GENERAL, AND GARRETT H. BYRNE. 

JOSEPH D. TYDINGS ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEFS WAS JOSEPH J. BALLIRO. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY HARRIET F.
PILPEL AND NANCY F. WECHSLER FOR THE PLANNED PARENTHOOD FEDERATION OF
AMERICA, INC.; BY ROGER P. STOKEY FOR THE PLANNED PARENTHOOD LEAGUE OF
MASSACHUSETTS; BY MELVIN L. WULF FOR THE AMERICAN CIVIL LIBERTIES UNION
ET AL.; AND BY SYLVIA S. ELLISON FOR HUMAN RIGHTS FOR WOMEN, INC.
..END :















LOPER V. BETO, 405 U.S. 473 


       LOPER V. BETO, CORRECTIONS DIRECTOR, ET AL.

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 70-5388.  ARGUED JANUARY 13, 1972-- DECIDED MARCH 22,

           1972 


FOR THE PURPOSE OF IMPEACHING PETITIONER'S CREDIBILITY, THE
PROSECUTOR IN PETITIONER'S 1947 RAPE TRIAL WAS PERMITTED TO INTERROGATE
HIM ABOUT HIS PREVIOUS CRIMINAL RECORD.  PETITIONER ADMITTED FOUR
FELONY CONVICTIONS DURING THE PERIOD 1931-1940.  HE WAS FOUND GUILTY BY
THE JURY AND WAS SENTENCED TO A TERM OF 50 YEARS.  HE FILED A PETITION
FOR HABEAS CORPUS IN FEDERAL DISTRICT COURT ALLEGING THAT THE PREVIOUS
CONVICTIONS WERE CONSTITUTIONALLY INVALID UNDER GIDEON V. WAINWRIGHT,
372 U.S. 335, BECAUSE HE HAD BEEN DENIED THE ASSISTANCE OF COUNSEL. 
THE DISTRICT COURT DENIED RELIEF AND THE COURT OF APPEALS AFFIRMED,
STATING THAT THE "FACT THAT THERE ARE POSSIBLE INFIRMITIES IN THE
EVIDENCE DOES NOT NECESSARILY RAISE AN ISSUE OF CONSTITUTIONAL
PROPORTIONS WHICH WOULD REQUIRE REVERSAL."  HELD:  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
PROCEEDINGS.  PP. 480-485. 

440 F.2D 934, VACATED AND REMANDED. 

MR. JUSTICE STEWART, JOINED BY MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL, CONCLUDED THAT THE USE OF
CONVICTIONS CONSTITUTIONALLY INVALID UNDER GIDEON V. WAINWRIGHT, SUPRA,
TO IMPEACH A DEFENDANT'S CREDIBILITY DEPRIVES HIM OF DUE PROCESS OF
LAW.  PP. 480-483. 

MR. JUSTICE WHITE CONCLUDED THAT ALTHOUGH THE COURT OF APPEALS
ERRED, ON REMAND THAT COURT DOES NOT NECESSARILY HAVE TO SET
PETITIONER'S CONVICTION ASIDE.  THERE REMAIN UNRESOLVED ISSUES:
WHETHER PETITIONER WAS REPRESENTED BY COUNSEL AT HIS EARLIER TRIALS
AND, IF NOT, WHETHER HE WAIVED COUNSEL; AND THE POSSIBILITY OF A
FINDING OF HARMLESS ERROR, ALL OF WHICH SHOULD BE CONSIDERED IN THE
FIRST INSTANCE BY THE LOWER COURT.  P. 485. 

STEWART, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION, IN WHICH DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED.  WHITE,
J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 485.  BURGER,
C.J., FILED A DISSENTING OPINION, IN WHICH POWELL, J., JOINED, POST, P.
485.  BLACKMUN, J., FILED A DISSENTING OPINION, POST, P. 494. 
REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH BURGER, C.J., AND
BLACKMUN AND POWELL, JJ., JOINED, POST, P. 497. 

MR. JUSTICE STEWART ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR.
JUSTICE MARSHALL JOIN. 

THE PETITIONER, OTIS LOPER, WAS BROUGHT TO TRIAL IN A TEXAS CRIMINAL
COURT IN 1947 UPON A CHARGE OF STATUTORY RAPE.  THE ALLEGED VICTIM,
LOPER'S 8-YEAR-OLD STEPDAUGHTER, WAS THE ONLY WITNESS WHO IDENTIFIED
HIM AS THE PERPETRATOR OF THE CRIME.  THE SOLE WITNESS FOR THE DEFENSE
WAS LOPER HIMSELF, WHO TESTIFIED THAT HE HAD NOT ASSAULTED THE VICTIM
IN ANY WAY.  FOR THE PURPOSE OF IMPEACHING LOPER'S CREDIBILITY, THE
PROSECUTOR WAS PERMITTED ON CROSS-EXAMINATION TO INTERROGATE LOPER
ABOUT HIS PREVIOUS CRIMINAL RECORD.  IN RESPONSE TO THIS LINE OF
QUESTIONING, LOPER ADMITTED IN DAMAGING DETAIL TO FOUR PREVIOUS FELONY
CONVICTIONS DURING THE PERIOD 1931-1940, THREE IN MISSISSIPPI AND ONE
IN TENNESSEE.  /1/  AT THE CONCLUSION OF THE ONE-DAY TRIAL JURY FOUND
LOPER GUILTY AS CHARGED AND SENTENCED HIM TO A TERM OF 50 YEARS IN
PRISON. 

LOPER INITIATED THE PRESENT HABEAS CORPUS PROCEEDING IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS IN 1969.  HE
ALLEGED, AMONG OTHER THINGS, THAT THE PREVIOUS CONVICTIONS USED TO
IMPEACH HIS CREDIBILITY AT THE TRIAL WERE CONSTITUTIONALLY INVALID
UNDER GIDEON V. WAINWRIGHT, 372 U.S. 335, BECAUSE HE HAD BEEN DENIED
THE ASSISTANCE OF COUNSEL IN THE MISSISSIPPI AND TENNESSEE COURTS THAT
HAD CONVICTED HIM.  /2/  HIS SWORN TESTIMONY AT THE HABEAS CORPUS
HEARING CONFIRMED THESE ALLEGATIONS.  /3/  IN ADDITION, HE PRODUCED
COURT RECORDS TO CORROBORATE THIS TESTIMONY.  /4/  THE DISTRICT COURT
DENIED HABEAS CORPUS RELIEF, PLACING "LITTLE OR NO CREDENCE" IN LOPERS
TESTIMONY, AND HOLDING THAT IN ANY EVENT "THE QUESTION DOES NOT RISE TO
CONSTITUTIONAL STATURE AND IS NOT SUBJECT TO COLLATERAL ATTACK."  /5/ 

ON APPEAL, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT.  ALTHOUGH RECOGNIZING "THE FORCE OF
LOPER'S ARGUMENT TO THE EFFECT THAT SUCH CONVICTIONS MAY HAVE IMPAIRED
HIS CREDIBILITY IN THE MINDS OF THE JURY AS A WITNESS IN HIS OWN
BEHALF," THE APPELLATE COURT HELD THAT "THE USE OF SUCH CONVICTIONS AS
EVIDENCE FOR PURPOSES OF IMPEACHMENT WHICH GOES ONLY TO CREDIBILITY, IS
NOT NEARLY SO SERIOUS AS THE USE OF A CONVICTION FOR ENHANCEMENT, WHICH
MAY ADD YEARS OF IMPRISONMENT TO THE SENTENCE OF A DEFENDANT.  . . .
THE ISSUE PRESENTED RAISES AN EVIDENTIARY QUESTION.  THE FACT THAT
THERE ARE POSSIBLE INFIRMITIES IN THE EVIDENCE DOES NOT NECESSARILY
RAISE AN ISSUE OF CONSTITUTIONAL PROPORTIONS WHICH WOULD REQUIRE
REVERSAL."  440 F.2D 934, 937.  /6/ 

WE LIMITED OUR GRANT OF CERTIORARI TO A SINGLE CONSTITUTIONAL
QUESTION, WORDED AS FOLLOWS IN THE PETITION FOR CERTIORARI:  DOES THE
USE OF PRIOR, VOID CONVICTIONS FOR IMPEACHMENT PURPOSES DEPRIVE A
CRIMINAL DEFENDANT OF DUE PROCESS OF LAW WHERE THEIR USE MIGHT WELL
HAVE INFLUENCED THE OUTCOME OF THE CASE?  404 U.S. 821.  THIS IS A
RECURRING QUESTION THAT HAS RECEIVED CONFLICTING ANSWERS IN THE UNITED
STATES COURTS OF APPEALS.  /7/  IT IS A QUESTION THAT HAS ALSO DIVIDED
STATE APPELLATE COURTS.  /8/ 

THE STARTING POINT IN CONSIDERING THIS QUESTION IS, OF COURSE,
GIDEON V. WAINWRIGHT, 372 U.S. 335.  IN THAT CASE THE COURT UNANIMOUSLY
ANNOUNCED A CLEAR AND SIMPLE CONSTITUTIONAL RULE:  IN THE ABSENCE OF
WAIVER, A FELONY CONVICTION IS INVALID IF IT WAS OBTAINED IN A COURT
THAT DENIED THE DEFENDANT THE HELP OF A LAWYER.  /9/ 

THE COURT DEALT WITH A SEQUEL TO GIDEON IN BURGETT V. TEXAS, 389
U.S. 109.  THERE A TEXAS INDICTMENT CHARGING THE PETITIONER WITH
ASSAULT CONTAINED ALLEGATIONS OF PREVIOUS FELONY CONVICTIONS, THAT, IF
PROVED, WOULD HAVE INCREASED THE PUNISHMENT FOR ASSAULT UNDER THE STATE
RECIDIVIST STATUTES.  THE INDICTMENT WAS READ TO THE JURY AT THE
BEGINNING OF THE TRIAL.  RECORDS OF TWO OF THE PREVIOUS CONVICTIONS
WERE OFFERED IN EVIDENCE DURING THE COURSE OF THE TRIAL, AND IT
APPEARED THAT AT LEAST ONE OF THESE CONVICTIONS HAD BEEN OBTAINED IN
VIOLATION OF GIDEON.  IN REVERSING THE TEXAS JUDGMENT, THE COURT SAID: 

"TO PERMIT A CONVICTION OBTAINED IN VIOLATION OF GIDEON V.
WAINWRIGHT TO BE USED AGAINST A PERSON EITHER TO SUPPORT GUILT OR
ENHANCE PUNISHMENT FOR ANOTHER OFFENSE . . . IS TO ERODE THE PRINCIPLE
OF THAT CASE.  WORSE YET, SINCE THE DEFECT IN THE PRIOR CONVICTION WAS
DENIAL OF THE RIGHT TO COUNSEL, THE ACCUSED IN EFFECT SUFFERS ANEW FROM
THE DEPRIVATION OF THAT . . . RIGHT."  389 U.S.,AT 115. 

EARLIER THIS TERM WE HAD BEFORE US A CASE IN WHICH IT APPEARED THAT
PREVIOUS CONVICTIONS OBTAINED IN VIOLATION OF GIDEON HAD PLAYED A PART
IN THE DETERMINATION OF THE LENGTH OF A CONVICTED DEFENDANT'S PRISON
SENTENCE.  UNITED STATES V. TUCKER, 404 U.S. 443.  WE THERE RULED THAT
THE COURT OF APPEALS FOR THE NINTH CIRCUIT HAD BEEN CORRECT IN HOLDING
THAT THE TEACHING OF BURGETT REQUIRED A REMAND OF THE CASE TO THE TRIAL
COURT FOR RESENTENCING. 

THE TUCKER CASE INVOLVED ONLY THAT ASPECT OF BURGETT THAT PROHIBITS
THE USE OF INVALID PRIOR CONVICTIONS TO "ENHANCE PUNISHMENT."  THE CASE
NOW BEFORE US INVOLVES THE USE OF SUCH CONVICTIONS "TO SUPPORT GUILT." 
/10/  FOR THE ISSUE OF INNOCENCE OR GUILT IN THIS CASE TURNED ENTIRELY
ON WHETHER THE JURY WOULD BELIEVE THE TESTIMONY OF AN 8-YEAR-OLD GIRL
OR THAT OF LOPER.  AND THE SOLE PURPOSE FOR WHICH THE PRIOR CONVICTIONS
WERE PERMITTED TO BE USED WAS TO DESTROY THE CREDIBILITY OF LOPER'S
TESTIMONY IN THE EYES OF THE JURY.  /11/ 

UNLESS BURGETT IS TO BE FORSAKEN, THE CONCLUSION IS INESCAPABLE THAT
THE USE OF CONVICTIONS CONSTITUTIONALLY INVALID UNDER GIDEON V.
WAINWRIGHT TO IMPEACH A DEFENDANT'S CREDITIBILITY DEPRIVES HIM OF DUE
PROCESS OF LAW.  /12/  WE CAN PUT THE MATTER NO BETTER THAN IN THE
WORDS OF THE COURT OF APPEALS FOR THE FIRST CIRCUIT: 

     "WE CONCLUDE THAT THE BURGETT RULE AGAINST USE OF UNCOUNSELED

  CONVICTIONS 'TO PROVE GUILT' WAS INTENDED TO PROHIBIT THEIR USE

  'TO IMPEACH CREDIBILITY,' FOR THE OBVIOUS PURPOSE AND LIKELY

  EFFECT OF IMPEACHING THE DEFENDANT'S CREDIBILITY IS TO IMPLY, IF

  NOT PROVE, GUILT.  EVEN IF SUCH PROHIBITION WAS NOT ORIGINALLY

  CONTEMPLATED, WE FAIL TO DISCERN ANY DISTINCTION WHICH WOULD

  ALLOW SUCH INVALID CONVICTIONS TO BE USED TO IMPEACH

  CREDIBILITY.  THE ABSENCE OF COUNSEL IMPAIRS THE RELIABILITY OF

  SUCH CONVICTIONS JUST AS MUCH WHEN USED TO IMPEACH AS WHEN USED

AS DIRECT PROOF OF GUILT."  GILDAY V. SCAFATI, 428 F.2D 1027,

  1029. 

A DISSENTING OPINION FILED TODAY SUGGESTS THAT OUR DECISION PRESSES
THE "SOUND DOCTRINE OF RETROACTIVITY BEYOND THE OUTER LIMITS OF ITS
LOGIC."  ON THE CONTRARY, OUR DECISION IN THIS CASE FOLLOWS DIRECTLY
FROM THE RATIONALE UNDER WHICH GIDEON V. WAINWRIGHT, SUPRA, WAS GIVEN
RETROACTIVE APPLICATION.  WE HAVE SAID THAT THE PRINCIPLE ESTABLISHED
IN GIDEON GOES TO "THE VERY INTEGRITY OF THE FACT-FINDING PROCESS" IN
CRIMINAL TRIALS, AND THAT A CONVICTION OBTAINED AFTER A TRIAL IN WHICH
THE DEFENDANT WAS DENIED THE ASSISTANCE OF A LAWYER "LACKED
RELIABILITY."  LINKLETTER V. WALKER, 381 U.S. 618, 639 AND N. 20. 
LOPER HAS "SUFFERED ANEW" FROM THIS UNCONSTITUTIONAL DEPRIVATION,
BURGETT V. TEXAS, SUPRA, REGARDLESS OF WHETHER THE PRIOR CONVICTIONS
WERE USED TO IMPEACH HIM BEFORE OR AFTER THE GIDEON DECISION.  IT WOULD
SURELY BE UNREASONABLE, AS ONE DISSENTING OPINION SUGGESTS, TO EXPECT
THE JUDGE AT LOPER'S TRIAL TO HAVE ANTICIPATED GIDEON, JUST AS IT WOULD
HAVE BEEN UNREASONABLE TO HAVE EXPECTED THE JUDGE AT GIDEON'S TRIAL TO
HAVE FORESEEN OUR LATER DECISION IN THAT CASE.  BUT A NECESSARY RESULT
OF APPLYING ANY DECISION RETROACTIVELY IS TO INVALIDATE RULINGS MADE BY
TRIAL JUDGES THAT WERE CORRECT UNDER THE LAW PREVAILING AT THE TIME THE
JUDGES MADE THEM.  /13/  IF THE RETROACTIVITY OF GIDEON IS "SOUND,"
THEN THIS CASE CANNOT BE DECIDED UNDER THE ILL-STARRED AND DISCREDITED
DOCTRINE OF BETTS V. BRADY, 316 U.S. 455. 

THE JUDGMENT BEFORE US IS SET ASIDE, AND THE CASE IS REMANDED TO THE
COURT OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  "Q.  DURING THE PAST TEN YEARS HOW MANY TIMES HAVE YOU BEEN
INDICTED AND CONVICTED IN THIS STATE OR ANY OTHER STATE FOR A FELONY? 

"A.  ABOUT TWICE IN THE PAST TEN YEARS. 

"Q.  HOW ABOUT ON MAY 7TH, 1940, WEREN'T YOU ARRESTED . . . 

"MR. LETTS:  YOUR HONOR, I OBJECT TO THAT, AS TO HIS BEING ARRESTED,
AS THAT IS NOT ADMISSIBLE IN THIS CASE. 

"THE COURT:  WELL, LET HIM FINISH THE QUESTION, MR. LETTS. 

"Q.  ALL RIGHT, ON MAY 7TH, 1940, WHAT WERE YOU INDICTED AND
CONVICTED FOR? 

"A.  BURGLARY. 

"Q.  WHERE WAS THAT? 

"A.  CARTHAGE, MISSISSIPPI. 

"Q.  WHAT DID YOU GET FOR THAT? 

"A.  FIVE YEARS IN THE PENITENTIARY. 

"Q.  ON JANUARY 15TH, 1935, WHAT WERE YOU INDICTED AND CONVICTED FOR
THEN? 

"A.  BURGLARY. 

"MR. LETTS:  WE OBJECT, YOUR HONOR, AS THAT HAS BEEN OVER TEN
YEARS. 

        .          .          .          . 

"Q.  WHAT WERE YOU INDICTED, TRIED AND CONVICTED FOR THEM ON JANUARY
15TH, 1935, IN BRUSHY MOUNTAIN PARISH, PETROS, TENNESSEE? 

"A.  BURGLARY. 

"Q.  WHAT DID YOU GET FOR THAT? 

"A.  FOUR YEARS. 

"Q.  HOW ABOUT OCTOVER 27TH, 1931, WHAT . . . 

"MR. LETTS:  YOUR HONOR, WE OBJECT TO THAT AND ASK THE COURT TO
INSTRUCT THE JURY NOT TO CONSIDER IT.  THAT REACHES WAY BACK TO 1931
AND THE COURT KNOWS IT WOULD PREJUDICE AND INFLAME THE MINDS OF THE
JURY IN THIS CASE. 

"THE COURT:  OBJECTION OVER-RULED. 

        .          .          .         . 

"Q.  WHERE WERE YOU ARRESED ON NOVEMBER 29TH, 1934? 

"A.  IN CHATTANOOGA, TENNESSEE. 

"Q.  WHAT ABOUT OCTOBER 27TH, 1931, WHAT WERE YOU CONVICTED FOR IN
PARCHMAN, MISSISSIPPI, THEN? 

"A.  BURGLARY. 

"Q.  WHAT DID YOU GET FOR THAT? 

"A.  SIX MONTHS, I THINK, 

"Q.  THERE HAVE BEEN SO MANY OFFENSES YOU HAVE COMMITTED THAT YOU
CAN'T REMEMBER THEM STRAIGHT, CAN YOU? 

"MR. LETTS:  WE OBJECT TO THAT REMARK, YOUR HONOR. 

"THE COURT:  OBJECTION SUSTAINED. 

"Q.  IT WAS FOR BURGLARY IN 1931? 

"A.  YES. 

"Q.  HAVE YOU ALWAYS GONE BY THE NAME OF OTIS LOPER? 

"A.  NOT ALWAYS. 

"Q.  WHAT OTHER NAMES HAVE YOU GONE BY? 

"A.  MILTON CUMMINGS. 

"Q.  THAT WAS IN MISSISSIPPI, WASN'T IT? 

"A.  YES SIR. 

"Q.  WHAT WERE YOU INDICTED AND TRIED FOR ON THAT CASE IN
MISSISSIPPI IN 1932? 

"A.  BURGLARY. 

"Q.  HOW MUCH TIME DID YOU GET ON THAT CONVICTION? 

"A.  TWO YEARS. 

"Q.  AND THAT WAS UNDER THE NAME OF MILTON CUMMINGS? 

"A.  YES. 

"Q.  AND THAT IS 4 TIMES THAT YOU HAVE BEEN CONVICTED OF BURGLARY, A
FELONY? 

"A.  YES. 

"MR. DUGGAN:  THAT'S ALL, NO MORE QUESTIONS." 

/2/  LOPER'S PETITION WAS ORIGINALLY DISMISSED BY THE DISTRICT COURT
BUT THE COURT OF APPEALS VACATED THE DISMISSAL AND REMANDED FOR AN
EVIDENTIARY HEARING ON THE QUESTION WHETHER LOPER HAD BEEN DEPRIVED OF
HIS RIGHT TO APPEAL FROM THE TEXAS JUDGMENT OF CONVICTION.  383 F.2D
400.  ON REMAND, THE DISTRICT JUDGE, NOTING THAT LOPER HAD FILED
NUMEROUS HABEAS CORPUS PETITIONS OVER A PERIOD OF 20 YEARS, APPOINTED
COUNSEL TO REPRESENT LOPER AND DIRECTED HIM TO RAISE ANY POINTS THAT
"CONCEIVABLY MIGHT BE RAISED IN HIS BEHALF," IN ORDER THAT A SINGLE
EVIDENTIARY HEARING COULD SERVE TO PUT AN END TO POSTCONVICTION
LITIGATION IN LOPER'S CASE.  LOPER, WITH THE ASSISTANCE OF COUNSEL,
THEN ADVANCED SIX CLAIMS, AND THE EVIDENTIARY HEARING WAS DIRECTED TO
RESOLVING ALL SIX CONTENTIONS.  THE CLAIM AT ISSUE HERE HAD NOT BEEN
RAISED IN ANY OF LOPER'S PREVIOUS PETITIONS. 

/3/  "Q.  WERE YOU CONVICTED IN 1931 OF BURGLARY IN SCOTT COUNTY,
MISSISSIPPI? 

"A.  YES , SIR. 

"Q.  HOW OLD WERE YOU AT THIS TIME? 

"A.  I DON'T REMEBER, BUT I BELIEVE I WAS AROUND 17 YEARS, SOMETHING
AROUND THAT AGE.  I'M NOT FOR SURE. 

"Q.  WERE YOU REPRESENTED BY AN ATTORNEY IN CONNECTION WITH THAT
PROCEEDING? 

"A.  NO, SIR, I DIDN'T HAVE AN ATTORNEY. 

"Q.  WERE YOU ADVISED THAT YOU HAD A RIGHT TO AN ATTORNEY WHETHER
YOU COULD AFFORD ONE OR NOT? 

"A.  NO, SIR. 

"Q.  DID YOU KNOW THAT YOU WERE ENTITLED TO ONE WHETHER YOU COULD
AFFORD ONE OR NOT? 

"A.  NO, SIR. 

"Q.  DID YOU INFORM THE COURT THAT YOU DID NOT WANT TO BE
REPRESENTED BY AN AN ATTORNEY? 

"A.  NO, SIR. 

"Q.  WERE YOU CONVICTED IN THAT PROCEEDING? 

"A.  YES, SIR. 

"Q.  WERE YOU CONVICTED, MR. LOPER, OF BURGLARY IN 1940 IN LEAKE
COUNTY, MISSISSIPPI? 

"A.  YES, SIR. 

"Q.  HOW OLD WERE YOU AT THE TIME THAT OCCURRED? 

"A.  I BELIEVE I WAS ABOUT 25 OR 26, I DON'T REMEMBER FOR SURE. 

"Q.  LET ME ASK YOU ONE MORE QUESTION ABOUT THAT SCOTT COUNTY,
MISSISSIPPI, CONVICTION.  DID YOU PLEAD GUILTY OR NOT GUILTY? 

"A.  I PLEAD GUILTY. 

"Q.  WERE YOU SENTENCED TO A TERM IN PRISON? 

"A.  YES, SIR. 

"Q.  ALL RIGHT, SIR.  NOW, IN CONNECTION WITH THE 1940 CONVICTION,
WERE YOU REPRESENTED BY AN ATTORNEY? 

"A.  NO, SIR. 

"Q.  AT ANY STAGE OF THE PROCEEDINGS? 

"A.  NO, SIR.     "Q.  WERE YOU ADVISED THAT YOU HAD A RIGHT TO AN
ATTORNEY WHETHER YOU COULD AFFORD ONE OR NOT? 

"A.  NO, SIR. 

"Q.  COULD YOU IN FACT AFFORD ONE? 

"A.  I DON'T BELIEVE I COULD HAVE THEN. 

"Q.  WHAT ABOUT 1931, THE CONVICTION IN SCOTT COUNTY, MISSISSIPPI,
COULD YOU HAVE AFFORDED AN ATTORNEY? 

"A.  I COULDN'T HAVE, NO, SIR. 

"Q.  DID YOU KNOW IN CONNECTION WITH THE 1940 PROCEEDING THAT YOU
WERE ENTITLED TO BE REPRESENTED BY COUNSEL WHETHER YOU COULD AFFORD IT
OR NOT? 

"A.  NO, SIR. 

"Q.  DID YOU INFORM THE COURT THAT YOU DID NOT WANT TO BE
REPRESENTED BY AN ATTORNEY? 

"A.  NO, SIR. 

"Q.  WAS THE 1940 PROCEEDING IN LEAKE COUNTY, MISSISSIPPI, DID YOU
PLEAD GUILTY OR NOT GUILTY? 

"A.  NOT GUILTY. 

"Q.  WAS A TRIAL HELD? 

"A.  YES, SIR. 

"Q.  WHO CONDUCTED THE DEFENSE IN THAT TRIAL? 

"A.  WELL, THERE WASN'T ANYBODY.  I JUST DIDN'T KNOW WHAT TO ASK THE
PEOPLE.  I DIDN'T KNOW ANYTHING ABOUT HOW TO. 

"Q.  DID YOU CONDUCT YOUR OWN TRIAL? 

"A.  AS FAR AS IT WAS CONDUCTED, YES, SIR. 

"Q.  WHY DID YOU ATTEMPT TO DO SO YOURSELF? 

"A.  WELL, I DIDN'T HAVE AN ATTORNEY, AND NOBODY TO HELP ME.  I
DIDN'T WANT TO PLEAD GUILTY TO IT." 

/4/  A CERTIFIED RECORD OF THE 1940 PROCEEDING IN LEAKE COUNTY,
MISSISSIPPI, RECITED THAT LOPER APPEARED "IN HIS OWN PROPER PERSON."  A
CERTIFIED COPY OF THE 1935 PROCEEDING IN HAMILTON COUNTY, TENNESSEE,
RECITED THAT LOPER APPEARED "IN PERSON."  A CERTIFIED COPY OF THE 1931
PROCEEDING IN SCOTT COUNTY, MISSISSIPPI, RECITED SIMPLY THAT LOPER AND
HIS CODENFENDANTS "ENTERED PLEAS OF GUILTY, AS CHARGED IN THE
INDICTMENT."  NO RECORD WAS INTRODUCED OF THE 1932 CONVICTION IN
MISSISSIPPI. 

/5/  THE MEMORANDUM AND ORDER OF THE DISTRICT COURT ARE UNREPORTED. 

/6/  A DISSENTING OPINION, POST, AT 502, IMPLIES THAT THE DISTRICT
COURT FOUND THAT THE PETITIONER DID NOT MEET HIS BURDEN OF PROVING THAT
HE HAD NOT WAIVED HIS RIGHT TO COUNSEL IN THE MISSISSIPPI AND TENNESSEE
COURTS.  BUT NO SUCH FINDING APPEARS IN THE RECORD.  THE DISTRICT COURT
DID SAY THAT "THERE IS NO EVIDENCE OTHER THAN PETITIONER'S OWN
STATEMENT THAT HE WAS NOT REPRESENTED BY COUNSEL AT THE TIME OF HIS
PRIOR CONVICTIONS, WHICH EVIDENCE, AS STATED ABOVE, I DECLINE TO ACCEPT
AS CREDIBLE."  THIS STATEMENT IS WHOLLY INCORRECT, FOR LOPER DID
INTRODUCE DOCUMENTARY EVIDENCE TO CORROBORATE HIS TESTIMONY THAT HE HAD
NOT BEEN REPRESENTED BY COUNSEL ON AT LEAST TWO OF HIS PRIOR
CONVICTIONS.  SEE N. 4, SUPRA.  NOWHERE IN THE DISTRICT COURT'S OPINION
IS THERE ANY FINDING OF FACT AS TO WHETHER LOPER MIGHT HAVE WAIVED
COUNSEL.  AND THE FACT THAT THE CHALLENGED CONVICTIONS OCCURRED AT A
TIME WHEN, UNDER OUR DECISIONS, STATE COURTS WERE UNDER NO
CONSTITUTIONAL OBLIGATION TO PROVIDE LAWYERS TO INDIGENT DEFENDANTS IN
ALL FELONY CASES, WOULD MAKE ANY SUCH FINDING HIGHLY UNREALISTIC, IN
THE FACE OF THE DOCUMENTARY EVIDENCE AND THE PETITIONER'S
UNCONTRADICTED TESTIMONY.  FOR, AT THE TIME OF THE PETITIONER'S
PREVIOUS CONVICTIONS, THERE WAS NO KNOWN CONSTITUTIONAL RIGHT TO BE
"WAIVED." 

MOREOVER, THE JUDGMENT THAT WE REVIEW TODAY IS NOT THAT OF THE
DISTRICT COURT, BUT OF THE COURT OF APPEALS.  THAT COURT STATED: 

"THE CONVICTIONS MENTIONED HAVE BEEN OF RECORD FOR A NUMBER OF
YEARS, YET THE RECORD BEFORE US DOES NOT DISCLOSE THAT ANY ATTACK HAS
EVER BEEN MADE UPON THOSE CONVICTIONS.  EXCEPT FOR THE ASSERTIONS OF
LOPER THE RECORD FAILS TO FURNISH ANY CONCLUSIVE INFORMATION AS TO THE
FACTS AND CIRCUMSTANCES SURROUNDING HIS FORMER CONVICTIONS.  SO FAR AS
THE RECORD BEFORE US REVEALS, THERE ARE OUTSTANDING, UNCHALLENGED,
STATE COURT CONVICTIONS OF FELONIES IN THE STATES OF MISSISSIPPI AND
TENNESSEE.  . . . (IF THE CONVICTIONS POSSESSED THE INFIRMITIES WHICH
LOPER CLAIMS, HE HAS FAILED TO MAKE ANY EFFORT TO SET THEM ASIDE FOR
OVER 30 YEARS.  NO ONE ELSE COULD HAVE DONE SO.  SURELY SUCH AN ATTACK
WAS AVAILABLE TO HIM IN VIEW OF THE RETROACTIVE APPLICATION OF THE
GIDEON DECISION WHICH WAS DECIDED OVER SIX YEARS PRIOR TO THE HEARING
UNDER REVIEW."  440 F.2D, AT 937. 

BUT DESPITE THESE OBSERVATIONS, THE COURT OF APPEALS, PERHAPS
RECOGNIZING THE ERROR IN THE STATEMENT OF THE DISTRICT COURT QUOTED
ABOVE, DID NOT REST ITS DECISION ON A FINDING THAT THE PETITIONER HAD
FAILED TO MEET HIS BURDEN OF PROVING THE INVALIDITY OF THE PRIOR
CONVICTIONS.  IT REACHED THE MERITS OF THE LEGAL QUESTION INVOLVED, AND
WE GRANTED CERTIORARI TO REVIEW THAT DECISION.  THERE IS THUS NO BASIS
IN THE RECORD UPON WHICH WE MAY EITHER DISMISS THIS CASE OR AFFIRM THE
DECISION BELOW ON THE GROUND THAT THE PETITIONER DID NOT MEET HIS
BURDEN OF PROVING THAT THE PRIOR CONVICTIONS WERE INVALID.  SEE BURGETT
V. TEXAS, 389 U.S. 109, 114-115; LOSIEAU V, SIGLER, 406 F.2D 795, 803;
WILLIAMS V. COINER, 392 F.2D 210, 212-213. 

THE DISSENTING OPINIONS RELIES UPON OUR DECISION LAST TERM IN
KITCHENS V. SMITH, 401 U.S. 847.  YET WE HELD IN THAT CASE THAT THE
PETITIONER ON COLLATERAL REVIEW HAD SUFFICIENTLY "PROVED HE WAS WITHOUT
COUNSEL DUE TO INDIGENCY AT THE TIME OF HIS (1944) CONVICTION," EVEN
THOUGH, UNLIKE THE PRESENT CASE, THE PETITIONER "INTRODUCED NO EVIDENCE
OTHER THAN HIS OWN TESTIMONY."  ID., AT 849. 

/7/  COMPARE THE DECISIONS IN THIS CASE AND IN WALKER V. FOLLETTE,
443 F.2D 167 (CA2 1971), WITH GILDAY V. SCAFATI, 428 F.2D 1027 (CA1
1970); TUCKER V. UNITED STATES, 431 F.2D 1292 (CA9 1970); AND HOWARD V.
CRAVEN, 446 F.2D 586 (CA9 1971). 

/8/  SIMMONS V. STATE, 456 S.W.2D 66 (CT. CRIM. APP. TEX. 1970),
HOLDS THAT PRIOR CONVICTIONS OBTAINED WITHOUT THE BENEFIT OF COUNSEL
MAY NEVERTHELESS BE USED FOR THE PURPOSE OF IMPEACHMENT.  MOST REPORTED
STATE DECISIONS, HOWEVER, HOLD THE CONTRARY.  SEE SPAULDING V. STATE,
481 P.2D 389 (ALASKA 1971); IN RE DABNEY, 71 CAL.2D 1, 452 P.2D 924
(1969); JOHNSON V. STATE, 9 MD.APP.  166, 263 A.2D 232 (1970); WHITE V.
STATE, 11 MD.APP.  423, 274 A.2D 671 (1971); SUBILOSKY V. COMMONWEALTH,
-- MASS.-- , 265 N;E.2D 80 (1970) (SEMBLE). 

/9/  THIS CONSTITUTIONAL RULE IS WHOLLY RETROACTIVE.  PICKELSIMER V.
WAINWRIGHT, 375 U.S. 2; KITCHENS V. SMITH, 401 U.S. 847. 

/10/  UNDER TEXAS LAW AT THE TIME, THE JURY, UPON FINDING LOPER
GUILTY, WAS AUTHORIZED IN ITS ABSOLUTE AND UNREVIEWABLE DISCRETION TO
IMPOSE ANY PUNISHMENT FROM FIVE YEARS IN PRISON TO DEATH IN THE
ELECTRIC CHAIR.  TEXAS PEN.  CODE, ART. 1189 (1948).  THUS, BRINGING
THE PRIOR CONVICTIONS TO THE ATTENTION OF THE JURY MAY WELL ALSO HAVE
SERVED TO ENHANCE LOPER'S PUNISHMENT. 

/11/  THIS IS NOT A CASE WHERE THE RECORD OF A PRIOR CONVICTION WAS
USED FOR THE PURPOSE OF DIRECTLY REBUTTING A SPECIFIC FALSE STATEMENT
MADE FROM THE WITNESS STAND.  CF. WALKER V. FOLLETTE, 443 F.2D 167, AND
SEE HARRIS V. NEW YORK, 401 U.S. 222; WALDER V. UNITED STATES, 347 U.S.
62.  THE PREVIOUS CONVICTIONS WERE USED, RATHER, SIMPLY IN AN EFFORT TO
CONVICT LOPER BY BLACKENING HIS CHARACTER AND THUS DAMAGING HIS GENERAL
CREDIBILITY IN THE EYES OF THE JURY. 

THAT A RECORD OF PRIOR CONVICTIONS MAY ACTUALLY DO MORE THAN SIMPLY
IMPEACH A DEFENDANT'S CREDIBILITY HAS BEEN OFTEN NOTED.  SEE, E.G., C.
MCCORMICK, EVIDENCE SEC. 43, P. 93 (1954): 

"THE SHARPEST AND MOST PREJUDICIAL IMPACT OF THE PRACTICE OF
IMPEACHMENT BY CONVICTION . . . IS UPON ONE PARTICULAR TYPE OF WITNESS,
NAMELY, THE ACCUSED IN A CRIMINAL CASE WHO ELECTS TO TAKE THE STAND. 
IF THE ACCUSED IS FORCED TO ADMIT THAT HE HAS A 'RECORD' OF PAST
CONVICTIONS, PARTICULARLY IF THEY ARE FOR CRIMES SIMILAR TO THE ONE ON
TRIAL, THE DANGER IS OBVIOUS THAT THE JURY, DESPITE INSTRUCTIONS, WILL
GIVE MORE HEED TO THE PAST CONVICTIONS AS EVIDENCE THAT THE ACCUSED IS
THE KIND OF MAN WHO WOULD COMMIT THE CRIME ON CHARGE, OR EVEN THAT HE
OUGHT TO BE PUT AWAY WITHOUT TOO MUCH CONCERN WITH PRESENT GUILT, THAN
THEY WILL TO ITS LEGITIMATE BEARING ON CREDIBILITY." 

/12/  IN THE CIRCUMSTANCES OF THIS CASE THERE IS LITTLE ROOM FOR A
FINDING OF HARMLESS ERROR, IF, AS APPEARS ON THE RECORD NOW BEFORE US,
LOPER WAS UNREPRESENTED BY COUNSEL AND DID NOT WAIVE COUNSEL AT THE
TIME OF THE EARLIER CONVICTIONS.  CF. SUBILOSKY V. MOORE, 443 F.2D 334;
TUCKER V. UNITED STATES, 431 F.2D 1292; GILDAY V. SCAFATI, 428 F.2D
1027. 

/13/  THE REASONING OF THAT DISSENTING OPINION WOULD DICTATE THAT THE
RULE IN BURGETT MUST NOT BE GIVEN RETROACTIVE APPLICATION, AT LEAST TO
CASES WHERE THE SENTENCE WAS IMPOSED PRIOR TO GIDEON.  YET, BY OUR
DISPOSITION OF BATES V. NELSON, 393 U.S. 16, WHERE WE VACATED AND
REMANDED IN LIGHT OF BURGETT A DENIAL OF HABEAS CORPUS FOLLOWING A 1957
CONVICTION, WE INDICATED THAT BURGETT IS RETROACTIVE IN ITS APPLICATION
WITHOUT REGARD TO WHETHER THE USE OF THE PRIOR CONVICTIONS WAS MADE
PRIOR TO OR AFTER GIDEON.  EVERY FEDERAL COURT THAT HAS CONSIDERED THE
QUESTION HAS HELD BURGETT RETROACTIVE, AND NONE HAS MADE THE
DISTINCTION SUGGESTED BY THE DISSENTING OPINION.  SEE, E.G., WALKER V.
FOLLETTE, 443 F.2D 167 (CA2 1971); LOSIEAU V. SIGLER, 406 F.2D 795 (CA8
1969); TUCKER V. CRAVEN, 421 F.2D 139 (CA9 1970); OSWALD V. CROUSE, 420
F.2D 373 (CA10 1969). 

MR. JUSTICE WHITE, CONCURRING IN THE RESULT. 

THE COURT OF APPEALS AFFIRMED THE DENIAL OF LOPER'S PETITION FOR
HABEAS CORPUS, REASONING THAT THE USE OF INVALID PRIOR CONVICTIONS TO
IMPEACH A DEFENDANT IN A CRIMINAL CASE DOES NOT RAISE AN ISSUE OF
CONSTITUTIONAL PROPORTIONS EVEN THOUGH SO USING THOSE CONVICTIONS MIGHT
WELL HAVE INFLUENCED THE OUTCOME OF THE CASE.  IT WAS ON THAT ISSUE
THAT WE GRANTED CERTIORARI; AND AS OUR PAST CASES NOW STAND, I AGREE
WITH MR. JUSITCE STEWART THAT THE COURT OF APPEALS' REASONS FOR
AFFIRMING THE DISTRICT COURT WERE ERRONEOUS.  THIS JUDGMENT, HOWEVER,
DOES NOT NECESSARILY MEAN THAT LOPER'S CONVICTION MUST BE SET ASIDE. 
THERE REMAIN ISSUES, UNRESOLVED BY THE COURT OF APPEALS, AS TO WHETHER
THE CHALLENGED PRIOR TO CONVICTIONS WERE LEGALLY INFIRM:  WAS LOPER
REPRESENTED BY COUNSEL AT THE TIME OF THE EARLIER CONVICTIONS; IF NOT,
DID HE WAIVE COUNSEL?  THESE MATTERS ARE BEST CONSIDERED IN THE FIRST
INSTANCE BY THE COURT OF APPEALS.  THE SAME IS TRUE WITH RESPECT TO THE
LEGAL SIGNIFICANCE OF THE LACK OF PROOF WITH RESPECT TO THE VALIDITY OF
ONE OR MORE OF THE PRIOR CONVICTIONS USED FOR IMPEACHMENT PURPOSES AT
LOPER'S TRIAL.  IN THIS CONNECTION, I DO NOT UNDERSTAND OUR PRIOR
DECISIONS TO HOLD THAT THERE IS NO ROOM IN CASES SUCH AS THIS FOR A
FINDING OF HARMLESS ERROR; AND IF THIS CASE IS ULTIMATELY TO TURN ON
WHETHER THERE WAS HARMLESS ERROR OR NOT, I WOULD PREFER TO HAVE THE
INITIAL JUDGMENT OF THE LOWER COURT. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE POWELL JOINS,
DISSENTING. 

IN 1942 THIS COURT, IN DECIDING BETTS V. BRADY, 316 U.S. 455, HELD
THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT CALL
FOR THE SETTING ASIDE OF A ROBBERY CONVICTION THAT HAD BEEN ENTERED
AGAINST AN INDIGENT DEFENDANT WHOSE REQUEST FOR APPOINTED COUNSEL HAD
BEEN DENIED BY THE STATE TRIAL COURT.  BETTS WAS OVERRULED IN 1963 BY
GIDEON V. WAINWRIGHT, 372 U.S. 335.  LOPER'S TRIAL FOR RAPE WAS HELD
FIVE YEARS AFTER BETTS AND 16 YEARS BEFORE GIDEON.  YET THE COURT TODAY
HOLDS THAT AN ERROR OF CONSTITUTIONAL MAGNITUDE OCCURRED WHEN THE JUDGE
PRESIDING AT LOPER'S TRIAL FAILED TO MAKE, ON HIS OWN MOTION, AN
EVIDENTIARY RULING THAT WOULD HAVE BEEN INCONSISTENT BOTH WITH STATE
LAW AND WITH THE UNITED STATES CONSTITUTION AS THEN EXPLICITLY
INTERPRETED BY THIS COURT.  I DISSENT. 

 (1) 

THREE WITNESSES WERE CALLED AT LOPER'S 1947 TRIAL.  HIS EIGHT-YEAR
OLD STEPDAUGHTER TESTIFIED THAT LOPER RAPED HER ON AUGUST 9, 1947.  A
PHYSICIAN GAVE TESTIMONY CORROBORATING THAT THE CHILD HAD BEEN RAPED. 
LOPER HIMSELF DENIED HAVING COMMITTED THE ACT, BUT ADMITTED THAT THERE
WAS A PERIOD OF TIME DURING THE DAY IN QUESTION WHEN HE WAS AT HOME
ALONE WITH HIS STEPDAUGHTER AND HIS FOUR-MONTH-OLD BABY BOY; HE FURTHER
ADMITTED ON CROSS-EXAMINATION THAT HIS STEPDAUGHTER WAS, AS FAR AS HE
KNEW, A TRUTHFUL CHILD. 

UNDER FURTHER CROSS-EXAMINATION, LOPER ADMITTED TO FOUR PRIOR
BURGLARY CONVICTIONS ENTERED AGAINST HIM IN 1931, 1932, 1935, AND 1940,
RESPECTIVELY.  AT THE 1969 HABEAS CORPUS PROCEEDING HERE UNDER REVIEW,
LOPER INTRODUCED COURT RECORDS RELATING TO THREE OF THESE BURGLARY
CONVICTIONS AND GAVE TESTIMONY RELATING TO TWO OF THOSE THREE.  THE
EVIDENCE PRESENTED TO THE DISTRICT COURT WITH RESPECT TO THE FOUR
CONVICTIONS MAY BE SUMMARIZED AS FOLLOWS: 

     (A) THE COURT RECORDS FOR THE 1931 CONVICTION INDICATED ONLY

  THAT LOPER PLEADED GUILTY UPON BEING ARRAIGNED AND THAT A

  SIX-MONTH SENTENCE WAS IMPOSED NINE DAYS LATER.  LOPER TESTIFIED

  BEFORE THE DISTRICT COURT THAT HE WAS NOT REPRESENTED BY AN

ATTORNEY IN CONNECTION WITH THESE 1931 PROCEEDINGS; THAT HE COULD

  NOT THEN HAVE AFFORDED PRIVATE COUNSEL; AND THAT HE NEVER

  INFORMED THE TRIAL COURT THAT HE DID NOT WANT TO BE REPRESENTED

  BY COUNSEL. 

      (B) LOPER INTRODUCED NO COURT RECORD AND GAVE NO TESTIMONY AT

  ALL WITH RESPECT TO HIS 1932 CONVICTION. 

 (C) LOPER GAVE NO TESTIMONY WITH RESPECT TO HIS 1935

CONVICTION, BUT THE COURT RECORD OF THAT CONVICTION APPEARS ON

  ITS FACE TO SUGGEST THAT HE WAS REPRESENTED BY COUNSEL:  "CAME

  THE ATTORNEY GENERAL AND THE DEFENDANT IN PERSON, AND THIS CASE

  WAS TRIED . . . BEFORE THE COURT AND THE . . . JURY . . . (WHOSE

  MEMBERS,) HAVING HEARD THE PROOF, ARGUMENTS OF COUNSEL AND THE

  CHARGE OF THE COURT(,) ON OATH SAY DEFENDANT IS GUILTY . . . . " 

     (D) THE COURT RECORD OF LOPER'S 1940 CONVICTION RECITED THAT

  LOPER APPEARED "IN HIS OWN PROPER PERSON."  LOPER TESTIFIED

  BEFORE THE DISTRICT COURT THAT HE DID NOT HAVE COUNSEL AT HIS

 1940 TRIAL; THAT HE DID NOT "BELIEVE" HE COULD THEN HAVE AFFORDED

  PRIVATE COUNSEL; AND THAT HE NEVER INFORMED THE STATE COURT THAT

  HE DID NOT WANT TO BE REPRESENTED BY COUNSEL. 

EVEN IF WE, UNLIKE THE DISTRICT COURT, /1/  TREAT AS ABSOLUTELY TRUE
EVERYTHING TO WHICH LOPER TESTIFIED AT THE HABEAS CORPUS HEARING, THERE
IS NO BASIS ON WHICH WE CAN CONCLUDE THAT HE WAS NOT REPRESENTED BY
COUNSEL IN THE PROCEEDINGS LEADING TO HIS 1932 AND 1935 CONVICTIONS. 
WITH RESPECT TO THE 1940 CONVICTION, IT SURELY CANNOT BE SAID THAT
LOPER, THROUGH HIS TESTIMONY THAT HE DOES NOT NOW "BELIEVE" THAT HE
THEN COULD HAVE AFFORDED PRIVATE COUNSEL, MET HIS "BURDEN OF PROVING
HIS INABILITY AT THAT TIME TO HIRE AN ATTORNEY."  KITCHENS V. SMITH,
401 U.S. 847, 848 (1971).  THERE IS NO BASIS, THEN, FOR A RETROACTIVE
APPLICATION OF GIDEON V. WAINWRIGHT TO BRING INTO QUESTION THE VALIDITY
OF HIS 1940 BURGLARY CONVICTION. 

IT THUS APPEARS THAT OF THE FOUR CONVICTIONS INTRODUCED TO IMPEACH
LOPER'S CREDIBILITY AT HIS 1947 RAPE TRIAL, ONLY THE BURGLARY
CONVICTION OF 1931-- A CONVICTION ENTERED UPON LOPER'S PLEA OF GUILTY--
CAN REASONABLY BE FOUND ON THIS RECORD TO HAVE BEEN EVEN ARGUABLY
INVALID UNDER GIDEON. 

        (2) 

WHEN A DEFENDANT IN A CRIMINAL TRIAL ELECTS TO TESTIFY ON HIS OWN
BEHALF, HE ASKS THE JURY, IN EFFECT, TO BELIEVE HIS TESTIMONY RATHER
THAN ANY CONFLICTING TESTIMONY INTRODUCED BY THE PROSECUTION.  HE
PRESENTS HIMSELF TO THE JURY AS A PERSON WORTHY OF BELIEF.  IN SO
DOING, HE BRINGS INTO ISSUE HIS CREDIBILITY AS A WITNESS, AND HE
THEREBY EXPOSES HIMSELF TO POSSIBLE CROSS-EXAMINATION DESIGNED TO
IMPEACH THAT CREDIBILITY.  SUCH CROSS-EXAMINATION IS LIMITED BY STATE
RULES OF EVIDENCE, OF COURSE, TO MATTERS WHICH ARE RELEVANT TO
CREDIBILITY AND WHICH ARE NOT, AT THE SAME TIME, SO PREJUDICIAL TO THE
DEFENDANT THAT THEY MUST BE EXCLUDED DESPITE THEIR RELEVANCE.  EACH
STATE'S RULES GOVERING SUCH CROSS-EXAMINATION REFLECT A BALANCE THAT
HAS BEEN STRUCK BY THAT STATE IN WEIGHING, WITH RESPECT TO A GIVEN
CATEGORY OF EVIDENCE, ITS PROBATIVE VALUE FOR IMPEACHMENT PURPOSES
AGAINST THE PREJUDICIAL EFFECT IT MIGHT HAVE UPON THE JURY'S
DETERMINATION OF THE DEFENDANT'S GUILT OR INNONCENCE OF THE CRIME
CHARGED.  /2/ 

THE PLURALITY OPINION CONCLUDES THAT THE DUE PROCESS CLAUSE WAS
VIOLATED IF ONE OR MORE OF THE PRIOR CONVICTIONS USED TO IMPEACH
LOPER'S CREDIBILITY, EVEN THOUGH FULLY VALID UNDER BETTS V. BRADY-- THE
PREVAILING LAW WHEN LOPER WAS TRIED IN 1947-- WAS RENDERED
CONSTITUTIONALLY INFIRM BY GIDEON.  THE PLURALITY OPINION DOES NOT MAKE
CLEAR, HOWEVER, WHETHER EVIDENCE OF ANY SUCH CONVICTIONS IS CONSIDERED
TO BE SO LACKING IN PROBATIVE VALUE AS TO VIOLATE DUE PROCESS OR TO BE
SO PREJUDICIAL AS TO DO SO.  IF ITS CONCLUSION WERE GROUNDED SOLELY ON
A CONSIDERATION OF UNDUE PREJUDICE, THE RATIONALE UNDERLYING TODAY'S
DECISION WOULD BE ELUSIVE INDEED.  THERE IS NO SUGGESTION IN THE RECORD
THAT THE JURY MIGHT HAVE FAILED TO FOLLOW THE INSTRUCTIONS GIVEN BY THE
TRIAL JUDGE THAT CONSIDERATION OF THESE PRIOR CONVICTIONS WAS TO BE
RESTRICTED SOLELY TO THE ISSUE OF LOPER'S CREDIBILITY.  NOR CAN ANY
PLAUSIBLE CONTENTION BE MADE THAT A JURY HAS MORE DIFFICULTY FOLLOWING
SUCH INSTRUCTIONS WHEN IT IS DEALING WITH AN UNCOUNSELED CONVICTION
THAN WHEN IT IS DEALING WITH A COUNSELED ONE. 

IT MUST BE, THEN, THAT THE CONCLUSION OFTHE PLURALITY OPINION IS
BASED UPON THE VIEW THAT IT IS FUNDAMENTALLY UNFAIR FOR A JURY TO BE
ALLOWED TO TREAT AN UNCOUNSELED CONVICTION, INTRODUCED TO IMPEACH A
DEFENDANT, AS THOUGH IT HAD THE PROBATIVE VALUE OF A COUNSELED
CONVICTION.  UNDER THIS VIEW, JURORS WHO ARE TOLD OF A PRIOR
UNCOUNSELED CONVICTION ARE MISLED IN REGARD TO A MATTER OF FACT; I.E.,
BY BEING TOLD MERELY THAT THE DEFENDANT WAS IN FACT PREVIOUSLY
CONVICTED OF A FELONY, THEY ARE MISLED INTO BELIEVING THAT HE WAS DULY
CONVICTED WHEN, UNDER A RETROACTIVE APPLICATION OF GIDEON, HE IN FACT
WAS NOT DULY CONVICTED.  I CANNOT AGREE THAT SUCH A VIEW JUSTIFIES A
FINDING HERE THAT IT WAS FUNDAMENTALLY UNFAIR OF THE TRIAL JUDGE AT
LOPER'S 1947 RAPE TRIAL TO FAIL TO MAKE AN EVIDENTIARY RULING, ON HIS
OWN MOTION, THAT HE COULD HAVE JUSTIFIED ONLY BY ANTICIPATING BY 16
YEARS THIS COURT'S OVERRULING OF BETTS V. BRADY IN 1963.  NOT EVEN THE
WISEST MEMBER OF THIS COURT COULD HAVE HAZARDED THAT PREDICTION IN
1947. 

THE PLURALITY OPINION, OF COURSE, DOES NOT ANALYZE THE CASE IN THESE
TERMS.  IT MERELY CONCLUDES, UNDER A RIGIDLY MECHANISTIC APPROACH, THAT
SINCE THIS COURT HELD IN GIDEON THAT AN UNCOUNSELED FELONY CONVICTION
CALLS FOR A NEW TRIAL WITH COUNSEL, WE ARE COMPELLED TO STRIKE DOWN A
FULLY COUNSELED PRE-GIDEON CONVICTION OBTAINED THROUGH A TRIAL IN WHICH
EVIDENCE OF ONE OR MORE PRIOR UNCOUNSELED CONVICTIONS WAS COLLATERALLY
USED.  THIS, OF COURSE, GIVES GIDEON A COLLATERAL CONSEQUENCE OF WHOLLY
UNREALISTIC DIMENSIONS THAT ARE UNRELATED TO BASIC FAIRNESS OR DUE
PROCESS; IT IS AN EFFORT TO "UNRING THE BELL" ON A SERIES OF BURGLARY
CONVICTIONS DATING BACK TO A PERIOD 41 YEARS AGO.  PARENTHETICALLY, I
NOTE THAT LOPER NOWHERE DENIES THAT HE COMMITTED THESE BURGLARIES. 

WE ALL AGREE THAT THE CONVICTIONS USED TO IMPEACH LOPER'S
CREDIBILITY DURING THE 1947 TRIAL WERE VALID UNDER THE LAW PREVAILING
AT THAT TIME.  THE JURY AT LOPER'S 1947 TRIAL CANNOT, THEREFORE, BE
SAID TO HAVE BEEN MISLED IN REGARD TO ANY CONTEMPORANEOUS MATTER OF
FACT.  NOR CAN IT BE SAID, WITHOUT DISTORTING THE DOCTRINE OF
RETROACTIVITY BEYOND ALL SEMBLANCE OF RATIONALITY AND COMMON SENSE,
THAT THE PROSECUTOR OR THE PRESIDING JUDGE AT LOPER'S RAPE TRIAL ACTED
IN VIOLATION OF THE PRINCIPLE OF "FUNDAMENTAL FAIRNESS."  IF LOPER'S
TRIAL WAS "FUNDAMENTALLY FAIR" WHEN IT WAS CONDUCTED, HOW CAN IT BE
SAID TO HAVE UNDERGONE A METAMORPHOSIS BECAUSE-- 16 YEARS LATER AND FOR
ANOTHER PURPOSE-- THE LAW CHANGED? 

WHEN WE HELD THAT GIDEON IS RETROACTIVE, WE MEANT THAT GIDEON
APPLIES TO AN UNCOUNSELED FELONY CONVICTION OBTAINED IN THE PAST AND
RENDERS THAT CONVICTION INVALID FOR ALL FUTURE PURPOSES, I.E., IT
RENDERS UNLAWFUL THE CONTINUATION INTO THE FUTURE OF THE CONVICTED
PRISONER'S INCARCERATION UNLESS A NEW TRIAL IS HAD.  GIDEON DOES NOT,
HOWEVER, RENDER SUCH A CONVICTION RETROACTIVELY INVALID FOR ALL
PURPOSES TO WHICH IT MAY HAVE ALREADY BEEN PUT IN THE PAST.  THE COURT,
IN GIVING SUCH AN ENLARGED EFFECT TO GIDEON, PLOWS NEW GROUND,
DISREGARDING THE IMPLICATIONS THAT WILL SURELY FOLLOW FROM THE
BROADENING OF SCOPE IT NOW GIVES TO THE DOCTRINE OF RETROACTIVITY.  FOR
THERE MUST BE MANY CONVICTIONS THAT WILL BE SENSELESSLY RENDERED
VULNERABLE TO ATTACK BY TODAY'S HOLDING. 

THE COURT APPLIES THE DOCTRINE OF RETROACTIVITY AS THOUGH IT
REQUIRED US TO ASSESS THE FAIRNESS OF PAST JUDICIAL PROCEEDINGS WITHOUT
MAKING ANY DISTINCTIONS BETWEEN A DECISION THAT WAS RENDERED AFTER
THOSE PROCEEDINGS AND GIVEN RETROACTIVE EFFECT, AND A DECISION THAT WAS
RENDERED BEFORE THOSE PROCEEDINGS; THE COURT THUS SEEMS TO VIEW THE
DOCTRINE OF RETROACTIVITY AS REQUIRING US TO JUDGE THE FAIRNESS OF
LOPER'S 1947 RAPE TRIAL AS THOUGH THAT TRIAL FOLLOWED GIDEON.  HAD THE
TRIAL INDEED FOLLOWED GIDEON, AND HAD THE TRIAL JUDGE PERMITTED THE
PROSECUTION TO USE PRIOR UNCOUNSELED CONVICTIONS TO IMPEACH LOPER, THEN
IT MIGHT WELL BE SAID THAT THE JUDGE DENIED FUNDAMENTAL FAIRNESS TO
LOPER IN REFUSING TO FOLLOW THE CLEAR TEACHING OF A DECISION OF THIS
COURT AND IN THEREBY "ERODING) THE PRINCIPLE" OF THAT DECISION. 
BURGETT V. TEXAS, 389 U.S. 109, 115 (1967).  WE ARE, HOWEVER, PRESENTED
WITH NO SUCH SITUATION HERE.  THE JUDGE AT LOPER'S TRIAL DID NOT REFUSE
TO FOLLOW ANY DECISION OF THIS COURT.  INDEED, HAD HE MADE THE RULING
THAT THE COURT TODAY IMPLICITLY HOLDS HE WAS REQUIRED TO MAKE, HE WOULD
HAVE BEEN VERY SPECIFICALLY REFUSING THEREBY TO FOLLOW THIS COURT'S
THEN-CONTROLLING DECISION IN BETTS V. BRADY. 

THE PLURALITY OPINION STATES THAT "(IF THE RETROACTIVITY OF GIDEON
IS 'SOUND,' THEN THIS CASE CANNOT BE DECIDED UNDER THE ILL-STARRED AND
DISCREDITED DOCTINE OF BETTS V. BRADY . . . . "  IF WE ARE PRECISE, OF
COURSE, THIS CASE IS NOT TO BE "DECIDED UNDER" EITHER BETTS OR GIDEON,
FOR IT RAISES AN ENTIRELY DIFFERENT QUESTION FROM THAT WHICH THE COURT
FACED IN THOSE TWO CASES.  BOTH BETTS AND GIDEON DEALT WITH THE
SUBSTANTIVE RIGHT TO COUNSEL IN A STATE FELONY TRIAL.  THE INSTANT CASE
DEALS WITH THE COLLATERALLY RELATED, BUT ALTOGETHER DIFFERENT, QUESTION
OF THE FUNDAMENTAL FAIRNESS OF AN IMPLIED EVIDENTIARY RULING MADE LONG
BEFORE GIDEON.  THE FAILURE OF THE PLURALITY OPINION TO RECOGNIZE THIS
SIMPLE, ALBEIT CRUCIAL, DISTINCTION UNFORTUNATELY PREVENTS THE DRAWING
OF A RATIONAL LINE THAT WOULD PRESERVE ALL THE VALUES OF BOTH GIDEON
AND BURGETT WITHOUT AT THE SAME TIME PRODUCING THE EXTRAVAGANT RESULT
REACHED BY THE COURT TODAY. 

THE INTRODUCTION, IN GOOD FAITH AND WITHOUT OBLIGATION, OF LAWFULLY
ADMISSIBLE EVIDENCE, THE TRUTH OF WHICH IS NOT PRESENTLY SUBJECT TO
CHALLENGE, CAN HARDLY BE CALLED A VIOLATION OF DUE PROCESS.  NOR WILL
SUCH A VIOLATION ARISE RETROACTIVELY BY THE OCCURRENCE OF LATER EVENTS
THAT MAY GIVE GROUNDS FOR CHALLENGING THE TRUTH OF THAT EVIDENCE.  CF.
TOWNSEND V. SAIN, 372 U.S. 293, 317 (1963):  "(THE EXISTENCE MERELY OF
NEWLY DISCOVERED EVIDENCE RELEVANT TO THE GUILT OF A STATE PRISONER IS
NOT A GROUND FOR RELIEF ON FEDERAL HABEAS CORPUS."  IN 1947, LOPER'S
PRIOR BURGLARY CONVICTIONS, VIEWED AS MATTERS OF EVIDENTIARY FACT IN
THE LIGHT OF THIS COURT'S THEN-RECENT DECISION IN BETTS V. BRADY, WERE
VALID CONVICTIONS.  BEING VALID IN 1947, THEY WERE THEN ADMISSIBLE IN
EVIDENCE TO IMPEACH LOPER'S CREDIBILITY.  THIS COURT'S DECISION IN
GIDEON 16 YEARS LATER MAY HAVE RENDERED ONE OR MORE OF THOSE
CONVICTIONS VULNERABLE TO ATTACK AND NOT USABLE FOR FUTURE EVIDENTIARY
OR OTHER PURPOSES.  BEARING IN MIND, HOWEVER, THAT THOSE BURGLARY
CONVICTIONS WERE NOTHING BUT MATTERS OF EVIDENTIARY FACT FOR THE
PURPOSES OF LOPER'S 1947 RAPE TRIAL, ANY SUBSEQUENTLY DISCOVERED
INVALIDITY IN ONE OF THOSE BURGLARY CONVICTIONS NO MORE RENDERED THE
CONDUCT OF LOPER'S RAPE TRIAL FUNDAMENTALLY UNFAIR THAN WOULD THE
SUBSEQUENT DISCOVERY OF NEW EVIDENCE TENDING, FOR EXAMPLE, TO DISCREDIT
THE TESTIMONY OF A PROSECUTION WITNESS WHO WAS QUESTIONED IN GOOD FAITH
BY THE STATE.  THE HOLDING IN GIDEON THAT UNCOUNSELED CONVICTIONS ARE
CONSTITUTIONALLY INVALID PROPERLY LEADS US TO REQUIRE NEW TRIALS TO
SUSTAIN ANY FURTHER CONFINEMENT OF PERSONS PREVIOUSLY CONVICTED WITHOUT
COUNSEL.  BUT WHERE PRIOR UNCOUNSELED CONVICTIONS WERE USED IN A PRE
GIDEON TRIAL SOLELY FOR EVIDENTIARY PURPOSES TO IMPEACH THE DEFENDANT,
THE LOGIC OF THE RULE ENUNCIATED IN TOWNSEND V. SAIN, SUPRA, COUNSELS
THAT WE SHOULD TREAT GIDEON FOR WHAT IT IS IN THIS CONTEXT, I.E., A
DECISION WHOSE EFFECT ON THE PRIOR IMPEACHING CONVICTIONS IS PROPERLY
ANALOGIZED TO THE DISCOVERY OF NEW EVIDENCE.  NEITHER FUNDAMENTAL
FAIRNESS NOR ANY SPECIFIC CONSTITUTIONAL PROVISION REQUIRES THAT A RULE
OF EVIDENCE BE MADE RETROACTIVE; CONSIDERATION FOR THE ORDERLY
ADMINISTRATION OF JUSTICE DICTATES THE CONTRARY. 

BURGETT V. TEXAS, SUPRA, ON WHICH THE PLURALITY OPINION RELIES,
SHOULD NOT BE READ EITHER TO REQUIRE OR TO JUSTIFY AND TODAY'S
DECISION.  BURGETT DEALT WITH A POST-GIDEON TRIAL AND ESTABLISHED THAT
IT IS A VIOLATION OF DUE PROCESS TO INTRODUCE AGAINST A DEFENDANT
EVIDENCE OF A PRIOR CONVICTION KNOWN AT THE TIME OF ITS INTRODUCTION TO
BE CONSTITUTIONALLY INFIRM UNDER EXISTING LAW.  IN REGARD TO LOPER'S
CASE, THE WORST THAT CAN BE SAID IS THAT 16 YEARS AFTER HIS TRIAL THERE
WAS AN EVENT-- THE DECISION IN GIDEON-- THAT, HAD IT PRE-DATED RATHER
THAN POST-DATED THE TRIAL, WOULD HAVE AFFECTED AN EVIDENTIARY RULING BY
THE TRIAL JUDGE. 

THE RULE IMPLICIT IN THE RESULT REACHED BY THE COURT TODAY DOES
VIOLENCE BOTH TO COMMON SENSE AND TO SOCIETY'S INTEREST IN THE FINALITY
OF JUDGMENTS.  ONLY IF TRIAL JUDGES WERE SOOTHSAYERS COULD THEY ADHERE
TO IT.  FOR UNDER THAT RULE, A PRIOR CONVICTION, ADMISSIBLE FOR
IMPEACHMENT PURPOSES UNDER STATE LAW AND FULLY VALID UNDER THE
CONSTITUTION AS EXPLICITLY INTERPRETED BY THIS COURT AT THE TIME THE
CONVICTION IS SOUGHT TO BE INTRODUCED, BECOMES RETROACTIVELY
INADMISSIBLE IF, YEARS AFTER THE TRIAL, A DECISION OF THIS COURT
RENDERS THAT PRIOR CONVICTION CONSTITUTIONALLY INFIRM.  WITH ALL
RESPECT, I SUBMIT THAT THE UNITED STATES CONSTITUTION DOES NOT GIVE
THIS COURT THE POWER TO IMPOSE UPON THE STATES ANY SUCH UNMANAGEABLE
AND ABSTRACTLY BASED RULE AS THAT.  INDEED, SUCH A RULE IS REPUGNANT TO
THE CONCEPT OF FEDERALISM AND TO THE VERY NOTIONS OF REASONABLENESS AND
ORDERLINESS EMBODIED IN THE DUE PROCESS CLAUSE.  IT IS A DISTRESSING
EXAMPLE OF PRESSING THE SOUND DOCTRINE OF RETROACTIVITY BEYOND THE
OUTER LIMITS OF ITS LOGIC.     IF BURGETT DOES, INDEED, MEAN WHAT THE
PLURALITY OPINION READS INTO IT, WE SHOULD OVERRULE THAT DECISION
WITHOUT DELAY.  AS MR. JUSTICE HARLAN, FOR HIMSELF, MR. JUSTICE BLACK,
AND MR, JUSTICE WHITE, OBSERVED, "WE DO NOT SIT AS A COURT OF ERRORS
AND APPEALS IN STATE CASES . . . . "  389 U.S.,AT 120. 

/1/  THE DISTRICT COURT, AFTER OBSERVING LOPER AND HEARING HIM
TESTIFY, STATED THAT "PETITIONER HAS MADE FALSE STATEMENTS UNDER OATH,
AND HAS TESTIFIED TO A SET OF FACTS SO ROUNDLY AND THOROUGHLY SHOWN TO
BE FALSE BY UNIMPEACHABLE EVIDENCE THAT LITTLE OR NO CREDENCE MAY BE
PLACED IN HIS OWN TESTIMONY . . . . " 

/2/ CF. MICHELSON V. UNITED STATES, 335 U.S. 469 (1948), WHERE THIS
COURT WAS CALLED UPON TO STRIKE A SOMEWHAT SIMILAR BALANCE WITH RESPECT
TO CROSS-EXAMINATION DESIGNED TO IMPEACH THE CREDIBILITY OF CHARACTER
WITNESSES WHO CLAIM TO BE FAMILIAR WITH A DEFENDANT'S REPUTATION IN THE
COMMUNITY.  THE COURT HELD THAT WHEN A DEFENDANT IN A FEDERAL TRIAL
PUTS HIS CHARACTER IN EVIDENCE BY CALLING SUCH WITNESSES, THE
GOVERNMENT MAY CROSS-EXAMINE THOSE WITNESSES TO DETERMINE WHETHER THEY
ARE AWARE OF ANY PRIOR ARRESTS THAT MAY BE ON THE DEFENDANT'S RECORD
AND THAT MAY CONSEQUENTLY HAVE AFFECTED HIS REPUTATION.  THE COURT
REASONED THAT, DESPITE THE POSSIBILITY OF PREJUDICE, "(TO HOLD
OTHERWISE WOULD GIVE DEFENDANT THE BENEFIT OF TESTIMONY THAT HE WAS
HONEST AND LAW-ABIDING IN REPUTATION WHEN SUCH MIGHT NOT BE THE FACT .
. . . "  ID., AT 484. 

MR. JUSTICE BLACKMUN, DISSENTING. 

THE PLURALITY IN THIS CASE APPLIES BURGETT V. TEXAS, 389 U.S. 109
(1967), AND, SEEMINGLY, UNITED STATES V. TUCKER, 404 U.S. 443 (1972),
TO PROSCRIBE THE USE OF ALLEGEDLY UNCOUNSELED PRIOR CONVICTIONS OF MANY
YEARS AGO FOR THE PURPOSE OF IMPEACHING THE DEFENDANT WHO TAKES THE
STAND IN HIS OWN DEFENSE.  BURGETT MAY BE CLAIMED TO BE A NATURAL
SUCCEEDING STEP TO GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), BUT ITS
APPLICATION TO LOPER'S CASE HAS ASPECTS, NOT PARTICULARLY STRESSED BY
THE PLURALITY, THAT ARE TROUBLESOME FOR ME: 

1.  THE RESOLUTION OF THE ORIGINAL STATUTORY RAPE CASE CAME DOWN TO
A CHOICE, ON THE PART OF THE JURY, BETWEEN THE TESTIMONY OF THE EIGHT
YEAR-OLD VICTIM AND THE TESTIMONY OF LOPER.  THIS, OF COURSE, IS NOT
UNCOMMON IN A RAPE CASE, BUT IT ALWAYS PROVIDES AN ELEMENT OF
UNSURENESS.  IT IS THE WOMAN'S-- OR THE CHILD'S-- WORD AGAINST THE
MAN'S.  HAMGING IN THE BALANCE IS A PENALTY OF GREAT SEVERITY.  THE 50
YEAR SENTENCE IMPOSED ON LOPER IS ILLUSTRATIVE AND IS A TEMPTING TARGET
FOR A REVIEWING COURT. 

2.  OBVIOUSLY, THE COURT'S FAMILIAR REMAND "FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION" IS REALLY MEANINGLESS IN THIS CASE. 
CERTAINLY IT DOES NOT CARRY WITH IT THE USUAL MEANING AND
IMPLICATIONS.  THE INCIDENT THAT IS THE SUBJECT OF THE CRIMINAL CHARGE
TOOK PLACE 25 YEARS AGO.  THE VICTIM, THEN EIGHT YEARS OLD, IS NOW
ABOUT 33.  I SUSPECT THAT AN EVENT WHICH WOULD BE VIVID AT THE TIME FOR
A CHILD HAS FADED, MERCIFULLY, IN THE VICTIM'S MEMORY.  RETRIAL, IF NOT
IMPOSSIBLE, IS HIGHLY UNLIKELY.  THE COURT'S REMAND THEREFORE ACTUALLY
TRANSLATES INTO AN ENFORCED STATE ACQUITTAL AND RELEASE FOR LOPER. 

3.  THE PLURALITY'S RELIANCE UPON LOPER'S TESTIMONY AT THE HABEAS
HEARINGS AND UPON CERTIFIED RECORDS OF MISSISSIPPI AND TENNESSEE
PROCEEDINGS IS NOT COMPLETE.  PERHAPS THE RECORDS OF THE 1931 AND 1940
PROCEEDINGS COULD BE SAID TO SUPPORT AN IMPLICATION THAT LOPER WAS NOT
REPRESENTED BY COUNSEL IN THOSE CASES.  BUT NO RECORD AT ALL OF THE
1932 MISSISSIPPI PROCEEDING WAS PRESENTED.  AND THE 1935 RECITAL THAT
LOPER APPEARED "IN PERSON" IS NO MORE THAN THE CUSTOMARY RECITAL, IF
PROPERLY DRAWN, FOR ANY CRIMINAL PROCEEDING WHEN COUNSEL IS, IN FACT,
PRESENT.  AS THE PLURALITY'S FOOTNOTE 3 REVEALS, LOPER TESTIFIED AS TO
THE ABSENCE OF COUNSEL AT ONLY THE 1931 AND 1940 PROCEEDINGS.  HE SAID
NOTHING WITH RESPECT TO THE 1932 AND 1935 PROCEEDINGS.  THUS, FOR ME,
THE 1932 AND 1935 PRIOR CONVICTIONS STAND EFFECTIVELY UNCHALLENGED ON
THIS RECORD.  SURELY, AS TO THEM, LOPER HAS NOT SUSTAINED HIS BURDEN OF
PROOF. 

4.  I HAVE MORE THAN A MILD SUSPICION THAT AS A PRACTICAL MATTER THE
OUTCOME OF THE CASE WOULD HAVE BEEN EXACTLY THE SAME HAD THE PRIORS NOT
BEEN USED TO IMPEACH LOPER'S CREDIBILITY.  YET THEIR USE WAS LEGALLY
ACCEPTED 25 YEARS AGO.  THAT USE, NOW HELD IMPROPER BY THE COURT,
DESTROYS THE CONVICTION IRRETRIEVABLY. 

5.  LOPER'S TROUBLES WITH THE LAW DID NOT CEASE WITH HIS STATUTORY
RAPE CONVICTION IN 1947.  AS THE OPINION OF THE COURT OF APPEALS
REVEALS, 440 F.2D 934, 936, LOPER WAS ON PAROLE IN 1963 WHEN HE WAS
ARRESTED FOR CAR THEFT IN MISSISSIPPI.  WHILE A PAROLE REVOCATION ORDER
WAS AWAITING EXECUTION, HE ESCAPED AND WAS A FUGITIVE FOR MORE THAN A
YEAR. 

6.  I SEE NO NEED TO RECEDE FROM BURGETT V. TEXAS AT THIS TIME, BUT
ITS APPLICATION TO THE CIRCUMSTANCES OF LOPER'S CASES GIVES ME THE
IMPRESSION THAT WHAT APPEARS TO BE AN ACCEPTABLE PRINCIPLE CAN BE RUN
INTO THE GROUND WHEN INDISCRIMINATELY APPLIED.  HERE AGAIN, BY
IMPRACTICAL APPLICATION, THE PLURALITY HAS PAINTED ITSELF INTO A
CORNER.  HERE AGAIN, SOME REALISM IS NEEDED.  SEE UNITED STATES V.
TUCKER, 404 U.S.,AT 452 (BLACKMUN, J., DISSENTING). 

WE WERE ADVISED AT ORAL ARGUMENT THAT LOPER ONCE MORE IS ON PAROLE
AND IS WORKING IN TEXAS.  /1/  THUS, ASSUMING HE BEHAVES HIMSELF OR, TO
PUT IT MORE FORMALLY, THAT HE DOES NOT VIOLATE HIS PAROLE, THE
PLURALITY'S DECISION, HOWEVER IT WERE TO GO, WOULD NOT HAVE MUCH EFFECT
UPON HIS PRESENT FREEDOM.  ON BALANCE, I FEEL THAT THE CHIEF JUSTICE
AND MR. JUSTICE REHNQUIST, IN DISSENT, HAVE THE BETTER OF THE ARGUMENT,
AND CERTAINLY THE STRONGER POSITION IN THE LIGHT OF THE
PRACTICALITIES.  I THEREFORE ALSO DISSENT. 

/1/  TR. OF ORAL ARG. 27, 31-32. 

MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE POWELL JOIN, DISSENTING. 

IN REVERSING THE JUDGMENT OF THE COURT OF APPEALS, WHICH AFFIRMED
DENIAL OF FEDERAL HABEAS CORPUS RELIEF TO PETITIONER, THE PLURALITY
UNDERTAKES TO APPLY THE CONSTITUTIONAL DOCTRINE OF BURGETT V. TEXAS,
389 U.S. 109 (1967), AND UNITED STATES V. TUCKER, 404 U.S. 443 (1972),
TO THE CASE WHERE THE UNCOUNSELED CONVICTION IS UED TO IMPEACH THE
CRIMINAL DEFENDANT WHEN HE TAKES THE STAND IN THIS QUESTION, OF COURSE,
THE PLURALITY MUST CONCLUDE THAT THE PRIOR BURGLARY CONVICTIONS
OBTAINED MANY YEARS AGO IN TENNESSEE AND MISSISSIPPI WERE IN FACT
UNCOUNSELED, AND THAT THE DEFENDANT HAD NOT WAIVES THE CONSTITUTIONAL
RIGHT TO COUNSEL THAT GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963),
ACCORDS HIM.  PETITIONER SO TESTIFIED WITH RESPECT TO THE MISSISSIPPI
CONVICTIONS AT THE FEDERAL HABEAS HEARING.  BUT THE HABEAS JUDGE, A
VETERAN OF MORE THAN 20 YEARS' EXPERIENCE AS A FEDERAL DISTRICT COURT
JUDGE, FOUND AS FOLLOWS WITH RESPECT TO PETITIONER'S ASSERTIONS OF
CONSTITUTIONAL ERROR: 

     "AT THE OUTSET IT MIGHT BE STATED THAT PETITIONER HAS MADE

  FALSE STATEMENTS UNDER OATH, AND HAS TESTIFIED TO A SET OF FACTS

  SO ROUNDLY AND THOROUGHLY SHOWN TO BE FALSE BY UNIMPEACHABLE

  EVIDENCE THAT LITTLE OR NO CREDENCE MAY BE PLACED IN HIS OWN

  TESTIMONY.  . . ."  (APP. 61.) 

ON THE BASIS OF OTHER FACTUAL INCONSISTENCIES THAT WERE RESOLVED
AGAINST THE PETITIONER, THE TRIAL JUDGE MADE THE FOLLOWING GENERAL
OBSERVATION CONCERNING PETITIONER'S CREDIBILITY: 

   "AS STATED AT THE OUTSET, PETITIONER HAS FILED INNUMERABLE

  APPLICATIONS FOR RELIEF.  POUND FOR POUND.  HE IS PROBABLY THE

  MOST PROLIFIC WRITER OF WRITS TO COME BEFORE THIS COURT.  HIS

  APPLICATIONS, VERIFIED UNDER OATH, AND HIS TESTIMONY IN OPEN

  COURT UNDER OATH, HAVE BEEN FOUND REPEATEDLY TO BE COMPLETELY

  FALSE."  (APP. 65.) 

IT IS THEREFORE SURPRISING, AT LEAST AT FIRST BLUSH, TO FIND THE
PLURALITY REACHING THE CONSTITUTIONAL QUESTION THAT IT DECIDES.  I
BELIEVE THE PROCEDURAL POSTURE IN WHICH THIS CASE IS PRESENTED CALLS
FOR MORE ATTENTION THAN IT RECEIVES IN THE PLURALITY'S OPINION. 

IN 1947, PETITIONER WAS CONVICTED IN A TEAXAS STATE COURT OF THE
CRIME OF STATUTORY RAPE OF HIS EIGHT-YEAR-OLD STEPDAUGHTER.  IN THE
COURSE OF THAT TRIAL, PETITIONER TOOK THE STAND, AND, AS APPROPRIATE
UNDER TEXAS LAW, WAS CROSS-EXAMINED ABOUT FOUR PRIOR CONVICTIONS FOR
BURGLARY, WHICH HAD BEEN OBTAINED AGAINST HIM IN THE STATES OF
MISSISSIPPI AND TENNESSEE DURING THE PERIOD FROM 1931 TO 1940.  THE
JURY CONVICTED PETITIONER OF THE OFFENSE, AND SENTENCED HIM TO SERVE 50
YEARS IN THE PENITENTIARY.  THAT CONVICTION HAS LONG SINCE BECOME
FINAL, AND INDEED PETITIONER IS NOW ON PAROLE. 

IN THE PRESENT HABEAS PROCEEDING, PETITIONER SOUGHT TO ATTACK NOT
ONLY THE 25-YEAR-OLD TEXAS JUDGMENT OF CONVICTION UNDER WHICH HE STILL
SERVES, BUT ALSO TO CHALLENGE THE CONSTITUTIONAL VALIDITY OF THE
MISSISSIPPI AND TENNESSEE BURGLARY CONVICTIONS WHICH VARY IN AGE FROM
30 TO 40 YEARS.  HE INTRODUCED CERTIFIED COPIES OF A 1940 MISSISSIPPI
CONVICTION, RECITING APPEARANCES AT THE TRIAL BY THE PROSECUTOR AND BY
"THE DEFENDANT IN HIS OWN PROPER PERSON"; A CERTIFIED COPY OF THE
INDICTMENT AND JUDGMENT IN A 1935 TENNESSEE BURGLARY CONVICTION
RECITING APPEARANCES BY THE PROSECUTOR "AND THE DEFENDANT IN PERSON";
AND A CERTIFIED COPY OF AN INDICTMENT, JUDGMENT, AND SENTENCE OBTAINED
IN MISSISSIPPI IN 1931, WHICH WERE SILENT REGARDING THE PRESENCE OR
ABSENCE OF COUNSEL.  NO DOCUMENTARY EVIDENCE WHATEVER WAS INTRODUCED
WITH RESPECT TO THE 1932 MISSISSIPPI BURGLARY CONVICTION, WHICH WAS THE
FOURTH SUCH JUDGMENT ABOUT WHICH HE WAS INTERROGATED IN THE COURSE OF
THE TEXAS RAPE TRIAL. 

IN ADDITION TO SUCH DOCUMENTARY EVIDENCE, PETITIONER IN THE FEDERAL
HABEAS PROCEEDING TOOK THE STAND HIMSELF AND TESTIFIED EXPLICITLY THAT
HE HAD NOT BEEN ADVISED OF HIS RIGHT TO COUNSEL, NOR HAD HE BEEN
FURNISHED COUNSEL IN THE 1931 AND 1940 MISSISSIPPI BURGLARY
CONVICTIONS.  BUT THE TESTIMONY OF THE PETITIONER IN THIS PROCEEDING
WAS FOUND BY THE FEDERAL HABEAS JUDGE TO BE FALSE.  (SUPRA, AT 498.) 

IN JOHNSON V. ZERBST, 304 U.S. 458, 468-469 (1938), ONE OF THE
LANDMARK HABEAS CORPUS DECISIONS OF THIS COURT, MR. JUSTICE BLACK
SAID: 

"IT MUST BE REMEMBERED, HOWEVER, THAT A JUDGMENT CANNOT BE

  LIGHTLY SET ASIDE BY COLLATERAL ATTACK, EVEN ON HABEAS CORPUS. 

  WHEN COLLATERALLY ATTACKED, THE JUDGMENT OF A COURT CARRIES WITH

  IT A PRESUMPTION OF REGULARITY.  (FOOTNOTE OMITTED.)  WHERE A

  DEFENDANT, WITHOUT COUNSEL, ACQUIESCES IN A TRIAL RESULTING IN

  HIS CONVICTION AND LATER SEEKS RELEASE BY THE EXTRAORDINARY

  REMEDY OF HABEAS CORPUS, THE BURDEN OF PROOF RESTS UPON HIM TO

  ESTABLISH THAT HE DID NOT COMPETENTLY AND INTELLIGENTLY WAIVE HIS

  CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL.  IF IN A HABEAS

CORPUS HEARING, HE DOES MEET THIS BURDEN AND CONVINCES THE COURT

  BY A PREPONDERANCE OF EVIDENCE THAT HE NEITHER HAD COUNSEL NOR

  PROPERLY WAIVED HIS CONSTITUTIONAL RIGHT TO COUNSEL, IT IS THE

  DUTY OF THE COURT TO GRANT THE WRIT." 

IN ADDITION TO THE VERY SUBSTANTIAL INTERESTS IN "A VISIBLE END TO
THE LITIGABLE ASPECT OF THE CRIMINAL PROCESS . . . ," /1/  THIS CASE
PRESENTS OTHER UNIQUE PRACTICAL CONSIDERATIONS FOR PLACING THE
TRADITIONAL JOHNSON BURDEN UPON THE PETITIONER TO ESTABLISH A
SUBSTANTIAL CONSTITUTIONAL DEPRIVATION.  IN THIS CASE, UNLIKE THE
NORMAL HABEAS PROCEEDING, NOT ONLY THE UNDERLYING STATE CONVICTION IS
PUT IN QUESTION, BUT ALSO CONVICTIONS OF ANOTHER ERA FROM OTHER
STATES. 

IT IS A SUFFICIENTLY DIFFICULT TASK FOR A FEDERAL DISTRICT COURT
SITTING IN TEXAS TO REVIEW A TEXAS STATE CRIMINAL PROCEEDING FOR
CONSTITUTIONAL ERROR; IN THAT CASE THE TEXAS STATE CUSTODIAN HIMSELF IS
A DEFENDANT IN THE PROCEEDING, ALL COUNSEL AND THE DISTRICT JUDGE ARE
FAMILIAR WITH LOCAL TEXAS CRIMINAL PROCEDURE, AND THE STATE AND
PETITIONER BOTH HAVE AVAILABLE SUCH WITNESSES AS MAY BE NECESSARY TO
AUGMENT THE RECORD PERTAINING TO THE JUDGMENT UNDER ATTACK.  WHATEVER
EVIDENTIARY HEARING IS HELD WILL TAKE PLACE IN THE GENERAL LOCALE WHERE
THOSE WITNESSES WHO HAVE KNOWLEDGE OF THE EARLIER STATE PROCEEDINGS ARE
AVAILABLE TO TESTIFY. 

IT IS A GOOD DEAL MORE DIFFICULT FOR THE SAME TEXAS HABEAS COURT TO
MAKE A SECOND-LEVEL COLLATERAL REVIEW OF JUDGMENTS OF CONVICTION
RENDERED IN THE STATE COURTS OF MISSISSIPPI AND TENNESSEE.  THE STATES
THAT RENDERED THE CONVICTIONS ARE NOT PARTIES TO THE TEXAS HABEAS
PROCEEDING, AND, OF COURSE, HAVE NO INTEREST WHATEVER IN SUSTAINING THE
VALIDITY OF SENTENCES LONG SINCE SERVED.  NEITHER THE TEXAS DISTRICT
COURT NOR TEXAS COUNSEL CAN BE EXPECTED TO HAVE ANY FAMILIARITY WITH
THE VAGARIES OF CRIMINAL PROCEDURE IN MISSISSIPPI AND TENNESSEE.  IF
THERE ARE ANY SURVIVING WITNESSES TO THE ACTUAL COURT PROCEEDINGS,
WHICH TOOK PLACE FROM 30 TO 40 YEARS AGO, THEY ARE SUFFICIENTLY DISTANT
FROM THE LOCATION OF THE TEXAS HABEAS COURT AS TO RENDER THEIR
VOLUNTARY APPEARANCE UNLIKELY, AND THEIR COMPULSION BY PROCESS
IMPOSSIBLE. 

IN CARNLEY V. COCHRAN, 369 U.S. 506 (1962), A CASE THAT CAME HERE ON
CERTIORARI TO REVIEW A JUDGMENT OF THE SUPREME COURT OF FLORIDA, THIS
COURT HELD THAT, IN THE FACE OF A RECORD COMPLETELY SILENT ON THE
ISSUE, THERE WAS A PRESUMPTION AGAINST WAIVER OF A FUNDAMENTAL
CONSTITUTIONAL RIGHT SUCH AS THE RIGHT TO COUNSEL.  /2/  ONE NEED NOT
QUARREL WITH THIS PRINCIPLE, APPLIED AS IT WAS IN CARNLEY TO THE REVIEW
OF A STATE SUPREME COURT REFUSAL TO VACATE A RECENT JUDGMENT OF ONE OF
ITS LOWER COURTS, TO BELIEVE THAT IN THE CIRCUMSTANCES PRESENTED BY THE
INSTANT CASE THE BURDEN OF PROOF PRESCRIBED FOR FEDERAL HABEAS ACTIONS
IN JOHNSON V. ZERBST, SUPRA, SHOULD REMAIN ON THE HABEAS PETITIONER. 
THIS IS CONSISTENT WITH THE HOLDING LAST TERM IN KITCHENS V. SMITH, 401
U.S. 847, 848 (1971), IN WHICH A PETITIONER ASSERTED IN A STATE HABEAS
PROCEEDING THAT HIS SIXTH AMENDMENT RIGHTS UNDER GIDEON V. WAINWRIGHT
HAD BEEN VIOLATED BECAUSE THE STATE HAD FAILED TO PROVIDE HIM WITH
COUNSEL IN A 1944 PROCEEDING AT WHICH TIME HE WAS INDIGENT.  IN
REVERSING THE DENIAL OF HABEAS RELIEF, THE COURT SAID:  "OF COURSE, TO
ESTABLISH HIS RIGHT TO APPOINTED COUNSEL IN 1944, PETITIONER HAD THE
BURDEN OF PROVING HIS INABILITY AT THAT TIME TO HIRE AN ATTORNEY." 
UNDER GIDEON V. WAINWRIGHT, THE PETITIONER IN THE CASE BEFORE US WAS
ENTITLED TO THE ASSISTANCE OF COUNSEL IN EACH OF THE MISSISSIPPI AND
TENNESSEE BURGLARY TRIALS IN WHICH HE WAS A DEFENDANT.  HOWEVER, EVEN
UNDER GIDEON, THE ASSIGNMENT OF COUNSEL TO EVERY CRIMINAL DEFENDANT IS
NOT MANDATORY; THE DEFENDANT MAY, UPON BEING ADVISED OF HIS RIGHT,
DETERMINE THAT HE DOES NOT WISH TO AVAIL HIMSELF OF IT.  THUS, THE FACT
THAT THE TRANSCRIPT OF THE JUDGMENT ROLL ADMITTED FROM THE TENNESSEE
AND MISSISSIPPI PROCEEDINGS INDICATES IN AT LEAST TWO OF THE FOUR CASES
THAT PETITIONER DID NOT HAVE COUNSEL IS NOT CONCLUSIVE ON THE ISSUE OF
WHETHER HIS RIGHTS UNDER GIDEON V. WAINWRIGHT WERE VIOLATED.  UNDER
JOHNSON V. ZERBST, THE BURDEN IN FEDERAL HABEAS CORPUS IS UPON HIM TO
PROVE TO THE SATISFACTION OF THE FEDERAL HABEAS JUDGE THAT HE DID NOT
WAIVE THE RIGHT TO COUNSEL.  HERE PETITIONER EXPLICITLY TESTIFIED IN A
MANNER THAT, IF THE TRIAL JUDGE HAD CHOSEN TO BELIEVE HIM, WOULD INDEED
HAVE ESTABLISHED THAT HE DID NOT WAIVE HIS RIGHT TO COUNSEL IN THE
MISSISSIPPI PROCEEDINGS AND THUS THOSE CONVICTIONS WERE OBTAINED IN
VIOLATION OF GIDEON V. WAINWRIGHT.  HOWEVER, ON THE BASIS OF HIS
OVERALL ASSESSMENT OF PETITIONER'S CREDIBILITY, THE TRIAL JUDGE
DECLINED TO BELIEVE THESE SELF-SERVING ASSERTIONS.  THE UNIFORM
DOCTRINE OF THE CASES, BOTH IN THIS COURT AND ELSEWHERE, IS THAT THE
FINDER OF FACT IS ENTITLED TO WHOLLY DISBELIEVE THE TESTIMONY OF AN
INTERESTED WITNESS.  NLRB V. PITTSBURGH S.S. CO., 337 U.S. 656, 659
(1949).  AS I READ THE MEMORANDUM OPINION OF THE DISTRICT JUDGE, THAT
IS PRECISELY WHAT HE CHOSE TO DO HERE. 

IT IS TRUE THAT OUR GRANT OF CERTIORARI IN THIS CASE WAS LIMITED TO
THE QUESTION THAT IS DECIDED BY THE PLURALITY IN TODAY'S OPINION.  BUT
THE LIMITED NATURE OF THE GRANT IS NOT AN ADVANCE GUARANTEE THAT AFTER
READING BRIEFS AND HEARING ORAL ARGUMENT, WE WILL BE SAITSFIED THAT THE
QUESTION IS PROPERLY PRESENTED TO US.  OUR DUTY TO AVOID CONSTITUTIONAL
ADJUDICATION WHEN NARROWER GROUNDS OF DECISION ARE POSSIBLE IS CLEARLY
ESTABLISHED BY SUCH AUTHORITY AS ASHWANDER V. TVA, 297 U.S. 288, 345
348 (1936) (BRANDEIS, J., CONCURRING), AND RESCUE ARMY V. MUNICIPAL
COURT OF LOS ANGELES, 331 U.S. 549 (1947). 

CONCLUDING AS I DO THAT THE NECESSARY PREDICATE FOR THE PLURALITY'S
CONSTITUTIONAL DECISION IS ABSENT, I WOULD DISMISS THE WRIT OF
CERTIORARI AS IMPROVIDENTLY GRANTED.  SINCE THE PLURALITY ADDRESSES
ITSELF TO THE MERITS OF THE CASE, I DO LIKEWISE.  I WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS ON THE GROUND THAT PETITIONER HAS NOT
SATISFACTORILY MET HIS BURDEN OF PROOF THAT THE MISSISSIPPI AND
TENNESSEE CONVICTIONS WERE OBTAINED IN VIOLATION OF GIDEON V.
WAINWRIGHT, AND THEREFORE THAT COURT WAS CORRECT IN AFFIRMING THE
DISTRICT COURT'S JUDGMENT DENYING HABEAS RELIEF. 

/1/  MACKEY V. UNITED STATES, 401 U.S. 667, 690 (1971) (SEPARATE
OPINION OF HARLAN, J.). 

/2/  CARNLEY WAS CONVICTED AND SENTENCED ON SEPTEMBER 19, 1958.  ON
JUNE 16, 1960, THE SUPREME COURT OF FLORIDA GRANTED A PROVISIONAL WRIT
OF HABEAS CORPUS THAT WAS DISCHARGED ON SEPTEMBER 23, 1960.  CARNLEY V.
COCHRAN, 123 SO.2D 249, 250 (1960). 

JOHN T. CABANISS, BY APPOINTMENT OF THE COURT, 404 U.S. 954, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WAS DAN G. MATTHEWS. 

ROBERT DARDEN, ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED THE CAUSE
FOR RESPONDENTS.  WITH HIM ON THE BRIEF WERE CRAWFORD C. MARTIN,
ATTORNEY GENERAL, NOLA WHITE, FIRST ASISTANT ATTORNEY GENERAL, ALFRED
WALKER, EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND ROBERT C. FLOWERS,
ASSISTANT ATTORNEY GENERAL. 
..END :














HUMPHREY V. CADY, 405 U.S. 504 


       HUMPHREY V. CADY, WARDEN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 70-5004.  ARGUED DECEMBER 7, 1971-- DECIDED MARCH 22,

           1972 


PETITIONER WAS CONVICTED OF CONTRIBUTING TO THE DELINQUENCY OF A
MINOR, A MISDEMEANOR PUNISHABLE BY A MAXIMUM SENTENCE OF ONE YEAR.  IN
LIEU OF SENTENCE, HE WAS COMMITTED TO THE "SEX DEVIATE FACILITY" IN THE
STATE PRISON, FOR A POTENTIALLY INDEFINITE PERIOD, PURSUANT TO THE
WISCONSIN SEX CRIMES ACT.  THAT ACT PROVIDES THAT WHEN A COURT FINDS
THAT A CONVICTED PERSON WAS "PROBABLY DIRECTLY MOTIVATED BY A DESIRE
FOR SEXUAL EXCITEMENT," IT MAY COMMIT THE DEFENDANT TO THE DEPARTMENT
OF HEALTH AND SOCIAL SERVICES FOR A SOCIAL, PHYSICAL, AND MENTAL
EXAMINATION, AND IF THE DEPARTMENT RECOMMENDS SPECIALIZED TREATMENT,
THE COURT MUST HOLD A HEARING ON THE NEED THEREFOR.  IF THE STATE
ESTABLISHES THE NEED FOR TREATMENT, THE COURT MUST COMMIT THE DEFENDANT
FOR TREATMENT IN LIEU OF SENTENCE FOR A PERIOD EQUAL TO THE MAXIMUM
SENTENCE AUTHORIZED FOR THE CRIME.  AT THE END OF THAT PERIOD THE
DEPARTMENT MAY PETITION FOR A RENEWAL OF THE COMMITMENT FOR FIVE
YEARS.  AFTER NOTICE AND HEARING, THE COURT MAY RENEW THE COMMITMENT IF
IT FINDS THAT DISCHARGE WOULD BE "DANGEROUS TO THE PUBLIC."  FURTHER
FIVE-YEAR RENEWALS MAY BE SIMILARLY OBTAINED.  PETITIONER IS SUBJECT TO
A FIVE-YEAR RENEWAL ORDER, OBTAINED AT THE EXPIRATION OF HIS ONE-YEAR
SENTENCE.  HE CHALLENGES THE ORIGINAL AND RENEWAL COMMITMENT
PROCEDURES.  HE ARGUES THAT COMMITMENT FOR COMPULSORY TREATMENT UNDER
THE SEX CRIMES ACT, AT LEAST AFTER THE ORIGINAL COMMITMENT, IS
ESSENTIALLY EQUIVALENT TO COMMITMENT UNDER WISCONSIN'S MENTAL HEALTH
ACT, WHICH PROVIDES FOR JURY DETERMINATIONS, AND THAT HIS COMMITMENT
WITHOUT JURY ACTION DEPRIVES HIM OF EQUAL PROTECTION OF THE LAWS.  HE
ALSO CLAIMS THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT BOTH
HEARINGS AND THE OPPORTUNITY TO BE PRESENT AND TO CONFRONT THE STATE'S
WITNESSES AT THE RENEWAL HEARING.  HE CHARGES EQUAL PROTECTION AND DUE
PROCESS WOULD CONSTITUTE DOUBLE JEOPARDY AND INDICATED A BROAD
CONSTITUTIONAL CHALLENGE TO THE SEX CRIMES ACT.  HOWEVER, NO FURTHER
ACTION ON PETITIONER'S BEHALF WAS TAKEN.  THE DISTRICT COURT DISMISSED
HIS HABEAS CORPUS PETITION ON THE GROUNDS THAT HIS CLAIMS WERE LACKING
IN MERIT AND THAT THEY HAD BEEN WAIVED BY FAILURE TO PRESENT THEM
ADEQUATELY TO THE STATE COURTS.  THE COURT OF APPEALS REFUSED TO
CERTIFY PROBABLY CAUSE FOR AN APPEAL, ON THE GROUND THAT THE CLAIMS
WERE FRIVOLOUS.  HELD: 

1.  PETITIONER'S CLAIMS ARE SUBSTANTIAL ENOUGH TO WARRANT AN
EVIDENTIARY HEARING.  BAXSTROM V. HEROLD, 383 U.S 107; SPECHT V.
PATTERSON, 386 U.S. 605.  PP. 508-514. 

(A) THE RENEWAL PROCEEDINGS BEAR SUBSTANTIAL RESEMBLANCE TO THE POST
SENTENCING PROCEEDINGS IN BAXSTROM, SUPRA, AND THE WISCONSIN SUPREME
COURT HAS HELD THAT EVEN THE INITIAL COMMITMENT IS NOT JUST A
SENTENCING ALTERNATIVE BUT AN INDEPENDENT COMMITMENT FOR TREATMENT,
COMPARABLE TO COMMITMENT UNDER THE MENTAL HEALTH ACT.  PP. 508-511. 

(B) THE MENTAL HEALTH ACT AND THE SEX CRIMES ACT ARE APPARENTLY NOT
MUTUALLY EXCLUSIVE, AND AN EQUAL PROTECTION CLAIM WOULD BE PERSUASIVE
IF IT DEVELOPS ON REMAND THAT PETITIONER WAS DEPRIVED OF A JURY
DETERMINATION OR OTHER PROCEDURAL PROTECTIONS MERELY BY THE ARBITRARY
DECISION TO SEEK COMMITMENT UNDER ONE ACT RATHER THAN THE OTHER.  P.
512. 

(C) REMAND WILL PROVIDE AMPLE OPPORUNITY TO DEVELOP FACTS RELEVANT
TO RESPONDENT'S CLAIM OF MOOTNESS AS WELL AS TO PETITIONER'S OTHER
CONSTITUTIONAL CLAIMS.  PP. 512-514. 

2.  FEDERAL HABEAS CORPUS IS NOT BARRED BY EVERY STATE PROCEDURAL
DEFAULT, AND AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE WHETHER
PETITIONER KNOWINGLY AND INTELLIGENTLY MADE A DELIBERATE STRATEGIC
WAIVER OF HIS CLAIMS IN STATE COURT.  PP. 514-517. 

REVERSED AND REMANDED TO DISTRICT COURT. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF CONTRIBUTING TO THE DELINQUENCY OF A
MINOR, A MISDEMEANOR PUNISHABLE BY A MAXIMUM SENTENCE OF ONE YEAR. 
WIS. STAT. ANN. SEC. 947.15 (1958).  IN LIEU OF SENTENCE, HE WAS
COMMITTED TO THE "SEX DEVIATE FACILITY," LOCATED IN THE STATE PRISON,
FOR A POTENTIALLY INDEFINITE PERIOD OF TIME, PURSUANT TO THE WISCONSIN
SEX CRIMES ACT.  WIS. STAT. ANN. SEC. 959.15 (1958), AS AMENDED, WIS.
STAT. ANN., C. 975 (1971).  IN THIS PETITION FOR FEDERAL HABEAS CORPUS,
HE SEEKS TO CHALLENGE THE CONSTITUTIONAL VALIDITY OF THE STATUTORY
PROCEDURES FOR COMMITMENT AND THE CONDITIONS OF HIS CONFINEMENT.  THE
DISTRICT COURT DISMISSED HIS PETITION WITHOUT AN EVIDENTIARY HEARING,
ON THE GROUNDS THAT (1) HIS CLAIMS WERE FOR THE MOST PART LACKING IN
MERIT AS A MATTER OA LAW, AND (2) HIS CLAIMS HAD BEEN WAIVED BY HIS
FAILURE TO PRESENT THEM ADEQUATELY TO THE STATE COURTS.  THE COURT OF
APPEALS REFUSED TO CERTIFY PROBABLE CAUSE FOR AN APPEAL, 28 U.S;C.
2253, RELYING NOT ON THE GROUND OF WAIVER BUT SOLELY ON THE GROUND THAT
THE CLAIMS LACKED MERIT.  /1/  WE GRANTED CERTIORARI TO CONSIDER THE
CONSTITUTIONAL CHALLENGE TO THE STATUTE.  401 U.S. 973 (1971).  WE HAVE
CONCLUDED THAT AN EVIDENTIARY HEARING IS NECESSARY TO RESOLVE
PETITIONER'S CONSTITUTIONAL CLAIMS, AND ALSO TO RESOLVE THE QUESTION OF
WAIVER; CONSEQUENTLY WE REMAND THE CASE TO THE DISTRICT COURT FOR A
HEARING.  /2/

        I 

THE WISCONSIN SEX CRIMES ACT PROVIDES THAT AFTER A PERSON IS
CONVICTED OF ANY CRIME, THE COURT MAY CONSIDER WHETHER THE CRIME WAS
"PROBABLY DIRECTLY MOTIVATED BY A DESIRE FOR SEXUAL EXCITEMENT."  IF
THE COURT FINDS SUCH MOTIVATION, IT MAY COMMIT THE DEFENDANT TO THE
DEPARTMENT OF PUBLIC WELFARE (NOW THE DEPARTMENT OF HEALTH AND SOCIAL
SERVICES) FOR A SOCIAL, PHYSICAL, AND MENTAL EXAMINATION.  IF THE
DEPARTMENT RECOMMENDS SPECIALIZED TREATMENT FOR THE DEFENDANT'S "MENTAL
AND PHYSICAL ABERRATIONS," THE COURT MUST HOLD A HEARING ON THE NEED
FOR SUCH TREATMENT.  IF THE STATE ESTABLISHES THE NEED FOR TREATMENT BY
A PREPONDERANCE OF THE EVIDENCE, THE COURT MUST COMMIT THE DEFENDANT TO
THE DEPARTMENT FOR TREATMENT IN LIEU OF SENTENCE, FOR A PERIOD EQUAL TO
THE MAXIMUM SENTENCE AUTHORIZED FOR THE DEFENDANT'S CRIME.  AT THE END
OF THAT PERIOD, THE DEPARTMENT MAY PETITION FOR AN ORDER RENEWING THE
COMMITMENT FOR FIVE YEARS.  AFTER NOTICE AND HEARING, THE COURT MAY
RENEW THE COMMITMENT IF IT FINDS THAT THE DEFENDANT'S DISCHARGE WOULD
BE "DANGEROUS TO THE PUBLIC BECAUSE OF (HIS) MENTAL OR PHYSICAL
DEFICIENCY, DISORDER OR ABNORMALITY."  FURTHER FIVE-YEAR RENEWALS MAY
BE SIMILARLY OBTAINED WITHOUT LIMITATION. 

PETITIONER IS PRESENTLY SUBJECT TO A FIVE-YEAR RENEWAL ORDER,
OBTAINED AT THE EXPIRATION OF HIS ONE-YEAR MAXIMUM SENTENCE.  HIS
PRINCIPAL CLAIMS RELATE TO THE PROCEDURE THAT RESULTED IN THE ORDER
RENEWING HIS COMMITMENT.  IN ADDITION, HE CHALLENGES THE ORIGINAL
COMMITMENT PROCEDURES, AND THE CONDITIONS OF HIS CONFINEMENT. 

A REVIEW OF PETITIONER'S CLAIMS COMPELS US TO CONCLUDE THAT THEY ARE
AT LEAST SUBSTANTIAL ENOUGH TO WARRANT AN EVIDENTIARY HEARING, IN LIGHT
OF THIS COURT'S DECISIONS IN BAXSTROM V. HEROLD, 383 U.S. 107 (1966),
AND SPECHT V. PATTERSON, 386 U.S. 605 (1967).  THUS WE REJECT THE
CONTRARY CONCLUSION OF THE COURT OF APPEALS, IMPLICIT IN ITS DECISION
TO DENY LEAVE TO APPEAL. 

A. ONE OF PETITIONER'S PRINCIPAL ARGUMENTS IS THAT COMMITMENT FOR
COMPULSORY TREATMENT UNDER THE SEX CRIMES ACT, AT LEAST AFTER THE
EXPIRATION OF THE INITIAL COMMITMENT IN LIEU OF SENTENCE, IS
ESSENTIALLY EQUIVALENT TO COMMITMENT FOR COMPULSORY TREATMENT UNDER
WISCONSIN'S MENTAL HEALTH ACT, WIS. STAT. ANN., C. 51 (1957); THAT A
PERSON COMMITTED UNDER THE MENTAL HEALTH ACT HAS A STATUTORY RIGHT TO
HAVE A JURY DETERMINE WHETHER HE MEETS THE STANDARDS FOR COMMITMENT,
WIS. STAT. ANN. SEC. 51.03; AND THAT PETITIONER'S COMMITMENT UNDER THE
SEX CRIMES ACT WITHOUT SUCH A JURY DETERMINATION DEPRIVED HIM OF EQUAL
PROTECTION OF THE LAWS. 

IN BAXSTROM, SUBSTANTIALLY THE SAME ARGUMENT WAS ADVANCED BY A
CONVICTED PRISONER WHO WAS COMMITTED UNDER NEW YORK LAW FOR COMPULSORY
TREATMENT, WITHOUT A JURY TRIAL, AT THE EXPIRATION OF HIS PENAL
SENTENCE.  THIS COURT HELD THAT THE STATE, HAVING MADE A JURY
DETERMINATION GENERALLY AVAILABLE TO PERSONS SUBJECT TO COMMITMENT FOR
COMPULSORY TREATMENT, COULD NOT, CONSISTENT WITH THE EQUAL PROTECTION
CLAUSE, ARBITRARILY WITHHOLD IT FROM A FEW.  383 U.S.,AT 110-112.  THE
COURT RECOGNIZED THAT THE PRISONER'S CRIMINAL RECORD MIGHT BE A
RELEVANT FACTOR IN EVALUATING HIS MENTAL CONDITION, AND IN DETERMINING
THE TYPE OF CARE AND TREATMENT APPROPRIATE FOR HIS CONDITION; IT COULD
NOT, HOWEVER, JUSTIFY DEPRIVING HIM OF A JURY DETERMINATION ON THE
BASIC QUESTION WHETHER HE WAS MENTALLY ILL AND AN APPROPRIATE SUBJECT
FOR SOME KIND OF COMPULSORY TREATMENT. 

SINCE 1880, WISCONSIN HAS RELIED ON A JURY TO DECIDE WHETHER TO
CONFINE A PERSON FOR COMPULSORY PSYCHIATRIC TREATMENT.  /3/  LIKE MOST,
IF NOT ALL, OTHER STATES WITH SIMILAR LEGISLATION, WISCONSIN CONDITIONS
SUCH CONFINEMENT NOT SOLELY ON THE MEDICAL JUDGMENT THAT THE DEFENDANT
IS MENTALLY ILL AND TREATABLE, BUT ALSO ON THE SOCIAL AND LEGAL
JUDGMENT THAT HIS POTENTIAL FOR DOING HARM, TO HIMSELF OR TO OTHERS, IS
GREAT ENOUGH TO JUSTIFY SUCH A MASSIVE CURTAILMENT OF LIBERTY.  /4/  IN
MAKING THIS DETERMINATION, THE JURY SERVES THE CRITICAL FUNCTION OF
INTRODUCING INTO THE PROCESS A LAY JUDGMENT, REFLECTING VALUES
GENERALLY HELD IN THE COMMUNITY, CONCERNING THE KINDS OF POTENTIAL HARM
THAT JUSTIFY THE STATE IN CONFINING A PERSON FOR COMPULSORY TREATMENT. 
/5/ 

COMMITMENT FOR COMPULSORY TREATMENT UNDER THE WISCONSIN SEX CRIMES
ACT APPEARS TO REQUIRE PRECISELY THE SAME KIND OF DETERMINATION,
INVOLVING A MIXTURE OF MEDICAL AND SOCIAL OR LEGAL JUDGMENTS.  /6/  IF
THAT IS SO (AND THAT IS PROPERLY A SUBJECT FOR INQUIRY ON REMAND), THEN
IT IS PROPER TO INQUIRE WHAT JUSTIFICATION EXISTS FOR DEPRIVING PERSONS
COMMITTED UNDER THE SEX CRIMES ACT OF THE JURY DETERMINATION AFFORDED
TO PERSONS COMMITTED UNDER THE MENTAL HEALTH ACT. 

RESPONDENT SEEKS TO JUSTIFY THE DISCRIMINATION ON THE GROUND THAT
COMMITMENT UNDER THE SEX CRIMES ACT IS TRIGGERED BY A CRIMINAL
CONVICTION; THAT SUCH COMMITMENT IS MERELY AN ALTERNATIVE TO PENAL
SENTENCING; AND CONSEQUENTLY THAT IT DOES NOT REQUIRE THE SAME
PROCEDURAL SAFEGUARDS AFFORDED IN A CIVIL COMMITMENT PROCEEDING.  THAT
ARGUMENT ARGUABLY HAS FORCE WITH RESPECT TO AN INITIAL COMMITMENT UNDER
THE SEX CRIMES ACT, WHICH IS IMPOSED IN LIEU OF SENTENCE, AND IS
LIMITED IN DURATION TO THE MAXIMUM PERMISSIBLE SENTENCE.  /7/  THE
ARGUMENT CAN CARRY LITTLE WEIGHT, HOWEVER, WITH RESPECT TO THE
SUBSEQUENT RENEWAL PROCEEDINGS, WHICH RESULT IN FIVE-YEAR COMMITMENT
ORDERS BASED ON NEW FINDINGS OF FACT, AND ARE IN NO WAY LIMITED BY THE
NATURE OF THE DEFENDANT'S CRIME OR THE MAXIMUM SENTENCE AUTHORIZED FOR
THAT CRIME.  THE RENEWAL ORDERS BEAR SUBSTANTIAL RESEMBLANCE TO THE
POST-SENTENCE COMMITMENT THAT WAS AT ISSUE IN BAXSTROM.  MOREOVER, THE
WISCONSIN SUPREME COURT HAS EXPRESSLY HELD THAT EVEN THE INITIAL
COMMITMENT UNDER THE SEX CRIMES ACT IS NOT SIMPLY A SENTENCING
ALTERNATIVE, BUT RATHER AN INDEPENDENT COMMITMENT FOR TREATMENT,
COMPARABLE TO COMMITMENT UNDER THE MENTAL HEALTH ACT.  THE WISCONSIN
COURT HELD, ANTICIPATING THIS COURT'S DECISION IN SPECHT V. PATTERSON,
386 U.S. 605 (1967), THAT A HEARING WAS REQUIRED EVEN FOR THE INITIAL
COMMITMENT UNDER THE SEX CRIMES ACT.  HUEBNER V. STATE, 33 WIS.2D 505,
521-530, 147 N.W.2D 646, 654-658 (1967).  WHILE THE HUEBNER DECISION
WAS GROUNDED IN CONSIDERATIONS OF PROCEDURAL DUE PROCESS, THE WISCONSIN
COURT ALSO NOTED CAREFULLY THE RELEVANCE OF BAXSTROM AND THE EQUAL
PROTECTION CLAUSE TO ITS DECISION.  /8/ 

AN ALTERNATIVE JUSTIFICATION FOR THE DISCRIMINATION MIGHT BE SOUGHT
IN SOME SPECIAL CHARACTERISTIC OF SEX OFFENDERS, WHICH MAY RENDER A
JURY DETERMINATION UNIQUELY INAPPROPRIATE OR UNNECESSARY.  IT APPEARS,
HOWEVER, THAT THE MENTAL HEALTH ACT AND THE SEX CRIMES ACT ARE NOT
MUTUALLY EXCLUSIVE; THAT "ABERRATIONS" WARRANTING COMMITMENT UNDER THE
LATTER MIGHT ALSO AMOUNT TO "MENTAL ILLNESS" WARRANTING COMMITMENT
UNDER THE FORMER.  /9/  THE EQUAL PROTECTION CLAIM WOULD SEEM TO BE
ESPECIALLY PERSUASIVE IF IT DEVELOPS ON REMAND THAT PETITIONER WAS
DEPRIVED OF A JURY DETERMINATION, OR OF OTHER PROCEDURAL PROTECTIONS,
MERELY BY THE ARBITRARY DECISION OF THE STATE TO SEEK HIS COMMITMENT
UNDER ONE STATUTE RATHER THAN THE OTHER.  /10/ 

B. THE REMAND HEARING WILL ALSO PROVIDE AN OPPORTUNITY FOR THE
DISTRICT COURT TO CONSIDER FACTUAL QUESTIONS RELEVANT TO PETITIONER'S
OTHER CLAIMS.  IN ADDITION TO THE LACK OF A JURY TRIAL, PETITIONER
CHALLENGES SEVERAL OTHER ASPECTS OF THE HEARING THAT LED TO THE RENEWAL
OF HIS COMMITMENT.  HE CLAIMS HE WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL, AND HE WAS DENIED THE OPPORTUNITY TO BE PRESENT AND TO
CONFRONT THE STATE'S WITNESSES.  THESE CLAIMS ARE TIED INEXTRICABLY TO
THE QUESTION OF POSSIBLE WAIVER OF RIGHTS AT THAT HEARING, A QUESTION
THAT CLEARLY REQUIRES FURTHER EXPLORATION ON REMAND, SEE INFRA, AT 514
517. 

PETITIONER ALSO CHALLENGES THE ADEQUACY OF THE HEARING THAT LED TO
HIS INITIAL COMMITMENT.  THE RECORD SHOWS THAT PETITIONER WAS NOT
REPRESENTED BY COUNSEL AT THAT INITIAL COMMITMENT, APP. 11-12, AND THUS
THE QUESTION ARISES WHETHER THE STATE COURT EVER IN FACT HELD THE
HEARING REQUIRED BY HUEBNER AND SPECHT, AND NOW BY STATUTE AS WELL. 
MOREOVER, PETITIONER CLAIMS THAT, EVEN IF THERE WAS SUCH A HEARING, IT
PROVIDED AT MOST AN OPPORTUNITY TO CHALLENGE THE FINDING THAT HE NEEDED
TREATMENT, AND NOT AN OPPORTUNITY TO CHALLENGE THE INITIAL
DETERMINATION THAT HIS CRIME WAS SEXUALLY MOTIVATED, A DETERMINATION
THAT WAS A NECESSARY PREREQUISITE TO THE INVOCATION OF THE WHOLE
COMMITMENT PROCESS.  RESPONDENT ARGUES THAT ANY DEFECT IN THE INITIAL
COMMITMENT HAS BEEN RENDERED MOOT BY THE INTERVENING RENEWAL HEARING. 
/11/  IT MAY BE, HOWEVER, THAT THE INITIAL COMMITMENT HAS CONTINUING
EFFECTS THAT CANNOT BE REMEDIED BY A MERE ATTACK ON THE SUBSEQUENT
RENEWAL ORDER.  /12/  ON REMAND, THE DISTRICT COURT SHOULD RESOLVE THIS
THRESHOLD QUESTION OF MOOTNESS, AND IF THE COURT DETERMINES THAT THE
MERITS OF THESE CLAIMS ARE PROPERLY BEFORE IT, THEN IT SHOULD PROCEED
TO RESOLVE THE RELEVANT FACTUAL AND LEGAL QUESTIONS. 

FINALLY, PETITIONER CHALLENGES THE PLACE AND CHARACTER OF HIS
CONFINEMENT UNDER THE SEX CRIMES ACT.  HE OBJECTS TO THE FACT THAT HE
WAS COMMITTED TO THE STATE PRISON, RATHER THAN TO A MENTAL HOSPITAL, AS
HE WOULD HAVE BEEN UNDER THE MENTAL HEALTH ACT; AND HE CONTENDS THAT NO
TREATMENT WAS PROVIDED AT THE PRISON, NOTWITHSTANDING THE FACT THAT HE
WAS IN A PRISON UNIT LABELED "SEX DEVIATE FACILITY."  THESE MATTERS, IN
HIS VIEW, DEPRIVED HIM OF EQUAL PROTECTION AND DUE PROCESS.  RESPONDENT
ARGUES THAT THIS ASPECT OF PETITIONER'S CLAIM HAS BECOME MOOT, BECAUSE
(1) PETITIONER HAS BEEN RELEASED ON PAROLE, SEE N. 2, SUPRA, AND (2)
THE STATE HAS ESTABLISHED A NEW TREATMENT FACILITY AT THE STATE MENTAL
HOSPITAL, TO WHICH PETITIONER MIGHT BE COMMITTED IF HIS PAROLE WERE
REVOKED.  /13/  ON REMAND, THE PARTIES WILL HAVE AMPLE OPPORTUNITY TO
DEVELOP THE FACTS RELEVANT TO THE QUESTION OF MOOTNESS, AS WELL AS TO
PETITIONER'S SUBSTANTIAL CONSTITUTIONAL CLAIMS. 

        II 

PLAINLY, THEN, WE CANNOT ACCEPT AS A GROUND FOR DECISION THE
CONCLUSION OF THE COURT OF APPEALS THAT PETITIONER'S CLAIMS ARE TOO
FRIVOLOUS TO REQUIRE A HEARING.  AN ALTERNATIVE GROUND WAS RELIED ON BY
THE DISTRICT COURT, HOWEVER, AND RESPONDENT PRESSES THAT ARGUMENT
HERE.  THE DISTRICT COURT HELD THAT PETITIONER HAD WAIVED HIS
CONSTITUTIONAL CLAIMS BY FAILING TO PRESENT THEM PROPERLY TO THE STATE
COURTS.  IN ORDER TO CONSIDER THIS ARGUMENT, IT WILL BE NECESSARY TO
REVIEW THE SOMEWHAT COMPLICATED PROCEDURAL HISTORY OF THIS CASE. 

PETITIONER FIRST SOUGHT TO CHALLENGE THE CONSTITUTIONALITY OF THE
SEX CRIMES ACT AT THE HEARING ON THE STATE'S PETITION TO RENEW HIS
COMMITMENT BEYOND THE INITIAL ONE-YEAR PERIOD.  HIS APPOINTED COUNSEL
ARGUED THAT A NEW COMMITMENT ORDER WOULD CONSTITUTE A PROHIBITED SECOND
PUNISHMENT FOR A SINGLE OFFENSE, AND INDICATED THAT SHE WAS MAKING A
BROAD CONSTITUTIONAL CHALLENGE TO THE SEX CRIMES ACT.  THE STATE TRIAL
JUDGE ADJOURNED THE MATTER TO PERMIT THE PARTIES TO BRIEF THE
CONSTITUTIONAL ISSUES.  WHEN PETITIONER'S COUNSEL FAILED TO SUBMIT A
BRIEF, OR TO TAKE ANY FURTHER ACTION ON BEHALF OF PETITIONER, THE STATE
COURT CONCLUDED THAT THE BARE PETITION OF THE DEPARTMENT OF PUBLIC
WELFARE WAS SUFFICIENT TO SUPPORT AN ORDER CONTINUING PETITIONER'S
CONFINEMENT.  /14/  NO APPEAL WAS TAKEN FROM THAT ORDER.  /15/ 

PETITIONER SUBSEQUENTLY FILED A PETITION FOR HABEAS CORPUS, WITHOUT
THE ASSISTANCE OF COUNSEL, IN THE WISCONSIN SUPREME COURT, WHICH AT
THAT TIME WAS THE ONLY STATE COURT AUTHORIZED TO GRANT HABEAS CORPUS
RELIEF TO STATE PRISONERS.  /16/  THE PETITION WAS SUMMARILY DISMISSED
WITHOUT A RESPONSE FROM THE STATE OR AN OPINION BY THE COURT.  WHILE
THE PETITION IS NOT IN THE RECORD BEFORE US, BOTH PARTIES REPRESENT
THAT IT WAS SUBSTANTIALLY IDENTICAL TO THE SUBSEQUENT PETITION FOR
FEDERAL HABEAS CORPUS THAT INITIATED THE PRESENT PROCEEDINGS.  /17/ 
THE FEDERAL PETITION, ALSO PREPARED WITHOUT THE ASSISTANCE OF COUNSEL,
ALLEGES, IN ADDITION TO THE CLAIM OF DOUBLE JEOPARDY, A CLAIM THAT
PETITIONER WAS DENIED EQUAL PROTECTION AND DUE PROCESS, REFERRING
SPECIFICALLY TO, INTER ALIA, THE LACK OF A JURY TRIAL, AND CONFINEMENT
IN THE STATE PRISON. 

THE DISTRICT COURT HELD THAT THE FAILURE OF PETITIONER'S TRIAL
COUNSEL TO FILE A BRIEF IN THE STATE TRIAL COURT AMOUNTED TO A
DELIBERATE STRATEGIC DECISION TO ABANDON PETITIONER'S CONSTITUTIONAL
CLAIMS; IT JUSTIFIED THE WISCONSIN SUPREME COURT'S DENIAL OF POST
CONVICTION RELIEF; AND IT OPERATED AS A BAR TO FEDERAL RELIEF AS WELL. 
WE CANNOT AGREE WITH RESPONDENT OR THE DISTRICT COURT THAT THE PRESENT
RECORD SHOWS THE DELIBERATE BYPASS OF STATE REMEDIES THAT MIGHT BAR
FEDERAL CONSIDERATION OF PETITIONER'S CLAIMS.  WE CONCLUDE, HOWEVER,
THAT RESPONDENT SHOULD BE GIVEN AN OPPORTUNITY TO DEVELOP THE RELEVANT
FACTS.  ACCORDINGLY, THE CASE MUST BE REMANDED FOR AN EVIDENTIARY
HEARING ON THIS POINT, AS WELL AS ON THE MERITS OF SUCH CLAIMS AS MAY
BE RIPE FOR FEDERAL DETERMINATION. 

THIS COURT HAS REPEATEDLY MADE IT PLAIN THAT NOT EVERY STATE
PROCEDURAL DEFAULT BARS FEDERAL HABEAS CORPUS RELIEF.  TITLE 28 U.S.C.
2254(B), (C), WHICH REQUIRE A STATE PRISONER TO EXHAUST AVAILABLE STATE
REMEDIES, ARE LIMITED IN THEIR APPLICATION TO THOSE STATE REMEDIES
STILL OPEN TO THE HABEAS APPLICANT AT THE TIME HE FILES HIS APPLICATION
IN FEDERAL COURT.  FAY V. NOIA, 372 U.S. 391, 434-435 (1963); SEE
PICARD V. CONNOR, 404 U.S. 270, 272 N. 3 (1971).  IN THIS CASE IT
APPEARS THAT PETITIONER HAS MET THE REQUIREMENTS OF THE EXHAUSTION
RULE, INASMUCH AS NO DIRECT APPEAL IS PRESENTLY AVAILABLE TO HIM, AND
HE HAS TAKEN HIS CLAIM FOR POST-CONVICTION RELIEF TO THE HIGHEST STATE
COURT.  /18/ 

THIS COURT HAS ALSO HELD, HOWEVER, THAT A FEDERAL HABEAS JUDGE MAY
IN HIS DISCRETION DENY RELIEF TO AN APPLICANT WHO HAS DELIBERATELY
BYPASSED THE ORDERLY PROCEDURE OF THE STATE COURTS, ON THE GROUND THAT
IN SO DOING HE HAS FORFEITED HIS STATE COURT REMEDIES.  FAY V. NOIA,
SUPRA, AT 438-439.  BUT SUCH A WAIVER MUST BE THE PRODUCT OF AN
UNDERSTANDING AND KNOWING DECISION BY THE PETITIONER HIMSELF, WHO IS
NOT NECESSARILY BOUND BY THE DECISION OR DEFAULT OF HIS COUNSEL.  AN
EVIDENTIARY HEARING WILL ORDINARILY BE REQUIRED BEFORE THE DISTRICT
COURT CAN DETERMINE WHETHER PETITIONER MADE A DELIBERATE STRATEGIC
WAIVER OF HIS CLAIM IN STATE COURT.  IN THIS CASE, A HEARING IS
NECESSARY TO DETERMINE (1) THE REASON FOR COUNSEL'S FAILURE TO FILE A
BRIEF OR TO TAKE FURTHER ACTION IN THE STATE COURTS, AND (2) THE EXTENT
OF PETITIONER'S KNOWLEDGE AND PARTICIPATION IN THAT DECISION.  IF THE
DISTRICT COURT CANNOT FIND PERSUASIVE EVIDENCE OF A KNOWING AND
INTELLIGENT WAIVER ON THE PART OF PETITIONER HIMSELF, THEN THE COURT
SHOULD PROCEED TO CONSIDER PETITIONER'S CONSTITUTIONAL CLAIMS. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. 

   IT IS SO ORDERED. 

/1/  THE COURT OF APPEALS SAID IN PERTINENT PART: 

"PLAINTIFF ALSO CLAIMS VARIOUS PROCEDURAL RIGHTS TO WHICH HE WOULD
BE ENTITLED IN THE COURSE OF A SEPARATE PROCEEDING FOR CONVICTION OF AN
OFFENSE, BUT THE CONTINUATION OF COMMITMENT IS NOT SUCH (A)
PROCEEDING."  APP. 58. 

/2/  AFTER THE PETITION FOR CERTIORARI HAD BEEN FILED, IT APPEARS
THAT PETITIONER WAS RELEASED ON PAROLE TO THE CUSTODY OF THE SECRETARY
OF THE STATE DEPARTMENT OF HEALTH AND SOCIAL SERVICES.  THAT CHANGE IN
HIS CUSTODY DOES NOT NECESSARILY MOOT HIS CLAIMS; IT SIMPLY REQUIRES
THE SUBSTITUTION OF THE SECRETARY FOR THE PRISON WARDEN AS RESPONDENT,
WHICH CAN BE ACCOMPLISHED BY MOTION UNDER RULE 49 OF THIS COURT, OR BY
THE DISTRICT COURT ON REMAND. 

/3/  THE JURY-TRIAL PROVISION FIRST APPEARED IN C. 266, WIS. LAWS
1880, PP. 299, 301; COMPARE WIS. REV. STAT. SEC. 593, P. 208 (1878),
WITH WIS. REV. STAT. SEC. 593, P. 114 (1883 SUPP.). 

/4/  THE MENTAL HEALTH ACT AUTHORIZES COMMITMENT OF A PERSON FOR
COMPULSORY TREATMENT IF THE COURT OF JURY FINDS THAT HE IS (1) MENTALLY
ILL, AND (2) A "PROPER SUBJECT FOR CUSTODY AND TREATMENT."  WIS. STAT.
ANN. SECS. 51.02(5), 51.03 (1957).  THE SOCIAL AND LEGAL ASPECTS OF THE
DETERMINATION ARE IMPLICIT NOT ONLY IN THE DETERMINATION OF WHO IS A
"PROPER SUBJECT FOR CUSTODY AND TREATMENT," BUT ALSO IN THE DEFINITION
OF MENTAL ILLNESS ITSELF, CONTAINED IN THE INTERSTATE COMPACT ON MENTAL
HEALTH, AND RECENTLY ADOPTED BY WISCONSIN, AS WELL AS BY MANY OTHER
STATES: 

"'MENTAL ILLNESS' MEANS MENTAL DISEASE TO SUCH EXTENT THAT A PERSON
SO AFFLICTED REQUIRES CARE AND TREATMENT FOR HIS OWN WELFARE, OR THE
WELFARE OF OTHERS, OR OF THE COMMUNITY."  WIS. STAT. ANN. SEC. 51.75,
ART. IIF) (SUPP. 1971). 

/5/  IN 1926 THE WISCONSIN LEGISLATURE VOTED TO ELIMINATE THE JURY
TRIAL PROVISION FROM THE MENTAL HEALTH ACT, AT THE REQUEST OF THE STATE
MEDICAL SOCIETY, BUT THE GOVERNOR VETOED THE BILL.  AGAIN IN 1947 AN
ATTEMPT WAS MADE TO ELIMINATE THE JURY TRIAL.  A LEGISLATIVE COMMITTEE
REPORTED THAT JURIES TOO OFTEN REFUSED TO ORDER COMMITMENT WHEN THE
MEDICAL EXPERTS THOUGHT IT APPROPRIATE.  WIS. STAT. 1947, C. 51,
GENERAL COMMENT OF INTERIM COMMITTEE, AT 802.  THIS TIME THE STATE
LEGISLATURE REFUSED TO DO AWAY WITH JURY TRIALS, HOWEVER, AND INDEED
WHEN THE LEGISLATURE ENACTED IN THAT SAME YEAR A NEW STATUTE FOR THE
COMPULSORY TREATMENT OF "SEX PSYCHOPATHS," THE NEW STATUTE CONTAINED A
PROVISION FOR JURY TRIAL PARALLELING THE PROVISION IN THE MENTAL HEALTH
ACT.  WIS. STAT. 1947, SEC. 51.37(4).  NOT UNTIL 1951, WITH THE PASSAGE
OF A NEW SEX CRIMES ACT, DID THE PROVISION FOR JURY TRIAL DISAPPEAR
FROM THE LEGISLATION GOVERNING THE COMPULSORY TREATMENT OF SEX
OFFENDERS.  WIS. STAT. 1951, SEC. 340.485(14)(A). 

/6/  THE SEX CRIMES ACT AUTHORIZES AN INITIAL COMMITMENT OF AN
OTHERWISE ELIGIBLE PERSON FOR COMPULSORY TREATMENT IF THE COURT FINDS
THAT HE IS IN NEED OF "SPECIALIZED TREATMENT FOR HIS MENTAL OR PHYSICAL
ABERRATIONS," WIS. STAT. ANN. SEC. 975.06(1)-(2) (1971), WHICH RESTATED
WIS. STAT. ANN. SEC. 959.15(5)-(6), ADDING A PROVISION FOR A JUDICIAL
HEARING, AS REQUIRED BY THE WISCONSIN SUPREME COURT IN HUEBNER V.
STATE, 33 WIS.2D 505, 147 N.W.2D 646 (1967).  THE STATUTE AUTHORIZES
RENEWAL OF THE COMMITMENT ORDER IF THE COURT FINDS THAT DISCHARGE WOULD
BE "DANGEROUS TO THE PUBLIC BECAUSE OF THE PERSON'S MENTAL OR PHYSICAL
DEFICIENCY, DISORDER OR ABNORMALITY."  WIS. STAT. ANN. SEC. 975.14
(1971), FORMERLY WIS. STAT. ANN. SEC. 959.15(14)(B) (1958). 

/7/  TWO COURTS OF APPEALS HAVE IMPLIED THE CONTRARY, SEE MATTHEWS
V. HARDY, 137 U.S.APP.D.C. 39, 420 F.2D 607 (1969), CERT. DENIED, 397
U.S. 1010 (1970), AND UNITED STATES EX REL. SCHUSTER V. HEROLD, 410
F.2D 1071 (CA2), CERT. DENIED, 396 U.S. 847 (1969).  THIS CASE DOES NOT
PRESENT THE CLAIM OF RIGHT TO A JURY TRIAL AT THE INITIAL COMMITMENT,
HOWEVER, AND WE INTIMATE NO VIEW ON THAT QUESTION HERE.  PETITIONER'S
ONLY OBJECTIONS TO THE INITIAL COMMITMENT ARE DISCUSSED INFRA, AT 513. 

/8/  FOLLOWING HUEBNER, PETITIONER RESTS HIS CLAIM ALTERNATIVELY ON
SPECHT AND THE DUE PROCESS CLAUSE, OR ON BAXSTROM AND THE EQUAL
PROTECTION CLAUSE.  THE WISCONSIN SUPREME COURT HAS, HOWEVER, REJECTED
THE ARGUMENT THAT EITHER BAXSTROM OR HUEBNER REQUIRES THE STATE TO
EXTEND TO SEX OFFENDERS THE RIGHT TO A JURY TRIAL AT THE HEARING ON THE
PETITION FOR RENEWAL OF COMMITMENT.  BUCHANAN V. STATE, 41 WIS.2D 460,
164 N.W.2D 253 (1969).  IN REJECTING THE EQUAL PROTECTION CLAIM, THE
COURT RELIED ON DISTINCTIONS SO ELUSIVE THAT, IF THEY CAN SUPPORT THE
DISCRIMINATION AT ALL, THEY WILL REQUIRE FURTHER FACTUAL DEVELOPMENT AT
THE REMAND HEARING IN THIS CASE.  THE JURY QUESTION WAS ALSO RAISED,
BUT NOT DECIDED, IN HILL V. BURKE, 289 F.SUPP.  921 (WD WIS. 1968),
AFF'D, 422 F.2D 1195 (CA7 1970). 

/9/  TR. OF ORAL ARG. 22; RESPONDENT'S SUPPLEMENTAL MEMORANDUM,
FILED FEB. 25, 1971, PP. 3-4.  COMPARE THE CRITERIA FOR COMMITMENT IN
N. 4 WITH THE CRITERIA IN N. 6, SUPRA. 

/10/  BAXSTROM V. HEROLD, SUPRA, AT 111; CROSS V. HARRIS, 135
U.S.APP.D.C. 259, 262, 418 F.2D 1095, 1098 (1969); MILLARD V. HARRIS,
132 U.S.APP.D.C. 146, 152, 406 F.2D 964, 970 (1968). 

/11/  SEE STATE EX REL. STROETZ V. BURKE, 28 WIS.2D 195, 136 N.W.2D
829 (1965). 

/12/ FOR EXAMPLE, IF PETITIONER CAN SUCCESSFULLY CHALLENGE THE
INITIAL FINDING THAT HIS CRIME WAS SEXUALLY MOTIVATED, THEN HIS
COMMITMENT UNDER THE SEX CRIMES ACT WOULD BE IMPROPER EVEN IF HE MEETS
THE STATUTORY STANDARDS FOR CONTINUED COMMITMENT, I.E., EVEN IF HIS
DISCHARGE WOULD BE "DANGEROUS TO THE PUBLIC BECAUSE OF . . . MENTAL OR
PHYSICAL . . . ABNORMALITY."  IN THAT CASE, HE COULD PROPERLY BE
COMMITTED ONLY UNDER THE MENTAL HEALTH ACT, IN ACCORDANCE WITH ITS
PROCEDURES AND CRITERIA FOR COMMITMENT, AND ITS CONDITIONS OF
CONFINEMENT. 

/13/  SEE BRIEF FOR RESPONDENT 28-30, AND APPENDIX TO BRIEF 140
156. 

/14/  THE STATE COURT RELIED LARGELY ON PETITIONER'S FAILURE TO
INTRODUCE ANY EVIDENCE IN HIS BEHALF.  IN THIS CONNECTION IT IS
NOTEWORTHY THAT THE RECORD DOES NOT SHOW ANY EVIDENCE INTRODUCED BY THE
STATE, EITHER; MOREOVER, UNDER WISCONSIN LAW, THE STATE HAS THE BURDEN
OF PROOF IN SUCH PROCEEDINGS.  GOETSCH V; STATE, 45 WIS.2D 285, 172
N.W.2D 688 (1969) (DECIDED AFTER THE COMMITMENT HEARING IN THIS CASE). 

/15/  AN APPEAL IS AUTHORIZED BY WIS. STAT. ANN. SEC. 975.16,
FORMERLY WIS. STAT. ANN. SEC. 959.15(16). 

/16/  WIS. STAT. ANN., C. 292 (1958), WHICH HAS BEEN REPLACED BY A
COMPREHENSIVE POST-CONVICTION REVIEW STATUTE, WIS. STAT. ANN. SEC.
974.06 (1971). 

/17/  ON REMAND, THE DISTRICT COURT WILL HAVE THE OPPORTUNITY TO
ASCERTAIN PRECISELY WHAT CLAIMS WERE PRESENTED IN THE STATE HABEAS
PETITION. 

/18/ THERE IS, OF COURSE, NO REQUIREMENT THAT PETITIONER FILE
REPETITIOUS APPLICATIONS IN THE STATE COURTS.  WILWORDING V. SWENSON,
404 U.S. 249 (1971); BROWN V. ALLEN, 344 U.S. 443, 448 N. 3 (1953). 
THE QUESTION ON REMAND IS WHETHER ANY OF PETITIONER'S CLAIMS IS SO
CLEARLY DISTINCT FROM THE CLAIMS HE HAS ALREADY PRESENTED TO THE STATE
COURTS THAT IT MAY FAIRLY BE SAID THAT THE STATE COURTS HAVE HAD NO
OPPORTUNITY TO PASS ON THE CLAIM; AND IF SO, WHETHER THERE IS PRESENTLY
AVAILABLE A STATE FORUM IN WHICH HE CAN EFFECTIVELY PRESENT THE CLAIM. 

MOREOVER, SOME OR ALL OF PETITIONER'S CLAIMS MAY BE ENTITLED TO BE
TREATED AS CLAIMS FOR RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C.
1983, IN WHICH CASE NO EXHAUSTION IS REQUIRED.  WILWORDING V. SWENSON,
SUPRA. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

IRVIN B. CHARNE, BY APPOINTMENT OF THE COURT, 402 U.S. 927, ARGUED
THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

GEORGE L. FREDERICK, ASSISTANT ATTORNEY GENERAL OF WISCONSIN, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE ROBERT W. WARREN,
ATTORNEY GENERAL, AND MARY V. BOWMAN, ASSISTANT ATTORNEY GENERAL. 
..END :













DUNN V. BLUMSTEIN, 405 U.S. 330 


       DUNN, GOVERNOR OF TENNESSEE, ET AL. V. BLUMSTEIN

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF TENNESSEE

        NO. 70-13.  ARGUED NOVEMBER 16, 1971-- DECIDED MARCH 21,

   1972 


TENNESSEE CLOSES ITS REGISTRATION BOOKS 30 DAYS BEFORE AN ELECTION,
BUT REQUIRES RESIDENCE IN THE STATE FOR ONE YEAR AND IN THE COUNTY FOR
THREE MONTHS AS PREREQUISITES FOR REGISTRATION TO VOTE.  APPELLEE
CHALLENGED THE CONSTITUTIONALITY OF THE DURATIONAL RESIDENCE
REQUIREMENTS, AND A THREE-JUDGE DISTRICT COURT HELD THEM
UNCONSTITUTIONAL ON THE GROUNDS THAT THEY IMPERMISSIBLY INTERFERED WITH
THE RIGHT TO VOTE AND CREATED A "SUSPECT" CLASSIFICATION PENALIZING
SOME TENNESSEE RESIDENTS BECAUSE OF RECENT INTERSTATE MOVEMENT. 
TENNESSEE ASSERTS THAT THE REQUIREMENTS ARE NEEDED TO INSURE THE PURITY
OF THE BALLOT BOX AND TO HAVE KNOWLEDGEABLE VOTERS.  HELD:  THE
DURATIONAL RESIDENCE REQUIREMENTS ARE VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, AS THEY ARE NOT NECESSARY TO
FURTHER A COMPELLING STATE INTEREST.  PP. 335-360. 

(A) SINCE THE REQUIREMENTS DENY SOME CITIZENS THE RIGHT TO VOTE,
"THE COURT MUST DETERMINE WHETHER THE EXCLUSIONS ARE NECESSARY TO
PROMOTE A COMPELLING STATE INTEREST."  KRAMER V. UNION FREE SCHOOL
DISTRICT, 395 U.S. 621, 627.  PP. 336-337. 

(B) ABSENT A COMPELLING STATE INTEREST, TENNESSEE MAY NOT BURDEN THE
RIGHT TO TRAVEL BY PENALIZING THOSE BONA FIDE RESIDENTS WHO HAVE
RECENTLY TRAVELED FROM ONE JURISDICTION TO ANOTHER.  PP. 338-342. 

(C) A PERIOD OF 30 DAYS APPEARS TO BE AMPLE TO COMPLETE WHATEVER
ADMINISTRATIVE TASKS ARE NEEDED TO PREVENT FRAUD AND INSURE THE PURITY
OF THE BALLOT BOX.  PP. 345-349. 

(D) SINCE THERE ARE ADEQUATE MEANS OF ASCERTAINING BONA FIDE
RESIDENCE ON AN INDIVIDUALIZED BASIS, THE STATE MAY NOT CONCLUSIVELY
PRESUME NONRESIDENCE FROM FAILURE TO SATISFY THE WAITING-PERIOD
REQUIREMENTS OF DURATIONAL RESIDENCE LAWS.  PP. 349-354. 

(E) TENNESSEE HAS NOT ESTABLISHED A SUFFICIENT RELATIONSHIP BETWEEN
ITS INTEREST IN AN INFORMED ELECTORATE AND THE FIXED DURATIONAL
RESIDENCE REQUIREMENTS.  PP. 354-360. 

337 F.SUPP.  323, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, STEWART, AND WHITE, JJ., JOINED.  BLACKMUN, J., FILED AN
OPINION CONCURRING IN THE RESULT, POST, P. 360.  BURGER, C.J., FILED A
DISSENTING OPINION, POST, P. 363.  POWELL AND REHNQUIST, JJ., TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

VARIOUS TENNESSEE PUBLIC OFFICIALS (HEREINAFTER TENNESSEE) APPEAL
FROM A DECISION BY A THREE-JUDGE FEDERAL COURT HOLDING THAT TENNESSEE'S
DURATIONAL RESIDENCE REQUIREMENTS FOR VOTING VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION.  THE ISSUE ARISES
IN A CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF BROUGHT BY
APPELLEE JAMES BLUMSTEIN.  BLUMSTEIN MOVED TO TENNESSEE ON JUNE 12,
1970, TO BEGIN EMPLOYMENT AS AN ASSISTANT PROFESSOR OF LAW AT
VANDERBILT UNIVERSITY IN NASHVILLE.  WITH AN EYE TOWARD VOTING IN THE
UPCOMING AUGUST AND NOVEMBER ELECTIONS, HE ATTEMPTED TO REGISTER TO
VOTE ON JULY 1, 1970.  THE COUNTY REGISTRAR REFUSED TO REGISTER HIM, ON
THE GROUND THAT TENNESSEE LAW AUTHORIZES THE REGISTRATION OF ONLY THOSE
PERSONS WHO, AT THE TIME OF THE NEXT ELECTION, WILL HAVE BEEN RESIDENTS
OF THE STATE FOR A YEAR AND RESIDENTS OF THE COUNTY FOR THREE MONTHS. 

AFTER EXHAUSTING STATE ADMINISTRATIVE REMEDIES, BLUMSTEIN BROUGHT
THIS ACTION CHALLENGING THESE RESIDENCE REQUIREMENTS ON FEDERAL
CONSTITUTIONAL GROUNDS.  /1/  A THREE-JUDGE COURT, CONVENED PURSUANT TO
28 U.S.C. 2281, 2284, CONCLUDED THAT TENNESSEE'S DURATIONAL RESIDENCE
REQUIREMENTS WERE UNCONSTITUTIONAL (1) BECAUSE THEY IMPERMISSIBLY
INTERFERED WITH THE RIGHT TO VOTE AND (2) BECAUSE THEY CREATED A
"SUSPECT" CLASSIFICATION PENALIZING SOME TENNESSEE RESIDENTS BECAUSE OF
RECENT INTERSTATE MOVEMENT.  /2/  337 F.SUPP.  323 (MD TENN. 1970).  WE
NOTED PROBABLE JURISDICTION, 401 U.S. 934 (1971).  FOR THE REASONS THAT
FOLLOW, WE AFFIRM THE DECISION BELOW.  /3/

I 

THE SUBJECT OF THIS LAWSUIT IS THE DURATIONAL RESIDENCE
REQUIREMENT.  APPELLEE DOES NOT CHALLENGE TENNESSEE'S POWER TO RESTRICT
THE VOTE TO BONA FIDE TENNESSEE RESIDENTS.  NOR HAS TENNESSEE EVER
DISPUTED THAT APPELLEE WAS A BONA FIDE RESIDENT OF THE STATE AND COUNTY
WHEN HE ATTEMPTED TO REGISTER.  /4/  BUT TENNESSEE INSISTS THAT, IN
ADDITION TO BEING A RESIDENT, A WOULD-BE VOTER MUST HAVE BEEN A
RESIDENT FOR A YEAR IN THE STATE AND THREE MONTHS IN THE COUNTY.  IT IS
THIS ADDITIONAL DURATIONAL RESIDENCE REQUIREMENT THAT APPELLEE
CHALLENGES. 

DURATIONAL RESIDENCE LAWS PENALIZE THOSE PERSONS WHO HAVE TRAVELED
FROM ONE PLACE TO ANOTHER TO ESTABLISH A NEW RESIDENCE DURING THE
QUALIFYING PERIOD.  SUCH LAWS DIVIDE RESIDENTS INTO TWO CLASSES, OLD
RESIDENTS AND NEW RESIDENTS, AND DISCRIMINATE AGAINST THE LATTER TO THE
EXTENT OF TOTALLY DENYING THEM THE OPPORTUNITY TO VOTE.  /5/  THE
CONSTITUTIONAL QUESTION PRESENTED IS WHETHER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT PERMITS A STATE TO DISCRIMINATE IN
THIS WAY AMONG ITS CITIZENS. 

TO DECIDE WHETHER A LAW VIOLATES THE EQUAL PROTECTION CLAUSE, WE
LOOK, IN ESSENCE, TO THREE THINGS:  THE CHARACTER OF THE CLASSIFICATION
IN QUESTION; THE INDIVIDUAL INTERESTS AFFECTED BY THE CLASSIFICATION;
AND THE GOVERNMENTAL INTERESTS ASSERTED IN SUPPORT OF THE
CLASSIFICATION.  CF. WILLIAMS V. RHODES, 393 U.S. 23, 30 (1968).  IN
CONSIDERING LAWS CHALLENGED UNDER THE EQUAL PROTECTION CLAUSE, THIS
COURT HAS EVOLVED MORE THAN ONE TEST, DEPENDING UPON THE INTEREST
AFFECTED OR THE CLASSIFICATION INVOLVED.  /6/  FIRST, THEN, WE MUST
DETERMINE WHAT STANDARD OF REVIEW IS APPROPRIATE.  IN THE PRESENT CASE,
WHETHER WE LOOK TO THE BENEFIT WITHHELD BY THE CLASSIFICATION (THE
OPPORTUNITY TO VOTE) OR THE BASIS FOR THE CLASSIFICATION (RECENT
INTERSTATE TRAVEL) WE CONCLUDE THAT THE STATE MUST SHOW A SUBSTANTIAL
AND COMPELLING REASON FOR IMPOSING DURATIONAL RESIDENCE REQUIREMENTS. 

      A 

DURATIONAL RESIDENCE REQUIREMENTS COMPLETELY BAR FROM VOTING ALL
RESIDENTS NOT MEETING THE FIXED DURATIONAL STANDARDS.  BY DENYING SOME
CITIZENS THE RIGHT TO VOTE, SUCH LAWS DEPRIVE THEM OF "'A FUNDAMENTAL
POLITICAL RIGHT, . . . PRESERVATIVE OF ALL RIGHTS.'"  REYNOLDS V. SIMS,
377 U.S. 533, 562 (1964).  THERE IS NO NEED TO REPEAT NOW THE LABORS
UNDERTAKEN IN EARLIER CASES TO ANALYZE THIS RIGHT TO VOTE AND TO
EXPLAIN IN DETAIL THE JUDICIAL ROLE IN REVIEWING STATE STATUTES THAT
SELECTIVELY DISTRIBUTE THE FRANCHISE.  IN DECISION AFTER DECISION, THIS
COURT HAS MADE CLEAR THAT A CITIZEN HAS A CONSTITUTIONALLY PROTECTED
RIGHT TO PARTICIPATE IN ELECTIONS ON AN EQUAL BASIS WITH OTHER CITIZENS
IN THE JURISDICTION.  SEE, E.G., EVANS V. CORNMAN, 398 U.S. 419, 421
422, 426 (1970); KRAMER V. UNION FREE SCHOOL DISTRICT, 395 U.S. 621,
626-628 (1969); CIPRIANO V. CITY OF HOUMA, 395 U.S. 701, 706 (1969);
HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663, 667 (1966);
CARRINGTON V. RASH, 380 U.S. 89, 93-94 (1965); REYNOLDS V. SIMS, SUPRA.
THIS "EQUAL RIGHT TO VOTE," EVANS V. CORNMAN, SUPRA, AT 426, IS NOT
ABSOLUTE; THE STATES HAVE THE POWER TO IMPOSE VOTER QUALIFICATIONS, AND
TO REGULATE ACCESS TO THE FRANCHISE IN OTHER WAYS.  SEE, E.G.,
CARRINGTON V. RASH, SUPRA, AT 91; OREGON V. MITCHELL, 400 U.S. 112, 144
(OPINION OF DOUGLAS, J.), 241 (SEPARATE OPINION OF BRENNAN, WHITE, AND
MARSHALL, JJ.), 294 (OPINION OF STEWART, J., CONCURRING AND DISSENTING,
WITH WHOM BURGER, C.J., AND BLACKMUN, J;, JOINED).  BUT, AS A GENERAL
MATTER, "BEFORE THAT RIGHT (TO VOTE) CAN BE RESTRICTED, THE PURPOSE OF
THE RESTRICTION AND THE ASSERTEDLY OVERRIDING INTERESTS SERVED BY IT
MUST MEET CLOSE CONSTITUTIONAL SCRUTINY."  EVANS V. CORNMAN, SUPRA, AT
422; SEE BULLOCK V. CARTER, ANTE, P. 134, AT 143. 

TENNESSES URGES THAT THIS CASE IS CONTROLLED BY DRUEDING V. DEVLIN,
380 U.S. 125 (1965).  DRUEDING WAS A DECISION UPHOLDING MARYLAND'S
DURATIONAL RESIDENCE REQUIREMENTS.  THE DISTRICT COURT TESTED THOSE
REQUIREMENTS BY THE EQUAL PROTECTION STANDARD APPLIED TO ORDINARY STATE
REGULATIONS:  WHETHER THE EXCLUSIONS ARE REASONABLY RELATED TO A
PERMISSIBLE STATE INTEREST.  234 F.SUPP.  721, 724-725 (MD. 1964).  WE
SUMMARILY AFFIRMED PER CURIAM WITHOUT THE BENEFIT OF ARGUMENT.  BUT IF
IT WAS NOT CLEAR THEN, IT IS CERTAINLY CLEAR NOW THAT A MORE EXACTING
TEST IS REQUIRED FOR ANY STATUTE THAT "PLACES) A CONDITION ON THE
EXERCISE OF THE RIGHT TO VOTE."  BULLOCK V. CARTER, SUPRA, AT 143. 
THIS DEVELOPMENT IN THE LAW CULMINATED IN KRAMER V. UNION FREE SCHOOL
DISTRICT, SUPRA. THERE WE CANVASSED IN DETAIL THE REASONS FOR STRICT
REVIEW OF STATUTES DISTRIBUTING THE FRANCHISE, 395 U.S.,AT 626-630,
NOTING INTER ALIA THAT SUCH STATUTES "CONSTITUTE THE FOUNDATION OF OUR
REPRESENTATIVE SOCIETY."  WE CONCLUDED THAT IF A CHALLENGED STATUTE
GRANTS THE RIGHT TO VOTE TO SOME CITIZENS AND DENIES THE FRANCHISE TO
OTHERS, "THE COURT MUST DETERMINE WHETHER THE EXCLUSIONS ARE NECESSARY
TO PROMOTE A COMPELLING STATE INTEREST."  ID., AT 627; CIPRIANO V. CITY
OF HOUMA, SUPRA, AT 704; CITY OF PHOENIX V. KOLODZIEJSKI, 399 U.S. 204,
205, 209 (1970).  CF. HARPER V. VIRGINIA BOARD OF ELECTIONS, SUPRA, AT
670.  THIS IS THE TEST WE APPLY HERE.  /7/

        B 

THIS EXACTING TEST IS APPROPRIATE FOR ANOTHER REASON, NEVER
CONSIDERED IN DRUEDING:  TENNESSEE'S DURATIONAL RESIDENCE LAWS CLASSIFY
BONA FIDE RESIDENTS ON THE BASIS OF RECENT TRAVEL, PENALIZING THOSE
PERSONS, AND ONLY THOSE PERSONS, WHO HAVE GONE FROM ONE JURISDICTION TO
ANOTHER DURING THE QUALIFYING PERIOD.  THUS, THE DURATIONAL RESIDENCE
REQUIREMENT DIRECTLY IMPINGES ON THE EXERCISE OF A SECOND FUNDAMENTAL
PERSONAL RIGHT, THE RIGHT TO TRAVEL. 

"(FREEDOM TO TRAVEL THROUGHOUT THE UNITED STATES HAS LONG BEEN
RECOGNIZED AS A BASIC RIGHT UNDER THE CONSTITUTION."  UNITED STATES V.
GUEST, 383 U.S. 745, 758 (1966).  SEE PASSENGER CASES, 7 HOW.  283, 492
(1849) (TANEY, C.J.); CRANDALL V. NEVADA, 6 WALL.  35, 43-44 (1868);
PAUL V. VIRGINIA, 8 WALL.  168, 180 (1869); EDWARDS V. CALIFORNIA, 314
U.S. 160 (1941); KENT V. DULLES, 357 U.S. 116, 126 (1958); SHAPIRO V.
THOMPSON, 394 U.S. 618, 629-631, 634 (1969); OREGON V. MITCHELL, 400
U.S.,AT 237 (SEPARATE OPINION OF BRENNAN, WHITE, AND MARSHALL, JJ.),
285-286 (STEWART, J., CONCURRING AND DISSENTING, WITH WHOM BURGER,
C.J., AND BLACKMUN, J., JOINED).  AND IT IS CLEAR THAT THE FREEDOM TO
TRAVEL INCLUDES THE "FREEDOM TO ENTER AND ABIDE IN ANY STATE IN THE
UNION," ID., AT 285.  OBVIOUSLY, DURATIONAL RESIDENCE LAWS SINGLE OUT
THE CLASS OF BONA FIDE STATE AND COUNTY RESIDENTS WHO HAVE RECENTLY
EXERCISED THIS CONSTITUTIONALLY PROTECTED RIGHT, AND PENALIZE SUCH
TRAVELERS DIRECTLY.  WE CONSIDERED SUCH A DURATIONAL RESIDENCE
REQUIREMENT IN SHAPIRO V. THOMPSON, SUPRA, WHERE THE PERTINENT STATUTES
IMPOSED A ONE-YEAR WAITING PERIOD FOR INTERSTATE MIGRANTS AS A
CONDITION TO RECEIVING WELFARE BENEFITS.  ALTHOUGH IN SHAPIRO WE
SPECIFICALLY DID NOT DECIDE WHETHER DURATIONAL RESIDENCE REQUIREMENTS
COULD BE USED TO DETERMINE VOTING ELIGIBILITY, ID., AT 638 N. 21, WE
CONCLUDED THAT SINCE THE RIGHT TO TRAVEL WAS A CONSTITUTIONALLY
PROTECTED RIGHT, "ANY CLASSIFICATION WHICH SERVES TO PENALIZE THE
EXERCISE OF THAT RIGHT, UNLESS SHOWN TO BE NECESSARY TO PROMOTE A
COMPELLING GOVERNMENTAL INTEREST, IS UNCONSTITUTIONAL."  ID., AT 634. 
THIS COMPELLING-STATE-INTEREST TEST WAS ALSO ADOPTED IN THE SEPARATE
CONCURRENCE OF MR. JUSTICE STEWART.  PRECEDED BY A LONG LINE OF CASES
RECOGNIZING THE CONSTITUTIONAL RIGHT TO TRAVEL, AND REPEATEDLY
REAFFIRMED IN THE FACE OF ATTEMPTS TO DISREGARD IT, SEE WYMAN V.
BOWENS, 397 U.S. 49 (1970), AND WYMAN V. LOPEZ, 404 U.S. 1055 (1972),
SHAPIRO AND THE COMPELLING-STATE-INTEREST TEST IT ARTICULATES CONTROL
THIS CASE. 

TENNESSEE ATTEMPTS TO DISTINGUISH SHAPIRO BY URGING THAT "THE VICE
OF THE WELFARE STATUTE IN SHAPIRO . . . WAS ITS OBJECTIVE TO DETER
INTERSTATE TRAVEL."  BRIEF FOR APPELLANTS 13.  IN TENNESSEE'S VIEW, THE
COMPELLING-STATE-INTEREST TEST IS APPROPRIATE ONLY WHERE THERE IS "SOME
EVIDENCE TO INDICATE A DETERRENCE OF OR INFRINGEMENT ON THE RIGHT TO
TRAVEL . . . . "  IBID.  THUS, TENNESSEE SEEKS TO AVOID THE CLEAR
COMMAND OF SHAPIRO BY ARGUING THAT DURATIONAL RESIDENCE REQUIREMENTS
FOR VOTING NEITHER SEEK TO NOR ACTUALLY DO DETER SUCH TRAVEL.  IN
ESSENCE, TENNESSEE ARGUES THAT THE RIGHT TO TRAVEL IS NOT ABRIDGED HERE
IN ANY CONSTITUTIONALLY RELEVANT SENSE. 

THIS VIEW REPRESENTS A FUNDAMENTAL MISUNDERSTANDING OF THE LAW.  /8/
IT IS IRRELEVANT WHETHER DISENFRANCHISEMENT OR DENIAL OF WELFARE IS
THE MORE POTENT DETERRENT TO TRAVEL.  SHAPIRO DID NOT REST UPON A
FINDING THAT DENIAL OF WELFARE ACTUALLY DETERED TRAVEL.  NOR HAVE OTHER
"RIGHT TO TRAVEL" CASES IN THIS COURT ALWAYS RELIED ON THE PRESENCE OF
ACTUAL DETERRENCE.  /9/  IN SHAPIRO WE EXPLICITLY STATED THAT THE
COMPELLING-STATE-INTEREST TEST WOULD BE TRIGGERED BY "ANY
CLASSIFICATION WHICH SERVES TO PENALIZE THE EXERCISE OF THAT RIGHT (TO
TRAVEL) . . . . "  ID., AT 634; SEE ID., AT 638 N. 21.  /10/  WHILE
NOTING THE FRANK LEGISLATIVE PURPOSE TO DETER MIGRATION BY THE POOR,
AND SPECULATING THAT "(AN INDIGENT WHO DESIRES TO MIGRATE . . . WILL
DOUBTLESS HESITATE IF HE KNOWS THAT HE MUST RISK"  THE LOSS OF
BENEFITS, ID., AT 629, THE MAJORITY FOUND NO NEED TO IDSPUTE THE
"EVIDENCE THAT FEW WELFARE RECIPIENTS HAVE IN FACT BEEN DETERRED (FROM
MOVING) BY RESIDENCE REQUIREMENTS."  ID., AT 650 (WARREN, C.J.,
DISSENTING); SEE ALSO ID., AT 671-672 (HARLAN, J., DISSENTING). 
INDEED, NONE OF THE LITIGANTS HAD THEMSELVES BEEN DETERRED.  ONLY LAST
TERM, IT WAS SPECIFICALLY NOTED THAT BECAUSE A DURATIONAL RESIDENCE
REQUIREMENT FOR VOTING "OPERATES TO PENALIZE THOSE PERSONS, AND ONLY
THOSE PERSONS, WHO HAVE EXERCISED THEIR CONSTITUTIONAL RIGHT OF
INTERSTATE MIGRATION . . . , (IT) MAY WITHSTAND CONSTITUTIONAL SCRUTINY
ONLY UPON A CLEAR SHOWING THAT THE BURDEN IMPOSED IS NECESSARY TO
PROTECT A COMPELLING AND SUBSTANTIAL GOVERNMENTAL INTEREST."  OREGON V.
MITCHELL, 400 U.S.,AT 238 (SEPARATE OPINION OF BRENNAN, WHITE, AND
MARSHALL, JJ.). 

OF COURSE, IT IS TRUE THAT THE TWO INDIVIDUAL INTERESTS AFFECTED BY
TENNESSEE'S DURATIONAL RESIDENCE REQUIREMENTS ARE AFFECTED IN DIFFERENT
WAYS.  TRAVEL IS PERMITTED, BUT ONLY AT A PRICE; VOTING IS PROHIBITED. 
THE RIGHT TO TRAVEL IS MERELY PENALIZED, WHILE THE RIGHT TO VOTE IS
ABSOLUTELY DENIED.  BUT THESE DIFFERENCES ARE IRRELEVANT FOR PRESENT
PURPOSES.  SHAPIRO IMPLICITLY REALIZED WHAT THIS COURT HAS MADE
EXPLICIT ELSEWHERE: 

     "IT HAS LONG BEEN ESTABLISHED THAT A STATE MAY NOT IMPOSE A

  PENALTY UPON THOSE WHO EXERCISE A RIGHT GUARANTEED BY THE

  CONSTITUTION.  . . . 'CONSTITUTIONAL RIGHTS WOULD BE OF LITTLE

  VALUE IF THEY COULD BE . . . INDIRECTLY DENIED' . . . "  HARMAN

  V. FORSSENIUS, 380 U.S. 528, 540 (1965).  /11/

SEE ALSO GARRITY V. NEW JERSEY, 385 U.S. 493 (1967), AND CASES CITED
THEREIN; SPEVACK V. KLEIN, 385 U.S. 511, 515 (1967).  THE RIGHT TO
TRAVEL IS AN "UNCONDITIONAL PERSONAL RIGHT," A RIGHT WHOSE EXERCISE MAY
NOT BE CONDITIONED.  SHAPIRO V. THOMPSON, 394 U.S.,AT 643 (STEWART, J.,
CONCURRING); OREGON V. MITCHELL, SUPRA, AT 292 (STEWART, J., CONCURRING
AND DISSENTING, WITH WHOM BURGER, C.J., AND BLACKMUN, J., JOINED). 
DURATIONAL RESIDENCE LAWS IMPERMISSIBLY CONDITION AND PENALIZE THE
RIGHT TO TRAVEL BY IMPOSING THEIR PROHIBITIONS ON ONLY THOSE PERSONS
WHO HAVE RECENTLY EXERCISED THAT RIGHT.  /12/ IN THE PRESENT CASE, SUCH
LAWS FORCE A PERSON WHO WISHES TO TRAVEL AND CHANGE RESIDENCES TO
CHOOSE BETWEEN TRAVEL AND THE BASIC RIGHT TO VOTE.  CF. UNITED STATES
V. JACKSON, 390 U.S. 570, 582-583 (1968).  ABSENT A COMPELLING STATE
INTEREST, A STATE MAY NOT BURDEN THE RIGHT TO TRAVEL IN THIS WAY.  /13/
       C 

IN SUM, DURATIONAL RESIDENCE LAWS MUST BE MEASURED BY A STRICT EQUAL
PROTECTION TEST:  THEY ARE UNCONSTITUTIONAL UNLESS THE STATE CAN
DEMONSTRATE THAT SUCH LAWS ARE "NECESSARY TO PROMOTE A COMPELLING
GOVERNMENTAL INTEREST."  SHAPIRO V. THOMPSON, SUPRA, AT 634; KRAMER V.
UNION FREE SCHOOL DISTRICT, 395 U.S.,AT 627.  THUS PHRASED, THE
CONSTITUTIONAL QUESTION MAY SOUND LIKE A MATHEMATICAL FORMULA.  BUT
LEGAL "TESTS" DO NOT HAVE THE PRECISION OF MATHEMATICAL FORMULAS.  THE
KEY WORDS EMPHASIZE A MATTER OF DEGREE:  THAT A HEAVY BURDEN OF
JUSTIFICATION IS ON THE STATE, AND THAT THE STATUTE WILL BE CLOSELY
SCRUTINIZED IN LIGHT OF ITS ASSERTED PURPOSES. 

IT IS NOT SUFFICIENT FOR THE STATE TO SHOW THAT DURATIONAL RESIDENCE
REQUIREMENTS FURTHER A VERY SUBSTANTIAL STATE INTEREST.  IN PURSUING
THAT IMPORTANT INTEREST, THE STATE CANNOT CHOOSE MEANS THAT
UNNECESSARILY BURDEN OR RESTRICT CONSTITUTIONALLY PROTECTED ACTIVITY. 
STATUTES AFFECTING CONSTITUTIONAL RIGHTS MUST BE DRAWN WITH
"PRECISION," NAACP V. BUTTON, 371 U.S. 415, 438 (1963); UNITED STATES
V. ROBEL, 389 U.S. 258, 265 (1967), AND MUST BE "TAILORED" TO SERVE
THEIR LEGITIMATE OBJECTIVES.  SHAPIRO V. THOMPSON, SUPRA, AT 631.  AND
IF THERE ARE OTHER, REASONABLE WAYS TO ACHIEVE THOSE GOALS WITH A
LESSER BURDEN ON CONSTITUTIONALLY PROTECTED ACTIVITY, A STATE MAY NOT
CHOOSE THE WAY OF GREATER INTERFERENCE.  IF IT ACTS AT ALL, IT MUST
CHOOSE "LESS DRASTIC MEANS."  SHELTON V. TUCKER, 364 U.S. 479, 488
(1960). 

        II 

WE TURN, THEN, TO THE QUESTION OF WHETHER THE STATE HAS SHOWN THAT
DURATIONAL RESIDENCE REQUIREMENTS ARE NEEDED TO FURTHER A SUFFICIENTLY
SUBSTANTIAL STATE INTEREST.  WE EMPHASIZE AGAIN THE DIFFERENCE BETWEEN
BONA FIDE RESIDENCE REQUIREMENTS AND DURATIONAL RESIDENCE
REQUIREMENTS.  WE HAVE IN THE PAST NOTED APPROVINGLY THAT THE STATES
HAVE THE POWER TO REQUIRE THAT VOTERS BE BONA FIDE RESIDENTS OF THE
RELEVANT POLITICAL SUBDIVISION.  E.G., EVANS V. CORNMAN, 398 U.S.,AT
422; KRAMER V. UNION FREE SCHOOL DISTRICT, SUPRA, AT 625; CARRINGTON V.
RASH, 380 U.S.,AT 91; POPE V. WILLIAMS, 193 U.S. 621 (1904).  /14/  AN
APPROPRIATELY DEFINED AND UNIFORMLY APPLIED REQUIREMENT OF BONA FIDE
RESIDENCE MAY BE NECESSARY TO PRESERVE THE BASIC CONCEPTION OF A
POLITICAL COMMUNITY, AND THEREFORE COULD WITHSTAND CLOSE CONSTITUTIONAL
SCRUTINY.  /15/  BUT DURATIONAL RESIDENCE REQUIREMENTS, REPRESENTING A
SEPARATE VOTING QUALIFICATION IMPOSED ON BONA FIDE RESIDENTS, MUST BE
SEPARATELY TESTED BY THE STRINGENT STANDARD.  CF. SHAPIRO V. THOMPSON,
SUPRA, AT 636. 

IT IS WORTH NOTING AT THE OUTSET THAT CONGRESS HAS, IN A SOMEWHAT
DIFFERENT CONTEXT, ADDRESSED THE QUESTION WHETHER DURATIONAL RESIDENCE
LAWS FURTHER COMPELLING STATE INTERESTS.  IN SEC. 202 OF THE VOTING
RIGHTS ACT OF 1965, ADDED BY THE VOTING RIGHTS ACT AMENDMENTS OF 1970,
CONGRESS OUTLAWED STATE DURATIONAL RESIDENCE REQUIREMENTS FOR
PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS, AND PROHIBITED THE STATES
FROM CLOSING REGISTRATION MORE THAN 30 DAYS BEFORE SUCH ELECTIONS.  42
U.S.C. 1973AA-1.  IN DOING SO, IT MADE A SPECIFIC FINDING THAT
DURATIONAL RESIDENCE REQUIREMENTS AND MORE RESTRICTIVE REGISTRATION
PRACTICES DO "NOT BEAR A REASONABLE RELATIONSHIP TO ANY COMPELLING
STATE INTEREST IN THE CONDUCT OF PRESIDENTIAL ELECTIONS."  42 U.S.C.
1973AA-1(A)(6).  WE UPHELD THIS PORTION OF THE VOTING RIGHTS ACT IN
OREGON V. MITCHELL, SUPRA.  IN OUR PRESENT CASE, OF COURSE, WE DEAL
WITH CONGRESSIONAL, STATE, AND LOCAL ELECTIONS, IN WHICH THE STATE'S
INTERESTS ARE ARGUABLY SOMEWHAT DIFFERENT; AND, IN ADDITION, OUR
FUNCTION IS NOT MERELY TO DETERMINE WHETHER THERE WAS A REASONABLE
BASIS FOR CONGRESS' FINDINGS.  HOWEVER, THE CONGRESSIONAL FINDING WHICH
FORMS THE BASIS FOR THE FEDERAL ACT IS A USEFUL BACKGROUND FOR THE
DISCUSSION THAT FOLLOWS. 

TENNESSEE TENDERS "TWO BASIC PURPOSES" SERVED BY ITS DURATIONAL
RESIDENCE REQUIREMENTS: 

     "(1) INSURE PURITY OF BALLOT BOX-- PROTECTION AGAINST FRAUD

  THROUGH COLONIZATION AND INABILITY TO IDENTIFY PERSONS OFFERING

  TO VOTE, AND 

     "(2) KNOWLEDGEABLE VOTER-- AFFORD SOME SURETY THAT THE VOTER

  HAS, IN FACT, BECOME A MEMBER OF THE COMMUNITY AND THAT AS SUCH,

 HE HAS A COMMON INTEREST IN ALL MATTERS PERTAINING TO ITS

  GOVERNMENT AND IS, THEREFORE, MORE LIKELY TO EXERCISE HIS RIGHT

  MORE INTELLIGENTLY."  BRIEF FOR APPELLANTS 15, CITING 18

  AM.JR.,ELECTIONS, 56, P. 217. 

WE CONSIDER EACH IN TURN. 

        A 

PRESERVATION OF THE "PURITY OF THE BALLOT BOX" IS A FORMIDABLE
SOUNDING STATE INTEREST.  THE IMPURITIES FEARED, VARIOUSLY CALLED "DUAL
VOTING" AND "COLONIZATION," ALL INVOLVE VOTING BY NONRESIDENTS, EITHER
SINGLY OR IN GROUPS.  THE MAIN CONCERN IS THAT NONRESIDENTS WILL
TEMPORARILY INVADE THE STATE OR COUNTY, FALSELY SWEAR THAT THEY ARE
RESIDENTS TO BECOME ELIGIBLE TO VOTE, AND, BY VOTING, ALLOW A CANDIDATE
TO WIN BY FRAUD.  SURELY THE PREVENTION OF SUCH FRAUD IS A LEGITIMATE
AND COMPELLING GOVERNMENT GOAL.  BUT IT IS IMPOSSIBLE TO VIEW
DURATIONAL RESIDENCE REQUIREMENTS AS NECESSARY TO ACHIEVE THAT STATE
INTEREST. 

PREVENTING FRAUD, THE ASSERTED EVIL THAT JUSTIFIES STATE LAWMAKING,
MEANS KEEPING NONRESIDENTS FROM VOTING.  BUT, BY DEFINITION, A
DURATIONAL RESIDENCE LAW BARS NEWLY ARRIVED RESIDENTS FROM THE
FRANCHISE ALONG WITH NONRESIDENTS.  THE STATE ARGUES THAT SUCH SWEEPING
LAWS ARE NECESSARY TO PREVENT FRAUD BECAUSE THEY ARE NEEDED TO IDENTIFY
BONA FIDE RESIDENTS.  THIS CONTENTION IS PARTICULARLY UNCONVINCING IN
LIGHT OF TENNESSEE'S TOTAL STATUTORY SCHEME FOR REGULATING THE
FRANCHISE. 

DURATIONAL RESIDENCE LAWS MAY ONCE HAVE BEEN NECESSARY TO PREVENT A
FRAUDULENT EVASION OF STATE VOTER STANDARDS, BUT TODAY IN TENNESSEE, AS
IN MOST OTHER STATES, /16/  THIS PURPOSE IS SERVED BY A SYSTEM OF VOTER
REGISTRATION.  TENN. CODE ANN. SEC. 2-301 ET SEQ. (1955 AND SUPP.
1970); SEE STATE V. WEAVER, 122 TENN. 198, 122 S.W. 465 (1909).  GIVEN
THIS SYSTEM, THE RECORD IS TOTALLY DEVOID OF ANY EVIDENCE THAT
DURATIONAL RESIDENCE REQUIREMENTS ARE IN FACT NECESSARY TO IDENTIFY
BONA FIDE RESIDENTS.  THE QUALIFICATIONS OF THE WOULD-BE VOTER IN
TENNESSEE ARE DETERMINED WHEN HE REGISTERS TO VOTE, WHICH HE MAY DO
UNTIL 30 DAYS BEFORE THE ELECTION.  TENN. CODE ANN. SEC. 2-304.  HIS
QUALIFICATIONS-- INCLUDING BONA FIDE RESIDENCE-- ARE ESTABLISHED THEN
BY OATH.  TENN. CODE ANN. SEC. 2-309.  THERE IS NO INDICATION IN THE
RECORD THAT TENNESSEE ROUTINELY GOES BEHIND THE WOULD-BE VOTER'S OATH
TO DETERMINE HIS QUALIFICATIONS.  SINCE FALSE SWEARING IS NO OBSTACLE
TO ONE INTENT ON FRAUD, THE EXISTENCE OF BURDENSOME VOTING
QUALIFICATIONS LIKE DURATIONAL RESIDENCE REQUIREMENTS CANNOT PREVENT
CORRUPT NONRESIDENTS FROM FRAUDULENTLY REGISTERING AND VOTING.  AS LONG
AS THE STATE RELIES ON THE OATH-SWEARING SYSTEM TO ESTABLISH
QUALIFICATIONS, A DURATIONAL RESIDENCE REQUIREMENT ADDS NOTHING TO A
SIMPLE RESIDENCE REQUIREMENT IN THE EFFORT TO STOP FRAUD.  THE
NONRESIDENT INTENT ON COMMITTING ELECTION FRAUD WILL AS QUICKLY AND
EFFECTIVELY SWEAR THAT HE HAS BEEN A RESIDENT FOR THE REQUISITE PERIOD
OF TIME AS HE WOULD SWEAR THAT HE WAS SIMPLY A RESIDENT.  INDEED, THE
DURATIONAL RESIDENCE REQUIREMENT BECOMES AN EFFECTIVE VOTING OBSTACLE
ONLY TO RESIDENTS WHO TELL THE TRUTH AND HAVE NO FRAUDULENT PURPOSES. 

MOREOVER, TO THE EXTENT THAT THE STATE MAKES AN ENFORCEMENT EFFORT
AFTER THE OATH IS SWORN, IT IS NOT CLEAR WHAT ROLE THE DURATIONAL
RESIDENCE REQUIREMENT COULD PLAY IN PROTECTING AGAINST FRAUD.  THE
STATE CLOSES THE REGISTRATION BOOKS 30 DAYS BEFORE AN ELECTION TO GIVE
OFFICIALS AN OPPORTUNITY TO PREPARE FOR THE ELECTION.  BEFORE THE BOOKS
CLOSE, ANYONE MAY REGISTER WHO CLAIMS THAT HE WILL MEET THE DURATIONAL
RESIDENCE REQUIREMENT AT THE TIME OF THE NEXT ELECTION.  ALTHOUGH
TENNESSEE ARGUES THAT THIS 30-DAY PERIOD BETWEEN REGISTRATION AND
ELECTION DOES NOT GIVE THE STATE ENOUGH TIME TO VERIFY THIS CLAIM OF
BONA FIDE RESIDENCE, WE DO NOT SEE THE RELEVANCE OF THAT POSITION TO
THIS CASE.  AS LONG AS THE STATE PERMITS REGISTRATION UP TO 30 DAYS
BEFORE AN ELECTION, A LENGTHY DURATIONAL RESIDENCE REQUIREMENT DOES NOT
INCREASE THE AMOUNT OF TIME THE STATE HAS IN WHICH TO CARRY OUT AN
INVESTIGATION INTO THE SWORN CLAIM BY THE WOULD-BE VOTER THAT HE IS IN
FACT A RESIDENT. 

EVEN IF DURATIONAL RESIDENCE REQUIREMENTS IMPOSED, IN PRACTICE, A
PRE-ELECTION WAITING PERIOD THAT GAVE VOTING OFFICIALS THREE MONTHS OR
A YEAR IN WHICH TO CONFIRM THE BONA FIDES OF RESIDENCE, TENNESSEE WOULD
NOT HAVE DEMONSTRATED THAT THESE WAITING PERIODS WERE NECESSARY.  AT
THE OUTSET, THE STATE IS FACED WITH THE FACT THAT IT MUST DEFEND TWO
SEPARATE WAITING PERIODS OF DIFFERENT LENGTHS.  IT IS IMPOSSIBLE TO SEE
HOW BOTH COULD BE "NECESSARY" TO FULFILL THE PERTINENT STATE
OBJECTIVE.  IF THE STATE ITSELF HAS DETERMINED THAT A THREE-MONTH
PERIOD IS ENOUGH TIME IN WHICH TO CONFIRM BONA FIDE RESIDENCE IN THE
STATE AND COUNTY, OBVIOUSLY A ONE-YEAR PERIOD CANNOT ALSO BE JUSTIFIED
AS "NECESSARY" TO ACHIEVE THE SAME PURPOSE.  /17/  BEYOND THAT, THE JOB
OF DETECTING NONRESIDENTS FROM AMONG PERSONS WHO HAVE REGISTERED IS A
RELATIVELY SIMPLE ONE.  IT HARDLY JUSTIFIES PROHIBITING ALL NEWCOMERS
FROM VOTING FOR EVEN THREE MONTHS.  TO PREVENT DUAL VOTING, STATE
VOTING OFFICIALS SIMPLY HAVE TO CROSS-CHECK LISTS OF NEW REGISTRANTS
WITH THEIR FORMER JURISDICTIONS.  SEE COMMENT, RESIDENCE REQUIREMENTS
FOR VOTING IN PRESIDENTIAL ELECTIONS, 37 U.CHI.L.REV.  359, 364 AND N.
34, 374 (1970); CF. SHAPIRO V. THOMPSON, 394 U.S.,AT 637.  OBJECTIVE
INFORMATION TENDERED AS RELEVANT TO THE QUESTION OF BONA FIDE RESIDENCE
UNDER TENNESSEE LAW-- PLACES OF DWELLING, OCCUPATION, CAR REGISTRATION,
DRIVER'S LICENSE, PROPERTY OWNED, ETC.  /18/  -- IS EASY TO
DOUBLECHECK, ESPECIALLY IN LIGHT OF MODERN COMMUNICATIONS.  TENNESSEE
ITSELF CONCEDES THAT "(IT MIGHT WELL BE THAT THESE PURPOSES CAN BE
ACHIEVED UNDER REQUIREMENTS OF SHORTER DURATION THAN THAT IMPOSED BY
THE STATE OF TENNESSEE . . . . "  BRIEF FOR APPELLANTS 10.  FIXING A
CONSTITUTIONALLY ACCEPTABLE PERIOD IS SURELY A MATTER OF DEGREE.  IT IS
SUFFICIENT TO NOTE HERE THAT 30 DAYS APPEARS TO BE AN AMPLE PERIOD OF
TIME FOR THE STATE TO COMPLETE WHATEVER ADMINISTRATIVE TASKS ARE
NECESSARY TO PREVENT FRAUD-- AND A YEAR, OR THREE MONTHS, TOO MUCH. 
THIS WAS THE JUDGMENT OF CONGRESS IN THE CONTEXT OF PRESIDENTIAL
ELECTIONS.  /19/  AND, ON THE BASIS OF THE STATUTORY SCHEME BEFORE US,
IT IS ALMOST SURELY THE JUDGMENT OF THE TENNESSEE LAWMAKERS AS WELL. 
AS THE COURT BELOW CONCLUDED, THE CUTOFF POINT FOR REGISTRATION 30 DAYS
BEFORE AN ELECTION 

"REFLECTS THE JUDGMENT OF THE TENNESSEE LEGISLATURE THAT THIRTY DAYS
IS AN ADEQUATE PERIOD IN WHICH TENNESSEE'S ELECTION OFFICIALS CAN
EFFECT WHATEVER MEASURES MAY BE NECESSARY, IN EACH PARTICULAR CASE
CONFRONTING THEM, TO INSURE PURITY OF THE BALLOT AND PREVENT DUAL
REGISTRATION AND DUAL VOTING."  337 F.SUPP.,AT 330. 

IT HAS BEEN ARGUED THAT DURATIONAL RESIDENCE REQUIREMENTS ARE
PERMISSIBLE BECAUSE A PERSON WHO HAS SATISFIED THE WAITING-PERIOD
REQUIREMENTS IS CONCLUSIVELY PRESUMED TO BE A BONA FIDE RESIDENT.  IN
OTHER WORDS, DURATIONAL RESIDENCE REQUIREMENTS ARE JUSTIFIED BECAUSE
THEY CREATE AN ADMINISTRATIVELY USEFUL CONCLUSIVE PRESUMPTION THAT
RECENT ARRIVALS ARE NOT RESIDENTS AND ARE THEREFORE PROPERLY BARRED
FROM THE FRANCHISE.  /20/  THIS PRESUMPTION, SO THE ARGUMENT RUNS, ALSO
PREVENTS FRAUD, FOR FEW CANDIDATES WILL BE ABLE TO INDUCE MIGRATION FOR
THE PURPOSE OF VOTING IF FRAUDULENT VOTERS ARE REQUIRED TO REMAIN IN
THE FALSE LOCALE FOR THREE MONTHS OR A YEAR IN ORDER TO VOTE ON
ELECTION DAY.  /21/ 

IN CARRINGTON V. RASH, 380 U.S. 89, THIS COURT CONSIDERED AND
REJECTED A SIMILAR KIND OF ARGUMENT IN SUPPORT OF A SIMILAR KIND OF
CONCLUSIVE PRESUMPTION.  THERE, THE STATE ARGUED THAT IT WAS DIFFICULT
TO TELL WHETHER PERSONS MOVING TO TEXAS WHILE IN THE MILITARY SERVICE
WERE IN FACT BONA FIDE RESIDENTS.  THUS, THE STATE SAID, THE
ADMINISTRATIVE CONVENIENCE OF AVOIDING DIFFICULT FACTUAL DETERMINATIONS
JUSTIFIED A BLANKET EXCLUSION OF ALL SERVICEMEN STATIONED IN TEXAS. 
THE PRESUMPTION CREATED THERE WAS CONCLUSIVE-- "'INCAPABLE OF BEING
OVERCOME BY PROOF OF THE MOST POSITIVE CHARACTER,'"  ID., AT 96, CITING
HEINER V. DONMAN, 285 U.S. 312, 324 (1932).  THE COURT REJECTED THIS
"CONCLUSIVE PRESUMPTION" APPROACH AS VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.  WHILE MANY SERVICEMEN IN TEXAS WERE NOT BONA FIDE RESIDENTS,
AND THEREFORE PROPERLY INELIGIBLE TO VOTE, MANY SERVICEMEN CLEARLY WERE
BONA FIDE RESIDENTS.  SINCE "MORE PRECISE TESTS" WERE AVAILABLE "TO
WINNOW SUCCESSFULLY FROM THE RANKS . . . THOSE WHOSE RESIDENCE IN THE
STATE IS BONA FIDE," CONCLUSIVE PRESUMPTIONS WERE IMPERMISSIBLE IN
LIGHT OF THE INDIVIDUAL INTERESTS AFFECTED.  ID., AT 95.  "STATES MAY
NOT CASUALLY DEPRIVE A CLASS OF INDIVIDUALS OF THE VOTE BECAUSE OF SOME
REMOTE ADMINISTRATIVE BENEFIT TO THE STATE."  ID., AT 96. 

CARRINGTON SUFFICIENTLY DISPOSES OF THIS DEFENSE OF DURATIONAL
RESIDENCE REQUIREMENTS.  THE STATE'S LEGITIMATE PURPOSE IS TO DETERMINE
WHETHER CERTAIN PERSONS IN THE COMMUNITY ARE BONA FIDE RESIDENTS.  A
DURATIONAL RESIDENCE REQUIREMENT CREATES A CLASSIFICATION THAT MAY, IN
A CRUDE WAY, EXCLUDE NONRESIDENTS FROM THAT GROUP.  BUT IT ALSO
EXCLUDES MANY RESIDENTS.  GIVEN THE STATE'S LEGITIMATE PURPOSE AND THE
INDIVIDUAL INTERESTS THAT ARE AFFECTED, THE CLASSIFICATION IS ALL TOO
IMPRECISE.  SEE SUPRA, AT 343.  IN GENERAL, IT IS NOT VERY DIFFICULT
FOR TENNESSEE TO DETERMINE ON AN INDIVIDUALIZED BASIS WHETHER ONE
RECENTLY ARRIVED IN THE COMMUNITY IS IN FACT A RESIDENT, ALTHOUGH OF
COURSE THERE WILL ALWAYS BE DIFFICULT CASES.  TENNESSEE HAS DEFINED A
TEST FOR BONA FIDE RESIDENCE, AND APPEARS PREPARED TO APPLY IT ON AN
INDIVIDUALIZED BASIS IN VARIOUS LEGAL CONTEXTS.  /22/  THAT TEST COULD
EASILY BE APPLIED TO NEW ARRIVALS.  FURTHERMORE, IF IT IS UNLIKELY THAT
WOULD-BE FRAUDULENT VOTERS WOULD REMAIN IN A FALSE LOCALE FOR THE
LENGTHY PERIOD IMPOSED BY DURATIONAL RESIDENCE REQUIREMENTS, IT IS JUST
AS UNLIKELY THAT THEY WOULD COLLECT SUCH OBJECTIVE INDICIA OF BONA FIDE
RESIDENCE AS A DWELLING, CAR REGISTRATION, OR DRIVER'S LICENSE.  IN
SPITE OF THESE THINGS, THE QUESTION OF BONA FIDE RESIDENCE IS SETTLED
FOR NEW ARRIVALS BY CONCLUSIVE PRESUMPTION, NOT BY INDIVIDUALIZED
INQUIRY.  CF. CARRINGTON V. RASH, SUPRA, AT 95-96.  THUS, IT HAS ALWAYS
BEEN UNDISPUTED THAT APPELLEE BLUMSTEIN IS HIMSELF A BONA FIDE RESIDENT
OF TENNESSEE WITHIN THE ORDINARY STATE DEFINITION OF RESIDENCE.  BUT
SINCE TENNESSEE'S PRESUMPTION FROM FAILURE TO MEET THE DURATIONAL
RESIDENCE REQUIREMENTS IS CONCLUSIVE, A SHOWING OF ACTUAL BONA FIDE
RESIDENCE IS IRRELEVANT, EVEN THOUGH SUCH A SHOWING WOULD FULLY SERVE
THE STATE'S PURPOSES EMBODIED IN THE PRESUMPTION AND WOULD ACHIEVE
THOSE PURPOSES WITH FAR LESS DRASTIC IMPACT ON CONSTITUTIONALLY
PROTECTED INTERESTS.  /23/  THE EQUAL PROTECTION CLAUSE PLACES A LIMIT
ON GOVERNMENT BY CLASSIFICATION, AND THAT LIMIT HAS BEEN EXCEEDED
HERE.  CF. SHAPIRO V. THOMPSON, 394 U.S.,AT 636; HARMAN V. FORSSENIUS,
380 U.S.,AT 542-543; CARRINGTON V. RASH, SUPRA, AT 95-96; SKINNER V.
OKLAHOMA, 316 U.S. 535 (1942). 

OUR CONCLUSION THAT THE WAITING PERIOD IS NOT THE LEAST RESTRICTIVE
MEANS NECESSARY FOR PREVENTING FRAUD IS BOLSTERED BY THE RECOGNITION
THAT TENNESSEE HAS AT ITS DISPOSAL A VARIETY OF CRIMINAL LAWS THAT ARE
MORE THAN ADEQUATE TO DETECT AND DETER WHATEVER FRAUD MAY BE FEARED. 
/24/  AT LEAST SIX SEPARATE SECTIONS OF THE TENNESSEE CODE DEFINE
OFFENSES TO DEAL WITH VOTER FRAUD.  FOR EXAMPLE, TENN. CODE ANN. SEC. 2
324 MAKES IT A CRIME "FOR ANY PERSON TO REGISTER OR TO HAVE HIS NAME
REGISTERED AS A QUALIFIED VOTER . . . WHEN HE IS NOT ENTITLED TO BE SO
REGISTERED . . . OR TO PROCURE OR INDUCE ANY OTHER PERSON TO REGISTER
OR BE REGISTERED . . . WHEN SUCH PERSON IS NOT LEGALLY QUALIFIED TO BE
REGISTERED AS SUCH . . . . "  /25/  IN ADDITION TO THE VARIOUS CRIMINAL
PENALTIES, TENNESSEE PERMITS THE BONA FIDES OF A VOTER TO BE CHALLENGED
ON ELECTION DAY.  TENN. CODE ANN. SEC. 2-1309 ET SEQ. (1955 AND SUPP.
1970).  WHERE A STATE HAS AVAILABLE SUCH REMEDIAL ACTION TO SUPPLEMENT
ITS VOTER REGISTRATION SYSTEM, IT CAN HARDLY ARGUE THAT BROADLY IMPOSED
POLITICAL DISABILITIES SUCH AS DURATIONAL RESIDENCE REQUIREMENTS ARE
NEEDED TO DEAL WITH THE EVILS OF FRAUD.  NOW THAT THE FEDERAL VOTING
RIGHTS ACT ABOLISHES THOSE RESIDENCE REQUIREMENTS AS A PRECONDITION FOR
VOTING IN PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS, 42 U.S.C.
1973AA-1, IT IS CLEAR THAT THE STATES WILL HAVE TO RESORT TO OTHER
DEVICES AVAILABLE TO PREVENT NONRESIDENTS FROM VOTING.  ESPECIALLY
SINCE EVERY STATE MUST LIVE WITH THIS NEW FEDERAL STATUTE, IT IS
IMPOSSIBLE TO BELIEVE THAT DURATIONAL RESIDENCE REQUIREMENTS ARE
NECESSARY TO MEET THE STATE'S GOAL OF STOPPING FRAUD.  /26/

        B 

THE ARGUMENT THAT DURATIONAL RESIDENCE REQUIREMENTS FURTHER THE GOAL
OF HAVING "KNOWLEDGEABLE VOTERS" APPEARS TO INVOLVE THREE SEPARATE
CLAIMS.  THE FIRST IS THAT SUCH REQUIREMENTS "AFFORD SOME SURETY THAT
THE VOTER HAS, IN FACT, BECOME A MEMBER OF THE COMMUNITY."  BUT HERE
THE STATE APPEARS TO CONFUSE A BONA FIDE RESIDENCE REQUIREMENT WITH A
DURATIONAL RESIDENCE REQUIREMENT.  AS ALREADY NOTED, A STATE DOES HAVE
AN INTEREST IN LIMITING THE FRANCHISE TO BONA FIDE MEMBERS OF THE
COMMUNITY.  BUT THIS DOES NOT JUSTIFY OR EXPLAIN THE EXCLUSION FROM THE
FRANCHISE OF PERSONS, NOT BECAUSE THEIR BONA FIDE RESIDENCE IS
QUESTIONED, BUT BECAUSE THEY ARE RECENT RATHER THAN LONGTIME
RESIDENTS. 

THE SECOND BRANCH OF THE "KNOWLEDGEABLE VOTERS" JUSTIFICATION IS
THAT DURATIONAL RESIDENCE REQUIREMENTS ASSURE THAT THE VOTER "HAS A
COMMON INTEREST IN ALL MATTERS PERTAINING TO (THE COMMUNITY"S)
GOVERNMENT . . . . "  BY THIS, PRESUMABLY, THE STATE MEANS THAT IT MAY
REQUIRE A PERIOD OF RESIDENCE SUFFICIENTLY LENGTHY TO IMPRESS UPON ITS
VOTERS THE LOCAL VIEWPOINT.  THIS IS PRECISELY THE SORT OF ARGUMENT
THIS COURT HAS REPEATEDLY REJECTED.  IN CARRINGTON V. RASH, FOR
EXAMPLE, THE STATE ARGUED THAT MILITARY MEN NEWLY MOVED INTO TEXAS
MIGHT NOT HAVE LOCAL INTERESTS SUFFICIENTLY IN MIND, AND THEREFORE
COULD BE EXCLUDED FROM VOTING IN STATE ELECTIONS.  THIS COURT REPLIED: 

"BUT IF THEY ARE IN FACT RESIDENTS, . . . THEY, AS ALL OTHER
QUALIFIED RESIDENTS, HAVE A RIGHT TO AN EQUAL OPPORTUNITY FOR POLITICAL
REPRESENTATION.  . . . 'FENCING OUT' FROM THE FRANCHISE A SECTOR OF THE
POPULATION BECAUSE OF THE WAY THEY MAY VOTE IS CONSTITUTIONALLY
IMPERMISSIBLE."  380 U.S.,AT 94.  SEE 42 U.S.C. 1973AA-1(A)(4). 

SIMILARLY HERE, TENNESSEE'S HOPES FOR VOTERS WITH A "COMMON INTEREST
IN ALL MATTERS PERTAINING TO (THE COMMUNITY'S) GOVERNMENT" IS
IMPERMISSIBLE.  /27/  TO PARAPHRASE WHAT WE SAID ELSEWHERE, "ALL TOO
OFTEN, LACK OF A ('COMMON INTEREST') MIGHT MEAN NO MORE THAN A
DIFFERENT INTEREST."  EVANS V. CORNMAN, 398 U.S.,AT 423.  (DIFFERENCES
OF OPINION" MAY NOT BE THE BASIS FOR EXCLUDING ANY GROUP OR PERSON FROM
THE FRANCHISE.  CIPRIANO V. CITY OF HOUMA, 395 U.S.,AT 705-706.  "(THE
FACT THAT NEWLY ARRIVED (TENNESSEEANS) MAY HAVE A MORE NATIONAL OUTLOOK
THAN LONGTIME RESIDENTS, OR EVEN MAY RETAIN A VIEWPOINT CHARACTERISTIC
OF THE REGION FROM WHICH THEY HAVE COME, IS A CONSTITUTIONALLY
IMPERMISSIBLE REASON FOR DEPRIVING THEM OF THEIR CHANCE TO INFLUENCE
THE ELECTORAL VOTE OF THEIR NEW HOME STATE."  HALL V. BEALS, 396 U.S.
45, 53-54 (1969) (DISSENTING OPINION).  /28/ 

FINALLY, THE STATE URGES THAT A LONGTIME RESIDENT IS "MORE LIKELY TO
EXERCISE HIS RIGHT (TO VOTE) MORE INTELLIGENTLY."  TO THE EXTENT THAT
THIS IS DIFFERENT FROM THE PREVIOUS ARGUMENT, THE STATE IS APPARENTLY
ASSERTING AN INTEREST IN LIMITING THE FRANCHISE TO VOTERS WHO ARE
KNOWLEDGEABLE ABOUT THE ISSUES.  IN THIS CASE, TENNESSEE ARGUES THAT
PEOPLE WHO HAVE BEEN IN THE STATE LESS THAN A YEAR AND THE COUNTY LESS
THAN THREE MONTHS ARE LIKELY TO BE UNAWARE OF THE ISSUES INVOLVED IN
THE CONGRESSIONAL, STATE, AND LOCAL ELECTIONS, AND THEREFORE CAN BE
BARRED FROM THE FRANCHISE.  WE NOTE THAT THE CRITERION OF "INTELLIGENT"
VOTING IS AN ELUSIVE ONE, AND SUSCEPTIBLE OF ABUSE.  BUT WITHOUT
DECIDING AS A GENERAL MATTER THE EXTENT TO WHICH A STATE CAN BAR LESS
KNOWLEDGEABLE OR INTELLIGENT CITIZENS FROM THE FRANCHISE, CF. EVANS V.
CORNMAN, 398 U.S.,AT 422; KRAMER V. UNION FREE SCHOOL DISTRICT, 395
U.S.,AT 632; CIPRIANO V. CITY OF HOUMA, 395 U.S.,AT 705, /29/  WE
CONCLUDE THAT DURATIONAL RESIDENCE REQUIREMENTS CANNOT BE JUSTIFIED ON
THIS BASIS. 

IN KRAMER V. UNION FREE SCHOOL DISTRICT, SUPRA, WE HELD THAT THE
EQUAL PROTECTION CLAUSE PROHIBITED NEW YORK STATE FROM LIMITING THE
VOTE IN SCHOOL-DISTRICT ELECTIONS TO PARENTS OF SCHOOL CHILDREN AND TO
PROPERTY OWNERS.  THE STATE CALIMED THAT SINCE NONPARENTS WOULD BE
"LESS INFORMED ABOUT SCHOOL AFFAIRS THAN PARENTS, ID., AT 631, THE
STATE COULD PROPERLY EXCLUDE THE CLASS OF NONPARENTS IN ORDER TO LIMIT
THE FRANCHISE TO THE MORE "INTERESTED" GROUP OF RESIDENTS.  WE REJECTED
THAT POSITION, CONCLUDING THAT A "CLOSE SCRUTINY OF (THE
CLASSIFICATION) DEMONSTRATES THAT (IT DOES) NOT ACCOMPLISH THIS PURPOSE
WITH SUFFICIENT PRECISION . . . . "  ID., AT 632.  THAT SCRUTINY
REVEALED THAT THE CLASSIFICATION EXCLUDING NONPARENTS FROM THE
FRANCHISE KEPT MANY PERSONS FROM VOTING WHO WERE AS SUBSTANTIALLY
INTERESTED AS THOSE ALLOWED TO VOTE; GIVEN THIS, THE CLASSIFICATION WAS
INSUFFICIENTLY "TAILORED" TO ACHIEVE THE ARTICULATED STATE GOAL.  IBID.
SEE ALSO CIPRIANO V. CITY OF HOUMA, SUPRA, AT 706. 

SIMILARLY, THE DURATIONAL RESIDENCE REQUIREMENTS IN THIS CASE
FOUNDER BECAUSE OF THEIR CRUDENESS AS A DEVICE FOR ACHIEVING THE
ARTICULATED STATE GOAL OF ASSURING THE KNOWLEDGEABLE EXERCISE OF THE
FRANCHISE.  THE CLASSIFICATIONS CREATED BY DURATIONAL RESIDENCE
REQUIREMENTS OBVIOUSLY PERMIT ANY LONGTIME RESIDENT TO VOTE REGARDLESS
OF HIS KNOWLEDGE OF THE ISSUES-- AND OBVIOUSLY MANY LONGTIME RESIDENTS
DO NOT HAVE ANY.  ON THE OTHER HAND, THE CLASSIFICATIONS BAR FROM THE
FRANCHISE MANY OTHER, ADMITTEDLY NEW, RESIDENTS WHO HAVE BECOME AT
LEAST MINIMALLY, AND OFTEN FULLY, INFORMED ABOUT THE ISSUES.  INDEED,
RECENT MIGRANTS WHO TAKE THE TIME TO REGISTER AND VOTE SHORTLY AFTER
MOVING ARE LIKELY TO BE THOSE CITIZENS, SUCH AS APPELLEE, WHO MAKE IT A
POINT TO BE INFORMED AND KNOWLEDGEABLE ABOUT THE ISSUES.  GIVEN MODERN
COMMUNICATIONS, AND GIVEN THE CLEAR INDICATION THAT CAMPAIGN SPENDING
AND VOTER EDUCATION OCCUR LARGELY DURING THE MONTH BEFORE AN ELECTION,
/30/  THE STATE CANNOT SERIOUSLY MAINTAIN THAT IT IS "NECESSARY" TO
RESIDE FOR A YEAR IN THE STATE AND THREE MONTHS IN THE COUNTY IN ORDER
TO BE KNOWLEDGEABLE ABOUT CONGRESSIONAL, STATE, OR EVEN PURELY LOCAL
ELECTIONS.  THERE IS SIMPLY NOTHING IN THE RECORD TO SUPPORT THE
CONCLUSIVE PRESUMPTION THAT RESIDENTS WHO HAVE LIVED IN THE STATE FOR
LESS THAN A YEAR AND THEIR COUNTY FOR LESS THAN THREE MONTHS ARE
UNINFORMED ABOUT ELECTIONS.  CF. SHAPIRO V. THOMPSON, 394 U.S.,AT 631. 
THESE DURATIONAL RESIDENCE REQUIREMENTS CRUDELY EXCLUDE LARGE NUMBERS
OF FULLY QUALIFIED PEOPLE.  ESPECIALLY SINCE TENNESSEE CREATES A
WAITING PERIOD BY CLOSING REGISTRATION BOOKS 30 DAYS BEFORE AN
ELECTION, THERE CAN BE NO BASIS FOR ARGUING THAT ANY DURATIONAL
RESIDENCE REQUIREMENT IS ALSO NEEDED TO ASSURE KNOWLEDGEABILITY. 

IT IS PERTINENT TO NOTE THAT TENNESSEE HAS NEVER MADE AN ATTEMPT TO
FURTHER ITS ALLEGED INTEREST IN AN INFORMED ELECTORATE IN A UNIVERSALLY
APPLICABLE WAY.  KNOWLEDGE OR COMPETENCE HAS NEVER BEEN A CRITERION FOR
PARTICIPATION IN TENNESSEE'S ELECTORAL PROCESS FOR LONGTIME RESIDENTS. 
INDEED, THE STATE SPECIFICALLY PROVIDES FOR VOTING BY VARIOUS TYPES OF
ABSENTEE PERSONS.  /31/  THESE PROVISIONS PERMIT MANY LONGTIME
RESIDENTS WHO LEAVE THE COUNTY OR STATE TO PARTICIPATE IN A
CONSTITUENCY IN WHICH THEY HAVE ONLY THE SLIGHTEST POLITICAL INTEREST,
AND FROM WHOSE POLITICAL DEBATES THEY ARE LIKELY TO BE CUT OFF.  THAT
THE STATE SPECIFICALLY PERMITS SUCH VOTING IS NOT CONSISTENT WITH ITS
CLAIMED COMPELLING INTEREST IN INTELLIGENT, INFORMED USE OF THE
BALLOT.  IF THE STATE SEEKS TO ASSURE INTELLIGENT USE OF THE BALLOT, IT
MAY NOT TRY TO SERVE THIS INTEREST ONLY WITH RESPECT TO NEW ARRIVALS. 
CF. SHAPIRO V. THOMPSON, SUPRA, AT 637-638. 

IT MAY WELL BE TRUE THAT NEW RESIDENTS AS A GROUP KNOW LESS ABOUT
STATE AND LOCAL ISSUES THAN OLDER RESIDENTS; AND IT IS SURELY TRUE THAT
DURATIONAL RESIDENCE REQUIREMENTS WILL EXCLUDE SOME PEOPLE FROM VOTING
WHO ARE TOTALLY UNINFORMED ABOUT ELECTION MATTERS.  BUT AS DEVICES TO
LIMIT THE FRANCHISE TO KNOWLEDGEABLE RESIDENTS, THE CONCLUSIVE
PRESUMPTIONS OF DURATIONAL RESIDENCE REQUIREMENTS ARE MUCH TOO CRUDE. 
THEY EXCLUDE TOO MANY PEOPLE WHO SHOULD NOT, AND NEED NOT, BE
EXCLUDED.  THEY REPRESENT A REQUIREMENT OF KNOWLEDGE UNFAIRLY IMPOSED
ON ONLY SOME CITIZENS.  WE ARE AWARE THAT CLASSIFICATIONS ARE ALWAYS
IMPRECISE.  BY REQUIRING CLASSIFICATIONS TO BE TAILORED TO THEIR
PURPOSE, WE DO NOT SECRETLY REQUIRE THE IMPOSSIBLE.  HERE, THERE IS
SIMPLY TOO ATTENUATED A RELATIONSHIP BETWEEN THE STATE INTEREST IN AN
INFORMED ELECTORATE AND THE FIXED REQUIREMENT THAT VOTERS MUST HAVE
BEEN RESIDENTS IN THE STATE FOR A YEAR AND THE COUNTY FOR THREE
MONTHS.  GIVEN THE EXACTING STANDARD OF PRECISION WE REQUIRE OF
STATUTES AFFECTING CONSTITUTIONAL RIGHTS, WE CANNOT SAY THAT DURATIONAL
RESIDENCE REQUIREMENTS ARE NECESSARY TO FURTHER A COMPELLING STATE
INTEREST. 

 III 

CONCLUDING THAT TENNESSEE HAS NOT OFFERED AN ADEQUATE JUSTIFICATION
FOR ITS DURATIONAL RESIDENCE LAWS, WE AFFIRM THE JUDGMENT OF THE COURT
BELOW. 

              AFFIRMED. 

/1/  INVOLVED HERE ARE PROVISIONS OF THE TENNESSEE CONSTITUTION, AS
WELL AS PORTIONS OF THE TENNESSEE CODE.  ARTICLE IV, SEC. 1, OF THE
TENNESSEE CONSTITUTION, PROVIDES IN PERTINENT PART: 

"RIGHT TO VOTE-- ELECTION PRECINCTS . . . . -- EVERY PERSON OF THE
AGE OF TWENTY-ONE YEARS, BEING A CITIZEN OF THE UNITED STATES, AND A
RESIDENT OF THIS STATE FOR TWELVE MONTHS, AND OF THE COUNTY WHEREIN
SUCH PERSON MAY OFFER TO VOTE FOR THREE MONTHS, NEXT PRECEDING THE DAY
OF ELECTION, SHALL BE ENTITLED TO VOTE FOR ELECTORS FOR PRESIDENT AND
VICE-PRESIDENT OF THE UNITED STATES, MEMBERS OF THE GENERAL ASSEMBLY
AND OTHER CIVIL OFFICERS FOR THE COUNTY OR DISTRICT IN WHICH SUCH
PERSON RESIDES; AND THERE SHALL BE NO OTHER QUALIFICATION ATTACHED TO
THE RIGHT OF SUFFRAGE. 

"THE GENERAL ASSEMBLY SHALL HAVE POWER TO ENACT LAWS REQUIRING
VOTERS TO VOTE IN THE ELECTION PRECINCTS IN WHICH THEY MAY RESIDE, AND
LAWS TO SECURE THE FREEDOM OF ELECTIONS AND THE PURITY OF THE BALLOT
BOX" 


"QUALIFICATIONS OF VOTERS.-- EVERY PERSON OF THE AGE OF TWENTY-ONE
(21) YEARS, BEING A CITIZEN OF THE UNITED STATES AND A RESIDENT OF THIS
STATE FOR TWELVE (12) MONTHS, AND OF THE COUNTY WHEREIN HE MAY OFFER
HIS VOTE FOR THREE (3) MONTHS NEXT PRECEDING THE DAY OF ELECTION, SHALL
BE ENTITLED TO VOTE FOR MEMBERS OF THE GENERAL ASSEMBLY AND OTHER CIVIL
OFFICERS FOR THE COUNTY OR DISTRICT IN WHICH HE MAY RESIDE." 


"PERSONS ENTITLED TO PERMANENTLY REGISTER-- REQUIRED TIME FOR
REGISTRATION TO BE IN EFFECT PRIOR TO ELECTION.-- ALL PERSONS QUALIFIED
TO VOTE UNDER EXISTING LAWS AT THE DATE OF APPLICATION FOR
REGISTRATION, INCLUDING THOSE WHO WILL ARRIVE AT THE LEGAL VOTING AGE
BY THE DATE OF THE NEX SUCCEEDING PRIMARY OR GENERAL ELECTION
ESTABLISHED BY STATUTE FOLLOWING THE DATE OF THEIR APPLICATION TO
REGISTER (THOSE WHO BECOME OF LEGAL VOTING AGE BEFORE THE DATE OF A
GENERAL ELECTION SHALL BE ENTITLED TO REGISTER AND VOTE IN A LEGAL
PRIMARY ELECTION SELECTING NOMINEES FOR SUCH GENERAL ELECTION), WHO
WILL HAVE LIVED IN THE STATE FOR TWELVE (12) MONTHS AND IN THE COUNTY
FOR WHICH THEY APPLIED FOR REGISTRATION FOR THREE (3) MONTHS BY THE
DATE OF THE NEXT SUCCEEDING ELECTION SHALL BE ENTITLED TO PERMANENTLY
REGISTER AS VOTERS UNDER THE PROVISIONS OF THIS CHAPTER PROVIDED,
HOWEVER, THAT REGISTRATION OR RE-REGISTRATION SHALL NOT BE PERMITTED
WITHIN THIRTY (30) DAYS OF ANY PRIMARY OR GENERAL ELECTION PROVIDED FOR
BY STATUTE.  IF A REGISTERED VOTER IN ANY COUNTY SHALL HAVE CHANGED HIS
RESIDENCE TO ANOTHER COUNTY, OR TO ANOTHER WARD, PRECINCT, OR DISTRICT
WITHIN THE SAME COUNTY, OR CHANGED HIS NAME BY MARRIAGE OR OTHERWISE,
WITHIN NINETY (90) DAYS PRIOR TO THE DATE OF AN ELECTION, HE SHALL BE
ENTITLED TO VOTE IN HIS FORMER WARD, PRECINCT OR DISTRICT OF
REGISTRATION."     /2/  ON JULY 30, THE DISTRICT COURT REFUSED TO GRANT
A PRELIMINARY INJUNCTION PERMITTING BLUMSTEIN AND MEMBERS OF THE CLASS
HE REPRESENTED TO VOTE IN THE AUGUST 6 ELECTION; THE COURT NOTED THAT
TO DO SO WOULD BE "SO OBVIOUSLY DISRUPTIVE AS TO CONSTITUTE AN EXAMPLE
OF JUDICIAL IMPROVIDENCE."  THE DISTRICT COURT ALSO DENIED A MOTION
THAT BLUMSTEIN BE ALLOWED TO CAST A SEALED PROVISIONAL BALLOT FOR THE
ELECTION. 

AT THE TIME THE OPINION BELOW WAS FILED, THE NEXT ELECTION WAS TO BE
HELD IN NOVEMBER 1970, AT WHICH TIME BLUMSTEIN WOULD HAVE MET THE THREE
MONTH PART OF TENNESSEE'S DURATIONAL RESIDENCY REQUIREMENTS.  THE
DISTRICT COURT PROPERLY REJECTED THE STATE'S POSITION THAT THE ALLEGED
INVALIDITY OF THE THREE-MONTH REQUIREMENT HAS BEEN RENDERED MOOT, AND
THE STATE DOES NOT PURSUE ANY MOOTNESS ARGUMENT HERE.  ALTHOUGH
APPELLEE NOW CAN VOTE, THE PROBLEM TO VOTERS POSED BY THE TENNESSEE
RESIDENCE REQUIREMENTS IS "'CAPABLE OF REPETITION, YET EVADING
REVIEW.'"  MOORE V. OGILVIE, 394 U.S. 814, 816 (1969); SOUTHERN PACIFIC
TERMINAL CO. V. ICC, 219 U.S. 498, 515 (1911).  IN THIS CASE, UNLIKE
HALL V. BEALS, 396 U.S. 45 (1969), THE LAWS IN QUESTION REMAIN ON THE
BOOKS, AND BLUMSTEIN HAS STANDING TO CHALLENGE THEM AS A MEMBER OF THE
CLASS OF PEOPLE AFFECTED BY THE PRESENTLY WRITTEN STATUTE. 

/3/  THE IMPORTANT QUESTION IN THIS CASE HAS DIVIDED THE LOWER
COURTS.  DURATIONAL RESIDENCE REQUIREMENTS RANGING FROM THREE MONTHS TO
ONE YEAR HAVE BEEN STRUCK DOWN IN BURG V. CANNIFFEE, 315 F.SUPP.  380
(MASS. 1970); AFFELDT V. WHITCOMB, 319 F.SUPP.  69 (ND IND. 1970);
LESTER V. BOARD OF ELECTIONS FOR DISTRICT OF COLUMBIA, 319 F.SUPP.  505
(DC 1970); BUFFORD V. HOLTON, 319 F.SUPP.  843 (ED VA. 1970); HADNOTT
V. AMOS, 320 F.SUPP.  107 (MD ALA. 1970); KOHN V. DAVIS, 320 F.SUPP. 
246 (VT. 1070); KEPPEL V. DONOVAN, 326 F.SUPP.  15 (MINN. 1970);
ANDREWS V. CODY, 327 F.SUPP.  793 (MDNC 1971), AS WELL AS THIS CASE. 
OTHER DISTRICT COURTS HAVE UPHELD DURATIONAL RESIDENCE REQUIREMENTS OF
A SIMILAR VARIETY.  HOWE V. BROWN, 319 F.SUPP.  862 (ND OHIO 1970);
FERGUSON V. WILLIAMS, 330 F.SUPP.  1012 (ND MISS.  1971); COCANOWER V.
MARSTON, 318 F.SUPP.  402 (ARIZ. 1970); FITSPATRICK V. BOARD OF
ELECTION COMMISSIONERS (ND ILL. 1970); PILIAVIN V. HOEL, 320 F.SUPP. 
66 (WD WIS. 1970); EPPS V. LOGAN (NO. 9137, WD WASH. 1970); FONTHAM V.
MCKEITHEN, 336 F.SUPP.  153 (ED LA. 1971).  IN SIRAK V. BROWN (CIV. NO.
70-164, SD OHIO 1970), THE DISTRICT JUDGE REFUSED TO CONVENE A THREE
JUDGE COURT AND SUMMARILY DISMISSED THE COMPLAINT. 

/4/  NOTING THE LACK OF DISPUTE ON THIS POINT, THE COURT BELOW
SPECIFICALLY FOUND THAT BLUMSTEIN HAD NO INTENTION OF LEAVING NASHVILLE
AND WAS A BONA FIDE RESIDENT OF TENNESSEE.  337 F.SUPP.  323, 324. 

/5/  WHILE IT WOULD BE DIFFICULT TO DETERMINE PRECISELY HOW MANY
WOULD-BE VOTERS THROUGHOUT THE COUNTRY CANNOT VOTE BECAUSE OF
DURATIONAL RESIDENCE REQUIREMENTS, BUT SEE COCANOWER & RICH, RESIDENCY
REQUIREMENTS FOR VOTING, 12 ARIZ.L.REV.  477, 478 AND N. 8 (1970), IT
IS WORTH NOTING THAT DURING THE PERIOD 1947-1970 AN AVERAGE OF
APPROXIMATELY 3.3% OF THE TOTAL NATIONAL POPULATION MOVED INTERSTATE
EACH YEAR.  (AN ADDITIONAL 3.2% OF THE POPULATION MOVED FROM ONE COUNTY
TO ANOTHER INTRASTATE EACH YEAR.)  U.S. DEPT. OF COMMERCE, BUREAU OF
THE CENSUS, CURRENT POPULATION REPORTS, POPULATION CHARACTERISTICS,
SERIES P-20, NO. 210, JAN. 15, 1971, TABLE 1, PP. 7-8. 

/6/  COMPARE KRAMER V. UNION FREE SCHOOL DISTRICT, 395 U.S. 621
(1969), AND SKINNER V. OKLAHOMA, 316 U.S. 535 (1942), WITH WILLIAMSON
V. LEE OPTICAL CO., 348 U.S. 483 (1955); COMPARE MCLAUGHLIN V. FLORIDA,
379 U.S. 184 (1964), HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S.
663 (1966), AND GRAHAM V. RICHARDSON, 403 U.S. 365 (1971), WITH MOREY
V. DOUD, 354 U.S. 457 (1957), AND ALLIED STORES OF OHIO V. BOWERS, 358
U.S. 522 (1959). 

/7/  APPELLANTS ALSO RELY ON POPE V. WILLIAMS, 193 U.S. 621 (1904). 
CAREFULLY READ, THAT CASE SIMPLY HOLDS THAT FEDERAL CONSTITUTIONAL
RIGHTS ARE NOT VIOLATED BY A STATE PROVISION REQUIRING A PERSON WHO
ENTERS THE STATE TO MAKE A "DECLARATION OF HIS INTENTION TO BECOME A
CITIZEN BEFORE HE CAN HAVE THE RIGHT TO BE REGISTERED AS A VOTER AND TO
VOTE IN THE STATE."  ID., AT 634.  IN OTHER WORDS, THE CASE SIMPLY
STANDS FOR THE PROPOSITION THAT A STATE MAY REQUIRE VOTERS TO BE BONA
FIDE RESIDENTS.  SEE INFRA, AT 343-344.  TO THE EXTENT THAT DICTA IN
THAT OPINION ARE INCONSISTENT WITH THE TEST WE APPLY OR THE RESULT WE
REACH TODAY, THOSE DICTA ARE REJECTED. 

/8/  WE NOTE THAT IN THE VOTING RIGHTS ACT OF 1965, AS AMENDED,
CONGRESS SPECIFICALLY FOUND THAT A DURATIONAL RESIDENCE REQUIREMENT
"DENIES OR ABRIDGES THE INHERENT CONSTITUTIONAL RIGHT OF CITIZENS TO
ENJOY THEIR FREE MOVEMENT ACROSS STATE LINES . . . . "  84 STAT. 316,
42 U.S.C. 1973AA-1(A)(2). 

/9/  FOR EXAMPLE, IN CRANDALL V. NEVADA, 6 WALL.  35 (1868), THE TAX
IMPOSED ON PERSONS LEAVING THE STATE BY COMMERCIAL CARRIER WAS ONLY $1,
CERTAINLY A MINIMAL DETERRENT TO TRAVEL.  BUT IN DECLARING THE TAX
UNCONSTITUTIONAL, THE COURT REASONED THAT "IF THE STATE CAN TAX A
RAILROAD PASSENGER ONE DOLLAR, IT CAN TAX HIM ONE THOUSAND DOLLARS,"
ID., AT 46.  IN WARD V. MARYLAND, 12 WALL.  418 (1871), THE TAX ON
NONRESIDENT TRADERS WAS MORE SUBSTANTIAL, BUT THE COURT FOCUSED ON ITS
DISCRIMINATORY ASPECTS, WITHOUT ANYWHERE CONSIDERING THE LAW'S EFFECT,
IF ANY, ON TRADE OR TRADESMEN'S CHOICE OF RESIDENCE.  CF. CHALKER V.
BIRMINGHAM & N.W.R. CO., 249 U.S. 522, 527 (1919); BUT SEE WILLIAMS V.
FEARS, 179 U.S. 270 (1900).  IN TRAVIS V. YALE & TOWNE MFG. CO., 252
U.S. 60, 79-80 (1920), THE COURT HELD THAT NEW YORK COULD NOT DENY
NONRESIDENTS CERTAIN SMALL PERSONAL EXEMPTIONS FROM THE STATE INCOME
TAX ALLOWED RESIDENTS.  THE AMOUNTS WERE CERTAINLY INSUFFICIENT TO
INFLUENCE ANY EMPLOYEE'S CHOICE OF RESIDENCE.  COMPARE TOOMER V.
WITSELL, 334 U.S. 385 (1948), WITH MULLANEY V. ANDERSON, 342 U.S. 415
(1952). 

/10/  SEPARATELY CONCURRING, MR. JUSTICE STEWART CONCLUDED THAT
QUITE APART FROM ANY PURPOSE TO DETER, "A LAW THAT SO CLEARLY IMPINGES
UPON THE CONSTITUTIONAL RIGHT OF INTERSTATE TRAVEL MUST BE SHOWN TO
REFLECT A COMPELLING GOVERNMENTAL INTEREST."  ID., AT 643-644.  SEE
ALSO GRAHAM V. RICHARDSON, 403 U.S.,AT 375. 

/11/  IN HARMAN, THE COURT HELD THAT A VIRGINIA LAW WHICH ALLOWED
FEDERAL VOTERS TO QUALIFY EITHER BY PAYING A POLL TAX OR BY FILING A
CERTIFICATE OF RESIDENCE SIX MONTHS BEFORE THE ELECTION "HANDICAPPED)
EXERCISE" OF THE RIGHT TO PARTICIPATE IN FEDERAL ELECTIONS FREE OF POLL
TAXES, GUARANTEED BY THE TWENTY-FOURTH AMENDMENT.  ID., AT 541. 

/12/  WHERE, FOR EXAMPLE, AN INTERSTATE MIGRANT LOSES HIS DRIVER'S
LICENSE BECAUSE THE NEW STATE HAS A HIGHER AGE REQUIREMENT, A DIFFERENT
CONSTITUTIONAL QUESTION IS PRESENTED.  FOR IN SUCH A CASE, THE NEW
STATE'S AGE REQUIREMENT IS NOT A PENALTY IMPOSED SOLELY BECAUSE THE
NEWCOMER IS A NEW RESIDENT; INSTEAD, ALL RESIDENTS, OLD AND NEW, MUST
BE OF A PRESCRIBED AGE TO DRIVE.  SEE SHAPIRO V. THOMPSON, 394 U.S.
618, 638 N. 21 (1969). 

/13/  AS NOTED INFRA, AT 343-344, STATES MAY SHOW AN OVERRIDING
INTEREST IN IMPOSING AN APPROPRIATE BONA FIDE RESIDENCE REQUIREMENT ON
WOULD-BE VOTERS.  ONE WHO TRAVELS OUT OF A STATE MAY NO LONGER BE A
BONA FIDE RESIDENT, AND MAY NOT BE ALLOWED TO VOTE IN THE OLD STATE. 
SIMILARLY, ONE WHO TRAVELS TO A NEW STATE MAY, IN SOME CASES, NOT
ESTABLISH BONS FIDE RESIDENCE AND MAY BE INELIGIBLE TO VOTE IN THE NEW
STATE.  NOTHING SAID TODAY IS MEANT TO CAST DOUBT ON THE VALIDITY OF
APPROPRIATELY DEFINED AND UNIFORMLY APPLIED BONA FIDE RESIDENCE
REQUIREMENTS. 

/14/  SEE N. 7, SUPRA. 

/15/  SEE FONTHAM V. MCKEITHEN, 336 F.SUPP.,AT 167-168 (WISDOM, J.,
DISSENTING); POPE V. WILLIAMS, 193 U.S. 621 (1904); AND N. 7, SUPRA. 

/16/  SEE, E.G., COCANOWER & RICH, 12 ARIZ.L.REV.,AT 499; MACLEOD &
WILBERDING, STATE VOTING RESIDENCY REQUIREMENTS AND CIVIL RIGHTS, 38
GEO.WASH.L.REV.  93, 113 (1969). 

/17/  OBVIOUSLY, IT COULD NOT BE ARGUED THAT THE THREE-MONTH WAITING
PERIOD IS NECESSARY TO CONFORM RESIDENCE IN THE COUNTY, AND THE ONE
YEAR PERIOD NECESSARY TO CONFIRM RESIDENCE IN THE STATE.  QUITE APART
FROM THE TOTAL IMPLAUSIBILITY OF ANY SUGGESTION THAT ONE TASK SHOULD
TAKE FOUR TIMES AS LONG AS THE OTHER, IT IS SUFFICIENT TO NOTE THAT IF
A PERSON IS FOUND TO BE A BONA FIDE RESIDENT OF A COUNTY WITHIN THE
STATE, HE IS BY DEFINITION A BONA FIDE RESIDENT OF THE STATE AS WELL. 

/18/  SEE, E.G., BROWN V. HOWS, 163 TENN. 178, 42 S.W.2D 210 (1930);
SPARKS V. SPARKS, 114 TENN. 666, 88 S.W. 173 (1905).  SEE GENERALLY
TENNESSEE LAW REVISION COMMISSION, TITLE 2-- ELECTION LAWS, TENTATIVE
DRAFT OF OCTOBER 1971, SEC. 222 AND COMMENT.  SEE N. 22, INFRA. 

/19/  IN THE VOTING RIGHTS ACT AMENDMENTS OF 1970, CONGRESS
ABOLISHED DURATIONAL RESIDENCE REQUIREMENTS AS A PRECONDITION TO VOTING
IN PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS, AND PROHIBITED THE
STATES FROM CUTTING OFF REGISTRATION MORE THAN 30 DAYS PRIOR TO THOSE
ELECTIONS.  THESE LIMITS ON THE WAITING PERIOD A STATE MAY IMPOSE PRIOR
TO AN ELECTION WERE MADE "WITH FULL COGNIZANCE OF THE POSSIBILITY OF
FRAUD AND ADMINISTRATIVE DIFFICULTY."  OREGON V. MITCHELL, 400 U.S.
112, 238 (SEPARATE OPINION OF BRENNAN, WHITE, AND MARSHALL, JJ.).  WITH
THAT AWARENESS, CONGRESS CONCLUDED THAT A WAITING-PERIOD REQUIREMENT
BEYOND 30 DAYS "DOES NOT BEAR A REASONABLE RELATIONSHIP TO ANY
COMPELLING STATE INTEREST IN THE CONDUCT OF PRESIDENTIAL ELECTIONS." 
42 U.S.C. 1973AA-1(A)(6).  AND IN SUSTAINING SEC. 202 OF THE VOTING
RIGHTS ACT OF 1965, WE FOUND "NO EXPLANATION WHY THE 30-DAY PERIOD
BETWEEN THE CLOSING OF NEW REGISTRATIONS AND THE DATE OF ELECTION WOULD
NOT PROVIDE, IN LIGHT OF MODERN COMMUNICATIONS, ADEQUATE TIME TO INSURE
AGAINST . . . FRAUDS."  OREGON V. MITCHELL, SUPRA, AT 239 (SEPARATE
OPINION OF BRENNAN, WHITE, AND MARSHALL, JJ.).  THERE IS NO REASON TO
THINK THAT WHAT CONGRESS THOUGHT WAS UNNECESSARY TO PREVENT FRAUD IN
PRESIDENTIAL ELECTIONS SHOULD NOT ALSO BE UNNECESSARY IN THE CONTEXT OF
OTHER ELECTIONS.  SEE INFRA, AT 354. 

/20/  AS A TECHNICAL MATTER, IT MAKES NO SENSE TO SAY THAT ONE WHO
HAS BEEN A RESIDENT FOR A FIXED DURATION IS PRESUMED TO BE A RESIDENT. 
IN ORDER TO MEET THE DURATIONAL RESIDENCE REQUIREMENT, ONE MUST, BY
DEFINITION, FIRST ESTABLISH THAT HE IS A RESIDENT.  A DURATIONAL
RESIDENCE REQUIREMENT IS NOT SIMPLY A WAITING PERIOD AFTER ARRIVAL IN
THE STATE; IT IS A WAITING PERIOD AFTER RESIDENCE IS ESTABLISHED.  THUS
IT IS CONCEPTUALLY IMPOSSIBLE TO SAY THAT A DURATIONAL RESIDENCE
REQUIREMENT IS AN ADMINISTRATIVELY USEFUL DEVICE TO DETERMINE
RESIDENCE.  THE STATE'S ARGUMENT MUST BE THAT RESIDENCE WOULD BE
PRESUMED FROM SIMPLE PRESENCE IN THE STATE OR COUNTY FOR THE FIXED
WAITING PERIOD. 

/21/  IT SHOULD BE CLEAR THAT THIS ARGUMENT ASSUMES THAT THE STATE
WILL RELIABLY DETERMINE WHETHER THE SWORN CLAIMS OF DURATION IN THE
JURISDICTION ARE THEMSELVES ACCURATE.  WE HAVE ALREADY NOTED THAT THIS
UNLIKELY.  SEE SUPRA, AT 346.  ANOTHER RECURRENT PROBLEM FOR THE
STATE'S POSITION IS THE EXISTENCE OF DIFFERENTIAL DURATIONAL RESIDENCE
REQUIREMENTS.  IF THE STATE PRESUMES RESIDENCE IN THE COUNTY AFTER
THREE MONTHS IN THE COUNTY, THERE IS NO RATIONAL EXPLANATION FOR
REQUIRING A FULL 12 MONTHS' PRESENCE IN THE STATE TO PRESUME RESIDENCE
IN THE STATE. 

/22/  TENNESSEE'S BASIC TEST FOR BONA FIDE RESIDENCE IS (1) AN
INTENTION TO STAY INDEFINITELY IN A PLACE (IN OTHER WORDS, "WITHOUT A
PRESENT INTENTION OF REMOVING THEREFROM," BROWN V. HOWS, 163 TENN.,AT
182, 42 S.W.2D, AT 211), JOINED WITH (2) SOME OBJECTIVE INDICATION
CONSISTENT WITH THAT INTENT, SEE N. 18, SUPRA.  THIS BASIC TEST HAS
BEEN APPLIED IN DIVORCE CASES, SEE, E.G., STURDAVANT V. STURDAVANT, 28
TENN.APP.  273, 189 S.W.2D 410 (1944); BROWN V. BROWN, 150 TENN. 89,
261 S.W. 959 (1924); SPARKS V. SPARKS, 114 TENN. 666, 88 S.W. 173
(1905); IN TAX CASES, SEE, E.G., DENNY V. SUMNER COUNTY, 134 TENN. 468,
184 S.W. 14 (1916); IN ESTATE CASES, SEE, E.G., CALDWELL V. SHELTON, 32
TENN.APP.  45, 221 S.W.2D 815 (1948); HASCALL V. HAFFORD, 107 TENN.
355, 65 S.W. 423 (1901); AND IN VOTING CASES, SEE, E.G., BROWN V. HOWS,
SUPRA; TENNESSEE LAW REVISION COMMISSION, TITLE 2-- ELECTION LAWS,
SUPRA, N. 18. 

/23/  INDEED, IN BLUMSTEIN'S CASE, THE COUNTY ELECTION COMMISSION
EXPLICITLY REJECTED HIS OFFER TO TREAT THE WAITING-PERIOD REQUIREMENT
AS "A WAIVABLE GUIDE TO COMMISSION ACTION, BUT REBUTTABLE UPON A PROPER
SHOWING OF COMPETENCE TO VOTE INTELLIGENTLY IN THE PRIMARY AND GENERAL
ELECTION."  COMPLAINT AT APP. 8.  CF. SKINNER V. OKLAHOMA, 316 U.S.,AT
544-545 (STONE, C.J., CONCURRING). 

/24/  SEE HARMAN V. FORSSENIUS, 380 U.S.,AT 543 (1965) (FILING OF
RESIDENCE CERTIFICATE SIX MONTHS BEFORE ELECTION IN LIEU OF POLL TAX
UNNECESSARY TO INSURE THAT THE ELECTION IS LIMITED TO BONA FIDE
RESIDENTS IN LIGHT OF "NUMEROUS DEVICES TO ENFORCE VALID RESIDENCE
REQUIREMENTS"); CF. SCHNEIDER V. STATE, 308 U.S. 147, 164 (1939) (FEAR
OF FRAUDULENT SOLICITATIONS CANNOT JUSTIFY PERMIT REQUESTS SINCE
"(FRAUDS MAY BE DENOUNCED AS OFFENSES AND PUNISHED BY LAW"). 

/25/  TENN. CODE ANN. SEC. 2-1614 (SUPP. 1970) MAKES IT A FELONY FOR
ANY PERSON WHO "IS NOT LEGALLY ENTITLED TO VOTE AT THE TIME AND PLACE
WHERE HE VOTES OR ATTEMPTS TO VOTE . . . , TO VOTE OR OFFER TO DO SO,"
OR TO AID AND BAET SUCH ILLEGALITY.  TENN. CODE ANN. SEC. 2-2207 (1955)
MAKES IT A MISDEAMEANOR "FOR ANY PERSON KNOWINGLY TO VOTE IN ANY
POLITICAL CONVENTION OR ANY ELECTION HELD UNDER THE CONSTITUTION OR
LAWS OF THIS STATE, NOT BEING LEGALLY QUALIFIED TO VOTE . . . ," AND
TENN. CODE ANN. SEC. 2-2208 (1955) MAKES IT A MISDEMEANOR TO AID IN
SUCH AN OFFENSE, TENN. CODE ANN. SEC. 2-202 (SUPP. 1970) MAKES IT AN
OFFENSE TO VOTE OUTSIDE THE WARD OR PRECINCT WHERE ONE RESIDES AND IS
REGISTERED.  FINALLY, TENN. CODE ANN. SEC. 2-2209 (1955) MAKES IT
UNLAWFUL TO "BRING OR AID IN BRINGING ANY FRAUDULENT VOTERS INTO THIS
STATE FOR THE PURPOSE OF PRACTISING A FRAUD UPON OR IN ANY PRIMARY OF
FINAL ELECTION . . . . "  SEE, E.G., STATE V. WEAVER, 122 TENN. 198,
112 S.W. 465 (1909). 

/26/  WE NOTE THAT IN THE PERIOD SINCE THE DECISION BELOW, SEVERAL
ELECTIONS HAVE BEEN HELD IN TENNESSEE.  WE HAVE BEEN PRESENTED WITH NO
SPECIFIC EVIDENCE OF INCREASED COLONIZATION OR OTHER FRAUD. 

/27/  IT HAS BEEN NOTED ELSEWHERE, AND WITH SPECIFIC REFERENCE TO
TENNESSEE LAW, THAT "(THE HISTORICAL PURPOSE OF (DURATIONAL) RESIDENCY
REQUIREMENTS SEEMS TO HAVE BEEN TO DENY THE VOTE TO UNDESIRABLES,
IMMIGRANTS AND OUTSIDERS WITH DIFFERENT IDEAS."  COCANOWER & RICH, 12
ARIZ.L.REV.,AT 484 AND NN. 44, 45, AND 46.  WE DO NOT RELY ON THIS
ALLEGED ORIGINAL PURPOSE OF DURATIONAL RESIDENCE REQUIREMENTS IN
STRIKING THEM DOWN TODAY. 

/28/  TENNESSEE MAY BE REVEALING THIS IMPERMISSIBLE PURPOSE WHEN IT
OBSERVES: 

"THE FACT THAT THE VOTING PRIVILEGE HAS BEEN EXTENDED TO 18 YEAR OLD
PERSONS . . . INCREASES, RATHER THAN DIMINISHES, THE NEED FOR
DURATIONAL RESIDENCY REQUIREMENTS.  . . . IT IS SO GENERALLY KNOWN, AS
TO BE JUDICIALLY ACCEPTED, THAT THERE ARE MANY POLITICAL SUBDIVISIONS
IN THIS STATE, AND OTHER STATES, WHEREIN THERE ARE COLLEGES,
UNIVERSITIES AND MILITARY INSTALLATIONS WITH SUFFICIENT STUDENT BODY OR
MILITARY PERSONNEL OVER EIGHTEEN YEARS OF AGE, AS WOULD COMPLETELY
DOMINATE ELECTIONS IN THE DISTRICT, COUNTY OR MUNICIPALITY SO LOCATED. 
THIS WOULD OFFER THE MAXIMUM OF OPPORTUNITY FOR FRAUD THROUGH
COLONIZATION, AND PERMIT DOMINATION BY THOSE NOT KNOWLEDGEABLE OR
HAVING A COMMON INTEREST IN MATTERS OF GOVERNMENT, AS OPPOSED TO THE
INTEREST AND THE KNOWLEDGE OF PERMANENT MEMBERS OF THE COMMUNITY.  UPON
COMPLETION OF THEIR SCHOOLING, OR SERVICE TOUR, THEY MOVE ON, LEAVING
THE COMMUNITY BOUND TO A COURSE OF POLITICAL EXPEDIENCY NOT OF ITS
CHOICE AND, IN FACT, ONE OVER WHICH ITS MORE PERMANENT CITIZENS, WHO
WILL CONTINUE TO BE AFFECTED, HAS NO CONTROL."  BRIEF FOR APPELLANTS 15
16. 

/29/  IN THE 1970 VOTING RIGHTS ACT, WHICH ADDED SEC. 201, 42 U.S.C.
1973AA, CONGRESS PROVIDED THAT "NO CITIZEN SHALL BE DENIED, BECAUSE OF
HIS FAILURE TO COMPLY WITH ANY TEST OR DEVICE, THE RIGHT TO VOTE IN ANY
FEDERAL, STATE, OR LOCAL ELECTION . . . . "  THE TERM "TEST OR DEVICE"
WAS DEFINED TO INCLUDE, IN PART, "ANY REQUIREMENT THAT A PERSON AS A
PREREQUISITE FOR VOTING OR REGISTRATION FOR VOTING (1) DEMONSTRATE THE
ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY MATTER, (2)
DEMONSTRATE ANY EDUCATIONAL ACHIEVEMENT OR HIS KNOWLEDGE OF ANY
PARTICULAR SUBJECT . . . . "  BY PROHIBITING VARIOUS "TESTS)" AND
"DEVICES)" THAT WOULD CLEARLY ASSURE KNOWLEDGEABILITY ON THE PART OF
VOTERS IN LOCAL ELECTIONS, CONGRESS DECLARED FEDERAL POLICY THAT PEOPLE
SHOULD BE ALLOWED TO VOTE EVEN IF THEY WERE NOT WELL INFORMED ABOUT THE
ISSUES.  WE UPHELD SEC. 201 IN OREGON V. MITCHELL, SUPRA. 

/30/  H. ALEXANDER, FINANCING THE 1968 ELECTION 106-113 (1971);
AFFELDT V. WHITCOMB, 319 F.SUPP.,AT 77; COCANOWER & RICH, 12
ARIZ.L.REV.,AT 498. 

/31/  THE GENERAL PROVISIONS FOR ABSENTEE VOTING APPLY IN PART TO
"(ANY REGISTERED VOTER OTHERWISE QUALIFIED TO VOTE IN ANY ELECTION TO
BE HELD IN THIS STATE OR ANY COUNTY, MUNICIPALITY, OR OTHER POLITICAL
SUBDIVISION THEREOF, WHO BY REASON OF BUSINESS, OCCUPATION, HEALTH,
EDUCATION, OR TRAVEL, IS REQUIRED TO BE ABSENT FROM THE COUNTY OF HIS
FIXED RESIDENCE ON THE DAY OF THE ELECTION . . . . "  TENN. CODE ANN.
SEC. 2-1602 (SUPP. 1970).  SEE GENERALLY TENN. CODE ANN. SEC. 2-1601 ET
SEQ. (SUPP. 1970).  AN ALTERNATIVE METHOD OF ABSENTEE VOTING FOR ARMED
FORCES MEMBERS AND FEDERAL PERSONNEL IS DETAILED IN TENN. CODE ANN.
SEC. 2-1701 ET SEQ. (SUPP. 1970).  BOTH THOSE PROVISIONS ALLOW PERSONS
WHO ARE STILL TECHNICALLY "RESIDENTS" OF THE STATE OR COUNTY TO VOTE
EVEN THOUGH THEY ARE NOT PHYSICALLY PRESENT, AND EVEN THOUGH THEY ARE
LIKELY TO BE UNINFORMED ABOUT THE ISSUES.  IN ADDITION, TENNESSEE HAS
AN UNUSUAL PROVISION THAT PERMITS PERSONS TO VOTE IN THEIR PRIOR
RESIDENCE FOR A PERIOD AFTER RESIDENCE HAS BEEN CHANGED.  THIS SECTION
PROVIDES, IN PERTINENT PART:  "IF A REGISTERED VOTER IN ANY COUNTY
SHALL HAVE CHANGED HIS RESIDENCE TO ANOTHER COUNTY . . . WITHIN NINETY
(90) DAYS PRIOR TO THE DATE OF AN ELECTION, HE SHALL BE ENTITLED TO
VOTE IN HIS FORMER WARD, PRECINCT OR DISTRICT OF REGISTRATION."  TENN.
CODE ANN. SEC. 2-304 (SUPP. 1970).  SEE ALSO TENN. CODE ANN. SEC. 2-204
(1955). 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACKMUN, CONCURRING IN THE RESULT. 

PROFESSOR BLUMSTEIN OBVIOUSLY COULD HARDLY WAIT TO REGISTER TO VOTE
IN HIS NEW HOME STATE OF TENNESSEE.  HE ARRIVED IN NASHVILLE ON JUNE
12, 1970.  HE MOVED INTO HIS APARTMENT ON JUNE 19.  HE PRESENTED
HIMSELF TO THE REGISTRAR ON JULY 1.  HE INSTITUTED HIS LAWSUIT ON JULY
17.  THUS, HIS LITIGATION WAS BEGUN 35 DAYS AFTER HIS ARRIVAL ON
TENNESSEE SOIL, AND LESS THAN 30 DAYS AFTER HE MOVED INTO HIS
APARTMENT.  BUT A PRIMARY WAS COMING UP ON AUGUST 6.  USUALLY, SUCH
ZEAL TO EXERCISE THE FRANCHISE IS COMMENDABLE.  THE PROFESSOR, HOWEVER,
ENCOUNTERED-- AND, I ASSUME, KNOWINGLY SO-- THE BARRIER OF THE
TENNESSEE DURATIONAL RESIDENCE REQUIREMENT AND, BECAUSE HE DID, HE
INSTITUTED HIS TEST SUIT. 

I HAVE LITTLE QUARREL WITH MUCH OF THE CONTENT OF THE COURT'S LONG
OPINION.  I CONCUR IN THE RESULT, WITH THESE FEW ADDED COMMENTS,
BECAUSE I DO NOT WISH TO BE DESCRIBED ON A LATER DAY AS HAVING TAKEN A
POSITION THAN I THINK NECESSARY FOR THE DISPOSITION OF THIS CASE. 

1.  IN POPE V. WILLIAMS, 193 U.S. 621 (1904), MR. JUSTICE PECKHAM,
IN SPEAKING FOR A UNANIMOUS COURT THAT INCLUDED THE FIRST MR. JUSTICE
HARLAN AND MR. JUSTICE HOLMES, SAID: 

     "THE SIMPLE MATTER TO BE HEREIN DETERMINED IS WHETHER, WITH

  REFERENCE TO THE EXERCISE OF THE PRIVILEGE OF VOTING MARYLAND,

  THE LEGISLATURE OF THAT STATE HAD THE LEGAL RIGHT TO PROVIDE THAT

  A PERSON COMING INTO THE STATE TO RESIDE SHOULD MAKE THE

  DECLARATION OF INTENT A YEAR BEFORE HE SHOULD HAVE THE RIGHT TO

 BE REGISTERED AS A VOTER OF THE STATE. 

        .      .          .          . 

     " . . . THE RIGHT OF A STATE TO LEGISLATE UPON THE SUBJECT OF

  THE ELECTIVE FRANCHISE AS TO IT MAY SEEM GOOD, SUBJECT TO THE

  CONDITIONS ALREADY STATED, BEING, AS WE BELIEVE, UNASSAILABLE, WE

  THINK IT PLAIN THAT THE STATUTE IN QUESTION VIOLATES NO RIGHT

  PROTECTED BY THE FEDERAL CONSTITUTION. 

     THE REASONS WHICH MAY HAVE IMPELLED THE STATE LEGISLATURE TO

  ENACT THE STATUTE IN QUESTION WERE MATTERS ENTIRELY FOR ITS

CONSIDERATION, AND THIS COURT HAS NO CONCERN WITH THEM."  193

  U.S.,AT 632, 633-634. 

I CANNOT SO BLITHELY EXPLAIN POPE V. WILLIAMS AWAY, AS DOES THE COURT,
ANTE, AT 337 N. 7, BY ASSERTING THAT IF THAT OPINION IS "(CAREFULLY
READ," ONE SEES THAT THE CASE WAS CONCERNED SIMPLY WITH A REQUIREMENT
THAT THE NEW ARRIVAL DECLARE HIS INTENTION.  THE REQUIREMENT WAS THAT
HE MAKE THE DECLARATION A YEAR BEFORE HE REGISTERED TO VOTE; TIME AS
WELL AS INTENT WAS INVOLVED.  FOR ME, THEREFORE, THE COURT TODAY REALLY
OVERRULES THE HOLDING IN POPE V. WILLIAMS AND DOES NOT RESTRICT ITSELF,
AS FOOTNOTE 7 SAYS, TO REJECTING WHAT IT SAYS ARE MERE DICTA. 

2.  THE COMPELLING-STATE-INTEREST TEST, AS APPLIED TO A STATE'S
DENIAL OF THE VOTE, SEEMS TO HAVE COME INTO FULL FLOWER WITH KRAMER V.
UNION FREE SCHOOL DISTRICT, 395 U.S. 621, 627 (1969).  THE ONLY
SUPPORTING AUTHORITY CITED IS IN THE "SEE" CONTEXT TO CARRINGTON V.
RASH, 380 U.S. 89, 96 (1965).  BUT AS I READ CARRINGTON, THE STANDARD
THERE EMPLOYED WAS THAT THE VOTING REQUIREMENTS BE REASONABLE.  INDEED,
IN THAT OPINION MR. JUSTICE STEWART OBSERVED, AT 91, THAT THE STATE HAS
"UNQUESTIONED POWER TO IMPOSE REASONABLE RESIDENCE RESTRICTIONS ON THE
AVAILABILITY OF THE BALLOT."  A LIKE APPROACH WAS TAKEN IN MCDONALD V.
BOARD OF ELECTION COMMISSIONERS, 394 U.S. 802, 809 (1969), WHERE THE
COURT REFERRED TO THE NECESSITY OF "SOME RATIONAL RELATIONSHIP TO A
LEGITIMATE STATE END" AND TO A STATUTE'S BEING SET ASIDE "ONLY IF BASED
ON REASONS TOTALLY UNRELATED TO THE PURSUIT OF THAT GOAL."  I MENTION
THIS ONLY TO EMPHASIZE THAT KRAMER APPEARS TO HAVE ELEVATED THE
STANDARD.  AND THIS WAS ONLY THREE YEARS AGO.  WHETHER CARRINGTON AND
MCDONALD ARE NOW FROWNED UPON, AT LEAST IN PART, THE COURT DOES NOT
SAY.  CF. BULLOCK V. CARTER, ANTE, P. 134. 

3.  CLEARLY, FOR ME, THE STATE DOES HAVE A PROFOUND INTEREST IN THE
PURITY OF THE BALLOT BOX AND IN AN INFORMED ELECTORATE AND IS ENTITLED
TO TAKE APPROPRIATE STEPS TO ASSURE THOSE ENDS.  EXCEPT WHERE FEDERAL
INTERVENTION PROPERLY PRESCRIBES OTHERWISE, SEE OREGON V. MITCHELL, 400
U.S. 112 (1970), I SEE NO CONSTITUTIONAL IMPERATIVE THAT VOTING
REQUIREMENTS BE THE SAME IN EACH STATE, OR EVEN THAT A STATE'S TIME
REQUIREMENT RELATE TO THE 30-DAY MEASURE IMPOSED BY CONGRESS BY 42
U.S.C. 1973AA-1(D) FOR PRESIDENTIAL ELECTIONS.  I ASSUME THAT THE COURT
BY ITS DECISION TODAY DOES NOT DEPART FROM EITHER OF THESE
PROPOSITIONS.  I CANNOT BE SURE OF THIS, HOWEVER, FOR MUCH OF THE
OPINION SEEMS TO BE COUCHED IN ABSOLUTE TERMS. 

4.  THE TENNESSEE PLAN, BASED BOTH IN STATUTE AND IN THE STATE'S
CONSTITUTION, IS NOT IDEAL.  I AM CONTENT THAT THE ONE-YEAR AND THREE
MONTH REQUIREMENTS BE STRUCK DOWN FOR WANT OF SOMETHING MORE CLOSELY
RELATED TO THE STATE'S INTEREST.  IT IS, OF COURSE, A MATTER OF LINE
DRAWING, AS THE COURT CONCEDES, ANTE, AT 348.  BUT IF 30 DAYS PASS
CONSTITUTIONAL MUSTER, WHAT OF 35 OR 45 OR 75?  THE RESOLUTION OF THESE
LONGER MEASURES, LESS THAN THOSE TODAY STRUCK DOWN, THE COURT LEAVES, I
SUSPECT, TO THE FUTURE. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

THE HOLDING OF THE COURT IN POPE V. WILLIAMS, 193 U.S. 621 (1904),
IS AS VALID TODAY AS IT WAS AT THE TURN OF THE CENTURY.  IT IS NO MORE
A DENIAL OF EQUAL PROTECTION FOR A STATE TO REQUIRE NEWCOMERS TO BE
EXPOSED TO STATE AND LOCAL PROBLEMS FOR A REASONABLE PERIOD SUCH AS ONE
YEAR BEFORE VOTING, THAN IT IS TO REQUIRE CHILDREN TO WAIT 18 YEARS
BEFORE VOTING.  CF. OREGON V. MITCHELL, 400 U.S. 112 (1970).  IN BOTH
CASES SOME INFORMED AND RESPONSIBLE PERSONS ARE DENIED THE VOTE, WHILE
OTHERS LESS INFORMED AND LESS RESPONSIBLE ARE PERMITTED TO VOTE.  SOME
LINES MUST BE DRAWN.  TO CHALLENGE SUCH LINES BY THE "COMPELLING STATE
INTEREST" STANDARD IS TO CONDEMN THEM ALL.  SO FAR AS I AM AWARE, NO
STATE LAW HAS EVER SATISFIED THIS SEEMINGLY INSURMOUNTABLE STANDARD,
AND I DOUBT ONE EVER WILL, FOR IT DEMANDS NOTHING LESS THAN
PERFECTION. 

THE EXISTENCE OF A CONSTITUTIONAL "RIGHT TO TRAVEL" DOES NOT
PERSUADE ME TO THE CONTRARY.  IF THE IMPOSITION OF A DURATIONAL
RESIDENCE REQUIREMENT FOR VOTING ABRIDGES THE RIGHT TO TRAVEL, SURELY
THE IMPOSITION OF AN AGE QUALIFICATION PENALIZES THE YOUNG FOR BEING
YOUNG, A STATUS I ASSUME THE CONSTITUTION ALSO PROTECTS. 

ROBERT H. ROBERTS, ASSISTANT ATTORNEY GENERAL OF TENNESSEE, ARGUED
THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WERE DAVID M. PACK,
ATTORNEY GENERAL, AND THOMAS E. FOX, DEPUTY ATTORNEY GENERAL. 

JAMES F. BLUMSTEIN, PRO SE, ARGUED THE CAUSE FOR APPELLEE.  WITH HIM
ON THE BRIEF WERE CHARLES MORGAN, JR., AND NORMAN SIEGEL. 

HENRY P. SAILER AND WILLIAM A. DOBROVIR FILED A BRIEF FOR COMMON
CAUSE AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :






FEIN V. SELECTIVE SERVICE SYSTEM, 405 U.S. 365 


       FEIN V. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 7 OF

           YONKERS, 

     NEW YORK, ET AL.

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 70-58.  ARGUED OCTOBER 12, 1971-- DECIDED MARCH 21,

           1972 


FOLLOWING PETITIONER'S CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR BY
HIS LOCAL SELECTIVE SERVICE BOARD, THE STATE DIRECTOR REQUESTED AN
APPEAL.  PETITIONER WAS NOTIFIED BUT WAS NOT FURNISHED WITH THE BASIS
FOR THE APPEAL OR GIVEN AN OPPORTUNITY TO REPLY.  THE APPEAL BOARD
UNANIMOUSLY CLASSIFIED PETITIONER I-A AND REJECTED HIS CONSCIENTIOUS
OBJECTOR CLAIM, WITHOUT STATING ANY REASONS THEREFOR.  PETITIONER WAS
NOT ENTITLED UNDER THE REGULATIONS TO APPEAL TO THE NATIONAL BOARD, BUT
THE NATIONAL DIRECTOR, ON PETITIONER'S REQUEST, DID NOTE AN APPEAL. 
THE NATIONAL BOARD UNANIMOUSLY CLASSIFIED PETITIONER I-A, WITH NO
REASONS GIVEN.  THERE IS NO OUTSTANDING INDUCTION ORDER FOR PETITIONER,
WHO BROUGHT THIS PRE-INDUCTION SUIT CHALLENGING, ON DUE PROCESS
GROUNDS, THE CONSTITUTIONALITY OF HIS SELECTIVE SERVICE APPEAL
PROCEDURES.  THE DISTRICT COURT DISMISSED THE COMPLAINT, FINDING THE
SUIT BARRED BY SEC. 10(B)(3) OF THE MILITARY SELECTIVE SERVICE ACT OF
1967, AND THE COURT OF APPEALS AFFIRMED.  THAT SECTION PROVIDES THAT A
CLASSIFICATION DECISION OF THE LOCAL BOARD "SHALL BE FINAL, EXCEPT
WHERE AN APPEAL ALSO "SHALL BE FINAL."  IT FURTHER PROVIDES THAT "(NO
JUDICIAL REVIEW SHALL BE MADE OF THE CLASSIFICATION OR PROCESSING OF
ANY REGISTRANT . . . EXCEPT AS A DEFENSE TO A CRIMINAL PROSECUTION . .
. AFTER THE REGISTRANT HAS RESPONDED EITHER AFFIRMATIVELY OR NEGATIVELY
TO AN ORDER TO REPORT FOR INDUCTION," AND THEN THE REVIEW "SHALL GO TO
THE QUESTION OF THE JURISDICTION . . . ONLY WHEN THERE IS NO BASIS IN
FACT FOR THE CLASSIFICATION."  BY STATUTE ENACTED IN SEPTEMBER 1971,
AFTER PETITIONER'S TRIAL, A REGISTRANT IS ENTITLED TO A PERSONAL
APPEARANCE BEFORE A LOCAL OR APPEAL BOARD, AND, ON REQUEST, TO A
STATEMENT OF REASONS FOR ANY ADVERSE DECISION.  ENSUING CHANGES IN
REGULATIONS, EFFECTIVE DECEMBER 1971 AND MARCH 1972, PROVIDE THE
PROCEDURAL FEATURES THAT PETITIONER COMPLAINED WERE LACKING.  HELD: 

1.  SECTION 10(B)(3) FORECLOSES PRE-INDUCTION JUDICIAL REVIEW WHERE
THE BOARD HAS USED ITS DISCRETION AND JUDGMENT IN DETERMINING FACTS AND
ARRIVING AT A CLASSIFICATION FOR THE REGISTRANT.  CLARK V. GABRIEL, 393
U.S. 256, FOLLOWED; OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S.
233, DISTINGUISHED.  IN SUCH CASE THE REGISTRANT'S JUDICIAL REVIEW IS
CONFINED TO SITUATIONS WHERE HE ASSERTS HIS DEFENSE IN A CRIMINAL
PROSECUTION OR WHERE, AFTER INDUCTION, HE SEEKS A WRIT OF HABEAS
CORPUS.  PP. 372-377. 

2.  PETITIONER'S IMMEDIATE INDUCTION IS NOT ASSURED, HOWEVER, IN
LIGHT OF THE INTERVENING STATUTORY CHANGE, THE NEW REGULATIONS
THEREUNDER, AND A CHANGE IN THE GOVERNMENT'S POSITION, ALBEIT IN A POST
INDUCTION CASE, TO CONCEDE THAT SOME STATEMENT OF REASONS IS NECESSARY
FOR "MEANINGFUL" REVIEW OF THE ADMINISTRATIVE DECISION WHEN THE
REGISTRANT'S CLAIM HAS MET THE STATUTORY CRITERIA OR HAS PLACED HIM
PRIMA FACIE WITHIN THE STATUTORY EXEMPTION.  PP. 377-381. 

430 F.2D 376, AFFIRMED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN AND WHITE, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 381.  MARSHALL, J., FILED A DISSENTING
OPINION, IN WHICH STEWART, J., JOINED, POST, P. 387.  POWELL AND
REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

PETITIONER OLIVER T. FEIN IS A DOCTOR OF MEDICINE.  IN FEBRUARY 1969
HE FILED THIS PRE-INDUCTION SUIT IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK.  JURISDICTION WAS ASSERTED UNDER
THE FEDERAL-QUESTION STATUTE, 28 U.S.C. 1331, UNDER THE CIVIL RIGHTS
STATUTE, 28 U.S.C. 1343, AND UNDER THE FEDERAL-OFFICER STATUTE, 28
U.S.C. 1361.  FEIN CHALLENGED, ON DUE PROCESS GROUNDS, THE
CONSTITUTIONALITY OF HIS SELECTIVE SERVICE APPEAL PROCEDURES AND SOUGHT
DECLARATORY AND INJUNCTIVE RELIEF THAT WOULD PREVENT HIS INDUCTION INTO
MILITARY SERVICE.  THE DEFENDANTS ARE FEIN'S LOCAL BOARD AT YONKERS,
NEW YORK, THE APPEAL BOARD FOR THE SOUTHERN DISTRICT, THE STATE
SELECTIVE SERVICE DIRECTOR, AND THE NATIONAL APPEAL BOARD. 

IN AN UNREPORTED MEMORANDUM DECISION, THE DISTRICT COURT DISMISSED
THE COMPLAINT FOR WANT OF JURISDICTION.  A DIVIDED PANEL OF THE SECOND
CIRCUIT AFFIRMED.  430 F.2D 376 (1970).  CERTIORARI WAS GRANTED, 401
U.S. 953 (1971), SO THAT THIS COURT MIGHT CONSIDER THE IMPORTANT
QUESTION WHETHER SEC. 10(B)(3) OF THE MILITARY SELECTIVE SERVICE ACT OF
1967, 50 U.S.C. APP. 460(B)(3), /1/  PERMITS THIS PRE-INDUCTION
CHALLENGE TO SELECTIVE SERVICE APPEAL PROCEDURES. 

        I 

FEIN, BORN MAY 5, 1940, REGISTERED WITH HIS YONKERS LOCAL BOARD AT
AGE 18.  HE WAS ASSIGNED A II-S STUDENT DEFERMENT DURING HIS
UNDERGRADUATE YEARS AT SWARTHMORE COLLEGE AND, SUBSEQUENTLY, DURING THE
PERIOD OF HIS ATTENDANCE AT CASE-WESTERN RESERVE UNIVERSITY SCHOOL OF
MEDICINE.  UPON GRADUATION FROM MEDICAL SCHOOL, FEIN WAS ASSIGNED A II
A OCCUPATIONAL DEFERMENT BECAUSE OF HIS INTERNSHIP AT CLEVELAND
METROPOLITAN GENERAL HOSPITAL. 

IN SEPTEMBER 1967, WHILE STILL AN INTERN, FEIN WROTE HIS LOCAL BOARD
"TO DECLARE MYSELF A CONSCIENTIOUS OBJECTOR TO WAR AND THE INSTITUTION
WHICH PROPAGATES WAR, THE MILITARY."  HE REQUESTED AND RECEIVES SSS
FORM 150 FOR CONSCIENTIOUS OBJECTORS.  HE PROMPTLY COMPLETED AND
RETURNED THE FORM TO THE LOCAL BOARD. 

IN THE FORM FEIN STATED:  HE BELIEVES IN A SUPREME BEING.  THE
BELIEFS FROM WHICH HIS CONSCIENTIOUS OBJECTION SPRINGS INCLUDE THE
CONCEPTS THAT "HUMAN BEINGS ARE PRIMARILY 'GOOD,'" THAT THIS GOODNESS
"CAN ONLY BE REALIZED, IF HUMAN BEINGS ARE ALLOWED TO FULFILL THEIR
POTENTIAL," AND THAT "ALL HUMAN BEINGS ARE FUNDAMENTALLY EQUAL, IN
TERMS OF THEIR VALUE AS HUMAN BEINGS."  WAR VIOLATES "THIS ESSENTIAL
BEING IN ALL MEN . . . . "  IT "FOSTERS IRRESPONSIBILITY FOR INHUMAN
AND CRUEL ACTS."  IT "DEMANDS A STYLE OF LIFE, WHICH IS VIOLENT AND
HIERARCHICAL.  IT CURBS AND EXTINGUISHES RATHER THAN EXPANDS MAN'S
POTENTIAL."  THE "SUBSTANCE OF MY BELIEFS STEMS FROM THIS COMMON
FOUNDATION OF ALL RELIGIONS.  THUS MY BELIEFS ARE NOT MERELY A PERSONAL
MORAL CODE, BUT ARE IDEALS WHICH EMANATE FROM CENTURIES OF RELIGIOUS
TRADITION."  HE ATTRIBUTES THE SHAPING OF HIS BELIEFS TO FOUR PRINCIPAL
SOURCES:  HIS PARENTS, THE CHURCH HE FORMERLY BELONGED TO (A LUTHERAN
BODY), THE CIVIL RIGHTS MOVEMENT, AND MEDICINE.  HE BELIEVES "IN THE
POWER AND VALUES OF MORAL AND ETHICAL FORCE," BUT REJECTS "VIOLENT
FORCE" EXCEPT PERHAPS IN DEFENSE OF SELF OR OF A LOVED ONE.  HIS IDEALS
WERE NOT ARTICULATED BY AGE 18, BUT HE BEGAN TO FORMULATE THEM AT
SWARTHMORE.  THEN FOLLOWED A TRIP TO THE SOUTH; HIS BREAK WITH HIS
CHURCH; A SUMMER IN GERMANY WHERE HE LEARNED OF "BIASED AMERICAN
JOURNALISM ABOUT CUBA"; HIS HELPING ORGANIZE A TRIP BY STUDENTS TO
CUBA; HIS INTEREST IN SNCC; HIS WORK IN THE SLUMS OF SAN FRANCISCO; HIS
SETTLING IN CLEVELAND'S "NEGRO GHETTO" DURING HIS FIRST YEAR AT MEDICAL
SCHOOL; HIS THEN "FULL COMMITMENT TO NON-VIOLENCE"; HIS CONTACT WITH
STUDENTS FOR A DEMOCRATIC SOCIETY, WHICH PROVIDED "A FRAMEWORK FOR
WORKING OUT MY IDEALS ABOUT JUSTICE AND EQUALITY"; AND HIS "COMMITMENT
TO COOPERATIVE LIVING AND THE POOR COMMUNITY (WHICH) STANDS AS A MATURE
EXPRESSION OF MY BELIEFS." 

UPON RECEIVING FEIN'S FORM 150 AND LETTERS SUPPORTIVE OF HIS CLAIM,
THE LOCAL BOARD INVITED HIM TO APPEAR PERSONALLY BEFORE IT.  HE DID SO
ON NOVEMBER 15, 1967.  AFTER THE INTERVIEW THE BOARD DENIED HIM A I-O
CLASSIFICATION "AT THIS TIME."  INASMUCH AS FEIN THEN HELD HIS II-A
CLASSIFICATION, THIS ACTION BY THE BOARD WAS CONSISTENT WITH SELECTIVE
SERVICE REGULATION 32 CFR 1623.2 PROVIDING THAT A REGISTRANT BE PLACED
IN THE LOWEST CLASS FOR WHICH HE IS ELIGIBLE. 

IN FEBRUARY 1968, HOWEVER, FEIN WAS RECLASSIFIED I-A.  HE
IMMEDIATELY ASKED FOR ANOTHER PERSONAL APPEARANCE BEFORE THE BOARD. 
THE REQUEST WAS GRANTED AND HE APPEARED ON MAY 27.  THE BOARD THEN
CLASSIFIED HIM AS I-O AND THUS GAVE HIM HIS DESIRED CONSCIENTIOUS
OBJECTOR CLASSIFICATION. 

ON JUNE 4 THE STATE DIRECTOR, PURSUANT TO 32 CFR 1626.1, WROTE THE
APPEAL BOARD REQUESTING AN APPEAL AND STATING, "IT IS OUR OPINION THAT
THE REGISTRANT WOULD NOT QUALIFY FOR A I-O CLASSIFICATION AS A
CONSCIENTIOUS OBJECTOR."  NOTICE OF THIS WAS GIVEN DR. FEIN BY MAIL. 
FEIN THEN WROTE SEEKING "A STATEMENT INDICATING THE BASIS FOR THE STATE
DIRECTOR'S APPEAL" AND AN OPPORTUNITY TO REPLY.  NO EXPLANATION WAS
FORTHCOMING. 

THE LOCAL BOARD FORWARDED THE FILE TO THE APPEAL BOARD. 
ACCOMPANYING THE FILE WAS A SO-CALLED "BRIEF."  THIS, AS PETITIONER HAS
CONCEDED, /2/  WAS MERELY A SUMMARY OF THE FILE PREPARED BY A LAY
EMPLOYEE OF THE BOARD.  THE APPEAL BOARD, BY A UNANIMOUS 4-0 VOTE ON
JUNE 20, CLASSIFIED DR. FEIN I-A AND THUS REJECTED HIS CLAIM TO
CONSCIENTIOUS OBJECTOR STATUS.  THE BOARD STATED NO REASONS FOR ITS
DECISION.  FEIN WAS NOTIFIED OF HIS RECLASSIFICATION. 

UNDER 32 CFR 1627.3 /3/  A REGISTRANT WAS NOT ENTITLED TO TAKE AN
APPEAL TO THE PRESIDENTIAL, OR NATIONAL, APPEAL BOARD FROM AN ADVERSE
CLASSIFICATION BY THE STATE APPEAL BOARD MADE BY A UNANIMOUS VOTE. 
FEIN WAS IN THIS POSITION.  ACCORDINGLY, HE WROTE THE NATIONAL DIRECTOR
OF SELECTIVE SERVICE IN JULY AND ASKED THAT THE DIRECTOR APPEAL ON HIS
BEHALF UNDER 32 CFR 1627.1(A).  FEIN'S LETTER TO THE DIRECTOR WAS
DETAILED.  IT EMPHASIZED HIS ABOVE-STATED BELIEFS AND THE WAY OF LIFE
TO WHICH THOSE BELIEFS HAD GUIDED HIM.  "IT SHOULD BE CLEAR, THAT I AM
WILLING TO SERVE MY COUNTRY, BUT ONLY IN ACTIVITIES CONSISTENT WITH MY
CONSCIENCE."  FEIN OUTLINED THE ADMINISTRATIVE PROCEEDINGS AND LISTED
FIVE CLAIMED INEQUITIES:  (1) THE APPEAL BOARD'S REJECTION, UPON THE
APPEAL BY THE STATE DIRECTOR, OF THE LOCAL BOARD'S CLASSIFICATION; (2)
THE FAILURE OF THE DIRECTOR TO STATE THE BASIS FOR HIS CHALLENGE; (3)
THE ABSENCE OF AN OPPORTUNITY TO SUBMIT SUPPLEMENTAL INFORMATION BEFORE
THE FILE WAS FORWARDED; (4) THE ABSENCE OF AN OPPORTUNITY TO REBUT THE
STATE DIRECTOR'S DECISION TO TAKE AN APPEAL; AND (5) THE ABSENCE OF AN
OPPORTUNITY FOR A PERSONAL APPEARANCE BEFORE THE APPEAL BOARD. 

ON JULY 31 FEIN WAS ORDERED TO REPORT FOR INDUCTION SEPTEMBER 6. 

THE NATIONAL DIRECTOR, HOWEVER, COMPLIED WITH FEIN'S REQUEST AND
NOTED AN APPEAL.  FEIN'S OUTSTANDING INDUCTION ORDER WAS CANCELED.  HE
AGAIN ASKED THE STATE DIRECTOR FOR A STATEMENT OF REASONS.  HE WAS NOW
ADVISED THAT IN THE STATE DIRECTOR'S OPINION HE DID NOT QUALIFY FOR A
CLASS I-O DEFERMENT AND THAT THE DECISION TO APPEAL "WAS BASED UPON THE
INFORMATION CONTAINED IN (HIS) SELECTIVE SERVICE FILE." 

ON NOVEMBER 26, 1968, THE NATIONAL BOARD, BY A VOTE OF 3-0,
CLASSIFIED DR. FEIN I-A.  NO REASON FOR THIS ACTION WAS STATED. 

NO NEW ORDER THAT FEIN REPORT FOR INDUCTION HAS BEEN ISSUED. 

FEIN THEN INSTITUTED THIS SUIT.  THE COMPLAINT ALLEGED THAT THE
STATUTE AND REGULATIONS GOVERNING FEIN'S CLASSIFICATION AND APPEAL
VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT IN THAT THEY DID
NOT PROVIDE FOR A STATEMENT OF REASONS TO THE REGISTRANT FOR THE STATE
DIRECTOR'S DECISION TO APPEAL, OR FOR THE APPEAL BOARD'S SUBSEQUENT
DECISION DENYING FEIN A I-O CLASSIFICATION.  IT ALSO ALLEGED THAT THE
DEFENDANTS ACTED UNCONSTITUTIONALLY BY FAILING TO PROVIDE FEIN WITH THE
STATEMENTS OF REASONS, BY FAILING TO PERMIT HIM TO SUBMIT ADDITIONAL
MATERIAL FOR CONSIDERATION BY THE APPEAL BOARDS, AND BY REFUSING HIM AN
OPPORTUNITY TO REBUT THE STATE DIRECTOR'S DECISION TO APPEAL. 

THE DISTRICT COURT DID NOT REACH THE MERITS OF THE CONSTITUTIONAL
CLAIMS.  WHILE EXPRESING CONCERN ABOUT FEIN'S ABILITY TO ESTABLISH
JURISDICTION, THE COURT ASSUMED, ARGUENDO, THAT HE HAD DONE SO, BUT
THEN CONCLUDED THAT THE SUIT WAS BARRED BY SEC. 10(B)(3). 

THE SECOND CIRCUIT AFFIRMED, 430 F.2D, AT 377-380, RELYING, AS DID
THE DISTRICT COURT, UPON OESTEREICH V. SELECTIVE SERVICE BOARD, 393
U.S. 233 (1968); CLARK V. GABRIEL, 393 U.S. 256 (1968); AND BOYD V.
CLARK, 287 F.SUPP.  561 (SDNY 1968), AFF'D, 393 U.S. 316 (1969).  ONE
JUDGE, IN SEPARATE CONCURRENCE, 430 F.2D, AT 380, ALSO THOUGHT THAT
FEIN HAD FAILED TO ESTABLISH THE JURISDICTIONAL AMOUNT REQUIRED UNDER
28 U.S.C. 1331.  THE THIRD JUDGE, CITING THE SAME CASES AS DID THE
MAJORITY, DISSENTED ON THE STATUTORY ISSUE; ON THE MERITS HE WOULD HAVE
RULED IN FEIN'S FAVOR.  430 F.2D, AT 380-388. 

        II 

THE CASE PIVOTS, OF COURSE, UPON THE MEANING AND REACH OF SEC.
10(B)(3), AND THIS COURT'S DECISIONS IN OESTEREICH, GABRIEL, AND BOYD,
ALL SUPRA, AND IN BREEN V. SELECTIVE SERVICE BOARD, 396 U.S. 460
(1970). 

LOCAL BOARD "SHALL BE FINAL, EXCEPT WHERE AN APPEAL IS AUTHORIZED . . .
" AND THAT THE CLASSIFICATION DECISION ON APPEAL ALSO "SHALL BE FINAL. 
. . . "  IT FURTHER PROVIDES, "NO JUDICIAL REVIEW SHALL BE MADE OF THE
CLASSIFICATION OR PROCESSING OF ANY REGISTRANT . . . EXCEPT AS A
DEFENSE TO A CRIMINAL PROSECUTION . . . AFTER THE REGISTRANT HAS
RESPONDED EITHER AFFIRMATIVELY OR NEGATIVELY TO AN ORDER TO REPORT FOR
INDUCTION . . . . "  EVEN THEN, THE REVIEW "SHALL GO TO THE QUESTION OF
THE JURISDICTION . . . ONLY WHEN THERE IS NO BASIS IN FACT FOR THE
CLASSIFICATION . . . . " 

THE FINALITY LANGUAGE APPEARED IN CONSCRIPTION STATUTE PRIOR TO THE
1967 ACT.  SEE SELECTIVE DRAFT ACT OF MAY 18, 1917, SEC. 4, 40 STAT.
80; SELECTIVE TRAINING AND SERVICE ACT OF 1940, SEC. 10(A)(2), 54 STAT.
893; AND SELECTIVE SERVICE ACT OF 1948, SEC. 10(B)(3), 62 STAT. 619. 
THE COURT CONSTRUED THIS FINALITY LANGUAGE, HOWEVER, AS INDICATING A
CONGRESSIONAL INTENT TO RESTRICT ONLY THE SCOPE OF JUDICIAL REVIEW AND
NOT TO DEPRIVE THE REGISTRANT OF ALL ACCESS TO THE COURTS.  SEE, FOR
EXAMPLE, ESTEP V. UNITED STATES, 327 U.S. 114 (1946), AND MCKART V.
UNITED STATES, 395 U.S. 185 (1969).  BUT JUDICIAL RELIEF WAS CONFINED
TO THE "NO BASIS IN FACT" SITUATION.  ESTEP, SUPRA, AT 122-123; MCKART,
SUPRA, AT 196. 

THE "EXCEPT" CLAUSE AND THE "NO BASIS IN FACT" LANGUAGE CAME INTO
SEC. 10(B)(3) WITH THE 1967 STATUTE BY WAY OF PROMPT CONGRESSIONAL
REACTION PROVOKED BY THE SECOND CIRCUIT'S DECISION IN WOLFF V.
SELECTIVE SERVICE LOCAL BD., 372 F.2D 817 (1967).  SEE H.R. REP. NO.
267, 90TH CONG., 1ST SESS., 30-31; 113 CONG.REC.  15426.  /4/ 

OESTEREICH THE COURT REFRAINED FROM STRIKING DOWN THE STATUTE ON
CONSTITUTIONAL GROUNDS.  IT HELD, HOWEVER, THAT PRE-INDUCTION JUDICIAL
REVIEW WAS AVAILABLE TO THAT PETITIONER WHO, AS A DIVINITY STUDENT,
CLAIMED HIS LOCAL BOARD HAD WRONGFULLY DENIED HIM A STATUTORY EXEMPTION
FROM MILITARY SERVICE.  TO RULE OTHERWISE "IS TO CONSTRUE THE ACT WITH
UNNECESSARY HARSHNESS."  AND, "NO ONE, WE BELIEVE, SUGGESTS THAT SEC.
10(B)(3) CAN SUSTAIN A LITERAL READING."  THIS CONSTRUCTION, IT WAS
SAID, LEAVES THE SECTION "UNIMPAIRED IN THE NORMAL OPERATIONS OF THE
ACT."  393 U.S.,AT 238.  SEE GUTKNECHT V. UNITED STATES, 396 U.S. 295,
303 (1970), WHERE REFERENCE WAS MADE TO THE "UNUSUAL CIRCUMSTANCES" OF
OESTEREICH. 

IN THE COMPANION GABRIEL CASE, ON THE OTHER HAND, THE REGISTRANT WAS
ASSERTING A CONSCIENTIOUS OBJECTOR CLAIM.  THE COURT SAID: 

"OESTEREICH, AS A DIVINITY STUDENT, WAS BY STATUTE UNCONDITIONALLY
ENTITLED TO EXEMPTION.  HERE, BY CONTRAST, THERE IS NO DOUBT OF THE
BOARD'S STATUTORY AUTHORITY TO TAKE ACTION WHICH APPELLEE CHALLENGES,
AND THAT ACTION INESCAPABLY INVOLVES A DETERMINATION OF FACT AND AN
EXERCISE OF JUDGMENT . . . TO ALLOW PRE-INDUCTION JUDICIAL REVIEW OF
SUCH DETERMINATIONS WOULD BE TO PERMIT PRECISELY THE KIND OF 'LITIGIOUS
INTERRUPTIONS OF PROCEDURES TO PROVIDE NECESSARY MILITARY MANPOWER'
(113 CONG.REC.  15426 (REPORT BY SENATOR RUSSELL ON CONFERENCE
COMMITTEE ACTION)) WHICH CONGRESS SOUGHT TO PREVENT WHEN IT ENACTED
SEC. 10(B)(3)."  393 U.S.,AT 258-259.  THE CONSTITUTIONALITY OF THE
STATUTE AGAIN WAS UPHELD.  ID., AT 259.  MR. JUSTICE DOUGLAS,
SEPARATELY CONCURRING, NOTED HYPOTHETICAL FACT SITUATIONS AS TO WHICH
HE MIGHT TAKE A DIFFERENT VIEW AND THEN OBSERVED: 

     "BUT IN MY VIEW IT TAKES THE EXTREME CASE WHERE THE BOARD CAN

  BE SAID TO FLOUT THE LAW, AS IT DID IN OESTEREICH V. SELECTIVE

  SERVICE BD., (393 U.S. 233), TO WARRANT PRE-INDUCTION REVIEW OF

 ITS ACTIONS."  393 U.S.,AT 260. 

OESTEREICH WAS COMPLEMENTED BY BREEN A YEAR LATER WITH RESPECT TO A
REGISTRANT STATUTORILY ENTITLED TO A DEFERMENT RATHER THAN TO AN
EXEMPTION.  SEE ALSO KOLDEN V. SELECTIVE SERVICE BOARD, 397 U.S. 47
(1970).     FINALLY, PRE-INDUCTION REVIEW WAS DENIED UNDER SEC.
10(B)(3) IN BOYD V. CLARK, 287 F.SUPP.  561 (SDNY 1968), A DECISION
AFFIRMED HERE, 393 U.S. 316 (1969), WITH ONLY A SINGLE REFERENCE TO
GABRIEL, DECIDED JUST FOUR WEEKS BEFORE.  IN BOYD, FOUR REGISTRANTS,
EACH CLASSIFIED I-A, CHALLENGED STUDENT DEFERMENT ON THE GROUND THAT IT
DISCRIMINATED AGAINST THOSE FINANCIALLY UNABLE TO ATTEND COLLEGE.  THEY
DID NOT OTHERWISE CONTEST THEIR OWN I-A CLASSIFICATIONS. 

THUS OESTEREICH, GABRIEL, BREEN, AND BOYD TOGETHER ESTABLISH THE
PRINCIPLES (A) THAT SEC. 10(B)(3) DOES NOT FORECLOSE PRE-INDUCTION
JUDICIAL REVIEW IN THAT RATHER RARE INSTANCE WHERE ADMINISTRATIVE
ACTION, BASED ON REASONS UNRELATED TO THE MERITS OF THE CLAIM TO
EXEMPTION OR DEFERMENT, DEPRIVES THE REGISTRANT OF THE CLASSIFICATION
TO WHICH, OTHERWISE AND CONCEDEDLY, HE IS ENTITLED BY STATUTE, AND (B)
THAT SEC. 10(B)(3) DOES FORECLOSE PRE-INDUCTION JUDICIAL REVIEW IN THE
MORE COMMON SITUATION WHERE THE BOARD, AUTHORITATIVELY, HAS USED ITS
DISCRETION AND JUDGMENT IN DETERMINING FACTS AND IN ARRIVING AT A
CLASSIFICATION FOR THE REGISTRANT.  IN THE LATTER CASE THE REGISTRANT'S
JUDICIAL REVIEW IS CONFINED-- AND CONSTITUTIONALLY SO-- TO THE
SITUATIONS WHERE HE ASSERTS HIS DEFENSE IN A CRIMINAL PROSECUTION OR
WHERE, AFTER INDUCTION, HE SEEKS A WRIT OF HABEAS CORPUS.  BY THESE
CASES THE COURT ACCOMMODATED CONSTITUTIONAL COMMANDS WITH THE SEVERAL
PROVISIONS OF THE MILITARY SELECTIVE SERVICE ACT AND THE EXPRESSED
CONGRESSIONAL INTENT TO PREVENT LITIGIOUS INTERRUPTION OF THE SELECTIVE
SERVICE PROCESS. 

        III 

THESE PRINCIPLES DO NOT AUTOMATICALLY DECIDE FEIN'S CASE.  THE
DOCTOR, UNLIKE OESTEREICH AND UNLIKE BREEN, CANNOT AND DOES NOT CLAIM A
STATUTORY EXEMPTION OR A STATUTORY DEFERMENT ON THE BASIS OF
OBJECTIVELY ESTABLISHED AND CONCEDED STATUS.  ON THE OTHER HAND, WHILE
GABRIEL FOCUSES ON THE ADMINISTRATIVE AND DISCRETIONARY PROCESS, IT
DOES NOT NECESSARILY FORECLOSE FEIN'S CLAIM.  THIS IS SO BECAUSE FEIN
CHALLENGES THE CONSTITUTIONALITY OF THE VERY ADMINISTRATIVE PROCEDURES
BY WHICH, HE CLAIMS, THE PRESENTATION OF HIS CASE WAS ADVERSELY
AFFECTED. 

THIS WAS THE ASPECT OF THE OESTEREICH AND BREEN DECISIONS THAT
CONCERNED MR. JUSTICE HARLAN.  393 U.S.,AT 239; 396 U.S.,AT 468-469. 
HE WOULD HAVE ALLOWED PRE-INDUCTION JUDICIAL REVIEW OF A PROCEDURAL
CHALLENGE ON CONSTITUTIONAL GROUNDS IF IT PRESENTED NO "OPPORTUNITY FOR
PROTRACTED DELAY" IN THE SYSTEM'S OPERATIONS, AND IF THE ISSUE WAS
BEYOND THE COMPETENCE OF THE BOARD TO HEAR AND DETERMINE.  THIS VIEW,
HOWEVER, COMMANDED THE VOTE OF NO OTHER MEMBER OF THE COURT. 

WE AGAIN CONCLUDE THAT THE LINE DRAWN, BY THE COURT BETWEEN
OESTEREICH AND BREEN, ON THE ONE HAND, AND GABRIEL AND, INFERENTIALLY,
BOYD, ON THE OTHER, IS THE APPROPRIATE PLACE AT WHICH, IN THE FACE OF
THE BAR OF SEC. 10(B)(3), TO DISTINGUISH BETWEEN AVAILABILITY AND
UNAVAILABILITY OF PRE-INDUCTION REVIEW.  WE THEREFORE ADHERE TO THE
PRINCIPLES ESTABLISHED BY THOSE CASES. 

WE FURTHER CONCLUDE THAT, AS MEASURED AGAINST THE FACTS OF FEIN'S
CASE, IT IS GABRIEL, AND NOT OESTEREICH AND BREEN, THAT IS
CONTROLLING.  UNLIKE THE REGISTRANTS IN OESTEREICH AND BREEN, FEIN'S
CLAIMED STATUS IS NOT ONE THAT WAS FACTUALLY CONCEDED AND THUS WAS
ASSURED BY THE STATUTE UPON OBJECTIVE CRITERIA.  HIS ADMINISTRATIVE
CLASSIFICATION ACTION WAS, IN CONTRAST, A PRODUCT OF THE "PROCESS" AND
THE "SYSTEM OF CLASSIFICATION," AS THE PETITIONER STRESSED AT ORAL
ARGUMENT.  /5/  IT TURNED "ON THE WEIGHT AND CREDIBILITY OF THE
TESTIMONY," AS MR. JUSTICE DOUGLAS NOTED IN HIS CONCURRENCE IN GABRIEL,
393 U.S.,AT 259.  AND IT WAS "DEPENDENT UPON AN ACT OF JUDGMENT BY THE
BOARD."  GABRIEL, 393 U.S.,AT 258. 

THE CASE STRIKES US, AS DID GABRIEL, AS REPRESENTATIVE OF A CATEGORY
THAT, IF ALLOWED PRE-INDUCTION REVIEW, WOULD TEND TO PROMOTE THE
"LITIGIOUS INTERRUPTIONS OF PROCEDURES TO PROVIDE NECESSARY MILITARY
MANPOWER" THAT CONGRESS INTENDED TO PREVENT.  113 CONG.REC.  15426. 
THE CONSCIENTIOUS OBJECTOR CLAIM IS ONE IDEALLY FIT FOR ADMINISTRATIVE
DETERMINATION. 

WE ARE NOT PERSUADED, AS HAS BEEN SUGGESTED, /6/  THAT THE LOCAL
BOARD'S GRANT OF THE I-O CLASSIFICATION EQUATES WITH THE CONCEDED
EXEMPTION AND DEFERMENT INVOLVED IN OESTEREICH AND BREEN.  OBJECTIVE
CERTAINTY OF STATUS IS LACKING; IN ADDITION, THE RESPECTIVE RULINGS OF
THE TWO APPEAL BOARDS WERE THEMSELVES BASED ON AN EVALUATION OF THE
SAME FILE AND YET WERE OPPOSITE TO THAT OF THE LOCAL BOARD.  IT IS TRUE
THAT IN OESTEREICH AND BREEN A RESULT FAVORABLE TO THE REGISTRANT WAS
ALSO REVERSED, BUT THERE THE CHANGE CAME ABOUT ONLY BY THE BOARD'S
CONSIDERATION OF EXTRANEOUS CIRCUMSTANCES APART FROM THE MERITS OF THE
UNDERLYING CLAIMS. 

FINALLY, WE FIND NO MERIT IN THE PETITIONER'S ARGUMENT, APPARENTLY
ASSERTED FOR THE FIRST TIME IN THIS COURT, THAT A LOCAL BOARD'S
DETERMINATION, ON A CONSCIENTIOUS OBJECTOR CLAIM, FAVORABLE TO THE
REGISTRANT IS NOT AMENABLE TO THE APPEAL PROCEDURES PRESCRIBED BY THE
ACT.  SECTION 10(B)(3), BY ITS TERMS, MAKES A BOARD'S DECISION FINAL
SUBJECT TO APPEAL AND WE SEE NO CONFINEMENT OF THAT RIGHT OF APPEAL TO
THE REGISTRANT ALONE SO AS TO NULLIFY THE REGULATIONS' EXPRESS GRANT OF
APPELLATE POWER TO THE STATE DIRECTOR AS WELL AS TO THE REGISTRANT. 
THE STATUTE, FURTHERMORE, IS SPECIFIC AS TO THE PRESIDENT'S RIGHT TO
REVIEW. 

THE CONCLUSION WE HAVE REACHED MAKES IT UNNECESSARY TO CONSIDER IN
ANY DETAIL THE PROPOSITIONS, URGED BY THE RESPONDENTS, THAT THE
PETITIONER HAS NOT DEMONSTRATED THE PRESENCE OF THE JURISDICTIONAL
AMOUNT REQUIRED UNDER 28 U.S.C. 1331, AND THAT HIS ARGUMENTS ARE
PREMATURE BECAUSE HE IS PRESENTLY NOT THE SUBJECT OF AN OUTSTANDING
INDUCTION ORDER. 

        IV 

ALL OF THIS DOES NOT MEAN, HOWEVER, THAT THIS DECISION ASSURES DR.
FEIN'S IMMEDIATE INDUCTION INTO MILITARY SERVICE.  EVENTS SINCE THE
INCEPTION AND TRIAL OF THE CASE INDICATE OTHERWISE: 

A. THE 1971 STATUTE.  BY PUB. L. 92-129, SEC. 101(A)(36), 85 STAT.
353, APPROVED SEPTEMBER 28, 1971, THE FOLLOWING NEW SECTION, 50 U.S.C.
APP. 471A (1970) ED. SUPP. I), WAS ADDED TO THE 1967 ACT,  NOW RENAMED
THE MILITARY SELECTIVE SERVICE ACT:

 "PROCEDURAL RIGHTS 

     "SEC. 22.  (A) IT IS HEREBY DECLARED TO BE THE PURPOSE OF THIS

  SECTION TO GUARANTEE TO EACH REGISTRANT ASSERTING A CLAIM BEFORE

  A LOCAL OR APPEAL BOARD, A FAIR HEARING CONSISTENT WITH THE

  INFORMAL AND EXPEDITIOUS PROCESSING WHICH IS REQUIRED BY

  SELECTIVE SERVICE CASES. 

     "(B) PURSUANT TO SUCH RULES AND REGULATIONS AS THE PRESIDENT
MAY PRESCRIBE-- 

     "(1) EACH REGISTRANT SHALL BE AFFORDED THE OPPORTUNITY TO

  APPEAR IN PERSON BEFORE THE LOCAL OR ANY APPEAL BOARD OF THE

  SELECTIVE SERVICE SYSTEM TO TESTIFY AND PRESENT EVIDENCE

  REGARDING HIS STATUS. 

        .          .          .     . 

     "(4) IN THE EVENT OF A DECISION ADVERSE TO THE CLAIM OF A

  REGISTRANT, THE LOCAL OR APPEAL BOARD MAKING SUCH DECISION SHALL,

  UPON REQUEST, FURNISH TO SUCH REGISTRANT A BRIEF WRITTEN

  STATEMENT OF THE REASONS FOR ITS DECISION." 

A REGISTRANT THUS IS NOW STATUTORILY ENTITLED TO A PERSONAL APPEARANCE
BEFORE A LOCAL OR APPEAL BOARD AND, ON REQUEST, TO A STATEMENT OF
REASONS FOR ANY DECISION OF THE BOARD ADVERSE TO HIM.  THIS 1971
ADDITION TO THE STATUTE DOES NOT, BY ITS TERMS, PURPORT TO BE
RETROACTIVE. 

B. THE EMERGING REGULATIONS.  IN IMPLEMENTATION OF THE NEW STATUTE,
THE ADMINISTRATIVE REGULATIONS HAVE BEEN UNDERGOING CHANGE.  SOME
AMENDMENTS WERE PROMULGATED EFFECTIVE DECEMBER 10, 1971.  36 FED.REG. 
23374-23385.  OTHERS WERE PROMULGATED EFFECTIVE MARCH 11, 1972.  37
FED.REG.  5120-5127.  FROM THESE IT APPEARS THAT ALL, OR NEARLY ALL,
THE PROCEDURAL FEATURES ABOUT WHICH DR. FEIN COMPALINS IN THE PRESENT
CASE HAVE BEEN CHANGED ADMINISTRATIVELY.  SPECIFICALLY:  (1) WHEN AN
APPEAL IS TAKEN BY THE STATE DIRECTOR "HE SHALL PLACE IN THE
REGISTRANT'S FILE A WRITTEN STATEMENT OF HIS REASONS FOR TAKING SUCH
APPEAL."  THE LOCAL BOARD SHALL NOTIFY THE REGISTRANT IN WRITING OF THE
ACTION AND THE REASONS THEREFOR, AND ADVISE HIM THAT THE REGISTRANT MAY
REQUEST A PERSONAL APPEARANCE BEFORE THE APPEAL BOARD.  SECS. 1626.3(A)
AND (B).  (2) AT SUCH PERSONAL APPEARANCE THE REGISTRANT MAY PRESENT
EVIDENCE, DISCUSS HIS CLASSIFICATION, POINT OUT THE CLASS OR CLASSES IN
WHICH HE THINKS HE SHOULD HAVE BEEN PLACED, AND MAY DIRECT ATTENTION TO
ANY INFORMATION IN HIS FILE THAT HE BELIEVES THE LOCAL BOARD HAS
OVERLOOKED OR TO WHICH IT HAS GIVEN INSUFFICIENT WEIGHT.  HE MAY
PRESENT SUCH FURTHER INFORMATION AS HE BELIEVES WILL ASSIST THE BOARD. 
THE REGISTRANT, HOWEVER, MAY NOT BE REPRESENTED BEFORE AN APPEAL BOARD
BY ANYONE ACTING AS ATTORNEY AND HE SHALL NOT BE ENTITLED TO PRESENT
WITNESSES.  SECS. 1624.4(E) AND (D).  (3) IF THE APPEAL BOARD
CLASSIFIES THE REGISTRANT IN A CLASS OTHER THAN THE ONE HE REQUESTED,
IT SHALL RECORD ITS REASONS THEREFOR IN HIS FILE.  THE LOCAL BOARD
SHALL INFORM THE REGISTRANT OF SUCH REASONS IN WRITING AT THE TIME IT
MAILS HIS NOTICE OF CLASSIFICATION.  SEC. 1626.4(I).  (4) ON THE
DIRECTOR'S APPEAL TO THE NATIONAL BOARD THE REGISTRANT MAY REQUEST AN
APPEARANCE.  SEC. 1627.3(D).  AT THAT APPEARANCE THE REGISTRANT MAY
PRESENT EVIDENCE, OTHER THAN WITNESSES, BEARING ON HIS CLASSIFICATION. 
THERE, TOO, HE MAY DISCUSS HIS CLASSIFICATION, POINT OUT THE CLASS OR
CLASSES IN WHICH HE THINKS HE SHOULD HAVE BEEN PLACED, AND DIRECT
ATTENTION TO ANY INFORMATION IN HIS FILE THAT HE BELIEVES THE LOCAL
BOARD OVERLOOKED OR TO WHICH IT HAS GIVEN INSUFFICIENT WEIGHT.  HE MAY
ALSO PRESENT SUCH FURTHER INFORMATION AS HE BELIEVES WILL ASSIST THE
NATIONAL BOARD IN DETERMINING HIS PROPER CLASSIFICATION.  SECS.
1627.4(C) AND (E).  (5) IF THE NATIONAL BOARD CLASSIFIES THE REGISTRANT
IN A CLASS OTHER THAN THE ONE HE REQUESTED IT SHALL RECORD ITS REASONS
THEREFOR IN HIS FILE AND ON REQUEST BY THE REGISTRANT IT SHALL FURNISH
HIM A BRIEF STATEMENT OF THE REASONS FOR ITS DECISION.  SEC.
1627.4(H). 

THUS, UNDER PRESENT PROCEDURE EFFECTIVE IN PART SINCE DECEMBER 10,
1971, AND IN PART SINCE MARCH 11, 1972, COMPLAINTS ABOUT ONE'S
INABILITY TO APPEAR BEFORE APPEAL BOARDS, ABOUT NOT BEING GIVEN REASONS
FOR ADVERSE CLASSIFICATIONS, AND ABOUT INABILITY TO PRESENT ADDITIONAL
MATERIAL AT THE APPELLATE STAGES ARE ALL ALLEVIATED AND, INDEED,
ELIMINATED. 

C. THE CHANGE IN THE GOVERNMENT'S POSITION.  IN THEIR BRIEF FILED
PRIOR TO THE ADOPTION OF THE 1971 ACT, THE RESPONDENTS ACKNOWLEDGED THE
APPEARANCE OF "A RELATIVELY RECENT LINE OF AUTHORITY" EXEMPLIFIED BY
UNITED STATES V. HAUGHTON, 413 F.2D 736 (CA9 1969), TO THE EFFECT THAT
THE FAILURE OF A LOCAL BOARD TO ARTICULATE IN WRITING THE REASON FOR
ITS DENIAL OF A CONSCIENTIOUS OBJECTOR CLASSIFICATION IS A FATAL
PROCEDURAL FLAW WHEN THE REGISTRANT HAS MADE A PRIMA FACIE CASE FOR
SUCH STATUS.  /7/  BRIEF 52-53.  THE RATIONALE IS THAT SOME STATEMENT
OF REASONS IS NECESSARY FOR "MEANINGFUL" REVIEW /8/  OF THE
ADMINISTRATIVE DECISION WHEN THE REGISTRANT'S CLAIM HAS MET THE
STATUTORY CRITERIA OR HAS PLACED HIM PRIMA FACIE WITHIN THE STATUTORY
EXEMPTION, AND HIS VERACITY IS THE PRINCIPAL ISSUE. 

THE RESPONDENTS APPROPRIATELY NOTED, HOWEVER, THAT THESE DECISIONS
WERE ALL SO-CALLED POST-INDUCTION CASES IN THE SENSE THAT THEY WERE
APPEALS FROM CONVICTIONS UNDER SEC. 12(A), 50 U.S.C. APP. 462(A).  THE
RESPONDENTS ACCORDINGLY TOOK THE POSITION THAT THIS LINE OF AUTHORITY,
HOWEVER APPROPRIATE IT MIGHT BE FOR POST-INDUCTION REVIEW, DID NOT
SUPPORT OR JUSTIFY AN EXCEPTION TO THE BAR OF SEC. 10(B)(3) AGAINST PRE
INDUCTION REVIEW OF THE PROCESSING OR CLASSIFYING OF REGISTRANTS. 

IN A MEMORANDUM FILED HERE SINCE THE 1971 ACT IN NO. 70-251, JOSEPH
V. UNITED STATES, CERT. GRANTED, 404 U.S. 820 (1971), THE GOVERNMENT
HAS NOW TAKEN THE POSITION THAT "(ALTHOUGH THIS JUDICIAL RULE (OF
HAUGHTON AND ITS PROGENY) FINDS LITTLE SUPPORT IN EARLY PRECEDENT . . .
WE DO NOT THINK IT APPROPRIATE TO CONTEND THAT IT IS ERRONEOUS."  THE
GOVERNMENT ALSO NOTES THAT THE REQUIREMENT FOR AN ADMINISTRATIVE
STATEMENT OF REASONS "SEEMS FULLY CONSISTENT WITH THE NEW STATUTORY . .
. AND REGULATORY . . . PROVISIONS ON THIS POINT."  MEMO 13, 14. 

WHILE JOSEPH ALSO IS A CONVICTION CASE AND IS NOT ONE ON PRE
INDUCTION REVIEW, ITS OBVIOUS SIGNIFICANCE FOR FEIN IS THAT IF THE
DOCTOR IS EVER AGAIN CALLED FOR INDUCTION, THE RULE OF HAUGHTON WILL
PROVIDE A DEFENSE FOR HIM UNLESS AND UNTIL THE REQUIREMENTS OF THE NEW
STATUTE AND REGULATIONS ARE FULFILLED.  WHETHER THIS NECESSITATES A
COMPLETE REPROCESSING OF FEIN'S CASE IS A MATTER WE LEAVE IN THE FIRST
INSTANCE TO THE ADMINISTRATIVE AUTHORITIES. 

THE JUDGMENT OF THE COURT OF APPEALS IS THEREFORE TO BE AFFIRMED. 
WE EXPRESS NO VIEW UPON THE MERITS OF DR. FEIN'S CONSCIENTIOUS OBJECTOR
CLAIM OTHER THAN TO OBSERVE THE OBVIOUS, NAMELY, THAT HIS CLAIM IS NOT
FRIVOLOUS. 

            AFFIRMED. 

/1/  "THE DECISIONS OF SUCH LOCAL BOARD SHALL BE FINAL, EXCEPT WHERE
AN APPEAL IS AUTHORIZED AND IS TAKEN IN ACCORDANCE WITH SUCH RULES AND
REGULATIONS AS THE PRESIDENT MAY PRESCRIBE.  . . . THE DECISION OF SUCH
APPEAL BOARDS SHALL BE FINAL IN CASES BEFORE THEM ON APPEAL UNLESS
MODIFIED OR CHANGED BY THE PRESIDENT.  THE PRESIDENT, UPON APPEAL OR
UPON HIS OWN MOTION, SHALL HAVE POWER TO DETERMINE ALL CLAIMS OR
QUESTIONS WITH RESPECT TO INCLUSION FOR, OR EXEMPTION OR DEFERMENT FROM
TRAINING AND SERVICE UNDER THIS TITLE . . . AND THE DETERMINATION OF
THE PRESIDENT SHALL BE FINAL.  NO JUDICIAL REVIEW SHALL BE MADE OF THE
CLASSIFICATION OR PROCESSING OF ANY REGISTRANT BY LOCAL BOARDS, APPEAL
BOARDS, OR THE PRESIDENT, EXCEPT AS A DEFENSE TO A CRIMINAL PROSECUTION
. . . AFTER THE REGISTRANT HAS RESPONDED EITHER AFFIRMATIVELY OR
NEGATIVELY TO AN ORDER TO REPORT FOR INDUCTION, OR FOR CIVILIAN WORK IN
THE CASE OF A REGISTRANT DETERMINED TO BE OPPOSED TO PARTICIPATION IN
WAR IN ANY FORM:  PROVIDED, THAT SUCH REVIEW SHALL GO TO THE QUESTION
OF THE JURISDICTION HEREIN RESERVED TO LOCAL BOARDS, APPEAL BOARDS, AND
THE PRESIDENT ONLY WHEN THERE IS NO BASIS IN FACT FOR THE
CLASSIFICATION ASSIGNED TO SUCH REGISTRANT.  . . . "  50 U.S.C. APP.
460(B)(3).     SECTION 10(B)(3) OF THE 1967 ACT WAS AMENDED BY PUB. L.
92-129, SEC. 101(A)(26), 85 STAT. 351, APPROVED SEPT. 28, 1971.  THE
AMENDMENT, HOWEVER, DID NOT CHANGE THAT PORTION OF SEC. 10(B)(3) QUOTED
ABOVE. 

/2/  TR. OF ORAL.  ARG.  22. 

/3/  THE PROVISION IS NOW 32 CFR 1627.1(B).     /4/  S. REP. NO.
209, 90TH CONG., 1ST SESS., 10, CONTAINED THE OBSERVATION THAT A
REGISTRANT MAY ALSO CHALLENGE HIS CLASSIFICATION BY POST-INDUCTION
HABEAS CORPUS.  SEE WITMER V. UNITED STATES, 348 U.S. 375, 377 (1955). 

/5/  TR. OF ORAL ARG. 13, 18. 

/6/  ID., AT 16-18. 

/7/  SEE ALSO UNITED STATES V. EDWARDS, 450 F.2D 49 (CA1 1971);
UNITED STATES V. LENHARD, 437 F.2D 936 (CA2 1970); SCOTT V. COMMANDING
OFFICER, 431 F.2D 1132 (CA3 1970); UNITED STATES V. BROYLES, 423 F.2D
1299 (CA4 1970); UNITED STATES V. STETTER, 445 F.2D 472 (CA5 1971);
UNITED STATES V. WASHINGTON, 392 F.2D 37 (CA6 1968); UNITED STATES V.
LEMMENS, 430 F.2D 619 (CA7 1970); UNITED STATES V. CUMMINS, 425 F.2D
646 (CA8 1970); UNITED STATES V. PACHECO, 433 F.2D 914 (CA10 1970). 

/8/  SEE GONZALES V. UNITED STATES, 348 U.S. 407, 415 (1955). 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

        I 

TODAY THE COURT APPROVES A CONSTRUCTION OF SEC. 10(B)(3) OF THE
MILITARY SELECTIVE SERVICE ACT OF 1967, 50 U.S.C. APP. 460(B)(3), /1/
WHICH RAISES SERIOUS QUESTIONS OF PROCEDURAL DUE PROCESS.  DOCTOR FEIN
WAS CLASSIFIED AS A CONSCIENTIOUS OBJECTOR BY HIS LOCAL BOARD.  THE
STATE DIRECTOR APPEALED, BUT GAVE NO REASON FOR THIS EXTRAORDINARY
ACTION.  /2/  THE APPEAL BOARD THEN RECLASSIFIED DR. FEIN I-A.  IT,
TOO, GAVE NO REASONS. 

WE EXPLAINED THE NATURE OF THE "HEARING" REQUIRED BY THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT IN MORGAN V. UNITED STATES, 304 U.S. 1,
18-19: 

"THE RIGHT TO A HEARING EMBRACES NOT ONLY THE RIGHT TO PRESENT
EVIDENCE BUT ALSO A REASONABLE OPPORTUNITY TO KNOW THE CLAIMS OF THE
OPPOSING PARTY AND TO MEET THEM.  THE RIGHT TO SUBMIT ARGUMENT IMPLIES
THAT OPPORTUNITY; OTHERWISE THE RIGHT MAY BE BUT A BARREN ONE.  THOSE
WHO ARE BROUGHT INTO CONTEST WITH THE GOVERNMENT IN A QUASI-JUDICIAL
PROCEEDING AIMED AT THE CONTROL OF THEIR ACTIVITIES ARE ENTITLED TO BE
FAIRLY ADVISED OF WHAT THE GOVERNMENT PROPOSES AND TO BE HEARD UPON ITS
PROPOSALS BEFORE IT ISSUES ITS FINAL COMMAND." 

SEE MULLANE V. CENTRAL HANOVER TRUST CO., 339 U.S. 306, 313; JENKINS
V. MCKEITHEN, 395 U.S. 411; GREENE V. MCELROY, 360 U.S. 474, 493;
BALTIMORE & OHIO R. CO. V. UNITED STATES, 298 U.S. 349, 368-369. 

MORGAN INVOLVED PROPERTY RIGHTS-- RATES FOR STOCKYARD SERVICES.  BUT
THE DUE PROCESS CLAUSE PROTECTS "LIFE" AND "LIBERTY" AS WELL AS
"PROPERTY."  SEE KWONG HAI CHEW V. COLDING, 344 U.S. 590, 596-598.  IF
A MAN, CONTRARY TO HIS SCRUPLES, IS FORCED TO GO OVERSEAS TO BATTLE, HE
IS DEPRIVED OF HIS "LIBERTY," IF NOT HIS "LIFE." 

WHEN ADMINISTRATIVE ORDERS DEPRIVE A PERSON OF PROPERTY WITHOUT A
FULL AND FAIR OPPORTUNITY TO OBJECT, THIS COURT HAS BEEN MOST RELUCTANT
TO DEFER JUDICIAL REVIEW UNTIL AFTER THOSE ORDERS HAVE TAKEN EFFECT. 
SEE OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126, 152-153; UNITED
STATES V. ILLINOIS CENTRAL R. CO., 291 U.S. 457, 463; LONDONER V. CITY
& COUNTY OF DENVER, 210 U.S. 373, 385.  JUDICIAL SCRUTINY HAS BEEN
PARTICULARLY CLOSE WHERE, AS HERE, REVIEW IS CONDITIONED UPON
SUBMITTING TO THE RISK OF SUBSTANTIAL PENALTIES SHOULD THE ORDER PROVE
TO HAVE BEEN VALIDLY MADE.  SEE OKLAHOMA OPERATING CO. V. LOVE, 252
U.S. 331; EX PARTE YOUNG, 209 U.S. 123.  CF. REISMAN V. CAPLIN, 375
U.S. 440, 446-450.  WE SHOULD REQUIRE NO LESS WHEN PERSONAL LIBERTY IS
AT STAKE.  /3/

HOW CAN WE POSSIBLY AFFIRM THE JUDGMENT BELOW IN LIGHT OF THE
CONSTITUTIONAL DIMENSION OF THE PROBLEM?  AS RESPECTS HIS CLAIM TO
"LIBERTY," IS FEIN TO BE RELEGATED TO THE PROCEDURES OF A CRIMINAL
PROSECUTION WHEN CONGRESS WAS METICULOUS TO PROVIDE FOR ITS RESOLUTION
IN THE ADMINISTRATIVE PROCESS?  NO SUCH DOWNGRADING OF RIGHTS WOULD BE
TOLERATED IN A "PROPERTY" CASE; WHY ARE WE LESS MINDFUL OF THE
REQUIREMENTS OF DUE PROCESS WHEN A MAN'S "LIBERTY" IS AT STAKE? 

        II 

SERVICE SYSTEM CLASSIFICATION DECISIONS TO THE DEFENSE OF A CRIMINAL
PROSECUTION FOR FAILURE TO REPORT FOR INDUCTION.  IT REPRESENTS A
CONGRESSIONAL RESPONSE TO THE CONCERN THAT WIDESPREAD PRE-INDUCTION
REVIEW OF SELECTIVE SERVICE CLASSIFICATION DECISIONS WOULD SERIOUSLY
IMPEDE THE ABILITY OF THE SYSTEM TO PROCESS MANPOWER FOR THE ARMED
FORCES.  SEE REMARKS OF SENATOR RUSSELL, 113 CONG.REC.  15426.  WE HELD
IN OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S. 233, HOWEVER, THAT
THE STATUTE CANNOT BE READ LITERALLY.  "FOR WHILE IT PURPORTS ON ITS
FACE TO SUSPEND THE WRIT OF HABEAS CORPUS AS A VEHICLE FOR REVIEWING A
CRIMINAL CONVICTION UNDER THE ACT, EVERYONE AGREES THAT SUCH WAS NOT
ITS INTENT."  ID., AT 238.  WE HELD THAT IT MUST BE INTERPRETED TO
PERMIT PRE-INDUCTION REVIEW IN THAT EXCEPTIONAL CLASS OF CASES
INVOLVING "A CLEAR DEPARTURE BY THE BOARD FROM ITS STATUTORY MANDATE." 
393 U.S.,AT 238.  BECAUSE OSTEREICH'S LOCAL BOARD HAD EMPLOYED
UNAUTHORIZED AND "LAWLESS" PROCEDURES TO DEPRIVE HIM OF AN EXEMPTION TO
WHICH HE WAS ENTITLED BY STATUTE, WE FURTHER HELD THAT SEC. 10(B)(3)
WAS NO BAR TO THE SUIT.  SEE ALSO BREEN V. SELECTIVE SERVICE BOARD, 396
U.S. 460. 

THE COURTS BELOW, RELYING ON CLARK V. GABRIEL, 393 U.S. 256, HELD
THAT, UNLIKE THE MINISTERIAL EXEMPTION (IV-D) AT ISSUE IN OESTEREICH
AND THE STUDENT DEFERMENT (II-S) IN BREEN, THE CONSCIENTIOUS OBJECTOR
EXEMPTION (I-O) IS COMMITTED TO THE DISCRETION OF THE BOARD, AND
CONTEMPLATES THE COMPLEX EVIDENTIARY AND FACTUAL DETERMINATIONS WHICH
SEC. 10(B)(3) PRIMARILY INTENDED TO INSULATE FROM PRE-INDUCTION
REVIEW.  WERE FEIN COMPLAINING THAT HIS APPEAL BOARD HAD NO BASIS IN
FACT TO DISCONTINUE HIS CONSCIENTIOUS OBJECTOR EXEMPTION, THIS
DISTINCTION WOULD BE SIGNIFICANT. 

THE FACT THAT FEIN WAS CLASSIFIED I-O BY HIS LOCAL BOARD (RATHER
THAN IV-D OR II-S) BEFORE BEING STRIPPED OF HIS EXEMPTION DOES NOT,
HOWEVER, DISTINGUISH, HIS CASE FROM OESTEREICH.  INDEED, IT IS CLARK V.
GABRIEL, SUPRA, ON WHICH THE MAJORITY AND LOWER COURT PLACED SUCH HEAVY
RELIANCE FOR THE OPPOSITE PROPOSITION, THAT DEMONSTRATES THE
APPLICABILITY OF OESTEREICH TO THE PRESENT SITUATION. 

GABRIEL'S CONSCIENTIOUS OBJECTOR CLAIM HAD BEEN REJECTED BY HIS
LOCAL BOARD, AFTER "EVALUATING EVIDENCE AND . . . DETERMINING WHETHER A
CLAIMED EXEMPTION IS DESERVED."  OESTEREICH, SUPRA, AT 238.  HIS BASIC
ARGUMENT WAS THAT THERE WAS NO BASIS IN FACT TO DENY HIM HIS
EXEMPTION.  AS THE COURT SAID, HOWEVER, THERE WAS 

"NO DOUBT OF THE BOARD'S STATUTORY AUTHORITY TO TAKE ACTION WHICH
APPELLEE CHALLENGES, AND THAT ACTION INESCAPABLY INVOLVES A
DETERMINATION OF FACT AND AN EXERCISE OF JUDGMENT.  BY STATUTE,
CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR IS EXPRESSLY CONDITIONED ON
THE REGISTRANT'S CLAIM BEING 'SUSTAINED BY THE LOCAL BOARD.'"  393
U.S.,AT 258. 

BUT FEIN'S CLAIM, UNLIKE THAT OF GABRIEL, HAS BEEN "SUSTAINED BY THE
LOCAL BOARD."  THUS, BY STATUTE, IT IS MANDATORY THAT THE EXEMPTION BE
AWARDED HIM-- SUBJECT, OF COURSE, TO SUBSEQUENT ACTION IN ACCORDANCE
WITH LAWFUL, AUTHORIZED PROCEDURES.  BUT THIS IS THE SITUATION WHICH
OBTAINED IN OESTEREICH.  THE EXEMPTION AT ISSUE, IN THAT CASE COULD
ALSO HAVE BEEN REMOVED IN ACCORD WITH LAWFUL PROCEDURES.  THE CRUCIAL
SIMILARITY IS THAT BOTH OESTEREICH AND FEIN HAVE MET THE PRELIMINARY
HURDLE OF DEMONSTRATING TO THE LOCAL BOARD THEIR STATUTORY FITNESS FOR
A GIVEN EXEMPTION. 

THE NATURE OF DR. FEIN'S CLAIM IS THAT THE SELECTIVE SERVICE SYSTEM
HAS BEEN "BLATANTLY LAWLESS," NOT IN TAKING AWAY HIS EXEMPTION PER SE,
BUT IN DOING SO IN A MANNER WHICH VIOLATES THE MANDATE OF SEC. 1(C) OF
THE ACT, 50 U.S.C. APP. 450(C), THAT THE SYSTEM BE ADMINISTERED IN A
WAY "WHICH IS FAIR AND JUST . . . . " 

IT SHOULD BY NOW BE UNDISPUTED THAT AN ESSENTIAL OF A "FAIR AND
JUST" PROCEDURE IS THE REGISTRANT'S RIGHT TO BE HEARD BY THE AGENCY IN
THE SYSTEM THAT DEPRIVES HIM OF HIS LIBERTY.  /4/  TO BE MEANINGFUL,
THAT HEARING MUST INCLUDE THE RIGHT TO APPEAR, AND TO BE APPRISED OF
AND GIVEN A CHANCE TO REPLY TO ADVERSE INFORMATION CONTAINED IN ONE'S
FILE.  DR. FEIN WAS AFFORDED NONE OF THESE RIGHTS.  THE REGULATIONS DID
NOT PERMIT A PERSONAL APPEARANCE BEFORE THE APPEAL BOARD.  DR. FEIN WAS
NOT INFORMED OF THE REASONS FOR THE APPEAL.  HE HAD NO RIGHT TO SUBMIT
A STATEMENT OF HIS OWN, AS THE STATE DIRECTOR, THE PERSON APPEALING,
HAD NOT SUBMITTED A STATEMENT.  32 CFR 1626.12.  DR. FEIN NEVER EVEN
RECEIVED A STATEMENT OF REASONS FOR THE APPEAL BOARD'S
RECLASSIFICATION, A DEFALCATION WHICH THE SOLICITOR GENERAL HAS
CONCEDED TO BE ERROR IN A SIMILAR CONTEXT.  MEMORANDUM FOR THE UNITED
STATES, JOSEPH V. UNITED STATES, NO. 70-251.  SEE ALSO MEMORANDUM FOR
THE UNITED STATES, LENHARD V. UNITED STATES, NO. 71-5840. 

LIKE OESTEREICH'S, THEREFORE, FEIN'S COMPLAINT IS "UNRELATED TO THE
MERITS OR GRANTING OR CONTINUING THAT EXEMPTION," 393 U.S.,AT 237.  IT
IS INSTEAD A CHALLENGE TO THE BASIC FAIRNESS OF THE ADMINISTRATIVE
PROCESS ITSELF.  AND, WHILE FEIN HIMSELF CHARACTERIZES HIS ATTACK AS A
"CONSTITUTIONAL"  ONE, THE PROCEDURAL GUARANTEES WHICH HE SAYS WERE
DENIED HIM ARE IMPLICIT IN THE ACT ITSELF.  IT IS AS UNLAWFUL TO EMPLOY
THE REGULATIONS GOVERNING THE APPEAL PROCEDURE TO DENY FUNDAMENTAL
PROCEDURAL RIGHTS IMPLICIT IN THE STATUTORY SCHEME AS IT WAS IN
OESTEREICH AND BREEN TO USE THE REGULATIONS GOVERNING DELINQUENCY TO
WORK A SIMILAR DEPRIVATION. 

THE LITERALNESS WITH WHICH THE COURT TREATS DR. FEIN'S CLAIM "DOES
VIOLENCE TO THE CLEAR MANDATE OF" SEC. 1(C) OF THE ACT, AND
MISCONSTRUES THE THRUST OF OESTEREICH, GABRIEL, AND BREEN.  FEIN'S
CLAIM PRESENTS A CLEAR CASE FOR PRE-INDUCTION REVIEW.  AS IN
OESTEREICH, WE HAVE HERE A CASE WHERE THE SELECTIVE SERVICE SYSTEM IS
ITSELF "BASICALLY LAWLESS."  ON THE ADMITTEDLY EXTRAORDINARY FACTS OF
THIS CASE, FEIN HAS BEEN EFFECTIVELY DEPRIVED OF THE ENTIRE PANOPLY OF
APPELLATE REMEDIES GUARANTEED TO HIM BY THE ACT, AND PUT IN A POSITION
WHEREIN MEANINGFUL JUDICIAL REVIEW OF THE UNDERLYING CLASSIFICATION
DECISION HAS BECOME A VIRTUAL IMPOSSIBILITY. 

/1/  SECTION 10(B)(3) READS IN PERTINENT PART AS FOLLOWS: 

"NO JUDICIAL REVIEW SHALL BE MADE OF THE CLASSIFICATION OR
PROCESSING OF ANY REGISTRANT BY LOCAL BOARDS, APPEAL BOARDS, OR THE
PRESIDENT, EXCEPT AS A DEFENSE TO A CRIMINAL PROSECUTION INSTITUTED
UNDER SECTION 12 OF THIS TITLE, AFTER THE REGISTRANT HAS RESPONDED
EITHER AFFIRMATIVELY OR NEGATIVELY TO AN ORDER TO REPORT FOR INDUCTION,
OR FOR CIVILIAN WORK IN THE CASE OF A REGISTRANT DETERMINED TO BE
OPPOSED TO PARTICIPATION IN WAR IN ANY FORM:  PROVIDED, THAT SUCH
REVIEW SHALL GO TO THE QUESTION OF THE JURISDICTION HEREIN RESERVED TO
LOCAL BOARDS, APPEAL BOARDS AND THE PRESIDENT ONLY WHEN THERE IS NO
BASIS IN FACT FOR THE CLASSIFICATION ASSIGNED TO SUCH REGISTRANT." 

/2/  EXCEPT THE SOMEWHAT CRYPTIC STATEMENT THAT "(IT IS OUR OPINION
THAT THE REGISTRANT WOULD NOT QUALIFY FOR A I-O CLASSIFICATION AS A
CONSCIENTIOUS OBJECTOR." 

/3/  SOME COURTS, HOWEVER, HAVE BEEN MORE ZEALOUS IN THEIR
EXALTATION OF PROPERTY RIGHTS THAN THEY HAVE OF CONSTITUTIONALLY
SAFEGUARDED INDIVIDUAL LIBERTIES.  SEE, E.G., POOLE V. STATE, 244 ARK.
1222, 1225, 428 S.W.2D 628, 630: 

"THE RIGHT OF AN INDIVIDUAL TO ACQUIRE AND POSSESS AND PROTECT
PROPERTY IS INHERENT AND INALIENABLE AND DECLARED HIGHER THAN ANY
CONSTITUTIONAL SANCTION IN ARKANSAS . . . . " 

/4/  SEE, E.G., CLAY V. UNITED STATES, 403 U.S. 698; MULLOY V.
UNITED STATES, 398 U.S. 410, 416; GONZALES V. UNITED STATES, 348 U.S.
407, 417; SIMMONS V. UNITED STATES, 348 U.S. 397, 405.  SEE ALSO GREENE
V. MCELROY, 360 U.S. 474, 493; MORGAN V. UNITED STATES, 304 U.S. 1, 18
19; BALTIMORE & OHIO R. CO. V. UNITED STATES, 298 U.S. 349, 368-369;
UNITED STATES V THOMPSON, 431 F.2D 1265, 1271; UNITED STATES V.
CABBAGE, 430 F.2D 1037, 1039-1041; UNITED STATES V. CUMMINS, 425 F.2D
646; UNITED STATES V. OWEN, 415 F.2D 383, 388-389; WIENER V. LOCAL BD.
NO. 4, 302 F.SUPP.  266, 270. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE STEWART JOINS,
DISSENTING. 

I DISSENT.  TODAY'S HOLDING REINTERPRETS OESTEREICH V. SELECTIVE
SERIVCE BOARD, 393 U.S. 233 (1968), TO ESTABLISH A PRINCIPLE THAT
SERVES NO SENSIBLE PURPOSE.  IF OESTEREICH IS TO BE PRESERVED, IT MUST
BE ROOTED IN A PRINCIPLE THAT PERMITS PRE-INDUCTION REVIEW IN THIS CASE
AS WELL. 

AS THE MAJORITY CORRECTLY OBSERVES, OUR DECISION IN OESTEREICH
FORECLOSED ANY FURTHER ARGUMENT THAT SEC. 10(B)(3) CONSTITUTES AN
ABSOLUTE BAR TO PRE-INDUCTION JUDICIAL REVIEW.  "NO ONE, WE BELIEVE,
SUGGESTS THAT SEC. 10(B)(3) CAN SUSTAIN A LITERAL READING."  ID., AT
238.  HAVING THUS ADOPTED IN OESTEREICH, AND REAFFIRMED IN BREEN V.
SELECTIVE SERVICE BOARD, 396 U.S. 460 (1970), AN INTERPRETATION OF THE
ACT THAT PERMITS PRE-INDUCTION REVIEW IN SOME CASES, WE NEED DECIDE
TODAY ONLY WHETHER DR. FEIN RAISES THAT SORT OF EXCEPTIONAL CLAIM
APPROPRIATE FOR PRE-INDUCTION REVIEW. 

THE MAJORITY APPARENTLY HOLDS THAT PRE-INDUCTION REVIEW IS AVAILABLE
ONLY WHERE A REGISTRANT'S "CLAIMED STATUS IS . . . FACTUALLY CONCEDED
AND THUS (IS) ASSURED BY THE STATUTE UPON OBJECTIVE CRITERIA."  ANTE,
AT 376.  I CONFESS THAT I DO NOT ALTOGETHER UNDERSTAND THESE KEY WORDS
IN THE MAJORITY'S TEST.  BUT I FATHOM ENOUGH TO CONCLUDE THAT THE TEST
MAKES LITTLE SENSE.  ALTHOUGH PETITIONER CHALLENGES ONLY THE PROCEDURES
USED BY THE SELECTIVE SERVICE SYSTEM, AND DOES NOT ASK THIS COURT TO
DECIDE THE MERITS OF HIS CONSCIENTIOUS OBJECTOR (CO) CLAIM, HE LOSES
HIS LAWSUIT BECAUSE HIS ENTITLEMENT TO A CO CLASSIFICATION IS NOT
"FACTUALLY CONCEDED" OR "OBJECTIVELY CERTAIN."  BUT THE MERITS OF
PETITIONER'S CO CLAIM ARE NOT AT ISSUE IN THIS PRE-INDUCTION
LITIGATION.  I CAN THINK OF NO REASONS FOR AN APPROACH THAT IGNORES THE
ACTUAL PRE-INDUCTION CLAIM, AND THAT PERMITS PRE-INDUCTION REVIEW ONLY
WHERE "OBJECTIVE CERTAINTY OF (THE REGISTRANT'S) STATUS" EXISTS.  IBID.
OESTEREICH SHOULD NOT BE RECAST THIS NARROWLY.     THE MAJORITY SAYS
THAT THERE CAN BE PRE-INDUCTION REVIEW ONLY WHEN THE REGISTRANT'S
STATUS IS ASSURED "UPON OBJECTIVE CRITERIA."  THIS, BY ITSELF, MIGHT
ONLY MEAN THAT WHERE STATUS TURNS ON UNCONCEDED FACTUAL CLAIMS-- AS
OPPOSED TO MORE "OBJECTIVELY" DETERMINED LEGAL CLAIMS-- PRE-INDUCTION
REVIEW IS BARRED.  BUT THE HEART OF THE MAJORITY'S TEST IS THAT PRE
INDUCTION REVIEW IS PERMITTED ONLY WHEN THERE IS "OBJECTIVE CERTAINTY"
OF STATUS.  OBVIOUSLY, THIS APPROACH IS NOT IMMEDIATELY SUGGESTED BY
THE WORDS OF SEC. 10(B)(3), WHICH PROSCRIBES PRE-INDUCTION REVIEW "OF
THE CLASSIFICATION OR PROCESSING OF ANY REGISTRANT."  NOR DOES IT AVOID
THE "UNNECESSARY HARSHNESS" THAT THE MAJORITY CONCEDES OESTEREICH
SOUGHT TO PREVENT.  WHERE THE REGISTRANT'S STATUS IS "OBJECTIVELY
CERTAIN," OR WHERE THE GOVERNMENT CONCEDES THAT IT WILL NOT PROSECUTE
THE REGISTRANT IF HE REFUSES INDUCTION AND WILL CONFESS ERROR IF HE
SUBMITS TO INDUCTION AND BRINGS A HABEAS CORPUS ACTION, THE REGISTRANT
IS "LEAST JEOPARDIZED BY THE PROCEDURAL LIMITATIONS OF SEC. 10(B)(3)." 
OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S.,AT 251 (STEWART, J.,
DISSENTING).  WHERE THERE IS NO PRE-INDUCTION REVIEW, THE HARSHER
BURDEN FALLS ON THE REGISTRANT WHOSE RIGHTS AND ULTIMATE STATUS ARE NOT
FREE FROM DOUBT OR CONCEDED.  HE IS THE ONE FACED WITH THE ENORMOUS
UNCERTAINTIES OF A CRIMINAL PROSECUTION FOR REFUSING INDUCTION; AND
SHOULD HE SUBMIT TO WHAT HE THINKS IS AN ILLEGAL INDUCTION,
ANTICIPATING RELIEF THROUGH HABEAS CORPUS, HIS UNCERTAIN PROSPECTS MAKE
IT UNLIKELY THAT HE COULD AVOID THE MASSIVE DISLOCATIONS OF INDUCTION
ITSELF (E.G., GIVING UP A JOB, LEAVING SCHOOL).  IN SHORT, THE
MAJORITY'S THEORY OF PRE-INDUCTION REVIEW HELPS THE WRONG PEOPLE.  /1/ 

A VIABLE APPROACH TO THE PROBLEM OF PRE-INDUCTION REVIEW IS TO BE
FOUND BY COMPARING OESTEREICH WITH THE OTHER SEC. 10(B)(3) CASE DECIDED
ON THE SAME DAY, CLARK V. GABRIEL, 393 U.S. 256 (1968).  IN CLARK V.
GABRIEL, WE INTERPRETED SEC. 10(B)(3) TO BAR PRE-INDUCTION REVIEW WHERE
THE CHALLENGED ACTION "INESCAPABLY INVOLVES A DETERMINATION OF FACT AND
AN EXERCISE OF JUDGMENT"; THUS, WE REFUSED TO ALLOW PRE-INDUCTION
REVIEW WHERE THE REGISTRANT CLAIMED, ON THE FACTS, THAT HE WAS ENTITLED
TO A CO CLASSIFICATION.  HOWEVER, WE PERMITTED PRE-INDUCTION REVIEW IN
OESTEREICH, SUPRA, WHERE THE LOCAL BOARD'S ACTION, TAKEN PURSUANT TO A
PURPORTEDLY VALID DISCIPLINARY REGULATION, WAS IN CLAIMED CONFLICT WITH
RIGHTS TO EXEMPTION ASSURED BY STATUTE.  CF. BREEN V. SELECTIVE SERVICE
BOARD, SUPRA.  /2/  FOR REASONS THAT WILL BECOME CLEARER BELOW, THE
CRUCIAL DIFFERENCE FOR ME BETWEEN THE CASES IS THAT IN OESTEREICH (AND
BREEN) THE REGISTRANT CHALLENGED A PURPORTEDLY VALID SELECTIVE SERVICE
RULE OF GENERAL APPLICATION, THE VALIDITY OF WHICH THE ADMINISTRATIVE
PROCESS COULD NOT COMPETENTLY ADJUDICATE BEFORE INDUCTION. 

AT ISSUE IN DR. FEIN'S CASE ARE SELECTIVE SERVICE APPEAL PROCEDURES,
GENERAL RULES THAT ARE SAID TO BE INVALID UNDER THE CONSTITUTION.  AT
STAKE IS NOT A BOARD DETERMINATION "PROCESSING OR CLASSIFYING" AN
INDIVIDUAL REGISTRANT, /3/  BUT GENERAL PROCEDURES PRESCRIBING THE WAY
SUCH DETERMINATIONS ARE MADE.  THE SITUATION HERE IS SUBSTANTIALLY
SIMILAR TO OESTEREICH, AND ALTOGETHER DIFFERENT FROM THE ONE IN CLARK
V. GABRIEL.  IN OESTEREICH, AS FORMER CHEIF JUDGE LUMBARD NOTED IN
DISSSENT BELOW, 

"(THE REGISTRANT CHALLENGED) A PROCEDURE UNAUTHORIZED BY STATUTE,
WHILE CLAIMING THAT THE REGULATION DEPRIVED) HIM OF A RIGHT BASED ON
HIGHER AUTHORITY.  THE DIFFERENCE, WHICH I DO NOT DEEM SIGNIFICANT, IS
THAT IN OESTEREICH THE CONFLICT POSED WAS BETWEEN A (SELECTIVE SERVICE)
REGULATION-- THE DELINQUENCY PROVISION-- AND A STATUTORY COMMAND, THE
MINISTERIAL EXEMPTION."  430 F.2D 376, 382 (1970).  HERE, SELECTIVE
SERVICE APPELLATE PROCEDURES, IMPLEMENTED UNDER SELECTIVE SERVICE
REGULATIONS 32 CFR 1626 ET SEQ., ARGUABLY CONFLICT WITH THE
CONSTITUTIONAL REQUIREMENTS OF THE DUE PROCESS CLAUSE, "SURELY AN A
FORTIORI CASE FOR PREINDUCTION REVIEW."  IBID.  IN OESTEREICH, BREEN,
AND THIS CASE, THE SELECTIVE SERVICE SYSTEM RELIED ON RULES,
PURPORTEDLY VALID, THAT ARE CHALLENGED AS ILLEGAL IN THEIR GENERAL
APPLICATION. 

IN CLARK V. GABRIEL, THE REGISTRANT CHALLENGED THE FACTUAL AND
JUDGMENTAL DETERMINATION THAT HE WAS NOT ENTITLED TO A CONSCIENTIOUS
OBJECTOR CLASSIFICATION.  BUT DR. FEIN DOES NOT CHALLENGE THAT
INDIVIDUALIZED JUDGMENT IN HIS PRE-INDUCTION SUIT.  HERE, THE
REGISTRANT'S LOCAL BOARD FOUND HIM ENTITLED TO A CO CLASSIFICATION, AND
THEN THIS PRESUMPTIVELY CORRECT CLASSIFICATION WAS TAKEN AWAY PURSUANT
TO ALLEGEDLY LAWLESS AND UNCONSTITUTIONAL PROCEDURES.  /4/  THE FACIAL
VALIDITY OF THESE PROCEDURES IS THE ONLY ISSUE HERE.  IN NEITHER
OESTEREICH, BREEN, NOR THIS CASE WOULD PRE-INDUCTION INQUIRY LOOK TO
DISCRETIONARY DETERMINATIONS OF THE SYSTEM, OR TO FACTUAL JUDGMENTS OF
THE LOCAL OR APPEAL BOARD.  (NOR IS THERE ANY DISPUTE IN OUR CASE THAT
THE CHALLENGED PROCEDURES WERE ACTUALLY FOLLOWED HERE.) 

IN MY VIEW, PRE-INDUCTION JUDICIAL REVIEW SHOULD BE PERMITTED WHERE
THE REGISTRANT CLAIMS THAT GENERALLY APPLIED RULES ADMINISTERED BY
SELECTIVE SERVICE ARE INVALID, AND WHERE THE ADMINISTRATIVE PROCESS IS
NOT COMPETENT TO DECIDE THE REGISTRANT'S CLAIM.  UNLIKE THE APPROACH OF
THE MAJORITY, THIS APPROACH WOULD BENEFIT AN APPROPRIATE GROUP OF
REGISTRANTS, WITHOUT DOING VIOLENCE TO CONGRESS' APPARENT PURPOSES IN
PASSING SEC. 10(B)(3).  WHILE THE MAJORITY OPINION IN OESTEREICH WAS
DIRECTED NARROWLY TO THE FACTS THERE PRESENTED, THE DECISION MAY FAIRLY
BE SAID TO RECOGNIZE THAT SEC. 10(B)(3) WAS INTENDED TO BE AN INTEGRAL
PART OF THE COMPLEX MACHINERY DESIGNED BY CONGRESS TO RAISE AN ARMY
FAIRLY AND EXPEDITIOUSLY.  IN MY VIEW, SEC. 10(B)(3) REFLECTED TWO
RELATED ASSUMPTIONS OF CONGRESS.  FIRST, CONGRESS ASSUMED PROCEDURAL
REGULARITY IN THE ADMINISTRATIVE SYSTEM.  WHERE THE GENERAL
ADMINISTRATIVE PROCEDURES ARE VALID-- WHERE PROCEDURAL REGULARITY IS
ACKNOWLEDGED-- INDIVIDUAL "CLASSIFICATION OR PROCESSING" DETERMINATIONS
MAY BE PRESUMED CORRECT, AND PRE-INDUCTION REVIEW WOULD BE AN
UNWARRANTED INTERFERENCE WITH AN ORDERLY INDUCTION SYSTEM.  MORE
GENERALLY, AS I VIEW SEC. 10(B)(3), CONGRESS WANTED TO MAKE CLEAR THAT
SINCE IT HAD PROVIDED AN ELABORATE ADMINISTRATIVE PROCEDURE IN WHICH
REGISTRANTS HAVE A FULL OPPORTUNITY TO RAISE THEIR CLAIMS, THEY SHOULD
NOT BE ALLOWED TO HAVE DUPLICATIVE JUDICIAL REVIEW OF THE
ADMINISTRATIVE DETERMINATIONS BEFORE INDUCTION.  THESE PREMISES
JUSTIFYING A BAN ON PRE-INDUCTION REVIEW MAY BE UNDERCUT IN PARTICULAR
CASES, AND IN SUCH CASES PRE-INDUCTION REVIEW SHOULD BE PERMITTED. 
WHERE, AS IN DR. FEIN'S CASE, THE UNDERLYING PROCEDURES OF THE
CLASSIFICATION SYSTEM ARE THEMSELVES CHALLENGED-- WHERE CONGRESS'
PRESUMPTION OF PROCEDURAL REGULARITY IS CALLED INTO QUESTION-- PRE
INDUCTION REVIEW SHOULD BE PERMITTED.  AND WHERE, AS HERE, A REGISTRANT
MAKES A CLAIM NOT SUITED FOR ADMINISTRATIVE DETERMINATION EVEN IN THE
FIRST INSTANCE, PRE-INDUCTION JUDICIAL REVIEW WOULD NOT DUPLICATE THE
ADMINISTRATIVE PROCESS AND THEREFORE SHOULD BE PERMITTED.  OF COURSE,
WHERE THE CORRECTNESS OF A PARTICULAR CLASSIFICATION IS AT ISSUE, THE
ADMINISTRATIVE PROCESS USUALLY HAS AN OPPORTUNITY TO DECIDE WHETHER THE
CLAIMED ERROR EXISTS, AND PRE-INDUCTION REVIEW WOULD BE INAPPROPRIATE. 
BUT A SELECTIVE SERVICE BOARD OF LAYMEN DOES NOT HAVE THE COMPETENCE TO
DECIDE DR. FEIN'S CLAIM THAT GENERALLY APPLIED SELECTIVE SERVICE
PROCEDURES ARE UNCONSTITUTIONAL.  WITHOUT PRE-INDUCTION JUDICIAL
REVIEW, DR. FEIN'S LIBERTY IS TAKEN WITHOUT ANY COMPETENT BODY DECIDING
THE CONSTITUTIONAL QUESTION HE RAISES.  CF. OESTEREICH V. SELECTIVE
SERVICE BOARD, SUPRA, AT 243 (HARLAN, J., CONCURRING IN RESULT). 
SPIRIT, IF NOT THE LETTER, OF SO MANY OF OUR CONSTITUTIONAL DECISIONS. 

I WOULD PERMIT PRE-INDUCTION REVIEW IN THIS CASE, AND WOULD REMAND
FOR CONSIDERATION OF THE MERITS OF PETITIONER'S CLAIMS. 

/1/  THE CASES IN WHICH THE MAJORITY WOULD PERMIT PRE-INDUCTION
REVIEW ARE NOT THOSE IN WHICH SELECTIVE SERVICE MANPOWER GATHERING
PROCESSES ARE "INTERRUPTED" TO A DISTINCTIVELY MINIMAL EXTENT. 
"LITIGIOUS INTERRUPTION" COMES FROM THE ORDINARY PROCESSES OF ANY
LITIGATION, THE DELAYS BUILT IN THE FEDERAL RULES.  THESE INTERRUPTIVE
TIME DELAYS ARE NOT SIGNIFICANTLY SHORTENED IN LAWSUITS WHERE THE
GOVERNMENT MAKES CRUCIAL CONCESSIONS AT THE APPEAL STAGE (AS IN
OESTEREICH), OR WHERE THE PERTINENT DETERMINATION IS WHETHER A
REGISTRANT'S STATUS IS "OBJECTIVELY CERTAIN."  A DAY OR TWO OF COURT
TIME MAY BE SAVED, BUT GIVEN THE DURATION OF THE ENTIRE LITIGATION,
THIS IS INSIGNIFICANT. 

/2/  THE MAJORITY RELIES ON BOYD V. CLARK, 287 F.SUPP.  561 (SDNY
1968), WHICH WE SUMMARILY AFFIRMED, 393 U.S. 316 (1969), WITH A SINGLE
CITATION OF CLARK V. GABRIEL, 393 U.S. 256 (1968).  ALTHOUGH THE
DISTRICT COURT DISMISSED THE LAWSUIT ON TWO GROUNDS-- THAT PRE
INDUCTION REVIEW WAS IMPROPER AND THAT THE JURISDICTIONAL AMOUNT
REQUIREMENT HAD NOT BEEN MET-- WE AFFIRMED ON THE SINGLE GROUND THAT
PRE-INDUCTION REVIEW WAS IMPROPER, AS OUR SIMPLE REFERENCE TO CLARK V.
GABRIEL WAS DESIGNED TO INDICATE.  THAT REFERENCE SHOULD NOT BE
OVERBURDENED WITH SIGNIFICANCE.  SINCE THOSE REGISTRANTS, WHO HAD NEVER
RECEIVED AN INDUCTION NOTICE, HAD NOT REACHED A POSITION OF FINALITY
WITHIN THE SYSTEM, PRE-INDUCTION REVIEW WAS INAPPROPRIATE. 

/3/  SECTION 10(B)(3) PROSCRIBES PRE-INDUCTION REVIEW "OF THE
CLASSIFICATION OR PROCESSING OF ANY REGISTRANT . . . . " 

/4/  THE MAJORITY NOTES: 

"IT IS TRUE THAT IN OESTEREICH AND BREEN A RESULT FAVORABLE TO THE
REGISTRANT WAS ALSO REVERSED, BUT THERE THE CHANGE CAME ABOUT ONLY BY
THE BOARD'S CONSIDERATION OF EXTRANEOUS CIRCUMSTANCES APART FROM THE
MERITS OF THE UNDERLYING CLAIMS."  ANTE, AT 377. 

THIS DISTINCTION IS INDEED IRONIC.  ONE OF FEIN'S BASIC CLAIMS IN
THIS LAWSUIT IS THAT ABSENT A STATEMENT OF REASONS BY THE APPEAL BOARD
THAT TOOK AWAY HIS CO CLASSIFICATION, THERE IS NO WAY OF KNOWING
WHETHER THAT ACTION WAS BASED ON EXTRANEOUS CIRCUMSTANCES OR WHETHER IT
WAS LAWFUL. 

MICHAEL B. STANDARD ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS DAVID ROSENBERG. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR RESPONDENTS.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL GRAY, MORTON
HOLLANDER, AND ROBERT E. KOPP. 

MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION
AS AMICUS CURIAE URGING REVERSAL. 
..END :



















COMMISSIONER V. FIRST SECURITY BANK OF UTAH, 405 U.S. 394 


       COMMISSIONER OF INTERNAL REVENUE V. FIRST SECURITY BANK OF

           UTAH, N.A., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

        NO. 70-305.  ARGUED JANUARY 10, 1972-- DECIDED MARCH 21,

           1972 


RESPONDENT BANKS WERE SUBSIDIARIES OF A HOLDING COMPANY THAT ALSO
CONTROLLED A MANAGEMENT COMPANY, AN INSURANCE AGENCY, AND, FROM 1954,
AN INSURANCE COMPANY (SECURITY LIFE).  IN 1948 THE BANKS BEGAN TO OFFER
TO ARRANGE CREDIT LIFE INSURANCE FOR THEIR BORROWERS, PLACING THE
INSURANCE WITH AN INDEPENDENT INSURANCE CARRIER.  NATIONAL BANKING LAWS
WERE DEEMED TO PROHIBIT THE BANKS FROM RECEIVING SALES COMMISSIONS,
WHICH WERE PAID BY THE CARRIER TO THE INSURANCE AGENCY SUBSIDIARY.  THE
COMMISSIONERS WERE REPORTED AS TAXABLE INCOME FOR THE 1948-1954 PERIOD
BY THE MANAGEMENT COMPANY.  AFTER 1954, WHEN SECURITY LIFE WAS
ORGANIZED, THE CREDIT LIFE INSURANCE ON THE BANKS' CUSTOMERS WAS PLACED
WITH AN INDEPENDENT CARRIER, WHICH REINSURED THE RISKS WITH SECURITY
LIFE, THE LATTER RETAINING 85% OF THE PREMIUMS.  NO SALES COMMISSIONERS
WERE PAID.  SECURITY LIFE REPORTED ALL THE REINSURANCE PREMIUMS ON ITS
INCOME TAX RETURNS FOR THE PERIOD 1955 TO 1959, AT THE PREFERENTIAL TAX
RATE FOR INSURANCE COMPANIES.  PETITIONER, PURSUANT TO 26 U.S.C. 482,
GRANTING HIM POWER TO ALLOCATE GROSS INCOME AMONG CONTROLLED
CORPORATIONS IN ORDER TO REFLECT THE ACTUAL INCOMES OF THE
CORPORATIONS, DETERMINED THAT 40% OF SECURITY LIFE'S PREMIUM INCOME WAS
ALLOCABLE TO THE BANKS AS COMMISSION INCOME EARNED FOR ORIGINATING AND
PROCESSING THE CREDIT LIFE INSURANCE.  THE TAX COURT AFFIRMED
PETITIONER'S ACTION, BUT THE COURT OF APPEALS REVERSED.  HELD:  SINCE
THE BANKS DID NOT RECEIVE AND WERE PROHIBITED BY LAW FROM RECEIVING
SALES COMMISSIONS, NO PART OF THE REINSURANCE PREMIUM INCOME COULD BE
ATTRIBUTED TO THEM, AND PETITIONER'S EXERCISE OF THE SEC. 482 AUTHORITY
WAS NOT WARRANTED.  PP. 403-407. 

436 F.2D 1192, AFFIRMED. 

POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, BRENNAN, STEWART, AND REHNQUIST, JJ., JOINED. 
MARSHAL, J., FILED A DISSENTING OPINION, POST, P. 407.  BLACKMUN, J.,
FILED A DISSENTING OPINION, IN WHICH WHITE, J., JOINED, POST, P. 418. 

MR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS FOR REVIEW A DETERMINATION BY THE COMMISSIONER OF
INTERNAL REVENUE (COMMISSIONER), PURSUANT TO SEC. 482 OF THE INTERNAL
REVENUE ACT, /1/  THAT THE INCOME OF TAXPAYERS WITHIN A CONTROLLED
GROUP SHOULD BE REALLOCATED TO REFLECT THE TRUE TAXABLE INCOME OF
EACH.  DEFICIENCIES WERE ASSESSED AGAINST RESPONDENTS.  THE TAX COURT
AFFIRMED THE COMMISSIONER'S ACTION, AND RESPONDENTS APPEALED TO THE
COURT OF APPEALS FOR THE TENTH CIRCUIT.  THAT COURT REVERSED THE
DECISION OF THE TAX COURT, 436 F.2D 1192 (1971), AND WE GRANTED THE
COMMISSIONER'S PETITION FOR CERTIORARI TO RESOLVE A CONFLICT BETWEEN
THE DECISION BELOW AND THAT IN LOCAL FINANCE CORP. V. COMMISSIONER, 407
F.2D 629 (CA7), CERT. DENIED, 396 U.S. 956 (1969).  WE NOW AFFIRM THE
DECISION OF THE COURT OF APPEALS. 

RESPONDENTS, FIRST SECURITY BANK OF UTAH, N.A., AND FIRST SECURITY
BANK OF IDAHO, N.A. (THE BANKS), ARE NATIONAL BANKS THAT, DURING THE
TAX YEARS, WERE WHOLLY OWNED SUBSIDIARIES OF FIRST SECURITY CORP.
(HOLDING COMPANY).  OTHER, NON-BANK, SUBSIDIARIES OF THE HOLDING
COMPANY, RELEVANT TO THIS CASE, WERE FIRST SECURITY CO. (MANAGEMENT
COMPANY), ED. D. SMITH & SONS, AN INSURANCE AGENCY (SMITH), AND-- FROM
JUNE 1954-- FIRST SECURITY LIFE INSURANCE COMPANY OF TEXAS (SECURITY
LIFE).  BEGINNING IN 1948, THE BANKS OFFERED TO ARRANGE FOR BORROWERS
CREDIT LIFE, HEALTH, AND ACCIDENT INSURANCE (CREDIT LIFE INSURANCE). 
THE TAX COURT FOUND THAT THEY DID THIS "FOR SEVERAL REASONS," INCLUDING
(1) OFFERING A SERVICE INCREASINGLY SUPPLIED BY COMPETING FINANCIAL
INSTITUTIONS, (2) OBTAINING THE BENEFIT OF THE ADDITIONAL COLLATERAL
THAT CREDIT INSURANCE PROVIDES BY REPAYING LOANS UPON THE DEATH,
INJURY, OR ILLNESS OF THE BORROWER, AND (3) PROVIDING AN "ADDITIONAL
SOURCE OF INCOME-- PART OF THE PREMIUMS FROM THE INSURANCE-- TO HOLDING
COMPANY OR ITS SUBSIDIARIES." 

UNTIL 1954, ANY BORROWER WHO ELECTED TO PURCHASE THIS INSURANCE WAS
REFERRED BY THE BANKS TO TWO INDEPENDENT INSURANCE COMPANIES.  THE
PREMIUM RATE CHARGED WAS $1 PER $100 OF COVERAGE PER YEAR, THE RATE
COMMONLY CHARGED IN THE INDUSTRY.  THE INSURANCE COMMISSIONERS OF THE
STATES INVOLVED-- UTAH, IDAHO, AND TEXAS-- ACCEPTED THIS RATE.  THE
BANKS FOLLOWED A ROUTINE PROCEDURE IN MAKING THIS INSURANCE AVAILABLE
TO CUSTOMERS.  THE LENDING OFFICER WOULD EXPLAIN THE FUNCTION AND
AVAILABILITY OF CREDIT INSURANCE.  IF THE CUSTOMER DESIRED THE
COVERAGE, THE NECESSARY FORM WAS COMPLETED, A CERTIFICATE OF INSURANCE
WAS DELIVERED, AND THE PREMIUM WAS COLLECTED OR ADDED TO THE CUSTOMER'S
LOAN.  THE BANKS THEN FORWARDED THE COMPLETED FORMS AND PREMIUMS TO
MANAGEMENT COMPANY, WHICH MAINTAINED RECORDS OF THE INSURANCE PURCHASED
AND FORWARDED THE PREMIUMS TO THE INSURANCE CARRIER.  MANAGEMENT
COMPANY ALSO PROCESSED CLAIMS FILED UNDER THE POLICIES.  THE COST TO
EACH OF THE BANKS FOR THE ACTUAL TIME DEVOTED TO EXPLAINING AND
PROCESSING THE INSURANCE WAS LESS THAN $2,000 PER YEAR, CHARACTERIZED
BY THE COURTS BELOW AS "NEGLIGIBLE."  THE COST TO MANAGEMENT COMPANY OF
THE SERVICES RENDERED BY IT WAS ALSO NEGLIGIBLE, SLIGHTLY IN EXCESS OF
$2,000 PER YEAR. 

IT WAS THE CUSTOM IN THE INSURANCE BUSINESS (ALTHOUGH NOT INVARIABLY
FOLLOWED), REGARDLESS OF THE COST OF INCIDENTAL PAPERWORK, TO PAY A
"SALES COMMISSION"-- RANGING FROM 40% TO 55% OF NET PREMIUMS COLLECTED-
TO A PARTY WHO ORIGINATED OR GENERATED THE BUSINESS.  BUT THE BANKS
HAD BEEN ADVISED BY COUNSEL THAT THEY COULD NOT LAWFULLY CONDUCT THE
BUSINESS OF AN INSURANCE AGENCY OR RECEIVE INCOME RESULTING FROM THEIR
CUSTOMERS' PURCHASE OF CREDIT LIFE INSURANCE.  NEITHER THE BANKS NOR
ANY OF THEIR OFFICERS WERE LICENSED TO SELL INSURANCE, AND THERE IS NO
QUESTION HERE OF UNLAWFULLY ACTING AS UNLICENSED AGENTS.  THE BANKS
RECEIVED NO COMMISSIONS OR OTHER INCOME ON OR WITH RESPECT TO THE
CREDIT INSURANCE GENERATED BY THEM.  DURING THE PERIOD FROM 1948 TO
1954 COMMISSIONS WERE PAID BY THE INDEPENDENT COMPANIES WRITING THE
INSURANCE DIRECTLY, TO SMITH, ONE OF THE WHOLLY OWNED SUBSIDIARIES OF
HOLDING COMPANY.  THESE COMMISSIONS WERE REPORTED AS TAXABLE INCOME,
NOT BY SMITH, BUT BY MANAGEMENT COMPANY WHICH HAD RENDERED THE SERVICES
ABOVE DESCRIBED.  DURING THIS PERIOD (1948-1954), THE COMMISSIONER DID
NOT ATTEMPT TO ALLOCATE THE COMMISSIONS TO THE BANKS.  /2/ 

IN 1954, HOLDING COMPANY ORGANIED SECURITY LIFE, A NEW WHOLLY OWNED
SUBSIDIARY LICENSED TO ENGAGE IN THE INSURANCE BUSINESS.  A NEW
PROCEDURE WAS THEN ADOPTED WITH RESPECT TO PLACING CREDIT LIFE
INSURANCE.  IT WAS REFERRED BY THE BANKS TO, AND WRITTEN BY AN
INDEPENDENT COMPANY, AMERICAN NATIONAL INSURANCE COMPANY OF GALVESTON,
TEXAS (AMERICAN NATIONAL), AT THE SAME RATE TO THE CUSTOMER.  AMERICAN
NATIONAL THEN REINSURED THE POLICIES WITH SECURITY LIFE PURSUANT TO A
"TREATY OF REINSURANCE."  FOR ASSUMING THE RISK UNDER THE POLICIES SOLD
TO THE BANKS' CUSTOMERS, SECURITY LIFE RETAINED 85% OF THE PREMIUMS. 
AMERICAN NATIONAL, WHICH FURNISHED ACTUARIAL AND ACCOUNTING SERVICES,
RECEIVED THE REMAINING 15%.  NO SALES COMMISSIONS WERE PAID.  UNDER
THIS NEW PLAN, /3/  THE BANKS CONTINUED TO OFFER CREDIT LIFE INSURANCE
TO THEIR BORROWERS IN THE SAME MANNER AS BEFORE.  /4/ 

SECURITY LIFE WAS NOT A PAPER CORPORATION.  IT COMMENCED BUSINESS IN
1954 WITH AN INITIAL CAPITAL OF $25,000, WHICH WAS INCREASED IN 1956 TO
$100,000.  ALTHOUGH IT DID NOT BECOME A FULL-LINE INSURANCE COMPANY
(CONTEMPLATED AS A POSSIBILITY WHEN ORGANIZED), ITS REINSURANCE
BUSINESS WAS SUBSTANTIAL.  THE RISKS ASSUMED BY IT HAD GROWN TO
$41,350,000 BY THE END OF 1959, AND IT HAD PAID SUBSTANTIAL CLAIMS. 
/5/ 

SECURITY LIFE REPORTED THE ENTIRE AMOUNT OF REINSURANCE PREMIUMS,
85% OF THE PREMIUMS CHARGED, IN ITS INCOME FOR THE YEARS 1955-1959. 
BECAUSE THE INCOME OF LIFE INSURANCE COMPANIES THEN WAS SUBJECT TO A
LOWER EFFECTIVE TAX RATE THAN THAT OF ORDINARY CORPORATIONS, THE TOTAL
TAX LIABILITY FOR HOLDING COMPANY AND ITS SUBSIDIARIES WAS LESS THAN IT
WOULD HAVE BEEN HAD SECURITY LIFE PAID A PART OF THE PREMIUM TO THE
BANKS OR MANAGEMENT COMPANY AS SALES COMMISSIONS.  /6/  PURSUANT TO HIS
SEC. 482 POWER TO ALLOCATE GROSS INCOME AMONG CONTROLLED CORPORATIONS
IN ORDER TO REFLECT THE ACTUAL INCOMES OF THE CORPORATIONS, THE
COMMISSIONER DETERMINED THAT 40% OF SECURITY LIFE'S PREMIUM INCOME WAS
ALLOCABLE TO THE BANKS AS COMPENSATION FOR ORIGINATING AND PROCESSING
THE CREDIT LIFE INSURANCE.  /7/  IT IS THE COMMISSIONER'S VIEW THAT THE
40% OF THE PREMIUM INCOME SO ALLOCATED IS THE EQUIVALENT OF COMMISSIONS
THAT THE BANKS EARNED AND MUST BE INCLUDED IN THEIR "TRUE TAXABLE
INCOME."  /8/ 

THE PARTIES AGREE THAT SEC. 482 IS DESIGNED TO PREVENT "ARTIFICIAL
SHIFTING, MILKING, OR DISTORTING OF THE TRUE NET INCOMES OF COMMONLY
CONTROLLED ENTERPRISES."  /9/ TREASURY REGULATIONS PROVIDE: 

"THE PURPOSE OF SECTION 482 IS TO PLACE A CONTROLLED TAXPAYER ON A
TAX PARITY WITH AN UNCONTROLLED TAXPAYER, BY DETERMINING ACCORDING TO
THE STANDARD OF AN UNCONTROLLED TAXPAYER, THE TRUE TAXABLE INCOME FROM
THE PROPERTY AND BUSINESS OF A CONTROLLED TAXPAYER.  . .; THE STANDARD
TO BE APPLIED IN EVERY CASE IS THAT OF AN UNCONTROLLED TAXPAYER DEALING
AT ARM'S LENGTH WITH ANOTHER UNCONTROLLED TAXPAYER."  /10/ 

THE QUESTION WE MUST ANSWER IS WHETHER THERE WAS A SHIFTING OR
DISTORTING OF THE BANKS' TRUE NET INCOME RESULTING FROM THE RECEIPT AND
RETENTION BY SECURITY LIFE OF THE PREMIUMS ABOVE DESCRIBED.  /11/ 

WE NOTE AT THE OUTSET THAT THE BANKS COULD NEVER HAVE RECEIVED A
SHARE A OF THESE PREMIUMS.  NATIONAL BANKS ARE AUTHORIZED TO ACT AS
INSURANCE AGENTS WHEN LOCATED IN PLACES HAVING A POPULATION NOT
EXCEEDING 5,000 INHABITANTS, 12 U.S.C.A. 92.  /12/  ALTHOUGH SEC. 92
DOES NOT EXPLICITLY PROHIBIT BANKS IN PLACES WITH A POPULATION OF OVER
5,000 FROM ACTING AS INSURANCE AGENTS, COURTS HAVE HELD THAT IT DOES SO
BY IMPLICATION.  /13/  THE COMPTROLLER OF THE CURRENCY HAS ACQUIESCED
IN THIS HOLDING, /14/  AND THE COURT OF APPEALS FOR THE TENTH CIRCUIT
EXPRESSED ITS AGREEMENT IN THE OPINION BELOW. 

THE PENALTIES FOR VIOLATION OF THE BANKING LAWS INCLUDE POSSIBLE
FORFEITURE OF A BANK'S FRANCHISE AND PERSONAL LIABILITY OF DIRECTORS. 
THE TAX COURT FOUND THAT IT WOULD BE CONTRARY TO FEDERAL BANKING LAW .
. . TO RECEIVE INCOME RESULTING FROM THEIR CUSTOMERS' PURCHASE OF
CREDIT INSURANCE" AND, PURSUANT TO THIS BELIEF, "THE TWO BANKS HAVE
NEVER RECEIVED OR ATTEMPTED TO RECEIVE COMMISSIONS OR REINSURANCE
PREMIUMS RESULTING FROM THEIR CUSTOMERS' PURCHASE OF CREDIT
INSURANCE."  /15/ 

PETITIONER DOES NOT CONTEST THIS FINDING BY THE TAX COURT OR THE
HOLDING IN THIS RESPECT OF THE COURT OF APPEALS BELOW.  ACCORDINGLY, WE
ASSUME FOR PURPOSES OF THIS DECISION THAT THE BANKS WERE PROHIBITED
FROM RECEIVING INSURANCE-RELATED INCOME, ALTHOUGH THIS PROHIBITION DID
NOT APPLY TO NON-BANK SUBSIDIARIES OF HOLDING COMPANY.  /16/ 

WE KNOW OF NO DECISION OF THIS COURT WHEREIN A PERSON HAS BEEN FOUND
TO HAVE TAXABLE INCOME THAT HE DID NOT RECEIVE AND THAT HE WAS
PROHIBITED FROM RECEIVING.  IN CASES DEALING WITH THE CONCEPT OF
INCOME, IT HAS BEEN ASSUMED THAT THE PERSON TO WHOM THE INCOME WAS
ATTRIBUTED COULD HAVE RECEIVED IT.  THE UNDERLYING ASSUMPTION ALWAYS
HAS BEEN THAT IN ORDER TO BE TAXED FOR INCOME, A TAXPAYER MUST HAVE
COMPLETE DOMINION OVER IT.  "THE INCOME THAT IS SUBJECT TO A MAN'S
UNFETTERED COMMAND AND THAT HE IS FREE TO ENJOY AT HIS OWN OPTION MAY
BE TAXED TO HIM AS HIS INCOME, WHETHER HE SEES FIT TO ENJOY IT OR
NOT."  CORLISS V. BOWERS, 281 U.S. 376, 378 (1930). 

IT IS, OF COURSE, WELL ESTABLISHED THAT INCOME ASSIGNED BEFORE IT IS
RECEIVED IS NONETHELESS TAXABLE TO THE ASSIGNOR.  BUT THE ASSIGNMENT-OF
INCOME DOCTRINE ASSUMES THAT THE INCOME WOULD HAVE BEEN RECEIVED BY THE
TAXPAYER HAD HE NOT ARRANGED FOR IT TO BE PAID TO ANOTHER.  IN HARRISON
V. SCHAFFNER, 312 U.S. 579, 582 (1941), WE SAID: 

"(ONE VESTED WITH THE RIGHT TO RECEIVE INCOME (DOES) NOT ESCAPE THE
TAX BY ANY KIND OF ANTICIPATORY ARRANGEMENT, HOWEVER SKILLFULLY
DEVISED, BY WHICH HE PROCURES PAYMENT OF IT TO ANOTHER, SINCE, BY THE
EXERCISE OF HIS POWER TO COMMAND THE INCOME, HE ENJOYS THE BENEFIT OF
THE INCOME ON WHICH THE TAX IS LAID."  /17/ 

ONE OF THE COMMISSIONER'S REGULATIONS FOR THE IMPLEMENTATION OF SEC.
482 EXPRESSLY RECOGNIZES THE CONCEPT THAT INCOME IMPLIES DOMINION OR
CONTROL OF THE TAXPAYER.  IT PROVIDES AS FOLLOWS: 

"THE INTERESTS CONTROLLING A GROUP OF CONTROLLED TAXPAYERS ARE
ASSUMED TO HAVE COMPLETE POWER TO CAUSE EACH CONTROLLED TAXPAYER SO TO
CONDUCT ITS AFFAIRS THAT ITS TRANSACTIONS AND ACCOUNTING RECORDS TRULY
REFLECT THE TAXABLE INCOME FROM THE PROPERTY AND BUSINESS OF EACH OF
THE CONTROLLED TAXPAYERS."  /18/ THIS REGULATION IS CONSISTENT WITH THE
CONTROL CONCEPT HERETOFORE APPROVED BY THIS COURT, ALTHOUGH IN A
DIFFERENT CONTEXT.  THE REGULATION, AS APPLIED TO THE FACTS IN THIS
CASE, CONTEMPLATES THAT HOLDING COMPANY-- THE CONTROLLING INTEREST--
MUST HAVE "COMPLETE POWER"  TO SHIFT INCOME AMONG ITS SUBSIDIARIES.  IT
IS ONLY WHERE THIS POWER EXISTS, AND HAS BEEN EXERCISED IN SUCH A WAY
THAT THE "TRUE TAXABLE INCOME" OF A SUBSIDIARY HAS BEEN UNDERSTATED,
THAT THE COMMISSIONER IS AUTHORIZED TO REALLOCATE UNDER SEC. 482.  BUT
HOLDING COMPANY HAD NO SUCH POWER UNLESS IT ACTED IN VIOLATION OF
FEDERAL BANKING LAWS.  THE "COMPLETE POWER" REFERRED TO IN THE
REGULATIONS HARDLY INCLUDES THE POWER TO FORCE A SUBSIDIARY TO VIOLATE
THE LAW. 

APART FROM THE INEQUITY OF ATTRIBUTING TO THE BANKS TAXABLE INCOME
THAT THEY HAVE NOT RECEIVED AND MAY NOT LAWFULLY RECEIVE, NEITHER THE
STATUTE NOR OUR PRIOR DECISIONS REQUIRE SUCH A RESULT.  WE ARE NOT
FACED WITH A SITUATION SUCH AS EXISTED IN THOSE CASES, URGED BY THE
COMMISSIONER, IN WHICH WE HELD THE PROCEEDS OF CRIMINAL ACTIVITIES TO
BE TAXABLE.  /19/  THOSE CASES CONCERNED SITUATIONS IN WHICH THE
TAXPAYER HAD ACTUALLY RECEIVED FUNDS.  MOREOVER, THE ILLEGALITY
INVOLVED WAS THE ACT THAT GAVE RISE TO THE INCOME.  HERE THE
ORIGINATING AND REFERRING OF THE INSURANCE, A PRACTICE WIDELY FOLLOWED,
IS ACKNOWLEDGED TO BE LEGAL.  ONLY THE RECEIPT OF INSURANCE COMMISSIONS
OR PREMIUMS THEREON BY NATIONAL BANKS IS NOT.  HAD THE BANKS IGNORED
THE BANKING LAWS, THEREBY RISKING THE LOSS OF THEIR CHARTERS AND
SUBJECTING THEIR OFFICERS TO PERSONAL LIABILITY, /20/  THE ILLEGAL
INCOME CASES WOULD BE RELEVANT.  BUT THE BANKS FROM THE INCEPTION OF
THEIR USE OF CREDIT LIFE INSURANCE IN 1948 WERE CAREFUL NEVER TO PLACE
THEMSELVES IN THAT POSITION.  WE THINK THAT FAIRNESS REQUIRES THE TAX
TO FALL ON THE PARTY THAT ACTUALLY RECEIVES THE PREMIUMS RATHER THAN ON
THE PARTY THAT CANNOT.  /21/ 

IN L. E. SHUNK LATEX PRODUCTS, INC. V. COMMISSIONER, 18 T.C. 940
(1952), THE TAX COURT CONSIDERED A CLOSELY ANALOGOUS SITUATION.  THE
SAME INTEREST CONTROLLED A MANUFACTURER AND A DISTRIBUTOR OF RUBBER
PROPHYLACTICS.  THE OPA PRICE REGULATIONS OF WORLD WAR II BECAME
EFFECTIVE ON DECEMBER 1, 1941.  PRIOR THERETO THE DISTRIBUTOR HAD
RAISED ITS PRICES CHARGED TO ITS AFFILIATED DISTRIBUTOR.  THE
COMMISSIONER, ACTING UNDER SEC. 482, ATTEMPTED TO ALLOCATE SOME OF THE
DISTRIBUTOR'S INCOME TO THE MANUFACTURER ON THE GROUND THAT A PORTION
OF THE DISTRIBUTOR'S PROFITS WAS IN FACT EARNED BY THE MANUFACTURER,
EVEN THOUGH THE MANUFACTURER WAS PROHIBITED BY THE OPA REGULATIONS FROM
INCREASING ITS PRICES.  IN HOLDING THAT THE COMMISSIONER HAD ACTED
IMPROPERLY, THE TAX COURT SAID THAT HE HAD "NO AUTHORITY TO ATTRIBUTE
TO PETITIONERS INCOME WHICH THEY COULD NOT HAVE RECEIVED."  18 T.C.,AT
961.  /22/     IT IS ARGUED, FINALLY, THAT THE "SERVICES" RENDERED BY
THE BANKS IN MAKING CREDIT INSURANCE AVAILABLE TO CUSTOMERS "WOULD HAVE
BEEN COMPENSATED HAD THE CORPORATIONS BEEN DEALING WITH EACH OTHER AT
ARM'S LENGTH."  /23/  THE SHORT ANSWER IS THAT THE PROSCRIPTION AGAINST
ACTING AS INSURANCE AGENT AND RECEIVING COMPENSATION THEREFOR APPLIES
TO ALL NATIONAL BANKS LOCATED IN PLACES WITH POPULATION IN EXCESS OF
5,000 INHABITANTS.  IT APPLIES EQUALLY TO SUCH BANKS WHETHER OR NOT
THEY ARE CONTROLLED BY A HOLDING COMPANY.  IF THESE BANKS HAD BEEN
INDEPENDENT OF ANY SUCH CONTROL-- AS MOST BANKS ARE-- NO COMMISSIONS OR
PREMIUMS COULD HAVE BEEN RECEIVED LAWFULLY AND THERE WOULD HAVE BEEN NO
TAXABLE INCOME.  /24/  AS STATED IN THE TREASURY REGULATIONS, THE
"PURPOSE OF SECTION 482 IS TO PLACE A CONTROLLED TAXPAYER ON A TAX
PARITY WITH AN UNCONTROLLED TAXPAYER . . . . "  /25/  WE THINK OUR
HOLDING COMPORTS WITH SUCH PARITY TREATMENT. 

WE CONCLUDE THAT THE PREMIUM INCOME RECEIVED BY SECURITY LIFE COULD
NOT BE ATTRIBUTABLE TO THE BANKS.  HOLDING COMPANY DID NOT UTILIZE ITS
CONTROL OVER THE BANKS AND SECURITY LIFE TO DISTORT THEIR TRUE NET
INCOMES.  THE COMMISSIONER'S EXERCISE OF HIS SEC. 482 AUTHORITY WAS
THEREFORE UNWARRANTED IN THIS CASE.  THE JUDGMENT BELOW IS

              AFFIRMED. 

/1/  TITLE 26 U.S.C. 482 PROVIDES: 

"IN ANY CASE OF TWO OR MORE ORGANIZATIONS, TRADES, OR BUSINESSES
(WHETHER OR NOT INCORPORATED, WHETHER OR NOT ORGANIZED IN THE UNITED
STATES, AND WHETHER OR NOT AFFILIATED) OWNED OR CONTROLLED DIRECTLY OR
INDIRECTLY BY THE SAME INTERESTS, THE SECRETARY OR HIS DELEGATE MAY
DISTRIBUTE, APPORTION, OR ALLOCATE GROSS INCOME, DEDUCTIONS, CREDITS,
OR ALLOWANCES BETWEEN OR AMONG SUCH ORGANIZATIONS, TRADES, OR
BUSINESSES, IF HE DETERMINES THAT SUCH DISTRIBUTION, APPORTIONMENT, OR
ALLOCATION IS NECESSARY IN ORDER TO PREVENT EVASION OF TAXES OR CLEARLY
TO REFLECT THE INCOME OF ANY OF SUCH ORGANIZATIONS, TRADES, OR
BUSINESSESS." 

/2/  THE CORPORATE INCOME TAX IMPOSES THE SAME RATE OF TAXATION ON
TAXABLE INCOME UP TO $25,000 AND THE SAME RATE FOR INCOME GREATER THAN
$25,000.  26 U.S.C. 11.  THEREFORE, IF, EXCLUDING THE SALES COMMISSIONS
IN QUESTION, WE ASSUME, AS SEEMS LIKELY, THAT BEFORE 1954 THE INCOME OF
BOTH RESPONDENTS AND OF MANAGEMENT COMPANY EXCEEDED $25,000, THEN THE
TOTAL TAXES PAID BY THE HOLDING COMPANY SUBSIDIARIES WOULD NOT BE
AFFECTED IF THE COMMISSIONS WERE ALLOCATED WHOLLY TO RESPONDENTS, OR TO
MANAGEMENT COMPANY, OR PARTIALLY TO ALL THREE. 

/3/  THIS PLAN WAS PROPOSED TO HOLDING COMPANY BY AMERICAN NATIONAL,
WHICH WAS MAKING SIMILAR RECOMMENDATIONS TO OTHER FINANCIAL
INSTITUTIONS.  THE TAX COURT FOUND THAT INSURANCE COMPANIES ANTICIPATED
THAT LENDING INSTITUTIONS WOULD SOON BEGIN TO FORM THEIR OWN AFFILIATED
LIFE INSURANCE COMPANIES TO WRITE THE CREDIT INSURANCE, WHICH WAS
PROVING TO BE A PROFITABLE BUSINESS.  SUCH A MOVE BY LENDING
INSTITUTIONS WOULD DEPRIVE THE INDEPENDENT INSURANCE COMPANIES OF
SUBSTANTIAL CREDIT INSURANCE BUSINESS.  THE TYPE OF PLAN RECOMMENDED BY
AMERICAN NATIONAL WAS INTENDED TO SALVAGE A PORTION OF SUCH BUSINESS BY
CHARGING A FEE FOR THE ACTUARIAL, ACCOUNTING, AND OTHER SERVICES MADE
AVAILABLE TO SECURITY LIFE, WHICH REINSURED THE ENTIRE RISK.  T.C. MEMO
1967-256. 

/4/  TAXPAYERS ARE, OF COURSE, GENERALLY FREE TO STRUCTURE THEIR
BUSINESS AFFAIRS AS THEY CONSIDER TO BE IN THEIR BEST INTERESTS,
INCLUDING LAWFUL STRUCTURING (WHICH MAY INCLUDE HOLDING COMPANIES) TO
MINIMIZE TAXES.  PERHAPS THE CLASSIC STATEMENT OF THIS PRINCIPLE IS
JUDGE LEARNED HAND'S COMMENT IN HIS DISSENTING OPINION IN COMMISSIONER
V. NEWMAN, 159 F.2D 848, 850-851 (CA2 1947): 

"OVER AND OVER AGAIN COURTS HAVE SAID THAT THERE IS NOTHING SINISTER
IN SO ARRANGING ONE'S AFFAIRS AS TO KEEP TAXES AS LOW AS POSSIBLE. 
EVERYBODY DOES SO, RICH OR POOR; AND ALL DO RIGHT, FOR NOBODY OWES ANY
PUBLIC DUTY TO PAY MORE THAN THE LAW DEMANDS:  TAXES ARE ENFORCED
EXACTIONS, NOT VOLUNTARY CONTRIBUTIONS.  TO DEMAND MORE IN THE SAME OF
MORALS IS MERE CANT." 

SEE KNETSCH V. UNITED STATES, 364 U.S. 361, 365 (1960); CHIRELSTEIN,
LEARNED HAND'S CONTRIBUTION TO THE LAW OF TAX AVOIDANCE, 77 YALE L.J.
440 (1968). 

/5/  THE OPINION OF THE TAX COURT, SUPRA, INCLUDES TABLES SHOWING
THE PROFITABILITY OF SECURITY LIFE.  ITS NET WORTH (CAPITAL AND
SURPLUS) INCREASED FROM $161,370.52 AT THE END OF 1955 TO $1,050,220 AT
THE END OF 1959, DESPITE THE PAYING OUT OF CLAIMS AND CLAIMS EXPENSES
OVER THE FIVE-YEAR PERIOD TOTALING $525,787.91.  THE TAX COURT FOUND
THAT:  "ALTHOUGH SECURITY LIFE'S BUSINESS PROVED TO BE SUCCESSFUL,
THERE WAS NO WAY TO JUDGE AT THE OUTSET WHETHER IT WOULD SUCCEED.  IN
RELATION TO ITS CAPITAL STRUCTURE, SECURITY LIFE REINSURED A LARGE
AMOUNT OF RISK." 

/6/  BOTH THE LIFE INSURANCE COMPANY TAX ACT FOR 1955, 70 STAT. 36,
APPLICABLE TO THE YEARS 1955-1957, AND THE LIFE INSURANCE COMPANY
INCOME TAX ACT OF 1959, 73 STAT. 112, APPLICABE TO LATER YEARS,
ACCORDED PREFERENTIAL TAX TREATMENT TO LIFE INSURANCE COMPANIES. 

/7/  THE COMMISSIONER MADE AN ALTERNATIVE ALLOCATION TO MANAGEMENT
COMPANY.  BECAUSE IT UPHELD HIS ALLOCATION TO THE BANKS, THE TAX COURT
REJECTED THIS ALTERNATIVE.  IN REVERSING THE ALLOCATION TO THE BANKS,
THE COURT OF APPEALS FOUND THE RECORD INSUFFICIENT TO PASS ON THE
ALTERNATIVE ALLOCATION.  IT THEREFORE ORDERED THAT THE CASE BE REMANDED
TO THE TAX COURT FOR FURTHER CONSIDERATION.  THE ALTERNATIVE ALLOCATION
IS THEREFORE NOT BEFORE US. 

/8/  SEE 26 CFR 1.482-1(A)(6) (1971). 

/9/  B. BITTKER & J. EUSTICE, FEDERAL INCOME TAXATION OF
CORPORATIONS AND SHAREHOLDERS P. 15-21 (3D ED. 1971). 

/10/  26 CFR 1.482-1(B)(1) (1971).  THE FIRST REGULATIONS
INTERPRETING THIS SECTION OF THE STATUTE WERE ISSUED IN 1934.  THEY
HAVE REMAINED VIRTUALLY UNCHANGED.  JENKS, TREASURY REGULATIONS UNDER

/11/  THE COURT BELOW HELD THAT THE MERE GENERATION OF BUSINESS DOES
NOT NECESSARILY RESULT IN TAXABLE INCOME.  AS WE DECIDE THIS CASE ON A
DIFFERENT GROUND, WE NEED NOT CONSIDER THE CIRCUMSTANCES IN WHICH THE
ORIGINATION OR REFERRAL OF BUSINESS MAY OR MAY NOT RESULT IN TAXABLE
INCOME TO THE ORIGINATING PARTY.  WE DO AGREE THAT ORIGINATION OF
BUSINESS DOES NOT NECESSARILY RESULT IN SUCH INCOME.  IN THIS CASE IF
THE BANKS HAD BEEN UNAFFILIATED WITH ANY OTHER ENTITIES (I.E., HAD BEEN
SEPARATE, INDEPENDENT BANKS, UNAFFILIATED WITH ANY HOLDING COMPANY
GROUP), THEY WOULD NEVERTHELESS HAVE PERFORMED THE "SERVICES" THAT THE
COMMISSIONER ASSERTS RESULTED IN TAXABLE INCOME.  THESE SERVICES--
NAMELY THE NEGLIGIBLE PAPERWORK AND THE REFERRING OF THE CREDIT
INSURANCE TO A COMPANY LICENSED TO WRITE IT-- WERE PERFORMED (AS THE
TAX COURT NOTED) FOR THE CONVENIENCE OF BANK CUSTOMERS AND TO ASSURE
ADDITIONAL COLLATERAL FOR LOANS.  THEY ALSO MAY HAVE BEEN NECESSARY TO
MEET COMPETITION.  THE FACT OF AFFILIATION, ENABLING REFERRAL OF THE
BUSINESS TO ANOTHER SUBSIDIARY IN THE HOLDING COMPANY GROUP, DOES NOT
ALTER THE CHARACTER OF WHAT WAS DONE.  THE ACT WHICH IS RELEVANT, IN
TERMS OF GENERATING INSURANCE PREMIUMS AND COMMISSIONS, IS THE REFERRAL
OF THE BUSINESS.  WHETHER THIS REFERRAL IS TO AN AFFILIATED OR AN
UNAFFILIATED INSURANCE COMPANY SHOULD MAKE NO DIFFERENCE AS TO WHETHER
THE BANK, WHICH NEVER RECEIVES THE INCOME HAS EARNED IT. 

/12/  SECTION 92 OF THE NATIONAL BANK ACT WAS ENACTED IN 1916.  WHEN
THE STATUTES WERE REVISED IN 1918 AND RE-ENACTED, SEC. 92 WAS OMITTED. 
THE REVISERS OF THE U.S.C. HAVE OMITTED IT FROM RECENT EDITIONS OF THE
CODE.  HOWEVER, THE COMPTROLLER OF THE CURRENCY CONSIDERS SEC. 92 TO BE
EFFECTIVE AND HE STILL INCORPORATES THE PROVISION IN HIS REGULATIONS,
12 CFR 2.1-2.5 (1971). 

/13/  SAXON V. GEORGIA ASSOCIATION OF INDEPENDENT INSURANCE AGENTS,
INC., 399 F.2D 1010 (CA5 1968).  SEE COMMISSIONER V. MORRIS TRUST, 367
F.2D 794, 795 (CA4 1966). 

/14/  12 CFR 2.1-2.5 (1971). 

/15/  FINDINGS OF FACT AND OPINION IN T.C. MEMO 1967-256, P. 67
1456, FILED DEC. 27, 1967, IN THIS CASE. 

/17/  MR. JUSTICE MARSHALL'S DISSENTING OPINION IS BASED ON THE
"CRUCIAL FACT . . . (THAT) RESPONDENTS (THE BANKS) HAVE ALREADY
VIOLATED THE FEDERAL STATUTE AND REGULATIONS BY SOLICITING INSURANCE
PREMIUMS."  THE STATUTE, 12 U.S.C.A. 92, PROHIBITS A NATIONAL BANK FROM
ACTING "AS THE AGENT" OF AN INSURANCE COMPANY "BY SOLICITING AND
SELLING INSURANCE AND COLLECTING PREMIUMS ON POLICIES."  MR. JUSTICE
MARSHALL CONCLUDES THAT THE BANKS HAVE VIOLATED THIS STATUTE, AND NOTES
THAT "THE PENALTIES . . . ARE INDEED SEVERE." 

THIS FINDING OF ILLEGALITY, WITH RESPECT TO CONDUCT OF THE BANKS
EXTENDING BACK TO 1948, IS WITHOUT SUPPORT EITHER IN THE RECORD OR IN
ANY AUTHORITY CITED.  INDEED, THE RECORD IS TO THE CONTRARY.  THE TAX
COURT FOUND AS A FACT THAT THERE WAS NO "AGENCY AGREEMENT" BETWEEN THE
BANKS AND THE INSURANCE COMPANIES; IT FURTHER FOUND THAT THE BANKS
"MADE AVAILABLE" THE CREDIT INSURANCE TO THEIR CUSTOMERS.  THERE IS NO
FINDING, AND NOTHING IN THE RECORD TO SUPPORT A FINDING, THAT THE BANKS
WERE AGENTS OF THE INSURANCE COMPANIES OR THAT THEY ENGAGED IN "SELLING
INSURANCE" WITHIN THE MEANING OF THE STATUTE.  THE BANKS NO DOUBT
"SOLICITED" IN THE SENSE THAT THEY ENCOURAGED THEIR CUSTOMERS TO TAKE
OUT THE INSURANCE.  BUT IN THE ABSENCE OF AN AGENCY RELATIONSHIP, AND
IN VIEW OF THE UNDISPUTED FACT THAT THE BANKS RECEIVED NO COMMISSIONS
OR PREMIUMS, IT CANNOT BE SAID THAT THERE WAS A VIOLATION OF THE
STATUTE.  MOREOVER, THE BANKS WERE REGULARLY EXAMINED BY THE FEDERAL
BANKING AUTHORITIES "LOOKING FOR VIOLATIONS IN THE NATIONAL BANKING
LAWS."  THE MAKING OF CREDIT INSURANCE AVAILABLE TO CUSTOMERS WAS AND
IS A COMMON PRACTICE IN THE BANKING BUSINESS.  THERE IS NO SUGGESTION
THAT THE FEDERAL BANKING AUTHORITIES CONSIDERED THIS SERVICE TO
CUSTOMERS TO BE A VIOLATION OF THE LAW AS LONG AS THE BANKS RECEIVED NO
COMMISSIONS OR FEES.  THIS ADMINISTRATIVE INTERPRETATION OVER MANY
YEARS IS ENTITLED TO GREAT WEIGHT. 

THE DISSENTING OPINION RAISES THIS SERIOUS ISSUE FOR THE FIRST
TIME.  IT WAS NOT RAISED AT ANY STAGE IN THE PROCEEDINGS BELOW.  NOR
WAS IT BRIEFED OR ARGUED IN THIS COURT.  THE COMMISSIONER, THE TAX
COURT, THE COURT OF APPEALS, AND THE SOLICITOR GENERAL ALL ASSUMED THAT
THE BANKS'  CONDUCT IN THIS RESPECT WAS PERFECTLY LAWFUL.  BUT QUITE
APART FROM THE CONSISTENT ADMINISTRATIVE ACCEPTANCE AND FROM THE
ASSUMPTIONS BY THE COMMISSIONER AND THE COURTS BELOW, WE THINK THERE IS
NO BASIS FOR A FINDING OF THIS SERIOUS STATUTORY VIOLATION. 

/17/ SEE HELVERING V. HORST, 311 U.S. 112 (1940) (ASSIGNMENT OF
INTEREST COUPONS ATTACHED TO BONDS OWNED BY TAXPAYER); LUCAS V. EARL,
281 U.S. 111 (1930) (TAXPAYER ASSIGNED TO WIFE ONE-HALF INTEREST IN HIS
EARNINGS).  SEE GENERALLY COMMISSIONER V. SUNNEN, 333 U.S. 591 (1948),
AND CASES DISCUSSED THEREIN AT 604-610. 

/18/  26 CFR 1.482-1(B)(1) (1971). 

/19/  JAMES V. UNITED STATES, 366 U.S. 213 (1961); RUTKIN V. UNITED
STATES, 343 U.S. 130 (1952). 

/20/  12 U.S.C. 93. 

/21/  THUS, IN COMMISSIONER V. LESTER, 366 U.S. 299 (1961), IN
DETERMINING THAT A TAXPAYER SHOULD NOT BE TAXED ON ALIMONY PAYMENTS TO
HIS DIVORCED WIFE, THE COURT DETERMINED THAT IT WAS MORE CONSISTENT
WITH THE BASIC PRECEPTS OF INCOME TAX LAW THAT THE WIFE, WHO RECEIVED
AND HAD POWER TO SPEND THE PAYMENTS, SHOULD BE TAXED RATHER THAN THE
HUSBAND WHO ACTUALLY EARNED THE MONEY. 

/22/  AS NOTED AT THE OUTSET OF THIS OPINION, CERTIORARI WAS GRANTED
TO RESOLVE THE CONFLICT BETWEEN THE DECISION BELOW AND THAT IN LOCAL
FINANCE CORP. V. COMMISSIONER, 407 F.2D 629 (CA7 1969).  THE TAX COURT
IN THIS CASE FELT BOUND TO FOLLOW LOCAL FINANCE CORP., WHICH WAS
DECIDED SUBSEQUENTLY TO L. E. SHUNK LATEX PRODUCTS, INC. V.
COMMISSIONER, 18 T.C. 940 (1952).  FOR THE REASONS STATED IN THE
OPINION ABOVE, WE THINK LOCAL FINANCE CORP. WAS ERRONEOUSLY DECIDED AND
THAT THE EARLIER VIEWS OF THE TAX COURT WERE CORRECT. 

SEE TESCHNER V. COMMISSIONER, 38 T.C. 1003, 1009 (1962): 

"IN THE CASE BEFORE US, THE TAXPAYER, WHILE HE HAD NO POWER TO
DISPOSE OF INCOME, HAD A POWER TO APPOINT OR DESIGNATE ITS RECIPIENT. 
DOES THE EXISTENCE OR EXERCISE OF SUCH A POWER ALONE GIVE RISE TO
TAXABLE INCOME IN HIS HANDS?  WE THINK CLEARLY NOT.  IN NICHOLAS A.
STAVROUDIS, 27 T.C. 583, 590 (1956), WE FOUND IT TO BE SETTLED DOCTRINE
THAT A POWER TO DIRECT THE DISTRIBUTION OF TRUST INCOME TO OTHERS IS
NOT ALONE SUFFICIENT TO JUSTIFY THE TAXATION OF THAT INCOME TO THE
POSSESSOR OF SUCH A POWER." 

/23/  SEE DISSENTING OPINION OF MR. JUSTICE BLACKMUN, POST, AT 422. 

/24/  IF AN UNAFFILIATED BANK WERE ABLE TO PROVIDE THE INSURANCE AT
A CHEAPER RATE BECAUSE NO COMMISSIONS WERE PAID, THIS WOULD BENEFIT THE
CUSTOMERS BUT WOULD RESULT IN NO TAXABLE INCOME. 

/25/  26 CFR 1.482-1(B)(1) (1971). 

MR. JUSTICE MARSHALL, DISSENTING. 

THE FACTS OF THIS CASE ILLUSTRATE THE NATURAL AFFINITY THAT LENDING
INSTITUTIONS AND INSURANCE COMPANIES HAVE FOR EACH OTHER.  CONGRESS
DEPENDS ON THE ABILITY OF THE COMMISSIONER OF INTERNAL REVENUE TO
UTILIZE SEC. 482 OF THE INTERNAL REVENUE CODE, 26 U.S.C. 482, TO INSURF
THAT THIS AFFINITY DOES NOT PROVIDE A BASIS FOR TAX AVOIDANCE.  H.R.
REP. NO. 1098, 84TH CONG., 1ST SESS., 7; S. REP. NO. 1571, 84TH CONG.,
2D SESS., 8.  IN MY OPINION, TODAY'S DECISION RENDERS SEC. 482 A LESS
EFFICACIOUS WEAPON AGAINST TAX AVOIDANCE SCHEMES THAN CONGRESS INTENDED
AND PROVIDES THE RESPONDENTS WITH AN UNWARRANTED TAX ADVANTAGE.  I
DISSENT.     SECTION 482 PROVIDES: 

     "IN ANY CASE OF TWO OR MORE ORGANIZATIONS, TRADES, OR

  BUSINESSES (WHETHER OR NOT INCORPORATED, WHETHER OR NOT ORGANIZED

  IN THE UNITED STATES, AND WHETHER OR NOT AFFILIATED) OWNED OR

  CONTROLLED DIRECTLY OR INDIRECTLY BY THE SAME INTERESTS, THE

  SECRETARY OR HIS DELEGATE MAY DISTRIBUTE, APPORTION, OR ALLOCATE

GROSS INCOME, DEDUCTIONS, CREDITS, OR ALLOWANCES BETWEEN OR AMONG

  SUCH ORGANIZATIONS, TRADES, OR BUSINESSES, IF HE DETERMINES THAT

  SUCH DISTRIBUTION, APPORTIONMENT, OR ALLOCATION IS NECESSARY IN

  ORDER TO PREVENT EVASION OF TAXES OR CLEARLY TO REFLECT THE

  INCOME OF ANY OF SUCH ORGANIZATIONS, TRADES, OR BUSINESSES." 

FIRST ENACTED AS SEC. 45 OF THE REVENUE ACT OF 1928, 45 STAT. 806,
THE STATUTE WAS INTENDED TO PREVENT THE AVOIDANCE OF TAX LIABILITY
THROUGH FICTIONS AND "TO DENY THE POWER TO SHIFT INCOME . . .
ARBITRARILY AMONG CONTROLLED CORPORATIONS, AND TO PLACE SUCH
CORPORATIONS RATHER ON A PARITY WITH UNCONTROLLED CONCERNS."  CENTRAL
CUBA SUGAR CO. V. COMMISSIONER, 198 F.2D 214, 216 (CA2 1952).  SEE H.R.
REP. NO. 2, 70TH CONG., 1ST SESS., 16-17; S. REP. NO. 960, 70TH CONG.,
1ST SESS., 24-25.  IT IS INTENDED TO SERVE THE SAME PURPOSE IN THE
PRESENT CODE. 

IT IS WELL-ESTABLISHED LAW THAT IN ANALYZING A TRANSACTION UNDER
SEC. 482, THE TEST IS WHETHER THE ARRANGEMENT AS STRUCTURED FOR INCOME
TAX PURPOSES BY INTERLOCKING CORPORATE INTERESTS WOULD HAVE BEEN
SIMILARLY STRUCTURED BY TAXPAYERS DEALING AT ARM'S LENGTH.  SEE, E.G.,
BORGE V. COMMISSIONER, 405 F.2D 673 (CA2 1968), CERT. DENIED SUB NOM.
DANICA ENTERPRISES V. COMMISSIONER, 395 U.S. 933 (1969); ELI LILLY &
CO. V. UNITED STATES, 178 CT.CL. 666, 372 F.2D 990 (1967). 

APPLYING THAT TEST TO THIS CASE, THE FOLLOWING FACTS ARE RELEVANT. 
BEFORE 1954, AN INDEPENDENT INSURANCE COMPANY PAID RESPONDENTS
COMMISSIONS RANGING FROM 40% TO 45% FOR THEIR SERVICES IN OFFERING
INSURANCE TO BORROWERS DESIGNED TO DISCHARGE THEIR DEBTS IN THE EVENT
THAT THEY DIED OR BECAME DISABLED DURING THE TERM OF THEIR LOANS. 
AFTER 1954, RESPONDENTS OFFERED BORROWERS POLICIES ISSUED BY A
DIFFERENT INSURANCE COMPANY.  AT THIS TIME THE HOLDING COMPANY THAT
CONTROLLED RESPONDENTS CREATED A NEW SUBSIDIARY TO REINSURE THE
BORROWERS WHO PURCHASED POLICIES.  BY PAYING OFF THE INDEPENDENT
INSURANCE COMPANY WITH 15% OF THE PROCEEDS OF THE POLICIES, THE
SUBSIDIARY ASSUMED THE INSURANCE RISKS AND GARNERED THE REMAINING 85%
OF THE PROCEEDS.  NO COMMISSION WAS PAID TO RESPONDENTS BY EITHER THE
INDEPENDENT COMPANY OR THE INSURANCE SUBSIDIARY. 

THE TAX ADVANTAGE OF THE POST-1954 STRUCTURE DERIVED FROM THE FACT
THAT THE LIFE INSURANCE COMPANY TAX ACT FOR 1955, 70 STAT. 36, AS
AMENDED BY THE LIFE INSURANCE COMPANY INCOME TAX ACT OF 1959, 73 STAT.
112, AS AMENDED, 26 U.S.C. 801 ET SEQ., GIVES PREFERENTIAL TAX
TREATMENT TO LIFE INSURANCE COMPANIES.  BY FUNNELING ALL PROCEEDS FROM
THE SALES OF THE INSURANCE POLICIES TO A SUBSIDIARY THAT QUALIFIED FOR
TAX TREATMENT AS A LIFE INSURANCE COMPANY, THE HOLDING COMPANY AVOIDED
THE HEAVIER TAX THAT WOULD HAVE BEEN IMPOSED ON RESPONDENTS HAD THEY
BEEN PAID COMMISSIONS. 

THE COMMISSIONER'S ANALYSIS OF THIS CASE IS NOT OVERLY COMPLEX:  HE
SAW THAT RESPONDENTS PERFORMED ESSENTIALLY THE SAME SERVICES AND
GENERATED THE SAME INCOME AFTER 1954 THAT THEY DID BEFORE, AND HE
CONCLUDED THAT SEC. 482 REQUIRED THAT THEY SHOULD BE TAXED ON THE
PREMIUMS THAT THEY WERE ACTUALLY EARNING. 

BASED ON RESPONDENTS' EARLIER EXPERIENCE DEALING AT ARM'S LENGTH
WITH AN INDEPENDENT INSURANCE COMPANY AND ON THE WELL-KNOWN FACT THAT
INSURERS PAY SOLICITORS A PORTION OF THE PREMIUM AS A COMMISSION FOR
GENERATING INCOME, SEE LOCAL FINANCE CORP. V. COMMISSIONER, 48 T.C.
773, 786 (1967), AFF'D, 407 F.2D 629, 631-632 (CA7 1969), THE
COMMISSIONER DETERMINED THAT 40% OF THE PREMIUM INCOME WAS PROPERLY
ALLOCATED TO RESPONDENTS. 

THE RESPONDENTS MAKE, IN ESSENCE, TWO ARGUMENTS IN THEIR ATTEMPT TO
REBUT THE COMMISSIONER'S POSITION.  FIRST, THEY URGE THAT THEY NEVER
RECEIVED ANY FUNDS AS A RESULT OF OFFERING THE POLICIES TO BORROWERS,
AND THAT IT IS THEREFORE UNFAIR TO TAX THEM ON ANY PORTION OF SAID
PROCEEDS.  IF SEC. 482 IS TO HAVE ANY MEANING, THAT ARGUMENT MUST BE
REJECTED.  IT MAKES ABSOLUTELY NO SENSE TO EXAMINE THIS CASE WITH A
TECHNICAL EYE AS TO WHETHER RESPONDENTS ACTUALLY RECEIVED OR HAD A
"RIGHT" TO RECEIVE ANY COMMISSIONS.  THIS IS NOT A CASE INVOLVING
INDEPENDENT COMPANIES OR PRIVATE INDIVIDUALS WHERE WE MUST SCRUPULOUSLY
AVOID TAXING SOMEONE ON MONEY HE WILL NEVER RECEIVE REGARDLESS OF HIS
WILL IN THE MATTER.  SEE, E.G., BLAIR V. COMMISSIONER, 300 U.S. 5
(1937); CF. TESCHNER V. COMMISSIONER, 38 T.C. 1003 (1962).  THIS IS A
CASE INVOLVING RELATED CORPORATIONS, AND SEC. 482 RECOGNIZES THAT SUCH
CORPORATIONS MAY BE TREATED DIFFERENTLY FROM NATURAL PERSONS OR
UNRELATED CORPORATIONS FOR CERTAIN TAX PURPOSES. 

WE NEED NOT LOOK FAR TO FIND THAT THIS ENTIRE COMPLICATED ECONOMIC
STRUCTURE-- ESTABLISHED, DESIGNED, ADMINISTERED, AND AMENDABLE BY THE
HOLDING COMPANY-- HAD THE RIGHT TO THE PROCEEDS.  PURSUANT TO SEC. 482,
THE COMMISSIONER PROPERLY ATTEMPTED TO INSURE THAT THE PROCEEDS WOULD
BE EQUITABLY ALLOCATED. 

THE COURT APPARENTLY CONCEDES THAT IF RESPONDENTS' ONLY ARGUMENT
AGAINST TAXATION WERE THAT THEY HAVE RECEIVED NO MONEY, THAT ARGUMENT
WOULD FAIL.  THIS CONCESSION IS, IN FACT, MANDATED BY VARIOUS DECISIONS
OF THIS COURT, INCLUDING HARRISON V. SCHAFFNER, 312 U.S. 579 (1941);
HELVERING V. HORST, 311 U.S. 112 (1940), AND LUCAS V. EARL, 281 U.S.
111 (1930). 

HAVING IMPLICITLY REJECTED THE ARGUMENT THAT MERE NONRECEIPT OF
MONEY IS SUFFICIENT TO AVOID TAXATION, THE COURT PROCEEDS TO ACCEPT
RESPONDENTS' SECOND ARGUMENT THAT IN THIS CASE THE TAXPAYER IS LEGALLY
BARRED FROM EVER RECEIVING MONEY, AND IN THIS CIRCUMSTANCE HE CANNOT BE
TAXED ON IT.  RESPONDENTS FIND A LEGAL BAR TO RECEIPT OF THE PROCEEDS
AT ISSUE HERE IN 12 U.S.C.A. 92, WHICH PROVIDES: 

     "IN ADDITION TO THE POWERS NOW VESTED BY LAW IN NATIONAL

  BANKING ASSOCIATIONS ORGANIZED UNDER THE LAWS OF THE UNITED

  STATES ANY SUCH ASSOCIATION LOCATED AND DOING BUSINESS IN ANY

  PLACE THE POPULATION OF WHICH DOES NOT EXCEED FIVE THOUSAND

  INHABITANTS, AS SHOWN BY THE LAST PRECEDING DECENNIAL CENSUS,

  MAY, UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE

COMPTROLLER OF OF THE CURRENCY, ACT AS THE AGENT FOR ANY FIRE,

  LIFE, OR OTHER INSURANCE COMPANY AUTHORIZED BY THE AUTHORITIES OF

  THE STATE IN WHICH SUCH BANK IS LOCATED TO DO BUSINESS IN SAID

  STATE, BY SOLICITING AND SELLING INSURANCE AND COLLECTING

  PREMIUMS ON POLICIES ISSUED BY SUCH COMPANY; AND MAY RECEIVE FOR

  SERVICES SO RENDERED SUCH FEES OR COMMISSIONS AS MAY BE AGREED

  UPON BETWEEN THE SAID ASSOCIATION AND THE INSURANCE COMPANY FOR

  WHICH IT MAY ACT AS AGENT; AND MAY ALSO ACT AS THE BROKER OR

  AGENT FOR OTHERS IN MAKING OR PROCURING LOANS ON REAL ESTATE

LOCATED WITHIN ONE HUNDRED MILES OF THE PLACE IN WHICH SAID BANK

  MAY BE LOCATED, RECEIVING FOR SUCH SERVICES A REASONABLE FEE OR

  COMMISSION:  PROVIDED, HOWEVER, THAT NO SUCH BANK SHALL IN ANY

  CASE GUARANTEE EITHER THE PRINCIPAL OR INTEREST OF ANY SUCH LOANS

  OR ASSUME OR GUARANTEE THE PAYMENT OF ANY PREMIUM ON INSURANCE

  POLICIES ISSUED THROUGH ITS AGENCY BY ITS PRINCIPAL:  AND

  PROVIDED FURTHER, THAT THE BANK SHALL NOT GUARANTEE THE TRUTH OF

  ANY STATEMENT MADE BY AN ASSURED IN FILING HIS APPLICATION FOR

  INSURANCE." 

THIS STATUTE BY INFERENCE AND THE REGULATIONS OF THE COMPTROLLER OF
THE CURRENCY, 12 CFR 2.1-2.5, BY EXPLICIT LANGUAGE BAR NATIONAL BANKS
IN COMMUNITIES WITH MORE THAN 5,000 INHABITANTS FROM SELLING,
SOLICITING, OR RECEIVING THE PROCEEDS FROM SELLING INSURANCE. 
RESPONDENTS ARE WITHIN THE LEGAL PROHIBITION AND THE PENALTIES PROVIDED
FOR A VIOLATION ARE INDEED SEVERE.  ASSUMING THAT THE RESPONDENTS WILL
NOT ATTEMPT TO VIOLATE THE LAW AND NOT WISHING TO APPEAR TO ENCOURAGE A
VIOLATION, THE COURT CONCLUDES THAT RESPONDENTS WILL RECEIVE NONE OF
THE PROCEEDS AND THAT THEY CANNOT BE TAXED ON MONEY THEY WILL NEVER
RECEIVE. 

BUT THE CRUCIAL FACT IN THIS CASE IS THAT UNDER THEIR OWN THEORY
RESPONDENTS HAVE ALREADY VIOLATED THE FEDERAL STATUTE AND REGULATIONS
BY SOLICITING INSURANCE PREMIUMS.  TITLE 12 U.S.C.A. 92 WAS ADDED TO
THE FEDERAL BANKING LAWS IN 1916 AT THE SUGGESTION OF JOHN SKELTON
WILLIAMS, WHO WAS THEN COMPTROLLER OF THE CURRENCY.  HE WROTE TO
CONGRESS TO RECOMMEND THAT NATIONAL BANKS IN SMALL COMMUNITIES BE
PERMITTED TO ASSOCIATE WITH INSURANCE COMPANIES, BUT THAT BANKS IN
LARGER COMMUNITIES BE PROHIBITED FROM DOING THE SAME: 

     "IT SEEMS DESIRABLE FROM THE STANDPOINT OF PUBLIC POLICY AND

  BANKING EFFICIENCY THAT THIS AUTHORITY SHOULD BE LIMITED TO BANKS

  IN SMALL COMMUNITIES.  THIS ADDITIONAL INCOME WILL STRENGTHEN

THEM AND INCREASE THEIR ABILITY TO MAKE A FAIR RETURN TO THEIR

  SHAREHOLDERS, WHILE THE NEW BUSINESS IS NOT LIKELY TO ASSUME SUCH

  PROPORTIONS AS TO DISTRACT THE OFFICERS OF THE BANK FROM THE

  PRINCIPAL BUSINESS OF BANKING.  FURTHERMORE IN MANY SMALL PLACES

  THE AMOUNT OF INSURANCE POLICIES WRITTEN; . . IS NOT SUFFICIENT

  TO TAKE UP THE ENTIRE TIME OF AN INSURANCE BROKER, AND THE BANK

  IS NOT THEREFORE LIKELY TO TRESPASS UPON OUTSIDE BUSINESS

  NATURALLY BELONGING TO OTHERS. 

      "I THINK IT WOULD BE UNWISE AND THEREFORE UNDESIRABLE TO
CONFER

  THIS PRIVILEGE GENERALLY UPON BANKS IN LARGE CITIES WHERE THE

  LEGITIMATE BUSINESS OF BANKING AFFORDS AMPLE SCOPE FOR THE

  ENERGIES OF TRAINED AND EXPERT BANKERS.  I THINK IT WOULD BE

  UNFORTUNATE IF ANY MOVEMENT SHOULD BE MADE IN THE DIRECTION OF

  PLACING THE BANKS OF THE COUNTRY IN THE CATEGORY OF DEPARTMENT

  STORES.  . . . " LETTER OF JUNE 8, 1916, TO SENATE, 53

  CONG;REC.  11001. 

THERE IS NOTHING IN THE HISTORY OF THE PROVISION TO INDICATE THAT
CONGRESS WAS MORE CONCERNED WITH BANKS' ACTUALLY RECEIVING MONEY THAN
WITH THEIR PERFORMING THE ACTIVITIES THAT GENERATED THE MONEY.  IN
FACT, THE HISTORY THAT THAT IS AVAILABLE INDICATES THAT IT IS THE
ACTIVITIES THEMSELVES THAT CONGRESS WISHED TO STOP.  BANKS IN LARGE
COMMUNITIES WERE SIMPLY NOT PERMITTED TO DO ANYTHING THAT INSURANCE
AGENTS MIGHT DO, I.E., THEY WERE NOT PERMITTED TO SOLICIT INSURANCE. 

UNDER RESPONDENTS' THEORY OF THE CASE, THE LEGAL VIOLATION IS THUS A
FAIT ACCOMPLI AND THE RESPONDENTS ARE TAXABLE AS IF THERE HAD BEEN NO
ILLEGALITY.  /1/  SEE, E.G., UNITED STATES V. SULLIVAN, 274 U.S. 259
(1927); RUTKIN V. UNITED STATES, 343 U.S. 130 (1952); JAMES V. UNITED
STATES, 366 U.S. 213 (1961).  SEE ALSO TANK TRUCK RENTALS V.
COMMISSIONER, 356 U.S. 30 (1958). 

THE COURT SEEKS, HOWEVER, TO DISTINGUISH ALL OF THE PRIOR CASES
HOLDING THAT A TAXPAYER MAY BE TAXED ON INCOME ILLEGALLY EARNED ON THE
GROUND THAT THE ISSUE WAS NEVER RAISED AS TO WHETHER THE TAXPAYERS IN
THOSE CASES HAD ACTUALLY RECEIVED THE INCOME.  THE DISTINCTION IS VALID
BUT IT DOES NOT WARRANT A DIFFERENT RESULT IN THIS CASE. 

THE REASONING OF THE MAJORITY RUNS ALONG THESE LINES:  IF A VIOLATES
THE LAW-- BY ATTEMPTED EMBEZZLEMENT OR BY ILLEGALLY SOLICITING
INSURANCE SALES, FOR EXAMPLE-- BUT HE RECEIVES NO MONEY AND HAS NO
"LEGAL RIGHT" TO RECEIVE ANY MONEY, THEN HE CANNOT BE TAXED AS IF THE
MONEY HAD BEEN RECEIVED; BUT, IF A ACTUALLY EMBEZZLES MONEY OR RECEIVES
INSURANCE PREMIUMS IN VIOLATION OF THE LAW, A CAN BE TAXED EVEN THOUGH
HE MAY HAVE TRANSFERRED THE MONEY WITHOUT ANY PERSONAL GAIN TO A THIRD
PARTY FROM WHOM HE HAS NO RIGHT OF RECOVERY. 

I WOULD AGREE WITH THIS ANALYSIS IN MOST CASES.  WHERE I DIFFER FROM
THE COURT IS IN WHICH CATEGORY TO PLACE THIS TRANSACTION.  TO PRETEND
THAT RESPONDENTS HAVE NOT RECEIVED ANY MONEY AND HAVE NO RIGHT TO ANY
MONEY IS TO IGNORE THE THRUST OF SEC. 482.  THAT SECTION REQUIRES THAT
WE TREAT THIS CASE AS IF THE COMMISSIONS HAD BEEN PAID TO RESPONDENTS
AND HAD BEEN TRANSFERRED TO THE INSURANCE SUBSIDIARY BY THEM.  OF
COURSE, THAT DID NOT OCCUR.  BUT, WE KNOW THAT THE WHOLE NOTION OF THE
TO ITS SUBSTANCE.  THE SUBSTANCE IS EITHER THAT THE RESPONDENTS
VIOLATED FEDERAL LAW, EARNED ILLEGAL INCOME, ATTEMPTED TO AVOID
TAXATION ON THE INCOME BY CHANNELING IT ELSEWHERE, AND WERE CAUGHT BY
THE COMMISSIONER; OR, THAT THEY DID NOT VIOLATE FEDERAL LAW BY
SOLICITING SALES OF INSURANCE AND THAT THERE IS NO LEGAL BAR TO THEIR
RECEIVING THE PROCEEDS FROM THEIR SALES.  IN EITHER CASE, THE RESULT IS
THE SAME, AND RESPONDENTS CANNOT PREVAIL. 

IF RESPONDENTS HAD ACTUALLY RECEIVED THE PROCEEDS AND TRANSFERRED
THEM TO THE INSURANCE SUBSIDIARY, THEY WOULD STILL BE FREE TO MAKE
ESSENTIALLY THE SAME ARGUMENT THAT THEY MAKE IN THIS CASE, I.E., THEY
COULD ARGUE THAT FEDERAL LAW PROHIBITED THEM FROM RECEIVING THE MONEY;
THAT THEY VIOLATED FEDERAL LAW, BUT HAD NO RIGHT TO KEEP THE MONEY; AND
THAT THEY SHOULD NOT BE TAXED ON RECEIPT OF FUNDS WHICH THEY COULD NOT
LEGALLY KEEP. 

TO BE CONSISTENT WITH THE ASSIGNMENT-OF-INCOME CASES, HELVERING V.
HORST, SUPRA, AND LUCAS V. EARL, SUPRA, AND THE LINE OF CASES THAT
INCLUDES RUTKIN V. UNITED STATES, SUPRA, AND JAMES V. UNITED STATES,
SUPRA, THE COURT WOULD HAVE TO REJECT THIS ARGUMENT.  YET, I MAINTAIN
THAT THIS IS JUST WHAT THE TAXPAYER IS ARGUING HERE.  THE COMMISSIONER
HAS DETERMINED THAT IN REALITY THE RESPONDENTS HAVE EARNED INCOME, AND
HE HAS TAXED IT UNDER SEC. 482.  TO REJECT HIS POSITION IS TO GIVE
UNDUE WEIGHT TO THE ABSENCE OF TECHNICAL TEMPORARY POSSESSION OF MONEY
AND SOME ABSTRACT CONCEPT OF A "RIGHT" TO RECEIVE IT.  I HAD THOUGHT
THAT THIS KIND OF TECHNICAL REASONING WAS REJECTED IN JAMES V. UNITED
STATES, SUPRA, WHEN THE COURT OVERRULED COMMTSSIONER V. WILCOX, 327
U.S. 404 (1946). 

FINALLY, EVEN IF THERE IS SOME MYSTERIOUS REASON WHY THE BANKING
LAWS SHOULD BE READ IN THE MANNER SUGGESTED BY RESPONDENTS, THERE IS
STILL ANOTHER REASON WHY THEY SHOULD NOT PREVAIL.  THE FACT WOULD
REMAIN THAT THEY CONSCIOUSLY CHOSE TO PERFORM SERVICES IN ORDER THAT
THEIR PARENT HOLDING COMPANY WOULD REAP FINANCIAL REWARDS.  /2/
CERTAINLY, THERE IS NOTHING IN THE FEDERAL BANKING LAWS THAT REQUIRED
THE PERFORMANCE OF THESE SERVICES.  IN THE CONTEXT OF A COMPLEX
CORPORATE STRUCTURE MINISTERED BY ONE LARGE HODLING COMPANY, THE
PURPOSES OF SEC. 482 ARE BEST SERVED BY PERMITTING THE COMMISSIONER TO
ALLOCATE INCOME TO THE COMPANY THAT EARNS IT, RATHER THAN TO THE
COMPANY THAT RECEIVES IT.  AGAIN, WE MUST REMEMBER THAT THIS IS NOT A
CASE OF UNRELATED PRIVATE INDIVIDUALS OR INDEPENDENT CORPORATIONS WHERE
THERE MIGHT BE SOME DANGER THAT IN ALLOCATING INCOME TO THE PERSON WHO
GENERATED BUT DID NOT RECEIVE IT, THE COMMISSIONER WOULD RENDER THAT
PERSON FINANCIALLY UNABLE TO PAY HIS TAXES.  THIS CASE INVOLVES ONE
LARGE INTERRELATED SYSTEM.  IT WOULD BE TOTAL FICTION TO ASSUME THAT
THE HOLDING COMPANY WOULD LEAVE ITS SUBSIDIARIES IN A FINANCIAL BIND. 
HENCE, THERE IS NO GOOD REASON TO BAR THE COMMISSIONER FROM TAXING
RESPONDENTS ON THE MONEY THAT THEY EARN.  /3/ 

IN MY VIEW, THE COMMISSIONER HAS DONE EXACTLY WHAT SEC. 482 REQUIRES
HIM TO DO IN THIS CASE.  ACCORDINGLY, I WOULD REVERSE THE DECISION OF
THE COURT OF APPEALS AND WOULD REMAND THE CASE WITH A DIRECION THAT
JUDGMENT BE ENTERED FOR THE PETITIONER. 

/1/  NEITHER THE STATUTE NOR THE REGULATIONS USE THE WORDS
"ORIGINATING AND REFERRING" INSURANCE.  THESE ARE THE WORDS CHOSEN BY
THE COURT TO DESCRIBE THE RESPONDENTS' ACTIVITIES, ANTE, AT 405.  THE
STATUTE AND REGULATIONS SPEAK OF "SOLICITING AND SELLING."  BECAUSE THE
RESPONDENTS THEMSELVES ARGUE THAT THEY WOULD VIOLATE SEC. 92 AND THE
REGULATIONS WERE THEY TO RECEIVE THE INCOME GENERATED BY THEIR
ACTIVITIES, I ASSUME THAT THEY, IN EFFECT, ARE ADMITTING THAT THESE
ACITIVITES AMOUNTED TO "SOLICITING AND SELLING" INSURANCE.  THUS, THE
COMMISSIONER COULD PROPERLY DETERMINE THAT THE STATUTE WAS VIOLATED BY
THE ACTS OF SOLICITATION, AND, AS THE COURT RECOGNIZES, SINCE "THE
ILLEGALITY INVOLVED WAS THE ACT WHICH GAVE RISE TO THE INCOME," THIS
COURT'S PRIOR DECISIONS PERMIT THE COMMISSIONER TO TAX THE INCOME OF
THE LAWBREAKERS. 

IF, HOWEVER, THE COURT IS ATTEMPTING TO DISTINGUISH SUB SILENTIO
BETWEEN "ORIGINATING AND REFERRING" AND "SOLICITING" AND IS CONCLUDING
THAT ONLY THE LATTER IS ILLEGAL, THEN THERE IS NOTHING IN THE STATUTE
OR REGULATIONS THAT WOULD MAKE ILLEGAL THE RECEIPT OF INCOME GENERATED
BY THE FORMPR.  HENCE, THE COMMISSIONER COULD REJECT THE RESPONDENTS'
SECOND ARGUMENT THAT IT WOULD VIOLATE FEDERAL BANKING LAWS TO INCLUDE
THE PROCEEDS IN THEIR INCOME. 

WHICHEVER APPROACH THE COURT SELECTS, THE STATUTE REQUIRES
CONSISTENCY-- I.E., THE STATUTE REQUIRES THAT THE ACTIVITIES THAT
PRODUCE INCOME BE ILLEGAL BEFORE THE RECEIPT OF THE INCOME IS DEEMED TO
VIOLATE THE LAW. 

I AGREE WITH THE COURT THAT DEFERENCE MUST BE PAID TO THE EXPERTISE
OF THE COMPTROLLER, BUT IN PROPOSING THAT SEC. 92 BE ADDED TO THE
ALREADY EXISTING BANKING LAWS, COMPTROLLER WILLIAMS HIMSELF NOTED THAT
"(IT IS CERTAINLY CLEAR THAT THE COMPTROLLER OF THE CURRENCY HAS NO
RIGHT TO AUTHORIZE OR PERMIT A NATIONAL BANK TO EXERCISE POWERS NOT
CONFERRED UPON IT BY LAW."  LETTER OF JUNE 8, 1916, SUPRA. 

SENATOR OWEN, WHO SHEPHERDED THE 1916 LEGISLATION THROUGH THE
SENATE, NOTED AT ONE POINT THAT SEC. 92 IS NOT A VERY IMPORTANT PART OF
THE STATUTE.  53 CONG.REC.  11001.  PERHAPS, IT IS THEREFORE
UNIMPORTANT WHETHER OR NOT THE RESPONDENTS HAVE TECHNICALLY VIOLATED
IT.  WHETHER OR NOT THE COMPTROLLER HAS PROPERLY PERMITTED SUCH
ACTIVITIES TO TAKE PLACE MAY ALSO BE OF NO GREAT MOMENT. 

WHAT IS CRITICAL TO A CORRECT DISPOSITION OF THIS CASE, IN MY VIEW,
IS THAT IF RESPONDENTS' ACTIVITIES ARE NOT ILLEGAL, THERE IS NO REASON
THAT RECEIPT OF THE INCOME GENERATED FROM THEN SHOULD BE ILLEGAL.  IT
SHOULD BE POINTED OUT THAT THE THEORY THAT RECEIPT OF SAID INCOME WOULD
BE ILLEGAL WAS FIRST PROFFERED BY RESPONDENTS' COUNSEL.  THIS THEORY IS
CERTAINLY SELF-SERVING IN THE SENSE THAT IT PROVIDES WHAT THE COURT
REGARDS AS THE DISPOSITIVE FACTOR IN THIS CASE WITHOUT HINDERING THE
ACTIVITIES OF THE HOLDING COMPANY IN ANY WAY. 

THE COURT SUGGESTS THAT THE COMMISSIONER HAS NEVER RELIED ON THE
THEORY OF THE CASE EXPRESSED IN THIS OPINION.  ON THE CONTRARY, THE
COMMISSIONER ARGUED IN HIS BRIEF (P. 13) AS FOLLOWS: 

"THE COMMISSIONER'S ALLOCATION DOES NOT FORCE RESPONDENTS TO VIOLATE
THE FEDERAL BANKING LAW.  IT WAS THEY, NOT THE COMMISSIONER, WHO CHOSE
TO SOLICIT AND SELL CREDIT LIFE INSURANCE AT A RATE SET AT A
SUFFICIENTLY HIGH LEVEL TO PERMIT THE PAYMENT OF COMMISSIONS.  IF THEIR
ACTIVITIES DID NOT VIOLATE THE BANKING LAW, THE COMMISSIONER'S
ALLOCATION WILL NOT, OF ITSELF, CONSTITUTE A VIOLATION ON THEIR PART. 
AND, SURELY, THE PAYMENT OF TAXES WOULD NOT BE AN ILLEGAL ACT." 

BOTH SIDES DEALT WITH THIS POINT IN ORAL ARGUMENT.  TR. OF ORAL ARG.
14-18, 30, 40. 

THIS IS THE NUB OF THE CASE.  WHAT IS THERE IN THE LEGISLATIVE
HISTORY OR THE PURPOSE OF SEC. 92 THAT REQUIRES THAT WE TREAT THE
ACTIVITIES AS LEGAL, BUT THE RECEIPT OF THE INCOME THEY GENERATE AS
ILLEGAL? 

/2/  WHILE THE PREMIUMS FROM THE INSURANCE POLICIES WERE NOT PAID
DIRECTLY TO THE PARENT, THERE CAN BE NO DOUBT THAT THE PARENT BENEFITED
FROM THE FINANCIAL SUCCESS OF ITS SUBSIDIARIES. 

/3/  WE KNOW THAT NONTAX STATUTES DO NOT NORMALLY DETERMINE THE TAX
CONSEQUENCES OF A PARTICULAR TRANSACTION.  THERE IS NO INHERENT
INCONSISTENCY IN READING THE BANKING LEGISLATION AS MAKING THE RECEIPT
OF INSURANCE PREMIUMS ILLEGAL, AND, AT THE SAME TIME, READING THE
INTERNAL REVENUE CODE AS ALLOWING THE COMMISSIONER TO ALLOCATE THE
INCOME FROM THE SALE OF INSURANCE POLICIES TO THE PARTY ACTUALLY
EARNING IT, SO LONG AS THE INCOME IS RECEIVED BY THE CORPORATION
CONTROLLING THAT PARTY. 

MR. JUSTICE BLACKMUN, WITH WHOM MR. JUSTICE WHITE JOINS,
DISSENTING. 

AS I READ THE COURT'S OPINION, I GAIN THE IMPRESSION THAT IT CHOOSES
TO LINK LEGALITY WITH TAXABILITY OR, TO PUT IT BETTER OPPOSITELY, THAT
IT TIES ILLEGALITY TO RECEIVE WITH INABILITY TO TAX.  I FIND IN THE
INTERNAL REVENUE CODE NO AUTHORITY FOR THE CONCOCTION OF A RESTRICTIVE
CONNECTION OF THAT KIND.  BECAUSE I THINK THAT THE COMMISSIONER'S
ALLOCATION OF INCOME HERE, UNDER THE AUSPICES OF SEC. 482 OF THE 1954
CODE, AND IN THE LIGHT OF THE ESTABLISHED FACTS, WAS PROPER, I
DISSENT. 

1.  SECTION 482 /1/  SURELY CONTEMPLATES TAXATION OF INCOME WITHOUT
FORMAL RECEIPT OF THAT INCOME.  THAT, INDEED, IS THE SCOPE AND PURPORT
OF THE STATUTE.  IT IS DIRECTED AT INCOME DISTORTION BY A CONTROLLING
INTEREST AMONG TWO OR MORE OF THE CONTROLLED ENTITIES.  I, THEREFORE,
AM NOT CONVINCED THAT THE FACT THE INCOME IN QUESTION HERE DID NOT FLOW
THROUGH THE BANKS AT ANY TIME-- BECAUSE IT WAS DEEMED PROSCRIBED BY THE
1916 ACT (IF THE PERTINENT PORTION THEREOF, 39 STAT. 753, IS STILL IN
EFFECT, A PROPOSITION WHICH MAY NOT BE FREE FROM DOUBT), /2/  AND
BECAUSE THE CONTROLLING INTEREST ROUTED IT ELSEWHERE-- SERVES, IN AND
OF ITSELF, TO DENY THE EFFICACY OF THE STATUTE. 

2.  SECTION 482 HAS A DOUBLE PURPOSE AND A DOUBLE TARGET.  IT
AUTHORIZES THE SECRETARY OR HIS DELEGATE, THAT IS, THE COMMISSIONER, TO
ALLOCATE WHENEVER HE DETERMINES IT NECESSARY SO TO DO IN ORDER (A) "TO
PREVENT EVASION OF TAXES" OR (B) "CLEARLY TO REFLECT THE INCOME OF ANY"
OF THE CONTROLLED ENTITIES.  THE USE OF THE STATUTE, THEREFORE, IS NOT
RESTRICTED TO THE INTENTION TAX EVASION.  NO EVASION OF TAX, IN THE
CRIMINAL SENSE, BY THESE BANKS IS SPECIFICALLY SUGGESTED OR AT ISSUE
HERE.  AND I DO NOT SUBSCRIBE TO MY BROTHER MARSHALL'S INTIMATION THAT
WHAT THE BANKS WERE DOING WAS OTHERWISE ILLEGAL.  THE SECOND THING
OTHER THAN TAX EVASION OR ILLEGALITY.  IT IS CONCERNED WITH THE PROPER
REFLECTION OF INCOME (OR DEDUCTIONS, CREDITS, OR ALLOWANCES) SO AS TO
PLACE THE CONTROLLED TAXPAYER ON A TAX PARITY WITH THE UNCONTROLLED
TAXPAYER.  IT IS DESIGNED TO PRODUCE FOR TAX PURPOSES, AND TO
RECOGNIZE, ECONOMIC REALITIES AND TO HAVE THE TAX CONSEQUENCES FOLLOW
THOSE REALITIES AND NOT SOME STRUCTURED NON-REALITY.  THIS IS THE
ASPECT OF THE STATUTE WITH WHICH THE COMMISSIONER AND THESE RESPONDENTS
ARE HERE CONCERNED.  THUS, LEGALITY AND ILLEGALITY SEEM TO ME TO BE
BESIDE THE POINT. 

3.  FROM THIS IT FOLLOWS THAT THE COURT'S REPETITIVE EMPHASIS ON THE
MISSING SEC. 92 AND THE INABILITY OF THESE BANKS LEGALLY TO RECEIVE THE
INSURANCE COMMISSIONS GIVE UNDUE EMPHASIS TO THE FIRST ALTERNATIVE OF
SEC. 482, AND SEEM ALMOST WHOLLY TO IGNORE THE SECOND.     4.  THE
PURPOSE OF THE CONTROLLING INTEREST IN STRUCTURING THE SEVERAL ENTITIES
IT CONTROLS IS APPARENT AND CANNOT BE CONCEALED.  THE BANKS WERE WHOLLY
OWNED SUBSIDIARIES OF HOLDING COMPANY.  THE TAX COURT FOUND-- AND THE
RESPONDENTS CONCEDE /3/  -- THAT ONE OF THE PURPOSES OF THE BANKS'
ARRANGING FOR BORROWERS' CREDIT LIFE INSURANCE /4/  WAS "TO PROVIDE AN
ADDITIONAL SOURCE OF INCOME-- PART OF THE PREMIUMS FROM THE INSURANCE--
TO HOLDING COMPANY OR ITS SUBSIDIARIES."  T.C. MEMO 1967-256, P. 67
1453.  FOR ME, THAT MEANS TO PROVIDE AN ADDITIONAL SOURCE OF INCOME FOR
THE GROUP IRRESPECTIVE OF THE PARTICULAR POCKET INTO WHICH THAT INCOME
MIGHT INITIALLY BE ROUTED. 

5.  WHAT, THEN, HAPPENED?  THE CHRONOLOGY IS REVEALING: 

(A) INITIALLY, THAT IS, UNTIL 1954, THE BANKS SOLICITED THE
INSURANCE CHARGED THE PREMIUM, AND FORWARDED IT TO MANAGEMENT COMPANY. 
THE LATTER IN TURN SENT IT ON TO THE THEN-FAVORED INDEPENDENT INSURANCE
CARRIER.  THAT CARRIER PAID THE RECOGNIZED SALES COMMISSION TO SMITH,
MANAGEMENT COMPANY'S WHOLLY OWNED INSURANCE AGENCY.  /5/ 

(B) IN 1954 THE AMERICAN NATIONAL-SECURITY LIFE ARRANGEMENT APPEARED
ON THE SCENE.  THIS WAS PROMPTED BY THE BLOSSOMING OF THE CREDIT
INSURANCE BUSINESS AS A PROFITABLE UNDERTAKING.  OBVIOUSLY, IT WAS A
MATTER OF CONCERN TO ESTABLISHED AND INDEPENDENT INSURANCE COMPANIES
WHEN THEY CAME TO REALIZE THAT LENDING INSTITUTIONS WERE IN A POSITION
TO FORM THEIR OWN INSURANCE AFFILIATES TO TAP AND DRAIN AWAY PROFITS
THAT THE INDEPENDENTS THERETOFORE HAD RECEIVED WITHOUT HINDRANCE. 
SECURITY LIFE WAS JUST SUCH AN EMERGING INSURANCE AFFILIATE OF HOLDING
COMPANY AND OF MANAGEMENT COMPANY.  BUT AMERICAN NATIONAL, BY ITS
PROPOSAL TO MANAGEMENT COMPANY, AS WELL AS TO OTHER FINANCIAL
INSTITUTIONS, SALVAGED 15% OF THE PREMIUM DOLLAR IN RETURN FOR ACTURIAL
AND ACCOUNTING SERVICES.  SECURITY LIFE NEVER DID DEVELOP INTO A FULL
LINE INSURANCE COMPANY; IT REMAINED ESSENTIALLY A RE-INSURER AND YET IT
ACCOMPLISHED THE PURPOSE FOR WHICH IT WAS GIVEN LIFE.  NOW NO SALES
COMMISSIONS NEEDED TO BE PAID.  IN FACT, NONE WERE PAID; THEY JUST
DISAPPEARED, AND THAT ERSTWHILE COST REMAINED AS PROFIT IN SECURITY
LIFE.  BUT THE BANKS, AS BEFORE, SOLICITED THEIR BORROWING CUSTOMERS TO
PURCHASE CREDIT LIFE INSURANCE. 

(C) THE LIFE INSURANCE COMPANY TAX ACT FOR 1955 WAS ENACTED, 70
STAT. 36, FOLLOWED BY THE LIFE INSURANCE COMPANY INCOME TAX ACT OF
1959, 73 STAT. 112.  THESE STATUTES SERVED TO ACCORD PREFERENTIAL TAX
TREATMENT-- AS COMPARED TO ORDINARY CORPORATIONS-- TO LIFE INSURANCE
COMPANIES.  SEE UNITED STATES V. ATLAS LIFE INS. CO., 381 U.S. 233
(1965).  THIS HAPPILY COINCIDED, OF COURSE, WITH SECURITY LIFE'S
DEVELOPMENT. 

6.  ONLY THE BANKS WERE THE RESPONSIBLE FORCE BEHIND THE PREMIUM
INCOME.  NO ONE ELSE WAS.  CERTAINLY AMERICAN NATIONAL WAS NOT. 
CERTAINLY SECURITY LIFE WAS NOT.  SMITH WAS OUT OF THE PICTURE.  AND IF
IT CAN BE SAID THAT MANAGEMENT COMPANY OR HOLDING COMPANY CONTRIBUTED A
PART, THEY DID SO ONLY SECONDARILY.  IT WAS THE PARTICIPATING BANK THAT
EXPLAINED TO THE BORROWER THE FUNCTION AND AVAILABILITY OF THE
INSURANCE; THAT GAVE THE CUSTOMER THE APPLICATION FORM; THAT EXAMINED
THE APPLICATION; THAT PREPARED THE CERTIFICATE OF INSURANCE; THAT
COLLECTED THE PREMIUM OR ADDED IT TO THE LOAN; AND THAT SENT THE THAT
THUS OFFERED AND SOLD ON BEHALF OF A LIFE INSURANCE COMPANY UNDER
COMMON CONTROL WITH THE BANK.  IT WAS THE PARTICIPATING BANK, IN SHORT,
THAT DID WHAT WAS NECESSARY, AND ALL THAT WAS NECESSARY, TO SELL THE
INSURANCE.  CLEARLY, SERVICES WERE RENDERED BY THAT BANK ON BEHALF OF
ITS COMMONLY CONTROLLED AFFILIATE.  JUST AS CLEARLY, THOSE SERVICES
WOULD HAVE BEEN COMPENSATED HAD THE CORPORATIONS BEEN DEALING WITH EACH
OTHER AT ARM'S LENGTH. 

7.  IT IS NO ANSWER TO SAY THAT GENERATION OF INCOME DOES NOT
NECESSARILY LEAD TO TAXATION OF THE GENERATOR; HERE THE EARNINGS
THEMSELVES STAYED WITHIN THE CORPORATE STRUCTURE DOMINATED BY HOLDING
COMPANY, AND DID NOT PASS ELSEWHERE WITH CONSEQUENT TAX IMPACT
ELSEWHERE.  I DO NOT SO EASILY DIFFERENTIATE, AS DOES THE COURT, ANTE,
AT 401 N. 11, BETWEEN REFERRAL OUTSIDE THE AFFILIATED STRUCTURE AND
REFERRAL CONVENIENTLY WITHIN THAT STRUCTURE TO A RE-INSURANCE COMPANY
THAT COULD BE TAXED ON THE PREMIUM INCOME (UNREDUCED BY COMMISSIONS) AT
ADVANTAGEOUS TAX RATES. 

8.  THAT THE SELLING EFFORT OF THE BANKS SEEMS COMPARATIVELY MINIMAL
AND THAT THE PROCESSING COST SEEMS COMPARATIVELY NEGLIGIBLE ARE, I
BELIEVE, BESIDE THE POINT AND QUITE IRRELEVANT.  NO ONE ELSE DEVOTED
EFFORT OR INCURRED COST OF ANY SIGNIFICANCE WHATSOEVER.  TAXABILITY HAS
NEVER DEPENDED ON APPROXIMATING EXPENSES TO RECEIPTS; IN FACT, THE LESS
THE COST, THE GREATER THE NET INCOME AND THE GREATER THE TAX BURDEN. 

9.  NEITHER IS IT AN ANSWER TO SAY THAT BEFORE THE ORGANIZATION OF
SECURITY LIFE THE BANKS DID NOT RECEIVE INCOME FROM CREDIT INSURANCE
PREMIUMS AND THAT, THEREFORE, THE EMERGENCY OF SECURITY LIFE DID NOT
CHANGE THE SITUATION SO FAR AS THE BANKS WERE CONCERNED.  FOR ME, IT
VERY MUCH CHANGED THE SITUATION, FOR THE CONTROLLED STRUCTURE TOOK OVER
THE INSURANCE BUSINESS AND THE PREMIUMS THENCEFORTH WERE NESTLED WITHIN
THAT STRUCTURE. 

10.  TAXABILITY, DESPITE NONRECEIPT, IS COMMON IN OUR TAX LAW.  IT
IS PRESENT IN A VARIETY OF CONTEXTS.  FOR EXAMPLE, ONE HAS BEEN HELD
TAXABLE, UNDER THE APPLICABLE STATUTE'S GENERAL DEFINITION OF GROSS
INCOME, FOR INCOME OR EARNINGS ASSIGNED TO ANOTHER AND NEVER RECEIVED;
/6/  FOR THE INCOME FROM BOND COUPONS, MATURING IN THE FUTURE, ASSIGNED
TO ANOTHER AND NEVER RECEIVED; /7/  FOR DIVIDENDS PAID TO THE
SHAREHOLDERS OF A TRANSFEROR CLAUSE; /8/  FOR ANOTHER'S INCOME FROM A
SHORT-TERM TRUST /9/  (UNTIL SEC. 673, WITH ITS 10-YEAR MEASURE, CAME
INTO THE TAX STRUCTURE WITH THE 1954 CODE); FOR THE EMPLOYER'S PAYMENT
OF INCOME TAXES ON HIS EMPLOYEES' COMPENSATION; /10/  AND FOR AN
IRREVOCABLE TRUST'S INCOME USED TO PAY INSURANCE PREMIUMS ON THE
SETTLOR'S LIFE, /11/  OR, IN THE ABSENCE OF PARTICULAR STATE LAW
PROVISIONS, DISTRIBUTED TO A DIVORCED WIFE IN LIEU OF ALIMONY /12/
(UNTIL SEC. 215 CAME INTO THE CODE WITH THE REVENUE ACT OF 1942, 56
STAT. 817). 

11.  IN THE AREA OF FEDERAL ESTATE TAXATION AN OBVIOUS PARALLEL IS
FOUND IN THE MANY INSTANCES OF INCLUDABILITY IN THE DECEDENT'S GROSS
ESTATE OF PROPERTY NOT OWNED OR POSSESSED BY THE DECEDENT AT HIS
DEATH.  THE CODE ITSELF PROVIDES FOR THE INCLUSION OF TRANSFERS
THERETOFORE EFFECTIVELY MADE, BUT IN CONTEMPLATION OF DEATH, 26 U.S.C.
2035; OF A VARIETY OF INTER VIVOS IRREVOCABLE TRANSFERS IN TRUST, 26
U.S.C. 2036-2038; AND OF JOINT INTERESTS, 26 U.S.C. 2040, IN ALL OF
WHICH SITUATIONS THE OWNERSHIP INTEREST AT DEATH WAS NONEXISTENT OR
LESS THAN FULL. 

12.  THIS DEMONSTRATES FOR ME THAT THERE HAVE BEEN AND ARE MANY
EXAMPLES OF TAXATION OF INCOME WITHOUT THAT "COMPLETE DOMINION" OVER IT
THAT THE COURT NOW FINDS SO NECESSARY.  THE QUOTATION, CITED BY THE
COURT, FROM MR. JUSTICE HOLMES' OPINION IN CORLISS V. BOWERS, 281 U.S.
376, 378 (1930), CONSISTS OF LANGUAGE, AS THE COURT WOULD MAKE IT OUT
TO BE, THAT SUPPORTED THE NONTAXATION OF INCOME.  THE JUSTICE'S POSTURE
- AND THE COURT'S-- IN THAT CASE SURELY LOOKS AS MUCH, AND PERHAPS
MORE, TO INCLUDABILITY HERE THAN IT DOES TO EXCLUDABILITY.  /13/ 

13.  THE COURT SHRINKS FROM EXTENDING THE POSSIBILITY OF TAXATION
WITHOUT-RECEIPT TO THE SITUATION WHERE THE TAXPAYER IS "PROHIBITED FROM
RECEIVING" THE INCOME BY ANOTHER STATUTE.  IT STATES THAT NO DECISION
OF THE COURT HAS AS YET GONE THAT FAR.  IT IS EQUALLY TRUE THAT NO
DECISION OF THE COURT HAS REFRAINED FROM GOING THAT FAR. 

THE SEVENTH CIRCUIT HAS NOT BEEN CONCERNED WITH THE EXISTENCE OF A
PROHIBITORY REGULATING STATUTE, LOCAL FINANCE CORP. V. COMMISSIONER,
407 F.2D 629 (1969), CERT. DENIED, 369 U.S. 956, AND THIS COURT SHOULD
NOT BE.  THE CONGRESS, IN ENACTING THE LIFE INSURANCE COMPANY TAX ACT
FOR 1955, WAS OF THE OPINION THAT SEC. 482 WAS AVAILABLE TO THE
COMMISSIONER WITH RESPECT TO INSURANCE COMPANIES THAT ARE CAPTIVES OF
"FINANCE COMPANIES."  H.R. REP. NO. 1098, 84TH CONG., 1ST SESS., S.
REP. NO. 1571, 84TH CONG., 2D SESS., 8.  /14/ 

14.  THE COURT'S RELUCTANCE IS REMINISCENT OF THE "CLAIM OF RIGHT"
DOCTRINE, WHICH FOUND EXPRESSION IN THE UNFORTUNATE AND SHORT-LIVED (15
YEARS) DECISION IN COMMISSIONER V. WILCOX, 327 U.S. 404 (1946), TO THE
EFFECT THAT EMBEZZLER WILCOX, OF COURSE, STOOD IN SHARP CONTRAST TO
RUTKIN V. UNITED STATES, 343 U.S. 130 (1952), WHERE MONEY OBTAINED BY
EXTORTION WAS HELD TO BE TAXABLE INCOME TO THE EXTORTIONER; IT WAS
OVERRULED, AT LAST, IN JAMES V. UNITED STATES, 366 U.S. 213 (1961).  IN
WILCOX, AS HERE, THE COURT WRESTLED WITH THE CONCEPT AND IMAGINARY
BARRIER OF ILLEGALITY, WAS IMPRESSED BY IT, AND, AS IN THIS CASE,
CONCLUDED THAT ILLEGALITY AND TAXABIITY DID NOT MIX AND COULD NOT BE
LINKED.  THAT DOCTRINE ENCOUNTERED RESISTANCE IN RUTKIN AND IN JAMES,
AND WAS RIGHTLY RENDERED AN ABERRATION BY THOSE LATER DECISIONS. 

15.  I DOUBT IF THERE IS MUCH CONFORT FOR THE COURT IN L. E. SHUNK
LATEX PRODUCTS, INC., 18 T.C. 940 (1952), FOR THERE THE SIGNIFICANT
FACT WAS THAT THE TAXPAYER COULD NOT HAVE RAISED ITS PRICE EVEN TO A
NONCONTROLLED DISTRIBUTOR. 

IN CONCLUSION, I NOTE THAT THE COURT OF APPEALS REMANDED MANAGEMENT
COMPANY'S CASE TO THE TAX COURT FOR CONSIDERATION OF THE SEC. 482
ALLOCATION, ALTERNATIVELY PROPOSED, TO THAT CORPORATION.  WITH THIS I
MUST BE CONTENT.  AT LEAST MANAGEMENT COMPANY IS NOT A NATIONAL BANK,
AND THE BARRIER THAT THE COURT HAS FOUND IN THE MISSING SEC. 92
SUPPOSEDLY DOES NOT PROVIDE A PROTECTIVE COATING FOR MANAGEMENT COMPANY
OR, FOR THAT MATTER, FOR HOLDING COMPANY. 

AND SO IT IS.  THE RESULT OF TODAY'S DECISION MAY NOT BE TOO
IMPORTANT, FOR IT AFFECTS ONLY A FEW TAXPAYERS.  IT SEEMS TO ME,
HOWEVER, THAT IT EFFECTIVELY DULLS ONE EDGE OF WHAT HAS BEEN A SHARP
TWO-EDGED TOOL FASHIONED AND BESTOWED BY THE CONGRESS UPON THE INTERNAL
REVENUE SERVICE FOR THE EFFECTIVE ENFORCEMENT OF OUR FEDERAL TAX LAWS. 

/1/  SECTION 482 IS NOT NEW.  IT APPEARED AS SEC. 45 OF THE REVENUE
ACT OF 1928, 45 STAT. 806, AND HAS PREDECESSORS IN SEC. 240(F) OF THE
REVENUE ACT OF 1926, 44 STAT. 46, AND IN SEC. 240(D) OF THE REVENUE ACT
OF 1924, 43 STAT. 288. 

/2/  THE REVISERS OF THE U.S.C. IN 1952 OMITTED THE SECTION BECAUSE
OF THE POSSIBILITY OF ITS HAVING BEEN REPEALED BY ITS OMISSION FROM THE
AMENDMENT AND RE-ENACTMENT IN 1918 OF SEC. 5202 OF THE REVISED STATUTES
BY SEC. 20 OF THE WAR FINANCE CORPORATION ACT, 40 STAT. 512.  COMPARE
ADMINISTRATIVE RULING NO. 7110 OF THE COMPTROLLER OF THE CURRENCY WITH
THE COMPTROLLER'S CURRENT REGULATIONS, 12 CFR 2.1-2.5.  SEE SAXON V.
GEORGIA ASSOCIATION OF INDEPENDENT INSURANCE AGENTS, INC., 399 F.2D
1010 (CA5 1968); COMMISSIONER V. MORRIS TRUST, 367 F.2D 794, 795 (CA4
1966); HACKLEY, OUR BAFFLING BANKING SYSTEM, PT. 2, 52 VA.L.REV.  771,
777-779 (1966).  UNITED STATES CODE ANNOTATED CARRIES THE PROVISION AS
SEC. 92 OF ITS TITLE 12. 

/3/  BRIEF FOR RESPONDENTS 2. 

/4/  I USE THIS AND OTHER TERMS AS THEY HAVE BEEN DEFINED IN THE
COURT'S OPINION. 

/5/  DESPITE THIS PAYMENT TO SMITH, IT WAS NOT SMITH, BUT MANAGEMENT
COMPANY, THAT REPORTED THE COMMISSIONS AS TAXABLE INCOME.  THIS REVEALS
THE FLUIDITY OF CONTROL OF THE STRUCTURE.  OF COURSE, THE FACT THAT THE
COMMISSIONER DID NOT ALLOCATE THE PREMIUMS TO THE BANKS DURING THIS
PERIOD IS OF SMALL, IF ANY, SIGNIFICANCE, FOR, AS THE COURT POINTS OUT,
ANTE, AT 397-398, N. 2, THE THEN TAX RATE FOR EACH OF THE CORPORATE
ENTITIES WAS LIKELY THE SAME.  THE GOVERNMENT THUS WOULD LOSE NOTHING
BY NOT ALLOCATING. 

/6/  HARRISON V. SCHAFFNER, 312 U.S. 579 (1941); HELVERING V.
EUBANK, 311 U.S. 122 (1940); BURNET V. LEININGER, 285 U.S. 136 (1932);
LUCAS V. EARL, 281 U.S. 111 (1930).  CF. HOEPER V. TAX COMM'N, 284 U.S.
206 (1931); BLAIR V. COMMISSIONER, 300 U.S. 5 (1937).  SEE COMMISSIONER
V. SUNNEN, 333 U.S. 591, 604-610 (1948); UNITED STATES V. MITCHELL, 403
U.S. 190 (1971). 

/7/  HELVERING V. HORST, 311 U.S. 112 (1940). 

/8/  UNITED STATES V. JOLIET & CHICAGO R. CO., 315 U.S. 44 (1942). 

/9/  HELVERING V. CLIFFORD, 309 U.S. 331 (1940). 

/10/  OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716 (1929). 

/11/  BURNET V. WELLS, 289 U.S. 670 (1933). 

/12/  DOUGLAS V. WILLCUTS, 296 U.S. 1 (1935); HELVERING V. FITCH,
309 U.S. 149 (1940); SEE COMMISSIONER V. LESTER, 366 U.S. 299 (1961). 

/13/  " . . . BUT THE NET INCOME FOR 1924 WAS PAID OVER TO THE
PETITIONER'S WIFE AND THE PETITIONER'S ARGUMENT IS THAT HOWEVER IT
MIGHT HAVE BEEN IN DIFFERENT CIRCUMSTANCES THE INCOME NEVER WAS HIS AND
HE CANNOT BE TAXED FOR IT.  THE LEGAL ESTATE WAS IN THE TRUSTEE AND THE
EQUITABLE INTEREST IN THE WIFE. 

"BUT TAXATION IS NOT SO MUCH CONCERNED WITH THE REFINEMENTS OF TITLE
AS IT IS WITH ACTUAL COMMAND OVER THE PROPERTY TAXED-- THE ACTUAL
BENEFIT FOR WHICH THE TAX IS PAID . . . . "  281 U.S.,AT 377-378. 

IN ANOTHER CASE MR. JUSTICE HOLMES SAID: 

"THERE IS NO DOUBT THAT THE STATUTE COULD TAX SALARIES TO THOSE WHO
EARNED THEM AND PROVIDE THAT THE TAX COULD NOT BE ESCAPED BY
ANTICIPATORY ARRANGEMENTS AND CONTRACTS HOWEVER SKILLFULLY DEVISED TO
PREVENT THE SALARY WHEN PAID FROM VESTING EVEN FOR A SECOND IN THE MAN
WHO EARNED IT. . . . "  LUCAS V. EARL, 281 U.S. 111, 114-115 (1930). 

/14/  "THERE IS A POTENTIAL SITUATION IN THE CASE OF THE SO-CALLED
CAPTIVE INSURANCE COMPANIES.  IT MAY BE POSSIBLE FOR A FINANCE COMPANY,
FOR EXAMPLE, TO ESTABLISH A SUBSIDIARY LIFE INSURANCE COMPANY THAT WILL
ISSUE LIFE INSURANCE POLICIES IN CONNECTION WITH THE BUSINESS OF THE
PARENT.  IF THE SUBSIDIARY CHARGES EXCESSIVE PREMIUM ON THIS BUSINESS,
A PORTION OF THE INCOME OF THE PARENT COMPANY CAN BE DIVERTED TO THE
LIFE INSURANCE COMPANY.  IT IS BELIEVED THAT SECTION 482 OF THE
INTERNAL REVENUE CODE OF 1954 (RELATING TO ALLOCATION OF INCOME AND
DEDUCTIONS AMONG RELATED TAXPAYERS) PROVIDES THE SECRETARY OF THE
TREASURY AMPLE REGULATIVE AUTHORITY TO DEAL WITH THIS PROBLEM." 
ERNEST J. BROWN ARUGED THE CAUSE FOR PETITIONER.  ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL UGAST,
MATTHEW J. ZINN, AND BENNET N. HOLLANDER. 

STEPHEN H. ANDERSON ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS S. J. QUINNEY. 

ERNEST GETZ FILED A BRIEF FOR BUD KOUTS CHEVROLET CO. ET AL. AS
AMICI CURIAE URGING AFFIRMANCE. 
..END :





















SCHNEBLE V. FLORIDA, 405 U.S. 427 


       SCHNEBLE V. FLORIDA

        CERTIORARI TO THE SUPREME COURT OF FLORIDA

        NO. 68-5009.  ARGUED JANUARY 17-18, 1972-- DECIDED MARCH
21,

           1972 


PETITIONER WAS FOUND GUILTY OF MURDER FOLLOWING A JURY TRIAL IN WHICH
POLICE OFFICERS TESTIFIED AS TO THE DETAILED CONFESSION THAT HE HAD
GIVEN TO THEM AND IN WHICH ONE OFFICER RELATED A STATEMENT MADE TO HIM
BY PETITIONER'S CODEFENDANT, WHO DID NOT TESTIFY, WHICH TENDED TO
UNDERMINE PETITIONER'S INITIAL (BUT LATER ABANDONED) VERSION AND TO
CORROBORATE CERTAIN DETAILS OF PETITIONER'S CONFESSION.  THE SUPREME
COURT OF FLORIDA AFFIRMED.  PETITIONER CLAIMS THAT THE ADMISSION INTO
EVIDENCE OF HIS CODEFENDANT'S STATEMENT DEPRIVED HIM OF HIS RIGHT TO
CONFRONTATION IN VIOLATION OF BRUTON V. UNITED STATES, 391 U.S. 123. 
HELD:  ANY VIOLATION OF BRUTON THAT MIGHT HAVE OCCURRED WAS HARMLESS
BEYOND A REASONABLE DOUBT IN VIEW OF THE OVERWHELMING EVIDENCE OF
PETITIONER'S GUILT AS MANIFESTED BY HIS CONFESSION, WHICH COMPLETELY
COMPORTED WITH THE OBJECTIVE EVIDENCE, AND THE COMPARATIVELY
INSIGNIFICANT EFFECT OF THE CODEFENDANT'S ADMISSION.  PP. 429-432. 

215 SO.2D 611, AFFIRMED. 

REHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, BLACKMUN, AND POWELL, JJ., JOINED.  MARSHALL,
J., FILED A DISSENTING OPINION IN WHICH DOUGLAS AND BRENNAN, JJ.,
JOINED, POST, P. 432. 

MR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT. 

PETITIONER SCHNEBLE AND HIS CODEFENDANT SNELL WERE TRIED JOINTLY IN
A FLORIDA STATE COURT FOR MURDER.  AT THE TRIAL NEITHER DEFENDANT TOOK
THE STAND, BUT POLICE WITNESSES TESTIFIED TO CERTAIN ADMISSIONS MADE BY
EACH DEFENDANT IMPLICATING BOTH OF THEM IN THE MURDER.  BOTH DEFENDANTS
WERE CONVICTED, AND THE FLORIDA SUPREME COURT AFFIRMED.  THIS COURT
VACATED AND REMANDED THE CASE FOR FURTHER CONSIDERATION IN THE LIGHT OF
BRUTON V. UNITED STATES, 391 U.S. 123 (1968).  SCHNEBLE V. FLORIDA, 392
U.S. 298 (1968).  UPON REMAND, THE SUPREME COURT OF FLORIDA REVERSED
SNELL'S CONVICTION, FINDING THAT IT HAD BEEN OBTAINED IN VIOLATION OF
BRUTON, BUT AFFIRMED PETITIONER'S CONVICTION.  WE AGAIN GRANTED
CERTIORARI, LIMITED /1/  TO THE QUESTION OF WHETHER PETITIONER'S
CONVICTION HAD BEEN OBTAINED IN VIOLATION OF THE BRUTON RULE.  IN THE
CIRCUMSTANCES OF THIS CASE, WE FIND THAT ANY VIOLATION OF BRUTON THAT
MAY HAVE OCCURRED AT PETITIONER'S TRIAL WAS HARMLESS BEYOND A
REASONABLE DOUBT.  WE THEREFORE AFFIRM. 

THE STATE'S CASE SHOWED THAT A THREESOME CONSISTING OF PETITIONER,
SNELL, AND THE VICTIM, MRS. MAXINE COLLIER, LEFT NEW ORLEANS IN A
BORROWED AUTOMOBILE EN ROUTE TO FLORIDA.  WHILE THEY WERE TRAVELING
ACROSS THE FLORIDA PANHANDLE, MRS. COLLIER WAS MURDERED, AND HER BODY
PLACED IN THE TRUNK OF THE AUTOMOBILE.  THE BODY WAS THEN TRANSPORTED
IN THE CAR TO THE ENVIRONS OF TAMPA, WHERE IT WAS LEFT BEHIND SOME
BUSHES IN A TRASH DUMP.  PETITIONER AND SNELL THEN CONTINUED THEIR
ODYSSEY SOUTHWARD TO THE FLORIDA KEYS, AND THENCE NORTH ALONG THE EAST
COAST OF FLORIDA.  THEY WERE APPREHENDED FOR UNRELATED OFFENSES IN WEST
PALM BEACH, BUT UPON DISCOVERING BLOOD IN THE TRUNK OF THE CAR POLICE
OFFICERS THERE COMMENCED THE INVESTIGATION THAT ULTIMATELY LED TO THE
CHARGING OF PETITIONER AND SNELL WITH THE MURDER OF MRS. COLLIER. 

THE INVESTIGATING OFFICERS TESTIFIED AT THE TRIAL THAT PETITIONER
INITIALLY, WHILE ADMITTING KNOWLEDGE OF THE MURDER, CLAIMED THAT SNELL
HAD SHOT MRS. COLLIER WHILE PETITIONER WAS AWAY FROM THE CAR TAKING A
WALK.  PETITIONER LATER CONCEDED, HOWEVER, THAT HIS EARLIER STORY WAS
FALSE.  HE ADMITTED TO THE POLICE THAT IT WAS HE WHO HAD STRANGLED MRS.
COLLIER, AND THAT SNELL HAD FINALLY SHOT HER IN THE HEAD AS SHE LAY
DYING.  THE STATE COURT HELD THESE ADMISSIONS OF PETITIONER TO BE
VOLUNTARY AND ADMISSIBLE.  SINCE OUR GRANT OF CERTIORARI HERE WAS
LIMITED TO THE BRUTON ISSUE, OUR TREATMENT OF THAT QUESTION ASSUMES
THAT THESE ADMISSIONS WERE PROPERLY BEFORE THE TRIAL COURT. 

ONE OF THE INVESTIGATING OFFICERS ALSO RELATED AT TRIAL A STATEMENT
MADE TO HIM BY SNELL.  PETITIONER CHALLENGES THIS TESTIMONY AS
VIOLATIVE OF BRUTON, SINCE SNELL DID NOT TAKE THE STAND AND THUS WAS
NOT AVAILABLE FOR CROSS-EXAMINATION.  ACCORDING TO THE TESTIMONY OF
THIS OFFICER, SNELL SAID PETITIONER HAD OCCUPIED THE REAR SEAT OF THE
CAR AND HAD NEVER LEFT SNELL ALONE IN THE CAR WITH MRS. COLLIER DURING
THE TRIP.  WHILE SNELL'S STATEMENT FELL FAR SHORT OF THE TYPE OF
COMPREHENSIVE AND DETAILED CONFESSION MADE BY PETITIONER, IT DID TEND
TO UNDERMINE PETITIONER'S INITIAL (BUT LATER ABANDONED) CLAIM THAT HE
HAD LEFT SNELL ALONE DURING THE TIME AT WHICH THE MURDER OCCURRED. 
SNELL'S STATEMENT ALSO PLACED PETITIONER IN THE POSITION IN THE CAR
FROM WHICH THE VICTIM COULD MORE EASILY HAVE BEEN STRANGLED.  THUS,
PETITIONER CLAIMS, THE INTRODUCTION OF SNELL'S OUT-OF-COURT STATEMENT,
NOT SUBJECT TO EFFECTIVE CROSS-EXAMINATION, DEPRIVED PETITIONER OF HIS
RIGHT OF CONFRONTATION IN VIOLATION OF BRUTON. 

THE COURT HELD IN BRUTON THAT THE ADMISSION OF A CONFESSION OF A
CODEFENDANT WHO DID NOT TAKE THE STAND DEPRIVED THE DEFENDANT OF HIS
RIGHTS UNDER THE SIXTH AMENDMENT CONFRONTATION CLAUSE, WHEN THAT
CONFESSION IMPLICATED THE DEFENDANT.  EVEN WHEN THE JURY IS INSTRUCTED
TO CONSIDER THE CONFESSION ONLY AGAINST THE DECLARANT, THE COURT IN
BRUTON DETERMINED THAT THE DANGER OF MISUSE OF THE CONFESSION BY THE
JURY WAS TOO GREAT TO BE CONSTITUTIONALLY PERMISSIBLE.  BRUTON WAS HELD
TO BE RETROACTIVE IN ROBERTS V. RUSSELL, 392 U.S. 293 (1968), AND THUS
APPLIES TO THE INSTANT CASE EVEN THOUGH IT WAS TRIED MORE THAN TWO
YEARS PRIOR TO BRUTON. 

THE MERE FINDING OF A VIOLATION OF THE BRUTON RULE IN THE COURSE OF
THE TRIAL, HOWEVER, DOES NOT AUTOMATICALLY REQUIRE REVERSAL OF THE
ENSUING CRIMINAL CONVICTION.  IN SOME CASES THE PROPERLY ADMITTED
EVIDENCE OF GUILT IS SO OVERWHELMING, AND THE PREJUDICIAL EFFECT OF THE
CODEFENDANT'S ADMISSION IS SO INSIGNIFICANT BY COMPARISON, THAT IT IS
CLEAR BEYOND A REASONABLE DOUBT THAT THE IMPROPER USE OF THE ADMISSION
WAS HARMLESS ERROR. 

IN HARRINGTON V. CALIFORNIA, 395 U.S. 250 (1969), THE DEFENDANT WAS
TRIED FOR MURDER JOINTLY WITH THREE OTHERS.  AS IN THE INSTANT CASE, HE
ADMITTED BEING AT THE SCENE OF THE CRIME, BUT DENIED COMPLICITY.  ONE
OF HIS CODEFENDANTS, WHO CONFESSED AND IMPLICATED HIM, TOOK THE STAND
AND WAS SUBJECT TO CROSS-EXAMINATION.  THE OTHER TWO CODEFENDANTS,
WHOSE STATEMENTS CORROBORATED DEFENDANT'S PRESENCE AT THE SCENE OF THE
CRIME, DID NOT TAKE THE STAND.  NOTING THE OVERWHELMING EVIDENCE OF
HARRINGTON'S GUILT, AND THE RELATIVELY INSIGNIFICANT PREJUDICIAL IMPACT
OF THESE CODEFENDANTS' STATEMENTS, THE COURT HELD THAT ANY VIOLATION OF
BRUTON THAT HAD OCCURRED WAS HARMLESS ERROR. 

IN THE INSTANT CASE, PETITIONER'S CONFESSION WAS MINUTELY DETAILED
AND COMPLETELY CONSISTENT WITH THE OBJECTIVE EVIDENCE.  HE INFORMED
POLICE OF THE PRECISE LOCATION AT WHICH THEY ULTIMATELY LOCATED THE
BODY, AND GUIDED THEM TO THIS OUT-OF-THE-WAY SPOT.  ALTHOUGH PETITIONER
INITIALLY TRIED TO PUT THE SOLE BLAME ON SNELL, THIS VERSION OF THE
FACTS DID NOT SATISFACTORILY EXPLAIN CERTAIN DEEP ROPE BURNS ON
PETITIONER'S HANDS.  WHEN CONFRONTED WITH THE FACT OF THE ROPE BURNS,
PETITIONER ADMITTED THAT HE AND SNELL HAD PLOTTED TO KILL MRS. COLLIER
IN ORDER TO STEAL HER MONEY AND THE AUTOMOBILE. 

PETITIONER CONFESSED THAT HE HAD STRANGLED MRS. COLLIER WITH A
PLASTIC CORD, AND RECOUNTED THE COMMISSION OF THE CRIME IN MINUTE AND
GRISLY DETAIL CULMINATING IN SNELL'S SHOOTING THE VICTIM IN THE HEAD
BECAUSE SHE STILL SHOWED SIGNS OF LIFE AFTER THE STRANGULATION.  THESE
DETAILS OF PETITIONER'S LATER ACCOUNT OF THE OFFENSE WERE INTERNALLY
CONSISTENT, WERE CORROBORATED BY OTHER OBJECTIVE EVIDENCE, AND WERE NOT
CONTRADICTED BY ANY OTHER EVIDENCE IN THE CASE.  THEY WERE CONSISTENTLY
REITERATED BY PETITIONER ON SEVERAL OCCASIONS AFTER HIS FIRST
EXPOSITION OF THEM. 

NOT ONLY IS THE INDEPENDENT EVIDENCE OF GUILT HERE OVERWHELMING, AS
IN HARRINGTON, BUT THE ALLEGEDLY INADMISSIBLE STATEMENTS OF SNELL AT
MOST TENDED TO CORROBORATE CERTAIN DETAILS OF PETITIONER'S
COMPREHENSIVE CONFESSION.  TURE, UNDER THE JUDGE'S CHARGE, THE JURY
MIGHT HAVE FOUND THE CONFESSION INVOLUNTARY AND THEREFORE
INADMISSIBLE.  BUT THIS ARGUMENT PROVES TOO MUCH; WITHOUT SCHNEBLE'S
CONFESSION AND THE RESULTING DISCOVERY OF THE BODY, THE STATE'S CASE
AGAINST SCHNEBLE WAS VIRTUALLY NONEXISTENT.  THE REMAINING EVIDENCE IN
THE CASE-- THE DISAPPEARANCE OF MRS. COLLIER SOMETIME DURING THE TRIP,
AND SNELL'S STATEMENT THAT SCHNEBLE SAT IN THE BACK SEAT OF THE CAR
DURING THE TRIP AND NEVER LEFT SNELL ALONE WITH MRS. COLLIER-- COULD
NOT BY ITSELF CONFICT SCHNEBLE OF THIS OR ANY OTHER CRIME.  CHARGED AS
THEY WERE BY THE JUDGE THAT THEY MUST BE "SATISFIED BEYOND A REASONABLE
DOUBT" AND "TO A MORAL CERTAINTY" OF SCHNEBLE'S GUILT BEFORE THEY COULD
CONVICT HIM, THE JURORS COULD ON NO RATIONAL HYPOTHESIS HAVE FOUND
SCHNEBLE GUILTY WITHOUT RELIANCE ON HIS CONFESSION.  JUDICIOUS
APPLICATION OF THE HARMLESS-ERROR RULE DOES NOT REQUIRE THAT WE INDULGE
ASSUMPTIONS OF IRRATIONAL JURY BEHAVIOR WHEN A PERFECTLY RATIONAL
EXPLANATION FOR THE JURY'S VERDICT, COMPLETELY CONSISTENT WITH THE
JUDGE'S INSTRUCTIONS, STARES US IN THE FACE.  SEE ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S, 500, 504-505 (1957). 

HAVING CONCLUDED THAT PETITIONER'S CONFESSION WAS CONSIDERED BY THE
JURY, WE MUST DETERMINE ON THE BASIS OF "OUR OWN READING OF THE RECORD
AND ON WHAT SEEMS TO US TO HAVE BEEN THE PROBABLE IMPACT . . . ON THE
MINDS OF AN AVERAGE JURY," HARRINGTON V. CALIFORNIA, SUPRA, AT 254,
WHETHER SNELL'S ADMISSIONS WERE SUFFICIENTLY PREJUDICIAL TO PETITIONER
AS TO REQUIRE REVERSAL.  IN BRUTON, THE COURT POINTED OUT THAT "(A)
DEFENDANT IS ENTITLED TO A FAIR TRIAL BUT NOT A PERFECT ONE."  391
U.S.AT 135, QUOTING LUTWAK V. UNITED STATES, 344 U.S. 604, 619 (1953). 
THUSUNLESS THERE IS A REASONABLE POSSIBILITY THAT THE IMPROPERLY
ADMITTED EVIDENCE CONTRIBUTED TO THE CONVICTION, REVERSAL IS NOT
REQUIRED.  SEE CHAPMAN V. CALIFORNIA, 386 U.S. 18, 24 (1967).  IN THIS
CASE, WE CONCLUDE THAT THE "MINDS OF AN AVERAGE JURY" WOULD NOT HAVE
FOUND THE STATE'S CASE SIGNIFICANTLY LESS PERSUASIVE HAD THE TESTIMONY
AS TO SNELL'S ADMISSIONS BEEN EXCLUDED.  THE ADMISSION INTO EVIDENCE OF
THESE STATEMENTS, THEREFORE, WAS AT MOST HARMLESS ERROR. 

              AFFIRMED. 

/1/  THE QUESTION OF WHETHER SCHNEBLE'S SENTENCE OF DEATH IN THIS
CASE VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENT PROSCRIPTION OF
"CRUEL AND UNUSUAL PUNISHMENT" IS THEREFORE NOT AT ISSUE HERE.  THAT
QUESTION IS CURRENTLY UNDER CONSIDERATION IN AIKENS V. CALIFORNIA, NO.
68-5027, AND COMPANION CASES.  ALL EXECUTIONS IN FLORIDA HAVE BEEN
STAYED BY THE GOVENOR'S EXECUTIVE ORDER UNTIL JULY 1, 1973.  SEE FLA.
EXEC. ORDER NO. 72-8 (FEB. 21, 1972). 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

THIS IS A CAPITAL CASE IN WHICH THE PETITIONER WAS CONVICTED OF
MURDER.  WHEN THE CASE WAS LAST BEFORE US, WE VACATED THE CONVICTION
AND REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED
STATES, 391 U;S. 123 (1968).  SEE SCHNEBLE V. FLORIDA, 392 U.S. 298
(1968).  ON REMAND, THE SUPREME COURT OF FLORIDA REAFFIRMED THE
CONVICTION, HOLDING THAT IT WAS NOT "INCONSISTENT WITH BRUTON."  WHILE
BRUTON ITSELF RECEIVED AN EXTENSIVE FACTUAL ANALYSIS BY THE STATE
SUPREME COURT, LITTLE ATTENTION WAS PAID TO THE FACTS OF THE INSTANT
CASE AND NO REASONS WERE PROFFERED IN SUPPORT OF THE HOLDING THAT
BRUTON WAS NOT VIOLATED.  IN TODAY'S OPINION THE COURT REJECTS THE
FLORIDA SUPREME COURT'S CONCLUSION THAT THIS CASE CAN BE SQUARED WITH
BRUTON AND CONCLUDES THAT BRUTON WAS VIOLATED WHEN THE STATEMENT OF A
NONTESTIFYING CODEFENDANT IMPLICATING PETITIONER IN THE CRIME CHARGED
WAS INTRODUCED AT TRIAL.  YET, THE CONVICTION IS PERMITTED TO STAND
BECAUSE THE BRUTON VIOLATION IS VIEWED AS "HARMLESS ERROR" WITHIN THE
MEANING OF CHAPMAN V. CALIFORNIA, 386 U.S. 18, 24 (1967).  I DISSENT. 

DETERMINING WHETHER OR NOT A CONSTITUTIONAL INFIRMITY AT TRIAL IS
HARMLESS ERROR IS ORDINARILY A DIFFICULT TASK.  THIS CASE IS EASIER
THAN MOST, BECAUSE IT IS IMPOSSIBLE TO READ THE RECORD AND TO CONCLUDE
THAT THE EVIDENCE SO "OVERWHELMINGLY" ESTABLISHES PETITIONER'S GUILT
THAT THE ADMISSION OF THE CODEFENDANT'S STATEMENT MADE NO DIFFERENCE TO
THE OUTCOME. 

THE COURT RELIES ON HARRINGTON V. CALIFORNIA, 395 U.S. 250 (1969),
TO SUPPORT ITS CONCLUSION, BUT THAT CASE IS INAPPOSITE.  IN HARRINGTON,
THE COURT FOUND HARMLESS ERROR WHERE STATEMENTS OF TWO NONTESTIFYING
CODEFENDANTS WERE INTRODUCED AT TRIAL TO DEMONSTRATE HARRINGTON'S
PRESENCE AT THE SCENE OF THE CRIME.  THAT DECISION WAS LIMITED TO A
FACTUAL SETTING IN WHICH THE DEFENDANT ADMITS BEING AT THE SCENE, AND
THE IMPROPERLY ADMITTED STATEMENTS OF THE CODEFENDANTS ARE MERELY
CUMULATIVE EVIDENCE.  I MOST URGENTLY PROTEST THE EXTENSION OF THAT
CASE TO THESE FACTS. 

IT IS TRUE THAT PRIOR TO TRIAL PETITIONER CONFESSED TO MURDERING THE
VICTIM.  BUT, IT IS ALSO TRUE THAT WHEN HE WAS FIRST ARRESTED,
PETITIONER DENIED HIS GUILT AND PLACED THE FULL BLAME ON HIS
CODEFENDANT.  HE ALSO DENIED BEING PRESENT WHEN THE MURDER WAS
COMMITTED.  ONLY AFTER HE WAS SUBJECTED TO A SERIES OF BIZARRE ACTS BY
THE POLICE DESIGNED TO FRIGHTEN HIM INTO MAKING INCRIMINATING
STATEMENTS DID PETITIONER "CONFESS."  THE FULL SPECTRUM OF EVENTS
LEADING UP TO THE CONFESSION IS SET OUT IN DETAIL IN THE FIRST OPINION
OF THE SUPREME COURT OF FLORIDA, 201 SO.2D 881, 884-885 (1967). 

PETITIONER MOVED TO SUPPRESS THE STATEMENTS THAT HE MADE TO THE
POLICE ON THE GROUND THAT THEY WERE THE DIRECT RESULT OF POLICE
COERCION.  RECOGNIZING THAT THE POLICE ACTED IMPROPERLY IN ATTEMPTING
TO OBTAIN A STATEMENT FROM SCHNEBLE, THE FLORIDA SUPREME COURT UPHELD
THE TRIAL COURT'S FINDING THAT THE INCRIMINATING STATEMENTS WERE MADE
IN CIRCUMSTANCES SUFFICIENTLY ATTENUATED FROM THE COERCIVE ACTIVITIES
AS TO REMOVE THE TAINT.  OUR LIMITED GRANT OF CERTIORARI DOES NOT
PERMIT REVIEW OF THIS RULING.  BUT, THE LIMITED NATURE OF THE GRANT
DOES NOT BAR US FROM LOOKING AT THE ENTIRE RECORD IN THE CASE IN ORDER
TO DISPOSE OF THE ONE ISSUE PRESENTED. 

BEFORE THE TRIAL JUDGE PERMITTED THE JURY TO HEAR TESTIMONY
REGARDING PETITIONER'S INCRIMINATING STATEMENTS, HE MADE THE INITIAL
DETERMINATION THAT THOSE STATEMENTS WERE VOLUNTARY AS REQUIRED BY
JACKSON V. DENNO, 378 U.S. 368 (1964).  HE SUBSEQUENTLY INSTRUCTED THE
JURY IN THE FOLLOWING MANNER:

      "SHOULD YOU FIND FROM THE EVIDENCE THAT ANY ALLEGED STATEMENT

  OR CONFESSION AS TO ANY DEFENDANT WAS NOT FREELY AND VOLUNTARILY

  MADE, OR IF YOU HAVE A REASONABLE DOUBT IN THIS REGARD, THEN YOU

  MUST DISREGARD THE SAME, AS WELL AS ANY OTHER ITEM OF EVIDENCE

  THAT MAY HAVE BEEN DISCOVERED BY THE STATE BY REASON OF SUCH

  ALLEGED STATEMENT OF (SIC) CONFESSION."  (TR. 561.) 

WE HAVE NO WAY OF KNOWING WHAT JUDGMENT THE JURY MADE WITH RESPECT
TO THE VOLUNTARINESS OF PETITIONER'S STATEMENTS.  IN MY OPINION, THERE
IS CLEARLY ENOUGH EVIDENCE TO SUPPORT EITHER A FINDING OF VOLUNTARINESS
OR ONE OF COERCION.  SINCE AN ERROR CANNOT BE HARMLESS IF THERE IS A
REASONABLE POSSIBILITY THAT IT CONTRIBUTED TO A FINDING OF GUILT, ALL
REASONABLE INFERENCES THAT MIGHT BE DRAWN FROM THE EVIDENCE MUST BE
DRAWN IN FAVOR OF THE DEFENDANT, SINCE THE JURY MAY VERY WELL HAVE MADE
JUST THESE INFERENCES.  THUS, WE CAN ASSUME THAT THE JURY FOUND
PETITIONER'S INCRIMINATING STATEMENTS TO BE INVOLUNTARY. 

WE MUST ALSO ASSUME THAT THE JURY FOLLOWED THE INSTRUCTIONS OF THE
COURT AND DISREGARDED NOT ONLY THE STATEMENTS THEMSELVES, BUT ALL THE
EVIDENCE "THAT MAY HAVE BEEN DISCOVERED BY THE STATE BY REASON OF SUCH
. . . STATEMENTS) . . . . "  IT IS POSSIBLE THAT THE JURY MAY HAVE
FOUND THE STATEMENTS TO BE INVOLUNTARY AND STILL RELIED ON THEM.  SEE
JACKSON V. DENNO, SUPRA.  BUT, IT IS BY NO MEANS CERTAIN THAT THE JURY
DID NOT METICULOUSLY FOLLOW THE INSTRUCTIONS OF THE TRIAL JUDGE.  SEE
LEGO V. TWOMEY, 404 U.S. 477 (1972).  SINCE EITHER ASSUMPTION MAY BE
MADE, WE MUST AGAIN CHOOSE THE ASSUMPTION FAVORABLE TO THE DEFENDANT IN
ORDER TO INSURE THAT ANY ERROR WAS HARMLESS. 

ASSUMING, THEN, THAT THE JURY COMPLETELY DISREGARDED PETITIONER'S
INCRIMINATING STATEMENTS AND ALL EVIDENCE DERIVED THEREFROM, LITTLE
EVIDENCE REMAINS TO SUPPORT THE VERDICT.  ONLY THE STATEMENT OF THE
CODEFENDANT PLACES PETITIONER AT THE SCENE OF THE CRIME AT THE RELEVANT
TIME.  WITHOUT THIS STATEMENT, IT IS DIFFICULT TO BELIEVE THAT ANYONE
COULD BE CONVINCED OF PETITIONER'S GUILT BEYOND A REASONABLE DOUBT. 

THE COURT ASSERTS, HOWEVER, THAT "WE MUST DETERMINE ON THE BASIS OF
'OUR OWN READING OF THE RECORD AND ON WHAT SEEMS TO US TO HAVE BEEN THE
PROBABLE IMPACT . . . ON THE MINDS OF AN AVERAGE JURY,' . . . WHETHER
SNELL'S (THE CODEFENDANT'S) ADMISSIONS WERE SUFFICIENTLY PREJUDICIAL TO
PETITIONER AS TO REQUIRE REVERSAL."  THE COURT CONCLUDES THAT "THE
'MINDS OF AN AVERAGE JURY' WOULD NOT HAVE FOUND THE STATE'S CASE
SIGNIFICANTLY LESS PERSUASIVE HAD THE TESTIMONY AS TO SNELL'S
ADMISSIONS BEEN EXCLUDED." 

THE MISTAKE THE COURT MAKES IS IN ASSUMING THAT THE JURY ACCEPTED AS
TRUE ALL OF THE OTHER EVIDENCE.  THE CASE TURNS ON THIS ASSUMPTION, AND
AS DEMONSTRATED ABOVE, IT IS CLEARLY ERRONEOUS.  THE JURY WAS GIVEN THE
DUTY OF MAKING AN INDEPENDENT DETERMINATION OF THE ADMISSIBILITY OF
PETITIONER'S INCRIMINATING STATEMENTS AND THEIR FRUITS.  IN LIGHT OF
THE EVIDENCE WITH RESPECT TO COERCIVE POLICE ACTIVITIES, WE CANNOT SAY
WITH EVEN A MINIMAL DEGREE OF CERTAINTY THAT THE JURY DID NOT FIND THE
STATEMENTS INVOLUNTARY AND THAT IT DID NOT CHOOSE TO DISREGARD THEM AND
ALMOST ALL OF THE OTHER EVIDENCE IN THE CASE WHICH WAS DERIVED FROM
THOSE STATEMENTS.  WE ALSO CANNOT BE CERTAIN THAT THE JURY DID NOT BASE
ITS VERDICT PRIMARILY ON THE STATEMENT OF THE CODEFENDANT.  SEE
MALINSKI V. NEW YORK, 324 U.S. 401, 404 (1945); CF. ROGERS V. RICHMOND,
365 U.S. 534 (1961) (FRANKFURTER, J.). 

THE COURT WOULD ASSUME THAT THE JURY MUST HAVE FOUND PETITIONER'S
STATEMENTS TO BE VOLUNTARY AND THEREFORE ADMISSIBLE ALONG WITH THEIR
FRUITS, BECAUSE THE OTHER EVIDENCE WAS INSUFFICIENT TO SUPPORT A
CONVICTION.  THIS ASSUMPTION IS ERRONEOUS FOR SEVERAL REASONS.  FIRST,
THE JURY MAY HAVE FOUND THAT SOME OF PETITIONER'S STATEMENTS WERE
INVOLUNTARY AND SOME WERE VOLUNTARY.  THE "VOLUNTARY" STATEMENTS MAY
HAVE BEEN CONNECTED WITH THE CODEFENDANT'S STATEMENT TO SUPPORT THE
CONVICTION, WHILE STANDING ALONE THEY MAY HAVE BEEN INSUFFICIENT TO
SUPPORT A GUILTY VERDICT.  SECOND, THE JURY MAY HAVE FOUND THAT THE
STATEMENTS WERE ALL INVOLUNTARY BUT THAT SOME EVIDENCE REMAINED FREE
FROM ANY TAINT.  WHEREAS THE COURT INDICATES THAT IF THE STATEMENTS
WERE INVOLUNTARY, THEN ALL THE OTHER EVIDENCE IN THE CASE EXCEPT THE
CODEFENDANT'S STATEMENT MUST BE SUPPRESSED AS A MATTER OF LAW, THE JURY
WAS GIVEN ONLY A GENERAL INSTRUCTION ON SUPPRESSION AND MAY,
INCORRECTLY AND UNWITTINGLY, HAVE MORE NARROWLY CIRCUMSCRIBED THE
TAINT.  THE CODEFENDANT'S STATEMENT BOLSTERED ANY OTHER EVIDENCE
CONSIDERED BY THE JURY.  THIRD, THE JURY MAY HAVE FOUND THE STATEMENTS
TO BE INVOLUNTARY AND IGNORED ALL THE EVIDENCE THAT THE COURT SAYS
SHOULD HAVE BEEN IGNORED.  THE JURY MAY THEN HAVE CONVICTED ON
INSUFFICIENT CIRCUMSTANTIAL EVIDENCE, INCLUDING THE CODEFENDANT'S
STATEMENT.  WE NEED ASCRIBE NO MALEVOLENCE HERE; WE NEED ONLY RECOGNIZE
THAT HUMANS ERR.  INDEED, THE VERY NOTION OF "HARMLESS ERROR" SHOULD
CONSTANTLY REMIND US OF THAT.  /1/  ANY ONE OF THESE THINGS IS A
REASONABLE POSSIBILITY, AND DESPITE THE APPARENT CERTAINTY WITH WHICH
THE COURT AFFIRMS THE DECISION BELOW, THERE REMAINS A DEEP AND HAUNTING
DOUBT AS TO WHETHER A CONSTITUTIONAL VIOLATION CONTRIBUTED TO THE
CONVICTION. 

IN LIGHT OF THESE UNCERTAINTIES I FIND IT IMPOSSIBLE TO PERCEIVE HOW
THE COURT CAN CONCLUDE THAT THE VIOLATION OF BRUTON WAS HARMLESS
ERROR.  IT IS SIGNIFICANT THAT THE FLORIDA SUPREME COURT DID NOT FIND
HARMLESS ERROR IN THIS CASE.  UNLESS THE COURT INTENDS TO EMASCULATE
BRUTON, SUPRA, OR TO OVERRULE CHAPMAN V. CALIFORNIA, SUPRA, SUB
SILENTIO, THEN I SUBMIT THAT ITS DECISION IS CLEARLY WRONG. 

/1/  ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500 (1957), CITED
BY THE COURT TO SUPPORT THE PROPOSITION THAT WE DO NOT LIGHTLY INFER
IRRATIONAL JURY BEHAVIOR HAD NOTHING WHATEVER TO DO WITH A CRIMINAL
CASE GENERALLY OR WITH "HARMLESS ERROR" IN PARTICULAR.  THAT CASE DEALT
WITH THE PROPER FUNCTION OF JUDGE AND JURY IN FEDERAL EMPLOYERS'
LIABILITY ACT CASES.  IT NEVER CONSIDERED WHETHER REVERSAL WAS REQUIRED
WHEN EVIDENCE WAS ADMITTED IN VIOLATION OF THE CONSTITUTION.  ROGERS
WAS, IN SHORT, A CASE INVOLVING THE SUFFICIENCY OF THE EVIDENCE.  IN
SUCH CASES WE DRAW PRECISELY THE OPPOSITE INFERENCES AS DRAWN IN
"HARMLESS ERROR" CASES. 

CLYDE B. WELLS ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

GEORGE R. GEORGIEFF, ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS ROBERT L. SHEVIN,
ATTORNEY GENERAL. 
..END :














RABE V. WASHINGTON, 405 U.S. 313 


       RABE V. WASHINGTON

        CERTIORARI TO THE SUPREME COURT OF WASHINGTON

        NO. 71-247.  ARGUED FEBRUARY 29, 1972-- DECIDED MARCH 20,

           1972 


PETITIONER WAS CONVICTED OF VIOLATING WASHINGTON'S OBSCENITY STATUTE
FOR SHOWING A SEXUALLY FRANK MOTION PICUTRE AT A DRIVE-IN THEATER.  IN
AFFIRMING HIS CONVICTION, THE WASHINGTON SUPREME COURT DID NOT HOLD
THAT THE FILM WAS OBSCENE UNDER THE STANDARDS OF ROTH V. UNITED STATES,
354 U.S. 476, AND MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, BUT THAT IT
WAS OBSCENE IN "THE CONTEXT OF ITS EXHIBITION" AT A DRIVE-IN.  THE
STATUTE PROSCRIBING THE KNOWING DISPLAY OF "OBSCENE" FILMS DID NOT
MENTION THE LOCATION OF THE EXHIBITION AS AN ELEMENT OF THE OFFENSE. 
HELD:  A STATE MAY NOT CRIMINALLY PUNISH THE EXHIBITION OF A MOTION
PICTURE FILM AT A DRIVE-IN THEATER WHERE THE STATUTE ASSERTEDLY
VIOLATED HAS NOT GIVEN FAIR NOTICE THAT THE LOCATION OF THE EXHIBITION
WAS A VITAL ELEMENT OF THE OFFENSE. 

79 WASH.2D 254, 484 P.2D 917, REVERSED. 

PER CURIAM 

PETITIONER WAS THE MANAGER OF THE PARK Y DRIVE-IN THEATRE IN
RICHLAND, WASHINGTON, WHERE THE MOTION PICTURE CARMEN BABY WAS SHOWN. 
THE MOTION PICTURE IS A LOOSE ADAPTATION OF BIZET'S OPERA CARMEN,
CONTAINING SEXUALLY FRANK SCENES BUT NO INSTANCES OF SEXUAL
CONSUMMATION ARE EXPLICITLY PORTRAYED.  AFTER VIEWING THE FILM FROM
OUTSIDE THE THEATER FENCE ON TWO SUCCESSIVE EVENINGS, A POLICE OFFICER
OBTAINED A WARRANT AND ARRESTED PETITIONER FOR VIOLATING WASHINGTON'S
OBSCENITY STATUTE.  WASH. REV. CODE SEC. 9.68.010.  PETITIONER WAS
LATER CONVICTED AND, ON APPEAL, THE SUPREME COURT OF WASHINGTON
AFFIRMED.  79 WASH.2D 254, 484 P.2D 917 (1971).  WE GRANTED
CERTIORARI.  404 U.S. 909.  WE REVERSE PETITIONER'S CONVICTION. 

THE STATUTE UNDER WHICH PETITIONER WAS CONVICGED, WASH. REV. CODE
SEC. 9.68.010, MADE CRIMINAL THE KNOWING DISPLAY OF "OBSCENE" MOTION
PICTURES: 

"EVERY PERSON WHO-- 

     "(1) HAVING KNOWLEDGE OF THE CONTENTS THEREOF SHALL EXHIBIT,

  SELL, DISTRIBUTE, DISPLAY FOR SALE OR DISTRIBUTION, OR HAVING

  KNOWLEDGE OF THE CONTENTS THEREOF SHALL HAVE IN HIS POSSESSION

WITH THE INTENT TO SELL OR DISTRIBUTE ANY BOOK, MAGAZINE,

PAMPHLET, COMIC BOOK, NEWSPAPER, WRITING, PHOTOGRAPH, MOTION

  PICTURE FILM, PHONOGRAPH RECORD, TAPE OR WIRE RECORDING, PICTURE,

  DRAWING, FIGURE, IMAGE, OR ANY OBJECT OR THING WHICH IS OBSCENE;

  OR 

     "(2) HAVING KNOWLEDGE OF THE CONTENTS THEREOF SHALL CAUSE TO
BE

  PERFORMED OR EXHIBITED, OR SHALL ENGAGE IN THE PERFORMANCE OR

  EXHIBITION OF ANY SHOW, ACT, PLAY, DANCE OR MOTION PICTURE WHICH

IS OBSCENE; 

     "SHALL BE GUILTY OF A GROSS MISDEMEANOR." 

IN AFFIRMING PETITIONER'S CONVICTION, HOWEVER, THE SUPREME COURT OF
WASHINGTON DID NOT HOLD THAT CARMEN BABY WAS OBSCENE UNDER THE TEST
LAID DOWN BY THIS COURT'S PRIOR DECISIONS.  E.G., ROTH V. UNITED
STATES, 354 U.S. 476; MEMOIRS V. MASSACHUSETTS, 383 U.S. 413. 
UNCERTAIN "WHETHER THE MOVIE WAS OFFENSIVE TO THE STANDARDS RELATING TO
SEXUAL MATTERS IN THAT AREA AND WHETHER THE MOVIE ADVOCATED IDEAS OR
WAS OF ARTISTIC OR LITERARY VALUE," THE COURT CONCLUDED THAT IF IT
"WERE TO APPLY THE STRICT RULES OF ROTH, THE FILM 'CARMEN BABY'
PROBABLY WOULD PASS THE DEFINITIONAL OBSCENITY TEST IF THE VIEWING
AUDIENCE CONSISTED ONLY OF CONSENTING ADULTS."  79 WASH.2D, AT 263, 484
P.2D, AT 922.  RESPONDENT READ THE OPINION OF THE SUPREME COURT OF
WASHINGTON MORE NARROWLY, BUT NONETHELESS IMPLIED THAT BECAUSE THE FILM
HAD "REDEEMING SOCIAL VALUE" IT WAS NOT, BY ITSELF, "OBSCENE" UNDER THE
ROTH STANDARD.  THE SUPREME COURT OF WASHINGTON NONETHELESS UPHELD THE
CONVICTION, REASONING THAT IN "THE CONTEXT OF ITS EXHIBITION," CARMEN
BABY WAS OBSCENE.  IBID. 

TO AVOID THE CONSTITUTIONAL VICE OF VAGUENESS, IT IS NECESSARY, AT A
MINIMUM, THAT A STATUTE GIVE FAIR NOTICE THAT CERTAIN CONDUCT IS
PROSCRIBED.  THE STATUTE UNDER WHICH PETITIONER WAS PROSECUTED,
HOWEVER, MADE NO MENTION THAT THE "CONTEXT" OR LOCATION OF THE
EXHIBITION WAS AN ELEMENT OF THE OFFENSE SOMEHOW MODIFYING THE WORD
"OBSCENE."  PETITIONER'S CONVICTION WAS THUS AFFIRMED UNDER A STATUTE
WITH A MEANING QUITE DIFFERENT FROM THE ONE HE WAS CHARGED WITH
VIOLATING. 

"IT IS AS MUCH A VIOLATION OF DUE PROCESS TO SEND AN ACCUSED TO
PRISON FOLLOWING CONVICTION OF A CHARGE ON WHICH HE WAS NEVER TRIED AS
IT WOULD BE TO CONVICT HIM UPON A CHARGE THAT WAS NEVER MADE."  COLE V.
ARKANSAS, 333 U.S. 196, 201.  PETITIONER'S CONVICTION CANNOT,
THEREFORE, BE ALLOWED TO STAND.  GREGORY V. CITY OF CHICAGO, 394 U.S.
111; GARNER V. LOUISIANA, 368 U.S. 157, COLE V. ARKANSAS, SUPRA. 

UNDER THE INTERPRETATION GIVEN SEC. 9.68.010 BY THE SUPREME COURT OF
WASHINGTON, PETITIONER IS CRIMINALLY PUNISHED FOR SHOWING CARMEN BABY
IN A DRIVE-IN BUT HE MAY EXHIBIT IT TO ADULTS IN AN INDOOR THEATER WITH
IMPUNITY.  THE STATUTE, SO CONSTRUED, IS IMPERMISSIBLY VAGUE AS APPLIED
TO PETITIONER BECAUSE OF ITS FAILURE TO GIVE HIM FAIR NOTICE THAT
CRIMINAL LIABILITY IS DEPENDENT UPON THE PLACE WHERE THE FILM IS
SHOWN. 

WHAT WE SAID LAST TERM IN COHEN V. CALIFORNIA, 403 U.S. 15, 19,
ANSWERS RESPONDENT'S CONTENTION THAT THE PECULIAR INTEREST IN
PROHIBITING OUTDOOR DISPLAYS OF SEXUALLY FRANK MOTION PICTURES
JUSTIFIES THE APPLICATION OF THIS STATUTE TO PETITIONER: 

"ANY ATTEMPT TO SUPPORT THIS CONVICTION ON THE GROUND THAT THE
STATUTE SEEKS TO PRESERVE AN APPROPRIATELY DECOROUS ATMOSPHERE IN THE
COURTHOUSE WHERE COHEN WAS ARRESTED MUST FAIL IN THE ABSENCE OF ANY
LANGUAGE IN THE STATUTE THAT WOULD HAVE PUT APPELLANT ON NOTICE THAT
CERTAIN KINDS OF OTHERWISE PERMISSIBLE SPEECH OR CONDUCT WOULD
NEVERTHELESS, UNDER CALIFORNIA LAW, NOT BE TOLERATED IN CERTAIN
PLACES.  . . . NO FAIR READING OF THE PHRASE 'OFFENSIVE CONDUCT' CAN BE
SAID SUFFICIENTLY TO INFORM THE ORDINARY PERSON THAT DISTINCTIONS
BETWEEN CERTAIN LOCATIONS ARE THEREBY CREATED." 

WE NEED NOT DECIDE THE BROAD CONSTITUTIONAL QUESTIONS TENDERED TO US
BY THE PARTIES.  WE HOLD SIMPLY THAT A STATE MAY NOT CRIMINALLY PUNISH
THE EXHIBITION AT A DRIVE-IN THEATER OF A MOTION PICTURE WHERE THE
STATUTE, USED TO SUPPORT THE CONVICTION, HAS NOT GIVEN FAIR NOTICE THAT
THE LOCATION OF THE EXHIBITION WAS A VITAL ELEMENT OF THE OFFENSE. 

THE JUDGMENT OF THE SUPREME COURT OF WASHINGTON IS

              REVERSED. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING. 

I CONCUR SOLELY ON THE GROUND THAT PETITIONER'S CONVICTION UNDER
WASHINGTON'S GENERAL OBSCENITY STATUTE CANNOT, UNDER THE CIRCUMSTANCES
OF THIS CASE, BE SUSTAINED CONSISTENT WITH THE FUNDAMENTAL NOTICE
REQUIREMENTS OF THE DUE PROCESS CLAUSE.  THE EVIDENCE IN THIS CASE,
HOWEVER, REVEALED THAT THE SCREEN OF PETITIONER'S THEATER WAS CLEARLY
VISIBLE TO MOTORISTS PASSING ON A NEARBY PUBLIC HIGHWAY AND TO 12 TO 15
NEARBY FAMILY RESIDENCES.  IN ADDITION, YOUNG TEENAGE CHILDREN WERE
OBSERVED VIEWING THE FILM FROM OUTSIDE THE CHAIN LINK FENCE ENCLOSING
THE THEATER GROUNDS.  I, FOR ONE, WOULD BE UNWILLING TO HOLD THAT THE
FIRST AMENDMENT PREVENTS A STATE FROM PROHIBITING SUCH A PUBLIC DISPLAY
OF SCENES DEPICTING EXPLICIT SEXUAL ACTIVITIES IF THE STATE UNDERTOOK
TO DO SO UNDER A STATUTE NAROWLY DRAWN TO PROTECT THE PUBLIC FROM
POTENTIAL EXPOSURE TO SUCH OFFENSIVE MATERIALS.  SEE REDRUP V. NEW
YORK, 386 U.S. 767 (1967).  /1/ 

PUBLIC DISPLAYS OF EXPLICIT MATERIALS SUCH AS DESCRIBED IN THIS
RECORD ARE NOT SIGNIFICANTLY DIFFERENT FROM ANY NOXIOUS PUBLIC NUISANCE
TRADITIONALLY WITHIN THE POWER OF THE STATES TO REGULATE AND PROHIBIT,
AND, IN MY VIEW, INVOLVE NO SIGNIFICANT COUNTERVAILING FIRST AMENDMENT
CONSIDERATIONS.  /2/  THAT THIS RECORD SHOWS AN OFFENSIVE NUISANCE THAT
COULD PROPERLY BE PROHIBITED, I HAVE NO DOUBT, BUT THE STATE STATUTE
AND CHARGE DID NOT GIVE THE NOTICE CONSTITUTIONALLY REQUIRED. 

/1/  FOR EXAMPLES OF RECENT STATUTES REGULATING PUBLIC DISPLAYS, SEE
ARIZ. REV. STAT. ANN. SEC. 13-537 (SUPP. 1971-1972); N.Y. PENAL LAW
SECS. 245.10-245.11 (SUPP. 1971-1972). 

/2/  UNDER SUCH CIRCUMSTANCES, WHERE THE VERY METHOD OF DISPLAY MAY
THRUST ISOLATED SCENES ON THE PUBLIC, THE ROTH V. UNITED STATES, 354
U.S. 476, 489 (1957), REQUIREMENT THAT THE MATERIALS BE "TAKEN AS A
WHOLE" HAS LITTLE RELEVANCE.  FOR ME, THE FIRST AMENDMENT MUST BE
TREATED IN THIS CONTEXT AS IT WOULD IN A LIBEL ACTION:  IF THERE IS
SOME LIBEL IN A BOOK, ARTICLE, OR SPEECH WE DO NOT AVERAGE THE TONE OR
TENOR OF THE WHOLE; THE LIBELOUS PART IS NOT PROTECTED. 

WILLIAM L. DWYER ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

CURTIS LUDWIG ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS HERBERT H. DAVIS. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY STANLEY
FLEISHMAN AND SAM ROSENWEIN FOR THE NATIONAL ASSOCIATION OF THEATRE
OWNERS, INC., AND BY LOUIS NIZER AND JAMES BOURAS FOR THE MOTION
PICTURE ASSOCIATION OF AMERICA, INC. 

CONSTANTINE REGUSIS FILED A BRIEF FOR MORALITY IN MEDIA, INC., AS
AMICUS CURIAE, URGING AFFIRMANCE. 
..END :

















WILLIS V. PRUDENTIAL INSURANCE COMPANY OF AMERICA, 405 U.S. 318 


       WILLIS V. PRUDENTIAL INSURANCE COMPANY OF AMERICA

        CERTIORARI TO THE SUPREME COURT OF GEORGIA

  NO. 70-5344.  ARGUED FEBRUARY 28, 1972-- DECIDED MARCH 20,

           1972 


227 GA. 619, 182 S.E.2D 420, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE POWELL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

E. FREEMAN LEVERETT ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

A FELTON JENKINS, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS WOODROW W. LAVENDER. 
..END :





CRUZ V. BETO, 405 U.S. 319 


       CRUZ V. BETO, CORRECTIONS DIRECTOR

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

   COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 71-5552.  DECIDED MARCH 20, 1972 


PETITIONER PRISONER, AN ALLEGED BUDDHIST, COMPLAINED THAT HE WAS NOT
ALLOWED TO USE THE PRISON CHAPEL, THAT HE WAS PROHIBITED FROM WRITING
TO HIS RELIGIOUS ADVISOR, AND THAT HE WAS PLACED IN SOLITARY
CONFINEMENT FOR SHARING HIS RELIGIOUS MATERIAL WITH OTHER PRISONERS. 
THE FEDERAL DISTRICT COURT DENIED RELIEF WITHOUT A HEARING OR FINDINGS,
HOLDING THE COMPLAINT TO BE IN AN AREA THAT SHOULD BE LEFT "TO THE
SOUND DISCRETION OF PRISON ADMINISTRATION."  THE COURT OF APPEALS
AFFIRMED.  HELD:  ON THE BASIS OF THE ALLEGATIONS, TEXAS HAS
DISCRIMINATED AGAINST PETITIONER BY DENYING HIM A REASONABLE
OPPORTUNITY TO PURSUE HIS BUDDHIST FAITH COMPARABLE TO THAT OFFERED
OTHER PRISONERS ADHERING TO CONVENTIONAL RELIGIOUS PRECEPTS, AND THE
CAUSE IS REMANDED FOR A HEARING AND APPROPRIATE FINDINGS. 

CERTIORARI GRANTED; 445 F.2D 801, VACATED AND REMANDED. 

PER CURIAM 

THE COMPLAINT, ALLEGING A CAUSE OF ACTION UNDER 42 U.S.C. 1983,
STATES THAT CRUZ IS A BUDDHIST, WHO IS IN A TEXAS PRISON.  WHILE
PRISONERS WHO ARE MEMBERS OF OTHER RELIGIOUS SECTS ARE ALLOWED TO USE
THE PRISON CHAPEL, CRUZ IS NOT.  HE SHARED HIS BUDDHIST RELIGIOUS
MATERIAL WITH OTHER PRISONERS AND, ACCORDING TO THE ALLEGATIONS, IN
RETALIATION WAS PLACED IN SOLITARY CONFINEMENT ON A DIET OF BREAD AND
WATER FOR TWO WEEKS, WITHOUT ACCESS TO NEWSPAPERS, MAGAZINES, OR OTHER
SOURCES OF NEWS.  HE ALSO ALLEGED THAT HE WAS PROHIBITED FROM
CORRESPONDING WITH HIS RELIGIOUS ADVISOR IN THE BUDDHIST SECT.  THOSE
IN THE ISOLATION UNIT SPEND 22 HOURS A DAY IN TOTAL IDLENESS. 

AGAIN, ACCORDING TO THE ALLEGATIONS, TEXAS ENCOURAGES INMATES TO
PARTICIPATE IN OTHER RELIGIOUS PROGRAMS, PROVIDING AT STATE EXPENSE
CHAPLAINS OF THE CATHOLIC, JEWISH, AND PROTESTANT FAITHS; PROVIDING
ALSO AT STATE EXPENSE COPIES OF THE JEWISH AND CHRISTIAN BIBLES, AND
CONDUCTING WEEKLY SUNDAY SCHOOL CLASSES AND RELIGIOUS SERVICES. 
ACCORDING TO THE ALLEGATIONS, POINTS OF GOOD MERIT ARE GIVEN PRISONERS
AS A REQARD FOR ATTENDING ORTHODOX RELIGIOUS SERVICES, THOSE POINTS
ENHANCING A PRISONER'S ELIGIBILITY FOR DESIRABLE JOB ASSIGNMENTS AND
EARLY PAROLE CONSIDERATION.  /1/  RESPONDENT ANSWERED, DENYING THE
ALLEGATIONS AND MOVING TO DISMISS. 

THE FEDERAL DISTRICT COURT DENIED RELIEF WITHOUT A HEARING OR ANY
FINDINGS, SAYING THE COMPLAINT WAS IN AN AREA THAT SHOULD BE LEFT "TO
THE SOUND DISCRETION OF PRISON ADMINISTRATION."  IT WENT ON TO SAY,
"VALID DISCIPLINARY AND SECURITY REASONS NOT KNOWN TO THIS COURT MAY
PREVENT THE 'EQUALITY' OF EXERCISE OF RELIGIOUS PRACTICES IN PRISON." 
THE COURT OF APPEALS AFFIRMED.  445 F.2D 801. 

FEDERAL COURTS SIT NOT TO SUPERVISE PRISONS BUT TO ENFORCE THE
CONSTITUTIONAL RIGHTS OF ALL "PERSONS," INCLUDING PRISONERS.  WE ARE
NOT UNMINDFUL THAT PRISON OFFICIALS MUST BE ACCORDED LATITUDE IN THE
ADMINISTRATION OF PRISON AFFAIRS, AND THAT PRISONERS NECESSARILY ARE
SUBJECT TO APPROPRIATE RULES AND REGULATIONS.  BUT PERSONS IN PRISON,
LIKE OTHER INDIVIDUALS, HAVE THE RIGHT TO PETITION THE GOVERNMENT FOR
REDRESS OF GRIEVANCES WHICH, OF COURSE, INCLUDES "ACCESS OF PRISONERS
TO THE COURTS FOR THE PURPOSE OF PRESENTING THEIR COMPLAINTS."  JOHNSON
V. AVERY, 393 U.S. 483, 485; EX PARTE HULL, 312 U.S. 546, 549.  SEE
ALSO YOUNGER V. GILMORE, 404 U.S. 15, AFF'G GILMORE V. LYNCH, 319
F.SUPP.  105 (ND CAL.).  MOREOVER, RACIAL SEGREGATION, WHICH IS
UNCONSTITUTIONAL OUTSIDE PRISONS, IS UNCONSTITUTIONAL WITHIN PRISONS,
SAVE FOR "THE NECESSITIES OF PRISON SECURITY AND DISCIPLINE."  LEE V.
WASHINGTON, 390 U.S. 333, 334.  EVEN MORE CLOSELY IN POINT IS COOPER V.
PATE, 378 U.S. 546, WHERE WE REVERSED A DISMISSAL OF A COMPLAINT
BROUGHT UNDER 42 U.S.C. 1983.  WE SAID:  "TAKING AS TRUE THE
ALLEGATIONS OF THE COMPLAINT, AS THEY MUST BE ON A MOTION TO DISMISS,
THE COMPLAINT STATED A CAUSE OF ACTION."  IBID.  THE ALLEGATION MADE BY
THAT PETITIONER WAS THAT SOLELY BECAUSE OF HIS RELIGIOUS BELIEFS HE WAS
DENIED PERMISSION TO PURCHASE CERTAIN RELIGIOUS PUBLICATIONS AND DENIED
OTHER PRIVILEGES ENJOYED BY OTHER PRISONERS. 

WE SAID IN CONLEY V. GIBSON, 355 U.S. 41, 45-46, THAT "A COMPLAINT
SHOULD NOT BE DISMISSED FOR FAILURE TO STATE A CLAIM UNLESS IT APPEARS
BEYOND DOUBT THAT THE PLAINTIFF CAN PROVE NO SET OF FACTS IN SUPPORT OF
HIS CLAIM WHICH WOULD ENTITLE HIM TO RELIEF." 

IF CRUZ WAS A BUDDHIST AND IF HE WAS DENIED A REASONABLE OPPORTUNITY
OF PURSUING HIS FAITH COMPARABLE TO THE OPPORTUNITY AFFORDED FELLOW
PRISONERS WHO ADHERE TO CONVENTIONAL RELIGIOUS PRECEPTS, THEN THERE WAS
PALPABLE DISCRIMINATION BY THE STATE AGAINST THE BUDDHIST RELIGION,
ESTABLISHED 600 B.C., LONG BEFORE THE CHRISTIAN ERA.  /2/  THE FIRST
AMENDMENT, APPLICABLE TO THE STATES BY REASON OF THE FOURTEENTH
AMENDMENT, TORCASO V. WATKINS, 367 U.S. 488, 492-493, PROHIBITS
GOVERNMENT FROM MAKING A LAW "PROHIBITING THE FREE EXERCISE" OF
RELIGION.  IF THE ALLEGATIONS OF THIS COMPLAINT ARE ASSUMED TO BE TRUE,
AS THEY MUST BE ON THE MOTION TO DISMISS, TEXAS HAS VIOLATED THE FIRST
AND FOURTEENTH AMENDMENTS. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
PETITION FOR CERTIORARI IS GRANTED, THE JUDGMENT IS VACATED, AND THE
CAUSE REMANDED FOR A HEARING AND APPROPRIATE FINDINGS. 

              SO ORDERED. 

/1/  THE AMENDED COMPLAINT ALLEGES, INTER ALIA: 

"PLAINTIFF IS AN INMATE OF THE TEXAS DEPARTMENT OF CORRECTIONS AND
IS A MEMBER OF THE BUDDHIST CHURCHES OF AMERICA.  AT THE TIME OF FILING
OF THIS SUIT, HE WAS INCARCERATED AT THE EASTHAM UNIT AND HAS SINCE
BEEN TRANSFERRED TO THE ELLIS UNIT.  THERE IS A SUBSTANTIAL NUMBER OF
PRISONERS IN THE TEXAS DEPARTMENT OF CORRECTIONS WHO EITHER ARE
ADHERENTS OF THE BUDDHIST FAITH OR WHO WISH TO EXPLORE THE GOSPEL OF
BUDDHISM; HOWEVER, THE DEFENDANTS HAVE REFUSED IN THE PAST, AND
CONTINUE TO REFUSE, BUDDHISTS THE RIGHT TO HOLD RELIGIOUS SERVICES OR
TO DISSEMINATE THE TEACHINGS OF BUDDHA.  THE PLAINTIFF HAS BEEN
PREVENTED BY THE DEFENDANTS FROM BORROWING OR LENDING BUDDHIST
RELIGIOUS BOOKS AND MATERIALS AND HAS BEEN PUNISHED BY SAID DEFENDANTS
BY BEING PLACED IN SOLITARY CONFINEMENT ON A DIET OF BREAD AND WATER
FOR TWO WEEKS FOR SHARING HIS BUDDHIST RELIGIOUS MATERIAL WITH OTHER
PRISONERS. 

"DESPITE REPEATED REQUESTS TO DEFENDANTS FOR THE USE OF PRISON
CHAPEL FACILITIES FOR THE PURPOSE OF HOLDING BUDDHIST RELIGIOUS
SERVICES AND THE DENIALS THEREOF THE DEFENDANTS HAVE PROMULGATED
CUSTOMS AND REGULATIONS WHICH MAINTAIN A RELIGIOUS PROGRAM WITHIN THE
PENAL SYSTEM UNDER WHICH: 

"A.  CONSECRATED CHAPLAINS OF THE PROTESTANT, JEWISH AND ROMAN
CATHOLIC RELIGIONS AT STATE EXPENSE ARE ASSIGNED TO VARIOUS UNITS. 

"B.  COPIES OF THE HOLY BIBLE (JEWISH AND CHRISTIAN) ARE DISTRIBUTED
AT STATE EXPENSE FREE TO ALL PRISONERS. 

"C. RELIGIOUS SERVICES AND RELIGIOUS CLASSES FOR PROTESTANT, JEWISH
AND ROMAN CATHOLIC ADHERENTS ARE HELD REGULARLY IN CHAPEL FACILITIES
ERECTED AT STATE EXPENSE FOR 'NON-DENOMINATIONAL' PURPOSES. 

"D.  RECORDS ARE MAINTAINED BY DEFENDANTS OF RELIGIOUS PARTICIPATION
BY INMATES. 

"E.  RELIGIOUS PARTICIPATION IS ENCOURAGED ON INMATES BY THE
DEFENDANTS AS NECESSARY STEPS TOWARD TRUE REHABILITATION. 

"F.  POINTS OF GOOD MERIT ARE GIVEN TO INMATES BY THE DEFENDANTS AS
A REGARD FOR RELIGIOUS PARTICIPATION IN PROTESTANT, JEWISH AND ROMAN
CATHOLIC FAITHS WHICH ENHANCE ON INMATES ELIGIBILITY FOR PROMOTIONS IN
CLASS, JOB ASSIGNMENT AND PAROLE. 

"BECAUSE INMATES OF THE BUDDHIST FAITH ARE BEING DENIED THE RIGHT TO
PARTICIPATE IN THE RELIGIOUS PROGRAM MADE AVAILABLE FOR PROTESTANT,
JEWISH AND ROMAN CATHOLIC FAITHS BY THE DEFENDANTS, PLAINTIFF AND THE
MEMBERS OF THE CLASS HE REPRESENTS ARE BEING SUBJECTED TO AN ARBITRARY
AND UNREASONABLE EXCLUSION WITHOUT ANY LAWFUL JUSTIFICATION WHICH
INVIDIOUSLY DISCRIMINATES AGAINST THEM IN VIOLATION OF THEIR
CONSTITUTIONAL RIGHT OF RELIGIOUS FREEDOM AND DENIES THEM EQUAL
PROTECTION OF THE LAWS." 

/2/  WE DO NOT SUGGEST, OF COURSE, THAT EVERY RELIGIOUS SECT OR
GROUP WITHIN A PRISON-- HOWEVER FEW IN NUMBER-- MUST HAVE IDENTICAL
FACILITIES OR PERSONNEL.  A SPECIAL CHAPEL OR PLACE OF WORSHIP NEED NOT
BE PROVIDED FOR EVERY FAITH REGARDLESS OF SIZE; NOR MUST A CHAPLAIN,
PRIEST, OR MINISTER BE PROVIDED WITHOUT REGARD TO THE EXTENT OF THE
DEMAND.  BUT REASONABLE OPPORTUNITIES MUST BE AFFORDED TO ALL PRISONERS
TO EXERCISE THE RELIGIOUS FREEDOM GUARANTEED BY THE FIRST AND
FOURTEENTH AMENDMENTS WITHOUT FEAR OF PENALTY. 

MR. JUSTICE BLACKMUN CONCURS IN THE RESULT. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT REACHED EVEN THOUGH THE ALLEGATIONS OF THE
COMPLAINT ARE ON THE BORDERLINE NECESSARY TO COMPEL AN EVIDENTIARY
HEARING.  SOME OF THE CLAIMS ALLEGED ARE FRIVOLOUS; OTHERS DO NOT
PRESENT JUSTICIABLE ISSUES.  THERE CANNOT POSSIBLY BE ANY
CONSTITUTIONAL OR LEGAL REQUIREMENT THAT THE GOVERNMENT PROVIDE
MATERIALS FOR EVERY RELIGION AND SECT PRACTICED IN THIS DIVERSE
COUNTRY.  AT MOST, BUDDHIST MATERIALS CANNOT BE DENIED TO PRISONERS IF
SOMEONE OFFERS TO SUPPLY THEM. 

MR. JUSTICE REHNQUIST, DISSENTING. 

UNLIKE THE COURT, I AM NOT PERSUADED THAT PETITIONER'S COMPLAINT
STATES A CLAIM UNDER THE FIRST AMENDMENT, OR THAT IF THE OPINION OF THE
COURT OF APPEALS IS VACATED THE TRIAL COURT MUST NECESSARILY CONDUCT A
TRIAL UPON THE COMPLAINT.  /1/ 

UNDER THE FIRST AMENDMENT, OF COURSE, TEXAS MAY NEITHER "ESTABLISH A
RELIGION" NOR MAY IT "IMPAIR THE FREE EXERCISE" THEREOF.  PETITIONER
ALLEGES THAT VOLUNTARY SERVICES ARE MADE AVAILABLE AT PRISON FACILITIES
SO THAT PROTESTANTS, CATHOLICS, AND JEWS MAY ATTEND CHURCH SERVICES OF
THEIR CHOICE.  NONE OF OUR PRIOR HOLDINGS INDICATES THAT SUCH A PROGRAM
ON THE PART OF PRISON OFFICIALS AMOUNTS TO THE ESTABLISHMENT OF A
RELIGION. 

PETITIONER IS A PRISONER SERVING 15 YEARS FOR ROBBERY IN A TEXAS
PENITENTIARY.  HE IS UNDERSTANDABLY NOT AS FREE TO PRACTICE HIS
RELIGION AS IF HE WERE OUTSIDE THE PRISON WALLS.  BUT THERE IS NO
INTIMATION IN HIS PLEADINGS THAT HE IS BEING PUNISHED FOR HIS RELIGIOUS
VIEWS, AS WAS THE CASE IN COOPER V. PATE, 378 U.S. 546 (1964), WHERE A
PRISONER WAS DENIED THE RECEIPT OF MAIL ABOUT HIS RELIGION.  COOPER
PRESENTED NO QUESTION OF INTERFERENCE WITH PRISON ADMINISTRATION OF THE
TYPE THAT WOULD BE INVOLVED HERE IN RETAINING CHAPLAINS, SCHEDULING THE
USE OF PRISON FACILITIES, AND TIMING THE ACTIVITIES OF VARIOUS
PRISONERS. 

NONE OF OUR HOLDINGS UNDER THE FIRST AMENDMENT REQUIRES THAT, IN
ADDITION TO BEING ALLOWED FREEDOM OF RELIGIOUS BELIEF, PRISONERS BE
ALLOWED FREELY TO EVANGELIZE THEIR VIEWS AMONG OTHER PRISONERS.  THERE
IS NO INDICATION IN PETITIONER'S COMPLAINT THAT THE PRISON OFFICIALS
HAVE DEALT MORE STRICTLY WITH HIS EFFORTS TO CONVERT OTHER CONVICTS TO
BUDDHISM THAN WITH EFFORTS OF COMMUNICANTS OF OTHER FAITHS TO MAKE
SIMILAR CONVERSIONS. 

BY REASON OF HIS STATUS, PETITIONER IS OBVIOUSLY LIMITED IN THE
EXTENT TO WHICH HE MAY PRACTICE HIS RELIGION.  HE IS ASSUREDLY NOT FREE
TO ATTEND THE CHURCH OF HIS CHOICE OUTSIDE THE PRISON WALLS.  BUT THE
FACT THAT THE TEXAS PRISON SYSTEM OFFERS NO BUDDHIST SERVICES AT THIS
PARTICULAR PRISON DOES NOT, UNDER THE CIRCUMSTANCES PLEADED IN HIS
COMPLAINT, DEMONSTRATE THAT HIS RELIGIOUS FREEDOM IS BEING IMPAIRED. 
PRESUMABLY PRISON OFFICIALS ARE NOT OBLIGATED TO PROVIDE FACILITIES FOR
ANY PARTICULAR DENOMINATIONAL SERVICES WITHIN A PRISON, ALTHOUGH ONCE
THEY UNDERTAKE TO PROVIDE THEM FOR SOME THEY MUST MAKE ONLY SUCH
REASONABLE DISTINCTIONS AS MAY SURVIVE ANALYSIS UNDER THE EQUAL
PROTECTION CLAUSE. 

WHAT PETITIONER'S BASIC CLAIM AMOUNTS TO IS THAT BECAUSE PRISON
FACILITIES ARE PROVIDED FOR DENOMINATIONAL SERVICES FOR RELIGIONS WITH
MORE NUMEROUS FOLLOWERS, THE FAILURE TO PROVIDE PRISON FACILITIES FOR
BUDDHIST SERVICES AMOUNTS TO A DENIAL OF THE EQUAL PROTECTION OF THE
LAWS.  THERE IS NO INDICATION FROM PETITIONER'S COMPLAINT HOW MANY
PRACTICING BUDDHISTS THERE ARE IN THE PARTICULAR PRISON FACILITY IN
WHICH HE IS INCARCERATED, NOR IS THERE ANY INDICATION OF THE DEMAND
UPON AVAILABLE FACILITIES FOR OTHER PRISONER ACTIVITIES.  NEITHER THE
DECISIONS OF THIS COURT AFTER FULL ARGUMENT, NOR THOSE SUMMARILY
REVERSING THE DISMISSAL OF A PRISONER'S CIVIL RIGHTS COMPLAINT /2/
HAVE EVER GIVEN FULL CONSIDERATION TO THE PROPER BALANCE TO BE STRUCK
BETWEEN PRISONERS' RIGHTS AND THE EXTENSIVE ADMINISTRATIVE DISCRETION
THAT MUST REST WITH CORRECTION OFFICIALS.  I WOULD APPLY THE RULE OF
DEFERENCE TO ADMINISTRATIVE DISCRETION THAT HAS BEEN OVERWHELMINGLY
ACCEPTED IN THE COURTS OF APPEALS.  /3/  FAILING THAT, I WOULD AT LEAST
HEAR ARGUMENT AS TO WHAT RULE SHOULD GOVERN. 

A LONG LINE OF DECISIONS BY THIS COURT HAS RECOGNIZED THAT THE
"EQUAL PROTECTION OF THE LAWS" GUARANTEED BY THE FOURTEENTH AMENDMENT
IS NOT TO BE APPLIED IN A PRECISELY EQUIVALENT WAY IN THE MULTITUDINOUS
FACT SITUATIONS THAT MAY CONFRONT THE COURTS.  /4/  ON THE ONE HAND, WE
HAVE HELD THAT RACIAL CLASSIFICATIONS ARE "INVIDIOUS" AND "SUSPECT." 
/5/  I THINK IT QUITE CONSISTENT WITH THE INTENT OF THE FRAMERS OF THE
FOURTEENTH AMENDMENT, MANY OF WHOM WOULD DOUBTLESS BE SURPRISED TO KNOW
THAT CONVICTS CAME WITHIN ITS AMBIT, TO TREAT PRISONER CLAIMS AT THE
OTHER END OF THE SPECTRUM FROM CLAIMS OF RACIAL DISCRIMINATION.  ABSENT
A COMPLAINT ALLEGING FACTS SHOWING THAT THE DIFFERENCE IN TREATMENT
BETWEEN PETITIONER AND HIS FELLOW BUDDHISTS AND PRACTITIONERS OF
DENOMINATIONS WITH MORE NUMEROUS ADHERENTS COULD NOT REASONABLY BE
JUSTIFIED UNDER ANY RATIONAL HYPOTHESIS, I WOULD LEAVE THE MATTER IN
THE HANDS OF THE PRISON OFFICIALS.  /6/ 

IT HAS BEEN ASSUMED THAT THE DISMISSAL BY THE TRIAL COURT MUST BE
TREATED AS PROPER ONLY IF THE STANDARD OF CONLEY V. GIBSON, 355 U.S. 41
(1957), WOULD PERMIT THE GRANT OF A MOTION UNDER FED. RULE CIV. PROC.
12(B)(6).  I WOULD NOT REQUIRE THE DISTRICT COURT TO INFLEXIBLY APPLY
THIS GENERAL PRINCIPLE TO THE COMPLAINT OF EVERY INMATE, WHO IS IN MANY
RESPECTS IN A DIFFERENT LITIGATING POSTURE THAN PERSONS WHO ARE
UNCONFINED.  THE INMATE STANDS TO GAIN SOMETHING AND LOSE NOTHING FROM
A COMPLAINT STATING FACTS THAT HE IS ULTIMATELY UNABLE TO PROVE.  /7/
THOUGH HE MAY BE DENIED LEGAL RELIEF, HE WILL NONETHELESS HAVE OBTAINED
A SHORT SABBATICAL IN THE NEAREST FEDERAL COURTHOUSE.  /8/  TO EXPAND
THE AVAILABILITY OF SUCH COURTROOM APPEARANCES BY REQUIRING THE
DISTRICT COURT TO CONSTRUE EVERY INMATE'S COMPLAINT UNDER THE LIBERAL
RULE OF CONLEY V. GIBSON DEPRIVES THOSE COURTS OF THE LATITUDE
NECESSARY TO PROCESS THIS EVER-INCREASING SPECIES OF COMPLAINT.  /9/ 
FINALLY, A FACTUAL HEARING SHOULD NOT BE IMPERATIVE ON REMAND IF
DISMISSAL IS APPROPRIATE ON GROUNDS OTHER THAN FAILURE TO STATE A CLAIM
FOR RELIEF.  IT IS EVIDENT FROM THE RECORD BEFORE US THAT THE IN FORMA
PAUPERIS COMPLAINT MIGHT WELL HAVE BEEN DISMISSED AS "FRIVOLOUS OR
MALICIOUS," UNDER THE DISCRETION VESTED IN THE TRIAL COURT BY 28 U.S.C.
1915(D).  /10/  THIS POWER IS NOT LIMITED OR IMPAIRED BY THE STRICTURES
OF RULE 12(B).  FLETCHER V. YOUNG, 222 F.2D 222 (CA4 1955).  ALTHOUGH
THE TRIAL COURT BASED ITS DISMISSAL ON 12(B)(6) GROUNDS, THIS RECORD
WOULD SUPPORT A DISMISSAL AS FRIVOLOUS. 

THE STATE'S ANSWER TO THE COMPLAINT SHOWED THAT THE IDENTICAL ISSUES
OF RELIGIOUS FREEDOMS WERE LITIGATED BY ANOTHER PRISONER FROM THE SAME
INSTITUTION, CLAIMING THE SAME IMPAIRMENT OF THE PRACTICE OF THE
BUDDHIST RELIGION, WHICH WAS BROUGHT BY THE ATTORNEY EMPLOYED AT THE
PRISON TO PROVIDE LEGAL SERVICES FOR THE INMATES.  IT IS NOT CLEAR
WHETHER PETITIONER HERE WAS A PARTY TO THAT SUIT, AS HE WAS TO MANY
SUITS FILED BY HIS FELLOW PRISONERS.  IF HE WAS, THE INSTANT CLAIM MAY
BE BARRED UNDER THE DOCTRINE OF RES JUDICATA.  IN ANY EVENT, A PRIOR
ADJUDICATION OF THE SAME CLAIM BY ANOTHER PRISONER UNDER IDENTICAL
CIRCUMSTANCES WOULD BE A SUBSTANTIAL FACTOR IN A DECISION TO DISMISS
THIS CLAIM AS FRIVOLOUS. 

IN ADDITION, THE TRIAL COURT HAD BEFORE IT THE DISMISSAL OF ANOTHER
OF PETITIONER'S CASES FILED SHORTLY BEFORE THE INSTANT ACTION, WHERE
THE TRIAL JUDGE HAD BEEN EXPOSED TO MYRIAD PREVIOUS ACTIONS, AND FOUND
THEM TO BE "VOLUMINOUS, REPETITIOUS, DUPLICITOUS AND IN MANY INSTANCES
DECEITFUL."  /11/  WHETHER PETITIONER MIGHT HAVE RAISED HIS CLAIM IN
THESE OR SEVERAL OTHER ACTIONS IN WHICH HE JOINED OTHER PRISONER
PLAINTIFFS IS ALSO PROPER FOUNDATION FOR A FINDING THAT THIS COMPLAINT
IS "FRIVOLOUS OR MALICIOUS."  WHATEVER MIGHT BE THE POSTURE OF THIS
CONSTITUTIONAL CLAIM IF PETITIONER HAD NEVER FLOODED THE COURTS WITH
REPETITIVE AND DUPLICITOUS CLAIMS, AND IF IT HAD NOT RECENTLY BEEN
ADJUDICATED IN AN IDENTICAL PROCEEDING, I BELIEVE IT COULD BE DISMISSED
AS FRIVOLOUS IN THE CASE BEFORE US. 

/1/  THE COURT "REMANDS) FOR A HEARING AND APPROPRIATE FINDINGS,"
ANTE, THIS PAGE.  BUT, OF COURSE, THE ONLY PROCEDURAL VEHICLE FOR
MAKING SUCH FINDINGS IN THIS CIVIL LITIGATION WOULD BE THE TRIAL TO
WHICH ANY CIVIL LITIGANT IS ENTITLED, INASMUCH AS THIS COURT HAS NEVER
DEALT WITH THE SPECIAL PROCEDURAL PROBLEMS PRESENTED BY PRISONERS'
CIVIL SUITS.  SEE FED. RULES CIV. PROC. 

/2/  HAINES V. KERNER, 404 U.S. 519 (1972); YOUNGER V. GILMORE, 404
U.S. 15 (1971); HOUGHTON V. SHAFER, 392 U.S. 639 (1968); LEE V.
WASHINGTON, 390 U.S. 333 (1968); COOPER V. PATE, 378 U.S. 546 (1964). 

/3/  DOUGLAS V. SIGLER, 386 F.2D 684, 688 (CA8 1967); CAREY V.
SETTLE, 351 F.2D 483 (CA8 1965); CARSWELL V. WAINWRIGHT, 413 F.2D 1044
(CA5 1969); WALKER V. PATE, 356 F.2D 502 (CA7 1966).  I DO NOT READ
JOHNSON V. AVERY, 393 U.S. 483 (1969), WHICH WAS CONCERNED WITH THE
PRISONERS' TRADITIONAL REMEDY OF HABEAS CORPUS, TO REACH THE ISSUE OF A
STATUTORY CIVIL CAUSE OF ACTION SUCH AS 42 U.S.C. 1983. 

/4/  SEE GENERALLY MCGOWAN V. MARYLAND, 366 U.S. 420 (1961);
DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970); F.S.ROYSTER GUANO CO. V.
VIRGINIA, 253 U.S. 412 (1920); LEVY V. LOUISIANA, 391 U,S. 68 (1968);
CARRINGTON V. RASH, 380 U.S. 89 (1965), AS EXAMPLES OF THE SPECTRUM OF
FOURTEENTH AMENDMENT REVIEW STANDARDS. 

/5/  LOVING V. VIRGINIA, 388 U.S. 1 (1967); KOREMATSU V. UNITED
STATES, 323 U.S. 214 (1944). 

/6/  PETITIONER (REPRESENTED BY A LAWYER WHO DRAFTED THE COMPLAINT)
ALLEGED THAT HE WAS EXCLUDED FROM PARTICIPATION IN RELIGIOUS PROGRAMS
AND THAT THE EXCLUSION WAS "ARBITRARY AND UNREASONABLE . . . WITHOUT
ANY LAWFUL JUSTIFICATION."  HOLDING COUNSEL TO STANDARDS OF PLEADING
APPLIED TO OTHER PRISONERS' CLAIMS FOR RELIEF, CONCLUSIONS OF
ARBITRARINESS ARE INSUFFICIENT, E.G., WILLIAMS V. DUNBAR, 377 F.2D 505
(CA9 1967); UNITED STATES EX REL. HOGE V. BOLSINGER, 311 F.2D 215 (CA3
1962). 

/7/  "THE LAST TYPE OF WRIT-WRITER TO BE DISCUSSED WRITES WRITS FOR
ECONOMIC GAIN.  THIS GROUP IS COMPRISED OF A FEW UNSCRUPULOUS
MANIPULATORS WHO ARE INTERESTED ONLY IN ACQUIRING FROM OTHER PRISONERS
MONEY, CIGARETTES, OR MERCHANDISE PURCHASED IN THE INMATE CANTEEN. 
ONCE THEY HAVE A 'CLIENT'S' INTEREST AROUSED AND DETERMINE HIS ABILITY
TO PAY, THEY MUST KEEP HIM ON THE 'HOOK.'  THIS IS COMMONLY DONE BY
DELIBERATELY MISSTATING THE FACTS OF HIS CASE SO THAT IT APPEARS, AT
LEAST ON THE SURFACE, THAT THE INMATE IS ENTITLED TO RELIEF.  THE
DOCUMENTS DRAFTED FOR THE CLIENT CAST THE WRIT-WRITER IN THE ROLE OF A
SYMPATHETIC PROTAGONIST.  AFTER READING THEM, THE INMATE IS ELATED THAT
HE HAS FOUND SOMEONE ABLE TO PRESENT HIS CASE FAVORABLY.  HE IS WILLING
TO PAY TO MAINTAIN THE LIE THAT HAS BEEN CREATED FOR HIM."  LARSEN, A
PRISONER LOOKS AT WRIT-WRITING, 56 CALIF.L.REV.  343, 348-349 (1968). 

"WHEN DECISIONS DO NOT HELP A WRIT-WRITER, HE MAY EMPLOY A HANDFUL
OF TRICKS WHICH DAMAGE HIS IMAGE IN THE STATE COURTS.  SOME OF THE NOT
TOO SUBTLE SUBTERFUGES USED BY A SMALL MINORITY OF WRIT-WRITERS WOULD
TAX THE CREDULITY OF ANY LAWYER.  ONE WRIT-WRITER SIMPLY MADE UP HIS
OWN LEGAL CITATIONS WHEN HE RAN SHORT OF ACTUAL ONES.  IN ONE ACTION
AGAINST THE CALIFORNIA ADULT AUTHORITY INVOLVING THE APPLICATION OF
ADMINISTRATIVE LAW, ONE WRIT-WRITER USED THE FOLLOWING CITATIONS:
AESOP V. FABLES, FIRST BAPTIST CHURCH V. SALLY STANFORD, DODA V. ONE
FORTY-FOUR INCH CHEST, AND DOGOOD V. THE PLANET EARTH.  THE REFERENCES
TO THE VOLUMES AND PAGE NUMBERS OF THE NONEXISTENT PUBLICATIONS WERE
EQUALLY FANTASTIC, SUCH AS 901 PENAL REVIEW, PAGE 17,240.  TO ACCOMPANY
EACH CASE, HE COMPOSED AN ELOQUENT DECISION WHICH, IF GOOD LAW, WOULD
MAKE SELECTED ACTS OF THE ADULT AUTHORITY UNCONSTITUTIONAL.  IN TIME
THE 'DECISIONS' FREELY CIRCULATED AMONG OTHER WRIT-WRITERS, AND SEVERAL
GULLIBLE ONES BEGAN CITING THEM ALSO."  ID., AT 355. 

/8/  "(TEMPORARY RELIEF FROM PRISON CONFINEMENT IS ALWAYS AN
ALLURING PROSPECT, AND TO THE HARDENED CRIMINAL THE POSSIBILITY OF
ESCAPE LURKS IN EVERY EXCURSION BEYOND PRISON WALLS."  PRICE V.
JOHNSTON, 159 F.2D 234, 237 (CA9 1947). 

/9/  CF. PRICE V. JOHNSTON, 334 U.S. 266, 284-285 (1948), GIVING TO
THE COURTS OF APPEALS THE NECESSARY DISCRETION TO DETERMINE WHEN
PRISONERS SHOULD BE ALLOWED TO ARGUE THEIR HABEAS CORPUS APPEALS IN
PERSON: 

"IF IT IS APPARENT THAT THE REQUEST OF THE PRISONER TO ARGUE
PERSONALLY REFLECTS SOMETHING MORE THAN A MERE DESIRE TO BE FREED
TEMPORARILY FROM THE CONFINES OF THE PRISON, THAT HE IS CAPABLE OF
CONDUCTING AN INTELLIGENT AND RESPONSIBLE ARGUMENT, AND THAT HIS
PRESENCE IN THE COURTROOM MAY BE SECURED WITHOUT UNDUE INCONVENIENCE OR
DANGER, THE COURT WOULD BE JUSTIFIED IN ISSUING THE WRIT." 

HERE, THE QUESTION IS WHETHER PRISONERS CAN IN EVERY CASE BE
PERMITTED TO FILE A COMPLAINT, CONDUCT THE FULL RANGE OF PRETRIAL
DISCOVERY, AND COMMENCE A TRIAL (INCLUDING PRESUMABLY TRIAL BY JURY) AT
WHICH HE AND OTHER PRISONERS WILL APPEAR AS WITNESSES.  THE SUMMARY
REVERSAL EFFECTED HERE ENCOURAGES SUCH A RESULT WITHOUT PERMITTING THE
DISTRICT COURTS TO EXERCISE THE TYPE OF DISCRETION PERMITTED IN PRICE
AND WITHOUT PROVIDING ANY GUIDANCE FOR THEIR ACCOMMODATION OF THE
SPECIAL PROBLEMS OF PRISONER LITIGATION WITH A FAIR DETERMINATION OF
SUCH COMPLAINTS UNDER 42 U.S.C. 1983 AS ARE RIGHTFULLY FILED. 

/10/  REECE V. WASHINGTON, 310 F.2D 139 (CA9 1962); CONWAY V.
OLIVER, 429 F.2D 1307 (CA9 1970). 

/11/  R. 30. 
..END :



ADAMS V. ILLINOIS, 405 U.S. 278 


       ADAMS V. ILLINOIS

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS

        NO. 70-5038.  ARGUED DECEMBER 7, 1971-- DECIDED MARCH 6,

           1972 


PETITIONER'S PRETRIAL MOTION TO DISMISS THE INDICTMENT AGAINST HIM
BECAUSE OF THE COURT'S FAILURE TO APPOINT COUNSEL TO REPRESENT HIM AT
THE PRELIMINARY HEARING IN 1967 WAS DENIED, AND PETITIONER WAS TRIED
AND CONVICTED.  THE ILLINOIS SUPREME COURT AFFIRMED ON THE GROUND THAT
COLEMAN V. ALABAMA, 399 U.S. 1, IN WHICH THIS COURT HELD THAT A
PRELIMINARY HEARING IS A CRITICAL STAGE OF THE CRIMINAL PROCESS AT
WHICH THE ACCUSED IS CONSTITUTIONALLY ENTITLED TO ASSISTANCE OF
COUNSEL, DID NOT HAVE RETROACTIVE APPLICATION.  HELD:  THE JUDGMENT IS
AFFIRMED.  PP. 280-286. 

46 ILL.2D 200, 263 N.E.2D 490, AFFIRMED. 

MR. JUSTICE BRENNAN, JOINED BY MR. JUSTICE STEWART AND MR. JUSTICE
WHITE, CONCLUDED THAT COLEMAN V. ALABAMA, SUPRA, DOES NOT APPLY
RETROACTIVELY TO PRELIMINARY HEARINGS CONDUCTED BEFORE JUNE 22, 1970,
WHEN COLEMAN WAS DECIDED.  PP. 280-285. 

MR. CHIEF JUSTICE BURGER CONCURRED IN THE RESULT, CONCLUDING, AS SET
FORTH IN HIS DISSENT IN COLEMAN, THAT THERE IS NO CONSTITUTIONAL
REQUIREMENT THAT COUNSEL SHOULD BE PROVIDED AT PRELIMINARY HEARINGS. 
PP. 285-286. 

MR. JUSTICE BLACKMUN CONCURRED IN THE RESULT, CONCLUDING THAT
COLEMAN WAS WRONGLY DECIDED.  P. 286. 

BRENNAN, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION, IN WHICH STEWART AND WHITE, JJ., JOINED.  BURGER, C.J., FILED
AN OPINION CONCURRING IN THE RESULT, POST, P. 285.  BLACKMUN, J., FILED
A STATEMENT CONCURRING IN THE RESULT, POST, P. 286.  DOUGLAS, J., FILED
A DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED, POST, P. 286. 
POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASE. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION, IN WHICH MR. JUSTICE STEWART AND MR. JUSTICE WHITE JOIN. 

IN COLEMAN V. ALABAMA, 399 U.S. 1, DECIDED JUNE 22, 1970, WE HELD
THAT A PRELIMINARY HEARING IS A CRITICAL STAGE OF THE CRIMINAL PROCESS
AT WHICH THE ACCUSED IS CONSTITUTIONALLY ENTITLED TO THE ASSISTANCE OF
COUNSEL.  THIS CASE PRESENTS THE QUESTION WHETHER THAT CONSTITUTIONAL
DOCTRINE APPLIES RETROACTIVELY TO PRELIMINARY HEARINGS CONDUCTED PRIOR
TO JUNE 22, 1970. 

THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, CONDUCTED A PRELIMINARY
HEARING ON FEBRUARY 10, 1967, ON A CHARGE AGAINST PETITIONER OF SELLING
HEROIN.  PETITIONER WAS NOT REPRESENTED BY COUNSEL AT THE HEARING.  HE
WAS BOUND OVER TO THE GRAND JURY, WHICH INDICTED HIM.  BY PRETRIAL
MOTION HE SOUGHT DISMISSAL OF THE INDICTMENT ON THE GROUND THAT IT WAS
INVALID BECAUSE OF THE FAILURE OF THE COURT TO APPOINT COUNSEL TO
REPRESENT HIM AT THE PRELIMINARY HEARING.  THE MOTION WAS DENIED ON MAY
3, 1967, ON THE AUTHORITY OF PEOPLE V. MORRIS, 30 ILL.2D 406, 197
N.E.2D 433 (1964).  IN MORRIS THE ILLINOIS SUPREME COURT HELD THAT THE
ILLINOIS PRELIMINARY HEARING WAS NOT A CRITICAL STAGE AT WHICH THE
ACCUSED HAD A CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF COUNSEL. 
PETITIONER'S CONVICTION WAS AFFIRMED BY THE ILLINOIS SUPREME COURT,
WHOCH REJECTED PETITIONER'S ARGUMENT THAT THE LATER COLEMAN DECISION
REQUIRED REVERSAL.  THE COURT ACKNOWLEDGED THAT ITS MORRIS DECISION WAS
SUPERSEDED BY COLEMAN, /1/  BUT HELD THAT COLEMAN APPLIED ONLY TO
PRELIMINARY HEARINGS CONDUCTED AFTER JUNE 22, 1970, THE DATE COLEMAN
WAS DECIDED.  46 ILL.2D 200, 263 N.E.2D 490 (1970).  WE GRANTED
CERTIORARI LIMITED TO THE QUESTION OF THE RETROACTIVITY OF COLEMAN. 
401 U.S. 953 (1971).  WE AFFIRM. 

THE CRITERIA GUIDING RESOLUTION OF THE QUESTION OF THE RETROACTIVITY
OF NEW CONSTITUTIONAL RULES OF CRIMINAL PROCEDURE "IMPLICATE (A) THE
PURPOSE TO BE SERVED BY THE NEW STANDARDS, (B) THE EXTENT OF THE
RELIANCE BY LAW ENFORCEMENT AUTHORITIES ON THE OLD STANDARDS, AND (C)
THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A RETROACTIVE
APPLICATION OF THE NEW STANDARDS."  STOVALL V. DENNO, 388 U.S. 293, 297
(1967).  WE HAVE GIVEN COMPLETE RETROACTIVE EFFECT TO THE NEW RULE,
REGARDLESS OF GOOD-FAITH RELIANCE BY LAW ENFORCEMENT AUTHORITIES OR THE
DEGREE OF IMPACT ON THE ADMINISTRATION OF JUSTICE, WHERE THE "MAJOR
PURPOSE OF NEW CONSTITUTIONAL DOCTRINE IS TO OVERCOME AN ASPECT OF THE
CRIMINAL TRIAL THAT SUBSTANTIALLY IMPAIRS ITS TRUTH-FINDING FUNCTION
AND SO RAISES SERIOUS QUESTIONS ABOUT THE ACCURACY OF GUILTY VERDICTS
IN PAST TRIALS . . . . "  WILLIAMS V. UNITED STATES, 401 U.S. 646, 653
(1971).  EXAMPLES ARE THE RIGHT TO COUNSEL AT TRIAL, GIDEON V.
WAINWRIGHT, 372 U.S. 335 (1963); ON APPEAL, DOUGLAS V. CALIFORNIA, 372
U.S. 353 (1963); OR AT SOME FORMS OF ARRAIGNMENT, HAMILTON V. ALABAMA,
368 U.S. 52 (1961).  SEE GENERALLY STOVALL V. DENNO, SUPRA, AT 297-298;
WILLIAMS V. UNITED STATES, SUPRA, AT 653 N. 6. 

HOWEVER, "THE QUESTION WHETHER A CONSTITUTIONAL RULE OF CRIMINAL
PROCEDURE DOES OR DOES NOT ENHANCE THE RELIABILITY OF THE FACT-FINDING
PROCESS AT TRIAL IS NECESSARILY A MATTER OF DEGREE," JOHNSON V. NEW
JERSEY, 384 U.S. 719, 728-729 (1966); IT IS A "QUESTION OF
PROBABILITIES."  ID., AT 729.  THUS, ALTHOUGH THE RULE REQUIRING THE
ASSISTANCE OF COUNSEL AT A LINEUP, UNITED STATES V. WADE, 388 U.S. 218
(1967); GILBERT V. CALIFORNIA, 388 U.S. 263 (1967), IS "AIMED AT
AVOIDING UNFAIRNESS AT THE TRIAL BY ENHANCING THE RELIABILITY OF THE
FACT-FINDING PROCESS IN THE AREA OF IDENTIFICATION EVIDENCE," WE HELD
THAT THE PROBABILITIES OF INFECTING THE INTEGRITY OF THE TRUTH
DETERMINING PROCESS BY DENIAL OF COUNSEL AT THE LINEUP WERE
SUFFICIENTLY LESS THAN THE OMISSION OF COUNSEL AT THE TRIAL ITSELF OR
ON APPEAL THAT THOSE PROBABILITIES "MUST IN TURN BE WEIGHED AGAINST THE
PRIOR JUSTIFIED RELIANCE UPON THE OLD STANDARD AND THE IMPACT OF
RETROACTIVITY UPON THE ADMINISTRATION OF JUSTICE."  STOVALL V. DENNO,
SUPRA, AT 298. 

WE HOLD THAT SIMILARLY THE ROLE OF COUNSEL AT THE PRELIMINARY HEARING
DIFFERS SUFFICIENTLY FROM THE ROLE OF COUNSEL AT TRIAL IN ITS IMPACT
UPON THE INTEGRITY OF THE FACTFINDING PROCESS AS TO REQUIRE THE
WEIGHING OF THE PROBABILITIES OF SUCH INFECTION AGAINST THE ELEMENTS OF
PRIOR JUSTIFIED RELIANCE AND THE IMPACT OF RETROACTIVITY UPON THE
ADMINISTRATION OF CRIMINAL JUSTICE.  WE MAY LAY ASIDE THE FUNCTIONS OF
COUNSEL AT THE PRELIMINARY HEARING THAT DO NOT BEAR ON THE FACTFINDING
PROCESS AT TRIAL-- COUNSEL'S HELP IN PERSUADING THE COURT NOT TO HOLD
THE ACCUSED FOR THE GRAND JURY OR MEANWHILE TO ADMIT THE ACCUSED TO
BAIL.  COLEMAN, 399 U.S.,AT 9.  OF COUNSEL'S OTHER FUNCTIONS-- TO
"FASHION A VITAL IMPEACHMENT TOOL FOR USE IN CROSS-EXAMINATION OF THE
STATE'S WITNESSES AT THE TRIAL," TO "DISCOVER THE CASE THE STATE HAS
AGAINST HIS CLIENT," "MAKING EFFECTIVE ARGUMENTS FOR THE ACCUSED ON
SUCH MATTERS AS THE NECESSITY FOR AN EARLY PHYSHIATRIC EXAMINATION . .
. ," IBID.-- IMPEACHMENT AND DISCOVERY MAY MAKE PARTICULARLY
SIGNIFICANT CONTRIBUTION TO THE ENHANCEMENT OF THE FACTFINDING PROCESS,
SINCE THEY MATERIALLY AFFECT AN ACCUSED'S ABILITY TO PRESENT AN
EFFECTIVE DEFENSE AT TRIAL.  BUT BECAUSE OF LIMITATIONS UPON THE USE OF
THE PRELIMINARY HEARING FOR DISCOVERY AND IMPEACHMENT PURPOSES, COUNSEL
CANNOT BE AS EFFECTUAL AS AT TRIAL OR ON APPEAL.  THE AUTHORITY OF THE
COURT TO TERMINATE THE PRELIMINARY HEARING ONCE PROBABLE CAUSE IS
ESTABLISHED, SEE PEOPLE V. BONNER, 37 ILL.2D 553, 560, 229 N.E.2D 527,
531 (1967), MEANS THAT THE DEGREE OF DISCOVERY OBTAINED WILL VARY
DEPENDING ON HOW MUCH EVIDENCE THE PRESIDING JUDGE RECEIVES.  TOO, THE
PRELIMINARY HEARING IS HELD AT AN EARLY STAGE OF THE PROSECUTION WHEN
THE EVIDENCE ULTIMATELY GATHERED BY THE PROSECUTION MAY NOT BE
COMPLETE.  CF. S. REP. NO. 371, 90TH CONG., 1ST SESS., 33, ON AMENDING
18 U.S.C. 3060.  COUNSEL MUST ALSO AVAIL HIMSELF OF ALTERNATIVE
PROCEDURES, ALWAYS A SIGNIFICANT FACTOR TO BE WEIGHED IN THE SCALES. 
JOHNSON V. NEW JERSEY, 384 U.S.,AT 730.  ILLINOIS PROVIDES, FOR
EXAMPLE, BILLS OF PARTICULARS AND DISCOVERY OF THE NAMES OF PROSECUTION
WITNESSES.  ILL. REV. STAT., C. 38, SECS. 114-2, 114-9, 114-10 (1971). 
PRETRIAL STATEMENTS OF PROSECUTION WITNESSES MAY ALSO BE OBTAINED FOR
USE FOR IMPEACHMENT PURPOSES.  SEE, E.G., PEOPLE V. JOHNSON, 31 ILL.2D
602, 203 N.E.2D 399 (1964). 

WE ACCORDINGLY AGREE WITH THE CONCLUSION OF THE ILLINOIS SUPREME
COURT, "ON THIS SCALE OF PROBABILITIES, WE JUDGE THAT THE LACK OF
COUNSEL AT A PRELIMINARY HEARING INVOLVES LESS DANGER TO 'THE INTEGRITY
OF THE TRUTH-DETERMINING PROCESS AT TRIAL' THAN THE OMISSION OF COUNSEL
AT THE TRIAL ITSELF OR ON APPEAL.  SUCH DANGER IS NOT ORDINARILY
GREATER, WE CONSIDER, AT A PRELIMINARY HEARING AT WHICH THE ACCUSED IN
UNREPRESENTED THAN AT A PRETRIAL LINE-UP OR AT AN INTERROGATION
CONDUCTED WITHOUT PRESENCE OF AN ATTORNEY."  46 ILL.2D, AT 207, 263
N.E.2D, AT 494 /2/ 

WE TURN THEN TO WEIGHING THE PROBABILITIES THAT THE DENIAL OF
COUNSEL AT THE PRELIMINARY HEARING WILL INFECT THE INTEGRITY OF THE
FACTFINDING PROCESS AT TRIAL AGAINST THE PRIOR JUSTIFIED RELIANCE UPON
THE OLD STANDARD AND THE IMPACT OF RETROACTIVITY UPON THE
ADMINISTRATION OF JUSTICE.  WE DO NOT THINK THAT LAW ENFORCEMENT
AUTHORITIES ARE TO BE FAULTED FOR NOT ANTICIPATING COLEMAN.  THERE WAS
NO CLEAR FORESHADOWING OF THAT RULE.  A CONTRARY INFERENCE WAS NOT
UNREASONABLE IN LIGHT OF OUR DECISIONS IN HAMILTON V. ALALAMA, 368 U.S.
52, AND WHITE V. MARYLAND, 373 U.S. 59 (1963).  HAMILTON DENOMINATED
THE ARRAIGNMENT STAGE IN ALABAMA CRITICAL BECAUSE DEFENSES NOT ASSERTED
AT THAT STAGE MIGHT BE FOREVER LOST.  WHITE HELD THAT AN UNCOUNSELED
PLEA OF GUILTY AT A MARYLAND PRELIMINARY HEARING COULD NOT BE
INTRODUCED BY THE STATE AT TRIAL.  MANY STATE COURTS NOT UNREASONABLY
REGARDED HAMILTON AND WHITE AS FASHIONING LIMITED CONSTITUTIONAL RULES
GOVERNING PRELIMINARY HEARINGS.  SEE, E.G., THE DECISION OF THE
ILLINOIS SUPREME COURT IN PEOPLE V. MORRIS, 30 ILL.2D 406, 197 N.E.2D
433.  MOREOVER, A NUMBER OF COURTS, INCLUDING ALL OF THE FEDERAL COURTS
OF APPEALS HAD CONCLUDED THAT THE PRELIMINARY HEARING WAS NOT A
CRITICAL STAGE ENTITLING AN ACCUSED TO THE ASSISTANCE OF COUNSEL.  /3/
IT IS THUS CLEAR THERE HAS BEEN UNDERSTANDABLE AND WIDESPREAD RELIANCE
UPON THIS VIEW BY LAW ENFORCEMENT OFFICIALS AND THE COURTS. 

IT FOLLOWS THAT RETROACTIVE APPLICATION OF COLEMAN "WOULD SERIOUSLY
DISRUPT THE ADMINISTRATION OF OUR CRIMINAL LAWS."  JOHNSON V. NEW
JERSEY, 384 U.S.,AT 731.  AT THE VERY LEAST, THE PROCESSING OF CURRENT
CRIMINAL CALENDARS WOULD BE DISRUPTED WHILE HEARINGS WERE CONDUCTED TO
DETERMINE WHETHER THE DENIAL OF COUNSEL AT THE PRELIMINARY HEARING
CONSTITUTED HARMLESS ERROR.  CF. STOVALL V. DENNO, 388 U.S.,AT 300. 
THE TASK OF CONDUCTING SUCH HEARINGS WOULD IMMEASURABLY COMPLICATED BY
THE NEED TO CONSTRUCT A RECORD OF WHAT OCCURRED.  IN ILLINOIS, FOR
EXAMPLE, NO COURT REPORTER WAS PRESENT AT PRE-COLEMAN PRELIMINARY
HEARINGS AND THE PROCEEDINGS ARE THEREFORE NOT RECORDED.  SEE PEOPLE V.
GIVANS, 83 ILL.APP.2D 423, 228 N.E.2D 123 (1967).  IN ADDITION, RELIEF
FROM THIS CONSTITUTIONAL ERROR WOULD REQUIRE NOT MERELY A NEW TRIAL BUT
ALSO, AT LEAST IN ILLINOIS, A NEW PRELIMINARY HEARING AND A NEW
INDICTMENT.  THE IMPACT UPON THE ADMINISTRATION OF THE CRIMINAL LAW OF
THAT REQUIREMENT NEEDS NO ELABORATION.  THEREFORE, HERE ALSO, "(THE
UNUSUAL FORCE OF THE COUNTERVAILING CONSIDERATIONS STRENGTHENS OUR
CONCLUSION IN FAVOR OF PROSPECTIVE APPLICATION."  STOVALL V. DENNO,
SUPRA, AT 299. 

WE DO NOT REGARD PETITIONER'S CASE AS CALLING FOR A CONTRARY
CONCLUSION MERELY BECAUSE HE MADE A PRETRIAL MOTION TO DISMISS THE
INDICTMENT, OR BECAUSE HIS CONVICTION IS BEFORE US ON DIRECT REVIEW. 
"(THE FACTORS OF RELIANCE AND BURDEN ON THE ADMINISTRATION OF JUSTICE
(ARE) ENTITLED TO SUCH OVERRIDING SIGNIFICANCE AS TO MAKE (THOSE)
DISTINCTIONS) UNSUPPORTABLE."  STOVALL V. DENNO, SUPRA, AT 300-301. 
PETITIONER MAKES NO CLAIM OF ACTUAL PREJUDICE CONSTITUTING A DENIAL OF
DUE PROCESS.  SUCH A CLAIM WOULD ENTITLE HIM TO A HEARING WITHOUT
REGARD TO TODAY'S HOLDING THAT COLEMAN IS NOT TO BE RETROACTIVELY
APPLIED.  SEE PEOPLE V. BERNATOWICZ, 35 ILL.2D 192, 198, 220 N.E.2D
745, 748 (1966); PEOPLE V. BONNER, 37 ILL.2D 553, 561, 229 N.E.2D 527,
532 (1967). 

              AFFIRMED. 

/1/  THE ILLINOIS SUPREME COURT STATED, 46 ILL.2D, AT 205-206, 263
N.E.2D, AT 493, 

"A PRELIMINARY HEARING IN ALABAMA, AS IN ILLINOIS, HAS THE PURPOSE
OF DETERMINING WHETHER THERE IS PROBABLE CAUSE TO BELIEVE AN OFFENSE
HAS BEEN COMMITTED BY THE DEFENDANT . . . . IN BOTH STATES THE HEARING
IS NOT A REQUIRED STEP IN THE PROCESS OF PROSECUTION, AS THE PROSECUTOR
MAY SEEK AN INDICTMENT DIRECTLY FROM THE GRAND JURY, THEREBY
ELIMINATING THE PROCEEDING.  . . . IN NEITHER STATE IS A DEFENDANT
REQUIRED TO OFFER DEFENSES AT THE HEARING AT THE RISK OF BEING
PRECLUDED FROM RAISING THEM AT THE TRIAL ITSELF.  . . . WE CONCLUDE
THAT THE PRELIMINARY HEARING PROCEDURES OF ALABAMA AND ILLINOIS ARE
SUBSTANTIALLY ALIKE AND WE MUST CONSIDER BECAUSE OF COLEMAN V. ALABAMA
. . . THAT A PRELIMINARY HEARING CONDUCTED PURSUANT TO SECTION 109-3 OF
THE CRIMINAL CODE (ILL. REV. STAT. 1969, CH. 38, PAR. 109-3) IS A
'CRITICAL STAGE' IN THIS STATE'S CRIMINAL PROCESS SO AS TO ENTITLE THE
ACCUSED TO THE ASSISTANCE OF COUNSEL." 

A RIGHT TO A PRELIMINARY HEARING HAS BEEN CONSTITUTIONALLY
ESTABLISHED, EFFECTIVE JULY 1, 1971.  ILLINOIS CONSTITUTION OF 1970,
ART. I, SEC. 7. 

/2/  ACCORD:  PHILLIPS V. NORTH CAROLINA, 433 F.2D 659, 662 (1970),
WHERE THE COURT OF APPEALS FOR THE FOURTH CIRCUIT OBSERVED: 

"TO BE SURE, IF A PRELIMINARY HEARING IS HELD, THE ACCUSED GAINS
IMPORTANT RIGHTS AND ADVANTAGES THAT CAN BE EFFECTIVELY EXERCISED ONLY
THROUGH HIS ATTORNEY.  COUNSEL'S FUNCTION, HOWEVER, DIFFERS FROM HIS
FUNCTION AT TRIAL.  BROADLY SPEAKING, HIS ROLE AT THE PRELIMINARY
HEARING IS TO ADVISE, OBSERVE, DISCOVER THE FACTS, AND PROBE THE
STATE'S CASE.  IN THIS RESPECT HE SERVES IN SOMEWHAT THE SAME CAPACITY
AS COUNSEL AT LINEUPS AND INTERROGATIONS, WHICH ARE BOTH PRETRIAL
STAGES OF CRIMINAL PROCEEDINGS WHERE THE RIGHT TO COUNSEL HAS NOT BEEN
HELD RETROACTIVE." 

/3/  PAGAN CANCEL V. DELGADO, 408 F.2D 1018 (CA1 1969); UNITED
STATES EX REL. COOPER V. REINCKE, 333 F.2D 608 (CA2 1964); UNITED
STATES EX REL. BUDD V. MARONEY, 398 F.2D 806 (CA3 1968); DETORO V.
PEPERSACK, 332 F.2D 341 (CA4 1964); WALKER V. WAINWRIGHT, 409 F.2D 1311
(CA5 1969); WADDY V. HEER, 383 F.2D 789 (CA6 1967); BUTLER V. BURKE,
360 F.2D 118 (CA7 1966); POPE V. SWENSON, 395 F.2D 321 (CA8 1968);
WILSON V. HARRIS, 351 F.2D 840 (CA9 1965); LATHAM V. CROUSE, 320 F.2D
120 (CA10 1963); HEADEN V. UNITED STATES, 115 U.S.APP.D.C. 81, 317 F.2D
145 (1963). 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT BUT MAINTAIN THE VIEW EXPRESSED IN MY DISSENT
IN THE RESULT BUT MAINTAIN THE VIEW EXPRESSED IN MY DISSENT IN COLEMAN
V. ALABAMA, 399 U.S. 1, 21 (1970), THAT WHILE COUNSEL SHOULD BE
PROVIDED AT PRELIMINARY HEARINGS AS A MATTER OF SOUND POLICY AND
JUDICIAL ADMINISTRATION, THERE IS NO CONSTITUTIONAL REQUIREMENT THAT IT
BE DONE.  AS I NOTED IN COLEMAN, THE CONSTITUTIONAL COMMAND APPLIES TO
"CRIMINAL PROSECUTIONS," NOT TO THE SHIFTING NOTION OF "CRITICAL
STAGES."  NOR CAN I JOIN IN THE VIEW THAT IT IS A FUNCTION OF
CONSTITUTIONAL ADJUDICATION TO ASSURE THAT DEFENSE COUNSEL CAN "FASHION
A VITAL IMPEACHMENT TOOL FOR USE IN CROSS-EXAMINATION OF THE STATE'S
WITNESSES AT THE TRIAL" OR "DISCOVER THE CASE THE STATE HAS AGAINST HIS
CLIENT."  399 U.S.,AT 9.  NOTHING COULD BETTER ILLUSTRATE THE EXTRA
CONSTITUTIONAL SCOPE OF COLEMAN THAN THE INTERPRETATION OF IT NOW TO
EXPLAIN WHY WE DO NOT MAKE IT "RETROACTIVE."     MR. JUSTICE BLACKMUN,
CONCURRING IN THE RESULT. 

INASMUCH AS I FEEL THAT COLEMAN V. ALABAMA, 399 U.S. 1 (1970), WAS
WRONGLY DECIDED, I CONCUR IN THE RESULT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MARSHALL CONCURS,
DISSENTING. 

UNTIL LINKLETTER V. WALKER, 381 U.S. 618 (1965), THE COURT
TRADITIONALLY APPLIED NEW CONSTITUTIONAL CRIMINAL PROCEDURE STANDARDS
TO CASES FINALIZED AND POLICE PRACTICES OPERATIVE BEFORE THE
PROMULGATION OF THE NEW RULES.  /1/  LINKLETTER, HOWEVER, WAS THE
CRADLE OF A NEW DOCTRINE OF NONRETROACTIVITY WHICH EXEMPTS FROM RELIEF
THE EARLIER VICTIMS OF UNCONSTITUTIONAL POLICE PRACTICES.  I HAVE
DISAGREED ON NUMEROUS OCCASIONS WITH APPLICATIONS OF VARIOUS BRANDS OF
THIS DOCTRINE AND I CONTINUE MY DISSENT IN THIS CASE.  /2/  MY OWN VIEW
IS THAT EVEN-HANDED JUSTICE REQUIRES EITHER PROSPECTIVITY ONLY /3/  OR
COMPLETE RETROACTIVITY.  TO ME THERE IS SOMETHING INHERENTLY INVIDIOUS
AS MR. JUSTICE HARLAN PHRASED IT, IN "(SIMPLY FISHING ONE CASE FROM THE
STREAM OF APPELLATE REVIEW, USING IT AS A VEHICLE FOR PRONOUNCING NEW
CONSTITUTIONAL STANDARDS, AND THEN PERMITTING A STREAM OF SIMILAR CASES
SUBSEQUENTLY TO FLOW BY UNAFFECTED BY THAT NEW RULE . . . . "  MACKEY
V. UNITED STATES, 401 U.S. 667, 679 (1971) (SEPARATE OPINION).  I AGREE
WITH HIS CRITIQUE, ID., AT 695, THAT THE PURPORTED DISTINCTION BETWEEN
THOSE RULES THAT ARE DESIGNED TO IMPROVE THE FACTFINDING PROCESS AND
THOSE DESIGNED TO FURTHER OTHER VALUES WAS "INHERENTLY INTRACTABLE" AND
TO ILLUSTRATE HIS POINT HE ADVERTED TO THE COURT'S DIFFICULTY IN
RECONCILING WITH ITS RULE SUCH NONRETROACTIVITY CASES AS JOHNSON V. NEW
JERSEY, 384 U.S. 719 (1966); STOVALL V. DENNO, 388 U.S. 293 (1967), AND
DESTEFANO V. WOODS, 392 U.S. 631 (1968), ALL OF WHICH HELD
NONRETROACTIVE DECISIONS DESIGNED, IN PART, TO ENHANCE THE INTEGRITY OF
THE FACTFINDING PROCESS.  HE ALSO QUESTIONED THE WORKABILITY OF ANY
RULE WHICH REQUIRES A GUESS AS TO "WHETHER A PARTICULAR DECISION HAS
REALLY ANNOUNCED A 'NEW' RULE AT ALL OR WHETHER IT HAS SIMPLY APPLIED A
WELL-ESTABLISHED CONSTITUTIONAL PRINCIPLE."  MACKEY V. UNITED STATES,
SUPRA, AT 695; DESIST V. UNITED STATES, 394 U.S. 244, 263 (1969).  FOR
EXAMPLE, AS I SUGGEST INFRA, AT 293-295, A SERIOUS QUESTION ARISES IN
THIS CASE WHETHER COLEMAN V. ALABAMA, 399 U.S. 1 (1970), SHOULD HAVE
BEEN FULLY ANTICIPATED BY STATE JUDICIAL AUTHORITIES.  /4/ 

ADDITIONALLY, IT IS CURIOUS THAT THE PLURALITY RULE IS SENSITIVE TO
"REASONABLE RELIANCE" ON PRIOR STANDARDS BY LAW ENFORCEMENT AGENCIES
BUT IS UNCONCERNED ABOUT THE UNFAIRNESS OF ARBITRARILY GRANTING RELIEF
TO COLEMAN BUT DENYING IT TO ADAMS. 

GIVEN MY DISAGREEMENT WITH THE PLURALITY'S RULE, I AM RELUCTANT EVEN
TO ATTEMPT TO APPLY IT, BUT EVEN BY ITS OWN TERMS, THE BALANCING
APPROACH WOULD APPEAR TO REQUIRE THAT WE HOLD COLEMAN RETROACTIVE. 
THIS CONCLUSION REINFORCES MY FEAR THAT THE PROCESS IS TOO IMPRECISE AS
A NEUTRAL GUIDE FOR EITHER THIS COURT OR THE LOWER COURTS AND WILL
INVARIABLY PERMIT RETROACTIVITY DECISIONS TO TURN ON PREDILECTIONS, NOT
PRINCIPLES. 

 I 

IN APPLYING THE RULE, I AM FIRST TROUBLED BY THE PLURALITY'S
ADOPTION OF THE FINDING OF THE COURT BELOW THAT:  "ON (THE) SCALE OF
PROBABILITIES, WE JUDGE THAT THE LACK OF COUNSEL AT A PRELIMINARY
HEARING INVOLVES LESS DANGER TO 'THE INTEGRITY OF THE TRUTH-DETERMINING
PROCESS AT TRIAL' THAN THE OMISSION OF COUNSEL AT THE TRIAL ITSELF OR
ON APPEAL."  ANTE, AT 282-283.  THE SAME MIGHT HAVE BEEN SAID OF THE
RIGHT TO COUNSEL AT SENTENCING, MEMPA V. RHAY, 389 U.S. 128 (1967), AT
CERTAIN ARRAIGNMENTS, HAMILTON V. ALABAMA, 368 U.S. 52 (1961), OR AT
PRELIMINARY HEARINGS WHERE GUILTY PLEAS WERE TAKEN, WHITE V. MARYLAND,
373 U.S. 59 (1963), ALL OF WHICH HAVE BEEN HELD RETROACTIVE.  /5/ 

RATHER THAN REACHING FOR THESE ANALOGIES, HOWEVER, THE PLURALITY
SUGGESTS THAT THE DANGER TO THE INTEGRITY OF THE TRUTH-DETERMINING
PROCESS IS NO GREATER HERE THAN AT A PRETRIAL LINEUP OR AT AN
INTERROGATION CONDUCTED WITHOUT COUNSEL.  IN RELYING ON THESE
ANALOGIES, THE PLURALITY GIVES SHORT SHRIFT TO THE ARGUMENT THAT "IN
PRACTICE (THE PRELIMINARY) HEARING MAY PROVIDE THE DEFENSE WITH THE
MOST VALUABLE DISCOVERY TECHNIQUE AVAILABLE TO HIM," WHEELER V. FLOOD,
269 F.SUPP.  194, 198 (EDNY 1967), AN OBJECTIVE WHICH IS NOT SO READILY
ACHIEVABLE AT LINEUPS AND INTERROGATIONS AT WHICH COUNSEL SERVES ONLY A
PROTECTIVE FUNCTION.  THE STATE'S ACCESS TO SUPERIOR INVESTIGATIVE
RESOURCES AND ITS ABILITY TO KEEP ITS CASE SECRET UNTIL TRIAL NORMALLY
PUTS THE DEFENDANT AT A CLEAR DISADVANTAGE.  /6/  IN LIGHT OF THIS
DISPARITY, ONE IMPORTANT SERVICE THE PRELIMINARY HEARING PERFORMS IS TO
PERMIT COUNSEL TO PENETRATE THE EVIDENCE OFFERED BY THE PROSECUTION AT
THE HEARING, TO TEST ITS STRENGTHS AND WEAKNESSES (WITHOUT THE PRESENCE
OF A JURY), TO LEARN THE NAMES AND ADDRESSES OF WITNESSES, TO FOCUS
UPON THE KEY FACTUAL ISSUES IN THE UPCOMING TRIAL, AND TO PRESERVE
TESTIMONY FOR IMPEACHMENT PURPOSES.  THE ALTERNATIVE DISCOVERY
TECHNIQUES SUGGESTED NOW BY THE PLURALITY ARE PUNY IN COMPARISON.  A
BILL OF PARTICULARS CAN USUALLY REACH ONLY PROSECUTION WITNESSES'
NAMES, AND IT MAY BE COLD COMFORT TO DEFENSE COUNSEL TO LEARN THAT HE
CAN OBTAIN PRETRIAL STATEMENTS OF PROSECUTION WITNESSES INASMUCH AS
SUCH STATEMENTS ARE OFTEN PREPARED FROM THE STATE'S VIEWPOINT AND HAVE
NOT BEEN SUBJECTED TO CROSS-EXAMINATION.  AND IN MANY STATES SUCH
STATEMENTS ARE NOT DISCOVERABLE. 

FINALLY, WHEN READ IN LIGHT OF COLEMAN'S EXALTATION OF THE VIRTUES
OF COUNSELED PRELIMINARY HEARINGS, THE PRESENT LANGUAGE OF THE
PLURALITY MAY LEND ITSELF TO A "CREDIBILITY GAP" BETWEEN IT AND THOSE
INVOLVED IN THE ADMINISTRATION OF THE CRIMINAL PROCESS.  "PLAINLY,"
SAID THE COLEMAN COURT, "THE GUIDING HAND OF COUNSEL AT THE PRELIMINARY
HEARING IS ESSENTIAL TO PROTECT THE INDIGENT ACCUSED AGAINST AN
ERROENOUS OR IMPROPER PROSECUTION," COLEMAN V. ALABAMA, SUPRA, AT 9,
AND:  "THE INABILITY OF THE INDIGENT ACCUSED ON HIS OWN TO REALIZE
THESE ADVANTAGES OF A LAWYER'S ASSISTANCE COMPELS THE CONCLUSION THAT
THE ALABAMA PRELIMINARY HEARING IS A 'CRITICAL STAGE' OF THE STATE'S
CRIMINAL PROCESS AT WHICH THE ACCUSED IS 'AS MUCH ENTITLED TO SUCH AID
(OF COUNSEL) . . . AS AT THE TRIAL ITSELF.'"  ID., AT 9-10.  IT WILL
NOW APPEAR SOMEWHAT ANOMALOUS THAT THE RIGHT TO COUNSEL AT A
PRELIMINARY HEARING IS FUNDAMENTAL ENOUGH TO BE INCORPORATED INTO THE
FOURTEENTH AMENDMENT BUT NOT FUNDAMENTAL ENOUGH TO WARRANT APPLICATION
TO THE VICTIMS OF PREVIOUS UNCONSTITUTIONAL CONDUCT.  /7/

II 

I ALSO BELIEVE THAT THE PLURALITY'S CASE FOR ESTABLISHING GOOD-FAITH
RELIANCE ON "THE OLD STANDARDS" BY STATE JUDICIAL SYSTEMS IGNORES
IMPORTANT DEVELOPMENTS IN THE RIGHT-TO-COUNSEL CASES PRIOR TO COLEMAN. 
FIRST OF ALL, NO DECISION OF THIS COURT HAD HELD THAT COUNSEL NEED NOT
BE AFFORDED AT THE PRELIMINARY HEARING STAGE.  THEREFORE, TO BUILD A
CASE FOR GOOD-FAITH RELIANCE THE STATE MUST WRING FROM OUR DECISION THE
NEGATIVE IMPLICATION THAT UNCOUNSELED PROBABLE-CAUSE HEARINGS WERE
PERMISSIBLE.  SUCH NEGATIVE IMPLICATIONS ARE FOUND, SAYS THE PLURALITY,
IN HAMILTON V. ALABAMA, 368 U.S. 52 (1961), AND WHITE V. MARYLAND, 373
U.S. 59 (1963), CASES REVERSING CONVICTIONS OBTAINED THROUGH THE USE AT
TRIAL OF UNCOUNSELED GUILTY PLEAS ENTERED AT PRELIMINARY HEARINGS. 
NEITHER OF THOSE DECISIONS, HOWEVER, FACED THE QUESTION OF WHETHER
REVERSAL WAS REQUIRED ON THE FACTS OF THE INSTANT CASE.  AND, THOUGH I
HAVE STUDIED THESE TWO SHORT OPINIONS, I AM UNABLE, AS IS THE
PLURALITY, TO DIVINE ANY HIDDEN MESSAGE TO LAW ENFORCEMENT AGENCIES
THAT WE WOULD PERMIT THE DENIAL OF COUNSEL AT PRELIMINARY HEARINGS
WHERE GUILTY PLEAS WERE NOT TAKEN.  RATHER, THESE CASES REINFORCE, IN
MY MIND, THE IMPORTANCE OF COUNSEL AT EVERY STAGE IN THE CRIMINAL
PROCESS.  IN ANY EVENT, BY THE TIME COLEMAN CAME DOWN, IT WAS CLEAR, AS
MR. JUSTICE HARLAN OPINED, ALBEIT WITH SOME REGRET, THAT OUR HOLDING
WAS AN INEVITABLE CONSEQUENCE OF PRIOR CASE LAW: 

"IF I FELT FREE TO CONSIDER THIS CASE UPON A CLEAN SLATE I

  WOULD HAVE VOTED TO AFFIRM THESE CONVICTIONS.  BUT-- IN LIGHT OF

  THE LENGTHS TO WHICH THE RIGHT TO APPOINTED COUNSEL HAS BEEN

  CARRIED IN RECENT DECISIONS OF THIS COURT, SEE MIRANDA V.

  ARIZONA, 384 U.S. 436 (1966); UNITED STATES V. WADE, 388 U.S. 218

  (1967); GILBERT V. CALIFORNIA, 388 U.S. 263 (1967); MATHIS V.

  UNITED STATES, 391 U.S. 1 (1968); AND OROZCO V. TEXAS, 394 U.S.

  324 (1969)-- I CONSIDER THAT COURSE IS NOT OPEN TO ME WITH DUE

  REGARD FOR THE WAY IN WHICH THE ADJUDICATORY PROCESS OF THIS

  COURT, AS I CONCEIVE IT, SHOULD WORK.  . . .

        . .          .          . 

     "IT WOULD INDEED BE STRANGE WERE THIS COURT, HAVING HELD A

  SUSPECT OR AN ACCUSED ENTITLED TO COUNSEL AT SUCH PRETRIAL STAGES

  AS 'IN-CUSTODY' POLICE INVESTIGATION, WHETHER AT THE STATION

  HOUSE (MIRANDA) OR EVEN IN THE HOME (OROZCO), NOW TO HOLD THAT HE

IS LEFT TO FEND FOR HIMSELF AT THE FIRST FORMAL CONFRONTATION IN

  THE COURTROOM."  COLEMAN V. ALABAMA, SUPRA, AT 19-20 (SEPARATE

  OPINION).  /8/

THUS, IN THE INSTANT CASE, AT THE TIMES RELEVANT, THE STATE SHOULD HAVE
FORESEEN THAT THE RIGHT TO COUNSEL ATTACHED TO THE PROBABLE-CAUSE
HEARING. 

 III 

I ALSO DISAGREE THAT "(THE IMPACT UPON THE ADMINISTRATION OF THE
CRIMINAL LAW OF (COLEMAN RETROACTIVITY) NEEDS NO ELABORATION."  ANTE,
AT 284.  IN THE 19 MONTHS SINCE COLEMAN WAS DECIDED ALL NEW
PROSECUTIONS HAVE PRESUMABLY FOLLOWED IT AND WE THEREFORE NEED ONLY BE
CONCERNED, FOR IMPACT PURPOSES, WITH THOSE STATE PROCEEDINGS IN WHICH A
PRELIMINARY HEARING WAS HELD PRIOR TO JUNE 1970.  INASMUCH AS THE
MEDIAN STATE SENTENCE SERVED BY FELONS WHEN THEY ARE FIRST RELEASED IS
ABOUT 20.9 MONTHS, /9/  MOST PRE-COLEMAN SENTENCES WOULD NOW BE SERVED
AND AS A PRACTICAL MATTER THESE FORMER PRISONERS WOULD NOT SEEK
JUDICIAL REVIEW.  MOREOVER, WE MAY EXCLUDE FROM OUR CONSIDERATION THOSE
16 OR MORE STATES THAT PRIOR TO COLEMAN ROUTINELY APPOINTED COUNSEL AT
OR PRIOR TO PRELIMINARY HEARINGS.  SEE AMERICAN BAR ASSOCIATION,
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, PROVIDING DEFENSE SERVICES
SEC. 5.1 (APPROVED DRAFT 1968).  ADDITIONALLY, WE MAY EXCLUDE FROM
CONSIDERATION THE POSSIBILITY OF COLLATERAL CHALLENGES BY FEDERAL
PRISONERS INASMUCH AS COUNSEL HAVE ROUTINELY BEEN PRESENT AT
PRELIMINARY HEARINGS BEFORE FEDERAL COMMISSIONERS.  /10/  SEE FED. RULE
CRIM. PROC. 5(B). 

WHILE THERE ARE SOME CURRENT PRISONERS WHO MIGHT CHALLENGE THEIR
CONFINEMENTS IF COLEMAN WERE HELD RETROSPECTIVE, MANY OF THESE ATTACKS
WOULD PROBABLY FAIL UNDER THE HARMLESS-ERROR RULE OF CHAPMAN V.
CALIFORNIA, 386 U.S. 18 (1967).  THE PLURALITY OPINION SUGGESTS THAT
CONDUCTING SUCH HARMLESS-ERROR PROCEEDINGS WOULD BE ONEROUS.  ONE
REASON GIVEN IS THAT IN ILLINOIS, FOR EXAMPLE, PRELIMINARY HEARINGS
WERE NOT RECORDED BEFORE COLEMAN.  THAT ASSERTION MAY NOT BE ENTIRELY
ACCURATE IN LIGHT OF THE FACT THAT THIS VERY RECORD CONTAINS A
TRANSCRIPT OF ADAMS' PRELIMINARY HEARING.  PERHAPS, AS THE RESPONDENT
SEEMS TO CONCEDE, /11/  TRANSCRIPTS WERE MADE AVAILABLE IN OTHER
ILLINOIS CASES.  THAT IS THE MORE REASONABLE ASSUMPTION IN LIGHT OF OUR
HOLDING IN ROBERTS V. LAVALLEE, 389 U.S. 40 (1967), THAT THE STATE MUST
PROVIDE A PRELIMINARY HEARING TRANSCRIPT TO AN INDIGENT IN EVERY
CIRCUMSTANCE IN WHICH THE MORE AFFLUENT ACCUSED COULD OBTAIN ONE. 

EVEN WHERE A TRANSCRIPT WAS NOT AVAILABLE, HOWEVER, A PRISONER MIGHT
BE ABLE TO SHOW AT AN EVIDENTIARY HEARING THAT HE WAS PREJUDICED BY A
PARTICULAR NEED FOR DISCOVERY, BY THE INABILITY TO PRESERVE THE
TESTIMONY OF EITHER AN ADVERSE OR FAVORABLE WITNESS, OR BY THE
INABILITY TO SECURE HIS RELEASE ON BAIL IN ORDER TO ASSIST IN THE
PREPARATION OF HIS DEFENSE.  /12/  COURTS ARE ACCUSTOMED, OF COURSE, TO
ASSESSING CLAIMS OF PREJUDICE WITHOUT THE AID OF TRANSCRIPTS OF
PREVIOUS PROCEEDINGS, SUCH AS IS REQUIRED BY JACKSON V. DENNO, 378 U.S.
368 (1964), OR TOWNSEND V. SAIN, 372 U.S. 293 (1963).  INDEED, IN
COLEMAN WE REMANDED FOR A DETERMINATION OF WHETHER THE FAILURE TO
APPOINT COUNSEL HAD BEEN HARMLESS ERROR.  399 U.S.,AT 11.  NOT EVERY
COLEMAN CLAIM WOULD WARRANT AN EVIDENTIARY HEARING.  MANY ATTACKS MIGHT
BE DISPOSED OF SUMMARILY, SUCH AS A CHALLENGE TO A CONVICTION RESULTING
FROM A COUNSELED GUILTY PLEA ENTERED BEFORE ANY PREJUDICE HAD
MATERIALIZED FROM AN UNCOUNSELED PRELIMINARY HEARING.  SEE PROCUNIER V.
ATCHLEY, 400 U.S. 446 (1971). 

EVEN STOVALL V. DENNO, 388 U.S.,AT 299, THE ANALOGY FREQUENTLY
INVOKED BY THE PLURALITY, HELD OUT THE POSSIBILITY OF COLLATERAL RELIEF
IN CASES WHERE PRISONERS COULD SHOW THAT THEIR LINEUPS HAD IMPOSED
"SUCH UNFAIRNESS THAT (THEY) INFRINGED (THEIR) RIGHT TO DUE PROCESS OF
LAW."  CONDUCTING COLEMAN HARMLESS-ERROR HEARINGS WOULD NOT APPEAR TO
BE ANY MORE BURDENSOME ON THE ADMINISTRATION OF CRIMINAL JUSTICE THAN
HAVE STOVALL "FUNDAMENTAL FAIRNESS" POST-CONVICTION PROCEEDINGS. 

IN ANY EVENT, WHATEVER LITIGATION MIGHT FOLLOW A HOLDING OF COLEMAN
RETROSPECTIVITY MUST BE CONSIDERED PART OF THE PRICE WE PAY FOR FORMER
FAILURES TO PROVIDE FAIR PROCEDURES. 

/1/  E.G., ESKRIDGE V. WASHINGTON PRISON BOARD, 357 U.S. 214 (1958);
GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963); JACKSON V. DENNO, 378 U.S.
368 (1964), (SEE ALSO DESIST V. UNITED STATES, 394 U.S. 244, 250 N. 15
(1969)); RECK V. PATE, 367 U.S. 433 (1961).     /2/  LINKLETTER V.
WALKER, 381 U.S. 618, 640 (1965); TEHAN V. SHOTT, 382 U.S. 406, 419
(1966); JOHNSON V. NEW JERSEY, 384 U.S. 719, 736 (1966); STOVALL V.
DENNO, 388 U.S. 293, 302 (1967); DESTEFANO V. WOODS, 392 U.S. 631, 635
(1968); DESIST V. UNITED STATES, 394 U.S. 244, 255 (1969); HALLIDAY V.
UNITED STATES, 394 U.S. 831, 835 (1969); MACKEY V. UNITED STATES, 401
U.S. 667, 713 (1971). 

/3/  IT WAS SUGGESTED IN STOVALL V. DENNO, SUPRA, AT 301, THAT A
PROSPECTIVE-ONLY HOLDING WOULD VIOLATE THE ART. III REQUIREMENT OF CASE
OR CONTROVERSY.  BUT SEE ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL
EXAMINERS, 375 U.S. 411, 422 (1964), WHERE THE COURT EXEMPTED THE
PETITIONER FROM ITS HOLDING.  SEE ALSO JOHNSON V. NEW JERSEY, SUPRA, AT
733. 

/4/ WHILE I SUBSCRIBE TO MANY OF THE RESERVATIONS EXPRESSED BY MR.
JUSTICE HARLAN, I NONETHELESS FIND HIS ALTERNATIVE RULE OF
RETROSPECTIVITY UNSATISFACTORY.  IN MACKEY V. UNITED STATES, 401 U.S.
667, 675 (1971) (SEPARATE OPINION), HE SUGGESTED THAT CONSTITUTIONAL
DECISIONS BE RETROACTIVE AS TO ALL NONFINAL CONVICTIONS PENDING AT THE
TIME OF THE PARTICULAR HOLDINGS, BUT THAT PRISONERS SEEKING HABEAS
RELIEF SHOULD GENERALLY BE TREATED ACCORDING TO THE LAW PREVAILING AT
THE TIME OF THEIR CONVICTIONS.  IT IS ON THIS LATTER SCORE THAT I AM
TROUBLED.  SURELY IT WOULD BE NO MORE FACILE A TASK TO UNEARTH THE
STATE OF LAW OF YEARS PAST THAN IT IS TO ASSIGN, UNDER THE PLURALITY'S
TEST, A DEGREE OF REASONABLENESS TO RELIANCE ON OLDER STANDARDS BY LAW
ENFORCEMENT AGENCIES.  WHERE THE QUESTION HAS ARISEN IN THIS COURT, WE
HAVE TREATED HABEAS PETITIONERS BY THE MODERN LAW, NOT BY OLDER RULES. 
SEE RECK V. PATE, 367 U.S. 433 (1961) (HABEAS PERMITTED ON BASIS OF
CURRENT LAW TO RELEASE PRISONER CONVICTED IN 1936).  SEE ALSO GIDEON V.
WAINWRIGHT, 372 U.S. 335 (1963), AND JACKSON V. DENNO, 378 U.S. 368
1964), ANNOUNCING NEW RULES IN HABEAS CASES.  MOREOVER, AS HAS BEEN
CONCLUDED BY PROFESSOR SCHWARTZ, THE DRAWING OF A BRIGHT LINE BETWEEN
FEDERAL REVIEW THROUGH HABEAS AND CERTIORARI WOULD BE UNJUSTIFIED: 

"WHERE FEDERAL REVIEW OF THE CONSTITUTIONALITY OF STATE CRIMINAL
PROCEEDINGS IS CONCERNED, THE MAKING OF SO SHARP A DISTINCTION BETWEEN
REVIEW ON CERTIORARI AND HABEAS CORPUS IS UNWARRANTED.  THERE IS OFTEN
NO SIGNIFICANT DIFFERENCE WITH RESPECT TO AGE AND POTENTIAL STALENESS
BETWEEN THE TWO TYPES OF CASES.  RATHER THAN COMING YEARS AFTER THE
CONVICTION IS FINAL, HABEAS CORPUS IS OFTEN BUT A ROUTINE STEP IN THE
CRIMINAL DEFENSE PROCESS-- THE NORMAL STEP TAKEN AFTER CERTIORARI HAS
BEEN DENIED.  SOMETIMES, IT ACTUALLY REPLACES CERTIORARI, FOR IN FAY V.
NOIA (372 U.S. 391 (1963)) THE SUPREME COURT ADVISED CRIMINAL
DEFENDANTS TO SKIP CERTIORARI AND TO PETITION DIRECTLY TO THE FEDERAL
DISTRICT COURT FOR HABEAS CORPUS.  EVEN IN SITUATIONS IN WHICH A
DEFENDANT GOES THROUGH ALL THE DIRECT REVIEW STEPS, IT IS OFTEN NOTHING
MORE THAN FORTUITOUS CIRCUMSTANCE WHICH DETERMINES WHETHER HIS CASE IS
STILL ON DIRECT REVIEW OR IS ON COLLATERAL ATTACK WHEN THE NEW DECISION
COMES DOWN. 

"THE DIFFERENCE BETWEEN REVIEW ON CERTIORARI AND HABEAS CORPUS SEEMS
EVEN LESS SIGNIFICANT WHEN WE LOOK TO FUNCTION AND ACTUAL OPERATION. 
ALTHOUGH IT IS SOMETIMES CONSIDERED THE 'NORMAL' METHOD FOR OBTAINING
FEDERAL REVIEW OF STATE CONVICTIONS, CERTIORARI DOES NOT PROVIDE, AS
THE COURT REMARKED IN FAY V. NOIA, 'A NORMAL APPELLATE CHANNEL IN ANY
SENSE COMPARABLE TO THE WRIT OF ERROR,' FOR THE COURT MUST LIMIT ITS
JURISDICTION TO QUESTIONS THAT HAVE SIGNIFICANCE BEYOND THE IMMEDIATE
CASE.  HABEAS CORPUS, ON THE OTHER HAND, FACILITATES THE COURT'S TASK
IN THOSE CASES IT DOES TAKE BY PROVIDING A RECORD FOCUSED EXCLUSIVELY
ON THE FEDERAL CONSTITUTIONAL QUESTION.  HABEAS CORPUS HAS THUS BECOME
THE PRIMARY VEHICLE FOR IMMEDIATE FEDERAL REVIEW OF STATE CONVICTIONS. 
FURTHER, THIS DEVELOPMENT HAS RESULTED IN A GRADUAL SHRINKING OF WHAT
WERE ONCE SIGNIFICANT OPERATIONAL DIFFERENCES BETWEEN REVIEW ON
CERTIORARI AND HABEAS CORPUS, SUCH AS THE RELATIONSHIP TO THE STATE
PROCEEDING, THE DEGREE OF INDEPENDENT FACTFINDING AUTHORITY, AND THE
SIGNIFICANCE OF THE DEFENDANT'S VIOLATION OF STATE PROCEDURAL RULES. 
FROM BOTH THE FUNCTIONAL AND THE OPERATIONAL STANDPOINTS, THEN, IT IS
JUSTIFIABLE TO CONCLUDE THAT 'THE DISTINCTIONS BETWEEN HABEAS CORPUS
PROCEEDINGS AND DIRECT REVIEW ARE LARGELY ILLUSORY.' 

"IN ADDITION, DRAWING A LINE BETWEEN REVIEW (ON) CERTIORARI AND
HABEAS CORPUS UNDERCUTS THE SUPREME COURT'S BYPASS SUGGESTION IN FAY V.
NOIA.  IF A DEFENDANT HAS DOUBTS ABOUT THE RETROACTIVITY OF ANY CLAIM
WHICH MIGHT BOTH AFFECT HIM AND BE SUBJECT TO COURT REVIEW IN THE
FORESEEABLE FUTURE, HE WILL BE WELL ADVISED ALWAYS TO IGNORE THE
COURT'S SUGGESTION AND TO APPLY FOR CERTIORARI.  MANY MONTHS MAY PASS
BEFORE HIS PETITION FOR CERTIORARI IS REJECTED, AND SO LONG AS IT IS
PENDING, HE WILL BE ENTITLED TO RECEIVE THE BENEFITS OF ANY INTERVENING
DECISIONS.  AS SOON AS HE FILES HIS PETITION FOR HABEAS CORPUS,
HOWEVER, EVEN IF HE DOES SO ONLY A DAY AFTER THE LAST STATE COURT ORDER
IS ENTERED, HE WILL HAVE FORFEITED HIS RIGHT TO SUCH BENEFITS.  HE WILL
THUS BE PUT TO AN ELECTION BETWEEN DELAYED RELIEF AND NO RELIEF AT
ALL. 

"THE INEQUITY OF DRAWING A SHARP DISTINCTION BETWEEN DIRECT REVIEW
AND HABEAS CORPUS IS, HOWEVER, ONLY ONE ASPECT OF A BROADER INEQUITY;
TREATING TWO PRISONERS DEPRIVED OF THE SAME FUNDAMENTAL CONSTITUTIONAL
RIGHT DIFFERENTLY MERELY BECAUSE THE SUPREME COURT DID NOT GET AROUND
TO ENUNCIATING A PARTICULAR RIGHT UNTIL AFTER THE CONVICTION OF ONE OF
THEM HAD BECOME FINAL.  PROFESSOR MISHKIN ARGUES THAT WORRY ABOUT THIS
POINT IGNORES 'THE REASONS FOR BARRING CURRENT CONVICTIONS AND . . .
THE FACT THAT THE NEW RULE IN NO WAY UNDERMINES THE EARLIER
DETERMINATIONS OF FACTUAL GUILT.'  TO HIM, IT IS AS IF A GUILTY PERSON
WERE TO COMPLAIN OF HIS LOT BECAUSE OTHERS EQUALLY GUILTY WERE NOT
PROSECUTED.  AND THOUGH HE RECOGNIZES THAT SUCH CLAIMS ARE SOMETIMES
SUSTAINED, HE CONCLUDES THAT 'THERE ARE CERTAINLY RATIONAL BASES FOR
DRAWING A LINE BETWEEN CURRENT CONVICTIONS AND THOSE PREVIOUSLY FINAL,'
CITING EXCERPTS FROM PROFESSORS BATOR AND AMSTERDAM ON FINALITY. 
PROFESSOR MISHKIN'S SHARP DISTINCTION BETWEEN COLLATERAL ATTACK AND
DIRECT REVIEW THUS RESTS ULTIMATELY ON FINALITY CONSIDERATIONS. 

"FINALITY CONSIDERATIONS SEEM ESPECIALLY WEAK WHERE TWO CASES DIFFER
ONLY IN THE FACT THAT ONE IS STILL ON 'DIRECT' REVIEW WHEREAS THE OTHER
IS NOT.  WHERE THE TWO CASES ARE FAR APART IN AGE, FINALITY
CONSIDERATIONS ARE ADMITTEDLY MORE PERSUASIVE.  BUT EVEN THERE, THE
MERE TIMING OF THE COURT'S DECISION TO GRANT FEDERAL PROTECTION TO A
FUNDAMENTAL RIGHT HARDLY SEEMS TO BE A SUFFICIENT BASIS FOR UNEQUAL
TREATMENT; AFTER ALL, IN MOST INSTANCES IT WAS NOT THE OLDER PRISONER'S
FAULT THAT THE COURT DID NOT RENDER ITS DECISION EARLIER.  TO SOME
EXTENT, OF COURSE, THE QUESTION COMES DOWN TO A CHOICE BETWEEN THE
COMPETING VALUES OF EQUALITY AND REPOSE, AND CHOICES OF THIS SORT ARE
NOTORIOUSLY IMMUNE TO REASONED RESOLUTION.  IT WILL BE SUGGESTED BELOW,
HOWEVER, THAT THE THREAT TO FINALITY CONSIDERATIONS FROM COMPLETE
RETROACTIVITY APPEARS TO HAVE BEEN GREATLY EXAGGERATED, AND IF THIS
SUGGESTION IS WELL TAKEN, PROFESSOR MISHKIN'S REJECTION OF EQUALITY IS
ESPECIALLY UNTENABLE."  SCHWARTZ, RETROACTIVITY, RELIABILITY, AND DUE
PROCESS:  A REPLY TO PROFESSOR MISHKIN, 33 U.CHI.L.REV.  719, 731-734
(1966). 

/5/  SEE MCCONNELL V. RHAY, 393 U.S. 2 (1968) (MEMPA RETROACTIVE);
ARSENAULT V. MASSACHUSETTS, 393 U.S. 5 (1968) (WHITE AND HAMILTON
RETROACTIVE). 

/6/  THE INVESTIGATIVE ADVANTAGE ENJOYED BY THE STATE EXTENDS BEYOND
THE PROHIBITION OF THE COMMON LAW AGAINST CRIMINAL DISCOVERY.  IT ALSO
RESULTS FROM THE FACT THAT THE POLICE ARE USUALLY FIRST AT THE SCENE OF
THE CRIME, HAVE ACCESS TO WITNESSES WITH FRESHER RECOLLECTIONS, ARE
AUTHORIZED TO CONFISCATE REMOVABLE EVIDENCE, ARE POSITIONED TO CONDUCT
LABORATORY TESTS ON PHYSICAL EVIDENCE, ENJOY A COMMUNICATION CHANNEL
WITH A COMPLETE UNDERCOVER WORLD OF SECRET INFORMERS, HAVE AN AIR OF
LEGITIMACY WHICH IS CONDUCIVE TO COOPERATION BY WITNESSES, AND HAVE
NUMEROUS WAYS TO COMPEL TESTIMONY EVEN BEFORE TRIAL.  SEE GENERALLY
NORTON, DISCOVERY IN THE CRIMINAL PROCESS, 61 J.CRIM.L.,C.& P.S. 11, 13
14 (1970); COMMENT, CRIMINAL LAW:  PRE-TRIAL DISCOVERY-- THE RIGHT OF
AN INDIGENT'S COUNSEL TO INSPECT POLICE REPORTS, 14 ST.LOUIS U.L.J. 310
(1969); MOORE, CRIMINAL DISCOVERY, 19 HASTINGS L.J. 865 (1968); A STATE
STATUTE TO LIBERALIZE CRIMINAL DISCOVERY, 4 HARV.J.LEGIS.  105 (1967);
COMMENT, DISCLOSURE AND DISCOVERY IN CRIMINAL CASES:  WHERE ARE WE
HEADED?, 6 DUQUESNE U.L.REV.  41 (1967); BIBLIOGRAPHY:  CRIMINAL
DISCOVERY, 5 TULSA L.J. 207 (1968); SYMPOSIUM:  DISCOVERY IN FEDERAL
CRIMINAL CASES, 33 F.R.D. 53 (1963); BRENNAN, CRIMINAL PROSECUTION:
SPORTING EVENT OR QUEST FOR TRUTH?, 1963 WASH.U.L.Q. 279. 

/7/  I AM AWARE THAT THE RETROACTIVITY THEORY PRESENTLY COMMANDING A
COURT PERMITS A DISTINCTION BETWEEN RULES DESIGNED TO FORTIFY THE
RELIABILITY OF VERDICTS AND RULES DESIGNED TO PROTECT OTHER VALUES. 
BUT HERE, AS THE PLURALITY SUGGESTS, THREE OF THE FOUR FUNCTIONS
COUNSEL MIGHT SERVE AT PRELIMINARY HEARINGS WOULD APPEAR TO ENHANCE THE
FACTFINDING PROCESS:  DISCOVERY OF THE STATE'S CASE, PRESERVING OF
TESTIMONY OF BOTH HOSTILE AND FAVORABLE WITNESSES, AND OBTAINING
RELEASE ON BAIL.  ALTHOUGH THE PLURALITY APPEARS TO DISCOUNT THE
INVESTIGATIVE ADVANTAGE OF BEING FREE ON BAIL, I BELIEVE THAT THIS
"TRADITIONAL RIGHT TO FREEDOM BEFORE CONVICTION PERMITS THE UNHAMPERED
PREPARATION OF A DEFENSE."  STACK V. BOYLE, 342 U.S. 1, 4 (1951).  SEE
ALSO KINNEY V. LENON, 425 F.2D 209, 210 (CA9 1970), WHERE THE COURT OF
APPEALS FOUND THAT "THE APPELLANT IS THE ONLY PERSON WHO CAN
EFFECTIVELY PREPARE HIS OWN DEFENSE," BECAUSE THE INCARCERATED ACCUSED
WAS THE ONLY PERSON WHO COULD RECOGNIZE WITNESSES BY SIGHT WHO MIGHT
HAVE SEEN A SCUFFLE. 

/8/  TO THIS LIST MIGHT HAVE BEEN ADDED ROBERTS V. LAVALLEE, 389
U.S. 40 (1967), HOLDING THAT THE STATE MUST PROVIDE AN INDIGENT WITH A
PRELIMINARY HEARING TRANSCRIPT IN EVERY CIRCUMSTANCE IN WHICH THE MORE
AFFLUENT ACCUSED COULD OBTAIN ONE. 

/9/  FEDERAL BUREAU OF PRISONS, NATIONAL PRISONER STATISTICS--
CHARACTERISTICS OF STATE PRISONERS, 1960, PP. 26-27 (1965). 

/10/  IN THIS RESPECT THE INSTANT CASE FURTHER DIFFERS FROM STOVALL
V. DENNO, 388 U.S.,AT 299, WHERE IT WAS FOUND THAT:  "THE LAW
ENFORCEMENT OFFICIALS OF THE FEDERAL GOVERNMENT AND OF ALL 50 STATES
HAVE HERETOFORE PROCEEDED ON THE PREMISE THAT THE CONSTITUTION DID NOT
REQUIRE THE PRESENCE OF COUNSEL AT PRETRIAL CONFRONTATIONS FOR
IDENTIFICATION." 

/11/  BRIEF FOR RESPONDENT 33. 

/12/  SEE N. 7, SUPRA. 

EDWARD M. GENSON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE CHARLES B. EVINS, R. EUGENE PINCHAM, AND SAM ADAM. 

E. JAMES GILDEA ARGUED THE CAUSE FOR RESPONDENT.  ON THE BRIEF WERE
WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, JOEL M. FLAUM, FIRST
ASSISTANT ATTORNEY GENERAL, AND JAMES B. ZAGEL AND JAMES R. STREICKER,
ASSISTANT ATTORNEYS GENERAL. 
..END :








UNITED STATES V. MISSISSIPPI CHEMICAL CORP., 405 U.S. 298 


       UNITED STATES V. MISSISSIPPI CHEMICAL CORP. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 70-52.  ARGUED JANUARY 10, 1972-- DECIDED MARCH 6,
1972 


RESPONDENT TAXPAYERS ARE COOPERATIVE ASSOCIATIONS WITHIN THE MEANING
OF THE AGRICULTURAL MARKETING ACT, AND THUS QUALIFY FOR MEMBERSHIP IN
ONE OF THE BANKS FOR COOPERATIVES ESTABLISHED BY THE FARM CREDIT ACT OF
1933, WHICH PROVIDES THAT MEMBERS MAY BORROW MONEY FROM THEIR BANKS. 
RESPONDENTS SECURED MEMBERSHIP IN THE NEW ORLEANS BANK AND ELECTED TO
BORROW.  THEY WERE REQUIRED BY THE FARM CREDIT ACT OF 1955 TO MAKE
QUARTERLY PURCHASES OF $100 PAR VALUE CLASS C STOCK OF THE BANK EQUAL
TO NOT LESS THAN 10% NOR MORE THAN 25% OF THE AMOUNT OF THE QUARTERLY
INTEREST PAID TO THE BANK ON THEIR LOANS.  DURING THE RELEVANT PERIOD
THE RATE SET BY THE BANK WAS 15%.  RESPONDENTS CLAIMED A $99 INTEREST
EXPENSE DEDUCTION ON THEIR TAX RETURNS FOR EACH $100 STOCK PURCHASE
REQUIRED BY THE STATUTE.  THE DEDUCTIONS WERE DISALLOWED AND
RESPONDENTS FILED THIS SUIT FOR REFUNDS.  THE GOVERNMENT CONTENDED THAT
THE STOCK IS A CAPITAL ASSET AS DEFINED BY 26 U.S.C. 1221, AND IS
NONDEDUCTIBLE, WHILE RESPONDENTS ASSERTED THAT THE PURCHASE PRICE IS
PART OF "THE AMOUNT (THEY) CONTRACTED TO PAY FOR THE USE OF THE
BORROWED MONEY," AND IS DEDUCTIBLE AS INTEREST.  THE DISTRICT COURT
FOUND FOR THE RESPONDENTS AND THE COURT OF APPEALS AFFIRMED.  HELD:  IT
IS CLEAR FROM THE LEGISLATIVE SCHEME THAT THE CLASS C STOCK IS A
CAPITAL ASSET HAVING A LONG-TERM VALUE.  ITS COST IS, THEREFORE, NOT
DEDUCTIBLE AS AN INTEREST EXPENSE.  PP. 302-312. 

431 F.2D 1320, REVERSED AND REMANDED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT BLACKMUN, J., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

MISSISSIPPI CHEMICAL CORP. AND COASTAL CHEMICAL CORP. (HEREINAFTER
TAXPAYERS) INSTITUTED THIS ACTION FOR A TAX REFUND IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.  BOTH
TAXPAYERS ARE "COOPERATIVE ASSOCIATIONS" WITHIN THE MEANING OF SEC. 15
OF THE AGRICULTURAL MARKETING ACT, 46 STAT. 18, AS AMENDED, 12 U.S.C.
1141J, AND THUS QUALIFY FOR MEMBERSHIP IN ONE OF THE 12 "BANKS FOR
COOPERATIVES" (HEREINAFTER BANKS)) ESTABLISHED BY THE FARM CREDIT ACT
OF 1933, 48 STAT. 257, AS AMENDED, 12 U.S.C. 1134 ET SEQ. SINCE THEIR
PRINCIPAL PLACES OF BUSINESS ARE LOCATED IN MISSISSIPPI, THEIR REGIONAL
BANK IS THE ONE LOCATED IN NEW ORLEANS. 

THE FARM CREDIT ACT OF 1933 PROVIDES THAT MEMBERS MAY BORROW MONEY
FROM THEIR BANKS AND, SOON AFTER SECURING MEMBERSHIP IN THE NEW ORLEANS
BANK, THE TAXPAYERS ELECTED TO BORROW.  /1/  THEREAFTER, THEY WERE
REQUIRED BY THE FARM CREDIT ACT OF 1955, 69 STAT. 656, 12 U.S.C.
1134DA)(3), WHICH PARTIALLY AMENDED THE 1933 ACT, TO MAKE QUARTERLY
PURCHASES OF $100 PAR VALUE CLASS C STOCK OF THE BANK EAUAL TO NOT LESS
THAN 10% NOR MORE THAN 25% OF THE AMOUNT OF THE QUARTERLY INTEREST THAT
THEY PAID TO THE BANK ON THEIR LOANS.  DURING THE PERIOD RELEVANT TO
THIS LAWSUIT, THE RATE SET BY THE BANK WAS 15%.  /2/ 

ON THEIR TAX RETURNS FOR THE YEARS IN QUESTION, THE TAXPAYERS
CLAIMED A $99 INTEREST EXPENSE DEDUCTION FOR $100 STOCK PURCHASE
REQUIRED BY THE STATUTE.  /3/  THE COMMISSIONER OF INTERNAL REVENUE
DISALLOWED THE DEDUCTIONS, THE TAXPAYERS PAID THE ASSESSED
DEFICIENCIES, AND THIS ACTION AROSE. 

THE UNITED STATES HAS CONSISTENTLY CONTENDED THAT THE STOCK THAT THE
TAXPAYERS WERE REQUIRED TO PURCHASE UNDER THE 1955 ACT IS A CAPITAL
ASSET AS DEFINED BY SEC. 1221 OF THE INTERNAL REVENUE CODE, 26 U.S.C.
1221, AND THAT ITS COST IS NONDEDUCTIBLE.  SEE 26 U.S.C. 263.  THE
TAXPAYERS HAVE PERSISTENTLY URGED THAT THE MONEY EXPENDED FOR THIS
STOCK IS PART OF "THE AMOUNT (THEY) . . . CONTRACTED TO PAY FOR THE USE
OF BORROWED MONEY," OLD COLONY R. CO. V. COMMISSIONER, 284 U.S. 552,
560 (1932), AND IS DEDUCTIBLE AS INTEREST.  26 U.S.C. 163(A). 

THE DISTRICT COURT FOUND FOR THE TAXPAYERS /4/  AND THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED OVER THE DISSENT
OF JUDGE GODBOLD.  431 F.2D 1320 (1970).  WE GRANTED CERTIORARI ON
FEBRUARY 22, 1971, TO REVIEW THE DECISION OF THE COURT OF APPEALS.  401
U.S. 908.  WE REVERSE FOR THE REASONS STATED BELOW. 

    I 

EARLY IN THIS CENTURY, CONGRESS RECOGNIZED THAT FARMERS HAD A
TREMENDOUS NEED FOR LONG-TERM CAPITAL AT LOW INTEREST RATES.  THIS LED
TO THE ENACTMENT OF THE FEDERAL FARM LOAN ACT OF 1916, 39 STAT. 360, AS
AMENDED, 12 U.S.C. 641 ET SEQ. THE IMMEDIATE PURPOSE OF THE BILL WAS
"TO AFFORD THOSE WHO (WERE) ENGAGED IN FARMING OR WHO DESIRED) TO
ENGAGE IN THAT OCCUPATION A VASTLY GREATER VOLUME OF LAND CREDIT ON
MORE FAVORABLE TERMS AND AT MATERIALLY LOWER AND MORE NEARLY UNIFORM
INTEREST RATES THAN (WERE) PRESENTLY) AVAILABLE."  H.R. REP. NO. 630,
64TH CONG., 1ST SESS., 2.  THE LONG-RANGE PURPOSE WAS TO STIMULATE AND
FOSTER A COOPERATIVE SPIRIT AMONG FARMERS WHO, IT WAS HOPED, WOULD WORK
TOGETHER TO SEEK AGRICULTURAL IMPROVEMENTS WHICH THEY WOULD FINANCE
THEMSELVES.  ID., AT 2-3; S. REP. NO. 144, 64TH CONG., 1ST SESS., 5. 

THE 1916 ACT DIVIDED THE UNITED STATES INTO 12 REGIONAL DISTRICTS
UNDER THE GENERAL SUPERVISION OF A FEDERAL FARM LOAN BOARD.  EACH
DISTRICT CONTAINED A FEDERAL LAND BANK DESIGNED TO LOAN MONEY TO
FARMERS AT LOW INTEREST RATES.  PERSONS DESIRING TO BORROW WERE
REQUIRED TO ORGANIZE INTO GROUPS OF 10 OR MORE WHICH WERE CALLED
"NATIONAL FARM LOAN ASSOCIATIONS."  SEC. 7, 39 STAT. 365. 

IN ORDER TO BORROW FROM THE DISTRICT BANK, AN ASSOCIATION HAD TO
ESTABLISH THAT EACH OF ITS MEMBERS WAS AN OWNER OR A PROSPECTIVE OWNER
OF A FARM, THAT THE LOAN DESIRED BY EACH MEMBER WAS NOT LESS THAN $100
NOR MORE THAN $10,000, AND THAT THE AGGREGATE OF THE LOANS WAS NOT LESS
THAN $20,000.  EACH ASSOCIATION ALSO HAD TO SUBSCRIBE FOR CAPITAL STOCK
OF THE BANK IN THE AMOUNT OF 5% OF THE TOTAL LOAN SOUGHT BY ITS
MEMBERS.  THE ASSOCIATION, IN TURN, WAS REQUIRED TO COMPEL EACH OF ITS
MEMBERS TO PURCHASE STOCK IN THE ASSOCIATION EQUAL TO 5% OF THE AMOUNT
OF THE LOAN SOUGHT BY THAT MEMBER.  HENCE, THERE WERE TWO SEPARATE
LEVELS OF COOPERATIVE ASSOCIATION.  /5/ 

THE LEGISLATIVE HISTORY AND THE LANGUAGE OF THE ACT ITSELF INDICATE
THAT CONGRESS FACED SOMEWHAT OF A DILEMMA IN STRUCTURING THE LAND BANK
SYSTEM.  ON THE ONE HAND, THERE WAS A STRONG CONGRESSIONAL DESIRE TO
STIMULATE A PRIVATELY CONTROLLED, PRIVATELY OWNED, AND PRIVATELY
FINANCED PROGRAM BASED UPON THE COOPERATIVE EFFORTS OF DEDICATED
FARMERS.  THIS DESIRE WAS EFFECTUATED IN LARGE MEASURE IN THE STOCK
PURCHASE REQUIREMENTS DISCUSSED ABOVE.  ON THE OTHER HAND, CONGRESS
REALIZED THAT WITHOUT FEDERAL HELP, THE EXISTING PLIGHT OF THE FARMERS
WOULD PROBABLY RENDER THEM UNABLE TO SUPPORT THE SYSTEM THEMSELVES, AND
IT WOULD THUS BE DOOMED TO FAILURE: 

     "THE GREATEST DIFFICULTY IN THE ESTABLISHMENT OF A RURAL
CREDIT

  SYSTEM, BASED UPON THE COOPERATIVE PRINCIPLE, IS MET IN

  CONNECTION WITH THE INAUGURATION OF THE SYSTEM.  AMPLE CAPITAL IS

ABSOLUTELY NECESSARY AT THE START AND WHATEVER SUMS THE FIRST

  BORROWERS MIGHT BE ABLE TO CONTRIBUTE WOULD IN NO WISE SUFFICE TO

  GET THE SYSTEM INTO SUCCESSFUL OPERATION.  THE SYSTEM MUST BE

  ENDOWED, TEMPORARILY AT LEAST, WITH CAPITAL FROM SOURCES OTHER

  THAN THE SUBSCRIPTIONS TO CAPITAL STOCK AMONG THE BORROWERS." 

  H.R. REP. NO. 630, 64TH CONG., 1ST SESS., 9. 

ACCORD, S. REP. NO. 144, 64TH CONG., 1ST SESS., 4. 

TO RESOLVE THE DILEMMA, CONGRESS PROVIDED FOR TEMPORARY PUBLIC
FINANCING WITHOUT CHARGE TO SUPPLEMENT THE STOCK-PURCHASE REQUIREMENTS
OF THE STATUTE.  CONGRESS ALSO PROVIDED THAT EACH LAND BANK MUST
PERIODICALLY INCREASE ITS CAPITAL SHARES IN ORDER TO ACHIEVE THE GOAL
OF PRIVATE OWNERSHIP OF THE SYSTEM, AND TO REPAY THE TEMPORARY FEDERAL
FINANCING. 

THE LAND BANK SYSTEM REMAINED VIRTUALLY UNTOUCHED /6/  UNTIL THE
ECONOMIC DEPRESSION OF THE 1930'S WHEN CONGRESS DETERMINED THAT MORE
ACTION WAS NEEDED TO AID FARMERS IN ESTABLISHING PRIVATELY OWNED
INSTITUTIONS DESIGNED TO PROVIDE READY SOURCES OF LONG-TERM CREDIT. 
THE FARM CREDIT ACT OF 1933 WAS PASSED TO SUPPLEMENT THE 1916
LEGISLATION.  IT ESTABLISHED, INTER ALIA, REGIONAL BANKS FOR
COOPERATIVES IN EACH OF THE 12 LAND BANK DISTRICTS AND A CENTRAL BANK
FOR COOPERATIVES IN WASHINGTON, D.C.  /7/ 

THESE BANKS WERE AUTHORIZED TO MAKE LOANS TO "COOPERATIVE
ASSOCIATIONS," DEFINED AS "ASSOCIATIONS) IN WHICH FARMERS ACT TOGETHER
IN PROCESSING, PREPARING FOR MARKET, HANDLING, AND/OR MARKETING THE
FARM PRODUCTS OF PERSONS SO ENGAGED, AND ALSO . . . ASSOCIATIONS) IN
WHICH FARMERS ACT TOGETHER IN PURCHASING, TESTING, GRADING, PROCESSING,
DISTRIBUTING, AND/OR FURNISHING FARM SUPPLIES AND/OR FARM BUSINESS
SERVICES."  AGRICULTURAL MARKETING ACT SEC. 15, 46 STAT. 18, AS
AMENDED, 12 U.S.C. 1141J. 

THE NEW BANKS PARALLELED IN MANY WAYS THOSE ALREADY ESTABLISHED
UNDER THE 1916 LEGISLATION.  THE SAME REGIONAL DISTRICTS WERE USED,
MANY OF THE SAME PERSONS UERE ELIGIBLE FOR LOANS FROM BOTH
INSTITUTIONS, AND BORROWERS FROM BOTH BANKS WERE REQUIRED TO BE
STOCKHOLDERS.  THE 1933 ACT REQUIRED COOPERATIVE ASSOCIATIONS TO OWN,
AT THE TIME A LOAN WAS MADE, AN AMOUNT OF STOCK IN THE BANK FOR
COOPERATIVES EQUAL IN FAIR BOOK VALUE (NOT TO EXCEED PAR VALUE) TO $100
PER $2,000 OF THE AMOUNT OF THE LOAN, OR 5%, THE SAME AMOUNT OF STOCK
REQUIRED OF BORROWERS FROM LAND BANKS UNDER THE 1916 ACT. 

ONE NOTABLE DIFFERENCE BETWEEN THE 1916 AND THE 1933 ACTS WAS THAT
THE LATTER DID NOT REGULATE THE MEMBERSHIP OF THE COOPERATIVE
ASSOCIATION TO ANY GREAT DEGREE.  FOR EXAMPLE, MEMBERS OF COOPERATIVE
ASSOCIATIONS DID NOT HAVE TO OWN STOCK IN THE ASSOCIATIONS, ONLY IN THE
BANKS; THEY DID NOT HAVE TO BORROW A MINIMUM AMOUNT; AND THEY DID NOT
HAVE TO BE FARM OWNERS OR PROSPECTIVE FARM OWNERS, BUT COULD BE
PROCESSORS, HANDLERS, TESTERS, OR MARKETERS.  THIS IS IN SHARP CONTRAST
TO THE STRINGENT REQUIREMENTS OF THE 1916 LEGISLATION.  ANOTHER NOTABLE
DIFFERENCE IS THAT CONGRESS INVESTED SUBSTANTIALLY MORE MONEY IN THE
1933 PROGRAM ($110,000,000) THAN IT HAD INVESTED IN THE LAND BANKS
($9,000,000).  SEE S. REP. NO. 1201, 84TH CONG., 1ST SESS., 5, 7. 

AS TIME PASSED, CONGRESS WATCHED THE LAND BANK SYSTEM DEVELOP AS
PLANNED.  THE TEMPORARY GOVERNMENT CAPITALIZATION THAT HAD SOLIDIFIED
THE PROGRAM IN ITS INCEPTION WAS GRADUALLY REPLACED BY PRIVATE CAPITAL,
AND BY THE END OF 1947, THE GOVERNMENT'S CAPITAL HAD BEEN COMPLETELY
RETURNED.  S. DOC. NO. 7, 84TH CONG., 1ST SESS., 4; S. REP. NO. 1201,
84TH CONG., 1ST SESS., 7.  THE LAND BANKS BECAME TOTALLY PRIVATE
CONCERNS-- OWNED, OPERATED, AND FINANCED BY FARMERS WITHOUT GOVERNMENT
ASSISTANCE. 

CONGRESS ALSO WATCHED THE DEVELOPMENT OF THE BANKS FOR COOPERATIVES
AND BECAME CONCERNED ABOUT THEIR LACK OF SUCCESS IN ATTRACTING AND
KEEPING PRIVATE INVESTMENT.  BY THE 1950'S, THE GOVERNMENT STILL
RETAINED OVER 88% OF THE STOCK IN THE BANKS.  IN SEC. 2 OF THE FARM
CREDIT ACT OF 1953, 67 STAT. 390, 12 U.S.C. 636A, CONGRESS STATED THAT
"(IT IS DECLARED TO BE THE POLICY OF THE CONGRESS TO ENCOURAGE AND
FACILITATE INCREASED BORROWER PARTICIPATION IN THE MANAGEMENT, CONTROL,
AND ULTIMATE OWNERSHIP OF THE PERMANENT SYSTEM OF AGRICULTURAL CREDIT
MADE AVAILABLE THROUGH INSTITUTIONS OPERATING UNDER THE SUPERVISION OF
THE FARM CREDIT ADMINISTRATION . . . . "  A FEDERAL FARM CREDIT BOARD
WAS CREATED FOR THE PURPOSE, INTER ALIA, OF MAKING RECOMMENDATIONS
CONCERNING THE BEST WAY TO CONVERT THE BANKS FOR COOPERATIVES FROM
PREDOMINANTLY GOVERNMENT-OWNED TO PREDOMINANTLY PRIVATELY OWNED
INSTITUTIONS. 

THE RESULT OF THE BOARD'S REPORT AND RECOMMENDATIONS WAS THE FARM
CREDIT ACT OF 1955, 69 STAT. 655.  IT SOUGHT TO EFFECTUATE CONGRESS'
POLICY BY PROVIDING FOR THE ORDERLY WITHDRAWAL OF GOVERNMENT CAPITAL
FROM THE BANKS AND THE CONTINUAL INFLUX AND RETENTION OF SUBSTITUTE
PRIVATE FINANCING.  SEE S. DOC. NO. 7, 84TH CONG., 1ST SESS., 6; S.
REP. NO. 1201, 84TH CONG., 1ST SESS., 1; HEARINGS ON FARM CREDIT ACT OF
1955 BEFORE THE HOUSE COMMITTEE ON AGRICULTURE, 84TH CONG., 1ST SESS.,
30-31. 

        II 

UNDER THE FARM CREDIT ACT OF 1933, THERE WAS ONLY ONE CLASS OF
CAPITAL STOCK IN THE BANKS FOR COOPERATIVES.  THE FARM CREDIT ACT OF
1955 PROVIDED FOR THREE DISTINCT CLASSES OF STOCK-- A, B, AND C. 

CLASS A STOCK MAY ONLY BE HELD BY THE GOVERNOR OF THE FARM CREDIT
ASSOCIATION ON BEHALF OF THE UNITED STATES.  WHATEVER STOCK THE
GOVERNMENT HELD IN THE BANKS PRIOR TO THE 1955 ACT WAS CONVERTED TO
CLASS A STOCK.  THIS STOCK IS NONVOTING AND RECEIVES NO DIVIDENDS. 
CLASS A STOCK MUST BE RETIRED EACH YEAR IN AN AMOUNT EQUAL TO THE
AMOUNT OF CLASS C STOCK ISSUED DURING THE YEAR.  12 U.S.C. 1134DA)(1). 
ONCE THE UNITED STATES' STOCK IS COMPLETELY REDEEMED, THE GOVERNMENT
WILL INVEST NO MORE IN THE BANKS, EXCEPT THAT IT MAY PURCHASE
ADDITIONAL SHARES OF THE CLASS A STOCK IF AN EMERGENCY MAKES IT
NECESSARY IN ORDER FOR THE BANK TO MEET THE CREDIT NEEDS OF ELIGIBLE
BORROWERS.  /8/  SEE 12 U.S.C. 1134DA)(1), 1134B, 1134I. 

CLASS B STOCK REPRESENTS A NEW APPROACH TO CAPITALIZING THE BANKS. 
IT IS AN INVESTMENT STOCK AVAILABLE TO THE PUBLIC.  IT PAYS
NONCUMULATIVE DIVIDENDS UPON CERTAIN CONDITIONS.  CLASS B STOCK MAY BE
RETIRED ONLY AFTER ALL CLASS A STOCK.  12 U.S.C. 1134DA)(2).  /9/ 

CLASS C STOCK MAY BE ISSUED ONLY TO FARMERS' COOPERATIVE
ASSOCIATIONS, EXCEPT THAT EACH REGIONAL BANK IS REQUIRED TO PURCHASE
SUCH SHARES FROM THE CENTRAL BANK.  THIS STOCK MAY BE OBTAINED UNDER
FOUR CIRCUMSTANCES.  ONE SHARE IS REQUIRED TO INITIALLY QUALIFY ANY
ASSOCIATION AS A BORROWER OF A REGIONAL BANK.  EACH BORROWER MUST THEN
MAKE THE QUARTERLY STOCK PURCHASES WHICH GAVE RISE TO THIS LAWSUIT.  IN
ADDITION, 12 U.S.C. 1134LB) PROVIDES THAT AFTER CERTAIN EXPENDITURES
ARE MADE EACH YEAR, PATRONAGE REFUNDS MAY BE ALLOCATED TO BORROWERS IN
THE FORM OF CLASS C STOCK.  "ALL PATRONAGE REFUNDS SHALL BE PAID IN THE
PROPORTION THAT THE AMOUNT OF INTEREST EARNED ON THE LOANS OF EACH
BORROWER BEARS TO THE TOTAL INTEREST EARNED ON THE LOANS OF ALL
BORROWERS DURING THE FISCAL YEAR."  IBID.  /10/  BORROWERS ALSO RECEIVE
AT THE END OF EACH FISCAL YEAR AN "ALLOCATED SURPLUS" CREDIT WHICH IS
PAYABLE OUT OF THE BANK'S NET SAVINGS.  LIKE PATRONAGE REFUNDS,
ALLOCATED SURPLUS IS CREDITED TO EACH MEMBER IN ACCORDANCE WITH THE
PROPORTION THAT THE INTEREST ON ITS LOANS BEARS TO THE INTEREST ON ALL
LOANS.  WHEN THE SURPLUS ACCOUNT REACHES 25% OF THE TOTAL OUTSTANDING
CAPITAL STOCK OF THE BANK, THE EXCESS MAY BE DISTRIBUTED TO MEMBERS IN
THE FORM OF CLASS C STOCK. 

ONLY THE TAX TREATMENT OF THE QUARTERLY PURCHASES IS DISPUTED HERE. 
/11/  THE TAXPAYERS CORRECTLY NOTE THAT THE CLASS C STOCK HAS
ATTRIBUTES WHICH WOULD MAKE A NORMAL COMMERCIAL STOCK UNDESIRABLE.  FOR
EXAMPLE, THE C STOCK PAYS NO DIVIDENDS; /12/  IT IS TRANSFERABLE ONLY
BETWEEN COOPERATIVES AND ONLY UNDER RARE CIRCUMSTANCES; ADDITIONAL
SHARES DO NOT PROVIDE ADDITIONAL VOTING POWER; /13/  AND THE STOCK
CANNOT BE REDEEMED UNTIL ALL A, ALL B ISSUED EARLIER OR IN THE SAME
YEAR, AND ALL EARLIER ISSUED C SHARES HAVE BEEN CALLED FOR REDEMPTION. 
THESE CHARACTERISTICS RENDER THE MARKET FOR C SHARES VIRTUALLY
NONEXISTENT.     IT MUST BE REMEMBERED, HOWEVER, THAT THE STOCK WAS
INTENTIONALLY GIVEN THESE CHARACTERISTICS BY A CONGRESS WITH DEFINITE
GOALS IN MIND.  /14/  THE LEGISLATIVE HISTORY OF THE FARM CREDIT ACT OF
1955 INDICATES THAT CONGRESS PLACED MUCH OF THE BLAME FOR THE BANK'S
INABILITY TO REPAY THE CAPITAL EXTENDED BY THE GOVERNMENT AND TO RETAIN
PRIVATE CAPITAL ON THE PROVISION IN THE 1933 LEGISLATION WHICH
PERMITTED BORROWERS TO REDEEM THEIR STOCK FOR CASH UPON PAYING OFF
THEIR LOANS.  THE RESTRICTIONS ON REDEMPTION AND TRANSFERABILITY AND
THE DIVIDEND PROHIBITION WERE DESIGNED TO OBVIATE THIS DIFFICULTY AND
TO PROVIDE BOTH A STABLE MEMBERSHIP AND PERMANENT CAPITAL, TWO
NECESSITIES FOR THE SUCCESS OF ANY COOPERATIVE VENTURE. 

        III 

THE TAXPAYERS DO NOT SEEK TO DEDUCT THE COST OF THEIR INITIAL SHARES
IN THE BANK AS INTEREST.  THEY ACCEPT THE FACT THAT THESE SHARES
REPRESENT ONE COST OF MEMBERSHIP AND THAT THIS COST IS A CAPITAL
EXPENSE BECAUSE MEMBERSHIP IS A VALUABLE ASSET IN MORE THAN ONE TAXABLE
YEAR.  BUT, THEY ARGUE THAT ONCE THEY PURCHASED THEIR INITIAL SHARES,
THEY OBTAINED FULL MEMBERSHIP RIGHTS, AND, A FORTIORI, THAT CONGRESS
MUST HAVE INTENDED THE QUARTERLY EXPENDITURES FOR STOCK TO BE A CHARGE
FOR BORROWING MONEY SINCE THE STOCK HAS NO VALUE.  THE FACT IS,
HOWEVER, THAT THE STOCK PURCHASED QUARTERLY IS INDEED VALUABLE.  THE
AMOUNTS PAID FOR C SHARES BECOME PART OF THE PERMANENT CAPITAL
STRUCTURE OF THE BANK, THEREBY INCREASING THE STABILITY OF THE BANK AND
INSURING ITS CONTINUED ABILITY TO EXTEND CREDIT.  EACH SHARE ALSO
PROVIDES AN OPPORTUNITY FOR MORE PATRONAGE AND SURPLUS DIVIDENDS, AN
ULTIMATE RIGHT OF REDEMPTION, AND AN ASSET THAT MAY BE USED AS A SET
OFF IN CASE OF A DEFAULT ON THE LOAN.  IN SUM, EVERY SHARE OF STOCK
PURCHASED QUARTERLY BY THE TAXPAYERS IS NEARLY AS VALUABLE AS THE
SHARES PURCHASED INITIALLY.  IT IS THEREFORE DIFFICULT TO UNDERSTAND
WHY THESE DIFFERENT PURCHASES SHOULD RECEIVE RADICALLY DIFFERENT TAX
TREATMENT.  IF CONGRESS HAD REQUIRED 1,000 OR 100,000 SHARES OF CLASS C
STOCK TO BE PURCHASED BEFORE AN ASSOCIATION COULD BORROW FROM THE
BANKS, UNDER THE TAXPAYERS' THEORY OF THE CASE THE COST OF THOSE SHARES
WOULD BE A NONDEDUCTIBLE CAPITAL EXPENSE.  SIMPLY BECAUSE CONGRESS
EASED THE BURDEN ON FARMERS BY SPREADING THE REQUIREMENT OF CAPITAL
INVESTMENT OVER A PERIOD OF TIME RATHER THAN REQUIRING IT AS A
PREREQUISITE TO BORROWING, THE TAXPAYERS ARE ENTITLED TO NO MORE
FAVORABLE TAX TREATMENT. 

IT IS IMPORTANT NOT TO LOSE SIGHT OF THE CONGRESSIONAL PURPOSES IN
ENACTING THE FARM CREDIT LEGISLATION.  THE IMMEDIATE GOAL WAS TO
PROVIDE LOANS TO FARMERS AT LOW INTEREST RATES.  IT WOULD, THEREFORE,
BE ODD FOR CONGRESS TO PROVIDE A "HIDDEN" INTEREST CHARGE IN THE
LEGISLATION.  THE LONG-RANGE GOAL WAS TO MAKE THE BANKS "FULLY
COOPERATIVE AND TO PLACE FULL OWNERSHIP AND RESPONSIBILITY FOR THEIR
OPERATIONS AND SUCCESS IN THE HANDS OF THOSE ELIGIBLE TO BORROW FROM
THEM."  HEARINGS ON FARM CREDIT ACT OF 1955 BEFORE A SUBCOMMITTEE OF
THE SENATE COMMITTEE ON AGRICULTURE AND FORESTRY, 84TH CONG., 1ST
SESS., 60.  CONGRESS FELT, IN LIGHT OF ITS EXPERIENCE UNDER THE FARM
CREDIT ACT OF 1933, THAT THE LONG-RANGE GOAL COULD ONLY BE ACHIEVED IF
BANK MEMBERS MADE LONG-TERM INVESTMENTS IN THE BANKS.  HENCE, CONGRESS
CREATED CLASS C STOCK, A SECURITY WITH A SPECIAL VALUE IN COOPERATIVE
VENTURES.  WHILE THIS SECURITY IS SUI GENERIS, THE CONGRESSIONAL SCHEME
MAKES IT CLEAR THAT IT HAS VALUE OVER THE LONG RUN. 

SINCE THE SECURITY IS OF VALUE IN MORE THAN ONE TAXABLE YEAR, IT IS
A CAPITAL ASSET WITHIN THE MEANING OF SEC. 1221 OF THE INTERNAL REVENUE
CODE, AND ITS COST IS NONDEDUCTIBLE.  CF. COMMISSIONER V. LINCOLN
SAVINGS & LOAN ASSN., 403 U.S. 345 (1971); OLD COLONY R. CO. V. UNITED
STATES, 284 U.S. 552 (1932); 26 CFR 1.461-1. 

WE REJECT THE CONTENTION THAT WHILE THE CLASS C STOCK MAY BE A
CAPITAL ASSET, IT IS WORTH ONLY $1, /15/  AND THAT THE ADDITIONAL $99
PAID FOR EACH SHARE MUST REPRESENT INTEREST.  WERE WE DEALING WITH THE
TRADITIONAL CORPORATE STRUCTURE IN THIS CASE, THE TAXPAYERS' ARGUMENT
WOULD HAVE STRENGTH.  BUT, AS WE HAVE POINTED OUT PREVIOUSLY, THE
ESSENTIAL NATURE OF COOPERATIVES AND CORPORATIONS DIFFERS.  THE VALUE
OF THE CLASS C STOCK DERIVES PRIMARILY FROM ATTRIBUTES OTHER THAN
MARKETABILITY.  THE STOCK HAS VALUE BECAUSE IT IS THE FOUNDATION OF THE
COOPERATIVE SCHEME; IT INSURES STABILITY AND CONTINUITY.  THE STOCK
ALSO HAS VALUE BECAUSE IT ENABLES THE FARMERS TO WORK TOGETHER TOWARD
COMMON GOALS.  IT ENABLES THEM TO SHARE IN A VENTURE OF COMMON CONCERNS
AND TO REAP THE REWARDS OF KNOWING THAT THEY CAN FINANCE THEMSELVES
WITHOUT THE ASSISTANCE OF THE FEDERAL GOVERNMENT.  IT IS PERHAPS
DEBATABLE WHETHER THESE ATTRIBUTES SHOULD PROPERLY BE VALUED AT $100
PER SHARE, BUT WE ARE NOT CALLED UPON MERELY TO RESOLVE A QUESTION OF
VALUATION.  RATHER, WE MUST DECIDE WHETHER IT IS ARTIFICIAL TO
CHARACTERIZE THESE UNIQUE EXPENDITURES AS PAYMENTS FOR A CAPITAL
ASSET.  WE FIND THAT IT IS NOT. 

THE TAXPAYERS AND THE GOVERNMENT EACH ALLEGE THAT THE OTHER IS
LOOKING AT FORM RATHER THAN SUBSTANCE.  AT SOME POINT, HOWEVER, THE
FORM IN WHICH A TRANSACTION IS CAST MUST HAVE CONSIDERABLE IMPACT. 
GUTERMAN, SUBSTANCE V. FORM IN THE TAXATION OF PERSONAL AND BUSINESS
TRANSACTIONS, N.Y.U. 20TH INST.  ON FED. TAX.  951 (1962).  CONGRESS
CHOSE TO MAKE THE TAXPAYERS BUY STOCK; CONGRESS DETERMINED THAT THE
STOCK WAS WORTH $100 A SHARE; AND THIS STOCK WAS ENDOWED WITH A LONG
TERM VALUE.  WHILE CONGRESS MIGHT HAVE BEEN ABLE TO ACHIEVE THE SAME
ENDS THROUGH ADDITIONAL INTEREST PAYMENTS, IT CHOSE THE FORM OF STOCK
PURCHASES.  THIS FORM ASSURES LONG-TERM COMMITMENT AND HAS BEARING ON
THE TAX CONSEQUENCES OF THE PURCHASES. 

ACCORDINGLY, THE DECISION OF THE COURT OF APPEALS IS REVERSED AND
THE CASE IS REMANDED WITH DIRECTION THAT JUDGMENT BE ENTERED FOR THE
UNITED STATES. 

              IT IS SO ORDERED. 

/1/  MISSISSIPPI CHEMICAL CORP. ACQUIRED THE SHARE OF STOCK
QUALIFYING IT AS A BORROWER IN 1956; COASTAL CHEMICAL CORP. ACQUIRED
ITS QUALIFYING SHARE IN 1957. 

/2/  MISSISSIPPI CHEMICAL CORP. CHALLENGES THE GOVERNMENT'S TAX
TREATMENT OF $55,113.19 SPENT FROM 1961 TO 1963; COASTAL CHEMICAL CORP.
CHALLENGES THE TREATMENT OF $211,799.68 EXPENDED FROM 1958 TO 1963. 

/3/  ONE DOLLAR WAS TREATED AS THE COST OF ACQUIRING A CAPITAL
ASSET. 

/4/  THIS DECISION IS UNREPORTED BUT IS FOUND IN APP. 342-346. 
OTHER LOWER COURTS HAVE SPLIT ON THE ISSUE PRESENTED.  COMPARE, E.G.,
M.F.A. CENTRAL COOPERATIVE V. BOOKWALTER, 427 F.2D 1341 (CA8 1970),
REV'G 286 F.SUPP.  956 (ED MO. 1968), PET. FOR CERT. PENDING (NO. 70
22), WITH PENN YAN AGWAY COOPERATIVE, INC. V. UNITED STATES, 189 CT.CL.
434, 417 F.2D 1372 (1969). 

/5/  THE STATUTE ALSO PROVIDED THAT "JOINT STOCK LAND BANKS" COULD
BE FORMED.  THESE WERE CORPORATIONS, COMPOSED OF 10 OR MORE PERSONS,
WHO DESIRED TO FORM BANKS TO LOAN MONEY TO FARMERS WITHOUT THE AID OF
CONGRESSIONAL FINANCING.  THEY WERE SUBJECT TO THE SAME RESTRICTIONS
AND CONDITIONS IMPOSED ON THE DISTRICT LAND BANKS. 

/6/  WHILE CONGRESS DID NOT DISTURB THE LAND BANK SYSTEM, IT ADDED
TO IT AT VARIOUS TIMES.  FOR EXAMPLE, TITLE II OF THE AGRICULTURAL
CREDITS ACT OF 1923, 42 STAT. 1461, 12 U.S.C. 1151 ET SEQ. (1958 ED.),
WAS DESIGNED TO AID FARMERS IN OBTAINING SHORT-TERM CREDIT. 

/7/  THE ACT ALSO ESTABLISHED A PRODUCTION CREDIT SYSTEM TO IMPROVE
SHORT-TERM FINANCING FOR FARMERS.  THAT SYSTEM HAS NO BEARING ON THIS
CASE. 

/8/  THERE IS EVIDENCE IN THE RECORD THAT THE GOVERNMENT CAPITAL IS
BEING REVOLVED OUT OF THE BANKS JUST AS CONGRESS ANTICIPATED.  SEE FARM
CREDIT ADMINISTRATION, BANKS FOR COOPERATIVES-- A QUARTER OF A CENTURY
OF PROGRESS, EXCERPTED IN APP. 157, 175.  SEE ALSO 431 F.2D 1320, 1332,
AND N. 17 (GODBOLD, J., DISSENTING); BRIEF FOR THE UNITED STATES 7. 

/9/  THE CLASS B SHARES ARE OF ONLY NOMINAL IMPORTANCE.  IN 1963,
THEY AMOUNTED TO ONLY SOME 5% OF THE TOTAL OUTSTANDING STOCK OF THE NEW
ORLEANS BANK. 

/10/  THE PATRONAGE REFUNDS AND THE ALLOCATED SURPLUS, DISCUSSED
INFRA, ARE NOT A RETURN ON THE AMOUNT OF CAPITAL THAT THE BORROWER
CONTRIBUTES TO THE BANK; THEY ARE DISTRIBUTIONS OF EARNINGS, NOT
PRESENTLY CONVERTIBLE TO CASH, BUT ARE EVENTUALLY CONVERTIBLE JUST AS
THE QUARTERLY CLASS C PURCHASES MAY EVENTUALLY BE REDEEMED. 

/11/  THE GOVERNMENT CONTENDED IN THE DISTRICT COURT THAT THE
TAXPAYERS SHOULD HAVE REPORTED THE PATRONAGE DIVIDENDS AS INCOME.  THE
DISTRICT COURT DISAGREED AND THE GOVERNMENT DID NOT APPEAL THIS POINT. 
IT IS NOT, THEREFORE, REVIEWABLE HERE, AND THE GOVERNMENT DOES NOT URGE
THAT WE CONSIDER IT.

/12/  WHILE NO FORMAL DIVIDENDS ARE PAID ON THE C STOCK, IT IS
APPARENT THAT THE PATRONAGE DIVIDEND IS IN MANY WAYS EQUIVALENT TO THE
TRADITIONAL CORPORATE DIVIDEND.  AS NOTED ABOVE, THE PATRONAGE DIVIDEND
IS NOT IMMEDIATELY CONVERTIBLE TO CASH, BUT IT IS FAR FROM WORTHLESS. 
LIKE THE USUAL CORPORATE DIVIDENDS, THE PATRONAGE DIVIDENDS ARE PAID IN
PROPORTION TO STOCK OWNERSHIP.  STOCK OWNERSHIP IS APPORTIONED
ACCORDING TO THE AMOUNT A BANK MEMBER BORROWS.  THUS, THOSE WHO BORROW
THE MOST OWN THE MOST STOCK AND RECEIVE THE MOST PATRONAGE DIVIDENDS
(AND SURPLUS AS WELL).  AS THE CLASS A STOCK AND THE EARLIER ISSUED
CLASS B AND CLASS C STOCK ARE REDEEMED, THE C STOCK ISSUED AS DIVIDENDS
WILL BECOME CONVERTIBLE TO CASH AND ITS VALUE WILL BE REALIZED AT THAT
TIME. 

IN THE EVENT OF A DEFAULT BY A BORROWER, THE CLASS C STOCK IS SET
OFF AGAINST THE AMOUNT OF LOAN.  HENCE, THE MORE PATRONAGE DIVIDENDS
THE MEMBER RECEIVES, THE MORE SECURITY HE HAS IN CASE OF DEFAULT. 

/13/  COOPERATIVE ASSOCIATIONS ARE ENTITLED TO VOTE IN POLLS
DESIGNATING NOMINEES FOR APPOINTMENT TO THE FEDERAL FARM CREDIT BOARD,
ESTABLISHED BY THE FARM CREDIT ACT OF 1953, 67 STAT. 390, AS AMENDED,
12 U.S.C. 636C, TO HELP EFFECTUATE CONGRESSIONAL POLICY; TO VOTE IN THE
NOMINATION POLLS AND ELECTIONS OF MEMBERS OF DISTRICT FARM CREDIT
BOARDS ESTABLISHED BY THE FARM CREDIT ACT OF 1937, 50 STAT. 703, 12
U.S.C. 640A; AND TO VOTE IN THE NOMINATION AND ELECTIONS OF DIRECTORS
OF THE CENTRAL BANK FOR COOPERATIVES.  IT IS NORMAL FOR EVERY MEMBER OF
A COOPERATIVE TO HAVE ONLY ONE VOTE, IRRESPECTIVE OF A DISPARITY
BETWEEN THE SHARES HELD.  SEE FROST V. CORPORATION COMM'N, 278 U.S.
515, 536-537 (1929) (BRANDESI, J., DISSENTING); I. PACKEL, THE LAW OF
COOPERATIVES SECS. 23-24(A), PP. 136-140 (3D ED. 1956).  IT IS
INTERESTING THAT THE CAPPER-VOLSTEAD ACT, 42 STAT. 388, 7 U.S.C. 291
292, PERMITS A COOPERATIVE MARKETING ASSOCIATION IMMUNITY FROM THE
SHERMAN ACT UNDER SOME CIRCUMSTANCES, BUT ONLY IF NO MEMBER IS ENTITLED
TO MORE THAN ONE VOTE. 

/14/  COOPERATIVES AND CORPORATIONS OPERATE ON DIFFERENT
PRINCIPLES.  WHEREAS THE CORPORATE STRUCTURE SEPARATES CONTROL AND
MANAGEMENT, THE ESSENCE OF A COOPERATIVE REQUIRES THAT THESE FUNCTIONS
BE INTEGRATED.  AND, WHEREAS THE VALUE OF CORPORATE STOCK DEPENDS ON
EASE OF TRANSFERABILITY (OR MARKETABILITY), THE VALUE OF COOPERATIVE
STOCK LIES IN THE DURABLE, LONG-TERM NATURE OF THE INVESTMENT.  SEE
NIEMAN, REVOLVING CAPITAL IN STOCK COOPERATIVE CORPORATIONS, 13 LAW &
CONTEMP.PROB.  393 (1948). 

/15/  IT IS BY NO MEANS CLEAR THAT THE CLASS C STOCK IS WORTH ONLY
$1 EVEN UNDER A TRADITIONAL MARKET VALUE ANALYSIS.  THE LOWER COURTS
FAILED TO INCLUDE THE VALUE OF THE PATRONAGE AND SURPLUS DIVIDENDS IN
COMPUTING THE VALUE OF THE QUARTERLY PURCHASES.  THE CLASS C STOCK MAY,
THEREFORE, BE WORTH CONSIDERABLY MORE THAN $1, ALTHOUGH THE GOVERNMENT
CONCEDES THAT IT IS NOT WORTH $100.  BECAUSE OF THE RESULT WE REACH IN
THIS CASE, WE HAVE NO OCCASION TO MAKE A FINAL DETERMINATION AS TO WHAT
VALUE THE STOCK WOULD HAVE UNDER A MARKET-VALUE ANALYSIS. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MATTHEW J. ZINN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WALTERS, THOMAS L. STAPLETON, AND LEONARD J. HENZKE, JR. 

JOHN C. SATTERFIELD ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS J. DUDLEY BUFORD. 

MAC ASBILL, JR., HAROLD S. COOK, D. JEFF LANCE, AND WILLIAM W.
BECKETT FILED A BRIEF FOR AGWAY, INC., ET AL. AS AMICI CURIAE URGING
AFFIRMANCE. 
..END :













FTC V. SPERRY & HUTCHINSON CO., 405 U.S. 233 


       FEDERAL TRADE COMMISSION V. SPERRY & HUTCHINSON CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 70-70.  ARGUED NOVEMBER 15, 1971-- DECIDED MARCH 1,

           1972 


THE FEDERAL TRADE COMMISSION (FTC) ENTERED A CEASE-AND-DESIST ORDER
AGAINST SPERRY & HUTCHINSON CO. (S&H), THE LARGEST AND OLDEST TRADING
STAMP COMPANY, ON THE GROUND THAT IT UNFAIRLY ATTEMPTED TO SUPPRESS THE
OPERATION OF TRADING STAMP EXCHANGES AND OTHER "FREE AND OPEN"
REDEMPTION OF STAMPS.  S&H ARGUED IN THE COURT OF APPEALS THAT ITS
CONDUCT WAS BEYOND THE REACH OF SEC. 5 OF THE FEDERAL TRADE COMMISSION
ACT, WHICH IT CLAIMED PERMITTED THE FTC TO RESTRAIN ONLY SUCH PRACTICES
AS ARE EITHER IN VIOLATION OF THE ANTITRUST LAWS, DECEPTIVE, OR
REPUGNANT TO PUBLIC MORALS.  THE COURT OF APPEALS REVERSED THE FTC,
HOLDING THAT THE FTC HAD NOT DEMONSTRATED THAT S&H'S CONDUCT VIOLATED
SEC. 5 BECAUSE IT HAD NOT SHOWN THAT THE CONDUCT CONTRAVENED EITHER THE
LETTER OR THE SPIRIT OF THE ANTITRUST LAWS.  HELD: 

1.  THE COURT OF APPEALS ERRED IN ITS CONSTRUCTION OF SEC. 5. 
CONGRESS, AS PREVIOUSLY RECOGNIZED BY THIS COURT, SEE FTC V. R. F.
KEPPEL & BRO., 291 U.S. 304, DEFINES THE POWERS OF THE FTC TO PROTECT
CONSUMERS AS WELL AS COMPETITORS AND AUTHORIZES IT TO DETERMINE WHETHER
CHALLENGED PRACTICES, THOUGH POSING NO THREAT TO COMPETITION WITHIN THE
LETTER OR SPIRIT OF THE ANTITRUST LAWS, ARE NEVERTHELESS EITHER UNFAIR
METHODS OF COMPETITION, OR UNFAIR OR DECEPTIVE ACTS OR PRACTICES.  THE
WHEELER-LEA ACT OF 1938 REAFFIRMS THIS BROAD CONGRESSIONAL MANDATE. 
PP. 239-244. 

2.  NONETHELESS THE FTC'S ORDER CANNOT BE SUSTAINED.  THE FTC DOES
NOT CHALLENGE THE COURT OF APPEALS' HOLDING THAT S&H'S CONDUCT VIOLATES
NEITHER THE LETTER NOR THE SPIRIT OF THE ANTITRUST LAWS AND ITS OPINION
IS BARREN OF ANY ATTEMPT TO REST ITS ORDER ON THE UNFAIRNESS OF
PARTICULAR COMPETITIVE PRACTICES OR ON CONSIDERATIONS OF CONSUMER
INTERESTS.  NOR DID THE FTC ARTICULATE ANY STANDARDS BY WHICH SUCH
ALTERNATIVE ASSESSMENTS MIGHT BE MADE.  PP. 245-249. 

3.  THE JUDGMENT OF THE COURT OF APPEALS SETTING ASIDE THE FTC'S
ORDER IS AFFIRMED, BUT BECAUSE THAT COURT ERRED IN ITS CONSTRUCTION OF
SEC. 5, ITS JUDGMENT IS MODIFIED TO THE EXTENT THAT THE CASE IS
REMANDED WITH INSTRUCTIONS TO RETURN IT TO THE FTC FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  PP. 249-250. 

432 F.2D 146, MODIFIED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL MEMBERS
JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN JUNE 1968 THE FEDERAL TRADE COMMISSION HELD THAT THE LARGEST AND
OLDEST COMPANY IN THE TRADING STAMP INDUSTRY, /1/  SPERRY & HUTCHINSON
(S&H), WAS VIOLATING SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, 38
STAT. 719, AS AMENDED, 15 U.S.C. 45(A)(1), IN THREE RESPECTS.  THE
COMMISSION FOUND THAT S&H IMPROPERLY REGULATED THE MAXIMUM RATE AT
WHICH TRADING STAMPS WERE DISPENSED BY ITS RETAIL LICENSEES; THAT IT
COMBINED WITH OTHERS TO REGULATE THE RATE OF STAMP DISPENSATION
THROUGHOUT THE INDUSTRY; AND THAT IT ATTEMPTED (ALMOST INVARIABLY
SUCCESSFULLY) TO SUPPRESS THE OPERATION OF TRADING STAMP EXCHANGES AND
OTHER "FREE AND OPEN" REDEMPTION OF STAMPS.  THE COMMISSION ENTERED
CEASE-AND-DESIST ORDERS ACCORDINGLY. 

S&H APPEALED ONLY THE THIRD OF THESE ORDERS; BEFORE THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT IT CONCEDED THAT IT ACTED AS THE
COMMISSION FOUND, BUT ARGUED THAT ITS CONDUCT IS BEYOND THE REACH OF
SEC. 5 OF THE ACT.  THAT SECTION PROVIDES, IN PERTINENT PART, THAT: 

     "THE COMMISSION IS EMPOWERED AND DIRECTED TO PREVENT PERSONS,

  PARTNERSHIPS, OR CORPORATIONS . . . FROM USING UNFAIR METHODS OF

COMPETITION IN COMMERCE AND UNFAIR OR DECEPTIVE ACTS OR PRACTICES

  IN COMMERCE."  15 U.S.C. 45(A)(6). 

AS S&H SEES IT, SEC. 5 EMPOWERS THE COMMISSION TO RESTRAIN ONLY SUCH
PRACTICES AS ARE EITHER IN VIOLATION OF THE ANTITRUST LAWS, DECEPTIVE,
OR REPUGNANT TO PUBLIC MORALS.  IN S&H'S VIEW, ITS PRACTICE OF
SUCCESSFULLY PROSECUTING STAMP EXCHANGES IN STATE AND FEDERAL COURTS
CANNOT BE RESTRAINED UNDER ANY OF THESE THEORIES. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AGREED AND REVERSED THE
COMMISSION, JUDGE WISDOM DISSENTING.  432 F.2D 146 (1970).  IN THE
LOWER COURT'S VIEW: 

     "TO BE THE TYPE OF PRACTICE THAT THE COMMISSION HAS THE POWER

  TO DECLARE 'UNFAIR' THE ACT COMPLAINED OF MUST FALL WITHIN ONE OF

  THE FOLLOWING TYPES OF VIOLATIONS:  (1) A PER SE VIOLATION OF

  ANTITRUST POLICY; (2) A VIOLATION OF THE LETTER OF EITHER THE

SHERMAN, CLAYTON, OR ROBINSON-PATMAN ACTS; OR (3) A VIOLATION OF

  THE SPIRIT OF THESE ACTS AS RECOGNIZED BY THE SUPREME COURT OF

  THE UNITED STATES."  ID., AT 150 (FOOTNOTE OMITTED). 

HOLDING THAT THE FTC HAD NOT DEMONSTRATED THAT S&H'S CONDUCT VIOLATED
EITHER THE LETTER OR THE SPIRIT OF THE ANTITRUST LAWS, THE COURT OF
APPEALS VACATED THE COMMISSION'S ORDER. 

THE FTC PETITIONED FOR REVIEW IN THIS COURT.  WE GRANTED CERTIORARI
TO DETERMINE THE QUESTIONS PRESENTED IN THE PETITION.  401 U.S. 992
(1971). 

        I

        THE CHALLENGED CONDUCT 

S&H HAS BEEN ISSUING TRADING STAMPS-- SMALL PIECES OF GUMMED PAPER
ABOUT THE SIZE OF POSTAGE STAMPS-- SINCE 1896.  IN 1964, THE YEAR FROM
WHICH DATA IN THIS LITIGATION ARE DERIVED, THE COMPANY HAD ABOUT 40% OF
THE BUSINESS IN AN INDUSTRY THAT ANNUALLY ISSUED 400 BILLION STAMPS TO
MORE THAN 200,000 RETAIL ESTABLISHMENTS FOR DISTRIBUTION IN CONNECTION
WITH RETAIL SALES OF SOME 40 BILLION DOLLARS.  IN 1964, MORE THAN 60%
OF ALL AMERICAN CONSUMERS SAVED S&H GREEN STAMPS. 

IN THE NORMAL COURSE, THE TRADING STAMP BUSINESS OPERATES AS
FOLLOWS.  S&H SELLS ITS STAMPS TO RETAILERS, PRIMARILY TO SUPERMARKETS
AND GAS STATIONS, AT A COST OF ABOUT $2.65 PER 1200 STAMPS; RETAILERS
GIVE THE STAMPS TO CONSUMERS (TYPICALLY AT A RATE OF ONE FOR EACH 10[
WORTH OF PURCHASES) AS A BONUS FOR THEIR PATRONAGE; CONSUMERS PASTE THE
STAMPS IN BOOKS OF 1,200 AND EXCHANGE THE BOOKS FOR "GIFTS" AT ANY OF
850 S&H REDEMPTION CENTERS MAINTAINED AROUND THE COUNTRY.  EACH BOOK
TYPICALLY BUYS BETWEEN $2.86 AND $3.31 WORTH OF MERCHANDISE DEPENDING
ON THE LOCATION OF THE REDEMPTION CENTER AND TYPE OF GOODS PRUCHASED. 
SINCE ITS DEVELOPMENT OF THIS CYCLE 75 YEARS AGO, S&H HAS SOLD OVER ONE
TRILLION STAMPS AND REDEEMED APPROXIMATELY 86% OF THEM. 

A CLUSTER OF FACTORS RELEVANT TO THIS LITIGATION TENDS TO DISRUPT
THIS CYCLE AND, IN S&H'S VIEW, TO THREATEN ITS BUSINESS.  AN INCOMPLETE
BOOK HAS NO REDEMPTION VALUE.  EVEN A COMPLETE BOOK IS OF LIMITED VALUE
BECAUSE MOST "GIFTS" MAY BE OBTAINED ONLY ON SUBMISSION OF MORE THAN
ONE BOOK.  FOR THESE REASONS A COLLECTOR OF ANOTHER TYPE OF STAMPS WHO
HAS ACQUIRED A SMALL NUMBER OF GREEN STAMPS MAY BENEFIT BY EXCHANGING
WITH A GREEN STAMP COLLECTOR WHO HAS OPPOSITE HOLDINGS AND
PREFERENCES.  SIMILARLY, BECAUSE OF THE SEASONAL USEFULNESS OR
IMMEDIATE UTILITY /2/  OF AN OBJECT SOUGHT, A COLLECTOR MAY WANT TO BUY
STAMPS OUTRIGHT AND THUS PUT HIMSELF IN A POSITION TO SECURE REDEMPTION
MERCHANDISE IMMEDIATELY THOUGH IT IS "PRICED" BEYOND HIS CURRENT STAMP
HOLDINGS.  OR A COLLECTOR MAY SEEK TO SELL HIS STAMPS IN ORDER TO USE
THE RESULTING CASH TO MAKE MORE BASIC PURCHASES (FOOD, SHOES, ETC.)
THAN REDEMPTION CENTERS NORMALLY PROVIDE. 

PERIODICALLY OVER THE PAST 70 YEARS PROFESSIONAL EXCHANGES HAVE
ARISEN TO SERVICE THIS DEMAND.  MOTIVATED BY THE PROSPECT OF PROFIT
REALIZABLE AS A RESULT OF SERVING AS MIDDLEMEN IN SWAPS, THE EXCHANGES
WILL SELL BOOKS OF S&H STAMPS PREVIOUSLY ACQUIRED FROM CONSUMERS, OR,
FOR A FEE, WILL GIVE A CONSUMER ANOTHER COMPANY'S STAMPS FOR S&H'S OR
VICE VERSA.  FURTHER, SOME REGULAR MERCHANTS HAVE OFFERED DISCOUNTS ON
THEIR OWN GOODS IN RETURN FOR S&H STAMPS.  RETAILERS DO THIS AS A MEANS
OF COMPETING WITH MERCHANTS IN THE AREA WHO ISSUE STAMPS.  BY OFFERING
A PRICE BREAK IN RETURN FOR STAMPS, THE REDEEMING MERCHANT REPLACES THE
INCENTIVE TO RETURN TO THE ISSUING MERCHANT (TO SECURE MORE STAMPS SO
AS TO BE ABLE TO OBTAIN A GIFT AT A REDEMPTION CENTER) WITH THE
ATTRACTION OF SECURING IMMEDIATE BENEFIT FROM THE STAMPS BY EXCHANGING
THEM FOR A DISCOUNT AT HIS STORE.  /3/ 

S&H FEARS THESE ACTIVITIES BECAUSE THEY ARE BELIEVED TO REDUCE
CONSUMER PROCLIVITY TO RETURN TO GREEN-STAMP-ISSUING STORES AND THUS
LOWER A STORE'S INCENTIVE TO BUY AND DISTRIBUTE STAMPS.  THE COMPANY
ATTEMPTS TO PRE-EMPT "TRAFFICKING" IN ITS STAMPS BY CONTRACTUAL
PROVISIONS REFLECTED IN A NOTICE ON THE INSIDE COVER OF EVERY S&H STAMP
BOOK.  THE NOTICE READS: 

"NEITHER THE STAMPS NOR THE BOOKS ARE SOLD TO MERCHANTS, COLLECTORS
OR ANY OTHER PERSONS, AT ALL TIMES THE TITLE THERETO BEING EXPRESSLY
RESERVED IN THE COMPANY . . . . THE STAMPS ARE ISSUED TO YOU AS
EVIDENCE OF CASH PAYMENT TO THE MERCHANTS ISSUING THE SAME.  THE ONLY
RIGHT WHICH YOU ACQUIRE IN SAID STAMPS IS TO PASTE THEM IN BOOKS LIKE
THIS AND PRESENT THEM TO US FOR REDEMPTION.  YOU MUST NOT DISPOSE OF
THEM OR MAKE ANY FURTHER USE OF THEM WITHOUT OUR CONSENT IN WRITING. 
WE WILL IN EVERY CASE WHERE APPLICATION IS MADE TO US GIVE YOU
PERMISSION TO TURN OVER YOUR STAMPS TO ANY OTHER BONA-FIDE COLLECTOR OF
S&H GREEN . . . STAMPS; BUT IF THE STAMPS OR THE BOOKS ARE TRANSFERRED
WITHOUT OUR CONSENT, WE RESERVE THE RIGHT TO RESTRAIN THEIR USE BY, OR
TAKE THEM FROM OTHER PARTIES.  IT IS TO YOUR INTEREST THAT YOU FILL THE
BOOK, AND PERSONALLY DERIVE THE BENEFITS AND ADVANTAGES OF REDEEMING
IT."  (REPRODUCED AT 2 APP. 230.) 

S&H MAKES NO EFFORT TO ENFORCE THIS CONDITION WHEN CONSUMERS
CASUALLY EXCHANGE STAMPS WITH EACH OTHER, THOUGH REPORTEDLY SOME 20% OF
ALL THE COMPANY'S STAMPS CHANGE HANDS IN THIS MANNER.  BUT S&H
VIGOROUSLY MOVES AGAINST UNAUTHORIZED COMMERCIAL EXCHANGES AND
REDEEMERS.  BETWEEN 1957 AND 1965, BY ITS OWN ACCOUNT THE COMPANY FILED
FOR 43 INJUNCTIONS AGAINST MERCHANTS WHO REDEEMED OR EXCHANGED ITS
STAMPS WITHOUT AUTHORIZATION, AND IT SENT LETTERS THREATENING LEGAL
ACTION TO 140 STAMP EXCHANGES AND 175 BUSINESSES THAT REDEEMED S&H
STAMPS.  IN ALMOST ALL INSTANCES THE THREAT OR THE REALITY OF SUIT
FORCED THE BUSINESSMEN TO ABANDON THEIR UNAUTHORIZED PRACTICES. 

        II

        THE REACH OF SECTION 5 

THE COMMISSION PRESENTED TWO QUESTIONS IN ITS PETITION FOR
CERTIORARI, THE FIRST BEING "(WHETHER SECTION 5 OF THE FEDERAL TRADE
COMMISSION ACT, WHICH DIRECTS THE COMMISSION TO PREVENT 'UNFAIR METHODS
OF COMPETITION . . . AND UNFAIR OR DECEPTIVE ACTS OR PRACTICES,' IS
LIMITED TO CONDUCT WHICH VIOLATES THE LETTER OR SPIRIT OF THE ANTITRUST
LAWS."  THE OTHER ISSUE RELATES TO THE SIGNIFICANCE OF STATE COURT
HOLDINGS THAT THE PRACTICES CHALLENGED HERE ARE LAWFUL.  /4/  NEITHER
QUESTION REQUESTS REVIEW OF THE COURT OF APPEALS' DECISION THAT THE
BUSINESS CONDUCT PROSCRIBED BY THE COMMISSION VIOLATES NEITHER THE
LETTER NOR SPIRIT OF THE ANTITRUST LAWS.  ACCORDINGLY, WE INTIMATE NO
OPINION ON THAT ISSUE AND TURN TO THE QUESTION OF THE REACH OF SEC. 5. 

IN REALITY, THE QUESTION IS A DOUBLE ONE:  FIRST, DOES SEC. 5
EMPOWER THE COMMISSION TO DEFINE AND PROSCRIBE AN UNFAIR COMPETITIVE
PRACTICE, EVEN THOUGH THE PRACTICE DOES NOT INFRINGE EITHER THE LETTER
OR THE SPIRIT OF THE ANTITRUST LAWS?  SECOND, DOES SEC. 5 EMPOWER THE
COMMISSION TO PROSCRIBE PRACTICES AS UNFAIR OR DECEPTIVE IN THEIR
EFFECT UPON CONSUMERS REGARDLESS OF THEIR NATURE OR QUALITY AS
COMPETITIVE PRACTICES OR THEIR EFFECT ON COMPETITION?  WE THINK THE
STATUTE, ITS LEGISLATIVE HISTORY, AND PRIOR CASES COMPEL AN AFFIRMATIVE
ANSWER TO BOTH QUESTIONS. 

WHEN CONGRESS CREATED THE FEDERAL TRADE COMMISSION IN 1914 AND
CHARTED ITS POWER AND RESPONSIBILITY UNDER SEC. 5, IT EXPLICITLY
CONSIDERED, AND REJECTED, THE NOTION THAT IT REDUCE THE AMBIGUITY OF
THE PHRASE "UNFAIR METHODS OF COMPETITION" BY TYING THE CONCEPT OF
UNFAIRNESS TO A COMMON-LAW OR STATUTORY STANDARD OR BY ENUMERATING THE
PARTICULAR PRACTICES TO WHICH IT WAS INTENDED TO APPLY.  SENATE REPORT
NO. 597, 63D CONG., 2D SESS., 13 (1914), PRESENTS THE REASONING THAT
LED THE SENATE COMMITTEE TO AVOID THE TEMPTATIONS OF PRECISION WHEN
FRAMING THE TRADE COMMISSION ACT: 

     "THE COMMITTEE GAVE CAREFUL CONSIDERATION TO THE QUESTION AS
TO

  WHETHER IT WOULD ATTEMPT TO DEFINE THE MANY AND VARIABLE UNFAIR

  PRACTICES WHICH PREVAIL IN COMMERCE AND TO FORBID THEIR

  CONTINUANCE OR WHETHER IT WOULD, BY A GENERAL DECLARATION

  CONDEMNING UNFAIR PRACTICES, LEAVE IT TO THE COMMISSION TO

  DETERMINE WHAT PRACTICES WERE UNFAIR.  IT CONCLUDED THAT THE

  LATTER COURSE WOULD BE THE BETTER, FOR THE REASON, AS STATED BY

  ONE OF THE REPRESENTATIVES OF THE ILLINOIS MANUFACTURERS'

  ASSOCIATION, THAT THERE WERE TOO MANY UNFAIR PRACTICES TO DEFINE,

  AND AFTER WRITING 20 OF THEM INTO THE LAW IT WOULD BE QUITE

  POSSIBLE TO INVENT OTHERS." 

THE HOUSE CONFERENCE REPORT WAS NO LESS EXPLICIT.  "IT IS IMPOSSIBLE TO
FRAME DEFINITIONS WHICH EMBRACE ALL UNFAIR PRACTICES.  THERE IS NO
LIMIT TO HUMAN INVENTIVENESS IN THIS FIELD.  EVEN IF ALL KNOWN UNFAIR
PRACTICES WERE SPECIFICALLY DEFINED AND PROHIBITED, IT WOULD BE AT ONCE
NECESSARY TO BEGIN OVER AGAIN.  IF CONGRESS WERE TO ADOPT THE METHOD OF
DEFINITION, IT WOULD UNDERTAKE AN ENDLESS TASK."  H.R. CONF. REP. NO.
1142, 63D CONG., 2D SESS., 19 (1914).  SEE ALSO RUBLEE, THE ORIGINAL
PLAN AND EARLY HISTORY OF THE FEDERAL TRADE COMMISSION, 11
ACAD.POL.SCI.PROC.  666, 667 (1926); BAKER & BAUM, SECTION 5 OF THE
FEDERAL TRADE COMMISSION ACT:  A CONTINUING PROCESS OF REDEFINITION, 7
VILL.L.REV.  517 (1962). 

SINCE THE SWEEP AND FLEXIBILITY OF THIS APPROACH WERE THUS MADE
CRYSTAL CLEAR, THERE HAVE TWICE BEEN JUDICIAL ATTEMPTS TO FENCE IN THE
GROUNDS UPON WHICH THE FTC MIGHT REST A FINDING OF UNFAIRNESS.  IN FTC
V. GRATZ, 253 U.S. 421 (1920), THE COURT OVER THE STRONG DISSENT OF MR.
JUSTICE BRANDEIS (WHO HAD BEEN INVOLVED IN DRAFTING THE TRADE
COMMISSION ACT), WROTE THAT WHILE THE "EXACT MEANING" OF THE PHRASE
"'UNFAIR METHOD OF COMPETITION' . . . IS IN DISPUTE," THE ONLY
PRACTICES THAT WERE SUBJECT TO THIS CHARACTERIZATION WERE THOSE THAT
WERE "HERETOFORE REGARDED AS OPPOSED TO GOOD MORALS BECAUSE
CHARACTERIZED BY DECEPTION, BAD FAITH, FRAUD OR OPPRESSION, OR AS
AGAINST PUBLIC POLICY BECAUSE OF THEIR DANGEROUS TENDENCY UNDULY TO
HINDER COMPETITION OR CREATE MONOPOLY."  ID., AT 427.  THIS VIEW WAS
REITERATED IN OTHER OPINIONS OVER THE NEXT DECADE.  SEE, E.G., FTC V.
CURTIS PUBLISHING CO., 260 U.S. 568 (1923), AND FTC V. SINCLAIR
REFINING CO., 261 U.S. 463, 475-476 (1923).  THE OPINION OF THE COURT
OF APPEALS' MAJORITY, CITING SINCLAIR IN SUPPORT OF ITS NARROW VIEW OF
THE FTC'S LEEWAY, IS IN THE TRADITION OF THESE AUTHORITIES. 

IN FTC V. RALADAM CO., 283 U.S. 643 (1931), A UNANIMOUS COURT HELD
THAT:  "THE PARAMOUNT AIM OF THE ACT IS THE PROTECTION OF THE PUBLIC
FROM THE EVILS LIKELY TO RESULT FROM THE DESTRUCTION OF COMPETITION OR
THE RESTRICTION OF IT IN A SUBSTANTIAL DEGREE.  . . . UNFAIR TRADE
METHODS ARE NOT PER SE UNFAIR METHODS OF COMPETITION."  "IT IS
OBVIOUS," THE COURT CONTINUED, 

"THAT THE WORD 'COMPETITION' IMPORTS THE EXISTENCE OF PRESENT OR
POTENTIAL COMPETITORS, AND THE UNFAIR METHODS MUST BE SUCH AS
INJURIOUSLY AFFECT OR TEND THUS TO AFFECT THE BUSINESS OF THESE
COMPETITORS-- THAT IS TO SAY, THE TRADER WHOSE METHODS ARE ASSAILED AS
UNFAIR MUST HAVE PRESENT OR POTENTIAL RIVALS IN TRADE WHOSE BUSINESS
WILL BE, OR IS LIKELY TO BE, LESSENED OR OTHERWISE INJURED.  IT IS THAT
CONDITION OF AFFAIRS WHICH THE COMMISSION IS GIVEN POWER TO CORRECT,
AND IT IS AGAINST THAT CONDITION OF AFFAIRS, AND NOT SOME OTHER, THAT
THE COMMISSION IS AUTHORIZED TO PROTECT THE PUBLIC.  . . . IF BROADER
POWERS BE DESIRABLE THEY MUST BE CONFERRED BY CONGRESS."  ID., AT 647
649.     NEITHER OF THESE LIMITING INTERPRETATIONS SURVIVES TO BUTTRESS
THE COURT OF APPEALS' VIEW OF THE INSTANT CASE.  EVEN IF THE FIRST LINE
OF CASES, GRATZ AND ITS PROGENY, STOOD UNIMPAIRED, THEIR DEFERENCE TO
ACTION TAKEN TO CONSTRAIN "DECEPTION, BAD FAITH, FRAUD OR OPPRESSION"
WOULD GRANT THE FTC GREATER POWER TO SET RIGHT WHAT IT PERCEIVES AS
WRONG THAN THE PANEL OF THE COURT OF APPEALS ACKNOWLEDGES.  BUT
FREQUENT OPPORTUNITY FOR RECONSIDERATION HAS CONSISTENTLY AND
EMPHATICALLY LED THIS COURT TO THE VIEW THAT THE PERSPECTIVE OF GRATZ
IS TOO CONFINED.  AS WE RECENTLY UNANIMOUSLY OBSERVED:  "LATER CASES OF
THIS COURT . . . HAVE REJECTED THE GRATZ VIEW AND IT IS NOW RECOGNIZED
IN LINE WITH THE DISSENT OF MR. JUSTICE BRANDEIS IN GRATZ THAT THE
COMMISSION HAS BROAD POWERS TO DECLARE TRADE PRACTICES UNFAIR."  FTC V.
BROWN SHOE CO., 384 U,S; 316, 320-321 (1966). 

THE LEADING CASE THAT RECOGNIZED A ROLE FOR THE FTC BEYOND THAT
MAPPED OUT IN GRATZ, FTC V. R. F. KEPPEL & BRO., INC., 291 U.S. 304
(1934), ALSO BROUGHT RALADAM INTO QUESTION; ON BOTH COUNTS IT SETS THE
STANDARD BY WHICH THE RANGE OF FTC JURISDICTION IS TO BE MEASURED
TODAY.  KEPPEL & BROTHERS SOLD PENNY CANDIES IN "BREAK AND TAKE" PACKS,
A FORM OF MERCHANDISING THAT INDUCED CHILDREN TO BUY LESSER AMOUNTS OF
CONCEDEDLY INFERIOR CANDY IN THE HOPE OF BY LUCK HITTING ON BONUS PACKS
CONTAINING EXTRA CANDY AND PRIZES.  THE FTC ISSUED A CEASE-AND-DESIST
ORDER UNDER SEC. 5 ON THE THEORY THAT THE POPULAR MARKETING SCHEME
CONTRAVENED PUBLIC POLICY INSOFAR AS IT TEMPTED CHILDREN TO GAMBLE AND
COMPELLED THOSE WHO WOULD SUCCESSFULLY COMPETE WITH KEPPEL TO ABANDON
THEIR SCRUPLES BY SIMILARLY TEMPTING CHILDREN. 

THE COURT HAD NO DIFFICULTY IN SUSTAINING THE FTC'S CONCLUSION THAT
THE PRACTICE WAS "UNFAIR," THOUGH ANY COMPETITOR COULD MAINTAIN HIS
POSITION SIMPLY BY ADOPTING THE CHALLENGED PRACTICE.  "(HERE," THE
COURT SAID, "THE COMPETITIVE METHOD IS SHOWN TO EXPLOIT CONSUMERS,
CHILDREN, WHO ARE UNABLE TO PROTECT THEMSELVES.  . . . (IT IS CLEAR
THAT THE PRACTICE IS OF THE SORT WHICH THE COMMON LAW AND CRIMINAL
STATUTES HAVE LONG DEEMED CONTRARY TO PUBLIC POLICY."  ID., AT 313. 

EN ROUTE TO THIS RESULT THE COURT MET KEPPEL'S ARGUMENTS THAT,
ABSENT AN ANTITRUST VIOLATION OR AT LEAST INCIPIENT INJURY TO
COMPETITORS, GRATZ AND RALADAM SO STRAITJACKETED THE FTC THAT THE
COMMISSION COULD NOT ISSUE A CEASE-AND-DESIST ORDER PROSCRIBING EVEN AN
IMMORAL PRACTICE.  IT HELD: 

     "NEITHER THE LANGUAGE NOR THE HISTORY OF THE ACT SUGGESTS THAT

  CONGRESS INTENDED TO CONFINE THE FORBIDDEN METHODS TO FIXED AND

  UNYIELDING CATEGORIES.  THE COMMON LAW AFFORDED A DEFINITION OF

  UNFAIR COMPETITION AND, BEFORE THE ENACTMENT OF THE FEDERAL TRADE

  COMMISSION ACT, THE SHERMAN ACT HAD LAID ITS INHIBITION UPON

  COMBINATIONS TO RESTRAIN OR MONOPOLIZE INTERSTATE COMMERCE WHICH

  THE COURTS HAD CONSTRUED TO INCLUDE RESTRAINTS UPON COMPETITION

  IN INTERSTATE COMMERCE.  IT WOULD NOT HAVE BEEN A DIFFICULT FEAT

  OF DRAFTSMANSHIP TO HAVE RESTRICTED THE OPERATION OF THE TRADE

  COMMISSION ACT TO THOSE METHODS OF COMPETITION IN INTERSTATE

  COMMERCE WHICH ARE FORBIDDEN AT COMMON LAW OR WHICH ARE LIKELY TO

  GROW INTO VIOLATIONS OF THE SHERMAN ACT, IF THAT HAD BEEN THE

  PURPOSE OF THE LEGISLATION."  ID., AT 310. 

THENCEFORTH, UNFAIR COMPETITIVE PRACTICES WERE NOT LIMITED TO THOSE
LIKELY TO HAVE ANTICOMPETITIVE CONSEQUENCES AFTER THE MANNER OF THE
ANTITRUST LAWS; NOR WERE UNFAIR PRACTICES IN COMMERCE CONFINED TO
PURELY COMPETITIVE BEHAVIOR. 

THE PERSPECTIVE OF KEPPEL, DISPLACING THAT OF RALADAM, WAS
LEGISLATIVELY CONFIRMED WHEN CONGRESS ADOPTED THE 1938 WHEELER-LEA
AMENDMENT, 52 STAT. 111, TO SEC. 5.  THE AMENDMENT ADDED THE PHRASE
"UNFAIR OR DECEPTIVE ACTS OR PRACTICES" TO THE SECTION'S ORIGINAL BAN
ON "UNFAIR METHODS OF COMPETITION" AND THUS MADE IT CLEAR THAT
CONGRESS, THROUGH SEC. 5, CHARGED THE FTC WITH PROTECTING CONSUMERS AS
WELL AS COMPETITORS.  THE HOUSE REPORT ON THE AMENDMENT SUMMARIZED
CONGRESSIONAL THINKING:  "(THIS AMENDMENT MAKES THE CONSUMER, WHO MAY
BE INJURED BY AN UNFAIR TRADE PRACTICE, OF EQUAL CONCERN, BEFORE THE
LAW, WITH THE MERCHANT OR MANUFACTURER INJURED BY THE UNFAIR METHOD OF
A DISHONEST COMPETITOR."  H.R. REP. NO. 1613, 75TH CONG., 1ST SESS., 3
(1937).  SEE ALSO S. REP. NO. 1705, 74TH CONG., 2D SESS., 2-3 (1936). 

THUS, LEGISLATIVE AND JUDICIAL AUTHORITIES ALIKE CONVINCE US THAT
THE FEDERAL TRADE COMMISSION DOES NOT ARROGATE EXCESSIVE POWER TO
ITSELF IF, IN MEASURING A PRACTICE AGAINST THE ELUSIVE, BUT
CONGRESSIONALLY MANDATED STANDARD OF FAIRNESS, IT, LIKE A COURT OF
EQUITY, CONSIDERS PUBLIC VALUES BEYOND SIMPLY THOSE ENSHRINED IN THE
LETTER OR ENCOMPASSED IN THE SPIRIT OF THE ANTITRUST LAWS.  /5/

        III 

THE GENERAL CONCLUSION JUST ENUNCIATED REQUIRES US TO HOLD THAT THE
COURT OF APPEALS ERRED IN ITS CONSTRUCTION OF SEC. 5 OF THE FEDERAL
TRADE COMMISSION ACT.  ORDINARILY WE WOULD SIMPLY REVERSE THE JUDGMENT
OF THE COURT OF APPEALS INSOFAR AS IT LIMITED THE UNFAIR PRACTICES
PROSCRIBED BY SEC. 5 TO THOSE CONTRARY TO THE LETTER AND SPIRIT OF THE
ANTITRUST LAWS AND WE WOULD REMAND THE CASE FOR CONSIDERATION OF
WHETHER THE CHALLENGED PRACTICES, THOUGH POSING NO THREAT TO
COMPETITION WITHIN THE PRECEPTS OF THE ANTITRUST LAWS, ARE NEVERTHELESS
EITHER (1) UNFAIR METHODS OF COMPETITION OR (2) UNFAIR OR DECEPTIVE
ACTS OR PRACTICES. 

WHAT WE DEEM TO BE PROPER CONCERNS ABOUT THE INTERACTION OF
ADMINISTRATIVE AGENCIES AND THE COURTS, HOWEVER, COUNSELS ANOTHER
COURSE IN THIS CASE.  IN THIS COURT THE COMMISSION ARGUES THAT, HOWEVER
CORRECT THE COURT OF APPEALS MAY BE IN HOLDING THE CHALLENGED S&H
PRACTICES BEYOND THE REACH OF THE LETTER OR SPIRIT OF THE ANTITRUST
LAWS, THE COURT OF APPEALS NEVERTHELESS ERRED IN ASSERTING THAT THE FTC
COULD MEASURE AND BAN CONDUCT ONLY ACCORDING TO SUCH NARROW CRITERIA. 
PROCEEDING FROM THIS PREMISE, WITH WHICH WE AGREE, THE COMMISSION'S
MAJOR SUBMISSION IS THAT ITS ORDER IS SUSTAINABLE AS A PROPER EXERCISE
OF ITS POWER TO PROSCRIBE PRACTICES UNFAIR TO CONSUMERS.  ITS MINOR
POSITION IS THAT IT ALSO PROPERLY FOUND S&H'S PRACTICES TO BE UNFAIR
COMPETITIVE METHODS APART FROM THEIR PROPRIETY UNDER THE ANTITRUST
LAWS. 

THE DIFFICULTY WITH THE COMMISSION'S POSITION IS THAT WE MUST LOOK
TO ITS OPINION, NOT TO THE ARGUMENTS OF ITS COUNSEL, FOR THE
UNDERPINNINGS OF ITS ORDER.  "CONGRESS HAS DELEGATED TO THE
ADMINISTRATIVE OFFICIAL AND NOT TO APPELLATE COUNSEL THE RESPONSIBILITY
FOR ELABORATING AND ENFORCING STATUTORY COMMANDS."  INVESTMENT CO.
INSTITUTE V. CAMP, 401 U.S. 617, 628 (1971).  WE CANNOT READ THE FTC
OPINION ON WHICH THE CHALLENGED ORDER RESTS AS PREMISED ON ANYTHING
OTHER THAN THE CLASSIC ANTITRUST RATIONALE OF RESTRAINT OF TRADE AND
INJURY TO COMPETITION. 

THE COMMISSION URGES REVERSAL OF THE COURT OF APPEALS AND APPROVAL
OF ITS OWN ORDER BECAUSE, IN ITS WORDS, "(THE ACT GIVES THE COMMISSION
COMPREHENSIVE POWER TO PREVENT TRADE PRACTICES WHICH ARE DECEPTIVE OR
UNFAIR TO CONSUMERS, REGARDLESS OF WHETHER THEY ALSO ARE
ANTICOMPETITIVE."  BRIEF FOR THE FTC 15.  IT SAYS THE COURT OF APPEALS
WAS "WRONG IN TWO WAYS:  YOU CAN HAVE AN ANTICOMPETITIVE IMPACT THAT IS
NOT A VIOLATION OF THE ANTITRUST LAWS AND VIOLATE SECTION 5.  YOU CAN
ALSO HAVE AN IMPACT UPON CONSUMERS WITHOUT REGARD TO COMPETITION AND
YOU CAN UPHOLD A SECTION 5 VIOLATION ON THAT GROUND."  TR. OF ORAL ARG.
18.  THOUGH COMPLETELY ACCURATE, THESE STATEMENTS CANNOT BE SQUARED
WITH THE COMMISSION'S HOLDING THAT "(IT IS ESSENTIAL IN THIS MATTER, WE
BELIEVE, AND AS WE HAVE HERETOFORE INDICATED, TO DETERMINE WHETHER OR
NOT THERE HAS BEEN OR MAY BE AN IMPAIRMENT OF COMPETITION," OPINION OF
COMMISSION, 1 APP. 175; ITS CONCLUSION THAT "(RESPONDENT . . . PREVENTS
. . . COMPETITIVE REACTIONS) AND THEREBY IT HAS RESTRAINED TRADE.  WE
BELIEVE THIS IS AN UNFAIR METHOD OF COMPETITION AND UN UNFAIR ACT AND
PRACTICE IN VIOLATION OF SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT
AND SO HOLD," 1 APP. 178; ITS OBSERVATION THAT: 

     "RESPONDENT'S INDIVIDUAL ACTS AND ITS ACTS WITH OTHERS TAKEN
TO

  SUPPRESS TRADING STAMP EXCHANGES AND OTHER STAMP REDEMPTION

  ACTIVITY ARE ALL PART OF A CLEARLY DEFINED RESTRICTIVE POLICY

  PURSUED BY THE RESPONDENT.  IN THE CIRCUMSTANCES SURROUNDING THIS

PARTICULAR PRACTICE IT IS DIFFICULT TO WHOLLY SEPARATE THE

  INDIVIDUAL ACTS FROM THE COLLECTIVE ACTS FOR THE PURPOSE OF

  MAKING AN ANALYSIS OF THE CONSEQUENCES UNDER THE ANTITRUST

  LAWS."  1 APP. 179;

AND LIKE STATEMENTS THROUGHOUT THE OPINION, SEE, E.G., 1 APP. 176-178,
PASSIM. 

THERE IS NO INDICATION IN THE COMMISSION'S OPINION THAT IT FOUND
S&H'S CONDUCT TO BE UNFAIR IN ITS EFFECT ON COMPETITORS BECAUSE OF
CONSIDERATIONS OTHER THAN THOSE AT THE ROOT OF THE ANTITRUST LAWS.  /6/
FOR ITS PART, THE THEORY THAT THE FTC'S DECISION IS DERIVED FROM ITS
CONCERN FOR CONSUMERS FINDS SUPPORT IN ONLY ONE LINE OF THE
COMMISSION'S OPINION.  THE COMMISSION'S OBSERVATION THAT S&H'S CONDUCT
LIMITED "STAMP COLLECTING CONSUMERS' . . . FREEDOM OF CHOICE IN THE
DISPOSITION OF TRADING STAMPS," 1 APP. 176, WILL NOT ALONE SUPPORT A
CONCLUSION THAT THE FTC HAS FOUND S&H GUILTY OF UNFAIR PRACTICES
BECAUSE OF DAMAGE TO CONSUMERS. 

ARGUABLY, THE COMMISSION'S FINDINGS, IN CONTRAST TO ITS OPINION, GO
BEYOND CONCERN WITH COMPETITION AND ADDRESS THEMSELVES TO
NONCOMPETITIVE AND CONSUMER INJURY AS WELL.  IT MAY ALSO BE THAT SUCH
FINDINGS WOULD HAVE EVIDENTIARY SUPPORT IN THE RECORD.  BUT EVEN IF THE
FINDINGS WERE CONSIDERED TO BE ADEQUATE FOUNDATION FOR AN OPINION AND
ORDER RESTING ON UNFAIR CONSEQUENCES TO CONSUMER INTERESTS, THEY STILL
FAIL TO SUSTAIN THE COMMISSION ACTION; FOR THE COMMISSION HAS NOT
RENDERED AN OPINION WHICH, BY THE ROUTE SUGGESTED, LINKS ITS FINDINGS
AND ITS CONCLUSIONS.  THE OPINION IS BARREN OF ANY ATTEMPT TO REST THE
ORDER ON ITS ASSESSMENT OF PARTICULAR COMPETITIVE PRACTICES OR
CONSIDERATIONS OF CONSUMER INTERESTS INDEPENDENT OF POSSIBLE OR ACTUAL
EFFECTS ON COMPETITION.  NOR WERE ANY STANDARDS FOR DOING SO REFERRED
TO OR DEVELOPED. 

OUR VIEW IS THAT "THE CONSIDERATIONS URGED HERE IN SUPPORT OF THE
COMMISSION'S ORDER WERE NOT THOSE UPON WHICH ITS ACTION WAS BASED." 
SEC V. CHENERY CORP., 318 U.S. 80, 92 (1943).  AT THE LEAST THE
COMMISSION HAS FAILED TO "ARTICULATE ANY RATIONAL CONNECTION BETWEEN
THE FACTS FOUND AND THE CHOICE MADE."  BURLINGTON TRUCK LINES V. UNITED
STATES, 371 U.S. 156, 168 (1962). 

THE COMMISSION'S ACTION BEING FLAWED IN THIS RESPECT, WE CANNOT
SUSTAIN ITS ORDER.  "(THE ORDERLY FUNCTIONING OF THE PROCESS OF REVIEW
REQUIRES THAT THE GROUNDS UPON WHICH THE ADMINISTRATIVE AGENCY ACTED BE
CLEARLY DISCLOSED AND ADEQUATELY SUSTAINED."  CHENERY, SUPRA, AT 94. 
BURLINGTON TRUCK LINES, SUPRA, AT 169.  A COURT CANNOT LABEL A PRACTICE
"UNFAIR" UNDER 15 U.S.C. 45(A)(1).  IT CAN ONLY AFFIRM OR VACATE AN
AGENCY'S JUDGMENT TO THAT EFFECT.  "IF AN ORDER IS VALID ONLY AS A
DETERMINATION OF POLICY OR JUDGMENT WHICH THE AGENCY ALONE IS
AUTHORIZED TO MAKE AND WHICH IT HAS NOT MADE, A JUDICIAL JUDGMENT
CANNOT BE MADE TO DO SERVICE FOR AN ADMINISTRATIVE JUDGMENT."  CHENERY,
SUPRA, AT 88.  AND AS WAS REPEATED ON OTHER OCCASIONS: 

"FOR THE COURTS TO SUBSTITUTE THEIR OR COUNSEL'S DISCRETION FOR THAT
OF THE COMMISSION IS INCOMPATIBLE WITH THE ORDERLY FUNCTIONING OF THE
PROCESS OF JUDICIAL REVIEW.  THIS IS NOT TO DEPRECATE, BUT TO VINDICATE
(SEE PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 197), THE
ADMINISTRATIVE PROCESS, FOR THE PURPOSE OF THE RULE IS TO AVOID
'PROPELLING) THE COURT INTO THE DOMAIN WHICH CONGRESS HAS SET ASIDE
EXCLUSIVELY FOR THE ADMINISTRATIVE AGENCY.'  332 U.S.,AT 196." 
BURLINGTON TRUCK LINES, SUPRA, AT 169. 

IN THESE CIRCUMSTANCES, BECAUSE THE COURT OF APPEALS' JUDGMENT THAT
S&H'S PRACTICES DID NOT VIOLATE EITHER THE LETTER OR THE SPIRIT OF THE
ANTITRUST LAWS WAS NOT ATTACKED AND REMAINS UNDISTURBED HERE, AND
BECAUSE THE COMMISSION'S ORDER COULD NOT PROPERLY BE SUSTAINED ON OTHER
GROUNDS, THE JUDGMENT OF THE COURT OF APPEALS SETTING ASIDE THE
COMMISSION'S ORDER IS AFFIRMED.  THE COURT OF APPEALS ERRED, HOWEVER,
IN ITS CONSTRUCTION OF SEC. 5; HAD IT ENTERTAINED THE PROPER VIEW OF
THE REACH OF THE SECTION, THE PREFERABLE COURSE WOULD HAVE BEEN TO
REMAND THE CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS.  CHENERY,
SUPRA, AT 95; BURLINGTON, SUPRA, AT 174; FPC V. UNITED GAS PIPE LINE
CO., 393 U.S. 71 (1968).  ACCORDINGLY, THE JUDGMENT OF THE COURT OF
APPEALS IS MODIFIED TO THIS EXTENT AND THE CASE IS REMANDED TO THE
COURT OF APPEALS WITH INSTRUCTIONS TO REMAND IT TO THE COMMISSION FOR
SUCH FURTHER PROCEEDINGS, NOT INCONSISTENT WITH THIS OPINION, AS MAY BE
APPROPRIATE. 

             SO ORDERED. 

/1/  ON THE NATURE OF THE INDUSTRY, SEE GENERALLY COMMENT, TRADING
STAMPS, 37 N.Y.U.L.REV.  1090 (1962).  THE COMMISSION PROCEEDINGS IN
THE INSTANT CASE ARE DISCUSSED IN COMMENT, THE ATTACK ON TRADING STAMPS
- AN EXPANDED USE OF SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT, 57
GEO.L.J. 1082 (1969). 

/2/  OFTEN MERCHANDISE OBTAINED BY REDEMPTION IS USED AS A GIFT. 

/3/  THE EFFORTS OF SOME RETAILERS TO REISSUE S&H STAMPS ARE NOT
INVOLVED IN THIS CASE.  THE FTC EXPLICITLY LEFT S&H FREE TO SEEK
INJUNCTIONS AGAINST REISSUANCE.  1 APP. 169. 

/4/  THOUGH THE COURT OF APPEALS REFERRED TO STATE AND FEDERAL COURT
DECISIONS THAT APPROVED S&H'S PRACTICE, OUR READING OF ITS OPINION
LEAVES NO DOUBT THAT IT DID NOT REVERSE THE FTC ORDER ON THE ERRONEOUS
THEORY THAT SUCH DETERMINATIONS MIGHT FORECLOSE A CONTRARY FTC SEC. 5
DECISION.  WE THEREFORE PUT ASIDE THE GOVERNMENT'S SECOND QUESTION AS
IRRELEVANT AND FOCUS ON ITS FIRST CONTENTION. 

/5/  THE COMMISSION HAS DESCRIBED THE FACTORS IT CONSIDERS IN
DETERMINING WHETHER A PRACTICE THAT IS NEITHER IN VIOLATION OF THE
ANTITRUST LAWS NOR DECEPTIVE IS NONETHELESS UNFAIR: 

"(1) WHETHER THE PRACTICE, WITHOUT NECESSARILY HAVING BEEN
PREVIOUSLY CONSIDERED UNLAWFUL, OFFENDS PUBLIC POLICY AS IT HAS BEEN
ESTABLISHED BY STATUTES, THE COMMON LAW, OR OTHERWISE-- WHETHER, IN
OTHER WORDS, IT IS WITHIN AT LEAST THE PENUMBRA OF SOME COMMON-LAW,
STATUTORY, OR OTHER ESTABLISHED CONCEPT OF UNFAIRNESS; (2) WHETHER IT
IS IMMORAL, UNETHICAL, OPPRESSIVE, OR UNSCRUPULOUS; (3) WHETHER IT
CAUSES SUBSTANTIAL INJURY TO CONSUMERS (OR COMPETITORS OR OTHER
BUSINESSMEN)."  STATEMENT OF BASIS AND PURPOSE OF TRADE REGULATION RULE
408, UNFAIR OR DECEPTIVE ADVERTISING AND LABELING OF CIGARETTES IN
RELATION TO THE HEALTH HAZARDS OF SMOKING.  29 FED.REG.  8355 (1964). 
S&H ARGUES THAT A LATER PORTION OF THIS STATEMENT COMMITS THE FTC TO
THE VIEW THAT MISCONDUCT IN RESPECT OF THE THIRD OF THESE CRITERIA IS
NOT SUBJECT TO CONSTRAINT AS "UNFAIR" ABSENT A CONCOMITANT SHOWING OF
MISCONDUCT ACCORDING TO THE FIRST OR SECOND OF THESE CRITERIA.  BUT ALL
THE FTC SAID IN THE STATEMENT REFERRED TO WAS THAT "(THE WIDE VARIETY
OF DECISIONS INTERPRETING THE ELUSIVE CONCEPT OF UNFAIRNESS AT LEAST
MAKES CLEAR THAT A METHOD OF SELLING VIOLATES SECTION 5 IF IT IS
EXPLOITIVE OR INEQUITABLE AND IF, IN ADDITION TO BEING MORALLY
OBJECTIONABLE, IT IS SERIOUSLY DETRIMENTAL TO CONSUMERS OR OTHERS." 
IBID. 

/6/  THE COMMISSION DID EXPLICITLY DECLINE TO ASSESS S&H'S CONDUCT IN
LIGHT OF ONE LEADING ANTITRUST CASE.  IN UNITED STATES V. ARNOLD,
SCHWINN & CO., 388 U.S. 365, 379 (1967), THIS COURT HELD THAT:  "UNDER
THE SHERMAN ACT, IT IS UNREASONABLE WITHOUT MORE FOR A MANUFACTURER TO
SEEK TO RESTRICT AND CONFINE AREAS OR PERSONS WITH WHOM AN ARTICLE MAY
BE TRADED AFTER THE MANUFACTURER HAS PARTED WITH DOMINION OVER IT.
WHITE MOTOR (V. UNITED STATES, 372 U.S. 253 (1963)); DR. MILES (MEDICAL
CO. V. PARK & SONS CO., 220 U.S. 373 (1911)).  SUCH RESTRAINTS ARE SO
OBVIOUSLY DESTRUCTIVE OF COMPETITION THAT THEIR MERE EXISTINCE IS
ENOUGH.  IF THE MANUFACTURER PARTS WITH DOMINION OVER HIS PRODUCT OR
TRANSFERS RISK OF LOSS TO ANOTHER, HE MAY NOT RESERVE CONTROL OVER ITS
DESTINY OR THE CONDITIONS OF ITS RESALE." 

ARGUABLY, S&H'S PRACTICE IS PROSCRIBED BY THIS DOCTRINE.  WHEN THE
FTC DECLINED TO RELY ON THIS PRECEDENT, HOWEVER, IT DID SO NOT TO TURN
TO CONSIDERATIONS OTHER THAN THOSE EMBEDDED IN THE ANTITRUST LAWS, BUT
INSTEAD TO LOOK FOR CONSIDERATIONS LESS "TECHNICAL" AND MORE DEEPLY
ROOTED IN ANTITRUST POLICY: 

"WE DO NOT BELIEVE IT APPROPRIATE TO DECIDE THE BROAD COMPETITIVE
QUESTIONS PRESENTED IN THIS RECORD ON THE NARROW AND TECHNICAL BASIS OF
A RESTRAINT ON ALIENATION.  THE CIRCUMSTANCES HERE ARE MUCH DIFFERENT
FROM THAT WHERE PRODUCTS ARE TRANSFERRED TO A DEALER FOR RESALE.  THEY
ARE COMPLICATED BY THE NATURE OF THE TRADING STAMP SCHEME.  IT IS
ESSENTIAL IN THIS MATTER, WE BELIEVE, AND AS WE HAVE HERETOFORE
INDICATED, TO DETERMINE WHETHER OR NOT THERE HAS BEEN OR MAY BE AN
IMPAIRMENT OF COMPETITION.  THUS, WE INTEND TO LOOK AT THE SUBSTANCE OF
THE ALLEGEDLY ILLEGAL PRACTICE RATHER THAN TO DECIDE THE CASE BY
APPLICATION OF A TECHNICAL FORMULA."  1 APP. 175-176. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

ASSISTANT ATTORNEY GENERAL MCLAREN ARGUED THE CAUSE FOR PETITIONER. 
WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, HAROLD D.
RHYNEDANCE, JR., KARL H. BUSCHMANN, AND RICHARD H. STERN. 

HAROLD L. RUSSELL ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE SAMUEL K. ABRAMS, CLAUS MOTULSKY, J. SAM WINTERS, ALAN R.
WENTZEL, AND WAYNE T. ELLIOTT. 
..END :
















HAWAII V. STANDARD OIL CO., 405 U.S. 251 


       HAWAII V. STANDARD OIL CO. OF CALIFORNIA ET AL.

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 70-49.  ARGUED OCTOBER 21, 1971-- DECIDED MARCH 1,
1972 


DAMAGES FOR AN INJURY TO ITS GENERAL ECONOMY ALLEGEDLY ATTRIBUTABLE TO
A VIOLATION OF THE ANTITRUST LAWS.  PP. 257-266. 

431 F.2D 1282, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, POST, P. 266.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED POST, P. 270.  POWELL
AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE ISSUE PRESENTED BY THIS CASE IS WHETHER SEC. 4 OF THE CLAYTON
ACT, 38 STAT. 731, 15 U.S.C. 15, AUTHORIZES A STATE TO SUE FOR DAMAGES
FOR AN INJURY TO ITS ECONOMY ALLEGEDLY ATTRIBUTABLE TO A VIOLATION OF
THE ANTITRUST LAWS OF THE UNITED STATES.  WE HOLD THAT IT DOES NOT. 

        I. PROCEDURAL HISTORY 

HAWAII FILED ITS INITIAL COMPLAINT ON APRIL 1, 1968, AGAINST THREE
OF THE FOUR RESPONDENTS.  /1/  ON MAY 24, 1968, AND AGAIN ON AUGUST 19,
1968, HAWAII FILED AMENDED COMPLAINTS.  THE THIRD AMENDED COMPLAINT
FILED ON SEPTEMBER 6, 1968, RAISED FOR THE FIRST TIME THE ISSUE
PRESENTED HEREIN.  THAT COMPLAINT NAMED ALL FOUR RESPONDENTS AS
DEFENDANTS AND CHARGED THEM WITH VIOLATING THE SHERMAN ACT, 26 STAT.
209, 15 U.S.C. 1, IN THE FOLLOWING WAYS:  BY ENTERING INTO UNLAWFUL
CONTRACTS; BY CONSPIRING AND COMBINING TO RESTRAIN TRADE AND COMMERCE
IN THE SALE, MARKETING, AND DISTRIBUTION OF REFINED PETROLEUM PRODUCTS;
AND BY ATTEMPTING TO MONOPOLIZE AND ACTUALLY MONOPOLIZING SAID TRADE
AND COMMERCE.  /2/  THE STATE SOUGHT TO RECOVER DAMAGES IN THREE
DISTINCT CAPACITIES:  IN ITS PROPRIETARY CAPACITY FOR OVERCHARGES FOR
PETROLEUM PRODUCTS SOLD TO THE STATE ITSELF (FIRST COUNT); AS PARENS
PATRIAE FOR SIMILAR OVERCHARGES PAID BY THE CITIZENS OF THE STATE
(SECOND COUNT); AND AS THE REPRESENTATIVE OF THE CLASS OF ALL
PURCHASERS IN HAWAII FOR IDENTICAL OVERCHARGES (THIRD COUNT). 

THE SECOND COUNT READ, IN RELEVANT PART: 

"18.  THE ABOVE-NAMED PLAINTIFF (HAWAII), (ACTS) IN ITS

CAPACITY AS PARENS PATRIAE, AND/OR AS TRUSTEE FOR THE USE OF ITS

  CITIZENS WHO PURCHASED REFINED PETROLEUM PRODUCTS, FROM ANY

  DEFENDANT OR CO-CONSPIRATOR HEREIN . . . . 

    "19.  THE UNLAWFUL CONTRACTS, COMBINATION, CONSPIRACY IN

  RESTRAINT OF TRADE, UNLAWFUL COMBINATION AND CONSPIRACY TO

  MONOPOLIZE, AND MONOPOLIZATION HAVE RESULTED IN THE PLAINTIFF, .

  . . AND IN ITS CITIZENS, PAYING MORE FOR REFINED PETROLEUM

  PRODUCTS THAN WOULD HAVE BEEN PAID IN A FREELY OPERATING

  COMPETITIVE MARKET.  PLAINTIFF HAS NOT YET ASCERTAINED THE

  PRECISE EXTENT OF SAID DAMAGE TO ITSELF AND ITS CITIZENS,

  HOWEVER, WHEN SAID AMOUNT HAS BEEN ASCERTAINED, PLAINTIFF WILL

  ASK LEAVE OF COURT TO INSERT SAID SUM HEREIN." 

VERY SIMILAR LANGUAGE APPEARED IN THE CLASS-ACTION COUNT.  IN ALL THREE
COUNTS, THE STATE SOUGHT BOTH INJUNCTIVE AND MONETARY RELIEF. 

AFTER EACH OF THE RESPONDENTS MOVED TO DISMISS THE SECOND AND THIRD
COUNTS OF THE COMPLAINT, THE DISTRICT COURT HELD A HEARING TO DETERMINE
THE PROPRIETY OF THE STATE'S SUING ON BEHALF OF ITS CITIZENS.  WITH
RESPECT TO COUNT TWO, THE COURT HELD THAT HAWAII "HAS NOT EVEN ALLEGED
AN INTEREST IN ITS CITIZENS' CLAIMS, MUCH LESS INTEREST OF ITS OWN
ASIDE FROM THE STATE'S PROPRIETARY RIGHTS," AND GRANTED THE MOTIONS TO
DISMISS.  /3/  VIEWING THE CLASS ACTION AS BEING "OVERLAPPING, PARALLEL
AND/OR ALTERNATIVE TO" THE PARENS PATRIAE CLAIM, THE COURT DISMISSED
THE THIRD COUNT AS WELL.  /4/ 

HAWAII FILED ITS FOURTH AMENDED COMPLAINT ON FEBRUARY 27, 1969. 
THIS IS THE COMPLAINT WITH WHICH WE ARE CONCERNED.  COUNT ONE CONTAINS
A REITERATION OF HAWAII'S CLAIM THAT IN ITS PROPRIETARY CAPACITY THE
STATE PAID AN EXCESSIVE PRICE FOR THE PETROLEUM PRODUCTS THAT IT
PURCHASED FROM RESPONDENTS.  COUNT TWO STATES A NEW PARENS PATRIAE
CLAIM, AND COUNT THREE IS DRAWN AS A CLASS ACTION. 

THE PARENS PATRIAE CLAIM IS STATED IN THE FOLLOWING MANNER: 

     "19.  THE STATE OF HAWAII, ACTING THROUGH ITS ATTORNEY
GENERAL,

  BRINGS THIS ACTION BY VIRTUE OF ITS DUTY TO PROTECT THE GENERAL

  WELFARE OF THE STATE AND ITS CITIZENS, ACTING HEREIN AS PARENS

  PATRIAE, TRUSTEE, GUARDIAN AND REPRESENTATIVE OF ITS CITIZENS, TO

  RECOVER DAMAGES FOR, AND SECURE INJUNCTIVE RELIEF AGAINST, THE

  VIOLATIONS OF THE ANTITRUST LAWS HEREINBEFORE ALLEGED. 

"20.  THE UNLAWFUL CONTRACTS, COMBINATION AND CONSPIRACY IN

  RESTRAINT OF TRADE, UNLAWFUL COMBINATION AND CONSPIRACY TO

  MONOPOLIZE AND MONOPOLIZATION, HEREINBEFORE ALLEGED, HAVE INJURED

  AND ADVERSELY AFFECTED THE ECONOMY AND PROSPERITY OF THE STATE OF

  HAWAII IN, AMONG OTHERS, THE FOLLOWING WAYS: 

     "(A) REVENUES OF ITS CITIZENS HAVE BEEN WRONGFULLY EXTRACTED
FROM THE STATE OF HAWAII; 

     "(B) TAXES AFFECTING THE CITIZENS AND COMMERCIAL ENTITIES HAVE

BEEN INCREASED TO AFFECT SUCH LOSSES OF REVENUES AND INCOME; 

     "(C) OPPORTUNITY IN MANUFACTURING, SHIPPING AND COMMERCE HAVE

  (SIC) BEEN RESTRICTED AND CURTAILED; 

"(D) THE FULL AND COMPLETE UTILIZATION OF THE NATURAL WEALTH OF

  THE STATE HAS BEEN PREVENTED; 

     "(E) THE HIGH COST OF MANUFACTURE IN HAWAII HAS PRECLUDED
GOODS

  MADE THERE FROM EQUAL COMPETITIVE ACCESS WITH THOSE OF OTHER

  STATES TO THE NATIONAL MARKET; 

     "(F) MEASURES TAKEN BY THE STATE TO PROMOTE THE GENERAL

  PROGRESS AND WELFARE OF ITS PEOPLE HAVE BEEN FRUSTRATED; 

     "(G) THE HAWAII ECONOMY HAS BEEN HELD IN A STATE OF ARRESTED
DEVELOPMENT. 

  "21.  PLAINTIFF HAS NOT YET ASCERTAINED THE PRECISE EXTENT OF

  SAID DAMAGE TO ITSELF AND ITS CITIZENS; HOWEVER, WHEN SAID AMOUNT

  HAS BEEN ASCERTAINED, PLAINTIFF WILL ASK LEAVE OF COURT TO INSERT

  SAID SUM HEREIN." 

THE CLASS-ACTION COUNT IS SIMILAR TO THAT IN THE THIRD AMENDED
COMPLAINT.  AS IN THE PREVIOUS COMPLAINT, HAWAII SEEKS BOTH INJUNCTIVE
AND MONETARY RELIEF IN EACH COUNT. 

RESPONDENTS MOVED TO DISMISS THE SECOND AND THIRD COUNTS, AND
HEARING WAS AGAIN HAD IN THE DISTRICT COURT.  THE CLASS ACTION WAS
DISMISSED BY THE COURT ON THE GROUND THAT "UNDER THE CIRCUMSTANCES . .
. , THE CLASS ACTION BASED UPON THE INJURY TO EVERY INDIVIDUAL
PURCHASER OF GASOLINE IN THE STATE, . . . IN THE CONTEXT OF THE
PLEADINGS, WOULD BE UNMANAGEABLE."  /5/  IN A RATHER EXTENSIVE OPINION,
THE COURT EXAMINED THE LAW THAT HAS DEVELOPED CONCERNING SUITS BY A
STATE AS PARENS PATRIAE AND DENIED THE MOTIONS TO DISMISS THE SECOND
COUNT.  301 F.SUPP.  982 (1969).  RECOGNIZING THAT THE STATE OF THE LAW
WAS UNCLEAR, THE DISTRICT COURT CERTIFIED ITS DECISION DENYING THE
MOTIONS TO DISMISS FOR AN INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C.
1291(B).  /6/  ON APPEAL, THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT REVERSED THE DECISION OF THE DISTRICT COURT AND DIRECTED
THAT THE SECOND COUNT OF THE COMPLAINT BE DISMISSED.  /7/  431 F.2D
1282 (1970).  CERTIORARI WAS GRANTED SO THAT WE MIGHT REVIEW THIS
DECISION.  401 U.S. 936 (1971). 

        II.  THE STATE AS PARENS PATRIAE 

THE CONCEPT OF PARENS PATRIAE IS DERIVED FROM THE ENGLISH
CONSTITUTIONAL SYSTEM.  AS THE SYSTEM DEVELOPED FROM ITS FEUDAL
BEGINNINGS, THE KING RETAINED CERTAIN DUTIES AND POWERS, WHICH WERE
REFERRED TO AS THE "ROYAL PREROGATIVE."  MALINA & BLECHMAN, PARENS
PATRIAE SUITS FOR TREBLE DAMAGES UNDER THE ANTITRUST LAWS, 65
NW.U.L.REV.  193, 197 (1970) (HEREINAFTER MALINE & BLECHMAN); STATE
PROTECTION OF ITS ECONOMY AND ENVIRONMENT:  PARENS PATRIAE SUITS FOR
DAMAGES, 6 COL.J.L.& SOC. PROB.  411, 412 (1970) (HEREINAFTER STATE
PROTECTION).  THESE POWERS AND DUTIES WERE SAID TO BE EXERCISED BY THE
KING IN HIS CAPACITY AS "FATHER OF THE COUNTRY."  /8/  TRADITIONALLY,
THE TERM WAS USED TO REFER TO THE KING'S POWER AS GUARDIAN OF PERSONS
UNDER LEGAL DISABILITIES TO ACT FOR THEMSELVES.  /9/  FOR EXAMPLE,
BLACKSTONE REFERS TO THE SOVEREIGN OR HIS REPRESENTATIVE AS "THE
GENERAL GUARDIAN OF ALL INFANTS, IDIOTS, AND LUNATICS,"  /10/  AND AS
THE SUPERINTENDENT OF "ALL CHARITABLE USES IN THE KINGDOM."  /11/  IN
THE UNITED STATES, THE "ROYAL PREROGATIVE" AND THE "PARENS PATRIAE"
FUNCTION OF THE KING PASSED TO THE STATES. 

THE NATURE OF THE PARENS PATRIAE SUIT HAS BEEN GREATLY EXPANDED IN
THE UNITED STATES BEYOND THAT WHICH EXISTED IN ENGLAND.  THIS EXPANSION
WAS FIRST EVIDENCED IN LOUISIANA V. TEXAS, 176 U.S. 1 (1900), A CASE IN
WHICH THE STATE OF LOUISIANA BROUGHT SUIT TO ENJOIN OFFICIALS OF THE
STATE OF TEXAS FROM SO ADMININSTERING THE TEXAS QUARANTINE REGULATIONS
AS TO PREVENT LOUISIANA MERCHANTS FROM SENDING GOODS INTO TEXAS.  THIS
COURT RECOGNIZED THAT LOUISISNA WAS ATTEMPTING TO SUE, NOT BECAUSE OF
ANY PARTICULAR INJURY TO A BUSINESS OF THE STATE, BUT AS PARENS PATRIAE
FOR ALL HER CITIZENS.  176 U.S.,AT 19.  WHILE THE COURT FOUND THAT
PARENS PATRIAE COULD NOT PROPERLY BE INVOKED IN THAT CASE, THE
PROPRIETY AND UTILITY OF PARENS PATRIAE SUITS WERE CLEARLY RECOGNIZED. 

THIS COURT'S ACCEPTANCE OF THE NOTION OF PARENS PATRIAE SUITS IN
LOUISIANA V. TEXAS WAS FOLLOWED IN A SERIES OF CASES:  MISSOURI V.
ILLINOIS, 180 U.S. 208 (1901) (HOLDING THAT MISSOURI WAS PERMITTED TO
SUE ILLINOIS AND A CHICAGO SANITATION DISTRICT ON BEHALF OF MISSOURI
CITIZENS TO ENJOIN THE DISCHARGE OF SEWAGE INTO THE MISSISSIPPI RIVER);
KANSAS V. COLORADO, 206 U.S. 46 (1907) (HOLDING THAT KANSAS WAS
PERMITTED TO SUE AS PARENS PATRIAE TO ENJOIN THE DIVERSION OF WATER
FROM AN INTERSTATE STREAM); GEORGIA V. TENNESSEE COPPER CO., 206 U.S.
230 (1907) (HOLDING THAT GEORGIA WAS ENTITLED TO SUE TO ENJOIN FUMES
FROM A COPPER PLANT ACROSS THE STATE BORDER FROM INJURING LAND IN FIVE
GEORGIA COUNTIES); NEW YORK V. NEW JERSEY, 256 U.S. 296 (1921) (HOLDING
THAT NEW YORK COULD SUE TO ENJOIN THE DISCHARGE OF SEWAGE INTO THE NEW
YORK HARBOR); PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553 (1923)
(HOLDING THAT PENNSYLVANIA MIGHT SUE TO ENJOIN RESTRAINTS ON THE
COMMERCIAL FLOW OF NATURAL GAS); AND NORTH DAKOTA V. MINNESOTA, 263
U.S. 365 (1923) (HOLDING THAT MINNESOTA COULD SUE TO ENJOIN CHANGES IN
DRAINAGE WHICH INCREASE THE FLOW OF WATER IN AN INTERSTATE STREAM). 

THESE CASES ESTABLISH THE RIGHT OF A STATE TO SUE AS PARENS PATRIAE
TO PREVENT OR REPAIR HARM TO ITS "QUASI-SOVEREIGN" INTERESTS.  /12/
THEY DEAL PRIMARILY WITH ORIGINAL SUITS BROUGHT DIRECTLY IN THIS COURT
PURSUANT TO ART. III, SEC. 2, OF THE CONSTITUTION UNDER COMMON-LAW
RIGHTS OF ACTION.  THE QUESTION IN THIS CASE IS NOT WHETHER HAWAII MAY
MAINTAIN ITS LAWSUIT ON BEHALF OF ITS CITIZENS, BUT RATHER WHETHER THE
INJURY FOR WHICH IT SEEKS TO RECOVER IS COMPENSABLE UNDER SEC. 4 OF THE
CLAYTON ACT.  HENCE, HAWAII'S CLAIM CANNOT BE RESOLVED SIMPLY BY
REFERENCE TO ANY GENERAL PRINCIPLES GOVERNING PARENS PATRIAE ACTIONS. 

THE ONLY TIME THIS COURT HAS EVER FACED THE QUESTION OF WHAT RELIEF,
IF ANY, THE ANTITRUST LAWS OFFER A STATE SUING AS PARENS PATRIAE WAS IN
GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439 (1945), THE CASE RELIED ON
MOST HEAVILY BY THE PARTIES HEREIN.  IN THAT CASE, GEORGIA SOUGHT TO
INVOKE THE ORIGINAL JURISDICTION OF THIS COURT BY FILING AN AMENDED
BILL OF COMPLAINT AGAINST 20 RAILROADS, ALLEGING, IN ESSENCE, THAT THE
RAILROADS HAD CONSPIRED TO RESTRAIN TRADE AND TO FIX PRICES IN A MANNER
THAT WOULD FAVOR SHIPPERS IN OTHER STATES (PARTICULARLY NORTHERN
STATES) TO THE DETRIMENT OF GEORGIA SHIPPERS. 

LIKE THIS SUIT, GEORGIA AROSE UNDER THE FEDERAL ANTITRUST LAWS.  IT
IS PLAIN FROM THE FACE OF THE COMPLAINT THAT "(THE PRAYER (WAS) FOR
DAMAGES AND FOR INJUNCTIVE RELIEF."  324 U.S.,AT 445.  SEE ID., AT 446,
447, 450-451.  /13/  GEORGIA CLAIMED THAT THE CONSPIRACY HAD SEVERELY
DAMAGED ITS ECONOMY AND SOUGHT TO RECOVER DAMAGES ON BEHALF OF ITS
CITIZENS. 

THE COURT UPHELD GEORGIA'S CLAIM AS PARENS PATRIAE WITH RESPECT TO
INJUNCTIVE RELIEF, BUT HAD NO OCCASION TO CONSIDER WHETHER THE
ANTITRUST LAWS ALSO AUTHORIZED DAMAGES FOR AN INJURY TO THE STATE'S
ECONOMY, SINCE APPROVAL OF THE CHALLENGED RATES BY THE INTERSTATE
COMMERCE COMMISSION BARRED A DAMAGE RECOVERY ON THE GROUND THAT SUCH A
REMEDY WOULD HAVE GIVEN GEORGIA SHIPPERS AN UNFAIR ADVANTAGE OVER
SHIPPERS FROM OTHER STATES.  SEE KEOGH V. CHICAGO & NORTHWESTERN R.
CO., 260 U.S. 156 (1922).  NOWHERE IN GEORGIA DID THE COURT ADDRESS
ITSELF TO THE QUESTION WHETHER SEC. 4 OF THE CLAYTON ACT AUTHORIZES
DAMAGES FOR AN INJURY TO THE GENERAL ECONOMY OF A STATE.  THUS, THE
QUESTION PRESENTED HERE IS OPEN. 

        III.  HAWAII AND THE ANTITRUST LAWS 

HAWAII GROUNDS ITS CLAIM FOR TREBLE DAMAGES IN SEC. 4 OF THE CLAYTON
ACT, 15 U.S.C. 15, WHICH READS: 

     "ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY
BY

  REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE

  THEREFOR IN ANY DISTRICT COURT OF THE UNITED STATES IN THE

  DISTRICT IN WHICH THE DEFENDANT RESIDES OR IS FOUND OR HAS AN

  AGENT, WITHOUT RESPECT TO THE AMOUNT IN CONTROVERSY, AND SHALL

  RECOVER THREEFOLD THE DAMAGES BY HIM SUSTAINED, AND THE COST OF

  SUIT, INCLUDING A REASONABLE ATTORNEY'S FEE." 

THIS SECTION IS NOTABLY DIFFERENT FROM SEC. 16 OF THE CLAYTON ACT, 15
U.S.C. 26, WHICH PROVIDES FOR INJUNCTIVE RELIEF: 

     "ANY PERSON, FIRM, CORPORATION, OR ASSOCIATION SHALL BE

  ENTITLED TO USE FOR AND HAVE INJUNCTIVE RELIEF, IN ANY COURT OF

  THE UNITED STATES HAVING JURISDICTION OVER THE PARTIES, AGAINST

  THREATENED LOSS OR DAMAGE BY A VIOLATION OF THE ANTITRUST LAWS .

  . . WHEN AND UNDER THE SAME CONDITIONS AND PRINCIPLES AS

  INJUNCTIVE RELIEF AGAINST THREATENED CONDUCT THAT WILL CAUSE LOSS

  OR DAMAGE IS GRANTED BY COURTS OF EQUITY, UNDER THE RULES

  GOVERNING SUCH PROCEEDINGS . . .; " 

HAWAII PLAINLY QUALIFIES AS A PERSON UNDER BOTH SECTIONS OF THE
STATUTE, WHETHER IT SUES IN ITS PROPRIETARY CAPACITY OR AS PARENS
PATRIAE.  GEORGIA V. PENNSYLVANIA R. CO., 324 U.S.,AT 447.  BUT THE
CRITICAL QUESTION IS WHETHER THE INJURY ASSERTED BY HAWAII IN ITS
PARENS PATRIAE COUNT IS AN INJURY TO ITS "BUSINESS OR PROPERTY." 
THE LEGISLATIVE HISTORY OF THE SHERMAN AND CLAYTON ACTS IS NOT VERY
INSTRUCTIVE AS TO WHY CONGRESS INCLUDED THE "BUSINESS OR PROPERTY"
REQUIREMENT IN SEC. 4, BUT NOT IN SEC. 16.  THE MOST LIKELY EXPLANATION
LIES IN THE ESSENTIAL DIFFERENCES BETWEEN THE TWO REMEDIES. 

WHILE THE UNITED STATES GOVERNMENT, THE GOVERNMENTS OF EACH STATE,
AND ANY INDIVIDUAL THREATENED WITH INJURY BY AN ANTITRUST VIOLATION MAY
ALL SUE FOR INJUNCTIVE RELIEF AGAINST VIOLATIONS OF THE ANTITRUST LAWS,
AND WHILE THEY MAY THEORETICALLY DO SO SIMULTANEOUSLY AGAINST THE SAME
PERSONS FOR THE SAME VIOLATIONS, THE FACT IS THAT ONE INJUNCTION IS AS
EFFECTIVE AS 100, AND, CONCOMITANTLY, THAT 100 INJUNCTIONS ARE NO MORE
EFFECTIVE THAN ONE.  THIS CASE ILLUSTRATES THE POINT WELL.  THE PARTIES
ARE IN VIRTUAL AGREEMENT THAT WHETHER OR NOT HAWAII CAN SUE FOR
INJUNCTIVE RELIEF AS PARES PATRIAE IS OF LITTLE CONSEQUENCE SO LONG AS
IT CAN SEEK THE SAME RELIEF IN ITS PROPRIETARY CAPACITY.  WHILE SOME
THEORETICAL DIFFERENCES MAY EXIST WITH RESPECT TO THE PARTIES CAPABLE
OF ENFORCING A PARES PATRIAE INJUNCTION AS OPPOSED TO ONE SECURED BY A
STATE IN ITS PROPRIETARY CAPACITY, THESE DIFFERENCES ARE NOT CRUCIAL TO
THE DEFENDANT IN AN ANTITRUST CASE. 

THE POSITION OF A DEFENDANT FACED WITH NUMEROUS CLAIMS FOR DAMAGES
IS MUCH DIFFERENT.  IF THE DEFENDANT IS SUED BY 100 DIFFERENT PERSONS
OR BY ONE PERSON WITH 100 SEPARATE BUT CUMULATIVE CLAIMS, AND EACH
CLAIM IS FOR DAMAGES, THE POTENTIAL LIABILITY IS OBVIOUSLY FAR GREATER
THAN IF ONLY ONE OF THOSE PERSONS SUED ON ONLY ONE CLAIM.  THUS, THERE
IS A STRIKING CONTRAST BETWEEN THE POTENTIAL IMPACT OF SUITS FOR
INJUNCTIVE RELIEF AND SUITS FOR DAMAGES. 

EVERY VIOLATION OF THE ANTITRUST LAWS IS A BLOW TO THE FREE
ENTERPRISE SYSTEM ENVISAGED BY CONGRESS.  SEE NORTHERN PACIFIC R. CO.
V. UNITED STATES, 356 U.S. 1, 4 (1958).  THIS SYSTEM DEPENDS ON STRONG
COMPETITION FOR ITS HEALTH AND VIGOR, AND STRONG COMPETITION DEPENDS,
IN TURN, ON COMPLIANCE WITH ANTITRUST LEGISLATION.  IN ENACTING THESE
LAWS, CONGRESS HAD MANY MEANS AT ITS DISPOSAL TO PENALIZE VIOLATORS. 
IT COULD HAVE, FOR EXAMPLE, REQUIRED VIOLATORS TO COMPENSATE FEDERAL,
STATE, AND LOCAL GOVERNMENTS FOR THE ESTIMATED DAMAGE TO THEIR
RESPECTIVE ECONOMIES CAUSED BY THE VIOLATIONS.  BUT, THIS REMEDY WAS
NOT SELECTED.  INSTEAD, CONGRESS CHOSE TO PERMIT ALL PERSONS TO SUE TO
RECOVER THREE TIMES THEIR ACTUAL DAMAGES EVERY TIME THEY WERE INJURED
IN THEIR BUSINESS OR PROPERTY BY AN ANTITRUST VIOLATION.  BY OFFERING
POTENTIAL LITIGANTS THE PROSPECT OF A RECOVERY IN THREE TIMES THE
AMOUNT OF THEIR DAMAGES, CONGRESS ENCOURAGED THESE PERSONS TO SERVE AS
"PRIVATE ATTORNEYS GENERAL."  SEE, E.G., ZENITH RADIO CORP. V.
HAZELTINE RESEARCH, INC., 395 U.S. 100, 130-131 (1969); PERMA LIFE
MUFFLERS, INC. V. INTERNATIONAL PARTS CORP., 392 U.S. 134, 147 (1968)
(FORTAS, J., CONCURRING IN RESULT). 

THUS, SEC. 4 PERMITS HAWAII TO SUE IN ITS PROPRIETARY CAPACITY FOR
THREE TIMES THE DAMAGES IT HAS SUFFERED FROM RESPONDENTS' ALLEGED
ANTITRUST VIOLATIONS.  /14/  THE SECTION GIVES THE SAME RIGHT TO EVERY
CITIZEN OF HAWAII WITH RESPECT TO ANY DAMAGE TO BUSINESS OR PROPERTY. 
WERE WE, IN ADDITION, TO HOLD THAT CONGRESS AUTHORIZED THE STATE TO
RECOVER DAMAGES FOR INJURY TO ITS GENERAL ECONOMY, WE WOULD OPEN THE
DOOR TO DUPLICATIVE RECOVERIES. 

A LARGE AND ULTIMATELY INDETERMINABLE PART OF THE INJURY TO THE
"GENERAL ECONOMY," AS IT IS MEASURED BY ECONOMISTS, IS NO MORE THAN A
REFLECTION OF INJURIES TO THE "BUSINESS OR PROPERTY" OF CONSUMERS, FOR
WHICH THEY MAY RECOVER THEMSELVES UNDER SEC. 4.  EVEN THE MOST LENGTHY
AND EXPENSIVE TRIAL COULD NOT, IN THE FINAL ANALYSIS, COPE WITH THE
PROBLEMS OF DOUBLE RECOVERY INHERENT IN ALLOWING DAMAGES FOR HARM BOTH
TO THE ECONOMIC INTERESTS OF INDIVIDUALS AND FOR THE QUASI-SOVEREIGN
INTERESTS OF THE STATE.  AT THE VERY LEAST, IF THE LATTER TYPE OF
INJURY IS TO BE COMPENSABLE UNDER THE ANTITRUST LAWS, WE SHOULD INSIST
UPON A CLEAR EXPRESSION OF A CONGRESSIONAL PURPOSE TO MAKE IT SO, AND
NO SUCH EXPRESSION IS TO BE FOUND IN SEC. 4 OF THE CLAYTON ACT. 

LIKE THE LOWER COURTS THAT HAVE CONSIDERED THE MEANING OF THE WORDS
"BUSINESS OR PROPERTY," WE CONCLUDE THAT THEY REFER TO COMMERCIAL
INTERESTS OR ENTERPRISES.  SEE, E.G., ROSELAND V. PHISTER MFG. CO., 125
F.2D 417 (CA7 1942); HAMMAN V. UNITED STATES, 267 F.SUPP.  420 (MONT.
1967), APPEAL DISMISSED, 399 F.2D 673 (CA9 1968); BROADCASTERS, INC. V.
MORRISTOWN BROADCASTING CORP., 185 F.SUPP.  641 (NJ 1960).  WHEN THE
STATE SEEKS DAMAGES FOR INJURIES TO ITS COMMERCIAL INTERESTS, IT MAY
SUE UNDER SEC. 4.  BUT WHERE, AS HERE, THE STATE SEEKS DAMAGES FOR
OTHER INJURIES, IT IS NOT PROPERLY WITHIN THE CLAYTON ACT. 

SUPPORT FOR THIS READING OF SEC. 4 IS FOUND IN THE LEGISLATIVE
HISTORY OF 15 U.S.C. 15A, /15/  WHICH IS THE ONLY PROVISION AUTHORIZING
RECOVERY IN DAMAGES BY THE UNITED STATES, AND WHICH LIMITS THAT
RECOVERY TO DAMAGES TO "BUSINESS OR PROPERTY."  THE LEGISLATIVE HISTORY
OF THAT PROVISION MAKES IT QUITE PLAIN THAT THE UNITED STATES WAS
AUTHORIZED TO RECOVER, NOT FOR GENERAL INJURY TO THE NATIONAL ECONOMY
OR TO THE GOVERNMENT'S ABILITY TO CARRY OUT ITS FUNCTIONS, BUT ONLY FOR
THOSE INJURIES SUFFERED IN ITS CAPACITY AS A CONSUMER OF GOODS AND
SERVICES. 

"THE UNITED STATES IS, OF COURSE, AMPLY EQUIPPED WITH THE CRIMINAL
AND CIVIL PROCESS WITH WHICH TO ENFORCE THE ANTITRUST LAWS.  THE
PROPOSED LEGISLATION, QUITE PROPERLY, TREATS THE UNITED STATES SOLELY
AS A BUYER OF GOODS AND PERMITS THE RECOVERY OF THE ACTUAL DAMAGES
SUFFERED."  S. REP. NO. 619, 84TH CONG., 1ST SESS., 3 (1955).  SEE ALSO
H.R. REP. NO. 422, 84TH CONG., 1ST SESS., 2-5 (1955).  IN LIGHT OF THE
LANGUAGE USED AS WELL AS THE LEGISLATIVE HISTORY OF 15 U.S.C. 15A, IT
IS MANIFEST THAT THE UNITED STATES CANNOT RECOVER FOR ECONOMIC INJURIES
TO ITS SOVEREIGN INTERESTS, AS OPPOSED TO ITS PROPRIETARY FUNCTIONS. 
AND THE CONCLUSION IS NEARLY INESCAPABLE THAT SEC. 4, WHICH USES
IDENTICAL LANGUAGE, DOES NOT AUTHORIZE RECOVERY FOR ECONOMIC INJURIES
TO THE SOVEREIGN INTERESTS OF A STATE. 

WE NOTE IN PASSING THE STATE'S CLAIM THAT THE COSTS AND OTHER
BURDENS OF PROTRACTED LITIGATION RENDER PRIVATE CITIZENS IMPOTENT TO
BRING TREBLE-DAMAGE ACTIONS, AND THUS THAT DENYING HAWAII THE RIGHT TO
SUE FOR INJURY TO HER QUASI-SOVEREIGN INTERESTS WILL ALLOW ANTITRUST
VIOLATIONS TO GO VIRTUALLY UNREMEDIED.  PRIVATE CITIZENS ARE NOT AS
POWERLESS, HOWEVER, AS THE STATE SUGGESTS. 

CONGRESS HAS GIVEN PRIVATE CITIZENS RIGHTS OF ACTION FOR INJUNCTIVE
RELIEF AND DAMAGES FOR ANTITRUST VIOLATIONS WITHOUT REGARD TO THE
AMOUNT IN CONTROVERSY.  28 U.S.C. 1337; 15 U.S.C. 15.  RULE 23 OF THE
FEDERAL RULES OF CIVIL PROCEDURE PROVIDES FOR CLASS ACTIONS THAT MAY
ENHANCE THE EFFICACY OF PRIVATE ACTIONS BY PERMITTING CITIZENS TO
COMBINE THEIR LIMITED RESOURCES TO ACHIEVE A MORE POWERFUL LITIGATION
POSTURE.  THE DISTRICT COURT DISMISSED HAWAII'S CLASS ACTION ONLY
BECAUSE IT WAS UNWIELDY; IT DID NOT HOLD THAT A STATE COULD NEVER BRING
A CLASS ACTION ON BEHALF OF SOME OR ALL OF ITS CONSUMER CITIZENS. 
RESPONDENTS, IN MOVING TO DISMISS COUNT THREE OF THE FOURTH AMENDED
COMPLAINT, IN WHICH THE STATE SOUGHT TO BRING SUCH AN ACTION, VIRTUALLY
CONCEDED THAT CLASS ACTIONS MIGHT BE APPROPRIATE UNDER CERTAIN
CIRCUMSTANCES.  THE FACT THAT A SUCCESSFUL ANTITRUST SUIT FOR DAMAGES
RECOVERS NOT ONLY THE COSTS OF THE LITIGATION, BUT ALSO ATTORNEY'S
FEES, SHOULD PROVIDE NO SCARCITY OF MEMBERS OF THE BAR TO AID
PROSPECTIVE PLAINTIFFS IN BRINGING THESE SUITS. 

PARENS PATRIAE ACTIONS MAY, IN THEORY, BE RELATED TO CLASS ACTIONS,
BUT THE LATTER ARE DEFINITELY PREFERABLE IN THE ANTITRUST AREA.  RULE
23 PROVIDES SPECIFIC RULES FOR DELINEATING THE APPROPRIATE PLAINTIFF
CLASS, ESTABLISHES WHO IS BOUND BY THE ACTION, AND EFFECTIVELY PREVENTS
DUPLICATIVE RECOVERIES. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED FOR THE REASONS
STATED ABOVE. 

 SO ORDERED. 

/1/  CHEVRON ASPHALT CO. WAS NOT NAMED AS A DEFENDANT IN THE INITIAL
COMPLAINT.  AS POINTED OUT IN THE TEXT, INFRA, THE COMPANY WAS NAMED AS
A DEFENDANT IN THE THIRD AND FOURTH AMENDED COMPLAINTS WHICH RAISE THE
QUESTION PRESENTED TO THE COURT. 

/2/  IN THE THIRD AMENDED COMPLAINT, THE STATE ABANDONED A CLAIM
MADE IN THE INITIAL COMPLAINT THAT THE ROBINSON-PATMAN ACT, 49 STAT.
1526, 15 U.S.C. 13(A), HAD BEEN VIOLATED.  THIS CLAIM HAS NOT BEEN
RESURRECTED IN ANY OF THE LATER STAGES OF THE PROCEEDINGS. 

/3/  THE OPINION OF THE COURT IS UNREPORTED, BUT IS CONTAINED IN
APP. 51-58. 

/4/  ID., AT 58 

/5/  REPORTER'S TR. 154 (MAY 29, 1969). 

/6/  THE DISTRICT COURT OFFERED TO CERTIFY ITS DISMISSAL OF HAWAII'S
CLASS-ACTION COUNT, BUT HAWAII INDICATED ITS INTENTION NOT TO APPEAL
THE RULING.  SINCE THE RULING WAS NOT APPEALED IT IS NOT BEFORE THE
COURT FOR REVIEW. 

/7/  ALTHOUGH THE COURT OF APPEALS DIRECTED THAT THE COUNT BE
DISMISSED IN ITS ENTIRETY, THE PARTIES HAVE NOT SUGGESTED THAT ITS
DECISION FORECLOSED ANY RELIEF THE STATE MIGHT OBTAIN BY WAY OF
INJUNCTION. 

/8/  MALINA & BLECHMAN, AT 197; STATE PROTECTION, AT 412. 

/9/  STATE PROTECTION, AT 412. 

/10/  3 W.BLACKSTONE, COMMENTARIES *47. 

/11/  IBID. 

/12/  ARTICLE III, SEC. 2, OF THE CONSTITUTION CONFERS ORIGINAL
JURISDICTION UPON THIS COURT OVER SUITS BETWEEN STATES OR BY ONE STATE
AGAINST A CITIZEN OF ANOTHER STATE.  IN ORDER TO PROPERLY INVOKE THIS
JURISDICTION, THE STATE MUST BRING AN ACTION ON ITS OWN BEHALF AND NOT
ON BEHALF OF PARTICULAR CITIZENS.  SEE, E.G., LOUISIANA V. TEXAS, 176
U.S. 1 (1900); NEW HAMPSHIRE V. LOUISIANA, 108 U.S. 76 (1883); OKLAHOMA
V. ATCHISON, T. & S.F.R. CO., 220 U.S. 277 (1911).  AN ACTION BROUGHT
BY ONE STATE AGAINST ANOTHER VIOLATES THE ELEVENTH AMENDMENT IF THE
PLAINTIFF STATE IS ACTUALLY SUING TO RECOVER FOR INJURIES TO DESIGNATED
INDIVIDUALS.  SEE, E.G., NEW HAMPSHIRE V. LOUISIANA, SUPRA; NORTH
DAKOTA V. MINNESOTA, 263 U.S. 365, 376 (1923). 

/13/  IT IS EVIDENT FROM THE BILL OF COMPLAINT THAT GEORGIA SOUGHT
TO SUE IN FOUR SLIGHTLY DIFFERENT CAPACITIES:  ITS SOVEREIGN CAPACITY
(FIRST COUNT); AS A QUASI-SOVEREIGN (SECOND COUNT); ITS PROPRIETARY
CAPACITY (THIRD COUNT); AND AS PROTECTOR OF A GENERAL CLASS OF ITS
CITIZENS (FOURTH COUNT).  DAMAGES WERE SOUGHT IN EACH COUNT, ALTHOUGH
TREBLE DAMAGES WERE SOUGHT ONLY ON THE LAST COUNT. 

/14/  IT IS TRUE, AS MR. JUSTICE BRENNAN SUGGESTS, THAT AN INJURY TO
THE STATE IN ITS PROPRIETARY CAPACITY, AS ALLEGED IN COUNT ONE OF THE
COMPLAINT, AFFECTS THE CITIZENS IN MUCH THE SAME WAY AS AN INJURY OF
THE SORT CLAIMED BY HAWAII HERE.  EACH HAS THE EFFECT OF INCREASING
TAXES, OR REDUCING GOVERNMENT SERVICES, OR BOTH.  BUT THIS DOES NOT
MEAN THAT THE TWO KINDS OF INJURIES ARE IDENTICAL IN NATURE.  WHERE THE
INJURY TO THE STATE OCCURS IN ITS CAPACITY AS A CONSUMER IN THE
MARKETPLACE, THROUGH A "PAYMENT OF MONEY WRONGFULLY INDUCED,"
CHATTANOOGA FOUNDRY & PIPE WORKS V. CITY OF ATLANTA, 203 U.S. 390, 396
(1906), DAMAGES ARE ESTABLISHED BY THE AMOUNT OF THE OVERCHARGE.  UNDER
SEC. 4, COURTS WILL NOT GO BEYOND THE FACT OF THIS INJURY TO DETERMINE
WHETHER THE VICTIM OF THE OVERCHARGE HAS PARTIALLY RECOUPED ITS LOSS IN
SOME OTHER WAY, EVEN THOUGH A STATE, FOR EXAMPLE, MAY ULTIMATELY RECOUP
SOME PART OF THE OVERCHARGE THROUGH INCREASED TAXES PAID BY THE
SELLER.  SEE HANOVER SHOE, INC. V. UNITED SHOE MACHINERY CORP., 392
U.S. 481, 489 (1968).  MEASUREMENT OF AN INJURY TO THE GENERAL ECONOMY,
ON THE OTHER HAND, NECESSARILY INVOLVES AN EXAMINATION OF THE IMPACT OF
A RESTRAINT OF TRADE UPON EVERY VARIABLE THAT AFFECTS THE STATE'S
ECONOMIC HEALTH-- A TASK EXTREMELY DIFFICULT, "IN THE REAL ECONOMIC
WORLD RATHER THAN AN ECONOMIST'S HYPOTHETICAL MODEL."  ID., AT 493. 

THE LOWER COURTS HAVE BEEN VIRTUALLY UNANIMOUS IN CONCLUDING THAT
CONGRESS DID NOT INTEND THE ANTITRUST LAWS TO PROVIDE A REMEDY IN
DAMAGES FOR ALL INJURIES THAT MIGHT CONCEIVABLY BE TRACED TO AN
ANTITRUST VIOLATION.  SEE, E.G., MILEY V. JOHN HANCOCK MUTUAL LIFE
INSURANCE CO., 148 F.SUPP.  299, 303 (MASS.), AFF'D, 242 F.2D 758
(CA1), CERT. DENIED, 355 U.S. 828 (1957); BILLY BAXTER, INC. V. COCA
COLA CO., 431 F.2D 183 (CA2 1970), CERT DENIED, 401 U.S. 923 (1971);
KAUFFMAN V. DREYFUS FUND, INC., 434 F.2D 727, 732-734 (CA3 1970), CERT.
DENIED, 401 U.S. 974 (1971); SOUTH CAROLINA COUNCIL V. NEWTON, 360 F.2D
414, 419 (CA4), CERT. DENIED, 385 U.S. 934 (1966); DAILEY V. QUALITY
SCHOOL PLAN, INC., 380 F.2D 484 (CA5 1967); VOLASCO PRODUCTS CO. V.
LLOYD A. FRY ROOFING CO., 308 F.2D 383, 395 (CA6 1962), CERT. DENIED,
372 U.S. 907 (1963); COMMONWEALTH EDISON CO. V. ALLIS-CHALMERS MFG.
CO., 315 F.2D 564, 566-567 (CA7), CERT. DENIED SUB NOM. ILLINOIS V.
COMMONWEALTH EDISON CO., 375 U.S. 834 (1963); SANITARY MILK PRODUCERS
V. BERGJANS FARM DAIRY, INC., 368 F.2D 679, 688-689 (CA8 1966); HOOPES
V. UNION OIL CO., 374 F.2D 480, 485 (CA9 1967); NATIONWIDE AUTO APP.
SERV. V. ASSOCIATION OF C. & S. CO., 382 F.2D 925, 928-929 (CA10
1967). 

/15/  "WHENEVER THE UNITED STATES IS HEREAFTER INJURED IN ITS
BUSINESS OR PROPERTY BY REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST
LAWS IT MAY SUE THEREFOR . . . , AND SHALL RECOVER ACTUAL DAMAGES BY IT
SUSTAINED AND THE COST OF SUIT."  69 STAT. 282, 15 U.S.C. 15A. 

THIS SECTION WAS ENACTED IN 1955 FOLLOWING THE DECISION IN UNITED
STATES V. COOPER CORP., 312 U.S. 600 (1941), WHICH HELD THAT THE UNITED
STATES WAS NOT A "PERSON" WITHIN THE MEANING OF SEC. 7 OF THE SHERMAN
ACT (THE PREDECESSOR OF SEC. 4 OF THE CLAYTON ACT).  RECOVERY IS
LIMITED TO ACTUAL RATHER THAN TREBLE DAMAGES BECAUSE CONGRESS REASONED
THAT THE UNITED STATES, UNLIKE A PRIVATE PARTY, NEEDED NO EXTRAORDINARY
INCENTIVE TO BRING ANTITRUST SUITS.  H.R. REP. NO. 422, 84TH CONG., 1ST
SESS., 3 (1955).     MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

TODAY'S DECISION REFLECTS A MISERLY APPROACH TO THE FASHIONING OF
FEDERAL REMEDIES RECTIFYING INJURIES TO THE COLLECTIVE INTERESTS OF THE
CITIZENS OF A STATE THROUGH ACTION BY THE STATE ITSELF.  IT IS
REMINISCENT OF THE ILL-STARRED DECISION IN OHIO V. WYANDOTTE CHEMICALS
CORP., 401 U.S. 493.  /1/     HAWAII, IN HER FOURTH AMENDED COMPLAINT,
SUES FOR DAMAGES AND INJUNCTIVE RELIEF AS PARENS PATRIAE BY VIRTUE OF
HER "DUTY TO PROTECT THE GENERAL WELFARE OF THE STATE AND ITS
CITIZENS."  SHE ALLEGES THAT THE ALLEGED CONSPIRACY AMONG THE
RESPONDENT OIL COMPANIES HAS "INJURED AND ADVERSELY AFFECTED THE
ECONOMY AND PROSPERITY" OF HAWAII AS FOLLOWS: 

     "(A) REVENUES OF ITS CITIZENS HAVE BEEN WRONGFULLY EXTRACTED
FROM THE STATE OF HAWAII; 

     "(B) TAXES AFFECTING THE CITIZENS AND COMMERCIAL ENTITIES HAVE

  BEEN INCREASED TO AFFECT SUCH LOSSES OF REVENUES AND INCOME; 

     "(C) OPPORTUNITY IN MANUFACTURING, SHIPPING AND COMMERCE HAVE

  BEEN RESTRICTED AND CURTAILED; 

     "(D) THE FULL AND COMPLETE UTILIZATION OF THE NATURAL WEALTH
OF

  THE STATE HAS BEEN PREVENTED; 

     "(E) THE HIGH COST OF MANUFACTURE IN HAWAII HAS PRECLUDED
GOODS

  MADE THERE FROM EQUAL COMPETITIVE ACCESS WITH THOSE OF OTHER

  STATES TO THE NATIONAL MARKET; 

  "(F) MEASURES TAKEN BY THE STATE TO PROMOTE THE GENERAL

  PROGRESS AND WELFARE OF ITS PEOPLE HAVE BEEN FRUSTRATED; 

     "(G) THE HAWAII ECONOMY HAS BEEN HELD IN A STATE OF ARRESTED
DEVELOPMENT." 

I SEE NO WAY OF DISTINGUISHING THE INSTANT CASE FROM GEORGIA V.
PENNSYLVANIA R. CO., 324 U.S. 439.  THE GEORGIA CASE HELD THAT A STATE
MAY SUE AS PARENS PATRIAE UNDER THE ANTITRUST LAWS FOR INJURY TO THE
ECONOMY OF THE STATE RESULTING FROM A CONSPIRACY TO RESTRAIN TRADE AND
COMMERCE THROUGH THE FIXING OR RAILROAD RATES.  ID., AT 446.  AS WE
SAID: 

"GEORGIA AS A REPRESENTATIVE OF THE PUBLIC IS COMPLAINING OF A WRONG
WHICH, IF PROVEN, LIMITS THE OPPORTUNITIES OF HER PEOPLE, SHACKLES HER
INDUSTRIES, RETARDS HER DEVELOPMENT, AND RELEGATES HER TO AN INFERIOR
ECONOMIC POSITION AMONG HER SISTER STATES.  THESE ARE MATTERS OF GRAVE
PUBLIC CONCERN IN WHICH GEORGIA HAS AN INTEREST APART FROM THAT OF
PARTICULAR INDIVIDUALS WHO MAY BE AFFECTED."  ID., AT 451. 

SO-CALLED "GROWTH," "PROGRESS," AND "DEVELOPMENT" ARE MORE THAN
SYMBOLS OF POWER IN MODERN SOCIETY; THEY REPRESENT THE GOAL WHICH
PLANNERS-- PRIVATE AND PUBLIC ALIKE-- ESTABLISH AND SEEK TO ATTAIN. 
AND THE STATE PLAYS AN IMPORTANT, AT TIMES CRUCIAL, ROLE IN ACHIEVING
THAT GOAL.  /2/  IF HAWAII CAN SUSTAIN HER ALLEGATIONS BY PROOF, SHE
ESTABLISHES INJURY BOTH AS RESPECTS HER TOURISM AND HER INDUSTRY, HER
"GROWTH" AND HER "DEVELOPMENT." 

THE COURT OF APPEALS WAS "SKEPTICAL OF THE EXISTENCE OF AN
INDEPENDENT HARM TO THE GENERAL ECONOMY."  431 F.2D 1282, 1285.  BUT AS
ALABAMA STATES IN HER BRIEF AMICUS: 

"ECONOMISTS HAVE DEVELOPED MODELS FOR MEASURING THE EFFECTS UPON
LOCAL ECONOMIES FROM INFUSIONS OR EXTRACTIONS OF GIVEN SUMS OF MONEY
FROM THOSE ECONOMIES.  IN SHORT, A STATE'S ECONOMY IS SUSCEPTIBLE OF
ARTICULATION AND MEASUREMENT." 

HAWAII IS THE MAGNET OF TOURISM AND OF INDUSTRY AS WELL.  SHE
MEASURES THE HEALTH OF HER ECONOMY BY HER ECONOMIC GROWTH.  NO ONE
CITIZEN CAN STAND IN HER SHOES IN THOSE RESPECTS, FOR SHE REPRESENTS
THE COLLECTIVE.  THOSE INTERESTS SHOULD BE HELD TO BE THE STATE'S
"BUSINESS OR PROPERTY" INTERESTS, WITHIN THE MEANING OF THE CLAYTON
ACT, AND NOT MERELY THE PLANTS, FACTORIES, OR HOTELS WHICH SHE MAY OWN
AS A PROPRIETOR.  WE HELD AS MUCH IN THE GEORGIA CASE.  IT IS
INDISPUTABLE THAT IF HAWAII DOES PROVE DAMAGES, GEORGIA AUTHORIZES
RECOVERY.  FOR AS MR. JUSTICE BRENNAN POINTS OUT, GEORGIA WAS DENIED
DAMAGES ONLY BECAUSE OF A TECHNICALITY IRRELEVANT TO THE PRESENT CASE. 

INJURY TO THE COLLECTIVE WILL COMMONLY INCLUDE INJURY TO MEMBERS OF
THE COLLECTIVE.  IN THAT EVENT DAMAGES RECOVERED BY HAWAII COULD NOT
LATER BE RECOVERED BY INDIVIDUAL ENTREPRENEURS.  IT MIGHT, OF COURSE,
BE SHOWN THAT THE INDIVIDUAL'S LOSS FOR THE PERIOD IN QUESTION WAS
DISTINCT FROM ANY IMPACT ON THE COLLECTIVE.  THUS, IF HAWAII FAILED TO
PROVE THAT THE ALLEGED CONSPIRACY DAMAGED HER ECONOMY, A SINGLE
ENTREPRENEUR MIGHT STILL BE ABLE TO PROVE THAT IT DROVE HIM TO THE
WALL.  THE DIFFICULTIES ADVANCED IN THIS REGARD ARE MORE IMAGINARY THAN
REAL.  THEY ARE DOUBTLESS RATIONALES THAT EXPRESS A PREJUDICE AGAINST
LIBERAL CONSTRUCTION OF THE ANTITRUST LAWS.  SINCE A COLLECTIVE DAMAGE
IS ALLEGED, I WOULD ALLOW THE CASE TO GO TO TRIAL, SAVING TO CONGRESS
THE QUESTION WHETHER SEC. 4 OF THE CLAYTON ACT SHOULD BE RESTRICTED TO
A STATE'S PROPRIETARY INTEREST. 

I WOULD ADHERE TO THE GEORGIA CASE AND ALLOW HAWAII A CHANCE TO
PROVE HER CHARGES AND TO ESTABLISH THE ACTUALITY OF DAMAGES OR THE NEED
FOR EQUITABLE RELIEF.  /3/ 

I WOULD REVERSE THE JUDGMENT AND REMAND THE CASE FOR TRIAL.  /4/ 

/1/  IN WYANDOTTE, THE COURT REFUSED TO EXERCISE ITS CONCEDED
ORIGINAL JURISDICTION OVER AN ORIGINAL COMPLAINT FILED BY THE STATE OF
OHIO TO ENJOIN ALLEGED POLLUTION OF LAKE ERIE BY MANUFACTURING PLANTS
IN MICHIGAN AND ONTARIO, CANADA, BECAUSE "AS A PRACTICAL MATTER, IT
WOULD BE INAPPROPRIATE FOR THIS COURT TO ATTEMPT TO ADJUDICATE THE
ISSUES . . . . "  401 U.S.,AT 501.  IN THE LIGHT OF OUR RULES
PERMITTING THE APPOINTMENT OF SPECIAL MASTERS, HOWEVER, THIS RATIONALE
IS QUESTIONABLE AT BEST.  ID., AT 510-512 (DOUGLAS, J., DISSENTING). 
SEE GENERALLY WOODS & REED, THE SUPREME COURT AND INTERSTATE
ENVIRONMENTAL QUALITY:  SOME NOTES ON THE WYANDOTTE CASE, 12
ARIZ.L.REV.  691 (1970). 

/2/  "IN THESE THREE RESPECTS-- AS A CLEARING HOUSE FOR NECESSARY
INSTITUTIONAL INNOVATIONS; AS AN AGENCY FOR RESOLUTION OF CONFLICTS
AMONG GROUP INTERESTS; AND AS A MAJOR ENTREPRENEUR FOR THE SOCIALLY
REQUIRED INFRASTRUCTURE-- THE SOVEREIGN STATE ASSUMES KEY IMPORTANCE IN
CHANNELING THE EXPLOSIVE IMPACTS OF CONTINUOUS STRUCTURAL CHANGES, IN
PROVIDING A PROPER FRAMEWORK IN WHICH THESE STRUCTURAL CHANGES,
PROCEEDING AT REVOLUTIONARY SPEED, ARE CONTAINED AND PREVENTED FROM
EXPLODING INTO A CIVIL WAR (AS THEY SOMETIMES MAY, AND HAVE).  THUS,
THE HIGH RATE OF CHANGE IN ECONOMIC STRUCTURE IS LINKED TO THE
IMPORTANCE OF THE SOVEREIGN STATE AS AN ORGANIZING UNIT.  IT IS NOT
ACCIDENTAL THAT, IN MEASURING AND ANALYZING ECONOMIC GROWTH, WE TALK OF
THE ECONOMIC GROWTH OF NATIONS AND USE NATIONAL ECONOMIC ACCOUNTS.  IN
DOING SO, WE IMPLY THAT THE SOVEREIGN STATE IS AN IMPORTANT FACTOR IN
MODERN ECONOMIC GROWTH; THAT, GIVEN THE TRANSNATIONAL, WORLDWIDE
CHARACTER OF THE SUPPLY OF USEFUL KNOWLEDGE AND SCIENCE, THE MAJOR
PERMISSIVE FACTOR OF MODERN ECONOMIC GROWTH, THE STATE UNIT, IN
ADJUSTING ECONOMIC AND SOCIAL INSTITUTIONS TO FACILITATE AND MAXIMISE
APPLICATION, PLAYS A CRUCIAL SUPPLEMENTARY ROLE."  S. KUZNETS, ECONOMIC
GROWTH OF NATIONS 346-347 (1971) 

/3/  THE QUESTION OF INJUNCTIVE RELIEF CONCERNS THE MEANING OF SEC.
16 OF CLAYTON ACT WHICH GRANTS RELIEF TO ANY "PERSON" AGAINST LOSS OR
DAMAGE BY A VIOLATION OF "THE ANTITRUST" LAWS.  IT IS SETTLED THAT A
STATE IS A "PERSON" WITHIN THE MEANING OF SEC. 16.  GEORGIA V.
PENNSYLVANIA R. CO., 324 U.S. 439, 452.  HENCE, IT IS CLEAR THAT EVEN
IF HAWAII DOES NOT PROVE DAMAGES, EQUITABLE RELIEF IS AVAILABLE AS IT
WAS IN THE GEORGIA CASE. 

/4/  MY QUARREL WITH THE COURT DOES NOT EXTEND TO ITS APPROVING
REFERENCE TO THE POSSIBILITY THAT HAWAII MAY YET BE ABLE TO MAINTAIN A
CLASS ACTION ON BEHALF OF HER CONSUMERS, ANTE, AT 266.  CF. COMMENT,
WRONGS WITHOUT REMEDY:  THE CONCEPT OF PARENS PATRIAE SUITS FOR TREBLE
DAMAGES UNDER THE ANTITRUST LAWS, 43 S.CAL.L.REV.  570, 580-583
(1970).  THE DISTRICT COURT'S DISMISSAL OF HAWAII'S CLASS ACTION COUNT
AS "UNMANAGEABLE" WAS NOT CERTIFIED FOR INTERLOCUTORY APPEAL, AND
HAWAII'S RIGHTS UNDER FED. RULE CIV. PROC. 23 ARE NOT BEFORE US FOR
REVIEW. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE STATE OF HAWAII SEEKS TREBLE DAMAGES AND INJUNCTIVE RELIEF FOR
AN ALLEGED CONSPIRACY AMONG RESPONDENTS TO MONOPOLIZE AND FIX PRICES ON
THE SALE OF PETROLEUM PRODUCTS IN THE STATE.  COUNT ONE OF HAWAII'S
COMPLAINT ALLEGES AN ECONOMIC INJURY TO THE STATE IN ITS PROPRIETARY
CAPACITY AS PURCHASER OF THOSE PRODUCTS.  COUNT TWO STATES A CLAIM BY
THE STATE, AS PARENS PATRIAE, FOR INJURY TO ITS "ECONOMY AND
PROSPERITY," INCLUDING THE WITHDRAWAL OF ITS CITIZENS'  REVENUES,
INCREASED TAXES TO OFFSET SUCH LOSSES, CURTAILMENT OF MANUFACTURING,
SHIPPING, AND COMMERCE, AND INJURY TO THE COMPETITIVE POSITION OF
HAWAIIAN GOODS IN THE NATIONAL MARKET.  COUNT THREE ALLEGES A CLASS
ACTION ON BEHALF OF ALL PURCHASERS IN THE STATE OF RESPONDENTS'
PETROLEUM PRODUCTS.  THE DISTRICT COURT DISMISSED COUNT THREE AS
UNMANAGEABLE, BUT DENIED RESPONDENTS' MOTION TO DISMISS COUNT TWO, THE
PARENS PATRIAE CLAIM.  AN INTERLOCUTORY APPEAL WAS TAKEN BY RESPONDENTS
UNDER 28 U.S.C. 1292(B), AND THE COURT OF APPEALS FOR THE NINTH CIRCUIT
REVERSED AND ORDERED DISMISSAL OF COUNT TWO.  THE COURT OF APPEALS HELD
THAT EVEN IF THE STATE'S ECONOMY MIGHT SUFFER INJURY FROM ANTITRUST
VIOLATIONS INDEPENDENT OF THE INJURY SUFFERED BY PRIVATE PERSONS, THAT
INJURY WOULD NOT BE TO THE STATE'S "BUSINESS OR PROPERTY" WITHIN THE
MEANING OF SEC. 4 OF THE CLAYTON ACT, AND IN ANY EVENT WOULD BE TOO
REMOTE FROM RESPONDENTS' ALLEGED VIOLATIONS TO PERMIT THE STATE TO
RECOVER AS PARENS PATRIAE. 

GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439 (1945), IN MY VIEW,
REQUIRES REVERSAL.  IN THAT CASE THE STATE OF GEORGIA SOUGHT TO INVOKE
THE ORIGINAL JURISDICTION OF THIS COURT TO REMEDY A CONSPIRACY BY
SEVERAL RAILROADS TO FIX RATES ON THE TRANSPORTATION OF GOODS TO AND
FROM THE STATE.  AS NOTED BY THE COURT, ANTE, AT 259 N. 13, GEORGIA
SOUGHT DAMAGES IN EACH OF THE FOUR COUNTS OF ITS COMPLAINT-- IN ITS
SOVEREIGN CAPACITY, AS A QUASI-SOVEREIGN, IN ITS PROPRIETARY CAPACITY,
AND AS REPRESENTATIVE OF ITS CITIZENS.  TREATING THE COMPLAINT AS A
PRAYER "FOR DAMAGES AND FOR INJUNCTIVE RELIEF," 324 U.S.,AT 445, THE
COURT HELD THAT GEORGIA, BOTH AS PARENS PATRIAE AND PROPRIETOR, WAS AN
APPROPRIATE PARTY TO BRING THESE CLAIMS: 

"THE ENFORCEMENT OF THE CRIMINAL SANCTIONS OF (THE ANTITRUST) ACTS
HAS BEEN ENTRUSTED EXCLUSIVELY TO THE FEDERAL GOVERNMENT.  SEE GEORGIA
V. EVANS, (316 U.S. 159,) 162.  BUT WHEN IT CAME TO OTHER SANCTIONS
CONGRESS FOLLOWED A DIFFERENT COURSE AND AUTHORIZED CIVIL SUITS NOT
ONLY BY THE UNITED STATES BUT BY OTHER PERSONS AS WELL.  AND WE FIND NO
INDICATIONS THAT, WHEN CONGRESS FASHIONED THOSE CIVIL REMEDIES, IT
RESTRICTED THE STATES TO SUITS TO PROTECT THEIR PROPRIETARY INTERESTS. 
SUITS BY A STATE, PARENS PATRIAE, HAVE LONG BEEN RECOGNIZED.  THERE IS
NO APPARENT REASON WHY THOSE SUITS SHOULD BE EXCLUDED FROM THE PURVIEW
OF THE ANTI-TRUST ACTS."  ID., AT 447.  GEORGIA WAS IN FACT DENIED
DAMAGES, BUT ONLY BECAUSE SUCH RECOVERY MIGHT OPERATE AS AN ILLEGAL
REBATE ON RATES ALREADY APPROVED BY THE INTERSTATE COMMERCE
COMMISSION.  SEE KEOGH V. CHICAGO & NORTHWESTERN R. CO., 260 U.S. 156
(1922).  IMPLICIT IN THE DECISION, HOWEVER, WAS THE HOLDING THAT
GEORGIA, AS PARENS PATRIAE, COULD HAVE RECOVERED DAMAGES UNDER THE
ANTITRUST LAWS FOR A CONSPIRACY INVOLVING OTHER THAN AGENCY-APPROVED
TRANSPORTATION CHARGES.  THAT HOLDING APPLIES WITH EQUAL FORCE HERE. 
HAWAII IS COMPLAINING, NOT OF AN AFFRONT TO ITS ABSTRACT SOVEREIGNTY,
BUT OF THE ECONOMIC LOSS OCCASIONED BY RESPONDENTS' CONSPIRACY.  AS IN
GEORGIA, THIS CAN ONLY BE CHARACTERIZED AS A WRONG TO THE STATE "WHICH,
IF PROVEN, LIMITS THE OPPORTUNITIES OF HER PEOPLE, SHACKLES HER
INDUSTRIES, RETARDS HER DEVELOPMENT, AND RELEGATES HER TO AN INFERIOR
ECONOMIC POSITION AMONG HER SISTER STATES."  324 U.S.,AT 451.  IF THAT
INJURY WOULD HAVE BEEN A SUFFICIENT BASIS FOR A DAMAGE CLAIM BY
GEORGIA, AS WE HELD IN THAT CASE, THEN IT SUPPORTS AN IDENTICAL ACTION
BY HAWAII HERE. 

EVEN IF GOERGIA WERE NOT DISPOSITIVE, I WOULD STILL FIND IN HAWAII'S
PAREN PATRIAE COUNT A CLAIM OF INJURY TO ITS "BUSINESS OR PROPERTY"
SUFFICIENT TO STATE A CLAIM UNDER SEC. 4.  THERE RUNS THROUGH THE
COURT'S OPINION AN ASSUMPTION THAT HAWAII'S PROPRIETARY CLAIMS, THOUGH
CONCEDEDLY SUFFICIENT TO STATE A CAUSE OF ACTION, ARE WHOLLY DISTINCT
IN CONCEPT FROM THOSE RAISED BY THE STATE AS PARENS PATRIAE.  WHILE I
AGREE THAT THE TWO COUNTS REPRESENT INJURIES TO THE STATE IN SEPARATE
CAPACITIES, THE INJURIES THEMSELVES ARE NOT SO UNRELATED AS TO JUSTIFY
A DIFFERENT TREATMENT UNDER THE CLAYTON ACT.  IN CHATTANOOGA FOUNDRY &
PIPE WORKS V. CITY OF ATLANTA, 203 U.S. 390 (1906), THE CITY BROUGHT A
TREBLE-DAMAGES ACTION AGAINST TWO PIPE COMPANIES WHOSE TRUST AND
COMBINATION HAD BEEN INVALIDATED IN ADDYSTON PIPE & STEEL CO. V. UNITED
STATES, 175 U.S. 211 (1899).  CLAIMING INJURY "'IN ITS BUSINESS OR
PROPERTY,'" 203 U.S.,AT 395, THE CITY SOUGHT DAMAGES IN ITS CAPACITY AS
A PURCHASER OF WATER PIPES FOR THE MUNICIPAL WATER SYSTEM.  IN
UPHOLDING THE RIGHT OF THE CITY TO BRING THAT ACTION, THE COURT
STATED: 

"IT WAS INJURED IN ITS PROPERTY, AT LEAST, IF NOT IN ITS BUSINESS OF
FURNISHING WATER, BY BEING LED TO PAY MORE THAN THE WORTH OF THE PIPE. 
A PERSON WHOSE PROPERTY IS DIMINISHED BY A PAYMENT OF MONEY WRONGFULLY
INDUCED IS INJURED IN HIS PROPERTY."  ID., AT 396.  SEE ALSO GEORGIA V.
EVANS, 316 U.S. 159 (1942). 

THE DETERMINANT, THEN, IS WHETHER "PROPERTY IS DIMINISHED BY A
PAYMENT OF MONEY WRONGFULLY INDUCED."  BUT WHAT WAS THE NATURE OF THE
INJURY TO PROPERTY FOR WHICH RECOVERY WAS PERMITTED IN CHATTANOOGA? 
CLEARLY IT WAS NOTHING MORE THAN THE ADDED EXPENSE INCURRED BY THE
CITY'S TREASURY AS THE RESULT OF THE ANTITRUST VIOLATION.  WHILE IT WAS
INCURRED IN THE COURSE OF A BUSINESS TRANSACTION, THE HARM WAS TO THE
ECONOMIC WEALTH OF THE CITY'S POPULATION AS A WHOLE, FOR ANY SAVINGS IN
PUBLIC EXPENDITURES THAT ULTIMATELY ACCRUED WERE FOR THEIR BENEFIT. 
THIS IS THE SAME SORT OF INTEREST SOUGHT TO BE PROTECTED HERE. 
HAWAII'S ECONOMY, TO WHICH TOURISM AND THE TOURIST TRADE ARE IMPORTANT,
WOULD BE PARTICULARLY VULNERABLE TO INJURY FROM A PRICE CONSPIRACY
INVOLVING PETROLEUM PRODUCTS.  IN SEEKING TO PRESERVE THE ECONOMIC
OPPORTUNITIES OF ITS PEOPLE, AND THE TAX REVENUES GENERATED THEREBY,
HAWAII IS ASSERTING AN INTEREST NOT SIGNIFICANTLY DIFFERENT IN CONCEPT
FROM THAT INVOLVED IN CHATTANOOGA.  WHETHER THE INJURY SOUGHT TO BE
REMEDIED CONSISTS OF ADDITIONAL PAYMENTS FROM THE PUBLIC PURSE, AS IN
THAT CASE, OR THE FAILURE TO GENERATE ADDITIONAL WEALTH, AS HERE, THE
RESULT IN EITHER INSTANCE IS THE SAME-- THE GOVERNMENT AND ITS
POPULATION, AS ENTITIES, HAVE SUFFERED HARM TO THEIR ECONOMIC WELL
BEING.  IF THAT HARM IS CHARACTERIZED "BUSINESS OR PROPERTY" IN ONE
CASE, THEN WE STRETCH NO TRADITIONAL PROPERTY CONCEPTS IN APPLYING THE
SAME LABEL IN THE OTHER.  /1/ 

THIS CONCLUSION IS NOT UNDERCUT BY 15 U.S.C. 15A, WHICH LIMITS
RECOVERY BY THE UNITED STATES FOR INJURY TO ITS "BUSINESS OR PROPERTY"
CAUSED BY A VIOLATION OF THE ANTITRUST LAWS TO "ACTUAL DAMAGES
SUFFERED" "SOLELY AS A BUYER OF GOODS."  S. REP. NO. 619, 84TH CONG.,
1ST SESS., 3 (1955).  NOTHING IN THE ACT SIMILARLY RESTRICTS A STATE,
SUING AS PARENS PATRIAE.  AS THE LEGISLATIVE HISTORY OF SEC. 15A SHOWS,
THE MAJOR EMPHASIS DURING PASSAGE OF THE SHERMAN ACT WAS ON THE METHODS
OF ITS ENFORCEMENT.  "(IT WAS BELIEVED THAT THE MOST EFFECTIVE METHOD,
IN ADDITION TO THE IMPOSITION OF PENALTIES BY THE UNITED STATES, WAS TO
PROVIDE FOR PRIVATE TREBLE-DAMAGE SUITS.  IT WAS ORIGINALLY HOPED THAT
THIS WOULD ENCOURAGE PRIVATE LITIGANTS TO BEAR A CONSIDERABLE AMOUNT OF
THE BURDEN AND EXPENSE OF ENFORCEMENT AND THUS SAVE THE GOVERNMENT TIME
AND MONEY."  ID., AT 2.  THUS PRIVATE LITIGANTS, ENCOURAGED BY THE HOPE
OF TRIPLE RECOVERY, WERE SEEN AS A MAJOR INSTRUMENT OF ANTITRUST
ENFORCEMENT, SUPPLEMENTED BY CRIMINAL PROSECUTIONS AND CIVIL FORFEITURE
ACTIONS BROUGHT BY THE FEDERAL GOVERNMENT.  THESE REMEDIES DID NOT,
HOWEVER, ADEQUATELY PROTECT THE GOVERNMENT AS THE VOLUME OF ITS
PROCUREMENT GREW AND COLLUSION AMONG ITS SUPPLIERS BECAME INCREASINGLY
EVIDENT.  THIS WAS THE MISCHIEF CONGRESS ENACTED SEC. 15A TO CURB: 

     "THE AMERICAN TAXPAYER IS ENTITLED TO FULL VALUE FOR HIS TAX

  DOLLAR.  HE SHOULD BE PROTECTED AGAINST ITS GOING INTO THE

  POCKETS OF WRONGDOERS IN THE FORM OF EXCESSIVE PRICES AND PROFITS

  GAINED THROUGH VIOLATION OF THE ANTITRUST LAWS.  IF HE WERE

  SPENDING THE MONEY HIMSELF, HE COULD SUE FOR TRIPLE DAMAGES. 

  SURELY, HE IS ENTITLED TO PROTECTION FROM ACTUAL LOSS WHERE THE

  GOVERNMENT SPENDS IT FOR HIM.  BY PERMITTING THE UNITED STATES

  GOVERNMENT TO RECOVER THE PROVABLE DAMAGES RESULTING FROM

  UNLAWFUL PRACTICES ENGAGED IN BY THOSE WITH WHOM IT DOES

  BUSINESS, (SEC. 15A) WOULD AFFORD THOSE SAFEGUARDS NECESSARY TO

  THE PUBLIC TREASURY AND AT THE SAME TIME SEVERELY DETER THOSE WHO

  WOULD CONSPIRE IN THEIR DEALINGS WITH FEDERAL DEPARTMENTS."  H.R.

  REP. NO. 422, 84TH CONG., 1ST SESS., 4-5 (1955). 

AT THE SAME TIME, HOWEVER, CONGRESS FELT THAT "UNLIKE THE SITUATION
WITH RESPECT TO PRIVATE PERSONS, THERE IS NO NEED TO FURNISH THE
GOVERNMENT ANY SPECIAL INCENTIVE TO ENFORCE THE ANTITRUST LAWS, A HEAVY
RESPONSIBILITY WITH WHICH IT IS ALREADY CHARGED," AND THEREFORE
CONGRESS GRANTED "TO THE GOVERNMENT THE RIGHT TO RECOVER ONLY ACTUAL,
AS DISTINGUISHED FROM TREBLE, DAMAGES."  ID., AT 4.  IN ADDITION,
CONGRESS FELT THAT THE UNITED STATES WAS "AMPLY EQUIPPED WITH THE
CRIMINAL AND CIVIL PROCESS WITH WHICH TO ENFORCE THE ANTITRUST LAWS. 
THE PROPOSED LEGISLATION, QUITE PROPERLY, TREATS THE UNITED STATES
SOLELY AS A BUYER OF GOODS AND PERMITS THE RECOVERY OF THE ACTUAL
DAMAGES SUFFERED."  S. REP. NO. 619, SUPRA, AT 3. 

THUS SEC. 15A SERVED A NARROWER PURPOSE THAN THE TREBLE-DAMAGES
PROVISIONS OF THE SHERMAN AND CLAYTON ACTS.  THE UNITED STATES WAS
"AMPLY EQUIPPED" WITH "CRIMINAL AND CIVIL PROCESS" FOR GENERAL
ENFORCEMENT, AND NEEDED A DAMAGE REMEDY SOLELY TO PROTECT ITSELF "AS A
BUYER OF GOODS."  ON THE OTHER HAND PRIVATE LITIGANTS, INCLUDING THE
STATES, LACKED THE GOVERNMENT'S "CRIMINAL AND CIVIL PROCESS."  YET THEY
WERE VIEWED AS PRIMARY ENFORCERS OF ANTITRUST POLICY AND WERE ARMED
WITH THE WEAPON OF TRIPLE RECOVERY AS A MEANS OF STIMULATING THEIR
EFFORTS.  IT IS PLAIN FROM THE HISTORY OF SEC. 15A THAT CONGRESS DID
NOT INTEND THE STATES TO BE DENIED THE TREBLE-DAMAGES REMEDY HAWAII
PURSUES HERE. 

FINALLY, THIS RESULT DOES NOT NECESSARILY LEAD TO DOUBLE RECOVERY. 
SINCE HAWAII IS BY DEFINITION ASSERTING CLAIMS "INDEPENDENT OF AND
BEHIND THE TITLES OF ITS CITIZENS," GEORGIA V. TENNESSEE COPPER CO.,
206 U.S. 230, 237 (1907), THERE MAY BE EXCLUDED FROM ITS RECOVERY ANY
MONETARY DAMAGES THAT MIGHT BE CLAIMED BY ITS CITIZENS INDIVIDUALLY OR
AS PART OF A PROPERLY CONSTITUTED CLASS.  THAT PROBLEM, LIKE
UNCERTAINTY OF DAMAGES, IS BETTER ANSWERED AFTER TRIAL THAN ON THE
PLEADINGS. 

IN SUM, I THINK THAT SINCE NO ONE QUESTIONS THAT HAWAII CAN MAINTAIN
A TREBLE-DAMAGES ACTION IN ITS PROPRIETARY CAPACITY, FOR ANALOGOUS
REASONS, HAWAII MAY ALSO MAINTAIN THE ACTION PLEADED IN COUNT TWO AS
PARENS PATRIAE. 

/1/  THE COURT SEEMS TO CONCEDE AS MUCH IN SAYING THAT AN "INJURY TO
THE STATE IN ITS PROPRIETARY CAPACITY . . . AFFECTS THE CITIZENS IN
MUCH THE SAME WAY AS AN INJURY OF THE SORT CLAIMED BY HAWAII HERE." 
ANTE, AT 262 N. 14.  YET BECAUSE THE ASSESSMENT OF DAMAGES MIGHT PROVE
MORE DIFFICULT IN A PARENS PATRIAE THAN A PROPRIETARY ACTION, THE COURT
CONCLUDES THAT "THE TWO KINDS OF INJURIES ARE (NOT) IDENTICAL IN
NATURE."  ID., AT 263 N. 14.  THE COURT PLAINLY CONFUSES TWO SEPARATE
ISSUES.  THE INJURY TO HAWAII'S GENERAL ECONOMY MAY PRESENT PROBLEMS OF
PROOF NOT RAISED IN ITS PROPRIETARY ACTION, BUT A MERE DIFFICULTY IN
THE ASSESSMENT OF DAMAGES CANNOT CHANGE THE NATURE OF THE DAMAGE
CLAIMED.  IN SHORT, I THINK THAT HAWAII HAS ALLEGED AN INJURY TO ITS
"BUSINESS OR PROPERTY," AND, ON THE ENTIRELY SEPARATE QUESTION OF
PROVING DAMAGES, AGREE WITH MY BROTHER DOUGLAS THAT THE INJURY CAN BE
QUANTIFIED, OR AT LEAST APPROXIMATED. 

MAXWELL M. BLECHER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE BERTRAM KANBARA, ATTORNEY GENERAL OF HAWAII, HIROMU SUZAWA,
ACTING ATTORNEY GENERAL, GEORGE PAI, DEPUTY ATTORNEY GENERAL, JOSEPH L.
ALIOTO, AND PETER J. DONNICI. 

FRANCIS R. KIRKHAM ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WERE RICHARD J. MACLAURY, MOSES LASKY, MALCOLM T. DUNGAN, AND
WILLIAM SIMON. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY EVELLE J.
YOUNGER, ATTORNEY GENERAL OF CALIFORNIA, AND ANTHONY C. JOSEPH, ROBERT
MURPHY, HERBERT DAVIS, MICHAEL I. SPIEGEL, AND CAROLE A. KORNBLUM,
DEPUTY ATTORNEYS GENERAL, FOR THE STATE OF CALIFORNIA, AND BY THE
ATTORNEYS GENERAL AND OTHER OFFICIALS FOR THEIR RESPECTIVE STATES AND
JURISDICTIONS AS FOLLOWS:  WILLIAM T. BAXLEY, ATTORNEY GENERAL OF
ALABAMA, GARY K. NELSON, ATTORNEY GENERAL OF ARIZONA, RAY THORNTON,
ATTORNEY GENERAL OF ARKANSAS, DUKE W. DUNBAR, ATTORNEY GENERAL OF
COLORADO, ROBERT K. KILLIAN, ATTORNEY GENERAL OF CONNECTICUT, W. LAIRD
STABLER, JR., ATTORNEY GENERAL OF DELAWARE, ROBERT L. SHEVIN, ATTORNEY
GENERAL OF FLORIDA, W. ANTHONY PARK, ATTORNEY GENERAL OF IDAHO, WILLIAM
J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, RICHARD C. TURNER, ATTORNEY
GENERAL OF IOWA, VERN MILLER, ATTORNEY GENERAL OF KANSAS, JOHN B.
BRECKINRIDGE, ATTORNEY GENERAL OF KENTUCKY, JACK P. F. GREMILLION,
ATTORNEY GENERAL OF LOUISIANA, JAMES S. ERWIN, ATTORNEY GENERAL OF
MAINE, ROBERT H. QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, FRANK J.
KELLEY, ATTORNEY GENERAL OF MICHIGAN, WARRAN SPANNAUS, ATTORNEY GENERAL
OF MINNESOTA, JOHN C. DANFORTH, ATTORNEY GENERAL OF MISSOURI, ROBERT L.
WOODAHL, ATTORNEY GENERAL OF MONTANA, ROBERT LIST, ATTORNEY GENERAL OF
NEVADA, WARREN B. RUDMAN, ATTORNEY GENERAL OF NEW HAMPSHIRE, GEORGE F.
KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, DAVID L. NORVELL, ATTORNEY
GENERAL OF NEW MEXICO, LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW
YORK, HELGI JOHANNESON, ATTORNEY GENERAL OF NORTH DAKOTA, WILLIAM J.
BROWN, ATTORNEY GENERAL OF OHIO, LARRY DERRYBERRY, ATTORNEY GENERAL OF
OKLAHOMA, RICHARD J. ISRAEL, ATTORNEY GENERAL OF RHODE ISLAND, GORDON
MYDLAND, ATTORNEY GENERAL OF SOUTH DAKOTA, DAVID M. PACK, ATTORNEY
GENERAL OF TENNESSEE, CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS,
VERNON B. ROMNEY, ATTORNEY GENERAL OF UTAH, JAMES M. JEFFORDS, ATTORNEY
GENERAL OF VERMONT, ANDREW P. MILLER, ATTORNEY GENERAL OF VIRGINIA,
SLADE GORTON, ATTORNEY GENERAL OF WASHINGTON, CHAUNCEY H. BROWNING,
JR., ATTORNEY GENERAL OF WEST VIRGINIA, ROBERT W. WARREN, ATTORNEY
GENERAL, AND GEORGE F. SIEKER, ASSISTANT ATTORNEY GENERAL, OF
WISCONSIN, AND J. LEE RANKIN OF THE CITY OF NEW YORK. 
..END :








IOWA BEEF PACKERS, INC. V. THOMPSON, 405 U.S. 228 


       IOWA BEEF PACKERS, INC. V. THOMPSON ET AL.

  CERTIORARI TO THE SUPREME COURT OF IOWA

        NO. 70-286.  ARGUED JANUARY 12, 1972-- DECIDED FEBRUARY 29,

     1972 


COURT'S GRANT OF CERTIORARI TO DECIDE WHETHER EMPLOYEES MAY SUE FOR
OVERTIME ALLEGEDLY WITHHELD IN VIOLATION OF THE FAIR LABOR STANDARDS
ACT IF THE COMPLAINT OF THAT VIOLATION WAS ALSO SUBJECT TO GRIEVANCE
AND ARBITRATION PROVISIONS OF A COLLECTIVE-BARGAINING AGREEMENT HELD
IMPROVIDENTLY GRANTED IN VIEW OF SUBSEQUENT DISCLOSURE THAT THOSE
PROVISIONS DID NOT APPLY TO ALL DISPUTES, BUT MERELY THOSE BASED ON
VIOLATIONS OF THE AGREEMENT. 

185 N.W.2D 738, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 

PER CURIAM. 

RESPONDENTS BROUGHT THIS SUIT IN AN IOWA DISTRICT COURT UNDER SEC.
16(B) OF THE FAIR LABOR STANDARDS ACT, 52 STAT. 1069, AS AMENDED, 29
U.S.C. 216(B), TO RECOVER OVERTIME COMPENSATION ALLEGEDLY NOT PAID BY
THEIR PETITIONER EMPLOYER IN VIOLATION OF THE OVERTIME PROVISIONS OF
THE ACT, 29 U.S.C. 207(A)(1).  THE DISTRICT COURT DENIED PETITIONER'S
MOTION TO DISMISS THE ACTION FOR FAILURE OF RESPONDENTS TO EXHAUST THE
GRIEVANCE ARBITRATION PROCEDURES PROVIDED IN A COLLECTIVE-BARGAINING
AGREEMENT BETWEEN PETITIONER AND RESPONDENTS' UNION AND AWARDED
RESPONDENTS THE OVERTIME CLAIMED PLUS COSTS AND ATTORNEYS' FEES.  THE
SUPREME COURT OF IOWA AFFIRMED, 185 N.W.2D 738 (1971).  WE GRANTED
CERTIORARI, 404 U.S. 820 (1971). 

THE COLLECTIVE-BARGAINING AGREEMENT REQUIRED PETITIONER TO PROVIDE A
LUNCH PERIOD FOR EACH EMPLOYEE NO LATER THAN FIVE HOURS FROM THE START
OF AN EMPLOYEE'S SHIFT.  PETITIONER PROVIDED THE LUNCH PERIOD BUT
REQUIRED THE EMPLOYEES TO REMAIN ON CALL DURING THE PERIOD. 
RESPONDENTS DID NOT CHOOSE, AS PERHAPS UNDER THE CONTRACT WAS OPEN TO
THEM, TO MAKE THE REQUIREMENT THE BASIS OF A GRIEVANCE FOR ALLEGED
VIOLATION EITHER OF THE LUNCH-PERIOD PROVISION OR OF THE HOURS-OF-WORK
PROVISION, ART. VII, REQUIRING TIME AND ONE-HALF FOR HOURS WORKED OVER
EIGHT IN ANY DAY OR 40 IN ANY WEEK.  THEY CLAIMED INSTEAD THAT, BECAUSE
OF THE REQUIREMENT, THE FAIR LABOR STANDARDS ACT, AS A MATTER OF LAW,
RENDERED THE LUNCH PERIOD "WORK" TIME, WHETHER OR NOT ACTUALLY WORKED,
FOR THE PURPOSE OF DETERMINING WHETHER PETITIONER VIOLATED ITS
STATUTORY OBLIGATION TO PAY OVERTIME RATES FOR WORK HOURS OVER 40 IN
ANY WORK WEEK.  SEE ARMOUR & CO. V. WANTOCK, 323 U.S. 126 (1944).  THE
GRIEVANCE THUS PERTAINED NOT TO AN ALLEGED VIOLATION OF THE AGREEMENT
BUT TO AN ALLEGED VIOLATION OF THE FAIR LABOR STANDARDS ACT. 

IN U.S. BULK CARRIERS V. ARGUELLES, 400 U.S. 351 (1971), THE COURT
HELD THAT A SEAMAN COULD SUE IN FEDERAL COURT FOR WAGES UNDER 46 U.S.C.
596 WITHOUT INVOKING GRIEVANCE AND ARBITRATION PROCEDURES UNDER A
COLLECTIVE-BARGAINING AGREEMENT THAT PROVIDED FOR RESOLUTION OF ALL
DISPUTES AND GRIEVANCES, NOT MERELY THOSE BASED ON ALLEGED VIOLATIONS
OF THE CONTRACT.  WE GRANTED CERTIORARI IN THIS CASE TO DECIDE WHETHER,
SIMILARLY, EMPLOYEES MAY SUE IN COURT TO RECOVER OVERTIME ALLEGEDLY
WITHHELD IN VIOLATION OF THE FAIR LABOR STANDARDS ACT, IF THEIR
COMPLAINT OF ALLEGED STATUTORY VIOLATION IS ALSO SUBJECT TO RESOLUTION
UNDER GRIEVANCE AND ARBITRATION PROVISIONS OF A COLLECTIVE-BARGAINING
AGREEMENT.  IT DEVELOPED AT ORAL ARGUMENT, HOWEVER, THAT THE GRIEVANCE
AND ARBITRATION PROVISIONS, ART. XX OF THE COLLECTIVE-BARGAINING
AGREEMENT INVOLVED IN THIS CASE, DO NOT HAVE THE BROAD SCOPE OF THE
PROCEDURES IN ARGUELLES, BUT APPLY ONLY TO GRIEVANCES "PERTAINING TO A
VIOLATION OF THE AGREEMENT."  MOREOVER, THE ISSUES AS PRESENTED BY
PETITIONER PROVIDE NO OCCASION TO ADDRESS, AND WE INTIMATE NO VIEW
UPON, THE QUESTION WHETHER, ALTHOUGH THE STATUTORY CLAIM IS NOT SUBJECT
TO CONTRACT ARBITRATION, PURSUIT OF THE STATUTORY REMEDY IS
NEVERTHELESS BARRED BECAUSE RESPONDENTS MIGHT HAVE MADE THE REQUIREMENT
TO BE ON CALL THE BASIS OF A GRIEVANCE FOR ALLEGED VIOLATION OF THE
LUNCH PERIOD OR OVERTIME PROVISION OF THE COLLECTIVE-BARGAINING
AGREEMENT.  IN THESE CIRCUMSTANCES, WHICH WERE NOT FULLY APPREHENDED AT
THE TIME CERTIORARI WAS GRANTED, THE WRIT OF CERTIORARI WILL BE
DISMISSED AS IMPROVIDENTLY GRANTED.  THE MONROSA V. CARBON BLACK, INC.,
359 U.S. 180, 183 (1959). 

IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE ARBITRATION CLAUSE IN THIS COLLECTIVE AGREEMENT REACHES "A
GRIEVANCE PERTAINING TO A VIOLATION OF THE AGREEMENT."  THE AGREEMENT
COVERED BOTH THE LUNCH PERIOD /1/  AND OVERTIME.  /2/ 

THE IOWA SUPREME COURT HELD THAT "(THE PRESENT CONTROVERSY IS
UNDOUBTEDLY ARBITRABLE" UNDER THE COLLECTIVE AGREEMENT.  GIVEN THE
PRESUMPTION FAVORING LIBERAL CONSTRUCTION OF ARBITRATION CLAUSES,
STEELWORKERS V. WARRIOR & GULF CO., 363 U.S. 574, 582-583, WE SHOULD
DEFER TO THAT RULING.  EVEN UNDER THAT CONSTRUCTION, IT SEEMS THAT A
SUIT FOR OVERTIME ALLEGEDLY WITHHELD IN VIOLATION OF THE FAIR LABOR
STANDARDS ACT, 29 U.S.C. 207(A)(1) IS MAINTAINABLE.  THAT WOULD MEAN
AFFIRMING THE IOWA SUPREME COURT.  U.S. BULK CARRIERS V. ARGUELLES, 400
U.S. 351, WHICH KEPT THE COURTHOUSE DOOR OPEN, WOULD SEEM TO CONTROL
THIS CASE.  /3/ 

AN AFFIRMANCE WOULD FOLLOW, A FORTIORI, IF THIS COLLECTIVE AGREEMENT
BE CONSTRUED AS NOT REQUIRING ARBITRATION OF THIS FLSA CLAIM.  FOR THEN
IT WOULD SEEM THAT THE WORKER WOULD HAVE A CHOICE TO SUE UNDER THE
STATUTE OR TO PROCEED TO ARBITRATION ON HIS CONTRACTUAL CLAIM ARISING
OUT OF THE SAME DISPUTE. 

THE PETITION, HOWEVER, IS NOT DISMISSED FOR THOSE REASONS BUT FOR A
WHOLLY DIFFERENT ONE.  IT IS SAID THAT THERE WAS A REQUIREMENT TO BE
"ON CALL" AND THAT THAT DUTY CONFLICTED WITH THE LUNCH OR OVERTIME
PROVISIONS OF THE AGREEMENT.  THE DIFFICULTY IS TWOFOLD:  THERE WAS NO
"ON CALL" GRIEVANCE EVER TENDERED SO FAR AS THE RECORD SHOWS; MOREOVER,
THE AGREEMENT CONCEDEDLY DOES NOT COVER ANY "ON CALL" REQUIREMENT OR
DUTY.  SO THERE IS NO CONFLICT BETWEEN STATUTORY REMEDY AND REMEDY BY
ARBITRATION AND THE DIFFICULTY POSED IS IMAGINARY. 

WE SHOULD "DISMISS AS IMPROVIDENTLY GRANTED" ONLY IN EXCEPTIONAL
SITUATIONS AND WHERE ALL NINE MEMBERS OF THE COURT AGREE.  IN ALL OTHER
CASES THE MERITS OF THE CONTROVERSY SHOULD BE DECIDED.  THE PRESENT
CASE ON ITS FACTS IS SIMPLE AND UNCOMPLICATED; AND A DECISION ON THE
MERITS IS APPARENTLY IMPORTANT TO UNIONS AND EMPLOYER ALIKE. 

/1/  ARTICLE XIV, SEC. 1, STATES: 

"A LUNCH PERIOD SHALL BE PROVIDED NO LATER THAN FIVE (5) HOURS FROM
THE START OF AN EMPLOYEE'S SHIFT, EXCEPT WHEN THE SHIFT DOES NOT EXCEED
FIVE AND ONE-HALF (5 1/2) HOURS." 

/2/  ARTICLE VII, SEC. 3, STATES: 

"TIME AND ONE-HALF (1 1/2) WILL BE PAID FOR HOURS WORKED IN EXCESS
OF EIGHT (8) IN ANY DAY.  TIME AND ONE-HALF (1 1/2) WILL BE PAID FOR
ALL HOURS WORKED IN EXCESS OF FORTY (40) IN ANY ONE WEEK." 

/3/  THE IOWA SUPREME COURT PROPERLY STATED: 

"WE DOUBT THAT THE GENERAL CONGRESSIONAL INTENT FAVORING ARBITRATION
CAN STAND AGAINST THE SPECIFIC CONGRESSIONAL INTENT WHICH IS MANIFEST
IN THE FAIR LABOR STANDARDS ACT PROVISIONS GIVING EMPLOYEES STRONG AND
DETAILED RIGHTS IN COURT.  WE THINK CONGRESS INTENDED THAT WORKMEN
SHOULD HAVE FREE ACCESS TO THE COURTS IN FLSA CASES.  WE ARE THE MORE
PERSUADED OF THAT VIEW BY THE BROAD CONGRESSIONAL POLICY EXPRESSED IN
SEC. 2 OF FLSA, 29 U.S.C.A. 202.  THERE THE OBJECTIVES OF THE ACT ARE
SET FORTH, AND THOSE OBJECTIVES ENCOMPASS MORE THAN SIMPLY WAGE RELIEF
FOR EMPLOYEES; THEY INCLUDE BROAD ECONOMIC CONSIDERATIONS-- IMPROVEMENT
IN COMMERCE AMONG THE STATES.  THE REMEDIES PROVIDED BY THE ACT ARE
PART OF THE CONGRESSIONAL SCHEME TO OBTAIN EMPLOYER COMPLIANCE WITH THE
ACT AND HENCE ACHIEVEMENT OF THOSE BROADER OBJECTIVES.  WE BELIEVE THAT
IF CONGRESSIONAL INTENT TO ALLOW A SEAMAN TO ARBITRATE OR SUE AT HIS
OPTION IS MANIFEST IN THE SEAMAN'S ACT INVOLVED IN ARGUELLES, AS THE
COURT HELD THERE, THEN AN INTENT TO GIVE WORKMEN SUCH AN OPTION IS ALSO
MANIFEST IN THE FAIR LABOR STANDARDS ACT."  185 N.W.2D 738, 742. 

LOUIS S. GOLDBERG ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS P. L. NYMANN. 

RAYMOND EDWARD FRANCK ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 

A. RAYMOND RANDOLPH, JR., ARGUED THE CAUSE PRO HAC VICE FOR THE
UNITED STATES AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD AND RICHARD F. SCHUBERT. 
..END :




BULLOCK V. CARTER, 405 U.S. 134 


       BULLOCK ET AL. V. CARTER ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS

        NO. 70-128.  ARGUED NOVEMBER 17, 1971-- DECIDED FEBRUARY
24,

           1972 


APPELLEES WHO SOUGHT TO BECOME CNADIDATES FOR LOCAL OFFICE IN THE
TEXAS DEMOCRATIC PRIMARY ELECTION CHALLENGED IN THE DISTRICT COURT THE
VALIDITY OF THE TEXAS STATUTORY SCHEME WHICH, WITHOUT WRITE-IN OR OTHER
ALTERNATIVE PROVISIONS, REQUIRES PAYMENT OF FEES RANGING AS HIGH AS
$8,900.  APPELLEES CLAIMED THAT THEY WERE UNABLE TO PAY THE REQUIRED
FEES AND WERE THEREFORE BARRED FROM RUNNING.  UNDER THE TEXAS STATUTE,
THE PARTY COMMITTEE ESTIMATES THE TOTAL COST OF THE PRIMARY AND
APPORTIONS IT AMONG CANDIDATES ACCORDING TO ITS JUDGMENT OF WHAT IS
"JUST AND EQUITABLE," IN LIGHT OF "THE IMPORTANCE, EMOLUMENT, AND TERM
OF OFFICE."  THE FEES FOR THE LOCAL CANDIDATES TEND APPRECIABLY TO
EXCEED THOSE FOR STATEWIDE CANDIDATES.  FOLLOWING A HEARING, THE
DISTRICT COURT DECLARED THE FEE SYSTEM INVALID AND ENJOINED ITS
ENFORCEMENT.  APPELLANTS CONTEND THAT THE FILING FEES ARE NECESSARY
BOTH TO REGULATE THE PRIMARY BALLOT AND TO FINANCE ELECTIONS.  HELD:
THE TEXAS PRIMARY ELECTION FILING-FEE SYSTEM CONTRAVENES THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 140-149. 

(A) SINCE THE TEXAS STATUTE IMPOSES FILING FEES OF SUCH MAGNITUDE
THAT NUMEROUS QUALIFIED CANDIDATES ARE PRECLUDED FROM FILING, IT FALLS
WITH UNEQUAL WEIGHT ON CANDIDATES AND VOTERS ACCORDING TO THEIR ABILITY
TO PAY THE FEES, AND THEREFORE IT MUST BE "CLOSELY SCRUTINIZED" AND CAN
BE SUSTAINED ONLY IF IT IS REASONABLY NECESSARY TO ACCOMPLISH A
LEGITIMATE STATE OBJECTIVE ANT NOT MERELY BECAUSE IT HAS SOME RATIONAL
BASIS.  PP. 140-144. 

(B) ALTHOUGH A STATE HAS AN INTEREST IN REGULATING THE NUMBER OF
CANDIDATES ON THE BALLOT AND ELIMINATING THOSE WHO ARE SPURIOUS, IT
CANNOT ATTAIN THESE OBJECTIVES BY ARBITRARY MEANS SUCH AS THOSE CALLED
FOR BY THE TEXAS STATUTE, WHICH ELIMINATES LEGITIMATE POTENTIAL
CANDIDATES, LIKE THOSE INVOLVED HERE, WHO CANNOT AFFORD THE FILING
FEES.  PP. 144-147. 

(C) THE APPORTIONMENT OF COSTS AMONG CANDIDATES IS NOT THE ONLY
MEANS AVAILABLE TO FINANCE PRIMARY ELECTIONS, AND THE STATE CAN
IDENTIFY CERTAIN BODIES AS POLITICAL PARTIES ENTITLED TO SPONSORSHIP IF
THE STATE ITSELF FINANCES THE PRIMARIES, AS IT DOES GENERAL ELECTIONS,
BOTH OF WHICH ARE IMPORTANT PARTS OF THE DEMOCRATIC PROCESS.  PP. 147
149. 

321 F.SUPP.  1358, AFFIRMED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

UNDER TEXAS LAW, A CANDIDATE MUST PAY A FILING FEE AS A CONDITION TO
HAVING HIS NAME PLACED ON THE BALLOT IN A PRIMARY ELECTION.  /1/  THE
CONSTITUTIONALITY OF THE TEXAS FILING-FEE SYSTEM IS THE SUBJECT OF THIS
APPEAL FROM THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT. 

APPELLEE PATE MET ALL QUALIFICATIONS TO BE A CANDIDATE IN THE MAY 2,
1970, DEMOCRATIC PRIMARY FOR THE OFFICE OF COUNTY COMMISSIONER OF
PRECINCT FOUR FOR EL PASO COUNTY, EXCEPT THAT HE WAS UNABLE TO PAY
$1,424.60 ASSESSMENT REQUIRED OF CANDIDATES IN THAT PRIMARY.  APPELLEE
WISCHKAEMPER SOUGHT TO BE PLACED ON THE DEMOCRATIC PRIMARY BALLOT AS A
CANDIDATE FOR COUNTY JUDGE IN TARRANT COUNTY, BUT HE WAS UNABLE TO PAY
THE $6,300 ASSESSMENT FOR CANDIDACY FOR THAT OFFICE.  APPELLEE CARTER
WISHED TO BE A DEMOCRATIC CANDIDATE FOR COMMISSIONER OF THE GENERAL
LAND OFFICE; HIS APPLICATION WAS NOT ACCOMPANIED BY THE REQUIRED $1,000
FILING FEE.  /2/ 

AFTER BEING DENIED PLACES ON THE DEMOCRATIC PRIMARY BALLOTS IN THEIR
RESPECTIVE COUNTIES, THESE APPELLEES INSTITUTED SEPARATE ACTIONS IN THE
DISTRICT COURT CHALLENGING THE VALIDITY OF THE TEXAS FILING-FEE
SYSTEM.  THEIR ACTIONS WERE CONSOLIDATED, AND A THREE-JUDGE DISTRICT
COURT WAS CONVENED PURSUANT TO 28 U.S.C. 2281 AND 2284.  APPELLEE
JENKINS WAS PERMITTED TO INTERVENE AS A VOTER ON HIS CLAIMED DESIRE TO
VOTE FOR WISCHKAEMPER, AND APPELLEE GUZMAN AND OTHERS WERE PERMITTED TO
INTERVENE AS VOTERS DESIRING TO CAST THEIR BALLOTS FOR PATE.  ON APRIL
3, 1970, THE DISTRICT COURT ORDERED THAT WISCHKAEMPER AND PATE BY
PERMITTED TO PARTICIPATE IN THE PRIMARY CONDUCTED ON MAY 2, 1970,
WITHOUT PREPAYMENT OF FILING FEES.  /3/  FOLLOWING A HEARING ON THE
MERITS, THE THREE-JUDGE COURT DECLARED THE TEXAS FILING-FEE SCHEME
UNCONSTITUTIONAL AND ENJOINED ITS ENFORCEMENT.  /4/  321 F.SUPP.  1358
(ND TEX. 1970).  A DIRECT APPEAL WAS TAKEN UNDER 28 U.S.C. 1253, AND WE
NOTED PROBABLE JURISDICTION.  403 U.S. 904. 

UNDER THE TEXAS STATUTE, PAYMENT OF THE FILING FEE IS AN ABSOLUTE
PREREQUISITE TO A CANDIDATE'S PARTICIPATION IN A PRIMARY ELECTION. 
THERE IS NO ALTERNATIVE PROCEDURE BY WHICH A POTENTIAL CNADIDATE WHO IS
UNABLE TO PAY THE FEE CAN GET ON THE PRIMARY BALLOT BY WAY OF
PETITIONING VOTERS, /5/  AND WRITE-IN VOTES ARE NOT PERMITTED IN
PRIMARY ELECTIONS FOR PUBLIC OFFICE.  /6/  ANY PERSON WHO IS WILLING
AND ABLE TO PAY THE FILING FEE AND WHO MEETS THE BASIC ELIGIBILITY
REQUIREMENTS FOR HOLDING THE OFFICE SOUGHT CAN RUN IN A PRIMARY. 

CANDIDATES FOR MOST DISTRICT, COUNTY, AND PRECINCT OFFICES MUST PAY
THEIR FILING FEE TO THE COUNTY EXECUTIVE COMMITTEE OF THE POLITICAL
PARTY CONDUCTING THE PRIMARY; THE COMMITTEE ALSO DETERMINES THE AMOUNT
OF THE FEE.  THE PARTY COMMITTEE MUST MAKE AN ESTIMATE OF THE TOTAL
COST OF THE PRIMARY AND APPORTION IT AMONG THE VARIOUS CANDIDATES "AS
IN THEIR JUDGMENT IS JUST AND EQUITABLE."  /7/  THE COMMITTEE'S
JUDGMENT IS TO BE GUIDED BY "THE IMPORTANCE, EMOLUMENT, AND TERM OF
OFFICE FOR WHICH THE NOMINATION IS TO BE MADE."  /8/  IN COUNTIES WITH
POPULATIONS OF ONE MILLION OR MORE, CANDIDATES FOR OFFICES OF TWO-YEAR
TERMS CAN BE ASSESSED UP TO 10% OF THEIR AGGREGATE ANNUAL SALARY, AND
CANDIDATES FOR OFFICES OF FOUR-YEAR TERMS CAN BE ASSESSED UP TO 15% OF
THEIR AGGREGATE ANNUAL SALARY.  /9/ IN SMALLER COUNTIES THERE ARE NO
SUCH PERCENTAGE LIMITATIONS.  /10/ 

THE RECORD SHOWS THAT THE FEES REQUIRED OF THE CANDIDATES IN THIS
CASE ARE FAR FROM EXCEPTIONAL IN THEIR MAGNITUDE.  /11/  THE SIZE OF
THE FILING FEES IS PLAINLY A NATURAL CONSEQUENCE OF A STATUTORY SYSTEM
THAT PLACES THE BURDEN OF FINANCING PRIMARY ELECTIONS ON CANDIDATES
RATHER THAN ON THE GOVERNMENTAL UNIT, AND THAT IMPOSES A PARTICULARLY
HEAVY BURDEN ON CANDIDATES FOR LOCAL OFFICE.  THE FILING FEES REQUIRED
OF CANDIDATES SEEKING NOMINATION FOR STATE OFFICES AND OFFICES
INVOLVING STATEWIDE PRIMARIES ARE MORE CLOSELY REGULATED BY STATUTE AND
TEND TO BE APPRECIABLY SMALLER.  THE FILING FEES FOR CANDIDATES FOR
STATE REPRESENTATIVE RANGE FROM $150 TO $600, DEPENDING ON THE
POPULATION OF THE COUNTY FROM WHICH NOMINATION IS SOUGHT.  /12/
CANDIDATES FOR STATE SENATOR ARE SUBJECT OT A MAXIMUM ASSESSMENT OF
$1,000.  /13/  CANDIDATES FOR NOMINATIONS REQUIRING STATEWIDE
PRIMARIES, INCLUDING CANDIDATES FOR GOVERNOR AND UNITED STATES SENATOR,
MUST PAY A FILING FEE OF $1,000 TO THE CHAIRMAN OF THE STATE EXECUTIVE
COMMITTEE OF THE PARTY CONDUCTING THE PRIMARY.  /14/  CANDIDATES FOR
THE STATE BOARD OF EDUCATION HAVE A FIXED FILING FEE OF $50.  /15/

        (1) 

THE FILING-FEE REQUIREMENT IS LIMITED TO PARTY PRIMARY ELECTIONS,
BUT THE MECHANISM OF SUCH ELECTIONS IS THE CREATURE OF STATE
LEGISLATIVE CHOICE AND HENCE IS "STATE ACTION" WITHIN THE MEANING OF
THE FOURTEENTH AMENDMENT.  GRAY V. SANDERS, 372 U.S. 368 (1963); NIXON
V. HERNDON, 273 U.S. 536 (1927).  /16/  ALTHOUGH WE HAVE EMPHASIZED ON
NUMEROUS OCCASIONS THE BREADTH OF POWER ENJOYED BY THE STATES IN
DETERMINING VOTER QUALIFICATIONS AND THE MANNER OF ELECTIONS, THIS
POWER MUST BE EXERCISED IN A MANNER CONSISTENT WITH THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  SEE E.G., WILLIAMS V.
RHODES, 393 U.S. 23 (1968); EVANS V. CORNMAN, 398 U.S. 419 (1970);
CARRINGTON V. RASH, 380 U.S. 89 (1965).  THE QUESTION PRESENTED IN THIS
CASE IS WHETHER A STATE LAW THAT PREVENTS POTENTIAL CANDIDATES FOR
PUBLIC OFFICE FROM SEEKING THE NOMINATION OF THEIR PARTY DUE TO THEIR
INABILITY TO PAY A PORTION OF THE COST OF CONDUCTING THE PRIMARY
ELECTION IS STATE ACTION THAT UNLAWFULLY DISCRIMINATES AGAINST THE
CANDIDATES SO EXCLUDED OR THE VOTERS WHO WISH TO SUPPORT THEM.  /17/ 

THE THRESHOLD QUESTION TO BE RESOLVED IS WHETHER THE FILING-SYSTEM
SHOULD BE SUSTAINED IF IT CAN BE SHOWN TO HAVE SOME RATIONAL BASIS,
/18/  OR WHETHER IT MUST WITHSTAND A MORE RIGID STANDARD OF REVIEW. 

IN HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663 (1966), THE
COURT HELD THAT VIRGINIA'S IMPOSITION OF AN ANNUAL POLL TAX NOT
EXCEEDING $1.50 ON RESIDENTS OVER THE AGE OF 21 WAS A DENIAL OF EQUAL
PROTECTION.  SUBJECTING THE VIRGINIA POLL TAX TO CLOSE SCRUTINY, THE
COURT CONCLUDED THAT THE PLACING OF EVEN A MINIMAL PRICE ON THE
EXERCISE OF THE RIGHT TO VOTE CONSTITUTED AN INVIDIOUS DISCRIMINATION. 
THE PROBLEM PRESENTED BY CANDIDATE FILING FEES IS NOT THE SAME, OF
COURSE, AND WE MUST DETERMINE WHETHER THE STRICT STANDARD OF REVIEW OF
THE HARPER CASE SHOULD BE APPLIED. 

THE INITIAL AND DIRECT IMPACT OF FILING FEES IS FELT BY ASPIRANTS
FOR OFFICE, RATHER THAN VOTERS, AND THE COURT HAS NOT HERETOFORE
ATTACHED SUCH FUNDAMENTAL STATUS TO CANDIDACY AS TO INVOKE A RIGOROUS
STANDARD OF REVIEW.  /19/  HOWEVER, THE RIGHTS OF VOTERS AND THE RIGHTS
OF CANDIDATES DO NOT LEND THEMSELVES TO NEAT SEPARATION; LAWS THAT
AFFECT CANDIDATES ALWAYS HAVE AT LEAST SOME THEORETICAL, CORRELATIVE
EFFECT ON VOTERS.  OF COURSE, NOT EVERY LIMITATION OR INCIDENTAL BURDEN
ON THE EXERCISE OF VOTING RIGHTS IS SUBJECT TO A STRINGENT STANDARD OF
REVIEW.  MCDONALD V. BOARD OF ELECTION, 394 U.S. 802 (1969).  TEXAS
DOES NOT PLACE A CONDITION ON THE EXERCISE OF THE RIGHT TO VOTE, /20/
NOR DOES IT QUANTITATIVELY DILUTE VOTES THAT HAVE BEEN CAST.  /21/
RATHER, THE TEXAS SYSTEM CREATES BARRIERS TO CANDIDATE ACCESS TO THE
PRIMARY BALLOT, THEREBY TENDING TO LIMIT THE FIELD OF CANDIDATES FROM
WHICH VOTERS MIGHT CHOOSE.  THE EXISTENCE OF SUCH BARRIERS DOES NOT OF
ITSELF COMPEL CLOSE SCRUTINY.  COMPARE JENNESS V. FORTSON, 403 U.S. 431
(1971), WITH WILLIAMS V. RHODES, 393 U.S. 23 (1968).  IN APPROACHING
CANDIDATE RESTRICTIONS, IT IS ESSENTIAL TO EXAMINE IN A REALISTIC LIGHT
THE EXTENT AND NATURE OF THEIR IMPACT ON VOTERS. 

UNLIKE A FILING-FEE REQUIREMENT THAT MOST CANDIDATES COULD BE
EXPECTED TO FULFILL FROM THEIR OWN RESOURCES OR AT LEAST THROUGH MODEST
CONTRIBUTIONS, THE VERY SIZE OF THE FEES IMPOSED UPON THE TEXAS SYSTEM
GIVES IT A PATENTLY EXCLUSIONARY CHARACTER.  MANY POTENTIAL OFFICE
SEEKERS LACKING BOTH PERSONAL WEALTH AND AFFLUENT BACKERS ARE IN EVERY
PRACTICAL SENSE PRECLUDED FROM SEEKING THE NOMINATION OF THEIR CHOSEN
PARTY, NO MATTER HOW QUALIFIED THEY MIGHT BE, AND NO MATTER HOW BROAD
OR ENTHUSIASTIC THEIR POPULAR SUPPORT.  THE EFFECT OF THIS EXCLUSIONARY
MECHANISM ON VOTERS IS NEITHER INCIDENTAL NOR REMOTE.  NOT ONLY ARE
VOTERS SUBSTNATIALLY LIMITED IN THEIR CHOICE OF CANDIDATES, BUT ALSO
THERE IS THE OBVIOUS LIKELIHOOD THAT THIS LIMITATION WOULD FALL MORE
HEAVILY ON THE LESS AFFLUENT SEGMENT OF THE COMMUNITY, WHOSE FAVORITES
MAY BE UNABLE TO PAY THE LARGE COSTS REQUIRED BY THE TEXAS SYSTEM.  TO
THE EXTENT THAT THE SYSTEM REQUIRES CANDIDATES TO RELY ON CONTRIBUTIONS
FROM VOTERS IN ORDER TO PAY THE ASSESSMENTS, A PHENOMENON THAT CAN
HARDLY BE RARE IN LIGHT OF THE SIZE OF THE FEES, IT TENDS TO DENY SOME
VOTERS THE OPPORTUNITY TO VOTE FOR A CANDIDATE OF THEIR CHOOSING; AT
THE SAME TIME IT GIVES THE AFFLUENT THE POWER TO PLACE ON THE BALLOT
THEIR OWN NAMES OR THE NAMES OF PERSONS THEY FAVOR.  APPELLANTS DO NOT
DISPUTE THAT THIS IS ENDEMIC TO THE SYSTEM.  THIS DISPARITY IN VOTING
POWER BASED ON WEALTH CANNOT BE DESCRIBED BY REFERENCE TO DISCRETE AND
PRECISELY DEFINED SEGMENTS OF THE COMMUNITY AS IS TYPICAL OF INEQUITIES
CHALLENGED UNDER THE EQUAL PROTECTION CLAUSE, AND THERE ARE DOUBTLESS
SOME INSTANCES OF CANDIDATES REPRESENTING THE VIEWS OF VOTERS OF MODEST
MEANS WHO ARE ABLE TO PAY THE REQUIRED FEE.  BUT WE WOULD IGNORE
REALITY WERE WE NOT TO RECOGNIZE THAT THIS SYSTEM FALLS WITH UNEQUAL
WEIGHT ON VOTERS, AS WELL AS CANDIDATES, ACCORDING TO THEIR ECONOMIC
STATUS. 

BECAUSE THE TEXAS FILING-FEE SCHEME HAS A REAL AND APPRECIABLE
IMPACT ON THE EXERCISE OF THE FRANCHISE, AND BECAUSE THIS IMPACT IS
RELATED TO THE RESOURCES OF THE VOTERS SUPPORTING A PARTICULAR
CANDIDATE, WE CONCLUDE, AS IN HARPER, THAT THE LAWS MUST BE "CLOSELY
SCRUTINIZED" AND FOUND REASONABLY NECESSARY TO THE ACCOMPLISHMENT OF
LEGITIMATE STATE OBJECTIVES IN ORDER TO PASS CONSITUTIONAL MUSTER. 

        (2) 

APPELLANTS CONTEND THAT THE FILING FEES REQUIRED BY THE CHALLENGED
STATUTES ARE NECESSARY BOTH TO REGULATE THE BALLOT IN PRIMARY ELECTIONS
AND TO PROVIDE A MEANS FOR FINANCING SUCH ELECTIONS. 

THE COURT HAS RECOGNIZED THAT A STATE HAS A LEGITIMATE INTEREST IN
REGULATING THE NUMBER OF CANDIDATES ON THE BALLOT.  JENNESS V. FORTSON,
403 U.S.,AT 442; WILLIAMS V. RHODES, 393 U.S.,AT 32.  IN SO DOING, THE
STATE UNDERSTANDABLY AND PROPERLY SEEKS TO PREVENT THE CLOGGING OF ITS
ELECTION MACHINERY, AVOID VOTER CONFUSION, AND ASSURE THAT THE WINNER
IS THE CHOICE OF A MAJORITY, OR AT LEAST A STRONG PLURALITY, OF THOSE
VOTING, WITHOUT THE EXPENSE AND BURDEN OF RUNOFF ELECTIONS.  /22/
ALTHOUGH WE HAVE NO WAY OF GAUGING THE NUMBER OF CANDIDATES WHO MIGHT
ENTER PRIMARIES IN TEXAS IF ACCESS TO THE BALLOT WERE UNIMPEDED BY THE
LARGE FILING FEES IN QUESTION HERE, WE ARE BOUND TO RESPECT THE
LEGITIMATE OBJECTIVES OF THE STATE IN AVOIDING OVERCROWDED BALLOTS. 
MOREOVER, A STATE HAS AN INTEREST, IF NOT A DUTY, TO PROTECT THE
INTEGRITY OF ITS POLITICAL PROCESSES FROM FRIVOLOUS OR FRAUDULENT
CANDIDACIES.  JENNESS V. FORTSON, 403 U.S.,AT 442. 

THERE IS NO ESCAPE FROM THE CONCLUSION THAT THE IMPOSITION OF FILING
FEES RANGING AS HIGH AS $8,900 TENDS TO LIMIT THE NUMBER OF CANDIDATES
ENTERING THE PRIMARIES.  HOWEVER, EVEN UNDER CONVENTIONAL STANDARDS OF
REVIEW, A STATE CANNOT ACHIEVE ITS OBJECTIVES BY TOTALLY ARBITRARY
MEANS; THE CRITERION FOR DIFFERING TREATMENT MUST BEAR SOME RELEVANCE
TO THE OBJECT OF THE LEGISLATION.  MOREY V. DOUD, 354 U.S. 457, 465
(1957); SMITH V. CAHOON, 283 U.S. 553, 567 (1931).  TO SAY THAT THE
FILING FEE REQUIREMENT TENDS TO LIMIT THE BALLOT TO THE MORE SERIOUS
CANDIDATES IS NOT ENOUGH.  THERE MAY WELL BE SOME RATIONAL RELATIONSHIP
BETWEEN A CANDIDATE'S WILLINGNESS TO PAY A FILING FEE AND THE
SERIOUSNESS WITH WHICH HE TAKES HIS CANDIDACY, /23/  BUT THE CANDIDATES
IN THIS CASE AFFIRMATIVELY ALLEGED THAT THEY WERE UNABLE, NOT SIMPLY
UNWILLING, TO PAY THE ASSESSED FEES, AND THERE WAS NO CONTRARY
EVIDENCE.  IT IS UNCONTESTED THAT THE FILING FEES EXCLUDE LEGITIMATE AS
WELL AS FRIVOLOUS CANDIDATES.  AND EVEN ASSUMING THAT EVERY PERSON
PAYING THE LARGE FEES REQUIRED BY TEXAS LAW TAKES HIS OWN CANDIDACY
SERIOUSLY, THAT DOES NOT MAKE HIM A "SERIOUS CANDIDATE" IN THE POPULAR
SENSE.  IF THE TEXAS FEE REQUIREMENT IS INTENDED TO REGULATE THE BALLOT
BY WEEDING OUT SPURIOUS CANDIDATES, IT IS EXTRAORDINARILY ILL-FITTED TO
THAT GOAL; /24/  OTHER MEANS TO PROTECT THOSE VALID INTERESTS ARE
AVAILABLE. 

INSTEAD OF ARGUING FOR THE REASONABLENESS OF THE EXCLUSION OF SOME
CANDIDATES, APPELLANTS RELY ON THE FACT THAT THE FILING-FEE REQUIREMENT
IS APPLICABLE ONLY TO PARTY PRIMARIES, AND POINT OUT THAT A CANDIDATE
CAN GAIN A PLACE ON THE BALLOT IN THE GENERAL ELECTION WITHOUT PAYMENT
OF FEES BY SUBMITTING A PROPER APPLICATION ACCOMPANIED BY A VOTER
PETITION.  /25/  APART FROM THE FACT THAT THE PRIMARY ELECTION MAY BE
MORE CRUCIAL THAN THE GENERAL ELECTION IN CERTAIN PARTS OF TEXAS, /26/
WE CAN HARDLY ACCEPT AS REASONABLE AN ALTERNATIVE THAT REQUIRES
CANDIDATES AND VOTERS TO ABANDON THEIR PARTY AFFILIATIONS IN ORDER TO
AVOID THE BURDENS OF THE FILING FEES IMPOSED BY STATE LAW.  APPELLANTS
HAVE NOT DEMONSTRATED THAT THEIR PRESENT FILING-FEE SCHEME IS A
NECESSARY OR REASONABLE TOOL FOR REGULATING THE BALLOT.     IN ADDITION
TO THE STATE'S PURPORTED INTEREST IN REGULATING THE BALLOT, THE FILING
FEES SERVE TO RELIEVE THE STATE TREASURY OF THE COST OF CONDUCTING THE
PRIMARY ELECTIONS, AND THIS IS A LEGITIMATE STATE OBJECTIVE; IN THIS
LIMITED SENSE IT CANNOT BE SAID THAT THE FEE SYSTEM LACKS A RATIONAL
BASIS.  /27/  BUT UNDER THE STANDARD OF REVIEW WE CONSIDER APPLICABLE
TO THIS CASE, THERE MUST BE A SHOWING OF NECESSITY.  APPELLANTS
STRENUOUSLY URGE THAT APPORTIONING THE COST AMONG THE CANDIDATES IS THE
ONLY FEASIBLE MEANS FOR FINANCING THE PRIMARIES.  THEY ARGUE THAT IF
THE STATE MUST FINANCE THE PRIMARIES, IT WILL HAVE TO DETERMINE WHICH
POLITICAL BODIES ARE "PARTIES" SO AS TO BE ENTITLED TO STATE
SPONSORHSIP FOR THEIR NOMINATING PROCESS, AND THAT THIS WILL RESULT IN
NEW CLAIMS OF DISCRIMINATION.  APPELLANTS SEEM TO OVERLOOK THE FACT
THAT A SIMILAR DISTINCTION IS PRESENTLY EMBODIED IN TEXAS LAW SINCE
ONLY THOSE POLITICAL PARTIES WHOSE GUBERNATORIAL CANDIDATE RECEIVED
200,000 OR MORE VOTES IN THE LAST PRECEDING GENERAL ELECTION ARE
REQUIRED TO CONDUCT PRIMARY ELECTIONS.  /28/  MOREOVER, THE COURT HAS
RECENTLY UPHELD THE VALIDITY OF A STATE LAW DISTINGUISHING BETWEEN
POLITICAL PARTIES ON THE BASIS OF SUCCESS IN PRIOR ELECTIONS.  JENNESS
V. FORTSON, SUPRA.  WE ARE NOT PERSUADED THAT TEXAS WOULD BE FACED WITH
AN IMPOSSIBLE TASK IN DISTINGUISHING BETWEEN POLITICAL PARTIES FOR THE
PURPOSE OF FINANCING PRIMARIES. 

WE ALSO REJECT THE THEORY THAT SINCE THE CANDIDATES ARE AVAILING
THEMSELVES OF THE PRIMARY MACHINERY, IT IS APPROPRIATE THAT THEY PAY
THAT SHARE OF THE COST THAT THEY HAVE OCCASIONED.  THE FORCE OF THIS
ARGUMENT IS DILUTED BY THE FACT THAT CANDIDATES FOR OFFICES REQUIRING
STATEWIDE PRIMARIES ARE GENERALLY ASSESSED AT A LOWER RATE THAN
CANDIDATES FOR LOCAL OFFICE, ALTHOUGH THE STATEWIDE PRIMARIES
UNDOUBTEDLY INVOLVE A GREATER EXPENSE.  /29/  MORE IMPORTANTLY, THE
COSTS DO NOR ARISE BECAUSE CANDIDATES DECIDE TO ENTER A PRIMARY OR
BECAUSE THE PARTIES DECIDE TO CONDUCT ONE, BUT BECAUSE THE STATE HAS,
AS A MATTER OF LEGISLATIVE CHOICE, DIRECTED THAT PARTY PRIMARIES BE
HELD.  THE STATE HAS PRESUMABLY CHOSEN THIS COURSE MORE TO BENEFIT THE
VOTERS THAN THE CANDIDATES. 

APPELLANTS SEEM TO PLACE RELIANCE ON THE SELF-EVIDENT FACT THAT IF THE
STATE MUST ASSUME THE COST, THE VOTERS, AS TAXPAYERS, WILL ULTIMATELY
BE BURDENED WITH THE EXPENSE OF THE PRIMARIES.  BUT IT IS FAR TOO LATE
TO MAKE OUT A CASE THAT THE PARTY PRIMARY IS SUCH A LESSER PART OF THE
DEMOCRATIC PROCESS THAT ITS COST MUST BE SHIFTED AWAY FROM THE
TAXPAYERS GENERALLY.  THE FINANCIAL BURDEN FOR GENERAL ELECTIONS IS
CARRIED BY ALL TAXPAYERS AND APPELLANTS HAVE NOT DEMONSTRATED A VALID
BASIS FOR DISTINGUISHING BETWEEN THESE TWO LEGITIMATE COSTS OF THE
DEMOCRATIC PROCESS.  IT SEEMS APPROPRIATE THAT A PRIMARY SYSTEM
DESIGNED TO GIVE THE VOTERS SOME INFLUENCE AT THE NOMINATING STAGE
SHOULD SPREAD THE COST AMONG ALL OF THE VOTERS IN AN ATTEMPT TO
DISTRIBUTE THE INFLUENCE WITHOUT REGARD TO WEALTH.  VIEWING THE MYRIAD
GOVERNMENTAL FUNCTIONS SUPPORTED FROM GENERAL REVENUES, IT IS DIFFICULT
TO SINGLE OUT ANY OF A HIGHER ORDER THAN THE CONDUCT OF ELECTIONS AT
ALL LEVELS TO BRING FORTH THOSE PERSONS DESIRED BY THEIR FELLOW
CITIZENS TO GOVERN.  WITHOUT MAKING LIGHT OF THE STATE'S INTEREST IN
HUSBANDING ITS REVENUES, WE FAIL TO SEE SUCH AN ELEMENT OF NECESSITY IN
THE STATE'S PRESENT MEANS OF FINANCING PRIMARIES AS TO JUSTIFY THE
RESULTING INCURSION ON THE PREROGATIVES OF VOTERS. 

        (3) 

SINCE THE STATE HAS FAILED TO ESTABLISH THE REQUISITE JUSTIFICATION
FOR THIS FILING-FEE SYSTEM, WE HOLD THAT IT RESULTS IN A DENIAL OF
EQUAL PROTECTION OF THE LAWS.  IT MUST BE EMPHASIZED THAT NOTHING
HEREIN IS INTENDED TO CAST DOUBT ON THE VALIDITY OF REASONABLE
CANDIDATE FILING FEES OR LICENSING FEES IN OTHER CONTEXTS.  BY
REQUIRING CANDIDATES TO SHOULDER THE COSTS OF CONDUCTING PRIMARY
ELECTIONS THROUGH FILING FEES AND BY PROVIDING NO REASONABLE
ALTERNATIVE MEANS OF ACCESS TO THE BALLOT, THE STATE OF TEXAS HAS
ERECTED A SYSTEM THAT UTILIZES THE CRITERION OF ABILITY TO PAY AS A
CONDITION TO BEING ON THE BALLOT, DENYING AN UNDETERMINED NUMBER OF
VOTERS THE OPPORTUNITY TO VOTE FOR CANDIDATES OF THEIR CHOICE.  THESE
SALIENT FEATURES OF THE TEXAS SYSTEM ARE CRITICAL TO OUR DETERMINATION
OF CONSTITUTIONAL INVALIDITY. 

     AFFIRMED. 

/1/  SEE ARTS. 13.07A, 13.08A, 13.15, AND 13.16 OF THE TEXAS
ELECTION CODE ANN. (SUPP. 1970-1971). 

/2/  CARTER ALSO FAILED TO HAVE HIS APPLICATION NOTARIZED AND TO HAVE
IT ACCOMPANIED BY A STATUTORY LOYALTY AFFIDAVIT.  SINCE APPELLEES PATE
AND WISCHKAEMPER WERE IN ALL RESPECTS ELIGIBLE TO BE CANDIDATES IN THE
PRIMARY EXCEPT FOR THEIR FAILURE TO PAY THE FILING FEES, CARTER'S
PARTICIPATION IN THIS APPEAL IS SUPERFLUOUS AND WE NEED NOT DECIDE
WHETHER THE ADDITIONAL DEFECTS IN HIS APPLICATION DEPRIVE HIM OF
STANDING TO ATTACK THE CONSTITUTIONALITY OF THE FILING-FEE SYSTEM. 

/3/  THE ORDER PROVIDED THAT THEIR ULTIMATE LIABILITY FOR THE FEES
WOULD DEPEND ON THE OUTCOME OF THIS ACTION.  PRELIMINARY RELIEF WAS NOT
GRANTED TO CARTER BECAUSE OF HIS NONCOMPLIANCE WITH REQUISITES FOR
CANDIDACY UNRELATED TO THE CHALLENGED FILING FEES.  SEE N. 2, SUPRA. 

/4/  THE SPECIFIC PROVISIONS HELD UNCONSTITUTIONAL ARE THOSE LISTED
IN N. 1, SUPRA. 

/5/  TEXAS LAW DOES PERMIT THE NAMES OF INDEPENDENT CANDIDATES TO
APPEAR ON THE OFFICIAL BALLOT IN THE GENERAL ELECTION IF A PROPER
APPLICATION CONTAINING A VOTER PETITION IS SUBMITTED.  THE NUMBER OF
ELIGIBLE VOTERS REQUIRED TO SIGN THE PETITION VARIES FROM 1% TO 5%
DEPENDING ON THE OFFICE SOUGHT.  FOR DISTRICT, COUNTY, AND PRECINCT
OFFICES, CANDIDATES MUST OBTAIN THE SIGNATURES OF 5% OF THE ELIGIBLE
VOTERS WITH A CEILING OF 500 SIGNATURES.  NO PERSON MAY SIGN THE
APPLICATION OF MORE THAN ONE PERSON FOR THE SAME OFFICE, AND NO PERSON
WHO HAS VOTED IN A PRIMARY MAY SIGN THE APPLICATION OF A CANDIDATE FOR
AN OFFICE FOR WHICH A NOMINATION WAS MADE AT SUCH PRIMARY.  ART. 13.50,
TEX. ELECTION CODE ANN. (1967). 

NO FEES ARE ASSESSED AGAINST CANDIDATES IN GENERAL ELECTIONS. 

/6/  ART. 13.09(B), TEX. ELECTION CODE ANN. (SUPP. 1970-1971). 
WRITE-IN VOTES ARE PERMITTED FOR THE PARTY OFFICES OF COUNTY CHAIRMAN
AND PRECINCT CHAIRMAN IN THE GENERAL PRIMARY BUT NOT IN THE RUN-OFF
PRIMARY.  IBID. 

FORMER ART. 13.08C (REPEALED, ACTS 1967, 60TH LEG., P. 1932, C. 723,
SEC. 77) PERMITTED WRITE-IN VOTES IN PRIMARY ELECTIONS AND PROVIDED
THAT IF A WRITE-IN CANDIDATE IN THE FIRST PRIMARY EITHER RECEIVED A
MAJORITY OF THE VOTES OR WAS ONE OF THE TWO HIGHEST VOTE GETTERS IN A
RACE IN WHICH NO CANDIDATE RECEIVED A MAJORITY OF THE VOTES, HE COULD
NOT BE THE PARTY'S NOMINEE IN THE GENERAL ELECTION OR PARTICIPATE IN
THE RUN-OFF PRIMARY, UNLESS AND UNTIL HE PAID THE FILING FEE HE WOULD
HAVE BEEN ASSESSED HAD HE ORIGINALLY SOUGHT A PLACE ON THE PRIMARY
BALLOT. 

/7/  ART. 13.08, TEX. ELECTION CODE ANN. (SUPP. 1970-1971). 

/8/  IBID. 

/9/  ART. 13.08A, TEX. ELECTION CODE ANN. (SUPP. 1970-1971).  THE
PROVISION IS APPLICABLE TO MEMBERS OF CONGRESS. 

/10/  THE $6,300 FEE REQUIRED OF APPELLEE WISCHKAEMPER, FOR EXAMPLE,
AMOUNTS TO 32% OF THE $19,700 ANNUAL SALARY FOR COUNTY JUDGE IN TARRANT
COUNTY.  SIMILARLY, IN THE MAY 2, 1970, DEMOCRATIC PRIMARY, CANDIDATES
FOR FIVE COUNTY OFFICES IN WARD COUNTY WERE ASSESSED $6,250 FOR A
FILING FEE; THIS FEE REPRESENTED 76.6% OF THE $8,160 ANNUAL SALARY FOR
FOUR OF THESE OFFICES; FOR THE FIFTH OFFICE, THAT OF COUNTY
COMMISSIONER, IT REPRESENTED 99.7% OF THE ANNUAL SALARY OF $6,270. 

/11/  ASSESSMENTS IN EXCESS OF $1,000 APPEAR TO BE COMMON IN MANY
TEXAS COUNTIES, AND ASSESSMENTS EXCEEDING $5,000 ARE TYPICAL FOR
CERTAIN OFFICES IN SEVERAL COUNTIES.  FILING FEES FOR JUDGESHIPS SEEM
TO RUN PARTICULARLY HIGH.  PERSONS SEEKING TO RUN IN THE MAY 2, 1970,
DEMOCRATIC PRIMARY FOR THE OFFICE OF DISTRICT JUDGE IN TARRANT COUNTY
WERE REQUIRED TO PAY $8,900 IN ORDER TO HAVE THEIR NAMES APPEAR ON THE
BALLOT. 

IT SHOULD BE NOTED, HOWEVER, THAT AMOUNTS NOT NEEDED TO FINANCE THE
PRIMARY ARE REFUNDED TO THE CANDIDATES, AND THAT IN SOME COUNTIES
REFUNDS TEND TO RUN AS HIGH AS 50% OR MORE OF THE ASSESSED FILING FEE. 

/12/  ARTS. 13.08A, 13.16 SUBD. 2, TEX. ELECTION CODE ANN.  (SUPP.
1970-1971): 

POPULATION OF COUNTY . . . FILING FEE 

LESS THAN 650,000 . . . $150 

650,000 TO 900,000 . . . $600 

900,000 TO 1,000,000 . . . $300 

1,000,000 OR MORE . . . $500 

IT IS NOT CLEAR FROM THE FACE OF THE STATUTE WHY CANDIDATES FROM
COUNTIES HAVING POPULATIONS BETWEEN 650,000 AND 900,000 MUST PAY MORE
THAN CANDIDATES FROM COUNTIES OF LARGER SIZES. 

AN ADDITIONAL PROVISION REQUIRES THAT CANDIDATES FOR STATE
REPRESENTATIVE FROM DISTRICTS ENCOMPASSING EITHER EIGHT OR NINE
COUNTIES MUST PAY $25 PER COUNTY AS A FILING FEE.  ART. 13.08A, TEX.
ELECTION CODE ANN. (SUPP. 1970-1971). 

/13/  ART. 13.08A, TEX. ELECTION CODE ANN. (SUPP. 1970-1971).  THERE
IS A FIXED-FEE SCHEDULE IF NOMINATION IS SOUGHT FROM A COUNTY WITH A
POPULATION OF 650,000 OR MORE: 

POPULATION OF COUNTY . . . FILING FEE 

650,000 TO 900,000 /13A/  . . . $1,000 

900,000 TO 1,000,000 . . . $300 

1,000,000 OR MORE . . . $1,000 

THERE IS A CEILING ON THE FILING FEE IF NOMINATION IS SOUGHT IN A
SENATORIAL DISTRICT ENCOMPASSING COUNTIES WITH LESS THAN 650,000 IN
POPULATION.  ART. 13.16 SUBD. 1, TEX. ELECTION CODE ANN. (SUPP. 1970
1971): 

POPULATION OF COUNTY . . . FILING FEE PER COUNTY 

LESS THAN 5,000 . . . $1 

5,000 TO 10,000 . . . $5 

10,000 TO 40,000 . . . $10 

40,000 TO 125,000 . . . $50 

125,000 TO 200,000 . . . $75 

200,000 TO 650,000 . . . $100 

PERSONS SEEKING NOMINATION IN A SENATORIAL DISTRICT CONSTITUTING
EXACTLY TWO COUNTIES MUST PAY A FILING FEE OF $200. 

/13A/  IF PART OF SUCH COUNTY IS JOINED TO TWO OR MORE COUNTIES TO
CONSTITUTE A SENATORIAL DISTRICT, THE FILING FEE IS FIXED AT $250. 

/14/  ART. 13.15 TEX. ELECTION CODE ANN. (SUPP. 1970-1971). 
CANDIDATES FOR JUSTICE OF THE COURT OF CIVIL APPEALS ARE ALSO REQUIRED
TO PAY THEIR FILING FEES TO THE CHAIRMAN OF THE STATE COMMITTEE, AT THE
RATE OF 5% OF ONE YEAR'S SALARY.  IBID. 

/15/  ART. 13.08(4), TEX. ELECTION CODE ANN. (SUPP. 1970-1971). 

/16/  APPELLANTS ASK THE COURT TO RECONSIDER THE SCOPE OF SMITH V.
ALLWRIGHT, 321 U.S. 649 (1944), IN WHICH THE COURT HELD THAT THE ACTION
OF THE DEMOCRATIC PARTY OF TEXAS IN EXCLUDING NEGROES FROM
PARTICIPATION IN PARTY PRIMARIES CONSTITUTED "STATE ACTION."  SEE ALSO
TERRY V. ADAMS, 345 U.S. 461 (1953); CF. NIXON V. CONDON, 286 U.S. 73
(1932).  APPELLANTS CONTEND THAT NOT EVERY ASPECT OF A PARTY PRIMARY
ELECTION MUST BE CONSIDERED "STATE ACTION" COGNIZABLE UNDER THE
FOURTEENTH AMENDMENT.  BUT WE ARE HERE CONCERNED WITH THE
CONSTITUTIONALITY OF A STATE LAW RATHER THAN ACTION BY A POLITICAL
PARTY AND THUS HAVE NO OCCASION TO CONSIDER THE SCOPE OF THE HOLDING IN
SMITH V. ALLWRIGHT, SUPRA. 

/17/  THE TEXAS LEGISLATURE HAS ENACTED A "CONTINGENT, TEMPORARY
LAW" MODIFYING THE FILING-FEE REQUIREMENT INVOLVED IN THIS CASE.  C.
11, H.B. 5, 62D LEG., 1ST CALLED SESS. (1971).  THE NEW PROVISIONS
ALLOW PERSONS UNABLE TO PAY THE FILING FEES TO HAVE THEIR NAMES PLACED
ON THE BALLOT IN PRIMARY ELECTIONS IF THEY SUBMIT A PETITION 

"SIGNED BY QUALIFIED VOTERS ELIGIBLE TO VOTE FOR THE OFFICE FOR
WHICH THE CANDIDATE IS RUNNING, EQUAL IN NUMBER TO AT LEAST 10 PERCENT
OF THE ENTIRE VOTE CAST FOR THAT PARTY'S CANDIDATE FOR GOVERNOR IN THE
LAST PRECEDING GENERAL ELECTION IN THE TERRITORY . . . IN WHICH THE
CANDIDATE IS RUNNING."  (ART. 13.08CB).) 

THE ACT PROVIDES THAT IT IS TO GO INTO EFFECT ONLY IF "(1) THE
SUPREME COURT OF THE UNITED STATES DOES NOT DISPOSE OF THE APPEAL (IN
THIS CASE) . . . BEFORE JANUARY 1, 1972; OR (2) THE SUPREME COURT OF
THE UNITED STATES AFFIRMS OR REFUSES TO REVIEW THE JUDGMENT OF THE
DISTRICT COURT IN THE AFORESAID CASE . . . " (SEC. 7(B)).  THE ACT
EXPIRES ON ITS OWN FORCE ON DECEMBER 31, 1972, AT WHICH TIME THE PRIOR
LAW GOES BACK INTO EFFECT. 

ALTHOUGH THE ACT HAS GONE INTO EFFECT DUE TO THE ABSENCE OF DECISION
BY THE COURT ON THIS APPEAL BEFORE JANUARY 1, 1972, THE CHANGE IN THE
LAW DOES NOT RENDER THIS CASE MOOT.  THE EFFECT OF THE "CONTINGENT,
TEMPORARY LAW" ENACTED BY THE TEXAS LEGISLATURE IS TO SUSPEND
ENFORCEMENT OF THE STRICT FILING-FEE REQUIREMENT DURING CALENDAR YEAR
1972.  SINCE ENFORCEMENT OF THE FILING-FEE REQUIREMENT UNDER THE PRIOR
LAW WAS PERMANENTLY ENJOINED BY THE COURT BELOW, THAT INJUNCTION WOULD
CONTINUE TO HAVE FORCE AND EFFECT AFTER DECEMBER 31, 1972. 
FURTHERMORE, THERE IS A CONTINUING CONTROVERSY WITH RESPECT TO
APPELLEES' OBLIGATION TO PAY THE FILING FEE FOR PARTICIPATION IN THE
DEMOCRATIC PRIMARY HELD ON MAY 2, 1970.  THE ORDER OF THE DISTRICT
COURT ALLOWING APPELLEES PETE AND WISCHKAEMPER TO RUN IN THE PRIMARY
WITHOUT PAYMENT OF FEES STATED THAT THEY WOULD BE LIABLE FOR THE FEES
IF THEY DID NOT ULTIMATELY PREVAIL IN THIS ACTION.  SEE N. 3, SUPRA. 

WE TAKE NOTE OF THE FACT THAT IN JOHNSTON V. LUNA, 338 F.SUPP.  355
(ND TEX. 1972), THE SAME THREE-JUDGE COURT THAT ISSUED THE INJUNCTION
APPEALED FROM IN THIS CASE, DECLARED THE NEW LAW UNCONSTITUTIONAL AND
ENJOINED ITS ENFORCEMENT.  OUR ATTENTION IS CONFINED TO THE CASE BEFORE
US, AND WE INTIMATE NO VIEW ON THE MERITS OF THAT CONTROVERSY. 

/18/  SEE DANDRIDGE V. WILLIAMS, 397 U.S. 471, 485 (1970); MCGOWAN
V. MARYLAND, 366 U.S. 420, 425-426 (1961). 

/19/  CF. TURNER V. FOUCHE, 396 U.S. 346, 362 (1970); SNOWDEN V.
HUGHES, 321 U.S. 1 (1944). 

/20/  SEE HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663
(1966); KRAMER V. UNION FREE SCHOOL DIST. NO. 15, 395 U.S. 621 (1969);
CIPRIANO V. CITY OF HOUMA, 395 U.S. 701 (1969).     /21/  SEE REYNOLDS
V. SIMS, 377 U.S. 533, 562 (1964); WESBERRY V. SANDERS, 376 U.S. 1
(1964). 

/22/  THE TEXAS ELECTION CODE PROVIDES THAT NO PERSON SHALL BE
NOMINATED AT A PRIMARY ELECTION FOR ANY OFFICE UNLESS HE RECEIVES A
MAJORITY OF THE VOTES CAST.  IN THE EVENT THAT NO CANDIDATE RECEIVES A
MAJORITY, A RUNOFF ELECTION IS HELD BETWEEN THE TWO CANDIDATES
RECEIVING THE HIGHEST NUMBER OF VOTES.  ARTS. 13.03, 13.07, TEX.
ELECTION CODE ANN. (1967). 

/23/  CF. HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S.,AT 684-685
(HARLAN, J., DISSENTING). 

/24/  CF. TURNER V. FOUCHE, 396 U.S.,AT 364.     /25/  APPELLANTS
STATE THAT TEXAS REQUIRES ONLY THE SIGNATURES OF 1% OF THE ELIGIBLE
VOTERS.  ALTHOUGH THIS IS TRUE FOR OFFICES VOTED FOR STATEWIDE, THE
CANDIDATES FOR LOCAL OFFICES IN THIS CASE WOULD HAVE HAD TO OBTAIN THE
SIGNATURES OF 5% OF THE ELIGIBLE VOTERS UP TO A MAXIMUM OF 500
SIGNATURES.  MOREOVER, ONLY THOSE PERSONS NOT VOTING IN THE PRIMARY
WOULD HAVE BEEN ELIGIBLE TO SIGN A NOMINATING PETITION.  SEE N. 5,
SUPRA. 

/26/  SEE CARTER V. DIES, 321 F.SUPP.  1358, 1363 (ND TEX. 1970)
(THORNBERRY, J., CONCURRING). 

/27/  CF. HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S.,AT 674
(BLACK, J., DISSENTING). 

/28/  ART. 13.02, TEX. ELECTION CODE ANN. (1967). 

/29/  THIS WOULD BE A DIFFERENT CASE IF THE FEES APPROXIMATED THE
COST OF PROCESSING A CANDIDATE'S APPLICATION FOR A PLACE ON THE BALLOT,
A COST RESULTING FROM THE CANDIDATE'S DECISION TO ENTER A PRIMARY.  THE
TERM FILING FEE HAS LONG BEEN THOUGHT TO COVER THE COST OF FILING, THAT
IS, THE COST OF PLACING A PARTICULAR DOCUMENT ON THE PUBLIC RECORD. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

JOHN F. MOREHEAD, SPECIAL ASSISTANT ATTORNEY GENERAL OF TEXAS, AND
PAT BAILEY, ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE FOR
APPELLANTS.  WITH THEM ON THE BRIEF WERE CRAWFORD C. MARTIN, ATTORNEY
GENERAL, NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL, ALFRED WALKER,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, J. C. DAVIS, WILLIAM J. CRAIG,
AND W. O. SHULTZ II, ASSISTANT ATTORNEYS GENERAL, AND CHARLES F.
HERRING. 

A. L. CROUCH ARGUED THE CAUSE FOR APPELLEES WISCHKAEMPER ET AL. WITH
HIM ON THE BRIEF WAS EUGENE L. SMITH FOR APPELLEE CARTER.  JOSEPH A.
CALAMIA ARGUED THE CAUSE FOR APPELLEES PATE ET AL. WITH HIM ON THE
BRIEFS WAS JOHN L. FASHING. 
..END :




















GIGLIO V. UNITED STATES, 405 U.S. 150 


       GIGLIO V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 70-29.  ARGUED OCTOBER 12, 1971-- DECIDED FEBRUARY 24,

           1972 


PETITIONER FILED A MOTION FOR A NEW TRIAL ON THE BASIS OF NEWLY
DISCOVERED EVIDENCE CONTENDING THAT THE GOVERNMENT FAILED TO DISCLOSE
AN ALLEGED PROMISE OF LENIENCY MADE TO ITS KEY WITNESS IN RETURN FOR
HIS TESTIMONY.  AT A HEARING ON THIS MOTION, THE ASSISTANT UNITED
STATES ATTORNEY WHO PRESENTED THE CASE TO THE GRAND JURY ADMITTED THAT
HE PROMISED THE WITNESS THAT HE WOULD NOT BE PROSECUTED IF HE TESTIFIED
BEFORE THE GRAND JURY AND AT TRIAL.  THE ASSISTANT WHO TRIED THE CASE
WAS UNAWARE OF THE PROMISE.  HELD:  NEITHER THE ASSISTANT'S LACK OF
AUTHORITY NOR HIS FAILURE TO INFORM HIS SUPERIORS AND ASSOCIATES IS
CONTROLLING, AND THE PROSECUTION'S DUTY TO PRESENT ALL MATERIAL
EVIDENCE TO THE JURY WAS NOT FULFILLED AND CONSTITUTES A VIOLATION OF
DUE PROCESS REQUIRING A NEW TRIAL.  PP. 153-155. 

REVERSED AND REMANDED. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF PASSING FORGED MONEY ORDERS AND
SENTENCED TO FIVE YEARS' IMPRISONMENT.  WHILE APPEAL WAS PENDING IN THE
COURT OF APPEALS, DEFENSE COUNSEL DISCOVERED NEW EVIDENCE INDICATING
THAT THE GOVERNMENT HAD FAILED TO DISCLOSE AN ALLEGED PROMISE MADE TO
ITS KEY WITNESS THAT HE WOULD NOT BE PROSECUTED IF HE TESTIFIED FOR THE
GOVERNMENT.  WE GRANTED CERTIORARI TO DETERMINE WHETHER THE EVIDENCE
NOT DISCLOSED WAS SUCH AS TO REQUIRE A NEW TRIAL UNDER THE DUE PROCESS
CRITERIA OF NAPUE V. ILLINOIS, 360 U.S. 264 (1959), AND BRADY V.
MARYLAND, 373 U.S. 83 (1963). 

THE CONTROVERSY IN THIS CASE CENTERS AROUND THE TESTIMONY OF ROBERT
TALIENTO, PETITIONER'S ALLEGED COCONSPIRATOR IN THE OFFENSE AND THE
ONLY WITNESS LINKING PETITIONER WITH THE CRIME.  THE GOVERNMENT'S
EVIDENCE AT TRIAL SHOWED THAT IN JUNE 1966 OFFICIALS AT THE
MANUFACTURERS HANOVER TRUST CO. DISCOVERED THAT TALIENTO, AS TELLER AT
THE BANK, HAD CASHED SEVERAL FORGED MONEY ORDERS.  UPON QUESTIONING BY
FBI AGENTS, HE CONFESSED SUPPLYING PETITIONER WITH ONE OF THE BANK'S
CUSTOMER SIGNATURE CARDS USED BY GIGLIO TO FORGE $2,300 IN MONEY
ORDERS; TALIENTO THEN PROCESSED THESE MONEY ORDERS THROUGH THE REGULAR
CHANNELS OF THE BANK.  TALIENTO RELATED THIS STORY TO THE GRAND JURY
AND PETITIONER WAS INDICTED; THEREAFTER, HE WAS NAMED AS A
COCONSPIRATOR WITH PETITIONER BUT WAS NOT INDICTED. 

TRIAL COMMENCED TWO YEARS AFTER INDICTMENT.  TALIENTO TESTIFIED,
IDENTIFYING PETITIONER AS THE INSTIGATOR OF THE SCHEME.  DEFENSE
COUNSEL VIGOROUSLY CROSS-EXAMINED, SEEKING TO DISCREDIT HIS TESTIMONY
BY REVEALING POSSIBLE AGREEMENTS OR ARRANGEMENTS FOR PROSECUTORIAL
LENIENCY: 

     "(COUNSEL.) DID ANYBODY TELL YOU AT ANY TIME THAT IF YOU

  IMPLICATED SOMEBODY ELSE IN THIS CASE THAT YOU YOURSELF WOULD NOT

  BE PROSECUTED? 

    "(TALIENTO.) NOBODY TOLD ME I WOULDN'T BE PROSECUTED. 

     "Q.  THEY TOLD YOU YOU MIGHT NOT BE PROSECUTED? 

  "A.  I BELIEVE I STILL COULD BE PROSECUTED. 

.          .          .          . 

     "Q.  WERE YOU EVER ARRESTED IN THIS CASE OR CHARGED WITH

  ANYTHING IN CONNECTION WITH THESE MONEY ORDERS THAT YOU TESTIFIED

  TO? 

     "A.  NOT AT THAT PARTICULAR TIME. 

     "Q.  TO THIS DATE, HAVE YOU BEEN CHARGED WITH ANY CRIME? 

     "A.  NOT THAT I KNOW OF, UNLESS THEY ARE STILL GOING TO
PROSECUTE."  IN SUMMATION, THE GOVERNMENT ATTORNEY STATED, "(TALIENTO)
RECEIVED NO PROMISES THAT HE WOULD NOT BE INDICTED." 

THE ISSUE NOW BEFORE THE COURT AROSE ON PETITIONER'S MOTION FOR NEW
TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.  AN AFFIDAVIT FILED BY THE
GOVERNMENT AS PART OF ITS OPPOSITION TO A NEW TRIAL CONFIRMS
PETITIONER'S CLAIM THAT A PROMISE WAS MADE TO TALIENTO BY ONE
ASSISTANT, DIPAOLA, /1/  THAT IF HE TESTIFIED BEFORE THE GRAND JURY AND
AT TRIAL HE WOULD NOT BE PROSECUTED.  /2/  DIPAOLA PRESENTED THE
GOVERNMENT'S CASE TO THE GRAND JURY BUT DID NOT TRY THE CASE IN THE
DISTRICT COURT, AND GOLDEN, THE ASSISTANT WHO TOOK OVER THE CASE FOR
TRIAL, FILED AN AFFIDAVIT STATING THAT DIPAOLA ASSURED HIM BEFORE THE
TRIAL THAT NO PROMISES OF IMMUNITY HAD BEEN MADE TO TALIENTO.  /3/  THE
UNITED STATES ATTORNEY, HOEY, FILED AN AFFIDAVIT STATING THAT HE HAD
PERSONALLY CONSULTED WITH TALIENTO AND HIS ATTORNEY SHORTLY BEFORE
TRIAL TO EMPHASIZE THAT TALIENTO WOULD DEFINITELY BE PROSECUTED IF HE
DID NOT TESTIFY AND THAT IF HE DID TESTIFY HE WOULD BE OBLIGED TO RELY
ON THE "GOOD JUDGMENT AND CONSCIENCE OF THE GOVERNMENT" AS TO WHETHER
HE WOULD BE PROSECUTED.  /4/ 

THE DISTRICT COURT DID NOT UNDERTAKE TO RESOLVE THE APPARENT
CONFLICT BETWEEN THE TWO ASSISTANT UNITED STATES ATTORNEYS, DIPAOLA AND
GOLDEN, BUT PROCEEDED ON THE THEORY THAT EVEN IF A PROMISE HAD BEEN
MADE BY DIPAOLA IT WAS NOT AUTHORIZED AND ITS DISCLOSURE TO THE JURY
WOULD NOT HAVE AFFECTED ITS VERDICT.  WE NEED NOT COMCERN OURSELVES
WITH THE DIFFERING VERSIONS OF THE EVENTS AS DESCRIBED BY THE TWO
ASSISTANTS IN THEIR AFFIDAVITS.  THE HEART OF THE MATTER IS THAT ONE
ASSISTANT UNITED STATES ATTORNEY-- THE FIRST ONE WHO DEALT WITH
TALIENTO-- NOW STATES THAT HE PROMISED TALIENTO THAT HE WOULD NOT BE
PROSECUTED IF HE COOPERATED WITH THE GOVERNMENT. 

AS LONG AGO AS MOONEY V. HOLOHAN, 294 U.S. 103, 112 (1935), THIS
COURT MADE CLEAR THAT DELIBERATE DECEPTION OF A COURT AND JURORS BY THE
PRESENTATION OF KNOWN FALSE EVIDENCE IS INCOMPATIBLE WITH "RUDIMENTARY
DEMANDS OF JUSTICE."  THIS WAS REAFFIRMED IN PYLE V. KANSAS, 317 U.S.
213 (1942).  IN NAPUE V. ILLINOIS, 360 U.S. 264 (1959), WE SAID, "(THE
SAME RESULT OBTAINS WHEN THE STATE, ALTHOUGH NOT SOLICITING FALSE
EVIDENCE, ALLOWS IT TO GO UNCORRECTED WHEN IT APPEARS."  ID., AT 269. 
THEREAFTER BRADY V. MARYLAND, 373 U.S.,AT 87, HELD THAT SUPPRESSION OF
MATERIAL EVIDENCE JUSTIFIES A NEW TRIAL "IRRESPECTIVE OF THE GOOD FAITH
OR BAD FAITH OF THE PROSECUTION."  SEE AMERICAN BAR ASSOCIATION,
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION AND THE
DEFENSE FUNCTION SEC. 3.11(A).  WHEN THE "RELIABILITY OF A GIVEN
WITNESS MAY WELL BE DETERMINATIVE OF GUILT OR INNOCENCE," NONDISCLOSURE
OF EVIDENCE AFFECTING CREDIBILITY FALLS WITHIN THIS GENERAL RULE. 
NAPUE, SUPRA, AT 269.  WE DO NOT, HOWEVER, AUTOMATICALLY REQUIRE A NEW
TRIAL WHENEVER "A COMBING OF THE PROSECUTORS' FILES AFTER THE TRIAL HAS
DISCLOSED EVIDENCE POSSIBLY USEFUL TO THE DEFENSE BUT NOT LIKELY TO
HAVE CHANGED THE VERDICT . . . . "  UNITED STATES V. KEOGH, 391 F.2D
138, 148 (CA2 1968).  A FINDING OF MATERIALITY OF THE EVIDENCE IS
REQUIRED UNDER BRADY, SUPRA, AT 87.  A NEW TRIAL IS REQUIRED IF "THE
FALSE TESTIMONY COULD . . . IN ANY REASONABLE LIKELIHOOD HAVE AFFECTED
THE JUDGMENT OF THE JURY . . . . "  NAPUE, SUPRA, AT 271. 

IN THE CIRCUMSTANCES SHOWN BY THIS RECORD, NEITHER DIPAOLA'S
AUTHORITY NOR HIS FAILURE TO INFORM HIS SUPERIORS OR HIS ASSOCIATES IS
CONTROLLING.  MOREOVER, WHETHER THE NONDISCLOSURE WAS A RESULT OF
NEGLIGENCE OR DESIGN, IT IS THE RESPONSIBILITY OF THE PROSECUTOR.  THE
PROSECUTOR'S OFFICE IS AN ENTITY AND AS SUCH IT IS THE SPOKESMAN FOR
THE GOVERNMENT.  A PROMISE MADE BY ONE ATTORNEY MUST BE ATTRIBUTED, FOR
THESE PURPOSES, TO THE GOVERNMENT.  SEE RESTATEMENT (SECOND) OF AGENCY
SEC. 272.  SEE ALSO AMERICAN BAR ASSOCIATION, PROJECT ON STANDARDS FOR
CRIMINAL JUSTICE, DISCOVERY AND PROCEDURE BEFORE TRIAL SEC. 2.1(D).  TO
THE EXTENT THIS PLACES A BURDEN ON THE LARGE PROSECUTION OFFICES,
PROCEDURES AND REGULATIONS CAN BE ESTABLISHED TO CARRY THAT BURDEN AND
TO INSURE COMMUNICATION OF ALL RELEVANT INFORMATION ON EACH CASE TO
EVERY LAWYER WHO DEALS WITH IT. 

HERE THE GOVERNMENT'S CASE DEPENDED ALMOST ENTIRELY ON TALIENTO'S
TESTIMONY, WITHOUT IT THERE COULD HAVE BEEN NO INDICTMENT AND NO
EVIDENCE TO CARRY THE CASE TO THE JURY.  TALIENTO'S CREDIBILITY AS A
WITNESS WAS THEREFORE AN IMPORTANT ISSUE IN THE CASE, AND EVIDENCE OF
ANY UNDERSTANDING OR AGREEMENT AS TO A FUTURE PROSECUTION WOULD BE
RELEVANT TO HIS CREDIBILITY AND THE JURY WAS ENTITLED TO KNOW OF IT. 

FOR THESE REASONS, THE DUE PROCESS REQUIREMENTS ENUNCIATED IN NAPUE
AND THE OTHER CASES CITED EARLIER REQUIRE A NEW TRIAL, AND THE JUDGMENT
OF CONVICTION IS THEREFORE REVERSED AND THE CASE IS REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  DURING ORAL ARGUMENT IN THIS COURT IT WAS STATED THAT DIPAOLA
WAS ON THE STAFF OF THE UNITED STATES ATTORNEY WHEN HE MADE THE
AFFIDAVIT IN 1969 AND REMAINED ON THAT STAFF UNTIL RECENTLY. 

/2/  DIPAOLA'S AFFIDAVIT READS, IN PART, AS FOLLOWS: 

"IT WAS AGREED THAT IF ROBERT EDWARD TALIENTO WOULD TESTIFY BEFORE
THE GRAND JURY AS A WITNESS FOR THE GOVERNMENT, . . . HE WOULD NOT BE .
. . INDICTED.  . . . IT WAS FURTHER AGREED AND UNDERSTOOD THAT HE,
ROBERT EDWARD TALIENTO, WOULD SIGN A WAIVER OF IMMUNITY FROM
PROSECUTION BEFORE THE GRAND JURY, AND THAT IF HE EVENTUALLY TESTIFIED
AS A WITNESS FOR THE GOVERNMENT AT THE TRIAL OF THE DEFENDANT, JOHN
GIGLIO, HE WOULD NOT BE PROSECUTED." 

/3/  GOLDEN'S AFFIDAVIT READS, IN PART, AS FOLLOWS: 

"MR. DIPAOLA . . . ADVISED THAT MR. TALIENTO HAD NOT BEEN GRANTED
IMMUNITY BUT THAT HE HAD NOT INDICTED HIM BECAUSE ROBERT TALIENTO WAS
VERY YOUNG AT THE TIME OF THE ALLEGED OCCURRENCE AND OBVIOUSLY HAD BEEN
OVERREACHED BY THE DEFENDANT GIGLIO." 

/4/  THE HOEY AFFIDAVIT, STANDING ALONE, CONTAINS AT LEAST AN
IMPLICATION THAT THE GOVERNMENT WOULD REWARD THE COOPERATION OF THE
WITNESS, AND HENCE TENDS TO CONFIRM RATHER THAN REFUTE THE EXISTENCE OF
SOME UNDERSTANDING FOR LENIENCY. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

JAMES M. LA ROSSA ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

HARRY R. SACHSE ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, JEROME M. FEIT, AND BEATRICE ROSENBERG. 
..END :























PAPACHRISTOU V. CITY OF JACKSONVILLE, 405 U.S. 156 


       PAPACHRISTOU ET AL V. CITY OF JACKSONVILLE

  CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST

           DISTRICT

        NO. 70-5030.  ARGUED DECEMBER 8, 1971-- DECIDED FEBRUARY
24,

           1972 


THE JACKSONVILLE VAGRANCY ORDINANCE, UNDER WHICH PETITIONERS WERE
CONVICTED, IS VOID FOR VAGUENESS, IN THAT IT "FAILS TO GIVE A PERSON OF
ORDINARY INTELLIGENCE FAIR NOTICE THAT HIS CONTEMPLATED CONDUCT IS
FORBIDDEN BY THE STATUTE," IT ENCOURAGES ARBITRARY AND ERRATIC ARRESTS
AND CONVICTIONS, IT MAKES CRIMINAL ACTIVITIES THAT BY MODERN STANDARDS
ARE NORMALLY INNOCENT, AND IT PLACES ALMOST UNFETTERED DISCRETION IN
THE HANDS OF THE POLICE.  PP. 161-171. 

236 SO.2D 141, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES EIGHT DEFENDANTS WHO WERE CONVICTED IN A FLORIDA
MUNICIPAL COURT OF VIOLATING A JACKSONVILLE, FLORIDA, VAGRANCY
ORDINANCE.  /1/  THEIR CONVICTIONS WERE AFFIRMED BY THE FLORIDA CIRCUIT
COURT IN A CONSOLIDATED APPEAL, AND THEIR PETITION FOR CERTIORARI WAS
DENIED BY THE DISTRICT COURT OF APPEAL ON THE AUTHORITY OF JOHNSON V.
STATE, 202 SO.2D 852.  /2/  THE CASE IS HERE ON A PETITION FOR
CERTIORARI, WHICH WE GRANTED.  403 U.S. 917.  FOR REASONS WHICH WILL
APPEAR, WE REVERSE. 

AT ISSUE ARE FIVE CONSOLIDATED CASES.  MARGARET PAPACHRISTOU, BETTY
CALLOWAY, EUGENE EDDIE MELTON, AND LEONARD JOHNSON WERE ALL ARRESTED
EARLY ON A SUNDAY MORNING, AND CHARGED WITH VAGRANCY-- "PROWLING BY
AUTO." 

JIMMY LEE SMITH AND MILTON HENRY WERE CHARGED WITH VAGRANCY--
"VAGABONDS." 

HENRY EDWARD HEATH AND A CODEFENDANT WERE ARRESTED FOR VAGRANCY--
"LOITERING" AND "COMMON THIEF." 

THOMAS OWEN CAMPBELL WAS CHARGED WITH VAGRANCY-- "COMMON THIEF." 

HUGH BROWN WAS CHARGED WITH VAGRANCY-- "DISORDERLY LOITERING ON
STREET" AND "DISORDERLY CONDUCT-- RESISTING ARREST WITH VIOLENCE." 

THE FACTS ARE STIPULATED.  PAPACHRISTOU AND CALLOWAY ARE WHITE
FEMALES.  MELTON AND JOHNSON ARE BLACK MALES.  PAPACHRISTOU WAS
ENROLLED IN A JOB-TRAINING PROGRAM SPONSORED BY THE STATE EMPLOYMENT
SERVICE AT FLORIDA JUNIOR COLLEGE IN JACKSONVILLE.  SHE WAS THE OWNER
OF THE AUTOMOBILE IN WHICH THE FOUR DEFENDANTS WERE ARRESTED.  MELTON
WAS A VIETNAM WAR VETERAN WHO HAD BEEN RELEASED FROM THE NAVY AFTER
NINE MONTHS IN A VETERANS' HOSPITAL.  ON THE DATE OF HIS ARREST HE WAS
A PART-TIME COMPUTER HELPER WHILE ATTENDING COLLEGE AS A FULL-TIME
STUDENT IN JACKSONVILLE.  JOHNSON WAS A TOW-MOTOR OPERATOR IN A GROCERY
CHAIN WAREHOUSE AND WAS A LIFELONG RESIDENT OF JACKSONVILLE. 

AT THE TIME OF THEIR ARREST THE FOUR OF THEM WERE RIDING IN
CALLOWAY'S CAR ON THE MAIN THOROUGHFARE IN JACKSONVILLE.  THEY HAD LEFT
A RESTAURANT OWNED BY JOHNSON'S UNCLE WHERE THEY HAD EATEN AND WERE ON
THEIR WAY TO A NIGHTCLUB.  THE ARRESTING OFFICERS DENIED THAT THE
RACIAL MIXTURE IN THE CAR PLAYED ANY PART IN THE DECISION TO MAKE THE
ARREST.  THE ARREST, THEY SAID, WAS MADE BECAUSE THE DEFENDANTS HAD
STOPPED NEAR A USED-CAR LOT WHICH HAD BEEN BROKEN INTO SEVERAL TIMES. 
THERE WAS, HOWEVER, NO EVIDENCE OF ANY BREAKING AND ENTERING ON THE
NIGHT IN QUESTION. 

OF THESE FOUR CHARGED WITH "PROWLING BY AUTO" NONE HAD BEEN
PREVIOUSLY ARRESTED EXCEPT PAPACHRISTOU WHO HAD ONCE BEEN CONVICTED OF
A MUNICIPAL OFFENSE. 

JIMMY LEE SMITH AND MILTON HENRY (WHO IS NOT A PETITIONER) WERE
ARRESTED BETWEEN 9 AND 10 A.M. ON A WEEKDAY IN DOWNTOWN JACKSONVILLE,
WHILE WAITING FOR A FRIEND WHO WAS TO LEND THEM A CAR SO THEY COULD
APPLY FOR A JOB AT A PRODUCE COMPANY.  SMITH WAS A PART-TIME PRODUCE
WORKER AND PART-TIME ORGANIZER FOR A NEGRO POLITICAL GROUP.  HE HAD A
COMMON-LAW WIFE AND THREE CHILDREN SUPPORTED BY HIM AND HIS WIFE.  HE
HAD BEEN ARRESTED SEVERAL TIMES BUT CONVICTED ONLY ONCE.  SMITH'S
COMPANION, HENRY, WAS AN 18-YEAR-OLD HIGH SCHOOL STUDENT WITH NO
PREVIOUS RECORD OF ARREST. 

THIS MORNING IT WAS COLD, AND SMITH HAD NO JACKET, SO THEY WENT
BRIEFLY INTO A DRY CLEANING SHOP TO WAIT, BUT LEFT WHEN REQUESTED TO DO
SO.  THEY THEREAFTER WALKED BACK AND FORTH TWO OR THREE TIMES OVER A
TWO-BLOCK STRETCH LOOKING FOR THEIR FRIEND.  THE STORE OWNERS, WHO
APPARENTLY WERE WARY OF SMITH AND HIS COMPANION, SUMMONED TWO POLICE
OFFICERS WHO SEARCHED THE MEN AND FOUND NEITHER HAD A WEAPON.  BUT THEY
WERE ARRESTED BECAUSE THE OFFICERS SAID THEY HAD NO IDENTIFICATION AND
BECAUSE THE OFFICERS DID NOT BELIEVE THEIR STORY. 

HEATH AND A CODEFENDANT WERE ARRESTED FOR "LOITERING" AND FOR
"COMMON THIEF."  BOTH WERE RESIDENTS OF JACKSONVILLE, HEATH HAVING
LIVED THERE ALL HIS LIFE AND BEING EMPLOYED AT AN AUTOMOBILE BODY
SHOP.  HEATH HAD PREVIOUSLY BEEN ARRESTED BUT HIS CODEFENDANT HAD NO
ARREST RECORD.  HEATH AND HIS COMPANION WERE ARRESTED WHEN THEY DROVE
UP TO A RESIDENCE SHARED BY HEATH'S GIRL FRIEND AND SOME OTHER GIRLS. 
SOME POLICE OFFICERS WERE ALREADY THERE IN THE PROCESS OF ARRESTING
ANOTHER MAN.  WHEN HEATH AND HIS COMPANION STARTED BACKING OUT OF THE
DRIVEWAY, THE OFFICERS SIGNALED TO THEM TO STOP AND ASKED THEM TO GET
OF THE CAR, WHICH THEY DID.  THEREUPON THEY AND THE AUTOMOBILE WERE
SEARCHED.  ALTHOUGH NO CONTRABAND OR INCRIMINATING EVIDENCE WAS FOUND,
THEY WERE BOTH ARRESTED, HEATH BEING CHARGED WITH BEING A "COMMON
THIEF" BECAUSE HE WAS REPUTED TO BE A THIEF.  THE CODEFENDANT WAS
CHARGED WITH "LOITERING" BECAUSE HE WAS STANDING IN THE DRIVEWAY, AN
ACT WHICH THE OFFICERS ADMITTED WAS DONE ONLY AT THEIR COMMAND. 

CAMPBELL WAS ARRESTED AS HE REACHED HIS HOME VERY EARLY ONE MORNING
AND WAS CHARGED WITH "COMMON THIEF."  HE WAS STOPPED BY OFFICERS
BECAUSE HE WAS TRAVELING AT A HIGH RATE OF SPEED, YET NO SPEEDING
CHARGE WAS PLACED AGAINST HIM. 

BROWN WAS ARRESTED WHEN HE WAS OBSERVED LEAVING A DOWNTOWN
JACKSONVILLE HOTEL BY A POLICE OFFICER SEATED IN A CRUISER.  THE POLICE
TESTIFIED HE WAS REPUTED TO BE A THIEF, NARCOTICS PUSHER, AND GENERALLY
OPPROBRIOUS CHARACTER.  THE OFFICER CALLED BROWN OVER TO THE CAR,
INTENDING AT THAT TIME TO ARREST HIM UNLESS HE HAD A GOOD EXPLANATION
FOR BEING ON THE STREET.  BROWN WALKED OVER TO THE POLICE CRUISER, AS
COMMANDED, AND THE OFFICER BEGAN TO SEARCH HIM, APPARENTLY PREPARATORY
TO PLACING HIM IN THE CAR.  IN THE PROCESS OF THE SEARCH HE CAME ON TWO
SMALL PACKETS WHICH WERE LATER FOUND TO CONTAIN HEROIN.  WHEN THE
OFFICER TOUCHED THE POCKET WHERE THE PACKETS WERE, BROWN BEGAN TO
RESIST.  HE WAS CHARGED WITH "DISORDERLY LOITERING ON STREET" AND
"DISORDERLY CONDUCT-- RESISTING ARREST WITH VIOLENCE."  WHILE HE WAS
ALSO CHARGED WITH A NARCOTICS VIOLATION, THAT CHARGE WAS NOLLED. 

JACKSONVILLE'S ORDINANCE AND FLORIDA'S STATUTE WERE "DERIVED FROM
EARLY ENGLISH LAW," JOHNSON V. STATE, 202 SO.2D,AT 854, AND EMPLOY
"ARCHAIC LANGUAGE" IN THEIR DEFINITIONS OF VAGRANTS.  ID., AT 855.  THE
HISTORY IS AN OFTENTOLD TALE.  THE BREAKUP OF FEUDAL ESTATES IN ENGLAND
LED TO LABOR SHORTAGES WHICH IN TURN RESULTED IN THE STATUTES OF
LABORERS, /3/  DESIGNED TO STABILIZE THE LABOR FORCE MOVEMENT OF
WORKERS FROM THEIR HOME AREAS IN SEARCH OF IMPROVED CONDITIONS.  LATER
VAGRANCY LAWS BECAME CRIMINAL ASPECTS OF THE POOR LAWS.  THE SERIES OF
LAWS PASSED IN ENGLAND ON THE SUBJECT BECAME INCREASINGLY SEVERE.  /4/
BUT "THE THEORY OF THE ELIZABETHAN POOR LAWS NO LONGER FITS THE FACTS,"
EDWARDS V. CALIFORNIA, 314 U.S. 160, 174.  THE CONDITIONS WHICH
SPAWNED THESE LAWS MAY BE GONE, BUT THE ARCHAIC CLASSIFICATIONS
REMAIN. 

THIS ORDINANCE IS VOID FOR VAGUENESS, BOTH IN THE SENSE THAT IT
"FAILS TO GIVE A PERSON OF ORDINARY INTELLIGENCE FAIR NOTICE THAT HIS
CONTEMPLATED CONDUCT IS FORBIDDEN BY THE STATUTE," UNITED STATES V.
HARRISS, 347 U.S. 612, 617, AND BECAUSE IT ENCOURAGES ARBITRARY AND
ERRATIC ARRESTS AND CONVICTIONS.  THORNHILL V. ALABAMA, 310 U.S. 88;
HERNDON V. LOWRY, 301 U.S. 242. 

LIVING UNDER A RULE OF LAW ENTAILS VARIOUS SUPPOSITIONS, ONE OF
WHICH IS THAT "(ALL PERSONS) ARE ENTITLED TO BE INFORMED AS TO WHAT THE
STATE COMMANDS OR FORBIDS."  LANZETTA V. NEW JERSEY, 306 U.S. 451,
453. 

LANZETTA IS ONE OF A WELL-RECOGNIZED GROUP OF CASES INSISTING THAT
THE LAW GIVE FAIR NOTICE TO THE OFFENDING CONDUCT.  SEE CONNALLY V.
GENERAL CONSTRUCTION CO., 269 U.S. 385, 391; CLINE V. FRINK DAIRY CO.,
274 U.S. 445; UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81.  IN THE
FIELD OF REGULATORY STATUTES GOVERNING BUSINESS ACTIVITIES, WHERE THE
ACTS LIMITED ARE IN A NARROW CATEGORY, GREATER LEEWAY IS ALLOWED. 
BOYCE MOTOR LINES, INC. V. UNITED STATES, 342 U.S. 337; UNITED STATES
V. NATIONAL DAIRY PRODUCTS CORP., 372 U.S. 29; UNITED STATES V.
PETRILLO, 332 U.S. 1. 

THE POOR AMONG US, THE MINORITIES, THE AVERAGE HOUSEHOLDER ARE NOT
IN BUSINESS AND NOT ALERTED TO THE REGULATORY SCHEMES OF VAGRANCY LAWS;
AND WE ASSUME THEY WOULD HAVE NO UNDERSTANDING OF THEIR MEANING AND
IMPACT IF THEY READ THEM.  NOR ARE THEY PROTECTED FROM BEING CAUGHT IN
THE VAGRANCY NET BY THE NECESSITY OF HAVING A SPECIFIC INTENT TO COMMIT
AN UNLAWFUL ACT.  SEE SCREWS V. UNITED STATES, 325 U.S. 91; BOYCE MOTOR
LINES, INC., V. UNITED STATES, SUPRA. 

THE JACKSONVILLE ORDINANCE MAKES CRIMINAL ACTIVITIES WHICH BY MODERN
STANDARDS ARE NORMALLY INNOCENT.  "NIGHTWALKING" IS ONE.  FLORIDA
CONSTRUES THE ORDINANCE NOT TO MAKE CRIMINAL ONE NIGHT'S WANDERING,
JOHNSON V. STATE, 202 SO.2D, AT 855, ONLY THE "HABITUAL" WANDERER OR,
AS THE ORDINANCE DESCRIBES IT, "COMMON NIGHT WALKERS."  WE KNOW,
HOWEVER, FROM EXPERIENCE THAT SLEEPLESS PEOPLE OFTEN WALK AT NIGHT,
PERHAPS HOPEFUL THAT SLEEP-INDUCING RELAXATION WILL RESULT. 

LUIS MUNOZ-MARIN, A FORMER GOVERNOR OF PUERTO RICE, COMMENTED ONCE
THAT "LOAFING" WAS A NATIONAL VIRTUE IN HIS COMMONWEALTH AND THAT IT
SHOULD BE ENCOURAGED.  IT IS, HOWEVER, A CRIME IN JACKSONVILLE. 

"(PERSONS ABLE TO WORK BUT HABITUALLY LIVING UPON THE EARNINGS OF
THEIR WIVES OR MINOR CHILDREN"-- LIKE HABITUALLY LIVING "WITHOUT
VISIBLE MEANS OF SUPPORT"-- MIGHT IMPLICATE UNEMPLOYED PILLARS OF THE
COMMUNITY WHO HAVE MARRIED RICH WIVES. 

"(PERSONS ABLE TO WORK BUT HABITUALLY LIVING UPON THE EARNINGS OF
THEIR WIVES OR MINOR CHILDREN" MAY ALSO EMBRACE UNEMPLOYED PEOPLE OUT
OF THE LABOR MARKET, BY REASON OF A RECESSION /5/  OR DISEMPLOYED BY
REASON OF TECHNOLOGICAL OR SO-CALLED STRUCTURAL DISPLACEMENTS. 

PERSONS "WANDERING OR STROLLING" FROM PLACE TO PLACE HAVE BEEN
EXTOLLED BY WALT WHITMAN AND VACHEL LINDSAY.  /6/  THE QUALIFICATION
"WITHOUT ANY LAWFUL PURPOSE OR OBJECT" MAY BE A TRAP FOR INNOCENT
ACTS.  PERSONS "NEGLECTING ALL LAWFUL BUSINESS AND HABITUALLY SPENDING
THEIR TIME BY FREQUENTING . . . PLACES WHERE ALCOHOLIC BEVERAGES ARE
SOLD OR SERVED" WOULD LITERALLY EMBRACE MANY MEMBERS OF GOLF CLUBS AND
CITY CLUBS. 

WALKERS AND STROLLERS AND WANDERERS MAY BE GOING TO OR COMING FROM A
BURGLARY.  LOAFERS OR LOITERERS MAY BE "CASING" A PLACE FOR A HOLDUP. 
LETTING ONE'S WIFE SUPPORT HIM IS AN INTRA-FAMILY MATTER, AND NORMALLY
OF NO CONCERN TO THE POLICE.  YET IT MAY, OF COURSE, BE THE SETTING FOR
NUMEROUS CRIMES. 

THE DIFFICULTY IS THAT THESE ACTIVITIES ARE HISTORICALLY PART OF THE
AMENITIES OF LIFE AS WE HAVE KNOWN THEM.  THEY ARE NOT MENTIONED IN THE
CONSTITUTION OR IN THE BILL OF RIGHTS.  THESE UNWRITTEN AMENITIES HAVE
BEEN IN PART RESPONSIBLE FOR GIVING OUR PEOPLE THE FEELING OF
INDEPENDENCE AND SELF-CONFIDENCE, THE FEELING OF CREATIVITY.  THESE
AMENITIES HAVE DIGNIFIED THE RIGHT OF DISSENT AND HAVE HONORED THE
RIGHT TO BE NONCONFORMISTS AND THE RIGHT TO DEFY SUBMISSIVENESS.  THEY
HAVE ENCOURAGED LIVES OF HIGH SPIRITS RATHER THAN HUSHED, SUFFOCATING
SILENCE. 

THEY ARE EMBEDDED IN WALT WITMAN'S WRITINGS, ESPECIALLY IN HIS "SONG
OF THE OPEN ROAD."  THEY ARE REFLECTED, TOO, IN THE SPIRIT OF VACHEL
LINDSAY'S "I WANT TO GO WANDERING."  AND BY HENRY D. THOREAU.  /7/ 

THIS ASPECT OF THE VAGRANCY ORDINANCE BEFORE US IS SUGGESTED BY WHAT
THIS COURT SAID IN 1876 ABOUT A BROAD CRIMINAL STATUTE ENACTED BY
CONGRESS:  "IT WOULD CERTAINLY BE DANGEROUS IF THE LEGISLATURE COULD
SET A NET LARGE ENOUGH TO CATCH ALL POSSIBLE OFFENDERS, AND LEAVE IT TO
THE COURTS TO STEP INSIDE AND SAY WHO COULD BE RIGHTFULLY DETAINED, AND
WHO SHOULD BE SET AT LARGE."  UNITED STATES V. REESE, 92 U.S. 214,
221. 

WHILE THAT WAS A FEDERAL CASE, THE DUE PROCESS IMPLICATIONS ARE
EQUALLY APPLICABLE TO THE STATES AND TO THIS VAGRANCY ORDINANCE.  HERE
THE NET CAST IS LARGE, NOT TO GIVE THE COURTS THE POWER TO PICK AND
CHOOSE BUT TO INCREASE THE ARSENAL OF THE POLICE.  IN WINTERS V. NEW
YORK, 333 U.S. 507, THE COURT STRUCK DOWN A NEW YORK STATUTE THAT MADE
CRIMINAL THE DISTRIBUTION OF A MAGAZINE MADE UP PRINCIPALLY OF ITEMS OF
CRIMINAL DEEDS OF BLOODSHED OR LUST SO MASSED AS TO BECOME VEHICLES FOR
INCITING VIOLENT AND DEPRAVED CRIMES AGAINST THE PERSON.  THE INFIRMITY
THE COURT FOUND WAS VAGUENESS-- THE ABSENCE OF "ASCERTAINABLE STANDARDS
OF GUILT" (ID., AT 515) IN THE SENSITIVE FIRST AMENDMENT AREA.  /8/
MR. JUSTICE FRANKFURTER DISSENTED.  BUT CONCERNED AS HE, AND MANY
OTHERS, /9/  HAVE BEEN OVER THE VAGRANCY LAWS, HE ADDED: 

     "ONLY A WORD NEEDS TO BE SAID REGARDING LANZETTA V. NEW
JERSEY,

  306 U.S. 451.  THE CASE INVOLVED A NEW JERSEY STATUTE OF THE TYPE

  THAT SEEK TO CONTROLL 'VAGRANCY.'  THESE STATUTES ARE IN A CLASS

BY THEMSELVES, IN VIEW OF THE FAMILIAR ABUSES TO WHICH THEY ARE

  PUT.  . .  .  DEFINITENESS IS DESIGNEDLY AVOIDED SO AS TO ALLOW

  THE NET TO BE CAST AT LARGE, TO ENABLE MEN TO BE CAUGHT WHO ARE

  VAGUELY UNDESIRABLE IN THE EYES OF POLICE AND PROSECUTION,

  ALTHOUGH NOT CHARGEABLE WITH ANY PARTICULAR OFFENSE.  IN SHORT,

  THESE 'VAGRANCY STATUTES' AND LAWS AGAINST 'GANGS' ARE NOT FENCED

  IN BY THE TEXT OF THE STATUTE OR BY THE SUBJECT MATTER SO AS TO

  GIVE NOTICE OF CONDUCT TO BE AVOIDED."  ID., AT 540. 

WHERE THE LIST OF CRIMES IS SO ALL-INCLUSIVE AND GENERALIZED /10/
AS THE ONE IN THIS ORDINANCE, THOSE CONVICTED MAY BE PUNISHED FOR NO
MORE THAN VINDICATING AFFRONTS TO POLICE AUTHORITY:     "THE COMMON
GROUND WHICH BRINGS SUCH A MOTLEY ASSORTMENT OF HUMAN TROUBLES BEFORE
THE MAGISTRATES IN VAGRANCY-TYPE PROCEEDINGS IS THE PROCEDURAL LAXITY
WHICH PERMITS 'CONVICTION' FOR ALMOST ANY KIND OF CONDUCT AND THE
EXISTENCE OF THE HOUSE OF CORRECTION AS AN EASY AND CONVENIENT DUMPING
GROUND FOR PROBLEMS THAT APPEAR TO HAVE NO OTHER IMMEDIATE SOLUTION." 
FOOTE, VAGRANCY-TYPE LAW AND ITS ADMINISTRATION, 104 U.PA.L.REV.  603,
631.  /11/ 

ANOTHER ASPECT OF THE ORDINANCE'S VAGUENESS APPEARS WHEN WE FOCUS,
NOT ON THE LACK OF NOTICE GIVEN A POTENTIAL OFFENDER, BUT ON THE EFFECT
OF THE UNFETTERED DISCRETION IT PLACES IN THE HANDS OF THE JACKSONVILLE
POLICE.  CALEB FOOTE, AN EARLY STUDENT OF THIS SUBJECT, HAS CALLED THE
VAGRANCY-TYPE LAW AS OFFERING "PUNISHMENT BY ANALOGY."  ID., AT 609. 
SUCH CRIMES, THOUGH LONG COMMON IN RUSSIA, /12/  ARE NOT COMPATIBLE
WITH OUR CONSTITUTIONAL SYSTEM.  WE ALLOW OUR POLICE TO MAKE ARRESTS
ONLY ON "PROBABLE CAUSE,"  /13/  A FOURTH AND FOURTEENTH AMENDMENT
STANDARD APPLICABLE TO THE STATES /14/  AS WELL AS TO THE FEDERAL
GOVERNMENT.  ARRESTING A PERSON ON SUSPICION, LIKE ARRESTING A PERSON
FOR INVESTIGATION, IS FOREIGN IN OUR SYSTEM, EVEN WHEN THE ARREST IS
FOR PAST CRIMINALITY.  FUTURE CRIMINALITY, HOWEVER, IS THE COMMON
JUSTIFICATION FOR THE PRESENCE OF VAGRANCY STATUTES.  SEE FOOTE, SUPRA,
AT 625.  FLORIDA HAS, INDEED, CONSTRUED HER VAGRANCY STATUTE "AS
NECESSARY REGULATIONS," INTER ALIA, "TO DETER VAGABONDAGE AND PREVENT
CRIMES."  JOHNSON V. STATE, 202 SO.2D 852; SMITH V. STATE, 239 SO.2D
250, 251. 

A DIRECTION BY A LEGISLATURE TO THE POLICE TO ARREST ALL
"SUSPICIOUS" PERSONS /15/  WOULD NOT PASS CONSTITUTIONAL MUSTER.  A
VAGRANCY PROSECUTION MAY BE MERELY THE CLOAK FOR A CONVICTION WHICH
COULD NOT BE OBTAINED ON THE REAL BUT UNDISCLOSED GROUNDS FOR ARREST. 
PEOPLE V. MOSS, 309 N.Y. 429, 131 N.E.2D 717.  BUT AS CHIEF JUSTICE
HEWART SAID IN FREDERICK DEAN, 18 CRIM.APP.  133, 134 (1924): 

"IT WOULD BE IN THE HIGHEST DEGREE UNFORTUNATE IF IN ANY PART OF THE
COUNTRY THOSE WHO ARE RESPONSIBLE FOR SETTING IN MOTION THE CRIMINAL
LAW SHOULD ENTERTAIN, CONNIVE AT OR COQUETTE WITH THE IDEA THAT IN A
CASE WHERE THERE IS NOT ENOUGH EVIDENCE TO CHARGE THE PRISONER WITH AN
ATTEMPT TO COMMIT A CRIME, THE PROSECUTION MAY, NEVERTHELESS, ON SUCH
INSUFFICIENT EVIDENCE, SUCCEED IN OBTAINING AND UPHOLDING A CONVICTION
UNDER THE VAGRANCY ACT, 1824." 

THOSE GENERALLY IMPLICATED BY THE IMPRECISE TERMS OF THE ORDINANCE--
POOR PEOPLE, NONCONFORMISTS, DISSENTERS, IDLERS-- MAY BE REQUIRED TO
COMPORT THEMSELVES ACCORDING TO THE LIFESTYLE DEEMED APPROPRIATE BY THE
JACKSONVILLE POLICE AND THE COURTS.  WHERE, AS HERE, THERE ARE NO
STANDARDS GOVERNING THE EXERCISE OF THE DISCRETION GRANTED BY THE
ORDINANCE, THE SCHEME PERMITS AND ENCOURAGES AN ARBITRARY AND
DISCRIMINATORY ENFORCEMENT OF THE LAW.  IT FURNISHES A CONVENIENT TOOL
FOR "HARSH AND DISCRIMINATORY ENFORCEMENT BY LOCAL PROSECUTING
OFFICIALS, AGAINST PARTICULAR GROUPS DEEMED TO MERIT THEIR
DISPLEASURE."  THORNHILL V. ALABAMA, 310 U.S. 88, 97-98.  IT RESULTS IN
A REGIME IN WHICH THE POOR AND THE UNPOPULAR ARE PERMITTED TO "STAND ON
A PUBLIC SIDEWALK . . . ONLY AT THE WHIM OF ANY POLICE OFFICER." 
SHUTTLESWORTH V. BIRMINGHAM, 382 U.S. 87, 90.  UNDER THIS ORDINANCE, 

"(IF SOME CAREFREE TYPE OF FELLOW IS SATISFIED TO WORK JUST SO MUCH,
AND NO MORE, AS WILL PAY FOR ONE SQUARE MEAL, SOME WINE, AND A
FLOPHOUSE DAILY, BUT A COURT THINKS THIS KIND OF LIVING SUBHUMAN, THE
FELLOW CAN BE FORCED TO RAISE HIS SIGHTS OR TO GO TO JAIL AS A
VAGRANT."  AMSTERDAM, FEDERAL CONSTITUTIONAL RESTRICTIONS ON THE
PUNISHMENT OF CRIMES OF STATUS, CRIMES OF GENERAL OBNOXIOUSNESS, CRIMES
OF DISPLEASING POLICE OFFICERS, AND THE LIKE, 3 CRIM.L.BULL.  205, 226
(1967). 

A PRESUMPTION THAT PEOPLE WHO MIGHT WALK OR LOAF OR LOITER OR STROLL
OR FREQUENT HOUSES WHERE LIQUOR IS SOLD, OR WHO ARE SUPPORTED BY THEIR
WIVES OR WHO LOOK SUSPICIOUS TO THE POLICE ARE TO BECOME FUTURE
CRIMINALS IS TOO PRECARIOUS FOR A RULE OF LAW.  THE IMPLICIT
PRESUMPTION IN THESE GENERALIZED VAGRANCY STANDARDS-- THAT CRIME IS
BEING NIPPED IN THE BUD-- IS TOO EXTRAVAGANT TO DESERVE EXTENDED
TREATMENT.  OF COURSE, VAGRANCY STATUTES ARE USEFUL TO THE POLICE.  OF
COURSE, THEY ARE NETS MAKING EASY THE ROUNDUP OF SO-CALLED
UNDESIRABLES.  BUT THE RULE OF LAW IMPLIES EQUALITY AND JUSTICE IN ITS
APPLICATION.  VAGRANCY LAWS OF THE JACKSONVILLE TYPE TEACH THAT THE
SCALES OF JUSTICE ARE SO TIPPED THAT EVEN-HANDED ADMINISTRATION OF THE
LAW IS NOT POSSIBLE.  THE RULE OF LAW, EVENLY APPLIED TO MINORITIES AS
WELL AS MAJORITIES, TO THE POOR AS WELL AS THE RICH, IS THE GREAT
MUCILAGE THAT HOLDS SOCIETY TOGETHER. 

THE JACKSONVILLE ORDINANCE CANNOT BE SQUARED WITH OUR CONSTITUTIONAL
STANDARDS AND IS PLAINLY UNCONSTITUTIONAL. 

              REVERSED. 

/1/  JACKSONVILLE ORDINANCE CODE SEC. 26-57 PROVIDED AT THE TIME OF
THESE ARRESTS AND CONVICTIONS AS FOLLOWS: 

"ROGUES AND VAGABONDS, OR DISSOLUTE PERSONS WHO GO ABOUT BEGGING,
COMMON GAMBLERS, PERSONS WHO USE JUGGLING OR UNLAWFUL GAMES OR PLAYS,
COMMON DRUNKARDS, COMMON NIGHT WALKERS, THIEVES, PILFERERS OR
PICKPOCKETS, TRADERS IN STOLEN PROPERTY, LEWD, WANTON AND LASCIVIOUS
PERSONS, KEEPERS OF GAMBLING PLACES, COMMON RAILERS AND BRAWLERS,
PERSONS WANDERING OR STROLLING AROUND FROM PLACE TO PLACE WITHOUT ANY
LAWFUL PURPOSE OR OBJECT, HABITUAL LOAFERS, DISORDERLY PERSONS, PERSONS
NEGLECTING ALL LAWFUL BUSINESS AND HABITUALLY SPENDING THEIR TIME BY
FREQUENTING HOUSES OF ILL FAME, GAMING HOUSES, OR PLACES WHERE
ALCOHOLIC BEVERAGES ARE SOLD OR SERVED, PERSONS ABLE TO WORK BUT
HABITUALLY LIVING UPON THE EARNINGS OF THEIR WIVES OR MINOR CHILDREN
SHALL BE DEEMED VAGRANTS AND, UPON CONVICTION IN THE MUNICIPAL COURT
SHALL BE PUNISHED AS PROVIDED FOR CLASS D OFFENSES." 

CLASS D OFFENSES AT THE TIME OF THESE ARRESTS AND CONVICTIONS WERE
PUNISHABLE BY 90 DAYS' IMPROSONMENT, $500 FINE, OR BOTH.  JACKSONVILLE
ORDINANCE CODE SEC. 1-8 (1965).  THE MAXIMUM PUNISHMENT HAS SINCE BEEN
REDUCED TO 75 DAYS OR $450.  SEC. 304.101 (1971).  WE ARE ADVISED THAT
THAT DOWNWARD REVISION WAS MADE TO AVOID FEDERAL RIGHT-TO-COUNSEL
DECISIONS.  THE FIFTH CIRCUIT CASE EXTENDING RIGHT TO COUNSEL IN
MISDEMEANORS WHERE A FINE OF $500 OR 90 DAYS' IMPRISONMENT COULD BE
IMPOSED IS HARVEY V. MISSISSIPPI, 340 F.2D 263 (1965). 

WE ARE ADVISED THAT AT PRESENT THE JACKSONVILLE VAGRANCY ORDINANCE
IS SEC. 330.107 AND IDENTICAL WITH THE EARLIER ONE EXCEPT THAT
"JUGGLING" HAS BEEN ELIMINATED. 

/2/  FLORIDA ALSO HAS A VAGRANCY STATUTE, FLA. STAT. SEC. 856.02
(1965), WHICH READS QUITE CLOSELY ON THE JACKSONVILLE ORDINANCE. 
JACKSONVILLE ORDINANCE CODE SEC. 27-43 MAKES THE COMMISSION OF ANY
FLORIDA MISDEMEANOR A CLASS D OFFENSE AGAINST THE CITY OF
JACKSONVILLE.  IN 1971 FLORIDA MADE MINOR AMENDMENTS TO ITS STATUTE. 
SEE LAWS 1971, C. 71-132. 

V. FAIRCLOTH, 301 F.SUPP.  266.  THE COURT SAID:  "ALL LOITERING,
LOAFING, OR IDLING ON THE STREETS AND HIGHWAYS OF A CITY, EVEN THOUGH
HABITUAL, IS NOT NECESSARILY DETRIMENTAL TO THE PUBLIC WELFARE NOR IS
IT UNDER ALL CIRCUMSTANCES AN INTERFERENCE WITH TRAVEL UPON THEM.  IT
MAY BE AND OFTEN IS ENTIRELY INNOCUOUS.  THE STATUTE DRAWS NO
DISTINCTION BETWEEN CONDUCT THAT IS CALCULATED TO HARM AND THAT WHICH
IS ESSENTIALLY INNOCENT."  ID., AT 272, QUOTING HAWAII V. ANDUHA, 48
F.2D 171, 172.  SEE ALSO SMITH V. FLORIDA, POST, P. 172. 

THE FLORIDA DISORDERLY CONDUCT ORDINANCE, COVERING "LOITERING ABOUT
ANY HOTEL, BLOCK, BARROOM, DRAMSHOP, GAMBLING HOUSE OR DISORDERLY
HOUSE, OR WANDERING ABOUT THE STREETS EITHER BY NIGHT OR BY DAY WITHOUT
ANY KNOWN LAWFUL MEANS OF SUPPORT, OR WITHOUT BEING ABLE TO GIVE A
SATISFACTORY ACCOUNT OF THEMSELVES" HAS ALSO BEEN HELD VOID FOR
"EXCESSIVE BROADNESS AND VAGUENESS" BY THE FLORIDA SUPREME COURT,
HEADLEY V. SELKOWITZ, 171 SO.2D 368, 370. 

/3/  23 EDW.  3, C. 1 (1349); 25 EDW.  3, C. 1 (1350). 

/4/  SEE 3 J.STEPHEN, HOSTORY OF THE CRIMINAL LAW OF ENGLAND 203
206, 266-275:  4 W.BLACKSTONE, COMMENTARIES *169; 

LEDWITH V. ROBERTS, (1937) 1 K.B. 232, 271, GIVES THE FOLLOWING
SUMMARY: 

"THE EARLY VAGRANCY ACTS CAME INTO BEING UNDER PECULIAR CONDITIONS
UTTERLY DIFFERENT TO THOSE OF THE PRESENT TIME.  FROM THE TIME OF THE
BLACK DEATH IN THE MIDDLE OF THE 14TH CENTURY TILL THE MIDDLE OF THE
17TH CENTURY, AND INDEED, ALTHOUGH IN DIMINISHING DEGREE, RIGHT DOWN TO
THE REFORM OF THE POOR LAW IN THE FIRST HALF OF THE 19TH CENTURY, THE
ROADS OF ENGLAND WERE CROWDED WITH MASTERLESS MEN AND THEIR FAMILIES,
WHO HAD LOST THEIR FORMER EMPLOYMENT THROUGH A VARIETY OF CAUSES, HAD
NO MEANS OF LIVELIHOOD AND HAD TAKEN TO A VAGRANT LIFE.  THE MAIN
CAUSES WERE THE GRADUAL DECAY OF THE FEUDAL SYSTEM UNDER WHICH THE
LABOURING CLASSES HAD BEEN ANCHORED TO THE SOIL, THE ECONOMIC
SLACKENING OF THE LEGAL COMPULSION TO WORK FOR FIXED WAGES, THE BREAK
UP OF THE MONASTERIES IN THE REIGN OF HENRY VIII, AND THE CONSEQUENT
DISAPPEARANCE OF THE RELIGIOUS ORDERS WHICH HAD PREVIOUSLY ADMINISTERED
A KIND OF 'PUBLIC ASSISTANCE' IN THE FORM OF LODGING, FOOD AND ALMS;
AND, LASTLY, THE ECONOMIC CHANGES BROUGHT ABOUT BY THE ENCLOSURE ACTS. 
SOME OF THESE PEOPLE WERE HONEST LABOURERS WHO HAD FALLEN UPON EVIL
DAYS, OTHERS WERE THE 'WILD ROGUES,' SO COMMON IN ELIZABETHAN TIMES AND
LITERATURE, WHO HAD BEEN BORN TO A LIFE OF IDLENESS AND HAD NO
INTENTION OF FOLLOWING ANY OTHER.  IT WAS THEY AND THEIR CONFEDERATES
WHO FORMED THEMSELVES INTO THE NOTORIOUS 'BROTHERHOOD OF BEGGARS' WHICH
FLOURISHED IN THE 16TH AND 17TH CENTURIES.  THEY WERE A DEFINITE AND
SERIOUS MENACE TO THE COMMUNITY AND IT WAS CHIEFLY AGAINST THEM AND
THEIR KIND THAT THE HARSHER PROVISIONS OF THE VAGRANCY LAWS OF THE
PERIOD WERE DIRECTED." 

AND SEE SHERRY, VAGRANTS, ROGUES AND VAGABONDS-- OLD CONCEPTS IN
NEED OF REVISION, 48 CALIF.L.REV.  557, 560-561 (1960); NOTE, THE
VAGRANCY CONCEPT RECONSIDERED:  PROBLEMS AND ABUSES OF STATUS
CRIMINALITY, 37 N.Y.U.L.REV.  102 (1962). 

/5/  IN EDWARDS V. CALIFORNIA, 314 U.S. 160, 177, IN REFERRING TO
CITY OF NEW YORK V. MILN, 11 PET. 102, 142, DECIDED IN 1837, WE SAID:
"WHATEVER MAY HAVE BEEN THE NOTION THEN PREVAILING, WE DO NOT THINK IT
WILL NOW BE SERIOUSLY CONTENDED THAT BECAUSE A PERSON IS WITHOUT
EMPLOYMENT AND WITHOUT FUNDS HE CONSTITUTES A 'MORAL PESTILENCE.' 
POVERTY AND IMMORALITY ARE NOT SYNONYMOUS." 

/6/  AND SEE REICH, POLICE QUESTIONING OF LAW ABIDING CITIZENS, 75
YALE L.J. 1161, 1172 (1966):  "IF I CHOOSE TO TAKE AN EVENING WALK TO
SEE IF ANDROMEDA HAS COME UP ON SCHEDULE, I THINK I AM ENTITLED TO LOOK
FOR THE DISTANT LIGHT OF ALMACH AND MIRACH WITHOUT FINDING MYSELF
STARING INTO THE BLINDING BEAM OF A POLICE FLASHLIGHT." 

/7/  "I HAVE MET WITH BUT ONE OR TWO PERSONS IN THE COURSE OF MY
LIFE WHO UNDERSTOOD THE ART OF WALKING, THAT IS, OF TAKING WALKS,-- WHO
HAD A GENIUS, SO TO SPEAK, FOR SAUNTERING:  WHICH WORD IS BEAUTIFULLY
DERIVED 'FROM IDLE PEOPLE WHO ROVED ABOUT THE COUNTRY, IN THE MIDDLE
AGES, AND ASKED CHARITY, UNDER PRETENCE OF GOING A LA SAINTE TERRE,' TO
THE HOLY LAND, TILL THE CHILDREN EXCLAIMED, 'THERE GOES A SAINTE
TERRER,' A SAUNTERER, A HOLY-LANDER.  THEY WHO NEVER GO TO THE HOLY
LAND IN THEIR WALKS, AS THEY PRETEND, ARE INDEED MERE IDLERS AND
VAGABONDS; BUT THEY WHO DO GO THERE ARE SAUNTERERS IN THE GOOD SENSE,
SUCH AS I MEAN.  SOME, HOWEVER, WOULD DERIVE THE WORD FROM SANS TERRE,
WITHOUT LAND OR A HOME, WHICH, THEREFORE, IN THE GOOD SENSE, WILL MEAN,
HAVING NO PARTICULAR HOME, BUT EQUALLY AT HOME EVERYWHERE.  FOR THIS IS
THE SECRET OF SUCCESSFUL SAUNTERING.  HE WHO SITS STILL IN A HOUSE ALL
THE TIME MAY BE THE GREATEST VAGRANT OF ALL; BUT THE SAUNTERER, IN THE
GOOD SENSE, IS NO MORE VAGRANT THAN THE MEANDERING RIVER, WHICH IS ALL
THE WHILE SEDULOUSLY SEEKING THE SHORTEST COURSE TO THE SEA.  BUT I
PREFER THE FIRST, WHICH, INDEED, IS THE MOST PORBABLE DERIVATION.  FOR
EVERY WALK IS A SORT OF CRUSADE, PREACHED BY SOME PETER THE HERMIT IN
US, TO GO FORTH AND RECONQUER THIS HOLY LAND FROM THE HANDS OF THE
INFIDELS."  EXCURSIONS 251-252 (1893). 

/8/  FOR A DISCUSSION OF THE VOID-FOR-VAGUENESS DOCTRINE IN THE AREA
OF FUNDAMENTAL RIGHTS SEE NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN THE
SUPREME COURT, 109 U.PA.L.REV.  67, 104 ET SEQ.; AMSTERDAM, FEDERAL
CONSTITUTIONAL RESTRICTIONS ON THE PUNISHMENT OF CRIMES OF STATUS,
CRIMES OF GENERAL OBNOXIOUSNESS, CRIMES OF DISPLEASING POLICE OFFICERS,
AND THE LIKE, 3 CRIM.L.BULL.  205, 224 ET SEQ. (1967). 

/9/  SEE EDELMAN V. CALIFORNIA, 344 U.S. 357, 362 (BLACK, J.,
DISSENTING); HICKS V. DISTRICT OF COLUMBIA, 383 U.S. 252 (DOUGLAS, J.,
DISSENTING); DISTRICT OF COLUMBIA V. HUNT, 82 U.S.APP.D.C. 159, 163
F.2D 833 (JUDGE STEPHENS WRITING FOR A MAJORITY OF THE COURT OF
APPEALS); JUDGE RUDKIN FOR THE COURT IN HAWAII V. ANDUHA, 48 F.2D 171. 

THE OPPOSING VIEWS ARE NUMEROUS:  EX PARTE BRANCH, 234 MO. 466, 137
S.W. 886; H.R. REP. NO. 1248, 77TH CONG., 1ST SESS., 2; PERKINS, THE
VAGRANCY CONCEPT, 9 HASTINGS L.J. 237 (1958); PEOPLE V. CRAIG, 152 CAL.
42, 91 P. 997. 

/10/  PRESIDENT ROOSEVELT, IN VETOING A VAGRANCY LAW FOR THE
DISTRICT OF COLUMBIA, SAID: 

"THE BILL CONTAINS MANY PROVISIONS THAT CONSTITUTE AN IMPROVEMENT
OVER EXISTING LAW.  UNFORTUNATELY, HOWEVER, THERE ARE TWO PROVISIONS IN
THE BILL THAT APPEAR OBJECTIONABLE. 

"SECTION 1 OF THE BILL CONTAINS A NUMBER OF CLAUSES DEFINING A
'VAGRANT.'  CLAUSE 6 OF THIS SECTION WOULD INCLUDE WITHIN THAT CATEGORY
'ANY ABLE-BODIED PERSON WHO LIVES IN IDLENESS UPON THE WAGES, EARNINGS,
OR PROPERTY OF ANY PERSON HAVING NO LEGAL OBLIGATION TO SUPPORT HIM.' 
THIS DEFINITION IS SO BROADLY AND LOOSELY DRAWN THAT IN MANY CASES IT
WOULD MAKE A VAGRANT OF AN ADULT DAUGHTER OR SON OF A WELL-TO-DO FAMILY
WHO, THOUGH AMPLY PROVIDED FOR AND NOT GUILTY OF ANY IMPROPER OR
UNLAWFUL CONDUCT, HAS NO OCCUPATION AND IS DEPENDENT UPON PARENTAL
SUPPORT.     "UNDER CLAUSE 9 OF SAID SECTION 'ANY PERSON LEADING AN
IDLE LIFE . . . AND NOT GIVING A GOOD ACCOUNT OF HIMSELF' WOULD INCUR
GUILT AND LIABILITY TO PUNISHMENT UNLESS HE COULD PROVE, AS REQUIRED BY
OCCUPATION OR SOURCE.  WHAT CONSTITUTES 'LEADING AN IDLE LIFE' AND 'NOT
GIVING A GOOD ACCOUNT OF ONESELF' IS NOT INDICATED BY THE STATUTE BUT
IS LEFT TO THE DETERMINATION IN THE FIRST PLACE OF A POLICE OFFICER AND
EVENTUALLY OF A JUDGE OF THE POLICE COURT, SUBJECT TO FURTHER REVIEW IN
PROPER CASES.  WHILE THIS PHRASEOLOGY MAY BE SUITABLE FOR GENERAL
PURPOSES AS A DEFINITION OF A VAGRANT, IT DOES NOT CONFORM WITH
ACCEPTED STANDARDS OF LEGISLATIVE PRACTICE AS A DEFINITION OF A
CRIMINAL OFFENSE.  I AM NOT WILLING TO AGREE THAT A PERSON WITHOUT
LAWFUL MEANS OF SUPPORT, TEMPORARILY OR OTHERWISE, SHOULD BE SUBJECT TO
THE RISK OF ARREST AND PUNISHMENT UNDER PROVISIONS AS INDEFINITE AND
UNCERTAIN IN THEIR MEANING AND APPLICATION AS THOSE EMPLOYED IN THIS
CLAUSE. 

"IT WOULD HARDLY BE A SATISFACTORY ANSWER TO SAY THAT THE SOUND
JUDGMENT AND DECISIONS OF THE POLICE AND PROSECUTING OFFICERS MUST BE
TRUSTED TO INVOKE THE LAW ONLY IN PROPER CASES.  THE LAW ITSELF SHOULD
BE SO DRAWN AS NOT TO MAKE IT APPLICABLE TO CASES WHICH OBVIOUSLY
SHOULD NOT BE COMPRISED WITHIN ITS TERMS."  H.R. DOC. NO. 392, 77TH
CONG., 1ST SESS. 

/11/  THUS, "PROWLING BY AUTO", WHICH FORMED THE BASIS FOR THE
VAGRANCY ARRESTS AND CONVICTIONS OF FOUR OF THE PETITIONERS HEREIN, IS
NOT EVEN LISTED IN THE ORDINANCE AS A CRIME.  BUT SEE HANKS V. STATE,
195 SO.2D 49, 51, IN WHICH THE FLORIDA DISTRICT COURT OF APPEAL
CONSTRUED "WANDERING OR STROLLING FROM PLACE TO PLACE" AS INCLUDING
TRAVEL BY AUTOMOBILE. 

/12/  J. HAZARD, THE SOVIET LEGAL SYSTEM 133 (1962): 

"THE 1922 CODE WAS A STEP IN THE DIRECTION OF PRECISION IN
DEFINITION OF CRIME, BUT IT WAS NOT A COMPLETE DEPARTURE FROM THE
CONCEPT OF PUNISHMENT IN ACCORDANCE WITH THE DICTATES OF THE SOCIAL
CONSCIOUSNESS OF THE JUDGE.  LAYING HOLD OF AN OLD TSARIST CODE
PROVISION THAT HAD BEEN IN EFFECT FROM 1864 TO 1903 KNOWN BY THE TERM
'ANALOGY,' THE SOVIET DRAFTSMEN INSERTED AN ARTICLE PERMITTING A JUDGE
TO CONSIDER THE SOCIAL DANGER OF AN INDIVIDUAL EVEN WHEN HE HAD
COMMITTED NO ACT DEFINED AS A CRIME IN THE SPECIALIZED PART OF THE
CODE.  HE WAS TO BE GUIDED BY ANALOGIZING THE DANGEROUS ACT TO SOME ACT
DEFINED AS CRIME, BUT AT THE OUTSET THE ANALOGIES WERE NOT ALWAYS
APPARENT, AS WHEN A HUSBAND WAS EXECUTED FOR THE SADISTIC MURDER OF A
WIFE, FOLLOWED BY DISSECTION OF HER TORSO AND SHIPMENT IN A TRUNK TO A
REMOTE RAILWAY STATION, THE COURT ARGUING THAT THE CRIME WAS ANALOGOUS
TO BANDITRY.  AT THE TIME OF THIS DECISION THE CODE PERMITTED THE DEATH
PENALTY FOR BANDITRY BUT NOT FOR MURDER WITHOUT POLITICAL MOTIVES OR
VERY SERIOUS SOCIAL CONSEQUENCES." 

"ON THE TRADITIONALLY IMPORTANT SUBJECT OF CRIMINAL LAW, ALGERIA IS
REJECTING THE FLEXIBILITY INTRODUCED IN THE SOVIET CRIMINAL CODE BY THE
'ANALOGY' PRINCIPLE, AS HAVE THE EAST-CENTRAL EUROPEAN AND BLACK
AFRICAN STATES."  HAZARD, THE RESIDUE OF MARXIST INFLUENCE IN ALGERIA,
9 COLUM.J.OF TRANSNAT'L L. 194, 224 (1970). 

/13/ JOHNSON V. UNITED STATES, 333 U.S. 10, 15-17. 

/14/  WHITELEY V. WARDEN, 401 U.S. 560. 

/15/  ON ARRESTS FOR INVESTIGATION, SEE SECRET DETENTION BY THE
CHICAGO POLICE, A REPORT BY THE AMERICAN CIVIL LIBERTIES UNION (1959). 
THE TABLE BELOW CONTAINS NATIONWIDE DATA ON ARRESTS FOR "VAGRANCY" AND
FOR "SUSPICION" IN THE THREE-YEAR PERIOD 1968-1970.  (TABLE OMITTED) 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

SAMUEL S. JACOBSON ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONERS. 

T. EDWARD AUSTIN, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE JAMES C. RINAMAN, JR., AND J. EDWARD WALL. 
..END :










SMITH V. FLORIDA, 405 U.S. 172 


       SMITH ET AL. V. FLORIDA

        CERTIORARI TO THE SUPREME COURT OF FLORIDA

        NO. 70-5055.  ARGUED DECEMBER 8, 1971-- DECIDED FEBRUARY
24,

           1972 


PETITIONERS' CONVICTIONS FOR VIOLATION OF THE FLORIDA VAGRANCY
STATUTE FOR "WANDERING OR STROLLING AROUND FROM PLACE TO PLACE WITHOUT
ANY LAWFUL PURPOSE OR OBJECT" ARE VACATED AND THE CASE IS REMANDED FOR
RECONSIDERATION IN LIGHT OF PAPACHRISTOU V. CITY OF JACKSONVILLE, ANTE,
P. 156.  PP. 172-173. 

239 SO.2D 250, VACATED AND REMANDED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
JUSTICES JOINED, EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

FLORIDA'S VAGRANCY STATUTE /1/  INCLUDES IN THE TERM "VAGRANTS,"  WHO
CAN BE CRIMINALLY CHARGED AND CONVICTED, "PERSONS WANDERING OR
STROLLING AROUND FROM PLACE TO PLACE WITHOUT ANY LAWFUL PURPOSE OR
OBJECT."  /2/  THE DEFENDANTS WERE SO CHARGED AND PLEADED NOT GUILTY,
WAIVED TRIAL BY JURY, AND WERE TRIED BY A JUDGE, WHO DENIED A MOTION TO
DISMISS.  THE FLORIDA SUPREME COURT AFFIRMED, TWO JUDGES DISSENTING. 
239 SO.2D 250.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED.  403 U.S. 917. 

WE HAVE THIS DAY DECIDED PAPACHRISTOU V. CITY OF JACKSONVILLE, ANTE,
P. 156.  WE THEREFORE VACATE AND REMAND THE JUDGMENT IN THE INSTANT
CASE FOR RECONSIDERATION IN LIGHT OF PAPACHRISTOU. 

              SO ORDERED. 

/1/  FLA. STAT. SEC. 856.02 (1965).  SEE PAPACHRISTOU V. CITY OF
JACKSONVILLE, DECIDED THIS DAY, ANTE, AT 157 N. 2. 

/2/  SEC. 856.02. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

PHILLIP A. HUBBART ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONERS. 

NELSON E. BAILEY, ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED THE
CAUSE FOR RESPONDENT PRO HAC VICE.  WITH HIM ON THE BRIEF WAS ROBERT L.
SHEVIN, ATTORNEY GENERAL. 
..END :



















D. H. OVERMYER CO. V. FRICK CO., 405 U.S. 174 


       D. H. OVERMYER CO., INC., OF OHIO ET AL. V. FRICK CO.

        CERTIORARI TO THE COURT OF APPEALS OF OHIO, LUCAS COUNTY

        NO. 69-5.  ARGUED NOVEMBER 9, 1971-- DECIDED FEBRUARY 24,

           1972 


AFTER A CORPORATION (OVERMYER) HAD DEFAULTED IN THE PAYMENTS FOR
EQUIPMENT MANUFACTURED AND BEING INSTALLED BY RESPONDENT COMPANY
(FRICK), AND OVERMYER UNDER A POST-CONTRACT ARRANGEMENT HAD MADE A
PARTIAL CASH PAYMENT AND ISSUED AN INSTALLMENT NOTE FOR THE BALANCE,
FRICK COMPLETED THE WORK, WHICH OVERMYER ACCEPTED AS SATISFACTORY. 
THEREAFTER OVERMYER AGAIN ASKED FOR RELIEF AND, WITH COUNSEL FOR BOTH
CORPORATIONS PARTICIPATING IN THE NEGOTIATIONS, THE FIRST NOTE WAS
REPLACED WITH A SECOND, WHICH CONTAINED A "COGNOVIT" PROVISION IN
CONFORMITY WITH OHIO LAW AT THAT TIME WHEREBY OVERMYER CONSENTED IN
ADVANCE, SHOULD IT DEFAULT IN INTEREST OR PRINCIPAL PAYMENTS, TO
FRICK'S OBTAINING A JUDGMENT WITHOUT NOTICE OR HEARING, AND ISSUED
CERTAIN SECOND MORTGAGES IN FRICK'S FAVOR, FRICK AGREEING TO RELEASE
THREE MECHANIC'S LIENS, TO REDUCE THE MONTHLY PAYMENT AMOUNTS AND
INTEREST RATE, AND TO EXTEND THE TIME FOR FINAL PAYMENT.  WHEN
OVERMYER, CLAIMING A CONTRACT BREACH, STOPPED MAKING PAYMENTS ON THE
NEW NOTE, FRICK, UNDER THE COGNOVIT PROVISION, THROUGH AN ATTORNEY
UNKNOWN TO BUT ON BEHALF OF OVERMYER, AND WITHOUT PERSONAL SERVICES ON
OR PRIOR NOTICE TO OVERMYER, CAUSED JUDGMENT TO BE ENTERED ON THE
NOTE.  OVERMYER'S MOTION TO VACATE THE JUDGMENT WAS OVERRULED AFTER A
POST-JUDGMENT HEARING, AND THE JUDGMENT COURT'S DECISION WAS AFFIRMED
ON APPEAL AGAINST OVERMYER'S CONTENTION THAT THE COGNOVIT PROCEDURE
VIOLATED DUE PROCESS REQUIREMENTS.  HELD:  OVERMYER, FOR CONSIDERATION
AND WITH FULL AWARENESS OF THE LEGAL CONSEQUENCES, WAIVED ITS RIGHTS TO
PREJUDGMENT NOTICE AND HEARING, AND ON THE FACTS OF THIS CASE, WHICH
INVOLVED CONTRACTUAL ARRANGEMENTS BETWEEN TWO CORPORATIONS ACTING WITH
ADVICE OF COUNSEL, THE PROCEDURE UNDER THE COGNOVIT CLAUSE (WHICH IS
NOT UNCONSTITUTIONAL PER SE) DID NOT VIOLATE OVERMYER'S FOURTEENTH
AMENDMENT RIGHTS.  PP. 182-188. 

AFFIRMED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL MEMBERS
JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE.  DOUGLAS, J., FILED A CONCURRING
OPINION, IN WHICH MARSHALL, J., JOINED, POST, P. 188. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE ISSUE OF THE CONSTITUTIONALITY, UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, OF THE COGNOVIT NOTE
AUTHORIZED BY OHIO REV. CODE SEC. 2323.13.  /1/ 

THE COGNOVIT IS THE ANCIENT LEGAL DEVICE BY WHICH THE DEBTOR CONSENTS
IN ADVANCE TO THE HOLDER'S OBTAINING A JUDGMENT WITHOUT NOTICE OR
HEARING, AND POSSIBLY EVEN WITH THE APPEARANCE, ON THE DEBTOR'S BEHALF,
OF AN ATTORNEY DESIGNATED BY THE HOLDER.  /2/  IT WAS KNOWN AT LEAST AS
FAR BACK AS BLACKSTONE'S TIME.  3 W.BLACKSTONE, COMMENTARIES *397.  /3/
IN A CASE APPLYING OHIO LAW, IT WAS SAID THAT THE PURPOSE OF THE
COGNOVIT IS "TO PERMIT THE NOTE HOLDER TO OBTAIN JUDGMENT WITHOUT A
TRIAL OF POSSIBLE DEFENSES WHICH THE SIGNERS OF THE NOTES MIGHT
ASSERT."  HADDEN V. RUMSEY PRODUCTS, INC., 196 F.2D 92, 96 (CA2 1952). 
AND LONG AGO THE COGNOVIT METHOD WAS DESCRIBED BY THE CHIEF JUSTICE OF
NEW JERSEY AS "THE LOOSEST WAY OF BINDING A MAN'S PROPERTY THAT EVER
WAS DEVISED IN ANY CIVILIZED COUNTRY."  ALDERMAN V. DIAMENT, 7 N.J.L.
197, 198 (1824).  MR. DICKENS NOTED IT WITH OBVIOUS DISFAVOR.  PICKWICK
PAPERS, C. 47.  THE COGNOVIT HAS BEEN THE SUBJECT OF COMMENT, MUCH OF
IT CRITICAL.  /4/ 

STATUTORY TREATMENT VARIES WIDELY.  SOME STATES SPECIFICALLY
AUTHORIZE THE COGNOVIT.  /5/  OTHERS DISALLOW IT.  /6/  SOME GO SO FAR
AS TO MAKE ITS EMPLOYMENT A MISDEMEANOR.  /7/  THE MAJORITY, HOWEVER,
REGULATE ITS USE AND MANY PROHIBIT THE DEVICE IN SMALL LOANS AND
CONSUMER SALES.  /8/ 

IN OHIO THE COGNOVIT HAS LONG BEEN RECOGNIZED BY BOTH STATUTE AND
COURT DECISION.  1 CHASE'S STATUTES, C. 243, SEC. 34 (1810); OSBORN V.
HAWLEY, 19 OHIO 130 (1850); MARSDEN V. SOPER, 11 OHIO ST. 503 (1860);
WATSON V. PAINE, 25 OHIO ST. 340 (1874); CLEMENTS V. HULL, 35 OHIO ST.
141 (1878).  THE STATE'S COURTS, HOWEVER, GIVE THE INSTRUMENT A STRICT
AND LIMITED CONSTRUCTION.  SEE PEOPLES BANKING CO. V. BRUMFIELD HAY &
GRAIN CO., 172 OHIO ST. 545, 548, 179 N.E.2D 53, 55 (1961). 

THIS COURT APPARENTLY HAS DECIDED ONLY TWO CASES CONCERNING COGNOVIT
NOTES, AND BOTH HAVE COME HERE IN A FULL FAITH AND CREDIT CONTEXT. 
NATIONAL EXCHANGE BANK V. WILEY, 195 U.S. 257 (1904); GROVER & BAKER
SEWING MACHINE CO. V. RADCLIFFE, 137 U.S. 287 (1890).  SEE AMERICAN
SURETY CO. V. BALDWIN, 287 U.S. 156 (1932). 

        I 

THE ARGUMENT THAT A PROVISION OF THIS KIND IS OFFENSIVE TO CURRENT
NOTIONS OF FOURTEENTH AMENDMENT DUE PROCESS IS, AT FIRST GLANCE, AN
APPEALING ONE.  HOWEVER, HERE, AS IN NEARLY EVERY CASE, FACTS ARE
IMPORTANT.  WE STATE THEM CHRONOLOGICALLY: 

1.  PETITIONERS D. H. OVERMYER CO., INC., OF OHIO, AND D. H.
OVERMYER CO., INC., OF KENTUCKY, ARE SEGMENTS OF A WAREHOUSING
ENTERPRISE THAT COUNSEL AT ONE POINT IN THE LITIGATION DESCRIBED AS
HAVING BUILT "IN THREE YEARS . . . 180 WAREHOUSES IN THIRTY STATES." 
THE CORPORATE STRUCTURE IS COMPLEX.  BECAUSE THE IDENTITY AND
INDIVIDUALITY OF THE RESPECTIVE CORPORATE ENTITIES ARE NOT RELEVANT
HERE, WE REFER TO THE ENTERPRISE IN THE AGGREGATE AS "OVERMYER." 

2.  IN 1966 A CORPORATION, WHICH THEN WAS OR AT A LATER DATE BECAME
AN OVERMYER AFFILIATE, EXECUTED A CONTRACT WITH THE RESPONDENT FRICK
CO. FOR THE MANUFACTURE AND INSTALLATION BY FRICK, AT A COST OF
$223,000, OF AN AUTOMATIC REFRIGERATION SYSTEM IN A WAREHOUSE UNDER
CONSTRUCTION IN TOLEDO, OHIO. 

3.  OVERMYER FELL BEHIND IN THE PROGRESS PAYMENTS DUE FROM IT UNDER
THE CONTRACT.  BY THE END OF SEPTEMBER 1966 APPROXIMATELY $120,000 WAS
OVERDUE.  BECAUSE OF THIS DELINQUENCY, FRICK STOPPED ITS WORK ON
OCTOBER 10.  FRICK INDICATED TO OVERMYER, HOWEVER, BY LETTER ON THAT
DATE, ITS WILLINGNESS TO ACCEPT AN OFFER FROM OVERMYER TO PAY $35,000
IN CASH "PROVIDED THE BALANCE CAN BE EVIDENCED BY INTEREST-BEARING
JUDGMENT NOTES." 

4.  ON NOVEMBER 3 FRICK FILED THREE MECHANIC'S LIENS AGAINST THE
TOLEDO PROPERTY FOR A TOTAL OF $194,031, THE AMOUNT OF THE CONTRACT
PRICE ALLEGEDLY UNPAID AT THAT TIME. 

5.  THE PARTIES CONTINUED TO NEGOTIATE.  IN JANUARY 1967 FRICK, IN
ACCOMMODATION, AGREED TO COMPLETE THE WORK UPON AN IMMEDIATE CASH
PAYMENT OF 10% ($19,403.10) AND PAYMENT OF THE BALANCE OF $174,627.90
IN 12 EQUAL MONTHLY INSTALLMENTS WITH 6 1/2% INTEREST PER ANNUM.  ON
FEBRUARY 17 OVERMYER MADE THE 10% PAYMENT AND EXECUTED AN INSTALLMENT
NOTE CALLING FOR 12 MONTHLY PAYMENTS OF $15,498.23 EACH BEGINNING MARCH
1, 1967.  THIS NOTE CONTAINED NO CONFESSION-OF-JUDGMENT PROVISION.  IT
RECITED THAT IT DID NOT OPERATE AS A WAIVER OF THE MECHANIC'S LIENS,
BUT IT ALSO STATED THAT FRICK WOULD FORGO ENFORCEMENT OF THOSE LIEN
RIGHTS SO LONG AS THERE WAS NO DEFAULT UNDER THE NOTE. 

6.  FRICK RESUMED ITS WORK, COMPLETED IT, AND SENT OVERMYER A NOTICE
OF COMPLETION.  ON MARCH 17 OVERMYER'S VICE PRESIDENT ACKNOWLEDGED IN
WRITING THAT THE SYSTEM HAD BEEN "COMPLETED IN A SATISFACTORY MANNER"
AND THAT IT WAS "ACCEPTED AS PER THE CONTRACT CONDITIONS." 

7.  SUBSEQUENTLY, OVERMYER REQUESTED ADDITIONAL TIME TO MAKE THE
INSTALLMENT PAYMENTS.  IT ALSO ASKED THAT FRICK RELEASE THE MECHANIC'S
LIENS AGAINST THE TOLEDO PROPERTY.  NEGOTIATIONS BETWEEN THE PARTIES AT
THAT TIME FINALLY RESULTED IN AN AGREEMENT IN JUNE 1967 THAT (A)
OVERMYER WOULD EXECUTE A NEW NOTE FOR THE THEN-OUTSTANDING BALANCE OF
$130,997 AND CALLING FOR PAYMENT OF THAT AMOUNT IN 21 EQUAL MONTHLY
INSTALLMENTS OF $6,891.85 EACH, BEGINNING JUNE 1, 1967, AND ENDINING IN
FEBRUARY 1969, TWO YEARS AFTER FRICK'S COMPLETION OF THE WORK (AS
CONTRASTED WITH THE $15,498.23 MONTHLY INSTALLMENTS ENDING FEBRUARY
1968 SPECIFIED BY THE FIRST NOTE); (B) THE INTEREST RATE WOULD BE 6%
RATHER THAN 6 1/2%; (C) FRICK WOULD RELEASE THE THREE MECHANIC'S LIENS;
(D) OVERMYER WOULD EXECUTE SECOND MORTGAGES, WITH FRICK AS MORTGAGEE,
ON PROPERTY IN TAMPA AND LOUISVILLE; AND (E) OVERMYER'S NEW NOTE WOULD
CONTAIN A CONFESSION-OF-JUDGMENT CLAUSE.  THE NEW NOTE, SIGNED IN OHIO
BY THE TWO PETITIONERS HERE, WAS DELIVERED TO FRICK SOME MONTHS LATER
BY LETTER DATED OCTOBER 2, 1967, ACCOMPANIED BY FIVE CHECKS FOR THE
JUNE THROUGH OCTOBER PAYMENTS.  THIS LETTER WAS FROM OVERMYER'S GENERAL
COUNSEL TO FRICK'S COUNSEL.  THE SECOND MORTGAGES WERE EXECUTED AND
RECORDED, AND THE MECHANIC'S LIENS WERE RELEASED.  THE NOTE CONTAINED
THE FOLLOWING JUDGMENT CLAUSE: 

"THE UNDERSIGNED HEREBY AUTHORIZE ANY ATTORNEY DESIGNATED BY THE
HOLDER HEREOF TO APPEAR IN ANY COURT OF RECORD IN THE STATE OF OHIO,
AND WAIVE THIS ISSUANCE AND SERVE OF PROCESS, AND CONFESS A JUDGMENT
AGAINST THE UNDERSIGNED IN FAVOR OF THE HOLDER OF THIS NOTE, FOR THE
PRINCIPAL OF THIS NOTE PLUS INTEREST IF THE UNDERSIGNED DEFAULTS IN ANY
PAYMENT OF PRINCIPAL AND INTEREST AND IF SAID DEFAULT SHALL CONTINUE
FOR THE PERIOD OF FIFTEEN (15) DAYS." 

8.  ON JUNE 1, 1968, OVERMYER CEASED MAKING THE MONTHLY PAYMENTS
UNDER THE NEW NOTE AND, ASSERTING A BREACH BY FRICK OF THE ORIGINAL
CONTRACT, PROCEEDED TO INSTITUTE A DIVERSITY ACTION AGAINST FRICK IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK.  OVERMYER SOUGHT DAMAGES IN EXCESS OF $170,000 AND A STAY OF ALL
PROCEEDINGS BY FRICK UNDER THE NOTE.  ON JULY 5 JUDGE FRANKEL VACATED
AN EX PARTE STAY HE HAD THERETOFORE GRANTED.  ON AUGUST 7 JUDGE
MANSFIELD DENIED OVERMYER'S MOTION FOR REINSTATEMENT OF THE STAY.  HE
CONCLUDED, "PLAINTIFF HAS FAILED TO SHOW ANY LIKELIHOOD THAT IT WILL
PREVAIL UPON THE MERITS.  ON THE CONTRARY, EXTENSIVE DOCUMENTARY
EVIDENCE FURNISHED BY DEFENDANT INDICATES THAT THE PLAINTIFF'S ACTION
LACKS MERIT." 

9.  ON JULY 12, WITHOUT PRIOR NOTICE TO OVERMYER, FRICK CAUSED
JUDGMENT TO BE ENTERED AGAINST OVERMYER (SPECIFICALLY AGAINST THE TWO
PETITIONERS HERE) IN THE COMMON PLEAS COURT OF LUCAS COUNTY, OHIO.  THE
JUDGMENT AMOUNT WAS THE BALANCE THEN REMAINING ON THE NOTE, NAMELY,
$62,370, PLUS INTEREST FROM MAY 1, 1968, AND COSTS.  THIS JUDGMENT WAS
EFFECTED THROUGH THE APPEARANCE OF AN OHIO ATTORNEY ON BEHALF OF THE
DEFENDANTS (PETITIONERS HERE) IN THAT OHIO ACTION.  HIS APPEARANCE WAS
"BY VIRTUE OF THE WARRANT OF ATTORNEY" IN THE SECOND NOTE.  THE LAWYER
WAIVED THE ISSUANCE AND SERVICE OF PROCESS AND CONFESSED THE JUDGMENT. 
THIS ATTORNEY WAS NOT KNOWN TO OVERMYER, HAD NOT BEEN RETAINED BY
OVERMYER, AND HAD NOT COMMUNICATED WITH THE PETITIONERS PRIOR TO THE
ENTRY OF THE JUDGMENT. 

10.  AS REQUIRED BY OHIO REV. CODE SEC. 2323.13(C), THE CLERK OF THE
STATE COURT, ON JULY 16, MAILED NOTICES OF THE ENTRY OF THE JUDGMENT ON
THE COGNOVIT NOTE TO OVERMYER AT ADDRESSES IN NEW YORK, OHIO, AND
KENTUCKY. 

11.  ON JULY 22 OVERMYER, BY COUNSEL, FILED IN THE OHIO COURT
MOTIONS TO STAY EXECUTION AND FOR A NEW TRIAL.  THE LATTER MOTION
REFERRED TO "(IRREGULARITY IN THE PROCEEDINGS OF THE PREVAILING PARTY
AND OF THE COURT . . . . "  ON AUGUST 6, OVERMYER FILED A MOTION TO
VACATE JUDGMENT AND TENDERED AN ANSWER AND COUNTERCLAIM ALLEGING BREACH
OF CONTRACT BY FRICK, AND DAMAGES.  A HEARING WAS HELD.  BOTH SIDES
SUBMITTED AFFIDAVITS.  THOSE SUBMITTED BY OVERMYER ASSERTED LACK OF
NOTICE BEFORE JUDGMENT AND ALLEGED A BREACH OF CONTRACT BY FRICK.  A
COPY OF JUDGE MANSFIELD'S FINDINGS, CONCLUSIONS, AND OPINION WAS PLACED
IN THE RECORD.  ON NOVEMBER 16 THE COURT OVERRULED EACH MOTION. 

12.  OVERMYER APPEALED TO THE COURT OF APPEALS FOR LUCAS COUNTY,
OHIO, SPECIFICALLY ASSERTING DEPRIVATION OF DUE PROCESS VIOLATIVE OF
THE OHIO AND FEDERAL CONSTITUTIONS.  THAT COURT AFFIRMED WITH A BRIEF
JOURNAL ENTRY. 

13.  THE SUPREME COURT OF OHIO "SUA SPONTE DISMISSED) THE APPEAL FOR
THE REASON THAT NO SUBSTANTIAL CONSTITUTIONAL QUESTION EXISTS HEREIN." 

WE GRANTED CERTIORARI.  401 U.S. 992 (1971). 

II 

THIS CHRONOLOGY CLEARLY REVEALS THAT OVERMYER'S SITUATION, OF WHICH
IT NOW COMPLAINS, IS ONE BROUGHT ABOUT LARGELY BY ITS OWN MISFORTUNE
AND FAILURE OR INABILITY TO PAY.  THE INITIAL AGREEMENT BETWEEN
OVERMYER AND FRICK WAS A ROUTINE CONSTRUCTION SUBCONTRACT.  FRICK
AGREED TO DO THE WORK AND OVERMYER AGREED TO PAY A DESIGNATED AMOUNT
FOR THAT WORK BY PROGRESS PAYMENTS AT SPECIFIED TIMES.  THIS CONTRACT
WAS NOT ACCOMPANIED BY ANY PROMISSORY NOTE. 

OVERMYER THEN BECAME DELINQUENT IN ITS PAYMENTS.  FRICK NATURALLY
REFRAINED FROM FURTHER WORK.  THIS IMPASSE WAS RESOLVED BY THE FEBRUARY
1967 POST-CONTRACT ARRANGEMENT, PURSUANT TO WHICH OVERMYER MADE AN
IMMEDIATE PARTIAL PAYMENT IN CASH AND ISSUED ITS INSTALLMENT NOTE FOR
THE BALANCE.  ALTHOUGH FRICK HAD SUGGESTED A CONFESSION-OF-JUDGMENT
CLAUSE, THE NOTE AS EXECUTED AND DELIVERED CONTAINED NO PROVISION OF
THAT KIND. 

FRICK COMPLETED ITS WORK AND OVERMYER ACCEPTED THE WORK AS
SATISFACTORY.  THEREAFTER OVERMYER AGAIN ASKED FOR RELIEF.  AT THIS
TIME COUNSEL FOR EACH SIDE PARTICIPATED IN THE NEGOTIATIONS.  THE FIRST
NOTE WAS REPLACED BY THE SECOND.  THE LATTER CONTAINED THE CONFESSION
OF-JUDGMENT PROVISION OVERMYER NOW FINDS SO OFFENSIVE.  HOWEVER, IN
EXCHANGE FOR THAT PROVISION AND FOR ITS EXECUTION OF THE SECOND
MORTGAGES, OVERMYER RECEIVED BENEFIT AND CONSIDERATION IN THE FORM OF
(A) FRICK'S RELEASE OF THE THREE MECHANIC'S LIENS, (B) REDUCTION OF THE
AMOUNT OF THE MONTHLY PAYMENT, (C) FURTHER TIME IN WHICH THE TOTAL
AMOUNT WAS TO BE PAID, AND (D) REDUCTION OF A HALF POINT IN THE
INTEREST RATE. 

WERE WE CONCERNED HERE ONLY WITH THE VALIDITY OF THE JUNE 1967
AGREEMENT UNDER PRINCIPLES OF CONTRACT LAW, THAT ISSUES WOULD BE
READILY RESOLVED.  OBVIOUSLY AND UNDENIABLY, OVERMYER'S EXECUTION AND
DELIVERY OF THE SECOND NOTE WERE FOR AN ADEQUATE CONSIDERATION AND WERE
THE PRODUCT OF NEGOTIATIONS CARRIED ON BY CORPORATE PARTIES WITH THE
ADVICE OF COMPETENT COUNSEL. 

MORE THAN MERE CONTRACT LAW, HOWEVER, IS INVOLVED HERE. 

        III 

PETITIONER OVERMYER FIRST ASSERTS THAT THE OHIO JUDGMENT IS INVALID
BECAUSE THERE WAS NO PERSONAL SERVICE UPON IT, NO VOLUNTARY APPEARANCE
BY IT IN OHIO, AND NO GENUINE APPEARANCE BY AN ATTORNEY ON ITS BEHALF. 
THUS, IT IS SAID, THERE WAS NO PERSONAL JURISDICTION OVER OVERMYER IN
THE OHIO PROCEEDING.  THE PETITIONER INVOKES PENNOYER V. NEFF, 95 U.S.
714, 732 (1878), AND OTHER CASES DECIDED HERE AND BY THE OHIO COURTS
ENUNCIATING ACCEPTED AND LONG-ESTABLISHED PRINCIPLES FOR IN PERSONAM
JURISDICTION.  MCDONALD V. MABEE, 243 U.S. 90, 91 (1917); VANDERBILT V.
VANDERBILT, 354 U.S. 416, 418 (1957); SEARS V. WEIMER, 143 OHIO ST.
312, 55 N.E.2D 413 (1944); RAILROAD CO. V. GOODMAN, 57 OHIO ST. 641, 50
N.E. 1132 (1897); CLEVELAND LEADER PRINTING CO. V. GREEN, 52 OHIO ST.
487, 491, 40 N.E. 201, 203 (1895). 

IT IS FURTHER SAID THAT WHETHER A DEFENDANT'S APPEARANCE IS
VOLUNTARY IS TO BE DETERMINED AT THE TIME OF THE COURT PROCEEDING, NOT
AT A MUCH EARLIER DATE WHEN AN AGREEMENT WAS SIGNED; THAT AN
UNAUTHORIZED APPEARANCE BY AN ATTORNEY ON A DEFENDANT'S BEHALF CANNOT
CONFER JURISDICTION; AND THAT THE LAWYER WHO APPEARED IN OHIO WAS NOT
OVERMYER'S ATTORNEY IN ANY SENSE OF THE WORD, BUT WAS ONLY AN AGENT OF
FRICK. 

THE ARGUMENT THEN PROCEEDS TO CONSTITUTIONAL GROUNDS.  IT IS SAID
THAT DUE PROCESS REQUIRES REASONABLE NOTICE AND AN OPPORTUNITY TO BE
HEARD, CITING BODDIE V. CONNECTICUT, 401 U.S. 371, 378 (1971). IT IS
ACKNOWLEDGED, HOWEVER, THAT THE QUESTION HERE IS IN A CONTEXT OF
"CONTRACT WAIVER, BEFORE SUIT HAS BEEN FILED, BEFORE ANY DISPUTE HAS
ARISEN" AND "WHEREBY A PARTY GIVES UP IN ADVANCE HIS CONSTITUTIONAL
RIGHT TO DEFEND ANY SUIT BY THE OTHER, TO NOTICE AND AN OPPORTUNITY TO
BE HEARD, NO MATTER WHAT DEFENSES HE MAY HAVE, AND TO BE REPRESENTED BY
COUNSEL OF HIS OWN CHOICE."  /9/  IN OTHER WORDS, OVERMYER'S POSITION
HERE SPECIFICALLY IS THAT IT IS "UNCONSTITUTIONAL TO WAIVE IN ADVANCE
THE RIGHT TO PRESENT A DEFENSE IN AN ACTION ON THE NOTE.  /10/  IT IS
CONCEDED THAT IN OHIO A COURT HAS THE POWER TO OPEN THE JUDGMENT UPON A
PROPER SHOWING.  BELLOWS V. BOWLUS, 83 OHIO APP. 90, 93, 82 N.E.2D 429,
432 (1948).  BUT IT IS CLAIMED THAT SUCH A MOVE IS DISCRETIONARY AND
ORDINARILY WILL NOT BE DISTURBED ON APPEAL, AND THAT IT MAY NOT PREVENT
EXECUTION BEFORE THE DEBTOR HAS NOTICE, GRIFFIN V. GRIFFIN, 327 U.S.
220, 231-232 (1946).  GOLDBERG V. KELLY, 397 U.S. 254 (1970), AND
SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337 (1969), ARE CITED. 

THE DUE PROCESS RIGHTS TO NOTICE AND HEARING PRIOR TO A CIVIL
JUDGMENT ARE SUBJECT TO WAIVER.  IN NATIONAL EQUIPMENT RENTAL, LTD. V.
SZUKHENT, 375 U.S. 311 (1964), THE COURT OBSERVED: 

"(IT IS SETTLED . . . THAT PARTIES TO A CONTRACT MAY AGREE IN
ADVANCE TO SUBMIT TO THE JURSIDICTION OF A GIVEN COURT, TO PERMIT
NOTICE TO BE SERVED BY THE OPPOSING PARTY, OR EVEN TO WAIVE NOTICE
ALTOGETHER."  ID., AT 315-316.  AND IN BODDIE V. CONNECTICUT, SUPRA,
THE COURT ACKNOWLEDGED THAT "THE HEARING REQUIRED BY DUE PROCESS IS
SUBJECT TO WAIVER."  401 U.S.,AT 378-379. 

THIS, OF COURSE, PARALLELS THE RECOGNITION OF WAIVER IN THE CRIMINAL
CONTEXT WHERE PERSONAL LIBERTY, RATHER THAN A PROPERTY RIGHT, IS
INVOLVED.  ILLINOIS V. ALLEN, 397 U.S. 337, 342-343 (1970) (RIGHT TO BE
PRESENT AT TRIAL); MIRANDA V. ARIZONA, 384 U.S. 436, 444 (1966) (RIGHTS
TO COUNSEL AND AGAINST COMPULSORY SELF-INCRIMINATION); FAY V. NOIA, 372
U.S. 391, 439 (1963) (HABEAS CORPUS); ROGERS V. UNITED STATES, 340 U.S.
367, 371 (1951) (RIGHT AGAINST COMPULSORY SELF-INCRIMINATION). 

EVEN IF, FOR PRESENT PURPOSES, WE ASSUME THAT THE STANDARD FOR
WAIVER IN A CORPORATE-PROPERTY-RIGHT CASE OF THIS KIND IS THE SAME
STANDARD APPLICABLE TO WAIVER IN A CRIMINAL PROCEEDING, THAT IS, THAT
IT BE VOLUNTARY, KNOWING, AND INTELLIGENTLY MADE, BRADY V. UNITED
STATES, 397 U.S. 742, 748 (1970); MIRANDA V. ARIZONA, 384 U.S.,AT 444,
OR "AN INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR
PRIVILEGE,"  JOHNSON V. ZERBST, 304 U.S. 458, 464 (1938); FAY V. NOIA,
372 U.S.,AT 439, AND EVEN IF, AS THE COURT HAS SAID IN THE CIVIL AREA,
"(WE DO NOT PRESUME ACQUIESCENCE IN THE LOSS OF FUNDAMENTAL RIGHTS,"
OHIO BELL TEL. CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292, 307
(1937), THAT STANDARD WAS FULLY SATISFIED HERE. 

OVERMYER IS A CORPORATION.  ITS CORPORATE STRUCTURE IS COMPLICATED. 
ITS ACTIVITIES ARE WIDESPREAD.  AS ITS COUNSEL IN THE OHIO POST
JUDGMENT PROCEEDING STATED, IT HAS BUILT MANY WAREHOUSES IN MANY STATES
AND HAS BEEN PARTY TO "TENS OF THOUSANDS OF CONTRACTS WITH MANY
CONTRACTORS."  THIS IS NOT A CASE OF UNEQUAL BARGAINING POWER OR
OVERREACHING.  THE OVERMYER-FRICK AGREEMENT, FROM THE START, WAS NOT A
CONTRACT OF ADHESION.  THERE WAS NO REFUSAL ON FRICK'S PART TO DEAL
WITH OVERMYER UNLESS OVERMYER AGREED TO A COGNOVIT.  THE INITIAL
CONTRACT BETWEEN THE TWO CORPORATIONS CONTAINED NO CONFESSION-OF
JUDGMENT CLAUSE.  WHEN, LATER, THE FIRST INSTALLMENT NOTE FROM OVERMYER
CAME INTO BEING, IT, TOO, CONTAINED NO PROVISION OF THAT KIND.  IT WAS
ONLY AFTER FRICK'S WORK WAS COMPLETED AND ACCEPTED BY OVERMYER, AND
WHEN OVERMYER AGAIN BECAME DELINQUENT IN ITS PAYMENTS ON THE MATURED
CLAIM AND ASKED FOR FURTHER RELIEF, THAT THE SECOND NOTE CONTAINING THE
CLAUSE WAS EXECUTED. 

OVERMYER DOES NOT CONTEND HERE THAT IT OR ITS COUNSEL WAS NOT AWARE
OF THE SIGNIFICANCE OF THE NOTE AND OF THE COGNOVIT PROVISION.  INDEED,
IT COULD NOT DO SO IN THE LIGHT OF THE FACTS.  FRICK HAD SUGGESTED THE
PROVISION IN OCTOBER 1966, BUT THE FIRST NOTE, READJUSTING THE PROGRESS
PAYMENTS, WAS EXECUTED WITHOUT IT.  IT APPEARED IN THE SECOND NOTE
DELIVERED BY OVERMYER'S OWN COUNSEL IN RETURN FOR SUBSTANTIAL BENEFITS
AND CONSIDERATION TO OVERMYER.  PARTICULARLY IMPORTANT, IT WOULD SEEM,
WAS THE RELEASE OF FRICK'S MECHANIC'S LIENS, BUT THERE WERE, IN
ADDITION, THE MONETARY RELIEF AS TO AMOUNT, TIME, AND INTEREST RATE. 

OVERMYER MAY NOT HAVE BEEN ABLE TO PREDICT WITH ACCURACY JUST HOW OR
WHEN FRICK WOULD PROCEED UNDER THE CONFESSION CLAUSE IF FURTHER DEFAULT
BY OVERMYER OCCURRED, AS IT DID, BUT THIS INABILITY DOES NOT IN ITSELF
MILITATE AGAINST EFFECTIVE WAIVER.  SEE BRADY V. UNITED STATES, 397
U.S., AT 757; MCMANN V. RICHARDSON, 397 U.S. 759, 772-773 (1970). 

WE THEREFORE HOLD THAT OVERMYER, IN ITS EXECUTION AND DELIVERY TO
FRICK OF THE SECOND INSTALLMENT NOTE CONTAINING THE COGNOVIT PROVISION,
VOLUNTARILY, INTELLIGENTLY, AND KNOWINGLY WAIVED THE RIGHTS IT
OTHERWISE POSSESSED TO PREJUDGMENT NOTICE AND HEARING, AND THAT IT DID
SO WITH FULL AWARENESS OF THE LEGAL CONSEQUENCES. 

INSURANCE CO. V. MORSE, 20 WALL.  445 (1874), AFFORDS NO COMFORT TO
THE PETITIONERS.  THAT CASE CONCERNED THE CONSTITUTIONAL VALIDITY OF A
STATE STATUTE THAT REQUIRED A FOREIGN INSURANCE COMPANY, DESIRING TO
QUALIFY IN THE STATE, TO AGREE NOT TO REMOVE ANY SUIT AGAINST IT TO A
FEDERAL COURT.  THE COURT QUITE NATURALLY STRUCK DOWN THE STATUTE, FOR
IT THWARTED THE AUTHORITY VESTED BY CONGRESS IN THE FEDERAL COURTS AND
VIOLATED THE PRIVILEGES AND IMMUNITIES CLAUSE. 

MYERS V. JENKINS, 63 OHIO ST. 101, 120, 57 N.E. 1089, 1093 (1900),
INVOLVING AN INSURANCE CONTRACT THAT CALLED FOR ADJUSTMENT OF CLAIMS
THROUGH THE COMPANY ALONE AND WITHOUT RESORT TO THE COURTS, IS
SIMILARLY UNHELPFUL. 

        IV 

SOME CONCLUDING COMMENTS ARE IN ORDER: 

1.  OUR HOLDING NECESSARILY MEANS THAT A COGNOVIT CLAUSE IS NOT, PER
SE, VIOLATIVE OF FOURTEENTH AMENDMENT DUE PROCESS.  OVERMYER COULD
PREVAIL ONLY IF THE CLAUSE WERE CONSTITUTIONALLY INVALID.  THE FACTS OF
THIS CASE, AS WE OBSERVED ABOVE, ARE IMPORTANT, AND THOSE FACTS AMPLY
DEMONSTRATE THAT A COGNOVIT PROVISION MAY WELL SERVE A PROPER AND
USEFUL PURPOSE IN THE COMMERCIAL WORLD AND AT THE SAME TIME NOT BE
VULNERABLE TO CONSTITUTIONAL ATTACK. 

2.  OUR HOLDING, OF COURSE, IS NOT CONTROLLING PRECEDENT FOR OTHER
FACTS OF OTHER CASES.  FOR EXAMPLE, WHERE THE CONTRACT IS ONE OF
ADHESION, WHERE THERE IS GREAT DISPARITY IN BARGAINING POWER, AND WHERE
THE DEBTOR RECEIVES NOTHING FOR THE COGNOVIT PROVISION, OTHER LEGAL
CONSEQUENCES MAY ENSUE. 

3.  OVERMYER, MERELY BECAUSE OF ITS EXECUTION OF THE COGNOVIT NOTE,
IS NOT RENDERED DEFENSELESS.  IT CONCEDES THAT IN OHIO THE JUDGMENT
COURT MAY VACATE ITS JUDGMENT UPON A SHOWING OF A VALID DEFENSE AND,
INDEED, OVERMYER HAD A POST-JUDGMENT HEARING IN THE OHIO COURT.  IF
THERE WERE DEFENSES SUCH AS A PRIOR PAYMENT OR MISTAKEN IDENTITY, THOSE
DEFENSES COULD BE ASSERTED.  AND THERE IS NOTHING WE SEE THAT PREVENTED
OVERMYER FROM PURSUING ITS BREACH-OF-CONTRACT CLAIM AGAINST FRICK IN A
PROPER FORUM.  HERE, AGAIN, THAT IS PRECISELY WHAT OVERMYER HAS
ATTEMPTED TO DO, THUS FAR UNSUCCESSFULLY, IN THE SOUTHERN DISTRICT OF
NEW YORK. 

THE JUDGMENT IS

        AFFIRMED. 

/1/  WHEN THE JUDGMENT CHALLENGED HERE WAS ENTERED IN 1968 THE
STATUTE READ: 

"SEC. 2323.13 (A) AN ATTORNEY WHO CONFESSES JUDGMENT IN A CASE, AT
THE TIME OF MAKING IT TO THE COURT WHERE THE MAKER OR ANY ONE OF
SEVERAL MAKERS RESIDES OR IN THE COUNTY WHERE THE MAKER OF ANY ONE OF
SEVERAL MAKERS SIGNED THE WARRANT OF ATTORNEY AUTHORIZING CONFESSION OF
JUDGMENT, ANY AGREEMENT TO THE CONTRARY NOTWITHSTANDING; AND THE
ORIGINAL OR A COPY OF THE WARRANT SHALL BE FILED WITH THE CLERK. 

"(B) THE ATTORNEY WHO REPRESENTS THE JUDGMENT CREDITOR SHALL INCLUDE
IN THE PETITION A STATEMENT SETTING FORTH TO THE BEST OF HIS KNOWLEDGE
THE LAST KNOWN ADDRESS OF THE DEFENDANT. 

"(C) IMMEDIATELY UPON ENTERING ANY SUCH JUDGMENT THE COURT SHALL
NOTIFY THE DEFENDANT OF THE ENTRY OF THE JUDGMENT BY PERSONAL SERVICE
OR BY REGISTERED OR CERTIFIED MAIL MAILED TO HIM AT THE ADDRESS SET
FORTH IN THE PETITION." 

SENATE BILL NO. 85, 133 OHIO LAWS 196-198 (1969-1970), EFFECTIVE
SEPT. 16, 1970, AMENDED PARAGRAPHS (A) AND (C), IN WAYS NOT PERTINENT
HERE, AND ADDED PARAGRAPH (D): 

"(D) A WARRANT OF ATTORNEY TO CONFESS JUDGMENT CONTAINED IN ANY
PROMISSORY NOTE, BOND, SECURITY AGREEMENT, LEASE, CONTRACT, OR OTHER
EVIDENCE OF INDEBTEDNESS EXECUTED ON OR AFTER JANUARY 1, 1971, IS
INVALID AND THE COURTS ARE WITHOUT AUTHORITY TO RENDER A JUDGMENT BASED
UPON SUCH A WARRANT UNLESS THERE APPEARS ON THE INSTRUMENT EVIDENCING
THE INDEBTEDNESS, DIRECTLY ABOVE OR BELOW THE SIGNATURE OF EACH MAKER,
OR OTHER PERSON AUTHORIZING THE CONFESSION, IN SUCH TYPE SIZE OR
DISTINCTIVE MARKING THAT IT APPEARS MORE CLEARLY AND CONSPICUOUSLY THAN
ANYTHING ELSE ON THE DOCUMENT: 

"'WARNING-- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE
AND COURT TRIAL.  IF YOU DO NO PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A
COURT CAN BE USED TO COLLECT FROM YOU OR YOUR EMPLOYER REGARDLESS OF
ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE." 

/2/  THE IOWA SUPREME COURT SUCCINCTLY HAS DEFINED A COGNOVIT AS
"THE WRITTEN AUTHORITY OF THE DEBTOR AND HIS DIRECTION . . . TO ENTER
JUDGMENT AGAINST HIM AS STATED THEREIN."  BLOTT V. BLOTT, 227 IOWA
1108, 1111-1112, 290 N.W. 74, 76 (1940). 

IN JONES V. JOHN HANCOCK MUTUAL LIFE INSURANCE CO., 289 F.SUPP. 
930, 935 (WD MICH. 1968), AFF'D, 416 F.2D 829 (CA6 1969), JUDGE FOX, IN
APPLYING OHIO LAW, PERTINENTLY OBSERVED: 

"A COGNOVIT NOTE IS NOT AN ORDINARY NOTE.  IT IS INDEED AN
EXTRAORDINARY NOTE WHICH AUTHORIZES AN ATTORNEY TO CONFESS JUDGMENT
AGAINST THE PERSON OR PERSONS SIGNING IT.  IT IS WRITTEN AUTHORITY OF A
DEBTOR AND A DIRECTION BY HIM FOR THE ENTRY OF A JUDGMENT AGAINST HIM
IF THE OBLIGATIONS SET FORTH IN THE NOTE IS NOT PAID WHEN DUE.  SUCH A
JUDGMENT MAY BE TAKEN BY ANY PERSON OR ANY COMPANY HOLDING THE NOTE,
AND IT CUTS OFF EVERY DEFENSE WHICH THE MAKER OF THE NOTE MAY OTHERWISE
HAVE.  IT LIKEWISE CUTS OFF ALL RIGHTS OF APPEAL FROM ANY JUDGMENT
TAKEN ON IT." 

/3/  HISTORICAL REFERENCES APPEAR IN GENERAL CONTRACT PURCHASE CORP.
V. MAX KEIL REAL ESTATE CO., 35 DEL. 531, 532-533, 170 A. 797, 798
(1933), AND FIRST NAT. BK. V. WHITE, 220 MO. 717, 728-732, 120 S.W. 36,
39-40 (1909). 

/4/  RECENT CASES, CONFESSION OF JUDGMENTS-- REFUSAL OF NEW YORK
STATE TO ENFORCE PENNSYLVANIA COGNOVIT JUDGMENTS, 74 DICK.L.REV.  750
(1970); NOTE, ENFORCEMENT OF SISTER STATE'S COGNOVIT JUDGMENTS, 16
WAYNE L.REV.  1181 (1970); H. GOODRICH, CONFLICT OF LAWS SEC. 73, P.
122 (4TH ED. 1964); HOPSON, COGNOVIT JUDGMENTS:  AN IGNORED PROBLEM OF
DUE PROCESS AND FULL FAITH AND CREDIT, 29 U.CHI.L.REV.  111 (1961);
HUNTER, THE WARRANT OF ATTORNEY TO CONFESS JUDGMENT, 8 OHIO ST.L.J. 1
(1941); NOTE, A CLASH IN OHIO?:  COGNOVIT NOTES AND THE BUSINESS ETHIC
OF THE UCC, 35 U.CIN.L.REV.  470 (1966); COMMENT, THE EFFECT OF FULL
FAITH AND CREDIT ON COGNOVIT JUDGMENTS, 42 U.COLO.L.REV.  173 (1970);
COMMENT, CONFESSIONS OF JUDGMENT:  THE DUE PROCESS DEFECTS, 43
TEMP.L.Q. 279 (1970); COMMENT, COGNOVIT JUDGMENTS AND THE FULL FAITH
AND CREDIT CLAUSE, 50 B.U.L.REV.  330 (1970); COMMENT, COGNOVIT
JUDGMENTS:  SOME CONSTITUTIONAL CONSIDERATIONS, 70 COL.L.REV.  1118
(1970); NOTE, CONFESSIONS OF JUDGMENT, 102 U.PA.L.REV.  524 (1954);
NOTE, FOREIGN COURTS MAY DENY FULL FAITH AND CREDIT TO COGNOVIT
JUDGMENTS AND MUST DO SO WHEN ENTERED PURSUANT TO AN UNLIMITED WARRANT
OF ATTORNEY, 56 VA.L.REV.  554 (1970); NOTE, SHOULD A COGNOVIT JUDGMENT
VALIDLY ENTERED IN ONE STATE BE RECOGNIZED BY A SISTER STATE?, 30
MD.L.REV.  350 (1970). 

/5/  ILL. REV. STAT., C. 110, SEC. 50; MO. REV. STAT. SEC. 511.100;
OHIO REV. CODE SEC. 2323.13; PA. STAT. ANN., TIT. 12, SECS. 738 AND 739
AND PA. RULES OF CIVIL PROCEDURE 2950-2976; S.D. COMP. LAWS SEC. 21-26
1. 

/6/  SEE, FOR EXAMPLE, ALA. CODE, TIT. 20, SEC. 16, AND TIT. 62,
SEC. 248; ARIZ. REV. STAT. ANN. SECS. 6-629 AND 44-143; MASS. GEN. LAWS
ANN., C. 231, SEC. 13A. 

/7/  IND. ANN. STAT. SECS. 2-2904 AND 2-2906; N.M. STAT. ANN. SECS.
21-9 AND 21-9-18; R.I. GEN. LAWS ANN. SECS. 19-25-24 AND 19-25-36. 

/8/  SEE, FOR EXAMPLE, CONN. GEN. STAT. REV. SECS. 42-88 AND 36-236;
MICH. COMP. LAWS SECS. 600.2906 AND 493.12, MICH. STAT. ANN. SECS. 27A.
2906 AND 23.667(12); MINN. STAT. SECS. 548.22, 168.71, AND 56.12; N.J.
STAT. ANN. SEC. 2A:16-9. 

/9/  BRIEF FOR PETITIONERS 16. 

/10/ TR. OF ORAL ARG. 17. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE MARSHALL JOINS, CONCURRING. 

I AGREE THAT THE HEAVY BURDEN AGAINST THE WAIVER OF CONSTITUTIONAL
RIGHTS, WHICH APPLIES EVEN IN CIVIL MATTERS, OHIO BELL TEL. CO. V.
PUBLIC UTILITIES COMM'N, 301 U.S. 292, 307 (1937); AETNA INS. CO. V.
KENNEDY, 301 U.S. 389, 393 (1937), HAS BEEN EFFECTIVELY REBUTTED BY THE
EVIDENCE PRESENTED IN THIS RECORD.  WHATEVER PROCEDURAL HARDSHIP THE
OHIO CONFESSION-OF-JUDGMENT SCHEME WORKED UPON THE PETITIONERS WAS
VOLUNTARILY AND UNDERSTANDINGLY SELF-INFLICTED THROUGH THE ARM'S-LENGTH
BARGAINING OF THESE CORPORATE PARTIES. 

I ADD A WORD CONCERNING THE CONTENTION THAT OPENING OF CONFESSED
JUDGMENTS IN OHIO IS MERELY DISCRETIONARY AND REQUIRES A HIGHER BURDEN
OF PERSUASION THAN IS ORDINARILY IMPOSED UPON DEFENDANTS.  AS I READ
THE OHIO LAW OF COGNOVIT NOTES, TRIAL JUDGES HAVE TRADITIONALLY ENJOYED
WIDE DISCRETION IN VACATING CONFESSED JUDGMENTS.  32 OHIO JUR.2D,
JUDGMENTS 558 (1958).  IN LIVINGSTONE V. REBMAN, 169 OHIO ST. 109, 158
N.E.2D 366 (1959), HOWEVER, THE OHIO SUPREME COURT IMPOSED CERTAIN
SAFEGUARDS ON THE EXERCISE OF A JUDGE'S DISCRETION IN OPENING CONFESSED
JUDGMENTS.  THAT CASE ALSO INVOLVED A PETITION TO OPEN A CONFESSED
JUDGMENT WHERE, AS HERE, THE DEBTOR ALLEGED THE AFFIRMATIVE DEFENSE OF
FAILURE OF CONSIDERATION.  USING THE PREPONDERANCE-OF-THE-EVIDENCE
TEST, THE TRIAL COURT HAD FOUND INSUFFICIENT SUPPORT FOR THE DEBTOR'S
CLAIM AND HAD DISMISSED THE MOTION TO OPEN.  ON APPEAL, HOWEVER, THE
OHIO SUPREME COURT REVERSED ON THE DEGREE OF PROOF NEEDED TO VACATE A
CONFESSED JUDGMENT.  SAID THE COURT:     "(IF THERE IS CREDIBLE
EVIDENCE SUPPORTING THE DEFENSE . . . FROM WHICH REASONABLE MINDS MAY
REACH DIFFERENT CONCLUSIONS, IT IS THEN THE DUTY OF THE COURT TO
SUSPEND THE JUDGMENT AND PERMIT THE ISSUE RAISED BY THE PLEADINGS TO BE
TRIED BY A JURY OR, IF A JURY IS WAIVED, BY THE COURT."  ID., AT 121
122, 158 N.E.2D, AT 375.  THUS IT WOULD APPEAR THAT THE OHIO CONFESSED
JUDGMENT MAY BE OPENED IF THE DEBTOR POSES A JURY QUESTION, THAT IS, IF
HIS EVIDENCE WOULD HAVE BEEN SUFFICIENT TO PREVENT A DIRECTED VERDICT
AGAINST HIM.  THAT STANDARD IS A MINIMAL OBSTACLE.  /1/ 

THE FACT THAT A TRIAL JUDGE IS DUTYBOUND TO VACATE JUDGMENTS
OBTAINED THROUGH COGNOVIT CLAUSES WHERE DEBTORS PRESENT JURY QUESTIONS
IS A COMPLETE ANSWER TO THE CONTENTION THAT UNBRIDLED DISCRETION
GOVERNS THE DISPOSITION OF PETITIONS TO VACATE.  SEE ALSO GOODYEAR V.
STONE, 169 OHIO ST. 124, 158 N.E.2D 376 (1959); MCMILLEN V. WILLARD
GARAGE INC., 14 OHIO APP.2D 112, 115, 237 N.E.2D 155, 158 (1968);
CENTRAL NATIONAL BANK OF CLEVELAND V. STANDARD LOAN & FINANCE, 5 OHIO
APP.2D 101, 104, 195 N.E.2D 597, 600 (1964). 

THE RECORD SHOWS THAT THE PETITIONERS WERE GIVEN EVERY OPPORTUNITY
AFTER JUDGMENT TO EXPLAIN THEIR AFFIRMATIVE DEFENSE TO THE STATE COURTS
AND THAT THE DEFENSE WAS REJECTED SOLELY BECAUSE THE EVIDENCE ADDUCED
IN SUPPORT THEREOF WAS TOO THIN TO WARRANT FURTHER PRESENTATION TO A
JURY. 

/1/  THUS THE OHIO SYSTEM PLACES NO UNDUE BURDEN OF PROOF UPON THE
DEBTOR DESIRING TO OPEN A CONFESSED JUDGMENT, IN MARKED CONTRAST TO THE
PENNSYLVANIA PROCEDURE INVOLVED IN SWARB V. LENNOX, POST, P. 191. 
PENNSYLVANIA, IN ORDER TO VACATE SUCH A JUDGMENT, A BORROWER MUST PROVE
HIS DEFENSE BY THE PREPONDERANCE OF EVIDENCE RATHER THAN BY MERELY
MUSTERING ENOUGH EVIDENCE TO PRESENT A JURY QUESTION.  ONCE THE
JUDGMENT IS VACATED, MOREOVER, HE MUST AGAIN PREVAIL BY THAT STANDARD
AT A SUBSEQUENT TRIAL.  IN EFFECT, THE PENNSYLVANIA CONFESSED DEBTOR IS
REQUIRED TO WIN TWO CONSECUTIVE TRIALS, NOT SIMPLY ONE.  GIVEN THE
PROCLIVITIES OF REASONABLE MEN TO DIFFER OVER THE PROBATIVE VALUE OF
JURY QUESTIONS, THE PENNSYLVANIA REQUIREMENT OF TWICE SUSTAINING THE
PREPONDERANCE OF THE EVIDENCE IMPOSES A STIFFER BURDEN OF PERSUASION. 

RUSSELL MORTON BROWN ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

GREGORY M. HARVEY ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS JAMES M. TUSCHMAN. 

FRANKLIN A. MARTENS FILED A BRIEF FOR THE OHIO STATE LEGAL SERVICES
ASSN. ET AL. AS AMICI CURIAE URGING REVERSAL. 
..END :






SWARB V. LENNOX, 405 U.S. 191 


       SWARB ET AL. V. LENNOX ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

   DISTRICT OF PENNSYLVANIA

        NO. 70-6.  ARGUED NOVEMBER 9, 1971-- DECIDED FEBRUARY 24,

           1972 


APPELLANTS (HEREAFTER PLAINTIFFS), PURPORTING TO ACT ON BEHALF OF A
CLASS CONSISTING OF ALL PENNSYLVANIA RESIDENTS WHO SIGNED DOCUMENTS
CONTAINING COGNOVIT PROVISIONS LEADING, OR THAT COULD LEAD, TO
CONFESSED JUDGMENTS IN PHILADELPHIA, BROUGHT THIS ACTION CHALLENGING
THE PENNSYLVANIA SYSTEM AS UNCONSTITUTIONAL ON ITS FACE AS VIOLATIVE OF
DUE PROCESS.  THE THREE-JUDGE DISTRICT COURT HELD THAT:  THE
PENNSYLVANIA SYSTEM LEADING TO CONFESSED JUDGMENTS AND EXECUTION
COMPLIES WITH DUE PROCESS ONLY IF "THERE HAS BEEN AN UNDERSTANDING AND
VOLUNTARY CONSENT OF THE DEBTOR IN SIGNING THE DOCUMENT"; PLAINTIFFS
DID NOT SUSTAIN THEIR BURDEN OF PROOF WITH RESPECT TO LACK OF VALID
CONSENT IN THE EXECUTION OF BONDS AND WARRANTS OF ATTORNEY ACCOMPANYING
MORTGAGES; THE RECORD DID NOT ESTABLISH THAT THE ACTION COULD BE
MAINTAINED ON BEHALF OF NATURAL PERSONS WITH INCOMES OVER $10,000, BUT
AN ACTION COULD BE MAINTAINED FOR THOSE WHO EARN LESS THAN $10,000 AND
WHO SIGNED CONSUMER FINANCING OR LEASE CONTRACTS CONTAINING COGNOVIT
PROVISIONS; THERE WAS NO INTENTIONAL WAIVER OF KNOWN RIGHTS BY MEMBERS
OF THAT CLASS IN EXECUTING CONFESSION-OF-JUDGMENT CLAUSES; AND NO
JUDGMENT BY CONFESSION MIGHT BE ENTERED AFTER NOVEMBER 1, 1970, AS TO A
MEMBER OF THE RECOGNIZED CLASS UNLESS IT IS SHOWN THAT THE DEBTOR
"INTENTIONALLY, UNDERSTANDINGLY, AND VOLUNTARILY WAIVED" HIS RIGHTS;
AND THE COURT DECLARED THE PENNSYLVANIA PRACTICE OF CONFESSING
JUDGMENTS TO BE UNCONSTITUTIONAL, PROSPECTIVELY EFFECTIVE AS NOTED, AS
APPLIED TO THE DESIGNATED CLASS, AND ENJOINED ENTRY OF ANY CONFESSED
JUDGMENT AGAINST A MEMBER OF THE CLASS ABSENT A SHOWING OF THE REQUIRED
WAIVER.  THE PLAINTIFFS APPEALED, CLAIMING THAT THE ENTIRE PENNSYLVANIA
SCHEME IS UNCONSTITUTIONAL ON ITS FACE.  HELD: 

1.  THE PENNSYLVANIA RULES AND STATUTES RELATING TO COGNOVIT
PROVISIONS ARE NOT UNCONSTITUTIONAL ON THEIR FACE, AS UNDER APPROPRIATE
CIRCUMSTANCES, A COGNOVIT DEBTOR MAY BE HELD EFFECTIVELY AND LEGALLY TO
HAVE WAIVED THE RIGHTS HE WOULD POSSESS IF THE DOCUMENT HE SIGNED HAD
CONTAINED NO COGNOVIT PROVISION.  D. H. OVERMYER CO. V. FRICK CO.,
ANTE, P. 174.  P. 200. 

2. IN LIGHT OF THE FACT THAT THE NAMED DEFENDANTS AND THE
INTERVENORS HAVE TAKEN NO CROSS APPEAL, THE AFFIRMANCE OF THE JUDGMENT
BELOW DOES NOT MEAN THAT THE DISTRICT COURT'S OPINION AND JUDGMENT ARE
APPROVED AS TO OTHER ASPECTS AND DETAILS THAT WERE NOT BEFORE THIS
COURT.  P. 201. 

314 F.SUPP.  1091, AFFIRMED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, WHITE, AND MARSHALL, JJ;, JOINED.  WHITE,
J., FILED A CONCURRING OPINION, POST, P. 202.  DOUGLAS, J., FILED AN
OPINION DISSENTING IN PART, POST, P. 203.  POWELL AND REHNQUIST, JJ.,
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL, HEARD AS A COMPANION TO D. H. OVERMYER CO. V. FRICK
CO., ANTE, P. 174, DECIDED TODAY, ALSO PURPORTS TO RAISE FOR THE COURT
THE ISSUE OF THE DUE PROCESS VALIDITY OF COGNOVIT PROVISIONS.  THE
SYSTEM UNDER CHALLENGE IN THIS CASE IS THAT OF PENNSYLVANIA.  /1/  THE
THREE-JUDGE DISTRICT COURT, WITH ONE JUDGE DISSENTING IN PART BECAUSE,
IN HIS VIEW, THE COURT DID NOT GO FAR ENOUGH, REFRAINED FROM DECLARING
THE COMMONWEALTH'S RULES AND STATUTES UNCONSTITUTIONAL ON THEIR FACE
AND GRANTED DECLARATORY AND INJUNCTIVE RELIEF ONLY FOR A LIMITED CLASS
OF COGNOVIT SIGNERS.  314 F.SUPP.  1091 (ED PA. 1970).  THE PLAINTIFFS,
BUT NOT THE DEFENDANTS, APPEALED.  WE NOTED PROBABLE JURISDICTION THE
SAME DAY CERTIORARI WAS GRANTED IN OVERMYER.  401 U.S. 991. 

        I 

THE COGNOVIT SYSTEM IS FIRMLY ENTRENCHED IN PENNSYLVANIA AND HAS
LONG BEEN IN EFFECT THERE. 

A CONFESSION OF JUDGMENT FOR MONEY "MAY BE ENTERED BY THE
PROTHONOTARY . . . WITHOUT THE AGENCY OF AN ATTORNEY AND WITHOUT THE
FILING OF A COMPLAINT, DECLARATION OR CONFESSION, FOR THE AMOUNT WHICH
MAY APPEAR TO BE DUE FROM THE FACE OF THE INSTRUMENT," PA. RULE CIV.
PROC. 2951(A), EXCEPT THAT THE ACTION MUST BE INSTITUTED BY A COMPLAINT
IF THE INSTRUMENT IS MORE THAN 10 YEARS OLD OR CANNOT BE PRODUCED FOR
FILING, "OR IF IT REQUIRES THE OCCURRENCE OF A DEFAULT OR CONDITION
PRECEDENT BEFORE JUDGMENT MAY BE ENTERED."  RULES 2951(C) AND (D).  IN
AN ACTION INSTITUTED BY A COMPLAINT, THE PLAINTIFF SHALL FILE A
CONFESSION OF JUDGMENT SUBSTANTIALLY IN A PRESCRIBED FORM, AND THE
ATTORNEY FOR THE PLAINTIFF "MAY SIGN THE CONFESSION AS ATTORNEY FOR THE
DEFENDANT" UNLESS A STATUTE OR THE INSTRUMENT PROVIDES OTHERWISE.  RULE
2955.  THE PROTHONOTARY ENTERS JUDGMENT "IN CONFORMITY WITH THE
CONFESSION."  RULE 2956.  /2/  THE AMOUNT DUE, INTEREST, ATTORNEYS'
FEES, AND COSTS MAY BE INCLUDED BY THE PLAINTIFF IN THE PRAECIPE FOR A
WRIT OF EXECUTION.  RULE 2957. 

WITHIN 20 DAYS AFTER THE ENTRY OF JUDGMENT THE PLAINTIFF SHALL MAIL
THE DEFENDANT WRITTEN NOTICE.  FAILURE TO DO THIS, HOWEVER, DOES NOT
AFFECT THE JUDGMENT LIEN.  RULE 2958(A).  WITHIN THE SAME 20 DAYS THE
PLAINTIFF MAY ISSUE A WRIT OF EXECUTION AND MAY DO SO EVEN IF THE
NOTICE IS NOT YET MAILED.  RULE 2958(B).  IF AN AFFIDAVIT OF MAILING IS
NOT FILED WITHIN THE 20-DAY PERIOD, THE WRIT OF EXECUTION MAY NOT ISSUE
UNTIL 20 DAYS AFTER THE AFFIDAVIT OF MAILING HAS BEEN FILED.  RULE
2958(C). 

RELIEF FROM A JUDGMENT BY CONFESSION MAY BE SOUGHT BY A PETITION
ASSERTING "(ALL GROUNDS FOR RELIEF WHETHER TO STRIKE OFF THE JUDGMENT
OR TO OPEN IT . . . . "  RULE 2959(A).  IF THE PETITION STATES PRIMA
FACIE GROUNDS FOR RELIEF, THE COURT ISSUES A RULE TO SHOW CAUSE AND MAY
GRANT A STAY.  A DEFENDANT "WAIVES ALL DEFENSES AND OBJECTIONS" NOT
INCLUDED IN THE PETITION.  THE COURT "SHALL DISPOSE OF THE RULE ON
PETITION AND ANSWER, AND ON ANY TESTIMONY, DEPOSITIONS, ADMISSIONS AND
OTHER EVIDENCE."  RULES 2959(B), (C), AND (E).  IF THE JUDGMENT IS
OPENED IN WHOLE OR IN PART, THE ISSUES ARE THEN TRIED.  RULE 2960. 

THE PROCEDURE FOR CONFESSION OF JUDGMENT FOR POSSESSION OF REAL
PROPERTY IS ESSENTIALLY THE SAME EXCEPT THAT THE ACTION SHALL BE
COMMENCED BY FILING A COMPLAINT.  RULES 2970-2973. 

THE PROTHONOTARY SPECIFICALLY IS GIVEN POWER TO "ENTER JUDGMENTS AT
THE INSTANCE OF PLAINTIFFS, UPON THE CONFESSIONS OF DEFENDANTS."  PA.
STAT. ANN., TIT. 17, SEC. 1482.  THE PROTHONOTARY IS THE CLERK OF THE
COURT OF COMMON PLEAS.  HE HAS NO JUDICIAL FUNCTION.  IT HAS BEEN SAID
THAT HIS POWER IS DERIVED FROM THE INSTRUMENT UNDER WHICH HE ACTS AND
NOT FROM HIS OFFICE, SMITH V. SAFEGUARD MUT. INS. CO., 212 PA.SUPER. 
83, 87, 239 A.2D 824, 826 (1968), AND THAT HIS ENTRY OF JUDGMENT IS A
MINISTERIAL ACT, LENSON V. SANDLER, 430 PA. 193, 197, 241 A.2D 66, 68
(1968). 

IT HAS ALSO BEEN SAID THAT THE CONFESSION OF JUDGMENT PROCEDURE IN
PENNSYLVANIA EXISTS "INDEPENDENT OF STATUTE."  EQUIPMENT CORP. OF
AMERICA V. PRIMOS VANADIUM CO., 285 PA. 432, 437, 132 A. 360, 362
(1926); COOK V. GILBERT, 8 SERG.  & R. 567, 568 (1822); HATCH V. STITT,
66 PA. 264 (1870). 

IT IS APPARENT, THEREFORE, THAT IN PENNSYLVANIA CONFESSION-OF
JUDGMENT PROVISIONS ARE GIVEN FULL PROCEDURAL EFFECT; THAT THE
PLAINTIFF'S ATTORNEY HIMSELF MAY EFFECTUATE THE ENTIRE PROCEDURE; THAT
THE PROTHONOTARY, A NONJUDICIAL OFFICER, IS THE OFFICIAL UTILIZED; THAT
NOTICE ISSUES AFTER THE JUDGMENT IS ENTERED; AND THAT EXECUTION UPON
THE CONFESSED JUDGMENT MAY BE TAKEN FORTHWITH.  THE DEFENDANT MAY SEEK
RELIEF BY WAY OF A PETITION TO STRIKE THE JUDGMENT OR TO OPEN IT, BUT
HE MUST ASSERT PRIMA FACIE GROUNDS FOR THIS RELIEF, AND HE ACHIEVES A
TRIAL ONLY IF HE PERSUADES THE COURT TO OPEN.  MEANWHILE, THE JUDGMENT
AND ITS LIEN REMAIN. 

THE PERVASIVE AND DRASTIC CHARACTER OF THE PENNSYLVANIA SYSTEM HAS
BEEN NOTED.  CUTLER CORP. V. LATSHAW, 374 PA. 1, 4-5, 97 A.2D 234, 236
(1953).  SEE KINE V. FORMAN, 404 PA. 301, 172 A.2D 164 (1961), AND
ATLAS CREDIT CORP. V. EZRINE, 25 N.Y.2D 219, 250 N.E.2D 474 (1969). 

II 

SEVEN INDIVIDUALS ARE THE NAMED PLAINTIFFS IN THE ORIGINAL COMPLAINT
FILED IN DECEMBER 1969.  JURISDICTION IS BASED ON THE CIVIL RIGHTS
STATUTES, 28 U.S.C. 1343 AND 42 U.S.C. 1983.  THE PLAINTIFFS PURPORT TO
ACT ON BEHALF OF A CLASS CONSISTING OF ALL PENNSYLVANIA RESIDENTS WHO
HAVE SIGNED DOCUMENTS CONTAINING COGNOVIT PROVISIONS LEADING, OR THAT
COULD LEAD, TO A CONFESSED JUDGMENT IN PHILADELPHIA COUNTY.  THE
DEFENDANTS ARE THE COUNTY'S PROTHONOTARY AND SHERIFF, THE OFFICIALS
RESPONSIBLE, RESPECTIVELY, FOR THE RECORDING OF CONFESSED JUDGMENTS AND
FOR EXECUTING UPON THEM.  THE COMPLAINT ALLEGES THAT EACH PLAINTIFF HAS
SIGNED ONE OR ANOTHER TYPE OF CONSUMER FINANCING AGREEMENT PURSUANT TO
WHICH HIS CREDITOR HAS ENTERED JUDGMENT; THAT EACH FACES IMMEDIATE
JUDICIAL SALE OF HIS HOME OR PERSONAL BELONGINGS; THAT THE PENNSYLVANIA
RULES AND STATUTES ARE UNCONSTITUTIONAL ON THEIR FACE BECAUSE THEY
DEPRIVE MEMBERS OF THE CLASS OF PROCEDURAL DUE PROCESS IN THE DENIAL OF
NOTICE AND HEARING BEFORE JUDGMENT; THAT THE SIGNING OF THE COGNOVIT
CONTRACT WAS NOT AN INTELLIGENT AND VOLUNTARY WAIVER OF THE RIGHT TO
NOTICE AND HEARING; THAT THE ONLY RECOURSE AGAINST THE RECORDED
JUDGMENT IS AN ACTION TO STRIKE OR REOPEN; AND THAT SUCH RECOURSE IS
COSTLY AND BURDENSOME TO LOW INCOME CONSUMERS, AND DENIES THEM EQUAL
PROTECTION.  THE RELIEF SOUGHT IS A DECLARATION THAT THE PENNSYLVANIA
RULES AND STATUTES ARE UNCONSTITUTIONAL, AND AN INJUNCTION AGAINST THE
DEFENDANTS'"OPERATING UNDER THE ABOVE ACTS AND RULES."  A THREE-JUDGE
COURT WAS REQUESTED. 

THE SINGLE DISTRICT JUDGE ENTERED A TEMPORARY RESTRAINING ORDER
STAYING EXECUTION OF JUDGMENTS AGAINST THE SEVEN PLAINTIFFS.  HE ALSO
PROVIDED A PROCEDURE FOR ADDING ADDITIONAL PLAINTIFFS.  THE THREE-JUDGE
COURT CONTINUED AND EXPANDED THE RESTRAINING ORDER TO STAY ALL
EXECUTIONS UPON CONFESSED JUDGMENTS IN THE COMMONWEALTH.  A NUMBER OF
ADDITIONAL PLAINTIFFS WERE ADDED, AND ONE ORIGINAL PLAINTIFF WAS
DISMISSED FROM THE CASE.  A GROUP OF FINANCE COMPANIES WAS PERMITTED TO
INTERVENE. 

STIPULATIONS WERE MADE.  ONE WAS BETWEEN COUNSEL FOR THE PLAINTIFFS
AND THE CITY SOLICITOR; ANOTHER WAS BETWEEN COUNSEL FOR THE PLAINTIFFS
AND FOR THE INTERVENOR FINANCE COMPANIES.  THESE STIPULATIONS ARE NOT
IDENTICAL BUT THEY DO OVERLAP.  THEY ESTABLISHED THE FOLLOWING: 

1.  JUDGMENTS BY CONFESSION AGAINST THE VARIOUS PLAINTIFFS HAD BEEN
ENTERED RANGING IN AMOUNTS FROM $249.23 TO $25,800. 

2.  IF CALLED AS WITNESSES, THE ORIGINAL PLAINTIFFS WOULD TESTIFY TO
THE FACTS ALLEGED IN THE COMPLAINT.  EACH WOULD ALSO TESTIFY AS TO HIS
UNAWARENESS OF THE COGNOVIT CLAUSE, HIS LACK OF UNDERSTANDING OF ITS
SIGNIFICANCE IF HE HAD READ IT, AND HIS INABILITY TO BARGAIN ABOUT IT
ANYWAY. 

3.  IF CALLED, SOME OF THE PLAINTIFFS WOULD TESTIFY THAT THEY WERE
ENCOURAGED NOT TO READ THEIR CONTRACTS; THAT THE JUDGMENTS EXCEEDED THE
DEBTS BECAUSE OF THE ADDITION OF PENALTIES, COSTS, AND FEES; THAT THEY
COULD NOT AFFORD PROCEEDINGS TO STRIKE OR REOPEN; AND THAT THEY
BELIEVED THEY HAD MERITORIOUS DEFENSES. 

4.  THE IMPOSITION AND AMOUNT OF SHERIFF'S COSTS, BAR ASSOCIATION
FEE SCHEDULES, AND NECESSARY DEPOSITION AND TRANSCRIPT COSTS IN THE
COGNOVIT PROCEDURE WERE ACKNOWLEDGED. 

THE THREE-JUDGE COURT HELD A HEARING.  IN ADDITION TO THE APPEARANCE
OF COUNSEL FOR THE PLAINTIFFS AND FOR THE INTERVENORS, AN ASSISTANT
CITY SOLICITOR OF PHILADELPHIA APPEARED FOR THE NAMED DEFENDANTS, AND A
DEPUTY ATTORNEY GENERAL APPEARED FOR THE COMMONWEALTH.  THE ONLY
PLAINTIFF TO TESTIFY WAS ONE OF THOSE ADDED AFTER THE COMPLAINT HAD
BEEN FILED.  SHE WAS A POSTAL CLERK WHO EARNED $6,100 ANNUALLY AND WHO
HAD AGREED WITH A DOOR-TO-DOOR SALESMAN TO BUY A CARPET FOR $1,300. 
HER CONTRACT CONTAINED A COGNOVIT CLAUSE PURSUANT TO WHICH A FINANCE
COMPANY HAD OBTAINED A CONFESSED JUDGMENT.  A DETECTIVE AND A FINANCE
COMPANY OFFICER WERE PRESENTED BY THE PLAINTIFFS.  THEY TESTIFIED TO
THE PERVASIVENESS OF COGNOVIT CLAUSES AND THE "DISBELIEF AND SHOCK" OF
THOSE WHO HAD SIGNED THEM. 

THE PLAINTIFFS ALSO INTRODUCED IN EVIDENCE BY STIPULATION A
PUBLISHED REPORT BY DAVID CAPLOVITZ, PH. D., CONSUMERS IN TROUBLE. 
THIS WAS A 1968 STUDY OF CONFESSED-JUDGMENT DEBTORS IN FOUR MAJOR
PENNSYLVANIA CITIES.  IT INCLUDED 245 PHILADELPHIA DEBTORS.  THE STUDY
PURPORTED TO SHOW THAT 96% HAD ANNUAL INCOMES OF LESS THAN $10,000, AND
56% LESS THAN $6,000; THAT ONLY 30% HAD GRADUATED FROM HIGH SCHOOL; AND
THAT ONLY 14% KNEW THE CONTRACTS THEY SIGNED CONTAINED COGNOVIT
CLAUSES. 

THE ONLY OTHER WITNESS AT THE HEARING WAS ONE CALLED BY THE
INTERVENORS.  HE WAS A FINANCE COMPANY OFFICER AND TESTIFIED AS TO THE
USUAL PRACTICE OF MAKING LOANS. 

THE THREE-JUDGE DISTRICT COURT HELD: 

1.  THE PENNSYLVANIA SYSTEM LEADING TO CONFESSED JUDGMENT AND
EXECUTION DOES COMPLY WITH DUE PROCESS STANDARDS PROVIDED "THERE HAS
BEEN AN UNDERSTANDING AND VOLUNTARY CONSENT OF THE DEBTOR IN SIGNING
THE DOCUMENT."  314 F.SUPP.,AT 1095. 

2.  IF, HOWEVER, THERE IS NO SUCH UNDERSTANDING CONSENT, THE PROCEDURE
VIOLATES DUE PROCESS REQUIREMENTS OF NOTICE AND AN OPPORTUNITY TO BE
HEARD.  IBID. 

3.  THE PLAINTIFFS DID NOT SUSTAIN THEIR BURDEN OF PROOF WITH
RESPECT TO THE LACK OF VALID CONSENT IN THE EXECUTION OF BONDS AND
WARRANTS OF ATTORNEY ACCOMPANYING MORTGAGES.  ID., AT 1098. 

4.  THE RECORD DID NOT ESTABLISH THAT THE ACTION COULD BE MAINTAINED
AS A CLASS ACTION ON BEHALF OF INDIVIDUAL NATURAL PERSONS WITH ANNUAL
INCOMES OF MORE THAN $10,000.  ID., AT 1098-1099. 

5.  IT COULD BE MAINTAINED, HOWEVER, AS A CLASS ACTION ON BEHALF OF
NATURAL PERSONS RESIDING IN PENNSYLVANIA WHO EARN LESS THAN $10,000
ANNUALLY AND WHO SIGNED CONSUMER FINANCING OR LEASE CONTRACTS
CONTAINING COGNOVIT PROVISIONS.  ID., AT 1099. 

6.  THERE WAS NO INTENTIONAL WAIVER OF KNOWN RIGHTS BY MEMBERS OF
THAT CLASS IN EXECUTING CONFESSION-OF-JUDGMENT CLAUSES.  THESE WERE THE
RIGHT TO HAVE PREJUDGMENT NOTICE AND HEARING, THE RIGHT TO HAVE THE
BURDEN OF PROOF ON THE CREDITOR, AND THE RIGHT TO AVOID THE EXPENSES
ATTENDANT UPON OPENING OR STRIKING A CONFESSED JUDGMENT.  SINCE THE
PENNSYLVANIA PROCEDURE WITH RESPECT TO THE DESIGNATED CLASS WAS BASED
UPON A WAIVER CONCEPT WITHOUT ADEQUATE UNDERSTANDING, IT WAS VIOLATIVE
OF DUE PROCESS.  ID., AT 1100. 

7.  IT WAS NOT THE FEDERAL COURT'S FUNCTION TO DICTATE TO
PENNSYLVANIA "EXACTLY WHAT CONSTITUTES UNDERSTANDING WAIVER."  IBID.
WHERE THE DEBTOR IS AN ATTORNEY, AN AFFIDAVIT TO THAT EFFECT MAY BE ALL
THAT IS NECESSARY TO PROVE UNDERSTANDING, BUT WHERE THE DEBTOR IS NOT A
HIGH SCHOOL GRADUATE MORE PROOF "MAY BE REQUIRED."  ID., AT 1101.  A
"STATEWIDE RULE OR LEGISLATION PROVIDING FOR THE FILING OF PROOF OF
INTENTIONAL, UNDERSTANDING AND VOLUNTARY CONSENT," IN ORDER TO COMPLY
WITH THE COURT'S OPINION, WAS AMONG THE METHODS AVAILABLE TO THE STATE
TO PERMIT CONTINUED USE OF THE CONFESSION-OF-JUDGMENT CLAUSE.  ID., AT
1100-1101, N. 24. 

8.  NO JUDGMENT BY CONFESSION MAY BE ENTERED AS TO A MEMBER OF THE
RECOGNIZED CLASS AFTER NOVEMBER 1, 1970, UNLESS IT IS SHOWN THAT AT THE
TIME OF EXECUTING THE DOCUMENT THE DEBTOR "INTENTIONALLY,
UNDERSTANDINGLY, AND VOLUNTARILY WAIVED" HIS RIGHTS LOST UNDER THE
PENNSYLVANIA LAW.  ID., AT 1102-1103. 

9.  LIENS OF JUDGMENTS RECORDED PRIOR TO JUNE 1, 1970 (THE DATE OF THE
FILING OF THE COURT'S OPINION), WERE PRESERVED.  A CONFESSED JUDGMENT
ON A CONTRACT SIGNED BEFORE JUNE 1 COULD BE ENTERED BETWEEN THAT DATE
AND NOVEMBER 1, BUT COULD NOT BE EXECUTED UPON WITHOUT A PRIOR HEARING
TO DETERMINE THE VALIDITY OF THE WAIVER. 

THE COURT THEN DECLARED THE PENNSYLVANIA PRACTICE OF CONFESSING
JUDGMENTS TO BE UNCONSTITUTIONAL, PROSPECTIVELY EFFECTIVE AS OF THE
DATES STATED, AS APPLIED TO THE CLASS DESIGNATED, AND ENJOINED THE
ENTRY OF ANY CONFESSED JUDGMENT AGAINST A MEMBER OF THE CLASS IN THE
ABSENCE OF A SHOWING OF THE REQUIRED WAIVER.  /3/  ID., AT 1103.  THE
JUDGE DISSENTING DID SO AS TO THE LIMITATION OF RELIEF TO THOSE EARNING
LESS THAN $10,000 ANNUALLY.  ID., AT 1102.              III 

FROM THIS JUDGMENT ONLY THE PLAINTIFFS APPEAL.  THEIR CLAIM IS THAT
THE DISTRICT COURT ERRED IN CONFINING THE RELIEF IT GRANTED TO CERTAIN
MEMBERS OF THE APPELLANTS' PROFFERED CLASS AND THAT THE COURT SHOULD
HAVE DECLARED THE PENNSYLVANIA RULES AND STATUTES UNCONSTITUTIONAL ON
THEIR FACE.  A HOLDING OF FACIAL UNCONSTITUTIONALITY, OF COURSE, WHOLLY
APART FROM ANY CLASS CONSIDERATION, WOULD AFFORD RELIEF TO EVERY
PENNSYLVANIA COGNOVIT OBLIGOR.  TODAY'S DECISION IN OVERMYER, ALTHOUGH
IT CONCERNS A CORPORATE AND NOT AN INDIVIDUAL DEBTOR, IS ADVERSE TO
THIS CONTENTION OF THE PLAINTIFF-APPELLANTS.  IN OVERMYER IT IS
RECOGNIZED, AS THE DISTRICT COURT IN THIS CASE RECOGNIZED, THAT, UNDER
APPROPRIATE CIRCUMSTANCES, A COGNOVIT DEBTOR MAY BE HELD EFFECTIVELY
AND LEGALLY TO HAVE WAIVED THOSE RIGHTS HE WOULD POSSESS IF THE
DOCUMENT HE SIGNED HAD CONTAINED NO COGNOVIT PROVISION. 

ON THE PLAINTIFF-APPELLANTS' APPEAL, THEREFORE, THE JUDGMENT OF THE
DISTRICT COURT MUST BE AFFIRMED. 

THIS AFFIRMANCE, HOWEVER, DOES NOT MEAN THAT THE DISTRICT COURT'S
OPINION AND JUDGMENT ARE APPROVED AS TO THEIR OTHER ASPECTS AND DETAILS
THAT ARE NOT BEFORE US.  AS HAS BEEN NOTED, THE NAMED DEFENDANTS AND
THE INTERVENORS HAVE TAKEN NO CROSS APPEAL.  FURTHERMORE, THE
PENNSYLVANIA ATTORNEY GENERAL'S OFFICE, APPARENTLY DUE TO AN INTERIM
PERSONNEL CHANGE, NO LONGER SUPPORTS THE POSITION TAKEN AT THE TRIAL BY
THE CITY SOLICITOR AND THE DEPUTY ATTORNEY GENERAL AND, NOT CHOOSING TO
PURSUE ITS CUSTOMARILY ASSUMED DUTY TO DEFEND THE COMMONWEALTH'S
LEGISLATION, NOW JOINS THE APPELLANTS IN URGING HERE THAT THE RULES AND
STATUTES ARE FACIALLY INVALID.  WITH THE ATTORNEY GENERAL TAKING THIS
POSITION, ARGUMENT ON THE SIDE OF THE DEFENDANT-APPELLEES HAS BEEN
PRESENTED TO US ONLY BY THE INTERVENOR FINANCE COMPANIES AND BY AMICI. 
THE PERMISSIBLE REACH OF THIS OPPOSITION, HOWEVER, COINCIDES WITH AND
GOES NO FURTHER THAN THE EXTENT OF THE APPELLANTS' APPEAL.  IN THE
ABSENCE OF A CROSS APPEAL, THE OPPOSITION IS IN NO POSITION TO ATTACK
THOSE PORTIONS OF THE DISTRICT COURT'S JUDGMENT THAT ARE FAVORABLE TO
THE PLAINTIFF-APPELLANTS. 

        IV 

THE DECISION IN OVERMYER AND THE DISPOSITION OF THE PRESENT APPEAL
PROMPT THE FOLLOWING OBSERVATIONS." 

1.  IN OUR SECOND CONCLUDING COMMENT IN OVERMYER, SUPRA, AT 188, WE
STATE THAT THE DECISION IS "NOT CONTROLLING PRECEDENT FOR OTHER FACTS
OF OTHER CASES," AND WE REFER TO CONTRACTS OF ADHESION, TO BARGAINING
POWER DISPARITY, AND TO THE ABSENCE OF ANYTHING RECEIVED IN RETURN FOR
A COGNOVIT PROVISION.  WHEN FACTORS OF THIS KIND ARE PRESENT, WE
INDICATE, "OTHER LEGAL CONSEQUENCES MAY ENSUE."  THAT CAVEAT HAS
POSSIBLE PERTINENCY FOR PARTICIPANTS IN THE PENNSYLVANIA SYSTEM. 

2.  OVERMYER NECESSARILY REVEALS SOME DISCOMFITURE ON OUR PART WITH
RESPECT TO THE PRESENT CASE.  HOWEVER THAT MAY BE, THE IMPACT AND
EFFECT OF OVERMYER UPON THE PENNSYLVANIA SYSTEM ARE NOT TO BE
DELINEATED IN THE ONE-SIDED APPEAL IN THIS CASE AND WE MAKE NO ATTEMPT
TO DO SO. 

3.  PROBLEMS OF THIS KIND ARE PECULIARLY APPROPRIATE GRIST FOR THE
LEGISLATIVE MILL. 

ON THE APPELLANTS' APPEAL, THE JUDGMENT OF THE DISTRICT COURT IS
AFFIRMED.  THE STAY HERETOFORE GRANTED BY THE CIRCUIT JUSTICE IS
DISSOLVED. 

    IT IS SO ORDERED. 

/1/  PA. RULES CIV. PROC. 2950-2976, EFFECTIVE JAN. 1, 1970 (WHICH,
BY THE ACT OF JUNE 21, 1937, PA. LAWS 1982, HAVE THE EFFECT OF STATE
STATUTES); ACT OF APR. 14, 1834, PA. STAT. ANN., TIT. 17, SEC. 1482
III; ACT OF FEB. 24, 1806, PA. STAT. ANN., TIT. 12, SEC. 739; ACT OF
MAR. 21, 1806, PA. STAT. ANN., TIT. 12, SEC. 738.  BY RULE 2976, PA.
STAT. ANN., TIT. 12, SEC. 739 IS SUSPENDED "ONLY INSOFAR AS IT MAY BE
INCONSISTENT WITH THESE RULES," AND PA. STAT. ANN., TIT. 12, SEC. 738
IS SUSPENDED IN ITS APPLICATION TO ACTIONS TO CONFESS JUDGMENT FOR
MONEY OR FOR POSSESSION OF REAL PROPERTY. 

/2/  PRIOR TO THE EFFECTIVE DATE OF RULES 2950-2976, PA. STAT. ANN.,
TIT. 12, SEC. 738 PROVIDED THAT IT "SHALL BE THE DUTY" OF THE
PROTHONOTARY TO ENTER AN APPLICATION AND "ON CONFESSION IN WRITING . .
. HE SHALL ENTER JUDGMENT . . . . " 

/3/  COMPARE THE RESULT REACHED WITH RESPECT TO THE DELAWARE SYSTEM
IN OSMOND V. SPENCE, 327 F.SUPP.  1349 (DEL. 1971). 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE WHITE, CONCURRING. 

I JOIN IN THE OPINION OF THE COURT AND ADD THESE COMMENTS ABOUT A
NARROW ASPECT OF THE CASE. 

IT IS TRUE THAT THIS COURT HAS NO JURISDICTION OF THAT PORTION OF
THE DISTRICT COURT'S JUDGMENT FROM WHICH NO APPEAL OR CROSS-APPEAL WAS
TAKEN.  MORLEY CONSTRUCTION CO. V. MARYLAND CASUALTY CO., 300 U.S. 185,
191-192 (1937); CF. UNITED STATES V. RAINES, 362 U.S. 17, 27 N. 7
(1960).  BUT IT IS ALSO WELL ESTABLISHED THAT THE PREVAILING PARTY
BELOW NEED NOT CROSS-APPEAL TO ENTITLE HIM TO SUPPORT THE JUDGMENT IN
HIS FAVOR ON GROUNDS EXPRESSLY REJECTED BY THE COURT BELOW.  WALLING V.
GENERAL INDUSTRIES CO., 330 U.S. 545 (1947); LANGNES V. GREEN, 282 U.S.
531, 534-539 (1931); UNITED STATES V. AMERICAN RAILWAY EXPRESS CO., 265
U.S. 425, 435-436 (1924); AND THE COURT MAY NOTICE A PLAIN ERROR IN THE
RECORD THAT DISPOSES OF A JUDGMENT BEFORE IT.  REYNOLDS V. UNITED
STATES, 98 U.S. 145, ADDENDUM N. TO OP., PP. 168-169 (1879).  THUS,
DESPITE THE FACT THAT APPELLEE-INTERVENORS DID NOT CROSS-APPEAL, THEY
WERE FREE TO SUPPORT THAT PART OF THE JUDGMENT IN THEIR FAVOR ON
GROUNDS THAT WERE PRESENTED AND REJECTED BY THE DISTRICT COURT IN
ARRIVING AT AN ADVERSE JUDGMENT ON OTHER ASPECTS OF THE CASE.  THOSE
GROUNDS, IF SUSTAINED, WOULD NOT AFFECT THE FINALITY OF THE UNAPPEALED
JUDGMENT, BUT THEY WOULD, IF SUFFICIENT, BE AVAILABLE TO SUPPORT THE
JUDGMENT OF THE DISTRICT COURT INSOFAR AS IT IS CHALLENGED HERE. 
NOTHING TO THE CONTRARY IS TO BE INFERRED FROM OUR AFFIRMANCE OF THAT
JUDGMENT ON OTHER GROUNDS.  AT LEAST THAT IS MY UNDERSTANDING OF THE
COURT'S OPINION, WHICH I JOIN. 

MR. JUSTICE DOUGLAS, DISSENTING PART. 

PENNSYLVANIA PERMITS CREDITORS TO EXTRACT FROM DEBTORS THEIR CONSENT
TO A CONFESSION-OF-JUDGMENT PROCEDURE WHICH, WHILE NOT RENDERING
DEBTORS COMPLETELY DEFENSELESS, DEPRIVES THEM OF MANY OF THE SAFEGUARDS
OF ORDINARY CIVIL PROCEDURE.  A GROUP OF LOW-INCOME PLAINTIFFS ASKED
THE THREE-JUDGE COURT BELOW TO ENJOIN THE FURTHER OPERATION OF THIS
SCHEME ON THE GROUND THAT DEBTORS WHO CONSENTED TO THIS ABBREVIATED
FORM OF JUSTICE DID SO UNWITTINGLY OR DID SO OUT OF COMPULSION SUPPLIED
BY THE STANDARD FORM OF ADHESION CONTRACTS.  THE DISTRICT COURT GRANTED
LIMITED RELIEF, HOLDING THAT THE SCHEME WORKED A DENIAL OF PROCEDURAL
DUE PROCESS ONLY WHEN APPLIED TO INDIVIDUAL DEBTORS WHO EARNED LESS
THAN $10,000 ANNUALLY AND WHO ENTERED INTO NONMORTGAGE CREDIT
TRANSACTIONS, EXCEPT WHERE IT IS SHOWN PRIOR TO JUDGMENT THAT THEIR
WAIVERS HAD BEEN KNOWING AND VOLUNTARY.  THE PLAINTIFFS HAVE APPEALED,
ARGUING THAT THE LOWER COURT SHOULD HAVE INVALIDATED THE REGIME ON ITS
FACE AND THAT, IN ANY EVENT, CLASS RELIEF WAS WRONGLY DENIED BOTH TO
PERSONS EARNING MORE THAN $10,000 YEARLY AND TO HOME MORTGAGORS. 

THE COMMONWEALTH DID NOT CROSS-APPEAL BUT INSTEAD NOW CONFESSES THAT
THE SCHEME IS UNCONSTITUTIONAL AND AGREES SUBSTANTIALLY WITH THE
APPELLANTS.  VARIOUS LENDING INSTITUTIONS INTERVENED BELOW BUT HAVE NOT
TAKEN CROSS-APPEALS.  /1/  WHEN THE APPEAL WAS FILED IN THIS COURT,
THEY DID, HOWEVER, FILE A MOTION TO DISMISS THAT CONTAINED AN ARGUMENT
ON THE LAW GOVERNING THE MAIN FACETS OF THE CASE.  MOREOVER, AT THE
REQUEST OF THIS COURT THEY FILED A BRIEF, MAINTAINING THAT THE DISTRICT
COURT CORRECTLY EXCLUDED MORTGAGE BORROWERS AND CONSUMER BORROWERS WITH
INCOMES IN EXCESS OF $10,000 FROM THE CLASS BENEFITED BY THE DECREE AND
THAT IT INCORRECTLY FOUND THAT THE PENNSYLVANIA COGNOVIT PROCEDURE WAS
UNCONSTITUTIONAL UNLESS THE DEBTOR KNOWINGLY AND UNDERSTANDINGLY
CONSENTED TO THE AUTHORIZATION TO CONFESS JUDGMENT. 

THE APPELLEES ARE THE COUNTY'S PROTHONOTARY AND SHERIFF AND THEY ARE
REPRESENTED HERE BY THE ATTORNEY GENERAL OF PENNSYLVANIA WHO CONCEDES
BEFORE US THAT THE STATE'S STATUTES IN QUESTION ARE UNCONSTITUTIONAL. 
NO ONE SUGGESTS, HOWEVER, THAT THERE IS LACKING A CASE OR CONTROVERSY. 
APPELLANTS SAY THE DISTRICT COURT DID NOT GO FAR ENOUGH.  WHETHER WE
AFFIRM, MODIFY, OR REVERSE, THE DECREE OF THE DISTRICT COURT HAS AN
ONGOING LIFE.  IT HAS NOT BECOME MOTT.  LARGE INTERESTS RIDE ON THE
OUTCOME OF THIS IMPORTANT LITIGATION. 

IT IS SAID, HOWEVER, THAT THE CASE IS NOT APPROPRIATE FOR REVIEW. 
WE REFUSE TO LET CONFESSIONS OF ERROR CONCLUSIVELY GOVERN THE
DISPOSITION OF CASES, ACTING ONLY AFTER OUR EXAMINATION OF THE RECORD. 
/2/  WE HAVE REMANDED FOR RECONSIDERATION IN LIGHT OF A CONFESSION OF
ERROR.  IN YOUNG V. UNITED STATES, 315 U.S. 257 (1942), HOWEVER, WE
DECLINED TO REMAND BUT INSTEAD INCORPORATED INTO OUR HOLDING THE THEORY
ADVANCED BY THE SOLICITOR GENERAL IN SUPPORT OF THE PETITIONER. 
OBVIOUSLY A REMAND DOES NOT BIND THE COURTS TO THE PARTIES' VIEW AS TO
WHAT THE LAW IS. 

"THE CONSIDERED JUDGMENT OF THE LAW ENFORCEMENT OFFICERS THAT
REVERSIBLE ERROR HAS BEEN COMMITTED IS ENTITLED TO GREAT WEIGHT, BUT
OUR JUDICIAL OBLIGATIONS COMPEL US TO EXAMINE INDEPENDENTLY THE ERRORS
CONFESSED."  ID., AT 258-259. 

AS WE STATED IN SIBRON V. NEW YORK, 392 U.S. 40, 58: 

"IT IS THE UNIFORM PRACTICE OF THIS COURT TO CONDUCT ITS OWN
EXAMINATION OF THE RECORD IN ALL CASES WHERE THE FEDERAL GOVERNMENT OR
A STATE CONFESSES THAT A CONVICTION HAS BEEN ERRONEOUSLY OBTAINED." 

THAT IS THE PRACTICE IN CIVIL CASES ALSO.  CATES V. HADERLEIN, 342
U.S. 804. 

MOREOVER, ONCE A CASE IS PROPERLY HERE, OUR DISPOSITION DOES NOT
NECESSARILY FOLLOW THE RECOMMENDATIONS OR CONCESSIONS OF THE PARTIES. 
UTAH COMM'N V. EL PASO GAS CO., 395 U.S. 464, 468-469.  IN THAT CASE,
THE APPELLANT CHANGED ITS VIEW OF THE MERITS AFTER THE CASE REACHED US
AND, LIKE THE APPELLEE, THOUGHT THE APPEAL SHOULD BE DISMISSED.  AN
AMICUS, HOWEVER, PRESENTED CONTRARY VIEWS.  WE CONCLUDED THAT THE
DECREE OF THE DISTRICT COURT, AFTER OUR PRIOR REMAND, DID NOT COMPLY
WITH OUR ORDER.  CONSENSUS OF THE PARTIES DOES NOT, IN OTHER WORDS,
CONTROL OUR DECISIONMAKING PROCESS.  /3/ 

THE COURT, TO BE SURE, APPROVES THAT PART OF THE DISTRICT COURT'S
OPINION WHICH HOLDS THAT THE PENNSYLVANIA CONFESSION-OF-JUDGMENT SCHEME
CANNOT CONSTITUTIONALLY BE APPLIED TO THE CLASS OF PENNSYLVANIA
RESIDENTS WHO EARN LESS THAN $10,000 ANNUALLY AND WHO ENTER INTO
NONMORTGAGE CREDIT TRANSACTIONS, UNLESS PRIOR TO JUDGMENT IT IS SHOWN
THAT THEY VOLUNTARILY AND KNOWINGLY EXECUTED SUCH INSTRUMENTS
PURPORTING TO WAIVE TRIAL AND APPEAL.  ON THE OTHER HAND, THE COURT NOW
AFFIRMS WITHOUT DISCUSSION THE REFUSALS OF THE DISTRICT COURT (1) TO
EXTEND SIMILAR CLASS RELIEF TO CONFESSED DEBTORS WHO EITHER ENTER INTO
MORTGAGE TRANSACTIONS OR WHO EARN MORE THAN $10,000 YEARLY, AND (2) TO
DECLARE THE STATUTES FACIALLY UNCONSTITUTIONAL.  314 F.SUPP.  1091,
1102-1103, 1112 (1970). 

IT IS ANOMALOUS THAT AN APPELLEE BY CONFESSING ERROR CAN DEFEAT AN
APPEAL.  IN THE INSTANT CASE WE HAVE NOT BEEN HANDICAPPED BY THE
APPELLEES'  REFUSAL TO OPPOSE THE JUDGMENT BELOW.  FINANCE COMPANIES
INTERVENED IN THE DISTRICT COURT.  WE HAVE BEEN FULLY INFORMED BY THEM
AND BY AMICI OF THE MANY FACETS OF THIS CONTROVERSY.  WE SHOULD
THEREFORE DISCUSS THE MERITS AND REACH ALL ISSUES TENDERED. 

/1/  THE ABSENCE OF A CROSS-APPEAL MEANS ONLY THAT THE APPELLATE
COURT WILL NOT UPSET ANY PORTION OF THE LOWER COURT'S JUDGMENT NOT
CHALLENGED BY THE APPEAL.  AS STATED BY MR. JUSTICE CARDOZO IN MORLEY
CONSTRUCTION CO. V. MARYLAND CASUALTY CO., 300 U.S. 185, 191-192. 

"WITHOUT A CROSS-APPEAL, AN APPELLEE MAY 'URGE IN SUPPORT OF A
DECREE ANY MATTER APPEARING IN THE RECORD ALTHOUGH HIS ARGUMENT MAY
INVOLVE AN ATTACK UPON THE REASONING OF THE LOWER COURT OR AN
INSISTENCE UPON MATTER OVERLOOKED OR IGNORED BY IT.'  UNITED STATES V.
AMERICAN RAILWAY EXPRESS CO., 265 U.S. 425, 435.  WHAT HE MAY NOT DO IN
THE ABSENCE OF A CROSS-APPEAL IS TO 'ATTACK THE DECREE WITH A VIEW
EITHER TO ENLARGING HIS OWN RIGHTS THEREUNDER OR OF LESSENING THE
RIGHTS OF HIS ADVERSARY, WHETHER WHAT HE SEEKS IS TO CORRECT AN ERROR
OR TO SUPPLEMENT THE DECREE WITH RESPECT TO A MATTER NOT DEALT WITH
BELOW.'  IBID.  THE RULE IS INVETERATE AND CERTAIN.  . . . FINDINGS MAY
BE REVISED AT THE INSTANCE OF AN APPELLANT, IF THEY ARE AGAINST THE
WEIGHT OF EVIDENCE, WHERE THE CASE IS ONE IN EQUITY.  THIS DOES NOT
MEAN THAT THEY ARE SUBJECT TO LIKE REVISION IN BEHALF OF APPELLEES, AT
ALL EVENTS IN CIRCUMSTANCES WHERE A REVISION OF THE FINDINGS CARRIES
WITH IT AS AN INCIDENT A REVISION OF THE JUDGMENT.  THERE IS NO NEED AT
THIS TIME TO FIX THE LIMITS OF THE RULE MORE SHARPLY.  'WHERE EACH
PARTY APPEALS EACH MAY ASSIGN ERROR, BUT WHERE ONLY ONE PARTY APPEALS
THE OTHER IS BOUND BY THE DECREE IN THE COURT BELOW, AND HE CANNOT
ASSIGN ERROR IN THE APPELLATE COURT, NOR CAN HE BE HEARD IF THE
PROCEEDINGS IN THE APPEAL ARE CORRECT, EXCEPT IN SUPPORT OF THE DECREE
FROM WHICH THE APPEAL OF THE OTHER PARTY IS TAKEN.'" 

/2/  MAYBERRY V. PENNSYLVANIA, 382 U.S. 286 (1965); NICHOLSON V.
BOLES, 375 U.S. 25 (1963).  SEE R. STERN & E. GRESSMAN, SUPREME COURT
PRACTICE 224-225 (4TH ED. 1969). 

/3/  CF. CALIFORNIA WELFARE RIGHTS ORGANIZATION V. SUPERIOR COURT OF
ALAMEDA COUNTY, 5 CAL.3D 730, 488 P.2D 953 (1971), WHERE A STATE
OFFICIAL AGAINST WHOM AN ADVERSE JUDGMENT HAD BEEN OBTAINED TOOK NO
APPEAL; BUT THE JUDGMENT WAS CHALLENGED IN CALIFORNIA BY AN "AGGRIEVED"
ORGANIZATION WHICH HAD BEEN DENIED INTERVENTION IN THE LOWER COURT AND
WHICH APPEALED BOTH FROM THE DENIAL OF INTERVENTION AND FROM THE
JUDGMENT ON THE MERITS.  THE CALIFORNIA SUPREME COURT REVERSED ON THE
MERITS.     DAVID A. SCHOLL ARGUED THE CAUSE FOR APPELLANTS PRO HAC
VICE.  WITH HIM ON THE BRIEFS WAS HARVEY N. SCHMIDT. 

PHILIP C. PATTERSON ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF FOR APPELLEES MIDDLE ATLANTIC FINANCE ASSN. ET AL. WAS MARVIN
COMISKY.  J. SHANE CREAMER, ATTORNEY GENERAL, AND BARRY A. ROTH,
ASSISTANT DEPUTY ATTORNEY GENERAL, FILED A BRIEF FOR APPELLEE THE
COMMONWEALTH OF PENNSYLVANIA. 

WILLIAM L. MATZ ARGUED THE CAUSE FOR THE PENNSYLVANIA SAVINGS & LOAN
LEAGUE AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF WAS
HERBERT BASS.     BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY
DON B. KATES, JR., MARTIN R. GLICK, AND CAROL RUTH SILVER FOR
CALIFORNIA RURAL LEGAL ASSISTANCE ET AL.; BY JOHN J. BRENNAN AND GORDON
W. GERBER FOR THE PENNSYLVANIA BANKERS ASSN.; BY DAVID M. JONES FOR THE
PENNSYLVANIA CREDIT UNION LEAGUE; AND BY EDWARD DONALD FOSTER AND BLAIR
C. SHICK FOR THE NATIONAL CONSUMER LAW CENTER. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY MATTHEW HALE
FOR THE AMERICAN BANKERS ASSN., AND BY GILBERT NURICK AND MOSES K.
ROSENBERG FOR THE PENNSYLVANIA LAND TITLE ASSN.
..END :












RICHARDSON V. WRIGHT, 405 U.S. 208 


       RICHARDSON, SECRETARY OF HEALTH, EDUCATION, AND WELFARE V.

           WRIGHT ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA

        NO. 70-161.  ARGUED JANUARY 13, 1972-- DECIDED FEBRUARY 24,

           1972  /0/ 


IN LIGHT OF THE ADOPTION OF NEW REGULATIONS PROVIDING THAT A
RECIPIENT OF DISABILITY BENEFIT PAYMENTS PURSUANT TO SEC. 225 OF THE
SOCIAL SECURITY ACT BE GIVEN NOTICE OF A PROPOSED SUSPENSION OF
PAYMENTS AND THE REASONS THEREFOR, PLUS AN OPPORTUNITY TO SUBMIT
REBUTTAL EVIDENCE, THE JUDGMENT IS VACATED TO PERMIT REPROCESSING,
UNDER THE NEW REGULATIONS, OF THE DISPUTED DETERMINATIONS. 

321 F.SUPP.  383, VACATED AND REMANDED. 

PER CURIAM. 

WE NOTED PROBABLE JURISDICTION OF THESE APPEALS, 404 U.S. 819
(1971), TO CONSIDER THE APPLICABILITY OF GOLDBERG V. KELLY, 397 U.S.
254 (1970), TO THE SUSPENSION AND TERMINATION OF DISABILITY BENEFIT
PAYMENTS PURSUANT TO SEC. 225 OF THE SOCIAL SECURITY ACT, 70 STAT. 817,
42 U.S.C. 425, AND IMPLEMENTING REGULATIONS OF THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE.  SHORTLY BEFORE ORAL ARGUMENT, WE WERE
ADVISED THAT THE SECRETARY HAD ADOPTED NEW REGULATIONS, EFFECTIVE
DECEMBER 27, 1971, GOVERNING THE PROCEDURES TO BE FOLLOWED BY THE
SOCIAL SECURITY ADMINISTRATION IN DETERMINING WHETHER TO SUSPEND OR
TERMINATE DISABILITY BENEFITS.  THESE PROCEDURES INCLUDE THE
REQUIREMENT THAT A RECIPIENT OF BENEFITS BE GIVEN NOTICE OF A PROPOSED
SUSPENSION AND THE REASONS THEREFOR, PLUS AN OPPORTUNITY TO SUBMIT
REBUTTAL EVIDENCE.  IN LIGHT OF THAT DEVELOPMENT, WE BELIEVE THAT THE
APPROPRIATE COURSE IS TO WITHHOLD JUDICIAL ACTION PENDING REPROCESSING,
UNDER THE NEW REGULATIONS, OF THE DETERMINATIONS HERE IN DISPUTE.  IF
THAT PROCESS RESULTS IN A DETERMINATION OF ENTITLEMENT TO DISABILITY
BENEFITS, THERE WILL BE NO NEED TO CONSIDER THE CONSTITUTIONAL CLAIM
THAT CLAIMANTS ARE ENTITLED TO AN OPPORTUNITY TO MAKE AN ORAL
PRESENTATION.  IN THE CONTEXT OF A COMPREHENSIVE COMPLEX ADMINISTRATIVE
PROGRAM, THE ADMINISTRATIVE PROCESS MUST HAVE A REASONABLE OPPORTUNITY
TO EVOLVE PROCEDURES TO MEET NEEDS AS THEY ARISE.  ACCORDINGLY, WE
VACATE THE JUDGMENT OF THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA,
321 F.SUPP.  383 (1971), WITH DIRECTION TO THAT COURT TO REMAND THE
CAUSE TO THE SECRETARY AND TO RETAIN JURISDICTION FOR SUCH FURTHER
PROCEEDINGS, IF ANY, AS MAY BE NECESSARY UPON COMPLETION OF THE
ADMINISTRATIVE PROCEDURE. 

VACATED AND REMANDED. 

/0/  TOGETHER WITH NO. 70-5211, WRIGHT ET AL. V. RICHARDSON,
SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ALSO ON APPEAL FROM THE
SAME COURT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHILE I JOIN MR. JUSTICE BRENNAN WHO REACHES THE MERITS, I ADD A
WORD ABOUT THE UNWISDOM OF THE POLICY PURSUED BY THE COURT. 

A THREE-JUDGE DISTRICT COURT HELD SEC. 225 OF THE SOCIAL SECURITY
ACT, 42 U.S.C. 425, UNCONSTITUTIONAL, INSOFAR AS IT PURPORTED TO
AUTHORIZE THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE TO SUSPEND
THE PAYMENT OF SOCIAL SECURITY DISABILITY BENEFITS WITHOUT GIVING PRIOR
NOTICE AND "AN OPPORTUNITY TO PARTICIPATE" TO THE DISABILITY
BENEFICIARY.  321 F.SUPP.  383, 386.  THE COURT REMANDED THE CAUSE TO
THE SECRETARY FOR THE FORMULATION OF NEW PROCEDURES CONSISTENT WITH ITS
OPINION.  JUDGE MATTHEWS, TROUBLED BY AN IMPLICATION IN THE MAJORITY'S
OPINION THAT PARTICIPATION MERELY BY WAY OF WRITTEN SUBMISSIONS MIGHT
SATISFY THE MAJORITY'S NOTIONS OF DUE PROCESS, DISSENTED "FROM SO MUCH
OF THE OPINION AS SEEMS TO SUGGEST THAT THE PROCEDURAL REQUIREMENTS OF
DUE PROCESS MAY BE SATISFIED WITH SOMETHING LESS THAN THE 'OPPORTUNITY'
(TO PARTICIPATE) SPECIFIED IN (GOLDBERG V. KELLY, 397 U.S. 254)."  ID.,
AT 388.  WE NOTED PROBABLE JURISDICTION IN THESE CROSS-APPEALS TO
EVALUATE THE OPINION BELOW IN LIGHT OF GOLDBERG.  404 U.S. 819. 

NOW, HOWEVER, IT IS SUGGESTED THAT THE SECRETARY HAS SO FAR COMPLIED
WITH THE INSTRUCTIONS OF THE DISTRICT COURT TO FORMULATE NEW PROCEDURES
THAT WE SHOULD REMAND THE CASES TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN LIGHT OF THESE NEW REQUIREMENTS.  SUCH A COURSE, I
SUBMIT, WOULD BE A PERVERSION OF THE PHILOSOPHY OF DUE PROCESS THAT WE
EXPRESSED IN GOLDBERG. 

JUDGE MATTHEWS, BELOW, CAPTURED THE ESSENCE OF GOLDBERG IN HER BRIEF
PARTIAL DISSENT: 

"IN GOLDBERG THE SUPREME COURT HELD THAT A WELFARE RECIPIENT, IN
ADDITION TO TIMELY AND ADEQUATE NOTICE DETAILING THE REASONS FOR A
PROPOSED TERMINATION OF BENEFITS, MUST HAVE 'AN EFFECTIVE OPPORTUNITY
TO DEFEND BY CONFRONTING ANY ADVERSE WITNESSES AND BY PRESENTING HIS
OWN ARGUMENTS AND EVIDENCE ORALLY.'"  321 F.SUPP.,AT 387-388.  IT
CANNOT SERIOUSLY BE ARGUED THAT THE SECRETARY'S "NEW RULES" COMPORT
WITH GOLDBERG.  THEY MAY CURE THE NOTICE DEFECT, BUT THEY MAKE NO
PROVISION WHATSOEVER FOR THE PRESENTATION OF ORAL TESTIMONY OR THE
CONFRONTATION OF WITNESSES.  /1/  WE NOTED PROBABLE JURISDICTION, I
THOUGHT, TO DETERMINE IF THE DIFFERENCE BETWEEN "WELFARE" PAYMENTS AND
"DISABILITY"  PAYMENTS IS SUFFICIENT TO SAY THAT ONE'S FIFTH AMENDMENT
RIGHT TO BE HEARD MAY BE SATISFIED BY AN OPPORTUNITY TO MAKE WRITTEN
SUBMISSIONS IN THE LATTER CASE, ALTHOUGH NOT IN THE FORMER.  /2/  WE
HEARD ORAL ARGUMENT ON THIS BASIS.  BECAUSE OF THE INADEQUACY OF THE
NEW RULES, IN LIGHT OF GOLDBERG, THE QUESTION WILL REMAIN REGARDLESS OF
THE OUTCOME OF A REMAND. 

I THINK IT UNSEEMLY, NEEDLESSLY TO SHUTTLE ANY LITIGANT, ESPECIALLY
AN INDIGENT, BACK AND FORTH FROM COURT TO COURT, HOPING THAT HIS
EXHAUSTION OF NEWLY CREATED REMEDIES WILL SOMEHOW OR OTHER MAKE HIS
PROBLEM DISAPPEAR AND RELIEVE US OF AN OBLIGATION.  NO CONCESSION
PROMISING JUSTICE TO THE CLAIMANTS HAS BEEN MADE.  THE ISSUE OF DUE
PROCESS WAS PROPERLY RAISED AND IS HERE FOR DECISION; AND ALL THE
REQUIREMENTS OF CASE OR CONTROVERSY WITHIN THE MEANING OF ART. III OF
THE CONSTITUTION HAVE BEEN SATISFIED. 

/1/  THE NEW PROVISIONS WERE ISSUED AS AMENDMENTS TO THE DISABILITY
INSURANCE STATE MANUAL (DISM).  DISM SEC. 265.1D NOW REQUIRES STATE
AGENCIES TO INFORM A BENEFICIARY OF A PROPOSED SUSPENSION OF BENEFITS,
AND THE REASONS THEREFOR, BEFORE IT FORMALLY REQUESTS THE BUREAU OF
DISABILITY INSURANCE TO AUTHORIZE THE SUSPENSION.  THE BENEFICIARY MUST
ALSO BE GIVEN AN OPPORTUNITY TO SUBMIT REBUTTAL EVIDENCE.  IBID.  BUT
THE "OPPORTUNITY" CONTEMPLATED BY THIS SECTION, AND THE SIMILAR
PROVISIONS RESPECTING CESSATION OF BENEFITS (DISM SEC. 353.6A),
ENCOMPASS ONLY WRITTEN SUBMISSIONS. 

/2/  THIS CAUSE, HOWEVER, LIKE GOLDBERG, "PRESENTS NO QUESTION
REQUIRING OUR DETERMINATION WHETHER DUE PROCESS REQUIRES ONLY AN
OPPORTUNITY FOR WRITTEN SUBMISSION, OR AN OPPORTUNITY BOTH FOR WRITTEN
SUBMISSION AND ORAL ARGUMENT, WHERE THERE ARE NO FACTUAL ISSUES IN
DISPUTE OR WHERE THE APPLICATION OF THE RULE OF LAW IS NOT INTERTWINED
WITH FACTUAL ISSUES."  397 U.S.,AT 268 N. 15.  DISABILITY CASES, LIKE
WELFARE CASES, INVARIABLY TURN ON DIFFICULT AND COMPLEX RESOLUTIONS OF
HOTLY DISPUTED FACTUAL QUESTIONS.  SEE, E.G., UNDERWOOD V. RIBICOFF,
298 F.2D 850, 851 (CA4 1962). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

I RESPECTFULLY DISSENT.  THE COURT JUSTIFIES TODAY'S SUA SPONTE
ACTION ON THE GROUND THAT IF REPROCESSING UNDER THE SECRETARY'S NEW
REGULATIONS "RESULTS IN A DETERMINATION OF ENTITLEMENT TO DISABILITY
BENEFITS, THERE WILL BE NO NEED TO CONSIDER THE CONSTITUTIONAL CLAIM
THAT CLAIMANTS ARE ENTITLED TO AN OPPORTUNITY TO MAKE AN ORAL
PRESENTATION."  AVOIDANCE OF UNNECESSARY CONSTITUTIONAL DECISIONS IS
CERTAINLY A PREFERRED PRACTICE WHEN APPROPRIATE.  BUT THAT COURSE IS
INAPPROPRIATE, INDEED IRRESPONSIBLE, IN THIS INSTANCE.  WE WILL NOT
AVOID THE NECESSITY OF DECIDING THE IMPORTANT CONSTITUTIONAL QUESTION
PRESENTED BY CLAIMANTS EVEN SHOULD THEY PREVAIL UPON THE SECRETARY'S
RECONSIDERATION.  THE QUESTION IS BEING PRESSED ALL OVER THE COUNTRY. 
THE SECRETARY'S BRIEF LISTS NO LESS THAN SEVEN CASES PRESENTING IT WITH
RESPECT TO DISABILITY BENEFITS AND 10 CASES PRESENTING IT WITH RESPECT
TO NONDISABILITY BENEFITS.  /1/ 

THE SECRETARY'S NEW REGULATIONS PERMIT DISCONTINUANCE OF DISABILITY
BENEFITS WITHOUT AFFORDING BENEFICIARIES PROCEDURAL DUE PROCESS EITHER
IN THE FORM MANDATED BY GOLDBERG V. KELLY, 397 U.S. 254 (1970), OR IN
THE FORM MANDATED BY THE DISTRICT COURT, 321 F.SUPP.  383 (DC 1971). 
THE REGULATIONS REQUIRE ONLY THAT THE BENEFICIARY BE INFORMED OF THE
PROPOSED SUSPENSION OR TERMINATION AND THE INFORMATION UPON WHICH IT IS
BASED AND BE GIVEN AN OPPORTUNITY TO SUBMIT A WRITTEN RESPONSE BEFORE
BENEFITS ARE CUT OFF.  /2/  THIS PROCEDURE DOES NOT AFFORD THE
BENEFICIARY, AS GOLDBERG REQUIRES FOR WELFARE AND OLD-AGE RECIPIENTS,
AN EVIDENTIARY HEARING AT WHICH HE MAY PERSONALLY APPEAR TO OFFER ORAL
EVIDENCE AND CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES.  NOR DOES
THE PROCEDURE SATISFY THE REQUIREMENTS OF DUE PROCESS AS DETERMINED BY
THE DISTRICT COURT.  THAT COURT HELD THAT THE BENEFICIARY MUST BE GIVEN
NOT ONLY NOTICE BUT ALSO, BEFORE HE RESPONDS, A "REASONABLE OPPORTUNITY
TO EXAMINE THE DOCUMENTARY EVIDENCE" UPON WHICH THE SECRETARY RELIES
AND, IN CASE OF CONFLICT IN THE EVIDENCE, A DECISION BY AN IMPARTIAL
DECISIONMAKER.  THE COURT SAID, HOWEVER, THAT AN EVIDENTIARY HEARING
AND OPPORTUNITY TO CONFRONT ADVERSE WITNESSES WERE NOT NECESSARY,
ALTHOUGH "A HEARING COULD BE HELD" IF THE BENEFICIARY "SUBMITTED SOME
EVIDENCE THAT CONTRADICTS THAT POSSESSED BY THE ADMINISTRATION."  321
F.SUPP.,AT 387.  THUS, UNDER BOTH GOLDBERG AND THE DISTRICT COURT'S
DECISION, THE OMISSIONS IN THE SECRETARY'S NEW REGULATIONS ARE FATAL TO
THE CONSTITUTIONAL ADEQUACY OF THE PROCEDURES.  BECAUSE WE MAY
IMMINENTLY BE CONFRONTED WITH ANOTHER CASE PRESENTING THE QUESTION, AND
BECAUSE ITS RESOLUTION IS VITALLY ESSENTIAL TO THE ADMINISTRATION OF AN
IMPORTANT GOVERNMENT PROGRAM, TODAY'S ACTION IN AVOIDING DECISION OF
THE CONSTITUTIONAL QUESTION IS NOT A RESPONSIBLE EXERCISE OF THAT
PRACTICE.  WE GAIN A BRIEF RESPITE FOR OURSELVES WHILE THE SECRETARY,
STATE AGENCIES, AND BENEFICIARIES CONTINUE CONFUSED AND UNCERTAIN. 
MOREOVER, THE QUESTION HAS BEEN THOROUGHLY AND ABLY ARGUED AND BRIEFED
ON BOTH SIDES, AND WE HAVE THE BENEFIT OF THOUGHTFUL AND WELL
CONSIDERED MAJORITY AND DISSENTING OPINIONS IN THE DISTRICT COURT. 
TODAY'S DISPOSITION RESULTS IN AN UNJUSTIFIED WASTE, NOT ONLY OF OUR
OWN ALL TOO SPARSE TIME AND ENERGIES, BUT ALSO OF THE TIME AND ENERGIES
OF THE THREE JUDGES OF THE DISTRICT COURT WHO MUST AGAIN SUSPEND THEIR
OWN HEAVY CALENDARS TO ASSEMBLE FOR WHAT CAN ONLY BE AN EMPTY
EXERCISE.  I CANNOT JOIN IN THE COURT'S ABDICATION OF OUR
RESPONSIBILITY TO DECIDE THIS CASE. 

BOTH THE BENEFICIARIES AND THE SECRETARY APPEAL FROM THE DISTRICT
COURT'S JUDGMENT.  THE BENEFICIARIES CONTEND THAT THE DISTRICT COURT
ERRED IN NOT HOLDING THAT THE PROCEDURE MUST AFFORD AN EVIDENTIARY
HEARING AS IN GOLDBERG.  THE SECRETARY CONTENDS THAT PROCEDURAL DUE
PROCESS REQUIREMENTS ARE SATISFIED BY THE "PAPER" HEARING AFFORDED BY
HIS NEW REGULATIONS.  I AGREE WITH THE BENEFICIARIES AND WOULD
THEREFORE VACATE THE JUDGMENT OF THE DISTRICT COURT AND REMAND WITH
DIRECTION TO ENTER A NEW JUDGMENT REQUIRING THE PROCEDURES HELD IN
GOLDBERG TO BE REQUISITE WITH RESPECT TO DISCONTINUANCE OF WELFARE AND
OLD-AGE BENEFITS.  SEE WHEELER V. MONTGOMERY, 397 U.S. 280 (1970). 

"(IF THE SECRETARY, ON THE BASIS OF INFORMATION OBTAINED BY OR
SUBMITTED TO HIM, BELIEVES THAT AN INDIVIDUAL ENTITLED TO BENEFITS . .
. MAY HAVE CEASED TO BE UNDER A DISABILITY, THE SECRETARY MAY SUSPEND
THE PAYMENT OF BENEFITS . . . UNTIL IT IS DETERMINED . . . WHETHER OR
NOT SUCH INDIVIDUAL'S DISABILITY HAS CEASED OR UNTIL THE SECRETARY
BELIEVES THAT SUCH DISABILITY HAS NOT CEASED."  THE DISTRICT COURT HELD
THE STATUTE UNCONSTITUTIONAL ON THE GROUND THAT "(THE EX-PARTE
SUSPENSION POWER GRANTED TO THE SECRETARY BY SECTION 225 IS SUMMARY
ADJUDICATION THAT IS INCONSISTENT WITH THE REQUIREMENTS OF DUE
PROCESS."  321 F.SUPP.,AT 386. 

THE SECRETARY DOES NOT CHALLENGE THAT HOLDING IN THIS COURT AS
APPLIED TO HIS NOW-DISCARDED PROCEDURES.  RATHER, THE SECRETARY INSISTS
THAT THE "HEARING ON PAPER" AFFORDED TO DISABILITY BENEFICIARIES BY HIS
NEW REGULATIONS IS CONSTITUTIONALLY SUFFICIENT.  THE SECRETARY DOES NOT
CONTEND THAT DISABILITY BENEFICIARIES DIFFER FROM WELFARE AND OLD-AGE
RECIPIENTS WITH RESPECT TO THEIR ENTITLEMENT TO BENEFITS OR THE DRASTIC
CONSEQUENCES THAT MAY BEFALL THEM IF THEIR BENEFITS ARE ERRONEOUSLY
DISCONTINUED.  THE ONLY DISTINCTIONS URGED ARE THAT THE EVIDENCE
ORDINARILY ADDUCED TO SUPPORT SUSPENSION AND TERMINATION OF DISABILITY
BENEFITS DIFFERS MARKEDLY FROM THAT RELIED UPON TO CUT OFF WELFARE
BENEFITS AND THAT AN UNDUE MONETARY AND ADMINISTRATIVE BURDEN WOULD
RESULT IF PRIOR HEARINGS WERE REQUIRED.  NEITHER DISTINCTION WITHSTANDS
ANALYSIS. 

FIRST.  THE SECRETARY POINTS OUT THAT THE DECISION TO DISCONTINUE
DISABILITY BENEFITS IS GENERALLY MADE UPON THE BASIS OF WAGE REPORTS
FROM EMPLOYERS AND REPORTS OF MEDICAL EXAMINATIONS.  THIS EVIDENCE, IN
THE SECRETARY'S VIEW, "IS HIGHLY RELIABLE AND NOT OF A TYPE THAT DRAWS
INTO ISSUE VERACITY OR CREDIBILITY."  BRIEF 10.  "THE BASIS UPON WHICH
DISABILITY BENEFITS ARE SUSPENDED OR TERMINATED THUS DIFFERS
SIGNIFICANTLY FROM THAT UPON WHICH THE TERMINATIONS OF WELFARE BENEFITS
INVOLVED IN (GOLDBERG) RESTED."  ID., AT 25.  HENCE, THE SECRETARY
CONCLUDES, WHILE PROCEDURAL DUE PROCESS REQUIRES A PRETERMINATION
EVIDENTIARY HEARING FOR WELFARE AND OLD-AGE RECIPIENTS, FOR DISABILITY
BENEFICIARIES A WRITTEN PRESENTATION WILL SUFFICE. 

THE SECRETARY SERIOUSLY MISCONSTRUES THE HOLDING IN GOLDBERG.  THE
COURT THERE SAID THAT "THE PRE-TERMINATION HEARING HAS ONE FUNCTION
ONLY:  TO PRODUCE AN INITIAL DETERMINATION OF THE VALIDITY OF THE
WELFARE DEPARTMENT'S GROUNDS FOR DISCONTINUANCE OF PAYMENTS IN ORDER TO
PROTECT A RECIPIENT AGAINST AN ERRONEOUS TERMINATION OF HIS BENEFITS." 
397 U.S,,AT 267.  THE SECRETARY DOES NOT DENY THAT DUE PROCESS
SAFEGUARDS FULFILL THE SAME FUNCTION IN DISABILITY CASES.  IN GOLDBERG,
THE COURT HELD THAT WELFARE RECIPIENTS WERE ENTITLED TO HEARINGS
BECAUSE DECISIONS TO DISCONTINUE BENEFITS WERE CHALLENGED "AS RESTING
ON INCORRECT OR MISLEADING FACTUAL PREMISES OR ON MISAPPLICATION OF
RULES OR POLICIES TO THE FACTS OF PARTICULAR CASES."  ID., AT 268.  THE
COURT EXPRESSLY PUT ASIDE CONSIDERATION OF SITUATIONS "WHERE THERE ARE
NO FACTUAL ISSUES IN DISPUTE OR WHERE THE APPLICATION OF THE RULE OF
LAW IS NOT INTERTWINED WITH FACTUAL ISSUES."  ID., AT 268 N. 15. 
HOWEVER RELIABLE THE EVIDENCE UPON WHICH A DISABILITY DETERMINATION IS
NORMALLY BASED, AND HOWEVER RARELY IT INVOLVES QUESTIONS OF CREDIBILITY
AND VERACITY, IT IS PLAIN THAT, AS WITH WELFARE AND OLD-AGE
DETERMINATIONS, THE DETERMINATION THAT AN INDIVIDUAL IS OR IS NOT
"DISABLED" WILL FREQUENTLY DEPEND UPON THE RESOLUTION OF FACTUAL ISSUES
AND THE APPLICATION OF LEGAL RULES TO THE FACTS FOUND.  IT IS PRECISELY
FOR THAT REASON THAT A HEARING MUST BE HELD. 

THE SECRETARY, OF COURSE, RECOGNIZES THAT DISABILITY DETERMINATIONS
OFTEN INVOLVE FACTUAL DISPUTES.  HIS NEW PROCEDURES, AS WELL AS THE
POST-TERMINATION PROCEDURES ALREADY AVAILABLE, PRESUMABLY DERIVE FROM
THAT PREMISE.  THE BENEFICIARY MAY FILE A WRITTEN RESPONSE PRESENTING
REBUTTAL EVIDENCE BEFORE HIS BENEFITS ARE SUSPENDED OR TERMINATED;
AFTER TERMINATION, HE IS ENTITLED TO RECONSIDERATION, BASED UPON
WRITTEN SUBMISSIONS, AND THEN A DE NOVO EVIDENTIARY HEARING,
ADMINISTRATIVE APPELLATE REVIEW OF THE HEARING EXAMINER'S DECISION,
AND, FINALLY, JUDICIAL REVIEW.  NEVERTHELESS, THE SECRETARY INSISTS
THAT THE DECISION TO DISCONTINUE DISABILITY BENEFITS DIFFERS FROM THE
DECISION TO DISCONTINUE WELFARE BENEFITS BECAUSE THE LATTER "MAY" BE
BASED UPON "PERSONAL AND SOCIAL SITUATIONS BROUGHT TO THE ATTENTION OF
THE AUTHORITIES BY TIPS, RUMOR OR GOSSIP."  BRIEF 25.  YET IT IS
IRRELEVANT HOW THE MATTER IS "BROUGHT TO THE ATTENTION OF THE
AUTHORITIES,"  WHETHER "BY TIPS, RUMOR OR GOSSIP" OR OTHERWISE.  THE
QUESTION IN A WELFARE DETERMINATION, AS IN A DISABILITY DETERMINATION,
IS SIMPLY WHETHER THE RECIPIENT CONTINUES TO BE ELIGIBLE FOR BENEFITS. 
NOR DOES THE SECRETARY MAKE CLEAR THE RELEVANCE OF "PERSONAL AND SOCIAL
SITUATIONS."  THE SECRETARY DOES SAY THAT "(ONE OF THE RECIPIENTS IN
(GOLDBERG), FOR EXAMPLE, HAD BEEN CUT OFF BECAUSE OF HER ALLEGED
FAILURE TO COOPERATE WITH WELFARE AUTHORITIES IN SUING HER ESTRANGED
HUSBAND; PAYMENTS TO ANOTHER WERE TERMINATED BECAUSE OF ALLEGED DRUG
ADDICTION."  IBID.  THE SECOND RECIPIENT, HOWEVER, WAS CUT OFF BECAUSE
"HE REFUSED TO ACCEPT COUNSELING AND REHABILITATION."  397 U.S.,AT 256
N. 2.  CONSEQUENTLY, BOTH RECIPIENTS LOST THEIR BENEFITS FOR REFUSING
TO COOPERATE WITH THE AUTHORITIES.  THAT, HOWEVER, IS NO DISTINCTION
FROM DISABILITY CASES, FOR DISABILITY BENEFITS WILL ALSO BE
DISCONTINUED IF THE BENEFICIARY REFUSES TO COOPERATE. 

TO SUPPORT THE ASSERTION THAT PRE-TERMINATION HEARINGS ARE REQUIRED
IN WELFARE CASES BECAUSE "CREDIBILITY AND VERACITY" ARE IN ISSUE, THE
SECRETARY FOCUSES UPON CERTAIN LANGUAGE IN GOLDBERG.  HE FIRST QUOTES
THE STATEMENT THAT "(PARTICULARLY WHERE CREDIBILITY AND VERACITY ARE AT
ISSUE, AS THEY MUST BE IN MANY TERMINATION PROCEEDINGS, WRITTEN
SUBMISSIONS ARE A WHOLLY UNSATISFACTORY BASIS FOR DECISION."  ID., AT
269.  APART FROM THE OBVIOUS FACT THAT THAT WAS NOT AN ABSOLUTE
STATEMENT INTENDED TO LIMIT HEARINGS SOLELY TO THOSE INSTANCES, IT WAS
BUT ONE OF THREE REASONS GIVEN TO DEMONSTRATE THAT WRITTEN SUBMISSIONS
ARE INSUFFICIENT.  THE COURT ALSO SAID THAT WRITTEN SUBMISSIONS "ARE AN
UNREALISTIC OPTION FOR MOST RECIPIENTS, WHO LACK THE EDUCATIONAL
ATTAINMENT NECESSARY TO WRITE EFFECTIVELY AND WHO CANNOT OBTAIN
PROFESSIONAL ASSISTANCE" AND THAT THEY "DO NOT AFFORD THE FLEXIBILITY
OF ORAL PRESENTATIONS; THEY DO NOT PERMIT THE RECIPIENT TO MOLD HIS
ARGUMENT TO THE ISSUES THE DECISIONMAKER APPEARS TO REGARD AS
IMPORTANT."  IBID.  SIGNIFICANTLY, THE SECRETARY DOES NOT DENY THAT
THOSE REASONS ARE AS FULLY APPLICABLE TO DISABILITY BENEFICIARIES AS TO
WELFARE RECIPIENTS. 

THE SECRETARY ALSO RELIES UPON THE STATEMENT, QUOTED IN GOLDBERG
FROM GREENE V. MCELROY, 360 U.S. 474, 496 (1959), THAT: 

"(WHERE GOVERNMENTAL ACTION SERIOUSLY INJURES AN INDIVIDUAL, AND THE
REASONABLENESS OF THE ACTION DEPENDS ON FACT FINDINGS, THE EVIDENCE
USED TO PROVE THE GOVERNMENT'S CASE MUST BE DISCLOSED TO THE INDIVIDUAL
SO THAT HE HAS AN OPPORTUNITY TO SHOW THAT IT IS UNTRUE.  WHILE THIS IS
IMPORTANT IN THE CASE OF DOCUMENTARY EVIDENCE, IT IS EVEN MORE
IMPORTANT WHERE THE EVIDENCE CONSISTS OF THE TESTIMONY OF INDIVIDUALS
WHOSE MEMORY MIGHT BE FAULTY OR WHO, IN FACT, MIGHT BE PERJURERS OR
PERSONS MOTIVATED BY MALICE, VINDICTIVENESS, INTOLERANCE, PREJUDICE, OR
JEALOUSY.  WE HAVE FORMALIZED THESE PROTECTIONS IN THE REQUIREMENTS OF
CONFRONTATION AND CROSS-EXAMINATION."  397 U.S.,AT 270.  AGAIN,
HOWEVER, THE STATEMENT HARDLY INDICATES THAT CONFRONTATION AND CROSS
EXAMINATION ARE AVAILABLE TO WELFARE RECIPIENTS ONLY BECAUSE
"CREDIBILITY AND VERACITY" ARE IN ISSUE.  AN INDIVIDUAL HAS THOSE
RIGHTS BECAUSE FACTS ARE IN ISSUE, AS THE STATEMENT MAKES CLEAR. 
MOREOVER, THE COURT INTRODUCED ITS QUOTATION OF THAT STATEMENT IN
GOLDBERG BY POINTING OUT THAT "(IN ALMOST EVERY SETTING WHERE IMPORTANT
DECISIONS TURN ON QUESTIONS OF FACT, DUE PROCESS REQUIRES AN
OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES."  ID., AT
269.  AND, EVEN ASSUMING THE VALIDITY OF THE NOVEL DOCTRINE THAT
CONFRONTATION AND CROSS-EXAMINATION ARE AVAILABLE SOLELY FOR THE
PURPOSE OF TESTING "CREDIBILITY AND VERACITY," THAT WOULD NOT JUSTIFY
DEPRIVING THE DISABILITY BENEFICIARY OF "AN EFFECTIVE OPPORTUNITY TO
DEFEND . . . BY PRESENTING HIS OWN ARGUMENTS AND EVIDENCE ORALLY." 
ID., AT 268.  FINALLY, I SEE NO REASON TO SUPPOSE, NOR DOES THE
SECRETARY SUGGEST ANY, THAT THE "CREDIBILITY AND VERACITY"  OF DOCTORS
AND EMPLOYERS CAN NEVER BE IN ISSUE IN A DISABILITY CASE.  INDEED, THE
SECRETARY'S NEW REGULATIONS INDICATE THAT THEY MAY.  SEE DISABILITY
INS. STATE MANUAL SEC. 353. 

THE PREMISE OF THE SECRETARY'S ENTIRE ARGUMENT IS THAT DISABILITY
BENEFITS ARE DISCONTINUED "ONLY ON THE BASIS OF AN OBJECTIVE
CONSIDERATION-- THAT THE PREVIOUS DISABILITY HAS CEASED-- AND THAT
CONCLUSION RESTS ON RELIABLE INFORMATION."  BRIEF 26.  WHETHER OR NOT
THE INFORMATION IS RELIABLE, THE PREMISE IS QUESTIONABLE.  THE
SECRETARY HIMSELF EMPHASIZES THAT DISABILITY DETERMINATIONS REQUIRE
"SPECIALIZED MEDICAL AND VOCATIONAL EVALUATIONS" AND NOT SIMPLY THE
ACQUISITION OF "MEDICAL AND OTHER RELEVANT DATA."  ID., AT 28.  IN ANY
EVENT, THERE ARE THREE GROUNDS, PERTINENT HERE, UPON WHICH DISABILITY
CAN BE FOUND TO HAVE CEASED.  NONE CAN FAIRLY BE CHARACTERIZED BY THE
TERM "OBJECTIVE." 

FIRST, CESSATION OF DISABILITY MAY BE FOUND IF THE BENEFICIARY
REFUSES TO COOPERATE WITH THE SOCIAL SECURITY AUTHORITIES.  20 CFR
404.1539(C); SEE CLAIMS MANUAL SEC. 6706(E).  THAT JUDGMENT, OF COURSE,
COULD BE WHOLLY SUBJECTIVE, AS THE SECRETARY POINTS OUT WITH REFERENCE
TO WELFARE CASES. 

SECOND, CESSATION MAY BE FOUND IF THE BENEFICIARY "HAS REGAINED HIS
ABILITY TO ENGAGE IN SUBSTANTIAL GAINFUL ACTIVITY . . . AS DEMONSTRATED
BY WORK ACTIVITY."  20 CFR 404.1539(A)(2); SEE CLAIMS MANUAL SEC.
6706(A).  THAT DECISION DOES NOT, AS THE SECRETARY APPEARS TO ASSERT,
REST SOLELY "UPON REGULAR REPORTS MADE BY (THE BENEFICIARY'S) EMPLOYERS
TO THE GOVERNMENT."  BRIEF 25.  RATHER, "THE WORK PERFORMED"  BY THE
BENEFICIARY "MAY DEMONSTRATE" THAT HE IS NO LONGER DISABLED, BUT ONLY
IF IT "IS BOTH SUBSTANTIAL AND GAINFUL."  "SUBSTANTIAL WORK ACTIVITY
INVOLVES THE PERFORMANCE OF SIGNIFICANT PHYSICAL OR MENTAL DUTIES, OR A
COMBINATION OF BOTH, PRODUCTIVE IN NATURE."  A FINDING OF "SUBSTANTIAL
GAINFUL ACTIVITY" DEPENDS UPON THE NATURE OF THE WORK PERFORMED, THE
ADEQUACY OF THE PERFORMANCE, AND THE SPECIAL CONDITIONS, IF ANY, OF THE
EMPLOYMENT, AS WELL AS AN EVALUATION OF THE TIME SPENT AND THE AMOUNT
OF MONEY EARNED BY THE BENEFICIARY.  20 CFR 404.1532-404.1534. 

THIRD, CESSATION OF DISABILITY MAY BE FOUND IF THE EVIDENCE
ESTABLISHES MEDICAL RECOVERY.  20 CFR 404.1539(A)(1); SEE CLAIMS MANUAL
SEC. 6706(C).  THAT DECISION, OF COURSE, WILL BE BASED UPON MEDICAL
EXAMINATIONS, BUT IT DOES NOT FOLLOW THAT IT IS NECESSARILY
"OBJECTIVE."  "THE FUNCTION OF DECIDING WHETHER OR NOT AN INDIVIDUAL IS
UNDER A DISABILITY IS THE RESPONSIBILITY OF THE SECRETARY," AND A
MEDICAL CONCLUSION THAT THE BENEFICIARY IS OR IS NOT DISABLED "SHALL
NOT BE DETERMINATIVE OF THE QUESTION."  20 CFR 404.1526.  THE
SECRETARY'S DECISION THAT A BENEFICIARY'S IMPAIRMENT "IS NO LONGER OF
SUCH SEVERITY AS TO PREVENT HIM FROM ENGAGING IN ANY SUBSTANTIAL
GAINFUL ACTIVITY," 20 CFR 404.1539(A)(1), OBVIOUSLY DEPENDS UPON MORE
THAN AN "OBJECTIVE" MEDICAL REPORT, FOR THE APPLICATION OF THE LEGAL
STANDARD NECESSARILY REQUIRES THE EXERCISE OF JUDGMENT.  AND, OF
COURSE, MULTIPLE CONFLICTING MEDICAL REPORTS ARE "NOT UNCOMMON." 
RICHARDSON V. PERALES, 402 U.S. 389, 399 (1971). 

THE SECRETARY'S CLAIM FOR "OBJECTIVITY" IS EVEN LESS PERSUASIVE IN
THE SITUATION WHERE A BENEFICIARY'S BENEFITS ARE SUSPENDED.  "BENEFITS
ARE SUSPENDED WHEN INFORMATION IS RECEIVED WHICH INDICATES THAT THE
INDIVIDUAL MAY NO LONGER BE UNDER A DISABILITY."  CLAIMS MANUAL SEC.
6708.  HERE, BY DEFINITION, THERE HAS BEEN NO DETERMINATION THAT
DISABILITY HAS CEASED. 

FINALLY, THE POST-TERMINATION REVERSAL RATE FOR DISABILITY
DETERMINATIONS MAKES THE ASSERTED "OBJECTIVITY" EVEN MORE DOUBTFUL. 
ACCORDING TO THE SECRETARY'S FIGURES FOR 1971, 37% OF THE REQUESTS FOR
RECONSIDERATION RESULTED IN REVERSAL OF THE DETERMINATION THAT
DISABILITY HAD CEASED.  MOREOVER, 55% OF THE BENEFICIARIES WHO
EXERCISED THEIR RIGHT TO A HEARING WON REVERSAL.  WHILE, AS THE
SECRETARY SAYS, THESE FIGURES MAY ATTEST TO THE FAIRNESS OF THE SYSTEM,
RICHARDSON V. PERALES, SUPRA, AT 410, THEY ALSO APPEAR TO CONFIRM THAT
THE COURT'S REFERENCE IN GOLDBERG TO "THE WELFARE BUREAUCRACY'S
DIFFICULTIES IN REACHING CORRECT DECISIONS ON ELIGIBILITY," 397 U.S.,AT
264 N. 12, IS FULLY APPLICABLE TO THE ADMINISTRATION OF THE DISABILITY
PROGRAM. 

SECOND.  THE SECRETARY ALSO CONTENDS THAT AFFORDING DISABILITY
BENEFICIARIES THE OPPORTUNITY TO PARTICIPATE IN EVIDENTIARY HEARINGS
BEFORE DISCONTINUANCE OF THEIR BENEFITS WILL RESULT IN GREAT EXPENSE
AND A VAST DISRUPTION OF THE ADMINISTRATIVE SYSTEM.  THIS JUSTIFICATION
FOR DENIAL OF PRE-TERMINATION HEARINGS WAS, OF COURSE, SPECIFICALLY
REJECTED IN GOLDBERG, 397 U.S.,AT 265-266, AND THE SECRETARY OFFERS NO
NEW CONSIDERATIONS TO SUPPORT ITS ACCEPTANCE HERE. 

IN GOLDBERG, THE COURT POINTED OUT "THAT TERMINATION OF AID PENDING
RESOLUTION OF A CONTROVERSY OVER ELIGIBILITY MAY DEPRIVE AN ELIGIBLE
RECIPIENT OF THE VERY MEANS BY WHICH TO LIVE WHILE HE WAITS."  397
U.S.,AT 264.  THAT STATEMENT APPLIES EQUALLY TO ELIGIBLE DISABILITY
BENEFICIARIES, FOR, AS THE DISTRICT COURT NOTED AND THE SECRETARY DOES
NOT DENY, "A DISABILITY BENEFICIARY IS BY DEFINITION UNABLE TO ENGAGE
IN SUBSTANTIAL GAINFUL ACTIVITY AND HE WOULD, THEREFORE, BE LIABLE TO
SUSTAIN GRIEVOUS LOSS WHILE AWAITING THE RESOLUTION OF HIS CLAIM."  321
F.SUPP.,AT 386.  IN VIEW OF THAT RESULT, THE DISTRICT COURT CONCLUDED
THAT THE "FISCAL AND ADMINISTRATIVE EXPENSES TO THE GOVERNMENT,
WHATEVER THEIR MAGNITUDE, ARE INSUFFICIENT JUSTIFICATION CONSIDERING
THE CRIPPLING BLOW THAT COULD BE DEALT TO AN INDIVIDUAL IN THESE
CIRCUMSTANCES."  IBID.  THE SECRETARY'S RESPONSE IS SIMPLY TO STRESS
THE MAGNITUDE OF THE BURDEN. 

HERE, AS IN GOLDBERG, "(THE REQUIREMENT OF A PRIOR HEARING DOUBTLESS
INVOLVES SOME GREATER EXPENSE."  397 U.S.,AT 266.  THE SECRETARY POINTS
OUT THAT CURRENT PROCEDURES INCLUDE A TWO-STEP DETERMINATION OF
DISABILITY:  FIRST BY THE STATE AGENCY, AFTER A DISTRICT OFFICE OF THE
SOCIAL SECURITY ADMINISTRATION HAD CONDUCTED A DISABILITY
INVESTIGATION, AND THEN, ON REVIEW OF THE STATE AGENCY'S DETERMINATION,
BY THE ADMINISTRATION'S BUREAU OF DISABILITY INSURANCE, WHICH IS
LOCATED IN BALTIMORE, MARYLAND.  /3/  THUS, THE SECRETARY SAYS, A PRIOR
HEARING "EITHER WOULD REQUIRE THE BENEFICIARY TO TRAVEL GREAT DISTANCES
OR WOULD NECESSITATE THAT STATE OR FEDERAL OFFICIALS TRAVEL TO THE AREA
IN WHICH THE BENEFICIARY RESIDES, NEITHER OF WHICH IS PRACTICAL." 
BRIEF 28-29.  "NOR COULD THE DECISION-MAKING FUNCTION BE TURNED OVER TO
THE ADMINISTRATION'S DISTRICT OFFICES, WHICH ARE LOCATED CONVENIENTLY
TO THE BENEFICIARIES, WITHOUT STAFFING THEM WITH INDIVIDUALS QUALIFIED
TO MAKE THE NECESSARY MEDICAL AND VOCATIONAL JUDGMENT."  ID., AT 29. 
HENCE, THE SECRETARY CONCLUDES, PRIOR HEARINGS "WOULD REQUIRE MASSIVE
RESTRUCTURING OF THE EXISTING ADMININSTRATIVE ADJUDICATIVE PROCESS." 
ID., AT 27. 

EXCEPT FOR BALD ASSERTION, THE SECRETARY OFFERS NOTHING TO INDICATE
THAT ANY GREAT BURDEN UPON THE SYSTEM WOULD RESULT IF THE STATE
AGENCIES CONDUCTED THE HEARINGS.  MOREOVER, THE SECRETARY OMITS EVEN TO
MENTION THE EXISTENCE OF THE CURRENT POST-TERMINATION HEARING
PROCEDURES.  SEE 20 CFR 404.917-404.941.  IT IS REASONABLE TO ASSUME
THAT THE ONLY "RESTRUCTURING" NECESSARY WOULD BE A CHANGE IN THE TIMING
OF THE HEARINGS.  THAT WAS APPARENTLY THE METHOD BY WHICH THE SECRETARY
REQUIRED THE STATES TO COMPLY WITH GOLDBERG IN THE ADMINISTRATION OF
VARIOUS OTHER SOCIAL SECURITY PROGRAMS, SEE 45 CFR 205.10, 36 FED.REG. 
3034-3035, AND IT WOULD SEEM TO BE AN EQUALLY AVAILABLE RESPONSE HERE. 
WHILE THE ADMINISTRATION OF THE DISABILITY PROGRAM TO PROVIDE PRIOR
HEARINGS MAY INVOLVE "SOME GREATER EXPENSE," AS THE COURT NOTED IN
GOLDBERG, 397 U.S.,AT 266, THAT EXPENSE SHOULD NOT BE EXAGGERATED IN
ORDER TO DEPRIVE DISABILITY BENEFICIARIES OF THEIR RIGHT TO
"RUDIMENTARY DUE PROCESS," ID., AT 267.     THE SECRETARY ALSO CLAIMS
THAT THE REQUIREMENT OF PRIOR HEARINGS "WOULD RESULT IN LOSSES TO THE
SOCIAL SECURITY TURST FUND OF NEARLY $16 MILLION PER YEAR FOR
DISABILITY CASES AND STILL GREATER SUMS WHEN ALL TITLE II PROGRAMS ARE
CONSIDERED."  BRIEF 10.  THIS CONCLUSION DOES NOT FOLLOW FROM THE FACTS
THE SECRETARY PRESENTS. 

AS TO THE DISABILITY PROGRAM, THE SECRETARY SAYS THAT IN 1971 THERE
WERE 38,000 DETERMINATIONS THAT DISABILITY HAD CEASED AND THAT THE
AVERAGE MONTHLY BENEFIT IN THOSE CASES WAS $207.  IF, TO PROVIDE PRIOR
HEARINGS, TERMINATIONS WERE DELAYED FOR TWO MONTHS, THE SECRETARY SAYS,
THE COST IN BENEFITS PAID PENDING THE HEARINGS WOULD APPROACH $16
MILLION.  IT IS IMMEDIATELY APPARENT THAT THIS FIGURE IS GROSSLY
INFLATED. 

FIRST, THIS FIGURE DEPENDS UPON THE UNWARRANTED ASSUMPTION THAT ALL
BENEFICIARIES WILL DEMAND A PRIOR HEARING.  THE SECRETARY SUGGESTS NO
REASON TO SUPPOSE THAT WOULD HAPPEN.  IN FACT, WHILE THERE WERE 38,000
DISABILITY CESSATIONS IN 1971, THERE WERE ONLY 10,941 REQUESTS FOR
RECONSIDERATION, AND ALTHOUGH 6,885 CESSATIONS WERE AFFIRMED ON
RECONSIDERATION, THERE WERE ONLY 2,330 REQUESTS FOR HEARINGS.  THESE
POST-TERMINATION PROCEDURES, OF COURSE, WERE UTILIZED BY BENEFICIARIES
WHO COULD NOT PRESENT THEIR VIEWS BEFORE TERMINATION.  UNDER THE NEW
REGULATIONS, AFFORDING NOTICE AND THE OPPORTUNITY TO RESPOND IN WRITING
BEFORE TERMINATION, IT MAY WELL BE THAT EVEN FEWER BENEFICIARIES WILL
DEMAND HEARINGS.  IN ANY EVENT, EXPERIENCE IN THE WELFARE AREA HAS NOT
DEMONSTRATED THAT RECIPIENTS ABUSE THEIR RIGHT TO PRE-TERMINATION
HEARINGS, AND THE SECRETARY DOES NOT CLAIM THAT DISABILITY
BENEFICIARIES WILL DO SO. 

SECOND, THE $16 MILLION FIGURE REQUIRES NOT ONLY THAT ALL 38,000
BENEFICIARIES REQUEST PRIOR HEARINGS, BUT ALSO THAT THEY ALL LOSE. 
YET, AS NOTED ABOVE, 37% OF THE RECONSIDERATIONS ON WRITTEN SUBMISSIONS
AND 55% OF THE POST-TERMINATION HEARINGS IN 1971 RESULTED IN REVERSAL. 
THE SECRETARY DOES NOT CLAIM, NOR IS IT CONCEIVABLE, THAT IN EVERY CASE
A PRIOR HEARING WOULD UPHOLD THE INITIAL DETERMINATION THAT DISABILITY
HAD CEASED. 

THIRD, NOT ONLY MUST EVERY BENEFICIARY REQUEST A PRIOR HEARING AND
EVERY HEARING AFFIRM CESSATION OF DISABILITY, IT MUST ALSO BE TRUE, TO
REACH THE $16 MILLION FIGURE, THAT THE SECRETARY WILL BE UNABLE TO
RECOVER ANY OF THE BENEFITS PAID TO BENEFICIARIES PENDING THE
HEARINGS.  THAT RESULT IS UNLIKELY.  SECTION 204(A)(1) OF THE ACT, 42
U.S.C. 404(A)(1); SEE 20 CFR 404.501-404.502, DIRECTS THE SECRETARY, IF
HE FINDS THAT THERE HAS BEEN AN OVERPAYMENT, TO REQUIRE A REFUND FROM
THE BENEFICIARY OR TO DECREASE ANY FUTURE BENEFITS TO WHICH HE MAY BE
ENTITLED.  THUS, IF THE BENEFICIARY IS NOT "DISABLED," HE PRESUMABLY
CAN ENGAGE IN "SUBSTANTIAL GAINFUL ACTIVITY," AND THE SECRETARY MAY
WELL SECURE A REFUND.  IF, ON THE OTHER HAND, THE CASE IS A CLOSE ONE
AND THE BENEFICIARY IS LATER FOUND TO BE "DISABLED" AGAIN, THE
SECRETARY MAY REDUCE HIS BENEFITS.  FURTHERMORE, SEC. 204(B), 42 U.S.C.
404(B); SEE 20 CFR 404.506-404-509, DIRECTS THE SECRETARY NOT TO
REQUIRE A REFUND OR DECREASE BENEFITS IF THE BENEFICIARY "IS WITHOUT
FAULT" AND A REFUND OR DECREASE "WOULD DEFEAT THE PURPOSE OF" THE ACT
OR "WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE."  THE SECRETARY'S DUTY
TO WAIVE CLAIMS FOR EXCESS PAYMENTS MAY WELL APPLY IN MANY TERMINATION
CASES, PARTICULARLY WHERE THE BENEFICIARY IS JUDGMENT PROOF.  SEE 20
CFR 404.508.  OBVIOUSLY, THERE IS NO LOSS TO THE SOCIAL SECURITY FUND
IF BENEFITS PAID TO AN INELIGIBLE BENEFICIARY PENDING A HEARING ARE
SUBJECT TO STATUTORY WAIVER. 

FOURTH, THE $16 MILLION FIGURE DEPENDS UPON THE STATED PREMISE THAT
THE REQUIREMENT OF A HEARING WOULD CAUSE A TWO-MONTH DELAY IN THE
TERMINATION OF BENEFITS.  THE SECRETARY DOES NOT EXPLAIN WHY HE CHOSE
THAT TIME PERIOD.  UNDER THE NEW REGULATIONS, A BENEFICIARY RECEIVES
NOTICE OF THE PROPOSED DISCONTINUANCE, IS INFORMED OF THE INFORMATION
UPON WHICH IT IS BASED, AND IS GIVEN THE OPPORTUNITY TO SUBMIT A
WRITTEN RESPONSE PRESENTING REBUTTAL EVIDENCE.  ONLY THEN IS THE
DISABILITY DETERMINATION MADE.  IT IS DIFFICULT TO BELIEVE THAT IT
WOULD REQUIRE ANOTHER TWO MONTHS JUST TO PROVIDE A HEARING. 

FINALLY, UNDER SEC. 223(A)(1) OF THE ACT, 42 U.S.C. 423(A)(1); SEE
CLAIMS MANUAL SEC. 6707, BENEFITS MUST BE PAID FOR TWO MONTHS AFTER THE
MONTH IN WHICH DISABILITY CEASES.  THE $16 MILLION FIGURE DEPENDS UPON
THE UNWARRANTED ASSUMPTION THAT ALL TERMINATIONS OCCUR AT LEAST TWO
MONTHS AFTER DISABILITY IS FOUND TO HAVE CEASED.  IN THIS CASE, FOR
EXAMPLE, THE STATE AGENCY DETERMINED THAT PLAINTIFF ATKINS' DISABILITY
CEASED IN JANUARY.  THE BUREAU OF DISABILITY INSURANCE APPROVED THAT
DETERMINATION AND ON FEBRUARY 3 INFORMED ATKINS THAT HIS BENEFITS WOULD
BE TERMINATED AT THE END OF MARCH.  THUS, EVEN ASSUMING A TWO-MONTH
DELAY FOR A HEARING, THERE WOULD BE NO COST WHATEVER TO THE TRUST
FUND. 

VIEWING TITLE II PROGRAMS AS A WHOLE, THE SECRETARY POINTS OUT THAT
THERE WERE NEARLY THREE MILLION TERMINATIONS OF BENEFITS IN 1969.  THE
VAST MAJORITY OF THESE TERMINATIONS WERE FOR DEATH, ATTAINMENT OF A
CERTAIN AGE, AND SO FORTH, BUT THE SECRETARY ASSERTS THAT APART FROM
THOSE CASES THERE WERE 515,189 TERMINATIONS THAT WOULD HAVE BEEN
AFFECTED BY THE REQUIREMENT OF A PRIOR HEARING.  THAT NUMBER, HOWEVER,
INCLUDES TERMINATIONS BASED UPON A STUDENT'S LEAVING SCHOOL, A CHANGE
IN A BENEFICIARY'S MARITAL STATUS, AND THE DEATH OR ADOPTION OF A
CHILD.  WITHOUT THOSE CASES, THE NUMBER DROPS TO 186,035.  MOREOVER,
EVEN THIS NUMBER INCLUDES DISABILITY TERMINATIONS AND THE TERMINATIONS
OF DEPENDENTS BASED THEREON.  PUTTING ASIDE THOSE CASES, THE TOTAL
APPEARS TO BE SOMEWHAT CLOSER TO 100,000.  WHILE THAT IS A SUBSTANTIAL
NUMBER OF TERMINATIONS, THE SECRETARY DOES NOT INDICATE WHAT ISSUES ARE
INVOLVED IN MAKING THE DECISIONS.  AS NOTED ABOVE, PRIOR EVIDENTIARY
HEARINGS ARE NECESSARY IN DISABILITY CASES BECAUSE FACTUAL DISPUTES
EXIST.  THEY MAY EXIST TO A FAR LESSER EXTENT IN OTHER PROGRAMS. 
MOREOVER, TO WHATEVER EXTENT THEY DO EXIST, THE OBJECTIONS TO THE
SECRETARY'S INFLATED COST FIGURE FOR DISABILITY TERMINATIONS WOULD SEEM
TO APPLY EQUALLY TO NONDISABILITY TERMINATIONS.  IN ANY EVENT, THE
SECRETARY HAS SIMPLY PROVIDED THE BARE NUMBER OF TERMINATIONS, WITH NO
FURTHER INFORMATION, AND IT IS INAPPROPRIATE, IF NOT IMPOSSIBLE, TO
DECIDE WHAT EFFECT REQUIRING PRIOR HEARINGS IN DISABILITY CASES WILL
HAVE ON NONDISABILITY CASES. 

I DO NOT DENY THAT PRIOR HEARINGS WILL ENTAIL SOME ADDITIONAL
ADMINISTRATIVE BURDENS AND EXPENSE.  ADMINISTRATIVE FAIRNESS USUALLY
DOES.  BUT THE SECRETARY "IS NOT WITHOUT WEAPONS TO MINIMIZE THESE
INCREASED COSTS."  GOLDBERG V. KELLY, 397 U.S.,AT 266.  DESPITE THE
SECRETARY'S PROTESTATIONS TO THE CONTRARY, I BELIEVE THAT IN THE
DISABILITY, AS IN THE WELFARE, AREA "(MUCH OF THE DRAIN ON FISCAL AND
ADMINISTRATIVE RESOURCES CAN BE REDUCED BY DEVELOPING PROCEDURES FOR
PROMPT PRETERMINATION HEARINGS AND BY SKILLFUL USE OF PERSONNEL AND
FACILITIES."  IBID.  THE COURT'S CONCLUSION ON THIS POINT IN GOLDBERG
IS FULLY APPLICABLE HERE: 

"INDEED, THE VERY PROVISION FOR A POST-TERMINATION EVIDENTIARY
HEARING . . . IS ITSELF COGENT EVIDENCE THAT THE STATE RECOGNIZES THE
PRIMACY OF THE PUBLIC INTEREST IN CORRECT ELIGIBILITY DETERMINATIONS
AND THEREFORE IN THE PROVISION OF PROCEDURAL SAFEGUARDS.  THUS, THE
INTEREST OF THE ELIGIBLE RECIPIENT IN UNINTERRUPTED RECEIPT OF PUBLIC
ASSISTANCE, COUPLED WITH THE STATE'S INTEREST THAT HIS PAYMENTS NOT BE
ERRONEOUSLY TERMINATED, CLEARLY OUTWEIGHS THE STATE'S COMPETING CONCERN
TO PREVENT ANY INCREASE IN ITS FISCAL AND ADMINISTRATIVE BURDENS." 
IBID. 

MY ANSWERS TO THE SECRETARY'S CONTENTIONS ARE ALSO THE REASONS I
DISAGREE WITH THE MAJORITY OF THE DISTRICT COURT AND AGREE WITH THE
DISSENTING JUDGE.  I WOULD THEREFORE VACATE THE JUDGMENT OF THE
DISTRICT COURT AND REMAND WITH DIRECTION TO ENTER A NEW JUDGMENT
REQUIRING THAT DISABILITY BENEFITS NOT BE DISCONTINUED UNTIL THE
BENEFICIARY HAS BEEN AFFORDED PROCEDURAL DUE PROCESS IN THE FORM
MANDATED BY GOLDBERG WITH RESPECT TO DISCONTINUANCE OF WELFARE AND OLD
AGE BENEFITS. 

/1/  "THE ISSUE REGARDING A RIGHT TO A HEARING PRIOR TO SUSPENSION
OR TERMINATION OF DISABILITY BENEFITS IS PRESENTED IN A NUMBER OF OTHER
CASES:  DOYLE V. RICHARDSON (C.A. 5, NO. 31,104); MOORE V. RICHARDSON
(N.D. CALIF., CIV. NO. C-702573); ELDRIDGE V. RICHARDSON (W.D. VA.,
CIV. NO. 70-C-52-A) (DISMISSED MAY 6, 1971); DYE V. RICHARDSON (W.D.
PA., CIV. NO. 70-1384) (DISMISSED MARCH 8, 1971); HARVEY V. RICHARDSON
(W.D. PA., CIV. NO. 70-1460); RODRIQUEZ V. FINCH (D. COLO., CIV. NO. C
2294) (DISMISSED JULY 1, 1971); OLIVAS V. SECRETARY OF HEW (D. COLO.,
CIV. NO. C-3262).  THE ISSUE IS ALSO PRESENTED IN SEVERAL NONDISABILITY
CASES:  ANDERSON V. FINCH (N.D. OHIO, CIV. NO. 70-425, DECIDED JANUARY
15, 1971, AND PENDING BEFORE C.A. 6, NO. 71-1317); GAROFALO V.
RICHARDSON (S.D.N.Y., CIV. NO. 70-5133) (REMANDED JULY 16, 1971);
LINDSAY V. RICHARDSON (W.D.N.C., CIV. NO. 2794); VANGUILDER V.
RICHARDSON (D. MINN., CIV. NO. 4-70-386); HOPKINS V. RICHARDSON (E.D.
PA., CIV. NO. 71-37); SHISSLAK V. H.E.W. (D. ARIZ., CIV. NO. 71-35 TUC,
DECIDED APRIL 9, 1971 AND PENDING BEFORE C.A. 9, NO. 71-2060; BAKER V.
FINCH (N.D. GA., CIV. NO. 13786, DECIDED SEPTEMBER 13, 1971); CORONA V.
RICHARDSON (N.D. CALIF., CIV. NO. 70-2662); RECIDE V. RICHARDSON (D.
HAWAII, CIV. NO. 70-3426); MILLS V. RICHARDSON (N.D.N.Y., CIV. NO. 71
CV-208, DECIDED OCTOBER 15, 1971)."  BRIEF FOR THE SECRETARY 8-9, N.
9. 

/2/  APPARENTLY THE NEW PROCEDURES APPLY ONLY TO CASES INVOLVING
ISSUES OF MEDICAL RECOVERY.  WE ARE ADVISED, HOWEVER, THAT "(THE
SECRETARY IS PRESENTLY DEVELOPING A SIMILAR TERMINATION PROCEDURE TO
COVER TERMINATIONS IN CASES INVOLVING A RETURN TO WORK BUT NO ISSUE OF
MEDICAL RECOVERY."  SUPPLEMENTAL BRIEF FOR THE SECRETARY 3. 

/3/  THE BUREAU CANNOT REVERSE A STATE AGENCY'S FINDING THAT
DISABILITY HAS CEASED, ALTHOUGH IT CAN REQUIRE RECONSIDERATION BY THE
AGENCY.  42 U.S.C. 421(C); 20 CFR 404.1520(C); CLAIMS MANUAL SEC.
6701(C); SEE BRIEF FOR THE SECRETARY 11-12, 17. 

ASSISTANT ATTORNEY GENERAL GRAY ARGUED THE CAUSE FOR APPELLANT IN
NO. 70-161 AND FOR APPELLEE IN NO. 70-5211.  WITH HIM ON THE BRIEFS
WERE SOLICITOR GENERAL GRISWOLD, KATHRYN H. BALDWIN, WILMOT R.
HASTINGS, EDWIN H. YOURMAN, AND PAUL MERLIN. 

ROBERT N. SAYLER ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLEES IN
NO. 70-161 AND FOR APPELLANTS IN NO. 70-5211. 

BRIEFS OF AMICI CURIAE IN BOTH CASES WERE FILED BY THOMAS L. FIKE
FOR THE LEGAL AID SOCIETY OF ALAMEDA COUNTY; BY DAVID H. MARLIN AND
JONATHAN A. WEISS FOR THE NATIONAL COUNCIL OF SENIOR CITIZENS; AND BY
ALBERT C. NEIMETH FOR LUELLA H. MILLS ET AL. BERNARD P. BECKER AND
HARVEY N. SCHMIDT FILED A BRIEF FOR STELLA VAN GUILDER ET AL. AS AMICI
CURIAE. 
..END :














ROUDEBUSH V. HARTKE, 405 U.S. 15 


       ROUDEBUSH V. HARTKE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF INDIANA

        NO. 70-66.  ARGUED DECEMBER 13, 1971-- DECIDED FEBRUARY 23,

           1972  /0/ 


INCUMBENT SENATOR HARTKE WAS CERTIFIED BY THE INDIANA SECRETARY OF
STATE TO THE GOVERNER AS THE WINNER OF THE CLOSE 1970 INDIANA
SENATORIAL ELECTION.  CANDIDATE ROUDEBUSH FILED A TIMELY RECOUNT
PETITION IN STATE COURT.  THE STATE COURT DENIED HARTKE'S MOTION TO
DISMISS ON THE GROUNDS OF CONFLICT WITH THE INDIANA AND FEDERAL
CONSTITUTIONS, AND GRANTED THE PETITION FOR A RECOUNT.  HARTKE SOUGHT
AN INJUNCTION AGAINST THE RECOUNT IN UNITED STATES DISTRICT COURT,
INVOKING JURISDICTION UNDER 28 U.S.C. 1343(3) AND CLAIMING THAT THE
RECOUNT WAS BARRED BY ART. I, SEC. 5, OF THE FEDERAL CONSTITUTION,
DELEGATING TO THE SENATE THE POWER TO JUDGE THE ELECTIONS, RETURNS, AND
QUALIFICATIONS OF ITS MEMBERS.  THE THREE-JUDGE DISTRICT COURT ISSUED
THE REQUESTED INJUNCTION.  AFTER APPEALS WERE FILED HERE, THE SENATE
SEATED HARTKE "WITHOUT PREJUDICE TO THE OUTCOME OF AN APPEAL PENDING IN
THE SUPREME COURT . . . AND WITHOUT PREJUDICE TO THE OUTCOME OF ANY
RECOUNT THAT THE SUPREME COURT MIGHT ORDER."  HARTKE THEN MOVED TO
DISMISS THE APPEALS AS MOOT.  HELD: 

1.  THE ISSUE HERE, WHETHER A RECOUNT IS A VALID EXERCISE OF THE
STATE'S POWER TO PRESCRIBE THE TIMES, PLACES, AND MANNER OF HOLDING
ELECTIONS, PERSUANT TO ART. I, SEC. 4, OF THE CONSTITUTION, OR IN A
FORBIDDEN INFRINGEMENT ON THE SENATE'S POWER UNDER ART. I, SEC. 5, IS
NOT MOOT, AS THE SENATE HAS POSTPONED MAKING A FINAL DETERMINATION OF
WHO IS ENTITLED TO THE OFFICE OF SENATOR PENDING THE OUTCOME OF THE
ACTION.  PP. 18-19. 

2.  THE DISTRICT COURT WAS NOT BARRED FROM ISSUING AN INJUNCTION BY
28 U.S.C. 2283, WHICH GENERALLY PROHIBITS A FEDERAL COURT FROM
ENJOINING STATE COURT PROCEEDINGS.  PP. 20-23. 

(A) THAT SECTION DOES NOT RESTRICT A FEDERAL COURT FROM ENJOINING A
STATE COURT ACTING IN A NONJUDICIAL CAPACITY.  P. 21. 

(B) THE STATE COURT'S RECOUNT FUNCTIONS ARE NONJUDICIAL, AS THEY
CONSIST MERELY OF DETERMINING THAT THE RECOUNT PETITION IS CORRECT AS
TO FORM AND APPOINTING RECOUNT COMMISSIONERS.  PP. 21-22. 

(C) THE COMPLAINT DID NOT SEEK TO ENJOIN THE ACTION OF THE STATE
COURT BUT RATHER TO ENJOIN THE RECOUNT COMMISSION FROM PROCEDING AFTER
THE COURT HAD APPOINTED MEMBERS OF THE COMMISSION.  P. 22. 

3.  ARTICLE I, SEC. 5, DOES NOT PROHIBIT A RECOUNT OF THE BALLOTS BY
INDIANA, AS THE RECOUNT WILL NOT PREVENT AN INDEPENDENT SENATE
EVALUATION OF THE ELECTION ANY MORE THAN THE ORIGINAL COUNT DID, AND IT
WOULD BE MERE SPECULATION TO ASSUME THAT INDIANA'S PROCEDURE WOULD
IMPAIR THE SENATE'S ABILITY TO MAKE AN INDEPENDENT FINAL JUDGMENT.  PP.
23-26. 

321 F.SUPP.  1370, REVERSED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J.,
FILED AN OPINION DISSENTING IN PART, IN WHICH BRENNAN, J., JOINED,
POST, P. 26.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE 1970 ELECTION FOR THE OFFICE OF UNITED STATES SENATOR WAS THE
CLOSEST IN INDIANA HISTORY.  THE INCUMBENT, SENATOR R. VANCE HARTKE
(HARTKE), WAS DECLARED THE WINNER BY A PLURALITY OF 4,383 VOTES-- A
MARGIN OF APPROXIMATELY ONE VOTE PER STATE PRECINCT.  ON NOVEMBER 16,
1970, 13 DAYS AFTER THE ELECTION, THE INDIANA SECRETARY OF STATE
CERTIFIED TO THE GOVERNOR THAT HARTKE HAD BEEN RE-ELECTED.  ON THE
FOLLOWING DAY, CANDIDATE RICHARD I. ROUDEBUSH (ROUDEBUSH) FILED IN THE
SUPERIOR COURT OF MARION COUNTY A TIMELY PETITION FOR A RECOUNT.  /1/
HARTKE MOVED IN THAT COURT TO DISMISS THE PETITION, ARGUING THAT THE
STATE RECOUNT PROCEDURE CONFLICTED WITH THE INDIANA AND FEDERAL
CONSTITUTIONS.  ON DECEMBER 1, THE STATE COURT DENIED THE MOTION TO
DISMISS AND GRANTED THE PETITION FOR A RECOUNT.  IT APPOINTED A THREE
MAN RECOUNT COMMISSION AND DIRECTED IT TO BEGIN ITS TASK ON DECEMBER
8. 

HARTKE THEN FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA ASKING FOR AN INJUNCTION AGAINST
THE RECOUNT.  HE INVOKED FEDERAL JURISDICTION UNDER 28 U.S.C. 1343(3)
/2/  AND CLAIMED THAT THE RECOUNT WAS PROHIBITED BY ART. I, SEC. 5, OF
THE CONSTITUTION OF THE UNITED STATES, WHICH DELEGATES TO THE SENATE
THE POWER TO JUDGE THE ELECTIONS, RETURNS, AND QUALIFICATIONS OF ITS
MEMBERS.  /3/  A SINGLE DISTRICT JUDGE ISSUED AN ORDER TEMPORARILY
RESTRAINING THE RECOUNT PENDING DECISION BY A THREE-JUDGE DISTRICT
COURT.  THE ATTORNEY GENERAL OF INDIANA THEN MOVED SUCCESSFULLY TO
INTERVENE AS A DEFENDANT, AND A THREE-JUDGE COURT WAS CONVENED PURSUANT
TO 28 U.S.C. 2284.  AFTER TAKING TESTIMONY AND HEARING ARGUMENT, THE
COURT RULED IN HARTKE'S FAVOR AND ISSUED AN INTERLOCUTORY INJUNCTION,
321 F.SUPP.  1370, ONE JUDGE DISSENTING.  ROUDEBUSH AND THE ATTORNEY
GENERAL BOTH BROUGHT DIRECT APPEALS TO THIS COURT.  /4/ 

ON JANUARY 21, 1971, SHORTLY AFTER THE JURISDICTIONAL STATEMENTS
WERE FILED, THE SENATE ADMINISTERED THE OATH OF OFFICE TO HARTKE, WHO
HAD BEEN ISSUED A CERTIFICATE OF ELECTION BY THE GOVERNOR.  HARTKE WAS
SEATED, HOWEVER, "WITHOUT PREJUDICE TO THE OUTCOME OF AN APPEAL PENDING
IN THE SUPREME COURT OF THE UNITED STATES, AND WITHOUT PREJUDICE TO THE
OUTCOME OF ANY RECOUNT THAT THE SUPREME COURT MIGHT ORDER.  . . . "
/5/  FOLLOWING THE SENATE'S DECISION TO SEAT HIM, HARTKE MOVED TO
DISMISS THE APPEALS AS MOOT.  WE CONSOLIDATED BOTH APPEALS AND
POSTPONED FURTHER CONSIDERATION OF QUESTIONS OF JURISDICTION TO THE
HEARING OF THE CAUSE ON THE MERITS.  401 U.S. 972. 

        I 

WE CONSIDER FIRST THE CLAIM THAT THESE APPEALS ARE MOOT.  THIS CLAIM
IS BASED UPON THE PROPOSITION, AS STATED IN APPELLEE HARTKE'S BRIEF,
THAT THE "BASIC ISSUE" BEFORE THE COURT IS "WHETHER APPELLEE HARTKE OR
APPELLANT ROUDEBUSH IS ENTITLED TO THE OFFICE OF UNITED STATES SENATOR
FROM INDIANA."  SINCE THE SENATE HAS NOW SEATED HARTKE, AND SINCE THIS
COURT IS WITHOUT POWER TO ALTER THE SENATE'S JUDGMENT, /6/  IT FOLLOWS,
THE ARGUMENT GOES, THAT THE CAUSE IS MOOT. 

THE DIFFICULTY WITH THIS ARGUMENT IS THAT IT IS BASED ON AN
ERRONEOUS STATEMENT OF THE "BASIC ISSUE."  WHICH CANDIDATE IS ENTITLED
TO BE SEATED IN THE SENATE IS, TO BE SURE, A NONJUSTICIABLE POLITICAL
QUESTION-- A QUESTION THAT WOULD NOT HAVE BEEN THE BUSINESS OF THIS
COURT EVEN BEFORE THE SENATE ACTED.  /7/  THE ACTUAL QUESTION BEFORE
US, HOWEVER, IS A DIFFERENT ONE.  IT IS WHETHER AN INDIANA RECOUNT OF
THE VOTES IN THE 1970 ELECTION IS A VALID EXERCISE OF THE STATE'S
POWER, UNDER ART. I, SEC. 4, TO PRESCRIBE THE TIMES, PLACES, AND MANNER
OF HOLDING ELECTIONS, /8/  OR IS A FORBIDDEN INFRINGEMENT UPON THE
SENATE'S POWER UNDER ART. I, SEC. 5. 

THAT QUESTION IS NOT MOOT, BECAUSE THE SENATE HAS POSTPONED MAKING A
FINAL DETERMINATION OF WHO IS ENTITLED TO THE OFFICE OF SENATOR,
PENDING THE OUTCOME OF THIS LAWSUIT.  ONCE THIS CASE IS RESOLVED AND
THE SENATE IS ASSURED THAT IT HAS RECEIVED THE FINAL INDIANA TALLY, THE
SENATE WILL BE FREE TO MAKE AN UNCONDITIONAL AND FINAL JUDGMENT UNDER
ART. I, SEC. 5.  UNTIL THAT JUDGMENT IS MADE, THIS CONTROVERSY REMAINS
ALIVE, AND WE ARE OBLIGED TO CONSIDER IT.  /9/

        II 

IT IS THE POSITION OF THE APPELLANTS THAT, QUITE APART FROM THE
MERITS OF THE CONTROVERSY, THE THREE-JUDGE DISTRICT COURT WAS BARRED
FROM ISSUING AN INJUNCTION BY REASON OF 28 U.S.C. 2283, WHICH PROHIBITS
A FEDERAL COURT FROM ENJOINING STATE COURT PROCEEDINGS EXCEPT IN A FEW
SPECIFIC INSTANCES.  /10/  THIS ARGUMENT HAS WEIGHT, OF COURSE, ONLY IF
THE INDIANA STATUTORY RECOUNT PROCEDURE IS A "PROCEEDING IN A STATE
COURT" WITHIN THE MEANING OF SEC. 2283, /11/  "THE PROVISION EXPRESSES
ON ITS FACE THE DUTY OF 'HANDS OFF' BY THE FEDERAL COURTS IN THE USE OF
THE INJUNCTION TO STAY LITIGATION IN A STATE COURT."  /12/  MORE
RECENTLY, WE CHARACTERIZED THE STATUTE AS DESIGNED TO ASSURE "THE
MAINTENANCE OF STATE JUDICIAL SYSTEMS FOR THE DECISION OF LEGAL
CONTROVERSIES."  /13/ 

WE HAVE IN THE PAST RECOGNIZED THAT NOT EVERY STATE COURT FUNCTION
INVOLVES "LITIGATION" OR "LEGAL CONTROVERSIES."  IN THE CASE OF PRENTIS
V. ATLANTIC COAST LINE R. CO., 211 U.S. 210, THE COURT REVIEWED A
FEDERAL INJUNCTION PREVENTING A STATE COMMISSION FROM FIXING PASSENGER
RAIL RATES.  THE COURT ASSUMED THAT THE COMMISSION HAD THE POWERS OF A
STATE COURT AND THAT THE PREDECESSOR OF SEC. 2283 GOVERNED ANY ATTEMPT
BY A FEDERAL COURT TO ENJOIN THE EXERCISE OF THE COMMISSION'S JUDICIAL
POWERS.  NEVERTHELESS, THE COURT CONCLUDED THAT RATE-MAKING COULD BE
ENJOINED BECAUSE IT WAS LEGISLATIVE IN NATURE.  HENCE, THE COURT HELD
THAT SEC. 2283 DOES NOT RESTRICT A FEDERAL COURT FROM ENJOINING A STATE
COURT WHEN IT IS INVOLVED IN A NONJUDICIAL FUNCTION. 

TO DETERMINE WHETHER AN INDIANA COURT ENGAGES IN A JUDICIAL FUNCTION
IN CONNECTION WITH AN ELECTION RECOUNT, WE TURN TO THE LAW OF THAT
STATE.  /14/  IN INDIANA EVERY CANDIDATE HAS A RIGHT TO A RECOUNT AND
CAN OBTAIN ONE BY MERELY FILING A TIMELY PETITION IN THE CIRCUIT OR
SUPERIOR COURT OF THE APPROPRIATE COUNTY.  IF THE PETITION IS CORRECT
AS TO FORM, THE STATE COURT "SHALL . . . GRANT SUCH PETITION . . . AND
ORDER THE RECOUNT.  . . . "  WHEN IT GRANTS A PETITION, THE COURT IS
REQUIRED TO APPOINT THREE COMMISSIONERS TO CARRY OUT THE RECOUNT.  ONCE
THESE APPOINTMENTS ARE MADE, THE INDIANA COURT HAS NO OTHER
RESPONSIBILITIES OR POWERS.  /15/ 

THE EXERCISE OF THESE LIMITED RESPONSIBILITIES DOES NOT CONSTITUTE A
COURT PROCEEDING UNDER SEC. 2283 WITHIN THE TEST OF PRENTIS:  "A
JUDICIAL INQUIRY INVESTIGATES, DECLARES AND ENFORCES LIABILITIES AS
THEY STAND ON PRESENT OR PAST FACTS AND UNDER LAWS SUPPOSED ALREADY TO
EXIST.  THAT IS ITS PURPOSE AND END."  211 U.S.,AT 226.  THE STATE
COURTS' DUTIES IN CONNECTION WITH A RECOUNT MAY BE CHARACTERIZED AS
MINISTERIAL, OR PERHAPS ADMINISTRATIVE, BUT THEY CLEARLY DO NOT FALL
WITHIN THIS DEFINITION OF A "JUDICIAL INQUIRY."  THE PROCESS OF
DETERMINING THAT THE RECOUNT PETITION IS CORRECT AS TO FORM-- THAT IT
CONTAINS THE PROPER INFORMATION, SUCH AS THE NAMES AND ADDRESSES OF ALL
CANDIDATES, AND IS TIMELY FILED-- IS CLEARLY NOT A JUDICIAL
PROCEEDING.  NONJUDICIAL FUNCTIONARIES CONTINUALLY MAKE SIMILAR
DETERMINATIONS IN THE PROCESSING OF ALL KINDS OF APPLICATIONS.  /16/ 

AND FINALLY, HARTKE'S COMPLAINT IN THIS CAUSE DID NOT ASK THE THREE
JUDGE FEDERAL COURT TO RESTRAIN THE ACTION OF THE INDIANA COURT AS
SUCH.  IT DID NOT SEEK TO ENJOIN THE STATE COURT FROM RULING ON THE
FORMAL CORRECTNESS OF THE PETITION; IT DID NOT EVEN SEEK TO ENJOIN THE
STATE COURT'S APPOINTIVE FUNCTION.  IT SOUGHT, RATHER TO ENJOIN THE
RECOUNT COMMISSION FROM PROCEEDING AFTER THE COURT HAD APPOINTED THE
MEMBERS OF THE COMMISSION.  /17/ 

WE CONCLUDE THAT THE THREE-JUDGE DISTRICT COURT WAS NOT PROHIBITED
BY SEC. 2283 FROM ISSUING AND HAD POWER UNDER 28 U.S.C. 2281 TO ISSUE,
AND INJUNCTION IN THIS CAUSE. 

        III 

WE TURN, THEREFORE, TO THE MERITS OF THE DISTRICT COURT'S DECISION. 
THE INDIANA ELECTION CODE CALLS FOR THE VOTE TO BE INITIALLY COUNTED,
IN EACH PRECINCT, BY AN ELECTION BOARD.  AFTER RECORDING THE VOTING
MACHINE TOTALS, THE BOARD SEALS THE MACHINES.  PAPER BALLOTS, INCLUDING
ABSENTEE BALLOTS, ARE THEN COUNTED AND TALLIED.  COUNTED BALLOTS ARE
PLACED IN A BAG AND SEALED.  BALLOTS THAT BEAR DISTINGUISHING MARKS OR
ARE MUTILATED OR DO NOT CLEARLY REVEAL THE VOTER'S CHOICE ARE NOT
COUNTED.  THESE REJECTED BALLOTS ARE SEALED IN A SEPARATE BAG.  BOTH
BAGS ARE PRESERVED FOR SIX MONTHS AND MAY NOT BE OPENED EXCEPT IN THE
CASE OF A RECOUNT.  /18/ 

IF A RECOUNT IS CONDUCTED IN ANY COUNTY, THE VOTING MACHINE TALLIES
ARE CHECKED AND THE SEALED BAGS CONTAINING THE PAPER BALLOTS ARE
OPENED.  THE RECOUNT COMMISSION MAY MAKE NEW AND INDEPENDENT
DETERMINATIONS AS TO WHICH BALLOTS INITIALLY COUNTED AND COUNT BALLOTS
INITIALLY REJECTED.  DISPUTES WITHIN THE COMMISSION ARE SETTLED BY A
MAJORITY VOTE.  WHEN THE COMMISSION FINISHES ITS TASK IT SEALS THE
BALLOTS IT COUNTED IN ONE BAG, AND THE BALLOTS IT REJECTED IN ANOTHER. 
ONCE THE RECOUNT IS COMPLETED, ALL PREVIOUS RETURNS ARE SUPERSEDED. 
/19/ 

THE DISTRICT COURT HELD THESE PROCEDURES TO BE CONTRARY TO THE
CONSTITUTION IN TWO WAYS.  FIRST, THE COURT FOUND THAT IN MAKING
JUDGMENTS AS TO WHICH BALLOTS TO COUNT, THE RECOUNT COMMISSION WOULD BE
JUDGING THE QUALIFICATIONS OF A MEMBER OF THE SENATE.  IT HELD THIS
WOULD BE A USURPATION OF A POWER THAT ONLY THE SENATE COULD EXERCISE. 
SECOND, IT FOUND THAT THE INDIANA BALLOTS AND OTHER ELECTION
PARAPHERNALIA WOULD BE ESSENTIAL EVIDENCE THAT THE SENATE MIGHT NEED TO
CONSIDER IN JUDGING HARTKE'S QUALIFICATIONS.  THE COURT FEARED THAT THE
RECOUNT MIGHT ENDANGER THE INTEGRITY OF THOSE MATERIALS AND INCREASE
THE HAZARD OF THEIR ACCIDENTAL DESTRUCTION.  THUS, THE COURT HELD THAT,
EVEN IF THE COMMISSION WOULD NOT BE USURPING THE SENATE'S EXCLUSIVE
POWER, IT WOULD BE HINDERING THE SENATE'S EXERCISE OF THAT POWER. 

WE CANNOT AGREE WITH THE DISTRICT COURT ON EITHER GROUND.  /20/
UNLESS CONGRESS ACTS, ART. I, SEC. 4, EMPOWERS THE STATES TO REGULATE
THE CONDUCT OF SENATORIAL ELECTIONS.  /21/  THIS COURT HAS RECOGNIZED
THE BREADTH OF THOSE POWERS:  "IT CANNOT BE DOUBTED THAT THESE
COMPREHENSIVE WORDS EMBRACE AUTHORITY TO PROVIDE A COMPLETE CODE FOR
CONGRESSIONAL ELECTIONS, NOT ONLY AS TO TIMES AND PLACES, BUT IN
RELATION TO NOTICES, REGISTRATION, SUPERVISION OF VOTING, PROTECTION OF
VOTERS, PREVENTION OF FRAUD AND CORRUPT PRACTICES, COUNTING OF VOTES,
DUTIES OF INSPECTORS AND CANVASSERS, AND MAKING AND PUBLICATION OF
ELECTION RETURNS; IN SHORT, TO ENACT THE NUMEROUS REQUIREMENTS AS TO
PROCEDURE AND SAFEGUARDS WHICH EXPERIENCE SHOWS ARE NECESSARY IN ORDER
TO ENFORCE THE FUNDAMENTAL RIGHT INVOLVED."  SMILEY V. HOLM, 285 U.S.
355, 366. 

INDIANA HAS FOUND, ALONG WITH MANY OTHER STATES, THAT ONE PROCEDURE
NECESSARY TO GUARD AGAINST IRREGULARITY AND ERROR IN THE TABULATION OF
VOTES IS THE AVAILABILITY OF A RECOUNT.  DESPITE THE FACT THAT A
CERTIFICATE OF ELECTION MAY BE ISSUED TO THE LEADING CANDIDATE WITHIN
30 DAYS AFTER THE ELECTION, THE RESULTS ARE NOT FINAL IF A CANDIDATE'S
OPTION TO COMPEL A RECOUNT IS EXERCISED.  /22/  A RECOUNT IS AN
INTEGRAL PART OF THE INDIANA ELECTORAL PROCESS AND IS WITHIN THE AMBIT
OF THE BROAD POWERS DELEGATED TO THE STATES BY ART. I, SEC. 4. 

IT IS TRUE THAT A STATE'S VERIFICATION OF THE ACCURACY OF ELECTION
RESULTS PURSUANT TO ITS ART. I, SEC. 4, POWERS IS NOT TOTALLY SEPARABLE
FROM THE SENATE'S POWER TO JUDGE ELECTIONS AND RETURNS.  BUT A RECOUNT
CAN BE SAID TO "USURP" THE SENATE'S FUNCTION ONLY IF IT FRUSTRATES THE
SENATE'S ABILITY TO MAKE AN INDEPENDENT FINAL JUDGMENT.  A RECOUNT DOES
NOT PREVENT THE SENATE FROM INDEPENDENTLY EVALUATING THE ELECTION ANY
MORE THAN THE INITIAL COUNT DOES.  THE SENATE IS FREE TO ACCEPT OR
REJECT THE APPARENT WINNER IN EITHER COUNT, /23/  AND, IF IT CHOOSES,
TO CONDUCT ITS OWN RECOUNT.  /24/ 

IT WOULD BE NO MORE THAN SPECULATION TO ASSUME THAT THE INDIANA
RECOUNT PROCEDURE WOULD IMPAIR SUCH AN INDEPENDENT EVALUATION BY THE
SENATE.  THE DISTRICT COURT'S HOLDING WAS BASED ON A FINDING THAT A
RECOUNT WOULD INCREASE THE PROBABILITY OF ELECTION FRAUD AND ACCIDENTAL
DESTRUCTION OF BALLOTS.  BUT THERE IS NO REASON TO SUPPOSE THAT A COURT
APPOINTED RECOUNT COMMISSION WOULD BE LESS HONEST OR CONSCIENTIOUS IN
THE PERFORMANCE OF ITS DUTIES THAN THE PRECINCT ELECTION BOARDS THAT
INITIALLY COUNTED THE BALLOTS. 

FOR THE REASONS EXPRESSED, WE CONCLUDE THAT ART. I, SEC. 5, OF THE
CONSTITUTION, DOES NOT PROHIBIT INDIANA FROM CONDUCTING A RECOUNT OF
THE 1970 ELECTION BALLOTS FOR UNITED STATES SENATOR.  ACCORDINGLY, THE
JUDGMENT OF THE DISTRICT COURT IS REVERSED. 

   IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 70-67, SENDAK, ATTORNEY GENERAL OF INDIANA V.
HARTKE ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

/1/  ROUDEBUSH FILED SIMILAR PETITIONS IN 10 OTHER COUNTIES. 
RECOUNTS IN ALL 11 COUNTIES HAVE BEEN POSTPONED, PENDING THE OUTCOME OF
THIS CAUSE. 

/2/  TITLE 28 U.S.C. 1343 PROVIDES:     "THE DISTRICT COURTS SHALL
HAVE ORIGINAL JURISDICTION OF ANY CIVIL ACTION AUTHORIZED BY LAW TO BE
COMMENCED BY ANY PERSON:

        .          .          .          . 

"(3) TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,
STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT,
PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED STATES
OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF CITIZENS OR OF
ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES." 

THE DISTRICT COURT APPARENTLY VIEWED THE SUIT AS SUBSTANTIVELY BASED
UPON 42 U.S.C. 1983, WHICH AUTHORIZES A CIVIL ACTION ON THE PART OF A
PERSON DEPRIVED, UNDER COLOR OF STATE LAW, "OF ANY RIGHTS, PRIVILEGES,
OR IMMUNITIES SECURED BY CONSTITUTION . . . . " 

/3/  U.S. CONST., ART. I, SEC. 5, PROVIDES IN PERTINENT PART: 

"EACH HOUSE SHALL BE THE JUDGE OF THE ELECTIONS, RETURNS AND
QUALIFICATIONS OF ITS OWN MEMBERS . . . . " 

/4/  DIRECT APPEALS FROM SUCH INTERLOCUTORY ORDERS ARE AUTHORIZED BY
28 U.S.C. 1253. 

/5/  117 CONG.REC.  6. 

/6/  SEE REED V. COUNTY COMM'RS, 277 U.S. 376, 388:  "(THE SENATE)
IS THE JUDGE OF THE ELECTIONS, RETURNS AND QUALIFICATIONS OF ITS
MEMBERS.  ART. I, SEC. 5.  IT IS FULLY EMPOWERED, AND MAY DETERMINE
SUCH MATTERS WITHOUT THE AID OF THE HOUSE OF REPRESENTATIVES OR THE
EXECUTIVE OR JUDICIAL DEPARTMENT." 

/7/  POWELL V. MCCORMACK, 395 U.S. 486. 

/8/  U.S. CONST., ART. I, SEC. 4, PROVIDES IN PERTINENT PART: 

"THE TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR SENATORS AND
REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE BY THE LEGISLATURE
THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR ALTER SUCH
REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING SENATORS." 

/9/ SEE POWELL V. MCCORMACK, SUPRA, AT 496. 

/10/  TITLE 28 U.S.C. 2283 PROVIDES: 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

/11/  THE STATUTE DATES FROM 1793.  ACT OF MAR. 2, 1793, SEC. 5, 1
STAT. 334. 

/12/  TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118, 132. 

/13/  ATLANTIC COAST LINE R. CO. V. BROTHERHOOD OF LOCOMOTIVE
ENGINEERS, 398 U.S. 281, 285. 

/14/  SEE HILL V. MARTIN, 296 U.S. 393, 398. 

/15/  IND. ANN. STAT.  SECS. 29-5401 THROUGH 29-5417.  THE ELECTION
RECOUNT PROVISIONS OF SOME OTHER STATES APPEAR TO GIVE THE STATE COURTS
A BROADER FUNCTION.  SEE, E.G., CONN. GEN. STAT. REV. SEC. 9-323; VA.
CODE ANN. SEC. 24-277.1 (1969). 

/16/  THE ROLE OF THE INDIANA COURTS IN THIS CONNECTION IS NOT
UNLIKE THAT OF THE STATE COURT IN THE CASE OF PUBLIC SERVICE CO. OF
NORTHERN ILLINOIS V. CORBOY, 250 U.S. 153.  A STATE STATUTE THERE
AUTHORIZED PROPERTY OWNERS TO PETITION A STATE COURT TO ESTABLISH A
DRAINAGE DISTRICT AND TO CONSTRUCT A DRAINAGE DITCH.  TO ASSIST IN THE
PLANNING OF A DITCH, THE STATE COURT WAS EMPOWERED TO APPOINT A
DRAINAGE COMMISSIONER.  THE COMMISSIONER SERVED ON A COMMISSION THAT
SUBMITTED PLANS FOR CONSTRUCTION.  THE STATE COURT COULD EITHER ACCEPT
OR REJECT THESE SUBMISSIONS.  IF IT APPROVED PLANS, THE COURT ALLOCATED
FUNDS AND SUPERVISED CONSTRUCTION.  APPLYING PRENTIS, THIS COURT HELD
THAT THESE ACTIVITIES WERE NOT JUDICIAL, AND THAT ENJOINING THE
CONSTRUCTION OF A DRAINAGE DITCH WAS NOT ENJOINING A STATE COURT
"PROCEDING."  SEE ALSO CENTRAL ELECTRIC & GAS CO. V. CITY OF
STROMSBURG, 192 F.SUPP.  280, AFF'D 289 F.2D 217 (FEDERAL COURT COULD
ENJOIN A STATE COURT'S APPOINTMENT OF AN APPRAISER PURSUANT TO A STATE
STATUTE); CENTRAL R. CO. OF NEW JERSEY V. MARTIN, 19 F.SUPP.  82, AFF'D
SUB NON.  LELIGH VALLEY R. CO. V. MARTIN, 100 F.2D 139 (FEDERAL COURT
COULD ENJOIN MINISTERIAL ACT OF STATE JUDGE, PURSUANT TO STATE STATUTE,
CONVERTING A STATE TAX INTO A LIEN AGAINST THE TAXPAYER); WEIL V.
CALHOUN, 25 F. 865 (FEDERAL COURT COULD ENJOIN A STATE ORDINARY, HAVING
THE POWERS OF A PROBATE JUDGE, FROM DECLARING THE RESULTS OF A COUNTY
ELECTION). 

/17/  THE ONLY INJUNCTIVE RELIEF SOUGHT IN HARTKE'S AMENDED
COMPLAINT WAS "THAT THE COURT PERMANENTLY RESTRAIN AND ENJOIN THE
DEFENDANTS AND RESTRAINING AND ENJOINING THE DEFENDANTS SAMUEL WALKER,
JOHN R. HAMMOND AND DUGE BUTLER (THE RECOUNT COMMISSIONERS) FROM
CONVENING AND COMMENCING A RECOUNT, AND THE DEFENDANT RICHARD L.
ROUDEBUSH AND ALL PERSONS ACTING IN HIS BEHALF OR IN CONCERT WITH HIM
(FROM) TAKING ANY FURTHER ACTION TO USE SAID MACHINERY AND PROCEDURES
TO CARRY FORWARD A RECOUNT OF THE VOTE FOR THE OFFICE OF UNITED STATES
SENATOR IN THE GENERAL ELECTION OF NOVEMBER 3, 1970."  AN INTERLOCUTORY
INJUNCTION AGAINST THE SAME DEFENDANTS WAS ALSO SOUGHT. 

/18/  IND. ANN. STAT. SECS. 29-5201 THROUGH 29-5220. 

/19/  IND. ANN. STAT. SECS. 29-5401 THROUGH 29-5417. 

/20/  THE DISTRICT COURT CITED THREE CASES DECIDED BY THE INDIANA
SUPREME COURT AS AUTHORITY FOR ITS RULINGS.  STATE EX REL. BATCHELET V.
DEKALB CIRCUIT COURT, 248 IND. 481, 229 N.E.2D 798; STATE EX REL.
BEAMAN V. CIRCUIT COURT OF PIKE COUNTY, 229 IND. 190, 96 N.E.2D 671;
STATE EX REL. ACKER V. REEVES, 229 IND. 126, 95 N.E.2D 838.  THESE
CASES HELD THAT THE INDIANA CONSTITUTION PROHIBITED RECOUNTS IN CERTAIN
STATE ELECTIONS.  THEY DO NOT ADDRESS THE FEDERAL CONSTITUTIONAL
QUESTION AT ISSUE IN THIS CAUSE. 

/21/  SEE N. 8, SUPRA. 

/22/  THE SECRETARY OF STATE IS REQUIRED BY STATUTE TO CERTIFY TO
THE GOVERNOR THE LEADING CANDIDATE AS DULY ELECTED "AS SOON AS HE SHALL
RECEIVE" CERTIFIED STATEMENTS FROM THE COUNTIES.  THE STATUTORY PERIOD
FOR RECEIVING THOSE STATEMENTS IS 26 DAYS.  THE GOVERNOR IS REQUIRED TO
GIVE A CERTIFICATE OF ELECTION TO EACH CERTIFIED CANDIDATE.  IND. ANN.
STAT. SECS. 29-5306 THROUGH 29-5309. 

A PETITION FOR A RECOUNT MAY BE FILED 15 DAYS AFTER THE ELECTION IS
HELD.  SEC. 29-5403.  THE PETITION CANNOT BE GRANTED NOR THE RECOUNT
COMMISSION APPOINTED BY THE COURT FOR ANOTHER 25 DAYS.  SEC. 29-5409. 
THE RECOUNT MAY NOT COMMENCE UNTIL AT LEAST FIVE DAYS AFTER THE
COMMISSION IS APPOINTED.  SEC. 29-5411.  ADDITIONAL TIME ELAPSES BEFORE
THE RESULTS ARE MADE FINAL AND THE APPROPRIATE PERSONS ARE NOTIFIED. 
THUS, THE RECOUNT IS UNLIKELY TO BE COMPLETED BEFORE THE GOVERNOR
BECOMES OBLIGED BY STATUTE TO ISSUE A CERTIFICATE OF ELECTION BASED ON
THE INITIAL COUNT.  NEVERTHELESS, THE RECOUNT SUPERSEDES THE INITIAL
COUNT EVEN THOUGH A CERTIFICATE OF ELECTION MAY HAVE BEEN ISSUED.  SEC.
29-5415. 

/23/  THE SENATE'S POWER TO JUDGE THE QUALIFICATIONS OF ITS MEMBERS
IS LIMITED TO THE QUALIFICATIONS EXPRESSLY SET FORTH IN THE
CONSTITUTION.  POWELL V. MCCORMACK, 395 U.S. 486.  ONE OF THOSE
QUALIFICATIONS IS THAT A SENATOR BE ELECTED BY THE PEOPLE OF HIS
STATE.  U.S. CONST., AMEND. XVII. 

/24/  THE SENATE ITSELF HAS RECOUNTED THE VOTES IN CLOSE ELECTIONS
IN STATES WHERE THERE WAS NO RECOUNT PROCEDURE.  E.G., O'CONOR V.
MARKEY, SENATE ELECTION, EXPULSION AND CENSURE CASES FROM 1789 TO 1960,
S. DOC. NO. 71, 87TH CONG., 2D SESS., 144 (1962). 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING IN PART. 

WHILE I AGREE WITH THE COURT THAT THE CASES ARE NOT MOOT AND THAT
THE THREE-JUDGE COURT WAS NOT BARRED BY 28 U.S.C. 2283 FROM ISSUING AN
INJUNCTION, I DISAGREE ON THE MERITS. 

BY VIRTUE OF ART. I, SEC. 5, SENATE CUSTOM, AND THIS COURT'S PRIOR
HOLDINGS, THE SENATE, HAS EXCLUSIVE AUTHORITY TO SETTLE A RECOUNT
CONTEST ONCE THE CONTESTEE HAS BEEN CERTIFIED AND SEATED, ALBEIT
CONDITIONALLY. 

ARTICLE I, SEC. 5, PROVIDES:  "EACH HOUSE SHALL BE THE JUDGE OF THE
ELECTIONS, RETURNS AND QUALIFICATIONS OF ITS OWN MEMBERS."  TO
IMPLEMENT THIS AUTHORITY, THE SENATE HAS ESTABLISHED A CUSTOM OF
RESOLVING DISAGREEMENTS OVER WHICH OF TWO OR MORE CANDIDATES IN A
SENATORIAL RACE ATTRACTED MORE BALLOTS.  THE APPARENT LOSER MAY
INITIATE THE PROCESS BY FILING WITH THE SENATE A PETITION STATING (A)
WHAT VOTING IRREGULARITIES HE SUSPECTS, AND (B) HOW MANY VOTES WERE
AFFECTED.  UPON RECEIPT OF SUCH A PETITION, A SPECIAL COMMITTEE MAY BE
AUTHORIZED TO INVESTIGATE THE CHARGES ALLEGED.  IF THE ALLEGATIONS ARE
NOT FRIVOLOUS AND WOULD BE SUFFICIENT, IF TRUE, TO ALTER THE APPARENT
OUTCOME OF THE ELECTION, ACTUAL BALLOTS MAY BE AND HAVE BEEN SUBPOENAED
TO WASHINGTON FOR RECOUNTING BY THE COMMITTEE.  ALSO, WITNESSES MAY BE
REQUIRED TO TESTIFY.  THE COMMITTEE PERFORMS THE FUNCTIONS OF DECIDING
BOTH THE FACTUAL ISSUES AND WHAT ALLEGATIONS WOULD BE SUFFICIENT TO
WARRANT FAVORABLE ACTION ON A PETITION. 

THUS, IN THE IOWA SENATORIAL CAMPAIGN OF 1924, SMITH BROOKHART WAS
THE APPARENT WINNER OVER DANIEL STECK, WHO FILED WITH THE SENATE THE
COMPLAINT THAT ILLEGAL VOTES HAD BEEN CAST FOR HIS OPPONENT.  THE
PETITION WAS REFERRED TO THE SUBCOMMITTEE ON PRIVILEGES AND ELECTIONS
WHICH WAS AUTHORIZED TO MAKE A FULL INVESTIGATION.  IT HEARD TESTIMONY
AND RECOUNTED THE BALLOTS IN WASHINGTON.  THE COMMITTEE AND EVENTUALLY
THE SENATE AGREED THAT, CONTRARY TO EARLIER ASSUMPTIONS, STECK HAD
WON.  ACCORDINGLY, BROOKHART WAS REPLACED BY STECK AS A SENATOR FROM
IOWA.  SEE STECK V. BROOKHART, SENATE ELECTION, EXPULSION AND CENSURE
CASES FROM 1789 TO 1960, S. DOC. NO. 71, 87TH CONG., 2D SESS., 116-117
(1962).  SEE ALSO HURLEY V. CHAVEZ, ID., AT 151 (UPON COUNTING, THE
SUBCOMMITTEE AND THE SENATE FOUND THAT NEITHER CANDIDATE HAD WON AND
THE SEAT WAS DECLARED VACANT); SWEENEY V. KILGORE, ID., AT 145
(ADJUSTMENTS FOR FRAUDULENT CAMPAIGN TACTICS WERE INSUFFICIENT TO
REVERSE OFFICIAL OUTCOME); O'CONOR V. MARKEY, ID., AT 144 (RECOUNT OF
ALL VOTES CAST IN 1946 MARYLAND RACE REVEALED TOO FEW MISTAKES TO CAUSE
REVERSAL IN OUTCOME); WILLIS V. VAN NUYS, ID., AT 138-139 (PETITION
REJECTED AS INSUFFICIENT GROUNDS FOR RECOUNT); BURSUM V. BRATTON, ID.,
AT 114 (RECOUNT WILL NOT BE CONDUCTED ABSENT A SHOWING OF GROUNDS TO
DOUBT THE ACCURACY OF OFFICIAL COUNT). 

THE SENATE'S PROCEDURE IS FLEXIBLE: 

     "THE SENATE HAS NEVER PERFECTED SPECIFIC RULES FOR CHALLENGING

  THE RIGHT OF A CLAIMANT TO SERVE, INASMUCH AS EACH CASE PRESENTS

DIFFERENT FACTS.  THE PRACTICE HAS BEEN TO CONSIDER AND ACT UPON

  EACH CASE ON ITS OWN MERITS, ALTHOUGH SOME GENERAL PRINCIPLES

  HAVE BEEN EVOLVED FROM THE PRECEDENTS ESTABLISHED. 

      "THIS PRACTICE OF VIEWING EACH CASE AFFECTING CLAIMS TO

  MEMBERSHIP ON ITS INDIVIDUAL MERITS HAS RESULTED IN A VARIETY OF

  MEANS BY WHICH THE CASES ARE ORIGINATED.  THE SENATOR-ELECT TO A

  SEAT IN THE SENATE GENERALLY APPEARS WITH HIS CREDENTIALS.  ON

  SOME OCCASIONS, WHEN THESE CREDENTIALS ARE PRESENTED, SOME

  SENATORS WILL SUBMIT A MOTION THAT THE CREDENTIALS BE REFERRED TO

  THE COMMITTEE ON RULES AND ADMINISTRATION, AND THAT, PENDING

  REPORT, HE BE DENIED THE PRIVILEGE OF TAKING THE OATH OF OFFICE. 

  UPON ADOPTION OF SUCH A MOTION, THE SENATOR-ELECT STEPS ASIDE AND

  THE SENATE SEAT IS VACANT FOR THE TIME BEING.  ANY QUESTION OR

  MOTION ARISING OR MADE UPON THE PRESENTATION OF SUCH CREDENTIALS

  IS PRIVILEGED AND WOULD BE GOVERNED BY A MAJORITY VOTE. 

     "ON OTHER OCCASIONS, THE SENATOR-ELECT IS PERMITTED TO TAKE
THE

  OATH OF OFFICE, AND THIS IS NOW REGARDED AND FOLLOWED AS THE

  PROPER PROCEDURE, BUT THEREAFTER INQUIRY AS TO HIS ELECTION IS

  UNDERTAKEN BY THE SENATE.  RESOLUTIONS CALLING FOR SUCH

  INVESTIGATIONS MAY BE OFFERED BY ANY SENATOR.  IN AN INSTANCE

  WHERE A NEWSPAPER CHARGED A SENATOR HAD OBTAINED HIS OFFICE BY

  ILLEGAL MEANS, THE SENATOR HIMSELF OFFERED A RESOLUTION CALLING

  FOR AN INVESTIGATION OF THE CHARGES. 

     "THE USUAL ORIGIN OF SUCH CASES, HOWEVER, IS BY PETITION.  THE

  CONTESTANT MAY FILE SUCH A PETITION, PROTESTING THE SEATING OF

  THE CONTESTEE, AND ASSERTING HIS OWN RIGHT TO THE SEAT IN

  QUESTION.  IT IS NOT REQUIRED TO BE FILED PRIOR TO THE

  SWEARING-IN OF THE CONTESTEE, AND NO RIGHTS ARE LOST IF FILED

  AFTERWARDS.  IN SOME CASES, PETITIONS HAVE BEEN SIGNED AND FILED

  BY OTHERS THAN THE CONTESTANT, SIMPLY PROTESTING AGAINST THE

  SEATING OF THE CONTESTEE, WITHOUT ASSERTING ANY CLAIM IN BEHALF

  OF THE DEFEATED CANDIDATE.  ANY NUMBER OF CITIZENS MAY SUBMIT

  SUCH A PETITION; AND IT MIGHT MAKE CHARGES OF ILLEGAL PRACTICES

  IN THE ELECTION, OR OF THE IMPROPER USE OF MONEY, OR EVEN OF THE

  UNFITNESS OF THE CLAIMANT TO SERVE IN THE UNITED STATES SENATE. 

    "A PETITION OF CONTEST IS ADDRESSED TO THE U.S. SENATE, AND MAY

  BE LAID BEFORE THE SENATE BY THE PRESIDING OFFICER OR FORMALLY

  PRESENTED BY SOME SENATOR.  THERE IS NO PRESCRIBED FORM FOR SUCH

  A PETITION.  IT IS SOMEWHAT ANALOGOUS TO A COMPLAINT FILED IN A

  LAWSUIT.  IT CUSTOMARILY SETS FORTH THE GROUNDS OR CHARGES UPON

  WHICH THE CONTEST IS BASED, AND IN SUPPORT OF WHICH PROOF IS

  EXPECTED TO BE ADDUCED.  THE PETITION IS USUALLY REFERRED TO THE

  COMMITTEE ON RULES AND ADMINISTRATION, WHICH HAS JURISDICTION

 OVER ' . . . MATTERS RELATING TO THE ELECTION OF THE PRESIDENT,

  VICE PRESIDENT, OR MEMBERS OF CONGRESS; CORRUPT PRACTICES;

  CONTESTED ELECTIONS; CREDENTIALS AND QUALIFICATIONS; (AND)

  FEDERAL ELECTIONS GENERALLY . . . . ' 

 "THE LEGISLATIVE REORGANIZATION ACT OF 1946 EMPOWERS EACH

  STANDING COMMITTEE OF THE SENATE, INCLUDING ANY SUBCOMMITTEE OF

  ANY SUCH COMMITTEE, TO HOLD SUCH HEARINGS, TO SIT AND ACT AT SUCH

  TIMES AND PLACES DURING THE SESSIONS, RECESSES, AND ADJOURNED

  PERIODS OF THE SENATE, TO REQUIRE BY SUBPENA OR OTHERWISE THE

  ATTENDANCE OF SUCH WITNESSES AND THE PRODUCTION OF SUCH

  CORRESPONDENCE, BOOKS, PAPERS, AND DOCUMENTS, TO TAKE SUCH

  TESTIMONY AND TO MAKE SUCH EXPENDITURES (NOT IN EXCESS OF $10,000

  FOR EACH COMMITTEE DURING ANY CONGRESS) AS IT DEEMS ADVISABLE. 

  EACH SUCH COMMITTEE MAY MAKE INVESTIGATIONS INTO ANY MATTER

  WITHIN ITS JURISDICTION AND MAY REPORT SUCH HEARINGS AS MAY BE

  HAD BY IT."  S. DOC. NO. 71, 87TH CONG., 2D SESS., VII-VIII

  (1962). 

THE PARTIES BEFORE THE COURT ARE APPARENTLY IN AGREEMENT THAT, AS IS
TRUE OF SEVERAL OTHER ARENAS OF PUBLIC DECISIONMAKING, THERE HAS BEEN A
"TEXTUALLY DEMONSTRABLE CONSTITUTIONAL COMMITMENT" (BAKER V. CARR, 369
U.S. 186, 217; POWELL V. MCCORMACK, 395 U.S. 486, 518-549) TO THE
SENATE OF THE DECISION WHETHER HARTKE OR ROUDEBUSH RECEIVED MORE LAWFUL
VOTES.  OUR CASE LAW AGREES.  BOTH BARRY V. CUNNINGHAM, 279 U.S. 597,
AND REED V. COUNTY COMM'RS, 277 U.S. 376, WERE GENERATED DURING THE
DISPUTED 1926 SENATORIAL ELECTION IN PENNSYLVANIA IN WHICH WILLIAM VARE
APPEARED TO HAVE DEFEATED WILLIAM WILSON.  IN 1926 A SENATE COMMITTEE
WAS AUTHORIZED TO INQUIRE INTO THE MEANS USED TO INFLUENCE THE
NOMINATION OF CANDIDATES IN THAT ELECTION.  THE COMMITTEE ASKED SOME
LOCAL COUNTY COMMISSIONERS TO PRODUCE CERTAIN BALLOTS BUT WERE REFUSED,
WHEREUPON MEMBERS OF THE COMMITTEE SOUGHT A FEDERAL COURT ORDER
COMPELLING THE BALLOTS' PRODUCTION.  ON APPEAL, THIS COURT HELD THAT
BECAUSE THE SENATE HAD BEEN FULLY COMPETENT TO USE ITS OWN SUBPOENA
POWER TO SECURE THE BALLOTS, THE DISTRICT COURT HAD LACKED JURISDICTION
TO ACT ONLY AT THE BEHEST OF THE COMMITTEE.  IN THE COURSE OF
DISCUSSING THE COMMITTEE'S SCOPE OF AUTHORITY THE COURT SAID: 

 "THE RESOLUTIONS ARE TO BE CONSTRUED HAVING REGARD TO THE POWER

  POSSESSED AND CUSTOMARILY EXERTED BY THE SENATE.  IT IS THE JUDGE

  OF THE ELECTIONS, RETURNS AND QUALIFICATIONS OF ITS MEMBERS. 

  ART. I, SEC. 5.  IT IS FULLY EMPOWERED, AND MAY DETERMINE SUCH

  MATTERS WITHOUT THE AID OF THE HOUSE OF REPRESENTATIVES OR THE

  EXECUTIVE OR JUDICIAL DEPARTMENT.  THAT POWER CARRIES WITH IT

  AUTHORITY TO TAKE SUCH STEPS AS MAY BE APPROPRIATE AND NECESSARY

  TO SECURE INFORMATION UPON WHICH TO DECIDE CONCERNING

  ELECTIONS."  277 U.S.,AT 388. 

IN BARRY V. CUNNINGHAM, SUPRA, THE COURT UPHELD THE SENATE'S POWER
UNDER ART. I, SEC. 5, TO CALL WITNESSES BEFORE IT IN ORDER TO DETERMINE
THE FACTUAL HISTORY OF THE SAME CONTROVERTED 1926 ELECTION INVOLVED IN
REED.  IN ANSWER TO THE ARGUMENT THAT VARE HAD NOT BEEN A MEMBER OF THE
SENATE INASMUCH AS HE WAS UNSEATED (AND THEREFORE THE WITNESS WAS
RELIEVED OF THE DUTY TO ANSWER INQUIRIES) THE COURT HELD: 

"IT IS ENOUGH TO SAY . . . THAT UPON THE FACE OF THE RETURNS (VARE)
HAD BEEN ELECTED AND HAD RECEIVED A CERTIFICATE FROM THE GOVERNOR OF
THE STATE TO THAT EFFECT.  UPON THESE RETURNS AND WITH THIS
CERTIFICATE, HE PRESENTED HIMSELF TO THE SENATE, CLAIMING ALL THE
RIGHTS OF MEMBERSHIP.  THEREBY, THE JURISDICTION OF THE SENATE TO
DETERMINE THE RIGHTFULNESS OF THE CLAIM WAS INVOKED AND ITS POWER TO
ADJUDICATE SUCH RIGHT IMMEDIATELY ATTACHED BY VIRTUE OF SEC. 5 OF
ARTICLE I OF THE CONSTITUTION."  BARRY V. CUNNINGHAM, SUPRA, AT 614. 

AND CUNNINGHAM HOLDS THAT, "THE SENATE, HAVING SOLE AUTHORITY UNDER
THE CONSTITUTION TO JUDGE OF THE ELECTIONS, RETURNS AND QUALIFICATIONS
OF ITS MEMBERS, MAY EXERCISE IN ITS OWN RIGHT THE INCIDENTAL POWER OF
COMPELLING THE ATTENDANCE OF WITNESSES WITHOUT THE AID OF A STATUTE." 
ID., AT 619.  JUDICIAL INTERFERENCE WITH THIS "INDUBITABLE POWER" WAS
SAID TO BE POSSIBLE ONLY UPON A CLEAR SHOWING OF "SUCH ARBITRARY AND
IMPROVIDENT USE OF THE POWER AS WILL CONSTITUTE A DENIAL OF DUE PROCESS
OF LAW."  ID., AT 620. 

ONCE CERTIFICATION BY THE GOVERNOR HAS BEEN PRESENTED TO THE SENATE,
A STATE MAY NOT BY CONDUCTING A RECOUNT ALTER THE OUTCOME OF THE
ELECTION-- A PRINCIPLE THAT HAS BEEN WIDELY RECOGNIZED BY STATE
COURTS.  SEE LAXALT V. CANNON, 80 NEV. 488, 397 P.2D 466, AND CASES
CITED THEREIN. 

THUS, ALTHOUGH THE HOUSES OF CONGRESS MAY NOT ENGRAFT QUALIFICATIONS
FOR MEMBERSHIP BEYOND THOSE ALREADY CONTAINED IN ART. I, POWELL V.
MCCORMACK, 395 U.S. 486, WHERE ALL THAT IS AT STAKE IS A DETERMINATION
OF WHICH CANDIDATES ATTRACTED THE GREATER NUMBER OF LAWFUL BALLOTS,
EACH HAS SUPREME AUTHORITY TO RESOLVE SUCH CONTROVERSIES.  /1/ 

ALTHOUGH ALL AGREE THAT IN THE END THE SENATE WILL BE THE FINAL
JUDGE OF THIS SEATING CONTEST, THE NUB OF THE INSTANT CASE COMES DOWN
TO OPPOSSING POSITIONS ON HOW IMPORTANT IT MAY BE TO PRESERVE FOR THE
SENATE THE OPPORTUNITY TO GROUND ITS CHOICE IN UNIMPEACHABLE EVIDENCE. 
IT IS WITH REGARD TO THIS PHRASE OF THE CASES THAT I DISAGREE WITH THE
MAJORITY. 

THE SENATE MAY CONCLUDE THAT ONLY A RECOMPUTATION SUPERVISED BY IT
UNDER LABORATORY CONDITIONS COULD SERVE AS AN ACCEPTABLE GUIDE FOR
DECISION.  SUCH A RECOMPUTATION, HOWEVER, WILL NOT BE POSSIBLE ONCE
LOCAL INVESTIGATORS HAVE EXPOSED THESE PRESENTLY SEALED BALLOTS TO
HUMAN JUDGMENT. 

OBVIOUSLY, STATE OFFICIALS MIGHT DESIRE TO PREVIEW THESE PRESENTLY
SEALED BALLOTS IN ORDER TO INFLUENCE THE SENATE'S DELIBERATIONS. 

CHARGES OR SUSPICIONS OF INADVERTENT OR INTENTIONAL ALTERATION,
HOWEVER BASELESS, WILL INFECT THE CASE.  NO LONGER WILL THE
CONSTITUTIONALLY DESIGNATED TRIBUNAL BE ABLE TO BOTTOM ITS RESULT ON
UNASSAILED EVIDENCE.  SINCE EVEN A SLIGHT ADJUSTMENT IN THE TALLY COULD
DRAMATICALLY REVERSE THE OUTCOME, THE FEDERAL INTEREST IN PRESERVING
THE INTEGRITY OF THE EVIDENCE IS MANIFEST. 

WHAT THE SENATE SHOULD DO IN THE MERITS IS NOT A JUSTICIABLE
CONTROVERSY.  THE ROLE OF THE COURTS IS TO PROTECT THE SENATE'S
EXCLUSIVE JURISDICTION OVER THE SUBJECT MATTER, AS DID THIS COURT IN
BARRY V. CUNNINGHAM, SUPRA.  THE SENATE'S SUBCOMMITTEE ON PRIVILEGES
AND ELECTIONS, FOR EXAMPLE, MIGHT SUBPOENA THESE BALLOTS, THEREBY
PRECLUDING, AS A PRACTICAL MATTER, ANY LOCAL RECOUNT.  OR THE SENATE
MIGHT ASK FOR A LOCAL RECOUNT.  EITHER COURSE IS WITHIN THE CONTROL AND
DISCRETION OF THE SENATE AND IS UNREVIEWABLE BY THE COURTS.  THE
DISTRICT COURT HAD JURISDICTION ONLY TO PROTECT THE SENATE'S CHOICE,
/2/  NOT TO MAKE THE CHOICE FOR OR ON BEHALF OF THE SENATE. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

/1/  SEVERAL AREAS OF DECISIONMAKING ARE IMMUNE FROM JUDICIAL REVIEW
BY FEDERAL COURTS.  THE CASES ARE REVIEWED IN BAKER V. CARR, 369 U.S.
186. 

/2/  CF. EX PARTE PERU, 318 U.S. 578. 

DONALD A. SCHABEL ARGUED THE CAUSE FOR APPELLANT IN NO. 70-66.  WITH
HIM ON THE BRIEFS WAS L. KEITH BULEN.  RICHARD C. JOHNSON, CHIEF DEPUTY
ATTORNEY GENERAL OF INDIANA, ARGUED THE CAUSE FOR APPELLANT IN NO. 70
67.  ON THE BRIEFS WERE THEODORE L. SENDAK, ATTORNEY GENERAL, PRO SE,
WILLIAM F. THOMPSON, ASSISTANT ATTORNEY GENERAL, AND MARK PEDEN, DEPUTY
ATTORNEY GENERAL. 

JOHN J. DILLON ARGUED THE CAUSE FOR APPELLEES IN BOTH CASES.  WITH
HIM ON THE BRIEF FOR APPELLEE HARTKE WERE DAVID W. MERNITZ AND JAMES L.
TUOHY. 
..END :










PARISI V. DAVIDSON, 405 U.S. 34 


       PARISI V. DAVIDSON ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 70-91.  ARGUED OCTOBER 19-20, 1971-- DECIDED FEBRUARY

           23, 1972 


PETITIONER, A MEMBER OF THE ARMED FORCES, APPLIED UNSUCCESSFULLY FOR
DISCHARGE AS A CONSCIENTIOUS OBJECTOR.  AFTER HE HAD EXHAUSTED ALL HIS
ADMINISTRATIVE REMEDIES, HE FILED A HABEAS CORPUS PETITION IN FEDERAL
DISTRICT COURT, CLAIMING THAT THE ARMY'S DENIAL OF HIS APPLICATION WAS
WITHOUT BASIS IN FACT.  THEREAFTER COURT-MARTIAL CHARGES WERE BROUGHT
AGAINST HIM, AND THE DISTRICT COURT ORDERED CONSIDERATION OF THE
PETITION DEFERRED UNTIL FINAL DETERMINATION OF THE COURT-MARTIAL
PROCEEDINGS.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE DISTRICT COURT
SHOULD NOT HAVE STAYED ITS HAND IN THIS CASE.  PP. 37-45. 

(A) ALL ALTERNATIVE ADMINISTRATIVE REMEDIES HAVE BEEN EXHAUSTED BY
PETITIONER.  PP. 37-39. 

(B) SINCE THE MILITARY JUDICIAL SYSTEM IN ITS PROCESSING OF THE
COURT-MARTIAL CHARGE COULD NOT PROVIDE THE DISCHARGE SOUGHT BY
PETITIONER WITH PROMPTNESS AND CERTAINTY, THE DISTRICT COURT SHOULD
PROCEED TO DETERMINE THE HABEAS CORPUS CLAIM DESPITE THE PENDENCY OF
THE COURT-MARTIAL PROCEEDINGS.  PP. 39-45. 

435 F.2D 299, REVERSED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED. 
DOUGLAS, J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 46. 
POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASE. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

WHEN A MEMBER OF THE ARMED FORCES HAS APPLIED FOR A DISCHARGE AS A
CONSCIENTIOUS OBJECTOR AND HAS EXHAUSTED ALL AVENUES OF ADMINISTRATIVE
RELIEF, IT IS NOW SETTLED THAT HE MAY SEEK HABEAS CORPUS RELIEF IN A
FEDERAL DISTRICT COURT ON THE GROUND THAT THE DENIAL OF HIS APPLICATION
HAD NO BASIS IN FACT.  THE QUESTION IN THIS CASE IS WHETHER THE
DISTRICT COURT MUST STAY ITS HAND WHEN COURT-MARTIAL PROCEEDINGS ARE
PENDING AGAINST THE SERVICEMAN. 

THE PETITIONER, JOSEPH PARISI, WAS INDUCTED INTO THE ARMY AS A
DRAFTEE IN AUGUST 1968.  NINE MONTHS LATER HE APPLIED FOR A DISCHARGE
AS A CONSCIENTIOUS OBJECTOR, CLAIMING THAT EARLIER DOUBTS ABOUT
MILITARY SERVICE HAD CRYSTALLIZED INTO A FIRM CONVICTION THAT ANY FORM
OF MILITARY ACTIVITY CONFLICTED IRRECONCILABLY WITH HIS RELIGIOUS
BELIEFS.  HE WAS INTERVIEWED BY THE BASE CHAPLIN, THE BASE
PSYCHIATRIST, AND A SPECIAL HEARING OFFICER.  THEY ALL ATTESTED TO THE
PETITIONER'S SINCERITY AND TO THE RELIGIOUS CONTENT OF HIS PROFESSED
BELIEFS.  IN ADDITION, THE COMMANDING GENERAL OF THE PETITIONER'S ARMY
TRAINING CENTER AND THE COMMANDER OF THE ARMY HOSPITAL RECOMMENDED THAT
THE PETITIONER BE DISCHARGED AS A CONSCIENTIOUS OBJECTOR.  HIS
IMMEDIATE COMMANDING OFFICER, AN ARMY CAPTAIN, DISAGREED, RECOMMENDING
DISAPPROVAL OF THE APPLICATION ON THE GROUND THAT THE PETITIONER'S
BELIEFS WERE BASED ON ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR
PHILOSOPHICAL VIEWS, OR ON A MERELY PERSONAL MORAL CODE. 

IN NOVEMBER 1969, THE DEPARTMENT OF THE ARMY DENIED THE PETITIONER
CONSCIENTIOUS OBJECTOR STATUS, ON THE GROUNDS THAT HIS PROFESSED
BELIEFS HAD BECOME FIXED PRIOR TO ENTERING THE SERVICE AND THAT HIS
OPPOSITION TO WAR WAS NOT TRULY BASED UPON HIS RELIGIOUS BELIEFS.  ON
NOVEMBER 24, 1969, THE PETITIONER APPLIED TO THE ARMY BOARD FOR
CORRECTION OF MILITARY RECORDS (HEREAFTER SOMETIMES ABCMR) FOR
ADMINISTRATIVE REVIEW OF THAT DETERMINATION. 

FOUR DAYS LATER THE PETITIONER COMMENCED THE PRESENT HABEAS CORPUS
PROCEEDING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, CLAIMING THAT THE ARMY'S DENIAL OF HIS
CONSCIENTIOUS OBJECTOR APPLICATION WAS WITHOUT BASIS IN FACT.  HE
SOUGHT DISCHARGE FROM THE ARMY AND REQUESTED A PRELIMINARY INJUNCTION
TO PREVENT HIS TRANSFER OUT OF THE JURISDICTION OF THE DISTRICT COURT
AND TO PROHIBIT FURTHER TRAINING PREPARATORY TO BEING TRANSFERRED TO
VIETNAM.  THE DISTRICT COURT DECLINED AT THAT TIME TO CONSIDER THE
MERITS OF THE HABEAS CORPUS PETITION, BUT IT RETAINED JURISDICTION
PENDING A DECISION BY THE ABCMR, AND IN THE MEANTIME ENJOINED ARMY
AUTHORITIES FROM REQUIRING THE PETITIONER TO PARTICIPATE IN ACTIVITY OR
TRAINING BEYOND HIS CURRENT NONCOMBATANT DUTIES. 

SHORTLY THEREAFTER THE PETITIONER RECEIVED ORDERS TO REPORT TO FORT
LEWIS, WASHINGTON, FOR DEPLOYMENT TO VIETNAM, WHERE HE WAS TO PERFORM
NONCOMBATANT DUTIES SIMILIAR TO THOSE THAT HAD BEEN ASSIGNED TO HIM IN
THIS COUNTRY.  HE SOUGHT A STAY OF THIS REDEPLOYMENT ORDER PENDING
APPEAL OF THE DENIAL OF HABEAS CORPUS, BUT HIS APPLICATION WAS DENIED
BY THE COURT OF APPEALS, ON THE CONDITION THAT THE ARMY WOULD PRODUCE
HIM IF THE APPEAL SHOULD RESULT IN HIS FAVOR.  A SIMILAR STAY
APPLICATION WAS SUBSEQUENTLY DENIED BY MR. JUSTICE DOUGLAS AS NINTH
CIRCUIT JUSTICE, PARISI V. DAVIDSON, 396 U.S. 1233.  THE PETITIONER
THEN REPORTED TO FORT LEWIS.  HE REFUSED, HOWEVER, TO OBEY A MILITARY
ORDER TO BOARD A PLANE FOR VIETNAM.  AS A RESULT, HE WAS CHARGED WITH
VIOLATING ART. 90 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C.
890, AND, ON APRIL 8, 1970, A COURT-MARTIAL CONVICTED HIM OF THAT
MILITARY OFFENSE.  /1/ 

WHILE THE COURT-MARTIAL CHARGES WERE PENDING, THE ARMY BOARD FOR
CORRECTION OF MILITARY RECORDS NOTIFIED THE PETITIONER THAT IT HAD
REJECTED HIS APPLICATION FOR RELIEF FROM THE ARMY'S DENIAL OF HIS
CONSCIENTIOUS OBJECTOR APPLICATION.  THE DISTRICT COURT THEN ORDERED
THE ARMY TO SHOW CAUSE WHY THE PENDING WRIT OF HABEAS CORPUS SHOULD NOT
ISSUE.  ON THE GOVERNMENT'S MOTION, THE DISTRICT COURT, ON MARCH 31,
1970, ENTERED AN ORDER DEFERRING CONSIDERATION OF THE HABEAS CORPUS
PETITION UNTIL FINAL DETERMINATION OF THE CRIMINAL CHARGE THEN PENDING
IN THE MILITARY COURT SYSTEM.  THE COURT OF APPEALS FOR THE NINTH
CIRCUIT AFFIRMED THIS ORDER, CONCLUDING THAT "HABEAS PROCEEDINGS WERE
PROPERLY STAYED PENDING THE FINAL CONCLUSION OF PARISI'S MILITARY TRIAL
AND HIS APPEALS THEREFROM," 435 F.2D 299, 302.  WE GRANTED CERTIORARI,
402 U.S. 942. 

IN AFFIRMING THE STAY OF THE PETITIONER'S FEDERAL HABEAS CORPUS
PROCEEDING UNTIL COMPLETION OF THE MILITARY COURT'S ACTION, THE COURT
OF APPEALS RELIED ON THE RELATED DOCTRINES OF EXHAUSTION OF ALTERNATIVE
REMEDIES AND COMITY BETWEEN THE FEDERAL CIVILIAN COURTS AND THE
MILITARY SYSTEM OF JUSTICE.  WE HOLD TODAY THAT NEITHER OF THESE
DOCTRINES REQUIRED A STAY OF THE HABEAS CORPUS PROCEEDINGS IN THIS
CASE. 

WITH RESPECT TO AVAILABLE ADMINISTRATIVE REMEDIES, THERE CAN BE NO
DOUBT THAT THE PETITIONER HAS FULLY MET THE DEMANDS OF THE DOCTRINE OF
EXHAUSTION-- A DOCTRINE THAT MUST BE APPLIED IN EACH CASE WITH AN
"UNDERSTANDING OF ITS PURPOSES AND OF THE PARTICULAR ADMINISTRATIVE
SCHEME INVOLVED."  MCKART V. UNITED STATES, 395 U.S. 185, 193.  THE
BASIC PURPOSE OF THE EXHAUSTION DOCTRINE IS TO ALLOW AN ADMINISTRATIVE
AGENCY TO PERFORM FUNCTIONS WITHIN ITS SPECIAL COMPETENCE-- TO MAKE A
FACTUAL RECORD, TO APPLY ITS EXPERTISE, AND TO CORRECT ITS OWN ERRORS
SO AS TO MOOT JUDICIAL CONTROVERSIES.  ID., AT 194-195; MCGEE V. UNITED
STATES, 402 U.S. 479, 485; K. DAVIS, ADMINISTRATIVE LAW TREATISE SEC.
20.01 ET SEQ. (SUPP. 1970). 

IN THIS CASE THE PETITIONER FULLY COMPLIED WITH ARMY REGULATION 635
20, WHICH DICTATES THE PROCEDURES TO BE FOLLOWED BY A SERVICEMAN
SEEKING CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR ON THE BASIS OF
BELIEFS THAT DEVELOP AFTER INDUCTION.  /2/  MOREOVER, FOLLOWING A RULE
OF THE NINTH CIRCUIT THEN IN EFFECT, /3/  HE WENT FURTHER AND APPEALED
TO THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS.  /4/  THE
PROCEDURES AND CORRECTIVE OPPORTUNITIES OF THE MILITARY ADMINISTRATIVE
APPARATUS HAD THUS BEEN WHOLLY UTILIZED AT THE TIME THE DISTRICT COURT
ENTERED ITS ORDER DEFERRING CONSIDERATION OF THE PETITIONER'S HABEAS
CORPUS APPLICATION. 

IT IS CLEAR, THEREFORE, THAT, IF THE COURT-MARTIAL CHARGE HAD NOT
INTERVENED, THE DISTRICT COURT WOULD HAVE BEEN WRONG IN NOT PROCEEDING
TO AN EXPEDITIOUS CONSIDERATION OF THE MERITS OF THE PETITIONER'S
CLAIM.  FOR THE WRIT OF HABEAS CORPUS HAS LONG BEEN RECOGNIZED AS THE
APPROPRIATE REMEDY FOR SERVICEMEN WHO CLAIM TO BE UNLAWFULLY RETAINED
IN THE ARMED FORCES.  SEE, E.G., EAGLES V. SAMUELS, 329 U.S. 304, 312;
OESTERICH V. SELECTIVE SERVICE BOARD, 398 U.S. 233, 235; SCHLANGER V.
SEAMANS, 401 U.S. 487, 489.  AND, AS STATED AT THE OUTSET, THAT WRIT IS
AVAILABLE TO CONSIDER THE PLEA OF AN IN-SERVICE APPLICANT FOR DISCHARGE
AS A CONSCIENTIOUS OBJECTOR WHO CLAIMS THAT EXHAUSTION OF MILITARY
ADMINISTRATIVE PROCEDURES HAS LED ONLY TO A FACTUALLY BASELESS DENIAL
OF HIS APPLICATION.  IN RE KELLY, 401 F.2D 211 (CA5); HAMMOND V.
LENFEST, 398 F.2D 705 (CA2).  /5/ 

BUT SINCE A COURT-MARTIAL CHARGE WAS PENDING AGAINST THE PETITIONER
WHEN HE SOUGHT HABEAS CORPUS IN MARCH 1970, THE RESPONDENTS SUBMIT THAT
THE COURT OF APPEALS WAS CORRECT IN HOLDING THAT THE DISTRICT COURT
MUST AWAIT THE FINAL OUTCOME OF THOSE CHARGES IN THE MILITARY JUDICIAL
SYSTEM BEFORE IT MAY CONSIDER THE MERITS OF THE PETITIONER'S HABEAS
CORPUS CLAIM.  ALTHOUGH THIS ARGUMENT, TOO, IS FRAMED IN TERMS OF
"EXHAUSTION," IT MAY MORE ACCURATELY BE UNDERSTOOD AS BASED UPON THE
APPROPRIATE DEMANDS OF COMITY BETWEEN TWO SEPARATE JUDICIAL SYSTEMS. 
/6/  REQUIRING THE DISTRICT COURT TO DEFER TO THE MILITARY COURTS IN
THESE CIRCUMSTANCES SERVES THE INTERESTS OF COMITY, THE RESPONDENTS
ARGUE, BY AIDING THE MILITARY JUDICIARY IN ITS TASK OF MAINTAINING
ORDER AND DISCIPLINE IN THE ARMED SERVICES AND BY ELIMINATING "NEEDLESS
FRICTION" BETWEEN THE FEDERAL CIVILIAN AND MILITARY JUDICIAL SYSTEMS. 
THE RESPONDENTS NOTE THAT THE MILITARY CONSTITUTES A "SPECIALIZED
COMMUNITY GOVERNED BY A SEPARATE DISCIPLINE FROM THAT OF THE CIVILIAN,"
ORLOFF V. WILLOUGHBY, 345 U.S. 83, 94; GUSIK V. SCHILDER, 340 U.S. 128,
AND THAT IN RECOGNITION OF THE SPECIAL NATURE OF THE MILITARY
COMMUNITY, CONGRESS HAS CREATED AN AUTONOMOUS MILITARY JUDICIAL SYSTEM,
PURSUANT TO ART. I, SEC. 8, OF THE CONSTITUTION.  /7/  THEY FURTHER
POINT OUT THAT CIVILIAN COURTS, OUT OF RESPECT FOR THE SEPARATION-OF
POWERS DOCTRINE AND FOR THE NEEDS OF THE MILITARY, HAVE RIGHTLY BEEN
RELUCTANT TO INTERFERE WITH MILITARY JUDICIAL PROCEEDINGS.  /8/ 

BUT THE ISSUE IN THIS CASE DOES NOT CONCERN A FEDERAL DISTRICT
COURT'S INTERVENTION IN A CASE ARISING IN THE MILITARY COURT SYSTEM. 
CF. GUSIK V. SCHILDER, SUPRA; NOYD V. BOND, 395 U.S. 683.  THE
PETITIONER'S APPLICATION FOR AN ADMINISTRATIVE DISCHARGE-- UPON WHICH
THE HABEAS CORPUS PETITION WAS BASED-- ANTEDATED AND WAS INDEPENDENT OF
THE MILITARY CRIMINAL PROCEEDINGS. 

THE QUESTION HERE, THEREFORE, IS WHETHER A FEDERAL COURT SHOULD
POSTPONE ADJUDICATION OF AN INDEPENDENT CIVIL LAWSUIT CLEARLY WITHIN
ITS ORIGINAL JURISDICTION.  UNDER ACCEPTED PRINCIPLES OF COMITY, THE
COURT SHOULD STAY ITS HAND ONLY IF THE RELIEF THE PETITIONER SEEKS--
DISCHARGE AS A CONSCIENTIOUS OBJECTOR-- WOULD ALSO BE AVAILABLE TO HIM
WITH REASONABLE PROMPTNESS AND CERTAINTY THROUGH THE MACHINERY OF THE
MILITARY JUDICIAL SYSTEM IN ITS PROCESSING OF THE COURT-MARTIAL
CHARGE.  GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, 377
U.S. 218, 229; DAVIS V. MANN, 377 U.S. 678, 690-691; LUCAS V. FORTY
FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S. 713, 716-717.  FOR THE
REASONS THAT FOLLOW, WE ARE NOT PERSUADED THAT SUCH RELIEF WOULD BE
EVEN POTENTIALLY AVAILABLE, MUCH LESS THAT IT WOULD BE EITHER PROMPT OR
CERTAIN. 

COURTS-MARTIAL ARE NOT CONVENED TO REVIEW AND RECTIFY ADMINISTRATIVE
DENIALS OF CONSCIENTIOUS OBJECTOR CLAIMS OR TO RELEASE CONSCIENTIOUS
OBJECTORS FROM MILITARY SERVICE.  THEY ARE CONVENED TO ADJUDICATE
CHARGES OF CRIMINAL VIOLATIONS OF MILITARY LAW.  IT IS TRUE THAT THE
COURT OF MILITARY APPEALS HAS HELD THAT A SOLDIER CHARGED IN A COURT
MARTIAL WITH REFUSAL TO OBEY A LAWFUL ORDER MAY, IN CERTAIN LIMITED
CIRCUMSTANCES, DEFEND UPON THE GROUND THAT THE ORDER WAS NOT LAWFUL
BECAUSE HE HAD WRONGFULLY BEEN DENIED AN ADMINISTRATIVE DISCHARGE AS A
CONSCIENTIOUS OBJECTOR.  UNITED STATES V. NOYD, 18 U.S.C.M.A. 483, 40
C.M.R. 195.  /9/  THE SCOPE OF THE NOYD DOCTRINE IS NARROW, UNITED
STATES V. WILSON, 19 U.S.C.M.A. 100, 41 C.M.R. 100, AND ITS PRESENT
VITALITY NOT WHOLLY CLEAR, UNITED STATES V. STEWART, 20 U.S.C.M.A. 272,
43 C.M.R. 112.  A NOYD DEFENSE, THEREFORE, WOULD BE AVAILABLE, EVEN
ARGUABLY, ONLY IN AN EXTREMELY LIMITED CATEGORY OR COURT-MARTIAL
PROCEEDINGS.  BUT EVEN THOUGH WE PROCEED ON THE ASSUMPTION THAT NOYD
OFFERED THIS PETITIONER A POTENTIAL AFFIRMATIVE DEFENSE TO THE COURT
MARTIAL CHARGE BROUGHT AGAINST HIM, /10/  THE FACT REMAINS THAT THE
NOYD DOCTRINE OFFERS, AT BEST, NO MORE THAN A DEFENSE TO A CRIMINAL
CHARGE.  LIKE ANY OTHER LEGAL OR FACTUAL DEFENSE, IT WOULD IF
SUCCESSFULLY ASSERTED AT TRIAL OR ON APPEAL, ENTITLE THE DEFENDANT TO
ONLY AN ACQUITTAL /11/  -- NOT TO THE DISCHARGE FROM MILITARY SERVICE
THAT HE SEEKS IN THE HABEAS CORPUS PROCEEDING. 

THE RESPONDENTS ACKNOWLEDGE, AS THEY MUST, THE LIMITED FUNCTION OF A
NOYD DEFENSE IN THE TRIAL AND APPEAL OF THE COURT-MARTIAL PROCEEDING
ITSELF.  BUT THEY SUGGEST THAT, IF THE MILITARY COURTS SHOULD
EVENTUALLY ACQUIT THE PETITIONER ON THE GROUND OF HIS NOYD DEFENSE,
THEN THE PETITIONER MAY HAVE "AN AVAILABLE REMEDY BY WAY OF HABEAS
CORPUS IN THE COURT OF MILITARY APPEALS."  /12/  IN SUPPORT OF THIS
SUGGESTION, THE RESPONDENTS POINT TO THE ALL WRITS ACT, 28 U.S.C.
1651(A), AND TO CASES IN WHICH THE COURT OF MILITARY APPEALS HAS
EXERCISED POWER UNDER THAT ACT TO ORDER SERVICEMEN RELEASED FROM
MILITARY IMPRISONMENT PENDING APPEALS OF THEIR COURT-MARTIAL
CONVICTIONS.  SEE NOYD V. BOND, 395 U.S.,AT 695; LEVY V. RESOR, 17
U.S.C.M.A. 135, 37 C.M.R. 399; UNITED STATES V. JENNINGS, 19 U.S.C.M.A.
88, 41 C.M.R. 88; JOHNSON V. UNITED STATES, 19 U.S.C.M.A. 407, 42
C.M.R. 9. 

BUT THE ALL WRITS ACT ONLY EMPOWERS COURTS TO "ISSUE ALL WRITS
NECESSARY OR APPROPRIATE IN AID OF THEIR RESPECTIVE JURISDICTIONS . . .
," AND THE JURISDICTION OF THE COURT OF MILITARY APPEALS IS LIMITED BY
THE UNIFORM CODE OF MILITARY JUSTICE TO CONSIDERING APPEALS FROM COURT
MARTIAL CONVICTIONS.  10 U.S.C. 867; UNITED STATES V. SNYDER, 18
U.S.C.M.A. 480, 40 C.M.R. 192.  THAT COURT HAS BEEN GIVEN NO
"JURISDICTION" TO CONSIDER A SERVICEMAN'S CLAIM FOR DISCHARGE FROM THE
MILITARY AS A CONSCIENTIOUS OBJECTOR. 

WHETHER THIS CONCEPTUAL DIFFICULTY MIGHT SOMEHOW BE SURMOUNTED IS A
QUESTION FOR THE COURT OF MILITARY APPEALS ITSELF ULTIMATELY TO
DECIDE.  SEE UNITED STATES V. BEVILACQUA, 18 U.S.C.M.A. 10, 12, 39
C.M.R. 10, 12.  BUT THE SHORT ANSWER TO THE RESPONDENTS' SUGGESTION IN
THIS CASE IS THE RESPONDENTS' OWN CONCESSION THAT THAT COURT, HAS, TO
DATE, NEVER SO MUCH AS INTIMATED THAT IT HAS POWER TO ISSUE A WRIT OF
HABEAS CORPUS GRANTING SEPARATION FROM MILITARY SERVICE TO A
CONSCIENTIOUS OBJECTOR.  WE CONCLUDE HERE, THEREFORE, AS IN NOYD V.
BOND, SUPRA, AT 698 N. 11, THAT THE PETITIONER CANNOT "PROPERLY BE
REQUIRED TO EXHAUST A REMEDY WHICH MAY NOT EXIST."  /13/  ACCORDINGLY,
WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE TO
THE DISTRICT COURT WITH DIRECTIONS TO GIVE EXPEDITIOUS CONSIDERATION TO
THE MERITS OF THE PETITIONER'S HABEAS CORPUS APPLICATION.     IN
HOLDING AS WE DO TODAY THAT THE PENDENCY OF COURT-MARTIAL PROCEEDINGS
MUST NOT DELAY A FEDERAL DISTRICT COURT'S PROMPT DETERMINATION OF THE
CONSCIENTIOUS OBJECTOR CLAIM OF A SERVICEMAN WHO HAS EXHAUSTED ALL
ADMINISTRATIVE REMEDIES, WE NO MORE THAN RECOGNIZE THE HISTORIC RESPECT
IN THIS NATION FOR VALID CONSCIENTIOUS OBJECTION TO MILITARY SERVICE. 
SEE 50 U.S.C. APP. 456(J); UNITED STATES V. SEEGER, 380 U.S. 163.  /14/
AS THE DEFENSE DEPARTMENT ITSELF HAS RECOGNIZED, "THE CONGRESS . . .
HAS DEEMED IT MORE ESSENTIAL TO RESPECT A MAN'S RELIGIOUS BELIEFS THAN
TO FORCE HIM TO SERVE IN THE ARMED FORCES."  DEPARTMENT OF DEFENSE
DIRECTIVE NO. 1300.6 (MAY 10, 1968). 

BUT OUR DECISION TODAY SHOULD NOT BE UNDERSTOOD AS IMPINGING UPON
THE BASIC PRINCIPLES OF COMITY THAT MUST PREVAIL BETWEEN CIVILIAN
COURTS AND THE MILITARY JUDICIAL SYSTEM.  SEE, E.G., NOYD V. BOND, 395
U.S. 683; BURNS V. WILSON, 346 U.S. 137; ORLOFF V. WILLOUGHBY, 345 U.S.
83; GUSIK V. SCHILDER, 340 U.S. 128.  ACCORDINGLY, A FEDERAL DISTRICT
COURT, EVEN THOUGH UPHOLDING THE MERITS OF THE CONSCIENTIOUS OBJECTOR
CLAIM OF A SERVICEMAN AGAINST WHOM COURT-MARTIAL CHARGES ARE PENDING,
SHOULD GIVE CAREFUL CONSIDERATION TO THE APPROPRIATE DEMANDS OF COMITY
IN EFFECTUATING ITS HABEAS CORPUS DECREE.  /15/

              THE JUDGMENT IS REVERSED. 

/1/  AT THE TIME OF ORAL ARGUMENT OF THE PRESENT CASE, AN APPEAL
FROM THIS CONVICTION WAS PENDING IN A COURT OF MILITARY REVIEW. 

/2/  THE RIGHT OF A PERSON IN THE ARMED FORCES TO BE CLASSIFIED AS A
CONSCIENTIOUS OBJECTOR AFTER INDUCTION IS BOTTOMED ON DEPARTMENT OF
DEFENSE DIRECTIVE NO. 1300.6 (MAY 10, 1968), ISSUED BY THE SECRETARY OF
DEFENSE PURSUANT TO HIS AUTHORITY UNDER 10 U.S.C. 133.  THE PURPOSE OF
THE DIRECTIVE IS TO PROVIDE "UNIFORM PROCEDURES FOR THE UTILIZATION OF
CONSCIENTIOUS OBJECTORS IN THE ARMED FORCES AND CONSIDERATION OF
REQUESTS FOR DISCHARGE ON THE GROUNDS OF CONSCIENTIOUS OBJECTION." 
ARMY REGULATION 635-20 WAS ISSUED TO EFFECTUATE THE BROADER POLICIES
ANNOUNCED IN DOD DIRECTIVE NO. 1300.6. 

/3/  UNDER THE RULE OF CRAYCROFT V. FERRALL, 408 F.2D 587 (CA9
1969), THE PETITIONER WAS REQUIRED TO APPEAL THE DEPARTMENT OF THE
ARMY'S DECISION TO THE CIVILIAN ARMY BOARD FOR CORRECTION OF MILITARY
RECORDS IN ORDER TO EXHAUST MILITARY ADMINISTRATIVE REMEDIES AND HAVE
ACCESS TO FEDERAL COURT.  CURRENT GOVERNMENTAL POLICY REJECTS
CRAYCROFT.  COMPLIANCE WITH ARMY REGULATION, 635-20, NOT PERFECTION OF
AN ABCMR APPEAL, MARKS THE POINT WHEN MILITARY ADMINISTRATIVE
PROCEDURES HAVE BEEN EXHAUSTED.  DEPARTMENT OF JUSTICE MEMO.  NO. 652
(OCT. 23, 1969).  IN CRAYCROFT V. FERRAL, 397 U.S. 335, THIS COURT
VACATED THE JUDGMENT OF THE NINTH CIRCUIT THAT THE PETITIONER THERE HAD
TO APPEAL TO THE BOARD FOR THE CORRECTION OF NAVAL RECORDS BEFORE
PROCEEDING IN FEDERAL COURT.  BUT OUR DECISION WAS ANNOUNCED ON MARCH
30, 1970, MORE THAN FOUR MONTHS AFTER THE PRESENT PETITIONER HAD
APPEALED TO THE ABCMR. 

/4/  IN 1946, CONGRESS ENACTED LEGISLATION EMPOWERING THE SERVICE
SECRETARIES, ACTING THROUGH BOARDS OF CIVILIAN OFFICERS OF THEIR
RESPECTIVE DEPARTMENTS, TO ALTER MILITARY RECORDS WHEN NECESSARY TO
PREVENT INJUSTICE.  LEGISLATIVE REORGANIZATION ACT OF 1946, SEC. 207,
60 STAT. 837, AS AMENDED BY 70A STAT. 116, 10 U.S.C. 1552 (1952 ED.,
SUPP. IV).  PURSUANT TO THIS LEGISLATION, EACH SERVICE ESTABLISHED A
BOARD FOR THE CORRECTION OF MILITARY RECORDS WHOSE FUNCTION IS, ON
APPLICATION BY A SERVICEMAN, TO REVIEW THE MILITARY RECORD AND
INTERVENE WHERE NECESSARY TO CORRECT ERROR OR REMOVE INJUSTICE.  10
U.S.C. 1552(A). 

/5/  THE DEPARTMENT OF JUSTICE, IN CONSULTATION WITH THE DEPARTMENT
OF DEFENSE, HAS ACCEPTED THE HOLDINGS OF THE KELLY AND HAMMOND CASES. 
DEPARTMENT OF JUSTICE MEMO.  NO. 652 (OCT. 23, 1969).  SEE UNITED
STATES EX REL. BROOKS V. CLIFFORD, 409 F.2D 700, 701 (CA4).  COMPARE
NOYD V. MCNAMARA, 378 F.2D 538 (CA10), WITH POLSKY V. WETHERILL, 403
U.S. 916, VACATING JUDGMENT IN 438 F.2D 132 (CA10). 

/6/  THE RESPONDENTS DO NOT CONTEND THAT THE MILITARY COURTS HAVE A
SPECIAL COMPETENCE IN DETERMINING IF A CONSCIENTIOUS OBJECTOR
APPLICATION HAS BEEN DENIED WITHOUT BASIS IN FACT.  AS THEY ACKNOWLEDGE
IN THEIR BRIEF: 

"PLAINLY, JUDICIAL REVIEW OF THE FACTUAL BASIS FOR THE ARMY'S DENIAL
OF PETITIONER'S CONSCIENTIOUS OBJECTOR CLAIM DOES NOT REQUIRE AN
INTERPRETATION OF 'EXTREMELY TECHNICAL PROVISIONS OF THE UNIFORM CODE
(OF MILITARY JUSTICE) WHICH HAVE NO ANALOGS IN CIVILIAN
JURISPRUDENCE,'" QUOTING NOYD V. BOND, 395 U.S. 683, 696. 

THUS, IT IS NOT CONTENDED THAT EXHAUSTION OF MILITARY COURT REMEDIES
- LIKE EXHAUSTION OF MILITARY ADMINISTRATIVE REMEDIES-- IS REQUIRED BY
THE PRINCIPLES ANNOUNCED IN MCKART V. UNITED STATES, 395 U.S. 185, AND
MCGEE V. UNITED STATES, 402 U.S. 479. 

THE CONCEPT OF "EXHAUSTION" IN THE CONTEXT OF THE DEMANDS OF COMITY
BETWEEN DIFFERENT JUDICIAL SYSTEMS IS CLOSELY ANALOGOUS TO THE DOCTRINE
OF ABSTENTION.  FOR A DISCUSSION OF THE EXHAUSTION AND ABSTENTION
DOCTRINES IN THE FEDERAL-STATE CONTEXT, SEE GENERALLY C. WRIGHT,
HANDBOOK OF THE LAW OF FEDERAL COURTS 186-188, 196-208 (2D ED. 1970). 

/7/  BARKER, MILITARY LAW-- A SEPARATE SYSTEM OF JURISPRUDENCE, 36
U.CIN.L.REV.  223 (1967); WARREN, THE BILL OF RIGHTS AND THE MILITARY,
37 N.Y.U.L.REV.  181 (1962).  MILITARY COURTS ARE LEGISLATIVE COURTS;
THEIR JURISDICTION IS INDEPENDENT OF ART. III JUDICIAL POWER. 
FOLLOWING WORLD WAR II, CONGRESS, IN AN ATTEMPT TO REFORM AND MODERNIZE
THE SYSTEM OF MILITARY LAW, CREATED THE UNIFORM CODE OF MILITARY
JUSTICE, ACT OF MAY 5, 1950, C. 169, 64 STAT. 107.  IN 1968, THE CODE
WAS AMENDED BY THE MILITARY JUSTICE ACT, 10 U.S.C. 819, TO IMPROVE
COURT-MARTIAL AND REVIEW PROCEDURES. 

/8/  SEE HAMMOND V. LENFEST, 398 F.2D 705, 710 (CA2 1968): 

"JUDICIAL HESITANCY WHEN FACED WITH MATTERS TOUCHING ON MILITARY
AFFAIRS IS HARDLY SURPRISING IN VIEW OF THE DOCTRINE OF SEPARATION OF
POWERS AND THE RESPONSIBILITY FOR NATIONAL DEFENSE WHICH THE
CONSTITUTION . . . PLACES UPON THE CONGRESS AND THE PRESIDENT. 
MOREOVER, THE EVER-PRESENT AND URGENT NEED FOR DISCIPLINE IN THE ARMED
SERVICES WOULD ALONE EXPLAIN THE RELATIVE FREEDOM OF THE MILITARY FROM
JUDICIAL SUPERVISION." 

/9/  ARMY REGULATION 635-20 PROVIDES THAT 

"INDIVIDUALS WHO HAVE SUBMITTED FORMAL APPLICATIONS (FOR
CONSCIENTIOUS OBJECTOR STATUS) . . . WILL BE RETAINED IN THEIR UNITS
AND ASSIGNED DUTIES PROVIDING THE MINIMUM PRACTICABLE CONFLICT WITH
THEIR ASSERTED BELIEFS PENDING A FINAL DECISION ON THEIR
APPLICATIONS."  NOYD INVOLVED AN AIR FORCE OFFICER WHO, AFTER BEING
DENIED CONSCIENTIOUS OBJECTOR STATUS, REFUSED TO OBEY AN ORDER TO
INSTRUCT STUDENT PILOTS TO FLY A FIGHTER PLANE USED IN VIETNAM.  NOYD'S
COMMANDING OFFICER HAD REFRAINED FROM ORDERING THE ACCUSED TO GIVE SUCH
INSTRUCTION UNTIL THE APPLICATION HAD BEEN PROCESSED AND DENIED.  AS
THE COURT OF MILITARY APPEALS SAID: 

"THE VALIDITY OF THE ORDER (TO INSTRUCT STUDENTS), THEREFORE,
DEPENDED UPON THE VALIDITY OF THE SECRETARY'S DECISION (REJECTING THE
CONSCIENTIOUS OBJECTOR APPLICATION) . . . IF THE SECRETARY'S DECISION
WAS ILLEGAL, THE ORDER IT GENERATED WAS ALSO ILLEGAL."  UNITED STATES
V. NOYD, 18 U.S.C.M.A. 483, 492, 40 C.M.R. 195, 204. 

/10/  THE PETITIONER DID, IN FACT, INTERPOSE A NOYD DEFENSE AT HIS
COURT-MARTIAL TRIAL, AND IT WAS REJECTED UPON THE MILITARY JUDGE'S
FINDING THAT "THE RULING OF THE SECRETARY OF THE ARMY WAS NOT
ARBITRARY, CAPRICIOUS, UNREASONABLE, OR AN ABUSIVE (SIC) DISCRETION." 

/11/  WE HAVE BEEN REFERRED TO NO REPORTED MILITARY COURT DECISION
(INCLUDING NOYD ITSELF) THAT HAS YET ACQUITTED A DEFENDANT UPON THE
BASIS OF A NOYD DEFENSE. 

/12/  IF THE MILITARY COURTS SHOULD ULTIMATELY ACQUIT THE PETITIONER
ON GROUNDS OTHER THAN WRONGFUL DENIAL OF HIS CONSCIENTIOUS OBJECTOR
APPLICATION, THE RESPONDENTS ACKNOWLEDGE THAT HE COULD NOT SEEK HABEAS
CORPUS IN THE MILITARY JUDICIAL SYSTEM.  IN THIS EVENT, THEREFORE, THE
PETITIONER COULD CLEARLY NOT OBTAIN THE RELIEF THAT HE SEEKS IN THE
MILITARY COURT SYSTEM. 

/13/  THIS RESULT IS NOT INCONSISTENT WITH THE NEED TO MAINTAIN
ORDER AND DISCIPLINE IN THE MILITARY AND TO AVOID NEEDLESS FRICTION
BETWEEN THE FEDERAL CIVILIAN AND MILITARY JUDICIAL SYSTEMS.  IF THE
NOYD DEFENSE IS AVAILABLE AND IF THE ORDER THAT THE PETITIONER
DISOBEYED WAS UNLAWFUL IF HIS CONSCIENTIOUS OBJECTOR CLAIM IS VALID,
THEN ALLOWING HIM TO PROCEED IN FEDERAL DISTRICT COURT AS SOON AS
MILITARY ADMINISTRATIVE REMEDIES HAVE BEEN EXHAUSTED DOES NOT AFFECT
MILITARY DISCIPLINE.  FOR IF THE CONSCIENTIOUS OBJECTOR CLAIM IS VALID,
THE ARMY CAN HAVE NO INTEREST IN PUNISHING HIM FOR DISOBEDIENCE OF AN
UNLAWFUL ORDER.  IF THE CONSCIENTIOUS OBJECTOR CLAIM IS INVALID, THEN
THE ARMY CAN, OF COURSE, PROSECUTE THE PETITIONER FOR HIS ALLEGED
DISOBEDIENCE OF A LAWFUL ORDER. 

CORRELATIVELY, IF THE CHARGES IN MILITARY COURT WOULD BE UNAFFECTED
BY THE VALIDITY OF THE CONSCIENTIOUS OBJECTOR CLAIM, BOTH THE
PETITIONER'S HABEAS CORPUS ACTION AND THE CRIMINAL TRIAL IN MILITARY
COURT COULD PROCEED CONCURRENTLY.  SEE N. 15, INFRA.  NEEDLESS TO SAY,
THE QUESTION WHETHER WRONGFUL DENIAL OF CONSCIENTIOUS OBJECTOR STATUS
MAY BE RAISED AS A DEFENSE AGAINST VARIOUS TYPES OF MILITARY CHARGES
MUST REMAIN WITH THE MILITARY COURTS, AS THEY EXERCISE THEIR SPECIAL
FUNCTION OF ADMINISTERING MILITARY LAW. 

/14/  SEE GENERALLY REPORT OF THE NATIONAL ADVISORY COMMISSION ON
SELECTIVE SERVICE, IN PURSUIT OF EQUITY:  WHO SERVES WHEN NOT ALL
SERVE?  48-51 (1967); SELECTIVE SERVICE SYSTEM MONOGRAPH NO. 11,
CONSCIENTIOUS OBJECTION (1950); RUSSELL, DEVELOPMENT OF CONSCIENTIOUS
OBJECTOR RECOGNITION IN THE UNITED STATES, 20 GEO.WASH.L.REV.  409
(1952); COMMENT, GOD, THE ARMY, AND JUDICIAL REVIEW:  THE IN-SERVICE
CONSCIENTIOUS OBJECTOR, 56 CALIF.L.REV.  379 (1968). 

/15/  IN THE PRESENT CASE THE RESPONDENTS ACKNOWLEDGE THAT IF THE
ADMINSTRATIVE DENIAL OF THE PETITIONER'S CONSCIENTIOUS OBJECTOR CLAIM
HAD NO BASIS IN FACT, THEN THE COURT-MARTIAL CHARGE AGAINST HIM IS
INVALID.  IT FOLLOWS THAT, IF HE SHOULD PREVAIL IN THE HABEAS CORPUS
PROCEEDING, HE IS ENTITLED TO HIS IMMEDIATE RELEASE FROM THE MILITARY. 
AT THE OTHER END OF THE SPECTRUM IS THE HYPOTHETICAL CASE OF A COURT
MARTIAL CHARGE THAT HAS NO REAL CONNECTION WITH THE CONSCIENTIOUS
OBJECTOR CLAIM-- E.G., A CHARGE OF STEALING A FELLOW SOLDIER'S WATCH. 
IN SUCH A CASE, A DISTRICT COURT, EVEN THOUGH UPHOLDING THE
SERVICEMAN'S CONSCIENTIOUS OBJECTOR CLAIM, MIGHT CONDITION ITS ORDER OF
DISCHARGE UPON THE COMPLETION OF THE COURT-MARTIAL PROCEEDINGS AND
SERVICE OF ANY LAWFUL SENTENCE IMPOSED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE RESULT. 

I AGREE WITH THE COURT'S VIEW THAT HABEAS CORPUS IS AN OVERRIDING
REMEDY TO TEST THE JURISDICTION OF THE MILITARY TO TRY OR TO DETAIN A
PERSON.  THE CLASSIC CASE IS EX PARTE MILLIGAN, 4 WALL.  2, WHERE
HABEAS CORPUS WAS ISSUED ON BEHALF OF A CIVILIAN TRIED AND CONVICTED IN
INDIANA BY A MILITARY TRIBUNAL.  DURING THE CIVIL WAR ALL CIVIL COURTS
IN THAT STATE WERE OPEN AND FEDERAL AUTHORITY HAD ALWAYS BEEN
UNOPPOSED.  WHILE THE PRESIDENT AND THE CONGRESS HAD "SUSPENDED" THE
WRIT, ID., AT 115, THE SUSPENSION, SAID THE COURT, WENT NO FURTHER THAN
TO RELIEVE THE MILITARY FROM PRODUCING IN THE HABEAS CORPUS COURT THE
PERSON HELD OR DETAINED.  "THE CONSTITUTION GOES NO FURTHER.  IT DOES
NOT SAY AFTER A WRIT OF HABEAS CORPUS IS DENIED A CITIZEN, THAT HE
SHALL BE TRIED OTHERWISE THAN BY THE COURSE OF THE COMMON LAW; IF IT
HAD INTENDED THIS RESULT, IT WAS EASY BY THE USE OF DIRECT WORDS TO
HAVE ACCOMPLISHED IT."  ID., AT 126. 

MR. CHIEF JUSTICE TANEY IN EX PARTE MERRYMAN, 17 F.CAS.  144 (NO.
9,487) (CC MD. 1861), HELD THAT THE PRESIDENT ALONE HAD NO AUTHORITY TO
SUSPEND THE WRIT, A POSITION THAT LINCOLN DID NOT HONOR.  TO DATE, THE
QUESTION HAS NEVER BEEN RESOLVED, AND ITS DECISION IS NOT RELEVANT TO
THE PRESENT CASE.  I MENTION THE MATTER BECAUSE OF THE CONSTITUTIONAL
UNDERPINNING OF THE WRIT OF HABEAS CORPUS.  ARTICLE I OF THE
CONSTITUTION, IN DESCRIBING THE POWERS OF THE LEGISLATIVE BRANCH,
STATES IN SEC. 9 THAT:  "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS
SHALL NOT BE SUSPENDED, UNLESS WHEN IN CASES OF REBELLION OR INVASION
THE PUBLIC SAFETY MAY REQUIRE IT." 

THE COURT HAS CONSISTENTLY REAFFIRMED THE PREFERRED PLACE OF THE
GREAT WRIT IN OUR CONSTITUTIONAL SYSTEM.  FAY V. NOIA, 372 U.S. 391,
400; SMITH V. BENNETT, 365 U.S. 708, 713. 

ARTICLE III, SEC. 1, GIVES THE CONGRESS THE POWER TO "ORDAIN AND
ESTABLISH" INFERIOR FEDERAL COURTS; AND SEC. 2 SUBJECTS THE "APPELLATE
JURISDICTION" OF THIS COURT TO "SUCH EXCEPTIONS, AND . . . SUCH
REGULATIONS AS THE CONGRESS SHALL MAKE."  ONCE CONGRESS WITHDREW FROM
THIS COURT ITS APPELLATE JURISDICTION IN HABEAS CORPUS CASES.  SEE EX
PARTE MCCARDLE, 6 WALL.  318, 7 WALL.  506.  AN ACT OF CONGRESS PASSED
BY THE VERY FIRST CONGRESS PROVIDED FOR THE ISSUANCE OF THE WRIT.  BUT
AS CHIEF JUSTICE MARSHALL SAID IN EX PARTE BOLLMAN, 4 CRANCH 75, 95,
"FOR IF THE MEANS BE NOT IN EXISTENCE, THE PRIVILEGE ITSELF WOULD BE
LOST, ALTHOUGH NO LAW FOR ITS SUSPENSION SHOULD BE ENACTED."  IT IS
ALSO TRUE THAT "THE MEANING OF THE TERM HABEAS CORPUS" IS ASCERTAINED
BY RESORT "TO THE COMMON LAW;" YET "THE POWER TO AWARD THE WRIT BY ANY
OF THE COURTS OF THE UNITED STATES, MUST BE GIVEN BY WRITTEN LAW." 
ID., AT 93-94.     WHAT COURTS MAY DO IS DEPENDENT ON STATUTES, /1/
SAVE AS THEIR JURISDICTION IS DEFINED BY THE CONSTITUTION.  WHAT
FEDERAL JUDGES MAY DO, HOWEVER, IS A DISTINCT QUESTION.  AUTHORITY TO
PROTECT CONSTITUTIONAL RIGHTS OF INDIVIDUALS IS INHERENT IN THE
AUTHORITY OF A FEDERAL JUDGE, CONFORMABLY WITH ACTS OF CONGRESS.  THE
MANDATE IN ART. I, SEC. 9, THAT "THE PRIVILEGE OF THE WRIT . . . SHALL
NOT BE SUSPENDED" MUST MEAN THAT ITS ISSUANCE, IN A PROPER CASE OR
CONTROVERSY, IS AN IMPLIED POWER OF ANY FEDERAL JUDGE.     WE HAVE
RULED THAT EVEN WITHOUT CONGRESSIONAL STATUTES ENFORCING CONSTITUTIONAL
RIGHTS, THE FEDERAL JUDGES HAVE AUTHORITY TO ENFORCE THE FEDERAL
GUARANTEE.  FAY V. NEW YORK, 332 U.S. 261, 283-284, 285, 293;
KATZENBACH V. MORGAN, 384 U.S. 641, 647.  THOSE CASES INVOLVED PROTESTS
BY INDIVIDUALS AGAINST STATE ACTION.  CERTAINLY THE MILITARY DOES NOT
STAND IN A PREFERRED POSITION. 

THE MATTER IS GERMANE TO THE PRESENT PROBLEM.  FOR HERE THE MILITARY
IS CHARGED WITH EXCEEDING ITS PROPER BOUNDS IN SEEKING TO PUNISH A
PERSON FOR CLAIMING HIS STATUTORY AND CONSTITUTIONAL EXEMPTION FROM
MILITARY SERVICE.  THE CONFLICT BETWEEN MILITARY PREROGATIVES AND
CIVILIAN JUDICIAL AUTHORITY IS AS APPARENT IN THIS CASE AS IT WAS IN EX
PARTE MILLIGAN.  A PERSON WHO APPROPRIATELY SHOWS THAT HE IS EXEMPT
FROM MILITARY DUTY MAY NOT BE PUNISHED FOR FAILURE TO SUBMIT.  THE
QUESTION IS NOT ONE OF COMITY BETWEEN MILITARY AND CIVILIAN TRIBUNALS. 
ONE OVERRIDING FUNCTION OF HABEAS CORPUS IS TO ENABLE THE CIVILIAN
AUTHORITY TO KEEP THE MILITARY WITHIN BOUNDS.  THE COURT PROPERLY DOES
JUST THAT IN THE OPINION ANNOUNCED TODAY. 

WHILE THE COURT OF MILITARY APPEALS HAS THE AUTHORITY TO ISSUE THE
WRIT OF HABEAS CORPUS, NOYD V. BOND, 395 U.S. 683, 695 N. 7; LEVY V.
RESOR, 17 U.S.C.M.A. 135, 37 C.M.R. 399, WE HAVE NEVER HELD THAT A
CHALLENGE TO THE MILITARY'S JURISDICTION TO TRY A PERSON MUST FIRST BE
SOUGHT THERE RATHER THAN IN A FEDERAL DISTRICT COURT.  /2/  OF COURSE,
WHERE COMITY PREVAILS, AS IT DOES BETWEEN STATE AND FEDERAL COURTS,
FEDERAL HABEAS CORPUS WILL BE DENIED WHERE STATE HABEAS CORPUS OR A
LIKE REMEDY IS AVAILABLE BUT HAS NOT BEEN UTILIZED.  EX PARTE HAWK, 321
U.S. 114.  A PETITIONER MUST, INDEED, PURSUE HIS ALLEGED STATE REMEDIES
UNTIL IT IS SHOWN THAT THEY DO NOT EXIST OR HAVE BEEN FUTILELY
INVOKED. 

THE PRINCIPLE OF COMITY WAS INVOKED BY CONGRESS WHEN IT WROTE IN 28
U.S.C. 2254 THAT FEDERAL HABEAS CORPUS SHALL NOT BE GRANTED A PERSON IN
STATE CUSTODY "UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE
REMEDIES AVAILABLE IN THE COURTS OF THE STATE."  THAT PRINCIPLE OF
COMITY IS IMPORTANT IN THE OPERATION OF OUR FEDERAL SYSTEM, FOR BOTH
THE STATES AND THE FEDERAL GOVERNMENT ARE ADMINISTERING PROGRAMS
RELATING TO CRIMINAL JUSTICE.  /3/  SEE FAY V. NOIA, 372 U.S. 391.  BUT
"THE PRINCIPLES OF FEDERALISM WHICH ENLIGHTEN THE LAW OF FEDERAL HABEAS
CORPUS FOR STATE PRISONERS ARE NOT RELEVANT," NOYD V. BOND, 395 U.S.,AT
694, TO ANALOGOUS QUESTIONS INVOLVING MILITARY PRISONERS.  MILITARY
PROCEEDINGS ARE DIFFERENT.  AS WE SAID IN O'CALLAHAN V. PARKER, 395
U.S. 258, 265, "A COURT-MARTIAL IS NOT YET AN INDEPENDENT INSTRUMENT OF
JUSTICE BUT REMAINS TO A SIGNIFICANT DEGREE A SPECIALIZED PART OF THE
OVERALL MECHANISM BY WHICH MILITARY DISCIPLINE IS PRESERVED." 

COMITY IS "A DOCTRINE WHICH TEACHES THAT ONE COURT SHOULD DEFER
ACTION ON CAUSES PROPERLY WITHIN ITS JURISDICTION UNTIL THE COURTS OF
ANOTHER SOVEREIGNTY WITH CONCURRENT POWERS, AND ALREADY COGNIZANT OF
THE LITIGATION, HAVE HAD AN OPPORTUNITY TO PASS UPON THE MATTER."  DARR
V. BURFORD, 339 U.S. 200, 204.  BUT THE PENTAGON IS NOT YET SOVEREIGN. 
THE MILITARY IS SIMPLY ANOTHER ADMINISTRATIVE AGENCY, INSOFAR AS
JUDICIAL REVIEW IS CONCERNED.  CF. COMMENT, 43 S.CAL.L.REV.  356, 377
378.  WHILE WE HAVE STATED IN THE PAST THAT SPECIAL DEFERENCE IS DUE
THE MILITARY DECISIONMAKING PROCESS, GUSIK V. SCHILDER, 340 U.S. 128,
THIS IS SO NEITHER BECAUSE OF "COMITY," NOR THE SANCTITY OF THE
EXECUTIVE BRANCH, BUT BECAUSE OF A CONCERN FOR THE EFFECT OF JUDICIAL
INTERVENTION ON MORALE AND MILITARY DISCIPLINE, AND BECAUSE OF THE
CIVILIAN JUDICIARY'S GENERAL UNFAMILIARITY WITH "EXTREMELY TECHNICAL
PROVISIONS OF THE UNIFORM CODE (OF MILITARY JUSTICE) WHICH HAVE NO
ANALOGS IN CIVILIAN JURISPRUDENCE," NOYD V. BOND, SUPRA, AT 696. 

THE "SPECIAL EXPERTISE" ARGUMENT IS OFTEN EMPLOYED BY THE DEFENDERS
OF THE MILITARY COURT SYSTEM.  THUS, THE ARGUMENT WAS ADVANCED-- AND
REJECTED-- THAT THE CIVILIAN JUDGES WHO WERE TO STAFF THE COURT OF
MILITARY APPEALS COULD NOT DO SERVICE, ABSENT MILITARY EXPERIENCE, TO
THE COMPLICATED, TECHNICAL NICETIES OF MILITARY LAW.  /4/  SEE, E.G.,
96 CONG.REC.  1305-1306.  BUT CIVILIAN COURTS MUST DEAL WITH EQUALLY
ARCANE MATTERS IN SUCH AREAS AS PATENT, TAX, ANTITRUST, AND BANKRUPTCY
LAW, ON A DAILY BASIS. 

OUR SYSTEM OF SPECIALIZED MILITARY COURTS, THOUGH "NECESSARY TO AN
EFFECTIVE NATIONAL DEFENSE ESTABLISHMENT," O'CALLAHAN V. PARKER, 395
U.S.,AT 265, HAS ROOTS IN A SYSTEM ALMOST ALIEN TO THE SYSTEM OF
JUSTICE PROVIDED BY THE BILL OF RIGHTS, BY ART. III, AND BY THE SPECIAL
PROVISION FOR HABEAS CORPUS CONTAINED IN ART. I, SEC. 9.  MILITARY LAW
IS PRIMARILY AN INSTRUMENT OF DISCIPLINE AND A "MILITARY TRIAL IS
MARKED BY THE AGE-OLD MANIFEST DESTINY OF RETRIBUTIVE JUSTICE."  ID.,
AT 266.  /5/  FOR THE SAKE OF DISCIPLINE AND ORDERLINESS A PERSON IN
THE MILITARY SERVICE MUST NORMALLY FOLLOW THE MILITARY ADMINISTRATIVE
PROCEDURE AND EXHAUST ITS REQUIREMENTS.  GUSIK V. SCHILDER, 340 U.S.
128.  BUT ONCE THOSE ADMINISTRATIVE REMEDIES ARE EXHAUSTED, HE MUST
THEN BE PERMITTED TO RESORT TO CIVILIAN COURTS /6/  TO MAKE SURE THAT
THE MILITARY REGIME ACTS WITHIN THE SCOPE OF STATUTES GOVERNING THE
PROBLEMS AND ANY CONSTITUTIONAL REQUIREMENTS.  TO REPEAT, BOTH STATUTES
/7/  AND THE CONSTITUTION /8/  ARE IMPLICATED IN THE CLAIMS OF
CONSCIENTIOUS OBJECTORS. 

PETITIONER CLAIMS TO BE A CONSCIENTIOUS OBJECTOR AND THEREFORE NOT
SUBJECT TO MILITARY ORDERS.  HE WAS CHARGED WITH REFUSING TO OBEY A
MILITARY ORDER SENDING HIM TO VIETNAM AND HAS BEEN CONVICTED OF THAT
OFFENSE.  WHILE THE COURT-MARTIAL CHARGES AGAINST HIM WERE PENDING, HE
EXHAUSTED ALL ADMINISTRATIVE REMEDIES FOR RELIEF FROM THE ARMY'S DENIAL
OF HIS CONSCIENTIOUS OBJECTOR APPLICATION.  IN THEORY HE COULD PURSUE
HIS REMEDIES WITHIN THE MILITARY SYSTEM BY APPEALING THE CONVICTION OR
SEEKING HABEAS CORPUS IN THE COURT OF MILITARY APPEALS.  BUT HE NEEDS
GO NO FURTHER THAN TO EXHAUST HIS ADMINISTRATIVE REMEDIES FOR
OVERRULING THE DECISION THAT HE WAS NOT A CONSCIENTIOUS OBJECTOR.  IF
THERE IS A STATUTORY OR CONSTITUTIONAL REASON WHY HE SHOULD NOT OBEY
THE ORDER OF THE ARMY, THAT AGENCY IS OVERREACHING WHEN IT PUNISHES HIM
FOR HIS REFUSAL. 

THE ARMY HAS A SEPARATE DISCIPLINE OF ITS OWN AND OBVIOUSLY IT FILLS
A SPECIAL NEED.  BUT MATTERS OF THE MIND AND SPIRIT, ROOTED IN THE
FIRST AMENDMENT, ARE NOT IN THE KEEPING OF THE MILITARY.  CIVIL LIBERTY
AND THE MILITARY REGIME HAVE AN "ANTAGONISM: THAT IS "IRRECONCILABLE." 
EX PARTE MILLIGAN, 4 WALL.,AT 124, 125.  WHILE THE MILITARY STEPS OVER
THOSE BOUNDS, IT LEAVES THE AREA OF ITS EXPERTISE AND FORSAKES ITS
DOMAIN.  /9/  THE MATTER THEN BECOMES ONE FOR CIVILIAN COURTS TO
RESOLVE, CONSISTENT WITH THE STATUTES AND WITH THE CONSTITUTION. 

/1/  IT HAS BEEN ASSUMED THAT THIS COURT HAS NO JURISDICTION TO
ISSUE AN ORIGINAL WRIT OF HABEAS CORPUS EXCEPT WHEN ISSUANCE OF THE
WRIT HAS BEEN FIRST DENIED BY A LOWER COURT.  R. STERN & E. GRESSMAN,
SUPREME COURT PRACTICE 419-420 (4TH ED. 1969).  BUT THE COURT HAS NOT
SETTLED THE QUESTION.  SEE HIROTA V. MACARTHUR, 335 U.S. 876, 338 U.S.
197. 

SOME MEMBERS OF THE COURT HAVE FELT THAT, ABSENT STATUTORY
AUTHORIZATION, THE COURT MAY NOT EVEN TRANSFER A PETITION FOR AN
ORIGINAL WRIT OF HABEAS CORPUS TO A LOWER COURT.  BUT THAT VIEW HAS NOT
PREVAILED.  SEE CHAAPEL V. COCHRAN, 369 U.S. 869. 

/2/  SEE BILLINGS V. TRUESDELL, 321 U.S. 542.  THIS CASE INVOLVED A
SELECTIVE SERVICE REGISTRANT WHOSE CONSCIENTIOUS OBJECTOR CLAIM WAS
REJECTED BY THE SERVICE.  BILLINGS SUBSEQUENTLY REPORTED AS ORDERED FOR
INDUCTION, BUT REFUSED TO TAKE THE REQUIRED OATH.  THE OATH WAS THEN
READ TO HIM, AND HE WAS TOLD THAT HIS REFUSAL TO TAKE IT MADE NO
DIFFERENCE; HE WAS "IN THE ARMY NOW."  ID., AT 545.  WHEN BILLINGS
REFUSED AN ORDER TO SUBMIT TO FINGERPRINTING, MILITARY CHARGES WERE
BROUGHT AGAINST HIM. 

WHILE THE CHARGES WERE PENDING, BILLINGS SOUGHT FEDERAL HABEAS
CORPUS RELIEF, CHALLENGING THE MILITARY'S JURISDICTION TO TRY HIM, ON
THE THEORY THAT HE HAD NOT BEEN LAWFULLY INDUCTED.  THE DISTRICT COURT
DISCHARGED THE WRIT, AND THE COURT OF APPEALS AFFIRMED, BUT THIS COURT
HELD THAT BILLINGS' INDUCTION HAD INDEED VIOLATED EXISTING STATUTORY
LAW, AND ORDERED THAT THE WRIT ISSUE.  IMPLICIT IN THIS HOLDING IS AN
AFFIRMATION OF THE PROPOSITION THAT EXHAUSTION OF MILITARY REMEDIES,
INCLUDING PENDING COURT-MARTIAL, IS NOT REQUIRED OF ONE CHALLENGING THE
MILITARY'S JURISDICTION TO TRY HIM IN THE FIRST INSTANCE. 

WHILE BILLINGS WAS DECIDED BEFORE THE ENACTMENT OF THE UNIFORM CODE
OF MILITARY JUSTICE, CASED DECIDED UNDER THE CODE HAVE REACHED SIMILAR
RESULTS.  SEE, E.G., MCELROY V. GUAGLIARDO, 361 U.S. 281; REID V.
COVERT, 354 U.S. 1; TOTH V. QUARLES, 350 U.S. 11. 

NOYD V. BOND, 395 U.S. 683, IS NOT TO THE CONTRARY.  THERE, THE
COURT WAS FACED WITH A SERVICEMAN WHO HAD REFUSED TO OBEY AN ORDER
BECAUSE OF HIS ASSERTED CONSCIENTIOUS SCRUPLES AGAINST THE WAR IN
VIETNAM.  HIS COURT-MARTIAL CONVICTION WAS PENDING IN THE COURT OF
MILITARY APPEALS.  THE ISSUE DECIDED AGAINST HIM ON HIS FEDERAL HABEAS
APPLICATION, HOWEVER, WAS NOT THE JURISDICTION OF THE MILITARY TO TRY
HIM IN THE FIRST INSTANCE, BUT MERELY HIS ENTITLEMENT TO BAIL PENDING
DISPOSITION OF HIS MILITARY APPEALS.  THE COURT HELD THAT HIS BAIL
MOTION SHOULD FIRST BE PRESENTED TO THE COURT OF MILITARY APPEALS; BUT
WE WERE EXPLICIT IN DISTINGUISHING GUAGLIARDO, CONVERT, AND TOTH: 

"THE CITED CASED HELD THAT THE CONSTITUTION BARRED THE ASSERTION OF
COURT-MARTIAL JURISDICTION OVER VARIOUS CLASSES OF CIVILIANS CONNECTED
WITH THE MILITARY, AND IT IS TRUE THAT THIS COURT THERE VINDICATED
COMPLAINANTS' CLAIMS WITHOUT REQUIRING EXHAUSTION OF MILITARY
REMEDIES.  WE DID SO, HOWEVER, BECAUSE WE DID NOT BELIEVE THAT THE
EXPERTISE OF MILITARY COURTS EXTENDED TO THE CONSIDERATION OF
CONSTITUTIONAL CLAIMS OF THE TYPE PRESENTED.  MOREOVER, IT APPEARED
ESPECIALLY UNFAIR TO REQUIRE EXHAUSTION OF MILITARY REMEDIES WHEN THE
COMPLAINANTS RAISED SUBSTANTIAL ARGUMENTS DENYING THE RIGHT OF THE
MILITARY TO TRY THEM AT ALL.  NEITHER OF THESE FACTORS IS PRESENT IN
THE CASE BEFORE US."  395 U.S.,AT 696 N. 8. 

THUS, NOYD SUPPORTS THE PROPOSITION THAT "EXHAUSTION IS NOT REQUIRED
WHEN A PRISONER CHALLENGES THE PERSONAL JURISDICTION OF THE MILITARY." 
DEVELOPMENTS IN THE LAW-- FEDERAL HABEAS CORPUS, 83 HARV.L.REV.  1038,
1233 N. 169.  AND PARISI'S CHALLENGE IS PRECISELY OF THAT NATURE. 

/3/  AS IRVING BRANT SAYS IN THE BILL OF RIGHTS 483 (1965), "THE
ESSENTIAL DIFFERENCES BETWEEN STATE AND FEDERAL CRIMINAL LAW, THOUGH
IMMENSE IN SUBJECT MATTER, HAVE LITTLE BEARING ON 'FUNDAMENTAL
FAIRNESS' OR 'BASIC LIBERTIES.'  THESE ARE INVOLVED WHEN OVERLAPPING
JURISDICTIONS PRODUCE DOUBLE JEOPARDY, BUT THE FUNDAMENTALS OF FAIRNESS
ARE NOT DIFFERENT IN STATE AND FEDERAL COURTS." 

/4/  MANY OF TODAY'S CRITICS OF THE COURT OF MILITARY APPEALS FEEL
THAT AN INSENSITIVITY TO MILITARY NEEDS IS THE LEAST OF THE COURT'S
PROBLEMS.  RECENT ATTACKS HAVE RESTED ON THE PREMISE THAT, IN FACT, THE
COURT HAS BECOME TOO CLOSELY IDENTIFIED WITH THE VIEWPOINT OF THE
MILITARY ESTABLISHMENT IT IS SUPPOSED TO OVERSEE.  SEE, E.G., R.
SHERRILL, MILITARY JUSTICE IS TO JUSTICE AS MILITARY MUSIC IS TO MUSIC
214-215 (1970).  CRITICS MUST CONCEDE, HOWEVER, THAT THE COURT HAS AT
LEAST BEEN PARTIALLY SUCCESSFUL IN INFUSING CIVILIAN NOTIONS OF DUE
PROCESS INTO THE MILITARY JUSTICE SYSTEM.  SEE, E.G., E. SHERMAN,
JUSTICE IN THE MILITARY, IN CONSCIENCE AND COMMAND 21, 28 (J. FINN ED.
1971).  THUS, THE COURT HAS EXTENDED TO SERVICEMEN THE RIGHT TO A
SPEEDY TRIAL, UNITED STATES V. SCHALCK, 14 U.S.C.M.A. 371, 34 C.M.R.
151; THE RIGHT TO CONFRONT WITNESSES, UNITED STATES V. JACOBY, 11
U.S.C.M.A. 428, 29 C.M.R. 244; THE RIGHT TO PROTECTION AGAINST
UNREASONABLE SEARCHES AND SEIZURES, UNITED STATES V. VIERRA, 14
U.S.C.M.A. 48, 33 C.M.R. 260; THE PRIVILEGE AGAINST SELF-INCRIMINATION,
UNITED STATES V. KEMP, 13 U.S.C.M.A. 89, 32 C.M.R. 89; THE RIGHT TO A
PUBLIC TRIAL, UNITED STATES V. BROWN, 7 U.S.C.M.A. 251, 22 C.M.R. 41;
THE RIGHT TO COMPULSORY SERVICE OF PROCESS, UNITED STATES V. SWEENEY,
14 U.S.C.M.A. 599, 34 C.M.R. 379; AND THE RIGHT TO MIRANDA-TYPE
WARNINGS, UNITED STATES V. TEMPIA, 16 U.S.C.M.A. 629, 37 C.M.R. 249. 

DESPITE THESE ADVANCES, HOWEVER, THE MILITARY JUSTICE SYSTEM'S
DISREGARD OF THE CONSTITUTIONAL RIGHTS OF SERVICEMEN IS PERVASIVE.  SEE
HEARINGS ON CONSTITUTIONAL RIGHTS OF MILITARY PERSONNEL BEFORE THE
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE
JUDICIARY, PURSUANT TO S. RES. NO. 260, 87TH CONG., 2D SESS.; JOINT
HEARINGS ON S. 745 ET AL. BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL
RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY AND A SPECIAL
SUBCOMMITTEE OF THE SENATE ARMED SERVICES COMMITTEE, 89TH CONG., 2D
SESS., PTS.  1 AND 2.  SEE ALSO SUMMARY-REPORT OF HEARINGS ON
CONSTITUTIONAL RIGHTS OF MILITARY PERSONNEL, BY THE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY,
PURSUANT TO S. RES. NO. 58, 88TH CONG., 1ST SESS., (COMM. PRINT 1963). 
/5/  AT THE HEARINGS ON THE PROPOSED UNIFORM CODE OF MILITARY
JUSTICE, ONE WITNESS ANALOGIZED THE MILITARY COURT-MARTIAL PANEL TO A
JURY APPOINTED BY THE SHERIFF'S OFFICE.  HEARINGS ON THE UNIFORM CODE
OF MILITARY JUSTICE BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE OF
ARMED SERVICES, 81ST CONG., 1ST SESS., 630 (1949).  REP. SUTTON OF
TENNESSEE, HIMSELF A MUCH-DECORATED VETERAN, SUMMARIZED HIS VIEWS ON
THE STATE OF MILITARY JUSTICE DURING WORLD WAR II BY HIS STATEMENT,
DURING THE FLOOR DEBATES ON THE PROPOSED CODE, THAT "(HAD THEY USED THE
PENTAGON BUILDING FOR WHAT IT WAS DESIGNED, A VETERAN'S HOSPITAL,
AMERICA WOULD HAVE BEEN LOTS BETTER OFF TODAY."  95 CONG.REC.  5727. 

/6/  THE FEDERAL RULES OF CIVIL PROCEDURE GOVERN HABEAS CORPUS (RULE
81(A)(2)), THAT REMEDY BEING CIVIL IN NATURE; AND THOSE RULES ARE
COMPREHENSIVE, INCLUDING DEPOSITIONS AND DISCOVERY.  RULES 26-37. 

THE RULES OF PRACTICE AND PROCEDURE OF THE COURT OF MILITARY APPEALS
(SEE THE RULES FF. 10 U.S.C.A. 867, SUPP. 1972) CONTAIN NO PROVISIONS
RESPECTING HABEAS CORPUS. 

WHILE COLLATERAL REMEDIES HAVE BEEN RECOGNIZED BY THE COURT OF
MILITARY APPEALS SINCE 1966, UNITED STATES V. FRISCHHOLZ, 16 U.S.C.M.A.
150, 36 C.M.R. 306, AND THE EXPRESS POWER TO GRANT HABEAS CORPUS RELIEF
WAS ASSERTED IN 1967, LEVY V. RESOR, 17 U.S.C.M.A. 135, 37 C.M.R. 399,
THE MILITARY PRISONER IS AT A SUBSTANTIAL DISADVANTAGE COMPARED TO HIS
CIVILIAN COUNTERPART.  SEE UNIFORM CODE OF MILITARY JUSTICE, ARTS. 32,
36, 46, AND 49, 10 U.S.C. 832, 836, 846, AND 849.  SEE MELNICK, THE
DEFENDANT'S RIGHT TO OBTAIN EVIDENCE:  AN EXAMINATION OF THE MILITARY
VIEWPOINT, 29 MIL.L.REV.  1 (1965).  SEE GENERALLY M. COMISKY & L.
APOTHAKER, CRIMINAL PROCEDURE IN THE UNITED STATES DISTRICT AND
MILITARY COURTS (1963).  AND SEE MANUAL FOR COURTS-MARTIAL, PARAS. 30F,
34, 115, 117, AND 145A (1968). 

/7/  50 U.S.C. APP. 456(J).  SEE UNITED STATES V. SEEGER, 380 U.S.
163. 

/8/  SEE GILLETTE V. UNITED STATES, 401 U.S. 437, 463 (DOUGLAS, J.,
DISSENTING). 

/9/  ANOTHER FACTER MILITATING AGAINST THE COURT'S RELIANCE ON
"COMITY" IN ANALYZING THE INSULATION OF THE MILITARY JUSTICE SYSTEM
FROM CIVILIAN REVIEW IS THE ENORMOUS POWER OF THE MILITARY IN MODERN
AMERICAN LIFE. 

"FROM AN INITIAL AUTHORIZED STRENGTH OF WELL UNDER ONE THOUSAND, OUR
ARMY ALONE HAS GROWN INTO A BEHEMOTH NUMBERING WELL OVER A MILLION MEN
EVEN IN TIME OF NOMINAL PEACE.  NO LONGER DOES THE MILITARY LIE DORMANT
AND UNNOTICED FOR YEARS ON END, COMING TO THE ATTENTION OF THE TYPICAL
CITIZEN ONLY IN TIME OF WAR.  TODAY EVERY MALE RESIDENT IS A POTENTIAL
SOLDIER, SAILOR, OR AIRMAN; AND IT HAS BEEN ESTIMATED THAT EVEN IN TIME
OF PEACE SUCH SERVICE OCCUPIES AT LEAST FOUR PERCENT OF THE ADULT LIFE
OF THE AVERAGE AMERICAN REACHING DRAFT AGE.  AS MR. CHIEF JUSTICE
WARREN RECENTLY OBSERVED: 

"'WHEN THE AUTHORITY OF THE MILITARY HAS SUCH A SWEEPING CAPACITY
FOR AFFECTING THE LIVES OF OUR CITIZENRY, THE WISDOM OF TREATING THE
MILITARY ESTABLISHMENT AS AN ENCLAVE BEYOND THE REACH OF THE CIVILIAN
COURTS ALMOST INEVITABLY IS DRAWN INTO QUESTION.'  (WARREN, THE BILL OF
RIGHTS AND THE MILITARY, 37 N.Y.U.L.REV.  181, 188.)" 

COMMENT, GOD, THE ARMY, AND JUDICIAL REVIEW:  THE IN-SERVICE
CONSCIENTIOUS OBJECTOR, 56 CALIF.L.REV.  379, 446-447. 

RICHARD L. GOFF ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE GEORGE A. BLACKSTONE AND STEPHEN V. BOMSE. 

WILLIAM TERRY BRAY ARGUED THE CAUSE FOR RESPONDENTS.  ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MARDIAN,
WILLIAM BRADFORD REYNOLDS, ROBERT L. KEUCH, AND ROBERT A. CRANDALL. 
..END :






LINDSEY V. NORMET, 405 U.S. 56 


       LINDSEY ET AL. V. NORMET ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF OREGON

        NO. 70-5045.  ARGUED NOVEMBER 15, 1971-- DECIDED FEBRUARY

           23, 1972 


APPELLANTS, MONTH-TO-MONTH TENANTS OF APPELLEE NORMET, REFUSED TO PAY
THEIR MONTHLY RENT UNLESS CERTAIN SUBSTANDARD CONDITIONS WERE REMEDIED,
AND APPELLEE THREATENED EVICTION.  APPELLANTS FILED A CLASS ACTION
SEEKING A DECLARATORY JUDGMENT THAT THE OREGON FORCIBLE ENTRY AND
WRONGFUL DETAINER (FED) STATUTE WAS UNCONSTITUTIONAL ON ITS FACE, AND
AN INJUNCTION AGAINST ITS CONTINUED ENFORCEMENT.  APPELLANTS ATTACKED
PRINCIPALLY (1) THE REQUIREMENT OF TRIAL NO LATER THAN SIX DAYS AFTER
SERVICE OF THE COMPLAINT UNLESS SECURITY FOR ACCRUING RENT IS PROVIDED,
(2) THE LIMITATION OF TRIABLE ISSUES TO THE TENANT'S DEFAULT, DEFENSES
BASED ON THE LANDLORD'S BREACH OF DUTY TO MAINTAIN THE PREMISES BEING
PRECLUDED, AND (3) THE REQUIREMENT OF POSTING BOND ON APPEAL, WITH TWO
SURETIES, IN TWICE THE AMOUNT OF RENT EXPECTED TO ACCRUE PENDING
APPELLATE DECISION, THIS BOND TO BE FORFEITED IF THE LOWER COURT
DECISION IS AFFIRMED.  THE DISTRICT COURT GRANTED THE MOTION TO DISMISS
THE COMPLAINT, CONCLUDING THAT THE STATUTE DID NOT VIOLATE THE DUE
PROCESS OR THE EQUAL PROTECTION CLAUSE.  HELD: 

1.  NEITHER THE EARLY-TRIAL PROVISION NOR THE LIMITATION ON
LITIGABLE ISSUES IS INVALID ON ITS FACE UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  PP. 64-69. 

(A) THE TIME FOR TRIAL PREPARATION IS NOT UNDULY SHORT WHERE THE
ISSUE IS SIMPLY WHETHER THE TENANT HAS PAID OF HAS HELD OVER, AND THE
REQUIREMENT FOR RENT SECURITY FOR A CONTINUANCE OF THE ACTION IS NOT
IRRATIONAL OR OPPRESSIVE.  PP. 64-65. 

(B) APPELLANTS ARE NOT DENIED DUE PROCESS BECAUSE RENTAL PAYMENTS
ARE NOT SUSPENDED WHILE THE ALLEGED WRONGDOINGS OF THE LANDLORD ARE
LITIGATED, AS OREGON MAY TREAT THE TENANT'S UNDERTAKINGS AND THOSE OF
THE LANDLORD AS INDEPENDENT COVENANTS.  P. 68. 

(C) APPELLANTS ARE NOT FORECLOSED FROM INSTITUTING SUIT AGAINST THE
LANDLORD AND LITIGATING THEIR RIGHT TO DAMAGES AND OTHER RELIEF IN THAT
ACTION, NOR HAVE THEY SHOWN THAT OREGON EXCLUDES ANY "AVAILABLE"
DEFENSES ON THE LIMITED QUESTIONS AT ISSUE IN AN FED SUIT.  PP. 65-66,
69. 

2.  NEITHER THE EARLY-TRIAL PROVISION NOR THE LIMITATION ON
LITIGABLE ISSUES IS INVALID ON ITS FACE UNDER THE EQUAL PROTECTION
CLAUSE.  PP. 69-74. 

(A) THE STATE HAS THE POWER TO IMPLEMENT ITS LEGITIMATE OBJECTIVE OF
ACHIEVING RAPID AND PEACEFUL SETTLEMENT OF POSSESSORY DISPUTES BETWEEN
LANDLORD AND TENANT BY ENACTING SPECIAL PROVISIONS APPLICABLE ONLY TO
SUCH DISPUTES.  PP. 70-73. 

(B) ABSENT CONSTITUTIONAL MANDATE, THE ASSURANCE OF ADEQUATE HOUSING
AND THE DEFINITION OF LANDLORD-TENANT RELATIONSHIPS IS A LEGISLATIVE
FUNCTION.  P. 74. 

3.  THE DOUBLE-BOND PREREQUISITE FOR APPEALING AN FED ACTION DOES
VIOLATE THE EQUAL PROTECTION CLAUSE AS IT ARBITRARILY DISCRIMINATES
AGAINST TENANTS WISHING TO APPEAL FROM ADVERSE FED DECISIONS.  IT
HEAVILY BURDENS THE STATUTORY RIGHT OF AN FED DEFENDANT TO APPEAL AND
IS NOT NECESSARY TO EFFECTUATE THE STATE'S PURPOSE OF PRESERVING THE
PROPERTY AT ISSUE.  PP. 74-79. 

AFFIRMED IN PART AND REVERSED IN PART. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J.,
POST, P. 79, AND BRENNAN, J., POST, P. 90, FILED OPINIONS DISSENTING IN
PART.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF WHETHER OREGON'S JUDICIAL
PROCEDURE FOR EVICTION OF TENANTS AFTER NONPAYMENT OF RENT VIOLATES
EITHER THE EQUAL PROTECTION CLAUSE OR THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT. 

THE MATERIAL FACTS WERE STIPULATED.  APPELLANTS WERE THE MONTH-TO
MONTH TENANTS OF APPELLEE NORMET /1/  AND PAID $100 A MONTH FOR THE USE
OF A SINGLE-FAMILY RESIDENCE IN PORTLAND, OREGON.  ON NOVEMBER 10,
1969, THE CITY BUREAU OF BUILDINGS DECLARED THE DWELLING UNFIT FOR
HABITATION DUE TO SUBSTANDARD CONDITIONS ON THE PREMISES.  /2/
APPELLANTS REQUESTED APPELLEE TO MAKE CERTAIN REPAIRS WHICH, WITH ONE
MINOR EXCEPTION, APPELLEE REFUSED TO DO.  APPELLANTS, WHO HAD PAID THE
NOVEMBER RENT, REFUSED TO PAY THE DECEMBER RENT UNTIL THE REQUESTED
IMPROVEMENTS HAD BEEN MADE.  APPELLEE'S ATTORNEY WROTE A LETTER ON
DECEMBER 15 THREATENING TO "GET A COURT ORDER OUT ON THIS MATTER"
UNLESS THE ACCRUED RENT WAS IMMEDIATELY PAID. 

ON JANUARY 7, 1970, HOWEVER, BEFORE STATUTORY EVICTION PROCEDURES
WERE BEGUN IN THE OREGON COURTS, APPELLANTS FILED SUIT IN FEDERAL
DISTRICT COURT UNDER 42 U.S.C. 1983 SEEKING A DECLARATORY JUDGMENT THAT
THE OREGON FORCIBLE ENTRY AND WRONGFUL DETAINER (HEREINAFTER SOMETIMES
FED) STATUTE, ORE.  REV.  STAT. (ORS) SECS. 105.105-105.160, /3/  WAS
UNCONSTITUTIONAL ON ITS FACE, AND AN INJUNCTION AGAINST ITS CONTINUED
ENFORCEMENT.  A THREE-JUDGE COURT WAS CONVENED UNDER 28 U.S.C. 2281, A
TEMPORARY RESTRAINING ORDER WAS ISSUED AGAINST THE ENFORCEMENT OF THE
FED STATUTE, AND APPELLANTS WERE ORDERED TO MAKE THEIR RENT PAYMENTS
INTO AN ESCROW ACCOUNT DURING THE PENDENCY OF THE DISTRICT COURT
PROCEEDING.  A LENGTHY STIPULATION OF FACTS WAS AGREED UPON, A NUMBER
OF EXHIBITS AND DEPOSITIONS WERE SUBMITTED, AND THE DISTRICT COURT THEN
GRANTED APPELLEE'S MOTION TO DISMISS THE COMPLAINT, /4/  AFTER
CONCLUDING THAT THE STATUTE WAS NOT UNCONSTITUTIONAL UNDER EITHER THE
DUE PROCESS CLAUSE OR THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  /5/  APPELLANTS PROMPTLY APPEALED, AND WE NOTED PROBABLY
JURISDICTION.  /6/

    I 

THE OREGON FORCIBLE ENTRY AND WRONGFUL DETAINER STATUTE ESTABLISHES
A PROCEDURE INTENDED TO INSURE THAT ANY ENTRY UPON REAL PROPERTY "SHALL
BE MADE IN A PEACEABLE MANNER AND WITHOUT FORCE."  SEC. 105.105.  A
LANDLORD MAY BRING AN ACTION FOR POSSESSION WHENEVER THE TENANT HAS
FAILED TO PAY RENT WITHIN 10 DAYS OF THE DUE DATE, WHEN THE TENANT IS
HOLDING CONTRARY TO SOME OTHER CONVENANT IN A LEASE, AND WHENEVER THE
LANDLORD HAS TERMINATED THE RENTAL ARRANGEMENT BY PROPER NOTICE AND THE
TENANT REMAINS IN POSSESSION AFTER THE EXPIRATION DATE SPECIFIED IN THE
NOTICE.  SEC. 105.115.  SERVICE OF THE COMPLAINT ON THE TENANT MUST BE
NOT LESS THAN TWO NOR MORE THAN FOUR DAYS BEFORE THE TRIAL DATE, SEC.
105.135; A TENANT MAY OBTAIN A TWO-DAY CONTINUANCE, BUT GRANT OF A
LONGER CONTINUANCE IS CONDITIONED ON A TENANT'S POSTING SECURITY FOR
THE PAYMENT OF ANY RENT THAT MAY ACCRUE, IF THE PLAINTIFF ULTIMATELY
PREVAILS, DURING THE PERIOD OF THE CONTINUANCE.  SEC. 105.140.  THE
SUIT MAY BE TRIED TO EITHER A JUDGE OR A JURY, AND THE ONLY ISSUE IS
WHETHER THE ALLEGATIONS OF THE COMPLAINT ARE TRUE, SECS. 105.145,
105.150.  THE ONLY AWARD THAT A PLAINTIFF MAY RECOVER IS RESTITUTION OF
POSSESSION.  SEC. 105.155.  A DEFENDANT WHO LOSES SUCH A SUIT MAY
APPEAL ONLY IF HE OBTAINS TWO SURETIES WHO WILL PROVIDE SECURITY FOR
THE PAYMENT TO THE PLAINTIFF, IF THE DEFENDANT ULTIMATELY LOSES ON
APPEAL, OF TWICE THE RENTAL VALUE OF THE PROPERTY FROM THE TIME OF
COMMENCEMENT OF THE ACTION TO FINAL JUDGMENT.  SEC. 105.160.  /7/ 

APPELLANTS' PRINCIPAL ATTACKS /8/  ARE LEVELED AT THREE
CHARACTERISTICS OF THE OREGON FED STATUTE:  THE REQUIREMENT OF A TRIAL
NO LATER THAN SIX DAYS AFTER SERVICE OF THE COMPLAINT UNLESS SECURITY
FOR ACCRUING RENT IS PROVIDED; THE PROSIVIONS OF SEC. 105.145 WHICH,
EITHER ON THEIR FACE OR AS CONSTRUED, ARE SAID TO LIMIT THE TRIABLE
ISSUES IN AN FED SUIT TO THE TENANT'S DEFAULT AND TO PRECLUDE
CONSIDERATION OF DEFENSES BASED ON THE LANDLORD'S BREACH OF A DUTY TO
MAINTAIN THE PREMISES; AND THE REQUIREMENT OF POSTING BOND ON APPEAL
FROM AN ADVERSE DECISION IN TWICE THE AMOUNT OF THE RENT EXPECTED TO
ACCRUE PENDING APPELLATE DECISION.  THESE PROVISIONS ARE ASSERTED TO
VIOLATE BOTH THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE
FOURTEENTH AMENDMENT.  EXCEPT FOR THE APPEAL BOND REQUIREMENT (SEE PART
IV, INFRA), WE REJECT THESE CLAIMS. 

II 

WE ARE UNABLE TO CONCLUDE THAT EITHER THE EARLY-TRIAL PROVISION OR
THE LIMITATION ON LITIGABLE ISSUES IS INVALID ON ITS FACE UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IN THOSE RECURRING CASES
WHERE THE TENANT FAILS TO PAY RENT OR HOLDS OVER AFTER EXPIRATION OF
HIS TENANCY AND THE ISSUE IN THE ENSUING LITIGATION IS SIMPLY WHETHER
HE HAS PAID OR HELD OVER, WE CANNOT DECLARE THAT THE OREGON STATUTE
ALLOWS AN UNDULY SHORT TIME FOR TRIAL PREPARATION.  TENANTS WOULD
APPEAR TO HAVE AS MUCH ACCESS TO RELEVANT FACTS AS THEIR LANDLORD, AND
THEY CAN BE EXPECTED TO KNOW THE TERMS OF THEIR LEASE, WHETHER THEY
HAVE PAID THEIR RENT, WHETHER THEY ARE IN POSSESSION OF THE PREMISES,
AND WHETHER THEY THEY HAVE RECEIVED A PROPER NOTICE TO QUIT, IF ONE IS
NECESSARY.  PARTICULARLY WHERE, AS HERE, RENT HAS ADMITTEDLY BEEN
DELIBERATELY WITHHELD AND DEMAND FOR PAYMENT MADE, CLAIMS OF PREJUDICE
FROM AN EARLY TRIAL DATE ARE UNPERSUASIVE.  THE PROVISION FOR
CONTINUANCE OF THE ACTION IF THE TENANT POSTS SECURITY FOR ACCRUING
RENT MEANS THAT IN CASES WHERE TENANT DEFENDANTS, UNLIKE APPELLANTS,
DENY NONPAYMENT OF RENT AND MAY REQUIRE MORE TIME TO PREPARE FOR
LITIGATION, THEY WILL NOT BE FORCED TO TRIAL IF THEY PROVIDE FOR RENT
PAYMENTS IN THE INTERIM.  A REQUIREMENT THAT THE TENANT PAY OR PROVIDE
FOR THE PAYMENT OF RENT DURING THE CONTINUANCE OF THE ACTION IS HARDLY
IRRATIONAL OR OPPRESSIVE.  IT IS CUSTOMARY TO PAY RENT IN ADVANCE, AND
THE SIMPLICITY OF THE ISSUES IN THE TYPICAL FED ACTION WILL USUALLY NOT
REQUIRE EXTENDED TRIAL PREPARATION AND LITIGATION, THUS MAKING THE
POSTING OF A LARGE SECURITY DEPOSIT UNNECESSARY.  OF COURSE, IT IS
POSSIBLE FOR THIS PROVISION TO BE APPLIED SO AS TO DEPRIVE A TENANT OF
A PROPER HEARING IN SPECIFIC SITUATIONS, BUT THERE IS NO SUCH SHOWING
MADE HERE, AND POSSIBLE INFIRMITY IN OTHER SITUATIONS DOES NOT RENDER
IT INVALID ON ITS FACE.  /9/ 

NOR DOES OREGON DENY DUE PROCESS OF LAW BY RESTRICTING THE ISSUES IN
FED ACTIONS TO WHETHER THE TENANT HAS PAID RENT AND HONORED THE
CONVENANTS HE HAS ASSUMED, ISSUES THAT MAY BE FAIRLY AND FULLY
LITIGATED UNDER THE OREGON PROCEDURE.  THE TENANT IS BARRED FROM
RAISING CLAIMS IN THE FED ACTION THAT THE LANDLORD HAS FAILED TO
MAINTAIN THE PREMISES, BUT THE LANDLORD IS ALSO BARRED FROM CLAIMING
BACK RENT OR ASSERTING OTHER CLAIMS AGAINST THE TENANT.  /10/  THE
TENANT IS NOT FORECLOSED FROM INSTITUTING HIS OWN ACTION AGAINST THE
LANDLORD AND LITIGATING HIS RIGHT TO DAMAGES OR OTHER RELIEF IN THAT
ACTION.  /11/ 

"DUE PROCESS REQUIRES THAT THERE BE AN OPPORTUNITY TO PRESENT EVERY
AVAILABLE DEFENSE."  AMERICAN SURETY CO. V. BALDWIN, 287 U.S. 156, 168
(1932).  SEE ALSO NICKEY V. MISSISSIPPI, 292 U.S. 393, 396 (1934). 
APPELLANTS DO NOT DENY, HOWEVER, THAT THERE ARE AVAILABLE PROCEDURES TO
LITIGATE ANY CLAIMS AGAINST THE LANDLORD COGNIZABLE IN OREGON.  THEIR
CLAIM IS THAT THEY ARE DENIED DUE PROCESS OF LAW BECAUSE THE RENTAL
PAYMENTS ARE NOT SUSPENDED WHILE THE ALLEGED WRONGDOINGS OF THE
LANDLORD ARE LITIGATED.  /12/  WE SEE NO CONSTITUTIONAL BARRIER TO
OREGON'S INSISTENCE THAT THE TENANT PROVIDE FOR ACCRUING RENT PENDING
JUDICIAL SETTLEMENT OF HIS DISPUTES WITH THE LESSOR.  /13/ 

THE COURT HAS TWICE HELD THAT IT IS PERMISSIBLE TO SEGREGATE AN
ACTION FOR POSSESSION OF PROPERTY FROM OTHER ACTIONS ARISING OUT OF THE
SAME FACTUAL SITUATION THAT MAY ASSERT VALID LEGAL OR EQUITABLE
DEFENSES OR COUNTERCLAIMS.  IN GRANT TIMBER & MFG. CO. V. GRAY, 236
U.S. 133 (1915) (HOLMES, J.), THE COURT UPHELD AGAINST DUE PROCESS
ATTACK A LOUISIANA PROCEDURE THAT PROVIDED THAT A DEFENDANT SUED IN A
POSSESSORY ACTION FOR REAL PROPERTY COULD NOT BRING AN ACTION TO
ESTABLISH TITLE OR PRESENT EQUITABLE CLAIMS UNTIL AFTER THE POSSESSORY
SUIT WAS BROUGHT TO A CONCLUSION.  /14/  IN BIANCHI V. MORALES, 262
U.S. 170 (1923) (HOLMES, J.), THE COURT CONSIDERED PUERTO RICO'S
MORTGAGE LAW WHICH PROVIDED FOR SUMMARY FORECLOSURE OF A MORTGAGE
WITHOUT ALLOWING ANY DEFENSE EXCEPT PAYMENT.  THE COURT CONCLUDED THAT
IT WAS PERMISSIBLE UNDER THE DUE PROCESS CLAUSE TO "EXCLUDE ALL CLAIMS
OF ULTIMATE RIGHT FROM POSSESSORY ACTIONS," ID., AT 171, AND TO ALLOW
OTHER EQUITABLE DEFENSES TO BE SET UP IN A SEPARATE ACTION TO ANNUL THE
MORTGAGE. 

UNDERLYING APPELLANTS' CLAIM IS THE ASSUMPTION THAT THEY ARE DENIED
DUE PROCESS OF LAW UNLESS OREGON RECOGNIZES THE FAILURE OF THE LANDLORD
TO MAINTAIN THE PREMISES AS AN OPERATIVE DEFENSE TO THE POSSESSORY FED
ACTION AND AS AN ADEQUATE EXCUSE FOR NONPAYMENT OF RENT.  THE
CONSTITUTION HAS NOT FEDERALIZED THE SUBSTANTIVE LAW OF LANDLORD-TENANT
RELATIONS, HOWEVER, AND WE SEE NOTHING TO FORBID OREGON FROM TREATING
THE UNDERTAKINGS OF THE TENANT AND THOSE OF THE LANDLORD AS INDEPENDENT
RATHER THAN DEPENDENT COVENANTS.  LIKEWISE, THE CONSTITUTION DOES NOT
AUTHORIZE US TO REQUIRE THAT THE TERM OF AN OTHERWISE EXPIRED TENANCY
BE EXTENDED WHILE THE TENANT'S DAMAGE CLAIMS AGAINST THE LANDLORD ARE
LITIGATED.  THE SUBSTANTIVE LAW OF LANDLORD-TENANT RELATIONS DIFFERS
WIDELY IN THE VARIOUS STATES.  IN SOME JURISDICTIONS, A TENANT MAY
ARGUE AS A DEFENSE TO EVICTION FOR NONPAYMENT OF RENT SUCH CLAIMS AS
UNREPAIRED BUILDING CODE VIOLATIONS, BREACH OF AN IMPLIED WARRANTY OF
HABITABILITY, OR THE FACT THAT THE LANDLORD IS EVICTING HIM FOR
REPORTED BUILDING CODE VIOLATIONS OR FOR EXERCISING CONSTITUTIONAL
RIGHTS.  /15/  SOME STATES HAVE ENACTED STATUTES AUTHORIZING RENT
WITHHOLDING IN CERTAIN SITUATIONS.  /16/  IN OTHER JURISDICTIONS, THESE
CLAIMS, IF COGNIZABLE AT ALL, MUST BE LITIGATED IN SEPARATE TORT,
CONTRACT, OR CIVIL RIGHTS SUITS.  THERE IS NO SHOWING THAT OREGON
EXCLUDES ANY DEFENSES IT RECOGNIZES AS "AVAILABLE" ON THE THREE
QUESTIONS (PHYSICAL POSSESSION, FORCIBLE WITHHOLDING, LEGAL RIGHT TO
POSSESSION) AT ISSUE IN AN FED SUIT. 

    III 

WE ALSO CANNOT AGREE THAT THE FED STATUTE IS INVALID ON ITS FACE
UNDER THE EQUAL PROTECTION CLAUSE.  IT IS TRUE THAT OREGON FED SUITS
DIFFER SUBSTANTIALLY FROM OTHER LITIGATION, WHERE THE TIME BETWEEN
COMPLAINT AND TRIAL IS SUBSTANTIALLY LONGER, /17/  AND WHERE A BROADER
RANGE OF ISSUES MAY BE CONSIDERED.  BUT IT DOES NOT FOLLOW THAT THE
OREGON STATUTE INVIDIOUSLY DISCRIMINATES AGAINST DEFENDANTS IN FED
ACTIONS. 

THE STATUTE POTENTIALLY APPLIES TO ALL TENANTS, RICH AND POOR,
COMMERICAL AND NONCOMMERCIAL; IT CANNOT BE FAULTED FOR OVER
EXCLUSIVENESS OR UNDER-EXCLUSIVENESS.  AND CLASSIFYING TENANTS OF REAL
PROPERTY DIFFERENTLY FROM OTHER TENANTS FOR PURPOSES OF POSSESSORY
ACTIONS WILL OFFEND THE EQUAL PROTECTION SAFEGUARD "ONLY IF THE
CLASSIFICATION RESTS ON GROUNDS WHOLLY IRRELEVANT TO THE ACHIEVEMENT OF
THE STATE'S OBJECTIVE," MCGOWAN V. MARYLAND, 366 U.S. 420, 425 (1961),
OR IF THE OBJECTIVE ITSELF IS BEYOND THE STATE'S POWER TO ACHIEVE,
GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960); NAACP V. ALABAMA, 377 U.S.
288 (1964); DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963).  IT IS READILY
APPARENT THAT PROMPT AS WELL AS PEACEFUL RESOLUTION OF DISPUTES OVER
THE RIGHT TO POSSESSION OF REAL PROPERTY IS THE END SOUGHT BY THE
OREGON STATUTE.  /18/  IT IS ALSO CLEAR THAT THE PROVISIONS FOR EARLY
TRIAL AND SIMPLIFICATION OF ISSUES ARE CLOSELY RELATED TO THAT
PURPOSE.  THE EQUAL PROTECTION CLAIM WITH RESPECT TO THESE PROVISIONS
THUS DEPENDS ON WHETHER THE STATE MAY VALIDLY SINGLE OUT POSSESSORY
DISPUTES BETWEEN LANDLORD AND TENANT FOR ESPECIALLY PROMPT JUDICIAL
SETTLEMENT.  IN MAKING SUCH AN INQUIRY A STATE IS "PRESUMED TO HAVE
ACTED WITHIN (ITS) CONSTITUTIONAL POWER DESPITE THE FACT THAT, IN
PRACTICE, (ITS) LAWS RESULT IN SOME INEQUALITY."  MCGOWAN V. MARYLAND,
SUPRA, AT 425-426. 

AT COMMON LAW, ONE WITH THE RIGHT TO POSSESSION COULD BRING AN
ACTION FOR EJECTMENT, A "RELATIVELY SLOW, FAIRLY COMPLEX, AND
SUBSTANTIALLY EXPENSIVE PROCEDURE."  /19/  BUT, AS OREGON CASES HAVE
RECOGNIZED, THE COMMON LAW ALSO PERMITTED THE LANDLORD TO "ENTER AND
EXPEL THE TENANT BY FORCE, WITHOUT BEING LIABLE TO AN ACTION OF TORT
FOR DAMAGES, EITHER FOR HIS ENTRY UPON THE PREMISES, OR FOR AN ASSAULT
IN EXPELLING THE TENANT, PROVIDED HE USES NO MORE FORCE THAN NECESSARY,
AND DOES) NO WANTON DAMAGE."  SMITH V. REEDER, 21 ORE.  541, 546, 28 P.
890, 891 (1892).  THE LANDLORD-TENANT RELATIONSHIP WAS ONE OF THE FEW
AREAS WHERE THE RIGHT TO SELF-HELP WAS RECOGNIZED BY THE COMMON LAW OF
MOST STATES, AND THE IMPLEMENTATION OF THIS RIGHT HAS BEEN FRAUGHT WITH
"VIOLENCE AND QUARRELS AND BLOODSHED."  ENTELMAN V. HAGOOD, 95 GA. 390,
392, 22 S.E. 545 (1895).  /20/  AN ALTERNATIVE LEGAL REMEDY TO PREVENT
SUCH BREACHES OF THE PEACE HAS APPEARED TO BE AN OVERRIDING NECESSITY
TO MANY LEGISLATORS AND JUDGES.     HENCE, THE OREGON STATUTE WAS
ENACTED IN 1866 TO ALTER THE COMMON LAW AND OBVIATE RESORT TO SELF-HELP
AND VIOLENCE.  THE STATUTE, INTENDED TO PROTECT TENANTS AS WELL AS
LANDLORDS, PROVIDED A SPEEDY, JUDICIALLY SUPERVISED PROCEEDING TO
SETTLE THE POSSESSORY ISSUE IN A PEACEFUL MANNER: 

"BUT IF (THE LANDLORD) FORCIBLY ENTER AND EXPEL THE TENANT, WHILE HE
MAY NOT BE LIABLE TO HIM IN AN ACTION OF TORT, HE IS GUILTY OF A
VIOLATION OF THE FORCIBLE ENTRY AND DETAINER ACT, WHICH IS DESIGNED TO
PROTECT THE PUBLIC PEACE; AND IN SUCH CASE THE LAW WILL AWARD
RESTITUTION TO THE TENANT, NOT BECAUSE IT RECOGNIZES ANY RIGHTS IN HIM,
BUT FOR THE REASON THAT OUT OF REGARD FOR PEACE AND GOOD ORDER OF
SOCIETY IT DOES NOT PERMIT A PERSON IN THE QUIET AND PEACEABLE
POSSESSION OF LAND TO BE DISTURBED BY FORCE, EVEN BY ONE LAWFULLY
ENTITLED TO THE POSSESSION."  SMITH V. REEDER, 21 ORE.,AT 546-547, 28
P.,AT 891. 

BEFORE A TENANT IS FORCIBLY EVICTED FROM PROPERTY THE OREGON STATUTE
REQUIRES A JUDICIAL DETERMINATION THAT HE IS NOT LEGALLY ENTITLED TO
POSSESSION.  "THE ACTION OF FORCIBLE ENTRY AND DETAINER IS INTENDED FOR
THE BENEFIT OF HIM WHOSE POSSESSION IS INVADED."  TAYLOR V. SCOTT, 10
ORE.  438, 485 (1883).  THE OBJECTIVE OF ACHIEVING RAPID AND PEACEFUL
SETTLEMENT OF POSSESSORY DISPUTES BETWEEN LANDLORD AND TENANT HAS AMPLE
HISTORICAL EXPLANATION AND SUPPORT.  IT IS NOT BEYOND THE STATE'S POWER
TO IMPLEMENT THAT PURPOSE BY ENACTING SPECIAL PROVISIONS APPLICABLE
ONLY TO POSSESSORY DISPUTES BETWEEN LANDLORD AND TENANT. 

THERE ARE UNIQUE FACTUAL AND LEGAL CHARACTERISTICS OF THE LANDLORD
TENANT RELATIONSHIP THAT JUSTIFY SPECIAL STATUTORY TREATMENT
INAPPLICABLE TO OTHER LITIGANTS.  THE TENANT IS, BY DEFINITION, IN
POSSESSION OF THE PROPERTY OF THE LANDLORD; UNLESS A JUDICIALLY
SUPERVISED MECHANISM IS PROVIDED FOR WHAT WOULD OTHERWISE BE SWIFT
REPOSSESSION BY THE LANDLORD HIMSELF, THE TENANT WOULD BE ABLE TO DENY
THE LANDLORD THE RIGHTS OF INCOME INCIDENT TO OWNERSHIP BY REFUSING TO
PAY RENT AND BY PREVENTING SALE OR RENTAL TO SOMEONE ELSE.  MANY
EXPENSES OF THE LANDLORD CONTINUE TO ACCRUE WHETHER A TENANT PAYS HIM
RENT OR NOT.  SPEEDY ADJUDICATION IS DESIRABLE TO PREVENT SUBJECTING
THE LANDLORD TO UNDESERVED ECONOMIC LOSS AND THE TENANT TO UNMERITED
HARASSMENT AND DISPOSSESSION WHEN HIS LEASE OR RENTAL AGREEMENT GIVES
HIM THE RIGHT TO PEACEFUL AND UNDISTURBED POSSESSION OF THE PROPERTY. 
HOLDING OVER BY THE TENANT BEYOND THE TERM OF HIS AGREEMENT OR HOLDING
WITHOUT PAYMENT OF RENT HAS PROVED A VIRULENT SOURCE OF FRICTION AND
DISPUTE.  WE THINK OREGON WAS WELL WITHIN ITS CONSTITUTIONAL POWERS IN
PROVIDING FOR RAPID AND PEACEFUL SETTLEMENT OF THESE DISPUTES. 

APPELLANTS ARGUE, HOWEVER, THAT A MORE STRINGENT STANDARD THAN MERE
RATIONALITY SHOULD BE APPLIED BOTH TO THE CHALLENGED CLASSIFICATION AND
ITS STATED PURPOSE.  THEY CONTEND THAT THE "NEED FOR DECENT SHELTER"
AND THE "RIGHT TO RETAIN PEACEFUL POSSESSION OF ONE'S HOME" ARE
FUNDAMENTAL INTERESTS WHICH ARE PARTICULARLY IMPORTANT TO THE POOR AND
WHICH MAY BE TRENCHED UPON ONLY AFTER THE STATE DEMONSTRATES SOME
SUPERIOR INTEREST.  THEY INVOKE THOSE CASES HOLDING THAT CERTAIN
CLASSIFICATIONS BASED ON UNALTERABLE TRAITS SUCH AS RACE /21/  AND
LINEAGE /22/  ARE INHERENTLY SUSPECT AND MUST BE JUSTIFIED BY SOME
"OVERRIDING STATUTORY PURPOSE."  THEY ALSO RELY ON CASES WHERE
CLASSIFICATIONS BURDENING OR INFRINGING CONSTITUTIONALLY PROTECTED
RIGHTS WERE REQUIRED TO BE JUSTIFIED AS "NECESSARY TO PROMOTE A
COMPELLING GOVERNMENTAL INTEREST."  /23/ 

WE DO NOT DENIGRATE THE IMPORTANCE OF DECENT, SAFE, AND SANITARY
HOUSING.  BUT THE CONSTITUTION DOES NOT PROVIDE JUDICIAL REMEDIES FOR
EVERY SOCIAL AND ECONOMIC ILL.  WE ARE UNABLE TO PERCEIVE IN THAT
DOCUMENT ANY CONSTITUTIONAL GUARANTEE OF ACCESS TO DWELLINGS OF A
PARTICULAR QUALITY, OR ANY RECOGNITION OF THE RIGHT OF A TENANT TO
OCCUPY THE REAL PROPERTY OF HIS LANDLORD BEYOND THE TERM OF HIS LEASE
WITHOUT THE PAYMENT OF RENT OR OTHERWISE CONTRARY TO THE TERMS OF THE
RELEVANT AGREEMENT.  ABSENT CONSTITUTIONAL MANDATE, THE ASSURANCE OF
ADEQUATE HOUSING AND THE DEFINITION OF LANDLORD-TENANT RELATIONSHIPS
ARE LEGISLATIVE, NOT JUDICIAL, FUNCTIONS.  NOR SHOULD WE FORGET THAT
THE CONSTITUTION EXPRESSLY PROTECTS AGAINST CONFISCATION OF PRIVATE
PROPERTY OR THE INCOME THEREFROM. 

SINCE THE PURPOSE OF THE OREGON FORCIBLE ENTRY AND WRONGFUL DETAINER
STATUTE IS CONSTITUTIONALLY PERMISSIBLE AND SINCE THE CLASSIFICATION
UNDER ATTACK IS RATIONALLY RELATED TO THAT PURPOSE, THE STATUTE IS NOT
REPUGNANT TO THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

        IV 

WE AGREE WITH APPELLANTS, HOWEVER, THAT THE DOUBLE-BOND PREREQUISITE
FOR APPEALING AN FED ACTION VIOLATES THEIR RIGHT TO THE EQUAL
PROTECTION OF THE LAWS.  TO APPEAL A CIVIL CASE IN OREGON, THE ORDINARY
LITIGANT MUST FILE AN UNDERTAKING, WITH ONE OR MORE SURETIES, COVERING
"ALL DAMAGES, COSTS AND DISBURSEMENTS WHICH MAY BE AWARDED AGAINST HIM
ON THE APPEAL."  ORS SEC. 19.040.  /24/  IN ORDER TO SECURE A STAY OF
EXECUTION, THE UNDERTAKING, WHERE THE JUDGMENT IS FOR MONEY, MUST ALSO
PROVIDE THAT THE APPELLANT WILL SATISFY THE JUDGMENT IF HE LOSES THE
APPEAL OR, IF THE JUDGMENT IS FOR REAL PROPERTY, THAT HE WILL COMMIT NO
WASTE DURING THE PENDENCY OF THE APPEAL AND, IF HE LOSES THE APPEAL,
THAT HE WILL PAY FOR THE USE OF THE PROPERTY DURING THAT TIME.  IN AN
FED ACTION, HOWEVER, A DEFENDANT WHO LOSES IN THE DISTRICT COURT AND
WHO WISHES TO APPEAL MUST GIVE "IN ADDITION TO THE UNDERTAKING NOW
REQUIRED BY LAW UPON APPEAL," AN UNDERTAKING WITH TWO SURETIES FOR THE
PAYMENT OF TWICE THE RENTAL VALUE OF THE PREMISES "FROM THE
COMMENCEMENT OF THE ACTION IN WHICH THE JUDGMENT WAS RENDERED UNTIL
FINAL JUDGMENT IN THE ACTION."  ORS SEC. 105.160.  IN THE EVENT THE
JUDGMENT IS AFFIRMED, THE LANDLORD IS AUTOMATICALLY ENTITLED TO TWICE
THE RENTS ACCRUING DURING THE APPEAL WITHOUT PROOF OF ACTUAL DAMAGE IN
THAT AMOUNT.  SEE PRIESTER V. THRALL, 229 ORE.  184, 187, 349 P.2D 866,
868 (1960).  IN SCALES V. SPENCER, 246 ORE.  111, 113-114, 424 P.2D
242, 243 (1967), THE OREGON SUPREME COURT EXPLAINED THE RATIONALE OF
THE DOUBLE-BOND REQUIREMENT: 

     "INASMUCH AS A FINAL JUDGMENT FOR RESTITUTION COULD NOT
INCLUDE

  A JUDGMENT FOR RENT PENDING APPEAL IT APPEARS OBVIOUS THAT THE

  LEGISLATIVE PURPOSE FOR REQUIRING THIS PARTICULAR BOND ON APPEAL

  WAS TO GUARANTEE THAT THE RENT PENDING AN APPEAL WOULD BE PAID. 

  THAT THE BOND MUST PROVIDE FOR DOUBLE THE RENTAL VALUE WAS, NO

  DOUBT, INTENDED TO PREVENT FRIVOLOUS APPEALS FOR THE PURPOSE OF

  DELAY.  IF THERE WERE NOT SOME ADDED COST OR RESTRICTION EVERY

  OUSTED TENANT WOULD APPEAL, REGARDLESS OF THE JUSTIFICATION.  IT

  CAN ALSO BE ASSUMED THAT THE ADDITIONAL PAYMENT WOULD COMPENSATE

  FOR WASTE OR IS IN LIEU OF DAMAGES FOR THE UNLAWFUL HOLDING

  OVER." 

WE HAVE EARLIER SAID THAT OREGON MAY VALIDLY MAKE SPECIAL PROVISION
FOR THE PEACEFUL AND EXPENDITIOUS SETTLEMENT OF DISPUTES OVER
POSSESSION BETWEEN LANDLORD AND TENANT AND THAT THE EARLY-TRIAL AND
CONTINUANCE BOND PROVISIONS OF THE FED STATUTE RATIONALLY IMPLEMENT
THAT PURPOSE BECAUSE THE TENANT'S RIGHT TO POSSESSION BEYOND THE
INITIAL SIX-DAY PERIOD IS CONDITIONED ON SECURING THE LANDLORD AGAINST
THE LOSS OF ACCRUING RENT.  SIMILIAR CONDITIONS ON THE TENANT'S RIGHT
TO APPEAL, SUCH AS THOSE IMPOSED BY SEC. 19.040, WOULD ALSO RAISE TO
APPEAL NO SERIOUS CONSTITUTIONAL QUESTIONS, AT LEAST ON THE FACE OF
SUCH A STATUTE.  SECTION 105.160, HOWEVER, IMPOSES ADDITIONAL
REQUIREMENTS THAT IN OUR JUDGMENT BEAR NO REASONABLE RELATIONSHIP TO
ANY VALID STATE OBJECTIVE AND THAT ARBITRARILY DISCRIMINATE AGAINST
TENANTS APPEALING FROM ADVERSE DECISIONS IN FED ACTIONS. 

THIS COURT HAS RECOGNIZED THAT IF A FULL AND FAIR TRIAL ON THE
MERITS IS PROVIDED, THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
DOES NOT REQUIRE A STATE TO PROVIDE APPELLATE REVIEW, GRIFFIN V.
ILLINOIS, 351 U.S. 12, 18 (1956); DISTRICT OF COLUMBIA V. CLAWANS, 300
U.S. 617, 627 (1937); OHIO V. AKRON PARK DISTRICT, 281 U.S. 74, 80
(1930); REETZ V. MICHIGAN, 188 U.S. 505, 508 (1903); MCKANE V. DURSTON,
153 U.S. 684, 687-688 (1894), AND THE CONTINUING VALIDITY OF THESE
CASES IS NOT AT ISSUE HERE.  WHEN AN APPEAL IS AFFORDED, HOWEVER, IT
CANNOT BE GRANTED TO SOME LITIGANTS AND CAPRICIOUSLY OR ARBITRARILY
DENIED TO OTHERS WITHOUT VIOLATING THE EQUAL PROTECTION CLAUSE. 
GRIFFIN V. ILLINOIS, SUPRA; SMITH V. BENNETT, 365 U.S. 708 (1961); LANE
V. BROWN, 372 U.S. 477 (1963); LONG V. DISTRICT COURT OF IOWA, 385 U.S.
192 (1966); GARDNER V. CALIFORNIA, 393 U.S. 367 (1969).  CF. COPPEDGE
V. UNITED STATES, 369 U.S. 438 (1962); ELLIS V. UNITED STATES, 356 U.S.
674 (1958). 

IT CANNOT BE DENIED THAT THE DOUBLE-BOND REQUIREMENT HEAVILY BURDENS
THE STATUTORY RIGHT OF AN FED DEFENDANT TO APPEAL.  WHILE A STATE MAY
PROPERLY TAKE STEPS TO INSURE THAT AN APPELLANT POST ADEQUATE SECURITY
BEFORE AN APPEAL TO PRESERVE THE PROPERTY AT ISSUE, TO GUARD A DAMAGE
AWARD ALREADY MADE, OR TO INSURE A LANDLORD AGAINST LOSS OF RENT IF THE
TENANT REMAINS IN POSSESSION, THE DOUBLE-BOND REQUIREMENT HERE DOES NOT
EFFECTUATE THESE PURPOSES SINCE IT IS UNRELATED TO ACTUAL RENT ACCRUED
OR TO SPECIFIC DAMAGE SUSTAINED BY THE LANDLORD.  THIS REQUIREMENT IS
UNNECESSARY TO ASSURE THE LANDLORD PAYMENT OF ACCRUED RENT SINCE THE
UNDERTAKING AN FED DEFENDANT MUST FILE PURSUANT TO THE GENERAL APPEAL
BOND STATUTE, ORS SEC. 19.040(B), MUST COVER "THE VALUE OF THE USE AND
OCCUPATION OF SUCH PROPERTY . . . FROM THE TIME OF THE APPEAL UNTIL THE
DELIVERY OF THE POSSESSION THEREOF," AND SINCE THE LANDLORD MAY BRING A
SEPARATE ACTION AT LAW FOR PAYMENT OF BACK RENT UNDER ORS SEC. 91.220. 
/25/  MOREOVER, THE LANDLORD IS PROTECTED AGAINST WASTE OR DAMAGES
OCCURRING DURING THE APPEAL BY THE SEC. 19.040(B) UNDERTAKING THAT THE
TENANT MUST FILE IF HE WISHES TO REMAIN IN POSSESSION OF THE PROPERTY
DURING THE APPEAL.  THE CLAIM THAT THE DOUBLE-BOND REQUIREMENT OPERATES
TO SCREEN OUT FRIVOLOUS APPEALS IS UNPERSUASIVE, FOR IT NOT ONLY BARS
NONFRIVOLOUS APPEALS BY THOSE WHO ARE UNABLE TO POST THE BOND BUT ALSO
ALLOWS MERITLESS APPEALS BY OTHERS WHO CAN AFFORD THE BOND.  THE IMPACT
ON FED APPELLANTS IS UNAVOIDABLE:  IF THE LOWER COURT DECISION IS
AFFIRMED, THE ENTIRE DOUBLE BOND IS FORFEITED; RECOVERY IS NOT LIMITED
TO COSTS INCURRED BY THE APPELLEE, RENT OWED, OR DAMAGE SUFFERED.  NO
OTHER APPELLANT IS SUBJECT TO AUTOMATIC ASSESSMENT OF UNPROVED
DAMAGES.  WE DISCERN NOTHING IN THE SPECIAL PURPOSES OF THE FED STATUTE
OR IN THE SPECIAL CHARACTERISTICS OF THE LANDLORD-TENANT RELATIONSHIP
TO WARRANT THIS DISCRIMINATION. 

WE DO NOT QUESTION HERE REASONABLE PROCEDURAL PROVISIONS TO
SAFEGUARD LITIGATED PROPERTY, CF. NATIONAL UNION OF MARINE COOKS &
STEWARDS V. ARNOLD, 348 U.S. 37 (1954), OR TO DISCOURAGE PATENTLY
INSUBSTANTIAL APPEALS, IF THESE RULES ARE REASONABLY TAILORED TO
ACHIEVE THESE ENDS AND IF THEY ARE UNIFORMLY AND NONDISCRIMINATORILY
APPLIED.  MOREOVER, A STATE HAS BROAD AUTHORITY TO PROVIDE FOR THE
RECOVERY OF DOUBLE OR TREBLE DAMAGES IN CASES OF ILLEGAL CONDUCT THAT
IT REGARDS AS PARTICULARLY REPREHENSIBLE, EVEN THOUGH POSTING AN APPEAL
BOND BY AN APPELLANT WILL BE DOUBLY OR TRIPLY MORE DIFFICULT THAN IT
OTHERWISE WOULD BE.  IN THE CASE BEFORE US, HOWEVER, THE STATE HAS NOT
SOUGHT TO PROTECT A DAMAGE AWARD OR PROPERTY AN APPELLEE IS RIGHTFULLY
ENTITLED TO BECAUSE OF A LOWER COURT JUDGMENT.  /26/  INSTEAD, IT HAS
AUTOMATICALLY DOUBLED THE STAKES WHEN A TENANT SEEKS TO APPEAL AN
ADVERSE JUDGMENT IN AN FED ACTION.  THE DISCRIMINATION AGAINST THE
POOR, WHO COULD PAY THEIR RENT PENDING AN APPEAL BUT CANNOT POST THE
DOUBLE BOND, IS PARTICULARLY OBVIOUS.  FOR THEM, AS A PRACTICAL MATTER,
APPEAL IS FORECLOSED, NO MATTER HOW MERITORIOUS THEIR CASE MAY BE.  THE
NONINDIGENT FED APPELLANT ALSO IS CONFRONTED BY A SUBSTANTIAL BARRIER
TO APPEAL FACED BY NO OTHER CIVIL LITIGANT IN OREGON.  THE
DISCRIMINATION AGAINST THE CLASS OF FED APPELLANTS IS ARBITRARY AND
IRRATIONAL, AND THE DOUBLE-BOND REQUIREMENT OF ORS SEC. 105.160
VIOLATES THE EQUAL PROTECTION CLAUSE. 

THE JUDGMENT OF THE DISTRICT COURT IS

AFFIRMED IN PART AND REVERSED IN PART. 

/1/  THE ORIGINAL COMPLAINT WAS FILED ON BEHALF OF DONALD AND EDNA
LINDSEY, SEVEN OTHER NAMED PLAINTIFFS (ONE OF WHOM WAS AN INTERVENOR),
AND ALL OTHER PERSONS SIMILARLY SITUATED.  PERMISSION TO MAINTAIN THE
SUIT AS A CLASS ACTION WAS GRANTED, APP. 33, BUT THE CLASS WAS NOT
FURTHER DEFINED.  THE OTHER NAMED PLAINTIFFS RAISED CLAIMS ESSENTIALLY
SIMILAR TO THE LINDSEYS, WHO WERE THE ONLY TWO PLAINTIFFS TO APPEAL AND
WHO ARE HEREAFTER TERMED "APPELLANTS."  APPELLEE NORMET WAS THE OWNER
OF THE SELLER'S INTEREST IN THE PROPERTY RENTED TO THE APPELLANTS AND
HELD THE LEGAL TITLE TO SECURE THE PURCHASER'S PERFORMANCE OF THE
CONTRACT OF SALE.  AN ASSIGNEE OF THE PURCHASER'S INTEREST IN THE
CONTRACT HAD RENTED THE RESIDENCE TO APPELLANTS.  THE TRIAL COURT
FOUND, HOWEVER, THAT THERE WAS A LANDLORD-TENANT RELATIONSHIP BETWEEN
APPELLEE AND APPELLANTS AT THE TIME THE SUIT WAS FILED.  APP. 71. 

/2/  IT WAS STIPULATED THAT CITY INSPECTORS FOUND RUSTED GUTTERS,
BROKEN WINDOWS, BROKEN PLASTER, MISSING REAR STEPS, AND IMPROPER
SANITATION, ALL IN VIOLATION OF THE PORTLAND HOUSING CODE, AND THAT THE
INSPECTORS POSTED A NOTICE THAT THE DWELLING WAS REQUIRED TO BE VACATED
WITHIN 30 DAYS UNLESS THE OWNER COULD SHOW CAUSE WHY THE BUILDING
SHOULD NOT BE DECLARED UNFIT FOR OCCUPANCY.  APP. 43. 

/3/  IN ITS ENTIRETY, THE OREGON FORCIBLE ENTRY AND WRONGFUL
DETAINER STATUTE PROVIDES:

        "FORCIBLE ENTRY AND WRONGFUL DETAINER 

"105.105 ENTRY TO BE LAWFUL AND PEACEABLE ONLY.  NO PERSON SHALL
ENTER UPON ANY LAND, TENEMENT OR OTHER REAL PROPERTY UNLESS THE RIGHT
OF ENTRY IS GIVEN BY LAW.  WHEN THE RIGHT OF ENTRY IS GIVEN BY LAW THE
ENTRY SHALL BE MADE IN A PEACEABLE MANNER AND WITHOUT FORCE. 
"105.110 ACTION FOR FORCIBLE ENTRY OR WRONGFUL DETAINER.  WHEN A
FORCIBLE ENTRY IS MADE UPON ANY PREMISES, OR WHEN AN ENTRY IS MADE IN A
PEACEABLE MANNER AND POSSESSION IS HELD BY FORCE, THE PERSON ENTITLED
TO THE PREMISES MAY MAINTAIN IN THE COUNTY WHERE THE PROPERTY IS
SITUATED AN ACTION TO RECOVER THE POSSESSION THEREOF IN THE CIRCUIT
COURT, DISTRICT COURT OR BEFORE ANY JUSTICE OF THE PEACE OF THE
COUNTY. 

"105.115 CAUSES OF UNLAWFUL HOLDING BY FORCE.  THE FOLLOWING ARE
CAUSES OF UNLAWFUL HOLDING BY FORCE WITHIN THE MEANING OF ORS 105.110
AND 105.125:     "(1) WHEN THE TENANT OR PERSON IN POSSESSION OF ANY
PREMISES FAILS OR REFUSES TO PAY RENT WITHIN 10 DAYS AFTER IT IS DUE
UNDER THE LEASE OR AGREEMENT UNDER WHICH HE HOLDS, OR TO DELIVER
POSSESSION OF THE PREMISES AFTER BEING IN DEFAULT ON PAYMENT OF RENT
FOR 10 DAYS. 

"(2) WHEN THE LEASE BY ITS TERMS HAS EXPIRED AND HAS NOT BEEN
RENEWED, OR WHEN THE TENANT OR PERSON IN POSSESSION IS HOLDING FROM
MONTH TO MONTH, OR YEAR TO YEAR, AND REMAINS IN POSSESSION AFTER NOTICE
TO QUIT AS PROVIDED IN ORS 105.120, OR IS HOLDING CONTRARY TO ANY
CONDITION OR COVENANT OF THE LEASE OR IS HOLDING POSSESSION WITHOUT ANY
WRITTEN LEASE OR AGREEMENT. 

"105.120 NOTICE NECESSARY TO MAINTAIN ACTION IN CERTAIN CASES;
WAIVER OF NOTICE; EFFECT OF ADVANCE PAYMENTS OF RENT.  (1) AN ACTION
FOR THE RECOVERY OF THE POSSESSION OF THE PREMISES MAY BE MAINTAINED IN
CASES PROVIDED IN SUBSECTION (2) OF ORS 105.115, WHEN THE NOTICE TO
TERMINATE THE TENANCY OR TO QUIT HAS BEEN SERVED UPON THE TENANT OR
PERSON IN POSSESSION IN THE MANNER PRESCRIBED BY ORS 91.110 AND FOR THE
PERIOD PRESCRIBED BY ORS 91.060 TO 91.080 BEFORE THE COMMENCEMENT OF
THE ACTION, UNLESS THE LEASING OR OCCUPATION IS FOR THE PURPOSE OF
FARMING OR AGRICULTURE, IN WHICH CASE SUCH NOTICE MUST BE SERVED FOR A
PERIOD OF 90 DAYS BEFORE THE COMMENCEMENT OF THE ACTION. 

"(2) ANY PERSON ENTERING INTO THE POSSESSION OF REAL ESTATE UNDER
WRITTEN LEASE AS THE TENANT OF ANOTHER MAY, BY THE TERMS OF HIS LEASE,
WAIVE THE GIVING OF ANY NOTICE REQUIRED BY THIS SECTION. 

"(3) THE SERVICE OF A NOTICE TO QUIT UPON A TENANT OR PERSON IN
POSSESSION DOES NOT AUTHORIZE AN ACTION TO BE MAINTAINED AGAINST HIM
FOR THE POSSESSION OF PREMISES BEFORE THE EXPIRATION OF ANY PERIOD FOR
WHICH THE TENANT OR PERSON HAS PAID THE RENT OF THE PREMISES IN
ADVANCE. 

"105.125 COMPLAINT.  IN AN ACTION PURSUANT TO ORS 105.110 IT IS
SUFFICIENT TO STATE IN THE COMPLAINT: 

"(1) A DESCRIPTION OF THE PREMISES WITH CONVENIENT CERTAINTY; 

"(2) THAT THE DEFENDANT IS IN POSSESSION OF THE PREMISES; 

"(3) THAT HE ENTERED UPON THE PREMISES WITH FORCE OR UNLAWFULLY
HOLDS THE PREMISES WITH FORCE; AND 

"(4) THAT THE PLAINTIFF IS ENTITLED TO THE POSSESSION OF THE
PREMISES. 

"105.130 HOW ACTION CONDUCTED.  EXCEPT AS PROVIDED IN ORS 105.135 TO
105.160, AN ACTION PURSUANT TO ORS 105.110 SHALL BE CONDUCTED IN ALL
RESPECTS AS OTHER ACTIONS IN COURTS OF THIS STATE. 

"105.135 SERVICE AND RETURN OF SUMMONS.  THE SUMMONS SHALL BE SERVED
AND RETURNED AS IN OTHER ACTIONS.  THE SERVICE SHALL BE NOT LESS THAN
TWO OR MORE THAN FOUR DAYS BEFORE THE DAY OF THE TRIAL APPOINTED BY THE
COURT. 

"105.140 CONTINUANCE.  NO CONTINUANCE SHALL BE GRANTED FOR A LONGER
PERIOD THAN TWO DAYS UNLESS THE DEFENDANT APPLYING THEREFOR GIVES AN
UNDERTAKING TO THE ADVERSE PARTY WITH GOOD AND SUFFICIENT SECURITY, TO
BE APPROVED BY THE COURT, CONDITIONED FOR THE PAYMENT OF THE RENT THAT
MAY ACCRUE IF JUDGMENT IS RENDERED AGAINST THE DEFENDANT. 

"105.145 JUDGMENT ON TRIAL BY COURT.  IF THE ACTION IS TRIED BY THE
COURT WITHOUT A JURY, AND AFTER HEARING THE EVIDENCE IT CONCLUDES THAT
THE COMPLAINT IS NOT TRUE, IT SHALL ENTER JUDGMENT AGAINST THE
PLAINTIFF FOR COSTS AND DISBURSEMENTS.  IF THE COURT FINDS THE
COMPLAINT TRUE OR IF JUDGMENT IS RENDERED BY DEFAULT, IT SHALL RENDER A
GENERAL JUDGMENT AGAINST THE DEFENDANT AND IN FAVOR OF THE PLAINTIFF,
FOR RESTITUTION OF THE PREMISES AND THE COSTS AND DISBURSEMENTS OF THE
ACTION.  IF THE COURT FINDS THE COMPLAINT TRUE IN PART, IT SHALL RENDER
JUDGMENT FOR RESTITUTION OF SUCH PART ONLY, AND THE COSTS AND
DISBURSEMENTS SHALL BE TAXED AS THE COURT DEEMS JUST AND EQUITABLE. 

"105.150 VERDICT AND JUDGMENT ON TRIAL BY JURY.  IF THE ACTION IS
TRIED BY A JURY AND THEY FIND THE COMPLAINT TRUE, THEY SHALL RENDER A
GENERAL VERDICT OF GUILTY AGAINST THE DEFENDANT; IF NOT TRUE, THEY
SHALL RENDER A GENERAL VERDICT OF NOT GUILTY; IF TRUE IN PART, THEY
SHALL RENDER A VERDICT SETTING FORTH THE FACTS THEY FIND, AND THE COURT
SHALL RENDER JUDGMENT ACCORDING TO THE VERDICT. 

"105.155 FORM OF EXECUTION.  THE EXECUTION, SHOULD JUDGMENT OF
RESTITUTION BY RENDERED, MAY BE IN THE FOLLOWING FORM: 

STATE OF OREGON,SS. 

COUNTY OF . . . SS. 

TO THE SHERIFF OR ANY CONSTABLE OF THE COUNTY: 

WHEREAS, A CERTAIN ACTION FOR THE FORCIBLE ENTRY AND DETENTION, (OR
THE FORCIBLE DETENTION) OF THE FOLLOWING DESCRIBED PREMISES, TO WRIT:
. . . , LATELY TRIED BEFORE THE ABOVE ENTITLED COURT, WHEREIN . . . WAS
PLAINTIFF AND . . . WAS DEFENDANT, JUDGMENT WAS RENDERED ON THE . . .
DAY OF . . . , A.D., . . . , THAT THE PLAINTIFF . . . HAVE RESTITUTION
OF THE PREMISES, AND ALSO THAT HE RECOVER THE COSTS AND DISBURSEMENTS
IN THE SUM OF $ . . .; 

IN THE NAME OF THE STATE OF OREGON, YOU ARE, THEREFORE, HEREBY
COMMANDED TO CAUSE THE DEFENDANT AND HIS GOODS AND CHATTELS TO BE
FORTHWITH REMOVED FROM THE PREMISES AND THE PLAINTIFF IS TO HAVE
RESTITUTION OF THE SAME.  IN THE EVENT THE GOODS AND CHATTELS ARE NOT
PROMPTLY REMOVED THEREAFTER BY THE DEFENDANT YOU ARE AUTHORIZED AND
EMPOWERED TO CAUSE THE SAME TO BE REMOVED TO A SAFE PLACE FOR STORAGE. 
YOU ARE ALSO COMMANDED TO LEVY ON THE GOODS AND CHATTELS OF THE
DEFENDANT, AND MAKE THE COSTS AND DISBURSEMENTS, AFORESAID, AND ALL
ACCRUING COSTS, AND TO MAKE LEGAL SERVICE AND DUE RETURN OF THIS WRIT. 

WITNESS MY HAND AND OFFICIAL SEAL (IF ISSUED OUT OF A COURT OF
RECORD) THIS . . . DAY OF . . . , A.D., . . . .

   .          .          .          .

              JUSTICE OF THE PEACE, OR CLERK

              OF THE DISTRICT OR CIRCUIT COURT. 

"105.160 ADDITIONAL UNDERTAKING ON APPEAL.  IF JUDGMENT IS RENDERED
AGAINST THE DEFENDANT FOR THE RESTITUTION OF THE REAL PROPERTY
DESCRIBED IN THE COMPLAINT, OR ANY PART THEREOF, NO APPEAL SHALL BE
TAKEN BY THE DEFENDANT FROM THE JUDGMENT UNTIL HE GIVES, IN ADDITION TO
THE UNDERTAKING NOW REQUIRED BY LAW UPON APPEAL, AND UNDERTAKING TO THE
ADVERSE PARTY, WITH TWO SURETIES, WHO SHALL JUSTIFY IN LIKE MANNER AS
BAIL UPON ARREST, FOR THE PAYMENT TO THE PLAINTIFF IF THE JUDGMENT IS
AFFIRMED ON APPEAL OF TWICE THE RENTAL VALUE OF THE REAL PROPERTY OF
WHICH RESTITUTION IS ADJUDGED FROM THE COMMENCEMENT OF THE ACTION IN
WHICH THE JUDGMENT WAS RENDERED UNTIL FINAL JUDGMENT IN THE ACTION." 

/4/  CIV. NO. 70-8, SEPT. 10, 1970, D. ORE.  (UNREPORTED). 
REPRINTED AT APP. 72. 

/5/  THE DISTRICT COURT CORRECTLY DECLINED TO ABSTAIN FROM
CONSIDERING THE CONSTITUTIONALITY OF THE FED STATUTE SINCE:  "THE
CHALLENGED STATUTE IS CLEAR.  IT IS UNLIKELY THAT AN APPLICATION OF
STATE LAW WOULD CHANGE THE POSTURE OF THE FEDERAL CONSTITUTIONAL
ISSUES.  NO STATE ADMINISTRATIVE PROCESS IS INVOLVED.  THE CASE HAS
BEEN THOROUGHLY BRIEFED AND ARGUED ON THE MERITS, AND IS PRESENTED ON A
CLEAR AND COMPLETE RECORD."  APP. 73.  SINCE THE JUDICIALLY CREATED
DOCTRINE OF ABSTENTION INVOLVES DUPLICATION OF EFFORT AND EXPENSE AND
AN ATTENDANT DELAY, SEE ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL
EXAMINERS, 375 U.S. 411, 418 (1964), THIS COURT HAS EMPHASIZED THAT IT
SHOULD BE APPLIED ONLY "WHERE THE ISSUE OF STATE LAW IS UNCERTAIN,"
HARMAN V. FORSSENIUS, 380 U.S. 528, 534 (1965), AND "ONLY IN NARROWLY
LIMITED 'SPECIAL CIRCUMSTANCES,'" ZWICKLER V. KOOTA, 389 U.S. 241, 248
(1967) (CITING PROPPER V. CLARK, 337 U.S. 472, 492 (1949)).  SEE REETZ
V. BOZANICH, 397 U.S. 82 (1970).  THE OREGON FED STATUTE HAD BEEN IN
EFFECT FOR OVER 100 YEARS, AND THERE IS A SUBSTANTIAL BODY OF
INTERPRETATIVE DECISIONS BY THE OREGON COURTS. 

/6/  402 U.S. 941 (1971). 

/7/  IF THE FED ACTION IS INITIATED IN THE DISTRICT COURT INSTEAD OF
THE CIRCUIT COURT, THE DOUBLE BOND IS REQUIRED FOR A TRIAL DE NOVO IN
THE CIRCUIT COURT.  ORS SECS. 46.250, 53.090.  APPELLANTS DO NOT,
HOWEVER, CONTEND THAT THERE IS ANYTHING UNCONSTITUTIONAL ABOUT THE
DISTRICT COURT TRIAL, EXCEPT FOR THE CLAIMS NOTED ABOVE, AND THEY DO
NOT CONTEND THAT THE DUAL LEVEL TRIAL SYSTEM ITSELF VIOLATES THEIR
CONSTITUTIONAL RIGHTS.  BRIEF FOR APPELLANTS 63. 

/8/  APPELLANTS MAKE A CONCLUSORY ARGUMENT THAT ALLOWING A LANDLORD
TO ALLEGE THAT THE TENANT IS GUILTY OF "UNLAWFUL HOLDING BY FORCE" IS
IMPERMISSIBLE ON GROUNDS OF VAGUENESS.  BRIEF FOR APPELLANTS 58-59. 
ORS SEC. 105.115 ADEQUATELY DEFINES THIS TERM, HOWEVER, SEE N. 3,
SUPRA, AND THE DISTRICT COURT PROPERLY REJECTED THIS ARGUMENT. 

/9/  UNITED STATES V. NATIONAL DAIRY CORP., 372 U.S. 29, 32 (1963);
UNITED STATES V. RAINES, 362 U.S. 17, 22 (1960). 

/10/  ORS SEC. 16.220(1)(I) PROVIDES THAT WHEN A PLAINTIFF JOINS AN
FED ACTION WITH AN ACTION FOR RENTAL DUE, "THE DEFENDANT SHALL HAVE THE
SAME TIME TO ANSWER, OR OTHERWISE PLEAD, AS IS NOW PROVIDED BY LAW IN
ACTIONS FOR THE RECOVERY OF RENTAL DUE."  ORS SEC. 91.220 PROVIDES THAT
ACCRUED RENT MAY BE RECOVERED IN AN "ACTION AT LAW" WHICH IS SUBJECT TO
THE GENERAL RULES OF PLEADING AND PROCEDURE ENUMERATED IN SEC. 16.010
AND NOT THE SPECIAL FED PROCEDURES. 

/11/  OREGON ALSO RECOGNIZES CERTAIN EQUITABLE DEFENSES IN FED
ACTIONS, SEE LEATHERS V. PETERSON, 195 ORE.  62, 244 P.2D 619 (1952)
(MENTAL INCOMPETENCE); CROSSEN V. CAMPBELL, 102 ORE.  666, 202 P. 745
(1921) (FORFEITURE OF LEASE); FRIEDENTHAL V. THOMPSON, 146 ORE.  640,
31 P.2D 643 (1934) (REFORMATION OF LEASE); MENEFEE LUMBER CO. V.
ABRAMS, 138 ORE.  263, 5 P.2D 709 (1931) (LESSOR'S BREACH OF DEPENDENT
COVENANT NOT TO RENT ANOTHER PART OF PREMISES TO BUSINESS COMPETITIVE
WITH LESSEE-- TRIED BY STIPULATION), AND ORS SEC. 16.460 PROVIDES THAT
WHEN AN EQUITABLE MATTER IS INTERPOSED, THE FED ACTION WILL BE STAYED
UNTIL THE EQUITABLE MATTERS ARE DETERMINED.  APPARENTLY, HOWEVER, THE
DEFENSES SOUGHT TO BE RAISED BY APPELLANTS ARE NOT IN THIS CATEGORY. 

/12/  THIS CLAIM IS EXPLICITLY PRESENTED IN THE COMPLAINT:  "FOR
THEIR CAUSE OF ACTION, SAID PLAINTIFFS SET FORTH THE FOLLOWING:  . . .
(C) THAT SAID DEFENDANT-LANDLORDS HAVE A DUTY TO REFRAIN FROM TAKING
RETALIATORY MEASURES AGAINST SAID PLAINTIFFS AS A RESULT OF THIS ACTION
OR AS A RESULT OF REPORTING HOUSING CODE VIOLATIONS OR AS A RESULT OF
PLAINTIFFS WITHHOLDING RENT TO COMPEL THE DEFENDANT-LANDLORDS TO REPAIR
THE PREMISES."  APP. 24.  APPELLANTS STIPULATED THAT, IF PERMITTED,
THEY WOULD RAISE VARIOUS LEGAL AND EQUITABLE DEFENSES
(UNCONSTITUTIONALITY OF THE PROCEEDING, ILLEGALITY OF CONTRACT, FAILURE
OF CONSIDERATION, WARRANTY OF FITNESS OF HABITABILITY, UNCLEAN HANDS OF
LANDLORD) IF AN FED ACTION WERE BROUGHT AGAINST THEM.  APP. 44.  IT IS
SUFFICIENTLY CLEAR FROM THE DISTRICT COURT'S PRETRIAL ORDER THAT ALL OF
THE PARTIES, INCLUDING THE DEFENDANT STATE COURT JUDGE, AGREED THAT THE
DEFENSES APPELLANTS DESIRED TO PRESS WERE UNAVAILABLE IN OREGON FED
ACTIONS.  THE DISTRICT COURT AGREED THAT THIS ACCURATELY REFLECTED
OREGON LAW.  IN THESE CIRCUMSTANCES, THEREFORE, THERE WAS NO REASON FOR
THE DISTRICT COURT TO ABSTAIN.  SEE N. 5, SUPRA. 

/13/  AT ORAL ARGUMENT, APPELLANTS CONCEDED THAT IF A TENANT
REMAINED IN POSSESSION WITHOUT PAYING RENT, A LANDLORD MIGHT BE
DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW: 

"Q:  IF YOU DIDN'T HAVE THAT DEPOSIT IN ESCROW (RENT PAID BY TENANTS
DURING LITIGATION), MIGHT YOU NOT BE CONFRONTED WITH A COUNTER
SUGGESTION THAT THIS IS A TAKING OF PROPERTY WITHOUT DUE PROCESS,
WITHOUT COMPENSATION? 

"MR. CLOUGH:  OF COURSE; THAT IS CORRECT. 

"Q:  BUT YOU WOULD ACCEPT THAT AS AN INVARIABLE CONDITION TO
MAINTAINING POSSESSION? 

"MR. CLOUGH:  YES, WE'D HAVE NO PROBLEM WITH THAT."  TR. OF ORAL
ARG. 14. 

/14/  "IT WOULD BE A SURPRISING EXTENSION OF THE FOURTEENTH
AMENDMENT IF IT WERE HELD TO PROHIBIT THE CONTINUANCE OF ONE OF THE
MOST UNIVERSAL AND BEST KNOWN DISTINCTIONS OF THE MEDIAEVAL LAW.  FROM
THE EXCEPTIO SPOLII OF THE PSEUDO-ISIDORE THE CANON LAW AND BRACTON TO
THE ASSIZE OF NOVEL DISSEISIN THE PRINCIPLE WAS OF VERY WIDE
APPLICATION THAT A WRONGFUL DISTURBANCE OF POSSESSION MUST BE RIGHTED
BEFORE A CLAIM OF TITLE WOULD BE LISTENED TO-- OR AT LEAST THAT IN A
PROCEEDING TO RIGHT SUCH DISTURBANCE A CLAIM OF TITLE COULD NOT BE SET
UP; AND FROM KANT TO IHERING THERE HAS BEEN MUCH PHILOSOPHISING AS TO
THE GROUNDS.  BUT IT IS UNNECESSARY TO FOLLOW THE SPECULATIONS OR TO
CONSIDER WHETHER THE PRINCIPLE IS ETERNAL OR A NO LONGER USEFUL
SURVIVAL.  THE CONSTITUTIONALITY OF THE LAW IS INDEPENDENT OF OUR VIEWS
UPON SUCH POINTS."  GRANT TIMBER & MFG. CO. V. GRAY, 236 U.S. 133, 134
(1915). 

/15/  FOR VARIOUS TENANT REMEDIES FOR HOUSING CODE VIOLATIONS, SEE
N.Y. REAL PROP.  ACTIONS LAW SECS. 769-782 (SUPP. 1971-1972); BROWN V.
SOUTHALL REALTY CO., 237 A.2D 834 (D.C. CT. APP. 1968); S.D. COMP. LAWS
ANN. SEC. 43-32-9 (1967).  FOR RECOGNITION OF AN IMPLIED WARRANTY OF
HABITABILITY, SEE PINES V. PERSSION, 14 WIS.2D 590, 111 N.W.2D 409
(1961); EARL MILLIKIN, INC. V. ALLEN, 21 WIS.2D 497, 124 N.W.2D 651
(1963); CAL. CIV. CODE SEC. 1941 (1954 AND SUPP. 1971).  FOR
PROHIBITIONS AGAINST VARIOUS KINDS OF RETALIATORY EVICTIONS, SEE ILL.
REV. STAT., C. 80, SEC. 71 (1971); MICH . COMP. LAWS SEC. 564.204,
ADDED BY PUB. ACTS 1968, C. 2, MICH. STAT. ANN. SEC. 26.1300 (204)
(1970); EDWARDS V. HABIB, 130 U.S.APP.D.C. 126, 397 F.2D 687 (1968),
CERT. DENIED, 393 U.S. 1016 (1969); UNITED STATES V. BRUCE, 353 F.2D
474 (CA5 1965); UNITED STATES V. BEATY, 288 F.2D 653 (CA6 1961). 
/16/  N.Y. MULT.  RESID.  LAW SEC. 305-A (SUPP. 1971-1972); ILL. REV.
STAT., C. 23, SEC. 11-23 (1971); MASS. GEN. LAWS ANN., C. 239, SEC. 8A
(SUPP. 1971); PA. STAT. ANN., TIT. 35, SEC. 1700-1 (SUPP. 1971).  SEE
GENERALLY COMMENT, RENT WITHHOLDING AND THE IMPROVEMENT OF SUBSTANDARD
HOUSING, 53 CALIF.L.REV.  304 (1965). 

/17/  AN FED DEFENDANT HAS FROM TWO TO SIX DAYS BETWEEN THE SERVING
OF THE COMPLAINT AND TRIAL UNLESS HE FILES A CONTINUANCE BOND.  SEE
SECS. 105.135, 105.140, N. 3, SUPRA.   /18/  THE STATUTE ITSELF
DECLARES THE PUBLIC POLICY OF THE STATE OF OREGON TO BE THAT:  "NO
PERSON SHALL ENTER UPON ANY LAND, TENEMENT OR OTHER REAL PROPERTY
UNLESS THE RIGHT OF ENTRY IS GIVEN BY LAW.  WHEN THE RIGHT OF ENTRY IS
GIVEN BY LAW THE ENTRY SHALL BE MADE IN A PEACEABLE MANNER AND WITHOUT
FORCE."  SEC. 105.105.  ONE OUT OF ACTUAL POSSESSION, IS LIABLE
CRIMINALLY FOR ASSAULT AND BATTERY IF, INSTEAD OF FILING AN FED ACTION,
HE ACCOMPLISHES AN ENTRY UPON SUCH REAL PROPERTY BY THE EXERTION OF
FORCE AGAINST THE PERSON OF AN ACTUAL OCCUPANT WHO OPPOSES AND RESISTS
SUCH ENTRY.  COGHLAN V. MILLER, 106 ORE.  46, 54-56, 211 P. 163, 166
167 (1922). 

/19/  A. CASNER & W. LEACH, CASES AND TEXT ON PROPERTY 451 (2ND ED.
1969). 

/20/  SEE ANNOT., RIGHT OF LANDLORD TO DISPOSSESS TENANT WITHOUT
LEGAL PROCESS, 45 A.L.R. 313 (1926), 49 A.L.R. 517 (1927), 60 A.L.R.
280 (1929), 101 A.L.R. 476 (1936), 6 A.L.R.3D 177 (1966). 

/21/ MCLAUGHLIN V. FLORIDA, 379 U.S. 184 (1964); LOVING V. VIRGINIA,
388 U.S. 1 (1967). 

/22/  KOREMATSU V. UNITED STATES, 323 U.S. 214 (1944); TAKAHASHI V.
FISH & GAME COMM'N, 334 U.S. 410 (1948); OYAMA V. CALIFORNIA, 332 U.S.
633 (1948); LEVY V. LOUISIANA, 391 U.S. 68 (1968); GLONA V. AMERICAN
GUARANTEE & LIABILITY INSURANCE CO., 391 U.S. 73 (1968). 

/23/  SHAPIRO V. THOMPSON, 394 U.S. 618, 634 (1969) (RIGHT TO
TRAVEL).  SEE ALSO HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663,
668 (1966) (RIGHT TO VOTE).  CF. SKINNER V. OKLAHOMA EX REL.
WILLIAMSON, 316 U.S. 535, 541 (1942). 

/24/  THE OREGON CIVIL APPEAL BOND STATUTE PROVIDES: 

"19.040 FORM OF UNDERTAKING ON APPEAL; CONDITIONS FOR STAY OF
PROCEEDINGS; ENFORCEMENT AGAINST SURETIES ON DISMISSAL OF APPEAL.  (1)
THE UNDERTAKING OF THE APPELLANT SHALL BE GIVEN WITH ONE OR MORE
SURETIES, TO THE EFFECT THAT THE APPELLANT WILL PAY ALL DAMAGES, COSTS
AND DISBURSEMENTS WHICH MAY BE AWARDED AGAINST HIM ON THE APPEAL; BUT
SUCH UNDERTAKING DOES NOT STAY THE PROCEEDINGS, UNLESS THE UNDERTAKING
FURTHER PROVIDES TO THE EFFECT FOLLOWING:

        .          .      .          . 

"(B) IF THE JUDGMENT OR DECREE APPEALED FROM IS FOR THE RECOVERY OF
THE POSSESSION OF REAL PROPERTY, FOR A PARTITION THEREOF, OR THE
FORCLOSURE OF A LIEN THEREON, THAT DURING THE POSSESSION OF SUCH
PROPERTY BY THE APPELLANT HE WILL NOT COMMIT, OR SUFFER TO BE
COMMITTED, ANY WASTE THEREON, AND THAT IF SUCH JUDGMENT OR DECREE OR
ANY PART THEREOF IS AFFIRMED, THE APPELLANT WILL PAY THE VALUE OF THE
USE AND OCCUPATION OF SUCH PROPERTY, SO FAR AS AFFIRMED, FROM THE TIME
OF THE APPEAL UNTIL THE DELIVERY OF THE POSSESSION THEREOF, NOT
EXCEEDING THE SUM THEREIN SPECIFIED, TO BE ASCERTAINED AND TRIED BY THE
COURT OR JUDGE THEREOF. 

        .          .          .        . 

"(2) WHEN THE DECREE APPEALED FROM REQUIRES THE EXECUTION OF A
CONVEYANCE OR OTHER INSTRUMENT, EXECUTION OF THE DECREE IS NOT STAYED
BY THE APPEAL, UNLESS THE INSTRUMENT IS EXECUTED AND DEPOSITED WITH THE
CLERK WITHIN THE TIME ALLOWED TO FILE THE UNDERTAKING, TO ABIDE THE
DECREE OF THE APPELLATE COURT. 

"(3) IF THE APPEAL IS DISMISSED, THE JUDGMENT OR DECREE, SO FAR AS
IT IS FOR THE RECOVERY OF MONEY, MAY, BY THE APPELLATE COURT, BE
ENFORCED AGAINST THE SURETIES IN THE UNDERTAKING FOR A STAY OF
PROCEEDINGS, AS IF THEY WERE PARTIES TO THE JUDGMENT OR DECREE." 

AN FED ACTION MAY BE BROUGHT IN THE CIRCUIT COURT, THE DISTRICT
COURT, OR BEFORE A JUSTICE OF THE PEACE.  ORS SEC. 19.040 BY ITS TERMS
APPLIES TO APPEALS FROM THE CIRCUIT COURT TO THE COURT OF APPEALS AND
TO THE SUPREME COURT, BUT IF THE FED ACTION IS INITIATED IN A DISTRICT
COURT OR A JUSTICE'S COURT, ORS SEC. 53.040 REQUIRES THAT AN APPELLANT
TO THE CIRCUIT COURT GIVE AN UNDERTAKING WITH ONE OR MORE SURETIES THAT
HE WILL PAY "ALL COSTS AND DISBURSEMENTS THAT MAY BE AWARDED AGAINST
HIM ON APPEAL." 

/25/  THE SEC. 19.040(B) UNDERTAKING DOES NOT, IT IS TRUE, COVER ANY
RENT THAT HAS ACCRUED FROM THE TIME THE FED ACTION IS FILED UNTIL THE
TIME THE APPEAL IS TAKEN.  HOWEVER, THE SEC. 105.145 CONTINUANCE BOND
FILED BY THE TENANT IF THE PRETRIAL DELAY IS OVER SIX DAYS PROVIDES
SECURITY FOR THIS RENT, OR SUCH RENT MAY BE RECOVERED AS BACK RENT IN
THE SEC. 91.220 ACTION AT LAW. 

/26/  COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541 (1949), IS
DISTINGUISHABLE FROM THE INSTANT CASE.  THERE, THE COURT UPHELD A STATE
LAW THAT REQUIRED A SHAREHOLDER WHO WISHED TO FILE A SHAREHOLDER'S
DERIVATIVE SUIT BUT WHO OWNED LESS THAN 5% OF THE CORPORATION'S STOCK
OR WHOSE STOCK WAS WORTH LESS THAN $50,000 TO FILE AS A PRECONDITION TO
BRINGING THE SUIT A BOND FOR THE REASONABLE EXPENSES, INCLUDING
ATTORNEY'S FEES, THAT MIGHT BE INCURRED BY DEFENDANTS.  THE SECURITY
REQUIREMENT THERE APPLIED TO PLAINTIFF AND ITS PURPOSE WAS TO PROTECT
THE CORPORATION FROM BEING INJURED BY "STRIKE SUITS" THAT HARMED THE
VERY INTERESTS THAT PLAINTIFFS CLAIMED TO BE PROTECTING. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

        I 

I AGREE WITH THE COURT THAT THE DOUBLE-BOND PROVISION IN THE OREGON
EVICTION STATUTE DENIES TENANTS WHO ARE AFFECTED BY FORCIBLE ENTRY AND
WRONGFUL DETAINER PROCEDURES (CALLED FED) THAT EQUAL PROTECTION
GUARANTEED AGAINST STATE ACTION BY THE FOURTEENTH AMENDMENT. 

THE ORDINARY OR CUSTOMARY LITIGANT WHO APPEALS MUST FILE A BOND WITH
ONE OR MORE SURETIES COVERING "ALL DAMAGES, COSTS AND DISBURSEMENTS
WHICH MAY BE AWARDED AGAINST HIM ON THE APPEAL."  /1/  TO OBTAIN A STAY
OF EXECUTION PENDING THE APPEAL THE UNDERTAKING MUST ALSO PROVIDE:  (1)
IF THE SUIT IS FOR RECOVERY OF MONEY OR PERSONAL PROPERTY (OR ITS
VALUE), THAT THE APPELLANT WILL SATISFY THE CLAIM IF HE LOSES THE
APPEAL AND (2) IF THE JUDGMENT IS FOR THE RECOVERY OF POSSESSION OF
REAL PROPERTY, FOR A PARTITION OR FOR THE FORECLOSURE OF A LIEN, THAT
DURING POSSESSION THE APPELLANT WILL NOT COMMIT WASTE AND THAT IF HE
LOSES THE APPEAL, HE WILL PAY THE VALUE OF THE USE OF THE PROPERTY
DURING THE APPEAL. 

BY CONTRAST, IF A TENANT IN AN FED ACTION APPEALS, HE MUST GIVE "IN
ADDITION TO THE UNDERTAKING NOW REQUIRED BY LAW UPON APPEAL"  /2/  AN
UNDERTAKING WITH TWO SURETIES FOR PAYMENT OF TWICE THE RENTAL VALUE OF
THE PREMISES FROM THE COMMENCEMENT OF THE ACTION UNTIL FINAL JUDGMENT. 

THE MORE ONEROUS REQUIREMENT PLACED ON TENANTS IS SAID TO BE A
GUARANTEE THAT RENT PENDING APPEAL WILL BE PAID.  SCALES V. SPENCER,
246 ORE.  111, 424 P.2D 242.  YET THE GENERAL APPEAL STATUTE WOULD GIVE
THAT PROTECTION.  /3/ 

IT IS SAID THAT THE LANDLORD DESERVES PROTECTION FOR WASTE OR
DAMAGES PENDING APPEAL.  IBID.  BUT THAT PROTECTION IS ALSO PROVIDED
UNDER THE GENERAL APPEAL STATUTE. 

IT IS SAID THAT A DOUBLE-RENT BOND PROTECTS THE LANDLORD AGAINST
POSSIBLE WASTE OR DAMAGE WHICH OCCURS PRIOR TO, NOT DURING, THE
APPEAL.  BUT THE SAME REASON WOULD BE GERMANE TO WASTE OR DAMAGE IN
OTHER SUITS BROUGHT TO OBTAIN POSSESSION OF PROPERTY.  DRAWING THE LINE
BETWEEN THE PRESENT SUITS TO OBTAIN POSSESSION AND OTHER SUITS AND
SADDLING TENANTS WITH DOUBLE-RENT BONDS BUT NOT SADDLING OTHER OWNERS
WITH SUCH BONDS SEEMS TO ME OBVIOUSLY AN INVIDIOUS DISCRIMINATION. 

IT IS SAID THAT THE DOUBLE-RENT BOND IS DESIGNED TO PREVENT FRIVOLOUS
APPEALS TAKEN FOR THE SOLE PURPOSE OF DELAYING EVICTION AS LONG AS
POSSIBLE.  IBID.  YET FRIVOLOUS APPEALS COULD AS WELL BE TAKEN BY
DEFENDANTS WHOSE LIEN IS BEING FORECLOSED AND WHO DESIRE TO REMAIN IN
POSSESSION.  IT IS AN INVIDIOUS DISCRIMINATION AT WHICH THE EQUAL
PROTECTION CLAUSE IS AIMED FOR A LEGISLATURE TO SELECT ONE CLASS OF
APPELLANTS WHO SEEK TO RETAIN POSSESSION OF PROPERTY AND PLACE A MORE
ONEROUS CONDITION ON THEIR RIGHT TO APPEAL THAN IS PLACED ON OTHER LIKE
APPELLANTS. 

IN SUM, THE DOUBLE-BOND PROCEDURE IS LANDLORD LEGISLATION, NOT
EVENLY WEIGHTED BETWEEN HIS PROPRIETARY INTEREST IN THE PROPERTY AND
THE RIGHTS OF THE TENANTS.  OVER A THIRD OF OUR POPULATION LIVES IN
APARTMENTS OR OTHER RENTED HOUSING.  /4/  THE HOME-- WHETHER RENTED OR
OWNED-- IS THE VERY HEART OF PRIVACY IN MODERN AMERICA.  MR. JUSTICE
MARSHALL IN HALL V. BEALS, 396 U.S. 45, 52 (DISSENTING), SPOKE OF THE
PROTECTION AFFORDED "FUNDAMENTAL INTERESTS" WHEN IT CAME TO
CLASSIFICATIONS MADE BY LEGISLATURES.  IN THAT CASE IT WAS THE
FRANCHISE.  RACE IS IN THE SAME CATEGORY (MCLAUGHLIN V. FLORIDA, 379
U.S. 184); SO ARE WEALTH (DOUGLAS V. CALIFORNIA, 372 U.S. 353; HARPER
V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663); PROCREATION (SKINNER V.
OKLAHOMA, 316 U.S. 535); AND INTERSTATE TRAVEL (SHAPIRO V. THOMPSON,
394 U.S. 618).  CLASSIFICATIONS THAT BURDEN, IMPINGE, OR DISCRIMINATE
AGAINST SUCH FUNDAMENTAL INTERESTS /5/  ARE "HIGHLY SUSPECT."  MCDONALD
V. BOARD OF ELECTIONS, 394 U.S. 802, 807. 

MODERN MAN'S PLACE OF RETREAT FOR QUIET AND SOLACE IS THE HOME. 
WHETHER RENTED OR OWNED, IT IS HIS SANCTUARY.  BEING UPROOTED AND PUT
INTO THE STREET IS A TRAUMATIC EXPERIENCE.  LEGISLATURES CAN, OF
COURSE, PROTECT PROPERTY INTERESTS OF LANDLORDS.  BUT WHEN THEY WEIGHT
THE SCALES AS HEAVILY AS DOES OREGON FOR THE LANDLORD AND AGAINST THE
FUNDAMENTAL INTEREST OF THE TENANT THEY MUST BE BACKED BY SOME
"COMPELLING . . . INTEREST," KRAMER V. UNION SCHOOL DISTRICT, 395 U.S.
621, 627.  NO SUCH "COMPELLING . . . INTEREST" UNDERLIES THIS STATUTORY
SCHEME. 

THE DOUBLE-RENT BOND REQUIRED OF TENANTS, BUT NOT REQUIRED OF OTHERS
IN POSSESSION OF REAL ESTATE, IS PROPERLY HELD TO BE UNCONSTITUTIONAL
BY REASON OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

        II 

I CANNOT AGREE, HOWEVER, THAT THE REMAINDER OF OREGON'S FED STATUTE
SATISFIES THE REQUIREMENTS OF DUE PROCESS OF LAW. 

I AM SATISFIED THAT THE COURT PROPERLY ADDRESSES ITSELF TO THE
REMAINING QUESTIONS RATHER THAN REQUIRING APPELLANTS, WHO ARE ALREADY
DESTITUTE, TO START LITIGATION ALL OVER IN THE OREGON STATES COURTS. 
THE THREE-JUDGE COURT THAT DECIDED THIS CASE IS A PANEL OF
DISTINGUISHED OREGON LAWYERS AND JUDGES.  JUDGE GOODWIN CAME TO THE
DISTRICT COURT FROM THE SUPREME COURT OF OREGON.  JUDGE SOLOMON HAS
PRACTICED AND SAT IN PORTLAND, OREGON, FOR YEARS.  JUDGE KILKENNY WAS A
WELL-KNOWN PRACTITIONER IN PENDLETON, OREGON, BEFORE COMING TO THE
FEDERAL BENCH.  THESE MEN HAVE THEIR ROOTS DEEP IN OREGON LAW AND ARE
BY NO MEANS OUTSIDERS UNFAMILIAR WITH IT.  ON LOCAL-LAW QUESTIONS WE
HAVE LONG DEFERRED TO FEDERAL JUDGES WHO HAVE COME FROM LAW PRACTICE IN
A STATE WHOSE LOCAL LAW IS AT ISSUE IN A FEDERAL CASE.  SEE MACGREGOR
V. STATE MUTUAL CO., 315 U.S. 280, 281; HUDDLESTON V. DWYER, 322 U.S.
232, 237; BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198, 204; MAGENAU V.
AETNA FREIGHT LINES, 360 U.S. 273, 281 N. 2 (FRANKFURTER, J.,
DISSENTING). 

THIS IS A MOST APPROPRIATE OCCASION TO HONOR THAT TRADITION.  WHILE
THERE ARE OCCASIONAL APPROPRIATE CASES FOR ABSTENTION (SEE REETZ V.
BOZANICH, 397 U.S. 82), THIS COURT'S ABSTENTION DOCTRINE THAT REQUIRES
LITIGANTS TO START ALL OVER AGAIN IN A STATE COURT AFTER HAVING
FINANCED THEIR COURSE ALL THE WAY TO THIS COURT IS LIKELY TO EXHAUST
ONLY THE LITIGANTS. 

THIS ALL-OREGON PANEL SAID ON THE ABSTENTION ISSUE: 

     "IT IS UNLIKELY THAT AN APPLICATION OF STATE LAW WOULD CHANGE

  THE POSTURE OF THE FEDERAL CONSTITUTIONAL ISSUES.  NO STATE

  ADMINISTRATIVE PROCESS IS INVOLVED.  THE CASE HAS BEEN THOROUGHLY

  BRIEFED AND ARGUED ON THE MERITS, AND IS PRESENTED ON A CLEAR AND

  COMPLETE RECORD.  IT IS RIPE FOR DECISION.  ONLY ONE APPEAL (TO

  THE UNITED STATES SUPREME COURT) WILL NOW BE NEEDED TO SETTLE THE

  FEDERAL CONSTITUTIONAL QUESTION.  WHILE THE STATE COURTS ARE ALSO

  CAPABLE OF APPLYING THE UNITED STATES CONSTITUTION TO A

  CHALLENGED STATE LAW, TWO LEVELS OF APPEAL WOULD BE NEEDED IN AN

  F.E.D. CASE WITHIN THE STATE SYSTEM.  A FINAL STATE-COURT

  DECISION WOULD STILL NOT NECESSARILY SETTLE THE FEDERAL

  CONSTITUTIONAL QUESTION. 

      "CLOSELY RELATED TO THE TIME ELEMENT IS ECONOMY.  CASES OF
THIS

  SORT TAX BOTH COURTS AND COUNSEL.  UNTIL FINALLY RESOLVED, THESE

  CASES PRODUCE EXPENSE, UNCERTAINTY, AND FRUSTRATION.  DELAY

  PRODUCES NO BALANCING BENEFIT, EITHER OF COMITY OR OF CLARITY IN

  STATE-FEDERAL RELATIONS." 

AGREEING WITH THAT VIEW, I COME TO THE REMAINING CONSTITUTIONAL
ISSUES. 

IN MY VIEW, THERE ARE DEFECTS IN THE OREGON PROCEDURES WHICH GO TO
THE ESSENCE OF A LITIGANT'S RIGHT OF ACCESS TO THE COURTS, WHETHER HE
BE RICH OR POOR, BLACK OR WHITE. 

THE PROBLEM STARTS WITH JUDGE WRIGHT'S STATEMENT IN JAVINS V. FIRST
NATIONAL REALTY CORP., 138 U.S.APP.D.C. 369, 372, 428 F.2D 1071, 1074: 

"WHEN AMERICAN CITY DWELLERS, BOTH RICH AND POOR, SEEK 'SHELTER'
TODAY, THEY SEEK A WELL KNOWN PACKAGE OF GOODS AND SERVICES-- A PACKAGE
WHICH INCLUDES NOT MERELY WALLS AND CEILINGS, BUT ALSO ADEQUATE HEAT,
LIGHT AND VENTILATION, SERVICEABLE PLUMBING FACILITIES, SECURE WINDOWS
AND DOORS, PROPER SANITATION, AND PROPER MAINTENANCE." 

THIS VITAL INTEREST THAT IS AT STAKE MAY, OF COURSE, BE TESTED IN SO
CALLED SUMMARY PROCEEDINGS.  BUT THE REQUIREMENTS OF DUE PROCESS APPLY
AND DUE PROCESS ENTAILS THE RIGHT "TO SUE AND DEFEND IN THE COURTS," A
RIGHT WE HAVE DESCRIBED AS "THE ALTERNATIVE OF FORCE" IN AN ORGANIZED
SOCIETY.  CHAMBERS V. BALTIMORE & OHIO R. CO., 207 U.S. 142, 148.  IN
ESSENCE THE QUESTION COMES DOWN TO NOTICE AND AN OPPORTUNITY TO
DEFEND.  ARMSTRONG V. MANZO, 380 U.S. 545; MULLANE V. CENTRAL HANOVER
TRUST CO., 339 U.S. 306. 

OREGON GIVES THE TENANT "NOT LESS THAN TWO OR MORE THAN FOUR DAYS"
/6/  AFTER SERVICE OF SUMMONS TO GO TO TRIAL.  IF SERVICE IS ON A
FRIDAY, TRIAL COULD BE ON THE FOLLOWING MONDAY.  THERE CAN BE NO
CONTINUANCE FOR MORE THAN TWO DAYS "UNLESS THE DEFENDANT . . . GIVES AN
UNDERTAKING . . . WITH GOOD AND SUFFICIENT SECURITY" COVERING THE RENT
WHICH MAY ACCRUE DURING THE TRIAL.  /7/ 

FOR SLUM TENANTS-- NOT TO MENTION THE MIDDLE CLASS-- THIS KIND OF
SUMMARY PROCEDURE USUALLY WILL MEAN IN ACTUALITY NO OPPORTUNITY TO BE
HEARD.  FINDING A LAWYER IN TWO DAYS, ACQUAINTING HIM WITH THE FACTS,
AND GETTING NECESSARY WITNESSES MAKE THE THEORETICAL OPPORTUNITY TO BE
HEARD AND INTERPOSE A DEFENSE A PROMISE OF EMPTY WORDS.  IT IS, INDEED,
A MEANINGLESS NOTICE AND OPPORTUNITY TO DEFEND.  THE TRIAL IS LIKELY TO
BE HELD IN THE PRESENCE OF ONLY THE JUDGE AND THE LANDLORD AND THE
LANDLORD'S ATTORNEY.  /8/ 

MOREOVER, EVEN FOR TENANTS WHO HAVE BEEN LUCKY TO FIND A LAWYER, THE
LANDLORD NEED ONLY PLEAD /9/  AND PROVE /10/  THE FOLLOWING ITEMS IN
ORDER TO WIN A JUDGMENT:  (1) A DESCRIPTION OF THE PREMISES, (2) THAT
THE DEFENDANT IS IN POSSESSION OF THE PREMISES, (3) THAT HE ENTERED
UPON THEM "WITH FORCE," OR UNLAWFULLY HOLDS THEM "WITH FORCE,"  /11/
AND (4) THAT THE PLAINTIFF IS ENTITLED TO POSSESSION. 

AFFIRMATIVE DEFENSES SUCH AS THE FAILURE OF THE LANDLORD TO MAKE
REPAIRS OR THAT THE MOTIVATION FOR THE EVICTION WAS RETALIATION FOR A
REPORT BY THE TENANT OF A VIOLATION OF A HOUSING CODE ARE APPARENTLY
PRECLUDED.  THIS REFLECTS THE ANCIENT NOTION THAT A LEASE IS A
CONVEYANCE OF AN "ESTATE IN LAND", IN WHICH THE RESPECTIVE COVENANTS--
A TENANT'S TO PAY RENT, THE LANDLORD'S TO REPAIR-- WERE DEEMED
INDEPENDENT OF EACH OTHER.  THIS APPROACH WAS APPROPRIATE IN THE FEUDAL
CULTURE IN WHICH PROPERTY LAW EVOLVED.  /12/ BUT THIS FEUDAL NOTION OF
LANDLORD-TENANT LAW-- ROOTED IN THE SPECIAL NEEDS OF AN AGRARIAN
SOCIETY-- HAS NOT BEEN A REALISTIC APPROACH TO LANDLORD-TENANT LAW FOR
MANY YEARS, /13/  AND HAS BEEN REPLACED BY WHAT EMINENT AUTHORITIES
HAVE DESCRIBED AS "A PREDOMINATELY CONTRACTUAL" ANALYSIS OF LEASEHOLD
INTERESTS.  /14/  THIS LED JUDGE WRIGHT IN JAVINS V. FIRST NATIONAL
REALTY CORP., 138 U.S.APP.D.C.,AT 373, 428 F.2D, AT 1075, TO HOLD "THAT
LEASES OF URBAN DWELLING UNITS SHOULD BE INTERPRETED AND CONSTRUED LIKE
ANY OTHER CONTRACT."  OREGON TAKES THE SAME VIEW AND TREATS A LEASE AS
A CONTRACT.  WRIGHT V. BAUMANN, 239 ORE.  410, 398 P.2D 119; EGGEN V.
WETTERBORG, 193 ORE.  145, 237 P.2D 970. 

THE HOUSING CODE OF PORTLAND, OREGON, HAS AS ITS DECLARED PURPOSE
THE PROTECTION OF THE LIFE, HEALTH, AND WELFARE OF THE PUBLIC AND OF
THE OWNERS AND OCCUPANTS OF RESIDENTIAL BUILDINGS.  /15/  IT FORBIDS
ANYONE TO USE OR PERMIT A BUILDING TO BE USED IN VIOLATION OF ITS
PROVISIONS.  ID., SEC. 8-204. 

WE DO NOT KNOW WHAT OREGON WOULD HOLD IF A LEASE IN VIOLATION OF A
HOUSING CODE WAS BEFORE IT IN AN FED CASE.  BUT IF THE LEASE IS A
CONTRACT, THEN THE OPPORTUNITY TO BE HEARD WOULD CERTAINLY EMBRACE THE
ISSUE OF LEGALITY, IF DUE PROCESS IS TO HAVE ANY REAL SIGNIFICANCE. 
OREGON'S STATUTORY FED SCHEME IS PLAINLY TO PROTECT LANDLORDS AGAINST
LOSS OF RENTAL INCOME DURING LENGTHY LITIGATION.  SEE MENEFEE LUMBER
CO. V. ABRAMS, 138 ORE.  263, 5 P.2D 709; FRIEDENTHAL V. THOMPSON, 146
ORE.  640, 31 P.2D 643.  BUT THAT IS NO JUSTIFICATION FOR DENIAL TO
TENANTS OF DUE PROCESS, AS THERE ARE OTHER LESS DRASTIC DEVICES FOR
PROTECTING THE LANDLORD.  JUDGE WRIGHT IN THE JAVINS CASE, 138
U.S.APP.D.C.,AT 381 N. 67, 428 F.2D, AT 1083 N. 67, PROPOSED "AN
EXCELLENT PROTECTIVE PROCEDURE" IN THE FORM OF A REQUIREMENT THAT THE
TENANT, WHO RAISES AN AFFIRMATIVE DEFENSE BASED ON HOUSING CODE
VIOLATIONS OR OTHER DISCRIMINATORY LANDLORD PRACTICES, PAY RENT INTO
COURT AS IT BECAME DUE.  /16/  SEE ALSO BELL V. TSINTOLAS REALTY CO.,
139 U.S.APP.D.C. 101, 430 F.2D 474.  THE DISTRICT COURT IN THE PRESENT
CASE EMPLOYED A SIMILAR PROCEDURE. 

APPELLEES ASSERT THAT THE AFFFIRMATIVE DEFENSES MENTIONED ARE NOT
RELEVANT TO THE ISSUES POSED UNDER OREGON'S FED ACT.  THEY REPRESENT TO
US THAT THE OREGON SUPREME COURT HAS NOT CONSIDERED THE QUESTION.  WHAT
OREGON WILL HOLD OR SHOULD HOLD IS NOT THE ISSUE.  SINCE, HOWEVER,
OREGON HOLDS THAT A LEASE IS A CONTRACT, ALL DEFENSES RELEVANT TO ITS
LEGALITY AND ITS ACTUAL OPERATION WOULD SEEM TO BE WITHIN THE AMBIT OF
THE OPPORTUNITY TO BE HEARD THAT IS EMBRACED WITHIN THE CONCEPT OF DUE
PROCESS, AT LEAST UNTIL THE ISSUE HAS BEEN RESOLVED TO THE CONTRARY. 

THE COURT SUGGESTS THAT LANDLORD-TENANT LAW RAISES NO FEDERAL
QUESTIONS.  THIS IS NOT QUITE SO CLEAR TO ME.  WE HAVE HELD THAT THE
RIGHT TO COMPLAIN TO PUBLIC AUTHORITIES IS CONSTITUTIONALLY PROTECTED. 
IN RE QUARLES, 158 U.S. 532.  IF A DEFENDANT IN AN FED ACTION IS DENIED
THE RIGHT TO ASSERT AS A DEFENSE THE CLAIM THAT HE IS BEING EVICTED,
NOT FOR THE NONPAYMENT OF RENT, BUT BECAUSE HE EXERCISED HIS
CONSTITUTIONAL RIGHT TO COMPLAIN TO PUBLIC OFFICIALS ABOUT THE
DISREPAIR OF HIS APARTMENT, A SUBSTANTIAL FEDERAL QUESTION WOULD BE
PRESENTED.  SEE EDWARDS V. HABIB, 130 U.S. APP.D.C. 126, 129-137, 397
F.2D 687, 690-698 (1968). 

THE COURT ALSO IMPLIES THAT TO FIND FOR APPELLANTS IN THIS CASE, WE
WOULD HAVE TO HOLD, AS A MATTER OF CONSTITUTIONAL LAW, THAT A LEASE IS
REQUIRED TO BE INTERPRETED AS AN ORDINARY CONTRACT.  BUT THIS IS NOT AT
ALL NECESSARY.  OREGON HAS ALREADY ADOPTED THE MODERN, CONTRACTUAL VIEW
OF LEASEHOLD ANALYSIS.  THE ISSUE THAT CONFRONTS THE COURT IS NOT
WHETHER SUCH A VIEW IS CONSTITUTIONALLY COMPELLED, BUT WHETHER, ONCE
OREGON HAS GONE THIS FAR AS A MATTER OF STATE LAW, THE REQUIREMENTS OF
DUE PROCESS PERMIT A RESTRICTION OF CONTRACT-TYPE DEFENSES IN AN FED
ACTION.  CF. SHAPIRO V. THOMPSON, 394 U.S.,AT 627 N. 6; SHERBERT V.
VERNER, 374 U.S. 398, 404-406. 

NORMALLY A STATE MAY BIFURCATE TRIALS, DECIDING, SAY, THE RIGHT TO
POSSESSION IN ONE SUIT AND THE RIGHT TO DAMAGES IN ANOTHER.  SEE
BIANCHI V. MORALES, 262 U.S. 170; AMERICAN SURETY CO. V. BALDWIN, 287
U.S. 156. 

BUT WHERE THE RIGHT IS SO FUNDAMENTAL AS THE TENANT'S CLAIM TO HIS
HOME, THE REQUIREMENTS OF DUE PROCESS SHOULD BE MORE EMBRACING.  IN THE
SETTING OF MODERN URBAN LIFE, THE HOME, EVEN THOUGH IT BE IN THE SLUMS,
IS WHERE MAN'S ROOTS ARE.  TO PUT HIM INTO THE STREET WHEN THE SLUM
LANDLORD, NOT THE SLUM TENANT, IS THE REAL CULPRIT DEPRIVES THE TENANT
OF A FUNDAMENTAL RIGHT WITHOUT ANY REAL OPPORTUNITY TO DEFEND.  THEN HE
LOSES THE ESSENCE OF THE CONTROVERSY, BEING GIVEN ONLY EMPTY PROMISES
THAT SOMEHOW, SOMEWHERE, SOMEONE MAY ALLOW HIM TO LITIGATE THE BASIC
QUESTION IN THE CASE. 

BIANCHI V. MORALES, SUPRA, WHICH SANCTIONED THE BIFURCATED TRIAL IN
THE RURAL SETTING OF PUERTO RICO, WHERE THE CONTEST WAS BETWEEN
MORTGAGOR AND MORTGAGEE, WOULD BE AN INSUFFERABLE ADDITION TO THE LAW
OF THE MODERN GHETTO. 

A JUDGMENT OBTAINED BY THE LANDLORD, WHETHER BY DEFAULT OR
OTHERWISE, GIVES HIM THE RIGHT TO LEVY ON THE GOODS OF THE TENANT TO
RECOVER THE COSTS AND DISBURSEMENTS OF THE SUIT.  /17/  MOREOVER, ANY
PAST WASTE OR DAMAGES, WHICH ARE COVERED BY THE APPEAL BOND, ARE NOT AN
ISSUE IN LITIGATION IN FED CASES.  AS NOTED, THE ISSUES IN OREGON FED
CASES ARE LIMITED AND THE PROCEEDINGS SUMMARY.  MAKING THE TENANT
LIABLE FOR PAST WASTE OR DAMAGE THROUGH THE DEVICE OF AN APPEAL BOND
WHEN HE HAS NO REAL OPPORTUNITY TO DEFEND IS A MANIFEST DENIAL OF DUE
PROCESS. 

I DISSENT FROM AN AFFIRMANCE OF THIS JUDGMENT. 

/1/  ORE.  REV.  STAT. SEC. 19.040(1). 

/2/  ID., SEC. 105.160. 

/3/  THE GENERAL APPEAL STATUTE (ORE.  REV.  STAT. SEC. 19.040(1)),
HOWEVER, APPLIES ONLY TO APPEALS FROM THE TRIAL COURT OF GENERAL
JURISDICTION (CIRCUIT COURT).  FED ACTIONS MAY BE BROUGHT IN THE
CIRCUIT COURT, ORE.  REV.  STAT. SEC. 105.110, BUT ARE ALSO WITHIN THE
JURISDICTION OF THE DISTRICT AND JUSTICE OF THE PEACE COURTS-- COURTS
OF LIMITED JURISDICTION.  IBID.  A LITIGANT MAY APPEAL FROM THESE
COURTS TO THE CIRCUIT COURT, ORE.  REV.  STAT. SEC. 46.250, IN WHICH
CASE TRIAL IS HAD DE NOVO, AND MAY STAY AN ADVERSE DECISION PENDING
APPEAL BY GIVING AN UNDERTAKING, WITH ONE OR MORE SURETIES, THAT HE
WILL PAY ALL COSTS AND DISBURSEMENTS AGAINST HIM AWARDED ON THE APPEAL,
AND THAT HE WILL SATISFY ANY JUDGMENT THAT MIGHT BE ENTERED AGAINST HIM
BY THE APPELLATE COURT.  ORE.  REV. STAT. SEC. 53.040. 

APPELLEES ARGUE THAT THE UNDERTAKING PROVIDED FOR BY ORE.  REV. 
STAT. SEC. 53.040 IS INADEQUATE TO PROTECT LANDLORDS' RIGHTS.  THE
ANSWERS ARE TWO.  FIRST, THE LANDLORD HAS THE PREROGATIVE TO BRING SUIT
IN THE CIRCUIT COURT, SHOULD HE DESIRE THE GREATER PROTECTION OF THE
GENERAL APPEAL STATUTE.  SECOND, THE LEGISLATURE COULD PROVIDE THAT THE
GENERAL APPEAL STATUTE APPLY TO FED ACTIONS BROUGHT IN THE DISTRICT, AS
WELL AS CIRCUIT, COURTS. 

/4/  1970 CENSUS OF HOUSING, ADVANCE REPORT HC (V. 1), P. 11. 

/5/  THE "RATIONAL" RELATIONSHIP TEST APPLIED TO STRICTLY ECONOMIC
OR BUSINESS INTERESTS (UNITED STATES V. MARYLAND SAVINGS-SHARE INS.
CORP., 400 U.S. 4, 6; MCDONALD V. BOARD OF ELECTIONS, 394 U.S. 802,
809) IS NOT GERMANE HERE. 

/6/  ORE.  REV.  STAT. SEC. 105.135. 

/7/  ID., SEC. 105.140. 

/8/  THE MAJORITY STRESSES THE "FACT" THAT A TENANT MAY HAVE UP TO
SIX DAYS TO PREPARE FOR TRIAL.  BUT AS OF RIGHT, THE STATUTE GUARANTEES
ONLY TWO.  WHILE VARIOUS DISCRETIONARY ACTIONS MAY RESULT IN A TENANT'S
HAVING THE FULL SIX DAYS, "(THE RIGHT OF A CITIZEN TO DUE PROCESS OF
LAW MUST REST UPON A BASIC MORE SUBSTANTIAL THAN FAVOR OR DISCRETION." 
ROLLER V. HOLLEY, 176 U.S. 398, 409. 

/9/  ORE.  REV.  STAT. SEC. 105.125. 

/10/  ID., SEC. 105.145. 

/11/  "UNLAWFUL HOLDING BY FORCE" IS DEFINED BY ORE.  REV.  STAT.
SEC. 105.115 TO OCCUR IN THE FOLLOWING CIRCUMSTANCES:  (1) IF A TENANT
"FAILS OR REFUSES TO PAY RENT WITHIN 10 DAYS AFTER IT IS DUE" PURSUANT
TO A LEASE OR AGREEMENT, (2) IF HE FAILS OR REFUSES "TO DELIVER
POSSESSION OF THE PREMISES AFTER BEING IN DEFAULT ON PAYMENT OF RENT
FOR 10 DAYS," (3) IF HE REMAINS IN POSSESSION AFTER RECEIPT OF A
STATUTORY NOTICE TO QUIT (SEE ORE.  REV.  STAT. SEC. 105.120) AND WAS
HOLDING UNDER AN EXPIRED LEASE OR WAS A MONTH-TO-MONTH OR YEAR-TO-YEAR
TENANT, OR (4) IF HE "IS HOLDING CONTRARY TO ANY CONDITION OR COVENANT
OF THE LEASE" OR "WITHOUT ANY WRITTEN LEASE OR AGREEMENT." 

/12/  "UNDER FEUDAL TENURE, AND IN MORE RECENT TIMES, IN THE SETTING
OF A LARGELY AGRARIAN SOCIETY, THE TENANT RENTED LAND PRIMARILY FOR THE
PRODUCTION OF CROPS.  THE FACT THAT A BUILDING OR DWELLING STOOD ON THE
PREMISES WAS, IN THE MAIN, INCIDENTAL, BECAUSE THE MAJOR EMPHASIS WAS
ON THE TENANT'S RIGHT TO TILL THE SOIL FOR THE PRODUCTION OF CROPS TO
SUPPLY HIM A LIVELIHOOD.  FOR AS LONG AS THE TENANT RENTED THE LAND HE
WAS THE HOLDER OF AN ESTATE FOR YEARS; IN EFFECT, HE WAS THE OWNER FOR
A LIMITED TERM.  IF HE WANTED TO LIVE IN COMFORT, AND IF A DWELLING
STOOD ON THE LAND, IT WAS HIS BUSINESS TO MAKE THAT DWELLING LIVABLE,
TO SEE TO IT THAT THE ROOF WAS WATERTIGHT, THAT THE WELL WAS IN GOOD
SHAPE, AND THAT WHATEVER SANITARY FACILITIES THERE WERE, WERE
ADEQUATE.  WHILE HE WAS NOT TO COMMIT 'WASTE'-- DESTRUCTION OF THE
PROPERTY THAT WOULD IT IN LESS PRODUCTIVE CONDITION THAN WHEN HE RENTED
IT-- THE OWNER OWED HIM NO OBLIGATION TO ASSIST IN MAINTAINING HIS
BUILDINGS IN A LIVABLE OR DECENT CONDITION. 

"IF ANYTHING, THE OBLIGATION RAN THE OTHER WAY BECAUSE AN
INTENTIONAL OR GROSSLY NEGLIGENT DESTRUCTION OF BUILDINGS ON THE
PREMISES MIGHT BE CONSTRUED AS WASTE BY THE TENANT.  THUS, FROM ITS
VERY BEGINNING, THE OBLIGATION TO REPAIR WENT HAND IN HAND WITH
CONTROL.  SINCE THE LANDLORD GAVE UP CONTROL OVER THE PREMISES FOR THE
STATED TERM OF YEARS OF THE LEASEHOLD, DURING THAT TERM WHATEVER THE
OBLIGATION TO REPAIR WOULD REST ON THE TEMPORARY OWNER, THE TENANT,
RATHER THAN ON THE HOLDER OF THE REVERSIONARY INTEREST, THE OWNER OF
THE FEE.  INITIALLY, THE DEPENDENCE OF THE OBLIGATION TO REPAIR ON THE
CAPACITY TO CONTROL WAS RETAINED AND APPLIED TO NON-RURAL HOUSING AS
WELL."  LEGAL REMEDIES FOR HOUSING CODE VIOLATIONS, NATIONAL COMMISSION
ON URBAN PROBLEMS, RESEARCH REPORT NO. 14, PP. 110-111 (1968).     /13/
"THE LEGAL RULES PERTAINING TO THE REPAIR OF LEASEHOLD BECAME WHOLLY
UNREAL AND ANACHRONISTIC WITH INCREASING URBANIZATION DURING THE 19TH
CENTURY, WITH THE INCREASING RELIANCE ON MULTI-UNIT RENTAL PROPERTY,
SUCH AS TENEMENT HOUSES, TO PROVIDE SHELTER FOR THE URBAN AREAS'
GROWING INDUSTRIAL LABOR POPULATION.  IN AN AGRARIAN SETTING IT MADE
SENSE TO REQUIRE THE TENANT TO KEEP IN GOOD REPAIR AN ENTIRE DWELLING
HOUSE HE HAD RENTED FROM AN OWNER.  ON THE OTHER HAND, TO REQUIRE A
RELATIVELY TRANSIENT TENANT TO ASSUME THE OBLIGATION OF REPAIR IN A
MULTI-UNIT BUILDING OR IN A TENEMENT HOUSE WITH RESPECT TO HIS ROOMS
AND WITH RESPECT TO PLUMBING, HEATING, AND OTHER FIXTURES THAT WERE
INTERCONNECTED WITH OTHER PARTS AND FIXTURES IN THE BUILDING MADE NO
SENSE AT ALL."  ID., AT 111-112. 

/14/  R. POWELL & P. ROHAN, REAL PROPERTY 179 (1967). 

/15/  HOUSING CODE SEC. 8-102. 

/16/  OREGON'S CONTINUANCE BOND, ORE.  REV.  STAT. SEC. 105.140,
SERVES THE SAME FUNCTION: 

"NO CONTINUANCE SHALL BE GRANTED FOR A LONGER PERIOD THAN TWO DAYS
UNLESS THE DEFENDANT APPLYING THEREFOR GIVES AN UNDERTAKING TO THE
ADVERSE PARTY WITH GOOD AND SUFFICIENT SECURITY, TO BE APPROVED BY THE
COURT, CONDITIONED FOR THE PAYMENT OF THE RENT THAT MAY ACCRUE IF
JUDGMENT IS RENDERED AGAINST THE DEFENDANT." 

/17/  ORE.  REV.  STAT. SEC. 105.155. 

MR. JUSTICE BRENNAN, DISSENTING IN PART. 

IN MY VIEW THE DISTRICT COURT ERRED IN DECLINING TO APPLY THE
DOCTRINE OF ABSTENTION WITH RESPECT TO THE AVAILABILITY OF DEFENSES IN
FED ACTIONS.  /1/  THE ISSUE IS WHETHER OREGON WOULD VIOLATE THE
FOURTEENTH AMENDMENT IF ITS SUBSTANTIVE LAW IN SOME CIRCUMSTANCES
RECOGNIZED A TENANT'S RIGHTS TO WITHHOLD RENT AND RETAIN POSSESSION
BASED ON THE LANDLORD'S BREACH OF DUTY TO MAINTAIN THE PREMISES, BUT
ITS PROCEDURAL LAW WOULD NOT PERMIT ASSERTION OF THOSE RIGHTS IN
DEFENSE OF AN FED ACTION.  THIS CONSTITUTIONAL ISSUE IS RIPE FOR
DECISION IF, AND ONLY IF, OREGON LAW (1) RECOGNIZES SUBSTANTIVE RIGHTS
OF THE TENANT BASED ON THE LANDLORD'S BREACH OF DUTY; (2) RECOGNIZES,
BECAUSE OF SUCH BREACH, THAT A TENANT MAY REMAIN IN POSSESSION WHILE
WITHHOLDING RENT DURING THE TERM OR MAY HOLD OVER AFTER EXPIRATION OF
THE TERM, AND (3) EXCLUDES THE ASSERTION OF THESE RIGHTS TO CONTINUED
POSSESSION AS A DEFENSE TO AN FED ACTION. 

THE COURT'S OPINION EXPOSES THE FALLACY OF THE DISTRICT COURT'S
CONCLUSION THAT OREGON LAW IS "CLEAR" AND THAT "(IT IS UNLIKELY THAT AN
APPLICATION OF STATE LAW WOULD CHANGE THE POSTURE OF THE FEDERAL
CONSTITUTIONAL ISSUES."  APP. 73.  FOR THE COURT CITES OREGON DECISIONS
THAT HAVE RECOGNIZED CERTAIN EQUITABLE DEFENSES IN FED ACTIONS, ANTE,
AT 66 N. 11, AND CAN ONLY CONJECTURE THAT THE DEFENSES APPELLANTS
SOUGHT TO RAISE ARE "APPARENTLY" NOT IN THIS CATEGORY.  WE CANNOT
CONFIDENTLY SAY, THEREFORE, HOW THE OREGON COURTS WOULD TREAT
APPELLANTS' DEFENSES, IF AVAILABLE AT ALL, WHEN ASSERTED IN AN FED
SUIT, OR HOW, IF THOSE DEFENSES ARE AVAILABLE IN FED SUITS, THE OREGON
COURTS WOULD APPLY THE REQUIREMENT OF A TRIAL NO LATER THAN SIX DAYS
AFTER SERVICE OF PROCESS.  CLEARLY, THEREFORE, THE OREGON LAW IS
SUSCEPTIBLE OF A "CONSTRUCTION BY THE STATE COURTS THAT WOULD AVOID OR
MODIFY THE CONSTITUTIONAL QUESTION."  ZWICKLER V. KOOTA, 389 U.S. 241,
249 (1967); REETZ V. BOZANICH, 397 U.S. 82 (1970).  IN THESE
CIRCUMSTANCES THE DISTRICT COURT SHOULD HAVE REMITTED APPELLANTS TO THE
OREGON COURTS FOR AN AUTHORITATIVE INTERPRETATION OF OREGON LAW IN
THESE RESPECTS BEFORE ADJUDICATING APPELLANTS PLAINLY NONFRIVOLOUS
CONSTITUTIONAL ATTACKS UPON THE FED STATUTE. 

I WOULD VACATE THE JUDGMENT OF DISMISSAL AND REMAND WITH DIRECTION
TO THE DISTRICT COURT (1) TO ENTER JUDGMENT DECLARING THAT THE DOUBLE
BOND REQUIREMENT OF ORE.  REV.  STAT. SEC. 105.160 VIOLATES THE EQUAL
PROTECTION CLAUSE, AND (2) TO RETAIN JURISDICTION AND REINSTATE THE
TEMPORARY RESTRAINING ORDER CONDITIONED ON THE PAYMENT OF RENT INTO THE
ESCROW ACCOUNT, PROVIDED APPELLANTS, WITHIN A TIME FIXED BY THE
DISTRICT COURT, INSTITUTE APPROPRIATE PROCEEDINGS IN THE OREGON COURTS
TO OBTAIN AN AUTHORITATIVE INTERPRETATION OF THE FED STATUTE WITH
RESPECT TO DEFENSES AVAILABLE IN ACTIONS THEREUNDER. 

/1/  ABSTENTION ON THE DOUBLE-BOND PROVISION IS NOT REQUIRED IN
LIGHT OF THE OREGON SUPREME COURT'S DECISION IN SCALES V. SPENCER, 246
ORE.  111, 424 P.2D 242 (1967).  I AGREE WITH THE COURT THAT THIS
PROVISION VIOLATES THE EQUAL PROTECTION CLAUSE. 

JOHN H. CLOUGH ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WAS MYRON MOSKOVITZ. 

THEODORE B. JENSEN ARGUED THE CAUSE FOR APPELLEE NORMET.  WITH HIM
ON THE BRIEFS WAS DONALD J. DEFRANCQ. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY DELANE C.
CARPENTER FOR THE PIMA COUNTY BAR ASSN.; BY HOWARD W. DIXON, BRUCE S.
ROGOW, AND STEVEN RAPPAPORT FOR LEGAL SERVICES OF GREATER MIAMI, INC.;
BY HELEN S. WHITE AND GERALD D. MCGONIGLE FOR NEW HAMPSHIRE LEGAL
ASSISTANCE; BY W. J. MICHAEL CODY III FOR MEMPHIS AND SHELBY COUNTY
LEGAL SERVICES ASSN., INC.; BY ELIZABETH M. BROOKS FOR JUNE BROOKS; BY
PAUL L. MCKASKLE FOR WESTERN CENTER ON LAW AND POVERTY; BY MARTIN R.
GLENN AND JOHN G. O'MARA FOR LEGAL AID SOCIETY OF LOUISVILLE; BY ANDREA
M. ALCARESE FOR LEGAL AID BUREAU, INC.; BY NANCY E. LEBLANC FOR
COMMUNITY ACTION FOR LEGAL SERVICES, INC., ET AL.; AND BY FRANKLIN
ARTHUR MARTENS FOR ALLEN COUNTY LEGAL AID SOCIETY ET AL.
..END :






UNITED STATES V. GENERES, 405 U.S. 93 


       UNITED STATES V. GENERES ET VIR

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 FIFTH CIRCUIT

        NO. 70-28.  ARGUED NOVEMBER 8, 1971-- DECIDED FEBRUARY 23,

           1972 


RESPONDENT TAXPAYER OWNED 44% OF THE STOCK OF A CLOSELY HELD
CONSTRUCTION CORPORATION WITH AN ORIGINAL INVESTMENT OF $38,900, AND
RECEIVED AN ANNUAL SALARY OF $12,000 FOR SERVING AS PRESIDENT ON A PART
TIME BASIS.  HIS TOTAL INCOME WAS ABOUT $40,000 A YEAR.  HE ADVANCED
MONEY TO THE CORPORATION AND SIGNED AN INDEMNITY AGREEMENT WITH A
BONDING COMPANY, WHICH FURNISHED BID AND PERFORMANCE BONDS FOR THE
CONSTRUCTION CONTRACTS.  THE CORPORATION DEFAULTED ON CONTRACTS IN 1962
AND THE TAXPAYER ADVANCED OVER $158,000 TO THE CORPORATION AND
INDEMNIFIED THE BONDING COMPANY TO THE EXTENT OF MORE THAN $162,000. 
THE CORPORATION WENT INTO RECEIVERSHIP AND HE OBTAINED NO REIMBURSEMENT
FOR THESE SUMS.  ON HIS 1962 INCOME TAX RETURN THE TAXPAYER TOOK HIS
LOSS ON DIRECT LOANS TO THE CORPORATION AS A NONBUSINESS BAD DEBT, BUT
HE CLAIMED THE INDEMNIFICATION LOSS AS A BUSINESS DEBT AND DEDUCTED IT
AGAINST ORDINARY INCOME AND ASSERTED NET LOSS CARRYBACKS FOR THE
PORTION UNUSED IN 1962, PURSUANT TO 26 U.S.C. 172.  TREASURY
REGULATIONS PROVIDE THAT IF, AT THE TIME OF WORTHLESSNESS, THE DEBT HAS
A "PROXIMATE" RELATIONSHIP TO THE TAXPAYER'S BUSINESS, THE DEBT
QUALIFIES AS A BUSINESS BAD DEBT.  IN HIS SUIT FOR A TAX REFUND THE
TAXPAYER TESTIFIED THAT HIS SOLE MOTIVE FOR SIGNING THE INDEMNIFICATION
AGREEMENT WAS TO PROTECT HIS $12,000-A-YEAR EMPLOYMENT WITH THE
CORPORATION.  THE JURY WAS ASKED TO DETERMINE WHETHER SIGNING THE
AGREEMENT "WAS PROXIMATELY RELATED TO HIS TRADE OR BUSINESS OF BEING AN
EMPLOYEE" OF THE CORPORATION.  THE COURT REFUSED THE GOVERNMENT'S
REQUEST FOR AN INSTRUCTION THAT THE APPLICABLE STANDARD WAS THAT OF
DOMINANT MOTIVATION AND CHARGED THE JURY THAT SIGNIFICANT MOTIVATION
SATISFIES THE REGULATIONS' REQUIREMENT OF PROXIMATE RELATIONSHIP.  THE
JURY'S VERDICT WAS FOR THE TAXPAYER AND THE COURT OF APPEALS AFFIRMED,
APPROVING THE SIGNIFICANT-MOTIVATION STANDARD.  HELD: 

1.  IN DETERMINING WHETHER A BAD DEBT HAS A "PROXIMATE" RELATION TO
THE TAXPAYER'S TRADE OR BUSINESS AND THUS QUALIFIES AS A BUSINESS BAD
DEBT, THE PROPER STANDARD IS THAT OF DOMINANT MOTIVATION RATHER THAN
SIGNIFICANT MOTIVATION.  PP. 103-105. 

2.  THERE IS NOTHING IN THE RECORD THAT WOULD SUPPORT A JURY VERDICT
IN THE TAXPAYER'S FAVOR HAD THE DOMINANT-MOTIVATION STANDARD BEEN
EMBODIED IN THE INSTRUCTIONS.  PP. 106-107. 

427 F.2D 279, REVERSED AND REMANDED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART AND MARSHALL, JJ., JOINED AND IN WHICH (AS TO PARTS
I, II, AND III) BRENNAN AND WHITE, JJ., JOINED MARSHALL, J., FILED A
CONCURRING OPINION, POST, P. 107.  WHITE, J., FILED A SEPARATE OPINION,
IN WHICH BRENNAN, J., JOINED, POST, P. 112.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 113.  POWELL AND REHNQUIST, JJ., TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

A DEBT A CLOSELY HELD CORPORATION OWED TO AN INDEMNIFYING
SHAREHOLDER-EMPLOYEE BECAME WORTHLESS IN 1962.  THE ISSUE IN THIS
FEDERAL INCOME TAX REFUND SUIT IS WHETHER, FOR THE SHAREHOLDER
EMPLOYEE, THAT WORTHLESS OBLIGATION WAS A BUSINESS OR NONBUSINESS BAD
DEBT WITHIN THE MEANING AND REACH OF SECS. 166(A) AND (D) OF THE
INTERNAL REVENUE CODE OF 1954, AS AMENDED, 26 U.S.C. 166(A) AND (D),
/1/  AND OF THE IMPLEMENTING REGULATIONS SEC. 1.166-5.  /2/ 

THE ISSUE'S RESOLUTION IS IMPORTANT FOR THE TAXPAYER.  IF THE
OBLIGATION WAS A BUSINESS DEBT, HE MAY USE IT TO OFFSET ORDINARY INCOME
AND FOR CARRYBACK PURPOSES UNDER SEC. 172 OF THE CODE, 26 U.S.C; 172. 
ON THE OTHER HAND, IF THE OBLIGATION IS A NONBUSINESS DEBT, IT IS TO BE
TREATED AS A SHORT-TERM CAPITAL LOSS SUBJECT TO THE RESTRICTIONS
IMPOSED ON SUCH LOSSES BY SEC. 166(D)(1)(B) AND SECS. 1211 AND 1212,
AND ITS USE FOR CARRYBACK PURPOSES IS RESTRICTED BY SEC. 172(D)(4). 
THE DEBT IS ONE OR THE OTHER IN ITS ENTIRETY, FOR THE CODE DOES NOT
PROVIDE FOR ITS ALLOCATION IN PART TO BUSINESS AND IN PART TO
NONBUSINESS. 

IN DETERMINING WHETHER A BAD DEBT IS A BUSINESS OR A NONBUSINESS
OBLIGATION, THE REGULATIONS FOCUS ON THE RELATION THE LOSS BEARS TO THE
TAXPAYER'S BUSINESS.  IF, AT THE TIME OF WORTHLESSNESS, THAT RELATION
IS A "PROXIMATE" ONE, THE DEBT QUALIFIES AS A BUSINESS BAD DEBT AND THE
AFOREMENTIONED DESIRABLE TAX CONSEQUENCES THEN ENSUE. 

THE PRESENT CASE TURNS ON THE PROPER MEASURE OF THE REQUIRED
PROXIMATE RELATION.  DOES THIS NECESSITATE A "DOMINANT" BUSINESS
MOTIVATION ON THE PART OF THE TAXPAYER OF IS A "SIGNIFICANT" MOTIVATION
SUFFICIENT? 

TAX IN AN AMOUNT SOMEWHAT IN EXCESS OF $40,000 IS INVOLVED.  THE
TAXPAYER, ALLEN H. GENERES, /3/  PREVAILED IN A JURY TRIAL IN THE
DISTRICT COURT.  SEE 67-2 U.S.T.C.PARA.  9754 (ED LA.).  ON THE
GOVERNMENT'S APPEAL, THE FIFTH CIRCUIT AFFIRMED BY A DIVIDED VOTE.  427
F.2D 279 (CA5 1970).  CERTIORARI WAS GRANTED, 401 U.S. 972 (1971), TO
RESOLVE A CONFLICT AMONG THE CIRCUITS.  /4/

        I 

THE TAXPAYER AS A YOUNG MAN IN 1909 BEGAN WORK IN THE CONSTRUCTION
BUSINESS.  HIS SON-IN-LAW, WILLIAM F. KELLY, LATER ENGAGED
INDEPENDENTLY IN SIMILAR WORK.  DURING WORLD WAR II THE TWO MEN FORMED
A PARTNERSHIP IN WHICH THEIR PARTICIPATION WAS EQUAL.  THE ENTERPRISE
PROVED SUCCESSFUL.  IN 1954 KELLY-GENERES CONSTRUCTION CO., INC., WAS
ORGANIZED AS THE CORPORATE SUCCESSOR TO THE PARTNERSHIP.  IT ENGAGED IN
THE HEAVY-CONSTRUCTION BUSINESS, PRIMARILY ON PUBLIC WORKS PROJECTS. 

THE TAXPAYER AND KELLY EACH OWNED 44% OF THE CORPORATION'S
OUTSTANDING CAPITAL STOCK.  THE TAXPAYER'S ORIGINAL INVESTMENT IN HIS
SHARES WAS $38,900.  THE REMAINING 12% OF THE STOCK WAS OWNED BY A SON
OF THE TAXPAYER AND BY ANOTHER SON-IN-LAW.  MR. GENERES WAS PRESIDENT
OF THE CORPORATION AND RECEIVED FROM IT AN ANNUAL SALARY OF $12,000. 
MR. KELLY WAS EXECUTIVE VICE-PRESIDENT AND RECEIVED AN ANNUAL SALARY OF
$15,000. 

THE TAXPAYER AND MR. KELLY PERFORMED DIFFERENT SERVICES FOR THE
CORPORATION.  GENERES, ON THE OTHER HAND, DEVOTED NO MORE THAN SIX TO
EIGHT HOURS A WEEK TO THE ENTERPRISE.  HE REVIEWED BIDS AND JOBS, MADE
COST ESTIMATES, SOUGHT AND OBTAINED BANK FINANCING, AND ASSISTED IN
SECURING THE BID AND PERFORMANCE BONDS THAT ARE AN ESSENTIAL PART OF
THE PUBLIC-PROJECT CONSTRUCTION BUSINESS.  MR. GENERES, IN ADDITION TO
BEING PRESIDENT OF THE CORPORATION, HELD A FULL-TIME POSITION AS
PRESIDENT OF A SAVINGS AND LOAN ASSOCIATION HE HAD FOUNDED IN 1937.  HE
RECEIVED FROM THE ASSOCIATION AN ANNUAL SALARY OF $19,000.  THE
TAXPAYER ALSO HAD OTHER SOURCES OF INCOME.  HIS GROSS INCOME AVERAGED
ABOUT $40,000 A YEAR DURING 1959-1962. 

TAXPAYER GENERES FROM TIME TO TIME ADVANCED PERSONAL FUNDS TO THE
CORPORATION TO ENABLE IT TO COMPLETE CONSTRUCTION JOBS.  HE ALSO
GUARANTEED LOANS MADE TO THE CORPORATION BY BANKS FOR THE PURCHASE OF
CONSTRUCTION MACHINERY AND OTHER EQUIPMENT.  IN ADDITION, HIS PRESENCE
WITH RESPECT TO THE BID AND PERFORMANCE BONDS IS OF PARTICULAR
SIGNIFICANCE.  MOST OF THESE WERE OBTAINED FROM MARYLAND CASUALTY CO.
THAT UNDERWRITER REQUIRED THE TAXPAYER AND KELLY TO SIGN AN INDEMNITY
AGREEMENT FOR EACH BOND IT ISSUED FOR THE CORPORATION.  IN 1958,
HOWEVER, IN ORDER TO ELIMINATE THE NEED FOR INDIVIDUAL INDEMNITY
CONTRACTS, TAXPAYER AND KELLY SIGNED A BLANKET AGREEMENT WITH MARYLAND
WHEREBY THEY AGREED TO INDEMNIFY IT, UP TO A DESIGNATED AMOUNT, FOR ANY
LOSS SUFFERED AS SURETY FOR THE CORPORATION.  MARYLAND THEN INCREASED
ITS LINE OF SURETY CREDIT TO $2,000,000.  THE CORPORATION HAD OVER
$14,000,000 GROSS BUSINESS FOR THE PERIOD 1954 THROUGH 1962. 

IN 1962 THE CORPORATION SERIOUSLY UNDERBID TWO PROJECTS AND
DEFAULTED IN ITS PERFORMANCE OF THE PROJECT CONTRACTS.  IT PROVED
NECESSARY FOR MARYLAND TO COMPLETE THE WORK.  MARYLAND THEN SOUGHT
INDEMNITY FROM GENERES AND KELLY.  THE TAXPAYER INDEMNIFIED MARYLAND TO
THE EXTENT OF $162,104.57.  IN THE SAME YEAR HE ALSO LOANED $158,814.49
TO THE CORPORATION TO ASSIST IT IN ITS FINANCIAL DIFFICULTIES.  THE
CORPORATION SUBSEQUENTLY WENT INTO RECEIVERSHIP AND THE TAXPAYER WAS
UNABLE TO OBTAIN REIMBURSEMENT FROM IT. 

IN HIS FEDERAL INCOME TAX RETURN FOR 1962 THE TAXPAYER TOOK HIS LOSS
ON HIS DIRECT LOANS TO THE CORPORATION AS A NONBUSINESS BAD DEBT.  HE
CLAIMED THE INDEMNIFICATION LOSS AS A BUSINESS BAD DEBT AND DEDUCTED IT
AGAINST ORDINARY INCOME.  /5/  LATER HE FILED CLAIMS FOR REFUND FOR
1959-1961, ASSERTING NET OPERATING LOSS CARRYBACKS UNDER SEC. 172 TO
THOSE YEARS FOR THE PORTION, UNUSED IN 1962, OF THE CLAIMED BUSINESS
BAD DEBT DEDUCTION. 

IN DUE COURSE THE CLAIMS WERE MADE THE SUBJECT OF THE JURY TRIAL
REFUND SUIT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA.  AT THE TRIAL MR. GENERES TESTIFIED THAT HIS
SOLE MOTIVE IN SIGNING THE INDEMNITY AGREEMENT WAS TO PROTECT HIS
$12,000-A-YEAR EMPLOYMENT WITH THE CORPORATION.  THE JURY, BY SPECIAL
INTERROGATORY, WAS ASKED TO DETERMINE WHETHER TAXPAYER'S SIGNING OF THE
INDEMNITY AGREEMENT WITH MARYLAND "WAS PROXIMATELY RELATED TO HIS TRADE
OR BUSINESS OF BEING AN EMPLOYEE" OF THE CORPORATION.  THE DISTRICT
COURT CHARGED THE JURY, OVER THE GOVERNMENT'S OBJECTION, THAT
SIGNIFICANT MOTIVATION SATISFIES THE REGULATIONS' REQUIREMENT OF
PROXIMATE RELATIONSHIP.  /6/  THE COURT REFUSED THE GOVERNMENT'S
REQUEST FOR AN INSTRUCTION THAT THE APPLICABLE STANDARD WAS THAT OF
DOMINANT RATHER THAN SIGNIFICANT MOTIVATION.  /7/ 

AFTER TWICE RETURNING TO THE COURT FOR CLARIFICATION OF THE
INSTRUCTION GIVEN, THE JURY FOUND THAT THE TAXPAYER'S SIGNING OF THE
INDEMNITY AGREEMENT WAS PROXIMATELY RELATED TO HIS TRADE OR BUSINESS OF
BEING AN EMPLOYEE OF THE CORPORATION.  JUDGMENT ON THIS VERDICT WAS
THEN ENTERED FOR THE TAXPAYER. 

THE FIFTH CIRCUIT MAJORITY APPROVED THE SIGNIFICANT-MOTIVATION
STANDARD SO SPECIFIED AND AGREED WITH A SECOND CIRCUIT MAJORITY IN
WEDDLE V. COMMISSIONER, 325 F.2D 849, 851 (1963), IN FINDING COMFORT
FOR SO DOING IN THE TORT LAW'S CONCEPT OF PROXIMATE CAUSE.  JUDGE
SIMPSON DISSENTED.  427 F.2D, AT 284.  HE AGREED WITH THE HOLDING OF
THE SEVENTH CIRCUIT IN NIBLOCK V. COMMISSIONER, 417 F.2D 1185 (1969),
AND WITH CHIEF JUDGE LUMBARD, SEPARATELY CONCURRING IN WEDDLE, 325
F.2D, AT 852, THAT DOMINANT AND PRIMARY MOTIVATION IS THE STANDARD TO
BE APPLIED. 

        II 

A. THE FACT RESPONSIBLE FOR THE LITIGATION IS THE TAXPAYER'S DUAL
STATUS RELATIVE TO THE CORPORATION.  GENERES WAS BOTH SHAREHOLDER AND
AN EMPLOYEE.  THESE INTERESTS ARE NOT THE SAME, AND THEIR DIFFERENCES
OCCASION DIFFERENT TAX CONSEQUENCES.  IN TAX JARGON, GENERES' STATUS AS
A SHAREHOLDER WAS A NONBUSINESS INTEREST.  IT WAS CAPITAL IN NATURE AND
IT WAS COMPOSED INITIALLY OF TAX-PAID DOLLARS.  ITS REWARDS WERE
EXPECTATIVE AND WOULD FLOW, NOT FROM PERSONAL EFFORT, BUT FROM
INVESTMENT EARNINGS AND APPRECIATION.  ON THE OTHER HAND, GENERES'
STATUS AS AN EMPLOYEE WAS A BUSINESS INTEREST.  ITS NATURE CENTERED IN
PERSONAL EFFORT AND LABOR, AND SALARY FOR THAT ENDEAVOR WOULD BE
RECEIVED.  THE SALARY WOULD CONSIST OF PRE-TAX DOLLARS. 

THUS, FOR TAX PURPOSES IT BECOMES IMPORTANT AND, INDEED, NECESSARY
TO DETERMINE THE CHARACTER OF THE DEBT THAT WENT BAD AND BECAME
UNCOLLECTIBLE.  DID THE DEBT CENTER ON THE TAXPAYER'S BUSINESS INTEREST
IN THE CORPORATION OR ON HIS NONBUSINESS INTEREST?  IF IT WAS THE
FORMER, THE TAXPAYER DESERVES TO PREVAIL HERE.  TRENT V. COMMISSIONER,
291 F.2D 669 (CA2 1961); JAFFE V. COMMISSIONER, T.C. MEMO PARA. 67,215;
ESTATE OF SAPERSTEIN V. COMMISSIONER, T.C. MEMO PARA. 70,209; FAUCHER
V. COMMISSIONER, T.C. MEMO PARA. 70,217; ROSATI V. COMMISSIONER, T.C.
MEMO PARA. 70,343; REV. RUL. 71-561, 1971-50 INT. REV. BULL.  13. 

B. ALTHOUGH ARISING IN SOMEWHAT DIFFERENT CONTEXTS, TWO TAX CASES
DECIDED BY THE COURT IN RECENT YEARS MERIT INITIAL MENTION.  IN EACH OF
THESE CASES A MAJOR SHAREHOLDER PAID OUT MONEY TO OR ON BEHALF OF HIS
CORPORATION AND THEN WAS UNABLE TO OBTAIN REIMBURSEMENT FROM IT.  IN
EACH HE CLAIMED A DEDUCTION ASSERTABLE AGAINST ORDINARY INCOME.  IN
EACH HE WAS UNSUCCESSFUL IN HIS QUEST: 

1.  IN PUTNAM V. COMMISSIONER, 352 U.S. 82 (1956), THE TAXPAYER WAS
A PRACTICING LAWYER WHO HAD GUARANTEED OBLIGATIONS OF A LABOR NEWSPAPER
CORPORATION IN WHICH HE OWNED STOCK.  HE CLAIMED HIS LOSS AS FULLY
DEDUCTIBLE IN 1948 UNDER SEC. 23(E)(2) OF THE 1939 CODE.  THE STANDARD
PRESCRIBED BY THAT STATUTE WAS INCURRENCE OF THE LOSS "IN ANY
TRANSACTION ENTERED INTO FOR PROFIT, THOUGH NOT CONNECTED WITH THE
TRADE OR BUSINESS."  THE COURT REJECTED THIS APPROACH AND HELD THAT THE
LOSS WAS A NONBUSINESS BAD DEBT SUBJECT TO SHORT-TERM CAPITAL LOSS
TREATMENT UNDER SEC. 23(K)(4).  THE LOSS WAS DEDUCTIBLE AS A BAD DEBT
OR NOT AT ALL.  SEE REV. RUL. 60-48, 1960-1 CUM. BULL.  112. 

2.  IN WHIPPLE V. COMMISSIONER, 373 U.S. 193 (1963), THE TAXPAYER HAD
PROVIDED ORGANIZATIONAL, PROMOTIONAL, AND MANAGERIAL SERVICES TO A
CORPORATION IN WHICH HE OWNED APPROXIMATELY AN 80% STOCK INTEREST.  HE
CLAIMED THAT THIS CONSTITUTED A TRADE OR BUSINESS AND, HENCE, THAT
DEBTS OWING HIM BY THE CORPORATION WERE BUSINESS BAD DEBTS WHEN THEY
BECAME WORTHLESS IN 1953.  THE COURT ALSO REJECTED THAT CONTENTION AND
HELD THAT WHIPPLE'S INVESTING WAS NOT A TRADE OR BUSINESS, THAT IS,
THAT "(DEVOTING ONE'S TIME AND ENERGIES TO THE AFFAIRS OF A CORPORATION
IS NOT OF ITSELF, AND WITHOUT MORE, A TRADE OR BUSINESS OF THE PERSON
SO ENGAGED."  373 U.S.,AT 202.  THE RATIONALE WAS THAT A CONTRARY
CONCLUSION WOULD BE INCONSISTENT WITH THE PRINCIPLE THAT A CORPORATION
HAS A PERSONALITY SEPARATE FROM ITS SHAREHOLDERS AND THAT ITS BUSINESS
IS NOT NECESSARILY THEIR BUSINESS.  THE COURT INDICATED ITS APPROVAL OF
THE REGULATIONS' PROXIMATE-RELATION TEST: 

"MOREOVER, THERE IS NO PROOF (WHICH MIGHT BE DIFFICULT TO FURNISH
WHERE THE TAXPAYER IS THE SOLE OR DOMINANT STOCKHOLDER) THAT THE LOAN
WAS NECESSARY TO KEEP HIS JOB OR WAS OTHERWISE PROXIMATELY RELATED TO
MAINTAINING HIS TRADE OR BUSINESS AS AN EMPLOYEE.  COMPARE TRENT V.
COMMISSIONER, (291 F.2D 669 (CA2 1961))."  373 U.S.,AT 204.  THE COURT
ALSO CAREFULLY NOTED THE DISTINCTION BETWEEN THE BUSINESS AND THE
NONBUSINESS BAD DEBT FOR ONE WHO IS BOTH AN EMPLOYEE AND A
SHAREHOLDER.  /8/ 

THESE TWO CASES APPROACH, BUT DO NOT GOVERN, THE PRESENT ONE.  THEY
INDICATE, HOWEVER, A CAUTIOUS AND NOT A FREE-WHEELING APPROACH TO THE
BUSINESS BAD DEBT.  OBVIOUSLY, TAXPAYER GENERES ENDEAVORED TO FRAME HIS
CASE TO BRING IT WITHIN THE AREA INDICATED IN THE ABOVE QUOTATION FROM
WHIPPLE V. COMMISSIONER. 

III 

WE CONCLUDE THAT IN DETERMINING WHETHER A BAD DEBT HAS A "PROXIMATE"
RELATION TO THE TAXPAYER'S TRADE OR BUSINESS, AS THE REGULATIONS
SPECIFY, AND THUS QUALIFIES AS A BUSINESS BAD DEBT, THE PROPER MEASURE
IS THAT OF DOMINANT MOTIVATION, AND THAT ONLY SIGNIFICANT MOTIVATION IS
NOT SUFFICIENT.  WE REACH THIS CONCLUSION FOR A NUMBER OF REASONS: 

A. THE CODE ITSELF CAREFULLY DISTINGUISHES BETWEEN BUSINESS AND
NONBUSINESS ITEMS.  IT DOES SO, FOR EXAMPLE, IN SEC. 165 WITH RESPECT
TO LOSSES, IN SEC. 166 WITH RESPECT TO BAD DEBTS, AND IN SEC. 162 WITH
RESPECT TO EXPENSES.  IT GIVES PARTICULAR TAX BENEFITS TO BUSINESS
LOSSES, BUSINESS BAD DEBTS, AND BUSINESS EXPENSES, AND GIVES LESSER
BENEFITS, OR NONE AT ALL, TO NONBUSINESS LOSSES, NONBUSINESS BAD DEBTS,
AND NONBUSINESS EXPENSES.  IT DOES THIS DESPITE THE FACT THAT THE
LATTER ARE JUST AS ADVERSE IN FINANCIAL COUSEQUENCE TO THE TAXPAYER AS
ARE THE FORMER.  BUT THIS DISTINCTION HAS BEEN A POLICY OF THE INCOME
TAX STRUCTURE EVER SINCE THE REVENUE ACT OF 1916, SEC. 5(A), 39 STAT.
759, PROVIDED DIFFERENTLY FOR TRADE OR BUSINESS LOSSES THAN IT DID FOR
LOSSES SUSTAINED IN ANOTHER TRANSACTION ENTERED INTO FOR PROFIT.  AND
IT HAS BEEN THE SPECIFIC POLICY WITH RESPECT TO BAD DEBTS SINCE THE
REVENUE ACT OF 1942 INCORPORATED INTO SEC. 23(K) OF THE 1939 CODE THE
DISTINCTION BETWEEN BUSINESS AND NONBUSINESS BAD DEBTS.  56 STAT. 820. 

THE POINT, HOWEVER, IS THAT THE TAX STATUTES HAVE MADE THE
DISTINCTION, THAT THE CONGRESS THEREFORE INTENDED IT TO BE A MEANINGFUL
ONE, AND THAT THE DISTINCTION IS NOT TO BE OBLITERATED OR BLUNTED BY AN
INTERPRETATION THAT TENDS TO EQUATE THE BUSINESS BAD DEBT WITH THE
NONBUSINESS BAD DEBT.  WE THINK THAT EMPHASIS UPON THE SIGNIFICANT
RATHER THAN UPON THE DOMINANT WOULD HAVE A TENDENCY TO DO JUST THAT. 
B. APPLICATION OF THE SIGNIFICANT-MOTIVATION STANDARD WOULD ALSO TEND
TO UNDERMINE AND CIRCUMSCRIBE THE COURT'S HOLDING IN WHIPPLE AND THE
EMPHASIS THERE THAT A SHAREHOLDER'S MERE ACTIVITY IN A CORPORATION'S
AFFAIRS IS NOT A TRADE OR BUSINESS.  AS CHIEF JUDGE LUMBARD POINTED OUT
IN HIS SEPARATE AND DISAGREEING CONCURRENCE IN WEDDLE, SUPRA, 325 F.2D,
AT 852-853, BOTH MOTIVES-- THAT OF PROTECTING THE INVESTMENT AND THAT
OF PROTECTING THE SALARY-- ARE INEVITABLY INVOLVED, AND AN INQUIRY
WHETHER EMPLOYEE STATUS PROVIDES A SIGNIFICANT MOTIVATION WILL AWLAYS
PRODUCE AN AFFIRMATIVE ANSWER AND RESULT IN A JUDGMENT FOR THE
TAXPAYER. 

C. THE DOMINANT-MOTIVATION STANDARD HAS THE ATTRIBUTE OF
WORKABILITY.  IT PROVIDES A GUIDELINE OF CERTAINTY FOR THE TRIER OF
FACT.  THE TRIER THEN MAY COMPARE THE RISK AGAINST THE POTENTIAL REWARD
AND GIVE PROPER EMPHASIS TO THE OBJECTIVE RATHER THAN TO THE
SUBJECTIVE.  AS HAS JUST BEEN NOTED, AN EMPLOYEE-SHAREHOLDER, IN MAKING
OR GUARANTEEING A LOAN TO HIS CORPORATION, USUALLY ACTS WITH TWO
MOTIVATIONS, THE ONE TO PROTECT HIS INVESTMENT AND THE OTHER TO PROTECT
HIS EMPLOYMENT.  BY MAKING THE DOMINANT MOTIVATION THE MEASURE, THE
LOGICAL TAX CONSEQUENCE ENSUES AND PREVENTS THE MERE PRESENCE OF A
BUSINESS MOTIVE, HOWEVER SMALL AND HOWEVER INSIGNIFICANT, FROM
CONTROLLING THE TAX RESULT AT THE TAXPAYER'S CONVENIENCE.  THIS IS OF
PARTICULAR IMPORTANCE IN A TAX SYSTEM THAT IS SO LARGELY DEPENDENT ON
VOLUNTARY COMPLIANCE. 

D. THE DOMINANT-MOTIVATION TEST STRENGTHENS AND IS CONSISTENT WITH
THE MANDATE OF SEC. 262 OF THE CODE, 26 U.S.C. 262, THAT "NO DEDUCTION
SHALL BE ALLOWED FOR PERSONAL, LIVING, OR FAMILY EXPENSES" EXCEPT AS
OTHERWISE PROVIDED.  IT PREVENTS PERSONAL CONSIDERATIONS FROM
CIRCUMVENTING THIS PROVISION. 

E. THE DOMINANT-MOTIVATION APPROACH TO SEC. 166(D) IS CONSISTENT
WITH THAT GIVEN THE LOSS PROVISION IN SEC. 165(C)(1), SEE, FOR EXAPMLE,
IMBESI V. COMMISSIONER, 361 F.2D 640, 644 (CA3 1966), AND IN SEC.
165(C)(2), SEE AUSTIN V. COMMISSIONER, 298 F.2D 583, 584 (CA2 1962). 
IN THESE RELATED AREAS, CONSISTENCY IS DESIRABLE.  SEE ALSO,
COMMISSIONER V. DUBERSTEIN, 363 U.S. 278, 286 (1960). 

F. WE SEE NO INCONSISTENCY, SUCH AS THE TAXPAYER SUGGESTS, BETWEEN
THE GOVERNMENT'S URGING DOMINANT MOTIVATION HERE AND ITS HAVING URGED
ONLY SIGNIFICANT MOTIVATION AS THE APPROPRIATE STANDARD FOR THE
INCURRENCE OF LIABILITY FOR THE ACCUMULATED-EARNINGS TAX UNDER SEC. 531
OF THE 1954 CODE, 26 U.S.C. 531, AND FOR INCLUDABILITY IN THE GROSS
ESTATE, FOR FEDERAL ESTATE TAX PURPOSES, OF A TRANSFER MADE IN
CONTEMPLATION OF DEATH UNDER SEC. 2035, 26 U.S.C. 2035.  SECTIONS 531
AND 2035 ARE CONGRESS' ANSWER TO TAX AVOIDANCE ACTIVITY.  UNITED STATES
V. DONRUSS CO., 393 U.S. 297, 303 (1969), AND FARMERS' LOAN & TRUST CO.
V. BOWERS, 98 F.2D 794 (CA 1938), CERT. DENIED, 306 U.S. 648 (1939). 

G. THE REGULATIONS' USED OF THE WORD "PROXIMATE" PERHAPS IS NOT THE
MOST FORTUNATE, FOR IT NATURALLY TEMPTS ONE TO THINK IN TORT TERMS. 
THE TEMPTATION, HOWEVER, IS BEST REJECTED, AND WE REJECT IT HERE.  IN
TORT LAW FACTORS OF DUTY, OF FORESEEABILITY, OF SECONDARY CAUSE, AND OF
PLURAL LIABILITY ARE UNDER CONSIDERATION, AND THE CONCEPT OF PROXIMATE
CAUSE HAS BEEN DEVELOPED AS AN APPROPRIATE APPLICATION AND MEASURE OF
THESE FACTORS.  IT HAS LITTLE PLACE IN TAX LAW WHERE PLURAL ASPECTS ARE
NOT USUAL, WHERE AN ITEM EITHER IS OR IS NOT A DEDUCTION, OR EITHER IS
OR IS NOT A BUSINESS BAD DEBT, AND WHERE CERTAINTY IS DESIRABLE. 

        IV 

THE CONCLUSION WE HAVE REACHED MEANS THAT THE DISTRICT COURT'S
INSTRUCTION, BASED ON A STANDARD OF SIGNIFICANT RATHER THAN DOMINANT
MOTIVATION, ARE ERRONEOUS AND THAT, AT LEAST, A NEW TRIAL IS REQUIRED. 
WE HAVE EXAMINED THE RECORD, HOWEVER, AND FIND NOTHING THAT WOULD
SUPPORT A JURY VERDICT IN THIS TAXPAYER'S FAVOR HAD THE DOMINANT
MOTIVATION STANDARD BEEN EMBODIED IN THE INSTRUCTIONS.  JUDGMENT N.O.V.
FOR THE UNITED STATES, THEREFORE, MUST BE ORDERED.  SEE NEELY V. ELBY
CONSTRUCTION CO., 386 U.S. 317 (1967). 

AS JUDGE SIMPSON POINTED OUT IN HIS DISSENT, 427 F.2D, AT 284-285, THE
ONLY REAL EVIDENCE OFFERED BY THE TAXPAYER BEARING UPON MOTIVATION WAS
HIS OWN TESTIMONY THAT HE SIGNED THE INDEMNITY AGREEMENT "TO PROTECT MY
JOB," THAT "I FIGURED IN THREE YEARS' TIME I WOULD GET MY MONEY OUT,"
AND THAT "I NEVER ONCE GAVE IT (HIS INVESTMENT IN THE CORPORATION) A
THOUGHT."  /9/ 

THE STATEMENTS OBVIOUSLY ARE SELF-SERVING.  IN ADDITION, STANDING
ALONE, THEY DO NOT BEAR THE LIGHT OF ANALYSIS.  WHAT THE TAXPAYER WAS
PURPORTING TO SAY WAS THAT HIS $12,000 ANNUAL SALARY WAS HIS SOLE
MOTIVATION, AND THAT HIS $38,900 ORIGINAL INVESTMENT, THE ACTUAL VALUE
OF WHICH PRIOR TO THE MISFORTUNES OF 1962 WE DO NOT KNOW, PLUS HIS
LOANS TO THE CORPORATION, PLUS HIS PERSONAL INTEREST IN THE INTEGRITY
OF THE CORPORATION AS A SOURCE OF LIVING FOR HIS SON-IN-LAW AND AS AN
INVESTMENT FOR HIS SON AND HIS OTHER SON-IN-LAW, WERE OF NO CONSEQUENCE
WHATEVER IN HIS THINKING.  THE COMPARISON IS STRAINED ALL THE MORE BY
THE FACT THAT THE SALARY IS PRE-TAX AND THE INVESTMENT IS TAXPAID. 
WITH HIS TOTAL ANNUAL INCOME ABOUT $40,000, MR. GENERES MAY WELL HAVE
REACHED A FEDERAL INCOME TAX BRACKET OF 40% OR MORE FOR A JOINT RETURN
IN 1958-1962.  SECS. 1 AND 2 OF THE 1954 CODE, 68A STAT. 5 AND 8.  THE
$12,000 SALARY THUS WOULD PRODUCE FOR HIM ONLY ABOUT $7,000 NET AFTER
FEDERAL TAX AND BEFORE ANY STATE INCOME TAX.  THIS IS THE FIGURE, AND
NOT $12,000, THAT HAS ANY POSSIBLE SIGNIFICANCE FOR MOTIVATION
PURPOSES, AND IT IS LESS THAN 1/5 OF THE ORIGINAL STOCK INVESTMENT. 
/10/ 

WE CONCLUDE ON THESE FACTS THAT THE TAXPAYER'S EXPLANATION FALLS OF
ITS OWN WEIGHT, AND THAT REASONABLE MINDS COULD NOT ASCRIBE, ON THIS
RECORD, A DOMINANT MOTIVATION DIRECTED TO THE PRESERVATION OF THE
TAXPAYER'S SALARY AS PRESIDENT OF KELLY-GENERES CONSTRUCTION CO., INC. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED WITH DIRECTION
THAT JUDGMENT BE ENTERED FOR THE UNITED STATES. 

             IT IS SO ORDERED. 

/1/  "SEC.  166.  BAD DEBTS. 

"(A) GENERAL RULE.-- 

"(1) WHOLLY WORTHLESS DEBTS.-- THERE SHALL BE ALLOWED AS A DEDUCTION
ANY DEBT WHICH BECOMES WORTHLESS WITHIN THE TAXABLE YEAR. 

        .          .          .          . 

"(D) NONBUSINESS DEBTS.-- 

(1) GENERAL RULE.-- IN THE CASE OF A TAXPAYER OTHER THAN A
CORPORATION-- 

"(A) SUBSECTIONS (A) AND (C) SHALL NOT APPLY TO ANY NONBUSINESS
DEBT; AND 

"(B) WHERE ANY NONBUSINESS DEBT BECOMES WORTHLESS WITHIN THE TAXABLE
YEAR, THE LOSS RESULTING THEREFROM SHALL BE CONSIDERED A LOSS FROM THE
SALE OR EXCHANGE, DURING THE TAXABLE YEAR, OF A CAPITAL ASSET HELD FOR
NOT MORE THAN 6 MONTHS. 

"(2) NONBUSINESS DEBT DEFINED.-- FOR PURPOSES OF PARAGRAPH (1), THE
TERM 'NONBUSINESS DEBT' MEANS A DEBT OTHER THAN-- 

"(A) A DEBT CREATED OR ACQUIRED (AS THE CASE MAY BE) IN CONNECTION
WITH A TRADE OR BUSINESS OF THE TAXPAYER; OR 

"(B) A DEBT THE LOSS FROM THE WORTHLESSNESS OF WHICH IS INCURRED IN
THE TAXPAYER'S TRADE OR BUSINESS." 

/2/  TREAS. REG. ON INCOME TAX: 

"26 CFR 1.166-5 NONBUSINESS DEBTS. 

     .          .          .          . 

"(B) NONBUSINESS DEBT DEFINED.  FOR PURPOSES OF SECTION 166 AND THIS

        .      .          .          . 

"(2) A DEBT THE LOSS FROM THE WORTHLESSNESS OF WHICH IS INCURRED IN
THE TAXPAYER'S TRADE OR BUSINESS.  THE QUESTION WHETHER A DEBT IS A
NONBUSINESS DEBT IS A QUESTION OF FACT IN EACH PARTICULAR CASE.  . . .
FOR PURPOSES OF SUBPARAGRAPH (2) OF THIS PARAGRAPH, THE CHARACTER OF
THE DEBT IS TO BE DETERMINED BY THE RELATION WHICH THE LOSS RESULTING
FROM THE DEBT'S BECOMING WORTHLESS BEARS TO THE TRADE OR BUSINESS OF
THE TAXPAYER.  IF THAT RELATION IS A PROXIMATE ONE IN THE CONDUCT OF
THE TRADE OR BUSINESS IN WHICH THE TAXPAYER IS ENGAGED AT THE TIME THE
DEBT BECOMES WORTHLESS, THE DEBT COMES WITHIN THE EXCEPTION PROVIDED BY
THAT SUBPARAGRAPH.  . . . " 

/3/  EDNA GENERES, WIFE OF ALLEN H. GENERES, IS NAMED PARTLY BECAUSE
JOINT INCOME TAX RETURNS WERE FILED BY MR. AND MRS. GENERES FOR SOME OF
THE TAX YEARS IN QUESTION. 

/4/  COMPARE THE DECISION BELOW AND WEDDLE V. COMMISSIONER, 325 F.2D
849 (CA2 1963), WITH NIBLOCK V. COMMISSIONER, 417 F.2D 1185 (CA7
1969).  IN SMITH V. COMMISSIONER, 55 T.C. 260, 268-271 (1970), REVIEWED
WITHOUT DISSENT, THE TAX COURT FELT CONSTRAINED, UNDER THE POLICY
EXPRESSED IN GOLSEN V. COMMISSIONER, 54 T.C. 742 (1970), AFF'D, 445
F.2D 985 (CA10 1971), TO APPLY THE FIFTH CIRCUIT TEST BUT STATED THAT
IT AGREED WITH THE SEVENTH CIRCUIT.  CASES WHERE THE RESOLUTION OF THE
ISSUE WAS AVOIDED INCLUDE STRATMORE V. UNITED STATES, 420 F.2D 461 (CA3
1970), CERT. DENIED, 398 U.S. 951; KELLY V. PATTERSON, 331 F.2D 753,
757 (CA5 1964); AND GILLESPIE V. COMMISSIONER, 54 T.C. 1025, 1032
(1970).  SEE, ALSO, MILLSAP V. COMMISSIONER, 387 F.2D 420 (CA8 1968). 
FOR COMMENTARY ON THE PRESENT CASE, SEE 3 SW.U.L.REV.  135 (1971); 2
TEX.TECH.L.REV.  318 (1971); AND 28 WASH.& LEE L.REV.  161 (1971). 

/5/  THIS DIFFERENCE IN TREATMENT BETWEEN THE LOSS ON THE DIRECT
LOAN AND THAT ON THE INDEMNITY IS NOT EXPLAINED.  SEE, HOWEVER, WHIPPLE
V. COMMISSIONER, 373 U.S. 193 (1963). 

/6/  "A DEBT IS PROXIMATELY RELATED TO THE TAXPAYER'S TRADE OR
BUSINESS WHEN ITS CREATION WAS SIGNIFICANTLY MOTIVATED BY THE
TAXPAYER'S TRADE OR BUSINESS, AND IT IS NOT RENDERED A NON-BUSINESS
DEBT MERELY BECAUSE THERE WAS A NON-QUALIFYING MOTIVATION AS WELL, EVEN
THOUGH THE NON-QUALIFYING MOTIVATION WAS THE PRIMARY ONE." 

/7/  "YOU MUST, IN SHORT, DETERMINE WHETHER MR. GENERES' DOMINANT
MOTIVATION IS SIGNING THE INDEMNITY AGREEMENT WAS TO PROTECT HIS SALARY
AND STATUS AS AN EMPLOYEE OR WAS TO PROTECT HIS INVESTMENT IN THE KELLY
GENERES CONSTRUCTION CO. 

"MR. GENERES IS ENTITLED TO PREVAIL IN THIS CASE ONLY IF HE
CONVINCES YOU THAT THE DOMINANT MOTIVATING FACTOR FOR HIS SIGNING THE
INDEMNITY AGREEMENT WAS TO INSURE THE RECEIVING OF HIS SALARY FROM THE
COMPANY.  IT IS INSUFFICIENT IF THE PROTECTION OR INSURANCE OF HIS
SALARY WAS ONLY A SIGNIFICANT SECONDARY MOTIVATION FOR HIS SIGNING THE
INDEMNITY AGREEMENT.  IT MUST HAVE BEEN HIS DOMINANT OR MOST IMPORTANT
REASON FOR SIGNING THE INDEMNITY AGREEMENT." 

/8/  "EVEN IF THE TAXPAYER DEMONSTRATES AN INDEPENDENT TRADE OR
BUSINESS OF HIS OWN, CARE MUST BE TAKEN TO DISTINGUISH BAD DEBT LOSSES
ARISING FROM HIS OWN BUSINESS AND THOSE ACTUALLY ARISING FROM
ACTIVITIES PECULIAR TO AN INVESTOR CONCERNED WITH, AND PARTICIPATING
IN, THE CONDUCT OF THE CORPORATE BUSINESS."  373 U.S.,AT 202. 

/9/  APP. 67 AND 59. 

/10/  RATHER THAN 1/3, AS THE TAXPAYER IN HIS TESTIMONY SUGGESTED,
APP. 59, OVERLOOKING THE PRE-TAX CHARACTER OF HIS SALARIED EARNINGS. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE MARSHALL, CONCURRING. 

I AGREE WITH AND JOIN THE OPINION OF THE COURT.  IN DOING SO I ADD A
FEW ADDITIONAL WORDS OF LEGISLATIVE HISTORY IN SUPPORT OF THE WORDING
OF THE INTERNAL REVENUE CODE ITSELF. 

IT IS NOW WELL-ESTABLISHED LAW THAT A CORPORATE EMPLOYEE IS ENTITLED
TO DEDUCT AS A BUSINESS BAD DEBT A BAD DEBT INCURRED BECAUSE OF HIS
EMPLOYEE STATUS-- E.G., A LOAN MADE TO PROTECT HIS JOB WHICH BECOMES
UNRECOVERABLE.  SEE, E.G., TRENT V. COMMISSIONER, 291 F.2D 669 (CA2
1961); LUNDGREN V. COMMISSIONER, 376 F.2D 623 (CA9 1967); SMITH V.
COMMISSIONER, 55 T.C. 260 (1970).  SEE ALSO WHIPPLE V. COMMISSIONER,
373 U.S. 193, 201 (1963).  THE LAW IS EQUALLY WELL ESTABLISHED,
HOWEVER, THAT A SHAREHOLDER IS NOT ENTITLED TO A BUSINESS BAD-DEBT
DEDUCTION WHEN A LOAN WHICH HE HAS MADE TO ENHANCE HIS STOCK INTEREST
IN A CORPORATION GOES BAD. 

THE TAXPAYER IN THIS CASE IS BOTH AN EMPLOYEE AND A SHAREHOLDER OF A
SINGLE CORPORATION, AND THE QUESTION THUS PRESENTED IS HOW TO DETERMINE
THE PROPER TAX TREATMENT OF LOANS MADE BY HIM TO THE CORPORATION THAT
BECAME UNCOLLECTIBLE. 

THE INTERNAL REVENUE CODE ITSELF DOES NOT OFFER ANY TEST FOR
DETERMINING WHEN A BAD DEBT IS A BUSINESS BAD DEBT, BUT SEC. 1.166-5(B)
OF THE TREASURY REGULATIONS ON INCOME TAX PROVIDES THAT A LOSS FROM A
WORTHLESS DEBT IS DEDUCTIBLE AS A BUSINESS BAD DEBT ONLY IF THE
RELATION BETWEEN THE LOSS AND TAXPAYER'S TRADE OR BUSINESS IS A
PROXIMATE ONE.  THE COMMISSIONER CONTENDS THAT THE TAXPAYER MUST
DEMONSTRATE THAT THE "PRIMARY AND DOMINANT" MOTIVATION FOR THE
UNDERTAKING THAT GAVE RISE TO THE BAD DEBT WAS ATTRIBUTABLE TO HIS
STATUS AS AN EMPLOYEE, AND NOT AS A SHAREHOLDER, IN ORDER TO COMPLY
WITH THE REGULATION.  IT IS THE TAXPAYER'S POSITION THAT THE PROXIMATE
RELATIONSHIP IS SUFFICIENTLY DEMONSTRATED IF THE UNDERTAKING GIVING
RISE TO THE BAD DEBT WAS "SIGNIFICANTLY" MOTIVATED BY HIS EMPLOYEE
STATUS.  THE DISTRICT COURT AND COURT OF APPEALS AGREED WITH THE
TAXPAYER. 

THE OPINION OF THE COURT PROPERLY CONCLUDES THAT ACCEPTANCE OF THE
TEST ADVOCATED BY THE TAXPAYER WOULD BLUNT SOMEWHAT THE DISTINCTION
BETWEEN BUSINESS AND NONBUSINESS EXPENSES, AND THAT THE COMMISSIONER'S
TEST IS SLIGHTLY MORE CONSISTENT WITH THE THRUST OF VARIOUS SECTIONS OF
THE INTERNAL REVENUE CODE.  WERE THIS ALL WE HAD TO WORK WITH, HOWEVER,
I WOULD BE AS TORN BETWEEN THE TWO TESTS AS THE LOWER COURTS HAVE
BEEN.  COMPARE WEEDLE V. COMMISSIONER, 325 F.2D 849 (CA2 1963), WITH
NIBLOCK V. COMMISSIONER, 417 F.2D 1185 (CA7 1969), AND SMITH V.
COMMISSIONER, 55 T.C. 260 (1970).  AS THE COURT'S OPINION POINTS OUT,
CONGRESS DID NOT CHOOSE TO APPORTION THE TAX TREATMENT OF BAD DEBTS
ACCORDING TO THE STRENGTH OF THE VARIOUS INTERESTS OF THE TAXPAYER THAT
GAVE RISE TO THEM.  LEFT WITH AN ALL-OR-NOTHING APPROACH AND NO
LEGISLATIVE HISTORY, ONE MIGHT WELL CONCLUDE THAT CONGRESS DID INTEND
TO BLUNT THE DISTINCTION BETWEEN BUSINESS AND NONBUSINESS BAD DEBTS,
ESPECIALLY SINCE NEITHER THE LANGUAGE OF THE CODE NOR THE REGULATIONS
EXPLICITLY REQUIRE ONE TEST OR THE OTHER, AND SINCE THE BURDEN ON THE
TAXPAYER OF BOTH TYPES OF LOSSES IS IDENTICAL.  FORTUNATELY, THERE IS A
CLEAR AND COMPELLING LEGISLATIVE HISTORY THAT OBVIATES ANY NEED FOR
SPECULATION AS TO CONGRESS' INTENT IN ENACTING SEC. 166 OF THE CODE, 26
U.S.C. 166.  AND, ONLY THE COMMISSIONER'S TEST IS CONSISTENT WITH THAT
INTENT.     PRIOR TO 1942 THE INTERNAL REVENUE CODE TREATED BUSINESS
AND NONBUSINESS BAD DEBTS IDENTICALLY.  BUT, IN THAT YEAR, CONGRESS
AMENDED SEC. 23(K) OF THE 1939 CODE IN ORDER TO DISTINGUISH BETWEEN THE
TWO.  A NONBUSINESS BAD DEBT WAS DEFINED AS ONE "OTHER THAN A DEBT THE
LOSS FROM THE WORTHLESSNESS OF WHICH IS INCURRED IN THE TAXPAYER'S
TRADE OR BUSINESS," AND BUSINESS BAD DEBTS PRESUMABLY ENCOMPASSED ALL
OTHERS.  THE DEMARCATION REMAINS ESSENTIALLY THE SAME UNDER SEC. 166 OF
THE 1954 CODE EXCEPT THAT THE DEFINITION OF BUSINESS BAD DEBTS IS
EXPANDED FOR THE LIMITED PURPOSE OF INCLUDING WITHIN IT "A DEBT CREATED
OR ACQUIRED . . . IN CONNECTION WITH A TRADE OR BUSINESS OF THE
TAXPAYER" BUT NOT "INCURRED IN" THE BUSINESS-- E.G., A DEBT GROWING OUT
OF A TRADE OR BUSINESS THAT BECOMES WORTHLESS UNDER CIRCUMSTANCES
REMOVED FROM THE TRADE OR BUSINESS.  SEE H.R. REP. NO. 1337, 83D CONG.,
2D SESS., 21-22; S. REP. NO. 1622, 83D CONG., 2D SESS., 24; WHIPPLE V.
COMMISSIONER, SUPRA, AT 194 N. 1; TRENT V. COMMISSIONER, SUPRA, AT
674. 

THE MAJOR CONGRESSIONAL PURPOSE IN DISTINGUISHING BETWEEN BUSINESS
AND NONBUSINESS BAD DEBTS WAS TO PREVENT TAXPAYERS FROM LENDING MONEY
TO FRIENDS OR RELATIVES WHO THEY KNEW WOULD NOT REPAY IT AND THEN
DEDUCTING AGAINST ORDINARY INCOME A LOSS IN THE AMOUNT OF THE LOAN. 
PRIOR TO THE 1942 AMENDMENT OF THE CODE, IT WAS APPARENT THAT TAXPAYERS
COULD GO A LONG WAY TOWARD ESCAPING THE CODE'S MONETARY LIMIT ON
DEPENDENCY DEDUCTIONS AND ITS PROHIBITION AGAINST DEDUCTIONS FOR
PERSONAL EXPENSES BY CASTING SUPPORT PAYMENTS, GIFTS, AND OTHER
EXPENDITURES IN THE FORM OF LOANS DESTINED TO BECOME BAD DEBTS.  H.R.
REP. NO. 2333, 77TH CONG., 2D SESS., 45, 76-77; S. REP. NO. 1631, 77TH
CONG., 2D SESS., 90. 

A RELATED CONGRESSIONAL PURPOSE IN ENACTING THE PREDECESSOR TO SEC.
166 WAS "TO PUT NONBUSINESS INVESTMENTS IN THE FORM OF LOANS ON A
FOOTING WITH OTHER NONBUSINESS INVESTMENTS."  PUTNAM V. COMMISSIONER,
352 U.S. 82, 92 (1956).  CONGRESS RECOGNIZED THAT THERE OFTEN IS ONLY A
MINOR DIFFERENCE, IF ANY, BETWEEN AN INVESTMENT IN THE FORM OF A STOCK
PURCHASE AND ONE IN THE FORM OF A LOAN TO A CORPORATION.  SEE, E.G.,
KELLEY CO. V. COMMISSIONER, 326 U.S. 521 (1946); BOWERSOCK MILLS &
POWER CO. V. COMMISSIONER, 172 F.2D 904 (CA10 1949). 

IT IS APPARENT THAT CONGRESS WAS ESPECIALLY CONCERNED ABOUT THE
POSSIBILITY THAT CLOSELY HELD FAMILY BUSINESSES MIGHT EXPLOIT THE
TECHNICAL DIFFERENCES AMONG THE FORMS IN WHICH INVESTMENTS CAN BE CAST
IN ORDER TO GAIN UNWARRANTED DEDUCTIONS AGAINST ORDINARY INCOME. 

THIS CASE IS A PERFECT EXAMPLE OF HOW THE "SIGNIFICANT" MOTIVATION
TEST UNDERCUTS THE INTENDED EFFECT OF THE STATUTE.  THE TAXPAYER WAS
DRAWING AN ANNUAL SALARY OF $12,000 FROM A FAMILY CORPORATION IN WHICH
HE HAD INVESTED ALMOST $200,000.  AS THE GUARANTOR OF THE CORPORATION'S
PERFORMANCE AND PAYMENT CONSTRUCTION BONDS, THE TAXPAYER RISKED A
POTENTIAL LIABILITY OF $2,000,000 AND ULTIMATELY INCURRED AN ACTUAL
LIABILITY OF $162,000, WHICH IS THE AMOUNT THAT HE SOUGHT TO DEDUCT AS
A BUSINESS BAD DEBT.  THE JURY FOUND THAT THE RISK WAS INCURRED BECAUSE
THE TAXPAYER WAS "SIGNIFICANTLY" MOTIVATED BY HIS INTERESTS AS A
CORPORATE EMPLOYEE AND BY HIS $12,000 SALARY.  IN VIEW OF ALL THE FACTS
SET FORTH IN THE OPINION OF THE COURT, ESPECIALLY THE FACT THAT THE
TAXPAYER HAD A GROSS INCOME OF APPROXIMATELY $40,000, I HAVE NO DOUBT
WHATEVER THAT THE SAME JURY WOULD HAVE FOUND THAT THE TAXPAYER'S
"PRIMARY AND DOMINANT" MOTIVATION WAS TO PROTECT HIS INVESTMENT, NOT
HIS SALARY. 

IF THIS TAXPAYER HAD SIMPLY LENT HIS SON-IN-LAW $162,000 AND THEN
SOUGHT TO DEDUCT THAT AMOUNT AS A BUSINESS BAD DEBT WHEN THE LATTER'S
BUSINESS COLLAPSED, HE PLAINLY COULD NOT HAVE PREVAILED.  THIS WAS JUST
THE SORT OF INTRA-FAMILY LOAN THAT CONGRESS INTENDED TO BAR FROM
TREATMENT AS A BUSINESS BAD DEBT.  THE FACT THAT A CORPORATION SERVED
AS A CONDUIT FOR THE LOAN SHOULD MAKE NO DIFFERENCE.  IF THE TAXPAYER
HAD RECEIVED ONLY INTEREST ON THE LOAN RATHER THAN A SALARY, HE COULD
CLAIM NO BUSINESS BAD-DEBT DEDUCTION.  THE FACT THAT HE TOOK A NOMINAL
SALARY FOR NOMINAL SERVICES DOES NOT, IN MY OPINION, REQUIRE A
DIFFERENT RESULT.  MOREOVER, IF INSTEAD OF GUARANTEEING THE
CONSTRUCTION BONDS, THE TAXPAYER HAD INVESTED $162,000 IN THE
CORPORATION TO STRENGTHEN ITS ECONOMIC POSITION, THAT INVESTMENT WOULD
RECEIVE THE SAME TREATMENT AS THE PRIOR INVESTMENT OF $200,000 AND ANY
LOSS WOULD NOT BE DEDUCTIBLE AGAINST ORDINARY INCOME.  THE FACT THAT
THE INTRA-FAMILY CONTRIBUTION WAS MADE IN THE FORM OF A GUARANTEE
SHOULD BE IRRELEVANT FOR INCOME TAX PURPOSES. 

IN SUM, I FIND THAT THE "SIGNIFICANT" MOTIVATION TEST PRODUCES
RESULTS THAT ARE TOTALLY AT ODDS WITH THE GOALS OF THE STATUTE.  THE
CONCLUSION THAT I DRAW FROM THE LEGISLATIVE HISTORY IS THAT CONGRESS
WANTED TO PERMIT DEDUCTIONS AGAINST ORDINARY INCOME FOR BAD-DEBT LOSSES
ONLY WHEN THE LOSSES BORE THE SAME RELATION TO THE TAXPAYER'S TRADE OR
BUSINESS AS DID OTHER LOSSES THAT THE CODE PERMITS TO BE DEDUCTED
AGAINST ORDINARY INCOME.  UNDER SEC. 165(C)(1) OF THE CODE, 26 U.S.C.
165(C)(1), THE PRIMARY-MOTIVATION TEST HAS ALWAYS BEEN USED TO
DETERMINE WHETHER THESE OTHER LOSSES ARE INCURRED IN A TRADE OR
BUSINESS OR IN SOME OTHER CAPACITY, SEE, E.G., IMBESI V. COMMISSIONER,
361 F.2D 640 (CA3 1966), UNITED STATES V. GILMORE, 372 U.S. 39 (1963). 
THE SAME TEST SHOULD ALSO BE UTILIZED WITH RESPECT TO BAD DEBTS IF
CONGRESS' WILL IS TO BE DONE. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN JOINS. 

WHILE I JOIN PARTS I, II, AND III OF THE COURT'S OPINION AND ITS
JUDGMENT OF REVERSAL, I WOULD REMAND THE CASE TO THE DISTRICT COURT
WITH DIRECTIONS TO HOLD A HEARING ON THE ISSUE OF WHETHER A JURY
QUESTION STILL EXISTS AS TO WHETHER TAXPAYER'S MOTIVATION WAS
"DOMINANTLY" A BUSINESS ONE IN THE RELEVANT TRANSACTIONS UNDER 26
U.S.C. 166(A) AND (D).  FEDERAL RULE OF CIVIL PROCEDURE 50(D) PROVIDES
THAT WHEN AN APPELLATE COURT CONSIDERS A MOTION FOR JUDGMENT N.O.V., IT
MAY "DETERMINE) THAT THE APPELLEE IS ENTITLED TO A NEW TRIAL, OR . . .
(DIRECT) THE TRIAL COURT TO DETERMINE WHETHER A NEW TRIAL SHALL BE
GRANTED."  BECAUSE OF THE DRASTIC NATURE OF A JUDGMENT N.O.V., THIS
COURT HAS EMPHASIZED THAT SUCH MOTIONS SHOULD BE GRANTED ONLY WHEN THE
PROCEDURAL PREREQUISITES OF THE FEDERAL RULES HAVE BEEN STRICTLY
COMPLIED WITH.  CONE V. WEST VIRGINIA PULP & PAPER CO., 330 U.S. 212,
215-217 (1947).  IN THE PRESENT CASE, THIS COURT HAS THE POWER TO
REVERSE THE JUDGMENT WITHOUT THE GRANT OF A NEW TRIAL SINCE THE
GOVERNMENT PROPERLY MOVED FOR A JUDGMENT N.O.V. (OR, IN THE
ALTERNATIVE, FOR A NEW TRIAL) IN THE DISTRICT COURT.  NEELY V. ELBY
CONSTRUCTION CO., 386 U.S. 317 (1967).  THE CIRCUMSTANCES HERE ARE
INAPPROPRIATE FOR SUCH A DECISION, HOWEVER, SINCE TAXPAYER HAS NEVER
HAD AN OPPORTUNITY TO BE HEARD, AFTER IT IS DETERMINED THAT HIS VERDICT
CANNOT STAND, AS TO WHETHER FACTUAL ISSUES REMAIN ON WHICH HE IS
ENTITLED TO A NEW TRIAL.  A DECISION THAT A VERDICT MUST BE OVERTURNED
BECAUSE THE TRIAL JUDGE APPLIED AN ERRONEOUS EVIDENTIARY STANDARD IS
UNLIKE CERTAIN OTHER APPELLATE RULINGS THAT AN ERROR OF LAW WAS MADE
BECAUSE IT INEVITABLY PRESENTS AN ACCOMPANYING FACTUAL QUESTION:  IS
THERE ENOUGH EVIDENCE TO PRESENT A JURY QUESTION UNDER THE PROPER
EVIDENTIARY STANDARD?  NEELY V. EBY CONSTRUCTION CO., SUPRA, AT 327. 
THIS COURT HAS OFTEN REPEATED THAT A TRIAL COURT IS THE MOST
APPROPRIATE TRIBUNAL TO DETERMINE SUCH FACTUAL QUESTIONS, FAIRMOUNT
GLASS WORKS V. CUB FORK COAL CO., 287 U.S. 474, 481-482 (1933);
MONTGOMERY WARD & CO. V. DUNCAN, 311 U.S. 243, 253 (1940), SINCE
APPELLATE COURTS ARE AWKWARDLY EQUIPPED TO RESOLVE SUCH ISSUES,
PARTICULARLY IN THE ABSENCE OF ADVERSARY ARGUMENT, AND SINCE THE TRIAL
JUDGE HAS AN EXTENSIVE AND INTIMATE KNOWLEDGE OF THE EVIDENCE AND
ISSUES "IN A PERSPECTIVE PECULIARLY AVAILABLE TO HIM ALONE."  CONE V.
WEST VIRGINIA PULP & PAPER CO., SUPRA, AT 216.  I WOULD THEREAFORE
ALLOW THE TRIAL COURT TO DECIDE WHETHER A NEW TRIAL IS MERITED IN THIS
CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE TREASURY REGULATIONS SEC. 1.166-5(B)(2), WHICH GOVERN THIS CASE,
PROVIDE THAT "THE CHARACTER OF THE DEBT IS TO BE DETERMINED BY THE
RELATION WHICH THE LOSS RESULTING FROM THE DEBT'S BECOMING WORTHLESS
BEARS TO THE TRADE OR BUSINESS OF THE TAXPAYER."  THE REGULATIONS DO
NOT USE THE WORDS "PRIMARY AND DOMINANT."  THEY STATE:  "IF THAT
RELATION IS A PROXIMATE ONE IN THE CONDUCT OF THE TRADE OR BUSINESS IN
WHICH THE TAXPAYER IS ENGAGED AT THE TIME THE DEBT BECOMES WORTHLESS,"
THE DEBT IS DEDUCTIBLE.  IBID. 

THE JURY WAS INSTRUCTED IN THE WORDS OF THE REGULATIONS:  "DO YOU
FIND FROM A PREPONDERANCE OF THE EVIDENCE THAT THE SIGNING OF THE
BLANKET INDEMNITY AGREEMENT BY MR. GENERES WAS PROXIMATELY RELATED TO
HIS TRADE OR BUSINESS OF BEING AN EMPLOYEE OF THE KELLY-GENERES
CONSTRUCTION COMPANY?"  THE JURY UNANIMOUSLY ANSWERED "YES." 

THERE WAS EVIDENCE TO SUPPORT THE FINDING.  GENERES WAS AN OFFICER
OF THE COMPANY AND RECEIVED A SALARY OF $12,000 A YEAR.  HIS JOB AS
OFFICER WAS TO OBTAIN THE BONDING CREDIT NEEDED BY THE COMPANY TO
PERFORM THE JOBS ON WHICH IT BID.  TO GET THE BOND GENERES, THE
PRESIDENT, AND KELLY, THE VICE-PRESIDENT, WERE REQUIRED TO SIGN
PERSONALLY AN INDEMNITY AGREEMENT. 

THE BOND WAS ESSENTIAL IF THE COMPANY WAS TO OPERATE.  WITHOUT THE
BOND THE COMPANY COULD NOT OBTAIN BUSINESS AND, IF THAT HAPPENED, HE AS
AN OFFICER WOULD LOSE HIS JOB.  IT THEREFORE SEEMS TO ME THAT SIGNING
THE BOND HAD A "PROXIMATE" RELATION TO HIS BUSINESS AS A SALARIED
OFFICER IN THE SENSE THAT IT WAS DIRECTLY RELATED TO THE HOPED-FOR
SUCCESS OF THAT BUSINESS. 

WHETHER IT WAS A PRUDENT ACT IS NOT OUR CONCERN.  NOR IS IT OUR
CONCERN WHETHER WITH THE BENEFIT OF HINDSIGHT WE CAN NOW SAY THAT
SIGNING THE BOND ENTAILED RISKS WHOLLY DISPROPORTIONATE TO THE STAKE
GENERES HAD IN MAINTAINING A JOB WITH A $12,000-A-YEAR SALARY. 

OBTAINING A BOND WAS ESSENTIAL TO THE CORPORATION; AND IT WAS ONLY
BY KEEPING THE BUSINESS GOING THAT THE SALARIED POSITION OF GENERES
COULD BE MADE SECURE.  IF THE REGULATIONS DO NOT MEET THE DESIRES OF
THE TREASURY DEPARTMENT, THEY CAN BE REWRITTEN.  SEE HELVERING V.
WILSHIRE OIL CO., 308 U.S. 90, 100-102. 

I PROTEST NOW WHAT I HAVE REPEATEDLY PROTESTED, AND THAT IS THE USE
OF THIS COURT TO IRON OUT AMBIGUITIES IN THE REGULATIONS OR IN THE ACT,
WHEN THE RESPONSIBLE REMEDY IS EITHER A RECASTING OF THE REGULATIONS BY
TREASURY ON PRESENTATION OF THE PROBLEM TO THE JOINT COMMITTEE ON
INTERNAL REVENUE TAXATION WHICH IS A STANDING COMMITTEE OF THE CONGRESS
/1/  THAT REGULARLY REWRITES THE ACT AND IS MUCH ABLER THAN ARE WE TO
FORECAST REVENUE NEEDS AND SPOT LOOPHOLES WHERE ABUSES THRIVE. 

AS I SAID IN COMMISSIONER V. LESTER, 366 U.S. 299, 307, "RESORT TO
LITIGATION, RATHER THAN TO CONGRESS, FOR A CHANGE IN THE LAW IS TOO
OFTEN THE TEMPTATION OF GOVERNMENT WHICH HAS A LONGER PURSE AND MORE
ENDURANCE THAN ANY TAXPAYER."  (CONCURRING OPINION.)  AND SEE KNETSCH
V. UNITED STATES, 364 U.S. 361, 371 (DISSENTING OPINION). 

HAD I VOTED TO GRANT THIS PETITION I WOULD BE IN A POSITION TO VOTE
TO DISMISS IT AS IMPROVIDENTLY GRANTED.  BUT TO GIVE INTEGRITY TO THE
"RULE OF FOUR" BY WHICH CERTIORARI IS GRANTED /2/  THE OBJECTORS MUST
PARTICIPATE IN A DECISION, AS STATED AT LENGTH BY THE LATE MR. JUSTICE
HARLAN IN FERGUSON V. MOORE-MCCORMACK LINES, 352 U.S. 521, 559-562. 

IN THAT VIEW I CANNOT SAY THAT ON THE FACTS OF THIS CASE THE LOSS
DID NOT HAVE A "PROXIMATE" RELATION TO THIS CORPORATE OFFICER'S
BUSINESS OF KEEPING THE ENTERPRISE AFLOAT.  I WOULD AFFIRM THE COURT OF
APPEALS, 427 F.2D 279. 

/1/  SEE UNITED STATES V. SKELLY OIL CO., 394 U.S. 678, 690-691
(DISSENTING OPINION). 

/2/  THE "RULE OF FOUR" IS NOT IN THE STATUTE.  BUT IN THE HEARINGS
ON THE BILL THAT BECAME THE 1925 ACT, MR. JUSTICE VAN DEVANTER, WHO
HEADED THE COMMITTEE OF THE COURT SPONSORING THE ACT BEFORE THE
CONGRESS, SAID: 

"FOR INSTANCE, IF THERE WERE FIVE VOTES AGAINST GRANTING THE
PETITION AND FOUR IN FAVOR OF GRANTING IT, IT WOULD BE GRANTED, BECAUSE
WE PROCEED UPON THE THEORY THAT WHEN AS MANY AS FOUR MEMBERS OF THE
COURT, AND EVEN THREE IN SOME INSTANCES, ARE IMPRESSED WITH THE
PROPRIETY OF OUR TAKING THE CASE THE PETITION SHOULD BE GRANTED.  THIS
IS THE UNIFORM WAY IN WHICH PETITIONS FOR WRITS OF CERTIORARI ARE
CONSIDERED."  HEARING ON S. 2060 AND S. 2061 BEFORE A SUBCOMMITTEE OF
THE SENATE COMMITTEE ON THE JUDICIARY, 68TH CONG., 1ST SESS., 29
(1924). 

AND THE CONGRESS ACTED IN RELIANCE ON THAT REPRESENTATION.  SEE H.R.
REP. NO. 1075, 68TH CONG., 2D SESS., 3. 

THE BILL WAS ORIGINALLY DRAFTED IN 1922 BY CHIEF JUSTICE TAFT WITH
THE ASSISTANCE OF MR. JUSTICE DAY, MR. JUSTICE VAN DEVANTER, AND MR.
JUSTICE MCREYNOLDS.  HEARINGS ON JURISDICTION OF CIRCUIT COURT OF
APPEALS AND UNITED STATES SUPREME COURT BEFORE THE HOUSE COMMITTEE ON
THE JUDICIARY, 67TH CONG., 2D SESS. (1922).  THE COMMITTEE REPRESENTING
THE COURT IN THE 1924 HEARINGS WERE MR. JUSTICE VAN DEVANTER, MR.
JUSTICE MCREYNOLDS, AND MR. JUSTICE SUTHERLAND.  HEARING ON S. 2060 AND
S. 2061, SUPRA, AT 1.     MATTHEW J. ZINN ARGUED THE CAUSE FOR THE
UNITED STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL WALTERS, AND ERNEST J. BROWN. 

MAX NATHAN, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 
..END :



NLRB V. SCRIVENER, 405 U.S. 117 


       NATIONAL LABOR RELATIONS BOARD V. SCRIVENER, DBA AA ELECTRIC

           CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 70-267.  ARGUED JANUARY 12, 1972-- DECIDED FEBRUARY 23,

           1972 


EMPLOYER'S DISCHARGE OF EMPLOYEES BECAUSE THEY GAVE WRITTEN SWORN
STATEMENTS TO A NATIONAL LABOR RELATIONS BOARD FIELD EXAMINER
INVESTIGATING AN UNFAIR LABOR PRACTICE CHARGE FILED AGAINST THE
EMPLOYER, BUT WHO HAD NEITHER FILED THE CHARGE NOR TESTIFIED AT A
FORMAL HEARING ON THE CHARGE, CONSTITUTED A VIOLATION OF SEC. 8(A)(4)
OF THE NATIONAL LABOR RELATIONS ACT.  PP. 121-125. 

435 F.2D 1296, REVERSED AND REMANDED. 

BLACKMUN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

140, 29 U.S.C. 158, PROVIDES:

     "SEC.  8 (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 7;

.          .          .          . 

     "(4) TO DISCHARGE OR OTHERWISE DISCRIMINATE AGAINST AN
EMPLOYEE

  BECAUSE HE HAS FILED CHARGES OR GIVEN TESTIMONY UNDER THIS ACT." 

       .          .          .          . SECTION 7 OF THE ACT, AS
AMENDED, 61 STAT. 140, 29 U.S.C. 157, PROVIDES: 

"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 . . . .

  " 

THIS CASE PRESENTS THE ISSUE WHETHER AN EMPLOYER'S RETALIATORY
DISCHARGE OF AN EMPLOYEE WHO GAVE A WRITTEN SWORN STATEMENT TO A
NATIONAL LABOR RELATIONS BOARD FIELD EXAMINER INVESTIGATING AN UNFAIR
LABOR PRACTICE CHARGE FILED AGAINST THE EMPLOYER, BUT WHO HAD NOT FILED
THE CHARGE OR TESTIFIED AT A FORMAL HEARING ON IT, CONSTITUTES A
VIOLATION OF SEC. 8(A)(1) OR OF SEC. 8(A)(4) OF THE ACT.  THE BOARD,
WITH ONE MEMBER NOT PARTICIPATING, UNANIMOUSLY HELD THAT IT WAS.  177
N.L.R.B. 504 (1969).  THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT BY A UNANIMOUS PANEL VOTE, HELD OTHERWISE AND DENIED
ENFORCEMENT.  435 F.2D 1296 (1971).  THE COURT OF APPEALS DID NOT REACH
OTHER ISSUES RAISED BY THE EMPLOYER.  WE GRANTED CERTIORARI IN ORDER TO
REVIEW A DECISION THAT APPEARED TO HAVE AN IMPORTANT IMPACT UPON THE
ADMINISTRATION OF THE ACT.  404 U.S. 821 (1971). 

        I 

THERE IS TESTIMONY IN THE RECORD, CREDITED BY THE TRIAL EXAMINER AND
ADOPTED BY THE BOARD, TO THE FOLLOWING EFFECT: 

THE RESPONDENT ROBERT SCRIVENER IS A SMALL ELECTRICAL CONTRACTOR IN
SPRINGFIELD, MISSOURI.  HE DOES BUSINESS AS AN INDIVIDUAL PROPRIETOR
UNDER THE NAME OF AA ELECTRIC COMPANY.  ON MARCH 18, 1968, FIVE OF
SCRIVENER'S SIX EMPLOYEES SIGNED CARDS AUTHORIZING A UNION /1/  TO
REPRESENT THEM IN COLLECTIVE BARGAINING.  THE NEXT DAY BUSINESS AGENT
MOORE ADVISED MR. SCRIVENER OF THE UNION'S MAJORITY STATUS AND ASKED TO
NEGOTIATE A CONTRACT.  SCRIVENER EXAMINED THE CARDS, BUT REFUSED THE
REQUEST. 

MR. SCRIVENER THEN VISITED HIS JOBSITES AND COMPLAINED TO HIS
EMPLOYEES ABOUT THEIR ACTION.  ON MARCH 20 HE DISMISSED CARD-SIGNERS
COCKRUM, SMITH, AND WILSON, AND HIRED HUNT, A JOURNEYMAN, AND STATTON,
A HELPER.  HUNT HAD WORKED FOR SCRIVENER ON PRIOR OCCASIONS. 

ON MARCH 21 THE UNION FILED CHARGES WITH THE BOARD ALLEGING THAT THE
COMPANY HAD VIOLATED SECS. 8(A)(1), (3), AND (5) OF THE ACT.  ON MARCH
26 THE THREE DISCHARGEES RETURNED TO WORK.  THE NEXT DAY, HOWEVER,
COCKRUM AND SMITH AGAIN WERE RELEASED ON THE GROUND THAT THERE WAS A
LACK OF WORK.  THE TWO NEW EMPLOYEES AND PERRYMAN, THE SOLE NONSIGNER
AMONG THE SIX ORIGINAL EMPLOYEES, WERE RETAINED.  SMITH WAS AGAIN
RECALLED ON APRIL 1 AND, WITH THE OTHER CARD-SIGNERS, EXCEPT COCKRUM,
CONTINUED TO WORK UNTIL APRIL 18. 

ON APRIL 17 A FIELD EXAMINER FROM THE BOARD'S REGIONAL OFFICE MET
WITH MR. SCRIVENER AND DISCUSSED THE CHARGES THAT HAD BEEN FILED.  THAT
EVENING THE EXAMINER INTERVIEWED THE FIVE CARD-SIGNERS AT THE UNION
HALL.  HE TOOK AFFIDAVITS OR SWORN STATEMENTS FROM ALL EXCEPT COCKRUM
WHO WAS NOT THEN WORKING FOR SCRIVENER.  ON APRIL 18 SCRIVENER INQUIRED
OF AT LEAST TWO OF THE MEN WHETHER THEY HAD MET AND BEEN INTERVIEWED BY
THE EXAMINER THE EVENING BEFORE.  AT THE END OF THE DAY SCRIVENER
DISMISSED THE FOUR WHO HAD GIVEN THE STATEMENTS; HE DID SO WITH THE
EXPLANATION THAT HE HAD NO WORK FOR THEM TO DO.  PERRYMAN, HUNT, AND
STATTON CONTINUED TO WORK ON THE THREE HOUSES AND THE 11-UNIT APARTMENT
BUILDING THE COMPANY HAD UNDER CONSTRUCTION AT THE TIME. 

ON MAY 13 THE UNION FILED AN AMENDED CHARGE ADDING THE ALLEGATION
THAT THE DISMISSAL OF THE FOUR MEN ON APRIL 18 WAS BECAUSE THEY HAD
GIVEN THE STATEMENTS TO THE EXAMINER IN CONNECTION WITH THE EARLIER
CHARGE, AND THAT THIS WAS A VIOLATION OF SEC. 8(A)(1) AND SEC.
8(A)(4).  THREE OF THE MEN RETURNED TO WORK IN MAY OR EARLY JUNE.  THE
FOURTH WAS NEVER RECALLED. 

A COMPLAINT WAS ISSUED ON BOTH THE ORIGINAL CHARGE AND THE ADDED
ALLEGATION. 

        II 

THE BOARD, IN AGREEMENT WITH THE TRIAL EXAMINER, CONCLUDED THAT THE
APRIL 18 DISMISSAL OF THE FOUR EMPLOYEES WAS "IN RETALIATION AGAINST
THEM FOR HAVING MET WITH AND GIVEN EVIDENCE TO A BOARD FIELD EXAMINER
INVESTIGATING UNFAIR LABOR PRACTICE CHARGES WHICH HAD BEEN FILED
AGAINST" SCRIVENER; THAT "(THE INVESTIGATION OF CHARGES FILED IS AN
INTEGRAL AND ESSENTIAL STAGE OF BOARD PROCEEDINGS"; AND THAT THIS
CONDUCT VIOLATED SEC. 8(A)(1) AND SEC. 8(A)(4).  177 N.L.R.B.,AT 504. 
THE CUSTOMARY ORDER TO CEASE AND DESIST, TO REINSTATE THE FOUR
EMPLOYEES WITH BACK PAY, AND TO POST NOTICES WAS ISSUED.  THE BOARD
CONCLUDED, HOWEVER, IN DISAGREEMENT WITH THE TRIAL EXAMINER AND WITH
ONE MEMBER DISSENTING, "THAT IT WILL NOT EFFECTUATE THE POLICIES OF THE
ACT FOR THE BOARD TO ASSERT JURISDICTION HEREIN OVER THE ALLEGED
INDEPENDENT AND UNRELATED VIOLATIONS OF SECTION 8(A)(1), (3), AND (5)
OF THE ACT," AND DISMISSED THOSE PORTIONS OF THE COMPLAINT.  ID., AT
504, 505. 

THE COURT OF APPEALS, PER CURIAM, RELYING ON ITS EARLIER DECISION IN
NLRB V. RITCHIE MFG. CO., 354 F.2D 90 (CA8 1965), HELD THAT SEC.
8(A)(4) DOES NOT "ENCOMPASS DISCHARGE OF EMPLOYEES FOR GIVING WRITTEN
SWORN STATEMENTS TO BOARD FIELD EXAMINERS."  IN RITCHIE THE COURT HAD
STATED, "WE ARE RELUCTANT TO HOLD THAT SEC. 8(A)(4) CAN BE EXTENDED TO
COVER PRELIMINARY PREPARATIONS FOR GIVING TESTIMONY."  354 F.2D, AT
101.  /2/  IN THE PRESENT CASE, THE COURT REFUSED TO UPHOLD THE BOARD'S
FINDING THAT THE CHALLENGED DISCHARGES VIOLATED SEC. 8(A)(1) AS WELL AS
SEC. 8(A)(4) SINCE "(TO DO SO WOULD BE TO OVERRULE RITCHIE IMPLICITLY,
AND WE ARE NOT PREPARED TO TAKE THAT ACTION."  435 F.2D, AT 1297. 

 III 

THE VIEW OF THE COURT OF APPEALS IS THAT SEC. 8(A)(4) OF THE ACT
SERVES TO PROTECT AN EMPLOYEE AGAINST AN EMPLOYER'S REPRISAL ONLY FOR
FILING AN UNFAIR LABOR PRACTICE CHARGE OR FOR GIVING TESTIMONY AT A
FORMAL HEARING, AND THAT IT AFFORDS HIM NO PROTECTION FOR OTHERWISE
PARTICIPATING IN THE INVESTIGATIVE STAGE OR, IN PARTICULAR, FOR GIVING
AN AFFIDAVIT OR SWORN STATEMENT TO THE INVESTIGATING FIELD EXAMINER. 

WE DISAGREE FOR SEVERAL REASONS. 

1.  CONSTRUING SEC. 8(A)(4) TO PROTECT THE EMPLOYEE DURING THE
INVESTIGATIVE STAGES, AS WELL AS IN CONNECTION WITH THE FILING OF A
FORMAL CHARGE OR THE GIVING OF FORMAL TESTIMONY, COMPORTS WITH THE
OBJECTIVE OF THAT SECTION.  MR. JUSTICE BLACK, IN NO UNCERTAIN TERMS,
SPELLED OUT THE CONGRESSIONAL PURPOSE: 

"CONGRESS HAS MADE IT CLEAR THAT IT WISHES ALL PERSONS WITH
INFORMATION ABOUT SUCH PRACTICES TO BE COMPLETELY FREE FROM COERCION
AGAINST REPORTING THEM TO THE BOARD.  THIS IS SHOWN BY ITS ADOPTION OF
SEC. 8(A)(4) WHICH MAKES IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO
DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE HE HAS FILED CHARGES.  AND IT
HAS BEEN HELD THAT IT IS UNLAWFUL FOR AN EMPLOYER TO SEEK TO RESTRAIN
AN EMPLOYEE IN THE EXERCISE OF HIS RIGHT TO FILE CHARGES" (CITATIONS
OMITTED).  NASH V. FLORIDA INDUSTRIAL COMM'N, 389 U.S. 235, 288
(1967).  THIS COMPLETE FREEDOM IS NECESSARY, IT HAS BEEN SAID, "TO
PREVENT THE BOARD'S CHANNELS OF INFORMATION FROM BEING DRIED UP BY
EMPLOYER INTIMIDATION OF PROSPECTIVE COMPLAINANTS AND WITNESSES."  JOHN
HANCOCK MUT. LIFE INS. CO. V. NLRB, 89 U.S.APP.D.C. 261, 263, 191 F.2D
483, 485 (1951).  IT IS ALSO CONSISTENT WITH THE FACT THAT THE BOARD
DOES NOT INITIATE ITS OWN PROCEEDINGS; IMPLEMENTATION IS DEPENDENT
"UPON THE INITIATIVE OF INDIVIDUAL PERSONS."  NASH V. FLORIDA
INDUSTRIAL COMM'N, SUPRA, 389 U.S.,AT 238; NLRB V. INDUSTRIAL UNION OF
MARINE & SHIPBUILDING WORKERS, 391 U.S. 418, 424 (1968). 

2.  THE ACT'S REFERENCE IN SEC. 8(A)(4) TO AN EMPLOYEE WHO "HAS
FILED CHARGES OR GIVEN TESTIMONY," COULD BE READ STRICTLY AND CONFINED
IN ITS REACH TO FORMAL CHARGES AND FORMAL TESTIMONY.  IT CAN ALSO BE
READ MORE BROADLY.  ON TEXTUAL ANALYSIS ALONE, THE PRESENCE OF THE
PRECEDING WORDS "TO DISCHARGE OR OTHERWISE DISCRIMINATE" REVEALS, WE
THINK, PARTICULARLY BY THE WORD "OTHERWISE," AND INTENT ON THE PART OF
CONGRESS TO AFFORD BROAD RATHER THAN NARROW PROTECTION TO THE
EMPLOYEE.  THIS WOULD BE CONSISTENT WITH SEC. 8(A)(4)'S PURPOSE AND
OBJECTIVE HEREINABOVE DESCRIBED.  A SIMILAR QUESTION WITH RESPECT TO
THE WORD "EVIDENCE" IN SECS. 11(1) AND (2) OF THE ACT, 29 U.S.C. 161(1)
AND (2), WAS CONSIDERED IN NLRB V. WYMAN-GORDON CO., 394 U.S. 759, 768
769 (1969), AND WAS RESOLVED BY A BROAD AND NOT A NARROW CONSTRUCTION. 
/3/  THAT PRECEDENT IS PERTINENT HERE. 

3.  THIS BROAD INTERPRETATION OF SEC. 8(A)(4) ACCORDS WITH THE LABOR
BOARD'S VIEW ENTERTAINED FOR MORE THAN 35 YEARS.  SECTION 8(A)(4) HAD
ITS ORIGIN IN THE NATIONAL INDUSTRIAL RECOVERY ACT, 48 STAT. 195. 
EXECUTIVE ORDER NO. 6711, ISSUED MAY 15, 1934, UNDER THAT ACT (10 NRA
CODES OF FAIR COMPETITION 949), PROVIDED, "NO EMPLOYER . . . SHALL
DISMISS OR DEMOTE ANY EMPLOYEE FOR MAKING A COMPLAINT OR GIVING
EVIDENCE WITH RESPECT TO AN ALLEGED VIOLATION . . . . "  THE FIRST
LABOR BOARD INTERPRETED THAT PHRASE TO PROTECT THE EMPLOYEE NOT ONLY AS
TO FORMAL TESTIMONY, BUT ALSO AS TO THE GIVING OF INFORMATION RELATING
TO VIOLATIONS OF THE NIRA.  NEW YORK RAPID TRANSIT CORP., 1
N.L.R.B.DEC.  192 (1934) (AFFIDAVITS); RALPH A. FREUNDLICH, INC., 2
N.L.R.B.DEC.  147, 148 (1935) (STATE COURT TESTIMONY).  IN SEC. 8(A)(4)
THE WORD "TESTIMONY," RATHER THAN "EVIDENCE," APPEARS.  BUT THE NEW
LANGUAGE WAS DESCRIBED AS "MERELY A REITERATION" OF THE EXECUTIVE ORDER
LANGUAGE AND IT WAS STATED THAT THE "NEED FOR THIS PROVISION IS
ATTESTED" BY THE ABOVE-CITED BOARD DECISIONS.  COMPARISON OF S. 2926
(73D CONG.) AND 2.  1958 (74TH CONG.), SENATE COMMITTEE PRINT 29, 1
LEG.HIST.OF NATIONAL LABOR RELATIONS ACT 1319, 1355 (1949).  /4/ 

4.  THIS INTERPRETATION, IN OUR VIEW, ALSO SQUARES WITH THE
PRACTICALITIES OF APPROPRIATE AGENCY ACTION.  AN EMPLOYEE WHO
PARTICIPATES IN A BOARD INVESTIGATION MAY NOT BE CALLED FORMALLY TO
TESTIFY OR MAY BE DISCHARGED BEFORE ANY HEARING AT WHICH HE COULD
TESTIFY.  HIS CONTRIBUTION MIGHT BE MERELY CUMULATIVE OR THE CASE MAY
BE SETTLED OR DISMISSED BEFORE HEARING.  WHICH EMPLOYEES RECEIVE
STATUTORY PROTECTION SHOULD NOT TURN ON THE VAGARIES OF THE SELECTION
PROCESS OR ON OTHER EVENTS THAT HAVE NO RELATION TO THE NEED FOR
PROTECTION.  IT WOULD MAKE LESS THAN COMPLETE SENSE TO PROTECT THE
EMPLOYEE BECAUSE HE PARTICIPATES IN THE FORMAL INCEPTION OF THE PROCESS
(BY FILING A CHARGE) OR IN THE FINAL, FORMAL PRESENTATION, BUT NOT TO
PROTECT HIS PARTICIPATION IN THE IMPORTANT DEVELOPMENTAL STAGES THAT
FALL BETWEEN THESE TWO POINTS IN TIME.  THIS WOULD BE UNEQUAL AND
INCONSISTENT PROTECTION AND IS NOT THE PROTECTION NEEDED TO PRESERVE
THE INTEGRITY OF THE BOARD PROCESS IN ITS ENTIRETY.  /5/ 

5.  THE BOARD'S SUBPOENA POWER ALSO SUPPORTS THIS INTERPRETATION. 
"THE PURPOSE OF ALL HEARINGS AND INVESTIGATIONS."  ONCE AN EMPLOYEE HAS
BEEN SUBPOENAED HE SHOULD BE PROTECTED FROM RETALIATORY ACTION
REGARDLESS OF WHETHER HE HAS FILED A CHARGE OR HAS ACTUALLY TESTIFIED. 
JUDGE LUMBARD PERTINENTLY DESCRIBED IT: 

"IT IS, WE THINK, A PERMISSIBLE INFERENCE THAT CONGRESS INTENDED THE
PROTECTION TO BE AS BROAD AS THE (SUBPOENA) POWER."  PEDERSEN V. NLRB,
234 F.2D 417, 420 (CA2 1956).  UNDER THIS REASONING, IF EMPLOYEES OF
SCRIVENER HAD BEEN SUBPOENAED, THEY WOULD HAVE BEEN PROTECTED.  THERE
IS NO BASIS FOR DENYING SIMILAR PROTECTION TO THE VOLUNTARY
PARTICIPANT. 

6.  THE APPROACH TO SEC. 8(A)(4) GENERALLY HAS BEEN A LIBERAL ONE IN
ORDER FULLY TO EFFECTUATE THE SECTION'S REMEDIAL PURPOSE.  IN M & S
STEEL CO. V. NLRB, 353 F.2D 80 (CA5 1965), THE COURT SUSTAINED THE
BOARD'S FINDING, 148 N.L.R.B. 789, 792-795 (1964), THAT SEC. 8(A)(4)
WAS VIOLATED BY THE DISCHARGE OF AN EMPLOYEE, WILLIAMS, BECAUSE HE GAVE
A STATEMENT TO A FIELD EXAMINER.  IN NLRB V. DAL-TEX OPTICAL CO., 310
F.2D 58, 60-61 (CA5 1962), THE COURT SUSTAINED THE BOARD, 131 N.L.R.B.
713, 721 (1961), IN AFFORDING PROTECTION TO AN EMPLOYEE, WHITAKER, WHO
APPEARED BUT DID NOT TESTIFY AT A BOARD HEARING.  SEE JOHN HANCOCK MUT.
LIFE INS. CO. V. NLRB, SUPRA, AND NLRB V. SYRACUSE STAMPING CO., 208
F.2D 77, 79-80 (CA2 1953).  /6/ 

WE ARE AWARE OF NO SUBSTANTIAL COUNTERVAILING CONSIDERATIONS.  WE
THEREFORE CONCLUDE THAT AN EMPLOYER'S DISCHARGE OF AN EMPLOYEE BECAUSE
THE EMPLOYEE GAVE A WRITTEN SWORN STATEMENT TO A BOARD FIELD EXAMINER
INVESTIGATING AN UNFAIR LABOR PRACTICE CHARGE FILED AGAINST THE
EMPLOYER CONSTITUTES A VIOLATION OF SEC. 8(A)(4) OF THE NATIONAL LABOR
RELATIONS ACT. 

HAVING REACHED THIS CONCLUSION, IT IS UNNECESSARY FOR US TO
DETERMINE WHETHER THE EMPLOYER'S ACTION IS ALSO A VIOLATION OF SEC.
8(A)(1), AND WE EXPRESSLY REFRAIN FROM SO DOING.              IV 

A FINAL COMMENT ABOUT THE JURISDICTIONAL ASPECTS OF THE CASE IS
PERHAPS IN ORDER.  THE BOARD FOUND THAT SCRIVENER'S OPERATIONS WERE TOO
SMALL TO SATISFY THE BOARD'S SELF-IMPOSED AND PUBLISHED $50,000
OUTFLOWING JURISDICTIONAL STANDARD FOR NON-RETAIL ENTERPRISES.  SEE
SIEMONS MAILING SERVICE, 122 N.L.R.B. 81, 85 (1958).  IT ALSO FOUND,
HOWEVER, THAT SCRIVENER'S OPERATIONS WERE SUFFICIENT TO "HAVE AN IMPACT
ON AND AFFECT INTERSTATE COMMERCE," 177 N.L.R.B.,AT 504, AND THUS WERE
WITHIN THE BOARD'S STATUTORY JURISDICTION AS DEFINED BY SEC. 10(A) OF
THE ACT, 29 U.S.C. 160(A). 

THIS PROMPTED THE BOARD TO ASSERT JURISDICTION OVER THE SECS.
8(A)(1) AND (4) CLAIM OF RETALIATION, BUT TO REFUSE TO EXERCISE
JURISDICTION OVER THE ORIGINAL SECS. 8(A)(1), (3), AND (5) CLAIMS ON
THE GROUND THAT THE LATTER WOULD HAVE "NO IMMEDIATE IMPACT ON THE
VINDICATION OF THE RIGHT OF AN INDIVIDUAL TO RESORT TO THE BOARD'S
PROCESSES . . . . "  177 N.L.R.B.,AT 505.  SCRIVENER, AS A CONSEQUENCE,
COMPLAINS THAT RELIEF FOR HIM AGAINST A CLAIMED UNFAIR LABOR PRACTICE
ON THE PART OF THE UNION IS UNAVAILABLE. 

THE EMPLOYER'S COMPLAINT OF JURISDICTIONAL UNFAIRNESS IS
UNDERSTANDABLE.  SEE, HOWEVER, PEDERSEN V. NLRB, SUPRA, 234 F.2D 417. 
AS WE READ THE OPINION OF THE COURT OF APPEALS, THIS ISSUE AND THAT OF
THE SUFFICIENCY OF THE EVIDENCE, AND PERHAPS OTHERS, WERE NOT REACHED
WHEN THAT COURT DECIDED THE SEC. 8(A)(4) ISSUE AS IT DID.  WE NOTE THAT
THAT COURT DESCRIBED THE BOARD'S JURISDICTION TO ACT AS "MARGINAL." 
435 F.2D, AT 1296.  IN ANY EVENT, THIS AND ANY OTHER ISSUES MAY BE
CANVASSED ON REMAND. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS. 

              IT IS SO ORDERED. 

/1/  LOCAL 453, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL
CIO. 

/2/  APPARENTLY ALL THE RITCHIE EMPLOYEES DID WAS "TO PREPARE TO
TESTIFY."  354 F.2D, AT 101. 

/3/  THE THREE JUSTICES WHO CONCURRED IN THE RESULT JOINED PART III
OF THE PLURALITY OPINION.  394 U.S.,AT 769. 

/4/  WE DO NOT REGARD THREE BOARD CASES, ALBERT J. BARTSON, 23
N.L.R.B. 666, 673-674 (1940); F. W. POE MFG. CO., 27 N.L.R.B. 1257,
1270 (1940); AND THE KRAMER CO., 29 N.L.R.B. 921, 935 (1941), CITED BY
THE AMICUS, AS INDICATIVE OF A CONTRARY BOARD INTERPRETATION.  IN EACH
OF THOSE CASES THE EMPLOYEE HAD FILED A CHARGE.  THE BOARD'S REFERENCE,
IN EACH OPINION, TO THAT FACT AND ITS FURTHER REFERENCE, IN THE LAST
TWO CASES, TO THE "EXPRESS STATUTORY PROTECTION AFFORDED EMPLOYEES" BY
SEC. 8(A)(4), ARE EXPECTED AND NATURAL REFERENCES AND DO NOT, IN OUR
VIEW, INDICATE A NARROW APPROACH TO THE STATUTE. 

/5/  WE ARE NOT PERSUADED THAT THE REACH OF SEC. 8(A)(3), 29 U.S.C.
158(A)(3), AND THE CRIMINAL PENALTY PROVIDED BY SEC. 12, 29 U.S.C. 162,
PROVIDE THE REQUIRED PROTECTION THAT JUSTIFIES A NARROW READING OF SEC.
8(A)(4). 

/6/  BUT CF. HOOVER DESIGN CORP. V. NLRB, 402 F.2D 987 (CA6 1968)
EMPLOYEE WHO "THREATENED TO GO TO THE BOARD" OR FILE CHARGES). 

WILLIAM TERRY BRAY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, PETER G. NASH, NORTON J. COME,
AND PUAL J. SPIELBERG. 

DONALD W. JONES ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

WILLIAM B. BARTON AND HARRY J. LAMBETH FILED A BRIEF FOR ASSOCIATED
BUILDERS & CONTRACTORS, INC., AS AMICUS CURIAE. 
..END :

















DUNCAN V. TENNESSEE, 405 U.S. 127 


       DUNCAN V. TENNESSEE

        CERTIORARI TO THE SUPREME COURT OF TENNESSEE

        NO. 70-5122.  ARGUED JANUARY 13, 1972-- DECIDED FEBRUARY
23,

           1972 


224 TENN. 712, 462 S.W.2D 491, CERTIORARI DISMISSED AS IMPROVIDENTLY
GRANTED. 

PER CURIAM. 

WE GRANTED CERTIORARI IN THIS CASE, 404 U.S. 821, TO CONSIDER
QUESTIONS SEEMINGLY PRESENTED UNDER THE CONSTITUTIONAL GUARANTEE
AGAINST DOUBLE JEOPARDY.  AFTER BRIEFING AND ORAL ARGUMENT, IT NOW
APPEARS THAT THOSE QUESTIONS ARE SO INTERRELATED WITH RULES OF CRIMINAL
PLEADING PECULIAR TO THE STATE OF TENNESSEE, THE CONSTITUTIONALITY OF
WHICH IS NOT AT ISSUE, AS NOT TO WARRANT THE EXERCISE OF THE CERTIORARI
JURISDICTION OF THIS COURT.  SEE, E.G., WILSON V. STATE.  200 TENN.
309, 292 S.W.2D 188 (1956); YOUNG V. STATE, 185 TENN. 596, 206 S.W.2D
805 (1947).  SEE U.S. SUP. CT. RULE 19(1)(A).  THE WRIT IS, THEREFORE,
DISMISSED AS HAVING BEEN IMPROVIDENTLY GRANTED. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

IN DISMISSING THE WRIT OF CERTIORARI IN THIS CASE, THE COURT LETS
STAND A CONVICTION SECURED IN VIOLATION OF PETITIONER'S RIGHT, UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS, NOT TO BE PLACED IN JEOPARDY TWICE
FOR A SINGLE CRIMINAL OFFENSE.  THE INFRINGEMENT OF THIS FUNDAMENTAL
RIGHT IS SO PLAIN ON THE RECORD BEFORE US THAT I AM COMPELLED TO
DISSENT. 

PETITIONER AND A CODEFENDANT, BROOKS, WERE BROUGHT TO TRIAL IN THE
CRIMINAL COURT OF MONTGOMERY COUNTY, TENNESSEE, ON AN INDICTMENT
CHARGING ARMED ROBBERY "BY THE USE OF A DEADLY WEAPON, TO-WIT:  A GUN
TO-WIT:  A PISTOL . . . . "  /1/  THE JURY WAS SELECTED AND SWORN, THE
INDICTMENT READ, AND A PLEA OF NOT GUILTY ENTERED ON THE DEFENDANTS'
BEHALF.  THE STATE'S FIRST WITNESS, THE OFFICER INVESTIGATING THE
ROBBERY, TESTIFIED THAT HE HAD BEEN LOOKING FOR A "22 RIFLE" USED IN
THE COMMISSION OF THE CRIME.  DEFENSE COUNSEL IMMEDIATELY OBJECTED TO
THIS EVIDENCE AS IMMATERIAL TO A CHARGE OF ARMED ROBBERY WITH A PISTOL,
AND AFTER SOME DISCUSSION OUT OF THE JURY'S PRESENCE, HIS OBJECTION WAS
SUSTAINED.  THE PROSECUTOR THEN INFORMED THE COURT THAT HE HAD USED THE
WORD "PISTOL" IN THE INDICTMENT BY MISTAKE AND THAT IN VIEW OF THE
COURT'S REFUSAL TO ADMIT EVIDENCE OF THE RIFLE, THE STATE COULD PROCEED
NO FURTHER WITH ITS CASE AND WOULD MOVE FOR A DIRECTED VERDICT OF
ACQUITTAL ON THE GROUND OF ERRONEOUS INDICTMENT.  THE TRIAL COURT
GRANTED THIS MOTION OVER DEFENDANTS' OBJECTION AND INSTRUCTED THE JURY
"TO FIND, OR ACQUIT THE DEFENDANTS OF THE CHARGE IN VIEW OF THAT ERROR
IN THE INDICTMENT." 

ABOUT EIGHT MONTHS LATER, IN MARCH 1969, THE DEFENDANTS WERE AGAIN
BROUGHT TO TRIAL FOR THE SAME ARMED ROBBERY.  THE NEW INDICTMENT WAS
IDENTICAL TO THE OLD AS TO DATE, VICTIM, AND AMOUNT OF MONEY STOLEN AND
DIFFERED ONLY IN ITS DESCRIPTION OF THE WEAPON AS A "22 CALIBER
RIFLE."  NEVERTHELESS, DEFENDANTS' PLEA OF DOUBLE JEOPARDY WAS
OVERRULED BY THE COURT, AND THEY WERE CONVICTED AND SENTENCED TO 10
YEARS' IMPRISONMENT.  THE STATE COURT OF CRIMINAL APPEALS SUSTAINED
DEFENDANTS' DOUBLE JEOPARDY CLAIM ON APPEAL, BUT THE SUPREME COURT OF
TENNESSEE REVERSED.  STATE V. BROOKS, 224 TENN. 712, 462 S.W.2D 491
(1970).  IT AGREED THAT EVIDENCE OF THE RIFLE WAS PROPERLY EXCLUDED AT
THE FIRST TRIAL, SINCE UNDER TENNESSEE'S "STRICT" VARIANCE RULE "'AN
ALLEGATION IN AN INDICTMENT WHICH IS NOT IMPERTINENT OR FOREIGN TO THE
CAUSE (SUCH AS SPECIFYING THE WEAPON AS A PISTOL) MUST BE PROVED,
THROUGH A PROSECUTION FOR THE SAME OFFENSE MIGHT BE SUPPORTED WITHOUT
SUCH ALLEGATION'.  . . . "  224 TENN.,AT 717, 462 S.W.2D, AT 494,
QUOTING HITE V. STATE, 17 TENN. 357 377 (1836) (THEFT OF NOTE PAYABLE
AT MECHANICS' AND TRADERS' BANK INADMISSIBLE ON INDICTMENT SPECIFYING
NOTE PAYABLE AT MERCHANTS' AND AND TRADERS' BANK).  SEE ALSO WILSON V.
STATE, 200 TENN. 309, 292 S.W.2D 188 (1956) (PROOF OF THEFT OF BRONZE
ROLLERS MATERIAL VARIANCE FROM INDICTMENT CHARGING THEFT OF BRASS
ROLLERS).  THE COURT WENT ON TO HOLD, HOWEVER, THAT SINCE THE VARIANCE
BETWEEN "PISTOL" AND "RIFLE" WAS SUFFICIENT TO RENDER THE INITIAL
INDICTMENT DEFECTIVE, IT WAS LIKEWISE SUFFICIENT TO DISTINGUISH THE
SECOND INDICTMENT FROM THE FIRST FOR DOUBLE JEOPARDY PURPOSES.  "'TO
ENTITLE A PRISONER TO THE BENEFIT OF THE PLEA OF AUTREFOIS ACQUIT, IT
IS NECESSARY THAT THE CRIMES CHARGED IN THE LAST BILL OF INDICTMENT BE
PRECISELY THE SAME WITH THAT CHARGED IN THE FIRST, AND THAT THE FIRST
BILL OF INDICTMENT IS GOOD IN POINT OF LAW.  THE TRUE TEST BY WHICH THE
QUESTION WHETHER SUCH A PLEA IS SUFFICIENT BAR MAY BE TRIED IS WHETHER
THE EVIDENCE NECESSARY TO SUPPORT THE SECOND INDICTMENT WOULD HAVE BEEN
SUFFICIENT TO PROCURE A LEGAL CONVICTION UPON THE FIRST.'"  224
TENN.,AT 715, 462 S.W.2D, AT 493, QUOTING HITE V. STATE, SUPRA, AT 375
376.  THOUGH RECOGNIZING THE APPLICATION OF THE DOUBLE JEOPARDY CLAUSE
TO THE STATES, BENTON V. MARYLAND, 395 U.S. 784 (1969), THE COURT
CONCLUDED THAT THE STRICT VARIANCE RULE "WHEN CONSISTENTLY APPLIED AS A
TEST FOR BOTH VARIANCE AND DOUBLE JEOPARDY, WILL AFFECT EQUALLY BOTH
THE STATE AND THE DEFENDANT, AND IN OUR OPINION NOT OFFEND THE
FOURTEENTH AMENDMENT."  224 TENN.,AT 719, 462 S.W.2D, AT 494.  A
PETITION FOR REHEARING BASED ON THIS COURT'S DECISION IN ASHE V.
SWENSON, 397 U.S. 436 (1970), WAS DENIED ON THE GROUND THAT ASHE "HAS
NO APPLICATION TO THE QUESTION WHETHER THERE HAS BEEN DOUBLE JEOPARDY
WHERE THE FIRST INDICTMENT IS VOID FOR VARIANCE."  224 TENN.,AT 720,
462 S.W.2D, AT 495. 

THE GUARANTEE AGAINST DOUBLE JEOPARDY IS "FUNDAMENTAL TO THE
AMERICAN SCHEME OF JUSTICE,'" BENTON V. MARYLAND, SUPRA, AT 796,
DESIGNED TO ENSURE THAT "THE STATE WITH ALL ITS RESOURCES AND POWER
SHOULD NOT BE ALLOWED TO MAKE REPEATED ATTEMPTS TO CONVICT AN
INDIVIDUAL FOR AN ALLEGED OFFENSE, THEREBY SUBJECTING HIM TO
EMBARRASSMENT, EXPENSE AND ORDEAL AND COMPELLING HIM TO LIVE IN A
CONTINUING STATE OF ANXIETY AND INSECURITY, AS WELL AS ENHANCING THE
POSSIBILITY THAT EVEN THOUGH INNOCENT HE MAY BE FOUND GUILTY."  GREEN
V. V. UNITED STATES, 355 U.S. 184, 187-188 (1957).  THUS, WE MUST VIEW
WITH A CAUTIOUS EYE ANY SUGGESTION, AS IN THE DENIAL OF REHEARING
BELOW, THAT A PARTICULAR TRIAL, ONCE COMMENCED, MIGHT NOT RESULT IN THE
ATTACHMENT OF JEOPARDY UNDER THE CONSTITUTION.  AS THE STATE CONCEDED
AT ORAL ARGUMENT, THAT SUGGESTION IS NOT SUSTAINABLE HERE.  HAD
PETITIONER'S FIRST TRIAL GONE NO FURTHER THAN THE IMPANELING OF A JURY,
THIS IN ITSELF WOULD HAVE SERVED TO INVOKE THE CONSTITUTIONAL
GUARANTEE, FOR IT IS NOW SETTLED THAT "A DEFENDANT IS PLACED IN
JEOPARDY ONCE HE IS PUT TO TRIAL BEFORE A JURY SO THAT IF THE JURY IS
DISCHARGED WITHOUT HIS CONSENT HE CANNOT BE TRIED AGAIN."  ID., AT
188.  THERE ARE EXCEPTIONS TO THIS RULE, OR COURSE, AS IN THE CASE OF A
HUNG JURY, UNITED STATES V. PEREZ, 9 WHEAT.  579 (1824), OR MILITARY
EMERGENCY REQUIRING WITHDRAWAL OF CHARGES, WADE V. HUNTER, 336 U.S. 684
(1949), BUT THEY DO NOT APPLY HERE. 

IN ANY EVENT, WE NEED NOT RELY ON THE CALLING OF A JURY TO FIND AN
ATTACHMENT OF JEOPARDY, FOR IT IS CLEAR THAT PETITIONER WAS NOT ONLY
TRIED FOR ROBBERY IN THE INITIAL PROCEEDING, BUT WAS IN FACT ACQUITTED
AT THE DIRECTION OF THE COURT.  HIS ACQUITTAL, BEING THE FINAL VERDICT
IN A COURT OR COMPETENT JURISDICTION, AUTOMATICALLY PRECLUDED THE STATE
FROM RETRYING HIM FOR THE SAME OFFENSE, EVEN THOUGH, AS THE COURT BELOW
POINTED OUT, THE DIRECTION TO ACQUIT AROSE FROM A DEFECT IN THE
INDICTMENT.  IT HAS LONG BEEN THE RULE OF THIS COURT THAT "FORMER
JEOPARDY INCLUDES ONE WHO HAS BEEN ACQUITTED BY A VERDICT DULY
RENDERED, ALTHOUGH NO JUDGMENT BE ENTERED ON THE VERDICT, AND IT WAS
FOUND UPON A DEFECTIVE INDICTMENT.  IT HAS LONG BEEN THE RULE OF THIS
COURT THAT "FORMER JEOPARDY INCLUDES ONE WHO HAS BEEN ACQUITTED BY A
VERDICT DULY RENDERED, ALTHOUGH NO JUDGMENT BE ENTERED ON THE VERDICT,
AND IT WAS FOUND UPON A DEFECTIVE INDICTMENT.  THE PROTECTION IS NOT .
. . AGAINST THE PERIL OF SECOND PUNISHMENT, BUT AGAINST BEING AGAIN
TRIED FOR THE SAME OFFENSE."  KEPNER V. UNITED STATES, 195 U.S. 100,
130 (1904).  SEE ALSO UNITED STATES V. BALL, 163 U.S. 662, 669-670
(1896); FONG FOO V. UNITED STATES, 369 U.S. 141 (1962) (DIRECTED
VERDICT OF ACQUITTAL, THOUGH "EGREGIOUSLY ERRONEOUS," BARS RETRIAL ON
THE SAME CHARGE); GENTON V. MARYLAND, SUPRA, AT 796-797.  NOR IS THIS
RULE A MERE NICETY OF ABSTRACT CONSTITUTIONAL THEORY.  THE PROSECUTION
MIGHT HAVE ANY NUMBER OF REASONS FOR WANTING TO HALT A TRIAL AT
MIDPOINT AND BEGIN ANEW, AND THE INDICTMENT OFFERS A FERTILE SOURCE FOR
THE DISCOVERY OF ERROR.  TO PERMIT THE STATE TO OBTAIN A FINAL VERDICT
BY ASSERTING ITS OWN MISTAKE IN THE INDICTMENT AND THEN TO RETRY THE
DEFENDANT ON THE THEORY THAT JEOPARDY HAD NOT ATTACHED IS TO SUBJECT
HIM TO THE VERY DANGERS THAT THE DOUBLE JEOPARDY CLAUSE WAS DESIGNED TO
AVOID.  THE STATE WAS VERY PROPERLY CONCEDED AT ORAL ARGUMENT THAT
PETITIONER "WAS PLACED IN JEOPARDY IN THE FIRST TRIAL."  TR. OF ORAL
ARG. 23. 

THE ONLY QUESTION, THEN, IS WHETHER THE PETITIONER WAS TRIED TWICE
FOR THE SAME OFFENSE.  TENNESSEE ARGUES THAT UNDER ITS STRICT-VARIANCE
RULE THE SPECIFICATION OF "PISTOL" IN THE FIRST INDICTMENT CHARGED AN
ENTIRELY DIFFERENT OFFENSE FROM THE ARMED ROBBERTY WITH A "RIFLE"
ALLEGED IN THE SECOND, SINCE THE "SAME EVIDENCE" COULD NOT BE USED TO
PROVE BOTH CHARGES.  WHATEVER RELEVANCE THIS DOCTRINE MAY HAVE IN
DETERMINING A VARIANCE BETWEEN INDICTMENT AND PROOF WITH A SINGLE
TRIAL, IT CERTAINLY DOES NOT COMPORT WITH THE DOUBLE JEOPARDY STANDARDS
OF THE FIFTH AND FOURTEENTH AMENDMENTS.  IN MY VIEW, "THE DOUBLE
JEOPARDY CLAUSE REQUIRES THE PROSECUTION, EXCEPT IN MOST LIMITED
CIRCUMSTANCES, TO JOIN AT ONE TRIAL ALL THE CHARGES AGAINST A DEFENDANT
THAT GROW OUT OF A SINGLE CRIMINAL ACT, OCCURRENCE, EPISODE, OR
TRANSACTION."  ASHE V. SWENSON, SUPRA, AT 453-454 (CONCURRING
OPINION).  THIS THE STATE HAS CLEARLY FAILED TO DO.  AT PETITIONER'S
FIRST TRIAL THE STATE WAS PREPARED TO PROCEED ON EVIDENCE THAT A RIFLE
HAD BEEN USED IN THE ROBBERY.  THE FIRST WITNESS TESTIFIED AS TO A
RIFLE, AND THE RIFLE ITSELF WAS APPARENTLY IN THE COURTROOM IN FULL
VIEW OF THE JURY.  FOLLOWING PETITIONER'S ACQUITTAL, THE STATE AGAIN
TRIED HIM FOR ARMED ROBBERTY WITH A RIFLE.  THE SAME WITNESS WAS CALLED
TO TESTIFY ABOUT THE RIFLE AS IN THE FIRST COURT, AND THE SAME RIFLE
WAS PRESENT IN THE COURTROOM.  IN SHORT, THOUGH THE FIRST INDICTMENT
CHARGED PETITIONER WITH USING A "PISTOL", THE STATE COULD ALSO HAVE
CHARGED HIM WITH USE OF A RIFLE, BASED ON THE VERY SAME EVIDENCE, BOTH
PHYSICAL AND TESTIMONAL, ON WHICH HE WAS EVENTUALLY CONVICTED AT THE
SECOND TRIAL.  HAVING FAILED TO DO SO AND HAVING OBTAINED A FINAL
VERDICT AT THE FIRST TRIAL, THE STATE WAS BARRED, IN MY OPINION, FROM
BRINGING A SECOND PROSECUTION BASED ON THIS "SINGLE CRIMINAL ACT." 
/2/ 

THE MAJORITY'S REFUSAL TO ADDRESS THESE ISSUES IS INEXPLICABLE.  IT
MAY BE THAT THE PROSECUTION IN THIS CASE DID NOT HAVE AVAILABLE TO IT A
READY MEANS, UNDER STATE LAW, OF AMENDING THE FIRST INDICTMENT AND THUS
HAD NO CHOICE BUT TO END THE TRIAL AND BEGIN AGAIN.  IF SO, ITS REMEDY
LIES IN CHANGING TENNESSEE'S CRIMINAL PROCEDURE, NOT IN DENYING
PETITIONER THE CONSTITUTIONAL PROTECTION TO WHICH HE IS ENTITLED. 
PETITIONER WAS TRIED TWICE FOR THE SAME OFFENSE, AND HIS CONVICTION
SHOULD BE REVERSED.  UNITED STATES V. JORN, 400 U.S. 470, 488 (1971)
(BLACK AND BRENNAN, JJ., CONCURRING).  I WOULD GRANT HIM THAT RELIEF. 

/1/  TENN. CODE ANN. SEC. 39-3901 (SUPP. 1970) PROVIDES: 

"ROBBERY IS THE FELONIOUS AND FORCIBLE TAKING FROM THE PERSON OF
ANOTHER, GOODS OR MONEY OF ANY VALUE, BY VIOLENCE OR PUTTING THE PERSON
IN FEAR.  EVERY PERSON CONVICTED OF THE CRIME OF ROBBERY SHALL BE
IMPRISONED IN THE PENITENTIARY NOT LESS THAN FIVE (5) NOR MORE THAN
FIFTEEN (15) YEARS; PROVIDED THAT IF THE ROBBERY BE ACCOMPLISHED BY THE
USE OF A DEADLY WEAPON THE PUNISHMENT SHALL BE DEATH BY ELECTROCUTION,
OR THE JURY MAY COMMUTE THE PUNISHMENT TO IMPRISONMENT FOR LIFE OR FOR
ANY PERIOD OF TIME NOT LESS THAN TEN (10) YEARS." 

/2/  IT IS NOT ENTIRELY CLEAR THAT THE TWO INDICTMENTS CHARGED
DIFFERENT OFFENSES EVEN UNDER STATE LAW.  IN STATE EX REL. ANDERSON V.
WINSETT, 217 TENN. 564, 399 S.W.2D 741 (1965), THE TENNESSEE SUPREME
COURT STATED THE FOLLOWING WITH REGARD TO THE STATE ROBBERY STATUTE,
SUPRA, N. 1: 

WHEN THE LEGISLATURE DETERMINED IN 1955 TO AMEND THE PENALTY STATUTE
FOR THE CRIME OF ROBBERY, IT WAS OBVIOUS THAT ROBBERY BY THE USE OF A
DEADLY WEAPON WAS DANGEROUS TO LIFE FOR MANY REASONS, AND THUS IT WAS
THAT THE ACT WAS AMENDED TO MAKE THE PENALTY FOR THE CRIME OF ROBBERY
WITH A DEADLY WEAPON AS STATED ABOVE, TO TRY TO PREVENT THE USE OF A
DEADLY WEAPON IN THE PREPETRATION OF A ROBBERY.  (BUT) SO ADDING THIS
INCREASED PUNISHMENT FOR THE INCREASED GRAVITY OF THE CRIME DOES NOT
CREATE A SEPARATE OR DISTINCT OFFENSE, BUT MERELY PROVIDES FOR
INCREASED PUNISHMENT OF SUCH OFFENDER BECAUSE OF THE PRESENCE OF
AGGRAVATING CIRCUMSTANCES."  ID., AT 567-568, 399 S.W.2D, AT 743, 

RELYING ON WINSETT AND THE ROBBERY STATUTE ITSELF, PETITIONER
CONTENDS, WITH SOME FORCE IN MY VIEW, THAT THE ONLY CRIME CHARGED IN
EITHER PROSECUTION WAS "ROBBERY," WITH THE USE OF THE WEAPON AND ITS
SPECIFICATION IN THE INDICTMENT ADDING ONLY TO THE PUNISHMENT THAT
MIGHT BE IMPOSED. 

ROGER N. BOWMAN ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 
EVERETT H. FALK, ASSISTANT ATTORNEY GENERAL OF TENNESSEE, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS ROBERT E. KENDRICK,
DEPUTY ATTORNEY GENERAL. 
..END :


















BOYD V. DUTTON, 405 U.S. 1 


       BOYD V. DUTTON, WARDEN

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 70-5075.  DECIDED FEBRUARY 22, 1972 


WHERE THE MATERIAL FACTS BEARING UPON THE ISSUE OF WHETHER
PETITIONER, CHARGED WITH FOUR FELONIES, KNOWINGLY AND VOLUNTARILY
WAIVED HIS CONSTITUTIONAL RIGHT TO COUNSEL BEFORE ENTERING A GUILTY
PLEA IN THE STATE TRIAL COURT, WERE INADEQUATELY DEVELOPED IN A STATE
COURT POST-CONVICTION HEARING, THE FEDERAL DISTRICT COURT CONSIDERING A
HABEAS CORPUS PETITION WAS UNDER A DUTY TO HOLD AN EVIDENTIARY
HEARING.  TOWNSEND V. SAIN, 372 U.S. 293, 313; 28 U.S.C. 2254(D). 

CERTIORARI GRANTED; 435 F.2D 153, VACATED AND REMANDED TO DISTRICT
COURT. 

PER CURIAM. 

THE PETITIONER, JACK BOYD, PLEADED GUILTY IN A GEORGIA TRIAL COURT
TO THREE COUNTS OF FORGING CHECKS AND TO ONE COUNT OF POSSESSION OF A
FORGED CHECK.  HE WAS NOT REPRESENTED BY A LAWYER.  THE COURT SENTENCED
HIM TO SERVE 28 YEARS IN PRISON-- FOUR CONSECUTIVE TERMS OF SEVEN YEARS
EACH.  NO TRANSCRIPT OF THAT PLEA OR SENTENCING PROCEEDING EXISTS. 

HE SOUGHT HABEAS CORPUS RELIEF IN THE STATE TRIAL COURT, ALLEGING,
AMONG OTHER THINGS, THAT HE HAD BEEN DENIED THE ASSISTANCE OF COUNSEL. 
AN EVIDENTIARY HEARING WAS HELD, AND RELIEF WAS DENIED.  AN APPEAL WAS
DISMISSED BY THE GEORGIA SUPREME COURT.  THE PETITIONER THEN FILED A
PETITION FOR HABEAS CORPUS IN A FEDERAL DISTRICT COURT, WHICH DENIED
RELIEF WITHOUT A HEARING, BASING ITS DECISION ON THE RECORD OF THE
STATE POST-CONVICTION PROCEEDING.  THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT AFFIRMED, BOYD V. SMITH, 435 F.2D 153. 

AT THE GEORGIA POST-CONVICTION HEARING, WHERE THE PETITIONER WAS
ALSO WITHOUT THE ASSISTANCE OF COUNSEL, THE ONLY WITNESS FOR THE STATE
ON THE QUESTION OF WAIVER OF COUNSEL AT THE ARRAIGNMENT WAS A MAN NAMED
DUNNAWAY, WHO HAD BEEN PRESENT AT THE ARRAIGNMENT, AS DEPUTY SHERIFF OF
TERRELL COUNTY, GEORGIA.  ACCORDING TO DUNNAWAY, THE PROSECUTOR TOLD
THE PETITIONER THAT HE WAS ENTITLED TO LEGAL COUNSEL AND THAT THE COURT
WOULD APPOINT A LAWYER IF THE PETITIONER COULD NOT AFFORD ONE.  BY
DUNNAWAY'S ACCOUNT, THE PROSECUTOR THEN ASKED THE PETITIONER IF HE
WANTED A LAWYER, AND THE PETITIONER REPLIED THAT HE DID NOT.  YET THERE
WERE APPARENTLY NO QUESTIONS FROM EITHER THE JUDGE OR THE PROSECUTOR
DURING THE ARRAIGNMENT INQUIRING WHETHER THE PETITIONER UNDERSTOOD THE
NATURE AND THE CONSEQUENCES OF HIS ALLEGED WAIVER OF THE RIGHT OF
COUNSEL OR OF HIS GUILTY PLEA. 

THE PETITIONER EXPRESSED A DESIRE TO CALL WITNESSES AT THE STATE
POST-CONVICTION HEARING, BUT THE COURT DID NOT ASK HIM WHO THE PROPOSED
WITNESSES WERE OR INQUIRE ABOUT THE EXPECTED NATURE OF THEIR
TESTIMONY.  THE JUDGE SIMPLY NOTED THAT THE PETITIONER, WHO OBVIOUSLY
POSSESSED NO LEGAL SKILL, HAD FAILED TO SUBPOENA THOSE WHOM HE WANTED
TO TESTIFY. 

A PERSON CHARGED WITH A FELONY IN A STATE COURT HAS AN UNCONDITIONAL
AND ABSOLUTE CONSTITUTIONAL RIGHT TO A LAWYER.  GIDEON V. WAINWRIGHT,
372 U.S. 335.  THIS RIGHT ATTACHES AT THE PLEADING STAGE OF THE
CRIMINAL PROCESS, RICE V. OLSON, 324 U.S. 786, AND MAY BE WAIVED ONLY
BY VOLUNTARY AND KNOWING ACTION, JOHNSON V. ZERBST, 340 U.S. 458;
CARNLEY V. COCHRAN, 369 U.S. 506.  WAIVER WILL NOT BE "LIGHTLY
PRESUMED," AND A TRIAL JUDGE MUST "INDULGE EVERY REASONABLE PRESUMPTION
AGAINST WAIVER."  JOHNSON, SUPRA, AT 464. 

THE CONTROLLING ISSUE IN THIS CASE IS WHETHER THE PETITIONER
KNOWINGLY AND VOLUNTARILY WAIVED HIS CONSTITUTIONAL RIGHT TO COUNSEL
BEFORE ENTERING THE GUILTY PLEA IN THE STATE TRIAL COURT.  IT IS
EVIDENT THAT THE MATERIAL FACTS BEARING UPON THAT ISSUE WERE
INADEQUATELY DEVELOPED IN THE STATE COURT POST-CONVICTION HEARING. 
THAT BEING SO, THE FEDERAL DISTRICT COURT WAS UNDER A DUTY TO HOLD AN
EVIDENTIARY HEARING.  TOWNSEND V. SAIN, 372 U.S. 293, 313; 28 U.S.C.
2254(D).  ACCORDINGLY, WE GRANT THE PETITION FOR A WRIT OF CERTIORARI,
VACATE THE JUDGMENT BEFORE US, AND REMAND THE CASE TO THE DISTRICT
COURT FOR AN EVIDENTIARY HEARING. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACKMUN, CONCURRING. 

I JOIN THE COURT'S PER CURIAM OPINION AND JUDGMENT.  I DO SO,
HOWEVER, ONLY AFTER SOME INITIAL HESITATION, FOR THERE IS FORCE IN MR.
JUSTICE POWELL'S DISSENT WHEN IT STRESSES THAT THE UNANIMOUS JUDGMENT
OF FOUR COURTS IS BEING OVERTURNED AND THAT THE TRIER OF FACT IN THE
STATE POST-CONVICTION PROCEDURE DECIDED THE FACTUAL ISSUES AGAINST THE
PETITIONER. 

A READING OF THE POST-CONVICTION TRANSCRIPT, HOWEVER, PERSUADES ME
THAT THE PETITIONER WAS UTTERLY LOST AT THAT PROCEEDING; THAT HIS
ASSERTION THAT FAVORABLE WITNESSES EXISTED WAS FRUSTRATED BECAUSE HE
DID NOT KNOW HOW TO COMPEL THEIR ATTENDANCE AND RECEIVED NO ASSISTANCE
IN THIS RESPECT; AND THAT THE DEVELOPMENT OF THE MATERIAL FACTS LEAVES
SOMETHING TO BE DESIRED AND FALLS SOMEWHAT SHORT OF THE STANDARDS LAID
DOWN IN TOWNSEND V. SAIN, 372 U.S. 293, 313 (1963).  WHEN A 20-YEAR OLD
WHO CLAIMS HE COULD NOT READ OR WRITE (ALTHOUGH HE APPARENTLY WAS ABLE
TO SIGN HIS NAME TO THE PETITION IN THE PRESENT PROCEEDING) RECEIVES
FOUR CONSECUTIVE SEVEN-YEAR SENTENCES, TOTALING 28 YEARS, FOR FORGING
THREE CHECKS WITHIN A FORTNIGHT IN THE RESPECTIVE AMOUNTS OF $45, $45,
AND $40, AND FOR POSSESSING A FORGED CHECK IN THE AMOUNT OF $10, HIS
POST-CONVICTION HEARING, FOR ME AND ON BALANCE, MUST CLEARLY MEET THOSE
STANDARDS.  CERTAINLY, THE APPOINTMENT OF COUNSEL IS INDICATED. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THERE IS NO SUGGESTION THAT EITHER THE TRIAL COURT ACCEPTING
PETITIONER'S PLEA OF GUILTY OR THE STATE COURT DENYING HABEAS CORPUS
EMPLOYED AN ERRONEOUS LEGAL STANDARD IN PROCEEDING AS IT DID.  ON THIS
RECORD WE MAY "PROPERLY ASSUME THAT THE STATE TRIER OF FACT APPLIED
CORRECT STANDARDS OF FEDERAL LAW TO THE FACTS, IN THE ABSENCE OF
EVIDENCE . . . THAT THERE IS REASON TO SUSPECT THAT AN INCORRECT
STANDARD WAS IN FACT APPLIED."  TOWNSEND V. SAIN, 372 U.S. 293, 315
(1963).  AND IN PARTICIPATING IN OUR APPELLATE FUNCTION AND ACTING ON
THE COLD RECORD BEFORE US, I CANNOT PRESUME GREATER INSIGHT INTO
PETITIONER'S UNDERSTANDING OF HIS RIGHTS, HIS WAIVER OF COUNSEL, AND
HIS PLEA OF GUILTY THAN THAT OF THE OTHER COURTS THAT HAVE CONSIDERED
THIS CASE, INCLUDING THE STATE COURT ACCEPTING THE PLEA OF GUILTY AND
THE HABEAS CORPUS COURT THAT HEARD PETITIONER AND THE OTHER EVIDENCE. 
ACCORDING TO THE UNDISPUTED EVIDENCE AS TO THE CIRCUMSTANCES
SURROUNDING THE PLEA, PETITIONER STATED THAT HE WAIVED COUNSEL,
ADMITTED THAT HE WAS GUILTY, AND ACCORDINGLY ENTERED HIS PLEA.  LIKE
MR. JUSTICE POWELL, I THINK THE JUDGMENT OF THE STATE COURT WAS FAIRLY
SUPPORTED BY THE EVIDENCE.  THE PETITION FOR WRIT OF CERTIORARI HAVING
BEEN GRANTED, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

MR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REHNQUIST JOIN, DISSENTING. 

THE PER CURIAM OPINION OF THE COURT FINDS THAT THE FACTS IN THIS
CASE WERE "INADEQUATELY DEVELOPED" WITH RESPECT TO THE CONTROLLING
ISSUE WHETHER PETITIONER KNOWINGLY VOLUNTARILY WAIVED HIS
CONSTITUTIONAL RIGHT TO COUNSEL BEFORE ENTERING THE GUILTY PLEA IN THE
STATE TRIAL COURT.  RELYING ON TOWNSEND V. SAIN, 372 U.S. 293 (1963),
THE MAJORITY REMANDS THE CASE TO THE DISTRICT COURT. 

AS IT SEEMS TO ME THAT THE FACTS ON THIS ISSUE WERE ADEQUATELY
DEVELOPED IN THE STATE POST-CONVICTION EVIDENTIARY HEARING, I DISSENT
FROM THE MAJORITY HOLDING.  AT THAT HEARING DEPUTY SHERIFF DUNNAWAY,
WHO WAS PRESENT AT THE TIME PETITIONER WAIVED COUNSEL, TESTIFIED AS
FOLLOWS: 

     "Q.  WHAT PROMPTED YOU TO GET HIM OUT OF JAIL?  HAD HE

  INDICATED HE WANTED TO ENTER A PLEA OR WHAT? 

     "A.  HE STATED HE WANTED GO BEFORE THE JUDGE AND ENTER A PLEA
OF GUILTY. 

     "Q.  AND IS SATURDAY THE REGULAR DAY THAT THE JUDGE TAKES
PLEAS THERE? 

     "A.  YES, SIR.  HE TAKES 'EM IN COLQUITT, HIS HOME TOWN. 

     "Q.  AND YOU TOOK HIM YOURSELF TO THE COURTROOM FROM THE
JAIL? 

     "A.  YES, SIR. 

     "Q.  WOULD YOU TELL THE COURT BRIEFLY WHAT HAPPENED WHENEVER
YOU GOT HIM TO THE COURTROOM? 

     "A.  HE WAS CARRIED TO THE COURTROOM, AND, UH, THE SOLICITOR

  DRAWED UP THE ACCUSATIONS AGAINST HIM, AND AFTER HE DRAWED UP THE

  ACCUSATIONS AGAINST HIM, AND I SIGNED THE ACCUSATION, WE CALLED

  JACK BOYD AND CLINTON HENDERSON, ANOTHER BOY THAT WAS WITH HIM,

  INTO THE COURTROOM, AND MR. RAY ADVISED EACH OF 'EM WHAT THE

CHARGES AGAINST 'EM WAS AND ASKED 'EM DID THEY HAVE LEGAL

  COUNSEL, AND WHICH BOTH OF 'EM STATED THEY DID NOT HAVE LEGAL

  COUNSEL.  MR. RAY ADVISED BOTH OF 'EM THAT THEY WERE ENTITLED TO

  LEGAL COUNSEL, AND IF THEY COULD NOT AFFORD IT, THE COURT WOULD

  APPOINT 'EM LEGAL COUNSEL, AND ASKED . . . ALSO, HE ADVISED 'EM

  IF THEY WANTED TO TO TRIAL BY JURY, THAT THE COURT WOULD APPOINT

  'EM AN ATTORNEY TO REPRESENT 'EM IN TRIAL, AND THIS DEFENDANT AND

  CLINTON HENDERSON BOTH STATED TO MR. RAY, IN MY PRESENCE, THAT

  THEY BOTH KNEW THEY WAS GUILTY AND THEY DIDN'T WANT A TRIAL, AND

  THEY BOTH SIGNED THE ACCUSATION THAT THEY WAS GUILTY, AND I

  WITNESSED THE SIGNATURE OF BOTH OF 'EM. 

"Q.  I BELIEVE YOU SAID YOU HAD KNOWN JACK BOYD FOR A GOOD MANY

  YEARS.  DID HE APPEAR TO UNDERSTAND FROM HIS DEMEANOR WHAT WAS

  GOING ON AND WHAT HE WAS CHARGED WITH? 

"A.  YES, SIR. 

     "Q.  IS HE POSSESSED OF AVERAGE INTELLIGENCE AT LEAST? 

     "A.  YES, SIR. 

     "Q; DID HE APPEAR TO UNDERSTAND MR. RAY WHEN HE TOLD HIM THAT

HE HAD THE RIGHT TO HAVE AN ATTORNEY? 

     "A.  MR. RAY ASKED HIM DID HE UNDERSTAND WHAT HE HAD STATED TO
HIM.  HE SAID THAT HE DID. 

     "Q.  IN YOUR OPINION, FROM YOUR FAMILIARITY WITH HIM, YOUR

  ACQUAINTANCE WITH HIM, AND FROM YOUR OBSERVATION OF HIM AT THAT

  TIME, DID HE KNOWINGLY AND INTELLIGENTLY ENTER HIS PLEA OF

  GUILTY? 

     "A.  YES, SIR. 

     "Q.  DID HE KNOWINGLY AND INTELLIGENTLY . . . THIS IS YOUR

  OPINION ALSO I'M ASKING ABOUT, WAIVE HIS RIGHT TO ANY COUNSEL,

  LEGAL COUNSEL? 

     "A.  YES, SIR." 

PETITIONER WAS PRESENT WHEN DUNNAWAY TESTIFIED AND DID NOT
CONTRADICT THE FOREGOING TESTIMONY THAT HE WAIVED COUNSEL.  THIS
UNDISPUTED TESTIMONY SEEMS ADEQUATE, AS THE COURTS BELOW FOUND, TO
WARRANT THE CONCLUSIONS THAT PETITIONER KNOWINGLY AND VOLUNTARILY
WAIVED HIS RIGHT TO COUNSEL, AND THAT NO FURTHER EVIDENTIARY HEARING
WAS REQUIRED. 

IT IS TRUE THAT PETITIONER IS UNEDUCATED, AND THAT THE SENTENCE
IMPOSED SEEMS DISPROPORTIONATE TO THE CRIME.  /1/  IT IS ALSO TRUE THAT
THE STATE COURT HEARING COULD HAVE BEEN MORE EXHAUSTIVE.  /2/
ADDITIONAL WITNESSES MIGHT HAVE BEEN CALLED, AS SUGGESTED BY THE
MAJORITY OPINION, ALTHOUGH THERE IS NO INDICATION IN THE RECORD THAT
THEY WOULD HAVE CONTRADICTED THE TESTIMONY WITH RESPECT TO WAIVING
COUNSEL WHICH PETITIONER HIMSELF FAILED TO DISPUTE.  BUT THE ULTIMATE
TEST WITH RESPECT TO THE HOLDING OF AN EVIDENTIARY HEARING BY A FEDERAL
DISTRICT COURT IS WHETHER THERE WAS "A FULL AND FAIR FACT HEARING" IN
THE STATE PROCEEDINGS.  TOWNSEND, SUPRA, AT 313.  WHERE THE MATERIAL
FACTS BEARING UPON THE RELATIVELY NARROW ISSUE OF WAIVING COUNSEL ARE
UNDISPUTED, EXCEPT INFERENTIALLY, AND SHOW THAT WAIVER WAS MADE
"KNOWINGLY AND INTELLIGENTLY," I BELIEVE THAT THIS TEST HAS BEEN MET. 
/3/ 

THERE IS LITTLE LIKELIHOOD THAT A NEW HEARING NOW, EIGHT YEARS AFTER
THE 1964 CONVICTION, WILL BE CONDUCIVE TO PENDABLE FACTFINDING /4/  OR
WILL ENLARGE UPON THE EVIDENCE ALREADY CONSIDERED.  THIS CASE ALREADY
HAS RECEIVED THE ATTENTION OF FOUR COURTS.  REMANDING IT MAY FURTHER
THE REPETITIVE JUDICIAL RE-EXAMINATION WHICH HAS BECOME SO
COMMONPLACE.  THE CURRENT FLOOD OF PETITIONS FOR POST-CONVICTION RELIEF
ALREADY THREATENS-- BECAUSE OF SHEER VOLUNE-- TO SUBMERGE MERITORIOUS
CLAIMS AND EVEN TO PRODUCE A JUDICIAL INSENSITIVITY TO HABEAS CORPUS
PETITIONERS.  /5/ 

/1/  PETITIONER, HAVING SERVED SOME EIGHT YEARS, MAY WELL MERIT
CONSIDERATION FOR PAROLE OR EXECUTIVE CLEMENCY. 

/2/  THE TRIAL JUDGE WOULD HAVE BEEN WELL ADVISED TO HAVE APPOINTED
A LAWYER, ALTHOUGH THAT IS NOT CONSTITUTIONALLY REQUIRED.  SEE JOHNSON
V. AVERY, 393 U.S. 483, 488 (1969) (DICTUM); DEVELOPMENTS IN THE LAW--
FEDERAL HABEAS CORPUS, 83 HARV.L.REV.  1038, 1197 (1970). 

/3/  IN TOWNSEND V. SAIN, 372 U.S. 293, 319 (1963), THE COURT
RECOGNIZED THAT IT MUST RELY LARGELY ON DISTRICT JUDGES, WHO HAVE THE
"PARAMOUNT RESPONSIBILITY IN THIS AREA," TO IMPLEMENT THE PRESCRIBED
STANDARDS. 

/4/  PETITIONER DEMONSTRATED IN THE STATE COURT PROCEEDING THE
INFIRMITY OF HIS MEMORY BY INITIALLY DENYING THAT HE HAD EVER BEEN IN
COURT PRIOR TO THE FORGERY CHARGE, WHEN IN FACT HE HAD BEEN CONVICTED
PREVIOUSLY OF RECEIVING STOLEN GOODS AND HAD SERVED A SENTENCE FOR THAT
CRIME. 

/5/  SEE BATOR, FINALITY IN CRIMINAL LAW AND FEDERAL HABEAS CORPUS
FOR STATE PRISONERS, 76 HARV.L.REV.  441, 451 (1963). 
..END :








COLOMBO V. NEW YORK, 405 U.S. 9 


       COLOMBO V. NEW YORK. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS

           OF NEW YORK

        NO. 71-352.  DECIDED FEBRUARY 22, 1972 


PETITIONER REFUSED TO ANSWER A GRAND JURY'S QUESTIONS DESPITE A GRANT
OF IMMUNITY.  A TRIAL JUDGE FOUND THE QUESTIONS TO BE PROPER AND
DIRECTED PETITIONER TO ANSWER.  PETITIONER REFUSED, AND THE JUDGE FOUND
THAT BY "HIS CONTUMACIOUS AND UNLAWFUL REFUSAL . . . TO ANSWER ANY
LEGAL AND PROPER INTERROGATORIES AND FOR HIS WILLFUL DISOBEDIENCE TO
THE LAWFUL MANDATE OF THIS COURT" PETITIONER HAD "COMMITTED A CRIMINAL
CONTEMPT OF COURT" IN VIOLATION OF N.Y. JUDICIARY LAW SEC. 750.  HE WAS
SENTENCED TO 30 DAYS AND FINED $250.  HIS OFFER TO TESTIFY THEREAFTER
WAS REFUSED AND HE PAID HIS FINE AND SERVED HIS SENTENCE.  PETITIONER
WAS THEN INDICTED UNDER N.Y. PENAL LAW SEC. 600 "FOR HIS CONTUMACIOUS
AND UNLAWFUL REFUSAL . . . TO ANSWER LEGAL AND PROPER
INTERROGATORIES."  THE TRIAL COURT DISMISSED THE INDICTMENT ON DOUBLE
JEOPARDY GROUNDS, BUT THE APPELLATE COURT REVERSED.  THE NEW YORK COURT
OF APPEALS, SUSTAINING THE REVERSAL, HELD THAT THERE WERE TWO ACTS OF
CONTEMPT, ONE BEFORE THE GRAND JURY, AND THE OTHER THE REFUSAL TO OBEY
THE COURT ORDER, AND THAT THE TRIAL JUDGE HAD COMMITTED PETITIONER FOR
CIVIL, NOT CRIMINAL, CONTEMPT.  HELD:  PETITIONER WAS PENALIZED FOR
CRIMINAL CONTEMPT FOR PURPOSES OF THE DOUBLE JEOPARDY CLAUSE, AND IN
VIEW OF THE STATE COURT'S MISCONCEPTION OF THE NATURE OF THE CONTEMPT
JUDGMENT, AND THE SUBSTANTIAL QUESTION OF STATE LAW ARISING FROM THE
STATE'S RESPONSE THAT IT CONSIDERS THE TWO ACTS OF CONTEMPT AS BEING
PARTIALLY INTERWINED, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED
TO THE STATE COURT. 

CERTIORARI GRANTED; 29 N.Y.2D 1, 271 N.E.2D 694, VACATED AND
REMANDED. 

PER CURIAM. 

DESPITE A GRANT OF IMMUNITY IN RESPONSE TO THE ASSERTION OF HIS
FIFTH AMENDMENT PRIVILEGE NOT TO BE A WITNESS AGAINST HIMSELF,
PETITIONER REFUSED TO ANSWER QUESTIONS PUT TO HIM BEFORE A KINGS
COUNTY, NEW YORK, GRAND JURY.  ON DECEMBER 7, 1965, A TRIAL JUDGE FOUND
THAT THE QUESTIONS PUT HAD BEEN PROPER AND DIRECTED PETITIONER TO
ANSWER THEM.  PETITIONER REFUSED; THE TRIAL COURT, AFTER ALLOWING
PETITIONER A WEEK'S TIME TO CHANGE HIS MIND, SIGNED A COMMITMENT ORDER
STATING THAT BY "HIS CONTUMACIOUS AND UNLAWFUL REFUSAL AFTER BEING
SWORN AS A WITNESS TO ANSWER ANY LEGAL AND PROPER INTERROGATORIES AND
FOR HIS WILFUL DISOBEDIENCE TO THE LAWFUL MANDATE OF THIS COURT"
PETITIONER HAD "COMMITTED A CRIMINAL CONTEMPT OF COURT IN THE IMMEDIATE
VIEW AND PRESENCE OF THE COURT AND THAT SAID CONTEMPT WAS WILFUL AND
UNLAWFUL AND IN VIOLATION OF SECTION 750 OF THE JUDICIARY LAW OF THE
STATE OF NEW YORK.  . . . "  PETITIONER WAS SENTENCED TO 30 DAYS AND
FINED $250. 

APPELLATE PROCEEDINGS PROVED FRUITLESS.  PETITIONER THEN OFFERED TO
TESTIFY, THE OFFER WAS REFUSED, AND PETITIONER PAID HIS FINE AND SERVED
HIS SENTENCE.  ON OCTOBER 10, 1966, PETITIONER WAS INDICTED UNDER SEC.
600, SUBD. 6, OF THE NEW YORK PENAL LAW OF 1909 "FOR HIS CONTUMACIOUS
AND UNLAWFUL REFUSAL, AFTER BEING DULY SWORN AS A WITNESS, TO ANSWER
LEGAL AND PROPER INTERROGATORIES."  THE TRIAL COURT DISMISSED THE
INDICTMENT ON DOUBLE JEOPARDY GROUNDS BUT THE APPELLATE COURT
REVERSED.  THE REVERSAL WAS SUSTAINED BY THE COURT OF APPEALS, WHICH
CONCLUDED THAT THE FOURTEENTH AMENDMENT AND THE DOUBLE JEOPARDY
PROVISION OF THE FIFTH AMENDMENT DID NOT BAR THE INDICTMENT.  THE COURT
REASONED THAT PETITIONER HAD COMMITTED TWO ACTS OF CONTEMPT-- ONE ON
OCTOBER 14, 1965, BEFORE THE GRAND JURY, AND THE OTHER ON DECEMBER 7,
WHEN HE REFUSED TO OBEY THE ORDER OF THE JUDGE-- AND THAT THE TRIAL
JUDGE HAD COMMITTED PETITIONER FOR CIVIL, NOT CRIMINAL, CONTEMPT. 

THE JUDGMENT OF THE COURT OF APPEALS MUST BE VACATED.  THE JUDGMENT
OF THE NEW YORK TRIAL COURT ENTERED ON DECEMBER 15, 1965, WAS FOR
"CRIMINAL CONTEMPT," PETITIONER WAS SENTENCED TO A DEFINITE TERM IN
JAIL AND ORDERED TO PAY A FINE, AND NEITHER THE PROSECUTOR NOR THE
TRIAL COURT CONSIDERED HIS OFFER TO TESTIFY TO FORECLOSE EXECUTION OF
THE SENTENCE.  FOR PURPOSES OF THE DOUBLE JEOPARDY CLAUSE, PETITIONER
WAS CONFINED AND PENALIZED FOR CRIMINAL CONTEMPT.  YATES V. UNITED
STATES, 355 U.S. 66 (1957); SEE ALSO CHEFF V. SCHNACKENBERG, 384 U.S.
373 (1966); SHILLITANI V. UNITED STATES, 384 U.S. 364 (1966); ORIEL V.
RUSSELL, 278 U.S. 358 (1929).  TO THE EXTENT THAT THE JUDGMENT OF THE
COURT OF APPEALS RESTED ON A CONTRARY VIEW, IT MUST BE SET ASIDE.  IT
ALSO APPEARS FROM ITS SUPPLEMENTAL RESPONSE THAT THE STATE CONSIDERS
THE TWO ACTS OF CONTEMPT ON OCTOBER 14 AND ON DECEMBER 7 AS BEING
PARTIALLY INTERTWINED.  AS WE UNDERSTAND IT FROM THE STATE'S RESPONSE,
PETITIONER'S REFUSAL TO ANSWER ON OCTOBER 14 DID NOT MATURE INTO A
COMPLETE CONTEMPT UNTIL DECEMBER 7 WHEN THE TRIAL COURT PASSED ON THE
PROPRIETY OF THE GRAND JURY'S INQUIRY AND PETITIONER THEREAFTER REFUSED
TO OBEY THE COURT'S DIRECTION TO RETURN TO THE GRAND JURY AND ANSWER
THE QUESTIONS PROPERLY PUT TO HIM. 

IN VIEW OF THE NEW YORK COURT OF APPEALS' MISCONCEPTION OF THE
NATURE OF THE CONTEMPT JUDGMENT ENTERED AGAINST PETITIONER FOR PURPOSES
OF THE DOUBLE JEOPARDY CLAUSE AND IN VIEW OF THE SUBSTANTIAL QUESTION
OF NEW YORK LAW THAT HAS EMERGED, WE ARE DISINCLINED AT THIS JUNCTURE
TO ENTERTAIN AND DETERMINE THE DOUBLE JEOPARDY QUESTION PRESENTED BY
PETITIONER.  THE BETTER COURSE IS TO GRANT THE PETITION FOR WRIT OF
CERTIORARI, VACATE THE JUDGMENT OF THE NEW YORK COURT OF APPEALS, AND
REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION, THUS AFFORDING THAT COURT THE OPPORTUNITY TO
RECONSIDER THE VALIDITY OF THE INDICTMENT UNDER THE DOUBLE JEOPARDY
CLAUSE OF THE CONSTITUTION. 

              SO ORDERED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

ON OCTOBER 14, 1965, PETITIONER REFUSED TO TESTIFY WHEN CALLED
BEFORE A KINGS COUNTY, NEW YORK, GRAND JURY.  WHEN, ON DECEMBER 15,
AFTER A GRANT OF IMMUNITY AND A JUDICIAL INQUIRY INTO THE VALIDITY OF
THE GRAND JURY INVESTIGATION UNDER STATE LAW, THE PETITIONER PERSISTED
IN HIS REFUSAL TO TESTIFY, THE PRESIDING JUDGE CITED HIM FOR CONTEMPT
AND IMPOSED A SENTENCE OF 30 DAYS AND A FINE OF $250.  /1/  DESPITE
PETITIONER'S LATER WILLINGNESS TO TESTIFY, THE SENTENCE WAS EXECUTED. 

THE GRAND JURY THEN RETURNED AN INDICTMENT AGAINST PETITIONER
CHARGING HIM WITH CRIMINAL CONTEMPT FOR HIS REFUSAL TO TESTIFY.  /2/
PETITIONER SUCCESSFULLY MOVED TO QUASH THE INDICTMENT, BUT ON APPEAL IT
WAS REINSTATED AND UPHELD AGAINST PETITIONER'S CONTENTION THAT IT PUT
HIM TWICE IN JEOPARDY FOR THE SAME OFFENSE IN VIOLATION OF THE FIFTH
AMENDMENT.  PEOPLE V. COLOMBO, 25 N.Y.2D 641, 254 N.E.2D 340.  WE
GRANTED THE PETITION FOR CERTIORARI, VACATED THE JUDGMENT OF THE NEW
YORK COURT OF APPEALS, AND REMANDED FOR CONSIDERATION IN LIGHT OF
WALLER V. FLORIDA, 397 U.S. 387.  400 U.S. 16.  ON REMAND, HOWEVER, THE
COURT OF APPEALS ADHERED TO ITS EARLIER DECISION, REASONING THAT THE
FIRST CITATION WAS FOR CIVIL CONTEMPT WHILE THE INDICTMENT CHARGED A
CRIMINAL OFFENSE AND THAT "TWO DISTINCT ACTS (WERE) BEING PUNISHED--
REFUSAL TO TESTIFY BEFORE THE GRAND JURY AND A SEPARATE REFUSAL TO OBEY
THE LAWFUL MANDATE OF A SUPREME COURT JUSTICE."  29 N.Y.2D 1, 3, 271
N.E.2D 694, 695. 

THE COURT OF APPEALS' CHARACTERIZATION OF THE DECEMBER 15 CITATION
AS "CIVIL" RATHER THAN CRIMINAL IS NOT DISPOSITIVE OF THE QUESTION
BEFORE US.  TO BE SURE, FEDERAL COURTS NORMALLY ARE BOUND BY STATE
COURT INTERPRETATIONS RIGHT UNDER THE DOUBLE JEOPARDY CLAUSE.  IN SUCH
CASES, FEDERAL RATHER THAN STATE LAW GOVERNS.  SUFFICE IT TO SAY THAT A
30-DAY SENTENCE AND A $250 FINE IMPOSED FOR REFUSAL TO TESTIFY BEFORE A
GRAND JURY CONSTITUTES CRIMINAL PUNISHMENT WITHIN THE MEANING OF THE
DOUBLE JEOPARDY PROVISION OF THE BILL OF RIGHTS, AT LEAST WHERE THE
WITNESS' WILLINGNESS TO PURGE HIMSELF OF CONTEMPT BY TESTIFYING DOES
NOT RESULT IN THE VACATION OF THE SENTENCE.  SHILLITANI V. UNITED
STATES, 384 U.S. 364, RELIED UPON BY RESPONDENT, IS NOT TO THE
CONTRARY.  THERE, WE HELD "THAT THE CONDITIONAL NATURE OF (THE)
SENTENCES (ALLOWING THE CONTEMNORS TO PURGE THEMSELVES BY AGREEING TO
TESTIFY) RENDERED) EACH OF THE ACTIONS A CIVIL CONTEMPT PROCEEDING.  .
. . "  ID., AT 365.  IN THE PRESENT CASE, BY CONTRAST, THE JAIL
SENTENCE AND FINE WAS IMPOSED DESPITE PETITIONER'S WILLINGNESS TO
TESTIFY. 

NOR DOES THE CHARACTERIZATION OF THE TWO CONTEMPTS AS INVOLVING
DIFFERENT ACTS AVOID THE PROHIBITION AGAINST TWICE BEING PUT IN
JEOPARDY FOR THE SAME OFFENSE.  THE 30-DAY SENTENCE AND $250 FINE WERE
IMPOSED, INTER ALIA, FOR THE PETITIONER'S "REFUSAL AFTER BEING SWORN AS
A WITNESS TO ANSWER ANY LEGAL AND PROPER INTERROGATORIES."  THIS IS
PRECISELY THE OFFENSE CHARGED IN THE PRESENT INDICTMENT.  RESPONDENT
LISTS FIVE ELEMENTS /3/  FOR THE OFFENSE OF CRIMINAL CONTEMPT.  ALL OF
THESE ELEMENTS WERE NECESSARILY INCLUDED IN THE TRIAL COURT'S EARLIER
CITATION FOR "CIVIL" CONTEMPT.  PETITIONER NEED NOT "RUN THE GANTLET"
ON THIS OFFENSE A SECOND TIME.  /4/  GREEN V. UNITED STATES, 355 U.S.
184, 190. 

/1/  THIS CONTEMPT CITATION RESTED UPON SEC. 750 OF THE NEW YORK
JUDICIARY LAW. 

/2/  THE PRESENT INDICTMENT IS FOUNDED UPON THE FORMER SEC. 600 OF
THE NEW YORK PENAL LAW. 

/3/  RESPONDENT SAYS THAT "(IN ORDER TO PROVE THE CRIME OF CRIMINAL
CONTEMPT, THE FOLLOWING ELEMENTS MUST BE SHOWN: 

"1.  THAT THE DEFENDANT DID UNLAWFULLY AND CONTUMACIOUSLY REFUSE TO
ANSWER A LEGAL AND PROPER QUESTION BEFORE THE GRAND JURY. 

"2.  THAT THE QUORUM OF THE GRAND JURY WAS PRESENT AT ALL TIMES, ON
ANY SUCH DAY WHEN THE DEFENDANT TESTIFIED AND WHEN THE INDICTMENT WAS
VOTED. 

"3.  THAT THE QUESTION WHICH IS CLAIMED THAT THE DEFENDANT REFUSED
TO ANSWER WAS A LEGAL AND PROPER ONE. 

"4.  THAT ANY SUCH QUESTION ASKED OF THE DEFENDANT, AND WHICH, IT IS
CHARGED HE REFUSED TO ANSWER, WAS RELEVANT AND GERMANE TO THE
INVESTIGATION BEING CONDUCTED BY THE GRAND JURY. 

"5.  THAT THE DEFENDANT WAS DULY SWORN AS A WITNESS AND
CONTUMACIOUSLY AND UNLAWFULLY REFUSED TO ANSWER ANY SUCH LEGAL AND
PROPER QUESTION."  SUPPLEMENTAL BRIEF 6. 

ALL OF THESE ELEMENTS-- WITH THE EXCEPTION OF THE PROVISO "WHEN THE
INDICTMENT WAS VOTED" WHICH RELATES TO THE SUFFICIENCY OF THE
INDICTMENT RATHER THAN BEING A SEPARATE ELEMENT OF THE OFFENSE-- WERE
PLAINLY INCLUDED IN THE "CIVIL" CONTEMPT.  THE "WITNESS'S CONTUMACIOUS
AND UNLAWFUL REFUSAL TO ANSWER QUESTIONS," IBID., STEMS FROM THE
REFUSAL TO OBEY THE TRIAL COURT'S ORDER WHICH ALSO FORMED THE BASIS FOR
THE DECEMBER 15 CITATION. 

/4/  I AGREE WITH MR. JUSTICE BRENNAN'S CONCURRING OPINION IN ASHE
V. SWENSON, 397 U.S. 436, 453-454, WHERE HE SAID: 

"IN MY VIEW, THE DOUBLE JEOPARDY CLAUSE REQUIRES THE PROSECUTION,
EXCEPT IN MOST LIMITED CIRCUMSTANCES, TO JOIN AT ONE TRIAL ALL THE
CHARGES AGAINST A DEFENDANT THAT GROW OUT OF A SINGLE CRIMINAL ACT,
OCCURRENCE, EPISODE, OR TRANSACTION.  THIS 'SAME TRANSACTION' TEST OF
'SAME OFFENCE' NOT ONLY ENFORCES THE ANCIENT PROHIBITION AGAINST
VEXATIOUS MULTIPLE PROSECUTIONS EMBODIED IN THE DOUBLE JEOPARDY CLAUSE,
BUT RESPONDS AS WELL TO THE INCREASINGLY WIDESPREAD RECOGNITION THAT
THE CONSOLIDATION IN ONE LAWSUIT OF ALL ISSUES ARISING OUT OF A SINGLE
TRANSACTION OR OCCURRENCE BEST PROMOTES JUSTICE, ECONOMY, AND
CONVENIENCE."  (FOOTNOTES OMITTED.) 

IT WOULD BE REPUGNANT TO THESE VIEWS TO ALLOW A SEPARATE CRIMINAL
PROSECUTION AND PUNISHMENT FOR EACH DAY, HOUR, OR MINUTE THAT A WITNESS
REFUSED TO TESTIFY BEFORE A GRAND JURY. 
..END :















BD. OF REGENTS V. NEW LEFT EDUCATION PROJECT, 404 U.S. 541 


       BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM V. NEW

           LEFT EDUCATION PROJECT ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

           DISTRICT OF TEXAS

        NO. 70-55.  ARGUED DECEMBER 6, 1971-- DECIDED JANUARY 24,

           1972 


THREE-JUDGE DISTRICT COURT WAS IMPROPERLY CONVENED UNDER 28 U.S.C.
2281 TO CONSIDER CONSTITUTIONALITY OF APPELLANT'S RULES FOR CAMPUS
DISTRIBUTION OF CERTAIN KINDS OF LITERATURE AND FOR DUES SOLICITATION
FROM MEMBERS OF POLITICAL ORGANIZATIONS SINCE CHALLENGED RULES DO NOT
HAVE STATEWIDE APPLICABILITY OR EFFECTUATE STATEWIDE POLICY BUT AFFECT
ONLY THE FEW OF THE STATE'S HIGHER EDUCATION INSTITUTIONS THAT ARE
UNDER APPELLANT'S JURISDICTION; AND THE APPEAL FROM THAT COURT'S
JUDGMENT SHOULD THEREFORE HAVE BEEN TAKEN TO THE COURT OF APPEALS AND
NOT THIS COURT.  PP. 542-545. 

326 F.SUPP.  158, VACATED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.J.,
AND BRENNAN, STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, POST, P. 545.  POWELL AND REHNQUIST,
JJ., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE COMES HERE ON DIRECT APPEAL FROM THE RULING OF A THREE
JUDGE COURT DECLARING UNCONSTITUTIONAL AND ENJOINING ENFORCEMENT OF TWO
THE UNIVERSITY OF TEXAS SYSTEM.  326 F.SUPP.  158 (1970).  WE POSTPONED
CONSIDERATION OF OUR JURISDICTION TO A HEARING ON THE MERITS.  401 U.S.
935 (1971).  FOR REASONS EXPLAINED BELOW, WE HAVE CONCLUDED THAT WE
LACK JURISDICTION OF THIS APPEAL. 

THIS LITIGATION BEGAN WHEN THE BOARD OF REGENTS SUED THE NEW LEFT
EDUCATION PROJECT AND CERTAIN INDIVIDUALS IN A TEXAS COURT.  IN THAT
SUIT, THE REGENTS SOUGHT TO RESTRAIN DEFENDANTS FROM DISTRIBUTING A
NEWSPAPER AND MAKING EITHER COMMERCIAL OR NONCOMMERCIAL SOLICITATIONS
ON THE AUSTIN CAMPUS OF THE UNIVERSITY OF TEXAS EXCEPT IN COMPLIANCE
WITH APPELLANT'S RULES.  DEFENDANTS COUNTERED BY BRINGING THIS FEDERAL
SUIT TO ENJOIN FURTHER STATE COURT PROCEEDINGS ON THE GROUND THAT THE
RULES THAT THE REGENTS SOUGHT TO ENFORCE ABRIDGED DEFENDANTS' FIRST
AMENDMENT RIGHTS.  A THREE-JUDGE COURT MET AND DETERMINED THAT IT WAS
PROPERLY CONVENED PURSUANT TO 28 U.S.C. 2281.  IT THEN PERMITTED
CERTAIN OTHER ORGANIZATIONS AND INDIVIDUALS, INCLUDING APPELLEES HERE,
TO JOIN THE SUIT AS PLAINTIFFS AND DISMISSED THE ACTION AS TO THOSE
INVOLVED IN THE STATE COURT ADJUDICATION.  THEREAFTER, THE COURT
GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEES, DECLARING
UNCONSTITUTIONAL AND PERMANENTLY ENJOINING ENFORCEMENT OF TWO RULES,
REGENTS' RULES & REGS., C. VI, PT. 1, SECS. 6.11, 6.12 (APP. 173),
GOVERNING THE CAMPUS DISTRIBUTION OF CERTAIN KINDS OF LITERATURE AND
THE SOLICITATION OF DUES FROM MEMBERS OF POLITICAL ORGANIZATIONS. 

WE HAVE JURISDICTION TO REVIEW DIRECTLY THE LOWER COURT'S ORDER
GRANTING AN INJUNCTION ONLY IF THE CASE WAS ONE REQUIRED TO BE HEARD
AND DETERMINED BY A THREE-JUDGE COURT.  28 U.S.C. 1253.  SUCH A COURT
IS REQUIRED WHERE THE CHALLENGED STATUTE OR REGULATION, ALBEIT CREATED
OR AUTHORIZED BY A STATE LEGISLATURE, HAS STATEWIDE APPLICATION OR
EFFECTUATES A STATEWIDE POLICY.  BUT A SINGLE JUDGE, NOT A THREE-JUDGE
COURT, MUST HEAR THE CASE WHERE THE STATUTE OR REGULATION IS OF ONLY
LOCAL IMPORT.  MOODY V. FLOWERS, 387 U.S. 97 (1967); RORICK V. BOARD OF
COMMISSIONERS, 307 U.S. 208 (1939); EX PARTE PUBLIC NATIONAL BANK, 278
U.S. 101 (1928); EX PARTE COLLINS, 277 U.S. 565 (1928).  THIS RULE
ACHIEVES THE CONGRESSIONAL PURPOSE OF SAVING STATEWIDE REGULATORY
LEGISLATION FROM INVALIDATION THROUGH ORDINARY FEDERAL COURT EQUITY
SUITS, MINIMIZES THE BURDEN THAT THE THREE-JUDGE COURT PLACES UPON THE
FEDERAL JUDICIARY, AND AVOIDS UNDULY EXPANDING THE COURT'S CAREFULLY
LIMITED APPELLATE JURISDICTION.  PHILLIPS V. UNITED STATES, 312 U.S.
246, 250 (1941).  THUS, THE "TERM 'STATUTE' IN SEC. 2281 DOES NOT
ENCOMPASS LOCAL ORDINANCES OR RESOLUTIONS," MOODY V. FLOWERS, SUPRA, AT
101, NOR DOES IT INCLUDE A STATE STATUTE HAVING ONLY A LOCAL IMPACT,
EVEN IF ADMINISTERED BY A STATE OFFICIAL.  RORICK V. BOARD OF
COMMISSIONERS, SUPRA. 

APPELLANT BOARD OF REGENTS WAS CREATED BY THE TEXAS LEGISLATURE AND
IS CHARGED WITH GOVERNING THOSE EDUCATIONAL INSTITUTIONS IN THE
UNIVERSITY OF TEXAS SYSTEM.  TEXAS REV. CIV. STAT. ANN., ART. 2585
(1965).  THIS GOVERNANCE, WHICH SPECIFICALLY INCLUDES A RULEMAKING
POWER IBID., EXTENDS TO BUT THREE OF THE 23 FOUR-YEAR STATE COLLEGES
AND UNIVERSITIES LISTED IN THE HIGHER EDUCATION COORDINATING ACT OF
1965, ID., ART. 2919-- 2, SEC. 2 (SUPP. 1970-1971):  THE UNIVERSITY OF
TEXAS AT AUSTIN, EL PASO, AND ARLINGTON.  /1/  IN ADDITION TO THE 20
SENIOR COLLEGES AND UNIVERSITIES FOR WHICH APPELLANT BEARS NO
RESPONSIBILITY, TEXAS HAS AT LEAST 31 PUBLIC JUNIOR COLLEGES THAT ARE
NOT WITHIN THE UNIVERSITY OF TEXAS SYSTEM.  IBID.  IT IS TRUE THAT THE
BOARD OF REGENTS GOVERNS NUMEROUS MEDICAL AND OTHER SPECIALIZED SCHOOLS
AND BRANCHES, ID., ARTS. 2603E TO 2603I, 2604B TO 2606D, BUT THESE ARE
ONLY SOME OF THE SPECIALIZED INSTITUTIONS THAT TEXAS DENOMINATES AS
AGENCIES OF HIGHER EDUCATION.  ID., ART. 2919E-- 2, SECS. 2(E)-- (G)
(SUPP. 1970-1971.  IT IS THEREFORE APPARENT THAT THE REGENTS'
RULEMAKING POWER AND THE RULES AT ISSUE IN THIS LITIGATION EXTEND TO
BUT A FRACTION OF THE CAMPUSES IN THE TEXAS SYSTEM OF HIGHER PUBLIC
EDUCATION.  THESE RULES CAN SCARCELY BE DESCRIBED AS MATTERS OF
STATEWIDE CONCERN OR EXPRESSIONS OF A STATEWIDE POLICY WHEN A LARGE
PERCENTAGE OF TEXAS COLLEGES AND UNIVERSITIES ARE UNAFFECTED BY THEM
AND COULD NOT BE AFFECTED BY ANY PRONOUNCEMENT THAT A FEDERAL COURT
MIGHT MAKE ON THEIR CONSTITUTIONALITY.  THERE IS NO SUGGESTION OR
INDICATION OF ANY KIND THAT THE REGENTS' RULES ARE SIMILAR TO THOSE FOR
OTHER SCHOOLS OR ARE REQUIRED BY OR EXPRESS STATEWIDE POLICY.  /2/  THE
SITUATION HERE IS COMPARABLE TO THAT IN MOODY V. FLOWERS, SUPRA, WHERE
WE HELD THAT THREE-JUDGE COURTS WERE IMPROPERLY CONVENED TO CONSIDER
CHALLENGES TO A STATE STATUTE APPLYING TO A PARTICULAR COUNTY AND TO A
COUNTY CHARTER BASED UPON A STATE STATUTE.  THE FACT THAT SEVERAL
CAMPUSES OVER WHICH THE BOARD OF REGENTS HAS JURISDICTION ARE LOCATED
IN DIFFERENT PARTS OF THE STATE DOES NOT IN OUR VIEW MAKE THEIR RULES
OF GENERAL APPLICABILITY FOR THE PURPOSE OF 28 U.S.C. 2281.  THESE
RULES, APPLYING ONLY TO SOME OF THE HIGHER EDUCATIONAL INSTITUTIONS OF
THE STATE, ARE OF LIMITED SIGNIFICANCE AND DO NOT PARTAKE OF THE
QUALITY AND DIGNITY OF THOSE STATE STATUTES OR POLICIES THAT THREE
JUDGE COURTS WERE DESIGNED TO CONSIDER.  WE ARE PERSUADED THAT A
CONTRARY VIEW OF THIS CASE WOULD BE INCONSISTENT WITH OUR OFT-REPEATED
ADMONITION THAT THE THREE-JUDGE COURT STATUTE IS TO BE STRICTLY
CONSTRUED.  E.G., ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544
(1969); PHILLIPS V. UNITED STATES, 312 U.S.,AT 251. 

SINCE THE THREE-JUDGE COURT WAS IMPROPERLY CONVENED, APPEAL LIES NOT
HERE BUT TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.  SO THAT
APPELLANT MAY BE ABLE, IF IT DESIRES, TO PERFECT A TIMELY APPEAL, WE
VACATE THE JUDGMENT BELOW AND REMAND THE CASE WITH INSTRUCTION THAT THE
COURT ENTER A FRESH DECREE.  PHILLIPS V. UNITED STATES, SUPRA, AT 254. 

              JUDGMENT VACATED AND REMANDED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  APPELLANT ALSO MENTIONS THE UNIVERSITY OF TEXAS AT SAN ANTONIO
AND OF THE PERMIAN BASIN BUT DOES NOT TAKE ISSUE WITH APPELLEES'
CONTENTION THAT THESE SCHOOLS ARE MERELY IN THE PLANNING STAGE (BRIEF
FOR APPELLEES 2 N. 1). 

/2/  IT HAS LONG BEEN SETTLED THAT A THREE-JUDGE COURT IS PROPER
EVEN IN A SUIT AGAINST A LOCAL OFFICIAL, ALTHOUGH LOCALIZED IN HIS
GEOGRAPHIC ACTIVITIES AND MODE OF HIS SELECTION, WHEN HE IS ENGAGED IN
ENFORCING A POLICY OF STATEWIDE APPLICATION WHOSE CONSTITUTIONALITY IS
CHALLENGED.  SPIELMAN MOTOR SALES CO. V. DODGE, 295 U.S. 89 (1935);
RORICK V. BOARD OF COMMISSIONERS, 307 U.S. 208, 212 (1939).  THE THRUST
OF OUR MORE RECENT DECISION IN ALABAMA STATE TEACHERS ASSN. V. ALABAMA
PUBLIC SCHOOL AND COLLEGE AUTHORITY, 393 U.S. 400 (1969), IS TO THE
SAME EFFECT.  THE ISSUE THERE WAS A LEGISLATIVE DIRECTION TO THE
ALABAMA PUBLIC SCHOOL AND HOUSING AUTHORITY TO ISSUE BONDS FOR THE
CONSTRUCTION OF A PUBLIC UNIVERSITY IN MONTGOMERY, ALABAMA.  APPELLANTS
CHALLENGED THAT ACTION, ALTHOUGH HAVING A LOCAL IMPACT, AS EXPRESSIVE
OF AN OFFICIAL, STATEWIDE POLICY TO MAINTAIN A RACIALLY IDENTIFIABLE,
DUAL SYSTEM OF EDUCATION, AND THE DISTRICT COURT DENIED RELIEF.  THE
DISSENT ON THE MERITS FROM SUMMARY AFFIRMANCE, DISAGREEING WITH MR.
JUSTICE HARLAN'S DISSENT ON JURISDICTIONAL GROUNDS, AGREED THAT A
STATEWIDE POLICY WAS SUFFICIENTLY IMPLICATED TO SUSTAIN THE
JURISDICTION OF THE THREE-JUDGE COURT AND THE DIRECT APPEAL HERE. 
BOARD OF VISITORS V. NORRIS, POST, P. 907, AFF'G 327 F.SUPP.  1368 (ED
VA. 1971), RESTS UPON THE SAME BASIS.  IN MC.LAURIN V. OKLAHOMA STATE
REGENTS, 339 U.S. 637 (1950), THE COURT ENTERTAINED AN APPEAL FROM THE
JUDGMENT OF A THREE-JUDGE DISTRICT COURT UPHOLDING AN OKLAHOMA STATUTE
PROVIDING THAT NEGROES, THOUGH ADMISSIBLE TO WHITE GRADUATE SCHOOLS,
MUST GET THAT EDUCATION ON A SEGREGATED BASIS. 

NOTHING IN THE RECORD BEFORE US IN THIS CASE INDICATES THAT THE
REGULATIONS CHALLENGED HERE REPRESENT GENERAL STATE POLICY, REFLECT A
STATUTORY COMMAND, OR APPLY TO MORE THAN A FRACTION OF THE TEXAS HIGHER
EDUCATIONAL INSTITUTIONS.  IT IS THUS DIFFICULT TO UNDERSTAND THE
DISSENT'S RELIANCE ON THE ALABAMA, NORRIS, AND MCLAURIN CASES. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHEN I AUTHORED MOODY V. FLOWERS, 387 U.S. 97, I THOUGHT I WAS
WRITING A CHAPTER ON FEDERALISM WITHIN A STATE.  CITIES, COUNTIES, AND
THE STATE AS A WHOLE CONSTITUTE THAT FEDERALISM.  THE THREE-JUDGE-COURT
STATUTE, 28 U.S.C. 2281, SPEAKS OF "THE ENFORCEMENT, OPERATION OR
EXECUTION OF ANY STATE STATUTE."  A CITY ORDINANCE OR A COUNTY
REGULATION DOES NOT MEET THAT REQUIREMENT, AND SO THE COUNTY
REGULATIONS INVOLVED IN MOODY DID NOT SATISFY THE STATUTE THOUGH
ENACTED BY THE STATE.  IF THE SOURCE OF THE AUTHORITY IS STATE ACTION,
THE STATUTE IS PRESUMABLY SATISFIED, SINCE NORMALLY, OF COURSE, STATE
LAWS HAVE AN IMPACT ON ACTIVITIES IN EVERY CITY AND EVERY COUNTY.  BUT
WHERE A STATE LAW IS NOT OF "STATEWIDE CONCERN" AND INVOLVES ONLY
"LEGISLATION AFFECTING A LOCALITY" (RORICK V. BOARD OF COMMISSIONERS,
307 U.S. 208, 213), THEN THE POLICY OF 28 U.S.C. 2281 IS DEEMED NOT
SERVED. 

BUT A STATE'S UNIVERSITY SYSTEM, INVOLVING, AS DOES THIS ONE, 17
INSTITUTIONS, IS PLAINLY OF "STATEWIDE CONCERN" EVEN THOUGH NOT EVERY
COUNTY HAS A UNIVERSITY.  /1/ 

IN ADDITION TO ITS SUPERVISION OF THE UNIVERSITY OF TEXAS AT AUSTIN,
TEXAS REV. CIV. STAT. ANN., ART. 2584 ET SEQ., AND THE OTHER
INSTITUTIONS INCLUDED IN THE 17 THAT ARE IN THE STATE UNIVERSITY
SYSTEM, /2/  THE BOARD OF REGENTS ALSO OVERSEES A NUMBER OF OTHER MAJOR
INSTITUTIONS OF HIGHER EDUCATION WITH TEXAS' UNIVERSITY AND COLLEGE
SYSTEM:  UNIVERSITY OF TEXAS AT EL PASO, ID., ART. 2633, UNIVERSITY OF
TEXAS AT ARLINGTON, ID., ART. 2620A, UNIVERSITY OF TEXAS AT SAN
ANTONIO, ID., ART. 2606C-- 3, UNIVERSITY OF TEXAS AT DALLAS, ID., ART.
2606C-3.1, UNIVERSITY OF TEXAS OF THE PERMIAN BASIN, ID., ART. 2606C--
4, INSTITUTES FOR URBAN STUDIES IN THE DALLAS-FT. WORTH AREA AND IN
HOUSTON, ID., ART. 2606D, AS WELL AS OTHER INSTITUTIONS OF LEARNING. 
E.G., ID., ART. 2585D(3). 

THE MATTER INVOLVES MORE THAN STATE "LEGISLATION AFFECTING A
LOCALITY":  IT CONCERNS A UNIVERSITY SYSTEM WITH CAMPUSES SCATTERED
ACROSS THE STATE AND SERVING THE EDUCATIONAL NEEDS OF THOSE FROM EVERY
CITY, FROM EVERY COUNTY, WHO SEEK UNDERGRADUATE OR GRADUATE EDUCATION. 
/3/ 

SINCE THE CASE IS PROPERLY HERE, I WOULD REACH THE MERITS. 

/1/  DURING ORAL ARGUMENT, COUNSEL FOR APPELLANT INDICATED THAT ITS
AUTHORITY EXTENDED OVER SOME "17 COMPONENT INSTITUTIONS IN THE SYSTEM,"
STRETCHING FROM EL PASO ON THE FAR WESTERN TIP OF THE STATE, TO
GALVESTON ON THE GULF COAST, AND FROM SAN ANTONIO IN THE SOUTH TO
DALLAS IN THE NORTH.  TR. OF ORAL ARG. 6-7.  "(AT THE UNIVERSITY OF
TEXAS AT AUSTIN ALONE," COUNSEL TOLD US, "THERE ARE 40,000 STUDENTS,
AND OVER 7,000 EMPLOYEES ON A 265-ACRE CAMPUS.  WHEN YOU INCLUDE ALL
THE OTHER CAMPUSES AND INSTITUTIONS, I'S HARD PUT TO SAY HOW MANY
PEOPLE ARE INVOLVED; BUT MANY, MANY THOUSANDS."  ID., AT 10. 

/2/  SEE N. 1, SUPRA. 

/3/  THAT A "STATEWIDE CONCERN" SUFFICIENT TO REQUIRE A THREE-JUDGE
COURT IS PRESENT IS EVIDENCED BY ALABAMA STATE TEACHERS ASSN. V.
ALABAMA PUBLIC SCHOOL AND COLLEGE AUTHORITY, 393 U.S. 400 (1969), A
CASE OF RECENT VINTAGE WHICH THE COURT MUST OVERRULE TO REACH ITS
RESULT TODAY.  THERE, WE SUSTAINED A THREE-JUDGE-COURT ACTION DEALING
WITH STATE BONDING AUTHORITY FOR A SINGLE COLLEGE IN A SINGLE TOWN. 
SEE ALSO MCLAURIN V. OKLAHOMA STATE REGENTS, 339 U.S. 637 (1950) (THREE
JUDGE COURT REQUIRED FOR ACTION RELATING TO SINGLE STATE GRADUATE
SCHOOL).  THE PRESENT CASE IS AN EVEN STRONGER ONE FOR THE CONVENTION
OF A THREE-JUDGE COURT BECAUSE THE RULES IN ISSUE TOUCH UPON THE
FREEDOM OF EXPRESSION IN COLLEGES AND UNIVERSITIES IN ALL FOUR CORNERS
OF THE STATE OF TEXAS. 

AND SEE BOARD OF VISITORS V. NORRIS, POST, P. 907, AFF'G 327
F.SUPP.  1368 (ED VA. 1971), DECIDED ABOUT THREE MONTHS AGO.  THERE,
THE THREE-JUDGE COURT STRUCK DOWN AS UNCONSTITUTIONAL A SINGLE ITEM IN
A STATE ACT DEALING WITH BUT ONE OF THE STATE'S COLLEGES.  THIS COURT
UNANIMOUSLY AFFIRMED THAT JUDGMENT. 

ALABAMA STATE TEACHERS ASSN., MCLAURIN, AND NORRIS DID NOT, AS IS
SUGGESTED BY THE MAJORITY, DEPEND UPON THE EXISTENCE OF A PERVASIVE
STATE POLICY OF SEGREGATION EXTENDING BEYOND THE EDUCATIONAL
INSTITUTIONS THERE INVOLVED.  THE STATEWIDE CONCERN WHICH JUSTIFIED THE
CONVENTION OF THE THREE-JUDGE COURT IN THOSE CASES, CF. SPIELMAN MOTOR
SALES CO. V. DODGE, 295 U.S. 89 (1935), WAS THE UNCONSTITUTIONAL MANNER
IN WHICH STATE INSTITUTIONS, SERVING THE ENTIRE STATE, WERE BEING
OPERATED.  THAT SAME KIND OF OPERATION OF STATEWIDE INSTRUCTIONS IS
ALLEGED IN THE PRESENT CASE. 

W. O. SHULTZ II, ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED THE
CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF WERE CRAWFORD C. MARTIN,
ATTORNEY GENERAL, NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL, ALFRED
WALKER, EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND J. C. -AVIS, PAT
BAILEY, AND JAMES C. MCCOY, ASSISTANT ATTORNEYS GENERAL.     DAVID R.
RICHARDS ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WAS
MELVIN L. WULF. 
..END :











UNITED STATES V. CHAS. PFIZER & CO., INC., 404 U.S. 548 


       UNITED STATES V. CHAS. PFIZER & CO., INC. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 70-72.  ARGUED JANUARY 12, 1972-- DECIDED JANUARY 24,

           1972 


426 F.2D 32, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE STEWART, MR. JUSTICE WHITE, AND MR. JUSTICE MARSHALL
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL MCLAREN, HARRY R. SACHSE, HOWARD E. SHAPIRO,
AND HARRY G. SKLARSKY. 

JOHN E. F. WOOD ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF FOR CHAS. PFIZER & CO., INC., WERE JUDSON A. PARSONS, JR., J.
PAUL MCGRATH, PAUL SHERMAN, AND ARTHUR G. CONNOLLY.  ROY W. MCDONALD,
RALSTONE R. IRVINE, AND RICHARD Y. HOLCOMB FILED A BRIEF FOR RESPONDENT
AMERICAN CYANAMID CO. MERRELL E. CLARK, JR., AND HENRY J. ZAFIAN FILED
A BRIEF FOR RESPONDENT BRISTOL-MYERS CO.
..END :



















CONNOR V. WILLIAMS, 404 U.S. 549 


       CONNOR ET AL. V. WILLIAMS, GOVERNOR OF MISSISSIPPI, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF MISSISSIPPI

       NO. 71-221.  DECIDED JANUARY 24, 1972 


APPELLANTS CHALLENGE A FEDERAL COURT-ORDERED REAPPORTIONMENT PLAN FOR
THE 1971 ELECTIONS OF MISSISSIPPI STATE LEGISLATORS, WHICH PERMITTED A
TOTAL VARIANCE OF APPROXIMATELY 19% BETWEEN THE LARGEST AND SMALLEST
HOUSE AND SENATE DISTRICTS.  THE COURT PLAN ALSO PROVIDED FOR TEMPORARY
MULTI-MEMBER DISTRICTS TO FILL ABOUT ONE-FIFTH OF THE SEATS IN 1971,
BUT ORDERED THE APPOINTMENT OF A SPECIAL MASTER IN JANUARY 1972 TO
DETERMINE THE FEASIBILITY OF DIVIDING THESE INTO EQUAL-POPULATION
DISTRICTS FOR THE 1975 AND 1979 ELECTIONS.  HELD: 

1.  EVEN IF IT BE ASSUMED THAT CONGRESSIONAL REDISTRICTING DECISIONS
OF THIS COURT, WHICH APPELLANTS RELY ON, ARE CONTROLLING HERE, IT DOES
NOT FOLLOW THAT THE 1971 ELECTIONS SHOULD BE INVALIDATED, AND IN THE
CIRCUMSTANCES OF THIS CASE THOSE ELECTIONS WILL NOT BE DISTURBED. 

2.  FURTHER CONSIDERATION IS INAPPROPRIATE UNTIL COMPLETION OF THE
PROCEEDINGS TO CONSIDER CREATION OF SINGLE-MEMBER DISTRICTS. 

330 F.SUPP.  506, VACATED IN PART, AND REMANDED. 

PER CURIAM. 

AFTER DETERMINING THAT THE REAPPORTIONMENT PLAN FOR THE STATE SENATE
AND HOUSE OF REPRESENTATIVES, PASSED BY THE MISSISSIPPI LEGISLATURE IN
JANUARY 1971, FAILED TO COMPLY WITH THE EQUAL PROTECTION CLAUSE BECAUSE
OF A TOTAL VARIANCE OF 26% BETWEEN THE LARGEST AND THE SMALLEST
SENATORIAL DISTRICT (A DETERMINATION THAT WAS NOT APPEALED), /1/  THE
DISTRICT COURT FASHIONED ITS OWN PLAN FOR THE QUADRENNIAL ELECTIONS FOR
BOTH HOUSES SCHEDULED FOR 1971, AND THESE ELECTIONS WERE HELD UNDER THE
COURT'S PLAN.  CONNOR V. JOHNSON, 330 F.SUPP.  506 (SD MISS.  1971). 
APPELLANTS NOW CHALLENGE THE CONSTITUTIONALITY OF THE COURT'S PLAN,
CONTENDING THAT A TOTAL VARIANCE OF 18.9% BETWEEN THE LARGEST AND
SMALLEST SENATE DISTRICT AND ONE OF 19.7% BETWEEN THE LARGEST AND
SMALLEST HOUSE DISTRICT REQUIRE THAT THE COURT'S DISTRICTING PLAN BE
VOIDED, A NEW PLAN INSTITUTED, AND NEW ELECTIONS HELD.  /2/ 

APPELLANTS RELY ON OUR RECENT CASES INVALIDATING CONGRESSIONAL
REDISTRICTING STATUTES THAT CONTAINED TOTAL VARIATIONS OF 5.97%,
KIRKPATRICK V. PREISLER, 394 U.S. 526 (1969), AND OF 13.1%, WELLS V.
ROCKEFELLER, 394 U.S. 542 (1969), BETWEEN THE LARGEST AND THE SMALLEST
DISTRICTS.  THESE DECISIONS DO NOT SQUARELY CONTROL THE INSTANT APPEAL
SINCE THEY DO NOT CONCERN STATE LEGISLATIVE APPORTIONMENT, BUT THEY DO
RAISE SUBSTANTIAL QUESTIONS CONCERNING THE CONSTITUTIONALITY OF THE
DISTRICT COURT'S PLAN AS A DESIGN FOR PERMANENT APPORTIONMENT. 

BUT CONCEDING, ARGUENDO, THAT THE DISTRICT COURT'S PLAN DOES NOT
PRECISELY SQUARE WITH FOURTEENTH AMENDMENT REQUIREMENTS, IT DOES NOT
NECESSARILY FOLLOW THAT THE 1971 ELECTIONS MUST BE INVALIDATED AND NEW
ELECTIONS ORDERED.  MANN V. DAVIS, 238 F.SUPP.  458 (ED VA. 1964),
AFF'D SUB NOM.  HUGHES V. WMCA, 379 U.S. 694 (1965); TOOMBS V. FORTSON,
240 F.SUPP.  65, 71 (ND GA. 1965), AFF'D, 384 U.S. 210 (1966); DRUM V.
SEAWELL, 249 F.SUPP.  877, 881-882 (MDNC 1965), AFF'D, 383 U.S. 831
(1966).  IN THE CIRCUMSTANCES OF THIS CASE, WE DECLINE TO DISTURB THESE
ELECTIONS. 

THE PROSPECTIVE VALIDITY OF THE PLAN FOR THE 1975 ELECTIONS, ABSENT
LEGISLATIVE ACTION, POSES DIFFERENT ISSUES, BUT WE NEED NOT DECIDE
THOSE QUESTIONS AT THE PRESENT TIME.  UNDER THE DISTRICT COURT PLAN,
APPROXIMATELY ONE-FIFTH OF THE SEATS IN BOTH HOUSES WERE FILLED BY AT
LARGE ELECTIONS FROM TEMPORARY COUNTYWIDE DISTRICTS IN 1971.  /3/  THE
DISTRICT COURT RETAINED JURISDICTION OVER THESE THREE COUNTIES AND
ORDERED THAT A SPECIAL MASTER BE APPOINTED IN JANUARY 1972 TO "TAKE
TESTIMONY AND MAKE FINDINGS AS TO WHETHER THE COUNTIES OF HINDS,
HARRISON, AND JACKSON MAY FEASIBLY BE DIVIDED INTO DISTRICTS OF
SUBSTANTIALLY EQUAL NUMBERS IN POPULATION FOR THE ELECTIONS OF 1975 AND
1979."  330 F.SUPP.,AT 519.  SUCH PROCEEDINGS SHOULD GO FORWARD AND BE
PROMPTLY CONCLUDED, FOR, AS THIS COURT HAS EMPHASIZED, "WHEN DISTRICT
COURTS ARE FORCED TO FASHION APPORTIONMENT PLANS, SINGLE-MEMBER
DISTRICTS ARE PREFERABLE TO LARGE MULTI-MEMBER DISTRICTS AS A GENERAL
MATTER."  CONNOR V. JOHNSON, 402 U.S. 690, 692 (1971).  PENDING
COMPLETION OF THOSE PROCEEDINGS, WE DEEM IT INAPPROPRIATE TO GIVE
FURTHER CONSIDERATION TO THIS CASE.  IF WE ARE TO CONSIDER THE
APPLICABILITY OF PREISLER AND WELLS TO STATE LEGISLATIVE DISTRICTS, IT
WOULD BE PREFERABLE TO HAVE BEFORE US A FINAL JUDGMENT WITH RESPECT TO
THE ENTIRE STATE.  /4/  TO ACCOMPLISH THIS RESULT AND TO PRESERVE THE
RIGHT TO APPEAL FROM SUCH A JUDGMENT, THE JUDGMENT OF THE DISTRICT
COURT IS VACATED, EXCEPT INSOFAR AS IT APPLIED TO THE 1971 ELECTIONS,
AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/  A THREE-JUDGE COURT HAS TWICE PREVIOUSLY VOIDED APPORTIONMENT
PLANS ENACTED BY THE MISSISSIPPI LEGISLATURE BECAUSE THEY EMBODIED
IMPERMISSIBLE POPULATION VARIANCES.  CONNOR V. JOHNSON, 279 F.SUPP. 
619 (SD MISS.  1966), AFF'D, 386 U.S. 483 (1967) (APPEAL LIMITED TO
CONGRESSIONAL DISTRICTING).  THIS COURT HAS ALREADY CONSIDERED AN
INTERLOCUTORY APPEAL IN THE INSTANT CASE.  CONNOR V. JOHNSON, 402 U.S.
690, 403 U.S. 928 (1971). 

/2/  THERE ARE 52 SEATS IN THE STATE SENATE AND 122 SEATS IN THE
STATE HOUSE OF REPRESENTATIVES.  ACCORDING TO THE 1970 CENSUS,
MISSISSIPPI HAS A POPULATION OF 2,216,912, MAKING THE IDEAL SINGLE
MEMBER SENATE DISTRICT ONE CONTAINING 42,633 PERSONS AND THE IDEAL
SINGLE-MEMBER HOUSE DISTRICT ONE CONTAINING 18,171 PERSONS.  UNDER THE
COURT'S PLAN, SENATE DISTRICT 29 (46,719 PERSONS, ONE SENATOR) IS 9.6%
UNDERREPRESENTED, AND DISTRICT 19 (77,320 PERSONS, TWO SENATORS) IS
9.3% OVERREPRESENTED.  HOUSE DISTRICT 18 (32,772 PERSONS, TWO
REPRESENTATIVES) IS 9.8% OVER PRESENTED, AND THE HOUSE DISTRICT 3
(59,912 PERSONS, THREE REPRESENTATIVES) IS 9.9% UNDERREPRESENTED. 

/3/  LEGISLATORS ELECTED FROM TEMPORARY MULTI-MEMBER DISTRICTS:

                SENATORS      REPRESENTATIVES 

     HINDS COUNTY 5 12 

     HARRISON COUNTY 3 7 

     JACKSON COUNTY 2 6 /3A/

                            10      25 

/3A/  WITH GEORGE COUNTY. 

THUS, 10 OUT OF 52 SENATORS (19%) AND 25 OUT OF 122 REPRESENTATIVES
(21%) WERE ELECTED FROM TEMPORARY MULTI-MEMBER DISTRICTS IN 1971. 

/4/  MEANWHILE, IT IS POSSIBLE THAT THE STATE LEGISLATURE WILL ADOPT
A PLAN OF ITS OWN.  DURING THE COURSE OF THIS LITIGATION, THE DISTRICT
COURT HAS EMPHASIZED THAT "THE EXERCISE OF THIS UNAVOIDABLE JUDICIAL
DUTY (DRAFTING AN APPORTIONMENT PLAN) CANNOT, DOES NOT, AND WILL NOT IN
ANY WAY TIE THE HANDS OF THE LEGISLATURE AT ANY TIME TO ADOPT AND ENACT
ANY PLAN OF ITS OWN FOR THE REAPPORTIONMENT OF ITS MEMBERSHIP SO LONG
AS IT COMPLIES WITH CONSTITUTIONAL REQUIREMENTS."  CONNOR V. JOHNSON,
265 F.SUPP.  492, 494 (SD MISS.  1967).  THIS COURT HAS FREQUENTLY
EMPHASIZED THAT "LEGISLATIVE REAPPORTIONMENT IS PRIMARILY A MATTER FOR
LEGISLATIVE CONSIDERATION AND DETERMINATION, AND . . . JUDICIAL RELIEF
BECOMES APPROPRIATE ONLY WHEN A LEGISLATURE FAILS TO REAPPORTION
ACCORDING TO FEDERAL CONSTITUTIONAL REQUISITES IN A TIMELY FASHION
AFTER HAVING HAD AN ADEQUATE OPPORTUNITY TO DO SO."  REYNOLDS V. SIMS,
377 U.S. 533, 586 (1964).  SEE ALSO BURNS V. RICHARDSON, 384 U.S. 73,
85 (1966); ELY V. KLAHR, 403 U.S. 108, 114 N. 6 (1971). 
..END :



















IN RE LITTLE, 404 U.S. 553 


       IN RE LITTLE

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR COURT

           DIVISION, GENERAL COURT OF JUSTICE, COUNTY OF FORSYTH,

           NORTH CAROLINA

        NO. 71-244.  DECIDED JANUARY 24, 1972 


PETITIONER DEFENDED HIMSELF AT HIS CRIMINAL TRIAL WHEN HIS MOTION FOR
CONTINUANCE, BY REASON OF ANOTHER TRIAL ENGAGEMENT OF HIS RETAINED
COUNSEL, WAS DENIED.  THE COURT ADJUDGED PETITIONER IN CONTEMPT FOR
STATING IN SUMMATION AFTER THE CLOSE OF EVIDENCE THAT THE COURT WAS
BIASED AND HAD PREJUDGED HIS CASE, AND THAT PETITIONER WAS A POLITICAL
PRISONER.  HELD:  PETITIONER'S STATEMENTS DID NOT CONSTITUTE CRIMINAL
CONTEMPT, AS THEY WERE NOT UTTERED IN A BOISTEROUS TONE, DID NOT
ACTUALLY DISRUPT THE COURT PROCEEDING, OR CONSTITUTE AN IMMINENT THREAT
TO THE ADMINISTRATION OF JUSTICE.  HOLT V. VIRGINIA, 381 U.S. 131. 

CERTIORARI GRANTED; REVERSED. 

PER CURIAM. 

PETITIONER WAS CONVICTED OF COMMITTING A DIRECT CONTEMPT OF A JUDGE
OF THE DISTRICT COURT DIVISION OF THE FORSYTH COUNTY, NORTH CAROLINA,
GENERAL COURT OF JUSTICE.  HE WAS SENTENCED TO 30 DAYS IN JAIL AS
SUMMARY PUNISHMENT AUTHORIZED BY GENERAL STATUTES OF NORTH CAROLINA
SECS. 5-1(1) AND 5-6.  HE SOUGHT HABEAS CORPUS IN THE SUPERIOR COURT
DIVISION OF THE GENERAL COURT.  THAT COURT DENIED RELIEF AFTER HEARING
ORAL ARGUMENT BUT WITHOUT RECEIVING EVIDENCE.  BOTH THE NORTH CAROLINA
COURT OF APPEALS AND THE NORTH CAROLINA SUPREME COURT DENIED REVIEW BY
CERTIORARI. 

NEITHER THE ORDER OF THE DISTRICT COURT NOR THE JUDGMENT OF THE
SUPERIOR COURT DETAILS THE EVENTS LEADING TO THE CONVICTION.  THE
PETITION RECITES THESE EVENTS, HOWEVER, AND THE STATE'S RESPONSE DOES
NOT CHALLENGE THE ACCURACY OF THE RECITAL.  PETITIONER'S TRIAL ON A
CHARGE OF CARRYING A CONCEALED WEAPON WAS SCHEDULED FOR MARCH 8, 1971,
IN THE DISTRICT COURT AT WINSTON-SALEM.  PETITIONER APPEARED AND FILED
A WRITTEN MOTION FOR CONTINUANCE BY REASON OF ANOTHER TRIAL ENGAGEMENT
OF HIS RETAINED COUNSEL IN CHARLOTTE.  THE TRIAL JUDGE DENIED THE
MOTION AND PROCEEDED WITH THE TRIAL.  WITHOUT BENEFIT OF COUNSEL
PETITIONER ATTEMPTED TO DEFEND HIMSELF.  IN SUMMATION FOLLOWING THE
CLOSE OF THE EVIDENCE PETITIONER MADE STATEMENTS THAT THE COURT WAS
BIASED AND HAD PREJUDGED THE CASE AND THAT PETITIONER WAS A POLITICAL
PRISONER.  THE TRIAL JUDGE ADJUDGED PETITIONER IN CONTEMPT FOR THESE
STATEMENTS.  THE COURT'S ORDER RECITES THAT "(THE COURT AT THIS POINT
INFORMED THE (PETITIONER) THAT HE WAS IN CONTEMPT AS THE COURT FELT
THAT THESE REMARKS WERE VERY DISRESPECTFUL AND TENDED TO SUBVERT AND
PREVENT JUSTICE," AND FURTHER RECITES THAT "(THE COURT CONCLUDES ON THE
FOREGOING FACTS THAT THE CONDUCT OF THE (PETITIONER) AND THE WORDS
SPOKEN BY HIM IN THE PRESENCE OF THE COURT WERE CONTEMPTUOUS, THAT THEY
REFLECTED ON THE INTEGRITY OF THE COURT AND TENDED TO SUBVERT AND
PREVENT JUSTICE." 

THE ORDER ALSO RECITES, "AS THE DEFENDANT WAS BEING REMOVED FROM THE
COURTROOM BY DEPUTY SHERIFF (FOLLOWING THE CONTEMPT ADJUDICATION), HE
SPOKE OUT AND CALLED THE UNDERSIGNED PRESIDING JUDGE A M . . . F . . .
."  THIS LANGUAGE IN A COURTROOM IS, OF COURSE, REPREHENSIBLE AND
CANNOT BE TOLERATED.  BUT THIS WAS NOT RELIED UPON BY EITHER THE
DISTRICT COURT OR THE SUPERIOR COURT FOR THE CONVICTION AND SENTENCE
AND THE STATE DEFENDS THE CONVICTION OF THIS COURT WITHOUT ANY
REFERENCE TO IT.  WE THEREFORE ALSO LAY IT ASIDE FOR THE PURPOSE OF OUR
DECISION. 

THE SUPERIOR COURT HAD THE DISTRICT COURT ORDER BEFORE IT BUT NO
OTHER EVIDENCE.  THE SUPERIOR COURT JUDGMENT TRACKS THE STATUTORY
LANGUAGE IN RECITING THAT PETITIONER'S STATEMENTS "DIRECTLY TENDED TO
INTERRUPT ITS PROCEEDINGS AND TO IMPAIR THE RESPECT DUE THE DISTRICT
COURT'S AUTHORITY," AND, FURTHER, THE DISTRICT COURT'S CONCLUSION THAT
THE STATEMENTS "REFLECTED ON THE INTEGRITY OF THE COURT AND TENDED TO
SUBVERT AND PREVENT JUSTICE' AMOUNTED TO A FINDING BY THE DISTRICT
COURT THAT THE WORDS WERE WILFUL AND INTENTIONALLY USED AND THAT THE
WORDS USED TENDED TO INTERRUPT THE COURT'S PROCEEDINGS AND TO IMPAIR
THE RESPECT DUE ITS AUTHORITY."  /1/ 

WE HOLD THAT IN THE CONTEXT OF THIS CASE PETITIONER'S STATEMENTS IN
SUMMATION DID NOT CONSTITUTE CRIMINAL CONTEMPT.  THE COURT'S DENIAL OF
THE CONTINUANCE FORCED PETITIONER TO ARGUE HIS OWN CAUSE.  HE WAS
THEREFORE CLEARLY ENTITLED TO AS MUCH LATITUDE IN CONDUCTING HIS
DEFENSE AS WE HAVE HELD IS ENJOYED BY COUNSEL VIGOROUSLY ESPOUSING A
CLIENT'S CAUSE.  IN RE MCCONNELL, 370 U.S. 230 (1962).  THERE IS NO
INDICATION, AND THE STATE DOES NOT ARGUE, THAT PETITIONER'S STATEMENTS
WERE UTTERED IN A BOISTEROUS TONE OR IN ANY WISE ACTUALLY DISRUPTED THE
COURT PROCEEDING.  THEREFORE, "THE VEHEMENCE OF THE LANGUAGE USED IS
NOT ALONE THE MEASURE OF THE POWER TO PUNISH FOR CONTEMPT.  THE FIRES
WHICH IT KINDLES MUST CONSTITUTE AN IMMINENT, NOT MERELY A LIKELY,
THREAT TO THE ADMINISTRATION OF JUSTICE.  THE DANGER MUST NOT BE REMOTE
OR EVEN PROBABLE; IT MUST IMMEDIATELY IMPERIL . . . . (THE LAW OF
CONTEMPT IS NOT MADE FOR THE PROTECTION OF JUDGES WHO MAY BE SENSITIVE
TO THE WINDS OF PUBLIC OPINION.  JUDGES ARE SUPPOSED TO BE MEN OF
FORTITUDE, ABLE TO THRIVE IN A HARDY CLIMATE."  CRAIG V. HARNEY, 331
U.S. 367, 376 (1947).  "TRIAL COURTS . . . MUST BE ON GUARD AGAINST
CONFUSING OFFENSES TO THEIR SENSIBILITIES WITH OBSTRUCTION TO THE
ADMINISTRATION OF JUSTICE."  BROWN V. UNITED STATES, 356 U.S. 148, 153
(1958). 

THE REVERSAL OF THIS CONVICTION IS NECESSARILY REQUIRED UNDER OUR
HOLDING IN HOLT V. VIRGINIA, 381 U.S. 131 (1965).  THERE ATTORNEYS
FILED MOTIONS THAT THE TRIAL JUDGE RECUSE HIMSELF AND FOR A CHANGE OF
VENUE, ALLEGING THAT THE JUDGE WAS BIASED.  THE MOTION FOR CHANGE OF
VENUE ALLEGED THAT THE JUDGE INTIMIDATED AND HARASSED THE ATTORNEYS'
CLIENT.  THE COURT ADJUDGED THE ATTORNEYS IN CONTEMPT FOR FILING THESE
MOTIONS.  WE REVERSED FOR REASONS ALSO APPLICABLE HERE: 

     "IT IS NOT CHARGED THAT PETITIONERS HERE DISOBEYED ANY VALID

  COURT ORDER, TALKED LOUDLY, ACTED BOISTEROUSLY, OR ATTEMPTED TO

  PREVENT THE JUDGE OR ANY OTHER OFFICER OF THE COURT FROM CARRYING

  ON THIS COURT DUTIES.  THEIR CONVICTIONS REST ON NOTHING WHATEVER

  EXCEPT ALLEGATIONS MADE IN MOTIONS FOR CHANGE OF VENUE AND

  DISQUALIFICATION OF JUDGE HOLLADAY BECAUSE OF ALLEGED BIAS ON HIS

  PART."  ID., AT 136. 

THE PETITION FOR CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED. 

              IT IS SO ORDERED. 

/1/  SECTION 5-1(1) MAKES PUNISHABLE FOR CONTEMPT "(DISORDERLY,
CONTEMPTUOUS, OR INSOLENT BEHAVIOR COMMITTED DURING THE SITTING OF ANY
COURT OF JUSTICE, IN IMMEDIATE VIEW AND PRESENCE OF THE COURT, AND
DIRECTLY TENDING TO INTERRUPT ITS PROCEEDINGS, OR TO IMPAIR THE RESPECT
DUE TO ITS AUTHORITY." 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE REHNQUIST JOINS,
CONCURRING. 

I AGREE WITH THE COURT'S DISPOSITION OF THE CASE BUT SOMETHING MORE
NEEDS TO BE SAID. 

A CONTEMPT HOLDING DEPENDS IN A VERY SPECIAL WAY ON THE SETTING, AND
SUCH ELUSIVE FACTORS ARE THE TONE OF VOICE, THE FACIAL EXPRESSIONS, AND
THE PHYSICAL GESTURES OF THE CONTEMNOR; THESE CANNOT BE DEALT WITH
EXCEPT ON FULL VENTILATION OF THE FACTS.  THOSE PRESENT OFTEN HAVE A
TOTALLY DIFFERENT IMPRESSION OF THE EVENTS FROM WHAT WOULD APPEAR EVEN
IN A FAITHFUL TRANSCRIPT OF THE RECORD.  SOME MEASURE OF THE FLAVOR OF
WHAT REALLY OCCURRED IN THIS EPISODE, AND OF THE PETITIONER'S ATTITUDE
AND DEMEANOR, HOW HIS SPOKEN WORDS IMPRESSED THOSE PRESENT, MAY BE
GLEANED FROM THE EVENTS AND UTTERANCES DESCRIBED IN THE COURT'S PER
CURIAM OPINION. 

THE NORTH CAROLINA COURT IS, OF COURSE, FREE TO PROMPTLY SUMMON THIS
PETITIONER BEFORE IT AND, OBSERVING THE STRICTURES OF MAYBERRY V.
PENNSYLVANIA, 400 U.S. 455 (1971), ISSUE PROCESS REQUIRING HIM TO SHOW
CAUSE WHY HE SHOULD NOT BE HELD IN CONTEMPT FOR THE CONDUCT AND
UTTERANCES FOLLOWING THE CONTEMPT ADJUDICATION. 
..END :






UNITED STATES V. STANDARD OIL CO., 404 U.S. 558 


       UNITED STATES V. STANDARD OIL CO. OF CALIFORNIA

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

        NO. 71-527.  DECIDED JANUARY 24, 1972 


AMERICAN SAMOA.  CF. PUERTO RICO V. SHELL CO., 302 U.S. 253. 

330 F.SUPP.  371, REVERSED. 

PER CURIAM. 

THE UNITED STATES SOUGHT INJUNCTIVE RELIEF AGAINST APPELLEE,
ALLEGING THAT APPELLEE COMBINED AND CONSPIRED TO RESTRAIN AND
MONOPOLIZE THE DISTRIBUTION AND SALE OF PETROLEUM PRODUCTS IN AMERICAN
SAMOA, IN VIOLATION OF SEC. 3 OF THE SHERMAN ACT, 26 STAT. 209, AS
AMENDED, 15 U.S.C. 3.  /1/  THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA DISMISSED THE COMPLAINT FOR LACK OF JURISDICTION
ON THE GROUND THAT AMERICAN SAMOA IS NOT A "TERRITORY OF THE UNITED
STATES" WITHIN THE MEANING OF SEC. 3.  330 F.SUPP.  371 (1971).  THE
UNITED STATES HAS APPEALED PURSUANT TO THE EXPEDITING ACT, 32 STAT.
823, AS AMENDED, 15 U.S.C. 29.  WE NOTE PROBABLE JURISDICTION AND
REVERSE. 

AMERICAN SAMOA IS A GROUP OF SEVEN SMALL ISLANDS IN THE SOUTH
PACIFIC.  TREATIES WITH GREAT BRITAIN AND GERMANY RECOGNIZE THE CLAIMS
OF THE UNITED STATES TO THE ISLANDS.  31 STAT. 1878, T.S. NO. 314.  BY
ACT OF CONGRESS, 45 STAT. 1253, 48 U.S.C. 1661, POWERS TO GOVERN THE
ISLANDS ARE VESTED IN THE PRESIDENT, WHO HAS DELEGATED THE AUTHORITY TO
THE SECRETARY OF THE INTERIOR, EXEC. ORDER NO. 10264, 16 FED.REG. 
6417. 

THE DISTRICT COURT DISTINGUISHED BETWEEN "ORGANIZED" AND OTHER
TERRITORIES, HOLDING THAT ONLY THE FORMER ARE TERRITORIES WITHIN SEC. 3
AND THAT AMERICAN SAMOA IS NOT "ORGANIZED."  /2/ 

CONGRESS, OF COURSE, DID NOT HAVE SAMOA IN MIND WHEN IT ENACTED THE
SHERMAN ACT.  YET, AS THIS COURT POINTED OUT IN HOLDING THAT PUERTO
RICO IS WITHIN THE COVERAGE OF SEC. 3, "THAT IS NOT ENOUGH.  IT IS
NECESSARY TO GO FURTHER AND TO SAY THAT IF THE ACQUISITION OF THAT
INSULAR DEPENDENCY HAD BEEN FORESEEN, CONGRESS WOULD HAVE SO VARIED ITS
COMPREHENSIVE LANGUAGE AS TO EXCLUDE IT FROM THE OPERATION OF THE
ACT."  PUERTO RICO V. SHELL CO., 302 U.S. 253, 257 (1937).  THERE IS NO
MORE REASON TO THINK THAT CONGRESS WOULD HAVE DONE SO FOR SAMOA THAN
FOR PUERTO RICO.  THE COURT STRESSED IN PUERTO RICO THAT CONGRESS
INTENDED BY SEC. 3 "TO EXERT ALL THE POWER IT POSSESSED IN RESPECT OF
THE SUBJECT MATTER-- TRADE AND COMMERCE," AND THE COURT THEREFORE FOUND
IT 

"EQUALLY REASONABLE TO CONCLUDE THAT CONGRESS INTENDED TO INCLUDE
ALL TERRITORIES TO WHICH ITS POWERS MIGHT EXTEND.  THE SAME REASON
WHICH REQUIRES THE UTMOST LIBERALITY OF CONSTRUCTION IN RESPECT OF THE
WORD 'TRADE,' ALSO REQUIRES THE SAME DEGREE OF LIBERALITY OF
CONSTRUCTION IN RESPECT OF THE WORD 'TERRITORY'; AND WE HOLD,
ACCORDINGLY, THAT THE WORD 'TERRITORY' WAS USED IN ITS MOST
COMPREHENSIVE SENSE, AS EMBRACING ALL ORGANIZED TERRITORIES, WHETHER
INCORPORATED INTO THE UNITED STATES OR NOT, INCLUDING PUERTO RICO." 
ID., AT 259. 

THERE IS NO QUESTION THAT CONGRESS HAS POWER TO APPLY THE SHERMAN
ACT TO SAMOA.  BECAUSE "CONGRESS INTENDED TO INCLUDE ALL TERRITORIES TO
WHICH ITS POWERS MIGHT EXTEND," IT FOLLOWS THAT SAMOA IS A "TERRITORY"
WITHIN THE MEANING OF SEC. 3.  WE ARE NOT PERSUADED BY THE DISTRICT
COURT'S DISTINCTION, FOR PURPOSES OF SEC. 3, BETWEEN ORGANIZED AND
UNORGANIZED TERRITORIES.  THE COURT HELD IN PUERTO RICO THAT
"'TERRITORY' WAS USED IN ITS MOST COMPREHENSIVE SENSE'; THE COURT'S
FURTHER REFERENCE TO "ORGANIZED TERRITORIES" WAS SIMPLY AN APPLICATION
OF THAT CONSTRUCTION TO THE FACTS OF THE CASE, FOR PUERTO RICO WAS AN
ORGANIZED TERRITORY, AS WELL AS A RESPONSE TO THE CONTENTION THAT
PUERTO RICO COULD NOT INCLUDED WITHIN SEC. 3 BECAUSE IT WAS NOT AN
"INCORPORATED" TERRITORY.  WE DISCERN NO REASON, AND APPELLEE SUGGESTS
NONE, WHY CONGRESS WOULD HAVE WISHED TO EXCLUDE UNORGANIZED TERRITORIES
FROM THE COVERAGE OF SEC. 3. 

              REVERSED. 

/1/  SECTION 3 PROVIDES IN PERTINENT PART: 

"EVERY CONTRACT, COMBINATION IN FORM OF TRUST OR OTHERWISE, OR
CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE IN ANY TERRITORY OF THE
UNITED STATES OR OF THE DISTRICT OF COLUMBIA, OR IN RESTRAINT OF TRADE
OR COMMERCE BETWEEN ANY SUCH TERRITORY OR TERRITORIES AND ANY STATE OR
STATES OR THE DISTRICT OF COLUMBIA, OR WITH FOREIGN NATIONS, OR BETWEEN
THE DISTRICT OF COLUMBIA AND ANY STATE OR STATES OR FOREIGN NATIONS, IS
DECLARED ILLEGAL." 

/2/  AN "ORGANIZED" TERRITORY IS ONE OF WHICH A CIVIL GOVERNMENT HAS
BEEN ESTABLISHED BY AN ORGANIC ACT OF CONGRESS. 
..END :























UNITED STATES V. CHRISTIAN ECHOES MINISTRY, 404 U.S. 561 


       UNITED STATES V. CHRISTIAN ECHOES NATIONAL MINISTRY, INC.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF OKLAHOMA

   NO. 71-565.  DECIDED JANUARY 24, 1972 


APPELLEE, A NONPROFIT RELIGIOUS CORPORATION, BROUGHT THIS REFUND
SUIT, CLAIMING THAT IT WAS ENTITLED TO TAX-EXEMPT STATUS UNDER SEC.
501(C)(3) OF THE 1954 INTERNAL REVENUE CODE.  THE DISTRICT COURT HELD
THAT UNDER THE FACTS ADDUCED AT TRIAL APPELLEE QUALIFIED FOR
EXEMPTION.  IT WENT ON, HOWEVER, TO CONCLUDE THAT THE INTERNAL REVENUE
SERVICE (IRS) IN REVOKING THAT EXEMPTION VIOLATED (1) FREE EXERCISE
REQUIREMENTS BY ANALYZING EACH ACTIVITY OF APPELLEE AND CLASSIFYING IT
AS "RELIGIOUS" OR "POLITICAL," AND (2) DUE PROCESS REQUIREMENTS BY
SINGLING APPELLEE OUT, AMONG ALL OTHER RELIGIOUS ORGANIZATIONS, FOR
INVESTIGATION AND EXEMPTION REVOCATION WITHOUT SUPPORTING EVIDENCE. 
HELD:  THIS COURT HAS NO JURISDICTION TO ENTERTAIN THE DIRECT APPEAL
THAT THE GOVERNMENT SEEKS TO TAKE UNDER 28 U.S.C. 1252 FROM THE
DISTRICT COURT'S DECISION, WHICH DID NOT HOLD SEC. 501(C)(3)
UNCONSTITUTIONAL AS A WHOLE OR AS APPLIED, BUT WAS MERELY DIRECTED AT
THE METHOD AND MEANS BY WHICH THE IRS ENFORCED SEC. 501(C)(3) IN THIS
CASE. 

VACATED AND REMANDED. 

PER CURIAM. 

THIS CASE BEGAN WHEN THE INTERNAL REVENUE SERVICE REVOKED THE TAX
EXEMPT STATUS OF THE APPELLEE, A NON-PROFIT RELIGIOUS CORPORATION.  THE
APPELLEE HAD PREVIOUSLY ENJOYED A TAX EXEMPTION UNDER SEC. 501(C)(3) OF
THE 1954 INTERNAL REVENUE CODE, 26 U.S.C. 501(C)(3).  THIS SECTION
DEFINES EXEMPT ORGANIZATIONS, IN PERTINENT PART, AS: 

"CORPORATIONS . . . ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS
. . . PURPOSES . . . , NO SUBSTANTIAL PART OF THE ACTIVITIES OF WHICH
IS CARRYING ON PROPAGANDA, OR OTHERWISE ATTEMPTING, TO INFLUENCE
LEGISLATION, AND WHICH DOES NOT PARTICIPATE IN, OR INTERVENE IN
(INCLUDING THE PUBLISHING OR DISTRIBUTING OF STATEMENTS), ANY POLITICAL
CAMPAIGN ON BEHALF OF ANY CANDIDATE FOR PUBLIC OFFICE."  THE APPELLEE'S
EXEMPTION UNDER THIS PROVISION WAS REVOKED ON THREE GROUNDS:  (1) THAT
THE APPELLEE WAS NOT OPERATED EXCLUSIVELY FOR RELIGIOUS PURPOSES, (2)
THAT IT HAD ENGAGED IN SUBSTANTIAL ACTIVITY AIMED AT INFLUENCING
LEGISLATION, AND (3) THAT IT HAD INTERVENED IN POLITICAL CAMPAIGNS ON
BEHALF OF CANDIDATES FOR PUBLIC OFFICE. 

THE APPELLEE PAID THE TAXES ASSERTEDLY OWED AND THEN FILED THE
PRESENT SUIT FOR A REFUND IN FEDERAL DISTRICT COURT, CLAIMING THAT IT
WAS ENTITLED TO AN EXEMPT STATUS UNDER SEC. 501(C)(3) OF THE CODE.  THE
CASE WAS HEARD BY A SINGLE DISTRICT JUDGE SITTING WITHOUT A JURY.  THE
JUDGE ULTIMATELY DECIDED THAT THE APPELLEE WAS ENTITLED TO TAX-EXEMPT
STATUS AND TO A REFUND OF THE TAXES PAID.  /1/ 

THE DISTRICT COURT REJECTED ALL THREE GROUNDS ON WHICH THE INTERNAL
REVENUE SERVICE HAD REVOKED THE APPELLEE'S EXEMPT STATUS.  IF FOUND, AS
FACT, (1) THAT THE APPELLEE'S "ACTIVITIES HAVE BEEN DIRECTED TOWARD
ACHIEVING ITS RELIGIOUS GOALS," (2) THAT "(WWITH THE EXCEPTION OF
SUPPORT OF THE PROPOSED BECKER AMENDMENT TO THE UNITED STATES
CONSTITUTION RELATING TO VOLUNTARY PRAYER AND BIBLE READING IN PUBLIC
SCHOOLS, (THE APPELLEE) HAS NOT ENGAGED IN ATTEMPTS TO INFLUENCE
LEGISLATION," AND (3) THAT THE APPELLEE "HAS NOT ENDORSED A POLITICAL
CANDIDATE, AND HAS NOT INSTRUCTED ITS FOLLOWERS AS TO HOW TO VOTE BUT
ONLY TO VOTE."  ON THE BASIS OF ITS FINDINGS OF FACT, THE COURT
CONCLUDED AS LAW THAT THE APPELLEE FELL WITHIN THE TERMS OF SEC.
501(C)(3).  THAT ENDED THE CASE.  BUT THE DISTRICT COURT NONETHELESS
WENT ON TO DISCUSS CERTAIN CONSTITUTIONAL ISSUES. 

IN ITS CONCLUSIONS OF LAW, THE COURT STATED THAT THE FIRST AMENDMENT
PROHIBITS BOTH THE GOVERNMENT AND THE COURTS FROM DETERMINING WHETHER A
RELIGIOUS ORGANIZATION IS OPERATED FOR EXCLUSIVELY RELIGIOUS PURPOSES,
AND IT THUS ELIGIBLE FOR TAX-EXEMPT STATUS, BY ANALYZING EACH AND EVERY
ACTIVITY OF THE ORGANIZATION AND CLASSIFYING IT AS "RELIGIOUS" OR
"POLITICAL."  IN THIS CASE, THE COURT SAID, THE INTERNAL REVENUE
SERVICE CONDUCTED AND RELIED UPON SUCH AN ANALYSIS IN REVOKING THE
APPELLEE'S EXEMPTION AND, FOR THAT REASON, THE SERVICE DENIED THE FREE
EXERCISE OF RELIGION TO THE APPELLEE.  THE DISTRICT COURT ALSO STATED
THAT THE INTERNAL REVENUE SERVICE VIOLATED THE APPELLEE'S RIGHT TO DUE
PROCESS OF LAW BY SINGLING IT OUT, AMONG ALL OTHER RELIGIOUS
ORGANIZATIONS, FOR INVESTIGATION AND EXEMPTION REVOCATION "WITHOUT
EVIDENCE TO SUPPORT ITS ACTION." 

THE UNITED STATES SEEKS TO APPEAL THE DECISION OF THE SINGLE
DISTRICT JUDGE DIRECTLY TO THIS COURT.  IT ARGUES THAT WE HAVE
JURISDICTION UNDER 28 U.S.C. 1252.  THAT JURISDICTIONAL PROVISION
ALLOWS A DIRECT APPEAL TO THE SUPREME COURT FROM THE DECISION OF "ANY
COURT OF THE UNITED STATES . . . HOLDING AN ACT OF CONGRESS
UNCONSTITUTIONAL IN ANY CIVIL ACTION, SUIT, OR PROCEEDING TO WHICH THE
UNITED STATES . . . IS A PARTY."  SUCH A DIRECT APPEAL IS ALLOWED
WHETHER THE ACT OF CONGRESS WAS DECLARED UNCONSTITUTIONAL "AS A WHOLE"
OR SIMPLY "AS APPLIED."  FLEMING V. RHODES, 331 U.S. 100, 102-103.  THE
FINDINGS AND CONCLUSIONS OF THE DISTRICT COURT IN THE PRESENT CASE,
HOWEVER, REVEAL THAT IT DID NOT HOLD SEC. 501(C)(3) UNCONSTITUTIONAL IN
EITHER OF THESE WAYS.  HENCE, WE MUST DISMISS THIS APPEAL FOR WANT OF
JURISDICTION. 

THE "BASIS" OF THE DISTRICT COURT'S DECISION, UNITED STATES V.
RAINES, 362 U.S. 17, 20, WAS THAT, UNDER THE FACTS ADDUCED AT TRIAL,
THE APPELLEE QUALIFIED FOR EXEMPT STATUS UNDER SEC. 501(C)(3).  THE
COURT DID NOT QUESTION OR EVEN CONSIDER THE CONSTITUTIONALITY OF SEC.
501(C)(3) "AS A WHOLE."  NOR DOES ANY PART OF ITS OPINION HOLD THAT THE
CASE WOLD HARDLY HAVE FOUND THE APPELLEE TO BE QUALIFIED FOR AN
EXEMPTION UNDER SEC. 501(C)(3), ONLY TO HOLD THAT THE SECTION COULD NOT
BE VALIDLY APPLIED IN THE FIRST PLACE. 

THE DISTRICT COURT'S COMMENTARY ON THE DENIAL OF DUE PROCESS TO THE
APPELLEE WAS DIRECTED SIMPLY TO THE METHOD BY WHICH SEC. 501(C)(3) WAS
ENFORCED /2/-- NOT TO ITS BASIC APPLICABILITY.  THE COURT HELD THAT THE
INTERNAL REVENUE SERVICE MAY NOT DISCRIMINATE IN APPLYING THE SECTION. 
THIS HOLDING RESTRICTS FREEWHEELING ENFORCEMENT AND MAY MAKE IT MORE
DIFFICULT TO REVOKE CERTAIN TAX EXEMPTIONS.  BUT IT DOES NOT CALL INTO
QUESTION THE VALIDITY OF THE UNDERLYING STATUTE.  UNDER SEC. 1252,
DIRECT APPEAL TO THE SUPREME COURT IS AUTHORIZED ONLY IN THE LATTER
SITUATION. 

SIMILARLY, THE DISTRICT COURT'S COMMENTARY ON THE DENIAL OF THE
APPELLEE'S FIRST AMENDMENT RIGHTS WAS DIRECTED TO THE PARTICULAR
INTERPRETATION GIVEN TO SEC. 501(C)(3) BY THE INTERNAL REVENUE SERVICE
IN THIS CASE AND TO ITS MEANS OF ENFORCING THAT INTERPRETATION.  AT
MOST, THE COURT'S REASONING ON THIS POINT CAN BE READ TO CONSTRUE SEC.
501(C)(3) NARROWLY SO AS TO AVOID A FIRST AMENDMENT PROBLEM.  /3/  THE
COURT REFUSED TO INTERPRET AND APPLY THE SECTION TO REQUIRE AN ANALYSIS
OF THE "RELIGIOUS" OR "NON-RELIGIOUS" CHARACTER OF EVERY ACTIVITY BY A
CONCEDEDLY RELIGIOUS ORGANIZATION, BECAUSE SUCH AN INTERPRETATION AND
APPLICATION WOULD INFRINGE THE RIGHT TO FREE EXERCISE OF RELIGION.  IT
STATED THAT THE INTERNAL REVENUE SERVICE HAD ALREADY GONE TOO FAR IN
ITS ENFORCEMENT OF THIS INTERPRETATION.  BUT THE STATEMENT THAT THE
SERVICE VIOLATED THE APPELLEE'S FIRST AMENDMENT RIGHTS IS NOT THE SAME
AS A HOLDING THAT CONGRESS DID SO IN ENACTING SEC. 501(C)(3).  THE
COURT AVOIDED HOLDING THAT THE SECTION ITSELF WAS UNCONSTITUTIONAL "AS
APPLIED"-- I.E., THAT THE SECTION, BY ITS OWN TERMS, INFRINGED
CONSTITUTIONAL FREEDOMS IN THE CIRCUMSTANCES OF THE PARTICULAR CASE. 
RATHER, IT HELD THAT THE SERVICE HAD MISINTERPRETED SEC. 501(C)(3) AND
THAT THE SECTION MUST BE NARROWLY CONSTRUED.  /4/  ALTHOUGH THE
CONSTRUCTION WAS BASED ON A CONSTITUTIONAL PREMISE, IT DID NOT AMOUNT
TO A HOLDING THAT AN ACT OF CONGRESS IS UNCONSTITUTIONAL, AS
CONTEMPLATED BY SEC. 1252.  TO THE CONTRARY, THE DISTRICT COURT
CONSTRUED THE SECTION SO AS TO SAVE ITS CONSTITUTIONALITY. 

OUR INTERPRETATION OF THE DISTRICT COURT'S CONCLUSIONS OF LAW DOES
NOT, OF COURSE, INDICATE APPROVAL OF THOSE CONCLUSIONS.  THE ISSUE IS
NOT BEFORE US.  WE HOLD ONLY THAT THERE IS AN ABSENCE OF APPELLATE
JURISDICTION UNDER SEC. 1252. 

THE JUDGMENT IS VACATED AND THE CASE REMANDED TO THE DISTRICT COURT
FOR THE ENTRY OF A FRESH DECREE, SO THAT THE APPELLANT MAY APPEAL TO
THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

/1/  THE FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE DISTRICT
COURT IN THIS CASE, ENTERED ON JUNE 24, 1971, ARE NOT OFFICIALLY
REPORTED. 

/2/  BY FAR THE GREATEST PORTION OF THE DISTRICT COURT'S FINDINGS OF
FACT ARE DIRECTED TO THE DETAILED HISTORY OF THE GOVERNMENT'S
INVESTIGATION OF THE APPELLEE'S EXEMPT STATUS. 

/3/  FOR EXAMPLE, THE DISTRICT COURT STATED: 

"43.  (THE APPELLANT) HAS CHARACTERIZED CERTAIN OF (THE APPELLEE'S)
ACTIVITIES DURING THE YEARS INVOLVED IN THIS SUIT AS URGING THE PUBLIC
TO CONTACT MEMBERS OF LEGISLATIVE BODIES FOR THE PURPOSE OF PROPOSING,
SUPPORTING OR OPPOSING LEGISLATION.  (THE APPELLEE) HAS CHARACTERIZED
THE SAME ACTIVITIES AS TAKING STANDS ON ISSUES OF THE DAY CONCERNING
MATTERS WHICH IT CONSTRUES TO THREATEN ITS RELIGIOUS BELIEFS.  THE
COURT FINDS THAT THESE ACTIVITIES HAVE RESULTED FROM (THE APPELLEE'S)
RELIGIOUS BELIEFS AND WERE MERELY INCIDENTAL TO THE EXERCISE OF ITS
RELIGION AND THE EXPRESSION AND DISSEMINATION OF ITS UNDERSTANDING OF
BIBLICAL CONCEPTS.  THE COURT FURTHER FINDS THAT ANY SUCH ACTIVITIES BY
(THE APPELLEE) WERE INSUBSTANTIAL IN RELATIONSHIP TO THE TOTALITY OF
(THE APPELLEE'S) ACTIVITIES. 

"44.  (THE APPELLANT), IN DESCRIBING AND CHARACTERIZING (THE
APPELLEE'S) ACTIVITIES AS POLITICAL AND NON-RELIGIOUS, HAS IN FACT
INDICATED A DISAGREEMENT WITH THE CONTENT AND NATURE OF WHAT (THE
APPELLEE) HAS SAID AND WRITTEN.  (THE APPELLANT) HAS THEREBY SPONSORED
ITS OWN DEFINITIONS OF 'RELIGION' AND 'RELIGIOUS.'  SUCH DEFINITIONS BY
(THE APPELLANT) ARE IMPERMISSABLE ( ) . . . . 

"45.  (THE APPELLEE'S) EXPRESSION OF OPINION ON 'CURRENT ISSUES OR
ISSUES OF THE DAY' IS NOT AN ACT CONTEMPLATED BY PROHIBITION AGAINST
INTERVENTION IN POLITICAL CAMPAIGNS OR LEGISLATION AND IS NOT A
VIOLATION OF THE PROVISIONS OF INTERNAL REVENUE CODE." 

/4/  A SIMILAR DISTINCTION HAS BEEN DRAWN IN THE CONTEXT OF THE
THREE-JUDGE DISTRICT COURT STATUTE, 28 U.S.C. 2281.  "IT IS NECESSARY
TO DISTINGUISH BETWEEN A PETITION FOR INJUNCTION ON THE GROUND OF THE
UNCONSTITUTIONALITY OF A STATUTE AS APPLIED, WHICH REQUIRES A THREE
JUDGE COURT, AND A PETITION WHICH SEEKS AN INJUNCTION ON THE GROUND OF
THE UNCONSTITUTIONALITY OF THE RESULT OBTAINED BY THE USE OF A STATUTE
WHICH IS NOT ATTACKED AS UNCONSTITUTIONAL.  THE LATTER PETITION DOES
NOT REQUIRE A THREE-JUDGE COURT.  IN SUCH A CASE THE ATTACK IS AIMED AS
AN ALLEGEDLY ERRONEOUS ADMINISTRATIVE ACTION."  EX PARTE BRANSFORD, 310
U.S. 354, 361. 
..END :






BRADLEY V. UNITED STATES, 404 U.S. 567 


       BRADLEY V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE EIGHTH CIRCUIT

        NO. 71-5431.  DECIDED JANUARY 24, 1972 


CERTIORARI GRANTED; 447 F.2D 264, VACATED AND REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO DISMISS THE INDICTMENT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA WITH DIRECTIONS
TO DISMISS THE INDICTMENT.  DURHAM V. UNITED STATES, 401 U.S. 481
(1971). 

THE CHIEF JUSTICE AND MR. JUSTICE BLACKMUN DISSENT FOR THE REASONS
STATED IN MR. JUSTICE BLACKMUN'S DISSENTING OPINION IN DURHAM V. UNITED
STATES, 401 U.S. 481, 483-485 (1971). 
..END :



LOVE V. PULLMAN CO., 404 U.S. 522 


       LOVE V. PULLMAN CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 70-5033.  ARGUED NOVEMBER 16, 1971-- DECIDED JANUARY
17,

           1972  /0/ 


PROCEDURE WHEREBY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC),
AFTER HAVING RECEIVED A WRITTEN CHARGE FROM A COMPLAINANT OF
DISCRIMINATION IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, ORALLY REFERRED IT TO THE APPROPRIATE STATE AGENCY, WAITED UNTIL
THAT AGENCY HAD TERMINATED ITS JURISDICTION, AND THEN FORMALLY FILED
THE CHARGE ON BEHALF OF THE COMPLAINANT WITHOUT HAVING OBTAINED AN
ADDITIONAL WRITTEN CHARGE WITHIN 30 DAYS OF THE TERMINATION OF THE
STATE PROCEEDINGS HELD TO SATISFY THE REQUIREMENTS OF SECS. 706(B) AND
(D) OF THE ACT, WHICH HAVE THE PURPOSE OF AFFORDING STATE AGENCIES
PRIOR OPPORTUNITY TO CONSIDER DISCRIMINATION COMPLAINTS AND ENSURING
THEIR PROMPT FILING AND DISPOSITION BY THE EEOC ON EXHAUSTION OF THE
STATE REMEDY.  PP. 523-527. 

430 F.2D 49, REVERSED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASES. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

A PERSON CLAIMING TO BE AGGRIEVED BY A VIOLATION OF TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, 78 STAT. 253, /1/  MAY NOT MAINTAIN A SUIT
FOR REDRESS IN FEDERAL DISTRICT COURT UNTIL HE HAS FIRST UNSUCCESSFULLY
PURSUED CERTAIN AVENUES OF POTENTIAL ADMINISTRATIVE RELIEF.  IN THIS
LITIGATION THE PETITIONER EMPLOYEE FILED A COMPLAINT IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO, ALLEGING THAT HIS
EMPLOYER, THE RESPONDENT PULLMAN COMPANY, HAD ENGAGED IN EMPLOYMENT
PRACTICES VIOLATIVE OF TITLE VII.  THE COURT DISMISSED THE COMPLAINT,
HOLDING THAT THE STATUTORY PREREQUISITES TO THE MAINTENANCE OF THE SUIT
HAD NOT BEEN MET.  THE COURT OF APPEALS AFFIRMED, 430 F.2D 49, AND WE
GRANTED CERTIORARI TO CONSIDER THE QUESTION OF FEDERAL LAW PRESENTED. 
401 U.S. 907. 

THE PETITIONER WAS EMPLOYED BY THE PULLMAN COMPANY AS A "PORTER-IN
CHARGE."  IN 1963 AND AGAIN IN 1965, HE COMPLAINED TO THE COLORADO
CIVIL RIGHTS COMMISSION, ALLEGING THAT THE PORTERS-IN-CHARGE, MOST OF
WHOM, LIKE THE PETITIONER, WERE NEGROES, PERFORMED THE SAME FUNCTIONS
AS CONDUCTORS, MOST OF WHOM WERE WHITE, YET AT LOWER PAY.  THE
PROCEEDINGS OF THE COLORADO COMMISSION TERMINATED IN 1965 WITHOUT
REACHING A RESOLUTION OF THE CONTROVERSY SATISFACTORY TO THE
PETITIONER.  ON MAY 23, 1966, THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION RECEIVED FROM THE PETITIONER A "LETTER OF INQUIRY" WHICH
COMPLAINED OF THIS SAME ALLEGED DISCRIMINATION.  IN ACCORD WITH ITS
USUAL PRACTICE, /2/  THE COMMISSION TREATED THIS LETTER AS A COMPLAINT
BUT DID NOT FORMALLY FILE IT.  INSTEAD, TO INSURE COMPLIANCE WITH TITLE
VII'S PROCEDURAL REQUIREMENTS, EEOC ORALLY ADVISED THE COLORADO
COMMISSION THAT IT HAD RECEIVED A COMPLAINT FROM THE PETITIONER.  BY
LETTER OF JUNE 1, 1966, THE COLORADO COMMISSION INFORMED EEOC THAT IT
WAIVED THE OPPORTUNITY TO TAKE FURTHER ACTION ON THE PETITIONER'S
GRIEVANCE, AND THE EEOC THEN PROCEEDED WITH ITS OWN INVESTIGATION.  THE
INVESTIGATION RESULTED IN A FINDING OF PROBABLE CAUSE TO BELIEVE THAT
THE CHARGE OF DISCRIMINATION WAS TRUE, BUT THE EEOC WAS UNSUCCESSFUL IN
ITS ATTEMPTS TO OBTAIN PULLMAN'S VOLUNTARY COMPLIANCE.  THIS LAWSUIT
FOLLOWED. 

THE BASIS FOR THE HOLDING OF THE COURT OF APPEALS WAS ITS FINDING
THAT THE CHARGE OF DISCRIMINATION HAD NOT BEEN "FILED" WITH EEOC BY THE
PETITIONER IN CONFORMITY WITH THE REQUIREMENTS OF THE ACT.  /3/  TWO
SUCH REQUIREMENTS ARE CRITICAL HERE.  SECTION 706(B) OF THE ACT, 42
U.S.C. 2000E-5(B), PROVIDES THAT WHERE THERE EXISTS A STATE OR LOCAL
AGENCY AUTHORIZED TO GRANT OR SEEK RELIEF AGAINST EMPLOYMENT
DISCRIMINATION, "NO CHARGE MAY BE FILED (WITH THE EEOC) BY THE PERSON
AGGRIEVED BEFORE THE EXPIRATION OF SIXTY DAYS AFTER PROCEEDINGS HAVE
BEEN COMMENCED UNDER THE STATE OR LOCAL LAW, UNLESS SUCH PROCEEDINGS
HAVE BEEN EARLIER TERMINATED . . . ."  SECTION 706(D), 42 U.S.C. 2000E
5(D), REQUIRES THAT THE COMPLAINT TO THE EEOC "SHALL BE FILED BY THE
PERSON AGGRIEVED WITHIN TWO HUNDRED AND TEN DAYS AFTER THE ALLEGED
UNLAWFUL EMPLOYMENT PRACTICE OCCURRED, OR WITHIN THIRTY DAYS AFTER
RECEIVING NOTICE THAT THE STATE OR LOCAL AGENCY HAS TERMINATED THE
PROCEEDINGS UNDER THE STATE OR LOCAL LAW, WHICHEVER IS EARLIER . . .
." 

THE EEOC TAKES THE POSITION THAT THESE REQUIREMENTS WERE FULFILLED
BY THE PROCEDURE FOLLOWED HERE, WHEREBY A CHARGE FILED WITH THE EEOC
PRIOR TO EXHAUSTION, OF THE STATE REMEDY WAS REFERRED BY IT TO THE
STATE AGENCY, AND THEN FORMALLY FILED ONCE THE STATE AGENCY INDICATED
THAT IT WOULD DECLINE TO TAKE ACTION.  THE COURT OF APPEALS, ON THE
OTHER HAND, REGARDED THIS PROCEDURE AS A "MANIPULATION OF THE FILING
DATE," NOT CONTEMPLATED OR PERMITTED BY THE STATUTE OR BY THE EEOC
REGULATIONS THEN IN FORCE. 

WE HOLD THAT THE FILING PROCEDURE FOLLOWED HERE FULLY COMPLIED WITH
THE INTENT OF THE ACT, AND WE THUS REVERSE THE JUDGMENT OF THE COURT OF
APPEALS.  NOTHING IN THE ACT SUGGESTS THAT THE STATE PROCEEDINGS MAY
NOT BE INITIATED BY THE EEOC ACTING ON BEHALF OF THE COMPLAINANT RATHER
THAN BY THE COMPLAINANT HIMSELF, NOR IS THERE ANY REQUIREMENT THAT THE
COMPLAINT TO THE STATE AGENCY BE MADE IN WRITING RATHER THAN BY ORAL
REFERRAL.  /4/  FURTHER, WE CANNOT AGREE WITH THE RESPONDENT'S CLAIM
THAT THE EEOC MAY NOT PROPERLY HOLD A COMPLAINT IN "SUSPENDED
ANIMATION," AUTOMATICALLY FILING IT UPON TERMINATION OF THE STATE
PROCEEDINGS.  /5/ 

WE SEE NO REASON WHY FURTHER ACTION BY THE AGGRIEVED PARTY SHOULD BE
REQUIRED.  THE PROCEDURE COMPLIES WITH THE PURPOSE BOTH OF SEC. 706(B),
TO GIVE STATE AGENCIES A PRIOR OPPORTUNITY TO CONSIDER DISCRIMINATION
COMPLAINTS, AND OF SEC. 706(D), TO ENSURE EXPEDITION IN THE FILING AND
HANDLING OF THOSE COMPLAINTS.  THE RESPONDENT MAKES NO SHOWING OF
PREJUDICE TO ITS INTERESTS.  TO REQUIRE A SECOND "FILING" BY THE
AGGRIEVED PARTY AFTER TERMINATION OF STATE PROCEEDINGS WOULD SERVE NO
PURPOSE OTHER THAN THE CREATION OF AN ADDITIONAL PROCEDURAL
TECHNICALITY.  /6/  SUCH TECHNICALITIES ARE PARTICULARLY INAPPROPRIATE
IN A STATUTORY SCHEME IN WHICH LAYMEN, UNASSISTED BY TRAINED LAWYERS,
INITIATE THE PROCESS. 

THE JUDGMENT IS

              REVERSED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

/0/  TOGETHER WITH NO. 70-37, UNITED STATES ET AL. V. PULLMAN CO.,
ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  SECS. 701-716(C), 42 U.S.C. 2000E TO 2000E-15. 

/2/  TITLE 29 CFR 1601.11(B) (1971) PROVIDES: 

"(A) CHARGE IS DEEMED FILED WHEN THE COMMISSION RECEIVES FROM THE
PERSON AGGRIEVED A WRITTEN STATEMENT SUFFICIENTLY PRECISE TO IDENTIFY
THE PARTIES AND TO DESCRIBE GENERALLY THE ACTION OR PRACTICES
COMPLAINED OF. . . . " 

/3/  THE COURT OF APPEALS FIRST ADOPTED THE REASONING OF THE
DISTRICT COURT:  THE STATE COMMISSION HAD TERMINATED THE PROCEEDINGS
INITIATED BY PETITIONER IN JULY 1965, AND PETITIONER FAILED TO COMPLAIN
TO THE EEOC WITHIN THE 30-DAY TIME PERIOD PRESCRIBED IN SEC. 706(D), 42
U.S.C. 2000E-5(D).  REGARDING THIS STATUTORY TIME REQUIREMENT AS
JURISDICTIONAL, THE DISTRICT COURT DISMISSED THE COMPLAINT.  WHEN THE
GOVERNMENT ENTERED THE CASE ON A PETITION FOR REHEARING TO THE COURT OF
APPEALS, IT POINTED OUT THAT TITLE VII HAD NOT GONE INTO EFFECT AT THE
TIME OF THE EVENTS UNDERLYING PETITIONER'S APPLICATIONS TO THE STATE
COMMISSION.  THUS, THE STATE COMMISSION'S TERMINATION OF PROCEEDINGS IN
1965 DID NOT TOLL THE 30-DAY PERIOD FOR APPEAL TO THE EEOC. 

/4/  RESPONDENT CITES THE FOLLOWING LANGUAGE OF SEC. 706(B), 42
U.S.C. 2000E-5(B): 

"IF ANY REQUIREMENT FOR THE COMMENCEMENT OF SUCH PROCEEDINGS IS
IMPOSED BY A STATE OR LOCAL AUTHORITY OTHER THAN A REQUIREMENT OF THE
FILING OF A WRITTEN AND SIGNED STATEMENT OF THE FACTS UPON WHICH THE
PROCEEDING IS BASED, THE PROCEEDING SHALL BE DEEMED TO HAVE BEEN
COMMENCED FOR THE PURPOSES OF THIS SUBSECTION AT THE TIME SUCH
STATEMENT IS SENT BY REGISTERED MAIL TO THE APPROPRIATE STATE OR LOCAL
AUTHORITY." 

NOTHING IN THIS LANGUAGE IMPLIES THAT A STATE PROCEEDING MAY NOT BE
COMMENCED BY AN ORAL COMPLAINT; THE STATUTE GUARDS AGAINST STATE
PROCEEDINGS THAT ARE DIFFICULT TO COMMENCE, NOT AGAINST ONES THAT ARE
EASILY BEGUN. 

/5/  THE COURT OF APPEALS EXPRESSED CONCERN THAT IF EEOC COULD
IGNORE THE REQUIREMENT OF 29 CFR 1601.11(B) (1971) THAT A CHARGE IS
DEEMED FILED WHEN RECEIVED, IT COULD FILE ANY COMPLAINT WHENEVER IT
CHOSE, THEREBY NULLIFYING THE VARIOUS STATUTORY TIME REQUIREMENTS.  BUT
THE STATUTORY PROHIBITION OF SEC. 706(B) AGAINST FILING CHARGES THAT
HAVE NOT BEEN REFERRED TO A STATE OR LOCAL AUTHORITY NECESSARILY
CREATES AN EXCEPTION TO THE REGULATION REQUIRING FILING ON RECEIPT. 

/6/  SEE COMMENT, A LOOK AT LOVE V. PULLMAN, 37 U.CHI.L.REV.  181, 188
(1969).  WHEN A MEMBER OF EEOC, RATHER THAN AN AGGRIEVED PARTY, FILES A
COMPLAINT WITH EEOC, "THE COMMISSION SHALL, BEFORE TAKING ANY ACTION
WITH RESPECT TO SUCH CHARGE, NOTIFY THE APPROPRIATE STATE OR LOCAL
OFFICIALS AND, UPON REQUEST, AFFORD THEM A REASONABLE TIME, BUT NOT
LESS THAN SIXTY DAYS . . . TO REMEDY THE PRACTICE ALLEGED."  TITLE VII,
SEC. 706(C), 42 U.S.C. 2000E-5(C).  IT IS CLEAR THAT CONGRESS FOUND
NOTHING WRONG, IN THIS CIRCUMSTANCE, WITH EEOC'S HOLDING THE CHARGE IN
ABEYANCE UNTIL A STATE AGENCY IS GIVEN THE CHANCE TO ACT.  THERE IS NO
REASON TO THINK THAT CONGRESS WOULD DISAPPROVE THIS PROCEDURE WHEN
COMPLAINTS ARE INITIATED BY AGGRIEVED PARTIES; THE DIFFERENCE IN
WORDING BETWEEN SEC. 706(B) AND SEC. 706(C) SEEMS TO BE ONLY A
REFLECTION OF THE DIFFERENT PERSONS WHO INITIATE THE CHARGE. 
DEVELOPMENTS IN THE LAW, EMPLOYMENT DISCRIMINATION AND TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, 84 HARV.L.REV.  1109, 1214 N. 117 (1971). 

HUGH J. MCCLEARN ARGUED THE CAUSE FOR PETITIONER IN NO. 70-5033. 
WITH HIM ON THE BRIEF WAS GAIL L. IRELAND.  DEPUTY SOLICITOR GENERAL
WALLACE ARGUED THE CAUSE FOR THE UNITED STATES ET AL. WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY
GENERAL NORMAN, DAVID L. ROSE, STANLEY HEBERT, AND JULIA P. COOPER. 

EDWARD C. EPPICH ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT
IN BOTH CASES. 

NATHANIEL R. JONES FILED A BRIEF FOR THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE AS AMICUS CURIAE URGING REVERSAL IN
NO. 70-5033. 
..END :




TRBOVICH V. MINE WORKERS, 404 U.S. 528 


       TRBOVICH V. UNITED MINE WORKERS OF AMERICA ET AL.

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 71-119.  ARGUED NOVEMBER 18, 1971-- DECIDED JANUARY 17,

          1972 


PETITIONER UNION MEMBER SOUGHT UNSUCCESSFULLY TO INTERVENE PURSUANT
TO FED. RULE CIV. PROC. 24(A) IN LITIGATION BROUGHT BY THE SECRETARY OF
LABOR UNDER TITLE IV OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE
ACT TO SET ASIDE AN ELECTION OF UNION OFFICERS FOR VIOLATIONS OF THE
ACT.  PETITIONER, WHO INITIATED THE ENTIRE ENFORCEMENT PROCEEDING WITH
HIS COMPLAINT TO THE SECRETARY, SOUGHT TO PRESENT EVIDENCE AND ARGUMENT
IN SUPPORT OF THE SECRETARY'S ELECTION CHALLENGE, AND TO URGE
ADDITIONAL GROUNDS FOR SETTING THE ELECTION ASIDE.  HELD: 

1.  THERE IS NOTHING IN THE LANGUAGE OF TITLE IV OF THE ACT OR ITS
LEGISLATIVE HISTORY TO BAR INTERVENTION BY A UNION MEMBER IN A POST
ELECTION ENFORCEMENT SUIT, SO LONG AS THE INTERVENTION IS LIMITED TO
CLAIMS OF ILLEGALITY PRESENTED BY THE SECRETARY'S COMPLAINT.  PP. 530
537. 

2.  INTERVENTION UNDER RULE 24(A) IS WARRANTED FOR THIS PETITIONER,
AS HE MAY HAVE A VALID COMPLAINT ABOUT THE PERFORMANCE OF THE
SECRETARY, WHO PROTECTS NOT ONLY THE RIGHTS OF INDIVIDUAL UNION MEMBERS
BUT ALSO THE PUBLIC INTEREST IN FREE AND DEMOCRATIC UNION ELECTIONS,
TWO FUNCTIONS THAT MAY NTO ALWAYS DICTATE THE SAME APPROACH TO THE
CONDUCT OF THE LITIGATION.  PP. 537-539. 

REVERSED AND CASE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO
ALLOW LIMITED INTERVENTION. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  DOUGLAS,
J., FILED AN OPINION DISSENTING IN PART, POST, P. 539.  POWELL AND
REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE SECRETARY OF LABOR INSTITUTED THIS ACTION UNDER SEC. 402(B) OF
THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (LMRDA), 73
STAT. 534, 29 U.S.C. 482(B), TO SET ASIDE AN ELECTION OF OFFICERS OF
THE UNITED MINE WORKERS OF AMERICA (UMWA), HELD ON DECEMBER 9, 1969. 
HE ALLEGED THAT THE ELECTION WAS HELD IN A MANNER THAT VIOLATED THE
LMRDA IN NUMEROUS RESPECTS, /1/  AND HE SOUGHT AN ORDER REQUIRING A NEW
ELECTION TO BE HELD UNDER HIS SUPERVISION. 

PETITIONER, A MEMBER OF THE UMWA, FILED THE INITIAL COMPLAINT WITH
THE SECRETARY THAT EVENTUALLY LED HIM TO FILE THIS SUIT.  PETITIONER
NOW SEEKS TO INTERVENE IN THE LITIGATION, PURSUANT TO FED. RULE CIV.
PROC. 24(A), IN ORDER (1) TO URGE TWO ADDITIONAL GROUNDS FOR SETTING
ASIDE THE ELECTION, /2/  (2) TO SEEK CERTAIN SPECIFIC SAFEGUARDS WITH
RESPECT TO ANY NEW ELECTION THAT MAY BE ORDERED, /3/  AND (3) TO
PRESENT EVIDENCE AND ARGUMENT IN SUPPORT OF THE SECRETARY'S CHALLENGE
TO THE ELECTION.  THE DISTRICT COURT DENIED HIS MOTION FOR LEAVE TO
INTERVENE, ON THE GROUND THAT THE LMRDA EXPRESSLY STRIPPED UNION
MEMBERS OF ANY RIGHT TO CHALLENGE A UNION ELECTION IN THE COURTS, AND
GAVE THAT RIGHT EXCLUSIVELY TO THE SECRETARY.  HODGSON V. UNITED MINE
WORKERS, 51 F.R.D. 270 (1970).  THE COURT OF APPEALS AFFIRMED ON THE
BASIS OF THE DISTRICT COURT OPINION, 77 L.R.R.M. 2496 (CADC 1971).  WE
GRANTED CERTIORARI TO DETERMINE WHETHER THE LMRDA IMPOSES A BAR TO
INTERVENTION BY UNION MEMBERS UNDER RULE 24, IN A SUIT INITIATED BY THE
SECRETARY.  POST, P. 880.  /4/  WE CONCLUDE THAT IT DOES NOT, AND WE
REMAND THE CASE TO THE DISTRICT COURT WITH DIRECTIONS TO PERMIT
INTERVENTION. 

        I 

THE LMRDA WAS THE FIRST MAJOR ATTEMPT OF CONGRESS TO REGULATE THE
INTERNAL AFFAIRS OF LABOR UNIONS.  /5/  HAVING CONFERRED SUBSTANTIAL
POWER ON LABOR ORGANIZATIONS, CONGRESS BEGAN TO BE CONCERNED ABOUT THE
DANGER THAT UNION LEADERS WOULD ABUSE THAT POWER, TO THE DETRIMENT OF
THE RANK-AND-FILE MEMBERS.  CONGRESS SAW THE PRINCIPLE OF UNION
DEMOCRACY AS ONE OF THE MOST IMPORTANT SAFEGUARDS AGAINST SUCH ABUSE,
AND ACCORDINGLY INCLUDED IN THE LMRDA A COMPREHENSIVE SCHEME FOR THE
REGULATION OF UNION ELECTIONS. 

TITLE IV OF THE STATUTE ESTABLISHES A SET OF SUBSTANTIVE RULES
GOVERNING UNION ELECTIONS, LMRDA SEC. 401, 29 U.S.C. 481, AND IT
PROVIDES A COMPREHENSIVE PROCEDURE FOR ENFORCING THOSE RULES, LMRDA
SEC. 402, 29 U.S.C. 482.  ANY UNION MEMBER WHO ALLEGES A VIOLATION MAY
INITIATE THE ENFORCEMENT PROCEDURE.  HE MUST FIRST EXHAUST ANY INTERNAL
REMEDIES AVAILABLE UNDER THE CONSTITUTION AND BYLAWS OF HIS UNION. 
THEN HE MAY FILE A COMPLAINT WITH THE SECRETARY OF LABOR, WHO "SHALL
INVESTIGATE" THE COMPLAINT.  FINALLY, IF THE SECRETARY FINDS PROBABLE
CAUSE TO BELIEVE A VIOLATION HAS OCCURRED, HE "SHALL . . . BRING A
CIVIL ACTION AGAINST THE LABOR ORGANIZATION" IN FEDERAL DISTRICT COURT,
TO SET ASIDE THE ELECTION IF IT HAS ALREADY BEEN HELD, AND TO DIRECT
AND SUPERVISE A NEW ELECTION.  WITH RESPECT TO ELECTIONS NOT YET
CONDUCTED, THE STATUTE PROVIDES THAT EXISTING RIGHTS AND REMEDIES APART
FROM THE STATUTE ARE NOT AFFECTED.  BUT WITH RESPECT TO AN ELECTION
ALREADY CONDUCTED, "(THE REMEDY PROVIDED BY THIS SUBCHAPTER . . . SHALL
BE EXCLUSIVE."  LMRDA SEC. 403, 29 U.S.C. 483. 

THE CRITICAL STATUTORY PROVISION FOR PRESENT PURPOSES IS SEC. 403,
29 U.S.C. 483, MAKING SUIT BY THE SECRETARY THE "EXCLUSIVE"  POST
ELECTION REMEDY FOR A VIOLATION OF TITLE IV.  THIS COURT HAS HELD THAT
SEC. 403 PROHIBITS UNION MEMBERS FROM INITIATING A PRIVATE SUIT TO SET
ASIDE AN ELECTION.  CALHOON V. HARVEY, 379 U.S. 134, 140 (1964).  BUT
IN THIS CASE, PETITIONER SEEKS ONLY TO PARTICIPATE IN A PENDING SUIT
THAT IS PLAINLY AUTHORIZED BY THE STATUTE; IT CANNOT BE SAID THAT HIS
CLAIM IS DEFEATED BY THE BARE LANGUAGE OF THE ACT.  THE SECRETARY,
RELYING ON LEGISLATIVE HISTORY, ARGUES THAT SEC. 403 SHOULD BE
CONSTRUED TO BAR INTERVENTION AS WELL AS INITIATION OF A SUIT BY THE
MEMBERS.  IN HIS VIEW THE LEGISLATIVE HISTORY SHOWS THAT CONGRESS
DELIBERATELY CHOSE TO EXCLUDE UNION MEMBERS ENTIRELY FROM ANY DIRECT
PARTICIPATION IN JUDICIAL ENFORCEMENT PROCEEDINGS UNDER TITLE IV.  THE
SECRETARY'S ARGUMENT RESTS LARGELY ON THE FACT THAT TWO ALTERNATIVE
PROPOSALS FIGURED SIGNIFICANTLY IN THE LEGISLATIVE HISTORY OF TITLE IV,
AND EACH OF THESE REJECTED BILLS WOULD HAVE AUTHORIZED INDIVIDUAL UNION
MEMBERS TO BRING SUIT.  IN THE WORDS OF THE DISTRICT COURT: 

"WE THINK THE FACT THAT CONGRESS CONSIDERED TWO ALTERNATIVES-- SUIT
BY UNION MEMBERS AND SUIT BY THE SECRETARY-- AND THEN CHOSE THE LATTER
ALTERNATIVE AND LABELLED IT 'EXCLUSIVE' DEPRIVES THIS COURT OF
JURISDICTION TO PERMIT THE FORMER ALTERNATIVE VIA THE ROUTE OF
INTERVENTION."  52 F.R.D.,AT 272. 

THAT ARGUMENT MISCONCEIVES THE LEGISLATIVE HISTORY AND MISCONSTRUES
THE STATUTE.  A REVIEW OF THE LEGISLATIVE HISTORY SHOWS THAT CONGRESS
MADE SUIT BY THE SECRETARY THE EXCLUSIVE POST-ELECTION REMEDY FOR TWO
PRINCIPAL REASONS:  (1) TO PROTECT UNIONS FROM FRIVOLOUS LITIGATION AND
UNNECESSARY JUDICIAL INTERFERENCE WITH THEIR ELECTIONS, AND (2) TO
CENTRALIZE IN A SINGLE PROCEEDING SUCH LITIGATION AS MIGHT BE WARRANTED
WITH RESPECT TO A SINGLE ELECTION.  TITLE IV AS ENACTED SERVES THESE
PURPOSES BY REFERRING ALL COMPLAINTS TO THE SECRETARY SO THAT HE CAN
SCREEN OUT FRIVOLOUS ONES, AND BY CONSOLIDATING ALL MERITORIOUS
COMPLAINTS IN A SINGLE PROCEEDING, THE SECRETARY'S SUIT IN FEDERAL
DISTRICT COURT.  THE ALTERNATIVE PROPOSALS WERE REJECTED SIMPLY BECAUSE
THEY FAILED TO ACCOMPLISH THESE OBJECTIVES.  THERE IS NO EVIDENCE
WHATEVER THAT CONGRESS WAS OPPOSED TO PARTICIPATION BY UNION MEMBERS IN
THE LITIGATION, SO LONG AS THAT PARTICIPATION DID NOT INTERFERE WITH
THE SCREENING AND CENTRALIZING FUNCTIONS OF THE SECRETARY. 

THE ENFORCEMENT PROVISIONS OF TITLE IV ORIGINATED IN A BILL
INTRODUCED BY SENATOR JOHN KENNEDY IN 1958.  THAT BILL, S. 3751,
PROVIDED FOR SUIT BY THE SECRETARY AS THE EXCLUSIVE REMEDY FOR
VIOLATION OF THE RULES RELATING TO UNION ELECTIONS.  SENATOR KENNEDY
DESCRIBED THE BILL AS A "MODEST PROPOSAL," ONE WHICH WOULD PROTECT
UNION MEMBERS "WITHOUT UNDUE INTERFERENCE IN THE INTERNAL AFFAIRS OF
WHAT I BELIEVE ARE ESSENTIALLY PRIVATE INSTITUTIONS-- THAT IS, AMERICAN
TRADE UNIONS."  104 CONG.REC.  7954.  THE SENATE PASSED AN EXPANDED
VERSION OF THE BILL, S. 3974, WHICH RETAINED THE ORIGINAL ENFORCEMENT
SCHEME, AND REFLECTED A CONTINUING LEGISLATIVE INTEREST IN MINIMIZING
JUDICIAL INTERFERENCE WITH UNION ELECTIONS.  SEE S. REP. NO. 1684, 85TH
CONG., 2ND SESS., 12-15 (1958).  THAT BILL WAS DEFEATED IN THE HOUSE OF
REPRESENTATIVES, 104 CONG.REC.  18288, BUT ESSENTIALLY THE SAME
ENFORCEMENT SCHEME WAS RETAINED THE FOLLOWING YEAR IN S. 1555, THE
KENNEDY-ERVIN BILL WHICH WAS ULTIMATELY PASSED BY BOTH HOUSES AND
ENACTED INTO LAW. 

IN THE SENATE, THE PRINCIPAL ADVOCATE OF A PROVISION AUTHORIZING
INDIVIDUAL UNION MEMBERS TO BRING SUIT WAS SENATOR BARRY GOLDWATER.  HE
INTRODUCED A BILL, S. 748, ENDORSED BY THE ADMINISTRATION, THAT WOULD
HAVE AUTHORIZED BOTH THE SECRETARY AND THE MEMBERS TO FILE SUIT TO
ENFORCE THE RULES RELATING TO UNION ELECTIONS.  /6/  DURING THE SENATE
HEARINGS, A NUMBER OF WITNESSES COMPARED THE ENFORCEMENT PROVISIONS OF
THE TWO BILLS.  THE PRIMARY OBJECTION TO THE PROVISION FOR MEMBER SUITS
IN THE GOLDWATER BILL WAS THAT IT MIGHT LEAD TO MULTIPLE LITIGATION IN
MULTIPLE FORUMS, AND THEREBY IMPOSE ON THE UNION THE SEVERE BURDEN OF
MOUNTING MULTIPLE DEFENSES.  A RELATING OBJECTION WAS THAT THE
GOLDWATER BILL FAILED TO INTERPOSE A SCREENING MECHANISM BETWEEN THE
DISSATISFIED UNION MEMBER AND THE COURTROOM, AND THEREBY IMPOSED ON THE
UNION THE BURDEN OF RESPONDING TO FRIVOLOUS COMPLAINTS. 

PERHAPS THE MOST VEHEMENT OPPOSITION TO THE GOLDWATER BILL CAME FROM
THE AFL-CIO.  ITS SPOKESMAN, ANDREW BIEMILLER, TESTIFIED THAT "(THE
BILL WOULD RESULT IN PLACING UNION OFFICERS IN A STRAITJACKET SINCE
THEY COULD BE HALED INTO COURT, VIRTUALLY WITHOUT LIMITATION, TO DEFEND
UNION POLICIES OR PROGRAMS IN SUITS BROUGHT AGAINST THEM BY ANY
DISSIDENT UNION MEMBER (OR) MINORITY GROUP."  HEARINGS ON S. 505 ET AL.
BEFORE THE SUBCOMMITTEE ON LABOR OF THE SENATE COMMITTEE ON LABOR AND
PUBLIC WELFARE, 86TH CONG., 1ST SESS. 567 (1959); SEE ALSO ID., AT 578
579 (ANALYSIS OF S. 748 BY ARTHUR J. GOLDBERG, THEN SPECIAL COUNSEL TO
THE AFL-CIO).  MULTIPLE LITIGATION AND UNNECESSARY HARASSMENT, THEN,
WERE SEEN AS THE PRINCIPAL EVILS OF THE PROVISION FOR MEMBER SUITS. 
AND IT WAS PRECISELY THOSE EVILS THAT THE DRAFTSMEN OF THE KENNEDY
ERVIN BILL SOUGHT TO AVOID.  ACCORDING TO PROFESSOR ARCHIBALD COX, WHO
WAS A PRINCIPAL CONSULTANT TO THE DRAFTSMEN, THE KENNEDY PROPOSAL MADE
SUIT BY THE SECRETARY THE EXCLUSIVE POST-ELECTION REMEDY IN ORDER TO
"CENTRALIZE CONTROL OF THE PROCEEDINGS," TO ADJUDICATE THE VALIDITY OF
AN ELECTION "ONCE AND FOR ALL IN ONE FORUM," AND TO AVOID "UNNECESSARY
HARASSMENT OF THE UNION ON ONE SIDE AND . . . FRIENDLY SUITS AIMED AT
FORECLOSING THE SECRETARY'S ACTION ON THE OTHER."  ID., AT 135. 

THUS, WHEN THE SENATE COMMITTEE REPORTED OUT THE KENNEDY-ERVIN BILL
RATHER THAN ITS COMPETITOR, IT IS REASONABLE TO INFER THAT THE
COMMITTEE, AND LATER THE SENATE, REGARDED THE PROVISION FOR EXCLUSIVE
ENFORCEMENT BY THE SECRETARY AS A DEVICE FOR ELIMINATING FRIVOLOUS
COMPLAINTS AND CONSOLIDATING MERITORIOUS ONES.  THERE IS NO BASIS
WHATEVER FOR THE FURTHER CONCLUSION SUGGESTED BY THE SECRETARY, THAT
THE SENATE OPPOSED ANY FORM OF DIRECT PARTICIPATION BY UNION MEMBERS IN
TITLE IV ENFORCEMENT LITIGATION. 

THE LEGISLATIVE HISTORY IN THE HOUSE OF REPRESENTATIVES PROVIDES
EVEN LESS SUPPORT FOR THE SECRETARY'S POSITION.  THE HOUSE INITIALLY
REJECTED THE SENATE BILL AND PASSED AN ALTERNATIVE AUTHORIZING ONLY
UNION MEMBERS, AND NOT THE SECRETARY, TO BRING SUIT TO ENFORCE THE
ELECTION TITLE OF THE BILL.  H.R. 8342, SEE H.R. REP. NO. 741, 86TH
CONG., 1ST SESS., 15-17 (1959).  EVEN SENATOR GOLDWATER, THE LEADING
ADVOCATE OF MEMBER SUITS, THOUGHT THE HOUSE BILL INFERIOR TO THE SENATE
BILL IN THIS REGARD, BECAUSE THE MATTER OF ELECTION VIOLATIONS WAS TOO
IMPORTANT TO BE LEFT EXCLUSIVELY TO THE VAGARIES OF PRIVATE
ENFORCEMENT.  105 CONG.REC.  16489 (COMPARISON OF HOUSE AND SENATE
BILLS BY SEN. GOLDWATER).  THE CONFERENCE COMMITTEE AND THE HOUSE
ULTIMATELY ADOPTED THE SENATE'S ENFORCEMENT PROVISIONS, THEREBY
AFFIRMING THE NEED FOR PUBLIC ENFORCEMENT OF TITLE IV.  SEE H.R. CONF.
REP. NO. 1147, 86TH CONG., 1ST SESS., 35 (1959).  THAT ACTION, HOWEVER,
CAN IN NO SENSE BE READ AS A REJECTION OF ALL FORMS OF PRIVATE
PARTICIPATION IN ENFORCEMENT LITIGATION, SINCE THE HOUSE AT NO TIME
CONSIDERED THE POSSIBILITY THAT UNION MEMBERS MIGHT ASSIST THE
SECRETARY RATHER THAN DISPLACE HIM. 

WITH RESPECT TO LITIGATION BY UNION MEMBERS, THEN, THE LEGISLATIVE
HISTORY SUPPORTS THE CONCLUSION THAT CONGRESS INTENDED TO PREVENT
MEMBERS FROM PRESSING CLAIMS NOT THOUGHT MERITORIOUS BY THE SECRETARY,
AND FROM LITIGATING IN FORUMS OR AT TIMES DIFFERENT FROM THOSE CHOSEN
BY THE SECRETARY.  ONLY IF INTERVENTION WOULD FRUSTRATE EITHER OF THOSE
OBJECTIVES CAN THE STATUTE FAIRLY BE READ TO PROHIBIT INTERVENTION AS
WELL AS INITIATION OF SUITS BY MEMBERS. 

        II 

INTERVENTION BY UNION MEMBERS IS A PENDING ENFORCEMENT SUIT, UNLIKE
INITIATION OF A SEPARATE SUIT, SUBJECTS THE UNION TO RELATIVELY LITTLE
ADDITIONAL BURDEN.  /7/  THE PRINCIPAL INTRUSION ON INTERNAL UNION
AFFAIRS HAS ALREADY BEEN ACCOMPLISHED, IN THAT THE UNION HAS ALREADY
BEEN SUMMONED INTO COURT TO DEFEND THE LEGALITY OF ITS ELECTION. 
INTERVENTION IN THE SUIT BY UNION MEMBERS WILL NOT SUBJECT THE UNION TO
BURDENSOME MULTIPLE LITIGATION, NOR WILL IT COMPEL THE UNION TO RESPOND
TO A NEW AND POTENTIALLY GROUNDLESS SUIT.  THUS, AT LEAST INSOFAR AS
PETITIONER SEEKS ONLY TO PRESENT EVIDENCE AND ARGUMENT IN SUPPORT OF
THE SECRETARY'S COMPLAINT, THERE IS NOTHING IN THE LANGUAGE OR THE
HISTORY OF THE LMRDA TO PREVENT SUCH INTERVENTION. 

THE QUESTION IS CLOSER WITH RESPECT TO PETITIONER'S ATTEMPT TO ADD
TO THE SECRETARY'S COMPLAINT TWO ADDITIONAL GROUNDS FOR SETTING ASIDE
THE UNION ELECTION.  THESE ARE CLAIMS THAT THE SECRETARY HAS PRESUMABLY
DETERMINED TO BE WITHOUT MERIT.  HENCE, TO REQUIRE THE UNION TO RESPOND
TO THESE CLAIMS WOULD BE TO CIRCUMVENT THE SCREENING FUNCTION ASSIGNED
BY STATUTE TO THE SECRETARY.  WE RECOGNIZE THAT IT IS LESS BURDENSOME
FOR THE UNION TO RESPOND TO NEW CLAIMS IN THE CONTEXT OF THE PENDING
SUIT THAN IT WOULD BE TO RESPOND TO A NEW AND INDEPENDENT COMPLAINT. 
NEVERTHELESS, WE THINK CONGRESS INTENDED TO INSULATE THE UNION FROM ANY
COMPLAINT THAT DID NOT APPEAR MERITORIOUS TO BOTH A COMPLAINING MEMBER
AND THE SECRETARY.  ACCORDINGLY, WE HOLD THAT IN A POST-ELECTION
ENFORCEMENT SUIT, TITLE IV IMPOSES NO BAR TO INTERVENTION BY A UNION
MEMBER, SO LONG AS THE INTERVENTION IS LIMITED TO THE CLAIMS OF
ILLEGALITY PRESENTED BY THE SECRETARY'S COMPLAINT.  /8/

        III 

FINALLY, THE SECRETARY ARGUES THAT EVEN IF THE LMRDA DOES NOT BAR
INTERVENTION, PETITIONER HAS NO RIGHT TO INTERVENE UNDER THE TERMS OF
FED. RULE CIV. PROC. 24(A).  RULE 24(A)(2) GIVES ONE A RIGHT TO
INTERVENE IF (1) HE CLAIMS A SUFFICIENT INTEREST IN THE PROCEEDINGS,
AND (2) THAT INTEREST IS NOT "ADEQUATELY REPRESENTED BY EXISTING
PARTIES."  /9/     THE SECRETARY DOES NOT CONTEND THAT PETITIONER'S
INTEREST IN THIS LITIGATION IS INSUFFICIENT; HE ARGUES, RATHER, THAT
ANY INTEREST PETITIONER HAS IS ADEQUATELY REPRESENTED BY THE
SECRETARY.  THE COURT BELOW DID NOT REACH THIS QUESTION, IN LIGHT OF
ITS THRESHOLD DETERMINATION THAT RULE 24 HAD NO APPLICATION TO THE
CASE.  NEVERTHELESS, WE THINK IT CLEAR THAT IN THIS CASE THERE IS
SUFFICIENT DOUBT ABOUT THE ADEQUACY OF REPRESENTATION TO WARRANT
INTERVENTION.  /10/ 

THE SECRETARY CONTENDS THAT PETITIONER'S ONLY LEGALLY COGNIZABLE
INTEREST IS THE INTEREST OF ALL UNION MEMBERS IN DEMOCRATIC ELECTIONS,
AND HE SAYS THAT INTEREST IS IDENTICAL WITH THE INTEREST REPRESENTED BY
THE SECRETARY IN TITLE IV LITIGATION.  HENCE HE ARGUES THAT
PETITIONER'S INTEREST MUST BE ADEQUATELY REPRESENTED UNLESS THE COURT
IS PREPARED TO FIND THAT THE SECRETARY HAS FAILED TO PERFORM HIS
STATUTORY DUTY.  WE DISAGREE. 

THE STATUTE PLAINLY IMPOSES ON THE SECRETARY THE DUTY TO SERVE TWO
DISTINCT INTERESTS, WHICH ARE RELATED, BUT NOT IDENTICAL.  FIRST, THE
STATUTE GIVES THE INDIVIDUAL UNION MEMBERS CERTAIN RIGHTS AGAINST THEIR
UNION, AND "THE SECRETARY OF LABOR IN EFFECT BECOMES THE UNION MEMBER'S
LAWYER" FOR PURPOSES OF ENFORCING THOSE RIGHTS.  104 CONG.REC.  10947
(REMARKS OF SEN. KENNEDY).  AND SECOND, THE SECRETARY HAS AN OBLIGATION
TO PROTECT THE "VITAL PUBLIC INTEREST IN ASSURING FREE AND DEMOCRATIC
UNION ELECTIONS THAT TRANSCENDS THE NARROWER INTEREST OF THE
COMPLAINING UNION MEMBERS."  WIRTZ V. LOCAL 153, GLASS BOTTLE BLOWERS
ASSN., 389 U.S. 463, 475 (1968).  BOTH FUNCTIONS ARE IMPORTANT, AND
THEY MAY NOT ALWAYS DICTATE PRECISELY THE SAME APPROACH TO THE CONDUCT
OF THE LITIGATION.  EVEN IS THE SECRETARY IS PERFORMING HIS DUTIES,
BROADLY CONCEIVED, AS WELL AS CAN BE EXPECTED, THE UNION MEMBER MAY
HAVE A VALID COMPLAINT ABOUT THE PERFORMANCE OF "HIS LAWYER."  SUCH A
COMPLAINT, FILED BY THE MEMBER WHO INITIATED THE ENTIRE ENFORCEMENT
PROCEEDING, SHOULD BE REGARDED AS SUFFICIENT TO WARRANT RELIEF IN THE
FORM OF INTERVENTION UNDER RULE 24(A)(2). 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS TO ALLOW LIMITED INTERVENTION IN ACCORDANCE WITH
THIS OPINION. 

              SO ORDERED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  THE COMPLAINT ALLEGED THAT THE UNION VIOLATED THE ACT BY, INTER
ALIA, FAILING TO USE SECRET BALLOTS, PERMITTING CAMPAIGNING AT THE
POLLS, DENYING CANDIDATES THE RIGHT TO HAVE OBSERVERS AT POLLING PLACES
AND AT THE COUNTING OF BALLOTS, SUBJECTING MEMBERS TO REPRISALS IN
CONNECTION WITH THEIR ELECTION ACTIVITIES, FAILING TO CONDUCT ELECTIONS
IN SOME LOCALS, AND USING UNION ASSETS TO PROMOTE THE CANDIDACY OF THE
INCUMBENTS. 

/2/  PETITIONER ALLEGED AS ADDITIONAL VIOLATIONS OF THE ACT (1) THAT
THE UNION REQUIRED MEMBERS TO VOTE IN CERTAIN LOCALS, COMPOSED ENTIRELY
OF PENSIONERS, WHICH PETITIONER CLAIMS ARE ILLEGALLY CONSTITUTED UNDER
THE UMWA CONSTITUTION; AND (2) THAT THE INCUMBENT PRESIDENT IMPROPERLY
INFLUENCED THE PENSIONERS' VOTE BY BRINGING ABOUT A PENSION INCREASE
JUST BEFORE THE ELECTION. 

/3/  PETITIONER ASKS THE COURT TO ORDER THE UNION TO DISBAND THE
PENSIONER LOCALS, TO PUBLISH A RULING TO THE EFFECT THAT THE PRESIDENT
BREACHED HIS FIDUCIARY DUTY BY BRINGING ABOUT THE PENSION INCREASE, AND
TO ESTABLISH NEW COMPREHENSIVE RULES TO GOVERN FUTURE ELECTIONS. 

/4/ WE EXPEDITED CONSIDERATION OF THIS CASE IN VIEW OF THE FACT THAT
THE LITIGATION IS PRESENTLY PENDING IN THE DISTRICT COURT AND IT HAS
NOT BEEN STAYED. 

/5/  SEE GENERALLY AARON, THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959, 73 HARV.L.REV.  851 (1960); COX, INTERNAL
AFFAIRS OF LABOR UNIONS UNDER THE LABOR REFORM ACT OF 1959, 58
MICH.L.REV.  819 (1960). 

/6/  THE GOLDWATER-ADMINISTRATION BILL PROVIDED THAT A MEMBER COULD
FILE SUIT WITH RESPECT TO ANY VIOLATION OF THE ELECTION TITLE UNLESS
THAT CLAIMED VIOLATION WAS THE SUBJECT OF A PENDING ACTION BY THE
SECRETARY.  IT ALSO PROVIDED THAT ENFORCEMENT SUITS COULD BE FILED IN
EITHER STATE OR FEDERAL COURTS.  THE QUESTION OF MEMBER SUITS WAS,
THROUGHOUT THE DEBATES, INTERTWINED WITH THE QUESTION OF PRESERVING PRE
EXISTING STATE REMEDIES, SINCE PRIOR TO THE ENACTMENT OF THE LMRDA THE
ONLY REMEDY FOR ILLEGAL ELECTION CONDUCT WAS A MEMBER SUIT IN STATE
COURT. 

PRE-EXISTING STATE REMEDIES PRESENTED THE ADDITIONAL PROBLEM, NOT
RELEVANT HERE, OF MULTIPLE LITIGATION THAT WAS NOT ONLY INCONVENIENT AS
A MATTER OF PROCEDURE BUT ALSO IN CONFLICT AS A MATTER OF SUBSTANCE,
FOR THE STATE REMEDIES RELATED TO STATE-DEFINED RIGHTS THAT WERE NOT
ALWAYS IDENTICAL TO THE NEW RIGHTS DEFINED IN THE LMRDA.  THE DEBATES
REFLECT GREAT CONCERN WITH THE PROPER RELATIONSHIP BETWEEN STATE AND
FEDERAL REMEDIES, AND MUCH LESS CONCERN WITH THE RELATIONSHIP BETWEEN
PRIVATE AND PUBLIC ENFORCEMENT.  SEE, E.G., (MAJORITY AND MINORITY
VIEWS): HEARINGS ON H.R. 3540 ET AL. BEFORE A JOINT SUBCOMMITTEE OF THE
HOUSE COMMITTEE OF EDUCATION AND LABOR, 86TH CONG., 1ST SESS., PT. 4,
P. 1611 (1959) (ANALYSIS OF S. 1555 BY SEN. GOLDWATER), REPRINTED AT
105 CONG.REC.  10102. 

/7/  FOR THE ORIGINS AND DEVELOPMENT OF THE PROCEDURAL DEVICE OF
INTERVENTION, SEE MOORE & LEVI, FEDERAL INTERVENTION, 45 YALE L.J. 565
(1936), 47 YALE L.J. 898 (1938); DEVELOPMENTS IN THE LAW-- MULTI-PARTY
LITIGATION IN THE FEDERAL COURTS, 71 HARV.L.REV.  874, 897-906, 988-992
(1958).  THE DISTINCTION BETWEEN INTERVENTION AND INITIATION IS
THOUGHTFULLY DISCUSSED IN SHAPIRO, SOME THOUGHTS ON INTERVENTION BEFORE
COURTS, AGENCIES, AND ARBITRATORS, 81 HARV.L.REV.  721, 726-729
(1968). 

/8/  THIS LIMITATION, HOWEVER, APPLIES ONLY TO THE CLAIMED GROUNDS
FOR SETTING ASIDE THE OLD ELECTION, AND NOT TO BE PROPOSED TERMS FOR
ANY NEW ONE THAT MAY BE ORDERED.  FOR IF THE COURT FINDS MERIT IN THE
SECRETARY'S COMPLAINT AND SETS THE ELECTION ASIDE, THEN THE STATUTE
REQUIRED THE COURT TO DIRECT A NEW ELECTION IN CONFORMITY WITH THE
CONSTITUTION AND BYLAWS OF THE UNION, AND THE REQUIREMENTS OF TITLE IV.
SINCE THE COURT IS NOT LIMITED IN THIS REGARD TO CONSIDERATION OF
REMEDIES PROPOSED BY THE SECRETARY, THERE IS NO REASON TO PREVENT THE
INTERVENORS FROM ASSISTING THE COURT IN FASHIONING A SUITABLE REMEDIAL
ORDER.  CF. HODGSON V. STEELWORKERS, 403 U.S. 333, 344 (WHITE, J.,
DISSENTING). 

/9/  FED. RULE CIV. PROC. 24(A): 

"UPON TIMELY APPLICATION ANYONE SHALL BE PERMITTED TO INTERVENE IN
AN ACTION: . . . (2) WHEN THE APPLICANT CLAIMS AN INTEREST RELATING TO
THE PROPERTY OR TRANSACTION WHICH IS THE SUBJECT OF THE ACTION AND HE
IS SO SITUATED THAT THE DISPOSITION OF THE ACTION MAY AS A PRACTICAL
MATTER IMPAIR OR IMPEDE HIS ABILITY TO PROTECT THAT INTEREST, UNLESS
THE APPLICANT'S INTEREST IS ADEQUATELY REPRESENTED BY EXISTING
PARTIES." 

/10/  THE REQUIREMENT OF THE RULE IS SATISFIED IF THE APPLICANT
SHOWS THAT REPRESENTATION OF HIS INTEREST "MAY BE" INADEQUATE; AND THE
BURDEN OF MAKING THAT SHOWING SHOULD BE TREATED AS MINIMAL.  SEE 3B
J.MOORE, FEDERAL PRACTICE PARA. 24.09-1(4)(1969). 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I JOIN THE OPINION OF THE COURT TO THE EXTENT THAT IT HOLDS THAT
TITLE IV OF THE LANDRUM-GRIFFIN ACT DOES NOT BAR INTERVENTION BY UNION
MEMBERS, PURSUANT TO FED. RULE CIV. PROC. 24(A), IN SUITS INITIATED BY
THE SECRETARY OF LABOR CHALLENGING UNION ELECTIONS.  I DIFFER FROM THE
MAJORITY, HOWEVER, IN THAT I WOULD ALSO PERMIT THE UNION MEMBERS IN
THIS CASE TO RAISE THEIR ADDITIONAL GROUNDS /1/  FOR SETTING ASIDE THE
DISPUTED ELECTION.  IN MY VIEW, THE LIMITED INTERVENTION GRANTED BY THE
MAJORITY SERVES NEITHER THE PURPOSE OF THE LIBERALIZING 1966 AMENDMENTS
TO RULE 24, NOR THE TWIN PURPOSES OF TITLE IV-- TO PRESERVE UNIONS FROM
A MULTIPLICITY OF FRIVOLOUS ELECTION CHALLENGES, AND ALSO TO CENTRALIZE
IN A SINGLE PROCEEDING SUCH LITIGATION AS MIGHT BE WARRANTED WITH
RESPECT TO A SINGLE ELECTION. 

HERE, THE SECRETARY HAS SERVED HIS SCREENING FUNCTION.  HE HAS
DECIDED THAT PETITIONER'S ELECTION CHALLENGE IS MERITORIOUS.  THE COURT
CONCEDES, MOREOVER, THAT THE BURDEN ON THE UNION TO DEFEND AGAINST THE
ADDITIONAL CLAIMS WOULD NOT BE PARTICULARLY BURDENSOME, COMPARED TO THE
ONUS OF AN INDEPENDENT ACTION.  ANTE, AT 537.  THESE CLAIMS RELATE
SQUARELY TO THE ELECTION WHOSE LEGALITY THE UNION MUST DEFEND.  I WOULD
PERMIT THEM TO BE HEARD. 

/1/  THESE CLAIMS BOTH RELATED TO ALLEGED MANIPULATION OF PENSIONERS
BY THE INCUMBENTS.  ONE CLAIM ATTACKED SO-CALLED "BOGUS" LOCALS,
COMPOSED ENTIRELY OF PENSIONERS, WHICH WERE "RUN" BY THE INCUMBENTS. 
THE SECOND CLAIM WAS THAT THE UNION PRESIDENT ATTEMPTED IMPROPERLY TO
INFLUENCE THE PENSIONERS' VOTE BY ARRANGING FOR INCREASED PENSION
BENEFITS JUST BEFORE THE ELECTION. 

JOSEPH L. RAUH, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE JOHN SILARD, ELLIOTT C. LICHTMAN, JOSEPH A. YABLONSKI,
AND CLARICE R. FELDMAN. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR RESPONDENT SECRETARY
OF LABOR.  WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL GRAY,
HARRY R. SACHSE, WALTER H. FLEISCHER, RAYMOND D. BATTOCCHI, RICHARD F.
SCHUBERT, GEORGE T. AVERY, AND BEATE BLOCH.  EDWARD L. CAREY, HARRISON
COMBS, WILLARD P. OWENS, CHARLES L. WIDMAN, AND M. E. BOIARSKY FILED A
BRIEF FOR RESPONDENT UNITED MINE WORKERS OF AMERICA. 

MELVIN L. WULF AND SANFORD JAY ROSEN FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING REVERSAL. 
..END :









GROPPI V. LESLIE, 404 U.S. 496 


       GROPPI V. LESLIE, SHERIFF

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 70-112.  ARGUED NOVEMBER 10, 1971-- DECIDED JANUARY 13,

           1972 


WISCONSIN LEGISLATIVE RESOLUTION CITING PETITIONER FOR CONTEMPT FOR
CONDUCT ON THE FLOOR OF THE STATE ASSEMBLY THAT OCCURRED TWO DAYS
PREVIOUS TO THE CONTEMPT RESOLUTION AND SENTENCING HIM TO CONFINEMENT
HELD VIOLATIVE OF DUE PROCESS, SINCE, PETITIONER, WHO WAS READILY
AVAILABLE, WAS GIVEN NO NOTICE BEFORE THE RESOLUTION WAS ADOPTED OR
AFFORDED ANY OPPORTUNITY TO RESPOND BY WAY OF DEFENSE OR EXTENUATION. 
PP. 499-507. 

436 F.2D 326 AND 331, REVERSED. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT POWELL AND REHNQUIST, JJ., WHO TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT OF CERTIORARI TO REVIEW THE HOLDING OF THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT, DENYING PETITIONER RELIEF IN HABEAS
CORPUS PROCEEDINGS AFTER THE DISTRICT COURT HAD GRANTED RELIEF. 

ON OCTOBER 1, 1969, THE ASSEMBLY OF THE WISCONSIN LEGISLATURE PASSED
A RESOLUTION CITING PETITIONER FOR CONTEMPT AND DIRECTING HIS
CONFINEMENT IN THE DANE COUNTY JAIL FOR A PERIOD OF SIX MONTHS OR FOR
THE DURATION OF THE 1969 REGULAR SESSION OF THE LEGISLATURE, WHICHEVER
WAS SHORTER.  THE RESOLUTION RECITED THAT PETITIONER HAD, TWO DAYS
PREVIOUSLY, LED A GATHERING OF PEOPLE WHICH, BY ITS PRESENCE ON THE
FLOOR OF THE ASSEMBLY DURING A REGULAR MEETING IN VIOLATION OF AN
ASSEMBLY RULE, "PREVENTED THE ASSEMBLY FROM CONDUCTING PUBLIC BUSINESS
AND PERFORMING ITS CONSTITUTIONAL DUTY."  THE RESOLUTION CONTAINED A
FINDING THAT PETITIONER'S ACTIONS CONSTITUTED "DISORDERLY CONDUCT IN
THE IMMEDIATE VIEW OF THE HOUSE AND DIRECTLY TENDING TO INTERRUPT ITS
PROCEEDINGS"  WHICH THE ASSEMBLY WAS AUTHORIZED TO PUNISH UNDER THE
STATE CONSTITUTION AND STATUTES.  /1/ 

THE RECORD BEFORE US CONTAINS LITTLE TO FLESH OUT THE RECITATIONS OF
THE CONTEMPT RESOLUTION WITH THE DETAILS OF PETITIONER'S CONDUCT ON THE
DAY OF SEPTEMBER 29, 1969.  THE WISCONSIN SUPREME COURT, IN ITS OPINION
DENYING PETITIONER'S APPLICATION FOR HABEAS CORPUS, TOOK JUDICIAL
NOTICE THAT PETITIONER'S CONDUCT WAS DESIGNED TO PROTEST CUTS IN THE
STATE BUDGET FOR CERTAIN WELFARE PROGRAMS, AND THAT THE "OCCUPATION" OF
THE ASSEMBLY CHAMBER BY PETITIONER AND HIS SUPPORTERS CONTINUED FROM
MIDDAY TO "WELL TOWARD MIDNIGHT," DURING ALL OF WHICH TIME THE ASSEMBLY
WAS PREVENTED FROM CONDUCTING ITS LAWFUL BUSINESS.  /2/ 

THE CONTEMPT RESOLUTION WAS ADOPTED WITHOUT GIVING NOTICE TO
PETITIONER OR AFFORDING HIM AN OPPORTUNITY TO PRESENT A DEFENSE OR
INFORMATION IN MITIGATION.  A COPY OF THE RESOLUTION WAS THEN SERVED ON
PETITIONER WHO, AT THE TIME THE RESOLUTION WAS PASSED, WAS ALREADY
CONFINED IN THE DANE COUNTY JAIL FOLLOWING HIS ARREST ON DISORDERLY
CONDUCT CHARGES ARISING OUT OF THE SAME INCIDENT AS THAT UNDERLYING THE
RESOLUTION.  /3/  PETITIONER'S CONFINEMENT AFTER HE WAS SERVED WITH THE
RESOLUTION WAS PURSUANT TO ITS AUTHORITY. 

PETITIONER THEN COMMENCED ACTIONS IN BOTH STATE AND FEDERAL COURTS
CONTENDING THAT HIS CONFINEMENT VIOLATED HIS CONSTITUTIONAL RIGHTS, AND
SEEKING HIS RELEASE.  PETITIONER'S APPLICATIONS FOR HABEAS CORPUS WERE
DENIED BY THE CIRCUIT COURT FOR DANE COUNTY AND THE WISCONSIN SUPREME
COURT.  HOWEVER, AFTER THE STATE COURTS HAD ACTED, THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN GRANTED
PETITIONER'S FEDERAL HABEAS APPLICATION.  THE DISTRICT COURT WAS OF THE
VIEW THAT PETITIONER HAD BEEN DENIED DUE PROCESS OF LAW GUARANTEED BY
THE FOURTEENTH AMENDMENT BY THE FAILURE OF THE ASSEMBLY TO ACCORD HIM
"SOME MINIMAL OPPORTUNITY TO APPEAR AND TO RESPOND TO A CHARGE" PRIOR
TO THE IMPOSITION OF PUNISHMENT FOR CONTEMPT.  ON APPEAL, THE COURT OF
APPEALS REVERSED THE HOLDING OF THE DISTRICT COURT; THE HOLDING OF THE
PANEL WAS ADOPTED BY A NARROWLY DIVIDED COURT ON REHEARING EN BANC.  WE
GRANTED CERTIORARI.  FOR THE REASONS STATED HEREIN, WE CONCLUDE THAT
PETITIONER WAS DENIED DUE PROCESS OF LAW BY THE PROCEDURES EMPLOYED IN
PUNISHING HIM FOR CONTEMPT, AND WE REVERSE THE JUDGMENT OF THE COURT OF
APPEALS. 

        I 

THE PAST DECISIONS OF THIS COURT EXPRESSLY RECOGNIZING THE POWER OF
THE HOUSES OF THE CONGRESS TO PUNISH CONTEMPTUOUS CONDUCT LEAVE LITTLE
QUESTION THAT THE CONSTITUTION IMPOSES NO GENERAL BARRIERS TO THE
LEGISLATIVE EXERCISE OF SUCH POWER.  E.G., JURNEY V. MACCRACKEN, 294
U.S. 125 (1935); ANDERSON V. DUNN, 6 WHEAT.  204 (1821).  THERE IS
NOTHING IN THE CONSTITUTION THAT WOULD PLACE GREATER RESTRICTIONS ON
THE STATES THAN ON THE FEDERAL GOVERNMENT IN THIS REGARD.  SEE KILBOURN
V. THOMPSON, 103 U.S. 168, 199 (1881).  WE ARE THEREFORE CONCERNED ONLY
WITH THE PROCEDURES THAT THE DUE PROCESS CLAUSE OF THE FEDERAL
CONSTITUTION REQUIRES A STATE LEGISLATURE TO MEET IN IMPOSING
PUNISHMENT FOR CONTEMPTUOUS CONDUCT COMMITTED IN ITS PRESENCE. 

THIS COURT HAS OFTEN RECOGNIZED THAT THE REQUIREMENTS OF DUE PROCESS
CANNOT BE ASCERTAINED THROUGH MECHANICAL APPLICATION OF A FORMULA. 
SEE, E.G., CAFETERIA WORKERS V. MCELROY, 367 U.S. 886, 894-895 (1961);
HANNAH V. LARCHE, 363 U.S. 420 (1960).  MR. JUSTICE FRANKFURTER, IN
ANOTHER CONTEXT, APTLY STATED THAT DUE PROCESS "IS COMPOUNDED OF
HISTORY, REASON, THE PAST COURSE OF DECISIONS, AND STOUT CONFIDENCE IN
THE STRENGTH OF THE DEMOCRATIC FAITH WHICH WE PROFESS . . . . " JOINT
ANTI-FACIST COMMITTEE V. MCGRATH, 341 U.S. 123, 162-163 (1951)
(CONCURRING OPINION).  COURTS MUST BE SENSITIVE TO THE NATURE OF A
LEGISLATIVE CONTEMPT PROCEEDING AND THE "POSSIBLE BURDEN ON THAT
PROCEEDING" THAT A GIVEN PROCEDURE MIGHT ENTAIL.  HANNAH V. LARCHE, 363
U.S.,AT 442.  LEGISLATURES ARE NOT CONSTITUTED TO CONDUCT FULL-SCALE
TRIALS OR QUASI-JUDICIAL PROCEEDINGS AND WE SHOULD NOT DEMAND THAT THEY
DO SO ALTHOUGH THEY POSSESS INHERENT POWER TO PROTECT THEIR OWN
PROCESSES AND EXISTENCE BY WAY OF CONTEMPT PROCEEDINGS.  FOR THIS
REASON, THE CONGRESS OF THE UNITED STATES, FOR EXAMPLE, NO LONGER
UNDERTAKES TO EXERCISE ITS CONTEMPT POWERS IN ALL CASES BUT ELECTS TO
DELEGATE THAT FUNCTION TO FEDERAL COURTS.  52 STAT. 942, 2 U.S.C. 192
194. 

THE POTENTIAL FOR DISRUPTING OR IMMOBILIZING THE VITAL LEGISLATIVE
PROCESSED OF STATE AND FEDERAL GOVERNMENTS THAT WOULD FLOW FROM A RULE
REQUIRING A FULL-BLOWN LEGISLATIVE "TRIAL" PRIOR TO THE IMPOSITION OF
PUNISHMENT FOR CONTEMPT OF THE LEGISLATURE IF A FACTOR ENTITLED TO VERY
GREAT WEIGHT; THIS IS PARTICULARLY TRUE WHERE THE CONTEMPTUOUS CONDUCT,
AS HERE, IS COMMITTED DIRECTLY IN THE PRESENCE OF THE LEGISLATIVE
BODY.  THE PAST DECISIONS OF THIS COURT STRONGLY INDICATE THAT THE
PANOPLY OF PROCEDURAL RIGHTS THAT ARE ACCORDED A DEFENDANT IN A
CRIMINAL TRIAL HAS NEVER BEEN THOUGHT NECESSARY IN LEGISLATIVE CONTEMPT
PROCEEDINGS.  THE CUSTOMARY PRACTICE IN CONGRESS HAS BEEN TO PROVIDE
THE CONTEMNOR WITH AN OPPORTUNITY TO APPEAR BEFORE THE BAR OF THE
HOUSE, OR BEFORE A COMMITTEE, AND GIVE ANSWER TO THE MISCONDUCT CHARGED
AGAINST HIM.  SEE JURNEY V. MACCRACKEN, 294 U.S.,AT 143-144; KILBOURN
V. THOMPSON, 103 U.S.,AT 173, 174; ANDERSON V. DUNN, 6 WHEAT.,AT 209
211; MARSHALL V. GORDON, 243 U.S. 521, 532 (1917).  /4/  SUCH WOULD
APPEAR TO HAVE BEEN THE GENERAL PRACTICE IN COLONIAL TIMES, AND IN THE
EARLY STATE LEGISLATURES.  /5/  THIS PRACTICE MORE NEARLY RESEMBLES THE
TRADITIONAL RIGHT OF A CRIMINAL DEFENDANT TO ALLOCUTION PRIOR TO THE
IMPOSITION OF SENTENCE THAN IT DOES A CRIMINAL PROSECUTION.  SEE GREEN
V. UNITED STATES, 365 U.S. 301 (1961). 

        II 

IN THIS CASE, HOWEVER, THERE IS NO OCCASION TO DEFINE OR DELINEATE
PRECISELY WHAT PROCESS IS DUE AND MUST BE ACCORDED TO A CONTEMNOR PRIOR
TO THE LEGISLATIVE IMPOSITION OF PUNISHMENT FOR CONTEMPTUOUS CONDUCT. 
HERE, THE WISCONSIN ASSEMBLY, TWO DAYS AFTER THE CONDUCT HAD OCCURRED,
FOUND PETITIONER IN CONTEMPT AND SENTENCED HIM TO CONFINEMENT WITHOUT
GIVING HIM NOTICE OF ANY KIND OR OPPORTUNITY TO ANSWER.  THERE IS NO
QUESTION OF HIS HAVING FLED OR BECOME OTHERWISE UNAVAILABLE FOR, AS WE
HAVE NOTED, HE WAS CONFINED IN THE COUNTY JAIL AT THE TIME, AND COULD
EASILY HAVE BEEN GIVEN NOTICE, IF INDEED NOT COMPELLED, TO APPEAR
BEFORE THE ASSEMBLY.  WE FIND LITTLE IN OUR PAST DECISIONS THAT WOULD
SHED LIGHT ON THE PRECISE PROBLEM, BUT NOTHING TO GIVE WARRANT TO THE
SUMMARY PROCEDURE EMPLOYED HERE, COMING AS IT DID TWO DAYS AFTER THE
CONTEMPT.  INDEED, WE HAVE STATED TIME AND AGAIN THAT REASONABLE NOTICE
OF A CHARGE AND AN OPPORTUNITY TO BE HEARD IN DEFENSE BEFORE PUNISHMENT
IS IMPOSED ARE "BASIC IN OUR SYSTEM OF JURISPRUDENCE."  IN RE OLIVER,
333 U.S. 257, 273 (1948).  SEE, E.G., JOINT ANTI-FACIST COMMITTEE V.
MCGRATH, 341 U.S.,AT 143, 164-165, 171-172, 185 (CONCURRING OPINIONS OF
BLACK, FRANKFURTER, DOUGLAS, AND JACKSON, JJ.); COLE V. ARKANSAS, 333
U.S. 196, 201 (1948).  WE HAVE EMPHASIZED THIS FUNDAMENTAL PRINCIPLE
WHERE RIGHTS OF LESS STANDING THAN PERSONAL LIBERTY WERE AT STAKE. 
E.G., SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337 (1969); MORGAN V.
UNITED STATES, 304 U.S. 1, 18 (1938); GRANNIS V. ORDEAN, 234 U.S. 385,
394 (1914).  IN MULLANE V. CENTRAL HANOVER TRUST CO., 339 U.S. 306
(1950), THE COURT STATED: 

"MANY CONTROVERSIES HAVE RAGED ABOUT THE CRYPTIC AND ABSTRACT WORDS
OF THE DUE PROCESS CLAUSE BUT THERE CAN BE NO DOUBT THAT AT A MINIMUM
THEY REQUIRE THAT DEPRIVATION OF LIFE, LIBERTY OR PROPERTY BY
ADJUDICATION BE PRECEDED BY NOTICE AND OPPORTUNITY FOR HEARING
APPROPRIATE TO THE NATURE OF THE CASE."  339 U.S.,AT 313. 

ALTHOUGH THIS LANGUAGE WAS ADDRESSED TO JUDICIAL ADJUDICATION,
HISTORICAL PRACTICE WOULD INDICATE THAT LEGISLATURES THEMSELVES HAVE
RECOGNIZED THE VALUE OF PRIOR NOTICE AND HEARING IN CASES OF
LEGISLATIVE CONTEMPT. 

IN EXERCISE OF THE RIGHT TO BE HEARD, HOWEVER BRIEFLY-- THE LENGTH
AND NATURE OF WHICH WOULD TRADITIONALLY BE LEFT LARGELY TO THE
LEGISLATIVE BODY-- THE PUTATIVE CONTEMNOR MIGHT ESTABLISH, FOR EXAMPLE,
THAT IT WAS A CASE OF MISTAKEN IDENTITY, OR, ALSO BY WAY OF AFFIRMATIVE
DEFENSE, THAT HE WAS MENTALLY INCOMPETENT.  /6/  OTHER MATTERS IN
EXPLANATION OR MITIGATION MIGHT LESSEN THE HARSHNESS OF THE LEGISLATIVE
JUDGMENT OR AVOID PUNISHMENT ALTOGETHER. 

III 

WISCONSIN, HOWEVER, ARGUES THAT THE POWER OF A LEGISLATURE TO
SUMMARILY PUNISH FOR CONTEMPTS COMMITTED IN ITS IMMEDIATE PRESENCE
FOLLOWS LOGICALLY FROM THE RECOGNIZED POWER OF COURTS IN THAT RESPECT. 
E.G., EX PARTE TERRY, 128 U.S. 289 (1888).  EVEN IF IT BE ASSUMED THAT
COURTS AND LEGISLATURES ARE FULLY ANALOGOUS IN THIS RESPECT, THE
RECORDED CASES DEALING WITH THE POWER OF A COURT TO IMPOSE SUMMARY
PUNISHMENT FOR CONTEMPT COMMITTED IN ITS IMMEDIATE PRESENCE SHOW THAT
SUCH POWER HAS NOT ORDINARILY BEEN EXERCISED UNDER CONDITIONS SUCH AS
THOSE HERE WITH A LAPSE OF TWO DAYS FOLLOWING THE EVENT AND WITHOUT
NOTICE OR OPPORTUNITY FOR HEARING OF ANY KIND.  A LEGISLATURE, LIKE A
COURT, MUST, OF NECESSITY, POSSESS THE POWER TO ACT "IMMEDIATELY" AND
"INSTANTLY" TO QUELL DISORDERS IN THE CHAMBER IF IT IS TO BE ABLE TO
MAINTAIN ITS AUTHORITY AND CONTINUE WITH THE PROPER DISPATCH OF ITS
BUSINESS.  IN RE OLIVER, 333 U.S.,AT 274-275; EX PARTE TERRY, 128
U.S.,AT 308, 310; JOHNSON V. MISSISSIPPI, 403 U.S. 212, 214 (1971);
MAYBERRY V. PENNSYLVANIA, 400 U.S. 455, 463 (1971).  WHERE, HOWEVER,
THE CONTEMPTUOUS EPISODE HAS OCCURRED TWO DAYS PREVIOUSLY, IT IS MUCH
MORE DIFFICULT TO ARGUE THAT ACTION WITHOUT NOTICE OR HEARING OF ANY
KIND IS NECESSARY TO PRESERVE ORDER AND ENABLE A LEGISLATIVE BODY TO
PROCEED WITH ITS BUSINESS. 

THE FUNCTION OF THE CONTEMPT PROCESS BY A LEGISLATIVE BODY IS
PERHAPS MORE RELATED TO DETERRENCE OF THOSE DISPOSED TO CREATE
DISORDERS THAN TO RESTORING ORDER.  BUT THE DETERRENCE FUNCTION CAN
EQUALLY BE SERVED-- PERHAPS EVEN BETTER-- BY GIVING NOTICE AND BRINGING
THE CONTEMNOR BEFORE THE BODY AND GIVING OPPORTUNITY TO BE HEARD BEFORE
BEING DECLARED IN CONTEMPT AND SENTENCED.  /7/ 

WHERE A COURT ACTS IMMEDIATELY TO PUNISH FOR CONTEMPTUOUS CONDUCT
COMMITTED UNDER ITS EYE, THE CONTEMNOR IS PRESENT, OF COURSE.  THERE IS
THEN NO QUESTION OF IDENTITY, NOR IS HEARING IN A FORMAL SENSE
NECESSARY BECAUSE THE JUDGE HAS PERSONALLY SEEN THE OFFENSE AND IS
ACTING ON THE BASIS OF HIS OWN OBSERVATIONS.  /8/  MOREOVER, IN SUCH A
SITUATION, THE CONTEMNOR HAS NORMALLY BEEN GIVEN AN OPPORTUNITY TO
SPEAK IN HIS OWN BEHALF IN THE NATURE OF A RIGHT OF ALLOCUTION.  SEE
LEVINE V. UNITED STATES, 362 U.S. 610, 613-614 (1960); BROWN V. UNITED
STATES, 359 U.S. 41, 52 (1959); UNITED STATES V. SACHER, 182 F.2D 416,
418 (CA2 1950), AFF'D, 343 U.S. 1 (1952).  EVEN IN THOSE CIRCUMSTANCES,
AS WE HAVE NOTED, THE CONDUCT AND UTTERANCE MIGHT BE FOUND EXCUSABLE BY
A LEGISLATURE OR A COURT SHOULD IT DEVELOP THAT THE CONTEMNOR WAS
SUFFERING FROM SOME MENTAL DISORDER RENDERING HIM UNABLE TO CONFORM HIS
CONDUCT TO REQUIREMENTS OF THE LAW AND CONVENTIONAL BEHAVIOR.  WHERE,
HOWEVER, A LEGISLATIVE BODY ACTS TWO DAYS AFTER THE EVENT, IN THE
ABSENCE OF THE CONTEMNOR, AND WITHOUT NOTICE TO HIM, THERE IS NO
ASSURANCE THAT THE MEMBERS OF THE LEGISLATURE ARE ACTING, AS A JUDGE
DOES IN A CONTEMPT CASE, ON THE BASIS OF PERSONAL OBSERVATION AND
IDENTIFICATION OF THE CONTEMNOR ENGAGING IN THE CONDUCT CHARGED, NOR IS
THERE ANY OPPORTUNITY WHATSOEVER FOR HIM TO SPEAK IN DEFENSE OR
MITIGATION, IF HE IS IN FACT THE OFFENDER. 

EX PARTE TERRY, SUPRA, DOES NOT CONTROL THIS CASE.  THERE THE CIRCUIT
COURT ACTED PROMPTLY AFTER THE CONTEMNOR-- WHO WAS A LAWYER-- HAD
VOLUNTARILY ABSENTED HIMSELF FROM THE COURTROOM AND WHILE HE WAS
PRESENT IN AN ADJACENT ROOM OF THE COURT BUILDING.  THIS COURT
CONCLUDED THAT THE CONTEMNOR COULD NOT DEFEAT THE JURISDICTION OF THE
CIRCUIT COURT TO ACT AS SOON AS REASONABLY POSSIBLE TO PUNISH THE
CONTEMPT BY HIS VOLUNTARY DEPARTURE FROM THE COURTROOM.  128 U.S.,AT
310-311.  THE COURT REASONED THAT    "THE DEPARTURE OF THE PETITIONER
FROM THE COURTROOM TO ANOTHER ROOM, NEAR BY, IN THE SAME BUILDING, WAS
HIS VOLUNTARY ACT.  AND HIS DEPARTURE, WITHOUT MAKING SOME APOLOGY FOR,
OR EXPLANATION OF, HIS CONDUCT, MIGHT JUSTLY BE HELD TO AGGRAVATE HIS
OFFENCE, AND TO MAKE IT PLAIN THAT, CONSISTENTLY WITH THE PUBLIC
INTERESTS, THERE SHOULD BE NO DELAY, UPON THE PART OF THE COURT, IN
EXERTING ITS POWER TO PUNISH."  ID., AT 311. 

DEALING ONLY WITH THE NARROW CIRCUMSTANCES PRESENT IN TERRY, THE
COURT EXPRESSLY RESERVED THE QUESTION WHETHER THE CIRCUIT COURT WOULD
HAVE HAD THE POWER TO PROCEED ON A SUBSEQUENT DAY WITHOUT ACCORDING THE
CONTEMNOR AN OPPORTUNITY TO BE HEARD.  ID., AT 314.  BY WAY OF
CONTRAST, THE RESOLUTION IN THIS CASE WAS, AS WE HAVE NOTED, ADOPTED
TWO DAYS AFTER THE EVENT AND WHILE PETITIONER WAS BEING DETAINED IN THE
COUNTY JAIL IN THE SAME CITY, AND HENCE AVAILABLE TO BE SERVED WITH
NOTICE.  IN SACHER V. UNITED STATES, 343 U.S. 1 (1952), THE COURT
APPROVED THE TRIAL JUDGE'S ACTION IN WAITING UNTIL THE END OF A NINE
MONTH TRIAL TO SUMMARILY HOLD DEFENSE COUNSEL /9/  IN CONTEMPT FOR
BREACHES COMMITTED DURING THE TRIAL.  HOWEVER, THE COURT WAS CAREFUL TO
OBSERVE THAT AN IMMEDIATE HOLDING OF CONTEMPT DURING THE TRIAL MIGHT
HAVE PREJUDICED THE DEFENDANTS IN THE EYES OF THE JURY OR OTHERWISE
IMPEDED THEIR ADVOCACY.  MOREOVER, THE CONTEMNORS WERE PRESENT
THROUGHOUT THE COURSE OF THE TRIAL, WERE REPEATEDLY WARNED BY THE TRIAL
JUDGE THAT THEIR CONDUCT WAS CONTEMPTUOUS, WERE ADVISED THAT THEY COULD
BE CALLED TO ACCOUNT LATER, /10/  AND WERE GIVEN AN OPPORTUNITY TO
SPEAK.  /11/ 

AT A VERY EARLY STAGE IN OUR HISTORY THIS COURT STATED THAT THE
LEGISLATIVE CONTEMPT POWER SHOULD BE LIMITED TO "(THE LEAST POSSIBLE
POWER ADEQUATE TO THE END PROPOSED."  ANDERSON V. DUNN, 6 WHEAT.,AT
231; IN RE OLIVER, 333 U.S.,AT 274.  WHILE A DIFFERENT RESULT MIGHT
WELL FOLLOW HAD THE WISCONSIN ASSEMBLY ACTED IMMEDIATELY UPON
OCCURRENCE OF THE CONTEMPTUOUS CONDUCT AND WHILE THE CONTEMNOR WAS IN
THE CHAMBER, /12/  OR NEARBY WITHIN THE CAPITOL BUILDING, AS IN TERRY,
WE CONCLUDE THAT THE PROCEDURES EMPLOYED IN THIS CASE WERE BEYOND THE
LEGITIMATE SCOPE OF THAT POWER BECAUSE OF THE ABSENCE OF NOTICE OR ANY
OPPORTUNITY TO RESPOND.  THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  THE TEXT OF THE OCTOBER 1 RESOLUTION WAS AS FOLLOWS:

        "1969 SPEC. SESS. ASSEMBLY RESOLUTION 

"CITING JAMES E. GROPPI FOR CONTEMPT OF THE ASSEMBLY AND DIRECTING
HIS COMMITMENT TO THE DANE COUNTY JAIL. 

"IN THAT JAMES E. GROPPI LED A GATHERING OF PEOPLE ON SEPTEMBER 29,
1969, WHICH BY ITS PRESENCE ON THE FLOOR OF THE ASSEMBLY DURING A
MEETING OF THE 1969 REGULAR SESSION OF THE WISCONSIN LEGISLATURE IN
VIOLATION OF ASSEMBLY RULE 10 PREVENTED THE ASSEMBLY FROM CONDUCTING
PUBLIC BUSINESS AND PERFORMING ITS CONSTITUTIONAL DUTY; NOW, THEREFORE,
BE IT 

"RESOLVED BY THE ASSEMBLY, THAT THE ASSEMBLY FINDS THAT THE ABOVE
CITED ACTION BY JAMES E. GROPPI CONSTITUTED "DISORDERLY CONDUCT IN THE
IMMEDIATE VIEW OF THE HOUSE AND DIRECTLY TENDING TO INTERRUPT ITS
PROCEEDINGS" AND IS AN OFFENSE PUNISHABLE AS A CONTEMPT UNDER SECTION
13.26(1)(B) OF THE WISCONSIN STATUTES AND ARTICLE IV, SECTION 8 OF THE
WISCONSIN CONSTITUTION AND THEREFORE: 

"(1) FINDS JAMES E. GROPPI GUILTY OF CONTEMPT OF THE ASSEMBLY; AND 

"(2) IN ACCORDANCE WITH SECTION 13.26 AND 13.27 OF THE WISCONSIN
STATUTES, ORDERS THE IMPRISONMENT OF JAMES E. GROPPI FOR A PERIOD OF 6
MONTHS, OR FOR THE DURATION OF THE 1969 REGULAR SESSION, WHICHEVER IS
BRIEFER, IN THE DANE COUNTY JAIL AND DIRECTS THE SHERIFF OF DANE COUNTY
TO SEIZE SAID PERSON AND DELIVER HIM TO THE JAILER OF THE DANE COUNTY
JAIL; AND, BE IT FURTHER 

"RESOLVED, THAT THE ASSEMBLY DIRECTS THAT A COPY OF THIS RESOLUTION
BE TRANSMITTED TO THE DANE COUNTY DISTRICT ATTORNEY FOR FURTHER ACTION
BY HIM UNDER SECTION 13.27(2) OF THE WISCONSIN STATUTES; AND, BE IT
FURTHER 

"RESOLVED, THAT THE ATTORNEY GENERAL IS RESPECTFULLY REQUESTED TO
REPRESENT THE ASSEMBLY IN ANY LITIGATION ARISING HEREFROM." 

ARTICLE IV, SEC. 8, WISCONSIN CONSTITUTION PROVIDES IN PART: 

"EACH HOUSE MAY DETERMINE THE RULES OF ITS OWN PROCEEDINGS, PUNISH
FOR CONTEMPT AND DISORDERLY BEHAVIOR . . . . " 


"(1) EACH HOUSE MAY PUNISH AS A CONTEMPT, BY IMPRISONMENT, A BREACH
OF ITS PRIVILEGES OR THE PRIVILEGES OF ITS MEMBERS . . . FOR . . .

        .       .          .          . 

"(B) DISORDERLY CONDUCT IN THE IMMEDIATE VIEW OF THE HOUSE AND
DIRECTLY TENDING TO INTERRUPT ITS PROCEEDINGS. 

        .          .          .    . 

"(2) THE TERM OF IMPRISONMENT A HOUSE MAY IMPOSE UNDER THIS SECTION
SHALL NOT EXTEND BEYOND THE SAME SESSION OF THE LEGISLATURE." 

/2/  ON ORAL ARGUMENT, COUNSEL FOR PETITIONER CONCEDED THESE FACTS. 
THE PAUCITY OF THE RECORD MAY BE ATTRIBUTED TO THE FACT THAT THE
DISTRICT COURT ACTED ON THE PLEADINGS WITHOUT AN EVIDENTIARY HEARING. 

/3/  TR. OF ORAL ARG. 4, 27.  PETITIONER WAS SUBSEQUENTLY TRIED IN
COUNTY COURT ON THE DISORDERLY CONDUCT CHARGE.  HE WAS DISCHARGED BY
THE COURT AFTER THE JURY WAS UNABLE TO REACH A VERDICT. 

/4/  SEE GENERALLY 2 A.HINDS, PRECEDENTS OF THE HOUSE OF
REPRESENTATIVES, CC. 51, 52; E. EBERLING, CONGRESSIONAL INVESTIGATIONS:
A STUDY OF THE ORIGIN AND DEVELOPMENT OF THE POWER OF CONGRESS TO
INVESTIGATE AND PUNISH FOR CONTEMPT (1928). 

HINDS DISCUSSES AN ASSAULT BY ONE REPORTER ON ANOTHER ON THE FLOOR
OF THE HOUSE ON JUNE 11, 1836.  THE HOUSE DID NOT PROCEED IMMEDIATELY
TO HOLD THE PARTY IN CONTEMPT, BUT APPOINTED A SELECT COMMITTEE TO
INVESTIGATE THE MATTER.  THE CONTEMNOR APPEARED BEFORE THE COMMITTEE
AND ADMITTED HIS OFFENSE.  BEFORE IT ACTED ON THE REPORT OF THE
COMMITTEE BY PASSING A CONTEMPT RESOLUTION, THE HOUSE BROUGHT THE
CONTEMNOR BEFORE THE BAR OF THE HOUSE.  HINDS, SUPRA, AT SEC. 1630. 
HINDS ALSO DISCUSSES NUMBEROUS INSTANCES OF "DIRECT" CONTEMPTS
COMMITTED BY MEMBERS OF THE HOUSE IN WHICH THE CONTEMNOR WAS AFFORDED
AN OPPORTUNITY TO SPEAK IN HIS BEHALF.  SEE SECS. 1642-1643, 1647,
1648, 1650-1653, 1657, 1665. 

/5/  SEE M. CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES
103-105, 109-111 AND N. 47, 112-113 (1943); POTTS, POWER OF LEGISLATIVE
BODIES TO PUNISH FOR CONTEMPT, 74 U.PA.L.REV.  691, 704-705, 707, 711
712, 716, 718, 719-722, 724-725 (1926). 

/6/  IN THE LATTER CASE, A LEGISLATIVE BODY, LIKE A COURT, MIGHT
DIRECT A PSYCHIATRIC EXAMINATION.  IT CAN BE ASSUMED THAT ONE SO
DISORIENTED AS NOT TO APPRECIATE THE NATURE OF HIS ACTS WOULD NOT BE
PUNISHED FOR CONTEMPTUOUS CONDUCT. 

/7/  UNDER CIRCUMSTANCES SUCH AS THOSE IN THIS CASE, NEITHER A COURT
NOR A LEGISLATIVE BODY HAS ANY OBLIGATION TO AFFORD A CONTEMNOR A FORUM
TO EXPOUND HIS POLITICAL, ECONOMIC, OR SOCIAL VIEWS; BUT THIS DOES NOT
MEAN THAT SOME BRIEF PERIOD TO PRESENT MATTER SPECIFICALLY IN DEFENSE,
EXTENUATION, OR MITIGATION IS NOT REQUIRED. 

/8/  THE COURT HAS BEEN CAREFUL TO LIMIT STRICTLY THE EXERCISE OF
THE SUMMARY CONTEMPT POWER TO CASES IN WHICH IT WAS CLEAR THAT ALL OF
THE ELEMENTS OF MISCONDUCT WERE PERSONALLY OBSERVED BY THE JUDGE.  SEE
JOHNSON V. MISSISSIPPI, 403 U.S. 212, 214-215 (1971); IN RE OLIVER, 333
U.S. 257, 275-276 (1948). 

/9/  ONE OF THE CONTEMNORS WAS A LAYMAN WHO HAD ACTED AS HIS OWN
LAWYER. 

/10/  182 F.2D, AT 428. 

/11/  ID., AT 418.  ALTHOUGH HE IMPOSED SENTENCE BEFORE HEARING THE
CONTEMNORS, THE TRIAL JUDGE WOULD, NO DOUBT HAVE MODIFIED HIS ACTION
HAD THEIR STATEMENTS PROVED PERSUASIVE.  SEE UNITED STATES V. GALANTE,
298 F.2D 72, 76 (CA2 1962) (FRIENDLY, J., CONCURRING AND DISSENTING). 
MODIFICATION OF CONTEMPT PENALTIES IS COMMON WHERE THE CONTEMNOR
APOLOGIZES OR PRESENTS MATTER IN MITIGATION. 

/12/  THE PRESENT PRACTICE OF PARLIAMENT IS DESCRIBED IN E. MAY, THE
LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT (17TH ED. 1964) AS
FOLLOWS: 

"WHEN THE CONTEMPT IS COMMITTED IN THE ACTUAL VIEW OF EITHER HOUSE,
AS, FOR EXAMPLE, WHERE A WITNESS PREVARICATES, GIVES FALSE EVIDENCE OR
REFUSES TO ANSWER, THE HOUSE PROCEEDS AT ONCE, WITHOUT HEARING THE
OFFENDER, UNLESS BY WAY OF APOLOGY OR TO MANIFEST HIS CONTRITION, TO
PUNISH HIM FOR HIS CONTEMPT."  ID., AT 133. 

WILLIAM M. COFFEY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE ROBERT J. LERNER, JOHN D. MURRAY, AND STEVEN H. STEINGLASS. 

SVERRE O. TINGLUM, ASSISTANT ATTORNEY GENERAL OF WISCONSIN, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS ROBERT W. WARREN,
ATTORNEY GENERAL. 

MELVIN L. WULF, SANFORD J. ROSEN, AND ROBERT H. FRIEBERT FILED A
BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING
REVERSAL. 
..END :
























CALIFORNIA TRANSPORT V. TRUCKING UNLIMITED, 404 U.S. 508 


       CALIFORNIA MOTOR TRANSPORT CO. ET AL. V. TRUCKING UNLIMITED

           ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 70-92.  ARGUED NOVEMBER 10, 1971-- DECIDED JANUARY 13,

           1972 


RESPONDENT HIGHWAY CARRIERS FILED THIS CIVIL ACTION UNDER SEC. 4 OF
THE CLAYTON ACT FOR INJUNCTIVE RELIEF AND DAMAGES AGAINST PETITIONER
HIGHWAY CARRIERS CHARGING THAT PETITIONERS CONSPIRED TO MONOPOLIZE THE
TRANSPORTATION OF GOODS BY INSTITUTING STATE AND FEDERAL PROCEEDINGS OF
RESIST AND DEFEAT APPLICATIONS BY RESPONDENTS TO ACQUIRE, TRANSFER, OR
REGISTER OPERATING RIGHTS.  RESPONDENTS ALLEGED THAT THE PURPOSE OF THE
CONSPIRACY WAS "PUTTING THEIR COMPETITORS . . . OUT OF BUSINESS, OF
WEAKENING SUCH COMPETITORS, OF DESTROYING, ELIMINATING AND WEAKENING
EXISTING AND POTENTIAL COMPETITION, AND OF MONOPOLIZING THE HIGHWAY
COMMON CARRIER BUSINESS IN CALIFORNIA AND ELSEWHERE," AND DETERRING
RESPONDENTS FROM HAVING FREE AND UNLIMITED ACCESS TO THE AGENCIES AND
THE COURTS.  THE DISTRICT COURT DISMISSED THE COMPLAINT FOR FAILURE TO
STATE A CAUSE OF ACTION BUT THE COURT OF APPEALS REVERSED.  HELD:
WHILE ANY CARRIER HAS THE RIGHT OF ACCESS TO ADMINISTRATIVE AGENCIES
AND COURTS TO DEFEAT APPLICATIONS OF COMPETITORS FOR CERTIFICATES AS
HIGHWAY CARRIERS, AND ITS PURPOSE TO ELIMINATE AN APPLICANT AS A
COMPETITOR MAY BE IMPLICIT IN SUCH OPPOSITION, ITS FIRST AMENDMENT
RIGHTS ARE NOT IMMUNIZED FROM REGULATION WHEN THEY ARE USED AS AN
INTEGRAL PART OF CONDUCT VIOLATIVE OF THE ANTITRUST LAWS.  IF THE
ALLEGATIONS THAT PETITIONERS COMBINED TO HARASS AND DETER RESPONDENTS
FROM HAVING "FREE AND UNLIMITED ACCESS" TO AGENCIES AND COURTS, AND TO
DEFEAT THAT RIGHT BY MASSIVE, CONCERTED, AND PURPOSEFUL GROUP
ACTIVITIES ARE ESTABLISHED AS FACTS, A VIOLATION OF THE ANTITRUST LAWS
WILL HAVE BEEN DEMONSTRATED, AND IT IS IMMATERIAL THAT THE MEANS USED
IN VIOLATION MAY BE LAWFUL.  PP. 509-516. 

432 F.2D 755, AFFIRMED AND REMANDED FOR TRIAL. 

DOUGLAS, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER, C.J.,
AND WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  STEWART, J., FILED AN
OPINION CONCURRING IN THE JUDGMENT, IN WHICH BRENNAN, J., JOINED, POST,
P. 516.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION
OR DECISION OF THE CASE. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. CHIEF
JUSTICE BURGER. 

THIS IS A CIVIL SUIT UNDER SEC. 4 OF THE CLAYTON ACT, 38 STAT. 731,
15 U.S.C. 15, FOR INJUNCTIVE RELIEF AND DAMAGES INSTITUTED BY
RESPONDENTS, WHO ARE HIGHWAY CARRIERS OPERATING IN CALIFORNIA, AGAINST
PETITIONERS, WHO ARE ALSO HIGHWAY CARRIERS OPERATING WITHIN, INTO, AND
FROM CALIFORNIA.  RESPONDENTS AND PETITIONERS ARE, IN OTHER WORDS,
COMPETITORS.  THE CHARGE IS THAT THE PETITIONERS CONSPIRED TO
MONOPOLIZE TRADE AND COMMERCE IN THE TRANSPORTATION OF GOODS IN
VIOLATION OF THE ANTITRUST LAWS.  THE CONSPIRACY ALLEGED IS A CONCERTED
ACTION BY PETITIONERS TO INSTITUTE STATE AND FEDERAL PROCEEDINGS TO
RESIST AND DEFEAT APPLICATIONS BY RESPONDENTS TO ACQUIRE OPERATING
RIGHTS OR TO TRANSFER OR REGISTER THOSE RIGHTS.  THESE ACTIVITIES, IT
IS ALLEGED, EXTEND TO REHEARINGS AND TO REVIEWS OR APPEALS FROM AGENCY
OR COURT DECISIONS ON THESE MATTERS. 

THE DISTRICT COURT DISMISSED THE COMPLAINT FOR FAILURE TO STATE A
CAUSE OF ACTION, 1967 TRADE CAS. PARA. 72,298.  THE COURT OF APPEALS
REVERSED, 432 F.2D 755.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI, WHICH WE GRANTED.  402 U.S. 1008. 

THE PRESENT CASE IS AKIN TO EASTERN RAILROAD CONFERENCE V. NOERR
MOTOR FREIGHT, 365 U.S. 127, WHERE A GROUP OF TRUCKING COMPANIES SUED A
GROUP OF RAILROADS TO RESTRAIN THEM FROM AN ALLEGED CONSPIRACY TO
MONOPOLIZE THE LONG-DISTANCE FREIGHT BUSINESS IN VIOLATION OF THE
ANTITRUST LAWS AND TO OBTAIN DAMAGES.  WE HELD THAT NO CAUSE OF ACTION
WAS ALLEGED INSOFAR AS IT WAS PREDICATED UPON MERE ATTEMPTS TO
INFLUENCE THE LEGISLATIVE BRANCH FOR THE PASSAGE OF LAWS OR THE
EXECUTIVE BRANCH FOR THEIR ENFORCEMENT.  WE RESTED OUR DECISION ON TWO
GROUNDS: 

     (1) "IN A REPRESENTATIVE DEMOCRACY SUCH AS THIS, THESE
BRANCHES

  OF GOVERNMENT ACT ON BEHALF OF THE PEOPLE AND, TO A VERY LARGE

  EXTENT, THE WHOLE CONCEPT OF REPRESENTATION DEPENDS UPON THE

  ABILITY OF THE PEOPLE TO MAKE THEIR WISHES KNOWN TO THEIR

  REPRESENTATIVES.  TO HOLD THAT THE GOVERNMENT RETAINS THE POWER

  TO ACT IN THIS REPRESENTATIVE CAPACITY AND YET HOLD, AT THE SAME

  TIME, THAT THE PEOPLE CANNOT FREELY INFORM THE GOVERNMENT OF

  THEIR WISHES WOULD IMPUTE TO THE SHERMAN ACT A PURPOSE TO

  REGULATE, NOT BUSINESS ACTIVITY, BUT POLITICAL ACTIVITY, A

  PURPOSE WHICH WOULD HAVE NO BASIS WHATEVER IN THE LEGISLATIVE

  HISTORY OF THAT ACT."  ID., AT 137. 

     (2) "THE RIGHT OF PETITION IS ONE OF THE FREEDOMS PROTECTED BY

  THE BILL OF RIGHTS, AND WE CANNOT, OF COURSE, LIGHTLY IMPUTE TO

  CONGRESS AN INTENT TO INVADE THESE FREEDOMS."  ID., AT 138. 

WE FOLLOWED THAT VIEW IN UNITED MINE WORKERS V. PENNINGTON, 381 U.S.
657, 669-671. 

THE SAME PHILOSOPHY GOVERNS THE APPROACH OF CITIZENS OR GROUPS OF
THEM TO ADMINISTRATIVE AGENCIES (WHICH ARE BOTH CREATURES OF THE
LEGISLATURE, AND ARMS OF THE EXECUTIVE) AND TO COURTS, THE THIRD BRANCH
OF GOVERNMENT.  CERTAINLY THE RIGHT TO PETITION EXTENDS TO ALL
DEPARTMENTS OF THE GOVERNMENT.  THE RIGHT OF ACCESS TO THE COURTS IS
INDEED BUT ONE ASPECT OF THE RIGHT OF PETITION.  SEE JOHNSON V. AVERY,
393 U.S. 483, 485; EX PARTE HULL, 312 U.S. 546, 549. 

WE CONCLUDE THAT IT WOULD BE DESTRUCTIVE OF RIGHTS OF ASSOCIATION
AND OF PETITION TO HOLD THAT GROUPS WITH COMMON INTERESTS MAY NOT,
WITHOUT VIOLATING THE ANTITRUST LAWS, USE THE CHANNELS AND PROCEDURES
OF STATE AND FEDERAL AGENCIES AND COURTS TO ADVOCATE THEIR CAUSES AND
POINTS OF VIEW RESPECTING RESOLUTION OF THEIR BUSINESS AND ECONOMIC
INTERESTS VIS-A-VIS THEIR COMPETITORS. 

WE SAID, HOWEVER, IN NOERR THAT THERE MAY BE INSTANCES WHERE THE
ALLEGED CONSPIRACY "IS A MERE SHAM TO COVER WHAT IS ACTUALLY NOTHING
MORE THAN AN ATTEMPT TO INTERFERE DIRECTLY WITH THE BUSINESS
RELATIONSHIPS OF A COMPETITOR AND THE APPLICATION OF THE SHERMAN ACT
WOULD BE JUSTIFIED."  365 U.S.,AT 144. 

IN THAT CONNECTION THE COMPLAINT IN THE PRESENT CASE ALLEGED THAT
THE AIM AND PURPOSE OF THE CONSPIRACY WAS "PUTTING THEIR COMPETITORS,
INCLUDING PLAINTIFF, OUT OF BUSINESS, OF WEAKENING SUCH COMPETITORS, OF
DESTROYING, ELIMINATING AND WEAKENING EXISTING AND POTENTIAL
COMPETITION, AND OF MONOPOLIZING THE HIGHWAY COMMON CARRIAGE BUSINESS
IN CALIFORNIA AND ELSEWHERE." 

MORE CRITICAL ARE OTHER ALLEGATIONS, WHICH ARE TOO LENGTHY TO QUOTE,
AND WHICH ELABORATE ON THE "SHAM" THEORY BY STATING THAT THE POWER,
STRATEGY, AND RESOURCES OF THE PETITIONERS WERE USED TO HARASS AND
DETER RESPONDENTS IN THEIR USE OF ADMINISTRATIVE AND JUDICIAL
PROCEEDINGS SO AS TO DENY THEM "FREE AND UNLIMITED ACCESS" TO THOSE
TRIBUNALS.  THE RESULT, IT IS ALLEGED, WAS THAT THE MACHINERY OF THE
AGENCIES AND THE COURTS WAS EFFECTIVELY CLOSED TO RESPONDENTS, AND
PETITIONERS INDEED BECAME "THE REGULATORS OF THE GRANTS OF RIGHTS,
TRANSFERS AND REGISTRATIONS" TO RESPONDENTS-- THEREBY DEPLETING AND
DIMINISHING THE VALUE OF THE BUSINESSES OF RESPONDENTS AND AGGRANDIZING
PETITIONERS' ECONOMIC AND MONOPOLY POWER.  SEE NOTE, 57 CALIF.L.REV. 
518 (1969). 

PETITIONERS RELY ON OUR STATEMENT IN PENNINGTON THAT "NOERR SHIELDS
FROM THE SHERMAN ACT A CONCERTED EFFORT TO INFLUENCE PUBLIC OFFICIALS
REGARDLESS OF INTENT OR PURPOSE."  381 U.S.,AT 670.  IN THE PRESENT
CASE, HOWEVER, THE ALLEGATIONS ARE NOT THAT THE CONSPIRATORS SOUGHT "TO
INFLUENCE PUBLIC OFFICIALS," BUT THAT THEY SOUGHT TO BAR THEIR
COMPETITORS FROM MEANINGFUL ACCESS TO ADJUDICATORY TRIBUNALS AND SO TO
USURP THAT DECISIONMAKING PROCESS.  IT IS ALLEGED THAT PETITIONERS
"INSTITUTED THE PROCEEDINGS AND ACTIONS . . . WITH OR WITHOUT PROBABLE
CAUSE, AND REGARDLESS OF THE MERITS OF THE CASES."  THE NATURE OF THE
VIEWS PRESSED DOES NOT, OF COURSE, DETERMINE WHETHER FIRST AMENDMENT
RIGHTS MAY BE INVOKED; BUT THEY MAY BEAR UPON A PURPOSE TO DEPRIVE THE
COMPETITORS OF MEANINGFUL ACCESS TO THE AGENCIES AND COURTS.  AS STATED
IN THE OPINION CONCURRING IN THE JUDGMENT, SUCH A PURPOSE OR INTENT, IF
SHOWN, WOULD BE "TO DISCOURAGE AND ULTIMATELY TO PREVENT THE
RESPONDENTS FROM INVOKING" THE PROCESSES OF THE ADMINISTRATIVE AGENCIES
AND COURTS AND THUS FALL WITHIN THE EXCEPTION TO NOERR. 

THE POLITICAL CAMPAIGN OPERATED BY THE RAILROADS IN NOERR TO OBTAIN
LEGISLATION CRIPPLING TRUCKERS EMPLOYED DECEPTION AND MISREPRESENTATION
AND UNETHICAL TACTICS.  WE SAID: 

"CONGRESS HAS TRADITIONALLY EXERCISED EXTREME CAUTION IN LEGISLATING
WITH RESPECT TO PROBLEMS RELATING TO THE CONDUCT OF POLITICAL
ACTIVITIES, A CAUTION WHICH HAS BEEN REFLECTED IN THE DECISIONS OF THIS
COURT INTERPRETING SUCH LEGISLATION.  ALL OF THIS CAUTION WOULD GO FOR
NAUGHT IF WE PERMITTED AN EXTENSION OF THE SHERMAN ACT TO REGULATE
ACTIVITIES OF THAT NATURE SIMPLY BECAUSE THOSE ACTIVITIES HAVE A
COMMERCIAL IMPACT AND INVOLVE CONDUCT THAT CAN BE TERMED UNETHICAL." 
365 U.S.,AT 141. 

YET UNETHICAL CONDUCT IN THE SETTING OF THE ADJUDICATORY PROCESS
OFTEN RESULTS IN SANCTIONS.  PERJURY OF WITNESSES IS ONE EXAMPLE.  USE
OF A PATENT OBTAINED BY FRAUD TO EXCLUDE A COMPETITOR FROM THE MARKET
MAY INVOLVE A VIOLATION OF THE ANTITRUST LAWS, AS WE HELD IN WALKER
PROCESS EQUIPMENT V. FOOD MACHINERY & CHEMICAL CORP., 382 U.S. 172, 175
177.  CONSPIRACY WITH A LICENSING AUTHORITY TO ELIMINATE A COMPETITOR
MAY ALSO RESULT IN AN ANTITRUST TRANSGRESSION.  CONTINENTAL ORE CO. V.
UNION CARBIDE & CARBON CORP., 370 U.S. 690, 707; HARMAN V. VALLEY
NATIONAL BANK, 339 F.2D 564 (CA9 1964).  SIMILARLY, BRIBERY OF A PUBLIC
PURCHASING AGENT MAY CONSTITUTE A VIOLATION OF SEC. 2(C) OF THE CLAYTON
ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT.  RANGEN, INC. V. STERLING
NELSON & SONS, 351 F.2D 851 (CA9 1965). 

THERE ARE MANY OTHER FORMS OF ILLEGAL AND REPREHENSIBLE PRACTICE
WHICH MAY CORRUPT THE ADMINISTRATIVE OR JUDICIAL PROCESSES AND WHICH
MAY RESULT IN ANTITRUST VIOLATIONS.  MISREPRESENTATIONS, CONDONED IN
THE POLITICAL ARENA, ARE NOT IMMUNIZED WHEN USED IN THE ADJUDICATORY
PROCESS.  OPPONENTS BEFORE AGENCIES OR COURTS OFTEN THINK POORLY OF THE
OTHER'S TACTICS, MOTIONS, OR DEFENSES AND MAY READILY CALL THEM
BASELESS.  ONE CLAIM, WHICH A COURT OR AGENCY MAY THINK BASELESS, MAY
GO UNNOTICED; BUT A PATTERN OF BASELESS, REPETITIVE CLAIMS MAY EMERGE
WHICH LEADS THE FACTFINDER TO CONCLUDE THAT THE ADMINISTRATIVE AND
JUDICIAL PROCESSES HAVE BEEN ABUSED.  THAT MAY BE A DIFFICULT LINE TO
DISCERN AND DRAW.  BUT ONCE IT IS DRAWN, THE CASE IS ESTABLISHED THAT
ABUSE OF THOSE PROCESSES PRODUCED AN ILLEGAL RESULT, VIZ., EFFECTIVELY
BARRING RESPONDENTS FROM ACCESS TO THE AGENCIES AND COURTS.  INSOFAR AS
THE ADMINISTRATIVE OR JUDICIAL PROCESSES ARE INVOLVED, ACTIONS OF THAT
KIND CANNOT ACQUIRE IMMUNITY BY SEEKING REFUGE UNDER THE UMBRELLA OF
"POLITICAL EXPRESSION." 

PETITIONERS, OF COURSE, HAVE THE RIGHT OF ACCESS TO THE AGENCIES AND
COURTS TO BE HEARD ON APPLICATIONS SOUGHT BY COMPETITIVE HIGHWAY
CARRIERS.  THAT RIGHT, AS INDICATED, IS PART OF THE RIGHT OF PETITION
PROTECTED BY THE FIRST AMENDMENT.  YET THAT DOES NOT NECESSARILY GIVE
THEM IMMUNITY FROM THE ANTITRUST LAWS. 

IT IS WELL SETTLED THAT FIRST AMENDMENT RIGHTS ARE NOT IMMUNIZED
FROM REGULATION WHEN THEY ARE USED AS AN INTEGRAL PART OF CONDUCT WHICH
VIOLATES A VALID STATUTE.  GIBONEY V. EMPIRE STORAGE CO., 336 U.S.
490.  IN THAT CASE MISSOURI ENACTED A STATUTE BANNING SECONDARY
BOYCOTTS AND WE SUSTAINED AN INJUNCTION AGAINST PICKETING TO ENFORCE
THE BOYCOTT, SAYING: 

"IT IS TRUE THAT THE AGREEMENTS AND COURSE OF CONDUCT HERE WERE AS
IN MOST INSTANCES BROUGHT ABOUT THROUGH SPEAKING OR WRITING.  BUT IT
HAS NEVER BEEN DEEMED AN ABRIDGMENT OF FREEDOM OF SPEECH OR PRESS TO
MAKE A COURSE OF CONDUCT ILLEGAL MERELY BECAUSE THE CONDUCT WAS IN PART
INITIATED, EVIDENCED, OR CARRIED OUT BY MEANS OF LANGUAGE, EITHER
SPOKEN, WRITTEN, PRINTED.  . . . SUCH AN EXPANSIVE INTERPRETATION OF
THE CONSTITUTIONAL GUARANTIES OF SPEECH AND PRESS WOULD MAKE IT
PRACTICALLY IMPOSSIBLE EVER TO ENFORCE LAWS AGAINST AGREEMENTS IN
RESTRAINT OF TRADE AS WELL AS MANY OTHER AGREEMENTS AND CONSPIRACIES
DEEMED INJURIOUS TO SOCIETY."  336 U.S.,AT 502. 

IN ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, WE HELD THAT THE
ASSOCIATED PRESS WAS NOT IMMUNE FROM THE ANTITRUST LAWS BY REASON OF
THE FACT THAT THE PRESS IS UNDER THE SHELTER OF THE FIRST AMENDMENT. 
WE SAID: 

"SURELY A COMMAND THAT THE GOVERNMENT ITSELF SHALL NOT IMPEDE THE
FREE FLOW OF IDEAS DOES NOT AFFORD NON-GOVERNMENTAL COMBINATIONS A
REFUGE IF THEY IMPOSE RESTRAINTS UPON THAT CONSTITUTIONALLY GUARANTEED
FREEDOM.  FREEDOM TO PUBLISH MEANS FREEDOM FOR ALL AND NOT FOR SOME. 
FREEDOM TO PUBLISH IS GUARANTEED BY CONSTITUTION, BUT FREEDOM TO
COMBINE TO KEEP OTHERS FROM PUBLISHING IS NOT.  FREEDOM OF THE PRESS
FROM GOVERNMENTAL INTERFERENCE UNDER THE FIRST AMENDMENT DOES NOT
SANCTION REPRESSION OF THAT FREEDOM BY PRIVATE INTERESTS."  ID., AT
20. 

ACCORD, CITIZEN PUBLISHING CO. V. UNITED STATES, 394 U.S. 131, 139
140.  CF. EASTERN STATES LUMBER ASSN. V. UNITED STATES, 234 U.S. 600. 

THE RATIONALE OF THOSE CASES, WHEN APPLIED TO THE INSTANT
CONTROVERSY, MAKES THE FOLLOWING CONCLUSIONS CLEAR:  (1) THAT ANY
CARRIER HAS THE RIGHT OF ACCESS OF AGENCIES AND COURTS, WITHIN THE
LIMITS, OF COURSE, OF THEIR PRESCRIBED PROCEDURES, IN ORDER TO DEFEAT
APPLICATIONS OF ITS COMPETITORS FOR CERTIFICATES AS HIGHWAY CARRIERS;
AND (2) THAT ITS PURPOSE TO ELIMINATE AN APPLICANT AS A COMPETITOR BY
DENYING HIM FREE AND MEANINGFUL ACCESS TO THE AGENCIES AND COURTS MAY
BE IMPLICIT IN THAT OPPOSITION. 

FIRST AMENDMENT RIGHTS MAY NOT BE USED AS THE MEANS OR THE PRETEXT
FOR ACHIEVING "SUBSTANTIVE EVILS" (SEE NAACP V. BUTTON, 371 U.S. 415,
444) WHICH THE LEGISLATURE HAS THE POWER TO CONTROL.  CERTAINLY THE
CONSTITUTIONALITY OF THE ANTITRUST LAWS IS NOT OPEN TO DEBATE.  A
COMBINATION OF ENTREPRENEURS TO HARASS AND DETER THEIR COMPETITORS FROM
HAVING "FREE AND UNLIMITED ACCESS" TO THE AGENCIES AND COURTS, TO
DEFEAT THAT RIGHT BY MASSIVE, CONCERTED, AND PURPOSEFUL ACTIVITIES OF
THE GROUP ARE WAYS OF BUILDING UP ONE EMPIRE AND DESTROYING ANOTHER. 
AS STATED IN THE OPINION CONCURRING IN THE JUDGMENT, THAT IS THE
ESSENCE OF THOSE PARTS OF THE COMPLAINT TO WHICH WE REFER.  IF THESE
FACTS ARE PROVED, A VIOLATION OF THE ANTITRUST LAWS HAS BEEN
ESTABLISHED.  IF THE END RESULT IS UNLAWFUL, IT MATTERS NOT THAT THE
MEANS USED IN VIOLATION MAY BE LAWFUL. 

WHAT THE PROOF WILL SHOW IS NOT KNOWN, FOR THE DISTRICT COURT
GRANTED THE MOTION TO DISMISS THE COMPLAINT.  WE MUST, OF COURSE, TAKE
THE ALLEGATIONS OF THE COMPLAINT AT FACE VALUE FOR THE PURPOSES OF THAT
MOTION.  WALKER PROCESS EQUIPMENT V. FOOD MACHINERY & CHEMICAL CORP.,
382 U.S.,AT 174-175.  ON THEIR FACE THE ABOVE-QUOTED ALLEGATIONS COME
WITHIN THE "SHAM"  EXCEPTION IN THE NOERR CASE, AS ADAPTED TO THE
ADJUDICATORY PROCESS. 

ACCORDINGLY WE AFFIRM THE COURT OF APPEALS AND REMAND THE CASE FOR
TRIAL. 

              SO ORDERED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN JOINS, CONCURRING
IN THE JUDGMENT. 

IN THE NOERR CASE /1/  THIS COURT HELD, IN A UNANIMOUS OPINION
WRITTEN BY MR. JUSTICE BLACK, THAT A CONSPIRACY BY RAILROADS TO
INFLUENCE LEGISLATIVE AND EXECUTIVE ACTION IN ORDER TO DESTROY THE
COMPETITION OF TRUCKERS IN THE LONG-HAUL FREIGHT BUSINESS WAS WHOLLY
IMMUNE FROM THE ANTITRUST LAWS.  /2/  THIS CONCLUSION, WE HELD, WAS
REQUIRED IN ORDER TO PRESERVE THE INFORMED OPERATION OF GOVERNMENTAL
PROCESSES AND TO PROTECT THE RIGHT OF PETITION GUARANTEED BY THE FIRST
AMENDMENT.  /3/  TODAY THE COURT RETREATS FROM NOERR, AND IN THE
PROCESS TRAMPLES UPON IMPORTANT FIRST AMENDMENT VALUES.  FOR THAT
REASON I CANNOT JOIN THE COURT'S OPINION.     IN NOERR THE DEFENDANTS
WERE JOINED TOGETHER IN AN EFFORT TO INDUCE LEGISLATIVE AND EXECUTIVE
ACTION.  HERE, SO THE COMPLAINT ALLEGES, THE DEFENDANTS (PETITIONERS)
HAVE JOINED TO INDUCE ADMINISTRATIVE AND JUDICIAL ACTION.  THE
DIFFERENCE IN TYPE OF GOVERNMENTAL BODY MIGHT MAKE A DIFFERENCE IN THE
APPLICABILITY OF THE ANTITRUST LAWS IF THE PETITIONERS HAD MADE
MISREPRESENTATIONS OF FACT OR LAW TO THESE TRIBUNALS, OR HAD ENGAGED IN
PERJURY, OR FRAUD, OR BRIBERY.  /4/  BUT, CONTRARY TO IMPLICATIONS IN
THE COURT'S OPINION, THERE ARE IN THIS CASE NO ALLEGATIONS WHATEVER OF
ANY SUCH CONDUCT ON THE PART OF THE PETITIONERS.  AND, IN THE ABSENCE
OF SUCH CONDUCT, I CAN SEE NO DIFFERENCE, SO FAR AS THE ANTITRUST LAWS
AND THE FIRST AMENDMENT ARE CONCERNED, BETWEEN TRYING TO INFLUENCE
EXECUTIVE AND LEGISLATIVE BODIES AND TRYING TO INFLUENCE ADMINISTRATIVE
AND JUDICIAL BODIES.  NAACP V. BUTTON, 371 U.S. 415; BROTHERHOOD OF
RAILROAD TRAINMEN V. VIRGINIA BAR, 377 U.S. 1; UNITED MINE WORKERS V.
ILLINOIS STATE BAR ASSN., 389 U.S. 217; UNITED TRANSPORTATION UNION V.
STATE BAR OF MICHIGAN, 401 U.S. 576. 

THE COURT CONCEDES THAT THE PETITIONERS'"RIGHT OF ACCESS TO THE
AGENCIES AND COURTS TO BE HEARD ON APPLICATIONS SOUGHT BY COMPETITIVE
HIGHWAY CARRIERS . . . IS PART OF THE RIGHT OF PETITION PROTECTED BY
THE FIRST AMENDMENT."  YET, SAYS THE COURT, THEIR JOINT AGREEMENT TO
EXERCISE THAT RIGHT "DOES NOT NECESSARILY GIVE THEM IMMUNITY FROM THE
ANTITRUST LAWS."  ANTE, AT 513.  IT IS DIFFICULT TO IMAGINE A STATEMENT
MORE TOTALLY AT ODDS WITH NOERR.  FOR WHAT THAT CASE EXPLICITLY HELD IS
THAT THE JOINT EXERCISE OF THE CONSTITUTIONAL RIGHT OF PETITION IS
GIVEN IMMUNITY FROM THE ANTITRUST LAWS. 

WHILE DISAGREEING WITH THE COURT'S OPINION, I WOULD NONETHELESS
REMAND THIS CASE TO THE DISTRICT COURT FOR TRIAL.  THE COMPLAINT
CONTAINS ALLEGATIONS THAT THE PETITIONERS HAVE: 

  1.  AGREED JOINTLY TO FINANCE AND TO CARRY OUT AND PUBLICIZE A

  CONSISTENT, SYSTEMATIC AND UNINTERRUPTED PROGRAM OF OPPOSING

  'WITH OR WITHOUT PROBABLE CAUSE AND REGARDLESS OF THE MERITS'

  EVERY APPLICATION, WITH INSIGNIFICANT EXCEPTIONS, FOR ADDITIONAL

  OPERATING RIGHTS OR FOR THE REGISTRATION OR TRANSFER OF OPERATING

  RIGHTS, BEFORE THE CALIFORNIA PUC, THE ICC, AND THE COURTS ON

  APPEAL. 

  2.  CARRIED OUT SUCH AGREEMENT (A) BY APPEARING AS PROTESTANTS

  IN ALL PROCEEDINGS INSTITUTED BY PLAINTIFFS AND OTHERS IN LIKE

  POSITION OR BY INSTITUTING COMPLAINTS IN OPPOSITION TO

  APPLICATIONS OR TRANSFERS OR REGISTRATIONS; (B) BY ESTABLISHING A

  TRUST FUND TO FINANCE THE FOREGOING, CONSISTING OF CONTRIBUTIONS

  MONTHLY IN AMOUNTS PROPORTIONATE TO EACH DEFENDANT'S ANNUAL GROSS

  INCOME; (C) BY PUBLICIZING AND MAKING KNOWN TO PLAINTIFFS AND

  OTHERS IN LIKE POSITION THE FOREGOING PROGRAM. 

UNDER THESE ALLEGATIONS, LIBERALLY CONSTRUED, THE RESPONDENTS ARE
ENTITLED TO PROVE THAT THE REAL INTENT OF THE CONSPIRATORS WAS NOT TO
INVOKE THE PROCESSES OF THE ADMINISTRATIVE AGENCIES AND COURTS, BUT TO
DISCOURAGE AND ULTIMATELY TO PREVENT THE RESPONDENTS FROM INVOKING
THOSE PROCESSES.  SUCH AN INTENT WOULD MAKE THE CONSPIRACY "AN ATTEMPT
TO INTERFERE DIRECTLY WITH THE BUSINESS RELATIONSHIPS OF A COMPETITOR
AND THE APPLICATION OF THE SHERMAN ACT WOULD BE JUSTIFIED."  EASTERN
RAILROAD CONFERENCE V. NOERR MOTOR FREIGHT, 365 U.S.,AT 144. 

IT IS ONLY ON THIS BASIS THAT I CONCUR IN THE JUDGMENT OF THE
COURT. 

/1/  EASTERN RAILROAD CONFERENCE V. NOERR MOTOR FREIGHT, 365 U.S.
127. 

/2/  SEE ALSO UNITED MINE WORKERS V. PENNINGTON, 381 U.S. 657, 669
671. 

/3/  THIS CONCLUSION, THE COURT HELD, WAS A COROLLARY OF OUR DECISIONS
IN UNITED STATES V. ROCK ROYAL CO-OPERATIVE, 307 U.S. 533, AND PARKER
V. BROWN, 317 U.S. 341, HOLDING THAT WHEN A MONOPOLY OR RESTRAINT OF
TRADE IS THE RESULT OF VALID GOVERNMENTAL ACTION, THERE CANNOT BE AN
ANTITRUST VIOLATION. 

/4/  IN NOERR, THE COURT EMPHASIZED THAT THE DEFENDANTS'"UNETHICAL"
CONDUCT DID NOT AFFECT THEIR ANTITRUST IMMUNITY FOR JOINTLY EXERTING
PRESSURE ON THE LEGISLATIVE AND EXECUTIVE BRANCHES, 365 U.S.,AT 141. 
SEE, HOWEVER, WALKER PROCESS EQUIPMENT V. FOOD MACHINERY & CHEMICAL
CORP., 382 U.S. 172. 

BORIS H. LAKUSTA ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE W. D. BENSON, JOHN MACDONALD SMITH, AND DANIEL H. BENSON. 

MICHAEL N. KHOURIE ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 

DENNIS N. GARVEY FILED A BRIEF FOR LANDMARKS HOLDING CORP., ET AL.
AS AMICI CURIAE. 
..END :


















HAINES V. KERNER, 404 U.S. 519 


       HAINES V. KERNER ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 70-5025.  ARGUED DECEMBER 6, 1971-- DECIDED JANUARY 13,

           1972 


PRISONER'S PRO SE COMPLAINT SEEKING TO RECOVER DAMAGES FOR CLAIMED
PHYSICAL INJURIES AND DEPRIVATION OF RIGHTS IN IMPOSING DISCIPLINARY
CONFINEMENT SHOULD NOT HAVE BEEN DISMISSED WITHOUT AFFORDING HIM THE
OPPORTUNITY TO PRESENT EVIDENCE ON HIS CLAIMS. 

427 F.2D 71, REVERSED AND REMANDED. 

PER CURIAM. 

PETITIONER, AN INMATE AT THE ILLINOIS STATE PENITENTIARY, MENARD,
ILLINOIS, COMMENCED THIS ACTION AGAINST THE GOVERNOR OF ILLINOIS AND
OTHER STATE OFFICERS AND PRISON OFFICIALS UNDER THE CIVIL RIGHTS ACT OF
1871, 17 STAT. 13, 42 U.S.C. 1983, AND 28 U.S.C. 1343(3), SEEKING TO
RECOVER DAMAGES FOR CLAIMED INJURIES AND DEPRIVATION OF RIGHTS WHILE
INCARCERATED UNDER A JUDGMENT NOT CHALLENGED HERE.  PETITIONER'S PRO SE
COMPLAINT WAS PREMISED ON ALLEGED ACTION OF PRISON OFFICIALS PLACING
HIM IN SOLITARY CONFINEMENT AS A DISCIPLINARY MEASURE AFTER HE HAD
STRUCK ANOTHER INMATE ON THE HEAD WITH A SHOVEL FOLLOWING A VERBAL
ALTERCATION.  THE ASSAULT BY PETITIONER ON ANOTHER INMATE IS NOT
DENIED.  PETITIONER'S PRO SE COMPLAINT INCLUDED GENERAL ALLEGATIONS OF
PHYSICAL INJURIES SUFFERED WHILE IN DISCIPLINARY CONFINEMENT AND DENIAL
OF DUE PROCESS IN THE STEPS LEADING TO THAT CONFINEMENT.  THE CLAIMED
PHYSICAL SUFFERING WAS AGGRAVATION OF A PRE-EXISTING FOOT INJURY AND A
CIRCULATORY AILMENT CAUSED BY FORCING HIM TO SLEEP ON THE FLOOR OF HIS
CELL WITH ONLY BLANKETS. 

THE DISTRICT COURT GRANTED RESPONDENTS' MOTION UNDER RULE 12(B)(6)
OF THE FEDERAL RULES OF CIVIL PROCEDURE TO DISMISS THE COMPLAINT FOR
FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED, SUGGESTING
THAT ONLY UNDER EXCEPTIONAL CIRCUMSTANCES SHOULD COURTS INQUIRE INTO
THE INTERNAL OPERATIONS OF STATE PENITENTIARIES AND CONCLUDING THAT
PETITIONER HAD FAILED TO SHOW A DEPRIVATION OF FEDERALLY PROTECTED
RIGHTS.  THE COURT OF APPEALS AFFIRMED, EMPHASIZING THAT PRISON
OFFICIALS ARE VESTED WITH "WIDE DISCRETION" IN DISCIPLINARY MATTERS. 
WE GRANTED CERTIORARI AND APPOINTED COUNSEL TO REPRESENT PETITIONER. 
THE ONLY ISSUE NOW BEFORE US IS PETITIONER'S CONTENTION THAT THE
DISTRICT COURT ERRED IN DISMISSING HIS PRO SE COMPLAINT WITHOUT
ALLOWING HIM TO PRESENT EVIDENCE ON HIS CLAIMS. 

WHATEVER MAY BE THE LIMITS ON THE SCOPE OF INQUIRY OF COURTS INTO
THE INTERNAL ADMINISTRATION OF PRISONS, ALLEGATIONS SUCH AS THOSE
ASSERTED BY PETITIONER, HOWEVER INARTFULLY PLEADED, ARE SUFFICIENT TO
CALL FOR THE OPPORTUNITY TO OFFER SUPPORTING EVIDENCE.  WE CANNOT SAY
WITH ASSURANCE THAT UNDER THE ALLEGATIONS OF THE PRO SE COMPLAINT,
WHICH WE HOLD TO LESS STRINGENT STANDARDS THAN FORMAL PLEADINGS DRAFTED
BY LAWYERS, IT APPEARS "BEYOND DOUBT THAT THE PLAINTIFF CAN PROVE NO
SET OF FACTS IN SUPPORT OF HIS CLAIM WHICH WOULD ENTITLE HIM TO
RELIEF."  CONLEY V. GIBSON, 355 U.S. 41, 45-46 (1957).  SEE DIOGUARDI
V. DURNING, 139 F.2D 774 (CA2 1944). 

ACCORDINGLY, ALTHOUGH WE INTIMATE NO VIEW WHATEVER ON THE MERITS OF
PETITIONER'S ALLEGATIONS, WE CONCLUDE THAT HE IS ENTITLED TO AN
OPPORTUNITY TO OFFER PROOF.  THE JUDGMENT IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH. 

              REVERSED AND REMANDED. 

STANLEY A. BASS, BY APPOINTMENT OF THE COURT, 401 U.S. 1008, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE JACK GREENBERG,
JAMES M. NABRIT III, WILLIAM B. TURNER, ALICE DANIEL, AND MAX STERN. 

WARREN K. SMOOT, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED THE
CAUSE FOR RESPONDENTS PRO HAC VICE.  WITH HIM ON THE BRIEF WERE WILLIAM
J. SCOTT, ATTORNEY GENERAL, JOEL M. FLAUM, FIRST ASSISTANT ATTORNEY
GENERAL, AND JAMES B. ZAGEL, MORTON E. FRIEDMAN, AND JAYNE A. CARR,
ASSISTANT ATTORNEYS GENERAL. 

BRIEFS OF AMICI CURIAE WERE FILED BY CHARLES H. BARON FOR BOSTON
COLLEGE CENTER FOR CORRECTIONS AND THE LAW, AND BY JULIAN TEPPER AND
MARSHALL J. HARTMAN FOR THE NATIONAL LAW OFFICE OF THE NATIONAL LEGAL
AID AND DEFENDER ASSN.
..END :












FPC V. FLORIDA POWER & LIGHT CO., 404 U.S. 453 


       FEDERAL POWER COMMISSION V. FLORIDA POWER & LIGHT CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 70-38.  ARGUED NOVEMBER 15, 1971-- DECIDED JANUARY 12,

1972 


THE FEDERAL POWER COMMISSION (FPC) PROPERLY DETERMINED THAT THE
TRANSFER OF POWER FROM FLORIDA POWER & LIGHT CO. (FP&L) TO ANOTHER
FLORIDA UTILITY'S "BUS" (A TRANSMISSION LINE INTO WHICH SUBSIDIARY
LINES CONNECT) AND THE SIMULTANEOUS TRANSFER OF POWER FROM THE
UTILITY'S "BUS" TO A GEORGIA COMPANY GAVE THE FPC JURISDICTION OVER
FP&L UNDER SEC. 201(B) OF THE FEDERAL POWER ACT, WHICH GRANTS
JURISDICTION TO THE FPC OVER "THE TRANSMISSION OF ELECTRIC ENERGY IN
INTERSTATE COMMERCE . . . AND THE SALE OF ELECTRIC ENERGY AT WHOLESALE
IN INTERSTATE COMMERCE, BUT . . . NOT (OVER) ANY OTHER SALE OF ELECTRIC
ENERGY."  THE FPC'S CONCLUSION THAT FP&L ENERGY WAS COMMINGLED WITH
THAT OF THE OTHER FLORIDA UTILITY, AND THUS WAS TRANSMITTED IN
INTERSTATE COMMERCE, WAS SUBSTANTIALLY SUPPORTED BY EXPERT OPINION THAT
IS IN ACCORD WITH THE KNOWN FACTS OF ELECTRICITY, AND IS SUFFICIENT TO
SUPPORT ITS JURISDICTION.  PP. 454-469. 

430 F.2D 1377, REVERSED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED A DISSENTING
OPINION, IN WHICH BURGER, C.J., JOINED, POST, P. 469.  STEWART, POWELL,
AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO DETERMINE WHETHER THE FEDERAL POWER COMMISSION
EXCEEDED ITS STATUTORY AUTHORIZATION WHEN IT ASSERTED JURISDICTION OVER
THE FLORIDA POWER & LIGHT CO. SECTION 201(B) OF THE FEDERAL POWER ACT,
AS AMENDED, 49 STAT. 847, 16 U.S.C. 824(B), GRANTS THE FEDERAL POWER
COMMISSION JURISDICTION OVER "THE TRANSMISSION OF ELECTRIC ENERGY IN
INTERSTATE COMMERCE AND . . . THE SALE OF ELECTRIC ENERGY AT WHOLESALE
IN INTERSTATE COMMERCE, BUT . . . NOT (OVER) ANY OTHER SALE OF ELECTRIC
ENERGY.  . . . " SECTION 201(C) DEFINES ENERGY TRANSMITTED IN
INTERSTATE COMMERCE AS ENERGY "TRANSMITTED FROM A STATE AND CONSUMED AT
ANY POINT OUTSIDE THEREOF."  /1/  IN CONNECTICUT LIGHT & POWER CO. V.
FPC, 324 U.S. 515 (1945), WE NOTED THAT BY THIS DEFINITION THE INITIAL
JURISDICTIONAL DETERMINATION "WAS TO FOLLOW THE FLOW OF ELECTRIC
ENERGY, AN ENGINEERING AND SCIENTIFIC, RATHER THAN A LEGALISTIC OR
GOVERNMENTAL, TEST."  ID., AT 529; FPC V. SOUTHERN CALIFORNIA EDISON
CO., 376 U.S. 205, 209 N. 5 (1964). 

IN THE CASE NOW BEFORE US THE FPC HEARING EXAMINER AND THE
COMMISSION ITSELF, UTILIZING TWO SCIENTIFIC TESTS, DETERMINED THAT THE
FLORIDA POWER & LIGHT CO. (FP&L) GENERATES ENERGY THAT IS TRANSMITTED
IN INTERSTATE COMMERCE.  THEY THEREFORE HELD THE COMPANY SUBJECT TO THE
COMMISSION'S JURISDICTION.  RESPONDENT FP&L ARGUES THAT AN ALTERNATIVE
MODEL BETTER REPRESENTS THE FLOW OF ITS ELECTRICITY; BY USE OF THIS
MODEL IT PURPORTS TO DEMONSTRATE THAT ITS POWER HAS NOT FLOWED IN
INTERSTATE COMMERCE.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
REJECTED THE FPC'S TESTS AS "NOT SUFFICIENT TO PROVE THE ACTUAL
TRANSMISSION OF ENERGY INTERSTATE."  430 F.2D 1377, 1383 (1970).  IT
DID NOT APPROVE FP&L'S TEST ("BOTH (THE FPC AND FP&L TESTS) SUFFER FROM
THE SAME VICE," ID., AT 1385), BUT BECAUSE THE FPC MUST SHOULDER THE
BURDEN OF PROOF, ITS FINDING OF JURISDICTION WAS SET ASIDE. 

WE GRANTED CERTIORARI TO DETERMINE IF EITHER OF THE FPC'S TESTS
PROVIDES AN ACCEPTABLE BASIS AT LAW AND A SUFFICIENT BASIS IN FACT FOR
THE ESTABLISHMENT OF JURISDICTION.  401 U.S. 907 (1971). 

        I 

FP&L IS FLORIDA'S LARGEST ELECTRIC UTILITY.  AT THE TIME RELEVANT TO
THIS LITIGATION IT SERVED NEARLY ONE MILLION CUSTOMERS, RANKED NINTH
NATIONALLY AMONG ELECTRIC COMPANIES IN REVENUES, 14TH IN INVESTMENT IN
GROSS UTILITY ELECTRIC PLANT, AND 16TH IN KILOWATT-HOUR SALES.  DESPITE
THIS SIGNIFICANT SIZE, THE PENINSULAR NATURE OF FLORIDA, THE
CONCENTRATION OF THE COMPANY'S SALES IN THE SOUTHERN PART OF THE STATE,
/2/  AND THE RECURRENT THREAT OF HURRICANES WHICH MIGHT SEVER POWER
LINES COMBINE TO MAKE THE OPERATIONS OF THE COMPANY UNUSUALLY INSULAR
AND INDEPENDENT OF THE OPERATIONS OF LIKE COMPANIES IN OTHER STATES. 
ALL OF FP&L'S EQUIPMENT, INCLUDING TRANSMISSION LINES, IS CONFINED TO
FLORIDA AND NONE OF ITS LINES DIRECTLY CONNECT WITH THOSE OF OUT-OF
STATE COMPANIES. 

FP&L DOES, HOWEVER, INDIRECTLY CONNECT WITH OUT-OF-STATE COMPANIES. 
AS A MEMBER OF THE FLORIDA POOL, IT IS INTERCONNECTED WITH THE FLORIDA
POWER CORP. (CORP), /3/  THE TAMPA ELECTRIC CO., THE ORLANDO UTILITIES
COMMISSION, AND THE CITY OF JACKSONVILLE.  THESE INTERCONNECTED
UTILITIES AND AUTHORITIES COORDINATE THEIR ACTIVITIES AND EXCHANGE
POWER AS CIRCUMSTANCES REQUIRE.  /4/  IN 1964 FP&L TRANSFERRED OVER 107
MILLION KWH TO CORP AND RECEIVED OVER 61 MILLION KWH FROM CORP. /5/  IF
POWER FROM FP&L FLOWS IN INTERSTATE COMMERCE IT IS BECAUSE CORP
INTERCONNECTS JUST SHORT OF FLORIDA'S NORTHERN BORDER WITH GEORGIA
POWER CO.  /6/ AND REGULARLY EXCHANGES POWER WITH IT.  /7/  GEORGIA'S
LINES TRANSMIT THE POWER OUT OF OR INTO FLORIDA.  THERE ARE NUMEROUS
INSTANCES IN WHICH TRANSFERS BETWEEN GEORGIA AND CORP ARE RECORDED AS
COINCIDING WITH TRANSFERS BETWEEN CORP AND FP&L.  /8/ 

THE GEORGIA-CORP INTERCONNECTION SERVES ANOTHER FUNCTION.  CORP,
FP&L, AND THE OTHER FLORIDA POOL PARTICIPANTS ARE MEMBERS OF THE
INTERCONNECTED SYSTEMS GROUP (ISG), A NATIONAL INTERLOCKING OF
UTILITIES THAT AUTOMATICALLY PROVIDES POWER IN CASE OF EMERGENCIES.  IN
TIME OF EMERGENCY THIS POWER ALSO WOULD FLOW THROUGH CORP'S LINKS WITH
GEORGIA.  TO DATE FP&L HAS HAD NO OCCASION TO CALL FOR ISG POWER.  BUT
WHEN A MIDWESTERN UTILITY SUSTAINED A 580-MEGAWATT GENERATING LOSS, A
REGULARLY SCHEDULED 8-MEGAWATT F&L CONTRIBUTION TO THE FLORIDA POOL
COINCIDED WITH AN 8-MEGAWATT CONTRIBUTION FROM THE POOL TO THE ISG
SYSTEM. 

THESE RELATIONSHIPS ESTABLISH THE FOCUS ISSUE IN THIS CASE.  THE FPC
MAY EXERCISE JURISDICTION ONLY IF THERE IS SUBSTANTIAL EVIDENTIARY
SUPPORT FOR THE COMMISSION'S CONCLUSION THAT FP&L POWER HAS REACHED
GEORGIA VIA CORP OR THAT GEORGIA'S POWER HAS REACHED FP&L BECAUSE OF
EXCHANGES WITH CORP.  WHAT HAPPENS WHEN FP&L GIVES POWER TO CORP AND
CORP GIVES POWER TO GEORGIA (OR VICE VERSA)?  IS FP&L POWER COMMINGLED
WITH CORP'S OWN SUPPLY, AND THUS PASSED ON WITH THAT SUPPLY, AS THE
COMMISSION CONTENDS"  OR IS IT DIVERTED TO HANDLE CORP'S INDEPENDENT
POWER NEEDS, DISPLACING A LIKE AMOUNT OF CORP POWER THAT IS THEN PASSED
ON, AS RESPONDENT ARGUES?  OR, AS THE COMMISSION ALSO CONTENDS, DO
CHANGES IN FP&L'S LOAD OR GENERATION, OR THAT OF OTHERS IN THE
INTERCONNECTED SYSTEM, STIMULATE A REACTION UP AND DOWN THE LINE BY A
SIGNAL OR A CHAIN REACTION THAT IS, IN ESSENCE, ELECTRICITY MOVING IN
INTERSTATE COMMERCE?  UPON ANSWER TO THESE QUESTIONS, JURISDICTION
RIDES. 

IF FP&L WERE DIRECTLY INVOLVED IN POWER EXCHANGES WITH GEORGIA,
THERE WOULD BE NO SERIOUS QUESTION ABOUT THE RESOLUTION OF THIS CASE. 
DETERMINATION OF THIS COURT THAT A DIRECT TRANSFER OF POWER FROM A
UTILITY IN RHODE ISLAND TO A UTILITY IN MASSACHUSETTS IS IN INTERSTATE
COMMERCE.  SEE PUBLIC UTILITIES COMM'N V. ATTLEBORO STEAM & ELECTRIC
CO., 273 U.S. 83 (1927).  "PART II (OF THE ACT) IS A DIRECT RESULT OF
ATTLEBORO."  UNITED STATES V. PUBLIC UTILITIES COMM'N OF CALIFORNIA,
345 U.S. 295, 311 (1953).  THERE CAN BE NO DOUBT THAT SEC. 201 ACHIEVES
ITS END AND FILLS THE "ATTLEBORO GAP" BY GIVING THE FPC JURISDICTION
OVER DIRECT EXCHANGES.  CONNECTICUT LIGHT & POWER CO. V. FPC, 324 U.S.
515 (1945). 

NOR WOULD THERE BE ANY DIFFICULTY IN RESOLVING THIS CASE IF THE
COMPANY OR COMPANIES THAT STOOD BETWEEN FP&L AND THE OUT-OF-STATE POWER
COMPANIES COULD BE SHOWN TO BE SOMETIMES NO MORE THAN A FUNNEL.  IN
JERSEY CENTRAL POWER & LIGHT CO. V. FPC, 319 U.S. 61 (1943), THE FIRST
OF THE MAJOR FPC JURISDICTIONAL CASES TO BE CONSIDERED BY THIS COURT,
JERSEY CENTRAL SUPPLIED POWER TO THE PUBLIC SERVICE ELECTRIC & GAS CO.
(ALSO A NEW JERSEY COMPANY), WHICH IN TURN HAD EXCHANGE ARRANGEMENTS
WITH STATEN ISLAND EDISON CORP. (A NEW YORK COMPANY).  THE TRANSFER
FROM PSE&G TO STATEN ISLAND WAS EFFECTED THROUGH A "BUS"-- A
TRANSMISSION LINE OF THREE CONDUCTORS INTO WHICH A NUMBER OF SUBSIDIARY
LINES CONNECT.  THE FPC SHOWED THROUGH EXTENSIVE SAMPLING OF THE LOGS
OF THE RELEVANT COMPANIES, THAT ON AT LEASE A DOZEN OCCASIONS WHEN
STATEN ISLAND DREW POWER FROM THE BUS ONLY JERSEY CENTRAL WAS SUPPLYING
THE BUS.  THUS, THE INTERMEDIATE PRESENCE OF PSE&G WAS SHOWN TO BE, IN
SOME CIRCUMSTANCES, A NULL FACTOR, AND IT WAS ESTABLISHED THAT JERSEY
CENTRAL ENERGY WAS MOVING IN INTERSTATE COMMERCE. 

IN THE LITIGATION BEFORE US THE RECORD DOES NOT DISCLOSE SITUATIONS
IN WHICH CORP OPERATED AS A NULL OR INSUFFICIENT FACTOR.  THUS, THE FPC
HAS NOT IN THIS LITIGATION DEMONSTRATED WITH THE CLARITY AND CERTAINTY
OBTAINING IN THE JERSEY CENTRAL CASE THAT THE ENERGY FLOWS THAT ARE A
PREREQUISITE TO JURISDICTION OCCURRED. 

THIS IS NOT, HOWEVER, THE EQUIVALENT OF SAYING THAT THE FLOWS DID
NOT OCCUR OR THAT THERE WAS NOT SUBSTANTIAL EVIDENCE FOR CONCLUDING
THAT THEY DID.  THE COURT OF APPEALS WAS HARDLY LESS EMPHATIC THAN THE
FEDERAL POWER COMMISSION IN ITS CONCLUSION THAT FP&L'S "PROOF" THAT THE
FLOWS DID NOT OCCUR WAS UNCONVINCING.  THE COURT PURPORTED TO HAVE NO
OPINION WHETHER THE FLOWS HAD ACTUALLY OCCURRED.  THE QUESTION THAT
MUST BE RESOLVED, THEREFORE, IS WHETHER THE EVIDENCE PRESENTED, THOUGH
NOT SO CERTAIN AND CONVINCING AS THAT WHICH THE FPC OFFERED IN JERSEY
CENTRAL, WAS NONETHELESS ADEQUATE TO ESTABLISH JURISDICTION. 

WE TURN FIRST TO THE CONFLICTING QUESTIONS OF THE PARTIES. 

        II 

THE FEDERAL POWER COMMISSION FOLLOWED ALTERNATE ROUTES TO ITS
CONCLUSION THAT FP&L ENERGY MOVED IN INTERESTATE COMMERCE.  THE FIRST
COURSE, BASED ON WHAT THE COMMISSION CALLED THE ELECTROMAGNETIC UNITY
OF RESPONSE OF INTERCONNECTED ELECTRICAL SYSTEMS, IS BEST REPRESENTED
IN THE WORDS OF THE HEARING EXAMINER: 

"(NONE OF THE CONNECTED ELECTRIC SYSTEMS INCLUDING THAT OF FLORIDA,
CORP, AND GEORGIA HAS ANY CONTROL OVER THE ACTUAL TRANSFERS OF POWER AT
EACH POINT OF INTERCONNECTION BECAUSE OF THE FREE FLOW CHARACTERISTICS
OF ELECTRIC NETWORKS.  . . . 

     "AN ELECTRIC UTILITY SYSTEM SUCH AS FLORIDA (POWER & LIGHT) IS

ESSENTIALLY AN ELECTRO-MECHANICAL SYSTEM TO WHICH ALL OPERATING

  GENERATORS ON THE INTERCONNECTED NETWORK ARE INTERLOCKED

  ELECTROMAGNETICALLY.  THIS MEANS THAT ELECTRIC GENERATORS, UNDER

  ORDINARY OPERATING CONDITIONS RUN EITHER AT EXACTLY THE SAME

  SPEED OR AT SPEEDS WHICH WILL RESULT IN A FREQUENCY OF 60

  CYCLES.  NO OPERATING GENERATOR CAN CHANGE ITS SPEED BY ITSELF AS

  LONG AS IT OPERATES CONNECTED TO THE NETWORK.  ALL GENERATORS

  CONNECTED TO THE SAME NETWORK MUST FOLLOW EACH OTHER AS TO SPEED

  AND FREQUENCY WHENEVER THERE IS A CHANGE IN FREQUENCY, AND THE

  FREQUENCY OF ALL INTERLOCKED GENERATORS IS ALWAYS EXACTLY THE

SAME. 

        .          .          .          . 

   "IF A HOUSEWIFE IN ATLANTA ON THE GEORGIA SYSTEM TURNS ON A

  LIGHT, EVERY GENERATOR ON FLORIDA'S SYSTEM ALMOST INSTANTLY IS

  CAUSED TO PRODUCE SOME QUANTITY OF ADDITIONAL ELECTRIC ENERGY

  WHICH SERVES TO MAINTAIN THE BALANCE IN THE INTERCONNECTED SYSTEM

  BETWEEN GENERATION AND LOAD.  IF SENSITIVE ENOUGH INSTRUMENTS

  WERE AVAILABLE AND WERE TO BE PLACED THROUGHOUT FLORIDA'S SYSTEM

  THE INCREASE IN GENERATION BY EVERY GENERATOR ON FLORIDA (POWER &

  LIGHT) COULD BE PRECISELY MEASURED." 

THE HEARING EXAMINER CONCLUDED: 

     "THE CAUSE AND EFFECT RELATIONSHIP IN ELECTRIC ENERGY
OCCURRING

  THROUGHOUT EVERY GENERATOR AND POINT ON THE GEORGIA, CORP AND

  FLORIDA SYSTEMS CONSTITUTES INTERSTATE TRANSMISSION OF ELECTRIC

  ENERGY BY, TO, AND FROM FLORIDA. 

IT IS THE ELECTROMAGNETIC UNITY OF RESPONSE TO FLORIDA, CORP, GEORGIA
AND

  OTHER INTERCONNECTING SYSTEMS THAT CONSTITUTES THE INTERSTATE
TRANSMISSION OF ELECTRIC ENERGY

 BY FLORIDA."  /9/ 

BY THIS ANALYSIS A CHANGE IN FP&L'S LOAD OR GENERATING PATTERN
DEPLETES OR ADDS TO THE FORCE AVAILABLE IN OUT-OF-STATE LINES; THERE
FP&L IS TRANSMITTING ENERGY IN INTERSTATE COMMERCE. 

THE ALTERNATIVE ANALYSIS BY THE COMMISSION AND ITS STAFF EXPERTS
CONCENTRATES ON POWER FLOW WITHIN THE "TURNER BUS"-- THE POINT OF
CONNECTION BETWEEN CORP'S AND FP&L'S SYSTEMS.  POWER SUPPLIED TO THE
BUS FROM A VARIETY OF SOURCES IS SAID TO MERGE AT A POINT AND TO BE
COMMINGLED JUST AS MOLECULES OF WATER FROM DIFFERENT SOURCES (RAINS,
STREAMS, ETC.) WOULD BE COMMINGLED IN A RESERVOIR.  ON THIS BASIS THE
FPC NEED ONLY SHOW (1) FP&L POWER ENTERING THE BUS AND (2) POWER
LEAVING THE BUS FOR OUT-OF-STATE DESTINATIONS AT THE SAME MOMENT, IN
ORDER TO ESTABLISH THE FACT THAT SOME FP&L POWER GOES OUT OF STATE. 
/10 THE FPC PURPORTED TO MAKE THIS DEMONSTRATION BY A SERIES OF TRACING
STUDIES.  /11/ 

FP&L OBJECTS.  THE FIRST APPROACH IS SAID TO BE TECHNOLOGICALLY
SOUND, BUT LEGALLY INSUFFICIENT IN THAT IT DOES NOT DEMONSTRATE THAT
ANY FP&L POWER FLOWS IN INTERSTATE COMMERCE, BUT ONLY THAT IT AFFECTS
INTERSTATE COMMERCE.  CONGRESS, IT IS ARGUED, COULD HAVE CHOSEN TO
GRANT THE FPC JURISDICTION OVER ACTIVITIES AFFECTING COMMERCE, BUT IT
CLEARLY DID NOT DO SO.  /12/ 

THE SECOND APPROACH OF THE FPC PURPORTS TO MEET THE STANDARD AT LAW,
BUT ACCORDING TO FP&L IT IS TECHNOLOGICALLY UNSOUND.  A BUS IS NOT A
POINT, BUT RATHER A TANGIBLE, PHYSICAL THREE-STRAND POWER LINE, IN THIS
CASE 225 FEET IN LENGTH.  IT IS ARGUED THAT IT IS NOT A GENERAL
RESERVOIR.  POWER, ACCORDING, TO THIS ARGUMENT, ENTERS AND IS DRAWN OFF
THE LINE AT DISCRETE IDENTIFIABLE POINTS.  POWER FROM ANY GIVEN SOURCE
WILL NOT FLOW FURTHER ALONG THE LINE THAN LOADS OF WATTAGE CUMULATIVELY
EQUAL TO THE WATTAGE OF THE POWER SOURCE.  THE DISTRIBUTION OF ENTRY
LINES AND WATTAGE LOADS ON THE TURNER BUS IS SAID TO DEMONSTRATE THAT
ALL OF THE FP&L'S POWER WILL BE EXHAUSTED BY CORP'S LOAD LINES BEFORE
THE POINT, FURTHER DOWN THE LINE, WHERE GEORGIA'S LOAD INTERVENES. 
WHEN POWER FLOWS IN THE OPPOSITE DIRECTION (I.E., NORTH TO SOUTH) AGAIN
THE EFFECT IS ONE OF DISPLACEMENT:  GEORGIA'S POWER GOES TO CORP'S
LOADS AND THE OUTPUT OF CORP'S GENERATORS IS THUS DISPLACED TO FP&L.

        III 

WE DO NOT FIND IT NECESSARY TO APPROVE OR DISAPPROVE THE FEDERAL
POWER COMMISSION'S ANALYSIS BASED ON UNITY OF ELECTROMAGNETIC
RESPONSE.  ITS ALTERNATIVE ASSERTION THAT ENERGY COMMINGLES IN A BUS
IS, IN OUR OPINION, SUFFICIENT TO SUSTAIN JURISDICTION.     IN
EVALUATING THIS SECOND APPROACH, THE COURTS ARE CALLED UPON TO DO NO
MORE THAN ASSESS THE COMMISSION'S JUDGMENT OF TECHNICAL FACTS.  IF THE
COMMISSION'S CONCLUSION OF COMMINGLING IS NOT OVERTURNED, THEN THE
LEGAL CONSEQUENCES ARE CLEAR. 

THE CONCLUSION OF THE FPC THAT FP&L ENERGY COMMINGLED WITH THAT OF
CORP AND WAS TRANSMITTED IN COMMERCE RESTED ON THE TESTIMONY OF EXPERT
WITNESSES.  THE MAJOR POINTS EXPOUNDED BY THESE WITNESSES WERE PROBED,
AND IN OUR OPINION NOT UNDERCUT, BY THE HEARING EXAMINER'S QUESTION,
FP&L'S CROSS-EXAMINATION, AND REBUTTAL TESTIMONY OF FP&L WITNESSES. 
THE HEARING EXAMINER FOUND THE TESTIMONY PERSUASIVE AND HELD THAT HIS
CONCLUSIONS COULD BE INDEPENDENTLY REACHED UPON IT.  A MAJORITY OF THE
COMMISSION, REASONING SIMILARLY, ENDORSED THESE CONCLUSIONS. 

A COURT MUST BE RELUCTANT TO REVERSE RESULTS SUPPORTED BY SUCH A
WEIGHT OF CONSIDERED AND CAREFULLY ARTICULATED EXPERT OPINION. 
PARTICULARLY WHEN WE CONSIDER A PURELY FACTUAL QUESTION WITHIN THE AREA
OF COMPETENCE OF AN ADMINISTRATIVE AGENCY CREATED BY CONGRESS, AND WHEN
RESOLUTION OF THAT QUESTION DEPENDS ON "ENGINEERING AND SCIENTIFIC"
CONSIDERATIONS, WE RECOGNIZE THE RELEVANT AGENCY'S TECHNICAL EXPERTISE
AND EXPERIENCE, AND DEFER TO ITS ANALYSIS UNLESS IT IS WITHOUT
SUBSTANTIAL BASIS IN FACT.  AN APPRECIATION OF SUCH DIFFERENT
INSTITUTIONAL CAPACITIES IS REFLECTED IN THE CONGRESSIONAL DIRECTIVE
DEFINING THE TERMS OF JUDICIAL REVIEW OF FPC ACTION:  "THE FINDING OF
THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE,
SHALL BE CONCLUSIVE."  FEDERAL POWER ACT SEC. 313(B), 16 U.S.C.
825LB).  SEE GAINESVILLE UTILITIES DEPT. V. FLORIDA POWER CORP., 402
U.S. 515, 526-529 (1971). 

THE COURT OF APPEALS APPEARS TO HAVE REJECTED THE COMMISSION'S
CONCLUSIONS FOR TWO REASONS.  FIRST, IT APPARENTLY REGARDED THESE
CONCLUSIONS AS SUPPORTED BY MERE SPECULATION RATHER THAN EVIDENCE.  IN
ITS VIEW, EXPERT OPINION ABOUT THE NATURE OF REALITY, HOWEVER LOGICALLY
COMPELLING, IS NOT FACT.  /13/  SECOND, EVEN IF THE COMMISSION'S VIEWS
MIGHT BE SAID TO BE SUPPORTED BY SUBSTANTIAL EVIDENCE, THE COURT OF
APPEALS APPARENTLY THOUGHT IT IMPORTANT THAT THE COMMISSION
ACKNOWLEDGED THAT ITS CONCLUSIONS REST UPON REPRESENTATIONS OF A
REALITY IMPERFECTLY UNDERSTOOD.  FROM THIS THE COURT OF APPEALS
CONCLUDED THAT IT WAS DEALING WITH A "SIMPLIFIED CHARACTERIZATION"
THAT, DESPITE THE FREQUENT USE OF THAT SAME CHARACTERIZATION BY OTHER
COURTS OF APPEALS, /14/  WAS TOO UNCERTAIN IN ITS APPLICATION TO ANY
PARTICULAR SITUATION TO BE USED AS THE BASIS FOR ESTABLISHING
JURISDICTION. 

WE REVERSE AND REINSTATE THE FPC'S ORDER BECAUSE WE DO NOT THINK
THESE POINTS ARE WELL TAKEN.  AS TO THE COURT OF APPEAL'S FIRST
RESERVATION, WE HOLD THAT WELL-REASONED EXPERT TESTIMONY-- BASED ON
WHAT IS KNOWN AND UNCONTRADICTED BY EMPIRICAL EVIDENCE-- MAY IN AND OF
ITSELF BY "SUBSTANTIAL EVIDENCE" WHEN FIRST-HAND EVIDENCE ON THE
QUESTION (IN THIS CASE HOW ELECTRICITY MOVES WITHIN A BUS) IS
UNAVAILABLE.  /15/  THIS PROPOSITION HAS BEEN SO LONG ACCEPTED, /16/
AND INDEED HAS BEEN SO OFTEN APPLIED SPECIFICALLY TO CHALLENGES TO THE
FPC'S DETERMINATION OF TECHNICAL MATTERS, THAT WE DO NOT CONSIDER IT
FAIRLY IN DISPUTE.  SEE, E.G., FPC V. SOUTHERN CALIFORNIA EDISON CO.,
376 U.S. 205, 209 N. 5 (1964); TRAVELERS' INDEMNITY CO. V. PARKERSBURG
IRON & STEEL CO., 70 F.2D 63, 64 (1934); UNITED STATES EX REL. CHAPMAN
V. FPC, 191 F.2D 796, 808 (1951), AFF'D, 345 U.S. 153 (1953).  AS JUDGE
PARKER SAID IN THE COURT OF APPEALS' OPINION IN THE LATTER CASE: 

     "THE (SUBSTANTIAL-EVIDENCE) RULE IS NO DIFFERENT BECAUSE THE

  QUESTIONS INVOLVE MATTERS OF SCIENTIFIC KNOWLEDGE AND THE

  EVIDENCE CONSISTS LARGELY OF THE OPINION OF EXPERTS.  THE COURT

  MAY NOT, FOR THAT REASON, IGNORE THE CONCLUSIONS OF THE EXPERTS

  AND THE COMMISSION AND PUT ITSELF IN THE ABSURD POSITION OF

SUBSTITUTING ITS JUDGMENT FOR THEIRS ON CONTROVERTED MATTERS OF

  HYDRAULIC ENGINEERING.  IT IS IN JUST SUCH MATTERS THAT THE

  FINDINGS OF THE COMMISSION, BECAUSE OF ITS EXPERIENCE AND THE

  ASSISTANCE OF ITS TECHNICAL STAFF, SHOULD BE ACCORDED THE

  GREATEST WEIGHT AND THE COURTS SHOULD BE MOST HESITANT TO

  SUBSTITUTE THEIR JUDGMENT FOR THAT OF THE COMMISSION."  191

  F.2D,AT 808. 

ON AFFIRMING, THIS COURT NOTED, 

"(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."  345 U.S.,AT 171. 

THE ELUSIVE NATURE OF ELECTRONS RENDERS EXPERIMENTAL EVIDENCE THAT
MIGHT DRAW THE FINE DISTINCTIONS REQUIRED BY THIS CASE PRACTICALLY
UNOBTAINABLE.  THAT DOES NOT MEAN THAT EXPERT TESTIMONY IS
INSUBSTANTIAL AND THAT FP&L IS BEYOND FEDERAL REGULATION. 

WE THINK THE SECOND, RELATED, CONCERN EXPRESSED BY THE COURT OF
APPEALS EXAGGERATES THE STANDARD OF PROOF REQUIRED IN CIVIL CASES SUCH
AS THIS.  THE LOWER COURT WOULD APPARENTLY REQUIRE TRACING STUDIES
SHOWING AN ENERGY FLOW-THROUGH LIKE THAT DEMONSTRATED IN JERSEY
CENTRAL. 

WE DO NOT THINK JERSEY CENTRAL SETS SUCH HIGH JURISDICTIONAL
STANDARDS.  SPECIAL CIRCUMSTANCES IN THAT CASE (THE OCCASIONAL
OPERATION OF PSE&G AS A NULL FACTOR) PERMITTED THE FPC TO PRESENT CLEAR
AND COMPELLING PROOF OF INTERSTATE TRANSACTIONS.  BUT WE ASSESSED THE
FPC'S DETERMINATION, NOT BY THE STANDARDS OF CERTAINTY, BUT RATHER BY
THE SUBSTANTIAL-EVIDENCE TEST.  /17/  THE FACT THE FPC WAS
EXCEPTIONALLY CONVINCING IN THAT LEADING CASE DOES NOT RAISE THE
STANDARD THAT IT MUST MEET IN ALL FUTURE CASES. 

FINDING NO REASON IN THE CASE LAW FOR IMPOSING A STANDARD OF
CERTAINTY, WE ARE NOT WILLING TO CONSTRUCT ONE.  IT IS NOT TRUE, AS
ARGUED BY RESPONDENT, THAT AN ENGINEERING TEST OF CERTAINTY IS NEEDED
TO RESERVE AN AREA OF STATE JURISDICTION.  ON TOP OF THE "ENGINEERING
AND SCIENTIFIC TEST" THAT CONTROLS THIS CASE, THE FEDERAL POWER ACT
IMPOSES A "LEGALISTIC OR GOVERNMENTAL" TEST.  FEDERAL JURISDICTION MAY
NOT REACH "FACILITIES USED IN LOCAL DISTRIBUTION" OF ENERGY.  16 U.S.C.
824(B).  THUS, STATE JURISDICTION IS CLEARLY DEMARCATED AND PRESERVED. 
CONNECTICUT LIGHT & POWER CO. V. FPC, 324 U.S. 515 (1945). 

A REQUIREMENT OF TRACING STUDIES OF THE SORT DEMANDED BY THE COURT
OF APPEALS-- IF THEY ARE FEASIBLE AT ALL /18/  -- WOULD TAKE ONE TO TWO
YEARS TO CONDUCT.  /19/  EVEN UNDER THE FPC'S SUPPOSEDLY TOO EASILY MET
CRITERIA OF JURISDICTION, THE FP&L MATTER TOOK ALMOST FOUR YEARS TO
PASS THROUGH COMMISSION PROCEEDINGS; /20/  IT HAS BEEN BEFORE THE
COURTS FOR MORE MORE YEARS.  IF THE CONGRESSIONALLY MANDATED SYSTEM IS
TO FUNCTION MEANINGFULLY, THE JUDICIARY CANNOT OVERWHELM IT WITH
UNWORKABLY HIGH STANDARDS OF PROOF.  NEW ENGLAND DIVISIONS CASE, 261
U.S. 184, 197 (1923); RAILROAD COMM'N OF WISCONSIN V. CHICAGO,
BURLINGTON & QUINCY R. CO., 257 U.S. 563, 579 (1922). 

WE NOTE, MOREOVER, THAT JERSEY CENTRAL TYPE TRACING STUDIES BECOME
LESS FEASIBLE AS INTERCONNECTIONS GROW MORE COMPLICATED.  ARKANSAS
POWER & LIGHT CO. V. FPC, 368 F.2D 376, 382 (CA8 1966), QUOTING 34
F.P.C. 747, 751.  THE REQUIREMENT OF JERSEY CENTRAL TYPE TRACING MIGHT
ENCOURAGE THE ARTIFICIAL AND WASTEFUL COMPLICATION OF INTERCONNECTIONS
FOR THE PURPOSE OF AVOIDING FEDERAL JURISDICTION.  MORE IMPORTANT, AS
INTERCONNECTIONS PROLIFERATE AND ENERGY POOLS GROW LARGER,
JURISDICTIONAL HURDLES LIKE THOSE ERECTED BY THE COURT OF APPEALS WOULD
BECOME EVER MORE DIFFICULT TO CLEAR.  THUS, THE GREATER THE NEED FOR
REGULATION, THE MORE LIKELY IT WOULD BECOME (UNDER THE COURT OF
APPEALS' RULE) THAT REGULATION WOULD NOT BE ACHIEVED. 

AS POINTED OUT BY THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN AN
FPC CASE SIMILAR TO THIS ONE, EVEN IN A CRIMINAL PROSECUTION WHERE THE
HIGHEST STANDARDS OF PROOF ARE REQUIRED, GUILTY MAY BE SHOWN BY
CIRCUMSTANTIAL EVIDENCE.  /21/  THE FPC HAS USED TRACING STUDIES TO
SHOW WHAT WENT INTO AND OUT OF THE TURNER BUS AT A GIVEN MOMENT; IT HAS
MARSHALED EXPERT OPINION TO SUGGEST WHAT MAY REASONABLY BE SAID TO HAVE
OCCURRED IN THE BUS AT THE INSTANT OF TRANSMISSION; IT HAS PRESENTED
THIS EVIDENCE IN A CLOSELY REASONED AND EMPIRICALLY UNCONTRADICTED
OPINION.  RECOGNIZING THAT THE MEN RESPONSIBLE DO NOT NOW FULL
UNDERSTAND ELECTRICITY, /22/  THOUGH THEY KNOW HOW TO USE IT, AND USE
IT ON ON EVER-EXPANDING BASIS, WE DO NOT DEMAND MORE OF THE COMMISSION
THAN THAT ITS CONCLUSIONS BE SUBSTANTIALLY SUPPORTED BY EXPERT OPINION
THAT IS IN ACCORD WITH THE FACTS KNOWN FOR CERTAIN.  THE COMMISSION HAS
DONE ENOUGH TO ESTABLISH ITS JURISDICTION. 

THE DECISION OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR REINSTATEMENT OF THE ORDER OF THE FEDERAL POWER
COMMISSION. 

MR. JUSTICE STEWART, MR. JUSTICE POWELL, AND MR. JUSTICE REHNQUIST
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

/1/  THE RELEVANT SECTIONS OF 16 U.S.C. 824, STATED IN FULL, ARE AS
FOLLOWS: 

"(A) IT IS DECLARED THAT THE BUSINESS OF TRANSMITTING AND SELLING
ELECTRIC ENERGY FOR ULTIMATE DISTRIBUTION TO THE PUBLIC IS AFFECTED
WITH A PUBLIC INTEREST, AND THAT FEDERAL REGULATION OF MATTERS RELATING
TO GENERATION TO THE EXTENT PROVIDED IN THIS SUBCHAPTER AND SUBCHAPTER
II OF THIS CHAPTER AND OF THAT PART OF SUCH BUSINESS WHICH CONSISTS OF
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. 

"(B) THE PROVISIONS OF THIS SUBCHAPTER SHALL APPLY TO THE
TRANSMISSION OF ELECTRIC ENERGY IN INTERSTATE COMMERCE AND TO THE SALE
OF ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE, BUT SHALL NOT
APPLY TO ANY OTHER SALE OF ELECTRIC ENERGY OR 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
COMMISSION SHALL HAVE JURISDICTION OVER ALL FACILITIES FOR SUCH
TRANSMISSION OR SALE OF ELECTRIC ENERGY, BUT SHALL NOT HAVE
JURISDICTION, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SUBCHAPTER AND
SUBCHAPTER III OF THIS CHAPTER, OVER FACILITIES USED FOR THE GENERATION
OF ELECTRIC ENERGY OR OVER FACILITIES USED IN LOCAL DISTRIBUTION OR
ONLY FOR THE TRANSMISSION OF ELECTRIC ENERGY IN INTRASTATE COMMERCE, OR
OVER FACILITIES FOR THE TRANSMISSION OF ELECTRIC ENERGY CONSUMED WHOLLY
BY THE TRANSMITTER. 

"(C) FOR THE PURPOSE OF THIS SUBCHAPTER, ELECTRIC ENERGY SHALL BE
HELD TO BE TRANSMITTED IN INTERSTATE COMMERCE IF TRANSMITTED FROM A
STATE AND CONSUMED AT ANY POINT OUTSIDE THEREOF; BUT ONLY INSOFAR AS
SUCH TRANSMISSION TAKES PLACE WITHIN THE UNITED STATES. 

"(D) THE TERM 'SALE OF ELECTRIC ENERGY AT WHOLESALE' WHEN USED IN
THIS SUBCHAPTER, MEANS A SALE OF ELECTRIC ENERGY TO ANY PERSON FOR
RESALE." 

/2/  SEVENTY-FIVE PERCENT OF FP&L'S LOAD IS CONCENTRATED AT THE
SOUTHERN TIP OF FLORIDA, SOME 400 MILES SOUTH OF THE GEORGIA BORDER. 
TRANSCRIPT OF PROCEEDINGS BEFORE THE FPC 251.  REPRINTED IN APP. 2 ET
SEQ. (HEREINAFTER REFERRED TO AS (T). 

/3/  CORP WAS BEFORE THIS COURT IN GAINESVILLE UTILITIES DEPT. V.
FLORIDA POWER CORP., 402 U.S. 515 (1971), IN WHICH CASE ITS OPERATIONS
ARE DESCRIBED IN SOME DETAIL.  CORP IS A PUBLIC UTILITY SUBJECT TO THE
FPC'S JURISDICTION. 

/4/  "THE PURPOSE OF THE ENERGY INTERCHANGES IS TO TAKE CARE OF
TEMPORARY NEEDS.  THERE ARE NO ECONOMY SALES (SALES BY A COMPANY THAT
CAN PRODUCE LOWER COST POWER TO A HIGHER COST PRODUCER) BECAUSE FUEL
COSTS ARE SIMILAR FOR ALL MEMBERS (OF THE FLORIDA POOL)."  OPINION OF
THE FPC HEARING EXAMINER, 37 F.P.C. 544, 562. 

/5/  HEARING EXHIBIT NO. 15, P. 1028(T). 

/6/  IT HAS OTHER INTERCONNECTIONS ACROSS STATE LINES, BUT WE
CONCENTRATE, AS DID THE FPC, ON A SINGLE GEORGIA-CORP CONNECTION.  IF
FP&L POWER IS SHOWN TO FLOW THROUGH THIS CONNECTION THE OTHERS NEED NOT
BE CONSIDERED, BECAUSE JURISDICTION IS ESTABLISHED.  SEE N. 7, INFRA. 

/7/  OPINION OF THE FPC HEARING EXAMINER, 37 F.P.C.,AT 564. 

/8/  FPC STAFF EXHIBITS REVEALED 42 INSTANCES, DISCOVERED BY METER
READINGS AT SELECTED HOURS OVER A FOUR-MONTH PERIOD, IN WHICH A
TRANSFER FROM GEORGIA TO CORP'S BUS WAS INSTANTLY FOLLOWED BY A
TRANSFER FROM THAT BUS TO FP&L.  HEARING EXHIBITS NOS. 18, PP. 1048
1054(T), AND 19, PP. 1055-1059(T).  FIVE INSTANCES OF POWER FLOW FROM
FP&L TO CORP'S BUS, FOLLOWED BY TRANSMISSION FROM THAT BUS TO GEORGIA
WERE RECORDED OVER THE SAME PERIOD.  HEARING EXHIBIT NO. 32, P.
1116(T).  "FOR EXAMPLE, STAFF'S EXHIBIT NO. 18, AT PAGE 6, GRAPHICALLY
DEMONSTRATES THAT ON SEPTEMBER 28, 1954, AT 7:00 O'CLOCK P.M., THERE
WAS A FLOW OF 51,000 KW OF INTERSTATE POWER FROM GEORGIA TO CORP AND AN
INSTANTANEOUS FLOW OF 50,000 KW OF . . . POWER FROM CORP TO FPL." 
OPINION OF THE FPC, 37 F.P.C.,AT 550. 

/9/  OPINION OF THE HEARING EXAMINER, 37 F.P.C.,AT 567-568. 

/10/  IF ANY FP&L POWER HAS REACHED GEORGIA, OR FP&L MAKES USE OF
ANY GEORGIA POWER, NO MATTER HOW SMALL THE QUANTITY, FPC JURISDICTION
WILL ATTACH BECAUSE IT IS SETTLED THAT CONGRESS HAS NOT "CONTRADICTED
THE JURISDICTION OF THE COMMISSION UPON ANY PARTICULAR VOLUME OR
PROPORTION OF INTERSTATE ENERGY INVOLVED, AND WE DO NOT . . . SUPPLY
SUCH A JURISDICTIONAL LIMITATION BY CONSTRUCTION."  CONNECTICUT LIGHT &
POWER CO. V. FPC, 324 U.S. 515, 536.  SEE ALSO PENNSYLVANIA WATER &
POWER CO. V. FPC, 343 U.S. 414 (1952). 

/11/  SEE EXHIBITS NOS. 18 AND 19, PP. 104801059(T). 

/12/  THIS ARGUMENT IS DEVELOPED BY THE DISSENT IN JERSEY CENTRAL
POWER & LIGHT CO. V. FPC, 319 U.S. 61, 78 ET SEQ. NOTE PARTICULARLY P.
88:  "IT IS INTERESTING TO COMPARE, IN THIS CONNECTION, OTHER STATUTES
ENACTED BY THE SAME CONGRESS (AS THE ONE WHICH ENACTED PART II OF THE
FEDERAL POWER ACT) ACT).  THREE ADOPTED IN JULY AND AUGUST 1935 COVERED
ACTIVITIES 'AFFECTING' COMMERCE; THREE, INCLUDING THE FEDERAL POWER ACT
IN QUESTION, ADOPTED IN AUGUST 1935 DID NOT COVER ACTIVITIES
'AFFECTING' COMMERCE."  THUS IT WAS INFERRED THAT WE ARE DEALING WITH A
PARTICULARLY "DISCRIMINATING USE OF LANGUAGE."     /13/  "NEITHER THE
EXAMINER NOR THE COMMISSION TREATED THE COMMINGLING THEORY AS A
SCIENTIFIC FACT DEPICTING ACCURATELY WHAT DOES OCCUR BUT ONLY AS THE
MORE ADEQUATE WAY TO CONCEPTUALIZE ACTUAL OCCURRENCES.     "THE
COMMISSION EXPERT WITNESS JACOBSEN ACKNOWLEDGED COMMINGLING HAS NEVER
BEEN VERIFIED EXPERIMENTALLY AS FACT."  430 F.2D 1377.  1384-1385. 

/14/  SEE PRINCIPALLY INDIANA & MICHIGAN ELECTRIC CO. V. FPC, 365
F.2D 180 (CA7), CERT. DENIED, 385 U.S. 972 (1966); ARKANSAS POWER &
LIGHT CO. V. FPC, 368 F.2D 376 (CA8 1966); PUBLIC SERVICE CO. OF
INDIANA V. FPC, 375 F.2D 100 (CA7), CERT. DENIED, 387 U.S. 931 (1967);
CINCINNATI GAS & ELECTRIC CO. V. FPC, 376 F.2D 506 (CA6), CERT. DENIED,
389 U.S. 842 (1967). 

/15/  "SOMETIMES THE REASON FOR TOLERATING A GAP EITHER BETWEEN
EVIDENCE AND FINDINGS OR BETWEEN FINDINGS AND DECISION HAS TO DO WITH
LIMITATIONS OF HUMAN INTELLECTS OR LIMITATIONS ON THE MAGNITUDE OF
INVESTIGATIONS THAT MAY BE CONDUCTED IN PARTICULAR CIRCUMSTANCES.  NOT
ALL PROPOSITIONS OF FACT THAT ARE USEFUL AND USED IN THE ADMINISTRATIVE
PROCESS ARE SUSCEPTIBLE OF PROOF WITH EVIDENCE.  OR DEVELOPING THE
EVIDENCE WOULD BE INORDINATELY EXPENSIVE."  2 K.DAVIS, ADMINISTRATIVE
LAW TREATISE 16.11, P. 473 (1958). 

/16/  THE WEIGHT OF SUCH TESTIMONY WAS PROPERLY RECOGNIZED BY LORD
MANSFIELD SOME 190 YEARS AGO: 

"THE FACTS IN THIS CASE ARE NOT DISPUTED.  IN 1758 THE BANK WAS
ERECTED, AND SOON AFTERWARDS THE HARBOUR WENT INTO DECAY.  THE QUESTION
IS, TO WHAT HAS THIS DECAY BEEN OWING?  THE DEFENDANT SAYS, TO THIS
BANK.  WHY?  BECAUSE IT PREVENTS THE BACKWATER.  THAT IS MATTER OF
OPINION:-- THE WHOLE CASE IS A QUESTION OF OPINION, FROM FACTS AGREED
UPON.  NOBODY CAN SWEAR THAT IT WAS THE CAUSE.  . . . (THE PARTIES GO
DOWN TO TRIAL . . . AND MR. SMEATON IS CALLED.  A CONFUSION NOW ARISES
FROM A MISAPPLICATION OF TERMS.  IT IS OBJECTED THAT MR. SMEATON IS
GOING TO SPEAK, NOT AS TO FACTS, BUT AS TO OPINION.  THAT OPINION,
HOWEVER, IS DEDUCED FROM FACTS EHICH ARE NOT DISPUTED-- THE SITUATION
OF BANKS, THE COURSE OF TIDES AND OF WINDS, AND THE SHIFTING OF SANDS. 
HIS OPINION, DEDUCED FROM ALL THESE FACTS, IS, THAT, MATHEMATICALLY
SPEAKING, THE BANK AMY CONTRIBUTE TO THE MISCHIEF, BUT NOT SENSIBLY. 
MR. SMEATON UNDERSTANDS THE CONSTRUCTION OF HARBOURS, THE CAUSES OF
THEIR DESTRUCTION, AND HOW REMEDIED.  IN MATTERS OF SCIENCE NO OTHER
WITNESSES CAN BE CALLED . . . . THE QUESTION THEN DEPENDS ON THE
EVIDENCE OF THOSE WHO UNDERSTAND SUCH MATTERS; AND WHEN SUCH QUESTIONS
COME BEFORE ME, I ALWAYS SEND FOR SOME OF THE BRETHREN OF THE TRINITY
HOUSE.  I CANNOT BELIEVE THAT WHERE THE QUESTION IS, WHETHER A DEFECT
ARISES FROM A NATURAL OR AN ARTIFICIAL CAUSE, THE OPINIONS OF MEN OF
SCIENCE ARE NOT TO BE RECEIVED.  . . . THE CAUSE OF THE DECAY OF THE
HARBOUR IS . . . A MATTER OF SCIENCE.  . . . OF THIS, SUCH MEN AS MR.
SMEATON ALONE CAN JUDGE.  THEREFORE WE ARE OF OPINION THAT HIS
JUDGMENT, FORMED ON FACTS, WAS VERY PROPER EVIDENCE."  FOLKES V. CHADD,
3 DOUG.  157, 158-160, 99 ENG.REP.  589-590 (1782). 

MODERN ANALYSIS FOLLOWS THIS PERCEPTION.  SEE 7 J.WIGMORE, EVIDENCE
1917-1976 (3D ED. 1940 AND SUPP. 1970). 

/17/  "THIS EVIDENCE, WE THINK, FURNISHES SUBSTANTIAL BASIS FOR THE
CONCLUSION OF THE COMMISSION THAT FACILITIES OF JERSEY CENTRAL ARE
UTILIZED FOR THE TRANSMISSION OF ELECTRIC ENERGY ACROSS STATE LINES." 
JERSEY CENTRAL, SUPRA, N. 12, AT 67. 

/18/  "LOGIC WOULD SEEM TO DICTATE THAT WHERE THE UTILITY IS A
MEMBER OF A COMBINATION OF UTILITIES AND HAS CONTINUOUS ACCESS TO AN
INTEGRATED POOL OF INTERSTATE ENERGY, THE TRACING OF OUT-OF-STATE
ENERGY IS INDEED DIFFICULT, BURDENSOME, AND PERHAPS IMPOSSIBLE." 
ARKANSAS POWER & LIGHT CO. V. FPC, 368 F.2D,AT 381. 

/19/  PUBLIC SERVICE CO. OF INDIANA V. FPC, 375 F.2D,AT 104 N. 7. 

/20/  THE FINAL FPC DECISION WAS HANDED DOWN ON MAY 2, 1967.  WE DO
NOT KNOW WHEN THE FPC BEGAN ITS INVESTIGATION OF FP&L.  BUT IGNORING
WHAT MUST HAVE BEEN AN EXTENDED PERIOD OF INITIAL STAFF WORK, WE
OBSERVE THAT THE RECORD SHOWS THAT FP&L WAS FORMALLY NOTIFIED ON
OCTOBER 3, 1963, THAT IN THE OPINION OF THE FPC STAFF IT WAS SUBJECT TO
FPC JURISDICTION.  ORDER INITIATING INVESTIGATION AND HEARING 2412(T). 

/21/  "WE REJECT I&M'S FUNDAMENTAL PROPOSITION IN THIS CASE THAT IN
ORDER TO PREVAIL, THE FEDERAL POWER COMMISSION MUST DO WHAT I&M CLAIMS
TO BE IMPOSSIBLE, THAT IS, TO PROVE BY EITHER TRACING OR SOME OTHER
UNNAMED 'SCIENTIFIC AND ENGINEERING PROOF' THAT OUT-OF-STATE ENERGY
REACHES THE WHOLESALE CUSTOMERS.  WE MIGHT RECALL THAT EVEN IN CRIMINAL
CASES, GUILT BEYOND A REASONABLE DOUBT OFTEN CAN BE ESTABLISHED BY
CIRCUMSTANTIAL EVIDENCE."  INDIANA & MICHIGAN ELECTRIC CO. V. FPC, 365
F.2D 180,AT 184. 

/22/  "NOBODY CAN SAY FOR CERTAIN JUST HOW ELECTRICITY IS REALLY
TRANSMITTED."  OPINION OF THE HEARING EXAMINER, 37 F.P.C.,AT 568. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

THERE CAN BE NO DOUBT THAT CONGRESS HAS CONSTITUTIONAL POWER TO
REGULATE UNDER THE COMMERCE CLAUSE THE INTERSTATE "COMMINGLING" OF
ELECTRIC POWER INVOLVED IN THE INSTANT CASE.  SEE CONNECTICUT LIGHT &
POWER CO. V. FPC, 324 U.S. 515, 525-530.  THE QUESTION IS WHETHER IT
HAS DONE SO. 

THE EXAMINER EXPLAINS THE "ELECTROMAGNETIC UNITY" THEORY AND TELLS
US IN ELECTRICAL ENGINEERING TERMS WHY THAT UNASSERTED POWER OF
CONGRESS EXISTS." 

     "AN ELECTRIC UTILITY SYSTEM SUCH AS (RESPONDENT'S) IS

  ESSENTIALLY AN ELECTRO-MECHANICAL SYSTEM TO WHICH ALL OPERATING

  GENERATORS ON THE INTERCONNECTED NETWORK ARE INTERLOCKED

  ELECTROMAGNETICALLY.  THIS MEANS THAT ELECTRIC GENERATORS, UNDER

  ORDINARY OPERATING CONDITIONS, RUN EITHER EXACTLY THE SAME SPEED

OR AT SPEEDS WHICH WILL RESULT IN A FREQUENCY OF 60 CYCLES.  NO

  OPERATING GENERATOR CAN CHANGE ITS SPEED BY ITSELF AS LONG AS IT

  OPERATES CONNECTED TO THE NETWORK.  ALL GENERATORS CONNECTED TO

  THE SAME NETWORK MUST FOLLOW EACH OTHER AS TO SPEED AND FREQUENCY

  WHENEVER THERE IS A CHANGE IN FREQUENCY, AND THE FREQUENCY OF ALL

  INTERLOCKED GENERATORS IS ALWAYS EXACTLY THE SAME. 

     "THE ELECTRIC SYSTEMS OF (RESPONDENT) AND ALL OTHER

  INTERCONNECTED SYSTEMS ARE ESSENTIALLY ALIKE AS TO ELECTRICAL,

  ELECTROMAGNETIC AND ELECTROMECHANICAL CHARACTERISTICS.  BECAUSE

  THEY ARE ALIKE, IT IS POSSIBLE TO HAVE PRESENTLY EXISTING

  INTERCONNECTED OPERATIONS ON A VERY LARGE SCALE, EXTENDING FROM

  THE ROCKY MOUNTAINS TO THE ATLANTIC OCEAN AND FROM THE CANADIAN

  TO THE MEXICAN BORDER. 

        .          .          .          . 

     "IF A HOUSEWIFE IN ATLANTA ON THE GEORGIA SYSTEM TURNS ON A

  LIGHT, EVERY GENERATOR ON (RESPONDENT'S) SYSTEM ALMOST INSTANTLY

  IS CAUSED TO PRODUCE SOME QUANTITY OF ADDITIONAL ELECTRIC ENERGY

  WHICH SERVES TO MAINTAIN THE BALANCE IN THE INTERCONNECTED SYSTEM

BETWEEN GENERATION AND LOAD."  37 F.P.C. 544, 5670568. 

EVIDENTLY UNDESIROUS OF EXPLICITLY OVERRULING THE PROPOSITION THAT
"(MERE CONNECTION DETERMINES NOTHING," JERSEY CENTRAL POWER & LIGHT CO.
V. FPC, 319 U.S. 61, 72 (1943), THE COURT AVOIDS VALIDATING THE FPC'S
ELECTROMAGNETIC UNITY THEORY AS THE JURISDICTIONAL HOLD OVER THE
RESPONDENT.  INSTEAD, RELYING ON THE COMMISSION'S EXPERTISE, THE COURT
PURPORTS TO HOLD A NARROWER GROUND THAT ACTUAL FLOWS OF FP&L'S
ELECTRICITY WERE IN FACT MEASURED PASSING OUT OF FLORIDA THROUGH THE
EMPLOYMENT OF THE COMMISSION'S "COMMINGLED" TRACING METHOD.  CLOSER
ANALYSIS OF THIS LATTER WIZARDRY, WHICH HAD PREVIOUSLY BEEN REJECTED BY
THE COMMISSION, CONNECTICUT LIGHT & POWER CO., 3 F.P.C. 132 (1942),
REVEALS, HOWEVER, THAT ACTUAL FLOWS WERE NOT IN FACT MEASURED BUT WERE
SIMPLY HYPOTHESIZED USING AN ENGINEERING MODEL WHICH, AS THE DISSENTING
COMMISSIONER OBSERVED, "(ASSUMED) THE FACT IN ISSUE, AND THUS (BEGGED)
. . . THE QUESTION OF JURISDICTION."  THE CONVENTIONAL TRACING METHOD
PREVIOUSLY USED IN CASES SUCH AS THIS ONE REACHED AN ENTIRELY DIFFERENT
RESULT-- THAT NO ACTUAL INTERSTATE FLOW OF FPL POWER HAD OCCURED. 
JERSEY CENTRAL POWER & LIGHT CO. V. FPC, SUPRA; CONNECTICUT LIGHT &
POWER CO. V. FPC, 324 U.S. 515. 

THE COMMISSION'S ABANDONMENT OF THE CONVENTIONAL TEST IN FAVOR OF
THE COMMINGLED METHOD WILL NOW MEAN THAT EVERY PRIVATELY OWNED
INTERCONNECTED FACILITY IN THE UNITED STATES (EXCEPT THOSE ISOLATED IN
TEXAS) IS WITHIN THE FPC'S JURISDICTION.  BOTH TRACING METHODS ASSUME
THAT A MOMENTARY INCREASE IN FP&L'S GENERATION OVER ITS LOCAL NEEDS
WILL BE PASSED ON TO THE INTERCONNECTING FLORIDA POWER CORP. (CORP)
SYSTEM LOCATED BETWEEN FP&L AND THE STATE LINE.  THE CONVENTIONAL
SYSTEM ASSUMES THAT SUCH EXCESSES WILL BE ABSORBED BY THE FIRST FEW
LOADS REACHED IN THE CORP SYSTEM AND THEREFORE WILL NEVER CROSS THE
STATE LINE.  ON THE OTHER HAND, THE COMMINGLED APPROACH ASSUMES THAT
THE FIRST LOAD WHICH THE FP&L EXCESS REACHES WILL CONTINUE TO RELY UPON
OTHER UTILITIES' POWER TO A LARGE EXTENT AND THEREFORE WILL ABSORB ONLY
A PART OF THE FP&L EXCESS.  THE LEFTOVER FP&L EXCESS WILL THEN TRAVEL
TO THE NEXT LOAD, BUT AGAIN, WILL ONLY SUPPLY PART OF THOSE CONSUMERS'
NEEDS, WITH THE REMAINDER PASSING ON TO THE NEXT LOAD, AND SO ON, UNTIL
SOME FRACTIONAL PART OF THE ORIGINAL FP&L EXCESS CROSSES THE STATE
LINE.  EXTENDING THE ASSUMPTION'S APPLICATION, IT IS CLEAR THAT ANY
MOMENTARY INCREASE IN OUTPUT BY ANY GENERATOR LOCATED AT ANY POINT IN
THE ISG GRID WILL SEND A SURGE OF POWER THROUGHOUT THE ENTIRE NETWORK. 
IF THIS ASSUMPTION IS APPROVED, THEN IT IS DIFFICULT TO PERCEIVE WHAT
REMAINS OF THE JERSEY CENTRAL PROPOSITION THAT "(MERE CONNECTION
DETERMINES NOTHING." 

THESE SCIENTIFIC FACTS, ARE, OF COURSE, THE BASIS FOR THE GRID
SYSTEMS, MUCH IN VOGUE THESE DAYS.  BUT THE COMMISSION HAS NO AUTHORITY
TO ORDER A COMPANY TO ENTER A GRID.  UNLESS IT IS DONE VOLUNTARILY, AS
WAS TRUE HERE, THE COMMISSION BY VIRTUE OF SEC. 202(B) OF THE FEDERAL
POWER ACT CAN ACT ONLY /1/  "UPON APPLICATION OF ANY STATE COMMISSION
OR OF ANY PERSON ENGAGED IN THE TRANSMISSION OR SALE OF ELECTRIC
ENERGY."  16 U.S.C. 824AB). 

A COMPANY TRANSMITTING ELECTRIC ENERGY IN INTERSTATE COMMERCE IS
SUBJECT TO REGULATION BY THE COMMISSION OF ITS WHOLESALE RATES.  16
U.S.C. 824(B).  BUT THERE IS NO CLAIM HERE THAT WHOLESALE SELLING IS
INVOLVED; AND THE MINUSCULE NATURE OF THE "COMMINGLING" THAT HAS TAKEN
PLACE AND ITS INCIDENTAL NATURE ARE DOUBTLESS THE REASONS WHY THE
COMMISSION HAS NOT UNDERTAKEN THAT PHASE OF REGULATION.  THE CASE IS
THEREFORE UNLIKE PENNSYLVANIA WATER & POWER CO. V. FPC, 343 U.S. 414,
419, 420.  ALL THAT IS INVOLVED HERE IS AN EFFORT TO MAKE RESPONDENT
FOLLOW THE COMMISSION'S UNIFORM SYSTEM OF ACCOUNTS.  /2/  16 U.S.C.
825(A). 

RATHER THAN THE ENGINEERING BATTLE OVER TRACING METHODS, THE CENTRAL
QUESTION OUGHT TO BE WHETHER THE "COMMINGLING" IS SO DE MINIMIS AS TO
WARRANT THE FASTENING OF THE FEDERAL BUREAUCRACY ON THIS LOCAL
COMPANY.  THE LIMITED PURPOSE OF THIS LEGISLATION WAS STATED CLEARLY IN
THE SENATE REPORT: 

"THE DECISION OF THE SUPREME COURT IN PUBLIC UTILITIES COMMISSION V.
ATTLEBORO STEAM & E. CO. (273 U.S. 83) PLACED THE INTERSTATE WHOLESALE
TRANSACTIONS OF THE ELECTRIC UTILITIES ENTIRELY BEYOND THE REACH OF THE
STATES.  OTHER FEATURES OF THIS INTERSTATE UTILITY BUSINESS ARE EQUALLY
IMMUNE FROM STATE CONTROL EITHER LEGALLY OR PRACTICALLY."  S. REP. NO.
621, 74TH CONG., 1ST SESS., 17.  /3/ 

WHILE FEDERAL REGULATION WAS TO BE PERVASIVE, ONCE FASTENED ONTO A
COMPANY, CONGRESS EXPRESSED AN UNAMBIGUOUS POLICY TO PRESERVE AND TO
RELY UPON EFFECTIVE AND ADEQUATE STATE REGULATION: 

"THE REVISED BILL WOULD IMPOSE FEDERAL REGULATION ONLY OVER THOSE
MATTERS WHICH CANNOT EFFECTIVELY BE CONTROLLED BY THE STATES.  THE
LIMITATION ON THE FEDERAL POWER COMMISSION'S JURISDICTION IN THIS
REGARD HAS BEEN INSERTED IN EACH SECTION IN AN EFFORT TO PREVENT THE
EXPANSION OF FEDERAL AUTHORITY OVER STATE MATTERS."  ID., AT 18 . 

AND THIS OBJECTIVE IS PRESENTED IN THE STATUTE'S LANGUAGE: 

"IT IS HEREBY DECLARED . . . THAT FEDERAL REGULATION . . . IS
NECESSARY IN THE PUBLIC INTEREST, SUCH FEDERAL REGULATION, HOWEVER, TO
EXTEND ONLY TO THOSE MATTER WHICH ARE NOT SUBJECT TO REGULATION BY THE
STATES."  PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, SEC. 201(A), 49
STAT. 847. 

THE COMMISSION DOES NOT ASSERT THAT FLORIDA'S REGULATION OF FP&L IS
INADEQUATE.  EACH YEAR THE FLORIDA PUBLIC SERVICE COMMISSION CONDUCTS
FIELD AUDITS OF ELECTRIC UTILITIES TO ENSURE COMPLIANCE WITH ITS
ACCOUNTING PRACTICES AND DEPRECIATION RATES.  /4/  OTHER THAN ENHANCING
THE SLOGAN OF "FEDERAL LEADERSHIP" THE COMMISSION CITES NO FUNCTION
WHICH IT MIGHT BETTER FULFILL THAN THE STATE REGIME. 

THE COURT'S RESULT ALSO RUNS COUNTER TO THE EXPRESSED DESIRE OF
CONGRESS TO ENCOURAGE VOLUNTARY INTERCONNECTION.  ID., SEC. 202(A), 49
STAT. 848.  INTERCONNECTION BETWEEN TWO LOCAL COMPANIES WILL NOW
SUBJECT BOTH TO FEDERAL JURISDICTION IF EITHER IS ALSO CONNECTED TO A
GRID WHICH AT SOME POINT CROSSES A STATE LINE.  TO AVOID THE COSTS
ASSOCIATED WITH SWITCHING FROM STATE TO FEDERAL REGULATION A UTILITY
MAY NOW BE INDUCED TO SEVER SUCH INTERCONNECTIONS.  AS THE DISSENTING
COMMISSIONERS RECOGNIZED: 

"(INTERCONNECTIONS SERVE THE OBJECTIVE RELIABILITY, AND . . .
RELIABILITY IS STRONGLY IN THE PUBLIC INTEREST.  BUT WITH THE PRESENT
NEAR UNIVERSALITY OF INTERCONNECTIONS, IT WOULD SEEM THAT THE
COMMISSION'S OPINION WOULD AS LIKELY LEAD TO PRESENT CONNECTIONS BEING
BROKEN AS TO NEW CONNECTIONS BEING ESTABLISHED OR EXISTING CONNECTION
STRENGTHENED."  37 F.P.C.,AT 559 (1967).     IN LIGHT OF THESE
CONGRESSIONAL PURPOSES I WOULD NOT SUPERIMPOSE FEDERAL REGULATION ON
TOP OF STATE REGULATION IN CASE OF DE MINIMIS TRANSMISSIONS NOT MADE BY
PREARRANGEMENT OR IN CASE OF WHOLESALE TRANSACTIONS.  IN JERSEY CENTRAL
POWER & LIGHT CO. V. FPC, SUPRA, AT 66-67, WE LET FEDERAL REGULATION BE
FASTENED, THOUGH THE ENERGY TRANSMITTED WAS "SMALL."  YET THE
TRANSMISSIONS APPARENTLY WERE NEITHER ACCIDENTAL NOR DE MINIMIS.  ID.,
AT 66 N. 4.     IN THE INSTANT CASE RESPONDENT IS A MEMBER OF THE
INTERCONNECTED SYSTEMS GROUP (ISG) WHICH COVERS THE SOUTHEASTERN AND
CENTRAL PORTIONS OF THE UNITED STATES.  THE COMMISSION APPROVED THE
EXAMINER'S FINDING THAT "ALL 140 MEMBERS OF THE ISG OPERATE IN PARALLEL
AND ARE INTERLOCKED ELECTROMAGNETICALLY; AND THE FPL (RESPONDENT) CAN
RECEIVE FROM OR CONTRIBUTE TO ISG UP TO 100 MW.  THE RECORD FURTHER
SUPPORTS THE EXAMINER'S FINDINGS THAT FPL NORMALLY HAS NO CONTROL OVER
THE ACTUAL TRANSFERS OF ELECTRIC POWER AND ENERGY WITH ANY PARTICULAR
ELECTRIC SYSTEM WITH WHICH IT IS INTERCONNECTED; THAT SINCE ELECTRIC
ENERGY CAN BE DELIVERED VIRTUALLY INSTANTANEOUSLY WHEN NEEDED ON A
SYSTEM AT A SPEED OF 186,000 MILES PER SECOND, SUCH ENERGY CAN BE AND
IS TRANSMITTED TO FPL WHEN NEEDED FROM OUT-OF-STATE GENERATORS, AND IN
TURN CAN BE AND IS TRANSMITTED FROM FPL TO HELP MEET OUT-OF-STATE
DEMANDS; AND FINALLY, THAT THERE IS A CAUSE AND EFFECT RELATIONSHIP IN
ELECTRIC ENERGY OCCURRING THROUGHOUT EVERY GENERATOR AND POINT ON THE
FPL, CORP, GEORGIA, AND SOUTHERN SYSTEMS WHICH CONSTITUTES INTERSTATE
TRANSMISSION OF ELECTRIC ENERGY BY, TO, AND FROM FPL."  37 F.P.C.,AT
549. 

IN THE INSTANT CASE APART FROM THE INFINITESIMAL AND SPORADIC
EXCHANGES THE COMMISSION ONLY FOUND THAT "FPL (RESPONDENT) CONTRIBUTED
8 MW TO ISG TO ASSIST A MIDWESTERN UTILITY WHICH HAD SUSTAINED A 580-MW
GENERATOR LOSS."  IBID.  AND THAT SINGLE EPISODE COULD BE MEASURED IN
TERMS OF SECONDS ONLY.  SUCH FLEETING EPISODES ARE NOT IN MY VIEW
SUFFICIENT TO DISPLACE A STATE REGIME WITH THE FEDERAL ONE, SINCE THE
CONGRESS PROMISED THAT AS MUCH AS POSSIBLE BE LEFT TO THE STATES.  I
WOULD NOT MAKE THAT A HOLLOW PROMISE. 

IF WE ALLOW FEDERAL PRE-EMPTION IN THIS CASE, THEN WE HAVE COME FULL
CYCLE, LEAVING LOCAL AUTHORITIES CONTROL OF ELECTRIC ENERGY ONLY
INSOFAR AS MUNICIPAL PLANTS ARE CONCERNED.  THE FEDERAL CAMEL HAS A
TENDENCY TO OCCUPY PERMANENTLY ANY STATE TENT. 

THAT MAY BE A WISE COURSE; BUT IF SO, CONGRESS SHOULD MAKE THE
DECISION. 

/1/  APART FROM THE EXIGENCIES OF "WAR."  SEE 16 U.S.C. 824AC). 

/2/  THIS IS NOT A CASE WHERE STATE REGULATION HAS A HIATUS THAT THE
FEDERAL REGIME FILLS.  THERE IS NOT, IN OTHER WORDS, A NO-MAN'S AREA
HERE. 

FLA. STAT. SEC. 366.05 (1969), AUTHORIZES THE FLORIDA POWER
COMMISSION TO "PRESCRIBE UNIFORM SYSTEM AND CLASSIFICATION OF ACCOUNTS
FOR ALL PUBLIC UTILITIES, WHICH AMONG OTHER THINGS SHALL SET UP
ADEQUATE, FAIR, AND REASONABLE DEPRECIATION RATES AND CHARGES."  A
RELATED SECTION INCLUDES WITHIN THE TERM PUBLIC UTILITY EVERY PERSON,
CORPORATION, PARTNERSHIP, ASSOCIATION, OR OTHER LEGAL ENTITY AND THEIR
LESSEES, TRUSTEES, OR RECEIVERS OPERATING, MANAGING, OR CONTROLLING ANY
PLANT OR OTHER FACILITY SUPPLYING ELECTRICITY.  ID., SEC. 366.02. 

THE COMMISSION EXERCISES THIS POWER.  SEE 1966 FLORIDA PUBLIC
SERVICE COMM'N ANNUAL REPORT 11: 

"THE ACCOUNTING AND AUDITING DEPARTMENT HAS THE RESPONSIBILITY OF
MAINTAINING SURVEILLANCE OVER THE BOOKS AND RECORDS OF THE VARIOUS
COMPANIES WITHIN THE ELECTRIC . . . INDUSTRIES SUBJECT TO REGULATION BY
THE COMMISSION. 

"IN MEETING THIS RESPONSIBILITY, THE DEPARTMENT MAINTAINS A
COMPREHENSIVE FILE OF STATISTICAL, FINANCIAL, AND ACCOUNTING DATA IN
THE FORM OF ANNUAL, QUARTERLY, AND MONTHLY REPORTS SUBMITTED BY THE
VARIOUS COMPANIES.  IT MAINTAINS A CONTINUOUS EXAMINATION OF THESE
REPORTS AND CONDUCTS CONTINUING FIELD AUDITS ON THE COMPANY PREMISES TO
VERIFY THE ACCURACY . . . TO DETERMINE THE COMPLIANCE OF THE BASIC
ACCOUNTING RECORDS WITH THE UNIFORM SYSTEM OF ACCOUNTS PRESCRIBED IN
THE COMMISSION'S RULES AND REGULATIONS." 

/3/  PUBLIC UTILITIES COMM'N V. ATTLEBORO STEAM & ELECTRIC CO., 273
U.S. 83 (1927), HELD THAT EVEN ABSENT FEDERAL LEGISLATION THE COMMERCE
CLAUSE PRECLUDED STATE RATE REGULATION OF SALES OF ENERGY MADE BY A
RHODE ISLAND PRODUCER OF ELECTRICITY TO A MASSACHUSETTS DISTRIBUTOR. 
THUS, ONE PURPOSE OF THE ACT WAS TO FILL THE "ATTLEBORO GAP" IN RATE
REGULATION. 

/4/  INASMUCH AS VIRTUALLY EVERY PRIVATELY OWNED UTILITY IN THE
UNITED STATES (SAVE THOSE IN TEXAS) IS INTERWOVEN WITH A GRID WHICH AT
SOME POINT INTERSECTS A STATE BOUNDARY, THE COMMISSION'S COMMINGLED
TRACING ASSUMPTION WILL EFFECTIVELY ELIMINATE ELECTRIC UTILITY
REGULATION BY STATES.  IN LIGHT OF THE CONGRESSIONAL INTENT TO AVOID
THIS OUTCOME THE COURT HAS PLACED PERHAPS EXCESSIVE RELIANCE ON THE
DOCTRINE OF JUDICIAL DEFERENCE TO AGENCY EXPERTISE. 

SAMUEL HUNTINGTON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, GORDON GOOCH, AND DREXEL D.
JOURNEY. 

JEFFERSON D. GILLER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE LEON JAWORSKI, JAY W. ELSTON, HARRY A. POTH, JR., AND
RICHARD M. MERRIMAN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY GEORGE SPIEGEL
AND MELVIN RICHTER FOR THE GAINESVILLE UTILITIES DEPARTMENT ET AL., AND
BY NORTHCUTT ELY FOR THE AMERICAN PUBLIC POWER ASSN.
..END :













LEGO V. TWOMEY, 404 U.S. 477 


       LEGO V. TWOMEY, WARDEN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 70-5037.  ARGUED NOVEMBER 11, 1971-- DECIDED JANUARY
12,

           1972 


FOLLOWING A PRETRIAL SUPPRESSION HEARING AT WHICH CONFLICTING
EVIDENCE WAS PRESENTED AS TO THE VOLUNTARINESS OF A CONFESSION THAT
PETITIONER HAD GIVEN THE POLICE, THE TRIAL JUDGE, PRESUMABLY APPLYING
THE ILLINOIS PREPONDERANCE-OF-THE-EVIDENCE STANDARD, HELD THE
CONFESSION ADMISSIBLE, AND IT WAS INTRODUCED INTO EVIDENCE AT THE
TRIAL, WHICH RESULTED IN PETITIONER'S CONVICTION.  THE JUDGE HAD
INSTRUCTED THE JURY AS TO THE PROSECUTION'S BURDEN OF PROVING GUILT BUT
DID NOT INSTRUCT THE JURY HAD TO FIND THE CONFESSION VOLUNTARY BEFORE
IT COULD BE USED IN REACHING ITS VERDICT.  IN A HABEAS CORPUS
PROCEEDING PETITIONER CHALLENGED HIS CONVICTION.  THE DISTRICT COURT
DENIED RELIEF, AND THE COURT OF APPEALS AFFIRMED.  PETITIONER CONTENDS,
RELYING UPON IN RE WINSHIP, 397 U.S. 358, THAT THE TRIAL JUDGE SHOULD
HAVE FOUND THE CONFESSION VOLUNTARY BEYOND A REASONABLE DOUBT BEFORE
ADMITTING IT INTO EVIDENCE, OR, ALTERNATIVELY, THAT THE ADMISSIBILITY
OF THE CONFESSION AS EVIDENCE IN A CRIMINAL TRIAL (QUITE APART FROM ITS
PROBATIVE VALUE) HAD TO BE DETERMINED BY A REASONABLE-DOUBT STANDARD TO
PROTECT THE VALUES THAT EXCLUSIONARY RULES ARE DESIGNED TO SERVE. 
PETITIONER ALSO URGES THAT, EVEN THOUGH THE TRIAL JUDGE RULED ON HIS
COERCION CLAIM, HE WAS ENTITLED UNDER DUNCAN V. LOUISIANA, 391 U.S.
145, TO HAVE THE JURY DECIDE THAT ISSUE ANEW.  HELD: 

1.  THE HEARING ON THE VOLUNTARINESS OF A CONFESSION REQUIRED BY
THIS COURT'S DECISION IN JACKSON V. DENNO, 378 U.S. 368, IS NOT
DESIGNED TO IMPLEMENT THE PRESUMPTION OF INNOCENCE AND ENHANCE THE
RELIABILITY OF JURY VERDICTS, BUT TO PREVENT THE USE OF A COERCED
CONFESSION AS VIOLATIVE OF DUE PROCESS QUITE APART FROM ITS TRUTH OR
FALSITY.  CONSEQUENTLY, DETERMINING THE ADMISSIBILITY OF A CONFESSION
BY A PREPONDERANCE OF THE EVIDENCE IS NOT INCONSISTENT WITH THE MANDATE
OF IN RE WINSHIP, SUPRA.  PP. 482-487. 

2.  PETITIONER HAS NOT DEMONSTRATED THAT ADMISSIBILITY RULINGS BASED
ON THE PREPONDERANCE-OF-EVIDENCE STANDARD ARE UNRELIABLE OR THAT
IMPOSITION OF ANY HIGHER STANDARD UNDER EXPANDED EXCLUSIONARY RULES
WOULD BE SUFFICIENTLY PRODUCTIVE TO OUTWEIGH THE PUBLIC INTEREST IN
HAVING PROBATIVE EVIDENCE AVAILABLE TO JURIES.  PP. 487-489. 

3.  THE PROCEDURE FOLLOWED HERE COMPORTED WITH THE REQUIREMENTS OF
JACKSON, SUPRA, AND PETITIONER WAS NOT ENTITLED TO HAVE THE
VOLUNTARINESS ISSUE WHICH HAD BEEN RESOLVED BY THE TRIAL JUDGE ALSO
SUBMITTED TO A JURY FOR ITS SEPARATE CONSIDERATION.  NOR DID DUNCAN,
SUPRA, CHANGE THE RULE THAT DETERMINING THE ADMISSIBILITY OF EVIDENCE
IS A FUNCTION OF THE COURT RATHER THAN OF THE JURY.  PP. 489-490. 

AFFIRMED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART AND BLACKMUN, JJ., JOINED.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED, POST,
P. 490.  POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION
OR DECISION OF THE CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN 1964 THIS COURT HELD THAT A CRIMINAL DEFENDANT WHO CHALLENGES THE
VOLUNTARINESS OF A CONFESSION MADE TO OFFICIALS AND SOUGHT TO BE USED
AGAINST HIM AT HIS TRIAL HAS A DUE PROCESS RIGHT TO A RELIABLE
DETERMINATION THAT THE CONFESSION WAS IN FACT VOLUNTARILY GIVEN AND NOT
THE OUTCOME OF COERCION WHICH THE CONSTITUTION FORBIDS.  JACKSON V.
DENNO, 378 U.S. 368.  WHILE OUR DECISION MADE PLAIN THAT ONLY VOLUNTARY
CONFESSIONS MAY BE ADMITTED AT THE TRIAL OF GUILT OR INNOCENCE, WE DID
NOT THEN ANNOUNCE, OR EVEN SUGGEST, THAT THE FACTFINDER AT A COERCION
HEARING NEED JUDGE VOLUNTARINESS WITH REFERENCE TO AN ESPECIALLY SEVERE
STANDARD OF PROOF.  NEVERTHELESS, SINCE JACKSON, STATE AND FEDERAL
COURTS HAVE ADDRESSED THEMSELVES TO THE ISSUE WITH A CONSIDERABLE
VARIETY OF OPINIONS.  /1/  WE GRANTED CERTIORARI IN THIS CASE TO
RESOLVE THE QUESTION.  401 U.S. 992 (1971). 

PETITIONER LEGO WAS CONVICTED OF ARMED ROBBERY IN 1961 AFTER A JURY
TRIAL IN SUPERIOR COURT, COOK COUNTY, ILLINOIS.  THE COURT SENTENCED
HIM TO PRISON FOR 25 TO 50 YEARS.  THE EVIDENCE INTRODUCED AGAINST LEGO
AT TRIAL INCLUDED A CONFESSION HE HAD MADE TO POLICE AFTER ARREST AND
WHILE IN CUSTODY AT THE STATION HOUSE.  PRIOR TO TRIAL LEGO SOUGHT TO
HAVE THE CONFESSION SUPPRESSED.  HE DID NOT DENY MAKING IT BUT DID
CHALLENGE THAT HE HAD DONE SO VOLUNTARILY.  THE TRIAL JUDGE CONDUCTED A
HEARING, OUT OF THE PRESENCE OF THE JURY, AT WHICH LEGO TESTIFIED THAT
POLICE HAD BEATEN HIM ABOUT THE HEAD AND NECK WITH A GUN BUTT.  HIS
EXPLANATION OF THIS TREATMENT WAS THAT THE LOCAL POLICE CHIEF, A
NEIGHBOR AND FORMER CLASSMATE OF THE ROBBERY VICTIM, HAD SOUGHT REVENGE
UPON HIM.  LEGO INTRODUCED INTO EVIDENCE A PHOTOGRAPH THAT HAD BEEN
TAKEN OF HIM AT THE COUNTY JAIL ON THE DAY AFTER HIS ARREST.  THE
PHOTOGRAPH SHOWED THAT PETITIONER'S FACE HAD BEEN SWOLLEN AND HAD
TRACES OF BLOOD ON IT.  LEGO ADMITTED THAT HIS FACE HAD BEEN SCRATCHED
IN A SCUFFLE WITH THE ROBBERY VICTIM BUT MAINTAINED THAT THE ENCOUNTER
DID NOT EXPLAIN THE CONDITION SHOWN IN THE PHOTOGRAPH.  THE POLICE
CHIEF AND FOUR OFFICERS ALSO TESTIFIED.  THEY DENIED EITHER BEATING OR
THREATENING PETITIONER AND DISCLAIMED KNOWLEDGE THAT ANY OTHER OFFICER
HAD DONE SO.  THE TRIAL JUDGE RESOLVED THIS CREDIBILITY PROBLEM IN
FAVOR OF THE POLICE AND RULED THE CONFESSION ADMISSIBLE.  /2/  AT
TRIAL, LEGO TESTIFIED IN HIS OWN BEHALF.  ALTHOUGH HE DID NOT DISPUTE
THE TRUTH OF THE CONFESSION DIRECTLY, HE DID TELL HIS VERSION OF THE
EVENTS THAT HAD TRANSPIRED AT THE POLICE STATION.  THE TRIAL JUDGE
INSTRUCTED THE JURY AS TO THE PROSECUTION'S BURDEN OF PROVING GUILT. 
HE DID NOT INSTRUCT THAT THE JURY WAS REQUIRED TO FIND THE CONFESSION
VOLUNTARY BEFORE IT COULD BE USED IN JUDGING GUILT OR INNOCENCE.  /3/
ON DIRECT APPEAL THE ILLINOIS SUPREME COURT AFFIRMED THE CONVICTION. 
PEOPLE V. LEGO, 32 ILL.2D 76, 203 N.E.2D 875 (1965). 

FOUR YEARS LATER PETITIONER CHALLENGED HIS CONVICTION BY SEEKING A
WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS.  HE MAINTAINED THAT THE TRIAL JUDGE
SHOULD HAVE FOUND THE CONFESSION VOLUNTARY BEYOND A REASONABLE DOUBT
BEFORE ADMITTING IT INTO EVIDENCE.  ALTHOUGH THE JUDGE HAD MADE NO
MENTION OF THE STANDARD HE USED, ILLINOIS LAW PROVIDED THAT A
CONFESSION CHALLENGED AS INVOLUNTARY COULD BE ADMITTED INTO EVIDENCE
IF, AT A HEARING OUTSIDE THE PRESENCE OF THE JURY, THE JUDGE FOUND IT
VOLUNTARY BY A PREPONDERANCE OF THE EVIDENCE.  /4/  IN THE ALTERNATIVE
PETITIONER ARGUED THAT THE VOLUNTARINESS QUESTION SHOULD ALSO HAVE BEEN
SUBMITTED TO THE JURY FOR ITS SEPARATE CONSIDERATION.  AFTER FIRST
DENYING THE WRIT FOR FAILURE TO EXHAUST STATE REMEDIES, THE DISTRICT
COURT GRANTED A REHEARING MOTION, CONCLUDED THAT LEGO HAD NO STATE
REMEDY THEN AVAILABLE TO HIM AND DENIED RELIEF ON THE MERITS.  UNITED
STATES EX REL. LEGO V. PATE, 308 F.SUPP.  38 (1970).  /5/  THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED.  /6/

        I 

PETITIONER CHALLENGES THE JUDGMENT OF THE COURT OF APPEALS ON THREE
GROUNDS.  THE FIRST IS THAT HE WAS NOT PROVED GUILTY BEYOND A
REASONABLE DOUBT AS REQUIRED BY IN RE WINSHIP, 397 U.S. 358 (1970),
BECAUSE THE CONFESSION USED AGAINST HIM AT HIS TRIAL HAD BEEN PROVED
VOLUNTARY ONLY BY A PREPONDERANCE OF THE EVIDENCE.  IMPLICIT IN THE
CLAIM IS AN ASSUMPTION THAT A VOLUNTARINESS HEARING IS DESIGNED TO
ENHANCE THE RELIABILITY OF JURY VERDICTS.  TO JUDGE WHETHER THAT IS SO
WE MUST RETURN TO JACKSON V. DENNO, 378 U.S. 368 (1964). 

IN NEW YORK PRIOR TO JACKSON, JURIES MOST OFTEN DETERMINED THE
VOLUNTARINESS OF CONFESSIONS AND HENCE WHETHER CONFESSIONS COULD BE
USED IN DECIDING GUILT OR INNOCENCE.  TRIAL JUDGES WERE REQUIRED TO
MAKE AN INITIAL DETERMINATION AND COULD EXCLUDE A CONFESSION, BUT ONLY
IF IT COULD NOT UNDER ANY CIRCUMSTANCES BE DEEMED VOLUNTARY.  /7/  WHEN
VOLUNTARINESS WAS FAIRLY DEBATABLE, EITHER BECAUSE A DISPUTE OF FACT
EXISTED OR BECAUSE REASONABLE MEN COULD HAVE DRAWN DIFFERING INFERENCES
FROM UNDISPUTED FACTS, THE QUESTION WHETHER THE CONFESSION VIOLATED DUE
PROCESS WAS FOR THE JURY.  THIS MEANT THE CONFESSION WAS INTRODUCED AT
THE TRIAL ITSELF.  IF EVIDENCE CHALLENGING ITS VOLUNTARINESS WERE
ADDUCED, THE JURY WAS INSTRUCTED FIRST TO PASS UPON VOLUNTARINESS AND,
IF IT FOUND THE CONFESSION INVOLUNTARY, IGNORE IT IN DETERMINING
GUILT.  IF, ON THE OTHER HAND, THE CONFESSION WERE FOUND TO BE
VOLUNTARY, THE JURY WAS THEN FREE TO CONSIDER ITS TRUTH OR FALSITY AND
GIVE THE CONFESSION AN APPROPRIATE WEIGHT IN JUDGING GUILT OR
INNOCENCE. 

WE CONCLUDED THAT THE NEW YORK PROCEDURE WAS CONSTITUTIONALLY
DEFECTIVE BECAUSE AT NO POINT ALONG THE WAY DID A CRIMINAL DEFENDANT
RECEIVE A CLEAR-CUT DETERMINATION THAT THE CONFESSION USED AGAINST HIM
WAS IN FACT VOLUNTARY.  THE TRIAL JUDGE WAS NOT ENTITLED TO EXCLUDE A
CONFESSION MERELY BECAUSE HE HIMSELF WOULD HAVE FOUND IT INVOLUNTARY,
AND, WHILE WE RECOGNIZE THAT THE JURY WAS EMPOWERED TO PERFORM THAT
FUNCTION, WE DOUBTED IT COULD DO SO RELIABLY.  PRECISELY BECAUSE
CONFESSIONS OF GUILT, WHETHER COERCED OR FREELY GIVEN, MAY BE TRUTHFUL
AND POTENT EVIDENCE, WE DID NOT BELIEVE A JURY COULD BE CALLED UPON TO
IGNORE THE PROBATIVE VALUE OF A TRUTHFUL BUT COERCED CONFESSION; IT WAS
ALSO LIKELY, WE THOUGHT, THAT IN JUDGING VOLUNTARINESS ITSELF THE JURY
WOULD BE INFLUENCED BY THE RELIABILITY OF A CONFESSION IT CONSIDERED AN
ACCURATE ACCOUNT OF THE FACTS.  "IT IS NOW AXIOMATIC," WE SAID, 

"THAT A DEFENDANT IN A CRIMINAL CASE IS DEPRIVED OF DUE PROCESS OF
LAW IF HIS CONVICTION IS FOUNDED, IN WHOLE OR IN PART, UPON AN
INVOLUNTARY CONFESSION, WITHOUT REGARD FOR THE TRUTH OR FALSITY OF THE
CONFESSION, ROGERS V. RICHMOND, 365 U.S. 534, AND EVEN THOUGH THERE IS
AMPLE EVIDENCE ASIDE FROM THE CONFESSION TO SUPPORT THE CONVICTION. 
MALINSKI V. NEW YORK, 324 U.S. 401; STROBLE V. CALIFORNIA, 343 U.S.
181; PAYNE V. ARKANSAS, 356 U.S. 560.  EQUALLY CLEAR IS THE DEFENDANT'S
CONSTITUTIONAL RIGHT AT SOME STAGE IN THE PROCEEDINGS TO OBJECT TO THE
USE OF THE CONFESSION AND TO HAVE A FAIR HEARING AND A RELIABLE
DETERMINATION ON THE ISSUE OF VOLUNTARINESS, A DETERMINATION
UNINFLUENCED BY THE TRUTH OR FALSITY OF THE CONFESSION.  ROGERS V.
RICHMOND, SUPRA."  /8/ 

WE DID NOT THINK IT NECESSARY, OR EVEN APPROPRIATE IN JACKSON TO
ANNOUNCE THAT PROSECUTORS WOULD BE REQUIRED TO MEET A PARTICULAR BURDEN
OF PROOF IN A JACKSON HEARING HELD BEFORE THE TRIAL JUDGE.  /9/
INDEED, THE THEN-ESTABLISHED DUTY TO DETERMINE VOLUNTARINESS HAD NOT
BEEN FRAMED IN TERMS OF A BURDEN OF PROOF, /10/  NOR HAS IT BEEN SINCE
JACKSON WAS DECIDED.  /11/  WE COULD FAIRLY ASSUME THEN, AS WE CAN NOW,
THAT A JUDGE WOULD ADMIT INTO EVIDENCE ONLY THOSE CONFESSIONS THAT HE
RELIABLY FOUND, AT LEAST BY A PREPONDERANCE OF THE EVIDENCE, HAD BEEN
MADE VOLUNTARILY. 

WE NOTED IN JACKSON THAT THERE MAY BE A RELATIONSHIP BETWEEN THE
INVOLUNTARINESS OF A CONFESSION AND ITS UNRELIABILITY.  /12/  BUT OUR
DECISION WAS NOT BASED IN THE SLIGHTEST ON THE FEAR THAT JURIES MIGHT
MISJUDGE THE ACCURACY OF CONFESSIONS AND ARRIVE AT ERRONEOUS
DETERMINATIONS OF GUILT OR INNOCENCE.  THAT CASE WAS NOT AIMED AT
REDUCING THE POSSIBILITY OF CONVICTING INNOCENT MEN. 

QUITE THE CONTRARY, WE FEARED THAT THE RELIABILITY AND TRUTHFULNESS
OF EVEN COERCED CONFESSIONS COULD IMPERMISSIBLY INFLUENCE A JURY'S
JUDGMENT AS TO VOLUNTARINESS.  THE USE OF COERCED CONFESSIONS, WHETHER
TRUE OR FALSE, IS FORBIDDEN BECAUSE THE METHOD USED TO EXTRACT THEM
OFFENDS CONSTITUTIONAL PRINCIPLES.  ROGERS V. RICHMOND, 365 U.S. 534,
540-541 (1961).  /13/  THE PROCEDURE WE ESTABLISHED IN JACKSON WAS
DESIGNED TO SAFEGUARD THE RIGHT OF AN INDIVIDUAL, ENTIRELY APART FROM
HIS GUILT OR INNOCENCE, NOT TO BE COMPELLED TO CONDEMN HIMSELF BY HIS
OWN UTTERANCES.  NOTHING IN JACKSON QUESTIONED THE PROVINCE OR CAPACITY
OF JURIES TO ASSESS THE TRUTHFULNESS OF CONFESSIONS.  NOTHING IN THAT
OPINION TOOK FROM THE JURY ANY EVIDENCE RELATING TO THE ACCURACY OR
WEIGHT OF CONFESSIONS ADMITTED INTO EVIDENCE.  A DEFENDANT HAS BEEN AS
FREE SINCE JACKSON AS HE WAS BEFORE TO FAMILIARIZE A JURY WITH
CIRCUMSTANCES THAT ATTEND THE TAKING OF HIS CONFESSION, INCLUDING FACTS
BEARING UPON ITS WEIGHT AND VOLUNTARINESS.  /14/  IN LIKE MEASURE, OF
COURSE, JURIES HAVE BEEN AT LIBERTY TO DISREGARD CONFESSIONS THAT ARE
INSUFFICIENTLY CORROBORATED OR OTHERWISE DEEMED UNWORTHY OF BELIEF. 

SINCE THE PURPOSE THAT A VOLUNTARINESS HEARING IS DESIGNED TO SERVE
HAS NOTHING WHATEVER TO DO WITH IMPROVING THE RELIABILITY OF JURY
VERDICTS, WE CANNOT ACCEPT THE CHARGE THAT JUDGING THE ADMISSIBILITY OF
A CONFESSION BY A PREPONDERANCE OF THE EVIDENCE UNDERMINES THE MANDATE
OF IN RE WINSHIP, 397 U.S. 358 (1970).  OUR DECISION IN WINSHIP WAS NOT
CONCERNED WITH STANDARDS FOR DETERMINING THE ADMISSIBILITY OF EVIDENCE
OR WITH THE PROSECUTION'S BURDEN OF PROOF AT A SUPPRESSION HEARING WHEN
EVIDENCE IS CHALLENGED ON CONSTITUTIONAL GROUNDS.  WINSHIP WENT NO
FURTHER THAN TO CONFIRM THE FUNDAMENTAL RIGHT THAT PROTECTS "THE
ACCUSED AGAINST CONVICTION EXCEPT UPON PROOF BEYOND A REASONABLE DOUBT
OF EVERY FACT NECESSARY TO CONSTITUTE THE CRIME WITH WHICH HE IS
CHARGED."  ID., AT 364.  A HIGH STANDARD OF PROOF IS NECESSARY, WE
SAID, TO ENSURE AGAINST UNJUST CONVICTIONS BY GIVING SUBSTANCE TO THE
PRESUMPTION OF INNOCENCE.  ID., AT 363.  A GUILTY VERDICT IS NOT
RENDERED LESS RELIABLE OR LESS CONSONANT WITH WINSHIP SIMPLY BECAUSE
THE ADMISSIBILITY OF A CONFESSION IS DETERMINED BY A LESS STRINGENT
STANDARD.  PETITIONER DOES NOT MAINTAIN THAT EITHER HIS CONFESSION OR
ITS VOLUNTARINESS IS AN ELEMENT OF THE CRIME WITH WHICH HE WAS
CHARGED.  HE DOES NOT CHALLENGE THE CONSTITUTIONALITY OF THE STANDARD
BY WHICH THE JURY WAS INSTRUCTED TO DECIDE HIS GUILT OR INNOCENCE; NOR
DOES HE QUESTION THE SUFFICIENCY OF THE EVIDENCE THAT REACHED THE JURY
TO SATISFY THE PROPER STANDARD OF PROOF.  PETITIONER'S RIGHTS UNDER
WINSHIP HAVE NOT BEEN VIOLATED.  /15/

        II 

EVEN CONCEDING THAT WINSHIP IS INAPPLICABLE BECAUSE THE PURPOSE OF A
VOLUNTARINESS HEARING IS NOT TO IMPLEMENT THE PRESUMPTION OF INNOCENCE,
PETITIONER PRESSES FOR REVERSAL ON THE ALTERNATIVE GROUND THAT EVIDENCE
OFFERED AGAINST A DEFENDANT AT A CRIMINAL TRIAL AND CHALLENGED ON
CONSTITUTIONAL GROUNDS MUST BE DETERMINED ADMISSIBLE BEYOND A
REASONABLE DOUBT IN ORDER TO GIVE ADEQUATE PROTECTION TO THOSE VALUES
THAT EXCLUSIONARY RULES ARE DESIGNED TO SERVE.  JACKSON V. DENNO,
SUPRA, AN OFFSPRING OF BROWN V. MISSISSIPPI, 297 U.S. 278 (1936),
REQUIRES JUDICIAL RULINGS ON VOLUNTARINESS PRIOR TO ADMITTING
CONFESSIONS.  MIRANDA V. ARIZONA, 384 U.S. 436 (1966), EXCLUDES
CONFESSIONS FLOWING FROM CUSTODIAL INTERROGATIONS UNLESS ADEQUATE
WARNINGS WERE ADMINISTERED AND A WAIVER WAS OBTAINED.  WEEKS V. UNITED
STATES, 232 U.S. 383 (1914), AND MAPP V. OHIO, 367 U.S. 643 (1961),
MAKE IMPERMISSIBLE THE INTRODUCTION OF EVIDENCE OBTAINED IN VIOLATION
OF A DEFENDANT'S FOURTH AMENDMENT RIGHTS.  IN EACH INSTANCE, AND
WITHOUT REGARD TO ITS PROBATIVE VALUE, EVIDENCE IS KEPT FROM THE TRIER
OF GUILT OR INNOCENCE FOR REASONS WHOLLY APART FROM ENHANCING THE
RELIABILITY OF VERDICTS.  THESE INDEPENDENT VALUES, IT IS URGED,
THEMSELVES REQUIRE A STRICTER STANDARD OF PROOF IN JUDGING
ADMISSIBILITY. 

THE ARGUMENT IS STRAIGHTFORWARD AND HAS APPEAL.  BUT WE ARE
UNCONVINCED THAT MERELY EMPHASIZING THE IMPORTANCE OF THE VALUES SERVED
BY EXCLUSIONARY RULES IS ITSELF SUFFICIENT DEMONSTRATION THAT THE
CONSTITUTION ALSO REQUIRES ADMISSIBILITY TO BE PROVED BEYOND REASONABLE
DOUBT.  /16/  EVIDENCE OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT
HAS BEEN EXCLUDED FROM FEDERAL CRIMINAL TRIALS FOR MANY YEARS.  WEEKS
V. UNITED STATES, SUPRA.  THE SAME IS TRUE OF COERCED CONFESSIONS
OFFERED IN EITHER FEDERAL OR STATE TRIALS.  BRAM V. UNITED STATES, 168
U.S. 532 (1897); BROWN V. MISSISSIPPI, SUPRA.  BUT, FROM OUR EXPERIENCE
OVER THIS PERIOD OF TIME NO SUBSTANTIAL EVIDENCE HAS ACCUMULATED THAT
FEDERAL RIGHTS HAVE SUFFERED FROM DETERMINING ADMISSIBILITY BY A
PREPONDERANCE OF THE EVIDENCE.  PETITIONER OFFERS NOTHING TO SUGGEST
THAT ADMISSIBILITY RULINGS HAVE BEEN UNRELIABLE OR OTHERWISE WANTING IN
QUALITY BECAUSE NOT BASED ON SOME HIGHER STANDARD.  WITHOUT GOOD CAUSE,
WE ARE UNWILLING TO EXPAND CURRENTLY APPLICABLE EXCLUSIONARY RULES BY
ERECTING ADDITIONAL BARRIERS TO PLACING TRUTHFUL AND PROBATIVE EVIDENCE
BEFORE STATE JURIES AND BY REVISING THE STANDARDS APPLICABLE IN
COLLATERAL PROCEEDINGS.  SOUND REASON FOR MOVING FURTHER IN THIS
DIRECTION HAS NOT BEEN OFFERED HERE NOR DO WE DISCERN ANY AT THE
PRESENT TIME.  THIS IS PARTICULARLY TRUE SINCE THE EXCLUSIONARY RULES
ARE VERY MUCH AIMED AT DETERRING LAWLESS CONDUCT BY POLICE AND
PROSECUTION AND IT IS VERY DOUBTFUL THAT ESCALATING THE PROSECUTION'S
BURDEN OF PROOF IN FOURTH AND FIFTH AMENDMENT SUPPRESSION HEARINGS
WOULD BE SUFFICIENTLY PRODUCTIVE IN THIS RESPECT TO OUTWEIGH THE PUBLIC
INTEREST IN PLACING PROBATIVE EVIDENCE BEFORE JURIES FOR THE PURPOSE OF
ARRIVING AT TRUTHFUL DECISIONS ABOUT GUILT OR INNOCENCE. 

TO REITERATE WHAT WE SAID IN JACKSON:  WHEN A CONFESSION CHALLENGED
AS INVOLUNTARY IS SOUGHT TO BE USED AGAINST A CRIMINAL DEFENDANT AT HIS
TRIAL, HE IS ENTITLED TO A RELIABLE AND CLEAR-CUT DETERMINATION THAT
THE CONFESSION WAS IN FACT VOLUNTARILY RENDERED.  THUS, THE PROSECUTION
MUST PROVE AT LEAST BY A PREPONDERANCE OF THE EVIDENCE THAT THE
CONFESSION WAS VOLUNTARY.  OF COURSE, THE STATES ARE FREE, PURSUANT TO
THEIR OWN LAW, TO ADOPT A HIGHER STANDARD.  THEY MAY INDEED DIFFER AS
TO THE APPROPRIATE RESOLUTION OF THE VALUES THEY FIND AT STAKE.  /17/

        III 

WE ALSO REJECT PETITIONER'S FINAL CONTENTION THAT, EVEN THOUGH THE
TRIAL JUDGE RULED ON HIS COERCION CLAIM, HE WAS ENTITLED TO HAVE THE
JURY DECIDE THE CLAIM ANEW.  TO THE EXTENT THIS ARGUMENT ASSERTS THAT
THE JUDGE'S DETERMINATION WAS INSUFFICIENTLY RELIABLE, IT IS NO MORE
PERSUASIVE THAN PETITIONER'S OTHER CONTENTIONS.  TO THE EXTENT THE
POSITION ASSUMES THAT A JURY IS BETTER SUITED THAN A JUDGE TO DETERMINE
VOLUNTARINESS, IT QUESTIONS THE BASIC ASSUMPTIONS OF JACKSON V. DENNO;
IT ALSO IGNORES THAT JACKSON NEITHER RAISED ANY QUESTION ABOUT THE
CONSTITUTIONAL VALIDITY OF THE SO-CALLED ORTHODOX RULE FOR JUDGING THE
ADMISSIBILITY OF CONFESSIONS NOR EVEN SUGGESTED THAT THE CONSTITUTION
REQUIRES SUBMISSION OF VOLUNTARINESS CLAIMS TO A JURY AS WELL AS A
JUDGE.  FINALLY, DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), WHICH MADE
THE SIXTH AMENDMENT RIGHT TO TRIAL BY JURY APPLICABLE TO THE STATES,
DID NOT PURPORT TO CHANGE THE NORMAL RULE THAT THE ADMISSIBILITY OF
EVIDENCE IS A QUESTION FOR THE COURT RATHER THAN THE JURY.  NOR DID
THAT DECISION REQUIRE THAT BOTH JUDGE AND JURY PASS UPON THE
ADMISSIBILITY OF EVIDENCE WHEN CONSTITUTIONAL GROUNDS ARE ASSERTED FOR
EXCLUDING IT.  WE ARE NOT DISPOSED TO IMPOSE AS A CONSTITUTIONAL
REQUIREMENT A PROCEDURE WE HAVE FOUND WANTING MERELY TO AFFORD
PETITIONER A SECOND FORUM FOR LITIGATING HIS CLAIM. 

THE DECISION OF THE COURT OF APPEALS IS

              AFFIRMED. 

MR. JUSTICE POWELL, AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  STATE COURTS THAT HAVE CONSIDERED THE QUESTION SINCE JACKSON
HAVE ADOPTED A VARIETY OF STANDARDS, MOST OF THEM FOUNDED UPON STATE
LAW.  MANY HAVE SANCTIONED A STANDARD OF PROOF LESS STRICT THAN BEYOND
A REASONABLE DOUBT, INCLUDING PROOF OF VOLUNTARINESS BY A PREPONDERANCE
OF THE EVIDENCE OR TO THE SATISFACTION OF THE COURT OR PROOF OF
VOLUNTARINESS IN FACT.  E.G., DUNCAN V. STATE, 278 ALA. 145, 176 SO.2D
840 (1965); STATE V. DILLON, 93 IDAHO 698, 471 P.2D 553 (1970), CERT.
DENIED, 401 U.S. 942 (1971); PEOPLE V. HARPER, 36 ILL.2D 398, 223
N.E.2D 841 (1967); STATE V. MILOW, 199 KAN. 576, 433 P.2D 538 (1967);
BARNHART V. STATE, 5 MD.APP.  222, 246 A.2D 280 (1968); COMMONWEALTH V.
WHITE, 353 MASS. 409, 232 N.E.2D 335 (1967); STATE V. NOLAN, 423 S.W.2D
815 (MO. 1968); STATE V. WHITE, 146 MONT. 226, 405 P.2D 761 (1965),
CERT. DENIED, 384 U.S. 1023 (1966); STATE V. BREWTON, 238 ORE.  590,
395 P.2D 874 (1964); COMMONWEALTH EX REL. BUTLER V. RUNDLE, 429 PA.
141, 239 A.2D 426 (1968); MONTS V. STATE, 218 TENN. 31, 400 S.W.2D 722
(1966); STATE V. DAVIS, 73 WASH.2D 271, 438 P.2D 185 (1968). 

OTHER STATES, USING STATE LAW OR NOT SPECIFYING A BASIS, REQUIRE
PROOF BEYOND A REASONABLE DOUBT.  E.G., STATE V. RAGSDALE, 249 LA. 420,
187 SO.2D 427 (1966), CERT. DENIED, 385 U.S. 1029 (1967); STATE V.
KEISER, 274 MINN. 265, 143 N.W.2D 75 (1966); STATE V. YOUGH, 49 N.J.
587, 231 A.2D 598 (1967); PEOPLE V. HUNTLEY, 15 N.Y.2D 72, 204 N.E.2D
179 (1965); STATE V. THUNDERSHIELD, 83 S.D. 414, 160 N.W.2D 408 (1968);
STATE EL REL GOODCHILD V. BURKE, 27 WIS.2D 244, 133 N.W.2D 753 (1965),
CERT. DENIED, 384 U.S. 1017 (1966). 

TWO FEDERAL COURTS HAVE HELD AS AN EXERCISE OF SUPERVISORY POWER
THAT VOLUNTARINESS MUST BE PROVED BEYOND A REASONABLE DOUBT.  RALPH V.
WARDEN, 438 F.2D 786, 793 (CA4 1970), CLARIFYING UNITED STATES V.
INMAN, 352 F.2D 954 (CA4 1965); PEA V. UNITED STATES, 130 U.S.APP.D.C.
66, 397 F.2D 627 (1967); CF. UNITED STATES V. SCHIPANI, 289 F.SUPP.  43
(EDNY 1968), AFF'D, 414 F.2D 1262 (CA2 1969), CERT. DENIED, 397 U.S.
922 (1970), REQUIRING THE GOVERNMENT TO PROVE BEYOND A REASONABLE DOUBT
THAT CERTAIN EVIDENCE WAS NOT TAINTED BY VIOLATION OF THE FOURTH
AMENDMENT. 

/2/  IN RULING THE CONFESSION ADMISSIBLE, THE JUDGE STATED: 

"THE PETITIONER HAS ADMITTED UNDER OATH HE HAD A STRUGGLE WITH THE
COMPLAINING WITNESS OVER THE GUN; HE WAS WOUNDED, OBTAINED A FACIAL
WOUND.  THE OFFICERS TESTIFIED HE WAS BLOODY AT THE TIME HE WAS
ARRESTED. 

"I DON'T BELIEVE THE DEFENDANT'S TESTIMONY AT ALL THAT HE WAS BEATEN
UP BY THE POLICE.  THE CONDITION HE IS IN IS WELL EXPLAINED BY THE
DEFENDANT HIMSELF." 

/3/  ILLINOIS FOLLOWED WHAT WE DESCRIBED IN JACKSON V. DENNO, 378
U.S. 368 (1964), AS "THE ORTHODOX RULE, UNDER WHICH THE JUDGE HIMSELF
SOLELY AND FINALLY DETERMINES THE VOLUNTARINESS OF THE CONFESSION . . .
. "  ID., AT 378.  WHILE THE PROCEDURES OF ALL THE STATES COULD NOT BE
NEATLY CLASSIFIED, WE NOTED THAT SOME FOLLOWED THE MASSACHUSETTS
PROCEDURE WHEREBY THE JUDGE HIMSELF FIRST RESOLVES EVIDENTIARY
CONFLICTS AND DETERMINES WHETHER A CONFESSION IS IN FACT VOLUNTARY.  IF
HE IS UNABLE SO TO CONCLUDE, THE CONFESSION MAY NOT BE ADMITTED INTO
EVIDENCE.  IF JUDGED VOLUNTARY AND THEREFORE ADMISSIBLE, THE JURY MUST
ALSO DETERMINE THE COERCION ISSUE AND IS INSTRUCTED TO IGNORE A
CONFESSION IT FINDS INVOLUNTARY.  ID., AT 378 N. 8.  OTHER STATES HAD
ADOPTED THE NEW YORK PROCEDURE AT ISSUE IN JACKSON.  OUR DECISION IN
JACKSON CAST NO DOUBT UPON THE ORTHODOX AND MASSACHUSETTS PROCEDURES
BUT DID CALL INTO QUESTION THE PRACTICE OF EVERY STATE THAT DID NOT
CLEARLY FOLLOW ONE OF THESE PROCEDURES.  A THOROUGH TABULATION OF WHAT
STATES DID IN THE WAKE OF JACKSON APPEARS IN 3 J.WIGMORE, EVIDENCE 585
593 (J. CHADBOURN REV. 1970). 

/4/  PEOPLE V. WAGONER, 8 ILL.2D 188, 133 N.E.2D 24 (1956); PEOPLE
V. THOMLINSON, 400 ILL. 555, 81 N.E.2D 434 (1948). 

/5/  RESPONDENT MAKES NO CONTENTION HERE THAT PETITIONER EITHER
WAIVED THE RIGHT TO ADJUDICATE HIS FEDERAL CLAIMS OR DELIBERATELY
BYPASSED STATE PROCEDURES FOR TESTING THOSE CLAIMS.  CF. FAY V. NOIA,
372 U.S. 391, 439 (1963). 

/6/  THE SEVENTH CIRCUIT'S AFFIRMANCE IS UNREPORTED.  UNITED STATES
EX REL. LEGO V. PATE, NO. 18313 (CA7 OCT. 8, 1970). 

/7/  A MORE THOROUGH DESCRIPTION OF THE NEW YORK PROCEDURE IS FOUND
IN JACKSON V. DENNO, 378 U.S.,AT 377-391. 

/8/  JACKSON V. DENNO, 378 U.S.,AT 376-377. 

/9/  "JUDGE" IS USED HERE AND THROUGHOUT THE OPINION TO MEAN A
FACTFINDER, WHETHER TRIAL JUDGE OR JURY, AT A VOLUNTARINESS HEARING. 
THE PROSCRIPTION AGAINST PERMITTING THE JURY THAT PASSES UPON GUILT OR
INNOCENCE TO JUDGE VOLUNTARINESS IN THE SAME PROCEEDING DOES NOT
PRECLUDE THE STATES FROM IMPANELING A SEPARATE JURY TO DETERMINE
VOLUNTARINESS.  JACKSON V. DENNO, 378 U.S.,AT 391 N. 19. 

/10/  SEE, E.G., HAYNES V. WASHINGTON, 373 U.S. 503 (1963); SPANO V.
NEW YORK, 360 U.S. 315 (1959); PAYNE V. ARKANSAS, 356 U.S. 560 (1958). 

/11/  SEE, E.G., FRAZIER V. CUPP, 394 U.S. 731 (1969); BOULDEN V.
HOLMAN, 394 U.S. 478 (1969); HARRISON V. UNITED STATES, 392 U.S. 219
(1968); GREENWALD V. WISCONSIN, 390 U.S. 519 (1968); CLEWIS V. TEXAS,
386 U.S. 707 (1967); DAVIS V. NORTH CAROLINA, 384 U.S. 737 (1966); CF.
PROCUNIER V. ATCHLEY, 400 U.S. 446 (1971). 

/12/  WE NOTED THAT COERCED CONFESSIONS ARE FORBIDDEN IN PART
BECAUSE OF THEIR "PROBABLE UNRELIABILITY."  JACKSON V. DENNO, 378
U.S.,AT 385-386.  HOWEVER, IT HAD BEEN SETTLED WHEN THIS COURT DECIDED
JACKSON THAT THE EXCLUSION OF UNRELIABLE CONFESSIONS IS NOT THE PURPOSE
THAT A VOLUNTARINESS HEARING IS DESIGNED TO SERVE.  ROGERS V. RICHMOND,
365 U.S. 534 (1961).  THE SOLE ISSUE IN SUCH A HEARING IS WHETHER A
CONFESSION WAS COERCED.  WHETHER IT BE TRUE OR FALSE IS IRRELEVANT;
INDEED, SUCH AN INQUIRY IS FORBIDDEN.  THE JUDGE MAY NOT TAKE INTO
CONSIDERATION EVIDENCE THAT WOULD INDICATE THAT THE CONFESSION, THOUGH
COMPELLED, IS RELIABLE, EVEN HIGHLY SO.  ID., AT 545.  AS DIFFICULT AS
SUCH TASKS MAY BE TO ACCOMPLISH, THE JUDGE IS ALSO DUTY-BOUND TO IGNORE
IMPLICATIONS OF RELIABILITY IN FACTS RELEVANT TO COERCION AND TO SHUT
FROM HIS MIND ANY INTERNAL EVIDENCE OF AUTHENTICITY THAT A CONFESSION
ITSELF MAY BEAR. 

/13/  IN JACKSON, 378 U.S.,AT 377-391, WE TRACED THE GENESIS OF THE
VIEW THAT DUE PROCESS FORBIDS THE USE OF COERCED CONFESSIONS, WHETHER
OR NOT RELIABLE.  THE COURT HAD DEPARTED FROM THAT VIEW IN STEIN V. NEW
YORK, 346 U.S. 156 (1953), WHOSE PREMISE WAS THAT A CONFESSION IS
EXCLUDABLE BECAUSE OF ITS INHERENT UNTRUSTWORTHINESS.  THE STEIN
PREMISE WAS REPUDIATED IN ROGERS V. RICHMOND AND ROGERS WAS REAFFIRMED
IN DAVIS V. NORTH CAROLINA, 384 U.S.,AT 739, AND JOHNSON V. NEW JERSEY,
384 U.S. 719, 729 N. 9 (1966).  THAT CASE CONTINUES TO SERVE AS THE
BASIS FOR EVALUATING COERCION CLAIMS.  SEE CASES CITED IN N. 11,
SUPRA. 

/14/  THIS IS THE COURSE THAT PETITIONER PURSUED.  CF. JACKSON V.
DENNO, 378 U.S.,AT 386 N. 13.  ALTHOUGH 18 U.S.C. 3501(A) IS
INAPPLICABLE HERE, IT IS RELEVANT TO NOTE THE PROVISIONS OF THAT

"(A) IN ANY CRIMINAL PROSECUTION BROUGHT BY THE UNITED STATES OR BY
THE DISTRICT OF COLUMBIA, A CONFESSION, AS DEFINED IN SUBSECTION (E)
HEREOF, SHALL BE ADMISSIBLE IN EVIDENCE IF IT IS VOLUNTARILY GIVEN. 
BEFORE SUCH CONFESSION IS RECEIVED IN EVIDENCE, THE TRIAL JUDGE SHALL,
OUT OF THE PRESENCE OF THE JURY, DETERMINE ANY ISSUE AS TO
VOLUNTARINESS.  IF THE TRIAL JUDGE DETERMINES THAT THE CONFESSION WAS
VOLUNTARILY MADE IT SHALL BE ADMITTED IN EVIDENCE AND THE TRIAL JUDGE
SHALL PERMIT THE JURY TO HEAR RELEVANT EVIDENCE ON THE ISSUE OF
VOLUNTARINESS AND SHALL INSTRUCT THE JURY TO GIVE SUCH WEIGHT TO THE
CONFESSION AS THE JURY FEELS IT DESERVES UNDER ALL THE CIRCUMSTANCES." 

/15/  NOTHING IS TO BE GAINED FROM RESTATING THE CONSTITUTIONAL RULE
AS REQUIRING PROOF OF GUILT BEYOND A REASONABLE DOUBT ON THE BASIS OF
CONSTITUTIONALLY OBTAINED EVIDENCE AND THEN ARGUING THAT RIGHTS UNDER
WINSHIP ARE DILUTED UNLESS ADMISSIBILITY IS GOVERNED BY A HIGH
STANDARD.  TRANSPARENTLY, THIS ASSUMES THE QUESTION AT ISSUE, WHICH IS
WHETHER A CONFESSION IS ADMISSIBLE IF FOUND VOLUNTARY BY A
PREPONDERANCE OF THE EVIDENCE.  UNITED STATES V. SCHIPANI, SUPRA, N. 1,
FOLLOWED THIS UNSATISFACTORY COURSE IN A FOURTH AMENDMENT CASE BUT
STOPPED SHORT OF BASING THE DECISION ON THE CONSTITUTION. 

/16/  IT IS NO MORE PERSUASIVE TO IMPOSE THE STRICTER STANDARD OF
PROOF AS AN EXERCISE OF SUPERVISORY POWER THAN AS A CONSTITUTIONAL
RULE.  CF. RALPH V. WARDEN, SUPRA, N. 1, CLARIFYING UNITED STATES V.
INMAN, SUPRA, N. 1; PEA V. UNITED STATES, SUPRA, N. 1. 

/17/  SEE CASES CITED IN N. 1, SUPRA. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

WHEN THE PROSECUTION, STATE OR FEDERAL, SEEKS TO PUT IN EVIDENCE AN
ALLEGEDLY INVOLUNTARY CONFESSION, ITS ADMISSIBILITY IS DETERMINED BY
THE COMMAND OF THE FIFTH AMENDMENT THAT "(NO PERSON . . . SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  DAVIS
V. NORTH CAROLINA, 384 U.S. 737, 740 (1966); MALLOY V. HOGAN, 378 U.S.
1, 7-8 (1964); BRAM V. UNITED STATES, 168 U.S. 532, 542-543 (1897). 
THIS RIGHT AGAINST COMPULSORY SELF-INCRIMINATION IS THE "ESSENTIAL
MAINSTAY" OF OUR SYSTEM OF CRIMINAL PROSECUTION, MALLOY V. HOGAN,
SUPRA, AT 7, "A SYSTEM IN WHICH THE STATE MUST ESTABLISH BY EVIDENCE
INDEPENDENTLY AND FREELY SECURED AND MAY NOT BY COERCION PROVE ITS
CHARGE AGAINST AN ACCUSED OUT OF HIS OWN MOUTH," ROGERS V. RICHMOND,
365 U.S. 534, 541 (1961).  WHAT IS THEREBY PROTECTED FROM GOVERNMENTAL
INVASION IS, QUITE SIMPLY, "THE RIGHT OF A PERSON TO REMAIN SILENT
UNLESS HE CHOOSES TO SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN
WILL."  MALLOY V. HOGAN, SUPRA, AT 8.  HENCE, A CONFESSION IS
INVOLUNTARY AND INADMISSIBLE UNLESS IT IS "THE PRODUCT OF A RATIONAL
INTELLECT AND A FREE WILL."  BLACKBURN V. ALABAMA, 361 U.S. 199, 208
(1960); SEE RECK V. PATE, 367 U.S. 433, 440 (1961). 

IDEALLY, OF COURSE, A DEFENDANT'S COMPELLED UTTERANCE WOULD NEVER BE
ADMITTED INTO EVIDENCE AGAINST HIM.  AS WE SAID IN JACKSON V. DENNO,
378 U.S. 368, 376 (1964), IT IS "AXIOMATIC" THAT A CRIMINAL CONVICTION
CANNOT STAND IF IT "IS FOUNDED, IN WHOLE OR IN PART, UPON AN
INVOLUNTARY CONFESSION . . . EVEN THOUGH THERE IS AMPLE EVIDENCE ASIDE
FROM THE CONFESSION TO SUPPORT THE CONVICTION."  YET I DOUBT THAT
INFORMED OBSERVERS OF THE CRIMINAL PROCESS WOULD DENY THAT AT LEAST
SOME COMPELLED UTTERANCES SLIP THROUGH, EVEN ASSUMING SCRUPULOUS
ADHERENCE TO CONSTITUTIONAL STANDARDS AND THE MOST RIGOROUS PROCEDURAL
PROTECTIONS.  JACKSON WAS AN ATTEMPT TO MOVE THAT REALITY SOMEWHAT
CLOSER TO THE IDEAL.  WE THERE REJECTED THE NEW YORK RULE BECAUSE IT
"DID NOT AFFORD A RELIABLE DETERMINATION OF THE VOLUNTARINESS OF THE
CONFESSION OFFERED IN EVIDENCE AT THE TRIAL" AND CONSEQUENTLY "DID NOT
ADEQUATELY PROTECT (A DEFENDANT'S) RIGHT TO BE FREE OF A CONVICTION
BASED UPON A COERCED CONFESSION."  ID., AT 377.  AS THE COURT TODAY
POINTS OUT, "(THE PROCEDURE WE ESTABLISHED IN JACKSON WAS DESIGNED TO
SAFEGUARD THE RIGHT OF AN INDIVIDUAL, ENTIRELY APART FROM HIS GUILT OR
INNOCENCE, NOT TO BE COMPELLED TO CONDEMN HIMSELF BY HIS OWN
UTTERANCES."  ANTE, AT 485.     THERE IS NO NEED TO DWELL UPON THE
IMPORTANCE OUR AMERICAN CONCEPT OF JUSTICE ATTACHES TO PRESERVING THE
INTEGRITY OF THE CONSTITUTIONAL PRIVILEGE.  BOTH THE RULE THAT
AUTOMATICALLY REVERSES A CONVICTION WHEN AN INVOLUNTARY CONFESSION WAS
ADMITTED AT TRIAL AND THE PROCEDURE ESTABLISHED IN JACKSON FOR
DETERMINING WHETHER A CONFESSION WAS VOLUNTARY ARE MEANS TO FURTHER THE
END THAT NO UTTERANCE OF A DEFENDANT NOT THE PRODUCT OF HIS OWN FREE
CHOICE WILL BE USED AGAINST HIM.  THE COURT TODAY REAFFIRMS WHAT WE
HELD IN JACKSON:  "(WHEN A CONFESSION CHALLENGED AS INVOLUNTARY IS
SOUGHT TO BE USED AGAINST A CRIMINAL DEFENDANT AT HIS TRIAL, HE IS
ENTITLED TO A RELIABLE AND CLEAR-CUT DETERMINATION THAT THE CONFESSION
WAS IN FACT VOLUNTARILY RENDERED."  ANTE, AT 489.  BUT THE COURT GOES
ON TO HOLD THAT IT FOLLOWS FROM JACKSON THAT "THE PROSECUTION MUST
PROVE AT LEAST BY A PREPONDERANCE OF THE EVIDENCE THAT THE CONFESSION
WAS VOLUNTARY."  IBID.  I DISAGREE.  IN MY VIEW, THE RATIONALE OF
JACKSON REQUIRES THE CONCLUSION THAT THE PREPONDERANCE STANDARD DOES
NOT PROVIDE SUFFICIENT PROTECTION AGAINST THE DANGER THAT INVOLUNTARY
CONFESSIONS WILL BE EMPLOYED IN CRIMINAL TRIALS. 

A JACKSON HEARING NORMALLY PRESENTS THE FACTFINDER WITH CONFLICTING
TESTIMONY FROM THE DEFENDANT AND LAW ENFORCEMENT OFFICERS ABOUT WHAT
OCCURRED DURING THE OFFICERS' INTERROGATION OF THE DEFENDANT.  THE
FACTFINDER'S RESOLUTION OF THIS CONFLICT IS OFTEN, AS A PRACTICAL
MATTER, THE FINAL RESOLUTION OF THE VOLUNTARINESS ISSUE.  JACKSON,
SUPRA, AT 390-391.  THIS CASE IS A TYPICAL EXAMPLE.  PETITIONER
TESTIFIED THAT HE CONFESSED BECAUSE THE POLICE HAD BEATEN HIM; THE
POLICE TESTIFIED THAT THERE WAS NO BEATING.  AS THE COURT NOTES, "(THE
TRIAL JUDGE RESOLVED THIS CREDIBILITY PROBLEM IN FAVOR OF THE POLICE
AND RULED THE CONFESSION ADMISSIBLE."  ANTE, AT 480.  WHEN THE QUESTION
BEFORE THE FACTFINDER IS WHETHER TO BELIEVE ONE OR THE OTHER OF TWO
SELF-SERVING ACCOUNTS OF WHAT HAS HAPPENED, IT IS APPARENT THAT THE
STANDARD OF PERSUASION WILL IN MANY INSTANCES BE OF CONTROLLING
SIGNIFICANCE.  SEE SPEISER V. RANDALL, 357 U.S. 513, 525-526 (1958). 
ALTHOUGH THE COURT SUGGESTS "THAT FEDERAL RIGHTS HAVE (NOT) SUFFERED
FROM DETERMINING ADMISSIBILITY BY A PREPONDERANCE OF THE EVIDENCE" AND
THAT THERE HAS BEEN NO SHOWING "THAT ADMISSIBILITY RULINGS HAVE BEEN
UNRELIABLE . . . BECAUSE NOT BASED ON SOME HIGHER STANDARD," ANTE, AT
488, I DO NOT THINK IT CAN BE DENIED, GIVEN THE FACTUAL NATURE OF THE
ORDINARY VOLUNTARINESS DETERMINATION, THAT PERMITTING A LOWER STANDARD
OF PROOF WILL NECESSARILY RESULT IN THE ADMISSION OF MORE INVOLUNTARY
CONFESSIONS THAN WOULD BE ADMITTED WERE THE PROSECUTION REQUIRED TO
MEET A HIGHER STANDARD.  THE CONVERSE, OF COURSE, IS ALSO TRUE. 
REQUIRING THE HIGHER STANDARD MEANS THAT SOME VOLUNTARY CONFESSIONS
WILL BE EXCLUDED AS INVOLUNTARY EVEN THOUGH THEY WOULD HAVE BEEN FOUND
VOLUNTARY UNDER THE LOWER STANDARD. 

THE STANDARD OF PROOF REQUIRED FOR A CRIMINAL CONVICTION PRESENTS A
SIMILAR SITUATION, YET WE HAVE HELD THAT GUILT MUST BE ESTABLISHED BY
PROOF BEYOND A REASONABLE DOUBT.  IN RE WINSHIP, 397 U.S. 358, 361-364
(1970); SEE ID., AT 370-372 (HARLAN, J., CONCURRING.)  PERMITTING PROOF
BY A PREPONDERANCE OF THE EVIDENCE WOULD NECESSARILY RESULT IN THE
CONVICTION OF MORE DEFENDANTS WHO ARE IN FACT INNOCENT.  CONVERSELY,
IMPOSING THE BURDEN OF PROOF BEYOND A REASONABLE DOUBT MEANS THAT MORE
DEFENDANTS WHO ARE IN FACT GUILTY ARE FOUND INNOCENT.  IT SEEMS TO ME
THAT THE SAME CONSIDERATIONS THAT DEMAND THE REASONABLE-DOUBT STANDARD
WHEN GUILT OR INNOCENCE IS AT STAKE ALSO DEMAND THAT STANDARD WHEN THE
QUESTION IS THE ADMISSIBILITY OF AN ALLEGEDLY INVOLUNTARY CONFESSION. 

WE PERMIT PROOF BY A PREPONDERANCE OF THE EVIDENCE IN CIVIL
LITIGATION BECAUSE "WE VIEW IT AS NO MORE SERIOUS IN GENERAL FOR THERE
TO BE AN ERRONEOUS VERDICT IN THE DEFENDANT'S FAVOR THAN FOR THERE TO
BE AN ERRONEOUS VERDICT IN THE PLAINTIFF'S FAVOR."  ID., AT 371
(HARLAN, J., CONCURRING).  WE DO NOT TAKE THAT VIEW IN CRIMINAL CASES. 
WE SAID IN WINSHIP THAT THE REASONABLE-DOUBT STANDARD "IS A PRIME
INSTRUMENT FOR REDUCING THE RISK OF CONVICTIONS RESTING ON FACTUAL
ERROR.  THE STANDARD PROVIDES CONCRETE SUBSTANCE FOR THE PRESUMPTION OF
INNOCENCE . . . . "  ID., AT 363.  AS MR. JUSTICE HARLAN PUT IT IN HIS
CONCURRING OPINION, THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT
IS "BOTTOMED ON A FUNDAMENTAL VALUE DETERMINATION OF OUR SOCIETY THAT
IT IS FAR WORSE TO CONVICT AN INNOCENT MAN THAN TO LET A GUILTY MAN GO
FREE."  ID., AT 372. 

IF WE PERMIT THE PROSECUTION TO PROVE BY A PREPONDERANCE OF THE
EVIDENCE THAT A CONFESSION WAS VOLUNTARY, THEN, TO PARAPHRASE MR.
JUSTICE HARLAN, WE MUST BE PREPARED TO JUSTIFY THE VIEW THAT IT IS NO
MORE SERIOUS IN GENERAL TO ADMIT INVOLUNTARY CONFESSIONS THAN IT IS TO
EXCLUDE VOLUNTARY CONFESSIONS.  I AM NOT PREPARED TO JUSTIFY THAT
VIEW.  COMPELLED SELF-INCRIMINATION IS SO ALIEN TO THE AMERICAN SENSE
OF JUSTICE THAT I SEE NO WAY THAT SUCH A VIEW COULD EVER BE JUSTIFIED. 
IF WE ARE TO PROVIDE "CONCRETE SUBSTANCE" FOR THE COMMAND OF THE FIFTH
AMENDMENT THAT NO PERSON SHALL BE COMPELLED TO CONDEMN HIMSELF, WE MUST
INSIST, AS WE DO AT THE TRIAL OF GUILT OR INNOCENCE, THAT THE
PROSECUTION PROVE THAT THE DEFENDANT'S CONFESSION WAS VOLUNTARY BEYOND
A REASONABLE DOUBT.  /1/  IN MY JUDGMENT, TO PARAPHRASE MR. JUSTICE
HARLAN AGAIN, THE COMMAND OF THE FIFTH AMENDMENT REFLECTS THE
DETERMINATION OF OUR SOCIETY THAT IT IS WORSE TO PERMIT INVOLUNTARY
SELF-CONDEMNATION THAN IT IS TO DEPRIVE A JURY OF PROBATIVE EVIDENCE. 
JUST AS WE DO NOT CONVICT WHEN THERE IS A REASONABLE DOUBT OF GUILT, WE
SHOULD NOT PERMIT THE PROSECUTION TO INTRODUCE INTO EVIDENCE A
DEFENDANT'S CONFESSION WHEN THERE IS A REASONABLE DOUBT THAT IT WAS THE
PRODUCT OF HIS FREE AND RATIONAL CHOICE. 

I ADD ONLY THAT THE ABSOLUTE BAR AGAINST THE ADMISSION OF A
DEFENDANT'S COMPELLED UTTERANCE AT HIS CRIMINAL TRIAL IS FUNDAMENTALLY
AN EXPRESSION OF THE AMERICAN COMMITMENT TO THE MORAL WORTH OF THE
INDIVIDUAL.  WHAT WE SAID IN WINSHIP BEARS REPEATING HERE.  "(USE OF
THE REASONABLE-DOUBT STANDARD IS INDISPENSABLE TO COMMAND THE RESPECT
AND CONFIDENCE OF THE COMMUNITY IN APPLICATIONS OF THE CRIMINAL LAW. 
IT IS CRITICAL THAT THE MORAL FORCE OF THE CRIMINAL LAW NOT BE DILUTED
BY A STANDARD OF PROOF THAT LEAVES PEOPLE IN DOUBT WHETHER INNOCENT MEN
ARE BEING CONDEMNED."  ID., AT 364.  I BELIEVE THAT IT IS JUST AS
CRITICAL TO OUR SYSTEM OF CRIMINAL JUSTICE THAT WHEN A PERSON'S WORDS
ARE USED AGAINST HIM, NO REASONABLE DOUBT REMAINS THAT HE SPOKE OF HIS
OWN FREE WILL. 

/1/  MY VIEW THAT THE REASONABLE-DOUBT STANDARD MUST BE IMPOSED UPON
THE PROSECUTION DOES NOT DEPEND UPON WHETHER THAT STANDARD WOULD BE
MORE EFFECTIVE THAN SOME LOWER STANDARD IN DETERRING POLICE
MISCONDUCT.  WHEN A DEFENDANT CHALLENGES HIS CONFESSION AS INVOLUNTARY,
"THE CONSTITUTIONAL INQUIRY IS NOT WHETHER THE CONDUCT OF STATE
OFFICERS IN OBTAINING THE CONFESSION WAS SHOCKING, BUT WHETHER THE
CONFESSION WAS 'FREE AND VOLUNTARY . . . . '"  MALLOY V. HOGAN, 378
U.S. 1, 7 (1964).  IT IS TRUE THAT THE DEFENDANT WILL FREQUENTLY ALLEGE
POLICE MISCONDUCT, AS PETITIONER DID HERE.  NEVERTHELESS, AS WE SAID IN
TOWNSEND V. SAIN, 372 U.S. 293, 308 (1963), "(ANY QUESTIONING BY POLICE
OFFICERS WHICH IN FACT PRODUCES A CONFESSION WHICH IS NOT THE PRODUCT
OF A FREE INTELLECT RENDERS THAT CONFESSION INADMISSIBLE." 

NATHAN LEWIN, BY APPOINTMENT OF THE COURT, 402 U.S. 928, ARGUED THE
CAUSE AND FILED A BRIEF FOR PETITIONER. 

JAMES B. ZAGEL, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, JOEL M. FLAUM, FIRST ASSISTANT ATTORNEY GENERAL, AND
WARREN K. SMOOT, ASSISTANT ATTORNEY GENERAL. 
..END :
















RELIANCE ELECTRIC CO. V. EMERSON ELECTRIC CO., 404 U.S. 418 


       RELIANCE ELECTRIC CO. V. EMERSON ELECTRIC CO.

     CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 70-79.  ARGUED NOVEMBER 10-11, 1971-- DECIDED JANUARY

           11, 1972 


RESPONDENT, THE OWNER OF MORE THAN 10% OF DODGE MFG. CO.'S STOCK,
WITHIN SIX MONTHS OF THE PURCHASE THEREOF SOLD ENOUGH SHARES TO A
BROKER TO REDUCE ITS HOLDING TO 9.96%, FOR THE PURPOSE OF IMMUNIZING
THE DISPOSAL OF THE REMAINDER FROM LIABILITY UNDER SEC. 16(B) OF THE
SECURITIES EXCHANGE ACT OF 1934.  UNDER THAT PROVISION A CORPORATION
MAY RECOVER FOR ITSELF THE PROFITS REALIZED BY AN OWNER OF MORE THAN
10% OF ITS SHARES FROM A PURCHASE AND SALE OF ITS STOCK WITHIN ANY SIX
MONTH PERIOD, PROVIDED THE OWNER HELD MORE THAN 10% "BOTH AT THE TIME
OF PURCHASE AND SALE."  HELD:  UNDER THE TERMS OF SEC. 16(B) RESPONDENT
IS NOT LIABLE TO PETITIONER (DODGE'S SUCCESSOR) FOR PROFITS DERIVED
FROM THE SALE OF THE 9.96% TO DODGE WITHIN SIX MONTHS OF PURCHASE.  PP.
422-427. 

434 F.2D 918, AFFIRMED. 

STEWART J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND MARSHALL AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION, IN WHICH BRENNAN AND WHITE, JJ., TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

15 U.S.C. 78PB), PROVIDES, AMONG OTHER THINGS, THAT A CORPORATION MAY
RECOVER FOR ITSELF THE PROFITS REALIZED BY AN OWNER OF MORE THAN 10% OF
ITS SHARES FROM A PURCHASE AND SALE OF ITS STOCK WITHIN ANY SIX-MONTH
PERIOD, PROVIDED THAT THE OWNER HELD MORE THAN 10% "BOTH AT THE TIME OF
THE PURCHASE AND SALE."  /1/  IN THIS CASE, THE RESPONDENT, THE OWNER
OF 13.2% OF A CORPORATION'S SHARES, DISPOSED OF ITS ENTIRE HOLDINGS IN
TWO SALES, BOTH OF THEM WITHIN SIX MONTHS OF PURCHASE.  THE FIRST SALE
REDUCED THE RESPONDENT'S HOLDINGS TO 9.96%, AND THE SECOND DISPOSED OF
THE REMAINDER.  THE QUESTION PRESENTED IS WHETHER THE PROFITS DERIVED
FROM THE SECOND SALE ARE RECOVERABLE BY THE CORPORATION UNDER SEC.
16(B).  WE HOLD THAT THEY ARE NOT. 

I 

ON JUNE 16, 1967, THE RESPONDENT, EMERSON ELECTRIC CO., ACQUIRED
13.2% OF THE OUTSTANDING COMMON STOCK OF DODGE MANUFACTURING CO.,
PURSUANT TO A TENDER OFFER MADE IN AN UNSUCCESSFUL ATTEMPT TO TAKE OVER
DODGE.  THE PURCHASE PRICE FOR THIS STOCK WAS $63 PER SHARE.  SHORTLY
THEREAFTER, THE SHAREHOLDERS OF DODGE APPROVED A MERGER WITH THE
PETITIONER, RELIANCE ELECTRIC CO. FACED WITH THE CERTAIN FAILURE OF ANY
FURTHER ATTEMPT TO TAKE OVER DODGE, AND WITH THE PROSPECT OF BEING
FORCED TO EXCHANGE ITS DODGE SHARES FOR STOCK IN THE MERGED CORPORATION
IN THER NEAR FUTURE, /2/  EMERSON, FOLLOWING A PLAN OUTLINED BY ITS
GENERAL COUNSEL, DECIDED TO DISPOSE OF ENOUGH SHARES TO BRING ITS
HOLDINGS BELOW 10%, IN ORDER TO IMMUNIZE THE DISPOSAL OF THE REMAINDER
OF ITS SHARES FROM LIABILITY UNDER SEC. 16(B).  PURSUANT TO COUNSEL'S
RECOMMENDATION, EMERSON ON AUGUST 28 SOLD 37,000 SHARES OF DODGE COMMON
STOCK TO A BROKERAGE HOUSE AT $68 PER SHARE.  THIS SALE REDUCED
EMERSON'S HOLDINGS IN DODGE TO 9.96% OF THE OUTSTANDING COMMON STOCK. 
THE REMAINING SHARES WERE THEN SOLD TO DODGE AT $69 PER SHARE ON
SEPTEMBER 11. 

AFTER A DEMAND ON IT BY RELIANCE FOR THE PROFITS REALIZED ON BOTH
SALES, EMERSON FILED THIS ACTION SEEKING A DECLARATORY JUDGMENT AS TO
ITS LIABILITY UNDER SEC. 16(B).  EMERSON FIRST CLAIMED THAT IT WAS NOT
LIABLE AT ALL, BECAUSE IT WAS NOT A 10% OWNER AT THE TIME OF THE
PURCHASE OF THE DODGE SHARES.  THE DISTRICT COURT DISAGREED, HOLDING
THAT A PURCHASE OF STOCK FALLS WITHIN SEC. 16(B) WHERE THE PURCHASER
BECOMES A 10% OWNER BY VIRTUE OF THE PURCHASE.  THE COURT OF APPEALS
AFFIRMED THIS HOLDING, AND EMERSON DID NOT CROSS-PETITION FOR
CERTIORARI.  THUS THAT QUESTION IS NOT BEFORE US. 

EMERSON ALTERNATIVELY ARGUED TO THE DISTRICT COURT THAT, ASSUMING IT
WAS A 10% STOCKHOLDER AT THE TIME OF THE PURCHASE, IT WAS LIABLE ONLY
FOR THE PROFITS ON THE AUGUST 28 SALE OF 37,000 SHARES, BECAUSE AFTER
THAT TIME IT WAS NO LONGER A 10% OWNER WITHIN THE MEANING OF SEC.
16(B).  AFTER TRIAL ON THE ISSUE OF LIABILITY ALONE, THE DISTRICT COURT
HELD EMERSON LIABLE FOR THE ENTIRE AMOUNT OF ITS PROFITS.  THE COURT
FOUND THAT EMERSON'S SALES OF DODGE STOCK WERE "EFFECTED PURSUANT TO A
SINGLE PREDETERMINED PLAN OF DISPOSITION WITH THE OVERALL INTENT AND
PURPOSE OF AVOIDING SECTION 16(B) LIABILITY," AND CONSTRUED THE TERM
"TIME OF . . . SALE" TO INCLUDE "THE ENTIRE PERIOD DURING WHICH A
SERIES OF RELATED TRANSACTIONS TAKE PLACE PURSUANT TO A PLAN BY WHICH A
10% BENEFICIAL OWNER DISPOSES OF HIS STOCK HOLDINGS" 306 F.SUPP.  588,
592. 

ON AN INTERLOCUTORY APPEAL UNDER 28 U.S.C. 1292(B), THE COURT OF
APPEALS UPHELD THE FINDING THAT EMERSON "SPLIT" ITS SALE OF DODGE STOCK
SIMPLY IN ORDER TO AVOID MOST OF ITS POTENTIAL LIABILITY UNDER SEC.
16(B), BUT IT HELD THIS FACT IRRELEVANT UNDER THE STATUTE SO LONG AS
THE TWO SALES ARE "NOT LEGALLY TIED TO EACH OTHER AND (ARE) MADE AT
DIFFERENT TIMES TO DIFFERENT BUYERS.  . . . "  434 F.2D 918, 926. 
ACCORDINGLY, THE COURT OF APPEALS REVERSED THE DISTRICT COURT'S
JUDGMENT AS TO EMERSON'S LIABILITY FOR ITS PROFITS ON THE SEPTEMBER 11
SALE, AND REMANDED FOR A DETERMINATION OF THE AMOUNT OF EMERSON'S
LIABILITY ON THE AUGUST 28 SALE.  RELIANCE FILED A PETITION FOR
CERTIORARI, WHICH WE GRANTED IN ORDER TO CONSIDER AN UNRESOLVED
QUESTION UNDER AN IMPORTANT FEDERAL STATUTE.  401 U.S. 1008. 

        II 

THE HISTORY AND PURPOSE OF SEC. 16(B) HAVE BEEN EXHAUSTIVELY
REVIEWED BY FEDERAL COURTS ON SEVERAL OCCASIONS SINCE ITS ENACTMENT IN
1934.  SEE, E.G., SMOLOWE V. DELENDO CORP., 136 F.2D 231; ADLER V.
KLAWANS, 267 F.2D 840; BLAU V. MAX FACTOR & CO., 342 F.2D 304.  THOSE
COURTS HAVE RECOGNIZED THAT THE ONLY METHOD CONGRESS DEEMED EFFECTIVE
TO CURB THE EVILS OF INSIDER TRADING WAS A FLAT RULE TAKING THE PROFITS
OUT OF A CLASS OF TRANSACTIONS IN WHICH THE POSSIBILITY OF ABUSE WAS
BELIEVED TO BE INTOLERABLY GREAT.  AS ONE COURT OBSERVED: 

     "IN ORDER TO ACHIEVE ITS GOALS, CONGRESS CHOSE A RELATIVELY

  ARBITRARY RULE CAPABLE OF EASY ADMINISTRATION.  THE OBJECTIVE

  STANDARD OF SECTION 16(B) IMPOSES STRICT LIABILITY UPON

  SUBSTANTIALLY ALL TRANSACTIONS OCCURRING WITHIN THE STATUTORY

  TIME PERIOD, REGARDLESS OF THE INTENT OF THE INSIDER OR THE

  EXISTENCE OF ACTUAL SPECULATION.  THIS APPROACH MAXIMIZED THE

  ABILITY OF THE RULE TO ERADICATE SPECULATIVE ABUSES BY REDUCING

DIFFICULTIES IN PROOF.  SUCH ARBITRARY AND SWEEPING COVERAGE WAS

  DEEMED NECESSARY TO INSURE THE OPTIMUM PROPHYLACTIC EFFECT." 

  BERSHAD V. MCDONOUGH, 428 F.2D 693, 696. 

THUS CONGRESS DID NOT REACH EVERY TRANSACTION IN WHICH AN INVESTOR
ACTUALLY RELIES ON INSIDE INFORMATION.  A PERSON AVOIDS LIABILITY IF HE
DOES NOT MEET THE STATUTORY DEFINITION OF AN "INSIDER," OR IF HE SELLS
MORE THAN SIX MONTHS AFTER PURCHASE.  LIABILITY CANNOT BE IMPOSED
SIMPLY BECAUSE THE INVESTOR STRUCTURED HIS TRANSACTION WITH THE INTENT
OF AVOIDING LIABILITY UNDER SEC. 16(B).  THE QUESTION IS, RATHER,
WHETHER THE METHOD USED TO "AVOID" LIABILITY IS ONE PERMITTED BY THE
STATUTE. 

AMONG THE "OBJECTIVE STANDARDS" CONTAINED IN SEC. 16(B) IS THE
REQUIREMENT THAT A 10% OWNER BE SUCH "BOTH AT THE TIME OF THE PURCHASE
AND SALE . . . OF THE SECURITY INVOLVED."  READ LITERALLY, THIS
LANGUAGE CLEARLY CONTEMPLATES THAT A STATUTORY INSIDER MIGHT SELL
ENOUGH SHARES TO BRING HIS HOLDINGS BELOW 10%, AND LATER-- BUT STILL
WITHIN SIX MONTHS-- SELL ADDITIONAL SHARES FREE FROM LIABILITY UNDER
THE STATUTE.  INDEED, COMMENTATORS ON THE SECURITIES LAWS HAVE
RECOMMENDED THIS EXACT PROCEDURE FOR A 10% OWNER WHO, LIKE EMERSON,
WISHES TO DISPOSE OF HIS HOLDINGS WITHIN SIX MONTHS OF THEIR PURCHASE. 
/3/ 

UNDER THE APPROACH URGED BY RELIANCE, AND ADOPTED BY THE DISTRICT
COURT, THE APPARENT IMMUNITY OF PROFITS DERIVED FROM EMERSON'S SECOND
SALE IS LOST WHERE THE TWO SALES, THOUGH INDEPENDENT IN EVERY OTHER
RESPECT, ARE "INTERRELATED PARTS OF A SINGLE PLAN."  306 F.SUPP., AT
592.  BUT A "PLAN" TO SELL THAT IS CONCEIVED WITHIN SIX MONTHS OF
PURCHASE CLEARLY WOULD NOT FALL WITHIN SEC. 16(B) IF THE SALE WERE MADE
AFTER THE SIX MONTHS HAD EXPIRED, AND WE SEE NO BASIS IN THE STATUTE
FOR A DIFFERENT RESULT WHERE THE 10% REQUIREMENT IS INVOLVED RATHER
THAN THE SIX-MONTH LIMITATION. 

THE DISSENTING OPINION, POST, AT 442, REASONS THAT "THE 10% RULE IS
BASED UPON A CONCLUSIVE STATUTORY PRESUMPTION THAT OWNERSHIP OF THIS
QUANTITY OF STOCK SUFFICES TO PROVIDE ACCESS TO INSIDE INFORMATION,"
AND THAT IT THUS "FOLLOWS THAT ALL SALES BY A MORE-THAN-10% OWNER
WITHIN THE SIX-MONTH PERIOD CARRY THE PRESUMPTION OF A TAINT, EVEN IF A
PRIOR TRANSACTION WITHIN THE PERIOD HAS REDUCED THE BENEFICIAL
OWNERSHIP TO 10% OR BELOW."  WHILE THERE MAY BE LOGIC IN THIS POSITION,
IT WAS CLEARLY REJECTED AS A BASIS FOR LIABILITY WHEN CONGRESS INCLUDED
THE PROVISO THAT A 10% OWNER MUST BE SUCH BOTH AT THE TIME OF THE
PURCHASE AND OF THE SALE.  ALTHOUGH THE LEGISLATIVE HISTORY AFFORDS NO
EXPLANATION OF THE PURPOSE OF THE PROVISO, IT MAY BE THAT CONGRESS
REGARDED ONE WTIH A LONG-TERM INVESTMENT OF MORE THAN 10% AS MORE
LIKELY TO HAVE ACCESS TO INSIDE INFORMATION THAN ONE WHO MOVES IN AND
OUT OF THE 10% CATEGORY.  BUT WHATEVER THE RATIONALE OF THE PROVISO, IT
CANNOT BE DISREGARDED SIMPLY ON THE GROUND THAT IT MAY BE INCONSISTENT
WITH OUR ASSESSMENT OF THE "WHOLESOME PURPOSE" OF THE ACT. 

TO BE SURE, WHERE ALTERNATIVE CONSTRUCTIONS OF THE TERMS OF SEC.
16(B) ARE POSSIBLE, THOSE TERMS ARE TO BE GIVEN THE CONSTRUCTION THAT
BEST SERVES THE CONGRESSIONAL PURPOSE OF CURBING SHORT-SWING
SPECULATION BY CORPORATE INSIDERS.  /4/  BUT A CONSTRUCTION OF THE TERM
"AT THE TIME OF . . . SALE" TREATS TWO SALES AS ONE UPON PROOF OF A PRE
EXISTING INTENT BY THE SELLER IS SCARCELY IN HARMONY WITH THE
CONGRESSIONAL DESIGN OF PREDICATING LIABILITY UPON AN "OBJECTIVE
MEASURE OF PROOF."  SMOLOWE V. DELENDO CORP., SUPRA, AT 235.  WERE WE
TO ADOPT THE APPROACH URGED BY RELIANCE, WE COULD BE SURE THAT
INVESTORS WOULD NOT IN THE FUTURE PROVIDE SUCH CONVENIENT PROOF OF
THEIR INTENT AS EMERSON DID IN THIS CASE.  IF A "TWO-STEP" SALE OF A
10% OWNER'S HOLDINGS WITHIN SIX MONTHS OF PURCHASE IS THOUGHT TO GIVE
RISE TO THE KIND OF EVIL THAT CONGRESS SOUGHT TO CORRECT THROUGH SEC.
16(B), THOSE TRANSACTIONS CAN BE MORE EFFECTIVELY DETERRED BY AN
AMENDMENT TO THE STATUTE THAT PRESERVES ITS MECHANICAL QUALITY THAN BY
A JUDICIAL SEARCH FOR THE WILL-O'-THE-WISP OF AN INVESTOR'S "INTENT" IN
EACH LITIGATED CASE. 

III 

THE SECURITIES AND EXCHANGE COMMISSION, PARTICIPATING AS AMICUS
CURIAE, ARGUES FOR AN INTERPRETATION OF THE STATUTE THAT BOTH COVERS
EMERSON'S TRANSACTION AND PRESERVES THE MECHANICAL QUALITY OF THE
STATUTE.  SEIZING UPON A FRAGMENT OF LEGISLATIVE HISTORY-- A BRIEF
EXCHANGE BETWEEN ONE OF THE PRINCIPAL AUTHORS OF THE BILL AND TWO
MEMBERS OF THE SENATE COMMITTEE DURING HEARINGS ON THE BILL /5/  -- THE
COMMISSION SUGGESTS THAT THE SOLE PURPOSE OF THE REQUIREMENT OF 10%
OWNERSHIP AT THE TIME OF BOTH PURCHASE AND SALE WAS TO EXCLUDE FROM THE
STATUTE'S COVERAGE THOSE PERSONS WHO BECAME 10% SHAREHOLDERS
"INVOLUNTARILY," AS, FOR EXAMPLE, BY LEGAL SUCCESSION OR BY A REDUCTION
IN THE TOTAL NUMBER OF OUTSTANDING SHARES OF THE CORPORATION.  THE
EFFECT OF SUCH AN INTERPRETATION WOULD BE TO BRING WITHIN SEC. 16(B)
ALL SALES WITHIN SIX MONTHS BY ONE WHO HAS GAINED THE POSITION OF A 10%
OWNER THROUGH VOLUNTARY PURCHASE, REGARDLESS OF THE AMOUNT OF HIS
HOLDINGS AT THE TIME OF THE SALE.  WE CANNOT ACCEPT SUCH A CONSTRUCTION
OF THE ACT. 

IN THE FIRST PLACE, WE NOTE THAT THE SEC'S OWN RULES UNDERCUT SUCH
AN INTERPRETATION.  RECOGNIZING THE INTER-RELATEDNESS OF SEC. 16(A) AND
SEC. 16(B) OF THE ACT, THE COMMISSION HAS USED ITS POWER TO GRANT
EXEMPTIONS UNDER SEC. 16(B) TO EXCLUDE FROM LIABILITY ANY TRANSACTION
THAT DOES NOT FALL WITHIN THE REPORTING REQUIREMENTS OF SEC. 16(A). 
/6/  A 10% OWNER IS REQUIRED BY THAT SECTION TO REPORT AT THE END OF
EACH MONTH ANY CHANGES IN HIS HOLDINGS IN THE CORPORATION DURING THAT
MONTH.  THE COMMISSION HAS INTERPRETED THIS PROVISION TO REQUIRE A
REPORT ONLY IF THE STOCKHOLDER HELD MORE THAN 10% OF THE CORPORATION'S
SHARES AT SOME TIME DURING THE MONTH.  /7/  THUS, A 10% OWNER WHO, LIKE
EMERSON, SELLS DOWN TO 9.96% ONE MONTH AND DISPOSES OF THE REMAINDER
THE FOLLOWING MONTH, WOULD PRESUMABLY BE EXEMPT FROM THE REPORTING
REQUIREMENT AND HENCE FROM SEC. 16(B) UNDER THE SEC'S OWN RULES,
WITHOUT REGARD TO WHETHER HE ACQUIRED THE STOCK "VOLUNTARILY." 

BUT THE SEC'S ARGUMENT WOULD FAIL EVEN IF IT WERE NOT CONTRADICTED
BY THE COMMISSION'S OWN PREVIOUS CONSTRUCTION OF THE ACT.  AS WE SAID
IN BLAU V. LEHMAN, 368 U.S. 403, 411, ONE "MAY AGREE THAT . . . THE
COMMISSION PRESENTS) PERSUASIVE POLICY ARGUMENTS THAT THE ACT SHOULD BE
BROADENED . . . TO PREVENT 'THE UNFAIR USE OF INFORMATION' MORE
EFFECTIVELY THAN CAN BE ACCOMPLISHED BY LEAVING THE ACT SO AS TO
REQUIRE FORFEITURE OF PROFITS ONLY BY THOSE SPECIFICALLY DESIGNATED BY
CONGRESS TO SUFFER THOSE LOSSES."  BUT WE ARE NOT FREE TO ADOPT A
CONSTRUCTION THAT NOT ONLY STRAINS, BUT FLATLY CONTRADICTS, THE WORDS
OF THE STATUTE. 

THE JUDGMENT IS

              AFFIRMED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  SECTION 16(B) PROVIDES: 

"FOR THE PURPOSE OF PREVENTING THE UNFAIR USE OF INFORMATION WHICH
MAY HAVE BEEN OBTAINED BY SUCH BENEFICIAL OWNER, DIRECTOR, OR OFFICER
BY REASON OF HIS RELATIONSHIP TO THE ISSUER, ANY PROFIT REALIZED BY HIM
FROM ANY PURCHASE AND SALE, OR ANY SALE AND PURCHASE, OF ANY EQUITY
SECURITY OF SUCH ISSUER (OTHER THAN AN EXEMPTED SECURITY) WITHIN ANY
PERIOD OF LESS THAN SIX MONTHS . . . SHALL INURE TO AND BE RECOVERABLE
BY THE ISSUER, IRRESPECTIVE OF ANY INTENTION ON THE PART OF SUCH
BENEFICIAL OWNER, DIRECTOR, OR OFFICER IN ENTERING INTO SUCH
TRANSACTION OF HOLDING THE SECURITY PURCHASED OR OF NOT REPURCHASING
THE SECURITY SOLD FOR A PERIOD EXCEEDING SIX MONTHS.  . . . THIS
SUBSECTION SHALL NOT BE CONSTRUED TO COVER ANY TRANSACTION WHERE SUCH
BENEFICIAL OWNER WAS NOT SUCH BOTH AT THE TIME OF THE PURCHASE AND
SALE, OR THE SALE AND PURCHASE, OF THE SECURITY INVOLVED, OR ANY
TRANSACTION OR TRANSACTIONS WHICH THE COMMISSION BY RULES AND
REGULATIONS MAY EXEMPT AS NOT COMPREHENDED WITHIN THE PURPOSE OF THIS
SUBSECTION."  15 U.S.C. 78PB).     THE TERM "SUCH BENEFICIAL OWNER"
REFERS TO ONE WHO OWNS "MORE THAN 10 PER CENTUM OF ANY CLASS OF ANY
EQUITY SECURITY (OTHER THAN AN EXEMPTED SECURITY) WHICH IS REGISTERED
PURSUANT TO SECTION 12 OF THIS TITLE."  SECURITIES EXCHANGE ACT OF
1934, SEC. 16(A), 15 U.S.C. 78PA). 

/2/  THE COURT OF APPEALS FOR THE SECOND CIRCUIT HAS HELD THAT AN
EXCHANGE OF SHARES IN ONE CORPORATION FOR THOSE OF ANOTHER PURSUANT TO
A MERGER AGREEMENT CONSTITUTES A "SALE" WITHIN THE MEANING OF SEC.
16(B).  NEWMARK V. RKO GENERAL, INC., 425 F.2D 348, 354. 

/3/  "(A) PERSON WHO OWNS 15 PERCENT AND WANTS TO SELL DOWN TO 5
PERCENT SHOULD SELL 5-PLUS PERCENT IN ONE TRANSACTION AND THEN, AFTER
HE BECOMES A HOLDER OF SLIGHTLY LESS THAN 10 PERCENT, SELL OUT THE
REMAINDER.  2 L.LOSS,SECURITIES REGULATION 1060 (2D ED. 1961). 

"(THE INTENTION OF THE LANGUAGE WAS TO EXCLUDE THE SECOND SALE IN A
CASE WHERE 10% IS PURCHASED, 5% SOLD WITHIN THREE MONTHS AND THE
REMAINING 5% A MONTH LATER.  THIS LATTER CONSTRUCTION OF THE ACT IS, IT
IS BELIEVED, THE ONLY SAFE ONE TO RELY UPON."  SELIGMAN, PROBLEMS UNDER
THE SECURITIES EXCHANGE ACT, 21 VA.L.REV.  1, 20 (1934). 

/4/  SEE, E.G., ADLER V. KLAWANS, 267 F.2D 840 (ONE WHO IS A
DIRECTOR AT THE TIME OF SALE NEED NOT ALSO HAVE BEEN A DIRECTOR AT THE
TIME OF PURCHASE).  IN INTERPRETING THE TERMS "PURCHASE" AND "SALE,"
COURTS HAVE PROPERLY ASKED WHETHER THE PARTICULAR TYPE OF TRANSACTION
INVOLVED IS ONE THAT GIVES RISE TO SPECULATIVE ABUSE.  SEE, E.G.,
BERSHAD V. MCDONOUGH, 428 F.2D 693 (GRANTING OF AN OPTION TO PURCHASE
CONSTITUTES A "SALE").  AND IN DECIDING WHETHER AN INVESTOR IS AN
"OFFICER" OR "DIRECTOR" WITHIN THE MEANING OF SEC. 16(B), COURTS HAVE
ALLOWED PROOF THAT THE INVESTOR PERFORMED THE FUNCTIONS OF AN OFFICER
OR DIRECTOR EVEN THOUGH NOT FORMALLY DENOMINATED AS SUCH.  COLBY V.
KLUNE, 178 F.2D 872, 873; CF. FEDER V. MARTIN MARIETTA CORP., 406 F.2D
260, 262-263.  THE VARIOUS TESTS EMPLOYED IN THESE CASES ARE USED TO
DETERMINE WHETHER A TRANSACTION, OBJECTIVELY DEFINED, FALLS WITHIN OR
WITHOUT THE TERMS OF THE STATUTE.  IN NO CASE IS LIABILITY PREDICATED
UPON "CONSIDERATIONS OF INTENT, LACK OF MOTIVE, OR IMPROPER CONDUCT"
THAT ARE IRRELEVANT IN SEC. 16(B) SUITS.  BLAU V. OPPENHEIM, 250
F.SUPP.  881, 887. 

/5/  THAT EXCHANGE WAS AS FOLLOWS: 

"SENATOR CAREY.  SUPPOSE THIS STOCK PASSED TO AN ESTATE, AND THE
ESTATE HAD TO RAISE MONEY? 

"MR. CORCORAN.  I DO NOT THINK, IN THAT CASE, SIR, THE STATUTE WOULD
APPLY. 

"SENATOR KEAN.  WHY NOT? 

"SENATOR CAREY.  THE ESTATE IS THE BENEFICIARY. 

"MR. CORCORAN.  I DO NOT BELIEVE IT WOULD.  CERTAINLY THE INTENTION
WAS THAT IT SHOULD NOT APPLY TO THAT SORT OF A SITUATION."  HEARINGS ON
STOCK EXCHANGE PRACTICES BEFORE THE SENATE COMMITTEE ON BANKING AND
CURRENCY PURSUANT TO S. RES. 84, 56, AND 97, 73D CONG., 1ST AND 2D
SESS., PT. 15, P. 6558.  IT WAS SOMETIME AFTER THIS EXCHANGE THAT THE
BILL WAS REVISED TO ADD THE EXEMPTIVE PROVISION. 

/6/  SEC RULE 16A-10, 17 CFR 240.16A-10. 

/7/  FORM 4, SECURITIES EXCHANGE ACT RELEASE NO. 6487 (MAR. 9,
1961). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
WHITE CONCUR, DISSENTING. 

ON JUNE 16, 1967, EMERSON ELECTRIC CO., IN AN ATTEMPT TO WREST
CONTROL FROM THE INCUMBENT MANAGEMENT, ACQUIRED MORE THAN 10% OF THE
OUTSTANDING COMMON STOCK OF DODGE MANUFACTURING CO. DODGE SUCCESSFULLY
RESISTED THE TAKE-OVER BID BY MEANS OF A DEFENSIVE MERGER WITH
PETITIONER, RELIANCE ELECTRIC CO. EMERSON THEN SOLD THE SHARES IT HAD
ACCUMULATED, WITHIN SIX MONTHS OF THEIR PURCHASE, FOR A PROFIT
EXCEEDING $900,000. 

BECAUSE THIS SALE PURPORTEDLY COMPRISED TWO "INDEPENDENT"
TRANSACTIONS, THE FIRST OF WHICH REDUCED EMERSON'S HOLDINGS TO 9.96% OF
THE OUTSTANDING DODGE COMMON STOCK, THE COURT TODAY HOLDS THAT THE
PROFIT FROM THE SECOND TRANSACTION IS BEYOND THE CONTEMPLATION OF SEC.
16(B) OF THE SECURITIES EXCHANGE ACT.  /1/  SO EMERSON NEED NOT ACCOUNT
TO THE CORPORATION FOR THESE GAINS.  IN MY VIEW, THIS RESULT IS A
MUTILATION OF THE ACT, CONTRARY TO ITS BROAD REMEDIAL PURPOSE,
INCONSISTENT WITH THE FLEXIBILITY REQUIRED IN THE INTERPRETATION OF
SECURITIES LEGISLATION, AND NOT REQUIRED BY THE LANGUAGE OF THE STATUTE
ITSELF. 

        I 

403, 413, WHOSE WHOLESOME PURPOSE IS TO CONTROL THE INSIDERS WHOSE
ACCESS TO CONFIDENTIAL INFORMATION GIVES THEM UNFAIR ADVANTAGE IN THE
TRADING OF THEIR CORPORATION'S SECURITIES.  /2/ 

THE CONGRESSIONAL INVESTIGATIONS WHICH LED TO THE ENACTMENT OF THE
SECURITIES EXCHANGE ACT UNEARTHED CONVINCING EVIDENT THAT DISREGARD BY
CORPORATE INSIDERS OF THEIR FIDUCIARY POSITIONS WAS WIDESPREAD AND
PERSUASIVE.  /3/  INDEED, 

"THE FLAGRANT BETRAYAL OF THEIR FIDUCIARY DUTIES BY DIRECTORS AND
OFFICERS OF CORPORATIONS WHO USED THEIR POSITIONS OF TRUST AND THE
CONFIDENTIAL INFORMATION WHICH CAME TO THEM IN SUCH POSITIONS, TO AID
THEM IN THEIR MARKET ACTIVITIES," WAS REPORTED BY THE SENATE
SUBCOMMITTEE CHARGED WITH THE INVESTIGATION TO BE "(AMONG THE MOST
VICIOUS PRACTICES UNEARTHED AT THE HEARINGS."  S. REP. NO. 1455, 73D
CONG., 2D SESS., 55 (1934).  THE SUBCOMMITTEE DID NOT LIMIT ITS ATTACK
TO DIRECTORS AND OFFICERS. 

"CLOSELY ALLIED TO THIS TYPE OF ABUSE WAS THE UNSCRUPULOUS
EMPLOYMENT OF INSIDE INFORMATION BY LARGE STOCKHOLDERS WHO, WHILE NOT
DIRECTORS AND OFFICERS, EXERCISED SUFFICIENT CONTROL OVER THE DESTINIES
OF THEIR COMPANIES TO ENABLE THEM TO ACQUIRE AND PROFIT BY INFORMATION
NOT AVAILABLE TO OTHERS."  IBID. 

DESPITE ITS FLAGRANTLY INEQUITABLE CHARACTER, THE MOST RESPECTED
PILLARS OF THE BUSINESS AND FINANCIAL COMMUNITIES CONSIDERED WINDFALL
PROFITS FROM "SURE-THING" SPECULATION IN THEIR OWN COMPANY'S STOCK TO
BE ONE OF THE USUAL EMOLUMENTS OF OF THEIR POSITION.  COOK & FELDMAN,
INSIDER TRADING UNDER THE SECURITIES EXCHANGE ACT, 66 HARV.L.REV.  385,
386 (1953); 10 SEC ANN.REP.  50 (1944).  THESE ABUSES WERE PERPETRATED
BY SUCH OSTENSIBLY RELIABLE MEN AND INSTITUTIONS AS RICHARD WHITNEY,
PRESIDENT OF THE NEW YORK STOCK EXCHANGE, /4/  ALBERT H. WIGGIN AND THE
CHASE NATIONAL BANK, OF WHICH HE WAS THE CHIEF EXECUTIVE OFFICER, /5/
AND CHARLES E. MITCHELL AND THE NATIONAL CITY BANK, OF WHICH HE WAS
CHAIRMAN OF THE BOARD.  /6/ 

S. REP. NO. 1455, SUPRA, AT 68, BY REMOVING ALL POSSIBILITY OF PROFIT
FROM THOSE SHORT-SWING INSIDER TRADES OCCURRING WITHIN THE STATUTORY
PERIOD OF SIX MONTHS.  /7/  THE STATUTE IS WRITTEN BROADLY, AND THE
LIABILITY IT IMPOSES IS STRICT.  PROFITS ARE FORFEIT WITHOUT PROOF OF
AN INSIDER'S INTENT TO GAIN FROM INSIDE INFORMATION, AND WITHOUT PROOF
THAT THE INSIDER WAS EVEN PRIVY TO SUCH INFORMATION.  /8/  FEDER V.
MARTIN MARIETTA CORP., 406 F.2D 260, 262 (CA2). 

        II 

TODAY, HOWEVER, IN THE GUISE OF AN "OBJECTIVE" APPROACH, THE COURT
UNDERMINES THE STATUTE.  BY THE SIMPLE EXPEDIENT OF DIVIDING WHAT WOULD
ORDINARILY BE A SINGLE TRANSACTION INTO TWO PARTS-- BOTH OF WHICH COULD
BE PERFORMED ON THE SAME DAY, SO FAR AS IT APPEARS FROM THE COURT'S
OPINION-- A MORE-THAN-10% OWNER MAY REAP WINDFALL PROFITS ON 10% OF HIS
CORPORATION'S OUTSTANDING STOCK.  THIS RESULT, "'PLAINLY AT VARIANCE
WITH THE POLICY OF THE LEGISLATION AS A WHOLE,'" UNITED STATES V.
AMERICAN TRUCKING ASSNS., 310 U.S. 534, 543, IS SAID TO BE REQUIRED
BECAUSE EMERSON, OWNING ONLY 9.96%, WAS NOT A "BENEFICIAL OWNER" OF
MORE THAN 10% WITHIN THE MEANING OF SEC. 16(B) "AT THE TIME OF" THE
DISPOSITION OF THIS BLOCK OF DODGE STOCK. 

IF SEC. 16(B) IS TO HAVE THE "OPTIMUM PROPHYLACTIC EFFECT" WHICH ITS
ARCHITECTS INTENDED, INSIDERS MUST NOT BE PERMITTED SO EASILY TO
CIRCUMVENT ITS BROAD MANDATE.  WE SHOULD HOLD THAT THERE WAS ONLY ONE
SALE-- A PLAN OF DISTRIBUTION CONCEIVED "AT THE TIME" EMERSON OWNED
13.2% OF THE DODGE STOCK, AND IMPLEMENTED WITHIN SIX MONTHS OF A
MATCHING PURCHASE.  MOREOVER, IN THE SPIRIT OF THE ACT WE SHOULD
PRESUME THAT ANY SUCH "SPLIT-SALE" BY A MORE-THAN-10% OWNER WAS PART OF
A SINGLE PLAN OF DISPOSITION FOR PURPOSES OF SEC. 16(B) LIABILITY. 

THIS CONSTRUCTION OF "THE SEQUENCE OF RELEVANT TRANSACTIONS,"
BERSHAD V. MCDONOUGH, 428 F.2D 693, 697 (CA7), IS NOT FORECLOSED BY ANY
LANGUAGE IN THE STATUTE.  THE STATUTORY DEFINITIONS OF SUCH TERMS AS
"PURCHASE," "SALE," "BENEFICIAL OWNER," "INSIDER," AND "AT THE TIME OF"
ARE NOT, AS ONE MIGHT INFER FROM THE COURT'S OPINION, OBJECTIVELY
DEFINED WORDS WITH PRECISE MEANINGS. 

"'WHATEVER THE TERMS "PURCHASE" AND "SALE" MAY MEAN IN OTHER
CONTEXTS,' THEY SHOULD BE CONSTRUED IN A MANNER WHICH WILL EFFECTUATE
THE PURPOSES OF THE SPECIFIC SECTION OF THE (SECURITIES EXCHANGE) ACT
IN WHICH THEY ARE USED.  SEC V. NATIONAL SECURITIES, INC., 393 U.S.
453, 467."  ID., AT 696. 

MR. JUSTICE STEWART, WHILE ON THE COURT OF APPEALS, EXPLAINED THE
MANNER APPROPRIATE FOR THE CONSTRUCTION OF THE STATUTORY DEFINITIONS IN
THE CONTEXT OF SEC. 16(B): 

"EVERY TRANSACTION WHICH CAN REASONABLY BE DEFINED AS A PURCHASE
WILL BE SO DEFINED, IF THE TRANSACTION IS OF A KIND WHICH CAN POSSIBLY
LEND ITSELF TO THE SPECULATION ENCOMPASSED BY SECTION 16(B)." 
FERRAIOLO V. NEWMAN, 259 F.2D 342, 345 (CA6).  APPLYING THIS SALUTARY
APPROACH TOWARD THE STATUTORY DEFINITIONS, THE COURTS HAVE REASONED
THAT, BECAUSE OF THE OPPORTUNITIES FOR ABUSE INHERING IN HIS POSITION,
A DIRECTOR MUST ACCOUNT BOTH FOR PURCHASES MADE SHORTLY BEFORE HIS
APPOINTMENT, ADLER V. KLAWANS, 167 F.2D 840 (CA2), AND FOR SALES MADE
SHORTLY AFTER HIS RESIGNATION, FEDER V. MARTIN MARIETTA CORP., SUPRA.
"OPTIONS," WHICH PLAYED SUCH A LARGE ROLE IN THE MANIPULATIVE PRACTICES
DISCLOSED DURING THE 1930'S, /9/  ARE NOT ORDINARILY THOUGHT TO BE
"PURCHASES" OR "SALES" OF THE UNDERLYING COMMODITY; YET, BECAUSE OF THE
OPPORTUNITY FOR ABUSE INHERENT IN THE DEVICE, COURTS HAVE HELD THAT AN
OPTION CAN BE A "SALE," WHEN GRANTED, WITHIN THE MEANING OF SEC.
16(B).  BERSHAD V. MCDONOUGH, SUPRA.  BUT, IN ORDER TO BRING THE
UNDERLYING TRANSACTION WITHIN THE SIX-MONTH LIMITATION OF SEC. 16(B),
AN OPTION WAS ALSO HELD TO BE A "PURCHASE" WHEN EXERCISED.  BOOTH V.
VARIAN ASSOCIATES, 334 F.2D 1 (CA1).  SIMILARLY, WHERE THERE WAS AN
OPPORTUNITY FOR THE ABUSE OF INSIDE INFORMATION, A CONVERSION OF
DEBENTURES INTO COMMON STOCK WAS HELD TO BE A "SALE," PARK & TILFORD V.
SCHULTE, 160 F.2D 984 (CA2); BUT WHERE THERE WAS NO SUCH OPPORTUNITY, A
SIMILAR CONVERSION WAS HELD NOT TO BE.  BLAU V. LAMB, 363 F.2D 507
(CA2). 

THE COMMON THREAD RUNNING THROUGH THE DECISIONS IS THAT WHETHER WE
APPROACH THE PROBLEM OF THIS CASE AS A QUESTION OF "BENEFICIAL
OWNERSHIP" AT THE TIME OF THE SECOND TRANSACTION, OR AS A QUESTION
WHETHER THE TWO TRANSACTIONS WERE ONE "SALE," IT "IS NOT IN ANY EVENT
PRIMARILY A SEMANTIC ONE, BUT MUST BE RESOLVED IN THE LIGHT OF THE
LEGISLATIVE PURPOSE-- TO CURB SHORT SWING SPECULATION BY INSIDERS." 
FERRAIOLO V. NEWMAN, SUPRA, AT 344. 

UNTIL TODAY, THE FEDERAL COURTS HAVE BEEN ALMOST UNIVERSALLY
FAITHFUL TO THIS PHILOSOPHY, "EVEN DEPARTING WHERE NECESSARY FROM THE
LITERAL STATUTORY LANGUAGE."  FEDER V. MARTIN MARIETTA CORP., SUPRA, AT
262.  THUS, A TENDER OFFER, ALTHOUGH IT MAY JUSTIFIABLY BE DESCRIBED AS
A SERIES OF DISCRETE PURCHASES, HAS BEEN TREATED AS A SINGLE PURCHASE. 
ABRAMS V. OCCIDENTAL PETROLEUM, 323 F.SUPP.  570, 579 (SDNY), REV'D ON
OTHER GROUNDS, 450 F.2D 157 (CA2).  AND, IN ORDER TO PREVENT A
CONSTRUCTION OF THE STATUTE WHEREBY 

"IT WOULD BE POSSIBLE FOR A PERSON TO PURCHASE A LARGE BLOCK OF
STOCK, SELL IT OUT UNTIL HIS OWNERSHIP WAS REDUCED TO LESS THAN 10%,
AND THEN REPEAT THE PROCESS, AD INFINITUM," THE PHRASE "AT THE TIME OF
THE PURCHASE AND SALE," ON WHICH THE COURT PLACES SUCH HEAVY RELIANCE,
WAS DEFINED TO MEAN "SIMULTANEOUSLY WITH"  PURCHASE, AND "JUST PRIOR
TO" SALE.  STELLA V. GRAHAM-PAIGE MOTORS, 104 F.SUPP.  957, 959
(SDNY).  AS ONE COMMENTATOR NOTED, THIS HOLDING 

"NECESSITATES A LOGICAL INCONSISTENCY INSOFAR AS THE PHRASE 'AT THE
TIME OF PURCHASE AND SALE' IS TREATED AS MEANING THE MOMENT AFTER
PURCHASE AND THE MOMENT BEFORE SALE."  RECENT DEVELOPMENTS, 57
COL.L.REV.  287, 289.  YET, AS IN THE PRESENT CASE, "THE DISCREPANCY
SEEMS SLIGHT IN VIEW OF THE BROADER STATUTORY POLICIES INVOLVED." 
IBID. 

THUS, SHOULD THE BROADLY REMEDIAL STATUTORY PURPOSE OF SEC. 16(B)
REQUIRE IT, THE LITERAL LANGUAGE OF THE STATUTE WOULD NOT PRECLUDE AN
ANALYSIS IN WHICH THE TWO TRANSACTIONS HEREIN AT ISSUE ARE TREATED AS
PART OF A SINGLE "SALE." 

        III 

THE POTENTIAL FOR ABUSE OF INSIDE INFORMATION IN THE PRESENT CASE IS
SELF-EVIDENT.  EQUALLY OBVIOUS IS THE FACT THAT THE MODERN-DAY INSIDER
IS NO LESS PRONE THAN HIS COUNTERPART OF A GENERATION AGO TO SUCCUMB TO
THE LURE OF INSIDER TRADING WHERE WINDFALL PROFITS ARE IN THE OFFING. 
INDEED, IN A SURVEY OF "REPUTABLE" BUSINESSMEN, 42% OF THOSE RESPONDING
INDICATED THEY WOULD THEMSELVES TRADE ON INSIDE INFORMATION, AND 61%
BELIEVED THAT THE "AVERAGE" EXECUTIVE WOULD DO LIKEWISE.  /10/  THUS,
IT WOULD APPEAR BOTH THAT SEC. 16(B) WAS DIRECTED AT SUCH CONDUCT AS IS
HEREIN AT ISSUE AND THAT THE PROTECTION SEC. 16(B) AFFORDS IS AS
NECESSARY TODAY AS IT WAS WHEN THE STATUTE WAS ENACTED. 

DESPITE THE FACT THAT THE DECISION BELOW STRIKES AT THE VITALS OF
THE STATUTE, THE COURT SAYS IT MUST BE AFFIRMED BECAUSE TO TREAT "TWO
SALES AS ONE UPON PROOF OF A PRE-EXISTING INTENT BY THE SELLER"
DETRACTS FROM THE "MECHANICAL QUALITY" OF THE STATUTE AND IS "SCARCELY
IN HARMONY WITH THE CONGRESSIONAL DESIGN OF PREDICATING LIABILITY UPON
AN 'OBJECTIVE MEASURE OF PROOF.'"  ANTE, AT 425. 

THIS "MECHANICAL QUALITY," HOWEVER, IS ILLUSORY.     "THERE IS NO
RULE SO 'OBJECTIVE' ('AUTOMATIC' WOULD BE A BETTER WORD) THAT IT DOES
NOT REQUIRE SOME MENTAL EFFORT IN APPLYING IT ON THE PART OF THE PERSON
OR PERSONS ENTRUSTED BY LAW WITH ITS APPLICATION."  BLAU V. LAMB,
SUPRA, AT 520. 

THUS THE DETERRENT VALUE OF SEC. 16(B) DEPENDS NOT SO MUCH ON ITS
VAUNTED "OBJECTIVITY" AS ON ITS "THOROUGH-GOING" QUALITIES. 

"WE MUST SUPPOSE THAT THE STATUTE WAS INTENDED TO BE THOROUGHGOING,
TO SQUEEZE ALL POSSIBLE PROFITS OUT OF STOCK TRANSACTIONS, AND THUS TO
ESTABLISH A STANDARD SO HIGH AS TO PREVENT ANY CONFLICT BETWEEN THE
SELFISH INTEREST OF A FIDUCIARY OFFICER, DIRECTOR, OR STOCKHOLDER AND
THE FAITHFUL PERFORMANCE OF HIS DUTY."  SMOLOWE V. DELENDO CORP., 136
F.2D 231, 239 (CA2). 

INSIDERS HAVE COME TO RECOGNIZE THAT "IN ORDER NOT TO DEFEAT (SEC.
16(B)'S) AVOWED OBJECTIVE," FEDERAL COURTS WILL RESOLVE "ALL DOUBTS AND
AMBIGUITIES AGAINST INSIDERS."  BLAU V. OPPENHEIM, 250 F.SUPP.  881,
884-885. 

MOREOVER, COURTS HAVE NOT SHIRKED THIS RESPONSIBILITY SIMPLY
BECAUSE, AS HERE, SUCH A RESOLUTION MAY REQUIRE A FACTUAL INQUIRY.  IN
BLAU V. LEHMAN, SUPRA, THIS COURT SAID THAT ON AN APPROPRIATE FACTUAL
SHOWING, AN INVESTMENT BANKING FIRM MIGHT BE FORCED TO DISGORGE PROFITS
MADE FROM SHORT-SWING TRADES IN THE STOCK OF A CORPORATION ON WHOSE
BOARD A PARTNER OF THE FIRM WAS "DEPUTIZED" TO SIT.  ID., AT 410.  IN
COLBY V. KLUNE, 178 F.2D 872 (CA2), CITED BY THE MAJORITY, THE COURT
PERMITTED A FACTUAL INQUIRY INTO THE POSSIBILITY THAT AN INDIVIDUAL
MIGHT BE A "DE FACTO" OFFICER OR DIRECTOR, ALTHOUGH NOT FORMALLY
LABELED AS SUCH.  VIRTUALLY ALL COURTS FACED WITH SEC. 16(B) PROBLEMS
NOW INQUIRE INTO THE OPPORTUNITY FOR ABUSE INHERENT IN A PARTICULAR
TYPE OF TRANSACTION, IN ORDER TO SEE IF APPLYING THE STATUTE WOULD
SERVE ITS PURPOSES.  SEE, E.G., BERSHAD V. MCDONOUGH, SUPRA; BLAU V.
MAX FACTOR & CO., 342 F.2D 304 (CA9); BOOTH V. VARIAN ASSOCIATES,
SUPRA; FERRAIOLO V. NEWMAN, SUPRA.  AND EVEN UNDER THE NARROW APPROACH
OF THE MAJORITY, I PRESUME IT WOULD STILL BE OPEN, IN CASES LIKE THIS
ONE, TO INQUIRE WHETHER THE OSTENSIBLY SEPARATE SALES ARE "LEGALLY
TIED."  /11/  IT FOLLOWS THAT THE NECESSITY OF A FACTUAL INQUIRY IS NO
BAR TO THE APPLICATION OF THE STATUTE TO THE PRESENT CASE. 

IT IS BEYOND QUESTION, OF COURSE, THAT A PRIME CONCERN OF THE
STATUTE WAS THAT A REQUIREMENT OF POSITIVE PROOF OF AN INSIDER'S
"INTENT" WOULD RENDER THE STATUTE INEFFECTIVE.  INSOFAR AS THE DISTRICT
COURT'S APPROACH APPEARS TO PLACE THE BURDEN ON THE PLAINTIFF TO
DEMONSTRATE THE EXISTENCE OF A "PLAN OF DISTRIBUTION," IT IS
JUSTIFIABLY OPEN TO CRITICISM.  THE BROAD SWEEP OF SEC. 16(B) REQUIRES
THAT A MINIMAL BURDEN BE PLACED ON PUTATIVE PLAINTIFFS. 

BUT THIS GOAL-- ELIMINATION OF PROOF PROBLEMS-- IS SUBSIDIARY TO THE
STATUTE'S MAIN AIM-- CURBING INSIDER SPECULATION.  WHATEVER "MECHANICAL
QUALITY" THE STATUTE POSSESSES, IT WAS INTENDED TO EASE THE PLAINTIFF'S
BURDEN, NOT TO INSULATE THE INSIDER'S PROFITS. 

THUS, WE SHOULD NOT CONCLUDE, AS DOES THE MAJORITY, THAT THERE IS NO
ENFORCEABLE WAY TO COMBAT THE POTENTIAL FOR SHARP PRACTICES WHICH
INHERES IN THE "SPLIT-SALE" SCHEME. 

"(THE 'OBJECTIVE' OR 'RULE OF THUMB' APPROACH NEED NOT COMPEL A
COURT TO WINK AT THE SUBSTANTIAL EFFECTS OF A TRANSACTION WHICH IS RIFE
WITH POTENTIAL SHARP PRACTICES IN ORDER TO PRESERVE THE EASY
APPLICATION OF THE SHORT-SWING PROVISIONS UNDER SECTION 16(B). 
CERTAINLY THE INTEREST OF SIMPLE APPLICATION OF THE PROHIBITIONS OF
PROVISION'S FUNCTION BY FORMALISTIC DEVICES."  BERSHAD V. MCDONOUGH,
SUPRA, AT 697 N.5. 

A SERIES OF SALES, SPACED CLOSE TOGETHER, IS MORE THAN LIKELY PART
OF A SINGLE PLAN OF DISPOSITION.  PLAIN COMMON SENSE WOULD INDICATE
THAT EMERSON'S CONDUCT IN THE PRESENT CASE HAD PROBABLY BEEN PLANNED,
EVEN IF THERE WERE NO CONFIRMATION IN THE FORM OF AN ADMISSION.  IT IS
STATISTICALLY PROBABLE THAT ANY SERIES OF SALES MADE BY A BENEFICIAL
OWNER OF MORE THAN 10%, WITHIN SIX MONTHS, IN WHICH HE DISPOSES OF A
MAJOR PART OF HIS HOLDINGS, WOULD BE SIMILARLY CONNECTED. 

WE, THEREFORE, SHOULD CONSTRUE THE STATUTE AS ALLOWING A REBUTTABLE
PRESUMPTION THAT ANY SUCH SERIES OF DISPOSITIVE TRANSACTIONS WILL BE
DEEMED TO BE PART OF A SINGLE PLAN OF DISPOSITION, AND WILL BE TREATED
AS A SINGLE "SALE" FOR THE PURPOSES OF SEC. 16(B).  /12/  BECAUSE THE
BURDEN WOULD BE ON THE DEFENDANT, NOT THE PLAINTIFF, SUCH A RULE WOULD
OPERATE WITH VIRTUALLY THE SAME LESS-THAN-PERFECTLY AUTOMATIC
EFFICIENCY THAT THE STATUTE NOW DOES, AND IT WOULD COMPORT FAR MORE
CLOSELY WITH THE STATUTE'S BROAD, REMEDIAL SWEEP THAN DOES THE APPROACH
TAKEN BY THE COURT. 

SUCH A RULE WOULD NOT, MOREOVER, IMPORT QUESTIONS OF "INTENT" INTO
THE STATUTORY SCHEME.  ANY FACTUAL INQUIRY WOULD INVOLVE ONLY AN
OBJECTIVE ANALYSIS OF THE CIRCUMSTANCES OF THE VARIOUS DISPOSITIONS IN
THE SERIES, APPLYING THE "VARIOUS TESTS" ESTABLISHED BY THE CASES "TO
DETERMINE WHETHER A TRANSACTION, OBJECTIVELY DEFINED, FALLS WITHIN OR
WITHOUT THE TERMS OF THE STATUTE.  ANTE, AT 424 N.4. 

ONLY IF A BENEFICIAL OWNER CARRIED AN AFFIRMATIVE BURDEN OF PROOF--
THAT HIS SERIES OF DISPOSITIVE TRANSACTIONS WAS NOT OF A TYPE THAT
AFFORDED HIM AN OPPORTUNITY FOR SPECULATIVE ABUSE OF HIS POSITION AS AN
INSIDER-- SHOULD WE SAY THAT HE WAS NOT SUCH A BENEFICIAL OWNER "AT THE
TIME OF . . . SALE."  /13/

        IV 

THE COURT SUGGESTS TWO ADDITIONAL FACTORS MILITATING AGAINST
EMERSON'S LIABILITY UNDER SEC. 16(B).  FIRST, THE COURT IMPLIES THAT IT
IS CONTRARY TO THE SEC'S OWN RULES.  THIS ARGUMENT RESTS ON THE POWER
GIVEN TO THE SEC BY SEC. 16(B) TO EXEMPT FROM ITS SCOPE THOSE
TRANSACTIONS THAT ARE "NOT COMPREHENDED WITHIN THE PURPOSE" OF THE
10, PROVIDING THAT TRANSACTIONS NOT REQUIRED TO BE REPORTED UNDER SEC.
16(A) ARE EXEMPT FROM SEC. 16(B) AS WELL. 

THE SEC'S REPORTING REQUIREMENTS ARE CONTAINED IN "FORM 4."  UNTIL
RECENTLY, THIS FORM REQUIRED INSIDERS-- OFFICERS, DIRECTORS, AND MORE
THAN-10% OWNERS-- ONLY TO REPORT TRANSACTIONS OCCURRING IN A CALENDAR
MONTH IN WHICH THEY MET THE FORMAL REQUIREMENTS TO BE DENOMINATED SUCH
AN OUTSIDER.  EMERSON SOLD DOWN TO 9.96% IN AUGUST, THEN SOLD OUT IN
SEPTEMBER.  PRESUMABLY, IT DID NOT HAVE TO REPORT THE SEPTEMBER SALE ON
FORM 4, AND THUS, BY OPERATION OF RULE 16A-10, THE SEPTEMBER SALE IS
ARGUED TO BE EXEMPT FROM THE OPERATIONS OF SEC. 16(B) AS WELL. 

INASMUCH AS THE SEC'S POWER TO PROMULGATE SUCH A RULE IS NOT "A
MATTER SOLELY WITHIN THE EXPERTISE OF THE SEC AND THEREFORE BEYOND THE
SCOPE OF JUDICIAL REVIEW," GREENE V. DIETZ, 247 F.2D 689, 692 (CA2),
THIS ARGUMENT LOSES SUBSTANTIALLY ALL ITS FORCE AFTER FEDER V. MARTIN
MARIETTA CORP., SUPRA.  THERE, THE COURT HELD, IN THE FACE OF THE
IDENTICAL ARGUMENT THAT RULE 16A-10 WAS INVALID, INSOFAR AS IT OPERATED
THROUGH FORM 4 TO EXEMPT TRANSACTIONS BY EX-DIRECTORS FROM LIABILITY
UNDER SEC. 16(B).  THE COURT REASONED THAT THE LIMITATION OF THE
REPORTING REQUIREMENT TO THE CALENDAR MONTH IN WHICH A TRANSACTION
OCCURRED WAS "AN ARBITRARY . . . (AND) UNNECESSARY LOOPHOLE IN THE
EFFECTIVE OPERATION OF THE STATUTORY SCHEME," ID., AT 269, BECAUSE IT
REQUIRED REPORTING OF SOME TRANSACTIONS 30 DAYS AFTER AN EX-DIRECTOR'S
RESIGNATION, BUT INSULATED OTHERS TAKING PLACE THE VERY NEXT DAY. 

FORM 4 DID, HOWEVER, EXTEND SEC. 16(B) LIABILITY TO AT LEAST SOME
TRANSACTIONS OCCURRING AFTER RESIGNATION. 

"THEREFORE, INASMUCH AS FORM 4, A VALID EXERCISE OF THE SEC'S POWER,
HAS ALREADY EXTENDED SEC. 16(B) TO COVER, IN PART, AN EX-DIRECTOR'S
ACTIVITIES, A LESS ARBITRARILY DEFINED REPORTING REQUIREMENT FOR EX
DIRECTORS IS BUT A LOGICAL EXTENSION OF SEC. 16(B) COVERAGE, WOULD BE A
COVERAGE IN LINE WITH THE CONGRESSIONAL AIMS, AND WOULD AFFORD GREATER
ASSURANCE THAT THE LAWMAKERS' INTENT WILL BE EFFECTUATED.  IBID.  /14/ 

THIS ANALYSIS IS EQUALLY APPLICABLE TO THE REPORTING REQUIREMENTS OF
EX-10% OWNERS. 

SECOND, THE COURT ANALOGIZES EMERSON'S "PLAN" TO A SALE "CONCEIVED"
DURING THE SIX-MONTH PERIOD BUT NOT MADE UNTIL AFTER THE EXPIRATION OF
THE STATUTORY LIMITATION.  THE COURT INCORRECTLY ASSUMES THAT SUCH A
SALE COULD NOT FALL WITHIN SEC. 16(B).  IF THE "CONCEPTION" WERE
SUFFICIENTLY CONCRETE TO BE CONSTRUED AS A "CONTRACT TO SELL," OR AN
"OPTION," THERE WOULD INDEED BE LIABILITY.  CF. BERSHAD V. MCDONOUGH,
SUPRA.  IN ANY EVENT, THE ANALOGY FAILS BECAUSE THE PURPOSES OF THE SIX
MONTH RULE ARE DIFFERENT FROM THE PURPOSE OF THE 10% RULE. 

THE SIX-MONTH LIMITATION IS BASED ON CONGRESS' ESTIMATION THAT
BEYOND THIS TIME PERIOD, NORMAL MARKET FLUCTUATIONS SUFFICIENTLY DETER
ATTEMPTS TO TRADE ON INSIDE INFORMATION.  BLAU V. MAX FACTOR & CO.,
SUPRA, AT 3 08.  THUS, IT IS CONSISTENT WITH THE STATUTORY SCHEME TO
PERMIT AN INSIDER TO "PLAN" A SALE WITHIN THE SIX-MONTH PERIOD THAT
WILL NOT TAKE PLACE UNTIL SIX MONTHS HAVE PASSED FROM A MATCHING
PURCHASE. 

BUT THE 10% RULE IS BASED UPON A CONCLUSIVE STATUTORY PRESUMPTION
THAT OWNERSHIP OF THIS QUANTITY OF STOCK SUFFICES TO PROVIDE ACCESS TO
INSIDE INFORMATION.  NEWMARK V. RKO GENERAL, INC., 425 F.2D 348 (CA2). 
THE RATIONALE OF THE SIX-MONTH RULE IMPLIES THAT SUCH INFORMATION WILL
BE PRESUMED TO BE USEFUL DURING THAT LENGTH OF TIME.  IT FOLLOWS THAT
ALL SALES BY A MORE-THAN-10% OWNER WITHIN THE SIX-MONTH PERIOD CARRY
THE PRESUMPTION OF A TAINT, EVEN IF A PRIOR TRANSACTION WITHIN THE
PERIOD HAS REDUCED THE BENEFICIAL OWNERSHIP TO 10% OR BELOW. 

        V 

IN SUM, NEITHER THE STATUTORY LANGUAGE NOR THE PURPOSES ARTICULATED
BY THE MAJORITY JUSTIFY THE RESULT REACHED TODAY.  RATHER THAN DEPRIVE
SEC. 16(B) OF VITALITY IN THE COURSE OF A VAIN SEARCH FOR A NONEXISTENT
PURITY OF OPERATION, WE SHOULD REVERSE THE JUDGMENT OF THE COURT OF
APPEALS AND REMAND THE CASE FOR FURTHER PROCEEDINGS. 

/1/  15 U.S.C. 78PB); 

"FOR THE PURPOSE OF PREVENTING THE UNFAIR USE OF INFORMATION WHICH
MAY HAVE BEEN OBTAINED BY SUCH BENEFICIAL OWNER, DIRECTOR, OR OFFICER
BY REASON OF HIS RELATIONSHIP TO THE ISSUER, ANY PROFIT REALIZED BY HIM
FROM ANY PURCHASE AND SALE, OR ANY SALE AND PURCHASE, OF ANY EQUITY
SECURITY OF SUCH ISSUER (OTHER THAN AN EXEMPTED SECURITY) WITHIN ANY
PERIOD OF LESS THAN SIX MONTHS, UNLESS SUCH SECURITY WAS ACQUIRED IN
GOOD FAITH IN CONNECTION WITH A DEBT PREVIOUSLY CONTRACTED, SHALL INURE
TO AND BE RECOVERABLE BY THE ISSUER, IRRESPECTIVE OF ANY INTENTION ON
THE PART OF SUCH BENEFICIAL OWNER, DIRECTOR, OR OFFICER IN ENTERING
INTO SUCH TRANSACTION OF HOLDING THE SECURITY PURCHASED OR OF NOT
REPURCHASING THE SECURITY SOLD FOR A PERIOD EXCEEDING SIX MONTHS.  SUIT
TO RECOVER SUCH PROFIT MAY BE INSTITUTED AT LAW OR IN EQUITY IN ANY
COURT OF COMPETENT JURISDICTION BY THE ISSUER, OR BY THE OWNER OF ANY
SECURITY OF THE ISSUER IN THE NAME AND IN BEHALF OF THE ISSUER IF THE
ISSUER SHALL FAIL OR REFUSE TO BRING SUCH SUIT WITHIN SIXTY DAYS AFTER
REQUEST OR SHALL FAIL DILIGENTLY TO PROSECUTE THE SAME THEREAFTER; BUT
NO SUCH SUIT SHALL BE BROUGHT MORE THAN TWO YEARS AFTER THE DATE SUCH
PROFIT WAS REALIZED.  THIS SUBSECTION SHALL NOT BE CONSTRUED TO COVER
ANY TRANSACTION WHERE SUCH BENEFICIAL OWNER WAS NOT SUCH BOTH AT THE
TIME OF THE PURCHASE AND SALE, OR THE SALE AND PURCHASE, OF THE
SECURITY INVOLVED, OR ANY TRANSACTION OR TRANSACTIONS WHICH THE
COMMISSION BY RULES AND REGULATIONS MAY EXEMPT AS NOT COMPREHENDED
WITHIN THE PURPOSE OF THIS SUBSECTION." 

/2/  "NEXT COMES THE EVERLASTING PROBLEM OF PROTECTING THE FELLOW ON
THE OUTSIDE FROM THE INSIDER.  . . . THAT IS, THE PROBLEM OF PROTECTING
THE STOCKHOLDER-- AND EVERY FELLOW WHO BUYS INTO THE MARKET IS A
STOCKHOLDER-- WHO DOES NOT KNOW AS MUCH ABOUT THE COMPANY AS THE FELLOW
ON THE INSIDE.  . . . (THE POOR LITTLE FELLOW DOES NOT KNOW WHAT HE IS
GETTING INTO, AND IT IS JUST AS IMPORTANT IN PREVENTING UNWARRANTED AND
DESTRUCTIVE SPECULATION, TO HAVE THE FELLOW ON THE OUTSIDE PROTECTED
FROM THE FELLOW ON THE INSIDE WHO IS AN OFFICER OR DIRECTOR OF THE
CORPORATION OR A POOL WITH INSIDE INFORMATION, AS IT IS NOT TO LET THE
LITTLE FELLOW BUY TOO MUCH STOCK BY SETTING THE MARGINS TOO LOW." 
HEARINGS ON H.R. 7852 AND H.R. 8720 BEFORE THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, 73D CONG., 2D SESS., 85 (1934)
(TESTIMONY OF THOMAS CORCORAN). 

/3/  ONE PARTICULARLY GLARING EXAMPLE CONCERNED TWO BROTHERS WHOSE
OWNERSHIP OF A LITTLE OVER 10% OF A COMPANY'S STOCK GAVE THEM A
CONTROLLING INTEREST.  JUST BEFORE THE COMPANY VOTED TO OMIT A
DIVIDEND, THE BROTHERS DISPOSED OF THEIR HOLDINGS FOR ABOUT
$16,000,000.  WHEN NEWS OF THE DIVIDEND OMISSION BECAME PUBLIC A SHORT
TIME LATER, THEY REPURCHASED AN EQUIVALENT AMOUNT OF STOCK FOR ABOUT
$7,000,000, SHOWING A PROFIT OF SOME $9,000,000 ON THE SHORT-SWING
DEAL.  S. REP. NO. 792, 73D CONG., 2D SESS., 9 (1934). 

MUCH OF THE INSIDER ABUSE INVOLVED PARTICIPATION IN SO-CALLED
"POOLS," WHICH WERE DUMMY ACCOUNTS IN A CORPORATION'S STOCK ESTABLISHED
TO BUY AND SELL, AT THE SAME TIME, AND AT A FRENETIC PACE.  BY SO
CHURNING THE ACCOUNT, IT WAS OFTEN POSSIBLE TO ENGINEER A FALSE
IMPRESSION OF IMMENSE ACTIVITY IN THE STOCK, AND TO ARRANGE
SPECTACULAR, BUT ARTIFICIAL, PRICE RISES.  ONE POOL BROUGHT AND SOLD
ALMOST 1,500,000 SHARES OF RCA STOCK IN A SINGLE SEVEN-DAY PERIOD IN
1929, AT A NET PROFIT TO ITS MEMBERS OF ALMOST $5,000,000.  S. REP. NO.
1455, 73D CONG., 2D SESS., 32-33, 47 (1934).  ANOTHER FAMOUS POOL
INVOLVED THE STOCK OF THE AMERICAN COMMERCIAL ALCOHOL CO. DURING THE
SUMMER OF 1933, EIGHT INSIDERS AND THEIR ASSOCIATES REAPED A PROFIT OF
$300,000 ON AN INVESTMENT OF $62,000.  A THIRD POOL, IN THE STOCK OF
THE FOX FILM CORPORATION, MADE $2,000,000 IN FIVE MONTHS.  THIS POOL
WAS NOTABLE FOR THE EXTENT TO WHICH LARGE STOCKHOLDERS PARTICIPATED. 
ID., AT 55-68.  DURING 1929, OVER 100 STOCKS LISTED ON THE NEW YORK
STOCK EXCHANGE WERE SUBJECTS OF POOLS.  ID., AT 32.  INSIDER
PARTICIPATION IN THESE POOLS WAS UBIQUITOUS.  SEE GENERALLY F. PECORA,
WALL STREET UNDER OATH (1939). 

/4/  SEE SEC, REPORT ON INVESTIGATION IN THE MATTER OF RICHARD
WHITNEY PURSUANT TO SECTION 21(A) OF THE SECURITIES EXCHANGE ACT OF
1934 (NOV. 1, 1938). 

/5/  SEE PECORA, SUPRA, N. 3, AT 131-188. 

/6/  ID., AT 70-130. 

/7/  THE SIX-MONTH PERIOD IS, AS MR. CORCORAN SAID DURING THE
HEARINGS ON THE BILL, A "CRUDE RULE OF THUMB," HEARINGS ON STOCK
EXCHANGE PRACTICES BEFORE THE SENATE COMMITTEE ON BANKING AND CURRENCY
PURSUANT TO S. RES. 84, 56, AND 97, 73D CONG., 1ST AND 2D SESS., PT.
15, P. 6557.  IT REPRESENTS A BALANCE STRUCK BETWEEN THE NEED TO DETER
SHORT-SWINGS BASED ON INSIDE INFORMATION AND A DESIRE TO AVOID UNDULY
INHIBITING LONG-TERM CORPORATE INVESTMENT.  S. REP. NO. 792, 73D CONG.,
2D SESS., 6.  SIX MONTHS WAS HIT UPON, PRESUMABLY, ON THE VIEW THAT
"WHERE THE INSIDER IS OBLIGED TO HOLD THE ORIGINAL SECURITY . . . FOR
LONGER THAN SIX MONTHS . . . MARKET FLUCTUATIONS ARE LIKELY TO WIPE OUT
HIS PROFITS."  COMMENT, 117 U.PA.L.REV.  1034, 1054 (1969). 

/8/  "THIS APPROACH MAXIMIZED THE ABILITY OF THE RULE TO ERADICATE
SPECULATIVE ABUSES BY REDUCING DIFFICULTIES IN PROOF.  SUCH ARBITRARY
AND SWEEPING COVERAGE WAS DEEMED NECESSARY TO INSURE THE OPTIMUM
PROPHYLACTIC EFFECT."  BERSHAD V. MCDONOUGH, 428 F.2D 693, 696 (CA7). 

IT IS SOMEWHAT ANOMALOUS THAT THE MAJORITY RELIES ON A FEATURE OF THE
STATUTORY SCHEME DESIGNED TO BROADEN ITS SCOPE IN ORDER TO INSULATE
FROM THE OPERATION OF THE STATUTE A DEVICE BY WHICH THE GOALS OF THE
STATUTE CAN BE LARGELY FRUSTRATED. 

/9/ SEE TWENTIETH CENTURY FUND, STOCK MARKET CONTROL 114-118
(1934). 

/10/  BAUMHART, HOW ETHICAL ARE BUSINESSMEN?, HARV. BUS.  REV., JULY
AUG.  1961, P. 6, AT 16.  THE SURVEY HAD POSED THE FOLLOWING
HYPOTHETICAL: 

"WHAT WOULD YOU DO IF . . . AS A DIRECTOR OF A LARGE CORPORATION,
YOU LEARNED AT A BOARD MEETING OF AN IMPENDING MERGER WITH A SMALLER
COMPANY?  SUPPOSE THIS COMPANY HAS HAD AN UNPROFITABLE YEAR, AND ITS
STOCK IS SELLING AT A PRICE SO LOW THAT YOU ARE CERTAIN IT WILL RISE
WHEN NEWS OF THE MERGER BECOMES PUBLIC KNOWLEDGE.  ID., AT 7. 

/11/  SUCH AN INQUIRY MIGHT WELL BE EXTENSIVE.  THE FOLLOWING
COMMENTARY, AIMED AT THE COURT OF APPEALS DECISION BELOW, APPLIES WITH
EQUAL FORCE TO THE MAJORITY'S APPROACH: 

"EVEN IF THE STATUTE COULD BE CONSTRUED AS ALLOWING AN EXCEPTION FOR
A SEVERED SALE OF THE FINAL 9.9 PERCENT OF STOCK OTHERWISE WITHIN
THE EMERSON DECISION PROVIDES NO GUIDELINES.  ALL IT SAYS IS:  'THE
FACTUAL QUESTION AS TO WHETHER A PARTICULAR SALE IS A SEPARATE AND
INDEPENDENT SALE IS A MATTER FOR DECISION UNDER THE PECULIAR FACTS OF
THE PARTICULAR CASE.  IN THIS REGARD EACH CASE MUST STAND OR FALL ON
ITS OWN FACTS.'  WHAT FACTS?  WHAT OF SEPARATE SALES TO THE SAME
VENDEE"  HOW SEPARATE MUST THE PARTIES BE-- DIFFERENT COMPANIES,
DIFFERENT CORPORATIONS, DIFFERENT ENTITIES?  MUST THERE BE AN INTERVAL
BETWEEN THE SALES?  HOW LONG?  IF EMERSON IS TO BE FOLLOWED, WOULD THE
QUESTION BE NOT SO MUCH HOW DISCRETE ( ) THE SALES ARE AS HOW DISCREET
COUNSEL HAS BEEN?  THE INQUIRY SEEMS TO LEAD AWAY FROM THE LEGISLATIVE
INTENT THAT ALL POTENTIAL VIOLATORS BE HELD TO THE FULL SANCTIONS OF
OMITTED). 

/12/  SUCH A PRESUMPTION IS NOT A NOVEL SUGGESTION IN THE
INTERPRETATION OF SECURITIES LEGISLATION.  THE SECURITIES ACT OF 1933,
48 STAT. 74, AS AMENDED, 15 U.S.C. 77A ET SEQ., FOR EXAMPLE, REQUIRES
THAT PUBLIC SECURITIES OFFERINGS BE REGISTERED WITH THE SEC.  SEC. 5,
15 U.S.C. 77E.  BUT REGISTRATION IS NOT REQUIRED OF STOCK SOLD IN A SO
CALLED "PRIVATE PLACEMENT."  SEC. 4(2), 15 U.S.C. 77D(2).  THE
PURCHASER OF SUCH STOCK, HOWEVER, CANNOT AVOID THE REGISTRATION
REQUIREMENTS WHEN HE RESELLS IT UNLESS HIS ORIGINAL PURCHASE WAS NOT
MADE "WITH A VIEW TO . . . DISTRIBUTION."  SEC. 2(11), 15 U.S.C.
77B(11).  THE DIFFICULTIES INHERENT IN DETERMINING THIS ELUSIVE "VIEW,"
SEE 1 L.LOSS,SECURITIES REGULATION 665-687 (2D ED. 1961), HAVE PROMPTED
THE SUGGESTION THAT THERE BE A REBUTTABLE PRESUMPTION THAT A SALE MADE
WITHIN TWO YEARS OF PURCHASE INDICATES THE ORIGINAL PURCHASE WAS MADE
WITH A VIEW TO DISTRIBUTION.  4 ID., AT 2652 (SUPPLEMENT TO 2D ED.
1969); SEE ALSO THE WHEAT REPORT, DISCLOSURE TO INVESTORS 165 (CCH
1969). 

A SIMILAR REBUTTABLE PRESUMPTION APPLIES IN THE CASE OF A
"CONTROLLING PERSON" (AS DEFINED IN RULE 405, 17 CFR 230.405(F)).  SUCH
A PERSON NEED NOT REGISTER HIS SALES UNDER THE 1933 ACT IF IN ANY SIX
MONTH PERIOD THEY AMOUNT TO NO MORE THAN 1% OF THE ISSUER'S OUTSTANDING
STOCK.  RULE 154, 17 CFR 230.154.  BUT, "IF A PLAN EXISTS TO EFFECT A
SERIES OF SALES DURING SUCCESSIVE 6 MONTHS' PERIODS, SUCH SALES CANNOT
BE CONSIDERED IN THE CATEGORY OF ROUTINE TRADES BUT MUST BE DEEMED A
DISTRIBUTION NOT EXEMPTED BY THE RULE."  SECURITIES ACT RELEASE NO.
4818, 31 FED.REG.  2545 (1966). 

DIFFERENT POLICIES, OF COURSE, UNDERLIE THE 1933 AND 1934 ACTS. 
YET, THE ABOVE-DESCRIBED PROVISIONS OF THE 1933 ACT, LIKE SEC. 16(B) IN
THE 1934 ACT, ARE AIMED AT DETERRING CERTAIN TRANSACTIONS BECAUSE OF
THEIR INHERENT OPPORTUNITIES FOR ABUSE.  THE 1933 ACT PRESUMPTIONS ARE
BASED ON A JUDGMENT THAT A SHORT-TERM SERIES OF SALES IS STATISTICALLY
LIKELY TO REFLECT AN "INTENT" TO ENGAGE IN A PUBLIC DISTRIBUTION
WITHOUT REGISTRATION.  THE PRESUMPTION I WOULD APPLY IN THE CASE OF
SEC. 16(B) IS JUSTIFIED BY A SIMILAR STATISTICAL LIKELIHOOD THAT A
SERIES OF DISPOSITIVE TRANSACTIONS, LIKE EMERSON'S, UNDERTAKEN WITHIN
SIX MONTHS OF A MATCHING PURCHASE, WAS PURSUANT TO A "PLAN OF
DISPOSITION." 

/13/  IT IS CONCEDED THAT EMERSON COULD NOT MEET SUCH A BURDEN IN
THE PRESENT CASE.  IN GENERAL, AN INSIDER COULD PERHAPS DEFEAT THE
PRESUMPTION OF A PLAN BY SHOWING "CHANGED CIRCUMSTANCES" SIMILAR TO
THOSE REQUIRED TO AVOID REGISTRATION REQUIREMENTS UNDER THE PRIVATE
OFFERING EXEMPTION OF THE 1933 ACT.  SEE 1 LOSS, SECURITIES REGULATION,
SUPRA, AT 665-673; 4 ID., AT 2646-2654 (1969). 

/14/  IN RESPONSE TO THE FEDER CASE, THE SEC AMENDED ITS RULES TO
REQUIRE DISCLOSURE OF ALL TRANSACTIONS BY DIRECTORS AND OFFICERS WITHIN
SIX MONTHS PRIOR TO THEIR APPOINTMENT AND FOR SIX MONTHS AFTER THEIR
RESIGNATIONS.  RULE 16A-1, 17 CFR 240.16A-1(D), (E) (AS AMENDED, SEPT.
30, 1969).  THUS, THE RESTRICTIVE REPORTING REQUIREMENTS RELIED UPON BY
THE MAJORITY APPLY ONLY TO BENEFICIAL OWNERS, ITSELF AN ARBITRARY
DISTINCTION. 

THOMAS P. MULLIGAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE PATRICK J. AMER, STEPHEN J. BURNS, AND KENNETH S.
TEASDALE. 

ALBERT E. JENNER, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE WESLEY G. HALL, R. H. MCROBERTS, AND THOMAS C. WALSH. 

WALTER P. NORTH ARGUED THE CAUSE FOR THE SECURITIES AND EXCHANGE
COMMISSION AS AMICUS CURIAE.  WITH HIM ON THE BRIEFS WERE SOLICITOR
GENERAL GRISWOLD, SAMUEL HUNTINGTON, PHILIP A. LOOMIS, JR., AND JACOB
H. STILLMAN. 

WHITNEY NORTH SEYMOUR AND JOHN A. GUZZETTA FILED A BRIEF FOR GULF &
WESTERN INDUSTRIES, INC., AS AMICUS CURIAE. 
..END :






UNITED STATES V. TUCKER, 404 U.S. 443 


       UNITED STATES V. TUCKER

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 70-86.  ARGUED NOVEMBER 11, 1971-- DECIDED JANUARY 11,

           1972 


IN IMPOSING SENTENCE UPON A DEFENDANT CONVICTED OF BANK ROBBERY, A
FEDERAL DISTRICT JUDGE GAVE EXPLICIT CONSIDERATION TO THE DEFENDANT'S
RECORD OF PREVIOUS CONVICTIONS.  IT WAS LATER CONCLUSIVELY DETERMINED
THAT TWO OF THE PREVIOUS CONVICTIONS WERE CONSTITUTIONALLY INVALID,
HAVING BEEN OBTAINED IN VIOLATION OF GIDEON V. WAINWRIGHT, 372 U.S.
335.  HELD:  UNDER THESE CIRCUMSTANCES THE COURT OF APPEALS WAS CORRECT
IN REMANDING THE CASE TO THE DISTRICT COURT FOR RECONSIDERATION OF THE
SENTENCE IMPOSED UPON THE DEFENDANT.  PP. 446-449. 

431 F.2D 1292, AFFIRMED. 

STEWART J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, WHITE, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C.J., JOINED, POST, P. 449. 
POWELL AND REHNQUIST, JJ., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THE CASE. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1953 THE RESPONDENT, FORREST S. TUCKER, WAS BROUGHT TO TRIAL IN A
FEDERAL DISTRICT COURT IN CALIFORNIA UPON A CHARGE OF ARMED BANK
ROBBERY.  HE PLEADED NOT GUILTY.  FOUR FEMALE EMPLOYEES OF THE BANK
WERE CALLED AS WITNESSES FOR THE PROSECUTION, AND THEY IDENTIFIED THE
RESPONDENT AS THE ROBBER.  HE TESTIFIED IN HIS OWN BEHALF, DENYING
PARTICIPATION IN THE ROBBERY AND OFFERING AN ALIBI DEFENSE.  TO IMPEACH
THE CREDIBILITY OF HIS TESTIMONY, THE PROSECUTION WAS PERMITTED ON
CROSS-EXAMINATION TO ASK HIM WHETHER HE HAD PREVIOUSLY BEEN CONVICTED
OF ANY FELONIES.  HE ACKNOWLEDGED THREE PREVIOUS FELONY CONVICTIONS,
ONE IN FLORIDA IN 1938, ANOTHER IN LOUISIANA IN 1946, AND A THIRD IN
FLORIDA IN 1950.  AT THE CONCLUSION OF THE TRIAL THE JURY RETURNED A
VERDICT OF GUILTY.  IN THE ENSUING SENTENCING PROCEEDING THE DISTRICT
JUDGE CONDUCTED AN INQUIRY INTO THE RESPONDENT'S BACKGROUND, AND, THE
RECORD SHOWS, GAVE EXPLICIT ATTENTION TO THE THREE PREVIOUS FELONY
CONVICTIONS THE RESPONDENT HAD ACKNOWLEDGED.  /1/  THE JUDGE THEN
SENTENCED HIM TO SERVE 25 YEARS IN PRISON-- THE MAXIMUM TERM AUTHORIZED
BY THE APPLICABLE FEDERAL STATUTE, 18 U.S.C. 2133(D). 

SEVERAL YEARS LATER IT WAS CONCLUSIVELY DETERMINED THAT THE
RESPONDENT'S 1938 CONVICTION IF FLORIDA AND HIS 1946 CONVICTION IN
LOUISIANA WAS CONSTITUTIONALLY INVALID.  THIS DETERMINATION WAS MADE BY
THE SUPERIOR COURT OF ALAMEDA COUNTY, CALIFORNIA, UPON THAT COURT'S
FINDING IN A COLLATERAL PROCEEDING THAT THOSE CONVICTIONS HAD BEEN
UNREPRESENTED BY COUNSEL, AND THAT HE HAD BEEN "NEITHER ADVISED OF HIS
RIGHT TO LEGAL ASSISTANCE NOR DID HE INTELLIGENTLY AND UNDERSTANDINGLY
WAIVE THIS RIGHT TO THE ASSISTANCE OF COUNSEL."  /2/ 

THEREAFTER THE RESPONDENT INITIATED THE PRESENT LITIGATION. 
PROCEEDING UNDER 28 U.S.C. 2255, HE FILED A MOTION IN THE FEDERAL
DISTRICT COURT IN WHICH HE HAD BEEN CONVICTED IN 1953, CLAIMING THAT
INTRODUCTION AT THE 1943 TRIAL OF EVIDENCE OF HIS PRIOR INVALID
CONVICTIONS HAD FATALLY TAINTED THE JURY'S VERDICT OF GUILT.  UPON
CONSIDERATION OF THE MOTION, THE DISTRICT JUDGE AGREED THAT "THE USE OF
THE CONSTITUTIONALLY INVALID PRIOR CONVICTIONS ON CROSS-EXAMINATION FOR
IMPEACHMENT PURPOSES WAS ERROR," BUT FOUND THAT THE ERROR WAS HARMLESS
BEYOND A REASONABLE DOUBT, IN VIEW OF THE OVERWHELMING TRIAL EVIDENCE
THAT THE RESPONDENT HAD BEEN GUILTY OF THE BANK ROBBERY.  TUCKER V.
UNITED STATES, 299 F.SUPP.  1376.  SEE CHAPMAN V. CALIFORNIA, 386 U.S.
18; HARRINGTON V. CALIFORNIA, 395 U.S. 250. 

ON APPEAL, THE COURT OF APPEALS FOR THE NINTH CIRCUIT AGREED THAT IT
HAD BEEN "FIRMLY PROVED THAT THE EVIDENCE OF PRIOR CONVICTIONS DID NOT
CONTRIBUTE TO THE VERDICT OBTAINED AND THAT, WITH RESPECT TO THE
VERDICT OF GUILTY, THE ERROR IN RECEIVING SUCH EVIDENCE WAS THEREFORE
HARMLESS BEYOND A REASONABLE DOUBT."  IT WENT ON, HOWEVER, TO FIND THAT
THERE WAS "A REASONABLE PROBABILITY THAT THE DEFECTIVE PRIOR
CONVICTIONS MAY HAVE LED THE TRIAL COURT TO IMPOSE A HEAVIER PRISON
SENTENCE THAN IT OTHERWISE WOULD HAVE IMPOSED."  ACCORDINGLY, THE
APPELLATE COURT AFFIRMED THE REFUSAL TO VACATE THE CONVICTION, BUT
REMANDED THE CASE TO THE DISTRICT COURT FOR RESENTENCING "WITHOUT
CONSIDERATION OF ANY PRIOR CONVICTIONS WHICH ARE INVALID UNDER GIDEON
V. WAINWRIGHT, 372 U.S. 335."  431 F.2D 1292, 1293, 1294.  THE
GOVERNMENT CAME HERE WITH A PETITION FOR A WRIT OF CERTIORARI, WHICH WE
GRANTED.  402 U.S. 492. 

THE GOVERNMENT ASKS US TO REVERSE THE JUDGMENT OF THE COURT OF
APPEALS INSOFAR AS IT REMANDED THIS CASE TO THE DISTRICT COURT FOR
RESENTENCING.  IT ARGUES THAT A FEDERAL DISTRICT JUDGE HAS WIDE AND
LARGELY UNREVIEWABLE DISCRETION IN IMPOSING SENTENCE, AND THAT IN
EXERCISING THAT DISCRETION HIS RELEVANT INQUIRY IS NOT WHETHER THE
DEFENDANT HAS BEEN FORMALLY CONVICTED OF PAST CRIMES, BUT WHETHER AND
TO WHAT EXTENT THE DEFENDANT HAS IN FACT ENGAGED IN CRIMINAL OR
ANTISOCIAL CONDUCT.  FURTHER, THE GOVERNMENT ARGUES, IN VIEW OF OTHER
DETRIMENTAL INFORMATION ABOUT THE RESPONDENT POSSESSED AT THE TIME OF
SENTENCING BY THE TRIAL JUDGE, IT IS HIGHLY UNLIKELY THAT A DIFFERENT
SENTENCE WOULD HAVE BEEN IMPOSED EVEN IF THE JUDGE HAD KNOWN THAT TWO
OF THE RESPONDENT'S PREVIOUS CONVICTIONS WERE CONSTITUTIONALLY
INVALID.  ACCORDINGLY, THE GOVERNMENT CONCLUDES THAT TO NOW REMAND THIS
CASE FOR RESENTENCING WOULD IMPOSE AN "ARTIFICIAL" AND "UNREALISTIC"
BURDEN UPON THE DISTRICT COURT. 

IT IS SURELY TRUE, AS THE GOVERNMENT ASSERTS, THAT A TRIAL JUDGE IN
THE FEDERAL JUDICIAL SYSTEM GENERALLY HAS WIDE DISCRETION IN
DETERMINING WHAT SENTENCE TO IMPOSE.  IT IS ALSO TRUE THAT BEFORE
MAKING THAT DETERMINATION, A JUDGE MAY APPROPRIATELY CONDUCT AN INQUIRY
BROAD IN SCOPE, LARGELY UNLIMITED EITHER AS TO THE KIND OF INFORMATION
HE MAY CONSIDER, OR THE SOURCE FROM WHICH IT MAY COME.  UNITED STATES
V. TRIGG, 392 F.2D 860, 864; DAVIS V. UNITED STATES, 376 F.2D 535, 538;
CROSS V. UNITED STATES, 354 F.2D 512; UNITED STATES V. DOYLE, 348 F.2D
715, 721; UNITED STATES V. MAGLIANO, 336 F.2D 816, 822; FED. RULE CRIM.
PROC. 31(A)(2).  SEE WILLIAMS V. NEW YORK, 337 U.S. 241; NORTH CAROLINA
V. PEARCE, 395 U.S. 711, 723.  THE GOVERNMENT IS ALSO ON SOLID GROUND
IN ASSERTING THAT A SENTENCE IMPOSED BY A FEDERAL DISTRICT JUDGE, IF
WITHIN STATUTORY LIMITS, IS GENERALLY NOT SUBJECT TO REVIEW.  GORE V.
UNITED STATES, 357 U.S. 386, 393.  CF. YATES V. UNITED STATES, 356 U.S.
363. 

BUT THESE GENERAL PROPOSITIONS DO NOT DECIDE THE CASE BEFORE US.
FOR WE DEAL HERE, NOT WITH A SENTENCE IMPOSED IN THE INFORMED
DISCRETION OF A TRIAL JUDGE, BUT WITH A SENTENCE FOUNDED AT LEAST IN
PART UPON MISINFORMATION OF CONSTITUTIONAL MAGNITUDE.  AS IN TOWNSEND
V. BURKE, 334 U.S. 736, "THIS PRISONER WAS SENTENCED ON THE BASIS OF
ASSUMPTIONS CONCERNING HIS CRIMINAL RECORD WHICH WERE MATERIALLY
UNTRUE."  ID., AT 741.  THE RECORD IN THE PRESENT CASE MAKES EVIDENT
THAT THE SENTENCING JUDGE GAVE SPECIFIC CONSIDERATION TO THE
RESPONDENT'S PREVIOUS CONVICTIONS BEFORE IMPOSING SENTENCE UPON HIM. 
/3/  YET IT IS NOW CLEAR THAT TWO OF THOSE CONVICTIONS WERE WHOLLY
UNCONSTITUTIONAL UNDER GIDEON V. WAINWRIGHT, 372 U.S. 335.  /4/ 

WE NEED NOT SPECULATE ABOUT WHETHER THE OUTCOME OF THE RESPONDENT'S
1938 AND 1946 PROSECUTIONS WOULD NECESSARILY HAVE BEEN DIFFERENT IF HE
HAD HAD THE HELP OF A LAWYER.  /5/  SUCH SPECULATION IS NOT ONLY
FRUITLESS, BUT QUITE BESIDE THE POINT.  FOR THE REAL QUESTION HERE IS
NOT WHETHER THE RESULTS OF THE FLORIDA AND LOUISIANA PROCEEDINGS MIGHT
HAVE BEEN DIFFERENT IF THE RESPONDENT HAD HAD COUNSEL , BUT WHETHER THE
SENTENCE IN THE 1953 FEDERAL CASE MIGHT HAVE BEEN DIFFERENT IF THE
SENTENCING JUDGE HAD KNOWN THAT AT LEAST TWO OF THE RESPONDENT'S
PREVIOUS CONVICTIONS HAD BEEN UNCONSTITUTIONALLY OBTAINED.  /6/ 

WE AGREE WITH THE COURT OF APPEALS THAT THE ANSWER TO THIS QUESTION
MUST BE "YES."  FOR IF THE TRIAL JUDGE IN 1953 HAD BEEN AWARE OF THE
CONSTITUTIONAL INFIRMITY OF TWO OF THE PREVIOUS CONVICTIONS, THE
FACTUAL CIRCUMSTANCES OF THE RESPONDENT'S BACKGROUND WOULD HAVE
APPEARED IN A DRAMATICALLY DIFFERENT LIGHT AT THE SENTENCING
PROCEEDING.  INSTEAD OF CONFRONTING A DEFENDANT WHO HAD BEEN LEGALLY
CONVICTED OF THREE PREVIOUS FELONIES, THE JUDGE WOULD THEN HAVE BEEN
DEALING WITH A MAN WHO, BEGINNING AT AGE 17, HAD BEEN
UNCONSTITUTIONALLY IMPRISONED FOR MORE THAN TEN YEARS, INCLUDING FIVE
AND ONE-HALF YEARS ON A CHAIN GANG.  /7/  WE CANNOT AGREE WITH THE
GOVERNMENT THAT A RE-EVALUATION OF THE RESPONDENT'S SENTENCE BY THE
DISTRICT COURT EVEN AT THIS LATE DATE WILL BE EITHER "ARTIFICIAL" OR
"UNREALISTIC."  /8/ 

THE GIDEON CASE ESTABLISHED AN UNEQUIVOCAL RULE "MAKING IT
UNCONSTITUTIONAL TO TRY A PERSON FOR A FELONY IN A STATE COURT UNLESS
HE HAD A LAWYER OR HAD VALIDLY WAIVED ONE."  BURGETT V. TEXAS, 289 U.S.
109, 114.  IN BURGETT WE SAID THAT "(TO PERMIT A CONVICTION OBTAINED IN
VIOLATION OF GIDEON V. WAINWRIGHT TO BE USED AGAINST A PERSON EITHER TO
SUPPORT GUILT OR ENHANCE PUNISHMENT FOR ANOTHER OFFENSE . . . IS TO
ERODE THE PRINCIPLE OF THAT CASE."  ID., AT 115.  EROSION OF THE GIDEON
PRINCIPLE CAN BE PREVENTED HERE ONLY BY AFFIRMING THE JUDGMENT OF THE
COURT OF APPEALS REMANDING THIS CASE TO THE TRIAL COURT FOR
RECONSIDERATION OF THE RESPONDENT'S SENTENCE. 

              THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

/1/  AN FBI AGENT WAS PRESENT AT THE SENTENCING PROCEEDING.  THE
DISTRICT JUDGE BEGAN THE PROCEEDING BY STATING, "I WOULD LIKE TO HAVE
THE AGENT'S TESTIMONY WITH RESPECT TO THE PRIOR CONVICTIONS." 

THE AGENT TESTIFIED, IN RELEVANT PART, AS FOLLOWS:  "AS THE
DEFENDANT SAID, WHEN HE WAS A JUVENILE, I BELIEVE IT WAS IN 1938, HE
RECEIVED A TEN-YEAR SENTENCE IN FLORIDA.  . . .

  .          .          .          . 

" . . . HE SAID THERE WAS FIVE YEARS AND FOUR MONTHS ON THE CHAIN
GANG . . . AND HE SAID HE ACTUALLY SERVED TWO YEARS BEYOND THAT.  . . .

    .          .          .          . 

"IN 1950 MR. TUCKER WAS SENTENCED TO A FIVE YEAR TERM IN THE STATE
OF FLORIDA, FOR, I BELIEVE IT WAS BURGLARY, AND ON JANUARY THE 5, 1951,
WHILE IN CUSTODY IN THE HOSPITAL, HE ESCAPED. 

        .      .          .          . 

"IN 1946 HE WAS CONVICTED IN THE STATE OF LOUISIANA ON A FELONY
CHARGE AND GIVEN A TERM OF 4 YEARS. 

        .          .          .          . 

" . . . I BELIEVE IT WAS A BURGLARY." 

/2/  THE DECISION OF THE SUPERIOR COURT OF ALAMEDA COUNTY IS
UNREPORTED, BUT THE ACCURACY OF THAT COURT'S DETERMINATION IS NOT
QUESTIONED.  SEE IN RE TUCKER, 64 CAL.2D 15, 409 P.2D 921; TUCKER V.
CRAVEN, 421 F.2D 139. 

/3/  SEE N. 1, SUPRA. 

/4/  THE RESPONDENT'S CONVICTIONS OCCURRED YEARS BEFORE THE GIDEON
CASE WAS DECIDED, BUT THE IMPACT OF THAT DECISION WAS FULLY
RETROACTIVE.  PICKELSIMER V. WAINWRIGHT, 375 U.S. 2. 

/5/  IT IS WORTH POINTING OUT, HOWEVER, THAT TO MAKE THE CONTRARY
ASSUMPTION, I.E., THAT THE PROSECUTIONS WOULD HAVE TURNED OUT EXACTLY
THE SAME EVEN IF THE RESPONDENT HAD HAD THE ASSISTANCE OF COUNSEL,
WOULD BE TO REJECT THE REASONING UPON WHICH THE GIDEON DECISION WAS
BASED: 

"(REASON AND REFLECTION REQUIRE US TO RECOGNIZE THAT IN OUR
ADVERSARY SYSTEM OF CRIMINAL JUSTICE, ANY PERSON HALED INTO COURT, WHO
IS TOO POOR TO HIRE A LAWYER, CANNOT BE ASSURED A FAIR TRIAL UNLESS
COUNSEL IS PROVIDED FOR HIM.  . . . THAT GOVERNMENT HIRES LAWYERS TO
PROSECUTE AND DEFENDANTS WHO HAVE THE MONEY HIRE LAWYERS TO DEFEND ARE
THE STRONGEST INDICATIONS OF THE WIDESPREAD BELIEF THAT LAWYERS IN
CRIMINAL COURTS ARE NECESSITIES, NOT LUXURIES."  372 U.S.,AT 344. 

/6/  THE CONSTITUTIONAL VALIDITY OF THE RESPONDENT'S THIRD
CONVICTION-- IN FLORIDA IN 1950-- HAS NOT BEEN DETERMINED.  THE
GOVERNMENT STATES IN ITS BRIEF THAT IT HAS BEEN INFORMED BY THE CLERK
OF THE CRIMINAL COURT OF RECORDS OF DADE COUNTY, FLORIDA, THAT THE
RESPONDENT HAD COUNSEL AT THAT TRIAL.  THE RESPONDENT'S BRIEF STATES
THAT THE RESPONDENT HAS ADVISED HIS PRESENT COUNSEL THAT AT THE 1950
FLORIDA PROCEEDING HE SPECIFICALLY ASKED THE JUDGE TO APPOINT COUNSEL
FOR HIM BECAUSE OF HIS INDIGENCE AND THAT THE REQUEST WAS DENIED. 

/7/  SEE N. 1, SUPRA. 

/8/  AS NOTED ABOVE, AT 445, AND EMPHASIZED IN THE DISSENTING
OPINION, THE TRIAL JUDGE, IN RULING UPON THE RESPONDENT'S PRESENT SEC.
2255 MOTION, HELD THAT THE WRONGFUL USE OF THE INVALID PREVIOUS
CONVICTIONS TO IMPEACH THE RESPONDENT'S TESTIMONY AT THE 1953 TRIAL WAS
HARMLESS ERROR, IN VIEW OF THE OVERWHELMING EVIDENCE THAT HE WAS GUILTY
OF THE BANK ROBBERY.  BUT THE RESPONDENT'S GUILT OF THAT OFFENSE HARDLY
"TRANSLATES" INTO AN "INESCAPABLE" ASSUMPTION THAT THE TRIAL JUDGE
WOULD HAVE IMPOSED A MAXIMUM 25-YEAR PRISON SENTENCE IF HE HAD KNOWN
THAT THE RESPONDENT HAD ALREADY BEEN UNCONSTITUTIONALLY IMPRISONED FOR
MORE THAN 10 YEARS.  IT WOULD BE EQUALLY CALLOUS TO ASSUME, NOW THAT
THE CONSTITUTIONAL INVALIDITY OF THE RESPONDENT'S PREVIOUS CONVICTIONS
IS CLEAR, THAT THE TRIAL JUDGE WILL UPON RECONSIDERATION "UNDOUBTEDLY"
IMPOSE THE SAME SENTENCE HE IMPOSED IN 1953. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE JOINS,
DISSENTING. 

THE COURT'S OPINION, OF COURSE, IS A FINE AND ACCEPTABLE EXPOSITION
OF ABSTRACT LAW.  IF I FELT THAT IT FIT TUCKER'S CASE, I WOULD JOIN IT.
THE COURT, HOWEVER, FAILS TO MENTION AND TO GIVE EFFECT TO CERTAIN
FACTS THAT, FOR ME, ARE CONTROLLING: 

1.  AT HIS ARMED BANK ROBBERY TRIAL IN MAY 1953 TUCKER WAS NO
JUVENILE.  HE WAS 32 YEARS OF AGE AND WAS REPRESENTED BY COUNSEL.  A
READING OF HIS TRIAL TESTIMONY DISCLOSES THAT HE WAS VERY KNOWLEDGEABLE
INDEED.  TUCKER TESTIFIED ON CROSS-EXAMINATION AT THAT TRIAL NOT ONLY
AS TO THE FACT OF THREE PRIOR STATE FELONY CONVICTIONS, BUT, AS WELL,
AS TO HE ENGAGING IN THE PROSCRIBED CONDUCT UNDERLYING TWO OF THOSE
CONVICTIONS.  HE STATED FLATLY (A) THAT IN 1938 HE BROKE INTO A GARAGE
AND TOOK A MAN'S AUTOMOBILE, AND (B) THAT IN 1946 HE BROKE INTO A
JEWELRY STORE AT NIGHT.  /1/  HE ALSO ACKNOWLEDGED THAT, WHILE WAITING
FOR TRANSPORTATION TO PRISON IN FLORIDA AFTER THE THIRD CONVICTION, HE
ESCAPED AND WENT TO CALIFORNIA USING AN ASSUMED NAME.  /2/  THUS,
WHOLLY APART FROM FORMAL CONVICTIONS, TUCKER CONCEDED CRIMINAL CONDUCT
ON HIS PART ON THREE SEPARATE PRIOR OCCASIONS.     2.  THE JUDGE WHO
PRESIDED AT TUCKER'S PRE-GIDEON TRIAL FOR ARMED BANK ROBBERY IN 1953
WAS THE HONORABLE GEORGE B. HARRIS OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA.  AFTER TUCKER'S CONVICTION BY
A JURY JUDGE HARRIS IMPOSED THE 25-YEAR MAXIMUM SENTENCE PRESCRIBED BY
18 U.S.C. 2113(A) AND 2113(D).  DESPITE THE INTERIM PASSAGE OF 16
YEARS, TUCKER'S PRESENT PETITION, FILED PURSUANT TO 28 U.S.C. 2255,
ALSO CAME BEFORE THE VERY SAME JUDGE HARRIS, THEN CHIEF JUDGE OF THE
NORTHERN DISTRICT.  THE JUDGE DENIED RELIEF ON THE GROUND THAT THE
ERROR IN THE USE, FOR IMPEACHMENT PURPOSES, OF TWO CONSTITUTIONALLY
INVALID PRIOR CONVICTIONS WAS HARMLESS BEYOND A REASONABLE DOUBT (A)
BECAUSE THE ISSUE OF GUILT OR INNOCENCE WAS NOT AT ALL CLOSE, (B)
BECAUSE TUCKER'S TESTIMONY "HAD BEEN SUCCESSFULLY IMPEACHED BY PRIOR
INCONSISTENT STATEMENTS MADE TO THE FEDERAL BUREAU OF INVESTIGATION
AGENTS, AND BY REBUTTAL TESTIMONY WHICH DEMONSTRATED THAT PORTIONS OF
(HIS) TESTIMONY (WERE) IMPROBABLE AND UNTRUE," AND (C) BECAUSE HIS
"TESTIMONY WAS SUCCESSFULLY IMPEACHED, AND IN FACT, DEMOLISHED BY
ADDITIONAL ITEMS."  299 F.SUPP.  1376, 1378 (ND CAL. 1969).  AS TO ALL
THIS, ON THE ISSUE OF GUILT, THE COURT OF APPEALS AGREED, 431 F.2D
1292, 1293 (CA9 1970), AND THIS COURT TODAY DOES NOT RULE OTHERWISE. 

CHIEF JUSTICE HARRIS' SEC. 2255 RULING TRANSLATES FOR ME INTO
SOMETHING COMPLETELY INESCAPABLE, NAMELY, THAT IN 1953, WHOLLY APART
FROM THE 1938 AND 1946 CONVICTIONS, HE WOULD HAVE IMPOSED THE 25-YEAR
MAXIMUM SENTENCE ANYWAY.  SURELY JUDGE HARRIS, OF ALL PEOPLE, IS THE
BEST SOURCE OF KNOWLEDGE AS TO THE EFFECT, IF ANY, OF THOSE TWO
CONVICTIONS IN HIS DETERMINATION OF THE SENTENCE TO BE IMPOSED.  YET
THE COURT SPECULATES THAT, DESPITE HIS IDENTITY AND HIS OBVIOUS
DISCLAIMER, JUDGE HARRIS MIGHT HAVE BEEN INFLUENCED IN HIS SENTENCING
BY THE FACT OF THE TWO PRIOR CONVICTIONS, RATHER THAN BY THE THREE
CRIMINAL ACTS THAT TUCKER HIMSELF ACKNOWLEDGED. 

ON REMAND THE CASE PRESUMABLY WILL GO ONCE AGAIN TO JUDGE HARRIS,
AND UNDOUBTEDLY THE SAME SENTENCE ONCE AGAIN WILL BE IMPOSED.  PERHAPS
THIS IS ALL WORTHWHILE AND, IF SO, I MUST BE CONTENT WITH THE COURT'S
DISPOSITION OF THE CASE ON GENERAL PRINCIPLES.  I ENTERTAIN MORE THAN A
MILD SUSPICION, HOWEVER, THAT THIS IS AN EXERCISE IN FUTILITY, THAT THE
COURT IS MERELY MARCHING UP THE HILL ONLY TO MARCH RIGHT DOWN AGAIN,
AND THAT IT IS TIME WE BECOME JUST A LITTLE REALISTIC IN THE FACE OF A
RECORD SUCH AS THIS ONE. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS INSOFAR AS IT
REMANDS THE CASE TO THE DISTRICT COURT FOR RESENTENCING. 

/1/  "Q. . . . YOU WERE CONVICTED IN FLORIDA, WERE NOT NOT? 

"A.  YES, I WAS. 

"Q.  FOR WHAT? 

"A.  AUTOMOBILE THEFT, BREAKING AND ENTERING. 

"Q.  WHAT DO YOU MEAN 'AUTOMOBILE THEFT, BREAKING AND ENTERING'? 

"A.  IT BOILS DOWN TO THIS, I WAS 17 YEARS OLD, BROKE INTO A MAN'S
GARAGE, TOOK HIS AUTOMOBILE, WENT JOY RIDING IT IT, RECEIVED A TEN YEAR
SENTENCE FOR IT. 

"Q.  AT THE AGE OF 17 YOU RECEIVED A TEN YEAR SENTENCE? 

"A.  YES. 

"Q.  WHEN WAS THAT? 

"A.  1938. 

"Q.  YOU BROKE INTO A PLACE AND STOLE A CAR? 

"A.  YES. 

"Q.  WHAT KIND OF CAR DID YOU STEAL? 

"A.  '36 FORD. 

"Q.  TELL US ABOUT YOUR OTHER CONVICTIONS. 

"A.  1946 I BROKE INTO A JEWELRY STORE. 

        .          .          .  . 

"Q.  WHERE? 

"A.  NEW ORLEANS. 

"Q.  NIGHT OR DAY? 

"A.  NIGHT."  TRIAL TRANSCRIPT 161-162. 

/2/  "Q.  WHY DID YOU USE THE NAME OF RICK BELLEW, IF YOU DID? 

"A.  BECAUSE I WAS A FUGITIVE FROM FLORIDA. 

"Q.  YOU WERE A WHAT? 

"A.  A FUGITIVE. 

"Q.  A FUGITIVE FROM WHAT? 

"A.  I HAD BEEN SENTENCED TO A TERM IN FLORIDA FOR THE THIRD
CONVICTION THAT YOU JUST BROUGHT UP, AND WHILE WAITING TRANSPORTATION
TO PRISON I WAS GIVEN A CHANCE TO-- NOBODY WAS WATCHING ME, AND I
WALKED OFF DOWN THERE AND CAME OUT TO CALIFORNIA. 

"Q.  WHERE DID YOU WALK AWAY FROM? 

"A.  I WAS HAVING MY APPENDIX REMOVED IN THE HOSPITAL.  . . . "
TRIAL TRANSCRIPT 166. 

" . . . (HE FOUND ME GUILTY AND SUBSEQUENTLY I ESCAPED AND CAME OUT
HERE.  . . . "  SENTENCING TRANSCRIPT 230. 

ALLAN A. TUTTLE ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, RICHARD B. STONE, BEATRICE ROSENBERG, AND MERVYN HAMBURG. 

WILLIAM A. REPPY, JR., BY APPOINTMENT OF THE COURT, POST.  P. 935,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS WILLIAM A.
NORRIS, BY APPOINTMENT OF THE COURT, 403, U.S. 930. 
..END :

















SEC V. MEDICAL COMMITTEE FOR HUMAN RIGHTS, 404 U.S. 403 


       SECURITIES AND EXCHANGE COMMISSION V. MEDICAL COMMITTEE FOR

           HUMAN RIGHTS

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 70-61.  ARGUED NOVEMBER 10, 1971-- DECIDED JANUARY 10,

           1972 


THE COURT OF APPEALS, OVERRULING THE CONTENTIONS OF THE SECURITIES
AND EXCHANGE COMMISSION (SEC), HELD THAT IT HAD JURISDICTION TO REVIEW
THE SEC'S "EXTREMELY DUBIOUS" DETERMINATION NOT TO OPPOSE THE DOW
CHEMICAL CO.'S REFUSAL OF RESPONDENT SHAREHOLDER'S REQUEST TO INCLUDE
ITS PROPOSAL FOR A CORPORATE CHARTER AMENDMENT IN DOW'S PROXY
STATEMENT.  THEREAFTER DOW ACQUIESCED IN THE REQUEST, AND AT ITS ANNUAL
MEETING LESS THAN 3% OF THE VOTING STOCKHOLDERS SUPPORTED THE
RESPONDENT'S PROPOSAL, AS A RESULT OF WHICH THE COMPANY UNDER AN SEC
RULE MAY EXCLUDE THE PROPOSAL FROM ITS PROXY MATERIAL FOR A THREE-YEAR
PERIOD.  HELD:  SINCE IT IS EXTREMELY DOUBTFUL THAT AT THE END OF THAT
PERIOD RESPONDENT WILL RESUBMIT THE PROPOSAL AND DOW WILL REFUSE IT,
THE CASE IS NOW MOOT.  PP. 405-407. 

139 U.S.APP.D.C. 226, 432 F.2D 659, VACATED AND REMANDED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, POST, P. 407.  POWELL AND REHNQUIST,
JJ., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE MEDICAL COMMITTEE FOR HUMAN RIGHTS ACQUIRED BY GIFT FIVE SHARES
OF STOCK IN DOW CHEMICAL CO.  IN MARCH 1968, THE COMMITTEE'S NATIONAL
CHAIRMAN WROTE A LETTER TO THE COMPANY EXPRESSING CONCERN OVER ITS
POLICY WITH RESPECT TO THE PRODUCTION AND SALE OF NAPALM.  THE LETTER
ALSO REQUESTED THAT THERE BE INCLUDED IN THE COMPANY'S PROXY STATEMENT
FOR 1968 A PROPOSAL TO AMEND DOW'S CERTIFICATE OF INCORPORATION TO
PROHIBIT THE SALE OF NAPALM UNLESS THE PURCHASER GIVES REASONABLE
ASSURANCE THAT THE NAPALM WILL NOT BE USED AGAINST HUMAN BEINGS.  DOW
REPLIED THAT THE PROPOSAL WAS TOO LATE FOR INCLUSION IN THE 1968 PROXY
STATEMENT AND FOR DISCUSSION AT THAT YEAR'S ANNUAL MEETING, BUT THAT IT
WOULD BE RECONSIDERED THE FOLLOWING YEAR. 

IN AN EXCHANGE OF LETTERS WITH DOW IN 1969, THE COMMITTEE INDICATED
ITS BELIEF THAT IT HAD A RIGHT UNDER RULE 14A-8 OF THE SECURITIES AND
EXCHANGE COMMISSION, 17 CFR 240.14A-8 (1970) (PROMULGATED PURSUANT TO
SEC. 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 895, AS
AMENDED, 15 U.S.C. 78NA)), TO HAVE ITS PROPOSAL INCLUDED IN THE
COMPANY'S PROXY STATEMENT FOR CONSIDERATION BY ALL SHAREHOLDERS.  ON
FEBRUARY 7, 1969, DOW RESPONDED THAT IT INTENDED TO OMIT THE PROPOSAL
(SOMEWHAT MODIFIED) FROM THE 1969 STATEMENT UNDER THE AUTHORITY OF
SUBSECTIONS OF THE SEC RULE RELIED ON BY THE COMMITTEE THAT PERMITTED
OMISSION OF SHAREHOLDER PROPOSALS UNDER TWO SETS OF CIRCUMSTANCES: 

     SEC. 240.14A-8(C)(2)-- "IF IT CLEARLY APPEARS THAT THE
PROPOSAL

  IS SUBMITTED BY THE SECURITY HOLDER PRIMARILY FOR THE PURPOSE OF

ENFORCING A PERSONAL CLAIM OR REDRESSING A PERSONAL GRIEVANCE

  AGAINST THE ISSUER OR ITS MANAGEMENT, OR PRIMARILY FOR THE

  PURPOSE OF PROMOTING GENERAL ECONOMIC, POLITICAL, RACIAL,

  RELIGIOUS, SOCIAL OR SIMILAR CAUSES"; OR 

SEC. 240.14A-8(C)(5)-- "IF THE PROPOSAL CONSISTS OF A

RECOMMENDATION OR REQUEST THAT THE MANAGEMENT TAKE ACTION WITH

  RESPECT TO A MATTER RELATING TO THE CONDUCT OF THE ORDINARY

  BUSINESS OPERATIONS OF THE ISSUER." 

THE COMMITTEE REQUESTED THAT DOW'S DECISION BE REVIEWED BY THE STAFF
OF THE SEC.  ON FEBRUARY 18, 1969, THE CHIEF COUNSEL FOR THE DIVISION
OF CORPORATION FINANCE WROTE BOTH DOW AND THE COMMITTEE TO INFORM THEM
THAT "THIS DIVISION WILL NOT RECOMMEND ANY ACTION TO THE COMMISSION IF
THIS PROPOSAL IS OMITTED FROM THE MANAGEMENT'S PROXY MATERIAL."  APP.
21.  THE SEC COMMISSIONERS GRANTED A REQUEST BY THE COMMITTEE THAT THEY
REVIEW THE DIVISION'S DECISION AND AFFIRMED IT.  APP. 43.  THE
COMMITTEE THEN SOUGHT AND OBTAINED REVIEW OF THE COMMISSION'S DECISION
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT. 

ON JULY 8, 1970, THE COURT OF APPEALS HELD THAT THE DECISION OF THE
SEC WAS REVIEWABLE UNDER SEC. 25(A) OF THE SECURITIES EXCHANGE ACT OF
1934, 15 U.S.C. 78YA); THAT WHILE REVIEW OF DOW'S DECISION WAS CLEARLY
AVAILABLE IN DISTRICT COURT, REVIEW OF THE SEC'S DECISION COULD ALSO BE
OBTAINED IN A COURT OF APPEALS; THAT THE VALIDITY OF THE COMMISSION'S
DETERMINATION WAS EXTREMELY DUBIOUS, ESPECIALLY IN LIGHT OF ITS FAILURE
TO STATE REASONS SUPPORTING ITS CONCLUSION; AND THAT THE CASE SHOULD BE
REMANDED TO THE COMMISSION FOR RECONSIDERATION AND A STATEMENT OF
REASONS.  139 U.S.APP.D.C. 226, 432 F.2D 659.  THE COMMISSION
PETITIONED FOR REVIEW HERE, AND WE GRANTED CERTIORARI ON MARCH 22,
1971.  401 U.S. 973. 

EVENTS HAVE TAKEN PLACE, SUBSEQUENT TO THE DECISION BY THE COURT
BELOW; AND SOME SUBSEQUENT TO OUR DECISION TO GRANT CERTIORARI, THAT
REQUIRE THAT WE DISMISS THIS CASE ON THE GROUND THAT IT HAS NOW BECOME
MOOT.  IN JANUARY 1971, THE MEDICAL COMMITTEE AGAIN SUBMITTED ITS
NAPALM RESOLUTION FOR INCLUSION IN DOW'S 1971 PROXY STATEMENT.  THIS
TIME DOW ACQUIESCED IN THE COMMITTEE'S REQUEST AND INCLUDED THE
PROPOSAL.  AT THE ANNUAL STOCKHOLDER'S MEETING IN MAY 1971, DOW'S
SHAREHOLDERS VOTED ON THE COMMITTEE'S PROPOSAL.  LESS THAN 3% OF ALL
VOTING SHAREHOLDERS SUPPORTED IT, AND PURSUANT TO RULE 14A-8(C)(I), 17
CFR 240.14A-8(C)(4)(I), DOW MAY EXCLUDE THE SAME OR SUBSTANTIALLY THE
SAME PROPOSAL FROM ITS PROXY MATERIALS FOR THE NEXT THREE YEARS.  WE
FIND THAT THIS SERIES OF EVENTS HAS MOOTED THE CONTROVERSY. 

RESPONDENT ARGUES THAT IT WILL CONTINUE TO URGE THE ADOPTION OF THE
PROPOSAL AND ITS INCLUSION IN PROXY STATEMENTS, AND THAT IT IS LIKELY
THAT DOW WILL REJECT INCLUSION IN THE FUTURE AS IT HAS IN THE PAST.  IT
IS TRUE THAT IN PERMITTING THE PROPOSAL TO BE INCLUDED IN THE 1971
PROXY STATEMENT DOW STATED THAT IT ADHERED TO ITS OPINION THAT THE
PROPOSAL MIGHT PROPERLY BE OMITTED AND THAT ITS INCLUSION WAS WITHOUT
PREJUDICE TO FUTURE EXCLUSION.  HOWEVER, THIS DOES NOT CREATE THE
CONTROVERSY THAT IS NECESSARY FOR US TO RETAIN JURISDICTION TO DECIDE
THE MERITS.  WHETHER OR NOT THE COMMITTEE WILL ACTUALLY RESUBMIT ITS
PROPOSAL OR A SIMILAR ONE IN 1974 IS PURELY A MATTER OF CONJECTURE AT
THIS POINT, AS IS WHETHER OR NOT DOW WILL ACCEPT IT.  IF DOW WERE
LIKELY TO REPEAT ITS ALLEGEDLY ILLEGAL CONDUCT, THE CASE WOULD NOT BE
MOOT.  SEE WALLING V. HELMERICH & PAYNE, 323 U.S. 37, 43 (1944); UNITED
STATES V. W. T. GRANT CO., 345 U.S. 629, 632-633 (1953).  HOWEVER, IN
LIGHT OF THE MEAGER SUPPORT THE PROPOSAL ATTRACTED, WE CAN ONLY
SPECULATE THAT DOW WILL CONTINUE TO INCLUDE THE PROPOSAL WHEN IT AGAIN
BECOMES ELIGIBLE FOR INCLUSION, RATHER THAN TO REPEAT THIS LITIGATION. 
THUS, WE FIND THAT "THE ALLEGEDLY WRONGFUL BEHAVIOR COULD NOT
REASONABLY BE EXPECTED TO RECUR."  UNITED STATES V. PHOSPHATE EXPORT
ASSN., 393 U.S. 199, 203 (1968).  THE CASE IS THEREFORE MOOT. 

"(IT IS WELL SETTLED THAT FEDERAL COURTS MAY ACT ONLY IN THE CONTEXT
OF A JUSTICIABLE CASE OR CONTROVERSY."  BENTON V. MARYLAND, 395 U.S.
784, 788 (1969).  "OUR LACK OF JURISDICTION TO REVIEW MOOT CASES
DERIVES FROM THE REQUIREMENT OF ARTICLE III OF THE CONSTITUTION UNDER
WHICH THE EXERCISE OF JUDICIAL POWER DEPENDS UPON THE EXISTENCE OF A
CASE OR CONTROVERSY."  LINER V. JAFCO, INC., 375 U.S. 301, 306N.3
(1964); CF. DOREMUS V. BOARD OF EDUCATION, 342 U.S. 429, 434 (1952). 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE
CASE IS REMANDED TO THAT COURT FOR DISMISSAL. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WITH ALL RESPECT, I MUST DISSENT FROM THE JUDGMENT OF THE COURT THAT
THIS CASE HAS BECOME MOOT BECAUSE THE DOW CHEMICAL CO. ACQUIESCED IN
THE DECISION OF THE COURT OF APPEALS BELOW.  THE UNDERLYING DISPUTE IN
THIS CASE IS ESSENTIALLY A PRIVATE ONE, BETWEEN DOW AND THE MEDICAL
COMMITTEE FOR HUMAN RIGHTS, THOUGH IT HAS LARGE PUBLIC OVERTONES.  IN
1969, DOW REFUSED TO SUBMIT TO ITS SHAREHOLDERS THE MEDICAL COMMITTEE'S
PROPOSAL THAT DOW AMEND ITS CORPORATE CHARTER TO FORBID THE MANUFACTURE
OF NAPALM.  DOW REFUSED AGAIN IN 1970.  ONLY IN 1971, AFTER THE
DECISION OF THE COURT OF APPEALS NOW UNDER REVIEW, DID DOW PERMIT SUCH
A PROPOSAL TO BE SUBMITTED FOR A VOTE.  IN DOING SO, HOWEVER, DOW
RESOLUTELY AFFIRMED ITS RIGHT TO REJECT THE PROPOSAL AT ANY FUTURE
TIME. 

THIS GRATUITOUS CONDUCT DID NOT, IN MY VIEW, MOOT THE CONTROVERSY. 
"MERE VOLUNTARY CESSATION OF ALLEGEDLY ILLEGAL CONDUCT DOES NOT MOOT A
CASE."  UNITED STATES V. PHOSPHATE EXPORT ASSN., 393 U.S. 199, 203.  IF
IT COULD, THEN A DEFENDANT WOULD ALWAYS BE "FREE TO RETURN TO HIS OLD
WAYS."  UNITED STATES V. W. T. GRANT CO., 345 U.S. 629, 632.  /1/ 

BUT IT IS SAID THAT BECAUSE OF THE POOR SHOWING MADE BY THE PROPOSAL
WHEN FINALLY SUBMITTED, DOW COULD REFUSE TO RESUBMIT IT FOR THREE YEARS
UNDER SEC PROXY RULES NOT AT ISSUE IN THIS CASE.  ANTE, AT 406.  THE
COURT SUGGESTS THAT IT IS "PURELY A MATTER OF CONJECTURE" THAT THE
PROPOSAL WILL AGAIN BE SUBMITTED AT THE EXPIRATION OF THIS PERIOD, AND
THAT DOW WILL ATTEMPT AGAIN TO REJECT IT.  THE COURT SEEMS TO THINK
THAT DOW'S BEST STRATEGY, GIVEN THE PROPOSAL'S POOR SHOWING, IS TO LET
IT GO TO A VOTE, RATHER THAN UNDERTAKE PROTRACTED LITIGATION.  IBID. 

THIS ASSUMPTION, HOWEVER, IS NOT ONLY BASELESS, IT IS IRRELEVANT. 
IN GRANT, SUPRA, AN ANTITRUST VIOLATION WAS CHARGED BECAUSE OF AN
INTERLOCKING DIRECTORATE.  IN RESPONSE TO THE SUITS, THE INTERLOCKING
DIRECTORS RESIGNED, AND DEFENDANT COMPANIES REPRESENTED TO THE COURT
THEIR INTENTION NOT TO REVIVE THE INTERLOCK.  WE DISPOSED OF THIS
ARGUMENT IN SUMMARY FASHION.  "SUCH A PROFESSION DOES NOT SUFFICE TO
MAKE A CASE MOOT."  ID., AT 633.  HERE, DOW HAS NOT EVEN MADE THE
MINIMAL REPRESENTATION WE REJECTED IN GRANT, NOR IS IT LIKELY TO DO
SO. 

THIS IS NOT A CONTROVERSY THAT COULD NOT ARISE AGAIN FOR DECADES,
GOLDEN V. ZWICKLER, 394 U.S. 103, OR A CONTROVERSY WHOSE DECISION COULD
HAVE NO POSSIBLE FUTURE EFFECT ON THE PARTIES, ATHERTON MILLS V.
JOHNSTON, 259 U.S. 13.  DOW HAS FOR THE PAST FOUR YEARS FOUGHT TOOTH
AND NAIL ITS OBLIGATION TO INCLUDE THIS SHAREHOLDER PROPOSAL.  WHILE
"(A) CASE MIGHT BECOME MOOT IF SUBSEQUENT EVENTS MADE IT ABSOLUTELY
CLEAR THAT THE ALLEGEDLY WRONGFUL BEHAVIOR COULD NOT REASONABLY BE
EXPECTED TO RECUR," PHOSPHATE EXPORT ASSN., SUPRA, AT 203, THAT IS
HARDLY THE SITUATION HERE. 

WHILE THIS LITIGATION IS NOT FORMALLY BETWEEN DOW AND THE MEDICAL
COMMITTEE, IT DOES INVOLVE A WHOLE PANOPLY OF SUBSTANTIVE /2/  AND
PROCEDURAL /3/  RIGHTS IN CONNECTION WITH A CORPORATION'S OBLIGATION TO
INCLUDE SHAREHOLDER PROPOSALS IN PROXY MATERIALS.  THE MODERN SUPER
CORPORATIONS, OF WHICH DOW IS ONE, WIELD IMMENSE, VIRTUALLY UNCHECKED,
POWER.  SOME SAY /4/  THAT THEY ARE "PRIVATE GOVERNMENTS,"  WHOSE
DECISIONS AFFECT THE LIVES OF US ALL.  /5/  THE PHILOSOPHY OF OUR
TIMES, I THINK, REQUIRES THAT SUCH ENTERPRISES BE HELD TO A HIGHER
STANDARD THAN THAT OF THE "MORALS OF THE MARKETPLACE" WHICH EXALTS A
SINGLE-MINDED, MYOPIC DETERMINATION TO MAXIMIZE PROFITS AS THE
TRADITIONAL BE-ALL AND END-ALL OF CORPORATE CONCERN.  THE "PUBLIC
INTEREST IN HAVING THE LEGALITY OF THE PRACTICES SETTLED, MILITATES
AGAINST A MOOTNESS CONCLUSION."  GRANT, SUPRA, AT 632. 

THERE IS NO REASON TO ASSUME DOW'S ANTIPATHY TO THE INCLUSION OF
THIS SHAREHOLDER PROPOSAL WILL BE ANY LESS IN 1974 THAN IT IS TODAY. 
PERHAPS DOW WILL ADOPT THE ADVICE GIVEN TO IT BY THE COURT.  BUT IT IS
JUST AS LIKELY TO DECIDE ITS SUPERIOR FINANCIAL POSITION MAKES
CONTINUED LITIGATION THE PREFERABLE ALTERNATIVE, WHICH MAY NOW BE
CONDUCTED UNDER PROXY RULES MORE FAVORABLE TO CORPORATE MANAGEMENT /6/
THAN ARE THE PRESENT RULES. 

THIS CASE NOW JOINS A GROWING LIST OF MONUMENTS TO THE PRESENT
COURT'S ABDICATION OF ITS CONSTITUTIONAL RESPONSIBILITY TO DECIDE CASES
PROPERLY WITHIN ITS JURISDICTION.  SEE, E.G., PICARD V. CONNOR, ANTE,
P. 270, AT 278 (DOUGLAS, J., DISSENTING); NORTH CAROLINA V. RICE, ANTE,
P. 244, AT 248 (DOUGLAS, J., DISSENTING STATEMENT); MCCLANAHAN V.
MORAUER & HARTZELL, ANTE, P. 16, AT 17 (DOUGLAS, J., DISSENTING).  ONCE
AGAIN, I DISSENT. 

/1/  SEE ALSO WALLING V. HELMERICH & PAYNE, 323 U.S. 37, WHERE WE
HELD THAT A CASE INVOLVING THE LEGALITY OF "SPLIT-DAY CONTRACTS" UNDER
THE FAIR LABOR STANDARDS ACT WAS NOT RENDERED MOOT BY THE DEFENDANT
COMPANY'S ABANDONMENT OF THE CONTRACTS DURING THE LITIGATION.  "DESPITE
RESPONDENT'S VOLUNTARY CESSATION OF THE CHALLENGED CONDUCT, A
CONTROVERSY BETWEEN THE PARTIES OVER THE LEGALITY OF THE SPLIT-DAY PLAN
STILL REMAINS . . . RESPONDENT HAS CONSISTENTLY URGED THE VALIDITY OF
THE SPLIT-DAY PLAN AND WOULD PRESUMABLY BE FREE TO RESUME THE USE OF
THIS ILLEGAL PLAN WERE NOT SOME EFFECTIVE RESTRAINT MADE."  ID., AT
43. 

THE VITALITY OF THIS CONTROVERSY WAS RECOGNIZED BY THE SOLICITOR
GENERAL, HIMSELF, VIRTUALLY TO THE MOMENT OF ORAL ARGUMENT.  WHILE HE
HAS ABRUPTLY REVERSED HIS POSITION, THE FORCE OF HIS PRIOR ARGUMENT
REMAINS UNDIMINISHED.  CITING THE ABOVE QUOTATION FROM WALLING HE
SAID: 

"THE SAME REASONING (AS THAT OF THE WALLING COURT) APPLIES TO THE
DISPUTE BETWEEN RESPONDENT AND DOW OVER WHETHER THE LATTER IS REQUIRED
TO DISTRIBUTE TO ITS SHAREHOLDERS THE COMMITTEE'S PROPOSAL.  DOW
CONTINUES TO INSIST THAT IT IS NOT REQUIRED TO DISTRIBUTE THE PROPOSAL,
AND EVEN IF IT DOES SO THIS YEAR (1971) AND THE PROPOSAL IS DEFEATED,
DOW MAY REJECT IT IN FUTURE YEARS."  FIRST REPLY BRIEF FOR PETITIONER
5. 

/2/  SEE GENERALLY NOTE, 84 HARV.L.REV.  700 (1971). 

/3/  SEE GENERALLY NOTE, 84 HARV.L.REV.  835 (1971). 

/4/  SEE, E.G., MILLER, TOWARD THE "TECHNO-CORPORATE" STATE?-- AN
ESSAY IN AMERICAN CONSTITUTIONALISM, 14 VILL.L.REV.  1 (1968); J.
GALBRAITH, THE NEW INDUSTRIAL STATE (1967); A. BERLE, ECONOMIC POWER
AND THE FREE SOCIETY (1957). 

/5/  A. BERLE HAS SUGGESTED, FOR EXAMPLE, THAT "THE RECESSION OF
1956 WAS IN PART DUE TO THE FACT THAT THE THREE PRINCIPAL AUTOMOBILE
MANUFACTURERS, GENERAL MOTORS, FORD, AND CHRYSLER, SOLD 8 MILLION CARS
IN THE PREVIOUS YEAR.  THE NATIONAL CITY BANK ECONOMIC REVIEW ESTIMATED
THE 'NORMAL' MARKET FOR CARS AT THE TIME AT 6 MILLION.  THE FOLLOWING
YEAR THE MOTORCAR COMPANIES SOLD ONLY 4 MILLION CARS, AND, NATURALLY,
PURCHASED FAR LESS FROM THEIR SUPPLIERS OF RAW MATERIALS, GLASS, ET
CETERA.  THE EFFECT ON EMPLOYMENT WAS SEVERE."  THE THREE FACES OF
POWER 31 N. 2 (1967).     /6/  IN THIS REGARD, IT SHOULD BE NOTED THAT
THE SEC HAS RECENTLY PROPOSED AMENDMENTS TO ITS PROXY RULES WHICH MIGHT
STRENGTHEN DOW'S HAND.  THE NEW RULES WOULD PERMIT A COMPANY TO REFUSE
TO SUBMIT FOR A SHAREHOLDER VOTE ANY PROPOSAL WHICH, INTER ALIA, "(II)
CONSISTS OF A RECOMMENDATION, REQUEST OR MANDATE THAT ACTION BE TAKEN
WITH RESPECT TO ANY MATTER, INCLUDING A GENERAL ECONOMIC, POLITICAL,
RACIAL, RELIGIOUS, SOCIAL OR SIMILAR CAUSE, THAT IS NOT SIGNIFICANTLY
RELATED TO THE BUSINESS OF THE ISSUER OR IS NOT WITHIN THE CONTROL OF
THE ISSUER."  PROPOSED AMENDMENT TO RULE 14A-8(C)(2), SECURITIES
EXCHANGE ACT RELEASE NO. 9432, DEC. 22, 1971.     THERE IS SUBSTANTIAL
SENTIMENT, HOWEVER, FOR A MORE LIBERAL APPROACH TO SHAREHOLDER PROXY
PROPOSALS THAN IS EVIDENCED BY THE CURRENT, MUCH LESS THE PROPOSED,
RULES.  SENATOR MUSKIE, FOR EXAMPLE, INTRODUCED A BILL IN THE LAST
CONGRESS, ENTITLED THE "CORPORATE PARTICIPATION ACT,"  WHICH WOULD
HAVE, INTER ALIA, BARRED EXCLUSION OF A SHAREHOLDER PROPOSAL "ON THE
GROUND THAT SUCH PROPOSAL MAY INVOLVE ECONOMIC, POLITICAL, RACIAL,
RELIGIOUS, OR SIMILAR ISSUES, UNLESS THE MATTER OR ACTION PROPOSED IS
NOT WITHIN THE CONTROL OF THE ISSUER."  S. 4003, SEC. 2, 91ST CONG., 2D
SESS.  FOR THE VIEW THAT A CORPORATION SHOULD BE REQUIRED TO INCLUDE
ANY SHAREHOLDER PROPOSAL WHICH IS A "PROPER SUBJECT" FOR SHAREHOLDER
ACTION UNDER APPLICABLE STATE LAW, SEE CHISUM, NAPALM, PROXY PROPOSALS
AND THE SEC, 12 ARIZ.L.REV.  463 (1970).  SEE ALSO NOTE, 84
HARV.L.REV.  700 (1971). 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR PETITIONER.  WITH
HIM ON THE BRIEFS WERE DANIEL M. FRIEDMAN, WILLIAM TERRY BRAY, PHILIP
A. LOOMIS, JR., DAVID FERBER, AND RICHARD E. NATHAN. 

ROBERTS B. OWEN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS MICHAEL BOUDIN. 

ROGER S. FOSTER AND CHARLES R. HALPERN FILED A BRIEF FOR THE PROJECT
ON CORPORATE RESPONSIBILITY AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :








DIFFENDERFER V. CENTRAL BAPTIST CHURCH, 404 U.S. 412 


       DIFFENDERFER ET AL. V. CENTRAL BAPTIST CHURCH OF MIAMI,

           FLORIDA, INC., ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF FLORIDA

        NO. 70-47.  ARGUED DECEMBER 6, 1971-- DECIDED JANUARY 10,

           1972 


APPELLANTS BROUGHT SUIT FOR DECLARATORY AND INJUNCTIVE RELIEF
CHALLENGING UNDER THE RELIGION CLAUSES OF THE FIRST AMENDMENT, A
FLORIDA STATUTE TO THE EXTENT THAT IT AUTHORIZED A TAX EXEMPTION FOR A
CHURCH PARKING LOT USED, INTER ALIA, FOR COMMERCIAL PURPOSES.  HELD:
THE SUBSEQUENT REPEAL OF THE CHALLENGED STATUTE AND ENACTMENT OF NEW
LEGISLATION MAKE THE RELIEF SOUGHT INAPPROPRIATE.  THE DISTRICT COURT'S
JUDGMENT UPHOLDING THE STATUTE IS VACATED AND THE CASE IS REMANDED WITH
LEAVE TO APPELLANTS TO AMEND THEIR PLEADINGS IF THEY DESIRE TO ATTACK
THE NEW STATUTE OR SHOW THAT THE OLD STATUTE RETAINS SOME FORCE. 

316 F.SUPP.  1116, VACATED AND REMANDED. 

PER CURIAM. 

THIS IS AN ACTION FOR A DECLARATORY JUDGMENT THAT FLORIDA STAT.
192.06(4) (1967) VIOLATES THE FIRST AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES INSOFAR AS IT AUTHORIZES A TAX EXEMPTION FOR CHURCH
PROPERTY USED, INTER ALIA, AS A COMMERCIAL PARKING LOT, AND FOR AN
INJUNCTION REQUIRING APPROPRIATE STATE AND LOCAL OFFICIALS TO ASSESS
AND COLLECT TAXES AGAINST SUCH PROPERTY.  IT IS BROUGHT BY CITIZENS AND
TAXPAYERS OF DADE COUNTY, FLORIDA, WHERE THE PROPERTY IN QUESTION IS
LOCATED.  THE CRUX OF THEIR COMPLAINT IS THAT STATE AID IN THE FORM OF
A TAX EXEMPTION FOR CHURCH PROPERTY USED PRIMARILY FOR COMMERCIAL
PURPOSES AMOUNTS NOT ONLY TO AN ESTABLISHMENT OF THE ONE RELIGION
AIDED, BUT ALSO TO AN INHIBITION ON THE FREE EXERCISE OF OTHER
RELIGIONS.  A THREE-JUDGE DISTRICT COURT, CONVENED PURSUANT TO 28
U.S.C. 2281, 2284, UPHELD THE VALIDITY OF THE STATUTE AS APPLIED TO THE
PROPERTY INVOLVED HEREIN, 316 F.SUPP.  1116 (1970), AND PLAINTIFFS
APPEALED TO THIS COURT.  28 U.S.C. 1253.  WE NOTED PROBABLE
JURISDICTION ON MARCH 1, 1971.  401 U.S. 934. 

THE CENTRAL BAPTIST CHURCH OF MIAMI, FLORIDA, INC., IS THE OWNER OF
NEARLY A FULL SQUARE BLOCK OF LAND IN DOWNTOWN MIAMI WHICH IS OCCUPIED
BY CHURCH BUILDINGS AND AN OFF STREET PARKING LOT.  THE PARKING
FACILITIES ARE UTILIZED BY NUMEROUS PERSONS PURSUING A VARIETY OF
CHURCH ACTIVITIES.  THESE FACILITIES ARE ALSO USED AS A COMMERCIAL
PARKING LOT EVERY DAY EXCEPT SUNDAY.  AT THE TIME THIS SUIT WAS
INSTITUTED AND DECIDED IN THE DISTRICT COURT, FLA. STAT. SEC. 192.06(4)
PROVIDED FOR EXEMPTION FROM TAXATION OF: 

     "ALL HOUSES OF PUBLIC WORSHIP AND LOTS ON WHICH THEY ARE

  SITUATED, AND ALL PEWS OR STEPS AND FURNITURE THEREIN, EVERY

  PARSONAGE AND ALL BURYING GROUNDS NOT OWNED OR HELD BY

  INDIVIDUALS OR CORPORATIONS FOR SPECULATIVE PURPOSES, TOMBS AND

  RIGHT OF BURIAL . . . " 

PRIOR TO THE DECISION OF THE DISTRICT COURT, THE FLORIDA SUPREME
COURT HAD HELD, IN A CASE INVOLVING THE SAME PROPERTY AS IS INVOLVED
HERE, THAT CHURCH PARKING LOTS RETAIN THEIR FULL TAX EXEMPTION UNDER
STATE LAW EVEN THOUGH THEY MAY BE USED FOR COMMERCIAL AS WELL AS CHURCH
PURPOSES.  CENTRAL BAPTIST CHURCH V. DADE COUNTY, 216 SO.2D 4 (1968). 
THIS LED TO THE CONSTITUTIONAL CHALLENGE IN THE DISTRICT COURT. 

AT ITS 1971 REGULAR SESSION, THE FLORIDA LEGISLATURE REPEALED SEC.
196.191 (HE 1969 SUCCESSOR TO SEC. 192.06) AND ENACTED NEW LEGISLATION,
APPROVED JUNE 15, 1971, EFFECTIVE DECEMBER 31, 1971, WHICH PROVIDES, IN
RELEVANT PART, THAT CHURCH PROPERTY IS EXEMPT FROM TAXATION ONLY IF THE
PROPERTY IS USED PREDOMINANTLY FOR RELIGIOUS PURPOSES AND ONLY "TO THE
EXTENT OF THE RATIO THAT SUCH PREDOMINANT USE BEARS TO THE NON-EXEMPT
USE."  FLA. STAT. SEC. 196.192(2). 

WE MUST REVIEW THE JUDGMENT OF THE DISTRICT COURT IN LIGHT OF
FLORIDA LAW AS IT NOW STANDS, NOT AS IT STOOD WHEN THE JUDGMENT BELOW
WAS ENTERED.  HALL V. BEALS, 396 U.S. 45, 48 (1969); UNITED STATES V.
ALABAMA, 362 U.S. 602, 604 (1960); CF. THORPE V. HOUSING AUTHORITY, 393
U.S. 268, 281-282 (1969); HINES V. DAVIDOWITZ, 312 U.S. 52, 60 (1951). 
IT IS CLEAR THAT THE CHURCH PARKING LOT THAT WAS THE SUBJECT OF THE
TAXPAYERS' COMPLAINT IS NO LONGER FULLY EXEMPT FROM TAXATION.  IF, IN
FACT, IT CAN BE DEMONSTRATED THAT THE LOT IS PREDOMINANTLY USED FOR
NONRELIGIOUS PURPOSES, IT WILL RECEIVE NO EXEMPTION WHATEVER.  "THE
CASE HAS THEREFORE LOST ITS CHARACTER AS A PRESENT, LIVE CONTROVERSY OF
THE KIND THAT MUST EXIST IF WE ARE TO AVOID ADVISORY OPINIONS ON
ABSTRACT PROPOSITIONS OF LAW."  HALL V. BEALS, SUPRA, AT 48. 

THIS IS NOT A CASE THAT IS "CAPABLE OF REPETITION, YET EVADING
REVIEW," SOUTHERN PACIFIC TERMINAL CO. V. ICC, 219 U.S. 498, 515
(1911), NOR IS IT THE KIND OF CASE THAT MAY PRODUCE IRREPARABLE INJURY
IF NOT DECIDED IMMEDIATELY, SEE, E.G., MOORE V. OGILVIE, 394 U.S. 814
(1969); GRAY V. SANDERS, 372 U.S. 368 (1963).  THE ONLY RELIEF SOUGHT
IN THE COMPLAINT WAS A DECLARATORY JUDGMENT THAT THE NOW REPEALED FLA.
STAT. SEC. 192.06(4) IS UNCONSTITUTIONAL AS APPLIED TO A CHURCH PARKING
LOT USED FOR COMMERCIAL PURPOSES AND AN INJUNCTION AGAINST ITS
APPLICATION TO SAID LOT.  THIS RELIEF IS, OF COURSE, INAPPROPRIATE NOW
THAT THE STATUTE HAS BEEN REPEALED. 

BECAUSE IT IS POSSIBLE THAT APPELLANTS MAY WISH TO AMEND THEIR
COMPLAINT SO AS TO DEMONSTRATE THAT THE REPEALED STATUTE RETAINS SOME
CONTINUING FORCE OR TO ATTACK THE NEWLY ENACTED LEGISLATION, RATHER
THAN REMANDING THE CASE TO THE DISTRICT COURT FOR DISMISSAL AS IS OUR
USUAL PRACTICE WHEN A CASE HAS BECOME MOOT PENDING A DECISION BY THIS
COURT, UNITED STATES V. MUNSINGWEAR, INC., 340 U.S. 36, 39, AND N. 2
(1950), WE VACATE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE
CASE TO THE DISTRICT COURT WITH LEAVE TO THE APPELLANTS TO AMEND THEIR
PLEADINGS.  BRYAN V. AUSTIN, 354 U.S. 933 (1957). 

JUDGMENT WILL BE ENTERED ACCORDINGLY. 

MR. JUSTICE POWELL AND MR. JUSTICE REHNQUIST TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE EXTENT TO WHICH A STATE MAY CONSTITUTIONALLY AUTHORIZE A TAX
EXEMPTION FOR CHURCH-OWNED PROPERTY USED PRIMARILY FOR COMMERCIAL
PURPOSES IS A QUESTION OF SUBSTANTIAL NATIONAL IMPORTANCE, AND IS
SQUARELY PRESENTED BY APPELLANTS' CHALLENGE TO FLA. STAT. SEC.
192.06(4) IN THIS CASE.  THE COURT SAYS, HOWEVER, THAT THE CONTROVERSY
OVER THE EXEMPTION AWARDED TO APPELLEE CHURCH IS MOOT, APPELLANTS
HAVING ASKED ONLY FOR DECLARATORY RELIEF AS TO THE UNCONSTITUTIONALITY
OF SEC. 192.06(4), WHICH SECTION WAS REPLACED BY NEW LEGISLATION,
EFFECTIVE DECEMBER 31, 1971, THAT SUBSTANTIALLY NARROWED THE AUTHORIZED
EXEMPTION.  FLA. STAT. SEC. 196.192. 

I AM NOT AS EAGER AS IS THE COURT TO HOLD MOOT A CASE ON APPEAL
WHICH IS JUSTICIABLE IN EVERY RESPECT SAVE FOR AN INTERVENING CHANGE IN
THE UNDERLYING LAW.  IT DOES NOT NECESSARILY FOLLOW THAT THERE IS NO
LONGER A LIVE CONTROVERSY BETWEEN THESE PARTIES, EVEN IF WE ASSUME,
ARGUENDO, THAT THE NEW STATUTE SATISFIES ALL OF APPELLANTS'
CONSTITUTIONAL OBJECTIONS TO THE OLD ONE.  HERE, APPELLANTS ARGUE THAT
SHOULD THEIR APPEAL PREVAIL, THE CHURCH WILL BE LIABLE FOR THREE YEARS'
BACK PROPERTY TAXES, PURSUANT TO FLA. STAT. SEC. 193.23, NOW SEC.
193.092.  /1/  IF THIS IS SO, THE CONTROVERSY WOULD APPEAR VITAL
DESPITE THE REPEAL OF SEC. 192.06(4).  CF. POWELL V. MCCORMACK, 395
U.S. 486; BOND V. FLOYD, 385 U.S. 116.  SEE ALSO NOTE, 83 HARV.L.REV. 
1672 (1970). 

APPELLEES CONTEST THIS INTERPRETATION OF STATE TAX LAW, ARGUING FROM
STATE COURT DECISIONS THAT STATE OR LOCAL TAXING AUTHORITIES WOULD BE
ESTOPPED FROM ASSERTING APPELLEE CHURCH'S LIABILITY FOR BACK TAXES. 
/2/  NEITHER SIDE, HOWEVER, CAN POINT TO A DEFINITIVE INTERPRETATION OF
THE PRECISE POINT OF STATE LAW AT ISSUE. 

IN MY VIEW, THIS SITUATION LENDS ITSELF TO THE FLORIDA PROCEDURES BY
WHICH THIS COURT AND OTHER FEDERAL APPELLATE COURTS MAY CERTIFY
UNRESOLVED QUESTIONS OF FLORIDA LAW TO THE STATE SUPREME COURT FOR
DECISION.  /3/  IF A DECLARATION THAT SEC. 192.06(4) WAS
UNCONSTITUTIONAL WOULD RESULT IN TAX LIABILITY TO APPELLEE CHURCH, THEN
THIS CASE IS SURELY NOT MOOT.  WE HAVE THE OPPORTUNITY TO ASK THE
FLORIDA SUPREME COURT FOR A DEFINITIVE ANSWER TO THIS QUESTION.  I
WOULD TAKE ADVANTAGE OF IT. 

/1/  FLA. STAT. SEC. 193.902 READS, IN PERTINENT PART: 

"(1) WHEN IT SHALL APPEAR THAT AN AD VALOREM TAX MIGHT HAVE BEEN
LAWFULLY ASSESSED OR COLLECTED UPON ANY PROPERTY IN THE STATE, BUT THAT
SUCH TAX WAS NOT LAWFULLY ASSESSED OR LEVIED, AND HAS NOT BEEN
COLLECTED FOR ANY YEAR WITHIN A PERIOD OF THREE YEARS NEXT PRECEDING
THE YEAR IN WHICH IT IS ASCERTAINED THAT SUCH TAX HAS NOT BEEN
ASSESSED, OR LEVIED, OR COLLECTED, THEN THE OFFICERS AUTHORIZED SHALL
MAKE THE ASSESSMENT OF TAXES UPON SUCH PROPERTY IN ADDITION TO THE
ASSESSMENT OF SUCH PROPERTY FOR THE CURRENT YEAR . . . " 

/2/  SEE, E.G., CITY OF NAPLES V. CONBOY, 182 SO.2D 412 (FLA. 1965);
COPPOCK V. BLOUNT, 145 SO.2D 279 (FLA. APP. 1962).  APPELLANTS,
HOWEVER, CONSTRUE THESE CASES TO HOLD THAT BACK TAXATION MAY BE
ESTOPPED ON EQUITABLE PRINCIPLES ONLY WHEN THERE ARE "SPECIAL
CIRCUMSTANCES" INVOLVED.  APPELLANTS CONTEND THAT THE PRESENT SITUATION
INVOLVES NO SUCH "SPECIAL CIRCUMSTANCES" THAT WOULD JUSTIFY AN ESTOPPEL
UNDER THESE CASES. 

/3/  CERTIFICATION IS AUTHORIZED BY FLA. STAT. SEC. 25.031 (1969): 

"THE SUPREME COURT OF THIS STATE MAY, BY RULE OF COURT, PROVIDE
THAT, WHEN IT SHALL APPEAR TO THE SUPREME COURT OF THE UNITED STATES,
TO ANY CIRCUIT COURT OF APPEALS OF THE UNITED STATES, OR TO THE COURT
OF APPEALS OF THE DISTRICT OF COLUMBIA, THAT THERE ARE INVOLVED IN ANY
PROCEEDING BEFORE IT QUESTIONS OR PROPOSITIONS OF THE LAWS OF THIS
STATE, WHICH ARE DETERMINATIVE OF THE SAID CAUSE, AND THERE ARE NO
CLEAR CONTROLLING PRECEDENTS IN THE DECISIONS OF THE SUPREME COURT OF
THIS STATE, SUCH FEDERAL APPELLATE COURT MAY CERTIFY SUCH QUESTIONS OR
PROPOSITIONS OF THE LAWS OF THIS STATE TO THE SUPREME COURT OF THIS
STATE FOR INSTRUCTIONS CONCERNING SUCH QUESTIONS OR PROPOSITIONS OF
STATE LAW, WHICH CERTIFICATE THE SUPREME COURT OF THIS STATE, BY
WRITTEN OPINION, MAY ANSWER." 

THE IMPLEMENTING RULE IS FLA. APP. RULE 4.61.  WE HAVE USED THIS
STATUTE BEFORE, NOTING THAT IT DEMONSTRATES "RARE FORESIGHT" ON THE
PART OF THE FLORIDA LEGISLATURE.  CLAY V. SUN INS. OFFICE, 363 U.S.
207, 212. 

LEO PFEFFER ARGUED THE CAUSE FOR APPELLANT DIFFENDERFER.  WITH HIM
ON THE BRIEF WERE RICHARD YALE FEDER, IRMA ROBBINS FEDER, AND MELVIN L.
WULF.  HOWARD J. HOLLANDER ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLANT PAUL. 

CHARLES M. WHELAN ARGUED THE CAUSE FOR APPELLEE CENTRAL BAPTIST
CHURCH OF MIAMI.  WITH HIM ON THE BRIEF WERE HERBERT S. SAWYER, KARL B.
BLOCK, JR., AND WILLIAM R. CONSEDINE. 

FRANKLIN C. SALISBURY AND NOEL H. THOMPSON FILED A BRIEF FOR
PROTESTANTS AND OTHER AMERICANS UNITED FOR SEPARATION OF CHURCH AND
STATE AS AMICUS CURIAE URGING REVERSAL.  ROBERT L. SHEVIN, ATTORNEY
GENERAL OF FLORIDA, PRO SE, FILED A MEMORANDUM. 
..END :















SANTOBELLO V. NEW YORK, 404 U.S. 257 


       SANTOBELLO V. NEW YORK

        CERTIORARI TO APPELLATE DIVISION OF THE SUPREME COURT OF
NEW

           YORK, FIRST JUDICIAL DEPARTMENT

        NO. 70-98.  ARGUED NOVEMBER 15, 1971-- DECIDED DECEMBER 20,

           1971 


AFTER NEGOTIATIONS WITH THE PROSECUTOR, PETITIONER WITHDREW HIS
PREVIOUS NOT-GUILTY PLEA TO TWO FELONY COUNTS AND PLEADED GUILTY TO A
LESSER-INCLUDED OFFENSE, THE PROSECUTOR HAVING AGREED TO MAKE NO
RECOMMENDATION AS TO SENTENCE.  AT PETITIONER'S APPEARANCE FOR
SENTENCING MANY MONTHS LATER A NEW PROSECUTOR RECOMMENDED THE MAXIMUM
SENTENCE, WHICH THE JUDGE (WHO STATED THAT HE WAS UNINFLUENCED BY THAT
RECOMMENDATION) IMPOSED.  PETITIONER ATTEMPTED UNSUCCESSFULLY TO
WITHDRAW HIS GUILTY PLEA, AND HIS CONVICTION WAS AFFIRMED ON APPEAL. 
HELD:  THE INTERESTS OF JUSTICE AND PROPER RECOGNITION OF THE
PROSECUTION'S DUTIES IN RELATION TO PROMISES MADE IN CONNECTION WITH
"PLEA BARGAINING" REQUIRE THAT THE JUDGMENT BE VACATED AND THAT THE
CASE BE REMANDED TO THE STATE COURTS FOR FURTHER CONSIDERATION AS TO
WHETHER THE CIRCUMSTANCES REQUIRE ONLY THAT THERE BE SPECIFIC
PERFORMANCE OF THE AGREEMENT ON THE PLEA (IN WHICH CASE PETITIONER
SHOULD BE RESENTENCED BY A DIFFERENT JUDGE), OR PETITIONER SHOULD BE
AFFORDED THE RELIEF HE SEEKS OF WITHDRAWING HIS GUILTY PLEA.  P. 260
263. 

35 APP.DIV.2D 1084, 316 N.Y.S.2D 194, VACATED AND REMANDED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
WHITE, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED A CONCURRING
OPINION, POST, P. 263.  MARSHALL, J., FILED AN OPINION CONCURRING IN
PART AND DISSENTING IN PART, IN WHICH BRENNAN AND STEWART, JJ., JOINED,
POST, P. 267. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO DETERMINE WHETHER THE STATE'S
FAILURE TO KEEP A COMMITMENT CONCERNING THE SENTENCE RECOMMENDATION ON
A GUILTY PLEA REQUIRED A NEW TRIAL. 

THE FACTS ARE NOT IN DISPUTE.  THE STATE OF NEW YORK INDICTED
PETITIONER IN 1969 ON TWO FELONY COUNTS, PROMOTING GAMBLING IN THE
FIRST DEGREE, AND POSSESSION OF GAMBLING RECORDS IN THE FIRST DEGREE,
N.Y. PENAL LAW SECS. 225.10, 225.20.  PETITIONER FIRST ENTERED A PLEA
OF NOT GUILTY TO BOTH COUNTS.  AFTER NEGOTIATIONS, THE ASSISTANT
DISTRICT ATTORNEY IN CHARGE OF THE CASE AGREED TO PERMIT PETITIONER TO
PLEAD GUILTY TO A LESSER-INCLUDED OFFENSE, POSSESSION OF GAMBLING
RECORDS IN THE SECOND DEGREE, N.Y. PENAL LAW SEC. 225.15, CONVICTION OF
WHICH WOULD CARRY A MAXIMUM PRISON SENTENCE OF ONE YEAR.  THE
PROSECUTOR AGREED TO MAKE NO RECOMMENDATION AS TO THE SENTENCE. 

ON JUNE 16, 1969, PETITIONER ACCORDINGLY WITHDREW HIS PLEA OF NOT
GUILTY AND ENTERED A PLEA OF GUILTY TO THE LESSER CHARGE.  PETITIONER
REPRESENTED TO THE SENTENCING JUDGE THAT THE PLEA WAS VOLUNTARY AND
THAT THE FACTS OF THE CASE, AS DESCRIBED BY THE ASSISTANT DISTRICT
ATTORNEY, WERE TRUE.  THE COURT ACCEPTED THE PLEA AND SET A DATE FOR
SENTENCING.  A SERIES OF DELAYS FOLLOWED, OWING PRIMARILY TO THE
ABSENCE OF A PRE-SENTENCE REPORT, SO THAT BY SEPTEMBER 23, 1969,
PETITIONER HAD STILL NOT BEEN SENTENCED.  BY THAT DATE PETITIONER
ACQUIRED NEW DEFENSE COUNSEL. 

PETITIONER'S NEW COUNSEL MOVED IMMEDIATELY TO WITHDRAW THE GUILTY
PLEA.  IN AN ACCOMPANYING AFFIDAVIT, PETITIONER ALLEGED THAT HE DID NOT
KNOW AT THE TIME OF HIS PLEA THAT CRUCIAL EVIDENCE AGAINST HIM HAD BEEN
OBTAINED AS A RESULT OF AN ILLEGAL SEARCH.  THE ACCURACY OF THIS
AFFIDAVIT IS SUBJECT TO CHALLENGE SINCE PETITIONER HAD FILED AND
WITHDRAWN A MOTION TO SUPPRESS, BEFORE PLEADING GUILTY.  IN ADDITION TO
HIS MOTION TO WITHDRAW HIS GUILTY PLEA, PETITIONER RENEWED THE MOTION
TO SUPPRESS AND FILED A MOTION TO INSPECT THE GRAND JURY MINUTES. 

THESE THREE MOTIONS IN TURN CAUSED FURTHER DELAY UNTIL NOVEMBER 26,
1969, WHEN THE COURT DENIED ALL THREE AND SET JANUARY 9, 1970, AS THE
DATE FOR SENTENCING.  ON JANUARY 9 PETITIONER APPEARED BEFORE A
DIFFERENT JUDGE, THE JUDGE WHO HAD PRESIDED OVER THE CASE TO THIS
JUNCTURE HAVING RETIRED.  PETITIONER RENEWED HIS MOTIONS, AND THE COURT
AGAIN REJECTED THEM.  THE COURT THEN TURNED TO CONSIDERATION OF THE
SENTENCE. 

AT THIS APPEARANCE, ANOTHER PROSECUTOR HAD REPLACED THE PROSECUTOR
WHO HAD NEGOTIATED THE PLEA.  THE NEW PROSECUTOR RECOMMENDED THE
MAXIMUM ONE-YEAR SENTENCE.  IN SENTENCE.  IN MAKING THIS
RECOMMENDATION, HE CITED PETITIONER'S CRIMINAL RECORD AND ALLEGED LINKS
WITH ORGANIZED CRIME.  DEFENSE COUNSEL IMMEDIATELY OBJECTED ON THE
GROUND THAT THE STATE HAD PROMISED PETITIONER BEFORE THE PLEA WAS
ENTERED THAT THERE WOULD BE NO SENTENCE RECOMMENDATION BY THE
PROSECUTION.  HE SOUGHT TO ADJOURN THE SENTENCE HEARING IN ORDER TO
HAVE TIME TO PREPARE PROOF OF THE FIRST PROSECUTOR'S PROMISE.  THE
SECOND PROSECUTOR, APPARENTLY IGNORANT OF HIS COLLEAGUE'S COMMITMENT,
ARGUED THAT THERE WAS NOTHING IN THE RECORD TO SUPPORT PETITIONER'S
CLAIM OF A PROMISE, BUT THE STATE, IN SUBSEQUENT PROCEEDINGS, HAS NOT
CONTESTED THAT SUCH A PROMISE WAS MADE. 

THE SENTENCING JUDGE ENDED DISCUSSION, WITH THE FOLLOWING STATEMENT,
QUOTING EXTENSIVELY FROM THE PRE-SENTENCE REPORT: 

     "MR. ARONSTEIN (DEFENSE COUNSEL), I AM NOT AT ALL INFLUENCED
BY

  WHAT THE DISTRICT ATTORNEY SAYS, SO THAT THERE IS NO NEED TO

  ADJOURN THE SENTENCE, AND THERE IS NO NEED TO HAVE ANY

  TESTIMONY.  IT DOESN'T MAKE A PARTICLE OF DIFFERENCE WHAT THE

  DISTRICT ATTORNEY SAYS HE WILL DO, OR WHAT HE DOESN'T DO. 

"I HAVE HERE, MR. ARONSTEIN, A PROBATION REPORT.  I HAVE HERE A

  HISTORY OF A LONG, LONG SERIOUS CRIMINAL RECORD.  I HAVE HERE A

  PICTURE OF THE LIFE HISTORY OF THIS MAN . . . 

     "'HE IS UNAMENABLE TO SUPERVISION IN THE COMMUNITY.  HE IS A

  PROFESSIONAL CRIMINAL.'  THIS IS IN QUOTES.  'AND A RECIDIVIST. 

  INSTITUTIONALIZATION-- '; THAT MEANS, IN PLAIN LANGUAGE, JUST

  PUTTING HIM AWAY, 'IS THE ONLY MEANS OF HALTING HIS ANTI-SOCIAL

  ACTIVITIES,' AND PROTECTING YOU, YOUR FAMILY, ME, MY FAMILY,

  PROTECTING SOCIETY.  'INSTITUTIONALIZATION.'  PLAIN LANGUAGE, PUT

  HIM BEHIND BARS. 

     "UNDER THE PLEA, I CAN ONLY SEND HIM TO THE NEW YORK CITY

  CORRECTIONAL INSTITUTION FOR MEN FOR ONE YEAR, WHICH I AM HEREBY

  DOING." 

THE JUDGE THEN IMPOSED THE MAXIMUM SENTENCE OF ONE YEAR. 

PETITIONER SOUGHT AND OBTAINED A CERTIFICATE OF REASONABLE DOUBT AND
WAS ADMITTED TO BAIL PENDING AN APPEAL.  THE SUPREME COURT OF THE STATE
OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, UNANIMOUSLY AFFIRMED
PETITIONER'S CONVICTION, 35 APP.DIV.2D 1084, 316 N.Y.S.2D 194 (1970),
AND PETITIONER WAS DENIED LEAVE TO APPEAL TO THE NEW YORK COURT OF
APPEALS.  PETITIONER THEN SOUGHT CERTIORARI IN THIS COURT.  MR. JUSTICE
HARLAN GRANTED BAIL PENDING OUR DISPOSITION OF THE CASE. 

THIS RECORD REPRESENTS ANOTHER EXAMPLE OF AN UNFORTUNATE LAPSE IN
ORDERLY PROSECUTORIAL PROCEDURES, IN PART, NO DOUBT, BECAUSE OF THE
ENORMOUS INCREASE IN THE WORKLOAD OF THE OFTEN UNDERSTAFFED
PROSECUTOR'S OFFICES.  THE HEAVY WORKLOAD MAY WELL EXPLAIN THESE
EPISODES, BUT IT DOES NOT EXCUSE THEM.  THE DISPOSITION OF CRIMINAL
CHARGES BY AGREEMENT BETWEEN THE PROSECUTOR AND THE ACCUSED, SOMETIMES
LOOSELY CALLED "PLEA BARGAINING," IS AN ESSENTIAL COMPONENT OF THE
ADMINISTRATION OF JUSTICE.  PROPERLY ADMINISTERED, IT IS TO BE
ENCOURAGED.  IF EVERY CRIMINAL CHARGE WERE SUBJECTED TO A FULL-SCALE
TRIAL, THE STATES AND THE FEDERAL GOVERNMENT WOULD NEED TO MULTIPLY BY
MANY TIMES THE NUMBER OF JUDGES AND COURT FACILITIES. 

DISPOSITION OF CHARGES AFTER PLEA DISCUSSIONS IS NOT ONLY AN
ESSENTIAL PART OF THE PROCESS BUT A HIGHLY DESIRABLE PART FOR MANY
REASONS.  IT LEADS TO PROMPT AND LARGELY FINAL DISPOSITION OF MOST
CRIMINAL CASES; IT AVOIDS MUCH OF THE CORROSIVE IMPACT OF ENFORCED
IDLENESS DURING PRETRIAL CONFINEMENT FOR THOSE WHO ARE DENIED RELEASE
PENDING TRIAL; IT PROTECTS THE PUBLIC FROM THOSE ACCUSED PERSONS WHO
ARE PRONE TO CONTINUE CRIMINAL CONDUCT EVEN WHILE ON PRETRIAL RELEASE;
AND, BY SHORTENING THE TIME BETWEEN CHARGE AND DISPOSITION, IT ENHANCES
WHATEVER MAY BE THE REHABILITATIVE PROSPECTS OF THE GUILTY WHEN THEY
ARE ULTIMATELY IMPRISONED.  SEE BRADY V. UNITED STATES, 397 U.S. 742,
751-752 (1970). 

HOWEVER, ALL OF THESE CONSIDERATIONS PRESUPPOSE FAIRNESS IN SECURING
AGREEMENT BETWEEN AN ACCUSED AND A PROSECUTOR.  IT IS NOW CLEAR, FOR
EXAMPLE, THAT THE ACCUSED PLEADING GUILTY MUST BE COUNSELED, ABSENT A
WAIVER.  MOORE V. MICHIGAN, 355 U.S. 155 (1957).  FED. RULE CRIM. PROC.
11, GOVERNING PLEAS IN FEDERAL COURTS, NOW MAKES CLEAR THAT THE
SENTENCING JUDGE MUST DEVELOP, ON THE RECORD, THE FACTUAL BASIS FOR THE
PLEA, AS, FOR EXAMPLE, BY HAVING THE ACCUSED DESCRIBE THE CONDUCT THAT
GAVE RISE TO THE CHARGE.  /1/  THE PLEA MUST, OF COURSE, BE VOLUNTARY
AND KNOWING AND IF IT WAS INDUCED BY PROMISES, THE ESSENCE OF THOSE
PROMISES MUST IN SOME WAY BE MADE KNOWN.  THERE IS OF COURSE, NO
ABSOLUTE RIGHT TO HAVE A GUILTY PLEA ACCEPTED.  LYNCH V. OVERHOLSER,
369 U.S. 705, 719 (1962); FED. RULE CRIM. PROC. 11.  A COURT MAY REJECT
A PLEA IN EXERCISE OF SOUND JUDICIAL DISCRETION. 

THIS PHASE OF THE PROCESS OF CRIMINAL JUSTICE, AND THE ADJUDICATIVE
ELEMENT INHERENT IN ACCEPTING A PLEA OF GUILTY, MUST BE ATTENDED BY
SAFEGUARDS TO INSURE THE DEFENDANT WHAT IS REASONABLY DUE IN THE
CIRCUMSTANCES.  THOSE CIRCUMSTANCES WILL VARY, BUT A CONSTANT FACTOR IS
THAT WHEN A PLEA RESTS IN ANY SIGNIFICANT DEGREE ON A PROMISE OR
AGREEMENT OF THE PROSECUTOR, SO THAT IT CAN BE SAID TO BE PART OF THE
INDUCEMENT OR CONSIDERATION, SUCH PROMISE MUST BE FULFILLED. 

ON THIS RECORD, PETITIONER "BARGAINED" AND NEGOTIATED FOR A
PARTICULAR PLEA IN ORDER TO SECURE DISMISSAL OF MORE SERIOUS CHARGES,
BUT ALSO ON CONDITION THAT NO SENTENCE RECOMMENDATION WOULD BE MADE BY
THE PROSECUTOR.  IT IS NOW CONCEDED THAT THE PROMISE TO ABSTAIN FROM A
RECOMMENDATION WAS MADE, AND AT THIS STAGE THE PROSECUTION IS NOT IN A
GOOD POSITION TO ARGUE THAT ITS INADVERTENT BREACH OF AGREEMENT IS
IMMATERIAL.  THE STAFF LAWYERS IN A PROSECUTOR'S OFFICE HAVE THE BURDEN
OF "LETTING THE LEFT HAND KNOW WHAT THE RIGHT HAND IS DOING" OR HAS
DONE.  THAT THE BREACH OF AGREEMENT WAS INADVERTENT DOES NOT LESSEN ITS
IMPACT. 

WE NEED NOT REACH THE QUESTION WHETHER THE SENTENCING JUDGE WOULD OR
WOULD NOT HAVE BEEN INFLUENCED HAD HE KNOWN ALL THE DETAILS OF THE
NEGOTIATIONS FOR THE PLEA.  HE STATED THAT THE PROSECUTOR'S
RECOMMENDATION DID NOT INFLUENCE HIM AND WE HAVE NO REASON TO DOUBT
THAT.  NEVERTHELESS, WE CONCLUDE THAT THE INTERESTS OF JUSTICE AND
APPROPRIATE RECOGNITION OF THE DUTIES OF THE PROSECUTION IN RELATION TO
PROMISES MADE IN THE NEGOTIATION OF PLEAS OF GUILTY WILL BE BEST SERVED
BY REMANDING THE CASE TO THE STATE COURTS FOR FURTHER CONSIDERATION. 
THE ULTIMATE RELIEF TO WHICH PETITIONER IS ENTITLED WE LEAVE TO THE
DISCRETION OF THE STATE COURT, WHICH IS IN A BETTER POSITION TO DECIDE
WHETHER THE CIRCUMSTANCES OF THIS CASE REQUIRE ONLY THAT THERE BE
SPECIFIC PERFORMANCE OF THE AGREEMENT ON THE PLEA, IN WHICH CASE
PETITIONER SHOULD BE RESENTENCED BY A DIFFERENT JUDGE, OR WHETHER, IN
THE VIEW OF THE STATE COURT, THE CIRCUMSTANCES REQUIRE GRANTING THE
RELIEF SOUGHT BY PETITIONER, I.E., THE OPPORTUNITY TO WITHDRAW HIS PLEA
OF GUILTY.  /2/  WE EMPHASIZE THAT THIS IS IN NO SENSE TO QUESTION THE
FAIRNESS OF THE SENTENCING JUDGE; THE FAULT HERE RESTS ON THE
PROSECUTOR, NOT ON THE SENTENCING JUDGE. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR RECONSIDERATION
NOT INCONSISTENT WITH THIS OPINION. 

/1/  FED. RULE CRIM. PROC. 11 PROVIDES: 

"A DEFENDANT MAY PLEAD NOT GUILTY, GUILTY OR, WITH THE CONSENT OF
THE COURT, NOLO CONTENDERE.  THE COURT MAY REFUSE TO ACCEPT A PLEA OF
GUILTY, AND SHALL NOT ACCEPT SUCH PLEA OR A PLEA OF NOLO CONTENDERE
WITHOUT FIRST ADDRESSING THE DEFENDANT PERSONALLY AND DETERMINING THAT
THE PLEA IS MADE VOLUNTARILY WITH UNDERSTANDING OF THE NATURE OF THE
CHARGE AND THE CONSEQUENCES OF THE PLEA.  IF A DEFENDANT REFUSES TO
PLEAD OR IF THE COURT REFUSES TO ACCEPT A PLEA OF GUILTY OR IF A
DEFENDANT CORPORATION FAILS TO APPEAR, THE COURT SHALL ENTER A PLEA OF
NOT GUILTY.  THE COURT SHALL NOT ENTER A JUDGMENT UPON A PLEA OF GUILTY
UNLESS IT IS SATISFIED THAT THERE IS A FACTUAL BASIS FOR THE PLEA." 

/2/  IF THE STATE COURT DECIDES TO ALLOW WITHDRAWAL OF THE PLEA, THE
PETITIONER WILL, OF COURSE, PLEAD ANEW TO THE ORIGINAL CHARGE ON TWO
FELONY COUNTS. 

MR.JUSTICE DOUGLAS, CONCURRING. 

I JOIN THE OPINION OF THE COURT AND ADD ONLY A WORD.  I AGREE BOTH
WITH THE CHIEF JUSTICE AND WITH MR. JUSTICE MARSHALL THAT NEW YORK DID
NOT KEEP ITS "PLEA BARGAIN" WITH PETITIONER AND THAT IT IS NO EXCUSE
FOR THE DEFAULT MERELY BECAUSE A MEMBER OF THE PROSECUTOR'S STAFF WHO
WAS NOT A PARTY TO THE "PLEA BARGAIN" WAS IN CHARGE OF THE CASE WHEN IT
CAME BEFORE THE NEW YORK COURT.  THE STAFF OF THE PROSECUTION IS A UNIT
AND EACH MEMBER MUST BE PRESUMED TO KNOW THE COMMITMENTS MADE BY ANY
OTHER MEMBER.  IF RESPONSIBILITY COULD BE EVADED THAT WAY, THE
PROSECUTION WOULD HAVE DESIGNED ANOTHER DECEPTIVE "CONTRIVANCE," AKIN
TO THOSE WE CONDEMNED IN MOONEY V. HOLOHAN, 294 U.S. 103, 112, AND
NAPUE V. ILLINOIS, 360 U.S. 264. 

THESE "PLEA BARGAINS" ARE IMPORTANT IN THE ADMINISTRATION OF JUSTICE
BOTH AT THE STATE /1/  AND AT THE FEDERAL /2/  LEVELS AND, AS THE CHIEF
JUSTICE SAYS, THEY SERVE AN IMPORTANT ROLE IN THE DISPOSITION OF
TODAY'S HEAVY CALENDARS. 

HOWEVER IMPORTANT PLEA BARGAINING MAY BE IN THE ADMINISTRATION OF
CRIMINAL JUSTICE, OUR OPINIONS HAVE ESTABLISHED THAT A GUILTY PLEA IS A
SERIOUS AND SOBERING OCCASION INASMUCH AS IT CONSTITUTES A WAIVER OF
THE FUNDAMENTAL RIGHTS TO A JURY TRIAL, DUNCAN V. LOUISIANA, 391 U.S.
145, TO CONFRONT ONE'S ACCUSERS, POINTER V. TEXAS, 380 U.S. 400, TO
PRESENT WITNESSES IN ONE'S DEFENSE, WASHINGTON V. TEXAS, 388 U.S. 14,
TO REMAIN SILENT, MALLOY V. HOGAN, 378 U.S. 1, AND TO BE CONVICTED BY
PROOF BEYOND ALL REASONABLE DOUBT, IN RE WINSHIP, 397 U.S. 358.  SINCE
KERCHEVAL V. UNITED STATES, 274 U.S. 220, THIS COURT HAS RECOGNIZED
THAT "UNFAIRLY OBTAINED" GUILTY PLEAS IN THE FEDERAL COURTS OUGHT TO BE
VACATED.  IN THE COURSE OF HOLDING THAT WITHDRAWN GUILTY PLEAS WERE NOT
ADMISSIBLE IN SUBSEQUENT FEDERAL PROSECUTIONS, THE COURT OPINED: 

"(ON TIMELY APPLICATION, THE COURT WILL VACATE A PLEA OF GUILTY
SHOWN TO HAVE BEEN UNFAIRLY OBTAINED OR GIVEN THROUGH IGNORANCE, FEAR
OR INADVERTENCE.  SUCH AN APPLICATION DOES NOT INVOLVE ANY QUESTION OF
GUILTY OR INNOCENCE."  ID., AT 224. 

ALTHOUGH KERCHEVAL'S DICTUM CONCERNING GROUNDS FOR WITHDRAWAL OF
GUILTY PLEAS DID NOT EXPRESSLY REST ON CONSTITUTIONAL GROUNDS (CF.
FRAME V. HUDSPETH, 309 U.S. 632), WALKER V. JOHNSTON, 312 U.S. 275,
CLEARLY HELD THAT A FEDERAL PRISONER WHO HAD PLEADED GUILTY DESPITE HIS
IGNORANCE OF AND HIS BEING UNINFORMED OF HIS RIGHT TO A LAWYER WAS
DEPRIVED OF THAT SIXTH AMENDMENT RIGHT, OR IT HE HAD BEEN TRICKED BY
THE PROSECUTOR THROUGH MISREPRESENTATIONS INTO PLEADING GUILTY THEN HIS
DUE PROCESS RIGHTS WERE OFFENDED.  IN WALKER, THE PETITIONER WAS
GRANTED AN EVIDENTIARY HEARING TO PROVE HIS FACTUAL CLAIMS IN
ANTICIPATION OF VACATING THE PLEA.  ACCORD:  WALEY V. JOHNSTON, 316
U.S. 101; VON MOLTKE V. GILLIES, 332 U.S. 708.  IN MACHIBRODA V. UNITED
STATES, 368 U.S. 487, THE DEFENDANT ALLEGED THAT WHEN HE THREATENED TO
TELL HIS LAWYER OF PRIVATE PROMISES MADE BY AN ASSISTANT UNITED STATES
ATTORNEY IN EXCHANGE FOR A PROPOSED GUILTY PLEA, THE PROSECUTOR
THREATENED ADDITIONAL PROSECUTIONS.  ALTHOUGH THE GOVERNMENT DENIED
THEM, THE COURT HELD THAT IF THE ALLEGATIONS WERE TRUE, THEN THE
DEFENDANT WOULD BE ENTITLED TO HAVE HIS SENTENCE VACATED AND THE MATTER
WAS REMANDED FOR AN EVIDENTIARY HEARING. 

STATE CONVICTIONS FOUNDED UPON COERCED OR UNFAIRLY INDUCED GUILTY
PLEAS HAVE ALSO RECEIVED INCREASED SCRUTINY AS MORE FUNDAMENTAL RIGHTS
HAVE BEEN APPLIED TO THE STATES.  AFTER POWELL V. ALABAMA, 297 U.S. 45,
THE COURT HELD THAT A STATE DEFENDANT WAS ENTITLED TO A LAWYER'S
ASSISTANCE IN CHOOSING WHETHER TO PLEAD GUILTY.  WILLIAMS V. KAISER,
323 U.S. 471.  IN HERMAN V. CLAUDY, 350 U.S. 116, FEDERAL HABEAS CORPUS
WAS HELD TO LIE WHERE A LAWYER-LESS AND UNEDUCATED STATE PRISONER HAD
PLEADED GUILTY TO NUMEROUS AND COMPLEX ROBBERY CHARGES.  AND, A GUILTY
PLEA OBTAINED WITHOUT THE ADVICE OF COUNSEL MAY NOT BE ADMITTED AT A
SUBSEQUENT STATE PROSECUTION.  WHITE V. MARYLAND, 373 U.S. 59.  THUS,
WHILE PLEA BARGAINING IS NOT PER SE UNCONSTITUTIONAL, NORTH CAROLINA V.
ALFORD, 400 U.S. 25, 37-38, SHELTON V. UNITED STATES, 242 F.2D 101,
AFF'D EN BANC, 246 F.2D 571 (CA5 1957), A GUILTY PLEA IS RENDERED
VOIDABLE BY THREATENING PHYSICAL HARM, WALEY V. JOHNSTON, SUPRA,
THREATENING TO USE FALSE TESTIMONY, IBID., THREATENING TO BRING
ADDITIONAL PROSECUTIONS, MACHIBRODA V. UNITED STATES, SUPRA, OR BY
FAILING TO INFORM A DEFENDANT OF HIS RIGHT OF COUNSEL, WALKER V.
JOHNSTON, SUPRA.  UNDER THESE CIRCUMSTANCES IT IS CLEAR THAT A GUILTY
PLEA MUST BE VACATED. 

BUT IT IS ALSO CLEAR THAT A PROSECUTOR'S PROMISE MAY DEPRIVE A
GUILTY PLEA OF THE "CHARACTER OF A VOLUNTARY ACT."  MACHIBRODA V.
UNITED STATES, SUPRA, AT 493.  CF. BRAM V. UNITED STATES, 168 U.S. 532,
542-543.  THE DECISIONS OF THIS COURT HAVE NOT SPELLED OUT WHAT SORTS
OF PROMISES BY PROSECUTORS TEND TO BE COERCIVE, BUT IN ORDER TO ASSIST
APPELLATE REVIEW IN WEIGHING PROMISES IN LIGHT OF ALL THE
CIRCUMSTANCES, ALL TRIAL COURTS ARE NOW REQUIRED TO INTERROGATE THE
DEFENDANTS WHO ENTER GUILTY PLEAS SO THAT THE WAIVER OF THESE
FUNDAMENTAL RIGHTS WILL AFFIRMATIVELY APPEAR IN THE RECORD.  MCCARTHY
V. UNITED STATES, 394 U.S. 459; BOYKIN V. ALABAMA, 395 U.S. 238.  THE
LOWER COURTS, HOWEVER, HAVE UNIFORMLY HELD THAT A PRISONER IS ENTITLED
TO SOME FORM OF RELIEF WHEN HE SHOWS THAT THE PROSECUTOR RENEGED ON HIS
SENTENCING AGREEMENT MADE IN CONNECTION WITH A PLEA BARGAIN, MOST
JURISDICTIONS PREFERRING VACATION OF THE PLEA ON THE GROUND OF
"INVOLUNTARINESS," WHILE A FEW PERMIT ONLY SPECIFIC ENFORCEMENT.  NOTE:
GUILTY PLEA BARGAINING:  COMPROMISES BY PROSECUTORS TO SECURE GUILTY
PLEAS, 112 U.PA U.PA.L.REV.  865, 876 (1964).  AS ONE AUTHOR HAS
STATED, THE BASIS FOR OUTRIGHT VACATION IS "AN OUTRAGED SENSE OF
FAIRNESS" WHEN A PROSECUTOR BREACHES HIS PROMISE IN CONNECTION WITH
SENTENCING.  D. NEWMAN, CONVICTION:  THE DETERMINATION OF GUILT OR
INNOCENCE WITHOUT TRIAL 36 (1966). 

THIS IS A STATE CASE OVER WHICH WE HAVE NO "SUPERVISORY"
JURISDICTION; AND RULE 11 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
OBVIOUSLY HAS NO RELEVANCY TO TO THE PROBLEM. 

I JOIN THE OPINION OF THE COURT AND FAVOR A CONSTITUTIONAL RULE FOR
THIS AS WELL AS FOR OTHER PENDING OR ONCOMING CASES.  WHERE THE "PLEA
BARGAIN" IS NOT KEPT BY THE PROSECUTOR, THE SENTENCE MUST BE VACATED
AND THE STATE COURT WILL DECIDE IN LIGHT OF THE CIRCUMSTANCES OF EACH
CASE WHETHER DUE PROCESS REQUIRES (A) THAT THERE BE SPECIFIC
PERFORMANCE OF THE PLEA BARGAIN OR (B) THAT THE DEFENDANT BE GIVEN THE
OPTION TO GO TO TRIAL ON THE ORIGINAL CHARGES.  ON ALTERNATIVE MAY DO
JUSTICE IN ONE CASE, AND THE OTHER IN A DIFFERENT CASE.  IN CHOOSING A
REMEDY, HOWEVER, A COURT OUGHT TO ACCORD A DEFENDANT'S PREFERENCE
CONSIDERABLE, IF NOT CONTROLLING, WEIGHT INASMUCH AS THE FUNDAMENTAL
RIGHTS FLOUTED BY A PROSECUTOR'S BREACH OF A PLEA BARGAIN ARE THOSE OF
THE DEFENDANT, NOT OF THE STATE. 

/1/  IN 1964, GUILTY PLEAS ACCOUNTED FOR 95.5% OF ALL CRIMINAL
CONVICTIONS IN TRIAL COURTS OF GENERAL JURISDICTION IN NEW YORK.  IN
1965, THE FIGURE FOR CALIFORNIA WAS 74.0%.  PRESIDENT'S COMMISSION ON
LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:  THE
COURTS 9 (1967). 

/2/  IN 1964, GUILTY PLEAS ACCOUNTED FOR 90.2% OF ALL CRIMINAL
CONVICTIONS IN UNITED STATES DISTRICT COURTS.  IBID.  IN FISCAL 1970,
OF 28,178 CONVICTIONS IN THE 89 UNITED STATES DISTRICT COURTS, 24,111
WERE BY PLEAS OF GUILTY OR NOLO CONTENDERE.  REPORT OF DIRECTOR OF
ADMINISTRATIVE OFFICE OF U.S. COURTS FOR PERIOD JULY 1, THROUGH DEC.
31, 1970, TABLE D-4, P. A-26. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH MUCH OF THE MAJORITY'S OPINION, BUT CONCLUDE THAT
PETITIONER MUST BE PERMITTED TO WITHDRAW HIS GUILTY PLEA.  THIS IS THE
RELIEF PETITIONER REQUESTED, AND, ON THE FACTS SET OUT BY THE MAJORITY,
IT IS A FORM OF RELIEF TO WHICH HE IS ENTITLED. 

THERE IS NO NEED TO BELABOR THE FACT THAT THE CONSTITUTION
GUARANTEES TO ALL CRIMINAL DEFENDANTS THE RIGHT TO A TRIAL BY JUDGE OR
JURY, OR, PUT ANOTHER WAY, THE "RIGHT NOT TO PLEAD GUILTY," UNITED
STATES V. JACKSON, 390 U.S. 570, 581 (1968).  THIS AND OTHER FEDERAL
RIGHTS MAY BE WAIVED THROUGH A GUILTY PLEA, BUT SUCH WAIVERS ARE NOT
LIGHTLY PRESUMED AND, IN FACT, ARE VIEWED WITH THE "UTMOST
SOLICITUDE."  BOYKIN V. ALABAMA, 395 U.S. 238, 243 (1969).  GIVEN THIS,
I BELIEVE THAT WHERE THE DEFENDANT PRESENTS A REASON FOR VACATING HIS
PLEA AND THE GOVERNMENT HAS NOT RELIED ON THE PLEA TO ITS DISADVANTAGE,
THE PLEA MAY BE VACATED AND THE RIGHT TO TRIAL REGAINED, AT LEAST WHERE
THE MOTION TO VACATE IS MADE PRIOR TO SENTENCE AND JUDGMENT.  IN OTHER
WORDS, IN SUCH CIRCUMSTANCES I WOULD NOT DEEM THE EARLIER PLEA TO HAVE
IRREVOCABLY WAIVED THE DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO A
TRIAL. 

HERE, PETITIONER NEVER CLAIMED ANY AUTOMATIC RIGHT TO WITHDRAW A
GUILTY PLEA BEFORE SENTENCING.  RATHER, HE TENDERED A SPECIFIC REASON
WHY, IN HIS CASE, THE PLEA SHOULD BE VACATED.  HIS REASON WAS THAT THE
PROSECUTOR HAD BROKEN A PROMISE MADE IN RETURN FOR THE AGREEMENT TO
PLEAD GUILTY.  WHEN A PROSECUTOR BREAKS THE BARGAIN, HE UNDERCUTS THE
BASIS FOR THE WAIVER OF CONSTITUTIONAL RIGHTS IMPLICIT THE PLEA.  THIS,
IT SEEMS TO ME, PROVIDES THE DEFENDANT AMPLE JUSTIFICATION FOR
RESCINDING THE PLEA.  WHERE A PROMISE IS "UNFULFILLED," BRADY V. UNITED
STATES, 397 U.S.742, 755 (1970), SPECIFICALLY DENIES THAT THE PLEA
"MUST STAND."  OF COURSE, WHERE THE PROSECUTOR HAS BROKEN THE PLEA
AGREEMENT, IT MAY BE APPROPRIATE TO PERMIT THE DEFENDANT TO ENFORCE THE
PLEA BARGAIN.  BUT THAT IS NOT THE REMEDY SOUGHT HERE.  /1/  RATHER, IT
SEEMS TO ME THAT A BREACH OF THE PLEA BARGAIN PROVIDES AMPLE REASON TO
PERMIT THE PLEA TO BE VACATED. 

IT IS WORTH NOTING THAT IN THE ORDINARY CASE WHERE A MOTION TO
VACATE IS MADE PRIOR TO SENTENCING, THE GOVERNMENT HAS TAKEN NO ACTION
IN RELIANCE ON THE PREVIOUSLY ENTERED GUILTY PLEA AND WOULD SUFFER NO
HARM FROM THE PLEA'S WITHDRAWAL.  MORE POINTEDLY, HERE THE STATE CLAIMS
NO SUCH HARM BEYOND DISAPPOINTED EXPECTATIONS ABOUT THE PLEA ITSELF. 
AT LEAST WHERE THE GOVERNMENT ITSELF HAS BROKEN THE PLEA BARGAIN, THIS
DISAPPOINTMENT CANNOT BAR PETITIONER FROM WITHDRAWING HIS GUILTY PLEA
AND RECLAIMING HIS RIGHT TO A TRIAL. 

I WOULD REMAND THE CASE WITH INSTRUCTIONS THAT THE PLEA BE VACATED
AND PETITIONER GIVEN AN OPPORTUNITY TO REPLEAD TO THE ORIGINAL CHARGES
IN THE INDICTMENT. 

/1/  MR. JUSTICE DOUGLAS, ALTHOUGH JOINING THE COURT'S OPINION
(APPARENTLY BECAUSE HE THINKS THE REMEDY SHOULD BE CHOSEN BY THE STATE
COURT), CONCLUDES THAT THE STATE COURT "OUGHT TO ACCORD A DEFENDANT'S
PREFERENCE CONSIDERABLE, IF NOT CONTROLLING, WEIGHT."  THUS, A MAJORITY
OF THE COURT APPEARS TO BELIEVE THAT IN CASES LIKE THESE, WHEN THE
DEFENDANT SEEKS TO VACATE THE PLEA, THAT RELIEF SHOULD GENERALLY BE
GRANTED. 

IRVING ANOLIK ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

DANIEL J. SULLIVAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS BURTON B. ROBERTS. 
..END :













PICARD V. CONNOR, 404 U.S. 270 


       PICARD V. CONNOR

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT

        NO. 70-96.  ARGUED NOVEMBER 17, 1971-- DECIDED DECEMBER 20,

           1971 


A GRAND JURY RETURNED A MURDER INDICTMENT AGAINST A NAMED INDIVIDUAL
"AND JOHN DOE, THE TRUE NAME AND A MORE PARTICULAR DESCRIPTION OF THE
SAID JOHN DOE BEING TO THE SAID JURORS UNKNOWN."  AFTER RESPONDENT'S
ARREST THE INDICTMENT WAS AMENDED PURSUANT TO STATE LAW TO SUBSTITUTE
RESPONDENT'S NAME FOR "JOHN DOE."  THE HIGHEST STATE COURT AFFIRMED
RESPONDENT'S SUBSEQUENT CONVICTION, REJECTING HIS CHALLENGE TO THE
LEGALITY OF THE INDICTMENT MADE ON THE GROUND THAT THE AMENDING
PROCEDURE DID NOT COMPLY WITH THE STATUTE.  RESPONDENT SUBSEQUENTLY
FILED A PETITION FOR A WRIT OF HABEAS CORPUS IN THE DISTRICT COURT
WHICH DISMISSED THE PETITION.  THE COURT OF APPEALS REVERSED, HOLDING
THAT THE PROCEDURE BY WHICH RESPONDENT WAS BROUGHT TO TRIAL WAS
VIOLATIVE OF EQUAL PROTECTION.  THE COURT REJECTED PETITIONER'S
CONTENTION THAT RESPONDENT, WHO HAD NOT PREVIOUSLY RAISED THE EQUAL
PROTECTION ISSUE, HAD NOT EXHAUSTED AVAILABLE STATE JUDICIAL REMEDIES
AS REQUIRED BY 28 U.S.C. 2254, HOLDING THAT RESPONDENT HAD PRESENTED
THE STATE COURT WITH "AN OPPORTUNITY TO APPLY CONTROLLING LEGAL
PRINCIPLES TO THE FACTS BEARING UPON (HIS) CONSTITUTIONAL CLAIM." 
HELD:  THE SUBSTANCE OF A FEDERAL HABEAS CORPUS CLAIM MUST IN THE FIRST
INSTANCE BE FAIRLY PRESENTED TO THE STATE COURTS, AND SINCE ON THE
RECORD AND ARGUMENT BEFORE IT THE STATE'S HIGHEST COURT HAD NO FAIR
OPPORTUNITY TO CONSIDER AND ACT UPON THE EQUAL PROTECTION CLAIM ,THE
COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENT HAD EXHAUSTED HIS
STATE REMEDIES.  PP. 275-278. 

434 F.2D 673, REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH
BURGER,C.J., AND STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 278. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT, REVERSING THE DISTRICT
COURT'S DISMISSAL OF RESPONDENT'S PETITION FOR A WRIT OF FEDERAL HABEAS
CORPUS, /1/  HELD THAT "THE PROCEDURE BY WHICH (RESPONDENT) WAS BROUGHT
TO TRIAL DEPRIVED HIM OF THE FOURTEENTH AMENDMENT'S GUARANTEE OF EQUAL
PROTECTION OF THE LAWS."  434 F.2D 673, 674 (1970).  THE COURT OF
APPEALS ACKNOWLEDGED THAT RESPONDENT HAD NOT ATTACKED HIS CONVICTION ON
THE EQUAL PROTECTION GROUND, EITHER IN THE STATE COURTS OR IN HIS
FEDERAL HABEAS PETITION: 

"(RESPONDENT) DID NOT PRESENT THE CONSTITUTIONAL QUESTION TO THE
MASSACHUSETTS COURT IN THE PARTICULAR FOCUS IN WHICH THIS OPINION IS
DIRECTED.  WE SUGGESTED IT WHEN THE CASE REACHED US, AND INVITED THE
COMMONWEALTH TO FILE A SUPPLEMENTAL BRIEF.  NOT UNNATURALLY ITS FIRST
CONTENTION WAS TO ASSERT THAT (RESPONDENT) HAD NOT EXHAUSTED HIS STATE
REMEDY . . . ."  IBID. THE COURT OF APPEALS REJECTED THAT CONTENTION
AND HELD THAT RESPONDENT HAD EXHAUSTED AVAILABLE STATE JUDICIAL
REMEDIES, AS REQUIRED BY 28 U.S.C. 2254, /2/  BECAUSE HE HAD "PRESENTED
THE (STATE) COURT WITH 'AN OPPORTUNITY TO APPLY CONTROLLING LEGAL
PRINCIPLES TO THE FACTS BEARING UPON (HIS) CONSTITUTIONAL CLAIM.'" 
IBID.  WE GRANTED CERTIORARI TO CONSIDER THAT RULING IN LIGHT OF THE
COMMAND OF SEC. 2254.  402 U.S.942 (1971).  WE HOLD THAT THE STATE'S
OBJECTION SHOULD HAVE BEEN SUSTAINED, AND WE THEREFORE REVERSE FOR
FURTHER PROCEEDINGS, SEE SLAYTON V. SMITH, ANTE, P. 53, WITHOUT
REACHING THE MERITS OF THE CONSTITUTIONAL QUESTION DECIDED BY THE COURT
OF APPEALS.  /3/ 

A MASSACHUSETTS GRAND JURY RETURNED AN INDICTMENT FOR MURDER AGAINST
DONALD LANDRY "AND JOHN DOE, THE TRUE NAME AND A MORE PARTICULAR
DESCRIPTION OF THE SAID JOHN DOE BEING TO THE SAID JURORS UNKNOWN." 
AFTER RESPONDENT'S ARREST, THE INDICTMENT WAS AMENDED IN A PROCEEDING
PURSUANT TO A FICTITIOUS-NAME STATUTE, MASS. GEN. LAWS ANN., C. 277,
SEC. 19, /4/  TO SUBSTITUTE RESPONDENT'S NAME FOR "JOHN DOE."  THE
MASSACHUSETTS SUPREME JUDICIAL COURT AFFIRMED RESPONDENT'S SUBSEQUENT
CONVICTION, SUB NOM. COMMONWEALTH V. DOHERTY, 353 MASS. 197, 229 N.E.2D
267 (1967).  AMONG OTHER GROUNDS OF APPEAL, RESPONDENT CHALLENGED THE
LEGALITY OF THE INDICTMENT.  THE GIST OF RESPONDENT'S ARGUMENT, WHICH
HE ALSO ASSERTED DURING VARIOUS TRIAL PROCEEDINGS, WAS THAT THE
AMENDING PROCEDURE DID NOT COMPLY WITH THE STATUTE AS CONSTRUED BY THE
MASSACHUSETTS COURTS, WITH THE RESULT THAT HE HAD NOT BEEN LAWFULLY
INDICTED FOR THE CRIME.  SEE COMMONWEALTH V. GEDZIUM, 259 MASS. 453,
156 N.E. 890 (1927).  /5/  THE ONLY SUGGESTIONS OF A CLAIMED DENIAL OF
A FEDERAL RIGHT WERE STATEMENTS IN RESPONDENT'S BRIEF QUESTIONING THE
CONTINUING VALIDITY OF THE HOLDING IN GEDZIUM THAT THE PROVISION OF THE
FIFTH AMENDMENT THAT "(NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL,
OR OTHERWISE INFAMOUS CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A
GRAND JURY" WAS INAPPLICABLE TO THE STATES.  ID., AT 457, 156 N.E.,AT
891; SEE HURTADO V. CALIFORNIA, 110 U.S. 516 (1884).  /6/  WE HAVE
EXAMINED THE PRETRIAL, TRIAL, AND APPELLATE PAPERS AND DO NOT DISCOVER
ANY INDICATION OF AN ATTACK UPON THE PROSECUTION UNDER THE INDICTMENT
AS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  /7/ 

IT HAS BEEN SETTLED SINCE EX PARTE ROYALL, 117 U.S. 241 (1886), THAT
A STATE PRISONER MUST NORMALLY EXHAUST AVAILABLE STATE JUDICIAL
REMEDIES BEFORE A FEDERAL COURT WILL ENTERTAIN HIS PETITION FOR HABEAS
CORPUS.  SEE, E.G., NELSON V. GEORGE, 399 U.S. 224, 229 (1970); IRVIN
V. DOWD, 359 U.S. 394, 404-405 (1959); EX PARTE HAWK, 321 U.S. 114
(1944).  THE EXHAUSTION-OF-STATE-REMEDIES DOCTRINE, NOW CODIFIED IN THE
FEDERAL HABEAS STATUTE, 28 U.S.C. 2254(B) AND (C), /8/  REFLECTS A
POLICY OF FEDERAL-STATE COMITY, FAY V. NOIA, 372 U.S. 391, 419-420
(1963); BOWEN V. JOHNSTON, 306 U.S. 19, 27 (1939), "AN ACCOMMODATION OF
OUR FEDERAL SYSTEM DESIGNED TO GIVE THE STATE THE INITIAL 'OPPORTUNITY
TO PASS UPON AND CORRECT' ALLEGED VIOLATIONS OF ITS PRISONERS' FEDERAL
RIGHTS."  WILWORDING V. SWENSON, ANTE, P. 249, AT 250.  WE HAVE
CONSISTENTLY ADHERED TO THIS FEDERAL POLICY, FOR "IT WOULD BE UNSEEMLY
IN OUR DUAL SYSTEM OF GOVERNMENT FOR A FEDERAL DISTRICT COURT TO UPSET
A STATE COURT CONVICTION WITHOUT AN OPPORTUNITY TO THE STATE COURTS TO
CORRECT A CONSTITUTIONAL VIOLATION."  DARR V. BURFORD, 339 U.S. 200,
204 (1950) (OVERRULED IN OTHER RESPECTS, FAY V. NOIA, SUPRA, AT 435
436).  IT FOLLOWS, OF COURSE, THAT ONCE THE FEDERAL CLAIM HAS BEEN
FAIRLY PRESENTED TO THE STATE COURTS, THE EXHAUSTION REQUIREMENT IS
SATISFIED.  SEE, E.G., WILWORDING V. SWENSON, SUPRA, AT 250; ROBERTS V.
LAVALLEE, 389 U.S. 40, 42-43 (1967); BROWN V. ALLEN, 344 U.S. 443, 447
450 (1953). 

WE EMPHASIZE THAT THE FEDERAL CLAIM MUST BE FAIRLY PRESENTED TO THE
STATE COURTS.  IF THE EXHAUSTION DOCTRINE IS TO PREVENT "UNNECESSARY
CONFLICT BETWEEN COURTS EQUALLY BOUND TO GUARD AND PROTECT RIGHTS
SECURED BY THE CONSTITUTION," EX PARTE ROYALL, SUPRA, AT 251, IT IS NOT
SUFFICIENT MERELY THAT THE FEDERAL HABEAS APPLICANT HAS BEEN THROUGH
THE STATE COURTS.  THE RULE WOULD SERVE NO PURPOSE IF IT COULD BE
SATISFIED BY RAISING ONE CLAIM IN THE STATE COURTS AND ANOTHER IN THE
FEDERAL COURTS.  ONLY IF THE STATE COURTS HAVE HAD THE FIRST
OPPORTUNITY TO HEAR THE CLAIM SOUGHT TO BE VINDICATED IN A FEDERAL
HABEAS PROCEEDING DOES IT MAKE SENSE TO SPEAK OF THE EXHAUSTION OF
STATE REMEDIES.  ACCORDINGLY, WE HAVE REQUIRED A STATE PRISONER TO
PRESENT THE STATE COURTS WITH THE SAME CLAIM HE URGES UPON THE FEDERAL
COURTS.  SEE DARR V. BURFORD, SUPRA, AT 203; DAVIS V. BURKE, 179 U.S.
399, 401-403 (1900). 

RESPONDENT CHALLENGED THE VALIDITY OF HIS INDICTMENT AT EVERY STAGE
OF THE PROCEEDINGS IN THE MASSACHUSETTS COURTS.  AS THE COURT OF
APPEALS POINTED OUT, 434 F.2D,AT 674, THIS IS NOT A CASE IN WHICH
FACTUAL ALLEGATIONS WERE MADE TO THE FEDERAL COURTS THAT WERE NOT
BEFORE THE STATE COURTS, SEE, E.G., UNITED STATES EX REL. BOODIE V.
HEROLD, 349 F.2D 372 (CA2 1965); SCHIERS V. CALIFORNIA, 333 F.2D 173
(CA9 1964), NOR A CASE IN WHICH AN INTERVENING CHANGE IN FEDERAL LAW
CAST THE LEGAL ISSUE IN A FUNDAMENTALLY DIFFERENT LIGHT, SEE, E.G.,
BLAIR V. CALIFORNIA, 340 F.2D 741 (CA9 1965); PENNSYLVANIA EX REL.
RAYMOND V. RUNDLE, 339 F.2D 598 (CA3 1964).  WE THEREFORE PUT ASIDE
CONSIDERATION OF THOSE TYPES OF CASES.  THE QUESTION HERE IS SIMPLY
WHETHER, ON THE RECORD AND ARGUMENT BEFORE IT, THE MASSACHUSETTS
SUPREME JUDICIAL COURT HAD A FAIR OPPORTUNITY TO CONSIDER THE EQUAL
PROTECTION CLAIM AND TO CORRECT THAT ASSERTED CONSTITUTIONAL DEFECT IN
RESPONDENT'S CONVICTION.  WE THINK NOT. 

UNTIL HE REACHED THIS COURT, /9/  RESPONDENT NEVER CONTENDED THAT
THE METHOD BY WHICH HE WAS BROUGHT TO TRIAL DENIED HIM EQUAL PROTECTION
OF THE LAWS.  RATHER, FROM THE OUTSET RESPONDENT CONSISTENTLY ARGUED
THAT HE HAD BEEN IMPROPERLY INDICTED UNDER MASSACHUSETTS LAW AND, TO
THE EXTENT HE RAISED A FEDERAL CONSTITUTIONAL CLAIM AT ALL, THAT THE
INDICTMENT PROCEDURE EMPLOYED IN HIS CASE COULD NOT BE APPROVED WITHOUT
REFERENCE TO WHETHER THE FIFTH AMENDMENT'S REQUIREMENT OF A GRAND JURY
INDICTMENT APPLIED TO THE STATES.  HE ADVERTED TO THE FOURTEENTH
AMENDMENT SOLELY AS IT BORE UPON THAT SUBMISSION.  /10/  THE EQUAL
PROTECTION ISSUE ENTERED THIS CASE ONLY BECAUSE THE COURT OF APPEALS
INJECTED IT. 

WE ARE THUS UNABLE TO AGREE WITH THAT COURT THAT RESPONDENT PROVIDED
THE MASSACHUSETTS "COURT WITH 'AN OPPORTUNITY TO APPLY CONTROLLING
LEGAL PRINCIPLES TO THE FACTS BEARING UPON (HIS) CONSTITUTIONAL
CLAIM.'"  434 F.2D, AT 674.  TO BE SURE, RESPONDENT PRESENTED ALL THE
FACTS.  YET THE CONSTITUTIONAL CLAIM THE COURT OF APPEALS FOUND
INHERENT IN THOSE FACTS WAS NEVER BROUGHT TO THE ATTENTION OF THE STATE
COURTS.  THE SUPREME JUDICIAL COURT DEALT WITH THE ARGUMENTS RESPONDENT
OFFERED; WE CANNOT FAULT THAT COURT FOR FAILING ALSO TO CONSIDER SUA
SPONTE WHETHER THE INDICTMENT PROCEDURE DENIED RESPONDENT EQUAL
PROTECTION OF THE LAWS.  OBVIOUSLY THERE ARE INSTANCES IN WHICH "THE
ULTIMATE QUESTION FOR DISPOSITION," UNITED STATES EX REL. KEMP V. PATE,
359 F.2D 749, 751 (CA7 1966), WILL BE THE SAME DESPITE VARIATIONS IN
THE LEGAL THEORY OR FACTUAL ALLEGATIONS URGED IN ITS SUPPORT.  A READY
EXAMPLE IS A CHALLENGE TO A CONFESSION PREDICATED UPON PSYCHOLOGICAL AS
WELL AS PHYSICAL COERCION.  SEE SANDERS V. UNITED STATES, 373 U.S. 1,
16 (1963).  HENCE, WE DO NOT IMPLY THAT RESPONDENT COULD HAVE RAISED
THE EQUAL PROTECTION CLAIM ONLY BY CITING "BOOK AND VERSE ON THE
FEDERAL CONSTITUTION."  DAUGHARTY V. GLADDEN, 257 F.2D 750, 758 (CA9
1958); SEE KIRBY V. WARDEN, 296 F.2D 151 (CA41961).  WE SIMPLY HOLD
THAT THE SUBSTANCE OF A FEDERAL HABEAS CORPUS CLAIM MUST FIRST BE
PRESENTED TO THE STATE COURTS.  THE CLAIM THAT AN INDICTMENT IS INVALID
IS NOT THE SUBSTANTIAL EQUIVALENT OF A CLAIM THAT IT RESULTS IN AN
UNCONSTITUTIONAL DISCRIMINATION.  SEE ROSE V. DICKSON, 327 F.2D 27, 29
(CA9 1964); MORRIS V. MAYO, 277 F.2D 103 (CA5 1960).  THE JUDGMENT OF
THE COURT OF APPEALS IS THEREFORE REVERSED, AND THE CASE IS REMANDED TO
THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  308 F.SUPP.  843 (MASS. 1970). 

/2/ TITLE 28 U.S.C. 2254 PROVIDES IN PERTINENT PART: 

"(B) AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A
PERSON IN CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT
BE GRANTED UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE
REMEDIES AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER
AN ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER. 

"(C) AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

/3/  RESPONDENT DOES NOT CONTEND THAT THERE ARE NO AVAILABLE STATE
JUDICIAL REMEDIES THROUGH WHICH HE CAN PRESENT THE EQUAL PROTECTION
CLAIM.  IT APPEARS THAT MASSACHUSETTS PROVIDES POSTCONVICTION
PROCEDURES ADEQUATE TO ADJUDICATE THAT CLAIM, EITHER BY MOTION FOR A
NEW TRIAL, MASS. GEN. LAWS ANN., C. 278, SEC. 29; SEE EARL V.
COMMONWEALTH, 356 MASS. 181, 248 N.E.2D 498 (1969), OR BY WRIT OF
ERROR, MASS. GEN. LAWS ANN., C. 250; SEE CORTELLESSO V. COMMONWEALTH,
354 MASS. 514, 238 N.E.2D 516 (1968); CROWELL V. COMMONWEALTH, 352
MASS. 288, 225 N.E.2D 330 (1967); SHOPPERS' WORLD, INC. V. BOARD OF
ASSESSORS, 348 MASS. 366, 376 N. 9, 203 N.E.2D 811, 819 N. 9 (1965). 

/4/  "IF THE NAME OF AN ACCUSED PERSON IS UNKNOWN TO THE GRAND JURY,
HE MAY BE DESCRIBED BY A FICTITIOUS NAME OR BY ANY OTHER PRACTICABLE
DESCRIPTION, WITH AN ALLEGATION THAT HIS REAL NAME IS UNKNOWN.  AN
INDICTMENT OF THE DEFENDANT BY A FICTITIOUS OR ERRONEOUS NAME SHALL NOT
BE GROUND FOR ABATEMENT; BUT IF AT ANY SUBSEQUENT STAGE OF THE
PROCEEDINGS HIS TRUE NAME IS DISCOVERED, IT SHALL BE ENTERED ON THE
RECORD AND MAY BE USED IN THE SUBSEQUENT PROCEEDINGS, WITH A REFERENCE
TO THE FACT THAT HE WAS INDICTED BY THE NAME OR DESCRIPTION MENTIONED
IN THE INDICTMENT." 

/5/  ALTHOUGH THE MASSACHUSETTS CONSTITUTION DOES NOT EXPRESSLY
PROVIDE FOR GRAND JURY INDICTMENTS, THE MASSACHUSETTS COURTS HAVE
CONSTRUED ART. XII OF THE DECLARATION OF RIGHTS TO REQUIRE THAT "'NO
PERSON . . . SHALL BE HELD TO ANSWER FOR A CAPITAL OR OTHERWISE
INFAMOUS CRIME . . . UNLESS HE SHALL HAVE BEEN PREVIOUSLY CHARGED ON
THE PRESENTMENT OR INDICTMENT OF A GRAND JURY.'"  JONES V. ROBBINS, 74
MASS. 329, 344-345 (1857). 

/6/  IN ARGUING HIS FIRST ASSIGNMENT OF ERROR: 

"(THE DISMISSAL IN THE GEDZIUM CASE OF THE APPLICABILITY OF THE
FIFTH AMENDMENT PROVISION . . . WOULD APPEAR TO BE IN NEED OF
REEXAMINATION, IN THE LIGHT OF THE DEVELOPMENT BY THE UNITED STATES
SUPREME COURT . . . OF THE DOCTRINE OF APPLICABILITY OF GUARANTEES OF
THE FEDERAL BILL OF RIGHTS TO THE STATES BY VIRTUE OF THE FOURTEENTH
AMENDMENT."  BRIEF FOR CONNOR IN THE MASSACHUSETTS SUPREME JUDICIAL
COURT 13. 

IN ARGUING HIS THIRD AND FOURTH ASSIGNMENTS OF ERROR: 

"AS SET FORTH SUPRA IN THE ARGUMENT IN SUPPORT OF THE FIRST
ASSIGNMENT, THE INDICTMENT OF 'JOHN DOE' WAS A NULLITY BECAUSE IT WAS A
GENERAL INDICTMENT, NOT LIMITED TO ANY IDENTIFIABLE INDIVIDUAL.  SINCE
THIS IS A CAPITAL CASE, THE DEFENDANT CONNOR WAS PROSECUTED IN
VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS IN THAT HE WAS PUT
TO TRIAL WITHOUT HAVING BEEN INDICTED BY A GRAND JURY."  ID., AT 14. 

/7/  NOR DID RESPONDENT'S FEDERAL HABEAS PETITION ASSERT A DENIAL OF
EQUAL PROTECTION.  THE PETITION ALLEGES THAT "(HE WAS BROUGHT TO TRIAL
WITHOUT INDICTMENT OR PRESENTMENT IN VIOLATION OF THE FIFTH AMENDMENT
AND OF THE MASSACHUSETTS CONSTITUTION, . . . (OF) THE STATUTORY
PROVISIONS OF (THE FICTITIOUS-NAME STATUTE), AND OF THE RULE OF THE
COMMON LAW THAT AN INDICTMENT IN A CAPITAL CASE . . . FORBIDS ANY
AMENDMENT TO SUCH AN INDICTMENT."  IN HIS MEMORANDUM IN SUPPORT OF THE
PETITION, RESPONDENT ARGUED THAT THE MASSACHUSETTS INDICTMENT PROCEDURE
"MUST BE ADMINISTERED IN ACCORDANCE WITH THE PRINCIPLES PERTAINING TO
THE GRAND JURY AS ESTABLISHED BY THE LAW OF THE LAND, I.E., IN
ACCORDANCE WITH DUE PROCESS AS CREATED BY THE COMMON LAW AND ADOPTED BY
OUR CONSTITUTION . . . . IN ACCORDANCE WITH THESE PRINCIPLES, SINCE THE
INDICTMENT DID NOT NAME NOR DESCRIBE (RESPONDENT), IT WAS, AS TO HIM, A
NULLITY, AND REMAINED SO AFTER AMENDMENT."  THE DISTRICT COURT, NOTING
THAT RESPONDENT HAD "ARGUED INDISCRIMINATELY ON THE BASIS OF THE
STATUTES AND CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS, AS WELL
AS UPON FEDERAL GROUNDS," 308 F.SUPP.,AT 845 N. 2, CONSIDERED
RESPONDENT'S CONTENTION TO BE "THAT THE AMENDMENT OF THE INDICTMENT TO
SUBSTITUTE CONNOR'S NAME FOR JOHN DOE WAS A VIOLATION OF THE FIFTH
AMENDMENT."  THE COURT REJECTED THAT CONTENTION ON THE GROUND "THAT THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT MAKE APPLICABLE
TO THE STATES THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT." 
ID.,AT 845. 

/8/  SEE N. 2, SUPRA. 

/9/  THE DECISION OF THE COURT OF APPEALS PROMPTED RESPONDENT, FOR
THE FIRST TIME IN ANY COURT, TO ADVANCE THE ARGUMENT IN THIS COURT THAT
"SINCE INDICTMENT IS THE ONLY PROCESS PROVIDED FOR THE FINDING OF
PROBABLE CAUSE IN MASSACHUSETTS PRIOR TO TRIAL, ITS DENIAL IN CONNOR'S
CASE ALONE WAS UNDOUBTEDLY A VIOLATION OF CONNOR'S FEDERAL RIGHTS NOT
ONLY AS TO DUE PROCESS, BUT ALSO EQUAL PROTECTION, UNDER THE FOURTEENTH
AMENDMENT, AS STATED BY THE CHIEF JUDGE OF THE CIRCUIT COURT."  BRIEF
FOR RESPONDENT 15. 

/10/ RESPONDENT REITERATED THESE CONTENTIONS IN HIS FEDERAL HABEAS
PETITION.  SEE N. 7, SUPRA. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WITH ALL RESPECT, I THINK THAT IN THIS CASE WE CARRY THE RULE OF
EXHAUSTION OF STATE REMEDIES TOO FAR.  CONNOR'S NAME WAS ADDED TO THE
INDICTMENT AFTER IT WAS RETURNED BY THE STATE GRAND JURY, HE BEING
SUBSTITUTED FOR "JOHN DOE."  HE RAISED IN HIS BRIEF BEFORE THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS HIS CLAIM THAT SUCH A SUBSTITUTION
DENIED HIM THAT QUANTUM OF DUE PROCESS REQUIRED BY THE FOURTEENTH
AMENDMENT "IN THAT HE WAS PUT TO TRIAL WITHOUT HAVING BEEN INDICTED BY
A GRAND JURY."  /1/  HE DID NOT REFER TO THE EQUAL PROTECTION CLAUSE
WHICH IS ALSO A PART OF THE FOURTEENTH AMENDMENT.  BUT THAT IS A NICETY
IRRELEVANT TO THE MAINTENANCE OF HEALTHY STATE-FEDERAL RELATIONS ON
WHICH THE COURT MAKES THE PRESENT DECISION TURN.  THE CONCEPT OF DUE
PROCESS IS BROAD AND EXPANSIVE, AND "THE CONCEPTS OF EQUAL PROTECTION
AND DUE PROCESS, BOTH STEMMING FROM OUR AMERICAN IDEAL OF FAIRNESS, ARE
NOT MUTUALLY EXCLUSIVE."  BOLLING V. SHARPE, 347 U.S. 497, 499.  WE
HAVE THUS HELD THAT THE DENIAL OF EQUAL PROTECTION, VIZ., INVIDIOUS
DISCRIMINATION, MAY BE "SO UNJUSTIFIABLE AS TO BE VIOLATIVE OF DUE
PROCESS."  IBID.  /2/  AS MR.JUSTICE BRENNAN SAID IN BODDIE V.
CONNECTICUT, 401 U.S. 371, 388 (CONCURRING OPINION), "THE QUESTION THAT
THE COURT TREATS EXCLUSIVELY AS ONE OF DUE PROCESS INEVITABLY
IMPLICATES CONSIDERATIONS OF BOTH DUE PROCESS AND EQUAL PROTECTION." 
THAT IS LIKEWISE TRUE HERE. 

MOREOVER, A DUE PROCESS POINT IS PLAINLY RAISED WHERE AN ACCUSED
CLAIMS THAT NO GRAND JURY FOUND "PROBABLY CAUSE" TO INDICT HIM, THAT
ITS ONLY FINDING CONCERNED SOMEONE UNKNOWN AT THE TIME. 

IF CONNOR HAD COMPLAINED OF A COERCED CONFESSION, OR OF PERJURED
TESTIMONY, AND THE FACTS ON WHICH HE RELIED WERE DEVELOPED IN THE STATE
COURT, THE CONSTITUTIONAL QUESTIONS WOULD SURELY HAVE BEEN SUFFICIENTLY
RAISED WITHOUT REFERENCE TO THE PRECISE CONSTITUTIONAL PROVISIONS
INVOLVED.  THE SITUATION HERE IS NO DIFFERENT.  /3/ 

THE JUDGES TO WHOM THAT ISSUE OF LAW IS TENDERED ARE LEARNED MEN WHO
WE MUST ASSUME ARE KNOWLEDGEABLE AS TO THE MEANING OF DUE PROCESS.  A
LAW STUDENT WHO TENDERED A BRIEF THAT LEFT DUE PROCESS AT LARGE WOULD
CERTAINLY NOT BE WORTHY OF AN "A."  BUT THE NICETY OF ANALYSIS WHICH WE
ASSOCIATE WITH SCHOLARSHIP HAS NO FUNCTIONAL ROLE TO PLAY IN THIS AREA
OF EXHAUSTION OF STATE REMEDIES.  WHEN WE GO TO THAT EXTREME, WE MAKE A
TRAP OUT OF THE EXHAUSTION DOCTRINE WHICH PROMISES TO EXHAUST THE
LITIGANT AND HIS RESOURCES, NOT THE REMEDIES. 

I FEAR THAT OUR RELUCTANCE TO BACKSTOP THE COURT OF APPEALS IN THE
PRESENT CASE IS SYMPTOMATIC OF THIS COURT'S TREND TO SIDESTEP ALL
POSSIBLE CONTROVERSIES SO, AS IT HOPES, TO LET THEM DISAPPEAR.  OF
COURSE WE SHOULD REMIT A LITIGANT TO HIS STATE TRIBUNAL IF FACTS HAVE
EMERGED WHICH WERE NOT KNOWN AT THE TIME OF THE TRIAL OR IF INTERVENING
DECISIONS HAVE OUTDATED THE EARLIER STATE DECISION.  NO SUCH SITUATION
EXISTS HERE.  THE FACTS ARE SIMPLE AND UNCONTESTED:  CONNOR'S NAME WAS
SUBSTITUTED FOR JOHN DOE AFTER THE INDICTMENT WAS RETURNED.  THE POINT
OF LAW IS CLEAR NOW AND WILL BE NO CLEARER ON THE REMAND.  ITS
VULNERABILITY TESTED BY DUE PROCESS WAS AS OBVIOUS WHEN THE CASE WAS
BEFORE THE SUPREME JUDICIAL COURT OF MASSACHUSETTS AS IT NOW IS.  I
THINK THE COURT OF APPEALS ACTED RESPONSIBLY IN RULING ON IT.  WE
SHOULD DECIDE THE MERITS HERE AND NOW.  ENDLESS REPETITIVE PROCEDURES
ARE ENCOURAGED BY TODAY'S RULING ON EXHAUSTION OF REMEDIES.  I WOULD
BRING THIS LITIGATION TO AN END TODAY BY APPLYING THE EXHAUSTION-OF
REMEDY RULE TO TERMINATE RATHER THAN MULTIPLY PROCEDURES THAT NOW
ENGULF THE STATE-FEDERAL REGIME. 

/1/  THE COURT PROPERLY SAYS THAT RESPONDENT TENDERED THE VALIDITY
OF COMMONWEALTH V. GEDZIUM, 259 MASS. 453, 156 N.E. 890, TO THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS.  THAT, HOWEVER, WAS IN HIS FIRST
ASSIGNMENT OF ERROR.  BUT IN HIS THIRD AND FOURTH ASSIGNMENTS OF ERROR
HE ALLEGED THAT HE WAS PROSECUTED "IN VIOLATION OF HIS CONSTITUTIONAL
RIGHT TO DUE PROCESS IN THAT HE WAS PUT TO TRIAL WITHOUT HAVING BEEN
INDICTED BY A GRAND JURY." 

/2/  THE OVERLAP IS, OF COURSE, NOT TOTAL.  BOLLING V. SHARPE, 347
U.S. 497, 499.  BUT THE EXTENT TO WHICH THE TWO CONCEPTS MERGE HAS BEEN
A SUBJECT TO DEBATE SINCE REPRESENTATIVE JOHN A. BINGHAM OF OHIO, AN
ARCHITECT OF THE FOURTEENTH AMENDMENT, USED THE PHRASES "DUE PROCESS"
AND "EQUAL PROTECTION" INTERCHANGEABLY ON THE FLOOR OF CONGRESS.  CONG.
GLOBE, 39TH CONG., 1ST SESS., 1088-1089.  SEE, E.G., WILSON, THE
MERGING CONCEPTS OF LIBERTY AND EQUALITY, 12 WASH. & LEE L. REV. 182,
ANTIEAU, EQUAL PROTECTION OUTSIDE THE CLAUSE, 40 CALIF.L.REV.  362,
TUSSMAN & TENBROEK, THE EQUAL PROTECTION OF THE LAWS, 37 CALIF.L.REV. 
341.  COMPARE DOUGLAS V. CALIFORNIA, 372 U.S. 353, AND GRIFFIN V.
ILLINOIS, 351 U.S. 12, WITH GIDEON V. WAINWRIGHT, 372 U.S. 335, AND
POWELL V. ALABAMA, 287 U.S. 45. 

THERE IS APPARENTLY A SIMILAR CONTROVERSY IN INDIA, WHOSE
CONSTITUTION ALSO CONTAINS BOTH A DUE PROCESS AND EQUAL PROTECTION
CLAUSE.  SEE, E.G., NARAIN, EQUAL PROTECTION GUARANTEE AND THE RIGHT OF
PROPERTY UNDER THE INDIAN CONSTITUTION, 15 INT.&COMP.L.W. 199. 

/3/  DAUGHARTY V. GLADDEN 257 F.2D 750 (CA9), WHICH THE COURT CITES,
IS INSTRUCTIVE.  DAUGHARTY WAS AN INDIGENT STATE PRISONER.  HE APPEALED
THE DENIAL OF STATE HABEAS CORPUS TO THE INTERMEDIATE STATE APPELLATE
COURT, BUT THAT COURT DISMISSED THE APPEAL BECAUSE DAUGHARTY COULD NOT
AFFORD TO SUPPLY AN APPELLATE TRANSCRIPT.  HE THEN MOVED THE STATE
SUPREME COURT FOR AN ORDER REQUIRING THAT HE BE SUPPLIED A TRANSCRIPT
FREE OF CHARGE, AND WHEN THAT MOTION WAS DENIED, SOUGHT FEDERAL HABEAS
CORPUS.  THE DISTRICT JUDGE DENIED THE APPLICATION FOR A WRIT ON THE
GROUNDS DAUGHARTY HAD FAILED TO EXHAUST STATE REMEDIES.  DESPITE THE
FACT THAT DAUGHARTY NEVER EVEN MENTIONED THE FOURTEENTH AMENDMENT, MUCH
LESS THE EQUAL PROTECTION CLAUSE, THE COURT OF APPEALS HELD THAT HIS
MOTION IN THE STATE SUPREME COURT SATISFIED THE EXHAUSTION
REQUIREMENT. 

"IN MOVING THE OREGON SUPREME COURT FOR AN ORDER REQUIRING THAT A
TRANSCRIPT BE SUPPLIED WITHOUT EXPENSE TO HIM, DAUGHARTY CALLED
ATTENTION TO HIS INABILITY TO PAY FOR SUCH A RECORD.  THIS PROVIDED
THAT COURT WITH ALL OF THE FACTS NECESSARY TO GIVE APPLICATION TO THE
CONSTITUTIONAL PRINCIPLE UPON WHICH APPELLANT RELIES . . . .
(EXHAUSTION OF STATE REMEDIES IS NOT TO BE DENIED BECAUSE THE
FOURTEENTH AMENDMENT WAS NOT SPECIFICALLY MENTIONED."  ID.,AT 758. 

ANALOGOUSLY, THE COURT OF APPEALS SAID IN THE INSTANT CASE: 

"PETITIONER DID NOT PRESENT THE CONSTITUTIONAL QUESTION TO THE
MASSACHUSETTS COURT IN THE PARTICULAR FOCUS IN WHICH THIS OPINION IS
DIRECTED.  WE SUGGESTED IT WHEN THE CASE REACHED US, AND INVITED THE
COMMONWEALTH TO FILE A SUPPLEMENTAL BRIEF.  NOT UNNATURALLY ITS FIRST
CONTENTION WAS TO ASSERT THAT PETITIONER HAD NOT EXHAUSTED HIS STATE
REMEDY, CITING NEEDLE V. SCAFATI, 1 CIR., 1969, 412 F.2D 761, CERT.
DENIED 396 U.S. 861, . . . AND SUBILOSKY V. COMMONWEALTH,1 CIR., 1969,
412 F.2D 691.  WE FIND THESE CASES INAPPOSITE.  THIS OPINION CONSIDERS
NEITHER FACTS, AS IN NEEDLE, NOR PRECEDENT, AS IN SUBILOSKY, THAT WAS
NOT AVAILABLE TO THE MASSACHUSETTS COURT WHEN PETITIONER WAS BEFORE IT.
PETITIONER PRESENTED THE COURT WITH 'AN OPPORTUNITY TO APPLY
CONTROLLING LEGAL PRINCIPLES TO THE FACTS BEARING UPON (HIS)
CONSTITUTIONAL CLAIM.'  UNITED STATES EX REL. KEMP V. PATE, 7 CIR.,
1966, 359 F.2D 749, 751; CF. WILBUR V. MAINE, 1 CIR., 1970, 421 F.2D
1327.  THAT IS ENOUGH TO SATISFY THE REQUIREMENTS OF THE EXHAUSTION . .
. DOCTRINE.  SULLIVAN V. SCAFATI, 1 CIR., 1970, 428 F.2D 1023, 1024 N.
1.  WE THEREFORE TURN TO THE MERITS."  434 F.2D 673, 674. 

JOHN J. IRWIN, JR., ASSISTANT ATTORNEY GENERAL OF MASSACHUSETTS,
ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE ROBERT H.
QUINN, ATTORNEY GENERAL, RUTH I. ABRAMS AND CHARLES E. CHASE, ASSISTANT
ATTORNEYS GENERAL, AND GARRETT H. BYRNE. 

JAMES J. TWOHIG, BY APPOINTMENT OF THE COURT, 402 U.S. 993, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :

















TOWNSEND V. SWANK, 404 U.S. 282 


       TOWNSEND ET AL. V. SWANK, DIRECTOR, DEPARTMENT OF PUBLIC AID

           OF ILLINOIS, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

        NO. 70-5021.  ARGUED NOVEMBER 8, 1971-- DECIDED DECEMBER
20,

           1971  /1/ 


THIS CLASS ACTION CHALLENGES ON EQUAL PROTECTION AND SUPREMACY
GROUNDS AN ILLINOIS STATUTE AND REGULATION UNDER WHICH NEEDED DEPENDENT
CHILDREN 18 THROUGH 20 YEARS OLD ATTENDING HIGH SCHOOL OR VOCATIONAL
TRAINING SCHOOL QUALIFY FOR BENEFITS UNDER THE FEDERALLY ASSISTED AID
TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM, BUT SUCH CHILDREN
ATTENDING A COLLEGE OR UNIVERSITY DO NOT QUALIFY.  A THREE-JUDGE
DISTRICT COURT UPHELD THE ILLINOIS SCHEME.  HELD:  UNDER SEC.
402(A)(10) OF THE SOCIAL SECURITY ACT, A STATE PARTICIPATING PLAN UNDER
THE AFDC PROGRAM MUST PROVIDE THAT AID TO FAMILIES WITH DEPENDENT
CHILDREN SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO "ALL
ELIGIBLE" INDIVIDUALS.  SINCE SEC. 406(A)(2)(B) OF THE ACT MAKES
DEPENDENT 18-20-YEAR-OLDS ELIGIBLE FOR BENEFITS WHETHER ATTENDING A
COLLEGE OR UNIVERSITY OR A VOCATIONAL OR TECHNICAL TRAINING COURSE, AND
CONGRESS HAS AUTHORIZED NO LIMITATION OF ELIGIBILITY STANDARDS WITHIN
THE AGE GROUP, THE ILLINOIS PROGRAM CONFLICTS WITH THAT FEDERAL
STATUTORY PROVISION AND VIOLATES THE SUPREMACY CLAUSE.  PP. 285-292. 

314 F.SUPP.  1082, REVERSED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  BURGER, C.J.,
FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 292. 

MR.JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, TWO COLLEGE STUDENTS AND THEIR MOTHERS, BROUGHT THIS CLASS
ACTION IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
ALLEGING THAT SEC. 4-1.1 OF THE ILLINOIS PUBLIC AID CODE, ILL. REV.
STAT., C. 23, SEC. 4-1.1 (1967) AND THE IMPLEMENTING ILLINOIS PUBLIC
AID REGULATION 150 VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, AND, BECAUSE INCONSISTENT WITH SEC. 406(A)(2)(B)
OF THE SOCIAL SECURITY ACT, 42 U.S.C. 606(A)(2)(B), ALSO VIOLATE THE
SUPREMACY CLAUSE OF THE CONSTITUTION.  /1A/  UNDER THE ILLINOIS STATUTE
AND REGULATION NEEDY DEPENDENT CHILDREN 18 THROUGH 20 YEARS OF AGE WHO
ATTEND HIGH SCHOOL OR VOCATIONAL TRAINING SCHOOL ARE ELIGIBLE FOR
BENEFITS UNDER THE FEDERALLY ASSISTED AID TO FAMILIES WITH DEPENDENT
CHILDREN (AFDC) PROGRAM, 42 U.S.C. 601 ET SEQ., BUT SUCH CHILDREN WHO
ATTEND A COLLEGE OR UNIVERSITY ARE NOT ELIGIBLE.  /2/  SECTION
406(A)(2) OF THE SOCIAL SECURITY ACT, ON THE OTHER HAND, DEFINES
"DEPENDENT CHILD" TO INCLUDE A CHILD " . . . (B) UNDER THE AGE OF
TWENTY-ONE AND (AS DETERMINED BY THE STATE IN ACCORDANCE WITH STANDARDS
PRESCRIBED BY THE SECRETARY) A STUDENT REGULARLY ATTENDING A SCHOOL,
COLLEGE, OR UNIVERSITY, OR REGULARLY ATTENDING A COURSE OF VOCATIONAL
OR TECHNICAL TRAINING DESIGNED TO FIT HIM FOR GAINFUL EMPLOYMENT."  A
THREE-JUDGE DISTRICT COURT HELD THAT NEITHER CONSTITUTIONAL CONTENTION
HAD MERIT AND SUSTAINED THE VALIDITY OF THE ILLINOIS STATUTE AND
REGULATION.  314 F.SUPP.  1082 (1970).  WE NOTED PROBABLE JURISDICTION,
401 U.S. 906 (1971).  WE HOLD THAT THE ILLINOIS STATUTE AND REGULATION
CONFLICT WITH SEC. 406(A)(2)(B) AND FOR THAT REASON ARE INVALID UNDER
THE SUPREMACY CLAUSE.  WE THEREFORE REVERSE ON THAT GROUND WITHOUT
REACHING THE EQUAL PROTECTION ISSUE. 

I 

PARTICIPATORY PLANS SUBMITTED UNDER THE AFDC PROGRAM FOR THE APPROVAL
OF THE SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
(HEW) MUST PROVIDE "THAT AID TO FAMILIES WITH DEPENDENT CHILDREN SHALL
BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS." 
IN KING V. SMITH, 392 U.S. 309 (1968), WE CONSIDERED WHETHER A STATE
PARTICIPATING IN AN AFDC PROGRAM MAY, CONSISTENTLY WITH THE SUPREMACY
CLAUSE, ADOPT ELIGIBILITY STANDARDS THAT EXCLUDE FROM BENEFITS NEEDY
DEPENDENT CHILDREN ELIGIBLE FOR BENEFITS UNDER APPLICABLE FEDERAL
STATUTORY STANDARDS.  THERE WAS BEFORE US IN THAT CASE A REGULATION OF
THE ALABAMA DEPARTMENT OF PENSIONS AND SECURITY THAT TREATED A MAN WHO
COHABITED WITH THE MOTHER OF NEEDY DEPENDENT CHILDREN IN OR OUTSIDE THE
HOME AS A NONABSENT "PARENT" WITHIN THE FEDERAL STATUTE.  SINCE AID CAN
BE GRANTED UNDER SEC. 406(A) OF THE FEDERAL ACT ONLY IF A "PARENT" OF
THE NEEDY CHILD IS CONTINUALLY ABSENT FROM THE HOME, ALABAMA'S
REGULATION RESULTED IN THE INELIGIBILITY OF THE CHILDREN FOR BENEFITS. 
WE HELD THAT THE ALABAMA REGULATION DEFINED "PARENT" IN A MANNER
INCONSISTENT WITH SEC. 406(A) OF THE SOCIAL SECURITY ACT AND THEREFORE
THAT IN "DENYING AFDC ASSISTANCE TO (CHILDREN) ON THE BASIS OF THIS
INVALID REGULATION, ALABAMA HAS BREACHED ITS FEDERALLY IMPOSED
OBLIGATION TO FURNISH 'AID TO FAMILIES WITH DEPENDENT CHILDREN . . .
WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS . . . .'"  392
U.S.,AT 333. 

THUS, KING V. SMITH ESTABLISHED THAT, AT LEAST IN THE ABSENCE OF
CONGRESSIONAL AUTHORIZATION FOR THE EXCLUSION CLEARLY EVIDENCED FROM
THE SOCIAL SECURITY ACT OR ITS LEGISLATIVE HISTORY, A STATE ELIGIBILITY
STANDARD THAT EXCLUDES PERSONS ELIGIBLE FOR ASSISTANCE UNDER FEDERAL
AFDC STANDARDS VIOLATES THE SOCIAL SECURITY ACT AND IS THEREFORE
INVALID UNDER THE SUPREMACY CLAUSE.  WE RECOGNIZE THAT HEW REGULATIONS
SEEM TO IMPLY THAT STATES MAY TO SOME EXTENT VARY ELIGIBILITY
REQUIREMENTS FROM FEDERAL STANDARDS.  /3/  HOWEVER, THE PRINCIPLE THAT
ACCORDS SUBSTANTIAL ENTRUSTED WITH ITS ADMINISTRATION IS INAPPLICABLE
INSOFAR AS THOSE REGULATIONS ARE INCONSISTENT WITH THE REQUIREMENT OF
SEC. 402(A)(10) THAT AID BE FURNISHED "TO ALL ELIGIBLE INDIVIDUALS." 
KING V. SMITH, 392 U.S.,AT 333 N. 34. 

        II 

IT IS NEXT ARGUED THAT IN THE CASE OF 18-20-YEAR-OLD NEEDY DEPENDENT
CHILDREN, CONGRESS AUTHORIZED THE STATES TO VARY ELIGIBILITY
REQUIREMENTS FROM FEDERAL STANDARDS.  IN OTHER WORDS, IT IS CONTENDED
THAT CONGRESS AUTHORIZED THE STATES TO DISCRIMINATE BETWEEN THESE NEEDY
DEPENDENT CHILDREN SOLELY UPON THE BASIS OF THE TYPE OF SCHOOL
ATTENDED.  OUR EXAMINATION OF THE LEGISLATIVE HISTORY HAS UNCOVERED NO
EVIDENCE THAT CONGRESS GRANTED THE ASSERTED AUTHORITY.  ON THE
CONTRARY, WE ARE PERSUADED THAT THE HISTORY SUPPORTS THE CONCLUSION
THAT CONGRESS MEANT TO CONTINUE FINANCIAL ASSISTANCE FOR AFDC PROGRAMS
FOR THE AGE GROUP ONLY IN STATES THAT CONFORMED THEIR ELIGIBILITY
REQUIREMENTS TO THE FEDERAL ELIGIBILITY STANDARDS. 

BENEFITS WHETHER ATTENDING A COLLEGE OR UNIVERSITY, OR ATTENDING A
COURSE OF VOCATIONAL OR TECHNICAL TRAINING.  THE ONLY DISCRETION
WRITTEN INTO THE STATUTE PERMITS A STATE TO DETERMINE, "IN ACCORDANCE
WITH STANDARDS PRESCRIBED BY THE SECRETARY," WHETHER A PARTICULAR
STUDENT, WITHOUT REGARD TO WHETHER HIS ATTENDANCE IS AT A COLLEGE OR
VOCATIONAL SCHOOL, IS A STUDENT "REGULARLY ATTENDING" A BONA FIDE
SCHOOL.  /4/  THIS PARTICULARIZATION OF THE AREA OF STATE AUTHORITY IS
ITSELF COGENT EVIDENCE THAT CONGRESS DID NOT ALSO AUTHORIZE THE STATES
TO LIMIT ELIGIBILITY TO STUDENTS ATTENDING VOCATIONAL SCHOOL. 

NOR IS THERE ANYTHING IN THE LEGISLATIVE HISTORY OF THE EVOLUTION OF
SEC. 406(A)(2)(B) TO SUPPORT APPELLEES' ARGUMENT.  /5/  THAT HISTORY
DOES SHOW THAT WHENEVER CONGRESS EXTENDED AFDC ELIGIBILITY TO OLDER
CHILDREN-- FROM THOSE UNDER 16 TO THOSE 16-17, AND FINALLY TO THOSE 18
20-- CONGRESS LEFT TO THE INDIVIDUAL STATES THE DECISION WHETHER TO
PARTICIPATE IN THE PROGRAM FOR THE NEW AGE GROUP.  THERE IS NO
LEGISLATIVE HISTORY, HOWEVER, TO SUPPORT THE PROPOSITION THAT CONGRESS
ALSO GAVE TO THE INDIVIDUAL STATES AN OPTION TO TAILOR ELIGIBILITY
STANDARDS WITHIN THE AGE GROUP, AND THUS EXCLUDE CHILDREN ELIGIBLE
UNDER THE FEDERAL STANDARDS. 

THE ORIGINAL SOCIAL SECURITY ACT PROVIDED AID ONLY TO DEPENDENT
CHILDREN UNDER THE AGE OF 16.  49 STAT. 629.  A 1939 AMENDMENT EXTENDED
AID TO CHILDREN AGE 16 17 "REGULARLY ATTENDING SCHOOL," 53 STAT. 1380. 
THE STATES WERE NOT, HOWEVER, REQUIRED TO EXTEND THEIR AFDC PROGRAMS TO
THE 16-17-YEAR AGE GROUP.  SEE H.R. REP. NO. 728, 76TH CONG., 1ST
SESS., 28-29 (1939).  BUT IF A STATE CHOSE TO DO SO, NOT A WORD IN THE
LEGISLATIVE HISTORY SUGGESTS THAT IT MIGHT LIMIT ITS CHOICE TO STUDENTS
ATTENDING SCHOOLS SELECTED BY THE STATE, AND EXCLUDE CHILDREN AGE GROUP
ATTENDING OTHER SCHOOLS. 

IN 1956 CONGRESS DELETED THE SCHOOL ATTENDANCE REQUIREMENT AND
PROVIDED FOR BENEFITS FOR ALL DEPENDENT CHILDREN OF THE 16-17 AGE
GROUP.  70 STAT. 850.  THE SENATE REPORT ON THIS BILL STATED THAT THE
BILL WOULD "PERMIT FEDERAL SHARING IN ASSISTANCE TO SUCH CHILDREN" AND
ALSO THAT THE BILL WOULD "MAKE SOME ADDITIONAL NEEDY CHILDREN ELIGIBLE
FOR AID."  S. REP. NO. 2133, 84TH CONG., 2D SESS., 30 (1956).  THE
CONFERENCE REPORT STATED THAT THE BILL WOULD "ELIMINATE THE REQUIREMENT
THAT A NEEDY CHILD BETWEEN 16 AND 18 YEARS OF AGE MUST BE REGULARLY
ATTENDING SCHOOL IN ORDER TO BE ELIGIBLE FOR AID TO DEPENDENT
CHILDREN."  H.R. CONF. REP. NO. 2936, 84TH CONG., 2D SESS., 42 (1956). 
SIGNIFICANTLY, NOTHING IN THE LEGISLATIVE HISTORY OF THAT CHANGE
INDICATES THAT THE STATES WERE AT LIBERTY TO CONTINUE TO LIMIT
ELIGIBILITY TO 16-17-YEAR-OLDS ATTENDING SCHOOL.  /6/ 

THE FIRST PROVISION FOR THE AGE GROUP 18-20 CAME IN 1964 WHEN
BENEFITS WERE AUTHORIZED BUT LIMITED TO CHILDREN ATTENDING HIGH SCHOOL
OR VOCATIONAL SCHOOL.  78 STAT.1042.  AS IN THE CASE OF THE 1939
AMENDMENTS EXTENDING AID TO CHILDREN 16-17 REGULARLY ATTENDING SCHOOL,
THE STATES HAD THE CHOICE WHETHER TO PARTICIPATE IN THIS NEW PROGRAM;
S. REP. NO. 1517, 88TH CONG., 2D SESS., 2 (1964), EXPRESSLY STATED THAT
"EXTENSION OF THE PROGRAM IN THIS MANNER WOULD BE OPTIONAL WITH THE
STATES."  WHEN IN 1965 CONGRESS AMENDED SEC. 406(A)(2)(B) IN THE FORM
NOW BEFORE US NOTHING WAS SAID TO INDICATE THAT STATES THAT HAD ADOPTED
THE 1964 PROGRAM LIMITED TO CHILDREN ATTENDING VOCATIONAL SCHOOLS WERE
FREE TO CONTINUE THAT LIMITED PROGRAM AND NOT EXTEND IT TO CHILDREN 18
20 ATTENDING A COLLEGE OR UNIVERSITY.  THE RELEVANT SENATE REPORT, S.
REP. NO. 404, PT. 1, 89TH CONG., 1ST SESS., 147 (1965), IMPLIES THE
CONTRARY, STATING: 

"UNDER EXISTING LAW STATES, AT THEIR OPTION, MAY CONTINUE

 PAYMENTS TO NEEDY CHILDREN UP TO AGE 21 IN THE AID TO FAMILIES

  WITH DEPENDENT CHILDREN PROGRAM, PROVIDING THEY ARE 'REGULARLY

  ATTENDING A HIGH SCHOOL IN PURSUANCE OF A COURSE OF STUDY LEADING

  TO A HIGH SCHOOL DIPLOMA OR ITS EQUIVALENT, OR REGULARLY

  ATTENDING A COURSE OF VOCATIONAL OR TECHNICAL TRAINING DESIGNED

  TO FIT HIM FOR GAINFUL EMPLOYMENT.'  THE COMMITTEE ADDED AN

  AMENDMENT EXTENDING THIS PROVISION SO AS TO INCLUDE NEEDY

  CHILDREN UNDER 21 WHO ARE REGULARLY 'ATTENDING A SCHOOL, COLLEGE,

  OR UNIVERSITY.'" 

UNIVERSITY.'" 

MOREOVER, THE REPORT NOTES THAT ONE OF THE PURPOSES OF THE EXTENSION
WAS TO BRING AFDC IN LINE WITH THE OLD AGE SURVIVORS AND DISABILITY
INSURANCE PROVISIONS OF THE SOCIAL SECURITY ACT, 42 U.S.C. 401 ET SEQ.
UNDER THAT PROGRAM AN INSURED'S CHILD IS ELIGIBLE FOR INSURANCE
BENEFITS IF HE IS A FULL-TIME STUDENT UNDER 22 YEARS OF AGE, AND UNDER
SEC. 402(D)(7) THIS INCLUDES A STUDENT ATTENDING A COLLEGE OR
UNIVERSITY.  S. REP. NO. 404 ATTRIBUTED TO THE PROVISION UNDER BOTH
PROGRAMS A PURPOSE TO "ASSURE, AS FAR AS POSSIBLE, THAT CHILDREN WILL
NOT BE PREVENTED FROM GOING TO SCHOOL OR COLLEGE BECAUSE THEY ARE
DEPRIVED OF PARENTAL SUPPORT."  S. REP. NO. 404, SUPRA, AT 147.  THIS
THEME CARRIED THROUGH THE CONFERENCE COMMITTEE REPORT: "THIS AMENDMENT
WOULD BROADEN THE TYPE OF SCHOOLS THAT CHILDREN OVER THE AGE OF 18 AND
UNDER THE AGE OF 21 MAY ATTEND AND RECEIVE AID TO FAMILIES WITH
DEPENDENT CHILDREN PAYMENTS IN WHICH THE FEDERAL GOVERNMENT WILL
PARTICIPATE."  H.R. CONF. REP. NO. 682, 89TH CONG., 1ST SESS., 69
(1965).  /7/ 

IN SUM, WHEN APPLICATION OF AFDC WAS EXTENDED TO A NEW AGE GROUP--
IN 1939 TO 16-17-YEAR-OLDS AND IN 1964 TO 18-20-YEAR OLDS-- CONGRESS
TOOK CARE TO MAKE EXPLICIT THAT THE DECISION WHETHER TO PARTICIPATE WAS
LEFT TO THE INDIVIDUAL STATES.  HOWEVER, WHEN APPLICATION OF AFDC
WITHIN THE AGE GROUP WAS ENLARGED-- IN 1956 TO ALL 16-17-YEAR-OLDS AND
IN 1965 TO 18-20-YEAR-OLDS ATTENDING COLLEGE OR A UNIVERSITY-- THE
EVIDENCE, IF NOT AS CLEAR, IS THAT FINANCIAL SUPPORT OF AFDC PROGRAMS
FOR THE AGE GROUP WAS TO CONTINUE ONLY IN STATES THAT CONFORMED THEIR
ELIGIBILITY REQUIREMENTS TO THE NEW FEDERAL STANDARDS.  ANY DOUBT MUST
BE RESOLVED IN FAVOR OF THIS CONSTRUCTION TO AVOID THE NECESSITY OF
PASSING UPON THE EQUAL PROTECTION ISSUE.  "CONGRESS IS WITHOUT POWER TO
ENLIST STATE COOPERATION IN A JOINT FEDERAL-STATE PROGRAM BY
LEGISLATION WHICH AUTHORIZED THE STATES TO VIOLATE THE EQUAL PROTECTION
CLAUSE."  SHAPIRO V. THOMPSON, 394 U.S. 618, 641 (1969). 
NOTWITHSTANDING THE VIEW OF THE MAJORITY OF THE DISTRICT COURT, 314
F.SUPP.,AT 1088-1089, WE THINK THERE IS A SERIOUS QUESTION WHETHER THE
ILLINOIS CLASSIFICATION CAN WITHSTAND THE STRICTURES OF THE EQUAL
PROTECTION CLAUSE.  THE MAJORITY JUSTIFIED THE CLASSIFICATION AS
DESIGNED TO ATTAIN THE TWIN GOALS OF AIDING NEEDY CHILDREN TO BECOME
EMPLOYABLE AND SELF-SUFFICIENT, AND OF INSURING FISCAL INTEGRITY OF THE
STATE'S WELFARE PROGRAM.  WE DOUBT THE RATIONALITY OF THE
CLASSIFICATION AS A MEANS OF FURTHERING THE GOAL OF AIDING NEEDY
CHILDREN TO BECOME EMPLOYABLE AND SELF-SUFFICIENT; WE ARE NOT TOLD WHAT
BASIS IN PRACTICAL EXPERIENCE SUPPORTS THE PROPOSITION THAT CHILDREN
WITH A VOCATION TRAINING ARE MORE READILY EMPLOYABLE THAN CHILDREN WITH
A COLLEGE EDUCATION.  AND A STATE'S INTEREST IN PRESERVING THE FISCAL
INTEGRITY OF ITS WELFARE PROGRAM BY ECONOMICALLY ALLOCATING LIMITED
AFDC RESOURCES MAY NOT BE PROTECTED BY THE DEVICE OF ADOPTING
ELIGIBILITY REQUIREMENTS RESTRICTING THE CLASS OF CHILDREN MADE
ELIGIBLE BY FEDERAL STANDARDS.  THAT INTEREST MAY BE PROTECTED BY THE
STATE'S "UNDISPUTED POWER TO SET THE LEVEL OF BENEFITS . . . "  KING V.
SMITH, 392 U.S.,AT 334.  SEE DANDRIDGE V. WILLIAMS, 397 U.S. 471
(1970).  /8/

              REVERSED. 

/1/  TOGETHER WITH NO. 70-5032, ALEXANDER ET AL. V. SWANK, DIRECTOR,
DEPARTMENT OF PUBLIC AID OF ILLINOIS, ET AL., ALSO ON APPEAL FROM THE
SAME COURT. 

/1A/  SECTION 4-1.1 OF THE ILLINOIS PUBLIC AID CODE, ILL. REV.
STAT., C. 23, SEC. 4-1.1 (1967), PROVIDES: 

"CHILD AGE ELIGIBILITY.  THE CHILD OR CHILDREN MUST BE UNDER AGE 18,
OR AGE 18 OR OVER BUT UNDER AGE 21 IF IN REGULAR ATTENDANCE IN HIGH
SCHOOL OR IN A VOCATIONAL OR TECHNICAL TRAINING SCHOOL.  'REGULAR
ATTENDANCE,' AS USED IN THIS SECTION, MEANS ATTENDANCE FULL TIME DURING
THE REGULAR TERMS OF SUCH SCHOOLS, OR ATTENDANCE PART TIME DURING SUCH
REGULAR TERMS AS MAY BE AUTHORIZED BY RULE OF THE ILLINOIS DEPARTMENT
FOR THE PURPOSE OF PERMITTING THE CHILD TO ENGAGE IN EMPLOYMENT WHICH
SUPPLEMENTS HIS CLASSROOM INSTRUCTION OR WHICH OTHERWISE ENHANCES HIS
DEVELOPMENT TOWARD A SELF-SUPPORTING STATUS."     ILLINOIS DEPARTMENT
OF PUBLIC AID REGULATION 150 PROVIDES: "AGE REQUIREMENTS: 

"A.D.C. DEPENDENT CHILDREN UNDER 18 YEARS OF AGE, UNLESS 18 THROUGH
20 YEARS OF AGE AND IN REGULAR ATTENDANCE IN HIGH SCHOOL OR VOCATIONAL
OR TECHNICAL TRAINING SCHOOL.  (THIS DOES NOT INCLUDE 18 THROUGH 20
YEAR OLD CHILDREN IN COLLEGE.)" 

/2/  APPELLANT LOVERTA ALEXANDER LIVES WITH HER SON JEROME IN
CHICAGO.  JEROME REACHED HIS 18TH BIRTHDAY IN AUGUST 1968 AND ENROLLED
IN JUNIOR COLLEGE ABOUT A MONTH LATER.  IN EARLY OCTOBER A COOK COUNTY
WELFARE OFFICER NOTIFIED MRS. ALEXANDER THAT THE AFDC BENEFITS RECEIVED
BY HER SINCE 1963 WOULD BE TERMINATED AS OF NOVEMBER 1, 1968.  THOUGH
MRS. ALEXANDER WAS ABLE TO OBTAIN GENERAL ASSISTANCE BENEFITS FROM THE
STATE, THE TERMINATION OF AFDC PAYMENTS RESULTED IN A LOSS OF $23.52
PER MONTH IN THE FAMILY'S INCOME.  THE ONLY REASON GIVEN BY THE STATE
FOR THE TERMINATION WAS THAT JEROME HAD REACHED HIS 18TH BIRTHDAY AND
WAS NOT ATTENDING HIGH SCHOOL OR VOCATIONAL SCHOOL. 

APPELLANT GEORGIA TOWNSEND IS THE SOLE SUPPORT OF OMEGA MINOR, HER
ONLY CHILD.  MRS. TOWNSEND, WHO IS DISABLED, RECEIVED AFDC BENEFITS FOR
HERSELF AND HER DAUGHTER FROM 1953 THROUGH 1960.  THEREAFTER SHE
RECEIVED AN AFDC GRANT FOR OMEGA, AND BENEFITS FOR HERSELF UNDER THE
AID TO THE DISABLED PROVISIONS OF THE SOCIAL SECURITY ACT, 42 U.S.C.
1351 ET SEQ. IN SEPTEMBER 1966, OMEGA ENROLLED IN JUNIOR COLLEGE.  TWO
MONTHS LATER A COOK COUNTY WELFARE OFFICER NOTIFIED MRS. TOWNSEND THAT
OMEGA'S MONTHLY AFDC PAYMENT WOULD BE CANCELED AS OF JANUARY 1967. 
WHILE MRS. TOWNSEND'S DISABILITY PAYMENTS WERE INCREASED TO MEET HER
OWN NEEDS, THE LOSS OF AFDC BENEFITS RESULTED IN A REDUCTION OF $47.94
PER MONTH IN FAMILY INCOME.  AGAIN THE ONLY REASON GIVEN WAS THE
FAILURE TO COMPLY WITH THE ILLINOIS STATUTE AND REGULATION. 

THIS ACTION WAS BROUGHT BY RMS.  ALEXANDER UNDER THE FEDERAL CIVIL
RIGHTS ACT, 42 U.S.C. 1983, SEEKING DECLARATORY AND INJUNCTIVE RELIEF
AGAINST THE TERMINATION OF HER AFDC BENEFITS.  MRS. TOWNSEND INTERVENED
AS A PLAINTIFF ON BEHALF OF HERSELF AND HER DAUGHTER OMEGA, AND AS A
MEMBER OF THE CLASS DESCRIBED IN MRS. ALEXANDER'S COMPLAINT.  THE THREE
JUDGE COURT, CONVENED PURSUANT TO 28 U.S. 2281, 2284, HELD THAT
APPELLANTS' COMPLAINT STATED A CAUSE OF ACTION UNDER THE CIVIL RIGHTS
ACT, AND WAS A PROPER CLASS ACTION UNDER FED. RULE CIV. PROC. 23. 
THOSE HOLDINGS ARE NOT CHALLENGED IN THIS COURT. 

/3/  SEE, E.G., HEW'S SO-CALLED "CONDITION X" EMBODIED IN A
REGULATION FOUND IN 45 CFR 233.10(A)(1)(II), 36 FED.REG.  3866: 

"THE GROUPS SELECTED FOR INCLUSION IN THE PLAN AND THE ELIGIBILITY
CONDITIONS IMPOSED MUST NOT EXCLUDE INDIVIDUALS OR GROUPS ON AN
ARBITRARY OR UNREASONABLE BASIS, AND MUST NOT RESULT IN INEQUITABLE
TREATMENT OF INDIVIDUALS OR GROUPS IN THE LIGHT OF THE PROVISIONS AND
PURPOSES OF THE PUBLIC ASSISTANCE TITLES OF THE SOCIAL SECURITY ACT." 
SEE ALSO HEW.  HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION, PT. IV,
4210(1962); NOTE, WELFARE'S "CONDITION X," 76 YALEL.J. 1222 (1967). 

/4/  SEE HEW HANDBOOK, SUPRA, N. 3, PT. IV, "GREEN SHEETS," G-3220
(1965); CF. H.R. CONF. REP. NO. 682, 89TH CONG., 1ST SESS., 69-70
(1965). 

/5/  THE UNITED STATES, AS AMICUS CURIAE, CITES SECTIONS OF THE
SOCIAL SECURITY ACT AS SUPPORTING ILLINOIS' CONTENTION THAT ITS COLLEGE
VOCATIONAL SCHOOL DISTINCTION IS AUTHORIZED.  FOR EXAMPLE, THE UNITED
STATES REFERS TO SEC. 406(A) WHICH ORIGINAL DEFINED "DEPENDENT CHILD"
TO INCLUDE A CHILD LIVING WITH HIS "FATHER, MOTHER, GRANDFATHER,
GRANDMOTHER, BROTHER, SISTER, STEPFATHER, STEPMOTHER, STEPBROTHER,
STEPSISTER, UNCLE, OR AUNT."  49 STAT. 629.  A STATEMENT BY SENATOR
HARRISON DURING DEBATE ON THIS PROVISION, 79 CONG.REC.  9269, IS SAID
TO ESTABLISH THAT THE STATES WERE NOT REQUIRED TO EXTEND ASSISTANCE FOR
EVERY RELATIVE LISTED IN THE SECTION.  SECTION 407(B) IS ALSO CITED AS
EXPLICITLY RESERVING TO THE STATES A CHOICE WHETHER TO PARTICIPATE IN
CERTAIN PARTS OF THE AFDC PROGRAM.  BUT THESE ARE EXPRESS
AUTHORIZATIONS TO DEPART FROM FEDERAL ELIGIBILITY STANDARDS; THERE IS
NO EXPRESS AUTHORIZATION IN THIS CASE. 

/6/  IT APPEARS THAT SOME STATES AND THE DISTRICT OF COLUMBIA
CONTINUED TO LIMIT PAYMENTS TO 16-17-YEAR-OLDS ATTENDING SCHOOL AND TO
HANDICAPPED CHILDREN PREVENTED FROM DOING SO.  HEW PUBLIC ASSISTANCE
REPORT NO. 50, CHARACTERISTICS OF STATE PUBLIC ASSISTANCE PLANS UNDER
THE SOCIAL SECURITY ACT (1964 ED.). 

/7/  HEW ITSELF STATES:  "WITHIN THE AGE LIMIT SET BY THE STATE,
THERE SHOULD BE A CHOICE OF ATTENDING A SCHOOL, COLLEGE, OR UNIVERSITY
OR TAKING A COURSE OF VOCATIONAL OR TECHNICAL TRAINING FOR GAINFUL
EMPLOYMENT."  HEW, HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION, SUPRA,
N. 3, PT. IV, "GREEN SHEETS," G-3220 (1965). 

/8/  THE CONCURRING OPINION BELOW ACKNOWLEDGED THAT THE REASONABLE
BASIS FOR THE CLASSIFICATION WOULD NOT BE APPARENT IF INCENTIVES TO
LEARN WHITE- AND BLUE-COLLAR TRADES AND THE SUPPLY AND DEMAND FOR
PROFESSIONAL AND LABOR POSITIONS WERE THE SAME.  THE OPINION CONCLUDED,
HOWEVER, THAT THE CLASSIFICATION COULD BE REASONABLE IN THE CONTEXT OF
A LABOR MARKET IN WHICH "THE SKILLS OF MANUAL LABORERS ARE IN SHORT
SUPPLY," BECAUSE IN SUCH A MARKET, "AS A MEANS OF UTILIZING LIMITED
STATE FUNDS IN AN EFFORT TO CHANNEL PERSONS INTO THOSE EMPLOYMENT
POSITIONS FOR WHICH THE SOCIETY HAS GREAT NEED, THE STATUTORY
DISCRIMINATION BETWEEN COLLEGE STUDENTS AND POST-HIGH SCHOOL VOCATION
TRAINEES IS NOT PURELY ARBITRARY OR INVIDIOUS, BUT RATHER, A RATIONAL
APPROACH DESIGNED TO CORRECT A PERCEIVED PROBLEM."  314 F.SUPP.,AT
1091.  APART FROM THE FACT THAT NOTHING APPEARS ABOUT THE NATURE OF THE
MARKET, A CLASSIFICATION THAT CHANNELS ONE CLASS OF PEOPLE, POOR
PEOPLE, INTO A PARTICULAR CLASS OF LOW-PAYING, LOW-STATUS JOBS WOULD
PLAINLY RAISE SUBSTANTIAL QUESTIONS UNDER THE EQUAL PROTECTION CLAUSE. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT REACHED BY THE COURT, BUT ADD THIS BRIEF
COMMENT.  IN DEALING WITH THESE CASES-- AND THE OTHER AFDC CASES ON THE
COURT'S DOCKET-- IT SEEMS APPROPRIATE TO KEEP CLEARLY IN MIND THAT
TITLE IV OF THE SOCIAL SECURITY ACT GOVERNS THE DISPENSATION OF FEDERAL
FUNDS AND THAT IT DOES NO MORE THAN THAT.  TRUE, CONGRESS HAS USED THE
"POWER OF THE PURSE" TO FORCE THE STATES TO ADHERE TO ITS WISHES TO A
CERTAIN EXTENT; BUT ADHERENCE TO THE PROVISIONS OF TITLE IV IS IN NO
WAY MANDATORY UPON THE STATES UNDER THE SUPREMACY CLAUSE.  THE
APPROPRIATE INQUIRY IN ANY CASE SHOULD BE, SIMPLY, WHETHER THE STATE
HAS INDEED ADHERED TO THE PROVISIONS AND IS ACCORDINGLY ENTITLED TO
UTILIZE FEDERAL FUNDS IN SUPPORT OF ITS PROGRAM.  CF. ROSADO V. WYMAN,
397 U.S. 397, 420 (1970).  I AGREE THAT THE ANSWER TO THAT INQUIRY HERE
MUST BE IN THE NEGATIVE; I THEREFORE CONCUR IN THE RESULT REACHED BY
THE COURT. 

MICHAEL F. LEFKOW ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANTS
IN NO. 70-5021.  M. JAMES SPITZER, JR., ARGUED THE CAUSE PRO HAC VICE
FOR APPELLANTS IN NO. 70-5032.  WITH HIM ON THE BRIEFS WAS MELVIN B.
GOLDBERG. 

DONALD J. VEVERKA, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED
THE CAUSE FOR APPELLEES IN BOTH CASES.  WITH HIM ON THE BRIEF WERE
WILLIAM J. SCOTT, ATTORNEY GENERAL, AND FRANCIS T. CROWE, BERNARD
GENIS, AND DAVID E. BRADSHAW, ASSISTANT ATTORNEYS GENERAL. 

SOLICITOR GENERAL GRISWOLD AND RICHARD B. STONE FILED A BRIEF FOR
THE UNITED STATES AS AMICUS CURIAE URGING AFFIRMANCE IN BOTH CASES. 
..END :























UNITED STATES V. CAMPOS-SERRANO, 404 U.S. 293 


       UNITED STATES V. CAMPOS-SERRANO

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 SEVENTH CIRCUIT

        NO. 70-46.  ARGUED OCTOBER 14, 1971-- DECIDED DECEMBER 20,

           1971 


POSSESSION OF COUNTERFEIT ALIEN REGISTRATION RECEIPT CARD HELD NOT AN
ACT PUNISHABLE UNDER 18 U.S.C. 1546, WHICH PROHIBITS, INTER ALIA, THE
COUNTERFEITING OR ALTERATION OF, OR THE POSSESSION, USE, OR RECEIPT OF
AN ALREADY COUNTERFEITED OR ALTERED "IMMIGRANT OR NON-IMMIGRANT VISA,
PERMIT, OR OTHER DOCUMENT REQUIRED FOR ENTRY INTO THE UNITED STATES." 
THE PRIMARY PURPOSE OF AN ALIEN REGISTRATION RECEIPT CARD IS FOR
IDENTIFICATION WITHIN THE UNITED STATES, AND ITS MERELY PERMISSIBLE RE
ENTRY FUNCTION UNDER AN IMMIGRATION AND NATURALIZATION SERVICE
REGULATION DOES NOT SUFFICE TO BRING THE CARD WITHIN THE COVERAGE OF
THE STATUTE.  THERE IS A SEPARATE STATUTORY PROVISION SPECIFICALLY
PROTECTING THE INTEGRITY OF ALIEN REGISTRATION RECEIPT CARDS,
INDICATING THAT THE CONGRESS DID NOT INTEND THEM TO BE COVERED BY THE
MORE GENERAL LANGUAGE OF SEC. 1546.  PP. 295-301. 

430 F.2D 173, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED A DISSENTING
OPINION, IN WHICH BURGER, C.J., AND WHITE, J., JOINED, OST, P. 301. 

MR. JUSTICE STEWARD DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT WAS CONVICTED IN A FEDERAL DISTRICT COURT OF
POSSESSION OF A COUNTERFEIT ALIEN REGISTRATION RECEIPT CARD IN
VIOLATION OF 18 U.S.C. 1546, /1/  AND SENTENCED TO A THREE-YEAR PRISON
TERM.  /2/  THE COURT OF APPEALS REVERSED THE CONVICTION, 430 F.2D 173,
HOLDING THAT BECAUSE OF THE CIRCUMSTANCES UNDER WHICH GOVERNMENT AGENTS
HAD ACQUIRED THE CARD FROM THE RESPONDENT, IT HAD BEEN
UNCONSTITUTIONALLY ADMITTED AGAINST HIM AT THE TRIAL UNDER MIRANDA V.
ARIZONA, 384 U.S. 436.  WE GRANTED CERTIORARI.  401 U.S. 936.  WE DO
NOT REACH THE CONSTITUTIONAL ISSUE, HOWEVER, FOR WE HAVE CONCLUDED THAT
THE JUDGMENT OF THE COURT OF APPEALS MUST BE AFFIRMED UPON A DISCRETE
STATUTORY GROUND.  SEE ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297
U.S. 288, 347 (BRANDEIS, J., CONCURRING).  /3/  WE HOLD THAT POSSESSION
OF A COUNTERFEIT ALIEN REGISTRATION RECEIPT CARD IS NOT AN ACT
PUNISHABLE UNDER 18 U.S.C. 1546.  /4/ 

THE STATUTORY PROVISION IN QUESTION PROHIBITS, INTER ALIA, THE
COUNTERFEITING OR ALTERATION OF, OR THE POSSESSION, USE, OR RECEIPT OF
AN ALREADY COUNTERFEITED OR ALTERED "IMMIGRANT OR NONIMMIGRANT VISA,
PERMIT, OR OTHER DOCUMENT REQUIRED FOR ENTRY INTO THE UNITED STATES." 
THIS OFFENSE ORIGINATED IN SECTION 22(A) OF THE IMMIGRATION ACT OF
1924, /5/  WHICH COVERED ONLY AN "IMMIGRATION VISA OR PERMIT."  THE
WORDS "OTHER DOCUMENT REQUIRED FOR ENTRY INTO THE UNITED STATES," WERE
ADDED IN 1952 AS PART OF THE IMMIGRATION AND NATIONALITY ACT.  SEC.
402(A), 66 STAT. 275.  THE LEGISLATIVE HISTORY OF THE 1952 ACT,
HOWEVER, DOES NOT MAKE CLEAR WHICH "OTHER" ENTRY DOCUMENTS THE CONGRESS
HAD IN MIND.  /6/ 

ALIEN REGISTRATION RECEIPT CARDS WERE FIRST ISSUED IN 1941.  THEY
ARE SMALL, SIMPLE CARDS CONTAINING THE ALIEN'S PICTURE AND BASIC
IDENTIFICATION INFORMATION.  /7/  THEY HAVE NO FUNCTION WHATSOEVER IN
FACILITATING THE INITIAL ENTRY INTO THE UNITED STATES.  RATHER, THEY
ARE ISSUED AFTER AN ALIEN HAS ENTERED THE COUNTRY AND TAKEN UP
RESIDENCE.  THEIR ESSENTIAL PURPOSE IS TO EFFECTUATE THE REGISTRATION
REQUIREMENT FOR ALL RESIDENT ALIENS ESTABLISHED IN THE ALIEN
REGISTRATION ACT OF 1940.  /8/ 

UNTIL 1952, ALIEN REGISTRATION RECEIPT CARDS COULD NOT EVEN BE USED
TO FACILITATE RE-ENTRY INTO THE UNITED STATES BY A RESIDENT ALIEN WHO
HAD LEFT TEMPORARILY.  SUCH AN ALIEN WAS REQUIRED TO OBTAIN SPECIAL
DOCUMENTS AUTHORIZING HIS RE-ENTRY INTO THE COUNTRY, SUCH AS A VISA OR
A RE-ENTRY PERMIT.  /9/  HOWEVER, IN 1952-- LESS THAN A MONTH BEFORE
FINAL ENACTMENT OF THE IMMIGRATION AND NATIONALITY ACT-- THE
IMMIGRATION AND NATURALIZATION SERVICE PROMULGATED A REGULATION THAT
ALLOWED RESIDENT ALIENS TO USE THEIR REGISTRATION RECEIPT CARDS FOR RE
ENTRY PURPOSES AS A PERMISSIBLE SUBSTITUTE FOR THE SPECIALIZED
DOCUMENTS.  /10/  THE APPARENT REASON FOR THIS REGULATION WAS TO
MINIMIZE PAPER WORK AND STREAMLINE ADMINISTRATIVE PROCEDURES BY GIVING
RESIDENT ALIENS THE OPTION OF USING FOR RE-ENTRY A DOCUMENT ALREADY
ISSUED AND SERVING OTHER PURPOSES.  THUS, THE REGISTRATION RECEIPT
CARDS MAY NOW BE USED IN LIEU OF A VISA OR A RE-ENTRY PERMIT ON
CONDITION THAT THE HOLDER IS RETURNING TO THE UNITED STATES AFTER A
TEMPORARY ABSENCE OF NOT MORE THAN ONE YEAR.  /11/ 

THE COURT OF APPEALS HELD THAT THE LIMITED, MERELY PERMISSIBLE, RE
ENTRY FUNCTION OF THE ALIEN REGISTRATION RECEIPT CARD IS SUFFICIENT TO
MAKE IT A "DOCUMENT REQUIRED FOR ENTRY INTO THE UNITED STATES" UNDER
SETTLED THAT "PENAL STATUTES ARE TO BE CONSTRUED STRICTLY," FEDERAL
COMMUNICATIONS COMM'N V. AMERICAN BROADCASTING CO., 347 U.S. 284, 296,
AND THAT ONE "IS NOT TO BE SUBJECTED TO A PENALTY UNLESS THE WORDS OF
THE STATUTE PLAINLY IMPOSE IT," KEPPEL V. TIFFIN SAVINGS BANK, 197 U.S.
356, 362.  "(WHEN CHOICE HAS TO BE MADE BETWEEN TWO READINGS OF WHAT
CONDUCT CONGRESS HAS MADE A CRIME, IT IS APPROPRIATE, BEFORE WE CHOOSE
THE HARSHER ALTERNATIVE, TO REQUIRE THAT CONGRESS SHOULD HAVE SPOKEN IN
LANGUAGE THAT IS CLEAR AND DEFINITE."  UNITED STATES V. UNIVERSAL
C.I.T. CREDIT CORP., 344 U.S. 218, 221-222.  IN SEC. 1546, CONGRESS DID
SPEAK IN "CLEAR AND DEFINITE" LANGUAGE.  BUT, TAKEN LITERALLY AND GIVEN
ITS PLAIN AND ORDINARY MEANING, THAT LANGUAGE DOES NOT IMPOSE A
CRIMINAL PENALTY FOR POSSESSION FO A COUNTERFEITED ALIEN REGISTRATION
RECEIPT CARD.  ALIEN REGISTRATION RECEIPT CARDS MAY BE USED FOR RE
ENTRY BY CERTAIN PERSONS INTO THE UNITED STATES.  THEY ARE NOT REQUIRED
FOR ENTRY. 

THE CANON OF STRICT CONSTRUCTION OF CRIMINAL STATUTES, OF COURSE,
"DOES NOT MEAN THAT EVERY CRIMINAL STATUTE MUST BE GIVEN THE NARROWEST
POSSIBLE MEANING IN COMPLETE DISREGARD OF THE PURPOSE OF THE
LEGISLATURE."  UNITED STATES V. BRAMBLETT, 348 U.S. 503, 510.  IF AN
ABSOLUTELY LITERAL READING OF A STATUTORY PROVISION IS IRRECONCILABLY
AT WAR WITH THE CLEAR CONGRESSIONAL PURPOSE, A LESS LITERAL
CONSTRUCTION MUST BE CONSIDERED.  IN THIS SPIRIT, WE READ SEC. 1546 IN
CONJUNCTION WITH 8 U.S.C. 1101(A)(13)-- ANOTHER PART OF THE 1952
IMMIGRATION AND NATIONALITY ACT-- WHICH PROVIDES THAT, UNDER MOST
CIRCUMSTANCES, AN "ENTRY" INTO THE UNITED STATES IS DEFINED TO INCLUDE
A "RE-ENTRY."  WE HAVE HELD IN THE PAST THAT CONGRESS DID NOT INTEND
THESE TERMS TO BE TAKEN ENTIRELY SYNONYMOUSLY.  ROSENBERG V. FLEUTI,
374 U.S. 449.  BUT CONGRESS CLEARLY DID INTEND A SIGNIFICANT OVERLAP,
AND WE CANNOT SAY THAT A DOCUMENT USABLE FOR "ENTRY" INTO THE UNITED
STATES UNDER SEC. 1546 DOES NOT INCLUDE SOME DOCUMENTS USABLE FOR "RE
ENTRY."  NOR DO WE HOLD THAT SEC.1546 APPLIES ONLY TO THOSE DOCUMENTS
ABSOLUTELY "REQUIRED" IN ORDER TO ENTER OR RE-ENTER THE COUNTRY.  TO DO
SO WOULD UNDERMINE THE CONGRESSIONAL PURPOSE BEHIND SEC. 1546, SINCE
THE IMMIGRATION AND NATURALIZATION SERVICE HAS NOT REQUIRED THAT
PRESENTATION OF ANY ONE PARTICULAR DOCUMENT BE THE EXCLUSIVE CONDITION
OF CROSSING OUR BORDERS. 

WHILE THE APPARENT CONGRESSIONAL PURPOSE UNDERLYING SEC. 1546 WOULD
THUS SEEM TO BAR AN UNCOMPROMISINGLY LITERAL CONSTRUCTION, THE PRECISE
LANGUAGE OF THE PROVISION MUST NOT BE DEPRIVED OF ALL FORCE.  THE
PRINCIPLE OF STRICT CONSTRUCTION OF CRIMINAL STATUTES DEMANDS THAT SOME
DETERMINATE LIMITS BE ESTABLISHED BASED UPON THE ACTUAL WORDS OF THE
STATUTE.  ACCORDINGLY, A "DOCUMENT REQUIRED FOR ENTRY INTO THE UNITED
STATES" CANNOT BE CONSTRUED TO INCLUDE ANY DOCUMENT WHATSOEVER THAT THE
IMMIGRATION AND NATURALIZATION SERVICE, FROM TIME TO TIME, DECIDES MAY
BE PRESENTED FOR RE-ENTRY AT THE BORDER.  THE LANGUAGE OF SEC. 1546
DENOTES A VERY SPECIAL CLASS OF "ENTRY" DOCUMENTS-- DOCUMENTS WHOSE
PRIMARY RAISON D'ETRE IS THE FACILITATION OF ENTRY INTO THE COUNTRY. 
THE PHRASE, "REQUIRED FOR ENTRY INTO THE UNITED STATES," IS DESCRIPTIVE
OF THE NATURE OF THE DOCUMENTS; IT IS NOT SIMPLY AN OPEN-ENDED
REFERENCE TO FUTURE ADMINISTRATIVE REGULATIONS. 

IF, FOR EXAMPLE, THE IMMIGRATION AND NATURALIZATION SERVICE WERE TO
ALLOW THE PRESENTATION OF IDENTIFICATION SUCH AS A DRIVER'S LICENSE AT
THE BORDER, THE NATURE OF SUCH A LICENSE WOULD NOT SUDDENLY CHANGE SO
THAT IT WOULD FALL INTO THE CATEGORY OF A "DOCUMENT REQUIRED FOR ENTRY
INTO THE UNITED STATES" UNDER SEC. 1546.  TO BE SURE, IF A COUNTERFEIT
DRIVER'S LICENSE WERE PRESENTED TO SECURE ENTRY OR RE-ENTRY INTO THE
COUNTRY, THE BEARER COULD BE PROSECUTED UNDER 8 U.S.C. 1325, WHICH
PROVIDES FOR THE PUNISHMENT OF "(ANY ALIEN WHO . . . OBTAINS ENTRY TO
THE UNITED STATES BY A WILLFULLY FALSE OR MISLEADING REPRESENTATION . .
. ."  BUT MERE POSSESSION OF A COUNTERFEIT DRIVER'S LICENSE, FAR FROM
THE BOARDER, COULD NOT BE PROSECUTED UNDER SEC. 1546.  THE REASON IS
THAT A DRIVER'S LICENSE IS NOT ESSENTIALLY AN "ENTRY" DOCUMENT. 
RATHER, ITS PRIMARY PURPOSE IS TO ALLOW ITS BEARER LAWFULLY TO DRIVE A
CAR, AND THE BEARER'S POSSESSION OF A COUNTERFEIT LICENSE, FAR FROM THE
BOARDER, COULD NOT BE ASSUMED TO BE RELATED TO THE POLICIES UNDERLYING
THE 1952 IMMIGRATION AND NATIONALITY ACT. 

THE SAME ANALYSIS APPLIES TO THE ALIEN REGISTRATION RECEIPT CARD. 
ITS ESSENTIAL PURPOSE IS NOT TO SECURE ENTRY INTO THE UNITED STATES,
BUT TO IDENTIFY THE BEARER AS A LAWFULLY REGISTERED ALIEN RESIDING IN
THE UNITED STATES.  IT IS ISSUED TO AN ALIEN AFTER HE HAS TAKEN UP
RESIDENCE IN THIS COUNTRY.  IT IS INTENDED TO GOVERN HIS ACTIVITIES AND
PRESENCE WITHIN THIS COUNTRY.  THE CARD HAS BEEN GIVEN A CONVENIENT,
ADDITIONAL FUNCTION AS A PERMISSIBLE SUBSTITUTE FOR A VISA OR RE-ENTRY
PERMIT IN FACILITATING RE-ENTRY INTO THE UNITED STATES BY A RESIDENT
ALIEN.  BUT, UNLIKE A VISA OR A RE-ENTRY PERMIT, /12/  AN ALIEN
REGISTRATION RECEIPT CARD SERVES THIS FUNCTION IN ONLY A SECONDARY
WAY.  UNLIKE A VISA OR A RE-ENTRY PERMIT, IT IS NOT, BY ITS NATURE, A
"DOCUMENT REQUIRED FOR ENTRY INTO THE UNITED STATES" UNDER SEC. 1546. 

THIS CONSTRUCTION OF THE LANGUAGE OF SEC. 1546 IS CONCLUSIVELY
SUPPORTED BY THAT SECTION'S STATUTORY CONTEXT.  IN THE 1952 IMMIGRATION
AND NATIONALITY ACT, CONGRESS CLEARLY REGARDED ALIEN REGISTRATION
RECEIPT CARDS AS SERVING POLICIES SEPARATE AND DISTINCT FROM THOSE
SERVED BY PURE "ENTRY" DOCUMENTS.  ALTHOUGH, IN 1952, THOSE CARDS COULD
BE USED AS SUBSTITUTES FOR VISAS OR RE-ENTRY PERMITS, THE CONGRESS
CHOSE TO DEAL WITH THEM SEPARATELY.  IN 8 U.S.C. 1306(C) AND 1036(D),
IT SPECIFICALLY PROVIDED FOR THE PUNISHMENT OF ONE "WHO PROCURES OR
ATTEMPTS TO PROCURE REGISTRATION OF HIMSELF OR ANOTHER PERSON THROUGH
FRAUD" AND OF ONE WHO COUNTERFEITS AN ALIEN REGISTRATION RECEIPT CARD. 
THE FACT THAT THE CONGRESS DID NOT RELY ON SEC. 1546 TO ENSURE THE
INTEGRITY OF ALIEN REGISTRATION RECEIPT CARDS INDICATES THAT IT DID NOT
BELIEVE THAT THEY WERE COVERED BY THAT SECTION.  MOREOVER, THERE IS A
VERY SPECIFIC OVERLAP BETWEEN SEC. 1546 AND SEC. 1306.  BOTH SECTIONS
EXPLICITLY PROHIBIT COUNTERFEITING, AND BOTH EXPLICITLY PROHIBIT FRAUD
IN THE ACQUISITION OF DOCUMENTS.  /13/  UNLESS WE ASSUME THAT SEC. 1306
IS MERE SURPLUSAGE, WE MUST CONCLUDE THAT SEC. 1546 COVERS ONLY
SPECIALIZED "ENTRY" DOCUMENTS, AND NOT ALIEN REGISTRATION RECEIPT CARDS
SPECIFICALLY COVERED IN SEC. 1306.  /14/ 

FOR THESE REASONS THE JUDGMENT IS

              AFFIRMED. 

/1/  THE APPLICABLE PORTION OF SEC. 1546 READS AS FOLLOWS: 

"WHOEVER . . . KNOWINGLY FORGES, COUNTERFEITS, ALTERS, OR FALSELY
MAKES ANY IMMIGRANT OR NONIMMIGRANT VISA, PERMIT, OR OTHER DOCUMENT
REQUIRED FOR ENTRY INTO THE UNITED STATES, OR UTTERS, USES, ATTEMPTS TO
USE, POSSESSES, OBTAINS, ACCEPTS, OR RECEIVES ANY SUCH VISA, PERMIT, OR
DOCUMENT, KNOWING IT TO BE FORGED, COUNTERFEITED, ALTERED, OR FALSELY
MADE, OR TO HAVE BEEN PROCURED BY MEANS OF ANY FALSE CLAIM OR
STATEMENT, OR TO HAVE BEEN OTHERWISE PROCURED BY FRAUD OR UNLAWFULLY
OBTAINED . . . .

        .          .          .          . 

"SHALL BE FINED NOT MORE THAN $2,000 OR IMPRISONED NOT MORE THAN
FIVE YEARS, OR BOTH." 

/2/  THE SENTENCE WAS SUSPENDED, AND THE RESPONDENT WAS PLACED ON
PROBATION FOR THREE YEARS "ON CONDITION THAT HE RETURN TO MEXICO AND
NOT RETURN TO THE UNITED STATES ILLEGALLY."  PURSUANT TO THIS SENTENCE,
HE WAS REMANDED TO THE CUSTODY OF THE IMMIGRATION AND NATURALIZATION
SERVICE FOR DEPORTATION UNDER A PREVIOUS ORDER.  IT APPEARS THAT HE IS
NOW IN MEXICO.  CLEARLY, THE FACT THAT THE RESPONDENT IS NOW OUT OF THE
COUNTRY DOES NOT RENDER THIS CASE MOOT.  HE IS STILL UNDER THE SENTENCE
OF THE DISTRICT COURT AND ON PROBATION SUBJECT TO CONDITIONS IMPOSED BY
THE DISTRICT COURT.  SHOULD HE VIOLATE THOSE CONDITIONS, HE WILL BE
SUBJECT TO IMPRISONMENT UNDER HIS CONTINUING CRIMINAL SENTENCE. 

EISLER V. UNITED STATES, 338 U.S. 189, IS IRRELEVANT TO THIS CASE. 
THERE, THE PETITIONER FLED VOLUNTARILY FROM THE UNITED STATES AND
SUCCESSFULLY RESISTED EXTRADITION.  WE, THEREFORE, DECLINED TO CONSIDER
THE MERITS OF HIS CASE, JUST AS WE HAVE DECLINED OVER THE YEARS TO
CONSIDER THE MERITS OF CRIMINAL CASES IN WHICH THE PARTY SEEKING REVIEW
HAS ESCAPED "FROM THE RESTRAINTS PLACED UPON HIM PURSUANT TO THE
CONVICTION."  MOLINARO V. NEW JERSEY, 396 U.S. 365, 366; BONAHAN V.
NEBRASKA, 125 U.S. 692; SMITH V. UNITED STATES, 94 U.S. 97.  "WHILE
SUCH AN ESCAPE DOES NOT STRIP THE CASE OF ITS CHARACTER AS AN
ADJUDICATORY CASE OR CONTROVERSY, WE BELIEVE IT DISENTITLES (THE PARTY)
TO CALL UPON THE RESOURCES OF THE COURT FOR DETERMINATION OF HIS
CLAIMS."  MOLINARO V. NEW JERSEY, SUPRA, AT 366.  IN THE PRESENT CASE,
BY CONTRAST, THE RESPONDENT HAS NOT FLED FROM THE RESTRAINTS IMPOSED BY
THE DISTRICT COURT PURSUANT TO THIS CONVICTION.  RATHER, HE IS LIVING
UNDER THOSE RESTRAINTS TODAY. 

/3/  "THE COURT WILL NOT PASS UPON A CONSTITUTIONAL QUESTION
ALTHOUGH PROPERLY PRESENTED BY THE RECORD, IF THERE IS IS ALSO PRESENT
SOME OTHER GROUND UPON WHICH THE CASE MAY BE DISPOSED OF." 

/4/  ACCORD, UNITED STATES V. FERNANDEZ-GONZALES (64 CR 101 ND ILL.)
(UNPUBLISHED OPINION).  CONTRARY TO THE SUGGESTION IN THE DISSENTING
OPINION, OUR DECISION ON THIS ISSUE OF STATUTORY CONSTRUCTION WILL
HARDLY COME AS A "SURPRISE" TO THE PARTIES.  THE ISSUE WAS PRESENTED TO
AND DECIDED BY THE COURT OF APPEALS.  IT APPEALS.  IT WAS ARGUED AND
FULLY BRIEFED BEFORE THIS COURT BY BOTH PARTIES.     /5/  43 STAT.
165. 

/6/  SEE H.R. REP. NO. 1365, 82D CONG., 2D SESS.; S. REP. NO. 1137,
82D CONG., 2D SESS.; H.R. CONF. REP. NO. 2086, 82D CONG., 2D SESS.  THE
ONLY ONE OF THESE REPORTS TO MAKE ANY MENTION WHATSOEVER OF THE CHANGES
IN SEC. 1546 WAS H.R. REP. NO. 1365.  IT SIMPLY STATED THAT "NECESSARY
AMENDMENTS (ARE MADE) TO OTHER LAWS . . . . MOST OF THOSE AMENDMENTS
ARE IN THE NATURE OF CONFORMING CHANGES."  ID., AT 88.  IT SEEMS MOST
LIKELY THAT THE PURPOSE OF THE NEW LANGUAGE IN SEC. 1546 WAS TO REACH
THE SPECIALIZED BORDER-CROSSING IDENTIFICATION CARDS, AUTHORIZED AS A
SUBSTITUTE FOR A VISA OR A PERMIT IN THE ALIEN REGISTRATION ACT OF
1940.  SEE N. 9 AND N. 12, INFRA.  AT THE TIME H.R. REP. NO. 1365 WAS
PUBLISHED, THE ALIEN REGISTRATION RECEIPT CARD HAD NO "ENTRY" OR "RE
ENTRY" FUNCTION. 

/7/  THE APPENDIX FILED BY THE GOVERNMENT IN THIS CASE CONTAINS A
REPRODUCTION OF AN ALIEN REGISTRATION RECEIPT CARD, FORM I-151 OF THE
IMMIGRATION AND NATURALIZATION SERVICE. 

/8/  SEE 54 STAT. 673.  THE STATUTORY PROVISIONS FOR THE
REGISTRATION OF ALIENS ARE NOW CONTAINED IN 8 U.S.C. 1301-1306. 

/9/  PROVISION FOR THE USE OF RE-ENTRY PERMITS WAS MADE IN THE
IMMIGRATION ACT OF 1924, SEC. 10, 43 STAT. 158.  THE ALIEN REGISTRATION
ACT OF 1940 REQUIRED THAT AN ALIEN PRESENT ONE OF THREE SPECIAL
DOCUMENTS-- A VISA, A RE-ENTRY PERMIT, OR A BORDER-CROSSING
IDENTIFICATION CARD-- IN ORDER TO COME INTO THE UNITED STATES.  54
STAT. 673. 

/10/  THE 1952 INS REGULATION PROVIDED THAT THE ALIEN REGISTRATION
RECEIPT CARD COULD BE USED AS A PERMISSIBLE SUBSTITUTE FOR A VISA OR A
RE-ENTRY PERMIT IN EFFECTING A RE-ENTRY INTO THIS COUNTRY FROM A
CONTIGUOUS COUNTRY.  17 FED.REG.  4921.  IN 1957, THIS PERMISSIBLE USE
OF THE ALIEN REGISTRATION RECEIPT CARD WAS EXPANDED TO INCLUDE RE-ENTRY
FROM NONCONTINGUOUS NATIONS.  22 FED.REG.  6377.  THE PRESENT INS
REGULATION APPEARS IN 8 CFR 211.1(B). 

/11/  8 CFR 211.1(B). 

/12/  VISAS AND RE-ENTRY PERMITS ARE THE SPECIALIZED "ENTRY"
DOCUMENTS FOR WHICH THE ALIEN REGISTRATION RECEIPT CARD IS A
PERMISSIBLE SUBSTITUTE UNDER PRESENT INS REGULATIONS.  SEE N. 10,
SUPRA. 

BORDER-CROSSING IDENTIFICATION CARDS ARE LIKE VISAS AND RE-ENTRY
PERMITS, AND UNLIKE ALIEN REGISTRATION RECEIPT CARDS, IN THAT THEY ARE
SPECIALIZED DOCUMENTS WHOSE SOLE PURPOSE AND FUNCTION IS TO REGULATE
THE CROSSING OF OUR NATIONAL BORDERS.  HENCE, THE LIKELIHOOD THAT
CONGRESS IN 1952 WISHED TO EXPAND THE COVERAGE OF SEC. 1546 TO REACH
BORDER-CROSSING IDENTIFICATION CARDS, SEE N. 6, SUPRA, SUPPORTS OUR
HOLDING.  THE EXPANSION MANDATED BY CONGRESS WAS SIMPLY WITHIN THE
CLASS OF SPECIALIZED "ENTRY" DOCUMENTS. 

/13/  THE PROHIBITION OF COUNTERFEITING IN SEC. 1546 IS CONTAINED IN
THE FIRST PARAGRAPH OF THAT SECTION.  SEE N. 1, SUPRA.  THE PROHIBITION
OF FRAUD IN THE ACQUISITION OF DOCUMENTS IS CONTAINED IN THE THIRD
PARAGRAPH OF SEC. 1546, WHICH READS AS FOLLOWS: 

"WHOEVER, WHEN APPLYING FOR AN IMMIGRANT OR NONIMMIGRANT VISA,
PERMIT, OR OTHER DOCUMENT REQUIRED FOR ENTRY INTO THE UNITED STATES, OR
FOR ADMISSION TO THE UNITED STATES PERSONATES ANOTHER, OR FALSELY
APPEARS IN THE NAME OF A DECEASED INDIVIDUAL, OR EVADES OR ATTEMPTS TO
EVADE THE IMMIGRATION LAWS BY APPEARING UNDER AN ASSUMED OR FICTITIOUS
NAME WITHOUT DISCLOSING HIS TRUE IDENTITY . . . .

        .         .          .          . 

"SHALL BE FINED NOT MORE THAN $2,000 OR IMPRISONED NOT MORE THAN
FIVE YEARS, OR BOTH." 

/14/  "(A) STATUTE OUGHT, UPON THE WHOLE, TO BE SO CONSTRUED THAT,
IF IT CAN BE PREVENTED, NO CLAUSE, SENTENCE, OR WORD SHALL BE
SUPERFLUOUS, VOID, OR INSIGNIFICANT.'"  MARKET CO. V. HOFFMAN, 101 U.S.
112, 115-116.  SEE JARECKI V. G. D. SEARLE & CO., 367 U.S. 303, 307
308.  TO BE SURE, THE OVERLAP BETWEEN SEC. 1546 AND SEC. 1306 IS ONLY
PARTIAL, SINCE SEC. 1546 GOES FARTHER THAN SEC. 1306-- PROHIBITING THE
POSSESSION OF COUNTERFEIT DOCUMENTS AS WELL AS THE COUNTERFEITING OF
DOCUMENTS.  BUT THE CONGRESS WOULD HARDLY HAVE THOUGHT IT NECESSARY TO
CREATE ANY OVERLAP AT ALL, IF IT HAD BELIEVED ALIEN REGISTRATION
RECEIPT CARDS WERE COVERED BY SEC. 1546. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

THE COURT TODAY AFFIRMS THE JUDGMENT OF THE COURT OF APPEALS "UPON A
DISCRETE STATUTORY GROUND" AND DOES NOT REACH THE QUESTIONS WITH
RESPECT TO WHICH CERTIORARI WAS GRANTED.  /1/  THIS STATUTORY GROUND
WAS REJECTED BY THE DISTRICT COURT WHEN IT DENIED A DEFENSE MOTION TO
DISMISS THE INDICTMENT.  IT WAS ALSO REJECTED BY THE COURT OF APPEALS. 
430 F.2D 173, 175-176.  I WOULD REJECT IT HERE. 

THE STATUTORY ISSUE TO WHICH THE COURT RETREATS IS WHETHER AN ALIEN
REGISTRATION CARD IS A "DOCUMENT REQUIRED FOR ENTRY INTO THE UNITED
STATES," WITHIN THE MEANING OF 18 U.S.C. 1546.  THE COURT HOLDS,
SOMEWHAT TO THE SURPRISE OF THE LITIGANTS I AM SURE, THAT THE CARD IS
NOT SUCH A DOCUMENT, AND THAT CAMPOS-SERRANO'S INDICTMENT, THEREFORE,
CHARGED NO OFFENSE UNDER THE STATUTE.  I FEEL THAT THIS CONCLUSION HAS
NO SUPPORT EITHER IN THE STATUTORY LANGUAGE AND MEANING OR IN THE
LEGISLATIVE HISTORY, AND IS CERTAINLY NOT SUPPORTED BY THE PRACTICE,
LONG IN EFFECT, AT OUR NATION'S BORDERS. 

        I 

THE PARENT OF SEC. 1546 IS SEC. 22(A) OF THE IMMIGRATION ACT OF
1924.  43 STAT. 165.  THAT STATUTE DID NOT REFER TO "ANY IMMIGRANT OR
NONIMMIGRANT VISA, PERMIT, OR OTHER DOCUMENT REQUIRED FOR ENTRY INTO
THE UNITED STATES," AS SEC. 1546 DOES TODAY.  INSTEAD, IT SPOKE ONLY OF
"ANY IMMIGRANT VISA OR PERMIT."  NEVERTHELESS, EVEN UNDER THE
DEFINITION "PERMIT" IN THIS OLDER AND NARROWER STATUTE, CONGRESS
SPECIFICALLY INCLUDED A TEMPORARY RE-ENTRY PAPER ISSUED TO AND USED BY
A RESIDENT ALIEN WHO WISHED TO LEAVE THE COUNTRY FOR A PERIOD OF LESS
THAN ONE YEAR.  /2/  CLEARLY, THEREFORE, THE STATUTORY SCHEME, AS FAR
BACK AS 1924, CONTEMPLATED THAT KNOWING POSSESSION OF AN ALTERED
DOCUMENT USEFUL ONLY FOR RE-ENTERING THE UNITED STATES WAS PUNISHABLE
AS A FELONY. 

THE REGISTRATION CARD CAME INTO BEING WITH TITLE III OF THE ALIEN
REGISTRATION ACT OF 1940, 54 STAT. 673.  AT FIRST IT SERVED ONLY FOR
IDENTIFICATION OF THE ALIEN WHO HAD COMPLIED WITH THE REGISTRATION
REQUIREMENTS.  SECTION 30 OF THE 1940 ACT, HOWEVER, AUTHORIZED THE USE
OF A SEPARATE "BORDER-CROSSING IDENTIFICATION CARD" BY A RESIDENT ALIEN
IN ORDER TO ENABLE HIM TO RETURN TO THE UNITED STATES AFTER TEMPORARY
TRAVEL TO A CONTIGUOUS COUNTRY. 

AN INS REGULATION FILED MAY 29, 1952, PROVIDED THAT A REGISTRATION
CARD, ISSUED ON OR AFTER SEPTEMBER 10, 1946, "SHALL CONSTITUTE A
RESIDENT ALIEN'S BORDER CROSSING CARD" AND COULD BE USED BY THE ALIEN
IN EFFECTING RE-ENTRY INTO THE UNITED STATES PROVIDED HE HAD NOT
VISITED ANY FOREIGN TERRITORY OTHER THAN CANADA OR MEXICO.  17
FED.REG.  4921-4922.  THIS WAS THE FIRST TIME A REGISTRATION CARD, AS
SUCH, WAS RECOGNIZED AS A RE-ENTRY DOCUMENT.  BUT IT WAS SO
RECOGNIZED.  FIVE YEARS LATER ITS USE WAS EXPANDED WITH RESPECT TO RE
ENTRY FROM NATIONS THAT WERE NOT CONTIGUOUS.  22 FED.REG.  6377
(1957).  ITS USE FOR THIS PURPOSE HAS CONTINUED TO THE PRESENT TIME.  8
CFR 211.1(B) (1971). 

IN ADDITION TO THIS ADMINISTRATIVE PRACTICE, THE STATUTORY LANGUAGE
ITSELF WAS EXPANDED.  SECTION 22(A) OF THE 1924 ACT WAS REPEALED IN
1948 AND SIMULTANEOUSLY RE-ENACTED WITHOUT SIGNIFICANT CHANGE AS 18
U.S.C. 1546 AND AS PART OF THAT YEAR'S GENERAL RECODIFICATION OF THE
FEDERAL CRIMINAL LAWS.  62 STAT. 771, 865.  FINALLY, SEC. 1546 WAS
AMENDED TO ITS PRESENT FORM BY SEC. 402(A) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952.  66 STAT. 275. 

THERE IS NO ROOM FOR DISPUTE THAT THE 1952 CHANGE SERVED TO BROADEN,
NOT TO CONTRACT, THE NUMBER OF DOCUMENTS WITHIN THE PROHIBITION OF SEC.
1546.  THE 1924 REFERENCE TO "ANY IMMIGRATION VISA OR PERMIT" IS
OBVIOUSLY BUT A LESSER PART OF THE LATER AND STILL CURRENT PHRASE, "ANY
IMMIGRANT OR NONIMMIGRANT VISA, PERMIT, OR OTHER DOCUMENT REQUIRED FOR
ENTRY."  SEE UNITED STATES V. RODRIGUEZ, 182 F.SUPP.  479, 484 N. 3 (SD
CAL. 1960), REV'D IN PART ON OTHER GROUNDS, SUB NOM. ROCHA V. UNITED
STATES, 288 F.2D 545 (CA9), CERT. DENIED, 366 U.S. 948 (1961).  FROM
1924 UNTIL THE 1952 LEGISLATION, NARROWER STATUTORY LANGUAGE
NEVERTHELESS HAD COVERED A DOCUMENT USED SOLELY FOR RE-ENTRY.  SURELY
NOTHING IN THE EXPANDED LANGUAGE OF 1952 SUGGESTS CONGRESSIONAL INTENT
THENCEFORTH TO CONFINE THE STATUTE TO INITIAL-ENTRY DOCUMENTS.  INDEED,
CONGRESSIONAL INTENT TO THE CONTRARY, THAT IS, TO ENLARGE THE COVERAGE
OF SEC. 1546, IS EVIDENT NOT ONLY FROM THE STATUTE'S WORDS BUT, AS
WELL, FROM THE DEFINITION OF "ENTRY" IN THE 1952 ACT, SEC. 101(A)(13),
66 STAT. 167, 8 U.S.C. 1101(A)(13): 

     "THE TERM 'ENTRY' MEANS ANY COMING OF AN ALIEN INTO THE UNITED

  STATES, FROM A FOREIGN PORT OR PLACE OR FROM AN OUTLYING

  POSSESSION, WHETHER VOLUNTARY OR OTHERWISE, EXCEPT . . . ." 

FROM THIS IT INEVITABLY FOLLOWS THAT THE PHRASE "DOCUMENT REQUIRED
FOR ENTRY" EMBRACES A DOCUMENT USED FOR RE-ENTRY INTO THE UNITED
STATES.  ONE DOCUMENT OF THAT KIND IS THE ALIEN REGISTRATION CARD. 
/3/ 

THIS BRIEF BUT CLEAR ADMINISTRATIVE AND LEGISLATIVE HISTORY, IT
SEEMS TO ME, REVEALS AND PROVES THE INTENT OF CONGRESS AND THE MEANING
AND REACH OF THE STATUTE.  THE ALIEN REGISTRATION CARD, FORM I-151,
BECAME ONE OF A NUMBER OF DOCUMENTS SPECIFIED AND ACCEPTED AND REQUIRED
FOR RE-ENTRY. 

THE COURT'S OPINION, AS I READ IT, SEEMS TO ACCEPT MOST OF ALL THIS,
THAT IS, THAT THERE IS NO SEC. 1546 DISTINCTION BETWEEN "ENTRY" AND "RE
ENTRY," AND THAT AN ALIEN REGISTRATION CARD IS A DOCUMENT "REQUIRED"
FOR ENTRY INTO THE UNITED STATES.  ANTE, AT 298. 

HAVING MADE THIS BROAD AND, TO ME, SENSIBLE READING OF SEC. 1546,
THE COURT, HOWEVER, THEN REVERSES DIRECTION AND CONVENIENTLY RESTRICTS
SEC. 1546 TO "A VERY SPECIAL CLASS OF 'ENTRY' DOCUMENTS-- DOCUMENTS
WHOSE PRIMARY RAISON D'ETRE IS THE FACILITATION OF ENTRY INTO THE
COUNTRY," AND IT ACCUSES THE INS OF STANDING TO GAIN "AN OPEN-ENDED
REFERENCE TO FUTURE ADMINISTRATIVE REGULATIONS" IF THE GOVERNMENT WERE
TO PREVAIL HERE.  THE REASONS FOR THIS CHANGE OF DIRECTION ARE NOT
APPARENT TO ME.  THE COURT'S COMPARISON OF THE REGISTRATION CARD TO A
DRIVER'S LICENSE IN THIS CONTEXT IS WIDE OF THE MARK.  A DRIVER'S
LICENSE HAS NOTHING TO DO WITH IMMIGRATION.  A REGISTRATION CARD HAS
EVERYTHING TO DO WITH IMMIGRATION.  IT IS AUTHORIZED UNDER THE
IMMIGRATION STATUTES.  IT IS REQUIRED OF A RESIDENT ALIEN.  8 U.S.C.
1301-1306.  AND FOR ALMOST TWO DECADES IT HAS BEEN A RE-ENTRY
DOCUMENT. 

        II 

THE FACT THAT THERE MAY BE SOME OVERLAPPING BETWEEN SEC. 1546 AND 8
U.S.C. 1306(D) DOES NOT PREVENT THE APPLICATION OF SEC. 1546 TO THE
ALIEN REGISTRATION CARD.  /4/  SECTION 1306(D) CAME INTO BEING AS SEC.
266(D) OF THE 1952 ACT, 66 STAT. 226.  IT DOES REFER SPECIFICALLY TO
"AN ALIEN REGISTRATION RECEIPT CARD,"  WHEREAS SEC 1546 HAS NO SUCH
SPECIFIC REFERENCE.  THE TWO SECTIONS, HOWEVER, HAVE DIFFERENT PURPOSES
AND RELATE TO DIFFERENT ASPECTS OF IMMIGRATION.  SECTION 266(D) WAS A
PART OF THE ACT'S CHAPTER THAT CONCERNED "REGISTRATION OF ALIENS."  IT
HAS TO DO WITH THE IMPLEMENTATION AND PROTECTION OF THE ALIEN
REGISTRATION SCHEME.  IT REACHED COUNTERFEITING ALONE.  SECTION 1546,
ON THE OTHER HAND, IS CONCERNED WITH ENTRY INTO THE COUNTRY AND WITH
THE INTEGRITY OF DOCUMENTS USED IN EFFECTING ENTRY.  IT IS NOT
RESTRICTED TO COUNTERFEITING.  IT ALSO REACHES KNOWING POSSESSION AND
ALTERATION. 

THE COURT'S EXCLUSION OF THE ALIEN REGISTRATION CARD FROM THE REACH
OF SEC. 1546 LEAVES ENTIRELY FREE FROM PUNISHMENT THE ALTERATION OF A
CARD AND THE POSSESSION OF A CARD WITH KNOWLEDGE OF ITS ALTERED OR
COUNTERFEIT CHARACTER.  SURELY, CONGRESS DID NOT INTEND TO LEAVE THAT
LOOPHOLE.  /5/ 

I THEREFORE DISSENT FROM THE COURT'S AFFIRMANCE OF THE JUDGMENT OF
THE COURT OF APPELAS UPON THE "DISCRETE STATUTORY GROUND."  I WOULD
DECIDE THAT ISSUE AS THE COURT OF APPEALS DECIDED IT AND I WOULD GO ON
TO REACH THE QUESTION WE ANTICIPATED WHEN WE GRANTED THE PETITION FOR
CERTIORARI. 

/1/  "1.  WHETHER THE COURT BELOW UNDULY EXTENDED MIRANDA V.
ARIZONA, 384 U.S. 436, BY HOLDING, ON THE FACTS OF THIS CASE, THAT
AGENTS OF THE IMMIGRATION AND NATURALIZATION SERVICE WERE REQUIRED TO
GIVE RESPONDENT WARNINGS BEFORE ASKING HIM TO PRODUCE HIS ALIEN
REGISTRATION CARD. 

"2.  WHETHER AN ALIEN REGISTRATION CARD IS A 'REQUIRED RECORD' WHICH
AN ALIEN MUST PRODUCE UPON REQUEST IRRESPECTIVE OF WHETHER HE IS 'IN
CUSTODY.'"  PET. FOR CERT. 2. 

/2/  SECTIONS 28(K) AND 10 OF THE 1924 ACT, 43 STAT. 169 AND 158. 

/3/  THE FACE OF THE CARD, FORM I-151, BEARS THE RECITAL, "THIS CARD
WILL BE HONORED IN LIEU OF A VISA AND PASSPORT ON CONDITION THAT THE
RIGHTFUL HOLDER IS RETURNING TO THE UNITED STATES AFTER A TEMPORARY
ABSENCE OF NOT MORE THAN ONE YEAR AND IS NOT SUBJECT TO EXCLUSION UNDER
ANY PROVISION OF THE IMMIGRATION LAWS." 

/4/  OVERLAPPING IN FEDERAL CRIMINAL STATUTES IS NOT UNKNOWN.  SEE,
FOR EXAMPLE, SANSONE V. UNITED STATES, 380 U.S. 343 (1965); GORE V.
UNITED STATES, 357 U.S. 386 (1958); ACHILLI V. UNITED STATES, 353 U.S.
373 (1957); PRINCE V. UNITED STATES, 352 U.S. 322 (1957); SPIES V.
UNITED STATES, 317 U.S. 492 (1943). 

/5/  THE LOOPHOLE IS NOT CLOSED BY 8 U.S.C. 1325, AS THE RESPONDENT
WOULD ASSERT.  SECTION 1325 CONCERNS A VERY DIFFERENT OFFENSE, NAMELY,
THE ACTUAL MISUSE OF THE ENTRY DOCUMENT IN OBTAINING ENTRY TO THE
UNITED STATES.  SECTION 1546, ON THE OTHER HAND, RELATES TO POTENTIAL
MISUSE OF THE ENTRY DOCUMENT AFTER GAINING ENTRY TO THE COUNTRY. 

WILLIAM BRADFORD REYNOLDS ARGUED THE CAUSE FOR THE UNITED STATES PRO
HAC VICE.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL WILSON, BEATRICE ROSENBERG, AND ROGER A.
PAULEY.     JOHN J. CLEARY, BY APPOINTMENT OF THE COURT, 401 U.S. 990,
ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

WILLIAM J. SCOTT, ATTORNEY GENERAL, JOEL M. FLAUM, FIRST ASSISTANT
ATTORNEY GENERAL, AND JAMES B. ZAGEL AND JAYNE A. CARR, ASSISTANT
ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF ILLINOIS AS AMICUS
CURIAE URGING REVERSAL. 
..END :

















UNITED STATES V. MARION, 404 U.S. 307 


       UNITED STATES V. MARION ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA

        NO. 70-19.  ARGUED NOVEMBER 8, 1971-- DECIDED DECEMBER 20,

           1971 


APPELLEES, CLAIMING THAT THE GOVERNMENT HAD KNOWN OF THE CRIMES WITH
WHICH THEY WERE CHARGED, THE CIRCUMSTANCES OF THE CRIMES, AND
APPELLEES' IDENTITIES FOR OVER THREE YEARS BEFORE THEY WERE INDICTED,
MOVED TO DISMISS ON THE GROUND THAT THE INDICTMENT WAS RETURNED "AN
UNREASONABLY OPPRESSIVE AND UNJUSTIFIABLE TIME AFTER THE ALLEGED
OFFENSES," AND THAT THE DELAY DEPRIVED THEM OF RIGHTS TO DUE PROCESS OF
LAW AND A SPEEDY TRIAL AS SECURED BY THE FIFTH AND SIXTH AMENDMENTS. 
WHILE ASSERTING NO SPECIFIC PREJUDICE, APPELLEES CONTENDED THAT THE
INDICTMENT REQUIRED MEMORY OF MANY SPECIFIC ACTS AND CONVERSATIONS
OCCURRING SEVERAL YEARS BEFORE AND THAT THE DELAY WAS DUE TO THE
PROSECUTOR'S NEGLIGENCE OR INDIFFERENCE IN INVESTIGATING THE CASE AND
PRESENTING IT TO THE GRAND JURY.  THE DISTRICT COURT, AFTER A HEARING,
GRANTED APPELLEES' MOTION AND DISMISSED THE INDICTMENT FOR "LACK OF
SPEEDY PROSECUTION," HAVING FOUND THAT THE DEFENSE WAS "BOUND TO HAVE
BEEN SERIOUSLY PREJUDICED" BY THE THREE-YEAR DELAY.  THE GOVERNMENT
TOOK A DIRECT APPEAL TO THIS COURT, WHICH POSTPONED CONSIDERATION OF
THE QUESTION OF JURISDICTION UNTIL THE HEARING ON THE MERITS.  HELD: 

1.  THE MOTION TO DISMISS THE INDICTMENT FOR LACK OF A SPEEDY TRIAL
WAS IN THE NATURE OF A CONFESSION AND AVOIDANCE AND CONSTITUTED A
MOTION IN BAR BY APPELLEES WHO HAD NOT BEEN PLACED IN JEOPARDY WHEN THE
DISTRICT COURT ENTERED ITS ORDER OF DISMISSAL.  THAT ORDER WAS
THEREFORE DIRECTLY APPEALABLE TO THIS COURT UNDER FORMER 18 U.S.C.
3731.  P. 311-312. 

2.  THE SIXTH AMENDMENT'S GUARANTEE OF A SPEEDY TRIAL IS APPLICABLE
ONLY AFTER A PERSON HAS BEEN "ACCUSED" OF A CRIME, WHICH IN THIS CASE
DID NOT OCCUR UNTIL APPELLEES (WHO HAD NOT PREVIOUSLY BEEN ARRESTED OR
OTHERWISE CHARGED) WERE INDICTED.  PP. 313-320. 

3.  THE RELEVANT STATUTE OF LIMITATIONS PROVIDES A SAFEGUARD AGAINST
POSSIBLE PREJUDICE RESULTING FROM PRE-ACCUSATION DELAY, AND HERE
APPELLEES WERE INDICTED WITHIN THE APPLICABLE LIMITATIONS PERIOD.  PP.
320-323. 

4.  THOUGH THE DUE PROCESS CLAUSE MAY PROVIDE A BASIS FOR DISMISSING
AN INDICTMENT IF THE DEFENSE CAN SHOW AT TRIAL THAT PROSECUTORIAL DELAY
HAS PREJUDICED THE RIGHT TO A FAIR TRIAL, APPELLEES HAVE NOT CLAIMED OR
PROVED ACTUAL PREJUDICE RESULTING FROM THE DELAY AND THEIR DUE PROCESS
CLAIMS ARE THEREFORE SPECULATIVE AND PREMATURE.  PP. 325-326. 

REVERSED 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED AN
OPINION CONCURRING IN THE RESULT, IN WHICH BRENNAN AND MARSHALL, JJ.,
JOINED, POST, P. 326. 

MR.JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL REQUIRES US TO DECIDE WHETHER DISMISSAL OF A FEDERAL
INDICTMENT WAS CONSTITUTIONALLY REQUIRED BY REASON OF A PERIOD OF THREE
YEARS BETWEEN THE OCCURRENCE OF THE ALLEGED CRIMINAL ACTS AND THE
FILING OF THE INDICTMENT. 

ON APRIL 21, 1970, THE TWO APPELLEES WERE INDICTED AND CHARGED IN 19
COUNTS WITH OPERATING A BUSINESS KNOWN AS ALLIED ENTERPRISES, INC.,
WHICH WAS ENGAGED IN THE BUSINESS OF SELLING AND INSTALLING HOME
IMPROVEMENTS SUCH AS INTERCOM SETS, FIRE CONTROL DEVICES, AND BURGLARY
DETECTION SYSTEMS.  ALLEGEDLY, THE BUSINESS WAS FRAUDULENTLY CONDUCTED
AND INVOLVED MISREPRESENTATIONS, ALTERATIONS OF DOCUMENTS AND
DELIBERATE NONPERFORMANCE OF CONTRACTS.  THE PERIOD COVERED BY THE
INDICTMENT WAS MARCH 15, 1965, TO FEBRUARY 6, 1967; THE EARLIEST
SPECIFIC ACT ALLEGED OCCURRED ON SEPTEMBER 3, 1965, THE LATEST ON
JANUARY 19, 1966. 

ON MAY 5, 1970, APPELLEES FILED A MOTION TO DISMISS THE INDICTMENT
"FOR FAILURE TO COMMENCE PROSECUTION OF THE ALLEGED OFFENSES CHARGED
THEREIN WITHIN SUCH TIME AS TO AFFORD (THEM THEIR) RIGHTS TO DUE
PROCESS OF LAW AND TO A SPEEDY TRIAL UNDER THE FIFTH AND SIXTH
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES."  NO EVIDENCE WAS
SUBMITTED, BUT FROM THE MOTION ITSELF AND THE ARGUMENTS OF COUNSEL AT
THE HEARING ON THE MOTION, IT APPEARS THAT ALLIED ENTERPRISES HAD BEEN
SUBJECT TO A FEDERAL TRADE COMMISSION CEASE-AND DESIST ORDER ON
FEBRUARY 6, 1967, AND THAT A SERIES OF ARTICLES APPEARED IN THE
WASHINGTON POST IN OCTOBER 1967, REPORTING THE RESULTS OF THAT
NEWSPAPER'S INVESTIGATION OF PRACTICES EMPLOYED BY HOME IMPROVEMENT
FIRMS SUCH AS ALLIED.  THE ARTICLES ALSO CONTAINED PURPORTED STATEMENTS
OF THE THEN UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA
DESCRIBING HIS OFFICE'S INVESTIGATION OF THESE FIRMS AND PREDICTING
THAT INDICTMENTS WOULD SOON BE FORTHCOMING.  ALTHOUGH THE STATEMENTS
ATTRIBUTED TO THE UNITED STATES ATTORNEY DID NOT MENTION ALLIED
SPECIFICALLY, THAT COMPANY WAS MENTIONED IN THE COURSE OF THE NEWSPAPER
STORIES.  IN THE SUMMER OF 1968, AT THE REQUEST OF THE UNITED STATES
ATTORNEY'S OFFICE, ALLIED DELIVERED CERTAIN OF ITS RECORDS TO THAT
OFFICE, AND IN AN INTERVIEW THERE APPELLEE MARION DISCUSSED HIS CONDUCT
AS AN OFFICER OF ALLIED ENTERPRISES.  THE GRAND JURY THAT INDICTED
APPELLEES WAS NOT IMPANELED UNTIL SEPTEMBER 1969, APPELLEES WERE NOT
INFORMED OF THE GRAND JURY'S CONCERN WITH THEM UNTIL MARCH 1970, AND
THE INDICTMENT WAS FINALLY HANDED DOWN IN APRIL. 

APPELLEES MOVED TO DISMISS BECAUSE THE INDICTMENT WAS RETURNED "AN
UNREASONABLY OPPRESSIVE AND UNJUSTIFIABLE TIME AFTER THE ALLEGED
OFFENSES."  THEY ARGUED THAT THE INDICTMENT REQUIRED MEMORY OF MANY
SPECIFIC ACTS AND CONVERSATIONS OCCURRING SEVERAL YEARS BEFORE, AND
THEY CONTENDED THAT THE DELAY WAS DUE TO THE NEGLIGENCE OR INDIFFERENCE
OF THE UNITED STATES ATTORNEY IN INVESTIGATING THE CASE AND PRESENTING
IT TO A GRAND JURY.  NO SPECIFIC PREJUDICE WAS CLAIMED OR
DEMONSTRATED.  THE DISTRICT COURT JUDGE DISMISSED THE INDICTMENT FOR
"LACK OF SPEEDY PROSECUTION"  AT THE CONCLUSION OF THE HEARING AND
REMARKED THAT SINCE THE GOVERNMENT MUST HAVE BECOME AWARE OF THE
RELEVANT FACTS IN 1967, THE DEFENSE OF THE CASE "IS BOUND TO HAVE BEEN
SERIOUSLY PREJUDICED BY THE DELAY OF AT LEAST SOME THREE YEARS IN
BRINGING THE PROSECUTION THAT SHOULD HAVE BEEN BROUGHT IN 1967, OR AT
THE VERY LATEST EARLY 1968."  /1/ 

THE UNITED STATES APPEALED DIRECTLY TO THIS COURT PURSUANT TO 18
U.S.C. 3731 (1964 ED., SUPP. V).  /2/  WE POSTPONED CONSIDERATION OF
THE QUESTION OF JURISDICTION UNTIL THE HEARING ON THE MERITS OF THE
CASE.  /3/  WE NOW HOLD THAT THE COURT HAS JURISDICTION, AND ON THE
MERITS WE REVERSE THE JUDGMENT OF THE DISTRICT COURT. 

    I 

PRIOR TO ITS RECENT AMENDMENT, 18 U.S.C. 3731 (1964 ED., SUPP. V)
AUTHORIZED AN APPEAL TO THIS COURT BY THE UNITED STATES WHEN IN ANY
CRIMINAL CASE A DISTRICT COURT SUSTAINED "A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY."  IT IS PLAIN TO US THAT THE
APPEAL OF THE UNITED STATES IS WITHIN THE PURVIEW OF THIS SECTION. 
APPELLEES HAD NOT BEEN PLACED IN JEOPARDY WHEN THE DISTRICT COURT
RENDERED ITS JUDGMENT.  THE TRIAL JUDGE BASED HIS RULING ON UNDUE DELAY
PRIOR TO INDICTMENT, A MATTER THAT WAS BEYOND THE POWER OF THE
GOVERNMENT TO CURE SINCE RE-INDICTMENT WOULD NOT HAVE BEEN PERMISSIBLE
UNDER SUCH A RULING.  THE MOTION TO DISMISS RESTED ON GROUNDS THAT HAD
NOTHING TO DO WITH GUILT OR INNOCENCE OR THE TRUTH OF THE ALLEGATIONS
IN THE INDICTMENT BUT WAS, RATHER, A PLEA IN THE NATURE OF THE
CONFESSION AND AVOIDANCE, THAT IS, WHERE THE DEFENDANT DOES NOT DENY
THAT HE HAS COMMITTED THE ACTS ALLEGED AND THAT THE ACTS WERE A CRIME
BUT INSTEAD PLEADS THAT HE CANNOT BE PROSECUTED BECAUSE OF SOME
EXTRANEOUS FACTOR, SUCH AS THE RUNNING OF THE STATUTE OF LIMITATIONS OR
THE DENIAL OF A SPEEDY TRIAL.  SEE UNITED STATES V. WELLER, 401 U.S.
254, 260 (1971).  THE MOTION RESTED ON CONSTITUTIONAL GROUNDS
EXCLUSIVELY, AND NEITHER THE MOTION, THE ARGUMENTS OF COUNSEL, THE
COURT'S ORAL OPINION, NOT ITS JUDGMENT MENTIONED FEDERAL RULE OF
CRIMINAL PROCEDURE 48(B), AS A GROUND FOR DISMISSAL.  /4/  OUR
JURISDICTION TO HEAR THIS APPEAL HAS BEEN SATISFACTORILY ESTABLISHED. 

II 

APPELLEES DO NOT CLAIM THAT THE SIXTH AMENDMENT WAS VIOLATED BY THE
TWO-MONTH DELAY BETWEEN THE RETURN OF THE INDICTMENT AND ITS
DISMISSAL.  INSTEAD, THEY CLAIM THAT THEIR RIGHTS TO A SPEEDY TRIAL
WERE VIOLATED BY THE PERIOD OF APPROXIMATELY THREE YEARS BETWEEN THE
END OF THE CRIMINAL SCHEME CHARGED AND THE RETURN OF THE INDICTMENT; IT
IS ARGUED THAT THIS DELAY IS SO SUBSTANTIAL AND INHERENTLY PREJUDICIAL
THAT THE SIXTH AMENDMENT REQUIRED THE DISMISSAL OF THE INDICTMENT.  IN
OUR VIEW, HOWEVER, THE SIXTH AMENDMENT SPEEDY TRIAL PROVISION HAS NO
APPLICATION UNTIL THE PUTATIVE DEFENDANT IN SOME WAY BECOMES AN
"ACCUSED," AN EVENT THAT OCCURRED IN THIS CASE ONLY WHEN THE APPELLEES
WERE INDICTED ON APRIL 21, 1970. 

THE SIXTH AMENDMENT PROVIDES THAT "(IN ALL CRIMINAL PROSECUTIONS,
THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL . . .
."  ON ITS FACE, THE PROTECTION OF THE AMENDMENT IS ACTIVATED ONLY WHEN
A CRIMINAL PROSECUTION HAS BEGUN AND EXTENDS ONLY TO THOSE PERSONS WHO
HAVE BEEN "ACCUSED" IN THE COURSE OF THAT PROSECUTION.  THESE
PROVISIONS WOULD SEEM TO AFFORD NO PROTECTION TO THOSE NOT YET ACCUSED,
NOR WOULD THEY SEEM TO REQUIRE THE GOVERNMENT TO DISCOVER, INVESTIGATE,
AND ACCUSE ANY PERSON WITHIN ANY PARTICULAR PERIOD OF TIME.  THE
AMENDMENT WOULD APPEAR TO GUARANTEE TO A CRIMINAL DEFENDANT THAT THE
GOVERNMENT WILL MOVE WITH THE DISPATCH THAT IS APPROPRIATE TO ASSURE
HIM AN EARLY AND PROPER DISPOSITION OF THE CHARGES AGAINST HIM.  "(THE
ESSENTIAL INGREDIENT IS ORDERLY EXPEDITION AND NOT MERE SPEED."  SMITH
V. UNITED STATES, 360 U.S. 1, 10 (1959). 

OUR ATTENTION IS CALLED TO NOTHING IN THE CIRCUMSTANCES SURROUNDING
THE ADOPTION OF THE AMENDMENT INDICATING THAT IT DOES NOT MEAN WHAT IT
APPEARS TO SAY, NOR IS THERE MORE THAN MARGINAL SUPPORT FOR THE
PROPOSITION THAT, AT THE TIME OF THE ADOPTION OF THE AMENDMENT, THE
PREVAILING RULE WAS THAT PROSECUTIONS WOULD NOT BE PERMITTED IF THERE
HAD BEEN LONG DELAY IN PRESENTING A CHARGE.  /6/  THE FRAMERS COULD
HARDLY HAVE SELECTED LESS APPROPRIATE LANGUAGE IF THEY HAD INTENDED THE
SPEEDY TRIAL PROVISION TO PROTECT AGAINST PRE-ACCUSATION DELAY.  NO
OPINIONS OF THIS COURT INTIMATE SUPPORT FOR APPELLEES' THESIS, /7/  AND
THE COURTS OF APPEALS THAT HAVE CONSIDERED THE QUESTION IN
CONSTITUTIONAL TERMS HAVE NEVER REVERSED A CONVICTION OR DISMISSED AN
INDICTMENT SOLELY ON THE BASIS OF THE SIXTH AMENDMENT'S SPEEDY TRIAL
PROVISION WHERE ONLY PRE-INDICTMENT DELAY WAS INVOLVED.  /8/ 

LEGISLATIVE EFFORTS TO IMPLEMENT FEDERAL AND STATE SPEEDY TRIAL
PROVISIONS ALSO PLAINLY REVEAL THE VIEW THAT THESE GUARANTEES ARE
APPLICABLE ONLY AFTER A PERSON HAS BEEN ACCUSED OF A CRIME.  THE COURT
HAS POINTED OUT THAT "(AT THE COMMON LAW AND IN THE ABSENCE OF SPECIAL
STATUTES OF LIMITATIONS THE MERE FAILURE TO FIND AN INDICTMENT WILL NOT
OPERATE TO DISCHARGE THE ACCUSED FROM THE OFFENSE NOR WILL A NOLLE
PROSEQUI ENTERED BY THE GOVERNMENT OR THE FAILURE OF THE GRAND JURY TO
INDICT."  UNITED STATES V. CADARR, 197 U.S. 475, 478 (1905).  SINCE IT
IS "DOUBTLESS TRUE THAT IN SOME CASES THE POWER OF THE GOVERNMENT HAD
BEEN ABUSED AND CHARGES HAVE BEEN KEPT HANGING OVER THE HEADS OF
CITIZENS, AND THEY HAVE BEEN COMMITTED FOR UNREASONABLE PERIODS,
RESULTING IN HARDSHIP," THE COURT NOTED THAT MANY STATES "(WITH A VIEW
TO PREVENTING SUCH WRONG TO THE CITIZEN . . . (AND) IN AID OF THE
CONSTITUTIONAL PROVISIONS, NATIONAL AND STATE, INTENDED TO SECURE TO
THE ACCUSED A SPEEDY TRIAL" HAD PASSED STATUTES LIMITING THE TIME
WITHIN WHICH SUCH TRIAL MUST OCCUR AFTER CHARGE OR INDICTMENT.  /9/
CHARACTERISTICALLY, THESE STATUTES TO WHICH THE COURT REFERRED ARE
TRIGGERED ONLY WHEN A CITIZEN IS CHARGED OR ACCUSED.  /10/  THE
STATUTES VARY GREATLY IN SUBSTANCE, STRUCTURE, AND INTERPRETATION, BUT
A COMMON DENOMINATOR IS THAT "(IN NO EVENT . . . (DOES) THE RIGHT TO
SPEEDY TRIAL ARISE BEFORE THERE IS SOME CHARGE OR ARREST, EVEN THOUGH
THE PROSECUTING AUTHORITIES HAD KNOWLEDGE OF THE OFFENSE LONG BEFORE
THIS."  NOTE, THE RIGHT TO A SPEEDY TRIAL, 57 COL.L.REV.  846, 848
(1957). 

NO FEDERAL STATUTE OF GENERAL APPLICABILITY HAS BEEN ENACTED BY
CONGRESS TO ENFORCE THE SPEEDY TRIAL PROVISION OF THE SIXTH AMENDMENT,
BUT FEDERAL RULE OF CRIMINAL PROCEDURE 48(B), WHICH HAS THE FORCE OF
LAW, AUTHORIZES DISMISSAL OF AN INDICTMENT, INFORMATION, OR COMPLAINT
"(IF THERE IS UNNECESSARY DELAY IN PRESENTING THE CHARGE TO A GRAND
JURY OR IN FILING AN INFORMATION AGAINST A DEFENDANT WHO HAS BEEN HELD
TO ANSWER TO THE DISTRICT COURT, OR IF THERE IS UNNECESSARY DELAY IN
BRINGING A DEFENDANT TO TRIAL . . . ."  THE RULE CLEARLY IS LIMITED TO
POST-ARREST SITUATIONS.  /11/

APPELLEES' POSITION IS, THEREFORE, AT ODDS WITH LONGSTANDING
LEGISLATIVE AND JUDICIAL CONSTRUCTIONS OF THE SPEEDY TRIAL PROVISIONS
IN BOTH NATIONAL AND STATE CONSTITUTIONS. 

        III 

IT IS APPARENT ALSO THAT VERY LITTLE SUPPORT FOR APPELLEES' POSITION
EMERGES FROM A CONSIDERATION OF THE PURPOSES OF THE SIXTH AMENDMENT'S
SPEEDY TRIAL PROVISION, A GUARANTEE THAT THIS COURT HAS TERMED "AN
IMPORTANT SAFEGUARD TO PREVENT UNDUE AND OPPRESSIVE INCARCERATION PRIOR
TO TRIAL, TO MINIMIZE ANXIETY AND CONCERN ACCOMPANYING PUBLIC
ACCUSATION AND TO LIMIT THE POSSIBILITIES THAT LONG DELAY WILL IMPAIR
THE ABILITY OF AN ACCUSED TO DEFEND HIMSELF."  UNITED STATES V. EWELL,
383 U.S. 116, 120 (1966); SEE ALSO KLOPFER V. NORTH CAROLINA, 386 U.S.
213, 221-226 (1967); DICKEY V. FLORIDA, 398 U.S. 30, 37-38 (1970). 
INORDINATE DELAY BETWEEN ARREST, INDICTMENT, AND TRIAL MAY IMPAIR A
DEFENDANT'S ABILITY TO PRESENT AN EFFECTIVE DEFENSE.  BUT THE MAJOR
EVILS PROTECTED AGAINST BY THE SPEEDY TRIAL GUARANTEE EXIST QUITE APART
FROM ACTUAL OR POSSIBLE PREJUDICE TO AN ACCUSED'S DEFENSE.  TO LEGALLY
ARREST AND DETAIN, THE GOVERNMENT MUST ASSERT PROBABLE CAUSE TO BELIEVE
THE ARRESTEE HAS COMMITTED A CRIME.  ARREST IS A PUBLIC ACT THAT MAY
SERIOUSLY INTERFERE WITH THE DEFENDANT'S LIBERTY, WHETHER HE IS FREE ON
BAIL OR NOT, AND THAT MAY DISRUPT HIS EMPLOYMENT, DRAIN HIS FINANCIAL
RESOURCES, CURTAIL HIS ASSOCIATIONS, SUBJECT HIM TO PUBLIC OBLOQUY, AND
CREATE ANXIETY IN HIM, HIS FAMILY AND HIS FRIENDS.  THESE
CONSIDERATIONS WERE SUBSTANTIAL UNDERPINNINGS FOR THE DECISION IN
KLOPFER V. NORTH CAROLINA, SUPRA; SEE ALSO SMITH V. HOOEY, 393 U.S.
374, 377-378 (1969).  SO VIEWED, IT IS READILY UNDERSTANDABLE THAT IT
IS EITHER A FORMAL INDICTMENT OR INFORMATION OR ELSE THE ACTUAL
RESTRAINTS IMPOSED BY ARREST AND HOLDING TO ANSWER A CRIMINAL CHARGE
THAT ENGAGE THE PARTICULAR PROTECTIONS OF THE SPEEDY TRIAL PROVISION OF
THE SIXTH AMENDMENT. 

INVOCATION OF THE SPEEDY TRIAL PROVISION THUS NEED NOT AWAIT
INDICTMENT, INFORMATION, OR OTHER FORMAL CHARGE.  /12/  BUT WE DECLINE
TO EXTEND THE REACH OF THE AMENDMENT TO THE PERIOD PRIOR TO ARREST. 
UNTIL THIS EVENT OCCURS, A CITIZEN SUFFERS NO RESTRAINTS ON HIS LIBERTY
AND IS NOT THE SUBJECT OF PUBLIC ACCUSATION:  HIS SITUATION DOES NOT
COMPARE WITH THAT OF A DEFENDANT WHO HAS BEEN ARRESTED AND HELD TO
ANSWER.  PASSAGE OF TIME, WHETHER BEFORE OR AFTER ARREST, MAY IMPAIR
MEMORIES, CAUSE EVIDENCE TO BE LOST, DEPRIVE THE DEFENDANT OF
WITNESSES, AND OTHERWISE INTERFERE WITH HIS ABILITY TO DEFEND HIMSELF. 
/13/  BUT THIS POSSIBILITY OF PREJUDICE AT TRIAL IS NOT ITSELF
SUFFICIENT REASON TO WRENCH THE SIXTH AMENDMENT FROM ITS PROPER
CONTEXT.  POSSIBLE PREJUDICE IS INHERENT IN ANY DELAY, HOWEVER SHORT;
IT MAY ALSO WEAKEN THE GOVERNMENT'S CASE. 

THE LAW HAS PROVIDED OTHER MECHANISMS TO GUARD AGAINST POSSIBLE AS
DISTINGUISHED FROM ACTUAL PREJUDICE RESULTING FROM THE PASSAGE OF TIME
BETWEEN CRIME AND ARREST OR CHARGE.  AS WE SAID IN UNITED STATES V.
EWELL, SUPRA, AT 122, "THE APPLICABLE STATUTE OF LIMITATIONS . . . IS .
. . THE PRIMARY GUARANTEE AGAINST BRINGING OVERLY STALE CRIMINAL
CHARGES."  SUCH STATUTES REPRESENT LEGISLATIVE ASSESSMENTS OF RELATIVE
INTERESTS OF THE STATE AND THE DEFENDANT IN ADMINISTERING AND RECEIVING
JUSTICE; THEY "ARE MADE FOR THE REPOSE OF SOCIETY AND THE PROTECTION OF
THOSE WHO MAY (DURING THE LIMITATION) . . . HAVE LOST THEIR MEANS OF
DEFENCE."  PUBLIC SCHOOLS V. WALKER, 9 WALL.  282, 288 (1870).  THESE
STATUTES PROVIDE PREDICTABILITY BY SPECIFYING A LIMIT BEYOND WHICH
THERE IS AN IRREBUTTABLE PRESUMPTION THAT A DEFENDANT'S RIGHT TO A FAIR
TRIAL WOULD BE PREJUDICED.  /14/  AS THIS COURT OBSERVED IN TOUSSIE V.
UNITED STATES, 397 U.S. 112, 114-115 (1970):    "THE PURPOSE OF A
STATUTE OF LIMITATIONS IS TO LIMIT EXPOSURE TO CRIMINAL PROSECUTION TO
A CERTAIN FIXED PERIOD OF TIME FOLLOWING THE OCCURRENCE OF THOSE ACTS
THE LEGISLATURE HAS DECIDED TO PUNISH BY CRIMINAL SANCTIONS.  SUCH A
LIMITATION IS DESIGNED TO PROTECT INDIVIDUALS FROM HAVING TO DEFEND
THEMSELVES AGAINST CHARGES WHEN THE BASIC FACTS MAY HAVE BECOME
OBSCURED BY THE PASSAGE OF TIME AND TO MINIMIZE THE DANGER OF OFFICIAL
PUNISHMENT BECAUSE OF ACTS IN THE FAR-DISTANT AST.  SUCH A TIME LIMIT
MAY ALSO HAVE THE SALUTARY EFFECT OF ENCOURAGING LAW ENFORCEMENT
OFFICIALS PROMPTLY TO INVESTIGATE SUSPECTED CRIMINAL ACTIVITY."  THERE
IS THUS NO NEED TO PRESS THE SIXTH AMENDMENT INTO SERVICE TO GUARD
AGAINST THE MERE POSSIBILITY THAT PRE-ACCUSATION DELAYS WILL PREJUDICE
THE DEFENSE IN A CRIMINAL CASE SINCE STATUTES OF LIMITATION ALREADY
PERFORM THAT FUNCTION. 

SINCE APPELLEES RELY ONLY ON POTENTIAL PREJUDICE AND THE PASSAGE OF
TIME BETWEEN THE ALLEGED CRIME AND THE INDICTMENT, SEE PART IV, INFRA,
WE PERHAPS NEED GO NO FURTHER TO DISPOSE OF THIS CASE, FOR THE
INDICTMENT WAS THE FIRST OFFICIAL ACT DESIGNATING APPELLEES AS ACCUSED
INDIVIDUALS AND THAT EVENT OCCURRED WITHIN THE STATUTE OF LIMITATIONS. 
/15/  NEVERTHELESS, SINCE A CRIMINAL TRIAL IS THE LIKELY CONSEQUENCE OF
OUR JUDGMENT AND SINCE APPELLEES MAY CLAIM ACTUAL PREJUDICE TO THEIR
DEFENSE, IT IS APPROPRIATE TO NOTE HERE THAT THE STATUTE OF LIMITATIONS
DOES NOT FULLY DEFINE THE APPELLEES' RIGHTS WITH RESPECT TO THE EVENTS
OCCURRING PRIOR TO INDICTMENT.  THUS, THE GOVERNMENT CONCEDES THAT THE
DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT WOULD REQUIRE DISMISSAL OF
THE INDICTMENT IF IT WERE SHOWN AT TRIAL THAT THE PRE-INDICTMENT DELAY
IN THIS CASE CAUSED SUBSTANTIAL PREJUDICE TO APPELLEES' RIGHTS TO A
FAIR TRIAL AND THAT THE DELAY WAS AN INTENTIONAL DEVICE TO GAIN
TACTICAL ADVANTAGE OVER THE ACCUSED.  /16/ CF. BRADY V. MARYLAND, 373
U.S. 83 (1963); NAPUE V. ILLINOIS, 360 U.S. 264 (1959).  HOWEVER, WE
NEED NOT, AND COULD NOT NOW, DETERMINE WHEN AND IN WHAT CIRCUMSTANCES
ACTUAL PREJUDICE RESULTING FROM PRE-ACCUSATION DELAYS REQUIRES THE
DISMISSAL OF THE PROSECUTION.  /17/  ACTUAL PREJUDICE TO THE DEFENSE OF
A CRIMINAL CASE MAY RESULT FROM THE SHORTEST AND MOST NECESSARY DELAY;
AND NO ONE SUGGESTS THAT EVERY DELAY-CAUSED DETRIMENT TO A DEFENDANT'S
CASE SHOULD ABORT A CRIMINAL PROSECUTION.  /18/  TO ACCOMMODATE THE
SOUND ADMINISTRATION OF JUSTICE TO THE RIGHTS OF THE DEFENDANT TO A
FAIR TRIAL WILL NECESSARILY INVOLVE A DELICATE JUDGMENT BASED ON THE
CIRCUMSTANCES OF EACH CASE.  IT WOULD BE UNWISE AT THIS JUNCTURE TO
ATTEMPT TO FORECAST OUR DECISION IN SUCH CASES. 

        IV 

IN THE CASE BEFORE US, NEITHER APPELLEE WAS ARRESTED, CHARGED, OR
OTHERWISE SUBJECTED TO FORMAL RESTRAINT PRIOR TO INDICTMENT.  IT WAS
THIS EVENT, THEREFORE, THAT TRANSFORMED THE APPELLEES INTO "ACCUSED"
DEFENDANTS WHO ARE SUBJECT TO THE SPEEDY TRIAL PROTECTIONS OF THE SIXTH
AMENDMENT. 

THE 38-MONTH DELAY BETWEEN THE END OF THE SCHEME CHARGED IN THE
INDICTMENT AND THE DATE THE DEFENDANTS WERE INDICTED DID NOT EXTEND
BEYOND THE PERIOD OF THE APPLICABLE STATUTE OF LIMITATIONS HERE. 
APPELLEES HAVE NOT, OF COURSE, BEEN ABLE TO CLAIM UNDUE DELAY PENDING
TRIAL, SINCE THE INDICTMENT WAS BROUGHT ON APRIL 21, 1970, AND
DISMISSED ON JUNE 8, 1970.  NOR HAVE APPELLEES ADEQUATELY DEMONSTRATED
THAT THE PRE-INDICTMENT DELAY BY THE GOVERNMENT VIOLATED THE DUE
PROCESS CLAUSE.  NO ACTUAL PREJUDICE TO THE CONDUCT OF THE DEFENSE IS
ALLEGED OR PROVED, AND THERE IS NO SHOWING THAT THE GOVERNMENT
INTENTIONALLY DELAYED TO GAIN SOME TACTICAL ADVANTAGE OVER APPELLEES OR
TO HARASS THEM.  APPELLEES RELY SOLELY ON THE REAL POSSIBILITY OF
PREJUDICE INHERENT IN ANY EXTENDED DELAY:  THAT MEMORIES WILL DIM,
WITNESSES BECOME INACCESSIBLE, AND EVIDENCE BE LOST.  IN LIGHT OF THE
APPLICABLE STATUTE OF LIMITATIONS, HOWEVER, THESE POSSIBILITIES ARE NOT
IN THEMSELVES ENOUGH TO DEMONSTRATE THAT APPELLEES CANNOT RECEIVE A
FAIR TRIAL AND TO THEREFORE JUSTIFY THE DISMISSAL OF THE INDICTMENT. 
EVENTS OF THE TRIAL MAY DEMONSTRATE ACTUAL PREJUDICE, BUT AT THE
PRESENT TIME APPELLEES' DUE PROCESS CLAIMS ARE SPECULATIVE AND
PREMATURE. 

              REVERSED. 

/1/  APP. 39.  THE COURT'S ORAL DECISION CONSISTED OF THE FOLLOWING
STATEMENT:  "IT APPEARS TO THE COURT THAT THE MATTERS COMPLAINED OF
OCCURRED BETWEEN MARCH 1965 AND JANUARY 1966.  IT FURTHER APPEARS THAT
THESE MATTERS WERE KNOWN FROM EARLY 1967 OR A MATTER OF COMMON
KNOWLEDGE IN LATE 1967.  THERE APPEARS NO REASON WHY A THREE-YEAR DELAY
FROM 1967 WAS JUSTIFIED BY THE NECESSITY OF RESEARCH AND EXAMINATION
DELVING INTO THE VARIOUS TRANSACTIONS, THEY COULD HAVE BEEN DISCOVERED
AND HANDLED MUCH, MUCH SOONER, CERTAINLY PROBABLY DURING THE YEAR 1967
OR AT THE LATEST EARLY 1968. 

"THE DEFENDANTS HAVE BEEN INDICTED ON 19 COUNTS, EACH OF WHICH I
BELIEVE CARRIES A TEN-YEAR SENTENCE, EACH OF WHICH IS A SEPARATE,
DISTINCT TRANSACTION WHICH WOULD JUSTIFY CONSECUTIVE SENTENCES, AND BY
THE VERY NATURE OF THIS OUTRAGEOUS SCHEME IF THE ALLEGATIONS COULD BE
BELIEVED, THE ABILITY TO REMEMBER, TO BUILD UP IN ONE'S RECOLLECTION,
TO PRODUCE THE NECESSARY DEFENSE, IS BOUND TO HAVE BEEN SERIOUSLY
PREJUDICED BY THE DELAY OF AT LEAST SOME THREE YEARS IN BRINGING THE
PROSECUTION THAT SHOULD HAVE BEEN BROUGHT IN 1967, OR AT THE VERY
LATEST EARLY 1968. 

"THE COURT, THEREFORE, VIEWS THAT THERE HAS BEEN A LACK OF SPEEDY
PROSECUTION IN THIS CASE, AND WILL GRANT THE MOTION TO DISMISS." 
IBID. 

/2/  THE CRIMINAL APPEALS ACT, 18 U.S.S. 3731 (1964 ED., SUPP. V),
AT THE TIME OF THIS APPEAL, PROVIDED IN RELEVANT PART: 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED STATES IN
ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES:

        .        .          .          . 

"FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY." 

THE OMNIBUS CRIME CONTROL ACT OF 1970, SEC. 14(A), 84 STAT. 1890,
AMENDED THE CRIMINAL APPEALS ACT TO READ IN PERTINENT PART AS FOLLOWS: 

"IN A CRIMINAL CASE AN APPEAL BY THE UNITED STATES SHALL LIE TO A
COURT OF APPEALS FROM A DECISION, JUDGMENT, OR ORDER OF A DISTRICT
COURT DISMISSING AN INDICTMENT OR INFORMATION AS TO ANY ONE OR MORE
COUNTS, EXCEPT THAT NO APPEAL SHALL LIE WHERE THE DOUBLE JEOPARDY
CLAUSE OF THE UNITED STATES CONSTITUTION PROHIBITS FURTHER
PROSECUTION." 

THIS AMENDMENT THUS TERMINATED THE COURT'S APPELLATE JURISDICTION OF
GOVERNMENT APPEALS FROM DISTRICT COURT JUDGMENTS IN FEDERAL CRIMINAL
CASES.  PENDING CASES WERE NOT AFFECTED BY THE AMENDMENT, HOWEVER,
SINCE SUBSECTION (B) OF SEC. 14 PROVIDES: 

"THE AMENDMENTS MADE BY THIS SECTION SHALL NOT APPLY WITH RESPECT TO
ANY CRIMINAL CASE BEGUN IN ANY DISTRICT COURT BEFORE THE EFFECTIVE DATE
OF THIS SECTION." 

THE OMNIBUS CRIME CONTROL ACT OF 1970 TOOK EFFECT ON JANUARY 2,
1971; THE APPELLEES IN THIS CASE WERE INDICTED ON APRIL 21, 1970. 

/3/  401 U.S. 934 (1971). 

/4/  RULE 48(B) PROVIDES THAT: "IF THERE IS UNNECESSARY DELAY IN
PRESENTING THE CHARGE TO A GRAND JURY OR IN FILING AN INFORMATION
AGAINST A DEFENDANT WHO HAS BEEN HELD TO ANSWER TO THE DISTRICT COURT,
OR IF THERE IS UNNECESSARY DELAY IN BRINGING A DEFENDANT TO TRIAL, THE
COURT MAY DISMISS THE INDICTMENT, INFORMATION OR COMPLAINT."  IN ANY
EVENT, IT IS DOUBTFUL THAT RULE 48(B) APPLIES IN THE CIRCUMSTANCES OF
THIS CASE, WHERE THE INDICTMENT WAS THE FIRST FORMAL ACT IN THE
CRIMINAL PROSECUTION OF THESE APPELLEES.  SEE CASES CITED IN N. 11,
INFRA. 

/5/  THE HISTORY OF THE SPEEDY TRIAL PROVISION IS SPARSE AND
UNILLUMINATING WITH RESPECT TO THE ISSUE BEFORE US.  SEE F. HELLER, THE
SIXTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES 31-32, 34
(1951); R. RUTLAND, THE BIRTH OF THE BILL OF RIGHTS, 1776-1791, P. 202
(1955); I. BRANT, THE BILL OF RIGHTS 223 (1965); DUMBAULD, STATE
PRECEDENTS FOR THE BILL OF RIGHTS, 7 J.PUB.L. 323, 335 N. 91 (1958);
NOTE, THE RIGHT TO A SPEEDY TRIAL, 20 STAN.L.REV.  476, 484 (1968). 

/6/  A SINGLE CASE THAT ANTEDATES THE BILL OF RIGHTS, REX V.
ROBINSON, 1 BLACK.W. 541, 96 ENG.REP.  313 (K.B. 1765), AND THREE 19TH
CENTURY BRITISH CASES, REX V. MARSHALL, 13 EAST 322, 104 ENG.REP.  394
(K.B. 1811); REGINA V. HEXT, 4 JURIST 339 (W.B. 1840); REGINA V.
ROBINS, 1 COX'S C.C. 114 (SOMERSET WINTER ASSIZES 1844), ARE CITED FOR
THE PROPOSITION THAT THE FRAMERS INTENDED TO PROTECT AGAINST PRE
INDICTMENT DELAY BY ENACTING THE SIXTH AMENDMENT.  THESE CASES FAIL TO
ESTABLISH A DEFINITE RULE THAT THE FOUNDERS SOUGHT TO
CONSTITUTIONALIZE, HOWEVER, AND THE GOVERNMENT'S ARGUMENT CONCERNING
THE HISTORY OF THE SIXTH AMENDMENT, WHILE NOT DISPOSITIVE, IS MORE
PERSUASIVE.  BRIEF FOR THE UNITED STATES 15-18.  THE GOVERNMENT POINTS
OUT THAT THE HABEAS CORPUS ACT OF 1679, 31 CAR.  2, C. 2, PROVIDED FOR
"MORE SPEEDY RELIEF OF ALL PERSONS IMPRISONED FOR ANY SUCH CRIMINAL OR
SUPPOSED CRIMINAL MATTERS" AND REQUIRED THAT PERSONS JAILED FOR
FELONIES OR TREASON BE BROUGHT TO TRIAL UPON THEIR OWN MOTION WITHIN
TWO TERMS OF COURT OR BE DISCHARGED ON BAIL.  THE ACT DOES NOT ALLUDE
TO DELAY BEFORE ARREST.  MOST OF THE STATES THAT RATIFIED THE BILL OF
RIGHTS HAD EITHER ADOPTED THE BRITISH ACT OR PASSED A SIMILAR LAW,
PETITION OF PROVOO, 17 F.R.D. 183, 197 N. 6 (MD.), AFF'D SUB NOM.
UNITED STATES V. PROVOO, 350 U.S. 857 (1955), AND MANY OF THEM HAD
SPEEDY TRIAL PROVISIONS IN THEIR OWN CONSTITUTIONS WHICH WERE MODELED
ON THE BRITISH ACT.  ARTICLE 8 OF THE VIRGINIA DECLARATION OF RIGHTS,
WHICH MAY HAVE BEEN THE MODEL MADISON USED FOR THE SIXTH AMENDMENT,
RUTLAND, SUPRA, N. 5, AT 202, SECURED THE RIGHT TO A SPEEDY TRIAL IN
"CRIMINAL PROSECUTIONS" WHERE "A MAN HATH A RIGHT TO DEMAND THE CAUSE
AND NATURE OF HIS ACCUSATION."  SEE GENERALLY HELLER, SUPRA, N. 5, AT
23.  INSOFAR AS THIS MEAGER EVIDENCE IS PROBATIVE AT ALL, IT SEEMS TO
IMPLY THAT THE SIXTH AMENDMENT WAS DESIGNED TO ASSURE THAT THOSE
ACCUSED OF CRIMES WOULD HAVE THEIR TRIAL WITHOUT UNDUE DELAY. 

/7/  THIS COURT HAS INTERPRETED THE SIXTH AMENDMENT'S SPEEDY TRIAL
GUARANTEE IN ONLY A SMALL NUMBER OF CASES.  SEE, E.G., DICKEY V.
FLORIDA, 398 U.S. 30 (1970); SMITH V. HOOEY, 393 U.S. 374 (1969);
KLOPFER V. NORTH CAROLINA, 386 U.S. 213 (1967); UNITED STATES V. EWELL,
383 U.S. 116 (1966); POLLARD V. UNITED STATES, 352 U.S. 354 (1957);
UNITED STATES V. PROVOO, SUPRA, N. 6; BEAVERS V. HAUBERT, 198 U.S. 77
(1905).  SEE ALSO SMITH V. UNITED STATES, 360 U.S. 1, 10 (1959). 

/8/  MOST COURTS OF APPEALS HAVE RECOGNIZED THE SIXTH AMENDMENT
RIGHT TO A SPEEDY TRIAL ONLY AFTER A PROSECUTION HAS BEEN FORMALLY
INITIATED OR HAVE HELD THAT THE SOLE SAFEGUARD AGAINST PRE-INDICTMENT
DELAY IS THE RELEVANT STATUTE OF LIMITATIONS:  UNITED STATES V.
FEINBERG, 383 F.2D 60, 65 (CA2 1967); CARLO V. UNITED STATES, 286 F.2D
841, 846 (CA2), CERT. DENIED, 366 U.S. 944 (1961); PITTS V. NORTH
CAROLINA, 395 F.2D 182, 185 N. 3 (CA4 1968); UNITED STATES V. DURHAM,
413 F.2D 1003, 1004 (CA5 1969); KROLL V. UNITED STATES, 433 F.2D 1282,
1286 (CA5 1970), CERT. DENIED, 402 U.S. 944 (1971); UNITED STATES V.
GRAYSON, 416 F2D 1073, 1076-1077 (CA5 1969); UNITED STATES V. WILSON,
342 F.2D 782, 783 (CA5), CERT. DENIED, 382 U.S. 860 (1965); DONNELL V.
UNITED STATES, 229 F.2D 560, 567 (CA5 1956); HARLOW V. UNITED STATES,
301 F.2D 361, 366 (CA5), CERT. DENIED, 371 U.S. 814 (1962); BRUCE V.
UNITED STATES, 351 F.2D 318, 320 (CA5 1965), CERT. DENIED, 384 U.S. 921
(1966); HOOPENGARNER V. UNITED STATES, 270 F.2D 465, 469 (CA6 1959);
UNITED STATES V. HARRIS, 412 F.2D 471, 473 (CA6 1969); LOTHRIDGE V.
UNITED STATES, 441 F.2D 919, 922 (CA6 1971); PARKER V. UNITED STATES,
252 F.2D 680, 681 (CA6), CERT. DENIED, 356 U.S. 964 (1958); EDMAISTON
V. NEIL, 452 F.2D 494 (CA6 1971); UNITED STATES V. PANCZKO, 367 F.2D
737, 738-739 (CA7 1966); TERLIKOWSKI V. UNITED STATES 379 F.2D 501, 504
(CA8), CERT. DENIED, 389 U.S. 1008 (1967); FOLEY V. UNITED STATES, 290
F.2D 562, 565 (CA8 1961); BENSON V. UNITED STATES, 402 F.2D 576, 579
(CA9 1968); VENUS V. UNITED STATES, 287 F.2D 304, 307 (CA9 1960), REV'D
PER CURIAM ON OTHER GROUNDS, 368 U.S. 345 (1961); D'AQUINO V. UNITED
STATES, 192 F.2D 338, 350 (CA9 1951), CERT. DENIED, 343 U.S. 935
(1952); UNITED STATES V. REED, 413 F.2D 338, 340 (CA10 1969), CERT.
DENIED SUB NOM.  SARTAIN V. UNITED STATES, 397 U.S. 954 (1970); NICKENS
V. UNITED STATES, 116 U.S.APP.D.C. 338, 340, 323 F.2D 808, 810 (1963),
CERT. DENIED, 379 U.S. 905 (1964).  SOME COURTS OF APPEALS HAVE STATED
THAT PRE-INDICTMENT DELAY MAY BE CAUSE FOR DISMISSAL BUT THEY HAVE
SEEMED TO TREAT THE QUESTION PRIMARILY AS ONE OF DUE PROCESS (ALTHOUGH
THE (SIXTH AMENDMENT IS OCCASIONALLY MENTIONED) AND HAVE REQUIRED A
SHOWING OF ACTUAL PREJUDICE:  SCHLINSKY V. UNITED STATES, 379 F.2D 735,
737 (CA1 1967); FLEMING V. UNITED STATES, 378 F.2D 502, 504 (CA1 1967);
UNITED STATES V. CAPALDO, 402 F.2D 821, 823 (CA2 1968), CERT. DENIED,
394 U.S. 989 (1969); UNITED STATES V. SIMMONS, 338 F.2D 804, 806 (CA2
1964), CERT. DENIED, 380 U.S. 983 (1965); UNITED STATES V. HOLIDAY, 319
F.2D 775, 776 (CA2 1963); UNITED STATES V. HAMMOND, 360 F.2D 688, 689,
(CA2 1966); UNITED STATES V. DICKERSON, 347 F.2D 783, 784 (CA2 1965);
UNITED STATES V. RIVERA, 346 F.2D 942, 943 (CA2 1965); UNITED STATES V.
SANCHEZ, 361 F.2D 824, 825 (CA2 1966); UNITED STATES V. HARBIN, 377
F.2D 78, 79, 80 N. 1 (CA4 1967); UNITED STATES V. LEE, 413 F.2D 910,
912-913 (CA7 1969), CERT. DENIED, 396 U.S. 1022 (1970); UNITED STATES
V. NAPUE, 401 F.2D 107, 114-115 (CA7 1968), CERT. DENIED, 393 U.S. 1024
(1969); LUCAS V. UNITED STATES, 363 F.2D 500, 502 (CA9 1966); SANCHEZ
V. UNITED STATES, 341 F.2D 225, 228 N. 3 (CA9), CERT. DENIED, 382 U.S.
856 (1965); ACREE V. UNITED STATES 418 F.2D 427, 430 (CA10 1969). 
ALTHOUGH PETITION OF PROVOO, 17 F.R.D. 183 (MD.), AFF'D SUB NOM. UNITED
STATES V. PROVOO, 350 U.S. 857 (1955), IS SOMETIMES CITED FOR THE
PROPOSITION THAT PRE-INDICTMENT DELAY WILL JUSTIFY DISMISSAL, THE
DISTRICT COURT EXPLICITLY STATED THAT IT CONSIDERED THIS DELAY TO BE
RELEVANT ONLY ON THE ISSUE OF WHETHER THE DEFENDANT HAD BEEN DENIED A
FAIR TRIAL.  17 F.R.D., AT 202.  IN TAYLOR V. UNITED STATES, 99
U.S.APP.D.C. 183, 238 F.2D 259 (1956), A CONVICTION WAS VACATED WHERE
THERE HAD BEEN A SIX-YEAR DELAY BETWEEN THE CRIME (HOUSEBREAKING) AND
TRIAL, 3 1/2 YEARS OF WHICH WAS A DELAY BETWEEN CRIME AND INDICTMENT;
THE DEFENDANT HAD BEEN IN PRISON ON ANOTHER CHARGE DURING THIS TIME,
AND THE DEFENDANT WAS SUBSTANTIALLY PREJUDICED IN HIS ABILITY TO DEFEND
AGAINST THE HOUSEBREAKING CHARGE.  THE COURT OF APPEALS STATED:  "WE DO
NOT RELY ON THE MERE LAPSE OF TIME BETWEEN THE COMMISSION OF THE
OFFENSES AND THE DATE OF INDICTMENT, CONSIDERED BY ITSELF, FOR THAT IS
GOVERNED BY THE STATUTE OF LIMITATIONS.  IT IS THE COMBINATION OF THE
FACTORS SET FORTH ABOVE (POST-INDICTMENT DELAY, PREJUDICE) WHICH
MOTIVATES OUR DECISION."  ID., AT 186, 238 F.2D, AT 262.  IN THREE
INSTANCES DISTRICT COURTS HAVE HELD, HOWEVER, THAT "DELAY" FOR SIXTH
AMENDMENT PURPOSES MUST BE COMPUTED FROM THE TIME OF THE CRIME OR FROM
THE TIME WHEN THE GOVERNMENT CONSIDERS THE DEFENDANTS' ACTIONS
CRIMINAL, AND HAVE DISMISSED INDICTMENTS FOR EXCESSIVE DELAY.  UNITED
STATES V. PARROTT, 248 F.SUPP.  196 (DC 1965); UNITED STATES V. WAHRER,
319 F.SUPP.  585 (ALASKA 1970); UNITED STATES V. BURKE, 224 F.SUPP.  41
(DC 1963).  THERE IS A UNIQUE LINE OF CASES IN THE DISTRICT OF COLUMBIA
CIRCUIT CONCERNING PRE-INDICTMENT DELAY IN NARCOTICS CASES WHERE THE
GOVERNMENT RELIES ON SECRET INFORMERS AND (FREQUENTLY) ON SINGLE
TRANSACTIONS.  THESE CASES TAKE A MORE RIGID STANCE AGAINST SUCH
DELAYS, BUT THEY ARE BASED ON THE COURT OF APPEALS' PURPORTED
SUPERVISORY JURISDICTION AND NOT ON THE SIXTH AMENDMENT.  SEE, E.G.,
ROSS V. UNITED STATES, 121 U.S.APP.D.C. 233, 238, 349 F.2D 210, 215
(1965); BEY V. UNITED STATES, 121 U.S.APP.D.C. 337, 350 F.2D 467
(1965); POWELL V. UNITED STATES, 122 U.S.APP.D.C. 229, 231, 352 F.2D
705, 707 (1965); TYNAN V. UNITED STATES, 126 U.S.APP.D.C. 206, 208, 376
F.2D 761, 763 (1967) (EXPLICITLY LIMITING ROSS). 

/9/  THE PROVISION THE COURT DEALT WITH IN CADARR WAS SEC. 939 OF
THE THEN DISTRICT OF COLUMBIA CODE ADOPTED BY CONGRESS, 31 STAT. 1342. 
THAT SECTION PROVIDED THAT IF ANY PERSON "CHARGED WITH A CRIMINAL
OFFENSE SHALL HAVE BEEN COMMITTED OR HELD TO BAIL," THE GRAND JURY MUST
ACT WITHIN A SPECIFIED TIME OR THE ACCUSED WOULD BE SET FREE.  THE
PROVISION REMAINS IN THE PRESENT CODE AS SEC. 23-102, 84 STAT. 605, AND
THEN, AS NOW, DOES NOT PURPORT TO REACH BEHIND THE TIME OF CHARGE,
COMMITMENT, OR HOLDING FOR BAIL. 

/10/  SEE, E.G., ILL. REV. STAT., C. 38, SEC. 103-5(A) (1969); PA.
STAT. ANN., TIT. 19, SEC. 781 (1964); CAL. PEN.  CODE SEC. 1382 (1970);
VA. CODE ANN. SEC. 19.1-191 (1960); NEV. REV. STAT. SEC. 178.556
(1967).  A MORE COMPREHENSIVE LIST OF SUCH STATE STATUTES APPEARS IN
AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE,
SPEEDY TRIAL 14-15 (APPROVED DRAFT 1968).  THE ADMINISTRATIVE BOARD OF
THE JUDICIAL CONFERENCE OF THE STATE OF NEW YORK RECENTLY PROMULGATED
RULES ON TRIAL DELAY AND DETENTION WHICH COVER DEFENDANTS WHO ARE "HELD
IN CUSTODY" AND WHICH BEGIN COMPUTATION OF DELAY PERIODS FROM THE DATE
OF ARREST.  RULE 29.1, NEW YORK LAW JOURNAL, APRIL 30, 1971, P. 1, COL.
6.  SEE GENERALLY NOTE, THE RIGHT TO A SPEEDY TRIAL, 20 STAN.L.REV. 
476 (1968); NOTE, PRE-ARREST DELAY:  EVOLVING DUE PROCESS STANDARDS, 43
N.Y.U.L.REV.722 (1968); NOTE, CONSTITUTIONAL LIMITS ON PRE-ARREST
DELAY, 51 IOWA L.REV.  670 (1966); NOTE, THE LAGGING RIGHT TO A SPEEDY
TRIAL, 51 VA.L.REV.  1587 (1965); NOTE, JUSTICE OVERDUE-- SPEEDY TRIAL
FOR THE POTENTIAL DEFENDANT, 5 STAN.L.REV.  95 (1952). 

THE RULES THAT THE SECOND CIRCUIT EN BANC RECENTLY ADOPTED IN UNITED
STATES EX REL. FRIZER V. MCMANN, 437 F.2D 1312 (CA2 1971), WHICH APPEAR
IN APPENDIX, 28 U.S.C.A. (MAY 1971 SUPP.), REQUIRE TRIAL WITHIN A
SPECIFIED PERIOD BUT APPLY TO "ALL PERSONS HELD IN JAIL PRIOR TO TRIAL"
AND "DEFENDANTS" IN "ALL OTHER CRIMINAL CASES."  RULE 2.  RULE 4
PROVIDES THAT:  "IN ALL CASES THE GOVERNMENT MUST BE READY FOR TRIAL
WITHIN SIX MONTHS FROM THE DATE OF THE ARREST, SERVICE OF SUMMONS,
DETENTION, OR THE FILING OF A COMPLAINT OR OF A FORMAL CHARGE UPON
WHICH THE DEFENDANT IS TO BE TRIED (OTHER THAN A SEALED INDICTMENT),
WHICHEVER IS EARLIEST."  SEE GENERALLY COMMENT, SPEEDY TRIALS AND THE
SECOND CIRCUIT RULES REGARDING PROMPT DISPOSITION OF CRIMINAL CASES, 71
COL.L.REV.  1059 (1971). 

CF. ALSO S. 895, 92D CONG., 1ST SESS., A BILL INTENDED "(TO GIVE
EFFECT TO THE SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL FOR PERSONS
CHARGED WITH OFFENSES AGAINST THE UNITED STATES."  THE PROTECTIONS OF
THE BILL ARE ENGAGED "WITHIN SIXTY DAYS FROM THE DATE THE DEFENDANT IS
ARRESTED OR A SUMMONS IS ISSUED, EXCEPT THAT IF AN INFORMATION OR
INDICTMENT IS FILED, THEN WITHIN SIXTY DAYS FROM THE DATE OF SUCH
FILING."  SEC. 3161(B)(1). 

/11/  NICKENS V. UNITED STATES, SUPRA, AT 339, 323 F.2D,AT 809; HARLOW
V. UNITED STATES, SUPRA; HOOPENGARNER V. UNITED STATES, SUPRA; UNITED
STATES V. HOFFA, 205 F.SUPP.710, 720-721 (SD FLA. 1962). 

/12/  IN ITS STANDARDS RELATING TO SPEEDY TRIAL, N. 10, SUPRA, AT 6,
THE ABA DEFINED THE TIME AT WHICH THE BEGINNING OF THE DELAY PERIOD
SHOULD BE COMPUTED AS "THE DATE THE CHARGE IS FILED, EXCEPT THAT IF THE
DEFENDANT HAS BEEN CONTINUOUSLY HELD IN CUSTODY OR ON BAIL OR
RECOGNIZANCE UNTIL THAT DATE TO ANSWER FOR THE SAME CRIME OR A CRIME
BASED ON THE SAME CONDUCT OR ARISING FROM THE SAME CRIMINAL EPISODE,
THEN THE TIME FOR TRIAL SHOULD COMMENCE RUNNING FROM THE DATE HE WAS
HELD TO ANSWER."  RULE 2.2(A). 

UNDER THE ABA STANDARDS, AFTER A DEFENDANT IS CHARGED, IT IS
CONTEMPLATED THAT HIS RIGHT TO A SPEEDY TRIAL WOULD BE MEASURED BY A
STATUTORY TIME PERIOD EXCLUDING NECESSARY AND OTHER JUSTIFIABLE DELAY;
THERE IS NO NECESSITY TO ALLEGE OR SHOW PREJUDICE TO THE DEFENSE.  RULE
2.1, IBID. 

/13/  EXTENDING A SIXTH AMENDMENT RIGHT TO A PERIOD PRIOR TO
INDICTMENT OR HOLDING TO ANSWER WOULD ALSO CREATE PROCEDURAL PROBLEMS:
"(WHILE OTHER RIGHTS MAY BE VIOLATED BY DELAY IN ARREST OR CHARGE, IT
DOES NOT FOLLOW THAT THE TIME FOR TRIAL SHOULD BE COUNTED FROM ANY DATE
OF INACTION PRECEDING FILING OF THE CHARGE OR HOLDING THE DEFENDANT TO
ANSWER.  TO RECOGNIZE A GENERAL SPEEDY TRIAL RIGHT COMMENCING AS OF THE
TIME ARREST OR CHARGING WAS POSSIBLE WOULD HAVE UNFORTUNATE
CONSEQUENCES FOR THE OPERATION OF THE CRIMINAL JUSTICE SYSTEM. 
ALLOWING INQUIRY INTO WHEN THE POLICE COULD HAVE ARRESTED OR WHEN THE
PROSECUTOR COULD HAVE CHARGED WOULD RAISE DIFFICULT PROBLEMS OF PROOF. 
AS ONE COURT SAID, 'THE COURT WOULD BE ENGAGED IN LENGTHY HEARINGS IN
EVERY CASE TO DETERMINE WHETHER OR NOT THE PROSECUTING AUTHORITIES HAD
PROCEEDED DILIGENTLY OR OTHERWISE.'  (UNITED STATES V. PORT, CRIM. NO.
33162, (ND CAL., JUNE 2, 1952).  QUOTED IN NOTE, JUSTICE OVERDUE--
SPEEDY TRIAL FOR THE POTENTIAL DEFENDANT, 5 STAN.L.REV.  95, 101-102,
N. 34.)"  COMMENTARY TO RULE 2.2(A), SPEEDY TRIAL, N. 10, SUPRA, AT
23. 

/14/  THE COURT HAS INDICATED THAT CRIMINAL STATUTES OF LIMITATION
ARE TO BE LIBERALLY INTERPRETED IN FAVOR OF REPOSE.  UNITED STATES V.
HABIG, 390 U.S. 222, 227 (1968).  THE POLICIES BEHIND CIVIL STATUTES OF
LIMITATION ARE IN MANY WAYS SIMILAR.  THEY "REPRESENT A PUBLIC POLICY
ABOUT THE PRIVILEGE TO LITIGATE," CHASE SECURITIES CORP.V. DONALDSON,
325 U.S. 304, 314 (1945), AND THEIR UNDERLYING RATIONALE IS "TO
ENCOURAGE PROMPTNESS IN THE BRINGING OF ACTIONS, THAT THE PARTIES SHALL
NOT SUFFER BY LOSS OF EVIDENCE FROM DEATH OR DISAPPEARANCE OF
WITNESSES, DESTRUCTION OF DOCUMENTS OR FAILURE OF MEMORY."  MISSOURI,
KANSAS & TEXAS R. CO. V. HARRIMAN, 227 U.S. 657, 672 (1913).  SUCH
STATUTES "ARE FOUNDED UPON THE GENERAL EXPERIENCE OF MANKIND THAT
CLAIMS, WHICH ARE VALID, ARE NOT USUALLY ALLOWED TO REMAIN NEGLECTED,"
RIDDLESBARGER V. HARTFORD INSURANCE CO., 7 WALL.  386, 390 (1869), THE
"PROMOTE JUSTICE BY PREVENTING SURPRISES THROUGH THE REVIVAL OF CLAIMS
THAT HAVE BEEN ALLOWED TO SLUMBER UNTIL EVIDENCE HAS BEEN LOST,
MEMORIES HAVE FADED, AND WITNESSES HAVE DISAPPEARED," ORDER OF RAILROAD
TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, 321 U.S. 342, 348-349 (1944),
AND THEY "ARE PRIMARILY DESIGNED TO ASSURE FAIRNESS TO DEFENDANTS . . .
. (COURTS OUGHT TO BE RELIEVED OF THE BURDEN OF TRYING STALE CLAIMS
WHEN A PLAINTIFF HAS SLEPT ON HIS RIGHTS."  BURNETT V. NEW YORK CENTRAL
R. CO., 380 U.S. 424, 428 (1965).  AS IN THE CRIMINAL LAW AREA, SUCH
STATUTES REPRESENT A LEGISLATIVE JUDGMENT ABOUT THE BALANCE OF EQUITIES
IN A SITUATION INVOLVING THE TARDY ASSERTION OF OTHERWISE VALID RIGHTS:
"THE THEORY IS THAT EVEN IF ONE HAS A JUST CLAIM IT IS UNJUST NOT TO
PUT THE ADVERSARY ON NOTICE TO DEFEND WITHIN THE PERIOD OF LIMITATION
AND THAT THE RIGHT TO BE FREE OF STALE CLAIMS IN TIME COMES TO PREVAIL
OVER THE RIGHT TO PROSECUTE THEM."  ORDER OF RAILROAD TELEGRAPHERS V.
RAILWAY EXPRESS AGENCY, SUPRA, AT 349. 

/15/  "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
FIVE YEARS NEXT AFTER SUCH OFFENSE SHALL HAVE BEEN COMMITTED."  18
U.S.C. 3282. 

/16/  BRIEF FOR THE UNITED STATES 26-27. 

/17/  A NUMBER OF COURTS OF APPEALS HAVE CONSIDERED THE QUESTION. 
SEE, E.G., BENSON V. UNITED STATES, 402 F.2D,AT 580; SCHLINSKY V.
UNITED STATES, SUPRA; UNITED STATES V. CAPALDO, SUPRA; UNITED STATES V.
LEE, 413 F.2D,AT 913; UNITED STATES V. WILSON, SUPRA; UNITED STATES V.
HARBIN, 377 F2D,AT 80; ACREE V. UNITED STATES, SUPRA; NICKENS V. UNITED
STATES, SUPRA, AT 340 N. 2, 323 F.2D, AT 810 N. 2. 

/18/  CF. HOFFA V. UNITED STATES, 385 U.S. 293, 310 (1966): 

"THERE IS NO CONSTITUTIONAL RIGHT TO BE ARRESTED.  THE POLICE ARE
NOT REQUIRED TO GUESS AT THEIR PERIL THE PRECISE MOMENT AT WHICH THEY
HAVE PROBABLE CAUSE TO ARREST A SUSPECT, RISKING A VIOLATION OF THE
FOURTH AMENDMENT IF THEY ACT TOO SOON, AND A VIOLATION OF THE SIXTH
AMENDMENT IF THEY WAIT TOO LONG.  LAW ENFORCEMENT OFFICERS ARE UNDER NO
CONSTITUTIONAL DUTY TO CALL A HALT TO A CRIMINAL INVESTIGATION THE
MOMENT THEY HAVE THE MINIMUM EVIDENCE TO ESTABLISH PROBABLE CAUSE, A
QUANTUM OF EVIDENCE WHICH MAY FALL FAR SHORT OF THE AMOUNT NECESSARY TO
SUPPORT A CRIMINAL CONVICTION." 

MR.JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN THE RESULT. 

I ASSUME THAT IF THE THREE-YEAR DELAY IN THIS CASE HAD OCCURRED
AFTER THE INDICTMENT HAD BEEN RETURNED, THE RIGHT TO A SPEEDY TRIAL
WOULD HAVE BEEN IMPAIRED AND THE INDICTMENT WOULD HAVE TO BE
DISMISSED.  I DISAGREE WITH THE COURT THAT THE GUARANTEE DOES NOT APPLY
IF THE DELAY WAS AT THE PRE-INDICTMENT STAGE OF A CASE. 

FROM MARCH 15, 1965, TO FEBRUARY 6, 1967, APPELLEES ACTING THROUGH
ALLIED ENTERPRISES, INC., SOLD AND INSTALLED HOME INTERCOM, FIRE
CONTROL, AND BURGLAR DETECTION DEVICES IN THE DISTRICT OF COLUMBIA
METROPOLITAN AREA.  THEIR BUSINESS ENDEAVORS WERE SOON MET WITH A SPATE
OF LAWSUITS SEEKING RECOVERY FOR CONSUMER FRAUD AND, ON FEBRUARY 6,
1967, THEIR BRIEF CAREER WAS ENDED BY A CEASE-AND-DESIST ORDER ENTERED
BY THE FEDERAL TRADE COMMISSION.  PUBLIC NOTORIETY CONTINUED TO
SURROUND APPELLEES' ACTIVITIES AND, IN A SERIES OF ARTICLES APPEARING
IN THE WASHINGTON POST IN SEPTEMBER AND OCTOBER OF 1967, THEIR BUSINESS
WAS MENTIONED AS BEING UNDER INVESTIGATION BY THE UNITED STATES
ATTORNEY.  THE SPECIAL GRAND JURY THAT WAS IMPANELED ON OCTOBER 9,
1967, TO INVESTIGATE CONSUMER FRAUD DID NOT, HOWEVER, RETURN AN
INDICTMENT AGAINST APPELLEES.  SOMETIME BETWEEN THE SUMMER OF 1968 AND
JANUARY 1969, APPELLEES DELIVERED THEIR BUSINESS RECORDS TO THE UNITED
STATES ATTORNEY, BUT AN INDICTMENT WAS NOT RETURNED AGAINST THEM UNTIL
APRIL 21, 1970.  THE INDICTMENT CHARGED SOME 19 COUNTS OF MAIL FRAUD,
WIRE FRAUD, AND TRANSPORTATION OF FALSELY MADE SECURITIES IN INTERSTATE
COMMERCE ALL BETWEEN SEPTEMBER 3, 1965, AND JANUARY 19, 1966. 

APPELLEES MOVED "TO DISMISS THE INDICTMENT FOR FAILURE TO COMMENCE
PROSECUTION . . . WITHIN SUCH TIME AS TO (SATISFY THE) . . . RIGHTS TO
DUE PROCESS OF LAW AND TO A SPEEDY TRIAL . . . ."  THE UNITED STATES
ATTORNEY SOUGHT TO EXCUSE THE DELAY, ALLEGING THAT HIS OFFICE HAD BEEN
UNDERSTAFFED AT THE TIME AND THAT IT HAD GIVEN PRIORITY TO OTHER TYPES
OF CRIMES.  THE DISTRICT COURT GRANTED APPELLEES' MOTION /1/  AND THE
UNITED STATES APPEALED.  18 U.S.C. 3731 (1964 ED., SUPP. F). 

THE MAJORITY SAYS "THAT IT IS EITHER A FORMAL INDICTMENT OR
INFORMATION OR ELSE THE ACTUAL RESTRAINTS IMPOSED BY ARREST AND HOLDING
TO ANSWER A CRIMINAL CHARGE THAT ENGAGE THE PARTICULAR PROTECTIONS OF
THE SPEEDY TRIAL PROVISION . . . ."  ANTE, AT 320. 

THE SIXTH AMENDMENT, TO BE SURE, STATES THAT "THE ACCUSED SHALL
ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL."  BUT THE WORDS "THE
ACCUSED," AS I UNDERSTAND THEM IN THEIR SIXTH AMENDMENT SETTING, MEAN
ONLY THE PERSON WHO HAS STANDING TO COMPLAIN OF PROSECUTORIAL DELAY IN
SEEKING AN INDICTMENT OR FILING AN INFORMATION.  THE RIGHT TO A SPEEDY
TRIAL IS THE RIGHT TO BE BROUGHT TO TRIAL SPEEDILY WHICH WOULD SEEM TO
BE AS RELEVANT TO PRE-INDICTMENT DELAYS AS IT IS TO POST-INDICTMENT
DELAYS.  MUCH IS MADE OF THE HISTORY OF THE SIXTH AMENDMENT AS
INDICATING THAT THE SPEEDY TRIAL GUARANTEE HAD NO APPLICATION TO PRE
PROSECUTION DELAYS.     THERE ARE TWO ANSWERS TO THAT PROPOSITION. 
FIRST, BRITISH COURTS HISTORICALLY DID CONSIDER DELAY AS A CONDITION TO
ISSUANCE OF AN INFORMATION. 

LORD MANSFIELD HELD IN REX V. ROBINSON, 1 BLACK.W. 541, 542, 96
ENG.REP.  313 (K.B. 1765), THAT THE ISSUANCE OF AN INFORMATION WAS
SUBJECT TO TIME LIMITATIONS:  "IF DELAYED, THE DELAY MUST BE REASONABLY
ACCOUNTED FOR."  IN REGINA V. HEXT, 4 JURIST 339 (W.B. 1840), AN
INFORMATION WAS REFUSED WHERE A WHOLE TERM OF COURT HAS PASSED SINCE
THE ALLEGED ASSAULT TOOK PLACE.  ACCORD:  REX V. MARSHALL, 13 EAST 322,
104 ENG.REP.  394 (K.B. 1811). 

BARON ALDERSON SAID IN REGINA V. ROBINS, 1 COX'S C.C.114 (SOMERSET
WINTER ASSIZES 1844), WHERE THERE WAS A TWO-YEAR DELAY IN MAKING A
CHARGE OF BESTIALITY: 

"IT IS MONSTROUS TO PUT A MAN ON HIS TRIAL AFTER SUCH A LAPSE OF
TIME.  HOW CAN HE ACCOUNT FOR HIS CONDUCT SO FAR BACK?  IF YOU ACCUSE A
MAN OF A CRIME THE NEXT DAY, HE MAY BE ENABLED TO BRING FORWARD HIS
SERVANTS AND FAMILY TO SAY WHERE HE WAS AND WHAT HE WAS ABOUT AT THE
TIME; BUT IF THE CHARGE BE NOT PREFERRED FOR A YEAR OR MORE, HOW CAN HE
CLEAR HIMSELF?  NO MAN'S LIFE WOULD BE SAFE IF SUCH A PROSECUTION WERE
PERMITTED.  IT WOULD BE VERY UNJUST TO PUT HIM ON HIS TRIAL." 

SECOND, AND MORE BASICALLY, THE 18TH CENTURY CRIMINAL PROSECUTION AT
THE COMMON LAW WAS IN GENERAL COMMENCED IN A COMPLETELY DIFFERENT WAY
FROM THAT WITH WHICH WE ARE FAMILIAR TODAY.  BY THE COMMON LAW OF
ENGLAND WHICH WAS BROUGHT TO THE AMERICAN COLONIES, THE ORDINARY
CRIMINAL PROSECUTION WAS CONDUCTED BY A PRIVATE PROSECUTOR, IN THE NAME
OF THE KING.  IN CASE THE VICTIM OF THE CRIME OR SOMEONE INTERESTED
CAME FORWARD TO PROSECUTE, HE RETAINED HIS OWN COUNSEL AND HAD CHARGE
OF THE CASE AS IN THE USUAL CIVIL PROCEEDING.  SEE G. DESSION, CRIMINAL
LAW, ADMINISTRATION AND PUBLIC ORDER 356 (1948).  PROCEDURALLY, THE
CRIMINAL PROSECUTION WAS COMMENCED BY THE FILING OF A LAWSUIT, AND
THEREAFTER THE FILING OF AN APPLICATION FOR CRIMINAL PROSECUTION OR
RULE NISI OR SIMILAR PROCEDURE CALLING FOR THE DEFENDANT TO SHOW CAUSE
WHY HE SHOULD NOT BE IMPRISONED.  THE ENGLISH COMMON LAW, WITH WHICH
THE FRAMERS WERE FAMILIAR, CONCEIVED OF A CRIMINAL PROSECUTION AS BEING
COMMENCED PRIOR TO INDICTMENT.  THUS IN THAT SETTING THE INDIVIDUAL
CHARGED AS THE DEFENDANT IN A CRIMINAL PROCEEDING COULD AND WOULD BE AN
"ACCUSED" PRIOR TO FORMAL INDICTMENT.  /2/ 

THE RIGHT TO A SPEEDY TRIAL, WHICH WE HAVE CHARACTERIZED "AS
FUNDAMENTAL AS ANY OF THE RIGHTS SECURED BY THE SIXTH AMENDMENT,"
KLOPFER V. NORTH CAROLINA, 386 U.S. 213, 223, PROTECTS SEVERAL DEMANDS
OF CRIMINAL JUSTICE:  THE PREVENTION OF UNDUE DELAY AND OPPRESSIVE
INCARCERATION PRIOR TO TRIAL; THE REDUCTION OF ANXIETY AND CONCERN
ACCOMPANYING PUBLIC ACCUSATION; AND LIMITING THE POSSIBILITIES THAT
LONG DELAY WILL IMPAIR THE ABILITY OF AN ACCUSED TO DEFEND HIMSELF. 
SMITH V. HOOEY, 393 U.S. 374, 377-378 (1969).  SEE ALSO PEOPLE V.
PROSSER, 309 N.Y. 353, 356, 130 N.E.2D 891, 894 (1955).  THE RIGHT ALSO
SERVES BROADER INTERESTS: 

     "THE SPEEDY TRIAL CLAUSE PROTECTS SOCIETAL INTERESTS, AS WELL

  AS THOSE OF THE ACCUSED.  THE PUBLIC IS CONCERNED WITH THE

  EFFECTIVE PROSECUTION OF CRIMINAL CASES, BOTH TO RESTRAIN THOSE

  GUILTY OF CRIME AND TO DETER THOSE CONTEMPLATING IT.  JUST AS

  DELAY MAY IMPAIR THE ABILITY OF THE ACCUSED TO DEFEND HIMSELF, SO

  IT MAY REDUCE THE CAPACITY OF THE GOVERNMENT TO PROVE ITS CASE. 

  SEE PONZI V. FESSENDEN, 258 U.S. 254, 264 (1922).  MOREOVER,

WHILE AWAITING TRIAL, AN ACCUSED WHO IS AT LARGE MAY BECOME A

  FUGITIVE FROM JUSTICE OR COMMIT OTHER CRIMINAL ACTS.  AND THE

  GREATER THE LAPSE OF TIME BETWEEN COMMISSION OF AN OFFENSE AND

  THE CONVICTION OF THE OFFENDER, THE LESS THE DETERRENT VALUE OF

  HIS CONVICTION."  DICKEY V. FLORIDA, 398 U.S. 30, 42 (1970)

  (BRENNAN, J., CONCURRING). 

AT LEAST SOME OF THESE VALUES SERVED BY THE RIGHT TO A SPEEDY TRIAL
ARE NOT UNIQUE TO ANY PARTICULAR STAGE OF THE CRIMINAL PROCEEDING.  SEE
NOTE, 43 N.Y.U.L.REV.  722, 725-726 (1968); NOTE, 77 YALE L.J. 767, 780
783 (1968); COMMENT, 11 ARIZ.L.REV.  770, 774-776 (1969).  UNDUE DELAY
MAY BE AS OFFENSIVE TO THE RIGHT TO A SPEEDY TRIAL BEFORE AS AFTER AN
INDICTMENT OF INFORMATION.  THE ANXIETY AND CONCERN ATTENDANT ON PUBLIC
ACCUSATION MAY WEIGH MORE HEAVILY UPON AN INDIVIDUAL WHO HAS NOT YET
BEEN FORMALLY INDICTED OR ARRESTED FOR, TO HIM, EXONERATION BY A JURY
OF HIS PEERS MAY BE ONLY A VAGUE POSSIBILITY LURKING IN THE DISTANT
FUTURE.  INDEED, THE PROTECTION UNDERLYING THE RIGHT TO A SPEEDY TRIAL
MAY BE DENIED WHEN A CITIZEN IS DAMNED BY CLANDESTINE INNUENDO AND
NEVER GIVEN THE CHANCE PROMPTLY TO DEFEND HIMSELF IN A COURT OF LAW. 
THOSE WHO ARE ACCUSED OF CRIME BUT NEVER TRIED MAY LOSE THEIR JOBS OR
THEIR POSITIONS OF RESPONSIBILITY, OR BECOME OUTCASTS IN THEIR
COMMUNITIES. 

THE IMPAIRMENT OF THE ABILITY TO DEFEND ONESELF MAY BECOME ACUTE
BECAUSE OF DELAYS IN THE PRE-INDICTMENT STAGE.  THOSE DELAYS MAY RESULT
IN THE LOSS OF ALIBI WITNESSES, THE DESTRUCTION OF MATERIAL EVIDENCE,
AND THE BLURRING OF MEMORIES.  AT LEAST WHEN A PERSON HAS BEEN ACCUSED
OF A SPECIFIC CRIME, HE CAN DEVOTE HIS POWERS OF RECALL TO THE EVENTS
SURROUNDING THE ALLEGED OCCURRENCES.  WHEN THERE IS NO FORMAL
ACCUSATION, HOWEVER, THE STATE MAY PROCEED METHODICALLY TO BUILD ITS
CASE WHILE THE PROSPECTIVE DEFENDANT PROCEEDS TO LOSE HIS.  /3/ 

THE DUTY WHICH THE SIXTH AMENDMENT PLACES ON GOVERNMENT OFFICIALS TO
PROCEED EXPEDITIOUSLY WITH CRIMINAL PROSECUTIONS WOULD HAVE LITTLE
MEANING IF THOSE OFFICIALS COULD DETERMINE WHEN THAT DUTY WAS TO
COMMENCE.  TO BE SURE, "(THE RIGHT OF A SPEEDY TRIAL IS NECESSARILY
RELATIVE.  IT IS CONSISTENT WITH DELAYS AND DEPENDS UPON
CIRCUMSTANCES."  BEAVERS V. HAUBERT, 198 U.S. 77, 87 (1905).  BUT IT IS
PRECISELY BECAUSE THIS RIGHT IS RELATIVE THAT WE SHOULD DRAW THE LINE
SO AS NOT TO CONDONE ILLEGITIMATE DELAYS WHETHER AT THE PRE- OR THE
POST-INDICTMENT STAGE.  /4/ 

OUR DECISIONS DO NOT SUPPORT THE LIMITATIONS OF THE RIGHT TO A
SPEEDY TRIAL ADOPTED IN THE MAJORITY'S CONCLUSION THAT "THE (SIXTH)
AMENDMENT (DOES NOT EXTEND) TO THE PERIOD PRIOR TO ARREST."  ANTE, AT
321.  IN MIRANDA V. ARIZONA, 384 U.S. 436, 444 (1966), WE HELD THAT IT
WAS NECESSARY FOR THE POLICE TO ADVISE OF THE RIGHT TO COUNSEL IN THE
PRE-INDICTMENT SITUATION WHERE "A PERSON HAS BEEN TAKEN INTO CUSTODY OR
OTHERWISE DEPRIVED OF HIS FREEDOM OF ACTION IN ANY SIGNIFICANT WAY." 
THAT CASE, LIKE THE PRESENT ONE, DEALT WITH ONE OF THE RIGHTS
ENUMERATED IN THE SIXTH AMENDMENT TO WHICH AN "ACCUSED" WAS ENTITLED. 
WE WERE NOT THEN CONCERNED WITH WHETHER AN "ARREST" OR AN "INDICTMENT"
WAS NECESSARY FOR A PERSON TO BE AN "ACCUSED" AND THUS ENTITLED TO
SIXTH AMENDMENT PROTECTIONS.  WE LOOKED INSTEAD TO THE NATURE OF THE
EVENT AND ITS EFFECT ON THE RIGHTS INVOLVED.  WE APPLIED THE MIRANDA
RULE EVEN THOUGH THERE WAS NO "ARREST," BUT ONLY AN EXAMINATION OF THE
SUSPECT WHILE HE WAS IN I BED AT HIS BOARDING HOUSE, THE PRESENCE OF
THE OFFICERS MAKING HIM "IN CUSTODY."  OROZCO V. TEXAS, 394 U.S. 324,
327.  WE SHOULD FOLLOW THE SAME APPROACH HERE AND HOLD THAT THE RIGHT
TO A SPEEDY TRIAL IS DENIED IF THERE WERE YEARS OF UNEXPLAINED AND
INEXCUSABLE PRE-INDICTMENT DELAY. 

DICKEY V. FLORIDA, SUPRA, SIMILARLY DEMONSTRATES THE WISDOM OF
AVOIDING TODAY'S MECHANICAL APPROACH TO THE APPLICATION OF BASIC
CONSTITUTIONAL GUAR GUARANTEES.  WHILE HE WAS IN CUSTODY ON AN
UNRELATED FEDERAL CHARGE, THE PETITIONER WAS IDENTIFIED BY A WITNESS TO
THE ROBBERY.  PETITIONER REMAINED IN FEDERAL CUSTODY, BUT THE STATE DID
NOT SEEK TO PROSECUTE HIM UNTIL SEPTEMBER 1, 1967, WHEN HE MOVED TO
DISMISS THE DETAINER WARRANT WHICH HAD BEEN LODGED AGAINST HIM.  AN
INFORMATION WAS THEN FILED ON DECEMBER 15, 1967, AND PETITIONER WAS
TRIED ON FEBRUARY 13, 1968.  ALTHOUGH THE TRIAL TOOK PLACE LESS THAN
TWO MONTHS AFTER THE FILING OF THE INFORMATION, WE HELD THAT THERE HAD
BEEN A DENIAL OF THE RIGHT TO A SPEEDY TRIAL BECAUSE OF THE DELAY OF
MORE THAN SEVEN YEARS BETWEEN THE CRIME AND THE INFORMATION. 

IN A CONCURRING OPINION, MR. JUSTICE BRENNAN DISCUSSED THE BROADER
QUESTIONS RAISED BY THAT CASE:

     "WHEN IS GOVERNMENTAL DELAY REASONABLE?  CLEARLY, A DELIBERATE

  ATTEMPT BY THE GOVERNMENT TO USE DELAY TO HARM THE ACCUSED, OR

  GOVERNMENTAL DELAY THAT IS PURPOSEFUL OR OPPRESSIVE,' IS

  UNJUSTIFIABLE . . . . THE SAME MAY BE TRUE OF ANY GOVERNMENTAL

  DELAY THAT IS UNNECESSARY, WHETHER INTENTIONAL OR NEGLIGENT IN

  ORIGIN.  A NEGLIGENT FAILURE BY THE GOVERNMENT TO ENSURE SPEEDY

TRIAL IS VIRTUALLY AS DAMAGING TO THE INTERESTS PROTECTED BY THE

  RIGHT AS AN INTENTIONAL FAILURE; WHEN NEGLIGENCE IS THE CAUSE,

  THE ONLY INTEREST NECESSARILY UNAFFECTED IS OUR COMMON CONCERN TO

  PREVENT DELIBERATE MISUSE OF THE CRIMINAL PROCESS BY PUBLIC

  OFFICIALS.  THUS THE CRUCIAL QUESTION IN DETERMINING THE

  LEGITIMACY OF GOVERNMENTAL DELAY MAY BE WHETHER IT MIGHT

  REASONABLY HAVE BEEN AVOIDED-- WHETHER IT WAS UNNECESSARY.  TO

  DETERMINE THE NECESSITY FOR GOVERNMENTAL DELAY, IT WOULD SEEM

  IMPORTANT TO CONSIDER, ON THE ONE HAND, THE INTRINSIC IMPORTANCE

  OF THE REASON FOR THE DELAY, AND, ON THE OTHER, THE LENGTH OF THE

DELAY AND ITS POTENTIAL FOR PREJUDICE TO INTERESTS PROTECTED BY

  THE SPEEDY-TRIAL SAFEGUARD.  FOR A TRIVIAL OBJECTIVE, ALMOST ANY

  DELAY COULD BE REASONABLY AVOIDED.  SIMILARLY, LENGTHY DELAY,

  EVEN IN THE INTEREST OF REALIZING AN IMPORTANT OBJECTIVE, WOULD

  BE SUSPECT."  398 U.S.,AT 51-52. 

IN THE PRESENT CASE, TWO TO THREE YEARS ELAPSED BETWEEN THE TIME THE
DISTRICT COURT FOUND THAT THE CHARGES COULD AND SHOULD HAVE BEEN
BROUGHT AND THE ACTUAL RETURN OF THE INDICTMENT.  THE JUSTIFICATIONS
OFFERED WERE THAT THE UNITED STATES ATTORNEY'S OFFICE WAS "NOT
SUFFICIENTLY STAFFED TO PROCEED AS EXPEDITIOUSLY" AS DESIRABLE /5/  AND
THAT PRIORITY HAD BEEN GIVEN TO OTHER CASES.  APPELLEES SAY THAT THE
PRESENT INDICTMENT EMBRACES COUNTS SUCH AS AN ALLEGEDLY FRAUDULENT
TELEPHONE CONVERSATION MADE ON DECEMBER 16, 1965.  THEY ARGUE THAT
THERE IS A GREAT LIKELIHOOD THAT THE RECOLLECTION OF SUCH EVENTS WILL
BE BLURRED OR ERASED BY THE FRAILTIES OF THE HUMAN MEMORY.  IF THIS
WERE A SIMPLER CRIME, I THINK THE BRITISH PRECEDENT WHICH I HAVE CITED
WOULD WARRANT DISMISSAL OF THE INDICTMENT BECAUSE OF THE SPEEDY TRIAL
GUARANTEE OF THE SIXTH AMENDMENT.  BUT WE KNOW FROM EXPERIENCE THAT THE
NATURE OF THE CRIME CHARGED HERE OFTEN HAS VAST INTERSTATE ASPECTS, THE
VICTIMS ARE OFTEN WIDELY SCATTERED AND HARD TO LOCATE, AND THE
RECONSTRUCTION OF THE TOTAL SCHEME OF THE FRAUDULENT PLAN TAKES TIME. 
IF WE APPLIED THE SIMPLER RULE THAT WAS APPLIED IN SIMPLER DAYS, WE
WOULD BE GIVING EXTRAORDINARY ADVANTAGES TO ORGANIZED CRIME AS WELL AS
OTHERS WHO USE A FAR FLUNG COMPLICATED NETWORK TO PERFORM THEIR ILLEGAL
ACTIVITIES.  I THINK A THREE-YEAR DELAY EVEN IN THAT KIND OF CASE GOES
TO THE EDGE OF A PERMISSIBLE DELAY.  BUT ON THE BARE BONES OF THIS
RECORD I HESITATE TO SAY THAT THE GUARANTEE OF A SPEEDY TRIAL HAS BEEN
VIOLATED.  UNLESS APPELLEES ON REMAND DEMONSTRATE ACTUAL PREJUDICE, I
WOULD AGREE THAT THE PROSECUTION MIGHT GO FORWARD.  HENCE I CONCUR IN
THE RESULT. 

/1/  IN DISMISSING THE INDICTMENT, THE DISTRICT COURT SAID: 

"IT APPEARS TO THE COURT THAT THE MATTERS COMPLAINED OF OCCURRED
BETWEEN MARCH 1965 AND JANUARY 1966.  IT FURTHER APPEARS THAT THESE
MATTERS WERE KNOWN FROM EARLY 1967 OR A MATTER OF COMMON KNOWLEDGE IN
LATE 1967.  THERE APPEARS NO REASON WHY A THREE-YEAR DELAY FROM 1967
WAS JUSTIFIED BY THE NECESSITY OF RESEARCH AND EXAMINATION DELVING INTO
THE VARIOUS TRANSACTIONS, THEY COULD HAVE BEEN DISCOVERED AND HANDLED
MUCH, MUCH SOONER, CERTAINLY PROBABLY DURING THE YEAR 1967 OR AT THE
LATEST EARLY 1968. 

"THE DEFENDANTS HAVE BEEN INDICTED ON 19 COUNTS, EACH OF WHICH I
BELIEVE CARRIES A TEN-YEAR SENTENCE, EACH OF WHICH IS A SEPARATE,
DISTINCT TRANSACTION WHICH WOULD JUSTIFY CONSECUTIVE SENTENCES, AND BY
THE VERY NATURE OF THIS OUTRAGEOUS SCHEME IF THE ALLEGATIONS COULD BE
BELIEVED, THE ABILITY TO REMEMBER, TO BUILD UP IN ONE'S RECOLLECTION,
TO PRODUCE THE NECESSARY DEFENSE, IS BOUND TO HAVE BEEN SERIOUSLY
PREJUDICED BY THE DELAY OF AT LEAST SOME THREE YEARS IN BRINGING THE
PROSECUTION THAT SHOULD HAVE BEEN BROUGHT IN 1967, OR AT THE VERY
LATEST EARLY 1968. 

"THE COURT, THEREFORE, VIEWS THAT THERE HAS BEEN A LACK OF SPEEDY
PROSECUTION IN THIS CASE, AND WILL GRANT THE MOTION TO DISMISS." 

/2/  SEE 1 J.STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 493-496
(1883): 

"IN ENGLAND, AND, SO FAR AS I KNOW, IN ENGLAND AND SOME ENGLISH
COLONIES ALONE, THE PROSECUTION OF OFFENCES IS LEFT ENTIRELY TO PRIVATE
PERSONS, OR TO PUBLIC OFFICERS WHO ACT IN THEIR CAPACITY OF PRIVATE
PERSONS AND WHO HAVE HARDLY ANY LEGAL POWERS BEYOND THOSE WHICH BELONG
TO PRIVATE PERSONS."  ID., AT 493. 

FOR AN ANNOTATED VERSION OF THE INCEPTION AND EVOLUTION OF THE
BRITISH SYSTEM, SEE M. SCHWARTZ, CASES AND MATERIALS ON PROFESSIONAL
RESPONSIBILITY AND THE ADMINISTRATION OF CRIMINAL JUSTICE 2-3 (NAT.
COUNCIL ON LEGAL CLINICS 1961). 

/3/  JUDGE WRIGHT RECOGNIZED THIS IN HIS CONCURRING OPINION IN
NICKENS V. UNITED STATES, 116 U.S.APP.D.C. 338, 343, 323 F.2D 808, 813
(1963): 

"INDEED, A SUSPECT MAY BE AT A SPECIAL DISADVANTAGE WHEN COMPLAINT
OR INDICTMENT, OR ARREST, IS PURPOSEFULLY DELAYED.  WITH NO KNOWLEDGE
THAT CRIMINAL CHARGES ARE TO BE BROUGHT AGAINST HIM, AN INNOCENT MAN
HAS NO REASON TO FIX IN HIS MEMORY THE HAPPENINGS ON THE DAY OF THE
ALLEGED CRIME.  MEMORY GROWS DIM WITH THE PASSAGE OF TIME.  WITNESSES
DISAPPEAR.  WITH EACH DAY, THE ACCUSED BECOMES LESS ABLE TO MAKE OUT
HIS DEFENSE.  IF, DURING THE DELAY, THE GOVERNMENT'S CASE IS ALREADY IN
ITS HANDS, THE BALANCE OF ADVANTAGE SHIFTS MORE IN FAVOR OF THE
GOVERNMENT THE MORE THE GOVERNMENT LAGS.  UNDER OUR CONSTITUTIONAL
SYSTEM SUCH A TACTIC IS NOT AVAILABLE TO POLICE AND PROSECUTORS." 
/4/  "(A) PREPROSECUTION DELAY CAN RESULT IN THE LOSS OF PHYSICAL
EVIDENCE, THE UNAVAILABILITY OF POTENTIAL WITNESSES, AND THE IMPAIRMENT
OF THE ABILITY OF THE PROSPECTIVE DEFENDANT AND HIS WITNESSES TO
REMEMBER THE EVENTS IN QUESTION.  INDEED, THE POSSIBILITY OF SUCH
PREJUDICE MAY BE GREATER IN PREPROSECUTION-DELAY CASES THAN IN POST
INDICTMENT-DELAY CASES.  THE TYPICAL PROSPECTIVE DEFENDANT IS PROBABLY
UNAWARE OF THE FACT THAT CRIMINAL CHARGES WILL EVENTUALLY BE BROUGHT
AGAINST HIM.  THUS, HE WILL HAVE NO REASON TO TAKE MEASURES TO PRESERVE
HIS MEMORY OR THE MEMORIES OF HIS WITNESSES.  'THE IMPORTANCE OF THESE
CONSIDERATIONS BECOMES CLEAR WHEN MEASURED AGAINST THE STATE'S ABILITY
TO COLLECT AND DOCUMENT EVIDENCE AS IT CARRIES OUT ITS CRIMINAL
INVESTIGATION, THEREBY PRESERVING ITS PROBATIVE FIREPOWER UNTIL THE
TIME OF EVENTUAL ARREST.' 

"THE CAUSAL FACTOR ALSO CAN BE PRESENT IN A PREPROSECUTION DELAY. 
MANY PREPROSECUTION DELAYS ARE CAUSED BY THE RELUCTANCE OF THE
GOVERNMENT TO TERMINATE AN UNDERCOVER INVESTIGATION.  IF THE KNOWLEDGE
OBTAINED BY AN UNDERCOVER AGENT IS USED AS THE BASIS FOR AN ARREST OR
FOR THE ISSUANCE OF A COMPLAINT, THE IDENTITY OF THE AGENT MAY BE
EXPOSED AND HIS EFFECTIVENESS DESTROYED.  CONSEQUENTLY, THE GOVERNMENT
WILL OFTEN DELAY ARRESTING AN INDIVIDUAL AGAINST WHOM ITS CASE IS
COMPLETE IF THE AGENT IS STILL OBTAINING EVIDENCE AGAINST OTHER
INDIVIDUALS.  IN SUCH A SITUATION, THE GOVERNMENT HAS MADE A DELIBERATE
CHOICE FOR A SUPPOSED ADVANTAGE.  WHILE THIS ADVANTAGE IS ARGUABLY NOT
SOUGHT VIS-A-VIS THE DEFENDANT ASSERTING THE SPEEDY-TRIAL CLAIM, THE
FACT REMAINS THAT THE ADVANTAGE ARISES OUT OF A DELIBERATE AND
AVOIDABLE CHOICE ON THE PART OF LAW-ENFORCEMENT AUTHORITIES."  NOTE, 20
STAN.L.REV.  476, 489. 

/5/  THE DISTRICT JUDGE OINTED OUT THAT THE THEN ASSISTANT ATTORNEY
GENERAL HAD INDICATED "THAT HE DIDN'T NEED ANY MORE HELP" AND THAT THE
UNITED STATES ATTORNEY RETREATED FROM THIS FACTUAL ASSERTION. 

DEPUTY SOLICITOR GENERAL GREENAWALT ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL WILSON, ACTING ASSISTANT ATTORNEY GENERAL
PETERSEN, BEATRICE ROSENBERG, AND MERVYN HAMBURG. 

THOMAS PENFIELD JACKSON ARGUED THE CAUSE FOR APPELLEES AND FILED A
BRIEF FOR APPELLEE MARION.  BENJAMIN WRIGHT COTTON FILED A BRIEF FOR
APPELLEE CRATCH. 

ALAN Y. COLE AND ISAAC N. GRONER FILED A BRIEF FOR THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :
























UNITED STATES V. BASS, 404 U.S. 336 


       UNITED STATES V. BASS

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 70-71.  ARGUED OCTOBER 18, 1971-- DECIDED DECEMBER 20,

           1971 


RESPONDENT WAS CONVICTED OF POSSESSION FIREARMS IN VIOLATION OF SEC.
1202(A)(1) OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT, WHICH
PROVIDES THAT A PERSON CONVICTED OF A FELONY "WHO RECEIVES, POSSESSES,
OR TRANSPORTS IN COMMERCE OR AFFECTING COMMERCE . . . ANY FIREARM . . .
" SHALL BE PUNISHED AS PRESCRIBED THEREIN.  THE INDICTMENT DID NOT
ALLEGE AND NO ATTEMPT WAS MADE TO SHOW THAT THE FIREARMS INVOLVED HAD
BEEN POSSESSED "IN COMMERCE OR AFFECTING COMMERCE," THE GOVERNMENT
CONTENDING THAT THE STATUTE DOES NOT REQUIRE PROOF OF A CONNECTION WITH
INTERSTATE COMMERCE IN INDIVIDUAL CASES INVOLVING POSSESSION OR
RECEIPT.  DOUBTING ITS CONSTITUTIONALITY IF THE STATUTE WERE THUS
CONSTRUED, THE COURT OF APPEALS REVERSED.  HELD:  IT IS NOT CLEAR FROM
THE LANGUAGE AND LEGISLATIVE HISTORY OF SEC. 1202(A)(1) WHETHER OR NOT
RECEIPT OR POSSESSION OF A FIREARM BY A CONVICTED FELON HAS TO BE SHOWN
IN AN INDIVIDUAL PROSECUTION TO HAVE BEEN CONNECTED WITH INTERSTATE
COMMERCE.  THE AMBIGUITY OF THIS PROVISION (WHICH IS NOT ONLY A
CRIMINAL STATUTE BUT ONE WHOSE BROAD CONSTRUCTION WOULD DEFINE AS A
FEDERAL OFFENSE CONDUCT READILY PROSCRIBED BY THE STATES), MUST
THEREFORE BE RESOLVED IN FAVOR OF THE NARROWER READING THAT A NEXUS
WITH INTERSTATE COMMERCE MUST BE SHOWN WITH RESPECT TO ALL THREE
OFFENSES EMBRACED BY THE PROVISION.  PP. 339-351. 

434 F.2D 1296, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN (EXCEPT FOR PART III), STEWART, AND WHITE, JJ., JOINED. 
BRENNAN, J., FILED A SEPARATE STATEMENT, POST, P. 351.  BLACKMUN, J.,
FILED A DISSENTING OPINION, IN WHICH BURGER, C.J., JOINED, POST, P.
351. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

RESPONDENT WAS CONVICTED IN THE SOUTHERN DISTRICT OF NEW YORK OF
POSSESSING FIREARMS IN VIOLATION OF TITLE VII OF THE OMNIBUS CRIME
CONTROL AND SAFE STREETS ACTS OF 1968, 18 U.S.C. APP. 1202(A).  IN
PERTINENT PART, THAT STATUTE READS: 

     "ANY PERSON WHO-- 

     "(1) HAS BEEN CONVICTED BY A COURT OF THE UNITED STATES OR OF
A

  STATE OR ANY POLITICAL SUBDIVISION THEREOF OF A FELONY . . . AND

  WHO RECEIVES, POSSESSES, OR TRANSPORTS IN COMMERCE OR AFFECTING

  COMMERCE . . . ANY FIREARM SHALL BE FINED NOT MORE THAN $10,000

  OR IMPRISONED FOR NOT MORE THAN TWO YEARS, OR BOTH."  /1/ 

THE EVIDENCE SHOWED THAT RESPONDENT, WHO HAD PREVIOUSLY BEEN
CONVICTED OF A FELONY IN NEW YORK STATE, POSSESSED ON SEPARATE
OCCASIONS A PISTOL AND THEN A SHOTGUN.  THERE WAS NO ALLEGATION IN THE
INDICTMENT AND NO ATTEMPT BY THE PROSECUTION TO SHOW THAT EITHER
FIREARM HAD BEEN POSSESSED "IN COMMERCE OR AFFECTING COMMERCE."  THE
GOVERNMENT PROCEEDED ON THE ASSUMPTION THAT SEC. 1202(A)(1) BANNED ALL
POSSESSIONS AND RECEIPTS OF FIREARMS BY CONVICTED FELONS, AND THAT NO
CONNECTION WITH INTERSTATE COMMERCE HAD TO BE DEMONSTRATED IN
INDIVIDUAL CASES. 

AFTER HIS CONVICTION, /2/  RESPONDENT UNSUCCESSFULLY MOVED FOR
ARREST OF JUDGMENT ON TWO PRIMARY GROUNDS:  THAT THE STATUTE DID NOT
REACH POSSESSION OF A FIREARM NOT SHOWN TO HAVE BEEN "IN COMMERCE OR
AFFECTING COMMERCE," AND THAT, IF IT DID, CONGRESS HAD OVERSTEPPED ITS
CONSTITUTIONAL POWERS UNDER THE COMMERCE CLAUSE.  308 F.SUPP.  1385. 
THE COURT OF APPEALS REVERSED THE CONVICTION, BEING OF THE VIEW THAT IF
THE GOVERNMENT'S CONSTRUCTION OF THE STATUTE WERE ACCEPTED, THERE WOULD
BE SUBSTANTIAL DOUBT ABOUT THE STATUTE'S CONSTITUTIONALITY.  434 F.2D
1296.  WE GRANTED CERTIORARI TO RESOLVE A CONFLICT AMONG LOWER COURTS
OVER THE PROPER REACH OF THE STATUTE.  /3/  WE AFFIRM THE JUDGMENT OF
THE COURT BELOW, BUT FOR SUBSTANTIALLY DIFFERENT REASONS.  /4/  WE
CONCLUDE THAT SEC. 1202 IS AMBIGUOUS IN THE CRITICAL RESPECT.  BECAUSE
ITS SANCTIONS ARE CRIMINAL AND BECAUSE, UNDER THE GOVERNMENT'S BROADER
READING, THE STATUTE WOULD MARK A MAJOR INROAD INTO A DOMAIN
TRADITIONALLY LEFT TO THE STATES, WE REFUSE TO ADOPT THE BROAD READING
IN THE ABSENCE OF A CLEARER DIRECTION FROM CONGRESS. 

        I 

NOT WISHING "TO GIVE POINT TO THE QUIP THAT ONLY WHEN LEGISLATIVE
HISTORY IS DOUBTFUL DO YOU GO TO THE STATUTE,"  /5/  WE BEGIN BY
LOOKING TO THE TEXT ITSELF.  THE CRITICAL TEXTUAL QUESTION IS WHETHER
THE STATUTORY PHRASE "IN COMMERCE OR AFFECTING COMMERCE" APPLIES TO
"POSSESSES" AND "RECEIVES" AS WELL AS TO "TRANSPORTS."  IF IT DOES,
THEN THE GOVERNMENT MUST PROVE AS AN ESSENTIAL ELEMENT OF THE OFFENSE
THAT A POSSESSION, RECEIPT, OR TRANSPORTATION WAS "IN COMMERCE OR
AFFECTING COMMERCE"-- A BURDEN NOT UNDERTAKEN IN THIS PROSECUTION FOR
POSSESSION. 

WHILE THE STATUTE DOES NOT READ WELL UNDER EITHER VIEW, "THE NATURAL
CONSTRUCTION OF THE LANGUAGE" SUGGESTS THAT ALL THREE ANTECEDENTS IN
THE LIST.  PORTO RICO RAILWAY, LIGHT & POWER CO. V. MOR, 253 U.S. 345,
348 (1920).  SINCE "IN COMMERCE OR AFFECTING COMMERCE" UNDENIABLY
APPLIES TO AT LEAST ONE ANTECEDENT, AND SINCE IT MAKES SENSE WITH ALL
THREE, THE MORE PLAUSIBLE CONSTRUCTION HERE IS THAT IT IN FACT APPLIES
TO ALL THREE.  BUT ALTHOUGH THIS IS A BEGINNING, THE ARGUMENT IS
CERTAINLY NEITHER OVERWHELMING NOR DECISIVE.  /6/ 

IN A MORE SIGNIFICANT RESPECT, HOWEVER, THE LANGUAGE OF THE STATUTE
DOES PROVIDE SUPPORT FOR RESPONDENT'S READING.  UNDENIABLY, THE PHRASE
"IN COMMERCE OR AFFECTING COMMERCE" IS PART OF THE "TRANSPORTS"
OFFENSE.  BUT IF THAT PHRASE APPLIES ONLY TO "TRANSPORTS," THE STATUTE
WOULD HAVE A CURIOUS REACH.  WHILE PERMITTING TRANSPORTATION OF A
FIREARM UNLESS IT IS TRANSPORTED "IN COMMERCE OR AFFECTING COMMERCE,"
THE STATUTE WOULD PROHIBIT ALL POSSESSIONS OF FIREARMS, AND BOTH
INTERSTATE AND INTRASTATE RECEIPTS.  SINCE VIRTUALLY ALL
TRANSPORTATIONS, WHETHER INTERSTATE OR INTRASTATE, INVOLVE AN
ACCOMPANYING POSSESSION OR RECEIPT, IT IS ODD INDEED TO ARGUE THAT ON
THE ONE HAND THE STATUTE REACHES ALL POSSESSIONS AND RECEIPTS, AND ON
THE OTHER HAND OUTLAWS ONLY INTERSTATE TRANSPORTATIONS.  EVEN ASSUMING
THAT A PERSON CAN "TRANSPORT" A FIREARM UNDER THE STATUTE WITHOUT
POSSESSING OR RECEIVING IT, THERE IS NO REASON CONSISTENT WITH ANY
DISCERNIBLE PURPOSE OF THE STATUTE TO APPLY AN INTERSTATE COMMERCE
REQUIREMENT TO THE "TRANSPORTS" OFFENSE ALONE.  /7/  IN SHORT, THE
GOVERNMENT HAS NO CONVINCING EXPLANATION FOR THE INCLUSION OF THE
CLAUSE "IN COMMERCE OR AFFECTING COMMERCE" IF THAT PHRASE ONLY APPLIES
TO THE WORD "TRANSPORTS."  IT IS FAR MORE LIKELY THAT THE PHRASE WAS
MEANT TO APPLY TO "POSSESSES" AND "RECEIVES" AS WELL AS "TRANSPORTS." 
AS THE COURT BELOW NOTED, THE INCLUSION OF SUCH A PHRASE "MIRRORS) THE
APPROACH TO FEDERAL CRIMINAL JURISDICTION REFLECTED IN MANY OTHER
FEDERAL STATUTES."  /8/ 

NEVERTHELESS, THE GOVERNMENT ARGUES THAT ITS READING IS TO BE
PREFERRED BECAUSE THE DEFENDANT'S NARROWER INTERPRETATION WOULD MAKE
TITLE VII REDUNDANT WITH TITLE IV OF THE SAME ACT.  TITLE IV, INTER
ALIA, MAKES IT A CRIME FOR FOUR CATEGORIES OF PEOPLE-- INCLUDING THOSE
CONVICTED OF A CRIME PUNISHABLE FOR A TERM EXCEEDING ONE YEAR-- "TO
SHIP OR TRANSPORT ANY FIREARM OR AMMUNITION IN INTERSTATE OR FOREIGN
COMMERCE . . . (OR) TO RECEIVE ANY FIREARM OR AMMUNITION WHICH HAS BEEN
SHIPPED OR TRANSPORTED IN INTERSTATE OR FOREIGN COMMERCE."  18 U.S.C.
922(G) AND (H).  AS SENATOR LONG, THE SPONSOR OF TITLE VII, REPRESENTED
TO SENATOR DODD, THE SPONSOR OF TITLE IV, TITLE VII INDEED DOES
COMPLEMENT TITLE IV. 114 CONG.REC.  14774; SEE ALSO 114 CONG.REC. 
16286.  RESPONDENT'S READING OF TITLE VII IS FULLY CONSISTENT WITH THIS
VIEW.  I VIEW.  FIRST, ALTHOUGH SUBSECTIONS OF THE TWO TITLES DO
ADDRESS THEIR PROHIBITIONS TO SOME OF THE SAME PEOPLE, EACH STATUTE
ALSO REACHES SUBSTANTIAL GROUPS OF PEOPLE NOT REACHED BY THE OTHER. 
/9/  SECONDLY, TITLE VII COMPLEMENTS TITLE IV BY PUNISHING A BROADER
CLASS OF BEHAVIOR.  EVEN UNDER RESPONDENT'S VIEW, A TITLE VII OFFENSE
IS MADE OUT IF THE FIREARM WAS POSSESSED OR RECEIVED "IN COMMERCE OR
AFFECTING COMMERCE"; HOWEVER, TITLE IV APPARENTLY DOES NOT REACH
POSSESSIONS OR INTRASTATE TRANSACTIONS AT ALL, EVEN THOSE WITH AN
INTERSTATE COMMERCE NEXUS, BUT IS LIMITED TO THE SENDING OR RECEIVING
OF FIREARMS AS PART OF AN INTERSTATE TRANSPORTATION.  /10/ 

IN ADDITION, WHATEVER READING IS ADOPTED, TITLE VII AND TITLE IV
ARE, IN PART, REDUNDANT.  THE INTERSTATE COMMERCE REQUIREMENT IN TITLE
VII MINIMALLY APPLIES TO TRANSPORTATION.  SINCE TITLE IV ALSO PROHIBITS
CONVICTED CRIMINALS FROM TRANSPORTING FIREARMS IN INTERSTATE COMMERCE,
THE TWO TITLES OVERLAP UNDER BOTH READINGS.  THE GOVERNMENT'S BROADER
READING OF TITLE VII DOES NOT ELIMINATE THE REDUNDANCY, BUT SIMPLY
CREATES A LARGER AREA IN WHICH THERE IS NO OVERLAP.  WHILE THE
GOVERNMENT WOULD BE ON STRONGER GROUND IF ITS READING WERE NECESSARY TO
GIVE TITLE VII SOME UNIQUE AND INDEPENDENT THRUST, THIS IS NOT THE CASE
HERE.  IN ANY EVENT, CIRCUMSTANCES SURROUNDING THE PASSAGE OF TITLE VII
MAKE PLAIN THAT TITLE VII WAS NOT CAREFULLY MOLDED TO COMPLEMENT TITLE
IV.  TITLE VII WAS A LAST-MINUTE SENATE AMENDMENT TO THE OMNIBUS CRIME
CONTROL AND SAFE STREETS ACT.  THE AMENDMENT WAS HASTILY PASSED, WITH
LITTLE DISCUSSION, NO HEARINGS, AND NO REPORT.  /11/  THE NOTION THAT
IT WAS ENACTED TO DOVETAIL NEATLY WITH TITLE IV RESTS PERHAPS ON A
CONCEPTION OF THE MODEL LEGISLATIVE PROCESS; BUT WE CANNOT PRETEND THAT
ALL STATUTES ARE MODEL STATUTES.  WHILE COURTS SHOULD INTERPRET A
STATUTE WITH AN EYE TO THE SURROUNDING STATUTORY LANDSCAPE AND AN EAR
FOR HARMONIZING POTENTIALLY DISCORDANT PROVISIONS, THESE GUIDING
PRINCIPLES ARE NOT SUBSTITUTES FOR CONGRESSIONAL LAWMAKING.  IN OUR
VIEW, NO CONCLUSION CAN BE DRAWN FROM TITLE IV CONCERNING THE CORRECT
INTERPRETATION OF TITLE VII. 

OTHER ASPECTS OF THE MEAGER LEGISLATIVE HISTORY, HOWEVER, DO PROVIDE
SOME SIGNIFICANT SUPPORT FOR THE GOVERNMENT'S INTERPRETATION.  ON THE
SENATE FLOOR, SENATOR LONG, WHO INTRODUCED SEC. 1202, DESCRIBED VARIOUS
EVILS THAT PROMPTED HIS STATUTE.  THESE EVILS INCLUDED ASSASSINATIONS
OF PUBLIC FIGURES AND THREATS TO THE OPERATION OF BUSINESSES
SIGNIFICANT ENOUGH IN THE AGGREGATE TO AFFECT COMMERCE.  /12/  SUCH
EVILS, WE NOTE, WOULD BE MOST THOROUGHLY MITIGATED BY FORBIDDING EVERY
POSSESSION OF ANY FIREARM BY SPECIFIED CLASSES OF ESPECIALLY RISKY
PEOPLE, REGARDLESS OF WHETHER THE GUN WAS POSSESSED, RECEIVED, OR
TRANSPORTED "IN COMMERCE OR AFFECTING COMMERCE."  IN ADDITION, SPECIFIC
REMARKS OF THE SENATOR CAN BE READ TO STATE THAT THE AMENDMENT REACHES
THE MERE POSSESSION OF GUNS WITHOUT ANY SHOWING OF AN INTERSTATE
COMMERCE NEXUS.  /13/  BUT SENATOR LONG NEVER SPECIFICALLY SAYS THAT NO
CONNECTION WITH COMMERCE NEED BE SHOWN IN THE INDIVIDUAL CASE.  AND
NOTHING IN HIS STATEMENTS EXPLAINS WHY, IF AN INTERSTATE COMMERCE NEXUS
IS IRRELEVANT IN INDIVIDUAL CASES, THE PHRASE "IN COMMERCE OR AFFECTING
COMMERCE" IS IN THE STATUTE AT ALL.  /14/  BUT EVEN IF SENATOR LONG'S
REMARKS WERE CRYSTAL CLEAR TO US, THEY WERE APPARENTLY NOT CRYSTAL
CLEAR TO HIS CONGRESSIONAL COLLEAGUES.  MEAGER AS THE DISCUSSION OF
TITLE VII WAS, ONE OF THE FEW CONGRESSMEN WHO DISCUSSED THE AMENDMENT
SUMMARIZED TITLE VII AS "MAKING) IT A FEDERAL CRIME TO TAKE, POSSESS,
OR RECEIVE A FIREARM ACROSS STATE LINES . . . ."  114 CONG.REC.  16298
(STATEMENT OF REP. POLLOCK). 

IN SHORT, "THE LEGISLATIVE HISTORY OF (THE) ACT HARDLY SPEAKS WITH
THAT CLARITY OF PURPOSE WHICH CONGRESS SUPPOSEDLY FURNISHES COURTS IN
ORDER TO ENABLE THEM TO ENFORCE ITS TRUE WILL."  UNIVERSAL CAMERA CORP.
V. NLRB, 340 U.S. 474, 483 (1951).  HERE, AS IN OTHER CASES, THE
VARIOUS REMARKS BY LEGISLATORS "ARE SUFFICIENTLY AMBIGUOUS INSOFAR AS
THIS NARROW ISSUE IS CONCERNED . . . TO INVITE MUTUALLY DESTRUCTIVE
DIALETIC," AND NOT MUCH MORE.  FCC V. COLUMBIA BROADCASTING SYSTEM, 311
U.S. 132, 136 (1940).  TAKEN TOGETHER, THE STATUTORY MATERIALS ARE
INCONCLUSIVE ON THE CENTRAL ISSUE OF WHETHER OR NOT EHE STATUTORY
PHRASE "IN COMMERCE OR AFFECTING COMMERCE" APPLIES TO "POSSESSES" AND
"RECEIVES" AS WELL AS "TRANSPORTS."  WHILE STANDING ALONE, THE
LEGISLATIVE HISTORY MIGHT TIP IN THE GOVERNMENT'S FAVOR, THE RESPONDENT
EXPLAINS FAR BETTER THE PRESENCE OF CRITICAL LANGUAGE IN THE STATUTE. 
THE GOVERNMENT CONCEDES THAT "THE STATUTE IS NOT A MODEL OF LOGIC OR
CLARITY."  PET. FOR CERT. 5.  AFTER "SEIZING) EVERY THING FROM WHICH
AID CAN BE DERIVED,"  UNITED STATES V. FISHER, 2 CRANCH 358, 386 (1805)
(MARSHALL, C.J.), WE ARE LEFT WITH AN AMBIGUOUS STATUTE. 

        II 

GIVEN THIS AMBIGUITY, WE ADOPT THE NARROWER READING:  THE PHRASE "IN
COMMERCE OR AFFECTING COMMERCE" IS PART OF ALL THREE OFFENSES, AND THE
PRESENT CONVICTION MUST BE SET ASIDE BECAUSE THE GOVERNMENT HAS FAILED
TO SHOW THE REQUISITE NEXUS WITH INTERSTATE COMMERCE.  THIS RESULT IS
DICTATED BY TWO WISE PRINCIPLES THIS COURT HAS LONG FOLLOWED. 

FIRST, AS WE HAVE RECENTLY REAFFIRMED, "AMBIGUITY CONCERNING THE
AMBIT OF CRIMINAL STATUTES SHOULD BE RESOLVED IN FAVOR OF LENITY." 
REWIS V. UNITED STATS, 401 U.S. 808, 812 (1971).  SEE ALSO LADNER V.
UNITED STATES, 358 U.S. 169, 177 (1958); BELL V. UNITED STATES, 349
U.S. 81 (1955); UNITED STATES V. FIVE GAMBLING DEVICES, 346 U.S. 441
(1953) (PLURALITY OPINION FOR AFFIRMANCE).  IN VARIOUS WAYS OVER THE
YEARS, WE HAVE STATED THAT "WHEN CHOICE HAS TO BE MADE BETWEEN TWO
READINGS OF WHAT CONDUCT CONGRESS HAS MADE A CRIME, IT IS APPROPRIATE,
BEFORE WE CHOOSE THE HARSHER ALTERNATIVE, TO REQUIRE THAT CONGRESS
SHOULD HAVE SPOKEN IN LANGUAGE THAT IS CLEAR AND DEFINITE."  UNITED
STATES V. UNIVERSAL C.I.T. CREDIT CORP., 344 U.S. 218, 221-222 (1952). 
THIS PRINCIPLE IS FOUNDED ON TWO POLICIES THAT HAVE LONG BEEN PART OF
OUR TRADITION.  FIRST, "A FAIR WARNING SHOULD BE GIVEN TO THE WORLD IN
LANGUAGE THAT THE COMMON WORLD WILL UNDERSTAND, OF WHAT THE LAW INTENDS
TO DO IF A CERTAIN LINE IS PASSED.  TO MAKE THE WARNING FAIR, SO FAR AS
POSSIBLE TH LINE SHOULD BE CLEAR."  MCBOYLE V. UNITED STATES, 283 U.S.
25, 27 (1931) (HOLMES, J.).  /15/  SEE ALSO UNITED STATES V. CARDIFF,
344 U.S. 174 (1952).  SECOND, BECAUSE OF THE SERIOUSNESS OF CRIMINAL
PENALTIES, AND BECAUSE CRIMINAL PUNISHMENT USUALLY REPRESENTS THE MORAL
CONDEMNATION OF THE COMMUNITY, LEGISLATURES AND NOT COURTS SHOULD
DEFINE CRIMINAL ACTIVITY.  THIS POLICY EMBODIES "THE INSTINCTIVE
DISTASTE AGAINST MEN LANGUISHING IN PRISON UNLESS THE LAWMAKER HAS
CLEARLY SAID THEY SHOULD."  H. FRIENDLY, MR. JUSTICE FRANKFURTER AND
THE READING OF STATUTES, IN BENCHMARKS 196, 209 (1967).  THUS, WHERE
THERE IS AMBIGUITY IN A CRIMINAL STATUTE, DOUBTS ARE RESOLVED IN FAVOR
OF THE DEFENDANT.  HERE, WE CONCLUDE THAT CONGRESS HAS NOT "PLAINLY AND
UNMISTAKABLY," UNITED STATES V. GRADWELL, 243 U.S. 476, 485 (1917),
MADE IT A FEDERAL CRIME FOR A CONVICTED FELON SIMPLY TO POSSESS A GUN
ABSENT SOME DEMONSTRATED NEXUS WITH INTERSTATE COMMERCE.     THERE IS A
SECOND PRINCIPLE SUPPORTING TODAY'S RESULT:  UNLESS CONGRESS CONVEYS
ITS PURPOSE CLEARLY, IT WILL NOT BE DEEMED TO HAVE SIGNIFICANTLY
CHANGED THE FEDERAL-STATE BALANCE.  /16/  CONGRESS HAS TRADITIONALLY
BEEN RELUCTANT TO DEFINE AS A FEDERAL CRIME CONDUCT READILY DENOUNCED
AS CRIMINAL BY THE STATES.  /17/  THIS CONGRESSIONAL POLICY IS ROOTED
IN THE SAME CONCEPTS OF AMERICAN FEDERALISM THAT HAVE PROVIDED THE
BASIS FOR JUDGE-MADE DOCTRINES.  SEE, E.G., YOUNGER V. HARRIS, 401 U.S.
37 (1971).  AS THIS COURT EMPHASIZED ONLY LAST TERM IN REWIS V. UNITED
STATES, SUPRA, WE WILL NOT BE QUICK TO ASSUME THAT CONGRESS HAS MEANT
TO EFFECT A SIGNIFICANT CHANGE IN THE SENSITIVE RELATION BETWEEN
FEDERAL AND STATE CRIMINAL JURISDICTION.  IN TRADITIONALLY SENSITIVE
AREAS, SUCH AS LEGISLATION AFFECTING THE FEDERAL BALANCE, THE
REQUIREMENT OF CLEAR STATEMENT ASSURES THAT THE LEGISLATURE HAS IN FACT
FACED, AND INTENDED TO BRING INTO ISSUE, THE CRITICAL MATTERS INVOLVED
IN THE JUDICIAL DECISION.  IN REWIS, WE DECLINED TO ACCEPT AN EXPANSIVE
INTERPRETATION OF THE TRAVEL ACT.  TO DO SO, WE SAID THEN, "WOULD ALTER
SENSITIVE FEDERAL-STATE RELATIONSHIPS (AND) COULD OVER-EXTEND LIMITED
FEDERAL POLICE RESOURCES."  WHILE WE NOTED THERE THAT "(IT IS NOT FOR
US TO WEIGH THE MERITS OF THESE FACTORS," WE WENT ON TO CONCLUDE THAT
"THE FACT THAT THEY ARE NOT EVEN DISCUSSED IN THE LEGISLATIVE HISTORY .
. . STRONGLY SUGGESTS THAT CONGRESS DID NOT INTEND THAT (THE STATUTE
HAVE THE BROAD REACH)."  401 U.S.,AT 812.  IN THE INSTANT CASE, THE
BROAD CONSTRUCTION URGED BY THE GOVERNMENT RENDERS TRADITIONALLY LOCAL
CRIMINAL CONDUCT A MATTER FOR FEDERAL ENFORCEMENT AND WOULD ALSO
INVOLVE A SUBSTANTIAL EXTENSION OF FEDERAL POLICE RESOURCES.  ABSENT
PROOF OF SOME INTERSTATE COMMERCE NEXUS IN EACH CASE, SEC. 1202(A)
DRAMATICALLY INTRUDES UPON TRADITIONAL STATE CRIMINAL JURISDICTION.  AS
IN REWIS, THE LEGISLATIVE HISTORY PROVIDES SCANTY BASIS FOR CONCLUDING
THAT CONGRESS FACED THESE SERIOUS QUESTIONS AND MEANT TO AFFECT THE
FEDERAL-STATE BALANCE IN THE WAY NOW CLAIMED BY THE GOVERNMENT.  ABSENT
A CLEARER STATEMENT OF INTENTION FROM CONGRESS THAN IS PRESENT HERE, WE
DO NOT INTERPRET SEC. 1202(A) TO REACH THE "MERE POSSESSION" OF
FIREARMS. 

        III 

HAVING CONCLUDED THAT THE COMMERCE REQUIREMENT IN SEC. 1202(A) MUST
BE READ AS PART OF THE "POSSESSES" AND "RECEIVES" OFFENSES, WE ADD A
FINAL WORD ABOUT THE NEXUS WITH INTERSTATE COMMERCE THAT MUST BE SHOWN
IN INDIVIDUAL CASES.  THE GOVERNMENT CAN OBVIOUSLY MEET ITS BURDEN IN A
VARIETY OF WAYS.  WE NOTE ONLY SOME OF THESE.  FOR EXAMPLE, A PERSON
"POSSESSES . . . IN COMMERCE OR AFFECTING COMMERCE" IF AT THE TIME OF
THE OFFENSE THE GUN WAS MOVING INTERSTATE OR ON AN INTERSTATE FACILITY,
OR IF THE POSSESSION AFFECTS COMMERCE.  SIGNIFICANTLY BROADER IN REACH,
HOWEVER, IS THE OFFENSE OF "RECEIVING) . . . IN COMMERCE OR AFFECTING
COMMERCE," FOR WE CONCLUDE THAT THE GOVERNMENT MEETS ITS BURDEN HERE IF
IT DEMONSTRATES THAT THE FIREARM RECEIVED HAS PREVIOUSLY TRAVELED IN
INTERSTATE COMMERCE.  /18/  THIS IS NOT THE NARROWEST POSSIBLE READING
OF THE STATUTE, BUT CANONS OF CLEAR STATEMENT AND STRICT CONSTRUCTION
DO "NOT MEAN THAT EVERY CRIMINAL STATUTE MUST BE GIVEN THE NARROWEST
POSSIBLE MEANING IN COMPLETE DISREGARD OF THE PURPOSE OF THE
LEGISLATURE."  UNITED STATES V. BRAMBLETT, 348 U.S. 503, 510 (1955). 
WE HAVE RESOLVED THE BASIC UNCERTAINTY ABOUT THE STATUTE IN FAVOR OF
THE NARROW READING, CONCLUDING THAT "IN COMMERCE OR AFFECTING COMMERCE"
IS PART OF THE OFFENSE OF POSSESSING OR RECEIVING A FIREARM.  BUT,
GIVEN THE EVILS THAT PROMPTED THE STATUTE AND THE BASIC LEGISLATIVE
PURPOSE OF RESTRICTING THE FIREARM-RELATED ACTIVITY OF CONVICTED
FELONS, THE READINGS WE GIVE TO THE COMMERCE REQUIREMENT, ALTHOUGH NOT
ALL NARROW, ARE APPROPRIATE.  AND CONSISTENT WITH OUR REGARD FOR THE
SENSITIVE RELATION BETWEEN FEDERAL AND STATE CRIMINAL JURISDICTION, OUR
READING PRESERVES AS AN ELEMENT OF ALL THE OFFENSES A REQUIREMENT
SUITED TO FEDERAL CRIMINAL JURISDICTION ALONE. 

THE JUDGMENT IS

              AFFIRMED. 

/1/  SECTION 1202(A) READS IN FULL: 

"ANY PERSON WHO-- 

"(1) HAS BEEN CONVICTED BY A COURT OF THE UNITED STATES OR OF A
STATE OR ANY POLITICAL SUBDIVISION THEREOF OF A FELONY, OR 

"(2) HAS BEEN DISCHARGED FROM THE ARMED FORCES UNDER DISHONORABLE
CONDITIONS, OR 

"(3) HAS BEEN ADJUDGED BY A COURT OF THE UNITED STATES OR OF A STATE
OR ANY POLITICAL SUBDIVISION THEREOF OF BEING MENTALLY INCOMPETENT, OR 

"(4) HAVING BEEN A CITIZEN OF THE UNITED STATES HAS RENOUNCED HIS
CITIZENSHIP, OR 

"(5) BEING AN ALIEN IS ILLEGALLY OR UNLAWFULLY IN THE UNITED STATES,
AND WHO RECEIVES, POSSESSES, OR TRANSPORTS IN COMMERCE OR AFFECTING
COMMERCE, AFTER THE DATE OF ENACTMENT OF THIS ACT, ANY FIREARM SHALL BE
FINED NOT MORE THAN $10,000 OR IMPRISONED FOR NOT MORE THAN TWO YEARS,
OR BOTH." 

/2/  RESPONDENT WAS ACQUITTED ON ANOTHER COUNT CHARGING HIM WITH
CARRYING A FIREARM DURING THE COMMISSION OF A FELONY (THE SALE OF A
NARCOTIC DRUG), A FEDERAL OFFENSE UNDER 18 U.S.C. 924(C)(2). 

/3/  AT THIS DATE, SIX CIRCUITS AND NUMEROUS DISTRICT COURTS HAVE
DECIDED THE ISSUE.  THE GOVERNMENT'S VIEW WAS ADOPTED IN UNITED STATES
V. CABBLER, 429 F.2D 577 (CA4 1970), CERT. DENIED, 400 U.S. 901; UNITED
STATES V. DONOFRIO, 405 F.2D 1054 (CA5 1971); STEVENS V. UNITED STATES,
440 F.2D 144 (CA6 1971) (ONE JUDGE DISSENTING); UNITED STATES V.
SYNNES, 438 F.2D 764 (CA8 1971); UNITED STATES V. DANIELS, 431 F.2D 697
(CA9 1970).  THE RESULT REACHED BY THE SECOND CIRCUIT IN THIS CASE HAS
ALSO BEEN REACHED IN UNITED STATES V. HARBIN, 313 F.SUPP.  50 (ND IND.
1970); UNITED STATES V. STEED, NO. CR 70-57 (WD TENN., MAY 11, 1970);
UNITED STATES V. PHELPS, NO. CR 14,465 (MD TENN., FEB. 10, 1970);
UNITED STATES V. FRANCIS, NO. CR 12,684 (ED TENN., DEC. 12, 1969). 

/4/  IN LIGHT OF OUR DISPOSITION OF THE CASE, WE DO NOT REACH THE
QUESTION WHETHER, UPON APPROPRIATE FINDINGS, CONGRESS CAN
CONSTITUTIONALLY PUNISH THE "MERE POSSESSION" OF FIREARMS; THUS, WE
NEED NOT CONSIDER THE RELEVANCE, IN THAT CONNECTION, OF OUR RECENT
DECISION IN PEREZ V. UNITED STATES, 402 U.S. 146 (1971).  THE QUESTION
WHETHER THE DEFINITION OF "FELONY" IN SEC. 1202(C)(2) CREATES A
CLASSIFICATION VIOLATING THE FIFTH AMENDMENT WAS NOT RAISED IN THE
GOVERNMENT'S PETITION FOR CERTIORARI, AND IS ALSO NOT CONSIDERED HERE. 

/5/  FRANKFURTER, SOME REFLECTIONS ON THE READING OF STATUTES, 47
COL.L.REV.  527, 543 (1947). 

/6/  COMPARE UNITED STATES V. STANDARD BREWERY, INC., 251 U.S. 210,
218 (1920), WITH FTC V. MANDEL BROTHERS, INC., 359 U.S. 385, 389-390
(1959); SEE ALSO 2 J.SUTHERLAND, STATUTORY CONSTRUCTION 4921 (3D ED.
1943); K. LLEWELLYN, THE COMMON LAW TRADITION 527 (1960). 

THE GOVERNMENT, NOTING THAT THERE IS NO COMMA AFTER "TRANSPORTS,"
ARGUES THAT THE PUNCTUATION INDICATES A CONGRESSIONAL INTENT TO LIMIT
THE QUALIFYING PHRASE TO THE LAST ANTECEDENT.  BUT MANY LEADING
GRAMMARIANS, WHILE SOMETIMES NOTING THAT COMMAS AT THE END OF SERIES
CAN AVOID AMBIGUITY, CONCEDE THAT USE OF SUCH COMMAS IS DISCRETIONARY. 
SEE, E.G., B. EVANS & C. EVANS, A DICTIONARY OF CONTEMPORARY AMERICAN
USAGE 103 (1957); M. NICHOLSON, A DICTIONARY OF AMERICAN-ENGLISH USAGE
94 )1957); R. COPPERUD, A DICTIONARY OF USAGE AND STYLE 94-95 (1964);
CF. W. STRUNK & E. WHITE, THE ELEMENTS OF STYLE 1-2 (1959).  WHEN
GRAMMARIANS ARE DIVIDED, AND SURELY WHERE THEY ARE CHEERFULLY TOLERANT,
WE WILL NOT ATTACH SIGNIFICANCE TO AN OMITTED COMMA.  IT IS ENOUGH TO
SAY THAT THE STATUTE'S PUNCTUATION IS FULLY CONSISTENT WITH THE
RESPONDENT'S INTERPRETATION, AND THAT IN THIS CASE GRAMMATICAL
EXPERTISE WILL NOT HELP TO CLARIFY THE STATUTE'S MEANING. 

/7/  THE GOVERNMENT URGES THAT "TRANSPORTS" INCLUDES THE ACT OF
"CAUSING A FIREARM TO BE TRANSPORTED," AND THEREFORE WOULD CONNOTE AN
OFFENSE SEPARATE IN SOME CASES FROM RECEIVES" OR "POSSESSES."  FROM
THIS, THE GOVERNMENT ARGUES THAT "CONGRESS MIGHT HAVE FELT THAT THE
BROADER SCOPE OF THE TERM 'TRANSPORTS,' AS COMPARED TO THE TERMS
'RECEIVES' OR 'POSSESSES,' JUSTIFIED ITS QUALIFICATION BY THE
INTERSTATE COMMERCE REQUIREMENT."  BRIEF FOR THE UNITED STATES 14-15. 
THE GOVERNMENT'S VIEW ABOUT THE COMPARATIVE BREADTH OF THE VARIOUS
OFFENSES CERTAINLY DOES NOT FOLLOW FROM ITS DEFINITION OF
"TRANSPORTS."  BUT BEYOND THAT, ITS ARGUMENT ABOUT WHAT CONGRESS "MIGHT
HAVE FELT" IS PURELY SPECULATIVE, AND FINDS NO SUPPORT IN ANY ARGUABLE
PURPOSE OF THE STATUTE.  THERE IS CERTAINLY NO BASIS FOR CONCLUDING
THAT CONGRESS WAS LESS CONCERNED ABOUT THE TRANSPORTING AND SUPPLYING
OF GUNS THAN THEIR ACQUISITION. 

/8/  434 F.2D,AT 1298.  SEE, E.G., 18 U.S.C. 2421 (PROSTITUTION); 18
U.S.C. 1952 (RAVEL ACT); 18 U.S.C. 1951 (ROBBERY AND EXTORTION); 18
U.S.C. 1231 (STRIKEBREAKING); 18 U.S.C. 1201 (KIDNAPING); 18 U.S.C.
1084 (GAMBLING); 18 U.S.C. 842(I) (EXPLOSIVES); 15 U.S.C. 1 ET SEQ.
(ANTITRUST); 15 U.S.C. 77E (SECURITIES FRAUD). 

/9/  TITLE VII LIMITS THE FIREARM-RELATED ACTIVITY OF CONVICTED
FELONS, DISHONORABLE DISCHARGEES FROM THE ARMED SERVICES, PERSONS
ADJUDGED "MENTALLY INCOMPETENT," ALIENS ILLEGALLY IN THE COUNTRY, AND
FORMER CITIZENS WHO HAVE RENOUNCED THEIR CITIZENSHIP.  SEE N. 1, SUPRA.
A FELONY IS DEFINED AS "ANY OFFENSE PUNISHABLE BY IMPRISONMENT FOR A
TERM EXCEEDING ONE YEAR, BUT DOES NOT INCLUDE ANY OFFENSE (OTHER THAN
ONE INVOLVING A FIREARM OR EXPLOSIVE) CLASSIFIED AS A MISDEMEANOR UNDER
THE LAWS OF A STATE AND PUNISHABLE BY A TERM OF IMPRISONMENT OF TWO
YEARS OR LESS . . . ."  18 U.S.C. APP. 1202(C)(2). 

TITLE IV REACHES PERSONS "UNDER INDICTMENT FOR, OR . . . CONVICTED
IN ANY COURT OF, A CRIME PUNISHABLE BY IMPRISONMENT FOR A TERM
EXCEEDING ONE YEAR"; FUGITIVES FROM JUSTICE; USERS OR ADDICTS OF
VARIOUS DRUGS; PERSONS ADJUDICATED AS "MENTAL DEFECTIVES) OR . . .
COMMITTED" TO A MENTAL INSTITUTION.  18 U.S.C. 922(G) AND (H). 

/10/  TITLE IV, 18 U.S.C. 922(G) AND (H), IS A MODIFIED AND
RECODIFIED VERSION OF 15 U.S.C. 902(E) AND (F) (1964 ED.), 75 STAT.
757, WHICH IN TURN AMENDED THE ORIGINAL STATUTE PASSED IN 1938, 52
STAT. 1250, 1251.  EACH AMENDMENT ENLARGED THE GROUP OF PEOPLE COMING
WITHIN THE ACT'S SUBSTANTIVE PROHIBITIONS AGAINST TRANSPORTATION OR
RECEIPT OF FIREARMS IN INTERSTATE COMMERCE.  THE WORDING OF THE
SUBSTANTIVE OFFENSE HAS REMAINED IDENTICAL, ALTHOUGH THE ORIGINAL ACT
HAD A PROVISION THAT POSSESSION OF A FIREARM "SHALL BE PRESUMPTIVE
EVIDENCE THAT SUCH THAT SUCH FIREARM OR AMMUNITION WAS SHIPPED OR
TRANSPORTED OR RECEIVED (IN INTERSTATE OR FOREIGN COMMERCE)."  THAT
PRESUMPTION WAS STRUCK DOWN IN TOT V. UNITED STATES, 319 U.S. 463
(1943), AND THE COURT THERE NOTED : 

"(THE ACT IS CONFINED TO THE RECEIPT OF FIREARMS OR AMMUNITION AS A
PART OF INTERSTATE TRANSPORTATION AND DOES NOT EXTEND TO THE RECEIPT,
IN AN INTRASTATE TRANSACTION, OF SUCH ARTICLES WHICH, AT SOME PRIOR
TIME, HAVE BEEN TRANSPORTED INTERSTATE."  ID., AT 466. 

WHILE THE REACH OF TITLE IV ITSELF IS A QUESTION TO BE DECIDED
FINALLY SOME OTHER DAY, THE GOVERNMENT HAS PRESENTED HERE NO LEARNING
OR OTHER EVIDENCE INDICATING THAT THE 1968 ACT CHANGED THE PRIOR
APPROACH TO THE "RECEIPT" OFFENSE.  SEE, E.G., S. REP. NO. 1097, 90TH
CONG., 2D SESS., 115, (968). 

/11/  THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968 STARTED
ITS LIFE AS A MEASURE DESIGNED TO AID STATE AND LOCAL GOVERNMENTS IN
LAW ENFORCEMENT BY MEANS OF FINANCIAL AND ADMINISTRATIVE ASSISTANCE. 
SEE H.R. REP. NO. 488, 90TH CONG., 1ST SESS. (1967).  THE BILL PASSED
THE HOUSE ON AUGUST 8, 1967, AND WENT TO THE SENATE.  A SIMILAR BILL
WAS INTRODUCED IN THE SENATE (S.917) AND WENT TO THE COMMITTEE ON THE
JUDICIARY, WHICH REWROTE IT COMPLETELY.  SEE S. REP. NO. 1097, 90TH
CONG., 2D SESS., SUPRA.  THE AMENDMENTS INCLUDED THE MUCH-DEBATED
PROVISIONS REGARDING THE ADMISSIBILITY OF CONFESSIONS, WIRETAPPING, AND
STATE FIREARMS CONTROL. 

ON MAY 17, 1968, SENATOR LONG INTRODUCED ON THE FLOOR HIS AMENDMENT
TO S. 917, WHICH HE DESIGNATED TITLE VII.  HIS INTRODUCTORY REMARKS SET
FORTH THE PRUPOSE OF THE AMENDMENT.  114 CONG.REC.  13867-13869.  ABOUT
A WEEK LATER HE EXPLAINED HIS AMENDMENT ONCE AGAIN.  THERE WAS A BRIEF
DEBATE; THE REACTION WAS FAVORABLE BUT CAUTIOUS, WITH "FURTHER THOUGHT"
AND "STUDY" BEING SUGGESTED BY BY SEVERAL FAVORABLY INCLINED SENATORS
WHO OBSERVED SOME PROBLEMS WITH THE BILL AS DRAFTED.  UNEXPECTEDLY,
HOWEVER, THERE WAS A CALL FOR A VOTE AND TITLE VII PASSED WITHOUT
MODIFICATION.  SEE 114 CONG.REC.  14772-14775.  THE AMENDMENT RECEIVED
ONLY PASSING MENTION IN THE HOUSE DISCUSSION OF THE BILL, 114
CONG.REC.  16286, 16298, AND NEVER RECEIVED COMMITTEE CONSIDERATION OR
STUDY IN THE HOUSE EITHER. 

/12/  SEE 114 CONG.REC.  13868-13871, 14772-14775. 

/13/  FOR EXAMPLE, SENATOR LONG BEGAN HIS FLOOR STATEMENT BY
ANNOUNCING: 

"I HAVE PREPARED AN AMENDMENT WHICH I WILL OFFER AT AN APPROPRIATE
TIME, SIMPLY SETTING FORTH THE FACT THAT ANYBODY WHO HAS BEEN CONVICTED
OF A FELONY (OR COMES WITHIN CERTAIN OTHER CATEGORIES) . . . IS NOT
PERMITTED TO POSSESS A FIREARM . . . ."  114 CONG.REC.  13868.     /14/
FOR THE SAME, AND ADDITIONAL, REASONS, SEC. 1201, WHICH CONTAINS THE
CONGRESSIONAL "FINDINGS" APPLICABLE TO SEC. 1202(A), IS NOT DECISIVE
SUPPORT FOR THE GOVERNMENT.  THAT SECTION REPORTS THAT: 

"THE CONGRESS HEREBY FINDS AND DECLARES THAT THE RECEIPT,
POSSESSION, OR TRANSPORTATION OF A FIREARM BY FELONS, VETERANS WHO ARE
DISCHARGED UNDER DISHONORABLE CONDITIONS, MENTAL INCOMPETENTS, ALIENS
WHO ARE ILLEGALLY IN THE COUNTRY, AND FORMER CITIZENS WHO HAVE
RENOUNCED THEIR CITIZENSHIP, CONSTITUTES-- 

"(1) A BURDEN ON COMMERCE OR THREAT AFFECTING THE FREE FLOW OF
COMMERCE,     "(2) A THREAT TO THE SAFETY OF THE PRESIDENT OF THE
UNITED STATES AND VICE PRESIDENT OF THE UNITED STATES, 

"(3) AN IMPEDIMENT OR A THREAT TO THE EXERCISE OF FREE SPEECH AND
THE FREE EXERCISE OF A RELIGION GUARANTEED BY THE FIRST AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES, AND 

"(4) A THREAT TO THE CONTINUED AND EFFECTIVE OPERATION OF THE
GOVERNMENT OF THE UNITED STATES AND OF THE GOVERNMENT OF EACH STATE
GUARANTEED BY ARTICLE IV OF THE CONSTITUTION."  THE GOVERNMENT ARGUES
THAT THESE FINDINGS WOULD HAVE BEEN "WHOLLY UNNECESSARY" UNLESS
CONGRESS INTENDED TO PROHIBIT ALL RECEIPTS AND POSSESSIONS OF FIREARMS
BY FELONS.  BUT THESE FINDINGS OF "BURDENS" AND "THREATS" SIMPLY STATE
CONGRESS' VIEW OF THE CONSTITUTIONAL BASIS FOR ITS POWER TO ACT; THE
FINDINGS DO NOT TELL US HOW MUCH OF CONGRESS' PERCEIVED POWER WAS IN
FACT INVOKED.  THAT THE FINDINGS IN FACT SUPPORT A STATUTE BROADER THAN
THE ONE ACTUALLY PASSED IS SUGGESTED BY THE FACT THAT "IN COMMERCE OR
AFFECTING COMMERCE" DOES NOT APPEAR AT ALL IN THE INTRODUCTORY CLAUSE
TO THE "FINDINGS," EVEN THOUGH SEC. 1202(A) CONTAINS THE PHRASE AND
CONCEDEDLY REACHES ONLY TRANSPORTATION "IN COMMERCE OR AFFECTING
COMMERCE." 

/15/  HOLMES PREFACED HIS MUCH-QUOTED STATEMENT WITH THE OBSERVATION
THAT "IT IS NOT LIKELY THAT A CRIMINAL WILL CAREFULLY CONSIDER THE TEXT
OF THE LAW BEFORE HE MURDERS OR STEALS . . . ."  BUT IN THE CASE OF GUN
ACQUISITION AND POSSESSION IT IS NOT UNREASONABLE TO IMAGINE A CITIZEN
ATTEMPTING TO "(STEER) A CAREFUL COURSE BETWEEN VIOLATION OF THE
STATUTE (AND LAWFUL CONDUCT)," UNITED STATES V. HOOD, 343 U.S. 148, 151
(1952).  OF COURSE, WHERE THERE IS A STATE LAW PROHIBITING FELONS FROM
POSSESSING FIREARMS, AS IN NEW YORK STATE, N.Y. PENAL LAW SEC. 265.05
(SUPP. 1971-1972), IT MAY BE UNREAL TO ARGUE THAT THERE ARE NOTICE
PROBLEMS UNDER THE FEDERAL LAW.  THERE ARE MANY STATES, HOWEVER, THAT
DO NOT HAVE THEIR OWN LAWS PROHIBITING FELONS FROM POSSESSING
FIREARMS.  SEE GEISEL, ROLL, & WETTICK, THE EFFECTIVENESS OF STATE AND
LOCAL REGULATION OF HANDGUNS:  A STATISTICAL ANALYSIS, 1969 DUKE L.J.
647, 652-653.  SINCE EX-OFFENDERS IN THESE STATES ARE LIMITED ONLY BY
THE FEDERAL GUN CONTROL LAWS, THE NOTICE PROBLEM OF THAT LAW MAY BE
QUITE REAL. 

/16/  APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 513 (1940); UNITED
STATES V. FIVE GAMBLING DEVICES, 346 U.S. 441, 449-450 (1953)
(PLURALITY OPINION); FTC V. BUNTE BROS., INC., 312 U.S. 349, 351, 354
355 (1941); FRANKFURTER, SOME REFLECTIONS ON THE READING OF STATUTES,
47 COL.L.REV.  527, 539-540 (1947).  CF. AUTO WORKERS V. WISCONSIN
BOARD, 351 U.S. 266, 274-275 (1956); PALMER V. MASSACHUSETTS, 308 U.S.
220, 225-226 (1957). 

/17/  H. HART & A. SACKS, THE LEGAL PROCESS:  BASIC PROBLEMS IN THE
MAKING AND APPLICATION OF LAW 1241 (TENT.  ED. 1958). 

/18 THIS READING PRESERVES A SIGNIFICANT DIFFERENCE BETWEEN THE
"RECEIPT" OFFENSES UNDER TITLE IV AND TITLE VII.  SEE SUPRA, AT 342
343. 

MR. JUSTICE BRENNAN JOINS THE JUDGMENT OF THE COURT AND THE OPINION
EXCEPT FOR PART III.  NO QUESTION OF THE QUANTUM OF EVIDENCE NECESSARY
TO ESTABLISH THE GOVERNMENT'S PRIMA FACIE CASE IS BEFORE THE COURT AND
HE WOULD AWAIT A CASE PROPERLY PRESENTING THAT QUESTION BEFORE DECIDING
IT. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE JOINS,
DISSENTING. 

I CANNOT JOIN THE COURT'S OPINION AND JUDGMENT.  FIVE OF THE SIX
UNITED STATES COURTS OF APPEALS THAT HAVE PASSED UPON THE ISSUE
PRESENTED BY THIS CASE HAVE DECIDED IT ADVERSELY TO THE POSITION URGED
BY THE RESPONDENT HERE.  UNITED STATES V. CABBLER, 429 F.2D 577 (CA4
1970), CERT. DENIED, 400 U.S. 901; UNITED STATES V. MULLINS, 432 F.2D
1003 (CA4 1970); UNITED STATES V. DONOFRIO, 450 F.2D 1054 (CA5 1971);
STEVENS V. UNITED STATES, 440 F.2D 144 (CA6 1971) (ONE JUDGE
DISSENTING); UNITED STATES V. SYNNES, 438 F.2D 764 (CA8 1971); UNITED
STATES V. WILEY, 438 F.2D 773 (A8 1971); UNITED STATES V. TAYLOR, 438
F.2D 774 (CA8 1971); UNITED STATES V. DANIELS, 431 F.2D 697 (CA9 1970);
UNITED STATES V. CROW, 439 F.2D 1193 (CA9 1971).  ONLY THE SECOND
CIRCUIT STANDS OPPOSED.  /1/ 

1.  THE STATUTE, 18 U.S.C. APP. 1202(A), WHEN IT SPEAKS OF ONE "WHO
RECEIVES, POSSESSES, OR TRANSPORTS IN COMMERCE OR AFFECTING COMMERCE,"
ALTHOUGH ARGUABLY AMBIGUOUS AND, AS THE GOVERNMENT CONCEDES, "NOT A
MODEL OF LOGIC OR CLARITY,"  /2/  IS CLEAR ENOUGH.  THE STRUCTURE OF
THE VITAL LANGUAGE AND ITS PUNCTUATION MAKE IT REFER TO ONE WHO
RECEIVES, TO ONE WHO POSSESSES, AND TO ONE WHO TRANSPORTS IN COMMERCE. 
IF ONE WISHED TO SAY THAT HE WOULD WELCOME A CAT, WOULD WELCOME A DOG,
OR WOULD WELCOME A COW THAT JUMPS OVER THE MOON, HE WOULD LIKELY SAY "I
WOULD LIKE TO HAVE A CAT, A DOG, OR A COW THAT JUMPS OVER THE MOON." 
SO IT IS HERE. 

2.  THE MEANING THE COURT IMPLANTS ON THE STATUTE IS JUSTIFIED ONLY
BY THE ADDITION AND INTERPOSITION OF A COMMA AFTER WORD "TRANSPORTS." 
I PERCEIVE NO WARRANT FOR THIS JUDICIAL TRANSFIGURATION. 

3.  IN THE VERY SAME STATUTE THE PHRASE "AFTER THE DATE OF ENACTMENT
OF THIS ACT" IS SEPARATED BY COMMAS AND UNDENIABLY MODIFIES EACH OF THE
PRECEDING WORDS, "RECEIVES," "POSSESSES," AND "TRANSPORTS."  OBVIOUSLY,
THEN, THE DRAFTSMAN-- AND THE CONGRESS-- KNEW THE USE OF COMMAS FOR
PHRASE MODIFICATION.  WE SHOULD GIVE EFFECT TO THE ONLY MEANING
ATTENDANT UPON THAT USE. 

4.  THE SPECIFIC FINDING IN 18 U.S.C. APP. 1201 /3/  CLEARLY
DEMONSTRATES THAT CONGRESS WAS ATTEMPTING TO REACH AND PROHIBIT EVERY
POSSESSION OF A FIREARM BY A FELON; THAT CONGRESS FOUND THAT SUCH
POSSESSION, WHETHER INTERSTATE OR INTRASTATE, AFFECTED INTERSTATE
COMMERCE; AND THAT CONGRESS DID NOT CONCLUDE THAT INTRASTATE POSSESSION
WAS A MATTER OF LESS CONCERN TO IT THAN INTERSTATE POSSESSION.  THAT
FINDING WAS UNNECESSARY IF CONGRESS ALSO REQUIRED PROOF THAT EACH
RECEIPT OR POSSESSION OF A FIREARM WAS IN OR AFFECTED INTERSTATE OR
FOREIGN COMMERCE. 

5.  SENATOR LONG'S EXPLANATORY COMMENTS REVEAL CLEARLY THE PURPOSE,
THE INTENT, AND THE EXTENT OF THE LEGISLATION: 

     "I HAVE PREPARED AN AMENDMENT WHICH I WILL OFFER AT AN

  APPROPRIATE TIME, SIMPLY SETTING FORTH THE FACT THAT ANYBODY WHO

HAS BEEN CONVICTED OF A FELONY . . . IS NOT PERMITTED TO POSSESS

  A FIREARM . . . . 

     "IT MIGHT BE WELL TO ANALYZE, FOR A MOMENT, THE LOGIC

  INVOLVED.  WHEN A MAN HAS BEEN CONVICTED OF A FELONY, UNLESS-- AS

  THIS BILL SETS FORTH-- HE HAS BEEN EXPRESSLY PARDONED BY THE

  PRESIDENT AND THE PARDON STATES THAT THE PERSON IS TO BE

  PERMITTED TO POSSESS FIREARMS IN THE FUTURE, THAT MAN WOULD HAVE

NO RIGHT TO POSSESS FIREARMS.  HE WOULD BE PUNISHED CRIMINALLY IF

  HE IS FOUND IN POSSESSION OF THEM."  114

CONG.REC. 

  13868. 

     "SO CONGRESS SIMPLY FINDS THAT THE POSSESSION OF THESE WEAPONS

  BY THE WRONG KIND OF PEOPLE IS EITHER A BURDEN ON COMMERCE OR A

  THREAT THAT AFFECTS THE FREE FLOW OF COMMERCE. 

     "YOU CANNOT DO BUSINESS IN AN AREA, AND YOU CERTAINLY CANNOT
DO

  AS MUCH OF IT AND DO IT AS WELL AS YOU WOULD LIKE, IF IN ORDER TO

  DO BUSINESS YOU HAVE TO GO THROUGH A STREET WHERE THERE ARE

  BURGLARS, MURDERERS, AND ARSONISTS ARMED TO THE TEETH AGAINST

INNOCENT CITIZENS.  SO THE THREAT CERTAINLY AFFECTS THE FREE FLOW

  OF COMMERCE."  114 DONG.REC.  13869. 

     "WHAT THE AMENDMENT SEEKS TO DO IS TO MAKE IT UNLAWFUL FOR A

FIREARM-- BE IT A HANDGUN, A MACHINEGUN, A LONG-RANGE RIFLE, OR

  ANY KIND OF FIREARM-- TO BE IN THE POSSESSION OF A CONVICTED

  FELON WHO HAS NOT BEEN PARDONED AND WHO HAS THEREFORE LOST HIS

  RIGHT TO POSSESS FIREARMS . . . . IT ALSO RELATES TO THE

  TRANSPORTATION OF FIREARMS. 

.          .          .          . 

     "CLAUSES 1-5 DESCRIBE PERSONS WHO, BY THEIR ACTIONS, HAVE

  DEMONSTRATED THAT THEY ARE DANGEROUS, OR THAT THEY MAY BECOME

  DANGEROUS.  STATED SIMPLY, THEY MAY NOT BE TRUSTED TO POSSESS A

FIREARM WITHOUT BECOMING A THREAT TO SOCIETY.  THIS TITLE WOULD

  APPLY BOTH TO HAND GUNS AND TO LONG GUNS. 

.          .          .          . 

     "ALL OF THESE MURDERERS HAD SHOWN VIOLENT TENDENCIES BEFORE

  THEY COMMITTED THE CRIME FOR WHICH THEY ARE MOST INFAMOUS.  THEY

  SHOULD NOT HAVE BEEN PERMITTED TO POSSESS A GUN.  YET, THERE IS

  NO FEDERAL LAW WHICH WOULD DENY POSSESSION TO THESE

UNDESIRABLES. 

     "THE KILLER OF MEDGAR EVERS, THE MURDERER OF THE THREE CIVIL

  RIGHTS WORKERS IN MISSISSIPPI, THE DEFENDANTS WHO SHOT CAPTAIN

  LEMUEL PENN (ON A HIGHWAY WHILE HE WAS DRIVING BACK TO WASHINGTON

  AFTER COMPLETION OF RESERVE MILITARY DUTY) WOULD ALL BE FREE

  UNDER PRESENT FEDERAL LAW TO ACQUIRE ANOTHER GUN AND REPEAT THOSE

SAME SORTS OF CRIMES IN THE FUTURE. 

        .          .          .          . 

     "SO, UNDER TITLE VII, EVERY CITIZEN COULD POSSESS A GUN UNTIL

  THE COMMISSION OF HIS FIRST FELONY.  UPON HIS CONVICTION,

  HOWEVER, TITLE VII WOULD DENY EVERY ASSASSIN, MURDERER, THIEF AND

  BURGLAR OF THE RIGHT TO POSSESS A FIREARM IN THE FUTURE EXCEPT

  WHERE HE HAS BEEN PARDONED BY THE PRESIDENT OR A STATE GOVERNOR

AND HAS BEEN EXPRESSLY AUTHORIZED BY HIS PARDON TO POSSESS A

  FIREARM. 

      "IT HAS BEEN SAID THAT CONGRESS LACKS THE POWER TO OUTLAW
MERE

  POSSESSION OF WEAPONS . . . . 

     " . . . THE IMPORTANT POINT IS THAT THIS LEGISLATION

  DEMONSTRATES THAT POSSESSION OF A DEADLY WEAPON BY THE WRONG

  PEOPLE CAN BE CONTROLLED BY CONGRESS, WITHOUT REGARD TO WHERE THE

  POLICE POWER RESIDES UNDER THE CONSTITUTION. 

     "WITHOUT QUESTION, THE FEDERAL GOVERNMENT DOES HAVE POWER TO

 CONTROL POSSESSION OF WEAPONS WHERE SUCH POSSESSION COULD BECOME

  A THREAT TO INTERSTATE COMMERCE . . . . 

"STATE GUN CONTROL LAWS WHERE THEY EXIST HAVE PROVEN INADEQUATE

  TO BAR POSSESSION OF FIREARMS FROM THOSE MOST LIKELY TO USE THEM

  FOR UNLAWFUL PURPOSES . . . .

        .          .          .          . 

     "NOR WOULD TITLE VII IMPINGE UPON THE RIGHTS OF CITIZENS

  GENERALLY TO POSSESS FIREARMS FOR LEGITIMATE AND LAWFUL

  PURPOSES.  IT DEALS SOLELY WITH THOSE WHO HAVE DEMONSTRATED THAT

  THEY CANNOT BE TRUSTED TO POSSESS A FIREARM-- THOSE WHOSE PRIOR

  ACTS-- MOSTLY VOLUNTARY-- HAVE PLACED THEM OUTSIDE OF OUR SOCIETY

  . . . .

        .          .          . . 

     " . . . I AM CONVINCED THAT WE HAVE ENOUGH CONSTITUTIONAL
POWER

  TO PROHIBIT THESE CATEGORIES OF PEOPLE FROM POSSESSING,

  RECEIVING, OR TRANSPORTING A FIREARM . . . .

        .          .          .          . 

     "THIS AMENDMENT WOULD PROVIDE THAT A CONVICTED FELON WHO

PARTICIPATES IN ONE OF THESE MARCHES AND IS CARRYING A FIREARM

  WOULD BE VIOLATING THE LAW . . . ."  114 CONG.REC.  14773-14774. 

ONE CANNOT DETECT IN THESE REMARKS ANY PURPOSE TO RESTRICT OR LIMIT THE
TYPE OF POSSESSION THAT WAS BEING CONSIDERED FOR PROSCRIPTION. 

6.  THE COURT'S CONSTRUCTION OF SEC. 1202(A), LIMITING ITS
APPLICATION TO INTERSTATE POSSESSION AND RECEIPT, SHRINKS THE STATUTE
INTO SOMETHING LITTLE MORE THAN A DUPLICATION OF 18 U.S.C. 922(G) AND
(H).  I CANNOT ASCRIBE TO CONGRESS SUCH A GESTURE OF
NONACCOMPLISHMENT. 

I THUS CONCLUDE THAT SEC. 1202(A) WAS INTENDED TO AND DOES REACH ALL
POSSESSIONS AND RECEIPTS OF FIREARMS BY CONVICTED FELONS, AND THAT THE
COURT SHOULD MOVE ON AND DECIDE THE CONSTITUTIONAL ISSUE PRESENT IN
THIS CASE. 

/1/  UNAPPEALED DISTRICT COURT DECISIONS ARE IN CONFLICT.  THOSE
UPHOLDING THE GOVERNMENT'S POSITION INCLUDE UNITED STATES V. DAVIS, 314
F.SUPP.  1161 (ND MISS.  1970); UNITED STATES V. VICARY, NO. CR 44,205
(ED MICH., JUNE 29, 1970) (EN BANC); UNITED STATES V. CHILDRESS, NO.
8039-R (ED VA., JAN. 6, 1969); UNITED STATES V. BOGGS, NO. 8138 (YO.,
JUNE 17, 1970).  THOSE OPPOSED INCLUDE UNITED STATES V. HARBIN, 313
F.SUPP.  50 (ND IND. 1970); UNITED STATES V. STEED, NO. CR 70-57 (WD
TENN., MAY 11, 1970); UNITED STATES V. PHELPS, NO. CR 14,465 (MD TENN.,
FEB. 10, 1970); UNITED STATES V. FRANCIS, NO. CR 12,684 (ED TENN., DEC.
12, 1969). 

/2/  PET. FOR CERT. 5. 

/3/  "SEC.  1201.  CONGRESSIONAL FINDINGS AND DECLARATION. 

"THE CONGRESS HEREBY FINDS AND DECLARES THAT THE RECEIPT, POSSESSION,
OR TRANSPORTATION OF A FIREARM BY FELONS . . . CONSTITUTES-- 

"(1) A BURDEN ON COMMERCE OR THREAT AFFECTING THE FREE FLOW OF
COMMERCE . . . ." 

ROGER A. PAULEY ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, SAMUEL HUNTINGTON, AND BEATRICE ROSENBERG. 

WILLIAM E. HELLERSTEIN, BY APPOINTMENT OF THE COURT, 402 U.S. 927,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS PHYLIS
SKLOOT BAMBERGER. 
..END :



SCHILB V. KUEBEL, 404 U.S. 357 


       SCHILB ET AL. V. KUEBEL ET AL.

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 70-90.  ARGUED OCTOBER 12, 1971-- DECIDED DECEMBER 20,

           1971 


ILLINOIS LAW PROVIDES THREE WAYS IN WHICH AN ACCUSED CAN SECURE HIS
PRETRIAL RELEASE:  (1) PERSONAL RECOGNIZANCE; (2) EXECUTION OF A BAIL
BOND, WITH A DEPOSIT OF 10% OF THE BAIL, ALL BUT 10% OF WHICH
(AMOUNTING TO 1% OF THE BAIL) IS RETURNED ON PERFORMANCE OF THE BOND
CONDITIONS, AND (3) EXECUTION OF A BAIL BOND, SECURED BY A FULL-AMOUNT
DEPOSIT IN CASH, AUTHORIZED SECURITIES, OR CERTAIN REAL ESTATE, ALL OF
WHICH IS RETURNED ON PERFORMANCE OF THE BOND CONDITIONS.  APPELLANT
SCHILB, CHARGED WITH TWO TRAFFIC OFFENSES, SECURED PRETRIAL RELEASE
AFTER DEPOSITING 10% OF THE BAIL FIXED.  HE WAS CONVICTED OF ONE
OFFENSE AND ACQUITTED OF THE OTHER.  AFTER HE PAID HIS FINE, ALL BUT 1%
OF THE BAIL (AMOUNTING TO $7.50) WAS REFUNDED.  IN THIS CLASS ACTION HE
THEREAFTER CHALLENGED THE ILLINOIS SYSTEM ON DUE PROCESS AND EQUAL
PROTECTION GROUNDS, CLAIMING THAT THE 1% RETENTION CHARGE IS IMPOSED ON
ONLY ONE SEGMENT OF THE CLASS GAINING PRETRIAL RELEASE, AND ON THE POOR
BUT NOT ON THE RICH; AND THAT ITS IMPOSITION ON AN ACCUSED FOUND
INNOCENT CONSTITUTES A COURT COST AGAINST THE NONGUILTY.  THE TRIAL
COURT DISMISSED SCHILB'S COMPLAINT, AND THE STATE SUPREME COURT
AFFIRMED.  HELD: 

1.  THE ILLINOIS BAIL SYSTEM DOES NOT VIOLATE EQUAL PROTECTION
REQUIREMENTS.  PP. 364-370. 

(A) THE FACTS THAT THE STATE HAS NO SAFEKEEPING COSTS WHERE RELEASE
IS ON PERSONAL RECOGNIZANCE AND HAS NEVER IMPOSED A CHARGE WITH RESPECT
TO A RECOGNIZANCE PROVIDE A RATIONAL BASIS FOR DISTINGUISHING THAT
SITUATION FROM THE SITUATIONS WHERE DEPOSITS ARE MADE.  THOUGH THE
ADMINISTRATIVE COSTS OF THE DEPOSIT SYSTEMS ARE SUBSTANTIALLY THE SAME,
OTHER FACTORS AFFORD A RATIONAL BASIS FOR MAKING NO CHARGE UNDER THE
FULL-AMOUNT-DEPOSIT SYSTEM.  RINALDI V. YEAGER, 384 U.S. 305,
DISTINGUISHED.  PP. 367-369. 

(B) THERE IS NO INDICATION THAT THE PERSONAL RECOGNIZANCE SYSTEM IS
NOT USED WITHOUT REGARD TO THE ECONOMIC STATUS OF THE ACCUSED, OR THAT
THE FULL-DEPOSIT SYSTEM ACTUALLY FAVORS THE AFFLUENT.  PP. 369-370. 

2.  NO DUE PROCESS DENIAL RESULTS FROM RETENTION OF THE 1% CHARGE,
WHICH IS AN ADMINISTRATIVE FEE (AND NOT A COST OF PROSECUTION), IMPOSED
ON ALL-- GUILTY AND INNOCENT ALIKE-- WHO SEEK ITS BENEFIT.  GIACCIO V.
PENNSYLVANIA, 382 U.S. 399, DISTINGUISHED.  PP. 370-371. 

46 ILL. 2D 538, 264 N.E.2D 377, AFFIRMED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND WHITE AND MARSHALL, JJ., JOINED.  MARSHALL, J., FILED A
CONCURRING OPINION, POST, P. 372.  DOUGLAS, J., FILED A DISSENTING
OPINION, POST, P. 373.  STEWART, J., FILED A DISSENTING OPINION, IN
WHICH BRENNAN, J., JOINED, POST, P. 381. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

JOHN SCHILB, OF BELLEVILLE, ILLINOIS, WAS ARRESTED ON JANUARY 16,
1969, AND CHARGED (A) WITH LEAVING THE SCENE OF AN AUTOMOBILE ACCIDENT
AND (B) WITH OBSTRUCTING TRAFFIC.  IN ORDER TO GAIN HIS LIBERTY PENDING
TRIAL, AND IN ACCORD WITH THE ILLINOIS BAIL STATUTES HEREINAFTER
DESCRIBED, SCHILB DEPOSITED $75 IN CASH WITH THE CLERK OF THE COURT. 
THIS AMOUNT WAS 10% OF THE AGGREGATE BAIL FIXED ON THE TWO CHARGES
($500 ON THE FIRST AND $250 ON THE SECOND).  AT HIS ENSUING TRIAL
SCHILB WAS ACQUITTED OF THE CHARGE OF LEAVING THE SCENE, BUT WAS
CONVICTED OF TRAFFIC OBSTRUCTION.  WHEN HE PAID HIS FINE, THE AMOUNT
SCHILB HAD DEPOSITED WAS RETURNED TO HIM DECREASED, HOWEVER, BY $7.50
RETAINED AS "BAIL BOND COSTS" BY THE COURT CLERK PURSUANT TO THE
STATUTE.  THE AMOUNT SO RETAINED WAS 1% OF THE SPECIFIED BAIL AND 10%
OF THE AMOUNT ACTUALLY DEPOSITED. 

SCHILB, BY THIS PURPORTED STATE CLASS ACTION AGAINST THE COURT
CLERK, THE COUNTY, AND THE COUNTY TREASURER, ATTACKS THE STATUTORY 1%
CHARGE ON FOURTEENTH AMENDMENT DUE PROCESS AND EQUAL PROTECTION
GROUNDS.  /1/  THE CIRCUIT COURT OF ST. CLAIR COUNTY UPHELD THE STATUTE
AND DISMISSED THE COMPLAINT.  THE SUPREME COURT OF ILLINOIS AFFIRMED,
WITH TWO JUSTICES DISSENTING.  46 ILL.2D 538, 264 N.E.2D 377 (1970). 
WE NOTED PROBABLE JURISDICTION.  402 U.S. 928 (1971). 

        I 

THE ILLINOIS BAIL STATUTES COMPOSE ARTICLE 110 OF THE STATE'S CODE
OF CRIMINAL PROCEDURE OF 1963, MADE EFFECTIVE JANUARY 1, 1964.  THIS
CODE COMPLEMENTED ILLINOIS' THEN NEW AND REVISED CRIMINAL CODE OF 1961,
MADE EFFECTIVE JANUARY 1, 1962.  THE WORK OF REVISION OF THE
THERETOFORE EXISTING STATUTES WAS THAT OF A JOINT COMMITTEE OF THE
ILLINOIS STATE AND CHICAGO BAR ASSOCIATIONS.  SEE 1 ILL.REV.STAT. 
1963, P. 1629. 

PRIOR TO 1964 THE PROFESSIONAL BAIL BONDSMAN SYSTEM WITH ALL ITS
ABUSES /2/  WAS IN FULL AND ODOROUS BLOOM IN ILLINOIS.  UNDER THAT
SYSTEM THE BAIL BONDSMAN CUSTOMARILY COLLECTED THE MAXIMUM FEE (10% OF
THE AMOUNT OF THE BOND) PERMITTED BY STATUTE, HOUSE BILL NO. 734,
APPROVED JULY 17, 1959, ILL. LAWS 1959, PP. 1372, 1376, AND RETAINED
THAT ENTIRE AMOUNT EVEN THOUGH THE ACCUSED FULLY SATISFIED THE
CONDITIONS OF THE BOND.  SEE PEOPLE EX REL. GENDRON V. INGRAM, 34
ILL.2D 623, 626, 217 N.E.2D 803, 805 (1966).  PAYMENT OF THIS
SUBSTANTIAL "PREMIUM" WAS REQUIRED OF THE GOOD RISK AS WELL AS OF THE
BAD.  THE RESULTS WERE THAT A HEAVY AND IRRETRIEVABLE BURDEN FELL UPON
THE ACCUSED, TO THE EXCELLENT PROFIT OF THE BONDSMAN, AND THAT
PROFESSIONAL BONDSMEN, AND NOT THE COURTS, EXERCISED SIGNIFICANT
CONTROL OVER THE ACTUAL WORKINGS OF THE BAIL SYSTEM. 

ONE OF THE STATED PURPOSES OF THE NEW BAIL PROVISIONS IN THE 1963
CODE WAS TO RECTIFY THIS OFFENSIVE SITUATION.  THE PURPOSE APPEARS TO
HAVE BEEN ACCOMPLISHED.  IT IS SAID THAT THE BAIL BONDSMAN ABRUPTLY
DISAPPEARED IN ILLINOIS "DUE PRIMARILY TO THE SUCCESS OF THE TEN
PERCENT BAIL DEPOSIT PROVISION."  BOYLE BAIL UNDER THE JUDICIAL
ARTICLE, 17 DEPAUL L.REV.  267, 272 (1968).  SEE KAMIN, BAIL
ADMINISTRATION IN ILLINOIS, 53 ILL.B.J. 674, 680 (1965). 

        II 

ARTICLE 110 OF THE 1963 CODE, AS IT READ AT THE TIME SCHILB WAS
ARRESTED AND CHARGED, PROVIDED THAT AN ELIGIBLE ACCUSED COULD OBTAIN
PRETRIAL RELEASE IN ONE OF THREE WAYS: 

(1) UNDER SEC. 110-2 HE MAY BE RELEASED ON HIS PERSONAL
RECOGNIZANCE.  /3/ 

(2) UNDER SEC. 110-7 HE MAY EXECUTE A BAIL BOND AND DEPOSIT WITH THE
CLERK CASH EQUAL TO ONLY 10% OF THE BAIL OR $25, WHICHEVER IS THE
GREATER.  /4/  WHEN BAIL IS MADE IN THIS WAY AND THE CONDITIONS OF THE
BOND HAVE BEEN PERFORMED, THE CLERK RETURNS TO THE ACCUSED 90% OF THE
SUM DEPOSITED.  THE REMAINING 10% (1% OF THE BAIL) IS RETAINED BY THE
CLERK "AS BAIL BOND COSTS." 

(3) UNDER SEC. 110-8 HE MAY EXECUTE A BAIL BOND AND SECURE IT BY A
DEPOSIT WITH THE CLERK OF THE FULL AMOUNT OF THE BAIL IN CASH, OR IN
STOCKS AND BONDS AUTHORIZED FOR TRUST FUNDS IN ILLINOIS, OR BY
UNENCUMBERED NONEXEMPT ILLINOIS REAL ESTATE WORTH DOUBLE THE AMOUNT OF
THE BAIL.  /5/  WHEN BAIL IS MADE IN THIS WAY AND THE CONDITIONS OF THE
BOND HAVE BEEN PERFORMED, THE CLERK RETURNS THE DEPOSIT OF CASH OR
STOCKS OR BONDS, OR RELEASES THE REAL ESTATE, AS THE CASE MAY BE,
WITHOUT CHARGE OR RETENTION OF ANY AMOUNT. 

IN EACH CASE BAIL IS FIXED BY A JUDICIAL OFFICER.  SECTION 110-5
PRESCRIBES FACTORS TO BE CONSIDERED IN FIXING THE AMOUNT OF BAIL.  /6/
UNDER SEC. 110-6 EITHER THE STATE OR THE DEFENDANT MAY APPLY TO THE
COURT FOR AN INCREASE OR FOR A REDUCTION IN THE AMOUNT OF BAIL OR FOR
ALTERATION OF THE BOND'S CONDITIONS.  /7/ 

THE CHOICE BETWEEN SEC. 110-7 AND SEC. 110-8 IS RESERVED TO THE
ACCUSED. 

THE THINKING AND INTENTIONS OF THE JOINT COMMITTEE REVISERS ARE
APPARENT FROM THE COMMITTEE'S COMMENTS, AS REVISED BY ITS CHAIRMAN,
PROFESSOR CHARLES H. BOWMAN, AND REPRODUCED IN ILL. ANN. STAT., C. 38
(SMITH-HURD ED. 1970).  /8/ 

THE PARTIES HAVE STIPULATED THAT WHEN BAIL IN A PARTICULAR CASE IS
FIXED, THE JUDGE'S "DISCRETION IN SUCH RESPECT IS NOT GUIDED BY
STATUTE, RULE OF COURT OR ANY DEFINITE, FIXED STANDARD; VARIOUS AND
DIVERS JUDGES IN FACT FIX THE AMOUNT OF BAIL FOR THE SAME TYPES OF
OFFENSES AT VARIOUS AND DIVERS AMOUNTS, WITHOUT RELATIONSHIP AS TO
GUILT OR INNOCENCE OF THE PARTICULAR DEFENDANT IN A CRIMINAL CHARGE,
AND WITHOUT RELATIONSHIP OF THE PARTICULAR OFFENSE CHARGED AND THE BAIL
FIXED."  THEY HAVE ALSO STIPULATED, "THE ACTUAL COST OF ADMINISTERING
THE PROVISIONS OF SAID SECTIONS 110-7 AND 110-8 ARE SUBSTANTIALLY THE
SAME BUT THERE MAY PROBABLY BE A SLIGHTLY GREATER COST IN THE
ADMINISTRATION OF SECTION 110-8." 

 III 

THE COURT MORE THAN ONCE HAS SAID THAT STATE LEGISLATIVE REFORM BY
WAY OF CLASSIFICATION IS NOT TO BE INVALIDATED MERELY BECAUSE THE
LEGISLATURE MOVES ONE STEP AT A TIME.  "THE PROHIBITION OF THE EQUAL
PROTECTION CLAUSE GOES NO FURTHER THAN THE INVIDIOUS DISCRIMINATION." 
WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489 (1955).  "LEGISLATURES
ARE PRESUMED TO HAVE ACTED CONSTITUTIONALLY . . . AND THEIR STATUTORY
CLASSIFICATIONS WILL BE SET ASIDE ONLY IF NO GROUNDS CAN BE CONCEIVED
TO JUSTIFY THEM.  . .  WITH THIS MUCH DISCRETION, A LEGISLATURE
TRADITIONALLY HAS BEEN ALLOWED TO TAKE REFORM 'ONE STEP AT A TIME,
ADDRESSING ITSELF TO THE PHASE OF THE PROBLEM WHICH SEEMS MOST ACUTE TO
THE LEGISLATIVE MIND.'"  MCDONALD V. BOARD OF ELECTION COMMISSIONERS,
394 U.S. 802, 809 (1969).  THE MEASURE OF EQUAL PROTECTION HAS BEEN
DESCRIBED VARIOUSLY AS WHETHER "THE DISTINCTIONS DRAWN HAVE SOME BASIS
IN PRACTICAL EXPERIENCE," SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301,
331 (1966), OR WHETHER THE LEGISLATURE'S ACTION FALLS SHORT OF "THE
INVIDIOUS DISCRIMINATION," WILLIAMSON V. LEE OPTICAL CO., 348 U.S.,AT
489, OR WHETHER "ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO
JUSTIFY" THE STATUTORY DISCRIMINATION, MCGOWAN V. MARYLAND, 366 U.S.
420, 426 (1961); SEE UNITED STATES V. MARYLAND SAVINGS-SHARE INS.
CORP., 400 U.S. 4, 6 (1970), OR WHETHER THE CLASSIFICATION IS "ON THE
BASIS OF CRITERIA WHOLLY UNRELATED TO THE OBJECTIVE OF (THE) STATUTE,"
REED V. REED, ANTE, P. 71, AT 76.  BUT THE COURT ALSO HAS REFINED THIS
TRADITIONAL TEST AND HAS SAID THAT A STATUTORY CLASSIFICATION BASED
UPON SUSPECT CRITERIA OR AFFECTING "FUNDAMENTAL RIGHTS" WILL ENCOUNTER
EQUAL PROTECTION DIFFICULTIES UNLESS JUSTIFIED BY A "COMPELLING
GOVERNMENTAL INTEREST."  SHAPIRO V. THOMPSON, 394 U.S. 618, 634, 638
(1969); OREGON V. MITCHELL, 400 U.S. 112, 247 N. 30 (1970) (OPINION OF
BRENNAN, WHITE, AND MARSHALL, JJ.). 

BAIL, OF COURSE, IS BASIC TO OUR SYSTEM OF LAW, STACK V. BOYLE, 342
U.S. 1 (1951); HERZOG V. UNITED STATES, 75 S.CT. 349, 351, 99 L.ED.
1299, 1301 (1955) (OPINION OF DOUGLAS, J.), AND THE EIGHTH AMENDMENT'S
PROSCRIPTION OF EXCESSIVE BAIL HAS BEEN ASSUMED TO HAVE APPLICATION TO
THE STATES THROUGH THE FOURTEENTH AMENDMENT.  PILKINTON V. CIRCUIT
COURT, 324 F.2D 45, 46 (CA8 1963); SEE ROBINSON V. CALIFORNIA, 370 U.S.
660, 666 (1962), AND ID., AT 675 (DOUGLAS, J., CONCURRING).  BUT WE ARE
NOT AT ALL CONCERNED HERE WITH ANY FUNDAMENTAL RIGHT TO BAIL OR WITH
ANY EIGHTH AMENDMENT-FOURTEENTH AMENDMENT QUESTION OF BAIL
EXCESSIVENESS.  OUR CONCERN, INSTEAD, IS WITH THE 1% COST-RETENTION
PROVISION.  THIS SMACKS OF ADMINISTRATIVE DETAIL AND OF PROCEDURE AND
IS HARDLY TO BE CLASSIFIED AS A "FUNDAMENTAL" RIGHT OR AS BASED UPON
ANY SUSPECT CRITERION.  THE APPLICABLE MEASURE, THEREFORE, MUST BE THE
TRADITIONAL ONE:  IS THE DISTINCTION DRAWN BY THE STATUTES INVIDIOUS
AND WITHOUT RATIONAL BASIS?  DANDRIDGE V. WILLIAMS, 397 U.S. 471, 483
487 (1970).  SEE RICHARDSON V. BELCHER, ANTE, P. 78, AT 81. 

IV 

WITH THIS BACKGROUND, WE TURN TO THE APPELLANTS' PRIMARY ARGUMENT. 
IT IS THREEFOLD:  (1) THAT THE 1% RETENTION CHARGE UNDER SEC. 110-7(F)
IS IMPOSED ON ONLY ONE SEGMENT OF THE CLASS GAINING PRETRIAL RELEASE:
(2) THAT IT IS IMPOSED ON THE POOR AND NONAFFLUENT AND NOT ON THE RICH
AND AFFLUENT; /9/  AND (3) THAT ITS IMPOSITION WITH RESPECT TO AN
ACCUSED FOUND INNOCENT AMOUNTS TO A COURT COST ASSESSED AGAINST THE NOT
GUILTY PERSON. 

WE ARE COMPELLED TO NOTE PRELIMINARILY THAT THE ATTACK ON THE
ILLINOIS BAIL STATUTES, IN A VERY DISTINCT SENSE, IS PARADOXICAL.  THE
BENEFITS OF THE NEW SYSTEM, AS COMPARED WITH THE OLD, ARE CONCEDED. 
/10/  AND THE APPELLANTS RECOGNIZE THAT UNDER THE PRE-1964 SYSTEM
SCHILB'S PARTICULAR BAIL BOND COST WOULD HAVE BEEN 10% OF HIS BAIL, OR
$75; THAT THIS PREMIUM PRICE FOR HIS PRETRIAL FREEDOM, ONCE PAID, WAS
IRRETRIEVABLE; AND THAT, IF HE COULD NOT HAVE RAISED THE $75, HE WOULD
HAVE BEEN CONSIGNED TO JAIL UNTIL HIS TRIAL.  THUS, UNDER THE OLD
SYSTEM THE COST OF SCHILB'S PRETRIAL FREEDOM WAS $75- BUT UNDER THE NEW
IT WAS ONLY $7.50.  WHILE ACKNOWLEDGING THIS OBVIOUS BENEFIT OF THE
STATUTORY REFORM, SCHILB AND HIS CO-APPELLANTS DECRY THE CLASSIFICATION
THE STATUTES MAKE AND PRESENT THE USUAL ARGUMENT THAT THE LEGISLATION
MUST BE STRUCK DOWN BECAUSE IT DOES NOT REFORM ENOUGH. 

A. IT IS TRUE THAT NO CHARGE IS MADE TO THE ACCUSED WHO IS RELEASED
ON HIS PERSONAL RECOGNIZANCE.  WE ARE ADVISED, HOWEVER, THAT THIS WAS
ALSO TRUE UNDER THE OLD (PRE-1964) SYSTEM AND THAT "ILLINOIS HAS NEVER
CHARGED PEOPLE OUT ON RECOGNIZANCE."  /11/  THUS, THE BURDEN ON THE
STATE WITH RESPECT TO A PERSONAL RECOGNIZANCE IS NO MORE UNDER THE NEW
SYSTEM THAT WHAT THE STATE HAD ASSUMED UNDER THE OLD.  ALSO, WITH A
RECOGNIZANCE, THERE IS NOTHING THE STATE HOLDS FOR SAFEKEEPING, WITH
RESULTING RESPONSIBILITY AND ADDITIONAL PAPERWORK.  ALL THIS PROVIDES A
RATIONAL BASIS FOR DISTINGUISHING BETWEEN THE PERSONAL RECOGNIZANCE AND
THE DEPOSIT SITUATIONS. 

THERE IS ALSO, HOWEVER, NO RETENTION CHARGE TO THE ACCUSED WHO
DEPOSITS THE FULL AMOUNT OF CASH BAIL OR SECURITIES OR REAL ESTATE. 
YET THE ADMINISTRATIVE COST ATTENDANT UPON THE 10% DEPOSIT AND THAT
UPON THE FULL DEPOSIT ARE, BY THE STIPULATION, "SUBSTANTIALLY THE SAME"
WITH, INDEED, ANY HIGHER COST INCURRED WITH RESPECT TO THE FULL
DEPOSIT. 

THIS PERHAPS IS A MORE TENUOUS DISTINCTION, BUT WE CANNOT CONCLUDE
THAT IT IS CONSTITUTIONALLY VULNERABLE.  ONE WHO DEPOSITS SECURITIES OR
ENCUMBERS HIS REAL ESTATE PRECLUDES THE USE OF THAT PROPERTY FOR OTHER
PURPOSES.  AND ONE WHO DEPOSITS THE FULL AMOUNT OF HIS BAIL IN CASH IS
DISPOSSESSED OF A PRODUCTIVE ASSET THROUGHOUT THE PERIOD OF THE
DEPOSIT; PRESUMABLE, AT LEAST, ITS INTERIM POSSESSION BY THE STATE
ACCRUES TO THE BENEFIT OF THE STATE.  FURTHER, THE STATE'S PROTECTION
AGAINST THE EXPENSES THAT INEVITABLY ARE INCURRED WHEN BAIL IS JUMPED
IS GREATER WHEN 100% CASH OR SECURITIES OR REAL ESTATE IS DEPOSITED OR
OBLIGATED THAN WHEN ONLY 10% OF THE BAIL AMOUNT IS ADVANCED.  THE JOINT
COMMITTEE'S AND THE STATE LEGISLATURE'S DECISION IN BALANCING THESE
OPPOSING CONSIDERATIONS IN THE WAY THAT THEY DID CANNOT BE DESCRIBED AS
LACKING IN RATIONALITY TO THE POINT WHERE EQUAL PROTECTION
CONSIDERATIONS REQUIRE THAT THEY BE STRUCK DOWN. 

RINALDI V. YEAGER, 384 U.S. 305 (1966), LENDS NO SUPPORT TO THE
APPELLANTS HERE.  IN THAT CASE A NEW JERSEY STATUTE IMPOSED THE COST OF
A TRANSCRIPT UPON THE INDIGENT APPELLANT WHO HAD BEEN CONVICTED OF A
CRIME AND WAS SENTENCED TO PRISON AND WHO THEN WAS UNSUCCESSFUL ON HIS
APPEAL.  THE STATUTE, HOWEVER, DID NOT IMPOSE THAT COST UPON THE
INDIGENT APPELLANT WHO LIKEWISE WAS CONVICTED OF A CRIME, AND WAS
UNSUCCESSFUL ON HIS APPEAL, BUT WHO HAD RECEIVED A SUSPENDED SENTENCE
OR WHO HAD BEEN PLACED ON PROBATION OR WHO HAD BEEN FINED RATHER THAN
SENTENCED TO PRISON.  THE DISTINCTION THE NEW JERSEY STATUTE DREW
BETWEEN APPELLANTS WAS BASED ONLY UPON THE NATURE OF THEIR PUNISHMENT,
AND THE BURDEN WAS IMPOSED ONLY UPON THOSE WHO WERE CONFINED.  THE
COURT HELD, AND RIGHTLY SO, THAT A PUNISHMENT DISTINCTION HAD NO
RATIONAL CONNECTION WITH A TRANSCRIPT COST AND SERVED TO DENY EQUAL
PROTECTION TO THE CONVICTED APPELLANT WHOSE LIBERTY WAS AT ISSUE ON THE
APPEAL.  MR. JUSTICE STEWART, IN SPEAKING FOR THE COURT, SAID, 

     "THE EQUAL PROTECTION CLAUSE REQUIRES MORE OF A STATE LAW THAN

  NONDISCRIMINATORY APPLICATION WITHIN THE CLASS IT ESTABLISHES. 

  IT ALSO IMPOSES A REQUIREMENT OF SOME RATIONALITY IN THE NATURE

  OF THE CLASS SINGLED OUT.  TO BE SURE, THE CONSTITUTIONAL DEMAND

  IS NOT A DEMAND THAT A STATUTE NECESSARILY APPLY EQUALLY TO ALL

  PERSONS.  'THE CONSTITUTION DOES NOT REQUIRE THINGS WHICH ARE

  DIFFERENT IN FACT . . . TO BE TREATED IN LAW AS THOUGH THEY WERE

  THE SAME.'  HENCE, LEGISLATION MAY IMPOSE SPECIAL BURDENS UPON

  DEFINED CLASSES IN ORDER TO ACHIEVE PERMISSIBLE ENDS.  BUT THE

  EQUAL PROTECTION CLAUSE DOES REQUIRE THAT, IN DEFINING A CLASS

  SUBJECT TO LEGISLATION, THE DISTINCTIONS THAT ARE DRAWN HAVE

  'SOME RELEVANCE TO THE PURPOSE FOR WHICH THE CLASSIFICATION IS

MADE.'"  364 U.S.,AT 308-309 (CITATIONS OMITTED). 

THE NEW JERSEY DISTINCTION THUS WAS INVIDIOUS AND WITHOUT RATIONALITY
FOR IT WAS NOT RELATED TO THE FISCAL OBJECTIVES OF THE STATUTE AND
RESTED ON NO ADMINISTRATIVE CONVENIENCE.     B. THE POOR-MAN-AFFLUENT
MAN ARGUMENT CENTERS, OF COURSE, IN GRIFFIN V. ILLINOIS, 351 U.S. 12
(1956), AND IN THE MANY LATER CASES THAT "REAFFIRM ALLEGIANCE TO THE
BASIC COMMAND THAT JUSTICE BE APPLIED EQUALLY TO ALL PERSONS." 
WILLIAMS V. ILLINOIS, 399 U.S. 235, 241 (1970). 

IN NO WAY DO WE WITHDRAW TODAY FROM THE GRIFFIN PRINCIPLE.  THAT
REMAINS STEADFAST.  BUT IT IS BY NO MEANS CERTAIN, AS THE APPELLANTS
SUGGEST, THAT THE 10% DEPOSIT PROVISION UNDER SEC. 110-7 IS A PROVISION
FOR THE BENEFIT OF THE POOR AND THE LESS AFFLUENT AND THAT THE FULL
DEPOSIT PROVISION OF SEC. 110-8 IS ONE FOR THE RICH AND THE MORE
AFFLUENT.  IT SHOULD BE OBVIOUS THAT THE POOR MAN'S REAL HOPE AND
AVENUE FOR RELIEF IS THE PERSONAL RECOGNIZANCE PROVISION OF SEC. 100
2.  WE DO NOT PRESUME TO SAY, AS THE APPELLANTS IN THEIR BRIEF
INTIMATE, /12/  THAT SEC. 110-2 IS NOT UTILIZED BY ILLINOIS JUDGES AND
MADE AVAILABLE FOR THE POOR AND THE LESS AFFLUENT. 

NEITHER IS IT ASSURED, AS THE APPELLANTS ALSO SUGGEST, THAT THE
AFFLUENT WILL TAKE ADVANTAGE OF THE FULL-DEPOSIT PROVISION OF SEC. 110
8, WITH NO RETENTION CHARGE, AND THAT THE LESS AFFLUENT ARE RELEGATED
TO THE 10% DEPOSIT PROVISION OF SEC. 110-7 AND THE 1% RETENTION
CHARGE.  THE RECORD IS SILENT, BUT THE FLOW INDEED MAY BE THE OTHER
WAY.  THE AFFLUENT, MORE AWARE OF AND MORE EXPERIENCED IN THE
MARKETPLACE, MAY SEE THE ADVANTAGE, IN THESE DAYS OF HIGH INTEREST
RATES, IN RETAINING THE USE OF 90% OF THE BAIL AMOUNT.  A 5% OR GREATER
RETURN ON THIS 90% IN A SHORT PERIOD OF TIME MORE THAN OFFSETS THE 1%
RETENTION CHARGE.  IN OTHER WORDS, IT IS BY NO MEANS CLEAR THAT THE
ROUTE OF SEC. 110-8 IS MORE ATTRACTIVE TO THE AFFLUENT DEFENDANT THAN
THE SEC. 110-7 ROUTE.  THE SITUATION, THEREFORE, WHOLLY APART FROM THE
FACT THAT APPELLANT SCHILB HIMSELF HAS NOT PLEADED INDIGENCY, IS NOT
ONE WHERE WE MAY ASSUME THAT THE ILLINOIS PLAN WORKS TO DENY RELIEF TO
THE POOR MAN MERELY BECAUSE OF HIS POVERTY. 

C. THE COURT-COST ARGUMENT IS THAT THE PERSON FOUND INNOCENT BUT
ALREADY "PUT TO THE EXPENSE, DISGRACE AND ANGUISH OF A TRIAL" IS "THEN
ASSESSED A COST FOR EXERCISING HIS RIGHT TO RELEASE PENDING TRIAL." 
/13/  GIACCIO V. PENNSYLVANIA, 382 U.S. 399 (1966), IS CITED.  GIACCIO
WAS A HOLDING THAT AN ANCIENT PENNSYLVANIA STATUTE THAT PERMITTED THE
JURY TO IMPOSE COURT COSTS UPON AN ACQUITTED DEFENDANT, IN ORDER TO
OFFSET THE EXPENSES OF PROSECUTION, VIOLATED THE ABSENCE OF ANY
STANDARDS PREVENTING THE ARBITRARY IMPOSITION OF COSTS.  THE COURT THUS
DID NOT REACH THE MERITS, ALTHOUGH MR. JUSTICE STEWART AND MR. JUSTICE
FORTAS, EACH SEPARATELY CONCURRING, 382 U.S., AT 405, FELT THAT THE
VERY IMPOSITION OF COSTS UPON AN ACQUITTED DEFENDANT WAS VIOLATIVE OF
DUE PROCESS. 

GIACCIO IS NOT DISPOSITIVE PRECEDENT FOR THE APPELLANTS HERE. 
CERTAINLY SEC. 110-7 IS NOT SUBJECT TO ATTACK FOR VAGUENESS OR FOR LACK
OF STANDARDS.  NEITHER IS IT A VEHICLE FOR THE IMPOSITION OF COSTS OF
PROSECUTION AS WAS THE PENNSYLVANIA STATUTE.  INSTEAD, SEC. 110-7
AUTHORIZES RETENTION OF THE 1% AS "BAIL BOND COSTS."  THIS IS WHAT THAT
DESCRIPTION IMPLIES, NAMELY, AN ADMINISTRATIVE COST IMPOSED UPON ALL
THOSE, GUILTY AND INNOCENT ALIKE, WHO SEEK THE BENEFIT OF 110-7.  THIS
CONCLUSION IS SUPPORTED BY THE PRESENCE OF THE LONG-ESTABLISHED
ILLINOIS RULE AGAINST THE IMPOSITION OF COSTS OF PROSECUTION UPON AN
ACQUITTED OR DISCHARGED CRIMINAL DEFENDANT, WELLS V. MCCULLOCH, 13 ILL.
606 (1852), AND BY THE ILLINOIS COURT'S OWN DETERMINATION, 46 ILL.2D,AT
551-552, 264 N.E.2D, AT 384, THAT THE CHARGE UNDER SEC. 110-7(F) IS AN
ADMINISTRATIVE FEE AND NOT A COST OF PROSECUTION IMPOSED UNDER ILL.
REV. STAT., C. 38, SEC. 180-3 (1969), ONLY UPON THE CONVICTED
DEFENDANT. 

        V 

FINALLY, THE APPELLANTS WOULD POINT OUT THAT ARTICLE 110 HAS ITS
FEDERAL COUNTERPART IN SEC. 3(A) OF THE BAIL REFORM ACT OF 1966, PUB.
L. 89-465, 89TH CONG., 2D SESS., 80 STAT. 214, AND IN PARTICULAR IN
THAT PORTION NOW CODIFIED AS 18 U.S.C. 3146(A)(3).  THEY NOTE THAT S.
2840, 88TH CONG., 2D SESS., CONTAINED A 1% RETENTION PROVISION "TO
DEFRAY BAIL BOND COSTS" BUT THAT A PARALLEL BILL, S. 1357, 89TH CONG.,
1ST SESS., AS IT PROGRESSED THROUGH CONGRESS, AT NO TIME HAD A
PROVISION OF THAT KIND.  IT WAS S. 1357 THAT WAS ENACTED AS PUB. L. 89
465. 

THE COMMITTEE REPORTS, S. REP. NO. 750, 89TH CONG., 1ST SESS., AND
H. R. REP. NO. 1541, 89TH CONG., 2D SESS., ACCOMPANYING THE 1966 ACT,
AND THE DEBATES, 112 CONG.REC.  12488-12504, 12841-12843, MAKE NO
REFERENCE TO THIS CHANGE FROM THE EARLIER S. 2840.  IN THE FACE OF THIS
SILENCE, AND WITHOUT MORE, AND BEING COGNIZANT OF THE FACT THAT THE
FEDERAL ACT, UNLIKE THE ILLINOIS ONE, WAS NOT DIRECTED AGAINST THE
PROFESSIONAL BAIL BONDSMAN, WE ARE NOT INCLINED TO READ CONSTITUTIONAL
IMPLICATIONS INTO THE ABSENCE OF THE RETENTION PROVISION IN THE BAIL
REFORM ACT OF 1966. 

NEITHER ARE WE INCLINED TO READ CONSTITUTIONAL IMPLICATIONS INTO
EITHER THE PRESENCE OR THE ABSENCE OF A RETENTION PROVISION IN
CORRESPONDING STATUTES OF STATES OTHER THAN ILLINOIS.  SEE N. Y. LAWS
1936, C. 518, N.Y. CODE CRIM. PROC. SEC. 586-3 (SUPP. 1970-1971),
HAVING A 2% FEE PROVISION, NOW REPLACED BY SECS. 520.10-520.30 OF NEW
YORK'S NEW CRIMINAL PROCEDURE LAW, EFFECTIVE SEPTEMBER 1, 1971, WITHOUT
THE PROVISION.  SEE WIS. STAT. SECS. 969.02(5) AND 969.03(1)(C) (1969),
WHERE A 1% FEE IS SPECIFIED BUT NOT UPON DISMISSAL OR ACQUITTAL.  SEE
ALASKA STAT. SEC. 12.30.020(B)(4) (SUPP. 1971); D.C. CODE ANN. SEC. 23
1321(A)(3) (SUPP. 1971); AND IOWA CODE ANN. SEC. 763.16.1C.  (SUPP. 
1971), IN EACH OF WHICH A 10% DEPOSIT IS AUTHORIZED WITH NO FEE
RETENTION PROVISION. 

        VI 

WE REFRAIN FROM NULLIFYING THIS ILLINOIS STATUTE THAT, WITH ITS
COMPANION SECTIONS, HAS BROUGHT REFORM AND NEEDED RELIEF TO THE STATE'S
BAIL SYSTEM.  THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS IS

    AFFIRMED. 

/1/  SCHILB ALSO ATTACKED THE STATUTE AS VIOLATIVE OF ART. II, SECS.
2 AND 19, OF THE ILLINOIS CONSTITUTION OF 1870 (NOW ART. I, SECS. 2 AND
12, OF THE STATE'S 1970 CONSTITUTION). 

/2/  SEE D. FREED & P. WALD, BAIL IN THE UNITED STATES:  1964, PP.
34-35 (1964); R. GOLDFARB, RANSOM 92-126 (1965); BOWMAN, THE ILLINOIS
TEN PER CENT BAIL DEPOSIT PROVISION, 1965 U.ILL.L.F. 35. 

/3/  "SEC.  110-2.  RELEASE ON OWN RECOGNIZANCE 

"WHEN FROM ALL THE CIRCUMSTANCES THE COURT IS OF THE OPINION THAT
THE ACCUSED WILL APPEAR AS REQUIRED EITHER BEFORE OR AFTER CONVICTION
THE ACCUSED MAY BE RELEASED ON HIS OWN RECOGNIZANCE . . .

"THIS SECTION SHALL BE LIBERALLY CONSTRUED TO EFFECTUATE THE PURPOSE
OF RELYING UPON CRIMINAL SANCTIONS INSTEAD OF FINANCIAL LOSS TO ASSURE
THE APPEARANCE OF THE ACCUSED." 

/4/  "SEC.  110-7.  DEPOSIT OF BAIL SECURITY 

"(A) THE PERSON FOR WHOM BAIL HAS BEEN SET SHALL EXECUTE THE BAIL
BOND AND DEPOSIT WITH THE CLERK OF THE COURT BEFORE WHICH THE
PROCEEDING IS PENDING A SUM OF MONEY EQUAL TO 10% OF THE BAIL, BUT IN
NO EVENT SHALL SUCH DEPOSIT BE LESS THAN $25. 

     *          *          *          * 

"(F) WHEN THE CONDITIONS OF THE BAIL BOND HAVE BEEN PERFORMED AND
THE ACCUSED HAS BEEN DISCHARGED FROM ALL OBLIGATIONS IN THE CAUSE THE
CLERK OF THE COURT SHALL RETURN TO THE ACCUSED 90% OF THE SUM WHICH HAD
BEEN DEPOSITED AND SHALL RETAIN AS BAIL BOND COSTS 10% OF THE AMOUNT
DEPOSITED." 

SEPT. 4, 1969, BY PUB. ACT 76-1394, APPROVED SEPT. 19, 1969, AND BY
PUB. ACT 76-1801, APPROVED OCT. 9, 1969.  IT WAS FURTHER AMENDED IN
1970 BY PUB. ACT 76-2078, APPROVED JUNE 22, 1970, AND NOW READS: 

"(F) WHEN THE CONDITIONS OF THE BAIL BOND HAVE BEEN PERFORMED AND
THE ACCUSED HAS BEEN DISCHARGED FROM ALL OBLIGATIONS IN THE CAUSE THE
CLERK OF THE COURT SHALL RETURN TO THE ACCUSED, UNLESS THE COURT ORDERS
OTHERWISE, 90% OF THE SUM WHICH HAD BEEN DEPOSITED AND SHALL RETAIN AS
BAIL BOND COSTS 10% OF THE AMOUNT DEPOSITED.  HOWEVER, IN NO EVENT
SHALL THE AMOUNT RETAINED BY THE CLERK AS BAIL BOND COSTS BE LESS THAN
$5. 

"AT THE REQUEST OF THE DEFENDANT THE COURT MAY ORDER SUCH 90% OF
DEFENDANT'S BAIL DEPOSIT, OR WHATEVER AMOUNT REPAYABLE TO DEFENDANT
FROM SUCH DEPOSIT, TO BE PAID TO DEFENDANT'S ATTORNEY OF RECORD." 

/5/  "SEC.  110-8.  CASH, STOCKS, BONDS AND REAL ESTATE AS SECURITY
FOR BAIL 

"(A) IN LIEU OF THE BAIL DEPOSIT PROVIDED FOR IN SECTION 110-7 OF
THIS CODE ANY PERSON FOR WHOM BAIL HAS BEEN SET MAY EXECUTE THE BAIL
BOND WITH OR WITHOUT SURETIES WHICH BOND MAY BE SECURED: 

"(1) BY A DEPOSIT, WITH THE CLERK OF THE COURT, OF AN AMOUNT EQUAL
TO THE REQUIRED BAIL, OF CASH, OR STOCKS AND BONDS IN WHICH TRUSTEES
ARE AUTHORIZED TO INVEST TRUST FUNDS UNDER THE LAWS OF THIS STATE; OR 

"(2) BY REAL ESTATE SITUATED IN THIS STATE WITH UNEMCUMBERED EQUITY
NOT EXEMPT OWNED BY THE ACCUSED OR SURETIES WORTH DOUBLE THE AMOUNT OF
BAIL SET IN THE BOND. 

        *          *          *          *  * 

"(F) WHEN THE CONDITIONS OF THE BAIL BOND HAVE BEEN PERFORMED AND
THE ACCUSED HAS BEEN DISCHARGED FROM HIS OBLIGATIONS IN THE CAUSE, THE
CLERK OF THE COURT SHALL RETURN TO HIM OR HIS SURETIES THE DEPOSIT OF
ANY CASH, STOCKS OR BONDS.  IF THE BAIL BOND HAS BEEN SECURED BY REAL
ESTATE THE CLERK OF THE COURT SHALL FORTHWITH NOTIFY IN WRITING THE
REGISTRAR OF TITLES OR RECORDER OF DEEDS AND THE LIEN OF THE BAIL BOND
ON THE REAL ESTATE SHALL BE DISCHARGED." 

/6/  SEC. 110-5.  DETERMINING THE AMOUNT OF BAIL 

"(A) THE AMOUNT OF BAIL SHALL BE: 

"(1) SUFFICIENT TO ASSURE COMPLIANCE WITH THE CONDITIONS SET FORTH
IN THE BAIL BOND; 

"(2) NOT OPPRESSIVE; 

"(3) COMMENSURATE WITH THE NATURE OF THE OFFENSE CHARGED; 

"(4) CONSIDERATE OF THE PAST CRIMINAL ACTS AND CONDUCT OF THE
DEFENDANT; 

"(5) CONSIDERATE OF THE FINANCIAL ABILITY OF THE ACCUSED." 

/7/  SEC. 110-6.  REDUCTION OR INCREASE OF BAIL 

"(A) UPON APPLICATION BY THE STATE OR THE DEFENDANT THE COURT BEFORE
WHICH THE PROCEEDING IS PENDING MAY INCREASE OR REDUCE THE AMOUNT OF
BAIL OR MAY ALTER THE CONDITIONS OF THE BAIL BOND." 

/8/  " . . . THE PROVISIONS OF SECTIONS 110-7 AND 110-8 WERE
DESIGNED TO SEVERELY RESTRICT THE ACTIVITIES OF PROFESSIONAL BAIL
BONDSMEN AND TO REDUCE THE COST OF LIBERTY TO ARRESTED PERSONS AWAITING
TRIAL . . . "  P. 298. 

"THE COMMITTEE REALIZED FULL WELL THE MANY ARGUMENTS ADVANCED IN
OPPOSITION TO CHANGING THE PRESENT SYSTEM.  WE WERE NOT IMPRESSED WITH
ANY OF THEM.  IF A PERSON CAN PAY A PROFESSIONAL BONDSMAN TEN PER CENT
OF THE BAIL AMOUNT AS A FEE, HE CAN DEPOSIT IT WITH THE CLERK.  AT THE
PRESENT TIME HE RECEIVES NOTHING BACK FROM THE BONDSMAN IF HE APPEARS
FOR TRIAL; HIS TEN PER CENT FEE IS GONE.  UNDER THE PROVISIONS OF (SEC.
110-7(F)) HE GETS BACK NINETY PER CENT OF THE AMOUNT DEPOSITED IF HE
APPEARS.  THE TEN PER CENT OF THE DEPOSIT RETAINED BY THE COUNTY WILL
OFFSET IN MONETARY AMOUNT THE COSTS OF HANDLING BAIL BONDS (WHICH MUST
BE DONE NOW ANYWAY), AND ANY LOSS RESULTING FROM THE OCCASIONAL BAIL
JUMPER WHERE THE PROFESSIONAL BONDSMAN MIGHT NOW FORFEIT THE AMOUNT OF
THE BAIL . . . "  P. 300. 

"THIS SECTION (SEC. 110-7) IS NEW AND PROVIDES THE PROCEDURE FOR
DEPOSITING TEN PER CENT OF THE AMOUNT OF BAIL AS SECURITY FOR
APPEARANCE.  HOWEVER, THE BAIL BOND WILL PROVIDE FOR FORFEITURE OF THE
FULL AMOUNT OF THE BAIL UPON NON-APPEARANCE.  IN ADDITION, THE ACCUSED
WOULD BE SUBJECT TO THE PENAL PROVISIONS FOR BAIL JUMPING.  HOWEVER,
SUBSECTION (F) PROVIDES FOR A RETURN OF NINETY PER CENT OF THE BAIL
DEPOSIT (WHICH AMOUNTS TO (RETENTION OF) ONE PER CENT OF THE AMOUNT OF
BAIL SET BY THE COURT IN THE FIRST INSTANCE) TO THE ACCUSED UPON
COMPLIANCE WITH THE CONDITIONS OF THE BAIL BOND.  THE TEN PER CENT OF
THE DEPOSIT RETAINED BY THE CLERK IS TO COVER COSTS OF HANDLING BAIL
BONDS AND DEPOSITS."  P. 316. 

"THERE IS NOTHING IN ARTICLE 110 WHICH IS INTENDED TO WORK ANY
ADDITIONAL HARDSHIP ON ANYONE IN THE GIVING OF BAIL.  IT IS DESIGNED TO
PERMIT THE CONTINUATION OF PRESENT PRACTICES IN REGARD TO SHERIFFS,
POLICE OFFICERS, ETC., TAKING CASH OR DRIVERS' LICENSES, AND TO
SIMPLIFY THE PROCEDURES IN ALL OTHER CASES SO AS TO LESSEN THE ULTIMATE
COST OF BAIL TO OFFENDERS (BY THOUSANDS OF DOLLARS EACH YEAR) WHO
APPEAR FOR TRIAL ANYWAY, AND TO ASSURE TO THE COUNTIES IN EVERY CASE A
REASONABLE AMOUNT (ONE PER CENT OF THE TOTAL AMOUNT OF BAIL SET) TO
COVER THE COST OF TIME AND PAPER-WORK INVOLVED IN HANDLING BAIL
CASES."  P. 324. 

/9/  SCHILB HAS NEITHER ALLEGED NOR SHOWN THAT HE IS INDIGENT OR
THAT HE APPLIED FOR AND WAS DENIED RELEASE ON HIS PERSONAL
RECOGNIZANCE.  NO QUESTION OF STANDING, HOWEVER, WAS RAISED IN THE
ILLINOIS COURTS OR HERE.  THE ILLINOIS SUPREME COURT FOUND IT
UNNECESSARY TO PASS UPON THE PROPRIETY OF THE CLASS ACTION.  46
ILL.2D,AT 552, 264 N.E.2D,AT 384. 

/10/  "QUESTION:  MR. O'TOOLE (COUNSEL FOR APPELLANTS), (IF) YOU
PREVAIL HERE, DO YOU ANTICIPATE THE OLD BONDSMAN SYSTEM WILL BE
REVISED? 

"MR. O'TOOLE:  OH NO, YOUR HONOR . . . THAT IS THE FURTHEST THING--
WE WANT TO MAKE THAT EMINENTLY CLEAR.  WE BELIEVE THIS TO BE VERY GOOD
LEGISLATION.  WE FEEL THIS ASPECT OF IT IS WRONG.  DEFINITELY NOT,
THERE WOULD NOT BE ANY REINCARNATION OF THE BONDSMAN."  TR. OF ORAL
ARG. 11. 

/11/  TR. OF ORAL ARG. 27. 

/12/  "THUS, THOSE LEAST ABLE TO AFFORD IT, THE POOR AND NON
AFFLUENT, WHO HAVE NO CHOICE BUT TO REMAIN IN JAIL OR DEPOSIT 10% OF
BAIL, ARE UNCONSTITUTIONALLY 'PENALIZED IN A QUEST FOR JUSTICE DUE TO A
LACK OF WEALTH.'"  BRIEF FOR APPELLANTS 16. 

/13/  BRIEF FOR APPELLANTS 16. 

MR. JUSTICE MARSHALL, CONCURRING. 

I JOIN THE OPINION OF THE COURT WITH A FEW ADDITIONAL WORDS. 

ALL AGREE THAT THE CENTRAL PURPOSE OF THE STATUTE WAS TO RESTRICT
SEVERELY THE ACTIVITIES OF PROFESSIONAL BAIL BONDSMEN WHO HAD
CUSTOMARILY COLLECTED 10% OF THE AMOUNT OF EACH BOND AS A FEE AND
RETAINED ALL OF IT REGARDLESS OF WHAT HAPPENED.  ALL AGREE THAT THE NEW
SCHEME IS, IN GENERAL, AN ADMIRABLE ATTEMPT TO REDUCE THE COST OF
LIBERTY FOR THOSE AWAITING TRIAL.     THE NEW SCHEME DEALT ONLY WITH
THE CLASS OF WHICH APPELLANT SCHILB WAS A MEMBER-- THOSE PERSONS
CHARGED WITH CRIMES WHO UNDER THE OLD SYSTEM WERE RELEGATED TO
PROFESSIONAL BONDSMEN WHO ALONG WITH OTHER REQUIREMENTS CHARGED A 10%
FEE FOR THE BOND REGARDLESS OF THE OUTCOME OF THE CASE.  THIS IS THE
ONLY CLASS AFFECTED BY THE NEW SCHEME.  MEMBERS OF THIS CLASS NOW PAY
1% INSTEAD OF 10%.  IN THE EVOLVING STRUGGLE FOR MEANINGFUL BAIL REFORM
I CANNOT FIND THE PRESENT ILLINOIS MOVE TOWARD THAT OBJECTIVE TO BE
UNCONSTITUTIONAL. 

MR. JUSTICE DOUGLAS, DISSENTING.     APPELLANT JOHN SCHILB BROUGHT
THIS CLASS ACTION ON BEHALF OF ALL CRIMINAL DEFENDANTS AGAINST WHOM THE
CLERK OF THE CIRCUIT COURT OF ST. CLAIR COUNTY, ILLINOIS, HAD ASSESSED
FEES OF 10% OF THE AMOUNTS DEPOSITED AS BAIL BONDS.  AT ISSUE WAS ILL.
ANN. STAT., C. 38, SEC. 100-7(A) (1970), WHICH ALLOWED A DEFENDANT TO
BE RELEASED FROM CUSTODY UPON "DEPOSIT WITH THE CLERK OF THE COURT . .
. A SUM OF MONEY EQUAL TO 10% OF THE BAIL" WHICH HAD BEEN SET BY THE
COURT.  APPELLANT CHALLENGED, UNDER THE EQUAL PROTECTION AND DUE
PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT, THE PROVISION THAT "THE
CLERK OF THE COURT . . . RETAIN AS BAIL BOND COSTS 10% OF THE AMOUNT
(SO) DEPOSITED."  ID., AT 110-7(F).  HE ARGUED THAT THIS WAS AN
UNCONSTITUTIONAL DISCRIMINATION BECAUSE BAIL BOND COSTS WERE NOT
IMPOSED UPON THOSE WHO WERE RELEASED ON THEIR PERSONAL RECOGNIZANCE,
ID., AT SEC. 110-2, OR THOSE WHO DEPOSITED CASH OR OTHER SECURITY IN
THE FULL AMOUNT OF THE BAIL BOND.  ID., AT SEC. 110-8. 

THE CIRCUIT COURT FOUND THE STATUTE CONSTITUTIONAL AND DISMISSED THE
COMPLAINT.  THE SUPREME COURT OF ILLINOIS AFFIRMED THE JUDGMENT, 46
ILL.2D 538, 264 N.E.2D 377; WE NOTED PROBABLE JURISDICTION, 402 U.S.
928. 

THE COMMERCIAL BAIL BONDSMAN HAS LONG BEEN AN ANATHEMA TO THE
CRIMINAL DEFENDANT SEEKING TO EXERCISE HIS RIGHT TO PRETRIAL RELEASE. 
IN THEORY, COURTS WERE TO SET SUCH AMOUNTS AND CONDITIONS OF BONDS AS
WERE NECESSARY TO SECURE THE APPEARANCE OF DEFENDANTS AT TRIAL.  /1/
CF. STACK V. BOYLE, 342 U.S. 1 (1951).  THOSE WHO DID NOT HAVE THE
RESOURCES TO POST THEIR OWN BOND WERE AT THE MERCY OF THE BONDSMAN WHO
COULD EXACT EXORBITANT FEES AND UNCONSCIONABLE CONDITIONS FOR ACTING AS
SURETY.  /2/ SEE A. BEELEY, THE BAIL SYSTEM IN CHICAGO 39 (1927); D.
FREED & P. WALD, BAIL IN THE UNITED STATES:  1964, P. 34 (1964); R.
GOLDFARB, RANSOM 92-126 (1965); ARES & STURZ, BAIL AND THE INDIGENT
ACCUSED, 8 CRIME & DELINQUENCY 12 (1962(; BOYLE, BAIL UNDER THE
JUDICIAL ARTICLE, 17 DE PAUL L.REV.  267, 272 (1968); NOTE, 106
U.PA.L.REV.  693 (1958); NOTE, 102 U.PA.L.REV.  1031 (1954).  CRIMINAL
DEFENDANTS OFTEN PAID MORE IN FEES TO BONDSMEN FOR SECURING THEIR
RELEASE THEN THEY WERE LATER TO PAY IN PENALTIES FOR THEIR CRIMES. 
BOWMAN, THE ILLINOIS TEN PER CENT BAIL DEPOSIT PROVISION, 1965
U.ILL.L.F. 35, 36. 

MOREOVER, THE COMMERCIAL BOND SYSTEM FAILED TO PROVIDE AN INCENTIVE
TO THE DEFENDANT TO COMPLY WITH THE TERMS OF HIS BOND.  WHETHER OR NOT
HE APPEARED AT TRIAL, THE DEFENDANT WAS UNABLE TO RECOVER THE FEE HE
HAD PAID TO THE BONDSMAN.  "NO REFUND IS OR WAS MADE BY THE
PROFESSIONAL SURETY TO A DEFENDANT FOR HIS ROUTINE COMPLIANCE WITH THE
CONDITIONS OF HIS BOND."  KAMIN, BAIL ADMINISTRATION IN ILLINOIS, 53
ILL.B.J. 674, 678 (1965). 

IT WAS IN RESPONSE TO THE ABUSES AND INEQUITIES OF THE COMMERCIAL
BONDING SYSTEM THAT ILLINOIS ENACTED THE STATUTORY SCHEME NOW UNDER
ATTACK.  /3/  THE SUPREME COURT OF ILLINOIS INDICATED "THAT THE CENTRAL
PURPOSE OF THE LEGISLATURE . . . WAS TO SEVERELY RESTRICT THE
ACTIVITIES OF PROFESSIONAL BAIL BONDSMEN WHO CUSTOMARILY COLLECTED 10%
OF THE AMOUNT OF A BOND AS A FEE WHICH MUST WAS RETAINED WHETHER OR NOT
THE CONDITIONS OF THE BOND WERE MET BY THE ACCUSED."  46 ILL.2D,AT 544,
164 N.E.2D,AT 380.  TO ACCOMPLISH THIS END, IT WAS ONLY NECESSARY TO
DEAL WITH THE CLASS REPRESENTED BY APPELLANT.  THOSE DEFENDANTS WHO
POSTED SECURITY IN THE FULL AMOUNT OF THE BAIL BOND OR WHO WERE FREE ON
THEIR OWN RECOGNIZANCE STOOD IN THE SAME FINANCIAL POSITION UNDER THE
NEW STATUTORY SCHEME AS UNDER THE OLD.  NO COSTS HAVE EVER BEEN IMPOSED
UPON THEM AND ANY SECURITY DEPOSITED HAS ALWAYS BEEN RETURNED UPON THE
SATISFACTION OF THE TERMS OF THE BOND. 

THOSE DEFENDANTS WHO UNDER THE OLD SYSTEM HAD UTILIZED THE SERVICES
OF THE PROFESSIONAL BONDSMAN ARE NOW REQUIRED TO POST WITH THE CLERK OF
THE COURT 10% OF THE FACE AMOUNT OF THEIR BONDS IN ORDER TO WIN THEIR
RELEASE.  THE SIGNIFICANT DIFFERENCE, HOWEVER, IS THAT UPON
SATISFACTION OF THE TERMS OF THEIR BONDS, SEC. 110-7 NOW ALLOWS THEM TO
RECOVER 90% OF THE AMOUNT DEPOSITED, WHILE NO SUCH RECOVERY WAS EVER
HAD FROM THE COMMERCIAL BONDSMAN.  RATHER THAN PAYING A FEE OF 10% OF
THE FACE AMOUNT OF THE BOND, THEREFORE, THE COST IS NOW ONLY 1%. 

APPELLANT URGES THAT THE NEW SYSTEM OF PRETRIAL RELEASE IS
CONSTITUTIONALLY DEFICIENT DESPITE THE IMPROVEMENT IT HAS WROUGHT. 
APPELLANT FIRST ARGUES THAT SEC. 110-7 IMPOSES COSTS UPON ONLY ONE
CLASS OF CRIMINAL DEFENDANTS WITHOUT ANY RATIONAL BASIS FOR THE
CLASSIFICATION.  NEXT HE ASSERTS THAT THE POOR AND NONAFFLUENT, WHO
HAVE NO CHOICE BUT TO REMAIN IN JAIL OR DEPOSIT 10% OF BAIL, ARE
UNCONSTITUTIONALLY PENALIZED DUE TO LACK OF WEALTH.  FINALLY, HE SAYS
THAT SEC. 110-7 VIOLATES THE DUE PROCESS CLAUSE INSOFAR AS IT ALLOWS
COSTS TO BE TAXED AGAINST AN ACCUSED WHO IS ULTIMATELY FOUND INNOCENT. 

IN RESPONSE, APPELLEES ASSERT THAT THE CLASSIFICATION IMPLEMENTS THE
LAUDABLE PURPOSE OF ELIMINATING THE COMMERCIAL BAIL BONDSMAN.  UNDER
THIS VIEW, THE 1% FEE IS NO MORE THAN THE INTEREST CHARGED FOR ALLOWING
AN ACCUSED HIS FREEDOM UPON PAYMENT OF ONLY 10% OF THE AMOUNT SET AS
BAIL.  APPELLEES URGE THAT A SYSTEM WHICH REQUIRES LIBERAL USE OF AN
ACCUSED'S RELEASE ON HIS OWN RECOGNIZANCE, ILL. ANN. STAT., C. 38, SEC.
110-2 (1970), AND WHICH REDUCES TO A FRACTION OF THE PREVIOUS COST THE
FINANCIAL BURDEN ON THOSE REQUIRED TO POST CASH BONDS, ACTUALLY
BENEFITS THE INDIGENT.  /4/ 

I DO NOT REACH THE QUESTION OF EQUAL PROTECTION BUT REST MY DECISION
ON THE ISSUE STIRRED, BUT NOT DECIDED, IN GIACCIO V. PENNSYLVANIA, 382
U.S. 399.  THE PLAINTIFF IN THIS ACTION, JOHN SCHILB, WAS CHARGED (1)
WITH LEAVING THE SCENE OF AN AUTOMOBILE ACCIDENT AND (2) OBSTRUCTING
TRAFFIC.  HE POSTED A 10% ON EACH CHARGE-- ONE FOR $50 AND ONE FOR $25;
HE WAS ACQUITTED ON THE FIRST ONE AND WAS CHARGED $7.50 ON THE TWO
BONDS. 

THE 1% CHARGE IS A PART OF THE COST OF A CRIMINAL PROSECUTION,
IMPOSED EVEN ON AN INNOCENT PERSON WHO IS ACCUSED OF A CRIME AND WHO IS
PUT TO THE EXPENSE AND ANGUISH OF A TRIAL.  GIACCIO INVOLVED A STATE
STATUTE WHICH DIRECTED JURIES "IN ALL CASES OF ACQUITTALS" TO DETERMINE
WHETHER THE GOVERNMENT OR THE DEFENDANT SHOULD PAY THE COSTS.  382
U.S.,AT 400-401.  WE HELD THE ACT UNCONSTITUTIONAL ON GROUNDS OF
VAGUENESS.  MR. JUSTICE STEWART, CONCURRING, SAID:  "IN THE PRESENT
CASE IT IS ENOUGH FOR ME THAT PENNSYLVANIA ALLOWS A JURY TO PUNISH A
DEFENDANT AFTER FINDING HIM NOT GUILTY.  THAT, I THINK, VIOLATES THE
MOST RUDIMENTARY CONCEPT OF DUE PROCESS OF LAW."  382 U.S.,AT 405. 

MR. JUSTICE FORTAS ALSO CONCURRED, SAYING:  "IN MY OPINION, THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT PERMIT A STATE TO
IMPOSE A PENALTY OR COSTS UPON A DEFENDANT WHOM THE JURY HAS FOUND NOT
GUILTY OF ANY OFFENSE WITH WHICH HE HAS BEEN CHARGED."  IBID.  THAT IS
MY VIEW ON THE MERITS IN THE INSTANT CASE. 

SOME COSTS ARE THE UNAVOIDABLE CONSEQUENCES OF A SYSTEM OF
GOVERNMENT WHICH IS REQUIRED TO PROCEED AGAINST ITS CITIZENS IN A
PUBLIC TRIAL IN AN ADVERSARY PROCEEDING.  YET I SEE NO BASIS FOR SAYING
THAT AN ACCUSED MUST BEAR THE COSTS INCURRED BY THE GOVERNMENT IN ITS
UNSUCCESSFUL PROSECUTION OF HIM.  IMPOSITION OF COSTS UPON INDIVIDUALS
WHO HAVE BEEN ACQUITTED HAS LONG BEEN ESCHEWED BY OUR COURTS.  E.G.,
STATE V. BROOKS, 33 KAN. 708, 715, 7 P. 591, 596 (1885); BIESTER V.
STATE, 65 NEB. 276, 91 N.W. 416 (1902); CHILDERS V. COMMONWEALTH, 171
VA. 456, 198 S.E. 487 (1938).  SOME JURISDICTIONS HAVE PROVIDED THAT
THE IMPOSITION OF COSTS UPON ACQUITTED INDIVIDUALS IS REPREHENSIBLE. 
SEE, E.G., COSTS IN CRIMINAL CASES ACT, 15 & 16 GEO. 6 & 1 ELIZ.  2, C.
48 (1952); REPORT OF THE ATTORNEY GENERAL'S COMMITTEE ON POVERTY AND
THE ADMINISTRATION OF CRIMINAL JUSTICE 31-32 (1963); GOLDBERG, EQUALITY
AND GOVERNMENTAL ACTION, 39 N.Y.U.L.REV.  205, 223-224 (1964); NOTE,
1962 WASH. U.L.Q. 76.  WHERE THERE IS SUCH UNIFORM CONDEMNATION OF A
PRACTICE AS ONEROUS AS THE IMPOSITION OF COSTS UPON ACQUITTED
DEFENDANTS, CF. LELAND V. OREGON, 343 U.S. 790, 798 (1952), I WOULD
CONCLUDE, WITH JUSTICES STEWART AND FORTAS IN GIACCIO, THAT IT VIOLATES
DUE PROCESS. 

IT IS, HOWEVER, SAID THAT THE 1% CHARGE IS NOT "A VEHICLE FOR THE
IMPOSITION OF COSTS OF PROSECUTION" AND THAT IT IS MERELY "AN
ADMINISTRATIVE COST IMPOSED UPON ALL THOSE, GUILTY AND INNOCENT ALIKE,
WHO SEEK THE BENEFIT OF SEC. 110-7."  ANTE, AT 370-371.  THE COSTS OF
ADMINISTERING THE BAIL SYSTEM OCCUR, BY DEFINITION, ONLY DURING THE
COURSE OF CRIMINAL PROSECUTIONS.  THEY ARE AS MUCH AN ELEMENT OF THE
COSTS OF CONDUCTING CRIMINAL CASES AS THE PROSECUTOR'S SALARY, THE FEE
FOR DOCKETING AN APPEAL, OR THE PER DIEM PAID TO JURORS.  NOR DOES THE
RUBRIC "ADMINISTRATIVE" REQUIRE A CONTRARY RESULT.  IF THIS WERE THE
TALISMAN THROUGH WHICH A STATE COULD IMPOSE ITS COSTS UPON ACQUITTED
DEFENDANTS, I COULD SEE NO STOPPING POINT AND WE MIGHT BE LEFT WITH A
SYSTEM IN WHICH AN ACQUITTAL MIGHT BE NEARLY AS RUINOUS TO THE
DEFENDANT AS A CONVICTION. 

ON THE OTHER ASPECTS OF THE CASE FACTS ARE ABSENT WHICH WE WOULD
NEED TO KNOW IF WE ARE TO MAKE AN INFORMED JUDGMENT ON THE REQUIREMENTS
OF EQUAL PROTECTION.  THE DISCRIMINATION CONDEMNED IS AN "INVIDIOUS"
ONE, IT BEING RECOGNIZED OVER AND AGAIN THAT "LEGISLATION MAY IMPOSE
SPECIAL BURDENS UPON DEFINED CLASSES IN ORDER TO ACHIEVE PERMISSIBLE
ENDS."  RINALDI V. YEAGER, 384 U.S. 305, 309.  THE ELIMINATION OF THE
PROFESSIONAL BONDSMAN SEEMS TO ME TO BE A PERMISSIVE END.  THE
PROVISION FOR THE 10% BOND IS, IN THAT VIEW, AN AMELIORATING ONE.  THE
PROBLEM ON WHICH THIS RECORD LEAVES US IN THE DARK IS THE ACTUAL
WORKING OF THAT PROVISION AND THE PROVISION FOR RELEASE ON PERSONAL
RECOGNIZANCE.  NOT EVERYONE, I ASSUME, IS ENTITLED TO PRETRIAL
RELEASE.  EQUAL PROTECTION WOULD SEEM TO REQUIRE THAT EACH, WHETHER
RICH OR POOR, BLACK OR WHITE, IS ENTITLED TO RELEASE ON PERSONAL
RECOGNIZANCE IF HE MEETS THE REQUIREMENTS OF STABILITY, REPUTATION,
COMMUNITY TIES, AND SO ON.  IN ILLINOIS THE RECORD IS SILENT /5/  AS TO
HOW THE SYSTEM OF RELEASE ON PERSONAL RECOGNIZANCE, AS CONTRASTED TO
RELEASE ON THE 10% BOND, IS IN FACT ADMINISTERED.  THE MANNER OF
ADMINISTRATION MAY, OF COURSE, RAISE SERIOUS EQUAL PROTECTION
QUESTIONS.  FOR A STATUTE FAIR ON ITS FACE MAY BE ADMINISTERED IN AN
INVIDIOUS WAY.  AS STATED IN YICK WO V. HOPKINS, 118 U.S. 356, 373
374: 

"THOUGH THE LAW ITSELF BE FAIR ON ITS FACE AND IMPARTIAL IN
APPEARANCE, YET, IF IT IS APPLIED AND ADMINISTERED BY PUBLIC AUTHORITY
WITH AN EVIL EYE AND AN UNEQUAL HAND, SO AS PRACTICALLY TO MAKE UNJUST
AND ILLEGAL DISCRIMINATIONS BETWEEN PERSONS IN SIMILAR CIRCUMSTANCES,
MATERIAL TO THEIR RIGHTS, THE DENIAL OF EQUAL JUSTICE IS STILL WITHIN
THE PROHIBITION OF THE CONSTITUTION." 

BUT, AS I HAVE SAID, THE RECORD CONTAINS NO FACTUAL BASIS SHOWING
THE MANNER OF ADMINISTRATION OF THE ILLINOIS SYSTEM. 

I WOULD REVERSE THIS JUDGMENT INSOFAR AS IT IMPOSED BAIL BOND COSTS
UNDER THE CRIMINAL CHARGES OF WHICH MEMBERS OF THE CLASS REPRESENTED BY
APPELLANT WERE ACQUITTED AND REMAND FOR FURTHER PROCEEDINGS RESPECTING
THE BAIL BOND COSTS ON THE CHARGES ON WHICH THEY WERE CONVICTED. 

/1/ A STUDY BY THE CHAMPAIGN COUNTY BAR ASSOCIATION INDICATED THAT
BAIL WAS OFTEN SET AT A HIGHER AMOUNT THAN NECESSARY TO SATISFY THESE
OBJECTIVES: 

"AMONG THE BAIL PRACTICES NOTED IN THIS REPORT WERE THE FOLLOWING:
(1) BONDS OF $2,000, $3,000, OR EVEN $5,000 ARE FIXED IN CASES WHERE
THE ACCUSED ULTIMATELY IS FINED $50 OR LESS.  (2) PERMITTING AN ACCUSED
TO SIGN HIS OWN BOND WITHOUT SURETIES IS RARELY ALLOWED.  (3) PERSONAL
BONDS OF LOCAL CITIZENS WHO OWN PROPERTY OR HAVE BEEN LOCAL RESIDENTS
FOR MANY YEARS ARE FREQUENTLY REFUSED.  (4) MAGISTRATES FREQUENTLY FIX
A BOND OF $1,000 OR SO FOR A MINOR CRIME, AND WHEN THE CASE IS
TRANSFERRED A FEW DAYS LATER TO THE COUNTY OR CIRCUIT COURT BY THE
FILING OF AN INFORMATION THE ACCUSED MUST PROVIDE A SECOND BOND FOR THE
SAME MINOR CRIME."  BOWMAN, THE ILLINOIS TEN PER CENT BAIL DEPOSIT
PROVISION, 1965 U.ILL.L.F. 35. 

/2/  IN 1962 IN COOK COUNTY, FOR EXAMPLE, PROFESSIONAL BAIL BONDSMEN
WROTE BONDS TOTALING $18,513,965 ENTITLING THEM TO RECEIVE $1,851,396
IN FEES.  THESE BONDSMEN, HOWEVER, PAID FORFEITURE JUDGMENTS OF ONLY
$183,938.  ID., AT 36. 

/3/  THE PRIMARY ARGUMENT ADVANCED IN FAVOR OF RETAINING THE
COMMERCIAL BOND SYSTEM WAS THAT THE PROFESSIONAL BONDSMAN WOULD, AT HIS
OWN EXPENSE, TRACK DOWN AND RECAPTURE A DEFENDANT WHO JUMPED BAIL. 
THIS ARGUMENT WAS FOUND BY THE ILLINOIS LEGISLATURE TO HAVE ONLY
TENUOUS FACTUAL SUPPORT: 

"AS TO THE VALUE OF BONDSMEN BEING RESPONSIBLE FOR THE APPEARANCE OF
ACCUSED AND TRACKING HIM DOWN AND RETURNING HIM AT THE BONDSMAN'S
EXPENSE-- THE FACTS DO NOT SUPPORT THIS AS AN IMPORTANT FACTOR.  WHILE
SUCH IS ACCOMPLISHED OCCASIONALLY WITHOUT EXPENSE TO THE COUNTY, THE
GREAT MAJORITY OF BAIL JUMPERS ARE APPREHENDED BY THE POLICE OF THIS
AND OTHER STATES.  SINCE BAIL JUMPING IS NOW A DISTINCT AND SEPARATE
CRIME, AND WITH THE NATION-WIDE EXCHANGE OF INFORMATION BETWEEN LAW
ENFORCEMENT AGENCIES AND THE F.B.I., THE AVERAGE BAIL JUMPER HAS LITTLE
CHANCE OF ESCAPE.  THE FACTS SHOW THAT MOST OF THEM ARE RECAPTURED IN
THIS STATE, AND EVEN IN THE SAME COUNTY WHERE THEY ARE TO APPEAR." 
COMMITTEE COMMENTS-- 1963, ILL. ANN. STAT., C. 38, P. 300 (SMITH-HURD
ED. 1970).     /4/  APPELLEES NOTE THAT A MAJOR PORTION OF THOSE
DEFENDANTS WHO AVAIL THEMSELVES OF THE 10% BAIL PROVISION ARE NOT
INDIGENT.  A WEALTHY ACCUSED WHO COULD AFFORD TO PAY EITHER 10% OR 100%
OF THE AMOUNT SET AS BAIL MIGHT WELL ELECT TO PAY ONLY 10% IF THE 1%
COST THEREBY IMPOSED WOULD BE LESS THAN THE INTEREST WHICH COULD BE
EARNED IF THE 90% WERE RETAINED AND INVESTED. 

/5/  THE MANHATTAN BAIL PROJECT WHICH HAS BEEN IN OPERATION SINCE
1961 DEALS ONLY WITH FELONY DEFENDANTS:     "IN EVALUATING WHETHER THE
DEFENDANT IS A GOOD PAROLE RISK, FOUR KEY FACTORS ARE CONSIDERED:  (1)
RESIDENTIAL STABILITY; (2) EMPLOYMENT HISTORY; (3) FAMILY CONTACTS IN
NEW YORK CITY; AND (4) PRIOR CRIMINAL RECORD.  EACH FACTOR IS WEIGHTED
IN POINTS.  IF THE DEFENDANT SCORES SUFFICIENT POINTS, AND CAN PROVIDE
AN ADDRESS AT WHICH HE CAN BE REACHED, VERIFICATION WILL BE ATTEMPTED. 
INVESTIGATION IS CONFINED TO REFERENCES CITED IN THE DEFENDANT'S SIGNED
STATEMENT OF CONSENT."  D. FREED & P. WALD, BAIL IN THE UNITED STATES:
1964, P. 59 (1964). 

FROM 1961 TO 1964 OUT OF 13,000 DEFENDANTS, 10,000 WERE INTERVIEWED,
4,000 WERE RECOMMENDED FOR RELEASE ON PERSONAL RECOGNIZANCE, AND 2,195
WERE PAROLED.  OF THESE, ONLY 15 FAILED TO SHOW UP IN COURT, A DEFAULT
RATE LESS THAN SEVEN-TENTHS OF ONE PERCENT. 

IF ILLINOIS' EXPERIENCE IS COMPARABLE, IT IS UNDERSTANDABLE WHY
THOSE WHO PASS MUSTER ON PERSONAL RECOGNIZANCE MAY BE TREATED MORE
LENIENTLY THAN THOSE WHO DO NOT QUALIFY FOR THAT KIND OF RELEASE.  IN
THAT CONNECTION 60% OF THOSE RELEASED ON PERSONAL RECOGNIZANCE IN
MANHATTAN WERE EITHER ACQUITTED OR HAD THEIR CASES DISMISSED, COMPARED
WITH 23% OF THE OTHERS.  ID., AT 63. 

IF THAT WERE THE EXPERIENCE OF ILLINOIS, THE STATE CERTAINLY COULD
NOT BE CHARGED WITH MAKING AN INVIDIOUS DISCRIMINATION AGAINST THE
OTHER GROUP, EVEN THOUGH THE COST OF ADMINISTERING THE PERSONAL
RECOGNIZANCE PROGRAM WAS AS HIGH AS THE COST OF ADMINISTERING THE BAIL
PROGRAM.  CF. RICHARDSON V. BELCHER, ANTE, P. 78; UNITED STATES V.
MARYLAND SAVINGS-SHARE INS. CORP., 400 U.S. 4 (1970); MCDONALD V. BOARD
OF ELECTION COMMISSIONERS, 394 U.S. 802 (1969); MCGOWAN V. MARYLAND,
366 U.S. 420 (1961); WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483
(1955); METROPOLIS THEATRE CO. V. CITY OF CHICAGO, 228 U.S. 61 (1913). 
COST OF ADMINISTRATION IS ONLY ONE ITEM FOR COMPARISON.  THE LESSENED
BURDEN ON THE STATE ACCRUING FROM THE FEW CONVICTIONS AND THE RESULTANT
JAIL TERM SENTENCES IS A FACTOR THAT A STATE MAY TAKE INTO
CONSIDERATION.  CERTAINLY IF THE ILLINOIS EXPERIENCE PARALLELS THE
MANHATTAN EXPERIENCE, WE WOULD BE HARD PUT TO SAY THAT ILLINOIS SHOWS
AN INVIDIOUS DISCRIMINATION AGAINST THOSE WHO CAN ONLY MAKE BAIL AS
COMPARED WITH THOSE WHO ARE QUALIFIED TO BE RELEASED ON PERSONAL
RECOGNIZANCE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

IN 1963, ILLINOIS ENACTED NEW PROVISIONS GOVERNING BAIL IN CRIMINAL
CASES.  ILL. REV. STAT., C. 38, ART. 110 (1963).  THESE ENACTMENTS
PROVIDE THAT A PERSON CHARGED WITH A CRIMINAL OFFENSE MAY OBTAIN
PRETRIAL RELEASE IN ONE OF FOUR WAYS. 

(1) THE ACCUSED MAY BE RELEASED ON HIS OWN RECOGNIZANCE.  PERSONS IN
THIS CLASS DO NOT PAY ANY COSTS TO COVER THE ADMINISTRATION OF THEIR
RELEASE.  SEC. 110-2. 

(2) THE ACCUSED MAY DEPOSIT 10% OF THE FULL AMOUNT OF THE BAIL THAT
HAS BEEN SET.  SEC. 110-7.  WHEN BAIL IS MADE IN THIS MANNER, THE CLERK
OF THE COURT ULTIMATELY RETAINS AS BAIL COSTS 1% OF THE FULL AMOUNT OF
BAIL (10% OF THE AMOUNT ACTUALLY DEPOSITED).  SEC. 110-7(F). 

(3) THE ACCUSED MAY OFFER CASH, STOCKS OR BONDS IN AN AMOUNT
EQUIVALENT TO THE REQUIRED BAIL.  NO ADMINISTRATIVE COSTS ARE IMPOSED. 
SEC. 110-8(A)(1). 

(4) THE ACCUSED MAY SECURE DOUBLE THE AMOUNT OF REQUIRED BAIL IN
UNENCUMBERED REAL ESTATE.  AGAIN, NO ADMINISTRATIVE COSTS ARE IMPOSED. 
SEC. 110-8(A)(2) AND (F). 

A PERSON MUST SATISFY A JUDGE THAT HE MEETS CERTAIN CRITERIA TO BE
ELIGIBLE FOR RELEASE ON HIS OWN RECOGNIZANCE.  OTHERWISE THE STATE
ALLOWS INDIVIDUALS TO CHOOSE FREELY AMONG THE THREE OTHER METHODS OF
OBTAINING PRETRIAL RELEASE (ASSUMING THE INDIVIDUAL HAS THE WHEREWITHAL
TO MAKE A CHOICE). 

THE 1963 BAIL PROVISIONS OF THE ILLINOIS CRIMINAL CODE REPRESENTED
SUBSTANTIAL REFORMS IN THE STATE'S PROCEDURES FOR GRANTING PRETRIAL
RELEASE.  THE CENTRAL PURPOSE OF THE LEGISLATION WAS TO RESTRICT
SEVERELY THE ACTIVITIES OF PROFESSIONAL BAIL BONDSMEN WHO HAD
CUSTOMARILY COLLECTED 10% OF THE AMOUNT OF A BOND AS A FEE, WHICH THEY
RETAINED WHETHER OR NOT THE CONDITIONS OF BOND WERE MET BY THE
ACCUSED.  /1/  BEFORE 1963, ACCUSED PERSONS WHO COULD NOT OBTAIN
RELEASE ON THEIR OWN RECOGNIZANCE HAD NO CHOICE BUT TO OFFER THE FULL
AMOUNT OF THE BAIL THAT WAS SET.  THE PRIMARY INNOVATION OF BAIL REFORM
WAS TO CREATE A CLASS OF "TEN-PERCENTERS," PERSONS WHO COULD GAIN
RELEASE BY DEPOSITING ONLY 10% OF THE REQUIRED BAIL. 

APPELLANT JOHN SCHILB WAS CHARGED WITH LEAVING THE SCENE OF AN
ACCIDENT AND OBSTRUCTING TRAFFIC.  BAIL WAS SET AT $500 FOR THE FIRST
OFFENSE AND $250 FOR THE SECOND.  AS A "TEN-PERCENTER," THE APPELLANT
POSTED $50 AND $25 BONDS.  HE WAS FOUND GUILTY OF THE SECOND CHARGE AND
NOT GUILTY OF THE FIRST.  AFTER THESE JUDGMENTS WERE ENTERED, THE STATE
RETAINED $5 AND $2.50 RESPECTIVELY, AS ADMINISTRATIVE COSTS ON HIS
BONDS.  SUBSEQUENTLY, THE APPELLANT BROUGHT THIS CLASS ACTION AGAINST
THE CLERK OF THE CIRCUIT COURT OF ST. CLAIR COUNTY, ILLINOIS, ALLEGING
THAT THE COST-RETENTION PROVISION OF THE STATE BAIL LAW, SEC. 110-7(F),
CONSTITUTES A VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT BECAUSE ADMINISTRATIVE COSTS ARE IMPOSED ONLY ON
THAT CLASS OF PERSONS WHO OBTAIN PRETRIAL RELEASE BY DEPOSITING 10% OF
THE REQUIRED BAIL.  THE ILLINOIS SUPREME COURT ULTIMATELY UPHELD THE
VALIDITY OF SEC. 110-7(F), WITH TWO JUSTICES DISSENTING.  46 ILL.2D
538, 264 N.E. 2D 377 (1970). 

IT IS COMMON GROUND THAT THE ILLINOIS BAIL REFORM SCHEME REFLECTS AN
ADMIRABLE ATTEMPT TO REDUCE THE COST OF LIBERTY FOR THOSE AWAITING
TRIAL.  CHAPTER 38, SEC. 110-7(F), DOES ARBITRARILY DISCRIMINATE,
HOWEVER, AGAINST THE APPELLANT AND THOSE SIMILARLY SITUATED.  /2/  AS
THIS COURT SAID IN RINALDI V. YEAGER, 384 U.S. 305: 

     "THE EQUAL PROTECTION CLAUSE REQUIRES MORE OF A STATE LAW THAN

NONDISCRIMINATORY APPLICATION WITHIN THE CLASS IT ESTABLISHES. 

  IT ALSO IMPOSES A REQUIREMENT OF SOME RATIONALITY IN THE NATURE

  OF THE CLASS SINGLED OUT . . . (LEGISLATION MAY IMPOSE SPECIAL

  BURDENS UPON DEFINED CLASSES IN ORDER TO ACHIEVE PERMISSIBLE

  ENDS.  BUT THE EQUAL PROTECTION CLAUSE DOES REQUIRE THAT, IN

  DEFINING A CLASS SUBJECT TO LEGISLATION, THE DISTINCTIONS THAT

  ARE DRAWN HAVE 'SOME RELEVANCE TO THE PURPOSE FOR WHICH THE

  CLASSIFICATION IS MADE.'"  ID., AT 308-309 (CITATIONS OMITTED). 

THE COURT ASSUMES THAT THE RATIONALITY OF SEC. 110-7(F)'S
CLASSIFICATION SHOULD BE ANALYZED IN RELATION TO THE PURPOSE OF ENDING
THE EVILS CREATED BY THE BAIL BOND SYSTEM.  HOWEVER, WHILE ENDING THOSE
EVILS IS THE AIM OF THE WHOLE BAIL REFORM, IT IS NOT THE AIM OF SEC.
110-7(F) ITSELF.  RATHER, THE APPELLEES HAVE ACKNOWLEDGED THAT THE
PURPOSE OF SEC. 110-7(F) IS TO COVER ADMINISTRATIVE COSTS; THEY HAVE
ALSO ACKNOWLEDGED IN ORAL ARGUMENT THAT THE FINANCIAL BURDEN ON THE
STATE IS PROBABLY AS GREAT OR GREATER FOR THOSE WHO USE THE OTHER
METHODS OF OBTAINING PRETRIAL RELEASE.  /3/  CAN THE APPELLEES
CONSTITUTIONALLY JUSTIFY THE SELECTIVE IMPOSITION OF ADMINISTRATIVE
COSTS"  /4/  I THINK NOT. 

THE ILLINOIS SUPREME COURT HELD THAT THERE CAN BE NO
UNCONSTITUTIONAL DISCRIMINATION IN THE STATE SYSTEM OF BAIL RELEASE,
SINCE EACH PERSON ACCUSED HAS A CHOICE OF METHOD FOR OBTAINING PRETRIAL
RELEASE.  46 ILL.2D,AT 548, 264 N.E. 2D,AT 382.  THOSE WHO DEPOSIT 10%,
SAID THE COURT, "ARE NOT AUTOMATICALLY PLACED IN THIS CLASS . . . BY
THE LAW.  THEY JOIN ONLY BY THE EXERCISE OF THEIR OWN VOLITION." 
WHETHER MANY PERSONS ACCUSED OF CRIMES CAN REALLY CHOOSE BETWEEN PAYING
10% OR PAYING THE FULL AMOUNT (OR SECURING DOUBLE THE AMOUNT IN REAL
ESTATE) IS HIGHLY DEBATABLE.  /5/  BUT HOWEVER THAT MAY BE, IT IS CLEAR
THAT NOT EVERY PERSON ACCUSED OF A CRIME IS FREE TO CHOOSE TO BE
RELEASED ON HIS OWN RECOGNIZANCE.  YET THOSE WHO ARE FORTUNATE ENOUGH
TO BE SO RELEASED NEED PAY NO COSTS WHATEVER. 

THE APPELLEES ARGUE THAT THOSE WHO PAY ONLY 10% ARE BEING GIVEN A
BENEFIT THAT JUSTIFIES IMPOSING A BURDEN.  THE APPELLEES SAY THAT SUCH
PERSONS ARE NOT REQUIRED TO PUT UP THE FULL AMOUNT OF THE BAIL SET AND
THAT THE 1% SUCH PERSONS DO ULTIMATELY PAY IS A BOON BY COMPARISON TO
THE 10% OF REQUIRED BAIL THAT THEY WOULD HAVE AUTOMATICALLY FORFEITED
TO THE BONDSMAN UNDER THE OLD PROCEDURES GOVERNING BAIL.  THIS
JUSTIFICATION, HOWEVER, ALSO FAILS TO DISTINGUISH BETWEEN THE "TEN
PERCENTERS" AND THOSE WHO ARE RELEASED ON THEIR OWN RECOGNIZANCE. 
OBVIOUSLY, THOSE RELEASED ON THEIR OWN RECOGNIZANCE RECEIVE AN EVEN
GREATER BENEFIT THAN THOSE TO DEPOSIT 10%, SINCE THEY GIVE NO MONEY TO
THE STATE AT ANY TIME IF THEY MEET THE CONDITIONS OF RELEASE.  /6/ 

THE APPELLEES ATTEMPT TO DISTINGUISH BETWEEN THOSE RELEASED ON THEIR
OWN RECOGNIZANCE AND THE "TEN-PERCENTERS" BY NOTHING THAT THE
RECOGNIZANCE PRACTICE IS "HISTORIC," WHEREAS THE COST-RETENTION
PROVISION WAS RECENTLY ENACTED TO END THE EVILS SPAWNED BY BAIL
BONDSMEN.  /7/  THIS DISTINCTION, HOWEVER, DOES NOT CONFRONT THE
REALITY THAT BOTH CLASSES OF PERSONS RECEIVE BENEFITS AND ONLY ONE
CLASS MUST PAY ADMINISTRATIVE COSTS.  A SECOND ATTEMPT TO DISTINGUISH
BETWEEN THOSE RELEASED ON THEIR OWN RECOGNIZANCE AND THOSE WHO DEPOSIT
10% TURNS ON THE IDEA THAT THE MEMBERS OF THE FORMER CLASS ARE MORE
"WORTHY" OF THE BENEFIT THEY RECEIVE AND THEREFORE MAY RATIONALLY BE
REQUIRED TO PAY LESS.  BUT WHILE THE CRITERIA USED BY JUDGES TO
DETERMINE RELEASE ON ONE'S OWN RECOGNIZANCE-- E.G., LENGTH OF RESIDENCE
IN THE JURISDICTION, MARITAL STATUS, EMPLOYMENT RECORD, OR PAST
CRIMINAL RECORD-- ARE OBVIOUSLY RELEVANT TO THE RECOGNIZANCE DECISION,
THEY ARE NOT RATIONALLY RELATED TO THE DECISION TO IMPOSE PURELY
ADMINISTRATIVE COSTS, ESPECIALLY WHEN SUCH COSTS ARE AT LEAST AS GREAT
FOR THOSE RELEASED ON THEIR OWN RECOGNIZANCE AS FOR THOSE REQUIRED TO
POST BOND. 

GIVEN THE INFIRMITIES IN THE ASSERTED JUSTIFICATIONS FOR SEC. 110
7(F), I THINK THE IMPOSITION OF ADMINISTRATIVE COSTS ON ONLY ONE CLASS
OF THOSE PERSONS SEEKING PRETRIAL RELEASE VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  ACCORDINGLY, I WOULD REVERSE THE
JUDGMENT BEFORE US.

/1/ OTHER COMMON ABUSES PERPETUATED BY THE BONDSMAN SYSTEM WERE
OVERCHARGES OF BAIL FEES, FAILURE TO RETURN SECURITY PLEDGES TO THE
OWNER, AND RETENTION OF MONEY REIMBURSEMENTS FOR FORFEITED BOND
JUDGMENTS WHICH WERE LATER VACATED.  D. FREED & P. WALD, BAIL IN THE
UNITED STATES:  1964, P. 34 (1964).  ACCORDING TO THE APPELLEES' BRIEF,
THE ILLINOIS REFORMS HAVE APPARENTLY PUT AN END TO THE ACTIVITIES OF
PROFESSIONAL BONDSMEN.  AS THE ILLINOIS SUPREME COURT NOTED:  "(THE
ULTIMATE OBJECTIVE OF THIS REFORM WAS TO REGAIN FROM PROFESSIONAL
BONDSMEN THE CONTROL OF BAIL RELEASES AND RESTORE SUCH CONTROL TO THE
COURTS WHERE IT RIGHTFULLY BELONGS."  46 ILL.2D 538, 544, 264 N.E.2D
377, 380-381 (1970). 

/2/  I WOULD DECIDE THIS CASE SOLELY ON THE GROUND THAT THE
PROVISION IN QUESTION ARBITRARILY DISCRIMINATES BETWEEN LIKE CLASSES OF
PERSONS.  I WOULD NOT, THEREFORE, REACH THE TWO OTHER ARGUMENTS URGED
BY THE APPELLANTS:  THAT THE PROVISION ARBITRARILY FAVORS THE RICH OVER
THE POOR AND THAT THE PROVISION VIOLATES DUE PROCESS BY IMPOSING COSTS
ON THOSE WHO ARE ULTIMATELY FOUND TO BE INNOCENT. 

/3/  AS THE COURT NOTES, THE PARTIES HAVE STIPULATED THAT THE
"ACTUAL COST OF ADMINISTERING THE PROVISIONS OF SAID SECTIONS 110-7 AND
110-8 ARE SUBSTANTIALLY THE SAME BUT THERE MAY PROBABLY BE A SLIGHTLY
HIGHER COST IN THE ADMINISTRATION OF SECTION 110-8."  WITH REGARD TO
THOSE RELEASED ON THEIR OWN RECOGNIZANCE (UNDER SEC. 110-2) AND THE
"TEN-PERCENTERS," THE APPELLEES ACKNOWLEDGED AT ORAL ARGUMENT THAT THE
ADMINISTRATION OF RELEASE FOR BOTH CLASSES IMPOSES EQUAL COSTS ON THE
STATE: 

"MR. ROONEY:  WE THINK (THOSE RELEASED ON THEIR OWN RECOGNIZANCE)
ARE A LITTLE DIFFERENTLY SITUATED THEN THOSE-- 

"QUESTION:  NOT EXPENSE WISE TO THE SYSTEM? 

"MR. ROONEY:  NOT EXPENSE WISE TO THE SYSTEM . . . "  TR. OF ORAL
ARG. 19-20. 

/4/  THE BAIL REFORM ACT OF 1966, 18 U.S.C. 3141-3152, A FEDERAL LAW
IN SOME WAYS SIMILAR TO ILLINOIS' PROVISIONS GOVERNING BAIL, PROVIDES
FOR "TEN-PERCENTERS" AT THE DISCRETION OF THE JUDGE.  HOWEVER, IT
IMPOSES NO ADMINISTRATIVE COSTS ON PERSONS SEEKING PRETRIAL RELEASE
THROUGH THE DEPOSIT OF SOMETHING LESS THAN THE FULL BAIL REQUIRED.  18
U.S.C. 3146(A)(3).  EARLIER VERSIONS OF THE LEGISLATION HAD IMPOSED AN
ADMINISTRATIVE COST OF 1% OF THE TOTAL BAIL REQUIRED ON THOSE WHO
ELECTED TO DEPOSIT 10%, S. 2840, 88TH CONG., 2D SESS. (1964). 

SEVERAL STATES ALLOW PERSONS TO OBTAIN PRETRIAL RELEASE BY
DEPOSITING A SUM LESS THAN THE FULL AMOUNT SET FOR BAIL.  TWO OF THESE,
IOWA, IOWA CODE ANN. SEC. 763.16.1C (SUPP. 1971), AND ALASKA, ALASKA
STAT. SEC. 12.30.020(B)(4) (SUPP. 1971), IMPOSE NO ADMINISTRATIVE
COSTS.  WISCONSIN IMPOSES A COST ONLY ON THOSE FOUND GUILTY, WIS. STAT.
SEC. 969.03(1)(C) (1969).  NEW YORK UNTIL RECENTLY IMPOSED A FLAT
PERCENTAGE FEE ON ALL WHO OBTAIN PRETRIAL RELEASE, REGARDLESS OF METHOD
CHOSEN.  N.Y. LAWS 1936, C. 518, AND N.Y. CODE CRIM. PROC. SEC. 586.3
(SUPP. 1970-1971).  THERE IS NOW NO FEE.  N.Y. CRIMINAL PROCEDURE LAW
SECS. 520.10-520.30.     /5/  THE DISSENT IN THE ILLINOIS SUPREME COURT
TOOK "JUDICIAL NOTICE OF THE FACT THAT MANY DEFENDANTS CANNOT AFFORD TO
PAY THE FULL AMOUNT OF THE BAIL."  46 ILL.2D,AT 553, 264 N.E.2D,AT
385.  FROM THIS BASIC FACT IT CAN BE ARGUED THAT, SINCE MANY OF THOSE
ACCUSED HAVE NO CHOICE BUT TO DEPOSIT 10%, THE IMPOSITION OF
ADMINISTRATIVE COSTS UPON THAT CLASS ALONE AMOUNTS TO A VIOLATION OF
THE EQUAL PROTECTION AND THE DUE PROCESS CLAUSES OF THE FOURTEENTH
AMENDMENT.  GRIFFIN V. ILLINOIS, 351 U.S. 12. 

/6/  THE APPELLEES CONTEND THAT THOSE WHO OFFER THE FULL AMOUNT OF
BAIL IN CASH ACTUALLY PAY AN ADMINISTRATIVE COST BECAUSE THEY SACRIFICE
THE INTEREST THAT WOULD ACCRUE ON THE MONEY.  HOWEVER, THIS ARGUMENT
TOTALLY FAILS TO MEET THE OBJECTION RAISED WITH REGARD TO THOSE
RELEASED ON THEIR OWN RECOGNIZANCE.  MOREOVER, THOSE WHO OFFER STOCKS
OR BONDS OR WHO SECURE PROPERTY TO OBTAIN THEIR RELEASE MAY NOT,
APPARENTLY, LOSE ANY INCOME THAT MIGHT ACCRUE ON THOSE ITEMS DURING THE
PERIOD BEFORE TRIAL.  THE STATUTORY SCHEME GOVERNING BAIL DOES NOT BY
ITS TERMS PROVIDE FOR THE STATE TO RECEIVE INTEREST, DIVIDENDS, OR RENT
ON STOCKS OR BONDS OR LAND.  THE RECORD BEFORE US IS SILENT ON THE
QUESTION OF ILLINOIS PRACTICE WITH REGARD TO THE BENEFITS THAT FLOW
FROM THOSE SOURCES OF INCOME BEFORE TRIAL.  STOCKS AND BONDS ARE
DEPOSITED WITH THE CLERK OF THE COURT, BUT THERE IS NO INDICATION THAT
THE ACCUSED DOES NOT CONTINUE TO RECEIVE EARNINGS.  SIMILARLY, THE
ACCUSED GIVES THE STATE FIRST LIEN ON THE REAL ESTATE OFFERED AS BOND,
BUT THERE IS NO INDICATION THAT THE ACCUSED IS DEPRIVED OF THE USE OF
THE LAND.  ILL. REV. STAT., C. 38, SEC. 110-8 (1963). 

/7/  THE COURT REFERS TO A STATEMENT MADE IN ORAL ARGUMENT THAT THE
STATE OF ILLINOIS HAS NEVER IMPOSED COSTS ON THOSE WHO OBTAIN RELEASE
ON THEIR OWN RECOGNIZANCE.  BUT UNDER THE RULES GOVERNING PRETRIAL
RELEASE THAT EXISTED BEFORE THE 1963 REFORMS, THE STATE DID NOT IMPOSE
ADMINISTRATIVE COSTS ON ANYONE OBTAINING PRETRIAL RELEASE.  46 ILL.2D
538, 264 N.E.2D 377.  THE QUESTION HERE IS WHETHER THE CURRENT,
SELECTIVE IMPOSITION OF ADMINISTRATIVE COSTS BY THE STATE IS
CONSTITUTIONAL. 

JOHN J. O'TOOLE ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE JOHN C. CASTANES AND CORNELIUS F. DORE. 

JAMES A. ROONEY ARGUED THE CAUSE FOR APPELLEES PRO HAC VICE.  WITH
HIM ON THE BRIEF WERE ROBERT H. RICE AND EUGENE H. WIDMAN. 
..END :














NORTH CAROLINA V. RICE, 404 U.S. 244 


       NORTH CAROLINA V. RICE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 70-77.  ARGUED OCTOBER 12, 1971-- DECIDED DECEMBER 14,

           1971 


RESPONDENT WAS CONVICTED IN A GENERAL COUNTY COURT IN NORTH CAROLINA
OF DRIVING WHILE INTOXICATED AND WAS SENTENCED TO NINE MONTHS'
IMPRISONMENT AND PAYMENT OF A FINE.  ON APPEAL, HE WAS TRIED DE NOVO IN
THE SUPERIOR COURT, FOUND GUILTY, AND GIVEN A TWO-YEAR SENTENCE.  THE
DISTRICT COURT DENIED HABEAS CORPUS, AND RESPONDENT, WHO BY THEN HAD
BEEN COMPLETELY DISCHARGED FROM PRISON, APPEALED TO THE COURT OF
APPEALS.  THAT COURT, RELYING ON NORTH CAROLINA V. PEARCE, 395 U.S.
711, HELD THAT THE CASE WAS NOT MOOTED BY RESPONDENT'S DISCHARGE, AND
THAT RESPONDENT WAS ENTITLED TO HAVE THE RECORD OF HIS CONVICTION
EXPUNGED.  HELD:  NORTH CAROLINA V. PEARCE, SUPRA, DOES NOT REQUIRE
THAT RESPONDENT'S CONVICTION BE INVALIDATED BUT ONLY THAT HE BE
RESENTENCED IF THE HIGHER SENTENCE IMPOSED AFTER THE DE NOVO TRIAL WAS
VULNERABLE UNDER PEARCE.  SINCE THE PRESENT RECORD DEALS WITH THE
MOOTNESS ISSUE ONLY FROM THE STANDPOINT OF CONVICTION VEL NON AND DOES
NOT REVEAL WHETHER, UNDER STATE LAW, BENEFITS ACCRUE TO RESPONDENT IN
HAVING HIS SENTENCE REDUCED AFTER HE HAS SERVED IT, THE CASE IS
REMANDED FOR RECONSIDERATION OF THE MOOTNESS QUESTION. 

434 F.2D 297, VACATED AND REMANDED. 

PER CURIAM. 

ON JULY 2, 1968, RESPONDENT RICE WAS ARRESTED FOR DRIVING WHILE
INTOXICATED ON A NORTH CAROLINA STATE HIGHWAY.  HE WAS TRIED IN THE
GENERAL COUNTY COURT OF BUNCOMBE COUNTY, CONVICTED, AND SENTENCED TO
IMPRISONMENT FOR NINE MONTHS WITH SENTENCE SUSPENDED UPON PAYMENT OF
$100 FINE AND COSTS.  ON APPEAL HE WAS TRIED DE NOVO IN THE SUPERIOR
COURT, FOUND GUILTY, AND SENTENCED TO TWO YEARS' IMPRISONMENT.  STATE
POST-CONVICTION PROCEDURES WERE UNAVAILING.  ON APPEAL FROM DENIAL OF
FEDERAL HABEAS CORPUS, THE COURT OF APPEALS FOR THE FOURTH CIRCUIT HELD
THAT UNDER NORTH CAROLINA V. PEARCE, 395 U.S. 711 (1969), "THE MORE
DRASTIC SENTENCE ON THE SECOND TRIAL (WAS) A DENIAL OF FEDERAL DUE
PROCESS, IN THAT BY DISCOURAGEMENT IT IMPINGES UPON THE STATE-GIVEN
APPEAL."  434 F.2D 297, 300 (1970).  ALTHOUGH "(HE WAS COMPLETELY
DISCHARGED BY NORTH CAROLINA ON JANUARY 24, 1970 . . . THIS DID NOT
MOOT THE CASE ON HABEAS CORPUS" BECAUSE INJURIOUS CONSEQUENCES FROM THE
CONVICTION MIGHT STILL OBTAIN.  IBID.  THE JUDGMENT WAS THAT RICE WAS
ENTITLED TO HAVE THE RECORD OF HIS CONVICTION EXPUNGED.  THE STATE'S
PETITION FOR WRIT OF CERTIORARI WAS GRANTED.  401 U.S. 1008 (1971). 

THE STATE CLAIMS THAT PEARCE DOES NOT APPLY TO A SITUATION WHERE THE
MORE SEVERE SENTENCE IS IMPOSED AFTER A TRIAL DE NOVO IN ITS SUPERIOR
COURT.  WE DO NOT REACH THAT QUESTION, HOWEVER, SINCE THE THRESHOLD
ISSUE OF MOOTNESS WAS IMPROPERLY DISPOSED OF BY THE COURT OF APPEALS. 
ALTHOUGH NEITHER PARTY HAS URGED THAT THIS CASE IS MOOT, RESOLUTION OF
THE QUESTION IS ESSENTIAL IF FEDERAL COURTS ARE TO FUNCTION WITHIN
THEIR CONSTITUTIONAL SPHERE OF AUTHORITY.  EARLY IN ITS HISTORY, THIS
COURT HELD THAT IT HAD NO POWER TO ISSUE ADVISORY OPINIONS, HAYBURN'S
CASE, 2 DALL.  409 (1792), AS INTERPRETED IN MUSKRAT V. UNITED STATES,
219 U.S. 346, 351-353 (1911), AND IT HAS FREQUENTLY REPEATED THAT
FEDERAL COURTS ARE WITHOUT POWER TO DECIDE QUESTIONS THAT CANNOT AFFECT
THE RIGHTS OF LITIGANTS IN THE CASE BEFORE THEM.  OIL WORKERS UNIONS V.
MISSOURI, 361 U.S. 363, 367 (1960).  TO BE COGNIZABLE IN A FEDERAL
COURT, A SUIT "MUST BE DEFINITE AND CONCRETE, TOUCHING THE LEGAL
RELATIONS OF PARTIES HAVING ADVERSE LEGAL INTERESTS.  . . . IT MUST BE
A REAL AND SUBSTANTIAL CONTROVERSY ADMITTING OF SPECIFIC RELIEF THROUGH
A DECREE OF A CONCLUSIVE CHARACTER, AS DISTINGUISHED FROM AN OPINION
ADVISING WHAT THE LAW WOULD BE UPON A HYPOTHETICAL STATE OF FACTS." 
AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240-241 (1937).  HOWEVER,
"(MOOT QUESTIONS REQUIRE NO ANSWER."  MISSOURI, KANSAS & TEXAS R. CO.
V. FERRIS, 179 U.S. 602, 606 (1900).  MOOTNESS IS A JURISDICTIONAL
QUESTION BECAUSE THE COURT "IS NOT EMPOWERED TO DECIDE MOOT QUESTIONS
OR ABSTRACT PROPOSITIONS," UNITED STATES V. ALASKA S.S. CO., 253 U.S.
113, 116 (1920), QUOTING CALIFORNIA V. SAN PABLO & TULARE R. CO., 149
U.S. 308, 314 (1893); OUR IMPOTENCE "TO REVIEW MOOT CASES DERIVES FROM
THE REQUIREMENT OF ARTICLE III OF THE CONSTITUTION UNDER WHICH THE
EXERCISE OF JUDICIAL POWER DEPENDS UPON THE EXISTENCE OF A CASE OR
CONTROVERSY."  LINER V. JAFCO, INC., 375 U.S. 301, 306 N. 3 (1964). 
SEE ALSO POWELL V. MCCORMACK, 395 U.S. 486, 496 N. 7 (1969).  EVEN IN
CASES ARISING IN THE STATE COURTS, THE QUESTION OF MOOTNESS IS A
FEDERAL ONE WHICH A FEDERAL COURT MUST RESOLVE BEFORE IT ASSUMES
JURISDICTION.  HENRY V. MISSISSIPPI, 379 U.S. 443, 447 (1965).  LINER
V. JAFCO, INC., SUPRA, AT 304. 

THE COURT OF APPEALS HELD THAT THE CASE WAS NOT MOOT BECAUSE IT
ASSUMED THAT PEARCE MANDATED EXPUNCTION OF RICE'S CONVICTION AND
BECAUSE THE CONVICTION, UNEXPUNGED, WOULD HAVE COLLATERAL CONSEQUENCES
ENTITLING RICE TO CHALLENGE IT.  A NUMBER OF DISABILITIES MAY ATTACH TO
A CONVICTED DEFENDANT EVEN AFTER HE HAS LEFT PRISON, /1/  AND THE COURT
HAS RECOGNIZED THE STANDING OF SUCH PERSONS TO CHALLENGE THE LEGALITY
OF THEIR CONVICTIONS EVEN WHEN THEIR SENTENCES HAVE BEEN SERVED.  /2/
IT COULD NOT BE CLEARER, HOWEVER, THAT PEARCE DOES NOT INVALIDATE THE
CONVICTION THAT RESULTED FROM RICE'S SECOND TRIAL; PEARCE WENT NO
FURTHER THAN TO AFFIRM THE JUDGMENT OF A FEDERAL COURT ORDERING
PEARCE'S RELEASE "(UPON THE FAILURE OF THE STATE COURT TO RESENTENCE
PEARCE WITHIN 60 DAYS . . . ."  395 U.S.,AT 714.  PEARCE, IN SHORT,
REQUIRES ONLY RESENTENCING; THE CONVICTION IS NOT IPSO FACTO SET ASIDE
AND A NEW TRIAL REQUIRED.  EVEN IF THE HIGHER SENTENCE IMPOSED AFTER
RICE'S TRIAL DE NOVO WAS VULNERABLE UNDER PEARCE, RICE WAS ENTITLED
NEITHER TO HAVE HIS CONVICTION ERASED NOR TO AVOID THE COLLATERAL
CONSEQUENCES FLOWING FROM THAT CONVICTION AND A PROPER SENTENCE. 

RESPONDENT'S SOLE CLAIM UNDER PEARCE THUS RELATED TO THE SENTENCE HE
HAD COMPLETELY SERVED WHEN HE CAME BEFORE THE COURT OF APPEALS.  A
DIFFERENT QUESTION OF MOOTNESS IS THEREFORE PRESENTED THAN THE COURT OF
APPEALS CONSIDERED.  NULLIFICATION OF A CONVICTION MAY HAVE IMPORTANT
BENEFITS FOR A DEFENDANT, AS OUTLINED ABOVE, BUT URGING IN A HABEAS
CORPUS PROCEEDING THE CORRECTION OF A SENTENCE ALREADY SERVED IS
ANOTHER MATTER.  RESPONDENT WAS FIRST SENTENCED TO NINE MONTHS,
SUSPENDED UPON PAYMENT OF A $100 FINE; AFTER TRIAL DE NOVO HE WAS
SENTENCED TO TWO YEARS.  IN SOME JURISDICTIONS, IF A DEFENDANT IS
ADJUDICATED GUILTY, EITHER BY CONVICTION OR PLEA, AND THEN IS PLACED ON
PROBATION, NOT SENTENCED, OR GIVEN A SUSPENDED SENTENCE, STATUTES
IMPOSING DISABILITIES FOR CRIMINAL CONVICTIONS HAVE NO APPLICATION. 
/3/  ELSEWHERE, HOWEVER, THE SENTENCING STATUTES.  /4/  SINCE THE
PRESENT RECORD DEALS WITH THE MOOTNESS QUESTION ONLY FROM THE
STANDPOINT OF CONVICTION VEL NON AND IS OTHERWISE UNILLUMINATING AS TO
WHETHER THERE MAY BE BENEFITS TO RESPONDENT UNDER NORTH CAROLINA LAW IN
HAVING HIS SENTENCE REDUCED AFTER HE HAS SERVED THAT SENTENCE, IT WOULD
BE INAPPROPRIATE FOR US TO DEAL WITH THIS ISSUE AS IT HAS NOW EMERGED. 
ACCORDINGLY, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE TO THAT COURT FOR RECONSIDERATION OF THE QUESTION OF
MOOTNESS. 

           SO ORDERED. 

/1/  A CONVICTED CRIMINAL MAY BE DISENFRANCHISED, CF., E.G., MONT.
CONST., ART. IX, SEC. 2; MONT. REV. CODES ANN. SEC. 23-302 (1967);
OKLA. CONST., ART. III, SEC. 1; OKLA. STAT. ANN., TIT. 26, SEC. 93.1
(SUPP. 1971-1972); LOSE THE RIGHT TO HOLD FEDERAL OR STATE OFFICE, CF.,
E.G., DEL. CONST., ART. 2, SEC. 21; 18 U.S.C. 204; BE BARRED FROM
ENTERING CERTAIN PROFESSIONS, 7 U.S.C. SEC. 12A(2)(B); D.C. CODE ANN.
SECS. 47-2301 TO 47-2350 (1967); BE SUBJECT TO IMPEACHMENT WHEN
TESTIFYING AS A WITNESS, ARK. STAT. ANN. SEC. 28-605 (1962); ORE. 
REV.  STAT. SEC. 44.020 (1963); BE DISQUALIFIED FROM SERVING AS A
JUROR, IDAHO CONST., ART. 6, SEC. 3 ,IDAHO CODE SEC. 2-202 (1948); NEV.
CONST., ART. 4, SEC. 27, NEV. REV. STAT. SEC. 6.010 (1967); AND MAY BE
SUBJECT TO DIVORCE, W.VA. CODE ANN. SEC. 48-2-4 (SUPP. 1971).  SEE
GENERALLY COMMENT, CIVIL DISABILITIES OF FELONS, 53 VA.L.REV.  403
(1967); NOTE, THE EFFECT OF EXPUNGEMENT ON A CRIMINAL CONVICTION, 40
S.CAL.L.REV.  127 (1967). 

/2/  POLLARD V. UNITED STATES, 352 U.S. 354, 358 (1957); UNITED
STATES V. MORGAN, 346 U.S. 502, 512-513 (1954); FISWICK V. UNITED
STATES, 329 U.S. 211, 222 (1946); CARAFAS V. LAVALLEE, 391 U.S. 234,
237-240 (1968). 

/3/  SEE SPECIAL PROJECT, THE COLLATERAL CONSEQUENCES OF A CRIMINAL
CONVICTION, 23 VAND.L.REV.  929, 954 N. 97 (1970). 

/4/  IBID. 

MR. JUSTICE DOUGLAS WOULD AFFIRM THE JUDGMENT BELOW ON THE OPINION
OF THE COURT OF APPEALS IN 434 F.2D 297. 

JACOB L. SAFRON, ASSISTANT ATTORNEY GENERAL OF NORTH CAROLINA,
ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WAS ROBERT
MORGAN, ATTORNEY GENERAL.  JOINING IN AND ADOPTING THE BRIEF WERE THE
ATTORNEYS GENERAL FOR THEIR RESPECTIVE STATES AS FOLLOWS:  GARY K.
NELSON OF ARIZONA, RAY THORNTON OF ARKANSAS, ROBERT L. SHEVIN OF
FLORIDA, THEODORE L. SENDAK OF INDIANA, VERN MILLER OF KANSAS, JOHN B.
BRECKINRIDGE OF KENTUCKY, JAMES S. ERWIN OF MAINE, FRANCIS B. BURCH OF
MARYLAND, A. F. SUMMER OF MISSISSIPPI, ROBERT L. WOODAHL OF MONTANA,
CLARENCE A. H. MEYER OF NEBRASKA, HELGI JOHANNESON OF NORTH DAKOTA,
CRAWFORD C. MARTIN OF TEXAS, VERNON B. ROMNEY OF UTAH, AND ANDREW P.
MILLER OF VIRGINIA. 

WILLIAM W. VAN ALSTYNE ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT.  BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JOHN
W. BENOIT, JR., DEPUTY ATTORNEY GENERAL, FOR THE STATE OF MAINE, AND BY
VERNON B. ROMNEY, ATTORNEY GENERAL, OF UTAH, PRO SE. 

THE PRISON RESEARCH COUNCIL FILED A BRIEF AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :







WILWORDING V. SWENSON, 404 U.S. 249 


       WILWORDING ET AL. V. SWENSON, WARDEN

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

     COURT OF APPEALS FOR THE EIGHTH CIRCUIT

        NO. 70-5308.  DECIDED DECEMBER 14, 1971 


PETITIONERS' COMPLAINTS RELATING TO THE CONDITION OF THEIR
CONFINEMENT WERE HELD BY THE MISSOURI COURTS NOT TO BE COGNIZABLE BY
MEANS OF A PETITION FOR HABEAS CORPUS.  THE COURT OF APPEALS AFFIRMED
THE DISTRICT COURT'S SUBSEQUENT DISMISSAL OF THE HABEAS PETITIONS ON
THE GROUND THAT 28 U.S.C. 2254 HAD NOT BEEN SATISFIED BECAUSE OTHER
TYPES OF STATE REMEDIES MIGHT BE AVAILABLE.  HELD: 

1.  SECTION 2254 DOES NOT REQUIRE PETITIONERS TO PURSUE ALTERNATIVE
COURSES SUGGESTED BY THE COURT OF APPEALS SINCE THEIR AVAILABILITY WAS
CONJECTURAL AND, REGARDLESS OF THE REMEDY INVOKED, E STATE COURTS HAVE
NOT GRANTED A HEARING TO STATE PRISONERS ON THE CONDITIONS OF THEIR
CONFINEMENT. 

2.  PETITIONERS WERE ENTITLED TO HAVE THEIR ACTIONS TREATED AS
CLAIMS FOR RELIEF UNDER THE CIVIL RIGHTS ACTS, TO WHICH EXHAUSTION
REQUIREMENTS DO NOT APPLY. 

CERTIORARI GRANTED; 439 F.2D 1331, REVERSED AND REMANDED. 

PER CURIAM. 

ON THE GROUND THAT THEY CHALLENGED ONLY THEIR LIVING CONDITIONS AND
DISCIPLINARY MEASURES WHILE CONFINED IN MAXIMUM SECURITY AT MISSOURI
STATE PENITENTIARY, AND DID NOT SEEK THEIR RELEASE, PETITIONERS' STATE
HABEAS CORPUS PETITIONS WERE DISMISSED.  THE MISSOURI SUPREME COURT
AFFIRMED.  PETITIONERS THEN SOUGHT FEDERAL HABEAS CORPUS IN THE
DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI.  THE DISTRICT
COURT DISMISSED THE PETITIONS AND THE COURT OF APPEALS FOR THE EIGHTH
CIRCUIT AFFIRMED, 439 F.2D 1331.  ALTHOUGH PETITIONERS HAD EXHAUSTED
STATE HABEAS RELIEF THE COURT OF APPEALS AGREED WITH THE DISTRICT COURT
THAT THE REQUIREMENTS OF 28 U.S.C. 2254 HAD NOT BEEN SATISFIED BECAUSE
PETITIONERS HAD EXHAUSTED STATE HABEAS RELIEF THE COURT OF APPEALS
AGREED WITH THE DISTRICT COURT THAT THE REQUIREMENTS OF 28 U.S.C. 2254
HAD NOT BEEN SATISFIED BECAUSE PETITIONERS HAD NOT INVOKED ANY OF A
NUMBER OF POSSIBLE ALTERNATIVES TO STATE HABEAS INCLUDING "A SUIT FOR
INJUNCTION, A WRIT OF PROHIBITION, OR MANDAMUS OR A DECLARATORY
JUDGMENT IN THE STATE COURTS," OR PERHAPS OTHER RELIEF UNDER THE STATE
ADMINISTRATIVE PROCEDURE ACT.  ID., AT 1336. 

        I 

THE INVOCATION OF FEDERAL HABEAS CORPUS.  THE EXHAUSTION REQUIREMENT IS
MERELY AN ACCOMMODATION OF OUR FEDERAL SYSTEM DESIGNED TO GIVE THE
STATE AN INITIAL "OPPORTUNITY TO PASS UPON AND CORRECT" ALLEGED
VIOLATIONS OF ITS PRISONERS' FEDERAL RIGHTS.  FAY V. NOIA, 372 U.S.
391, 438 (1963).  PETITIONERS ARE NOT REQUIRED TO FILE "REPETITIOUS
APPLICATIONS" IN THE STATE COURTS.  BROWN V. ALLEN, 344 U.S. 443, 449
N. 3 (1953).  NOR DOES THE MERE POSSIBILITY OF SUCCESS IN ADDITIONAL
PROCEEDINGS BAR FEDERAL RELIEF.  ROBERTS V. LAVALLEE, 389 U.S. 40, 42
43 (1967); COLEMAN V. MAXWELL, 351 F.2D 285, 286 (CA6 1965).  WHETHER
THE STATE WOULD HAVE HEARD PETITIONERS' CLAIMS IN ANY OF THE SUGGESTED
ALTERNATIVE PROCEEDINGS IS A MATTER OF CONJECTURE; CERTAINLY NO
AVAILABLE PROCEDURE WAS INDICATED BY THE STATE SUPREME COURT IN EARLIER
CASES.  SEE MCMICHAELS V. HANCOCK, 428 F.2D 1222, 1223 (CA1 1970). 
FURTHERMORE, WE ARE NOT REFERRED TO A SINGLE INSTANCE, REGARDLESS OF
THE REMEDY INVOKED, IN WHICH THE MISSOURI COURTS HAVE GRANTED A HEARING
TO STATE PRISONERS ON THE CONDITIONS OF THEIR CONFINEMENT.  IN THESE
CIRCUMSTANCES SEC. 2254 DID NOT REQUIRE PETITIONERS TO PURSUE THE
SUGGESTED ALTERNATIVES AS A PREREQUISITE TO TAKING THEIR CLAIMS TO
FEDERAL COURT.  AS MR. JUSTICE RUTLEDGE STATED IN HIS CONCURRENCE IN
MARINO V. RAGEN, 332 U.S. 561, 568 (1947): 

"THE EXHAUSTION-OF-STATE-REMEDIES RULE SHOULD NOT BE STRETCHED TO
THE ABSURDITY OF REQUIRING THE EXHAUSTION OF . . . SEPARATE REMEDIES
WHEN AT THE OUTSET A PETITIONER CANNOT INTELLIGENTLY SELECT THE PROPER
WAY, AND IN CONCLUSION HE MAY FIND ONLY THAT NONE OF THE (ALTERNATIVES)
IS APPROPRIATE OR EFFECTIVE." 

        II 

MOREOVER, ALTHOUGH COGNIZABLE IN FEDERAL HABEAS CORPUS, SEE JOHNSON
V. AVERY, 393 U.S. 483 (1969), PETITIONERS' PLEADING MAY ALSO BE READ
TO PLEAD CAUSES OF ACTION UNDER THE CIVIL RIGHTS ACTS, 42 U.S.C. 1983,
AND 28 U.S.C.1343(3) AND 1343(4), FOR DEPRIVATION OF CONSTITUTIONAL
RIGHTS BY PRISON OFFICIALS.  AS TO LIKE ACTIONS, IN AN EXHAUSTIVE
OPINION IN JACKSON V. BISHOP, 404 F.2D 571 (CA8 1968), MR. JUSTICE
(THEN JUDGE) BLACKMUN STATED: 

     "THESE ACTIONS WERE INSTITUTED IN 1966 BY HAND-WRITTEN

  PETITIONS EMPLOYING VARYING TITLES (INCLUDING 'HABEAS CORPUS'). 

  EACH PLAINTIFF ASKED FOR THE APPOINTMENT OF COUNSEL AND

  PERMISSION TO PROCEED IN FORMA PAUPERIS.  THOSE REQUESTS WERE

  GRANTED.  APPOINTED COUNSEL THEN FILED AMENDED COMPLAINTS WHICH

  HAVE BEEN TREATED BY ALL CONCERNED AS PETITIONS FOR INJUNCTIVE

  RELIEF UNDER THE CIVIL RIGHTS STATUTES, 42 U.S.C. 1983 AND 28

  U.S.C. 1343(2) AND (4).  WE ARE SATISFIED AS TO JURISDICTION.  WE

  ARE ALSO SATISFIED, AS WERE THE DISTRICT JUDGES, THAT THE CASES

  ARE APPROPRIATELY TO BE REGARDED AS CLASS ACTIONS WITHIN THE

  SCOPE AND REACH OF RULE 23, FED. R. CIV. P."  ID., AT 572-573. 

PETITIONERS WERE THEREFORE ENTITLED TO HAVE THEIR ACTIONS TREATED AS
CLAIMS FOR RELIEF UNDER THE CIVIL RIGHTS ACTS, NOT SUBJECT, ON THE
BASIS OF THEIR ALLEGATIONS, TO EXHAUSTION REQUIREMENTS.  THE REMEDY
PROVIDED BY THESE ACTS "IS SUPPLEMENTARY TO THE STATE REMEDY, AND THE
LATTER NEED NOT BE FIRST SOUGHT AND REFUSED BEFORE THE FEDERAL ONE IS
INVOKED."  MONROE V. PAPE, 365 U.S. 167, 183 (1961); MCNEESE V. BOARD
OF EDUCATION, 373 U.S. 668 (1963); DAMICO V. CALIFORNIA, 389 U.S. 416
(1967).  STATE PRISONERS ARE NOT HELD TO ANY STRICTER STANDARD OF
EXHAUSTION THAN OTHER CIVIL RIGHTS PLAINTIFFS.  HOUGHTON V. SHAFER, 392
U.S. 639 (1968).  THERE AN INMATE'S CHALLENGE TO THE CONFISCATION OF
HIS LEGAL MATERIALS WITHOUT FIRST SEEKING ADMINISTRATIVE REDRESS WAS
SUSTAINED.  ALTHOUGH THE PROBABLE FUTILITY OF SUCH ADMINISTRATIVE
APPEALS WAS NOTED, WE HELD THAT IN "ANY EVENT, RESORT TO THESE REMEDIES
IS UNNECESSARY."  ID., AT 640.  640.  ACCORDINGLY, THE MOTIONS TO
PROCEED IN FORMA PAUPERIS AND THE PETITION FOR CERTIORARI ARE GRANTED,
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  /1/

              I IS SO ORDERED. 

/1/  IT APPEARS THAT PETITIONERS DID SEEK RELIEF UNDER THE CIVIL
RIGHTS STATUTES BEFORE FILING THEIR PETITIONS BELOW, AND THAT THESE
CLAIMS WERE DENIED AFTER A HEARING.  THE DISSENT ASSERTS THAT THE
PETITION FOR CERTIORARI CONCEDES "THAT ALMOST ALL OF THE CLAIMS
INVOLVED IN THOSE ACTIONS UNDERLIE THE INSTANT HABEAS CORPUS
PROCEEDING."  WE ARE UNABLE TO FIND THAT CONCESSION IN THE PETITION. 
AT PAGE 11 OF THE PETITION THE FOLLOWING DOES APPEAR:  "ALMOST ALL OF
THE COMPLAINTS PRESENTED BY (THE EARLIER ACTIONS) HAD BEEN RAISED IN
THE HABEAS CORPUS PETITIONS ORIGINALLY FILED IN THE STATE COURTS
UNDERLYING THIS PETITION."  INDEED, PETITIONERS' COUNSEL IN HIS REPLY
BRIEF DISCLAIMS KNOWLEDGE OF WHAT CLAIMS WERE PRESENTED IN THE CASES,
STATING:  "AS THIS WRITER DID NOT PARTICIPATE AS COUNSEL IN THE CIVIL
RIGHTS ACT CASES AND IN VIEW OF THE GENERALIZED NATURE OF THE CLAIMS
FOR RELIEF IN THE PETITIONS HEREIN, IT IS NOT KNOWN WHETHER ALL OF THE
ISSUES INTENDED TO BE PRESENTED BY THOSE PETITIONS WERE PRESENTED IN
THE CIVIL RIGHTS ACT CASES."  REPLY BRIEF 7.  ACCORDINGLY, WE MUST
CONCLUDE THAT IT IS NOT CLEAR FROM THE RECORD WHETHER THE ISSUES RAISED
IN THE EARLIER CASES ARE THE SAME AS THOSE PRESENTED HERE.  THE EFFECT,
IF ANY, OF THOSE ACTIONS UPON THE INSTANT CASES MUST THEREFORE BE
DETERMINED ON REMAND. 

MR.JUSTICE BLACKMUN CONCURS IN THE JUDGMENT OF THE COURT AND IN PART
II OF THE COURT'S PER CURIAM OPINION. 

MR.CHIEF JUSTICE BURGER, DISSENTING. 

THIS CASE IS SINGULARLY INAPPROPRIATE FOR SUMMARY REVERSAL WITHOUT
AN ADEQUATE RECORD, AND WITHOUT BRIEFS OR ARGUMENT.  THE COURT ASSUMES
WITHOUT CITATION OF AUTHORITY THAT FURTHER RESORT TO STATE REMEDIES
WOULD BE FUTILE; THE DISTRICT JUDGE, FAR MORE FAMILIAR THAN WE WITH THE
LOCAL SITUATION, THOUGH OTHERWISE.  THE COURT DOES NOT REST ITS
REVERSAL ON THIS GROUND, HOWEVER, FOR IT BLANDLY TREATS PETITIONERS'
HABEAS CORPUS PETITIONS A COMPLAINTS UNDER 42 U.S.C. 1983, AN APPROACH
THAT PETITIONERS' EXPERIENCED COUNSEL HAS STUDIOUSLY AND APPROPRIATELY
AVOIDED.  PETITIONERS HAD PREVIOUSLY FILED COMPLAINTS EXPRESSLY UNDER
SEC. 1983, WHICH WERE DENIED AFTER FULL HEARING.  IT IS CONCEDED IN THE
PETITION FOR CERTIORARI THAT ALMOST ALL OF THE CLAIMS INVOLVED IN THOSE
ACTIONS UNDERLIE THE INSTANT HABEAS CORPUS PROCEEDING; BUT PETITIONERS'
COUNSEL ARGUES THAT THE DOCTRINE OF RES JUDICATA HAS NO APPLICATION IN
HABEAS CORPUS.  THE COURT DOES NOT EXPLAIN WHY THIS ARGUMENT IS NOT
LOST IF THE HABEAS CORPUS PETITIONS ARE TREATED AS COMPLAINTS UNDER
SEC. 1983. 

I HAD PREVIOUSLY THOUGHT THAT SUMMARY REVERSAL WAS LIMITED TO CASES
WHERE THE ERROR WAS MANIFEST.  HERE, HOWEVER, THE COURT HAS CHALLENGED
THE CONCLUSION OF THE COURT OF APPEALS LARGELY ON THE BASIS OF SURMISE
AND HAS GONE ON TO REVERSE ON A THEORY THAT THE COURT OF APPEALS WAS
NOT ASKED TO CONSIDER AND PRESUMABLY COULD NOT HAVE CONSIDERED. 
HOWEVER, THAT MINERAL LEASES ON THE OUTER CONTINENTAL SHELF SHALL
..END :



O'KEEFFE V. AEROJET-GENERAL SHIPYARDS, 404 U.S. 254 


       O'KEEFFE, DEPUTY COMMISSIONER, SIXTH COMPENSATION DISTRICT,

           DEPARTMENT OF LABOR V. AEROJET-GENERAL SHIPYARDS, INC.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 71-262.  DECIDED DECEMBER 14, 1971 


ACT, PERMITTING A LABOR DEPARTMENT DEPUTY COMMISSIONER "(UPON HIS OWN
INITIATIVE . . . BECAUSE OF A MISTAKE IN A DETERMINATION OF FACT" TO
REVIEW A LONGSHOREMAN'S COMPENSATION CLAIM WITHIN ONE YEAR AFTER ITS
REJECTION AND ISSUE A NEW OR MODIFIED COMPENSATION ORDER, HELD TO
AUTHORIZE THE DEPUTY COMMISSIONER TO CORRECT FACTUAL ERRORS REVEALED BY
WHOLLY NEW OR CUMULATIVE EVIDENCE OR FURTHER REFLECTION ON INITIALLY
SUBMITTED EVIDENCE. 

CERTIORARI GRANTED; 442 F.2D 508, REVERSED AND REMANDED. 

PER CURIAM. 

PETITIONER, A LABOR DEPARTMENT DEPUTY COMMISSIONER, REJECTED AN
EMPLOYEE'S CLAIM AGAINST RESPONDENT UNDER THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT, 44 STAT.1424, AS AMENDED, 33 U.S.C. 901 ET
SEQ., ON THE GROUND THAT THE PROOFS FAILED TO ESTABLISH THAT HIS
DISABILITY WAS RELATED TO CONDITIONS OF HIS EMPLOYMENT.  THEREAFTER
PETITIONER REOPENED THE CASE PURSUANT TO SEC. 22 OF THE ACT, 33
U.S.C.922.  ON THE BASIS OF TESTIMONY BY THE EMPLOYEE'S PERSONAL
PHYSICIAN AND A COMMISSION-APPOINTED DOCTOR, PETITIONER CONCLUDED,
CONTRARY TO HIS INITIAL DETERMINATION, THAT THE DISABLING CONDITION HAD
IN FACT BEEN "MATERIALLY AGGRAVATED AND HASTENED" BY THE CIRCUMSTANCES
OF EMPLOYMENT, AND AWARDED HIM COMPENSATION.  THE DISTRICT COURT
SUSTAINED THE AWARD BUT THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, ONE
JUDGE DISSENTING, REVERSED.  442 F.2D 508.  THE COURT OF APPEALS HELD
THAT IN THE ABSENCE OF CHANGED CONDITIONS OR NEW EVIDENCE CLEARLY
DEMONSTRATING MISTAKE IN THE INITIAL DETERMINATION, THE "STATUTE SIMPLY
DOES NOT CONFER AUTHORITY UPON THE DEPUTY COMMISSIONER TO RECEIVE
ADDITIONAL BUT CUMULATIVE EVIDENCE AND CHANGE HIS MIND."  442 F.2D,AT
513. 

NEITHER THE WORDING OF THE STATUTE NOR ITS LEGISLATIVE HISTORY
SUPPORTS THIS "NARROWLY TECHNICAL AND IMPRACTICAL CONSTRUCTION." 
LUCKENBACH S.S. CO. V. NORTON, 106 F.2D 137, 138 (CA3 1939).  SECTION
22 OF THE ACT PROVIDES: 

     "UPON HIS OWN INITIATIVE, OR UPON THE APPLICATION OF ANY PARTY

  IN INTEREST, ON THE GROUND OF A CHANGE IN CONDITIONS OR BECAUSE

  OF A MISTAKE IN A DETERMINATION OF FACT BY THE DEPUTY

  COMMISSIONER, THE DEPUTY COMMISSIONER MAY, AT ANY TIME PRIOR TO

  ONE YEAR AFTER THE DATE OF THE LAST PAYMENT OF COMPENSATION,

WHETHER OR NOT A COMPENSATION ORDER HAS BEEN ISSUED, OR AT ANY

  TIME PRIOR TO ONE YEAR AFTER THE REJECTION OF A CLAIM, REVIEW A

  COMPENSATION CASE IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN

  RESPECT OF CLAIMS IN SECTION 919 OF THIS TITLE, AND IN ACCORDANCE

  WITH SUCH SECTION ISSUE A NEW COMPENSATION ORDER WHICH MAY

  TERMINATE, CONTINUE, REINSTATE, INCREASE, OR DECREASE SUCH

  COMPENSATION, OR AWARD COMPENSATION . . . ."  33 U.S.C. 922. 

THUS, ON ITS FACE, THE SECTION PERMITS A REOPENING WITHIN ONE YEAR
"BECAUSE OF A MISTAKE IN A DETERMINATION OF FACT."  THERE IS NO
LIMITATION TO PARTICULAR FACTUAL ERRORS, OR TO CASES INVOLVING NEW
EVIDENCE OR CHANGED CIRCUMSTANCES.  THE ACT AT ONE TIME DID AUTHORIZE
REOPENING ONLY ON THE "GROUND OF A CHANGE IN CONDITIONS," 44 STAT.
1437, BUT WAS AMENDED IN 1934 EXPRESSLY TO "BROADEN THE GROUNDS ON
WHICH A DEPUTY COMMISSIONER CAN MODIFY AN AWARD.  . . WHEN CHANGED
CONDITIONS OR A MISTAKE IN A DETERMINATION OF FACT MAKES SUCH
MODIFICATION DESIRABLE IN ORDER TO RENDER JUSTICE UNDER THE ACT."  S.
REP. NO. 588, 73D CONG., 2D SESS., 3-4 (1934); H.R. REP. NO. 1244, 73D
CONG., 2D SESS., 4 (1934).  THE PLAIN IMPORT OF THIS AMENDMENT WAS TO
VEST A DEPUTY COMMISSIONER WITH BROAD DISCRETION TO CORRECT MISTAKES OF
FACT, WHETHER DEMONSTRATED BY WHOLLY NEW EVIDENCE, CUMULATIVE EVIDENCE,
OR MERELY FURTHER REFLECTION ON THE EVIDENCE INITIALLY SUBMITTED. 

NOR DOES OUR CONSTRUCTION "RENDER MEANINGLESS THE PROVISION (OF SEC.
21 OF THE ACT, 33 U.S.C. 921) THAT (A COMPENSATION) ORDER BECOMES FINAL
UNLESS PROCEEDINGS FOR REVIEW ARE BROUGHT WITHIN THIRTY DAYS."  CASE V.
CALBECK, 304 F.2D 198, 201 (CA5 1962).  THE REVIEW AUTHORIZED BY SEC.
21 IS LIMITED TO THE LEGAL VALIDITY OF THE AWARD; A DISTRICT COURT MAY
SET ASIDE AN AWARD ONLY IF IT IS "NOT IN ACCORDANCE WITH LAW."  SECTION
21(B), 33 U.S.C. 921(B).  THE 30-DAY LIMIT OF SEC. 21 IS NOT "RENDERED
MEANINGLESS" BY SETTING A DIFFERENT TIME LIMIT FOR A REDETERMINATION OF
FACT.  MOREOVER, THE ABSENCE OF A PROVISION IN SEC. 21 FOR THE JUDICIAL
REVIEW OF EVIDENCE CONFIRMS THE NEED FOR A BROAD DISCRETION IN THE
DEPUTY COMMISSIONER, TO REVIEW FACTUAL ERRORS IN AN EFFORT "TO RENDER
JUSTICE UNDER THE ACT." 

THE PETITION FOR CERTIORARI IS GRANTED, THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED, AND THE CASE IS REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 
..END :










MAYER V. CITY OF CHICAGO, 404 U.S. 189 


       MAYER V. CITY OF CHICAGO

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 70-5040.  ARGUED OCTOBER 14, 1971-- DECIDED DECEMBER
13,

           1971 


APPELLANT WAS CONVICTED ON NONFELONY CHARGES OF VIOLATING TWO CITY OF
CHICAGO ORDINANCES AND WAS SENTENCED TO PAY A FINE OF $250 ON EACH
OFFENSE.  DESIRING TO APPEAL, HE PETITIONED THE TRIAL COURT FOR A FREE
TRIAL TRANSCRIPT TO SUPPORT HIS APPEAL ON THE GROUNDS OF INSUFFICIENT
EVIDENCE AND PROSECUTORIAL MISCONDUCT.  ALTHOUGH THE COURT FOUND THAT
HE WAS INDIGENT, IT DENIED HIS APPLICATION ON THE BASIS OF AN ILLINOIS
SUPREME COURT RULE WHICH PROVIDED FOR TRIAL TRANSCRIPTS ONLY IN FELONY
CASES.  OTHER RULES PROVIDED ALTERNATIVES TO A TRANSCRIPT IN THE FORM
OF A "SETTLED STATEMENT" OR AN "AGREED STATEMENT OF FACTS."  WITHOUT
RESORTING TO EITHER ALTERNATIVE, APPELLANT MOVED FOR A FREE TRANSCRIPT
IN THE STATE SUPREME COURT.  THE MOTION WAS DENIED.  HELD: 

1.  ALTHOUGH THE STATE MUST AFFORD THE INDIGENT DEFENDANT A TRIAL
"'RECORD OF SUFFICIENT COMPLETENESS' TO PERMIT PROPER CONSIDERATION OF
(HIS) CLAIMS," DRAPER V. WASHINGTON, 372 U.S. 487, 499, IT NEED NOT
NECESSARILY FURNISH A COMPLETE VERBATIM TRANSCRIPT, BUT MAY PROVIDE
ALTERNATIVES THAT ACCORD EFFECTIVE APPELLATE REVIEW.  PP. 193-195. 

2.  WHEN THE DEFENDANT'S GROUNDS FOR APPEAL, AS HERE, MAKE OUT A
COLORABLE NEED FOR A COMPLETE TRANSCRIPT, THE STATE HAS THE BURDEN OF
SHOWING THAT ONLY A PORTION THEREOF OR AN "ALTERNATIVE" WILL SUFFICE
FOR AN EFFECTIVE APPEAL ON THOSE GROUNDS.  P.195. 

3.  THE DISTINCTION DRAWN BY THE STATE SUPREME COURT RULE BETWEEN
FELONY AND NONFELONY OFFENSES IS AN "UNREASONED DISTINCTION" PROSCRIBED
BY THE FOURTEENTH AMENDMENT.  PP. 195-196. 

4.  THE FACT THAT THE CHARGES ON WHICH THE APPELLANT WAS CONVICTED
WERE PUNISHABLE BY A FINE RATHER THAN BY CONFINEMENT DOES NOT LESSEN
THE INVIDIOUS DISCRIMINATION AGAINST AN INDIGENT DEFENDANT.  PP. 196
198. 

VACATED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  BURGER,
C. J., POST, P. 199, AND BLACKMUN, J., OST, P. 201, FILED CONCURRING
OPINIONS. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

A JURY IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, CONVICTED
APPELLANT ON NONFELONY CHARGES OF DISORDERLY CONDUCT AND INTERFERENCE
WITH A POLICE OFFICER IN VIOLATION OF ORDINANCES OF THE CITY OF
CHICAGO.  HE WAS SENTENCED TO A $250 FINE ON EACH OFFENSE; VIOLATION OF
EACH ORDINANCE CARRIED A MAXIMUM PENALTY OF $500.  DESIRING TO APPEAL,
HE PETITIONED THE CIRCUIT COURT FOR A FREE TRANSCRIPT OF THE
PROCEEDINGS OF HIS TRIAL TO SUPPORT HIS GROUNDS OF APPEAL THAT THE
EVIDENCE WAS INSUFFICIENT FOR CONVICTION AND THAT MISCONDUCT OF THE
PROSECUTOR DENIED HIM A FAIR TRIAL.  /1/  THE CIRCUIT COURT FOUND THAT
HE WAS INDIGENT, BUT DENIED HIS APPLICATION, STATING "THAT DEFENDANT
WAS FOUND GUILTY OF ORDINANCE VIOLATIONS AND . . . RULE 607 OF THE
SUPREME COURT APPLIES TO FELONY CASES."  THE REFERENCE WAS TO ILLINOIS
SUPREME COURT RULE 607(B), WHICH IN PERTINENT PART PROVIDED:  "IN ANY
CASE IN WHICH THE DEFENDANT IS CONVICTED OF A FELONY, HE MAY PETITION
THE COURT IN WHICH HE WAS CONVICTED FOR A REPORT OF PROCEEDINGS AT HIS
TRIAL."  /2/  OTHER ILLINOIS SUPREME COURT RULES, RULES 323(C) AND
323(D), PROVIDED FOR ALTERNATIVES TO A TRANSCRIPT IN THE FORM OF A
"SETTLED STATEMENT" OR AN "AGREED STATEMENT OF FACTS."  /3/  WITHOUT
RESORTING TO EITHER ALTERNATIVE, APPELLANT MADE A MOTION IN THE
ILLINOIS SUPREME COURT FOR AN ORDER THAT HE BE FURNISHED A TRANSCRIPT
OF PROCEEDINGS WITHOUT COST.  THE SUPREME COURT DENIED THE MOTION IN AN
UNREPORTED ORDER WITHOUT FILING AN OPINION.  WE NOTED PROBABLE
JURISDICTION OF APPELLANT'S APPEAL CHALLENGING THE CONSTITUTIONALITY OF
THE LIMITATION OF RULE 607(B) TO FELONY CASES.  401 U.S. 906 (1971). 

        I 

GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956), IS THE WATERSHED OF OUR
TRANSCRIPT DECISIONS.  WE HELD THERE THAT "(DESTITUTE DEFENDANTS MUST
BE AFFORDED AS ADEQUATE APPELLATE REVIEW AS DEFENDANTS WHO HAVE MONEY
ENOUGH TO BUY TRANSCRIPTS."  ID., AT 19.  THIS HOLDING RESTED ON THE
"CONSTITUTIONAL GUARANTIES OF DUE PROCESS AND EQUAL PROTECTION BOTH (OF
WHICH) CALL FOR PROCEDURES IN CRIMINAL TRIALS WHICH ALLOW NO INVIDIOUS
DISCRIMINATIONS BETWEEN PERSONS AND DIFFERENT GROUPS OF PERSONS."  ID.,
AT 17.  WE SAID THAT "(PLAINLY THE ABILITY TO PAY COSTS IN ADVANCE
BEARS NO RATIONAL RELATIONSHIP TO A DEFENDANT'S GUILT OR INNOCENCE . .
. ," ID., AT 17-18, AND CONCLUDED THAT "(THERE CAN BE NO EQUAL JUSTICE
WHERE THE KIND OF TRIAL A MAN GETS DEPENDS ON THE AMOUNT OF MONEY HE
HAS."  ID., AT 19.  APPELLEE CITY OF CHICAGO URGES THAT WE RE-EXAMINE
GRIFFIN.  WE DECLINE TO DO SO.  FOR "IT IS NOW FUNDAMENTAL THAT, ONCE
ESTABLISHED . . . AVENUES (OF APPELLATE REVIEW) MUST BE KEPT FREE OF
UNREASONED DISTINCTIONS THAT CAN ONLY IMPEDE OPEN AND EQUAL ACCESS TO
THE COURTS."  RONALDI V. YEAGER, 384 U.S. 305, 310 (1966).  /4/
THEREFORE, "(IN ALL CASES THE DUTY OF THE STATE IS TO PROVIDE THE
INDIGENT AS ADEQUATE AND EFFECTIVE AN APPELLATE REVIEW AS THAT GIVEN
APPELLANTS WITH FUNDS . . . "  DRAPER V. WASHINGTON, 372 U.S. 487, 496
(1963).  IN TERMS OF A TRIAL RECORD, THIS MEANS THAT THE STATE MUST
AFFORD THE INDIGENT A "'RECORD OF SUFFICIENT COMPLETENESS' TO PERMIT
PROPER CONSIDERATION OF (HIS) CLAIMS."  ID., AT 499 (QUOTING COPPEDGE
V. UNITED STATES, 369 U.S. 438, 446 (1962). 

A "RECORD OF SUFFICIENT COMPLETENESS" DOES NOT TRANSLATE
AUTOMATICALLY INTO A COMPLETE VERBATIM TRANSCRIPT.  WE SAID IN GRIFFIN
THAT A STATE "MAY FIND OTHER MEANS (THAN PROVIDING STENOGRAPHIC
TRANSCRIPTS FOR) AFFORDING ADEQUATE AND EFFECTIVE APPELLATE REVIEW TO
INDIGENT DEFENDANTS."  351 U.S.,AT 20.  WE CONSIDERED THIS MORE FULLY
IN DRAPER V. WASHINGTON, SUPRA, AT 495-496: 

"ALTERNATIVE METHODS OF REPORTING TRIAL PROCEEDINGS ARE PERMISSIBLE
IF THEY PLACE BEFORE THE APPELLATE COURT AN EQUIVALENT REPORT OF THE
EVENTS AT TRIAL FROM WHICH THE APPELLANT'S CONTENTIONS ARISE.  A
STATEMENT OF FACTS AGREED TO BY BOTH SIDES, A FULL NARRATIVE STATEMENT
BASED PERHAPS ON THE TRIAL JUDGE'S MINUTES TAKEN DURING TRIAL OR ON THE
COURT REPORTER'S UNTRANSCRIBED NOTES, OR A BYSTANDER'S BILL OF
EXCEPTIONS MIGHT ALL BE ADEQUATE SUBSTITUTES, EQUALLY AS GOOD AS A
TRANSCRIPT.  MOREOVER, PART OR ALL OF THE STENOGRAPHIC TRANSCRIPT IN
GOOD AS A TRANSCRIPT.  MOREOVER, PART OR ALL OF THE STENOGRAPHIC
TRANSCRIPT IN CERTAIN CASES WILL NOT BE GERMANE TO CONSIDERATION OF THE
APPEAL, AND A STATE WILL NOT BE REQUIRED TO EXPEND ITS FUNDS
UNNECESSARILY IN SUCH CIRCUMSTANCES.  IF, FOR INSTANCE, THE POINTS
URGED RELATE ONLY TO THE VALIDITY OF THE STATUTE OR THE SUFFICIENCY OF
THE INDICTMENT UPON WHICH CONVICTION WAS PREDICATED, THE TRANSCRIPT IS
IRRELEVANT AND NEED NOT BE PROVIDED.  IF THE ASSIGNMENTS OF ERROR GO
ONLY TO RULINGS ON EVIDENCE OR TO ITS SUFFICIENCY, THE TRANSCRIPT
PROVIDED MIGHT WELL BE LIMITED TO THE PORTIONS RELEVANT TO SUCH
ISSUES.  EVEN AS TO THIS KIND OF ISSUE, HOWEVER, IT IS UNNECESSARY TO
AFFORD A RECORD OF THE PROCEEDINGS PERTAINING TO AN ALLEGED FAILURE OF
PROOF ON A POINT WHICH IS IRRELEVANT AS A MATTER OF LAW TO THE ELEMENTS
OF THE CRIME FOR WHICH THE DEFENDANT HAS BEEN CONVICTED.  IN THE
EXAMPLES GIVEN, THE FACT THAT AN APPELLANT WITH FUNDS MAY CHOOSE TO
WASTE HIS MONEY BY UNNECESSARILY INCLUDING IN THE RECORD ALL OF THE
TRANSCRIPT DOES NOT MEAN THAT THE STATE MUST WASTE ITS FUNDS BY
PROVIDING WHAT IS UNNECESSARY FOR ADEQUATE APPELLATE REVIEW." 

WE EMPHASIZE, HOWEVER, THAT THE STATE MUST PROVIDE A FULL VERBATIM
RECORD WHERE THAT IS NECESSARY TO ASSURE THE INDIGENT AS EFFECTIVE AN
APPEAL AS WOULD BE AVAILABLE TO THE DEFENDANT WITH RESOURCES TO PAY HIS
OWN WAY.  MOREOVER, WHERE THE GROUNDS OF APPEAL, AS IN THIS CASE, MAKE
OUT A COLORABLE NEED FOR A COMPLETE TRANSCRIPT, THE BURDEN IS ON THE
STATE TO SHOW THAT ONLY A PORTION OF THE TRANSCRIPT OR AN "ALTERNATIVE"
WILL SUFFICE FOR AN EFFECTIVE APPEAL ON THOSE GROUNDS.  THIS RATIONAL
UNDERLIES OUR STATEMENT IN DRAPER, SUPRA, AT 498, THAT: 

"(THE STATE COULD HAVE ENDEAVORED TO SHOW THAT A NARRATIVE STATEMENT
OR ONLY A PORTION OF THE TRANSCRIPT WOULD BE ADEQUATE AND AVAILABLE FOR
APPELLATE CONSIDERATION OF PETITIONERS'  CONTENTIONS.  THE TRIAL JUDGE
WOULD HAVE COMPLIED WITH . . . THE CONSTITUTIONAL MANDATE . . . IN
LIMITING THE GRANT ACCORDINGLY ON THE BASIS OF SUCH A SHOWING BY THE
STATE."  /5/

II 

THE DISTINCTION BETWEEN FELONY AND NONFELONY OFFENSES DRAWN BY RULE
607(B) CAN NO MORE SATISFY THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT
THAN COULD THE LIKE DISTINCTION IN THE WISCONSIN LAW, HELD INVALID IN
GROPPI V. WISCONSIN, 400 U.S. 505 (1971), WHICH PERMITTED A CHANGE OF
VENUE IN FELONY BUT NOT IN MISDEMEANOR TRIALS.  THE SIZE OF THE
DEFENDANT'S POCKETBOOK BEARS NO MORE RELATIONSHIP TO HIS GUILT OR
INNOCENCE IN A NONFELONY THAN IN A FELONY CASE.  THE DISTINCTION DRAWN
BY RULE 607(B) IS, THEREFORE, AN "UNREASONED DISTINCTION" PROSCRIBED BY
THE FOURTEENTH AMENDMENT.  RINALDI V. YEAGER, SUPRA, AT 310.  THAT
CONCLUSION FOLLOWS DIRECTLY FROM OUR DECISION IN WILLIAMS V. OKLAHOMA
CITY, 395 U.S. 458, 459 (1969), REJECTING THE ARGUMENT "'THAT AN
INDIGENT PERSON, CONVICTED FOR A VIOLATION OF A CITY ORDINANCE, QUASI
CRIMINAL IN NATURE AND OFTEN REFERRED TO AS A PETTY OFFENSE, IS (NOT)
ENTITLED TO A CASE-MADE OR TRANSCRIPT AT CITY EXPENSE IN ORDER TO
PERFECT AN APPEAL . . . . '"  /6/

     III 

THE CITY OF CHICAGO URGES ANOTHER DISTINCTION TO SET THIS CASE APART
FROM GRIFFIN AND ITS PROGENY.  THE CITY NOTES THAT THE DEFENDANTS IN
ALL THE TRANSCRIPT CASES PREVIOUSLY DECIDED BY THIS COURT WERE
SENTENCED TO SOME TERM OF CONFINEMENT.  WHERE THE ACCUSED, AS HERE, IS
NOT SUBJECT TO IMPRISONMENT, BUT ONLY A FINE, THE CITY SUGGESTS THAT
HIS INTEREST IN A TRANSCRIPT IS OUTWEIGHED BY THE STATE'S FISCAL AND
OTHER INTERESTS IN NOT BURDENING THE APPELLATE PROCESS.  THIS ARGUMENT
MISCONCEIVES THE PRINCIPLE OF GRIFFIN NO LESS THAN DOES THE LINE THAT
RULE 607(B) EXPRESSLY DRAWS.  GRIFFIN DOES NOT REPRESENT A BALANCE
BETWEEN THE NEEDS OF THE ACCUSED AND THE INTERESTS OF SOCIETY; ITS
PRINCIPLE IS A FLAT PROHIBITION AGAINST PRICING INDIGENT DEFENDANTS OUT
OF AS EFFECTIVE AN APPEAL AS WOULD BE AVAILABLE TO OTHERS ABLE TO PAY
THEIR OWN WAY.  THE INVIDIOUSNESS OF THE DISCRIMINATION THAT EXISTS
WHEN CRIMINAL PROCEDURES ARE MADE AVAILABLE ONLY TO THOSE WHO CAN PAY
IS NOT ERASED BY ANY DIFFERENCES IN THE SENTENCES THAT MAY BE IMPOSED. 
THE STATE'S FISCAL INTEREST IS, THEREFORE, IRRELEVANT.  CF. SHAPIRO V.
THOMPSON, 394 U.S. 618, 633 (1969). 

WE ADD THAT EVEN APPROACHING THE PROBLEM IN THE TERMS THE CITY
SUGGESTS HARDLY YIELDS THE ANSWER THE PETTY OFFENSES OF THE KIND
INVOLVED HERE ARE NOT TO BE MINIMIZED.  A FINE MAY BEAR AS HEAVILY ON
AN INDIGENT ACCUSED AS FORCED CONFINEMENT.  THE COLLATERAL CONSEQUENCES
OF CONVICTION MAY BE EVEN MORE SERIOUS, AS WHEN (AS WAS APPARENTLY A
POSSIBILITY IN THIS CASE) THE IMPECUNIOUS MEDICAL STUDENT FINDS HIMSELF
BARRED FROM THE PRACTICE OF MEDICINE BECAUSE OF A CONVICTION HE IS
UNABLE TO APPEAL FOR LACK OF FUNDS.  MOREOVER, THE STATE'S LONG-TERM
INTEREST WOULD NOT APPEAR TO LIE IN MAKING ACCESS TO APPELLATE
PROCESSES FROM EVEN ITS MOST INFERIOR COURTS DEPEND UPON THE
DEFENDANT'S ABILITY TO PAY.  IT HAS BEEN APTLY SAID: 

"(FEW CITIZENS EVER HAVE CONTACT WITH THE HIGHER COURTS.  IN THE
MAIN, IT IS THE POLICE AND THE LOWER COURT BENCH AND BAR THAT CONVEY
THE ESSENCE OF OUR DEMOCRACY TO THE PEOPLE.  "JUSTICE, IF IT CAN BE
MEASURED, MUST BE MEASURED BY THE EXPERIENCE THE AVERAGE CITIZEN HAS
WITH THE POLICE AND THE LOWER COURTS."  /7/ 

ARBITRARY DENIAL OF APPELLATE REVIEW OF PROCEEDINGS OF THE STATE'S
LOWEST TRIAL COURTS MAY SAVE THE STATE SOME DOLLARS AND CENTS, BUT ONLY
AT THE SUBSTANTIAL RISK OF GENERATING FRUSTRATION AND HOSTILITY TOWARD
ITS COURTS AMONG THE MOST NUMEROUS CONSUMERS OF JUSTICE. 

        IV 

WE CONCLUDE THAT APPELLANT CANNOT BE DENIED A "RECORD OF SUFFICIENT
COMPLETENESS" TO PERMIT PROPER CONSIDERATION OF HIS CLAIMS.  WE REPEAT
THAT THIS DOES NOT MEAN THAT HE IS AUTOMATICALLY ENTITLED TO A FULL
VERBATIM TRANSCRIPT.  HE URGES THAT HIS CLAIMS OF INSUFFICIENCY OF THE
EVIDENCE AND PREJUDICIAL PROSECUTORIAL MISCONDUCT CANNOT BE FAIRLY
JUDGED WITHOUT RECOURSE TO THE TRIAL RECORD.  /8/  DRAPER SUGGESTS THAT
THESE ARE INDEED THE KINDS OF CLAIMS THAT REQUIRE PROVISION OF A
VERBATIM TRANSCRIPT.  /9/  SEE ALSO GARDNER V. CALIFORNIA, 393 U.S. 367
(1969).  IN DRAPER, HOWEVER, THE STATE OF WASHINGTON DID NOT UNDERTAKE
TO CARRY ITS BURDEN OF SHOWING THAT SOMETHING LESS THAN A COMPLETE
TRANSCRIPT WOULD SUFFICE.  HERE THE CITY OF CHICAGO URGES THAT THE
ILLINOIS PROCEDURES FOR A "SETTLED" OR "AGREED" STATEMENT MAY PROVIDE
ADEQUATE ALTERNATIVES.  THE CITY ALSO ARGUES THAT EVEN IF A VERBATIM
RECORD IS REQUIRED, LESS THAN A COMPLETE TRANSCRIPT MAY ASSURE FAIR
APPELLATE REVIEW.  WE CANNOT ADDRESS THESE QUESTIONS, SINCE THE RECORD
BEFORE US CONTAINS ONLY THE PARTIES' CONFLICTING ASSERTIONS; SO FAR AS
APPEARS, NEITHER OF THE ILLINOIS COURTS BELOW REGARDED RESOLUTION OF
THE DISPUTE TO BE RELEVANT IN LIGHT OF RULE 607(B).  THAT THIS WAS THE
VIEW OF THE CIRCUIT COURT IS CLEAR.  THE ORDER OF THE SUPREME COURT,
HOWEVER, MAY NOT HAVE BEEN BASED ON THE RULE, BUT ON THE GROUND THAT
APPELLANT HAD THE BURDEN OF SHOWING THAT THE ALTERNATIVES OF A
"SETTLED" OR "AGREED" STATEMENT WERE INADEQUATE.  WE HOLD TODAY THAT A
DENIAL OF APPELLANT'S MOTION, EITHER ON THE BASIS OF THE RULE, OR, IN
THE CONTEXT OF HIS GROUNDS OF APPEAL, ON THE BASIS THAT HE DID NOT MEET
THE BURDEN OF SHOWING THE INADEQUACY OF THE ALTERNATIVES, WOULD
CONSTITUTE CONSTITUTIONAL ERROR. 

WE ARE INFORMED THAT APPELLANT'S APPEAL FROM HIS CONVICTION HAS BEEN
DOCKETED IN THE ILLINOIS SUPREME COURT AND THAT ITS DISPOSITION HAS
BEEN DEFERRED PENDING OUR DECISION OF THIS CASE.  WE THEREFORE VACATE
THE ORDER OF THE ILLINOIS SUPREME COURT AND REMAND THE CASE TO THAT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  A COURT REPORTER WAS PROVIDED AT APPELLANT'S TRIAL PURSUANT TO
THE STATE COURT REPORTERS ACT, ILL. REV. STAT., C. 37, SEC. 651 ET SEQ.
(1969).  IT WAS ESTIMATED THAT THE COST OF PREPARING A TRANSCRIPT WOULD
BE $300.  THE RECORD REFERS IN SOME PLACES TO A TWO-DAY TRIAL AND IN
OTHER PLACES TO A THREE-DAY TRIAL. 

UNDER ILLINOIS LAW AT THE TIME OF APPELLANT'S CONVICTIONS ON APPEAL
LAY AS OF RIGHT EITHER TO THE ILLINOIS SUPREME COURT OR TO THE ILLINOIS
APPELLATE COURT, DEPENDING UPON THE NATURE OF THE CASE OR THE
CONTENTIONS RAISED.  SEE CONSTITUTION OF ILLINOIS 1870, ART. 6, SECS.
5, 7.  IF A CASE WAS ERRONEOUSLY APPEALED TO THE WRONG COURT, IT WAS
TRANSFERRED TO THE PROPER COURT WITHOUT ANY LOSS OF RIGHTS.  ILLINOIS
SUPREME COURT RULE 365, ILL. REV. STAT., C. 110A, SEC. 365 (1969).  OF
COURSE, WHETHER AN APPEAL IS DISCRETIONARY OR AS OF RIGHT DOES NOT
AFFECT AN INDIGENT'S RIGHT TO A TRANSCRIPT, SINCE "(INDIGENTS MUST . .
. HAVE THE SAME OPPORTUNITIES TO INVOKE THE DISCRETION OF THE"  COURT
AS THOSE WHO CAN AFFORD THE COSTS.  BURNS V. OHIO, 360 U.S. 252, 258
(1959). 

/2/  THE FULL TEXT OF RULE 607(B), ILL. REV. STAT., C. 110A, SEC.
607(B) (1969), WAS AS FOLLOWS:     "REPORT OF PROCEEDINGS.  IN ANY CASE
IN WHICH THE DEFENDANT IS CONVICTED OF A FELONY, HE MAY PETITION THE
COURT IN WHICH HE WAS CONVICTED FOR A REPORT OF PROCEEDINGS AT HIS
TRIAL.  IF THE CONDUCT ON WHICH THE FELONY CASE IS BASED WAS ALSO THE
BASIS FOR A JUVENILE PROCEEDING WHICH WAS DISMISSED SO THE FELONY CASE
COULD PROCEED, THE DEFENDANT MAY INCLUDE IN HIS PETITION A REQUEST FOR
A REPORT OF PROCEEDINGS IN THE JUVENILE PROCEEDING.  THE PETITION SHALL
BE VERIFIED BY THE PETITIONER AND SHALL STATE FACTS SHOWING THAT HE WAS
AT THE TIME OF HIS CONVICTION, AND IS AT THE TIME OF FILING THE
PETITION, WITHOUT FINANCIAL MEANS TO PAY FOR THE REPORT.  IF THE JUDGE
WHO IMPOSED SENTENCE, OR IN HIS ABSENCE ANY OTHER JUDGE OF THE COURT,
FINDS THAT THE DEFENDANT IS WITHOUT FINANCIAL MEANS WITH WHICH TO
OBTAIN THE REPORT OF PROCEEDINGS AT HIS TRIAL, HE SHALL ORDER THE COURT
REPORTER TO TRANSCRIBE AN ORIGINAL AND COPY OF HIS NOTES.  THE ORIGINAL
OF THE REPORT SHALL BE CERTIFIED BY THE REPORTED AND FILED WITH THE
CLERK OF THE TRIAL COURT AS PROVIDED BELOW, AND THE COPY SHALL BE
CERTIFIED BY THE REPORTER AND DELIVERED TO THE DEFENDANT WITHOUT
CHARGE.  THE REPORTER WHO PREPARES A REPORT OF PROCEEDINGS PURSUANT TO
AN ORDER UNDER THIS RULE SHALL BE PAID THE SAME FEE FOR PREPARING THE
TRANSCRIPT AS IS PROVIDED BY LAW FOR THE COMPENSATION OF REPORTERS FOR
PREPARING TRANSCRIPTS IN OTHER CASES." 

FOLLOWING GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956), THE ILLINOIS
LEGISLATURE AUTHORIZED FREE TRANSCRIPTS FOR INDIGENTS "(UPON IMPOSITION
OF ANY SENTENCE IN A CRIMINAL CASE."  SEE ILL. ANN. STAT., C. 38, SEC.
121-13(A) AND COMMITTEE COMMENTS APPENDED THERETO (1964).  HOWEVER,
UNDER AUTHORITY ALLOWING THE STATE SUPREME COURT, IN EFFECT, TO AMEND
CODE PROVISIONS GOVERNING CRIMINAL APPEALS, ID., SEC. 121-1, THE COURT
PROMULGATED RULE 607(B) AUTHORIZING TRANSCRIPTS AT STATE EXPENSE ONLY
FOR INDIGENTS CONVICTED OF A FELONY.  THE RULE WAS AMENDED EFFECTIVE
JULY 1, 1971, TO APPLY TO "ANY CASE IN WHICH THE DEFENDANT IS CONVICTED
OF AN OFFENSE PUNISHABLE BY IMPRISONMENT FOR MORE THAN SIX MONTHS." 
1971 ILLINOIS LEGISLATIVE SERVICE, NO., 5, P. 1703. 

/3/  THESE RULES, ILL. REV. STAT., C. 110A, SEC. 323(C) AND (D)
(1969), PROVIDED: 

"(C) PROCEDURE IF NO VERBATIM TRANSCRIPT IS AVAILABLE.  IF NO
VERBATIM TRANSCRIPT OF THE EVIDENCE OR PROCEEDINGS IS OBTAINABLE THE
APPELLANT MAY PREPARE A PROPOSED REPORT OF PROCEEDINGS FROM THE BEST
AVAILABLE SOURCES, INCLUDING RECOLLECTION.  IT SHALL BE SERVED WITHIN
SEVEN DAYS AFTER THE NOTICE OF APPEAL IS FILED.  WITHIN 21 DAYS AFTER
THE NOTICE OF APPEAL IS FILED, ANY OTHER PARTY MAY SERVE PROPOSED
AMENDMENTS OR HIS PROPOSED REPORT OF PROCEEDINGS.  WITHIN SEVEN DAYS
THEREAFTER, THE APPELLANT SHALL, UPON NOTICE, PRESENT THE TRIAL COURT
FOR SETTLEMENT AND APPROVAL.  THE COURT, HOLDING HEARINGS IF NECESSARY,
SHALL PROMPTLY SETTLE, CERTIFY, AND ORDER FILED AN ACCURATE REPORT OF
PROCEEDINGS. 

"(D) AGREED STATEMENT OF FACTS.  THE PARTIES BY WRITTEN STIPULATION
MAY AGREE UPON A STATEMENT OF THE FACTS MATERIAL TO THE CONTROVERSY AND
FILE IT IN LIEU OF AND WITHIN THE TIME FOR FILING A REPORT OF
PROCEEDINGS." 

THESE RULES WERE ALSO AMENDED EFFECTIVE JULY 1, 1971, BUT NOT IN
WAYS MATERIAL TO THIS CASE.  SEE 1971 ILLINOIS LEGISLATIVE SERVICE, NO.
5, P.1690.  DESPITE THE PROVISION LIMITING USE OF A "SETTLED"
STATEMENT TO CASES WHERE NO VERBATIM TRANSCRIPT IS "AVAILABLE" OR
"OBTAINABLE," THE PROCEDURE OF SUBSECTION (C) EVIDENTLY IS PERMISSIBLE
EVEN THOUGH THE COURT REPORTER'S NOTES ARE AVAILABLE FOR
TRANSCRIPTION.  SEE TONE, NEW SUPREME COURT RULE ON EXPEDITIOUS AND
INEXPENSIVE APPEALS, 53 ILL.B.J. 18, 20 (1964). 

/4/  OUR DECISIONS ON THE QUESTION OF FREE TRANSCRIPTS FOR INDIGENTS
INCLUDE:  WADE V. WILSON, 396 U.S. 282 (1970); WILLIAMS V. OKLAHOMA
CITY, 395 U.S. 458 (1969); GARDNER V. CALIFORNIA, 393 U.S. 367 (1969);
ROBERTS V. LAVALLEE, 389 U.S. 40 (1967); LONG V. DISTRICT COURT OF
IOWA, 385 U.S. 192 (1966); DRAPER V. WASHINGTON, 372 U.S. 487 (1963);
LANE V. BROWN, 372 U.S. 477 (1963); COPPEDGE V. UNITED STATES, 369 U.S.
438 (1962); AND ESKRIDGE V. WASHINGTON PRISON BD., 357 U.S. 214
(1958). 

/5/  SEE ALSO GARDNER V. CALIFORNIA, 393 U.S.,AT 370 (NOTING NO
SUGGESTION MADE OF AN ADEQUATE SUBSTITUTE FOR A FULL TRANSCRIPT);
ESKRIDGE V. WASHINGTON PRISON BD., 357 U.S., AT 215 (NOTING STATE'S
FAILURE TO SHOW AVAILABILITY OF TRIAL NOTES). 

/6/  IT IS TRUE, AS THE CITY OF CHICAGO ARGUES, THAT IN WILLIAMS THE
DEFENDANT WAS EFFECTIVELY DENIED ANY RIGHT OF APPEAL, WHEREAS HERE A
TRANSCRIPT WAS NOT A CONDITION PRECEDENT FOR APPEAL.  THE
CONSTITUTIONAL INFIRMITY IN RULE 607(B) IS NOT THE LESS FOR THAT
REASON.  THE INDIGENT DEFENDANT MUST BE AFFORDED AS EFFECTIVE AN APPEAL
AS THE DEFENDANT WHO CAN PAY. 

/7/  MURPHY, THE ROLE OF THE POLICE IN OUR MODERN SOCIETY, 26 THE
RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 292, 293
(1971). 

/8/  IT IS NOT CLEAR WHETHER APPELLANT SEEKS A FULL TRANSCRIPT. 
WHAT HE APPLIED FOR AND WAS DENIED IN THE CIRCUIT COURT WAS ONLY "SUCH
PORTION OF THE TRIAL TRANSCRIPT AS THE PARTIES MAY DESIGNATE." 
MOREOVER, HE STATED IN HIS BRIEF TO THE STATE SUPREME COURT THAT "IT IS
EXPECTED THAT CERTAIN STIPULATIONS CONCERNING VOIR DIRE WILL BE
FORTHCOMING.  THE REST OF THE TRANSCRIPT UP TO THE END OF CLOSING
ARGUMENTS IS REQUIRED." 

/9/  IN DRAPER, 372 U.S.,AT 496-497, WE REMARKED: 

"PETITIONERS' CONTENTIONS IN THE PRESENT CASE WERE SUCH THAT THEY
COULD NOT BE ADEQUATELY CONSIDERED BY THE STATE SUPREME COURT ON THE
LIMITED RECORD BEFORE IT.  THE ARGUMENTS ABOUT IMPROPER FOUNDATION FOR
INTRODUCTION OF THE GUN AND COAT, FOR EXAMPLE, COULD NOT BE DETERMINED
ON THEIR MERITS-- AS THEY WOULD HAVE BEEN ON A NONINDIGENT'S APPEAL--
WITHOUT RECOURSE, AT A MINIMUM, TO THE PORTIONS OF THE RECORD OF THE
TRIAL PROCEEDINGS RELATING TO THIS POINT.  AGAIN, THE ASSERTED FAILURE
OF PROOF WITH RESPECT TO IDENTIFICATION OF THE DEFENDANTS AND THE
ALLEGATIONS OF PERJURY AND INCONSISTENT TESTIMONY WERE SIMILARLY
IMPOSSIBLE TO PASS UPON WITHOUT DIRECT STUDY OF THE RELEVANT PORTIONS
OF THE TRIAL RECORD.  FINALLY, THE ALLEGED FAILURE OF THE EVIDENCE TO
SUSTAIN THE CONVICTION COULD NOT BE DETERMINED ON THE INADEQUATE
INFORMATION BEFORE THE WASHINGTON SUPREME COURT." 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN THE COURT'S OPINION BUT ADD THESE OBSERVATIONS CHIEFLY TO
UNDERSCORE THAT THERE ARE ALTERNATIVES IN THE MAJORITY OF CASES TO A
FULL VERBATIM TRANSCRIPT OF AN ENTIRE TRIAL.  THE REFERENCES TO WHAT
WAS SAID IN DRAPER V. WASHINGTON, 372 U.S. 487 (1963), EMPHASIZE THE
DUTY OF COUNSEL AS OFFICERS OF THE COURT TO SEEK ONLY WHAT IS NEEDED. 
IN MOST CASES, UNLIKE THIS ONE, THE ESSENTIAL FACTS ARE NOT IN DISPUTE
ON APPEAL, OR IF THERE IS DISPUTE IT CENTERS ON CERTAIN LIMITED ASPECTS
OF THE CASE.  ONE NEED ONLY EXAMINE BRIEFS IN APPEALS TO SEE THAT AT
THE APPELLATE STAGE THE AREA OF CONFLICT ON THE FACTS IS GENERALLY
NARROW. 

EVERY BUSY COURT IS PLAGUE WITH EXCESSIVE DEMANDS FOR FREE
TRANSCRIPTS IN CRIMINAL CASES.  /1/  MY OWN EXPERIENCE OVER THE YEARS
INDICATES THAT PRIVATELY EMPLOYED COUNSEL ARE USUALLY SPARTAN IN THEIR
DEMANDS BECAUSE THE CLIENT MUST PAY HIS OWN COSTS.  UNFORTUNATELY ONE
CONSEQUENCE OF THE ADVENT OF THE CRIMINAL JUSTICE ACT AND STATE
COUNTERPARTS IS THAT WHEN COSTS ARE PAID BY THE PUBLIC, COUNSEL ARE
SOMETIMES PROFLIGATE IN THEIR DEMANDS, OR YIELD THEIR PROFESSIONAL
JUDGMENT TO THE CLIENT'S DESIRES.  THIS IS MORE THAN A MATTER OF
COSTS.  AN AFFLUENT SOCIETY OUGHT NOT BE MISERLY IN SUPPORT OF JUSTICE,
FOR ECONOMY IS NOT AN OBJECTIVE OF THE SYSTEM; THE REAL VICE IS THE
RESULTING DELAY IN SECURING TRANSCRIPTS AND HENCE DETERMINING THE
APPEAL.  WHEN EXCESSIVE DEMANDS ARE MADE BY AN APPELLANT IN ORDER TO
POSTPONE THE DAY WHEN THE APPEAL IS FINALLY DETERMINED, BECAUSE, FOR
EXAMPLE, HE IS AT LIBERTY PENDING APPEAL, /2/  A LAWYER WHO COOPERATES
IS GUILTY OF UNPROFESSIONAL CONDUCT. 

I QUITE AGREE WITH MR. JUSTICE BRENNAN THAT "A FULL VERBATIM RECORD
WHERE THAT IS NECESSARY . . . " SHOULD BE PROVIDED BUT JUDGES AND
LAWYERS HAVE A DUTY TO AVOID ABUSES THAT PROMOTE DELAYS. 

/1/  IT IS NOT THE INCREASE IN NUMBER OF REQUESTED TRANSCRIPTS ALONE
WHICH HAS RESULTED IN DELAY.  THE DELAY HAS BEEN CAUSED BY THE
COMBINATION OF THIS INCREASE WITH THE FAILURE OF THE SYSTEM TO INCREASE
ITS ABILITY TO PRODUCE TRANSCRIPTS.  CF. COMMITTEE OF SECTION OF
CRIMINAL LAW OF AMERICAN BAR ASSOCIATION, APPELLATE DELAY IN CRIMINAL
CASES:  A REPORT, 2 AM.CRIM.L.Q. 150 (1964).  IN THE TYPICAL SITUATION
IN FEDERAL COURTS THE REPORTER IS AN INDEPENDENT CONTRACTOR SELECTED BY
THE GOVERNMENT TO MAKE A VERBATIM RECORD OF THE ENTIRE PROCEEDINGS.  IN
SOME STATES THE COURT REPORTER IS AN EMPLOYEE.  IN MOST SYSTEMS THE
REPORTER INDEPENDENTLY CONTRACTS WITH THE PARTIES TO TRANSCRIBE THE
RECORD AT A CERTAIN FEE PER PAGE.  ALTHOUGH COURTS HAVE SUPERVISORY
POWER OVER THE REPORTER, ADMINISTRATION OF THE TRANSCRIBING OF THE
NOTES IS OFTEN LEFT LARGELY IF NOT COMPLETELY TO THE DISCRETION OF THE
REPORTER.  SEE GENERALLY ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS, THE COURT REPORTING SYSTEM IN THE UNITED STATES DISTRICT COURTS
7-47 (1960).  WITH THE ENORMOUS INCREASE IN CRIMINAL CASES, REPORTERS
ARE OFTEN UNABLE TO KEEP UP WITH THE DEMAND FOR TRANSCRIPTS AND AT THE
SAME TIME CONTINUE WITH REGULAR REPORTING.  SOME REPORTERS FAIL TO MAKE
ADEQUATE ARRANGEMENTS FOR STENOGRAPHERS TO TRANSCRIBE THEIR NOTES,
WHICH CAN BE DONE BY SOMEONE OTHER THAN THE REPORTER.  THE FAILURE OF
COURTS TO GIVE ADEQUATE SUPERVISION TO THE WORK OF COURT REPORTERS
ACCOUNTS FOR MUCH OF THE DELAY IN PROCESSING APPEALS.  COURTS HAVE AN
OBLIGATION TO EXERCISE SUFFICIENT OVERSIGHT OF REPORTERS TO ENSURE THAT
PROCEEDINGS ARE TRANSCRIBED WITH DISPATCH. 

/2/  SEE AMERICAN BAR ASSOCIATION, PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, CRIMINAL APPEALS SEC. 2.3 (APPROVED DRAFT 1970), WHICH
CONCLUDES THAT "(AUTOMATIC RELEASE PENDING APPEAL" IS ONE OF THE
"UNACCEPTABLE INDUCEMENTS TO TAKING APPEALS."  SEE ALSO ID., SEC. 2.5. 

MR. JUSTICE BLACKMUN, CONCURRING. 

I CONCUR IN THE OPINION AND JUDGMENT OF THE COURT.  I MERELY ADD AN
OBSERVATION:  THE RECORD INDICATES THAT IN 1969, WHEN THE CHARGES WERE
BROUGHT AGAINST THE APPELLANT AND HE ASSERTED HIS INDIGENCY, HE WAS A
THIRD-YEAR STUDENT IN NEW YORK UNIVERSITY MEDICAL SCHOOL.  PERHAPS, IN
THE INTERVENING TWO YEARS, THE APPELLANT HAS COMPLETED HIS PROFESSIONAL
TRAINING.  PERHAPS BY NOW HE IS EVEN LICENSED AND IS EARNING HIS
LIVING.  IF SO, THESE WILL BE FACTORS TO BE CONSIDERED BY THE ILLINOIS
COURTS ON REMAND. 

HENRY F. FIELD ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE THOMAS B. MCNEILL AND ROBERT A. BURT. 

RICHARD L. CURRY ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE WILLIAM R. QUINLAN AND EDMUND HATFIELD. 

VINCENT BENTIVENGA AND PAUL P. BIEBEL, JR., FILED A BRIEF FOR THE
STATE ATTORNEY OF COOK COUNTY, ILLINOIS, AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :





VICTORY CARRIERS, INC. V. LAW, 404 U.S. 202 


       VICTORY CARRIERS, INC., ET AL. V. LAW

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

       FIFTH CIRCUIT

        NO. 70-54.  ARGUED OCTOBER 18-19, 1971-- DECIDED DECEMBER

           13, 1971 


STATE LAW AND NOT FEDER Z MARITIME LAW HELD TO GOVERN SUIT BY
RESPONDENT LONGSHOREMAN WHO WAS INJURED BY ALLEGED DEFECT IN HIS
STEVEDORE EMPLOYER'S PIER-BASED FORKLIFT TRUCK WHICH RESPONDENT WAS
OPERATING ON THE DOCK TO TRANSFER CARGO TO A POINT ALONGSIDE A SEAS
SHIPPING CO. V. SIERACKI, 328 U.S. 85, AND GUTIERREZ V. WATERMAN S.S.
CORP., 373 U.S. 206, DISTINGUISHED.  PP. 204-216 

432 F. 2D 376, REVERSED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED, POST, P.
216. 

MR.JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED HERE IS WHETHER STATE LAW OR FEDERAL MARITIME
LAW GOVERNS THE SUIT OF A LONGSHOREMAN INJURED ON A PIER WHILE DRIVING
A FORKLIFT TRUCK WHICH WAS MOVING CARGO THAT WOULD ULTIMATELY BE LOADED
ABOARD SHIP. 

THE FACTS ARE UNDISPUTED.  WHEN THE ACCIDENT HAPPENED, RESPONDENT
BILL LAW, A LONGSHOREMAN EMPLOYED BY GULF STEVEDORE CORP. IN MOBILE,
ALABAMA, WAS ON THE PIER DRIVING A FORKLIFT LOADED WITH CARGO DESTINED
FOR THE S.S. SAGAMORE HILL, A VESSEL OWNED BY PETITIONER VICTORY
CARRIERS, INC., WHICH WAS TIED UP AT THE PIER.  LAW HAD PICKED UP THE
LOAD ON THE DOCK AND WAS TRANSFERRING IT TO A POINT ALONGSIDE THE
VESSEL WHERE IT WAS TO BE SUBSEQUENTLY HOISTED ABOARD BY THE SHIP'S OWN
GEAR.  THE FORKLIFT WAS OWNED AND UNDER THE DIRECTION OF HIS STEVEDORE
EMPLOYER.  AS LAW RETURNED TOWARD THE PICKUP POINT, THE OVERHEAD
PROTECTION RACK OF THE FORKLIFT CAME LOOSE AND FELL ON HIM.  HE
SUBSEQUENTLY BROUGHT AN ACTION IN A FEDERAL DISTRICT COURT AGAINST THE
SHIP AND VICTORY CARRIERS, INC., CLAIMING THAT THE UNSEAWORTHINESS OF
THE VESSEL AND THE NEGLIGENCE OF VICTORY HAD CAUSED HIS INJURIES.  HIS
CLAIM INVOKED BOTH THE DIVERSITY JURISDICTION OF THE DISTRICT COURT
UNDER 28 U.S.C. 1332 AND ITS ADMIRALTY AND MARITIME JURISDICTION UNDER
28 U.S.C. 1333.  VICTORY FILED A THIRD-PARTY COMPLAINT AGAINST GULF FOR
INDEMNITY IN THE EVENT VICTORY WAS HELD LIABLE TO LAW.  THE
UNSEAWORTHINESS CLAIM BECAME THE CRITICAL ISSUE.  /1/  ON CROSS MOTIONS
FOR SUMMARY JUDGMENT, THE DISTRICT COURT GAVE JUDGMENT FOR PETITIONERS
ON THE GROUND THAT LAW WAS NOT ENGAGED IN LOADING THE VESSEL AND THAT
THE DOCTRINE OF UNSEAWORTHINESS DID NOT EXTEND TO HIM.  THE COURT OF
APPEALS REVERSED.  RELYING ON SEA SHIPPING CO. V. SIERACKI, 328 U.S. 85
(1946), AND GUTIERREZ V. WATERMAN S.S. CORP., 373 U.S. 206 (1963), IT
HELD THAT THE FUNDAMENTAL QUESTION WAS WHETHER LAW AT THE TIME WAS
ENGAGED IN LOADING THE SAGAMORE HILL AND THAT SINCE HE WAS SO ENGAGED,
HE SHOULD BE ENTITLED TO PROVE HIS ALLEGATIONS OF UNSEAWORTHINESS AT A
TRIAL.  WE GRANTED CERTIORARI AND NOW REVERSE THE JUDGMENT OF THE COURT
OF APPEALS. 

ARTICLE III, SEC. CL. 1, OF THE CONSTITUTION OF THE UNITED STATES
EXTENDS THE FEDERAL JUDICIAL POWER "TO ALL CASES OF ADMIRALTY AND
MARITIME JURISDICTION."  CONGRESS HAS IMPLEMENTED THAT PROVISION BY 28
U.S.C. 1333 WHICH NOW PROVIDES THAT THE DISTRICT COURTS SHALL "HAVE
ORIGINAL JURISDICTION, EXCLUSIVE OFTHE COURTS OF THE STATES, OF . . .
(ANY CIVIL CASE OF ADMIRALTY OR MARITIME JURISDICTION, SAVING TO
SUITORS IN ALL CASES ALL OTHER REMEDIES TO WHICH THEY ARE OTHERWISE
ENTITLED."  UNDER THE SAVING-TO-SUITORS CLAUSE OF SEC. 1333, THE
PLAINTIFF WAS ENTITLED TO ASSERT HIS CLAIMS UNDER THE DIVERSITY
JURISDICTION OF THE DISTRICT COURT, AS WELL AS UNDER SEC. 1333 ITSELF,
CF. POPE & TALBOT, INC. V. HAWN, 346 U.S. 406, 410-411 (1953), BUT
UNDER EITHER SECTION THE CLAIM THAT A SHIP OR ITS GEAR WAS UNSEAWORTHY
WOULD BE ROOTED IN FEDERAL MARITIME LAW, NOT THE LAW OF THE STATE OF
ALABAMA.  ID., AT 409.  WHETHER FEDERAL MARITIME LAW GOVERNED THIS
ACCIDENT IN TURN DEPENDS ON WHETHER THIS IS A CASE WITHIN THE ADMIRALTY
AND MARITIME JURISDICTION CONFERRED ON THE DISTRICT COURTS BY THE
CONSTITUTION AND THE JURISDICTIONAL STATUTES.  MORE PRECISELY, THE
THRESHOLD ISSUE IS WHETHER MARITIME LAW GOVERNS ACCIDENTS SUFFERED BY A
LONGSHOREMAN WHO IS INJURED ON THE DOCK BY ALLEGEDLY DEFECTIVE
EQUIPMENT OWNED AND OPERATED BY HIS STEVEDORE EMPLOYER.  WE HOLD THAT
UNDER THE CONTROLLING PRECEDENTS, FEDERAL MARITIME LAW DOES NOT GOVERN
THIS ACCIDENT.  NOR, IN THE ABSENCE OF CONGRESSIONAL GUIDANCE, ARE WE
NOW INCLINED TO DEPART FROM PRIOR LAW AND EXTEND THE REACH OF THE
FEDERAL LAW TO PIER-SIDE ACCIDENTS CAUSED BY A STEVEDORE'S PIER-BASED
EQUIPMENT. 

THE HISTORIC VIEW OF THIS COURT HAS BEEN THAT THE MARITIME TORT
JURISDICTION OF THE FEDERAL COURTS IS DETERMINED BY THE LOCALITY OF THE
ACCIDENT AND THAT MARITIME LAW GOVERNS ONLY THOSE TORTS OCCURRING ON
THE NAVIGABLE WATERS OF THE UNITED STATES.  MARITIME CONTRACTS ARE
DIFFERENTLY VIEWED, BUT AS MR. JUSTICE STORY REMARKED LONG AGO: 

"IN REGARD TO TORTS I HAVE ALWAYS UNDERSTOOD, THAT THE JURISDICTION
OF THE ADMIRALTY IS EXCLUSIVELY DEPENDENT UPON THE LOCALITY OF THE
ACT.  THE ADMIRALTY HAS NOT, AND NEVER (I BELIEVE) DELIBERATELY CLAIMED
TO HAVE ANY JURISDICTION OVER TORTS, EXCEPT SUCH AS ARE MARITIME TORTS,
THAT IS, SUCH AS ARE COMMITTED ON THE HIGH SEAS, OR ON WATERS WITHIN
THE EBB AND FLOW OF THE TIDE."  THOMAS V. LANE, 23 F.CAS.  957, 960
(NO. 13,902) (CC ME. 1813).  THE VIEW HAS BEEN CONSTANTLY REITERATED. 
/2/ 

    "THE GENERAL DOCTRINE THAT IN CONTRACT MATTERS ADMIRALTY

  JURISDICTION DEPENDS UPON THE NATURE OF THE TRANSACTION AND IN

  TORT MATTERS UPON THE LOCALITY, HAS BEEN SO FREQUENTLY ASSERTED

  BY THIS COURT THAT IT MUST NOW BE TREATED AS SETTLED."  GRANT

  SMITH-PORTER SHIP CO. V. RHODE, 257 U.S. 469 (1922). 

THE MARITIME LAW WAS THOUGHT TO REACH "(EVERY SPECIES OF TORT,
HOWEVER OCCURRING, AND WHETHER ON BOARD A VESSEL OR NOT, IF UPON THE
HIGH SEAS OR NAVIGABLE WATERS . . . . "  ATLANTIC TRANSPORT CO. V.
IMBROVEK, 234 U.S. 52, 60 (1914).  BUT, ACCIDENTS ON LAND WERE NOT
WITHIN THE MARITIME JURISDICTION AS HISTORICALLY CONSTRUED BY THIS
COURT.  /3/  PIERS AND DOCKS WERE CONSISTENTLY DEEMED EXTENSIONS OF
LAND; /4/  INJURIES INFLICTED TO OR ON THEM WERE HELD NOT COMPENSABLE
UNDER THE MARITIME LAW.  THE PLYMOUTH, 3 WALL.  20, 36 (1866); EX PARTE
PHENIX INSURANCE CO., 118 U.S. 610, 618-619 (1886); JOHNSON V. CHICAGO
& PACIFIC ELEVATOR CO., 119 U.S. 388, 397 (1886); CLEVELAND TERMINAL &
VALLEY R. CO. V. CLEVELAND S.S. CO., 208 U.S. 316, 320 (1908).  THE
GANG-PLANK HAS SERVED AS A ROUGH DIVIDING LINE BETWEEN THE STATE AND
MARITIME REGIMES. 

IN DEFENSE OF THIS BOUNDARY AND THE EXCLUSIVE JURISDICTION OF THE
MARITIME LAW, THE COURT TWICE REJECTED CONGRESSIONAL EFFORTS TO APPLY
STATE WORKMEN'S COMPENSATION STATUTES TO SHIPBOARD INJURIES SUFFERED BY
MARITIME WORKERS AND LONGSHOREMEN.  /5/  ACCEPTING THESE DECISIONS,
CONGRESS PASSED THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT
/6/  IN 1927, PROVIDING A SYSTEM OF COMPENSATION FOR LONGSHOREMEN
INJURED ON NAVIGABLE WATERS BUT ANTICIPATING THAT DOCKSIDE ACCIDENTS
WOULD REMAIN UNDER THE UMBRELLA OF STATE LAW AND STATE WORKMEN'S
COMPENSATION SYSTEMS.  NACIREMA OPERATING CO. V. JOHNSON, 396 U.S. 212,
217-219 (1969); SOUTH CHICAGO COAL & DOCK CO. V. BASSETT, 309 U.S. 251,
256-257 (1940).  THE RELATIVE ROLES OF STATE AND FEDERAL LAW
NEVERTHELESS REMAINED SOMEWHAT CONFUSED ON THE SEAWARD SIDE OF THE
PIER.  /7/ BUT SHOREWARD, ABSENT LEGISLATION, THE LINE HELD FAST.  THE
COURT REFUSED TO PERMIT RECOVERY IN ADMIRALTY EVEN WHERE A SHIP OR ITS
GEAR, THROUGH COLLISION OR OTHERWISE, CAUSED DAMAGE TO PERSONS ASHORE
OR TO BRIDGES, DOCKS, OR OTHER SHORE-BASED PROPERTY.  THE PLYMOUTH,
SUPRA; CLEVELAND TERMINAL & VALLEY R. CO.V. CLEVELAND S.S. CO., SUPRA;
THE TROY, 208 U.S. 321 (1908); MARTIN V. WEST, 222 U.S. 191 (1911). 

CONGRESS WAS DISSATISFIED WITH THESE DECISIONS AND PASSED THE
ADMIRALTY EXTENTION ACT OF 1948 SPECIFICALLY TO OVERRULE OR CIRCUMVENT
THIS LINE OF CASES.  /8/  THE LAW AS ENACTED PROVIDED THAT "(THE
ADMIRALTY AND MARITIME JURISDICTION OF THE UNITED STATES SHALL EXTEND
TO AND INCLUDE ALL CASES OF DAMAGE OR INJURY, TO PERSON OR PROPERTY,
CAUSED BY A VESSEL ON NAVIGABLE WATER, NOTWITHSTANDING THAT SUCH DAMAGE
OR INJURY BE DONE OR CONSUMMATED ON LAND."  62 STAT. 496, 46 U.S.C.
740.  THE STATUTE SURVIVED CONSTITUTIONAL ATTACK IN THE LOWER FEDERAL
COURTS /9/  AND WAS APPLIED WITHOUT QUESTION BY THIS COURT IN
GUTIERREZ, SUPRA, TO PROVIDE COMPENSATION FOR A LONGSHOREMAN INJURED ON
A DOCK BY DEFECTIVE CARGO CONTAINERS BEING UNLOADED FROM A SHIP LOCATED
ON NAVIGABLE WATERS.  NO CASE IN THIS COURT HAS SUSTAINED THE
APPLICATION OF MARITIME LAW TO THE KIND OF ACCIDENT THAT OCCURRED IN
THIS CASE.  STATE INDUSTRIAL COMM'N V. NORDENHOLT CORP., 259 U.S. 263
(1922), HAS NOT BEEN OVERRULED.  THERE, THE COURT HELD THAT
COMPENSATION FOR A LONGSHOREMAN INJURED WHEN HE SLIPPED ON A DOCK WHILE
STACKING BAGS OF CEMENT THAT HAD BEEN UNLOADED FROM A SHIP WAS GOVERNED
BY LOCAL LAW, NOT FEDERAL MARITIME LAW. 

IT IS ARGUED, HOWEVER, THAT IF A LONGSHOREMAN MAY RECOVER FOR
UNSEAWORTHINESS IF INJURED ON A SHIP IN THE COURSE OF THE UNLOADING
PROCESS, SEAS SHIPPING CO. V. SIERACKI, SUPRA, AND IF HE HAS AN
UNSEAWORTHINESS CLAIM FOR INJURIES SUSTAINED ON THE PIER AND CAUSED BY
THE SHIP'S UNLOADING GEAR, GUTIERREZ, SUPRA, HE IS ALSO ENTITLED TO SUE
IN ADMIRALTY WHEN HE IS INJURED ON THE DOCK BY HIS OWN EMPLOYER'S
EQUIPMENT AT THE TIME HE IS ENGAGED IN THE SERVICE OF A SHIP LOCATED ON
NAVIGABLE WATERS.  SIERACKI, SUPRA, HOWEVER, DID NOT CALL INTO QUESTION
THE EXTENT OF FEDERAL ADMIRALTY AND MARITIME JURISDICTION SINCE THE
ACCIDENT THERE OCCURRED ON NAVIGABLE WATERS.  /10/  AND IN GUTIERREZ,
SUPRA, FEDERAL ADMIRALTY JURISDICTION WAS CLEARLY PRESENT SINCE THE
ADMIRALTY EXTENSION ACT ON ITS FACE REACHED THE INJURY THERE INVOLVED. 
THE DECISION IN GUTIERREZ TURNED, NOT ON THE "FUNCTION" THE STEVEDORE
WAS PERFORMING AT THE TIME OF HIS INJURY, BUT, RATHER, UPON THE FACT
THAT HIS INJURY WAS CAUSED BY AN APPURTENANCE OF A SHIP, THE DEFECTIVE
CARGO CONTAINERS, WHICH THE COURT HELD TO BE AN "INJURY, TO PERSON . .
. CAUSED BY A VESSEL ON NAVIGABLE WATER" WHICH WAS CONSUMMATED ASHORE
UNDER 46 U.S.C. 740.  THE COURT HAS NEVER APPROVED AN UNSEAWORTHINESS
RECOVERY FOR AN INJURY SUSTAINED ON LAND MERELY BECAUSE THE INJURED
LONGSHOREMAN WAS ENGAGED IN THE PROCESS OF "LOADING" OR "UNLOADING." 
/11/  NACIREMA OPERATING CO. V. JOHNSON, 396 U.S. AT 223, A CASE
DECIDED SEVERAL YEARS AFTER GUTIERREZ, MAKES THIS QUITE CLEAR: 

     "THERE IS MUCH TO BE SAID FOR UNIFORM TREATMENT OF
LONGSHOREMEN

  INJURED WHILE LOADING OR UNLOADING A SHIP.  BUT EVEN CONSTRUING

  THE EXTENSION ACT TO AMEND THE LONGSHOREMEN'S ACT WOULD NOT

  EFFECT THIS RESULT, SINCE LONGSHOREMEN INJURED ON A PIER BY

  PIER-BASED EQUIPMENT WOULD STILL REMAIN OUTSIDE THE ACT." 

SEE ALSO RODRIGUE V. AETNA CASUALTY & SURETY CO., 395 U.S. 352, 360
(1969). 

WE ARE NOT INCLINED AT THIS JUNCTURE TO DISTURB THE EXISTING
PRECEDENTS AND TO EXTEND SHOREWARD THE REACH OF THE MARITIME LAW
FURTHER THAN CONGRESS HAS APPROVED.  WE ARE DEALING HERE WITH THE
INTERSECTION OF FEDERAL AND STATE LAW.  AS THE LAW NOW STANDS, STATE
LAW HAS TRADITIONALLY GOVERNED ACCIDENTS LIKE THIS ONE.  TO AFFORD
RESPONDENT A MARITIME CAUSE OF ACTION WOULD THUS INTRUDE ON AN AREA
THAT HAS HERETOFORE BEEN RESERVED FOR STATE LAW, WOULD RAISE DIFFICULT
QUESTIONS CONCERNING THE EXTENT TO WHICH STATE LAW WOULD BE DISPLACED
OR PRE-EMPTED, AND WOULD FURNISH OPPORTUNITY FOR CIRCUMVENTING STATE
WORKMEN'S COMPENSATION STATUTES.  IN THESE CIRCUMSTANCES, WE SHOULD
PROCEED WITH CAUTION IN CONSTRUING CONSTITUTIONAL AND STATUTORY
PROVISIONS DEALING WITH THE JURISDICTION OF THE FEDERAL COURTS.  AS THE
COURT DECLARED IN HEALY V. RATTA, 292 U.S. 263, 270 (1934), "THE POWER
RESERVED TO THE STATES, UNDER THE CONSTITUTION, TO PROVIDE FOR THE
DETERMINATION OF CONTROVERSIES IN THEIR COURTS MAY BE RESTRICTED ONLY
BY THE ACTION OF CONGRESS IN CONFORMITY TO THE JUDICIARY SECTIONS OF
THE CONSTITUTION . . . DUE REGARD FOR THE RIGHTFUL INDEPENDENCE OF
STATE GOVERNMENTS, WHICH SHOULD ACTUATE FEDERAL COURTS, REQUIRES THAT
THEY SCRUPULOUSLY CONFINE THEIR OWN JURISDICTION TO THE PRECISE LIMITS
WHICH (A FEDERAL) STATUTE HAS DEFINED."  SEE ALSO ROMERO V. INT'L
TERMINAL OPERATING CO., 358 U.S. 354, 379-380, AND 408 (BRENNAN, J.,
DISSENTING AND CONCURRING) (1959). 

THAT LONGSHOREMEN INJURED ON THE PIER IN THE COURSE OF LOADING OR
UNLOADING A VESSEL ARE LEGALLY DISTINGUISHED FROM LONGSHOREMEN
PERFORMING SIMILAR SERVICES ON THE SHIP IS NEITHER A RECENT DEVELOPMENT
NOR PARTICULARLY PARADOXICAL.  THE MARITIME LAW IS HONEYCOMBED WITH
DIFFERING TREATMENT FOR SEAMEN AND LONGSHOREMEN, ON AND OFF THE SHIP,
/12/  AND AFFIRMANCE OF THE COURT OF APPEALS WOULD NOT EQUALIZE THE
REMEDIES THAT BOTH THIS COURT AND CONGRESS HAVE RECOGNIZED ARE
AVAILABLE TO LONGSHOREMEN INJURED ON NAVIGABLE WATERS AND THOSE INJURED
ASHORE, WHETHER IN SERVICE OF A SHIP OR NOT.  /13/  IN PART, THIS
DIFFERENTIAL TREATMENT STEMS FROM THE GEOGRAPHICAL AND HISTORICAL
ACCIDENT THAT PERSONAL INJURIES ON LAND ARE COVERED, FOR THE MOST PART,
BY STATE SUBSTANTIVE LAW WHILE SUCH INJURIES ON NAVIGABLE WATER ARE
GENERALLY GOVERNED BY FEDERAL MARITIME LAW.  THESE TWO BODIES OF LAW DO
OVERLAP AND INTERPENETRATE IN SOME SITUATIONS, AND THE AMPHIBIOUS
NATURE OF THE LONGSHOREMAN'S OCCUPATION CREATES FREQUENT TAXONOMIC
PROBLEMS.  IN THE PRESENT CASE, HOWEVER, THE TYPICAL ELEMENTS OF A
MARITIME CAUSE OF ACTION ARE PARTICULARLY ATTENUATED:  RESPONDENT LAW
WAS NOT INJURED BY EQUIPMENT THAT WAS PART OF THE SHIP'S USUAL GEAR OR
THAT WAS STORED ON BOARD, THE EQUIPMENT THAT INJURED HIM WAS IN NO WAY
ATTACHED TO THE SHIP, THE FORKLIFT WAS NOT UNDER THE CONTROL OF THE
SHIP OR ITS CREW, AND THE ACCIDENT DID NOT OCCUR ABOARD SHIP OR ON THE
GANGPLANK.  AFFIRMANCE OF THE DECISION BELOW WOULD RAISE A HOST OF NEW
PROBLEMS AS TO THE STANDARDS FOR AND LIMITATIONS ON THE APPLICABILITY
OF MARITIME LAW TO ACCIDENTS ON LAND.  /14/  AT LEAST IN THE ABSENCE OF
EXPLICIT CONGRESSIONAL AUTHORIZATION, WE SHALL NOT EXTEND THE HISTORIC
BOUNDARIES OF THE MARITIME LAW.     WITHOUT NECESSARILY DISAGREEING
WITH THE PROPOSITION THAT THE HAZARDS OF THE LONGSHOREMAN'S OCCUPATION
MAKE HIM ESPECIALLY DESERVING OF A REMEDY DISPENSING WITH PROOF OF
FAULT, /15/  WE ARE CONSTRAINED TO NOTE THAT THE LONGSHOREMAN ALREADY
HAS A REMEDY UNDER STATE WORKMEN'S COMPENSATION LAWS THAT DOES NOT
DEPEND UPON PROVING DERELICTIONS ON THE PART OF HIS EMPLOYER.  RECOVERY
WITHOUT PROVING NEGLIGENCE IS NOT THE ISSUE HERE; NOR IS IT THE
EQUITIES OF THE INJURED LONGSHOREMAN'S POSITION AS AGAINST THOSE OF THE
SHIPOWNER WHO HAS HAD AND EXERCISES NO CONTROL WHATSOEVER OVER THE USE
OF THE STEVEDORE'S EQUIPMENT ON THE DOCK.  WHAT IS AT ISSUE IS THE
AMOUNT OF THE RECOVERY, NOT AGAINST A SHIPOWNER, BUT AGAINST THE
STEVEDORE EMPLOYER.  AS THIS CASE ILLUSTRATES, THE SHIPOWNER'S
LIABILITY FOR UNSEAWORTHINESS WOULD MERELY BE SHIFTED, WITH ATTENDANT
TRANSACTION COSTS, TO THE STEVEDORE BY WAY OF A THIRD-PARTY ACTION FOR
INDEMNITY.  RYAN STEVEDORING CO. V. PAN-ATLANTIC S.S. CORP., 350 U.S.
124 (1956).  THE STATE'S OWN ARRANGEMENTS FOR COMPENSATING INDUSTRIAL
ACCIDENTS WOULD BE EFFECTIVELY CIRCUMVENTED. 

PERHAPS SUCH LAWS PROVIDE INADEQUATE BENEFITS, BUT WE ARE POORLY
POSITIONED TO CONCLUDE THAT THEY DO OR FOR THAT REASON TO GIVE SPECIAL
REMEDIES TO LONGSHOREMEN WHEN OTHER EMPLOYEES OPERATING FORKLIFTS FOR
OTHER EMPLOYERS IN PERHAPS EQUALLY HAZARDOUS CIRCUMSTANCES ARE LEFT TO
THE MERCIES OF STATE LAW.  CLAIMS LIKE THESE ARE BEST PRESENTED IN THE
LEGISLATIVE FORUM, NOT HERE. 

THIS IS PARTICULARLY TRUE SINCE EXTENDING THE CONSTITUTIONAL
BOUNDARIES OF THE MARITIME LAW WOULD NOT REQUIRE CONGRESS TO MAKE AN
EQUIVALENT EXTENSION OF THE JURISDICTION OF THE FEDERAL COURTS SITTING
IN ADMIRALTY.  CONGRESS MIGHT WELL PREFER NOT TO EXTEND THE
JURISDICTION OF THE FEDERAL COURTS.  ON THE OTHER HAND, IF DENYING
FEDERAL REMEDIES TO LONGSHOREMEN INJURED ON LAND IS INTOLERABLE,
CONGRESS HAS AMPLE POWER UNDER ARTS. I AND III OF THE CONSTITUTION TO
ENACT A SUITABLE SOLUTION.  /16/

              REVERSED. 

/1/  THE DISTRICT COURT AND THE COURT OF APPEALS DEALT ONLY WITH THE
UNSEAWORTHINESS CLAIM; THE DISTRICT COURT DID NOT PASS ON THE QUESTION
OF WHETHER OR NOT THE FORKLIFT WAS IN FACT DEFECTIVE.  432 F.2D 376,
378 N. 2 (CA5 1970). 

/2/  WARING V. CLARKE, 5 HOW.  441, 463-464 (1847); NEW JERSEY STEAM
NAVIGATION CO. V. MERCHANTS' BANK, 6 HOW.  344, 394 (1848); THE
PROPELLER COMMERCE, 1 BLACK 574, 579 (1862); THE PLYMOUTH, 3 WALL.  20,
33 (1866); THE ROCK ISLAND BRIDGE, 6 WALL.  213, 215 (1867); THE
BELFAST, 7 WALL.  624, 637 (1869); EX PARTE EASTON, 95 U.S. 68, 72
(1877); LEATHERS V. BLESSING, 105 U.S. 626, 630 (1882); EX PARTE PHENIX
INSURANCE CO., 118 U.S. 610, 618 (1886); JOHNSON V. CHICAGO & PACIFIC
ELEVATOR CO., 119 U.S. 388, 397 (1886); PANAMA R. CO. V. NAPIER
SHIPPING CO., 166 U.S. 280, 285 (1897); THE BLACKHEATH, 195 U.S. 361,
367 (1904); CLEVELAND TERMINAL & VALLEY R. CO.V. CLEVELAND S.S. CO.,
208 U.S. 316, 319 (1908); MARTIN V. WEST, 222 U.S. 191, 197 (1911);
ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52, 59-60 (1914); GRANT
SMITH-PORTER SHIP CO. V. ROHDE, 257 U.S. 469, 476 (1922); T. SMITH &
SON V. TAYLOR, 276 U.S. 179, 181 (1928); O'DONNEL V. GREAT LAKES DREDGE
& DOCK CO., 318 U.S.36, 41 (1943); POPE & TALBOT, INC. V. HAWN, 346
U.S. 406, 409 (1953); KERMAREC V. COMPAGNIE GENERALE TRANSATLANTIQUE,
358 U.S. 314, 318 N. 7 (1960); RODRIGUE V. AETNA CASUALTY & SURETY CO.,
395 U.S. 352, 360-361 (1969); NACIREMA OPERATING CO. V. JOHNSON, 396
U.S. 212, 214-215 (1969); THOMAS V. LANE, 23 F.CAS.  957, 960 (NO.
13,902) (CCME.  1813) (STORY, J.); DELOVIO V. BOIT, 7 F.CAS.  418, 420
(NO. 3,776) (CC MASS. 1815) (STORY, J.); LAKE SHORE & M.S.R. CO.V. THE
NEIL COCHRAN, 14 F.CAS.  949, 950 (NO.7,996) (ND OHIO 1872); THE
OTTAWA, 18 F.CAS.  906, 907 (NO. 10,616) ED MICH. 1872); HOLMES V. O. &
C. R. CO., 5 F. 75, 77 (ORE.  188O); THE ARKANSAS, 17 F. 383, 384 (SD
IOWA 1883); THE F.&P.M. NO. 2, 33 F. 511, 513 (ED WIS.1888); THE H. S.
PICKANDS, 42 F. 239, 240 (ED MICH. 1890); HERMANN V. PORT BLAKELY MILL
CO., 69 F. 646, 647 (ND CAL. 1895); THE STRABO, 90 F. 110, 113 (EDNY
1898); CHAPMAN V. CITY OF GROSSE POINTE FARMS, 385 F.2D 962, 963 (CA6
1967); SCOTT V. EASTERN AIR LINES, INC., 399 F.2D 14, 31 (CA3 1967)
(CONCURRING OPINION); FIREMAN'S FUND AMERICAN INSURANCE CO. V. BOSTON
HARBOR MARINA, INC., 406 F.2D 917, 919 (CA1 1969); PENN TANKER CO. V.
UNITED STATES, 409 F.2D 514, 518 (CA5 1969.  "THE JURISDICTION OF
COURTS OF ADMIRALTY, IN MATTERS OF CONTRACT, DEPENDS UPON THE NATURE
AND CHARACTER OF THE CONTRACT; BUT IN TORTS, IT DEPENDS ENTIRELY ON
LOCALITY."  PHILADELPHIA, WILMINGTON, & BALTIMORE R. CO. V.
PHILADELPHIA & HAVRE DE GRACE STEAM TOWBOAT CO., 23 HOW.  209, 215
(1860).  "IN (MARITIME) TORTS . . . JURISDICTION (OF FEDERAL ADMIRALTY
COURTS) DEPENDS SOLELY UPON THE PLACE WHERE THE TORT WAS COMMITTED,
WHICH MUST HAVE BEEN UPON THE HIGH SEAS OR OTHER NAVIGABLE WATERS." 
STATE INDUSTRIAL COMM'N V. NORDENHOLT CORP., 259 U.S. 263, 271 (1922). 

/3/  THE PLYMOUTH, SUPRA; THE TROY, 208 U.S. 321 (1908); PHOENIX
CONSTRUCTION CO.V. THE STEAMER POUGHKEEPSIE, 212 U.S. 558 (1908); T.
SMITH & SON V. TAYLOR, SUPRA; RODRIGUE V. AETNA CASUALTY & SURETY CO.,
SUPRA, AT 360; HASTINGS V. MANN, 340 F.2D 910 (CA4), CERT. DENIED, 380
U.S. 963 (1965).  "WHEN AN EMPLOYEE, WORKING ON BOARD A VESSEL IN
NAVIGABLE WATERS, SUSTAINS PERSONAL INJURIES THERE, AND SEEKS DAMAGES
FROM THE EMPLOYER, THE APPLICABLE LEGAL PRINCIPLES ARE VERY DIFFERENT
FROM THOSE WHICH WOULD CONTROL IF HE HAD BEEN INJURED ON LAND WHILE
UNLOADING THE VESSEL.  IN THE FORMER SITUATION THE LIABILITY OF
EMPLOYER ( ) MUST BE DETERMINED UNDER THE MARITIME LAW; IN THE LATTER,
NO GENERAL MARITIME RULE PRESCRIBES THE LIABILITY, AND THE LOCAL LAW
HAS ALWAYS BEEN APPLIED."  STATE INDUSTRIAL COMM'N V. NORDENHOLT CORP.,
SUPRA, AT 272-273. 

/4/  NACIREMA OPERATING CO. V. JOHNSON, SUPRA, AT 214-215; SWANSON
V. MARRA BROS., INC., 328 U.S. 1, 6 (1946); MINNIE V. PORT HURON
TERMINAL CO., 295 U.S. 647, 648 (1935); T. SMITH & SON V. TAYLOR,
SUPRA, AT 182; STATE INDUSTRIAL COMM'N V. NORDENHOLT CORP., SUPRA, AT
275; 1 E. BENEDICT, THE LAW OF AMERICAN ADMIRALTY SECS. 28, 29 (6TH ED.
1940); G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY SECS. 6-46, 7-17
(1957); G. ROBINSON, HANDBOOK OF ADMIRALTY LAW IN THE UNITED STATES
SEC. 11 (1939). 

/5/  KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149 (1920);
WASHINGTON V. W. C. DAWSON & CO., 264 U.S. 219; (924).  THESE
CONGRESSIONAL ATTEMPTS WERE SPARKED BY AN EARLIER SUPREME COURT
DECISION, SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205 (1917), WHICH
HAD HELD UNCONSTITUTIONAL A NEW YORK WORKMEN'S COMPENSATION LAW AS
APPLIED TO A STEVEDORE INJURED ON THE GANGPLANK OF A SHIP. 

/6/  44 STAT. 1424, 33 U.S.C. 801-950.  THE ACT'S COVERAGE IS
LIMITED TO THOSE INJURIES AND DEATHS "OCCURRING UPON THE NAVIGABLE
WATERS OF THE UNITED STATES (INCLUDING ANY DRY DOCK)."  33 U.S.C.
903(A). 

/7/  THIS CONFUSION MAY BE TRACED TO THE COURT'S MODIFYING THE
DOCTRINE OF SOUTHERN PACIFIC CO. V. JENSEN, SUPRA, BY PRESERVING
CERTAIN STATE REMEDIES FOR ACCIDENTS AND DEATHS OCCURRING ON NAVIGABLE
WATERS.  SEE WESTERN FUEL CO. V. GARCIA, 257 U.S. 233 (1921); GRANT
SMITH-PORTER SHIP CO. V. ROHDE, SUPRA; PARKER V. MOTOR BOAT SALES,
INC., 314 U.S. 244 (1941); DAVIS V. DEPT. OF LABOR AND INDUSTRIES, 317
U.S. 249 (1942); CALBECK V. TRAVELERS INSURANCE CO., 370 U.S. 114
(1962).  ALL OF THESE CASES OF OVERLAPPING STATE-FEDERAL JURISDICTION
HAVE OCCURRED ON THE SEAWARD SIDE OF THE JENSEN LINE, HOWEVER.  THE
COURT EARLY UPHELD THE POWER OF STATES TO PROVIDE WORKMEN'S
COMPENSATION TO LONGSHOREMEN INJURED BY ACCIDENTS OCCURRING ON THE
DOCK, UNDER THE THEORY THAT SINCE THE PIER IS PART OF THE LAND,
APPLICATION OF STATE LAW HERE WOULD NOT CONFLICT WITH THE UNIFORM
FEDERAL MARITIME LAW APPLIED ON NAVIGABLE WATERS.  STATE INDUSTRIAL
COMM'N V. NORDENHOLT CORP., SUPRA.  IN NACIREMA OPERATING CO. V.
JOHNSON, SUPRA, THE COURT HELD THAT BY LIMITING COVERAGE UNDER SEC.
3(A) OF THE ACT, 33 U.S.C. 903(A), TO ACCIDENTS OCCURRING "UPON . . .
NAVIGABLE WATERS," CONGRESS HAD NOT INTENDED TO COVER ACCIDENTS THAT
OCCURRED ON PIERS PERMANENTLY AFFIXED TO THE SHORE:  "CALBECK MADE IT
CLEAR THAT CONGRESS INTENDED TO EXERCISE ITS FULL JURISDICTION SEAWARD
OF THE JENSEN LINE AND TO COVER ALL INJURIES ON NAVIGABLE WATERS,
WHETHER OR NOT STATE COMPENSATION WAS ALSO AVAILABLE IN PARTICULAR
SITUATIONS . . . BUT REMOVING UNCERTAINTIES AS TO THE ACT'S COVERAGE OF
INJURIES OCCURRING ON NAVIGABLE WATERS IS A FAR CRY FROM CONSTRUING THE
ACT TO REACH INJURIES ON LAND TRADITIONALLY WITHIN THE AMBIT OF STATE
COMPENSATION ACTS."  396 U.S.,AT 220-221. 

/8/  62 STAT. 496, 46 U.S.C. 740.  THE HOUSE REPORT ON THE ADMIRALTY
EXTENSION ACT STATED THAT THE ACT WAS BEING PASSED TO REMEDY THE
"INEQUITIES" OF CASES SUCH AS CLEVELAND TERMINAL & VALLEY R. CO.,
SUPRA; THE TROY, SUPRA; AND MARTIN V. WEST, SUPRA, WHICH HAD HELD THERE
WAS NO ADMIRALTY JURISDICTION TO PROVIDE A REMEDY FOR DAMAGE DONE BY
SHIPS ON NAVIGABLE WATER TO LAND STRUCTURES.  H.R. REP. NO. 1523, 80TH
CONG., 2D SESS., 2 (1948).  CONGRESS HAD ALSO PASSED THE JONES ACT, 41
STAT. 1007, 46 U.S.C. 688, PROVIDING A STATUTORY REMEDY FOR MEMBERS OF
A SHIP'S CREW INJURED IN THE COURSE OF THEIR EMPLOYMENT.  THE ACT
COVERED CREWMEN INJURED ASHORE AS WELL AS ABOARD AND WAS CONSIDERED BY
THIS COURT AN EXTENSION OF THE ANCIENT REMEDY OF MAINTENANCE AND CURE
WHICH ITSELF WAS A TRADITIONAL AND IMPORTANT EXCEPTION TO THE USUAL
RULE THAT MARITIME LAW DOES NOT PROVIDE REMEDIES FOR INJURIES ON LAND. 
O'DONNEL V. GREAT LAKES DREDGE & DOCK CO., SUPRA.  LONGSHOREMEN, OF
COURSE, ARE NOT COVERED BY THE JONES ACT. 

/9/  UNITED STATES V. MATSON NAV. CO., 201 F.2D 610, 614-616 (CA9
1953); AMERICAN BRIDGE CO. V. THE GLORIA O, 98 F.SUPP.71, 73-74 (EDNY
1951); FEMATT V. CITY OF LOS ANGELES, 196 F.SUPP.  89, 93 (SD CAL.
1961). 

/10/  IN SIERACKI, THE COURT CONCLUDED: 

"(FOR INJURIES INCURRED WHILE WORKING ON BOARD THE SHIP IN NAVIGABLE
WATERS THE STEVEDORE IS ENTITLED TO THE SEAMAN'S TRADITIONAL AND
STATUTORY PROTECTIONS, REGARDLESS OF THE FACT THAT HE IS EMPLOYED
IMMEDIATELY BY ANOTHER THAN THE OWNER.  FOR THESE PURPOSES HE IS, IN
SHORT, A SEAMAN BECAUSE HE IS DOING A SEAMAN'S WORK AND INCURRING A
SEAMAN'S HAZARDS."  328 U.S., AT 99 (FOOTNOTE OMITTED). 

/11/  IN GUTIERREZ, THE COURT CONCLUDED THAT "THINGS ABOUT A SHIP,
WHETHER THE HULL, THE DECKS, THE MACHINERY, THE TOOLS FURNISHED, THE
STOWAGE, OR THE CARGO CONTAINERS, MUST BE REASONABLY FIT FOR THE
PURPOSE FOR WHICH THEY ARE TO BE USED."  373 U.S. AT 213.  IN ALASKA
S.S. CO.V. PETTERSON, 347 U.S. 396 (1954), AFF'G 205 F.2D 478 (CA9
1953), AND ROGERS V. UNITED STATES LINES, 347 U.S. 984 (1954), REV'G
205 F.2D 57 (CA3 1954), THE COURT DECIDED WITHOUT OPINION THAT AN
UNSEAWORTHINESS RECOVERY WOULD BE POSSIBLE TO A LONGSHOREMAN INJURED
WHILE IN THE HOLD OF A SHIP BY DEFECTIVE APPARATUS ATTACHED TO THE
SHIP'S GEAR. 

/12/  THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT DOES
NOT COVER SEAMEN (WHO ARE DEFINED THERE AS "MASTERS) OR MEMBERS) OF A
CREW OF ANY VESSEL," 33 U.S.C. 903(A)(1)), AND THE COMPENSATION REMEDY
PROVIDED BY THE LONGSHOREMEN'S ACT IS A STEVEDORE'S EXCLUSIVE REMEDY
AGAINST HIS EMPLOYER FOR SHIPBOARD INJURIES.  33 U.S.C. 905. 
REPRESENTATIVES OF MARITIME EMPLOYEES SUCCESSFULLY OPPOSED THE EFFORTS
OF CONGRESS TO INCLUDE SEAMEN UNDER THE LONGSHOREMEN'S ACT, SEE
NOGUEIRA V. NEW YORK, NEW HAVEN & HARTFORD R. CO., 281 U.S. 128, 136
(1930); WARNER V. GOLTRA, 293 U.S. 155, 159-160 (1934), SINCE SEAMEN
PREFERRED TO REMAIN FREE TO PROCEED AGAINST THEIR EMPLOYER UNDER THE
JONES ACT, 41 STAT. 1007, 46 U.S.C. 688, AND UNDER SUITS FOR
UNSEAWORTHINESS AND/OR MAINTENANCE AND CURE.  THE LATTER REMEDY HAS
TRADITIONALLY BEEN AVAILABLE TO SEAMEN BUT NOT TO LONGSHOREMEN, WEISS
V. CENTRAL R. CO., 235 F.2D 309, 311 (CA2 1956), AND THE COURT HAS
STATED THAT THE REMEDIES OF AN EMPLOYEE COVERED BY THE LONGSHOREMEN'S
ACT AND THOSE OF A SEAMAN COVERED UNDER THE MARITIME DOCTRINE OF
MAINTENANCE AND CURE ARE MUTUALLY EXCLUSIVE.  NORTON V. WARNER CO., 321
U.S. 565, 570 (1944).  THE JONES ACT GIVES SEAMEN, AT THEIR ELECTION,
THE ELECTION, THE BENEFIT OF THE PROVISIONS OF THE FEDERAL EMPLOYERS'
LIABILITY ACT, 35 STAT.65, 45 U.S.C. 51 ET SEQ. LONGSHOREMEN NOW HAVE
NO SUCH ELECTION.  SWANSON V. MARRA BROS., INC., 328 U.S.,AT 7. 
ALTHOUGH LONGSHOREMEN MAY NOT OBTAIN MAINTENANCE AND CURE, THERE ARE
CERTAIN CIRCUMSTANCES UNDER WHICH THEY MAY RECOVER FOR INJURIES CAUSED
BY UNSEAWORTHINESS WHETHER THE ACCIDENT OCCURRED ON BOARD SHIP, SEAS
SHIPPING CO. V. SIERACKI, SUPRA, OR ON THE DOCK, GUTIERREZ V. WATERMAN
S.S. CORP., SUPRA. 

/13/  SEE, E.G., NACIREMA OPERATING CO. V. JOHNSON, 396 U.S.,AT 217
220. 

/14/  THE FIFTH CIRCUIT'S EXPANSIVE DEFINITION OF LOADING (432
F.2D,AT 384) WOULD BE DIFFICULT TO DELIMIT.  ALREADY, SUMMARY JUDGMENT
HAS BEEN DENIED THE SHIPOWNER WHERE A WAREHOUSEMAN SUED ON AN
UNSEAWORTHINESS THEORY AFTER HE HAD BEEN INJURED BY A POWER SHOVEL HE
WAS USING TO TRANSFER GRAIN FROM A RAILROAD CAR TO A WAREHOUSE WHERE IT
WOULD BE SUBSEQUENTLY TAKEN ON BOARD A SHIP.  OLVERA V. MICHALOS, 307
F.SUPP.  9 (SD TEX. 1968).  SUMMARY JUDGMENT HAS ALSO BEEN DENIED WHEN
A LONGSHOREMAN BROUGHT AN UNSEAWORTHINESS SUIT AFTER HE HAD BEEN
INJURED INSIDE A PIER SHED; THE "SQUEEZE LIFT" TRUCK HE WAS DRIVING
STRUCK AN UNIDENTIFIED OBJECT ON THE SHED FLOOR CAUSING THE STEERING
WHEEL TO SPIN AROUND AND SHATTER PLAINTIFF'S WRIST.  MCNEIL V. A/S
HAVTOR, 326 F.SUPP.  226 (ED PA. 1971).  THE ATTEMPT TO DEFINE THE
PROCESS OF "LOADING" FOR PURPOSES OF DETERMINING WHETHER A LONGSHOREMAN
INJURED ON SHORE CAN RECOVER ON AN UNSEAWORTHINESS CLAIM HAS PRODUCED
SUBSTANTIAL CONFUSION IN THE LOWER COURTS; THE CASES ARE IMPOSSIBLE TO
RATIONALIZE.  DENYING COMPENSATION:  FORKIN V. FURNESS WITHY & CO., 323
F.2D 638 (CA2 1963), MCKNIGHT V. N. M. PATERSON & SONS, 286 F.2D 250
(CA6 1960), CERT. DENIED, 368 U.S. 913 (1961); HENRY V. S.S. MOUNT
EVANS, 227 F.SUPP.  408 (MD. 1964); SYDNOR V. VILLAIN & FASSIO E
COMPANIA, 323 F.SUPP.  850 (MD. 1971).  AWARDING COMPENSATION OR
DENYING SUMMARY JUDGMENT FOR DEFENDANT:  SPANN V. LAURITZEN, 344 F.2D
204 (CA3), CERT. DENIED, 382 U.S. 938 (1965); CHAGOIS V. LYKES BROS.
S.S. CO., 432 F.2D 388 (CA5 1970); OLVERA V. MICHALOS, SUPRA; MCNEIL V.
A/S HAVTOR, SUPRA.  RELIANCE UPON THE GANGPLANK LINE AS THE PRESUMPTIVE
BOUNDARY OF ADMIRALTY JURISDICTION, EXCEPT FOR CASES IN WHICH A SHIP'S
APPURTENANCE CAUSES DAMAGE ASHORE, RECOGNIZES THE TRADITIONAL
LIMITATIONS OF ADMIRALTY JURISDICTION, SEE NN. 2 AND 3, SUPRA, AND
DECREASES THE ARBITRARINESS AND UNCERTAINTIES SURROUNDING AMORPHOUS
DEFINITIONS OF "LOADING."  SUCH UNCERTAINTIES MAY PREJUDICE BOTH E
LONGSHOREMAN AND THE EMPLOYER. 

/15/  A 1956 SURVEY, BASED ON 1954 DATA, CONCLUDED THAT THE
STEVEDORING OCCUPATION HAD A HIGHER INJURY FREQUENCY RATE THAN ANY
OTHER HIGH-HAZARD INDUSTRY STUDIED STUDIES.  NATIONAL ACADEMY OF
SCIENCES-NATIONAL RESEARCH COUNCIL, MARITIME CARGO TRANSPORTATION
CONFERENCE, LONGSHORE SAFETY SURVEY REPORT, LONGSHORE SAFETY SURVEY:  A
SURVEY OF OCCUPATIONAL HAZARDS IN THE STEVEDORE INDUSTRY 23 (1956). 
SEE ALSO U.S. DEPT. OF LABOR, BUREAU OF LABOR STATISTICS, HANDBOOK OF
LABOR STATISTICS 1971, P. 345, FOR A COMPARISON OF THE WORK-INJURY RATE
(BOTH BY SEVERITY AND FREQUENCY) IN THE MARINE CARGO HANDLING INDUSTRY
WITH THAT IN OTHER INDUSTRIES.  CF. NOTE, RISK DISTRIBUTION AND
SEAWORTHINESS, 75 YALE L.J. 1174 (1966). 

/16/  CF., E.G., THE PROPELLER GENESEE CHIEF V. FITZHUGH, 12 HOW. 
443, 457-458 (1852); RICHARDSON V. HARMON, 222 U.S. 96, 97 (1911);
PANAMA R. CO. V. JOHNSON, 264 U.S. 375, 385-388 (1924); DETROIT TRUST
CO. V. THE THOMAS BARLUM, 293 U.S. 21, 52 (1934); SWANSON V. MARRA
BROS., INC., SUPRA, AT 5; O'DONNELL V. GREAT LAKES DREDGE & DOCK CO.,
SUPRA, AT 40-41. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

GUTIERREZ V. WATERMAN S.S. CORP., 373 U.S. 206, INVOLVED AN INJURY
TO A LONGSHOREMAN WHILE HE WAS ON THE DOCK UNLOADING THE SHIP.  THE
INJURY WAS NOT INFLICTED BY A DEFECTIVE APPLIANCE OF THE SHIP.  HE
MERELY SLIPPED ON LOOSE BEANS SPILLED ON THE DOCK FROM DEFECTIVE CARGO
CONTAINERS BELONGING TO THE SHIP.  HERE THE LONGSHOREMAN WAS ENGAGED IN
A PHASE OF A LOADING OPERATION; HE WAS ON THE DOCK STACKING CARGO FOR
LOADING AND THE APPLIANCE CAUSING THE INJURY BELONGED TO THE STEVEDORE
COMPANY. 

THE COURT OF APPEALS PROPERLY CONCLUDED THAT THAT WORK WAS PART OF
THE LOADING PROCESS AND THAT THEREFORE THE LONGSHOREMAN WAS IN THE
SERVICE OF THE SHIP.  THAT GIVES PRAGMATIC, REALISTIC MEANING TO THE
CONCEPT OF LOADING AND AVOIDS THE NARROW, GRUDGING, HYPERTECHNICAL
DEFINITION. 

LOADING IS ACTIVITY THAT INVOLVES WORK ON THE SHIP AND ON THE DOCK. 
LONGSHOREMEN ARE BOTH SHIPSIDE WORKERS AND SHORESIDE WORKERS AND MOVE
BACK AND FORTH FROM DECK TO DOCK.  AT TIMES AN INDIVIDUAL WORKER MAY BE
USING THE SHIP'S APPLIANCES AND A MOMENT LATER THE STEVEDORE'S
APPLIANCES.  BUT THE WORK DOES NOT CHANGE IN CHARACTER.  FOR EXAMPLE,
ALTHOUGH PRIOR TO HIS INJURY LAW HAD NORMALLY BEEN INVOLVED IN LOADING
OR UNLOADING, HIS SPECIFIC ASSIGNMENTS VARIED.  ON SOME DAYS HE WAS
ASSIGNED TO DRIVE A FORKLIFT ON BOARD SHIP.  ON OTHERS, SUCH AS THE DAY
OF THE INJURY, HE SHUTTLED CARGO BETWEEN VARIOUS POINTS ON THE DOCK
DURING THE LOADING PROCESS.  RESPONDENT WAS SUBJECT TO ALL THE RISKS
AND HAZARDS OF LOADING THE SHIP; AND THE HUMANITARIAN POLICY OF THE
ADMIRALTY LAW HAS BEEN TO ALLOW THOSE WHO SO SERVICE THE SHIP TO
RECEIVE THE PROTECTIONS USUALLY AFFORDED THAT CLASS. 

EQUIPMENT NEED NOT BELONG TO THE SHIP TO BE AN APPURTENANCE OF THE
SHIP; AND IT MAY BE SUCH EVEN THOUGH IT BELONGS TO THE STEVEDORE.  WE
SO HELD IN ALASKA S.S. CO. V. PETTERSON, 347 U.S. 396, /1/  OVER THE
STRENUOUS DISSENT OF MR. JUSTICE BURTON, JOINED BY MR. JUSTICE
FRANKFURTER AND RM. JUSTICE JACKSON.  THE CRITICAL QUESTION IS WHETHER
THE INJURY OCCURRED DURING LOADING OR UNLOADING.  /2/  WE THERE ALLOWED
RECOVERY FOR INJURY TO A LONGSHOREMAN WHICH OCCURRED WHILE HE WAS
LOADING THE SHIP ON THE DECK AND WHICH WAS CAUSED BY A DEFECTIVE BLOCK
USED BY THE STEVEDORE COMPANY.  AND WE FOLLOWED THAT DECISION IN ROGERS
V. UNITED STATES LINES, 347 U.S. 984, THE SAME THREE JUSTICES
DISSENTING. 

I WOULD ADHERE TO OUR DECISIONS IN THE PETTERSON AND ROGERS CASES
AND AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  ACCORD:  SPANN V. LAURITZEN, 344 F.2D 204; CHAGOIS V. LYKES
BROS. S.S. CO., 432 F.2D 388; HUFF V. MATSON NAVIGATION CO., 338 F.2D
205; THORSON V. INLAND NAVIGATION CO., 270 F.2D 432; ACE TRACTOR &
EQUIPMENT CO. V. OLYMPIC S.S. CO., 227 F.2D 274. 

/2/  SEE THE APPENDIX TO THIS OPINION. 

        APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING 

THIS COURT'S DECISIONS HAVE RATHER CONSISTENTLY REFLECTED THE
PRINCIPLE THAT BECAUSE LOADING AND UNLOADING OF VESSELS ARE ABNORMALLY
DANGEROUS SUCH RISKS OUGHT TO BE PLACED INITIALLY UPON THE SHIPOWNERS
AND ULTIMATELY PASSED ON THROUGH HIGHER PRICES TO THE CUSTOMERS OF THE
SHIPPING INDUSTRY.  /1/  SEE INTERNATIONAL STEVEDORING CO. V. HAVERTY,
272 U.S. 50 (1926); ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52
(1914).  THE MOST WELL-KNOWN EXPLICATION OF THIS PRINCIPLE WAS ADVANCED
IN SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85, 93-96 (1946), WHICH HELD
THAT LONGSHOREMEN, AS WELL AS SEAMEN, WERE ENTITLED TO RECOVER UNDER TH
DOCTRINE OF UNSEAWORTHINESS FOR INJURIES SUSTAINED ABOARD SHIP: 

"THAT THE LIABILITY MAY NOT BE EITHER SO FOUNDED OR SO LIMITED WOULD
SEEM INDICATED BY THE STRESS THE CASES UNIFORMLY PLACE UPON ITS
RELATION, BOTH IN CHARACTER AND IN SCOPE, TO THE HAZARDS OF MARINE
SERVICE WHICH UNSEAWORTHINESS PLACES ON THE MEN WHO PERFORM IT.  THESE,
TOGETHER WITH THEIR HELPLESSNESS TO WARD OFF SUCH PERILS AND THE
HARSHNESS OF FORCING THEM TO SHOULDER ALONE THE RESULTING PERSONAL
DISABILITY AND LOSS, HAVE BEEN THOUGHT TO JUSTIFY AND TO REQUIRE
PUTTING THEIR BURDEN, IN SO FAR AS IT IS MEASURABLE IN MONEY, UPON THE
OWNER REGARDLESS OF HIS FAULT.  THOSE RISKS ARE AVOIDABLE BY
NEGLIGENCE.  AND BEYOND THIS HE IS IN POSITION, AS THE WORKER IS NOT,
TO DISTRIBUTE THE LOSS IN THE SHIPPING COMMUNITY WHICH RECEIVES THE
SERVICE AND SHOULD BEAR ITS COST. 

        .          .          .          . 

"ALL THE CONSIDERATIONS WHICH GAVE BIRTH TO THE LIABILITY AND HAVE
SHAPED ITS ABSOLUTE CHARACTER DICTATE THAT THE OWNER SHOULD NOT BE FREE
TO NULLIFY IT BY PARCELLING OUT HIS OPERATIONS TO INTERMEDIARY
EMPLOYERS WHOSE SOLE BUSINESS IS TO TAKE OVER PORTIONS OF THE SHIP'S
WORK OR BY OTHER DEVICES WHICH WOULD STRIP THE MEN PERFORMING ITS
SERVICE OF THEIR HISTORIC PROTECTION.  THE RISKS THEMSELVES ARISE FROM
AND ARE INCIDENT IN FACT TO THE SERVICE, NOT MERELY TO THE CONTRACT
PURSUANT TO WHICH IT IS DONE.  THE BRUNT OF LOSS CAST UPON THE WORKER
AND HIS DEPENDENTS IS THE SAME, AND IS AS INEVITABLE, WHETHER HIS PAY
COMES DIRECTLY FROM THE SHIPOWNER OR ONLY INDIRECTLY THROUGH ANOTHER
WITH WHOM HE ARRANGES TO HAVE IT DONE.  THE LATTER ORDINARILY HAS
NEITHER RIGHT NOR OPPORTUNITY TO DISCOVER OR REMOVE THE CAUSE OF THE
PERIL AND IT IS DOUBTFUL, THEREFORE, THAT HE OWES TO HIS EMPLOYEES,
WITH RESPECT TO THESE HAZARDS, THE EMPLOYER'S ORDINARY DUTY TO FURNISH
A SAFE PLACE TO WORK, UNLESS PERHAPS IN CASES WHERE THE PERILS ARE
OBVIOUS OR HIS OWN ACTION CREATES THEM.  IF NOT, NO SUCH OBLIGATION
EXISTS UNLESS IT RESTS UPON THE OWNER OF THE SHIP.  MOREOVER, HIS
ABILITY TO DISTRIBUTE THE LOSS OVER THE INDUSTRY IS NOT LESSENED BY THE
FACT THAT THE MEN WHO DO THE WORK ARE EMPLOYED AND FURNISHED BY
ANOTHER.  HISTORICALLY THE WORK OF LOADING AND UNLOADING IS THE WORK OF
THE SHIP'S SERVICE, PERFORMED UNTIL RECENT TIMES BY MEMBERS OF THE
CREW.  FLOREZ V. THE SCOTIA, 35 F. 916; THE GILBERT KNAPP, 37 F. 209,
210; THE SEGURANCA, 58 F. 908, 909.  THAT THE OWNER SEEKS TO HAVE IT
DONE WITH THE ADVANTAGES OF MORE MODERN DIVISIONS OF LABOR DOES NOT
MINIMIZE THE WORKER'S HAZARD AND SHOULD NOT NULLIFY HIS PROTECTION." 

ALTHOUGH SUBSEQUENT HOLDINGS SUSTAINING THE APPLICABILITY OF THE
DOCTRINE OF UNSEAWORTHINESS MIGHT ALTERNATIVELY HAVE BEEN GROUNDED IN
MORE MECHANICAL RULES, THE LANGUAGE OF THE CASES HAS INSTEAD BEEN THE
BROADER PRINCIPLE EXPLICATED IN SIERACKI.  FOR EXAMPLE, IN REED V. THE
YAKA, 373 U.S. 410, 414-415 (1963), HOLDING THAT A LONGSHOREMAN WAS NOT
DEPRIVED BY THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 44
STAT. 1424, 33 U.S.C. 901 ET SEQ., OF HIS UNSEAWORTHINESS REMEDY MERELY
BECAUSE THE SHIPOWNER HAPPENED ALSO TO BE HIS STEVEDORE-EMPLOYER, THE
COURT RELIED UPON THE POLICY EXPRESSED IN SIERACKI: 

"(WE POINTED OUT SEVERAL TIMES IN THE SIERACKI CASE, WHICH HAS BEEN
CONSISTENTLY FOLLOWED SINCE, THAT A SHIPOWNER'S OBLIGATION OF
SEAWORTHINESS CANNOT BE SHIFTED ABOUT, LIMITED, OR ESCAPED BY CONTRACTS
OR BY THE ABSENCE OF CONTRACTS AND THAT THE SHIPOWNER'S OBLIGATION IS
ROOTED, NOT IN CONTRACTS, BUT IN THE HAZARDS OF THE WORK."  SIMILARLY,
THE "HUMANITARIAN POLICY" RATHER THAN THE MORE MECHANICAL, ALBEIT
HISTORICAL, MARITIME TESTS WAS THE STARTING POINT IN WALDRON V. MOORE
MCCORMACK LINES, 396 U.S. 724, 728 (1967): 

"WHEN THIS COURT EXTENDED THE SHIPOWNER'S LIABILITY FOR
UNSEAWORTHINESS TO LONGSHOREMEN PERFORMING SEAMEN'S WORK, SEAS SHIPPING
CO.V. SIERACKI, 328 U.S. 85-- EITHER ON BOARD OR ON THE PIER, GUTIERREZ
V. WATERMAN S.S. CORP., 373 U.S. 206, EITHER WITH THE SHIP'S GEAR OR
THE STEVEDORE'S GEAR, ALASKA S.S. CO. V. PETTERSON, 347 U.S. 396,
EITHER AS EMPLOYEES OF AN INDEPENDENT STEVEDORE OR AS EMPLOYEES OF A
SHIPOWNER PRO HAC VICE, REED V. THE YAKA, 373 U.S. 410-- WE NOTED THAT
THE HAZARDS OF MARINE SERVICE, THE HELPLESSNESS OF THE MEN TO WARD OFF
THE PERILS OF UNSEAWORTHINESS, THE HARSHNESS OF FORCING THEM TO
SHOULDER THEIR LOSSES ALONE, AND THE BROAD RANGE OF THE "HUMANITARIAN
POLICY" OF THE DOCTRINE OF SEAWORTHINESS,' ID., AT 413, SHOULD PREVENT
THE SHIPOWNER FROM DELEGATING, SHIFTING, OR ESCAPING HIS DUTY BY USING
THE MEN OR GEAR OF OTHERS TO PERFORM THE SHIP'S WORK." 

A STRAIGHTFORWARD APPLICATION OF THE SIERACKI PRINCIPLE TO THE
INSTANT CIRCUMSTANCES WOULD CLEARLY WARRANT RECOVERY BY LAW, IF HIS
ALLEGATIONS ARE PROVED AT TRIAL, UNDER THE DOCTRINE OF
UNSEAWORTHINESS.  HE WAS DRIVING A FORKLIFT LADEN WITH CARGO WHICH WAS
TO BE HOISTED ABOARD THE S.S. SAGAMORE HILL.  AS HE DROVE ALONG THE
DOCK, A DEFECTIVE OVERHEAD RACK BECAME DISENGAGED AND CRASHED UPON HIS
HEAD.  THE COURT OF APPEALS CORRECTLY CONCLUDED THAT HIS ACTIVITY HAD
BEEN PART OF THE LOADING PROCESS AND WAS PROTECTED BY THE SIERACKI
PRINCIPLE.  AND AT LEAST TWO OTHER CIRCUITS HAVE MADE SIMILAR
CONCLUSIONS UNDER ANALOGOUS CONDITIONS.  SEE HUFF V. MATSON NAVIGATION
CO., 338 F.2D 205 (CA9 1964); SPANN V. LAURITZEN, 344 F.2D 204 (CA3
1965); SEE ALSO CHAGOIS V. LYKES BROS. S.S. CO., 432 F.2D 388 (CA5
1970). 

BY IGNORING COMPLETELY THE UNDERLYING REASONING OF THESE CASES AND
BY FOCUSING INSTEAD ON THE NARROW FACTS INVOLVED IN EACH OF THEM, THE
MAJORITY GIVES SHORT SHRIFT TO THE POLICY OF DISTRIBUTING LOADING AND
UNLOADING RISKS OF PERSONAL INJURY TO THE USERS OF THE SHIPPING
INDUSTRY.  THE COURT PLACES SPECIAL EMPHASIS ON THE ALIGNMENT IN THIS
CASE OF THREE FACTUAL ELEMENTS:  (A) AN INJURY TO A LONGSHOREMAN
(RATHER THAN A SEAMAN), (B) UPON A DOCK (RATHER THAN UPON A DECK), (C)
CAUSED BY DEFECTIVE EQUIPMENT SUPPLIED BY THE STEVEDORING CONTRACTOR
(RATHER THAN BY THE SHIPOWNER).  THUS THE MAJORITY FINDS GUTIERREZ V.
WATERMAN S.S. CORP., 373 U.S. 206 (1963), INAPPOSITE EVEN THOUGH IT
INVOLVED BOTH THE FIRST AND SECOND CONDITIONS, /2/  AND PRESUMABLY
WOULD VIEW ALASKA S.S. CO. V. PETTERSON, 347 U.S. 396 (1954),
INAPPOSITE EVEN THOUGH IT CONCERNED BOTH THE FIRST AND LAST
CONDITIONS.  /3/  BUT THE MERE FACT THAT THIS COURT HAS NEVER DECIDED A
CONTROVERSY COMPOSED OF THESE PRECISE ELEMENTS IS NOT AN ADEQUATE
REASON FOR EXCEPTING SUCH A CIRCUMSTANCE FROM THE SCOPE OF THE SIERACKI
PRINCIPLE. 

THE MAJORITY OFFERS THREE REASONS FOR THE EXCEPTION.  FIRST, THE
COURT SEEMS TO ARGUE THAT THE SIERACKI PRINCIPLE HAS ALREADY BEEN
LIMITED BY NACIREMA OPERATING CO. V. JOHNSON, 396 U.S. 212 (1969),
HOLDING THAT CONGRESS DID NOT INTEND THAT THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT WOULD APPLY TO ANY INJURY OCCURRING OFF A
SHIP.  IN JOHNSON, HOWEVER, THE COURT CLEARLY ACKNOWLEDGED THAT
CONGRESS' CONSTITUTIONAL MARITIME POWER DOES NOT CEASE AT THE
SHORELINE.  ID., AT 223-224.  AND, OBVIOUSLY, THE REACH OF 28 U.S.C.
1333, CONFERRING UPON DISTRICT COURTS ORIGINAL ADMIRALTY AND MARITIME
JURISDICTION, AS EXTENDED BY THE ADMIRALTY EXTENSION ACT OF 1948, 62
STAT. 496, 46 U.S.C. 740, IS NOT GOVERNED BY THE REACH OF THE HARBOR
WORKERS' ACT.  IN FACT, THE COURT, WHILE DENYING A COMPENSATION REMEDY
UNDER THE HARBOR WORKERS' ACT, NOTED THAT AN ACTION FOR UNSEAWORTHINESS
WOULD LIE AGAINST THE SHIP.  396 U.S.,AT 223 N. 19. 

THE PRIMARY REASON OFFERED TO SUPPORT THE MAJORITY'S EXCEPTION TO
THE SIERACKI PRINCIPLE IS THAT IT IS FOR CONGRESS RATHER THAN THE
JUDICIARY TO DETERMINE THE ADEQUACY OF STATE WORKMEN'S COMPENSATION
LAWS, WHICH, UNDER THE COURT'S HOLDING, WILL NOW BE THE ONLY REMEDY
AVAILABLE TO A LONGSHOREMAN INJURED ASHORE DURING LOADING OR UNLOADING
BY PIER-BASED EQUIPMENT OF THE STEVEDORING CONTRACTOR.  SEE NACIREMA
OPERATING CO. V. JOHNSON, SUPRA.  WHILE CONGRESS, OF COURSE, IS BETTER
EQUIPPED FOR PRECISION ANALYSIS THAN A JUDICIAL FORUM, THE COURTS HAVE
NOT BEEN UNAWARE THAT STATE WORKMEN'S COMPENSATION STATUTES PROVIDE
PUNY AWARDS COMPARED TO JURY EVALUATIONS OF PERSONAL INJURIES.  SEE W.
PROSSER, THE LAW OF TORTS 555 (3D ED.1964).  LIMITED RECOVERY WAS
THOUGHT TO HAVE BEEN NECESSARY BY MOST STATE LEGISLATURES IN ORDER TO
OFFSET THE IMPOSITION AGAINST AN EMPLOYER'S LIABILITY REGARDLESS OF
FAULT.  IN KEEPING WITH ADMIRALTY COURTS' TRADITIONAL SOLICITUDE FOR
THOSE INJURED IN THE MARITIME TRADE, /4/  THE COURT DID NOT DEFER TO
CONGRESS IN OTHER INSTANCES APPROVING LONGSHOREMEN'S RECOVERIES EVEN
THOUGH IT MIGHT ALSO HAVE BEEN ARGUED IN THOSE CASES THAT THE HARBOR
WORKERS' ACT OR STATE SCHEMES MIGHT HAVE BEEN ADEQUATE.  /5/  NO REASON
IS SUGGESTED WHY DEFERENCE IS NEEDED IN THESE CIRCUMSTANCES.  IN ANY
EVENT, REFERRING A LITIGANT TO CONGRESS IS NORMALLY APPROPRIATE WHERE
THE COURT IS RELUCTANT TO ACCEPT HIS INVITATION TO UPSET AN ESTABLISHED
RULE.  INASMUCH AS THE SIERACKI-PETTERSON-GUTIERREZ PRINCIPLE WOULD
APPEAR TO BE THE CONTROLLING PRECEDENT, THE APPROPRIATE REFERRAL TO THE
LEGISLATIVE PROCESS OUGHT TO BE VICTORY CARRIERS, NOT LAW. 

FINALLY THE MAJORITY SAYS THAT:  "AFFIRMANCE OF THE DECISION BELOW
WOULD RAISE A HOST OF NEW PROBLEMS AS TO THE STANDARDS FOR AND
LIMITATIONS ON THE APPLICABILITY OF MARITIME LAW TO ACCIDENTS ON
LAND."  SUCH PROBLEMS WERE QUICKLY BRUSHED ASIDE IN GUTIERREZ, SUPRA,
AT 210, IN WHICH "(VARIOUS FAR-FETCHED HYPOTHETICALS (WERE) RAISED,
SUCH AS A SUIT IN ADMIRALTY FOR AN ORDINARY AUTOMOBILE ACCIDENT
INVOLVING A SHIP'S OFFICER ON SHIP BUSINESS IN PORT, OR FOR SOMEONE'S
SLIPPING ON BEANS THAT CONTINUE TO LEAK FROM (DEFECTIVE CARGO) BAGS IN
. . . DENVER."  SAID THE COURT:  "WE THINK IT SUFFICIENT FOR THE NEEDS
OF THIS OCCASION UNDER 46 U.S.C. 740 WHEN . . . IT IS ALLEGED THAT THE
SHIPOWNER COMMITS A TORT WHILE OR BEFORE THE SHIP IS BEING UNLOADED,
AND THE IMPACT OF WHICH IS FELT ASHORE AT A TIME AND PLACE NOT REMOTE
FROM THE WRONGFUL ACT."  AS IN GUTIERREZ, THE ACCIDENT HERE OCCURRED ON
THE DOCK, AND THE SPECTER OF TROUBLING HYPOTHETICALS ELSEWHERE OUGHT
NOT TO DETER LANDWARD EXTENSION TO LOADING OR UNLOADING INJURIES ON THE
DOCK.  MOREOVER, IF A BRIGHT-LINE TEST IS DESIRABLE, THEN THE SIERACKI
POLICY WOULD BE LESS OFFENDED BY A BRIGHT LINE DRAWN AROUND BOTH THE
SHIP AND THE DOCK THAN BY A LINE CAST ONLY ABOUT THE VESSEL. 
STATISTICAL EVIDENCE SUGGESTS THAT THE GREAT BULK OF HIGH-RISK MARITIME
ACTIVITY OCCURS ON THE SHIP AND THE ADJOINING PIER.  NATIONAL ACADEMY
OF SCIENCES-- NATIONAL RESEARCH COUNCIL, MARITIME CARGO TRANSPORTATION
CONFERENCE, LONGSHORE SAFETY SURVEY 75 (1956).  SEE COMMENT, RISK
DISTRIBUTION AND SEAWORTHINESS, 75 YALE L.J. 1174, 1190 (1966). 

/1) STEVEDORING IS ONE OF THE MOST ACCIDENT-PRONE PROFESSIONS IN
AMERICAN INDUSTRY.  ACCORDING TO THE NATIONAL ACADEMY OF SCIENCES
NATIONAL RESEARCH COUNCIL, MARITIME CARGO TRANSPORTATION CONFERENCE,
LONGSHORE SAFETY SURVEY 22-23 (1956), HAZARDOUS INDUSTRIES HAVE THE
FOLLOWING ACCIDENT FREQUENCY RATES: 

     STEVEDORING . . . 92.3 PER MILLION MAN HOURS WORKED 

     LOGGING . . . 74.3 

STRUCTURAL STEEL ERECTION . . . 47.5 

     SAW AND PLANING MILLS . . . 42.0 

     GENERAL BUILDING . . . 37.0 SEE ALSO NEW YORK SHIPPING ASSN.,
SAFETY BUREAU, ANNUAL ACCIDENTS (1965). 

/2/  ACCORD:  ROGERS V. UNITED STATES LINES, 347 U.S. 984 (1954);
SPANN V. LAURITZEN, 344 F.2D 204 (CA3 1965); HUFF V. MATSON NAVIGATION
CO., 338 F.2D 205 (CA9 1964); CHAGOIS V. LYKES BROS. S.S. CO., 432 F.2D
388 (CA5 1970). 

/3/  ACCORD:  STRIKA V. NETHERLANDS MINISTRY OF TRAFFIC, 185 F.2D
555 (CA2 1950). 

/4/  SEE DIXON V. THE CYRUS, 7 F.CAS.755 (NO. 3,930) (PA. 1789). 
SEE ALSO PETERSON V. THE CHANDOS, 4 F. 645, 650 (ORE.  1880). 

/5/  GUTIERREZ V. WATERMAN S.S. CORP., 373 U.S. 206 (1963); REED V.
THE YAKA, 373 U.S. 410 (1963); ALASKA S.S. CO. V. PETTERSON, 347 U.S.
396 (1954); POPE & TALBOT, INC. V. HAWN, 346 U.S. 406 (1953); SEAS
SHIPPING CO. V. SIERACKI, 328 U.S. 85 (1946); INTERNATIONAL STEVEDORING
CO. V. HAVERTY, 272 U.S. 50 (1926); ATLANTIC TRANSPORT CO. V. IMBROVEK,
234 U.S. 52 (1914). 

W. BOYD REEVES ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE GEORGE F. WOOD AND T. K. JACKSON, JR. 

ROSS DIAMOND, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS J. CECIL GARDNER. 

E. D. VICKERY, DENNIS LINDSAY, FRANCIS A. SCANLAN, AND J. STEWART
HARRISON FILED A BRIEF FOR THE NATIONAL MARITIME COMPENSATION COMMITTEE
AS AMICUS CURIAE URGING REVERSAL. 

DAVID B. KAPLAN FILED A BRIEF FOR THE AMERICAN TRIAL LAWYERS
ASSOCIATION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :






















BRITT V. NORTH CAROLINA, 404 U.S. 226 


       BRITT V. NORTH CAROLINA

        CERTIORARI TO THE COURT OF APPEALS OF NORTH CAROLINA

        NO. 70-5041.  ARGUED OCTOBER 14, 1971-- DECIDED DECEMBER
13,

1971 


PETITIONER WAS CONVICTED OF MURDER A MONTH AFTER HIS PREVIOUS TRIAL
HAD ENDED WITH A HUNG JURY.  BOTH TRIALS TOOK PLACE IN A SMALL TOWN
BEFORE THE SAME JUDGE AND WITH THE SAME COUNSEL AND COURT REPORTER, WHO
(AS WAS CONCEDED) WAS WELL KNOWN TO DEFENSE COUNSEL AND OTHER LOCAL
LAWYERS AND WOULD HAVE READ BACK HIS NOTES TO DEFENSE COUNSEL BEFORE
THE SECOND TRIAL HAD HE BEEN ASKED TO DO SO.  BETWEEN THE TWO TRIALS
PETITIONER, ALLEGING INDIGENCY, FILED A MOTION FOR A FREE TRANSCRIPT,
WHICH THE TRIAL COURT DENIED.  THE APPELLATE COURT AFFIRMED THE
CONVICTION, HOLDING THAT AN ADEQUATE ALTERNATIVE TO THE TRANSCRIPT WAS
AVAILABLE.  HELD:  IN THE NARROW CIRCUMSTANCES OF THIS CASE, A
TRANSCRIPT WAS NOT NEEDED FOR PETITIONER'S DEFENSE.  PP. 227-230. 

8 N.C.APP.  262, 174 S.E.2D 69, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWARD AND WHITE, JJ., JOINED.  BLACKMUN, J., FILED A
STATEMENT CONCURRING IN THE RESULT, POST, P. 230.  DOUGLAS, J., FILED A
DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED, POST, P. 230. 

MR.JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

PETITIONER'S THREE-DAY MURDER TRIAL ENDED IN A MISTRIAL WHEN THE JURY
REPORTED A HOPELESS DEADLOCK.  A RETRIAL WAS SCHEDULED FOR THE
FOLLOWING MONTH.  IN THE INTERIM, PETITIONER FILED A MOTION ALLEGING
THAT HE WAS INDIGENT, AND ASKING FOR A FREE TRANSCRIPT OF THE FIRST
TRIAL.  THE TRIAL COURT DENIED HIS MOTION, AND THE NORTH CAROLINA COURT
OF APPEALS AFFIRMED, STATING THAT THE RECORD OF THE CASE DID NOT REVEAL
A SUFFICIENT NEED FOR THE TRANSCRIPT.  8 N.C.APP.  262, 174 S.E.2D 69
(1970).  THE NORTH CAROLINA SUPREME COURT CERTIORARI.  WE GRANTED
CERTIORARI TO DETERMINE WHETHER THE RULE OF GRIFFIN V. ILLINOIS, 351
U.S. 12 (1956), APPLIES IN THIS CONTEXT.  401 U.S. 973 (1971).  WE
CONCLUDE THAT IT DOES, BUT THAT IN THE NARROW CIRCUMSTANCES OF THIS
CASE, NO VIOLATION OF THAT RULE HAS BEEN SHOWN, AND THEREFORE WE
AFFIRM. 

GRIFFIN V. ILLINOIS AND ITS PROGENY ESTABLISH THE PRINCIPLE THAT THE
STATE MUST, AS A MATTER OF EQUAL PROTECTION, PROVIDE INDIGENT PRISONERS
WITH THE BASIC TOOLS OF AN ADEQUATE DEFENSE OR APPEAL, WHEN THOSE TOOLS
ARE AVAILABLE FOR A PRICE TO OTHER PRISONERS.  WHILE THE OUTER LIMITS
OF THAT PRINCIPLE ARE NOT CLEAR, THERE CAN BE NO DOUBT THAT THE STATE
MUST PROVIDE AN INDIGENT DEFENDANT WITH A TRANSCRIPT OF PRIOR
PROCEEDINGS WHEN THAT TRANSCRIPT IS NEEDED FOR AN EFFECTIVE DEFENSE OR
APPEAL.  /1/  THE QUESTION HERE IS WHETHER THE STATE COURT PROPERLY
DETERMINED THAT THE TRANSCRIPT REQUESTED IN THIS CASE WAS NOT NEEDED
FOR AN EFFECTIVE DEFENSE. 

IN PRIOR CASES INVOLVING AN INDIGENT DEFENDANT'S CLAIM OF RIGHT TO A
FREE TRANSCRIPT, THIS COURT HAS IDENTIFIED TWO FACTORS THAT ARE
RELEVANT TO THE DETERMINATION OF NEED:  (1) THE VALUE OF THE TRANSCRIPT
TO THE DEFENDANT IN CONNECTION WITH THE APPEAL OR TRIAL FOR WHICH IT IS
SOUGHT, AND (2) THE AVAILABILITY OF ALTERNATIVE DEVICES THAT WOULD
FULFILL THE SAME FUNCTIONS AS A TRANSCRIPT.  /2/  MR. JUSTICE DOUGLAS
SUGGESTS THAT THE NORTH CAROLINA COURTS REFUSED TO ORDER A TRANSCRIPT
IN THIS CASE BOTH BECAUSE PETITIONER FAILED TO MAKE A PARTICULARIZED
SHOWING OF NEED, AND BECAUSE THERE WERE ADEQUATE ALTERNATIVE DEVICES
AVAILABLE TO HIM. 

WE AGREE WITH THE DISSENTERS THAT THERE WOULD BE SERIOUS DOUBTS
ABOUT THE DECISION BELOW IF IT RESTED ON PETITIONER'S FAILURE TO
SPECIFY HOW THE TRANSCRIPT MIGHT HAVE BEEN USEFUL TO HIM.  POUR CASES
HAVE CONSISTENTLY RECOGNIZED THE VALUE TO A DEFENDANT OF A TRANSCRIPT
OF PRIOR PROCEEDINGS, WITHOUT REQUIRING A SHOWING OF NEED TAILORED TO
THE FACTS OF THE PARTICULAR CASE.  /3/  AS MR. JUSTICE DOUGLAS MAKES
CLEAR, EVEN IN THE ABSENCE OF SPECIFIC ALLEGATIONS IT CAN ORDINARILY BE
ASSUMED THAT A TRANSCRIPT OF A PRIOR MISTRIAL WOULD BE VALUABLE TO THE
DEFENDANT IN AT LEAST TWO WAYS:  AS A DISCOVERY DEVICE IN PREPARATION
FOR TRIAL, AND AS A TOOL AT THE TRIAL ITSELF FOR THE IMPEACHMENT OF
PROSECUTION WITNESSES. 

BUT THE COURT BELOW DID NOT USE THE LANGUAGE OF "PARTICULARIZED
NEED."  IT RESTED THE DECISION INSTEAD ON THE SECOND FACTOR IN THE
DETERMINATION OF NEED, THAT IS, THE AVAILABILITY OF ADEQUATE
ALTERNATIVES TO A TRANSCRIPT.  THE SECOND TRIAL WAS BEFORE THE SAME
JUDGE, WITH THE SAME COUNSEL AND THE SAME COURT REPORTER, AND THE TWO
TRIALS WERE ONLY A MONTH APART.  IN THESE CIRCUMSTANCES, THE COURT
SUGGESTED THAT PETITIONER'S MEMORY AND THAT OF HIS COUNSEL SHOULD HAVE
FURNISHED AN ADEQUATE SUBSTITUTE FOR A TRANSCRIPT.  IN ADDITION, THE
COURT POINTED TO THE FACT THAT PETITIONER COULD HAVE CALLED THE COURT
REPORTED TO READ TO THE JURY THE TESTIMONY GIVEN AT THE MISTRIAL, IN
THE EVENT THAT INCONSISTENT TESTIMONY WAS OFFERED AT THE SECOND TRIAL. 

WE HAVE REPEATEDLY REJECTED THE SUGGESTION THAT IN ORDER TO RENDER
EFFECTIVE ASSISTANCE, COUNSEL MUST HAVE A PERFECT MEMORY OR KEEP
EXHAUSTIVE NOTES OF THE TESTIMONY GIVEN AT TRIAL.  /4/  MOREOVER, WE
DOUBT THAT IT WOULD SUFFICE TO PROVIDE THE DEFENDANT WITH LIMITED
ACCESS TO THE COURT REPORTER DURING THE COURSE OF THE SECOND TRIAL. 
THAT APPROACH WAS APTLY REJECTED AS "TOO LITTLE AND TOO LATE" IN UNITED
STATES EX REL. WILSON V. MCMANN, 408 F.2D 896, 897 (CA2 1969).  AT ORAL
ARGUMENT IN THIS CASE, HOWEVER, IT EMERGED THAT PETITIONER COULD HAVE
OBTAINED FROM THE COURT REPORTER FAR MORE ASSISTANCE THAN THAT
AVAILABLE TO THE ORDINARY DEFENDANT, OR TO THE DEFENDANT IN WILSON. 
THE TRIALS OF THIS CASE TOOK PLACE IN A SMALL TOWN WHERE, ACCORDING TO
PETITIONER'S COUNSEL, THE COURT REPORTER WAS A GOOD FRIEND OF ALL THE
LOCAL LAWYERS AND WAS REPORTING THE SECOND TRIAL.  IT APPEARS THAT THE
REPORTER WOULD AT ANY TIME HAVE READ BACK TO COUNSEL HIS NOTES OF THE
MISTRIAL, WELL IN ADVANCE OF THE SECOND TRIAL, IF COUNSEL HAD SIMPLY
MADE AN INFORMAL REQUEST.  /5/ 

A DEFENDANT WHO CLAIMS THE RIGHT TO A FREE TRANSCRIPT DOES NOT,
UNDER OUR CASES, BEAR THE BURDEN OF PROVING INADEQUATE SUCH
ALTERNATIVES AS MAY BE SUGGESTED BY THE STATE OR CONJURED UP BY A COURT
IN HINDSIGHT.  IN THIS CASE, HOWEVER, PETITIONER HAS CONCEDED THAT HE
HAD AVAILABLE AN INFORMAL ALTERNATIVE WHICH APPEARS TO BE SUBSTANTIALLY
EQUIVALENT TO A TRANSCRIPT.  /6/  ACCORDINGLY, WE CANNOT CONCLUDE THAT
THE COURT BELOW WAS IN ERROR IN REJECTING HIS CLAIM. 

FOR THESE REASONS THE JUDGMENT IS

              AFFIRMED 

/1/  WILLIAMS V. OKLAHOMA CITY, 395 U.S. 458 (1969); GARDNER V.
CALIFORNIA, 393 U.S. 367 (1969); ROBERTS V. LAVALLEE, 389 U.S. 40
(1967); LONG V. DISTRICT COURT OF IOWA, 385 U.S. 192 (1966); DRAPER V.
WASHINGTON, 372 U.S. 487 (1963); ESKRIDGE V. WASHINGTON PRISON BOARD,
357 U.S. 214 (1958); GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956). 

/2/  SEE DRAPER V. WASHINGTON, SUPRA, AT 495-496, AND OTHER CASES
CITED N. 1, SUPRA. 

/3/  IN GRIFFIN, THE COURT WAS ABLE TO RELY ON A CONCESSION OF NEED
BY THE STATE, 351 U.S., AT 13-14, 16.  IN SUBSEQUENT CASES THE COURT
HAS TAKEN JUDICIAL NOTICE OF THE IMPORTANCE OF A TRANSCRIPT IN A
VARIETY OF CIRCUMSTANCES, SEE ESKRIDGE, SUPRA, AT 215; GARDNER, SUPRA,
AT 369-370.  MOST RECENTLY IN LONG AND ROBERTS THE COURT SIMPLY FOUND
IT UNNECESSARY TO DISCUSS THE QUESTION, NOTWITHSTANDING THE FACT THAT
IN ROBERTS MR. JUSTICE HARLAN ARGUED IN DISSENT THAT PETITIONER HAD
SUGGESTED NO USE TO WHICH THE TRANSCRIPT COULD HAVE BEEN PUT, 389
U.S.,AT 43. 

/4/  WHILE TRIAL NOTES MIGHT WELL PROVIDE AN ADEQUATE SUBSTITUTE FOR
A TRANSCRIPT, THE FAILURE TO MAKE SUCH NOTES DOES NOT BAR AN INDIGENT
PRISONER FROM CLAIMING THE RIGHT TO A FREE TRANSCRIPT, ESKRIDGE, SUPRA,
AT 215.  AS FOR REQUIRING A PRISONER TO RELY ON HIS MEMORY, THIS COURT
REJECTED THAT AS AN ALTERNATIVE TO A TRANSCRIPT IN GARDNER, SUPRA, AT
369-370, AND WILLIAMS, SUPRA, AT 459.  INDEED, IN LONG WE REFUSED TO
CONSIDER ANY ALTERNATIVES SUGGESTED BY THE STATE, ON THE GROUND THAT IN
THAT CASE A TRANSCRIPT WAS IN FACT AVAILABLE AND COULD EASILY HAVE BEEN
FURNISHED.  385 U.S.,AT 194-195.  WHETHER A TRANSCRIPT IS SIMILARLY
AVAILABLE IN THIS CASE DOES NOT APPEAR FROM THE RECORD. 

/5/  TR. OF ORAL ARG. 12.  CF. AVERY V. ALABAMA, 308 U.S. 444, 450
452 (1940) (BLACK, J.). 

/6/  CF. WADE V. WILSON, 396 U.S. 282 (1970), IN WHICH NO SUCH
CONCESSION WAS MADE.  IN THAT CASE IT SIMPLY APPEARED FROM THE RECORD
THAT PETITIONER MIGHT HAVE BEEN ABLE TO BORROW A TRANSCRIPT FROM THE
PROSECUTOR, IN LIGHT OF THE FACT THAT HE HAD DONE SO IN AN EARLIER
PROCEEDING.  WE REMANDED THE CASE TO PERMIT EXPLORATION OF THAT
POSSIBILITY. 

MR. JUSTICE BLACKMUN CONCURS IN THE RESULT, BUT HE WOULD DISMISS THE
PETITION FOR CERTIORARI AS HAVING BEEN IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

AFTER THE STATE'S FIRST MURDER PROSECUTION OF THE PETITIONER ENDED
IN A HUNG JURY IN NOVEMBER 1969, BRITT WAS RETRIED, CONVICTED, AND
SENTENCED TO 30 YEARS' IMPRISONMENT.  DURING THE INTERIM BETWEEN THE
TWO TRIALS, THE PETITIONER MADE A SHOWING OF INDIGENCY AND ASKED THAT
THE STATE PROVIDE HIM WITH A FREE TRANSCRIPT OF THE MISTRIAL.  THE
TRIAL COURT DENIED HIS MOTION DESPITE BRITT'S CONTENTION THAT BECAUSE A
MORE AFFLUENT DEFENDANT COULD PURCHASE SUCH A TRANSCRIPT AS A MATTER OF
RIGHT A DENIAL OF HIS REQUEST WOULD OFFEND THE PRINCIPLE OF GRIFFIN V.
ILLINOIS, 351 U.S. 12 (1956).  ON APPEAL, THE NORTH CAROLINA COURT OF
APPEALS WAS LIKEWISE UNCONVINCED BY BRITT'S EQUAL PROTECTION CLAIM AND
AFFIRMED THE TRIAL COURT'S REFUSAL TO ORDER A FREE TRANSCRIPT, STATING
THAT (A) THE PETITIONER HAD NOT MADE A PARTICULARIZED SHOWING OF NEED,
(B) HE HAD BEEN REPRESENTED BY THE SAME LAWYER AT BOTH TRIALS, AND
THEREFORE (C) ANY SUSPECTED INCONSISTENCIES IN PROSECUTION EVIDENCE
COULD HAVE BEEN DEVELOPED BY COUNSEL'S PUTTING ON THE COURT REPORTED TO
READ EARLIER TESTIMONY OF THE FIRST TRIAL.  BECAUSE I AM PERSUADED BY
BRITT'S ARGUMENT I WOULD REVERSE THE DECISION OF THE NORTH CAROLINA
COURT OF APPEALS. 

     I 

GRIFFIN V. ILLINOIS, SUPRA, AT 19, ESTABLISHED THE NOW FAMILIAR
PRINCIPLE THAT "(THERE CAN BE NO EQUAL JUSTICE WHERE THE KIND OF TRIAL
A MAN GETS DEPENDS ON THE AMOUNT OF MONEY HE HAS."  WHILE GRIFFIN
INVOLVED ONLY THE PROVISION OF A FREE TRANSCRIPT TO AN INDIGENT ON
DIRECT APPEAL, ITS UNDERLYING PRINCIPLE HAS ACHIEVED BROADER USAGE.  WE
HAVE WITNESSED A STEADY GROWTH OF ITS APPLICATIONS TO OTHER TRANSCRIPT
CASES, /1/  TO DOCKETING FEES, /2/  AND TO RIGHT TO COUNSEL.  /3/ 

OF THESE APPLICATIONS, ROBERTS V. LAVALLEE, 389 U.S. 40 (1967), IS
MOST ANALOGOUS TO THE INSTANT CIRCUMSTANCES.  IN ROBERTS, AN INDIGENT
DEFENDANT BEFORE TRIAL ASKED A STATE COURT TO PROVIDE HIM WITH A FREE
TRANSCRIPT OF A PRELIMINARY HEARING AT WHICH A KEY STATE WITNESS HAD
TESTIFIED.  IN ROBERTS, AS HERE, NO SPECIAL SHOWING OF NEED WAS MADE,
THE DEFENDANT WAS REPRESENTED BY THE SAME COUNSEL AT ALL TIMES, AND THE
COURT REPORTER COULD HAVE BEEN CALLED TO READ BACK PREVIOUS TESTIMONY. 
ID., AT 43.  NONETHELESS, OVER THE DISSENT OF MR. JUSTICE HARLAN THAT
NO PREJUDICE HAD BEEN SHOWN, ID., AT 44, WE HELD THAT WITHHOLDING THE
REQUESTED TRANSCRIPT WAS AN INVALID INTERPOSITION OF A FINANCIAL
CONSIDERATION BETWEEN AN INDIGENT PRISONER AND HIS RIGHT TO SUE FOR HIS
LIBERTY.  ID., AT 42. 

HERE THE REQUEST WAS FOR A MISTRIAL TRANSCRIPT, WHEREAS IN ROBERTS A
MOTION HAD BEEN MADE FOR A PRELIMINARY HEARING TRANSCRIPT.  IN THE WAYS
IN WHICH EITHER MIGHT BE USED I CAN PERCEIVE NO DIFFERENCES.  IN BOTH
SETS OF CIRCUMSTANCES IT WOULD SEEM THAT DEFENDANTS WOULD BE INTERESTED
IN BETTER TRIAL PREPARATION AND IN BETTER POSITIONS FROM WHICH TO
CHALLENGE DISCREPANCIES IN GOVERNMENT WITNESSES' STORIES.  /4/  FOR
BOTH OF THESE PURPOSES A MISTRIAL TRANSCRIPT WOULD BE MORE VALUABLE
THAN A PRELIMINARY HEARING RECORDING BECAUSE THE FORMER IS A VIRTUAL
DRY RUN OF THE ENTIRE PROSECUTION'S CASE, INFORMATION WHICH NORMALLY IS
CLOTHED IN TOP SECRECY UNDER THE PREVAILING AND RESTRICTIVE RULES
AGAINST A CRIMINAL DEFENDANT'S DISCOVERY. 

PERHAPS FOR THESE CONSIDERATIONS THE SECOND CIRCUIT HAS SQUARELY
HELD THAT INDIGENT STATE DEFENDANTS HAVE AN ABSOLUTE RIGHT TO FREE
TRANSCRIPTS OF PREVIOUS PROSECUTIONS ENDING IN HUNG JURIES.  UNITED
STATES EX REL. WILSON V. MCMANN, 408 F.2D 896 (CA2 1969).  AS BOTH HERE
AND IN ROBERTS, WILSON HAD MADE NO SHOWING OF PARTICULAR NEED, HAD BEEN
REPRESENTED BY THE SAME LAWYER AT ALL TIMES, AND COULD HAVE CALLED THE
COURT REPORTER TO READ BACK PREVIOUS TESTIMONY.  AND, AS HERE, THE
DEFENDANT HAD REQUESTED A MISTRIAL TRANSCRIPT DURING THE INTERIM
BETWEEN THE TWO PROSECUTIONS.  THE SECOND CIRCUIT CONSIDERED GRIFFIN
AND ROBERTS CONTROLLING. 

THE NORTH CAROLINA COURT OF APPEALS, HOWEVER, HAS REJECTED THE
GRIFFIN-ROBERTS-WILSON CASES AND SOUGHT REFUGE IN THE PRE-ROBERTS
AUTHORITY OF NICKENS V. UNITED STATES, 116 U.S.APP.D.C. 338, 323 F.2D
808 (1963), WHICH HAD EMPHASIZED, AS DID THE COURT BELOW, THE
DEFENDANT'S FAILURE TO ARTICULATE A PARTICULAR NEED FOR A TRANSCRIPT,
THE CONTINUITY OF DEFENSE COUNSEL, AND THE AVAILABILITY OF THE COURT
REPORTER.  /5/  I THOUGHT THAT THESE ARGUMENTS HAD BEEN FOUND
IRRELEVANT FOR CONSTITUTIONAL PURPOSES UNDER GRIFFIN-ROBERTS-WILSON. 

     II 

THE PRIMARY RATIONALE OFFERED TO SUPPORT THE HOLDING BELOW IS THAT
THE PETITIONER FAILED TO MAKE A SHOWING OF A PARTICULARIZED NEED FOR A
MISTRIAL TRANSCRIPT.  PRESUMABLY THIS RATIONALE FLOWS FROM THE
LEGITIMATE STATE INTEREST IN AVOIDING NEEDLESS FISCAL OUTLAYS.  IN
RELATED CONTEXTS WE HAVE REJECTED THE NOTION THAT AN IMPOVERISHED
ACCUSED IN THE FEDERAL COURTS MAY BE REFUSED A TRANSCRIPT SIMPLY
BECAUSE HIS LAWYER IS UNABLE TO ARTICULATE THE VERY SUBTLETIES WHICH
MIGHT BE BURIED IN THE DOCUMENT HE SEEKS.  FOR EXAMPLE, IN HARDY V.
UNITED STATES, 375 U.S. 277 (1964), WE REQUIRED COURTS OF APPEALS TO
ORDER FOR INDIGENT CRIMINAL APPELLANTS COMPLETE TRIAL TRANSCRIPTS EVEN
FOR THE PRELIMINARY PURPOSE OF DETERMINING WHETHER THEIR APPEALS MIGHT
PRESENT NONFRIVOLOUS QUESTIONS FOR REVIEW AND THEREFORE ENTITLE THEM TO
IN FORMA PAUPERIS RELIEF PURSUANT TO 28 U.S.C. 1915.  WE REJECTED THE
THEN-PREVAILING VIEW THAT A FULL TRANSCRIPT FOR SUCH PURPOSES COULD
ONLY BE PROVIDED FOR THOSE APPELLANTS ABLE TO DEMONSTRATE A PARTICULAR
NEED FOR ALL PARTS THEREOF.  THE CONCURRING OPINION OF FOUR JUSTICES
CONCERNING THE VALUE OF A TRANSCRIPT IN APPELLATE ADVOCACY IS
APPLICABLE TO THE ANALOGOUS USE OF A MISTRIAL TRANSCRIPT IN FORMULATING
RETRIAL STRATEGY:     "AS ANY EFFECTIVE APPELLATE ADVOCATE WILL ATTEST,
THE MOST BASIC AND FUNDAMENTAL TOOL OF HIS PROFESSION IS THE COMPLETE
TRIAL TRANSCRIPT, THROUGH WHICH HIS

  TRAINED FINGERS MAY LEAF AND HIS TRAINED EYES MAY ROAM IN SEARCH
OF AN ERROR, A LEAD TO AN

  ERROR, OR EVEN A BASIS UPON WHICH TO URGE A CHANGE IN AN
ESTABLISHED AND HITHERTO ACCEPTED

  PRINCIPLE OF LAW . . . . 

     " . . . NO RESPONSIBLE RETAINED LAWYER WHO REPRESENTS A

  DEFENDANT AT TRIAL WILL RELY EXCLUSIVELY ON HIS MEMORY (EVEN AS

  SUPPLEMENTED BY TRIAL NOTES) IN COMPOSING A LIST OF POSSIBLE

  TRIAL ERRORS WHICH DELIMIT HIS APPEAL."  HARDY V. UNITED STATES,

  SUPRA, AT 288 (GOLDBERG, J., CONCURRING). 

SIMILARLY, WHILE COUNSEL IS STUDYING MISTRIAL MINUTES, THE PRECISE
WORDS USED BY A WITNESS MIGHT TRIGGER MENTAL PROCESSES RESULTING IN
LEGITIMATE DEFENSE STRATEGIES WHICH OTHERWISE MIGHT BE OVERLOOKED. 
SUCH SPONTANEITY CAN HARDLY BE FORECAST AND ARTICULATED IN ADVANCE IN
TERMS OF SPECIAL OR PARTICULARIZED NEED. 

IT IS UNNECESSARY, HOWEVER, TO SPECULATE AS TO HOW OFTEN HELPFUL
SUBTLETIES IN MISTRIAL TRANSCRIPTS MIGHT ACTUALLY BE FOUND BECAUSE, AS
A MORE GENERAL MATTER, AT LEAST TWO COMPELLING INTERESTS WOULD BE
ROUTINELY SERVED BY PROVIDING PAUPERS WITH FREE TRANSCRIPTS, EVEN IN
CASES WHERE COUNSEL WERE UNABLE TO SPECIFY THE PRECISE NATURE OF THE
BENEFITS OF SUCH DISCOVERY.  AS MENTIONED EARLIER, ONE SUCH INTEREST IS
THAT OF EFFECTIVE TRIAL PREPARATION BY COUNSEL (WHO MAY REALIZE THAT
HIS COUNTERPART, THE PROSECUTOR, WILL EMPLOY A SIMILAR DOCUMENT
SUPPLIED AT THE STATE'S EXPENSE DURING HIS OWN TRIAL PREPARATION).  THE
OTHER INTEREST IS THAT OF ANTICIPATING POSSIBLE DISCREPANCIES IN
PROSECUTION WITNESSES' STATEMENTS AND IN BEING PREPARED IMMEDIATELY TO
CHALLENGE SUCH CONTRADICTIONS.  SEE WILSON, SUPRA, AT 897.  BECAUSE
WEALTHIER DEFENDANTS TEND TO PURCHASE TRANSCRIPTS AS A MATTER OF COURSE
SIMPLY ON THE STRENGTH OF THESE RECURRING INTERESTS, IT WOULD APPEAR
THAT THESE BENEFITS ARE ORDINARILY WORTH THE FISCAL BURDEN OF PROVIDING
THE DOCUMENTS REGARDLESS OF HOW THE COST OF REPRODUCING MINUTES MAY BE
DISTRIBUTED.  /6/ 

WHEN VIEWED IN THE BROADER CONTEXT OF A DEFENDANT'S COMPLETE LACK OF
CRIMINAL DISCOVERY PROCEDURES, THE IMPORTANCE OF A MISTRIAL TRANSCRIPT
BECOMES EVEN CLEARER.  MANY COMMENTATORS HAVE CRITICIZED THE PERSISTENT
COMMON-LAW PROHIBITION AGAINST DISCOVERY BY CRIMINAL DEFENDANTS,
CHARACTERIZING PRESENT SYSTEMS AS "SPORTING THEORIES OF JUSTICE" AND
COMPLAINING OF THE VAST ADVANTAGE ENJOYED BY THE PROSECUTION IN THE
MARSHALING OF EVIDENCE.  /7/  WHILE SOME STATES AND THE FEDERAL SYSTEM
HAVE MOVED TO LIBERALIZE DEFENDANTS' DISCOVERY PRIVILEGES, /8/  THE
COMMON-LAW PROHIBITION WITH LIMITED EXCEPTIONS STILL APPLIES IN NORTH
CAROLINA.  /9/  NO CRIMINAL ANALOGUE HAS BEEN ENACTED TO COMPLEMENT THE
STATE'S MORE MODERN AND COMPREHENSIVE RULES OF CIVIL DISCOVERY.  /10/
INSTEAD, ITS JUDICIARY HAS CONTINUED TO APPLY THE COMMON LAW'S FLAT BAN
AND AS RECENTLY AS 1964 HAS REAFFIRMED THAT POLICY.  IN STATE V.
GOLDBERG, 261 N.C. 181, 134 S.E. 2D 334 (1964), THE NORTH CAROLINA
SUPREME COURT AFFIRMED A TRIAL COURT'S REFUSAL TO ORDER THE STATE
BUREAU OF INVESTIGATION TO PERMIT A DEFENDANT TO INSPECT CERTAIN
DOCUMENTS IN ITS FILES.  IN EXPLAINING THE ANCIENT RULE THE COURT
APPROVED THE LANGUAGE OF CHIEF JUSTICE VANDERBILT'S WELL-KNOWN VIEW OF
CRIMINAL DISCOVERY IN THE LEADING CASE OF STATE V. TUNE, 13 N.J. 203,
98 A.2D 881 (1953): 

     "'IN CRIMINAL PROCEEDINGS LONG EXPERIENCE HAS TAUGHT THE
COURTS

  THAT OFTEN DISCOVERY WILL LEAD NOT TO HONEST FACT-FINDING, BUT ON

  THE CONTRARY TO PERJURY AND THE SUPPRESSION OF EVIDENCE.  THUS

  THE CRIMINAL WHO IS AWARE OF THE WHOLE CASE AGAINST HIM WILL

 OFTEN PROCURE PERJURED TESTIMONY IN ORDER TO SET UP A FALSE

  DEFENSE . . . . ANOTHER RESULT OF FULL DISCOVERY WOULD BE THAT

  THE CRIMINAL DEFENDANT WHO IS INFORMED OF THE NAMES OF ALL THE

  STATE'S WITNESSES MAY TAKE STEPS TO BRIBE OR FRIGHTEN THEM INTO

  GIVING PERJURED TESTIMONY OR INTO ABSENTING THEMSELVES SO THAT

  THEY ARE UNAVAILABLE TO TESTIFY.  MOREOVER, MANY WITNESSES, IF

  THEY KNOW THAT THE DEFENDANT WILL HAVE KNOWLEDGE OF THEIR NAMES

  PRIOR TO TRIAL, WILL BE RELUCTANT TO COME FORWARD WITH

  INFORMATION DURING THE INVESTIGATION OF THE CRIME . . . . ALL

  THESE DANGERS ARE MORE INHERENT IN CRIMINAL PROCEEDINGS WHERE THE

 DEFENDANT HAS MUCH MORE AT STAKE, OFTEN HIS OWN LIFE, THAN IN

  CIVIL PROCEEDINGS.  THE PRESENCE OF PERJURY IN CRIMINAL

  PROCEEDINGS TODAY IS EXTENSIVE DESPITE THE EFFORTS OF THE COURTS

  TO ERADICATE IT AND CONSTITUTES A VERY SERIOUS THREAT TO THE

  ADMINISTRATION OF CRIMINAL JUSTICE AND THUS TO THE WELFARE OF THE

  COUNTRY AS A WHOLE . . . . TO PERMIT UNQUALIFIED DISCLOSURE OF

  ALL STATEMENTS AND INFORMATION IN THE HANDS OF THE STATE WOULD GO

  FAR BEYOND WHAT IS REQUIRED IN CIVIL CASES; IT WOULD DEFEAT THE

  VERY ENDS OF JUSTICE.'"  JUSTICE.'"  STATE V. GOLDBERG, SUPRA, AT

  192, 134 S.E.2D, AT 341.  /11/ 

NORTH CAROLINA'S PRESENTATION OF AN ANTI-DISCOVERY POLICY IS
EVIDENCED NOT ONLY IN ITS RELUCTANCE TO ENACT A MODERN CODE TO PERMIT
SUCH PROCEDURES BUT ALSO IN ITS OCCASIONAL ONE-SIDED LEGISLATION
CONCERNING RELATED MATTERS.  FOR EXAMPLE, WHILE A LOCAL PROSECUTOR HAS
AN ABSOLUTE RIGHT TO INSPECT THE FILES OF THE STATE BUREAU OF
INVESTIGATION WHICH PERTAIN TO ONE OF HIS LOCAL INQUIRIES, AN ACCUSED
MAY INSPECT SUCH EVIDENCE ONLY UPON COURT ORDER PROCURED FOR GOOD
CAUSE.  SEE N.C. GEN. STAT. SEC. 114-15 (1966).  EVEN A COMMON-LAW
REQUEST FOR A BILL OF PARTICULARS TO CLARIFY AN INDICTMENT NORMALLY
DOES NOT REQUIRE A PROSECUTOR TO DIVULGE NAMES OF HIS WITNESSES OR THE
NATURE OF HIS PHYSICAL OR DOCUMENTARY EVIDENCE.  /12/  N.C. GEN. STAT.
SEC. 15-143 (1965); STATE V. SPENCE, 271 N.C. 23, 32, 155 S.E.2D 802,
809 (1967).  /13/ 

THUS, IT IS NOT SURPRISING THAT BRITT'S INVESTIGATIVE AND
PREPARATORY RESOURCES WERE PUNY IN CONTRAST TO THOSE EMPLOYED BY HIS
ACCUSERS.  THE LOCAL POLICE WERE ABLE TO ENLIST THE TALENT OF THE STATE
BUREAU OF INVESTIGATION TO TRACE AND ANALYZE FINGERPRINT EVIDENCE. 
INVESTIGATORS WERE ABLE TO STUDY THE SITUS OF THE MURDER.  AT THEIR
CONVENIENCE OFFICERS WERE ABLE TO INTERROGATE THE INCARCERATED
DEFENDANT, EVENTUALLY ELICITING FROM HIM AN INCRIMINATING STATEMENT. 
AFTER THE MISTRIAL THE PROSECUTOR, UNLIKE BRITT'S LAWYER, HAD ACCESS TO
A TRANSCRIPT TO READJUST HIS TRIAL STRATEGY. 

THIS COURT HAS BEEN SENSITIVE TO THE PERSUASIVE ARGUMENTS FOR MORE
LIBERAL RULES OF CRIMINAL DISCOVERY.  /14/  TO THE EXTENT THAT A STATE
PERMITS CRIMINAL DISCOVERY BY ITS ACCUSED, IT IS OUR DUTY TO FORBID
DISTRIBUTION OF ITS FRUITS ACCORDING TO FORMULAS BASED ON WEALTH,
WHICH, LIKE RACE, IS A SUSPECT CLASSIFICATION.  GRIFFIN V. ILLINOIS,
SUPRA; HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663 (1966);
SHAPIRO V. THOMPSON, 394 U.S. 618 (1969). 

THE PROVISION IN NORTH CAROLINA PERMITTING DEFENDANTS TO PURCHASE
MISTRIAL MINUTES IS OBVIOUSLY AN IMPORTANT EXCEPTION TO THE COMMON-LAW
PROHIBITION.  A MISTRIAL TRANSCRIPT CONTAINS NOT ONLY PROSECUTION
WITNESSES' NAMES AND ADDRESSES BUT THEIR STORIES UNDER OATH AND IT
CONTAINS THE ENTIRE THEORY OF THE GOVERNMENT'S CASE.  SUCH A DOCUMENT
IS A COMPLETE DOSSIER OF THE OPPOSING CASE FOR WHICH EVEN THE MOST
LIBERALIZED RULES OF CIVIL DISCOVERY HAVE NO EQUIVALENT.  WHILE THIS
EXCEPTION ENDURES, CONSIDERATIONS WHICH EFFECTIVELY DEPRIVE THE POOR OF
THIS VALUABLE TOOL. 

        III 

THE LOWER COURT'S OPINION SUGGESTS THAT WHATEVER LEGITIMATE USES
GENERALLY MIGHT BE MADE OF MISTRIAL MINUTES COULD ALTERNATIVELY BE
ACCOMPLISHED BY COUNSEL'S CALLING AS A WITNESS THE COURT REPORTER OF
THE PREVIOUS PROSECUTION.  SEE ALSO NICKENS V. UNITED STATES, 116
U.S.APP.D.C.,AT 341, 323 F.2D,AT 811.  HOWEVER SATISFACTORILY THAT
SUGGESTION MIGHT FACILITATE IMPEACHMENT OF GOVERNMENT WITNESSES, IT
SHOULD BE CLEAR THAT THE PROCEDURE WOULD PROVIDE NO ASSISTANCE IN
PREPARING COUNSEL FOR TRIAL. 

MOREOVER, THE PROCEDURE OF CALLING A COURT REPORTER TO VERIFY
HOSTILE WITNESSES' CONTRADICTIONS HAS BEEN DISCREDITED BY TRIAL
COMMENTATORS, INCLUDING PROFESSOR ROBERT KEETON: 

"IF YOU HAVE CAUGHT THE WITNESS IN A CONTRADICTION IT IS THE MORE
CLEARLY SHOWN IF THE EXACT WORDS PREVIOUSLY USED BY THE WITNESS ARE
BROUGHT TO THE JURY'S ATTENTION.  THE EFFECT MAY EXTEND BEYOND THE
BEARING OF THE CONTRADICTION ON ITS OWN SUBJECT MATTER, FOR THE WITNESS
MAY BE 'BROKEN DOWN' SO THAT HE MAKES OTHER ADMISSIONS OR THE JURY
DISBELIEVES OTHER PARTS OF HIS TESTIMONY.  CALLING UPON THE REPORTER TO
READ SUCH PRIOR TESTIMONY DURING THE EXAMINATION, HOWEVER, IS RARELY A
PRACTICABLE METHOD OF CONFRONTING THE WITNESS WITH SUCH CONTRADICTION. 
MANY TRIAL JUDGES WILL DECLINE TO PERMIT THE PRACTICE BECAUSE OF THE
GREAT DELAY USUALLY INVOLVED, WHILE THE REPORTER IS SEARCHING THROUGH
HIS NOTES IN AN EFFORT TO FIND THE PART OF THE TESTIMONY TO WHICH YOU
REFER.  EVEN IF THE JUDGE WILL WILL PERMIT THE PRACTICE, THE WISDOM OF
ITS USE IS QUESTIONABLE.  THE JURY AND COURT MAY GROW IMPATIENT, AND
THE WITNESS WILL HAVE BEEN AFFORDED A CONSIDERABLE PERIOD OF TIME TO
THINK ABOUT THE MATTER AND BE PREPARED WITH AN EXPLANATION OR EXCUSE." 
R. KEETON, TRIAL TACTICS AND METHODS 103 (1954). 

INDEED THESE HAZARDS WERE PAINFULLY PRESENT IN UNITED STATES EX REL.
WILSON V. MCMANN, SUPRA, IN WHICH WILSON'S ATTORNEY ERRONEOUSLY
BELIEVED HE REMEMBERED AN INCONSISTENT STATEMENT OF A PROSECUTION
WITNESS WHO HAD TESTIFIED AT THE PRIOR MISTRIAL.  AT THE SECOND TRIAL
THE LAWYER QUIZZED THE WITNESS CONCERNING THIS PRIOR REMARK BUT THE
WITNESS DENIED HAVING EVER MADE IT.  THE JUDGE DECIDED TO DELAY THE
TRIAL UNTIL THE REPORTER OF THE MISTRIAL COULD READ BACK THE PRECISE
WORDS USED BY THE WITNESS.  AFTER "CONSIDERABLE DELAY AND PERHAPS SOME
INCONVENIENCE TO THE JURORS" COUNSEL LEARNED THAT HE HAD BEEN MISTAKEN
AND THAT NO CONTRADICTION, AT LEAST ON THE SUSPECTED ISSUE, HAD
EXISTED.  ID., AT 898. 

I AM NOT SATISFIED THAT THE PROCEDURES AFFORDED PAUPERS BY THE
NICKENS MAJORITY IS A REASONABLE SUBSTITUTE FOR FULL ACCESS TO A
MISTRIAL TRANSCRIPT.  ACCORDINGLY, I WOULD HOLD UNDER THE GRIFFIN
ROBERTS-WILSON LINE OF AUTHORITY THAT BRITT HAS BEEN DENIED EQUAL
PROTECTION OF THE LAW.  /15/ 

I WOULD REVERSE THE JUDGMENT BELOW. 

/1/  WADE V. WILSON, 396 U.S. 282 (1970); GARDNER V. CALIFORNIA, 393
U.S. 367 (1969); ROBERTS V. LAVALLEE, 389 U.S. 40 (1967[; LONG V.
DISTRICT COURT OF IOWA, 385 U.S. 192 (1966); DRAPER V. WASHINGTON, 372
U.S. 487 (1963); ESKRIDGE V. WASHINGTON PRISON BOARD, 357 U.S. 214
(1958); ROSS V. SCHNECKLOTH, 357 U.S. 575 (1958); PEOPLE V. MONTGOMERY,
18 N.Y.2D 993, 224 N.E.2D 730 (1966).  AN INDIGENT'S RIGHT TO A
TRANSCRIPT OF GRAND JURY TESTIMONY IN THE FEDERAL COURTS IS NOW
PROTECTED BY THE CRIMINAL JUSTICE ACT OF 1964, AT LEAST TO THE EXTENT
THAT ANY DEFENDANT-- WHETHER RICH OR POOR-- HAS ACCESS THERETO.  18
U.S.C. 3006AE)(1).  IN THE SECOND AND SEVENTH CIRCUITS FEDERAL
DEFENDANTS HAVE ABSOLUTE RIGHTS TO ALL GRAND JURY MINUTES.  UNITED
STATES V. YOUNGBLOOD, 379 F.2D 365 (CA2 1967); UNITED STATES V.
AMABILE, 395 F.2D 47, 53 (CA7 1968).  AND IN ALL OTHER CIRCUITS THE
GRAND JURY TESTIMONY OF AN INDIVIDUAL PROSECUTION WITNESS IS
DISCOVERABLE UNDER THE RECENT AMENDMENTS TO THE JENCKS ACT.  18 U.S.C.
3500(E)(3). 

/2/  BODDIE V. CONNECTICUT, 401 U.S.C. 371 (1971); SMITH V. BENNETT,
365 U.S. 708 (1961); BURNS V. OHIO, 360 U.S. 252 (1959). 

/3/  ANDERS V. CALIFORNIA, 386 U.S. 738 (1967); SWENSON V. BOSLER,
386 U.S. 258 (1967); DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963); SEE
ALSO GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963). 

THESE TWO REASONS WERE OFFERED BY THE SECOND CIRCUIT TO EXPLAIN WHY A
MISTRIAL TRANSCRIPT MIGHT BE USEFUL.  UNITED STATES EX REL. WILSON V.
MCMANN, 408 F.2D 896 (CA2 1969).  OUR DISCUSSION IN ROBERTS DID NOT
SUGGEST ANY WAYS IN WHICH THE TRANSCRIPT OF THE PRETRIAL HEARING MIGHT
HAVE BEEN USEFUL, ALTHOUGH OUR PER CURIAM INTIMATED THAT PERHAPS
COUNSEL DESIRED TO HAVE A CHECK AGAINST THE TESTIMONY OF A KEY WITNESS,
ROBERTS V. LAVALLEE, SUPRA, AT 41; NOR DID THE SECOND CIRCUIT'S
DISCUSSION OF THE ISSUE, UNITED STATES EX REL. ROBERTS V. LAVALLEE, 373
F.2D (CA2 1967). 

/5/  NICKENS V. UNITED STATES, 116 U.S.APP.D.C. 338, 323 F.2D 808
(1963), WAS DECIDED BEFORE THE FULL DEVELOPMENT OF OUR TRANSCRIPT
CASES.  THE MAJORITY OPINION IN NICKENS GAVE THE OTHER ISSUES IN THE
CASE MORE PLENARY CONSIDERATION.  JUDGE WRIGHT CONCURRED IN THE
MAJORITY'S VIEW THAT NO TRANSCRIPT HAD BEEN REQUIRED BUT ONLY BECAUSE
HE BELIEVED A MOTION TO OBTAIN A TRANSCRIPT HAD NOT BEEN PROPERLY
RAISED.  ID., AT 345, 323 F.2D, AT 815.  ALSO CITED IN THE NORTH
CAROLINA OPINION WAS FORSBERG V. UNITED STATES, 351 F.2D 242 (CA9
1965), ALSO A PRE-ROBERTS OPINION, WHICH RELIED SOLELY ON NICKENS IN
DENYING A MISTRIAL TRANSCRIPT TO AN INDIGENT.  ID., AT 248. 

/6/  PROFESSOR ROBERT KEETON NOTES THAT IN CIVIL CASES INVOLVING
LARGE AMOUNTS OF MONEY IT IS STANDARD PRACTICE FOR LAWYERS TO PLACE "A
STANDING ORDER WITH THE REPORTER FOR 'DAILY COPY' OF THE TRIAL
PROCEEDINGS."  R. KEETON, TRIAL TACTICS AND METHODS 104 (1954). 
PRESUMABLY WHEN WEALTHY CLIENTS ARE HALED BEFORE CRIMINAL COURTS RATHER
THAN BEFORE CIVIL ONES, THEIR ATTORNEYS LIKEWISE PLACE SUCH STANDING
ORDERS. 

/7/  THE EXCESSIVE DISPARITY BETWEEN THE STATE AND THE ACCUSED IN
THEIR RESPECTIVE INVESTIGATIVE RESOURCES, AND THE COMMON LAW'S
PROHIBITION AGAINST DISCOVERY HAVE BEEN SUMMARIZED AS FOLLOWS BY ONE
COMMENTATOR"     "(THE LAW ENFORCEMENT AGENCY IS OFTEN AT THE SCENE OF
THE CRIME SHORTLY AFTER ITS COMMISSION.  WHILE AT THE SCENE, THE POLICE
HAVE BETTER ACCESS TO WITNESSES WITH FRESHER RECOLLECTIONS.  THEY ARE
AUTHORIZED TO CONFISCATE REMOVABLE EVIDENCE.  IN ADDITION, THE
FINANCIAL AND INVESTIGATORY RESOURCES OF LAW ENFORCEMENT AGENCIES
PERMIT AN EXTENSIVE ANALYSIS OF ALL RELEVANT EVIDENCE. 

"THE DEFENDANT HAS THE OPTION OF HIRING A PRIVATE INVESTIGATOR. 
HOWEVER, THE INVESTIGATOR WILL PROBABLY GET TO THE SCENE LONG AFTER THE
OCCURRENCE OF THE CRIME AND AFTER THE POLICE HAVE MADE THEIR
INVESTIGATION AND REMOVED ALL RELEVANT PHYSICAL EVIDENCE.  THE
DEFENDANT'S INVESTIGATOR MAY HAVE DIFFICULTY VIEWING THE SCENE IF IT IS
ON PRIVATE PROPERTY.  WITNESSES MAY BE LESS ACCESSIBLE; THEIR
RECOLLECTIONS WILL PROBABLY BE LESS PRECISE.  INDEED THEY MAY CHOOSE
NOT TO COOPERATE AT ALL WITH THE DEFENDANT'S INVESTIGATOR.  HOWEVER, IT
MAY ALL BE IRRELEVANT IF, AS IS OFTEN THE CASE, THE DEFENDANT IS UNABLE
TO AFFORD AN INVESTIGATOR OR IS INCARCERATED PENDING TRIAL. 

"THE DEFENDANT IS HELPLESS TO COPE WITH THE UNCOOPERATIVE WITNESS
WHILE THE PROSECUTOR HAS NUMEROUS MEANS TO COMPEL TESTIMONY.  FIRST,
THERE IS THE POSSIBILITY OF (A) CORONER'S INQUEST OR A PRELIMINARY
HEARING.  AND IF THE PROSECUTION PREFERS NOT TO HAVE THE DEFENSE
PRESENT, SOME JURISDICTIONS ALLOW THE PROSECUTION TO TAKE TESTIMONY
WHILE THE DEFENDANT AND HIS ATTORNEY ARE EXCLUDED.  THE UNCOOPERATIVE
WITNESS CAN BE SUBPOENAED TO APPEAR BEFORE THE GRAND JURY AND REQUIRED
TO TESTIFY, AGAIN WITHOUT THE PRESENCE OF THE DEFENSE.  THE DEFENSE
CANNOT, USUALLY, DISCOVER THE GRAND JURY MINUTES. 

"MANY STATES REQUIRE THAT THE DEFENDANT GIVE NOTICE OF INTENDED
ALIBI OR INSANITY DEFENSES.  THE PROSECUTION'S BURDEN, IN BRINGING A
CHARGE, IN CONTRAST, HAS BEEN SUBSTANTIALLY LESSENED.  MERE RECITATION
OF THE STATUTE MAY BE A SUFFICIENT PLEADING OF THE CHARGE.  AMENDMENTS
TO THE INDICTMENT OR INFORMATION ARE LIBERALLY ALLOWED; DUPLICITY AND
VARIANCES ARE NO LONGER SERIOUS DEFECTS.  LIBERAL PLEADING RULES
DEPRIVE THE DEFENDANT OF EFFECTIVE NOTICE OF THE CIRCUMSTANCES OF THE
OFFENSE."  NORTON, DISCOVERY IN THE CRIMINAL PROCESS, 61 J.CRIM.L.C. &
P.S. 11, 13-14 (1970). 

SEE GENERALLY HANDZEL, CRIMINAL LAW: PRE-TRIAL DISCOVERY-- THE RIGHT
OF AN INDIGENT'S COUNSEL TO INSPECT POLICE REPORTS, 14 ST. LOUIS U.L.J.
310 (1969); MOORE, CRIMINAL DISCOVERY, 19 HASTINGS L.J.865 (1968); A
STATE STATUTE TO LIBERALIZE CRIMINAL DISCOVERY, 4 HARV. J. LEGIS.  105
(1967).  (1967).  COMMENT, DISCLOSURE AND DISCOVERY IN CRIMINAL CASES:
WHERE ARE WE HEADED?, 6 DUQUESNE U.L.REV.  41 (1967); GOLDEN & PALIK,
BIBLIOGRAPHY:  CRIMINAL DISCOVERY, 5 TULSA L.J. 207 (1968); SYMPOSIUM:
DISCOVERY IN FEDERAL CRIMINAL CASES, 33 F.R.D. 47 (1963); BRENNAN,
CRIMINAL PROSECUTION:  SPORTING EVENT OR QUEST FOR TRUTH?, 1963 WASH.
U.L.Q. 279. 

/8/  SEE FED. RULES CRIM. PROC. 15-17.  SEE ALSO NOTE, DISCOVERY
PROCEDURES UNDER NEW YORK'S NEW CRIMINAL PROCEDURE LAW, 38 BROOKLYN
L.REV.  164 (1971); RIGHT OF ACCUSED IN STATE COURTS TO INSPECTION OR
DISCLOSURE OF EVIDENCE IN POSSESSION OF PROSECUTION, 7 A.L.R.3F 8
(1966). 

/9/  STATUTORY EXCEPTIONS TO THE COMMON-LAW BAN IN NORTH CAROLINA
MAY BE FOUND AT N.C. GEN. STAT. SEC. 8-74 (1969) (DEPOSITIONS OF
WITNESSES UNABLE TO ATTEND TRIAL); AND AT SEC. 15-155.4 (SUPP. 1969). 
THE LATTER PROVISION WAS ENACTED IN 1967 AND PERMITS LIMITED DISCOVERY
OF PROSECUTION EVIDENCE WHERE (A) GOOD CAUSE IS SHOWN FOR DISCOVERY,
(B) THE PROSECUTION INTENDS TO USE THE EVIDENCE AT TRIAL.  THE LATTER
CONDITION WOULD EFFECTIVELY PREVENT DEFENDANTS' DISCOVERY OF EVIDENCE
WHICH MIGHT BE FAVORABLE.  THE ONLY REPORTED DECISIONS CONSIDERING THIS
ADDITION ARE THOSE IN STATE V. MACON, 276 N.C. 466, 173 S.E.2D 286
(1970), AFFIRMING 6 N.C.APP.  245, 170 S.E.2D 144 (1969), UPHOLDING THE
REFUSAL OF A TRIAL COURT TO PERMIT AN ACCUSED'S INSPECTION OF NOTES
WHICH HAD BEEN MADE BY A SPECIFIED POLICE OFFICER DURING THE ACCUSED'S
INTERROGATION. 

/10/  N.C. GEN. STAT. C. 1A (1969). 

/11/  THE CELEBRATED OPINIONS IN STATE V. TUNE, 13 N.J. 203, 98 A.2D
881 (1953), CONTAIN A VIGOROUS DISSENT BY JUSTICE (NOW MR. JUSTICE)
BRENNAN WHO EXPRESSED REGRET OVER THE MAJORITY'S DISREGARD OF THE
SUCCESSFUL IMPLEMENTATION OF LIBERAL DISCOVERY IN CIVIL MATTERS. 

/12/  IN ANOTHER NORTH CAROLINA RETRIAL SITUATION CONSIDERED IN
STATE V. OVERMAN, 269 N.C. 453, 153 S.E.2D 44 (1967), AN ACCUSED
RAPIST'S PRETRIAL REQUEST FOR DETAILS CONCERNING THE EVIDENCE TO BE
PRESENTED AGAINST HIM WAS DENIED ON THE GROUND THAT HE COULD SIMPLY
STUDY A TRANSCRIPT OF HIS PRIOR ACQUITTAL OF A KIDNAPING CHARGE ARISING
OUT OF THE SAME TRANSACTION. 

/13/  THE MOST COMPREHENSIVE AND RECENT STATEMENT OF CRIMINAL
DISCOVERY IN NORTH CAROLINA IS A LOOK AT NORTH CAROLINA'S CRIMINAL
DISCOVERY SYSTEM PREPARED FOR NORTH CAROLINA GOVERNOR'S COMMITTEE ON
LAW AND ORDER, TASK FORCE ON ARREST AND APPREHENSION, A. PYE, CHMN. 
(1970):  "VERY LITTLE USE IS BEING MADE OF THE NEW (1967) CRIMINAL
DISCOVERY STATUTE (G.S. 15-155) WHICH IS RESULTING IN A PAUCITY OF
CASES DEALING WITH THE EXTENT TO WHICH IT ALLOWS DISCOVERY.  IT IS
UNCLEAR WHETHER THE ATTORNEYS ARE NOT AWARE OF THE STATUTE OR WHETHER
THEY FEEL THAT THERE IS LITTLE USE IN FILING A MOTION UNDER IT . . . .
INDICATIONS ARE THAT BOTH THESE REASONS HAVE VITALITY," ID., AT 14-15. 
IT CONTINUES: 

"THERE IS A STRONG POSSIBILITY THAT SOLICITORS (CONSCIOUSLY OR
UNCONSCIOUSLY) WITHHOLD EVIDENCE FAVORABLE TO THE DEFENDANT . . . . "
ID., AT 16. 

IN ADDITION TO THE DISCUSSION OF SUCH PROCEDURES IN STATE V.
GOLDBERG, 261 N.C. 181, 134 S.E.2D 334 (1964), SEE STATE V. HAMILTON,
264 N.C. 277, 141 S.E.2D 506 (1965) (ACCESS TO POLICE REPORTS AND NOTES
DENIED); STATE V. OVERMAN, SUPRA, AT 468, 153 S.E.2D,AT 57; SEE ALSO
GOLDMAN V. UNITED STATES, 316 U.S. 129 (1942), CITED WITH APPROVAL IN
GOLDBERG, SUPRA, AT 191, 134 S.E.2D,AT 341, HOLDING THAT A DEFENDANT
HAS NO RIGHT TO INSPECT MEMORANDA USED BY PROSECUTION WITNESSES TO
REFRESH THEIR MEMORIES.  SEE GENERALLY THE RESTATEMENT OF THE COMMON
LAW RULES OF DISCOVERY, CITED BY THE GOLDBERG COURT, SUPRA, AT 191, 134
S.E.2D,AT 340, IN 23 C.J.S., CRIMINAL LAW SECS. 955(1) AND (2). 

/14/  SEE PYLE V. KANSAS, 317 U.S. 213 (1942); JENCKS V. UNITED
STATES, 353 U.S. 657, 668 (1957); BRADY V. MARYLAND, 373 U.S. 83
(1963).  IN DENNIS V. UNITED STATES, 384 U.S. 855, 873 (1966), WE
REQUIRED A TRIAL COURT TO ALLOW INSPECTION BY A DEFENDANT OF GRAND JURY
MINUTES, REASONING THAT:  "IN OUR ADVERSARY SYSTEM FOR DETERMINING
GUILT OR INNOCENCE, IT IS RARELY JUSTIFIABLE FOR THE PROSECUTION TO
HAVE EXCLUSIVE ACCESS TO A STOREHOUSE OF RELEVANT FACT." 

/15/  THE MAJORITY DOES NOT DISAGREE THAT UNDER ORDINARY
CIRCUMSTANCES BRITT WOULD HAVE BEEN DENIED EQUAL PROTECTION OF THE
LAWS.  THE MAJORITY, HOWEVER, DISTINGUISHES BRITT'S CASE FROM THE
ROUTINE CASE BECAUSE HE WAS TRIED IN A SMALL TOWN WHERE DEFENSE COUNSEL
WAS WELL ACQUAINTED WITH THE COURT REPORTER.  COUNSEL, REASONS THE
COURT, OUGHT TO HAVE PREVAILED UPON THE REPORTER BETWEEN TRIALS TO
ASSIST IN HIS MAKING NOTES OF THE FIRST TRIAL.  I BELIEVE THAT THESE
KINDS OF FORTUITIES OUGHT NOT TO BE DETERMINATIVE OF CONSTITUTIONAL
GUARANTEES, ESPECIALLY WHERE IT MAY BE DIFFICULT AFTERWARDS TO
ESTABLISH THE NATURE OF SUCH ALLEGED RELATIONSHIPS. 

ROBERT G. BOWERS ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

CHRISTINE Y. DENSON, ASSISTANT ATTORNEY GENERAL OF NORTH CAROLINA,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HER ON THE BRIEF WAS ROBERT
MORGAN, ATTORNEY GENERAL. 
..END :






NLRB V. NASH-FINCH CO., 404 U.S. 138 


       NATIONAL LABOR RELATIONS BOARD V. NASH-FINCH CO., DBA JACK &

           JILL STORES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 70-93.  ARGUED OCTOBER 19, 1971-- DECIDED DECEMBER 8,

           1971 


A UNION WHICH HAD BEGUN ORGANIZING RESPONDENT COMPANY'S EMPLOYEES
CHARGED THE COMPANY WITH UNFAIR LABOR PRACTICES.  THE GENERAL COUNSEL
OF THE NATIONAL LABOR RELATIONS BOARD (NLRB) ISSUED A COMPLAINT, WHICH
A TRIAL EXAMINER SUSTAINED, RECOMMENDING THAT RESPONDENT BE ORDERED TO
CEASE AND DESIST FROM SUCH PRACTICES.  BEFORE THE NLRB ACTED, THE UNION
PICKETED RESPONDENT'S STORES AND RESPONDENT, CONTENDING THAT THE
UNION'S ACTION VIOLATED STATE LAW, SOUGHT AND OBTAINED AN INJUNCTION
FROM A STATE COURT LIMITING THE UNION'S PICKETING ACTIVITIES. 
SUBSEQUENTLY THE NLRB ISSUED AN ORDER ACCEPTING THE TRIAL EXAMINER'S
RECOMMENDATIONS AND THEN BROUGHT THIS ACTION IN DISTRICT COURT TO
RESTRAIN ENFORCEMENT OF THE STATE COURT INJUNCTION ON THE GROUND THAT
IT REGULATED CONDUCT GOVERNED EXCLUSIVELY BY THE NATIONAL LABOR
RELATIONS ACT.  THE DISTRICT COURT HELD THAT IT WAS PRECLUDED FROM
GRANTING RELIEF BY 28 U.S.C. 2283, WHICH PROHIBITS A FEDERAL COURT FROM
ENJOINING STATE COURT PROCEEDINGS EXCEPT AS AUTHORIZED BY ACT OF
CONGRESS "OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS."  THE COURT REJECTED THE CONTENTION THAT
THE NLRB WAS WITHIN THE EXCEPTION RECOGNIZED IN LEITER MINERALS, INC.
V. UNITED STATES 352 U.S. 220, FOR SUITS BROUGHT BY THE UNITED STATES. 
THE COURT OF APPEALS AFFIRMED, HOLDING THAT FOR PURPOSES OF 2283, THE
NLRB IS "AN ADMINISTRATIVE AGENCY OF THE UNITED STATES, AND IS NOT THE
UNITED STATES."  HELD: 

1.  SINCE THE ACTION HERE DOES NOT SEEK TO RESTRAIN UNFAIR LABOR
PRACTICES AGAINST WHICH THE NLRB HAD ISSUED ITS COMPLAINT BUT IS BASED
ON THE GENERAL DOCTRINE OF PRE-EMPTION, THE EXCEPTION IN SEC. 2283 FOR
MATTERS "NECESSARY IN AID OF ITS JURISDICTION" IS INAPPLICABLE. 
CAPITAL SERVICE, INC. V. NLRB, 347 U.S. 501, DISTINGUISHED.  PP. 141
142. 

2.  FOR THE PURPOSE OF PREVENTING FRUSTRATION OF THE NATIONAL LABOR
RELATIONS ACT, THE NLRB HAS AN IMPLIED AUTHORITY TO OBTAIN A FEDERAL
INJUNCTION AGAINST STATE COURT ACTION PRE-EMPTED BY THE ACT; SUCH AN
INJUNCTION FALLS WITHIN THE EXCEPTION TO SEC. 2283 RECOGNIZED IN LEITER
MINERALS, INC., SUPRA, FOR SUITS BROUGHT BY THE UNITED STATES, AND THE
FACT THAT THE PARTY MOVING FOR AN INJUNCTION IS A FEDERAL AGENCY AND
NOT THE ATTORNEY GENERAL IS IRRELEVANT.  BOWLES V. WILLINGHAM, 321 U.S.
503.  PP. 142-148. 

434 F.2D 971, REVERSED AND REMANDED. 

DOUGLAS J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED.  WHITE, J., FILED
A DISSENTING OPINION, POST, P. 148, IN PART I OF WHICH BRENNAN, J.,
JOINED, POST, P. 156. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

TITLE 28 U.S.C. 2283 PROVIDES: 

     "A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO

  STAY PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED

  BY ACT OF CONGRESS, OR WHERE NECESSARY IN AID OF ITS

  JURISDICTION, OR TO PROTECT OR EFFECTUATE ITS JUDGMENTS." 

THE QUESTION IS WHETHER THE NATIONAL LABOR RELATIONS BOARD MAY,
THROUGH PROCEEDINGS IN A FEDERAL COURT, ENJOIN A STATE COURT ORDER
WHICH REGULATES PEACEFUL PICKETING GOVERNED BY THE FEDERAL AGENCY.  THE
DISTRICT COURT REJECTED THE BOARD'S CONTENTION THAT IT IS WITHIN THE
EXCEPTION TO SEC. 2283, /1/  RECOGNIZED IN LEITER MINERALS, INC. V.
UNITED STATES.  THE COURT OF APPEALS AFFIRMED.  434 F.2D 971.  THE CASE
IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED, 402
U.S. 928. 

WHEN A UNION BEGAN ORGANIZING EMPLOYEES OF CERTAIN STORES IN GRAND
ISLAND, NEBRASKA, THE UNION FILED UNFAIR STORES IN GRAND ISLAND,
NEBRASKA, THE UNION FILED UNFAIR LABOR PRACTICE CHARGES AGAINST THE
COMPANY.  THE GENERAL COUNSEL ISSUED A COMPLAINT.  A HEARING WAS HELD
AND A TRIAL EXAMINER SUSTAINED THE COMPLAINT AND RECOMMENDED THAT THE
COMPANY CEASE AND DESIST.  SHORTLY THEREAFTER AND BEFORE THE BOARD HAD
ACTED, THE UNION PICKETED THE STORES.  THE COMPANY THEREUPON PETITIONED
THE NEBRASKA STATE COURT FOR AN INJUNCTION.  THE STATE COURT ISSUED A
RESTRAINING ORDER, LIMITING THE PICKETS TO TWO AT EACH STORE, ENJOINING
THEM FROM BLOCKING OR PICKETING ENTRANCES OR EXITS AND FROM
DISTRIBUTING LITERATURE PERTAINING TO THE DISPUTE WHICH WOULD HALT OR
SLOW TRAFFIC, FROM INSTIGATING CONVERSATIONS WITH CUSTOMERS IN ANY
MANNER RELATING TO THE DISPUTE, FROM MASS PICKETING, FROM ACTS OF
PHYSICAL COERCION AGAINST PERSONS DRIVING TO WORK, AND FROM DOING ANY
ACT IN VIOLATION OF NEB. REV. STAT. SEC. 28-812, WHICH MAKES UNLAWFUL
"LOITERING ABOUT, PICKETING OR PATROLLING THE PLACE OF WORK . . .
AGAINST THE WILL OF SUCH PERSON."  THE INJUNCTION ALSO BANS ANYONE
OTHER THAN A BONA FIDE UNION MEMBER FROM PICKETING UNLESS HE BECOMES A
DEFENDANT IN THE STATE THAN PICKETS AND NAMED DEFENDANTS, FROM
PICKETING, DISTRIBUTING HANDBILLS, OR OTHERWISE "CAUSING) TO BE
PUBLISHED OR BROADCAST ANY INFORMATION PERTAINING TO THE DISPUTE . . .
BETWEEN THE PARTIES." 

LATER THE BOARD ENTERED ITS DECISION AND ORDER ACCEPTING IN PART THE
TRIAL EXAMINER'S RECOMMENDATIONS AND REJECTING PARTS NOT MATERIAL TO
THE PRESENT CONTROVERSY. 

THE BOARD THEN FILED THIS SUIT IN THE FEDERAL DISTRICT COURT SEEKING
TO RESTRAIN THE ENFORCEMENT OF THE STATE COURT INJUNCTION ON THE GROUND
THAT IT REGULATED CONDUCT WHICH WAS GOVERNED EXCLUSIVELY BY THE
NATIONAL LABOR RELATIONS ACT.  AS NOTED, BOTH THE DISTRICT COURT AND
THE COURT OF APPEALS DENIED THE BOARD RELIEF.  THE COURT OF APPEALS
HELD THAT FOR THE PURPOSES OF SEC. 2283 THE BOARD IS "AN ADMINISTRATIVE
AGENCY OF THE UNITED STATES, AND IS NOT THE UNITED STATES."  434
F.2D,AT 975.  CONGRESS FROM THE BEGINNING HAS RESTRICTED THE AUTHORITY
OF THE FEDERAL JUDICIARY TO INTERFERE WITH STATE COURT ACTIONS.  SEE
YOUNGER V. HARRIS, 401 U.S. 37, 43-44.  THE PRESENT SEC. 2283 IS A
REVISION OF EARLIER PROVISIONS OF FEDERAL STATUTES WHICH WERE CONSTRUED
TO ALLOW WITHIN LIMITS SUCH FEDERAL INJUNCTIONS IN FAVOR OF FEDERAL
AGENCIES.  BOWLES V. WILLINGHAM, 321 U.S. 503, 510.  ANY EXCEPTION IN
FAVOR OF FEDERAL AGENCIES MUST, HOWEVER, BE "IMPLIED," IBID., UNLESS IT
COMES WITHIN THE EXCEPTIONS STATED IN SEC. 2283. 

IT IS SUGGESTED THAT THIS FEDERAL INJUNCTION WAS "IN AID" OF THE
JURISDICTION OF THE FEDERAL COURT SINCE THE SUIT IS IN THE DISTRICT
COURT BY REASON OF 28 U.S.C. 1337 WHICH GRANTS JURISDICTION OVER "ANY
CIVIL ACTION OR PROCEEDING ARISING UNDER ANY ACT OF CONGRESS REGULATING
COMMERCE."  IN CAPITAL SERVICE, INC. V. NLRB, 347 U.S. 501, AN EMPLOYER
INVOKED THE AID BOTH OF A STATE COURT AND OF THE FEDERAL BOARD AGAINST
PICKETING.  THE BOARD SOUGHT A FEDERAL COURT INJUNCTION UNDER SEC.
10(1) OF THE ACT, 29 U.S.C. 160(L), WHICH SPECIFICALLY ALLOWS IT
WHEREVER AN UNFAIR LABOR PRACTICE RESPECTING A SECONDARY BOYCOTT OR
PICKETING VIOLATIVE OF SEC. 8(B)(4) OR SEC. 8(B)(7) OF THE ACT IS
INVOLVED.  WE RULED THAT THE STATE INJUNCTION "RESTRAINS CONDUCT WHICH
THE DISTRICT COURT WAS ASKED TO ENJOIN IN THE SEC. 10(1) PROCEEDING." 
ID., AT 505.  WE HELD THAT UNDER THOSE CIRCUMSTANCES AN INJUNCTION BY
THE FEDERAL COURT WAS "NECESSARY IN AID OF ITS JURISDICTION" OVER
COMMERCE, BECAUSE THE FEDERAL COURT TO EXERCISE ITS JURISDICTION
"FREELY AND FULLY" MUST "FIRST REMOVE THE STATE DECREE."  ID., AT 506. 

IN THE INSTANT CASE THE COMPANY DID NOT FILE ANY CHARGES WITH THE
BOARD WHICH CLAIMED THAT THE UNION'S PICKETING VIOLATED SEC. 8(B)(4) OR
SEC. 8(B)(7) OF THE ACT, 73 STAT. 542 AND 544, 29 U.S.C. 158(B)(4) AND
158(B)(7). 

OF AN UNFAIR LABOR PRACTICE OF THE EMPLOYER UNDER SEC. 8(A)(1) OF THE
ACT WHICH PROTECTS THE RIGHT OF EMPLOYEES TO ORGANIZE.  BUT A RESORT TO
COURT ACTION, THE BOARD HAS HELD, DOES NOT VIOLATE SEC. 8(A)(1).  SEE
CLYDE TAYLOR CO., 127 N.L.R.B. 103, 109. 

THE ACTION IN THE INSTANT CASE DOES NOT SEEK AN INJUNCTION TO RESTRAIN
SPECIFIC ACTIVITIES UPON WHICH THE BOARD HAS ISSUED A COMPLAINT BUT IS
BASED UPON THE GENERAL DOCTRINE OF PRE-EMPTION.  WE THEREFORE DO NOT
BELIEVE THIS CASE FALLS WITHIN THE NARROW EXCEPTION CONTAINED IN SEC.
2283 FOR MATTERS "NECESSARY IN AID OF ITS JURISDICTION."  THERE IS IN
THE ACT NO EXPRESS AUTHORITY FOR THE BOARD TO SEEK INJUNCTIVE RELIEF
AGAINST PRE-EMPTED STATE ACTION.  THE QUESTION REMAINS WHETHER THERE IS
IMPLIED AUTHORITY TO DO SO. 

IT HAS LONG BEEN HELD THAT THE BOARD, THOUGH NOT GRANTED EXPRESS
STATUTORY REMEDIES, MAY OBTAIN APPROPRIATE AND TRADITIONAL ONE TO
PREVENT FRUSTRATION OF THE PURPOSES OF THE ACT.  WE HELD IN IN RE
NATIONAL LABOR RELATIONS BOARD, 304 U.S. 486, 496, THAT EVEN IN THE
ABSENCE OF AN EXPRESS STATUTORY REMEDY, THE BOARD MIGHT PETITION FOR
WRIT OF PROHIBITION AGAINST PREMATURE INVOCATION OF THE REVIEW
JURISDICTION OF THE COURT OF APPEALS.  IN AMALGAMATED WORKERS V. EDISON
CO., 309 U.S. 261, WE HELD THAT THE BOARD HAD IMPLIED AUTHORITY TO
INSTITUTE CONTEMPT PROCEEDINGS FOR VIOLATION OF COURT DECREES ENFORCING
ORDERS OF THE BOARD.  IN NATHANSON V. NLRB, 344 U.S. 25, WE FOUND AN
IMPLIED AUTHORITY OF THE BOARD TO FILE CLAIMS IN BANKRUPTCY COVERING
THE SUMS INCLUDED IN ITS BACK-PAY AWARDS.  THE CLAIMS WERE NOT GIVEN
PRIORITY UNDER SEC. 64(A)(5) OF THE BANKRUPTCY ACT, BUT THIS WAS
BECAUSE "THE UNITED STATES (WAS) COLLECTING FOR THE BENEFIT OF A
PRIVATE PARTY," ID., AT 28, NOT AS SUGGESTED, POST, AT 149, BECAUSE THE
BOARD'S JURIDICAL STATUS WAS SOMETHING LESS THAN THAT OF THE UNITED
STATES.  /2/ 

WE CONCLUDE THAT THERE IS ALSO AN IMPLIED AUTHORITY OF THE BOARD, IN
SPITE OF THE COMMAND OF SEC. 2283, TO ENJOIN STATE ACTION WHERE ITS
FEDERAL POWER PRE-EMPTS THE FIELD.  OUR STARTING POINT IS CONTAINED IN
THE OBSERVATION OF MR. CHIEF JUSTICE HUGHES IN AMALGAMATED WORKERS V.
EDISON CO., SUPRA, AT 265. 

"THE BOARD AS A PUBLIC AGENCY ACTING IN THE PUBLIC INTEREST, NOT ANY
PRIVATE PERSON OR GROUP, NOT ANY EMPLOYEE OR GROUP OF EMPLOYEES, IS
CHOSEN AS THE INSTRUMENT TO ASSURE PROTECTION FROM THE DESCRIBED UNFAIR
CONDUCT IN ORDER TO REMOVE OBSTRUCTIONS TO INTERSTATE COMMERCE." 

THE PURPOSE OF THE ACT WAS TO OBTAIN "UNIFORM APPLICATION" OF ITS
SUBSTANTIVE RULES AND TO AVOID THE "DIVERSITIES AND CONFLICTS LIKELY TO
RESULT FROM A VARIETY OF LOCAL PROCEDURES AND ATTITUDES TOWARD LABOR
CONTROVERSIES."  GARNER V. TEAMSTERS UNION, 346 U.S. 485, 490.  THE
FEDERAL REGULATORY SCHEME (1) PROTECTS SOME ACTIVITIES, THOUGH NOT
VIOLENCE (SEE UNITED MINE WORKERS V. GIBBS, 383 U.S. 715, 729-731), (2)
PROHIBITS SOME PRACTICES, AND (3) LEAVES OTHERS TO BE CONTROLLED BY THE
FREE PLAY OF ECONOMIC FORCES.  WE SAID IN GARNER V. TEAMSTERS UNION,
SUPRA, AT 500: 

"FOR A STATE TO IMPINGE ON THE AREA OF LABOR COMBAT DESIGNED TO BE
FREE IS QUITE AS MUCH AN OBSTRUCTION OF FEDERAL POLICY AS IF THE STATE
WERE TO DECLARE PICKETING FREE FOR PURPOSES OR BY METHODS WHICH THE
FEDERAL ACT PROHIBITS." 

IN LEITER MINERALS, INC. V. UNITED STATES, 352 U.S. 220, A STATE
SUIT OVER MINERAL RIGHTS IN PUBLIC LANDS WAS PENDING, THE PARTIES BEING
PRIVATE PERSONS.  THE UNITED STATES BROUGHT SUIT IN THE FEDERAL COURT
TO QUIET TITLE TO THE MINERAL RIGHTS AND SOUGHT AND OBTAINED A FEDERAL
INJUNCTION AGAINST PROSECUTION OF THE STATE PROCEEDING.  IN HOLDING
THAT SEC. 2283 IMPLIEDLY ALLOWED SUCH AN EXCEPTION WE SAID: 

"THE STATUTE IS DESIGNED TO PREVENT CONFLICT BETWEEN FEDERAL AND
STATE COURTS.  THIS POLICY IS MUCH MORE COMPELLING WHEN IT IS THE
LITIGATION OF PRIVATE PARTIES WHICH THREATENS TO DRAW THE TWO JUDICIAL
SYSTEMS INTO CONFLICT THAN WHEN IT IS THE UNITED STATES WHICH SEEKS A
STAY TO PREVENT THREATENED IRREPARABLE INJURY TO A NATIONAL INTEREST. 
THE FRUSTRATION OF SUPERIOR FEDERAL INTERESTS THAT WOULD ENSUE FROM
PRECLUDING THE FEDERAL GOVERNMENT FROM OBTAINING A STAY OF STATE COURT
PROCEEDINGS EXCEPT UNDER THE SEVERE RESTRICTIONS OF 28 U.S.C. 2283
WOULD BE SO GREAT THAT WE CANNOT REASONABLY IMPUTE SUCH A PURPOSE TO
CONGRESS FROM THE GENERAL LANGUAGE OF 28 U.S.C. 2283 ALONE."  ID., AT
225-226.  IN LEITER, THE UNITED STATES BROUGHT SUIT UNDER THE AUTHORITY
OF THE ATTORNEY GENERAL.  HERE IT IS THE BOARD THAT MOVED TO PREVENT
"IRREPARABLE INJURY TO A NATIONAL INTEREST."  THE BOARD IS THE SOLE
PROTECTOR OF THE "NATIONAL INTEREST"  /3/  DEFINED WITH PARTICULARITY
IN THE ACT.  LEITER, OF COURSE, WAS INITIATED BY THE ATTORNEY GENERAL;
BUT UNDERLYING THE CONTROVERSY WERE FEDERAL AGENCIES IN THE DEPARTMENT
OF THE INTERIOR RESPONSIBLE FOR ADMINISTRATION OF THE PUBLIC LANDS. 
THE FACT THAT THE MOVING PARTY WAS A FEDERAL AGENCY, NOT THE ATTORNEY
GENERAL, WAS CONSIDERED IRRELEVANT IN BOWLES V. WILLINGHAM, SUPRA,
WHERE THE ADMINISTRATOR OF THE EMERGENCY PRICE CONTROL ACT SUED TO
ENJOIN A STATE COURT FROM INTERFERING WITH ORDERS OF THE FEDERAL
AGENCY.  AN EXCEPTION FROM THE GENERAL BAN ON FEDERAL INJUNCTIONS
AGAINST STATE COURT ACTION WAS IMPLIED BY REASON OF THE FACT THAT THE
METHOD OF REVIEW OF THE ORDERS OF THE FEDERAL AGENCY WAS IN THE
EMERGENCY COURT OF APPEALS.  BUT THERE WAS NO SUGGESTION THAT SUIT BY
OR AGAINST THE ADMINISTRATOR WAS NOT A SUIT OF THE UNITED STATES.  /4/
THE PURPOSE OF SEC. 2283 WAS TO AVOID UNSEEMLY CONFLICT BETWEEN THE
STATE AND THE FEDERAL COURTS WHERE THE LITIGANTS WERE PRIVATE PERSONS,
NOT TO HAMSTRING THE FEDERAL GOVERNMENT AND ITS AGENCIES IN THE USE OF
FEDERAL COURTS TO PROTECT FEDERAL RIGHTS.  WE CAN NO MORE CONCLUDE HERE
THAN LEITER THAT A GENERAL STATUTE, LIMITING THE POWER OF FEDERAL
COURTS TO ISSUE INJUNCTIONS, HAD AS ITS PURPOSE THE FRUSTRATION OF
FEDERAL SYSTEMS OF REGULATION.  SEE BROWN V. WRIGHT, 137 F.2D 484,
488.  THE FRUSTRATION OF SUPERIOR FEDERAL INTERESTS BY THE GENERAL
LANGUAGE OF SEC. 2283 CANNOT REASONABLY BE IMPUTED.  SEE NLRB V.
SUNSHINE MINING CO., 125 F.2D 757, 762; NLRB V. NEW YORK STATE BOARD,
106 F.SUPP.  749, 752; NLRB V. INDUSTRIAL COMMISSION, 84 F.SUPP.  593,
AFF'D, 172 F.2D 389. 

THE FACT THAT THE BOARD IS GIVEN EXPRESS AUTHORITY TO SEEK
ENFORCEMENT OF ITS ORDERS IN SOME SECTIONS OF THE ACT /5/  IS NOT
PERSUASIVE THAT THE ACT EXPRESSES A POLICY TO BAR THE BOARD FROM
ENFORCING THE NATIONAL INTERESTS ON OTHER MATTERS.  THE INSTANCES WHERE
THE BOARD IS GIVEN EXPLICIT AUTHORITY TO SEEK THE AID OF FEDERAL COURTS
ARE NOT EXCLUSIVE EXAMPLES, AS WE HAVE ALREADY SHOWN.  THEY ARE ONLY
PARTICULARIZED INSTANCES OF SPECIFIC ENFORCEMENT DEVICES RELATING TO
SPECIFIED ORDERS, NOT A DENIAL BY IMPLICATION THAT THE ACT AND THE
BOARD WOULD NOT BE ENTITLED TO FEDERAL AID OR PROTECTION IN OTHER
INSTANCES, AS ILLUSTRATED BY IN RE NATIONAL LABOR RELATIONS BOARD,
SUPRA; AMALGAMATED WORKERS V. EDISON CO., SUPRA; AND NATHANSON V. NLRB,
SUPRA. THE EXCLUSIVENESS OF THE FEDERAL DOMAIN IS CLEAR; AND WHERE IT
IS A PUBLIC AUTHORITY THAT SEEKS PROTECTION OF THAT DOMAIN, THE WAY
SEEMS CLEAR.  FOR THE FEDERAL GOVERNMENT AND ITS AGENCIES, THE FEDERAL
COURTS ARE THE FORUM OF CHOICE.  FOR THEM, AS LEITER INDICATES, ACCESS
TO THE FEDERAL COURTS IS "PREFERABLE IN THE CONTEXT OF HEALTHY FEDERAL
STATE RELATIONS."  352 U.S.,AT 226. 

WHERE THERE ARE PARTS OF THE STATE COURT INJUNCTION THAT SHOULD
SURVIVE OUR REVERSAL OF THE JUDGMENT BELOW IS A QUESTION WE DO NOT
REACH.  IT WILL BE OPEN ON THE REMAND OF THE CAUSE. 

              REVERSED AND REMANDED. 

/1/  FOR THE HISTORY OF PRESENT SEC. 2283 SEE H.R. REP. NO. 308,
80TH CONG., 1ST SESS., A181. 

/2/  THE BASIS OF OUR DECISION IN NATHANSON WAS THAT "(THE PRIORITY
GRANTED BY (SEC. 64(A)(5), 11 U.S.C. 104(A)(5)) . . . WAS DESIGNED 'TO
SECURE AN ADEQUATE REVENUE TO SUSTAIN THE PUBLIC BURDENS AND DISCHARGE
THE PUBLIC DEBTS.'"  344 U.S.,AT 27-28.  BECAUSE THERE WAS "NO FUNCTION
. . . OF ASSURING THE PUBLIC REVENUE" AND "(THE BENEFICIARIES OF THE
CLAIMS (WERE) PRIVATE PERSONS," ID., AT 28, WE FOUND IT INAPPROPRIATE
TO APPLY THE PRIORITY FOR CLAIMS OWING THE UNITED STATES AND, INSTEAD,
GAVE THE CLAIMS THE SAME "TREATMENT THAT) OTHER WAGE CLAIMS ENJOYED)." 
ID., AT 29.  THE SUGGESTION THAT NATHANSON IS A STRONGER CASE FOR
EQUATING THE STATUS OF THE BOARD TO THAT OF THE UNITED STATES
DISREGARDS BOTH THE POLICIES OF THE BANKRUPTCY ACT UPON WHICH WE RELIED
IN THAT DECISION AND THE FEDERAL PRE-EMPTION WHICH INHERES IN THE
PRESENT CASE.     CASES SUCH AS RECONSTRUCTION FINANCE CORP. V. J. G.
MENIHAN CORP., 312 U.S. 81, DO NOT SUPPORT A MISERLY INTERPRETATION OF
THE BOARD'S POWERS.  THERE, WE HELD THAT COSTS OF LITIGATION COULD BE
ASSESSED AGAINST A CORPORATION WHICH CONGRESS HAD LAUNCHED INTO THE
COMMERCIAL WORLD WITH THE POWER TO "SUE AND BE SUED."  CONTRARY TO THE
DISSENT'S ASSERTION THAT THE CASE TURNED ON THE FAILURE OF CONGRESS TO
MANIFEST AN INTENT "TO BESTOW THE PRIVILEGES AND IMMUNITIES OF THE
UNITED STATES ON A FEDERAL AGENCY," POST, AT 150, OUR DECISION THERE
WAS BASED UPON THE GRANT OF "THE UNQUALIFIED AUTHORITY TO SUE AND BE
SUED (WHICH) PLACED PETITIONER UPON AN EQUAL FOOTING WITH PRIVATE
PARTIES AS TO THE USUAL INCIDENTS OF SUITS IN RELATION TO THE PAYMENT
OF COSTS AND ALLOWANCES."  312 U.S.,AT 85-86. 

/3/  AMALGAMATED CLOTHING WORKERS V. RICHMAN BROS. CO., 348 U.S.
511, HELD THAT A PRIVATE PARTY UNDER THE PROTECTION OF THE BOARD'S
ORDER COULD NOT OBTAIN INJUNCTIVE RELIEF IN A FEDERAL COURT AGAINST AN
ANTI-PICKETING ORDER ISSUED BY A STATE COURT.  AND SEE ATLANTIC COAST
LINE R. CO. V. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, 398 U.S. 281. 

/4/  ACTIONS AGAINST THE NATIONAL LABOR RELATIONS BOARD ARE
DISMISSED ON THE GROUND THAT THEY ARE AGAINST A FEDERAL AGENCY
EXERCISING A GOVERNMENTAL REGULATORY FUNCTION AND SO ARE SUITS AGAINST
THE UNITED STATES, WHICH CANNOT BE SUED WITHOUT THE CONSENT OF
CONGRESS.  CLOVER FORK COAL CO. V. NLRB, 107 F.2D 1009.  THE SAME HOLDS
FOR THE ATOMIC ENERGY COMMISSION, COTTER CORP. V. SEABORG, 370 F.2D
686; THE CIVIL SERVICE COMMISSION, SODERMAN V. U.S. CIVIL SERVICE
COMMISSION, 313 F.2D 694; THE VETERANS ADMINISTRATION, EVANS V. U.S.
VETERANS ADMIN. HOSPITAL, 391 F.2D 261; AND THE SECURITIES AND EXCHANGE
COMMISSION, HOLMES V. EDDY, 341 F.2D 477.  SIMILARLY, AN ACTION BY THE
DIRECTOR GENERAL OF RAILROADS WAS HELD TO BE ON BEHALF OF THE UNITED
STATES AND THUS WAS NOT BARRED BY THE RELEVANT STATUTE OF LIMITATIONS. 
DAVIS V. CORONA COAL CO., 265 U.S. 219. 

/5/  CONGRESS HAS VESTED THE BOARD WICH BROAD POWERS TO SEEK
INJUNCTIVE RELIEF IN THE DISTRICT COURTS.  SECTION 10(L), 29 U.S.C.
160(L), FOR EXAMPLE, GIVES THE BOARD POWER TO OBTAIN AN INJUNCTION
WHERE AN INVESTIGATION PRODUCES REASONABLE CAUSE TO BELIEVE THAT A
CHARGE OF SECONDARY BOYCOTT OR ILLEGAL PICKETING ACTIVITY IS TRUE. 
OTHER UNFAIR LABOR PRACTICES.  "IN CASE OF CONTUMACY OR REFUSAL TO OBEY
A SUBPENA ISSUED TO ANY PERSON" DURING "HEARINGS AND INVESTIGATIONS,
WHICH, IN THE OPINION OF THE BOARD, ARE NECESSARY AND PROPER FOR THE
EXERCISE OF (ITS) POWERS" UNDER SECS. 9 AND 10, 29 U.S.C. 159 AND 160,
THE BOARD MAY SEEK INJUNCTIVE RELIEF FROM A DISTRICT COURT REQUIRING
COMPLIANCE.  29 U.S.C. 161(2). 

MR. JUSTICE WHITE, DISSENTING. 

I 

THE NATIONAL LABOR RELATIONS BOARD HERE SUES IN FEDERAL COURT TO
ENJOIN THE ENFORCEMENT OF A STATE COURT INJUNCTION AGAINST PICKETING. 
/1/  TITLE 28 U.S.C. 2283 BARS SUCH INJUNCTIONS EXCEPT IN SPECIFIED
SITUATIONS.  ONE EXCEPTION PERMITS INJUNCTIONS BY A FEDERAL COURT WHICH
ARE "NECESSARY IN AID OF ITS JURISDICTION."  THE MAJORITY RIGHTFULLY
CONCEDES THAT THIS EXCEPTION IS INAPPLICABLE HERE.  A STATE COURT
INJUNCTION IN NO WAY INTERFERES WITH THE BOARD'S ADMITTED POWER TO
PREVENT UNFAIR LABOR PRACTICES OR TO SECURE FEDERAL INJUNCTIONS IN
THOSE SITUATIONS SPECIFICALLY IDENTIFIED BY CONGRESS.  CAPITAL SERVICE,
INC. V. NLRB, 347 U.S. 501 (1954), AMPLY PROTECTS THE BOARD'S POWER TO
ENJOIN STATE COURT PROCEEDINGS WHERE AN UNFAIR LABOR PRACTICE IS IN
PROGRESS AND THE JURISDICTION OF A FEDERAL COURT MIGHT LATER BE
INVOKED, BUT NO SUCH BOARD ADJUDICATION WAS OCCURRING HERE CONCERNING
THE PICKETING.  CAPITAL SERVICE IS NOT CONTROLLING. 

LEITER MINERALS, INC. V. UNITED STATES, 352 U.S. 220 (1957), HELD
THAT THE RESTRICTIONS OF SEC. 2283 DO NOT APPLY TO THE FEDERAL
GOVERNMENT.  THE BOARD IDENTIFIES ITSELF WITH THE UNITED STATES AND
THEREFORE ASSERTS THAT SEC. 2283 IS INAPPLICABLE TO IT.  I CANNOT
AGREE.  THE JURIDICAL STATUS OF THE BOARD IS NOT PERFECTLY CONGRUENT
WITH THAT OF THE UNITED STATES.  FOR EXAMPLE, ALTHOUGH IT MAY FILE
CLAIMS FOR BACK PAY IN BANKRUPTCY PROCEEDINGS, IT DOES NOT ENJOY THE
PRIORITY ACCORDED TO DEBTS OWING TO THE UNITED STATES.  NATHANSON V.
NLRB, 344 U.S. 25 (1952).  /2/  LEITER MINERALS HAD NOTHING TO DO WITH
THE CIRCUMSTANCES IN WHICH AN AGENCY SUCH AS THE NLRB SHOULD BE TREATED
AS THE UNITED STATES; NOR DOES THAT CASE PURPORT TO MODIFY THE RULE OF
RECONSTRUCTION FINANCE CORP. V. J. G. MENIHAN CORP., 312 U.S. 81, 85
(1941), THAT THE INTENTION OF CONGRESS TO BESTOW THE PRIVILEGES AND
IMMUNITIES OF THE UNITED STATES ON A FEDERAL AGENCY MUST BE CLEARLY
MANIFEST.  /3/  THE AUTHORITY OF THE FEDERAL GOVERNMENT TO SECURE AN
INJUNCTION IN LEITER MINERALS WAS IMPLIED UNDER THE JUDICIAL RULE THAT
A STATUTE THAT DIVESTS PRE-EXISTING RIGHTS OR PRIVILEGES WILL NOT BE
APPLIED TO THE SOVEREIGN IN THE ABSENCE OF EXPLICIT LANGUAGE.  352
U.S.,AT 224.  IN THE INSTANT CASE, HOWEVER, WE DEAL WITH A STATUTORILY
DEFINED AGENCY CREATED AFTER THE PASSAGE OF SEC. 2283 AND POSSESSING
CERTAIN SPECIFIED INJUNCTIVE POWERS.  THE BOARD CAN CLAIM NO RESIDUAL
SOVEREIGNTY SUCH AS THAT WHICH WAS HELD IN UNITED STATES V. UNITED MINE
WORKERS, 330 U.S. 258, 272-273 (1947), TO EXEMPT THE UNITED STATES
GOVERNMENT FROM THE RESTRICTIONS OF THE NORRIS-LAGUARDIA ACT, AND BY A
FAMILIAR RULE OF STATUTORY CONSTRUCTION, THE ENUMERATION OF ITS
INJUNCTIVE POWERS SHOULD BE HELD TO PRECLUDE THE EXISTENCE OF OTHER
POWERS.  /4/  IN LIGHT OF THE CONGRESSIONAL DISINCLINATION TO AUTHORIZE
ANYTHING MORE THAN EXTREMELY LIMITED INTERFERENCES WITH STATE COURT
PROCEEDINGS BY FEDERAL COURTS, AND IN VIEW OF THIS COURT'S RELUCTANCE
TO APPROVE SUCH INTERFERENCE BY WAY OF THE EQUITABLE POWERS OF FEDERAL
COURTS, YOUNGER V. HARRIS, 401 U.S. 37, 43-45 (1971); ATLANTIC COAST
LINE R. CO. V. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, 398 U.S. 281, 286
(1970), IMPLICIT EXCEPTIONS FROM SEC. 2283 ARE AT BEST SUSPECT. 

PROCEEDINGS IF "EXPRESSLY AUTHORIZED BY ACT OF CONGRESS."  THERE IS NO
CLAIM HERE THAT THE INJUNCTION SOUGHT BY THE BOARD IS EXPRESSLY
AUTHORIZED BY ANY STATUTE.  INDEED, IT IS ADMITTED THAT EXPRESS
AUTHORIZATION IS LACKING, AND WE ARE ASKED TO IMPLY SUCH POWER.  THE
COURT DOES SO, BUT ITS HOLDING IGNORES BOTH THE LANGUAGE AND THE
TRADITIONAL INTERPRETATION OF SEC. 2283 AND IS INCONSISTENT WITH THE
REGULATORY SCHEME OF THE LMRA. 

LABOR MANAGEMENT RELATIONS ACT, 1947, SPECIFIES UNFAIR LABOR PRACTICES
BY EMPLOYERS AND UNIONS.  SECTION 9 PROVIDES FOR BOARD DETERMINATION OF
BARGAINING UNITS AND EMPLOYEE REPRESENTATIVES.  SECTION 10 SPECIFIES
THE PROCEDURES TO BE EMPLOYED IN PREVENTING UNFAIR LABOR PRACTICES
PROHIBITED BY SEC. 8.  TWO ASPECTS OF SEC. 10 ARE CRITICAL HERE. 
FIRST, THE BOARD IS NOT GRANTED UNQUALIFIED POWERS TO ENFORCE THE ACT. 
THE STATUTE CONDITIONS BOARD ACTION AGAINST UNFAIR LABOR PRACTICES UPON
THE FILING OF A CHARGE; IT MAY NOT ACT ON ITS OWN MOTION.  THE
REQUIREMENT IS JURISDICTIONAL.  MONTGOMERY WARD & CO. V. NLRB, 385 F.2D
760, 763 (CA8 1967); TEXAS INDUSTRIES, INC. V. NLRB, 336 F.2D 128, 132
(CA5 1964); INT'L UNION OF ELECTRICAL, RADIO & MACHINE WORKERS V. NLRB,
110 U.S.APP.D.C. 91, 94, 289 F.2D 757, 760 (1960); CONSUMERS POWER CO.
V. NLRB, 113 F.2D 38, 41-43 (CA 6 1940); NLRB V. HOPWOOD RETINNING CO.,
98 F.2D 97, 101 (CA2 1938); NLRB V. NATIONAL LICORICE CO., 104 F.2D
655, 658 (CA2 1939), MODIFIED ON OTHER GROUNDS, 309 U.S. 350 (1940);
DOUDS V. INT'L LONGSHOREMEN'S ASSN., 147 F.SUPP.  103, 108 (SDNY 1956),
AFF'D, 241 F.2D 278 (CA2 1957).  SEE ALSO NATIONAL LICORICE CO. V.
NLRB, 309 U.S. 350, 369 (1940).  THE BOARD HAS NO ROVING, UNQUALIFIED
POWER TO PREVENT UNFAIR LABOR PRACTICES OR TO ENFORCE THE PROVISIONS OF
SEC. 7 DECLARING THAT EMPLOYEES SHALL HAVE THE RIGHT TO ORGANIZE,
BARGAIN COLLECTIVELY, AND OTHERWISE ENGAGE IN CONCERTED ACTIVITIES.  IN
THE CASE BEFORE US, NO UNFAIR LABOR PRACTICE CHARGE ARISING OUT OF THE
UNION'S PICKETING HAS BEEN FILED, EITHER BY THE UNION OR BY THE
EMPLOYER.  YET THE BOARD APPEARED IN A FEDERAL COURT SEEKING AN
INJUNCTION SEEMINGLY AIMED AT PROTECTING EMPLOYEE RIGHTS GUARANTEED BY
SEC. 7. 

SECOND, AFTER A CHARGE HAS BEEN FILED AN AN UNFAIR LABOR PRACTICE
COMPLAINT HAS BEEN ISSUED THE ACT GRANTS THE BOARD THE POWER TO SEEK
"APPROPRIATE TEMPORARY RELIEF OR RESTRAINING ORDER" FROM THE COURTS. 
SEC. 10(J).  FURTHER, SEC. 10(1) SPECIFIES IN EVEN GREATER DETAIL THE
CIRCUMSTANCES UNDER WHICH TEMPORARY INJUNCTIONS MAY BE SECURED WHEN
CHARGES UNDER SECS. 8(B)(4)(A), 8(B)(4)(B), 8 (B)(4)(C), 8(E), OR
8(B)(7) HAVE BEEN FILED WITH THE BOARD.  SECTIONS 10(E) AND 10(F)
DEFINE THE POWERS OF THE BOARD AND THE COURTS TO ISSUE INJUNCTIONS IN
CONNECTION WITH ENFORCEMENT OF BOARD ORDERS AFTER UNFAIR LABOR
PRACTICES HAVE BEEN ADJUDICATED BY THE BOARD.  NOWHERE IN THE STATUTE
IS THERE A PROVISION AUTHORIZING THE BOARD TO SEEK INJUNCTIONS PRIOR TO
THE FILING OF UNFAIR LABOR PRACTICES OR THE ISSUANCE OF A COMPLAINT. 
NOWHERE IS THE BOARD AUTHORIZED TO USE THE INJUNCTIVE POWER TO ENFORCE
SEC. 7 RIGHTS, EXCEPT IN CONNECTION WITH ADJUDICATING UNFAIR
PRACTICES.  CONGRESS SPECIFIED THE POWERS OF THE BOARD WITH SOME CARE,
PARTICULARLY ITS POWERS TO SEEK INJUNCTIONS.  MANIFESTLY, CONGRESS WAS
AWARE OF ITS LONGSTANDING POLICY AGAINST INDISCRIMINATE INJUNCTIONS IN
LABOR DISPUTES; FOR IN SEC. 10(H) IT EXEMPTED FROM THE NORRIS LAGUARDIA
ACT ONLY THOSE SITUATIONS WHERE THE COURTS ARE "GRANTING APPROPRIATE
TEMPORARY RELIEF OR A RESTRAINING ORDER, OR MAKING AND ENTERING A
DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED OR SETTING
ASIDE IN WHOLE OR IN PART AN ORDER OF THE BOARD, AS PROVIDED IN THIS
THE CONTENTION THAT THE PASSAGE OF SEC. 10(1) WOULD WEAKEN THE NORRIS
LAGUARDIA ACT: 

     "THE ONLY COMMENT I CAN MAKE ON THAT STATEMENT IS THAT WE WERE

  VERY CAREFUL IN THIS BILL TO PROTECT THE INJUNCTIVE PROCESS AS IT

  IS PROTECTED IN THE NORRIS-LAGUARDIA ACT, EXCEPT IN EXCEPTIONAL

  CASES WHERE THE GOVERNMENT HAS TO STEP IN.  IN NATIONAL PARALYSIS

  CASES WE PERMIT THE ATTORNEY GENERAL TO STEP IN, AND IN THE

  BOYCOTT AND JURISDICTIONAL STRIKE CASES WE PERMIT THE NATIONAL

  LABOR RELATIONS BOARD TO STEP IN; AND THERE IS NO OTHER APPROACH

  TO THE COURTS FOR INJUNCTION EXCEPT IN THOSE TWO SITUATIONS."  93

  CONG.REC.  4283. 

IN SUCH A CONTEXT, TODAY'S DECISION IS IMPROVIDENT.  AS A STATUTORY
MATTER UNDER THE LABOR MANAGEMENT RELATIONS ACT, THE BOARD HAS NO POWER
TO SEEK THE INJUNCTION IT NOW DEMANDS EVEN ABSENT THE BARRIERS
ESTABLISHED BY SEC. 2283.  AND UNDER THAT SECTION, IT IS ERROR TO
CLOTHE THE AGENCY WITH THE EXCEPTION APPLICABLE TO THE UNITED STATES. 
WHEN AN AGENCY OF THE UNITED STATES, RATHER THAN THE UNITED STATES
ITSELF, IS PLAINTIFF IN AN INJUNCTION ACTION, THE SPECIFIC EXCEPTIONS
TO SEC. 2283 SHOULD BE DEEMED CONTROLLING, PARTICULARLY THAT EXCEPTION
DIRECTING INQUIRY TO WHETHER THE INJUNCTION IS "EXPRESSLY AUTHORIZED BY
ACT OF CONGRESS."  HERE IT IS PLAIN TO ME THAT THE BOARD HAS NO SUCH
POWER AS IT NOW CLAIMS TO HAVE, AND I WOULD AFFIRM THE JUDGMENT BELOW. 

        II 

A FEW ADDITIONAL WORDS ARE APPROPRIATE.  EVEN IF, CONTRARY TO MY
VIEW, THE BOARD HAS POWER TO SEEK AN INJUNCTION TO PREVENT INTERFERENCE
WITH SEC. 7 RIGHTS ABSENT AN UNFAIR LABOR PRACTICE CHARGE, IT SHOULD
NOT BE ABLE TO OBTAIN EQUITABLE RELIEF BY THE MERE CONCLUSORY
ALLEGATION THAT SUCH RIGHTS ARE "ARGUABLY" PROTECTED UNDER THE LMRA. 
ALTHOUGH SEC. 7 RIGHTS MUST BE INTERPRETED ACCORDING TO FEDERAL LAW,
"CONGRESS HAS NOT FEDERALIZED THE ENTIRE LAW OF LABOR RELATIONS,"
MOTOR COACH EMPLOYEES V. LOCKRIDGE, 403 U.S. 274, 309 (1971) (WHITE,
J., DISSENTING), NOR HAS IT WHOLLY DISPLACED STATE AND FEDERAL COURTS
IN THE ADMINISTRATION OF FEDERAL LABOR POLICY. 

THE EMPLOYER IN THIS CASE WAS SUBJECTED TO PICKETING THAT IT THOUGHT
ILLEGAL AND UNPROTECTED.  IT SOUGHT AND WAS GRANTED A STATE COURT
INJUNCTION OVER PROTESTS THAT STATE JUDICIAL POWER WAS PRE-EMPTED BY
FEDERAL LAW AND THE EXCLUSIVE JURISDICTION OF THE NLRB.  RATHER THAN
ALLOWING THE UNION TO APPEAL THE INJUNCTION THROUGH THE STATE COURT
SYSTEM, AND TO THIS COURT IF NECESSARY, AS THE UNION WOULD ORDINARILY
HAVE TO DO, ATLANTIC COAST LINE R. CO. V. BROTHERHOOD OF LOCOMOTIVE
ENGINEERS, SUPRA, THE COURT TODAY PERMITS THE BOARD TO SHORT-CIRCUIT
THAT PROCESS BY SECURING A FEDERAL INJUNCTION, SOLELY UPON ALLEGATIONS
THAT THE CONDUCT OF THE UNION WAS ARGUABLY PROTECTED UNDER FEDERAL LAW
AND WAS WITHIN THE EXCLUSIVE JURISDICTION OF THE NLRB.  THE BOARD DOES
NOT, HOWEVER, INTIMATE WHAT PROVISIONS OF THE LMRA THE UNION WAS
VIOLATING IN PICKETING THIS EMPLOYER.  IT DOES NOT ASSERT THE EXISTENCE
OR IMMINENCE OF AN UNFAIR PICKETING.  IT SUGGESTS NO WAY IN WHICH THE
EMPLOYER COULD SECURE AN ADJUDICATION OF WHETHER THE UNION'S CONDUCT
WAS PROTECTED UNDER FEDERAL LAW.  IT DOES NOT INDICATE WHAT "SUPERIOR
FEDERAL INTERESTS" THE STATE DECREE FRUSTRATED.  ABSENT AN UNFAIR LABOR
PRACTICE CHARGE AND COMPLAINT, THE BOARD ITSELF HAS NO JURISDICTION AT
ALL, LET ALONE EXCLUSIVE JURISDICTION, TO HOLD HEARINGS AND ISSUE CEASE
AND-DESIST ORDERS TO PREVENT INTERFERENCE WITH SEC. 7 RIGHTS IN
SITUATIONS LIKE THIS. 

CONGRESS' SWIFT OVERRULING OF THE COURT'S DECISION IN GUSS V. UTAH
LABOR RELATIONS BD., 353 U.S. 1 (1957), BY PASSAGE OF NLRA SEC. 14(C),
73 STAT. 541, 29 U.S.C. 164(C), SHOULD MAKE THE COURT APPROACH WITH
GREAT CAUTION THE CREATION OF ANOTHER "VAST NO-MAN'S LAND, SUBJECT TO
REGULATION BY NO AGENCY OR COURT."  ID., AT 10.  THE NLRA WAS NOT
ENACTED IN A VOID AND ITS STRICTURES PRESUPPOSE A CERTAIN DEGREE OF
STATE AUTHORITY AND REGULATION:     "A HOLDING THAT THE STATES WERE
PRECLUDED FROM ACTING (TO ENFORCE THEIR TRESPASS LAWS AGAINST INVASIONS
OF PRIVATE PROPERTY) WOULD REMOVE THE BACKDROP OF STATE LAW THAT
PROVIDED THE BASIS OF CONGRESSIONAL ACTION BUT WOULD LEAVE INTACT THE
NARROWER RESTRAINT PRESENT IN FEDERAL LAW THROUGH SEC. 7 AND WOULD
THEREBY ARTIFICIALLY CREATE A NO-LAW AREA."  TAGGART V. WEINACKER'S,
INC., 397 U.S. 223, 228 (1970) (BURGER, C. J., CONCURRING) (EMPHASIS IN
ORIGINAL).     THE BOARD SHOULD NOT, THEREFORE, BE ABLE TO OBTAIN AN
INJUNCTION BY MERELY ALLEGING THAT CONDUCT IS "ARGUABLY PROTECTED" BY
THE LMRA.  THIS RATIONALE FOR PREEMPTING THE APPLICABILITY OF STATE LAW
AND THE AUTHORITY OF STATE COURTS DEVELOPED TO PROTECT THE EXCLUSIVE
JURISDICTION OF THE BOARD.  INT'L LONGSHOREMEN'S ASSN., LOCAL 1416 V.
ARIADNE SHIPPING CO., 397 U.S. 195, 201 (1970) (WHITE, J., CONCURRING);
TAGGART V. WEINACKER'S, INC., SUPRA, AT 227-228 (BURGER, C. J.,
CONCURRING).  WHERE THE BOARD IS ITSELF NOT ONLY UNWILLING BUT
APPARENTLY POWERLESS TO MOVE AGAINST THE CHALLENGED CONDUCT, THIS
RATIONALE IS A SPECIES OF FEDERAL OVERKILL, PRE-EMPTING THE FIELD TO
PROTECT NOTHING.  OF COURSE, FEDERAL LAW REMAINS PARAMOUNT IN ITS OWN
ARENA, BUT IF THE BOARD HAS POWER TO ENFORCE IT IN THIS SITUATION, IT
SHOULD BE REQUIRED TO PROVE ITS CASE BEFORE OBTAINING AN INJUNCTION AND
SHOULD DEMONSTRATE THAT FEDERAL LAW HAS BEEN VIOLATED AND THAT
EQUITABLE RELIEF IS NECESSARY TO PREVENT ITS FRUSTRATION.  AN
UNWARRANTED AND ILLOGICAL LACUNA IN THE LEGAL REGULATION OF LABOR
MANAGEMENT RELATIONS SHOULD NOT BE EXTENDED.  THE BOARD SHOULD NOT BE
ENTITLED TO AN INJUNCTION AGAINST STATE COURT PROCEEDINGS UNLESS IT
PERSUADES A FEDERAL COURT THAT THE STATE DECREE IS ACTUALLY INTERFERING
WITH RIGHTS PROTECTED BY FEDERAL LAW. 

/1/  ALTHOUGH THE BOARD HAD HELD AN UNFAIR LABOR PRACTICE HEARING
AND HAD FOUND THE EMPLOYER GUILTY OF CERTAIN UNFAIR LABOR PRACTICES
WHILE EXONERATING IT OF OTHERS, THIS PROCEEDING IS NOT RELEVANT TO THE
ISSUES IN THE PRESENT CASE BECAUSE IT DID NOT CONCERN THE UNION'S
PICKETING.  THE UNION HAD ORIGINALLY FILED A COMPLAINT AND AN ELECTION
PETITION WITH THE BOARD, CHARGING THE EMPLOYER WITH A REFUSAL TO
BARGAIN AND WITH INTERFERING WITH THE EMPLOYEES' RIGHTS TO ORGANIZE.  A
COMPLAINT WAS ISSUED, AND A HEARING HELD.  THE TRIAL EXAMINER ON APRIL
28, 1969, FOUND THE EMPLOYER GUILTY OF CERTAIN SEC. 8(A)(1) AND SEC.
8(A)(5) UNFAIR LABOR PRACTICES AND ENTERED A CEASE-AND-DESIST ORDER
AGAINST CERTAIN ACTIVITIES OF THE EMPLOYER.  A MONTH AFTER THE TRIAL
EXAMINER'S DECISION, THE UNION BEGAN ITS PICKETING, AND THE EMPLOYER
THEN SECURED THE STATE COURT INJUNCTION LIMITING THE PICKETING THAT IS
AT ISSUE IN THIS CASE.  ON AUGUST 29, 1969, THE BOARD FILED A COMPLAINT
IN FEDERAL DISTRICT COURT SEEKING TO RESTRAIN THE EMPLOYER FROM
ENFORCING THE STATE COURT INJUNCTION.  ON SEPTEMBER 17, 1969, THE BOARD
REVERSED THE DECISION OF THE TRIAL EXAMINER AND HELD THAT THE EMPLOYER
WAS NOT GUILTY OF A SEC. 8(A)(5) REFUSAL TO BARGAIN NOR OF CERTAIN OF
THE SEC. 8(A)(1) VIOLATIONS THE TRIAL EXAMINER HAD FOUND, BUT IT FOUND
THE EMPLOYER GUILTY OF CERTAIN OTHER SEC. 8(A)(1) INFRACTIONS AND
ENTERED A LIMITED CEASE-AND-DESIST ORDER.  ALTHOUGH THE PICKETING
OCCURRED CONTEMPORANEOUSLY WITH THE SEC. 8(A)(1) AND SEC. 8(A)(5)
UNFAIR LABOR PRACTICE PROCEEDING, IT WAS NEVER AN ISSUE BEFORE THE
BOARD. 

/2/  IN NATHANSON, AS HERE, THE BOARD WAS ATTEMPTING TO PROTECT THE
SEC. 7 RIGHTS OF PRIVATE PARTIES.  IF ANYTHING, THE SITUATION IN
NATHANSON WAS A MUCH STRONGER ONE FOR EQUATING THE STATUS OF THE BOARD
TO THAT OF THE UNITED STATES, SINCE THERE THE BOARD WAS SEEKING TO
ENFORCE A BACK PAY AWARD (BY FILING A PROOF OF CLAIM AGAINST THE
EMPLOYER, WHO HAD BECOME A BANKRUPT, AND ASSERTING THAT ITS BACK PAY
ORDER WAS ENTITLED TO THE PRIORITY OF A DEBT OWING THE UNITED STATE
UNDER SEC. 64(A)(5) OF THE BANKRUPTCY ACT, 11 U.S.C. 104(A)(5)) WHICH
IT HAD ASSESSED AFTER ADJUDICATING THE EMPLOYER GUILTY OF A SEC. 8
UNFAIR LABOR PRACTICE.  THE BOARD WAS THUS CLEARLY DISCHARGING A
DESIGNATED STATUTORY FUNCTION, AS DISTINGUISHED FROM THE INSTANT CASE
WHERE THE BOARD'S JURISDICTION TO EVALUATE THE DISPUTED PICKETING IN AN
UNFAIR LABOR PRACTICE PROCEEDING IS TOTALLY UNCLEAR.  THE COURT HELD,
HOWEVER, THAT "(IT DOES NOT FOLLOW THAT BECAUSE THE BOARD IS AN AGENCY
OF THE UNITED STATES, ANY DEBT OWED IT IS A DEBT OWING THE UNITED
STATES" UNDER THE BANKRUPTCY ACT, 344 U.S.,AT 27, AND IT DISALLOWED THE
ASSERTED PRIORITY ON THE GROUND THAT THE FUNCTION OF THE PRECEDENCE
GIVEN THE UNITED STATES UNDER THE BANKRUPTCY ACT WAS TO INSURE THE
COLLECTION OF CLAIMS THAT HAD ACCRUED TO THE FISC.  THE MAJORITY'S
ATTEMPT TO DISTINGUISH NATHANSON IS LESS THAN CONVINCING. 

/3/  BOTH MENIHAN AND THE PRESENT CASE PRESENT THE QUESTION OF
WHETHER A GOVERNMENTAL AGENCY IS CLOTHED WITH A PARTICULAR ATTRIBUTE OF
SOVEREIGNTY: IN MENIHAN, AN EXEMPTION FROM PAYMENT OF COSTS AFTER
UNSUCCESSFUL LITIGATION UNDER FED. RULE CIV. PROC. 54(D) WHICH WAS
AFFORDED TO "THE UNITED STATES, ITS OFFICERS, AND AGENCIES . . . TO THE
EXTENT PERMITTED BY LAW," IN THE PRESENT CASE, AN IMPLICIT EXEMPTION
FROM SEC. 2283.  THE COURT EMPHASIZED THAT BECAUSE THE DOCTRINE OF
SOVEREIGN IMMUNITY GIVES THE GOVERNMENT A PRIVILEGED POSITION, IT HAS
BEEN "APPROPRIATELY CONFINED," 312 U.S.,AT 84, AND NOTED THAT "THE
GOVERNMENT DOES NOT BECOME THE CONDUIT OF ITS IMMUNITY IN SUITS AGAINST
ITS AGENTS OR INSTRUMENTALITIES MERELY BECAUSE THEY DO ITS WORK." 
IBID., QUOTING KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP., 306
U.S. 381, 388 (1939).  SINCE "THERE IS NO PRESUMPTION THAT THE AGENT IS
CLOTHED WITH SOVEREIGN IMMUNITY," 312 U.S.,AT 85, THE COURT EXAMINED
THE STATUTE ESTABLISHING THE RFC AND CONCLUDED THAT THERE WAS NO
AFFIRMATIVE INDICATION BY CONGRESS THAT IT HAD MEANT TO EXEMPT THE RFC
FROM PAYING COSTS AFTER IT HAD LOST A LAWSUIT. 

/4/  THIS RULE HAS BEEN FREQUENTLY RECOGNIZED BY THE COURT, UNITED
STATES V. DE LA MAZA ARREDONDO, 6 PET. 691, 724 (1832); KENDALL V.
UNITED STATES, 107 U.S. 123, 125 (1883); NEUBERGER V. COMMISSIONER OF
INTERNAL REVENUE, 311 U.S. 83, 88 (1940). 

MR. JUSTICE BRENNAN WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS FOR THE REASONS STATED IN PART I OF THE DISSENTING OPINION OF
MR. JUSTICE WHITE. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR PETITIONER.  ON THE BRIEFS
WERE SOLICITOR GENERAL GRISWOLD, PETER L. STRAUSS, DOMINICK L. MANOLI,
NORTON J. COME, AND PETER G. NASH. 

WILLIAM A HARDING ARGUED THE CAUSE FOR RESPONDENT PRO HAC VICE. 
WITH HIM ON THE BRIEF WAS RICHARD P. NELSON. 

SOLOMON I. HIRSH FILED A BRIEF FOR THE AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, AS AMICUS CURIAE URGING
REVERSAL. 

MILTON A. SMITH, JERRY KRONENBERG, AND GERARD C. SMETANA FILED A
BRIEF FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICUS CURIAE
URGING AFFIRMANCE. 
..END :






CHEMICAL WORKERS V. PITTSBURGH GLASS, 404 U.S. 157 


       ALLIED CHEMICAL & ALKALI WORKERS OF AMERICA, LOCAL UNION NO.

           1 V. PITTSBURGH PLATE GLASS CO., CHEMICAL DIVISION, ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 70-32.  ARGUED OCTOBER 20, 1971-- DECIDED DECEMBER 8,

           1971  /0/ 


A LABOR ORGANIZATION THAT WAS THE EXCLUSIVE BARGAINING AGENT FOR
EMPLOYEES "WORKING" ON HOURLY PAY RATES AT ONE OF RESPONDENT COMPANY'S
FACILITIES HAD NEGOTIATED WITH THE COMPANY AN EMPLOYEE HEALTH INSURANCE
PLAN IN WHICH RETIRED EMPLOYEES PARTICIPATED.  UPON ENACTMENT OF
MEDICARE THE UNION SOUGHT MID-TERM BARGAINING TO RENEGOTIATE THE
INSURANCE BENEFITS FOR RETIRED EMPLOYEES.  THE COMPANY, MAINTAINING
THAT MEDICARE MADE THE MANDATORY SUBJECT OF COLLECTIVE BARGAINING,
STATE THAT IT WOULD OFFER EACH RETIREE A STATED MONTHLY AMOUNT TOWARD
SUPPLEMENTAL MEDICARE COVERAGE.  WHEN, DESPITE UNION OBJECTIONS, THE
COMPANY MADE THE OFFER, THE UNION FILED UNFAIR LABOR PRACTICE CHARGES
WITH THE NATIONAL LABOR RELATIONS BOARD (NLRB).  THE NLRB CONCLUDED
THAT THE COMPANY WAS GUILTY OF UNFAIR LABOR PRACTICES IN VIOLATION OF
SECS. 8(A)(5) AND (1) OF THE NATIONAL LABOR RELATIONS ACT (NLRA) AND
ISSUED A CEASE-AND-DESIST ORDER.  THE NLRB HELD THAT THE BENEFITS OF
ALREADY RETIRED EMPLOYEES WERE A MANDATORY SUBJECT OF BARGAINING AS
"TERMS AND CONDITIONS OF EMPLOYMENT" OF THE RETIREES THEMSELVES AND,
ALTERNATIVELY, OF THE ACTIVE BARGAINING UNIT EMPLOYEES.  IT ALSO HELD
THAT THE COMPANY'S "ESTABLISHMENT OF A FIXED, ADDITIONAL OPTION IN AND
OF ITSELF CHANGED THE NEGOTIATED PLAN OF BENEFITS" CONTRARY TO SECS.
8(D) AND 8(A)(5) OF THE ACT.  THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT DISAGREED WITH THE NLRB AND REFUSED TO ENFORCE ITS CEASE-AND
DESIST ORDER.  HELD: 

1.  RETIREES' BENEFITS ARE NOT, WITHIN THE MEANING OF SECS. 8(A)(5)
AND 8(D) OF THE NLRA, A MANDATORY SUBJECT OF BARGAINING AS "TERMS AND
CONDITIONS OF EMPLOYMENT" OF THE RETIREES.  PP. 163-176. 

(A) THE COLLECTIVE-BARGAINING OBLIGATION EXTENDS ONLY TO THE "TERMS
AND CONDITIONS OF EMPLOYMENT" OF THE EMPLOYER'S "EMPLOYEES," AND THE
TERM "EMPLOYEE" HAS ITS ORDINARY MEANING, I.E., SOMEONE WHO WORKS FOR
ANOTHER FOR HIRE, WHICH EXCLUDES RETIREES.  PP. 165-171. 

(B) THE COLLECTIVE-BARGAINING OBLIGATION IS LIMITED TO THE "TERMS
AND CONDITIONS OF EMPLOYMENT" OF THE "EMPLOYEES" IN THE BARGAINING UNIT
APPROPRIATE FOR THE PURPOSE OF COLLECTIVE BARGAINING.  RETIREES WERE
NOT MEMBERS OF THE UNIT REPRESENTED BY THE UNION, BECAUSE THEY WERE NO
LONGER "WORKING."  NOR COULD THEY BE MEMBERS, SINCE THEY LACK A
SUBSTANTIAL COMMUNITY OF INTERESTS WITH THE ACTIVE EMPLOYEES IN THE
UNIT.  PP. 171-175. 

(C) EVEN IF AN INDUSTRY PRACTICE OF BARGAINING OVER RETIREES'
RIGHTS EXISTS, WHICH IS DISPUTED, THAT CANNOT CHANGE THE LAW AND MAKE
INTO BARGAINING UNIT "EMPLOYEES" THOSE WHO ARE NOT.  PP. 175-176. 

2.  RETIREES' BENEFITS ARE NOT A MANDATORY SUBJECT OF BARGAINING AS
"TERMS AND CONDITIONS OF EMPLOYMENT" OF THE ACTIVE EMPLOYEES REMAINING
IN THE BARGAINING UNIT, ALTHOUGH THEIR OWN FUTURE RETIREMENT PLANS
ARE.  RETIREES' BENEFITS DO NOT "VITALLY" AFFECT THE "TERMS AND
CONDITIONS OF EMPLOYMENT" OF CURRENT EMPLOYEES.  THE BENEFITS THAT
ACTIVE WORKERS MAY REAP BY INCLUDING RETIRED EMPLOYEES UNDER THE SAME
HEALTH INSURANCE CONTRACT AS THEMSELVES ARE SPECULATIVE AND
INSUBSTANTIAL AT BEST.  THE RELATIONSHIP THAT THE NLRB ASSERTED EXISTS
BETWEEN BARGAINING IN BEHALF OF RETIREES AND THE NEGOTIATION OF ACTIVE
EMPLOYEES' RETIREMENT PLANS IS EQUALLY TOO SPECULATIVE A FOUNDATION ON
WHICH TO BASE AN OBLIGATION TO BARGAIN.  PP. 176-182. 

3.  EVEN IF THE COMPANY'S OFFERING THE RETIREES AN EXCHANGE FOR
THEIR WITHDRAWAL FROM THE ALREADY NEGOTIATED HEALTH INSURANCE PLAN WAS
A UNILATERAL MID-TERM "MODIFICATION" OF THE PLAN WITHIN THE MEANING OF
SEC. 8(D) OF THE ACT, WHICH IS DISPUTED, IT DID NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE, SINCE IT RELATED TO A PERMISSIVE RATHER THAN A
MANDATORY SUBJECT OF BARGAINING.  PP. 183-188. 

427 F.2D 936, AFFIRMED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS,
J., DISSENTED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

UNDER THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, MANDATORY
SUBJECTS OF COLLECTIVE BARGAINING INCLUDE PENSION AND INSURANCE
BENEFITS FOR ACTIVE EMPLOYEES, /1/  AND AN EMPLOYER'S MID-TERM
UNILATERAL MODIFICATION OF SUCH BENEFITS CONSTITUTES AN UNFAIR LABOR
PRACTICE.  /2/  THIS CAUSE PRESENTS THE QUESTION WHETHER A MID-TERM
UNILATERAL MODIFICATION THAT CONCERNS, NOT THE BENEFITS OF ACTIVE
EMPLOYEES, BUT THE BENEFITS OF ALREADY RETIRED EMPLOYEES ALSO
CONSTITUTES AN UNFAIR LABOR PRACTICE.  THE NATIONAL LABOR RELATIONS
BOARD, ONE MEMBER DISSENTING, HELD THAT CHANGES IN RETIRED EMPLOYEES'
RETIREMENT BENEFITS ARE EMBRACED BY THE BARGAINING OBLIGATION AND THAT
AN EMPLOYER'S UNILATERAL MODIFICATION OF THEM CONSTITUTES AN UNFAIR
LABOR PRACTICE IN VIOLATION OF SECS. 8(A)(5) AND (1) OF THE ACT.  177
N.L.R.B. 911 (1969).  /3/  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
DISAGREED AND REFUSED TO ENFORCE THE BOARD'S CEASE-AND-DESIST ORDER,
427 F.2D 936 (1970).  WE GRANTED CERTIORARI, 401 U.S. 907 (1971).  WE
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

        I 

SINCE 1949, LOCAL 1, ALLIED CHEMICAL AND ALKALI WORKERS OF AMERICA,
HAS BEEN THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR THE EMPLOYEES
"WORKING" ON HOURLY RATES OF PAY AT THE BARBERTON, OHIO, FACILITIES OF
RESPONDENT PITTSBURGH PLATE GLASS CO.  /4/  IN 1950, THE UNION AND THE
COMPANY NEGOTIATED AN EMPLOYEE GROUP HEALTH INSURANCE PLAN, IN WHICH,
IT WAS ORALLY AGREED, RETIRED EMPLOYEES COULD PARTICIPATE BY
CONTRIBUTING THE REQUIRED PREMIUMS, TO BE DEDUCTED FROM THEIR PENSION
BENEFITS.  THIS PROGRAM CONTINUED UNCHANGED UNTIL 1962, EXCEPT FOR AN
IMPROVEMENT UNILATERALLY INSTITUTED BY THE COMPANY IN 1954 AND ANOTHER
IMPROVEMENT NEGOTIATED IN 1959. 

IN 1962 THE COMPANY AGREED TO CONTRIBUTE TWO DOLLARS PER MONTH
TOWARD THE COST OF INSURANCE PREMIUMS OF EMPLOYEES WHO RETIRED IN THE
FUTURE AND ELECTED TO PARTICIPATE IN THE MEDICAL PLAN.  THE PARTIES
ALSO AGREED AT THIS TIME TO MAKE 65 THE MANDATORY RETIREMENT AGE.  IN
1964 INSURANCE BENEFITS WERE AGAIN NEGOTIATED, AND THE COMPANY AGREED
TO INCREASE ITS MONTHLY CONTRIBUTION FROM TWO TO FOUR DOLLARS,
APPLICABLE TO EMPLOYEES RETIRING AFTER THAT DATE AND ALSO TO PENSIONERS
WHO HAD RETIRED SINCE THE EFFECTIVE DATE OF THE 1962 CONTRACT.  IT WAS
AGREED, HOWEVER, THAT THE COMPANY MIGHT DISCONTINUE PAYING THE TWO
DOLLAR INCREASE IF CONGRESS ENACTED A NATIONAL HEALTH PROGRAM. 

IN NOVEMBER 1965, MEDICARE, A NATIONAL HEALTH PROGRAM, WAS ENACTED,
79 STAT. 291, 42 U.S.C. 1395 ET SEQ.  THE 1964 CONTRACT WAS STILL IN
EFFECT, AND THE UNION SOUGHT MID-TERM BARGAINING TO RENEGOTIATE
INSURANCE BENEFITS FOR RETIRED EMPLOYEES.  THE COMPANY RESPONDED IN
MARCH 1966 THAT, IN ITS VIEW, MEDICARE RENDERED THE HEALTH INSURANCE
PROGRAM USELESS BECAUSE OF A NON-DUPLICATION-OF-BENEFITS PROVISION IN
THE COMPANY'S INSURANCE POLICY, AND STATED, WITHOUT NEGOTIATING ANY
CHANGE, THAT IT WAS PLANNING TO (A) RECLAIM THE ADDITIONAL TWO-DOLLAR
MONTHLY CONTRIBUTION AS OF THE EFFECTIVE DATE OF MEDICARE; (B) CANCEL
THE PROGRAM FOR RETIREES; AND (C) SUBSTITUTE THE PAYMENT OF THE THREE
DOLLAR MONTHLY SUBSCRIPTION FEE FOR SUPPLEMENTAL MEDICARE COVERAGE FOR
EACH RETIRED EMPLOYEE.  /5/ 

THE UNION ACKNOWLEDGED THAT THE COMPANY HAD THE CONTRACTUAL RIGHT TO
REDUCE ITS MONTHLY CONTRIBUTION, BUT CHALLENGED RIGHT TO REDUCE ITS
MONTHLY CONTRIBUTION, BUT CHALLENGED ITS PROPOSAL UNILATERALLY TO
SUBSTITUTE SUPPLEMENTAL MEDICARE COVERAGE FOR THE NEGOTIATED HEALTH
PLAN.  THE COMPANY, AS IT HAD DONE DURING THE 1959 NEGOTIATIONS WITHOUT
PRESSING THE POINT, DISPUTED THE UNION'S RIGHT TO BARGAIN IN BEHALF OF
RETIRED EMPLOYEES, BUT ADVISED THE UNION THAT UPON FURTHER
CONSIDERATION IT HAD DECIDED NOT TO TERMINATE THE HEALTH PLAN FOR
PENSIONERS.  THE COMPANY STATED INSTEAD THAT IT WOULD WRITE EACH
RETIRED EMPLOYEE, OFFERING TO PAY THE SUPPLEMENTAL MEDICARE PREMIUM IF
THE EMPLOYEE WOULD WITHDRAW FROM THE NEGOTIATED PLAN.  DESPITE THE
UNION'S OBJECTIONS THE COMPANY DID CIRCULATE ITS PROPOSAL TO THE
RETIRED EMPLOYEES, AND 15 OF 190 RETIREES ELECTED TO ACCEPT IT.  THE
UNION THEREUPON FILED UNFAIR LABOR PRACTICE CHARGES. 

THE BOARD HELD THAT ALTHOUGH THE COMPANY WAS NOT REQUIRED TO ENGAGE
IN MID-TERM NEGOTIATIONS, THE BENEFITS OF ALREADY RETIRED EMPLOYEES
COULD NOT BE REGARDED AS OTHER THAN A MANDATORY SUBJECT OF COLLECTIVE
BARGAINING.  THE BOARD REASONED THAT "RETIRED EMPLOYEES ARE 'EMPLOYEES'
WITHIN THE MEANING OF THE STATUTE FOR THE PURPOSES OF BARGAINING ABOUT
CHANGES IN THEIR RETIREMENT BENEFITS . . . ."  177 N.L.R.B.,AT 912. 
MOREOVER, "RETIREMENT STATUS IS A SUBSTANTIAL CONNECTION TO THE
BARGAINING UNIT, FOR IT IS THE CULMINATION AND THE PRODUCT OF YEARS OF
EMPLOYMENT."  ID., AT 914.  ALTERNATIVELY, THE BOARD CONSIDERED
"BARGAINING ABOUT CHANGES IN RETIREMENT BENEFITS FOR RETIRED EMPLOYEES"
AS "WITHIN THE CONTEMPLATION OF THE STATUTE BECAUSE OF THE INTEREST
WHICH ACTIVE EMPLOYEES HAVE IN THIS SUBJECT . . . ."  ID., AT 912. 
APPARENTLY IN SUPPORT OF BOTH THEORIES, THE BOARD NOTED THAT
"(BARGAINING ON BENEFITS FOR WORKERS ALREADY RETIRED IS AN ESTABLISHED
ASPECT OF CURRENT LABOR-MANAGEMENT RELATIONS."  ID., AT 916.  THE BOARD
ALSO HELD THAT THE COMPANY'S "ESTABLISHMENT OF A FIXED, ADDITIONAL
OPTION IN AND OF ITSELF CHANGED THE NEGOTIATED PLAN OF BENEFITS"
CONTRARY TO SECS. 8(D) AND 8(A)(5) OF THE ACT.  ID., AT 918. 
ACCORDINGLY, THE COMPANY WAS ORDERED TO CEASE AND DESIST FROM REFUSING
TO BARGAIN COLLECTIVELY ABOUT RETIREMENT BENEFITS AND FROM MAKING
UNILATERAL ADJUSTMENTS IN HEALTH INSURANCE PLANS FOR RETIRED EMPLOYEES
WITHOUT FIRST NEGOTIATING IN GOOD FAITH WITH THE UNION.  THE COMPANY
WAS ALSO REQUIRED TO RESCIND, AT THE UNION'S REQUEST, ANY ADJUSTMENT IT
HAD UNILATERALLY INSTITUTED AND TO MAIL AND POST APPROPRIATE NOTICES. 
/6/

   II 

THE UNITED STATES TO PROTECT COMMERCE "BY ENCOURAGING THE PRACTICE AND
PROCEDURE OF COLLECTIVE BARGAINING AND BY PROTECTING THE EXERCISE BY
WORKERS OF FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND
DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING, FOR THE PURPOSE
OF NEGOTIATING THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT . . . ." 
49 STAT. 449, AS AMENDED, 29 U.S.C. 151.  TO EFFECTUATE THIS POLICY,
SEC. 8(A)(5) PROVIDES THAT IT IS AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER "TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION" 9(A).  49 STAT.
453, AS AMENDED, 29 U.S.C. 158(A)(5).  SECTION 8(D), IN TURN, DEFINES
"TO BARGAIN COLLECTIVELY" AS "THE PERFORMANCE OF THE MUTUAL OBLIGATION
OF THE EMPLOYER AND THE REPRESENTATIVE OF THE EMPLOYEES TO MEET AT
REASONABLE TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO WAGES, HOURS,
AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT . . . . "  61 STAT. 142,
29 U.S.C. 158(D).  FINALLY, SEC. 9(A) DECLARES:  "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 . .
. ."  49 STAT. 453, AS AMENDED, 29 U.S.C. 159(A). 

TOGETHER, THESE PROVISIONS ESTABLISH THE OBLIGATION OF THE EMPLOYER
TO BARGAIN COLLECTIVELY, "WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS
AND CONDITIONS OF EMPLOYMENT," WITH "THE REPRESENTATIVES OF HIS
EMPLOYEES" DESIGNATED OR SELECTED BY THE MAJORITY "IN A UNIT
APPROPRIATE FOR SUCH PURPOSES."  THIS OBLIGATION EXTENDS ONLY TO THE
"TERMS AND CONDITIONS OF EMPLOYMENT" OF THE EMPLOYER'S "EMPLOYEES" IN
THE "UNIT APPROPRIATE FOR SUCH PURPOSES" THAT THE UNION REPRESENTS. 
SEE, E.G., MINE WORKERS V. PENNINGTON, 381 U.S. 657, 666 (1965); NLRB
V. BORG-WARNER CORP., 356 U.S. 342 (1958); PACKARD CO. V. NLRB, 330
U.S. 485 (1947); PHELPS DODGE CORP. V. NLRB, 313 U.S. 177, 192 (1941)
(DICTUM); PITTSBURGH GLASS CO. V. NLRB, 313 U.S. 146 (1941).  THE BOARD
FOUND THAT BENEFITS OF ALREADY RETIRED EMPLOYEES FELL WITHIN THESE
CONSTRAINTS ON ALTERNATIVE THEORIES.  FIRST, IT HELD THAT PENSIONERS
ARE THEMSELVES "EMPLOYEES" AND MEMBERS OF THE BARGAINING UNIT, SO THAT
THEIR BENEFITS ARE A "TERM AND CONDITION" OF THEIR EMPLOYMENT.  /7/ 

THE COURT OF APPEALS, IN CONTRAST, HELD "THAT RETIREES ARE NOT
'EMPLOYEES' WITHIN THE MEANING OF SECTION 8(A)(5) AND . . . THE COMPANY
WAS UNDER NO CONSTRAINT TO COLLECTIVELY BARGAIN IMPROVEMENTS IN THEIR
BENEFITS WITH THE UNION."  427 F.2D,AT 942.  THE COURT REASONED, FIRST,
"(RETIREMENT WITH THIS COMPANY, AS WITH MOST OTHER COMPANIES, IS A
COMPLETE AND FINAL SEVERANCE OF EMPLOYMENT.  UPON RETIREMENT, EMPLOYEES
ARE COMPLETELY REMOVED FROM THE PAYROLL AND SENIORITY LISTS, AND
THEREAFTER THEY PERFORM NO SERVICES FOR THE EMPLOYER, ARE PAID NO
WAGES, ARE UNDER NO RESTRICTIONS AS TO OTHER EMPLOYMENT OR ACTIVITIES,
AND HAVE NO RIGHTS OR EXPECTATIONS OF REEMPLOYMENT," ID., AT 944; AND,
SECOND, "(IT HAS REPEATEDLY BEEN HELD THAT THE SCOPE OF THE BARGAINING
UNIT CONTROLS THE EXTENT OF THE BARGAINING OBLIGATION . . . . (AND) THE
UNITE CERTIFIED BY THE BOARD AS APPROPRIATE WAS COMPOSED . . . ONLY OF
PRESUMABLY ACTIVE EMPLOYEES . . . ."  ID., AT 945.  FOR THE REASONS
THAT FOLLOW WE AGREE WITH THE COURT OF APPEALS. 

FIRST.  SECTION 2(3) OF THE ACT PROVIDES: 

     "THE TERM 'EMPLOYEE' SHALL INCLUDE ANY EMPLOYEE, AND SHALL NOT

  BE LIMITED TO THE EMPLOYEES OF A PARTICULAR EMPLOYER, UNLESS THIS

  SUBCHAPTER EXPLICITLY STATES OTHERWISE, AND SHALL INCLUDE ANY

  INDIVIDUAL WHOSE WORK HAS CEASED AS A CONSEQUENCE OF, OR IN

CONNECTION WITH, ANY CURRENT LABOR DISPUTE OR BECAUSE OF ANY

  UNFAIR LABOR PRACTICE, AND WHO HAS NOT OBTAINED ANY OTHER REGULAR

  AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT . . . ."  49 STAT. 450,

  AS AMENDED, 29 U.S.C. 152(3). 

WE HAVE REPEATEDLY AFFIRMED THAT THE TASK OF DETERMINING THE CONTOURS
OF THE TERM "EMPLOYEE" "HAS BEEN ASSIGNED PRIMARILY TO THE AGENCY
CREATED BY CONGRESS TO ADMINISTER THE ACT."  NLRB V. HEARST
PUBLICATIONS, 322 U.S. 111, 130 (1944).  SEE ALSO IRON WORKERS V.
PERKO, 373 U.S. 701, 706 (1963); NLRB V. ATKINS & CO., 331 U.S. 398
(1947).  BUT WE HAVE NEVER IMMUNIZED BOARD JUDGMENTS FROM JUDICIAL
REVIEW IN THIS RESPECT.  "(THE BOARD'S DETERMINATION THAT SPECIFIED
PERSONS ARE 'EMPLOYEES' UNDER THIS ACT IS TO BE ACCEPTED IF IT HAS
'WARRANT IN THE RECORD' AND A REASONABLE BASIS IN LAW."  NLRB V. HEARST
PUBLICATIONS, SUPRA, AT 131. 

IN THIS CAUSE WE HOLD THAT THE BOARD'S DECISION IS NOT SUPPORTED BY
THE LAW.  THE ACT, AFTER ALL, AS SEC. 1 MAKES CLEAR, IS CONCERNED WITH
THE DISRUPTION TO COMMERCE THAT ARISES FROM INTERFERENCE WITH THE
ORGANIZATION AND COLLECTIVE-BARGAINING RIGHTS OF "WORKERS"-- NOT THOSE
WHO HAVE RETIRED FROM THE WORK FORCE.  THE INEQUALITY OF BARGAINING
POWER THAT CONGRESS SOUGHT TO REMEDY WAS THAT OF THE "WORKING" MAN, AND
THE LABOR DISPUTES THAT IT ORDERED TO BE SUBJECTED TO COLLECTIVE
BARGAINING WERE THOSE OF EMPLOYERS AND THEIR ACTIVE EMPLOYEES.  NOWHERE
IN THE HISTORY OF THE NATIONAL LABOR RELATIONS ACT IS THERE ANY
EVIDENCE THAT RETIRED WORKERS ARE TO BE CONSIDERED AS WITHIN THE AMBIT
OF THE COLLECTIVE-BARGAINING OBLIGATIONS OF THE STATUTE. 

TO THE CONTRARY, THE LEGISLATIVE HISTORY OF SEC. 2(3) ITSELF
INDICATES THAT THE TERM "EMPLOYEE" IS NOT TO BE STRETCHED BEYOND ITS
PLAIN MEANING EMBRACING ONLY THOSE WHO WORK FOR ANOTHER FOR HIRE.  IN
NLRB V. HEARST PUBLICATIONS, SUPRA, WE SUSTAINED THE BOARD'S FINDING
THAT NEWSBOYS WERE "EMPLOYEES" RATHER THAN INDEPENDENT CONTRACTORS.  WE
SAID THAT "THE BROAD LANGUAGE OF THE ACT'S DEFINITIONS, WHICH IN TERMS
REJECT CONVENTIONAL LIMITATIONS ON SUCH CONCEPTIONS AS 'EMPLOYEE,'  . .
. LEAVES NO DOUBT THAT ITS APPLICABILITY IS TO BE DETERMINED BROADLY,
IN DOUBTFUL SITUATIONS, BY UNDERLYING ECONOMIC FACTS RATHER THAN
TECHNICALLY AND EXCLUSIVELY BY PREVIOUSLY ESTABLISHED LEGAL
CLASSIFICATIONS."  THE TERM "EMPLOYEE" "MUST BE UNDERSTOOD WITH
REFERENCE TO THE PURPOSE OF THE ACT AND THE FACTS INVOLVED IN THE
ECONOMIC RELATIONSHIP."  322 U.S.,AT 129.  CONGRESS REACTED BY
SPECIFICALLY EXCLUDING FROM THE DEFINITION OF "EMPLOYEE" "ANY
INDIVIDUAL HAVING THE STATUS OF AN INDEPENDENT CONTRACTOR."  THE HOUSE,
WHICH PROPOSED THE AMENDMENT, EXPLAINED: 

     "AN 'EMPLOYEE,' ACCORDING TO ALL STANDARD DICTIONARIES,

  ACCORDING TO THE LAW AS THE COURTS HAVE STATED IT, AND ACCORDING

  TO THE UNDERSTANDING OF ALMOST EVERYONE, . . . MEANS SOMEONE WHO

WORKS FOR ANOTHER FOR HIRE.  BUT IN THE CASE OF NATIONAL LABOR

  RELATIONS BOARD V. HEARST PUBLICATIONS, INC. . . . , THE BOARD .

  . . HELD INDEPENDENT MERCHANTS WHO BOUGHT NEWSPAPERS FROM THE

  PUBLISHER AND HIRED PEOPLE TO SELL THEM TO BE 'EMPLOYEES.'  THE

  PEOPLE THE MERCHANTS HIRED TO SELL THE PAPERS WERE 'EMPLOYEES' OF

  THE MERCHANTS, BUT HOLDING THE MERCHANTS TO BE 'EMPLOYEES' OF THE

  PUBLISHER OF THE PAPERS WAS MOST FAR REACHING.  IT MUST BE

  PRESUMED THAT WHEN CONGRESS PASSED THE LABOR ACT, IT INTENDED

  WORDS IT USED TO HAVE THE MEANINGS THAT THEY HAD WHEN CONGRESS

  PASSED THE ACT, NOT NEW MEANINGS THAT, 9 YEARS LATER, THE LABOR

  BOARD MIGHT THINK UP.  IN THE LAW, THERE ALWAYS HAS BEEN A

  DIFFERENCE, AND A BIG DIFFERENCE, BETWEEN 'EMPLOYEES' AND

  'INDEPENDENT CONTRACTORS.'  'EMPLOYEES' WORK FOR WAGES OR

  SALARIES UNDER DIRECT SUPERVISION . . . . IT IS INCONCEIVABLE

  THAT CONGRESS, WHEN IT PASSED THE ACT, AUTHORIZED THE BOARD TO

  GIVE TO EVERY WORD IN THE ACT WHATEVER MEANING IT WISHED.  ON THE

  CONTRARY, CONGRESS INTENDED THEN, AND IT INTENDS NOW, THAT THE

  BOARD GIVE TO WORDS NOT FAR-FETCHED MEANINGS BUT ORDINARY

  MEANINGS."  H.R. REP. NO. 245, 80TH CONG., 1ST SESS., 18 (1947)

  (EMPHASIS ADDED). 

SEE ALSO 93 CONG.REC.  6441-6442; H.R. CONF. REP. NO. 510, 80TH CONG.,
1ST SESS., 32-33 (1947).  THE 1947 TAFT-HARTLEY REVISION MADE CLEAR
THAT GENERAL AGENCY PRINCIPLES COULD NOT BE IGNORED IN DISTINGUISHING
"EMPLOYEES" FROM INDEPENDENT CONTRACTORS.  NLRB V. UNITED INSURANCE
CO., 390 U.S. 254, 256 (1968).  ALTHOUGH HEARST PUBLICATIONS WAS THUS
REPUDIATED, WE DO NOT THINK ITS APPROACH HAS BEEN TOTALLY DISCREDITED. 
IN DOUBTFUL CASES RESORT MUST STILL BE HAD TO ECONOMIC AND POLICY
CONSIDERATIONS TO INFUSE SEC. 2(3) WITH MEANING.  BUT, AS THE HOUSE
COMMENTS QUOTED ABOVE DEMONSTRATE, THIS IS NOT A DOUBTFUL CASE.  THE
ORDINARY MEANING OF "EMPLOYEE" DOES NOT INCLUDE RETIRED WORKERS;
RETIRED EMPLOYEES HAVE CEASED TO WORK FOR ANOTHER FOR HIRE.     THE
DECISIONS ON WHICH THE BOARD RELIED IN CONSTRUING SEC. 2(3) TO THE
CONTRARY ARE WIDE OF THE MARK.  THE BOARD ENUMERATED "UNFAIR LABOR
PRACTICE SITUATIONS WHERE THE STATUTE HAS BEEN APPLIED TO PERSONS WHO
HAVE NOT BEEN INITIALLY HIRED BY AN EMPLOYER OR WHOSE EMPLOYMENT HAS
TERMINATED.  ILLUSTRATIVE ARE CASES IN WHICH THE BOARD HAS HELD THAT
APPLICANTS FOR EMPLOYMENT AND REGISTRANTS AT HIRING HALLS-- WHO HAVE
NEVER BEEN HIRED IN THE FIRST PLACE-- AS WELL AS PERSONS WHO HAVE QUIT
OR WHOSE EMPLOYERS HAVE GONE OUT OF BUSINESS ARE 'EMPLOYEES' EMBRACED
BY THE POLICIES OF THE ACT."  177 N.L.R.B.,AT 913 (CITATIONS OMITTED). 
YET ALL OF THESE CASES INVOLVED PEOPLE WHO, UNLIKE THE PENSIONERS HERE,
WERE MEMBERS OF THE ACTIVE WORK FORCE AVAILABLE FOR HIRE AND AT LEAST
IN THAT SENSE COULD BE IDENTIFIED AS "EMPLOYERS."  NO DECISION UNDER
THE ACT IS CITED, AND NONE TO OUR KNOWLEDGE EXISTS, IN WHICH AN
INDIVIDUAL WHO HAS CEASED WORK WITHOUT EXPECTATION OF FURTHER
EMPLOYMENT HAS BEEN HELD TO BE AN "EMPLOYEE." 

THE BOARD ALSO FOUND SUPPORT FOR ITS POSITION IN DECISIONS ARISING
UNDER SEC. 302(C)(5) OF THE LABOR MANAGEMENT RELATIONS ACT, 61 STAT.
157, 29 U.S.C. 186(C)(5).  SECTION 302 PROHIBITS, INTER ALIA, ANY
PAYMENT BY AN EMPLOYER TO ANY REPRESENTATIVE OF ANY OF HIS EMPLOYEES. 
SUBSECTION (C)(5) PROVIDES AN EXEMPTION FOR PAYMENTS TO AN EMPLOYEE
TRUST FUND ESTABLISHED "FOR THE SOLE AND EXCLUSIVE BENEFIT OF THE
EMPLOYEES OF SUCH EMPLOYER" AND ADMINISTERED BY EQUAL NUMBERS OF
REPRESENTATIVES OF THE EMPLOYER AND EMPLOYEES.  THE WORD "EMPLOYEE," AS
USED IN THAT PROVISION, HAS BEEN CONSTRUED TO INCLUDE "CURRENT
EMPLOYEES AND PERSONS WHO WERE . . . CURRENT EMPLOYEES BUT ARE NOW
RETIRED."  BLASSIE V. KROGER CO., 345 F.2D 58, 70 (CA8 1965).  /8/  THE
BOARD CONSIDERED THAT IT WOULD BE ANOMALOUS TO HOLD "THAT RETIRED
EMPLOYEES ARE NOT 'EMPLOYEES' WHOSE ONGOING BENEFITS ARE FIT SUBJECTS
OF BARGAINING UNDER SECTION 8(A)(5), WHILE UNDER (SEC. 302(C)) THEY ARE
'EMPLOYEES' FOR THE PURPOSE OF ADMINISTERING THE SAME HEALTH INSURANCE
BENEFITS.  IT WOULD CREATE THE FURTHER ANOMALY THAT A UNION WOULD NOT
BE ENTITLED TO ACT AS THE REPRESENTATIVE OF RETIRED EMPLOYEES UNDER
THEIR REPRESENTATIVE UNDER (SEC. 302(C))."  177 N.L.R.B.,AT 915.  /9/ 

YET THE RATIONALE OF BLASSIE IS NOT AT ALL IN POINT.  THE QUESTION
THERE WAS SIMPLY WHETHER UNDER SEC. 302(C)(5) RETIREES REMAIN ELIGIBLE
FOR BENEFITS OF TRUST FUNDS ESTABLISHED DURING THEIR ACTIVE
EMPLOYMENT.  THE CONCLUSION THAT THEY DO WAS COMPELLED BY THE FACT THAT
THE CONTRARY READING OF THE STATUTE WOULD HAVE MADE ILLEGAL
CONTRIBUTIONS TO PENSION PLANS, WHICH THE STATUTE EXPRESSLY
CONTEMPLATES IN SUBSECTIONS (A) AND (C).  /10/  NO COMPARABLE SITUATION
EXISTS IN THIS CASE.  FURTHERMORE, THERE IS NO ANOMALY IN THE
CONCLUSION THAT- RETIRED WORKERS ARE "EMPLOYEES" WITHIN SEC. 302(C)(5)
ENTITLED TO THE BENEFITS NEGOTIATED WHILE THEY WERE ACTIVE EMPLOYEES,
BUT ARE NOT "EMPLOYEES" WHOSE ONGOING BENEFITS ARE EMBRACED BY THE
BARGAINING OBLIGATION OF SEC. 8(A)(5).  CONTRARY TO THE BOARD'S
ASSERTION, THE UNION'S ROLE IN THE ADMINISTRATION OF THE FUND IS OF A
FAR DIFFERENT ORDER FROM ITS DUTIES AS COLLECTIVE-BARGAINING AGENT.  TO
ACCEPT THE BOARD'S REASONING THAT THE UNION'S SEC. 302(C)(5)
RESPONSIBILITIES DICTATE THE SCOPE OF THE SEC. 8(A)(5) COLLECTIVE
BARGAINING OBLIGATION WOULD BE TO ALLOW THE TAIL TO WAG THE DOG.  /11/ 

SECOND.  SECTION 9(A) OF THE LABOR RELATIONS ACT ACCORDS
REPRESENTATIVE STATUS ONLY TO THE LABOR ORGANIZATION SELECTED OR
DESIGNATED BY THE MAJORITY OF EMPLOYEES IN A "UNIT APPROPRIATE" "FOR
THE PURPOSES OF COLLECTIVE BARGAINING."  SECTION 9(B) GOES ON TO DIRECT
THE LABOR BOARD TO "DECIDE IN EACH CASE WHETHER, IN ORDER TO ASSURE TO
EMPLOYEES THE FULLEST FREEDOM IN EXERCISING THE RIGHTS GUARANTEED BY
THIS SUBCHAPTER, THE UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE
BARGAINING SHALL BE THE EMPLOYER UNIT, CRAFT UNIT, PLANT UNIT, OR
SUBDIVISION THEREOF . . . ."  49 STAT. 453, AS AMENDED, 29 U.S.C.
159(B).  WE HAVE ALWAYS RECOGNIZED THAT, IN MAKING THESE
DETERMINATIONS, THE BOARD IS ACCORDED BROAD DISCRETION.  SEE NLRB V.
HEARST PUBLICATIONS, 322 U.S.,AT 132-135; PITTSBURGH GLASS CO. V. NLRB,
313 U.S. 146 (1941).  MOREOVER, THE BOARD'S FINDINGS OF FACT, IF
SUPPORTED BY SUBSTANTIAL EVIDENCE, ARE CONCLUSIVE.  NATIONAL LABOR
RELATIONS ACT, SEC. 10(E), 49 STAT. 454, AS AMENDED, 29 U.S.C. 160(E). 
BUT THE BOARD'S POWERS IN RESPECT OF UNIT DETERMINATIONS ARE NOT
WITHOUT LIMITS, AND IF ITS DECISION "OVERSTEPS THE LAW," PACKARD CO. V.
NLRB, 330 U.S.,AT 491, IT MUST BE REVERSED. 

IN THIS CAUSE, IN ADDITION TO HOLDING THAT PENSIONERS ARE NOT
"EMPLOYEES" WITHIN THE MEANING OF THE COLLECTIVE-BARGAINING OBLIGATIONS
OF THE ACT, WE HOLD THAT THEY WERE NOT AND COULD NOT BE "EMPLOYEES"
INCLUDED IN THE BARGAINING UNIT.  THE UNIT DETERMINED BY THE BOARD TO
BE APPROPRIATE WAS COMPOSED OF "EMPLOYEES OF THE EMPLOYER'S PLANT . . .
WORKING ON HOURLY RATES, INCLUDING GROUP LEADERS WHO WORK ON HOURLY
RATES OF PAY . . . ."  APART FROM WHETHER RETIREES COULD BE CONSIDERED
"EMPLOYEES" WITHIN THIS LANGUAGE, THEY OBVIOUSLY WERE NOT EMPLOYEES
"WORKING" OR "WHO "WORK" ON HOURLY RATES OF PAY.  ALTHOUGH THOSE TERMS
MAY INCLUDE PERSONS ON TEMPORARY OR LIMITED ABSENCE FROM WORK, SUCH AS
EMPLOYEES ON MILITARY DUTY, IT WOULD UTTERLY DESTROY THE FUNCTION OF
LANGUAGE TO READ THEM AS EMBRACING THOSE WHOSE WORK HAS CEASED WITH NO
EXPECTATION OF RETURN. 

IN ANY EVENT, RETIREES COULD NOT PROPERLY BE JOINED WITH THE ACTIVE
EMPLOYEES IN THE UNIT THAT THE UNION REPRESENTS.  "AS A STANDARD, THE
BOARD MUST COMPLY . . . WITH THE REQUIREMENT THAT THE UNIT SELECTED
MUST BE ONE TO EFFECTUATE THE POLICY OF THE ACT, THE POLICY OF
EFFICIENT COLLECTIVE BARGAINING."  PITTSBURGH GLASS CO. V. NLRB, SUPRA,
AT 165.  THE BOARD MUST ALSO EXERCISE CARE THAT THE RIGHTS OF EMPLOYEES
UNDER SEC. 7 OF THE ACT "TO SELF-ORGANIZATION . . . (AND) TO BARGAIN
COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING" ARE DULY
RESPECTED.  IN LINE WITH THESE STANDARDS, THE BOARD REGARDS AS ITS
PRIMARY CONCERN IN RESOLVING UNIT ISSUES "TO GROUP TOGETHER ONLY
EMPLOYEES WHO HAVE SUBSTANTIAL MUTUAL INTERESTS IN WAGES, HOURS, AND
OTHER CONDITIONS OF EMPLOYMENT."  15 NLRBANN.REP.  39 (1950).  SUCH A
MUTUALITY OF INTEREST SERVES TO ASSURE THE COHERENCE AMONG EMPLOYEES
NECESSARY FOR EFFICIENT COLLECTIVE BARGAINING AND AT THE SAME TIME TO
PREVENT A FUNCTIONALLY DISTINCT MINORITY GROUP OF EMPLOYEES FROM BEING
SUBMERGED IN AN OVERLY LARGE UNIT.  SEE KALAMAZOO PAPER BOX CORP., 136
N.L.R.B. 134, 137 (1962). 

HERE, EVEN IF, AS THE BOARD FOUND, ACTIVE AND RETIRED EMPLOYEES HAVE
A COMMON CONCERN IN ASSURING THAT THE LATTER'S BENEFITS REMAIN
ADEQUATE, THEY PLAINLY DO NOT SHARE A COMMUNITY OF INTERESTS BROAD
ENOUGH TO JUSTIFY INCLUSION OF THE RETIREES IN THE BARGAINING UNIT. 
PENSIONERS' INTERESTS EXTEND ONLY TO RETIREMENT BENEFITS, TO THE
EXCLUSION OF WAGE RATES, HOURS, WORKING CONDITIONS, AND ALL OTHER TERMS
OF ACTIVE EMPLOYMENT.  INCORPORATION OF SUCH A LIMITED-PURPOSE
CONSTITUENCY IN THE BARGAINING UNIT WOULD CREATE THE POTENTIAL FOR
SEVERE INTERNAL CONFLICTS THAT WOULD IMPAIR THE UNIT'S ABILITY TO
FUNCTION AND WOULD DISRUPT THE PROCESSES OF COLLECTIVE BARGAINING. 
MOREOVER, THE RISK CANNOT BE OVERLOOKED THAT UNION REPRESENTATIVES ON
OCCASION MIGHT SEE FIT TO BARGAIN FOR IMPROVED WAGES OR OTHER
CONDITIONS FAVORING ACTIVE EMPLOYEES AT THE EXPENSE OF RETIREES'
BENEFITS.  /12/ 

BUT WE NEED NOT RELY ON OUR OWN ASSESSMENT OF THE PROBABLE
CONSEQUENCES OF INCLUDING RETIREES IN THE BARGAINING UNIT TO CONCLUDE
THAT THE RESULTING UNIT WOULD BE INAPPROPRIATE.  THE BOARD ITSELF HAS
PREVIOUSLY RECOGNIZED THAT RETIREES DO NOT HAVE A SUFFICIENT INTEREST
TO WARRANT PARTICIPATION IN THE ELECTION OF A COLLECTIVE-BARGAINING
AGENT.  IN PUBLIC SERVICE CORP. OF NEW JERSEY, 72 N.L.R.B. 224, 229-230
(1947), FOR EXAMPLE, THE BOARD STATED: 

"WE HAVE CONSIDERABLE DOUBT AS TO WHETHER OR NOT PENSIONERS ARE
EMPLOYEES WITHIN THE MEANING OF SECTION 2(3) OF THE ACT, SINCE THEY NO
LONGER PERFORM ANY WORK FOR THE EMPLOYERS, AND HAVE LITTLE EXPECTANCY
OF RESUMING THEIR FORMER EMPLOYMENT.  IN ANY EVENT, EVEN IF PENSIONERS
WERE TO BE CONSIDERED AS EMPLOYEES, WE BELIEVE THAT THEY LACK A
SUBSTANTIAL COMMUNITY OF INTEREST WITH THE EMPLOYEES WHO ARE PRESENTLY
IN THE ACTIVE SERVICE OF THE EMPLOYERS.  ACCORDINGLY, WE FIND THAT
PENSIONERS ARE INELIGIBLE TO VOTE IN THE ELECTION."  /13/ THE BOARD
ARGUES, HOWEVER, THAT THE PENSIONERS' INELIGIBILITY TO VOTE IS NOT
DISPOSITIVE OF THEIR RIGHT TO MEMBERSHIP IN THE BARGAINING UNIT, SINCE
THE FRANCHISE AND THE RIGHT TO MEMBERSHIP DEPEND UPON DIFFERENT LEVELS
OF INTEREST IN THE UNIT.  /14/  YET IN W. D. BYRON & SONS OF MARYLAND,
INC., 55 N.L.R.B. 172, 174-175 (1944), WHICH THE BOARD FOUND
CONTROLLING IN PUBLIC SERVICE CORP. OF NEU JERSEY, SEE 72 N.L.R.B.,AT
230 N. 10, THE BOARD NOT MERELY HELD INELIGIBLE TO VOTE, BUT EXPRESSLY
EXCLUDED FROM THE BARGAINING UNIT PENSIONERS WHO HAD LITTLE EXPECTATION
OF FURTHER EMPLOYMENT.  IN ANY EVENT, IT WOULD BE CLEARLY INCONSISTENT
WITH THE MAJORITY RULE PRINCIPLE OF THE ACT TO DENY A MEMBER OF THE
UNIT AT THE TIME OF AN ELECTION A VOICE IN THE SELECTION OF HIS
BARGAINING REPRESENTATIVE.  /15/  THE BOARD'S OWN HOLDINGS THUS COMPEL
THE CONCLUSION THAT A UNIT COMPOSED OF ACTIVE AND RETIRED WORKERS WOULD
BE INAPPROPRIATE. 

THIRD.  THE BOARD FOUND THAT BARGAINING OVER PENSIONERS' RIGHTS HAS
BECOME AN ESTABLISHED INDUSTRIAL PRACTICE.  BUT INDUSTRIAL PRACTICE
CANNOT ALTER THE CONCLUSIONS THAT RETIREES ARE NEITHER "EMPLOYEES" NOR
BARGAINING UNIT MEMBERS.  THE PARTIES DISPUTE WHETHER A PRACTICE OF
BARGAINING OVER PENSIONERS' BENEFITS EXISTS AND, IF SO, WHETHER IT
REFLECTS THE VIEWS OF LABOR AND MANAGEMENT THAT THE SUBJECT IS NOT
MERELY A CONVENIENT BUT A MANDATORY TOPIC OF NEGOTIATION.  /16/  BUT
EVEN IF INDUSTRY COMMONLY REGARDS RETIREES'  BENEFITS AS A STATUTORY
SUBJECT OF BARGAINING, THAT WOULD AT MOST, AS WE SUGGESTED IN
FIBREBOARD CORP. V. NLRB, 379 U.S. 203, 211 (1964), REFLECT THE
INTERESTS OF EMPLOYERS AND EMPLOYEES IN THE SUBJECT MATTER AS WELL AS
ITS AMENABILITY TO THE COLLECTIVE-BARGAINING PROCESS; IT WOULD NOT BE
DETERMINATIVE.  COMMON PRACTICE CANNOT CHANGE THE LAW AND MAKE INTO
BARGAINING UNIT "EMPLOYEES" THOSE WHO ARE NOT. 

        III 

EVEN IF PENSIONERS ARE NOT BARGAINING UNIT "EMPLOYEES," ARE THEIR
BENEFITS, NONETHELESS, A MANDATORY SUBJECT OF COLLECTIVE BARGAINING AS
"TERMS AND CONDITIONS OF EMPLOYMENT" OF THE ACTIVE EMPLOYEES WHO REMAIN
IN THE UNIT?  THE BOARD HELD, ALTERNATIVELY, THAT THEY ARE, ON THE
GROUND THAT THEY "VITALLY" AFFECT THE "TERMS AND CONDITIONS OF
EMPLOYMENT" OF ACTIVE EMPLOYEES PRINCIPALLY BY INFLUENCING THE VALUE OF
BOTH THEIR CURRENT AND FUTURE BENEFITS.  177 N.L.R.B., AT 915.  /17/
THE BOARD EXPLAINED:  "IT IS NOT UNCOMMON TO GROUP ACTIVE AND RETIRED
EMPLOYEES UNDER A SINGLE HEALTH INSURANCE CONTRACT WITH THE RESULT THAT
. . . IT IS THE SIZE AND EXPERIENCE OF THE ENTIRE GROUP WHICH MAY
DETERMINE INSURANCE RATES."  IBID.  CONSEQUENTLY, ACTIVE EMPLOYEES MAY
"BENEFIT FROM THE MEMBERSHIP OF RETIRED EMPLOYEES IN THE GROUP WHOSE
PARTICIPATION ENLARGES ITS SIZE AND MIGHT THEREBY LOWER COSTS PER
PARTICIPANT."  IBID.  FURTHERMORE, THE ACTUAL VALUE OF FUTURE BENEFITS
DEPENDS UPON CONTINGENCIES, SUCH AS INFLATION AND CHANGES IN PUBLIC
LAW, WHICH THE PARTIES CANNOT ADEQUATELY ANTICIPATE AND OVER WHICH THEY
HAVE LITTLE OR NO CONTROL.  BY ESTABLISHING A PRACTICE OF REPRESENTING
RETIRED EMPLOYEES IN RESOLVING THOSE CONTINGENCIES AS THEY ARISE,
ACTIVE WORKERS CAN INSURE THAT THEIR OWN RETIREMENT BENEFITS WILL
SURVIVE THE PASSAGE OF TIME.  THIS, IN TURN, THE BOARD CONTENDS,
FACILITATES THE PEACEFUL SETTLEMENT OF DISPUTES OVER ACTIVE EMPLOYEES'
PENSION PLANS.  THE BOARD'S ARGUMENTS ARE NOT INSUBSTANTIAL, BUT THEY
DO NOT WITHSTAND CAREFUL SCRUTINY. 

SUBJECTS FOR MANDATORY BARGAINING.  SEE, E.G., FIBREBOARD CORP. V.
NLRB, SUPRA, AT 220-221 (STEWART, J., CONCURRING); RICHFIELD OIL CORP.
V. NLRB, 97 U.S.APP.D.C. 383, 389-390, 231 F.2D 717, 723-724 (1956). 
BUT IT DOES ESTABLISH A LIMITATION AGAINST WHICH PROPOSED TOPICS MUST
BE MEASURED.  IN GENERAL TERMS, THE LIMITATION INCLUDES ONLY ISSUES
THAT SETTLE AN ASPECT OF THE RELATIONSHIP BETWEEN THE EMPLOYER AND
EMPLOYEES.  SEE, E.G., NLRB V. BORG-WARNER CORP., 356 U.S. 342 (1958). 
ALTHOUGH NORMALLY MATTERS INVOLVING INDIVIDUALS OUTSIDE THE EMPLOYMENT
RELATIONSHIP DO NOT FALL WITHIN THAT CATEGORY, THEY ARE NOT WHOLLY
EXCLUDED.  IN TEAMSTERS UNION V. OLIVER, 358 U.S. 283 (1959), FOR
EXAMPLE, AN AGREEMENT HAD BEEN NEGOTIATED IN THE TRUCKING INDUSTRY,
ESTABLISHING A MINIMUM RENTAL THAT CARRIERS WOULD PAY TO TRUCK OWNERS
WHO DROVE THEIR OWN VEHICLES IN THE CARRIERS'  SERVICE IN PLACE OF THE
LATTER'S EMPLOYEES.  WITHOUT DETERMINING WHETHER THE OWNER-DRIVERS WERE
THEMSELVES "EMPLOYEES," WE HELD THAT THE MINIMUM RENTAL WAS A MANDATORY
SUBJECT OF BARGAINING, AND HENCE IMMUNE FROM STATE ANTITRUST LAWS,
BECAUSE THE TERM "WAS INTEGRAL TO THE ESTABLISHMENT OF A STABLE WAGE
STRUCTURE FOR CLEARLY COVERED EMPLOYEE-DRIVERS."  UNITED STATES V.
DRUM, 368 U.S. 370, 382-383, N. 26 (1962).  /18/  SIMILARLY, IN
FIBREBOARD CORP. V. NLRB, SUPRA, AT 215, WE HELD THAT "THE TYPE OF
'CONTRACTING OUT' INVOLVED IN THIS CASE-- THE REPLACEMENT OF EMPLOYEES
IN THE EXISTING BARGAINING UNIT WITH THOSE OF AN INDEPENDENT CONTRACTOR
TO DO THE SAME WORK UNDER SIMILAR CONDITIONS OF EMPLOYMENT-- IS A
STATUTORY SUBJECT OF COLLECTIVE BARGAINING . . . ."  AS WE SAID THERE,
ID., AT 213, "THE WORK OF THE EMPLOYEES IN THE BARGAINING UNIT WAS LET
OUT PIECEMEAL IN OLIVER, WHEREAS HERE THE WORK OF THE ENTIRE UNIT HAS
BEEN CONTRACTED OUT."     THE BOARD URGES THAT OLIVER AND FIBREBOARD
PROVIDE THE PRINCIPLE GOVERNING THIS CAUSE.  THE COMPANY, ON THE OTHER
HAND, WOULD DISTINGUISH THOSE DECISIONS ON THE GROUND THAT THE UNIONS
THERE SOUGHT TO PROTECT EMPLOYEES FROM OUTSIDE THREATS, NOT TO
REPRESENT THE INTERESTS OF THIRD PARTIES.  WE AGREE WITH THE BOARD THAT
THE PRINCIPLE OF OLIVER AND FIBREBOARD IS RELEVANT HERE; IN EACH CASE
THE QUESTION IS NOT WHETHER THE THIRD-PARTY CONCERN IS ANTAGONISTIC TO
OR COMPATIBLE WITH THE INTERESTS OF BARGAINING-UNIT EMPLOYEES, BUT
WHETHER IT VITALLY AFFECTS THE "TERMS AND CONDITIONS" OF THEIR
EMPLOYMENT.  /19/  BUT WE DISAGREE WITH THE BOARD'S ASSESSMENT OF THE
SIGNIFICANCE OF A CHANGE IN RETIREES' BENEFITS TO THE "TERMS AND
CONDITIONS OF EMPLOYMENT" OF ACTIVE EMPLOYEES. 

THE BENEFITS THAT ACTIVE WORKERS MAY REAP BY INCLUDING RETIRED
EMPLOYEES UNDER THE SAME HEALTH INSURANCE CONTRACT ARE SPECULATIVE AND
INSUBSTANTIAL AT BEST.  AS THE BOARD ITSELF ACKNOWLEDGES IN ITS BRIEF,
THE RELATIONSHIP BETWEEN THE INCLUSION OF RETIREES AND THE OVERALL
INSURANCE RATE IS UNCERTAIN.  ADDING INDIVIDUALS INCREASES THE GROUP
EXPERIENCE AND THEREBY GENERALLY TENDS TO LOWER THE RATE, BUT INCLUDING
PENSIONERS, WHO ARE LIKELY TO HAVE HIGHER MEDICAL EXPENSES, MAY MORE
THAN OFFSET THAT EFFECT.  IN ANY EVENT, THE IMPACT ONE WAY OR THE OTHER
ON THE "TERMS AND CONDITIONS OF EMPLOYMENT" OF ACTIVE EMPLOYEES IS
HARDLY COMPARABLE TO THE LOSS OF JOBS THREATENED IN OLIVER AND
FIBREBOARD.  IN FIBREBOARD, AFTER HOLDING THAT "THE REPLACEMENT OF
EMPLOYEES IN THE EXISTING BARGAINING UNIT WITH THOSE OF AN INDEPENDENT
CONTRACTOR TO DO THE SAME WORK UNDER SIMILAR CONDITIONS OF EMPLOYMENT"
IS A MANDATORY SUBJECT OF BARGAINING, WE NOTED THAT OUR DECISION DID
"NOT ENCOMPASS OTHER FORMS OF 'CONTRACTING OUT' OR 'SUBCONTRACTING'
WHICH ARISE DAILY IN OUR COMPLEX ECONOMY."  379 U.S.,AT 215.  THE
INCLUSION OF RETIREES IN THE SAME INSURANCE CONTRACT SURELY HAS EVEN
LESS IMPACT ON THE "TERMS AND CONDITIONS OF EMPLOYMENT" OF ACTIVE
EMPLOYEES THAN SOME OF THE CONTRACTING ACTIVITIES THAT WE EXCEPTED FROM
OUR HOLDING IN FIBREBOARD. 

THE MITIGATION OF FUTURE UNCERTAINTY AND THE FACILITATION OF
AGREEMENT ON ACTIVE EMPLOYEES' RETIREMENT PLANS, THAT THE BOARD SAID
WOULD FOLLOW FROM THE UNION'S REPRESENTATION OF PENSIONERS, ARE EQUALLY
PROBLEMATICAL.  TO BE SURE, THE FUTURE RETIREMENT BENEFITS OF ACTIVE
WORKERS ARE PART AND PARCEL OF THEIR OVERALL COMPENSATION AND HENCE A
WELL-ESTABLISHED STATUTORY SUBJECT OF BARGAINING.  MOREOVER, PROVISIONS
OF THOSE PLANS TO GUARD AGAINST FUTURE CONTINGENCIES ARE EQUALLY
SUBSUMED UNDER THE COLLECTIVE-BARGAINING OBLIGATION.  UNDER THE BOARD'S
THEORY, ACTIVE EMPLOYEES UNDERTAKE TO REPRESENT PENSIONERS IN ORDER TO
PROTECT THEIR OWN RETIREMENT BENEFITS, JUST AS IF THEY WERE BARGAINING
FOR, SAY, A COST-OF-LIVING ESCALATION CLAUSE.  BUT THERE IS A CRUCIAL
DIFFERENCE.  HAVING ONCE FOUND IT ADVANTAGEOUS TO BARGAIN FOR
IMPROVEMENTS IN PENSIONERS' BENEFITS, ACTIVE WORKERS ARE NOT FOREVER
THEREAFTER BOUND TO THAT VIEW OR OBLIGED TO NEGOTIATE IN BEHALF OF
RETIREES AGAIN.  /20/  TO THE CONTRARY, THEY ARE FREE TO DECIDE, FOR
EXAMPLE, THAT CURRENT INCOME IS PREFERABLE TO GREATER CERTAINTY IN
THEIR OWN RETIREMENT BENEFITS OR, INDEED, TO THEIR RETIREMENT BENEFITS
ALTOGETHER.  BY ADVANCING PENSIONERS' INTERESTS NOW, ACTIVE EMPLOYEES,
THEREFORE, HAVE NO ASSURANCE THAT THEY WILL BE THE BENEFICIARIES OF
SIMILAR REPRESENTATION WHEN THEY RETIRE.  THE INSURANCE AGAINST FUTURE
CONTINGENCIES THAT THEY MAY BUY IN NEGOTIATING BENEFITS FOR RETIREES IS
THUS A HAZARDOUS AND, THEREFORE, IMPROBABLE INVESTMENT, FAR DIFFERENT
FROM A COST-OF-LIVING ESCALATION CLAUSE THAT THEY COULD CONTRACTUALLY
ENFORCE IN COURT.  SEE N. 20, SUPRA.  WE FIND, ACCORDINGLY, THAT THE
EFFECT THAT THE BOARD ASSERTS BARGAINING IN BEHALF OF PENSIONERS WOULD
HAVE ON THE NEGOTIATION OF ACTIVE EMPLOYEES' RETIREMENT PLANS IS TOO
SPECULATIVE A FOUNDATION ON WHICH TO BASE AN OBLIGATION TO BARGAIN. 

NOR DOES THE BOARD'S CITATION OF INDUSTRIAL PRACTICE PROVIDE ANY
GROUND FOR CONCLUDING OTHERWISE.  THE BOARD STATES IN ITS BRIEF THAT
"(NEITHER THE BARGAINING REPRESENTATIVE NOR THE ACTIVE EMPLOYEES . . .
CAN HELP BUT RECOGNIZE THAT THE ACTIVE EMPLOYEES OF TODAY ARE THE
RETIREES OF TOMORROW-- INDEED, SUCH A REALIZATION UNDOUBTEDLY UNDERLIES
THE WIDESPREAD INDUSTRIAL PRACTICE OF BARGAINING ABOUT BENEFITS OF
THOSE WHO HAVE ALREADY RETIRED . . . AND EXPLAINS THE VIGOROUS INTEREST
WHICH THE UNION HAS TAKEN IN THIS CASE."  BUT ACCEPTING THE BOARD'S
FINDING THAT THE INDUSTRIAL PRACTICE EXISTS, WE FIND NOWHERE A PARTICLE
OF EVIDENCE CITED SHOWING THAT THE EXPLANATION FOR THIS LIES IN THE
CONCERN OF ACTIVE WORKERS FOR THEIR OWN FUTURE RETIREMENT BENEFITS. 

WE RECOGNIZE THAT "CLASSIFICATION OF BARGAINING SUBJECTS AS 'TERMS
(AND) CONDITIONS OF EMPLOYMENT' IS A MATTER CONCERNING WHICH THE BOARD
HAS SPECIAL EXPERTISE."  MEAT CUTTERS V. JEWEL TEA, 381 U.S. 676, 685
686 (1965).  THE BOARD'S HOLDING IN THIS CAUSE, HOWEVER, DEPENDS ON THE
APPLICATION OF LAW TO FACTS, AND THE LEGAL STANDARD TO BE APPLIED IS
ULTIMATELY FOR THE COURTS TO DECIDE AND ENFORCE.  WE THINK THAT IN
HOLDING THE "TERMS AND CONDITIONS OF EMPLOYMENT" OF ACTIVE EMPLOYEES TO
BE VITALLY AFFECTED BY PENSIONERS' BENEFITS, THE BOARD HERE SIMPLY
NEGLECTED TO GIVE THE ADVERB ITS ORDINARY MEANING.  CF. NLRB V. BROWN,
380 U.S. 278, 292 (1965). 

        IV 

THE QUESTION REMAINS WHETHER THE COMPANY COMMITTED AN UNFAIR LABOR
PRACTICE BY OFFERING RETIREES AN EXCHANGE FOR THEIR WITHDRAWAL FROM THE
ALREADY NEGOTIATED HEALTH INSURANCE PLAN.  AFTER DEFINING "TO BARGAIN
COLLECTIVELY" AS MEETING AND CONFERRING "WITH RESPECT TO WAGES, HOURS,
AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT," SEC. 8(D) OF THE ACT
GOES ON TO PROVIDE IN RELEVANT PART THAT "WHERE THERE IS IN EFFECT A
COLLECTIVE-BARGAINING CONTRACT COVERING EMPLOYEES IN AN INDUSTRY
AFFECTING COMMERCE, THE DUTY TO BARGAIN COLLECTIVELY SHALL ALSO MEAN
THAT NO PARTY TO SUCH CONTRACT SHALL TERMINATE OR MODIFY SUCH CONTRACT"
EXCEPT UPON (1) TIMELY NOTICE TO THE OTHER PARTY, (2) AN OFFER TO MEET
AND CONFER "FOR THE PURPOSE OF NEGOTIATING A NEW CONTRACT OR A CONTRACT
CONTAINING THE PROPOSED MODIFICATIONS," (3) TIMELY NOTICE TO THE
FEDERAL MEDIATION AND CONCILIATION SERVICE AND COMPARABLE STATE OR
TERRITORIAL AGENCIES OF THE EXISTENCE OF A "DISPUTE," AND (4)
CONTINUATION "IN FULL FORCE AND EFFECT (OF) . . . ALL THE TERMS AND
CONDITIONS OF THE EXISTING CONTRACT . . . UNTIL (ITS) EXPIRATION DATE .
. . ."  /21/  THE BOARD'S TRIAL EXAMINER RULED THAT THE COMPANY'S
ACTION IN OFFERING RETIREES A CHANGE IN THEIR HEALTH PLAN DID NOT
AMOUNT TO A "MODIFICATION" OF THE COLLECTIVE-BARGAINING AGREEMENT IN
VIOLATION OF SEC. 8(D), SINCE THE PENSIONERS HAD MERELY BEEN GIVEN AN
ADDITIONAL OPTION THAT THEY WERE FREE TO ACCEPT OR DECLINE AS THEY SAW
FIT.  THE BOARD REJECTED THAT CONCLUSION ON THE GROUND THAT THERE WERE
SEVERAL POSSIBLE WAYS OF ADJUSTING THE NEGOTIATED PLAN TO THE MEDICARE
PROVISIONS AND THE COMPANY "MODIFIED" THE CONTRACT BY UNILATERALLY
CHOOSING ONE OF THEM.  THE COMPANY NOW URGES, IN EFFECT, THAT WE ADOPT
THE VIEWS OF THE TRIAL EXAMINER.  WE NEED NOT RESOLVE, HOWEVER, WHETHER
THERE WAS A "MODIFICATION" WITHIN THE MEANING OF SEC. 8(D), BECAUSE WE
HOLD THAT EVEN IF THERE WAS, A "MODIFICATION" IS A PROHIBITED UNFAIR
LABOR PRACTICE ONLY WHEN IT CHANGES A TERM THAT IS A MANDATORY RATHER
THAN A PERMISSIVE SUBJECT OF BARGAINING. 

PARAGRAPH (4) OF SEC. 8(D), OF COURSE, REQUIRES THAT A PARTY
PROPOSING A MODIFICATION CONTINUE "IN FULL FORCE AND EFFECT . . . ALL
THE TERMS AND CONDITIONS OF THE EXISTING CONTRACT" UNTIL ITS
EXPIRATION.  VIEWED IN ISOLATION FROM THE REST OF THE PROVISION, THAT
LANGUAGE WOULD PRECLUDE ANY DISTINCTION BETWEEN CONTRACT OBLIGATIONS
THAT ARE "TERMS AND CONDITIONS OF EMPLOYMENT" AND THOSE THAT ARE NOT. 
BUT IN CONSTRUING SEC. 8(D), "'WE MUST NOT BE GUIDED BY A SINGLE
SENTENCE OR MEMBER OF A SENTENCE, BUT LOOK TO THE PROVISIONS OF THE
WHOLE LAW, AND TO ITS OBJECT AND POLICY.'"  MASTRO PLASTICS CORP. V.
NLRB, 350 U.S. 270, 285 (1956) (QUOTING UNITED STATES V. BOISDOR'S
HEIRS, 8 HOW.  113, 122).  SEE ALSO NLRB V. LION OIL CO., 352 U.S. 282,
288 (1957).  SEEN IN THAT LIGHT, SEC. 8(D) EMBRACES ONLY MANDATORY
TOPICS OF BARGAINING.  THE PROVISION BEGINS BY DEFINING "TO BARGAIN
COLLECTIVELY" AS MEETING AND CONFERRING "WITH RESPECT TO WAGES, HOURS,
AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT."  IT THEN GOES ON TO
STATE THAT "THE DUTY TO BARGAIN COLLECTIVELY SHALL ALSO MEAN" THAT MID
TERM UNILATERAL MODIFICATIONS AND TERMINATIONS ARE PROHIBITED. 
ALTHOUGH THIS PART OF THE SECTION IS INTRODUCED BY A "PROVISO" CLAUSE,
SEE N. 21, SUPRA, IT QUITE PLAINLY IS TO BE CONSTRUED IN PARI MATERIA
WITH THE PRECEDING DEFINITION.  ACCORDINGLY, JUST AS SEC. 8(D) DEFINES
THE OBLIGATION TO BARGAIN TO BE WITH RESPECT TO MANDATORY TERMS ALONE,
SO IT PRESCRIBES THE DUTY TO MAINTAIN ONLY MANDATORY TERMS WITHOUT
UNILATERAL MODIFICATION FOR THE DURATION OF THE COLLECTIVE-BARGAINING
AGREEMENT.  /22/ 

THE RELEVANT PURPOSE OF SEC. 8(D) THAT EMERGES FROM THE LEGISLATIVE
HISTORY OF THE ACT TOGETHER WITH THE TEXT OF THE PROVISION CONFIRMS
THIS UNDERSTANDING.  THE SECTION STEMS FROM THE 1947 REVISION OF THE
ACT, AN IMPORTANT THEME OF WHICH WAS TO STABILIZE COLLECTIVE-BARGAINING
AGREEMENTS.  THE SENATE BILL, IN PARTICULAR, CONTAINED PROVISIONS IN
SECS. 8(D) AND 301(A) TO PROHIBIT UNILATERAL MID-TERM MODIFICATIONS AND
TERMINATIONS AND TO CONFER FEDERAL JURISDICTION OVER SUITS FOR CONTRACT
VIOLATIONS.  SEE S. 1126, 80TH CONG., 1ST SESS., SECS. 8(D), 301(A). 
THE BILL ALSO INCLUDED PROVISIONS TO MAKE IT AN UNFAIR LABOR PRACTICE
FOR AN EMPLOYER OR LABOR ORGANIZATION "TO VIOLATE THE TERMS OF A
COLLECTIVE-BARGAINING AGREEMENT."  ID., SECS. 8(A)(6), 8(B)(5).  IN
CONFERENCE THE SENATE'S PROPOSED SECS. 8(D) AND 301(A) WERE ADOPTED
WITH RELATIVELY FEW CHANGES.  SEE H.R. CONF. REP. NO. 510, SUPRA, AT 34
35, 65-66.  THE PROVISIONS TO MAKE CONTRACT VIOLATIONS AN UNFAIR LABOR
PRACTICE, ON THE OTHER HAND, WERE REJECTED WITH THE EXPLANATION THAT
"(ONCE PARTIES HAVE MADE A COLLECTIVE BARGAINING CONTRACT THE
ENFORCEMENT OF THAT CONTRACT SHOULD BE LEFT TO THE USUAL PROCESSES OF
THE LAW AND NOT TO THE NATIONAL LABOR RELATIONS BOARD."  ID., AT 42. 
THE PURPOSE OF THE PROSCRIPTION OF UNILATERAL MID-TERM MODIFICATIONS
AND TERMINATIONS IN SEC. 8(D) CANNOT BE, THEREFORE, SIMPLY TO ASSURE
ADHERENCE TO CONTRACT TERMS.  AS FAR AS UNFAIR-LABOR-PRACTICE REMEDIES
ARE CONCERNED, THAT GOAL WAS TO BE ACHIEVED THROUGH OTHER UNFAIR-LABOR
PRACTICE PROVISIONS THAT WERE REJECTED IN FAVOR OF CUSTOMARY JUDICIAL
PROCEDURES.  SEE DOWD BOX CO. V. COURTNEY, 368 U.S. 502, 510-513
(1962). 

THE STRUCTURE AND LANGUAGE OF SEC. 8(D) POINT TO A MORE SPECIALIZED
PURPOSE THAN MERELY PROMOTING GENERAL CONTRACT COMPLIANCE.  THE
CONDITIONS FOR A MODIFICATION OR TERMINATION SET OUT IN PARAGRAPHS (1)
THROUGH (4) PLAINLY ARE DESIGNED TO REGULATE MODIFICATIONS AND
TERMINATIONS SO AS TO FACILITATE AGREEMENT IN PLACE OF ECONOMIC
WARFARE.  THUS, THE PARTY DESIRING TO MAKE A MODIFICATION OR
TERMINATION IS REQUIRED TO SERVE A WRITTEN NOTICE ON THE OTHER PARTY,
OFFER TO MEET AND CONFER, NOTIFY MEDIATION AND CONCILIATION AGENCIES IF
NECESSARY, AND MEANWHILE MAINTAIN CONTRACT RELATIONS.  ACCORDINGLY, WE
THINK WE ACCURATELY DESCRIBED THE RELEVANT AIM OF SEC. 8(D) WHEN WE
SAID IN MASTRO PLASTICS CORP. V. NLRB, SUPRA, AT 284, THAT THE
PROVISION "SEEKS TO BRING ABOUT THE TERMINATION AND MODIFICATION OF
COLLECTIVE-BARGAINING AGREEMENTS WITHOUT INTERRUPTING THE FLOW OF
COMMERCE OR THE PRODUCTION OF GOODS . . . ." 

IF THAT IS CORRECT, THE DISTINCTION THAT WE DRAW BETWEEN MANDATORY
AND PERMISSIVE TERMS OF BARGAINING FITS THE STATUTORY PURPOSE.  BY ONCE
BARGAINING AND AGREEING ON A PERMISSIVE SUBJECT, THE PARTIES,
NATURALLY, DO NOT MAKE THE SUBJECT A MANDATORY TOPIC OF FUTURE
BARGAINING.  WHEN A PROPOSED MODIFICATION IS TO A PERMISSIVE TERM,
THEREFORE, THE PURPOSE OF FACILITATING ACCORD ON THE PROPOSAL IS NOT AT
ALL IN POINT, SINCE THE PARTIES ARE NOT REQUIRED UNDER THE STATUTE TO
BARGAIN WITH RESPECT TO IT.  THE IRRELEVANCE OF THE PURPOSE IS
DEMONSTRATED BY THE IRRELEVANCE OF THE PROCEDURES THEMSELVES OF SEC.
8(D).  PARAGRAPH (2), FOR EXAMPLE, REQUIRES AN OFFER "TO MEET AND
CONFER WITH THE OTHER PARTY FOR THE PURPOSE OF NEGOTIATING A NEW
CONTRACT OR A CONTRACT CONTAINING THE PROPOSED MODIFICATIONS."  BUT
SUCH AN OFFER IS MEANINGLESS IF A PARTY IS STATUTORILY FREE TO REFUSE
TO NEGOTIATE ON THE PROPOSED CHANGE TO THE PERMISSIVE TERM.  THE
NOTIFICATION TO MEDIATION AND CONCILIATION SERVICES REFERRED TO IN
PARAGRAPH (3) WOULD BE EQUALLY MEANINGLESS, IF REQUIRED AT ALL.  /23/
WE THINK IT WOULD BE NO LESS BESIDE THE POINT TO READ PARAGRAPH (4) OF
SEC. 8(D) AS REQUIRING CONTINUED ADHERENCE TO PERMISSIVE AS WELL AS
MANDATORY TERMS.  THE REMEDY FOR A UNILATERAL MID-TERM MODIFICATION TO
A PERMISSIVE TERM LIES IN AN ACTION FOR BREACH OF CONTRACT, SEE N. 20,
SUPRA, NOT IN AN UNFAIR-LABOR-PRACTICE PROCEEDING.  /24/ 

AS A UNILATERAL MID-TERM MODIFICATION OF A PERMISSIVE TERM SUCH AS
RETIREES' BENEFITS DOES NOT, THEREFORE, VIOLATE SEC. 8(D), THE JUDGMENT
OF THE COURT OF APPEALS IS

              AFFIRMED.     /0/  TOGETHER WITH NO. 70-39, NATIONAL
LABOR RELATIONS BOARD V. PITTSBURGH PLATE GLASS CO., CHEMICAL DIVISION,
ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  SEE, E.G., NLRB V. BLACK-CLAWSON CO., 210 F.2D 523 (CA6 1954)
(DICTUM); NLRB V. GENERAL MOTORS CORP., 179 F.2D 221 (CA2 1950); W. W.
CROSS & CO. V. NLRB, 174 F.2D 875 (CA1 1949); INLAND STEEL CO.V. NLRB,
170 F.2D 247 (CA7 1948). 

/2/  SEE, E.G., NLRB V. SCAM INSTRUMENT CORP., 394 F.2D 884 (CA7
1968).  CF., E.G., NLRB B. HUTTIG SASH & DOOR CO., 377 F.2D 964 (CA8
1967); C & S INDUSTRIES, INC., 158 N.L.R.B. 454 (1966).  SEE ALSO NLRB
V. KATZ, 369 U.S. 736 (1962).     /3/  THE BOARD HAS SINCE ADHERED TO
ITS DECISION IN:  UNION CARBIDE CORP.-LINDE DIV., 76 L.R.R.M. 1585
(1971); WESTINGHOUSE ELECTRIC CORP., 76 L.R.R.M. 1451 (1971); UNION
CARBIDE CORP., 75 L.R.R.M. 1548 (1970); AND HOOKER CHEMICAL CORP., 75
L.R.R.M. 1357 (1970). 

/4/  THE LABOR BOARD'S DIRECTION OF ELECTION DESCRIBED THE
BARGAINING UNIT AS:  "ALL EMPLOYEES OF THE EMPLOYER'S PLANT AND
LIMESTONE MINE AT BARBERTON, OHIO, WORKING ON HOURLY RATES, INCLUDING
GROUP LEADERS WHO WORK ON HOURLY RATES OF PAY, BUT EXCLUDING SALARIED
EMPLOYEES AND SUPERVISORS . . . ."  (EMPHASIS SUPPLIED.)  THE UNION WAS
RECERTIFIED IN 1970, AFTER THE BOARD'S DECISION IN THIS CAUSE, WITH THE
SAME UNIT DESCRIPTION EMBRACING ONLY EMPLOYEES WORKING ON HOURLY
RATES. 

/5/  HOSPITAL BENEFITS UNDER MEDICARE ARE PROVIDED AUTOMATICALLY TO
ANY SOCIAL SECURITY ANNUITANT 65 OR OVER.  MEDICAL BENEFITS ARE
OPTIONAL AND, AT THE RELEVANT TIME PERIOD, REQUIRED A MONTHLY THREE
DOLLAR PAYMENT PER PERSON. 

/6/  THE BOARD FOUND THAT THE COMPANY HAD VIOLATED NOT ONLY SEC.
8(A)(5) BUT SEC. 8(A)(1), AND THE BOARD FRAMED ITS CEASE-AND-DESIST
ORDER ACCORDINGLY.  SECTION 8(A)(1) MAKES IT AN UNFAIR LABOR PRACTICE
FOR AN EMPLOYER "TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN
THE EXERCISE OF THE RIGHTS GUARANTEED IN" SEC. 7, WHICH INCLUDE "THE
RIGHT TO SELF-ORGANIZATION . . . (AND) TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING . . . ."  49 STAT. 452, AS
AMENDED, 29 U.S.C. 158(A)(1), 157.  HOWEVER, THE SEC. 8(A)(1) VIOLATION
DERIVES FROM THE ALLEGED SEC. 8(A)(5) MISCONDUCT AND, THEREFORE,
PRESENTS NO SEPARATE ISSUES. 

/7/  THE COURT OF APPEALS BELOW SEEMS TO HAVE READ THE BOARD'S
DECISION AS HOLDING THAT RETIREES MIGHT BE CONSIDERED "EMPLOYEES" UNDER
THE ACT, BUT NOT AS FINDING THAT THE RETIREES IN THIS CASE WERE.  SEE
427 F.2D,AT 944 N. 14.  WE DO NOT READ THE BOARD'S DECISION THAT WAY. 
THE BOARD SAID:  "FOR THE REASONS STATED ABOVE, THE 'UNDERLYING
ECONOMIC FACTS' OF THIS CASE PERSUADE US THAT CONGRESS INTENDED TO
CONFER EMPLOYEE STATUS ON RETIRED EMPLOYEES WITH RESPECT TO HEALTH
INSURANCE PLANS AFFECTING THEM."  177 N.L.R.B. 911, 914. 

/8/  SEE ALSO GARVISON V. JENSEN, 355 F.2D 487 (CA9 1966); LOCAL NO.
688, INT'L BRO. OF TEAMSTERS V. TOWNSEND, 345 F.2D 77 (CA8 1965). 
TERM "EMPLOYEE" AS USED IN THAT LEGISLATION HAS THE SAME MEANING AS
WHEN USED IN THE NATIONAL LABOR RELATIONS ACT.  61 STAT. 161, 29 U.S.C.
142(3). 

/9/  ALTHOUGH THE BOARD REFERRED TO SEC. 302(B) RATHER THAN SEC.
302(C), IT IS CLEAR FROM THE CONTEXT OF THE BOARD'S DISCUSSION THAT THE
LATTER CITATION WAS THE ONE INTENDED. 

/10/  SECTION 302(C)(5) PROVIDES AN EXEMPTION: 

"WITH RESPECT TO MONEY OR OTHER THING OF VALUE PAID TO A TRUST FUND
ESTABLISHED BY SUCH (EMPLOYEE) REPRESENTATIVE, FOR THE SOLE AND
EXCLUSIVE BENEFIT OF THE EMPLOYEES OF SUCH EMPLOYER, AND THEIR FAMILIES
AND DEPENDENTS . . .:  PROVIDED, THAT (A) SUCH PAYMENTS ARE HELD IN
TRUST FOR THE PURPOSE OF PAYING . . . FOR THE BENEFIT OF EMPLOYEES,
THEIR FAMILIES AND DEPENDENTS, FOR MEDICAL OR HOSPITAL CARE, PENSIONS
ON RETIREMENT OR DEATH OF EMPLOYEES, COMPENSATION FOR INJURIES OR
ILLNESS RESULTING FROM OCCUPATIONAL ACTIVITY OR INSURANCE TO PROVIDE
ANY OF THE FOREGOING, OR UNEMPLOYMENT BENEFITS OR LIFE INSURANCE,
DISABILITY AND SICKNESS INSURANCE, OR ACCIDENT INSURANCE; . . . AND
(CSUCH PAYMENTS AS ARE INTENDED TO BE USED FOR THE PURPOSE OF PROVIDING
PENSIONS OR ANNUITIES FOR EMPLOYEES ARE MADE TO A SEPARATE TRUST WHICH
PROVIDES THAT THE FUNDS HELD THEREIN CANNOT BE USED FOR ANY PURPOSE
OTHER THAN PAYING SUCH PENSIONS OR ANNUITIES . . . . " 

THE EXPRESS REFERENCE TO PENSIONS IN SUBSECTIONS (A) AND (C)
REQUIRES THAT THE PHRASE "FOR THE SOLE AND EXCLUSIVE BENEFIT OF THE
EMPLOYEES OF SUCH EMPLOYER" IN THE INTRODUCTORY CLAUSE TO SEC.
302(C)(5) BE READ TO INCLUDE RETIREES. 

/11/  THE BOARD ADDS AN ARGUMENT IN ITS BRIEF FOR CONSTRUING
"EMPLOYEE" IN SECS. 302(C)(5) AND 8(A)(5) IN PARI MATERIA.  NOT TO READ
THE TERM THAT WAY, THE BOARD CONTENDS, "WOULD FREQUENTLY INTERJECT INTO
WELFARE PLAN NEGOTIATIONS THE TROUBLESOME THRESHOLD QUESTION WHETHER
PARTICULAR PROPOSALS INVOLVED THE ADMINISTRATION OF THE WRITTEN
AGREEMENT, IN WHICH CASE THE UNION WOULD BE ENTITLED TO REPRESENT
RETIRED EMPLOYEES, OR ITS RENEGOTIATION, IN WHICH CASE . . . IT WOULD
NOT."  HOWEVER, NOTHING WE HOLD TODAY PRECLUDES PERMISSIVE BARGAINING
OVER THE BENEFITS OF ALREADY RETIRED EMPLOYEES.  MOREOVER, TO THE
EXTENT THAT "THE TROUBLESOME THRESHOLD QUESTION" POSITED BY THE BOARD
MAY ARISE, IT IS NO DIFFERENT FROM THE TASK OF DISTINGUISHING THE
DISTINCT FUNCTIONS OF CONTRACT APPLICATION AND CONTRACT NEGOTIATION
WHICH EMPLOYERS AND LABOR ORGANIZATIONS ARE ALREADY ACCUSTOMED TO
ADDRESSING. 

/12/  THE BOARD ARGUES IN ITS BRIEF THAT RETIREES WILL BE AT A
GREATER DISADVANTAGE IF THEY ARE REQUIRED TO BARGAIN INDIVIDUALLY WITH
THE EMPLOYER THAN IF THEY ARE REPRESENTED BY THE UNION.  THE ARGUMENT
ASSUMES THAT COLLECTIVE BARGAINING OVER THE BENEFITS OF ALREADY RETIRED
EMPLOYEES WOULD BE A ONE-WAY STREET IN THEIR FAVOR.  THE ASSUMPTION,
HOWEVER, IS NOT FREE FROM DOUBT, AS THE BOARD ITSELF RECOGNIZED IN ITS
OPINION, SEE 177 N.L.R.B.,AT 917, IN DECLINING TO TAKE A POSITION ON
THE QUESTION.  COMPARE ELGIN, J. & E. R. CO. V. BURLEY, 325 U.S. 711
(1945), ADHERED TO ON REHEARING, 327 U.S. 661 (1946), WITH SEC. 9(A) OF
THE NATIONAL LABOR RELATIONS ACT.  IN ANY EVENT, IN REPRESENTING
RETIREES IN THE NEGOTIATION OF RETIREMENT BENEFITS, THE UNION WOULD BE
BOUND TO BALANCE THE INTERESTS OF ALL ITS CONSTITUENTS, WITH THE RESULT
THAT THE INTERESTS OF ACTIVE EMPLOYEES MIGHT AT TIMES BE PREFERRED TO
THOSE OF RETIREES.  SEE RECENT DEVELOPMENTS, 68 MICH.L.REV.  757, 766
767, 772-773 (1970). 

/13/  SEE ALSO J. S. YOUNG CO., 55 N.L.R.B. 1174 (1944).  THE BOARD
INDICATES IN ITS BRIEF THAT IT ADHERES TO THESE DECISIONS.  INDEED, WE
ARE INFORMED BY THE COMPANY THAT THE BOARD EXCLUDED RETIREES FROM THE
REPRESENTATION ELECTION THAT IT CONDUCTED FOLLOWING ITS DECISION IN
THIS CASE.  SEE N. 4, SUPRA. 

/14/  THE BOARD ON THAT THEORY AT ONE TIME WITHHELD THE RIGHT TO
VOTE FROM CERTAIN EMPLOYEES WHO WERE, NONETHELESS, ACKNOWLEDGED UNIT
MEMBERS.  SEE, E.G., H. P. WASSON & CO., 105 N.L.R.B. 373 (1953). 
HOWEVER, THAT POLICY WAS SUBSEQUENTLY ABANDONED.  SEE POST HOUSES,
INC., 161 N.L.R.B. 1159, 1160 N. 1, 1172 (1966. 

/15/  SECTION 7 OF THE ACT DECLARES THAT "(EMPLOYEES SHALL HAVE THE
RIGHT . . . TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR
OWN CHOOSING . . . . " SECTION 9(A), IN TURN, PROVIDES THAT
"(REPRESENTATIVES DESIGNATED OR SELECTED . . . BY THE MAJORITY OF THE
EMPLOYEES IN A UNIT . . . SHALL BE THE EXCLUSIVE REPRESENTATIVES OF ALL
THE EMPLOYEES IN SUCH UNIT . . . ."  THE MAJORITY RULE PRINCIPLE THAT
THE ACT THUS ESTABLISHES WAS ADOPTED AFTER CONSIDERABLE PUBLIC
CONTROVERSY.  BOTH THE HOUSE AND THE SENATE COMMITTEES THAT REPORTED
OUT THE WAGNER BILL WERE AT PAINS TO EXPLAIN THAT THE PRINCIPLE NOT
ONLY WAS NECESSARY FOR THE EFFECTIVE FUNCTIONING OF COLLECTIVE
BARGAINING BUT WAS SANCTIONED BY THE PHILOSOPHY OF DEMOCRATIC
INSTITUTIONS.  MOREOVER, THEY CAREFULLY REVIEWED THE PROVISIONS THAT
THE ACT ESTABLISHES TO PROTECT MINORITY GROUPS WITHIN THE BARGAINING
UNIT, SUCH AS THE PROHIBITION ON DISCRIMINATION IN FAVOR OF UNION
MEMBERS.  SEE H.R. REP. NO. 972, 74TH CONG., 1ST SESS., 18-20 (1935);
S. REP. NO. 573, 74TH CONG., 1ST SESS., 13-14 (1935).  THE LANGUAGE OF
SECS. 7 AND 9(A), COUPLED WITH THIS LEGISLATIVE HISTORY, MAKES PLAIN
THAT ALL UNIT MEMBERS ARE ENFRANCHISED. 

THIS IS NOT TO SAY THAT THE BOARD IS WITHOUT POWER TO DEVELOP
REASONABLE REGULATIONS GOVERNING WHO MAY VOTE IN BOARD-CONDUCTED
ELECTIONS.  THE HOUSE COMMITTEE EXPRESSLY INDICATED THAT THE BOARD MAY
"MAKE AND PUBLISH APPROPRIATE RULES GOVERNING THE CONDUCT OF ELECTIONS
AND DETERMINING WHO MAY PARTICIPATE THEREIN."  H.R. REP. NO. 972,
SUPRA, AT 20.  THUS, THE BOARD MAY, FOR EXAMPLE, WITHHOLD THE BALLOT
FROM EMPLOYEES HIRED AFTER THE ELECTION ELIGIBILITY DATE.  AS MEMBER
ZAGORIA EXPLAINED IN HIS DISSENT FROM THE BOARD'S DECISION BELOW, THAT
RULE "PROVIDES AN ADMINISTRATIVE CUTOFF DATE FOR CONVENIENCE IN
CONDUCTING ELECTIONS, AND TO PREVENT PAYROLL PADDING AND OTHER POSSIBLE
ABUSES."  177 N.L.R.B.,AT 919. 

/16/  THE COMPANY ALSO CONTENDS THAT THE RECORD IS BARREN OF ANY
EVIDENCE TO SUPPORT THE BOARD'S FINDINGS ON INDUSTRY EXPERIENCE.  EVEN
IF THAT IS THE CASE, THE EVIDENCE CITED BY THE BOARD MAY HAVE PROPERLY
BEEN OFFICIALLY NOTICED.  BUT WE NEED NOT DECIDE THAT QUESTION IN VIEW
OF OUR CONCLUSION THAT THE INDUSTRIAL PRACTICE THAT THE BOARD FOUND TO
EXIST DOES NOT VALIDATE ITS HOLDINGS. 

/17/  THE ADDITIONAL INTERESTS THAT THE BOARD FOUND ACTIVE EMPLOYEES
HAVE IN PENSIONERS' BENEFITS WERE PROPERLY DEALT WITH BY THE COURT OF
APPEALS BELOW AND DO NOT NEED EXTENDED CONSIDERATION HERE.  THE BOARD
STATED THAT "THE UNION AND CURRENT EMPLOYEES HAVE A LEGITIMATE INTEREST
IN ASSURING THAT NEGOTIATED RETIREMENT BENEFITS ARE IN FACT PAID AND
ADMINISTERED IN ACCORDANCE WITH THE TERMS AND INTENT OF THEIR CONTRACTS
. . . ."  177 N.L.R.B.,AT 915.  THAT INTEREST IS UNDENIABLE.  BUT
CONGRESS HAS SPECIFICALLY ESTABLISHED A REMEDY FOR BREACHES OF
COLLECTIVE-BARGAINING AGREEMENTS IN SEC. 301 OF THE LABOR MANAGEMENT
RELATIONS ACT.  61 STAT. 156, 29 U.S.C. 185.  SEE, E.G., UPHOLSTERERS'
INT'L UNION V. AMERICAN PAD & TEXTILE CO., 372 F.2D 427 (CA6 1967). 
SIMILARLY, CONGRESS HAS EXPRESSLY PROVIDED FOR EMPLOYEE REPRESENTATION
IN THE ADMINISTRATION OF TRUST FUNDS UNDER SEC. 302(C)(5) OF THAT ACT. 
IN ANY EVENT, THE QUESTION PRESENTED IS NOT WHETHER RETIREMENT RIGHTS
ARE ENFORCEABLE, BUT WHETHER THEY ARE SUBJECT TO COMPULSORY
BARGAINING. 

THE BOARD ALSO NOTED "THAT CHANGES IN RETIREMENT BENEFITS FOR
RETIRED EMPLOYEES AFFECT THE AVAILABILITY OF EMPLOYER FUNDS FOR ACTIVE
EMPLOYEES."  177 N.L.R.B.,AT 915.  THAT, AGAIN, IS QUITE TRUE.  BUT
COUNTLESS OTHER EMPLOYER EXPENDITURES THAT CONCEDEDLY ARE NOT SUBJECTS
OF MANDATORY BARGAINING, SUCH AS SUPERVISORS' SALARIES AND DIVIDENDS,
HAVE A SIMILAR IMPACT.  THE PRINCIPLE THAT UNDER LIES THE BOARD'S
ARGUMENT SWEEPS WITH FAR TOO BROAD A BRUSH.  THE BOARD DOES SUGGEST IN
ITS BRIEF THAT PENSIONERS' BENEFITS ARE DIFFERENT FROM OTHER EMPLOYER
EXPENSES BECAUSE THEY ARE NORMALLY REGARDED AS PART OF LABOR COSTS. 
THE EMPLOYER'S METHOD OF ACCOUNTING, HOWEVER, HARDLY PROVIDES A
SUITABLE BASIS FOR DISTINCTION.  IN ANY CASE, THE IMPACT ON ACTIVE
EMPLOYEES' COMPENSATION FROM CHANGES IN PENSIONERS' BENEFITS IS, LIKE
THE EFFECT DISCUSSED IN THE TEXT OF INCLUDING RETIREES UNDER THE SAME
HEALTH INSURANCE PLAN AS ACTIVE EMPLOYEES, TOO INSUBSTANTIAL TO BRING
THOSE CHANGES WITHIN THE COLLECTIVE-BARGAINING OBLIGATION. 

/18/  SPECIFICALLY WE NOTED IN OLIVER, 358 U.S., AT 294: 

"(THE COLLECTIVE-BARGAINING AGREEMENT CONSTITUTES) . . . A DIRECT
FRONTAL ATTACK UPON A PROBLEM THOUGHT TO THREATEN THE MAINTENANCE OF
THE BASIC WAGE STRUCTURE ESTABLISHED BY THE . . . CONTRACT.  THE
INADEQUACY OF A RENTAL WHICH MEANS THAT THE OWNER MAKES UP HIS EXCESS
COSTS FROM HIS DRIVER'S WAGES NOT ONLY CLEARLY BEARS A CLOSE RELATION
TO LABOR'S EFFORTS TO IMPROVE WORKING CONDITIONS BUT IS IN FACT OF
VITAL CONCERN TO THE CARRIER'S EMPLOYED DRIVERS; AN INADEQUATE RENTAL
MIGHT MEAN THE PROGRESSIVE CURTAILMENT OF JOBS THROUGH WITHDRAWAL OF
MORE AND MORE CARRIER-OWNED VEHICLES FROM SERVICE." 

/19/  THIS IS NOT TO SAY THAT APPLICATION OF OLIVER AND FIBREBOARD
TURNS ONLY ON THE IMPACT OF THE THIRD-PARTY MATTER ON EMPLOYEE
INTERESTS.  OTHER CONSIDERATIONS, SUCH AS THE EFFECT ON THE EMPLOYER'S
FREEDOM TO CONDUCT HIS BUSINESS, MAY BE EQUALLY IMPORTANT.  SEE
FIBREBOARD CORP. V. NLRB, SUPRA, AT 217 (STEWART J., CONCURRING).  BUT
WE HAVE NO OCCASION IN THIS CASE TO CONSIDER WHAT, IF ANY, THOSE
CONSIDERATIONS MAY BE. 

/20/  SINCE RETIREES ARE NOT MEMBERS OF THE BARGAINING UNIT, THE
BARGAINING AGENT IS UNDER NO STATUTORY DUTY TO REPRESENT THEM IN
NEGOTIATIONS WITH THE EMPLOYER.  NOTHING IN RAILROAD TRAINMEN V.
HOWARD, 343 U.S. 768 (1952), IS TO THE CONTRARY.  IN HOWARD WE HELD
THAT A UNION MAY NOT USE THE POWERS ACCORDED IT UNDER LAW FOR THE
PURPOSES OF RACIAL DISCRIMINATION EVEN AGAINST WORKERS WHO ARE NOT
MEMBERS OF THE BARGAINING UNIT REPRESENTED BY THE UNION.  THE REACH AND
RATIONALE OF HOWARD ARE A MATTER OF SOME CONJECTURE.  SEE COX, THE DUTY
OF FAIR REPRESENTATION, 2 VILL.L.REV.  151, 157-159 (1957).  BUT
WHATEVER ITS THEORY, THE CASE OBVIOUSLY DOES NOT REQUIRE A UNION
AFFIRMATIVELY TO REPRESENT NONBARGAINING UNIT MEMBERS OR TO TAKE INTO
ACCOUNT THEIR INTERESTS IN MAKING BONA FIDE ECONOMIC DECISIONS IN
BEHALF OF THOSE WHOM IT DOES REPRESENT. 

THIS DOES NOT MEAN THAT WHEN A UNION BARGAINS FOR RETIREES-- WHICH
NOTHING IN THIS OPINION PRECLUDES IF THE EMPLOYER AGREES-- THE RETIREES
ARE WITHOUT PROTECTION.  UNDER ESTABLISHED CONTRACT PRINCIPLES, VESTED
RETIREMENT RIGHTS MAY NOT BE ALTERED WITHOUT THE PENSIONER'S CONSENT. 
SEE GENERALLY NOTE, 70 COL.L.REV.  909, 916-920 (1970).  THE RETIREE,
MOREOVER, WOULD HAVE A FEDERAL REMEDY UNDER SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT FOR BREACH OF CONTRACT IF HIS BENEFITS WERE
UNILATERALLY CHANGED.  SEE SMITH V. EVENING NEWS ASSN., 371 U.S. 195,
200-201 (1962); LEWIS V. BENEDICT COAL CORP., 361 U.S. 459, 470
(1960).     /21/  SECTION 8(D) READS IN FULL: 

"FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS THE
PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT, OR ANY
QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN CONTRACT
INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY EITHER PARTY, BUT
SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR
REQUIRE THE MAKING OF A CONCESSION:  PROVIDED, THAT WHERE THERE IS IN
EFFECT A COLLECTIVE-BARGAINING CONTRACT COVERING EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE, THE DUTY TO BARGAIN COLLECTIVELY SHALL
ALSO MEAN THAT NO PARTY TO SUCH CONTRACT SHALL TERMINATE OR MODIFY SUCH
CONTRACT, UNLESS THE PARTY DESIRING SUCH TERMINATION OR MODIFICATION-- 

"(1) SERVES A WRITTEN NOTICE UPON THE OTHER PARTY TO THE CONTRACT OF
THE PROPOSED TERMINATION OR MODIFICATION SIXTY DAYS PRIOR TO THE
EXPIRATION DATE THEREOF, OR IN THE EVENT SUCH CONTRACT CONTAINS NO
EXPIRATION DATE, SIXTY DAYS PRIOR TO THE TIME IT IS PROPOSED TO MAKE
SUCH TERMINATION OR MODIFICATION; 

"(2) OFFERS TO MEET AND CONFER WITH THE OTHER PARTY FOR THE PURPOSE
OF NEGOTIATING A NEW CONTRACT OR A CONTRACT CONTAINING THE PROPOSED
MODIFICATIONS; 

"(3) NOTIFIES THE FEDERAL MEDIATION AND CONCILIATION SERVICE WITHIN
THIRTY DAYS AFTER SUCH NOTICE OF THE EXISTENCE OF A DISPUTE, AND
SIMULTANEOUSLY THEREWITH NOTIFIES ANY STATE OR TERRITORIAL AGENCY
ESTABLISHED TO MEDIATE AND CONCILIATE DISPUTES WITHIN THE STATE OR
TERRITORY WHERE THE DISPUTE OCCURRED, PROVIDED NO AGREEMENT HAS BEEN
REACHED BY THAT TIME; AND 

"(4) CONTINUES IN FULL FORCE AND EFFECT, WITHOUT RESORTING TO STRIKE
OR LOCK-OUT, ALL THE TERMS AND CONDITIONS OF THE EXISTING CONTRACT FOR
A PERIOD OF SIXTY DAYS AFTER SUCH NOTICE IS GIVEN OR UNTIL THE
EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS LATER: 

"THE DUTIES IMPOSED UPON EMPLOYERS, EMPLOYEES, AND LABOR
ORGANIZATIONS BY PARAGRAPHS (2)-(4) OF THIS SUBSECTION SHALL BECOME
INAPPLICABLE UPON AN INTERVENING CERTIFICATION OF THE BOARD, UNDER
WHICH THE LABOR ORGANIZATION OR INDIVIDUAL, WHICH IS A PARTY TO THE
CONTRACT, HAS BEEN SUPERSEDED AS OR CEASED TO BE THE REPRESENTATIVE OF
THE EMPLOYEES SUBJECT TO THE PROVISIONS OF SECTION 159(A) OF THIS
TITLE, AND THE DUTIES SO IMPOSED SHALL NOT BE CONSTRUED AS REQUIRING
EITHER PARTY TO DISCUSS OR AGREE TO ANY MODIFICATION OF THE TERMS AND
CONDITIONS CONTAINED IN A CONTRACT FOR A FIXED PERIOD, IF SUCH
MODIFICATION IS TO BECOME EFFECTIVE BEFORE SUCH TERMS AND CONDITIONS
CAN BE REOPENED UNDER THE PROVISIONS OF THE CONTRACT.  ANY EMPLOYEE WHO
ENGAGES IN A STRIKE WITHIN THE SIXTY-DAY PERIOD SPECIFIED IN THIS
SUBSECTION SHALL LOSE HIS STATUS AS AN EMPLOYEE OF THE EMPLOYER ENGAGED
IN THE PARTICULAR LABOR DISPUTE, FOR THE PURPOSES OF SECTIONS 158 TO
160 OF THIS TITLE, BUT SUCH LOSS OF STATUS FOR SUCH EMPLOYEE SHALL
TERMINATE IF AND WHEN HE IS REEMPLOYED BY SUCH EMPLOYER."  29 U.S.C.
158(D). 

/22/  IN COMING TO A CONTRARY CONCLUSION, THE TRIAL EXAMINER
MISTAKENLY RELIED ON BROTHERHOOD OF PAINTERS, LOCAL UNION NO. 1385, 143
N.L.R.B. 678 (1963), WHERE THE BOARD HELD THAT A UNION VIOLATED SEC.
8(D) BY REFUSING TO EXECUTE A WRITTEN CONTRACT CONTAINING A PERMISSIVE
TERM TO WHICH IT HAD PREVIOUSLY AGREED.  "THE PARTIES DID DISCUSS THE
PROVISION," THE BOARD REASONED, "AND FOR US TO HOLD THAT THE EMPLOYERS
IN THIS CASE MAY NOT INSIST ON THE INCLUSION OF THIS PROVISION IN THEIR
CONTRACT WOULD UPSET, IF NOT UNDO, THE STABILIZING EFFECTS OF THE
AGREEMENT WHICH WAS REACHED AFTER SEVERAL NEGOTIATION MEETINGS."  ID.,
AT 680.  THE UNION WAS REQUIRED TO SIGN THE CONTRACT AT THE EMPLOYERS'
REQUEST, NOT BECAUSE SEC. 8(D) REACHES PERMISSIVE TERMS, BUT BECAUSE
THE UNION'S REFUSAL OBSTRUCTED EXECUTION OF AN AGREEMENT ON MANDATORY
TERMS.  CF. NLRB V. KATZ, SUPRA, N. 2. 

/23/  THE NOTIFICATION REQUIRED BY PARAGRAPH (3) IS "OF THE
EXISTENCE OF A DISPUTE."  SECTION 2(9) OF THE ACT DEFINES "LABOR
DISPUTE" TO INCLUDE "ANY CONTROVERSY CONCERNING TERMS, TENURE OR
CONDITIONS OF EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR
REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING, MAINTAINING,
CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF EMPLOYMENT . . .
."  49 STAT. 450, AS AMENDED, 29 U.S.C. 152(9).  SINCE CONTROVERSIES
OVER PERMISSIVE TERMS ARE EXCLUDED FROM THE DEFINITION, A PARAGRAPH (3)
NOTICE MIGHT NOT BE REQUIRED IN THE CASE OF A PROPOSED MODIFICATION TO
SUCH A TERM EVEN IF SEC. 8(D) APPLIED. 

/24/  IT DOES NOT APPEAR WHETHER THE COLLECTIVE-BARGAINING AGREEMENT
INVOLVED IN THIS CAUSE PROVIDED FOR ARBITRATION THAT WOULD HAVE BEEN
APPLICABLE TO THIS DISPUTE.  WE EXPRESS NO OPINION, THEREFORE, ON THE
RELEVANCE OF SUCH A PROVISION TO THE QUESTION BEFORE US. 

MR. JUSTICE DOUGLAS DISSENTS. 

MORTIMER RIEMER ARGUED THE CAUSE FOR PETITIONER IN NO. 70-32.  WITH
HIM ON THE BRIEF WAS LAWRENCE M. OBERDANK.  NORTON J. COME ARGUED THE
CAUSE FOR PETITIONER IN NO. 70-39.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD, RICHARD B. STONE, ARNOLD ORDMAN, DOMINICK
L. MANOLI, AND NANCY M. SHERMAN. 

GUY FARMER ARGUED THE CAUSE FOR RESPONDENTS IN BOTH CASES.  WITH HIM
ON THE BRIEF WAS NICHOLAS R. CRISS, JR. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY J. ALBERT WOLL,
LAURENCE GOLD, THOMAS E. HARRIS, AND STEPHEN I. SCHLOSSBERG FOR THE
AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS
ET AL., AND BY HAROLD EDGAR, DAVID H. MARLIN, AND ROBERT J. MOZER FOR
THE NATIONAL COUNCIL OF SENIOR CITIZENS. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY MILTON A.
SMITH, LAWRENCE M. COHEN, AND GERARD C. SMETANA FOR THE CHAMBER OF
COMMERCE OF THE UNITED STATES; BY LAMBERT H. MILLER AND RICHARD D.
GODOWN FOR THE NATIONAL ASSOCIATION OF MANUFACTURERS OF THE UNITED
STATES; AND BY WILLIAM C. TREANOR AND JOHN W. WHITTLESEY FOR UNION
CARBIDE CORP.
..END :
















CHEVRON OIL CO. V. HUSON, 404 U.S. 97 


       CHEVRON OIL CO. V. HUSON

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 70-11.  ARGUED OCTOBER 20, 1971-- DECIDED DECEMBER 6,

           1971 


RESPONDENT WAS INJURED IN DECEMBER 1965 WHILE WORKING ON PETITIONER'S
ARTIFICIAL ISLAND DRILLING RIG, LOCATED ON THE OUTER CONTINENTAL SHELF
OFF THE LOUISIANA COAST.  ALLEGEDLY, NOT UNTIL MANY MONTHS LATER WERE
THE INJURIES DISCOVERED TO BE SERIOUS.  IN JANUARY 1968 RESPONDENT
BROUGHT SUIT FOR DAMAGES AGAINST PETITIONER IN FEDERAL DISTRICT COURT. 
THE DISTRICT COURT, RELYING ON RODRIGUE V. AETNA CASUALTY & SURETY CO.,
395 U.S. 352 (1969), HELD THAT LOUISIANA'S ONE-YEAR LIMITATION ON
PERSONAL INJURY ACTIONS APPLIED RATHER THAN THE ADMIRALTY LACHES
DOCTRINE, AND GRANTED PETITIONER'S MOTION FOR SUMMARY JUDGMENT. 
RODRIGUE HAD HELD THAT STATE LAW AND NOT ADMIRALTY LAW APPLIED TO FIXED
STRUCTURES ON THE OUTER CONTINENTAL SHELF UNDER THE OUTER CONTINENTAL
SHELF LANDS ACT (HEREINAFTER LANDS ACT), AND EXTENDED TO THAT AREA AS
FEDERAL LAWS THE LAWS OF THE ADJACENT STATE "TO THE EXTENT THAT THEY
ARE APPLICABLE AND NOT INCONSISTENT" WITH FEDERAL LAWS.  RESPONDENT
ARGUED ON APPEAL THAT IN VIEW OF PRE-RODRIGUE JURISPRUDENCE MAKING
ADMIRALTY LAW (INCLUDING THE LACHES DOCTRINE) APPLICABLE, IT WOULD BE
UNFAIR TO GIVE THAT DECISION RETROSPECTIVE EFFECT.  THE COURT OF
APPEALS, NOT REACHING THAT ARGUMENT, REVERSED, HOLDING THAT LOUISIANA'S
"PRESCRIPTIVE" TIME LIMITATION, WHICH BARRED THE REMEDY BUT DID NOT
EXTINGUISH THE RIGHT TO RECOVERY, WAS NOT BINDING OUTSIDE A LOUISIANA
FORUM.  CONSEQUENTLY, THE COURT CONCLUDED THAT THE TIME LIMITATION WAS
NOT "APPLICABLE" OF ITS OWN FORCE AND WAS "INCONSISTENT" WITH THE
ADMIRALTY LACHES DOCTRINE, WHICH THOUGH NOT DIRECTLY APPLICABLE BY
VIRTUE OF RODRIGUE WAS APPLICABLE AS A MATTER OF FEDERAL COMMON LAW. 
HELD: 

1.  THE LANDS ACT, AS INTERPRETED IN RODRIGUE, REQUIRES THAT A
STATE'S STATUTE OF LIMITATIONS BE APPLIED TO ACTIONS FOR PERSONAL
INJURIES OCCURRING ON FIXED STRUCTURES ON THE OUTER CONTINENTAL SHELF. 
THE FACT THAT THE LOUISIANA LAW IS "PRESCRIPTIVE" DOES NOT MAKE IT
INAPPLICABLE AS FEDERAL LAW UNDER THE LANDS ACT, AND A FEDERAL COURT
MAY NOT APPLY A LACHES TEST TO PRECLUDE APPLICATION OF THE STATE TIME
LIMITATION.  PP. 100-105. 

2.  THE LOUISIANA ONE-YEAR STATUTE OF LIMITATIONS SHOULD NOT,
HOWEVER, BAR RESPONDENT'S ACTION HERE SINCE RETROACTIVE APPLICATION OF
THAT STATUTE UNDER RODRIGUE WOULD DEPRIVE RESPONDENT OF ANY REMEDY AT
ALL ON THE BASIS OF THE UNFORESEEABLE SUPERSEDING LEGAL DOCTRINE OF
THAT DECISION.  PP. 105-109. 

430 F.2D 27, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS,
J., FILED A SEPARATE OPINION, POST, P. 109. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, GAINES TED HUSON, SUFFERED A BACK INJURY WHILE
WORKING ON AN ARTIFICIAL ISLAND DRILLING RIG OWNED AND OPERATED BY THE
PETITIONER, CHEVRON OIL CO., AND LOCATED ON THE OUTER CONTINENTAL SHELF
OFF THE GULF COAST OF LOUISIANA.  THE INJURY OCCURRED IN DECEMBER
1965.  ALLEGEDLY, IT WAS NOT UNTIL MANY MONTHS LATER THAT THE INJURY
WAS DISCOVERED TO BE A SERIOUS ONE.  IN JANUARY 1968 THE RESPONDENT
BROUGHT SUIT FOR DAMAGES AGAINST THE PETITIONER IN FEDERAL DISTRICT
COURT.  THE RESPONDENT'S DELAY IN SUING THE PETITIONER ULTIMATELY
BROUGHT HIS CASE TO THIS COURT. 

THE ISSUE PRESENTED IS WHETHER THE RESPONDENT'S ACTION IS TIME
BARRED AND, MORE PARTICULARLY, WHETHER STATE OR FEDERAL LAW DETERMINES
THE TIMELINESS OF THE ACTION.  THAT ISSUE MUST BE RESOLVED UNDER THE
OUTER CONTINENTAL SHELF LANDS ACT, 67 STAT. 462, 43 U.S.C. 1331 ET SEQ.
(HEREINAFTER "LANDS ACT"), WHICH GOVERNS INJURIES OCCURRING ON FIXED
STRUCTURES ON THE OUTER CONTINENTAL SHELF.  WHEN THIS LAWSUIT WAS
INITIATED, THERE WAS A LINE OF FEDERAL COURT DECISIONS INTERPRETING THE
LANDS ACT TO MAKE GENERAL ADMIRALTY LAW, INCLUDING THE EQUITABLE
DOCTRINE OF LACHES, APPLICABLE TO PERSONAL INJURY SUITS SUCH AS THE
RESPONDENT'S.  /1/  THE PETITIONER DID NOT QUESTION THE TIMELINESS OF
THE ACTION AS A MATTER OF LACHES.  WHILE PRETRIAL DISCOVERY PROCEEDINGS
WERE STILL UNDER WAY, HOWEVER, THIS COURT ANNOUNCED ITS DECISION IN
RODRIGUE V. AETNA CASUALTY & SURETY CO., 395 U.S. 352.  THAT DECISION
ENTIRELY CHANGED THE COMPLEXION OF THIS CASE.  FOR IT ESTABLISHED THAT
THE LANDS ACT DOES NOT MAKE ADMIRALTY LAW APPLICABLE TO ACTIONS SUCH AS
THIS ONE.  RELYING ON RODRIGUE, THE DISTRICT COURT HELD THAT
LOUISIANA'S ONE-YEAR LIMITATION ON PERSONAL INJURY ACTIONS, RATHER THAN
THE ADMIRALTY DOCTRINE OF LACHES, MUST GOVERN THIS CASE.  IT CONCLUDED,
THEREFORE, THAT THE RESPONDENT'S ACTION WAS TIME BARRED AND GRANTED
SUMMARY JUDGMENT FOR THE PETITIONER.  /2/ 

ON APPEAL, THE RESPONDENT ARGUED THAT RODRIGUE SHOULD NOT BE APPLIED
RETROACTIVELY TO BAR ACTIONS FILED BEFORE THE DATE OF ITS
ANNOUNCEMENT.  /3/  BUT THE COURT OF APPEALS DECLINED TO REACH THAT
QUESTION.  INSTEAD IT HELD THAT THE INTERPRETATION OF THE LANDS ACT IN
RODRIGUE DOES NOT COMPEL APPLICATION OF THE STATE STATUTE OF
LIMITATIONS OR PREVENT APPLICATION OF THE ADMIRALTY DOCTRINE OF
LACHES.  IT CONCLUDED THAT THE DOCTRINE OF LACHES SHOULD HAVE BEEN
APPLIED BY THE DISTRICT COURT AND, THEREFORE, REVERSED THAT COURT'S
JUDGMENT AND REMANDED THE CASE FOR TRIAL.  430 F.2D 27.  WE GRANTED
CERTIORARI TO CONSIDER THE COURT OF APPEALS' CONSTRUCTION OF THE LANDS
ACT AND OF RODRIGUE.  402 U.S. 942.  WE HOLD THAT THE LANDS ACT, AS
INTERPRETED IN RODRIGUE, REQUIRES THAT THE STATE STATUTE OF LIMITATIONS
BE APPLIED TO PERSONAL INJURY ACTIONS.  WE AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS, HOWEVER, ON THE GROUND THAT RODRIGUE SHOULD NOT BE
INVOKED TO REQUIRE APPLICATION OF THE LOUISIANA TIME LIMITATION
RETROACTIVELY TO THIS CASE. 

        I 

THE LANDS ACT MAKES THE OUTER CONTINENTAL SHELF, INCLUDING FIXED
STRUCTURES THEREON, AN AREA OF EXCLUSIVE FEDERAL JURISDICTION, 43
U.S.C. 1333(A)(1).  THE ACT EXTENDS THE LAWS OF THE UNITED STATES TO
THIS AREA, 43 U.S.C. 1333(A)(1), AND PROVIDES THAT THE LAWS OF THE
ADJACENT STATE SHALL ALSO APPLY "(TO THE EXTENT THAT THEY ARE
APPLICABLE AND NOT INCONSISTENT" WITH APPLICABLE FEDERAL LAWS, 43
U.S.C. 1333(A)(2).  /4/  TO THE EXTENT THAT A COMPREHENSIVE BODY OF
FEDERAL LAW IS APPLICABLE UNDER SEC. 1333(A)(1), STATE LAW
"INCONSISTENT" WITH THAT LAW WOULD BE INAPPLICABLE UNDER SEC.
1333(A)(2). 

IN RODRIGUE, WE CLARIFIED THE SCOPE OF APPLICATION OF FEDERAL LAW
AND STATE LAW UNDER SEC. 1333(A)(1) AND SEC. 1333(A)(2).  BY REJECTING
THE VIEW THAT COMPREHENSIVE ADMIRALTY LAW REMEDIES APPLY UNDER SEC.
1333(A)(1), WE RECOGNIZED THAT THERE EXISTS A SUBSTANTIAL "GAP" IN
FEDERAL LAW.  THUS, STATE LAW REMEDIES ARE NOT "INCONSISTENT" WITH
APPLICABLE FEDERAL LAW.  ACCORDINGLY, WE HELD THAT, IN ORDER TO PROVIDE
A REMEDY FOR WRONGFUL DEATH, THE "GAP" MUST BE FILLED WITH THE
APPLICABLE BODY OF STATE LAW UNDER SEC. 1333(A)(2). 

THE COURT OF APPEALS ACKNOWLEDGED THAT RODRIGUE CLEARLY ESTABLISHES
THAT THE REMEDY FOR PERSONAL INJURY, AS FOR WRONGFUL DEATH, CANNOT BE
DERIVED FROM ADMIRALTY LAW BUT MUST BE GOVERNED BY THE LAW OF THE
ADJACENT STATE, LOUISIANA.  BUT THE COURT HELD THAT LOUISIANA'S TIME
LIMITATION ON PERSONAL INJURY ACTIONS NEED NOT BE APPLIED WITH THE
SUBSTANTIVE REMEDY.  IT SUPPORTED THIS HOLDING BY REFERENCE TO THE
TERMS OF SEC. 1333(A)(2) THAT LIMIT THE APPLICATION OF STATE LAW UNDER
THE LANDS ACT.  THE LOUISIANA TIME LIMITATION, THE COURT OF APPEALS
REASONED, IS NOT "APPLICABLE" OF ITS OWN FORCE AND IS "INCONSISTENT"
WITH THE ADMIRALTY DOCTRINE OF LACHES.  THE COURT HELD THAT, DESPITE
THE HOLDING IN RODRIGUE, THE LACHES DOCTRINE IS APPLICABLE AS A MATTER
OF FEDERAL COMMON LAW.  WE MUST DISAGREE. 

THE COURT OF APPEALS DID NOT SUGGEST THAT STATE STATUTES OF
LIMITATIONS ARE PER SE INAPPLICABLE UNDER SEC. 1333(A)(2).  RATHER, IT
FOCUSED ON THE PECULIAR NATURE OF THE LOUISIANA TIME LIMITATION ON
PERSONAL INJURY ACTIONS FOUND IN ART. 3536, LA. CIV. CODE ANN.  ARTICLE
3536 PROVIDES THAT PERSONAL INJURY ACTIONS SHALL BE "PRESCRIBED" BY ONE
YEAR.  THE COURT OF APPEALS ATTACHED MUCH SIGNIFICANCE TO THE FACT THAT
ART. 3536 "PRESCRIBES," RATHER THAN "PEREMPTS," SUCH ACTIONS.  UNDER
LOUISIANA LAW, "PRESCRIPTION," UNLIKE "PEREMPTION," BARS THE REMEDY BUT
DOES NOR FORMALLY EXTINGUISH THE RIGHT TO RECOVERY.  SEE PAGE V.
CAMERON IRON WORKS, 259 F.2D 420, 422-424; ISTRE V. DIAMOND M. DRILLING
CO., 226 SO.2D 779, 794-795 (LA.APP.); SUCCESSION OF PIZZILLO, 223 LA.
328, 335, 65 SO.2D 783, 786.  THIS CHARACTERIZATION HAS IMPORTANCE
UNDER PRINCIPLES OF THE CONFLICT OF LAWS.  IT HAS BEEN HELD, AS A
MATTER OF LOUISIANA CONFLICTS LAW, THAT MERE "PRESCRIPTIVE" TIME
LIMITATIONS ARE NOT BINDING OUTSIDE THEIR OWN FORUM.  SEE FIDELITY &
CASUALTY CO. V. C/B MR. KIM, 345 F.2D 45, 50; KOZAN V. COMSTOCK, 270
F.2D 839, 841; ISTRE V. DIAMOND M. DRILLING CO., SUPRA, AT 795. 
REASONING FROM THIS PRINCIPLE OF CONFLICTS LAW, THE COURT OF APPEALS
CONCLUDED THAT THE "PRESCRIPTIVE" LIMITATION IS NOT "APPLICABLE" IN A
FEDERAL COURT ADJUDICATING A CLAIM UNDER THE LANDS ACT. 

WE HOLD, HOWEVER, THAT THE "PRESCRIPTIVE" NATURE OF ART. 3536 DOES
NOT UNDERCUT ITS APPLICABILITY UNDER THE LANDS ACT.  UNDER SEC.
1333(A)(2) OF THE ACT, "(STATE LAW BECOMES) FEDERAL LAW FEDERALLY
ENFORCED."  RODRIGUE V. AETNA CASUALTY & SURETY CO., SUPRA, AT 365.  IT
WAS THE INTENT OF CONGRESS, EXPRESSED IN THE SENATE COMMITTEE REPORT,
IN THE CONFERENCE REPORT, AND ON THE FLOOR OF THE SENATE, THAT STATE
LAWS BE "ADOPTED" OR ENACTED" AS FEDERAL LAW.  SEE ID., AT 357-358. 
THUS A FEDERAL COURT APPLYING LOUISIANA LAW UNDER SEC. 1333(A)(2) OF
THE LANDS ACT IS APPLYING IT AS FEDERAL LAW-- AS THE LAW OF THE FEDERAL
FORUM.  SINCE THE FEDERAL COURT IS NOT, THEN, APPLYING THE LAW OF
ANOTHER FORUM IN THE USUAL SENSE, ORDINARY CONFLICT OF LAWS PRINCIPLES
HAVE NO RELEVANCE.  ARTICLE 3536 IS "APPLICABLE" IN FEDERAL COURT UNDER
THE LANDS ACT JUST AS IT WOULD BE APPLICABLE IN A LOUISIANA COURT. 
/5/ 

THE POLICIES UNDERLYING THE FEDERAL ABSORPTION OF STATE LAW IN THE
LANDS ACT MAKE THIS RESULT PARTICULARLY OBVIOUS.  AS WE POINTED OUT IN
RODRIGUE, CONGRESS RECOGNIZED THAT "'THE FEDERAL CODE WAS NEVER
DESIGNED TO BE A COMPLETE BODY OF LAW IN AND OF ITSELF'" AND THUS THAT
A COMPREHENSIVE BODY OF STATE LAW WAS NEEDED.  ID., AT 358, 361. 
CONGRESS ALSO RECOGNIZED THAT THE "SPECIAL RELATIONSHIP BETWEEN THE MEN
WORKING ON THESE ARTIFICIAL ISLANDS AND THE ADJACENT SHORE TO WHICH
THEY COMMUTE" FAVORED APPLICATION OF STATE LAW WITH WHICH THESE MEN AND
THEIR ATTORNEYS WOULD BE FAMILIAR.  ID., AT 365; SEE ID., AT 363.  IF
CONGRESS' GOAL WAS TO PROVIDE A COMPREHENSIVE AND FAMILIAR BODY OF LAW,
IT WOULD DEFEAT THAT GOAL TO APPLY ONLY CERTAIN ASPECTS OF A STATE
PERSONAL INJURY REMEDY IN FEDERAL COURT.  A STATE TIME LIMITATION UPON
A REMEDY IS COORDINATED WITH THE SUBSTANCE OF THE REMEDY AND IS NO LESS
APPLICABLE UNDER THE LANDS ACT.  /6/ 

THE APPLICATION OF LOUISIANA'S ART. 3536 IS, OF COURSE, SUBJECT TO
THE ABSENCE OF "INCONSISTENT" AND APPLICABLE FEDERAL LAW.  THE COURT OF
APPEALS ACKNOWLEDGED THAT RODRIGUE FORECLOSES DIRECT APPLICABILITY OF
THE "INCONSISTENT" LACHES DOCTRINE THROUGH ADMIRALTY LAW.  BUT, BY
APPLYING LACHES AS A MATTER OF FEDERAL COMMON LAW, IT SOUGHT TO
REINTRODUCE THE DOCTRINE THROUGH A BACK DOOR.  /7/  THIS APPROACH
SUBVERTS THE CONGRESSIONAL INTENT DOCUMENTED IN RODRIGUE, ID., AT 359
366, THAT ADMIRALTY DOCTRINES SHOULD NOT APPLY UNDER THE LANDS ACT. 

MOREOVER, THE COURT OF APPEALS' APPROACH AMOUNTS TO AN INAPPROPRIATE
CREATION OF FEDERAL COMMON LAW.  EVEN WHEN A FEDERAL STATUTE CREATES A
WHOLLY FEDERAL RIGHT BUT SPECIFIES NO PARTICULAR STATUTE OF LIMITATIONS
TO GOVERN ACTIONS UNDER THE RIGHT, THE GENERAL RULE IS TO APPLY THE
STATE STATUTE OF LIMITATIONS FOR ANALOGOUS TYPES OF ACTIONS.  SEE AUTO
WORKERS V. HOOSIER CORP., 383 U.S. 696; COPE V. ANDERSON, 331 U.S. 461;
CAMPBELL V. HAVERHILL, 155 U.S. 610; NOTE, FEDERAL STATUTES WITHOUT
LIMITATIONS PROVISIONS, 53 COL.L.REV.  68 (1953).  A SPECIAL FEDERAL
STATUTE OF LIMITATIONS IS CREATED, AS A MATTER OF FEDERAL COMMON LAW,
ONLY WHEN THE NEED FOR UNIFORMITY IS PARTICULARLY GREAT OR WHEN THE
NATURE OF THE FEDERAL RIGHT DEMANDS A PARTICULAR SORT OF STATUTE OF
LIMITATIONS.  SEE HOLMBERG V. ARMBRECHT, 327 U.S. 392; MCALLISTER V.
MAGNOLIA PETROLEUM CO., 357 U.S. 221.  BUT, UNDER THE LANDS ACT, THERE
IS NOT EVEN SUCH LIMITED FREEDOM TO CREATE A FEDERAL STATUTE OF
LIMITATIONS, FOR CONGRESS SPECIFIED THAT A COMPREHENSIVE BODY OF STATE
LAW SHOULD BE ADOPTED BY THE FEDERAL COURTS IN THE ABSENCE OF EXISTING
FEDERAL LAW.  CONGRESS SPECIFICALLY REJECTED NATIONAL UNIFORMITY AND
SPECIFICALLY PROVIDED FOR THE APPLICATION OF STATE REMEDIES WHICH
DEMAND STATE, NOT FEDERAL, STATUTES OF LIMITATION.  THUS, CONGRESS MADE
CLEAR PROVISION FOR FILLING IN THE "GAPS" IN FEDERAL LAW; IT DID NOT
INTEND THAT FEDERAL COURTS FILL IN THOSE "GAPS" THEMSELVES BY CREATING
NEW FEDERAL COMMON LAW.  /8/

        II 

ALTHOUGH WE HOLD THAT LOUISIANA'S ONE-YEAR STATUTE OF LIMITATIONS
MUST BE APPLIED UNDER THE LANDS ACT AS INTERPRETED IN RODRIGUE, WE DO
NOT BLIND OURSELVES TO THE FACT THAT THIS IS, IN RELEVANT RESPECT, A
PRE-RODRIGUE CASE.  THE RESPONDENT'S INJURY OCCURRED MORE THAN THREE
YEARS BEFORE THE ANNOUNCEMENT OF OUR DECISION IN RODRIGUE.  HE
INSTITUTED THE PRESENT LAWSUIT MORE THAN ONE YEAR BEFORE RODRIGUE. 
YET, IF THE LOUISIANA STATUTE OF LIMITATIONS CONTROLS IN THIS CASE, HIS
ACTION WAS TIME BARRED MORE THAN TWO YEARS BEFORE RODRIGUE.  IN THESE
CIRCUMSTANCES, WE MUST CONSIDER THE RESPONDENT'S ARGUMENT THAT THE
STATE STATUTE OF LIMITATIONS SHOULD BE GIVEN NONRETROACTIVE APPLICATION
UNDER RODRIGUE. 

IN RECENT YEARS, THE NONRETROACTIVE APPLICATION OF JUDICIAL
DECISIONS HAS BEEN MOST CONSPICUOUSLY CONSIDERED IN THE AREA OF THE
CRIMINAL PROCESS.  E.G., MACKEY V. UNITED STATES, 401 U.S. 667; HILL V.
CALIFORNIA, 401 U.S. 797; DESIST V. UNITED STATES, 394 U.S. 244;
LINKLETTER V. WALKER, 381 U.S. 618.  BUT THE PROBLEM IS BY NO MEANS
LIMITED TO THAT AREA.  THE EARLIEST INSTANCES OF NONRETROACTIVITY IN
THE DECISIONS OF THIS COURT-- MORE THAN A CENTURY AGO-- CAME IN CASES
OF NONCONSTITUTIONAL, NONCRIMINAL STATE LAW.  E.G., GELPCKE V. CITY OF
DUBUQUE, 1 WALL.  175; HAVEMEYER V. IOWA COUNTY, 3 WALL.  294; RAILROAD
CO. V. MCCLURE, 10 WALL.  511.  /9/  IT WAS IN A NONCRIMINAL CASE THAT
WE FIRST HELD THAT A STATE COURT MAY APPLY ITS DECISIONS
PROSPECTIVELY.  GREAT NORTHERN R. CO. V. SUNBURST OIL & REFINING CO.,
287 U.S. 358.  AND, IN THE LAST FEW DECADES, WE HAVE RECOGNIZED THE
DOCTRINE OF NONRETROACTIVITY OUTSIDE THE CRIMINAL AREA MANY TIMES, IN
BOTH CONSTITUTIONAL AND NONCONSTITUTIONAL CASES.  CIPRIANO V. CITY OF
HOUMA, 395 U.S. 701; ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544;
HANOVER SHOE V. UNITED SHOE MACHINERY CORP., 392 U.S. 481; SIMPSON V.
UNION OIL CO., 377 U.S. 13; ENGLAND V. STATE BOARD OF MEDICAL
EXAMINERS, 375 U.S. 411; CHICOT COUNTY DRAINAGE DIST. V. BAXTER STATE
BANK, 308 U.S. 371. 

IN OUR CASES DEALING WITH THE NONRETROACTIVITY QUESTION, WE HAVE
GENERALLY CONSIDERED THREE SEPARATE FACTORS.  FIRST, THE DECISION TO BE
APPLIED NONRETROACTIVELY MUST ESTABLISH A NEW PRINCIPLE OF LAW, EITHER
BY OVERRULING CLEAR PAST PRECEDENT ON WHICH LITIGANTS MAY HAVE RELIED,
SEE, E.G., HANOVER SHOE V. UNITED SHOE MACHINERY CORP., SUPRA, AT 496,
OR BY DECIDING AN ISSUE OF FIRST IMPRESSION WHOSE RESOLUTION WAS NOT
CLEARLY FORESHADOWED, SEE, E.G., ALLEN V. STATE BOARD OF ELECTIONS,
SUPRA, AT 572.  SECOND, IT HAS BEEN STRESSED THAT "WE MUST . . . WEIGH
THE MERITS AND DEMERITS IN EACH CASE BY LOOKING TO THE PRIOR HISTORY OF
THE RULE IN QUESTION, ITS PURPOSE AND EFFECT, AND WHETHER RETROSPECTIVE
OPERATION WILL FURTHER OR RETARD ITS OPERATION."  LINKLETTER V. WALKER,
SUPRA, AT 629.  FINALLY, WE HAVE WEIGHED THE INEQUITY IMPOSED BY
RETROACTIVE APPLICATION, FOR "(WHERE A DECISION OF THIS COURT COULD
PRODUCE SUBSTANTIAL INEQUITABLE RESULTS IF APPLIED RETROACTIVELY, THERE
IS AMPLE BASIS IN OUR CASES FOR AVOIDING THE 'INJUSTICE OR HARDSHIP' BY
A HOLDING OF NONRETROACTIVITY."  CIPRIANO V. CITY OF HOUMA, SUPRA, AT
706.     UPON CONSIDERATION OF EACH OF THESE FACTORS, WE CONCLUDE THAT
THE LOUISIANA ONE-YEAR STATUTE OF LIMITATIONS SHOULD NOT BE APPLIED
RETROACTIVELY IN THE PRESENT CASE.  RODRIGUE WAS NOT ONLY A CASE OF
FIRST IMPRESSION IN THIS COURT UNDER THE LANDS ACT, BUT IT ALSO
EFFECTIVELY OVERRULED A LONG LINE OF DECISIONS BY THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT HOLDING THAT ADMIRALTY LAW, INCLUDING THE
DOCTRINE OF LACHES, APPLIES THROUGH THE LANDS ACT.  SEE, E.G., PURE OIL
CO. V. SNIPES, 293 F.2D 60; MOVIBLE OFFSHORE CO. V. OUSLEY, 346 F.2D
870; LOFFLAND BROS. CO. V. ROBERTS, 386 F.2D 540.  WHEN THE RESPONDENT
WAS INJURED, FOR THE NEXT TWO YEARS UNTIL HE INSTITUTED HIS LAWSUIT,
AND FOR THE ENSUING YEAR OF PRETRIAL PROCEEDINGS, THESE COURT OF
APPEALS DECISIONS REPRESENTED THE LAW GOVERNING HIS CASE.  IT CANNOT BE
ASSUMED THAT HE DID OR COULD FORESEE THAT THIS CONSISTENT
INTERPRETATION OF THE LANDS ACT WOULD BE OVERTURNED.  THE MOST HE COULD
DO WAS TO RELY ON THE LAW AS IT THEN WAS.  "WE SHOULD NOT INDULGE IN
THE FICTION THAT THE LAW NOW ANNOUNCED HAS ALWAYS BEEN THE LAW AND,
THEREFORE, THAT THOSE WHO DID NOT AVAIL THEMSELVES OF IT WAIVED THEIR
RIGHTS."  GRIFFIN V. ILLINOIS, 351 U.S. 12, 26 (FRANKFURTER, J.,
CONCURRING IN JUDGMENT). 

TO HOLD THAT THE RESPONDENT'S LAWSUIT IS RETROACTIVELY TIME BARRED
WOULD BE ANOMALOUS INDEED.  A PRIMARY PURPOSE UNDERLYING THE ABSORPTION
OF STATE LAW AS FEDERAL LAW IN THE LANDS ACT WAS TO AID INJURED
EMPLOYEES BY AFFORDING THEM COMPREHENSIVE AND FAMILIAR REMEDIES. 
RODRIGUE V. AETNA CASUALTY & SURETY CO., SUPRA, AT 361, 365.  YET
RETROACTIVE APPLICATION OF THE LOUISIANA STATUTE OF LIMITATIONS TO THIS
CASE WOULD DEPRIVE THE RESPONDENT OF ANY REMEDY WHATSOEVER ON THE BASIS
OF SUPERSEDING LEGAL DOCTRINE THAT WAS QUITE UNFORESEEABLE.  TO
ABRUPTLY TERMINATE THIS LAWSUIT THAT HAS PROCEEDED THROUGH LENGTHY AND,
NO DOUBT, COSTLY DISCOVERY STAGES FOR A YEAR WOULD SURELY BE INIMICAL
TO THE BENEFICENT PURPOSE OF THE CONGRESS. 

IT WOULD ALSO PRODUCE THE MOST "SUBSTANTIAL INEQUITABLE RESULTS,"
CIPRIANO V. CITY OF HOUMA, SUPRA, AT 706, TO HOLD THAT THE RESPONDENT
"SLEPT ON HIS RIGHTS" AT A TIME WHEN HE COULD NOT HAVE KNOWN THE TIME
LIMITATION THAT THE LAW IMPOSED UPON HIM.  IN CIPRIANO V. CITY OF
HOUMA, SUPRA, WE INVOKED THE DOCTRINE OF NONRETROACTIVE APPLICATION TO
PROTECT PROPERTY INTERESTS OF "CITIES, BONDHOLDERS, AND OTHERS
CONNECTED WITH MUNICIPAL UTILITIES"; AND, IN ALLEN V. STATE BOARD OF
ELECTIONS, SUPRA, WE INVOKED THE DOCTRINE TO PROTECT ELECTIONS HELD
UNDER POSSIBLY DISCRIMINATORY VOTING LAWS.  CERTAINLY, THE RESPONDENT'S
POTENTIAL REDRESS FOR HIS ALLEGEDLY SERIOUS INJURY-- AN INJURY THAT MAY
SIGNIFICANTLY UNDERCUT HIS FUTURE EARNING POWER-- IS ENTITLED TO
SIMILAR PROTECTION.  AS IN ENGLAND V. STATE BOARD OF MEDICAL EXAMINERS,
SUPRA, NONRETROACTIVE APPLICATION HERE SIMPLY PRESERVES HIS RIGHT TO A
DAY IN COURT.  /10/ 

BOTH A DEVOTION TO THE UNDERLYING PURPOSE OF THE LANDS ACT'S
ABSORPTION OF STATE LAW AND A WEIGHING OF THE EQUITIES REQUIRES
NONRETROACTIVE APPLICATION OF THE STATE STATUTE OF LIMITATIONS HERE. 
ACCORDINGLY, ALTHOUGH HOLDING THAT THE OPINION OF THE COURT OF APPEALS
REFLECTS A MISAPPREHENSION OF RODRIGUE, WE AFFIRM ITS JUDGMENT
REMANDING THIS CASE TO THE TRIAL COURT. 

              IT IS SO ORDERED. 

/1/  SEE INFRA, AT 107. 

/2/  THE DECISION OF THE DISTRICT COURT IS UNREPORTED (ED LA., CIVIL
ACTION NO. 68-19D). 

/3/  THE RESPONDENT HAS MADE THE SAME ARGUMENT TO THIS COURT. 

/4/  THE FULL TEXT OF SEC. 1333(A)(1) AND SEC. 1333(A)(2) READS: 

"(A)(1) THE CONSTITUTION AND LAWS AND CIVIL AND POLITICAL
JURISDICTION OF THE UNITED STATES ARE EXTENDED TO THE SUBSOIL AND
SEABED OF THE OUTER CONTINENTAL SHELF AND TO ALL ARTIFICIAL ISLANDS AND
FIXED STRUCTURES WHICH MAY BE ERECTED THEREON FOR THE PURPOSE OF
EXPLORING FOR, DEVELOPING, REMOVING, AND TRANSPORTING RESOURCES
THEREFROM, TO THE SAME EXTENT AS IF THE OUTER CONTINENTAL SHELF WERE AN
AREA OF EXCLUSIVE FEDERAL JURISDICTION LOCATED WITHIN A STATE:
PROVIDED, BE MAINTAINED OR ISSUED ONLY UNDER THE PROVISIONS OF THIS
SUBCHAPTER. 

"(2) TO THE EXTENT THAT THEY ARE APPLICABLE AND NOT INCONSISTENT
WITH THIS SUBCHAPTER OR WITH OTHER FEDERAL LAWS AND REGULATIONS OF THE
SECRETARY NOW IN EFFECT OR HEREAFTER ADOPTED, THE CIVIL AND CRIMINAL
LAWS OF EACH ADJACENT STATE AS OF AUGUST 7, 1953 ARE DECLARED TO BE THE
LAW OF THE UNITED STATES FOR THAT PORTION OF THE SUBSOIL AND SEABED OF
THE OUTER CONTINENTAL SHELF, AND ARTIFICIAL ISLANDS AND FIXED
STRUCTURES ERECTED THEREON, WHICH WOULD BE WITHIN THE AREA OF THE STATE
IF ITS BOUNDARIES WERE EXTENDED SEAWARD TO THE OUTER MARGIN OF THE
OUTER CONTINENTAL SHELF, AND THE PRESIDENT SHALL DETERMINE AND PUBLISH
IN THE FEDERAL REGISTER SUCH PROJECTED LINES EXTENDING SEAWARD AND
DEFINING EACH SUCH AREA.  ALL OF SUCH APPLICABLE LAWS SHALL BE
ADMINISTERED AND ENFORCED BY THE APPROPRIATE OFFICERS AND COURTS OF THE
UNITED STATES.  STATE TAXATION LAWS SHALL NOT APPLY TO THE OUTER
CONTINENTAL SHELF." 

/5/  THIS IS NOT TO IMPLY THAT A FEDERAL COURT ADJUDICATING A CLAIM
UNDER STATE LAW AS ABSORBED IN THE LANDS ACT MUST FUNCTION AS IT WOULD
IN A DIVERSITY CASE.  SEE ERIE R. CO. V. TOMPKINS, 304 U.S. 64;
GUARANTY TRUST CO. V. YORK, 326 U.S. 99; LEVINSON V. DEUPREE, 345 U.S.
648, 651.  WE HOLD ONLY THAT THE STATE STATUTE OF LIMITATIONS IS PART
OF THE LAW TO BE APPLIED IN FEDERAL COURT AS IT WOULD BE PART OF THE
LAW TO BE APPLIED IN A STATE COURT. 

/6/  HERE WE ARE NOT DEALING WITH MERE "HOUSEKEEPING RULES" EMBODIED
IN STATE LAW.  CF. HANNA V. PLUMER, 380 U.S. 460, 473. 

/7/  THE COURT OF APPEALS JUSTIFIED ITS CREATION OF FEDERAL COMMON
LAW IN THIS INSTANCE BY SUGGESTING THAT PERSONAL INJURY ACTIONS UNDER
THE LANDS ACT ARE IN A "QUASI MARITIME AREA WHICH IS TRADITIONALLY
IMBUED WITH THE LACHES DOCTRINE AND WHICH PRESENTS A STRONG FEDERAL
URGE TOWARD UNIFORMITY."  430 F.2D, AT 32. 

/8/  CONTRARY TO THE SUGGESTION BY MR. JUSTICE DOUGLAS, OUR HOLDING
TODAY IS CONSONANT WITH LEVINSON V. DEUPREE, SUPRA, N. 5.  SINCE
LEVINSON INVOLVED A FEDERAL COURT'S OBLIGATION TO ADOPT STATE
PROCEDURAL RULES IN AN ADMIRALTY ACTION, IT HAS VERY LIMITED RELEVANCE
TO THE INSTANT CASE, WHICH INVOLVES AN ACTION UNDER A STATUTE WHICH
OUSTS ADMIRALTY LAW AND SPECIFICALLY DIRECTS THAT STATE LAW SHALL BE
ADOPTED AS FEDERAL LAW.  MOREOVER, LEVINSON HELD ONLY THAT STATE
"PROCEDURAL NICETIES RELATING TO AMENDMENTS OF PLEADINGS" NEED NOT BE
APPLIED BY FEDERAL ADMIRALTY COURTS, AND THE OPINION EMPHASIZED THAT IT
WAS NOT DEALING WITH AN IMPORTANT PART OF THE STATE ACTION, SUCH AS A
STATUTE OF LIMITATIONS.  345 U.S., AT 651-652.  AS POINTED OUT ABOVE,
OUR HOLDING TODAY DOES NOT EXTEND TO SUCH STATE "HOUSEKEEPING RULES." 
SEE N. 6, SUPRA. 

RICHARDS V. UNITED STATES, 369 U.S. 1, ALSO REFERRED TO BY MR.
JUSTICE DOUGLAS, HELD THAT, UNDER THE FEDERAL TORT CLAIMS ACT, A
FEDERAL COURT MUST APPLY "THE WHOLE LAW OF THE STATE WHERE THE ACT OR
OMISSION OCCURRED."  ID., AT 11.  INSOFAR AS RICHARDS BEARS ON THE
PRESENT CASE, IT SUPPORTS OUR HOLDING THAT FEDERAL COURTS SHOULD NOT
CREATE INTERSTITIAL FEDERAL COMMON LAW WHEN THE CONGRESS HAS DIRECTED
THAT A WHOLE BODY OF STATE LAW SHALL APPLY. 

/9/  THESE CASES WERE DECIDED IN THE ERA BEFORE ERIE R. CO. V.
TOMPKINS, SUPRA, N. 5.  THE FIRST CASE INVOLVING NONRETROACTIVE
APPLICATION OF STATE LAW CONCERNED INTERPRETATION OF THE MISSISSIPPI
CONSTITUTION.  ROWAN V. RUNNELS, 5 HOW.  134. 

/10/  WE DO NOT HOLD HERE THAT RODRIGUE, IN ITS ENTIRETY, MUST BE
APPLIED NONRETROACTIVELY.  RATHER, WE HOLD ONLY THAT STATE STATUTES OF
LIMITATIONS, APPLICABLE UNDER RODRIGUE'S INTERPRETATION OF THE LANDS
ACT, SHOULD NOT BE APPLIED RETROACTIVELY.  RETROACTIVE APPLICATION OF
ALL STATE SUBSTANTIVE REMEDIES UNDER RODRIGUE WOULD NOT WORK A
COMPARABLE HARDSHIP OR BE SO INCONSISTENT WITH THE PURPOSE OF THE LANDS
ACT. 

MR. JUSTICE DOUGLAS. 

RODRIGUE V. AETNA CASUALTY & SURETY CO., 395 U.S. 352, DOES NOT,
WITH ALL RESPECT, REQUIRE REVERSAL IN THIS CASE.  ACCORDINGLY, I WOULD
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS WITHOUT REACHING THE
QUESTION OF THE RETROACTIVITY OF RODRIGUE. 

RODRIGUE, LIKE THE PRESENT CASE, AROSE UNDER THE OUTER CONTINENTAL
SHELF LANDS ACT, 67 STAT. 462, 43 U.S.C. 1331 ET SEQ. THAT ACT CREATED
A FEDERAL CAUSE OF ACTION FOR OFFSHORE INJURIES ENFORCEABLE IN THE
FEDERAL COURTS, BUT MADE STATE LAWS APPLICABLE.  43 U.S.C. 1333(A)(2). 

IN RODRIGUE, LA. CIV. CODE ANN., ART. 2315 (1970) WAS RELEVANT,
WHICH PROVIDES IN PART:  "THE RIGHT TO RECOVER ALL OTHER DAMAGES CAUSED
BY AN OFFENSE OR QUASI OFFENSE, IF THE INJURED PERSON DIES, SHALL
SURVIVE FOR A PERIOD OF ONE YEAR FROM THE DEATH OF THE DECEASED . . .
." 

IN THE PRESENT CASE ART. 3536 OF THE CODE IS APPLICABLE AND IT
READS:  "THE FOLLOWING ACTIONS ARE ALSO PRESCRIBED BY ONE YEAR: 

     "THAT FOR INJURIOUS WORDS, WHETHER VERBAL OR WRITTEN, AND THAT

  FOR DAMAGES CAUSED BY ANIMALS, OR RESULTING FROM OFFENSES OR

 QUASI OFFENSES." 

THE LATTER LIMITATION IS "PRESCRIPTIVE" ONLY, I.E., THAT WHILE THE
LOUISIANA REMEDY IS BARRED, THE RIGHT IS NOT.  UNDER ART. 3536, THE
LIMITATION RUNS ONLY TO THE REMEDY AND WOULD NOT BE APPLICABLE IN
ANOTHER FORUM APPLYING THE SUBSTANTIVE RIGHT.  ISTRE V. DIAMOND M.
DRILLING CO., 226 SO.2D 779, 794-799 (LA. APP. (LA. APP. 1969). 
RESPONDENT, THEREFORE, ARGUES THAT THE FEDERAL DOCTRINE OF LACHES IS
THE ONLY LIMITATION UPON HIS RIGHT OF RECOVERY AND THAT IT IS
INAPPLICABLE WHERE, AS HERE, THERE IS NO PREJUDICE TO THE DEFENDANT AND
ANY DELAY IN FILING THE LAWSUIT WAS REASONABLY EXCUSABLE.  SEE, E.G.,
AKERS V. STATE MARINE LINES, 344 F.2D 217. 

THE LOUISIANA COURTS CONSIDER THE DISTINCTION BETWEEN PEREMPTIVE AND
PRESCRIPTIVE LIMITATIONS IMPORTANT; /1/  AND BY REASON OF THE FEDERAL
STATUTE, MAKING LOUISIANA LAW APPLICABLE, FEDERAL COURTS ARE BOUND BY
THE DISTINCTION.  RICHARDS V. UNITED STATES, 369 U.S. 1.  AS STATED IN
RODRIGUE THE FEDERAL ACT "SUPPLEMENTED GAPS IN THE FEDERAL LAW WITH
STATE LAW THROUGH THE 'ADOPTION OF STATE LAW AS THE LAW OF THE UNITED
STATES.'"  395 U.S.,AT 357. 

IN RODRIGUE-- AN ACTION FOR WRONGFUL DEATH-- THE RIGHT IS
EXTINGUISHED, IF THE ACTION FOR RECOVERY IS NOT BROUGHT WITHIN A YEAR
OF THE DEATH.  KENNEY V. TRINIDAD CORP., 349 F.2D 832; MEJIA V. UNITED
STATES, 152 F.2D 686.  UNDER ART. 3536-- WHICH GOVERNS HERE-- LOUISIANA
LAW HOLDS THAT IT IS MERELY A "PROCEDURAL RESTRAINT WHICH BARS THE
REMEDY, BUT DOES NOT EXTINGUISH THE RIGHT."  FIDELITY & CASUALTY CO. V.
C/B MR. KIM, 345 F.2D 45, 50 (CA5 1965).  SEE ALSO PAGE V. CAMERON IRON
WORKS, 259 F.2D 420, 422 (CA5 1958); JACKSON V. CONTINENTAL SOUTHERN
LINES, 172 F.SUPP.  809 (WD ARK. 1959); SUCCESSION OF PIZZILLO, 223 LA.
328, 65 SO.2D 783 (1953); DEVOE & RAYNOLDS CO. V. ROBINSON, 109 SO.2D
226 (LA. APP. 1959). 

A DISTRICT COURT, SITTING IN DIVERSITY JURISDICTION IN ARKANSAS,
APPLIED THESE PRINCIPLES OF LOUISIANA LAW AND HELD-- PROPERLY IN MY
MIND-- THAT ART. 3536 DID NOT BAR AN ACTION FILED MORE THAN ONE YEAR
AFTER THE INJURY COMPLAINED OF.  JACKSON V. CONTINENTAL SOUTHERN LINES,
SUPRA.  SEE ALSO PAGE V. CAMERON IRON WORKS, SUPRA.  THAT DECISION IS
IN PERFECT HARMONY WITH LONG-ESTABLISHED RULES OF CONFLICT OF LAWS. 
/2/ A DIFFERENT RESULT SHOULD NOT OBTAIN HERE WHERE FEDERAL
JURISDICTION, 43 U.S.C. 1333, FLOWS FROM A HEAD OTHER THAN DIVERSITY. 

APART FROM TRADITIONAL CONFLICT OF LAWS IS THE CONGRESSIONAL MANDATE
TO APPLY STATE LAWS TO THESE FEDERAL CAUSES OF ACTION.  IF WE ARE
FAITHFULLY TO APPLY THE STATE LAW OF LOUISIANA WE WOULD APPLY HERE NOT
THE LOUISIANA PEREMPTION RULE APPLIED IN RODRIGUE BUT THE LOUISIANA
PRESCRIPTIVE RULE APPLICABLE TO THE INSTANT PERSONAL INJURY CASE. 

TODAY'S DECISION CONFLICTS WITH LEVINSON V. DEUPREE, 345 U.S. 648,
WHERE THE DISTRICT COURT WAS ENFORCING IN ADMIRALTY A STATE CAUSE OF
ACTION FOR WRONGFUL DEATH.  ALTHOUGH PROCEDURAL IRREGULARITIES IN THE
APPOINTMENT OF THE ADMINISTRATOR WOULD HAVE BARRED-- UNDER THE STATE
STATUTE OF LIMITATIONS-- AN ACTION IN STATE COURT, WE HELD THAT FEDERAL
COURTS WERE FREE TO FORMULATE THEIR OWN PROCEDURAL RULES.  IF WE WERE
TO FOLLOW LEVINSON, WE WOULD NOT BIND FEDERAL COURTS TO STATE RULES OF
PROCEDURE DESIGNED TO HAVE NO APPLICATION BEYOND THE STATE FORUM FOR
WHICH THEY WERE CREATED.  /3/  CF. BYRD V. BLUE RIDGE ELECTRIC
COOPERATIVE, 356 U.S. 525, 533-539; ANGEL V. BULLINGTON, 330 U.S. 183,
192; ATKINS V. SCHMUTZ MANUFACTURING CO., 435 F.2D 527 (CA 4 1970);
NOTE, 71 COL.L.REV.  865 (1971). 

TODAY'S DECISION ALSO CONFLICTS WITH OUR DECISION IN RICHARDS V.
UNITED STATES, SUPRA.  THERE, THE FEDERAL TORT CLAIMS ACT REFERRED US
TO THE LOCAL LAW FOR A RULE OF DECISION, JUST AS RODRIGUE AND THE LANDS
ACT DO IN THE PRESENT CASE.  WE CONCLUDED THAT THE ACT "REQUIRED)
APPLICATION OF THE WHOLE LAW OF THE STATE WHERE THE ACT OR OMISSION
OCCURRED," 369 U.S., AT 11, INCLUDING ITS CONFLICT OF LAWS DECISION. 
/4/  IF WE WERE TO FOLLOW RICHARDS AND RODRIGUE IN THE PRESENT CASE, WE
WOULD APPLY LOUISIANA'S PRESCRIPTIVE RULE AS IT HAS BEEN CONSTRUED BY
LOUISIANA COURTS AND NOT USE IT TO BAR AN ACTION IN A DIFFERENT FORUM. 

FOR IN THAT OTHER FORUM-- HERE THE FEDERAL DISTRICT COURT--
LOUISIANA LAW ALLOWS THE FEDERAL COURT, CONSISTENTLY WITH CONFLICT OF
LAWS, TO APPLY A DIFFERENT LIMITATION THAN LOUISIANA WOULD APPLY IN HER
OWN COURTS. 

IN RODRIGUE, WE SAID: 

     "THE PURPOSE OF THE LANDS ACT WAS TO DEFINE A BODY OF LAW

  APPLICABLE TO THE SEABED, THE SUBSOIL, AND THE FIXED STRUCTURES

  SUCH AS THOSE IN QUESTION HERE ON THE OUTER CONTINENTAL SHELF. 

  THAT THIS LAW WAS TO BE FEDERAL LAW OF THE UNITED STATES,

  APPLYING STATE LAW ONLY AS FEDERAL LAW AND THEN ONLY WHEN NOT

  INCONSISTENT WITH APPLICABLE FEDERAL LAW, IS MADE CLEAR BY THE

  LANGUAGE OF THE ACT."  395 U.S., AT 355-356. 

WE THEN CONCLUDED:  "IT IS EVIDENT FROM THIS THAT FEDERAL LAW IS
'EXCLUSIVE' IN ITS REGULATION OF THIS AREA, AND THAT STATE LAW IS
ADOPTED ONLY AS SURROGATE FEDERAL LAW."  ID., AT 357.     SINCE THE
FEDERAL COURT IS NOT A LOUISIANA FORUM, /5/  THE LOUISIANA LAW OF
PRESCRIPTION PERMITS ENFORCEMENT OF THIS CLAIM AFTER LOUISIANA'S ONE
YEAR STATUTE HAS RUN.  /6/  THEREFORE, IF WE ARE TO BE FAITHFUL TO THE
FEDERAL SCHEME WE MUST APPLY LOUISIANA LAW; AND LOUISIANA LAW WOULD NOT
APPLY RODRIGUE IN A PERSONAL INJURY CASE WHERE THE SUIT IS NOT BROUGHT
IN A LOUISIANA FORUM. 

THE COURT OF APPEALS, SPEAKING THROUGH OUR LEADING ADMIRALTY
AUTHORITY, JUDGE BROWN, SO HELD AND WENT ON TO RULE THAT IN HARMONY
WITH LOUISIANA'S PRESCRIPTIVE RULE THIS PERSONAL INJURY SUIT WAS NOT
BARRED UNDER THE LACHES DOCTRINE FAMILIAR TO MARITIME LAW. 

THIS IS NOT A STALE CLAIM AND ITS ASSERTION AFTER THE ONE-YEAR
PERIOD RAN WAS NOT PREJUDICIAL; NO PREJUDICE WAS INDEED PLEADED.  CF.
HOLMBERG V. ARMBRECHT, 327 U.S. 392. 

ONE WHO READS THIS RECORD WILL BE IMPRESSED WITH THE GRAVE INJUSTICE
OF APPLYING THE LOUISIANA ONE-YEAR STATUTE AS IF IT WERE PEREMPTIVE,
RATHER THAN PRESCRIPTIVE.  DEATH COMES WITH A FINALITY LACKING IN SOME
PERSONAL INJURY CASES; AND THE RIGID RULE APPLIED IN RODRIGUE CAN DO NO
INJUSTICE.  BUT PERSONAL INJURIES ARE OFTEN LINGERING AND ONE MAY NOT
KNOW FOR MONTHS WHETHER HE IS PARTIALLY OR PERMANENTLY CRIPPLED,
WHETHER HE MUST BE RETRAINED FOR WHOLLY DIFFERENT WORK, AND SO ON.  IN
THIS CASE IT TOOK SOME MONTHS AFTER THE INJURY FOR RESPONDENT (1) TO
REALIZE THAT HE COULD NOT RETURN TO HIS OLD WORK, AND (2) TO DISCOVER
THE KIND OF WORK HE COULD DO. 

IF WE FOLLOWED LOUISIANA LAW, AS CONGRESS DIRECTED, WE WOULD AFFIRM
THE JUDGMENT OF THE COURT OF APPEALS, REFLECTING AS IT DOES GOOD LAW
AND A MEASURE OF JUSTICE NOT ALWAYS ALLOWABLE WHEN THE RIGIDITY OF
RODRIGUE GOVERNS A CASE. 

/1/  GUILLORY V. AVOYELLES R. CO., 104 LA. 11, 15, 28 SO. 899, 901
(1900): 

"WHEN A STATUTE CREATES A RIGHT OF ACTION AND STIPULATES THE DELAY
WITHIN WHICH THAT RIGHT IS TO BE EXECUTED, THE DELAY THUS FIXED IS NOT
PROPERLY SPEAKING ONE OF PRESCRIPTION, BUT IS ONE OF PEREMPTION. 

"STATUTES OF PRESCRIPTION SIMPLY BAR THE REMEDY.  STATUTES OF
PEREMPTION DESTROY THE CAUSE OF ACTION ITSELF.  THAT IS TO SAY, AFTER
THE LIMIT OF TIME EXPIRES THE CAUSE OF ACTION NO LONGER EXISTS; IT IS
LOST." 

/2/  G. STUMBERG, PRINCIPLES OF CONFLICT OF LAWS 146-147 (3D ED.
1963): 

"THE TRADITIONAL REACTION IN CONFLICT OF LAWS . . . HAS BEEN THAT
ORDINARILY LIMITATION IS PROCEDURAL.  THIS VIEW WAS TAKEN BY THE DUTCH
JURISTS, AND WHERE THE QUESTION ARISES OUT OF A GENERAL STATUTE, IT IS
THE VIEW GENERALLY ACCEPTED BY ANGLO-AMERICAN COURTS.  THE RESULT IS
THAT IN THE ABSENCE OF A STATUTE TO THE CONTRARY IN MOST JURISDICTIONS,
WHEN THE CLAIM IS BASED UPON FOREIGN FACTS, EVEN THOUGH THE FOREIGN
PERIOD OF LIMITATION HAS NOT RUN, THE PLAINTIFF MAY NOT RECOVER IF THE
TIME ALLOWED FOR SUIT AT THE FORUM HAS EXPIRED.  CONVERSELY, IF THE
FOREIGN PERIOD HAS EXPIRED, SUIT MAY NEVERTHELESS BE BROUGHT AT THE
FORUM IF THE TIME SPECIFIED THERE HAS NOT RUN."  (FOOTNOTES OMITTED.) 

ACCORD, RESTATEMENT OF CONFLICT OF LAWS SECS. 603-604 (1934);
RESTATEMENT (SECOND) OF CONFLICT OF LAWS SECS. 142, 143 (1971); 3 J.
BEALE, CONFLICT OF LAWS SEC. 584.1 (1935); B. CURRIE, CONFLICT OF LAWS
232-234, 255 (1963); A. EHRENZWEIG, CONFLICT OF LAWS 428-436 (1962); H.
GOODRICH, CONFLICT OF LAWS 267 (4TH ED. 1964); AILES, LIMITATION OF
ACTIONS AND THE CONFLICT OF LAWS, 31 MICH.L.REV.  474 (1933); COMMENT,
THE STATUTE OF LIMITATIONS AND THE CONFLICT OF LAWS, 28 YALEL.J. 492
(1919). 

WHILE STILL SITTING ON THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
MR. JUSTICE HARLAN SAID: 

"IN ACTIONS WHERE THE RIGHTS OF THE PARTIES ARE GROUNDED UPON THE LAW
OF JURISDICTIONS OTHER THAN THE FORUM, IT IS A WELL-SETTLED CONFLICT-OF
LAWS RULE THAT THE FORUM WILL APPLY THE FOREIGN SUBSTATIVE LAW, BUT
WILL FOLLOW ITS OWN RULES OF PROCEDURE."  BOURNIAS V. ATLANTIC MARITIME
CO., 220 F.2D 152, 154 (CA2 1955). 

MR. JUSTICE HARLAN WENT ON TO HOLD THAT A PANAMANIAN STATUTE OF
LIMITATIONS WAS NOT APPLICABLE WHERE A PANAMANIAN STATUTORY RIGHT WAS
BEING ENFORCED UNDER THE ADMIRALTY JURISDICTION OF THE FEDERAL DISTRICT
COURT. 

/3/  THE MAJORITY SUPPORTS ITS LIMITATION ON ACTIONS BY SAYING THAT
"WE ARE NOT DEALING WITH MERE 'HOUSEKEEPING RULES' EMBODIED IN STATE
LAW.  CF. HANNA V. PLUMER, 380 U.S. 460, 473."  ANTE, AT 103 N. 6. 
THIS CONCLUSION, HOWEVER, IS DIRECTLY CONTRARY TO THE CHARACTERIZATION
GIVEN THE PRESCRIPTIVE LIMITATION BY LOUISIANA COURTS: 

" . . . IT IS CONCEDED BY THE FIVE DEFENDANTS-APPELLEES THAT HAD
PLAINTIFF FILED THIS SUIT IN THE FEDERAL COURT, THE DOCTRINE OF LACHES
WOULD APPLY.  THE CASES CITED BY PLAINTIFF . . . WERE FILED IN THE
FEDERAL FORUM AND ARE DISTINGUISHED ON THIS BASIS. 

"BUT PLAINTIFF CHOSE THE STATE FORUM.  PLAINTIFF MAY HAVE PREFERRED
SOME PROCEDURAL ADVANTAGES AFFORDED IN THE STATE COURT, SUCH AS:
AGREEMENT OF ONLY NINE OF TWELVE JURORS NEEDED; ABILITY TO CALL UNDER
CROSS-EXAMINATION ANY EMPLOYEE OF A PARTY AS OPPOSED TO THE FEDERAL
RULE WHEREIN THE RIGHT TO CALL WITNESSES UNDER CROSS-EXAMINATION IS
LIMITED TO EXECUTIVE OR TOP SUPERVISORY PERSONNEL; NO PROCEDURAL
VEHICLE PROVIDED FOR DIRECTED VERDICT OR JUDGMENT N.O.V. IN STATE
COURT; OR SHORTER DELAY IN STATE COURT BETWEEN FILING PETITION AND
TRIAL.  HAVING CHOSEN THE STATE FORUM, HE IS BOUND BY STATE PROCEDURAL
RULES.  THE ARGUMENT THAT UNIFORMITY REQUIRES US TO IMPORT THE FEDERAL
PROCEDURAL LAW OF LACHES RATHER THAN USE THE LOUISIANA PROCEDURAL LAW
OF PRESCRIPTION, IS UNACCEPTABLE.  IF WE ADOPT THE FEDERAL PROCEDURAL
RULE IN THIS INSTANCE, IT WOULD LOGICALLY FOLLOW THAT MORE LOUISIANA
PROCEDURAL RULES WILL FOR THE SAME REASON, BE ABANDONED IN THE FUTURE. 
WE HOLD THAT OUR STATE COURTS ARE BOUND TO APPLY STATE PROCEDURAL
RULES."  ISTRE V. DIAMOND M. DRILLING CO., 226 SO.2D 779, 794. 

THE COURT THEN CONCLUDED, "THE APPLICABLE LOUISIANA PRESCRIPTION
STATUTE, LSA-C.C. ART. 3536, IS PROCEDURAL."  ID., AT 794-795. 

/4/  THE MAJORITY WOULD LIMIT RICHARDS' REASONING "THAT FEDERAL
COURTS SHOULD NOT CREATE INTERSTITIAL FEDERAL COMMON LAW WHEN THE
CONGRESS HAS DIRECTED THAT A WHOLE BODY OF STATE LAW WHEN THE CONGRESS
HAS DIRECTED THAT A WHOLE BODY OF STATE LAW SHALL APPLY."  ANTE, AT 105
N. 8.  IT IS PRECISELY BECAUSE WE MUST APPLY THE "WHOLE BODY" OF STATE
LAW, HOWEVER, THAT WE SHOULD APPLY THE LOUISIANA INTERPRETATION OF THAT
LAW AND NOT USE THE PRESCRIPTIVE RULE TO BAR AN ACTION IN A FEDERAL
FORUM.  H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 456-457 (1953). 

/5/  THE MAJORITY ACKNOWLEDGES THAT THE FEDERAL COURT STILL RETAINS
ITS IDENTITY AS A FEDERAL FORUM WHEN IT INDICATES THAT IT IS NOT TO
"FUNCTION AS IT WOULD IN A DIVERSITY CASE," ANTE, AT 103 N. 5, AND THAT
ONLY CERTAIN STATE RULES ARE ADOPTED, ANTE, AT 103 N. 6. 

/6/  O'SULLIVAN V. FELIX, 233 U.S. 318, DOES NOT REQUIRE A CONTRARY
RESULT BECAUSE THERE WE CONSIDERED ONLY WHETHER ART. 3536 COULD BE
APPLIED TO A FEDERAL ACTION IN A FEDERAL COURT AND NOT HOW IT SHOULD BE
APPLIED.  PETITIONER CONCEDED THAT HIS ACTION WAS BARRED IF ART. 3536
APPLIED AND "THE SOLE QUESTION PRESSED BY COUNSEL AND WHICH WE (WERE)
CALLED UPON TO DECIDE (WAS) THE APPLICATION OF THE STATE STATUTE TO THE
CONCEDED (FEDERAL) CAUSE OF ACTION."  ID., AT 321. 

LLOYD C. MELANCON ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

SAMUEL C. GAINSBURGH ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :










NLRB V. PLASTERERS' UNION, 404 U.S. 116 


       NATIONAL LABOR RELATIONS BOARD V. PLASTERERS' LOCAL UNION

           NO. 79, OPERATIVE PLASTERERS' & CEMENT MASONS'

           INTERNATIONAL ASSN., AFL-CIO, ET AL.

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT. 

NO. 70-63.  ARGUED OCTOBER 13, 1971-- DECIDED DECEMBER 6,

         1971  /0/ 


TWO UNIONS, THE PLASTERERS AND THE TILE SETTERS, IN ACCORDANCE WITH
PROCEDURES BINDING THEM TO ARBITRATE, SUBMITTED TO A BOARD THEIR
JURISDICTIONAL DISPUTE OVER WORK TO BE DONE FOR A CONTRACTOR.  THE
BOARD AWARDED THE WORK TO THE PLASTERERS.  WHEN THE CONTRACTOR AND THE
TILE SETTERS REFUSED TO ABIDE BY THE ARBITRATION BOARD'S DECISION, THE
PLASTERERS, TO FORCE REASSIGNMENT OF THE WORK, PICKETED THAT CONTRACTOR
AS WELL AS ANOTHER CONTRACTOR EMPLOYING MEMBERS OF THE TILE SETTERS. 
NEITHER CONTRACTOR WAS SUBJECT TO THE ARBITRATION AGREEMENT.  CHARGES
WERE THEREUPON FILED AGAINST THE PLASTERERS FOR ALLEGEDLY VIOLATING
SEC. 8(B)(4)(D) OF THE NATIONAL LABOR RELATIONS ACT, AND A HEARING TO
RESOLVE THE DISPUTE WAS HELD UNDER SEC. 10(K), WHICH DIRECTS THE
NATIONAL LABOR RELATION- BOARD (NLRB) TO "HEAR AND DETERMINE THE
DISPUTE OUT OF WHICH (THE ALLEGED) UNFAIR LABOR PRACTICE HAS ARISEN"
UNLESS "THE PARTIES TO SUCH DISPUTE" AGREE UPON A SETTLEMENT.  THE
NLRB, AFTER WEIGHING THE ARBITRATION BOARD'S DECISION "AND ALL (OTHER)
RELEVANT FACTORS," AWARDED THE WORK TO THE TILE SETTERS.  WHEN THE
PLASTERERS REFUSED TO ABIDE BY THE AWARD, A SEC. 8(B)(4)(D) COMPLAINT
WAS FILED AGAINST THEM AND THEY WERE FOUND TO HAVE VIOLATED THAT
PROVISION.  BOTH CONTRACTORS, WHICH HAD COLLECTIVE-BARGAINING
AGREEMENTS WITH THE TILE SETTERS (BUT NOT WITH THE PLASTERERS) AND HAD
BEEN EMPLOYING MEMBERS OF THAT UNION TO PERFORM THE OPERATION INVOLVED
IN THE JURISDICTIONAL DISPUTE, CONTENDED THAT IT WAS FAR MORE EFFICIENT
FOR THEM TO USE TILE SETTERS THAN PLASTERERS.  THE COURT OF APPEALS ON
REVIEW SET ASIDE THE NLRB'S ORDER, HOLDING THAT IT IS NOT THE EMPLOYER
BUT THE RIVAL UNIONS THAT ARE PARTIES TO THE JURISDICTIONAL DISPUTE TO
WHICH SEC. 10(K) APPLIES.  HELD:  THE EMPLOYERS HERE, BOTH OF WHICH HAD
SUBSTANTIAL FINANCIAL STAKES IN THE OUTCOME OF THE SEC. 10(K)
PROCEEDING, WERE "PARTIES TO THE DISPUTE" WITHIN THE MEANING OF THAT
PROVISION AND THE NLRB WAS EMPOWERED TO DETERMINE THE JURISDICTIONAL
DISPUTE UNDER THAT PROVISION IN THIS CASE WHERE THE COMPETING UNIONS,
BUT NOT THE EMPLOYERS, HAD AGREED UPON A VOLUNTARY METHOD OF
ADJUSTMENT.  HIGHWAY TRUCKDRIVERS, LOCAL 107 (SAFEWAY STORES, INC.),
134 N.L.R.B. 1320, DISTINGUISHED.  PP. 123-137. 

142 U.S.APP.D.C. 146, 440 F.2D 174, REVERSED. 

WHITE, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

WHEN A CHARGE IS FILED UNDER SEC. 8(B)(4)(D) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, THE PROVISION /1/  BANNING SO-CALLED
JURISDICTIONAL DISPUTES, THE BOARD MUST UNDER SEC. 10(K) "HEAR AND
DETERMINE THE DISPUTE OUT OF WHICH (THE) UNFAIR LABOR PRACTICE SHALL
HAVE ARISEN, UNLESS . . . THE PARTIES TO SUCH DISPUTE" ADJUST OR AGREE
UPON A METHOD FOR THE VOLUNTARY ADJUSTMENT OF THE DISPUTE.  /2/  THE
ISSUE HERE IS WHETHER AN EMPLOYER, PICKETED TO FORCE REASSIGNMENT OF
WORK, IS A "PARTY" TO THE "DISPUTE" FOR PURPOSES OF SEC. 10(K).  WHEN
THE TWO UNIONS INVOLVED, BUT NOT THE EMPLOYER, HAVE AGREED UPON A
METHOD OF SETTLEMENT, MUST THE BOARD DISMISS THE SEC. 10(K) PROCEEDINGS
OR MUST IF PROCEED TO DETERMINE THE DISPUTE WITH THE EMPLOYER BEING
AFFORDED A CHANCE TO PARTICIPATE? 

        I 

TEXAS STATE TILE & TERRAZZO CO. (TEXAS STATE) AND MARTINI TILE &
TERRAZZO CO. (MARTINI) ARE CONTRACTORS IN HOUSTON, TEXAS, ENGAGED IN
THE BUSINESS OF INSTALLING TILE AND TERRAZZO.  BOTH HAVE COLLECTIVE
BARGAINING AGREEMENTS WITH THE TILE, TERRAZZO AND MARBLE SETTERS LOCAL
UNION NO. 20 (TILE SETTERS) AND HAVE CHARACTERISTICALLY USED MEMBERS OF
THE TILE SETTERS UNION FOR LAYING TILE AND ALSO FOR WORK DESCRIBED IN
THE COLLECTIVE-BARGAINING CONTRACT AS APPLYING "A COAT OR COATS OF
MORTAR, PREPARED TO PROPER TOLERANCE TO RECEIVE TILE ON FLOORS, WALLS
AND CEILING REGARDLESS OF WHETHER THE MORTAR COAT IS WET OR DRY AT THE
TIME THE TILE IS APPLIED TO IT."  /3/ 

THIS CASE AROSE WHEN PLASTERERS' LOCAL UNION NO. 79, OPERATIVE
PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION OF HOUSTON,
TEXAS (PLASTERERS), PICKETED THE JOB SITES OF TEXAS STATE AND MARTINI
CLAIMING THAT THE WORK OF APPLYING THE MORTAR TO RECEIVE TILE WAS THE
WORK OF THE PLASTERERS' UNION AND NOT OF THE TILE SETTERS.  /4/
NEITHER TEXAS STATE NOR MARTINI HAD A COLLECTIVE-BARGAINING CONTRACT
WITH THE PLASTERERS OR REGULARLY EMPLOYED WORKERS REPRESENTED BY THAT
UNION. 

BEFORE THE TEXAS STATE PICKETING BEGAN, THE PLASTERERS SUBMITTED
THEIR CLAIM TO THE DISPUTED WORK TO THE NATIONAL JOINT BOARD FOR
SETTLEMENT OF JURISDICTIONAL DISPUTES (JOINT BOARD), A BODY ESTABLISHED
BY THE BUILDING TRADES DEPARTMENT, AFL-CIO, AND BY CERTAIN EMPLOYER
GROUPS.  /5/  BOTH THE PLASTERERS' AND THE TILE SETTERS' LOCALS WERE
BOUND BY JOINT BOARD DECISIONS BECAUSE THEIR INTERNATIONAL UNIONS WERE
MEMBERS OF THE AFL-CIO'S BUILDING TRADES DEPARTMENT.  NEITHER TEXAS
STATE NOR MARTINI HAD AGREED TO BE BOUND BY JOINT BOARD PROCEDURES AND
DECISIONS, HOWEVER.  THE JOINT BOARD FOUND THE WORK IN DISPUTE TO BE
COVERED BY AN AGREEMENT OF AUGUST 1917, BETWEEN THE TWO INTERNATIONAL
UNIONS, AND AWARDED THE WORK TO THE PLASTERS.  /6/  WHEN TEXAS STATE
AND THE TILE SETTERS REFUSED TO ACQUIESCE IN THE JOINT BOARD DECISION
AND CHANGE THE WORK ASSIGNMENT, THE PLASTERERS BEGAN THE PICKETING OF
TEXAS STATE WHICH FORMED THE BASIS FOR THE SEC. 8(B)(4)(D) CHARGES. 
THE PLASTERERS ALSO PICKETED A JOBSITE WHERE MARTINI EMPLOYEES, MEMBERS
OF THE TILE SETTERS, WERE INSTALLING TILE, ALTHOUGH THIS DISPUTE HAD
NOT BEEN SUBMITTED TO THE JOINT BOARD. 

MARTINI AND SOUTHWESTERN CONSTRUCTION CO., THE GENERAL CONTRACTOR
THAT HAD HIRED TEXAS STATE, FILED SEC. 8(B)(4)(D) UNFAIR LABOR PRACTICE
CHARGES AGAINST THE PLASTERERS, AND THE NLRB'S REGIONAL DIRECTOR
NOTICED A CONSOLIDATED SEC. 10(K) HEARING TO DETERMINE THE DISPUTE. 
/7/  SOUTHWESTERN, TEXAS STATE, MARTINI, AND THE TWO UNIONS
PARTICIPATED IN THE HEARING.  A PANEL OF THE BOARD NOTED THAT THE TILE
SETTERS ADMITTED BEING BOUND BY JOINT BOARD PROCEDURES, BUT DEEMED THE
JOINT BOARD DECISION TO LACK CONTROLLING WEIGHT, /8/  AND "AFTER TAKING
INTO ACCOUNT AND BALANCING ALL RELEVANT FACTORS" AWARDED THE WORK TO
THE TILE SETTERS.  /9/  WHEN THE PLASTERERS REFUSED TO INDICATE THAT
THEY WOULD ABIDE BY THE BOARD'S AWARD, A SEC. 8(B)(4)(D) COMPLAINT WAS
ISSUED AGAINST THEM, AND THEY WERE FOUND TO HAVE COMMITTED AN UNFAIR
LABOR PRACTICE BY PICKETING TO FORCE TEXAS STATE AND MARTINI TO ASSIGN
THE DISPUTED WORK TO THEM.  /10/  IN MAKING BOTH THE SEC. 10(K) AND
SEC. 8(B)(4)(D) DECISIONS, THE BOARD REJECTED THE PLASTERERS'
CONTENTION THAT EVEN THOUGH THE EMPLOYER HAD NOT AGREED TO BE BOUND BY
THE JOINT BOARD DECISION, THE PROVISIONS OF SEC. 10(K) PRECLUDED A
SUBSEQUENT BOARD DECISION BECAUSE THE COMPETING UNIONS HAD AGREED UPON
A VOLUNTARY METHOD OF ADJUSTMENT. 

ON PETITION TO REVIEW BY THE PLASTERERS AND CROSS PETITION TO
ENFORCE BY THE BOARD, A DIVIDED PANEL OF THE COURT OF APPEALS SET ASIDE
THE ORDER OF THE BOARD.  /11/  IT HELD THAT:  "IT IS NOT THE EMPLOYER
BUT THE RIVAL UNIONS (OR OTHER EMPLOYEE GROUPS) WHO ARE THE PARTIES TO
THE JURISDICTIONAL DISPUTE CONTESTING WHICH EMPLOYEES ARE ENTITLED TO
SEEK THE WORK IN QUESTION."  /12/  IT CONCLUDED THAT THE BOARD MAY NOT
MAKE A SEC. 10(K) DETERMINATION OF A JURISDICTIONAL DISPUTE WHERE THE
OPPOSING UNIONS HAVE AGREED TO SETTLE THEIR DIFFERENCES THROUGH BINDING
ARBITRATION.  BOTH THE BOARD AND THE EMPLOYERS PETITIONED FOR
CERTIORARI, AND WE GRANTED THE PETITIONS.  /13/

        II 

ORGANIZATION TO STRIKE OR THREATEN OR COERCE AN EMPLOYER OR OTHER
PERSON IN ORDER TO FORCE OR REQUIRE AN EMPLOYER TO ASSIGN PARTICULAR
WORK TO ONE GROUP OF EMPLOYEES RATHER THAN TO ANOTHER, UNLESS THE
EMPLOYER IS REFUSING TO HONOR A REPRESENTATION ORDER OF THE BOARD.  ON
ITS FACE, THE SECTION WOULD APPEAR TO COVER ANY UNION CHALLENGE TO AN
EMPLOYER WORK ASSIGNMENT WHERE THE PROHIBITED MEANS ARE EMPLOYED.  NLRB
V. RADIO & TELEVISION BROADCAST ENGINEERS UNION, LOCAL 1212, 364 U.S.
573, 576 (1961) (HEREINAFTER CBS).  AS THE CHARGING OR INTERVENING
PARTY, THE EMPLOYER WOULD NORMALLY BE A PARTY TO ANY PROCEEDINGS UNDER
THAT SECTION.  /14/  SECTION 8(B)(4)(D), HOWEVER, MUST BE READ IN LIGHT
OF SEC. 10(K) WITH WHICH IT IS INTERLOCKED.  CBS, SUPRA, AT 576.  WHEN
A SEC. 8(B)(4)(D) CHARGE IS FILED AND THERE IS REASONABLE CAUSE TO
BELIEVE THAT AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED, ISSUANCE OF
THE COMPLAINT IS WITHHELD UNTIL THE PROVISIONS OF SEC. 10(K) HAVE BEEN
SATISFIED.  THAT SECTION DIRECTS THE BOARD TO "HEAR AND DETERMINE" THE
DISPUTE OUT OF WHICH THE ALLEGED UNFAIR LABOR PRACTICE AROSE; THE BOARD
IS REQUIRED TO DECIDE WHICH UNION OR GROUP OF EMPLOYEES IS ENTITLED TO
THE DISPUTED WORK IN ACCORDANCE WITH ACCEPTABLE, BOARD-DEVELOPED
STANDARDS, UNLESS THE PARTIES TO THE UNDERLYING DISPUTE SETTLE THE CASE
OR AGREE UPON A METHOD FOR SETTLEMENT.  WHETHER THE SEC. 8(B)(4)(D)
CHARGE WILL BE SUSTAINED OR DISMISSED IS THUS DEPENDENT ON THE OUTCOME
OF THE SEC. 10(K) PROCEEDING.  THE BOARD ALLOWS AN EMPLOYER TO FULLY
PARTICIPATE IN A SEC. 10(K) PROCEEDING AS A PARTY.  IF THE EMPLOYER
PREFERS THE EMPLOYEES TO WHOM HE HAS ASSIGNED THE WORK, HIS RIGHT TO
LATER RELIEF AGAINST THE OTHER UNION'S PICKETING IS CONDITIONED UPON
HIS ABILITY TO CONVINCE THE BOARD IN THE SEC. 10(K) PROCEEDING THAT HIS
ORIGINAL ASSIGNMENT IS VALID UNDER THE CRITERIA EMPLOYED BY THE BOARD. 

THE ALLEGED UNFAIR LABOR PRACTICE IN THIS CAUSE WAS THE PICKETING OF
THE JOBSITES BY THE PLASTERERS, AND THE DISPUTE GIVING RISE TO THIS
PICKETING WAS THE DISAGREEMENT OVER WHETHER PLASTERERS OR TILE SETTERS
WERE TO LAY THE FINAL PLASTER COAT.  THIS DISPUTE WAS A THREE-CORNERED
ONE.  THE PLASTERERS OR TILE SETTERS WERE TO LAY THE FINAL PLASTER
COAT.  THIS DISPUTE WAS A THREE-CORNERED ONE.  THE PLASTERERS MADE
DEMANDS ON BOTH TEXAS STATE AND THE TILE SETTERS AND ON BOTH MARTINI
AND THE TILE SETTERS.  IN BOTH CASES, THE EMPLOYERS' REFUSAL TO ACCEDE
TO THE PLASTERS' DEMANDS INEVITABLY AND INEXTRICABLY INVOLVED THEM WITH
THE TILE SETTERS AGAINST THE PLASTERERS.  IT WAS THIS TRIANGULAR
DISPUTE THAT THE SEC. 10(K) PROCEEDING WAS INTENDED TO RESOLVE. 

IT MAY BE THAT IN SOME CASES EMPLOYERS HAVE NO STAKE IN HOW A
JURISDICTIONAL DISPUTE IS SETTLED AND ARE INTERESTED ONLY IN PROMPT
SETTLEMENT.  OTHER EMPLOYERS, AS SHOWN BY THIS CAUSE, ARE NOT NEUTRAL
AND HAVE SUBSTANTIAL ECONOMIC INTERESTS IN THE OUTCOME OF THE SEC.
10(K) PROCEEDING.  A CHANGE IN WORK ASSIGNMENT MAY RESULT IN DIFFERENT
TERMS OR CONDITIONS OF EMPLOYMENT, A NEW UNION TO BARGAIN WITH, HIGHER
WAGES OR COSTS, AND LOWER EFFICIENCY OR QUALITY OF WORK.  IN THE
CONSTRUCTION INDUSTRY, IN PARTICULAR, WHERE EMPLOYERS FREQUENTLY
CALCULATE BIDS ON VERY NARROW MARGINS, SMALL COST DIFFERENCES ARE
LIKELY TO BE EXTREMELY IMPORTANT.  /15/  IN THE PRESENT CAUSE, BOTH
EMPLOYERS HAD COLLECTIVE-BARGAINING CONTRACTS WITH THE TILE SETTERS
SPECIFICALLY COVERING THE WORK AT ISSUE; NEITHER HAD CONTRACTS WITH THE
PLASTERERS NOR EMPLOYED PLASTERERS REGULARLY.  BOTH EMPLOYERS
DETERMINED IT TO BE IN THEIR BEST INTERESTS TO PARTICIPATE VIGOROUSLY
IN THE BOARD'S SEC. 10(K) PROCEEDING.  THE EMPLOYERS CONTENDED IT WAS
MORE EFFICIENT AND LESS COSTLY TO USE THE SAME CRAFT FOR APPLYING THE
LAST COAT OF PLASTER, PUTTING ON THE BONDING COAT, AND LAYING THE TILE
AND THAT IT WAS MORE CONSISTENT WITH INDUSTRY PRACTICE TO USE THE TILE
SETTERS AS THEY DID.  /16/  BOTH COMPANIES CLAIMED THAT THEIR COSTS
WOULD BE SUBSTANTIALLY INCREASED IF THE AWARD WENT TO THE PLASTERERS,
AND THAT WITHOUT COLLECTIVE-BARGAINING CONTRACTS WITH THE PLASTERERS,
THEY WOULD LOSE 30%-40% OF THEIR WORK TO PLASTERING CONTRACTORS.  /17/
IT IS OBVIOUS, THEREFORE, THAT BOTH TEXAS STATE AND MARTINI HAD
SUBSTANTIAL STAKES IN THE OUTCOME OF THE SEC. 10(K) PROCEEDING. 

THE PHRASE "PARTIES TO THE DISPUTE" GIVING RISE TO THE PICKETING
MUST BE GIVEN ITS COMMONSENSE MEANING CORRESPONDING TO THE ACTUAL
INTERESTS INVOLVED HERE.  CF. INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, LOCAL
283 V. SCOFIELD, 382 U.S. 205, 220 (1965).  SECTION 10(K) DOES NOT
EXPRESSLY OR IMPLIEDLY DENY PARTY STATUS TO AN EMPLOYER, AND SINCE THE
STATUS TO THE EMPLOYER AND HAS REFUSED TO DISMISS THE PROCEEDING WHEN
THE UNIONS, BUT NOT THE EMPLOYER, HAVE AGREED TO SETTLE.  /18/ 

THE COURT OF APPEALS REJECTED THIS CONSTRUCTION OF SEC. 10(K).  ITS
REASONING, WHICH WE FIND UNPERSUASIVE, WAS THAT BECAUSE THE EMPLOYER IS
NOT BOUND BY THE SEC. 10(K) DECISION, HE SHOULD HAVE NO RIGHT TO INSIST
UPON PARTICIPATION.  BUT THE SEC. 10(K) DECISION STANDING ALONE, BINDS
NO ONE.  NO CEASE-AND-DESIST ORDER AGAINST EITHER UNION OR EMPLOYER
RESULTS FROM SUCH A PROCEEDING; THE IMPACT OF THE SEC. 10(K) DECISION
IS FELT IN THE SEC. 8(B)(4)(D) HEARING BECAUSE FOR ALL PRACTICAL
PURPOSES THE BOARD'S AWARD DETERMINES WHO WILL PREVAIL IN THE UNFAIR
LABOR PRACTICE PROCEEDING.  IF THE PICKETING UNION PERSISTS IN ITS
CONDUCT DESPITE A SEC. 10(K) DECISION AGAINST IT, A SEC. 8(B)(4)(D)
COMPLAINT ISSUES AND THE UNION WILL LIKELY BE FOUND GUILTY OF AN UNFAIR
LABOR PRACTICE AND BE ORDERED TO CEASE AND DESIST.  ON THE OTHER HAND,
IF THAT UNION WINS THE SEC. 10(K) DECISION AND THE EMPLOYER DOES NOT
COMPLY, THE EMPLOYER'S SEC. 8(B)(4)(D) CASE EVAPORATES AND THE CHARGES
HE FILED AGAINST THE PICKETING UNION WILL BE DISMISSED.  /19/  NEITHER
THE EMPLOYER NOR THE EMPLOYEES TO WHOM HE HAS ASSIGNED THE WORK ARE
LEGALLY BOUND TO OBSERVE THE SEC. 10(K) DECISION, BUT BOTH WILL LOSE
THEIR SEC. 8(B)(4)(D) PROTECTION AGAINST THE PICKETING WHICH MAY, AS IT
DID HERE, SHUT DOWN THE JOB.  THE EMPLOYER WILL BE UNDER INTENSE
PRESSURE, PRACTICALLY, TO CONFORM TO THE BOARD'S DECISION.  THIS IS THE
DESIGN OF THE ACT; CONGRESS PROVIDED NO OTHER WAY TO IMPLEMENT THE
BOARD'S SEC. 10(K) DECISION. 

WE DO NOT FIND THAT THE LEGISLATIVE HISTORY OF SEC. 8(B)(4)(D) AND
SEC. 10(K) REQUIRES A DIFFERENT CONCLUSION.  THE COURT OF APPEALS AND
THE PLASTERERS RELY UPON VARIOUS STATEMENTS IN THE LEGISLATIVE HISTORY
OF THE TWO SECTIONS, PARTICULARLY THE REMARKS OF SENATOR MORSE,
REFERRING TO JURISDICTIONAL DISPUTES AS CONTROVERSIES BETWEEN TWO LABOR
UNIONS, /20/  AND A PASSAGE IN THE HOUSE CONFERENCE REPORT REFERRING TO
SEC. 10(K) AS DIRECTING THE BOARD TO "HEAR AND DETERMINE DISPUTES
BETWEEN UNIONS GIVING RISE TO UNFAIR LABOR PRACTICES UNDER SECTION
8(B)(4)(D)."  /21/  NOTHING IN THESE REMARKS OR IN THE OTHER RELEVANT
LEGISLATIVE DOCUMENTS INDICATES AN AFFIRMATIVE INTENT TO EXCLUDE AN
INTERESTED EMPLOYER FROM PARTICIPATING IN A SEC. 10(K) PROCEEDING.  THE
USUAL FOCUS OF THE LEGISLATIVE DEBATES WAS ON WAYS OF PROTECTING THE
EMPLOYER FROM THE ECONOMIC HAVOC OF JURISDICTIONAL STRIKES.  /22/  BUT
IT DOES NOT FOLLOW FROM STATEMENTS CONDEMNING THE ECONOMICALLY
DELETERIOUS EFFECTS OF INTER-UNION STRIFE THAT CONGRESS INTENDED AN
EMPLOYER TO HAVE NO SAY IN A DECISION THAT MAY, PRACTICALLY, AFFECT HIS
BUSINESS IN A RADICAL WAY.  CONGRESS DID NOT EXPRESSLY FOCUS ON THE NON
NEUTRAL EMPLOYER, BUT THERE IS NOTHING IN THE LEGISLATIVE HISTORY THAT
NEGATIVES EMPLOYER STANDING; /23/  AND IN REFERRING TO THE "PARTIES TO
THE DISPUTE," CONGRESS USED TERMINOLOGY THAT WOULD ORDINARILY INCLUDE
THE EMPLOYER IN CASES SUCH AS THESE. 

THE COURT HAS FREQUENTLY CAUTIONED THAT "(IT IS AT BEST TREACHEROUS
TO FIND IN CONGRESSIONAL SILENCE ALONE THE ADOPTION OF A CONTROLLING
RULE OF LAW."  GIROUARD V. UNITED STATES, 328 U.S. 61, 69 (1946); BOYS
MARKETS, INC. V. RETAIL CLERKS UNION, LOCAL 770, 398 U.S. 235, 241
(1970).  IT IS CLEAR THAT CONGRESS INTENDED TO PROTECT EMPLOYERS AND
THE PUBLIC FROM THE DETRIMENTAL ECONOMIC IMPACT OF "INDEFENSIBLE"  /25/
JURISDICTIONAL STRIKES.  IT WOULD THEREFORE BE MYOPIC TO TRANSFORM A
PROCEDURE THAT WAS MEANT TO PROTECT EMPLOYER INTERESTS INTO A DEVICE
THAT COULD INJURE THEM.  IN THE ABSENCE OF AN "UNMISTAKABLE DIRECTIVE,"
THE COURT HAS REFUSED TO CONSTRUE LEGISLATION AIMED TO PROTECT A
CERTAIN CLASS IN A FASHION THAT WILL RUN COUNTER TO THE GOALS CONGRESS
CLEARLY INTENDED TO EFFECTUATE.  FTC V. FRED MEYER, INC., 390 U.S. 341,
349 (1968).  WE CONCLUDE, THEREFORE, THAT THESE SECTIONS WERE ENACTED
TO PROTECT EMPLOYERS WHO ARE PARTISAN IN A JURISDICTIONAL DISPUTE AS
WELL AS THOSE WHO ARE NEUTRAL. 

NOTHING IN CBS, SUPRA, MANDATES A DIFFERENT CONCLUSION.  UNTIL THAT
CASE, THE BOARD'S PRACTICE HAD BEEN TO DECIDE AGAINST THE STRIKING OR
PICKETING UNION UNLESS IT WAS ENTITLED TO THE WORK PURSUANT TO A BOARD
CERTIFICATION OR A COLLECTIVE-BARGAINING CONTRACT.  THE COURT FOUND THE
BOARD TO HAVE TAKEN TOO NARROW A VIEW OF ITS TASK AND HELD THAT THE
BOARD, EMPLOYING BROADER, MORE INCLUSIVE CRITERIA WITH RESPECT TO
ENTITLEMENT, MUST MAKE AN AFFIRMATIVE AWARD TO ONE UNION OR THE OTHER. 
IN THE COURSE OF ITS OPINION, THE COURT REFERRED TO SEC. 10(K)'S PHRASE
"THE DISPUTE OUT OF WHICH SUCH UNFAIR LABOR PRACTICE SHALL HAVE ARISEN"
AS HAVING "NO OTHER MEANING EXCEPT A JURISDICTIONAL DISPUTE UNDER SEC.
8(B)(4)(D) WHICH IS A DISPUTE BETWEEN TWO OR MORE GROUPS OF EMPLOYEES
OVER WHICH IS ENTITLED TO DO CERTAIN WORK FOR AN EMPLOYER."  364
U.S.,AT 579.  AGAIN, WE HAVE NO QUARREL WITH THE VIEW THAT SEC. 10(K)
IS DESIGNED TO DECIDE WHICH UNION IS ENTITLED TO THE WORK.  BUT THE
ISSUE BEFORE US IS WHETHER THE EMPLOYER IS ALSO A PARTY TO THAT DISPUTE
AND TO THE PROCEEDING THAT DECIDES THAT QUESTION.  THE COURT IN CBS DID
NOT HAVE BEFORE IT A CASE IN WHICH THE EMPLOYER WAS PARTICULARLY
INTERESTED IN WHICH UNION DID THE WORK, SINCE IT HAD COLLECTIVE
BARGAINING CONTRACTS WITH BOTH UNIONS AND SINCE BOTH UNIONS WERE ABLE
TO DO THE DISPUTED WORK WITH EQUAL SKILL, EXPENSE, AND EFFICIENCY.  THE
COURT RECOGNIZED THAT THERE, "AS IN MOST INSTANCES"  THE QUARREL WAS OF
"SO LITTLE INTEREST TO THE EMPLOYER THAT HE SEEMS PERFECTLY WILLING TO
ASSIGN WORK TO EITHER (UNION) IF THE OTHER WILL JUST LET HIM ALONE." 
IBID.  WE HAVE NO DOUBT, THEREFORE, THAT THE COURT HAD NO INTENTION OF
DECIDING THE CASE NOW BEFORE US. 

IF EMPLOYERS MUST BE CONSIDERED PARTIES TO THE DISPUTE THAT THE
BOARD MUST DECIDE UNDER SEC. 10(K), ABSENT PRIVATE AGREEMENT, THEY MUST
ALSO BE DEEMED PARTIES TO THE ADJUSTMENT OR AGREEMENT TO SETTLE THAT
WILL ABORT THE SEC. 10(K) PROCEEDINGS.  IT IS INSISTED THAT SO HOLDING
WILL ENCOURAGE EMPLOYERS TO AVOID PRIVATE ARBITRATION, WHEREAS HOLDING
UNION AGREEMENT ALONE SUFFICIENT TO FORECLOSE BOARD ACTION WILL
PRESSURE EMPLOYERS TO BECOME PART OF PRIVATE SETTLEMENT MECHANISMS
PRODUCTIVE OF SOUND RESULT AND MUCH SWIFTER DECISION. 

THE DIFFICULTIES WITH THIS ARGUMENT ARE SEVERAL.  FIRST OF ALL, IF
UNION AGREEMENTS TO ARBITRATE ARE SUFFICIENT TO TERMINATE SEC. 10(K)
PROCEEDINGS, THERE IS NO ASSURANCE THAT THESE PRIVATE PROCEDURES WILL
ALWAYS BE OPEN TO EMPLOYER PARTICIPATION, THAT AN EMPLOYER WILL BE
AFFORDED A MEANINGFUL CHANCE TO PARTICIPATE, OR THAT ALL RELEVANT
FACTORS WILL BE PROPERLY CONSIDERED.  /26/ 

SECOND, THE ARGUMENT FOR REGARDING THE EMPLOYER AS A DISPENSABLE
NEUTRAL IS REMINISCENT OF THE POSITION TAKEN BY THE BOARD AND REJECTED
BY THE COURT IN THE CBS CASE.  THERE, THE BOARD SOUGHT TO JUSTIFY A
NARROW VIEW OF ITS FUNCTION AND ITS FAILURE TO MAKE AFFIRMATIVE
PRIVATELY.  AS GENERATING PRESSURE TO SETTLE OR ARBITRATE PRIVATELY. 
AS SEC. 10(K) PASSED THE SENATE, IT DIRECTED THE BOARD TO DECIDE THE
DISPUTE OR TO ORDER ARBITRATION, BUT THE ARBITRATION ALTERNATIVE WAS
DELETED IN CONFERENCE, AND THE AMENDED BILL WAS PASSED BY THE SENATE
OVER THE STRENUOUS OBJECTIONS OF SENATOR MORSE AND OTHERS.  /27/  BY
THIS AMENDMENT, THE COURT IN CBS HELD THAT CONGRESS HAD EXPRESSED A
CLEAR PREFERENCE FOR BOARD DECISION AS COMPARED WITH COMPELLED
ARBITRATION, AND THAT THIS POLICY PREFERENCE MUST BE RESPECTED.  364
U.S.,AT 581-582.  ALTHOUGH THIS COURT HAD FREQUENTLY APPROVED AN
EXPANSIVE ROLE FOR PRIVATE ARBITRATION IN THE SETTLEMENT OF LABOR
DISPUTES, THIS ENFORCEMENT OF ARBITRATION AGREEMENTS AND SETTLEMENTS
HAS BEEN PREDICATED ON THE VIEW THAT THE PARTIES HAVE VOLUNTARILY BOUND
THEMSELVES TO SUCH A MECHANISM AT THE BARGAINING TABLE.  IN BOTH CAREY
V. WESTINGHOUSE ELECTRIC CORP., 375 U.S. 261, 262 (1964) AND BOYS
MARKETS, INC. V. RETAIL CLERKS UNION, LOCAL 770, 398 U.S.,AT 238, THE
EMPLOYERS HAD ACCEDED TO BINDING ARBITRATION AS THE TERMINAL STEP OF
THE GRIEVANCE PROCEDURE.  THIS CONCESSION IS NOT PRESENT IN THE INSTANT
CASE; THE EMPLOYERS HERE DID NOT EVEN HAVE A COLLECTIVE-BARGAINING
CONTRACT WITH THE PLASTERERS.  SECTION 10(K) CONTEMPLATES ONLY A
VOLUNTARY AGREEMENT AS A BAR TO A BOARD DECISION.  AS IN CBS, WE
DECLINE TO NARROW THE BOARD'S POWERS UNDER SEC. 10(K) SO THAT EMPLOYERS
ARE COERCED TO ACCEPT COMPULSORY PRIVATE ARBITRATION WHEN CONGRESS HAS
DECLINED TO ADOPT SUCH A POLICY. 

THERE REMAINS THE MATTER OF THE SO-CALLED SAFEWAY RULE ANNOUNCED BY
THE BOARD IN 1962 /28/  AND FOLLOWED SINCE.  /29/  UNDER THIS RULE, THE
BOARD HAS HELD THAT IF ONE OF THE UNIONS CLAIMING WORK EFFECTIVELY
RENOUNCES ITS CLAIM, SEC. 10(K) PROCEEDINGS ARE ABORTED DESPITE
LEGITIMATE INTERESTS AN EMPLOYER MAY HAVE IN SECURING A BOARD
DECISION.  IT IS URGED THAT IF UNION AGREEMENT PREVENTS A SEC. 10(K)
DECISION IN SUCH A SITUATION, THE EMPLOYER CANNOT BE CONSIDERED A PARTY
TO THE SEC. 10(K) DISPUTE WHEN THE UNIONS BUT NOT THE EMPLOYER HAVE
AGREED UPON A METHOD OF SETTLEMENT.  AS WE UNDERSTAND THE SAFEWAY
DOCTRINE, HOWEVER, WHEN ONE UNION DISCLAIMS THE WORK, SEC. 10(K)
PROCEEDINGS TERMINATE, NOT BECAUSE ALL "PARTIES" TO THE DISPUTE HAVE
SETTLED OR AGREED TO SETTLE WITHIN THE MEANING OF THE STATUTE, BUT ON
THE GROUND THAT, IN THE WORDS OF THE BOARD'S BRIEF IN THIS CASE, "THE
BOARD HAS POWER, UNDER SECTION 10(K), ONLY TO HEAR AND DETERMINE THE
MERITS OF A JURISDICTIONAL DISPUTE AND . . . BY DEFINITION, SUCH A
DISPUTE CANNOT EXIST UNLESS THERE ARE RIVAL CLAIMS TO THE WORK . . .
."  /30/  CONCEDEDLY, AN EMPLOYER MAY BE A THIRD PARTY TO DISPUTES OVER
WORK ASSIGNMENTS, BUT WHEN THE OTHER TWO PARTIES SETTLE THEIR
DIFFERENCES AND ONE UNION DECLINES THE WORK ASSIGNED TO IT, THE INTER
UNION CONFLICT THAT SEC. 8(B)(4)(D) AND 10(K) WERE DESIGNED TO
ELIMINATE DISAPPEARS.  A SEC. 10(K) HEARING IS A COMPARATIVE PROCEEDING
AIMED AT DETERMINING WHICH UNION IS ENTITLED TO PERFORM CERTAIN TASKS. 
ITS FUNCTION EVAPORATES WHEN ONE OF THE UNIONS RENOUNCES AND REFUSES
THE WORK.  SIMILARLY, THE APPLICABILITY OF SEC. 8(B)(4)(D) IS PREMISED
ON CONFLICTING CLAIMS OF UNIONS OR GROUPS OF EMPLOYEES FOR THE SAME
JOB; ABSENT SUCH AN ACTUAL CONFLICT, IT WOULD BE FUTILE TO PROCEED
UNDER THAT SECTION UNLESS THE EMPLOYER REPLACES THE DISCLAIMING
EMPLOYEES BY A NEW THIRD GROUP OF EMPLOYEES WHEN THEY REJECT THE WORK
ASSIGNMENT, AND THE DISFAVORED UNION RESUMES PICKETING. 

IF UNION SETTLEMENT FOLLOWED BY DISCLAIMER ENDS THE SEC. 10(K) CASE,
SOME OF THE ARGUMENT ABOUT THE EMPLOYER'S PARTY STATUS BECOMES
ACADEMIC; FOR WHETHER THE EMPLOYER IS A PARTY OR NOT, THE TWO UNIONS
ALONE CAN PREVENT A BOARD DECISION.  BUT RECOGNIZING THE EMPLOYER'S
PARTY STATUS INSURES HIS RIGHT TO PARTICIPATE WHEN THE UNIONS DO NOT
AGREE AND THE BOARD MUST COME TO A DECISION.  FURTHER, THE BOARD'S
SAFEWAY RULE APPLIES ONLY WHERE THE INTER-UNION CONFLICT IS EFFECTIVELY
SETTLED AND THE EMPLOYER NO LONGER FACES CONFLICTING CLAIMS TO THE
WORK.  AS THIS CASE DEMONSTRATES, THE BOARD DOES NOT APPLY THE SAFEWAY
RULE TO UNIMPLEMENTED AGREEMENTS TO ARBITRATE BETWEEN THE UNIONS ALONE,
AND IT DOES NOT CONSIDER IT APPLICABLE WHERE EMPLOYEES CONTINUE ON THE
JOB AFTER THEIR INTERNATIONAL UNION LOSES AN ARBITRATION PROCEEDING AND
RENOUNCES THE WORK.  /31/  THESE DE FACTO DISPUTES ARE REAL, AND THEY
DESERVE BOARD RESOLUTION IF THE PURPOSES OF SEC. 10(K) ARE TO BE
ACHIEVED.  CF. CBS, SUPRA, AT 579-580. 

THE COURT OF APPEALS WOULD EXTEND THE SAFEWAY RULE TO FORECLOSE
BOARD DECISION WHERE THE TWO UNIONS, BUT NOT THE EMPLOYER, HAVE AGREED
TO ARBITRATE; INTER-UNION AGREEMENT WAS DEEMED EQUIVALENT TO EFFECTIVE
DISCLAIMER BY ONE OF THE UNIONS.  THIS VIEW IGNORES THE NARROW VIEW THE
BOARD HAS TAKEN OF THE SAFEWAY RULE.  IT ALSO FAILS TO RECOGNIZE THE
PROBLEM ARISING WHERE A LOCAL UNION OR GROUP OF EMPLOYEES CONTINUES TO
DO WORK ASSIGNED BY THE EMPLOYER DESPITE AGREEMENT OR DISCLAIMER BY
THEIR PARENT BODY.  IT MAKES LITTLE DIFFERENCE TO THE PICKETING UNION
THAT THERE HAS BEEN A "SETTLEMENT" OR AN AGREED-UPON METHOD OF DECIDING
THE DISPUTE AS LONG AS IT IS BARRED FROM ENJOYING THE RESULTS OF SUCH A
THEORETICAL RESOLUTION.  IN THE INSTANT CASE, THE BOARD HELD A SEC.
10(K) HEARING FOR THE SIMPLE REASON THAT A LIVE UNRESOLVED
JURISDICTIONAL DISPUTE BETWEEN UNIONS AND EMPLOYER IN FACT EXISTED. 

OUR CONCLUSION EVINCES NO HOSTILITY TO VOLUNTARY SETTLEMENT OF
DISPUTES AND IS WHOLLY CONSISTENT WITH FEDERAL POLICY WITH RESPECT TO
VOLUNTARY ARBITRATION.  IN OTHER CONTEXTS, WHERE CHALLENGED CONDUCT
POSES AN ARBITRABLE DISPUTE UNDER A COLLECTIVE-BARGAINING CONTRACT BUT
IS ALSO AN UNFAIR LABOR PRACTICE WITHIN THE JURISDICTION OF THE BOARD,
THE BOARD WILL, AS A MATTER OF POLICY, DEFER TO THE ARBITRAL
SETTLEMENT, ALTHOUGH IT IS NOT BOUND TO DO SO BY THE LMRA.  SEE 29
U.S.C. 160(A); CAREY V. WESTINGHOUSE ELECTRIC CORP., 375 U.S.,AT 272,
NLRB V. STRONG, 393 U.S. 357, 360-361 (1969); NLRB V. ACME INDUSTRIAL
CO., 385 U.S. 432, 438 (1967).  ALTHOUGH THE BOARD IS NOT STATUTORILY
REQUIRED TO HONOR ARBITRATION AWARDS IN SUCH SITUATIONS, IT OFTEN
DEFERS TO THEM IF THE ARBITRATOR HAS CONSIDERED THE ALLEGED UNFAIR
LABOR PRACTICE.  SPIELBERG MFG. CO., 112 N.L.R.B. 1080 (1955);
INTERNATIONAL HARVESTER CO., 138 N.L.R.B. 923 (1962), ENFORCED SUB NOM.
RAMSEY V. NLRB, 327 F.2D 784 (CA7 1964).  BUT AGAIN, SUCH DEFERENCE IS
IN THE CONTEXT OF VOLUNTARY ARBITRATION.  IN THE CASE BEFORE US, THE
LMRA REQUIRES THAT THE BOARD DEFER ONLY WHEN ALL OF THE PARTIES HAVE
AGREED ON A METHOD OF SETTLEMENT; WHEN THERE HAS BEEN SUCH AN
AGREEMENT, THE BOARD CANNOT IGNORE OR OVERRIDE THE RESULT OF THAT
SETTLEMENT PROCEDURE.  IN THE PRESENT CAUSE, HOWEVER, IT IS CLAIMED THE
BOARD MUST DEFER WHEN LESS THAN ALL THE PARTIES TO THE DISPUTE HAVE
AGREED TO ARBITRATE. 

 REVERSED. 

/0/  TOGETHER WITH NO. 70-65, TEXAS STATE TILE & TERRAZZO CO., INC.,
ET AL. V. PLASTERERS' LOCAL UNION NO. 79, OPERATIVE PLASTERERS' &
CEMENT MASONS' INTERNATIONAL ASSN., AFL-CIO, ET AL., ALSO ON CERTIORARI
TO THE SAME COURT. 

/1/  61 STAT. 136, 29 U.S.C. 141 ET SEQ. 

/2/  SECTION 8(B)(4) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS "(I) TO ENGAGE IN, OR
TO INDUCE OR ENCOURAGE ANY INDIVIDUAL EMPLOYED BY ANY PERSON ENGAGED IN
COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE TO ENGAGE IN, A STRIKE OR
A REFUSAL IN THE COURSE OF HIS EMPLOYMENT TO USE, MANUFACTURE, PROCESS,
TRANSPORT, OR OTHERWISE, HANDLE OR WORK ON ANY GOODS, ARTICLES,
MATERIALS, OR COMMODITIES OR TO PERFORM ANY SERVICES; OR (II) TO
THREATEN, COERCE, OR RESTRAIN ANY PERSON ENGAGED IN COMMERCE OR IN AN
INDUSTRY AFFECTING COMMERCE, WHERE IN EITHER CASE AN OBJECT THEREOF IS-

        .          .        .          . 

"(D) FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE,
CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION
OR IN ANOTHER TRADE, CRAFT, OR CLASS, UNLESS SUCH EMPLOYER IS FAILING
TO CONFORM TO AN ORDER OR CERTIFICATION OF THE BOARD DETERMINING THE
BARGAINING REPRESENTATIVE FOR EMPLOYEES PERFORMING SUCH WORK."  29
U.S.C. 158(B)(4). 


"WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN AN UNFAIR
LABOR PRACTICE WITHIN THE MEANING OF PARAGRAPH (4)(D) OF SECTION 158(B)
OF THIS TITLE, THE BOARD IS EMPOWERED AND DIRECTED TO HEAR AND
DETERMINE THE DISPUTE OUT OF WHICH SUCH UNFAIR LABOR PRACTICE SHALL
HAVE ARISEN, UNLESS, WITHIN TEN DAYS AFTER NOTICE THAT SUCH CHARGE HAS
BEEN FILED, THE PARTIES TO SUCH DISPUTE SUBMIT TO THE BOARD
SATISFACTORY EVIDENCE THAT THEY HAVE ADJUSTED, OR AGREED UPON METHODS
FOR THE VOLUNTARY ADJUSTMENT OF, THE DISPUTE.  UPON COMPLIANCE BY THE
PARTIES TO THE DISPUTE WITH THE DECISION OF THE BOARD OR UPON SUCH
VOLUNTARY ADJUSTMENT OF THE DISPUTE, SUCH CHARGE SHALL BE DISMISSED." 
29 U.S.C. 160(K). 

/3/  APP. 20. 

/4/  THIS DISPUTE GREW OUT OF A NEW METHOD OF APPLYING TILE THAT WAS
DEVELOPED IN THE MID-1950'S.  R. 111, 123, 135. 

/5/  THE NATIONAL JOINT BOARD FOR THE SETTLEMENT OF JURISDICTIONAL
DISPUTES IS AN ARBITRATION PANEL ESTABLISHED BY A 1948 AGREEMENT
BETWEEN THE BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, AND
THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA AND SEVERAL SPECIALTY
CONTRACTORS' ASSOCIATIONS.  THE JOINT BOARD CONSISTS OF AN EQUAL NUMBER
OF REPRESENTATIVES OF EMPLOYERS AND UNIONS AND A NEUTRAL CHAIRMAN.  AS
EMPLOYER MAY BECOME A PARTY TO A JOINT BOARD PROCEEDING BY SIGNING A
STIPULATION AGREEING TO BE BOUND BY THE RESULTS OF THE PROCEEDING. 
ART. III, SEC. 7, AFL-CIO, BLDG. & CONSTR.  TRADES DEPT., PLAN FOR
SETTLING JURISDICTIONAL DISPUTES NATIONALLY AND LOCALLY 10 (1970). 
MEMBER UNIONS OF THE AFL-CIO'S BUILDING TRADES DEPARTMENT DO NOT HAVE
TO AGREE FORMALLY TO ABIDE BY JOINT BOARD DECISION S, BECAUSE THEY ARE
BOUND BY VIRTUE OF PROVISIONS CONTAINED IN THEIR CONSTITUTIONS.  AFL
CIO, BLDG. & CONSTR.  TRADES DEPT., PROCEDURAL RULES AND REGULATIONS OF
THE NATIONAL JOINT BOARD 2 (1970).  SEE GENERALLY K. STRAND,
JURISDICTIONAL DISPUTES IN CONSTRUCTION:  THE CAUSES, THE JOINT BOARD,
AND THE NLRB 89-104 (1961).  IN THE CASES HERE, BOTH THE TILE SETTERS
AND THE PLASTERS WERE MEMBERS OF THE BUILDING TRADES DEPARTMENT. 
/6/  IN THE TEXAS STATE CASE, THE JOINT BOARD ON NOVEMBER 9, 1966,
AWARDED ALL OF THE DISPUTED WORK TO THE PLASTERERS EXCEPT "ANY COAT TO
BE APPLIED WET THE SAME DAY UNDER TILE."  APP. 316.  THE TILE SETTERS
REFUSED TO GIVE UP THE WORK OF LAYING THE PLASTER UNDERCOAT TO WHICH
THE DRY MORTAR WAS APPLIED, CLAIMING THAT THE JOINT BOARD DECISION GAVE
THIS WORK TO THEM.  THE PLASTERERS ESTABLISHED A PICKET LINE ON JANUARY
24, 1967; ON MARCH 15, 1967, THE JOINT BOARD ISSUED A CLARIFICATION OF
ITS DECISION, STATING THAT THE FINAL SMOOTH PLASTER COAT WAS TO BE DONE
BY THE PLASTERERS UNLESS IT WAS LAID THE SAME DAY AS THE TILE AND DRY
SET MORTAR WERE APPLIED, WHICH CASE IT WAS TO BE DONE BY THE TILE
SETTERS.  APP. 341. 

/7/  THE EMPLOYER-SUBCONTRACTOR, TEXAS STATE, INTERVENED AS A
PARTY. 

/8/  APP. 22. 

/9/  THE NLRB CONSIDERED THE COLLECTIVE-BARGAINING AGREEMENTS AMONG
THE PARTIES, INDUSTRY AND AREA PRACTICE, RELATIVE SKILLS AND EFFICIENCY
OF OPERATION, PAS PRACTICES OF THE EMPLOYERS, AGREEMENTS BETWEEN THE
PLASTERERS AND THE TILE SETTERS, THE JOINT BOARD AWARD (THE NLRB
REFUSED TO GIVE THIS CONTROLLING WEIGHT BECAUSE OF ITS "AMBIGUOUS
NATURE," APP. 22), AND CONCLUDED: 

"TILE SETTERS ARE AT LEAST AS SKILLED IN THE PERFORMANCE OF THE WORK
AS PLASTERERS, AND BOTH TEXAS TILE AND MARTINI, WHICH ASSIGNED THEM TO
THE WORK, HAVE BEEN SATISFIED WITH BOTH THE QUALITY OF THEIR WORK AND
THE COST OF EMPLOYING THEM.  MOREOVER, THE INSTANT ASSIGNMENTS OF THE
DISPUTED WORK TO TILE SETTERS ARE CONSISTENT WITH THE EXPLICIT
PROVISION OF THE COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE TILE
SETTERS AND TEXAS TILE AND MARTINI, ARE CONSISTENT WITH THE PAST
PRACTICE OF THE EMPLOYERS, AND ARE NOT INCONSISTENT WITH AREA OR
INDUSTRY PRACTICE . . . ."  APP. 23.  THE BOARD'S DECISION IN THE SEC.
10(K) PROCEEDING IS REPORTED AT 167 N.L.R.B. 185 (1967) AND ITS
DECISION AND ORDER IN THE UNFAIR LABOR PRACTICE PROCEEDING ARE REPORTED
AT 172 N.L.R.B. NOS. 70, 72 (1968). 

/10/  THE SEC. 10(K) DETERMINATION IS NOT BINDING AS SUCH EVEN ON
THE STRIKING UNION.  IF THAT UNION CONTINUES TO PICKET DESPITE AN
ADVERSE SEC. 10(K) DECISION, THE BOARD MUST PROVE THE UNION GUILTY OF A
SEC. 8(B)(4)(D) VIOLATION BEFORE A CEASE-AND-DESIST ORDER CAN ISSUE. 
THE FINDINGS AND CONCLUSIONS IN A SEC. 10(K) PROCEEDING ARE NOT RES
JUDICATA ON THE UNFAIR LABOR PRACTICE ISSUE IN THE LATER SEC.
8(B)(4)(D) DETERMINATION.  INTERNATIONAL TYPOGRAPHICAL UNION, 125
N.L.R.B. 759, 761 (1959).  BOTH PARTIES MAY PUT IN NEW EVIDENCE AT THE
SEC. 8(B)(4)(D) STAGE, ALTHOUGH OFTEN, AS IN THE PRESENT CASES, THE
PARTIES AGREE TO STIPULATE THE RECORD OF THE SEC. 10(K) HEARING AS A
BASIS FOR THE BOARD'S DETERMINATION OF THE UNFAIR LABOR PRACTICE. 
FINALLY, TO EXERCISE ITS POWERS UNDER SEC. 10(K), THE BOARD NEED ONLY
FIND THAT THERE IS REASONABLE CAUSE TO BELIEVE THAT A SEC. 8(B)(4)(D)
VIOLATION HAS OCCURRED, WHILE IN THE SEC. 8(B)(4)(D) PROCEEDING ITSELF
THE BOARD MUST FIND A PREPONDERANCE OF THE EVIDENCE THAT THE PICKETING
UNION HAS VIOLATED SEC. 8(B)(4)(D).  INTERNATIONAL TYPOGRAPHICAL UNION,
SUPRA, AT 761 N. 5 (1959). 

/11/  142 U.S.APP.D.C. 146, 440 F.2D 174 (1970). 

/12/  ID., AT 152 440 F.2D,AT 180.  ALTHOUGH THE DISPUTE AT THE
MARTINI WORKSITE HAD NOT BEEN SUBMITTED TO THE JOINT BOARD, THE COURT
OF APPEALS NEVERTHELESS HELD THAT, BECAUSE THE TWO UNIONS HAD AGREED TO
BE BOUND BY THE PROCEDURES AND DECISION.  OF THE JOINT BOARD, THE NLRB
WAS PRECLUDED FROM HEARING AND DETERMINING THE MARTINI DISPUTE UNDER
SEC. 10(K). 

/13/  401 U.S. 973 (1971). 

/14/  SEE 29 CFR SECS. 102.8, 102.9, 102.109 (1971); INTERNATIONAL
UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, AFL-CIO, LOCAL 283 V. SCOFIELD, 382 U.S. 205, 219-221 (1965). 

/15/  SEE COMMENT, THE EMPLOYER AS A NECESSARY PARTY TO VOLUNTARY
SETTLEMENT OF WORK ASSIGNMENT DISPUTES UNDER SECTION 10(K) OF THE NLRA,
38 U.CHI.L.REV.  389, 400 (1971). 

/16/  R. 96-97, 130-132, 141. 

/17/  R. 95, 129, 145-148. 

/18/ SEE, E.G., LODGE 68 OF THE INT'L ASSN. OF MACHINISTS (MOORE
DRYDOCK CO.), 81 N.L.R.B. 1108, 1113-1114, 1126-1128 (1949); LOCAL 231,
INT'L HOD CARRIERS (MIDDLE STATES TELEPHONE CO.), 91 N.L.R.B. 598, 604
(1950); UNITED BROTHERHOOD OF CARPENTERS, LOCAL 581 (ORA COLLARD), 98
N.L.R.B. 346, 348-349 (1952); UNITED ASSN. OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING PIPEFITTING INDUSTRY OF THE UNITED STATES
AND CANADA, 108 N.L.R.B. 186, 197 (1954); BAY COUNTIES DISTRICT COUNCIL
OF CARPENTERS, 115 N.L.R.B. 1757, 1766-1767 (1956); LOCAL 173, WOOD,
WIRE, & METAL LATHERS' INT'L UNION (NEWARK & ESSEX PLASTERING CO.), 121
N.L.R.B. 1094, 1103-1104 (1958); INT'L UNION OF OPERATING ENGINEERS
(SCHWERMAN CO. OF PA., INC.), 139 N.L.R.B. 1426, 1429 (1962);
CARPENTERS DISTRICT COUNCIL OF DENVER (J. O. VETETO & SON), 146
N.L.R.B. 1242, 1245 (1964); ELECTRICAL WORKERS, LOCAL 26 (MCCLOSKEY &
CO.), 147 N.L.R.B. 1498, 1501-1503 (1964); OPERATIVE PLASTERERS INT'L
ASSN. (TWIN CITY TILE & MARBLE CO.), 152 N.L.R.B. 1609, 1611, 1615
(1965); INT'L UNION OF OPERATING ENGINEERS, LOCAL 49 (EGAN-MCKAY
ELECTRICAL CONTRACTORS, INC.), 164 N.L.R.B. 672, 673 (1967).  THE BOARD
HAS REASSERTED THIS VIEW SINCE THE COURT OF APPEALS' DECISION IN THE
INSTANT CASE, LATHERS LOCAL 104 (BLAINE PETTY CO.), 186 N.L.R.B. NO. 70
(1970).  UNTIL NOW, COURTS OF APPEALS HAVE UNIFORMLY UPHELD THE BOARD'S
POSITION; SEE, E.G., NEW ORLEANS TYPOGRAPHICAL UNION NO. 17 V. NLRB,
368 F.2D 755, 763 (CA5 1966), NLRB V. LOCAL 825, INT'L UNION OF
OPERATING ENGINEERS, 326 F.2D 213, 216 (CA3 1964); LOCAL 450, INT'L
UNION OF OPERATING ENGINEERS V. ELLIOTT, 256 F.2D 630, 636 (CA5 1958). 
SEE ALSO CAREY V. WESTINGHOUSE ELECTRIC CORP., 375 U.S. 261, 264
(1964), CITING WOOD, WIRE & METAL LATHERS INT'L UNION (ACOUSTICAL
CONTRACTORS ASSN.), 119 N.L.R.B. 1345, 1347 (1958). 

/19/  THIS DISMISSAL WILL NO- BE PURSUANT TO THE LANGUAGE OF SEC.
10(K) DIRECTING DISMISSAL UPON "COMPLIANCE BY THE PARTIES . . . WITH
THE (BOARD'S) DECISION" BUT, RATHER, UNDER SEC. 8(B)(4)(D) BECAUSE THE
"EMPLOYER IS FAILING TO CONFORM TO AN ORDER OR CERTIFICATION OF THE
BOARD DETERMINING THE BARGAINING REPRESENTATIVE FOR EMPLOYEES
PERFORMING SUCH WORK."  APPARENTLY, THE BOARD CONSTRUES THIS LANGUAGE
TO INCLUDE DISREGARDING A SEC. 10(K) DECISION.  BRIEF FOR THE NLRB 23
N. 16, 28 N. 21.  THE BOARD'S REGULATIONS NOW PROVIDE THAT "IF THE
BOARD DETERMINATION IS THAT EMPLOYEES REPRESENTED BY A CHARGED UNION
ARE ENTITLED TO PERFORM THE WORK IN DISPUTE, THE REGIONAL DIRECTOR
SHALL DISMISS THE CHARGE AS TO THAT UNION IRRESPECTIVE OF WHETHER THE
EMPLOYER HAS COMPLIED WITH THAT DETERMINATION."  36 FED.REG.  9133
(1971). 

/20/  93 CONG.REC.  1845.  CF. ALSO 93 CONG.REC.  1824 (REMARKS OF
SEN. MORSE). 

/21/  H. R. CONF. REP. NO. 510 ON H.R. 3020, 80TH CONG., 1ST SESS.,
57 (1947). 

/22/  SEE, E.G., 93 CONG.REC.  A1222-A1223 (REMARKS OF CONG.
LANDIS); 93 CONG.REC.  3424 (REMARKS OF CONG. HARTLEY); 93 CONG.REC. 
3227-3228 (REMARKS OF SEN. LUCAS); 93 CONG.REC.  4860-4862 (REMARKS OF
SEN. AIKEN); 93 WAS ALSO EXTENDED TO UNORGANIZED EMPLOYEES.  IN THE
SENATE BILL, SEC. 8(B)(4)(D) COVERED ONLY CASES WHERE TWO UNIONS
CLAIMED THE SAME WORK, BUT THE SECTION WAS BROADENED IN THE CONFERENCE
COMMITTEE TO COVER CONFLICTS BETWEEN ORGANIZED AND UNORGANIZED
EMPLOYEES.  SEE CBS, 364 U.S.,AT 584. 

/23/  IN WHAT IS APPARENTLY THE ONLY TIME EMPLOYER PARTICIPATION IN
THE RESOLUTION OF JURISDICTIONAL DISPUTES WAS EXPLICITLY CONSIDERED,
SENATOR TAFT INDICATED THAT THE EMPLOYER SHOULD BE A PARTY TO THE
PROCEEDING: 

"MR. MORREALE (GENERAL COUNSEL, INTERNATIONAL HODCARRIERS, BUILDING,
AND COMMON LABORERS OF AMERICA) . . . . I DO NOT THINK (COMPULSORY
ARBITRATION BETWEEN THE ANTAGONISTIC UNIONS) SHOULD BE JUST BY LABOR
ITSELF, BUT THAT IT SHOULD BE IN COMBINATION WITH INDUSTRY, BECAUSE IN
ALL THOSE MATTERS, THE EMPLOYERS ARE AFFECTED AND INTERESTED, AS WELL
AS IS LABOR.  I THINK THAT THE PROCEDURE SET UP SHOULD PROVIDE FOR A
JOINT PROCEDURE BETWEEN MANAGEMENT AND LABOR. 

"THE CHAIRMAN (SEN. TAFT) . . . . I HAVE NO OBJECTION TO GIVING BOTH
TO LABOR AND MANAGEMENT THE RIGHT TO ARBITRATE OR ADDRESS THEMSELVES TO
ARBITRATING THE QUESTION."  HEARINGS ON S. 55 BEFORE THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE, 80TH CONG., 1ST SESS., PT. 3, P.
1467 (1947). 

THE ARBITRATION PROVISION IN THE SENATE VERSION OF SEC. 10(K) WAS
DELETED WITHOUT EXPLANATION IN CONFERENCE.  SEE N. 27, INFRA. 

/24/  IN CONSTRUING A STATUTE, THE COURT HAS RULED THAT LEGISLATIVE
MATERIALS, IF "WITHOUT PROBATIVE VALUE, OR CONTRADICTORY, OR
AMBIGUOUS," SHOULD NOT BE PERMITTED TO CONTROL THE CUSTOMARY MEANING OF
WORDS.  UNITED STATES V. DICKERSON, 310 U.S. 554, 562 (1940).  SEE ALSO
GEMSCO, INC. V. WALLING, 324 U.S. 244, 260 (1945). 

THE COURT HAS PREVIOUSLY HAD OCCASION TO CONSTRUE THE TERM "PARTY"
IN THE NATIONAL LABOR RELATIONS ACT, AND IT HAS GIVEN IT A BROAD AND
REALISTIC DEFINITION.  IN LEWIS V. NLRB, 357 U.S. 10 (1958), THE ISSUE
WAS WHETHER THE BOARD'S GENERAL COUNSEL WAS A "PARTY" WHO COULD APPLY
TO THE BOARD FOR THE ISSUANCE OF A SUBPOENA.  THE GENERAL COUNSEL HAD
OBTAINED SUBPOENAS DUCES TECUM AND AD TESTIFICANDUM TO BOTH AN EMPLOYER
AND A UNION AFTER AN UNFAIR LABOR PRACTICE COMPLAINT HAD BEEN ISSUED;
AT THE HEARING ON THE COMPLAINT, THE EMPLOYER AND UNION HAD MOVED TO
REVOKE THE SUBPOENAS ON THE GROUND THAT THE GENERAL COUNSEL WAS NOT A
"PARTY" FOR PURPOSES OF SEC. 11(1) OF THE ACT WHICH PROVIDES THAT:
"THE BOARD, OR ANY MEMBER THEREOF, SHALL UPON APPLICATION OF ANY PARTY
. . . FORTHWITH ISSUE . . . SUBPOENAS . . . ." 

THE COURT NOTED THAT THE ACT DOES NOT DEFINE THE TERM "PARTY," BUT
IT EMPHASIZED THAT THE ROLE OF THE GENERAL COUNSEL WAS A "MAJOR ONE" IN
UNFAIR LABOR PRACTICE PROCEEDINGS.  357 U.S.,AT 15.  THE GENERAL
COUNSEL WAS HELD TO BE A PARTY BECAUSE HE WAS "INDISPENSABLE TO THE
PROSECUTION OF THE CASE" AND BECAUSE RELEGATING HIM TO A LESSER STATUS
WOULD "OVERLOOK THE CRITICAL ROLE HE PERFORMS IN ENFORCEMENT OF THE
ACT."  357 U.S.,AT 16.  THIS DESCRIPTION IS EQUALLY APPLICABLE TO AN
EMPLOYER'S FUNCTION IN A SEC. 8(B)(4)(D) PROCEEDING.  IN INTERNATIONAL
UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, AFL-CIO, LOCAL 283 V. SCOFIELD, 382 U.S. 205 (1965), THE COURT
WENT THROUGH A SOMEWHAT SIMILAR ANALYSIS OF THE SUBSTANTIVE INTERESTS
INVOLVED AT THE JUDICIAL ENFORCEMENT STAGE OF AN UNFAIR LABOR PRACTICE
PROCEEDING, AND CONCLUDED THAT A SUCCESSFUL "CHARGED" OR "CHARGING"
PARTY BEFORE THE BOARD HAD A RIGHT TO INTERVENE IN THE ENSUING COURT OF
APPEALS ACTION. 

EXCLUDING THE EMPLOYER FROM PARTICIPATION AS A PARTY IS INCONSISTENT
WITH THE COMMON-LAW RULE THAT "ALL PERSONS MATERIALLY INTERESTED IN THE
RESULT OF A SUIT OUGHT TO BE MADE PARTIES, SO THAT THE COURT MAY . . .
'DO COMPLETE JUSTICE.'"  VETTERLEIN V. BARNES, 124 U.S. 169, 170-171
(1888).  STORY V. LIVINGSTON, 13 PET. 359, 375 (1839). 

/25/  PRESIDENT TRUMAN, 1947 STATE OF THE UNION MESSAGE, 93
CONG.REC.  136. 

/26/  THE BOARD HAS STATED ITS GUIDELINES FOR RESOLVING
JURISDICTIONAL DISPUTES: 

"THE BOARD WILL CONSIDER ALL RELEVANT FACTORS IN DETERMINING WHO IS
ENTITLED TO THE WORK IN DISPUTE, E.G., THE SKILLS AND WORK INVOLVED,
CERTIFICATIONS BY THE BOARD, COMPANY AND INDUSTRY PRACTICE, AGREEMENTS
BETWEEN UNIONS AND BETWEEN EMPLOYERS AND UNIONS, AWARDS OF ARBITRATORS,
JOINT BOARDS, AND THE AFL-CIO IN THE SAME OR RELATED CASES, THE
ASSIGNMENT MADE BY THE EMPLOYER, AND THE EFFICIENT OPERATION OF THE
EMPLOYER'S BUSINESS.  THIS LIST OF FACTORS IS NOT MEANT TO BE
EXCLUSIVE, BUT IS BY WAY OF ILLUSTRATION . . . . EVERY DECISION WILL
HAVE TO BE AN ACT OF JUDGMENT BASED ON COMMON SENSE AND EXPERIENCE
RATHER THAN ON PRECEDENT."  ING'L ASSN. OF MACHINISTS, LODGE 1743 (J.
A. JONES CONSTRUCTION CO.), 135 N.L.R.B. 1402, 1410-1411 (1962). 

THE JOINT BOARD AWARD IN THIS CASE WAS BASED SOLELY ON THE JOINT
BOARD'S INTERPRETATION OF A 1917 AGREEMENT BETWEEN THE TWO
INTERNATIONAL UNIONS AND A 1924 DECISION INTERPRETING THAT AGREEMENT. 
R. 53, 69-70, 73-76.  AT THE TIME OF THE DISPUTE, THE CRITERIA USED BY
THE JOINT BOARD IN MAKING AWARDS WERE:  "DECISIONS AND AGREEMENTS OF
RECORD AS SET FORTH IN THE GREEN BOOK (THE BUILDING TRADES DEPARTMENT'S
BOOK OF PRECEDENTS), VALID AGREEMENTS BETWEEN AFFECTED INTERNATIONAL
UNIONS ATTESTED BY THE CHAIRMAN OF THE JOINT BOARD, ESTABLISHED TRADE
PRACTICE AND PREVAILING PRACTICE IN THE LOCALITY."  ART. III, SEC.
1(A), AFL-CIO BLDG. & CONSTR.  TRADES DEPT., PLAN FOR SETTLING
JURISDICTIONAL DISPUTES NATIONALLY AND LOCALLY (1965).  THESE CRITERIA
WERE BROADENED IN 1970 BY THE ADDITION OF ART. III, SEC. 1(F), WHICH
PROVIDES:  "BECAUSE EFFICIENCY, COST AND GOOD MANAGEMENT ARE ESSENTIAL
TO THE WELL-BEING OF THE INDUSTRY, THE JOINT BOARD SHOULD NOT IGNORE
THE INTERESTS OF THE CONSUMER IN SETTLING JURISDICTIONAL DISPUTES." 
AFL-CIO BLDG. & CONSTR.  TRADES DEPT., PLAN FOR SETTLING JURISDICTIONAL
DISPUTES NATIONALLY AND LOCALLY 8 (1970). 

/27/  93 CONG.REC.  6452-6453; 93 CONG.REC.  6519 (REMARKS OF SEN.
PEPPER). 

/28/  HIGHWAY TRUCKDRIVERS, LOCAL 107 (SAFEWAY STORES, INC.), 134
N.L.R.B. 1320 (1961). 

/29/  INT'L ASSN. OF BRIDGE WORKERS, LOCAL 678 (W. R. ALDRICH &
CO.), 145 N.L.R.B. 943 (1964); CARPET, LINOLEUM & SOFT TILE LAYERS,
LOCAL 1905 (BUTCHER & SWEENEY CONSTRUCTION CO.), 143 N.L.R.B. 251
(1963); WOOD, WIRE & METAL LATHERS UNION, LOCAL 328 (ACOUSTICS &
SPECIALTIES, INC.), 139 N.L.R.B. 598 (1962).     /30/  BRIEF FOR NLRB
30 N. 23.  IN A CASE INTERPRETING THE SAFEWAY DOCTRINE, THE BOARD
STATED THAT SEC. 10(K) IS LIMITED "TO SITUATIONS INVOLVING COMPETING
CLAIMS BETWEEN RIVAL GROUPS OF EMPLOYEES, AND (WAS) NOT DESIGNED TO
REQUIRE THE BOARD TO ARBITRATE A DISPUTE BETWEEN A UNION AND AN
EMPLOYER WHEN NO . . . COMPETING CLAIMS (OF ANOTHER UNION) ARE
INVOLVED."  CARPET, LINOLEUM & SOFT TILE LAYERS, LOCAL 1905 (BUTCHER &
SWEENEY CONSTRUCTION CO.), 143 N.L.R.B. 251, 255-256 (1963) (EMPHASIS
IN ORIGINAL). 

/31/  CARPENTERS LOCAL 1849 V. C. J. MONTAG & SONS, INC., 335 F.2D
216, 221 (CA9 1964); BLDG. AND CONSTRUCTION TRADES COUNCIL OF LAS
VEGAS, LOCAL 525 (CHARLES J. DORFMAN), 173 N.L.R.B. 1339 (1968).  THE
BOARD HAS ALSO HELD THAT A UNION CANNOT AVOID A SEC. 10(K)
DETERMINATION BY A DISCLAIMER OF INTEREST IN PRESENTLY REPRESENTING THE
EMPLOYEES IN QUESTION, UNITED MINE WORKERS (TURMAN CONSTRUCTION CO.),
136 N.L.R.B. 1068 (1962), AND IT HAS IGNORED EXPLICIT DISCLAIMERS WHEN
IT HAS QUESTIONED A REPRESENTATIVE'S AUTHORITY TO DISCLAIM WORK,
MILLWRIGHTS' LOCAL 1113 (BROGDEX CO.), 157 N.L.R.B. 996, 1002 (1966). 
SEE ALSO LOCAL 1291, INT'L LONGSHOREMEN'S ASSN. (POCAHONTAS STEAMSHIP
CO.), 152 N.L.R.B. 676 (1965), ENFORCED, 368 F.2D 107 (CA3 1966), CERT.
DENIED, 386 U.S. 1033 (1967); BRICKLAYERS' LOCAL 2, 152 N.L.R.B. 278,
282 (1965); BLDG. AND CONSTRUCTION TRADES COUNCIL OF LAS VEGAS, LOCAL
525 (CHARLES J. DORFMAN), SUPRA (1968). 

NORTON J. COME ARGUED THE CAUSE FOR PETITIONER IN NO. 70-63.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, RICHARD B. STONE,
ARNOLD ORDMAN, DOMINICK L. MANOLI, AND MARVIN ROTH.  WAYNE S. BISHOP
ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONERS IN NO. 70-65. 

DONALD J. CAPUANO ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE MARTIN F. O'DONOGHUE AND PATRICK C. O'DONOGHUE. 

LAURENCE GOLD ARGUED THE CAUSE FOR THE AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS AMICUS CURIAE URGING
AFFIRMANCE.  ON THE BRIEF WAS THOMAS E. HARRIS. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JOSEPH M.
STONE, GEORGE L. PLUMB, AND BETTY SOUTHARD MURPHY FOR ASSOCIATED
GENERAL CONTRACTORS OF AMERICA ET AL.; BY ROBERT J. CONNERTON, ARTHUR
M. SCHILLER, AND JULES BERNSTEIN FOR THE LABORERS' INTERNATIONAL UNION
OF NORTH AMERICA, AFL-CIO; AND BY ALBERT E. JENNER, JR., AND CHESTER T.
KAMIN FOR THE SCIENTIFIC APPARATUS MAKERS ASSN. 

LOUIS SHERMAN AND ELIHU I. LEIFER FILED A BRIEF FOR THE BUILDING AND
CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :









REED V. REED, 404 U.S. 71 


       REED V. REED, ADMINISTRATOR

        APPEAL FROM THE SUPREME COURT OF IDAHO

        NO. 70-4.  ARGUED OCTOBER 19, 1971-- DECIDED NOVEMBER 22,

           1971 


A MANDATORY PROVISION OF THE IDAHO PROBATE CODE THAT GIVES PREFERENCE
TO MEN OVER WOMEN WHEN PERSONS OF THE SAME ENTITLEMENT CLASS APPLY FOR
APPOINTMENT AS ADMINISTRATOR OF A DECEDENT'S ESTATE IS BASED SOLELY ON
A DISCRIMINATION PROHIBITED BY AND THEREFORE VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

93 IDAHO 511, 465 P.2D 635, REVERSED AND REMANDED. 

BURGER, C. J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

RICHARD LYNN REED, A MINOR, DIED INTESTATE IN ADA COUNTY, IDAHO, ON
MARCH 29, 1967.  HIS ADOPTIVE PARENTS, WHO HAD SEPARATED SOMETIME PRIOR
TO HIS DEATH, ARE THE PARTIES TO THIS APPEAL.  APPROXIMATELY SEVEN
MONTHS AFTER RICHARD'S DEATH, HIS MOTHER, APPELLANT SALLY REED, FILED A
PETITION IN THE PROBATE COURT OF ADA COUNTY, SEEKING APPOINTMENT AS
ADMINISTRATRIX OF HER SON'S ESTATE.  /1/  PRIOR TO THE DATE SET FOR A
HEARING ON THE MOTHER'S PETITION, APPELLEE CECIL REED, THE FATHER OF
THE DECEDENT, FILED A COMPETING PETITION SEEKING TO HAVE HIMSELF
APPOINTED ADMINISTRATOR OF THE SON'S ESTATE.  THE PROBATE COURT HELD A
JOINT HEARING ON THE TWO PETITIONS AND THEREAFTER ORDERED THAT LETTERS
OF ADMINISTRATION BE ISSUED TO APPELLEE CECIL REED UPON HIS TAKING THE
OATH AND FILING THE BOND REQUIRED BY LAW.  THE COURT TREATED SECS. 15
312 AND 15-314 OF THE IDAHO CODE AS THE CONTROLLING STATUTES AND READ
THOSE SECTIONS AS COMPELLING A PREFERENCE FOR CECIL REED BECAUSE HE WAS
A MALE. 

ADMINISTER THE ESTATE OF ONE WHO DIES INTESTATE.  IN MAKING THESE
DESIGNATIONS, THAT SECTION LISTS 11 CLASSES OF PERSONS WHO ARE SO
ENTITLED AND PROVIDES, IN SUBSTANCE, THAT THE ORDER IN WHICH THOSE
CLASSES ARE LISTED IN THE SECTION SHALL BE DETERMINATIVE OF THE
RELATIVE RIGHTS OF COMPETING APPLICANTS FOR LETTERS OF ADMINISTRATION. 
ONE OF THE 11 CLASSES SO ENUMERATED IS "(THE FATHER OR MOTHER" OF THE
PERSON DYING INTESTATE.  UNDER THIS SECTION, THEN, APPELLANT AND
APPELLEE, BEING MEMBERS OF THE SAME ENTITLEMENT CLASS, WOULD SEEM TO
HAVE BEEN EQUALLY ENTITLED TO ADMINISTER THEIR SON'S ESTATE.  SECTION
15-314 PROVIDES, HOWEVER, THAT 

"(OF SEVERAL PERSONS CLAIMING AND EQUALLY ENTITLED (UNDER SEC. 15
312) TO ADMINISTER, MALES MUST BE PREFERRED TO FEMALES, AND RELATIVES
OF THE WHOLE TO THOSE OF THE HALF BLOOD." 

IN ISSUING ITS ORDER, THE PROBATE COURT IMPLICITLY RECOGNIZED THE
EQUALITY OF ENTITLEMENT OF THE TWO APPLICANTS UNDER SEC. 15-312 AND
NOTED THAT NEITHER OF THE APPLICANTS WAS UNDER ANY LEGAL DISABILITY;
THE COURT RULED, HOWEVER, THAT APPELLEE, BEING A MALE, WAS TO BE
PREFERRED TO THE FEMALE APPELLANT (BY REASON OF SECTION 15-314 OF THE
IDAHO CODE."  IN STATING THIS CONCLUSION, THE PROBATE JUDGE GAVE NO
INDICATION THAT HE HAD ATTEMPTED TO DETERMINE THE RELATIVE CAPABILITIES
OF THE COMPETING APPLICANTS TO PERFORM THE FUNCTIONS INCIDENT TO THE
ADMINISTRATION OF AN ESTATE.  IT SEEMS CLEAR THE PROBATE JUDGE
CONSIDERED HIMSELF BOUND BY STATUTE TO GIVE PREFERENCE TO THE MALE
CANDIDATE OVER THE FEMALE, EACH BEING OTHERWISE "EQUALLY ENTITLED." 

SALLY REED APPEALED FROM THE PROBATE COURT ORDER, AND HER APPEAL WAS
TREATED BY THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF IDAHO
AS A CONSTITUTIONAL ATTACK ON SEC. 15-314.  IN DEALING WITH THE ATTACK,
THAT COURT HELD THAT THE CHALLENGED SECTION VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT /3/  AND WAS, THEREFORE,
VOID; THE MATTER WAS ORDERED "RETURNED TO THE PROBATE COURT FOR ITS
DETERMINATION OF WHICH OF THE TWO PARTIES" WAS BETTER QUALIFIED TO
ADMINISTER THE ESTATE. 

THIS ORDER WAS NEVER CARRIED OUT, HOWEVER, FOR CECIL REED TOOK A
FURTHER APPEAL TO THE IDAHO SUPREME COURT, WHICH REVERSED THE DISTRICT
COURT AND REINSTATED THE ORIGINAL ORDER NAMING THE FATHER ADMINISTRATOR
OF THE ESTATE.  IN REACHING THIS RESULT, THE IDAHO SUPREME COURT FIRST
DEALT WITH THE GOVERNING STATUTORY LAW AND HELD THAT UNDER SEC. 15-312
"A FATHER AND MOTHER ARE 'EQUALLY ENTITLED' TO LETTERS OF
ADMINISTRATION," BUT THE PREFERENCE GIVEN TO MALES BY SEC. 15-314 IS
"MANDATORY" AND LEAVES NO ROOM FOR THE EXERCISE OF A PROBATE COURT'S
DISCRETION IN THE APPOINTMENT OF ADMINISTRATORS.  HAVING THUS
DEFINITIVELY AND AUTHORITATIVELY INTERPRETED THE STATUTORY PROVISIONS
INVOLVED, THE IDAHO SUPREME COURT THEN PROCEEDED TO EXAMINE, AND
REJECT, SALLY REED'S CONTENTION THAT SEC. 15-314 VIOLATES THE EQUAL
PROTECTION CLAUSE BY GIVING A MANDATORY PREFERENCE TO MALES OVER
FEMALES, WITHOUT REGARD TO THEIR INDIVIDUAL QUALIFICATIONS AS POTENTIAL
ESTATE ADMINISTRATORS.  93 IDAHO 511, 465 P.2D 635. 

SALLY REED THEREUPON APPEALED FOR REVIEW BY THIS COURT PURSUANT TO
28 U.S.C. 1257(2), AND WE NOTED PROBABLE JURISDICTION.  401 U.S. 934. 
HAVING EXAMINED THE RECORD AND CONSIDERED THE BRIEFS AND ORAL ARGUMENTS
OF THE PARTIES, WE HAVE CONCLUDED THAT THE ARBITRARY PREFERENCE
ESTABLISHED IN FAVOR OF MALES BY SEC. 15-314 OF THE IDAHO CODE CANNOT
STAND IN THE FACE OF THE FOURTEENTH AMENDMENT'S COMMAND THAT NO STATE
DENY THE EQUAL PROTECTION OF THE LAWS TO ANY PERSON WITHIN ITS
JURISDICTION.  /4/ 

IDAHO DOES NOT, OF COURSE, DENY LETTERS OF ADMINISTRATION TO WOMEN
ALTOGETHER.  INDEED, UNDER SEC. 15-312, A WOMAN WHOSE SPOUSE DIES
INTESTATE HAS A PREFERENCE OVER A SON, FATHER, BROTHER, OR ANY OTHER
MALE RELATIVE OF THE DECEDENT.  MOREOVER, WE CAN JUDICIALLY NOTICE THAT
IN THIS COUNTRY, PRESUMABLY DUE TO THE GREATER LONGEVITY OF WOMEN, A
LARGE PROPORTION OF ESTATES, BOTH INTESTATE AND UNDER WILLS OF
DECEDENTS, ARE ADMINISTERED BY SURVIVING WIDOWS. 

WHERE COMPETING APPLICATIONS FOR LETTERS OF ADMINISTRATION HAVE BEEN
FILED BY BOTH MALE AND FEMALE MEMBERS OF THE SAME ENTITLEMENT CLASS
ESTABLISHED BY SEC. 15-312.  IN SUCH SITUATIONS, SEC. 15-314 PROVIDES
THAT DIFFERENT TREATMENT BE ACCORDED TO THE APPLICANTS ON THE BASIS OF
THEIR SEX; IT THUS ESTABLISHES A CLASSIFICATION SUBJECT TO SCRUTINY
UNDER THE EQUAL PROTECTION CLAUSE. 

IN APPLYING THAT CLAUSE, THIS COURT HAS CONSISTENTLY RECOGNIZED THAT
THE FOURTEENTH AMENDMENT DOES NOT DENY TO STATES THE POWER TO TREAT
DIFFERENT CLASSES OF PERSONS IN DIFFERENT WAYS.  BARBIER V. CONNOLLY,
113 U.S. 27 (1885); LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61
(1911); RAILWAY EXPRESS AGENCY V. NEW YORK, 336 U.S. 106 (1949);
MCDONALD V. BOARD OF ELECTION COMMISSIONERS, 394 U.S. 802 (1969).  THE
EQUAL PROTECTION CLAUSE OF THAT AMENDMENT DOES, HOWEVER, DENY TO STATES
THE POWER TO LEGISLATE THAT DIFFERENT TREATMENT BE ACCORDED TO PERSONS
PLACED BY A STATUTE INTO DIFFERENT CLASSES ON THE BASIS OF CRITERIA
WHOLLY UNRELATED TO THE OBJECTIVE OF THAT STATUTE.  A CLASSIFICATION
"MUST BE REASONABLE, NOT ARBITRARY, AND MUST REST UPON SOME GROUND OF
DIFFERENCE HAVING A FAIR AND SUBSTANTIAL RELATION TO THE OBJECT OF THE
LEGISLATION, SO THAT ALL PERSONS SIMILARLY CIRCUMSTANCED SHALL BE
TREATED ALIKE."  ROYSTER GUANO CO. V. VIRGINIA, 253 U.S. 412, 415
(1920).  THE QUESTION PRESENTED BY THIS CASE, THEN, IS WHETHER A
DIFFERENCE IN THE SEX OF COMPETING APPLICANTS FOR LETTERS OF
ADMINISTRATION BEARS A RATIONAL RELATIONSHIP TO A STATE OBJECTIVE THAT
IS SOUGHT TO BE ADVANCED BY THE OPERATION OF SECS. 15-312 AND 15-314. 

IN UPHOLDING THE LATTER SECTION, THE IDAHO SUPREME COURT CONCLUDED
THAT ITS OBJECTIVE WAS TO ELIMINATE ONE AREA OF CONTROVERSY WHEN TWO OR
MORE PERSONS, EQUALLY ENTITLED UNDER SEC. 15-312, SEEK LETTERS OF
ADMINISTRATION AND THEREBY PRESENT THE PROBATE COURT "WITH THE ISSUE OF
WHICH ONE SHOULD BE NAMED."  THE COURT ALSO CONCLUDED THAT WHERE SUCH
PERSONS ARE NOT OF THE SAME SEX, THE ELIMINATION OF FEMALES FROM
CONSIDERATION "IS NEITHER AN ILLOGICAL NOR ARBITRARY METHOD DEVISED BY
THE LEGISLATURE TO RESOLVE AN ISSUE THAT WOULD OTHERWISE REQUIRE A
HEARING AS TO THE RELATIVE MERITS . . . OF THE TWO OR MORE PETITIONING
RELATIVES . . . ."  93 IDAHO, AT 514, 465 P.2D,AT 638. 

CLEARLY THE OBJECTIVE OF REDUCING THE WORKLOAD ON PROBATE COURTS BY
ELIMINATING ONE CLASS OF CONTESTS IS NOT WITHOUT SOME LEGITIMACY.  THE
CRUCIAL QUESTION, HOWEVER, IS WHETHER SEC. 15-314 ADVANCES THAT
OBJECTIVE IN A MANNER CONSISTENT WITH THE COMMAND OF THE EQUAL
PROTECTION CLAUSE.  WE HOLD THAT IT DOES NOT.  TO GIVE A MANDATORY
PREFERENCE TO MEMBERS OF EITHER SEX OVER MEMBERS OF THE OTHER, MERELY
TO ACCOMPLISH THE ELIMINATION OF HEARINGS ON THE MERITS, IS TO MAKE THE
VERY KIND OF ARBITRARY LEGISLATIVE CHOICE FORBIDDEN BY THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT; AND WHATEVER MAY BE SAID
AS TO THE POSITIVE VALUES OF AVOIDING INTRAFAMILY CONTROVERSY, THE
CHOICE IN THIS CONTEXT MAY NOT LAWFULLY BE MANDATED SOLELY ON THE BASIS
OF SEX. 

WE NOTE FINALLY THAT IF SEC. 15-314 IS VIEWED MERELY AS A MODIFYING
APPENDAGE TO SEC. 15-312 AND AS AIMED AT THE SAME OBJECTIVE, ITS
CONSTITUTIONALITY IS NOT THEREBY SAVED.  THE OBJECTIVE OF SEC. 15-312
CLEARLY IS TO ESTABLISH DEGREES OF ENTITLEMENT OF VARIOUS CLASSES OF
PERSONS IN ACCORDANCE WITH THEIR VARYING DEGREES AND KINDS OF
RELATIONSHIP THE INTESTATE.  REGARDLESS OF THEIR SEX, PERSONS WITHIN
ANY ONE OF THE ENUMERATED CLASSES OF THAT SECTION ARE SIMILARLY
SITUATED WITH RESPECT TO THAT OBJECTIVE.  BY PROVIDING DISSIMILAR
TREATMENT FOR MEN AND WOMEN WHO ARE THUS SIMILARLY SITUATED, THE
CHALLENGED SECTION VIOLATES THE EQUAL PROTECTION CLAUSE.  ROYSTER GUANO
CO. V. VIRGINIA, SUPRA. 

THE JUDGMENT OF THE IDAHO SUPREME COURT IS REVERSED AND THE CASE
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  IN HER PETITION, SALLY REED ALLEGED THAT HER SON'S ESTATE,
CONSISTING OF A FEW ITEMS OF PERSONA PROPERTY AND A SMALL SAVINGS
ACCOUNT, HAD AN AGGREGATE VALUE OF LESS THAN $1,000. 

/2/  SECTION 15-312 PROVIDES AS FOLLOWS: 

"ADMINISTRATION OF THE ESTATE OF A PERSON DYING INTESTATE MUST BE
GRANTED TO SOME ONE OR MORE OF THE PERSONS HEREINAFTER MENTIONED, AND
THEY ARE RESPECTIVELY ENTITLED THERETO IN THE FOLLOWING ORDER: 

"1.  THE SURVIVING HUSBAND OR WIFE OR SOME COMPETENT PERSON WHOM HE
OR SHE MAY REQUEST TO HAVE APPOINTED. 

"2.  THE CHILDREN. 

"3.  THE FATHER OR MOTHER. 

"4.  THE BROTHERS. 

"5.  THE SISTERS. 

"6.  THE GRANDCHILDREN. 

"7.  THE NEXT OF KIN ENTITLED TO SHARE IN THE DISTRIBUTION OF THE
ESTATE. 

"8.  ANY OF THE KINDRED. 

"9.  THE PUBLIC ADMINISTRATOR. 

"10.  THE CREDITORS OF SUCH PERSON AT THE TIME OF DEATH. 

"11.  ANY PERSON LEGALLY COMPETENT. 

"IF THE DECEDENT WAS A MEMBER OF A PARTNERSHIP AT THE TIME OF HIS
DECEASE, THE SURVIVING PARTNER MUST IN NO CASE BE APPOINTED
ADMINISTRATOR OF HIS ESTATE." 

/3/  THE COURT ALSO HELD THAT THE STATUTE VIOLATED ART. I, SEC. 1,
OF THE IDAHO CONSTITUTION. 

/4/  WE NOTE THAT SEC. 15-312, SET OUT IN N. 2, SUPRA, APPEARS TO
GIVE A SUPERIOR ENTITLEMENT TO BROTHERS OF AN INTESTATE (CLASS 4) THAN
IS GIVEN TO SISTERS (CLASS 5).  THE PARTIES NOW BEFORE THE COURT ARE
NOT AFFECTED BY THE OPERATION OF SEC. 15-312 IN THIS RESPECT, HOWEVER,
AND APPELLANT HAS MADE NO CHALLENGE TO THAT SECTION. 

WE FURTHER NOTE THAT ON MARCH 12, 1971, THE IDAHO LEGISLATURE
ADOPTED THE UNIFORM PROBATE CODE, EFFECTIVE JULY 1, 1972.  IDAHO LAWS
1971, C. 111, P. 233.  ON THAT DATE, SECS. 15-312 AND 15-314 OF THE
PRESENT CODE WILL, THEN, BE EFFECTIVELY REPEALED, AND THERE IS IN THE
NEW LEGISLATION NO MANDATORY PREFERENCE FOR MALES OVER FEMALES AS
ADMINISTRATORS OF ESTATES. 

ALLEN R. DERR ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE MELVIN L. WULF, RUTH BADER GINSBURG, PAULI MURRAY, AND
DOROTHY KENYON. 

CHARLES S. STOUT ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS MYRON E. ANDERSON. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY J. LEE RANKING
AND NORMAN REDLICH FOR THE CITY OF NEW YORK; BY MARTHA W. GRIFFITHS,
PHINEAS INDRITZ, LEO KANOWITZ, MARGUERITE RAWALT, SYLVIA ROBERTS, AND
FAITH SEIDENBERG FOR AMERICAN VETERANS COMMITTEE, INC., ET AL.; AND BY
BIRCH BAYH FOR THE NATIONAL FEDERATION OF BUSINESS AND PROFESSIONAL
WOMEN'S CLUBS, INC.
..END :






RICHARDSON V. BELCHER, 404 U.S. 78 


       RICHARDSON, SECRETARY OF HEALTH, EDUCATION, AND WELFARE V.

           BELCHER

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF WEST VIRGINIA

        NO. 70-53.  ARGUED OCTOBER 13, 1971-- DECIDED NOVEMBER 22,

           1971 


SOCIAL SECURITY BENEFITS TO REFLECT WORKMEN'S COMPENSATION PAYMENTS,
HAS A RATIONAL BASIS AND DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT. 

317 F.SUPP.  1294, REVERSED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND WHITE AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 84.  MARSHALL, J., FILED A DISSENTING
OPINION, IN WHICH BRENNAN, J., JOINED, POST, P. 88. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE APPELLEE WAS GRANTED SOCIAL SECURITY DISABILITY BENEFITS
EFFECTIVE IN OCTOBER 1968, IN THE AMOUNT OF $329.70 PER MONTH FOR
HIMSELF AND HIS FAMILY.  IN JANUARY 1969, THE FEDERAL PAYMENT WAS
REDUCED TO $225.30 MONTHLY UNDER THE "OFFSET" PROVISION OF SECTION 224
OF THE SOCIAL SECURITY ACT, 79 STAT. 406, 42 U.S.C. 424A, /1/  UPON A
FINDING THAT THE APPELLEE WAS RECEIVING WORKMEN'S COMPENSATION BENEFITS
FROM THE STATE OF WEST VIRGINIA IN THE AMOUNT OF $203.60 PER MONTH. 
AFTER EXHAUSTING HIS ADMINISTRATIVE REMEDIES, THE APPELLEE BROUGHT THIS
ACTION CHALLENGING THE REDUCTION OF PAYMENTS REQUIRED BY SEC. 224 ON
THE GROUND THAT THE STATUTORY PROVISION DEPRIVED HIM OF THE DUE PROCESS
OF LAW GUARANTEED BY THE FIFTH AMENDMENT.  THE DISTRICT JUDGE,
DISAGREEING WITH OTHER COURTS THAT HAVE CONSIDERED THE QUESTION, /2/
HELD THE STATUTE UNCONSTITUTIONAL.  317 F.SUPP.  1294.  THE SECRETARY
OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE APPEALED DIRECTLY
TO THIS COURT UNDER 28 U.S.C. 1252.  /3/  WE NOTED PROBABLE
JURISDICTION, 401 U.S. 935, AND THE CASE WAS BRIEFED AND ARGUED ON THE
MERITS.  WE NOW REVERSE THE JUDGMENT OF THE DISTRICT COURT. 

IN OUR LAST CONSIDERATION OF A CHALLENGE TO THE CONSTITUTIONALITY OF
A CLASSIFICATION CREATED UNDER THE SOCIAL SECURITY ACT, WE HELD THAT "A
PERSON COVERED BY THE ACT HAS NOT SUCH A RIGHT IN BENEFIT PAYMENTS AS
WOULD MAKE EVERY DEFEASANCE OF 'ACCRUED' INTERESTS VIOLATIVE OF THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT."  FLEMMING V. NESTOR, 363 U.S.
603, 611.  THE FACT THAT SOCIAL SECURITY BENEFITS ARE FINANCED IN PART
BY TAXES ON AN EMPLOYEE'S WAGES DOES NOT IN ITSELF LIMIT THE POWER OF
CONGRESS TO FIX THE LEVELS OF BENEFITS UNDER THE ACT OR THE CONDITIONS
UPON WHICH THEY MAY BE PAID.  NOR DOES AN EXPECTATION OF PUBLIC
BENEFITS CONFER A CONTRACTUAL RIGHT TO RECEIVE THE EXPECTED AMOUNTS. 
OUR DECISION IN GOLDBERG V. KELLY, 397 U.S. 254, UPON WHICH THE
DISTRICT COURT RELIED, HELD THAT AS A MATTER OF PROCEDURAL DUE PROCESS
THE INTEREST OF A WELFARE RECIPIENT IN THE CONTINUED PAYMENT OF
BENEFITS IS SUFFICIENTLY FUNDAMENTAL TO PROHIBIT THE TERMINATION OF
THOSE BENEFITS WITHOUT A PRIOR EVIDENTIARY HEARING.  BUT THERE IS NO
CONTROVERSY OVER PROCEDURE IN THE PRESENT CASE, AND THE ANALOGY DRAWN
IN GOLDBERG BETWEEN SOCIAL WELFARE AND "PROPERTY," 397 U.S.,AT 262 N.
8, CANNOT BE STRETCHED TO IMPOSE A CONSTITUTIONAL LIMITATION ON THE
POWER OF CONGRESS TO MAKE SUBSTANTIVE CHANGES IN THE LAW OF ENTITLEMENT
TO PUBLIC BENEFITS. 

TO CHARACTERIZE AN ACT OF CONGRESS AS CONFERRING A "PUBLIC BENEFIT"
DOES NOT, OF COURSE, IMMUNIZE IT FROM SCRUTINY UNDER THE FIFTH
AMENDMENT.  WE HAVE HELD THAT "(THE INTEREST OF A COVERED EMPLOYEE
UNDER THE (SOCIAL SECURITY) ACT IS OF SUFFICIENT SUBSTANCE TO FALL
WITHIN THE PROTECTION FROM ARBITRARY GOVERNMENTAL ACTION AFFORDED BY
THE DUE PROCESS CLAUSE."  FLEMMING V. NESTOR, SUPRA, AT 611.  THE
APPELLEE ARGUES THAT THE CLASSIFICATION EMBODIED IN SEC. 224 IS
ARBITRARY BECAUSE IT DISCRIMINATES BETWEEN THOSE DISABLED EMPLOYEES WHO
RECEIVE WORKMEN'S COMPENSATION AND THOSE WHO RECEIVE COMPENSATION FROM
PRIVATE INSURANCE OR FROM TORT CLAIM AWARDS.  WE CANNOT SAY THAT THIS
DIFFERENCE IN TREATMENT IS CONSTITUTIONALLY INVALID. 

A STATUTORY CLASSIFICATION IN THE AREA OF SOCIAL WELFARE IS
CONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
IF IT IS "RATIONALLY BASED AND FREE FROM INVIDIOUS DISCRIMINATION." 
DANDRIDGE V. WILLIAMS, 397 U.S. 471, 487.  WHILE THE PRESENT CASE,
INVOLVING AS IT DOES A FEDERAL STATUTE, DOES NOT DIRECTLY IMPLICATE THE
FOURTEENTH AMENDMENT'S EQUAL PROTECTION CLAUSE, A CLASSIFICATION THAT
MEETS THE TEST ARTICULATED IN DANDRIDGE IS PERFORCE CONSISTENT WITH THE
DUE PROCESS REQUIREMENT OF THE FIFTH AMENDMENT.  CF. BOLLING V. SHARPE,
347 U.S. 497, 499. 

TO FIND A RATIONAL BASIS FOR THE CLASSIFICATION CREATED BY SEC. 224,
WE NEED GO NO FURTHER THAN THE REASONING OF CONGRESS AS REFLECTED IN
THE LEGISLATIVE HISTORY.  THE PREDECESSOR OF SEC. 224, ENACTED IN 1956
ALONG WITH THE AMENDMENTS FIRST ESTABLISHING THE FEDERAL DISABILITY
INSURANCE PROGRAM, REQUIRED A FULL OFFSET OF STATE OR FEDERAL /4/
WORKMEN'S COMPENSATION PAYMENTS AGAINST BENEFITS PAYABLE UNDER FEDERAL
DISABILITY INSURANCE.  70 STAT. 816.  IT IS SELF-EVIDENT THAT THE
OFFSET REFLECTED A JUDGMENT BY CONGRESS THAT THE WORKMEN'S COMPENSATION
AND DISABILITY INSURANCE PROGRAMS IN CERTAIN INSTANCES SERVED A COMMON
PURPOSE, AND THAT THE WORKMEN'S COMPENSATION PROGRAMS SHOULD TAKE
PRECEDENCE IN THE AREA OF OVERLAP.  THE PROVISION WAS REPEALED IN 1958,
72 STAT. 1025, BECAUSE CONGRESS BELIEVED THAT "THE DANGER THAT
DUPLICATION OF DISABILITY BENEFITS MIGHT PRODUCE UNDESIRABLE RESULTS
(WAS) NOT OF SUFFICIENT IMPORTANCE TO JUSTIFY REDUCTION OF THE SOCIAL
SECURITY DISABILITY BENEFITS."  H. R. REP. NO. 2288, 85TH CONG., 2D
SESS., 13. 

IN RESPONSE TO RENEWED CRITICISM OF THE OVERLAP BETWEEN THE
WORKMEN'S COMPENSATION AND THE SOCIAL SECURITY DISABILITY INSURANCE
PROGRAMS, CONGRESS RE-EXAMINED THE PROBLEM IN 1965.  DATA SUBMITTED TO
THE LEGISLATIVE COMMITTEES SHOWED THAT IN 35 OF THE 50 STATES, A
TYPICAL WORKER INJURED IN THE COURSE OF HIS EMPLOYMENT AND ELIGIBLE FOR
BOTH STATE AND FEDERAL BENEFITS RECEIVED COMPENSATION FOR HIS
DISABILITY IN EXCESS OF HIS TAKE-HOME PAY PRIOR TO THE DISABILITY. 
HEARINGS ON H.R. 6675 BEFORE THE SENATE COMMITTEE ON FINANCE, 89TH
CONG., 1ST SESS., PT. 2, P. 904.  IT WAS STRONGLY URGED THAT THIS
SITUATION REDUCED THE INCENTIVE OF THE WORKER TO RETURN TO THE JOB, AND
IMPEDED THE REHABILITATIVE EFFORTS OF THE STATE PROGRAMS.  FURTHERMORE,
IT WAS ANTICIPATED THAT A PERPETUATION OF THE DUPLICATION IN BENEFITS
MIGHT LEAD TO THE EROSION OF THE WORKMEN'S COMPENSATION PROGRAMS.  /5/
THE LEGISLATIVE RESPONSE WAS SEC. 224, WHICH, BY LIMITING TOTAL STATE
AND FEDERAL BENEFITS TO 80% OF THE EMPLOYEE'S AVERAGE EARNINGS PRIOR TO
THE DISABILITY, REDUCED THE DUPLICATION INHERENT IN THE PROGRAMS AND AT
THE SAME TIME ALLOWED A SUPPLEMENT TO WORKMEN'S COMPENSATION WHERE THE
STATE PAYMENTS WERE INADEQUATE. 

THE DISTRICT COURT APPARENTLY ASSUMED THAT THE ONLY BASIS FOR THE
CLASSIFICATION ESTABLISHED BY SEC. 224 LAY IN THE CHARACTERIZATION OF
WORKMEN'S COMPENSATION AS A "PUBLIC BENEFIT."  BECAUSE THE STATE
PROGRAM WAS FINANCED BY EMPLOYER CONTRIBUTIONS RATHER THAN BY TAXES,
THE COURT HELD THAT THE "PUBLIC" CHARACTERIZATION AFFORDED NO RATIONAL
BASIS TO DISTINGUISH WORKMEN'S COMPENSATION FROM PRIVATE INSURANCE.  WE
AGREE THAT A STATUTORY DISCRIMINATION BETWEEN TWO LIKE CLASSES CANNOT
BE RATIONALIZED BY ASSIGNING THEM DIFFERENT LABELS, BUT NEITHER CAN TWO
UNLIKE CLASSES BE MADE INDISTINGUISHABLE BY ATTACHING TO THEM A COMMON
LABEL.  THE ORIGINAL PURPOSE OF STATE WORKMEN'S COMPENSATION LAWS WAS
TO SATISFY A NEED INADEQUATELY MET BY PRIVATE INSURANCE OR TORT CLAIM
AWARDS.  CONGRESS COULD RATIONALLY CONCLUDE THAT THIS NEED SHOULD
CONTINUE TO BE MET PRIMARILY BY THE STATES, AND THAT A FEDERAL PROGRAM
THAT BEGAN TO DUPLICATE THE EFFORTS OF THE STATES MIGHT LEAD TO THE
GRADUAL WEAKENING OR ATROPHY OF THE STATE PROGRAMS. 

WE HAVE NO OCCASION, WITHIN OUR LIMITED FUNCTION UNDER THE
CONSTITUTION, TO CONSIDER WHETHER THE LEGITIMATE PURPOSES OF CONGRESS
MIGHT HAVE BEEN BETTER SERVED BY APPLYING THE SAME OFFSET TO RECIPIENTS
OF PRIVATE INSURANCE, OR TO JUDGE FOR OURSELVES WHETHER THE
APPREHENSIONS OF CONGRESS WERE JUSTIFIED BY THE FACTS.  IF THE GOALS
SOUGHT ARE LEGITIMATE, AND THE CLASSIFICATION ADOPTED IS RATIONALLY
RELATED TO THE ACHIEVEMENT OF THOSE GOALS, THEN THE ACTION OF CONGRESS
IS NOT SO ARBITRARY AS TO VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

THE JUDGMENT IS

              REVERSED. 

/1/  SECTION 224 PROVIDES, IN PERTINENT PART: 

"(A) IF FOR ANY MONTH PRIOR TO THE MONTH IN WHICH AN INDIVIDUAL
ATTAINS THE AGE OF 62-- 

"(1) SUCH INDIVIDUAL IS ENTITLED FOR SUCH MONTH, UNDER A WORKMEN'S
COMPENSATION LAW OR PLAN OF THE UNITED STATES OR A STATE, TO PERIODIC
BENEFITS FOR A TOTAL OR PARTIAL DISABILITY (WHETHER OR NOT PERMANENT),
AND THE SECRETARY HAS, IN A PRIOR MONTH, RECEIVED NOTICE OF SUCH
ENTITLEMENT FOR SUCH MONTH, 

"THE TOTAL OF HIS BENEFITS UNDER SECTION 423 OF THIS TITLE FOR SUCH
MONTH AND OF ANY BENEFITS UNDER SECTION 402 OF THIS TITLE FOR SUCH
MONTH BASED ON HIS WAGES AND SELF-EMPLOYMENT INCOME SHALL BE REDUCED
(BUT NOT BELOW ZERO) BY THE AMOUNT BY WHICH THE SUM OF-- 

"(3) SUCH TOTAL OF BENEFITS UNDER SECTIONS 423 AND 402 OF THIS TITLE
FOR SUCH MONTH, AND 

"(4) SUCH PERIODIC BENEFITS PAYABLE (AND ACTUALLY PAID) FOR SUCH
MONTH TO SUCH INDIVIDUAL UNDER THE WORKMEN'S COMPENSATION LAW OR PLAN,
"EXCEEDS THE HIGHER OF-- 

"(5) 80 PERCENTUM OF HIS 'AVERAGE CURRENT EARNINGS,' . . .

        .   .          .          . 

"FOR PURPOSES OF CLAUSE (5), AN INDIVIDUAL'S AVERAGE CURRENT
EARNINGS MEANS THE LARGER OF (A) THE AVERAGE MONTHLY WAGE USED FOR
PURPOSES OF COMPUTING HIS BENEFITS UNDER SECTION 423 OF THIS TITLE, OR
(B) ONE-SIXTIETH OF THE TOTAL OF HIS WAGES AND SELF-EMPLOYMENT INCOME
(COMPUTED WITHOUT REGARD TO THE LIMITATIONS SPECIFIED IN SECTIONS
409(A) AND 411(B)(1) OF THIS TITLE) FOR THE FIVE CONSECUTIVE CALENDAR
YEARS AFTER 1950 FOR WHICH SUCH WAGES AND SELF-EMPLOYMENT INCOME WERE
HIGHEST . . . . " 42 U.S.C. 424AA). 

/2/  E.G., GAMBILL V. FINCH, 309 F.SUPP.  1 (ED TENN. 1970); LOFTY
V. COHEN, 325 F.SUPP.  285, AFF'D SUB NOM. LOFTY V. RICHARDSON, 440
F.2D 1144 (CA6 1971); BARTLEY V. FINCH, 311 F.SUPP.  876 (ED KY. 1970);
BAILEY V. FINCH, CIV. NO. 32816, ED MICH., MAY 26, 1970, AFF'D SUB NOM.
BENJAMIN V. RICHARDSON, NO. 20,714, CA6, APR. 29, 1971; GOOCH V. FINCH,
CIV. NO. 6840, SD OHIO, JULY 13, 1970; RODATZ V. FINCH, CIV. NO.69-170,
ED ILL., SEPT. 4, 1970, AFF'D SUB NOM. RODATZ V. RICHARDSON (CA7
1971). 

/3/  "ANY PARTY MAY APPEAL TO THE SUPREME COURT FROM AN
INTERLOCUTORY OR FINAL JUDGMENT, DECREE OR ORDER OF ANY COURT OF THE
UNITED STATES . . . , HOLDING AN ACT OF CONGRESS UNCONSTITUTIONAL IN
ANY CIVIL ACTION, SUIT, OR PROCEEDING TO WHICH THE UNITED STATES OR ANY
OF ITS AGENCIES, OR ANY OFFICER OR EMPLOYEE THEREOF, AS SUCH OFFICER OR
EMPLOYEE, IS A PARTY." 

/4/  THE PRIMARY FEDERAL WORKMEN'S COMPENSATION PROGRAMS ARE THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 44 STAT. 1424, 33
U.S.C. 901 ET SEQ., APPLICABLE TO EMPLOYEES IN THE DISTRICT OF COLUMBIA
AND IN MARITIME-RELATED OCCUPATIONS, AND THE FEDERAL EMPLOYEES'
COMPENSATION ACT, 80 STAT. 532, 5 U.S.C. 8101 ET SEQ., APPLICABLE TO
EMPLOYEES OF THE FEDERAL GOVERNMENT.  THE OVERWHELMING MAJORITY OF
WORKERS IN THE UNITED STATES ARE COVERED BY STATE RATHER THAN FEDERAL
PROGRAMS, AND THUS WE MAY REFER GENERALLY TO WORKMEN'S COMPENSATION AS
A PROGRAM OF THE STATES. 

/5/  THE SENATE COMMITTEE ON FINANCE, WITH WHICH THE 1965 AMENDMENT
ORIGINATED, TOOK NOTE OF "THE CONCERN THAT HAS BEEN EXPRESSED BY MANY
WITNESSES IN THE HEARINGS ABOUT THE PAYMENT OF DISABILITY BENEFITS
CONCURRENTLY WITH BENEFITS PAYABLE UNDER STATE WORKMEN'S COMPENSATION
PROGRAMS."  S. REP. NO. 404, 89TH CONG., 1ST SESS., PT. 1, P. 100. 
TESTIMONY CONCERNING THE ANTICIPATED EFFECTS OF DUPLICATION UPON THE
FUTURE OF THE STATE PROGRAMS APPEARS IN HEARINGS ON H.R. 6675 BEFORE
THE SENATE COMMITTEE ON FINANCE, 89TH CONG., 1ST SESS., PT. 1, PP. 252,
259, 366, PT. 2, PP. 540 738-740, 892-897, 949-954, 990. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT.  THE STATUTORY
CLASSIFICATION UPHELD TODAY IS NOT "RATIONALLY BASED AND FREE FROM
INVIDIOUS DISCRIMINATION."  DANDRIDGE V. WILLIAMS, 397 U.S. 471, 487. 
IT IS, IN MY VIEW, VIOLATIVE OF THE FEDERAL GOVERNMENT'S OBLIGATION
UNDER THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE TO GUARANTEE TO ALL
CITIZENS EQUAL PROTECTION OF THE LAWS.  BOLLING V. SHARPE, 347 U.S.
497. 

ELIGIBILITY FOR SOCIAL SECURITY DISABILITY BENEFITS IS PREMISED UPON
A WORKER'S HAVING ATTAINED "INSURED" STATUS IN THE COURSE OF AN
EMPLOYMENT "COVERED" BY THE ACT.  IT IS UNDISPUTED THAT RAYMOND
BELCHER, AND THROUGH HIM HIS WIFE AND TWO MINOR CHILDREN, HAD SO
QUALIFIED IN 1968 WHEN HE BROKE HIS NECK WHILE EMPLOYED BY THE
POCAHONTAS FUEL CO. IN LYNCO, WEST VIRGINIA.  INDEED, HIS APPLICATION
FOR SUCH BENEFITS HAS BEEN APPROVED, AND THE BENEFITS AUTHORIZED AND
PAID. 

BENEFITS BE SUBSTANTIALLY REDUCED SOLELY BECAUSE BELCHER ALSO RECEIVES
STATE WORKMEN'S COMPENSATION PAYMENTS.  IT IS SAID THAT THE DUPLICATION
OF BENEFITS IMPEDES REHABILITATION, AND MAY LEAD TO A CUTTING BACK OF
STATE WORKMEN'S COMPENSATION PROGRAMS.  ANTE, AT 83. 

THE REHABILITATION GOAL DOES NOT EXPLAIN THE SPECIAL TREATMENT GIVEN
TO WORKMEN'S COMPENSATION BENEFICIARIES.  THERE ARE MANY OTHER
IMPORTANT PROGRAMS, BOTH PUBLIC AND PRIVATE, WHICH CONTAIN PROVISIONS
FOR DISABILITY PAYMENTS AFFECTING A SUBSTANTIAL PORTION OF THE WORK
FORCE, AND WHICH DO NOT REQUIRE AN OFFSET UNDER THE SOCIAL SECURITY
ACT. 

THUS, HAD BELCHER'S SUPPLEMENTAL DISABILITY PAYMENT COME FROM A
VETERANS' ADMINISTRATION PROGRAM, /1/  A CIVIL SERVICE RETIREMENT ACT
/2/  OR RAILROAD RETIREMENT ACT /3/  ANNUITY, A PRIVATE DISABILITY
INSURANCE POLICY, /4/  A SELF-INSURER, /5/  A VOLUNTARY WAGE
CONTINUATION PLAN, OR THE PROCEEDS IN AN ACTION IN TORT ARISING FROM
THE DISABLING INJURY, THERE WOULD HAVE BEEN NO REDUCTION IN HIS SOCIAL
SECURITY BENEFITS.  THE OFFSET UNDER SEC. 224 APPLIES ONLY TO FEDERAL
SOCIAL SECURITY DISABILITY BENEFICIARIES ALSO RECEIVING WORKMEN'S
COMPENSATION PAYMENTS, A GROUP WHICH IN 1965 TOTALED ONLY 1.4% OF ALL
SOCIAL SECURITY DISABILITY BENEFICIARIES.  /6/  YET, OF THE 849,000
DISABLED WORKERS WHO IN 1965 RECEIVED SOCIAL SECURITY DISABILITY
BENEFITS, /7/  OVER SIXTEEN PERCENT ALSO RECEIVED OVERLAPPING VETERAN'S
BENEFITS, /8/  AND ALMOST FOURTEEN PERCENT RECEIVED BENEFITS FROM
PRIVATE INSURANCE MAINTAINED UNDER THE AUSPICES OF AN EMPLOYER OR A
UNION.  /9/  CONGRESS IS, OF COURSE, NOT REQUIRED TO ADDRESS ITSELF TO
ALL ASPECTS OF A SOCIAL PROBLEM IN ITS LEGISLATION.  IT MUST, HOWEVER,
JUSTIFY THE DISTINCTIONS IT DRAWS BETWEEN PEOPLE OTHERWISE SIMILARLY
SITUATED.  REHABILITATION INCENTIVES ARE NOT A RATIONAL JUSTIFICATION
FOR THE DISCRIMINATION WORKED BY SEC. 224.  /10/  IF IT IS AT ALL
RATIONAL TO ARGUE THAT DUPLICATING PAYMENTS "IMPEDE REHABILITATION,"
THE ARGUMENT MUST APPLY TO ALL SUCH PAYMENTS REGARDLESS OF THEIR
SOURCE.  THE NATURE OF THE SUPPLEMENTAL BENEFIT HAS NO RELATION TO A
WORKER'S INCENTIVE TO RETURN TO WORK. 

NOR IS SEC. 224 DESIGNED TO STEM A POSSIBLE "EROSION" OF STATE
WORKMEN'S COMPENSATION PLANS.  AS MR. JUSTICE MARSHALL POINTS OUT,
POST, AT 94, SEC. 224 ITSELF PROVIDES THAT THERE SHALL BE NO REDUCTION
OF FEDERAL SOCIAL SECURITY BENEFITS WITH RESPECT TO THOSE STATE
WORKMEN'S COMPENSATION PLANS WHICH THEMSELVES OFFSET FEDERAL SOCIAL
SECURITY BENEFITS AGAINST STATE PAYMENTS.  THUS, THE STATUTE ENCOURAGES
STATES CONCERNED ABOUT OVERCOMPENSATION OF DISABLED WORKERS TO CUT BACK
ON THEIR OWN PROGRAMS.  BUT THE "RATIONAL BASIS" DISCERNED BY THE
MAJORITY REQUIRES THE STATUTE TO HAVE PRECISELY THE OPPOSITE PURPOSE. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

/1/  IN FISCAL 1970, OVER 2,000,000 VETERANS RECEIVED COMPENSATION
FOR SERVICE-CONNECTED DISABILITIES UNDER STATUTES ADMINISTERED BY
VETERANS' ADMINISTRATION.  STATISTICAL ABSTRACT OF THE UNITED STATES
264 (1971) (HEREINAFTER CITED AS STATISTICAL ABSTRACT).  SEE GENERALLY
38 U.S.C. 301 ET SEQ.  BENEFITS ARE ALSO PROVIDED TO CERTAIN VETERANS
FOR NON-SERVICE-CONNECTED DISABILITIES.  SEE GENERALLY 38 U.S.C. 501 ET
SEQ. IN 1967, TOTAL DISABILITY BENEFITS FROM ALL VETERANS'
ADMINISTRATION PROGRAMS AMOUNTED TO $3,197,906,000.  BERKOWITZ &
JOHNSON, TOWARDS AN ECONOMICS OF DISABILITY:  THE MAGNITUDE AND
STRUCTURE OF TRANSFER AND MEDICAL COSTS, 5 J. HUMAN RESOURCES 271, 282
(1970) (HEREINAFTER CITED AS ECONOMICS OF DISABILITY).  RAYMOND BELCHER
INDICATED ON HIS APPLICATION FOR SOCIAL SECURITY DISABILITY BENEFITS
THAT HE SERVED FOR THREE YEARS DURING WORLD WAR II.  TRANSCRIPT OF
HEARINGS BEFORE APPEALS COUNCIL 37.  THE RECORD IS SILENT, HOWEVER, AS
TO HIS POTENTIAL ELIGIBILITY FOR NON-SERVICE-CONNECTED VETERAN'S
BENEFITS. 

/2/  EMPLOYEES COVERED BY THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C.
8301 ET SEQ., ARE ENTITLED TO A DISABILITY ANNUITY AFTER FIVE YEARS OF
CIVILIAN SERVICE.  ID.. 8337.  IN FISCAL 1970, THERE WERE 184,000
DISABLED ANNUITANTS.  STATISTICAL ABSTRACT 284. 

/3/  TITLE 45 U.S.C. 228A ET SEQ. PROVIDES DISABILITY BENEFITS FOR
RAILROAD WORKERS WITH 10 OR MORE YEARS OF COVERED SERVICE.  COVERED
EMPLOYMENT UNDER THIS ACT AND THE CIVIL SERVICE RETIREMENT ACT IS
EXCLUDED FROM COVERAGE UNDER THE SOCIAL SECURITY ACT.  IF, HOWEVER, A
WORKER'S EMPLOYMENT HISTORY SEPARATELY QUALIFIES HIM FOR DUAL COVERAGE,
SUPPLEMENTAL PAYMENTS UNDER NEITHER OF THESE ACTS RESULTS IN AN OFFSET
OF SOCIAL SECURITY DISABILITY PAYMENTS.  HEW PUBLICATION, SOCIAL
SECURITY PROGRAMS IN THE UNITED STATES 46, 108 (1968) (HEREINAFTER
CITED AS PROGRAMS). 

/4/  PARTICIPATION IN WEST VIRGINIA'S STATE WORKMEN'S COMPENSATION
FUND IS OPTIONAL WITH THE EMPLOYER.  W.VA. CODE ANN. SECS. 23-2-1, 23-2
8 (1970).  AN EMPLOYER WHO DECLINES TO PARTICIPATE, HOWEVER, MUST
PROVIDE EQUIVALENT BENEFITS THROUGH PRIVATE INSURANCE OR AS A SELF
INSURER.  ID., AT SEC. 23-2-9.  HAD THE POCAHONTAS FUEL CO. ELECTED TO
PAY PREMIUMS TO A PRIVATE CARRIER RATHER THAN TO THE STATE FUND-- A
DECISION OVER WHICH MR. BELCHER PRESUMABLY HAD NO CONTROL OTHER THAN
THAT WHICH MIGHT BE EXERTED THROUGH THE COLLECTIVE-BARGAINING PROCESS
THE PRIVATE INSURANCE BENEFITS WOULD NOT HAVE BEEN OFFSET UNDER SEC.
224.  OVER 26,000,000 EMPLOYEES ARE COVERED BY SOME SORT OF PRIVATE
INSURANCE AMOUNTED TO 1.3 BILLION DOLLARS.  ECONOMICS OF DISABILITY
278.  THIS FIGURE ALONE EXCEEDED THE TOTAL OF ALL BENEFITS PAID BY
WORKMEN'S COMPENSATION PROGRAMS FOR THAT YEAR.  IBID. 

/5/  WERE MR. BELCHER'S EMPLOYER LARGE ENOUGH, IT MIGHT HAVE
DETERMINED TO BECOME A SELF-INSURER WITH RESPECT TO EMPLOYEE DISABILITY
CLAIMS.  DISABILITY PAYMENTS FROM SELF-INSURERS WERE REQUIRED BY STATE
LAW TO BE AT LEAST EQUIVALENT TO BENEFITS AVAILABLE THROUGH THE STATE
FUND, N. 3, SUPRA, AND THEY WOULD ALSO NOT BE OFFSET UNDER SEC. 224. 

IN 1969, EMPLOYERS WHO WERE COVERED BY PRIVATE CARRIERS AND WHO WERE
SELF-INSURERS PAID A COMBINED TOTAL OF $2,008,000,000 IN BENEFITS. 
STATES AND FEDERAL WORKMEN'S COMPENSATION FUNDS PAID ONLY $604,000,000
IN BENEFITS.  STATISTICAL ABSTRACT 289. 

/6/  1966 SURVEY OF DISABLED ADULTS, OFFICE OF RESEARCH &
STATISTICS, SOCIAL SECURITY ADMINISTRATION, TABLE 5 (HEREINAFTER CITED
AS SURVEY).  THIS FIGURE WAS CONFIRMED DURING THE HEARINGS WHICH LED TO
THE ADOPTION OF SEC. 224 BY ANTHONY J. CELEBREZZE, THEN SECRETARY OF
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.  HEARINGS ON H.R.
6675; BEFORE THE SENATE COMMITTEE ON FINANCE, 89TH CONG., 1ST SESS.,
PT. 1, P. 152. 

/7/  SURVEY, TABLE 5. 

/8/  IBID. 

/9/  IBID. 

/10/  ASSUMING THE RATIONALITY OF REHABILITATION AS A GOAL WITH
RESPECT TO TEMPORARY DISABILITIES, THERE IS STILL NO JUSTIFICATION FOR
APPLYING AN OFFSET WITH RESPECT TO DISABILITIES CONCEDEDLY PERMANENT IN
NATURE.  NEVERTHELESS, THE STATUTE REQUIRES THIS TO BE DONE.  THE
RECORD DOES NOT REVEAL THE STATUS OF MR. BELCHER'S DISABILITY. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS,
DISSENTING. 

IN MY VIEW, THE OFFSET PROVISION OF SEC. 224 OF THE SOCIAL SECURITY
ACT, 42 U.S.C. 424A, 79 STAT. 406, CREATES AN UNLAWFUL DISCRIMINATION
UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

BEFORE THIS 53-YEAR-OLD APPELLEE BECAME DISABLED IN MARCH 1968, HE WAS
SUPPORTING HIS WIFE AND TWO CHILDREN ON TOTAL YEARLY EARNINGS OF
APPROXIMATELY $6,600.  ONCE DISABLED, HE COULD NOT WORK, BUT HE AND HIS
FAMILY WERE AWARDED FEDERAL SOCIAL SECURITY DISABILITY BENEFITS
TOTALING $329.70 PER MONTH.  /1/  BECAUSE HIS EMPLOYER HAD CHOSEN TO
SET UP A WORKMEN'S COMPENSATION FUND, APPELLEE ALSO BECAME ENTITLED TO
WORKMEN'S COMPENSATION BENEFITS TOTALING $203.60 PER MONTH.  THESE WERE
HIS ONLY FORMS OF DISABILITY COMPENSATION.  HAD APPELLEE BEEN ALLOWED
TO KEEP HIS INITIAL AWARD OF FEDERAL BENEFITS, HIS INCOME WOULD HAVE
TOTALED NEARLY $6,400 A YEAR, SOMEWHAT LESS THAN HE HAD EARNED BEFORE
HIS DISABILITY.  BUT BECAUSE OF THE OFFSET PROVISION OF SEC. 224,
APPELLEE'S MONTHLY FEDERAL PAYMENTS WERE REDUCED, SOLELY BECAUSE THE
SUPPLEMENT TO HIS FEDERAL BENEFITS WAS IN THE FORM OF STATE WORKMEN'S
COMPENSATION.  AS A RESULT, APPELLEE'S TOTAL YEARLY INCOME WAS REDUCED
TO $5,146.80. 

APPELLEE COMPLAINS THAT THE OFFSET PROVISION IS UNCONSTITUTIONAL
BECAUSE IT PLACES ITS SEVERE BURDEN ON A SINGLE CLASS OF DISABLED
PERSONS WITHOUT ADEQUATE JUSTIFICATION.  UNDER THE CHALLENGED OFFSET
PROVISION, FEDERAL SOCIAL SECURITY DISABILITY BENEFITS ARE REDUCED ONLY
FOR THOSE PERSONS WHOSE DISABILITY ENTITLES THEM TO WORKMEN'S
COMPENSATION.  OTHER PERSONS WHO RECEIVE OTHER KINDS OF DISABILITY
COMPENSATION-- FOR EXAMPLE, PRIVATE INSURANCE BENEFITS OR TORT DAMAGES-
ARE ALLOWED THE FULL AMOUNT OF FEDERAL SOCIAL SECURITY BENEFITS.  THE
QUESTION HERE IS WHETHER WORKMEN'S COMPENSATION BENEFICIARIES MAY BE
SINGLED OUT IN THIS WAY FOR A REDUCTION IN FEDERAL BENEFITS. 

STARTING FROM THE ASSUMPTIONS THAT FEDERAL SOCIAL SECURITY
INSURANCE, LIKE WELFARE ASSISTANCE, IS A "PUBLIC BENEFIT" IN WHICH THE
BENEFICIARIES HAVE NEITHER CONTRACT NOR PROPERTY INTERESTS, AND THAT
STATUTORY CLASSIFICATIONS AFFECTING THE BASIC NEEDS OF INDIVIDUALS ARE
VIEWED NO DIFFERENTLY UNDER THE CONSTITUTION FROM CLASSIFICATIONS IN
THE AREA OF BUSINESS REGULATION, THE COURT CONCLUDES THAT THE
CLASSIFICATION HERE HAS A REASONABLE BASIS AND IS CONSISTENT WITH THE
FIFTH AMENDMENT.  TO REACH TODAY'S RESULT, THE COURT REVITALIZES
FLEMMING V. NESTOR, 363 U.S. 603 (1960), /2/  AND EXTENDS THE DOCTRINE
OF DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), TO STATUTORY
CLASSIFICATIONS UNDER FEDERAL LAW.  /3/  THUS, THE COURT TODAY HOLDS
THAT CONGRESS CAN TAKE SOCIAL SECURITY BENEFITS FROM A DISABLED WORKER
AS LONG AS IT DOES NOT BEHAVE IN AN "ARBITRARY" WAY; CLASSIFICATIONS IN
THE FEDERAL SOCIAL SECURITY LAW ARE CONSISTENT WITH THE FIFTH AMENDMENT
IF THEY ARE "RATIONALLY BASED AND FREE FROM INVIDIOUS DISCRIMINATION." 

IN OPPOSING THIS COURSE, I ADHERE TO MY DISSENTING VIEWS IN
DANDRIDGE V. WILLIAMS.  I CONTINUE TO BELIEVE THAT THE "RATIONAL BASIS"
TEST USED BY THIS COURT IN REVIEWING BUSINESS REGULATION HAS NO PLACE
WHEN THE COURT REVIEWS LEGISLATION PROVIDING FUNDAMENTAL SERVICES OR
DISTRIBUTING GOVERNMENT FUNDS TO PROVIDE FOR BASIC HUMAN NEEDS.  IN
DECIDING WHETHER A GIVEN CLASSIFICATION IS CONSISTENT WITH THE
REQUIREMENTS OF THE FIFTH OR FOURTEENTH AMENDMENT, /4/  WE SHOULD LOOK
TO "THE CHARACTER OF THE CLASSIFICATION IN QUESTION, THE RELATIVE
IMPORTANCE TO INDIVIDUALS IN THE CLASS DISCRIMINATED AGAINST OF THE
GOVERNMENTAL BENEFITS THAT THEY DO NOT RECEIVE, AND THE ASSERTED STATE
(OR FEDERAL) INTERESTS IN SUPPORT OF THE CLASSIFICATION."  DANDRIDGE V.
WILLIAMS, SUPRA, AT 521 (MARSHALL, J., DISSENTING); CF. WILLIAMS V.
RHODES, 393 U.S. 23, 30 (1968).  UNDER THIS APPROACH, IT IS NECESSARY
TO CONSIDER MORE THAN THE CHARACTER OF THE CLASSIFICATION AND THE
GOVERNMENTAL INTERESTS IN SUPPORT OF THE CLASSIFICATION.  JUDGES SHOULD
NOT IGNORE WHAT EVERYONE KNOWS, NAMELY THAT LEGISLATION REGULATING
BUSINESS CANNOT BE EQUATED WITH LEGISLATION DEALING WITH DESTITUTE
DISABLED, OR ELDERLY INDIVIDUALS.  THUS, IN ASSESSING THE LAWFULNESS OF
THE SPECIAL DISADVANTAGES SUFFERED HERE BY WORKMEN'S COMPENSATION
BENEFICIARIES, THE COURT SHOULD CONSIDER THE INDIVIDUAL INTERESTS AT
STAKE.  FEDERAL DISABILITY PAYMENTS, EVEN WHEN SUPPLEMENTED BY OTHER
FORMS OF DISABILITY COMPENSATION, PROVIDE FAMILIES OF DISABLED PERSONS
WITH THE BASIC MEANS FOR GETTING BY.  I WOULD REQUIRE FAR MORE THAN A
MERE "RATIONAL BASIS" TO JUSTIFY A DISCRIMINATION THAT DEPRIVES
DISABLED PERSONS OF SUCH SUPPORT IN THEIR TIME OF NEED. 

IT IS UNNECESSARY TO ELABORATE FURTHER THE ANALYSIS REQUIRED BY THE
PRINCIPLES OF MY DANDRIDGE DISSENT.  FOR EVEN UNDER THE COURT'S
"RATIONAL BASIS" TEST, THE DISCRIMINATORY OFFSET PROVISION HERE CANNOT
BE SUSTAINED.  THERE SIMPLY IS NO REASONABLE BASIS FOR SINGLING OUT
RECIPIENTS OF WORKMEN'S COMPENSATION FOR A REDUCTION OF FEDERAL
BENEFITS, WHILE THOSE WHO RECEIVE OTHER KINDS OF DISABILITY
COMPENSATION ARE NOT SIMILARLY TREATED. 

THIS IS NOT TO SAY THAT AN OFFSET SCHEME IS INTRINSICALLY
IMPERMISSIBLE.  ARGUABLY, CONGRESS HAS AN INTEREST IN PAYING GREATER
BENEFITS TO PEOPLE WHO ARE RELYING COMPLETELY ON THE FEDERAL SOCIAL
SECURITY PROGRAM, AND LESSER BENEFITS TO PEOPLE WHO HAVE OTHER SOURCES
OF DISABILITY COMPENSATION.  BUT THE QUESTION HERE IS NOT WHETHER
CONGRESS HAS THE POWER TO PREVENT "DUPLICATIVE" PAYMENTS THAT MIGHT
EXCEED PREVIOUS TAKE-HOME PAY AND MIGHT THEREBY DISCOURAGE DISABLED
WORKERS FROM RETURNING TO WORK.  /5/  THE ISSUE IS WHETHER CONGRESS MAY
SINGLE OUT FOR THE PURPOSE OF APPLYING THE OFFSET ONLY THOSE WHO ARE
RECEIVING WORKMEN'S COMPENSATION, AND EXCLUDE THOSE WHO ARE RECEIVING
SIMILAR SUPPLEMENTAL DISABILITY COMPENSATION FROM OTHER SOURCES.  A
CONCERN ABOUT EXCESSIVE COMBINED BENEFITS AND "REHABILITATION" DOES NOT
EXPLAIN THAT DISTINCTION. 

WHAT, THEN, IS THE "RATIONAL BASIS" FOR THE DISFAVORED TREATMENT OF
PERSONS RECEIVING WORKMEN'S COMPENSATION?  THE MAJORITY, IN ITS
CONCLUSORY TREATMENT OF THIS QUESTION, APPEARS TO SAY THAT WORKMEN'S
COMPENSATION "SATISFIES) A NEED" WHICH IS SPECIAL; AND, CLAIMING TO
RELY ON "THE REASONING OF CONGRESS AS REFLECTED IN THE LEGISLATIVE
HISTORY," THE MAJORITY FINDS THAT CONGRESS "ANTICIPATED THAT A
PERPETUATION OF THE DUPLICATION IN BENEFITS MIGHT LEAD TO THE EROSION
OF THE WORKMEN'S COMPENSATION PROGRAMS."  I CANNOT ACCEPT THAT ARGUMENT
AS A JUSTIFICATION FOR THIS STATUTE.  THERE IS NOTHING IN THE SENATE,
HOUSE, OR CONFERENCE REPORTS INDICATING THAT THIS WAS THE BASIS FOR THE
LEGISLATION ACTUALLY PASSED.  /6/  AND I DO NOT THINK THAT THE ARGUMENT
IS IN FACT RATIONAL.  THE STATUTORY DISCRIMINATION EXCEEDS THE MAXIMUM
AMOUNT OF IRRATIONALITY AND ARBITRARINESS COUNTENANCED BY THE FIFTH
AMENDMENT. 

WORKMEN'S COMPENSATION PROGRAMS SERVE PRECISELY THE SAME FUNCTION AS
OTHER FORMS OF DISABILITY INSURANCE AND TORT DAMAGE SUITS.  THE
PAYMENTS ASSIST WORKERS IN THE SAME WAY, AND SATISFY THE SAME NEED. 
INDEED, IN APPELLEE'S HOME STATE OF WEST VIRGINIA, AS IN MOST STATES,
WORKMEN'S COMPENSATION IS BY STATUTE THE COMPLETE FUNCTIONAL EQUIVALENT
OF TORT LIABILITY, SINCE EMPLOYERS WHO PARTICIPATE IN WORKMEN'S
COMPENSATION CANNOT BE SUED FOR TORT DAMAGES BY DISABLED EMPLOYEES. 
W.VA. CODE ANN. SEC. 2-6.  MOREOVER, NO DISTINCTION CAN BE DRAWN ON THE
BASIS OF THE SOURCE OF THE PAYMENTS.  IN WEST VIRGINIA, AS IN MOST
STATES, WORKMEN'S COMPENSATION IS FINANCED PRIVATELY, JUST LIKE OTHER
FORMS OF INSURANCE AND LIKE TORT DAMAGES.  USUALLY THE BENEFITS ARE
PAID DIRECTLY BY THE EMPLOYER (AS A SELF-INSURER) OR BY THE EMPLOYER'S
INSURANCE CARRIERS (IN WHICH CASE THE EMPLOYER PAYS THE PREMIUMS).  SEE
3 A. LARSON, LAW OF WORKMEN'S COMPENSATION SEC. 92.10, P. 444 (1971);
W.VA. CODE ANN. SEC. 23-2-1 ET SEQ. I SEE NO BASIS FOR SINGLING OUT
WORKMEN'S COMPENSATION PROGRAMS FOR SPECIAL PROTECTION OR SOLICITUDE. 
MORE POINTEDLY, HOWEVER, IT DEFIES LOGIC TO CLAIM THAT SEC. 224 COULD
TO ANY EXTENT PROTECT OR ENCOURAGE WORKMEN'S COMPENSATION IN THE MANNER
SUGGESTED BY THE COURT.  IN SUPPORT OF ITS CLAIM THAT SEC. 224 MIGHT
DISCOURAGE THE EROSION OF WORKMEN'S COMPENSATION, THE APPELLANT RELIES
HEAVILY ON A STATEMENT MADE BY A REPRESENTATIVE OF THE COUNCIL OF STATE
CHAMBERS OF COMMERCE TO THE SENATE COMMITTEE ON FINANCE: 

     "A MATTER OF EQUAL CONCERN IS THE IMPACT OF FEDERAL DISABILITY

  PAYMENTS ON STATE WORKMEN'S COMPENSATION PROGRAMS.  LEGISLATIVE

  PROPOSALS HAVE BEEN OFFERED IN SEVERAL STATES (COLORADO, FLORIDA,

  MARYLAND, AND MINNESOTA) TO REDUCE WORKMEN'S COMPENSATION

  BENEFITS BY THE AMOUNT OF (SOCIAL SECURITY) DISABILITY BENEFITS

  PAYABLE TO A DISABLED WORKER.  IF OTHER STATES FOLLOW THIS

  DIRECTION . . . WE BELIEVE IT WILL BE ONLY A MATTER OF TIME UNTIL

  STATE WORKMEN'S COMPENSATION PROGRAMS ARE DESTROYED."  HEARINGS

  ON H.R. 6675 BEFORE THE SENATE COMMITTEE ON FINANCE, 89TH CONG.,

  1ST SESS., PT. 1, P. 259. 

IN ADDITION, THE GOVERNMENT REFERS TO THE TESTIMONY OF ANOTHER CHAMBER
OF COMMERCE REPRESENTATIVE: 

"ENCROACHMENT BY SOCIAL SECURITY IS HAMPERING EFFORTS TO IMPROVE THE
STATE WORKMEN'S COMPENSATION SYSTEMS WHERE IMPROVEMENTS ARE NEEDED. 
FACED WITH SHARPLY RISING COSTS AND THE DUPLICATION OF BENEFITS,
EMPLOYERS IN SEVERAL STATES HAVE SUPPORTED LEGISLATIVE PROPOSALS TO
REDUCE WORKMEN'S COMPENSATION BENEFITS BY THE AMOUNT OF SOCIAL SECURITY
DISABILITY BENEFITS."  ID., AT 252. 

I AM UNABLE TO SEE HOW SEC. 224 IS CONNECTED TO THIS ASSERTED
RATIONALE.  THE FEDERAL BENEFITS IF THE TOTAL OF THOSE BENEFITS AND THE
WORKMEN'S COMPENSATION BENEFITS EXCEEDS 80% OF "AVERAGE CURRENT
EARNINGS."  HOWEVER, FEDERAL BENEFITS MAY NOT BE REDUCED IF THE
WORKMEN'S COMPENSATION PLAN PROVIDES FOR A REDUCTION OF ITS BENEFITS IN
THE EVENT OF AN OVERLAP.  SEC. 224(D).  THUS, IF A STATE OR EMPLOYERS
IN THE STATE WANT TO SAVE MONEY, THE FEDERAL STATUTE INVITES THEM TO
REDUCE WORKMEN'S COMPENSATION BENEFITS BY MEANS OF AN OFFSET PROVISION
OF THEIR OWN.  I DO NOT SEE HOW IT IS POSSIBLE TO ARGUE THAT THE
FEDERAL STATUTE IS DESIGNED TO PREVENT STATES FROM ADOPTING THEIR OWN
OFFSET PROVISIONS.  IF ANYTHING, THE STATES ARE ENCOURAGED TO CUT BACK
ON THEIR PROGRAMS.  /7/ 

EVEN IF IT WERE POSSIBLE TO BELIEVE THAT THE CHALLENGED FEDERAL
OFFSET PROVISION MIGHT IN SOME WAY FORESTALL STATES AND EMPLOYERS FROM
CREATING OFFSET PROVISIONS IN THEIR WORKMEN'S COMPENSATION PROGRAMS, I
DO NOT SEE HOW STATE OFFSET PROVISIONS COULD TO ANY DEGREE "LEAD TO THE
GRADUAL WEAKENING OR ATROPHY OF (THOSE) PROGRAMS."  ANTE, AT 84.  /8/
HOW DO OFFSET PROVISIONS HURT A PROGRAM?  IT IS AS PREPOSTEROUS TO
SUGGEST THAT STATE OFFSET PROVISIONS COULD LEAD TO THE DESTRUCTION OF
WORKMEN'S COMPENSATION AS IT WOULD BE TO ARGUE THAT THE CURRENT FEDERAL
OFFSET PROVISION MIGHT DESTROY THE FEDERAL SOCIAL SECURITY PROGRAM. 
SUCH MANUFACTURED AND TOTALLY ILLUSORY CONCERNS CANNOT BE DEEMED
RATIONAL. 

THE PLAIN FACT IS THAT CONGRESS PASSED THIS OFFSET PROVISION BECAUSE
IT THOUGHT DISABLED PERSONS SHOULD NOT RECEIVE EXCESSIVE COMBINED
DISABILITY PAYMENTS.  PERHAPS BY OVERSIGHT, /9/  IT ARBITRARILY SINGLED
OUT WORKMEN'S COMPENSATION BENEFITS FROM THE UNIVERSE OF DISABILITY
COMPENSATIONS, AND REQUIRED THAT WORKMEN'S COMPENSATION, ALONE WAS TO
BE OFFSET AGAINST FEDERAL SOCIAL SECURITY.  IF THE MAJORITY'S "RATIONAL
BASIS" TEST IN FACT IS TO HAVE ANY MEANING, CONGRESS CANNOT BE
PERMITTED TO SINGLE OUT RECIPIENTS OF WORKMEN'S COMPENSATION FOR THIS
ADVERSE TREATMENT.  THE BURDEN OF REDUCED FEDERAL BENEFITS-- SO
DEVASTATING TO THE FAMILIES OF THE ONCE-WORKING POOR-CANNOT BE IMPOSED
ARBITRARILY UNDER THE FIFTH AMENDMENT.  IN MY VIEW, THAT HAS HAPPENED
HERE.  I DISSENT.  /10/ 

/1/  THE TEST FOR DISABILITY UNDER THE FEDERAL STATUTE IS A STERN
ONE.  WITH AN EXCEPTION FOR ELDERLY BLIND PEOPLE, DISABILITY MEANS
"INABILITY TO ENGAGE IN ANY SUBSTANTIAL GAINFUL ACTIVITY BY REASON OF
ANY MEDICALLY DETERMINABLE PHYSICAL OR MENTAL IMPAIRMENT WHICH CAN BE
EXPECTED TO RESULT IN DEATH OR WHICH HAS LASTED OR CAN BE EXPECTED TO
LAST FOR A CONTINUOUS PERIOD OF NOT LESS THAN 12 MONTHS . . . ."  42
U.S.C. 423(D)(1)(A). 

/2/  FLEMMING WAS A 5-4 DECISION UPHOLDING A FEDERAL STATUTE THAT
TERMINATED THE OLD-AGE BENEFITS OF THE FAMILY OF A FULLY ELIGIBLE
WORKER, BECAUSE HE WAS DEPORTED AS A FORMER MEMBER OF THE COMMUNIST
PARTY.  THE CASE HAS NOT MET WITH UNANIMOUS CRITICAL ACCLAIM.  SEE
REICH, THE NEW PROPERTY, 73 YALE L.J. 733, 768-771, 775 (1964). 
PREMATURELY, IT WOULD APPEAR, SOME SCHOLARS HAD PREDICTED ITS DEMISE. 
E.G., THE SUPREME COURT, 1969 TERM, 84 HARV.L.REV.  1, 103-104 (1970). 

/3/  IN DANDRIDGE, THE COURT HELD THAT A STATE'S MAXIMUM GRANT
REGULATION FOR WELFARE RECIPIENTS DID NOT UNCONSTITUTIONALLY
DISCRIMINATE BETWEEN CHILDREN IN LARGE AND SMALL FAMILIES.  THE
REGULATION WAS CHALLENGED UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT. 

/4/  I WOULD USE ESSENTIALLY THE SAME APPROACH WHEN STATUTORY
CLASSIFICATIONS ARE CHALLENGED UNDER EITHER AMENDMENT.  CF. BOLLING V.
SHARPE, 347 U.S. 497 (1954). 

/5/  THE OFFSET IDEA HAS HAD A ROCKY HISTORY.  AS THE MAJORITY
NOTES, A PRIOR OFFSET PROVISION WAS REPEALED IN 1958 BECAUSE CONGRESS
BELIEVED THAT "THE DANGER THAT DUPLICATION OF DISABILITY BENEFITS MIGHT
PRODUCE UNDESIRABLE RESULTS (WAS) NOT OF SUFFICIENT IMPORTANCE TO
JUSTIFY REDUCTION OF THE SOCIAL SECURITY DISABILITY BENEFITS."  H.R.
REP. NO. 2288, 85TH CONG., 2D SESS., 13.  THE PRESENT OFFSET PROVISION
WAS RESTORED TO THE ACT IN 1965.  IT WAS ESTIMATED AT THE TIME THAT NO
MORE THAN 2% OF THE FEDERAL SOCIAL SECURITY DISABILITY BENEFICIARIES
ALSO RECEIVED WORKMEN'S COMPENSATION.  HEARINGS ON H.R. 6675 BEFORE THE
SENATE COMMITTEE ON FINANCE, 89TH CONG., 1ST SESS., PT. 1, P. 152. 

IT IS PERHAPS PLAUSIBLE TO REASON THAT DUPLICATIVE BENEFITS MIGHT IN
SOME CIRCUMSTANCES DISCOURAGE REHABILITATION AND A RETURN TO WORK.  IT
IS WORTH NOTING, HOWEVER, THAT EVEN WITHOUT THE OFFSET PROVISION,
APPELLEE'S COMBINED BENEFITS WOULD NOT HAVE EXCEEDED HIS EARNINGS
BEFORE DISABILITY.  SEE SUPRA, AT 88. 

/6/  THE SOLE CONCERN EXPRESSED IN THESE DOCUMENTS IS THAT CONGRESS
SHOULD PREVENT "EXCESSIVE COMBINED BENEFITS."  S. REP. NO. 404, 89TH
CONG., 1ST SESS., PT. 1, P. 100; SEE ALSO H.R. CONF. REP. NO. 682, 89TH
CONG., 1ST SESS.; H.R. REP. NO. 213, 89TH CONG., 1ST SESS. 

/7/  INDEED, WHERE THEY ARE FREE TO DO SO, SEE 3 A. LARSON, LAW OF
WORKMEN'S COMPENSATION 522, APPENDIX A, TABLE 7 (1971); W.VA. CODE ANN.
SECS. 23-2-1, 23-2-8, INDIVIDUAL WORKERS ARE ENCOURAGED TO OPT OUT OF
WORKMEN'S COMPENSATION AND PURCHASE PRIVATE DISABILITY INSURANCE. 

/8/  IT IS WORTH NOTING THAT PAYMENTS FOR TOTAL AND PERMANENT
DISABILITY ARE ONLY A SMALL PART OF THE TOTAL SCHEME OF COMPENSATION OF
ANY WORKMEN'S COMPENSATION ACT.  BENEFITS ARE ALSO PROVIDED FOR MEDICAL
AND HOSPITAL EXPENSES, FUNERAL EXPENSES, REHABILITATION, SPECIFIC
SCHEDULED LOSSES, TEMPORARY DISABILITY, AND OTHER FORMS OF LOSS, SEE,
E.G., W.VA. CODE ANN. SECS. 23-4-3, 23-4-4, 23-4-6, ALL OF WHICH ARE
UNAFFECTED BY SOCIAL SECURITY. 

/9/  SECRETARY OF HEW CELEBREZZE OPPOSED THE PRESENT OFFSET
PROVISION, ARGUING THAT ANY CHANGE SHOULD AWAIT A MORE THOROUGH STUDY
OF THE OVERLAP PROBLEM.  HEARINGS ON H.R.6675 BEFORE THE SENATE
COMMITTEE ON FINANCE, 89TH CONG., 1ST SESS., PT. 1, P. 146.  THE
COMMITTEE CHOSE NOT TO WAIT. 

/10/  SINCE, IN MY VIEW, THE PRESENT DISCRIMINATORY OFFSET PROVISION
CANNOT STAND, THERE IS NO NEED TO DECIDE FINALLY WHETHER CONGRESS HAS
THE POWER TO PASS AN OFFSET PROVISION THAT WOULD QUALIFY AN ALREADY
ACCRUED INTEREST IN SOCIAL SECURITY BENEFITS.  WHATEVER MIGHT BE SAID
ABOUT THE CHARACTERIZATION OF WELFARE ASSISTANCE AS "PROPERTY," SEE
GOLDBERG V. KELLY, 397 U.S. 254, 262 N. 8 (1970), SURELY A WORKER WHO
IS FORCED TO PAY A SOCIAL SECURITY TAX ON HIS EARNINGS HAS A CLEARLY
COGNIZABLE CONTRACT INTEREST IN THE BENEFITS THAT JUSTIFY THE TAX.  THE
CHARACTERIZATION OF THIS INTEREST AS "NONCONTRACTUAL" IN FLEMMING V.
NESTOR, 363 U.S. 603, 611 (1960), IS, IN MY VIEW, INCORRECT.  THE
ANALOGY TO AN ANNUITY OR INSURANCE CONTRACT, REJECTED THERE, SEEMS
APT.  ID., AT 624 (BLACK, J., DISSENTING).  SEE ALSO REICH, THE NEW
PROPERTY, SUPRA.  OF COURSE, AS THE COURT SAYS, CONGRESS MAY "FIX THE
LEVELS OF BENEFITS UNDER THE ACT OR THE CONDITIONS UPON WHICH THEY MAY
BE PAID."  BUT ONCE CONGRESS HAS FIXED THAT LEVEL AND THOSE CONDITIONS,
AND A WORKER HAS CONTRIBUTED HIS TAX IN ACCORD WITH THE LAW, MAY
CONGRESS UNILATERALLY MODIFY THE BENEFITS IN A WAY THAT DEFEATS THE
EXPECTATIONS OF BENEFICIARIES AND PROSPECTIVE BENEFICIARIES?  AT THE
LEAST, IT WOULD SEEM THAT AFTER A WORKER HAS CONTRIBUTED THE TAX FOR 20
QUARTERS, 42 U.S.C. 423(C)(1), AND HIS INTEREST IN THE BENEFITS HAS
FULLY ACCRUED, CONGRESS MAY NOT UNILATERALLY QUALIFY THAT INTEREST BY
INTRODUCING AN OFFSET PROVISION NOT PREVIOUSLY CONTEMPLATED BY THE
PARTIES. 

RICHARD B. STONE ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL GRAY,
AND KATHRYN H. BALDWIN. 

JOHN CHARLES HARRIS ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLEE. 

WILLIAM E. MILLER AND RICHARD A. WHITING FILED A BRIEF FOR THE
AMERICAN MUTUAL INSURANCE ALLIANCE ET AL. AS AMICI CURIAE URGING
REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY EDWARD J.
KIONKA FOR THE AMERICAN TRIAL LAWYERS ASSOCIATION, AND BY EDWARD L.
CAREY, HARRISON COMBS, AND M. E. BOIARSKY FOR UNITED MINE WORKERS OF
AMERICA. 
..END :






SLAYTON V. SMITH, 404 U.S. 53 


       SLAYTON, PENITENTIARY SUPERINTENDENT V. SMITH

     ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FOURTH CIRCUIT

    NO. 70-108.  DECIDED NOVEMBER 16, 1971 


COURT OF APPEALS, HAVING DETERMINED THAT STATE REMEDIES HAD NOT BEEN
EXHAUSTED BY RESPONDENT, WHOSE HABEAS CORPUS PETITION ALLEGED THAT HE
HAD BEEN TRIED AND SENTENCED BY A SENILE STATE JUDGE, SHOULD NOT HAVE
MADE IMPLICATIONS AS IT DID AS TO MERITS OF THE DELICATE SUBJECT
INVOLVED AND, ABSENT SPECIAL CIRCUMSTANCES, SHOULD NOT HAVE ORDERED THE
DISTRICT COURT, WHICH HAD DISMISSED THE PETITION, TO RETAIN THE CASE ON
ITS DOCKET UNTIL RESPONDENT HAD SOUGHT STATE COURT RELIEF. 

CERTIORARI GRANTED; 435 F.2D 453, VACATED AND REMANDED. 

PER CURIAM. 

RESPONDENT'S PETITION FOR HABEAS CORPUS ALLEGED, AMONG OTHER THINGS,
THAT HE HAD BEEN TRIED AND SENTENCED IN THE STATE COURTS BY A SENILE
JUDGE.  ON APPEAL FROM THE DISTRICT COURT'S DISMISSAL OF THE PETITION
WITHOUT A HEARING, THE COURT OF APPEALS FOR THE FOURTH CIRCUIT NOTED
THAT STATE REMEDIES HAD NOT BEEN EXHAUSTED, EXPRESSED ITS CONFIDENCE
THAT "IF THE CONTENTION IS SQUARELY RAISED, THE STATE COURTS WILL BE
WILLING TO AFFORD THE PETITIONER A REASONABLE OPPORTUNITY TO PROVE HIS
CASE," AND OBSERVED THAT A CLAIM OF JUDICIAL SENILITY RAISED A MOST
"SENSITIVE ISSUE OF STATE ADMINISTRATION OF STATE CRIMINAL JUSTICE." 
435 F.2D 453, 460 (1970).  DESPITE THESE JUDICIOUS OBSERVATIONS
UNDERSCORING THE FACT THAT THIS CASE WAS NOT RIPE FOR FEDERAL
COGNIZANCE, THE COURT OF APPEALS VACATED THE DISTRICT COURT'S JUDGMENT
AND REMANDED FOR FURTHER PROCEEDINGS WITH INSTRUCTIONS TO STAY THE CASE
UNTIL RESPONDENT HAD SOUGHT RELIEF IN THE VIRGINIA STATE COURTS. 

THE COURT OF APPEALS' FORM OF "ABSTENTION" IS PERHAPS TECHNICALLY
CONSISTENT WITH THE STATUTORY PROHIBITION AGAINST ISSUING THE WRIT
WHERE STATE REMEDIES HAVE NOT BEEN EXHAUSTED.  28 U.S.C. 2254.  BUT,
HAVING DETERMINED THAT STATE REMEDIES HAD NOT BEEN EXHAUSTED, THE COURT
OF APPEALS WOULD HAVE BETTER SERVED THE POLICY OF THE STATUTE HAD IT
AVOIDED ANY IMPLICATION AS TO THE MERITS OF SO DELICATE A SUBJECT. 
FURTHER, ABSENT SPECIAL CIRCUMSTANCES, CF. NELSON V. GEORGE, 399 U.S.
224 (1970), WADE V. WILSON, 396 U.S. 282 (1970), RATHER THAN ORDERING
RETENTION OF THE CASE ON THE DISTRICT COURT'S DOCKET, THE COURT OF
APPEALS SHOULD SIMPLY HAVE VACATED THE JUDGMENT OF THE LOWER COURT AND
DIRECTED DISMISSAL OF THE PETITION FOR FAILURE TO EXHAUST STATE
REMEDIES. 

THE MOTION OF RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND
THE PETITION FOR WRIT OF CERTIORARI ARE GRANTED, THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED, AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

           SO ORDERED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART JOINS, BELIEVING
THAT THE COURT OF APPEALS HAS OBSERVED ALL THE PROPRIETIES AS WELL AS
THE REQUIREMENTS OF THE ACT, WOULD AFFIRM ITS JUDGMENT. 
..END :













HARRIS V. WASHINGTON, 404 U.S. 55 


       HARRIS V. WASHINGTON ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

WASHINGTON

        NO. 70-5213.  DECIDED NOVEMBER 16, 1971 


THE PRINCIPLE ANNOUNCED IN ASHE V. SWENSON, 397 U.S. 436, WHICH BARS
A SECOND CRIMINAL TRIAL WHERE THE DEFENDANT HAS BEEN ACQUITTED IN A
PREVIOUS TRIAL INVOLVING THE SAME ULTIMATE FACTUAL ISSUE, APPLIES
IRRESPECTIVE OF WHETHER THE JURY IN THE FIRST TRIAL CONSIDERED ALL
RELEVANT EVIDENCE, AND IRRESPECTIVE OF THE STATE'S GOOD FAITH IN
BRINGING SUCCESSIVE PROSECUTIONS. 

CERTIORARI GRANTED; 78 WASH.2D 894, 480 P.2D 484, REVERSED. 

PER CURIAM. 

ON JUNE 10, 1969, A BOMB SENT THROUGH THE MAIL EXPLODED IN THE
RESIDENCE OF RALPH BURDICK IN CLARK COUNTY, WASHINGTON.  THE EXPLOSION
KILLED BURDICK AND THE PETITIONER'S INFANT SON, MARK ALLEN HARRIS, AND
SERIOUSLY INJURED THE PETITIONER'S ESTRANGED WIFE, LAILA VIOLET
HARRIS.  THE PETITIONER WAS TRIED IN A STATE COURT FOR THE MURDER OF
RALPH BURDICK AND WAS ACQUITTED BY A JURY.  HE WAS IMMEDIATELY
REARRESTED ON INFORMATIONS CHARGING THE MURDER OF MARK ALLEN HARRIS AND
THE ASSAULT UPON LAILA VIOLET HARRIS.  TO THESE INFORMATIONS THE
PETITIONER ENTERED PLEAS OF FORMER JEOPARDY AND COLLATERAL ESTOPPEL,
AND MOVED TO DISMISS.  THE TRIAL COURT DENIED THE MOTION AND STRUCK THE
DEFENSES. 

THE STATE COURT OF APPEALS GRANTED A WRIT OF PROHIBITION ON THE
GROUNDS OF COLLATERAL ESTOPPEL, FINDING THAT "THE RECORD DEMONSTRATES
WITHOUT QUESTION THAT THE RETRIAL OF PETITIONER FOR ASSAULT AND MURDER
WILL REQUIRE RELITIGATION OF THE SAME ULTIMATE FACT" DETERMINED
ADVERSELY TO THE STATE IN THE PREVIOUS TRIAL-- I.E., WHETHER IT WAS THE
PETITIONER WHO HAD MAILED THE BOMB.  2 WASH.APP.  272, 291-292, 469
P.2D 937, 948.  THE SUPREME COURT OF WASHINGTON AGREED THAT THE SAME
ULTIMATE ISSUE WAS INVOLVED IN BOTH PROSECUTIONS, BUT NEVERTHELESS
REVERSED THE COURT OF APPEALS AND DENIED THE WRIT OF PROHIBITION.  THE
COURT NOTED THAT A RULING ON THE ADMISSIBILITY OF EVIDENCE DURING THE
MURDER TRIAL HAD RESULTED IN THE EXCLUSION, ON GROUNDS HAVING "NO
BEARING ON THE QUALITY OF THE EVIDENCE," OF A LETTER ALLEGEDLY WRITTEN
BY THE PETITIONER AND CONTAINING THREATS AGAINST THE LIVES OF MR.
BURDICK AND MRS. HARRIS.  78 WASH.2D 894, 901, 480 P.2D 484, 487-488. 
BECAUSE OF ITS VIEW THAT THIS EVIDENCE WOULD CLEARLY BE ADMISSIBLE IN
THE SECOND TRIAL, THE COURT HELD THAT THE ISSUE OF IDENTITY HAD NOT
BEEN "FULLY LITIGATED" IN THE PREVIOUS TRIAL, AND THAT THE DOCTRINE OF
COLLATERAL ESTOPPEL DID NOT BAR A SUBSEQUENT TRIAL IN WHICH LITIGATION
OF THE ISSUE WILL BE "COMPLETE." 

SINCE THE STATE COURTS HAVE FINALLY REJECTED A CLAIM THAT THE
CONSTITUTION FORBIDS A SECOND TRIAL OF THE PETITIONER, A CLAIM SEPARATE
AND APART FROM THE QUESTION WHETHER THE PETITIONER MAY CONSTITUTIONALLY
BE CONVICTED OF THE CRIMES WITH WHICH HE IS CHARGED, OUR JURISDICTION
IS PROPERLY INVOKED UNDER 28 U.S.C. 1257.  SEE MERCANTILE NATIONAL BANK
V. LANGDEAU, 371 U.S. 555, 558. 

IN ASHE V. SWENSON, 397 U.S. 436, WE HELD THAT COLLATERAL ESTOPPEL
IN CRIMINAL TRIALS IS AN INTEGRAL PART OF THE PROTECTION AGAINST DOUBLE
JEOPARDY GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS.  SEE BENTON
V. MARYLAND, 395 U.S. 784.  WE SAID THAT COLLATERAL ESTOPPEL "MEANS
SIMPLY THAT WHEN AN ISSUE OF ULTIMATE FACT HAS ONCE BEEN DETERMINED BY
A VALID AND FINAL JUDGMENT, THAT ISSUE CANNOT AGAIN BE LITIGATED
BETWEEN THE SAME PARTIES IN ANY FUTURE LAWSUIT."  397 U.S.,AT 443.  THE
STATE CONCEDES THAT THE ULTIMATE ISSUE OF IDENTITY WAS DECIDED BY THE
JURY IN THE FIRST TRIAL.  THAT BEING SO, THE CONSTITUTIONAL GUARANTEE
APPLIES, IRRESPECTIVE OF WHETHER THE JURY CONSIDERED ALL RELEVANT
EVIDENCE, AND IRRESPECTIVE OF THE GOOD FAITH OF THE STATE IN BRINGING
SUCCESSIVE PROSECUTIONS. 

SINCE ASHE V. SWENSON, SUPRA, SQUARELY CONTROLS THIS CASE, THE
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED, THE PETITION
FOR A WRIT OF CERTIORARI IS GRANTED, AND THE JUDGMENT IS

              REVERSED. 

MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR. JUSTICE MARSHALL
WOULD GRANT THE PETITION AND REVERSE THE JUDGMENT BOTH FOR THE REASONS
STATED IN THE PER CURIAM OPINION AND FOR THE REASONS STATED IN MR.
JUSTICE BRENNAN'S CONCURING OPINION IN ASHE V. SWENSON, 397 U.S. 436,
448. 

CHIEF JUSTICE BURGER, DISSENTING. 

THE COURT'S SUMMARY ACT WITHOUT HEARING ARGUMENT IN THIS CASE IS
WRONG IN TWO RESPECTS:  FIRST, IT IS ANOTHER INSTANCE OF IMPORTING INTO
THE ADMINISTRATION OF CRIMINAL JUSTICE THE CIVIL DOCTRINE OF COLLATERAL
ESTOPPEL TO WHICH I DISSENT FOR THE REASONS STATED IN MY DISSENT IN
ASHE V. SWENSON, 397 U.S. 436, 460 (1970); SECOND, EVEN ASSUMING THE
COLLATERAL ESTOPPEL APPROACH HAS VALIDITY, THE EVIDENCE IN THIS CASE IN
THE SECOND TRAIL IS NOT THE "SAME EVIDENCE" ON WHICH THE FIRST CASE WAS
SUBMITTED SO THAT THIS IS NOT A CASE FOR APPLICATION OF THAT UNSOUND
DOCTRINE. 

MR. JUSTICE BLACKMUN, DISSENTING. 

MY OWN VIEWS ON THE ISSUE PRESENTED BY THIS CASE WERE EXPRESSED WHEN
I WROTE FOR THE COURT OF APPEALS IN ASHE V. SWENSON, 399 F.2D 40 (CA8
1968), REVERSED AND REMANDED, 397 U.S. 436 (1970).  I AM NOT PERSUADED
AS TO THE RIGHTNESS OF THE COURT'S IMPOSING IN THAT CASE-- AS A FIFTH
AMENDMENT-FOURTEENTH AMENDMENT IMPERATIVE-- THE CONCEPT OF COLLATERAL
ESTOPPEL UPON A STATE CRIMINAL PROCEEDING.  I COULD HAVE UNDERSTOOD A
FLAT OVERRULING OF HOAG V. NEW JERSEY, 356 U.S. 464 (1958), AND OF
CIUCCI V. ILLINOIS, 356 U.S. 571 (1958), DESPITE THE INTERIM APPEARANCE
OF BENTON V. MARYLAND, 395 U.S. 784 (1969).  BUT OVERRULING THOSE TWO
CASES WAS A STEP THE COURT, FOR REASONS THAT ESCAPE ME, REFUSED TO TAKE
OR FELT IT COULD NOT TAKE. 

NEITHER AM I PERSUADED BY THE "SINGLE FROLIC" OR "ONE CRIMINAL
EPISODE" OR "SAME TRANSACTION" THEORY ESPOUSED BY THE JUSTICES IN
CONCURRENCE IN ASHE V. SWENSON, 397 U.S.,AT 448-460.  THAT APPROACH
WOULD PLACE MULTIPLE BUT SEPARATE-SHOT MURDERS UNDER THE PROTECTIVE
UMBRELLA OF DOUBLE JEOPARDY.  I CANNOT SUBSCRIBE TO REASONING THAT
WOULD NECESSARILY PRODUCE A RESULT OF THAT KIND. 

I THEREFORE DISSENT. 
..END :




















CRUZ V. HAUCK, 404 U.S. 59 


       CRUZ ET AL. V. HAUCK, SHERIFF

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 70-5343.  DECIDED NOVEMBER 16, 1971 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF YOUNGER V. GILMORE, ANTE,
P. 15. 

MR. JUSTICE DOUGLAS, CONCURRING. 

PETITIONERS ARE PRISONERS WHO CLAIM THAT THE PRISON AUTHORITIES HAVE
DENIED THEM ACCESS TO LAW BOOKS NEEDED TO SEEK JUDICIAL REMEDIES.  THEY
ARE INMATES OF THE BEXAR COUNTY JAIL IN TEXAS AND INSTITUTED THIS
ACTION IN THE DISTRICT COURT TO RESTRAIN THE RESPONDENT'S INTERFERENCE
WITH THEIR REASONABLE ACCESS TO HARDBOUND LAW BOOKS AND OTHER LEGAL
MATTER.  /1/  THEY ASSERTED THAT COUNTY JAIL REGULATIONS AND PRACTICES
DEPRIVED THEM OF THEIR RIGHTS TO SEEK JUDICIAL REDRESS.  THEIR
CUSTODIANS ANSWERED THAT PRISON SECURITY NECESSITATED REMOVING HARDBACK
COVERS AS PART OF AN OVERALL SCHEME TO ARREST SMUGGLING OF CONTRABAND. 
WITHOUT CONDUCTING A HEARING INTO THE MATTER, THE DISTRICT COURT
SUMMARILY DISMISSED THE COMPLAINT.  /2/ 

THE QUESTION IS AN IMPORTANT ONE IN THE EVOLUTION BY STATUTES AND
CONSTITUTIONAL DECISIONS OF A BILL OF RIGHTS FOR PRISONERS.  PRISONERS
ARE NOT STATISTICS, KNOWN ONLY TO A COMPUTER, BUT HUMANS ENTITLED TO
ALL THE AMENITIES AND PRIVILEGES OF OTHER PERSONS, SAVE AS CONFINEMENT
AND NECESSARY SECURITY MEASURES MAY BE NEEDED RESPECTING BOOKS, IT IS
NOT CONCEIVABLY PLAUSIBLE TO MAINTAIN THAT ESSENTIAL BOOKS CAN BE
TOTALLY BANNED. 

THAT QUESTION IS SUBMERGED IN THIS CASE AS THE INITIAL ISSUE
CONCERNS THESE PRISONERS' REQUEST TO PROCEED IN FORMA PAUPERIS ON
APPEAL FROM THE DISTRICT COURT'S DISMISSAL OF THEIR ACTION, THE COURT
OF APPEALS HAVING REFUSED TO DOCKET THEIR CASES WITHOUT PREPAYMENT OF
FILING FEES AND SECURITY WHICH LITIGANTS NORMALLY ADVANCE. 

PETITIONERS FILED A TIMELY NOTICE OF APPEAL AND PURSUANT TO FED.
RULE APP. PROC. 24(A) (FIRST PARAGRAPH) SOUGHT FROM THE DISTRICT JUDGE
LEAVE TO APPEAL IN FORMA PAUPERIS AS TO PREPAYMENT OF A $25 FILING FEE
/3/  AND THE $250 MINIMUM SECURITY DEPOSIT REQUIRED BY FED. RULE APP.
PROC. 7.  THE DISTRICT JUDGE REFUSED THE REQUEST, CERTIFYING IN
RELEVANT PART THAT:  "THIS COURT . . . IS OF THE OPINION THAT ANY
APPEAL TAKEN FROM THE ORDER OF DENIAL IN THIS CASE WOULD BE FRIVOLOUS,
WITHOUT MERIT, AND NOT TAKEN IN GOOD FAITH."  /4/  NO OTHER EXPLANATION
WAS OFFERED ALTHOUGH IN HIS EARLIER UNREPORTED ORDER DISMISSING THE
ORIGINAL ACTION THE DISTRICT JUDGE SAID THAT PRISONERS DO NOT HAVE "A
RIGHT TO BE FURNISHED WITH AN EXTENSIVE COLLECTION OF LEGAL MATERIALS"
AND THAT COURTS "MAY NOT INTERFERE WITH THE CONDUCT OF A PRISON."  /5/ 

PETITIONERS THEN APPLIED TO THE COURT OF APPEALS FOR A SIMILAR
WAIVER OF FILING FEES AND SECURITY.  THEIR APPLICATION WAS DENIED
WITHOUT OPINION /6/  AND THEIR MOTION FOR RECONSIDERATION WAS ALSO
REFUSED WITHOUT OPINION.  /7/  PRESENTED WITH THEIR MOTION FOR
RECONSIDERATION WERE MEMORANDA POSING THEIR PRIMARY CONTENTION NOW
BEFORE THIS COURT THAT THESE DENIALS OF LEAVE TO PROCEED IN FORMA
PAUPERIS OFFENDED THESE PETITIONERS' RIGHTS OF EQUAL ACCESS TO JUDICIAL
MACHINERY.  /8/

        I 

WE HAVE HELD, IN LINE WITH GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956),
THAT AN INDIGENT PRISONER CANNOT BE DEPRIVED OF A DIRECT CRIMINAL
APPEAL OR OF STATE HABEAS RELIEF SOLELY ON ACCOUNT OF HIS INABILITY TO
PREPAY DOCKETING FEES.  SMITH V. BENNETT, 365 U.S. 708 (1961) ($4
FILING FEE FOR STATE HABEAS ACTION AND $3 FILING FEE FOR APPEAL
THEREFROM); BURNS V. OHIO, 360 U.S. 252 (1959) ($20 FILING FEE FOR
DISCRETIONARY REVIEW OF CRIMINAL APPEAL).  /9/  IN 1892 CONGRESS
AUTHORIZED THE FEDERAL COURTS TO PROVIDE THE DISADVANTAGED WITH A WIDE
RANGE OF IN FORMA PAUPERIS RELIEF.  ACT OF JULY 20, 1892, 27 STAT.
252.  THE BENEFITS OF THIS GENEROUS PROVISION, NOW CODIFIED AT 28
U.S.C. 1915, HAVE BEEN LIMITED, HOWEVER, BY THE IMPORTANT PROVISO ADDED
IN 1910 (36 STAT. 866) WHICH, AS NOW AMENDED, READS: 

     "AN APPEAL MAY NOT BE TAKEN IN FORMA PAUPERIS IF THE TRIAL

  COURT CERTIFIES IN WRITING THAT IT IS NOT TAKEN IN GOOD FAITH." 

"GOOD FAITH" HAS BEEN DEFINED AS A REQUIREMENT THAT AN APPEAL PRESENT A
NONFRIVOLOUS QUESTION FOR REVIEW.  IF THE DISTRICT COURT CERTIFIES THAT
AN APPEAL WOULD NOT PRESENT SUCH A QUESTION, THEN AN INDIGENT MAY ASK
THE COURT OF APPEALS FOR PERMISSION TO PROCEED IN FORMA PAUPERIS.  THAT
COURT MUST GRANT THE RENEWED MOTION IF AFTER A DE NOVO DETERMINATION IT
DISAGREES WITH THE DISTRICT COURT'S APPLICATION OF THE GOOD-FAITH
TEST.  IF BOTH LOWER COURTS REFUSE PERMISSION, THEN, UNLESS THIS COURT
VACATES THE COURT OF APPEALS' FINDING, THE PAUPER'S APPEAL IS ENDED
WITHOUT A HEARING ON THE MERITS.  SEE FED. RULE APP. PROC. 24(A).  IT
IS IMPORTANT THAT IN ALL OF THESE PROCEEDINGS THE ONLY COGNIZABLE ISSUE
IS WHETHER A SUMMARY SURVEY (AS OPPOSED TO PLENARY DELIBERATION)
SUGGESTS THAT A SUBSTANTIAL ARGUMENT COULD BE PRESENTED.  FOR A
DISCUSSION OF THE PROCEDURES EMPLOYED SEE COPPEDGE V. UNITED STATES,
369 U.S. 438 (1962); HARDY V. UNITED STATES, 375 U.S. 277 (1964). 

II 

OUR HOLDING HAVE STEADILY CHIPPED AWAY AT THE PROPOSITION THAT
APPEALS OF THE POOR CAN BE DISPOSED OF SOLELY ON SUMMARY AND
ABBREVIATED INQUIRIES INTO FRIVOLITY RATHER THAN UPON THE PLENARY
CONSIDERATION GRANTED PAYING APPELLANTS.  /10/  IN ESKRIDGE V.
WASHINGTON PRISON BOARD, 357 U.S. 214 (1958), WE HELD THAT A STATE MAY
NOT WITHHOLD A TRANSCRIPT AND THEREBY DENY AN APPEAL TO A POOR MAN
MERELY BECAUSE A TRIAL JUDGE BELIEVED HIS OWN CONDUCT HAD AVOIDED THE
PRODUCTION OF NONFRIVOLOUS QUESTIONS FOR REVIEW.  SEE ALSO ROSS V.
SCHNECKLOTH, 357 U.S. 575 (1958).  IN LANE V. BROWN, 372 U.S. 477
(1963), WE DECIDED THAT AN IMPOVERISHED PRISONER'S APPEAL FROM A STATE
CORAM NOBIS HEARING COULD NOT BE THWARTED SIMPLY BECAUSE A PUBLIC
DEFENDER OFFICER BELIEVED HIS CASE LACKED MERIT.  IN ELLIS V. UNITED
STATES, 356 U.S. 674 (1958), WE EMPHASIZED THAT A CRIMINAL APPELLANT
SEEKING TO ESTABLISH NONFRIVOLITY UNDER 28 U.S.C. 1915 IS ENTITLED TO
MORE THAN APPOINTED COUNSEL'S PRIVATE VIEW THAT HIS APPEAL WOULD BE
WORTHLESS AND THAT IF COUNSEL WITHDREW FOR THAT REASON THE COURT OF
APPEALS WAS DUTY BOUND TO REPLACE HIM.  WE HAVE ALSO HELD THAT A COURT
OF APPEALS MAY NOT OVERRULE THE PERMISSION GRANTED BY A DISTRICT COURT
TO PROCEED IN FORMA PAUPERIS, MCGANN V. UNITED STATES, 362 U.S. 309
(1960), BUT THAT A COURT OF APPEALS MUST REVIEW DE NOVO A TRIAL JUDGE'S
CERTIFICATION THAT AN APPEAL WOULD NOT BE IN GOOD FAITH, JOHNSON V.
UNITED STATES, 352 U.S. 565 (1957). 

MOREOVER, IN FEDERAL CRIMINAL APPEALS ON DIRECT REVIEW MOST CIRCUITS
HAVE PROVIDED AS A MATTER OF COURSE THE ENTIRE PANOPLY OF SEC. 1915
RELIEF, INCLUDING COUNSEL, TRANSCRIPTS, AND WAIVER OF FILING FEES AND
SECURITY, MERELY UPON A SHOWING OF POVERTY.  AND, TO THE EXTENT THAT
THE NONFRIVOLITY TEST IS STILL ENFORCEABLE ELSEWHERE, OUR OPINIONS IN
COPPEDGE, SUPRA, AND HARDY, SUPRA, HAVE PARTIALLY ATTENUATED ITS
HARSHER EFFECTS BY REQUIRING THE APPOINTMENT OF COUNSEL AND THE
PROVISION OF TRANSCRIPTS FOR THE PRELIMINARY PURPOSE OF ASCERTAINING
WHETHER APPEALS WOULD PRODUCE WORTHWHILE ISSUES. 

IT IS TRUE, OF COURSE, THAT MOST OF THESE DECISIONS INVOLVED
CRIMINAL APPEALS RATHER THAN CIVIL APPEALS.  /11/  BUT THE EQUAL
PROTECTION CONCEPT IS "NOT LIMITED TO CRIMINAL PROSECUTIONS" AND ITS
"PROTECTIONS EXTEND AS WELL TO CIVIL MATTERS."  SEE WILLIAMS V.
SHAFFER, 385 U.S. 1037, 1039 (1967).  INDEED, LAST TERM, IN BODDIE V.
CONNECTICUT, 401 U.S. 371 (1971), WE HELD ON EQUAL PROTECTION AND DUE
PROCESS GROUNDS THAT A STATE COULD NOT DENY A DIVORCE TO AN IMPECUNIOUS
WIFE SOLELY BECAUSE SHE COULD NOT PAY RELATIVELY SMALL FILING AND
SERVICE-OF-PROCESS FEES.  MOREOVER, OF THE GRIFFIN PROGENY AT LEAST TWO
OF OUR OPINIONS CONCERNED CIVIL HABEAS APPEALS, CONDEMNING FILING FEES
SUBSTANTIALLY LESS BURDENSOME THAN THOSE REQUIRED BELOW BY THE FIFTH
CIRCUIT.  SEE LONG V. DISTRICT COURT OF IOWA, 385 U.S. 192 (1966), AND
SMITH V. BENNETT, SUPRA.  AND LOWER COURT DECISIONS HAVE NURTURED THE
STURDY EXPANSION OF GRIFFIN TO NON-HABEAS CIVIL APPEALS.  IN A CIVIL
RIGHTS CASE SIMILAR TO THE INSTANT ONE, LOCKHART V. D'URSO, 408 F.2D
354 (1969), THE THIRD CIRCUIT HELD THAT IN FORMA PAUPERIS AID SHOULD
NORMALLY BE GRANTED AS A MATTER OF COURSE IN ORDER TO MINIMIZE COURTS'
TREATMENT OF LITIGANTS BASED UPON ECONOMIC CIRCUMSTANCES.  ID., AT
355.  THE UPSHOT OF THESE JUDICIAL PRONOUNCEMENTS WAS FORCEFULLY
SUMMARIZED BY MR. JUSTICE BLACK LAST TERM:  "IN MY VIEW, THE DECISION
IN BODDIE V. CONNECTICUT CAN SAFELY REST ON ONLY ONE CRUCIAL FOUNDATION
- THAT THE CIVIL COURTS OF THE UNITED STATES AND EACH OF THE STATES
BELONG TO THE PEOPLE OF THIS COUNTRY AND THAT NO PERSON CAN BE DENIED
ACCESS TO THOSE COURTS, EITHER FOR A TRIAL OR AN APPEAL, BECAUSE HE
CANNOT PAY A FEE, FINANCE A BOND, RISK A PENALTY, OR AFFORD TO HIRE AN
ATTORNEY."  MELTZER V. C. BUCK LECRAW & CO., 402 U.S. 954, 955-956
(1971) (DISSENT FROM DENIAL OF CERTIORARI).  /12/ 

THE ELUSIVE NATURE OF THE FRIVOLITY STANDARD IS PARTLY DEMONSTRATED
BY THE NUMBER OF TIMES THIS COURT HAS VACATED FINDINGS OF BAD FAITH BY
THE LOWER COURTS.  /13/  IT IS NO ANSWER THAT WE MAY CONTINUE TO
RECTIFY SUCH ERRORS ON AN AD HOC BASIS, FOR EVEN SO INDIGENTS ARE
NONETHELESS REQUIRED TO RETURN TO COURTS OF APPEALS AND ONLY THEN--
AFTER SUBSTANTIAL DELAY-- OBTAIN PLENARY REVIEW ON THE MERITS. 
COPPEDGE, SUPRA, AT 453.  WEALTHIER LITIGANTS, OF COURSE, HAVE NO SUCH
HURDLES TO PASS BEFORE OBTAINING FULL REVIEW OF THEIR ASSIGNMENTS OF
ERROR.  ALTHOUGH THESE HURDLES MIGHT BE JUSTIFIABLE WHERE INDIGENTS
REQUESTED MORE SUBSTANTIAL RELIEF, THEY ARE TOO ONEROUS WHERE ALL THAT
IS AT STAKE IS THE PREPAYMENT OF A $25 FILING FEE AND $250 SECURITY
DEPOSIT. 

IT IS APPARENT THAT THIS DISPARATE TREATMENT HAS THE EFFECT OF
CLASSIFYING APPELLANTS ACCORDING TO WEALTH, WHICH, LIKE RACE, IS A
SUSPECT CLASSIFICATION.  GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956);
HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663 (1966).  SEE ALSO
SHAPIRO V. THOMPSON, 394 U.S. 618 (1969).  ACCORDINGLY, THIS
CLASSIFICATION COULD WITHSTAND CHALLENGE ONLY UPON A SHOWING OF
COMPELLING CIRCUMSTANCES.  RESPONDENT OFFERS NONE BUT SIMPLY REPEATS
THE DISCREDITED MAXIM THAT PAUPERS' APPEALS ARE PRIVILEGES, NOT
RIGHTS.  /14/ 

THUS, I WOULD NOT REMAND THIS CASE ON THE LIMITED GROUND THAT THE
COURT OF APPEALS MAY HAVE UNDERESTIMATED THE WEIGHT OF THE PETITIONERS'
CLAIM.  RATHER, I WOULD HOLD THAT UPON A SHOWING OF POVERTY COURTS OF
APPEALS HENCEFORTH MUST WAIVE PREPAYMENT AND MAY NOT INQUIRE INTO
WHETHER AN APPEAL MAY EVENTUALLY POSE A FRUITFUL ISSUE, AT LEAST IN
CASES, SUCH AS THIS ONE, INVOLVING FUNDAMENTAL CIVIL LIBERTIES. 

I WOULD GRANT CERTIORARI AND REMAND THE CASE TO THE FIFTH CIRCUIT SO
THAT THESE PETITIONERS MAY HAVE THEIR APPEAL DOCKETED WITHOUT
PREPAYMENT OF FEES OR SECURITY. 

/1/  IN THEIR COMPLAINT PETITIONERS RELIED UPON 28 U.S.C. 1343(3);
28 U.S.C. 2201; AND 42 U.S.C. 1983. 

/2/  CRUZ V. HAUCK, CIVIL ACTION SA70CA182 (WD TEX., FILED OCT. 30,
1970) (UNREPORTED). 

/3/  UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT RULE
8(D). 

/4/  CRUZ V. HAUCK, CIVIL ACTION SA70CA182 (WD TEX., FILED DEC. 3,
1970) (UNREPORTED). 

/5/  CRUZ V. HAUCK, CIVIL ACTION SA70CA182 (WD TEX., FILED OCT. 28,
1970) (UNREPORTED). 

/6/  CRUZ V. HAUCK, MISC. NO. 1964 (CA5, FILED FEB. 1, 1971). 

/7/  CRUZ V. HAUCK, MISC. NO. 1964 (CA5, FILED MAR. 12, 1971). 

/8/  THE ISSUE AT STAKE IN THE APPEAL WAS CLEARLY NOT FRIVOLOUS AS
INDICATED BY OUR DECISION IN YOUNGER V. GILMORE, ANTE, P. 15, THAT
THERE ARE LIMITS ON THE EXTENT TO WHICH PRISON OFFICIALS MAY RESTRICT
INMATES' ACCESS TO LAW BOOKS.  ON AT LEAST 21 OCCASIONS THIS COURT HAS
REVERSED LOWER COURTS' HOLDINGS THAT ONLY FRIVOLOUS CLAIMS WERE SOUGHT
TO BE PRESENTED.  RUBIO V. UNITED STATES, 387 U.S. 90 (1967); ROBINSON
V. UNITED STATES, 372 U.S. 527 (1963); JONES V. UNITED STATES, 371 U.S.
25 (1962); GILLIAM V. UNITED STATES, 370 U.S. 727 (1962); GARRETT V.
UNITED STATES, 369 U.S. 662 (1962); KEMP V. UNITED STATES, 369 U.S. 661
(1962); COPPEDGE V. UNITED STATES, 369 U.S. 438 (1962); SEE 14 CASES
PRIOR TO COPPEDGE CITED ID., AT 440-441, N. 1. 

/9/  SEE ALSO ROBERTS V. LAVALLEE, 389 U.S. 40 (1967); LONG V.
DISTRICT COURT OF IOWA, 385 U.S. 192 (1966); DRAPER V. WASHINGTON, 372
U.S. 487 (1963); DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963). 

/10/  ALTHOUGH NO EXPLICIT EQUAL PROTECTION CLAUSE IS DIRECTED BY
THE CONSTITUTION AGAINST THE FEDERAL GOVERNMENT THE CONCEPT OF EQUAL
PROTECTION OF THE LAWS IS INCORPORATED INTO THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT.  BOLLING V. SHARPE, 347 U.S. 497 (1954). 

/11/  FOR A DISCUSSION OF APPLICATION OF OUR IN FORMA PAUPERIS
DECISIONS TO CIVIL APPEALS IN THE FEDERAL COURTS, SEE BLACKMUN,
ALLOWANCE OF IN FORMA PAUPERIS APPEALS IN SEC. 2255 AND HABEAS CORPUS
CASES, 43 F.R.D. 343 (1967). 

/12/  TOGETHER WITH SEVEN OTHER CASES, 402 U.S. 954 N. 

/13/  SEE CASES CITED AT N. 8. 

/14/  VAN ASTYNE, THE DEMISE OF THE RIGHT-PRIVILEGE DISTINCTION IN
CONSTITUTIONAL LAW, 81 HARV.L.REV. 
..END :



















SCHREINER V. UNITED STATES, 404 U.S. 67 


       SCHREINER V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT

        NO. 71-5294.  DECIDED NOVEMBER 16, 1971 


CERTIORARI GRANTED; 435 F.2D 1004, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED, THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR
FURTHER PROCEEDINGS, INCLUDING RE-ENTRY OF ITS JUDGMENT AFFIRMING
PETITIONER'S CONVICTION AND CONSIDERATION OF THE APPOINTMENT OF COUNSEL
FOR PETITIONER IN CONNECTION WITH SEEKING REVIEW IN THIS COURT OF THE
JUDGMENT OF THE COURT OF APPEALS.  18 U.S.C. 3006AC), 3006AD)(6),
3006AG).  SEE ALSO H. R. REP. NO. 1709, 88TH CONG., 2D SESS., 7 (1964);
REPORT OF THE COMMITTEE TO IMPLEMENT THE CRIMINAL JUSTICE OF 1964,
PRESENTED TO A SPECIAL SESSION OF THE JUDICIAL CONFERENCE OF THE UNITED
STATES, 36 F.R.D. 285, 291 (1965); RED.  RULE CRIM. PROC. 44(A);
DOHERTY V. UNITED STATES, ANTE, P. 28. 

MR. JUSTICE DOUGLAS, CONCURRING. 

SCHREINER HAS A STATUTORY RIGHT TO THE ASSISTANCE OF A LAWYER IN
DRAFTING HIS PETITION FOR CERTIORARI.  AS I INDICATED IN DOHERTY V.
UNITED STATES, ANTE, P. 29, THAT RIGHT IS NOT CONDITIONED ON COUNSEL'S
APPRAISAL OF THE MERITS OF THE PETITION.  NO CONDITIONS ARE ATTACHED TO
RIGHTS UNDER FED. RULE CRIM. PROC. 44 AND THE CRIMINAL JUSTICE ACT OF
1964.  THIS VIEW WAS ADOPTED BY THE JUDICIAL CONFERENCE'S COMMITTEE TO
IMPLEMENT THE CRIMINAL JUSTICE ACT: 

"(COUNSEL APPOINTED ON APPEAL SHOULD ADVISE THE DEFENDANT OF HIS
RIGHT TO INITIATE A FURTHER REVIEW BY THE FILING OF A PETITION FOR
CERTIORARI, AND TO FILE SUCH PETITION, IF REQUESTED BY THE DEFENDANT." 
REPORT OF THE COMMITTEE TO IMPLEMENT THE CRIMINAL JUSTICE ACT, 36
F.R.D. 285, 291 (1965).  MOREOVER, THE TENTH CIRCUIT HAS IMPLEMENTED
THIS SUGGESTION.  SEE 1A WEST'S FEDERAL FORMS, SUPREME COURT, SEC. 488
(B. BOSKEY ED. 1969). 

THERE MAY WELL BE INSTANCES WHERE THE REMEDY SOUGHT IS INAPPROPRIATE
- E.G., AN EFFORT TO OBTAIN MANDAMUS WHERE THE DUTY IS ONLY
DISCRETIONARY.  THE STATUTE DOES NOT, HOWEVER, PERMIT AN INDIGENT'S
RIGHT TO BE CONDITIONED UPON THE FORTUITY OF WHETHER A LAWYER BELIEVES
THIS COURT WILL GRANT HIS PETITION.  WE OURSELVES OFTEN HAVE DIFFICULTY
MAKING THAT PROPHECY. 
..END :






















CAMP V. ARKANSAS, 404 U.S. 69 


       CAMP V. ARKANSAS

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           ARKANSAS

        NO. 70-353.  DECIDED NOVEMBER 16, 1971 


CERTIORARI GRANTED; 249 ARK. 1075, 467 S.W.2D 707, REVERSED AND
REMANDED. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  PETITIONER'S
ALLEGED PROCEDURAL DEFAULT DOES NOT BAR CONSIDERATION OF HIS
CONSTITUTIONAL CLAIM IN THE CIRCUMSTANCES OF THIS CASE.  SEE HENRY V.
MISSISSIPPI, 379 U.S. 443, 447-449 (1965).  THE JUDGMENT OF THE SUPREME
COURT OF ARKANSAS IS REVERSED.  GRIFFIN V. CALIFORNIA, 380 U.S. 609
(1965).  THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 
..END :





PEASE V. HANSEN, 404 U.S. 70 


       PEASE V. HANSEN, DIRECTOR, CASCADE COUNTY DEPARTMENT OF

           PUBLIC WELFARE, ET AL.

        APPEAL FROM THE SUPREME COURT OF MONTANA

        NO. 70-5376.  DECIDED NOVEMBER 16, 1971 


157 MONT. 99, 483 P.2D 720, REVERSED. 

PER CURIAM. 

THE MOTION OF THE APPELLANT FOR LEAVE TO PROCEED IN FORMA PAUPERIS
IS GRANTED. 

WHETHER A WELFARE PROGRAM IS OR IS NOT FEDERALLY FUNDED IS
IRRELEVANT TO THE CONSTITUTIONAL PRINCIPLES ENUNCIATED IN SHAPIRO V.
THOMPSON, 394 U.S. 618.  THE JUDGMENT OF THE SUPREME COURT OF MONTANA
IS REVERSED. 

THE CHIEF JUSTICE IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND THE CASE SET FOR ORAL ARGUMENT. 
..END :




NORFOLK & WESTERN R. CO. V. NEMITZ, 404 U.S. 37 


       NORFOLK & WESTERN RAILROAD CO. V. NEMITZ ET AL.

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 70-97.  ARGUED OCTOBER 21, 1971-- DECIDED NOVEMBER 15,

           1971 


IN ANTICIPATION OF A RAILROAD CONSOLIDATION BY WHICH PETITIONER
ACQUIRED THE SO-CALLED SANDUSKY LINE FROM THE PENNSYLVANIA RAILROAD,
PETITIONER ENTERED INTO AN AGREEMENT WITH CERTAIN LABOR UNIONS FOR THE
PROTECTION OF THE EMPLOYEES INVOLVED.  THE AGREEMENT PROVIDED THAT THE
EMPLOYEES WOULD NOT BE ADVERSELY AFFECTED IN THEIR EMPLOYMENT AS A
RESULT OF THE TRANSACTION.  RESPONDENTS WERE EMPLOYEES OF THE
PENNSYLVANIA, WHO WORKED SEASONALLY ON THE SANDUSKY LINE, AND DURING
THE WINTER FREEZE WHICH BARRED NAVIGATION ON LAKE ERIE WORKED AT OTHER
POINTS ON THE PENNSYLVANIA SYSTEM.  UPON THE CONSOLIDATION, RESPONDENTS
ACCEPTED EMPLOYMENT WITH PETITIONER.  THE AGREEMENT CALLED FOR A SALARY
SUPPLEMENT BASED UPON PRE-CONSOLIDATION MONTHLY COMPENSATION.  THE
INTERSTATE COMMERCE COMMISSION (ICC) IN ITS CONSOLIDATION APPROVAL
STATED THAT THE AGREEMENT WAS "MADE PURSUANT TO AND IN CONFORMITY WITH
SEC. 5(2)(F) OF THE INTERSTATE COMMERCE ACT FOR THE PROTECTION OF THE
COVERED EMPLOYEES."  SECTION 5(2)(F) PROVIDES THAT THE ICC "SHALL
REQUIRE A FAIR AND EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS OF
THE RAILROAD EMPLOYEES AFFECTED," AND STATES THAT "(NOTWITHSTANDING ANY
OTHER PROVISIONS OF THIS ACT, AN AGREEMENT PERTAINING TO THE PROTECTION
OF THE INTERESTS OF SAID EMPLOYEES MAY HEREAFTER BE ENTERED INTO" BY
ANY RAILROAD AND AN EMPLOYEE UNION.  A POST-CONSOLIDATION AGREEMENT WAS
MADE BETWEEN PETITIONER AND THE UNION, UNDER WHICH PETITIONER CLAIMED
THAT THE SALARY SUPPLEMENT WAS LIMITED SOLELY TO THE AMOUNT PAID
RESPONDENTS FOR THEIR SEASONAL SANDUSKY LINE WORK.  THE DISTRICT COURT
AGREED WITH RESPONDENTS THAT THE NEW AGREEMENT WAS NOT ENFORCEABLE AS
IT CONFLICTED WITH THE TERMS OF THE PRE-MERGER AGREEMENT AND THUS
VIOLATED THE ACT UNDER WHICH THE CONSOLIDATION TOOK PLACE, AND THE
COURT OF APPEALS AFFIRMED, WITH A MODIFICATION AS TO DAMAGES.  HELD: 

1.  SECTION 5(2)(F) PROVIDES MANDATORY COMPENSATION PROTECTION FOR
RAILROAD EMPLOYEES AFFECTED BY A CONSOLIDATION, AND THE ICC'S ADOPTION
OR APPROVAL OF A PRE-MERGER COLLECTIVE AGREEMENT BECOMES A "CONDITION"
OF THE ICC'S APPROVAL OF A CONSOLIDATION UNDER THAT SECTION.  PP.
4143. 

2.  THE "NOTWITHSTANDING" PROVISO OF SEC. 5(2)(F) AFFORDS THE
MACHINERY FOR THE TERMS OF A PRE-MERGER COLLECTIVE AGREEMENT AND THUS
SUPPLIES ONE MINIMUM MEASURE OF FAIRNESS REQUIRED BY THE SECTION.  P.
43. 

3.  THE POST-CONSOLIDATION AGREEMENT ABROGATED THE EMPLOYEES' RIGHTS
AND THE STANDARD OF "COMPENSATION" COVERED BY THE PRE-MERGER AGREEMENT
THAT HAD COME UNDER THE ICC'S PROTECTIVE ORDER.  PP. 43-45. 

436 F.2D 841, AFFIRMED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN,
STEWART, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED A DISSENTING
OPINION, IN WHICH BURGER, C.J., AND WHITE, J., JOINED, POST, P. 45. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN CONNECTION WITH A 1964 CONSOLIDATION BY WHICH PETITIONER RAILWAY
COMPANY ABSORBED NEW YORK, CHICAGO & ST. LOUIS R. CO. (NICKEL PLATE),
THE SO-CALLED SANDUSKY LINE, RUNNING FROM COLUMBUS, OHIO, TO SANDUSKY,
OHIO, WAS ACQUIRED FROM THE PENNSYLVANIA RAILROAD SYSTEM.  RESPONDENTS
WERE AT THE TIME EMPLOYEES OF THE PENNSYLVANIA ON THE SANDUSKY LINE. 
THEIR WORK WAS SEASONAL BECAUSE THE WINTER FREEZE BARRED NAVIGATION ON
LAKE ERIE.  DURING THOSE PERIODS JUNIOR EMPLOYEES OF SANDUSKY WORKED AT
OTHER POINTS ON THE PENNSYLVANIA'S TOLEDO DIVISION. 

IN ANTICIPATION OF THE 1964 CONSOLIDATION, PETITIONER ENTERED INTO
AN AGREEMENT WITH 19 LABOR ORGANIZATIONS FOR PROTECTION OF THE
EMPLOYEES OF THE SEVERAL RAILROADS COMING INTO THE CONSOLIDATION,
INCLUDING THOSE ON THE SANDUSKY LINE.  PETITIONER AGREED TO EMPLOY "ALL
EMPLOYEES OF THE LINES INVOLVED WITH THE GUARANTEE THAT THEY WILL NOT
BE ADVERSELY AFFECTED IN THEIR EMPLOYMENT AS A RESULT OF THE PROPOSED
TRANSACTIONS OR FOR ANY REASON OTHER THAN FURLOUGHS DUE TO SEASONAL
REQUIREMENTS OR A DECLINE IN VOLUME OF TRAFFIC OR REVENUE.  324 I.C.C.
1, 89 (EMPHASIS ADDED). 

EACH EMPLOYEE WAS TO RECEIVE A MONTHLY SUPPLEMENT TO HIS POST
CONSOLIDATION MONTHLY EARNINGS EQUAL TO THE EXCESS, IF ANY, OF HIS
AVERAGE MONTHLY COMPENSATION FOR THE 12 MONTHS PRIOR TO THE
CONSOLIDATION IN WHICH HE HAD PERFORMED SERVICES. 

SOME 96 SANDUSKY LINE EMPLOYEES ELECTED TO ACCEPT EMPLOYMENT WITH
PETITIONER ON THE TERMS AND CONDITIONS STATED.  TWENTY-FIVE WERE JUNIOR
MEN WHO HAD WORKED SEASONALLY ON THE TOLEDO DIVISION AND THEY WERE THE
PLAINTIFFS IN THIS ACTION. 

THE CONSOLIDATION TOOK PLACE AND OVER A YEAR ELAPSED DURING WHICH
THESE TRAINMEN WERE NOT PAID THE COMPENSATION PROMISED.  ARBITRATION
PURSUANT TO THE COLLECTIVE AGREEMENT WAS AGREED UPON.  AT THAT POINT IN
1965 THE UNION AND PETITIONER ENTERED INTO A NEW AGREEMENT WHICH
REDUCED SUBSTANTIALLY THE BENEFITS OF THE JUNIOR TRAINMEN WHO HAD BEEN
SANDUSKY LINE EMPLOYEES.  THE DISTRICT COURT (287 F.SUPP.  221, 309
F.SUPP.  575) HELD THAT THIS NEW AGREEMENT WAS NOT ENFORCEABLE AS A
MATTER OF LAW AS IT VIOLATED THE ACT UNDER WHICH THE CONSOLIDATION OR
MERGER TOOK PLACE.  THE COURT OF APPEALS AFFIRMED, 436 F.2D 841, WITH A
MODIFICATION THAT THE DAMAGES DUE RESPONDENT-EMPLOYEES SHOULD BE
DETERMINED BY THE DISTRICT COURT, NOT THROUGH ARBITRATION.  THE CASE IS
HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED, 402 U.S.
994. 

STAT. 906, 49 U.S.C. 5(2)(F), PROVIDES THAT IN MERGERS AND
CONSOLIDATIONS "THE COMMISSION SHALL REQUIRE A FAIR AND EQUITABLE
ARRANGEMENT TO PROTECT THE INTERESTS OF THE RAILROAD EMPLOYEES
AFFECTED" FOR A PERIOD OF FOUR YEARS. 

THE ICC IN ITS APPROVAL OF THE CONSOLIDATION OR MERGER (324 I.C.C.
1, 106 (1964) STATED THAT THE AGREEMENTS RESPECTING, INTER ALIA, THE
RIGHTS OF THE SANDUSKY LINE EMPLOYEES WERE "MADE PURSUANT TO AND IN
CONFORMITY WITH SECTION 5(2)(F) OF THE INTERSTATE COMMERCE ACT FOR THE
PROTECTION OF COVERED EMPLOYEES."  /2/ 

IT CONSTRUED THE AGREEMENTS AS REQUIRING "THAT JOB ELIMINATIONS AS A
RESULT OF THE PROPOSED ACQUISITION OF CONTROL BE ACCOMPLISHED ONLY
THROUGH NORMAL ATTRITION."  IBID. 

THE MANDATE OF SEC. 5(2)(F) SEEMS CLEAR ENOUGH:  THE COMMISSION
"SHALL REQUIRE A FAIR AND EQUITABLE ARRANGEMENT TO PROTECT THE
INTERESTS OF THE RAILROAD EMPLOYEES AFFECTED."  THE COMMISSION, AS
NOTED, SAID THAT THE CONDITIONS PROTECTIVE OF THE EMPLOYEES WERE MADE
PURSUANT TO AND IN CONFORMITY WITH THE PROVISIONS OF SEC. 5(2)(F) AND
IT GAVE ITS AUTHORIZATION "SUBJECT TO SUCH AGREEMENT."  324 I.C.C.,AT
50.  THE SOLICITOR GENERAL AND THE ICC ARGUE IN THEIR AMICUS CURIAE
BRIEF THAT THE LAST SENTENCE OF SEC. 5(2)(F)-- THE "NOTWITHSTANDING"
PROVISION-- RELIEVED THE COMMISSION OF ANY DUTY TO REVIEW THE ADEQUACY
OF THE PROTECTIVE PROVISIONS CONTAINED IN A COLLECTIVE-BARGAINING
AGREEMENT, AND THAT THEY WERE NOT ACCORDED PROTECTION BY THE ICC
ORDER.  /3/ 

WE DISAGREE WITH THAT VIEW.  WE REVIEWED THE HISTORY OF SEC. 5(2)(F)
IN RAILWAY EXECUTIVES' ASSN. V. UNITED STATES, 339 U.S. 142, AND SAID
THAT "ONE OF ITS PRINCIPAL PURPOSES WAS TO PROVIDE MANDATORY PROTECTION
FOR THE INTERESTS OF EMPLOYEES AFFECTED BY RAILROAD CONSOLIDATIONS." 
/4/  ID., AT 148.  THAT "MANDATORY PROTECTION" CAN BE ACCORDED BY TERMS
PROVIDED BY THE COMMISSION, OR, AS IS MORE LIKELY, BY PROVISIONS OF A
COLLECTIVE AGREEMENT WHICH THE COMMISSION ADOPTS OR APPROVES AS
ADEQUATE FOR A MINIMUM OF FOUR YEARS (AS REQUIRED BY THE SECOND
SENTENCE) OR LONGER (AS ALLOWED BY THE FIRST SENTENCE) IF THE
COMMISSION SO PROVIDES.  ID., AT 154.  THE PURPOSE OF SEC. 5(2)(F) WAS
NOT TO FREEZE JOBS BUT TO PROVIDE COMPENSATORY CONDITIONS.  BROTHERHOOD
OF MAINTENANCE OF WAY EMPLOYES V. UNITED STATES, 366 U.S. 169, 175
176.  IN THAT CASE WE NOTED THAT THE COMMISSION HAS CONSISTENTLY
FOLLOWED THAT PRACTICE "IN OVER 80 CASES, WITH THE FULL SUPPORT OF THE
INTERVENING BROTHERHOODS."  ID., AT 177.  AND THE COMMISSION OVER AND
OVER AGAIN HAS ADOPTED THE SET OF LABOR CONDITIONS CONTAINED IN
COLLECTIVE AGREEMENTS IN DISCHARGE OF ITS DUTY UNDER SEC. 5(2)(F).  SEE
GULF, M. & O.R. CO. PURCHASE, 261 I.C.C. 405, 434; ERIE R. CO. TRACKAGE
RIGHTS, 295 I.C.C.  303, 305; DELAWARE, L. & W.R. CO. TRACKAGE RIGHTS,
295 I.C.C. 743, 755-756. 

WHEN THERE IS A COLLECTIVE AGREEMENT AND THE COMMISSION, AS HERE,
ADOPTS OR APPROVES IT, THE "NOTWITHSTANDING" SENTENCE OF SEC. 5(2)(F)
IS NOT, AS SUGGESTED, READ OUT OF THE ACT.  THE COLLECTIVE AGREEMENT
THEN BECOMES A "CONDITION" OF THE COMMISSION'S "APPROVAL" OF THE
CONSOLIDATION UNDER THE FIRST SENTENCE OF SEC. 5(2)(F) AND ITS
PROVISIONS ARE DEEMED BY THE COMMISSION TO BE "A FAIR AND EQUITABLE
ARRANGEMENT TO PROTECT THE INTERESTS" OF THE EMPLOYEES WITHIN THE
MEANING OF THE FIRST SENTENCE.  THUS, THE SIGNIFICANCE OF THE
"NOTWITHSTANDING" PROVISO IS THAT IT PROVIDES THE MACHINERY FOR THE
TERMS OF A PRE-MERGER COLLECTIVE AGREEMENT AND THUS SUPPLIES THE
MINIMUM MEASURE OF FAIRNESS REQUIRED UNDER THE FIRST SENTENCE OF SEC.
5(2)(F). 

IN 1965 AN IMPLEMENTING AGREEMENT, ENTERED INTO AFTER THE
CONSOLIDATION, WAS MADE BETWEEN THE UNION AND PETITIONER.  IT IS
PETITIONER'S CLAIM THAT IT LIMITED THESE JUNIOR EMPLOYEES TO THEIR
AVERAGE MONTHLY EARNINGS ON THE SANDUSKY LINE DURING THE 12 MONTHS
BEFORE THE CONSOLIDATION, REGARDLESS OF HOW MANY MONTHS THE EMPLOYEES
HAD WORKED DURING THAT PERIOD ON OTHER SECTIONS OF THE TOLEDO
DIVISION.  THAT IS TO SAY, EACH OF THEM WOULD RECEIVE UNDER THE 1965
IMPLEMENTING AGREEMENT AN AVERAGE MONTHLY COMPENSATION BASED ONLY ON
THEIR SEASONAL SANDUSKY LINE WORK.  THUS, RESPONDENT NEMITZ HAD AN
AVERAGE MONTHLY COMPENSATION OF $583.34 REPRESENTING PRE-CONSOLIDATION
WORK ON SEVERAL SECTIONS OF THE TOLEDO DIVISION.  UNDER THE SEC.
5(2)(F) AGREEMENT GOVERNING THE CONSOLIDATION, HIS EARNINGS WOULD BE
SUPPLEMENTED TO THE EXTENT THAT HIS POST-CONSOLIDATION MONTHLY EARNINGS
FELL SHORT OF $583.34.  UNDER THE 1965 AGREEMENT HIS AVERAGE MONTHLY
COMPENSATION, BASED SOLELY ON HIS WORK ON THE SANDUSKY LINE, WOULD BE
194.40.  EVEN THIS AMOUNT WOULD NOT BE PAID IF, AS LIKELY, HE RECEIVED
THAT MUCH IN UNEMPLOYMENT COMPENSATION.  THE 1965 AGREEMENT OBVIOUSLY
PLACED THESE JUNIOR EMPLOYEES "IN A WORSE POSITION WITH RESPECT TO
COMPENSATION,, AS THOSE WORDS ARE USED IN THE PRE-CONSOLIDATION
AGREEMENT.  FOR THEY NO LONGER COULD WORK ON ANY PART OF THE FORMER
TOLEDO DIVISION EXCEPT THE SANDUSKY LINE AND THEIR PRIOR COMPENSATION,
REFLECTING IN PART WORK ON OTHER PARTS OF THE TOLEDO DIVISION, WAS NO
LONGER A MEASURE OF THE "COMPENSATION" TO WHICH THEY WERE ENTITLED
UNDER THE PRE-CONSOLIDATION AGREEMENT.  FOR THOSE WHOSE HISTORICAL
AVERAGE MONTHLY EARNINGS WERE SO SLIGHT THAT THEY WERE NOW ON
UNEMPLOYMENT INSURANCE, THE RESULT WOULD BE MUCH MORE DRASTIC THAN
"NORMAL ATTRITION," WHICH THE COMMISSION SAID WAS THE ONLY WAY UNDER
THE PROTECTIVE CONDITIONS BY WHICH JOBS WOULD BE ELIMINATED.  THE COURT
OF APPEALS SAID: 

"AN AGREEMENT MADE PURSUANT TO THE LAST SENTENCE OF SEC. 5(2)(F) MAY
VARY THE PROTECTIONS AFFORDED BY THE I.C.C. ORDER, BUT IT MAY NOT
SUBSTANTIALLY ABROGATE EMPLOYEES' RIGHTS GROUNDED IN AN I.C.C. ORDER." 
436 F.2D,AT 848. 

WE AGREE WITH THAT VIEW.  WE ALSO AGREE THAT THE 1965 IMPLEMENTING
AGREEMENT /5/  ABROGATED THE STANDARD OF "COMPENSATION" COVERED BY THE
PRE-CONSOLIDATION AGREEMENT /6/  WHICH HAD COME UNDER THE PROTECTIVE
ORDER OF THE COMMISSION. 

THE JUDGMENT BELOW IS THEREFORE

             AFFIRMED. 

/1/  IT PROVIDES: 

"AS A CONDITION OF ITS APPROVAL, UNDER THIS PARAGRAPH, OF ANY
TRANSACTION INVOLVING A CARRIER OR CARRIERS BY RAILROAD SUBJECT TO THE
PROVISIONS OF THIS CHAPTER, THE COMMISSION SHALL REQUIRE A FAIR AND
EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS OF THE RAILROAD
EMPLOYEES AFFECTED.  IN ITS ORDER OF APPROVAL THE COMMISSION SHALL
INCLUDE TERMS AND CONDITIONS PROVIDING THAT DURING THE PERIOD OF FOUR
YEARS FROM THE EFFECTIVE DATE OF SUCH ORDER SUCH TRANSACTION WILL NOT
RESULT IN EMPLOYEES OF THE CARRIER OR CARRIERS BY RAILROAD AFFECTED BY
SUCH ORDER BEING IN A WORSE POSITION WITH RESPECT TO THEIR EMPLOYMENT,
EXCEPT THAT THE PROTECTION AFFORDED TO ANY EMPLOYEE PURSUANT TO THIS
SENTENCE SHALL NOT BE REQUIRED TO CONTINUE FOR A LONGER PERIOD,
FOLLOWING THE EFFECTIVE DATE OF SUCH ORDER, THAN THE PERIOD DURING
WHICH SUCH EMPLOYEE WAS IN THE EMPLOY OF SUCH CARRIER OR CARRIERS PRIOR
TO THE EFFECTIVE DATE OF SUCH ORDER.  NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS ACT, AN AGREEMENT PERTAINING TO THE PROTECTION OF
THE INTERESTS OF SAID EMPLOYEES MAY HEREAFTER BE ENTERED INTO BY ANY
CARRIER OR CARRIERS BY RAILROAD AND THE DULY AUTHORIZED REPRESENTATIVE
OR REPRESENTATIVES OF ITS OR THEIR EMPLOYEES." 

/2/  THE COMMISSION STATED IN ITS REPORT, 324 I.C.C. 1, 50: 

"AS PREVIOUSLY STATED HEREIN AND IN APPENDIX A, VARIOUS AGREEMENTS
HAVE BEEN REACHED BETWEEN EMPLOYEE REPRESENTATIVES AND THE NORFOLK &
WESTERN FOR THE PROTECTION OF EMPLOYEES ADVERSELY AFFECTED BY THESE
TRANSACTIONS.  OUR AUTHORIZATIONS HEREIN WILL, BY REFERENCE, BE MADE
SUBJECT TO SUCH AGREEMENTS . . . . 

"WE FIND THAT, AS CONDITIONED HEREIN, THE TRANSACTIONS UNDER
CONSIDERATION MEET THE REQUIREMENTS PRESCRIBED BY SECTIONS 5(2) AND 20A
OF THE ACT AND CONFORM GENERALLY WITH THE PURPOSES AND OBJECTIVES OF
THE NATIONAL TRANSPORTATION POLICY DECLARED BY CONGRESS.  WE ARE
CONVINCED THAT THE TRANSACTIONS SHOULD BE APPROVED." 

IN THE APPENDIX TO ITS REPORT AND ORDER, 324 I.C.C.,AT 89, THE
COMMISSION CONTINUED. 

"NORFOLK & WESTERN HAS ENTERED INTO AN AGREEMENT WITH 19 OF THE
PRINCIPAL LABOR ORGANIZATIONS, MEMBERS OF THE RAILWAY LABOR EXECUTIVES'
ASSOCIATION, FOR THE PROTECTION OF EMPLOYEES OF NORFOLK & WESTERN,
NICKEL PLATE, AND WABASH, AS WELL AS PERSONS EMPLOYED ON THE SANDUSKY
LINE OF PENNSYLVANIA, REPRESENTED BY THESE ORGANIZATIONS.  THIS
AGREEMENT, WHICH PROVIDES FOR THE ASSUMPTION BY NORFOLK & WESTERN OF
ALL OUTSTANDING LABOR CONTRACTS, SCHEDULES AND AGREEMENTS OF NICKEL
PLATE AND WABASH, AS WELL AS THOSE HAVING APPLICATION ON THE SANDUSKY
LINE, BASICALLY REQUIRES THAT JOB ELIMINATIONS AS A RESULT OF THE
UNIFICATION BE ACCOMPLISHED ONLY THROUGH NORMAL ATTRITION.  UNDER ITS
TERMS, NORFOLK & WESTERN AGREES TO TAKE INTO ITS EMPLOYMENT, UPON
CONSUMMATION OF THE MERGER, LEASE, AND PURCHASE, ALL EMPLOYEES OF THE
LINES INVOLVED WITH THE GUARANTEE THAT THEY WILL NOT BE ADVERSELY
AFFECTED IN THEIR EMPLOYMENT AS A RESULT OF THE PROPOSED TRANSACTIONS
OR FOR ANY REASON OTHER THAN FURLOUGHS DUE TO SEASONAL REQUIREMENTS OR
A DECLINE IN VOLUME OF TRAFFIC OR REVENUE." 

/3/  THE RESULT, OF COURSE, WOULD BE THAT THERE WOULD BE NO BASIS
FOR JUDICIAL REVIEW OF THE ICC ORDER PURSUANT TO 28 U.S.C. 1336. 

/4/  A SYNOPSIS OF THE LEGISLATIVE HISTORY OF SEC. 5(2)(F) IS
CONTAINED IN AN APPENDIX TO OUR OPINION IN ST. JOE PAPER CO. V.
ATLANTIC COAST LINE R. CO., 347 U.S. 298, 315. 

/5/  THE AGREEMENT AUTHORIZED BY THE COMMISSION WHEN THE MERGER WAS
APPROVED WAS DESCRIBED AS FOLLOWS BY THE COMMISSION, APPENDIX TO REPORT
AND ORDER OF INTERSTATE COMMERCE COMMISSION, 324 I.C.C.,AT 89: 

"THE AGREEMENT ALSO AUTHORIZED NORFOLK & WESTERN TO TRANSFER THE
WORK OF EMPLOYEES THROUGHOUT THE MERGED SYSTEM AND REQUIRES THE LABOR
ORGANIZATIONS TO ENTER INTO IMPLEMENTING AGREEMENTS PERMITTING
EMPLOYEES EITHER TO FOLLOW THEIR WORK OR BE ASSIGNED TO OTHER JOBS
WITHIN THEIR CRAFT OR CLASS WITHIN THE SAME GENERAL LOCALITY AS
EXISTING JOBS, FOLLOWING A PERIOD OF RETRAINING, IF NECESSARY, AT
NORFOLK & WESTERN'S EXPENSE." 

/6/  THE UNION THAT NEGOTIATED THE IMPLEMENTING AGREEMENT DISAGREED
WITH THAT POSITION AS DID THE UNION'S NATIONAL BOARD OF APPEALS.  BOTH,
HOWEVER, PROCEEDED ON A MISTAKEN VIEW OF THE LAW. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

I AM SYMPATHETIC WITH THE RESPONDENTS AND WITH THE UNFORTUNATE
PREDICAMENT IN WHICH, LARGELY BY THEIR OWN ACTS, THEY FIND THEMSELVES. 
I FEEL, HOWEVER, THAT THE COURT'S DECISION TO THE EFFECT THAT FEDERAL
DISTRICT COURT JURISDICTION EXISTS HERE AND THAT THE JUDGMENT OF THE
COURT OF APPEALS IS TO BE AFFIRMED AMOUNTS ONLY TO A SYMPATHETICALLY
IMPOSED JUDICIAL CURE THAT IS NOT AUTHORIZED BY THE INTERSTATE COMMERCE
ACT, THAT IS VIOLATIVE OF CONGRESS' INTENT, AND THAT IGNORES UNUSUALLY
CLEAR LEGISLATIVE HISTORY.     IN JANUARY 1962 THE NORFOLK & WESTERN
AND THE RESPONDENTS' OWN BROTHERHOOD, AND OTHERS, ENTERED INTO AN
AGREEMENT FOR THE PROTECTION OF EMPLOYEES IN THE EVENT OF APPROVAL OF
THE ANTICIPATED MERGER.  THIS AGREEMENT, BY THE EXPRESS TERMS OF ITS
PARAGRAPH VIII, WAS DIRECTED TO "THE LAST SENTENCE OF SECTION 5(2)(F)
OF THE INTERSTATE COMMERCE ACT."  IN OCTOBER 1965 THE RAILROAD AND THE
UNION, AND OTHERS, ENTERED INTO AN IMPLEMENTING AGREEMENT.  IT THEN
FOLLOWS, IT SEEMS TO ME, THAT A NUMBER OF FACTORS DEMAND A RESULT
OPPOSITE TO THAT REACHED BY THE COURT: 

1.  THE VERY LANGUAGE OF THE STATUTE.  SECTION 5(2)(F) WAS ADDED TO
THE INTERSTATE COMMERCE ACT BY THE TRANSPORTATION ACT OF 1940, 54 STAT.
906.  IT IS THE ACT'S ONLY PROVISION RELATING TO EMPLOYEE BENEFITS. 
THE THRUST OF THE SUBSECION'S THIRD AND LAST SENTENCE, BEGINNING WITH
THE EXCLUSIONARY WORD "NOTWITHSTANDING," IS CRUCIAL HERE. 

THE FIRST SENTENCE DIRECTS THE INTERSTATE COMMERCE COMMISSION, AS A
CONDITION OF ITS APPROVAL OF ANY RAILROAD MERGER, TO "REQUIRE A FAIR
AND EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS OF THE RAILROAD
EMPLOYEES AFFECTED."  THE SECOND SENTENCE STATES THAT IN ITS ORDER OF
APPROVAL THE COMMISSION SHALL INCLUDE PROVISIONS PROTECTIVE FOR A FOUR
YEAR PERIOD.  THE THIRD SENTENCE THEN READS: 

"NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS ACT, AN AGREEMENT
PERTAINING TO THE PROTECTION OF THE INTERESTS OF SAID EMPLOYEES MAY
HEREAFTER BE ENTERED INTO BY ANY CARRIER OR CARRIERS BY RAILROAD AND
THE DULY AUTHORIZED REPRESENTATIVE OR REPRESENTATIVES OF ITS OR THEIR
EMPLOYEES.  

THIS PLAIN AND UNAMBIGUOUS "NOTWITHSTANDING" LANGUAGE, OBVIOUSLY AND
NECESSARILY DIRECTED TO AND AFFECTING ONLY THE TWO PRECEDING SENTENCES,
REQUIRES THAT AN AGREEMENT ENTERED INTO BY THE CARRIER AND THE
COLLECTIVE-BARGAINING REPRESENTATIVE BE CONTROLLING.  THE TWO PRECEDING
SENTENCES HAVE APPLICATION, THEREFORE, ONLY WHEN AN AGREEMENT
"PERTAINING TO THE PROTECTION OF THE INTERESTS OF SAID EMPLOYEES" IS
NOT EXECUTED.  IN THE CASE BEFORE US THE CARRIER AND THE BROTHERHOOD
DID EXECUTE AN AGREEMENT OF THE KIND SPECIFIED, AND THE
"NOTWITHSTANDING" LANGUAGE SHOULD COME INTO PLAY.  THE COURT TODAY
NULLIFIES THAT SENTENCE AND READS IT OUT OF THE ACT. 

2.  THE LEGISLATIVE HISTORY.  THIS HISTORY IS CLEARLY ANTAGONISTIC
TO RESPONDENTS' POSITION HERE.  THE TRANSPORTATION ACT OF 1940 WAS NO
ACCIDENT OR FLOOR-CONCEIVED LEGISLATION.  INDEED, SENATOR WHEELER WAS
LED TO "VENTURE THE ASSERTION THAT THE BILL WAS GIVEN MORE CAREFUL AND
MORE THOUGHTFUL CONSIDERATION THAN ANY OTHER BILL WHICH HAS EVER COME
BEFORE THE SENATE IN MY TIME."  86 CONG.REC.  11270.  IT EMERGED FROM
THE ECONOMICALLY DISTRESSED DAYS OF THE 1930'S, FROM THE WASHINGTON JOB
PROTECTION AGREEMENT OF 1936 (SEE HEARINGS ON H. R. 2531 BEFORE THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 76TH CONG., 1ST
SESS., VOL. 1, P. 231), AND FROM RECOMMENDATIONS OF PRESIDENT F. D.
ROOSEVELT'S COMMITTEE OF SIX (SEE HEARINGS, SUPRA, AT 259). 

WHAT IS NOW SEC. 5(2)(F) WAS NOT CONTAINED IN THE ORIGINAL HOUSE
VERSION (H. R. 4862, 76TH CONG., 1ST SESS.), OR IN THE ORIGINAL SENATE
VERSION (S. 2009, 76TH CONG., 1ST SESS.), OR, INDEED, IN THE DRAFT
CONTAINED IN THE INITIAL H. R. CONF. REP. NO. 2016 OF APRIL 26, 1940,
76TH CONG., 3D SESS.  IT SURFACED AS SEC. 7 OF THE REVISED DRAFT
SUBMITTED WITH THE SUPPLANTING H. R. CONF. REP. NO. 2832 OF AUGUST 7,
1940, 76TH CONG., 3D SESS.  THE NEW LANGUAGE REPLACED THE EARLIER
HARRINGTON AMENDMENT TO THE HOUSE VERSION.  THE REASONS FOR THE CHANGE
EFFECTED BY THE CONFEREES ARE SET FORTH ON PAGES 68-69 OF H. R. CONF.
REP. NO. 2832.  ALTHOUGH THE COMMENTS THERE DO NOT FOCUS ON THE
"NOTWITHSTANDING" SENTENCE, ITS PURPOSE AND SIGNIFICANCE ARE APPARENT
FROM THE DEBATES. 

REPRESENTATIVE HARRINGTON HAD SUCCEEDED IN AMENDING THE HOUSE BILL
TO INCLUDE A DIRECTIVE THAT THE COMMISSION APPROVE NO TRANSACTION
RESULTING IN UNEMPLOYMENT OR DISPLACEMENT OF EMPLOYEES.  84 CONG.REC. 
9882, 9886, 10127.  THE CONFERENCE COMMITTEE, HOWEVER, ELIMINATED ALL
EMPLOYEE-PROTECTION PROVISIONS.  WHEN THE BILL AGAIN REACHED THE HOUSE
FLOOR, MR. WADSWORTH PROPOSED THE RECOMMITMENT OF THE BILL WITH
INSTRUCTIONS, AMONG OTHERS, TO INCLUDE MERGER PROVISIONS AND THE
"NOTWITHSTANDING" SENTENCE, DRAFTED BY THE RAILROAD UNIONS THEMSELVES. 
86 CONG.REC.  5886.  AS TO THAT SENTENCE, CONGRESSMAN HARRINGTON, AN
ADVOCATE OF COMPULSORY EMPLOYEE PROTECTION, HAD SAID: 

"BUT THIS PROVISION ALSO CONTAINS A CLAUSE THAT PERMITS THE
INDUSTRY, THROUGH THE PROCESSES OF COLLECTIVE BARGAINING, TO WORK OUT
ITS PROBLEMS IN A DEMOCRATIC MANNER."  86 CONG.REC.  5871.  THE MOTION
TO RECOMMIT PASSED.  THE CONFERENCE COMMITTEE IN DUE COURSE THEN
REPORTED SEC. 5(2)(F) IN ITS PRESENT FORM.  CONGRESSMAN WOLVERTON, A
CONFEREE, SPOKE IN SUPPORT OF THE REVISED BILL: 

"AND, THEN THERE WAS ALSO FURTHER UNCERTAINTY IN THE OPINION OF SOME
REPRESENTATIVES OF RAILROAD LABOR AS TO WHETHER THE LANGUAGE OF THE
AMENDMENT MIGHT NOT PRECLUDE VOLUNTARY AGREEMENTS, BETWEEN MANAGEMENT
AND MEN BY COLLECTIVE BARGAINING, FROM BEING ENTERED INTO. 

     "I WANT, HOWEVER, TO MAKE IT CLEAR THAT NO ONE WHO EXPRESSED

  THE OPINIONS I HAVE MENTIONED THOUGHT FOR A MOMENT THAT ANY OF

  THESE POSSIBILITIES WERE EVER INTENDED BY THE SPONSORS OF THE

  AMENDMENT."  86 CONG.REC.  10189. 

AND CONGRESSMAN LEA REFERRED TO THE "NOTWITHSTANDING" SENTENCE AS "A
PROVISION CONFIRMING THE RIGHT OF EMPLOYEES TO ENTER INTO AGREEMENTS
WITH RAILROADS TO TAKE CARE OF THEM IN CASE OF UNEMPLOYMENT AS A RESULT
OF CONSOLIDATIONS."  86 CONG.REC.  10178. 

FOR ME, ALL THIS EVINCES A CLEAR AND POSITIVE INTENT ON THE PART OF
THE AUTHORS OF THIS LEGISLATION TO MAKE APPROPRIATE PROVISION FOR
EMPLOYEE PROTECTION, BUT EXPLICITLY TO WITHDRAW COMMISSION-DICTATED
PROTECTION WHENEVER THE CARRIER AND THE UNION, BEFORE MERGER,
VOLUNTARILY ARRIVE AT PROTECTIVE PROVISIONS SATISFACTORY TO THEM.  THIS
WAS THE PURPOSE OF THE "NOTWITHSTANDING" CLAUSE.  FURTHERMORE, IT IS IN
ACCORD WITH THE "STRONG FEDERAL LABOR POLICY AGAINST GOVERNMENTAL
INTERFERENCE WITH THE SUBSTANTIVE TERMS OF COLLECTIVE-BARGAINING
AGREEMENTS."  CHICAGO & NORTH WESTERN R. CO. V. UNITED TRANSPORTATION
UNION, 402 U.S. 570, 579 N. 11 (1971).  IN MY VIEW, THE COURT'S
DECISION TODAY, AND THE DECISIONS OF THE DISTRICT COURT AND THE COURT
OF APPEALS, OVERLOOK OR CHOOSE TO IGNORE THIS PURPOSE AND THIS
LEGISLATIVE HISTORY.  INSTEAD, A RESULT IS ACHIEVED THAT IS THE EXACT
OPPOSITE OF THE CONGRESSIONAL INTENT AND POLICY. 

RESPONDENTS URGE THAT THIS COURT IN THE PAST HAS RECOGNIZED THE
COMMISSION'S RESPONSIBILITY TO REVIEW THE SUFFICIENCY OF THIRD-SENTENCE
VOLUNTARY AGREEMENTS AND TO "ADOPT" THEM AS PART OF ITS ORDERS, CITING
RAILWAY EXECUTIVES' ASSN. V. UNITED STATES, 339 U.S. 142 (1950), AND
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES V. UNITED STATES, 366 U.S.
169 (1961).  THESE ARE THE ONLY TWO DECISIONS THE COURT PRODUCES TO
SUPPORT ITS THEORY OF JURISDICTION.  NEITHER IS APPOSITE.  THE FORMER
CASE PRESENTED THE QUESTION WHETHER UNDER SENTENCE TWO THE COMMISSION
HAD THE POWER TO PRESCRIBE PROTECTIVE PROVISIONS EXTENDING BEYOND THE
FOUR-YEAR PERIOD TO WHICH THAT SENTENCE REFERS.  THE HOLDING WAS IN THE
AFFIRMATIVE.  THE COURT NOW MAKES MUCH OF THE LANGUAGE OF "MANDATORY
PROTECTION" IN THAT DECISION.  BUT NO PRE-MERGER VOLUNTARY AGREEMENT
HAD BEEN MADE THERE, AND THE EFFECT OF SENTENCE THREE DID NOT ENTER THE
CASE.  NOR HAD A PRE-MERGER AGREEMENT BEEN REACHED IN THE LATTER
MAINTENANCE OF WAY CASE, WHERE THE ISSUE WAS WHETHER, WHEN THE
COMMISSION FORMULATES ITS OWN PROTECTIVE PROVISION UNDER SENTENCE TWO,
IT MUST REQUIRE THE CARRIER TO RETAIN EMPLOYEES FOR THE FOUR-YEAR
PERIOD OR SIMPLY TO GUARANTEE THEM EQUIVALENT COMPENSATION.  THE
DISAGREEMENT BETWEEN THE PARTIES THERE AROSE AT THE COMMISSION HEARING
ON WHAT PROTECTIVE ARRANGEMENTS SHOULD BE IMPOSED BY THE COMMISSION IN
FULFILLMENT OF ITS SENTENCE TWO DUTY. 

THE COMMISSION SEEMS CONSISTENTLY TO HAVE TAKEN A POSITION IN LINE
WITH THE LEGISLATIVE HISTORY NOTED ABOVE, AND WITH THE CLEAR MEANING OF
THE "NOTWITHSTANDING" SENTENCE.  SEE, E.G., GREAT NORTHERN PACIFIC &
BURLINGTON LINES-MERGER-GREAT NORTHERN R. CO., 331 I.C.C. 228, 278
(1967); PENNSYLVANIA R. CO.-MERGER-NEW YORK CENTRAL R. CO., 327 I.C.C.
475, 544 (1966); NORFOLK & WESTERN R. CO. AND NEW YORK, CHICAGO & ST.
LOUIS R. CO.-MERGER, 324 I.C.C. 1, 9, 90 (1964); MISSOURI PACIFIC R.
CORP. IN NEBRASKA TRUSTEE OPERATION, 247 I.C.C. 653, 657 (1941). 

NEITHER RESPONDENTS NOR THE COURT POINTS TO A SINGLE INSTANCE IN
WHICH A PRE-MERGER VOLUNTARY PROTECTIVE AGREEMENT DIRECTED AT SEC.
5(2)(F) WAS EITHER REVIEWED AND FOUND WANTING BY THE COMMISSION, OR WAS
"INCLUDED" IN THE COMMISSION'S ORDER IN ANY SENSE EXCEPT THAT
RECOGNITION OF THE EXISTENCE OF SUCH AN ORDER IS NECESSARY FOR THE
COMMISSION TO RELIEVE ITSELF OF THE DUTY THAT WOULD OTHERWISE BE
IMPOSED ON IT BY SENTENCE TWO.  /1/ 

3.  THE EFFECT ON COLLECTIVE BARGAINING.  THE RESULT REACHED BY THE
COURT APPEARS TO ME TO REQUIRE THE ICC AND THE COURTS ALWAYS TO INTRUDE
UPON COLLECTIVE BARGAINING, BY REVIEWING THE SUFFICIENCY OF ITS
SUBSTANTIVE PRODUCT, AND THEREBY TO DISCOURAGE AND TO DOWNGRADE THE
COLLECTIVE-BARGAINING PROCESS THAT HAS BEEN SO FIRMLY ESTABLISHED IN
THIS AREA AND SO STEADFASTLY PROTECTED.  SEE, FOR EXAMPLE,
INTERNATIONAL ASSOCIATION OF MACHINISTS V. STREET, 367 U.S. 740
(1961).  AS THIS CASE MAKES ONLY TOO CLEAR, THE GENERAL STANDARD OF
SENTENCE TWO OF SEC. 5(2)(F), NAMELY, "A WORSE POSITION WITH RESPECT TO
THEIR EMPLOYMENT," PERMITS OF WIDELY VARYING INTERPRETATIONS WHEN
APPLIED TO SPECIFIC DILEMMAS SUCH AS THAT OF THE RESPONDENTS HERE.  THE
COURT'S HOLDING IMPLIES FOR ME THAT ANY AGREEMENT BETWEEN THE CARRIER
AND THE BROTHERHOOD PURSUANT TO SENTENCE THREE OF SEC. 5(2)(F), HOWEVER
PROTECTIVE, IS NEVERTHELESS NOT TO BE REGARDED AS CONTROLLING IF IT IS
SUBSEQUENTLY DEEMED LESS PROTECTIVE THAN COMMISSIONERS OR JUDGES THINK
IT SHOULD HAVE BEEN.  NEITHER THE LANGUAGE NOR THE LEGISLATIVE HISTORY
WARRANTS OUR ESPOUSING SUCH JUDICIAL OVERVIEW. 

4.  THE FACTS AND THE ELEMENT OF CHOICE.  CONTRARY TO THE IMPRESSION
ONE MIGHT RECEIVE FROM A QUICK APPRAISAL OF EITHER THE OPINIONS BELOW
OR THAT OF THE COURT HERE, IT IS NOT AT ALL CLEAR THAT THE IMPLEMENTING
AGREEMENT TOOK FROM RESPONDENTS SOMETHING THEY HAD A REASONABLE
EXPECTATION OF RECEIVING WHEN THE MERGER WAS APPROVED.  ON ITS FACE,
THE APPLICATION TO RESPONDENTS OF THE 1962 AGREEMENT, THE LANGUAGE OF
WHICH ("PLACED IN A WORSE POSITION WITH RESPECT TO COMPENSATION")
REFLECTED THE GENERALITY OF SEC. 5(2)(F), IS AMBIGUOUS.  INTERPRETATION
OF THIS LANGUAGE NECESSARILY REQUIRES AN UNDERSTANDING OF THE PARTIES'
ORIGINAL INTENTIONS WITH RESPECT TO SANDUSKY LINE EMPLOYEES. 
RESPONDENTS WERE NOT WITHOUT A SUBSTANTIAL MEASURE OF SELECTION OF
THEIR FUTURE WORK AT THE TIME OF THE TRANSFER OF THE SANDUSKY LINE. 
THAT CHOICE WAS BETWEEN CONTINUED EMPLOYMENT WITH THE PENNSYLVANIA,
WITH SENIORITY ON ITS TOLEDO DIVISION MAINTAINED, OR ABANDONING A PART
OF THEIR WORKING TERRITORY AND CASTING THEIR LOT WITH NORFOLK & WESTERN
AS ACQUIRER OF THE SANDUSKY LINE.  HAD THEY CHOSEN TO STAY WITH THE
PENNSYLVANIA, AS IT APPEARS THE PARTIES TO THE AGREEMENT EXPECTED THEY
WOULD, RESPONDENTS WOULD NOT HAVE BROUGHT ON THEIR PRESENT PLIGHT.  FOR
PERSONAL REASONS SUCH AS, PERHAPS, RESIDENCE IN SANDUSKY (A FACTOR OF
LESS THAN IDEAL CONVENIENCE IN THE OFF-SEASON REGARDLESS OF THE CHOICE
THEY MADE), THEY CHOSE THE OTHER COURSE AND INCURRED THE RISKS BOTH OF
NEW EMPLOYMENT AND OF THE APPLICATION OF THE PROTECTIVE PROVISIONS TO
THEM UNDER THE UNEXPECTED CIRCUMSTANCES.  THIS SITUATION HIGHLIGHTS THE
WISDOM OF THE POLICY OF SEC. 5(2)(F), NAMELY, TO LEAVE THE SOLUTION OF
THEIR PROBLEM TO THEIR OWN BROTHERHOOD (THEIR BARGAINING REPRESENTATIVE
WITH THE NORFOLK & WESTERN AS WELL AS WITH THE PENNSYLVANIA), RATHER
THAN TO THE BENEVOLENT HINDSIGHT OF THE COMMISSION OR OF A COURT. 

ALL THIS PROPELS ME TO THE CONCLUSION THAT THE COMMISSION MAY NOT BE
HELD TO HAVE REVIEWED AND INCORPORATED THE 1962 AGREEMENT INTO ITS 1964
ORDER AUTHORIZING THE MERGER.  ALL IT DID WAS TO STATE THAT ITS DUTY TO
SEE TO THE PROTECTION OF EMPLOYEES UNDER SEC. 5(2)(F) WAS SATISFIED BY
THE EXECUTION OF THE 1962 AGREEMENT.  IT FOLLOWS THAT THERE WAS NO
DISTRICT COURT JURISDICTION AND THAT THE RESPONDENTS' COMPLAINT SHOULD
HAVE BEEN DISMISSED. 

MARTIN M. LUCENTE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE HOWARD J. TRIENENS AND JOHN M. CURPHEY. 

THOMAS J. MURRAY, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 

SOLICITOR GENERAL GRISWOLD, FRITZ R. KAHN, AND LEONARD S. GOODMAN
FILED A BRIEF FOR THE UNITED STATES ET AL. AS AMICI CURIAE URGING
REVERSAL. 
..END :
















ENGELMAN V. AMOS, 404 U.S. 23 


       ENGELMAN, DIRECTOR, DIVISION OF PUBLIC WELFARE, DEPT. OF

           INSTITUTIONS AND AGENCIES, ET AL. V. AMOS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NEW JERSEY

NO. 70-33.  DECIDED NOVEMBER 9, 1971. 


A NEW JERSEY REGULATION APPLICABLE TO PAYMENTS UNDER THE FEDERALLY
FINANCED AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM WAS CHALLENGED
ON INCOME-CALCULATION GROUNDS AND, SINCE IT AUTHORIZED PAYMENTS
DIRECTLY TO VENDORS WHO PROVIDE GOODS OR SERVICES TO BENEFICIARIES, ON
THE GROUND THAT IT CONFLICTED WITH SEC. 406 OF THE SOCIAL SECURITY
ACT.  THE DISTRICT COURT UPHELD THE CHALLENGES, ENJOINED ENFORCEMENT OF
THE REGULATION "INSOFAR AS IT VIOLATES THE FEDERAL STATUTE," AND
ORDERED THE STATE TO "REVISE THE REGULATION TO CONFORM TO THE FEDERAL
STATUTE."  HELD:  SECTION 406 DOES NOT PROHIBIT A STATE FROM MAKING
VENDOR PAYMENTS SOLELY FROM NONREIMBURSABLE STATE FUNDS. 

333 F.SUPP.  1109, AFFIRMED AS MODIFIED. 

PER CURIAM. 

THE MOTION OF APPELLEE AMOS FOR LEAVE TO PROCEED IN FORMA PAUPERIS
IS GRANTED. 

A THREE-JUDGE DISTRICT COURT HAS ENJOINED NEW JERSEY OFFICIALS FROM
ENFORCING A STATE REGULATION APPLICABLE TO PAYMENTS UNDER THE FEDERALLY
FINANCED PROGRAM FOR AID TO FAMILIES WITH DEPENDENT CHILDREN, TITLE IV
OF THE SOCIAL SECURITY ACT OF 1935, 49 STAT. 627, AS AMENDED, 42 U.S.C.
601-610. 

THE REGULATION IN QUESTION, SEC. 615 OF THE NEW JERSEY CATEGORICAL
ASSISTANCE BUDGET MANUAL, WOULD DENY AFDC BENEFITS TO THE EXTENT THAT A
FAMILY'S "TOTAL AVAILABLE ADJUSTED INCOME," CALCULATED WITHOUT
DEDUCTION FOR THE "INCOME DISREGARDS" SPECIFIED BY SEC. 402(A)(8) OF
THE FEDERAL ACT, 42 U.S.C. 602(A)(8), EXCEEDS A CEILING SPECIFIED BY
THE STATE.  THE REGULATION IS CHALLENGED ON THE GROUNDS (1) THAT IT IS
IN CONFLICT WITH SEC. 402(A)(8), AND (2) THAT IT FAILS TO PROVIDE THAT,
IN THE CALCULATION OF EARNED FAMILY INCOME WHICH IS TO BE COMPARED WITH
THE SEC. 615 CEILING, A STEPFATHER'S EARNINGS ARE NOT TO BE TAKEN INTO
ACCOUNT UNLESS THEY ARE "ACTUALLY AVAILABLE" FOR THE CURRENT USE OF THE
DEPENDENT CHILD, 45 CFR 233.20(A)(3)(II).  IT WAS ALSO SUGGESTED IN THE
PROCEEDINGS BELOW THAT SEC. 615.5 OF THE STATE REGULATION CONFLICTS
WITH SEC. 406(B) OF THE FEDERAL ACT, 42 U.S.C. 606(B), WHEN IT
AUTHORIZES PAYMENTS DIRECTLY TO VENDORS WHO PROVIDE GOODS OR SERVICES
TO BENEFICIARIES. 

THE DISTRICT COURT UPHELD THE CHALLENGE ON ALL THREE GROUNDS. 
JUDGMENT WAS ENTERED ENJOINING THE ENFORCEMENT OF SEC. 615 "INSOFAR AS
IT VIOLATES THE FEDERAL STATUTE" AND ORDERING THAT NEW JERSEY "REVISE
THE REGULATION TO CONFORM TO THE FEDERAL STATUTE."  THE STATE OFFICIALS
APPEAL. 

THE APPELLANTS AND ALSO THE UNITED STATES, IN ITS AMICUS CURIAE
BRIEF, APPROPRIATELY POINT OUT THAT THERE IS NOTHING IN THE FEDERAL
STATUTE THAT PROHIBITS A STATE FROM MAKING VENDOR PAYMENTS SO LONG AS
THEY ARE MADE FROM STATE FUNDS WITHOUT FEDERAL MATCHING.  THE STATUTE,
SEC. 406, MERELY DOES NOT PROVIDE FOR REIMBURSEMENT TO THE STATE FOR
PAYMENTS OF THAT KIND.  WE AGREE WITH THESE OBSERVATIONS BY THE
APPELLANTS AND THE AMICUS, AND THUS DISAGREE WITH THE DISTRICT COURT'S
CONCLUSION WITH RESPECT TO DIRECT PAYMENTS INSOFAR AS THOSE PAYMENTS
ARE MADE ENTIRELY WITH STATE FUNDS NOT REIMBURSABLE UNDER SEC. 406 OF
THE FEDERAL ACT.  WITH THIS LIMITATION IN THE APPLICATION OF ITS
GENERAL LANGUAGE, THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 
..END :



JENNINGS V. MAHONEY, 404 U.S. 25 


       JENNINGS V. MAHONEY, DIRECTOR, FINANCIAL RESPONSIBILITY

           DIVISION DEPARTMENT OF PUBLIC SAFETY OF UTAH

        APPEAL FROM THE SUPREME COURT OF UTAH

 NO. 71-5179.  DECIDED NOVEMBER 9, 1971 


APPELLANT, AN UNINSURED UTAH MOTORIST WHO WAS INVOLVED IN AN ACCIDENT
AND WHOSE LICENSE WAS SUSPENDED, ATTACKS UTAH'S MOTOR VEHICLE SAFETY
RESPONSIBILITY ACT AS NOT AFFORDING THE PROCEDURAL DUE PROCESS REQUIRED
BY BELL V. BURSON, 402 U.S. 535.  HOWEVER, ALTHOUGH THERE IS PLAINLY A
SUBSTANTIAL QUESTION WHETHER THE STATUTORY SCHEME ON ITS FACE AFFORDS
THE PROCEDURAL DUE PROCESS REQUIRED BY BELL V. BURSON, HERE, WHERE A
STATE COURT STAYED THE SUSPENSION ORDER PENDING COMPLETION OF JUDICIAL
REVIEW AND CONDUCTED A HEARING AT WHICH APPELLANT WAS GIVEN AN
OPPORTUNITY TO PRESENT EVIDENCE AND CROSS-EXAMINE WITNESSES, THERE WAS
NO DENIAL OF PROCEDURAL DUE PROCESS. 

26 UTAH 2D 128, 485 P.2D 1404, AFFIRMED. 

PER CURIAM. 

APPELLANT, A UTAH MOTORIST, WAS INVOLVED IN A COLLISION.  BOTH
DRIVERS AND A POLICE OFFICER WHO INVESTIGATED THE ACCIDENT FILED
ACCIDENT REPORTS WITH UTAH'S DEPARTMENT OF PUBLIC SAFETY AS REQUIRED BY
THE UTAH MOTOR VEHICLE SAFETY RESPONSIBILITY ACT.  WITHOUT AFFORDING
APPELLANT A HEARING ON FAULT, AND BASED SOLELY ON THE CONTENTS OF THE
ACCIDENT REPORTS, THE DIRECTOR OF THE FINANCIAL RESPONSIBILITY DIVISION
DETERMINED THAT THERE WAS A REASONABLE POSSIBILITY THAT APPELLANT WAS
AT FAULT.  APPELLANT DID NOT CARRY LIABILITY INSURANCE AND WAS UNABLE
TO POST SECURITY TO SHOW FINANCIAL RESPONSIBILITY.  THE DIRECTOR
THEREFORE SUSPENDED HER LICENSE.  A UTAH DISTRICT COURT SUSTAINED THE
DIRECTOR, AND THE SUPREME COURT OF UTAH AFFIRMED.  26 UTAH 2D 128, 485
P.25D 1404 (1971). 

THE PROCEEDINGS WERE AUTHORIZED UNDER UTAH CODE ANN. SECS. 41-12
2(B) AND 41-6-35 (1953).  APPELLANT ATTACKS THE STATUTORY SCHEME AS NOT
AFFORDING THE PROCEDURAL DUE PROCESS REQUIRED BY OUR DECISION IN BELL
V. BURSON, 402 U.S. 535 (1971).  WE THERE HELD THAT THE GEORGIA VERSION
OF A MOTOR VEHICLE RESPONSIBILITY LAW WAS CONSTITUTIONALLY DEFICIENT
FOR FAILURE TO AFFORD THE UNINSURED MOTORIST PROCEDURAL DUE PROCESS. 
WE HELD THAT, ALTHOUGH A DETERMINATION THAT THERE WAS A REASONABLE
POSSIBILITY THAT THE MOTORIST WAS AT FAULT IN THE ACCIDENT SUFFICED,
"BEFORE THE STATE MAY DEPRIVE (HIM) OF HIS DRIVER'S LICENSE AND VEHICLE
REGISTRATION," THE STATE MUST PROVIDE "A FORUM FOR THE DETERMINATION OF
THE QUESTION" AND A "MEANINGFUL . . . 'HEARING APPROPRIATE TO THE
NATURE OF THE CASE.'"  ID., AT 541, 542.  APPELLANT SUBMITS THAT UTAH'S
STATUTORY SCHEME FALLS SHORT OF THESE REQUIREMENTS IN TWO RESPECTS:
(1) BY NOT REQUIRING A STAY OF THE DIRECTOR'S ORDER PENDING
DETERMINATION OF JUDICIAL REVIEW, THE SCHEME LEAVES OPEN THE
POSSIBILITY OF SUSPENSION OF LICENSES WITHOUT PRIOR HEARING; (2) IN
CONFINING JUDICIAL REVIEW TO WHETHER THE DIRECTOR'S DETERMINATION IS
SUPPORTED BY THE ACCIDENT REPORTS, AND NOT AFFORDING THE MOTORIST AN
OPPORTUNITY TO OFFER EVIDENCE AND CROSS-EXAMINE WITNESSES, THE MOTORIST
IS NOT AFFORDED A "MEANINGFUL"  HEARING. 

THERE IS PLAINLY A SUBSTANTIAL QUESTION WHETHER THE UTAH STATUTORY
SCHEME ON ITS FACE AFFORDS THE PROCEDURAL DUE PROCESS REQUIRED BY BELL
V. BURSON.  THIS CASE DOES NOT, HOWEVER, REQUIRE THAT WE ADDRESS THAT
QUESTION.  THE DISTRICT COURT IN FACT AFFORDED THIS APPELLANT SUCH
PROCEDURAL DUE PROCESS.  THAT COURT STAYED THE DIRECTOR'S SUSPENSION
ORDER PENDING COMPLETION OF JUDICIAL REVIEW, AND CONDUCTED A HEARING AT
WHICH APPELLANT WAS AFFORDED THE OPPORTUNITY TO PRESENT EVIDENCE AND
CROSS-EXAMINE WITNESSES.  BOTH APPELLANT AND THE DIRECTOR TESTIFIED AT
THAT HEARING.  THE TESTIMONY OF THE INVESTIGATING POLICE OFFICER WOULD
ALSO HAVE BEEN HEARD EXCEPT THAT APPELLANT'S SERVICE OF A SUBPOENA UPON
HIM TO APPEAR WAS NOT TIMELY UNDER THE APPLICABLE COURT RULES. 

THE JUDGMENT OF THE UTAH SUPREME COURT IS

              AFFIRMED. 
..END :




















DOHERTY V. UNITED STATES, 404 U.S. 28 


       DOHERTY V. UNITED STATES

        ON APPLICATION FOR APPOINTMENT OF COUNSEL

        NO. 71-5679.  DECIDED NOVEMBER 9, 1971 


THE COURT OF APPEALS (APPARENTLY ON THE BASIS OF THE INAPPLICABILITY
OF A COURT RULE) DENIED A MOTION, WHICH PETITIONER AS A CLAIMED
INDIGENT FILED AFTER HIS CONVICTION WAS AFFIRMED, FOR APPOINTMENT OF
COUNSEL TO ASSIST IN PREPARING A PETITION FOR A WRIT OF CERTIORARI. 
THE CASE IS REMANDED FOR RECONSIDERATION OF PETITIONER'S MOTION IN THE
LIGHT OF CRIMINAL JUSTICE ACT PROVISIONS THAT MIGHT BE RELEVANT
THERETO. 

CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

APPLICANT DOHERTY WAS CONVICTED IN FEDERAL COURT OF SMUGGLING
MARIHUANA.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED. 
DOHERTY'S RETAINED COUNSEL, WHO HAD REPRESENTED HIM BOTH AT TRIAL AND
ON APPEAL, WITHDREW AFTER THE APPELLATE DECISION BECAUSE DOHERTY WAS
WITHOUT FUNDS TO PAY FOR LEGAL SERVICES.  WITHOUT OPINION THE COURT OF
APPEALS DENIED DOHERTY'S PRO SE MOTION FOR APPOINTMENT OF COUNSEL TO
ASSIST IN PREPARING A PETITION FOR WRIT OF CERTIORARI.  DOHERTY HAS NOW
FILED A MOTION IN THIS COURT SEEKING APPOINTMENT OF COUNSEL FOR THAT
PURPOSE.  WE TREAT THE MOTION FOR APPOINTMENT OF COUNSEL AS A PETITION
FOR WRIT OF CERTIORARI SEEKING REVIEW OF THE COURT OF APPEALS' ORDER
DENYING THE APPOINTMENT. 

THE COURT OF APPEALS HAS A RULE THAT COUNSEL APPOINTED FOR INDIGENT
APPELLANTS MUST, AFTER ADVERSE DECISION IN THE COURT OF APPEALS, INFORM
HIS CLIENT OF THE RIGHT TO SEEK REVIEW IN THIS COURT AND, IF THE CLIENT
SO DESIRES, PREPARE A PETITION FOR CERTIORARI.  /1/  IN DENYING
DOHERTY'S MOTION FOR COUNSEL, THE COURT OF APPEALS APPARENTLY
DETERMINED THAT ITS RULE WAS OF NO HELP TO DOHERTY, WHOSE COUNSEL HAD
BEEN RETAINED RATHER THAN APPOINTED.  WE DEFER TO THAT COURT'S
CONSTRUCTION OF ITS OWN RULE.  HOWEVER, IT IS NOT CLEAR THAT THE COURT
ALSO CONSIDERED DOHERTY'S MOTION IN THE LIGHT OF THE PROVISIONS OF THE
CRIMINAL JUSTICE ACT OF 1964 INSOFAR AS THEY MAY BE RELEVANT TO A
FEDERAL PRISONER'S RIGHT TO HAVE COUNSEL'S HELP IN SEEKING CERTIORARI
IN THIS COURT.  18 U.S.C. 3006AC), 3006AD)(6), 3006AG).  SEE ALSO H. R.
REP. NO. 1709, 88TH CONG., 2D SESS., 7 (1964); REPORT OF THE
PROCEEDINGS OF A SPECIAL SESSION OF THE JUDICIAL CONFERENCE OF THE
UNITED STATES, 36 F.R.D. 282, 291 (1965); FED. RULE CRIM. PROC. 44(A). 
IN ORDER THAT THE COURT OF APPEALS MAY GIVE FURTHER CONSIDERATION TO
THE REQUEST FOR COUNSEL, DOHERTY'S MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS IS GRANTED, THE PETITION FOR CERTIORARI IS GRANTED, THE
JUDGMENT OF THE COURT OF APPEALS AFFIRMING DOHERTY'S CONVICTION AND ITS
ORDER DENYING APPOINTMENT OF COUNSEL ARE VACATED, AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION, INCLUDING RE-ENTRY OF ITS JUDGMENT OF AFFIRMANCE AND
APPROPRIATE RECONSIDERATION OF THE MOTION FOR APPOINTMENT OF COUNSEL. 

              SO ORDERED. 

/1/  THE NINTH CIRCUIT RULE PROVIDES: 

"FOLLOWING DECISION ON APPEAL, IF THE APPEAL IS UNSUCCESSFUL,
COUNSEL APPOINTED SHALL ADVISE THE DEFENDANT OF HIS RIGHT TO INITIATE A
FURTHER REVIEW BY THE FILING OF A PETITION FOR CERTIORARI, AND, IF
REQUESTED TO DO SO BY THE DEFENDANT, FILE SUCH PETITION.  IF THE
DEFENDANT DOES NOT DESIRE TO SEEK CERTIORARI, COUNSEL SHALL FILE WITH
THE CLERK A STATEMENT TO THAT EFFECT, SIGNED BY COUNSEL AND THE
DEFENDANT.  IF THE DEFENDANT REFUSES TO SIGN, COUNSEL SHALL SO STATE." 
RULES OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, APP.
4(C). 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE CONCURRING COMPLETELY IN THE COURT'S PER CURIAM, I BELIEVE
ADDITIONAL DETAIL CLARIFYING THE APPLICABILITY OF FED. RULE CRIM. PROC.
44 AND THE CRIMINAL JUSTICE ACT /1/ TO THESE CIRCUMSTANCES IS WARRANTED
INASMUCH AS ALL OF THE CIRCUITS' RULES IMPLEMENTING THE LATTER ARE
SUSCEPTIBLE OF REPLICATIONS OF THE RESULT REACHED BELOW.  /2/  RULE 44
AND THE CRIMINAL JUSTICE ACT EACH ESTABLISH A FEDERAL POLICY OF
PROVIDING EVERY INDIGENT FEDERAL ACCUSED WITH APPOINTED COUNSEL AT
EVERY STAGE IN HIS DEFENSE FROM ARRAIGNMENT THROUGH DIRECT REVIEW BY
THIS COURT, INCLUDING PETITIONING FOR CERTIORARI. 

        I

        RULE 44 

THE ACT OF JUNE 29, 1940, 54 STAT. 688, /3/  AUTHORIZED THE SUPREME
COURT TO PRESCRIBE UNIFORM CRIMINAL PROCEDURES IN THE FEDERAL COURTS
PRIOR TO AND INCLUDING VERDICT.  BY AN ORDER OF THE COURT ON DECEMBER
26, 1944 (323 U.S. 821), SUCH RULES WERE ADOPTED, THEREAFTER
TRANSMITTED TO THE CONGRESS, AND BECAME EFFECTIVE ON MARCH 21, 1946. 
THESE CONTAINED THE FORERUNNER OF THE PRESENT RULE 44, WHICH PROVIDED: 

 "ASSIGNMENT OF COUNSEL.  IF THE DEFENDANT APPEARS IN COURT

  WITHOUT COUNSEL, THE COURT SHALL ADVISE HIM OF HIS RIGHT TO

  COUNSEL AND ASSIGN COUNSEL TO REPRESENT HIM AT EVERY STAGE OF THE

  PROCEEDING UNLESS HE ELECTS TO PROCEED WITHOUT COUNSEL OR IS ABLE

  TO OBTAIN COUNSEL." 

THIS PROCEDURE EMBODIED OUR HOLDING IN JOHNSON V. ZERBST, 304 U.S.
458 (1938), THAT FEDERAL INDIGENT DEFENDANTS HAD A RIGHT UNDER THE
SIXTH AMENDMENT TO FREE COUNSEL DURING TRIAL.  UNTIL JOHNSON V. UNITED
STATES, 352 U.S. 565 (1957), IT WAS UNCLEAR WHETHER RULE 44 EXTENDED
THAT ASSISTANCE TO DIRECT APPEALS OF CONVICTIONS ARISING IN THE FEDERAL
COURTS.  IN ANY EVENT BY THE LAST DECADE THE SWEEP OF OUR DECISIONS
INVOLVING RIGHT TO COUNSEL ON APPEAL REQUIRED REVISION OF RULE 44 TO
MAKE CLEAR THAT "EVERY STAGE OF THE PROCEEDINGS" DID, IN FACT, INCLUDE
APPEALS.  /4/  THUS, THE REVISED RULE EFFECTIVE SINCE 1966 NOW READS: 

     "EVERY DEFENDANT WHO IS UNABLE TO OBTAIN COUNSEL SHALL BE

ENTITLED TO HAVE COUNSEL ASSIGNED TO REPRESENT HIM AT EVERY STAGE

  OF THE PROCEEDINGS FROM HIS INITIAL APPEARANCE BEFORE THE

  COMMISSIONER OR THE COURT THROUGH APPEAL, UNLESS HE WAIVES SUCH

  APPOINTMENT." 

FED. RULE CRIM. PROC. 44(A). 

WHETHER "APPEAL" INCLUDES PROCEEDINGS BEFORE THE SUPREME COURT WAS
NOT ADDRESSED BY THE ADVISORY COMMITTEE'S NOTE AND WAS UNTIL NOW AN
ACADEMIC QUESTION SINCE THE RULE BECAME EFFECTIVE AFTER THE
IMPLEMENTATION OF THE CRIMINAL JUSTICE ACT UNDER WHICH COURTS OF
APPEALS HAVE UNIFORMLY ADOPTED PROCEDURES ROUTINELY TO EXTEND APPOINTED
COUNSEL'S DUTY TO PREPARATION OF CERTIORARI PETITIONS DESIRED BY THEIR
CLIENTS.  BECAUSE THIS COURT HAS TRADITIONALLY APPOINTED COUNSEL FOR
THOSE INDIGENTS WHOSE CERTIORARI PETITIONS ARE GRANTED, THE ONLY GAP IN
COVERAGE WOULD ARISE WHERE, AS HERE, A REQUEST FOR APPOINTMENT IS MADE
TO THE COURT OF APPEALS AFTER IT HAS DECIDED AN INDIGENT'S APPEAL. 

IT IS SIGNIFICANT THAT THE LANGUAGE OF THE AMENDED RULE DOES EXTEND
ASSISTANCE TO "APPEALS" AND DOES NOT RESTRICT "APPEALS" TO PROCEEDINGS
IN "COURTS OF APPEALS."  MOREOVER, NO QUALIFICATION SUCH AS "FIRST
APPEAL" IS PRESENT.  ADDITIONALLY, TO THE EXTENT THAT THE ADVISORY
COMMITTEE'S SUGGESTED READING SHEDS LIGHT ON ITS THINKING, ITS NOTE
REFERS TO A LAW REVIEW ARTICLE WHICH ARGUES FOR MANDATORY APPOINTMENTS
IN ALL STAGES OF THE FEDERAL CRIMINAL PROCESS, /5/  INCLUDING PETITIONS
FOR CERTIORARI.  THAT IS THE OBVIOUS DISPOSITION TO BE MADE OF ANY
AMBIGUITY. 

       II

        CRIMINAL JUSTICE ACT 

AN INDEPENDENT SOURCE OF THE FEDERAL STATUTORY POLICY OF CONTINUOUS
REPRESENTATION OF INDIGENTS DURING THEIR DEFENSE IN THE FEDERAL
CRIMINAL PROCESS IS THE CRIMINAL JUSTICE ACT OF 1964.  AS DOES RULE 44,
THE ACT PROVIDES AN AUTOMATIC RIGHT TO COUNSEL ONLY IN PROSECUTIONS
ORIGINATING IN THE DISTRICT COURTS AND DURING DIRECT REVIEW THEREFROM. 
UNLIKE RULE 44, THE ACT ALSO AUTHORIZES DISCRETIONARY APPOINTMENT OF
COUNSEL IN THE "INTERESTS OF JUSTICE" TO ANY PAUPER "SUBJECT TO
REVOCATION OF PAROLE, IN CUSTODY AS A MATERIAL WITNESS, OR SEEKING
RELIEF UNDER SECTION 2241, 2254, OR 2255 OF TITLE 28 OR SECTION 4245 OF
TITLE 18."  /6/  18 U.S.C. 3006AG).  ANOTHER IMPORTANT DIFFERENCE
BETWEEN THE ACT AND RULE 44 IS THAT ONLY THE FORMER AUTHORIZES THE
DISBURSEMENT OF FEDERAL FUNDS TO REIMBURSE COURT-APPOINTED LAWYERS. 
/7/  FINANCIAL RELIEF TO THE BAR HAS BECOME INCREASINGLY NECESSARY AS
OUR DECISIONS HAVE EXPANDED INDIGENTS' RIGHTS TO COUNSEL. 

THE CLEAREST STATEMENT OF THE ACT'S POLICY OF PROVIDING BLANKET
COVERAGE OF INDIGENTS' REPRESENTATION FROM ARRAIGNMENT THROUGH REVIEW
BY THIS COURT IS FOUND IN THE FIRST SENTENCE OF SUBSECTION (C): 

"A PERSON FOR WHOM COUNSEL IS APPOINTED SHALL BE REPRESENTED AT
EVERY STAGE OF THE PROCEEDINGS FROM HIS INITIAL APPEARANCE BEFORE THE
UNITED STATES MAGISTRATE OR THE COURT THROUGH APPEAL, INCLUDING
ANCILLARY MATTERS."  18 U.S.C. 3006AC). 

THE AMBIGUOUS PHRASE "THROUGH APPEAL," HAS BEEN CLARIFIED BY A 1970
AMENDMENT TO ANOTHER SECTION.  18 U.S.C. 3006AD)(6) NOW PROVIDES: 

"IF A PERSON FOR WHOM COUNSEL IS APPOINTED UNDER THIS SECTION
APPEALS TO AN APPELLATE COURT OR PETITIONS FOR A WRIT OF CERTIORARI, HE
MAY DO SO WITHOUT PREPAYMENT OF FEES AND COSTS OR SECURITY THEREFOR AND
WITHOUT FILING THE AFFIDAVIT REQUIRED BY SECTION 1915(A) OF TITLE 28." 
84 STAT. 918.  /8/ 

MOST OF THE ORIGINAL CONGRESSIONAL HEARINGS AND FLOOR DEBATES CONCERN
THE WISDOM OF PUBLIC DEFENDER SERVICES IN CONTRAST TO THE MORE
CONVENTIONAL SYSTEM OF ROTATING APPOINTMENTS AMONG THE BAR.  NO
DISCUSSION WAS DIRECTED TO THE PRECISE QUESTION INVOLVED HERE. 
NONETHELESS, THERE ARE SEVERAL INDICIA THAT "APPEAL," AS USED IN SEC.
3006AC), WAS INTENDED TO INCLUDE PROCEEDINGS IN THIS COURT. 

DIFFERENT VERSIONS OF THE ACT-- ALL BASED UPON THE ATTORNEY
GENERAL'S COMMITTEE ON POVERTY AND THE ADMINISTRATION OF FEDERAL
CRIMINAL JUSTICE REPORT OF 1963-- WERE PASSED IN EACH OF THE HOUSES OF
CONGRESS.  A CONFERENCE COMMITTEE IRONED OUT THE DIFFERENCES AND ITS
HOUSE MEMBERS AFTERWARDS REPORTED CONCERNING THE PRESENT LANGUAGE OF
SUBSECTION (C): 

"IMPLIED IN THE SENATE VERSION, AND EXPRESSED IN THE HOUSE

 VERSION, IS THE RIGHT OF A DEFENDANT TO HAVE COUNSEL APPOINTED AT

  ANY STAGE OF THE PROCEEDING; I.E., BEFORE THE COMMISSIONER, THE

  DISTRICT COURT, THE COURT OF APPEALS, OR THE SUPREME COURT."  H.

  R. REP. NO. 1709, 88TH CONG., 2D SESS., 7 (9164). 

AT LEAST TWO EXCHANGES DURING THE FLOOR DEBATES MADE EXPLICIT THAT
PROCEEDINGS IN THIS COURT WERE WITHIN THE ACT'S COVERAGE.  /9/ 

MOREOVER, THE JUDICIAL CONFERENCE'S COMMITTEE TO IMPLEMENT THE
CRIMINAL JUSTICE ACT OF 1964 SUBMITTED IN 1965 AN INTERIM
RECOMMENDATION THAT: 

"(COUNSEL APPOINTED ON APPEAL SHOULD ADVISE THE DEFENDANT OF HIS
RIGHT TO INITIATE A FURTHER REVIEW BY THE FILING OF A PETITION FOR
CERTIORARI, AND TO FILE SUCH PETITION, IF REQUESTED BY THE DEFENDANT." 
REPORT ON CRIMINAL JUSTICE ACT, 36 F.R.D. 285, 291 (1965).  /10/ AS
MENTIONED EARLIER, THIS RECOMMENDATION HAS BEEN ADOPTED BY ALL OF THE
CIRCUIT CONFERENCES. 

AND OUR OWN RULES HAVE BEEN AMENDED TO IMPLEMENT OUR PARTICIPATION
UNDER THE ACT IN CASES WHERE WE GRANT CERTIORARI OR NOTE PROBABLE
JURISDICTION.  SUPREME COURT RULE 53(8). 

OTHER INDICATORS OF INTENT ARE FOUND IN THE ATTORNEY GENERAL'S
COMMITTEE STUDY.  ONE OF ITS RECOMMENDATIONS WAS THAT A LAWYER
APPOINTED BY THE TRIAL COURT SHOULD HAVE INCENTIVES TO REPRESENT THE
ACCUSED IN THE SUBSEQUENT STAGES OF THE CASE INCLUDING "ANY APPELLATE
PROCEEDINGS."  HEARINGS ON S. 1057 BEFORE THE SENATE COMMITTEE ON THE
JUDICIARY, 88TH CONG., 1ST SESS., 183, 205 (1963).  PRESUMABLY A
PURPOSE TO EXCISE THE STEP DURING WHICH CERTIORARI PETITIONS ARE
PREPARED WOULD HAVE AVOIDED THE PHRASE "ANY APPELLATE PROCEEDINGS" AND
SUBSTITUTED INSTEAD "PROCEEDINGS BEFORE THE COURTS OF APPEALS." 
MOREOVER, THE STUDY GROUP RECOMMENDED THAT THE ACT COVER PROBATION AND
PAROLE REVOCATION HEARINGS, A SUGGESTION ACCEPTED BY THE LEGISLATURE. 
ID., AT 210, 18 U.S.C. 3006AA).  IT IS DIFFICULT TO ASCRIBE TO CONGRESS
A PURPOSE TO EXTEND THE ASSISTANCE OF COUNSEL TO PAUPERS IN THESE
ANCILLARY MATTERS BUT TO WITHHOLD IT WHEN THEY PETITION FOR
CERTIORARI. 

IT IS CLEAR THAT THE HELP OF COUNSEL WAS MEANT TO BE AVAILABLE
DURING REVIEW BY THIS COURT BOTH IN FILING FOR CERTIORARI AND ON THE
MERITS.  IT CANNOT SERIOUSLY BE URGED AGAINST THIS BACKDROP, THAT
CONGRESS INTENDED TO LEAVE LAWYERLESS THOSE RELATIVELY INFREQUENT AND
IMPECUNIOUS PETITIONERS WHO REQUEST COUNSEL ONLY AFTER COURTS OF
APPEALS HAVE ADVERSELY DECIDED THEIR CLAIMS.  IN SUCH SITUATIONS AS
THIS ONE, THE JUDICIAL FUNCTION IS TO RESOLVE AMBIGUOUS STATUTORY
LANGUAGE IN LIGHT OF THE UNDERLYING PURPOSES OF THE MEASURE. 

SINCE THE APPLICANT IS ENTITLED TO COUNSEL TO AID IN HIS PREPARATION
OF HIS PETITION FOR WRIT OF CERTIORARI, THE ONLY QUESTION WHICH REMAINS
IS WHETHER IT IS THE DUTY OF THE COURT OF APPEALS OR OF THIS COURT TO
MAKE AN APPOINTMENT.  GIVEN THE EXISTING APPARATUS OF THE COURTS OF
APPEALS FOR THE PURPOSE OF APPOINTING COUNSEL FOR THEIR IMPOVERISHED
APPELLANTS, IT WOULD SEEM TO BE LITTLE BURDEN UPON THEM TO PROCESS
APPLICATIONS SUCH AS THIS ONE.  ALSO, LOCAL APPOINTMENTS WOULD
FACILITATE SWIFT FILINGS OF THOSE PETITIONS WITHIN THE TIME LIMITS
PRESCRIBED BY SUPREME COURT RULE 22(2).  THE CONCLUSION THAT THE DUTY
TO PROCESS THESE REQUESTS SHOULD LIE WITH THE COURTS OF APPEALS, RATHER
THAN THIS COURT, HAS BEEN SUGGESTED ELSEWHERE.  BOSKEY, THE RIGHT TO
COUNSEL IN APPELLATE PROCEEDINGS, 45 MINN.L.REV.  783 (1961). 

I JOIN THE COURT IN REMANDING THE CASE SO THAT THE COURT OF APPEALS
MAY RECONSIDER THE APPLICATION.  I AGREE THAT IT SHOULD ENTER A NEW
DECREE SO THAT DOHERTY'S TIME WITHIN WHICH HE MAY FILE HIS CERTIORARI
PAPERS MAY RUN ANEW. 

/1/  ACT OF AUG. 20, 1964, PUB. L. NO. 88-455, 78 STAT. 552.  AS
AMENDED BY ACT OF OCT. 14, 1970, PUB. L. NO. 91-447, 84 STAT. 916, THE
CRIMINAL JUSTICE ACT IS CODIFIED AT 18 U.S.C. 3006A. 

/2/  IT APPEARS THAT THE COURT OF APPEALS FOR THE SIXTH CIRCUIT HAS
FIRST ACCEPTED AND THEN REJECTED A SIMILAR INTERPRETATION OF ITS
ANALOGOUS RULE.  BEASLEY V. UNITED STATES, NO. 70-5146, O.T., 1971
(MOTION FOR REHEARING ON DENIAL OF CERTIORARI).  ALL OF THE CIRCUITS
BASED THEIR IMPLEMENTING RULES ON A DRAFT PROPOSAL MADE BY THE JUDICIAL
CONFERENCE'S COMMITTEE TO IMPLEMENT THE CRIMINAL JUSTICE ACT OF 1964,
DISCUSSED INFRA.  THE PLANS ADOPTED BY THE 11 CIRCUITS ARE REPRODUCED
IN 1A WEST'S FEDERAL FORMS, SUPREME COURT, SEC. 488 (B. BOSKEY ED.
1969).     /3/  THIS ACT AS AMENDED IS CODIFIED AT 18 U.S.C. 3771.  IN
1934 CONGRESS HAD DIRECTED THE SUPREME COURT TO PRESCRIBE PROCEDURES IN
CRIMINAL CASES IN FEDERAL DISTRICT COURTS AFTER A VERDICT OF GUILTY HAD
BEEN ENTERED.  ACT OF MAR. 8, 1934, 48 STAT. 399, AMENDING ACT OF FEB.
24, 1933, 47 STAT. 904, NOW CODIFIED AS AMENDED, 18 U.S.C. 3772.  THESE
EARLY RULES DID NOT ADDRESS THE ISSUE OF INDIGENTS'  REPRESENTATION ON
APPEAL OF CONVICTIONS.  292 U.S. 659.  TOGETHER THESE ACTS PROVIDE THE
SUPREME COURT WITH RULEMAKING AUTHORITY OVER ALL PROCEDURAL ASPECTS OF
THE FEDERAL CRIMINAL JUDICIAL PROCESS. 

/4/  TWO PRELIMINARY DRAFTS OF THE PROPOSED AMENDMENTS WERE PREPARED
BY THE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL
CONFERENCE.  THE FIRST, PROPOSED IN 1962, DID NOT EXPRESSLY PROVIDE FOR
APPOINTMENTS ON APPEAL.  SEE PRELIMINARY DRAFT OF PROPOSED AMENDMENTS
TO RULES OF CRIMINAL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS
(DEC. 1962).  THE SECOND DRAFT AS IT APPEARS IN THE TEXT WAS ISSUED IN
1964.  SECOND PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO RULES OF
CRIMINAL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS (MAR. 1964). 

/5/  BOSKEY, THE RIGHT TO COUNSEL IN APPELLATE PROCEEDINGS, 45
MINN.L.REV.  783 (1961). 

/6/  ONCE A DISCRETIONARY APPOINTMENT UNDER 18 U.S.C. 3006AG) HAS
BEEN MADE IN SUCH COLLATERAL MATTERS, AN INDIGENT IS AUTOMATICALLY
ENTITLED (AS IN PROSECUTIONS ON DIRECT REVIEW) TO COUNSEL'S AID IN
PETITIONING FOR CERTIORARI IN THE EVENT HIS APPEAL IS ADVERSELY DECIDED
BY THE COURT OF APPEALS.  SEE, FOR EXAMPLE, THE FIFTH CIRCUIT PLAN
UNDER THE CRIMINAL JUSTICE ACT, RULE 7(I)(4) AND (III)(4), 28 U.S.C.A.
(SUPP. 1972). 

/7/  18 U.S.C. 3006AD). 

/8/  THIS PROVISION WAS ADDED BY THE ACT OF OCT. 14, 1970, PUB. L.
NO. 91-447, 84 STAT. 916. 

/9/  ONE OF THE SPONSORS OF THE HOUSE BILL WAS CONGRESSMAN MOORE,
WHO REPLIED IN RESPONSE TO A QUESTION CONCERNING CEILINGS ON TOTAL FEES
A SINGLE ATTORNEY COULD BE PAID UNDER THE ACT, "MAY I ANSWER THAT BY
SAYING THE $500 LIMITATION APPLIES, IF THE APPOINTED ATTORNEY
REPRESENTS THE DEFENDANT BEFORE A COMMISSIONER AND ALL THE WAY TO THE
SUPREME COURT-- $500 IS THE TOTAL COMPENSATION ALLOWED."  110
CONGS.REC.  446.  SEE ALSO ID., AT 450 (REMARKS ON CONGS.  MOORE AND
KASTENMEIER). 

/10/  THE COMMITTEE REAFFIRMED THIS CONCLUSION AT THE SEPTEMBER 22
23, 1965, MEETING OF THE CONFERENCE.  REPORT OF THE PROCEEDINGS OF THE
JUDICIAL CONFERENCE OF THE UNITED STATES, SEPT. 22-23, 1965, P. 75. 
..END :










SUPT. OF INSURANCE V. BANKERS LIFE & CAS. CO., 404 U.S. 6 


       SUPERINTENDENT OF INSURANCE OF NEW YORK V. BANKERS LIFE &

           CASUALTY CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT. 

        NO. 70-60.  ARGUED OCTOBER 13, 1971-- DECIDED NOVEMBER 8,

           1971 


PETITIONER, LIQUIDATOR OF MANHATTAN CASUALTY CO., ALLEGED THAT THE
COMPANY WAS DEFRAUDED, IN VIOLATION OF FEDERAL SECURITIES LAWS, BY A
FRAUDULENT SALE OF SECURITIES OWNED BY IT.  MANHATTAN'S SOLE
STOCKHOLDER AGREED TO SELL ALL OF ITS MANHATTAN STOCK TO ONE BEGOLE FOR
$5 MILLION.  BEGOLE CONSPIRED WITH OTHERS TO USE UNITED STATES TREASURY
BONDS OWNED BY MANHATTAN TO PAY FOR THE SHARES.  THROUGH A DECEPTIVE
DEVICE THE BONDS WERE SOLD AND THE PROCEEDS USED IN THE PURCHASE OF THE
STOCK.  THE DEPLETION OF MANHATTAN'S ASSETS WAS CONCEALED BY THE
PURPORTED TRANSFER TO IT, IN EXCHANGE FOR THE PROCEEDS OF THE BOND
SALE, OF A CERTIFICATE OF DEPOSIT WHICH IN FACT HAD BEEN ASSIGNED BY
MANHATTAN'S NEW PRESIDENT, A CO-CONSPIRATOR, TO ANOTHER CORPORATION AND
BY IT USED AS COLLATERAL FOR A LOAN.  THE DISTRICT COURT DISMISSED THE
COMPLAINT AND THE COURT OF APPEALS AFFIRMED, FINDING THAT "NO INVESTOR
(WAS) INJURED" AND THAT THE "PURITY OF THE SECURITY TRANSACTION AND THE
PURITY OF THE TRADING PROCESS WAS UNSULLIED."  HELD:  SECTION 10(B) OF
THE SECURITIES EXCHANGE ACT OF 1934 MAKES IT UNLAWFUL TO USE "IN
CONNECTION WITH THE PURCHASE OR SALE" OF ANY SECURITY "ANY MANIPULATIVE
OR DECEPTIVE DEVICE OR CONTRIVANCE" IN CONTRAVENTION OF THE SECURITIES
AND EXCHANGE COMMISSION'S RULES AND REGULATIONS.  SECTION 10(B)
PROHIBITS THE USE OF ANY DECEPTIVE DEVICE IN THE "SALE" OF ANY SECURITY
BY "ANY PERSON," AND IT IS IRRELEVANT THAT MANHATTAN WAS A CORPORATION
RATHER THAN AN INDIVIDUAL INVESTOR; THAT THE FRAUD WAS PERPETRATED BY A
CORPORATE OFFICER AND HIS OUTSIDE COLLABORATORS; THAT THE TRANSACTION
WAS NOT CONDUCTED THROUGH A SECURITIES EXCHANGE OR AN ORGANIZED MARKET;
THAT THE PROCEEDS DUE THE SELLER WERE MISAPPROPRIATED; AND THAT THE
CREDITORS OF THE DEFRAUDED CORPORATE SELLER MAY BE THE ULTIMATE
VICTIMS.  PP. 9-14. 

430 F.2D 355, REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

MANHATTAN CASUALTY CO., NOW REPRESENTED BY PETITIONER, NEW YORK'S
SUPERINTENDENT OF INSURANCE, WAS, IT IS ALLEGED, DEFRAUDED IN THE SALE
OF CERTAIN SECURITIES IN VIOLATION OF SEC. 17(A) OF THE SECURITIES ACT
OF 1933, 48 STAT. 84, 15 U.S.C. 77QA), AND OF SEC. 10(B) OF THE
SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 891, 15 U.S.C. 78JB).  THE
DISTRICT COURT DISMISSED THE COMPLAINT, 300 F.SUPP.  1083, AND THE
COURT OF APPEALS AFFIRMED, BY A DIVIDED BENCH.  430 F.2D 355.  THE CASE
IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED, 401
U.S. 973. 

IT SEEMS THAT BANKERS LIFE & CASUALTY CO., ONE OF THE RESPONDENTS,
AGREED TO SELL ALL OF MANHATTAN'S STOCK TO ONE BEGOLE FOR $5,000,000. 
IT IS ALLEGED THAT BEGOLE CONSPIRED WITH ONE BOURNE AND OTHERS TO PAY
FOR THIS STOCK, NOT OUT OF THEIR OWN FUNDS, BUT WITH MANHATTAN'S
ASSETS.  THEY WERE ALLEGED TO HAVE ARRANGED, THROUGH GARVIN, BANTEL &
CO.-- A NOTE BROKERAGE FIRM-- TO OBTAIN A $5,000,000 CHECK FROM
RESPONDENT IRVING TRUST CO., ALTHOUGH THEY HAD NO FUNDS ON DEPOSIT
THERE AT THE TIME.  ON THE SAME DAY THEY PURCHASED ALL THE STOCK OF
MANHATTAN FROM BANKERS LIFE FOR $5,000,000 AND AS STOCKHOLDERS AND
DIRECTORS, INSTALLED ONE SWEENY AS PRESIDENT OF MANHATTAN. 

MANHATTAN THEN SOLD ITS UNITED STATES TREASURY BONDS FOR
$4,854,552.67.  /1/  THAT AMOUNT, PLUS ENOUGH CASH TO BRING THE TOTAL
TO $5,000,000, WAS CREDITED TO AN ACCOUNT OF MANHATTAN AT IRVING TRUST
AND THE $5,000,000 IRVING TRUST CHECK WAS CHARGED AGAINST IT.  AS A
RESULT, BEGOLE OWNED ALL THE STOCK OF MANHATTAN, HAVING USED $5,000,000
OF MANHATTAN'S ASSETS TO PURCHASE IT. 

TO COMPLETE THE FRAUDULENT SCHEME, IRVING TRUST ISSUED A SECOND
$5,000,000 CHECK TO MANHATTAN WHICH SWEENY, MANHATTAN'S NEW PRESIDENT,
TENDERED TO BELGIAN-AMERICAN BANK & TRUST CO. WHICH ISSUED A $5,000,000
CERTIFICATE OF DEPOSIT IN THE NAME OF MANHATTAN.  SWEENY ENDORSED THE
CERTIFICATE OF DEPOSIT OVER TO NEW ENGLAND NOTE CORP., A COMPANY
ALLEGED TO BE CONTROLLED BY BOURNE.  BOURNE ENDORSED THE CERTIFICATE
OVER TO BELGIAN-AMERICAN BANKING CORP. /2/  AS COLLATERAL FOR A
$5,000,000 LOAN FROM BELGIAN-AMERICAN BANKING TO NEW ENGLAND.  ITS
PROCEEDS WERE PAID TO IRVING TRUST TO COVER THE LATTER'S SECOND
$5,000,000 CHECK. 

THOUGH MANHATTAN'S ASSETS HAD BEEN DEPLETED, ITS BOOKS REFLECTED
ONLY THE SALE OF ITS GOVERNMENT BONDS AND THE PURCHASE OF THE
CERTIFICATE OF DEPOSIT AND DID NOT SHOW THAT ITS ASSETS HAD BEEN USED
BY BEGOLE TO PAY FOR HIS PURCHASE OF MANHATTAN'S SHARES OR THAT THE
CERTIFICATE OF DEPOSIT HAD BEEN ASSIGNED TO NEW ENGLAND AND THEN
PLEDGED TO BELGIAN-AMERICAN BANKING. 

MANHATTAN WAS THE SELLER OF TREASURY BONDS AND, IT SEEMS TO US,
CLEARLY PROTECTED BY SEC. 10(B), 15 U.S.C. 78JB), OF THE SECURITIES
EXCHANGE ACT, /3/  WHICH MAKES IT UNLAWFUL TO USE "IN CONNECTION WITH
THE PURCHASE OR SALE" OF ANY SECURITY "ANY MANIPULATIVE OR DECEPTIVE
DEVICE OR CONTRIVANCE" IN CONTRAVENTION OF THE RULES AND REGULATIONS OF
THE SECURITIES AND EXCHANGE COMMISSION.  /4/ 

THERE CERTAINLY WAS AN "ACT" OR "PRACTICE" WITHIN THE MEANING OF
RULE 10B-5 /5/  WHICH OPERATED AS "A FRAUD OR DECEIT" ON MANHATTAN, THE
SELLER OF THE GOVERNMENT BONDS.  TO BE SURE, THE FULL MARKET PRICE WAS
PAID FOR THOSE BONDS; BUT THE SELLER WAS DUPED INTO BELIEVING THAT IT,
THE SELLER, WOULD RECEIVE THE PROCEEDS.  WE CANNOT AGREE WITH THE COURT
OF APPEALS THAT "NO INVESTOR (WAS) INJURED" AND THAT THE "PURITY OF THE
SECURITY TRANSACTION AND THE PURITY OF THE TRADING PROCESS WERE
UNSULLIED."  430 F.2D,AT 361. 

SALE" OF ANY SECURITY /6/  OF "ANY MANIPULATIVE OR DECEPTIVE DEVICE OR
CONTRIVANCE."  THE ACT PROTECTS CORPORATIONS AS WELL AS INDIVIDUALS WHO
ARE SELLERS OF A SECURITY.  MANHATTAN WAS INJURED AS AN INVESTOR
THROUGH A DECEPTIVE DEVICE WHICH DEPRIVED IT OF ANY COMPENSATION FOR
THE SALE OF ITS VALUABLE BLOCK OF SECURITIES. 

THE FACT THAT THE FRAUD WAS PERPETRATED BY AN OFFICER OF MANHATTAN
AND HIS OUTSIDE COLLABORATORS IS IRRELEVANT TO OUR PROBLEM.  FOR SEC.
10(B) BANS THE USE OF ANY DECEPTIVE DEVICE IN THE "SALE" OF ANY
SECURITY BY "ANY PERSON."  AND THE FACT THAT THE TRANSACTION IS NOT
CONDUCTED THROUGH A SECURITIES EXCHANGE OR AN ORGANIZED OVER-THE
COUNTER MARKET IS IRRELEVANT TO THE COVERAGE OF SEC. 10(B).  HOOPER V.
MOUNTAIN STATES SECURITIES CORP., SEC. 10(B).  HOOPER V. MOUNTAIN
STATES SECURITIES CORP., 282 F.2D 195, 201.  LIKEWISE IRRELEVANT IS THE
FACT THAT THE PROCEEDS OF THE SALE THAT WERE DUE THE SELLER WERE
MISAPPROPRIATED.  /7/  AS THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
SAID IN THE HOOPER CASE, "CONSIDERING THE PURPOSE OF THIS LEGISLATION,
IT WOULD BE UNREALISTIC TO SAY THAT A CORPORATION HAVING THE CAPACITY
TO ACQUIRE $700,000 WORTH OF ASSETS FOR ITS 700,000 SHARES OF STOCK HAS
SUFFERED NO LOSS IF WHAT IT GAVE UP WAS $700,000 BUT WHAT IT GOT WAS
ZERO."  282 F.2D,AT 203. 

THE CONGRESS MADE CLEAR THAT "DISREGARD OF TRUST RELATIONSHIPS BY
THOSE WHOM THE LAW SHOULD REGARD AS FIDUCIARIES, ARE ALL A SINGLE
SEAMLESS WEB" ALONG WITH MANIPULATION.  INVESTOR'S IGNORANCE, AND THE
LIKE.  H. R. REP. NO. 1383, 73D CONG., 2D SESS., 6.  SINCE PRACTICES
"CONSTANTLY VARY AND WHERE PRACTICES LEGITIMATE FOR SOME PURPOSES MAY
BE TURNED TO ILLEGITIMATE AND FRAUDULENT MEANS, BROAD DISCRETIONARY
POWERS" IN THE REGULATORY AGENCY "HAVE BEEN FOUND PRACTICALLY
ESSENTIAL."  ID., AT 7.  HENCE WE DO NOT READ SEC. 10(B) AS NARROWLY AS
THE COURT OF APPEALS; IT IS NOT "LIMITED TO PRESERVING THE INTEGRITY OF
THE SECURITIES MARKETS" (430 F.2D,AT 361), THOUGH THAT PURPOSE IS
INCLUDED.  SECTION 10(B) MUST BE READ FLEXIBLY, NOT TECHNICALLY AND
RESTRICTIVELY.  SINCE THERE WAS A "SALE" OF A SECURITY AND SINCE FRAUD
WAS USED "IN CONNECTION WITH" IT, THERE IS REDRESS UNDER SEC. 10(B),
WHATEVER MIGHT BE AVAILABLE AS A REMEDY UNDER STATE LAW. 

WE AGREE THAT CONGRESS BY SEC. 10(B) DID NOT SEEK TO REGULATE
TRANSACTIONS WHICH CONSTITUTE NO MORE THAN INTERNAL CORPORATE
MISMANAGEMENT.  BUT WE READ SEC. 10(B) TO MEAN THAT CONGRESS MEANT TO
BAR DECEPTIVE DEVICES AND CONTRIVANCES IN THE PURCHASE OR SALE OF
SECURITIES WHETHER CONDUCTED IN THE ORGANIZED MARKETS OR FACE TO FACE. 
AND THE FACT THAT CREDITORS /8/  OF THE DEFRAUDED CORPORATE BUYER OR
SELLER OF SECURITIES MAY BE THE ULTIMATE VICTIMS DOES NOT WARRANT
DISREGARD OF THE CORPORATE ENTITY.  THE CONTROLLING STOCKHOLDER OWES
THE CORPORATION A FIDUCIARY OBLIGATION-- ONE "DESIGNED FOR THE
PROTECTION OF THE ENTIRE COMMUNITY OF INTERESTS IN THE CORPORATION--
CREDITORS AS WELL AS STOCKHOLDERS."  PEPPER V. LITTON, 308 U.S. 295,
307. 

THE CRUX OF THE PRESENT CASE IS THAT MANHATTAN SUFFERED AN INJURY AS
A RESULT OF DECEPTIVE PRACTICES TOUCHING ITS SALE OF SECURITIES AS AN
INVESTOR.  AS STATED IN SHELL V. HENSLEY, 430 F.2D 819, 827: 

"WHEN A PERSON WHO IS DEALING WITH A CORPORATION IN A SECURITIES
TRANSACTION DENIES THE CORPORATION'S DIRECTORS ACCESS TO MATERIAL
INFORMATION KNOWN TO HIM, THE CORPORATION IS DISABLED FROM AVAILING
ITSELF OF AN INFORMED JUDGMENT ON THE PART OF ITS BOARD REGARDING THE
MERITS OF THE TRANSACTION.  IN THIS SITUATION THE PRIVATE RIGHT OF
ACTION RECOGNIZED UNDER RULE 10B-5 /9/  IS AVAILABLE AS A REMEDY FOR
THE CORPORATE DISABILITY." 

THE CASE WAS BEFORE THE LOWER COURTS ON A MOTION TO DISMISS. 

BANKERS LIFE URGES THAT THE COMPLAINT DID NOT ALLEGE, AND DISCOVERY
FAILED TO DISCLOSE, ANY CONNECTION BETWEEN IT AND THE FRAUD AND THAT,
THEREFORE, THE DISMISSAL OF THE COMPLAINT AS TO IT WAS CORRECT AND
SHOULD BE AFFIRMED.  WE MAKE NO RULING ON THIS POINT. 

THE CASE MUST BE REMANDED FOR TRIAL.  WE INTIMATE NO OPINION ON THE
MERITS, AS WE HAVE DEALT ONLY WITH ALLEGATIONS AND WITH THE QUESTION OF
LAW WHETHER A CAUSE OF ACTION AS RESPECTS THE SALE BY MANHATTAN OF ITS
TREASURY BONDS HAS BEEN CHARGED UNDER SEC. 10(B).  /10/  WE THINK IT
HAS BEEN SO CHARGED AND ACCORDINGLY WE REVERSE AND REMAND FOR
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

ALL DEFENSES EXCEPT OUR RULING ON SEC. 10(B) WILL BE OPEN ON
REMAND. 

REVERSED. 

/1/  MANHATTAN'S BOARD OF DIRECTORS WAS ALLEGEDLY DECEIVED INTO
AUTHORIZING THIS SALE BY THE MISREPRESENTATION THAT THE PROCEEDS WOULD
BE EXCHANGED FOR A CERTIFICATE OF DEPOSIT OF EQUAL VALUE. 

/2/  BELGIAN-AMERICAN BANKING AT THE SAME TIME MADE A LOAN TO NEW
ENGLAND NOTE IN THE AMOUNT OF $250,000 WHICH WAS DISTRIBUTED IN PART AS
FOLLOWS:  BELGIAN-AMERICAN BANKING $100,000, BOURNE $50,000, BEGOLE
$50,000, AND GARVIN, BANTEL $25,000. 

/3/  SECTION 10(B) PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON . . . (TO USE OR EMPLOY, IN
CONNECTION WITH THE PURCHASE OR SALE OF ANY SECURITY REGISTERED ON A
NATIONAL SECURITIES EXCHANGE OR ANY SECURITY NOT SO REGISTERED, ANY
MANIPULATIVE OR DECEPTIVE DEVICE OR CONTRIVANCE IN CONTRAVENTION OF
SUCH RULES AND REGULATIONS AS THE COMMISSION MAY PRESCRIBE AS NECESSARY
OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF
INVESTORS." 

/4/  RULE 10B-5, 17 CFR 240.10B-5, PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, DIRECTLY OR INDIRECTLY, BY THE
USE OF ANY MEANS OR INSTRUMENTALITY OF INTERSTATE COMMERCE, OR OF THE
MAILS OR OF ANY FACILITY OF ANY NATIONAL SECURITIES EXCHANGE, 

"(A) TO EMPLOY ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD, 

"(B) TO MAKE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR TO OMIT TO
STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE,
IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING, OR 

"(C) TO ENGAGE IN ANY ACT, PRACTICE, OR COURSE OF BUSINESS WHICH
OPERATES OR WOULD OPERATE AS A FRAUD OR DECEIT UPON ANY PERSON, IN
CONNECTION WITH THE PURCHASE OR SALE OF ANY SECURITY." 

/5/  N. 4, SUPRA. 

/6/  SECTION 3(A)(10) OF THE 1934 ACT DEFINES "SECURITY" VERY
BROADLY (SEE TCHEREPNIN V. KNIGHT, 389 U.S. 332) AND CLEARLY EMBRACES
TREASURY BONDS. 

/7/  SEE, E.G., ALLICO NAT. CORP. V. AMALGAMATED MEAT CUTTERS &
BUTCHER WORKMEN OF NORTH AMERICA, 397 F.2D 727 (CA7 1968), WHICH HELD
SUFFICIENT UNDER SEC. 10(B) AND RULE 10B-5 A COMPLAINT WHICH CHARGED
THAT DEFENDANT UNION, UPON DISCOVERING THAT A THIRD PARTY WOULD PAY A
HIGHER PRICE, BREACHED A PRIOR AGREEMENT TO SELL 100% OF THE STOCK IN A
WHOLLY OWNED LIFE INSURANCE COMPANY TO PLAINTIFFS.  THE COURT PLACED
PRIMARY RELIANCE ON THE FACT THAT IN THE COURSE OF THE TRANSACTION, THE
UNION MISAPPROPRIATED SOME 25,000 SHARES OF THE LIFE INSURANCE
COMPANY'S STOCK WHICH HAD PREVIOUSLY BEEN SOLD TO PLAINTIFFS FOR CASH,
BUT WHICH WERE BEING HELD IN ESCROW PENDING CONSUMMATION OF THE
AGREEMENT. 

"EVEN IF A BREACH OF CONTRACT IN ORDER TO MAKE A MORE FAVORABLE
CONTRACT WOULD NOT IN ITSELF BE SUFFICIENT (TO CONFER JURISDICTION
UNDER SEC. 10(B)), WE HAVE MORE HERE.  THE MOTIVATION NOT ONLY IS SAID
TO INDUCE A BREACH OF CONTRACT . . . BUT ALSO TO INDUCE THE CONVERSION
OF PLAINTIFFS' PLEDGED 25,000 SHARES."  ID., AT 729-730.  SEE ALSO
COOPER V. NORTH JERSEY TRUST CO., 226 F.SUPP.  972 (SDNY 1964), IN
WHICH A CONSPIRACY TO LOAN PLAINTIFF MONEY TO BUY SECURITIES, FOLLOWED
BY THE MISAPPROPRIATION OF THE PURCHASED SECURITIES WHEN THEY WERE
PLEDGED TO SECURE THE LOAN, WAS HELD TO VIOLATE SEC. 10(B) AND RULE 10B
5. 

INDEED, MISAPPROPRIATION IS A "GARDEN VARIETY" TYPE OF FRAUD
COMPARED TO THE SCHEME WHICH GAVE RISE TO A. T. BROD & CO. V. PERLOW,
375 F.2D 393 (CA2 1967).  THAT CASE INVOLVED AN ACTION BY A BROKER
AGAINST ITS OWN CUSTOMERS FOR THE RECOVERY OF LOSSES SUFFERED WHEN
DEFENDANT CUSTOMERS REFUSED TO PAY FOR SECURITIES PREVIOUSLY ORDERED
WHICH HAD DECREASED IN VALUE BY THE SETTLEMENT DATE.  THE COMPLAINT
CHARGED THAT THIS REFUSAL TO HONOR THE PURCHASE ORDER WAS PART OF THE
CUSTOMERS' DECEPTIVE PLAN ONLY TO PAY FOR SECURITIES PURCHASED FOR
THEIR ACCOUNT WHEN THOSE SECURITIES HAD APPRECIATED IN VALUE BY THE
DATE PAYMENT WAS DUE. 

REJECTING THE CUSTOMERS' PLEAS THAT "NO FRAUD IS ALLEGED AS TO THE
INVESTMENT VALUE OF THE SECURITIES NOR ANY FRAUD 'USUALLY ASSOCIATED
WITH THE SALE OR PURCHASE OF SECURITIES,'" ID., AT 396, THE COURT OF
APPEALS FOR THE SECOND CIRCUIT-- COMPOSED OF A DIFFERENT PANEL FROM THE
ONE SITTING IN THE INSTANT CASE-- REVERSED THE DISTRICT COURT'S
DISMISSAL OF THE COMPLAINT. 

"(WE DO NOT) THINK IT SOUND TO DISMISS A COMPLAINT MERELY BECAUSE
THE ALLEGED SCHEME DOES NOT INVOLVE THE TYPE OF FRAUD THAT IS 'USUALLY
ASSOCIATED WITH THE SALE OR PURCHASE OF SECURITIES.'  WE BELIEVE THAT
SEC. 10(B) AND RULE 10B-5 PROHIBIT ALL FRAUDULENT SCHEMES IN CONNECTION
WITH THE PURCHASE OR SALE OF SECURITIES, WHETHER THE ARTIFICES EMPLOYED
INVOLVE A GARDEN TYPE VARIETY OF FRAUD, OR PRESENT A UNIQUE FORM OF
DECEPTION.  NOVEL OR ATYPICAL METHODS SHOULD NOT PROVIDE IMMUNITY FROM
THE SECURITIES LAWS."  ID., AT 397. 

/8/  THE HISTORY OF THE ACT SHOWS THAT CONGRESS WAS ESPECIALLY
CONCERNED WITH THE IMPACT OF FRAUDS ON CREDITORS OF CORPORATIONS. 
SEE.  H. R. REP. NO. 1383, 73D CONG., 2D SESS., 3-4. 

/9/  IT IS NOW ESTABLISHED THAT A PRIVATE RIGHT OF ACTION IS IMPLIED
UNDER SEC. 10(B).  SEE 6 L. LOSS, SECURITIES REGULATION 3869-3873
(1969); 3 L. LOSS, SECURITIES REGULATION 1763 ET SEQ. (2D ED. 1961). 
CF. TCHEREPNIN V. KNIGHT, 389 U.S. 332; J. I. CASE CO. V. BORAK, 377
U.S. 426.    /10/  PETITIONER'S COMPLAINT BASES HIS SINGLE CLAIM FOR
RECOVERY ALTERNATIVELY ON THREE DIFFERENT TRANSACTIONS ALLEGED TO
CONFER JURISDICTION UNDER SEC. 10(B):  MANHATTAN'S SALE OF THE TREASURY
BONDS; THE SALE OF MANHATTAN STOCK BY BANKERS LIFE TO BOURNE AND
BEGOLE; AND THE TRANSACTIONS INVOLVING THE CERTIFICATES OF DEPOSIT.  WE
ONLY HOLD THAT THE ALLEGED FRAUD IS COGNIZABLE UNDER SEC. 10(B) AND
RULE 10B-5 IN THE BOND SALE AND WE EXPRESS NO OPINION AS TO MANHATTAN'S
STANDING UNDER SEC. 10(B) AND RULE 10B-5 ON OTHER PHASES OF THE
COMPLAINT.  SEE KELLOGG, THE INABILITY TO OBTAIN ANALYTICAL PRECISION
WHERE STANDING TO SUE UNDER RULE 10B-5 IS INVOLVED, 20 BUFFALOL.REV. 
93 (1970); LOWENFELS, THE DEMISE OF THE BIRNBAUM DOCTRINE:  A NEW ERA
FOR RULE 10B-5, 54 VA.L.REV.  268 (1968). 

ARNOLD BAUMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS MORTON J. SCHLOSSBERG. 

WILLIAM W. KARATZ ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT
IRVING TRUST CO. IRVING PARKER ARGUED THE CAUSE FOR RESPONDENT BANKERS
LIFE & CASUALTY CO. WITH HIM ON THE BRIEF WERE WILLIAM T. KIRBY AND
ISAAC M. BAYDA.  WILLIAM E. WILLIS AND MICHAEL M. MANEY FILED A BRIEF
FOR RESPONDENTS BELGIAN-AMERICAN BANKING CORP. ET AL. WILLIAM HELLER
FILED A BRIEF FOR RESPONDENTS GARVIN, BANTEL & CO. ET AL. 

WALTER P. NORTH ARGUED THE CAUSE FOR THE SECURITIES AND EXCHANGE
COMMISSION AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, PETER L. STRAUSS, PHILIP A. LOOMIS,
JR., AND THEODORE SONDE. 
..END :

















YOUNGER V. GILMORE, 404 U.S. 15 


       YOUNGER, ATTORNEY GENERAL OF CALIFORNIA, ET AL. V. GILMORE

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

        NO. 70-9.  ARGUED OCTOBER 14, 1971-- DECIDED NOVEMBER 8,

           1971 


319 F.SUPP.  105, AFFIRMED. 

PER CURIAM. 

ON THIS APPEAL WE POSTPONED THE QUESTION OF JURISDICTION PENDING THE
HEARING OF THE CASE ON THE MERITS.  401 U.S. 906 (1971). 

HAVING HEARD THE CASE ON ITS MERITS, WE FIND THAT THIS COURT DOES
HAVE JURISDICTION (ALABAMA TEACHERS V. ALABAMA PUBLIC SCHOOL AND
COLLEGE AUTHORITY, 393 U.S. 400 (1969)) AND AFFIRM THE JUDGMENT OF THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.  JOHNSON V.
AVERY, 393 U.S. 483 (1969). 

GEORGE R. NOCK, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE EVELLE J. YOUNGER,
ATTORNEY GENERAL, PRO SE, ALBERT W. HARRIS, JR., ASSISTANT ATTORNEY
GENERAL, AND ROBERT R. GRANUCCI, DEPUTY ATTORNEY GENERA. 

JOHN ESHLEMAN WAHL, BY APPOINTMENT OF THE COURT, POST.  P. 814,
ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WAS MARSHALL W.
KRAUSE. 

JACK GREENBERG, JAMES M. NABRIT III, CHARLES STEPHEN RALSTON,
STANLEY A. BASS, ANTHONY G. AMSTERDAM, WILLIAM BENNETT TURNER, AND
ALICE DANIEL FILED A BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL
FUND, INC., ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :










MCCLANAHAN V. MORAUER & HARTZELL, INC., 404 U.S. 16 


       MCCLANAHAN V. MORAUER & HARTZELL, INC., ET AL.

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 70-5097.  ARGUED OCTOBER 21, 1971-- DECIDED NOVEMBER 8,

        1971 


142 U.S.APP.D.C. 40, 439 F.2D 550, CERTIORARI DISMISSED AS
IMPROVIDENTLY GRANTED. 

PER CURIAM. 

UNDER SEC. 33(G) OF THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, AN EMPLOYER IS NOT OBLIGATED TO PAY COMPENSATION TO
AN EMPLOYEE WHO, WITHOUT THE EMPLOYER'S WRITTEN APPROVAL, SETTLES A
CLAIM AGAINST A THIRD PERSON FOR AN AMOUNT LESS THAN THE COMPENSATION
TO WHICH THE EMPLOYEE IS ENTITLED UNDER THE ACT.  44 STAT. 1441, AS
AMENDED, 33 U.S.C. 933(G).  CERTIORARI WAS GRANTED IN THIS CASE, 402
U.S. 1008 (1971), ON THE ASSUMPTION THAT IT PRESENTED THE QUESTION
WHETHER THE CONSENT JUDGMENT ENTERED BY THE DISTRICT JUDGE AWARDING
PETITIONER DAMAGES AGAINST A THIRD PERSON EVIDENCED A "COMPROMISE"
SUBJECT TO SEC. 33(G) UNDER BANKS V. CHICAGO GRAIN TRIMMERS ASSN., 390
U.S. 459, 467 (1968).  FULLER EXAMINATION OF THE CASE ON ORAL ARGUMENT
DISCLOSES THAT THE RECORD DOES NOT ADEQUATELY PRESENT THAT QUESTION. 
THE WRIT OF CERTIORARI IS THEREFORE DISMISSED AS IMPROVIDENTLY
GRANTED. 

              IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AM UNABLE TO AGREE THAT THE CIRCUMSTANCES OF THIS CASE FAIL TO
POSE THE QUESTION WHETHER A CONSENT JUDGMENT PURSUANT TO A FEDERAL
PRETRIAL CONFERENCE CONSTITUTES A "COMPROMISE" WITHIN THE MEANING OF
SEC. 33(G) OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT,
44 STAT. 1441, AS AMENDED, WHICH READS: 

     "IF COMPROMISE WITH SUCH THIRD PERSON IS MADE BY THE PERSON

  ENTITLED TO COMPENSATION . . . OF AN AMOUNT LESS THAN THE

  COMPENSATION TO WHICH SUCH PERSON . . . WOULD BE ENTITLED . . .

  THE EMPLOYER SHALL BE LIABLE FOR COMPENSATION AS DETERMINED IN

  SUBDIVISION (F) OF THIS SECTION ONLY IF SUCH COMPROMISE IS MADE

  WITH HIS WRITTEN APPROVAL." 

PETITIONER MCCLANAHAN WAS EMPLOYED BY RESPONDENT WHEN A STEEL BAR
STRUCK HIS HEAD.  ON AUGUST 24, 1964, THE BUREAU OF EMPLOYEES'
COMPENSATION FOUND THAT THE INJURY HAD CAUSED TEMPORARY TOTAL
DISABILITY AND ORDERED THE RESPONDENT TO COMPENSATE MCCLANAHAN IN THE
AMOUNT OF $3,780.  WHILE THESE PROCEEDINGS WERE PENDING, THE PETITIONER
INSTITUTED A CIVIL ACTION IN THE DISTRICT COURT AGAINST A THIRD PARTY,
ALLEGING THAT ITS EMPLOYEES HAD CONTRIBUTED TO HIS INJURY.  BEFORE THE
CIVIL ACTION CAME TO TRIAL, THE JUDGE CONDUCTED A PRETRIAL CONFERENCE,
DURING WHICH HE SPOKE WITH COUNSEL FIRST TOGETHER AND THEN
INDIVIDUALLY.  DURING THESE CONVERSATIONS THE JUDGE SUGGESTED THAT HE
HAD REVIEWED THE FILE AND THAT HE BELIEVED THE PLAINTIFF'S CASE WAS
WORTH ABOUT $5,000 (ALTHOUGH MCCLANAHAN HAD SUED FOR $9,000).  OTHER
SUMS WERE DISCUSSED BUT THE PARTIES ACCEPTED HIS SUGGESTION.  ON MARCH
3, 1967, A CONSENT JUDGMENT WAS ENTERED FOR $5,000, OF WHICH
PETITIONER'S WIFE RECEIVED $3,000 AND HE RECEIVED $2,000.  OF
PETITIONER'S SHARE $800 WAS RETAINED BY HIS LAWYER AND THE REMAINING
$1,200 OF THE PETITIONER'S SHARE WAS TRANSFERRED TO HIS EMPLOYER'S
INSURANCE CARRIER AS PARTIAL REIMBURSEMENT FOR DISABILITY PAYMENTS
PREVIOUSLY MADE UNDER THE BOARD'S 1964 ORDER. 

THEREAFTER, ON JULY 26, 1967, THE PETITIONER FILED WITH THE BUREAU A
CLAIM FOR MODIFICATION OF ITS 1964 COMPENSATION AWARD, ALLEGING THAT
HIS INJURIES WERE MORE SERIOUS THAN PREVIOUSLY REALIZED.  THE DEPUTY
COMMISSIONER AGREED WITH AT LEAST PART OF HIS ASSERTIONS AND ADDED
$2,328.70 TO THE PRIOR AWARD. 

ON APPEAL, HOWEVER, THE LOWER COURTS WERE PERSUADED THAT THE
EMPLOYER WAS IMMUNE FROM FURTHER LIABILITY BECAUSE THE PETITIONER HAD
"COMPROMISED" HIS CLAIM AGAINST A THIRD PARTY.  THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT PROVIDES THAT AN EMPLOYER IS LIABLE
ONLY FOR THE EXCESS OF A WORKER'S INJURY OVER ANY AMOUNT A WORKER MAY
RECOVER FROM A THIRD PARTY.  THUS, AN EMPLOYER IS BENEFITED WHEN AN
INJURED EMPLOYEE OBTAINS A LARGER JUDGMENT FROM A THIRD PARTY.  TO
PROTECT EMPLOYERS FROM ILL-ADVISED COMPROMISES BY EMPLOYEES SEC. 33(G)
GENERALLY RELIEVES AN EMPLOYER OF FURTHER LIABILITY IF, WITHOUT HIS
WRITTEN APPROVAL, HIS INJURED SERVANT SETTLES WITH ANOTHER POSSIBLE
DEFENDANT.  THUS, IN THE INSTANT CASE, BECAUSE THE RESPONDENT HAD NOT
SUBSCRIBED TO THE CONSENT JUDGMENT, THE LOWER COURTS HELD THAT IT HAD
BEEN SPARED FURTHER PAYMENTS TO MCCLANAHAN. 

WE GRANTED CERTIORARI TO CONSIDER WHETHER THE LOWER COURTS' HOLDINGS
CONFLICT WITH OUR DECISION IN BANKS V. CHICAGO GRAIN TRIMMERS ASSN.,
390 U.S. 459 (1968), THAT AN EMPLOYEE'S ACCEPTANCE OF A JUDICIALLY
ORDERED REMITTITUR IN LIEU OF A NEW TRIAL WAS NOT A "COMPROMISE" WITHIN
THE MEANING OF SEC. 33(G).  402 U.S. 1008 (1971).  BANKS INVOLVED A
SIMILAR CHAIN OF EVENTS EXCEPT THAT BANKS, UNLIKE MCCLANAHAN, WENT TO
TRIAL AND A JURY AWARDED HIM $30,000, WHICH THE JUDGE THOUGHT WAS
EXCESSIVE.  THE COURT ACCORDINGLY SAID IT WOULD ORDER A NEW TRIAL
UNLESS THE PARTIES AGREED TO A REMITTITUR WHICH WOULD REDUCE THE TOTAL
JUDGMENT TO $19,000.  BANKS ACCEPTED WITHOUT OBTAINING HIS EMPLOYER'S
CONSENT.  WE HELD THAT HIS ACQUIESCENCE HAD NOT CONSTITUTED A
"COMPROMISE" BECAUSE IT HAD BEEN INDUCED BY THE "INDEPENDENT EVALUATION
OF A TRIAL JUDGE" AND THE DANGER OF BANKS" ACCEPTING TOO LITTLE HAD NOT
BEEN PRESENT.  390 U.S.,AT 466, 467. 

SIMILARLY, NO RISK OF UNWISE COMPROMISE FACED MCCLANAHAN'S
EMPLOYER.  PRETRIAL CONFERENCES ARE THE LAST STOP BEFORE THE FINAL
STAGE IN THE TRIAL LITIGATION PROCESS.  PRECEDED BY PLEADINGS AND
DISCOVERY, THE CONFERENCE PREVIEWS THE EXPECTED TRIAL SCENARIO, WEEDS
OUT ILLUSORY AND FRIVOLOUS ISSUES, AND EXPOSES THE SUBSTANCE OF
CONFLICTING CLAIMS.  BECAUSE PRETRIAL JUDGES REVIEW THE EVIDENCE TO BE
PRESENTED IN LIGHT OF THE CLARIFIED ISSUES, THEY ARE IN A POSITION TO
ASSESS THE OUTCOME.  THUS, ONE WIDELY APPLAUDED FUNCTION OF THE
PRETRIAL CONFERENCE HAS BEEN ITS ENCOURAGEMENT OF SETTLEMENTS IN
PERSONAL-INJURY CASES.  WHILE SOME DISPUTE CONTINUES AS TO THE DEGREE
OF PERSUASION A JUDGE SHOULD EXERCISE IN OBTAINING A SETTLEMENT,
CRITICS HAVE NOT COMPLAINED THAT PRETRIAL CONFERENCE SETTLEMENTS HAVE
BEEN UNREASONABLE OR UNFAIR.  SEE F. JAMES, CIVIL PROCEDURE 228 (1965);
WRIGHT, THE PRETRIAL CONFERENCE, 28 F.R.D. 141, 145-147 (1960);
BRENNAN, INTRODUCTION TO THE PROBLEM OF THE PROTRACTED CASE, 23 F.R.D.
376, 378-379 (1958); CLARK, OBJECTIVES OF PRE-TRIAL PROCEDURE, 17 OHIO
ST. L. J. 163, 167 (1956).  THUS, MCCLANAHAN'S TRIAL JUDGE BELOW
SURVEYED THE EVIDENCE WHICH WAS TO BE PRESENTED AT TRIAL AND AFTER
DISCUSSION WITH BOTH ADVERSARIES SUGGESTED THAT THE EXPECTED VALUE OF
MCCLANAHAN'S CASE WAS ABOUT $5,000.  THAT ASSESSMENT WAS MADE BY ONE
EXPERIENCED IN UNDERSTANDING HOW JURIES ARE LIKELY TO VIEW A CLAIM. 
ABSENT CIRCUMSTANCES NOT SHOWN HERE, WE SHOULD PRESUME THAT SUCH
EVALUATIONS ARE REASONABLE AND DO NOT PREJUDICE EMPLOYERS' INTERESTS. 

IN BANKS-- UNLIKE HERE-- THE JUDGE HAD SEEN A FULL JURY TRIAL'S
WORTH OF EVIDENCE.  BUT IN BOTH SITUATIONS THERE WERE CRITICAL
ASSESSMENTS OF THE EXPECTED VALUES OF PLAINTIFFS' FUTURE PROSPECTS.  IN
BANKS THE EMPLOYEE MIGHT WELL HAVE ADDUCED DIFFERENT, STRONGER EVIDENCE
AT A SECOND TRIAL, OR, THE REMITTITUR ORDER MAY HAVE BEEN VACATED ON
APPEAL.  IN SETTLING ON A SUGGESTED REMITTITUR OF $11,000 THE COURT MAY
HAVE EXTRAPOLATED FROM HINDSIGHT BUT IT HAD NO MORE, PERHAPS EVEN LESS,
INFORMATION CONCERNING BANKS' EVENTUAL SUCCESS THAN HAD MCCLANAHAN'S
PRETRIAL JUDGE CONCERNING HIS PROSPECTS.  THE IMPORTANT SIMILARITY
BETWEEN THESE CASES IS THAT AN INDEPENDENT AND INFORMED FORECAST WAS
MADE OF EVENTS YET TO UNFOLD. 

MOREOVER, WE HAVE CONSTRUED SEC. 33(G) SO AS TO CONFINE THIS DEFENSE
TO THOSE SITUATIONS WHERE AN EMPLOYER CAN DEMONSTRATE ACTUAL PREJUDICE
FROM UNILATERAL SETTLEMENTS BY THE EMPLOYEE.  IN CHAPMAN V. HOAGE, 296
U.S. 526 (1936), OUR FIRST OPINION DISCUSSING SEC. 33(G), THE EMPLOYER
CLAIMED PREJUDICE BECAUSE HIS EMPLOYEE HAD UNILATERALLY DISCONTINUED A
LAWSUIT AGAINST A THIRD PARTY.  THE TRIAL JUDGE HAD MADE NO ASSESSMENT
OF ITS PROSPECTS.  THE WORKER HAD SIMPLY FAILED TO PROSECUTE HIS CASE. 
THIS COURT ULTIMATELY DETERMINED THAT THE LAWSUIT HAD BEEN WORTHLESS
AND THAT ABSENT A SHOWING OF ACTUAL PREJUDICE THE EMPLOYER WAS NOT
ENTITLED TO A WINDFALL "COMPROMISE" DEFENSE AS A RESULT OF ITS
DISMISSAL. 

THE TREND IN OTHER JURISDICTIONS HAS BEEN TO AVOID THE HARSHNESS
RESULTING FROM STRICT APPLICATIONS OF STATUTES REQUIRING CONSENT OF
EMPLOYERS IN THIRD-PARTY SETTLEMENTS.  UNDER THE ANALOGOUS PROVISION OF
THE NEW YORK EMPLOYEES' COMPENSATION STATUTE, AFTER WHICH THE FEDERAL
ACT WAS MODELED, /1/  CIRCUMSTANCES SIMILAR TO THE INSTANT FACTS HAVE
BEEN HELD NONPREJUDICIAL TO EMPLOYERS.  SADOWSKI V. J. W. DANFORTH CO.,
2 APP.DIV.2D 728, 152 N.Y.S.2D 626 (1956), EFFECTIVELY DIFFERED FROM
THE INSTANT CASE ONLY IN THAT THE CONFERENCE WAS HELD IN THE COURTROOM
RATHER THAN IN CHAMBERS: 

"PRIOR TO TRIAL OF THE ACTION, THE ATTORNEYS CONCERNED HAD TWO OR
THREE DISCUSSIONS AS TO SETTLEMENT.  ON THE DAY THE CASE WAS REACHED
FOR TRIAL, CLAIMNANT'S ATTORNEY TOLD HIM HE BELIEVED THE CASE WOULD BE
SETTLED AND LATER ASKED HIM TO APPROVE A SETTLEMENT FIGURE OF $10,000,
WHICH HE DID.  IN THE PRESENCE OF HIS ATTORNEY AND AN INSURANCE COMPANY
REPRESENTATIVE, CLAIMANT SIGNED A PAPER, BUT SO FAR AS APPEARS NO
EFFORT WAS MADE TO SUBPOENA SUCH PAPER ON THE HEARING HEREIN.  WHEN THE
CASE WAS REACHED, BOTH ATTORNEYS APPEARED AND WAIVED A JURY.  CLAIMANT
TESTIFIED AS TO ALL THE FACTS RELEVANT TO LIABILITY AND DAMAGES AND
EXHIBITS WERE RECEIVED.  DEFENDANT'S ATTORNEY DID NOT CROSS-EXAMINE AND
PUT IN NO PROOF.  THE TRIAL COURT THEN FOUND DEFENDANT NEGLIGENT AND
THE PLAINTIFF FREE FROM NEGLIGENCE AND DIRECTED JUDGMENT FOR $10,250. 
WE CANNOT SAY, AS A MATTER OF LAW, UPON THE RECORD BEFORE US, THAT THIS
RESULT DID NOT REPRESENT THE TRIAL COURT'S CONSIDERED JUDGMENT AND
EVALUATION, BASED ON THE EVIDENCE, WHICH APPEARS TO HAVE BEEN ADEQUATE
TO ENABLE HIM TO REACH A FAIR DETERMINATION.  IN A CASE WHERE THE FACTS
WERE SOMEWHAT MORE FAVORABLE TO THE COMPENSATION INSURANCE CARRIER THAN
HERE, WE HELD THAT THE JUDGMENT REPRESENTED THE 'TRIAL COURT'S
EVALUATION OF THE DAMAGES SUSTAINED AND WAS NOT THE RESULT OF ANY
SETTLEMENT OR COMPROMISE.'  (MATTER OF KLUMP V. ERIE COUNTY HIGHWAY
DEPARTMENT, 275 APP.DIV.  1017, MOTION FOR LEAVE TO APPEAL DENIED 300
N.Y. 761.)"  /2/ 

THE PURPOSE OF THE LONGSHOREMEN'S AND HARBOR WORKER'S COMPENSATION
ACT WAS TO GUARANTEE A MINIMUM LEVEL OF COMPENSATION TO COVERED
EMPLOYEES.  THE RECORD CLEARLY REVEALS THAT MCCLANAHAN HAS NOT YET
RECEIVED THAT STATUTORY MINIMUM. 

WE SHOULD NOT DEPART FROM OUR HOLDING IN BANKS.  WHERE A PLAINTIFF
CANNOT RELY ON THE JUDGMENT AND EXPERIENCE OF A FEDERAL DISTRICT JUDGE,
HE HAS NO CHOICE BUT TO REFUSE ANY DISPOSITION OF THE CASE SHORT OF A
FULL TRIAL AND NUMEROUS APPEALS.  IN THESE DAYS OF CROWDED COURT
DOCKETS, THE EFFECT OF THE RULE ADOPTED BY THE COURT OF APPEALS WILL BE
TO DISCOURAGE CONSENT JUDGMENTS IN CASES OF THIS KIND AND FORCE ALL
SUCH LITIGATION THROUGH THE TRIAL PROCESS, FURTHER OVERWHELMING ALREADY
OVERBURDENED JUDGES.  FINALLY, THERE IS SOMETHING MOST INEQUITABLE IN
HOLDING THAT A PERSONAL-INJURY PLAINTIFF WHO RELIES ON THE GOOD FAITH
AND JUDGMENT OF A FEDERAL JUDGE SHOULD THEREAFTER BE PENALIZED AND
DEPRIVED DECISION BELOW TO ENFORCE THE CONGRESSIONAL MANDATE CONTAINED
IN THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT AS WE DID IN
OUR DECISION IN BANKS. 

/1/  BANKS V. CHICAGO GRAIN TRIMMERS ASSN., INC., 390 U.S. 459, 466
(1968). 

/2/  IN KLUMP, THE THIRD PARTY AND THE PLAINTIFF-EMPLOYEE WAIVED A
JURY, THE LATTER TESTIFIED BRIEFLY, THE FORMER CONCEDED LIABILITY, AND
WHEN BOTH AGREED THAT DAMAGES RANGED BETWEEN $4,000 AND $4,500, THE
TRIAL JUDGE ENTERED A JUDGMENT FOR $4,300.  BEFORE THE COMPENSATION
BOARD THE EMPLOYER LATER ARGUED UNSUCCESSFULLY THAT THIS JUDGMENT HAD
CONSTITUTED A COMPROMISE.  KLUMP V. ERIE COUNTY HIGHWAY DEPARTMENT, 275
APP.DIV.  1017, 91 N.Y.S.2D 689, LEAVE TO APPEAL DENIED, 300 N.Y. 761,
90 N.E.2D 69.  THE OPINION OF THE STATE WORKMAN'S COMPENSATION BOARD IS
REPORTED AT STATE OF NEW YORK WORKMAN'S COMPENSATION BOARD, SPECIAL
BULLETIN NO. 229, P. 192 (1949). 

JOHN LOUIS SMITH, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WAS GEORGE H. MITCHELL, JR. 

JAMES C. GREGG ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS JAMES F. BROMLEY. 
..END :





















ARCINIEGA V. FREEMAN, 404 U.S. 4 


       ARCINIEGA V. FREEMAN, U.S. MARSHAL

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

   COURT OF APPEALS FOR THE NINTH CIRCUIT

        NO. 70-5135.  DECIDED OCTOBER 26, 1971 


THE COURT OF APPEALS ERRED IN HOLDING THAT MERE ON-THE-JOB CONTACT
WITH FELLOW EMPLOYEES WITH POLICE RECORDS IS SUFFICIENT EVIDENCE OF
PAROLE VIOLATION IN THE ABSENCE OF A CLEAR DIRECTIVE OF THE FEDERAL
PAROLE BOARD TO THAT EFFECT. 

CERTIORARI GRANTED; 439 F.2D 776, REVERSED. 

PER CURIAM. 

PETITIONER'S PAROLE WAS REVOKED BY THE FEDERAL PAROLE BOARD BECAUSE
OF ASSOCIATION WITH OTHER EX-CONVICTS.  IN A PETITION FOR HABEAS
CORPUS, PETITIONER CONTENDED THAT THE RECORD DID NOT DISCLOSE ANY
EVIDENCE IN SUPPORT OF THIS CONCLUSION.  THE COURT OF APPEALS FOR THE
NINTH CIRCUIT SUSTAINED THE REVOCATION ON THE SOLE GROUND THAT
PETITIONER WORKED AT A RESTAURANT-NIGHTCLUB THAT EMPLOYED OTHER EX
CONVICTS.  439 F.2D 776. 

THE PAROLE BOARD HAS WIDE AUTHORITY TO SET CONDITIONS, 18 U.S.C.
4203(A), AND HERE PETITIONER WAS FORBIDDEN TO "ASSOCIATE" WITH OTHER EX
CONVICTS.  BUT THE BOARD'S OWN REGULATIONS REQUIRE "SATISFACTORY
EVIDENCE" OF A PAROLE VIOLATION TO JUSTIFY AN ARREST WARRANT.  28 CFR
2.35.  WE DO NOT BELIEVE THAT THE PAROLE CONDITION RESTRICTING
ASSOCIATION WAS INTENDED TO APPLY TO INCIDENTAL CONTACTS BETWEEN EX
CONVICTS IN THE COURSE OF WORK ON A LEGITIMATE JOB FOR A COMMON
EMPLOYER.  NOR IS SUCH OCCUPATIONAL ASSOCIATION, STANDING ALONE,
SATISFACTORY EVIDENCE OF NON-BUSINESS ASSOCIATION VIOLATIVE OF THE
PAROLE RESTRICTION.  TO SO ASSUME WOULD BE TO RENDER A PAROLEE
VULNERABLE TO IMPRISONMENT WHENEVER HIS EMPLOYER, WILLING TO HIRE EX
CONVICTS, HIRES MORE THAN ONE.  ABSENT A CLEAR PAROLE BOARD DIRECTIVE
TO THIS EFFECT, WE CANNOT SUSTAIN THE JUDGMENT OF THE COURT OF APPEALS
THAT ON-THE-JOB CONTACT WITH FELLOW EMPLOYEES WITH POLICE RECORDS IS
SUFFICIENT EVIDENCE OF PAROLE VIOLATION.  IF THERE IS IN THIS RECORD
OTHER EVIDENCE OF FORBIDDEN ASSOCIATION OR EVIDENCE OF OTHER PAROLE
VIOLATIONS, NEITHER THE COURT OF APPEALS NOR THE UNITED STATES HAS
IDENTIFIED IT. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED, THE
PETITION FOR A WRIT OF CERTIORARI IS GRANTED, AND THE JUDGMENT OF THE
COURT OF APPEALS IS

              REVERSED. 
..END :






















HICKS V. PLEASURE HOUSE, INC., 404 U.S. 1 


       HICKS, DISTRICT ATTORNEY OF ORANGE COUNTY, ET AL. V.

           PLEASURE HOUSE, INC., ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

        DISTRICT OF CALIFORNIA

        NO. 70-127.  DECIDED OCTOBER 12, 1971 


THIS COURT HAS NO JURISDICTION UNDER 28 U.S.C. 1253 TO ENTERTAIN A
DIRECT APPEAL FROM A TEMPORARY RESTRAINING ORDER ISSUED UNDER 28 U.S.C.
2284(3) BY SINGLE DISTRICT JUDGE AFTER HE HAD CERTIFIED A REQUEST FOR
DESIGNATION OF THREE-JUDGE COURT TO HEAR SUIT FOR PERMANENT RELIEF. 

APPEAL DISMISSED. 

PER CURIAM. 

THE APPELLANTS SEEK REVIEW OF A TEMPORARY RESTRAINING ORDER ENTERED
BY A SINGLE DISTRICT JUDGE IN A CASE CERTIFIED FOR PRESENTATION TO A
STATUTORY THREE-JUDGE COURT.  THE ORDER, INTER ALIA, STAYED A PENDING
PROSECUTION OF THE APPELLEES UNDER CERTAIN STATE OBSCENITY LAWS AND
TEMPORARILY RESTRAINED FURTHER ENFORCEMENT OF THE LAWS AGAINST THE
APPELLEES.  IT WAS ENTERED BY THE DISTRICT JUDGE SHORTLY AFTER HE HAD
CERTIFIED A REQUEST FOR DESIGNATION OF A THREE-JUDGE COURT TO HEAR THE
APPELLEES' SUIT FOR PERMANENT DECLARATORY AND INJUNCTIVE RELIEF.  UNDER
28 U.S.C. 2284(3), A SINGLE DISTRICT JUDGE HAS POWER TO ENTER SUCH AN
ORDER IN A CASE TO BE HEARD BY A THREE-JUDGE COURT, BUT THE ORDER CAN
BE ENTERED ONLY "TO PREVENT IRREPARABLE DAMAGE" AND CAN "REMAIN IN
FORCE ONLY UNTIL THE HEARING AND DETERMINATION BY THE FULL COURT." 

THE APPELLANTS ARGUE THAT THE ORDER IN THIS CASE CONTRAVENES
PRINCIPLES SET FORTH LAST TERM IN YOUNGER V. HARRIS, 401 U.S. 37
(1971).  THEY INVOKE THIS COURT'S JURISDICTION ON DIRECT APPEAL FROM
"AN INTERLOCUTORY OR PERMANENT INJUNCTION" IN ANY ACTION "REQUIRED . .
. TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES,"
UNDER 28 U.S.C. 1253.  SINCE, HOWEVER, SEC. 1253 DOES NOT AUTHORIZE A
DIRECT APPEAL TO THIS COURT FROM A SEC. 2284(3) ORDER BY A SINGLE
DISTRICT JUDGE, WE DISMISS THIS APPEAL FOR WANT OF JURISDICTION. 

LONG AGO, THIS COURT MADE CLEAR THAT NO DIRECT APPEAL LIES UNDER
SEC. 1253 TO THE SUPREME COURT FROM A TEMPORARY RESTRAINING ORDER
ISSUED BY A SINGLE JUDGE, EVEN THOUGH THE ORDER MAY AMOUNT TO AN
"INTERLOCUTORY INJUNCTION" AND MAY HAVE BEEN ISSUED IN AN ACTION
REQUIRED TO BE HEARD BY A THREE-JUDGE COURT.  STRATTON V. ST. LOUIS
S.R. CO., 282 U.S. 10.  /1/  SEE EX PARTE METROPOLITAN WATER CO., 220
U.S. 539.  THIS IS SO BECAUSE SEC. 1253 "PLAINLY CONTEMPLATES SUCH A
DIRECT APPEAL ONLY IN THE CASE OF AN ORDER OR DECREE ENTERED BY A COURT
COMPOSED OF THREE JUDGES IN ACCORDANCE WITH THE STATUTORY
REQUIREMENT."  STRATTON V. ST. LOUIS S.R. CO., SUPRA, AT 16.  SEE
MENGELKOCH V. INDUSTRIAL WELFARE COMM'N, 393 U.S. 83; WILSON V. CITY OF
PORT LAVACA, 391 U.S. 352; SCHACKMAN V. ARNEBERGH, 387 U.S. 427;
BUCHANAN V. RHODES, 385 U.S. 3. 

MORE RECENTLY, THIS COURT HAS HELD THAT AN APPEAL MAY LIE TO A COURT
OF APPEALS FROM CERTAIN ACTIONS OF A SINGLE DISTRICT JUDGE IN A CASE
REQUIRED TO BE HEARD BY THREE JUDGES.  MENGELKOCH V. INDUSTRIAL WELFARE
COMM'N, SUPRA; WILSON V. CITY OF PORT LAVACA, SUPRA; SCHACKMAN V.
ARNEBERGH, SUPRA; IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN, 370 U.S.
713.  A COURT OF APPEALS IS NOT "POWERLESS . . . TO GIVE ANY GUIDANCE
WHEN A SINGLE JUDGE HAS ERRONEOUSLY INVADED THE PROVINCE OF A THREE
JUDGE COURT."  IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN, SUPRA, AT
716.  THUS, IF A SINGLE JUDGE OVERSTEPS HIS LIMITED AUTHORITY UNDER
SEC. 2284(3), A COURT OF APPEALS MAY CORRECT HIS ERROR.  IN ADDITION, A
TEMPORARY RESTRAINING ORDER ISSUED PURSUANT TO SEC. 2284(3) IS
REVIEWABLE IN A COURT OF APPEALS TO THE EXTENT THAT ANY SUCH ORDER IS
REVIEWABLE UNDER 28 U.S.C. 1291 AND 1292(A).  HOWEVER, IF NO SUCH
APPEAL IS TAKEN BEFORE THE THREE-JUDGE COURT IS CONVENED, /2/
APPLICATION MUST BE MADE TO THAT COURT FOR VACATION OR MODIFICATION OF
THE TEMPORARY RESTRAINING ORDER PENDING A FINAL DETERMINATION ON THE
MERITS. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 

/1/  IN THE INSTANT CASE, THE SINGLE JUDGE HIMSELF DETERMINED THAT
THE ACTION WAS ONE REQUIRED TO BE HEARD BY A THREE-JUDGE COURT AND THEN
ENTERED HIS TEMPORARY RESTRAINING ORDER; IN STRATTON, SUPRA, ON THE
OTHER HAND, THE SINGLE JUDGE ERRONEOUSLY DETERMINED THAT A THREE-JUDGE
COURT WAS NOT REQUIRED AND THEN ENTERED A SIMILAR ORDER.  THIS
DISTINCTION BETWEEN THE CASES, HOWEVER, MAKES NO DIFFERENCE IN
PRINCIPLE. 

/2/  THE PAPERS BEFORE THE COURT IN THIS CASE DO NOT MAKE CLEAR
WHETHER OR NOT THE THREE-JUDGE COURT HAS NOW BEEN CONVENED. 
..END :






NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713 


       NEW YORK TIMES CO. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

     SECOND CIRCUIT

        NO. 1873.  ARGUED JUNE 26, 1971-- DECIDED JUNE 30, 1971
/0/ 


THE UNITED STATES, WHICH BROUGHT THESE ACTIONS TO ENJOIN PUBLICATION
IN THE NEW YORK TIMES AND IN THE WASHINGTON POST OF CERTAIN CLASSIFIED
MATERIAL, HAS NOT MET THE "HEAVY BURDEN OF SHOWING JUSTIFICATION FOR
THE ENFORCEMENT OF SUCH A (PRIOR) RESTRAINT." 

NO. 1873, 444 F.2D 544, REVERSED AND REMANDED; NO. 1855, -- U.S.
APP. D.C.-- , 446 F.2D 1327, AFFIRMED. 

PER CURIAM. 

WE GRANTED CERTIORARI IN THESE CASES IN WHICH THE UNITED STATES
SEEKS TO ENJOIN THE NEW YORK TIMES AND THE WASHINGTON POST FROM
PUBLISHING THE CONTENTS OF A CLASSIFIED STUDY ENTITLED "HISTORY OF U.S.
DECISION-MAKING PROCESS OF VIET NAM POLICY."  POST, PP. 942, 943. 

"ANY SYSTEM OF PRIOR RESTRAINTS OF EXPRESSION COMES TO THIS COURT
BEARING A HEAVY PRESUMPTION AGAINST ITS CONSTITUTIONAL VALIDITY." 
BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58, 70 (1963); SEE ALSO NEAR
V. MINNESOTA, 283 U.S. 697 (1931).  THE GOVERNMENT "THUS CARRIES A
HEAVY BURDEN OF SHOWING JUSTIFICATION FOR THE IMPOSITION OF SUCH A
RESTRAINT."  ORGANIZATION FOR A BETTER AUSTIN V. KEEFE, 402 U.S. 415,
419 (1971).  THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
IN THE NEW YORK TIMES CASE AND THE DISTRICT COURT COURT FOR THE
DISTRICT OF COLUMBIA AND THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT IN THE WASHINGTON POST CASE HELD THAT THE GOVERNMENT
HAD NOT MET THAT BURDEN.  WE AGREE. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT IS THEREFORE AFFIRMED.  THE ORDER OF THE COURT OF APPEALS FOR
THE SECOND CIRCUIT IS REVERSED AND THE CASE IS REMANDED WITH DIRECTIONS
TO ENTER A JUDGMENT AFFIRMING THE JUDGMENT OF THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK.  THE STAYS ENTERED JUNE 25, 1971, BY
THE COURT ARE VACATED.  THE JUDGMENTS SHALL ISSUE FORTHWITH. 

              SO ORDERED. 

/0/  TOGETHER WITH NO. 1885, UNITED STATES V. WASHINGTON POST CO. ET
AL., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

I ADHERE TO THE VIEW THAT THE GOVERNMENT'S CASE AGAINST THE
WASHINGTON POST SHOULD HAVE BEEN DISMISSED AND THAT THE INJUNCTION
AGAINST THE NEW YORK TIMES SHOULD HAVE BEEN VACATED WITHOUT ORAL
ARGUMENT WHEN THE CASES WERE FIRST PRESENTED TO THIS COURT.  I BELIEVE
THAT EVERY MOMENT'S CONTINUANCE OF THE INJUNCTIONS AGAINST THESE
NEWSPAPERS AMOUNTS TO A FLAGRANT, INDEFENSIBLE, AND CONTINUING
VIOLATION OF THE FIRST AMENDMENT.  FURTHERMORE, AFTER ORAL ARGUMENT, I
AGREE COMPLETELY THAT WE MUST AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT AND REVERSE THE JUDGMENT
OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT FOR THE REASONS STATED
BY MY BROTHERS DOUGLAS AND BRENNAN.  IN MY VIEW IT IS UNFORTUNATE THAT
SOME OF MY BRETHREN ARE APPARENTLY WILLING TO HOLD THAT THE PUBLICATION
OF NEWS MAY SOMETIMES BE ENJOINED.  SUCH A HOLDING WOULD MAKE A
SHAMBLES OF THE FIRST AMENDMENT. 

OUR GOVERNMENT WAS LAUNCHED IN 1789 WITH THE ADOPTION OF THE
CONSTITUTION.  THE BILL OF RIGHTS, INCLUDING THE FIRST AMENDMENT,
FOLLOWED IN 1791.  NOW, FOR THE FIRST TIME IN THE 182 YEARS SINCE THE
FOUNDING OF THE REPUBLIC, THE FEDERAL COURTS ARE ASKED TO HOLD THAT THE
FIRST AMENDMENT DOES NOT MEAN WHAT IT SAYS, BUT RATHER MEANS THAT THE
GOVERNMENT CAN HALT THE PUBLICATION OF CURRENT NEWS OF VITAL IMPORTANCE
TO THE PEOPLE OF THIS COUNTRY. 

IN SEEKING INJUNCTIONS AGIANST THESE NEWSPAPERS AND IN ITS
PRESENTATION TO THE COURT, THE EXECUTIVE BRANCH SEEMS TO HAVE FORGOTTEN
THE ESSENTIAL PURPOSE AND HISTORY OF THE FIRST AMENDMENT.  WHEN THE
CONSTITUTION WAS ADOPTED, MANY PEOPLE STRONGLY OPPOSED IT BECAUSE THE
DOCUMENT CONTAINED NO BILL OF RIGHTS TO SAFEGUARD CERTAIN BASIC
FREEDOMS.  /1/  THEY ESPECIALLY FEARED THAT THE NEW POWERS GRANTED TO A
CENTRAL GOVERNMENT MIGHT BE INTERPRETED TO PERMIT THE GOVERNMENT TO
CURTAIL FREEDOM OF RELIGION, PRESS, ASSEMBLY, AND SPEECH.  IN RESPONSE
TO AN OVERWHELMING PUBLIC CLAMOR, JAMES MADISON OFFERED A SERIES OF
AMENDMENTS TO SATISFY CITIZENS THAT THESE GREAT LIBERTIES WOULD REMAIN
SAFE AND BEYOND THE POWER OF GOVERNMENT TO ABRIDGE.  MADISON PROPOSED
WHAT LATER BECAME THE FIRST AMENDMENT IN THREE PARTS, TWO OF WHICH ARE
SET OUT BELOW, AND ONE OF WHICH PROCLAIMED:  "THE PEOPLE SHALL NOT BE
DEPRIVED OR ABRIDGED OF THEIR RIGHT TO SPEAK, TO WRITE, OR TO PUBLISH
THEIR SENTIMENTS; AND THE FREEDOM OF THE PRESS, AS ONE OF THE GREAT
BULWARKS OF LIBERTY, SHALL BE INVIOLABLE."  /2/  THE AMENDMENTS WERE
OFFERED TO CURTAIL AND RESTRICT THE GENERAL POWERS GRANTED TO THE
EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHES TWO YEARS BEFORE IN THE
ORIGINAL CONSTITUTION.  THE BILL OF RIGHTS CHANGED THE ORIGINAL
CONSTITUTION INTO A NEW CHARTER UNDER WHICH NO BRANCH OF GOVERNMENT
COULD ABRIDGE THE PEOPLE'S FREEDOMS OF PRESS, SPEECH, RELIGION, AND
ASSEMBLY.  YET THE SOLICITOR GENERAL ARGUES AND SOME MEMBERS OF THE
COURT APPEAR TO AGREE THAT THE GENERAL POWERS OF THE GOVERNMENT ADOPTED
IN THE ORIGINAL CONSTITUTION SHOULD BE INTERPRETED TO LIMIT AND
RESTRICT THE SPECIFIC AND EMPHATIC GUARANTEES OF THE BILL OF RIGHTS
ADOPTED LATER.  I CAN IMAGINE NO GREATER PERVERSION OF HISTORY. 
MADISON AND THE OTHER FRAMERS OF THE FIRST AMENDMENT, ABLE MEN THAT
THEY WERE, WROTE IN LANGUAGE THEY EARNESTLY BELIEVED COULD NEVER BE
MISUNDERSTOOD: "CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE FREEDOM
. . . OF THE PRESS . . . "  BOTH THE HISTORY AND LANGUAGE OF THE FIRST
AMENDMENT SUPPORT THE VIEW THAT THE PRESS MUST BE LEFT FREE TO PUBLISH
NEWS, WHATEVER THE SOURCE, WITHOUT CENSORSHIP, INJUNCTIONS, OR PRIOR
RESTRAINTS. 

IN THE FIRST AMENDMENT THE FOUNDING FATHERS GAVE THE FREE PRESS THE
PROTECTION IT MUST HAVE TO FULFILL ITS ESSENTIAL ROLE IN OUR
DEMOCRACY.  THE PRESS WAS TO SERVE THE GOVERNED, NOT THE GOVERNORS. 
THE GOVERNMENT'S POWER TO CENSOR THE PRESS WAS ABOLISHED SO THAT THE
PRESS WOULD REMAIN FOREVER FREE TO CENSURE THE GOVERNMENT.  THE PRESS
WAS PROTECTED SO THAT IT COULD BARE THE SECRETS OF GOVERNMENT AND
INFORM THE PEOPLE.  ONLY A FREE AND UNRESTRAINED PRESS CAN EFFECTIVELY
EXPOSE DECEPTION IN GOVERNMENT.  AND PARAMOUNT AMONG THE
RESPONSIBILITIES OF A FREE PRESS IS THE DUTY TO PREVENT ANY PART OF THE
GOVERNMENT FROM DECEIVING THE PEOPLE AND SENDING THEM OFF TO DISTANT
LANDS TO DIE OF FOREIGN FEVERS AND FOREIGN SHOT AND SHELL.  IN MY VIEW,
FAR FROM DESERVING CONDEMNATION FOR THEIR COURAGEOUS REPORTING, THE NEW
YORK TIMES, THE WASHINGTON POST, AND OTHER NEWSPAPERS SHOULD BE
COMMENDED FOR SERVING THE PURPOSE THAT THE FOUNDING FATHERS SAW SO
CLEARLY.  IN REVEALING THE WORKINGS OF GOVERNMENT THAT LED TO THE
VIETNAM WAR, THE NEWSPAPERS NOBLY DID PRECISELY THAT WHICH THE FOUNDERS
HOPED AND TRUSTED THEY WOULD DO. 

THE GOVERNMENT'S CASE HERE IS BASED ON PREMISES ENTIRELY DIFFERENT
FROM THOSE THAT GUIDED THE FRAMERS OF THE FIRST AMENDMENT.  THE
SOLICITOR GENERAL HAS CAREFULLY AND EMPHATICALLY STATED: 

     "NOW, MR. JUSTICE (BLACK), YOUR CONSTRUCTION OF . . . (THE

  FIRST AMENDMENT) IS WELL KNOWN, AND I CERTAINLY RESPECT IT.  YOU

  SAY THAT NO LAW MEANS NO LAW, AND THAT SHOULD BE OBVIOUS.  I CAN

  ONLY SAY, MR. JUSTICE, THAT TO ME IT IS EQUALLY OBVIOUS THAT 'NO

 LAW' DOES NOT MEAN 'NO LAW', AND I WOULD SEEK TO PERSUADE THE

  COURT THAT THAT IS TRUE . . . (THERE ARE OTHER PARTS OF THE

  CONSTITUTION THAT GRANT POWERS AND RESPONSIBILITIES TO THE

  EXECUTIVE AND . . . THE FIRST AMENDMENT WAS NOT INTENDED TO MAKE

  IT IMPOSSIBLE FOR THE EXECUTIVE TO FUNCTION OR TO PROTECT THE

  SECURITY OF THE UNITED STATES."  /3/ 

AND THE GOVERNMENT ARGUES IN ITS BRIEF THAT IN SPITE OF THE FIRST
AMENDMENT, "(THE AUTHORITY OF THE EXECUTIVE DEPARTMENT TO PROTECT THE
NATION AGAINST PUBLICATION OF INFORMATION WHOSE DISCLOSURE WOULD
ENDANGER THE NATIONAL SECURITY STEMS FROM TWO INTERRELATED SOURCES:
THE CONSTITUTIONAL POWER OF THE PRESIDENT OVER THE CONDUCT OF FOREIGN
AFFAIRS AND HIS AUTHORITY AS COMMANDER-IN-CHIEF."  /4/ 

IN OTHER WORDS, WE ARE ASKED TO HOLD THAT DESPITE THE FIRST
AMENDMENT'S EMPHATIC COMMAND, THE EXECUTIVE BRANCH, THE CONGRESS, AND
THE JUDICIARY CAN MAKE LAWS ENJOINING PUBLICATION OF CURRENT NEWS AND
ABRIDGING FREEDOM OF THE PRESS IN THE NAME OF "NATIONAL SECURITY."  THE
GOVERNMENT DOES NOT EVEN ATTEMPT TO RELY ON ANY ACT OF CONGRESS. 
INSTEAD IT MAKES THE BOLD AND DANGEROUSLY FAR-REACHING CONTENTION THAT
THE COURTS SHOULD TAKE IT UPON THEMSELVES TO "MAKE" A LAW ABRIDGING
FREEDOM OF THE PRESS IN THE NAME OF EQUITY, PRESIDENTIAL POWER AND
NATIONAL SECURITY, EVEN WHEN THE REPRESENTATIVES OF THE PEOPLE IN
CONGRESS HAVE ADHERED TO THE COMMAND OF THE FIRST AMENDMENT AND REFUSED
TO MAKE SUCH A LAW.  /5/  SEE CONCURRING OPINION OF MR. JUSTICE
DOUGLAS, POST, AT 721-722.  TO FIND THAT THE PRESIDENT HAS "INHERENT
POWER" TO HALT THE PUBLICATION OF NEWS BY RESORT TO THE COURTS WOULD
WIPE OUT THE FIRST AMENDMENT AND DESTROY THE FUNDAMENTAL LIBERTY AND
SECURITY OF THE VERY PEOPLE THE GOVERNMENT HOPES TO MAKE "SECURE."  NO
ONE CAN READ THE HISTORY OF THE ADOPTION OF THE FIRST AMENDMENT WITHOUT
BEING CONVINCED BEYOND ANY DOUBT THAT IT WAS INJUNCTIONS LIKE THOSE
SOUGHT HERE THAT MADISON AND HIS COLLABORATORS INTENDED TO OUTLAW IN
THIS NATION FOR ALL TIME. 

THE WORD "SECURITY" IS A BROAD, VAGUE GENERALITY WHOSE CONTOURS
SHOULD NOT BE INVOKED TO ABROGATE THE FUNDAMENTAL LAW EMBODIED IN THE
FIRST AMENDMENT.  THE GUARDING OF MILITARY AND DIPLOMATIC SECRETS AT
THE EXPENSE OF INFORMED REPRESENTATIVE GOVERNMENT PROVIDES NO REAL
SECURITY FOR OUR REPUBLIC.  THE FRAMERS OF THE FIRST AMENDMENT, FULLY
AWARE OF BOTH THE NEED TO DEFEND A NEW NATION AND THE ABUSES OF THE
ENGLISH AND COLONIAL GOVERNMENTS, SOUGHT TO GIVE THIS NEW SOCIETY
STRENGTH AND SECURITY BY PROVIDING THAT FREEDOM OF SPEECH, PRESS,
RELIGION, AND ASSEMBLY SHOULD NOT BE ABRIDGED.  THIS THOUGHT WAS
ELOQUENTLY EXPRESSED IN 1937 BY MR. CHIEF JUSTICE HUGHES-- GREAT MAN
AND GREAT CHIEF JUSTICE THAT HE WAS-- WHEN THE COURT HELD A MAN COULD
NOT BE PUNISHED FOR ATTENDING A MEETING RUN BY COMMUNISTS. 

"THE GREATER THE IMPORTANCE OF SAFEGUARDING THE COMMUNITY FROM
INCITEMENTS TO THE OVERTHROW OF OUR INSTITUTIONS BY FORCE AND VIOLENCE,
THE MORE IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE THE
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN
ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE
END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND
THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN
LIES THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF
CONSTITUTIONAL GOVERNMENT."  /6/ 

/1/  IN INTRODUCING THE BILL OF RIGHTS IN THE HOUSE OF
REPRESENTATIVES, MADISON SAID:  "(BUT I BELIEVE THAT THE GREAT MASS OF
THE PEOPLE WHO OPPOSED (THE CONSTITUTION), DISLIKED IT BECAUSE IT DID
NOT CONTAIN EFFECTUAL PROVISIONS AGAINST THE ENCROACHMENTS ON
PARTICULAR RIGHTS . . . "  1 ANNALS OF CONG. 433.  CONGRESSMAN GOODHUE
ADDED:  "(IT IS THE WISH OF MANY OF OUR CONSTITUTENTS, THAT SOMETHING
SHOULD BE ADDED TO THE CONSTITUTION, TO SECURE IN A STRONGER MANNER
THEIR LIBERTIES FROM THE INROADS OF POWER."  ID., AT 426. 

/2/  THE OTHER PARTS WERE: 

"THE CIVIL RIGHTS OF NONE SHALL BE ABRIDGED ON ACCOUNT OF RELIGIOUS
BELIEF OR WORSHIP, NOR SHALL ANY NATIONAL RELIGION BE ESTABLISHED, NOR
SHALL THE FULL AND EQUAL RIGHTS OF CONSCIENCE BE IN ANY MANNER, OR ON
ANY PRETEXT, INFRINGED." 

"THE PEOPLE SHALL NOT BE RESTRAINED FROM PEACEABLY ASSEMBLING AND
CONSULTING FOR THEIR COMMON GOOD; NOR FROM APPLYING TO THE LEGISLATURE
BY PETITIONS, OR REMONSTRANCES, FOR REDRESS OF THEIR GRIEVANCES."  1
ANNALS OF CONG. 434. 

/3/  TR. OF ORAL ARG. 76. 

/4/  BRIEF FOR THE UNITED STATES 13-14. 

/5/  COMPARE THE VIEWS OF THE SOLICITOR GENERAL WITH THOSE OF JAMES
MADISON, THE AUTHOR OF THE FIRST AMENDMENT.  WHEN SPEAKING OF THE BILL
OF RIGHTS IN THE HOUSE OF REPRESENTATIVES, MADISON SAID:  "IF THEY (THE
FIRST TEN AMENDMENTS) ARE INCORPORATED INTO THE CONSTITUTION,
INDEPENDENT TRIBUNALS OF JUSTICE WILL CONSIDER THEMSELVES IN A PECULIAR
MANNER THE GUARDIANS OF THOSE RIGHTS; THEY WILL BE AN IMPENETRABLE
BULWARK AGAINST EVERY ASSUMPTION OF POWER IN THE LEGISLATIVE OR
EXECUTIVE; THEY WILL BE NATURALLY LED TO RESIST EVERY ENCROACHMENT UPON
RIGHTS EXPRESSLY STIPULATED FOR IN THE CONSTITUTION BY THE DECLARATION
OF RIGHTS."  1 ANNALS OF CONG. 439. 

/6/  DE JONGE V. OREGON, 299 U.S. 353, 365. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT I BELIEVE IT NECESSARY TO
EXPRESS MY VIEWS MORE FULLY. 

IT SHOULD BE NOTED AT THE OUTSET THAT THE FIRST AMENDMENT PROVIDES
THAT "CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE FREEDOM OF SPEECH,
OR OF THE PRESS."  THAT LEAVES, IN MY VIEW, NO ROOM FOR GOVERNMENTAL
RESTRAINT ON THE PRESS.  /1/ 

THERE IS, MOREOVER, NO STATUTE BARRING THE PUBLICATION BY THE PRESS
OF THE MATERIAL WHICH THE TIMES AND THE POST SEEK TO USE.  TITLE 18
U.S.C. 793(E) PROVIDES THAT "(WHOEVER HAVING UNAUTHORIZED POSSESSION
OF, ACCESS TO, OR CONTROL OVER ANY DOCUMENT, WRITING . . . OR
INFORMATION RELATING TO THE NATIONAL DEFENSE WHICH INFORMATION THE
POSSESSOR HAS REASON TO BELIEVE COULD BE USED TO THE INJURY OF THE
UNITED STATES OR TO THE ADVANTAGE OF ANY FOREIGN NATION, WILLFULLY
COMMUNICATES . . . THE SAME TO ANY PERSON NOT ENTITLED TO RECEIVE IT .
..  (SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN
TEN YEARS, OR BOTH."     THE GOVERNMENT SUGGESTS THAT THE WORD
"COMMUNICATES" IS BROAD ENOUGH TO ENCOMPASS PUBLICATION. 

THERE ARE EIGHT SECTIONS IN THE CHAPTER ON ESPIONAGE AND CENSORSHIP,
SECS. 792-799.  IN THREE OF THOSE EIGHT "PUBLIC" IS SPECIFICALLY
MENTIONED:  SEC. 794(B) APPLIES TO WHOEVER, IN TIME OF WAR, WITH INTENT
THAT THE SAME SHALL BE COMMUNICATED TO THE ENEMY, COLLECTS, RECORDS,
PUBLISHES, OR COMMUNICATES . . . (THE DISPOSITION OF ARMED FORCES)." 

GIVES AWAY" PHOTOGRAPHS OF DEFENSE INSTALLATIONS. 

"COMMUNICATES, FURNISHES, TRANSMITS, OR OTHERWISE MAKES AVAILABLE . . .
OR PUBLISHES: THE DESCRIBED MATERIAL.  /2/ 

THUS IT IS APPARENT THAT CONGRESS WAS CAPABLE OF AND DID DISTINGUISH
BETWEEN PUBLISHING AND COMMUNICATION IN THE VARIOUS SECTIONS OF THE
EXPIONAGE ACT. 

THE OTHER EVIDENCE THAT SEC. 793 DOES NOT APPLY TO THE PRESS IS A
REJECTED VERSION OF SEC. 793.  THAT VERSION READ:  "DURING ANY NATIONAL
EMERGENCY RESULTING FROM A WAR TO WHICH THE UNITED STATES IS A PARTY,
OR FROM THREAT OF SUCH A WAR, THE PRESIDENT MAY, BY PROCLAMATION,
DECLARE THE EXISTENCE OF SUCH EMERGENCY AND, BY PROCLAMATION, PROHIBIT
THE PUBLISHING OR COMMUNICATING OF, OR THE ATTEMPTING TO PUBLISH OR
COMMUNICATE ANY INFORMATION RELATING TO THE NATIONAL DEFENSE WHICH, IN
HIS JUDGMENT, IS OF SUCH CHARACTER THAT IT IS OR MIGHT BE USEFUL TO THE
ENEMY."  55 CONG.REC.  1763.  DURING THE DEBATES IN THE SENATE THE
FIRST AMENDMENT WAS SPECIFICALLY CITED AND THAT PROVISION WAS
DEFEATED.  55 CONG.REC.  2167. 

JUDGE GURFEIN'S HOLDING IN THE TIMES CASE THAT THIS ACT DOES NOT
APPLY TO THIS CASE WAS THEREFORE PREEMINENTLY SOUND.  MOREOVER, THE ACT
OF SEPTEMBER 23, 1950, IN AMENDING 18 U.S.C. 793 STATES IN SEC. 1(B)
THAT: 

     "NOTHING IN THIS ACT SHALL BE CONSTURED TO AUTHORIZE, REQUIRE,

  OR ESTABLISH MILITARY OR CIVILIAN CENSORSHIP OR IN ANY WAY TO

  LIMIT OR INFRINGE UPON FREEDOM OF THE PRESS OR OF SPEECH AS

  GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND NO

  REGULATION SHALL BE PROMULGATED HEREUNDER HAVING THAT EFFECT." 

  64 STAT. 987. 

THUS CONGRESS HAS BEEN FAITHFUL TO THE COMMAND OF THE FIRST AMENDMENT
IN THIS AREA. 

SO ANY POWER THAT THE GOVERNMENT POSSESSES MUST COME FROM ITS
"INHERENT POWER." 

THE POWER TO WAGE WAR IS "THE POWER TO WAGE WAR SUCCESSFULLY."  SEE
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 93.  BUT THE WAR POWER STEMS
FROM A DECLARATION OF WAR.  THE CONSTITUTION BY ART. I, SEC. 8, GIVES
CONGRESS, NOT THE PRESIDENT, POWER "(TO DECLARE WAR."  NOWHERE ARE
PRESDIENTIAL WARS AUTHORIZED.  WE NEED NOT DECIDE THEREFORE WHAT
LEVELING EFFECT THE WAR POWER OF CONGRESS MIGHT HAVE. 

THESE DISCLOSURES /3/  MAY HAVE A SERIOUS IMPACT.  BUT THAT IS NO
BASIS FOR SANCTIONING A PREVIOUS RESTRAINT ON THE PRESS.  AS STATED BY
CHIEF JUSTICE HUGHES IN NEAR V. MINNESOTA, 283 U.S. 697, 710-720: 

"WHILE RECKLESS ASSAULTS UPON PUBLIC MEN, AND EFFORTS TO BRING
OBLOQUY UPON THOSE WHO ARE ENDEAVORING FAITHFULLY TO DISCHARGE OFFICIAL
DUTIES, EXERT A BALEFUL INFLUENCE AND DESERVE THE SEVEREST CONDEMNATION
IN PUBLIC OPINION, IT CANNOT BE SAID THAT THIS ABUSE IS GREATER, AND IT
IS BELIEVED TO BE LESS, THAN THAT WHICH CHARACTERIZED THE PERIOD IN
WHICH OUR INSTITUTIONS TOOK SHAPE.  MEANWHILE, THE ADMINISTRATION OF
GOVERNMENT HAS BECOME MORE COMPLEX, THE OPPORTUNITIES FOR MALFEASANCE
AND CORRUPTION HAVE MULTIPLIED, CRIME HAS GROWN TO MOST SERIOUS
PROPORTIONS, AND THE DANGER OF ITS PROTECTION BY UNFAITHFUL OFFICIALS
AND OF THE IMPAIRMENT OF THE FUNDAMENTAL SECURITY OF LIFE AND PROPERTY
BY CRIMINAL ALLIANCES AND OFFICIAL NEGLECT, EMPHASIZES THE PRIMARY NEED
OF A VIGILANT AND COURAGEOUS PRESS, ESPECIALLY IN GREAT CITIES.  THE
FACT THAT THE LIBERTY OF THE PRESS MAY BE ABUSED BY MISCREANT PURVEYORS
OF SCANDAL DOES NOT MAKE ANY THE LESS NECESSARY THE IMMUNITY OF THE
PRESS FROM PREVIOUS RESTRAINT IN DEALING WITH OFFICIAL MISCONDUCT." 

AS WE STATED ONLY THE OTHER DAY IN ORGANIZATION FOR A BETTER AUSTIN
V. KEEFE, 402 U.S. 415, 419, "(ANY PRIOR RESTRAINT ON EXPRESSION COMES
TO THIS COURT WITH A 'HEAVY PRESUMPTION' AGAINST ITS CONSTITUTIONAL
VALIDITY." 

THE GOVERNMENT SAYS THAT IT HAS INHERENT POWERS TO GO INTO COURT AND
OBTAIN AN INJUNCTION TO PROTECT THE NATIONAL INTEREST, WHICH IN THIS
CASE IS ALLEGED TO BE NATIONAL SECURITY. 

NEAR V. MINNESOTA, 283 U.S. 697, REPUDIATED THAT EXPANSIVE DOCTRINE
IN NO UNCERTAIN TERMS. 

THE DOMINANT PURPOSE OF THE FIRST AMENDMENT WAS TO PROHIBIT THE
WIDESPREAD PRACTICE OF GOVERNMENTAL SUPPRESSION OF EMBARRASSING
INFORMATION.  IT IS COMMON KNOWLEDGE THAT THE FIRST AMENDMENT WAS
ADOPTED AGAINST THE WIDESPREAD USE OF THE COMMON LAW OF SEDITIOUS LIBEL
TO PUNISH THE DISSEMINATION OF MATERIAL THAT IS EMBARRASSING TO THE
POWERS-THAT-BE.  SEE T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION,
C. V (1970); Z. CHAFEE, FREE SPEECH IN THE UNITED STATES, C. XIII
(1941).  THE PRESENT CASE WILL, I THINK, GO DOWN IN HISTORY AS THE MOST
DRAMATIC ILLUSTRATION OF THAT PRINCIPLE.  A DEBATE OF LARGE PROPORTIONS
GOES ON IN THE NATION OVER OUR POSTURE IN VIETNAM.  THAT DEBATE
ANTEDATED THE DISCLOSURE OF THE CONTENTS OF THE PRESENT DOCUMENTS.  THE
LATTER ARE HIGHLY RELEVANT TO THE DEBATE IN PROGRESS. 

SECRECY IN GOVERNMENT IS FUNDAMENTALLY ANTI-DEMOCRATIC, PERPETUATING
BUREAUCRATIC ERRORS.  OPEN DEBATE AND DISCUSSION OF PUBLIC ISSUES ARE
VITAL TO OUR NATIONAL HEALTH.  ON PUBLIC QUESTIONS THERE SHOULD BE
"UNINHIBITED, ROBUST, AND WIDE-OPEN" DEBATE.  NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254, 269-270. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS IN THE POST
CASE, VACATE THE STAY OF THE COURT OF APPEALS IN THE TIMES CASE AND
DIRECT THAT IT AFFIRM THE DISTRICT COURT. 

THE STAYS IN THESE CASES THAT HAVE BEEN IN EFFECT FOR MORE THAN A
WEEK CONSTITUTE A FLOUTING OF THE PRINCIPLES OF THE FIRST AMENDMENT AS
INTERPRETED IN NEAR V. MINNESOTA. 

/1/  SEE BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 267 (DISSENTING
OPINION OF MR. JUSTICE BLACK), 284 (MY DISSENTING OPINION); ROTH V.
UNITED STATES, 354 U.S. 476, 508 (MY DISSENTING OPINION WHICH MR.
JUSTICE BLACK JOINED); YATES V. UNITED STATES, 354 U.S. 298, 339
(SEPARATE OPINION OF MR. JUSTICE BLACK WHICH I JOINED); NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S. 254, 293 (CONCURRING OPINION OF MR. JUSTICE
BLACK WHICH I JOINED); GARRISON V. LOUISIANA, 379 U.S. 64, 80 (MY
CONCURRING OPINION WHICH MR. JUSTICE BLACK JOINED). 

/2/  THESE DOCUMENTS CONTAIN DATA CONCERNING THE COMMUNICATIONS
SYSTEM OF THE UNITED STATES, THE PUBLICATION OF WHICH IS MADE A CRIME. 
BUT THE CRIMINAL SANCTION IS NOT URGED BY THE UNITED STATES AS THE
BASIS OF EQUITY POWER. 

/3/  THERE ARE NUMEROUS SETS OF THIS MATERIAL IN EXISTENCE AND THEY
APPARENTLY ARE NOT UNDER ANY CONTROLLED CUSTODY.  MOREOVER, THE
PRESIDENT HAS SENT A SET TO THE CONGRESS.  WE START THEN WITH A CASE
WHERE THERE ALREADY IS RATHER WIDE DISTRIBUTION OF THE MATERIAL THAT IS
DESTINED FOR PUBLICITY, NOT SECRECY.  I HAVE GONE OVER THE MATERIAL
LISTED IN THE IN CAMERA BRIEF OF THE UNITED STATES.  IT IS ALL HISTORY,
NOT FUTURE EVENTS.  NONE OF IT IS MORE RECENT THAN 1968. 

MR. JUSTICE BRENNAN, CONCURRING. 

        I 

I WRITE SEPARATELY IN THESE CASES ONLY TO EMPHASIZE WHAT SHOULD BE
APPARENT:  THAT OUR JUDGMENTS IN THE PRESENT CASES MAY NOT BE TAKEN TO
INDICATE THE PROPRIETY, IN THE FUTURE, OF ISSUING TEMPORARY STAYS AND
RESTRAINING ORDERS TO BLOCK THE PUBLICATION OF MATERIAL SOUGHT TO BE
SUPPRESSED BY THE GOVERNMENT.  SO FAR AS I CAN DETERMINE, NEVER BEFORE
HAS THE UNITED STATES SOUGHT TO ENJOIN A NEWSPAPER FROM PUBLISHING
INFORMATION IN ITS POSSESSION.  THE RELATIVE NOVELTY OF THE QUESTIONS
PRESENTED, THE NECESSARY HASTE WITH WHICH DECISIONS WERE REACHED, THE
MAGNITUDE OF THE INTERESTS ASSERTED, AND THE FACT THAT ALL THE PARTIES
HAVE CONCENTRATED THEIR ARGUMENTS UPON THE QUESTION WHETHER PERMANENT
RESTRAINTS HERETOFORE IMPOSED IN THESE CASES.  CERTAINLY IT IS
DIFFICULT TO FAULT THE SEVERAL COURTS BELOW FOR SEEKING TO ASSURE THAT
THE ISSUES HERE INVOLVED WERE PRESERVED FOR ULTIMATE REVIEW BY THIS
COURT.  BUT EVEN IF IT BE ASSUMED THAT SOME OF THE INTERIM RESTRAINTS
WERE PROPER IN THE TWO CASES BEFORE US, THAT ASSUMPTION HAS NO BEARING
UPON THE PROPRIETY OF SIMILAR JUDICIAL ACTION IN THE FUTURE.  TO BEGIN
WITH, THERE HAS NOW BEEN AMPLE TIME FOR REFLECTION AND JUDGMENT;
WHATEVER VALUES THERE MAY BE IN THE PRESERVATION OF NOVEL QUESTIONS FOR
APPELLATE REVIEW MAY NOT SUPPORT ANY RESTRAINTS IN THE FUTURE.  MORE
IMPORTANT, THE FIRST AMENDMENT STANDS AS AN ABSOLUTE BAR TO THE
IMPOSITION OF JUDICIAL RESTRAINTS IN CIRCUMSTANCES OF THE KIND
PRESENTED BY THESE CASES. 

        II 

THE ERROR THAT HAS PERVADED THESE CASES FROM THE OUTSET WAS THE
GRANTING OF ANY INJUNCTIVE RELIEF WHATSOEVER, INTERIM OR OTHERWSIE. 
THE ENTIRE THRUST OF THE GOVERNMENT'S CLAIM THORUGHOUT THESE CASES HAS
BEEN THAT PUBLICATION OF THE MATERIAL SOUGHT TO BE ENJOINED "COULD," OR
"MIGHT," OR "MAY" PREJUDICE THE NATIONAL INTEREST IN VARIOUS WAYS.  BUT
THE FIRST AMENDMENT TOLERATES ABSOLUTELY NO PRIOR JUDICIAL RESTRAINTS
OF THE PRESS PREDICATED UPON SURMISE OR CONJECTURE THAT UNTOWARD
CONSEQUENCES MAY RESULT.  /1/  OUR CASES, IT IS TRUE, HAVE INDICATED
THAT THERE IS A SINGLE, EXTREMELY NARROW CLASS OF CASES IN WHICH THE
FIRST AMENDMENT'S BAN ON PRIOR JUDICIAL RESTRAINT MAY BE OVERRIDDEN. 
OUR CASES HAVE THUS FAR INDICATED THAT SUCH CASES MAY ARISE ONLY WHEN
THE NATION "IS AT WAR,"  SCHENCK V. UNITED STATES, 249 U.S. 47, 52
(1919), DURING WHICH TIMES "(NO ONE WOULD QUESTION BUT THAT A
GOVERNMENT MIGHT PREVENT ACTUAL OBSTRUCTION TO ITS RECRUITING SERVICE
OR THE PUBLICATION OF THE SAILING DATES OF TRANSPORTS OR THE NUMBER AND
LOCATION OF TROOPS."  NEAR V. MINNESOTA, 283 U.S. 697, 716 (1931). 
EVEN IF THE PRESENT WORLD SITUATION WERE ASSUMED TO BE TANTAMOUNT TO A
TIME OF WAR, OR IF THE POWER OF PRESENTLY AVAILABLE ARMAMENTS WOULD
JUSTIFY EVEN IN PEACETIME THE SUPPRESSION OF INFORMATION THAT WOULD SET
IN MOTION A NUCLEAR HOLOCAUST, IN NEITHER OF THESE ACTIONS HAS THE
GOVERNMENT PRESENTED OR EVEN ALLEGED THT PUBLICATION OF ITEMS FROM OR
BASED UPON THE MATERIAL AT ISSUE WOULD CAUSE THE HAPPENING OF AN EVENT
OF THAT NATURE.  "(THE CHIEF PURPOSE OF (THE FIRST AMENDMENT'S)
GUARANTY (IS) TO PREVENT PREVIOUS RESTRAINTS UPON PUBLICATION."  NEAR
V. MINNESOTA, SUPRA, AT 713.  THUS, ONLY GOVERNMENTAL ALLEGATION AND
PROOF THAT PUBLICATION MUST INEVITABLY, DIRECTLY, AND IMMEDIATELY CAUSE
THE OCCURRENCE OF AN EVENT KINDRED TO IMPERILING THE SAFETY OF A
TRANSPORT ALREADY AT SEA CAN SUPPORT EVEN THE ISSUANCE OF AN INTERIM
RESTRAINING ORDER.  IN NO EVENT MAY MERE CONCLUSIONS BE SUFFICIENT:
FOR IF THE EXECUTIVE BRANCH SEEKS JUDICIAL AID IN PREVENTING
PUBLICATION, IT MUST INEVITABLY SUBMIT THE BASIS UPON WHICH THAT AID IS
SOUGHT TO SCRUTINY BY THE JUDICIARY.  AND THEREFORE, EVERY RESTRAINT
ISSUED IN THIS CASE, WHATEVER ITS FORM, HAS VIOLATED THE FIRST
AMENDMENT-- AND NOT LESS SO BECAUSE THAT RESTRAINT WAS JUSTIFIED AS
NECESSARY TO AFFORD THE COURTS AN OPPORTUNITY TO EXAMINE THE CLAIM MORE
THOROUGHLY.  UNLESS AND UNTIL THE GOVERNMENT HAS CLEARLY MADE OUT ITS
CASE, THE FIRST AMENDMENT COMMANDS THAT NO INJUNCTION MAY ISSUE. 

/1/  FREEDMAN V. MARYLAND, 380 U.S. 51 (1965), AND SIMILAR CASES
REGARDING TEMPORARY RESTRAINTS OF ALLEGEDLY OBSCENE MATERIALS ARE NOT
IN POINT.  FOR THOSE CASES REST UPON THE PROPOSITION THAT "OBSCENITY IS
NOT PROTECTED BY THE FREEDOMS OF SPEECH AND PRESS."  ROTH V. UNITED
STATES, 354 U.S. 476, 481 (1957).  HERE THERE IS NO QUESTION BUT THAT
THE MATERIAL SOUGHT TO BE SUPPRESSED IS WITHIN THE PROTECTION OF THE
FIRST AMENDMENT; THE ONLY QUESTION IS WHETHER, NOTWITHSTANDING THAT
FACT, ITS PUBLICATION MAY BE ENJOINED FOR A TIME BECAUSE OF THE
PRESENCE OF AN OVERWHELMING NATIONAL INTEREST.  SIMILARLY, COPYRIGHT
CASES HAVE NO PERTINENCE HERE:  THE GOVERNMENT IS NOT ASSERTING AN
INTEREST IN THE PARTICULAR FORM OF WORDS CHOSEN IN THE DOCUMENTS, BUT
IS SEEKING TO SUPPRESS THE IDEAS EXPRESSED THEREIN.  AND THE COPYRIGHT
LAWS, OF COURSE, PROTECT ONLY THE FORM OF EXPRESSION AND NOT THE IDEAS
EXPRESSED. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE WHITE JOINS, CONCURRING. 

IN THE GOVERNMENTAL STRUCTURE CREATED BY OUR CONSTITUTION, THE
EXECUTIVE IS ENDOWED WITH ENORMOUS POWER IN THE TWO RELATED AREAS OF
NATIONAL DEFENSE AND INTERNATIONAL RELATIONS.  THIS POWER, LARGELY
UNCHECKED BY THE LEGISLATIVE /1/  AND JUDICIAL /2/  BRANCHES, HAS BEEN
PRESSED TO THE VERY HILT SINCE THE ADVENT OF THE NUCLEAR MISSILE AGE. 
FOR BETTER OR FOR WORSE, THE SIMPLE FACT IS THAT A PRESIDENT OF THE
UNITED STATES POSSESSES VASTLY GREATER CONSITUTIONAL INDEPENDENCE IN
THESE TWO VITAL AREAS OF POWER THAN DOES, SAY, A PRIME MINISTER OF A
COUNTRY WITH A PARLIAMENTARY FORM OF GOVERNMENT. 

IN THE ABSENCE OF THE GOVERNMENTAL CHECKS AND BALANCES PRESENT IN
OTHER AREAS OF OUR NATIONAL LIFE, THE ONLY EFFECTIVE RESTRAINT UPON
EXECUTIVE POLICY AND POWER IN THE AREAS OF NATIONAL DEFENSE AND
INTERNATIONAL AFFAIRS MAY LIE IN AN ENLIGHTENED CITIZENRY-- IN AN
INFORMED AND CRITICAL PUBLIC OPINION WHICH ALONE CAN HERE PROTECT THE
VALUES OF DEMOCRATIC GOVERNMENT.  FOR THIS REASON, IT IS PERHAPS HERE
THAT A PRESS THAT IS ALERT, AWARE, AND FREE MOST VITALLY SERVES THE
BASIC PURPOSE OF THE FIRST AMENDMENT.  FOR WITHOUT AN INFORMED AND FREE
PRESS THERE CANNOT BE AN ENLIGHTENED PEOPLE. 

YET IT IS ELEMENTARY THAT THE SUCCESSFUL CONDUCT OF INTERNATIONAL
DIPLOMACY AND THE MAINTENANCE OF AN EFFECTIVE NATIONAL DEFENSE REQUIRE
BOTH CONFIDENTIALITY AND SECRECY.  OTHER NATIONS CAN HARDLY DEAL WITH
THIS NATION IN AN ATMOSPHERE OF MUTUAL TRUST UNLESS THEY CAN BE ASSURED
THAT THEIR CONFIDENCES WILL BE KEPT.  AND WITHIN OUR OWN EXECUTIVE
DEPARTMENTS, THE DEVELOPMENT OF CONSIDERED AND INTELLIGENT
INTERNATIONAL POLICIES WOULD BE IMPOSSIBLE IF THOSE CHARGED WITH THEIR
FORMULATION COULD NOT COMMUNICATE WITH EACH OTHER FREELY, FRANKLY, AND
IN CONFIDENCE.  IN THE AREA OF BASIC NATIONAL DEFENSE THE FREQUENT NEED
FOR ABSOLUTE SECRECY IS, OF COURSE, SELF-EVIDENT.     I THINK THERE CAN
BE BUT ONE ANSWER TO THIS DILEMMA, IF DILEMMA IT BE.  THE
RESPONSIBILITY MUST BE WHERE THE POWER IS.  /3/  IF THE CONSTITUTION
GIVES THE EXECUTIVE A LARGE DEGREE OF UNSHARED POWER IN THE CONDUCT OF
FOREIGN AFFAIRS AND THE MAINTENANCE OF OUR NATIONAL DEFENSE, THEN UNDER
THE CONSTITUTION THE EXECUTIVE MUST HAVE THE LARGELY UNSHARED DUTY TO
DETERMINE AND PRESERVE THE DEGREE OF INTERNAL SECURITY NECESSARY TO
EXERCISE THAT POWER SUCCESSFULLY.  IT IS AN AWESOME RESPONSIBILITY
REQUIRING JUDGMENT AND WISDOM OF A HIGH ORDER.  I SHOULD SUPPOSE THAT
MORAL, POLITICAL, AND PRACTICAL CONSIDERATIONS WOULD DICTATE THAT A
VERY FIRST PRINCIPLE OF THAT WISDOM WOULD BE AN INSISTENCE UPON
AVOIDING SECRECY FOR ITS OWN SAKE.  FOR WHEN EVERYTHING IS CLASSIFIED,
THEN NOTHING IS CLASSIFIED, AND THE SYSTEM BECOMES ONE TO BE
DISREGARDED BY THE CYNICAL OR THE CARELESS, AND TO BE MANIPULATED BY
THOSE INTENT ON SELF-PROTECTION OR SELF-PROMOTION.  I SHOULD SUPPOSE,
IN SHORT, THAT THE HALLMARK OF A TRULY EFFECTIVE INTERNAL SECURITY
SYSTEM WOULD BE THE MAXIMUM POSSIBLE DISCLOSURE, RECOGNIZING THAT
SECRECY CAN BEST BE PRESERVED ONLY WHEN CREDIBILITY IS TRULY
MAINTAINED.  BUT BE THAT AS IT MAY, IT IS CLEAR TO ME THAT IT IS THE
CONSTITUTIONAL DUTY OF THE EXECUTIVE-- AS A MATTER OF SOVEREIGN
PREROGATIVE AND NOT AS A MATTER OF LAW AS THE COURTS KNOW LAW-- THROUGH
THE PROMULAGTION AND ENFORCEMENT OF EXECUTIVE REGULATIONS, TO PROTECT
THE CONFIDENTIALITY NECESSARY TO CARRY OUT ITS RESPONSIBILITIES IN THE
FIELDS OF INTERNAL RELATIONS AND NATIONAL DEFENSE. 

THIS IS NOT TO SAY THAT CONGRESS AND THE COURTS HAVE NO ROLE TO
PLAY.  UNDOUBTEDLY CONGRESS HAS THE POWER TO ENACT SPECIFIC AND
APPROPRIATE CRIMINAL LAWS TO PROTECT GOVERNMENT PROPERTY AND PRESERVE
GOVERNMENT SECRETS.  CONGRESS HAS PASSED SUCH LAWS, AND SEVERAL OF THEM
ARE OF VERY COLORABLE RELEVANCE TO THE APPARENT CIRCUMSTANCES OF THESE
CASES.  AND IF A CRIMINAL PROSECUTION IS INSTITUTED, IT WILL BE THE
RESPONSIBILITY OF THE COURTS TO DECIDE THE APPLICABILITY OF THE
CRIMINAL LAW UNDER WHICH THE CHARGE IS BROUGHT.  MOREOVER, IF CONGRESS
SHOULD PASS A SPECIFIC LAW AUTHORIZING CIVIL PROCEEDINGS IN THIS FIELD,
THE COURTS WOULD LIKEWISE HAVE THE DUTY TO DECIDE THE CONSTITUTIONALITY
OF SUCH A LAW AS WELL AS ITS APPLICABILITY TO THE FACTS PROVED. 

BUT IN THE CASES BEFORE US WE ARE ASKED NEITHER TO CONSTRUE SPECIFIC
REGULATIONS NOR TO APPLY SPECIFIC LAWS.  WE ARE ASKED, INSTEAD, TO
PERFORM A FUNCTION THAT THE CONSTITUTION GAVE TO THE EXECUTIVE, NOT THE
JUDICIARY.  WE ARE ASKED, QUITE SIMPLY, TO PREVENT THE PUBLICATION BY
TWO NEWSPAPERS OF MATERIAL THAT THE EXECUTIVE BRANCH INSISTS SHOULD
NOT, IN THE NATIONAL INTEREST, BE PUBLISHED.  I AM CONVINCED THAT THE
EXECUTIVE IS CORRECT WITH RESPECT TO SOME OF THE DOCUMENTS INVOLVED. 
BUT I CANNOT SAY THAT DISCLOSURE OF ANY OF THEM WILL SURELY RESULT IN
DIRECT, IMMEDIATE, AND IRREPARABLE DAMAGE TO OUR NATION OR ITS PEOPLE. 
THAT BEING SO, THERE CAN UNDER THE FIRST AMENDMENT BE BUT ONE JUDICIAL
RESOLUTION OF THE ISSUES BEFORE US.  I JOIN THE JUDGMENTS OF THE
COURT. 

/1/  THE PRESIDENT'S POWER TO MAKE TREATIES AND TO APPOINT
AMBASSSDORS IS, OF COURSE, LIMITED BY THE REQUIREMENT OF ART. II, SEC.
2, OF THE CONSTITUTION THAT HE OBTAIN THE ADVICE AND CONSENT OF THE
SENTATE.  ARTICLE I, SEC. 8, EMPOWERS CONGRESS TO "RAISE AND SUPPORT
ARMIES,"  AND "PROVIDE AND MAINTAIN A NAVY."  AND, OF COURSE, CONGRESS
ALONE CAN DECLARE WAR.  THIS POWER WAS LAST EXERCISED ALMOST 30 YEARS
AGO AT THE INCEPTION OF WORLD WAR II.  SINCE THE END OF THAT WAR IN
1945, THE ARMED FORCES OF THE UNITED STATES HAVE SUFFERED APPROXIMATELY
HALF A MILLION CASUALTIES IN VARIOUS PARTS OF THE WORLD. 

/2/  SEE CHICAGO & SOUTHERN AIR LINES V. WATERMAN S.S. CORP., 333
U.S. 103; HIRABAYASHI V. UNITED STATES, 320 U.S. 81; UNITED STATES V.
CURTISS-WRIGHT CORP. 299 U.S. 304; CF. MORA V. MCNAMARA, 128
U.S.APP.D.C. 297, 387 F.2D 862, CERT. DENIED, 389 U.S. 934. 

/3/  "IT IS QUITE APPARENT THAT IF, IN THE MAINTENANCE OF OUR
INTERNATIONAL RELATIONS, EMBARRASSMENT-- PERHAPS SERIOUS EMBARRASSMENT-
IS TO BE AVOIDED AND SUCCESS FOR OUR AIMS ACHIEVED, CONGRESSIONAL
LEGISLATION WHICH IS TO BE MADE EFFECTIVE THROUGH NEGOTIATION AND
INQUIRY WITHIN THE INTERNATIONAL FIELD MUST OFTEN ACCORD TO THE
PRESIDENT A DEGREE OF DISCRETION AND FREEDOM FROM STATUTORY RESTRICTION
WHICH WOULD NOT BE ADMISSIBLE WERE DOMESTIC AFFAIRS ALONE INVOLVED. 
MOREOVER, HE, NOT CONGRESS, HAS THE BETTER OPPORTUNITY OF KNOWING THE
CONDITIONS WHICH PREVAIL IN FOREIGN COUNTRIES, AND ESPECIALLY IS THIS
TRUE IN TIME OF WAR.  HE HAS HIS CONFIDENTIAL SOURCES OF INFORMATION. 
HE HAS HIS AGENTS IN THE FORM OF DIPLOMATIC, CONSULAR AND OTHER
OFFICIALS.  SECRECY IN RESPECT OF INFORMATION GATHERED BY THEM MAY BE
HIGHLY NECESSARY, AND THE PREMATURE DISCLOSURE OF IT PRODUCTIVE OF
HARMFUL RESULTS.  INDEED, SO CLEARLY IS THIS TRUE THAT THE FIRST
PRESIDENT REFUSED TO ACCEDE TO A REQUEST TO LAY BEFORE THE HOUSE OF
REPRESENTATIVES THE INSTRUCTIONS, CORRESPONDENCE AND DOCUMENTS RELATING
TO THE NEGOTIATION OF THE JAY TREATY-- A REFUSAL THE WISDOM OF WHICH
WAS RECOGNIZED BY THE HOUSE ITSELF AND HAS NEVER SINCE BEEN DOUBTED . .
. "  UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304, 320. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

I CONCUR IN TODAY'S JUDGMENTS, BUT ONLY BECAUSE OF THE CONCEDEDLY
EXTRAORDINARY PROTECTION AGAINST PRIOR RESTRAINTS ENJOYED BY THE PRESS
UNDER OUR CONSTITUTIONAL SYSTEM.  I DO NOT SAY THAT IN NO CIRCUMSTANCES
WOULD THE FIRST AMENDMENT PERMIT AN INJUNCTION AGAINST PUBLISHING
INFORMATION ABOUT GOVERNMENT PLANS OR OPERATIONS.  /1/  NOR, AFTER
EXAMINING THE MATERIALS THE GOVERNMENT CHARACTERIZES AS THE MOST
SENSITIVE AND DESTRUCTIVE, CAN I DENY THAT REVELATION OF THESE
DOCUMENTS WILL DO SUBSTANTIAL DAMAGE TO PUBLIC INTERESTS.  INDEED, I AM
CONFIDENT THAT THEIR DISCLOSURE WILL HAVE THAT RESULT.  BUT I
NEVERTHELESS AGREE THAT THE UNITED STATES HAS NOT SATISFIED THE VERY
HEAVY BURDEN THAT IT MUST MEET TO WARRANT AN INJUNCTION AGAINST
PUBLICATION IN THESE CASES, AT LEAST IN THE ABSENCE OF EXPRESS AND
APPROPRIATELY LIMITED CONGRESSIONAL AUTHORIZATION FOR PRIOR RESTRAINTS
IN CIRCUMSTANCES SUCH AS THESE. 

THE GOVERNMENT'S POSITION IS SIMPLY STATED:  THE RESPONSIBILITY OF
THE EXECUTIVE FOR THE CONDUCT OF THE FOREIGN AFFAIRS AND FOR THE
SECURITY OF THE NATION IS SO BASIC THAT THE PRESIDENT IS ENTITLED TO AN
INJUNCTION AGAINST PUBLICATION OF A NEWSPAPER STORY WHENEVER HE CAN
CONVINCE A COURT THAT THE INFORMATION TO BE REVEALED THREATENS "GRAVE
AND IRREPARABLE" INJURY TO THE PUBLIC INTEREST; /2/  AND THE INJUNCTION
SHOULD ISSUE WHETHER OR NOT THE MATERIAL TO BE PUBLISHED IS CLASSIFED,
WHETHER OR NOT PUBLICATION WOULD BE LAWFUL UNDER RELEVANT CRIMINAL
STATUTES ENACTED BY CONGRESS, AND REGARDLESS OF THE CIRCUMSTANCES BY
WHICH THE NEWSPAPER CAME INTO POSSESSION OF THE INFORMATION. 

AT LEAST IN THE ABSENCE OF LEGISLATION BY CONGRESS, BASED ON ITS OWN
INVESTIGATIONS AND FINDINGS, I AM QUITE UNABLE TO AGREE THAT THE
INHERENT POWERS OF THE EXECUTIVE AND THE COURTS REACH SO FAR AS TO
AUTHORIZE REMEDIES HAVING SUCH SWEEPING POTENTIAL FOR INHIBITING
PUBLICATIONS BY THE PRESS.  MUCH OF THE DIFFICULTY INHERES IN THE
"GRAVE AND IRREPARABLE DANGER" STANDARD SUGGESTED BY THE UNITED
STATES.  IF THE UNITED STATES WERE TO HAVE JUDGMENT UNDER SUCH A
STANDARD IN THESE CASES, OUR DECISION WOULD BE OF LITTLE GUILDANCE TO
OTHER COURTS IN OTHER CASES, FOR THE MATERIAL AT ISSUE HERE WOULD NOT
BE AVAILABLE FROM THE COURT'S OPINION OR FROM PUBLIC RECORDS, NOR WOULD
IT BE PUBLISHED BY THE PRESS.  INDEED, EVEN TODAY WHERE WE HOLD THAT
THE UNITED STATES HAS NOT MET ITS BURDEN, THE MATERIAL REMAINS SEALED
IN COURT RECORDS AND IT IS PROPERLY NOT DISCUSSED IN TODAY'S OPINIONS. 
MOREOVER, BECAUSE THE MATERIAL POSES SUBSTANTIAL DANGERS TO NATIONAL
INTERESTS AND BECAUSE OF THE HAZARDS OF CRIMINAL SANCTIONS, A
RESPONSIBLE PRESS MAY CHOOSE NEVER TO PUBLISH THE MORE SENSITIVE
MATERIALS.  TO SUSTAIN THE GOVERNMENT IN THESE CASES WOULD START THE
COURTS DOWN A LONG AND HAZARDOUS ROAD THAT I AM NOT WILLING TO TRAVEL,
AT LEAST WITHOUT CONGRESSIONAL GUIDANCE AND DIRECTION. 

IT IS NOT EASY TO REJECT THE PROPOSITION URGED BY THE UNITED STATES
AND TO DENY RELIEF ON ITS GOOD-FAITH CLAIMS IN THESE CASES THAT
PUBLICATION WILL WORK SERIOUS DAMAGE TO THE COUNTRY.  BUT THAT
DISCOMFITURE IS CONSIDERABLY DISPELLED BY THE INFREQUENCY OF PRIOR
RESTRAINT CASES.  NORMALLY, PUBLICATION WILL OCCUR AND THE DAMAGE BE
DONE BEFORE THE GOVERNMENT HAS EITHER OPPORTUNITY OR GROUNDS FOR
SUPPRESSION.  SO HERE, PUBLICATION HAS ALREADY BEGUN AND A SUBSTANTIAL
PART OF THE THREATENED DAMAGE HAS ALREADY OCCURRED.  THE FACT OF A
MASSIVE BREAKDOWN IN SECURITY IS KNOWN, ACCESS TO THE DOCUMENTS BY MANY
UNAUTHORIZED PEOPLE IS UNDENIABLE, AND THE EFFICACY OF EQUITABLE RELIEF
AGAINST THESE OR OTHER NEWSPAPERS TO AVERT ANTICIPATED DAMAGE IS
DOUBTFUL AT BEST. 

WHAT IS MORE, TERMINATING THE BAN ON PUBLICATION OF THE RELATIVELY
FEW SENSITIVE DOCUMENTS THE GOVERNMENT NOW SEEKS TO SUPPRESS DOES NOT
MEAN THAT THE LAW EITHER REQUIRES OR INVITES NEWSPAPERS OR OTHERS TO
PUBLISH THEM OR THAT THEY WILL BE IMMUNE FROM CRIMINAL ACTION IF THEY
DO.  PRIOR RESTRAINTS REQUIRE AN UNUSUALLY HEAVY JUSTIFICATION UNDER
THE FIRST AMENDMENT; BUT FAILURE BY THE GOVERNMENT TO JUSTIFY PRIOR
RESTRAINTS DOES NOT MEASURE ITS CONSTITUTIONAL ENTITLEMENT TO A
CONVICTION FOR CRIMINAL PUBLICATION.  THAT THE GOVERNMENT MISTAKENLY
CHOSE TO PROCEED BY INJUNCTION DOES NOT MEAN THAT IT COULD NOT
SUCCESSFULLY PROCEED IN ANOTHER WAY. 

WHEN THE ESPIONAGE ACT WAS UNDER CONSIDERATION IN 1917, CONGRESS
ELIMINATED FROM THE BILL A PROVISION THAT WOULD HAVE GIVEN THE
PRESIDENT BROAD POWERS IN TIME OF WAR TO PROSCRIBE, UNDER THREAT OF
CRIMINAL PENALTY, THE PUBLICATION OF VARIOUS CATEGORIES OF INFORMATION
RELATED TO THE NATIONAL DEFENSE.  /3/  CONGRESS AT THAT TIME WAS
UNWILLING TO CLOTHE THE PRESIDENT WITH WUCH FAR-REACHING POWERS TO
MONITOR THE PRESS, AND THOSE OPPOSED TO THIS PART OF THE LEGISLATION
ASSUMED THAT A NECESSARY CONCOMITANT OF SUCH POWER WAS THE POWER TO
"FILTER OUT THE NEWS TO THE PEOPLE THROUGH SOME MAN."  55 CONG.REC. 
2008 (REMARKS OF SEN. ASHURST).  HOWEVER, THESE SAME MEMBERS OF
CONGRESS APPEARED TO HAVE LITTLE DOUBT THAT NEWSPAPERS WOULD BE SUBJECT
TO CRIMINAL PROSECUTION IF THEY INSISTED ON PUBLISHING INFORMATION OF
THE TYPE CONGRESS HAD ITSELF DETERMINED SHOULD NOT BE REVEALED. 
SENATOR ASHURST, FOR EXAMPLE, WAS QUITE SURE THAT THE EDITOR OF SUCH A
NEWSPAPER "SHOULD BE PUNISHED IF HE DID PUBLISH INFORMATION AS TO THE
MOVEMENTS OF THE FLEET, THE TROOPS, THE AIRCRAFT, THE LOCATION OF POWER
FACTORIES, THE LOCATION OF DEFENSE WORKS, AND ALL THAT SORT OF THING." 
ID., AT 2009.  /4/ 

THE CRIMINAL CODE CONTAINS NUMEROUS PROVISIONS POTENTIALLY RELEVANT
TO THESE CASES.  SECTION 797 /5/  MAKES IT A CRIME TO PUBLISH CERTAIN
PHOTOGRAPHS OR DRAWINGS OF MILITARY INSTALLATIONS.  SECTION 798, /6/
ALSO IN PRECISE LANGUAGE, PROSCRIBES KNOWING AND WILLFUL PUBLICATION OF
ANY CLASSIFIED INFORMATION CONCERNING THE CRYPTOGRAPHIC SYSTEMS OR
COMMUNICATION INTELLIGENCE ACTIVITIES OF THE UNITED STATES AS WELL AS
ANY INFORMATION OBTAINED FROM COMMUNICATION INTELLIGENCE OPERATIONS. 
/7/  IF ANY OF THE MATERIAL HERE AT ISSUE IS OF THIS NATURE, THE
NEWSPAPERS ARE PRESUMABLY NOW ON FULL NOTICE OF THE POSITION OF THE
UNITED STATES AND MUST FACE THE CONSEQUENCES IF THEY PUBLISH.  I WOULD
HAVE NO DIFFICULTY IN SUSTAINING CONVICTIONS UNDER THESE SECTIONS ON
FACTS THAT WOULD NOT JUSTIFY THE INTERVENTION OF EQUITY AND THE
IMPOSITION OF A PRIOR RESTRAINT. 

THE SAME WOULD BE TRUE UNDER THOSE SECTIONS OF THE CRIMINAL CODE
CASTING A WIDER NET TO PROTECT THE NATIONAL DEFENSE.  SECTION 793(3)
/8/  MAKES IT A CRIMINAL ACT FOR ANY UNAUTHORIZED POSSESSOR OF A
DOCUMENT "RELATING TO THE NATIONAL DEFENSE" EITHER (1) WILLFULLY TO
COMMUNICATE OR CAUSE TO BE COMMUNICATED THAT DOCUMENT TO ANY PERSON NOT
ENTITLED TO RECEIVE IT OR (2) WILLFULLY TO RETAIN THE DOCUMENT AND FAIL
TO DELIVER IT TO AN OFFICER OF THE UNITED STATES ENTITLED TO RECEIVE
IT.  THE SUBSECTION WAS ADDED IN 1950 BECAUSE PRE-EXISTING LAW PROVIDED
NO PENALTY FOR THE UNAUTHORIZED POSSESSOR UNLESS DEMAND FOR THE
DOCUMENTS WAS MADE.  /9/  "THE DANGERS SURROUNDING THE UNAUTHORIZED
POSSESSION OF SUCH ITEMS ARE SELF-EVIDENT, AND IT IS DEEMED ADVISABLE
TO REQUIRE THEIR SURRENDER IN SUCH A CASE, REGARDLESS OF DEMAND,
ESPECIALLY SINCE THEIR UNAUTHORIZED POSSESSION MAY BE UNKNOWN TO THE
AUTHORITIES WHO WOULD OTHERWISE MAKE THE DEMAND."  S. REP. NO. 2369,
PT. 1, 81ST CONG., 2D SESS., 9 (1950).  OF COURSE, IN THE CASES BEFORE
US, THE UNPUBLISHED DOCUMENTS HAVE BEEN DEMANDED BY THE UNITED STATES
AND THEIR IMPORT HAS BEEN MADE KNOWN AT LEAST TO COUNSEL FOR THE
NEWSPAPERS INVOLVED.  IN GORIN V. UNITED STATES, 312 U.S. 19, 28
(1941), THE WORDS "NATIONAL DEFENSE" AS USED IN A PREDECESSOR OF SEC.
793 WERE HELD BY A UNANIMOUS COURT TO HAVE "A WELL UNDERSTOOD
CONNOTATION"-- A "GENERIC CONCEPT OF BROAD CONNOTATIONS, REFERRING TO
THE MILITARY AND NAVAL ESTABLISHMENTS AND THE RELATED ACTIVITIES OF
NATIONAL PREPAREDNESS"-- AND TO BE "SUFFICIENTLY DEFINITE TO APPRISE
THE PUBLIC OF PROHIBITED ACTIVITIES: AND TO BE CONSONANT WITH DUE
PROCESS.  312 U.S.,AT 28.  ALSO, AS CONSTRUED BY THE COURT IN GORIN,
INFORMATION "CONNECTED WITH THE NATIONAL DEFENSE" IS OBVIOUSLY NOT
LIMITED TO THAT THREATENING "GRAVE AND IRREPARABLE" INJURY TO THE
UNITED STATES.  /10/     IT IS THUS CLEAR THAT CONGRESS HAS ADDRESSED
ITSELF TO THE PROBLEMS OF PROTECTING THE SECURITY OF THE COUNTRY AND
THE NATIONAL DEFENSE FROM UNAUTHORIZED DISCLOSURE OF POTENTIALLY
DAMAGING INFORMATION.  CF. YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343
U.S. 579, 585-586 (1952); SEE ALSO ID., AT 593-628 (FRANKFURTER, J.,
CONCURRING).  IT HAS NOT, HOWEVER, AUTHORIZED THE INJUNCTIVE REMEDY
AGAINST THREATENED PUBLICATION.  IT HAS APPARENTLY BEEN SATISFIED TO
RELY ON CRIMINAL SANCTIONS AND THEIR DETERRENT EFFECT ON THE
RESPONSIBLE AS WELL AS THE IRRESPONSIBLE PRESS.  I AM NOT, OF COURSE,
SAYING THAT EITHER OF THESE NEWSPAPERS HAS YET COMMITTED A CRIME OR
THAT EITHER WOULD COMMIT A CRIME IF IT PUBLISHED ALL THE MATERIAL NOW
IN ITS POSSESSION.  THAT MATTER MUST AWAIT RESOLUTION IN THE CONTEXT OF
A CRIMINAL PROCEEDING IF ONE IS INSTITUTED BY THE UNITED STATES.  IN
THAT EVENT, THE ISSUE OF GUILT OR INNOCENCE WOULD BE DETERMINED BY
PROCEDURES AND STANDARDS QUITE DIFFERENT FROM THOSE THAT HAVE PURPORTED
TO GOVERN THESE INJUNCTIVE PROCEEDINGS. 

/1/  THE CONGRESS HAS AUTHORIZED A STRAIN OF PRIOR RESTRAINTS
AGAINST PRIVATE PARTIES IN CERTAIN INSTANCES.  THE NATIONAL LABOR
RELATIONS BOARD ROUTINELY ISSUES CEASE-AND-DESIST ORDERS AGAINST
EMPLOYERS WHO IT FINDS HAVE THREATENED OR COERCED EMPLOYEES IN THE
EXERCISE OF PROTECTED RIGHTS.  SEE 29 U.S.C. 160(C).  SIMILARLY, THE
FEDERAL TRADE COMMISSION IS EMPOWERED TO IMPOSE CEASE-AND-DESIST ORDERS
AGAINST UNFAIR METHODS OF COMPETITION.  15 U.S.C. 45(B).  SUCH ORDERS
CAN, AND QUITE OFTEN DO, RESTRICT WHAT MAY BE SPOKEN OR WRITTEN UNDER
CERTAIN CIRCUMSTANCES.  SEE, E.G., NLRB V. GISSEL PACKING CO., 395 U.S.
575, 616-620 (1969).  ARTICLE I, SEC. 8, OF THE CONSTITUTION AUTHORIZES
CONGRESS TO SECURE THE "EXCLUSIVE RIGHT" OF AUTHORS TO THEIR WRITINGS,
AND NO ONE DENIES THAT A NEWSPAPER CAN PROPERLY BE ENJOINED FROM
PUBLISHING THE COPYRIGHTED WORKS OF ANOTHER.  SEE WESTERMANN CO. V.
DISPATCH CO., 249 U.S. 100 (1919).  NEWSPAPERS DO THEMSELVES RELY FROM
TIME TO TIME ON THE COPYRIGHT AS A MEANS OF PROTECTING THEIR ACCOUNTS
OF IMPORTANT EVENTS.  HOWEVER, THOSE ENJOINED UNDER THE STATUTES
RELATING TO THE NATIONAL LABOR RELATIONS BOARD AND THE FEDERAL TRADE
COMMISSION ARE PRIVATE PARTIES, NOT THE PRESS; AND WHEN THE PRESS IS
ENJOINED UNDER THE COPYRIGHT LAWS THE COMPLAINANT IS A PRIVATE
COPYRIGHT HOLDER ENFORCING A PRIVATE RIGHT.  THESE SITUATIONS ARE QUITE
DISTINCT FROM THE GOVERNMENT'S REQUEST FOR AN INJUNCTION AGAINST
PUBLISHING INFORMATION ABOUT THE AFFAIRS OF GOVERNMENT, A REQUEST
ADMITTEDLY NOT BASED ON ANY STATUTE. 

/2/  THE "GRAVE AND IRREPARABLE DANGER" STANDARD IS THAT ASSERTED BY
THE GOVERNMENT IN THIS COURT.  IN REMANDING TO JUDGE GURFEIN FOR
FURTHER HEARINGS IN THE TIMES LITIGATION, FIVE MEMBERS OF THE COURT OF
APPEALS FOR THE SECOND CIRCUIT DIRECTED HIM TO DETERMINE WHETHER
DISCLOSURE OF CERTAIN ITEMS SPECIFIED WITH PARTICULARITY BY THE
GOVERNMENT WOULD "POSE SUCH GRAVE AND IMMEDIATE DANGER TO THE SECURITY
OF THE UNITED STATES AS TO WARRANT THEIR PUBLICATION BEING ENJOINED." 

/3/  "WHOEVER, IN TIME OF WAR, IN VIOLATION OF REASONABLE
REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT, WHICH HE IS HEREBY
AUTHORIZED TO MAKE AND PROMULGATE, SHALL PUBLISH ANY INFORMATION WITH
RESPECT TO THE MOVEMENT, NUMBERS, DESCRIPTION, CONDITION, OR
DISPOSITION OF ANY OF THE ARMED FORCES, SHIPS, AIRCRAFT, OR WAR
MATERIALS OF THE UNITED STATES, OR WITH RESPECT TO THE PLANS OR CONDUCT
OF ANY NAVAL OR MILITARY OPERATIONS, OR WITH RESPECT TO ANY WORKS OR
MEASURES UNDERTAKEN FOR OR CONNECTED WITH, OR INTENDED FOR THE
FORTIFICATION OR DEFENSE OF ANY PLACE, OR ANY OTHER INFORMATION
RELATING TO THE PUBLIC DEFENSE CALCULATED TO BE USEFUL TO THE ENEMY,
SHALL BE PUNISHED BY A FINE . . . OR BY IMPRISONMENT . . . "  55
CONG.REC.  2100. 

/4/  SENATOR ASHURST ALSO URGED THAT "'FREEDOM OF THE PRESS' MEANS
FREEDOM FROM THE RESTRAINTS OF A CENSOR, MEANS THAT ABSOLUTE LIBERTY
AND RIGHT TO PUBLISH WHATEVER YOU WISH; BUT YOU TAKE YOUR CHANCES OF
PUNISHMENT IN THE COURTS OF YOUR COUNTRY FOR THE VIOLATION OF THE LAWS
OF LIBEL, SLANDER, AND TREASON."  55 CONG.REC.  2005. 

/5/  TITLE 18 U.S.C. 797 PROVIDES: 

"ON AND AFTER THIRTY DAYS FROM THE DATE UPON WHICH THE PRESIDENT
DEFINES ANY VITAL MILITARY OR NAVAL INSTALLATION OR EQUIPMENT AS BEING
WITHIN THE CATEGORY CONTEMPLATED UNDER SECTION 795 OF THIS TITLE,
WHOEVER REPRODUCES, PUBLISHES, SELLS, OR GIVES AWAY ANY PHOTOGRAPH,
SKETCH, PICTURE, DRAWING, MAP, OR GRAPHICAL REPRESENTATION OF THE VITAL
MILITARY OR NAVAL INSTALLATIONS OR EQUIPMENT SO DEFINED, WITHOUT FIRST
OBTAINING PERMISSION OF THE COMMANDING OFFICER OF THE MILITARY OR NAVAL
POST, CAMP, OR STATION CONCERNED, OR HIGHER AUTHORITY, UNLESS SUCH
PHOTOGRAPH, SKETCH, PICTURE, DRAWING, MAP, OR GRAPHICAL REPRESENTATION
HAS CLEARLY INDICATED THEREON THAT IT HAS BEEN CENSORED BY THE PROPER
MILITARY OR NAVAL AUTHORITY, SHALL BE FINED NOT MORE THAN $1,000 OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 

/6/  IN RELEVANT PART 18 U.S.C. 798 PROVIDES: 

"(A) WHOEVER KNOWINGLY AND WILLFULLY COMMUNICATES, FURNISHED
TRANSMITS, OR OTHERWISE MAKES AVAILABLE TO AN UNAUTHORIZED PERSON, OR
PUBLISHES, OR USES IN ANY MANNER PREJUDICIAL TO THE SAFETY OR INTEREST
OF THE UNITED STATES OR FOR THE BENEFIT OF ANY FOREIGN GOVERNMENT TO
THE DETRIMENT OF THE UNITED STATES ANY CLASSIFIED INFORMATION-- 

(1) CONCERNING THE NATURE, PREPARATION, OR USE OF ANY CODE, CIPHER,
OR CRYPTOGRAPHIC SYSTEM OF THE UNITED STATES OR ANY FOREIGN GOVERNMENT;
OR 

"(2) CONCERNING THE DESIGN, CONSTRUCTION, USE, MAINTENANCE, OR
REPAIR OF ANY DEVICE, APPARATUS, OR APPLIANCE USED OR PREPARED OR
PLANNED FOR USE BY THE UNITED STATES OR ANY FOREIGN GOVERNMENT FOR
CRYPTOGRAPHIC OR COMMUNICATION INTELLIGENCE PURPOSES; OR 

"(3) CONCERNING THE COMMUNICATION INTELLIGENCE ACTIVITIES OF THE
UNITED STATES OR ANY FOREIGN GOVERNMENT; OR 

"(4) OBTAINED BY THE PROCESS OF COMMUNICATION INTELLIGENCE FROM THE
COMMUNICATIONS OF ANY FOREIGN GOVERNMENT, KNOWING THE SAME TO HAVE BEEN
OBTAINED BY SUCH PROCESSES-- 

"SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN
TEN YEARS, OR BOTH." 

/7/  THE PURPORT OF 18 U.S.C. 798 IS CLEAR.  BOTH THE HOUSE AND
SENATE REPORTS ON THE BILL, IN IDENTICAL TERMS, SPEAK OF FURTHERING THE
SECURITY OF THE UNITED STATES BY PREVENTING DISCLOSURE OF INFORMATION
CONCERNING THE CRYPTOGRAPHIC SYSTEMS AND THE COMMUNICATION INTELLIGENCE
SYSTEMS OF THE UNITED STATES, AND EXPLAINING THAT "(THIS BILL MAKES IT
A CRIME TO REVEAL THE METHODS, TECHNIQUES, AND MATERIEL USED IN THE
TRANSMISSION BY THIS NATION OF ENCIPHERED OR CODED MESSAGES . . .
FURTHER, IT MAKES IT A CRIME TO REVEAL METHODS USED BY THIS NATION IN
BREAKING THE SECRET CODES OF A FOREIGN NATION.  IT ALSO PROHIBITS UNDER
CERTAIN PENALTIES THE DIVULGING OF ANY INFORMATION WHICH MAY HAVE COME
INTO THIS GOVERNMENT'S HANDS AS A RESULT OF SUCH A CODE-BREAKING." 
H.R. REP. NO. 1895, 81ST CONG., 2D.  SESS., 1 (1950).  THE NARROW REACH
OF THE STATUTE WAS EXPLAINED AS COVERING "ONLY A SMALL CATEGORY OF
CLASSIFIED MATTER, A CATEGORY WHICH IS BOTH VITAL AND VULNERABLE TO AN
ALMOST UNIQUE DEGREE."  ID., AT 2.  EXISTING LEGISLATION WAS DEEMED
INADEQUATE. 

"AT PRESENT TWO OTHER ACTS PROTECT THIS INFORMATION, BUT ONLY IN A
LIMITED WAY.  THESE ARE THE ESPIONAGE ACT OF 1917 (40 STAT. 217) AND
THE ACT OF JUNE 10, 1933 (48 STAT. 122).  UNDER THE FIRST, UNAUTHORIZED
REVELATION OF INFORMATION OF THIS KIND CAN BE PENALIZED ONLY IF IT CAN
BE PROVED THAT THE PERSON MAKING THE REVELATION DID SO WITH AN INTENT
TO INJURE THE UNITED STATES.  UNDER THE SECOND, ONLY DIPLOMATIC CODES
AND MESSAGES TRANSMITTED IN DIPLOMATIC CODES ARE PROTECTED.  THE
PRESENT BILL IS DESIGNED TO PROTECT AGAINST KNOWING AND WILLFUL
PUBLICATION OR ANY OTHER REVELATION OF ALL IMPORTANT INFORMATION
AFFECTING THE UNITED STATES COMMUNICATION INTELLIGENCE OPERATIONS AND
ALL DIRECT INFORMATION ABOUT ALL UNITED STATES CODES AND CIPHERS." 
IBID. 

NONEMPLOYEES OF THE GOVERNMENT AND TO EASE THE GOVERNMENT'S BURDEN IN
OBTAINING CONVICTIONS.  SEE H.R. REP. NO. 1895, SUPRA, AT 2-5.  THE
IDENTICAL SENATE REPORT, NOT CITED IN PARALLEL IN THE TEXT OF THIS
FOOTNOTE, IS S. REP. NO. 111, 81ST CONG., 1ST SESS. (1949). 

/8/  SECTION 793(3) OF 18 U.S.C. PROVIDES THAT: 

"(E) WHOEVER HAVING UNAUTHORIZED POSSESSION OF, ACCESS TO, OR
CONTROL OVER ANY DOCUMENT, WRITING, CODE BOOK, SIGNAL BOOK, SKETCH,
PHOTOGRAPH, PHOTOGRAPHIC NEGATIVE, BLUEPRINT, PLAN, MAP, MODEL,
INSTRUMENT, APPLIANCE, OR NOTE RELATING TO THE NATIONAL DEFENSE, OR
INFORMATION RELATING TO THE NATIONAL DEFENSE WHICH INFORMATION THE
POSSESSOR HAS REASON TO BELIEVE COULD BE USED TO THE INJURY OF THE
UNITED STATES OR TO THE ADVANTAGE OF ANY FOREIGN NATION, WILLFULLY
COMMUNICATES, DELIVERS, TRANSMITS OR CAUSES TO BE COMMUNICATED,
DELIVERED, OR TRANSMITTED, OR ATTEMPTS TO COMMUNICATE, DELIVER,
TRANSMIT OR CAUSE TO BE COMMUNICATED, DELIVERED OR TRANSMITTED THE SAME
TO ANY PERSON NOT ENTITLED TO RECEIVE IT, OR WILLFULLY RETAINS THE SAME
AND FAILS TO DELIVER IT TO THE OFFICER OR EMPLOYEE OF THE UNITED STATES
ENTITLED TO RECEIVE IT;" IS GUILTY OF AN OFFENSE PUNISHABLE BY 10 YEARS
IN PRISON, A $10,000 FINE, OR BOTH.  IT SHOULD ALSO BE NOTED THAT 18
U.S.C. 793(G), ADDED IN 1950 (SEE 64 STAT. 1004; S. REP. NO. 2369, PT.
1, 81ST CONG., 2D SESS., 9 (1950)), PROVIDES THAT "(IF TWO OR MORE
PERSONS CONSPIRE TO VIOLATE ANY OF THE FOREGOING PROVISIONS OF THIS
OBJECT OF THE CONSPIRACY, EACH OF THE PARTIES TO SUCH CONSPIRACY SHALL
BE SUBJECT TO THE PUNISHMENT PROVIDED FOR THE OFFENSE WHICH IS THE
OBJECT OF SUCH CONSPIRACY." 

/9/  THE AMENDMENT OF SEC. 793 THAT ADDED SUBSECTION (E) WAS PART OF
THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, WHICH WAS IN TURN TITLE
I OF THE INTERNAL SECURITY ACT OF 1950.  SEE 64 STAT. 987.  THE REPORT
OF THE SENATE JUDICIARY COMMITTEE BEST EXPLAINS THE PURPOSES OF THE
AMENDMENT: 

"SECTION 18 OF THE BILL AMENDS SECTION 793 OF TITLE 18 OF THE U.S.C.
(ESPIONAGE STATUTE).  THE SEVERAL PARAGRAPHS OF SECTION 793 OF TITLE 18
ARE DESIGNATED AS SUBSECTIONS (A) THROUGH (G) FOR PURPOSES OF
CONVENIENT REFERENCE.  THE SIGNIFICANT CHANGES WHICH WOULD BE MADE IN

"(1) AMENDS THE FOURTH PARAGRAPH OF SECTION 793 OF TITLE 18
(SUBSEC.  (D)), TO COVER THE UNLAWFUL DISSEMINATION OF 'INFORMATION
RELATING TO THE NATIONAL DEFENSE WHICH INFORMATION THE POSSESSOR HAS
REASON TO BELIEVE COULD BE USED TO THE INJURY OF THE UNITED STATES OR
TO THE ADVANTAGE OF ANY FOREIGN NATION.'  THE PHRASE 'WHICH INFORMATION
THE POSSESSOR HAS REASON TO BELIEVE COULD BE USED TO THE INJURY OF THE
UNITED STATES OR TO THE ADVANTAGE OF ANY FOREIGN NATION' WOULD MODIFY
ONLY 'INFORMATION RELATING TO THE NATIONAL DEFENSE' AND NOT THE OTHER
ITEMS ENUMERATED IN THE SUBSECTION.  THE FOURTH PARAGRAPH OF SECTION
793 IS ALSO AMENDED TO PROVIDE THAT ONLY THOSE WITH LAWFUL POSSESSION
OF THE ITEMS RELATING TO NATIONAL DEFENSE ENUMERATED THEREIN MAY RETAIN
THEM SUBJECT TO DEMAND THEREFOR.  THOSE WHO HAVE UNAUTHORIZED
POSSESSION OF SUCH ITEMS ARE TREATED IN A SEPARATE SUBSECTION. 

"(2) AMENDS SECTION 793, TITLE 18 (SUBSEC.  (E)), TO PROVIDE THAT
UNAUTHORIZED POSSESSORS OF ITEMS ENUMERATED IN PARAGRAPH 4 OF SECTION
793 MUST SURRENDER POSSESSION THEREOF TO THE PROPER AUTHORITIES WITHOUT
DEMAND.  EXISTING LAW PROVIDES NO PENALTY FOR THE UNAUTHORIZED
POSSESSION OF SUCH ITEMS UNLESS A DEMAND FOR THEM IS MADE BY THE PERSON
ENTITLED TO RECEIVE THEM.  THE DANGERS SURROUNDING THE UNAUTHORIZED
POSSESSION OF SUCH ITEMS ARE SELF-EVIDENT, AND IT IS DEEMED ADVISABLE
TO REQUIRE THEIR SURRENDER IN SUCH A CASE, REGARDLESS OF DEMAND,
ESPECIALLY SINCE THEIR UNAUTHORIZED POSSESSION MAY BE UNKNOWN TO THE
AUTHORITIES WHO WOULD OTHERWISE MAKE THE DEMAND.  THE ONLY DIFFERENCE
BETWEEN SUBSECTION (D) AND SUBSECTION (E) OF SECTION 793 IS THAT A
DEMAND BY THE PERSON ENTITLED TO RECEIVE THE ITEMS WOULD BE A NECESSARY
ELEMENT OF AN OFFENSE UNDER SUBSECTION (D) WHERE THE POSSESSION IS
LAWFUL, WHEREAS SUCH A DEMAND WOULD NOT BE A NECESSARY ELEMENT OF AN
OFFENSE UNDER SUBSECTION (E) WHERE THE POSSESSION IS UNAUTHORIZED."  S.
REP. NO. 2369, PT. 1, 81ST CONG., 2D SESS., 8-9 (1950). 

IT SEEMS CLEAR FROM THE FOREGOING, CONTRARY TO THE INTIMATIONS OF
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN THIS CASE,
THAT IN PROSECUTING FOR COMMUNICATING OR WITHHOLDING A "DOCUMENT" AS
CONTRASTED WITH SIMILAR ACTION WITH RESPECT TO "INFORMATION" THE
GOVERNMENT NEED NOT PROVE AN INTENT TO INJURE THE UNITED STATES OR TO
BENEFIT A FOREIGN NATION BUT ONLY WILLFUL AND KNOWING CONDUCT.  THE
DISTRICT COURT RELIED ON GORIN V. UNITED STATES, 312 U.S. 19 (1941). 
BUT THAT CASE AROSE UNDER OTHER PARTS OF THE PREDECESSOR TO SEC. 793,
SEE 312 U.S.,AT 21-22-- PARTS THAT IMPOSED DIFFERENT INTENT STANDARDS
NOT REPEATED IN SEC. 793(D) OR SEC. 793(E).  CF. 18 U.S.C. 793(A), (B),
AND (C).  ALSO, FROM THE FACE OF SUBSECTION (E) AND FROM THE CONTEXT OF
THE ACT OF WHICH IT WAS A PART, IT SEEMS UNDENIABLE THAT A NEWSPAPER,
AS WELL AS OTHERS UNCONNECTED WITH THE GOVERNMENT, ARE VULNERABLE TO
PROSECUTION UNDER SEC. 793(E) IF THEY COMMUNICATE OR WITHHOLD THE
MATERIALS COVERED BY THAT SECTION.  THE DISTRICT COURT RULED THAT
"COMMUNICATION" DID NOT REACH PUBLICATION BY A NEWSPAPER OF DOCUMENTS
RELATING TO THE NATIONAL DEFENSE.  I INTIMATE NO VIEWS ON THE
CORRECTNESS OF THAT CONCLUSION.  BUT NEITHER COMMUNICATION NOR
PUBLICATION IS NECESSARY TO VIOLATE THE SUBSECTION. 

/10/  ALSO RELEVANT IS 18 U.S.C. 794.  SUBSECTION (B) THEREOF
FORBIDS IN TIME OF WAR THE COLLECTION OR PUBLICATION, WITH INTENT THAT
IT SHALL BE COMMUNICATED TO THE ENEMY, OF ANY INFORMATION WITH RESPECT
TO THE MOVEMENTS OF MILITARY FORCES, "OR WITH RESPECT TO THE PLANS OR
CONDUCT . . . OF ANY NAVAL OR MILITARY OPERATIONS . . . OR ANY OTHER
INFORMATION RELATING TO THE PUBLIC DEFENSE, WHICH MIGHT BE USEFUL TO
THE ENEMY . . . "     MR. JUSTICE MARSHALL, CONCURRING. 

THE GOVERNMENT CONTENDS THAT THE ONLY ISSUE IN THESE CASES IS
WHETHER IN A SUIT BY THE UNITED STATES, "THE FIRST AMENDMENT BARS A
COURT FROM PROHIBITING A NEWSPAPER FROM PUBLISHING MATERIAL WHOSE
DISCLOSURE WOULD POSE A 'GRAVE AND IMMEDIATE DANGER TO THE SECURITY OF
THE UNITED STATES.'"  BRIEF FOR THE UNITED STATES 7.  WITH ALL DUE
RESPECT, I BELIEVE THE ULTIMATE ISSUE IN THESE CASES IS EVEN MORE BASIC
THAN THE ONE POSED BY THE SOLICITOR GENERAL.  THE ISSUE IS WHETHER THIS
COURT OR THE CONGRESS HAS THE POWER TO MAKE LAW. 

IN THESE CASES THERE IS NO PROBLEM CONCERNING THE PRESIDENT'S POWER
TO CLASSIFY INFORMATION AS "SECRET" OR "TOP SECRET."  CONGRESS HAS
SPECIFICALLY RECOGNIZED PRESIDENTIAL AUTHORITY WHICH HAS BEEN FORMALLY
EXERCISED IN EXEC. ORDER 10501 (1953), TO CLASSIFY DOCUMENTS AND
INFORMATION.  SEE E.G., 18 U.S.C. 798; 50 U.S.C. 783.  /1/  NOR IS
THERE ANY ISSUE HERE REGARDING THE PRESIDENT'S POWER AS CHIEF EXECUTIVE
AND COMMANDER IN CHIEF TO PROTECT NATIONAL SECURITY BY DISCIPLINING
EMPLOYEES WHO DISCLOSE INFORMATION AND BY TAKING PRECAUTIONS TO PREVENT
LEAKS. 

THE PROBLEM HERE IS WHETHER IN THESE PARTICULAR CASES THE EXECUTIVE
BRANCH HAS AUTHORITY TO INVOKE THE EQUITY JURISDICTION OF THE COURTS TO
PROTECT WHAT IT BELIEVES TO BE THE NATIONAL INTEREST.  SEE IN RE DEBS,
158 U.S. 564, 584 (1895).  THE GOVERNMENT ARGUES THAT IN ADDITION TO
THE INHERENT POWER OF ANY GOVERNMENT TO PROTECT ITSELF, THE PRESIDENT'S
POWER TO CONDUCT FOREIGN AFFAIRS AND HIS POSITION AS COMMANDER IN CHIEF
GIVE HIM AUTHORITY TO IMPOSE CENSORSHIP ON THE PRESS TO PROTECT HIS
ABILITY TO DEAL EFFECTIVELY WITH FOREIGN NATIONS AND TO CONDUCT THE
MILITARY AFFAIRS OF THE COUNTRY.  OF COURSE, IT IS BEYOND CAVIL THAT
THE PRESIDENT HAS BROAD POWERS BY VIRTUE OF HIS PRIMARY RESPONSIBILITY
FOR THE CONDUCT OF OUR FOREIGN AFFAIRS AND HIS POSITION AS COMMANDER IN
CHIEF.  CHICAGO & SOUTHERN AIR LINES V. WATERMAN S.S. CORP., 333 U.S.
103 (1948); HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 93 (1943);
UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304 (1936).  /2/  AND
IN SOME SITUATIONS IT MAY BE THAT UNDER WHATEVER INHERENT POWERS THE
GOVERNMENT MAY HAVE, AS WELL AS THE IMPLICIT AUTHORITY DERIVED FROM THE
PRESIDENT'S MANDATE TO CONDUCT FOREIGN AFFAIRS AND TO ACT AS COMMANDER
IN CHIEF, THERE IS A BASIS FOR THE INVOCATION OF THE EQUITY
JURISDICTION OF THIS COURT AS AN AID TO PREVENT THE PUBLICATION OF
MATERIAL DAMAGING TO "NATIONAL SECURITY," HOWEVER THAT TERMS MAY BE
DEFINED. 

IT WOULD, HOWEVER, BE UTTERLY INCONSISTENT WITH THE CONCEPT OF
SEPARATION OF POWERS FOR THIS COURT TO USE ITS POWER OF CONTEMPT TO
PREVENT BEHAVIOR THAT CONGRESS HAS SPECIFICALLY DECLINED TO PROHIBIT. 
THERE WOULD BE A SIMILAR DAMAGE TO THE BASIC CONCEPT OF THESE CO-EQUAL
BRANCHES OF GOVERNMENT IF WHEN THE EXECUTIVE BRANCH HAS ADEQUATE
AUTHORITY GRANTED BY CONGRESS TO PROTECT "NATIONAL SECURITY" IT CAN
CHOOSE INSTEAD TO INVOKE THE CONTEMPT POWER OF A COURT TO ENJOIN THE
THREATENED CONDUCT.  THE CONSTITUTION PROVIDES THAT CONGRESS SHALL MAKE
LAWS, THE PRESIDENT EXECUTE LAWS, AND COURTS INTERPRET LAWS. 
YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579 (1952).  IT DID NOT
PROVIDE FOR GOVERNMENT BY INJUNCTION IN WHICH THE COURTS AND THE
EXECUTIVE BRANCH CAN "MAKE LAW" WITHOUT REGARD TO THE ACTION OF
CONGRESS.  IT MAY BE MORE CONVENIENT FOR THE EXECUTIVE BRANCH IF IT
NEED ONLY CONVINCE A JUDGE TO PROHIBIT CONDUCT RATHER THAN ASK THE
CONGRESS TO PASS A LAW, AND IT MAY BE MORE CONVENIENT TO ENFORCE A
CONTEMPT ORDER THAN TO SEEK A CRIMINAL CONVICTION IN A JURY TRIAL. 
MOREOVER, IT MAY BE CONSIDERED POLITICALLY WISE TO GET A COURT TO SHARE
THE RESPONSIBILITY FOR ARRESTING THOSE WHO THE EXECUTIVE BRANCH HAS
PROBABLE CAUSE TO BELIEVE ARE VIOLATING THE LAW.  BUT CONVENIENCE AND
POLITICAL CONSIDERATIONS OF THE MOMENT DO NOT JUSTIFY A BASIC DEPARTURE
FROM THE PRINCIPLES OF OUR SYSTEM OF GOVERNMENT. 

IN THESE CASES WE ARE NOT FACED WITH A SITUATION WHERE CONGRESS HAS
FAILED TO PROVIDE THE EXECUTIVE WITH BROAD POWER TO PROTECT THE NATION
FROM DISCLOSURE OF DAMAGING STATE SECRETS.  CONGRESS HAS ON SEVERAL
OCCASIONS GIVEN EXTENSIVE CONSIDERATION TO THE PROBLEM OF PROTECTING
THE MILITARY AND STRATEGIC SECRETS OF THE UNITED STATES.  THIS
CONSIDERATION HAS RESULTED IN THE ENACTMENT OF STATUTES MAKING IT A
CRIME TO RECEIVE, DISCLOSE, COMMUNICATE, WITHHOLD, AND PUBLISH CERTAIN
DOCUMENTS, PHOTOGRAPHS, INSTRUMENTS, APPLIANCES, AND INFORMATION.  THE
BULK OF THESE STATUTES IS FOUND IN CHAPTER 37 OF U.S.C., TITLE 18,
ENTITLED ESPIONAGE AND CENSORSHIP.  /3/  IN THAT CHAPTER, CONGRESS HAS
PROVIDED PENALTIES RANGING FROM $10,000 FINE TO DEATH FOR VIOLATING THE
VARIOUS STATUTES. 

THUS IT WOULD SEEM THAT IN ORDER FOR THIS COURT TO ISSUE AN
INJUNCTION IT WOULD REQUIRE A SHOWING THAT SUCH AN INJUNCTION WOULD
ENHANCE THE ALREADY EXISTING POWER OF THE GOVERNMENT TO ACT.  SEE
BENNETT V. LAMAN, 277 N.Y. 368, 14 N.E.2D 439 (1938).  IT IS A
TRADITIONAL AXION OF EQUITY THAT A COURT OF EQUITY WILL NOT DO A
USELESS THING JUST AS IT IS A TRADITIONAL AXION THAT EQUITY WILL NOT
ENJOIN THE COMMISSION OF A CRIME.  SEE Z. CHAFEE & E. RE., EQUITY 935
954 (5TH ED. 1967); 1 H.JOYCE, INJUNCTIONS 58-60A (1909).  HERE THERE
HAS BEEN NO ATTEMPT TO MAKE SUCH A SHOWING.  THE SOLICITOR GENERAL DOES
NOT EVEN MENTION IN HIS BRIEF WHETHER THE GOVERNMENT CONSIDERS THAT
THERE IS PROBABLE CAUSE TO BELIEVE A CRIME HAS BEEN COMMITTED OR
WHETHER THERE IS A CONSPIRACY TO COMMIT FUTURE CRIMES. 

IF THE GOVERNMENT HAD ATTEMPTED TO SHOW THAT THERE WAS NO EFFECTIVE
REMEDY UNDER TRADITIONAL CRIMINAL LAW, IT WOULD HAVE HAD TO SHOW THAT
THERE IS NO ARGUABLY APPLICABLE STATUTE.  OF COURSE, AT THIS STAGE THIS
COURT COULD NOT AND CANNOT DETERMINE WHETHER THERE HAS BEEN A VIOLATION
OF A PARTICULAR STATUTE OR DECIDE THE CONSTITUTIONALITY OF ANY
STATUTE.  WHETHER A GOOD-FAITH PROSECUTION COULD HAVE BEEN INSTITUTED
UNDER ANY STATUTE COULD, HOWEVER, BE DETERMINED. 

AT LEAST ONE OF THE MANY STATUTES IN THIS AREA SEEMS RELEVANT TO
THESE CASES.  CONGRESS HAS PROVIDED IN 18 U.S.C. 793(E) THAT WHOEVER
"HAVING UNAUTHORIZED POSSESSION OF, ACCESS TO, OR CONTROL OVER ANY
DOCUMENT, WRITING, CODE BOOK, SIGNAL BOOK . . . OR NOTE RELATING TO THE
NATIONAL DEFENSE, OR INFORMATION RELATING TO THE NATIONAL DEFENSE WHICH
INFORMATION THE POSSESSOR HAS REASON TO BELIEVE COULD BE USED TO THE
INJURY OF THE UNITED STATES OR TO THE ADVANTAGE OF ANY FOREIGN NATION,
WILLFULLY COMMUNICATES, DELIVERS, TRANSMITS . . . THE SAME TO ANY
PERSON NOT ENTITLED TO RECEIVE IT, OR WILLFULLY RETAINS THE SAME AND
FAILS TO DELIVER IT TO THE OFFICER OR EMPLOYEE OF THE UNITED STATES
ENTITLED TO RECEIVE IT. . . (SHALL BE FINED NOT MORE THAN $10,000 OR
IMPRISONED NOT MORE THAN TEN YEARS, OR BOTH."  CONGRESS HAS ALSO MADE
IT A CRIME TO CONSPIRE TO COMMIT ANY OF THE OFFENSES LISTED IN 18
U.S.C. 793(E). 

IT IS TRUE THAT JUDGE GURFEIN FOUND THAT CONGRESS HAD NOT MADE IT A
CRIME TO CONSPIRE TO COMMIT ANY OF THE OFFENSES LISTED IN 18 U.S.C.
793(E).  HE FOUND THAT THE WORDS "COMMUNICATES, DELIVERS, TRANSMITS . .
. " DID NOT REFER TO PUBLICATION OF NEWSPAPER STORIES.  AND THAT VIEW
HAS SOME SUPPORT IN THE LEGISLATIVE HISTORY AND CONFORMS WITH THE PAST
PRACTICE OF USING THE STATUTE ONLY TO PROSECUTE THOSE CHARGED WITH
ORDINARY ESPIONAGE.  BUT SEE 103 CONG.REC.  10449 (REMARKS OF SEN.
HUMPHREY).  JUDGE GURFEIN'S VIEW OF THE STATUTE IS NOT, HOWEVER, THE
ONLY PLAUSIBLE CONSTRUCTION THAT COULD BE GIVEN.  SEE MY BORTHER
WHITE'S CONCURRING OPINION. 

EVEN IF IT IS DETERMINED THAT THE GOVERNMENT COULD NOT IN GOOD FAITH
BRING CRIMINAL PROSECUTIONS AGINST THE NEW YORK TIMES AND THE
WASHINGTON POST, IT IS CLEAR THAT CONGRESS HAS SPECIFICALLY REJECTED
PASSING LEGISLATION THAT WOULD HAVE CLEARLY GIVEN THE PRESIDENT THE
POWER HE SEEKS HERE AND MADE THE CURRENT ACTIVITY OF THE NEWSPAPERS
UNLAWFUL.  WHEN CONGRESS SPECIFICALLY DECLINES TO MAKE CONDUCT UNLAWFUL
IT IS NOT FOR THIS COURT TO REDECIDE THOSE ISSUES-- TO OVERRULE
CONGRESS.  SEE YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579
(1952). 

ON AT LEAST TWO OCCASIONS CONGRESS HAS REFUSED TO ENACT LEGISLATION
THAT WOULD HAVE MADE THE CONDUCT ENGAGED IN HERE UNLAWFUL AND GIVEN THE
PRESIDENT THE POWER THAT HE SEEKS IN THIS CASE.  IN 1917 DURING THE
DEBATE OVER THE ORIGINAL ESPIONAGE ACT, STILL THE BASIC PROVISIONS OF
SEC. 793, CONGRESS REJECTED A PROPOSAL TO GIVE THE PRESIDENT IN TIME OF
WAR OR THREAT OF WAR AUTHORITY TO DIRECTLY PROHIBIT BY PROCLAMATION THE
PUBLICATION OF INFORMATION RELATING TO NATIONAL DEFENSE THAT MIGHT BE
USEFUL TO THE ENEMY.  THE PROPOSAL PROVIDED THAT: 

     "DURING ANY NATIONAL EMERGENCY RESULTING FROM A WAR TO WHICH

  THE UNITED STATES IS A PARTY, OR FROM THREAT OF SUCH A WAR, THE

  PRESIDENT MAY, BY PROCLAMATION, DECLARE THE EXISTENCE OF SUCH

  EMERGENCY AND, BY PROCLAMATION, PROHIBIT THE PUBLISHING OR

  COMMUNICATING OF, OR THE ATTEMPTING TO PUBLISH OR COMMUNICATE ANY

 INFORMATION RELATING TO THE NATIONAL DEFENSE WHICH, IN HIS

  JUDGMENT, IS OF SUCH CHARACTER THAT IT IS OR MIGHT BE USEFUL TO

  THE ENEMY.  WHOEVER VIOLATES ANY SUCH PROHIBITION SHALL BE

  PUNISHED BY A FINE OF NOT MORE THAN $10,000 OR BY IMPRISONMENT

  FOR NOT MORE THAN 10 YEARS, OR BOTH: PROVIDED, THAT NOTHING IN

  THIS SECTION SHALL BE CONSTRUED TO LIMIT OR RESTRICT ANY

  DISCUSSION, COMMENT, OR CRITICISM OF THE ACTS OR POLICIES OF THE

  GOVERNMENT OR ITS REPRESENTATIVES OR THE PUBLICATION OF THE

  SAME."  55 CONG.REC.  1763. 

CONGRESS REJECTED THIS PROPOSAL AFTER WAR AGAINST GERMANY HAD BEEN
DECLARED EVEN THOUGH MANY BELIEVED THAT THERE WAS A GRAVE NATIONAL
EMERGENCY AND THAT THE THREAT OF SECURITY LEAKS AND ESPIONAGE WAS
SERIOUS.  THE EXECUTIVE BRANCH HAS NOT GONE TO CONGRESS AND REQUESTED
THAT THE DECISION TO PROVIDE SUCH POWER BE RECONSIDERED.  INSTEAD, THE
EXECUTIVE BRANCH COMES TO THIS COURT AND ASKS THAT IT BE GRANTED THE
POWER CONGRESS REFUSED TO GIVE. 

IN 1957 THE UNITED STATES COMMISSION ON GOVERNMENT SECURITY FOUND
THAT "(AIRPLANE JOURNALS, SCIENTIFIC PERIODICALS, AND EVEN THE DAILY
NEWSPAPER HAVE FEATURED ARTICLES CONTAINING INFORMATION AND OTHER DATA
WHICH SHOULD HAVE BEEN DELETED IN WHOLE OR IN PART FOR SECURITY
REASONS."  IN RESPONSE TO THIS PROBLEM THE COMMISSION PROPOSED THAT
"CONGRESS ENACT LEGISLATION MAKING IT A CRIME FOR ANY PERSON WILLFULLY
TO DISCLOSE WITHOUT PROPER AUTHORIZATION, FOR ANY PURPOSE WHATEVER,
INFORMATION CLASSIFIED 'SECRET' OR 'TOP SECRET,' KNOWING, OR HAVING
REASONABLE GROUNDS TO BELIEVE, SUCH INFORMATION TO HAVE BEEN SO
CLASSIFIED.  REPORT OF COMMISSION ON GOVERNMENT SECURITY 619-620
(1957).  AFTER SUBSTANTIAL FLOOR DISCUSSION ON THE PROPOSAL, IT WAS
REJECTED.  SEE 103 CONG.REC.  10447-10450.  IF THE PROPOSAL THAT SEN.
COTTON CHAMPIONED ON THE FLOOR HAD BEEN ENACTED, THE PUBLICATION OF THE
DOCUMENTS INVOLVED HERE WOULD CERTAINLY HAVE BEEN A CRIME.  THE
GOVERNMENT IS HERE ASKING THIS COURT TO REMAKE THAT DECISION.  THIS
COURT HAS NO SUCH POWER. 

EITHER THE GOVERNMENT HAS THE POWER UNDER STATUTORY GRANT TO USE
TRADITIONAL CRIMINAL LAW TO PROTECT THE COUNTRY OR, IF THERE IS NO
BASIS FOR ARGUING THAT CONGRESS HAS MADE THE ACTIVITY A CRIME, IT IS
PLAIN THAT CONGRESS HAS SPECIFICALLY REFUSED TO GRANT THE AUTHORITY THE
GOVERNMENT SEEKS FROM THIS COURT.  IN EITHER CASE THIS COURT DOES NOT
HAVE AUTHORITY TO GRANT THE REQUESTED RELIEF.  IT IS NOT FOR THIS COURT
TO FLING ITSELF INTO EVERY BREACH PERCEIVED BY SOME GOVERNMENT OFFICIAL
NOR IS IT FOR THIS COURT TO TAKE ON ITSELF THE BURDEN OF ENACTING LAW,
ESPECIALLY A LAW THAT CONGRESS HAS REFUSED TO PASS. 

I BELIEVE THAT THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT SHOULD BE AFFIRMED AND THE
JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SHOULD BE REVERSED INSOFAR AS IT REMANDS THE CASE FOR FURTHER
HEARINGS. 

/1/  SEE N. 3, INFRA. 

/2/  BUT SEE KENT V. DULLES, 357 U.S. 116 (1958); YOUNGSTOWN SHEET &
TUBE CO. V. SAWYER, 343 U.S. 579 (1952). 

/3/  THERE ARE SEVERAL OTHER STATUTORY PROVISIONS PROHIBITING AND
PUNISHING THE DISSEMINATION OF INFORMATION, THE DISCLOSURE OF WHICH
CONGRESS THOUGHT SUFFICIENTLY IMPERILED NATIONAL SECURITY TO WARRANT
THAT RESULT.  THESE INCLUDE 42 U.S.C. 2161 THROUGH 2166 RELATING TO THE
AUTHORITY OF THE ATOMIC ENERGY COMMISSION TO CLASSIFY AND DECLASSIFY
"RESTRICTED DATA" ("RESTRICTED DATA" IS A TERM OF ART EMPLOYED UNIQUELY
BY THE ATOMIC ENERGY ACT).  SPECIFICALLY, 42 U.S.C. 2162 AUTHORIZES THE
ATOMIC ENERGY COMMISSION TO CLASSIFY CERTAIN INFORMATION.  TITLE 42
U.S.C. 2274, SUBSECTION (A), PROVIDES PENALTIES FOR A PERSON WHO
"COMMUNICATES, TRANSMITS, OR DISCLOSES (RESTRICTED DATA) . . . WITH
INTENT TO INJURE THE UNITED STATES OR WITH INTENT TO SECURE AN
ADVANTAGE TO ANY FOREIGN NATION . . . "  SUBSECTION (B) OF SEC. 2274
PROVIDES LESSER PENALTIES FOR THE ONE WHO "COMMUNICATES, TRANSMITS, OR
DISCLOSES" SUCH INFORMATION "WITH REASON TO BELIEVE SUCH DATA WILL BE
UTILIZED TO INJURE THE UNITED STATES OR TO SECURE AN ADVANTAGE TO ANY
FOREIGN NATION . . . "  OTHER SECTIONS OF TITLE 42 OF THE U.S.C.
DEALING WITH ATOMIC ENERGY PROHIBIT AND PUNISH ACQUISITION, REMOVAL,
CONCEALMENT, TAMPERING WITH, ALTERATION, MUTILIZATION, OR DESTRUCTION
OF DOCUMENTS INCORPORATING "RESTRICTED DATA" AND PROVIDE PENALTIES FOR
EMPLOYEES AND FORMER EMPLOYEES OF THE ATOMIC ENERGY COMMISSION, THE
ARMED SERVICES, CONTRACTORS AND LICENSEES OF THE ATOMIC ENERGY
COMMISSION.  TITLE 42 U.S.C. 2276, 2277.  TITLE 50 U.S.C. APP. 781, 56
STAT. 390, PROHIBITS THE MAKING OF ANY SKETCH OR OTHER REPRESENTATION
OF MILITARY INSTALLATIONS OR ANY MILITARY EQUIPMENT LOCATED ON ANY
MILIATRY INSTALLATION, AS SPECIFIED, AND INDEED CONGRESS IN THE
NATIONAL DEFENSE ACT OF 1940, 54 STAT. 676, AS AMENDED, 56 STAT. 179,
CONFERRED JURISDICTION ON FEDERAL DISTRICT COURTS OVER CIVIL ACTIONS
"TO ENJOIN ANY VIOLATION THEREOF.  50 U.S.C. APP. 1152(6).  TITLE 50
U.S.C. 783(B) MAKES IT UNLAWFUL FOR ANY OFFICERS OR EMPLOYEES OF THE
UNITED STATES OR ANY CORPORATION WHICH IS OWNED BY THE UNITED STATES TO
COMMUNICATE MATERIAL WHICH HAS BEEN "CLASSIFIED" BY THE PRESIDENT TO
ANY PERSON WHO THAT GOVERNMENTAL EMPLOYEE KNOWS OR HAS REASON TO
BELIEVE IS AN AGENT OR  REPRESENTATIVE OF ANY FOREIGN GOVERNMENT OR ANY
COMMUNIST ORGANIZATION.     MR. CHIEF JUSTICE BURGER, DISSENTING. 

SO CLEAR ARE THE CONSTITUTIONAL LIMITATIONS ON PRIOR RESTRAINT
AGAINST EXPRESSION, THAT FROM THE TIME OF NEAR V. MINNESOTA, 283 U.S.
697 (1931), UNTIL RECENTLY IN ORGANIZATION FOR A BETTER AUSTIN V.
KEEFE, 402 U.S. 415 (1971), WE HAVE HAD LITTLE OCCASION TO BE CONCERNED
WITH CASES INVOLVING PRIOR RESTRAINTS AGAINST NEWS REPORTING ON MATTERS
OF PUBLIC INTEREST.  THERE IS, THEREFORE, LITTLE VARIATION AMONG THE
MEMBERS OF THE COURT IN TERMS OF RESISTANCE TO PRIOR RESTRAINTS AGAINST
PUBLICATION.  ADHERENCE TO THIS BASIC CONSTITUTIONAL PRINCIPLE,
HOWEVER, DOES NOT MAKES THESE CASES SIMPLE.  IN THESE CASES, THE
IMPERATIVE OF A FREE AND UNFETTERED PRESS COMES INTO COLLISION WITH
ANOTHER IMPERATIVE, THE EFFECTIVE FUNCTIONING OF A COMPLEX MODERN
GOVERNMENT AND SPECIFICALLY THE EFFECTIVE EXERCISE OF CERTAIN
CONSTITUTIONAL POWERS OF THE EXECUTIVE.  ONLY THOSE WHO VIEW THE FIRST
AMENDMENT AS AN ABSOLUTE IN ALL CIRCUMSTANCES-- A VIEW I RESPECT, BUT
REJECT-- CAN FIND SUCH CASES AS THESE TO BE SIMPLE OR EASY. 

THESE CASES ARE NOT SIMPLY FOR ANOTHER AND MORE IMMEDIATE REASON. 
WE DO NOT KNOW THE FACTS OF THESE CASES.  NO DISTRICT JUDGE KNEW ALL
THE FACTS.  NO COURT OF APPEALS JUDGE KNEW ALL THE FACTS.  NO MEMBER OF
THIS COURT KNOWS ALL THE FACTS. 

WHY ARE WE IN THIS POSTURE, IN WHICH ONLY THOSE JUDGES TO WHOM THE
FIRST AMENDMENT IS ABSOLUTE AND PERMITS OF NO RESTRAINT IN ANY
CIRCUMSTANCES OR FOR ANY REASON, ARE REALLY IN A POSITION TO ACT? 

I SUGGEST WE ARE IN THIS POSTURE BECAUSE THESE CASES HAVE BEEN
CONDUCTED IN UNSEEMLY HASTE.  MR. JUSTICE HARLAN COVERS THE CHRONOLOGY
OF EVENTS DEMONSTRATING THE HECTIC PRESSURES UNDER WHICH THESE CASES
HAVE BEEN PROCESSED AND I NEED NOT RESTATE THEM.  THE PROMPT SETTING OF
THESE CASES REFLECTS OUR UNIVERSAL ABHORRENCE OF PRIOR RESTRAINT.  BUT
PROMPT JUDICIAL ACTION DOES NOT MEAN, UNJUDICIAL HASTE. 

HERE, MOREOVER, THE FRENETIC HASTE IS DUE IN LARGE PART TO THE
MANNER IN WHICH THE TIMES PROCEEDED FROM THE DATE IT OBTAINED THE
PURLOINED DOCUMENTS.  IT SEEMS REASONABLY CLEAR NOW THAT THE HASTE
PRECLUDED REASONABLE AND DELIBERATE JUDICIAL TREATMENT OF THESE CASES
AND WAS NOT WARRANTED.  THE PRECIPITATE ACTION OF THIS COURT ABORTING
TRIALS NOT YET COMPLETED IS NOT THE KIND OF JUDICIAL CONDUCT THAT OUGHT
TO ATTEND THE DISPOSITION OF A GREAT ISSUE. 

THE NEWSPAPERS MAKE A DERIVATIVE CLAIM UNDER THE FIRST AMENDMENT;
THEY DENOMINATE THIS RIGHT AS THE PUBLIC "RIGHT TO KNOW"; BY
IMPLICATION, THE TIMES ASSERTS A SOLE TRUSTEESHIP OF THAT RIGHT BY
VIRTUE OF ITS JOURNALISTIC "SCOOP."  THE RIGHT IS ASSERTED AS AN
ABSOLUTE.  OF COURSE, THE FIRST AMENDMENT RIGHT ITSELF IS NOT AN
ABSOLUTE, AS JUSTICE HOLMES SO LONG AGO POINTED OUT IN HIS APHORISM
CONCERNING THE RIGHT TO SHOUT "FIRE" IN A CROWDED THEATER IF THERE WAS
NO FIRE.  THERE ARE OTHER EXCEPTIONS, SOME OF WHICH CHIEF JUSTICE
HUGHES MENTIONED BY WAY OF EXAMPLE IN NEAR V. MINNESOTA.  THERE ARE NO
DOUBT OTHER EXCEPTIONS NO ONE HAS HAD OCCASION TO DESCRIBE OR DISCUSS. 
CONCEIVABLY SUCH EXCEPTIONS MAY BE LURKING IN THESE CASES AND WOULD
HAVE BEEN FLUSHED HAD THEY BEEN PROPERLY CONSIDERED IN THE TRIAL
COURTS, FREE FROM UNWARRANTED DEADLINES AND FRENETIC PRESSURES.  AN
ISSUE OF THIS IMPORTANCE SHOULD BE TRIED AND HEARD IN A JUDICIAL
ATMOSPHERE CONDUCIVE TO THOUGHTFUL, REFLECTIVE DELIBERATION, ESPECIALLY
WHEN HASTE, IN TERMS OF HOURS, IS UNWARRANTED IN LIGHT OF THE LONG
PERIOD THE TIMES, BY ITS OWN CHOICE, DEFERRED PUBLICATION.  /1/ 

IT IS NOT DISPUTED THAT THE TIMES HAS HAD UNAUTHORIZED POSSESSION OF
THE DOCUMENTS FOR THREE TO FOUR MONTHS, DURING WHICH IT HAS HAD ITS
EXPERT ANALYSTS STUDYING THEM, PRESUMABLY DIGESTING THEM AND PREPARING
THE MATERIAL FOR PUBLICATION.  DURING ALL OF THIS TIME, THE TIMES
PRESUMABLY IN ITS CAPACITY AS TRUSTEE OF THE PUBLIC'S "RIGHT TO KNOW,"
HAS HELD UP PUBLICATION FOR PURPOSES IT CONSIDERED PROPER AND THUS
PUBLIC KNOWLEDGE WAS DELAYED.  NO DOUBT THIS WAS FOR A GOOD REASON; THE
ANALYSIS OF 7,000 PAGES OF COMPLEX MATERIAL DRAWN FROM A VASTLY GREATER
VOLUME OF MATERIAL WOULD INEVITABLY TAKE TIME AND THE WRITING OF GOOD
NEWS STORIES TAKES TIME.  BUT WHY SHOULD THE UNITED STATES GOVERNMENT,
FROM WHOM THIS INFORMATION WAS ILLEGALLY ACQUIRED BY SOMEONE, ALONG
WITH ALL THE COUNSEL, TRIAL JUDGES, AND APPELLATE JUDGES BE PLACED
UNDER NEEDLESS PRESSURE?  AFTER THESE MONTHS OF DEFERRAL, THE ALLEGED
"RIGHT TO KNOW" HAS SOMEHOW AND SUDDENLY BECOME A RIGHT THAT MUST BE
VINDICATED INSTANTER. 

WOULD IT HAVE BEEN UNREASONABLE, SINCE THE NEWSPAPER COULD
ANTICIPATE THE GOVERNMENT'S OBJECTIONS TO RELEASE OF SECRET MATERIAL,
TO GIVE THE GOVERNMENT AN OPPORTUNITY TO REVIEW THE ENTIRE COLLECTION
AND DETERMINE WHETHER AGREEMENT COULD BE REACHED ON PUBLICATION? 
STOLEN OR NOT, IF SECURITY WAS NOT IN FACT JEOPARDIZED, MUCH OF THE
MATERIAL COULD NOT DOUBT HAVE BEEN DECLASSIFIED, SINCE IT SPANS A
PERIOD ENDING IN 1968.  WITH SUCH AN APPROACH-- ONE THAT GREAT
NEWSPAPERS HAVE IN THE PAST PRACTICED AND STATED EDITORIALLY TO BE THE
DUTY OF AN HONORABLE PRESS-- THE NEWSPAPERS AND GOVERNMENT MIGHT WELL
HAVE NARROWED THE AREA OF DISAGREEMENT AS TO WHAT WAS AND WAS NOT
PUBLISHABLE, LEAVING THE REMAINDER TO BE RESOLVED IN ORDER LITIGATION,
IF NECESSARY.  TO ME IT IS HARDLY BELIEVABLE THAT A NEWSPAPER LONG
REGARDED AS A GREAT INSTITUTION IN AMERICAN LIFE WOULD FAIL TO PERFORM
ONE OF THE BASIC AND SIMPLE DUTIES OF EVERY CITIZEN WITH RESPECT TO THE
DISCOVERY OR POSSESSION OF STOLEN PROPERTY OR SECRET GOVERNMENT
DOCUMENTS.  THAT DUTY, I HAD THOUGHT-- PERHAPS NAIVELY-- WAS TO REPORT
FORTHWITH, TO RESPONSIBLE PUBLIC OFFICERS.  THIS DUTY RESTS ON TAXI
DRIVERS, JUSTICES AND THE NEW YORK TIMES.  THE COURSE FOLLOWED BY THE
TIMES, WHETHER SO CALCULATED OR NOT, REMOVED ANY POSSIBILITY OF ORDERLY
LITIGATION OF THE ISSUES.  IF THE ACTION OF THE JUDGES UP TO NOW HAS
BEEN CORRECT, THAT RESULT IS SHEER HAPPENSTANCE.  /2/ 

OUR GRANT OF THE WRIT OF CERTIORARI BEFORE FINAL JUDGMENT IN THE
TIMES CASE ABORTED THE TRIAL IN THE DISTRICT COURT BEFORE IT HAD MADE A
COMPLETE RECORD PURSUANT TO THE MANDATE OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT. 

THE CONSEQUENCE OF ALL THIS MELANCHOLY SERIES OF EVENTS IS THAT WE
LITERALLY DO NOT KNOW WHAT WE ARE ACTING ON.  AS I SEE IT, WE HAVE BEEN
FORCED TO DEAL WITH LITIGATION CONCERNING RIGHTS OF GREAT MAGNITUDE
WITHOUT AN ADEQUATE RECORD, AND SURELY WITHOUT TIME FOR ADEQUATE
TREATMENT EITHER IN THE PRIOR PROCEEDINGS OR IN THIS COURT.  IT IS
INTERESTING TO NOTE THAT COUNSEL ON BOTH SIDES, IN ORAL ARGUMENT BEFORE
THIS COURT, WERE FREQUENTLY UNABLE TO RESPOND TO QUESTIONS ON FACTUAL
POINTS.  NOT SURPRISINGLY THEY POINTED OUT THAT THEY HAD BEEN WORKING
LITERALLY "AROUND THE CLOCK" AND SIMPLY WERE UNABLE TO REVIEW THE
DOCUMENTS THAT GIVE RISE TO THESE CASES AND WERE NOT FAMILIAR WITH
THEM.  THIS COURT IS IN NO BETTER POSTURE.  I AGREE GENERALLY WITH MR.
JUSTICE HARLAN AND MR. JUSTICE BLACKMUN BUT I AM NOT PREPARED TO REACH
THE MERITS.  /3/ 

I WOULD AFFIRM THE COURT OF APPEALS FOR THE SECOND CIRCUIT AND ALLOW
THE DISTRICT COURT TO COMPLETE THE TRIAL ABORTED BY OUR GRANT OF
CERTIORARI, MEANWHILE PRESERVING THE STATUS QUO IN THE POST CASE.  I
WOULD DIRECT THAT THE DISTRICT COURT ON REMAND GIVE PRIORITY TO THE
TIMES CASE TO THE EXCLUSION OF ALL OTHER BUSINESS OF THAT COURT BUT I
WOULD NOT SET ARBITRARY DEADLINES. 

I SHOULD ADD THAT I AM IN GENERAL AGREEMENT WITH MUCH OF WHAT MR.
JUSTICE WHITE HAS EXPRESSED WITH RESPECT TO PENAL SANCTIONS CONCERNING
COMMUNICATION OR RETENTION OF DOCUMENTS OR INFORMATION RELATING TO THE
NATIONAL DEFENSE. 

WE ALL CRAVE SPEEDIER JUDICIAL PROCESSES BUT WHEN JUDGES ARE
PRESSURED AS IN THESE CASES THE RESULT IS A PARODY OF THE JUDICIAL
FUNCTION. 

/1/  AS NOTED ELSEWHERE THE TIMES CONDUCTED ITS ANALYSIS OF THE 47
VOLUMES OF GOVERNMENT DOCUMENTS OVER A PERIOD OF SEVERAL MONTHS AND DID
SO WITH A DEGREE OF SECURITY THAT A GOVERNMENT MIGHT ENVY.  SUCH
SECURITY WAS ESSENTIAL, OF COURSE, TO PROTECT THE ENTERPRISE FROM
OTHERS.  MEANWHILE THE TIMES HAS COPYRIGHTED ITS MATERIAL AND THERE
WERE STRONG INTIMATIONS IN THE ORAL ARGUMENT THAT THE TIMES
CONTEMPLATED ENJOINING ITS USE BY ANY OTHER PUBLISHED IN VIOLATION OF
ITS COPYRIGHT.  PARADOXICALLY THIS WOULD AFFORD IT A PROTECTION,
ANALOGOUS TO PRIOR RESTRAINT, AGAINST ALL OTHERS-- A PROTECTION THE
TIMES DENIES THE GOVERNMENT OF THE UNITED STATES. 

/2/  INTERESTINGLY THE TIMES EXPLAINED ITS REFUSAL TO ALLOW THE
GOVERNMENT TO EXAMINE ITS OWN PURLOINED DOCUMENTS BY SAYING IN
SUBSTANCE THIS MIGHT COMPROMISE ITS SOURCES AND INFORMANTS.  THE TIMES
THUS ASSERTS A RIGHT TO GUARD THE SECRECY OF ITS SOURCES WHILE DENYING
THAT THE GOVERNMENT OF THE UNITED STATES HAS THAT POWER. 

/3/  WITH RESPECT TO THE QUESTION OF INHERENT POWER OF THE EXECUTIVE
TO CLASSIFY PAPERS, RECORDS, AND DOCUMENTS AS SECRET, OR OTHERWISE
UNAVAILABLE FOR PUBLIC EXPOSURE, AND TO SECURE AID OF THE COURTS FOR
ENFORCEMENT, THERE MAY BE AN ANALOGY WITH RESPECT TO THIS COURT.  NO
STATUTE GIVES THIS COURT EXPRESS POWER TO ESTABLISH AND ENFORCE THE
UTMOST SECURITY MEASURES FOR THE SECRECY OF OUR DELIBERATIONS AND
RECORDS.  YET I HAVE LITTLE DOUBT AS TO THE INHERENT POWER OF THE COURT
TO PROTECT THE CONFIDENTIALITY OF ITS INTERNAL OPERATIONS BY WHATEVER
JUDICIAL MEASURES MAY BE REQUIRED. 

MR. JUSTICE HARLAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

THESE CASES FORCEFULLY CALL TO MIND THE WISE ADMONITION OF MR.
JUSTICE HOLMES, DISSENTING IN NORTHERN SECURITIES CO. V. UNITED STATES,
193 U.S. 197, 400-401 (1904): 

"GREAT CASES LIKE HARD CASES MAKE BAD LAW.  FOR GREAT CASES ARE

  CALLED GREAT, NOT BY REASON OF THEIR REAL IMPORTANCE IN SHAPING

  THE LAW OF THE FUTURE, BUT BECAUSE OF SOME ACCIDENT OF IMMEDIATE

  OVERWHELMING INTEREST WHICH APPEALS TO THE FEELINGS AND DISTORTS

  THE JUDGMENT.  THESE IMMEDIATE INTERESTS EXERCISE A KIND OF

  HYDRAULIC PRESSURE WHICH MAKES WHAT PREVIOUSLY WAS CLEAR SEEM

  DOUBTFUL, AND BEFORE WHICH EVEN WELL SETTLED PRINCIPLES OF LAW

  WILL BEND." 

WITH ALL RESPECT, I CONSIDER THAT THE COURT HAS BEEN ALMOST
IRRESPONSIBLY FEVERISH IN DEALING WITH THESE CASES. 

BOTH THE COURT OF APPEALS FOR THE SECOND CIRCUIT AND THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT RENDERED JUDGMENT ON JUNE
23.  THE NEW YORK TIMES' PETITION FOR CERTIORARI, ITS MOTION FOR
ACCELERATED CONSIDERATION THEREOF, AND ITS APPLICATION FOR INTERIM
RELIEF WERE FILED IN THIS COURT ON JUNE 24 AT ABOUT 11 A.M.  THE
APPLICATION OF THE UNITED STATES FOR INTERIM RELIEF IN THE POST CASE
WAS ALSO FILED HERE ON JUNE 24 AT ABOUT 7:15 P.M.  THIS COURT'S ORDER
SETTING AHEARING BEFORE US ON JUNE 26 AT 11 A.M., A COURSE WHICH I
JOINED ONLY TO AVOID THE POSSIBILITY OF EVEN MORE PEREMPTORY ACTION BY
THE COURT, WAS ISSUED LESS THAN 24 HOURS BEFORE.  THE RECORD IN THE
POST CASE WAS FILED WITH THE CLERK SHORTLY BEFORE 1 P.M. ON JUNE 25;
THE RECORD IN THE TIMES CASE DID NOT ARRIVE UNTIL 7 OR 8 O'CLOCK THAT
SAME NIGHT.  THE BRIEFS OF THE PARTIES WERE RECEIVED LESS THAN TWO
HOURS BEFORE ARGUMENT ON JUNE 26. 

THIS FRENZIED TRAIN OF EVENTS TOOK PLACE IN THE NAME OF THE
PRESUMPTION AGAINST PRIOR RESTRAINTS CREATED BY THE FIRST AMENDMENT. 
DUE REGARD FOR THE EXTRAORDINARILY IMPORTANT AND DIFFICULT QUESTIONS
INVOLVED IN THESE LITIGATIONS SHOULD HAVE LED THE COURT TO SHUN SUCH A
PRECIPITATE TIMETABLE.  IN ORDER TO DECIDE THE MERITS OF THESE CASES
PROPERLY, SOME OR ALL OF THE FOLLOWING QUESTIONS SHOULD HAVE BEEN
FACED: 

1.  WHETHER THE ATTORNEY GENERAL IS AUTHORIZED TO BRING THESE SUITS
IN THE NAME OF THE UNITED STATES.  COMPARE IN RE DEBS.  158 U.S. 564
(1895), WITH YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579
(1952)).  THIS QUESTION INVOLVES AS WELL THE CONSTRUCTION AND VALIDITY
OF A SINGULARLY OPAQUE STATUTE-- THE ESPIONAGE ACT, 18 U.S.C. 793(E). 

2.  WHETHER THE FIRST AMENDMENT PERMITS THE FEDERAL COURTS TO ENJOIN
PUBLICATION OF STORIES WHICH WOULD PRESENT A SERIOUS THREAT TO NATIONAL
SECURITY.  SEE NEAR V. MINNESOTA, 283 U.S. 697, 716 (1931) (DICTUM). 

3.  WHETHER THE THREAT TO PUBLISH HIGHLY SECRET DOCUMENTS IS OF
ITSELF A SUFFICIENT IMPLICATION OF NATIONAL SECURITY TO JUSTIFY AN
INJUNCTION ON THE THEORY THAT REGARDLESS OF THE CONTENTS OF THE
DOCUMENTS HARM ENOUGH RESULTS SIMPLY FROM THE DEMONSTRATION OF SUCH A
BREACH OF SECRECY. 

4.  WHETHER THE UNAUTHORIZED DISCLOSURE OF ANY OF THESE PARTICULAR
DOCUMENTS WOULD SERIOUSLY IMPAIR THE NATIONAL SECURITY. 

5.  WHAT WEIGHT SHOULD BE GIVEN TO THE OPINION OF HIGH OFFICERS IN
THE EXECUTIVE BRANCH OF THE GOVERNMENT WITH RESPECT TO QUESTIONS 3 AND
4. 

6.  WHETHER THE NEWSPAPERS ARE ENTITLED TO RETAIN AND USE THE
DOCUMENTS NOTWITHSTANDING THE SEEMINGLY UNCONTESTED FACTS THAT THE
DOCUMENTS, OR THE ORIGINALS OF WHICH THEY ARE DUPLICATES, WERE
PURLOINED FROM THE GOVERNMENT'S POSSESSION AND THAT THE NEWSPAPERS
RECEIVED THEM WITH KNOWLEDGE THAT THEY HAD BEEN FELONIOUSLY ACQUIRED. 
CF. LIBERTY LOBBY, INC. V. PEARSON, 129 U.S.APP.D.C. 74, 390 F.2D 489
(1967, AMENDED 1968).     7.  WHETHER THE THREATENED HARM TO THE
NATIONAL SECURITY OR THE GOVERNMENT'S POSSESSORY INTEREST IN THE
DOCUMENTS JUSTIFIES THE ISSUANCE OF AN INJUNCTION AGAINST PUBLICATION
IN LIGHT OF-- 

A. THE STRONG FIRST AMENDMENT POLICY AGAINST PRIOR RESTRAINTS ON
PUBLICATION; 

B. THE DOCTRINE AGAINST ENJOINING CONDUCT IN VIOLATION OF CRIMINAL
STATUTES AND 

C. THE EXTENT TO WHICH THE MATERIALS AT ISSUE HAVE APPARENTLY
ALREADY BEEN OTHERWISE DISSEMINATED. 

THESE ARE DIFFICULT QUESTIONS OF FACT, OF LAW, AND OF JUDGMENT, THE
POTENTIAL CONSEQUENCES OF ERRONEOUS DECISION ARE ENORMOUS.  THE TIME
WHICH HAS BEEN AVAILABLE TO US, TO THE LOWER COURTS, /1/  AND TO THE
PARTIES HAS BEEN WHOLLY INADEQUATE FOR GIVING THESE CASES THE KIND OF
CONSIDERATION THEY DESERVE.  IT IS A REFLECTION ON THE STABILITY OF THE
JUDICIAL PROCESS THAT THESE GREAT ISSUES-- AS IMPORTANT AS ANY THAT
HAVE ARISEN DURING MY TIME ON THE COURT-- SHOULD HAVE BEEN DECIDED
UNDER THE PRESSURES ENGENDERED BY THE TORRENT OF PUBLICITY THAT HAS
ATTENDED THESE LITIGATIONS FROM THEIR INCEPTION. 

FORCED AS I AM TO REACH THE MERITS OF THESE CASES, I DISSENT FROM
THE OPINION AND JUDGMENTS OF THE COURT.  WITHIN THE SEVERE LIMITATIONS
IMPOSED BY THE TIME CONSTRAINTS UNDER WHICH I HAVE BEEN REQUIRED TO
OPERATE, I CAN ONLY STATE MY REASONS IN TELESCOPED FORM, EVEN THOUGH IN
DIFFERENT CIRCUMSTANCES I WOULD HAVE FELT CONSTRAINED TO DEAL WITH THE
CASES IN THE FULLER SWEEP INDICATED ABOVE. 

IT IS A SUFFICIENT BASIS FOR AFFIRMING THE COURT OF APPEALS FOR THE
SECOND CIRCUIT IN THE TIMES LITIGATION TO OBSERVE THAT ITS ORDER MUST
REST ON THE CONCLUSION THAT BECAUSE OF THE TIME ELEMENTS THE GOVERNMENT
HAD NOT BEEN GIVEN AN ADEQUATE OPPORTUNITY TO PRESENT ITS CASE TO THE
DISTRICT COURT.  AT THE LEAST THIS CONCLUSION WAS NOT AN ABUSE OF
DISCRETION. 

IN THE POST LITIGATION THE GOVERNMENT HAD MORE TIME TO PREPARE; THIS
WAS APPARENTLY THE BASIS FOR THE REFUSAL OF THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT ON REHEARING TO CONFORM ITS JUDGMENT
TO THAT OF THE SECOND CIRCUIT.  BUT I THINK THERE IS ANOTHER AND MORE
FUNDAMENTAL REASON WHY THIS JUDGMENT CANNOT STAND-- A REASON WHICH ALSO
FURNISHED AN ADDITIONAL GROUND FOR NOT REINSTATING THE JUDGMENT OF THE
DISTRICT COURT IN THE TIMES LITIGATION, SET ASIDE BY THE COURT OF
APPEALS.  IT IS PLAIN TO ME THAT THE SCOPE OF THE JUDICIAL FUNCTION IN
PASSING UPON THE ACTIVITIES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT
IN THE FIELD OF FOREIGN AFFAIRS IS VERY NARROWLY RESTRICTED.  THIS VIEW
IS, I THINK, DICTATED BY THE CONCEPT OF SEPARATION OF POWERS UPON WHICH
OUR CONSTITUTIONAL SYSTEM RESTS. 

IN A SPEECH ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES, CHIEF
JUSTICE JOHN MARHSALL, THEN A MEMBER OF THAT BODY, STATED: 

 "THE PRESIDENT IS THE SOLE ORGAN OF THE NATION IN ITS EXTERNAL

  RELATIONS, AND ITS SOLE REPRESENTATIVE WITH FOREIGN NATIONS."  10

  ANNALS OF CONG. 613 (1800). 

FROM THAT TIME, SHORTLY AFTER THE FOUNDING OF THE NATION, TO THIS,
THERE HAS BEEN NO SUBSTANTIAL CHALLENGE TO THIS DESCRIPTION OF THE
SCOPE OF EXECUTIVE POWER.  SEE UNITED STATES V. CURTISS-WRIGHT CORP.,
299 U.S. 304, 319-321 (1936), COLLECTING AUTHORITIES. 

FROM THIS CONSTITUTIONAL PRIMACY IN THE FIELD OF FOREIGN AFFAIRS, IT
SEEMS TO ME THAT CERTAIN CONCLUSIONS NECESSARILY FOLLOW.  SOME OF THESE
WERE STATED CONCISELY BY PRESIDENT WASHINGTON, DECLINING THE REQUEST OF
THE HOUSE OF REPRESENTATIVES FOR THE PAPERS LEADING UP TO THE
NEGOTIATION OF THE JAY TREATY: 

 "THE NATURE OF FOREIGN NEGOTIATIONS REQUIRES CAUTION, AND THEIR

  SUCCESS MUST OFTEN DEPEND ON SECRECY; AND EVEN WHEN BROUGHT TO A

  CONCLUSION A FULL DISCLOSURE OF ALL THE MEASURES, DEMANDS, OR

  EVENTUAL CONCESSIONS WHICH MAY HAVE BEEN PROPOSED OR CONTEMPLATED

  WOULD BE EXTREMELY IMPOLITIC; FOR THIS MIGHT HAVE A PERNICIOUS

  INFLUENCE ON FUTURE NEGOTIATIONS, OR PRODUCE IMMEDIATE

  INCONVENIENCES, PERHAPS DANGER AND MISCHIEF, IN RELATION TO OTHER

  POWERS."  1 J.RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS

  194-195 (1896). 

THE POWER TO EVALUATE THE "PERNICIOUS INFLUENCE" OF PREMATURE
DISCLOSURE IS NOT, HOWEVER, LODGED IN THE EXECUTIVE ALONE.  I AGREE
THAT, IN PERFORMANCE OF ITS DUTY TO PROTECT THE VALUES OF THE FIRST
AMENDMENT AGAINST POLITICAL PRESSURES, THE JUDICIARY MUST REVIEW THE
INITIAL EXECUTIVE DETERMINATION TO THE POINT OF SATISFYING ITSELF THAT
THE SUBJECT MATTER OF THE DISPUTE DOES LIE WITHIN THE PROPER COMPASS OF
THE PRESIDENT'S FOREIGN RELATIONS POWER.  CONSTITUTIONAL CONSIDERATIONS
FORBID "A COMPLETE ABANDONMENT OF JUDICIAL CONTROL."  CF. UNITED STATES
V. REYNOLDS, 345 U.S. 1, 8 (1953).  MOREOVER, THE JUDICIARY MAY
PROPERLY INSIST THAT THE DETERMINATION THAT DISCLOSURE OF THE SUBJECT
MATTER WOULD IRREPARABLY IMPAIR THE NATIONAL SECURITY BE MADE BY THE
HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED-- HERE THE SECRETARY OF
STATE OR THE SECRETARY OF DEFENSE-- AFTER ACTUAL PERSONAL CONSIDERATION
BY THAT OFFICER.  THIS SAFEGUARD IS REQUIRED IN THE ANALOGOUS AREA OF
EXECUTIVE CLAIMS OF PRIVILEGE FOR SECRETS OF STATE.  SEE ID., AT 8 AND
N. 20; DUNCAN V. CAMMELL, LAIRD & CO. (1942) A.C. 624, 638 (HOUSE OF
LORDS). 

BUT IN MY JUDGMENT THE JUDICIARY MAY NOT PROPERLY GO BEYOND THESE
TWO INQUIRIES AND REDETERMINE FOR ITSELF THE PROBABLE IMPACT OF
DISCLOSURE ON THE NATIONAL SECURITY. 

"(THE VERY NATURE OF EXECUTIVE DECISIONS AS TO FOREIGN POLICY IS
POLITICAL, NOT JUDICIAL.  SUCH DECISIONS ARE WHOLLY CONFIDED BY OUR
CONSTITUTION TO THE POLITICAL DEPARTMENTS OF THE GOVERNMENT, EXECUTIVE
AND LEGISLATIVE.  THEY ARE DELICATE, COMPLEX, AND INVOLVE LARGE
ELEMENTS OF PROPHECY.  THEY ARE AND SHOULD BE UNDERTAKEN ONLY BY THOSE
DIRECTLY RESPONSIBLE TO THE PEOPLE WHOSE WELFARE THEY ADVANCE OR
IMPERIL.  THEY ARE DECISIONS OF A KIND FOR WHICH THE JUDICIARY HAS
NEITHER APTITUDE, FACILITIES NOR RESPONSIBILITY AND WHICH HAS LONG BEEN
HELD TO BELONG IN THE DOMAIN OF POLITICAL POWER NOT SUBJECT TO JUDICIAL
INTRUSION OR INQUIRY."  CHICAGO & SOUTHERN AIR LINES V. WATERMAN
STEAMSHIP CORP., 333 U.S. 103, 111 (1948) (JACKSON, J.). 

EVEN IF THERE IS SOME ROOM FOR THE JUDICIARY TO OVERRIDE THE
EXECUTIVE DETERMINATION, IT IS PLAIN THAT THE SCOPE OF REVIEW MUST BE
EXCEEDINGLY NARROW.  I CAN SEE NO INDICATION IN THE OPINIONS OF EITHER
THE DISTRICT COURT OR THE COURT OF APPEALS IN THE POST LITIGATION THAT
THE CONCLUSIONS OF THE EXECUTIVE WERE GIVEN EVEN THE DEFERENCE OWING TO
AN ADMINISTRATIVE AGENCY, MUCH LESS THAT OWING TO A CO-EQUAL BRANCH OF
THE GOVERNMENT OPERATING WITHIN THE FIELD OF ITS CONSTITUTIONAL
PREROGATIVE. 

ACCORDINGLY, I WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT ON THIS GROUND AND REMAND THE CASE FOR
FURTHER PROCEEDINGS IN THE DISTRICT COURT.  BEFORE THE COMMENCEMENT OF
SUCH FURTHER PROCEEDINGS, DUE OPPORTUNITY SHOULD BE AFFORDED THE
GOVERNMENT FOR PROCURING FROM THE SECRETARY OF STATE OR THE SECRETARY
OF DEFENSE OR BOTH AN EXPRESSION OF THEIR VIEWS ON THE ISSUE OF
NATIONAL SECURITY.  THE ENSUING REVIEW BY THE DISTRICT COURT SHOULD BE
IN ACCORDANCE WITH THE VIEWS EXPRESSED IN THIS OPINION.  AND FOR THE
REASONS STATED ABOVE I WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PENDING FURTHER HEARINGS IN EACH CASE CONDUCTED UNDER THE
APPROPRIATE GROUND RULES, I WOULD CONTINUE THE RESTRAINTS ON
PUBLICATION.  I CANNOT BELIEVE THAT THE DOCTRINE PROHIBITING PRIOR
RESTRAINTS REACHES TO THE POINT OF PREVENTING COURTS FROM MAINTAINING
THE STATUS QUO LONG ENOUGH TO ACT RESPONSIBLY IN MATTERS OF SUCH
NATIONAL IMPORTANCE AS THOSE INVOLVED HERE. 

/1/  THE HEARING IN THE POST CASE BEFORE JUDGE GESSELL BEGAN AT 8
A.M. ON JUNE 21, AND HIS DECISION WAS RENDERED, UNDER THE HAMMER OF A
DEADLINE IMPOSED BY THE COURT OF APPEALS, SHORTLY BEFORE 5 P.M. ON THE
SAME DAY.  THE HEARING IN THE TIMES CASE BEFORE JUDGE GURFEIN WAS HELD
ON JUNE 18 AND HIS DECISION WAS RENDERED ON JUNE 19.  THE GOVERNMENT'S
APPEALS IN THE TWO CASES WERE HEARD BY THE COURTS OF APPEALS FOR THE
DISTRICT OF COLUMBIA AND SECOND CIRCUITS, EACH COURT SITTING EN BANC,
ON JUNE 22.  EACH COURT RENDERED ITS DECISION ON THE FOLLOWING
AFTERNOON. 

MR. JUSTICE BLACKMUN, DISSENTING. 

I JOIN MR. JUSTICE HARLAN IN HIS DISSENT.  I ALSO AM IN SUBSTANTIAL
ACCORD WITH MUCH THAT MR. JUSTICE WHITE SAYS, MAY WAY OF ADMONITION, IN
THE LATTER PART OF HIS OPINION. 

AT THIS POINT THE FOCUS IS ON ONLY THE COMPARATIVELY FEW DOCUMENTS
SPECIFIED BY THE GOVERNMENT AS CRITICAL.  SO FAR AS THE OTHER MATERIAL-
VAST IN AMOUNT-- IS CONCERNED, LET IT BE PUBLISHED AND PUBLISHED
FORTHWITH IF THE NEWSPAPERS, ONCE THE STRAIN IS GONE AND THE
SENSATIONALISM IS EASED, STILL FEEL THE URGE SO TO DO. 

BUT WE ARE CONCERNED HERE WITH THE FEW DOCUMENTS SPECIFIED FROM THE
47 VOLUMES.  ALMOST 70 YEARS AGO MR. JUSTICE HOLMES, DISSENTING IN A
CELEBRATED CASE, OBSERVED: 

   "GREAT CASES LIKE HARD CASES MAKE BAD LAW.  FOR GREAT CASES ARE

  CALLED GREAT, NOT BY REASON OF THEIR REAL IMPORTANCE IN SHAPING

  THE LAW OF THE FUTURE, BUT BECAUSE OF SOME ACCIDENT OF IMMEDIATE

  OVERWHELMING INTEREST WHICH APPEALS TO THE FEELINGS AND DISTORTS

  THE JUDGMENT.  THESE IMMEDIATE INTERESTS EXERCISE A KIND OF

  HYDRAULIC PRESSURE . . . "  NORTHERN SECURITIES CO. V. UNITED

  STATES, 193 U.S. 197, 400-401 (1904). 

THE PRESENT CASES, IF NOT GREAT, ARE AT LEAST UNUSUAL IN THEIR POSTURE
AND IMPLICATIONS, AND THE HOLMES OBSERVATION CERTAINLY HAS PERTINENT
APPLICATION. 

THE NEW YORK TIMES CLANDESTINELY DEVOTED A PERIOD OF THREE MONTHS TO
EXAMINING THE 47 VOLUMES THAT CAME INTO ITS UNAUTHORIZED POSSESSION. 
ONCE IT HAD BEGUN PUBLICATION OF MATERIAL FROM THOSE VOLUMES, THE NEW
YORK CASE NOW BEFORE US EMERGED.  IT IMMEDIATELY ASSUMED, AND EVER
SINCE HAS MAINTAINED, A FRENETIC PACE AND CHARACTER.  SEEMINGLY, ONCE
PUBLICATION STARTED, THE MATERIAL COULD NOT BE MADE PUBLIC FAST
ENOUGH.  SEEMINGLY, FROM THEN ON, EVERY DEFERRAL OR DELAY, BY RESTRAINT
OR OTHERWISE, WAS ABHORRENT AND WAS TO BE DEEMED VIOLATIVE OF THE FIRST
AMENDMENT AND OF THE PUBLIC'S "RIGHT IMMEDIATELY TO KNOW."  YET THAT
NEWSPAPER STOOD BEFORE US AT ORAL ARGUMENT AND PROFESSED CRITICISM OF
THE GOVERNMENT FOR NOT LODGING ITS PROTEST EARLIER THAN BY A MONDAY
TELEGRAM FOLLOWING THE INITIAL SUNDAY PUBLICATION. 

THE DISTRICT OF COLUMBIA CASE IS MUCH THE SAME. 

TWO FEDERAL DISTRICT COURTS, TWO UNITED STATES COURTS OF APPEALS,
AND THIS COURT-- WITHIN A PERIOD OF LESS THAN THREE WEEKS FROM
INCEPTION UNTIL TODAY-- HAVE BEEN PRESSED INTO HURRIED DECISION OF
PROFOUND CONSTITUTIONAL ISSUES ON INADEQUATELY DEVELOPED AND LARGELY
ASSUMED FACTS WITHOUT THE CAREFUL DELIBERATION THAT, ONE WOULD HOPE,
SHOULD CHARACTERIZE THE AMERICAN JUDICIAL PROCESS.  THERE HAS BEEN MUCH
WRITING ABOUT THE LAW AND LITTLE KNOWLEDGE AND LESS DIGESTION OF THE
FACTS.  IN THE NEW YORK CASE THE JUDGES, BOTH TRIAL AND APPELLATE, HAD
NOT YET EXAMINED THE BASIC MATERIAL WHEN THE CASE WAS BROUGHT HERE.  IN
THE DISTRICT OF COLUMBIA CASE, LITTLE MORE WAS DONE, AND WHAT WAS
ACCOMPLISHED IN THIS RESPECT WAS ONLY ON REQUIRED REMAND, WITH THE
WASHINGTON POST, ON THE EXCUSE THAT IT WAS TRYING TO PROTECT ITS SOURCE
OF INFORMATION, INITIALLY REFUSING TO REVEAL WHAT MATERIAL IT ACTUALLY
POSSESSED, AND WITH THE DISTRICT COURT FORCED TO MAKE ASSUMPTIONS AS TO
THAT POSSESSION. 

WITH SUCH RESPECT AS MAY BE DUE TO THE CONTRARY VIEW, THIS, IN MY
OPINION, IS NOT THE WAY TO TRY A LAWSUIT OF THIS MAGNITUDE AND ASSERTED
IMPORTANCE.  IT IS NOT THE WAY FOR FEDERAL COURTS TO ADJUDICATE, AND TO
BE REQUIRED TO ADJUDICATE, ISSUES THAT ALLEGEDLY CONCERN THE NATION'S
VITAL WELFARE.  THE COUNTRY WOULD BE NONE THE WORSE OFF WERE THE CASES
TRIED QUICKLY, TO BE SURE, BUT IN THE CUSTOMARY AND PROPERLY
DELIBERATIVE MANNER.  THE MOST RECENT OF THE MATERIAL, IT IS SAID,
DATES NO LATER THAN 1968, ALREADY ABOUT THREE YEARS AGO, AND THE TIMES
ITSELF TOOK THREE MONTHS TO FORMULATE ITS PLAN OF PROCEDURE AND, THUS,
DEPRIVED ITS PUBLIC FOR THAT PERIOD. 

THE FIRST AMENDMENT, AFTER ALL, IS ONLY ONE PART OF AN ENTIRE
CONSTITUTION.  ARTICLE II OF THE GREAT DOCUMENT VESTS IN THE EXECUTIVE
BRANCH PRIMARY POWER OVER THE CONDUCT OF FOREIGN AFFAIRS AND PLACES IN
THAT BRANCH THE RESPONSIBILITY FOR THE NATION'S SAFETY.  EACH PROVISION
OF THE CONSTITUTION IS IMPORTANT, AND I CANNOT SUBSCRIBE TO A DOCTRINE
OF UNLIMITED ABSOLUTISM FOR THE FIRST AMENDMENT AT THE COST OF
DOWNGRADING OTHER PROVISIONS.  FIRST AMENDMENT ABSOLUTISM HAS NEVER
COMMANDED A MAJORITY OF THIS COURT.  SEE, FOR EXAMPLE, NEAR V.
MINNESOTA, 283 U.S. 697, 708 (1931), AND SCHENCK V. UNITED STATES, 249
U.S. 47, 52 (1919).  WHAT IS NEEDED HERE IS A WEIGHING, UPON PROPERLY
DEVELOPED STANDARDS, OF THE BROAD RIGHT OF THE PRESS TO PRINT AND OF
THE VERY NARROW RIGHT OF THE GOVERNMENT TO PREVENT.  THE PARTIES HERE
ARE IN DISAGREEMENT AS TO WHAT THOSE STANDARDS SHOULD BE.  BUT EVEN THE
NEWSPAPERS CONCEDE THAT THERE ARE SITUATIONS WHERE RESTRAINT IS IN
ORDER AND IS CONSTITUTIONAL.  MR. JUSTICE HOLMES GAVE US A SUGGESTION
WHEN HE SAID IN SCHENCK, 

"IT IS A QUESTION OF PROXIMITY AND DEGREE.  WHEN A NATION IS AT WAR
MANY THINGS THAT MIGHT BE SAID IN TIME OF PEACE ARE SUCH A HINDRANCE TO
ITS EFFORTS THAT THEIR UTTERANCE WILL NOT BE ENDURED SO LONG AS MEN
FIGHT AND THAT NO COURT COULD REGARD THEM AS PROTECTED BY ANY
CONSTITUTIONAL RIGHT."  249 U.S.,AT 52. 

I THEREFORE WOULD REMAND THESE CASES TO BE DEVELOPED EXPEDITIOUSLY,
OF COURSE, BUT ON A SCHEDULE PERMITTING THE ORDERLY PRESENTATION OF
EVIDENCE FROM BOTH SIDES, WITH THE USE OF DISCOVERY, IF NECESSARY, AS
AUTHORIZED BY THE RULES, AND WITH THE PREPARATION OF BRIEFS, ORAL
ARGUMENT, AND COURT OPINIONS OF A QUALITY BETTER THAN HAS BEEN SEEN TO
THIS POINT.  IN MAKING THIS LAST STATEMENT, I CRITICIZE NO LAWYER OR
JUDGE.  I KNOW FROM PAST PERSONAL EXPERIENCE THE AGONY OF TIME PRESSURE
IN THE PREPARATION OF LITIGATION.  BUT THESE CASES AND THE ISSUES
INVOLVED AND THE COURTS, INCLUDING THIS ONE, DESERVE BETTER THAN HAS
BEEN PRODUCED SO FAR.     IT MAY WELL BE THAT IF THESE CASES WERE
ALLOWED TO DEVELOP AS THEY SHOULD BE DEVELOPED, AND TO BE TRIED AS
LAWYERS SHOULD TRY THEM AND AS COURTS SHOULD HEAR THEM, FREE OF
PRESSURE AND PANIC AND SENSATIONALISM, OTHER LIGHT WOULD BE SHED ON THE
SITUATION AND CONTRARY CONSIDERATIONS, FOR ME, MIGHT PREVAIL.  BUT THAT
IS NOT THE PRESENT POSTURE OF THE LITIGATION. 

THE COURT, HOWEVER, DECIDES THE CASES TODAY THE OTHER WAY.  I
THEREFORE ADD ONE FINAL COMMENT. 

I STRONGLY URGE, AND SINCERELY HOPE, THAT THESE TWO NEWSPAPERS WILL
BE FULLY AWARE OF THEIR ULTIMATE RESPONSIBILITIES TO THE UNITED STATES
OF AMERICA.  JUDGE WILKEY, DISSENTING IN THE DISTRICT OF COLUMBIA CASE,
AFTER A REVIEW OF ONLY THE AFFIDAVITS BEFORE HIS COURT (THE BASIC
PAPERS HAD NOT THEN BEEN MADE AVAILABLE BY EITHER PARTY), CONCLUDED
THAT THERE WERE A NUMBER OF EXAMPLES OF DOCUMENTS THAT, IF IN THE
POSSESSION OF THE POST, AND IF PUBLISHED, "COULD CLEARLY RESULT IN
GREAT HARM TO THE NATION," AND HE DEFINED "HARM" TO MEAN "THE DEATH OF
SOLDIERS, THE DESTRUCTION OF ALLIANCES, THE GREATLY INCREASED
DIFFICULTY OF NEGOTIATION WITH OUR ENEMIES, THE INABILITY OF OUR
DIPLOMATS TO NEGOTIATE . . . "  I, FOR ONE, HAVE NOW BEEN ABLE TO GIVE
AT LEAST SOME CURSORY STUDY NOT ONLY TO THE AFFIDAVITS, BUT TO THE
MATERIAL ITSELF.  I REGRET TO SAY THAT FROM THIS EXAMINATION I FEAR
THAT JUDGE WILKEY'S STATEMENTS HAVE POSSIBLE FOUNDATION.  I THEREFORE
SHARE HIS CONCERN.  I HOPE THAT DAMAGE HAS NOT ALREADY BEEN DONE.  IF,
HOWEVER, DAMAGE HAS BEEN DONE, AND IF, WITH THE COURT'S ACTION TODAY,
THESE NEWSPAPERS PROCEED TO PUBLISH THE CRITICAL DOCUMENTS AND THERE
RESULTS THEREFROM "THE DEATH OF SOLDIERS, THE DESTRUCTION OF ALLIANCES,
THE GREATLY INCREASED DIFFICULTY OF NEGOTIATION WITH OUR ENEMIES, THE
INABILITY OF OUR DIPLOMATS TO NEGOTIATE," TO WHICH LIST I MIGHT ADD THE
FACTORS OF PROLONGATION OF THE WAR AND OF FURTHER DELAY IN THE FREEING
OF UNITED STATES PRISONERS, THEN THE NATION'S PEOPLE WILL KNOW WHERE
THE RESPONSIBILITY FOR THESE SAD CONSEQUENCES RESTS. 

ALEXANDER M. BICKEL ARGUED THE CAUSE FOR PETITIONER IN NO. 1873. 
WITH HIM ON THE BRIEF WERE WILLIAM E. HEGARTY AND LAWRENCE J. MCKAY. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES IN
BOTH CASES.  WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL
MARDIAN AND DANIEL M. FRIEDMAN. 

WILLIAM R. GLENDON ARGUED THE CAUSE FOR RESPONDENTS IN NO. 1885. 
WITH HIM ON THE BRIEF WERE ROGER A. CLARK, ANTHONY F. ESSAYE, LEO P.
LARKIN, JR., AND STANLEY GODOFSKY. 

BRIEFS OF AMICI CURIAE WERE FILED BY BOB ECKHARDT AND THOMAS I.
EMERSON FOR TWENTY-SEVEN MEMBERS OF CONGRESS; BY NORMAN DORSEN, MELVIN
L. WULF, BURT NEUBORNE, BRUCE J. ENNIS, OSMOND K. FRAENKEL, AND MARVIN
M. KARPATKIN FOR THE AMERICAN CIVIL LIBERTIES UNION; AND BY VICTOR
RABINOWITZ FOR THE NATIONAL EMERGENCY CIVIL LIBERTIES COMMITTEE. 
DELETE
..END :










UNITED STATES V. HARRIS, 403 U.S. 573 


       UNITED STATES V. HARRIS

        CERTIORARI TO THE UNITED STAES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 30.  ARGUED MARCH 23, 1971-- DECIDED JUNE 28, 1971 


RESPONDENT WAS CONVICTED OF POSSESSING NONTAXPAID LIQUOR IN VIOLATION
OF 27 U.S.C. 5205(A)(2).  THE COURT OF APPEALS REVERSED ON THE GROUND
THAT THE FEDERAL TAX INVESTIGATOR'S AFFIDAVIT SUPPORTING THE SEARCH
WARRANT, THE EXECUTION OF WHICH RESULTED IN THE DISCOVERY OF ILLICIT
LIQUOR, WAS INSUFFICIENT TO ESTABLISH PROBABLE CAUSE.  THE AFFIDAVIT
STATED THAT:  RESPONDENT HAD A REPUTATION WITH THE INVESTIGATOR FOR
OVER FOUR YEARS AS BEING A TRAFFICKER IN NONTAXPAID DISTILLED SPIRITS;
DURING THAT TIME THE LOCAL CONSTABLE HAD LOCATED ILLICIT WHISKEY IN AN
ABANDONED HOUSE UNDER RESPONDENT'S CONTROL; ON THE DATE OF THE
AFFIDAVIT THE AFFIANT HAD RECEIVED SWORN ORAL INFORMATION FROM A PERSON
WHOM THE AFFIANT FOUND TO BE A PRUDENT PERSON, AND WHO FEARED FOR HIS
LIFE SHOULD HIS NAME BE REVEALED, THAT THE INFORMANT HAD PURCHASED
ILLICIT WHISKEY FROM THE RESIDENCE DESCRIBED, FOR A PERIOD EXCEEDING
TWO YEARS, MOST RECENTLY WITHIN TWO WEEKS; THAT THE INFORMANT ASSERTED
HE KNEW OF ANOTHER PERSON WHO BOUGHT SUCH WHISKEY FROM THE HOUSE WITHIN
TWO DAYS; THAT HE HAD PERSONAL KNOWLEDGE THAT SUCH WHISKEY WAS CONSUMED
IN A CERTAIN OUTBUILDING; AND THAT HE HAD SEEN RESPONDENT GO TO ANOTHER
NEARBY OUTBUILDING TO OBTAIN WHISKEY FOR OTHER PERSONS.  THE COURT OF
APPEALS RELIED ON AGUILAR V. TEXAS, 378 U.S. 108, IN STRESSING THAT
AFFIANT HAD NEVER ALLEGED THAT THE INFORMANT WAS TRUTHFUL, BUT ONLY
PRUDENT, AND ON SPINELLI V. UNITED STATES, 393 U.S. 410, IN GIVING NO
WEIGHT TO AFFIANT'S ASSERTION CONCERNING RESPONDENT'S REPUTATION. 
HELD:  THE JUDGMENT IS REVERSED.  PP. 577-585. 

412 F.2D 796, REVERSED. 

THE CHIEF JUSTICE, JOINED BY MR. JUSTICE BLACK, MR. JUSTICE
BLACKMUN, AND MR. JUSTICE STEWART (AS TO THE FIRST SENTENCE OF ITEM 1)
CONCLUDED THAT: 

1.  THE AFFIDAVIT IN THIS CASE, BASED ON A TIP SIMILAR TO THE ONE
HELD SUFFICIENT IN JONES V. UNITED STATES, 362 U.S. 257 (WHICH WAS
APPROVED IN AGUILAR, SUPRA), CONTAINS AN AMPLE FACTUAL FOUNDATION FOR
BELIEVING THE INFORMANT WHICH, WHEN TAKEN IN CONJUNCTION WITH THE
AFFIANT'S KNOWLEDGE OF RESPONDENT'S BACKGROUND, AFFORDED A BASIS UPON
WHICH A MAGISTRATE COULD REASONABLE ISSUE A WARRANT.  BOTH THE AFFIANT
HERE AND THE ONE IN JONES (CONTRARY TO THE SITUATION IN SPONELLI,
SUPRA) PURPORT TO RELATE AN UNIDENTIFIED INFORMANT'S PERSONAL
OBSERVATIONS AND RECITE PRIOR EVENTS WITHIN HIS KNOWLEDGE.  WHILE THE
AFFIDAVIT HERE, UNLIKE THE JONES AFFIDAVIT, DID NOT AVER THAT THE
INFORMANT HAD PREVIOUSLY GIVEN "CORRECT INFORMATION," AN AVERMENT OF
PREVIOUS RELIABILITY IS NOT ESSENTIAL WHEN SUPPORTED, AS HERE, BY OTHER
INFORMATION; AND SPINELLI IS NOT TO BE READ AS PRECLUDING A
MAGISTRATE'S RELYING ON AN OFFICER'S KNOWLEDGE OF A SUSPECT'S
REPUTATION.  PP. 577-583. 

THE CHIEF JUSTICE, JOINED BY MR. JUSTICE BLACK, MR. JUSTICE WHITE,
AND MR. JUSTICE BLACKMUN, CONCLUDED THAT: 

2.  THE FACT THAT THE INFORMANT MADE A STATEMENT AGAINST HIS OWN
PENAL INTEREST WHEN HE ADMITTED HIS ILLICIT LIQUOR PURCHASES PROVIDES
AN ADDITIONAL BASIS FOR CREDITING HIS TIP.  PP. 583-584. 

BURGER, C.J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION, IN WHICH BLACK AND BALCKMUN, JJ., JOINED, AND IN PART I OF
WHICH STEWART, J., AND IN PART III OF WHICH WHITE, J., JOINED.  BLACK,
J., FILED A CONCURRING STATEMENT, POST, P. 585.  BLACKMUN, J., FILED A
CONCURRING OPINION, POST, P. 585.  HARLAN, J., FILED A DISSENTING
OPINION, IN WHICH DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED, POST, P.
586. 

MR. CHIEF BUSTICE BURGER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE BLACK AND MR. JUSTICE BLACKMUN JOIN, AND
IN PART I OF WHICH MR. JUSTICE STEWART JOINS AND IN PART III OF WHICH
MR. JUSTICE WHITE JOINS. 

WE GRANTED CERTIORARI IN THIS CASE TO CONSIDER THE RECURRING
QUESTION OF WHAT SHOWING IS CONSTITUTIONALLY NECESSARY TO SATISFY A
MAGISTRATE THAT THERE IS A SUBSTANTIAL BASIS FOR CREDITING THE REPORT
OF AN INFORMANT KNOWN TO THE POLICE, BUT NOT IDENTIFIED TO THE
MAGISTRATE, WHO PURPORTS TO RELATE HIS PERSONAL KNOWLEDGE OF CRIMINAL
ACTIVITY. 

IN 1967 A FEDERAL TAX INVESTIGATOR AND A LOCAL CONSTABLE ENTERED THE
PREMISES OF RESPONDENT HARRIS, PURSUANT TO A SEARCH WARRANT ISSUED BY A
FEDERAL MAGISTRATE, AND SEIZED JUGS OF WHISKEY UPON WHICH THE FEDERAL
TAX HAD NOT BEEN PAID.  THE WARRANT HAD BEEN ISSUED SOLELY ON THE BASIS
OF THE INVESTIGATOR'S AFFIDAVIT, WHICH RECITED THE FOLLOWING: 

"ROOSEVELT HARRIS HAS HAD A REPUTATION WITH ME FOR OVER 4 YEARS AS
BEING A TRAFFICKER OF NONTAXPAID DISTILLED SPIRITS, AND OVER THIS
PERIOD I HAVE RECEIVED NUMEROUS INFORMATION (SIC) FROM ALL TYPES OF
PERSONS AS TO HIS ACTIVITIES.  CONSTABLE HOWARD JOHNSON LOCATED A
SIZEABLE STASH OF ILLICIT WHISKEY IN AN ABANDONED HOUSE UNDER HARRIS'
CONTROL DURING THIS PERIOD OF TIME.  THIS DATE, I HAVE RECEIVED
INFORMATION FROM A PERSON WHO FEARS FOR THEIR (SIC) LIFE AND PROPERTY
SHOULD THEIR NAME BE REVEALED.  I HAVE INTERVIEWED THIS PERSON, FOUND
THIS PERSON TO BE A PRUDENT PERSON, AND HAVE, UNDER A SWORN VERBAL
STATEMENT, GAINED THE FOLLOWING INFORMATION:  THIS PERSON HAS PERSONAL
KNOWLEDGE OF AND HAS PURCHASED ILLICIT WHISKEY FROM WITHIN THE
RESIDENCE DESCRIBED, FOR A PERIOD OF MORE THAN 2 YEARS, AND MOST
RECENTLY WITHIN THE PAST 2 WEEKS, HAS KNOWLEDGE OF A PERSON WHO
PURCHASED ILLICIT WHISKEY WITHIN THE PAST TWO DAYS FROM THE HOUSE, HAS
PERSONAL KNOWLEDGE THAT THE ILLICIT WHISKEY IS CONSUMED BY PURCHASERS
IN THE OUTBUILDING KNOWN AS AND UTILIZED AS THE 'DANCE HALL,' AND HAS
SEEN ROOSEVELT HARRIS GO TO THE OTHER OUTBUILDING, LOCATED ABOUT 50
YARDS FROM THE RESIDENCE, ON NUMEROUS OCCASIONS, TO OBTAIN THE WHISKEY
FOR THIS PERSON AND OTHER PERSONS."  ##HC576 

RESPONDENT WAS SUBSEQUENTLY CHARGED WITH POSSESSION OF NONTAXPAID
LIQUOR, IN VIOLATION OF 26 U.S.C. 5205(A)(2).  HIS PRETRIAL MOTION TO
SUPPRESS THE SEIZED EVIDENCE ON THE GROUND THAT THE AFFIDAVIT WAS
INSUFFICIENT TO ESTABLISH PROBABLE CAUSE WAS OVERRULED, AND HE WAS
CONVICTED AFTER A JURY TRIAL AND SENTENCED TO TWO YEARS' IMPRISONMENT. 
THE COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED THE CONVICTION,
HOLDING THAT THE INFORMATION IN THE AFFIDAVIT WAS INSUFFICIENT TO
ENABLE THE MAGISTRATE TO ASSESS THE INFORMANT'S RELIABILITY AND
TRUSTWORTHINESS.  412 F.2D 796, 797 (1969). 

THE COURT OF APPEALS RELIED ON AGUILAR V. TEXAS, 378 U.S. 108
(1964), IN WHICH WE HELD THAT AN AFFIDAVIT BASED SOLELY ON THE HEARSAY
REPORT OF AN UNIDENTIFIED INFORMANT MUST SET FORTH "SOME OF THE
UNDERLYING CIRCUMSTANCES FROM WHICH THE OFFICER CONCLUDED THAT THE
INFORMANT . . . WAS 'CREDIBLE' OR HIS INFORMATION 'RELIABLE.'"  ID., AT
114.  IT CONCLUDED THAT THE AFFIDAVIT WAS INSUFFICIENT BECAUSE NO
INFORMATION WAS PRESENTED TO ENABLE THE MAGISTRATE TO EVALUATE THE
INFORMANT'S RELIABILITY OR TRUSTWORTHINESS.  THE COURT NOTED THE
ABSENCE OF ANY ALLEGATION THAT THE INFORMANT WAS A "TRUTHFUL" PERSON,
BUT ONLY AN ALLEGATION THAT THE INFORMANT WAS "PRUDENT."  HAVING FOUND
THE INFORMANT'S TIP INADEQUATE UNDER AGUILAR, THE COURT OF APPEALS,
RELYING ON SPINELLI V. UNITED STATES, 393 U.S. 410 (1969), LOOKED TO
THE REMAINING ALLEGATIONS OF THE AFFIDAVIT TO DETERMINE WHETHER THEY
PROVIDED INDEPENDENT CORROBORATION OF THE INFORMANT.  THE COURT OF
APPEALS HELD THAT THE CONSTABLE'S PRIOR DISCOVERY OF A CACHE ON
RESPONDENT'S PROPERTY WITHIN THE PREVIOUS FOUR YEARS WAS TOO REMOTE,
AND, CITING CERTAIN LANGUAGE FROM SPINELLI, IT GAVE NO WEIGHT WHATEVER
TO THE ASSERTION THAT RESPONDENT HAD A GENERAL REPUTATION KNOWN TO THE
OFFICER AS A TRAFFICKER IN ILLEGAL WHISKEY. 

FOR THE REASONS STATED BELOW, REVERSE THE JUDGMENT OF THE COURT OF
APPEALS AND REINSTATE THE JUDGMENT OF CONVICTION. 

        I 

IN EVALUATING THE SHOWING OF PROBABLE CAUSE NECESSARY TO SUPPORT A
SEARCH WARRANT, AGAINST THE FOURTH AMENDMENT'S PROHIBITION OF
UNREASONABLE SEARCHES AND SEIZURES, WE WOULD DO WELL TO HEED THE SOUND
ADMONITION OF UNITED STATES V. VENTRESCA, 380 U.S. 102 (1965): 

"(THE FOURTH AMENDMENT'S COMMANDS, LIKE ALL CONSTITUTIONAL
REQUIREMENTS, ARE PRACTICAL AND NOT ABSTRACT.  IF THE TEACHINGS OF THE
COURT'S CASES ARE TO BE FOLLOWED AND THE CONSTITUTIONAL POLICY SERVED,
AFFIDAVITS FOR SEARCH WARRANTS, SUCH AS THE ONE INVOLVED HERE, MUST BE
TESTED AND INTERPRETED BY MAGISTRATES AND COURTS IN A COMMONSENSE AND
REALISTIC FASHION.  THEY ARE NORMALLY DRAFTED BY NONLAWYERS IN THE
MIDST AND HASTE OF A CRIMINAL INVESTIGATION.  TECHNICAL REQUIREMENTS OF
ELABORATE SPECIFICITY ONCE EXACTED UNDER COMMON LAW PLEADINGS HAVE NO
PROPER PLACE IN THIS AREA.  A GRUDGING OR NEGATIVE ATTITUDE BY
REVIEWING COURTS TOWARD WARRANTS WILL TEND TO DISCOURAGE POLICE
OFFICERS FROM SUBMITTING THEIR EVIDENCE TO A JUDICIAL OFFICER BEFORE
ACTING."  380 U.S.,AT 108. 

AGUILAR IN NO DEPARTED FROM THESE SOUND PRINCIPLES.  THERE A WARRANT
WAS ISSUED ON NOTHING MORE THAN AN AFFIDAVIT RECITING: 

"AFFIANTS HAVE RECEVIED RELIABLE INFORMATION FROM A CREDIBLE PERSON
AND DO BELIEVE THAT HEROIN, MARIJUANA, BARBITURATES AND OTHER NARCOTICS
AND NARCOTIC PARAPHERNALIA ARE BEING KEPT AT THE ABOVE DESCRIBED
PREMISES FOR THE PURPOSE OF SALE AND USE CONTRARY TO THE PROVISIONS OF
THE LAW."  378 U.S.,AT 109. 

THE AFFIDAVIT, THEREFORE, CONTAINED NONE OF THE UNDERLYING "FACTS OR
CIRCUMSTANCES" FROM WHICH THE MAGISTRATE COULD FIND PROBABLE CAUSE. 
NATHANSON V. UNITED STATES, 290 U.S. 41, 47 (1933).  ON THE CONTRARY,
THE AFFIDAVIT WAS A "MERE AFFIRMATION OF SUSPICION AND BELIEF"
(NATHANSON, SUPRA, AT 46) AND GAINED NOTHING MORE BY THE INCORPORATION
BY REFERENCE ON THE INFORMANT'S UNSUPPORTED BELIEF.  SEE AGUILAR,
SUPRA, AT 114 N. 4. 

SIGNIFICANTLY, THE COURT IN AUGUILAR CITED WITH APPROVAL THE
AFFIDAVIT UPHELD IN JONES V. UNITED STATES, 362 U.S. 257 (1960).  THAT
AFFIDAVIT READ IN PERTINENT PART AS FOLLOWS: 

"IN THE LATE AFTERNOON OF TUESDAY, AUGUST 20, 1957, I, DETECTIVE
THOMAS DIDONE, JR., RECEIVED INFORMATION THE CECIL JONES AND EARLINE
RICHARDSON WERE INVOLVED IN THE ILLICIT NARCOTIC TRAFFIC AND THAT THEY
KEPT A READY SUPPLY OF HEROIN ON HAND IN THE ABOVE MENTIONED
APARTMENT.  THE SOURCE OF INFORMATION ALSO RELATES THAT THE TWO
AFOREMENTIONED PERSONS KEPT THESE SAME NARCOTICS EITHER ON THEIR
PERSON, UNDER A PILLOW, ON A DRESSER OR ON A WINDOW LEDGE IN SAID
APARTMENT.  THE SOURCE OF INFORMATION GOES ON TO RELATE THAT ON MANY
OCCASIONS THE SOURCE OF INFORMATION HAS GONE TO SAID APARTMENT AND
PURCHASED NARCOTIC DRUGS FROM THE ABOVE MENTIONED PERSONS AND THAT THE
NARCOTICS WERE SECREATED (SIC) IN THE ABOVE MENTIONED PLACES.  THE LAST
TIME BEING AUGUST 20, 1957."  ID., AT 267-268, N. 2. 

THE SUBSTANCE OF THE TIP, HELD SUFFICIENT IN JONES, CLOSELY
PARALLELS THAT HERE HELD INSUFFICIENT BY THE COURT OF APPEALS.  BOTH
RECOUNT PERSONAL AND RECENT /1/  OBSERVATIONS BY AN UNIDENTIFIED
INFORMANT OF CRIMINAL ACTIVITY, FACTORS SHOWING THAT THE INFORMATION
HAD BEEN GAINED IN A RELIABLE MANNER, AND SERVING TO DISTINGUISH BOTH
TIPS FROM THAT HELD INSUFFICIENT IN SPINELLI, SUPRA, IN WHICH THE
AFFIDAVIT FAILED TO EXPLAIN HOW THE INFORMANT CAME BY HIS INFORMATION. 
SPINELLI, SUPRA, AT 416. 

THE COURT OF APPEALS SEEMS TO HAVE BELIEVED, HOWEVER, THAT THERE WAS
NO SUBSTANTIAL BASIS FOR BELIEVING THAT THE TIP WAS TRUTHFUL.  INDEED,
IT EMPHASIZED THAT THE AFFIANT HAD NEVER ALLEGED THAT THE INFORMANT WAS
TRUTHFUL, BUT ONLY "PRUDENT," A WORD THAT "SIGNIFIES THAT HE IS
CIRCUMSPECT IN THE CONDUCT OF HIS AFFAIRS, BUT REVEALS NOTHING ABOUT
HIS CREDIBILITY."  412 F.2D,AT 797-798.  SUCH A CONSTRUCTION OF THE
AFFIDAVIT IS THE VERY SORT OF HYPERTECHNICALITY-- THE "ELABORATE
SPECIFICITY ONCE EXACTED UNDER COMMON LAW"-- CONDEMNED BY THIS COURT IN
VENTRESCA.  A POLICEMAN'S AFFIDAVIT "SHOULD NOT BE JUDGED AS AN ENTRY
IN AN ESSAY CONTEST," SPINELLI, SUPRA, AT 438 (FORTAS, J., DISSENTING),
BUT, RATHER MUST BE JUDGED BY THE FACTS IT CONTAINS.  WHILE A BARE
STATEMENT BY AN AFFIANT THAT HE BELIEVED THE INFORMANT TO BE TRUTHFUL
WOULD NOT, IN ITSELF, PROVIDE A FACTUAL BASIS FOR CREDITING THE REPORT
OF AN UNNAMED INFORMANT, WE CONCLUDE THAT THE AFFIDAVIT IN THE PRESENT
CASE CONTAINS AN AMPLE FACTUAL BASIS FOR BELIEVING THE INFORMANT WHICH,
WHEN COUPLED WITH AFFIANT'S OWN KNOWLEDGE OF THE RESPONDENT'S
BACKGROUND, AFFORDED A BASIS UPON WHICH A MAGISTRATE COULD EASILY ISSUE
A WARRANT.  THE ACCUSATION BY THE INFORMANT WAS PLAINLY A DECLARATION
AGAINST INTEREST SINCE IT COULD READILY WARRANT A PROSECUTION AND COULD
SUSTAIN A CONVICTION AGAINST THE INFORMANT HIMSELF.  THIS WILL BE
DEVELOPED IN PART III. 

        II 

IN DETERMINING WHAT QUANTUM OF INFORMATION IS NECESSARY TO SUPPORT A
BELIEF THAT AN UNIDENTIFIED INFORMANT'S INFORMATION IS TRUTHFUL, JONES
V. UNITED STATES, SUPRA, IS A SUITABLE BENCHMARK.  THE AFFIDAVIT IN
JONES RECOUNTED THE TIP OF AN ANONYMOUS INFORMANT, WHO CLAIMED TO HAVE
RECENTLY PURCHASED NARCOTICS FROM THE DEFENDANT AT HIS APARTMENT, AND
DESCRIBED THE APARTMENT IN SOME DETAIL.  AFTER RECITING THE SUBSTANCE
OF THE TIP THE AFFIANT SWORE AS FOLLOWS: 

"BOTH THE AFOREMENTIONED PERSONS ARE FAMILIAR TO THE UNDERSIGNED AND
OTHER MEMBERS OF THE NARCOTIC SQUAD.  BOTH HAVE ADMITTED TO THE USE OF
NARCOTIC DRUGS AND DISPLAY NEEDLE MARKS AS EVIDENCE OF SAME. 

     "THIS SAME INFORMATION, REGARDING THE ILLICIT NARCOTIC
TRAFFIC,

  CONDUCTED BY (THE DEFENDANT) HAS BEEN GIVEN TO THE UNDERSIGNED

  AND TO OTHER OFFICERS OF THE NARCOTIC SQUAD BY OTHER SOURCES OF

  INFORMATION. 

      "BECAUSE THE SOURCE OF INFORMATION MENTIONED IN THE OPENING

  PARAGRAPH HAS GIVEN INFORMATION TO THE UNDERSIGNED ON PREVIOUS

  OCCASION AND WHICH WAS CORRECT, AND BECAUSE THIS SAME INFORMATION

  IS GIVEN BY OTHER SOURCES DOES BELIEVE THAT THERE IS NOW ILLICIT

  NARCOTIC DRUGS BEING SECREATED (SIC) IN THE ABOVE APARTMENT.  . .

  "  ID., AT 268 N.2. 

MR. JUSTICE FRANKFURTER, WRITING FOR THE COURT IN JONES, UPHELD THE
WARRANT.  ALTHOUGH THE INFORMATION IN THE AFFIDAVIT WAS ALMOST ENTIRELY
HEARSAY, HE CONCLUDED THAT THERE WAS "SUBSTANTIAL BASIS" FOR CREDITING
THE HEARSAY.  THE INFORMANT HAD PREVIOUSLY GIVEN ACCURATE INFORMATION;
HIS STORY WAS CORROBORATED BY "OTHER SOURCES" (ALBEIT UNNAMED);
ADDITIONALLY THE DEFENDANT WAS KNOWN TO THE POLICE AS A USER OF
NARCOTICS.  JUSTICE FRANKFURTER EMPHASIZED THE LAST TWO OF THESE
FACTORS: 

"CORROBORATION THROUGH OTHER SOURCES OF INFORMATION REDUCED THE
CHANCES OF A RECKLESS OR PREVARICATING TALE; THAT PETITIONER WAS A
KNOWN USER OF NARCOTICS MADE THE CHARGE AGAINST HIM MUCH LESS SUBJECT
TO SCEPTICISM THAN WOULD BE SUCH A CHARGE AGAINST ONE WITHOUT SUCH A
HISTORY."  ID., AT 271. 

AGUILAR CANNOT BE READ AS QUESTIONING THE "SUBSTANTIAL BASIS"
APPROACH OF JONES.  AND UNLESS JONES HAS SOMEHOW, WITHOUT
ACKNOWLEDGMENT, BEEN OVERRULED BY SPINELLI, THERE WOULD BE NO BASIS
WHATEVER FOR A HOLDING THAT THE AFFIDAVIT IN THE PRESENT CASE IS
WANTING.  THE AFFIDAVIT IN THE PRESENT CASE, LIKE THAT IN JONES,
CONTAINED A SUBSTANTIAL BASIS FOR CREDITING THE HEARSAY.  BOTH
AFFIDAVITS PURPORT TO RELATE THE PERSONAL OBSERVATIONS OF THE INFORMANT
- A FACTOR THAT CLEARLY DISTINGUISHES SPINELLI, IN WHICH THE AFFIDAVIT
FAILED TO EXPLAIN HOW THE INFORMANT CAME BY HIS INFORMATION.  BOTH
RECITE PRIOR EVENTS WITHIN THE AFFIANT'S OWN KNOWLEDGE-- THE NEEDLE
MARKS IN JONES AND CONSTABLE JOHNSON'S PRIOR SEIZURE IN THE PRESENT
CASE-- INDICATING THAT THE DEFENDANT HAD PREVIOUSLY TRAFFICKED IN
CONTRABAND.  THESE PRIOR EVENTS AGAIN DISTINGUISH SPINELLI, IN WHICH NO
FACTS WERE SUPPLIED TO SUPPORT THE ASSERTION THAT SPINELLI WAS "KNOWN .
. . AS A BOOKMAKER, AN ASSOCIATE OF BOOKMAKERS, A GAMBLER, AND AN
ASSOCIATE OF GAMBLERS."  SPINELLI, SUPRA, AT 422. 

TO BE SURE THERE IS NO AVERMENT IN THE PRESENT AFFIDAVIT, AS THERE
WAS IN JONES, THAT THE INFORMANT HAD PREVIOUSLY GIVEN "CORRECT
INFORMATION," BUT THIS COURT IN JONES NEVER SUGGESTED THAT AN AVERMENT
OF PREVIOUS RELIABILITY WAS NECESSARY.  INDEED, WHEN THE INQUIRY IS, AS
IT ALWAYS MUST BE IN DETERMINING PROBABLE CAUSE, WHETHER THE
INFORMANT'S PRESENT INFORMATION IS TRUTHFUL OR RELIABLE, IT IS CURIOUS,
AT THE VERY LEAST, THAT MR. JUSTICE HARLAN WOULD PLACE SUCH STRESS ON
VAGUE ATTRIBUTES OF "GENERAL BACKGROUND, EMPLOYMENT . . . POSITION IN
THE COMMUNITY . . . "  (POST, AT 600.)  WERE IT NOT FOR SOME LANGUAGE
IN SPINELLI, IT IS DOUBTFUL THAT ANY OF THESE REPUTATION ATTRIBUTES OF
THE INFORMANT COULD BE SAID TO REVEAL ANY MORE ABOUT HIS PRESENT
RELIABILITY THAN IS AFFORDED BY THE SUPPORT OF THE OFFICER'S PERSONAL
KNOWLEDGE AS ENTITLED TO NOT WEIGHT THE "BALD AND UNILLUMINATING"
ASSERTION THAT THE SUSPECT WAS KNOWN TO THE AFFIANT AS A GAMBLER.  393
U.S.,AT 414.  FOR THIS PROPOSITION THE COURT RELIED ON NATHANSON V.
UNITED STATES, 290 U.S. 41 (1933).  BUT A CAREFUL EXAMINATION OF
NATHANSON SHOWS THAT THE SPINELLI OPINION DID NOT FULLY REFLECT THE
CRITICAL POINTS OF WHAT NATHANSON HELD SINCE IT WAS LIMITED TO HOLDING
THAT REPUTATION, STANDING ALONE, WAS INSUFFICIENT; IT SURELY DID NOT
HOLD IT IRRELEVANT WHEN SUPPORTED BY OTHER INFORMATION.  THIS READING
OF NATHANSON IS CONFIRMED BY BRINEGAR V. UNITED STATES, 338 U.S. 160
(1949), IN WHICH THE COURT, IN SUSTAINING A FINDING OF PROBABLE CAUSE
FOR A WARRANTLESS ARREST, HELD PROPER THE ASSERTION OF THE SEARCHING
OFFICER THAT HE HAD PREVIOUSLY ARRESTED THE DEFENDANT FOR A SIMILAR
OFFENSE AND THAT THE DEFENDANT HAD A REPUTATION FOR HAULING LIQUOR. 
SUCH EVIDENCE WOULD RARELY BE ADMISSIBLE AT TRIAL, BUT THE COURT TOOK
PAINS TO EMPHASIZE THE VERY DIFFERENT FUNCTIONS OF CRIMINAL TRIALS AND
PRELIMINARY DETERMINATIONS OF PROBABLE CAUSE.  TRIALS ARE NECESSARILY
SOURROUNDED WITH EVIDENTIARY RULES "DEVELOPED TO SAFEGUARD MEN FROM
DUBIOUS AND UNJUST CONVICTIONS."  ID., AT 174.  BUT BEFORE THE TRIAL WE
DEAL ONLY WITH PROBABILITIES THAT "ARE NOT TECHNICAL; THEY ARE THE
FACTUAL AND PRACTICAL CONSIDERATIONS OF EVERYDAY LIFE ON WHICH
REASONABLE AND PRUDENT MEN, NOT LEGAL TECHNICALS, ACT."  BRINEGAR,
SUPRA, AT 175. 

WE CANNOT CONCLUDE THAT A POLICEMAN'S KNOWLEDGE OF A SUSPECT'S
REPUTATION-- SOMETHING THAT POLICEMEN FREQUENTLY KNOW AND A FACTOR THAT
IMPRESSED SUCH A "LEGAL TECHNICAN" AS MR. JUSTICE FRANKFURTER-- IS NOT
A "PRACTICAL CONSIDERATION OF EVERYDAY LIFE" UPON WHICH AN OFFICER (OR
A MAGISTRATE) MAY PROPERLY RELY IN ASSESSING THE RELIABILITY OF AN
INFORMANT'S TIP.  TO THE EXTENT THAT SPINELLI PROHIBITS THE USE OF SUCH
PROBATIVE INFORMATION, IT HAS NO SUPPORT IN OUR PRIOR CASES, LOGIC, OR
EXPERIENCE AND WE DECLINE TO APPLY IT TO PRECLUDE A MAGISTRATE FROM
RELYING ON A LAW ENFORCEMENT OFFICER'S KNOWLEDGE OF A SUSPECT'S
REPUTATION. 

        III 

QUITE APART FROM THE AFFIANT'S OWN KNOWLEDGE OF RESPONDENT'S
ACTIVITIES, THERE WAS AN ADDITIONAL REASON FOR CREDITING THE
INFORMANT'S TIP.  HERE THE WARRANT'S AFFIDAVIT RECITED EXTRAJUDICIAL
STATEMENTS OF A DECLARANT, WHO FEARED FOR HIS LIFE AND SAFETY IF HIS
IDENTIFY WAS REVEALED, THAT OVER THE PAST TWO YEARS HE HAD MANY TIMES
AND RECENTLY PURCHASED "ILLICIT WHISKEY."  THESE STATEMENTS WERE
AGAINST THE INFORMANT'S PENAL INTEREST, FOR HE THEREBY ADMITTED MAJOR
ELEMENTS OF AN OFFENSE UNDER THE INTERNAL REVENUE CODE, PROSCRIBES THE
SALE, PURCHASE, OR POSSESSION OF UNSTAMPED LIQUOR. 

COMMON SENSE IN THE IMPORTANT DAILY AFFAIRS OF LIFE WOULD INDUCE A
PRUDENT AND DISINTERESTED OBSERVER TO CREDIT THESE STATEMENTS.  PEOPLE
DO NOT LIGHTLY ADMIT A CRIME AND PLACE CRITICAL EVIDENCE IN THE HANDS
OF THE POLICE IN THE FORM OF THEIR OWN ADMISSIONS.  ADMISSIONS OF
CRIME, LIKE ADMISSIONS AGAINST PROPRIETARY INTERESTS, CARRY THEIR OWN
INDICIA OF CREDIBILITY-- SUFFICIENT AT LEAST TO SUPPORT A FINDING OF
PROBABLE CAUSE TO SEARCH.  THAT THE INFORMANT MAY BE PAID OR PROMISED A
"BREAK" DOES NOT ELIMINATE THE RESIDUAL RISK AND OPPROBRIUM OF HAVING
ADMITTED CRIMINAL CONDUCT.  CONCEDEDLY ADMISSIONS OF CRIME DO NOT
ALWAYS LEND CREDIBILITY TO CONTEMPORANEOUS OR LATER ACCUSATIONS OF
ANOTHER.  BUT HERE THE INFORMANT'S ADMISSION THAT OVER A LONG PERIOD
AND CURRENTLY HE HAD BEEN BUYING ILLICIT LIQUOR ON CERTAIN PREMISES,
ITSELF AND WITHOUT MORE, IMPLICATED THAT PROPERTY AND FURNISHED
PROBABLE CAUSE TO SEARCH. 

IT MAY BE THAT THIS INFORMANT'S OUT-OF-COURT DECLARATIONS WOULD NOT
BE ADMISSIBLE AT RESPONDENT'S TRIAL UNDER DONNELLY V. UNITED STATES,
228 U.S. 243 (1913), OR UNDER BRUTON V. UNITED STATES, 391 U.S. 123
(1968).  BUT DONNELLY'S IMPLICATION THAT STATEMENTS AGAINST PENAL
INTEREST ARE WITHOUT VALUE AND PER SE INADMISSIBLE HAS BEEN WIDELY
CRITICIZED; SEE THE DISSENTING OPINION OF MR. JUSTICE HOLMES IN
DONNELLY, SUPRA, AT 277; 5 J.WIGMORE, EVIDENCE 1477 (2D ED. 1940), AND
HAS BEEN PARTIALLY REJECTED IN RULE 804 OF THE PROPOSED RULES OF
EVIDENCE FOR THE DISTRICT COURTS AND MAGISTRATES.  MORE IMPORTANT, THE
ISSUE IN WARRANT PROCEEDINGS IS NOT GUILT BEYOND REASONABLE DOUBT BUT
PROBABLE CAUSE FOR BELIEVING THE OCCURRENCE OF A CRIME AND THE
SECRETING OF EVIDENCE IN SPECIFIC PREMISES.  SEE BRINEGAR V. UNITED
STATES, SUPRA, AT 173.  WHETHER OR NOT DONNELLY IS TO SURVIVE AS A RULE
OF EVIDENCE IN FEDERAL TRIALS, IT SHOULD NOT BE EXTENDED TO WARRANT
PROCEEDINGS TO PREVENT MAGISTRATES FROM CREDITING, IN ALL
CIRCUMSTANCES, STATEMENTS OF A DECLARANT CONTAINING ADMISSIONS OF
CRIMINAL CONDUCT.  AS FOR BRUTON, THAT CASE RESTED ON THE CONFRONTATION
CLAUSE OF THE SIXTH AMENDMENT WHICH SEEMS INAPPOSITE TO EX PARTE SEARCH
WARRANT PROCEEDINGS UNDER THE FOURTH AMENDMENT. 

IT WILL NOT DO TO SAY THAT WARRANTS MAY NOT ISSUE ON UNCORROBORATED
HEARSAY.  THIS ONLY AVOIDS THE ISSUE OF WHETHER THERE IS REASON FOR
CREDITING THE OUT-OF-COURT STATEMENT.  NOR IS IT ESPECIALLY SIGNIFICANT
THAT NEITHER THE NAME NOR THE PERSON OF THE INFORMANT WAS PRODUCED
BEFORE THE MAGISTRATE.  THE POLICE THEMSELVES ALMOST CERTAINLY KNEW HIS
NAME, THE TRUTH OF THE AFFIDAVIT IS NOT IN ISSUE, AND MCCARY V.
ILLINOIS, 386 U.S. 300 (1967), DISPOSED OF THE CLAIM THAT THE INFORMANT
MUST BE PRODUCED WHENEVER THE DEFENDANT SO DEMANDS. 

REVERSED. 

/1/  WE REJECT THE CONTENTION OF RESPONDENT THAT THE INFORMANT'S
OBSERVATIONS WERE TOO STALE TO ESTABLISH PROBABLE CAUSE AT THE TIME THE
WARRANT WAS ISSUED.  THE INFORMANT REPORTED HAVING PURCHASED WHISKEY
FROM RESPONDENT "WITHIN THE PAST 2 WEEKS," WHICH COULD WELL INCLUDE
PURCHASES UP TO THE DATE OF THE AFFIDAVIT.  MOREOVER, THESE RECENT
PURCHASES WERE PART OF A HISTORY OF PURCHASES OVER A TWO-YEAR PERIOD. 
IT WAS CERTAINLY REASONABLE FOR A MAGISTRATE, CONCERNED ONLY WITH A
BALANCING OF PROBABILITIES, TO CONCLUDE THAT THERE WAS A REASONABLE
BASIS FOR A SEARCH. 

MR. JUSTICE STEWART JOINS IN PART I OF THE CHIEF JUSTICE'S OPINION
AND IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE WHITE AGREES WITH PART III OF THE CHIEF JUSTICE'S
OPINION AND HAS CONCLUDED THAT THE AFFIDAVIT, CONSIDERED AS A WHOLE,
WAS SUFFICIENT TO SUPPORT ISSUANCE OF THE WARRANT.  HE THEREFORE
CONCURS IN THE JUDGMENT OF REVERSAL. 

MR. JUSTICE BLACK, CONCURRING. 

WHILE I JOIN THE OPINION OF THE CHIEF JUSTICE WHICH DISTINGUISHES
THIS CASE FROM AGUILAR V. TEXAS, 378 U.S. 108 (1964), AND SPINELLI V.
UNITED STATES, 393 U.S. 410 (1969), I WOULD GO FURTHER AND OVERRULE
THOSE TWO CASES AND WIPE THEIR HOLDINGS FROM THE BOOKS FOR THE REASONS,
AMONG OTHERS, SET FORTH IN THE DISSENT OF MR. JUSTICE CLARK IN AGUILAR,
WHICH I JOINED, AND MY DISSENT IN SPINELLI. 

MR. JUSTICE BLACKMUN, CONCURRING. 

I JOIN THE OPINION OF THE CHIEF JUSTICE AND THE JUDGMENT OF THE
COURT, BUT I ADD A PERSONAL COMMENT IN ORDER TO MAKE VERY CLEAR MY
POSTURE AS TO SPINELLI V. UNITED STATES, 393 U.S. 410 (1969), CITED IN
SEVERAL PLACES IN THAT OPINION.  I WAS A MEMBER OF THE 6-2 MAJORITY OF
THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN SPINELLI
V. UNITED STATES, 382 F.2D 871 (1967), WHICH THIS COURT BY A 5-3 VOTE
REVERSED, WITH THE PIVOTAL JUSTICE CONCLUDING HIS CONCURRING OPINION,
393 U.S.,AT 429, BY THE OBSERVATION THAT, "PENDING FULL-SCALE
RECONSIDERATION OF THAT CASE (DRAPER V. UNITED STATES, 358 U.S. 307
(1959)), ON THE ONE HAND, OR OF THE NATHANSON-AGUILAR CASES ON THE
OTHER, I JOIN THE OPINION OF THE COURT AND THE JUDGMENT OF REVERSAL,
ESPECIALLY SINCE A VOTE TO AFFIRM WOULD PRODUCE AN EVENLY DIVIDED
COURT."  OBVIOUSLY, I THEN FELT THAT THE COURT OF APPEASL HAD CORRECTLY
DECIDED THE CASE.  NOTHING THIS COURT SAID IN SPINELLI CONVINCED ME TO
THE CONTRARY.  I CONTINUE TO FEEL TODAY THAT SPINELLI AT THIS LEVEL WAS
WRONGLY DECIDED AND, LIKE MR. JUSTICE BLACK, I WOULD OVERRULE IT. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

THIS CASE PRESENTS THE QUESTION OF HOW OUR DECISIONS IN AGUILAR V.
TEXAS, 378 U.S. 108 (1964), AND SPINELLI V. UNITED STATES, 393 U.S. 410
(1969), APPLY WHERE MAGISTRATES IN ISSUING SEARCH WARRANTS ARE FACED
WITH THE TASK OF ASSESSING THE PROBABLE CREDIBILITY OF UNIDENTIFIED
INFORMANTS WHO PURPORT TO DESCRIBE CRIMINAL ACTIVITY OF WHICH THEY HAVE
PERSONAL KNOWLEDGE, AND WHERE IT DOES NOT APPEAR THAT SUCH INFORMANTS
HAVE PREVIOUSLY SUPPLIED ACCURATE INFORMATION TO LAW ENFORCEMENT
OFFICERS. 

I CANNOT AGREE THAT THE AFFIDAVIT HERE AT ISSUE PROVIDED A
SUFFICIENT BASIS FOR AN INDEPENDENT DETERMINATION, BY A NEUTRAL
JUDICIAL OFFICER, THAT PROBABLE CAUSE EXISTED.  ACCORDINGLY, I WOULD
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS.  FIVE MEMBERS OF THIS
COURT, HOWEVER, FOR FOUR SEPARATELY EXPRESSED REASONS, HAVE CONCLUDED
THAT THE JUDGMENT BELOW MUST BE REVERSED.  SOME OF THE THEORIES
EMPLOYED BY THOSE VOTING TO REVERSE ARE WHOLLY UNLIKE ANY OF THE
GROUNDS URGED BY THE GOVERNMENT. 

        I 

WHERE, AS IN THIS CASE, THE AFFIANT STATED UNDER OATH THAT HE HAS
BEEN INFORMED OF THE EXISTENCE OF CERTAIN CRIMINAL ACTIVITY, BUT HAS
NOT OBSERVED THAT ACTIVITY HIMSELF, A MAGISTRATE IN DISCHARGING HIS
DUTY TO MAKE AN INDEPENDENT ASSESSMENT OF PROBABLE CAUSE CAN PROPERLY
ISSUE A SEARCH WARRANT ONLY IF HE CONCLUDES THAT:  (A) THE KNOWLEDGE
ATTRIBUTED TO THE INFORMANT, IF TRUE, WOULD BE SUFFICIENT TO ESTABLISH
PROBABLE CAUSE; (B) THE AFFIANT IS LIKELY RELATING TRUTHFULLY WHAT THE
INFORMER SAID; AND (C) IT IS REASONABLY LIKELY THAT THE INFORMER'S
DESCRIPTION OF CRIMINAL BEHAVIOR ACCURATELY REFLECTS REALITY.  /1/ 

IN THE CASE BEFORE US, NO ONE MAINTAINS THAT THE MAGISTRATE'S
JUDGMENT AS TO ELEMENTS (A) AND (B) WAS NOT PROPERLY SUPPORTED. 
PLAINLY THE INFORMATION SET FORTH IN THE AFFIDAVIT, IF ENTITLED TO
CREDIT, ESTABLISHES PROBABLE CAUSE.  AND THE MAGISTRATE WAS CERTAINLY
ENTITLED TO RELY ON THE AGENT'S OFFICIAL STATUS, HIS PERSONAL
OBSERVATION OF THE AGENT, AND THE OATH ADMINISTERED TO HIM BY THE
MAGISTRATE IN CONCLUDING THAT THE AFFIANT'S ASSERTIONS AS TO WHAT HE
HAD BEEN TOLD BY THE INFORMER WERE CREDIBLE.     THE FINAL COMPONENT OF
THE PROBABLE CAUSE EQUATION, HERE INVOLVED, IS THAT IT MUST APPEAR
REASONABLY LIKELY THAT THE INFORMER'S CLAIM THAT CRIMINAL CONDUCT HAS
OCCURRED OR IS OCCURRING IS PROBABLY ACCURATE.  OUR CASES ESTABLISH
THAT THIS ELEMENT IS SATISFIED ONLY IF THERE IS REASON TO BELIEVE BOTH
THAT THE INFORMER IS A TRUTHFUL PERSON GENERALLY AND THAT HE HAS BASED
HIS PARTICULAR CONCLUSIONS IN THE MATTER AT HAND ON RELIABLE DATA,
AGUILAR V. TEXAS, SUPRA; SPINELLI V. UNITED STATES, SUPRA, FOR IT IS
NOT REASONABLE TO INVADE ANOTHER'S PREMISES ON THE BASIS OF
INFORMATION, EVEN IF IT APPEARS QUITE DAMNING WHEN SIMPLY TAKEN AT FACE
VALUE, UNLESS THERE IS CORROBORATION OF ITS TRUSTWORTHINESS.  THE FACT
THAT THE MAGISTRATE HAS DETERMINED THAT THE AGENT PROBABLY TRUTHFULLY
REPORTED WHAT THE INFORMANT CONVEYED CANNOT, OF COURSE, ESTABLISH THE
CREDIBILITY OR RELIABILITY OF THE INFORMATION ITSELF.  MORE IMMEDIATELY
REELVANT HERE, OUR CASES HAVE ESTABLISHED THAT WHERE THE AFFIANT RELIES
UPON THE ASSERTIONS OF CONFIDANTS TO ESTABLISH PROBABLE CAUSE, THE
AFFIDAVIT MUST SET FORTH FACTS WHICH ENABLE THE MAGISTRATE TO JUDGE FOR
HIMSELF BOTH THE PROBABLE CREDIBILITY OF THE INFORMANT AND THE
RELIABILITY OF HIS INFORMATION, FOR ONLY IF THIS CONDITION IS MET CAN A
REVIEWING COURT BE SATISFIED THAT THE MAGISTRATE HAS FULFILLED HIS
CONSTITUTIONAL DUTY TO RENDER AN INDEPENDENT DETERMINATION THAT
PROBABLE CAUSE EXISTS.  AGUILAR V. TEXAS, 378 U.S. 108 (1964); SPINELLI
V. UNITED STATES, 393 U.S. 410 (1969).  CF. GIORDENELLO V. UNITED
STATES, 357 U.S. 480 (1958); NATHANSON V. UNITED STATES, 290 U.S. 41
(1933); WHITELEY V. WARDEN, 401 U.S. 560 (1972).  /2/ 

THE PARTIES ARE IN AGREEMENT WITH THESE PRINCIPLES AND HAVE NOT
URGED THAT THEY BE RE-EXAMINED.  INDEED, I THINK THESE PRECEPTS FOLLOW
INELUCTABLY FROM THE CONSTITUTIONAL COMMAND THAT "NO WARRANTS SHALL
ISSUE, BUT UPON PROBABLE CAUSE."  WHETHER, IN THIS CASE, EITHER OF
THESE TESTS OF THE TRUSTWORTHINESS OF THE INFORMER'S TIP HAS BEEN MET
IS, HOWEVER, VIGOROUSLY DISPUTED. 

        II 

ALTHOUGH THE COURT OF APPEALS DID NOT ADDRESS ITSELF TO THIS
CONTENTION, RESPONDENT CLAIMS THAT THE AFFIDAVIT IS INSUFFICIENT TO
ESTABLISH THE RELIABILITY OF THE EVIDENCE UPON WHICH THE INFORMANT
BASED HIS CONCLUSIONS.  OF COURSE, MOST OF THESE DATA COME FROM ALLEGED
DIRECT PERSONAL OBSERVATION OF THE INFORMANT, SURELY A SUFFICIENT BASIS
UPON WHICH TO PREDICATE A FINDING OF RELIABILTY UNDER ANY TEST. 
HOWEVER, RESPONDENT STRESSES THAT THE ALLEGATION OF DIRECT OBSERVATION
OF THE CRIMINAL ACTIVITY DOES NOT NECESSARILY PURPORT TO EMBARCE A
PERIOD LESS THAN TWO WEEKS PRIOR TO THE ISSUANCE OF THE SEARCH
WARRANT.  MOREOVER, THE RELIABILITY OF THE SOURCE OF THE INFORMATION
THAT A PURCHASE WAS MADE "WITHIN THE PAST TWO DAYS" IS NOT ESTABLISHED
AND, IT IS ARGUED, THE OTHER INFORMATION WAS TOO STALE TO SUPPORT THE
ISSUANCE OF A WARRANT. 

THIS ARGUMENT IS PREMISED UPON AN OVERLY TECHNICAL VIEW OF THE
AFFIDAVIT.  THE INFORMANT IS SAID TO HAVE PERSONALLY BOUGHT ILLEGAL
WHISKEY FROM RESPONDENT "WITHIN THE PAST 2 WEEKS," WHICH COULD WELL
INCLUDE A POINT IN TIME QUITE CLOSE TO THE ISSUANCE OF THE WARRANT. 
MORE IMPORTANTLY, THE TOTALITY OF THE TIP EVIDENTLY REVEALS THAT THE
INFORMER PURPORTED TO DESCRIBE AN ONGOING OPERATION WHICH HE CLAIMED HE
HAD PERSONALLY OBSERVED OVER THE COURSE OF TWO YEARS.  GIVING DUE
DEFERENCE TO THE MAGISTRATE'S DETERMINATION OF PROBABLE CAUSE AND
READING THE AFFIDAVIT "IN A COMMONSENSE AND REALISTIC FASHION," UNITED
STATES V. VENTRESCA, 380 U.S. 102, 108 (1965), I MUST CONCLUDE THAT THE
AFFIDAVIT SETS FORTH SUFFICIENT DATA TO PERMIT A MAGISTRATE TO
DETERMINE THAT, IF THE INFORMER WAS LIKELY TELLING THE TRUTH,
INFORMATION ADEQUATE TO SUPPORT A FINDING OF PROBABLE CAUSE WAS LIKELY
OBTAINED IN A RELIABLE FASHION. 

        III 

I TURN, THEN, TO WHAT THE PARTIES HAVE TREATED AS THE CRUX OF THE
CONTROVERSY BEFORE US.  RESPONDENT CONTENDS, AND THE COURT OF APPEALS
SO HELD, THAT THE AFFIDAVIT DOES NOT SUFFICIENTLY SET FORTH FACTS AND
CIRCUMSTANCES FROM WHICH THE MAGISTRATE MIGHT PROPERLY HAVE CONCLUDED
THAT THE INFORMANT, IN PURPORTING TO DETAIL HIS PERSONAL OBSERVATION,
WAS PROBABLY TELLING THE TRUTH.  CONVERSELY, THE GOVERNMENT PRINCIPALLY
ARGUES THAT TWO FACTORS, SINGLY OR IN COMBINATION, PROVIDED A FACTUAL
BASIS FOR THE MAGISTRATE'S JUDGMENT THAT THE TIP WAS CREDIBLE.  FIRST,
THE AGENT STATED THAT HE HAD "INTERVIEWED THIS PERSON (AND) FOUND THIS
PERSON TO BE A PRUDENT PERSON."  SECOND, THE INFORMANT DESCRIBED THE
CRIMINAL ACTIVITY IN SOME DETAIL AND FROM HIS OWN PERSONAL KNOWLEDGE. 
/3/

        A 

THE GOVERNMENT'S FIRST CONTENTION MISCONCEIVES THE BASIC THRUST OF
THIS COURT'S DECISIONS IN THE NATHANSON, GIORDENELLO, AGUILAR,
SPINELLI, AND WHITELEY CASES, SUPRA.  THE CENTRAL PROPOSITION COMMON TO
EACH OF THESE DECISIONS IS THAT THE DETERMINATION OF PROBABLE CAUSE IS
TO BE MADE BY THE MAGISTRATE, NOT THE AFFIANT.  THAT THE AGENT-AFFIANT
DETERMINED THE INFORMER TO BE PRUDENT CANNOT BE A BASIS FOR SUSTAINING
THIS WARRANT UNLESS MAGISTRATES ARE ENTITLED TO DELEGATE THEIR
RESPONSIBILITIES TO LAW ENFORCEMENT OFFICIALS.  NATHANSON HELD THAT AN
AFFIDAVIT TO THE EFFECT THAT THE AFFIANT "HAS CAUSE TO SUSPECT AND DOES
BELIEVE" THAT ILLICIT LIQUOR WAS LOCATED ON CERTAIN PREMISES DID NOT
SUFFICIENTLY APPRISE THE ISSUING MAGISTRATE OF THE UNDERLYING "FACTS OR
CIRCUMSTANCES" FROM WHICH "HE CAN FIND PROBABLE CAUSE."  290 U.S.,AT
47.  IN AGUILAR, A SWORN ASSERTION THAT THE INFORMANT WAS "A CREDIBLE
PERSON" WAS HELD INSUFFICIENT TO ENABLE THE MAGISTRATE TO ASSESS THAT
CONCLUSION FOR HIMSELF.  ONLY TWO TERMS AGO, WE HELD A WARRANT
CONSTITUTIONALLY DEFECTIVE BECAUSE "(THOUGH THE AFFIANT SWORE THAT HIS
CONFIDANT WAS 'RELIABLE,' HE OFFERED THE MAGISTRATE NO REASON IN
SUPPORT OF THIS CONCLUSION."  SPINELLI V. UNITED STATES, 393 U.S.,AT
416.  READING THE ASSERTION THAT THE INFORMER IN THIS CASE WAS
"PRUDENT" IN THE BROADEST CONCEIVABLE COMMONSENSE FASHION, IT DOES NO
MORE THAN CLAIM HE WAS "CREDIBLE" OR "RELIABLE," I.E., THAT HE WAS
LIKELY TELLING THE TRUTH.  /4/  SUCH AN ASSERTION, HOWEVER, IS NO MORE
THAN A CONCLUSION WHICH THE CONSTITUTION REQUIRES MUST BE DRAWN
INDEPENDENTLY BY THE MAGISTRATE.  WHAT THIS PORTION OF THE AFFIDAVIT
LACKS ARE ANY OF THE UNDERLYING "FACTS OR CIRCUMSTANCES" THAT INFORMED
THE AGENT'S CONCLUSION AND WHOSE PRESENTATION TO THE MAGISTRATE WOULD
ENABLE HIM TO ASSESS THE PROBABLITY THAT THIS DETERMINATION WAS
SUFFICIENTLY PLAUSIBLE TO JUSTIFY AUTHORIZING A SEARCH OF RESPONDENT'S
PREMISES. 

        B 

NOR DO I THINK THIS VOID IS FILLED BY THE FACT THAT THE INFORMANT
CLAIMED TO SPEAK FROM HIS PERSONAL KNOWLEDGE.  IT IS TRUE THAT IN
NATHANSON THE COURT WAS NOT DEALING WITH THE SUFFICIENCY OF THE
ALLEGATIONS RESPECTING ONE OR MORE OF THE ABOVE-DESCRIBED COMPONENTS OF
PROBABLE CAUSE, BUT MERELY WITH A BARE OVERALL STATEMENT OF THE AFFIANT
THAT PROBABLE CAUSE EXISTED.  FURTHER, AS THE GOVERNMENT NOTES, OUR
CHIEF, BUT NOT SOLE, EMPHASIS IN AGUILAR WAS UPON THE ABSENCE OF ANY
EVIDENCE COMMUNICATED BY THE AFFIANT FROM WHICH A MAGISTRATE COULD
INFER THAT THE CONFIDANT GATHERED HIS EVIDENCE FROM A RELIABLE SOURCE. 
FROM THIS, THE GOVERNMENT CONTENDS THAT AGUILAR'S RELIABILITY-OF-THE
INFORMER TEST IS NOT APPLICABLE IN FULL FORCE WHERE, AS HERE, IT DOES
SEEM CLEAR THAT THE SOURCES OF THE INFORMER'S BELIEF, IF TRUTHFULLY
REPORTED, WERE RELIABLE.  I THINK THIS ARGUMENT MAKES TOO MUCH OF THE
CIRCUMSTANCES OF OUR PREVIOUS CASES.  THE CENTRAL POINT OF THE
DISCUSSION OF PROBABLE CAUSE IN AGUILAR IS, AS PERHAPS MORE PRECISELY
EMPHASIZED BY OUR EXPLICIT TWIN HOLDINGS IN SPINELLI, SEE 393 U.S.,AT
416, THAT THE TWO ELEMENTS NECESSARY TO ESTABLISH THE INFORMER'S
TRUSTWORTHINESS-- NAMELY, THAT THE TIP RELAYED TO THE MAGISTRATE BE
BOTH TRUTHFUL AND RELIABLE-- ARE ANALYTICALLY SEVERABLE.  IT IS NOT
POSSIBLE TO ARGUE THAT SINCE CERTAIN INFORMATION, IF TRUE, WOULD BE
TRUSTWORTHY, THEREFORE, IT MUST BE TRUE.  THE POSSIBILITY REMAINS THAT
THE INFORMATION MIGHT HAVE BEEN FABRICATED.  THIS IS WHY OUR CASES
REQUIRE THAT THERE BE A REASONABLE BASIS FOR CREDITING THE ACCURACY OF
THE OBSERVATION RELATED IN THE TIP.  IN SHORT, THE REQUIREMENT THAT THE
MAGISTRATE INDEPENDENTLY ASSES THE PROBABLE CREDIBILITY OF THE
INFORMANT DOES NOT VANISH WHERE THE SOURCE OF THE TIP INDICATES THAT,
IF TRUE, IT IS TRUSTWORTHY. 

THIS IS NOT TO SAY HOWEVER, THAT I THINK THE FACT OF ASSERTED
PERSONAL OBSERVATION CAN NEVER PLAY A ROLE IN DETERMINING WHETHER THAT
OBSERVATION ACTUALLY TOOK PLACE.  I CAN PERCEIVE AT LEAST TWO WAYS IN
WHICH, IN CIRCUMSTANCES SIMILAR TO THOSE OF THIS CASE, THAT INFORMATION
MIGHT BE TAKEN TO BEAR UPON THE INFORMER'S CREDIBILITY AS WELL AS UPON
THE RELIABILITY OF HIS SOURCES OF INFORMATION.  FOR EXAMPLE, TO THE
EXTENT THAT THE INFORMANT IS SOMEHOW RESPONSIBLE TO THE AFFIANT, THE
FACT OF ASSERTED PERSONAL OBSERVATION MIGHT BE OF SOME VALUE TO A
MAGISTRATE IN ASSESSING THE INFORMER'S CREDIBILITY.  IN SUCH
CIRCUMSTANCES, PERHAPS A MAGISTRATE COULD CONCLUDE THAT WHERE THE
CONFIDANT CLAIMED TO SPEAK FROM PERSONAL KNOWLEDGE IT IS SOMEWHAT LESS
LIKELY THAT THE INFORMANT WAS FALSIFYING HIS REPORT BECAUSE, IF THE
SEARCH YIELDS NO FRUIT, WHEN CALLED TO ACCOUNT HE WOULD BE UNABLE TO
EXPLAIN THIS AWAY BY IMPUGNING THE VERACITY OR RELIABILITY OF HIS
SOURCES.  HOWEVER, NO SUCH RELATIONSHIP IS REVEALED IN THIS CASE. 

ADDITIONALLY, IT MIGHT BE OF SIGNIFICANCE THAT THE INFORMANT HAD
GIVEN A MORE ORDINARILY DETAILED DESCRIPTION OF THE SUSPECT'S CRIMINAL
ACTIVITIES.  ALTHOUGH THIS WOULD BE MORE PROBATIVE OF THE RELIABILITY
OF THE INFORMATION, IT MIGHT ALSO PERMISSIBLY LEAD A MAGISTRATE, IN AN
OTHERWISE CLOSE CASE, TO CREDIT THE ACCURACY OF THE ACCOUNT AS WELL.  I
DO NOT BELIEVE, HOWEVER, THAT IN THIS INSTANCE THE RELATIVELY MEAGER
ALLEGATIONS OF THIS CHARACTER ARE, STANDING ALONE, ENOUGH TO SATISFY
THE CREDIBILITY REQUIREMENT ESSENTIAL TO THE SUFFICIENCY OF THIS
PROBABLE-CAUSE AFFIDAVIT.  READING THIS ASPECT OF THE AFFIDAVIT IN A
NOT UNDULY CIRCUMSPECT MANNER, THE ALLEGATIONS ARE OF A CHARACTER THAT
WOULD READILY OCCUR TO A PERSON PRONE TO FABRICATE.  TO HOLD THAT THIS
ASPECT OF THE AFFIDAVIT, WITHOUT MORE, WOULD ENABLE "A MAN OF
REASONABLE CAUTION," BERGER V. NEW YORK, 388 U.S. 41, 55 (1967), TO
CONCLUDE THAT THERE WAS ADEQUATE REASON TO BELIEVE THE INFORMANT
CREDIBLE WOULD OPEN THE DOOR TO THE ACCEPTANCE OF LITTLE MORE THAN
FLORID AFFIDAVITS AS JUSTIFYING THE ISSUANCE OF SEARCH WARRANTS. 

C 

SOME MEMBERS OF THE COURT WOULD REVERSE THE JUDGMENT BELOW ON THE
GROUNDS THAT THE MAGISTRATE MIGHT PROPERLY HAVE CREDITED THE
INFORMANT'S ASSERTIONS BECAUSE THEY CONFESSED TO THE COMMISSION OF A
CRIME.  THIS RATIONALE IS ADVANCED NOTWITHSTANDING THE GOVERNMENT'S
FAILURE EVEN TO SUGGEST IT. 

HAD THIS ARGUMENT BEEN PRESSED UPON US, I WOULD FIND IT DIFFICULT TO
ACCEPT.  FIRST THE ANALOGY TO THE HEARSAY EXCEPTION IS QUITE TENUOUS. 
THE FEDERAL RULE, ALTHOUGH IT IS OFTEN CRITICIZED, IS THAT DECLARATIONS
AGAINST PENAL INTEREST DO NOT FALL WITHIN THIS EXCEPTION.  DONNELLY V.
UNITED STATES, 228 U.S. 243 (1913).  MOREOVER, BECAUSE IT HAS BEEN
THOUGHT THAT SUCH STATEMENTS SHOULD BE RELIEF UPON BY FACTFINDERS ONLY
WHEN NECESSITY JUSTIFIES IT, THE RULE UNIVERSALLY REQUIRES A SHOWING
THAT THE DECLARANT CANNOT BE PRODUCED PERSONALLY BEFORE THE TRIER OF
FACT, C. MCCORMICK, EVIDENCE SECS. 253, 257 (1954), AN ELEMENT NOT
SHOWN TO BE PRESENT HERE.  SEE PART V, INFRA.  FINALLY, WE HAVE NOT
FOUND ANY INSTANCE OF THE APPLICATION OF THIS RULE WHERE THE WITNESS
DECLINED TO REVEAL TO THE TRIER OF FACT THE IDENTITY OF THE DECLARANT,
PRESUMABLY BECAUSE WITHOUT THIS KNOWLEDGE IT CANNOT BE READILY ASSUMED
THAT THE DECLARANT MIGHT HAVE HAD REASON TO SUSPECT THE USE OF THE
STATEMENT WOULD DO HIM HARM.  THUS, WHILE STRICT RULES OF EVIDENCE
CERTAINLY DO NOT GOVERN MAGISTRATES' ASSESSMENTS OF PROBABLE CAUSE, IT
WOULD REQUIRE A RATHER EXTENSIVE RELAXATION OF THEM TO PERMIT RELIANCE
ON THIS FACTOR.  AND THESE RULES CANNOT BE COMPLETELY RELAXED, OF
COURSE, SINCE THE BASIC THRUST OF SPINELLI, AGUILAR, NATHANSON,
WHITELEY, AND GIORDENELLO, SUPRA, IS TO PROHIBIT THE ISSUANCE OF
WARRANTS UPON MERE UNCORROBORATED HEARSAY.  THE SIMPLE STATEMENT BY AN
AFFIANT THAT HE AND ANOTHER HAD COMMITTED A CRIME, WHERE OFFERED TO
PROVE THE COMPLICITY OF THE THIRD PARTY, IS LITTLE, IF ANY, MORE THAN
THAT. 

SECONDLY, THE RATIONALE FOR THIS EXCEPTION TO THE HEARSAY RULE IS
THAT THE FACT THAT THE DECLARATION WAS AGAINST THE SPEAKER'S SELF
INTEREST TENDS TO INDICATE THAT ITS SUBSTANCE IS ACCURATE.  5
J.WIGMORE, EVIDENCE 1457 (3D ED. 1940).  BUT WHERE THE DECLARANT IS
ALSO A POLICE INFORMANT IT SEEMS AT LEAST AS PLAUSIBLE TO ASSUME,
WITHOUT FURTHER ENLIGHTENMENT EITHER AS TO THE GOVERNMENT'S GENERAL
PRACTICE OR AS TO THE PARTICULAR FACTS OF THIS CASE THAT THE DECLARANT
CONFIDANT AT LEAST BELIEVED HE WOULD RECEIVE ABSOLUTION FROM
PROSECUTION FOR HIS CONFESSED CRIME IN RETURN FOR HIS STATEMENT. 
(THIS, OF COURSE, WOULD NOT BE AN OBJECTION WHERE THE DECLARANT IS NOT
ALSO THE INFORMANT.  SEE SPINELLI, SUPRA, AT 425 (WHITE, J.
CONCURRING).)  THUS, SOME SHOWING THAT THE INFORMANT DID NOT POSSESS
ILLUSIONS OF IMMUNITY MIGHT WELL BE ESSENTIAL. 

THIRDLY, THE EFFECT OF ADOPTING SUCH A RULE WOULD BE TO ENCOURAGE
THE GOVERNMENT TO PREFER AS INFORMANTS PARTICIPANTS IN CRIMINAL
ENTERPRISES RATHER THAN ORDINARY CITIZENS, A GOAL THE GOVERNMENT
SPECIFICALLY ESCHEWS IN ITS BRIEF IN THIS CASE UPON THE EXPLICIT
PREMISE THAT SUCH PERSONS ARE OFTEN LESS RELIABLE THAN THOSE WHO OBEY
THE LAW.  BRIEF FOR THE UNITED STATES 14. 

IN SHORT, I AM INCLINED TO THE VIEW, ALTHOUGH I WOULD NOT DECIDE THE
QUESTION HERE, THAT MAGISTRATES MAY NOT PROPERLY PREDICATE A
DETERMINATION THAT AN UNNAMED CONFIDANT IS CREDIBLE UPON THE BARE FACT
THAT BY GIVING INFORMATION HE ALSO CONFESSED TO HAVING COMMITTED A
CRIME.  MORE IMPORTANTLY AT THIS INJUNCTURE, IT SEEMS TO ME QUITE CLEAR
THAT NO SUCH RULE SHOULD BE INJECTED INTO OUR FEDERAL JURISPRUDENCE IN
THE ABSENCE OF ANY REPRESENTATION BY THE GOVERNMENT THAT THE FACTUAL
ASSUMPTIONS UNDERLYING IT DO, INDEED, COMPORT WITH REALITY, AND IN THE
FACE OF THE GOVERNMENT'S APPARENT EXPLICIT ASSERTION, IN THIS VERY
CASE, THAT THOSE ABLE TO SUPPLY INFORMATION SUFFICIENT TO ESTABLISH
PROBABLE CAUSE UNDER SUCH A NEW RULE WOULD TEND TO BE LESS RELIABLE
THAN THOSE WHO CANNOT.  THE NECESSITY FOR THIS HASTE TO EMBRACE SUCH A
SPECULATIVE THEORY, WITHOUT ANY ARGUMENT FROM THOSE WHO WILL BE
AFFECTED BY IT, WHOLLY ESCAPES ME.

        IV 

FINALLY, IT IS ARGUED THAT EVEN IF THE TIP PLUS THE AFFIANT'S
ASSERTION THAT THE INFORMANT WAS "PRUDENT" DID NOT PROVIDE A REASONABLE
BASIS FOR THE MAGISTRATE'S CONCLUSION THAT THE CONFIDANT WAS CREDIBLE,
TWO OTHER FACTORS WOULD HAVE SUFFICED.  FIRST, AT SOME TIME IN THE PAST
FOUR OR MORE YEARS, IN AN ABANDONED HOUSE "UNDER HARRIS' CONTROL," THE
LOCAL CONSTABLE HAD LOCATED "A SIZEABLE STASH OF ILLICIT WHISKEY." 
WHILE AN ASSERTION OF "PRIOR EVENTS WITHIN THE AFFIANT'S OWN KNOWLEDGE
. . . INDICATING THAT THE DEFENDANT HAD PREVIOUSLY TRAFFICKED IN
CONTRABAND," ANTE, AT 581, ADMITTEDLY DID NOT APPEAR IN THE AFFIDAVIT
HELD INSUFFICIENT IN SPINELLI, THIS HARDLY DISTINGUISHES THAT CASE IN
ANY PURPOSEFUL MANNER.  SURELY, IT CANNOT SERIOUSLY BE SUGGESTED THAT,
ONCE AN INDIVIDUAL HAS BEEN CONVICTED OF BOOTLEGGING, ANY ANONYMOUS
PHONE CALLER WHO STATES HE HAS JUST PERSONALLY WITNESSED ANOTHER
ILLICIT SALE (UP TO FOUR YEARS LATER) BY THAT INDIVIDUAL PROVIDES
FEDERAL AGENTS WITH PROBABLE CAUSE TO SEARCH THE SUSPECT'S HOME.  I CAN
ONLY CONCLUDE THAT THIS ARGUMENT IS A MAKEWEIGHT INTENDED TO AVOID THE
NECESSITY OF CALLING FOR AN OUTRIGHT OVERRULING OF SPINELLI. 

SECONDLY, THE CLAIM IS MADE THAT A MAGISTRATE COULD CONCLUDE THAT
THE CONFIDANT HERE WAS CREDIBLE BECAUSE THE AGENT HAD "RECEIVED
NUMEROUS INFORMATION FROM ALL TYPES OF PERSONS AS TO (RESPONDENT'S)
ACTIVITIES."  TO RELY ON THIS FACTOR ALONE, OF COURSE, IS FLATLY
INCONSISTENT WITH SPINELLI, WHERE WE HELD THAT "THE ALLEGATION THAT
SPINELLI WAS 'KNOWN' TO THE AFFIANT AND TO THE OTHER FEDERAL AND LOCAL
LAW ENFORCEMENT OFFICERS AS A GAMBLER AND AN ASSOCIATE OF GAMBLERS IS
BUT A BALD AND UNILLUMINATING ASSERTION OF SUSPICION THAT IS ENTITLED
TO NO WEIGHT IN APPRAISING THE MAGISTRATE'S DECISION."  SPINELLI,
SUPRA, AT 414.  IN THE INSTANT CASE, THE AFFIANT DID NOT PURPORT TO
"KNOW" RESPONDENT WAS A DEALER IN ILLICIT WHISKEY, NOR DID HE IDENTIFY
THE SOURCE OF HIS INFORMATION TO THAT EFFECT. 

NEVERTHELESS, THE CONTENTION IS ADVANCED THAT THIS ASPECT OF
SPINELLI HAD "NO SUPPORT IN OUR PRIOR CASES, LOGIC OR EXPERIENCE,"
ANTE, AT 583, AND THUS SHOULD BE DISCARDED.  HOWEVER, NATHANSON HELD
THAT "(MERE AFFIRMANCE OF BELIEF OR SUSPICION IS NOT ENOUGH" TO
ESTABLISH PROBABLE CAUSE FOR ISSUANCE OF A WARRANT TO SEARCH A PRIVATE
DWELLING.  290 U.S.,AT 47.  IT IS ARGUED THAT NATHANSON "WAS LIMITED TO
HOLDING THAT REPUTATION, STANDING ALONE, WAS INSUFFICIENT."  ANTE, AT
582.  BUT THIS IS THE PRECISE PROBLEM HERE-- ONLY THE RESPONDENT'S
REPUTATION HAS BEEN SERIOUSLY INVOKED TO ESTABLISH THE CREDIBILITY OF
THE INFORMANT, AN ELEMENT OF PROBABLE CAUSE ENTIRELY SEVERABLE FROM THE
REQUIREMENT THAT THE CONFIDANT'S SOURCE BE RELIABLE.  SEE PARTS I AND
III OF THIS OPINION. 

A NARROWER VIEW OF NATHANSON IS SAID TO BE CONFIRMED BY READING
"BRINEGAR V. UNITED STATES, 338 U.S. 160 (1949), TO HAVE "HELD PROPER
THE ASSERTION OF THE SEARCHING OFFICER THAT HE HAD PREVIOUSLY ARRESTED
THE DEFENDANT FOR A SIMILAR OFFENSE AND THAT THE DEFENDANT HAD A
REPUTATION FOR HAULING LIQUOR."  ANTE, AT 582.  BUT BRINEGAR ITSELF WAS
VERY CAREFULLY LIMITED TO SITUATIONS INVOLVING THE ARREST OF THOSE
DRIVING MOVING VEHICLES, 338 U.S.,AT 174, 176-177, A PROBLEM THAT HAS
TYPICALLY BEEN TREATED AS SUIT GENERIS BY THIS COURT.  FURTHER, THE
COURT IN BRINEGAR SPECIFICALLY HELD THE ARREST VALID "(WHOLLY APART
FROM (THE AGENT'S) KNOWLEDGE THAT (THE SUSPECT) BORE THE GENERAL
REPUTATION OF BEING ENGAGED IN LIQUOR RUNNING."  ID., AT 170.  WHILE IT
IS TRUE THAT JONES V. UNITED STATES, 362 U.S. 257, 271 (1960), CITES
THE FACT THAT THE INFORMANT'S "STORY WAS CORROBORATED BY OTHER SOURCES
OF INFORMATION," THE OPINION NOWHERE SUGGESTS THAT THIS FACTOR,
STANDING ALONE, WOULD HAVE BEEN SUFFICIENT TO ENABLE A MAGISTRATE TO
ASSESS THE CONFIDANT'S RELIABILITY.  AT LEAST EQUAL EMPHASIS WAS PLACED
UPON THE INFORMANT'S PREVIOUSLY PROVED VERACITY AND HIS TANGIBLE PROOF
OF ACTUAL OBSERVATION OF THE ILLEGAL ACTIVITY. 

THUS, I CONCLUDE THAT SPINELLI AND NATHANSON, WITHOUT CONTRADICTION,
STAND FOR THE PROPOSITION THAT THE MAGISTRATE COULD NOT ESTABLISH THE
LIKELY VERACITY OF THE UNIDENTIFIED INFORMANT ON THE GROUNDS THAT HIS
STORY COINCIDED, IN UNSPECIFIED PARTICULARS, WITH RUMORS CIRCULATED BY
UNKNOWN THIRD PARTIES.  I AM NOT CERTAIN WHAT IS MEANT BY THE CLAIM
THAT SUCH A RULE OF LAW IS ILLOGICAL.  IT WOULD, INDEED, BE ILLOGICAL
TO ARGUE THAT THE AGENT COULD NOT HAVE RELIED UPON INFORMATION AS TO
RESPONDENT'S REPUTATION THAT HE DEEMED CREDIBLE AND RELIABLE IN
CONCLUDING THAT THE INFORMANT HAD LIKELY TOLD THE TRUTH.  BUT IT WAS
NOT THE AGENT'S TASK TO DETERMINE WHETHER A SEARCH WARRANT SHOULD
ISSUE.  THIS WAS THE MAGISTRATE'S RESPONSIBILITY.  AS TO THE
MAGISTRATE, I CONFESS THAT I DO NOT COMPREHEND, WHERE THE ISSUE IS
WHETHER THE CONFIDANT IS TO BE BELIEVED, HOW THE AGENT'S ASSERTION THAT
HE HAD "RECEIVED NUMEROUS INFORMATION FROM ALL TYPES OF PERSONS AS TO
(RESPONDENT'S) ACTIVITIES," CAN, AS A MATTER OF LOGIC OR EXPERIENCE, BE
ACCURATELY DESCRIBED AS OTHER THAN "A BALD AND UNILLUMINATING ASSERTION
OF SUSPICION."  IT IS, AT BEST, A CONCLUSORY STATEMENT THAT RESPONDENT
HAD A DESERVED REPUTATION AS A DEALER IN ILLICIT WHISKEY.  THE FOURTH
AMENDMENT, I REPEAT, REQUIRES THAT SUCH CONCLUSIONS BE DRAWN, FROM THE
UNDERLYING FACTS AND CIRCUMSTANCES, BY THE MAGISTRATE, NOT THE AGENT. 

        V 

THE GOVERNMENT HAS EARNESTLY PROTESTED THAT THE RESULT BELOW, IF
PERMITTED TO STAND, WILL SERIOUSLY HAMPER THE ENFORCEMENT OF THE
FEDERAL CRIMINAL LAW.  IT IS SAID THAT IF THIS AFFIDAVIT IS
INSUFFICIENT TO SUPPORT THE ISSUANCE OF A SEARCH WARRANT, IT WILL BE
EXTREMELY DIFFICULT TO MEET THE FOURTH AMENDMENT'S STANDARDS WHERE THE
INFORMER, ALTHOUGH APPARENTLY QUITE CREDIBLE, HAS NEVER BEFORE GIVEN
ACCURATE INFORMATION TO LAW ENFORCEMENT OFFICERS, ESPECIALLY WHERE HE,
OR THE AGENT, IS UNWILLING TO HAVE THE INFORMANT'S IDENTIFY DISCLOSED. 
IT WOULD, INDEED, BE ANOMALOUS IF THE FOURTH AMENDMENT DICTATED SUCH
RESULTS, FOR IT SURELY WAS NEVER INTENDED AS A HINDRANCE TO FAIR,
VIGOROUS LAW ENFORCEMENT.  FURTHER, I THINK THERE IS MUCH TRUTH IN THE
GOVERNMENT'S SUPPORTING ASSERTION THAT THE ORDINARY CITIZEN WHO HAS
NEVER BEFORE REPORTED A CRIME TO THE POLICE MAY, IN FACT, BE MORE
RELIABLE THAN ONE WHO SUPPLIES INFORMATION ON A REGULAR BASIS.  "THE
LATTER IS LIKELY TO BE SOMEONE WHO IS HIMSELF INVOLVED IN CRIMINAL
ACTIVITY OR IS, AT LEAST, SOMEONE WHO ENJOYS THE CONFIDENCE OF
CRIMINALS."  GOVERNMENT'S BRIEF 14.  /5/ 

I DO NOT, HOWEVER, SHARE THE GOVERNMENT'S CONCERN THAT A JUDGMENT OF
AFFIRMANCE WOULD HAVE SUCH A CONSTRICTING EFFECT ON LEGITIMATE FEDERAL
LAW ENFORCEMENT.  FOR EXAMPLE, IT WOULD SEEM THAT SUCH INFORMERS COULD
OFTEN BE BROUGHT BEFORE THE MAGISTRATE WHERE HE COULD ASSESS THEIR
CREDIBILITY FOR HIMSELF.  WE CANNOT ASSUME THAT THE ORDINARY LAW
ABIDING CITIZEN HAS QUALMS ABOUT THIS SORT OF COOPERATION WITH LAW
ENFORCEMENT OFFICERS.  AND I DO NOT UNDERSTAND THE GOVERNMENT TO BE
ASSERTING THAT EFFECTIVE LAW ENFORCEMENT WILL OFTEN DICTATE THAT THE
IDENTIFY OF INFORMANTS BE KEPT SECRET FROM FEDERAL MAGISTRATES
THEMSELVES.  MOREOVER, IT WILL ALWAYS BE OPEN TO THE OFFICER TO SEEK
CORROBORATION OF THE TIP. 

BEYOND THESE CONSIDERATIONS, I DO NOT UNDERSTAND WHY A FEDERAL
AGENT, WHO HAS DETERMINED A CONFIDANT TO BE "RELIABLE," "CREDIBLE," OR
"PRUDENT" CANNOT LAY BEFORE THE MAGISTRATE THE GROUNDS UPON WHICH HE
BASED THAT JUDGMENT.  I WOULD NOT HOLD THAT A MAGISTRATE'S
DETERMINATION THAT AN INFORMER IS "PRUDENT" IS INSUFFICIENT TO SUPPORT
THE ISSUANCE OF A WARRANT.  TO THE CONTRARY, I WOULD ONLY INSIST THAT
THIS JUDGMENT BE THAT OF THE MAGISTRATE, NOT THE LAW ENFORCEMENT
OFFICER WHO SEEKS THE WARRANT.  WITHOUT VIOLATING THE CONFIDENCES OF
HIS SOURCE, THE AGENT SURELY COULD DESCRIBE FOR THE MAGISTRATE SUCH
THINGS AS THE INFORMER'S GENERAL BACKGROUND, EMPLOYMENT, PERSONAL
ATTRIBUTES THAT ENABLE HIM TO OBSERVE AND RELATE ACCURATELY, POSITION
IN THE COMMUNITY, REPUTATION WITH OTHERS, PERSONAL CONNECTION WITH THE
SUSPECT, ANY CIRCUMSTANCES WHICH SUGGEST THE PROBABLE ABSENCE OF ANY
MOTIVATION TO FALSIFY, THE APPARENT MOTIVATION FOR SUPPLYING THE
INFORMATION, THE PRESENCE OR ABSENCE OF A CRIMINAL RECORD OR
ASSOCIATION WITH KNOWN CRIMINALS, AND THE LIKE. 

VI 

THIS AFFIDAVIT IS BARREN OF ANYTHING THAT ENABLED THE MAGISTRATE TO
JUDGE FOR HIMSELF OF THE CREDIBILITY OF THE INFORMANT.  WE SHOULD NOT
COUNTENANCE THE ISSUANCE OF A SEARCH WARRANT BY A FEDERAL MAGISTRATE
UPON NO MORE EVIDENCE THAN THAT PRESENTED HERE.  A PERSON WHO HAS NOT
BEEN SHOWN TO POSSESS ANY OF THE COMMON ATTRIBUTES OF CREDIBILITY,
WHOSE NAME CANNOT BE DISCLOSED TO A MAGISTRATE, AND WHOSE INFORMATION
HAS NOT BEEN CORROBORATED IS PRECISELY THE SORT OF INFORMANT WHOSE TIP
SHOULD NOT BE THE SOLE BASIS FOR THE ISSUANCE OF A WARRANT, IF THE
CONSTITUTIONAL COMMAND THAT "NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE
CAUSE" IS TO BE RESPECTED.  AND THE ASSERTION THAT SUCH A PERSON MAY BE
BELIEVED WHERE HE CONFESSES THAT HE IS A CRIMINAL OR WHERE HIS
STATEMENTS DOVETAIL WITH OTHER, UNSPECIFIED RUMORS CARRIES ITS OWN
REFUTATION.  WITH ALL RESPECT, SUCH AN ANALYSIS BESPEAKS MORE A FIRM
HOSTILITY TO AGUILAR, NATHANSON, AND SPINELLI THAN A CAREFUL JUDGMENT
AS TO THE PRINCIPLES THOSE CASES REFLECT.  DESPITE ALL ITS SURFACE
DETAIL, THIS AFFIDAVIT CANNOT BE SUSTAINED WITHOUT CUTTING DEEPLY INTO
THE CORE REQUIREMENT OF THE FOURTH AMENDMENT THAT SEARCH WARRANTS
CANNOT ISSUE EXCEPT UPON THE INDEPENDENT FINDING OF A NEUTRAL
MAGISTRATE THAT PROBABLE CAUSE EXISTS. 

FOR THESE REASONS, I DISSENT. 

/1/  OF COURSE WHERE, AS HERE, THE AFFIANT PROVIDES INFORMATION IN
ADDITION TO THE INFORMANT'S TIP, THE MAGISTRATE COULD ALTERNATIVELY
FIND PROBABLE CAUSE, WITHOUT EXAMINING THE TIP, IF HE CAN CONCLUDE THAT
(A) THE AFFIANT IS PROBABLY TELLING THE TRUTH AND (B) THE AFFIDAVIT
APART FROM THE TIP IS SUFFICIENTLY INFORMATIVE TO ESTABLISH PROBABLE
CAUSE.  SEE SPINELLI V. UNITED STATES, 393 U.S. 410, 414 (1969). 
CONCEDEDLY, THIS LATTER ELEMENT IS NOT PRESENT HERE.  GOVERNMENT'S
BRIEF 16.  WITHOUT CREDITING THE TIP, THE AFFIDAVIT IS INSUFFICIENT. 

/2/  GIORDENELLO AND WHITELEY EACH INVOLVED AN ARREST WARRANT RATHER
THAN A SEARCH WARRANT, BUT THE ANALYSIS REQUIRED TO DETERMINE THE
VALIDITY OF EITHER IS BASICALLY THE SAME. 

/3/  THE GOVERNMENT MAKES BRIEF REFERENCE TO THE ASSERTION THAT THE
INFORMANT'S VERBAL STATEMENT TO THE AFFIANT WAS "SWORN."  GOVERNMENT'S
BRIEF 13 N. 2.  I DO NOT SEE HOW THIS AFFECTS THE CASE.  SURELY THERE
IS NO REASON TO SUSPECT THAT THIS INDICATES THE CONFIDANT ANTICIPATED
POTENTIAL PERJURY PROCEEDINGS IF HE WERE SUBSEQUENTLY PROVED A LIAR. 
NOR DOES THAT ASSERTION REVEAL, IN ANY MEANINGFUL SENSE, WHAT SORT OF
RELATIONSHIP THIS MIGHT HAVE REFLECTED OR CREATED BETWEEN THE AGENT AND
HIS INFORMER. 

/4/  THE COURT OF APPEALS IN REVERSING RESPONDENT'S CONVICTION
STATED THAT "(THE ALLEGATION THAT (THE INFORMANT) IS A 'PRUDENT PERSON'
SIGNIFIES THAT HE IS CIRCUMSPECT IN THE CONDUCT OF HIS AFFAIRS, BUT
REVEALS NOTHING ABOUT HIS CREDIBILITY."  412 F.2D 796, 797-798.  I
CONSIDER THIS A TOO RESTRICTIVE CONSTRUCTION OF THE AFFIDAVIT AND
CANNOT ACCEPT THAT ASPECT OF THE REASONING OF THE COURT OF APPEALS. 

/5/  OF COURSE, THE MAGISTRATE WAS PRESENTED NO EVIDENCE THAT THIS
IS, IN FACT, SUCH A CASE.  INDEED, THE VERY ALLEGATIONS IN THE
AFFIDAVIT TO THE EFFECT THAT THE INFORMANT HERE HAD BEEN A FREQUENT
PURCHASER FROM RESPONDENT WOULD SUGGEST THAT HE "IS, AT LEAST, SOMEONE
WHO ENJOYS THE CONFIDENCE OF CRIMINALS."  THE GOVERNMENT'S ARGUMENT, AS
I UNDERSTAND IT, IS THAT THE AFFIDAVIT IN THIS CASE IS TYPICAL OF THOSE
THAT CAN BE PRODUCED BY AGENTS WHO RELY ON FIRST-TIME INFORMERS NOT
BOUND UP THEMSELVES IN CRIMINAL ACTIVITY.  AS I POINT OUT BELOW, IF
THIS HAD BEEN THE SITUATION HERE, AND THAT FACT HAD BEEN COMMUNICATED
TO THE MAGISTRATE, THIS WOULD BE A VERY DIFFERENT CASE. 

BEATRICE ROSENBERG ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HER
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT GENERAL WILSON,
RICHARD B. STONE, AND MERVYN HAMBURG. 

STEVEN M. UMIN, BY APPOINTMENT OF THE COURT, 400 U.S. 955, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

FRANK G. CARRINGTON, JR., AND ALAN S. GANZ FILED A BRIEF FOR
AMERICANS FOR EFFECTIVE LAW ENFORCEMENT, INC., AS AMICUS CURIAE URGING
REVERSAL. 
..END :

















LEMON V. KURTZMAN, 403 U.S. 602 


       LEMON ET AL. V. KURTZMAN, SUPERINTENDENT OF PUBLIC

           INSTRUCTION OF PENNSYLVANIA, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF PENNSYLVANIA

        NO. 89.  ARGUED MARCH 3, 1971-- DECIDED JUNE 28, 1971  /0/ 


RHODE ISLAND'S 1969 SALARY SUPPLEMENT ACT PROVIDES FOR A 15% SALARY
SUPPLEMENT TO BE PAID TO TEACHERS IN NONPUBLIC SCHOOLS AT WHICH THE
AVERAGE PER-PUPIL EXPENDITURE ON SECULAR EDUCATION IS BELOW THE AVERAGE
IN PUBLIC SCHOOLS.  ELIGIBLE TEACHERS MUST TEACH ONLY COURSES OFFERED
IN THE PUBLIC SCHOOLS, USING ONLY MATERIALS USED IN THE PUBLIC SCHOOLS,
AND MUST AGREE NOT TO TEACH COURSES IN RELIGION.  A THREE-JUDGE COURT
FOUND THAT ABOUT 25% OF THE STATE'S ELEMENTARY STUDENTS ATTENDED
NONPUBLIC SCHOOLS, ABOUT 95% OF WHOM ATTENDED ROMAN CATHOLIC AFFILIATED
SCHOOLS, AND THAT TO DATE ABOUT 250 TEACHERS AT ROMAN CATHOLIC SCHOOLS
ARE THE SOLE BENEFICIARIES UNDER THE ACT.  THE COURT FOUND THAT THE
PAROCHIAL SCHOOL SYSTEM WAS "AN INTEGRAL PART OF THE RELIGIOUS MISSION
OF THE CATHOLIC CHURCH," AND HELD THAT THE ACT FOSTERED "EXCESSIVE
ENTANGLEMENT" BETWEEN GOVERNMENT AND RELIGION, THUS VIOLATING THE
ESTABLISHMENT CLAUSE.  PENNSYLVANIA'S NONPUBLIC ELEMENTARY AND
SECONDARY EDUCATION ACT, PASSED IN 1968, AUTHORIZES THE STATE
SUPERINTENDENT OF PUBLIC INSTRUCTION TO "PURCHASE" CERTAIN "SECULAR
EDUCATIONAL SERVICES" FROM NONPUBLIC SCHOOLS, DIRECTLY REIMBURSING
THOSE SCHOOLS SOLELY FOR TEACHERS' SALARIES, TEXTBOOKS, AND
INSTRUCTIONAL MATERIALS.  REIMBURSEMENT IS RESTRICTED TO COURSES IN
SPECIFIC SECULAR SUBJECTS, THE TEXTBOOKS AND MATERIALS MUST BE APPROVED
BY THE SUPERINTENDENT, AND NO PAYMENT IS TO BE MADE FOR ANY COURSE
CONTAINING "ANY SUBJECT MATTER EXPRESSING RELIGIOUS TEACHING, OR THE
MORALS OR FORMS OF WORSHIP OF ANY SECT."  CONTRACTS WERE MADE WITH
SCHOOLS THAT HAVE MORE THAN 20% OF ALL THE STUDENTS IN THE STATE, MOST
OF WHICH WERE AFFILIATED WITH THE ROMAN CATHOLIC CHURCH.  THE COMPLAINT
CHALLENGING THE CONSTITUTIONALITY OF THE ACT ALLEGED THAT THE CHURCH
AFFILIATED SCHOOLS ARE CONTROLLED BY RELIGIOUS ORGANIZATIONS, HAVE THE
PURPOSE OF PROPAGATING AND PROMOTING A PARTICULAR RELIGIOUS FATH, AND
CONDUCT THEIR OPERATIONS TO FULFILL THAT PURPOSE.  A THREE-JUDGE COURT
GRANTED THE STATE'S MOTION TO DISMISS THE COMPLAINT FOR FAILURE TO
STATE A CLAIM FOR RELIEF, FINDING NO VIOLATION OF THE ESTABLISHMENT OR
FREE EXERCISE CLAUSE.  HELD:  BOTH STATUTES ARE UNCONSTITUTIONAL UNDER
THE RELIGION CLAUSES OF THE FIRST AMENDMENT, AS THE CUMULATIVE IMPACT
OF THE ENTIRE RELATIONSHIP ARISING UNDER THE STATUTES INVOLVES
EXCESSIVE ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION.  PP. 611-625. 

(A) THE ENTANGLEMENT IN THE RHODE ISLAND PROGRAM ARISES BECAUSE OF
THE RELIGIOUS ACTIVITY AND PURPOSE OF THE CHURCH-AFFILIATED SCHOOLS,
ESPECIALLY WITH RESPECT TO CHILDREN OF IMPRESSIONABLE AGE IN THE
PRIMARY GRADES, AND THE DANGERS THAT A TEACHER UNDER RELIGIOUS CONTROL
AND DISCIPLINE POSES TO THE SEPARATION OF RELIGIOUS FROM PURELY SECULAR
ASPECTS OF ELEMENTARY EDUCATION IN SUCH SCHOOLS.  THESE FACTORS REQUIRE
CONTINUING STATE SURVEILLANCE TO ENSURE THAT THE STATUTORY RESTRICTIONS
ARE OBEYED AND THE FIRST AMENDMENT OTHERWISE RESPECTED.  FURTHERMORE,
UNDER THE ACT THE GOVERNMENT MUST INSPECT SCHOOL RECORDS TO DETERMINE
WHAT PART OF THE EXPENDITURES IS ATTRIBUTABLE TO SECULAR EDUCATION AS
OPPOSED TO RELIGIOUS ACTIVITY, IN THE EVENT A NONPUBLIC SCHOOL'S
EXPENDITURES PER PUPIL EXCEED THE COMPARABLE FIGURES FOR PUBLIC
SCHOOLS.  PP. 615-620. 

(B) THE ENTANGLEMENT IN THE PENNSYLVANIA PROGRAM ALSO ARISES FROM
THE RESTRICTIONS AND SURVEILLANCE NECESSARY TO ENSURE THAT TEACHERS
PLAY A STRICTLY NONIDEOLOGICAL ROLE AND THE STATE SUPERVISION OF
NONPUBLIC SCHOOL ACCOUNTING PROCEDURES REQUIRED TO ESTABLISH THE COST
OF SECULAR AS DISTINGUISHED FROM RELIGIOUS EDUCATION.  IN ADDITION, THE
PENNSYLVANIA STATUTE HAS THE FURTHER DEFECT OF PROVIDING CONTINUING
FINANCIAL AID DIRECTLY TO THE CHURCH-RELATED SCHOOLS.  HISTORICALLY
GOVERNMENTAL CONTROL AND SURVEILLANCE MEASURES TEND TO FOLLOW CASH
GRANT PROGRAMS, AND HERE THE GOVERNMENT'S POST-AUDIT POWER TO INSPECT
THE FINANCIAL RECORDS OF CHURCH-RELATED SCHOOLS CREATES AN INTIMATE AND
CONTINUING RELATIONSHIP BETWEEN CHURCH AND STATE.  PP. 620-622. 

(C) POLITICAL DIVISION ALONG RELIGIOUS LINES WAS ONE OF THE EVILS AT
WHICH THE FIRST AMENDMENT AIMED, AND IN THESE PROGRAMS, WHERE
SUCCESSIVE AND PROBABLY PERMANENT ANNUAL APPROPRIATIONS THAT BENEFIT
RELATIVELY FEW RELIGIOUS GROUPS ARE INVOLVED, POLITICAL FRAGMENTATION
AND DIVISIVENESS ON RELIGIOUS LINES ARE LIKELY TO BE INTENSIFIED.  PP.
622-624. 

(D) UNLIKE THE TAX EXEMPTION FOR PLACES OF RELIGIOUS WORSHIP, UPHELD
IN WALZ V. TAX COMMISSION, 397 U.S. 664, WHICH WAS BASED ON A PRACTICE
OF 200 YEARS, THESE INNOVATIVE PROGRAMS HAVE SELF-PERPETUATING AND SELF
EXPANDING PROPENSITIES WHICH PROVIDE A WARNING SIGNAL AGAINST
ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION.  PP. 624-625. 

NO. 89, 310 F.SUPP.  35, REVERSED AND REMANDED; NOS. 569 AND 570,
316 F.SUPP.  112, AFFIRMED. 

BERGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH BLACK,
DOUGLAS, HARLAN, STEWART, MARSHALL (AS TO NOS. 569 AND 570), AND
BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED A CONCURRING OPINION, POST,
P. 625, IN WHICH BLACK J., JOINED, AND IN WHICH MARSHALL, J. (AS TO
NOS. 569 AND 570), JOINED, FILING A SEPARATE STATEMENT, POST, P. 642. 
BRENNAN, J., FILED A CONCURRING OPINION, POST, P. 642.  WHITE, J.,
FILED AN OPINION CONCURRING IN THE JUDMENT IN NO. 89 AND DISSENTING IN
NOS. 569 AND 570, POST, P. 661.  MARSHALL, J., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF NO. 89. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THESE TWO APPEALS RAISE QUESTIONS TO AS PENNSYLVANIA AND RHODE
ISLAND STATUTES PROVIDING STATE AID TO CHURCH-RELATED ELEMENTARY AND
SECONDARY SCHOOLS.  BOTH STATUTES ARE CHALLENGED AS VIOLATIVE OF THE
ESTABLISHMENT AND FREE EXERCISE CLAUSES OF THE FIRST AMENDMENT AND THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

PENNSYLVANIA HAS ADOPTED A STATUTORY PROGRAM THAT PROVIDES FINANCIAL
SUPPORT TO NONPUBLIC ELEMENTARY AND SECONDARY SCHOOLS BY WAY OF
REIMBURSEMENT FOR THE COST OF TEACHERS' SALARIES, TEXTBOOKS, AND
INSTRUCTIONAL MATERIALS IN SPECIFIED SECULAR SUBJECTS.  RHODE ISLAND
HAS ADOPTED A STATUTE UNDER WHICH THE STATE PAYS DIRECTLY TO TEACHERS
IN NONPUBLIC ELEMENTARY SCHOOLS A SUPPLEMENTAL 15% OF THEIR ANNUAL
SALARY.  UNDER EACH STATUTE STATE AID HAS BEEN GIVEN TO CHURCH-RELATED
EDUCATIONAL INSTITUTIONS.  WE HOLD THAT BOTH STATUTES ARE
UNCONSTITUTIONAL. 

        I

        THE RHODE ISLAND STATUTE. 

THE RHODE ISLAND SALARY SUPPLEMENT ACT /1/  WAS ENACTED IN 1969.  IT
RESTS ON THE LEGISLATIVE FINDING THAT THE QUALITY OF EDUCATION
AVAILABLE IN NONPUBLIC ELEMENTARY SCHOOLS HAS BEEN JEOPARDIZED BY THE
RAPIDLY RISING SALARIES NEEDED TO ATTRACT COMPETENT AND DEDICATED
TEACHERS.  THE ACT AUTHORIZES STATE OFFICIALS TO SUPPLEMENT THE
SALARIES OF TEACHERS OF SECULAR SUBJECTS IN NONPUBLIC ELEMENTARY
SCHOOLS BY PAYING DIRECTLY TO A TEACHER AN AMOUNT NOT IN EXCESS OF 15%
OF HIS CURRENT ANNUAL SALARY.  AS SUPPLEMENTED, HOWEVER, A NONPUBLIC
SCHOOL TEACHER'S SALARY CANNOT EXCEED THE MAXIMUM PAID TO TEACHERS IN
THE STATE'S PUBLIC SCHOOLS, AND THE RECIPIENT MUST BE CERTIFIED BY THE
STATE BOARD OF EDUCATION IN SUBSTANTIALLY THE SAME MANNER AS PUBLIC
SCHOOL TEACHERS. 

IN ORDER TO BE ELIGIBLE FOR THE RHODE ISLAND SALARY SUPPLEMENT, THE
RECIPIENT MUST TEACH IN A NONPUBLIC SCHOOL AT WHICH THE AVERAGE PER
PUPIL EXPENDITURE ON SECULAR EDUCATION IS LESS THAN THE AVERAGE IN THE
STATE'S PUBLIC SCHOOLS DURING A SPECIFIED PERIOD.  APPELLANT STATE
COMMISSIONER OF EDUCATION ALSO REQUIRES ELIGIBLE SCHOOLS TO SUBMIT
FINANCIAL DATA.  IF THIS INFORMATION INDICATES A PER-PUPIL EXPENDITURE
IN EXCESS OF THE STATUTORY LIMITATION, THE RECORDS OF THE SCHOOL IN
QUESTION MUST BE EXAMINED IN ORDER TO ASSESS HOW MUCH OF THE
EXPENDITURE IS ATTRIBUTABLE TO SECULAR EDUCATION AND HOW MUCH TO
RELIGIOUS ACTIVITY.  /2/ 

THE ACT ALSO REQUIRES THAT TEACHERS ELIGIBLE FOR SALARY SUPPLEMENTS
MUST TEACH ONLY THOSE SUBJECTS THAT ARE OFFERED IN THE STATE'S PUBLIC
SCHOOLS.  THEY MUST USE "ONLY TEACHING MATERIALS WHICH ARE USED IN THE
PUBLIC SCHOOLS."  FINALLY, ANY TEACHER APPLYING FOR A SALARY SUPPLEMENT
MUST FIRST AGREE IN WRITING "NOT TO TEACH A COURSE IN RELIGION FOR SO
LONG AS OR DURING SUCH TIME AS HE OR SHE RECEIVES ANY SALARY
SUPPLEMENTS" UNDER THE ACT. 

APPELLEES ARE CITIZENS AND TAXPAYERS OF RHODE ISLAND.  THEY BROUGHT
THIS SUIT TO HAVE THE RHODE ISLAND SALARY SUPPLEMENT ACT DECLARED
UNCONSTITUTIONAL AND ITS OPERATION ENJOINED ON THE GROUND THAT IT
VIOLATES THE ESTABLISHMENT AND AND FREE EXERCISE CLAUSES OF THE FIRST
AMENDMENT.  APPELLANTS ARE STATE OFFICIALS CHARGED WITH ADMINISTRATION
OF THE ACT, TEACHERS ELIGIBLE FOR SALARY SUPPLEMENTS UNDER THE ACT, AND
PARENTS OF CHILDREN IN CHURCH-RELATED ELEMENTARY SCHOOLS WHOSE TEACHERS
WOULD RECEIVE STATE SALARY ASSISTANCE. 

A THREE-JUDGE FEDERAL COURT WAS CONVENED PURSUANT TO 28 U.S.C. 2281,
2284.  IT FOUND THAT RHODE ISLAND'S NONPUBLIC ELEMENTARY SCHOOLS
ACCOMMODATED APPROXIMATELY 25% OF THE STATE'S PUPILS.  ABOUT 95% OF
THESE PUPILS ATTENDED SCHOOLS AFFILIATED WITH THE ROMAN CATHOLIC
CHURCH.  TO DATE SOME 250 TEACHERS HAVE APPLIED FOR BENEFITS UNDER THE
ACT.  ALL OF THEM ARE EMPLOYED BY ROMAN CATHOLIC SCHOOLS. 

THE COURT HELD A HEARING AT WHICH EXTENSIVE EVIDENCE WAS INTRODUCED
CONCERNING THE NATURE OF THE SECULAR INSTRUCTION OFFERED IN THE ROMAN
CATHOLIC SCHOOLS WHOSE TEACHERS WOULD BE ELIGIBLE FOR SALARY ASSISTANCE
UNDER THE ACT.  ALTHOUGH THE COURT FOUND THAT CONCERN FOR RELIGIOUS
VALUES DOES NOT NECESSARILY AFFECT THE CONTENT OF SECULAR SUBJECT, IT
ALSO FOUND THAT THE PAROCHIAL SCHOOL SYSTEM WAS "AN INTEGRAL PART OF
THE RELIGIOUS MISSION OF THE CATHOLIC CHURCH." 

THE DISTRICT COURT CONCLUDED THAT THE ACT VIOLATED THE ESTABLISHMENT
CLAUSE, HOLDING THAT IT FOSTERED "EXCESSIVE ENTANGLEMENT" BETWEEN
GOVERNMENT AND RELIGION.  IN ADDITION TWO JUDGES THOUGHT THAT THE ACT
HAD THE IMPERMISSIBLE EFFECT OF GIVING "SIGNIFICANT AID TO A RELIGIOUS
ENTERPRISE."  316 F.SUPP.  112.  WE AFFIRM. 

        THE PENNSYLVANIA STATUTE 

PENNSYLVANIA HAS ADOPTED A PROGRAM THAT HAS SOME BUT NOT ALL OF THE
FEATURES OF THE RHODE ISLAND PROGRAM.  THE PENNSYLVANIA NONPUBLIC
ELEMENTARY AND SECONDARY EDUCATION ACT /3/  WAS PASSED IN 1968 IN
RESPONSE TO A CRISIS THAT THE PENNSYLVANIA LEGISLATURE FOUND EXISTED IN
THE STATE'S NONPUBLIC SCHOOLS DUE TO RAPIDLY RISING COSTS.  THE STATUTE
AFFIRMATIVELY REFLECTS THE LEGISLATIVE CONCLUSION THAT THE STATE'S
EDUCATIONAL GOALS COULD APPROPRIATELY BE FULFILLED BY GOVERNMENT
SUPPORT OF "THOSE PURELY SECULAR EDUCATIONAL OBJECTIVES ACHIEVED
THROUGH NONPUBLIC EDUCATION . . . " 

THE STATUTE AUTHORIZES APPELLEE STATE SUPERINTENDENT OF PUBLIC
INSTRUCTION TO "PURCHASE" SPECIFIED "SECULAR EDUCATIONAL SERVICES" FROM
NONPUBLIC SCHOOLS.  UNDER THE "CONTRACTS" AUTHORIZED BY THE STATUTE,
THE STATE DIRECTLY REIMBURSES NONPUBLIC SCHOOLS SOLELY FOR THEIR ACTUAL
EXPENDITURES FOR TEACHERS' SALARIES, TEXTBOOKS, AND INSTRUCTIONAL
MATERIALS.  A SCHOOL SEEKING REIMBURSEMENT MUST MAINTAIN PRESCRIBED
ACCOUNTING PROCEDURES THAT IDENTIFY THE "SEPARATE" COST OF THE "SECULAR
EDUCATIONAL SERVICE."  THESE ACCOUNTS ARE SUBJECT TO STATE AUDIT.  THE
FUNDS FOR THIS PROGRAM WERE ORIGINALLY DERIVED FROM A NEW TAX ON HORSE
AND HARNESS RACING, BUT THE ACT IS NOW FINANCED BY A PORTION OF THE
STATE TAX ON CIGARETTES. 

THERE ARE SEVERAL SIGNIFICANT STATUTORY RESTRICTIONS ON STATE AID. 
REIMBURSEMENT IS LIMITED TO COURSES "PRESENTED IN THE CURRICULA OF THE
PUBLIC SCHOOLS."  IT IS FURTHER LIMITED "SOLELY" TO COURSES IN THE
FOLLOWING "SECULAR" SUBJECTS:  MATHEMATICS, MODERN FOREIGN LANGUAGES,
/4/  PHYSICAL SCIENCE, AND PHYSICAL EDUCATION.  TEXTBOOKS AND
INSTRUCTIONAL MATERIALS INCLUDED IN THE PROGRAM MUST BE APPROVED BY THE
STATE SUPERINTENDENT OF PUBLIC INSTRUCTION.  FINALLY, THE STATUTE
PROHIBITS REIMBURSEMENT FOR ANY COURSE THAT CONTAINS "ANY SUBJECT
MATTER EXPRESSING RELIGIOUS TEACHING, OR THE MORALS OR FORMS OF WORSHIP
OF ANY SECT." 

THE ACT WENT INTO EFFECT ON JULY 1, 1968, AND THE FIRST
REIMBURSEMENT PAYMENTS TO SCHOOLS WERE MADE ON SEPTEMBER 2, 1969.  IT
APPEARS THAT SOME $5 MILLION HAS BEEN EXPENDED ANNUALLY UNDER THE ACT. 
THE STATE HAS NOW ENTERED INTO CONTRACTS WITH SOME 1,181 NONPUBLIC
ELEMENTARY AND SECONDARY SCHOOLS WITH A STUDENT POPULATION OF SOME
535,215 PUPILS-- MORE THAN 20% OF THE TOTAL NUMBER OF STUDENTS IN THE
STATE.  MORE THAN 96% OF THESE PUPILS ATTEND CHURCH-RELATED SCHOOLS,
AND MOST OF THESE SCHOOLS ARE AFFILIATED WITH THE ROMAN CATHOLIC
CHURCH. 

APPELLANTS BROUGHT THIS ACTION IN THE DISTRICT COURT TO CHALLENGE
THE CONSTITUTIONALITY OF THE PENNSYLVANIA STATUTE.  THE ORGANIZATIONAL
PLAINTIFFS-APPELLANTS ARE ASSOCIATIONS OF PERSONS RESIDENT IN
PENNSYLVANIA DECLARING BELIEF IN THE SEPARATION OF CHURCH AND STATE;
INDIVIDUAL PLAINTIFFS-APPELLANTS ARE CITIZENS AND TAXPAYERS OF
PENNSYLVANIA.  APPELLANT LEMON, IN ADDITION TO BEING A CITIZEN AND A
TAXPAYER, IS A PARENT OF A CHILD ATTENDING PUBLIC SCHOOL IN
PENNSYLVANIA.  LEMON ALSO ALLEGES THAT HE PURCHASED A TICKET AT A RACE
TRACK AND THUS HAD PAID THE SPECIFIC TAX THAT SUPPORTS THE EXPENDITURES
UNDER THE ACT.  APPELLEES ARE STATE OFFICIALS WHO HAVE THE
RESPONSIBILITY FOR ADMINISTERING THE ACT.  IN ADDITION SEVEN CHURCH
RELATED SCHOOLS ARE DEFENDANTS-APPELLEES. 

A THREE-JUDGE FEDERAL COURT WAS CONVENED PURSUANT TO 28 U.S.C. 2281,
2284.  THE DISTRICT COURT HELD THAT THE INDIVIDUAL PLAINTIFFS
APPELLANTS HAD STANDING TO CHALLENGE THE ACT, 310 F.SUPP.  42.  THE
ORGANIZATIONAL PLAINTIFFS-APPELLANTS WERE DENIED STANDING UNDER FLAST
V. COHEN, 392 U.S. 83, 99, 101 (1968). 

THE COURT GRANTED APPELLEES' MOTION TO DISMISS THE COMPLAINT FOR
FAILURE TO STATE A CLAIM FOR RELIEF.  /5/  310 F.SUPP.  35.  IT HELD
THAT THE ACT VIOLATED NEITHER THE ESTABLISHMENT NOR THE FREE EXERCISE
CLAUSE, CHIEF JUDGE HASTIE DISSENTING.  WE REVERSE. 

        II 

IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1 (1947) THIS COURT
UPHELD A STATE STATUTE THAT REIMBURSED THE PARENTS OF PAROCHIAL SCHOOL
CHILDREN FOR BUS TRANSPORTATION EXPENSES.  THERE MR. JUSTICE BLACK,
WRITING FOR THE MAJORITY, SUGGESTED THAT THE DECISION CARRIED TO "THE
VERGE" OF FORBIDDEN TERRITORY UNDER THE RELIGION CLAUSES.  ID., AT 16. 
CANDOR COMPELS ACKNOWLEDGMENT, MOREOVER, THAT WE CAN ONLY DIMLY
PERCEIVE THE LINES OF DEMARCATION IN THIS EXTRAORDINARILY SENSITIVE
AREA OF CONSTITUTIONAL LAW. 

THE LANGUAGE OF THE RELIGION CLAUSES OF THE FIRST AMENDMENT IS AT
BEST OPAQUE, PARTICULARLY WHEN COMPARED WITH OTHER PORTIONS OF THE
AMENDMENT.  ITS AUTHORS DID NOT SIMPLY PROHIBIT THE ESTABLISHMENT OF A
STATE CHURCH OR A STATE RELIGION, AN AREA HISTORY SHOWS THEY REGARDED
AS VERY IMPORTANT AND FRAUGHT WITH GREAT DANGERS.  INSTEAD THEY
COMMANDED THAT THERE SHOULD BE "NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION."  A LAW MAY BE ONE "RESPECTING" THE FORBIDDEN OBJECTIVE WHILE
FALLING SHORT OF ITS TOTAL REALIZATION.  A LAW "RESPECTING" THE
PROSCRIBED RESULT, THAT IS, THE ESTABLISHMENT OF RELIGION, IS NOT
ALWAYS EASILY IDENTIFIABLE AS ONE VIOLATIVE OF THE CLAUSE.  A GIVEN LAW
MIGHT NOT ESTABLISH A STATE RELIGION BUT NEVERTHELESS BE ONE
"RESPECTING" THAT END IN THE SENSE OF BEING A STEP THAT COULD LEAD TO
SUCH ESTABLISHMENT AND HENCE OFFEND THE FIRST AMENDMENT. 

IN THE ABSENCE OF PRECISELY STATED CONSTITUTIONAL PROHIBITIONS, WE
MUST DRAW LINES WITH REFERENCE TO THE THREE MAIN EVILS AGAINST WHICH
THE ESTABLISHMENT CLAUSE WAS INTENDED TO AFFORD PROTECTION:
"SPONSORSHIP, FINANCIAL SUPPORT, AND ACTIVE INVOLVEMENT OF THE
SOVEREIGN IN RELIGIOUS ACTIVITY."  WALZ V. TAX COMMISSION, 397 U.S.
664, 668 (1970). 

EVERY ANALYSIS IN THIS AREA MUST BEGIN WITH CONSIDERATION OF THE
CUMULATIVE CRITERIA DEVELOPED BY THE COURT OVER MANY YEARS.  THREE SUCH
TESTS MAY BE GLEANED FROM OUR CASES.  FIRST, THE STATUTE MUST HAVE A
SECULAR LEGISLATIVE PURPOSE; SECOND, ITS PRINCIPAL OR PRIMARY EFFECT
MUST BE ONE THAT NEITHER ADVANCES NOR INHIBITS RELIGION, BOARD OF
EDUCATION V. ALLEN, 392 U.S. 236, 243 (1968); FINALLY, THE STATUTE MUST
NOR FOSTER "AN EXCESSIVE GOVERNMENT ENTANGLEMENT WITH RELIGION."  WALZ,
SUPRA, AT 674. 

INQUIRY INTO THE LEGISLATIVE PURPOSES OF THE PENNSYLVANIA AND RHODE
ISLAND STATUTES AFFORDS NO BASIS FOR A CONCLUSION THAT THE LEGISLATIVE
INTENT WAS TO ADVANCE RELIGION.  ON THE CONTRARY, THE STATUTES
THEMSELVES CLEARLY STATE THAT THEY ARE INTENDED TO ENHANCE THE QUALITY
OF THE SECULAR EDUCATION IN ALL SCHOOLS COVERED BY THE COMPULSORY
ATTENDANCE LAWS.  THERE IS NO REASON TO BELIEVE THE LEGISLATURES MEANT
ANYTHING ELSE.  A STATE ALWAYS HAS A LEGITIMATE CONCERN FOR MAINTAINING
MINIMUM STANDARDS IN ALL SCHOOLS IT ALLOWS TO OPERATE.  AS IN ALLEN, WE
FIND NOTHING HERE THAT UNDERMINES THE STATED LEGISLATIVE INTENT; IT
MUST THEREFORE BE ACCORDED APPROPRIATE DEFERENCE. 

IN ALLEN THE COURT ACKNOWLEDGED THAT SECULAR AND RELIGIOUS TEACHINGS
WERE NOT NECESSARILY SO INTERTWINED THAT SECULAR TEXTBOOKS FURNISHED TO
STUDENTS BY THE STATE WERE IN FACT INSTRUMENTAL IN THE TEACHING OF
RELIGION.  392 U.S.,AT 248.  THE LEGISLATURES OF RHODE ISLAND AND
PENNSYLVANIA HAVE CONCLUDED THAT SECULAR AND RELIGIOUS EDUCATION ARE
IDENTIFIABLE AND SEPARABLE.  IN THE ABSTRACT WE HAVE NO QUARREL WITH
THIS CONCLUSION. 

THE TWO LEGISLATURES, HOWEVER, HAVE ALSO RECOGNIZED THAT CHURCH
RELATED ELEMENTARY AND SECONDARY SCHOOLS HAVE A SIGNIFICANT RELIGIOUS
MISSION AND THAT A SUBSTANTIAL PORTION OF THEIR ACTIVITIES IS
RELIGIOUSLY ORIENTED.  THEY HAVE THEREFORE SOUGHT TO CREATE STATUTORY
RESTRICTIONS DESIGNED TO GUARANTEE THE SEPARATION BETWEEN SECULAR AND
RELIGIOUS EDUCATIONAL FUNCTIONS AND TO ENSURE THAT STATE FINANCIAL AID
SUPPORTS ONLY THE FORMER.  ALL THESE PROVISIONS ARE PRECAUTIONS TAKEN
IN CANDID RECOGNITION THAT THESE PROGRAMS APPROACHED, EVEN IF THEY DID
NOT INTRUDE UPON, THE FORBIDDEN AREAS UNDER THE RELIGION CLAUSES.  WE
NEED NOT DECIDE WHETHER THESE LEGISLATIVE PRECAUTIONS RESTRICT THE
PRINCIPAL OR PRIMARY EFFECT OF THE PROGRAMS TO THE POINT WHERE THEY DO
NOT OFFEND THE RELIGION CLAUSES, FOR WE CONCLUDE THAT THE CUMULATIVE
IMPACT OF THE ENTIRE RELATIONSHIP ARISING UNDER THE STATUTES IN EACH
STATE INVOVLES EXCESSIVE ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION. 

        III 

IN WALZ V. TAX COMMISSION, SUPRA, THE COURT UPHELD STATE TAX
EXEMPTIONS FOR REAL PROPERTY OWNED BY RELIGIOUS ORGANIZATIONS AND USED
FOR RELIGIOUS WORSHIP.  THAT HOLDING, HOWEVER, TENDED TO CONFINE RATHER
THAN ENLARGE THE AREA OF PERMISSIBLE STATE INVOLVEMENT WITH RELIGIOUS
INSTITUTIONS BY CALLING FOR CLOSE SCRUTINY OF THE DEGREE OF
ENTANGLEMENT INVOLVED IN THE RELATIONSHIP.  THE OBJECTIVE IS TO
PREVENT, AS FAR AS POSSIBLE, THE INTRUSION OF EITHER INTO THE PRECINCTS
OF THE OTHER.    OUR PRIOR HOLDINGS DO NOT CALL FOR TOTAL SEPARATION
BETWEEN CHURCH AND STATE; TOTAL SEPARATION IS NOT POSSIBLE IN AN
ABSOLUTE SENSE.  SOME RELATIONSHIP BETWEEN GOVERNMENT AND RELIGIOUS
ORGANIZATION IS INEVITABLE.  ZORACH V. CLAUSON, 343 U.S. 306, 312
(1952); SHERBERT V. VERNER, 374 U.S. 398, 422 (1963) (HARLAN, J.,
DISSENTING).  FIRE INSPECTIONS, BUILDING AND ZONING REGULATIONS, AND
STATE REQUIREMENTS UNDER COMPULSORY SCHOOL-ATTENDANCE LAWS ARE EXAMPLES
OF NECESSARY AND PERMISSIBLE CONTACTS.  INDEED, UNDER THE STATUTORY
EXEMPTION BEFORE US IN WALZ, THE STATE HAD A CONTINUING BURDEN TO
ASCERTAIN THAT THE EXEMPT PROPERTY WAS IN FACT BEING USED FOR RELIGIOUS
WORSHIP.  JUDICIAL CAVEATS AGAINST ENTANGLEMENT MUST RECOGNIZE THAT THE
LINE OF SEPARATION, FAR FROM BEING A "WALL," IS A BLURRED, INDISTINCT,
AND VARIABLE BARRIER DEPENDING ON ALL THE CIRCUMSTANCES OF A PARTICULAR
RELATIONSHIP. 

THIS IS NOT TO SUGGEST, HOWEVER, THAT WE ARE TO ENGAGE IN A
LEGALISTIC MINUET IN WHICH PRECISE RULES AND FORMS MUST GOVERN.  A TRUE
MINUET IS A MATTER OF PURE FORM AND STYLE, THE OBSERVANCE OF WHICH IS
ITSELF THE SUBSTANTIVE END.  HERE WE EXAMINE THE FORM OF THE
RELATIONSHIP FOR THE LIGHT THAT IT CASTS ON THE SUBSTANCE. 

IN ORDER TO DETERMINE WHETHER THE GOVERNMENT ENTANGLEMENT WITH
RELIGION IS EXCESSIVE, WE MUST EXAMINE THE CHARACTER AND PURPOSES OF
THE INSTITUTIONS THAT ARE BENEFITED, THE NATURE OF THE AID THAT THE
STATE PROVIDES, AND THE RESULTING RELATIONSHIP BETWEEN THE GOVERNMENT
AND THE RELIGIOUS AUTHORITY.  MR. JUSTICE HARLAN, IN A SEPARATE OPINION
IN WALZ, SUPRA, ECHOED THE CLASSIC WARNING AS TO "PROGRAMS, WHOSE VERY
NATURE IS APT TO ENTANGLE THE STATE IN DETAILS OF ADMINISTRATION . . .
"  ID., AT 695.  HERE WE FIND THAT BOTH STATUTES FOSTER AN
IMPERMISSIBLE DEGREE OF ENTANGLEMENT. 

        (A)  RHODE ISLAND PROGRAM 

THE DISTRICT COURT MADE EXTENSIVE FINDINGS ON THE GRAVE POTENTIAL
FOR EXCESSIVE ENTANGLEMENT THAT INHERES IN THE RELIGIOUS CHARACTER AND
PURPOSE OF THE ROMAN CATHOLIC ELEMENTARY SCHOOLS OF RHODE ISLAND, TO
DATE THE SOLE BENEFICIARIES OF THE RHODE ISLAND SALARY SUPPLEMENT ACT. 

THE CHURCH SCHOOLS INVOLVED IN THE PROGRAM ARE LOCATED CLOSE TO
PARISH CHURCHES.  THIS UNDERSTANDABLY PERMITS CONVENIENT ACCESS FOR
RELIGIOUS EXERCISES SINCE INSTRUCTION IN FAITH AND MORALS IS PART OF
THE TOTAL EDUCATIONAL PROCESS.  THE SCHOOL BUILDINGS CONTAIN
IDENTIFYING RELIGIOUS SYMBOLS SUCH AS CROSSES ON THE EXTERIOR AND
CRUCIFIXES, AND RELIGIOUS PAINTINGS AND STATUTES EITHER IN THE
CLASSROOMS OR HALLWAYS.  ALTHOUGH ONLY APPROXIMATELY 30 MINUTES A DAY
ARE DEVOTED TO DIRECT RELIGIOUS INSTRUCTION, THERE ARE RELIGIOUSLY
ORIENTED EXTRACURRICULAR ACTIVITIES.  APPROXIMATELY TWO-THIRDS OF THE
TEACHERS IN THESE SCHOOLS ARE NUNS OF VARIOUS RELIGIOUS ORDERS.  THEIR
DEDICATED EFFORTS PROVIDE AN ATMOSPHERE IN WHICH RELIGIOUS INSTRUCTION
AND RELIGIOUS VOCATIONS ARE NATURAL AND PROPER PARTS OF LIFE IN SUCH
SCHOOLS.  INDEED, AS THE DISTRICT COURT FOUND, THE ROLE OF TEACHING
NUNS, IN ENHANCING THE RELIGIOUS ATMOSPHERE HAS LED THE PAROCHIAL
SCHOOL AUTHORITIES TO ATTEMPT TO MAINTAIN A ONE-TO-ONE RATIO BETWEEN
NUNS AND LAY TEACHERS IN ALL SCHOOLS RATHER THAN TO PERMIT SOME TO BE
STAFFED ALMOST ENTIRELY BY LAY TEACHERS. 

ON THE BASIS OF THESE FINDINGS THE DISTRICT COURT CONCLUDED THAT THE
PAROCHIAL SCHOOLS CONSTITUTED "AN INTEGRAL PART OF THE RELIGIOUS
MISSION OF THE CATHOLIC CHURCH."  THE VARIOUS CHARACTERISTICS OF THE
SCHOOLS MAKE THEM "A POWERFUL VEHICLE FOR TRANSMITTING THE CATHOLIC
FAITH TO THE NEXT GENERATION."  THIS PROCESS OF INCULCATING RELIGIOUS
DOCTRINE IS, OF COURSE, ENHANCED BY THE IMPRESSIONABLE AGE OF THE
PUPILS, IN PRIMARY SCHOOLS PARTICULARLY.  IN SHORT, PAROCHIAL SCHOOLS
INVOLVE SUBSTANTIAL RELIGIOUS ACTIVITY AND PURPOSE.  /6/ 

THE SUBSTANTIAL RELIGIOUS CHARACTER OF THESE CHURCH-RELATED SCHOOLS
GIVES RISE TO ENTANGLING CHURCH-STATE RELATIONSHIPS OF THE KIND THE
RELIGION CLAUSES SOUGHT TO AVOID.  ALTHOUGH THE DISTRICT COURT FOUND
THAT CONCERN FOR RELIGIOUS VALUES DID NOT INEVITABLY OR NECESSARILY
INTRUDE INTO THE CONTENT OF SECULAR SUBJECTS, THE CONSIDERABLE
RELIGIOUS ACTIVITIES OF THESE SCHOOLS LED THE LEGISLATURE TO PROVIDE
FOR CAREFUL GOVERNMENTAL CONTROLS AND SURVEILLANCE BY STATE AUTHORITIES
IN ORDER TO ENSURE THAT STATE AID SUPPORTS ONLY SECULAR EDUCATION. 

THE DANGERS AND CORRESPONDING ENTANGLEMENTS ARE ENHANCED BY THE
PARTICULAR FORM OF AID THAT THE RHODE ISLAND ACT PROVIDES.  OUR
DECISIONS FROM EVERSON TO ALLEN HAVE PERMITTED THE STATES TO PROVIDE
CHURCH-RELATED SCHOOLS WITH SECULAR, NEUTRAL, OR NONIDEOLOGICAL
SERVICES, FACILITIES, OR MATERIALS.  BUS TRANSPORTATION, SCHOOL
LUNCHES, PUBLIC HEALTH SERVICES, AND SECULAR TEXTBOOKS SUPPLIED IN
COMMON TO ALL STUDENTS WERE NOT THOUGHT TO OFFEND THE ESTABLISHMENT
CLAUSE.  WE NOTE THAT THE DISSENTERS IN ALLEN SEEMED CHIEFLY CONCERNED
WITH THE PRAGMATIC DIFFICULTIES INVOLVED IN ENSURING THE TRULY SECULAR
CONTENT OF THE TEXTBOOKS PROVIDED AT STATE EXPENSE. 

IN ALLEN THE COURT REFUSED TO MAKE ASSUPTIONS, ON A MEAGER RECORD,
ABOUT THE RELIGIOUS CONTENT OF THE TEXTBOOKS THAT THE STATE WOULD BE
ASKED TO PROVIDE.  WE CANNOT, HOWEVER, REFUSE HERE TO RECOGNIZE THAT
TEACHERS HAVE A SUBSTANTIALLY DIFFERENT IDEOLOGICAL CHARACTER FROM
BOOKS.  IN TERMS OF POTENTIAL FOR INVOLVING SOME ASPECT OF FAITH OR
MORALS IN SECULAR SUBJECTS, A TEXTBOOK'S CONTENT IS ASCERTAINABLE, BUT
A TEACHER'S HANDLING OF A SUBJECT IS NOT.  WE CANNOT IGNORE THE DANGER
THAT A TEACHER UNDER RELIGIOUS CONTROL AND DISCIPLINE POSES TO THE
SEPARATION OF THE RELIGIOUS FROM THE PURELY SECULAR ASPECTS OF
PRECOLLEGE EDUCATION.  THE CONFLICT OF FUNCTIONS INHERES IN THE
SITUATION. 

IN OUR VIEW THE RECORD SHOWS THESE DANGERS ARE PRESENT TO A
SUBSTANTIAL DEGREE.  THE RHODE ISLAND ROMAN CATHOLIC ELEMENTARY SCHOOLS
ARE UNDER THE GENERAL SUPERVISION OF THE BISHOP OF PROVIDENCE AND HIS
APPOINTED REPRESENTATIVE, THE DIOCESAN SUPERINTENDENT OF SCHOOLS.  IN
MOST CASES, EACH INDIVIDUAL PARISH, HOWEVER, ASSUMES THE ULTIMATE
FINANCIAL RESPONSIBILITY FOR THE SCHOOL, WITH THE PARISH PRIEST
AUTHORIZING THE ALLOCATION OF PARISH FUNDS.  WITH ONLY TWO EXCEPTIONS,
SCHOOL PRINCIPALS ARE NUNS APPOINTED EITHER BY THE SUPERINTENDENT OR
THE MOTHER PROVINCIAL OF THE ORDER WHOSE MEMBERS STAFF THE SCHOOL.  BY
1969 LAY TEACHERS CONSTITUTED MORE THAN A THIRD OF ALL TEACHERS IN THE
PAROCHIAL ELEMENTARY SCHOOLS, AND THEIR NUMBER IS GROWING.  THEY ARE
FIRST INTERVIEWED BY THE SUPERINTENDENT'S OFFICE AND THEN BY THE SCHOOL
PRINCIPAL.  THE CONTRACTS ARE SIGNED BY THE PARISH PRIEST, AND HE
RETAINS SOME DISCRETION IN NEGOTIATING SALARY LEVELS.  RELIGIOUS
AUTHORITY NECESSARILY PERVADES THE SCHOOL SYSTEM 

THE SCHOOLS ARE GOVERENED BY THE STANDARDS SET FORTH IN "HANDBOOK OF
SCHOOL REGULATIONS," WHICH HAS THE FORCE OF SYNODAL LAW IN THE
DIOCESE.  IT EMPHASIZES THE ROLE AND IMPORTANCE OF THE TEACHER IN
PAROCHIAL SCHOOLS:  "THE PRIME FACTOR FOR THE SUCCESS OR THE FAILURE OF
THE SCHOOL IS THE SPIRIT AND PERSONALITY, AS WELL AS THE PROFESSIONAL
COMPETENCY, OF THE TEACHER . . . "  "THE PRIME FACTOR FOR THE SUCCESS
OR THE FAILURE OF THE SCHOOL IS THE SPIRIT AND AND PERSONALITY, AS WELL
AS THE PROFESSIONAL COMPETENCY, OF THE TEACHER . . . "  THE HANDBOOK
ALSO STATES THAT:  "RELIGIOUS FORMATION IS NOT CONFINED TO FORMAL
COURSES; NOR IS IT RESTRICTED TO A SINGLE SUBJECT AREA."  FINALLY, THE
HANDBOOK ADVISES TEACHERS TO STIMULATE INTEREST IN RELIGIOUS VOCATIONS
AND MISSIONARY WORK.  GIVEN THE MISSION OF THE CHURCH SCHOOL, THESE
INSTRUCTIONS ARE CONSISTENT AND LOGICAL. 

SEVERAL TEACHERS TESTIFIED, HOWEVER, THAT THEY DID NOT INJECT
RELIGION INTO THEIR SECULAR CLASSES.  AND THE DISTRICT COURT FOUND THAT
RELIGIOUS VALUES DID NOT NECESSARILY AFFECT THE CONTENT OF THE SECULAR
INSTRUCTION.  BUT WHAT HAS BEEN RECOUNTED SUGGESTS THE POTENTIAL IF NOT
ACTUAL HAZARDS OF THIS FORM OF STATE AID.  THE TEACHER IS EMPLOYED BY A
RELIGIOUS ORGANIZATION, SUBJECT TO THE DIRECTION AND DISCIPLINE OF
RELIGIOUS AUTHORITIES, AND WORKS IN A SYSTEM DEDICATED TO REARING
CHILDREN IN A PARTICULAR FAITH.  THESE CONTROLS ARE NOT LESSENED BY THE
FACT THAT MOST OF THE LAY TEACHERS ARE OF THE CATHOLIC FAITH. 
INEVITABLY SOME OF A TEACHER'S RESPONSIBILITIES HOVER ON THE BORDER
BETWEEN SECULAR AND RELIGIOUS ORIENTATION. 

WE NEED NOT AND DO NOT ASSUME THAT TEACHERS IN PAROCHIAL SCHOOLS
WILL BE GUILTY OF BAD FAITH OR ANY CONSCIOUS DESIGN TO EVADE THE
LIMITATIONS IMPOSED BY THE STATUTE AND THE FIRST AMENDMENT.  WE SIMPLY
RECOGNIZE THAT A DEDICATED RELIGIOUS PERSON, TEACHING IN A SCHOOL
AFFILIATED WITH HIS OR HER FAITH AND OPERATED TO INCULCATE ITS TENETS,
WILL INEVITABLY EXPERIENCE GREAT DIFFICULTY IN REMAINING RELIGIOUSLY
NEUTRAL.  DOCTRINES AND FAITH ARE NOT INCULCATED OR ADVANCED BY
NEUTRALS.  WITH THE BEST OF INTENTIONS SUCH A TEACHER WOULD FIND IT
HARD TO MAKE A TOTAL SEPARATION BETWEEN SECULAR TEACHING AND RELIGIOUS
DOCTRINE.  WHAT WOULD APPEAR TO SOME TO BE ESSENTIAL TO GOOD
CITIZENSHIP MIGHT WELL FOR OTHERS BORDER ON OR CONSTITUTE INSTRUCTION
IN RELIGION.  FURTHER DIFFICULTIES ARE INHERENT IN THE COMBINATION OF
RELIGIOUS DISCIPLINE AND THE POSSIBILITY OF DISAGREEMENT BETWEEN
TEACHER AND RELIGIOUS AUTHORITIES OVER THE MEANING OF THE STATUTORY
RESTRICTIONS. 

WE DO NOT ASSUME, HOWEVER, THAT PAROCHIAL SCHOOL TEACHERS WILL BE
UNSUCCESSFUL IN THEIR ATTEMPTS TO SEGREGATE THEIR RELIGIOUS BELIEFS
FROM THEIR SECULAR EDUCATIONAL RESPONSIBILITIES.  BUT THE POTENTIAL FOR
IMPERMISSIBLE FOSTERING OF RELIGION IS PRESENT.  THE RHODE ISLAND
LEGISLATURE HAS NOT, AND COULD NOT, PROVIDE STATE AID ON THE BASIS OF A
MERE ASSUMPTION THAT SECULAR TEACHERS UNDER RELIGIOUS DISCIPLINE CAN
AVOID CONFLICTS.  THE STATE MUST BE CERTAIN, GIVEN THE RELIGION
CLAUSES, THAT SUBSIDIZED TEACHERS DO NOT INCULCATE RELIGION-- INDEED
THE STATE HERE HAS UNDERTAKEN TO DO SO.  TO ENSURE THAT NO TRESPASS
OCCURS, THE STATE HAS THEREFORE CAREFULLY CONDITIONED ITS AID WITH
PERVASIVE RESTRICTIONS.  AN ELIGIBLE RECIPIENT MUST TEACH ONLY THOSE
COURSES THAT ARE OFFERED IN THE PUBLIC SCHOOLS AND USE ONLY THOSE TEXTS
AND MATERIALS THAT ARE FOUND IN THE PUBLIC SCHOOLS.  IN ADDITION THE
TEACHER MUST NOT ENGAGE IN TEACHING ANY COURSE IN RELIGION. 

A COMPREHENSIVE, DISCRIMINATING, AND CONTINUING STATE SURVEILLANCE
WILL INEVITABLY BE REQUIRED TO ENSURE THAT THESE RESTRICTIONS ARE
OBEYED AND THE FIRST AMENDMENT OTHERWISE RESPECTED.  UNLIKE A BOOK, A
TEACHER CANNOT BE INSPECTED ONCE SO AS TO DETERMINE THE EXTENT AND
INTENT OF HIS OR HER PERSONAL BELIEFS AND SUBJECTIVE ACCEPTANCE OF THE
LIMITATIONS IMPOSED BY THE FIRST AMENDMENT.  THESE PROPHYLACTIC
CONTACTS WILL INVOLVE EXCESSIVE AND ENDURING ENTANGLEMENT BETWEEN STATE
AND CHURCH. 

THERE IS ANOTHER AREA OF ENTANGLEMENT IN THE RHODE ISLAND PROGRAM
THAT GIVES CONCERN.  THE STATUTE EXCLUDES TEACHERS EMPLOYED BY
NONPUBLIC SCHOOLS WHOSE AVERAGE PER-PUPIL EXPENDITURES ON SECULAR
EDUCATION EQUAL OR EXCEED THE COMPARABLE FIGURES FOR PUBLIC SCHOOLS. 
IN THE EVENT THAT THE TOTAL EXPENDITURES OF AN OTHERWISE ELIGIBLE
SCHOOL EXCEED THIS NORM, THE PROGRAM REQUIRES THE GOVERNMENT TO EXAMINE
THE SCHOOL'S RECORDS IN ORDER TO DETERMINE HOW MUCH OF THE TOTAL
EXPENDITURES IS ATTRIBUTABLE TO SECULAR EDUCATION AND HOW MUCH TO
RELIGIOUS ACTIVITY.  THIS KIND OF STATE INSPECTION AND EVALUATION OF
THE RELIGIOUS CONTENT OF A RELIGIOUS ORGANIZATION IS FRAUGHT WITH THE
SORT OF ENTANGLEMENT THAT THE CONSTITUTION FORBIDS.  IT IS A
RELATIONSHIP PREGNANT WITH DANGERS OF EXCESSIVE GOVERNMENT DIRECTION OF
CHURCH SCHOOLS AND HENCE OF CHURCHES.  THE COURT NOTED "THE HAZARDS OF
GOVERNMENT SUPPORTING CHURCHES" IN WALZ V. TAX COMMISSION, SUPRA, AT
675, AND WE CANNOT IGNORE HERE THE DANGER THAT PERVASIVE MODERN
GOVERNMENTAL POWER WILL ULTIMATELY INTRUDE ON RELIGION AND THUS
CONFLICT WITH THE RELIGION CLAUSES. 

        (B)  PENNSYLVANIA PROGRAM 

THE PENNSYLVANIA STATUTE ALSO PROVIDES STATE AID TO CHURCH-RELATED
SCHOOLS FOR TEACHERS' SALARIES.  THE COMPLAINT DESCRIBES AN EDUCATIONAL
SYSTEM THAT IS VERY SIMILAR TO THE ONE EXISTING IN RHODE ISLAND. 
ACCORDING TO THE ALLEGATIONS, THE CHURCH-RELATED ELEMENTARY AND
SECONDARY SCHOOLS ARE CONTROLLED BY RELIGIOUS ORGANIZATIONS, HAVE THE
PURPOSE OF PROPAGATING AND PROMOTING A PARTICULAR RELIGIOUS FAITH, AND
CONDUCT THEIR OPERATIONS TO FULFILL THAT PURPOSE.  SINCE THIS COMPLAINT
WAS DISMISSED FOR FAILURE TO STATE A CLAIM FOR RELIEF, WE MUST ACCEPT
THESE ALLEGATIONS AS TRUE FOR PURPOSES OF OUR REVIEW. 

AS WE NOTED EARLIER, THE VERY RESTRICTIONS AND SURVEILLANCE
NECESSARY TO ENSURE THAT TEACHERS PLAY A STRICTLY NONIDEOLOGICAL ROLE
GIVE RISE TO ENTANGLEMENTS BETWEEN CHURCH AND STATE.  THE PENNSYLVANIA
STATUTE, LIKE THAT OF RHODE ISLAND, FOSTERS THIS KIND OF RELATIONSHIP. 
REIMBURSEMENT IS NOT ONLY LIMITED TO COURSES OFFERED IN THE PUBLIC
SCHOOLS AND MATERIALS APPROVED BY STATE OFFICIALS, BUT THE STATUTE
EXCLUDES "ANY SUBJECT MATTER EXPRESSING RELIGIOUS TEACHING, OR THE
MORALS OR FORMS OF WORSHIP OF ANY SECT."  IN ADDITION, SCHOOLS SEEKING
REIMBURSEMENT MUST MAINTAIN ACCOUNTING PROCEDURES THAT REQUIRE THE
STATE TO ESTABLISH THE COST OF THE SECULAR AS DISTINGUISHED FROM THE
RELIGIOUS INSTRUCTION. 

THE PENNSYLVANIA STATUTE, MOREOVER, HAS THE FURTHER DEFECT OF
PROVIDING STATE FINANCIAL AID DIRECTLY TO THE CHURCH-RELATED SCHOOL. 
THIS FACTOR DISTINGUISHES BOTH EVERSON AND ALLEN, FOR IN BOTH THOSE
CASES THE COURT WAS CAREFUL TO POINT OUT THAT STATE AID WAS PROVIDED TO
THE STUDENT AND HIS PARENTS-- NOT TO THE CHURCH-RELATED SCHOOL.  BOARD
OF EDUCATION V. ALLEN, SUPRA, AT 243-244; EVERSON V. BOARD OF
EDUCATION, SUPRA, AT 18.  IN WALZ V. TAX COMMISSION, SUPRA, AT 675, THE
COURT WARNED OF THE DANGERS OF DIRECT PAYMENTS TO RELIGIOUS
ORGANIZATIONS:     "OBVIOUSLY A DIRECT MONEY SUBSIDY WOULD BE A
RELATIONSHIP PREGNANT WITH INVOLVEMENT AND, AS WITH MOST GOVERNMENTAL
GRANT PROGRAMS, COULD ENCOMPASS SUSTAINED AND DETAILED ADMINISTRATIVE
RELATIONSHIPS FOR ENFORCEMENT OF STATUTORY OR ADMINISTRATIVE STANDARDS
. . . " 

THE HISTORY OF GOVERNMENT GRANTS OF A CONTINUING CASH SUBSIDY
INDICATES THAT SUCH PROGRAMS HAVE ALMOST ALWAYS BEEN ACCOMPANIED BY
VARYING MEASURES OF CONTROL AND SURVEILLANCE.  THE GOVERNMENT CASH
GRANTS BEFORE US NOW PROVIDE NO BASIS FOR PREDICTING THAT COMPREHENSIVE
MEASURES OF SURVEILLANCE AND CONTROLS WILL NOT FOLLOW.  IN PARTICULAR
THE GOVERNMENT'S POST-AUDIT POWER TO INSPECT AND EVALUATE A CHURCH
RELATED SCHOOLS FINANCIAL RECORDS AND TO DETERMINE WHICH EXPENDITURES
ARE RELIGIOUS AND WHICH ARE SECULAR CREATES AN INTIMATE AND CONTINUING
RELATIONSHIP BETWEEN CHURCH AND STATE. 

        IV 

A BROADER BASE OF ENTANGLEMENT OF YET A DIFFERENT CHARACTER IS
PRESENTED BY THE DIVISIVE POLITICAL POTENTIAL OF THESE STATE PROGRAMS. 
IN A COMMUNITY WHERE SUCH A LARGE NUMBER OF PUPILS ARE SERVED BY CHURCH
RELATED SCHOOLS, IT CAN BE ASSUMED THAT STATE ASSISTANCE WILL ENTAIL
CONSIDERABLE POLITICAL ACTIVITY.  PARTISANS OF PAROCHIAL SCHOOLS,
UNDERSTANDABLY CONCERNED WITH RISING COSTS AND SINCERELY DEDICATED TO
BOTH THE RELIGIOUS AND SECULAR EDUCATIONAL MISSIONS OF THEIR SCHOOLS,
WILL INEVITABLY CHAMPION THIS CAUSE AND PROMOTE POLITICAL ACTION TO
ACHIEVE THEIR GOALS.  THOSE WHO OPPOSE STATE AID, WHETHER FOR
CONSTITUTIONAL, RELIGIOUS, OR FISCAL REASONS, WILL INEVITABLY RESPOND
AND EMPLOY ALL OF THE USUAL POLITICAL CAMPAIGN TECHNIQUES TO PREVAIL. 
CONDIDATES WILL BE FORCED TO DECLARE AND VOTERS TO CHOOSE.  IT WOULD BE
UNREALISTIC TO IGNORE THE FACT THAT MANY PEOPLE CONFRONTED WITH ISSUES
OF THIS KIND WILL FIND THEIR VOTES ALIGNED WITH THEIR FAITH. 

ORDINARILY POLITICAL DEBATE AND DIVISION, HOWEVER VIGOROUS OR EVEN
PARTISAN, ARE NORMAL AND HEALTHY MANIFESTATIONS OF OUR DEMOCRATIC
SYSTEM OF GOVERNMENT, BUT POLITICAL DIVISION ALONG RELIGIOUS LINES WAS
ONE OF THE PRINCIPAL EVILS AGAINST WHICH THE FIRST AMENDMENT WAS
INTENDED TO PROTECT.  FREUND, COMMENT, PUBLIC AID TO PAROCHIAL SCHOOLS,
82 HARV.L.REV.  1680, 1692 (1969).  THE POTENTIAL DIVISIVENESS OF SUCH
CONFLICT IS A THREAT TO THE NORMAL POLITICAL PROCESS.  WALZ V. TAX
COMMISSION, SUPRA, AT 695 (SEPARATE OPINION OF HARLAN, J.).  SEE ALSO
BOARD OF EDUCATION V. ALLEN, 392 U.S.,AT 249 (HARLAN, J., CONCURRING);
ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203, 307 (1963) (GOLDBERT
J., CONCURRING).  TO HAVE STATES OR COMMUNITIES DIVIDE ON THE ISSUES
PRESENTED BY STATE AID TO PAROCHIAL SCHOOLS WOULD TEND TO CONFUSE AND
OBSCURE OTHER ISSUES OF GREAT URGENCY.  WE HAVE AN EXPANDING ARRAY OF
VEXING ISSUES, LOCAL AND NATIONAL, DOMESTIC AND INTERNATIONAL, TO
DEBATE AND DIVIDE ON.  IT CONFLICTS WITH OUR WHOLE HISTORY AND
TRADITION TO PERMIT QUESTIONS OF THE RELIGION CLAUSES TO ASSUME SUCH
IMPORTANCE IN OUR LEGISLATURES AND IN OUR ELECTIONS THAT THEY COULD
DIVERT ATTENTION FROM THE MYRIAD ISSUES AND PROBLEMS THAT CONFRONT
EVERY LEVEL OF GOVERNMENT.  THE HIGHWAYS OF CHURCH AND STATE
RELATIONSHIPS ARE NOT LIKELY TO BE ONE-WAY STREETS, AND THE
CONSTITUTION'S AUTHORS SOUGHT TO PROTECT RELIGIOUS WORSHIP FROM THE
PERVASIVE POWER OF GOVERNMENT.  THE HISTORY OF MANY COUNTRIES ATTEST TO
THE HAZARDS OF RELIGION'S INTRUDING INTO THE POLITICAL ARENA OR OF
POLITICAL POWER INTRUDING INTO THE LEGITIMATE AND FREE EXERCISE OF
RELIGIOUS BELIEF. 

OF COURSE, AS THE COURT NOTED IN WALZ, "(ADHERENTS OF PARTICULAR
FAITHS AND INDIVIDUAL CHURCHES FREQUENTLY TAKE STRONG POSITIONS ON
PUBLIC ISSUES."  WALZ V. TAX COMMISSION, SUPRA, AT 670.  WE COULD NOT
EXPECT OTHERWISE, FOR RELIGIOUS VALUES PERVADE THE FABRIC OF OUR
NATIONAL LIFE.  BUT IN WALZ WE DEALT WITH A STATUS UNDER STATE TAX LAWS
FOR THE BENEFIT OF ALL RELIGIOUS GROUPS.  HERE WE ARE CONFRONTED WITH
SUCCESSIVE AND VERY LIKELY PERMANENT ANNUAL APPROPRIATIONS THAT BENEFIT
RELATIVELY FEW RELIGIOUS GROUPS.  POLITICAL FRAGMENTATION AND
DIVISIVENESS ON RELIGIOUS LINES ARE THUS LIKELY TO BE INTENSIFIED. 

THE POTENTIAL FOR POLITICAL DIVISIVENESS RELATED TO RELIGIOUS BELIEF
AND PRACTICE IS AGGRAVATED IN THESE TWO STATUTORY PROGRAMS BY THE NEED
FOR CONTINUING ANNUAL APPROPRIATIONS AND THE LIKELIHOOD OF LARGER AND
LARGER DEMANDS AS COSTS AND POPULATIONS GROW.  THE RHODE ISLAND
DISTRICT COURT FOUND THAT THE PAROCHIAL SCHOOL SYSTEM'S "MONUMENTAL AND
DEEPENING FINANCIAL CRISIS" WOULD "INESCAPABLY" REQUIRE LARGER ANNUAL
APPROPRIATIONS SUBSIDIZING GREATER PERCENTAGES OF THE SALARIES OF LAY
TEACHERS.  ALTHOUGH NO FACTS HAVE BEEN DEVELOPED IN THIS RESPECT IN THE
PENNSYLVANIA CASE, IT APPEARS THAT SUCH PRESSURES FOR EXPANDING AID
HAVE ALREADY REQUIRED THE STATE LEGISLATURE TO INCLUDE A PORTION OF THE
STATE REVENUES FROM CIGARETTE TAXES IN THE PROGRAM. 

        V 

IN WALZ IT WAS ARUGED THAT A TAX EXEMPTION FOR PLACES OF RELIGIOUS
WORSHIP WOULD PROVE TO BE THE FIRST STEP IN AN INEVITABLE PROGRESSION
LEADING TO THE ESTABLISHMENT OF STATE CHURCHES AND STATE RELIGION. 
THAT CLAIM COULD NOT STAND UP AGAINST MORE THAN 200 YEARS OF VIRTUALLY
UNIVERSAL PRACTICE IMBEDDED IN OUR COLONIAL EXPERIENCE AND CONTINUING
INTO THE PRESENT. 

THE PROGRESSION ARGUMENT, HOWEVER, IS MORE PERSUASIVE HERE.  WE HAVE
NO LONG HISTORY OF STATE AID TO CHURCH-RELATED EDUCATIONAL INSTITUTIONS
COMPARABLE TO 200 YEARS OF TAX EXEMPTION FOR CHURCHES.  INDEED, THE
STATE PROGRAMS BEFORE US TODAY REPRESENT SOMETHING OF AN INNOVATION. 
WE HAVE ALREADY NOTED THAT MODERN GOVERNMENTAL PROGRAMS HAVE SELF
PERPETUATING AND SELF-EXPANDING PROPENSITIES.  THESE INTERNAL PRESSURES
ARE ONLY ENHANCED WHEN THE SCHEMES INVOLVE INSTITUTIONS WHOSE
LEGITIMATE NEEDS ARE GROWING AND WHOSE INTERESTS HAVE SUBSTANTIAL
POLITICAL SUPPORT.  NOR CAN WE FAIL TO SEE THAT IN CONSTITUTIONAL
ADJUDICATION SOME STEPS, WHICH WHEN TAKEN WERE THOUGHT TO APPROACH "THE
VERGE," HAVE BECOME THE PLATFORM FOR YET FURTHER STEPS.  A CERTAIN
MOMENTUM DEVELOPS IN CONSTITUTIONAL THEORY AND IT CAN BE A "DOWNHILL
THRUST" EASILY SET IN MOTION BUT DIFFICULT TO RETARD OR STOP. 
DEVELOPMENT BY MOMENTUM IS NOT INVARIABLY BAD; INDEED, IT IS THE WAY
THE COMMON LAW HAS GROWN, BUT IT IS A FORCE TO BE RECOGNIZED AND
RECKONED WITH.  THE DANGERS ARE INCREASED BY THE DIFFICULTY OF
PERCEIVING IN ADVANCE EXACTLY WHERE THE "VERGE" OF THE PRECIPICE LIES. 
AS WELL AS CONSTITUTING AN INDEPENDENT EVIL AGAINST WHICH THE RELIGION
CLAUSES WERE INTENDED TO PROTECT, INVOLVEMENT OR ENTANGLEMENT BETWEEN
GOVERNMENT AND RELIGION SERVES AS A WARNING SIGNAL. 

FINALLY, NOTHING WE HAVE SAID CAN BE CONSTRUED TO DISPARAGE THE ROLE
OF CHURCH-RELATED ELEMENTARY AND SECONDARY SCHOOLS IN OUR NATIONAL
LIFE.  THEIR CONTRIBUTION HAS BEEN AND IS ENORMOUS.  NOR DO WE IGNORE
THEIR ECONOMIC PLIGHT IN A PERIOD OF RISING COSTS AND EXPANDING NEED. 
TAXPAYERS GENERALLY HAVE BEEN SPARED VAST SUMS BY THE MAINTENANCE OF
THESE EDUCATIONAL INSTITUTIONS BY RELIGIOUS ORGANIZATIONS, LARGELY BY
THE GIFTS OF FAITHFUL ADHERENTS. 

THE MERIT AND BENEFITS OF THESE SCHOOLS, HOWEVER, ARE NOT THE ISSUE
BEFORE US IN THESE CASES.  THE SOLE QUESTION IS WHETHER STATE AID TO
THESE SCHOOLS CAN BE SQUARED WITH THE DICTATES OF THE RELIGION
CLAUSES.  UNDER OUR SYSTEM THE CHOICE HAS BEEN MADE THAT GOVERNMENT IS
TO BE ENTIRELY EXCLUDED FROM THE AREA OF RELIGIOUS INSTRUCTION AND
CHURCHES EXCLUDED FROM THE AFFIARS OF GOVERNMENT.  THE CONSTITUTION
DECREES THAT RELIGION MUST BE A PRIVATE MATTER FOR THE INDIVIDUAL, THE
FAMILY, AND THE INSTITUTIONS OF PRIVATE CHOICE, AND THAT WHILE SOME
INVOLVEMENT AND ENTANGLEMENT ARE INEVITABLE, LINES MUST BE DRAWN. 

THE JUDGMENT OF THE RHODE ISLAND DISTRICT COURT IN NO. 569 AND NO.
570 IS AFFIRMED.  THE JUDGMENT OF THE PENNSYLVANIA DISTRICT COURT IN
NO. 89 IS REVERSED, AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

/0/  TOGETHER WITH NO. 569, EARLEY ET AL. V. DICENSO ET AL., AND NO.
570, ROBINSON, COMMISSIONER OF EDUCATION OF RHODE ISLAND, ET AL. V.
DICENSO ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF RHODE ISLAND. 

/1/  R.I.GEN.  LAWS ANN. SEC. 16-51-1 ET SEQ. (SUPP. 1970). 

/2/  THE DISTRICT COURT FOUND ONLY ONE INSTANCE IN WHICH THIS
BREAKDOWN BETWEEN RELIGIOUS AND SECULAR EXPENSES WAS NECESSARY.  THE
SCHOOL IN QUESTION WAS NOT AFFILIATED WITH THE CATHOLIC CHURCH.  THE
COURT FOUND IT UNLIKELY THAT SUCH DETERMINATIONS WOULD BE NECESSARY
WITH RESPECT TO CATHOLIC SCHOOLS BECAUSE THEIR HEAVY RELIANCE ON NUNS
KEPT THEIR WAGE COSTS SUBSTANTIALLY BELOW THOSE OF THE PUBLIC SCHOOLS. 

/3/  PA. STAT. ANN., TIT. 24, SECS. 5601-5609 (SUPP. 1971). 

/4/  LATIN, HEBREW, AND CLASSICAL GREEK ARE EXCLUDED. 

/5/  PLAINTIFFS-APPELLANTS ALSO CLAIMED THAT THE ACT VIOLATED THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT BY PROVIDING STATE
ASSISTANCE TO PRIVATE INSTITUTIONS THAT DISCRIMINATED ON RACIAL AND
RELIGIOUS GROUNDS IN THEIR ADMISSIONS AND HIRING POLICIES.  THE COURT
UNANIMOUSLY HELD THAT NO PLAINTIFF HAD STANDING TO RAISE THIS CLAIM
BECAUSE THE COMPLAINT DID NOT ALLEGE THAT THE CHILD OF ANY PLAINTIFF
HAD BEEN DENIED ADMISSION TO ANY NONPUBLIC SCHOOL ON RACIAL OR
RELIGIOUS GROUNDS.  OUR DECISION MAKES IT UNNECESSARY FOR US TO REACH
THIS ISSUE. 

/6/  SEE, E.G., J. FICHTER, PAROCHIAL SCHOOL:  A SOCIOLOGICAL STUDY
77-108 (1958); GIANNELLA, RELIGIOUS LIBERTY, NONESTABLISHMENT, AND
DOCTRINAL DEVELOPMENT, PT. II, THE NONESTABLISHMENT PRINCIPLE, 81
HARV.L.REV.  513, 574 (1968). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF NO. 89. 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I HAVE EXPRESSED AT SOME
LENGTH MY VIEWS AS TO THE RATIONALE OF TODAY'S DECISION IN THESE THREE
CASES. 

THEY INVOLVE TWO DIFFERENT STATUTORY SCHEMES FOR PROVIDING AID TO
PAROCHIAL SCHOOLS.  LEMON DEALS WITH THE PENNSYLVANIA NONPUBLIC
ELEMENTARY AND SECONDARY EDUCATION ACT, LAWS 1968, ACT NO. 109.  BY ITS
TERMS THE PENNSYLVANIA ACT ALLOWS THE STATE TO PROVIDE FUNDS DIRECTLY
TO PRIVATE SCHOOLS TO PURCHASE "SECULAR EDUCATIONAL SERVICE" SUCH AS
TEACHERS' SALARIES, TEXTBOOKS, AND EDUCATIONAL MATERIALS.  PA. STAT.
ANN., TIT. 24, SEC. 5604 (SUPP. 1971).  REIMBURSEMENT FOR THESE
SERVICES MAY BE MADE ONLY FOR COURSES IN MATHEMATICS, MODERN FOREIGN
LANGUAGES, PHYSICAL SCIENCE, AND PHYSICAL EDUCATION.  REIMBURSEMENT IS
PROHIBITED FOR ANY COURSE CONTAINING SUBJECT MATTER "EXPRESSING
RELIGIOUS TEACHING, OR THE MORALS OR FORMS OF WORSHIP OF ANY SECT." 
SEC. 5603 (SUPP. 1971).  TO QUALIFY, A SCHOOL MUST DEMONSTRATE THAT ITS
PUPILS ACHIEVE A SATISFACTORY LEVEL OF PERFORMANCE IN STANDARDIZED
TESTS APPROVED BY THE SUPERINTENDENT OF PUBLIC INSTRUCTION, AND THAT
THE TEXTBOOKS AND OTHER INSTRUCTIONAL MATERIALS USED IN THESE COURSES
HAVE BEEN APPROVED BY THE SUPERINTENDENT OF PUBLIC INSTRUCTION.  THE
THREE-JUDGE DISTRICT COURT BELOW UPHELD THIS STATUTE AGAINST THE
ARGUMENT THAT IT VIOLATES THE ESTABLISHMENT CLAUSE.  WE NOTED PROBABLE
JURISDICTION.  397 U.S. 1034. 

THE DICENSO CASES INVOLVE THE RHODE ISLAND SALARY SUPPLEMENT ACT,
LAWS 1969, C. 246.  THE RHODE ISLAND ACT AUTHORIZES SUPPLEMENTING THE
SALARIES OF TEACHERS OF SECULAR SUBJECTS IN NONPROFIT PRIVATE SCHOOLS. 
THE SUPPLEMENT IS NOT MORE THAN 15% OF AN ELIGIBLE TEACHER'S CURRENT
SALARY BUT CANNOT EXCEED THE MAXIMUM SALARY PAID TO TEACHERS IN THE
STATE'S PUBLIC SCHOOLS.  TO BE ELIGIBLE A TEACHER MUST TEACH ONLY THOSE
SUBJECTS OFFERED IN PUBLIC SCHOOLS IN THE STATE, MUST BE CERTIFIED IN
SUBSTANTIALLY THE SAME MANNER AS TEACHERS IN PUBLIC SCHOOLS, AND MAY
USE ONLY TEACHING MATERIALS WHICH ARE USED IN THE PUBLIC SCHOOLS.  ALSO
THE TEACHER MUST AGREE IN WRITING "NOT TO TEACH A COURSE IN RELIGION
FOR SO LONG AS OR DURING SUCH TIME AS HE OR SHE RECEIVES ANY SALARY
SUPPLEMENTS."  R.I. GEN. LAWS ANN. SEC. 16-51-2 (SUPP. 1970).  THE
SCHOOLS THEMSELVES MUST NOT BE OPERATED FOR PROFIT, MUST MEET STATE
EDUCATIONAL STANDARDS, AND THE ANNUAL PER STUDENT EXPENDITURE FOR
SECULAR EDUCATION MUST NOT EQUAL OR EXCEED "THE AVERAGE ANNUAL PER
STUDENT EXPENDITURE IN THE PUBLIC SCHOOLS IN THE STATE AT THE SAME
GRADE LEVEL IN THE SECOND PRECEDING FISCAL YEAR."  SEC. 16-51-2 (SUPP.
1970).  WHILE THE RHODE ISLAND ACT, UNLIKE THE PENNSYLVANIA ACT,
PROVIDES FOR DIRECT PAYMENTS TO THE TEACHER, THE THREE-JUDGE DISTRICT
COURT BELOW FOUND IT UNCONSTITUTIONAL BECAUSE IT "RESULTS IN EXCESSIVE
GOVERNMENT ENTANGLEMENT WITH RELIGION."  PROBABLE JURISDICTION WAS
NOTED AND THE CASES WERE SET FOR ORAL ARGUMENT WITH THE OTHER SCHOOL
CASES.  400 U.S. 901. 

IN WALZ V. TAX COMMISSION, 397 U.S. 664, 674, THE COURT IN APPROVING
A TAX EXEMPTION FOR CHURCH PROPERTY SAID: 

     "DETERMINING THAT THE LEGISLATIVE PURPOSE OF TAX EXEMPTION IS

  NOT AIMED AT ESTABLISHING, SPONSORING, OR SUPPORTING RELIGION

  DOES NOT END THE INQUIRY, HOWEVER.  WE MUST ALSO BE SURE THAT THE

  END RESULT-- THE EFFECT-- IS NOT AN EXCESSIVE GOVERNMENT

  ENTANGLEMENT WITH RELIGION." 

THERE IS IN MY VIEW SUCH AN ENTANGLEMENT HERE.  THE SURVEILLANCE OR
SUPERVISION OF THE STATES NEEDED TO POLICE GRANTS INVOVLED IN THESE
THREE CASES, IF PERFORMED, PUTS A PUBLIC INVESTIGATOR INTO EVERY
CLASSROOM AND ENTAILS A PERVASIVE MONITORING OF THESE CHURCH AGENCIES
BY THE SECULAR AUTHORITIES.  YET IF THAT SURVEILLANCE OR SUPERVISION
DOES NOT OCCUR THE ZEAL OF RELIGIOUS PROSELYTIZERS PROMISES TO CARRY
THE DAY AND MAKE A SHAMBLES OF THE ESTABLISHMENT CLAUSE.  MOREOVER,
WHEN TAXPAYERS OF MANY FAITHS ARE REQUIRED TO CONTRIBUTE MONEY FOR THE
PROPAGATION OF ONE FAITH, THE FREE EXERCISE CLAUSE IS INFRINGED. 

THE ANALYSIS OF THE CONSTITUTIONAL OBJECTIONS TO THESE TWO STATE
SYSTEMS OF GRANTS TO PAROCHIAL OR SECTARIAN SCHOOLS MUST START WITH THE
ADMITTED AND OBVIOUS FACT THAT THE RAISON D'ETRE OF PAROCHIAL SCHOOLS
IS THE PROPAGATION OF A RELIGIOUS FAITH.  THEY ALSO TEACH SECULAR
SUBJECTS; BUT THEY CAME INTO EXISTENCE IN THIS COUNTRY BECAUSE
PROTESTANT GROUPS WERE PERVERTING THE PUBLIC SCHOOLS BY USING THEM TO
PROPAGATE THEIR FAITH.  THE CATHOLICS NATURALLY REBELLED.  IF SCHOOLS
WERE TO BE USED TO PROPAGATE A PARTICULAR CREED OR RELIGION, THEN
CATHOLIC IDEALS SHOULD ALSO BE SERVED.  HENCE THE ADVENT OF PAROCHIAL
SCHOOLS.     BY 1840 THERE WERE 200 CATHOLIC ARISH SCHOOLS IN THE
UNITED STATES.  /1/  BY 1964 THERE WERE 60 TIMES AS MANY.  /2/  TODAY
57% OF THE 9,000 CATHOLIC PARISHES IN THE COUNTRY HAVE THEIR CHURCH
SCHOOLS.  "(EVERY DIOCESAN CHANCERY HAS ITS SCHOOL DEPARTMENT, AND
ENJOYS A PRIMACY OF STATUS."  /3/  THE PARISH SCHOOLS INDEED CONSUME
40% TO 65% OF THE PARISH'S TOTAL INCOME.  /4/  THE PARISH IS SO "SCHOOL
CENTERED" THAT "(THE SCHOOL ALMOST BECOMES THE VERY REASON FOR BEING." 
/5/ 

EARLY IN THE 19TH CENTURY THE PROTESTANTS OBTAINED CONTROL OF THE
NEW YORK SCHOOL SYSTEM AND USED IT TO PROMOTE READING AND TEACHING OF
THE SCRIPTURES AS REVEALED IN THE KING JAMES VERSION OF THE BIBLE.  /6/
THE CONTESTS BETWEEN PROTESTANTS AND CATHOLICS, OFTEN ERUPTING INTO
VIOLENCE INCLUDING THE BURNING OF CATHOLIC CHURCHES, ARE A TWICE-TOLD
TALE; /7/  THE KNOW-NOTHING PARTY, WHICH INCLUDED IN ITS PLATFORM
"DAILY BIBLE READING IN THE SCHOOLS,"  /8/  CARRIED THREE STATES IN
1854-- MASSACHUSETTS, PENNSYLVANIA, AND DELAWARE.  /9/  PAROCHIAL
SCHOOLS GREW, BUT NOT CATHOLIC SCHOOLS ALONE.  OTHER DISSENTING SECTS
ESTABLISHED THEIR OWN SCHOOLS-- LUTHERANS, METHODISTS, PRESBYTERIANS,
AND OTHERS.  /10/  BUT THE MAJOR FORCE IN SHAPING THE PATTERN OF
EDUCATION IN THIS COUNTRY WAS THE CONFLICT BETWEEN PROTESTANTS AND
CATHOLICS.  THE CATHOLICS LOGICALLY ARGUED THAT A PUBLIC SCHOOL WAS
THEREFORE WANTED IT REMOVED FROM THE PUBLIC SCHOOLS; AND IN TIME THEY
TRIED TO GET PUBLIC FUNDS FOR THEIR OWN PAROCHIAL SCHOOLS.  /11/ 

THE CONSTITUTIONAL RIGHT OF DISSENTERS TO SUBSTITUTE THEIR PAROCHIAL
SCHOOLS FOR PUBLIC SCHOOLS WAS SUSTAINED BY THE COURT IN PIERCE V.
SOCIETY OF SISTERS, 268 U.S. 510. 

THE STORY OF CONFLICT AND DISSENSION IS LONG AND WELL KNOWN.  THE
RESULT WAS A STATE OF SO-CALLED EQUILIBRIUM WHERE RELIGIOUS INSTRUCTION
WAS ELIMINATED FROM PUBLIC SCHOOLS AND THE USE OF PUBLIC FUNDS TO
SUPPORT RELIGIOUS SCHOOLS WAS DEEMED TO BE BANNED.  /12/ 

BUT THE HYDRAULIC PRESSURES CREATED BY POLITICAL FORCES AND BY
ECONOMIC STRESS WERE GREAT AND THEY BEGAN TO CHANGE THE SITUATION. 
LAWS WERE PASSED-- STATE AND FEDERAL-- THAT DISPENSED PUBLIC FUNDS TO
SUSTAIN RELIGIOUS SCHOOLS AND THE PLEA WAS ALWAYS IN THE EDUCATIONAL
FRAME OF REFERENCE:  EDUCATION IN ALL SECTORS WAS NEEDED, FROM
LANGUAGES TO CALCULUS TO NUCLEAR PHYSICS.  AND IT WAS FORCEFULLY ARGUED
THAT A LINGUIST OR MATHEMATICIAN OR PHYSICIST TRAINED IN RELIGIOUS
SCHOOLS WAS JUST AS COMPETENT AS ONE TRAINED IN SECULAR SCHOOLS. 

AND SO WE HAVE GRADUALLY EDGED INTO A SITUATION WHERE VAST AMOUNTS
OF PUBLIC FUNDS ARE SUPPLIED EACH YEAR TO SECTARIAN SCHOOLS.  /13/ 

AND THE ARGUMENT IS MADE THAT THE PRIVATE PAROCHIAL SCHOOL SYSTEM
TAKES ABOUT $9 BILLION A YEAR OFF THE BACK OF GOVERNMENT /14/  -- AS IF
THAT WERE ENOUGH TO JUSTIFY VIOLATING THE ESTABLISHMENT CLAUSE. 

WHILE THE EVOLUTION OF THE PUBLIC SCHOOL SYSTEM IN THIS COUNTRY
MARKED AN ESCAPE FROM DENOMINATIONAL CONTROL AND WAS THEREFORE
ADMIRABLE AS SEEN THROUGH THE EYES OF THOSE WHO THINK LIKE MADISON AND
JEFFERSON, IT HAS DISADVANTAGES.  THE MAIN ONE IS THAT A STATE SYSTEM
MAY ATTEMPT TO MOLD ALL STUDENTS ALIKE ACCORDING TO THE VIEWS OF THE
DOMINANT GROUP AND TO DISCOURAGE THE EMERGENCE OF INDIVIDUAL
IDIOSYNCRASIES. 

ADVANTAGES OF SECTARIAN EDUCATION RELATE SOLELY TO RELIGIOUS OR
DOCTRINAL MATTERS.  THEY GIVE THE CHURCH THE OPPORTUNITY TO
INDOCTRINATE ITS CREED DELICATELY AND INDIRECTLY, OR MASSIVELY THROUGH
DOCTRINAL COURSES. 

MANY NATIONS FOLLOW THAT COURSE:  MOSLEM NATIONS TEACH THE KORAN IN
THEIR SCHOOLS; SWEDEN VESTS ITS ELEMENTARY EDUCATION IN THE PARISH;
NEWFOUNDLAND PUTS ITS SCHOOL SYSTEM UNDER THREE SUPERINTENDENTS-- ONE
FROM THE CHURCH OF ENGLAND, ONE FROM THE CATHOLIC CHURCH, ONE FROM THE
UNITED CHURCH.  IN IRELAND THE PUBLIC SCHOOLS ARE UNDER DENOMINATIONAL
MANAGERSHIP-- CATHOLIC, EPISCOPALIAN, PRESBYTERIAN, AND HEBREW. 

ENGLAND PUTS SECTARIAN SCHOOLS UNDER THE UMBRELLA OF ITS SCHOOLS
SYSTEM.  IT FINANCES SECTARIAN EDUCATION; IT EXERTS CONTROL BY
PRESCRIBING STANDARDS; IT REQUIRES SOME FREE SCHOLARSHIPS; IT PROVIDES
NONDENOMINATIONAL MEMBERSHIP ON THE BOARD OF DIRECTORS.  /15/ 

THE BRITISH SYSTEM IS, IN OTHER WORDS, ONE OF SURVEILLANCE OVER
ONLY TO THE EXTENT OF MAKING SURE THAT MIMIMUM EDUCATIONAL STANDARDS
ARE MET, VIZ., COMPETENT TEACHERS, ACCREDITATION OF THE SCHOOL FOR
DIPLOMAS, THE NUMBER OF HOURS OF WORK AND CREDITTS ALLOWED, AND SO ON. 

BUT WE HAVE NEVER FACED, UNTIL RECENTLY, THE PROBLEM OF POLICING
RELATED ONLY TO THE CONSISTENTLY UNCHALLENGED MATTERS OF ACCREDITATION
OF THE SECTARIAN SCHOOL IN THE STATE'S SCHOOL SYSTEM.  /16/ 

THE RHODE ISLAND ACT ALLOWS A SUPPLEMENTARY SALARY TO A TEACHER IN A

THE PENNSYVANIA ACT PROVIDES FOR STATE FINANCING OF INSTRUCTION IN
MATHEMATICS, MODERN FOREIGN LANGUAGES, PHYSICAL SCIENCE, AND PHYSICAL
EDUCATION, PROVIDED THAT THE INSTRUCTION IN THOSE COURSES "SHALL NOT
INCLUDE ANY SUBJECT MATTER EXPRESSING RELIGIOUS TEACHING, OR THE MORALS
OR FORMS OF WORSHIP OF ANY SECT." 

PUBLIC FINANCIAL SUPPORT OF PAROCHIAL SCHOOLS PUTS THOSE SCHOOLS
UNDER DISABILITIES WITH WHICH THEY WERE NOT PREVIOUSLY BURDENED.  FOR,
AS WE HELD IN COOPER V. AARON, 358 U.S. 1, 19, GOVERNMENTAL ACTIVITIES
RELATING TO SCHOOLS "MUST BE EXERCISED CONSISTENTLY WITH FEDERAL
CONSTITUTIONAL REQUIREMENTS."  THERE WE WERE CONCERNED WITH EQUAL
PROTECTION; HERE WE ARE FACED WITH ISSUES OF ESTABLISHMENT OF RELIGION
AND ITS FREE EXERCISE AS THOSE CONCEPTS ARE USED IN THE FIRST
AMENDMENT. 

WHERE THE GOVERNMENTAL ACTIVITY IS THE FINANCING OF THE PRIVATE
SCHOOL, THE VARIOUS LIMITATIONS OR RESTRAINTS IMPOSED BY THE
CONSTITUTION ON STATE GOVERNMENTS COME INTO PLAY.  THUS, ARKANSAS, AS
PART OF ITS ATTEMPT TO AVOID THE CONSEQUENCES OF BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, 349 U.S. 294, WITHDREW ITS FINANCIAL SUPPORT
FROM SOME PUBLIC SCHOOLS AND SENT THE FUNDS INSTEAD TO PRIVATE
SCHOOLS.  THAT STATE ACTION WAS HELD TO VIOLATE THE EQUAL PROTECTION
CLAUSE.  AARON V. MCKINLEY, 173 F.SUPP.  944, 952.  WE AFFIRMED, SUB
NOM. FAUBUS V. AARON, 361 U.S. 197.  LOUISIANT TRIED A LIKE TACTIC AND
IT TOO WAS INVALIDATED.  POINDEXTER V. LOUISIANA FINANCIAL ASSISTANCE
COMMISSION, 296 F.SUPP.  686.  AGAIN WE AFFIRMED.  393 U.S. 17. 
WHATEVER MIGHT BE THE RESULT IN CASE OF GRANTS TO STUDENTS, /17/  IT IS
CLEAR THAT ONCE ONE OF THE STATES FINANCES A PRIVATE SCHOOL, IT IS
DUTYBOUND TO MAKE CERTAIN THAT THE SCHOOL STAYS WITHIN SECULAR BOUNDS
AND DOES NOT USE THE PUBLIC FUNDS TO PROMOTE SECTARIAN CAUSES. 

THE GOVERNMENT MAY, OF COURSE, FINANCE A HOSPITAL THOUGH IT IS RUN
BY A RELIGIOUS ORDER, PROVIDED IT IS OPEN TO PEOPLE OF ALL RACES AND
CREEDS.  BRADFIELD V. ROBERTS, 175 U.S. 291.  THE GOVERNMENT ITSELF
COULD ENTER THE HOSPITAL BUSINESS; AND IT WOULD, OF COURSE, MAKE NO
DIFFERENCE IF ITS AGENTS WHO RAN ITS HOSPITALS WERE CATHOLICS,
METHODISTS, AGNOSTICS, OR WHATNOT.  FOR THE HOSPITAL IS NOT INDULGING
IN RELIGIOUS INSTRUCTION OR GUIDANCE OR INDOCTRINATION.  AS MR. JUSTICE
JACKSON SAID IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 26
(DISSENTING): 

"(EACH STATE HAS) GREAT LATITUDE IN DECIDING FOR ITSELF, IN THE
LIGHT OF ITS OWN CONDITIONS, WHAT SHALL BE PUBLIC PURPOSES IN ITS
SCHEME OF THINGS.  IT MAY SOCIALIZE UTILITIES AND ECONOMIC ENTERPRISES
AND MAKE TAXPAYERS' BUSINESS OUT OF WHAT CONVENTIONALLY HAD BEEN
PRIVATE BUSINESS.  IT MAY MAKE PUBLIC BUSINESS OF INDIVIDUAL WELFARE,
HEALTH, EDUCATION, ENTERTAINMENT OR SECURITY.  BUT IT CANNOT MAKE
PUBLIC BUSINESS OF RELIGIOUS WORSHIP OR INSTRUCTION, OR OF ATTENDANCE
AT RELIGIOUS INSTITUTIONS OF ANY CHARACTER." 

THE REASON IS THAT GIVEN BY MADISON IN HIS REMONSTRANCE:  /18/ 

"(THE SAME AUTHORITY WHICH CAN FORCE A CITIZEN TO CONTRIBUTE THREE
PENCE ONLY OF HIS PROPERTY FOR THE SUPPORT OF ANY ONE ESTABLISHMENT,
MAY FORCE HIM TO CONFORM TO ANY OTHER ESTABLISHMENT.  . . " 

WHEN MADISON IN HIS REMONSTRANCE ATTACKED A TAXING MEASURE TO
SUPPORT RELIGIOUS ACTIVITIES, HE ADVANCED A SERIES OF REASONS FOR
OPPOSING IT.  ONE THAT IS EXTREMELY RELEVANT HERE WAS PHRASED AS
FOLLOWS:  /19/  "(IT WILL DESTROY THAT MODERATION AND HARMONY WHICH THE
FORBEARANCE OF OUR LAWS TO INTERMEDDLE WITH RELIGION, HAS PRODUCED
AMONGST ITS SEVERAL SECTS."  INTERMEDDLING, TO USE MADISON'S WORD, OR
"ENTANGLEMENT," TO USE WHAT WAS SAID IN WALZ, HAS TWO ASPECTS.  THE
INTRUSION OF GOVERNMENT INTO RELIGIOUS SCHOOLS THROUGH GRANTS,
SUPERVISION, OR SURVEILLANCE MAY RESULT IN ESTABLISHMENT OF RELIGION IN
THE CONSTITUTIONAL SENSE WHEN WHAT THE STATE DOES ENTHRONES A
PARTICULAR SECT FOR OVERT OR SUBTLE PROPAGATION OF ITS FAITH.  THOSE
ACTIVITIES OF THE STATE MAY ALSO INTRUDE ON THE FREE EXERCISE CLAUSE BY
DEPRIVING A TEACHER, UNDER THREATS OF REPRISALS, OF THE RIGHT TO GIVE
LITERATURE, OR TO USE THE TEACHING OF SUCH SUBJECTS TO INCULCATE A
RELIGIOUS CREED OR DOGMA. 

UNDER THESE LAWA THERE WILL BE VAST GOVERNMENTAL SUPPRESSION,
SURVEILLANCE, OR MEDDLING IN CHURCH AFFAIRS.  AS I INDICATED IN TILTON
V. RICHARDSON, POST, P. 689, DECIDED THIS DAY, SCHOOL PRAYERS, THE
DAILY ROUTINE OF PAROCHIAL SCHOOLS, MUST GO IF OUR DECISION IN ENGEL V.
VITALE, 370 U.S. 421, IS HONORED.  IF IT IS NOT HONORED, THEN THE STATE
HAS ESTABLISHED A RELIGIOUS SECT.  ELIMINATION OF PRAYERS IS ONLY PART
OF THE PROBLEM.  THE CURRICULUM PRESENTS SUBTLE AND DIFFICULT
PROBLEMS.  THE CONSTITUTIONAL MANDATE CAN IN PART BE CARRIED OUT BY
CENSORING THE CURRICULA.  WHAT IS PALPABLY A SECTARIAN COURSE CAN BE
MARKED FOR DELETION.  BUT THE PROBLEM ONLY STARTS THERE.  SECTARIAN
INSTRUCTION, IN WHICH, OF COURSE, A STATE MAY NOT INDULGE CAN TAKE
PLACE IN A COURSE ON SHAKESPEARE OR IN ONE ON MATHEMATICS.  NO MATTER
WHAT THE CURRICULUM OFFERS, THE QUESTION IS, WHAT IS TAUGHT?  WE DEAL
NOT WITH EVIL TEACHERS BUT WITH ZEALOUS ONES WHO MAY USE ANY
OPPORTUNITY TO INDOCTRINATE A CLASS.  /20/ 

IT IS WELL KNOWN THAT EVERYTHING TAUGHT IN MOST PAROCHIAL SCHOOLS IS
TAUGHT WITH THE ULTIMATE GOAL OF RELIGIOUS EDUCATION IN MIND.  REV.
JOSEPH H. FICHTER, S.J., STATED IN PAROCHIAL SCHOOL:  A SOCIOLOGICAL
STUDY 86 (1958): 

     "IT IS A COMMONPLACE OBSERVATION THAT IN THE PAROCHIAL SCHOOL

  RELIGION PERMEATES THE WHOLE CURRICULUM, AND IS NOT CONFINED TO A

  SINGLE HALF-HOUR PERIOD OF THE DAY.  EVEN ARITHMETIC CAN BE USED

  AS AN INSTRUMENT OF PIOUS THOUGHTS, AS IN THE CASE OF THE TEACHER

  WHO GAVE THIS PROBLEM TO HER CLASS:  'IF IT TAKES FORTY THOUSAND

  PRIESTS AND A HUNDRED AND FORTY THOUSAND SISTERS TO CARE FOR

  FORTY MILLION CATHOLICS IN THE UNITED STATES, HOW MANY MORE

  PRIESTS AND SISTERS WILL BE NEEDED TO CONVERT AND CARE FOR THE

  HUNDRED MILLION NON-CATHOLICS IN THE UNITED STATES?'" 

ONE CAN IMAGINE WHAT A RELIGIOUS ZEALOT, AS CONTRASTED TO A CIVIL
LIBERTARIAN, CAN DO WITH THE REFORMATION OR WITH THE INQUISITION.  MUCH
HISTORY CAN BE GIVEN THE GLOSS OF A PARTICULAR RELIGION.  I WOULD THINK
THAT POLICING THESE GRANTS TO DETECT SECTARIAN INSTRUCTION WOULD BE
INSUFFERABLE TO RELIGIOUS PARTISANS AND WOULD BREED DIVISION AND
DISSENSION BETWEEN CHURCH AND STATE. 

THIS PROBLEM LOOMS LARGE WHERE THE CHURCH CONTROLS THE HIRING AND
FIRING OF TEACHERS: 

    "(IN THE PUBLIC SCHOOL THE SELECTION OF A FACULTY AND THE

  ADMINISTRATION OF THE SCHOOL USUALLY RESTS WITH A SCHOOL BOARD

  WHICH IS SUBJECT TO ELECTION AND RECALL BY THE VOTERS, BUT IN THE

  PAROCHIAL SCHOOL THE SELECTION OF A FACULTY AND THE

  ADMINISTRATION OF THE SCHOOL IS IN THE HANDS OF THE BISHOP ALONE,

  AND USUALLY IS ADMINISTERED THROUGH THE LOCAL PRIEST.  IF A

  FACULTY MEMBER IN THE PUBLIC SCHOOL BELIEVES THAT HE HAS BEEN

  TREATED UNJUSTLY IN BEING DISCIPLINED OR DISMISSED, HE CAN SEEK

  REDRESS THROUGH THE CIVIL COURT AND HE IS GUARANTEED A HEARING. 

  BUT IF A FACULTY MEMBER IN A PAROCHIAL SCHOOL IS DISCIPLINED OR

 DISMISSED HE HAS NO RECOURSE WHATSOEVER.  THE WORD OF THE BISHOP

  OR PRIEST IS FINAL, EVEN WITHOUT EXPLANATION IF HE SO CHOOSES. 

  THE TAX PAYERS HAVE A VOICE IN THE WAY THEIR MONEY IS USED IN THE

  PUBLIC SCHOOL, BUT THE PEOPLE WHO SUPPORT A PAROCHIAL SCHOOL HAVE

  NO VOICE AT ALL IN SUCH AFFAIRS."  L. BOETTNER, ROMAN CATHOLICISM

  375 (1962). 

BOARD OF EDUCATION V. ALLEN, 392 U.S. 236, DEALT ONLY WITH
TEXTBOOKS.  EVEN SO, SOME HAD DIFFICULTY GIVING APPROVAL.  YET BOOKS
CAN BE EASILY EXAMINED INDEPENDENTLY OF OTHER ASPECTS OF THE TEACHING
PROCESS.  IN THE PRESENT CASES WE DEAL WITH THE TOTALITY OF INSTRUCTION
DESTINED TO BE SECTARIAN, AT LEAST IN PART, IF THE RELIGIOUS CHARACTER
OF THE SCHOOL IS TO BE MAINTAINED.  A SCHOOL WHICH OPERATES TO
COMMINGLE RELIGION WITH OTHER INSTRUCTION PLAINLY CANNOT COMPLETELY
SECULARIZE ITS INSTRUCTION.  PAROCHIAL SCHOOLS, IN LARGE MEASURE, DO
NOT ACCEPT THE ASSUMPTION THAT SECULAR SUBJECTS SHOULD BE UNRELATED TO
RELIGIOUS TEACHING. 

LEMON INVOLVES A STATE STATUTE THAT PRESCRIBES THAT COURSES IN
MATHEMATICS, MODERN FOREIGN LANGUAGES, PHYSICAL SCIENCE, AND PHYSICAL
EDUCATION "SHALL NOT INCLUDE ANY SUBJECT MATTER EXPRESSING RELIGIOUS
TEACHING, OR THE MORALS OR FORMS OF WORSHIP OF ANY SECT."  THE
SUBLETIES INVOLVED IN APPLYING THIS STANDARD ARE OBVIOUS.  IT PLACES
THE STATE ASTRIDE A SECTARIAN SCHOOL AND GIVES IT POWER TO DICTATE WHAT
IS OR IS NOT SECULAR, WHAT IS OR IS NOT RELIGIOUS.  I CAN THINK OF NO
MORE DISRUPTING INFLUENCE APT TO PROMOTE RANCOR AND ILL-WILL BETWEEN
CHURCH AND STATE THAN THIS KIND OF SURVEILLANCE AND CONTROL.  THEY ARE
THE VERY OPPOSITE OF THE "MODERATION AND HARMONY" BETWEEN CHURCH AND
STATE WHICH MADISON THOUGHT WAS THE AIM AND PURPOSE OF THE
ESTABLISHMENT CLAUSE.     THE DICENSO CASES HAVE ALL THE VICES WHICH
ARE IN LEMON, BECAUSE THE SUPPLEMENTARY SALARY PAYABLE TO THE TEACHER
IS CONDITIONED ON HIS OR HER NOT TEACHING "A COURSE IN RELIGION." 

MOREOVER, THE DICENSO CASE REVEAL ANOTHER, BUT RELATED, KNOTTY
PROBLEM PRESENTED WHEN CHURCH AND STATE LAUNCH ONE OF THESE EDUCATIONAL
PROGRAMS.  THE BISHOP OF RHODE ISLAND HAS A HANDBOOK OF SCHOOL
REGULATIONS FOR THE DIOCESE OF PROVIDENCE.  /21/ 

THE SCHOOL BOARD SUPERVISES "THE EDUCATION, BOTH SPIRITUAL AND
SECULAR, IN THE PAROCHIAL SCHOOLS AND DIOCESAN HIGH SCHOOLS." 

THE SUPERINTENDENT IS AN AGENT OF THE BISHOP AND HE INTERPRETS AND
MAKES "EFFECTIVE STATE AND DIOCESAN EDUCATIONAL DIRECTIVES." 

THE PASTORS VISIT THE SCHOOLS AND "GIVE THEIR ASSISTANCE IN
PROMOTING SPIRITUAL AND INTELLECTUAL DISCIPLINE." 

COMMUNITY SUPERVISORS "ASSIST THE TEACHER IN THE PROBLEMS OF
INSTRUCTION" AND THESE DUTIES ARE: 

     "I.  TO BE COME WELL ENOUGH ACQUAINTED WITH THE TEACHERS OF

  THEIR COMMUNITIES SO AS TO BE ABLE TO ADVISE THE COMMUNITY

  SUPERIORS ON MATTERS OF PLACEMENT AND REASSIGNMENT. 

     "II.  TO ACT AS LIAISON BETWEEN THE PROVINCIALATE AND THE
RELIGIOUS TEACHER IN THE SCHOOL. 

     "III.  TO COOPERATE WITH THE SUPERINTENDENT BY STUDYING THE

  DIOCESAN SCHOOL REGULATIONS AND TO ENCOURAGE THE TEACHERS OF

  THEIR COMMUNITY TO OBSERVE THESE REGULATIONS. 

     "IV.  TO AVOID GIVING ANY ORDERS OR DIRECTIONS TO THE TEACHERS

  OF THEIR COMMUNITY THAT MAY BE IN CONFLICT WITH DIOCESAN

  REGULATIONS OR POLICY REGARDING CURRICULUM, TESTING, TEXTBOOKS,

  METHOD, OR ADMINISTRATIVE MATTERS. 

     "V.  TO REFER QUESTIONS CONCERNING SCHOOL ADMINISTRATION
BEYOND

  THE SCOPE OF THEIR OWN AUTHORITY TO THE PROPER DIOCESAN SCHOOL

  AUTHORITIES, NAMELY, THE SUPERINTENDENT OF SCHOOLS OR THE

  PASTOR." 

THE LENGTH OF THE SCHOOL DAY INCLUDES MASS: 

     "A FULL DAY SESSION FOR CATHOLIC SCHOOLS AT THE ELEMENTARY

  LEVEL CONSISTS OF FIVE AND ONE-HALF HOURS, EXCLUSIVE OF LUNCH AND

MASS, /22/  BUT INCLUSIVE OF RECESS FOR PUPILS IN GRADES 1-3." 

A COURSE OF STUDY OR SYLLABUS PRESCRIBED FOR ELEMENTARY OR SECONDARY
SCHOOL IS "MANDATORY." 

RELIGIOUS INSTRUCTION IS PROVIDED AS FOLLOWS: 

     "A.  SYSTEMATIC RELIGIOUS INSTRUCTIONS MUST BE PROVIDED IN ALL
SCHOOLS OF OF THE DIOCESE. 

     "B.  MODERN CATECHETICS REQUIRES A TEACHER WITH UNUSUAL

  APTITUDES, SPECIALIZED TRAINING, AND SUCH UNCTION OF THE SPIRIT

  THAT HIS WORDS POSSESS THE FORCE OF A PERSONAL CALL.  HE SHOULD

  BE SO FILLED WITH HIS SUBJECT THAT HE CAN FREELY IMPROVIZE IN

  DISCUSSION, DRAMATIZATION, DRAWING, SONG, AND PRAYER.  A TEACHER

  SO GIFTED AND SO PERMEATED BY THE MESSAGE OF THE GOSPEL IS RARE. 

  PERHAPS NO TEACHER IN A GIVEN SCHOOL ATTAINS THAT IDEAL.  BUT

  SOME TEACHERS COME NEARER IT THAN OTHERS.  IF OUR PUPILS ARE TO

HEAR THE GOOD NEWS SO THAT THEIR MINDS ARE ENLIGHTENED AND THEIR

  HEARTS RESPOND TO THE LOVE OF GOD AND HIS CHRIST, IF THEY ARE TO

  BE FORMED INTO VITAL, TWNETIETH-CENTURY CHRISTIANS, THEY SHOULD

  RECEIVE THEIR RELIGIOUS INSTRUCTIONS ONLY FROM THE VERY BEST

  TEACHERS. 

     "C.  INASMUCH AS THE TEXTBOOKS EMPLOYED IN RELIGIOUS

  INSTRUCTION ABOVE THE FIFTH GRADE REQUIRE A HIGH DEGREE OF

  CATECHETICAL PREPARATION, RELIGION SHOULD BE A DEPARTMENTALIZED

  SUBJECT IN GRADE SIX THROUGH TWELVE." 

RELIGIOUS ACTIVITIES ARE PROVIDED, THROUGH OBSERVANCE OF SPECIFIED
HOLY DAYS AND PARTICIPATION IN MASS. 

"RELIGIOUS FORMATION" IS NOT RESTRICTED TO COURSES BUT IS ACHIEVED
"THROUGH THE EXAMPLE OF THE FACULTY, THE TONE OF THE SCHOOL.  . . AND
RELIGIOUS ACTIVITIES." 

NO UNAUTHORIZED PRIEST MAY ADDRESS THE STUDENTS. 

     "RETREATS AND DAYS OF RECOLLECTION FORM AN INTEGRAL PART OF
OUR

 RELIGIOUS PROGRAM IN THE CATHOLIC SCHOOLS." 

RELIGIOUS FACTORS ARE USED IN THE SELECTION OF STUDENTS: 

     "ALTHOUGH WEALTH SHOULD NEVER SERVE AS A CRITERION FOR

  ACCEPTING A PUPIL INTO A CATHOLIC SCHOOL, ALL OTHER THINGS BEING

EQUAL, IT WOULD SEEM FAIR TO GIVE PREFERENCE TO A CHILD WHOSE

  PARENTS SUPPORT THE PARISH.  REGULAR USE OF THE BUDGET, RATHER

  THAN THE SIZE OF THE CONTRIBUTIONS, WOULD APPEAR EQUITABLE.  IT

  INDICATES WHETHER PARENTS REGULARLY ATTEND MASS." 

THESE ARE ONLY HIGHLIGHTS OF THE HANDBOOK.  BUT THEY INDICATE HOW
PERVASIVE IS THE RELIGIOUS CONTROL OVER THE SCHOOL AND HOW REMOTE THIS
TYPE OF SCHOOL IS FROM THE SECULAR SCHOOL.  PUBLIC FUNDS SUPPORTING
THAT STRUCTURE ARE USED TO PERPETUATE A DOCTRINE AND CREED IN
INNUMERABLE AND IN PERVASIVE WAYS.  THOSE WHO MAN THESE SCHOOLS ARE
GOOD PEOPLE, ZEALOUS PEOPLE, DEDICATED PEOPLE.  BUT THEY ARE DEDICATED
TO IDEAS THAT THE FRAMERS OF OUR CONSTITUTION PLACED BEYOND THE REACH
OF GOVERNMENT. 

IF THE GOVERNMENT CLOSED ITS EYES TO THE MANNER IN WHICH THESE
GRANTS ARE ACTUALLY USED IT WOULD BE ALLOWING PUBLIC FUNDS TO PROMOTE
SURVEILLANCE NEEDED, IT WOULD, I FEAR, INTERMEDDLE IN PAROCHIAL AFFAIRS
IN A WAY THAT WOULD BREED ONLY RANCOR AND DISSENSION. 

WE HAVE ANNOUNCED OVER AND OVER AGAIN THAT THE USE OF TAXPAYERS'
MONEY TO SUPPORT PAROCHIAL SCHOOLS VIOLATES THE FIRST AMENDMENT,
APPLICABLE TO THE STATES BY VIRTUE OF THE FOURTEENTH. 

WE SAID IN UNEQUIVOCAL WORDS IN EVERSON V. BOARD OF EDUCATION, 330
U.S. 1, 16, "NO TAX IN ANY AMOUNT, LARGE OR SMALL, CAN BE LEVEID TO
SUPPORT ANY RELIGIOUS ACTIVITIES OR INSTITUTIONS, WHATEVER THEY MAY BE
CALLED, OR WHATEVER FORM THEY MAY ADOPT TO TEACH OR PRACTICE
RELIGION."  WE REITERATED THE SAME IDEA IN ZORACH V. CLAUSON, 343 U.S.
306, 314, AND IN MCGOWAN V. MARYLAND, 366 U.S. 420, 443, AND IN TORCASO
V. WATKINS, 367 U.S. 488, 493.  WE REPEATED THE SAME IDEA IN MCCOLLUM
V. BOARD OF EDUCATION, 333 U.S. 203, 210, AND ADDED THAT A STATE'S TAX
SUPPORTED PUBLIC SCHOOLS COULD NOT BE USED "FOR THE DISSEMINATION OF
RELIGIOUS DOCTRINES: NOR COULD A STATE PROVIDE THE CHURCH "PUPILS FOR
THEIR RELIGIOUS CLASSES THROUGH USE OF THE STATE'S COMPULSORY PUBLIC
SCHOOL MACHINERY."  ID., AT 212. 

YET IN SPITE OF THIS LONG AND CONSISTENT HISTORY THERE ARE THOSE WHO
HAVE THE COURAGE TO ANNOUNCE THAT A STATE MAY NONETHELESS FINANCE THE
SECULAR PART OF A SECTARIAN SCHOOL'S EDUCATIONAL PROGRAM.  THAT,
HOWEVER, MAKES A GRAVE CONSTITUTIONAL DECISION TURN MERELY ON COST
ACCOUNTING AND BOOKKEEPING ENTRIES.  A HISTORY CLASS, A LITERATURE
CLASS, OR A SCIENCE CLASS IN A PAROCHIAL SCHOOL IS NOT A SEPARATE
INSTITUTE; IT IS PART OF THE ORGANIC WHOLE WHICH THE STATE SUBSIDIZES. 
THE FUNDS ARE USED IN THESE CASES TO PAY OR HELP PAY THE SALARIES OF
TEACHERS IN PAROCHIAL SCHOOLS; AND THE PRESENCE OF TEACHERS IS CRITICAL
TO THE ESSENTIAL PURPOSE OF THE PAROCHIAL SCHOOL, VIZ., TO ADVANCE THE
RELIGIOUS ENDEAVORS OF THE PARTICULAR CHURCH.  IT MATTERS NOT THAT THE
TEACHER RECEIVING TAXPAYERS' MONEY ONLY TEACHES RELIGION A FRACTION OF
THE TIME.  NOR DOES IT MATTER THAT HE OR SHE TEACHERS NO RELIGION.  THE
SCHOOL IS AN ORGANISM LIVING ON ONE BUDGET.  WHAT THE TAXPAYERS GIVE
FOR SALARIES OF THOSE WHO TEACH ONLY THE HUMANITIES OR SCIENCE WITHOUT
ANY TRACE OF PROSELYTIZING ENABLES THE SCHOOL TO USE ALL OF ITS OWN
FUNDS FOR RELIGIOUS TRAINING.  AS JUDGE COFFIN SAID, 316 F.SUPP.  112,
120, WE WOULD BE BLIND TO REALITIES IF WE LET "SOPHISTICATED
BOOKKEEPING" SANCTION "ALMOST TOTAL SUBSIDY OF A RELIGIOUS INSTITUTION
BY ASSIGNING THE BULK OF THE INSTITUTION'S EXPENSES TO 'SECULAR'
ACTIVITIES."  AND SOPHISTICATED ATTEMPTS TO AVOID THE CONSTITUTION ARE
JUST AS INVALID AS SIMPLE-MINDED ONES.  LANE V. WILSON, 307 U.S. 268,
275. 

IN MY VIEW THE TAXPAYERS' FORCED CONTRIBUTION TO THE PAROCHIAL
SCHOOLS IN THE PRESENT CASES VIOLATES THE FIRST AMENDMENT. 

/1/  A. STOKES & L. PFEFFER, CHURCH AND STATE IN THE UNITED STATES
229 (1964). 

/2/  IBID. 

/3/  DEEDY, SHOULD CATHOLIC SCHOOLS SURVIVE?, NEW REPUBLIC, MAR, 13,
1971, PP. 15, 16. 

/4/  ID., AT 17. 

/5/  IBID. 

/6/  STOKES & PFEFFER, SUPRA, N. 1, AT 231. 

/7/  ID., AT 231-239. 

/8/  ID., AT 237. 

/9/  IBID. 

/10/  R. BUTTS, THE AMERICAN TRADITION IN RELIGION AND EDUCATION 115
(1950). 

/11/  ID., AT 118.  AND SEE R. FINNEY, A BRIEF HISTORY OF THE
AMERICAN PUBLIC SCHOOL 44-45 (1924). 

/12/  SEE E. KNIGHT, EDUCATION IN THE UNITED STATES, 3, 314 (3D REV.
ED. 1951); E. CUBBERLEY, PUBLIC EDUCATION IN THE UNITED STATES 164 ET
SEQ. (1919). 

/13/  IN 1960 THE FEDERAL GOVERNMENT PROVDED $500 MILLION TO PRIVATE
COLLEGES AND UNIVERSITIES.  AMOUNTS CONTRIBUTED BY STATE AND LOCAL
GOVERNMENTS TO PRIVATE SCHOOLS AT ANY LEVEL WERE NEGLIGIBLE.  JUST ONE
DECADE LATER FEDERAL AID TO PRIVATE COLLEGES AND UNIVERSITIES HAD GROWN
TO $2.1 BILLION.  STATE AID HAD BEGUN AND REACHED $100 MILLION. 
STATITSTICAL ABSTRACT OF THE UNITED STATES 105 (1970).  AS THE PRESENT
CASES DEMONSTRATE, WE ARE NOW REACHING A POINT WHERE STATE AID IS BEING
GIVEN TO PRIVATE ELEMENTARY AND SECONDARY SCHOOLS AS WELL AS COLLEGES
AND UNIVERSITIES. 

/14/  DEEDY, SUPRA, N. 3, AT 16. 

/15/  S. CURTIS, HISTORY OF EDUCATION IN GREAT BRITAIN, 316-383 (5TH
ED. 1963); W. ALEXANDER, EDUCATION IN ENGLAND, C. II (2D ED. 1964). 

/16/  SEE PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, 534; MEYER V.
NEBRASKA, 262 U.S. 390, 402. 

/17/  GRANTS TO STUDENTS IN THE CONTEXT OF THE PROBLEMS OF
DESEGREGATED PUBLIC SCHOOLS HAVE WITHOUT EXCEPTION BEEN STRICKEN DOWN
AS TOOLS OF THE FORBIDDEN DISCRIMINATION.  SEE GRIFFIN V. SCHOOL BD. OF
PRINCE EDWARD COUNTY, 377 U.S. 218; HALL V. ST. HELENA PARISH SCHOOL
BD., 197 F.SUPP.  649, AFF'D, 368 U.S. 515; LEE V. MACON COUNTY BD.,
267 F.SUPP.  458, AFF'D SUB NOM. WALLACE V. UNITED STATES, 389 U.S.
215; POINDEXTER V. LOUISIANA FINANCIAL ASSISTANCE COMMISSION, 275
F.SUPP.  833, AFF'D, 389 U.S. 571; BROWN V. SOUTH CAROLINA STATE BD.,
296 F.SUPP.  199, AFF'D, 393 U.S. 222; COFFEY V. STATE EDUC.  FINANCE
COMMISSION, 296 F.SUPP.  1389; LEE V. MACON COUNTY BD., 231 F.SUPP. 
743. 

/18/  REMONSTRANCE PARA. 3.  THE MEMORIAL AND REMONSTRANCE AGAINST
RELIGIOUS ASSESSMENTS HAS BEEN REPRODUCED IN APPENDICES TO THE OPINION
OF RUTLEDGE, J., IN EVERSON, 330 U.S.,AT 63, AND TO THAT OF DOUGLAS,
J., IN WALZ, 397 U.S.,AT 719. 

/19/  REMONSTRANCE PARA. 11. 

/20/  "IN THE PAROCHIAL SCHOOLS ROMAN CATHOLIC INDOCTRINATION IS
INCLUDED IN EVERY SUBJECT.  HISTORY, LITERATURE, GEOGRAPHY, CIVICS, AND
SCIENCE ARE GIVEN A ROMAN CATHOLIC SLANT.  THE WHOLE EDUCATION OF THE
CHILD IS FILLED WITH PROPAGANDA.  THAT, OF COURSE, IS THE VERY PURPOSE
OF SUCH SCHOOLS, THE VERY REASON FOR GOING TO ALL OF THE WORK AND
EXPENSE OF MAINTAINING A DUAL SCHOOL SYSTEM.  THEIR PURPOSE IS NOT TO
MUCH TO EDUCATE, BUT TO INDOCTRINATE AND TRAIN, NOT TO TEACH SCRIPTURE
TRUTHS AND AMERICANISM, BUT TO MAKE LOYAL ROMAN CATHOLICS.  THE
CHILDREN ARE REGIMENTED, AND ARE TOLD WHAT TO WEAR, WHAT TO DO, AND
WHAT TO THINK."  L. BOETTNER, ROMAN CATHOLICISM 360 (1962). 

/21/  IT WAS SAID ON ORAL ARGUMENT THAT THE HANDBOOK SHOWN AS AN
EXHIBIT IN THE RECORD HAD BEEN SUPERSEDED.  THE PROVISIONS HEREINAFTER
QUOTED ARE FROM THE HANDBOOK AS IT READS AFTER ALL THE DELETIONS TO
WHICH WE WERE REFERRED. 

/22/  "THE USE OF SCHOOL TIME TO PARTICIPATE IN THE HOLY SACRIFICE
OF THE MASS ON THE FEASTS OF ALL SAINTS, ASCENSION, AND THE PATRONAL
SAINT OF THE PARISH OR SCHOOL, AS WELL AS DURING THE 40 HOURS DEVOTION,
IS PROPER AND COMMENDABLE." 

MR. JUSTICE MARHSALL, WHO TOOK NO PART IN THE CONSIDERATION OR
DECISION OF NO. 89, SEE ANTE, P. 625, WHILE INTIMATING NO VIEW AS TO
THE CONTINUING VITALITY OF EVERSON V. BOARD OF EDUCATION, 330 U.S. 1
(1947), CONCURS IN MR. JUSTICE DOUGLAS' OPINION COVERING NOS. 569 AND
570. 

MR. JUSTICE BRENNAN.  /0/ 

I AGREE THAT THE JUDGMENTS IN NOS. 569 AND 570 MUST BE AFFIRMED.  IN
MY VIEW THE JUDGMENT IN NO. 89 MUST BE REVERSED OUTRIGHT.  I DISSENT IN
NO. 153 INSOFAR AS THE PLURALITY OPINION AND THE OPINION OF MY BROTHER
WHITE SUSTAIN THE CONSTITUTIONALITY, AS APPLIED TO SECTARIAN
INSTITUTIONS, OF THE FEDERAL HIGHER EDUCATION FACILITIES ACT OF 1963,
AS AMENDED, 77 STAT. 363, 20 U.S.C. 711 ET SEQ. (1964 ED. AND SUPP.
V.).  IN MY VIEW THAT ACT IS UNCONSTITUTIONAL INSOFAR AS IT AUTHORIZES
GRANTS OF FEDERAL TAX MONIES TO SECTARIAN INSTITUTIONS, BUT IS
UNCONSTUTIONAL ONLY TO THAT EXTENT.  I THEREFORE THINK THAT OUR REMAND
OF THE CASE SHOULD BE LIMITED TO THE DIRECTION OF A HEARING TO
DETERMINE WHETHER THE FOUR INSTITUTIONAL APPELLEES HERE ARE SECTARIAN
INSTITUTIONS. 

I CONTINUE TO ADHERE TO THE VIEW THAT TO GIVE CONCRETE MEANING TO
THE ESTABLISHMENT CLAUSE 

"THE LINE WE MUST DRAW BETWEEN THE PERMISSIBLE AND THE IMPERMISSIBLE
IS ONE WHICH ACCORDS WITH HISTORY AND FAITHFULLY REFLECTS THE
UNDERSTANDING OF THE FOUNDING FATHERS.  IT IS A LINE WHICH THE COURT
HAS CONSISTENTLY SOUGHT TO MARK IN ITS DECISIONS EXPOUNDING THE
RELIGIOUS GUARANTEES OF THE FIRST AMENDMENT.  WHAT THE FRAMERS MEANT TO
FORECLOSE, AND WHAT OUR DECISIONS UNDER THE ESTABLISHMENT CLAUSE HAVE
FORBIDDEN, ARE THOSE INVOLVEMENTS OF RELIGIOUS WITH SECULAR
INSTITUTIONS WHICH (A) SERVE THE ESSENTIALLY RELIGIOUS ACTIVITIES OF
RELIGIOUS INSTITUTIONS; (B) EMPLOY THE ORGANS OF GOVERNMENT FOR
ESSENTIALLY RELIGIOUS PURPOSES; OR (C) USE ESSENTIALLY RELIGIOUS MEANS
TO SERVE GOVERNMENTAL ENDS, WHERE SECULAR MEANS WOULD SUFFICE.  WHEN
THE SECULAR AND RELIGIOUS INSTITUTIONS BECOME INVOLVED IN SUCH A
MANNER, THERE INHERE IN THE RELATIONSHIP PRECISELY THOSE DANGERS-- AS
MUCH TO CHURCH AS TO STATE-- WHICH THE FRAMERS FEARED WOULD SUBVERT
RELIGIOUS LIBERTY AND THE STRENGTH OF A SYSTEM OF SECULAR GOVERNMENT." 
ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203, 294 295 (1963)
(CONCURRING OPINION); WALZ V. TAX COMMISSION, 397 U.S. 664, 680-681
(1970) (CONCURRING OPINION).     THE COMMON FEATURE OF ALL THREE
STATUTES BEFORE US IS THE PROVISION OF A DIRECT SUBSIDY FROM PUBLIC
FUNDS FOR ACTIVITIES CARRIED ON BY SECTARIAN EDUCATIONAL INSTITUTIONS. 
WE HAVE SUSTAINED THE REIMBURSEMENT OF PARENTS FOR BUS FARES OF
STUDENTS UNDER A SCHEME APPLICABLE TO BOTH PUBLIC AND NONPUBLIC
SCHOOLS, EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, (1947).  WE HAVE
ALSO SUSTAINED THE LOAN OF TEXTBOOKS IN SECULAR SUBJECTS TO STUDENTS OF
BOTH PUBLIC AND NONPUBLIC SCHOOLS, BOARD OF EDUCATION V. ALLEN, 392
U.S. 236 (1968).  SEE ALSO BRADFIELD V. ROBERTS, 175 U.S. 291 (1899). 

THE STATUTORY SCHEMES BEFORE US, HOWEVER, HAVE FEATURES NOT PRESENT
IN EITHER THE EVERSON OR ALLEN SCHEMES.  FOR EXAMPLE, THE REIMBURSEMENT
OR THE LOAN OF BOOKS ENDED GOVERNMENT INVOLVEMENT IN EVERSON AND
ALLEN.  IN CONTRAST EACH OF THE SCHEMES HERE EXACTS A PROMISE IN SOME
FORM THAT THE SUBSIDY WILL NOT BE USED TO FINANCE COURSES IN RELIGIOUS
SUBJECTS-- PROMISES THAT MUST BE AND ARE POLICED TO ASSURE COMPLIANCE. 
AGAIN, ALTHOUGH THE FEDERAL SUBSIDY, SIMILAR TO THE EVERSON AND ALLEN
SUBSIDIES, IS AVAILABLE TO BOTH PUBLIC AND NONPUBLIC COLLEGES AND
UNIVERSITIES, THE RHODE ISLAND AND PENNSYLVANIA SUBSIDIES ARE
RESTRICTED TO NONPUBLIC SCHOOLS, AND FOR PRACTICAL PURPOSES TO ROMAN
CATHOLIC PAROCHIAL SCHOOLS.  /1/  THESE AND OTHER FEATURES I SHALL
MENTION MEAN FOR ME THAT EVERSON AND ALLEN DO NOT CONTROL THESE CASES. 
RATHER, THE HISTORY OF PUBLIC SUBSIDY OF SECTARIAN SCHOOLS AND THE
PURPOSES AND OPERATION OF THESE PARTICULAR STATUTES MUST BE EXAMINED TO
DETERMINE WHETHER THE STATUTES BREACH THE ESTABLISHMENT CLAUSE.  WALZ
V. TAX COMMISSION, SUPRA, AT 681 (CONCURRING OPINION). 

        I 

IN SHARP CONTRAST TO THE "UNDEVIATING ACCEPTANCE GIVEN RELIGIOUS TAX
EXEMPTIONS FROM OUR EARLIEST DAYS AS A NATION," IBID., SUBSIDY OF
CONTROVERSIES VERY SOON AFTER THE NATION WAS FORMED.  PUBLIC EDUCATION
WAS, OF COURSE, VIRTUALLY NONEXISTENT WHEN THE CONSTITUTION WAS
ADOPTED.  COLONIAL MASSACHUSETTS IN 1647 HAD DIRECTED TOWNS TO
ESTABLISH SCHOOLS, BENJAMIN FRANKLIN IN 1749 PROPOSED A PHILADELPHIA
ACADEMY, AND JEFFERSON LABORED TO ESTABLISH A PUBLIC SCHOOL SYSTEM IN
VIRGINIA.  /2/  BUT THERE WERE THE EXCEPTIONS.  EDUCATION IN THE
COLONIES WAS OVERWHELMINGLY A PRIVATE ENTERPRISE, USUALLY CARRIED ON AS
A DENOMINATIONAL ACTIVITY BY THE DOMINANT PROTESTANT SECTS.  IN POINT
OF FACT, GOVERNMENT GENERALLY LOOKED TO THE CHURCH TO PROVIDE
EDUCATION, AND OFTEN CONTRIBUTED SUPPORT THROUGH DONATIONS OF LAND AND
MONEY.  E. CUBBERLEY, PUBLIC EDUCATION IN THE UNITED STATE 171 (1919). 

NOR WAS THERE SUBSTANTIAL CHANGE IN THE YEARS IMMEDIATELY FOLLOWING
RATIFICATION OF THE CONSTITUTION AND THE BILL OF RIGHTS.  SCHOOLS
CONTINUED TO BE LOCAL AND, IN THE MAIN, DENOMINATIONAL INSTITUTIONS. 
/3/  BUT THE DEMAND FOR PUBLIC EDUCATION SOON EMERGED.  THE EVOLUTION
OF THE STRUGGLE IN NEW YORK CITY IS ILLUSTRATIVE.  /4/  IN 1786, THE
FIRST NEW YORK STATE LEGISLATURE ORDERED THAT ONE SECTION IN EACH
TOWNSHIP BE SET ASIDE FOR THE "GOSPEL AND SCHOOLS."  WITH NO PUBLIC
SCHOOLS, VARIOUS PRIVATE AGENCIES AND CHURCHES OPERATED "CHARITY
SCHOOLS" FOR THE POOR OF NEW YORK CITY AND RECEIVED MONEY FROM THE
STATE COMMON SCHOOL FUND.  THE FORERUNNER OF THE CITY'S PUBLIC SCHOOLS
WAS ORGANIZED IN 1805 WHEN DEWITT CLINTON FOUNDED "THE SOCIETY FOR
ESTABLISHMENT OF A FREE SCHOOL IN THE CITY OF NEW YORK FOR THE
EDUCATION OF SUCH POOR CHILDREN AS DO NOT BELONG TO OR ARE NOT PROVIDED
FOR BY ANY RELIGIOUS SOCIETY."  THE STATE AND CITY AIDED THE SOCIETY,
AND IT BUILT MANY SCHOOLS.  GRADUALLY, HOWEVER, COMPETITION AND
BICKERING AMONG THE FREE SCHOOL SOCIETY AND THE VARIOUS CHURCH SCHOOLS
DEVELOPED OVER THE APPORTIONMENT OF STATE SCHOOL FUNDS.  AS A RESULT,
IN 1825, THE LEGISLATURE TRANSFERRED TO THE CITY COUNCIL THE
RESPONSIBILITY FOR DISTRIBUTING NEW YORK CITY'S SHARE OF THE STATE
FUNDS.  THE COUNCIL STOPPED RELIGIOUS SOCIETIES WHICH OPERATED 16
PROTESTANT ORPHAN ASYLUM SOCIETY.  THEREAFTER, IN 1831, THE CATHOLIC
ORPHAN ASYLUM SOCIETY DEMANDED AND RECEIVED PUBLIC FUNDS TO OPERATE ITS
SCHOOLS BUT A REQUEST OF METHODISTS FOR FUNDS FOR THE SAME PURPOSE WAS
DENIED.  NINE YEARS LATER, THE CATHOLICS ENLARGED THEIR REQUEST FOR
PUBLIC MONIES TO INCLUDE ALL PAROCHIAL SCHOOLS, CONTENDING THAT THE
COUNCIL WAS SUBSIDIZING SECTARIAN BOOKS AND INSTRUCTION OF THE PUBLIC
SCHOOL SOCIETY, WHICH CLINTON'S FREE SCHOOL SOCIETY HAD BECOME.  THE
CITY'S SCOTCH PRESBYTERIAN AND JEWISH COMMUNITIES IMMEDIATELY FOLLOWED
WITH REQUESTS FOR FUNDS TO FINANCE THEIR SCHOOLS.  ALTHOUGH THE PUBLIC
SCHOOL SOCIETY UNDERTOOK TO REVISE ITS TEXTS TO MEET THE OBJECTIONS, IN
1842, THE STATE LEGISLATURE CLOSED THE BITTER CONTROVERSY BY ENACTING A
LAW THAT ESTABLISHED A CITY BOARD OF EDUCATION TO SET UP FREE PUBLIC
SCHOOLS, PROHIBITED THE DISTRIBUTION OF PUBLIC FUNDS TO SECTARIAN
SCHOOLS, AND PROHIBITED THE TEACHING OF SECTARIAN DOCTRINE IN ANY
PUBLIC SCHOOL. 

THE NATION'S RAPIDLY DEVELOPING RELIGIOUS HETEROGENEITY, THE TIDE OF
JACKSONIAN DEMOCRACY, AND GROWING URBANIZATION SOON LED TO WIDESPREAD
DEMANDS THROUGHOUT THE STATES FOR SECULAR PUBLIC EDUCATION.  AT THE
SAME TIME STRONG OPPOSITION DEVELOPED TO USE OF THE STATES'  TAXING
POWERS TO SUPPORT PRIVATE SECTARIAN SCHOOLS.  /5/  ALTHOUGH THE
CONTROVERSY OVER RELIGIOUS EXERCISES IN THE PUBLIC SCHOOLS CONTINUED
INTO THIS CENTURY, SCHEMPP, 374 U.S.,AT 268-277 (BRENNAN, J.,
CONCURRING), THE OPPONENTS OF SUBSIDY TO SECTARIAN SCHOOLS HAD LARGELY
WON THEIR FIGHT BY 1900.  IN FACT, AFTER 1840, NO EFFORTS OF SECTARIAN
SCHOOLS TO OBTAIN A SHARE OF PUBLIC SCHOOL FUNDS SUCCEEDED.  CUBBERLEY,
SUPRA, AT 179.  BETWEEN 1840 AND 1875, 19 STATES ADDED PROVISIONS TO
THEIR CONSTITUTIONS PROHIBITING THE USE OF PUBLIC SCHOOL FUNDS TO AID
SIMILAR PROVISIONS.  IN FACT, NO STATE ADMITTED TO THE UNION AFTER
1858, EXCEPT WEST VIRGINIA, OMITTED SUCH PROVISION FROM ITS FIRST
CONSTITUTION.  IBID.  TODAY FEWER THAN A HALF-DOZEN STATES OMIT SUCH
PROVISIONS FROM THEIR CONSTITUTIONS.  /6/  AND IN 1897, CONGRESS
INCLUDED IN ITS APPROPRIATION ACT FOR THE DISTRICT OF COLUMBIA A
STATEMENT DECLARING IT 

"TO BE THE POLICY OF THE GOVERNMENT OF THE UNITED STATES TO MAKE NO
APPROPRIATION OF MONEY OR PROPERTY FOR THE PURPOSE OF FOUNDING,
MAINTAINING, OR AIDING BY PAYMENT FOR SERVICES, EXPENSES, OR OTHERWISE,
ANY CHURCH OR RELIGIOUS DENOMINATION, OR ANY INSTITUTION OR SOCIETY
WHICH IS UNDER SECTARIAN OR ECCLESIASTICAL CONTROL."  29 STAT. 411. 

THUS FOR MORE THAN A CENTURY, THE CONSENSUS, ENFORCED BY
LEGISLATURES AND COURTS WITH SUBSTANTIAL CONSISTENCY, HAS BEEN THAT
PUBLIC SUBSIDY OF SECTARIAN SCHOOLS CONSTITUTES AN IMPERMISSIBLE
INVOLVEMENT OF SECULAR WITH RELIGIOUS INSTITUTIONS.  /7/  IF THIS
HISTORY IS NOT ITSELF COMPELLING AGAINST THE VALIDITY OF THE THREE
SUBSIDY STATUTES, IN THE SENSE WE FOUND IN WALZ THAT "UNDEVIATING
ACCEPTANCE" WAS HIGHLY SIGNIFICANT IN FAVOR OF THE VALIDITY OF
RELIGIOUS TAX EXEMPTION, OTHER FORMS OF GOVERNMENTAL INVOLVEMENT THAT
EACH OF THE THREE STATUTES REQUIRES TIP THE SCALES IN MY VIEW AGAINST
THE VALIDITY OF EACH OF THEM.  THESE ARE INVOLVEMENTS THAT THREATEN
"DANGERS-- AS MUCH TO CHURCH AS TO STATE-- WHICH THE FRAMERS FEARED
WOULD SUBVERT RELIGIIOUS LIBERTY AND THE STRENGTH OF A SYSTEM OF
SECULAR GOVERNMENT."  SCHEMPP, 374 U.S.,AT 295 (BRENNAN, J.,
CONCURRING).  "(GOVERNMENT AND RELIGION HAVE DISCRETE INTERESTS WHICH
ARE MUTUALLY BEST SERVED WHEN EACH AVOIDS TOO CLOSE A PROXIMITY TO THE
OTHER.  IT IS NOT ONLY THE NONBELIEVER WHO FEARS THE INJECTION OF
HIGH DEGREE IT IS THE DEVOUT BELIEVER WHO FEARS THE SECULARIZATION OF A
CREED WHICH BECOMES TOO DEEPLY INVOLVED WITH AND DEPENDENT UPON THE
GOVERNMENT."  ID., AT 259 (BRENNAN, J., CONCURRING).  ALL THREE OF
THESE STATUTES REQUIRE "TOO CLOSE A PROXIMITY" OF GOVERNMENT TO THE
SUBSIDIZED SECTARIAN INSTITUTIONS AND IN MY VIEW CREATE REAL DANGERS OF
"THE SECULARIZATION OF A CREED." 

        II 

THE RHODE ISLAND STATUTE REQUIRES ROMAN CATHOLIC TEACHERS TO
SURRENDER THEIR RIGHT TO TEACH RELIGION COURSES AND TO PROMISE NOT TO
"INJECT" RELIGIOUS TEACHING INTO THEIR SECULAR COURSES.  THIS HAS LED
AT LEAST ONE TEACHER TO STOP PRAYING WITH HIS CLASSES, /8/  A CONCRETE
TESTIMONIAL TO THE SELF-CENSORSHIP THAT INEVITABLY ACCOMPANIES STATE
REGULATION OF DELICATE FIRST AMENDMENT FREEDOMS.  CF. SMITH V.
CALIFORNIA, 361 U.S. 147 (1959); SPEISER V. RANDALL, 357 U.S. 513, 526
(1958).  BOTH THE RHODE ISLAND AND PENNSYLVANIA STATUTES PRESCRIBE
EXTENSIVE STANDARDIZATION OF THE CONTENT OF SECULAR COURSES, AND OF THE
TEACHING MATERIALS AND TEXTBOOKS TO BE USED IN TEACHING THE COURSES. 
AND THE REGULATIONS TO IMPLEMENT THOSE REQUIREMENTS NECESSARILY REQUIRE
POLICING OF INSTRUCTION IN THE SCHOOLS.  THE PICTURE OF STATE
INSPECTORS PROWLING THE HALLS OF PAROCHIAL SCHOOLS AND AUDITING
CLASSROOM INSTRUCTION SURELY RAISES MORE THAN AN IMAGINED SPECTER OF
GOVERNMENTAL "SECULARIZATION OF A CREED." 

THE SAME DANGERS ATTEND THE FEDERAL SUBSIDY EVEN IF LESS OBVIOUSLY. 
THE FEDERAL GOVERNMENT EXACTS A PROMISE THAT NO "SECTARIAN INSTRUCTION"
OR "RELIGIOUS WORSHIP" WILL TAKE PLACE IN A SUBSIDIZED BUILDING.  THE
OFFICE OF EDUCATION POLICES THE PROMISE.  /9/ IN ONE INSTANCE FEDERAL
OFFICIALS DEMANDED THAT A COLLEGE CEASE TEACHING A COURSE ENTITLED "THE
HISTORY OF METHODISM" IN A FEDERALLY ASSISTED BUILDING, ALTHOUGH THE
ESTABLISHMENT CLAUSE "PLAINLY DOES NOT FORECLOSE TEACHING ABOUT THE
HOLY SCRIPTURES OR ABOUT THE DIFFERENCES BETWEEN RELIGIOUS SECTS IN
CLASSES IN LITERATURE OR HISTORY."  SCHEMPP, 374 U.S.,AT 300 (BRENNAN,
J., CONCURRING).  THESE EXAMPLES ILLUSTRATE THE COMPLETE
INCOMPATIBILITY OF SUCH SURVEILLANCE WITH THE RESTRAINTS BARRING
INTERFERENCE WITH RELIGIOUS FREEDOM.  /10/ 

POLICING THE CONTENT OF COURSES, THE SPECIFIC TEXTBOOKS USED, AND
INDEED THE WORDS OF TEACHERS IS FAR DIFFERENT FROM THE LEGITIMATE
POLICING CARRIED ON UNDER STATE COMPULSORY ATTENDANCE LAWS OR LAWS
REGULATING MINIMUM LEVELS OF EDUCATIONAL ACHIEVEMENT.  GOVERNMENT'S
LEGITIMATE INTEREST IN ENSURING CERTAIN MINIMUM SKILL LEVELS AND THE
ACQUISITION OF CERTAIN KNOWLEDGE DOES NOT CARRY WITH IT POWER TO
PRESCRIBE WHAT SHALL NOT BE TAUGHT, OR WHAT METHODS OF INSTRUCTION
SHALL BE USED, OR WHAT OPINIONS THE TEACHER MAY OFFER IN THE COURSE OF
TEACHING. 

MOREOVER, WHEN A SECTARIAN INSTITUTION ACCEPTS STATE FINANCIAL AID
IT BECOMES OBLIGATED UNDER THE EQUAL PROTECTION CLUASE OF THE
FOURTEENTH AMENDMENT NOT TO DISCRIMINATE IN ADMISSIONS POLICIES AND
FACULTY SELECTION.  THE DISTRICT COURT IN THE RHODE ISLAND CASE
PINPOINTED THE DILEMMA: 

"APPLYING THESE STANDARDS TO PAROCHIAL SCHOOLS MIGHT WELL RESTRICT
THEIR ABILITY TO DISCRIMINATE IN ADMISSIONS POLICIES AND IN THE HIRING
AND FIRING OF TEACHERS.  AT SOME POINT THE SCHOOL BECOMES 'PUBLIC' FOR
MORE PURPOSES THAN THE CHURCH COULD WISH.  AT THAT POINT, THE CHURCH
MAY JUSTIFIABLY FEEL THAT ITS VICTORY ON THE ESTABLISHMENT CLAUSE HAS
MEANT ABANDONMENT OF THE FREE EXERCISE CLUASE."  316 F.SUPP.,AT 121-122
(CITATIONS OMITTED). 

        III 

IN ANY EVENT, I DO NOT BELIEVE THAT ELIMINATION OF THESE ASPECTS OF
"TOO CLOSE A PROXIMITY: WOULD SAVE THESE THREE STATUTES.  I EXPRESSED
THE VIEW IN WALZ THAT "(GENERAL SUBSIDIES OF RELIGIOUS ACTIVITIES
WOULD, OF COURSE, CONSTITUTE IMPERMISSIBLE STATE INVOLVEMENT WITH
RELIGION."  397 U.S.,AT 690 (CONCURRING OPINION).  I DO NOT THINK THE
SUBSIDIES UNDER THESE STATUTES FALL OUTSIDE "(GENERAL SUBSIDIES OF
RELIGIOUS ACTIVITIES" MERELY BECAUSE THEY ARE RESTRICTED TO SUPPORT OF
THE TEACHING OF SECULAR SUBJECTS.  IN WALZ, THE PASSIVE ASPECT OF THE
BENEFITS CONFERRED BY A TAX EXEMPTION, PARTICULARLY SINCE CESSATION OF
THE EXEMPTIONS MIGHT EASILY LEAD TO IMPERMISSIBLE INVOLVEMENTS AND
CONFLICTS, LED ME TO CONCLUDE THAT EXEMPTIONS WERE CONSISTENT WITH THE
FIRST AMENMENT VALUES.  HOWEVER, I CONTRASTED DIRECT GOVERNMENT
SUBSIDIES: 

     "TAX EXEMPTIONS AND GENERAL SUBSIDIES, HOWEVER, ARE

  QUALITATIVELY DIFFERENT.  THOUGH BOTH PROVIDE ECONOMIC

  ASSISTANCE, THEY DO SO IN FUNDAMENTALLY DIFFERENT WAYS.  A

  SUBSIDY INVOLVES THE DIRECT TRANSFER OF PUBLIC MONIES TO THE

  SUBSIDIZED ENTERPRISE AND USES RESOURCES EXACTED FROM TAXPAYERS

  AS A WHOLE.  AN EXEMPTION, ON THE OTHER HAND, INVOLVES NO SUCH

TRANSFER.  IT ASSISTS THE EXEMPTED ENTERPRISE ONLY PASSIVELY, BY

  RELIEVING A PRIVATELY FUNDED VENTURE OF THE BURDEN OF PAYING

  TAXES.  IN OTHER WORDS, '(IN THE CASE OF DIRECT SUBSIDY, THE

  STATE FORCIBLY DIVERTS THE INCOME OF BOTH BELIEVERS AND

  NONBELIEVERS TO CHURCHES,' WHILE '(IN THE CASE OF AN EXEMPTION,

  THE STATE MERELY REFRAINS FROM DIVERTING TO ITS OWN USES INCOME

  INDEPENDENTLY GENERATED BY THE CHURCHES THROUGH VOLUNTARY

  CONTRIBUTIONS.'  THUS, 'THE SYMBOLISM OF TAX EXEMPTION IS

  SIGNIFICANT AS A MANIFESTATION THAT ORGANIZED RELIGION IS NOT

  EXPECTED TO SUPPORT THE STATE; BY THE SAME TOKEN THE STATE IS NOT

  EXPECTED TO SUPPORT THE CHURCH.'"  397 U.S.,AT 690-691 (FOOTNOTES

 AND CITATIONS OMITTED) (CONCURRING OPINION). 

PENNSYLVANIA, RHODE ISLAND, AND THE FEDERAL GOVERNMENT ARGUE
STRENUOUSLY THAT THE GOVERNMENT MONIES IN ALL THESE CASES ARE NOT
"(GENERAL SUBSIDIES OF OF RELIGIOUS ACTIVITIES" BECAUSE THEY ARE PAID
SPECIFICALLY AND SOLELY FOR THE SECULAR EDUCATION THAT THE SECTARIAN
INSTITUTIONS PROVIDE.  /11/ 

BEFORE TURNING TO THE DECISIONS OF THIS COURT ON WHICH THIS ARGUMENT
IS BASED, IT IS IMPORTANT TO RECALL AGAIN THE HISTORY OF SUBSIDIES TO
CONSTITUTIONAL PROVISIONS FORBIDDING SUCH GRANTS, AS WELL AS THE WEIGHT
OF JUDICIAL AUTHORITY DISAPPROVING SUCH AID AS A VIOLATION OF OUR
TRADITION OF SEPARATION OF CHURCH AND STATE, REFLECTS A TIME-TESTED
JUDGMENT THAT SUCH GRANTS DO INDEED CONSTITUTE IMPERMISSIBLE AID TO
RELIGION.  SEE NN. 6 AND 7, SUPRA.  THE RECURRENT ARGUMENT,
CONSISTENTLY REJECTED IN THE PAST, HAS BEEN THAT GOVERNMENT GRANTS TO
"BECAUSE (THE SCHOOLS) RELIEVE THE STATE OF A BURDEN, WHICH IT WOULD
OTHERWISE BE ITSELF REQUIRED TO BEAR . . . THEY WILL RENDER A SERVICE
TO THE STATE BY PERFORMING FOR IT ITS DUTY OF EDUCATING THE CHILDREN OF
THE PEOPLE."  COOK COUNTY V. CHICAGO INDUSTRIAL SCHOOL, 125 ILL. 540,
571, 18 N.E. 183, 197 (1888).     NONETHELESS, IT IS ARGUED ONCE AGAIN
IN THESE CASES THAT SECTARIAN SCHOOLS AND UNIVERSITIES PERFORM TWO
SEPARABLE FUNCTIONS.  FIRST, THEY PROVIDE SECULAR EDUCATION, AND
SECOND, THEY TEACH THE TENETS OF A PARTICULAR SECT.  SINCE THE STATE
HAS DETERMINED THAT THE SECULAR EDUCATION PROVIDED IN SECTARIAN SCHOOLS
SERVES THE LEGITIMATE STATE INTEREST IN THE EDUCATION OF ITS CITIZENS,
IT IS CONTENDED THAT STATE AID SOLELY TO THE SECULAR EDUCATION FUNCTION
DOES NOT INVOLVE THE STATE IN AID TO RELIGION.  PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510 (1925), AND BOARD OF EDUCATION V. ALLEN, SUPRA,
ARE RELIED ON AS SUPPORT FOR THE ARGUMENT. 

OUR OPINION IN ALLEN RECOGNIZED THAT SECTARIAN SCHOOLS PROVIDE BOTH
A SECULAR AND A SECTARIAN EDUCATION: 

"(THIS COURT HAS LONG RECOGNIZED THAT RELIGIOUS SCHOOLS PURSUE TWO
GOALS, RELIGIOUS INSTRUCTION AND SECULAR EDUCATION.  IN THE LEADING
CASE OF PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510 (1925), THE COURT
HELD THAT . . . OREGON HAD NOT SHOWN THAT ITS INTEREST IN SECULAR
EDUCATION REQUIRED THAT ALL CHILDREN ATTEND PUBLICLY OPERATED SCHOOLS. 
A PREMISE OF THIS HOLDING WAS THE VIEW THAT THE STATE'S INTEREST IN
EDUCATION WOULD BE SERVED SUFFICIENTLY BY RELIANCE ON THE SECULAR
TEACHING THAT ACCOMPANIED RELIGIOUS TRAINING IN THE SCHOOLS MAINTAINED
BY THE SOCIETY OF SISTERS. 

        .          .          .          . 

"(THE CONTINUED WILLINGNESS TO RELY ON PRIVATE SCHOOL SYSTEMS,
INCLUDING PAROCHIAL SYSTEMS, STRONGLY SUGGESTS THAT A WIDE SEGMENT OF
INFORMED OPINION, LEGISLATIVE AND OTHERWISE, HAS FOUND THAT THOSE
SCHOOLS DO AN ACCEPTABLE JOB OF PROVIDING SECULAR EDUCATION TO THEIR
STUDENTS.  THIS JUDGMENT IS FURTHER EVIDENCE THAT PAROCHIAL SCHOOLS ARE
PERFORMING, IN ADDITION TO THEIR SECTARIAN FUNCTION, THE TASK OF
SECULAR EDUCATION."  BOARD OF EDUCATION V. ALLEN, 392 U.S.,AT 245, 247
248 (FOOTNOTE OMITTED). 

BUT I DO NOT READ PIERCE OR ALLEN AS SUPPORTING THE PROPOSITION THAT
PUBLIC SUBSIDY OF A SECTARIAN INSTITUTION'S SECULAR TRAINING IS
PERMISSIBLE STATE INVOLVEMENT.  I READ THEM AS SUPPORTING THE
PROPOSITION THAT AS AN IDENTIFIABLE SET OF SKILLS AND AN IDENTIFIABLE
QUANTUM OF KNOWLEDGE, SECULAR EDUCATION MAY BE EFFECTIVELY PROVIDED
EITHER IN THE RELIGIOUS CONTEXT OF PAROCHIAL SCHOOLS, OR OUTSIDE THE
CONTEXT OF RELIGION IN PUBLIC SCHOOLS.  THE STATE'S INTEREST IN SECULAR
EDUCATION MAY BE DEFINED BROADLY AS AN INTEREST IN ENSURING THAT ALL
CHILDREN WITHIN ITS BOUNDARIES ACQUIRE A MINIMUM LEVEL OF COMPETENCY IN
CERTAIN SKILLS, SUCH AS READING, WRITING, AND ARITHMETIC, AS WELL AS A
MINIMUM AMOUNT OF INFORMATION AND KNOWLEDGE IN CERTAIN SUBJECTS SUCH AS
HISTORY, GEOGRAPHY, SCIENCE, LITERATURE, AND LAW.  WITHOUT SUCH SKILLS
AND KNOWLEDGE, AN INDIVIDUAL WILL BE AT A SEVERE DISADVANTAGE BOTH IN
PARTICIPATING IN DEMOCRATIC SELF-GOVERNMENT AND IN EARNING A LIVING IN
A MODERN INDUSTRIAL ECONOMY.  BUT THE STATE HAS NO PROPER INTEREST IN
PRESCRIBING THE PRECISE FORUM IN WHICH SUCH SKILLS AND KNOWLEDGE ARE
LEARNED SINCE ACQUISITION OF THIS SECULAR EDUCATION IS NEITHER
INCOMPATIBLE WITH RELIGIOUS LEARNING, NOR IS IT INCONSISTENT WITH OR
INIMICAL TO RELIGIOUS PRECEPTS. 

WHEN THE SAME SECULAR EDUCATIONAL PROCESS OCCURS IN BOTH PUBLIC AND
TEXTBOOKS FOR USE IN THAT PROCESS TO STUDENTS IN BOTH PUBLIC AND
GIVING RELIGIOUS INSTRUCTION.  BUT SINCE THE TEXTBOOKS INVOLVED IN
ALLEN WOULD, AT LEAST IN THEORY, BE LIMITED TO SECULAR EDUCATION, NO
AID TO SECTARIAN INSTRUCTION WAS INVOLVED. 

MORE IMPORTANT, SINCE THE TEXTBOOKS IN ALLEN HAD BEEN PREVIOUSLY
PROVIDED BY THE PARENTS, AND NOT THE SCHOOLS, 392 U.S.,AT 244, N. 6, NO
AID TO THE INSTITUTION WAS INVOLVED.  RATHER, AS IN THE CASE OF THE BUS
TRANSPORTATION IN EVERSON, THE GENERAL PROGRAM OF PROVIDING ALL
CHILDREN IN THE STATE WITH FREE SECULAR TEXTBOOKS ASSISTED ALL PARENTS
IN SCHOOLING THEIR CHILDREN.  AND AS IN EVERSON, THERE WAS UNDOUBTEDLY
THE POSSIBILITY THAT SOME PARENTS MIGHT NOT HAVE BEEN ABLE TO EXERCISE
THEIR CONSTITUTIONAL RIGHT TO SEND THEIR CHILDREN TO PAROCHIAL SCHOOL
IF THE PARENTS WERE COMPELLED THEMSELVES TO PAY FOR TEXTBOOKS. 
HOWEVER, AS MY BROTHER BLACK WROTE FOR THE COURT IN EVERSON, 

"(CUTTING OFF CHURCH SCHOOLS FROM THESE (GENERAL) SERVICES, SO
SEPARATE AND SO INDISPUTABLY MARKED OFF FROM THE RELIGIOUS FUNCTION,
WOULD MAKE IT FAR MORE DIFFICULT FOR THE SCHOOLS TO OPERATE.  BUT SUCH
IS OBVIOUSLY NOT THE PURPOSE OF THE FIRST AMENDMENT.  THAT AMENDMENT
REQUIRES THE STATE TO BE A NEUTRAL IN ITS RELATIONS WITH GROUPS OF
RELIGIOUS BELIEVERS AND NON-BELIEVERS; IT DOES NOT REQUIRE THE STATE TO
BE THEIR ADVERSARY.  STATE POWER IS NO MORE TO BE USED SO AS TO
HANDICAP RELIGIONS THAN IT IS TO FAVOR THEM."  330 U.S.,AT 18. 

ALLEN, IN MY VIEW, SIMPLY SUSTAINED A STATUTE IN WHICH THE STATE WAS
"NEUTRAL IN ITS RELATIONS WITH GROUPS OF RELIGIOUS BELIEVERS AND NON
BELIEVERS."  THE ONLY CONTEXT IN WHICH THE COURT IN ALLEN EMPLOYED THE
DISTINCTION BETWEEN SECULAR AND RELIGIOUS IN A PAROCHIAL SCHOOL WAS TO
REACH ITS CONCLUSION THAT THE TEXTBOOKS THAT THE STATE WAS PROVIDING
COULD AND WOULD BE SECULAR.  /12/  THE PRESENT CASES, HOWEVER, INVOLVE
DIRECT SUBSIDIES OF TAX MONIES TO THE SCHOOLS THEMSELVES AND WE CANNOT
BLINK THE FACT THAT THE SECULAR EDUCATION THOSE SCHOOLS PROVIDE GOES
HAND IN HAND WITH THE RELIGIOUS MISSION THAT IS THE ONLY REASON FOR THE
SCHOOLS' EXISTENCE.  WITHIN THE INSTITUTION, THE TWO ARE INEXTRICABLY
INTERTWINED. 

THE DISTRICT COURT IN THE DICENSO CASE FOUND THAT ALL THE VARIED
ASPECTS OF THE PAROCHIAL SCHOOL'S PROGRAM-- THE NATURE OF ITS FACULTY,
ITS SUPERVISION, DECOR, PROGRAM, EXTRA-CURRICULAR ACTIVITIES,
ASSEMBLIES, COURSES, ETC.-- PRODUCED AN "INTANGIBLE 'RELIGIOUS
ATMOSPHERE,'" SINCE THE "DIOCESAN SCHOOL SYSTEM IS AN INTEGRAL PART OF
THE RELIGIOUS MISSION OF THE CATHOLIC CHURCH" AND "A POWERFUL VEHICLE
FOR TRANSMITTING THE CATHOLIC FAITH TO THE NEXT GENERATION."  316
F.SUPP.,AT 117-118.  THAT TEACHING CANNOT BE SEPARATED FROM THE
ENVIRONMENT IN WHICH IT OCCURS, FOR ITS INTEGRATION WITH THE RELIGIOUS
MISSION IS BOTH THE THEORY AND THE STRENGTH OF THE RELIGIOUS SCHOOL. 

THE COMMON INGREDIENT OF THE THREE PRONGS OF THE TEST SET FORTH AT
THE OUTSET OF THIS OPINION IS WHETHER THE STATUTES INVOLVE GOVERNMENT
IN THE "ESSENTIALLY RELIGIOUS ACTIVITIES" OF RELIGIOUS INSTITUTIONS. 
MY ANALYSIS OF THE OPERATION, PURPOSES, AND EFFECTS OF THESE STATUTES
LEADS ME INESCAPABLY TO THE CONCLUSION THAT THEY DO IMPERMISSIBLY
INVOLVE THE STATES AND THE FEDERAL GOVERNMENT WITH THE "ESSENTIALLY
RELIGIOUS ACTIVITIES" OF SECTARIAN EDUCATIONAL INSTITUTIONS.  MORE
SPECIFICALLY, FOR THE REASONS STATED, I THINK EACH GOVERNMENT USES
"ESSENTIALLY RELIGIOUS MEANS TO SERVE GOVERNMENTAL ENDS, WHERE SECULAR
MEANS WOULD SUFFICE."  THIS NATION LONG AGO COMMITTED ITSELF TO PRIMARY
RELIANCE UPON PUBLICLY SUPPORTED PUBLIC EDUCATION TO SERVE ITS
IMPORTANT GOALS IN SECULAR EDUCATION.  OUR RELIGIOUS DIVERSITY GAVE
STRONG IMPETUS TO THAT COMMITMENT. 

"(THE AMERICAN EXPERIMENT IN FREE PUBLIC EDUCATION AVAILABLE TO ALL
CHILDREN HAS BEEN GUIDED IN LARGE MEASURE BY THE DRAMATIC EVOLUTION OF
THE RELIGIOUS DIVERSITY AMONG THE POPULATION WHICH OUR PUBLIC SCHOOLS
SERVE . . . THE PUBLIC SCHOOLS ARE SUPPORTED ENTIRELY, IN MOST
COMMUNITIES, BY PUBLIC FUNDS-- FUNDS EXACTED NOT ONLY FROM PARENTS, NOR
ALONE FROM THOSE WHO HOLD PARTICULAR RELIGIOUS VIEWS, NOR INDEED FROM
THOSE WHO SUBSCRIBE TO ANY CREED AT ALL.  IT IS IMPLICIT IN THE HISTORY
AND CHARACTER OF AMERICAN PUBLIC EDUCATION THAT THE PUBLIC SCHOOLS
SERVE A UNIQUELY PUBLIC FUNCTION:  THE TRAINING OF AMERICAN CITIZENS IN
AN ATMOSPHERE FREE OF PAROCHIAL, DIVISIVE, OR SEPARATIST INFLUENCES OF
ANY SORT-- AN ATMOSPHERE IN WHICH CHILDREN MAY ASSIMILATE A HERITAGE
COMMON TO ALL AMERICAN GROUPS AND RELIGIONS.  THIS IS A HERITAGE
NEITHER THEISTIC NOR ATHEISTIC, BUT SIMPLY CIVIC AND PATRIOTIC." 
SCHEMPP, 374 U.S.,AT 241-242 (CITATION OMITTED) (BRENNAN, J.,
CONCURRING). 

I CONCLUDE THAT, IN USING SECTARIAN INSTITUTIONS TO FURTHER GOALS IN
SECULAR EDUCATION, THE THREE STATUTES DO VIOLENCE TO THE PRINCIPLE THAT
"GOVERNMENT MAY NOT EMPLOY RELIGIOUS MEANS TO SERVE SECULAR INTERESTS,
HOWEVER LEGITIMATE THEY MAY BE, AT LEAST WITHOUT THE CLEAREST
DEMONSTRATION THAT NONRELIGIOUS MEANS WILL NOT SUFFICE."  SCHEMPP,
SUPRA, AT 265 (BRENNAN, J., CONCURRING). 

        IV 

THE PLURALITY'S TREATMENT OF THE ISSUES IN TILTON, NO. 153, DIVERGES
SO SUBSTANTIALLY FROM MY OWN THAT I ADD THESE FURTHER COMMENTS.  I
BELIEVE THAT THE ESTABLISHMENT CLAUSE FORBIDS THE FEDERAL GOVERNMENT TO
PROVIDE FUNDS TO SECTARIAN UNIVERSITIES IN WHICH THE PROPAGATION AND
ADVANCEMENT OF A PARTICULAR RELIGION ARE A FUNCTION OR PURPOSE OF THE
INSTITUTION.  SINCE THE DISTRICT COURT MADE NO FINDINGS WHETHER THE
FOUR INSTITUTIONAL APPELLEES HERE ARE SECTARIAN, I WOULD REMAND THE
CASE TO THE DISTRICT COURT WITH DIRECTIONS TO DETERMINE WHETHER THE
INSTITUTIONAL APPELLEES ARE "SECTARIAN" INSTITUTIONS. 

I REACH THIS CONCLUSION FOR THE REASONS I HAVE STATED:  THE
NECESSARILY DEEP INVOLVEMENT OF GOVERNMENT IN THE RELIGIOUS ACTIVITIES
OF SUCH AN INSTITUTION THROUGH THE POLICING OF RESTRICTIONS, AND THE
FACT THAT SUBSIDIES OF TAX MONIES DIRECTLY TO A SECTARIAN INSTITUTION
NECESSARILY AID THE PROSELYTIZING FUNCTION OF THE INSTITUTION.  THE
PLURALITY ARGUES THAT NEITHER OF THESE DANGERS IS PRESENT.  /13/ 

AT THE RISK OF REPETITION, I EMPHASIZE THAT A SECTARIAN UNIVERSITY
IS THE EQUIVALENT IN THE REALM OF HIGHER EDUCATION OF THE CATHOLIC
ELEMENTARY SCHOOLS IN RHODE ISLAND; IT IS AN EDUCATIONAL INSTITUTION IN
WHICH THE PROPAGATION AND ADVANCEMENT OF A PARTICULAR RELIGION ARE A
PRIMARY FUNCTION OF THE INSTITUTION.  I DO NOT BELIEVE THAT
CONSTRUCTION GRANTS TO SUCH A SECTARIAN INSTITUTION ARE PERMISSIBLE. 
THE REASON IS NOT THAT RELIGION "PERMEATES" THE SECULAR EDUCATION THAT
IS PROVIDED.  RATHER, IT IS THAT THE SECULAR EDUCATION IS PROVIDED
WITHIN THE ENVIRONMENT OF RELIGION; THE INSTITUTION IS DEDICATED TO TWO
GOALS, SECULAR EDUCATION AND RELIGIOUS INSTRUCTION.  WHEN AID FLOWS
DIRECTLY TO THE INSTITUTION, BOTH FUNCTIONS BENEFIT.  THE PLURALITY
WOULD EXAMINE ONLY THE ACTIVITIES THAT OCCUR WITHIN THE FEDERALLY
ASSISTED BUILDING AND IGNORE THE RELIGIOUS NATURE OF THE SCHOOL OF
WHICH IT IS A PART.  THE "RELIGIOUS ENTERPRISE" AIDED BY THE
CONSTRUCTION GRANTS INVOLVES THE MAINTENANCE OF AN EDUCATIONAL
ENVIRONMENT-- WHICH INCLUDES HIGH-QUALITY, PURELY SECULAR EDUCATIONAL
COURSES-- WITHIN WHICH RELIGIOUS INSTRUCTION OCCURS IN A VARIETY OF
WAYS. 

THE PLURALITY ALSO ARGUES THAT NO IMPERMISSIBLE ENTANGLEMENT EXISTS
HERE.  MY BROTHER WHITE COGENTLY COMMENTS UPON THAT ARGUMENT:  "WHY THE
FEDERAL PROGRAM IN THE TILTON CASE IS NOT EMBROILED IN THE SAME
DIFFICULTIES (AS THE RHODE ISLAND PROGRAM) IS NEVER ADEQUATELY
EXPLAINED."  POST, AT 668.  I DO NOT SEE ANY SIGNIFICANT DIFFERENCE IN
THE FEDERAL GOVERNMENT'S TELLING THE SECTARIAN UNIVERSITY NOT TO TEACH
ANY NONSECULAR SUBJECTS IN A CERTAIN BUILDING, AND RHODE ISLAND'S
TELLING THE CATHOLIC SCHOOL TEACHER NOT TO TEACH RELIGION.  THE VICE IS
THE CREATION THROUGH SUBSIDY OF A RELATIONSHIP IN WHICH THE GOVERNMENT
POLICES THE TEACHING PRACTICES OF A RELIGIOUS SCHOOL OR UNIVERSITY. 
THE PLURALITY SUGGESTS THAT THE FACTS THAT COLLEGE STUDENTS ARE LESS
IMPRESSIONABLE AND THAT COLLEGE COURSES ARE LESS SUSCEPTIBLE TO
RELIGIOUS PERMEATION MAY LESSEN THE NEED FOR FEDERAL POLICING.  BUT THE
RECORD SHOWS THAT SUCH POLICING HAS OCCURRED AND OCCURRED IN A HEAVY
HANDED WAY.  GIVEN THE DANGERS OF SELF-CENSORSHIP IN SUCH A SITUATION,
I CANNOT AGREE THAT THE DANGERS OF ENTANGLEMENT ARE INSUBSTANTIAL. 
FINALLY, THE PLURALITY SUGGESTS THAT THE "NONIDEOLOGICAL" NATURE OF A
BUILDING, AS CONTRASTED WITH A TEACHER, REDUCES THE NEED FOR POLICING. 
BUT THE FEDERAL GOVERNMENT IMPOSES RESTRICTIONS ON EVERY CLASS TAUGHT
IN THE FEDERALLY ASSISTED BUILDING.  IT IS THEREFORE NOT THE
"NONIDEOLOGICAL" BUILDING THAT IS POLICED; RATHER, IT IS THE COURSES
GIVEN THERE AND THE TEACHERS WHO TEACH THEM.  THUS, THE POLICING IS
PRECISELY THE SAME AS UNDER THE STATE STATUTES, AND THAT IS WHAT
OFFENDS THE CONSTITUTION. 

        V 

I, THEREFORE, AGREE THAT THE TWO STATE STATUTES THAT FOCUS PRIMARILY
ON PROVIDING PUBLIC FUNDS TO SECTARIAN SCHOOLS ARE UNCONSTITUTIONAL. 
HOWEVER, THE FEDERAL STATUTE IN NO. 153 IS A GENERAL PROGRAM OF
CONSTRUCTION GRANTS TO ALL COLLEGES AND UNIVERSITIES, INCLUDING
ELIGIBILITY TO SECTARIAN INSTITUTIONS IS SEVERABLE FROM THE BROAD
GENERAL PROGRAM AUTHORIZED, I WOULD HOLD THE HIGHER EDUCATION
FACILITIES ACT UNCONSTITUTIONAL ONLY INSOFAR AS IT AUTHORIZED GRANTS OF
FEDERAL TAX MONIES TO SECTARIAN INSTITUTIONS-- INSTITUTIONS THAT HAVE A
PURPOSE OR FUNCTION TO PROPAGATE OR ADVANCE A PARTICULAR RELIGION. 
THEREFORE, IF THE DISTRICT COURT DETERMINES THAT ANY OF THE FOUR
INSTITUTIONAL APPELLEES HERE ARE "SECTARIAN," THAT COURT, IN MY VIEW,
SHOULD ENJOIN THE OTHER APPELLEES FROM MAKING GRANTS TO IT.     /0/
THIS OPINION ALSO APPLIES TO NO. 153, TILTON ET AL. V. RICHARDSON,
SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ET AL., POST, P. 672. 

/1/  AT THE TIME OF TRIAL, 95% OF THE ELEMENTARY SCHOOL CHIDREN IN
PRIVATE SCHOOLS IN RHODE ISLAND ATTENDED ROMAN CATHOLIC SCHOOLS.  ONLY
NONPUBLIC SCHOOL TEACHERS COULD RECEIVE THE SUBSIDY AND THEN ONLY IF
THEY TAUGHT IN SCHOOLS IN WHICH THE AVERAGE PER-PUPIL EXPENDITURE ON
SECULAR EDUCATION DID NOT EQUAL OR EXCEED THE AVERAGE FOR THE STATE'S
PUBLIC SCHOOLS.  SOME 250 OF THE 342 LAY TEACHERS EMPLOYED IN RHODE
ISLAND ROMAN CATHOLIC SCHOOLS HAD APPLIED FOR AND BEEN DECLARED
ELIGIBLE FOR THE SUBSIDY.  TO RECEIVE IT THE TEACHER MUST (1) HAVE A
STATE TEACHING CERTIFICATE; (2) TEACH EXCLUSIVELY SECULAR SUBJECTS
TAUGHT IN THE STATE'S PUBLIC SCHOOLS; (3) USE ONLY TEACHING MATERIALS
APPROVED FOR USE IN THE PUBLIC SCHOOLS; (4) NOT TEACH RELIGION; AND (5)
PROMISE IN WRITING NOT TO TEACH A COURSE IN RELIGION WHILE RECEIVING
THE SALARY SUPPLEMENT. 

UNLIKE THE RHODE ISLAND CASE, THE PENNSYLVANIA CASE LACKS A FACTUAL
RECORD SINCE THE COMPLAINT WAS DISMISSED ON MOTION.  WE MUST THEREFORE
DECIDE THE CONSTITUTIONAL CHALLENGE AS ADDRESSED TO THE FACE OF THE
PENNSYLVANIA STATUTE.  APPELLANTS ALLEGE THAT THE NONPUBLIC SCHOOLS ARE
SEGREGATED IN PENNSYLVANIA BY RACE AND RELIGION AND THAT THE ACT
PERPETRATES AND PROMOTES THE SEGREGATION OF RACES "WITH THE ULTIMATE
RESULT OF PROMOTING TWO SCHOOL SYSTEMS IN PENNSYLVANIA-- A PUBLIC
SCHOOL SYSTEM PREDOMINANTLY BLACK, POOR AND INFERIOR AND A PRIVATE,
SUBSIDIZED SCHOOL SYSTEM PREDOMINANTLY WHITE, AFFLUENT AND SUPERIOR." 
BRIEF FOR APPELLANTS LEMON ET AL. 9.  THE DISTRICT COURT HELD THAT
APPELLANTS LACKED STANDING TO ASSERT THIS EQUAL PROTECTION CLAIM.  IN
MY VIEW THIS WAS PLAIN ERROR. 

/2/  E. CUBBERLEY, PUBLIC EDUCATION IN THE UNITED STATES 17 (1919);
ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203, 238 N. 7 AND
AUTHORITIES CITED THEREIN (BRENNAN, J., CONCURRING). 

/3/  C. ANTIEAU, A. DOWNEY, E. ROBERTS, FREEDOM FROM FEDERAL
ESTABLISHMENT 174 (1964). 

/4/  B. CONFREY, SECULARISM IN AMERICAN EDUCATION:  ITS HISTORY 127
129 (1931). 

/5/  SEE GENERALLY R. BUTTS, THE AMERICAN TRADITION IN RELIGION AND
EDUCATION 111-145 (1950); 2 A.STOKES, CHURCH AND STATE IN THE UNITED
STATES 47-72 (1950); CUBBERLEY, SUPRA N. 2, AT 155-181. 

/6/  SEE ALA. CONSTR., ART XIV, SEC. 263; ALASKA CONST., ART. VII,
SEC. 1; ARIZ. CONST., ART. II, SEC. 12, ART. XI, SECS. 7, 8; ARK.
CONST., ART. XIV, SEC. 2; CALIF. CONST., ART. IX, SEC. 8; COLO. CONST.,
ART. IX, SEC. 7; CONN. CONST., ART. VIII, SEC. 4; DEL. CONST., ART. X,
SEC. 3; FLA. CONST., DECL.  OF RIGHTS, ART. I, SEC. 3; GA. CONST., ART.
VIII, SECS. 12, PAR. 1; HAWAII CONST., ART. IX, SEC. 1; IDAHO CONST.,
ART. IX, SEC. 5; ILL. CONST., ART. VIII, SEC. 3; IND. CONST., ART. 8,
SEC. 3; KAN. CONST., ART. 6, SEC. 6(C); KY. CONST., SEC. 189; LA.
CONST., ART. XII, SEC. 13; MASS. CONST., AMEND. ART. XLVI, SEC. 2;
MICH. CONST., ART. I, SEC. 4;; MINN. CONST., ART. VIII, SEC. 2; MISS. 
CONST., ART. 8, SEC. 208; MO. CONST., ART. IX, SEC. 8; MONT. CONST.,
ART. XI, SEC. 8; NEB. CONST., ART. VII, SEC. 11; NEV. CONST., ART.11,
SEC. 10; N.H. CONST., PT. II, ART. 83; N.J. CONST., ART. VIII, SEC. 4,
PAR. 2; N. MEX.  CONST., ART. XII, SEC. 3; N.Y. CONST., ART. XI, SEC.
3; N. CAR.  CONST., ART. IX, SECS. 4, 12; N. DAK.  CONST., ART. VII,
SEC. 152; OHIO CONST., ART. VI, SEC. 2; OKLA. CONST., ART. II, SEC. 5;
ORE.  CONST., ART. VIII, SEC. 2; PENN.  CONST., ART. 3, SEC. 15; R.I.
CONST., ART. XII, SEC. 4; S.C. CONST., ART. XI, SEC. 9; S. DAK. 
CONST., ART. VIII, SEC. 16; TENN. CONST., ART. XI, SEC. 12; TEX.
CONST., ART. VII, SEC. 5; UTAH CONST., ART. X, SEC. 13; VA. CONST.,
ART. IX, SEC. 141; WASH. CONST., ART. IX, SEC. 4; W. VA. CONST., ART.
XII, SEC. 4; WIS. CONST., ART. I. SEC. 18, ART. X, SEC. 2; WYO. CONST.,
ART. 7, SEC. 8. 

THE OVERWHELMING MAJOIRTY OF THESE CONSTITUTIONAL PROVISIONS EITHER
PROHIBIT EXPENDITURES OF PUBLIC FUNDS ON SECTARIAN SCHOOLS, OR PROHIBIT
THE EXPENDITURE OF PUBLIC SCHOOL FUNDS FOR ANY PURPOSE OTHER THAN
SUPPORT OF PUBLIC SCHOOLS.  FOR A DISCUSSION AND CATEGORIZATION OF THE
VARIOUS CONSTITUTIONAL FORMULATIONS, SEE NOTE, CATHOLIC SCHOOLS AND
PUBLIC MONEY, 50 YALE L.J. 917 (1941).  MANY OF THE CONSTITUTIONAL
PROVISIONS ARE COLLECTED IN B. CONFREY, SECULARISM IN AMERICAN
EDUCATION:  ITS HISTORY 47-125 (1931). 

MANY STATE CONSTITUTIONS EXPLICITLY APPLY THE PROHIBITION TO AID TO
SEC. 7; IDAHO CONST., ART. IX, SEC. 5; ILL. CONST., ART. VIII, SEC. 3;
KAN. CONST., ART. 6, SEC. 6(C); MASS. CONST., AMEND. ART. XLVI, SEC. 2;
MO. CONST., ART. IX, SEC. 8; MONT. CONST., ART. XI, SEC. 8; NEB.
CONST., ART. VII, SEC. 11; N. MEX.  CONST., ART. XII, SEC. 3; S.C.
CONST., ART. XI, SEC. 9; UTAH CONST., ART. X, SEC. 13; WYO. CONST.,
ART. 7, SEC. 8.  AT LEAST ONE JUDICIAL DECISION CONSTRUING THE WORD
"SCHOOLS" HELD THAT THE WORD DOES NOT INCLUDE COLLEGES AND
UNIVERSITIES, OPINION OF THE JUSTICES, 214 MASS. 599, 102 N.E. 464
(1913), BUT THAT DECISION WAS OVERRULED BY CONSTITUTIONAL AMENDMENT. 
MASS. CONST., AMEND. ART. XLVI, SEC. 2. 

/7/  SEE, ELG., WRIGHT V. SCHOOL DIST., 151 KAN. 485, 99 P.2D 737
(1940); ATCHISON, T. & S.F.R.CO. V. CITY OF ATCHISON, 47 KAN. 712, 28
P. 1000 (1892); WILLIAMS V. BOARD OF TRUSTEES, 173 KY. 708, 191 S.W.
507 (1917); OPINION OF THE JUSTICES, 214 MASS. 599, 102 N.E. 464
(1913); JENKINS V. ANDOVER, 103 MASS. 94 (1869); OTKEN V. LAMKIN, 56
MISS.  758 (1879); HARFST V. HOEGEN, 349 MO. 808, 163 S.W. 2D 609
(1942); STATE EX REL. PUBLIC SCHOOL DIST. V. TAYLOR, 122 NEB. 454, 240
N.W. 573 (1932); STATE EX REL. NEVADA ORPHAN ASYLUM V. HALLOCK, 16 NEV.
373 (1932); SYNOD OF DAKOTA V. STATE, 2 S.D. 366, 50 N.W. 632, (1891). 

/8/  "ALREADY THE ACT HAS RESTRICTED THE ROLE OF TEACHERS.  THE
EVIDENCE BEFORE US INDICATES THAT SOME OTHERWISE QUALIFIED TEACHERS
HAVE STOPPED TEACHING COURSES IN RELIGION IN ORDER TO QUALIFY FOR AID
UNDER THE ACT.  ONE TEACHER, IN FACT, TESTIFIED THAT HE NO LONGER PRAYS
WITH HIS CLASS LEST HE ENDANGER HIS SUBSIDY."  316 F.SUPP.,AT 121. 

/9/  THE OFFICE OF EDUCATION STIPULATED AS FOLLOWS: 

"THE OFFICE OF EDUCATION IS NOW ENGAGED IN MAKING A SERIES OF ONSITE
REVIEWS OF COMPLETED PROJECTS TO VERIFY THAT CONDITIONS UNDER WHICH
FEDERAL ASSISTANCE WAS PROVIDED ARE BEING IMPLEMENTED.  DURING THESE
VISITS, CLASS SCHEDULES AND COURSE DESCRIPTIONS CONTAINED IN THE SCHOOL
CATALOG ARE ANALYZED TO ASCERTAIN THAT NOTHING IN THE NATURE OF
OF FEDERAL FUNDS.  IF THERE IS FOUND TO BE AN INDICATION THAT A PORTION
OF ACADEMIC FACILITIES CONSTRUCTED WITH FEDERAL ASSISTANCE IS USED IN
ANY WAY FOR SECTARIAN PURPOSES, EITHER THE QUESTIONABLE PRACTICE MUST
BE TERMINATED OR THE INSTITUTION MUST ASSUME FULL RESPONSIBILITY FOR
THE COST OF CONSTRUCTING THE AREA INVOLVED."  APP. IN NO. 153, P. 82. 

/10/  THE PLURALITY OPINION IN NO. 153 WOULD STRIKE DOWN THE 20-YEAR
"PERIOD OF FEDERAL INTEREST, 20 U.S.C. 754(A), UPON THE GROUND THAT
"(THE RESTRICTIVE OBLIGATIONS OF A RECIPIENT INSTITUTION UNDER SEC.
751(A)(2) CANNOT, COMPATIBLY WITH THE RELIGION CLAUSES, EXPIRE WHILE
THE BUILDING HAS SUBSTANTIAL VALUE."  POST, AT 683.  THUS THE
SURVEILLANCE CONSTITUTING THE "TOO CLOSE A PROXIMITY" WHICH FOR ME
OFFENDS THE ESTABLISHMENT CLAUSE CONTINUES FOR THE LIFE OF THE
BUILDING. 

/11/  THE PENNSYLVANIA STATUTE DIFFERS FROM RHODE ISLAND'S IN
PROVIDING THE SUBSIDY WITHOUT REGARD TO WHETHER THE SECTARIAN SCHOOL'S
AVERAGE PER-PUPIL EXPENDITURE ON SECULAR EDUCATION EQUALS OR EXCEEDS
THE AVERAGE OF THE STATE'S PUBLIC SCHOOLS.  NOR IS THERE ANY LIMITATION
OF THE SUBSIDY TO NONPUBLIC SCHOOLS THAT ARE FINANCIALLY EMBARRASSED. 
THUS THE STATUTE ON ITS FACE PERMITS USE OF THE STATE SUBSIDY FOR THE
PURPOSE OF MAINTAINING OR ATTRACTING AN AUDIENCE FOR RELIGIOUS
EDUCATION, AND ALSO PERMITS SECTARIAN SCHOOLS NOT NEEDING THE AID TO
APPLY IT TO EXCEED THE QUALITY OF SECULAR EDUCATION PROVIDED IN PUBLIC
SCHOOLS.  THESE FEATURES OF THE PENNSYLVANIA SCHEME SEEM TO ME TO
INVALIDATE IT UNDER THE ESTABLISHMENT CLAUSE AS GRANTING PREFERENCES TO

/12/  THE THREE DISSENTERS IN ALLEN FOCUSED PRIMARILY ON THEIR
DISAGREEMENT WITH THE COURT THAT THE TEXTBOOKS PROVIDED WOULD BE
SECULAR.  SEE 392 U.S.,AT 252-253 (BLACK, J., DISSENTING); ID., AT 257
(DOUGLAS, J., DISSENTING); ID., AT 270 (FORTAS, J., DISSENTING). 

/13/  MUCH OF THE PLURALITY'S ARGUMENT IS DIRECTED AT ESTABLISHING
THAT THE SPECIFIC INSTITUTIONAL APPELLEES HERE, AS WELL AS MOST CHURCH
RELATED COLLEGES, ARE NOT SECTARIAN IN THAT THEY DO NOT HAVE A PURPOSE
OR FUNCTION TO ADVANCE OR PROPAGATE A SPECIFIC RELIGION.  THESE
QUESTIONS MUST AWAIT HEARINGS AND FINDINGS BY THE DISTRICT COURT. 

MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENTS IN NO. 153 (POST, P.
672) AND NO. 89 AND DISSENTING IN NOS. 569 AND 570. 

IT IS OUR GOOD FORTUNE THAT THE STATES OF THIS COUNTRY LONG AGO
RECOGNIZED THAT INSTRUCTION OF THE YOUNG AND OLD RANKS HIGH ON THE
SCALE OF PROPER GOVERNMENTAL FUNCTIONS AND NOT ONLY UNDERTOOK SECULAR
EDUCATION AS A PUBLIC RESPONSIBILITY BUT ALSO REQUIRED COMPULSORY
ATTENDANCE AT SCHOOL BY THEIR YOUNG.  HAVING RECOGNIZED THE VALUE OF
EDUCATED CITIZENS AND ASSUMED THE TASK OF EDUCATING THEM, THE STATES
NOW BEFORE US ASSERT A RIGHT TO PROVIDE FOR THE SECULAR EDUCATION OF
CHILDREN WHETHER THEY ATTEND PUBLIC SCHOOLS OR CHOOSE TO ENTER PRIVATE
INSTITUTIONS, EVEN WHEN THOSE INSTITUTIONS ARE CHURCH-RELATED.  THE
FEDERAL GOVERNMENT ALSO ASSERTS THAT IT IS ENTITLED, WHERE REQUESTED,
TO CONTRIBUTE TO THE COST OF SECULAR EDUCATION BY FURNISHING BUILDINGS
AND FACILITIES TO ALL INSTITUTIONS OF HIGHER LEARNING, PUBLIC AND
PRIVATE ALIKE.  BOTH THE UNITED STATES AND THE STATES URGE THAT IF
PARENTS CHOOSE TO HAVE THEIR CHILDREN RECEIVE INSTRUCTION IN THE
REQUIRED SECULAR SUBJECTS IN A SCHOOL WHERE RELIGION IS ALSO TAUGHT AND
A RELIGIOUS ATMOSPHERE MAY PREVAIL, PART OR ALL OF THE COST OF SUCH
SECULAR INSTRUCTION MAY BE PAID FOR BY GOVERNMENTAL GRANTS TO THE
RELIGIOUS INSTITUTION CONDUCTING THE SCHOOL AND SEEKING THE GRANT. 
THOSE WHO CHALLENGE THIS POSITION WOULD BAR OFFICIAL CONTRIBUTTIONS TO
SECULAR EDUCATION WHERE THE FAMILY PREFERS THE PAROCHIAL TO BOTH THE
PUBLIC AND NONSECTARIAN PRIVATE SCHOOL. 

THE ISSUE IS FAIRLY JOINED.  IT IS PRECISELY THE KIND OF ISSUE THE
CONSTITUTION CONTEMPLATES THIS COURT MUST ULTIMATELY DECIDE.  THIS IS
TRUE ALTHOUGH NEITHER AFFIRMANCE NOR REVERSAL OF ANY OF THESE CASES
FOLLOWS AUTOMATICALLY FROM THE SPARE LANGUAGE OF THE FIRST AMENDMENT,
FROM ITS HISTORY, OR FROM THE CASES OF THIS COURT CONSTRUING IT AND
EVEN THOUGH REASONABLE MEN CAN VERY EASILY AND SENSIBLY DIFFER OVER THE
IMPORT OF THAT LANGUAGE. 

BUT, WHILE THE DECISION OF THE COURT IS LEGITIMATE, IT IS SURELY
QUITE WRONG IN OVERTURNING THE PENNSYLVANIA AND RHODE ISLAND STATUTES
ON THE GROUND THAT THEY AMOUNT TO AN ESTABLISHMENT OF RELIGION
FORBIDDEN BY THE FIRST AMENDMENT. 

NO ONE IN THESE CASES QUESTIONS THE CONSTITUTIONAL RIGHT OF PARENTS
TO SATISFY THEIR STATE-IMPOSED OBLIGATION TO EDUCATE THEIR CHILDREN BY
SENDING THEM TO PRIVATE SCHOOLS, SECTARIAN OR OTHERWISE, AS LONG AS
THOSE SCHOOLS MEET MINIMUM STANDARDS ESTABLISHED FOR SECULAR
INSTRUCTION.  THE STATES ARE NOT ONLY PERMITTED, BUT REQUIRED BY THE
CONSTITUTION, TO FREE STUDENTS ATTENDING PRIVATE SCHOOLS FROM ANY
PUBLIC SCHOOL ATTENDANCE OBLIGATION.  PIERCE V. SOCIETY OF SISTERS, 268
U.S. 510 (1925).  THE STATES MAY ALSO FURNISH TRANSPORTATION FOR
STUDENTS, EVERSON V. BOARD OF EDUCATION, 330 U.S. 1 (1947), AND BOOKS
FOR TEACHING SECULAR SUBJECTS TO STUDENTS ATTENDING PAROCHIAL AND OTHER
PRIVATE AS WELL AS PUBLIC SCHOOLS, BOARD OF EDUCATION V. ALLEN, 392
U.S. 236 (1968); WE HAVE ALSO UPHELD ARRANGEMENTS WHEREBY STUDENTS ARE
RELEASED FROM PUBLIC SCHOOL CLASSES SO THAT THEY MAY ATTEND RELIGIOUS
INSTRUCTION.  ZORACH V. CLAUSON, 343 U.S. 306 (1952).  OUTSIDE THE
FIELD OF EDUCATION, WE HAVE UPHELD SUNDAY CLOSING LAWS, MCGOWAN V.
MARYLAND, 366 U.S. 420 (1961), AND STATE AND FEDERAL LAWS EXEMPTING
CHURCH PROPERTY AND CHURCH ACTIVITY FROM TAXATION, WALZ V. TAX
COMMISSION, 397 U.S. 664 (1970), AND GOVERNMENTAL GRANTS TO RELIGIOUS
ORGANIZATIONS FOR THE PURPOSE OF FINANCING IMPROVEMENTS IN THE
FACILITIES OF HOSPITALS MANAGED AND CONTROLLED BY RELIGIOUS ORDERS. 
BRADFIELD V. ROBERTS, 175 U.S. 291 (1899). 

OUR PRIOR CASES HAVE RECOGNIZED THE DUAL ROLE OF PAROCHIAL SCHOOLS
IN AMERICAN SOCIETY:  THEY PERFORM BOTH RELIGIOUS AND SECULAR
FUNCTIONS.  SEE BOARD OF EDUCATION V. ALLEN, SUPRA, AT 248.  OUR CASES
ALSO RECOGNIZE THAT LEGISLATION HAVING A SECULAR PURPOSE AND EXTENDING
GOVERNMENTAL ASSISTANCE TO SECTARIAN SCHOOLS IN THE PERFORMANCE OF
THEIR SECULAR FUNCTIONS DOES NOT CONSTITUTE "LAWS) RESPECTING AN
ESTABLISHMENT OF RELIGION" FORBIDDEN BY THE FIRST AMENDMENT MERELY
BECAUSE A SECULAR PROGRAM MAY INCIDENTALLY BENEFIT A CHURCH IN
FULFILLING ITS RELIGIOUS MISSION.  THAT RELIGION MAY INDIRECTLY BENEFIT
FROM GOVERNMENTAL AID TO THE SECULAR ACTIVITIES OF CHURCHES DOES NOT
CONVERT THAT AID INTO AN IMPERMISSIBLE ESTABLISHMENT OF RELIGION. 

THIS MUCH THE COURT SQUARELY HOLDS IN THE TILTON CASE, WHERE IT ALSO
EXPRESSLY REJECTS THE NOTION THAT PAYMENTS MADE DIRECTLY TO A RELIGIOUS
INSTITUTION ARE, WITHOUT MORE, FORBIDDEN BY THE FIRST AMENDMENT.  IN
TILTON, THE COURT DECIDES THAT THE FEDERAL GOVERNMENT MAY FINANCE THE
SEPARATE FUNCTION OF SECULAR EDUCATION CARRIED ON IN A PAROCHIAL
SETTING.  IT REACHES THIS RESULT ALTHOUGH SECTARIAN INSTITUTIONS
UNDENIABLY WILL OBTAIN SUBSTANTIAL BENEFIT FROM FEDERAL AID; WITHOUT
FEDERAL FUNDING TO PROVIDE ADEQUATE FACILITIES FOR SECULAR EDUCATION,
THE STUDENT BODIES OF THOSE INSTITUTIONS MIGHT REMAIN STATIONARY OR
EVEN DECREASE IN SIZE AND THE INSTITUTIONS MIGHT ULTIMATELY HAVE TO
CLOSE THEIR DOORS.     IT IS ENOUGH FOR ME THAT THE STATES AND THE
FEDERAL GOVERNMENT ARE FINANCING A SEPARABLE SECULAR FUNCTION OF
OVERRIDING IMPORTANCE IN ORDER TO SUSTAIN THE LEGISLATION HERE
CHALLENGED.  THAT RELIGION AND PRIVATE INTERESTS OTHER THAN EDUCATION
MAY SUBSTANTIALLY BENEFIT DOES NOT CONVERT THESE LAWS INTO
IMPERMISSIBLE ESTABLISHMENTS OF RELIGION. 

IT IS UNNECESSARY, THEREFORE, TO URGE THAT THE FREE EXERCISE CLAUSE
OF THE FIRST AMENDMENT AT LEAST PERMITS GOVERNMENT IN SOME RESPECTS TO
MODIFY AND MOLD ITS SECULAR PROGRAMS OUT OF EXPRESS CONCERN FOR FREE
EXERCISE VALUES.  SEE WALZ V. TAX COMMISSION, SUPRA, AT 673 (TAX
EXEMPTION FOR RELIGIOUS PROPERTIES; "(THE LIMITS OF PERMISSIBLE STATE
ACCOMMODATION TO RELIGION ARE BY NO MEANS CO-EXTENSIVE WITH THE
NONINTERFERENCE MANDATED BY THE FREE EXERCISE CLAUSE.  TO EQUATE THE
TWO WOULD BE TO DENY A NATIONAL HERITAGE WITH ROOTS IN THE REVOLUTION
ITSELF"); SHERBERT V. VERNER, 374 U.S. 398 (1963) (EXEMPTION OF SEVENTH
DAY ADVENTIST FROM ELIGIBILITY REQUIREMENTS FOR UNEMPLOYMENT INSURANCE
NOT ONLY PERMITTED BUT REQUIRED BY THE FREE EXERCISE CLAUSE); ZORACH V.
CLAUSON, SUPRA, AT 313-314 (SUTDENTS EXCUSED FROM REGULAR PUBLIC SCHOOL
ROUTINE TO OBTAIN RELIGIOUS INSTRUCTION; "(WHEN THE STATE ENCOURAGES
RELIGIOUS INSTRUCTION . . . IT FOLLOWS THE BEST OF OUR TRADITIONS.  FOR
IT THEN RESPECTS THE RELIGIOUS NATURE OF OUR PEOPLE AND ACCOMMODATES
THE PUBLIC SERVICE TO THEIR SPIRITUAL NEEDS").  SEE ALSO ABINGTON
SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203, 308 (1963) (STEWART, J.,
DISSENTING); WELSH V. UNITED STATES, 398 U.S. 333, 367 (1970) (WHITE,
J., DISSENTING).  THE ESTABLISHMENT CLAUSE, HOWEVER, COEXISTS IN THE
FIRST AMENDMENT WITH THE FREE EXERCISE CLAUSE AND THE LATTER IS SURELY
RELEVANT IN CASES SUCH AS THESE.  WHERE A STATE PROGRAM SEEKS TO ENSURE
THE PROPER EDUCATION OF ITS YOUNG, IN PRIVATE AS WELL AS PUBLIC
SCHOOLS, FREE EXERCISE CONSIDERATIONS AT LEAST COUNSEL AGAINST REFUSING
SUPPORT FOR STUDENTS ATTENDING PAROCHIAL SCHOOLS SIMPLY BECAUSE IN THAT
SETTING THEY ARE ALSO BEING INSTRUCTED IN THE TENETS OF THE FAITH THEY
ARE CONSTITUTIONALLY FREE TO PRACTICE. 

I WOULD SUSTAIN BOTH THE FEDERAL AND THE RHODE ISLAND PROGRAMS AT
ISSUE IN THESE CASES, AND I THEREFORE CONCUR IN THE JUDGMENT IN NO. 153
/1/  AND DISSENT FROM THE JUDGMENTS IN NOS. 569 AND 570.  ALTHOUGH I
WOULD ALSO REJECT THE FACIAL CHALLENGE TO THE PENNSYLVANIA STATUTE, I
CONCUR IN THE JUDGMENT IN NO. 89 FOR THE REASONS GIVEN BELOW. 

THE COURT STRIKES DOWN THE RHODE ISLAND STATUTE ON ITS FACE.  NO
FAULT IS FOUND WITH THE SECULAR PURPOSE OF THE PROGRAM; THERE IS NO
SUGGESTION THAT THE PURPOSE OF THE PROGRAM WAS AID TO RELIGION
DISGUISED IN SECULAR ATTIRE.  NOR DOES THE COURT FIND THAT THE PRIMARY
EFFECT OF THE PROGRAM IS TO AID RELIGION RATHER THAN TO IMPLEMENT
SECULAR GOALS.  THE COURT NEVERTHELESS FINDS THAT IMPERMISSIBLE
"ENTANGLEMENT" WILL RESULT FROM ADMINISTRATION OF THE PROGRAM.  THE
REASONING IS A CURIOUS AND MYSTIFYING BLEND, BUT A CRITICAL FACTOR
APPEARS TO BE AN UNWILLINGNESS TO ACCEPT THE DISTRICT COURT'S EXPRESS
FINDINGS THAT ON THE EVIDENCE BEFORE IT NONE OF THE TEACHERS HERE
INVOLVED MIXED RELIGIOUS AND SECULAR INSTRUCTION.  RATHER, THE DISTRICT
COURT STRUCK DOWN THE RHODE ISLAND STATUTE BECAUSE IT CONCLUDED THAT
ACTIVITIES OUTSIDE THE SECULAR CLASSROOM WOULD PROBABLY HAVE A
RELIGIOUS CONTENT AND THAT SUPPORT FOR RELIGIOUS EDUCATION THEREFORE
NECESSARILY RESULTED FROM THE FINANCIAL AID TO THE SECULAR PROGRAMS,
SINCE THAT AID GENERALLY STRENGTHENED THE PAROCHIAL SCHOOLS AND
INCREASED THE NUMBER OF THEIR STUDENTS. 

IN VIEW OF THE DECISION IN TILTON, HOWEVER, WHERE THESE SAME FACTORS
WERE FOUND INSUFFICIENT TO INVALIDATE THE FEDERAL PLAN, THE COURT IS
FORCED TO OTHER CONSIDERATIONS.  ACCEPTING THE DISTRICT COURT'S
OBSERVATION IN DICENSO THAT EDUCATION IS AN INTEGRAL PART OF THE
RELIGIOUS MISSION OF THE CATHOLIC CHURCH-- AN OBSERVATION THAT SHOULD
NEITHER SURPRISE NOR ALARM ANYONE, ESPECIALLY JUDGES WHO HAVE ALREADY
APPROVED SUBSTANTIAL AID TO PAROCHIAL SCHOOLS IN VARIOUS FORMS-- THE
MAJORITY THEN INTERPOSES FINDINGS AND CONCLUSIONS THAT THE DISTRICT
COURT EXPRESSLY ADJURED, NAMELY, THAT NUNS, CLERICS, AND DEDICATED
CATHOLIC LAYMEN UNAVOIDABLY POSE A GRAVE RISK IN THAT THEY MIGHT NOT BE
ABLE TO PUT ASIDE THEIR RELIGION IN THE SECULAR CLASSROOM.  ALTHOUGH
STOPPING SHORT OF CONSIDERING THEM UNTRUSTWORTHY, THE COURT CONCLUDES
THAT FOR THEM THE DIFFICULTIES OF AVOIDING TEACHING RELIGION ALONG WITH
SECULAR SUBJECTS WOULD POSE INTOLERABLE RISKS AND WOULD IN ANY EVENT
ENTAIL AN UNACCEPTABLE ENFORCEMENT REGIME.  THUS, THE POTENTIAL FOR
IMPERMISSIBLE FOSTERING OF RELIGION IN SECULAR CLASSROOMS-- AN UNTESTED
ASSUMPTION OF THE COURT-- PARADOXICALLY RENDERS UNACCEPTABLE THE
STATE'S EFFORTS AT INSURING THAT STATE'S EFFORTS AT INSURING THAT
SECULAR TEACHERS UNDER RELIGIOUS DISCIPLINE SUCCESSFULLY AVOID
CONFLICTS BETWEEN THE RELIGIOUS MISSION OF THE SCHOOL AND THE SECULAR
PURPOSE OF THE STATE'S EDUCATION PROGRAM. 

THE DIFFICULTY WITH THIS IS TWOFOLD.  IN THE FIRST PLACE, IT IS
CONTRARY TO THE EVIDENCE AND THE DISTRICT COURT'S FINDINGS IN DICENSO. 
THE COURT POINTS TO NOTHING IN THIS RECORD INDICATING THAT ANY
PARTICIPATING TEACHER HAD INSERTED RELIGION INTO HIS SECULAR TEACHING
OR HAD HAD ANY DIFFICULTY IN AVOIDING DOING SO.  THE TESTIMONY OF THE
TEACHERS WAS QUITE CONTRARY.  THE DISTRICT COURT EXPRESSLY FOUND THAT
"(THIS CONCERN FOR RELIGIOUS VALUES DOES NOT NECESSARILY AFFECT THE
CONTENT OF SECULAR SUBJECTS IN DIOCESAN SCHOOLS.  ON THE CONTRARY,
SEVERAL TEACHERS TESTIFIED AT TRIAL THAT THEY DID NOT INJECT RELIGION
INTO THEIR SECULAR CLASSES, AND ONE TEACHER DEPOSED THAT HE TAUGHT
EXACTLY AS HE HAD WHILE EMPLOYED IN A PUBLIC SCHOOL.  THIS TESTIMONY
GAINS ADDED CREDIBILITY FROM THE FACT THAT SEVERAL OF THE TEACHERS WERE
NON-CATHOLICS.  MOREOVER, BECAUSE OF THE RESTRICTIONS OF RHODE ISLAND'S
TEXTBOOK LOAN LAW . . . AND THE EXPLICIT REQUIREMENT OF THE SALARY
SUPPLEMENT ACT, TEACHING MATERIALS USED BY APPLICANTS FOR AID MUST BE
APPROVED FOR USE IN THE PUBLIC SCHOOLS."  DICENSO V.ROBINSON, 316
F.SUPP.  112, 117 (RI 1970).  ELSEWHERE, THE DISTRICT COURT REITERATED
THAT THE DEFECT OF THE RHODE ISLAND STATUTE WAS "NOT THAT RELIGIOUS
DOCTRINE OVERTLY INTRUDES INTO ALL INSTRUCTION," IBID., BUT FACTORS
ASIDE FROM SECULAR COURSES PLUS THE FACT THAT GOOD SECULAR COURSES PLUS
THE FACT THAT GOOD SECULAR TEACHING WAS ITSELF ESSENTIAL FOR
IMPLEMENTING THE RELIGIOUS MISSION OF THE PAROCHIAL SCHOOL. 

SECONDLY, THE COURT ACCEPTS THE MODEL FOR THE CATHOLIC ELEMENTARY
AND SECONDARY SCHOOLS THAT WAS REJECTED FOR THE CATHOLIC UNIVERSITIES
OR COLLEGES IN THE TILTON CASE.  THERE IT WAS URGED THAT THE CATHOLIC
CONDITION OF HIGHER LEARNING WAS AN INTEGRAL PART OF THE RELIGIOUS
MISSION OF THE CHURCH AND THAT THESE INSTITUTIONS DID EVERYTHING THEY
COULD TO FOSTER THE FAITH.  THE COURT'S RESPONSE WAS THAT ON THE RECORD
BEFORE IT NONE OF THE INVOLVED INSTITUTIONS WAS SHOWN TO HAVE COMPLIED
WITH THE MODEL AND THAT IT WOULD NOT PURPORT TO PASS ON CASES NOT
BEFORE IT.  HERE, HOWEVER, THE COURT STRIKES DOWN THIS RHODE ISLAND
STATUTE BASED PRIMARILY ON ITS OWN MODEL AND ITS OWN SUPPOSITIONS AND
UNSUPPORTED VIEWS OF WHAT IS LIKELY TO HAPPEN IN RHODE ISLAND PARACHIAL
SCHOOL CLASSROOMS, ALTHOUGH ON THIS RECORD THERE IS NO INDICATION THAT
ENTANGLEMENT DIFFICULTIES WILL ACCOMPANY THE SALARY SUPPLEMENT
PROGRAM. 

THE COURT THUS CREATES AN INSOLUBLE PARADOX FOR THE STATE AND
PAROCHIAL SCHOOLS.  THE STATE CANNOT FINANCE SECULAR INSTRUCTION IF IT
PERMITS RELIGION TO BE TAUGHT IN THE SAME CLASSROOM; BUT IF IT EXACTS A
PROMISE THAT RELIGION NOT BE SO TAUGHT-- A PROMISE THE SCHOOL AND ITS
TEACHERS ARE QUITE WILLING AND ON THIS RECORD ABLE TO GIVE-- AND
ENFORCES IT, IT IS THEN ENTANGLED IN THE "NO ENTANGLEMENT" ASPECT OF
THE COURT'S ESTABLISHMENT CLAUSE JURISPRUDENCE. 

WHY THE FEDERAL PROGRAM IN THE TILTON CASE IS NOT EMBROILED IN THE
SAME DIFFICULTIES IS NEVER ADEQUATELY EXPLAINED.  SURELY THE NOTION
THAT COLLEGE STUDENTS ARE MORE MATURE AND RESISTANT TO INDOCTRINATION
IS A MAKEWEIGHT, FOR IN TILTON THERE IS CAREFUL NOTE OF THE FEDERAL
CONDITION ON FUNDING AND THE ENFORCEMENT MECHANISM AVAILABLE.  IF
RELIGIOUS TEACHING IN FEDERALLY FINANCED BUILDINGS WAS PERMITTED, THE
POWERS OF RESISTANCE OF COLLEGE STUDENTS WOULD IN NO WAY SAVE THE
FEDERAL SCHEME.  NOR CAN I IMAGINE THE BASIS FOR FINDING COLLEGE
CLERICS MORE RELIABLE IN KEEPING PROMISES THAN THEIR COUNTERPARTS IN
ELEMENTARY AND SECONDARY SCHOOLS-- PARTICULARLY THOSE IN THE RHODE
ISLAND CASE, SINCE WITHIN FIVE YEARS THE MAJORITY OF TEACHERS IN RHODE
ISLAND PAROCHIAL SCHOOLS WILL BE LAY PERSONS, MANY OF THEN NON
CATHOLIC. 

BOTH THE DISTRICT COURT AND THIS COURT IN DICENSO HAVE SEZIED ON THE
RHODE ISLAND FORMULA FOR SUPPLEMENTING TEACHERS' SALARIES SINCE IT
REQUIRES THE STATE TO VERIFY THE AMOUNT OF SCHOOL MONEY SPENT FOR
SECULAR AS DISTINGUISHED FROM RELIGIOUS PURPOSES.  ONLY TEACHERS IN
THOSE SCHOOLS HAVING PER-PUPIL EXPENDITURES FOR SECULAR SUBJECTS BELOW
THE STATE AVERAGE QUALIFY UNDER THE SYSTEM, AN ASPECT OF THE STATE
SCHEME WHICH IS SAID TO PROVOKE SERIOUS "ENTANGLEMENT."  BUT THIS IS
ALSO A SLENDER REED ON WHICH TO STRIKE DOWN THIS LAW, FOR AS THE
DISTRICT COURT FOUND, ONLY ONCE SINCE THE INCEPTION OF THE PROGRAM HAS
IT BEEN NECESSARY TO SEGREGATE EXPENDITURES IN THIS MANNER. 

THE DISTRICT COURT ALSO FOCUSED ON THE RECURRING NATURE OF PAYMENTS
BY THE STATE OF RHODE ISLAND; SALARIES MUST BE SUPPLEMENTED AND MONEY
APPROPRIATED EVERY YEARS AND HENCE THE OPPORTUNITY FOR CONTROVERSY AND
FRICTION OVER STATE AID TO RELIGIOUS SCHOOLS WILL CONSTANTLY REMAIN
BEFORE THE STATE.  THE COURT IN DICENSO ADOPTS THIS THEME, AND MAKES
MUCH OF THE FACT THAT UNDER THE FEDERAL SCHEME THE GRANT TO A RELIGIOUS
INSTITUTION IS A ONE-TIME MATTER.  BUT THIS ARGUMENT IS WITHOUT REAL
FORCE.  IT IS APPARENT THAT FEDERAL INTEREST IN ANY GRANT WILL BE A
CONTINUING ONCE SINCE THE CONDITIONS ATTACHED TO THE GRANT MUST BE
ENFORCED.  MORE IMPORTANT, THE FEDERAL GRANT PROGRAM IS AN ONGOING
ONE.  THE SAME GRANT WILL NOT BE REPEATED, BUT NEW ONES TO THE SAME OR
DIFFERENT SCHOOLS WILL BE MADE YEAR AFTER YEAR.  THUS THE SAME
POTENTIAL FOR RECURRRING POLITICAL CONTROVERSY ACCOMPANIES THE FEDERAL
PROGRAM.  RHODE ISLAND MAY HAVE THE PROBLEM OF APPROPRIATING MONEY EACH
YEAR TO SUPPLEMENT THE SALARIES OF TEACHERS, BUT THE UNITED STATES MUST
EACH YEAR SEEK FINANCING FOR THE NEW GRANTS IT DESIRES TO MAKE AND MUST
SUPERVISE THE ONES ALREADY ON THE RECORD. 

WITH RESPECT TO PENNSYLVANIA, THE COURT ACCEPTING AS TRUE THE
FACTUAL ALLEGATIONS OF THE COMPLAINT, AS IT MUST FOR PURPOSES OF A
MOTION TO DISMISS, WOULD REVERSE THE DISMISSAL OF THE COMPLAINT AND
INVALIDATE THE LEGISLATION.  THE CRITICAL ALLEGATIONS, AS PARAPHRASED
BY THE COURT, ARE THAT "THE CHURCH-RELATED ELEMENTARY AND SECONDARY
SCHOOLS ARE CONTROLLED BY RELIGIOUS ORGANIZATIONS, HAVE THE PURPOSE OF
PROPAGATING AND PROMOTING A PARTICULAR RELIGIOUS FAITH, AND CONDUCT
THEIR OPERATIONS TO FULFILL THAT PURPOSE."  ANTE, AT 620.  FROM THESE
ALLEGATIONS THE COURT CONCLUDES THAT FORBIDDEN ENTANGLEMENTS WOULD
FOLLOW FROM ENFORCING COMPLIANCE WITH THE SECULAR PURPOSE FOR WHICH THE
STATE MONEY IS BEING PAID. 

I DISAGREE.  THERE IS NO SPECIFIC ALLEGATION IN THE COMPLAINT THAT
STATE FUNDS.  THAT THE SCHOOLS ARE OPERATED TO PROMOTE A PARTICULAR
RELIGION IS QUITE CONSISTENT WITH THE VIEW THAT SECULAR TEACHING DEVOID
OF RELIGIOUS INSTRUCTION CAN SUCCESSFULLY BE MAINTAINED, FOR GOOD
SECULAR INSTRUCTION IS, AS JUDGE COFFIN WROTE FOR THE DISTRICT COURT IN
THE RHODE ISLAND CASE, ESSENTIAL TO THE SUCCESS OF THE RELIGIOUS
MISSION OF THE PAROCHIAL SCHOOL.  I WOULD NO MORE HERE THAN IN THE
RHODE ISLAND CASE SUBSTITUTE PRESUMPTION FOR PROOF THAT RELIGION IS OR
WOULD BE TAUGHT IN STATE-FINANCED SECULAR COURSES OR ASSUME THAT
ENFORCEMENT MEASURES WOULD BE SO EXTENSIVE AS TO BORDER ON A FREE
EXERCISE VIOLATION.  WE SHOULD NOT FORGET THAT THE PENNSYLVANIA STATUTE
DOES NOT COMPEL CHURCH SCHOOLS TO ACCEPT STATE FUNDS.  I CANNOT HOLD
THAT THE FIRST AMENDMENT FORBIDS AN AGREEMENT BETWEEN THE SCHOOL AND
THE STATE THAT THE STATE FUNDS WOULD BE USED ONLY TO TEACH SECULAR
SUBJECTS. 

I DO AGREE, HOWEVER, THAT THE COMPLAINT SHOULD NOT HAVE BEEN
DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION.  ALTHOUGH IT DID NOT
SPECIFICALLY ALLEGE THAT THE SCHOOLS INVOLVED MIXED RELIGIOUS TEACHING
WITH SECULAR SUBJECTS, THE COMPLAINT DID ALLEGE THAT THE SCHOOLS WERE
OPERATED TO FULFILL RELIGIOUS PURPOSES AND ONE OF THE LEGAL THEORIES
STATED IN THE COMPLAINT WAS THAT THE PENNSYLVANIA ACT "FINANCES AND
PARTICIPATES IN THE BLENDING OF SECTARIAN AND SECULAR INSTRUCTION."  AT
TRIAL UNDER THIS COMPLAINT, EVIDENCE SHOWING SUCH A BLEND IN A COURSE
SUPPORTED BY STATE FUNDS WOULD APPEAR TO BE ADMISSIBLE AND, IF
CREDITED, WOULD ESTABLISH FINANCING OF RELIGIOUS INSTRUCTION BY THE
STATE.  HENCE, I WOULD REVERSE THE JUDGMENT OF THE DISTRICT COURT AND
REMAND THE CASE FOR TRIAL, THEREBY HOLDING THE PENNSYLVANIA LEGISLATION
VALID ON ITS FACE BUT LEAVING OPEN THE QUESTION OF ITS VALIDITY AS
APPLIED TO THE PARTICULAR FACTS OF THIS CASE. 

I FIND IT VERY DIFFICULT TO FOLLOW THE DISTINCTION BETWEEN THE
FEDERAL AND STATE PROGRAMS IN TERMS OF THEIR FIRST AMENDMENT
ACCEPTABILITY.  MY DIFFICULTY IS NOT SURPRISING, SINCE THERE IS FRANK
ACKNOWLEDGEMENT THAT "WE CAN ONLY DIMLY PERCEIVE THE BOUNDARIES OF
PERMISSIBLE GOVERNMENT ACTIVITY IN THIS SENSITIVE AREA OF
CONSTITUTIONAL ADJUDICATION," TILTON V. RICHARDSON, POST, AT 678, AND
THAT "(JUDICIAL CAVEATS AGAINST ENTANGLEMENT" ARE A "BLURRED,
INDISTINCT AND VARIABLE BARRIER."  ANTE, AT 614.  I FIND IT EVEN MORE
DIFFICULT, WITH THESE ACKNOWLEDGMENTS IN MIND, TO UNDERSTAND HOW THE
COURT CAN ACCEPT THE CONSIDERED JUDGMENT OF CONGRESS THAT ITS PROGRAM
IS CONSTITUTIONAL AND YET REJECT THE EQUALLY CONSIDERED DECISIONS OF
THE RHODE ISLAND AND PENNSYLVANIA LEGISLATURES THAT THEIR PROGRAMS
REPRESENT A CONSTITUTIONALLY ACCEPTABLE ACCOMMODATION BETWEEN CHURCH
AND STATE.  /2/     /1/  I ACCEPT THE COURT'S INVALIDATION OF THE
PROVISION IN THE FEDERAL LEGISLATION WHEREBY THE RESTRICTION ON THE USE
OF BUILDINGS CONSTRUCTED WITH FEDERAL FUNDS TERMINATES AFTER 20 YEARS. 

/2/  AS A POSTSCRIPT I SHOULD NOTE THAT BOTH THE FEDERAL AND STATE
CASES ARE DECIDED ON SPECIFIED ESTABLISHMENT CLAUSE CONSIDERATIONS,
WITHOUT REACHING THE QUESTIONS THAT WOULD BE PRESENTED IF THE EVIDENCE
IN ANY OF THESE CASES SHOWED THAT ANY OF THE INVOLVED SCHOOLS
RESTRICTED ENTRY ON RACIAL OR RELIGIOUS GROUNDS OR REQUIRED ALL
STUDENTS GAINING ADMISSION TO RECEIVE INSTRUCTION IN THE TENETS OF A
PARTICULAR FAITH.  FOR MYSELF, IF SUCH PROOF WERE MADE, THE LEGISLATION
WOULD TO THAT EXTENT BE UNCONSTITUTIONAL. 

HENRY W. SAWYER III ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANTS
IN NO. 89.  EDWARD BENNETT WILLIAMS ARGUED THE CAUSE FOR APPELLANTS IN
NO. 569.  WITH HIM ON THE BRIEF WERE JEREMIAH C. COLLINS AND RICHARD P.
MCMAHON.  CHARLES F. COTTAM ARGUED THE CAUSE FOR APPELLANTS IN NO.
570.  WITH HIM ON THE BRIEF WERE HERBERT F. DESIMONE, ATTORNEY GENERAL
OF RHODE ISLAND, AND W. SLATER ALLEN, JR., ASSISTANT ATTORNEY GENERAL. 

J. SHANE CREAMER ARGUED THE CAUSE FOR APPELLEES KURTZMAN ET AL. IN
NO. 89.  ON THE BRIEF WERE FRED SPEAKER, ATTORNEY GENERAL OF
PENNSYLVANIA, DAVID W. RUTSTEIN, DEPUTY ATTORNEY GENERAL, AND EDWARD
FREIDMAN.  WILLIAM B. BALL ARGUED THE CAUSE FOR APPELLEE SCHOOLS IN NO.
89.  WITH HIM ON THE BRIEF WERE JOSEPH G. SKELLY, JAMES E. GALLAGHER,
JR., C. CLARK HODGSON, JR., SAMUEL RAPPAPORT, DAONALD A. SEMISCH, AND
WILLIAM D. VALENTE.  HENRY T. REATH FILED A BRIEF FOR APPELLEE
PENNSYLVANIA ASSOCIATION OF INDEPENDENT SCHOOLS IN NO. 89.  LEO PFEFFER
AND MILTON STANZLER ARUGED THE CAUSE FOR APPELLEES IN NOS. 569 AND
570.  WITH THEM ON THE BRIEF WERE HAROLD E. ADAMS, JR., AND ALLEN M.
SHINE. 

BRIEFS OF AMICI CURIAE URGING REVERSAL IN NO. 89 WERE FILED BY MR.
PFEFFER FOR THE AMERICAN ASSOCATION OF SCHOOL ADMINISTRATORS ET AL.; BY
HENRY C. CLAUSEN FOR UNITED AMERICANS FOR PUBLIC SCHOOLS; BY SAMUEL
RABINOVE, ARNOLD FORSTER, GEORGE SOLL, JOSEPH B. ROBISON, PAUL HARTMAN,
AND SOL RABKIN FOR THE AMERICAN JEWISH COMMITTEE AL AL.; BY FRANKLIN C.
SALISBURY FOR PROTESTANTS AND OTHER AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE; BY J. HAROLD FLANNERY FOR THE CENTER FOR LAW AND
EDUCATION, HARVARD UNIVERSITY, ET AL.; AND BY PETER L. COSTAS AND PAUL
W. ORTH FOR THE CONNECTICUT STATE CONFERENCE OF BRANCHES OF THE NAACP
ET AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN NO. 89 WERE FILED BY
ACTING SOLICITOR GENERAL FRIEDMAN, ASSISTANT ATTORNEY GENERAL
RUCKELSHAUS, ROBERT V. ZENER, AND DONALD L. HOROWITZ FOR THE UNITED
STATES; BY PAUL W. BROWN, ATTORNEY GENERAL OF OHIO, PRO SE, AND CHARLES
S. LOPEMAN, FIRST ASSISTANT ATTORNEY GENERAL, FOR THE ATTORNEY GENERAL
OF OHIO ET AL.; BY LEVY ANDERSON FOR THE CITY OF PHILADELPHIA; BY THE
CITY OF PITTSBURGH; BY BRUCE W. KAUFFMAN, JOHN M. ELLIOTT, AND EDWARD
F. MANNINO FOR THE CITY OF ERIE; BY JAMES A. KELLY FOR THE SCHOOL
DISTRICT OF THE CITY OF SCRANTON; BY CHARLES M. WHELAN, WILLIAM R.
CONSEDINE, ALFRED L. SCANLAN, ARTHUR E. SUTHERLAND, AND HARMON BURNS,
JR., FOR THE NATIONAL CATHOLIC EDUCATIONAL ASSOCIATION ET AL.; BY ETHAN
A. HITCHCOCK AND I. N. P. STOKES FOR THE NATIONAL ASSOCIATION OF
INDEPENDENT SCHOOLS, INC.; BY JEROME H. GERBER FOR THE PENNSYLVANIA
STATE AFL-CIO; BY THOMAS J. FORD, EDWARD J. WALSH, JR., AND THEODORE D.
HOFFMAN FOR THE LONG ISLAND CONFERENCE OF RELIGIOUS ELEMENTARY AND
SECONDARY SCHOOL ADMINISTRATORS; BY NATHAN LEWIN FOR THE NATIONAL
JEWISH COMMISSION ON LAW AND PUBLIC AFFAIRS; BY STUART HUBBELL FOR
CITIZENS FOR EDUCATIONAL FREEDOM; AND BY EDWARD M. KOZA, WALTER L.
HILL, JR., THOMAS R. BALABAN, AND WILLIAM J. PINKOWSKI FOR THE POLISH
AMERICAN CONGRESS, INC., ET AL. 

THE NATIONAL ASSOCIATION OF LAYMEN FILED A BRIEF AS AMICUS CURIAE IN
NO. 89. 

BRIEFS OF AMICI CURIAE URGING REVERSAL IN NOS. 569 AND 570 WERE
FILED BY ACTING SOLICITOR GENERAL FRIEDMAN, ASSISTANT ATTORNEY GENERAL
GRAY, AND MESSRS.  ZENER AND HOROWITZ FOR THE UNITED STATES, AND BY
JESSE H. CHOPER AND MESSRS.  CONSEDINE, WHELAN, AND BURNS FOR THE
NATIONAL CATHOLIC EDUCATIONAL ASSOCIATION ET AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN NOS. 569 AND 570 WERE
FILED BY MESSRS.  RABINOVE, ROBISON, FORSTER, AND RABKIN FOR THE
AMERICAN JEWISH COMMITTEE ET AL.; BY MR. SALISBURY FOR PROTESTANTS AND
OTHER AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; BY MR.
FLANNERY FOR THE CENTER FOR LAW AND EDUCATION, HARVARD UNIVERSITY, ET
AL.; AND BY MESSRS.  COSTAS AND ORTH FOR THE CONNECTICUT STATE
CONFERENCE OF BRANCHES OF THE NAACP ET AL.
..END :
























TILTON V. RICHARDSON, 403 U.S. 672 


       TILTON ET AL. V. RICHARDSON, SECRETARY OF HEALTH, EDUCATION,

           AND WELFARE, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF CONNECTICUT

        NO. 153.  ARGUED MARCH 2-3, 1971-- DECIDED JUNE 28, 1971 


THE HIGHER EDUCATION FACILITIES ACT OF 1963 PROVIDES FEDERAL
CONSTRUCTION GRANTS FOR COLLEGE AND UNIVERSITY FACILITIES, EXCLUDING
"ANY FACILITY USED OR TO BE USED FOR SECTARIAN INSTRUCTION OR AS A
PLACE FOR RELIGIOUS WORSHIP, OR . . . PRIMARILY IN CONNECTION WITH ANY
PART OF THE PROGRAM OF A SCHOOL OR DEPARTMENT OF DIVINITY."  THE UNITED
STATES RETAINS A 20-YEAR INTEREST IN ANY FACILITIES CONSTRUCTED WITH
FUNDS UNDER THE ACT, AND IF, DURING THIS PERIOD, THE RECIPIENT VIOLATES
THE STATUTORY CONDITIONS, THE GOVERNMENT IS ENTITLED TO RECOVERY OF
FUNDS.  FOUR CHURCH-RELATED COLLEGES AND UNIVERSITIES IN CONNECTICUT
RECEIVED FEDERAL CONSTRUCTION GRANTS FOR FIVE FACILITIES.  APPELLANTS
ATTEMPTED TO SHOW, IN A THREE-JUDGE COURT, THAT THE RECIPIENT
INSTITUTIONS WERE "SECTARIAN" BY INTRODUCING EVIDENCE OF THEIR
RELATIONS WITH RELIGIOUS AUTHORITIES, THE CURRICULA CONTENT, AND OTHER
INDICIA OF RELIGIOUS CHARACTER.  APPELLEE COLLEGES INTRODUCED TESTIMONY
THAT THEY HAD FULLY COMPLIED WITH THE STATUTORY CONDITIONS AND THAT
THEIR RELIGIOUS AFFILIATIONS DID NOT INTERFERE WITH THEIR SECULAR
EDUCATIONAL FUNCTIONS.  THE COURT HELD THAT THE ACT AUTHORIZED GRANTS
TO CHURCH-RELATED SCHOOLS AND SUSTAINED ITS CONSTITUTIONALITY, FINDING
THAT THE ACT HAD NEITHER THE PURPOSE NOR THE EFFECT OF PROMOTING
RELIGION.  HELD:  THE ACT IS CONSTITUTIONAL EXCEPT FOR THAT PORTION
PROVIDING FOR A 20-YEAR LIMITATION ON THE RELIGIOUS USE OF THE
FACILITIES CONSTRUCTED WITH FEDERAL FUNDS.  PP. 676-689, 661-671, 692. 

312 F.SUPP.  1191, VACATED AND REMANDED. 

THE CHIEF JUSTICE, JOINED BY MR. JUSTICE HARLAN, MR. JUSTICE
STEWART, AND MR. JUSTICE BLACKMUN, CONCLUDED THAT: 

1.  THE ACT INCLUDES COLLEGES AND UNIVERSITIES WITH RELIGIOUS
AFFILIATIONS.  PP. 676-677. 

2.  CONGRESS' OBJECTIVE OF PROVIDING MORE OPPORTUNITY FOR COLLEGE
EDUCATION IS A LEGITIMATE SECULAR GOAL ENTIRELY APPROPRIATE FOR
GOVERNMENTAL ACTION.  PP. 678-679. 

3.  THE RECORD FULLY SUPPORTS THE DISTRICT COURT'S FINDINGS THAT THE
COLLEGES INVOLVED HAVE NOT VIOLATED THE STATUTORY RESTRICTIONS; IT
PROVIDES NO BASIS FOR ASSUMING THAT RELIGIOSITY NECESSARILY PERMEATES
THE SECULAR EDUCATION OF THE COLLEGES; AND IT YIELDS NO EVIDENCE THAT
RELIGION SEEPS INTO THE USE OF ANY OF THE FIVE FACILITIES.  PP. 680
682. 

4.  THE LIMITATION OF FEDERAL INTEREST IN THE FACILITIES TO A PERIOD
OF 20 YEARS VIOLATES THE RELIGION CLAUSES OF THE FIRST AMENDMENT, AS
THE UNRESTRICTED USE OF VALUABLE PROPERTY AFTER 20 YEARS IS IN EFFECT A
CONTRIBUTION TO A RELIGIOUS BODY.  PP. 682-684. 

5.  THIS CASE IS DISTINGUISHED FROM LEMON V. KURTZMAN, ANTE, P. 602;
(A) THERE IS LESS DANGER HERE THAN IN CHURCH-RELATED PRIMARY AND
SECONDARY SCHOOLS DEALING WITH IMPRESSIONABLE CHILDREN THAT RELIGION
WILL PERMEATE THE AREA OF SECULAR EDUCATION, SINCE RELIGIOUS
INDOCTRINATION IS NOT A SUBSTANTIAL PURPOSE OR ACTIVITY OF THESE CHURCH
RELATED COLLEGES, (B) THE FACILIITES PROVIDED HERE ARE THEMSELVES
RELIGIOUSLY NEUTRAL, WITH CORRESPONDINGLY LESS NEED FOR GOVERNMENT
SURVEILLANCE, AND (C) THE GOVERNMENT AID HERE IS A ONE-TIME, SINGLE
PURPOSE CONSTRUCTION GRANT, WITH ONLY MINIMAL NEED FOR INSPECTION. 
CUMULATIVELY, THESE FACTORS LESSEN SUBSTANTIALLY THE POTENTIAL FOR
DIVISIVE RELIGIOUS FRAGMENTATION IN THE POLITICAL ARENA.  PP. 684-689. 

6.  THE IMPLEMENTATION OF THE ACT DOES NOT INHIBIT THE FREE EXERCISE
OF RELIGION IN VIOLATION OF THE FIRST AMENDMENT.  P. 689. 

MR. JUSTICE WHITE CONCURRED IN THE JUDGMENT IN THIS CASE.  PP. 661
671. 

MR. JUSTICE DOUGLAS, JOINED BY MR. JUSTICE BLACK AND MR. JUSTICE
MARSHALL, AGREED ONLY WITH THAT PART OF THE PLURALITY OPINION RELATING
TO THE LIMITATION OF FEDERAL INTEREST IN THE FACILIITES TO 20 YEARS,
CONCLUDING THAT A REVERSION OF A FACILITY AT THE END OF THAT PERIOD TO
A PAROCHIAL SCHOOL WOULD BE UNCONSTITUTIONAL AS A GIFT OF TAXPAYERS'
FUNDS.  P. 692. 

BURGER, C.J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION IN WHICH HARLAN, STEWART, AND BLACKMUN, JJ., JOINED.  WHITE,
J., FILED AN OPINION CONCURRING IN THE JUDGMENT, ANTE, P. 661. 
DOUGLAS, J., FILED AN OPINION DISSENTING IN PART, IN WHICH BLACK AND
MARSHALL, JJ., JOINED, POST, P. 689.  BRENNAN, J., FILED A DISSENTING
OPINION, ANTE, P. 642. 

MR. CHIEF JUSTICE BURGER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE HARLAN, MR. JUSTICE STEWART, AND MR.
JUSTICE BLACKMUN JOIN. 

THIS APPEAL PRESENTS IMPORTANT CONSTITUTIONAL QUESTIONS AS TO
FEDERAL AID FOR CHURCH RELATED COLLEGES AND UNIVERSITIES UNDER TITLE I
OF THE HIGHER EDUCATION FACILITIES ACT OF 1963, 77 STAT. 364, AS
AMENDED, 20 U.S.C. 711-721 (1964 ED. AND SUPP. V), WHICH PROVIDES
CONSTRUCTION GRANTS FOR BUILDINGS AND FACILITIES USED EXCLUSIVELY FOR
SECULAR EDUCATIONAL PURPOSES.  WE MUST DETERMINE FIRST WHETHER THE ACT
AUTHORIZES AID TO SUCH CHURCH-RELATED INSTITUTIONS, AND, IF SO, WHETHER
THE ACT VIOLATES EITHER THE ESTABLISHMENT OR FREE EXERCISE CLAUSES OF
THE FIRST AMENDMENT. 

        I 

THE HIGHER EDUCATION FACILITIES ACT WAS PASSED IN 1963 IN RESPONSE
TO A STRONG NATIONWIDE DEMAND FOR THE EXPANSION OF COLLEGE AND
UNIVERSITY FACILITIES TO MEET THE SHARPLY RISING NUMBER OF YOUNG PEOPLE
DEMANDING HIGHER EDUCATION.  THE ACT AUTHORIZES FEDERAL GRANTS AND
LOANS TO "INSTITUTIONS OF HIGHER EDUCATION: FOR THE CONSTRUCTION OF A
WIDE VARIETY OF "ACADEMIC FACILITIES."  BUT SEC. 751(A)(2) (1964 ED.,
SUPP. V) EXPRESSLY EXCLUDES 

"ANY FACILITY USED OR TO BE USED FOR SECTARIAN INSTRUCTION OR AS A
PLACE FOR RELIGIOUS WORSHIP, OR . . . ANY FACILITY WHICH . . . IS USED
OR TO BE USED PRIMARILY IN CONNECTION WITH ANY PART OF THE PROGRAM OF A
SCHOOL OR DEPARTMENT OF DIVINITY . . . " 

THE ACT IS ADMINISTERED BY THE UNITED STATES COMMISSIONER OF
EDUCATION.  HE ADVISES COLLEGES AND UNIVERSITIES APPLYING FOR FUNDS
THAT UNDER THE ACT NO PART OF THE PROJECT MAY BE USED FOR SECTARIAN
INSTRUCTION, RELIGIOUS WORSHIP, OR THE PROGRAMS OF A DIVINITY SCHOOL. 
THE COMMISSIONER REQUIRES APPLICANTS TO PROVIDE ASSURANCES THAT THESE
RESTRICTIONS WILL BE RESPECTED.  THE UNITED STATES RETAINS A 20-YEAR
INTEREST IN ANY FACILITY CONSTRUCTED WITH TITLE I FUNDS.  IF, DURING
THIS PERIOD, THE RECIPIENT VIOLATES THE STATUTORY CONDITIONS, THE
UNITED STATES IS ENTITLED TO RECOVER AN AMOUNT EQUAL TO THE PROPORTION
OF ITS PRESENT VALUE THAT THE FEDERAL GRANT BORE TO THE ORIGINAL COST
OF THE FACILITY.  DURING THE 20-YEAR PERIOD, THE STATUTORY RESTRICTIONS
ARE ENFORCED BY THE OFFICE OF EDUCATION PRIMARILY BY WAY OF ON-SITE
INSPECTIONS. 

APPELLANTS ARE CITIZENS AND TAXPAYERS OF THE UNITED STATES AND
RESIDENTS OF CONNECTICUT.  THEY BROUGHT THIS SUIT FOR INJUNCTIVE RELIEF
AGAINST THE OFFICIALS WHO ADMINISTER THE ACT.  FOUR CHURCH-RELATED
COLLEGES AND UNIVERSITIES IN CONNECTICUT RECEIVING FEDERAL CONSTRUCTION
GRANTS UNDER TITLE I WERE ALSO NAMED AS DEFENDANTS.  FEDERAL FUNDS WERE
USED FOR FIVE PROJECTS AT THESE FOUR INSTITUTIONS:  (1) A LIBRARY
BUILDING AT SACRED HEART UNIVERSITY; (2) A MUSIC, DRAMA, AND ARTS
BUILDING AT ANNHURST COLLEGE; (3) A SCIENCE BUILDING AT FAIRFIELD
UNIVERSITY; (4) A LIBRARY BUILDING AT FAIRFIELD; AND (5) A LANGUAGE
LABORATORY AT ALBERTUS MAGNUS COLLEGE. 

A THREE-JUDGE FEDERAL COURT WAS CONVENED UNDER 28 U.S.C. 2282 AND
2284.  APPELLANTS ATTEMPTED TO SHOW THAT THE FOUR RECIPIENT
INSTITUTIONS WERE "SECTARIAN" BY INTRODUCING EVIDENCE OF THEIR
RELATIONS WITH RELIGIOUS AUTHORITIES, THE CONTENT OF THEIR CURRICULA,
AND OTHER INDICIA OF THEIR RELIGIOUS CHARACTER.  THE SPONSORSHIP OF
THESE INSTITUTIONS BY RELIGIOUS ORGANIZATIONS IS NOT DISPUTED. 
APPELLEE COLLEGES INTRODUCED TESTIMONY THAT THEY HAD FULLY COMPLIED
WITH THE STATUTORY CONDITIONS AND THAT THEIR RELIGIOUS AFFILIATION IN
NO WAY INTERFERED WITH THE PERFORMANCE OF THEIR SECULAR EDUCATIONAL
FUNCTIONS.  THE DISTRICT COURT RULED THAT TITLE I AUTHORIZED GRANTS TO
CHURCH-RELATED COLLEGES AND UNIVERSITIES.  IT ALSO SUSTAINED THE
CONSTITUTIONALITY OF THE ACT, FINDING THAT IT HAD NEITHER THE PURPOSE
NOR THE EFFECT OF PROMOTING RELIGION.  312 F.SUPP.  1191.  WE NOTED
PROBABLE JURISDICTION.  399 U.S. 904 (1970). 

        II 

WE ARE SATISFIED THAT CONGRESS INTENDED THE ACT TO INCLUDE ALL
COLLEGES AND UNIVERSITIES REGARDLESS OF ANY AFFILIATION WITH OR
SPONSORSHIP BY A RELIGIOUS BODY.  CONGRESS DEFINED "INSTITUTIONS OF
HIGHER EDUCATION," WHICH ARE ELIGIBLE TO RECEIVE AID UNDER THE ACT, IN
BROAD AND INCLUSIVE TERMS.  CERTAIN INSTITUTIONS, FOR EXAMPLE,
INSTITUTIONS THAT ARE NEITHER PUBLIC NOR NONPROFIT, ARE EXPRESSLY
EXCLUDED, AND THE ACT EXPRESSLY PROHIBITS USE OF THE FACILITIES FOR
RELIGIOUS PURPOSES.  BUT THE ACT MAKES NO REFERENCE TO RELIGIOUS
AFFILIATION OR NONAFFILIATION.  UNDER THESE CIRCUMSTANCES "INSTITUTIONS
OF HIGHER EDUCATION" MUST BE TAKEN TO INCLUDE CHURCH-RELATED COLLEGES
AND UNIVERSITIES. 

THIS INTERPRETATION IS FULLY SUPPORTED BY THE LEGISLATIVE HISTORY. 
ALTHOUGH THERE WAS EXTENSIVE DEBATE ON THE WISDOM AND CONSTITUTIONALITY
OF AID TO INSTITUTIONS AFFILIATED WITH RELIGIOUS ORGANIZATIONS,
CONGRESS CLEARLY INCLUDED THEM IN THE PROGRAM.  THE SPONSORS OF THE ACT
SO STATED, 109 CONG. REC. 19218 (1963) (REMARKS OF SEN. MORSE); ID., AT
14954 (REMARKS OF REP. POWELL); ID., AT 14963 (REMARKS OF REP. QUIE),
AND AMENDMENTS AIMED AT THE EXCLUSION OF CHURCH-RELATED INSTITUTIONS
WERE DEFEATED.  ID., AT 14990-14992, 19496. 

        III 

NUMEROUS CASES CONSIDERED BY THE COURT HAVE NOTED THE INTERNAL
TENSION IN THE FIRST AMENDMENT BETWEEN THE ESTABLISHMENT CLAUSE AND THE
FREE EXERCISE CLAUSE.  WALZ V. TAX COMM'N, 397 U.S. 664 (1970), IS THE
MOST RECENT DECISION SEEKING TO DEFINE THE BOUNDARIES OF THE NEUTRAL
AREA BETWEEN THESE TWO PROVISIONS WITHIN WHICH THE LEGISLATURE MAY
LEGITIMATELY ACT.  THERE, AS IN OTHER DECISIONS, THE COURT TREATED THE
THREE MAIN CONCERNS AGAINST WHICH THE ESTABLISHMENT CLAUSE SOUGHT TO
PROTECT:  "SPONSORSHIP, FINANCIAL SUPPORT, AND ACTIVE INVOLVEMENT OF
THE SOVEREIGN IN RELIGIOUS ACTIVITY."  ID., AT 668. 

EVERY ANALYSIS MUST BEGIN WITH THE CANDID ACKNOWLEDGMENT THAT THERE
IS NO SINGLE CONSTITUTIONAL CALIPER THAT CAN BE USED TO MEASURE THE
PRECISE DEGREE TO WHICH THESE THREE FACTORS ARE PRESENT OR ABSENT. 
INSTEAD, OUR ANALYSIS IN THIS AREA MUST BEGIN WITH A CONSIDERATION OF
THE CUMULATIVE CRITERIA DEVELOPED OVER MANY YEARS AND APPLYING TO A
WIDE RANGE OF GOVERNMENTAL ACTION CHALLENGED AS VIOLATIVE OF THE
ESTABLISHMENT CLAUSE. 

THERE ARE ALWAYS RISKS IN TREATING CRITERIA DISCUSSED BY THE COURT
FROM TIME TO TIME AS "TESTS" IN ANY LIMITING SENSE OF THAT TERM. 
CONSTITUTIONAL ADJUDICATION DOES NOT LEND ITSELF TO THE ABSOLUTES OF
THE PHYSICAL SCIENCES OR MATHEMATICS.  THE STANDARDS SHOULD RATHER BE
VIEWED AS GUIDELINES WITH WHICH TO IDENTIFY INSTANCES IN WHICH THE
OBJECTIVES OF THE RELIGION CLAUSES HAVE BEEN IMPAIRED.  AND, AS WE HAVE
NOTED IN LEMON V. KURTZMAN AND EARLEY V. DICENSO, ANTE, AT 612, CANDOR
COMPELS THE ACKNOWLEDGMENT THAT WE CAN ONLY DIMLY PERCEIVE THE
BOUNDARIES OF PERMISSIBLE GOVERNMENT ACTIVITY IN THIS SENSITIVE AREA OF
CONSTITUTIONAL ADJUDICATION. 

AGAINST THIS BACKGROUND WE CONSIDER FOUR QUESTIONS:  FIRST, DOES THE
ACT REFLECT A SECULAR LEGISLATIVE PURPOSE?  SECOND, IS THE PRIMARY
EFFECT OF THE ACT TO ADVANCE OR INHIBIT RELIGION?  THIRD, DOES THE
ADMINISTRATION OF THE ACT FOSTER AN EXCESSIVE GOVERNMENT ENTANGLEMENT
WITH RELIGION?  FOURTH, DOES THE IMPLEMENTATION OF THE ACT INHIBIT THE
FREE EXERCISE OF RELIGION? 

        (A) 

THE STATED LEGISLATIVE PURPOSE APPEARS IN THE PREAMBLE WHERE
CONGRESS FOUND AND DECLARED THAT 

"THE SECURITY AND WELFARE OF THE UNITED STATES REQUIRE THAT THIS AND
FUTURE GENERATIONS OF AMERICAN YOUTH BE ASSURED AMPLE OPPORTUNITY FOR
THE FULLEST DEVELOPMENT OF THEIR INTELLECTUAL CAPACITIES, AND THAT THIS
OPPORTUNITY WILL BE JEOPARDIZED UNLESS THE NATION'S COLLEGES AND
UNIVERSITIES ARE ENCOURAGED AND ASSISTED IN THEIR EFFORTS TO
ACCOMMODATE RAPIDLY GROWING NUMBERS OF YOUTH WHO ASPIRE TO A HIGHER
EDUCATION."  20 U.S.C. 701. 

THIS EXPRESSES A LEGITIMATE SECULAR OBJECTIVE ENTIRELY APPROPRIATE
FOR GOVERNMENTAL ACTION. 

THE SIMPLISTIC ARGUMENT THAT EVERY FORM OF FINANCIAL AID TO CHURCH
SPONSORED ACTIVITY VIOLATES THE RELIGION CLAUSES WAS REJECTED LONG AGO
IN BRADFIELD V. ROBERTS, 175 U.S. 291 (1899).  THERE A FEDERAL
CONSTRUCTION GRANT TO A HOSPITAL OPERATED BY A RELIGIOUS ORDER WAS
UPHELD.  HERE THE ACT IS CHALLENGED ON THE GROUND THAT ITS PRIMARY
EFFECT IS TO AID THE RELIGIOUS PURPOSES OF CHURCH-RELATED COLLEGES AND
UNIVERSITIES.  CONSTRUCTION GRANTS SURELY AID THESE INSTITUTIONS IN THE
SENSE THAT THE CONSTRUCTION OF BUILDINGS WILL ASSIST THEM TO PERFORM
THEIR VARIOUS FUNCTIONS.  BUT BUS TRANSPORTATION, TEXTBOOKS, AND TAX
EXEMPTIONS ALL GAVE AID IN THE SENSE THAT RELIGIOUS BODIES WOULD
OTHERWISE HAVE BEEN FORCED TO FIND OTHER SOURCES FROM WHICH TO FINANCE
THESE SERVICES.  YET ALL OF THESE FORMS OF GOVERNMENTAL ASSISTANCE HAVE
BEEN UPHELD.  EVERSON V. BOARD OF EDUCATION, 330 U.S. 1 (1947); BOARD
OF EDUCATION V. ALLEN, 392 U.S. 236 (1968); WALZ V. TAX COMM'N, SUPRA.
SEE ALSO BRADFIELD V. ROBERTS, SUPRA.  THE CRUCIAL QUESTION IS NOT
WHETHER SOME BENEFIT ACCRUES TO A RELIGIOUS INSTITUTION AS A
CONSEQUENCE OF THE LEGISLATIVE PROGRAM, BUT WHETHER ITS PRINCIPAL OR
PRIMARY EFFECT ADVANCES RELIGION. 

A POSSIBILITY ALWAYS EXISTS, OF COURSE, THAT THE LEGITIMATE
OBJECTIVES OF ANY LAW OR LEGISLATIVE PROGRAM MAY BE SUBVERTED BY
CONSCIOUS DESIGN OR LAX ENFORCEMENT.  THERE IS NOTHING NEW IN THIS
ARGUMENT.  BUT JUDICIAL CONCERN ABOUT THESE POSSIBILITIES CANNOT,
STANDING ALONE, WARRANT STRIKING DOWN A STATUTE AS UNCONSTITUTIONAL. 

THE ACT ITSELF WAS CAREFULLY DRAFTED TO ENSURE THAT THE FEDERALLY
SUBSIDIZED FACILITIES WOULD BE DEVOTED TO THE SECULAR AND NOT THE
RELIGIOUS FUNCTION OF THE RECIPIENT INSTITUTIONS.  IT AUTHORIZES GRANTS
AND LOANS ONLY FOR ACADEMIC FACILITIES THAT WILL BE SUED FOR DEFINED
SECULAR PURPOSES AND EXPRESSLY PROHIBITS THEIR USE FOR RELIGIOUS
INSTRUCTION, TRAINING, OR WORSHIP.  THESE RESTRICTIONS HAVE BEEN
ENFORCED IN THE ACT'S ACTUAL ADMINISTRATION, AND THE RECORD SHOWS THAT
SOME CHURCH-RELATED INSTITUTIONS HAVE BEEN REQUIRED TO DISGORGE
BENEFITS FOR FAILURE TO OBEY THEM. 

FINALLY, THIS RECORD FULLY SUPPORTS THE FINDINGS OF THE DISTRICT
COURT THAT NONE OF THE FOUR CHURCH-RELATED INSTITUTIONS IN THIS CASE
HAS VIOLATED THE STATUTORY RESTRICTIONS.  THE INSTITUTIONS PRESENTED
EVIDENCE THAT THERE HAD BEEN NO RELIGIOUS SERVICES OR WORSHIP IN THE
FEDERALLY FINANCED FACILITIES, THAT THERE ARE NO RELIGIOUS SYMBOLS OR
PLAQUES IN OR ON THEM, AND THAT THEY HAD BEEN USED SOLELY FOR
NONRELIGIOUS PURPOSES.  ON THIS RECORD, THEREFORE, THESE BUILDINGS ARE
INDISTINGUISHABLE FROM A TYPICAL STATE UNIVERSITY FACILITY.  APPELLANTS
PRESENTED NO EVIDENCE TO THE CONTRARY. 

APPELLANTS INSTEAD RELY ON THE ARGUMENT THAT GOVERNMENT MAY NOT
SUBSIDIZE ANY ACTIVITIES OF AN INSTITUTION OF HIGHER LEARNING THAT IN
SOME OF ITS PROGRAMS TEACHES RELIGIOUS DOCTRINES.  THIS ARGUMENT RESTS
ON EVERSON WHERE THE MAJORITY STATED THAT THE ESTABLISHMENT CLAUSE
BARRED ANY "TAX . . . LEVIED TO SUPPORT ANY RELIGIOUS . . .
INSTITUTIONS . . . WHATEVER FORM THEY MAY ADOPT TO TEACH OR PRACTICE
RELIGION."  330 U.S.,AT 16.  IN ALLEN, HOWEVER, IT WAS RECOGNIZED THAT
THE COURT HAD FASHIONED CRITERIA UNDER WHICH AN ANALYSIS OF A STATUTE'S
PURPOSE AND EFFECT WAS DETERMINATIVE AS TO WHETHER RELIGION WAS BEING
ADVANCED BY GOVERNMENT ACTION.  392 U.S.,AT 243; ABINGTON SCHOOL
DISTRICT V. SCHEMPP, 374 U.S. 203, 222 (1963). 

UNDER THIS CONCEPT APPELLANTS' POSITION DEPENDS ON THE VALIDITY OF
THE PROPOSITION THAT RELIGION SO PERMEATES THE SECULAR EDUCATION
PROVIDED BY CHURCH-RELATED COLLEGES AND UNIVERSITIES THAT THEIR
RELIGIOUS AND SECULAR EDUCATIONAL FUNCTIONS ARE IN FACT INSEPARABLE. 
THE ARGUMENT THAT GOVERNMENT GRANTS WOULD THUS INEVITABLY ADVANCE
RELIGION DID NOT ESCAPE THE NOTICE OF CONGRESS.  IT WAS CAREFULLY AND
THOUGHTFULLY DEBATED, 109 CONG.REC.  19474-19475, BUT WAS FOUND
UNPERSUASIVE.  IT WAS ALSO CONSIDERED BY THIS COURT IN ALLEN.  THERE
THE COURT REFUSED TO ASSUME THAT RELIGIOSITY IN PAROCHIAL ELEMENTARY
AND SECONDARY SCHOOLS NECESSARILY PERMEATES THE SECULAR EDUCATION THAT
THEY PROVIDE. 

THIS RECORD, SIMILARLY, PROVIDES NO BASIS FOR ANY SUCH ASSUMPTION
HERE.  TWO OF THE FIVE FEDERALLY FINANCED BUILDINGS INVOLVED IN THIS
CASE ARE LIBRARIES.  THE DISTRICT COURT FOUND THAT NO CLASSES HAD BEEN
CONDUCTED IN EITHER OF THESE FACILITIES AND THAT NO RESTRICTIONS WERE
IMPOSED BY THE INSTITUTIONS ON THE BOOKS THAT THEY ACQUIRED.  THERE IS
NO EVIDENCE TO THE CONTRARY.  THE THIRD BUILDING WAS A LANGUAGE
LABORATORY AT ALBERTUS MAGNUS COLLEGE.  THE EVIDENCE SHOWED THAT THIS
FACILITY WAS USED SOLELY TO ASSIST STUDENTS WITH THEIR PRONUNCIATION IN
MODERN FOREIGN LANGAUGES-- A USE WHICH WOULD SEEM PECULIARLY UNRELATED
AND UNADAPTABLE TO RELIGIOUS INDOCTRINATION.  FEDERAL GRANTS WERE ALSO
USED TO BUILD A SCIENCE BUILDING AT FAIRFIELD UNIVERSITY AND A MUSIC,
DRAMA, AND ARTS BUILDING AT ANNHURST COLLEGE. 

THERE IS NO EVIDENCE THAT RELIGION SEEPS INTO THE USE OF ANY OF
THESE FACILITIES.  INDEED, THE PARTIES STIPULATED IN THE DISTRICT COURT
THAT COURSES AT THESE INSTITUTIONS ARE TAUGHT ACCORDING TO THE ACADEMIC
REQUIREMENTS INTRINSIC TO THE SUBJECT MATTER AND THE INDIVIDUAL
TEACHER'S CONCEPT OF PROFESSIONAL STANDARDS.  ALTHOUGH APPELLANTS
INTRODUCED SEVERAL INSTITUTIONAL DOCUMENTS THAT STATED CERTAIN
RELIGIOUS RESTRICTIONS WHAT WHAT COULD BE TAUGHT, OTHER EVIDENCE SHOWED
THAT THESE RESTRICTIONS WERE NOT IN FACT ENFORCED AND THAT THE SCHOOLS
WERE CHARACTERIZED BY AN ATMOSPHERE OF ACADEMIC FREEDOM RATHER THAN
RELIGIOUS INDOCTRINATION.  ALL FOUR INSTITUTIONS, FOR EXAMPLE SUBSCRIBE
TO THE 1940 STATEMENT OF PRINCIPLES ON ACADEMIC FREEDOM AND TENURE
ENDORSED BY THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS AND THE
ASSOCIATION OF AMERICAN COLLEGES.     RATHER THAN FOCUS ON THE FOUR
DEFENDANT COLLEGES AND UNIVERSITIES INVOLVED IN THIS CASE, HOWEVER,
APPELLANTS SEEK TO SHIFT OUR ATTENTION TO A "COMPOSITE PROFILE" THAT
THEY HAVE CONSTRUCTED OF THE "TYPICAL SECTARIAN" INSTITUTION OF HIGHER
EDUCATION.  WE ARE TOLD THAT SUCH A "COMPOSITE" INSTITUTION IMPOSES
RELIGIOUS RESTRICTIONS ON ADMISSIONS, REQUIRES ATTENDANCE AT RELIGIOUS
ACTIVITIES, COMPELS OBEDIENCE TO THE DOCTRINES AND DOGMAS OF THE FAITH,
REQUIRES INSTRUCTIONS IN THEOLOGY AND DOCTRINE, AND DOES EVERYTHING IT
CAN TO PROPAGATE A PARTICULAR RELIGION.  PERHAPS SOME CHURCH-RELATED
SCHOOLS FIT THE PATTERN THAT APPELLANTS DESCRIBE.  INDEED, SOME
COLLEGES HAVE BEEN DECLARED INELIGIBLE FOR AID BY THE AUTHORITIES THAT
ADMINISTER THE ACT.  BUT APPELLANTS DO NOT CONTEND THAT THESE FOUR
INSTITUTIONS FALL WITHIN THIS CATEGORY.  INDIVIDUAL PROJECTS CAN BE
PROPERLY EVALUATED IF AND WHEN CHALLENGES ARISE WITH RESPECT TO
PARTICULAR RECIPIENTS AND SOME EVIDENCE IS THEN PRESENTED TO SHOW THAT
THE INSTITUTION DOES IN FACT POSSESS THESE CHARACTERISTICS.  WE CANNOT,
HOWEVER, STRIKE DOWN AN ACT OF CONGRESS ON THE BASIS OF A HYPOTHETICAL
"PROFILE." 

        (B) 

ALTHOUGH WE REJECT APPELLANTS' BROAD CONSTITUTIONAL ARGUMENTS WE DO
PERCEIVE AN ASPECT IN WHICH THE STATUTE'S ENFORCEMENT PROVISIONS ARE
INADEQUATE TO ENSURE THAT THE IMPACT OF THE FEDERAL AID WILL NOT
ADVANCE RELIGION.  IF A RECIPIENT INSTITUTION VIOLATES ANY OF THE
STATUTORY RESTRICTIONS ON THE USE OF A FEDERALLY FINANCED FACILITY,
SEC. 754(B)(2) PERMITS THE GOVERNMENT TO RECOVER AN AMOUNT EQUAL TO THE
PROPORTION OF THE FACILITY'S PRESENT VALUE THAT THE FEDERAL GRANT BORE
TO ITS ORIGINAL COST. 

THIS REMEDY, HOWEVER, IS AVAILABLE TO THE GOVERNMENT ONLY IF THE
STATUTORY CONDITIONS ARE VIOLATED "WITHIN TWENTY YEARS AFTER COMPLETION
OF CONSTRUCTION."  THIS 20-YEAR PERIOD IS TERMED BY THE STATUTE AS "THE
PERIOD OF FEDERAL INTEREST" AND REFLECTS CONGRESS' FINDING THAT AFTER
20 YEARS "THE PUBLIC BENEFIT ACCRUING TO THE UNITED STATES" FROM THE
USE OF THE FEDERALLY FINANCED FACILITY "WILL EQUAL OR EXCEED IN VALUE"
THE AMOUNT OF THE FEDERAL GRANT.  20 U.S.C. 754(A). 

UNDER SEC. 754(B)(2), THEREFORE, A RECIPIENT INSTITUTION'S
OBLIGATION NOT TO USE THE FACILITY FOR SECTARIAN INSTRUCTION OR
RELIGIOUS WORSHIP WOULD APPEAR TO EXPIRE AT THE END OF 20 YEARS.  WE
NOTE, FOR EXAMPLE, THAT UNDER SEC. 718(B)(7)(C) (1964 ED., SUPP. V), AN
INSTITUTION APPLYING FOR A FEDERAL GRANT IS ONLY REQUIRED TO PROVIDE
ASSURANCES THAT THE FACILITY WILL NOT BE USED FOR SECTARIAN INSTRUCTION
OR RELIGIOUS WORSHIP "DURING AT LEAST THE PERIOD OF THE FEDERAL
INTEREST THEREIN (AS DEFINED IN SECTION 754 OF THIS TITLE)." 

LIMITING THE PROHIBITION FOR RELIGIOUS USE OF THE STRUCTURE TO 20
YEARS OBVIOUSLY OPENS THE FACILITY TO USE FOR ANY PURPOSE AT THE END OF
THAT PERIOD.  IT CANNOT BE ASSUMED THAT A SUBSTANTIAL STRUCTURE HAS NO
VALUE AFTER THAT PERIOD AND HENCE THE UNRESTRICTED USE OF A VALUABLE
PROPERTY IS IN EFFECT A CONTRIBUTION OF SOME VALUE TO A RELIGIOUS
BODY.  CONGRESS DID NOT BASE THE 20-YEAR PROVISION ON ANY CONTRARY
CONCLUSION.  IF, AT THE END OF 20 YEARS, THE BUILDING IS, FOR EXAMPLE,
CONVERTED INTO A CHAPEL OR OTHERWISE USED TO PROMOTE RELIGIOUS
INTERESTS, THE ORIGINAL FEDERAL GRANT WILL IN PART HAVE THE EFFECT OF
ADVANCING RELIGION. 

TO THIS EXTENT THE ACT THEREFORE TRESPASSES ON THE RELIGION
CLAUSES.  THE RESTRICTIVE OBLIGATIONS OF A RECIPIENT INSTITUTION UNDER
SEC. 751(A)(2) CANNOT, COMPATIBLY WITH THE RELIGION CLAUSES, EXPIRE
WHILE THE BUILDING HAS SUBSTANTIAL VALUE.  THIS CIRCUMSTANCE DOES NOT
REQUIRE US TO INVALIDATE THE ENTIRE ACT, HOWEVER.  "THE CARDINAL
PRINCIPLE OF STATUTORY CONSTRUCTION IS TO SAVE AND NOT TO DESTROY." 
NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 30 (1937).  IN
CHAMPLIN RFG.  CO. V.COMMISSION, 286 U.S. 210, 234 (1932), THE COURT
NOTED 

"THE UNCONSTITUTIONALITY OF A PART OF AN ACT DOES NOT NECESSARILY
DEFEAT . . . THE VALIDITY OF ITS REMAINING PROVISIONS.  UNLESS IT IS
EVIDENT THAT THE LEGISLATURE WOULD NOT HAVE ENACTED THOSE PROVISIONS
WHICH ARE WITHIN ITS POWER, INDEPENDENTLY OF THAT WHICH IS NOT, THE
INVALID PART MAY BE DROPPED IF WHAT IS LEFT IS FULLY OPERATIVE AS A
LAW." 

NOR DOES THE ABSENCE OF AN EXPRESS SEVERABILITY PROVISION IN THE ACT
DICTATE THE DEMISE OF THE ENTIRE STATUTE.  E.G., UNITED STATES V.
JACKSON, 390 U.S. 570, 585 N. 27 (1968). 

WE HAVE FOUND NOTHING IN THE STATUTE OR ITS OBJECTIVES INTIMATING
THAT CONGRESS CONSIDERED THE 20-YEAR PROVISION ESSENTIAL TO THE
STATUTORY PROGRAM AS A WHOLE.  IN VIEW OF THE BROAD AND IMPORTANT GOALS
THAT CONGRESS INTENDED THIS LEGISLATION TO SERVE, THERE IS NO BASIS FOR
ASSUMING THAT THE ACT WOULD HAVE FAILED OF PASSAGE WITHOUT THIS
PROVISION; NOR WILL ITS EXCISION IMPAIR EITHER THE OPERATION OR
ADMINISTRATION OF THE ACT IN ANY SIGNIFICANT RESPECT.  /1/

        IV 

WE NEXT TURN TO THE QUESTION OF WHETHER EXCESSIVE ENTANGLEMENTS
CHARACTERIZE THE RELATIONSHIP BETWEEN GOVERNMENT AND CHURCH UNDER THE
ACT.  WALZ V. TAX COMM'N, SUPRA, AT 674-676.  OUR DECISION TODAY IN
LEMON V. KURTZMAN AND ROBINSON V. DICENSO HAS DISCUSSED AND APPLIED
THIS INDEPENDENT MEASURE OF CONSTITUTIONALITY UNDER THE RELIGION
CLAUSES.  THERE WE CONCLUDED THAT EXCESSIVE ENTANGLEMENTS BETWEEN
GOVERNMENT AND RELIGION WERE FOSTERED BY PENNSYLVANIA AND RHODE ISLAND
STATUTORY PROGRAMS UNDER WHICH STATE AID WAS PROVIDED TO PAROCHIAL
ELEMENTARY AND SECONDARY SCHOOLS.  HERE, HOWEVER, THREE FACTORS
SUBSTANTIALLY DIMINISH THE EXTENT AND THE POTENTIAL DANGER OF THE
ENTANGLEMENT. 

IN DICENSO THE DISTRICT COURT FOUND THAT THE PAROCHIAL SCHOOLS IN
RHODE ISLAND WERE "AN INTEGRAL PART OF THE RELIGIOUS MISSION OF THE
CATHOLIC CHURCH."  THERE, THE RECORD FULLY SUPPORTED THE CONCLUSION
THAT THE INCULCATION OF RELIGIOUS VALUES WAS A SUBSTANTIAL IF NOT THE
DOMINANT PURPOSE OF THE INSTITUTIONS.  THE PENNSYLVANIA CASE WAS
DECIDED ON THE PLEADINGS, AND HENCE WE ACCEPTED AS TRUE THE ALLEGATIONS
THAT THE PAROCHIAL SCHOOLS IN THAT STATE SHARED THE SAME
CHARACTERISTICS. 

APPELLANTS' COMPLAINT HERE CONTAINS SIMILAR ALLEGATIONS.  BUT THEY
WERE DENIED BY THE ANSWERS, AND THERE WAS EXTENSIVE EVIDENCE INTRODUCED
ON THE SUBJECT.  ALTHOUGH THE DISTRICT COURT MADE NO FINDINGS WITH
RESPECT TO THE RELIGIOUS CHARACTER OF THE FOUR INSTITUTIONS OF HIGHER
LEARNING, WE ARE NOT REQUIRED TO ACCEPT THE ALLEGATIONS AS TRUE UNDER
THESE CIRCUMSTANCES, PARTICULARLY WHERE, AS HERE, APPELLANTS THEMSELVES
DO NOT CONTEND THAT THESE FOUR INSTITUTIONS ARE "SECTARIAN." 

THERE ARE GENERALLY SIGNIFICANT DIFFERENCES BETWEEN THE RELIGIOUS
ASPECTS OF CHURCH-RELATED INSTITUTIONS OF HIGHER LEARNING AND PAROCHIAL
ELEMENTARY AND SECONDARY SCHOOLS.  /2/  THE "AFFIRMATIVE IF NOT
DOMINANT POLICY" OF THE INSTRUCTION IN PRE-COLLEGE CHURCH SCHOOLS IS
"TO ASSURE FUTURE ADHERENTS TO A PARTICULAR FAITH BY HAVING CONTROL OF
THEIR TOTAL EDUCATION AT AN EARLY AGE."  WALZ V. TAX COMM'N, SUPRA, AT
671.  /3/  THERE IS SUBSTANCE TO THE CONTENTION THAT COLLEGE STUDENTS
ARE LESS IMPRESSIONABLE AND LESS SUSCEPTIBLE TO RELIGIOUS
INDOCTRINATION.  /4/  COMMON OBSERVATION WOULD SEEM TO SUPPORT THAT
VIEW, AND CONGRESS MAY WELL HAVE ENTERTAINED IT.  THE SKEPTICISM OF THE
COLLEGE STUDENT IS NOT AN INCONSIDERABLE BARRIER TO ANY ATTEMPT OR
TENDENCY TO SUBVERT THE CONGRESSIONAL OBJECTIVES AND LIMITATIONS. 
FURTHERMORE, BY THEIR VERY NATURE, COLLEGE AND POSTGRADUATE COURSES
TEND TO LIMIT THE OPPORTUNITIES FOR SECTARIAN INFLUENCE BY VIRTUE OF
THEIR OWN INTERNAL DISCIPLINES.  MANY CHURCH-RELATED COLLEGES AND
UNIVERSITIES ARE CHARACTERIZED BY A HIGH DEGREE OF ACADEMIC FREEDOM /5/
AND SEEK TO EVOKE FREE AND CRITICAL RESPONSES FROM THEIR STUDENTS. 

THE RECORD HERE WOULD NOT SUPPORT A CONCLUSION THAT ANY OF THESE
FOUR INSTITUTIONS DEPARTED FROM THIS GENERAL PATTERN.  ALL FOUR SCHOOLS
ARE GOVERNED BY CATHOLIC RELIGIOUS ORGANIZATIONS, AND THE FACULTIES AND
STUDENT BODIES AT EACH ARE PREDOMINANTLY CATHOLIC.  NEVERTHELESS, THE
EVIDENCE SHOWS THAT NON-CATHOLICS WERE ADMITTED AS STUDENTS AND GIVEN
FACULTY APPOINTMENTS.  NOT ONE OF THESE FOUR INSTITUTIONS REQUIRES ITS
STUDENTS TO ATTEND RELIGIOUS SERVICES.  ALTHOUGH ALL FOUR SCHOOLS
REQUIRE THEIR STUDENTS TO TAKE THEOLOGY COURSES, THE PARTIES STIPULATED
THAT THESE COURSES ARE TAUGHT ACCORDING TO THE ACADEMIC REQUIREMENTS OF
THE SUBJECT MATTER AND THE TEACHER'S CONCEPT OF PROFESSIONAL
STANDARDS.  THE PARTIES ALSO STIPULATED THAT THE COURSES COVERED A
RANGE OF HUMAN RELIGIOUS EXPERIENCES AND ARE NOT LIMITED TO COURSES
ABOUT THE ROMAN CATHOLIC RELIGION.  THE SCHOOLS INTRODUCED EVIDENCE
THAT THEY MADE NO ATTEMPT TO INDOCTRINATE STUDENTS OR TO PROSELYTIZE. 
INDEED, SOME OF THE REQUIRED THEOLOGY COURSES AT ALBERTUS MAGNUS AND
SACRED HEART ARE TAUGHT BY RABBIS.  FINALLY, AS WE HAVE NOTED, THESE
FOUR SCHOOLS SUBSCRIBE TO A WELL-ESTABLISHED SET OF PRINCIPLES OF
ACADEMIC FREEDOM, AND NOTHING IN THIS RECORD SHOWS THAT THESE
PRINCIPLES ARE NOT IN FACT FOLLOWED.  IN SHORT, THE EVIDENCE SHOWS
INSTITUTIONS WITH ADMITTEDLY RELIGIOUS FUNCTIONS BUT WHOSE PREDOMINANT
HIGHER EDUCATION MISSIONS IS TO PROVIDE THEIR STUDENTS WITH A SECULAR
EDUCATION. 

SINCE RELIGIOUS INDOCTRINATION IS NOT A SUBSTANTIAL PURPOSE OR
ACTIVITY OF THESE CHURCH-RELATED COLLEGES AND UNIVERSITIES, THERE IS
LESS LIKELIHOOD THAN IN PRIMARY AND SECONDARY SCHOOLS THAT RELIGION
WILL PERMEATE THE AREA OF SECULAR EDUCATION.  THIS REDUCES THE RISK
THAT GOVERNMENT AID WILL IN FACT SERVE TO SUPPORT RELIGIOUS
ACTIVITIES.  CORRESPONDINGLY, THE NECESSITY FOR INTENSIVE GOVERNMENT
SURVEILLANCE IS DIMINISHED AND THE RESULTING ENTANGLEMENTS BETWEEN
GOVERNMENT AND RELIGION LESSENED.  SUCH INSPECTION AS MAY BE NECESSARY
TO ASCERTAIN THAT THE FACILITIES ARE DEVOTED TO SECULAR EDUCATION IS
MINIMAL AND INDEED HARDLY MORE THAN THE INSPECTIONS THAT STATES IMPOSE
OVER ALL PRIVATE SCHOOLS WITHIN THE REACH OF COMPULSORY EDUCATION
LAWS. 

THE ENTANGLEMENT BETWEEN CHURCH AND STATE IS ALSO LESSENED HERE BY
THE NONIDEOLOGICAL CHARACTER OF THE AID THAT THE GOVERNMENT PROVIDES. 
OUR CASES FROM EVERSON TO ALLEN HAVE PERMITTED CHURCH-RELATED SCHOOLS
TO RECEIVE GOVERNMENT AID IN THE FORM OF SECULAR, NEUTRAL, OR NON
IDEOLOGICAL SERVICES, FACILITIES, OR MATERIALS THAT ARE SUPPLIED TO ALL
STUDENTS REGARDLESS OF THE AFFILIATION OF THE SCHOOL THAT THEY ATTEND. 
IN LEMON AND DICENSO, HOWEVER, THE STATE PROGRAMS SUBSIDIZED TEACHERS,
EITHER DIRECTLY OR INDIRECTLY.  SINCE TEACHERS ARE NOT NECESSARILY
RELIGIOUSLY NEUTRAL, GREATER GOVERNMENTAL SURVEILLANCE WOULD BE
REQUIRED TO GUARANTEE THAT THE STATE SALARY AID WOULD NOT IN FACT
SUBSIDIZE RELIGIOUS INSTRUCTION.  THERE WE FOUND THE RESULTING
ENTANGLEMENT EXCESSIVE.  HERE, ON THE OTHER HAND, THE GOVERNMENT
PROVIDES FACILITIES THAT ARE THEMSELVES RELIGIOUSLY NEUTRAL.  THE RISKS
OF GOVERNMENT AID TO RELIGION AND THE CORRESPONDING NEED FOR
SURVEILLANCE ARE THEREFORE REDUCED. 

FINALLY, GOVERNMENT ENTANGLEMENTS WITH RELIGION ARE REDUCED BY THE
CIRCUMSTANCE THAT, UNLIKE THE DIRECT AND CONTINUING PAYMENTS UNDER THE
PENNSYLVANIA PROGRAM, AND ALL THE INCIDENTS OF REGULATION AND
SURVEILLANCE, THE GOVERNMENT AID HERE IS A ONE-TIME, SINGLE-PURPOSE
CONSTRUCTION GRANT.  THERE ARE NO CONTINUING FINANCIAL RELATIONSHIPS OR
DEPENDENCIES, NO ANNUAL AUDITS, AND NO GOVERNMENT ANALYSIS OF AN
INSTITUTION'S EXPENDITURES ON SECULAR AS DISTINGUISHED FROM RELIGIOUS
ACTIVITIES.  INSPECTION AS TO USE IS A MINIMAL CONTACT. 

NO ONE OF THESE THREE FACTORS STANDING ALONE IS NECESSARILY
CONTROLLING; CUMULATIVELY ALL OF THEM SHAPE A NARROW AND LIMITED
RELATIONSHIP WITH GOVERNMENT WHICH INVOLVES FEWER AND LESS SIGNIFICANT
CONTACTS THAN THE TWO STATE SCHEMES BEFORE US IN LEMON AND DICENSO. 
THE RELATIONSHIP THEREFORE HAS LESS POTENTIAL FOR REALIZING THE
SUBSTANTIVE EVILS AGAINST WHICH THE RELIGION CLAUSES WERE INTENDED TO
PROTECT. 

WE THINK THAT CUMULATIVELY THESE THREE FACTORS ALSO SUBSTANTIALLY
LESSEN THE POTENTIAL FOR DIVISIVE RELIGIOUS FRAGMENTATION IN THE
POLITICAL ARENA.  THIS CONCLUSION IS ADMITTEDLY DIFFICULT TO DOCUMENT,
BUT NEITHER HAVE APPELLANTS POINTED TO ANY CONTINUING RELIGIOUS
AGGRAVATION ON THIS MATTER IN THE POLITICAL PROCESSES.  POSSIBLY THIS
CAN BE EXPLAINED BY THE CHARACTER AND DIVERSITY OF THE RECIPIENT
COLLEGES AND UNIVERSITIES AND THE ABSENCE OF ANY INTIMATE CONTINUING
RELATIONSHIP OR DEPENDENCY BETWEEN GOVERNMENT AND RELIGIOUSLY
AFFILIATED INSTITUTIONS.  THE POTENTIAL FOR DIVISIVENESS INHERENT IN
THE ESSENTIALLY LOCAL PROBLEMS OF PRIMARY AND SECONDARY SCHOOLS IS
SIGNIFICANTLY LESS WITH RESPECT TO A COLLEGE OR UNIVERSITY WHOSE
STUDENT CONSTITUENCY IS NOT LOCAL BUT DIVERSE AND WIDELY DISPERSED. 

        V 

FINALLY, WE MUST CONSIDER WHETHER THE IMPLEMENTATION OF THE ACT
INHIBITS THE FREE EXERCISE OF RELIGION IN VIOLATION OF THE FIRST
AMENDMENT.  APPELLANTS CLAIM THAT THE FREE EXERCISE CLAUSE IS VIOLATED
BECAUSE THEY ARE COMPELLED TO PAY TAXES, THE PROCEEDS OF WHICH IN PART
FINANCE GRANTS UNDER THE ACT.  APPELLANTS, HOWEVER, ARE UNABLE TO
IDENTIFY ANY COERCION DIRECTED AT THE PRACTICE OR EXERCISE OF THEIR
RELIGIOUS BELIEFS.  BOARD OF EDUCATION V. ALLEN, USPRA, AT 248-249. 
THEIR SHARE OF THE COST OF THE GRANTS UNDER THE ACT IS NOT
FUNDAMENTALLY DISTINGUISHABLE FROM THE IMPACT OF THE TAX EXEMPTION
SUSTAINED IN WALZ OR THE PROVISION OF TEXTBOOKS UPHELD IN ALLEN. 

WE CONCLUDE THAT THE ACT DOES NOT VIOLATE THE RELIGION CLAUSES OF
THE FIRST AMENDMENT EXCEPT THAT PART OF SEC. 754(B)(2) PROVIDING A 20
YEAR LIMITATION ON THE RELIGIOUS USE RESTRICTIONS CONTAINED IN SEC.
751(A)(2).  WE REMAND TO THE DISTRICT COURT WITH DIRECTIONS TO ENTER A
JUDGMENT CONSISTENT WITH THIS OPINION.                    VACATED AND
REMANDED. 

/1/  WE NOTE THAT THE COMMISSIONER OF EDUCATION APPARENTLY INCLUDES
NO TIME LIMITATION ON THE ASSURANCES THAT APPLICANTS ARE REQUIRED TO
GIVE WITH RESPECT TO THE USE OF THE FACILITIES FOR SECTARIAN
INSTRUCTION OR RELIGIOUS WORSHIP.  COMPARE SEC. 3(B)(3) WITH SEC. 3(C)
OF PART P OF THE APPLICATION FORM, APP. 87.     /2/  SEE FREUND,
COMMENT, PUBLIC AID TO PAROCHIAL SCHOOLS, 82 HARV.L.REV.  1680, 1691
(1969). 

/3/  E.G., J. FICHTER, PAROCHIAL SCHOOL:  A SOCIOLOGICAL STUDY 77
108 (1958); GIANNELLA, RELIGIOUS LIBERTY, NONESTABLISHMENT, AND
DOCTRINAL DEVELOPMENT, PT. II, THE NONESTABLISHMENT PRINCIPLE, 81
HARV.L.REV.  513, 574 (1968). 

/4/  GIANNELLA, SUPRA, N. 3, AT 583. 

/5/  M. PATTILLO & D. MACKENZIE, CHURCH-SPONSORED HIGHER EDUCATION
IN THE UNITED STATES 96, 167, 204 (1966). 

(FOR SEPARATE OPINION OF MR. JUSTICE BRENNAN, SEE ANTE, P. 642.) 

(FOR OPINION OF MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT, SEE
ANTE, P. 661.) 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING IN PART. 

THE CORRECT CONSTITUTIONAL PRINCIPLE FOR THIS CASE WAS STATED BY
PRESIDENT KENNEDY IN 1961 WHEN QUESTIONED AS TO HIS POLICY RESPECTING
AID TO PRIVATE AND PAROCHIAL SCHOOLS:  /1/ 

     "(THE CONSTITUTION CLEARLY PROHIBITS AID TO THE SCHOOL, TO

  PAROCHIAL SCHOOLS, I DON'T THINK THERE IS ANY DOUBT OF THAT. 

     "THE EVERSON CASE, WHICH IS PROBABLY THE MOST CELEBRATED CASE,

  PROVIDED ONLY BY A 5 TO 4 DECISION WAS IT POSSIBLE FOR A LOCAL

 COMMUNITY TO PROVIDE BUS RIDES TO NONPUBLIC SCHOOL CHILDREN.  BUT

  ALL THROUGH THE MAJORITY AND MINORITY STATEMENTS ON THAT

  PARTICULAR QUESTION THERE WAS A VERY CLEAR PROHIBITION AGAINST

  AID TO THE SCHOOL DIRECT.  THE SUPREME COURT MADE ITS DECISION IN

  THE EVERSON CASE BY DETERMINING THT THE AID WAS TO THE CHILD, NOT

  TO THE SCHOOL.  AID TO THE SCHOOL IS-- THERE ISN'T ANY ROOM FOR

  DEBATE ON THAT SUBJECT.  IT IS PROHIBITED BY THE CONSTITUTION,

  AND THE SUPREME COURT HAS MADE THAT VERY CLEAR.  AND THEREFORE

THERE WOULD BE NO POSSIBILITY OF OUR RECOMMENDING IT." 

TAXPAYER APPELLANTS BROUGHT THIS SUIT CHALLENGING THE VALIDITY OF
CERTAIN EXPENDITURES, MADE BY THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, FOR THE CONSTRUCTION OF (1) A LIBRARY AT SACRED HEART
UNIVERSITY, (2) A MUSIC, DRAMA, AND ARTS BUILDING AT ANNHURST COLLEGE,
(3) A LIBRARY AND A SCIENCE BUILDING AT FAIRFIELD UNIVERSITY, AND (4) A
LABORATORY AT ALBERTUS MAGNUS COLLEGE.  THE COMPLAINT ALLEGED THAT ALL
OF THESE INSTITUTIONS WERE CONTROLLED BY RELIGIOUS ORDERS AND THE ROMAN
CATHOLIC DIOCESE OF BRIDGEPORT, CONN., AND THAT IF THE FUNDS FOR
CONSTRUCTIONS WERE AUTHORIZED BY TITLE I OF THE HIGHER EDUCATION
FACILITIES ACT OF 1963, 77 STAT. 364, AS AMENDED, 20 U.S.C. 711-721
(1964 ED. AND SUPP. V), THEN THAT STATUTE WAS UNCONSTITUTIONAL BECAUSE
IT VIOLATED THE ESTABLISHMENT CLAUSE.  A THREE-JUDGE DISTRICT COURT WAS
CONVENED AND REJECTED APPELLANTS'  CLAIMS. 

TITLE I OF THE HIGHER EDUCATION FACILITIES ACT OF 1963 AUTHORIZES
GRANTS AND LOANS UP TO 50% OF THE COST FOR THE CONSTRUCTION OF
UNDERGRADUATE ACADEMIC FACILITIES IN BOTH PUBLIC AND PRIVATE COLLEGES
AND UNIVERSITIES.  A PROJECT IS ELIGIBLE IF CONSTRUCTION WILL RESULT
"IN AN URGENTLY NEEDED SUBSTANTIAL EXPANSION OF THE INSTITUTION'S
STUDENT ENROLLMENT CAPACITY, CAPACITY TO PROVIDE NEEDED HEALTH CARE TO
STUDENTS OR PERSONNEL OF THE INSTITUTION, OR CAPACITY TO CARRY OUT
EXTENSION AND CONTINUING EDUCATION PROGRAMS ON THE CAMPUS OF SUCH
INSTITUTION."  20 U.S.C. 716 (1964 ED., SUPP. V).  THE COMMISSIONER OF
EDUCATION IS AUTHORIZED TO PRESCRIBE BASIC CRITERIA AND IS INSTRUCTED
TO "GIVE SPECIAL CONSIDERATION TO EXPANSION OF UNDERGRADUATE
ENTROLLMENT CAPACITY."  20 U.S.C. 717 (1964 ED., SUPP. V). 

ACADEMIC FACILITIES ARE "STRUCTURES SUITABLE FOR USE AS CLASSROOMS,
LABORATORIES, LIBRARIES, AND RELATED FACILITIES NECESSARY OR
APPROPRIATE FOR INSTRUCTION OF STUDENTS, OR FOR RESEARCH . . .
PROGRAMS."  SPECIFICALLY EXCLUDED ARE FACILITIES "USED OR TO BE USED
FOR SECTARIAN INSTRUCTION OR AS A PLACE FOR RELIGIOUS WORSHIP" OR ANY
FACILITIES USED "PRIMARILY IN CONNECTION WITH ANY PART OF THE PROGRAM
OF A SCHOOL OR DEPARTMENT OF DIVINITY."  20 U.S.C. 751(A) (1964 ED.,
SUPP. V).  THE UNITED STATES RETAINS A 20-YEAR INTEREST IN THE
FACILITIES AND SHOULD A FACILITY BE USED OTHER THAN AS AN ACADEMIC
FACILITY THEN THE UNITED STATES IS ENTITLED TO RECOVER AN AMOUNT EQUAL
TO THE PROPORTION OF PRESENT VALUE WHICH THE FEDERAL GRANT BORE TO THE
ORIGINAL COST OF THE FACILITY.  20 U.S.C. 754(B).  ACCORDING TO A
STIPULATION ENTERED BELOW, DURING THE 20 YEARS THE OFFICE OF EDUCATION
ATTEMPTS TO INSURE THAT FACILITIES ARE USED IN THE MANNER REQUIRED BY
THE ACT PRIMARILY BY ON-SITE INSPECTIONS.  AT THE END OF THE 20-YEAR
PERIOD THE FEDERAL INTEREST IN THE FACILITY CEASES AND THE COLLEGE MAY
USE IT AS IT PLEASES.  SEE 20 U.S.C. 754(A). 

THE PUBLIC PURPOSE IN SECULAR EDUCATION IS, TO BE SURE, FURTHERED BY
THE PROGRAM.  YET THE SECTARIAN PURPOSE IS AIDED BY MAKING THE
PAROCHIAL SCHOOL SYSTEM VIABLE.  THE PURPOSE IS TO INCREASE "STUDENT
ENROLLMENT" AND THE STUDENTS OBVIOUSLY AIMED AT ARE THOSE OF THE
PARTICULAR FAITH NOW FINANCED BY TAXPAYERS' MONEY.  PAROCHIAL SCHOOLS
ARE NOT BEAMED AT AGNOSTICS, ATHEISTS, OR THOSE OF A COMPETING SECT. 
THE MORE SOPHISTICATED INSTITUTIONS MAY ADMIT MINORITIES; BUT THE
DOMINANT RELIGIOUS CHARACTER IS NOT CHANGED. 

THE REVERSION OF THE FACILITY TO THE PAROCHIAL SCHOOL /2/  AT THE
END OF 20 YEARS IS AN OUTRIGHT GRANT, MEASURABLE BY THE PRESENT
DISCOUNTED WORTH OF THE FACILITY.  A GIFT OF TAXPAYERS' FUNDS IN THAT
AMOUNT WOULD PLAINLY BE UNCONSTITUTIONAL.  THE COURT PROPERLY BARS IT
EVEN THOUGH DISGUISED IN THE FORM OF A REVERSIONARY INTEREST.  SEE LANE
V. WILSON, 307 U.S. 268, 275. 

BUT THE INVALIDATION OF THIS ONE CLAUSE CANNOT CURE THE
CONSTITUTIONAL INFIRMITIES OF THE STATUTE AS A WHOLE.  THE FEDERAL
GOVERNMENT IS GIVING RELIGIOUS SCHOOLS A BLOCK GRANT TO BUILD CERTAIN
FACILITIES.  THE FACT THAT MONEY IS GIVEN ONCE AT THE BEGINNING OF A
PROGRAM RATHER THAN APPORTIONED ANNUALLY AS IN LEMON AND DICENSO IS
WITHOUT CONSTITUTIONAL SIGNIFICANCE.  THE FIRST AMENDMENT BARS
ESTABLISHMENT OF A RELIGION.  AND AS I NOTED TODAY IN LEMON AND
DICENSO, THIS BAR HAS BEEN CONSISTENTLY INTERPRETED FROM EVERSON V.
BOARD OF EDUCATION, 330 U.S. 1, 16, THROUGH TORCASO V. WATKINS, 367
U.S. 488, 493 AS MEANING:  "NO TAX IN ANY AMOUNT, LARGE OR SMALL, CAN
BE LEVIED TO SUPPORT ANY RELIGIOUS ACTIVITIES OR INSTITUTIONS, WHATEVER
THEY MAY BE CALLED, OR WHATEVER FORM THEY MAY ADOPT TO TEACH OR
PRACTICE RELIGION."  THUS IT IS HARDLY IMPRESSIVE THAT RATHER THAN
GIVING A SMALLER AMOUNT OF MONEY ANNUALLY OVER A LONG PERIOD OF YEARS,
CONGRESS INSTEAD GIVES A LARGE AMOUNT ALL AT ONCE.  THE PLURALITY'S
DISTINCTION IS IN EFFECT THAT SMALL VIOLATIONS OF THE FIRST AMENDMENT
OVER A PERIOD OF YEARS ARE UNCONSTITUTIONAL (SEE LEMONAND DICENSO)
WHILE A HUGE VIOLATION OCCURRING ONLY ONCE IS DE MINIMIS.  I CANNOT
AGREE WITH SUCH SOPHISTRY. 

WHAT I HAVE SAID IN LEMON AND IN THE DICENSO CASES DECIDED TODAY IS
RELEVANT HERE.  THE FACILITIES FINANCED BY TAXPAYERS' FUNDS ARE NOT TO
BE USED FOR "SECTARIAN" PURPOSES.  RELIGIOUS TEACHING AND SECULAR
TEACHING ARE SO ENMESHED IN PAROCHIAL SCHOOLS THAT ONLY THE STRICTEST
SUPERVISION AND SURVEILLANCE WOULD INSURE COMPLIANCE WITH THE
CONDITION.  PAROCHIAL SCHOOLS MAY REQUIRE RELIGIOUS EXERCISES, EVEN IN
THE CLASSROOM.  A PAROCHIAL SCHOOL OPERATES ON ONE BUDGET.  MONEY NOT
SPENT FOR ONE PURPOSE BECOMES AVAILABLE FOR OTHER PURPOSES.  THUS THE
FACT THAT THERE ARE NO RELIGIOUS OBSERVANCES IN FEDERALLY FINANCED
FACILITIES IS NOT CONTROLLING BECAUSE REQUIRED RELIGIOUS OBSERVANCES
WILL TAKE PLACE IN OTHER BUILDINGS.  OUR DECISION IN ENGEL V. VITALE,
370 U.S. 421, HELD THAT A REQUIREMENT OF A PRAYER IN PUBLIC SCHOOLS
VIOLATED THE ESTABLISHMENT CLAUSE.  ONCE THESE SCHOOLS BECOME FEDERALLY
FUNDED BHEY BECOME BOUND BY FEDERAL STANDARDS (IVANHOE IRRIG.  DIST. 
V. MCCRACKEN, 357 U.S. 275, 296; ROSADO V. WYMAN, 397 U.S. 397, 427
(CONCURRING OPINION); SIMPKINS V. MOSES H. CONE MEMORIAL HOSP., 323
F.2D 959) AND ACCORDINGLY ADHERENCE TO ENGEL WOULD REQUIRE AN END TO
REQUIRED RELIGIOUS EXERCISES.  THAT KIND OF SURVEILLANCE AND CONTROL
WILL CERTAINLY BE OBNOXIOUS TO THE CHURCH AUTHORITIES AND IF DONE WILL
RADICALLY CHANGE THE CHARACTER OF THE PAROCHIAL SCHOOL.  YET IF THAT
SURVEILLANCE IS NOT SEARCHING AND CONTINUOUS, THIS FEDERAL FINANCING IS
OBNOXIOUS UNDER THE ESTABLISHMENT AND FREE EXERCISE CLAUSES FOR THE
REASONS STATED IN THE COMPANION CASES. 

IN OTHER WORDS, SURVEILLANCE CREATES AN ENTANGLEMENT OF GOVERNMENT
AND RELIGION WHICH THE FIRST AMENDMENT WAS DESIGNED TO AVOID.  YET
AFTER TODAY'S DECISION THERE WILL BE A REQUIREMENT OF SURVEILLANCE
WHICH WILL LAST FOR THE USEFUL LIFE OF THE BUILDING AND AS WE HAVE
PREVIOUSLY NOTED, "(IT) IS HARDLY LACK OF DUE PROCESS FOR THE
GOVERNMENT TO REGULATE THAT WHICH IT SUBSIDIZES."  WICKARD V. FILBURN,
317 U.S. 111, 131.  THE PRICE OF THE SUBSIDY UNDER THE ACT IS VIOLATION
OF THE FREE EXERCISE CLAUSE.  COULD A COURSE IN THE HISTORY OF
METHODISM BE TAUGHT IN A FEDERALLY FINANCED BUILDING?  WOULD A
RELIGIOUSLY SLANTED VERSION OF THE REFORMATION OR QUEBEC POLITICS UNDER
DUPLESSIS BE PERMISSIBLE?  HOW CAN THE GOVERNMENT KNOW WHAT IS TAUGHT
IN THE FEDERALLY FINANCED BUILDING WITHOUT A CONTINUOUS AUDITING OF
CLASSROOM INSTRUCTION?  YET BOTH THE FREE EXERCISE CLAUSE AND ACADEMIC
FREEDOM ARE VIOLATED WHEN THE GOVERNMENT AGENT MUST BE PRESENT TO
DETERMINE WHETHER THE COURSE CONTENT IS SATISFACTORY. 

AS I SAID IN THE LEMON AND DICENSO CASES, A PAROCHIAL SCHOOL IS A
UNITARY INSTITUTION WITH SUBTLE BLENDING OF SECTARIAN AND SECULAR
INSTRUCTION.  THUS THE PRACTICES OF RELIGIOUS SCHOOLS ARE IN NO WAY
AFFECTED BY THE MINIMAL REQUIREMENT THAT THE GOVERNMENT FINANCED
FACILITY MAY NOT "BE USED FOR SECTARIAN INSTRUCTION OR AS A PLACE FOR
RELIGOUS WORSHIP."  MONEY SAVED FROM ONE ITEM IN THE BUDGET IS FREE TO
BE USED ELSEWHERE.  BY CONDUCTING RELIGIOUS SERVICES IN ANOTHER
BUILDING, THE SCHOOL HAS-- RENT FREE-- A BUILDING FOR NONSECTARIAN
USE.  THIS IS NOT CALLED ESTABLISHMENT SIMPLY BECAUSE THE GOVERNMENT
RETAINS A CONTINUING INTEREST IN THE BUILDING FOR ITS USEFUL LIFE, EVEN
THOUGH THE RELIGIOUS SCHOOLS NEED NEVER PAY A CENT FOR THE USE OF THE
BUILDING. 

MUCH IS MADE OF THE NEED FOR PUBLIC AID TO CHURCH SCHOOLS IN LIGHT
OF THEIR PRESSING FISCAL PROBLEMS.  DR. EUGENE C. BLAKE OF THE
PRESBYTERIAN CHURCH, HOWEVER, WROTE IN 1959:  /3/ 

"WHEN ONE REMEMBERS THAT CHURCHES PAY NO INHERITANCE TAX (CHURCHES
DO NOT DIE), THAT CHURCHES MAY OWN AND OPERATE BUSINESS AND BE EXEMPT
FROM THE 52 PERCENT CORPORATE INCOME TAX, AND THAT REAL PROPERTY USED
FOR CHURCH PURPOSES (WHICH IN SOME STATES ARE MOST GENEROUSLY
CONSTRUED) IS TAX EXEMPT, IT IS NOT UNREASONABLE TO PROPHESY THAT WITH
REASONABLY PRUDENT MANAGEMENT, THE CHURCHES OUGHT TO BE ABLE TO CONTROL
THE WHOLE ECONOMY OF THE NATION WITHIN THE PREDICTABLE FUTURE.  THAT
THE GROWING WEALTH AND PROPERTY OF THE CHURCHES WAS PARTIALLY
RESPONSIBLE FOR REVOLUTIONARY EXPROPRIATIONS OF CHURCH PROPERTY IN
ENGLAND IN THE SIXTEENTH CENTURY, IN FRANCE IN THE EIGHTEENTH CENTURY,
IN ITALY IN THE NINETEENTH CENTURY, AND IN MEXICO, RUSSIA,
CZECHOSLOVAKIA AND HUNGARY (TO NAME A FEW EXAMPLES) IN THE TWENTIETH
CENTURY, SEEMS SELF-EVIDENT.  A GOVERNMENT WITH MOUNTING TAX PROBLEMS
CANNOT BE EXPECTED TO KEEP ITS HANDS OFF THE WEALTH OF A RICH CHURCH
FOREVER.  THAT SUCH A REVOLUTION IS ALWAYS ACCOMPANIED BY
ANTICLERICALISM AND ATHEISM SHOULD NOT BE SURPRISING." 

THE MOUNTING WEALTH OF THE CHURCHES /4/  MAKES IRONIC THEIR
INCESSANT DEMANDS ON THE PUBLIC TREASURY.  I SAID IN MY DISSENT IN WALZ
V. TAX COMM'N, 397 U.S. 664, 714: 

     "THE RELIGIOUSLY USED REAL ESTATE OF THE CHURCHES TODAY

  CONSTITUTES A VAST DOMAIN.  SEE M. LARSON & C. LOWELL, THE

  CHURCHES:  THEIR RICHES, REVENUES, AND IMMUNITIES (1969).  THEIR

  ASSETS TOTAL OVER $141 BILLION AND THEIR ANNUAL INCOME AT LEAST

  $22 BILLION.  ID., AT 232.  AND THE EXTENT TO WHICH THEY ARE

  FEEDING FROM THE PUBLIC TROUGH IN A VARIETY OF FORMS IS

  ALARMING.  ID., C. 10." 

SEE A. BALK, THE RELIGION BUSINESS (1968); 20 CHURCH AND STATE 8
(1967). 

IT IS ALMOST UNBELIEVABLE THAT WE HAVE MADE THE RADICAL DEPARTURE
FROM MADISON'S REMONSTRANCE /5/  MEMORIALIZED IN TODAY'S DECISION. 

I DISSENT NOT BECAUSE OF ANY LACK OF RESPECT FOR PAROCHIAL SCHOOLS
BUT OUT OF A FEELING OF DESPAIR THAT THE RESPECT WHICH THROUGH HISTROY
HAS BEEN ACCORDED THE FIRST AMENDMENT IS THIS DAY LOST. 

IT SHOULD BE REMEMBERED THAT IN THIS CASE WE DEAL WITH FEDERAL
GRANTS AND WITH THE COMMAND THAT "CONGRESS SHALL MAKE NO LAW RESPECTING
AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE
THEREOF."  THE MILLION-DOLLAR GRANTS SUSTAINED TODAY PUT MADISON'S
MISERABLE "THREE PENCE" TO SHAME.  BUT HE EVEN THOUGHT, AS I DO, THAT
EVEN A SMALL AMOUNT COMING OUT OF THE POCKET OF TAXPAYERS AND GOING
INTO THE COFFERS OF A CHURCH WAS NOT IN KEEPING WITH OUR CONSTITUTIONAL
IDEAL. 

I WOULD REVERSE THE JUDGMENT BELOW. 

/1/  PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES, JOHN F.
KENNEDY, 1961, PP. 142-143, NEWS CONFERENCE MARCH 1, 1961. 

/2/  "IT SHOULD BE CLEAR TO ALL THAT A ROMAN CATHOLIC PAROCHIAL
SCHOOL IS AN INTEGRAL PART OF THAT CHURCH, AS DEFINITELY SO AS IS THE
SERVICE OF WORSHIP.  A PAROCHIAL SCHOOL IS USUALLY DEVELOPED IN
CONNECTION WITH A CHURCH.  IN MANY CASES THE CHURCH AND SCHOOL MONIES
ARE NOT EVEN SEPARATED.  SUCH A SCHOOL IS IN NO SENSE A PUBLIC SCHOOL,
EVEN THOUGH SOME CHILDREN FROM OTHER GROUPS MAY BE ADMITTED TO IT.  THE
BUILDINGS ARE NOT OWNED AND CONTROLLED BY A COMMUNITY OF AMERICAN
PEOPLE, NOT EVEN BY A COMMUNITY OF AMERICAN ROMAN CATHOLIC PEOPLE.  THE
TITLE OF OWNERSHIP IN A PUBLIC SCHOOL IS VESTED IN THE LOCAL COMMUNITY,
IN THE ELECTED OFFICERS OF THE SCHOOL BOARD OR THE CITY COUNCIL.  BUT
THE TITLE OF OWNERSHIP IN A PAROCHIAL SCHOOL IS VESTED IN THE BISHOP AS
AN INDIVIDUAL, WHO IS APPOINTED BY, WHO IS UNDER THE DIRECT CONTROL OF,
AND WHO REPORTS TO THE POPE IN ROME."  L. BOETTNER, ROMAN CATHOLICISM
375 (1962).     /3/  TAX EXEMPTION AND THE CHURCHES, 3 CHRISTIANITY
TODAY, NO. 22, AUG. 3, 1959, PP. 6, 7.     /4/  CHURCHES THAT OWNED AN
UNRELATED BUSINESS ENJOYED UNTIL RECENTLY A SPECIAL TAX ADVANTAGE. 
OTHER CHARITABLE ORGANIZATIONS WERE TAXED ON THEIR "UNRELATED BUSINESS
TAXABLE INCOME" DERIVED FROM BUSINESSES REGULARLY CARRIED ON BY THEM. 
SEC. 512 OF THE INTERNAL REVENUE CODE OF 1954.  THAT TAX WAS THE NORMAL
TAX AND SURTAX.  THUS IN THE CASE OF INCOME DERIVED FROM CORPORATIONS
IT WAS 22% ON THE FIRST $25,000 AND 48% ON ANY ADDITIONAL INCOME.  SEC.
11.  CHURCHES WERE EXEMPTED FROM THIS "UNRELATED BUSINESS INCOME" TAX. 
SEC. 511(A)(2).  THUS THEY PAID NO FEDERAL TAXES ON ANY OF THEIR
REVENUES.  UNDER THE TAX REFORM ACT OF 1969, 83 STAT. 487, THE TAX
ADVANTAGE FOR UNRELATED BUSINESS INCOME AS RESPECTS ALL BUSINESSES
OWNED BY CHURCHES (PRIOR TO AMY 27, 1969) WILL BE TERMINATED AFTER
JANUARY 1, 1976.  SEC. 121(B)(2), 83 STAT. 540, 26 U.S.C. 512(B)(16)
(1964 ED., SUPP. V).  SEE H.R. REP. NO. 91-413 (PT. I), PP. 46-47, 48;
H.R. CONF. REP. NO. 91-782, P. 67. 

/5/  THE REMONSTRANCE IS REPRODUCED IN APPENDICES TO THE DISSENTING
OPINION OF RUTLEDGE, J., IN EVERSON, 330 U.S.,AT 63, AND TO THAT OF
DOUGLAS, J., IN WALZ V. TAX COMM'N, 397 U.S.,AT 719. 

LEO PFEFFER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS
WERE PETER L. COSTAS, PAUL W. ORTH, AND JERRY WAGNER. 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR APPELLEES RICHARDSON ET AL.
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL RUCKELSHAUS, ROBERT V. ZENER, AND DONALD L. HOROWITZ.  F.
MICHAEL AHERN, ASSISTANT ATTORNEY GENERAL OF CONNECTICUT, ARGUED THE
CAUSE FOR APPELLEE PETERSON.  WITH HIM ON THE BRIEF WAS ROBERT K.
KILLIAN, ATTORNEY GENERAL.  EDWARD BENNETT WILLIAMS ARUGED THE CAUSE
FOR APPELLEE COLLEGES AND UNIVERSITIES.  WITH HIM ON THE BRIEF WERE
JEREMIAH C. COLLINS, HOWARD T. OWENS, LAWRENCE W. IANNOTTI, AND BRUCE
LEWELLYN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY FRANKLIN C.
SALISBURY FOR PROTESTANTS AND OTHER AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE, AND BY PETER L. COSTAS AND PAUL W. ORTH FOR THE
CONNECTICUT STATE CONFERENCE OF BRANCHES OF THE NAACP ET AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY WILBER G.
KATZ AND JOHN HOLT MYERS FOR THE AMERICAN COUNCIL ON EDUCATION ET AL.,
AND BY NATHAN LEWIN FOR THE NATIONAL JEWISH COMMISSION ON LAW AND
PUBLIC AFFAIRS. 
..END :








CLAY V. UNITED STATES, 403 U.S. 698 


       CLAY, AKA ALI V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

        NO. 783.  ARGUED APRIL 19, 1971-- DECIDED JUNE 28, 1971 


PETITIONER APPEALED HIS LOCAL DRAFT BOARD'S REJECTION OF HIS
APPLICATION FOR CONSCIENTIOUS OBJECTOR CLASSIFICATION.  THE JUSTICE
DEPARTMENT, IN RESPONSE TO THE STATE APPEAL BOARD'S REFERRAL FOR
ADVISORY RECOMMENDATION, CONCLUDED, CONTRARY TO A HEARING OFFICER'S
RECOMMENDATION, THAT PETITIONER'S CLAIM SHOULD BE DENIED, AND WROTE
THAT BOARD THAT PETITIONER DID NOT MEET ANY OF THE THREE BASIC TESTS
FOR CONSCIENTIOUS OBJECTOR STATUS.  THE APPEAL BOARD THEN DENIED
PETITIONER'S CLAIM, BUT WITHOUT STATING ITS REASONS.  PETITIONER
REFUSED TO REPORT FOR INDUCTION, FOR WHICH HE WAS THEREAFTER TRIED AND
CONVICTED.  THE COURT OF APPEALS AFFIRMED.  IN THIS COURT THE
GOVERNMENT HAS RIGHTLY CONCEDED THE INVALIDITY OF TWO OF THE GROUNDS
FOR DENIAL OF PETITIONER'S CLAIM GIVEN IN ITS LETTER TO THE APPEAL
BOARD, BUT ARGUES THAT THERE WAS FACTUAL SUPPORT FOR THE THIRD GROUND. 
HELD:  SINCE THE APPEAL BOARD GAVE NO REASON FOR THE DENIAL OF A
CONSCIENTIOUS OBJECTOR EXEMPTION TO PETITIONER, AND IT IS IMPOSSIBLE TO
DETERMINE ON WHICH OF THE THREE GROUNDS OFFERED IN THE JUSTICE
DEPARTMENT'S LETTER THAT BOARD RELIED, PETITIONER'S CONVICTION MUST BE
REVERSED.  SICURELLA V. UNITED STATES, 348 U.S. 385. 

430 F.2D 165, REVERSED. 

PER CURIAM 

THE PETITIONER WAS CONVICTED FOR WILLFUL REFUSAL TO SUBMIT TO
INDUCTION INTO THE ARMED FORCES.  62 STAT. 622, AS AMENDED, 50 U.S.C.
APP. 462(A) (1964 ED., SUPP. V).  THE JUDGMENT OF CONVICTION WAS
AFFIRMED BY THE COURT OF APPEAL FOR THE FIFTH CIRCUIT.  /1/  WE GRANTED
CERTIORARI, 400 U.S. 990, TO CONSIDER WHETHER THE INDUCTION NOTICE WAS
INVALID BECAUSE GROUNDED UPON AN ERRONEOUS DENIAL OF THE PETITIONER'S
CLAIM TO BE CLASSIFIED AS A CONSCIENTIOUS OBJECTOR. 

        I 

THE PETITIONER'S APPLICATION FOR CLASSIFICATION AS A CONSCIENTIOUS
OBJECTOR WAS TURNED DOWN BY HIS LOCAL DRAFT BOARD, AND HE TOOK AN
ADMINISTRATIVE APPEAL.  THE STATE APPEAL BOARD TENTATIVELY CLASSIFIED
HIM I-A (ELIGIBLE FOR UNRESTRICTED MILITARY SERVICE) AND REFERRED HIS
FILE TO THE DEPARTMENT OF JUSTICE FOR AN ADVISORY RECOMMENDATION, IN
ACCORDANCE WITH THEN-APPLICABLE PROCEDURES.  50 U.S.C. APP. 456(J)
(1964 ED., SUPP. V).  THE FBI THEN CONDUCTED AN "INQUIRY" AS REQUIRED
BY THE STATUTE, INTERVIEWING SOME 35 PERSONS, INCLUDING MEMBERS OF THE
PETITIONER'S FAMILY AND MANY OF HIS FRIENDS, NEIGHBORS, AND BUSINESS
AND RELIGIOUS ASSOCIATES. 

THERE FOLLOWED A HEARING ON "THE CHARACTER AND GOOD FAITH OF THE
(PETITIONER'S) OBJECTIONS" BEFORE A HEARING OFFICER APPOINTED BY THE
DEPARTMENT.  THE HEARING OFFICER, A RETIRED JUDGE OF MANY YEARS'
EXPERIENCE, /2/  HEARD TESTIMONY FROM THE PETITIONER'S MOTHER AND
FATHER, FROM ONE OF HIS ATTORNEYS, FROM A MINISTER OF HIS RELIGION, AND
FROM THE PETITIONER HIMSELF.  HE ALSO HAD THE BENEFIT OF A FULL REPORT
FROM THE FBI.  ON THE BASIS OF THIS RECORD THE HEARING OFFICER
CONCLUDED THAT THE REGISTRANT WAS SINCERE IN HIS OBJECTION ON RELIGIOUS
GROUNDS TO PARTICIPATION IN WAR IN ANY FORM, AND HE RECOMMENDED THAT
THE CONSCIENTIOUS OBJECTOR CLAIM BE SUSTAINED.  /3/ 

NOTWITHSTANDING THIS RECOMMENDATION, THE DEPARTMENT OF JUSTICE WROTE
A LETTER TO THE APPEAL BOARD, ADVISING IT THAT THE PETITIONER'S
CONSCIENTIOUS OBJECTOR CLAIM SHOULD BE DENIED.  UPON RECEIPT OF THIS
LETTER OF ADVICE, THE BOARD DENIED THE PETITIONER'S CLAIM WITHOUT A
STATEMENT OF REASONS.  AFTER VARIOUS FURTHER PROCEEDINGS WHICH IT IS
NOT NECESSARY TO RECOUNT HERE, THE PETITIONER WAS ORDERED TO REPORT FOR
INDUCTION.  HE REFUSED TO TAKE THE TRADITIONAL STEP FORWARD, AND THIS
PROSECUTION AND CONVICTION FOLLOWED. 

        II 

IN ORDER TO QUALIFY FOR CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR,
A REGISTRANT MUST SATISFY THREE BASIC TESTS.  HE MUST SHOW THAT HE IS
CONSCIENTIOUSLY OPPOSED TO WAR IN ANY FORM.  GILLETTE V. UNITED STATES,
401 U.S. 437.  HE MUST SHOW THAT THIS OPPOSITION IS BASED UPON
RELIGIOUS TRAINING AND BELIEF, AS THE TERM HAS BEEN CONSTRUED IN OUR
DECISIONS.  UNITED STATES V. SEEGER, 380 U.S. 163; WELSH V. UNITED
STATES, 398 U.S. 333.  AND HE MUST SHOW THAT THIS OBJECTION IS
SINCERE.  WITMER V. UNITED STATES, 348 U.S. 375.  IN APPLYING THESE
TESTS, THE SELECTIVE SERVICE SYSTEM MUST BE CONCERNED WITH THE
REGISTRANT AS AN INDIVIDUAL, NOT WITH ITS OWN INTERPRETATION OF THE
DOGMA OF THE RELIGIOUS SECT, IF ANY, TO WHICH HE MAY BELONG.  UNITED
STATES V. SEEGER, SUPRA; GILLETTE V. UNITED STATES, SUPRA; WILLIAMS V.
UNITED STATES, 216 F.2D 350, 352. 

IN ASKING US TO AFFIRM THE JUDGMENT OF CONVICTION, THE GOVERNMENT
ARGUES THAT THERE WAS A "BASIS IN FACT," CF. ESTEP V. UNITED STATES,
327 U.S. 114, FOR HOLDING THAT THE PETITIONER IS NOT OPPOSED TO "WAR IN
ANY FORM," BUT IS ONLY SELECTIVELY OPPOSED TO CERTAIN WARS.  SEE
GILLETTE V. UNITED STATES, SUPRA.  COUNSEL FOR THE PETITIONER, NEEDLESS
TO SAY, TAKES THE OPPOSITE POSITION.  THE ISSUE IS ONE THAT NEED NOT BE
RESOLVED IN THIS CASE.  FOR WE HAVE CONCLUDED THAT EVEN IF THE
GOVERNMENT'S POSITION ON THIS QUESTION IS CORRECT, THE CONVICTION
BEFORE US MUST STILL BE SET ASIDE FOR ANOTHER QUITE INDEPENDENT
REASON. 

III 

THE PETITIONER'S CRIMINAL CONVICTION STEMMED FROM THE SELECTIVE
SERVICE SYSTEM'S DENIAL OF HIS APPEAL SEEKING CONSCIENTIOUS OBJECTOR
STATUS.  THAT DENIAL, FOR WHICH NO REASONS WERE EVEN GIVEN, WAS, AS WE
HAVE SAID, BASED ON A RECOMMENDATION OF THE DEPARTMENT OF JUSTICE,
OVERRULING ITS HEARING OFFICER AND ADVISING THE APPEAL BOARD THAT IT
"FINDS THAT THE REGISTRANT'S CONSCIENTIOUS-OBJECTOR CLAIM IS NOT
SUSTAINED AND RECOMMENDS TO YOUR BOARD THAT HE BE NOT (SO)
CLASSIFIED."  THIS FINDING WAS CONTAINED IN A LONG LETTER OF
EXPLANATION, FROM WHICH IT IS EVIDENT THAT SELECTIVE SERVICE OFFICIALS
WERE LED TO BELIEVE THAT THE DEPARTMENT HAD FOUND THAT THE PETITIONER
HAD FAILED TO SATISFY EACH OF THE THREE BASIC TESTS FOR QUALIFICATION
AS A CONSCIENTIOUS OBJECTOR. 

AS TO THE REQUIREMENT THAT A REGISTRANT MUST BE OPPOSED TO WAR IN
ANY FORM, THE DEPARTMENT LETTER SAID THAT THE PETITIONER'S EXPRESSED
BELIEFS "DO NOT APPEAR TO PRECLUDE MILITARY SERVICE IN ANY FORM, BUT
RATHER ARE LIMITED TO MILITARY SERVICE IN THE ARMED FORCES OF THE
UNITED STATES . . . THESE CONSTITUTE ONLY OBJECTIONS TO CERTAIN TYPES
OF WAR IN CERTAIN CIRCUMSTANCES, RATHER THAN A GENERAL SCRUPLE AGAINST
PARTICIPATION IN WAR IN ANY FORM.  HOWEVER, ONLY A GENERAL SCRUPLE
AGAINST PARTICIPATION IN WAR IN ANY FORM CAN SUPPORT AN EXEMPTION AS A
CONSCIENTIOUS OBJECTOR UNDER THE ACT.  UNITED STATES V. KAUTEN, 133
F.2D 703." 

AS TO THE REQUIREMENT THAT A REGISTRANT'S OPPOSITION MUST BE BASED
UPON RELIGIOUS TRAINING AND BELIEF, THE DEPARTMENT LETTER SAID:  "IT
SEEMS CLEAR THAT THE TEACHINGS OF THE NATION OF ISLAM PRECLUDE FIGHTING
FOR THE UNITED STATES NOT BECAUSE OF OBJECTIONS TO PARTICIPATION IN WAR
IN ANY FORM BUT RATHER BECAUSE OF POLITICAL AND RACIAL OBJECTIONS TO
POLICIES OF THE UNITES STATES AS INTERPRETED BY ELIJAH MUHAMMAD . . .
IT IS THEREFORE OUR CONCLUSION THAT REGISTRANT'S CLAIMED OBJECTIONS TO
PARTICIPATION IN WAR INSOFAR AS THEY ARE BASED UPON THE TEACHINGS OF
THE NATION OF ISLAM, REST ON GROUNDS WHICH PRIMARILY ARE POLITICAL AND
RACIAL." 

AS TO THE REQUIREMENT THAT A REGISTRANT'S OPPOSITION TO WAR MUST BE
SINCERE, THAT PART OF THE LETTER BEGAN BY STATING THAT "THE REGISTRANT
HAS NOT CONSISTENTLY MANIFESTED HIS CONSCIENTIOUS-OBJECTOR CLAIM.  SUCH
A COURSE OF OVERT MANIFESTATIONS IS REQUISITE TO ESTABLISHING A
SUBJECTIVE STATE OF MIND AND BELIEF."  THERE FOLLOWED SEVERAL
PARAGRAPHS RECITING THE TIMING AND CIRCUMSTANCES OF THE PETITIONER'S
CONSCIENTIOUS OBJECTOR CLAIM, AND A CONCLUDING PARAGRAPH SEEMING TO
STATE A RULE OF LAW-- THAT "A REGISTRANT HAS NOT SHOWN OVERT
MANIFESTATIONS SUFFICIENT TO ESTABLISH HIS SUBJECTIVE BELIEF WHERE, AS
HERE, HIS CONSCIENTIOUS-OBJECTOR CLAIM WAS NOT ASSERTED UNTIL MILITARY
SERVICE BECAME IMMINENT.  CAMPBELL V. UNITED STATES, 221 F.2D 454. 
UNITED STATES V. CORLISS, 280 F.2D 808, CERT. DENIED, 364 U.S. 884." 

IN THIS COURT THE GOVERNMENT HAS NOW FULLY CONCEDED THAT THE
PETITIONER'S BELIEFS ARE BASED UPON "RELIGIOUS TRAINING AND BELIEF," AS
DEFINED IN UNITED STATES V. SEEGER, SUPRA:  "THERE IS NO DISPUTE THAT
PETITIONER'S PROFESSED BELIEFS WERE FOUNDED ON BASIC TENETS OF THE
MUSLIM RELIGION, AS HE UNDERSTOOD THEM, AND DERIVED IN SUBSTANTIAL PART
FROM HIS DEVOTION TO ALLAH AS THE SUPREME BEING.  THUS, UNDER THIS
COURT'S DECISION IN UNITED STATES V. SEEGER, 380 U.S. 163, HIS CLAIM
UNQUESTIONABLY WAS WITHIN THE 'RELIGIOUS TRAINING AND BELIEF' CLAUSE OF
THE EXEMPTION PROVISION.  /4/  THIS CONCESSION IS CLEARLY CORRECT.  FOR
THE RECORD SHOWS THAT THE PETITIONER'S BELIEFS ARE FOUNDED ON TENETS OF
THE MUSLIM RELIGION AS HE UNDERSTANDS THEM.  THEY ARE SURELY NO LESS
RELIGIOUSLY BASED THAN THOSE OF THE THREE REGISTRANTS BEFORE THIS COURT
IN SEEGER.  SEE ALSO WELSH V. UNITED STATES, 398 U.S. 333. 

THE GOVERNMENT IN THIS COURT HAS ALSO MADE CLEAR THAT IT NO LONGER
QUESTIONS THE SINCEREITY OF THE PETITIONER'S BELIEFS.  /5/  THIS
CONCESSION IS ALSO CORRECT.  THE DEPARTMENT HEARING OFFICER-- THE ONLY
PERSON AT THE ADMINISTRATIVE APPEAL LEVEL WHO CAREFULLY EXAMINED THE
PETITIONER AND OTHER WITNESSES IN PERSON AND WHO HAD THE BENEFIT OF THE
FULL FBI FILE-- FOUND "THAT THE REGISTRANT IS SINCERE IN HIS
OBJECTION."  THE DEPARTMENT OF JUSTICE WAS WRONG IN ADVISING THE BOARD
IN TERMS OF A PURPORTED RULE OF LAW THAT IT SHOULD DISREGARD THIS
FINDING SIMPLY BECAUSE OF THE CIRCUMSTANCES AND TIMING OF THE
PETITIONER'S CLAIM.  SEE EHLERT V. UNITED STATES, 402 U.S. 99, 103-104;
UNITED STATES EX REL. LEHMAN V. LAIRD, 430 F.2D 96, 99; UNITED STATES
V. ABBOTT, 425 F.2D 910, 915; UNITED STATES EX REL. TOBIAS V. LAIRD,
413 F.2D 936, 939-940; COHEN V. LAIRD, 315 F.SUPP.  1265, 1277-1278. 

SINCE THE APPEAL BOARD GAVE NO REASONS FOR ITS DENIAL OF THE
PETITIONER'S CLAIM, THERE IS ABSOLUTELY NO WAY OF KNOWING UPON WHICH OF
THE THREE GROUNDS OFFERED IN THE DEPARTMENT'S LETTER IT RELIED.  YET
THE GOVERNMENT NOW ACKNOWLEDGES THAT TWO OF THOSE GROUNDS WERE NOT
VALID.  AND, THE GOVERNMENT'S CONCESSION ASIDE, IT IS INDISPUTABLY
CLEAR, FOR THE REASONS STATED, THAT THE DEPARTMENT WAS SIMPLY WRONG AS
A MATTER OF LAW IN ADVISING THAT THE PETITIONER'S BELIEFS WERE NOT
RELIGIOUSLY BASED AND WERE NOT SINCERELY HELD. 

THIS CASE, THEREFORE, FALLS SQUARELY WITHIN THE FOUR CORNERS OF THIS
COURT'S DECISION IN SICURELLA V. UNITED STATES, 348 U.S. 385.  THERE AS
HERE THE COURT WAS ASKED TO HOLD THAT AN ERROR IN AN ADVICE LETTER
PREPARED BY THE DEPARTMENT OF JUSTICE DID NOT REQUIRE REVERSAL OF A
CRIMINAL CONVICTION BECAUSE THERE WAS A GROUND ON WHICH THE APPEAL
BOARD MIGHT PROPERLY HAVE DENIED A CONSCIENTIOUS OBJECTOR
CLASSIFICATION.  THIS COURT REFUSED TO CONSIDER THE PROFFERED
ALTERNATIVE GROUND: 

"(WE FEEL THAT THIS ERROR OF LAW BY THE DEPARTMENT, TO WHICH THE
APPEAL BOARD MIGHT NATURALLY LOOK FOR GUIDANCE ON SUCH QUESTIONS, MUST
VITIATE THE ENTIRE PROCEEDINGS AT LEAST WHERE IT IS NOT CLEAR THAT THE
BOARD RELIED ON SOME LEGITIMATE GROUND.  HERE, WHERE IT IS IMPOSSIBLE
TO DETERMINE ON EXACTLY WHICH GROUNDS THE APPEAL BOARD DECIDED, THE
INTEGRITY OF THE SELECTIVE SERVICE SYSTEMS DEMANDS, AT LEAST, THAT THE
GOVERNMENT NOT RECOMMEND ILLEGAL GROUNDS.  THERE IS AN IMPRESSIVE BODY
OF LOWER COURT CASES TAKING THIS POSITION AND WE BELIEVE THAT THEY
STATE THE CORRECT RULE."  ID., AT 392. 

THE DOCTRINE THUS 'RTICULATED 16 YEARS AGO IN SICURELLA WAS HARDLY
NEW.  IT WAS LONG AGO ESTABLISHED AS ESSENTIAL TO THE ADMINISTRATION OF
CRIMINAL JUSTICE.  STROMBERG V. CALIFORNIA, 283 U.S. 359.  IN STROMBERG
THE COURT REVERSED A CONVICTION FOR VIOLATION OF A CALIFORNIA STATUTE
CONTAINING THREE SEPARATE CLAUSES, FINDING ONE OF THE THREE CLAUSES
CONSTITUTIONALLY INVALID.  AS CHIEF JUSTICE HUGHES PUT THE MATTER, "(IT
IS IMPOSSIBLE TO SAY UNDER WHICH CLAUSE OF THE STATUTE THE CONVICTION
WAS OBTAINED."  THUS, "IF ANY OF THE CLAUSES IN QUESTION IS INVALID
UNDER THE FEDERAL CONSTITUTION, THE CONVICTION CANNOT BE UPHELD."  ID.,
AT 368. 

THE APPLICATION OF THIS DOCTRINE IN THE AREA OF SELECTIVE SERVICE
LAW GOES BACK AT LEAST TO 1945, AND JUDGE LEARNED HAND'S OPINION FOR
THE SECOND CIRCUIT IN UNITED STATES V. CAIN, 149 F.2D 338.  IT IS A
DOCTRINE THAT HAS BEEN CONSISTENTLY AND REPEATEDLY FOLLOWED BY THE
FEDERAL COURTS IN DEALING WITH THE CRIMINAL SANCTIONS OF THE SELECTIVE
SERVICE LAWS.  SEE, E.G., UNITED STATES V. LEMMENS, 430 F.2D 619, 623
624 (CA7 1970); UNITED STATES V. BROYLES, 423 F.2D 1299, 1303-1304 (CA4
1970); UNITED STATES V. HAUGHTON, 413 F.2D 736 (CA9 1969); UNITED
STATES V. JAKOBSON, 325 F.2D 409, 416-417 (CA2 1963), AFF'D SUB NOM.
UNITED STATES V. SEEGER, 380 U.S. 163; KRETCHET V. UNITED STATES, 284
F.2D 561, 565-566 (CA9 1960); YPPARILA V. UNITED STATES, 219 F.2D 465,
469 (CA10 1954); UNITED STATES V. ENGLANDER, 271 F.SUPP.  182 (SDNY
1967); UNITED STATES V. ERIKSON, 149 F.SUPP.  576, 578-579 (SDNY
1957).  IN EVERY ONE OF THE ABOVE CASES THE DEFENDANT WAS ACQUITTED OR
THE CONVICTION SET ASIDE UNDER THE SICURELLA APPLICATION OF THE
STROMBERG DOCTRINE. 

THE LONG ESTABLISHED RULE OF LAW EMBODIED IN THESE SETTLED
PRECEDENTS THUS CLEARLY REQUIRES THAT THE JUDGMENT BEFORE US BE
REVERSED. 

              IT IS SO ORDERED. 

/1/  THE ORIGINAL JUDGMENT OF AFFIRMANCE, 395 F.2D 901, WAS SET
ASIDE BY THIS COURT ON A GROUND WHOLLY UNRELATED TO THE ISSUES NOW
BEFORE US, SUB NOM.  GIORDANO V. UNITED STATES, 394 U.S. 319.  UPON
REMAND, THE COURT OF APPEALS AGAIN AFFIRMED THE CONVICTION.  430 F.2D
165. 

/2/  THE HEARING OFFICER WAS JUDGE LAWRENCE GRAUMAN, WHO HAD SERVED
ON KENTUCKY CIRCUIT COURT FOR SOME 25 YEARS. 

/3/  APPLICABLE REGULATIONS, 32 CFR 1626.25 (1967 ED.), DID NOT
REQUIRES THAT THE HEARING OFFICER'S REPORT BE TRANSMITTED TO THE APPEAL
BOARD, AND THE GOVERNMENT DECLINED TO DISCLOSE IT TO THE PETITIONER. 
THE STATEMENTS IN TEXT ARE TAKEN FROM THE DESCRIPTION OF THAT REPORT IN
THE LETTER OF ADVICE FROM THE DEPARTMENT OF JUSTICE, RECOMMENDING
DENIAL OF THE PETITIONER'S CLAIM. 

/4/  BRIEF FOR THE UNITED STATES 12. 

/5/  "WE DO NOT HERE SEEK TO SUPPORT THE DENIAL OF PETITIONER'S
CLAIM ON THE GROUND OF INSINCERITY . . . "  ID., AT 33. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING.     I WOULD REVERSE THIS JUDGMENT
OF CONVICTION AND SET THE PETITIONER FREE. 

IN SICURELLA V. UNITED STATES, 348 U.S. 385, /1/  THE WARS THAT THE
APPLICANT WOULD FIGHT WERE NOT "CARNAL" BUT THOSE "IN DEFENSE OF
KINGDOM INTERESTS."  ID., AT 389.  SINCE IT WAS IMPOSSIBLE TO DETERMINE
ON EXACTLY WHICH GROUNDS THE APPEAL BOARD HAD BASED ITS DECISION, WE
REVERSED THE DECISION SUSTAINING THE JUDGMENT OF CONVICTION.  WE SAID:
"IT IS DIFFICULT FOR US TO BELIEVE THAT THE CONGRESS HAD IN MIND THIS
TYPE OF ACTIVITY WHEN IT SAID THE THRUST OF CONSCIENTIOUS OBJECTION
MUST GO TO 'PARTICIPATION IN WAR IN ANY FORM.'"  ID., AT 390. 

IN THE PRESENT CASE THERE IS NO LINE BETWEEN "CARNAL" WAR AND
"SPIRITUAL" OR SYMBOLIC WARS.  THOSE WHO KNOW THE HISTORY OF THE
MEDITERRANEAN LITTORAL KNOW THAT THE JIHAD OF THE MOSLEM WAS A BLOODY
WAR. 

THIS CASE IS VERY CLOSE IN ITS ESSENTIALS TO NEGRE V. LARSEN, 401
U.S. 437, DECIDED MARCH 8, 1971.  THE CHURCH TO WHICH THE REGISTRANT
BELONGED FAVORED "JUST" WARS AND PROVIDED GUILDELINES TO DEFINE THEM. 
THE CHURCH DID NOT OPPOSE THE WAR IN VIETNAM BUT THE REGISTRANT REFUSED
TO COMPLY WITH OR ORDER TO GO TO VIETNAM BECAUSE PARTICIPATING IN THAT
CONFLICT WOULD VIOLATE HIS CONSCIENCE.  THE COURT REFUSED TO GRANT HIM
RELIEF AS A CONSCIENTIOUS OBJECTOR, OVERRULING HIS CONSTITUTIONAL
CLAIM. 

THE CASE OF CLAY IS SOMEWHAT DIFFERENT, THOUGH ANALOGOUS.  WHILE
THERE ARE SOME BITS OF EVIDENCE SHOWING CONSCIENTIOUS OBJECTION TO THE
VIETNAM CONFLICT, THE BASIC OBJECTION WAS BASED ON THE TEACHINGS OF HIS
RELIGION.  HE TESTIFIED THAT HE WAS 

"SINCERE IN EVERY BIT OF WHAT THE HOLY QUR'AN AND THE TEACHINGS OF
THE HONORABLE ELIJAH MUHAMMAD TELL US AND IT IS THAT WE ARE NOT TO
PARTICIPATE IN WARS ON THE SIDE OF NOBODY WHO-- ON THE SIDE OF
NONBELIEVERS, AND THIS IS A CHRISTIAN COUNTRY AND THIS IS NOT A MUSLIM
COUNTRY, AND THE GOVERNMENT AND THE HISTORY AND THE FACTS SHOWS THAT
EVERY MOVE TOWARD THE HONORABLE ELIJAH MUHAMMAD IS MADE TO DISTORT AND
IS MADE TO RIDICULE HIM AND IS MADE TO CONDEMN HIM AND THE GOVERNMENT
HAS ADMITTED THAT THE POLICE OF LOS ANGELES WERE WRONG ABOUT ATTACKING
AND KILLING OUR BROTHERS AND SISTERS AND THEY WERE WRONG IN NEWARK, NEW
JERSEY, AND THEY WERE WRONG IN LOUISIANA, AND THE OUTRIGHT, EVERY DAY
OPPRESSORS AND ENEMIES ARE THE PEOPLE AS A WHOLE, THE WHITES OF THIS
NATION.  SO, WE ARE NOT, ACCORDING TO THE HOLY QUR'AN, TO EVEN AS MUCH
AS AID IN PASSING A CUP OF WATER TO THE-- EVEN A WOUNDED.  I MEAN, THIS
IS IN THE HOLY QUR'AN, AND AS I SAID EARLIER, THIS IS NOT ME TALKING TO
GET THE DRAFT BOARD-- OR TO DODGE NOTHING.  THIS IS THERE BEFORE I WAS
BORNED AND IT WILL BE THERE WHEN I'M DEAD BUT WE BELIEVE IN NOT ONLY
THAT PART OF IT, BUT ALL OF IT." 

AT ANOTHER POINT HE TESTIFIED:  "(THE HOLY QUR'AN DO TEACH US THAT
WE DO NOT TAKE PART OF-- IN ANY PART OF WAR UNLESS DECLARED BY ALLAH
HIMSELF, OR UNLESS IT'S AN ISLAMIC WORLD WAR, OR A HOLY WAR, AND IT
GOES AS FAR-- THE HOLY QUR'AN IS TALKING STILL, AND SAYING WE ARE NOT
TO EVEN AS MUCH AS AID THE INFIDELS OR THE NONBELIEVERS IN ISLAM, EVEN
TO AS MUCH AS HANDING THEM A CUP OF WATER DURING BATTLE." 

"SO, THIS IS THE TEACHINGS OF THE HOLY QUR'AN BEFORE I WAS BORN, AND
THE QUR'AN, WE FOLLOW NOT ONLY THAT PART OF IT, BUT EVERY PART." 

THE KORAN DEFINES JIHAD AS AN INJUNCTIVE TO THE BELIEVERS TO WAR
AGAINST NONBELIEVERS:  /2/ 

     "O YE WHO BELIEVE.  SHALL I GUIDE YOU TO A GAINFUL TRADE WHICH

  WILL SAVE YOU FROM PAINFUL PUNISHMENT?  BELIEVE IN ALLAH AND HIS

APOSTLE AND CARRY ON WARFARE (JIHAD) IN THE PATH OF ALLAH WITH

  YOUR POSSESSIONS AND YOUR PERSONS.  THAT IS BETTER FOR YOU.  IF

  YE HAVE KNOWLEDGE, HE WILL FORGIVE YOUR SINS, AND WILL PLACE YOU

  IN THE GARDENS BENEATH WHICH THE STREAMS FLOW, AND IN FINE HOUSES

  IN THE GARDENS OF EDEN:  THAT IS THE GREAT GAIN."  M. KHADDURI,

  WAR AND PEACE IN THE LAW OF ISLAM 55-56 (1955). 

THE SALE EDITION OF THE KORAN, WHICH FIRST APPEARED IN ENGLAND IN
1734, GIVES THE FOLLOWING TRANSLATION AT 410-411 (9TH ED. 1923): 

"THUS GOD PROPOUNDETH UNTO MEN THEIR EXAMPLES.  WHEN YE ENCOUNTER
THE UNBELIEVERS, STRIKE OFF THEIR HEADS, UNTIL YE HAVE MADE A GREAT
SLAUGHTER AMONG THEM; AND BIND THEM IN BONDS; AND EITHER GIVEN THEM A
FREE DISMISSION AFTERWARDS, OR EXACT A RANSOM; UNTIL THE WAR SHALL HAVE
LAID DOWN ITS ARMS.  THIS SHALL YE DO.  VERILY IF GOD PLEASED HE COULD
TAKE VENGEANCE ON THEM, WITHOUT YOUR ASSISTANCE; BUT HE COMMANDETH YOU
TO FIGHT HIS BATTLES, THAT HE MAY PROVE THE ONE OF YOU BY THE OTHER. 
AND AS TO THOSE WHO FIGHT IN DEFENCE OF GOD'S TRUE RELIGION, GOD WILL
NOT SUFFER THEIR WORKS TO PERISH:  HE WILL GUIDE THEM, AND WILL DISPOSE
THEIR HEART ARIGHT; AND HE WILL LEAD THEM INTO PARADISE, OF WHICH HE
HATH TOLD THEM.  O TRUE BELIEVERS, IF YE ASSIST GOD, BY FIGHTING FOR
HIS RELIGION, HE WILL ASSIST YOU AGAINST YOUR ENEMIES; AND WILL SET
YOUR FEET FAST . . . " 

WAR IS NOT THE EXCLUSIVE TYPE OF JIHAD; THERE IS ACTION BY THE
BELIEVER'S HEART, BY HIS TONGUE, BY HIS HANDS, AS WELL AS BY THE
SWORD.  WAR AND PEACE IN THE LAW OF ISLAM 56.  AS RESPECTS THE MILITARY
ASPECTS IT IS WRITTEN: 

"THE JIHAD, IN OTHER WORDS, IS A SANCTION AGAINST POLYTHEISM AND
MUST BE SUFFERED BY ALL NON-MUSLIMS WHO REJECT ISLAM, OR, IN THE CASE
OF THE DHIMMIS (SCRIPTUARIES), REFUSE TO PAY THE POLL TAX.  THE JIHAD,
THEREFORE, MAY BE DEFINED AS THE LITIGATION BETWEEN ISLAM AND
POLYTHEISM; IT IS ALSO A FORM OF PUNISHMENT TO BE INFLICTED UPON
ISLAM'S ENEMIES AND THE RENEGADES FROM THE FAITH.  THUS IN ISLAM, AS IN
WESTERN CHRISTENDOM, THE JIHAD IS THE BELLUM JUSTUM."  ID., AT 59. 

THE JIHAD IS THE MOSLEM'S COUNTERPART OF THE "JUST" WAR AS IT HAD
BEEN KNOWN IN THE WEST.  /3/  NEITHER CLAY NOR NEGRE SHOULD BE SUBJECT
TO PUNISHMENT BECAUSE HE WILL NOT RENOUNCE THE "TRUTH" OF THE TEACHING
OF HIS RESPECTIVE CHURCH THAT WARS INDEED MAY EXIST WHICH ARE JUST WARS
IN WHICH A MOSLEM OR CATHOLIC HAS A RESPECTIVE DUTY TO PARTICIPATE. 

WHAT CLAY'S TESTIMONY ADDS UP TO IS THAT HE BELIEVES ONLY IN WAR AS
SANCTIONED BY THE KORAN, THAT IS TO SAY, A RELIGIOUS WAR AGAINST
NONBELIEVERS.  ALL OTHER WARS ARE UNJUST. 

THAT IS A MATTER OF BELIEF, OF CONSCIENCE, OF RELIGIOUS PRINCIPLE. 
BOTH CLAY AND NEGRE WERE "BY REASON OF RELIGIOUS TRAINING AND BELIEF"
CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR OF THE CHARACTER
PROSCRIBED BY THEIR RESPECTIVE RELIGIONS.  THAT BELIEF IS A MATTER OF
CONSCIENCE PROTECTED BY THE FIRST AMENDMENT WHICH CONGRESS HAS NO POWER
TO QUALIFY OR DILUTE AS IT DID IN SEC. 6(J) OF THE MILITARY SELECTIVE
SERVICE ACT OF 1967, 50 U.S.C. APP. 456(J) (1964 ED., SUPP V) WHEN IT
RESTRICTED THE EXEMPTION TO THOSE "CONSCIENTIOUSLY OPPOSED TO
PARTICIPATION IN WAR IN ANY FORM."  FOR THE REASONS I STATED IN NEGRE
AND IN GILLETTE V. UNITED STATES, 401 U.S. 437, 463 AND 470, THAT
CONSTRUCTION PUTS CLAY IN A CLASS HONORED BY THE FIRST AMENDMENT, EVEN
THOUGH THOSE SCHOOLED IN A DIFFERENT CONCEPTION OF "JUST" WARS MAY FIND
IT QUITE IRRATIONAL. 

I WOULD REVERSE THE JUDGMENT BELOW. 

/1/  AS TO THE COURT'S ANALYSIS OF SICURELLA V. UNITED STATES, 348
U.S. 385, AND ITS APPLICATION OF STROMBERG V. CALIFORNIA, 283 U.S. 359,
LITTLE NEED BE SAID.  THE COURT IS, OF COURSE, QUITE ACCURATE IF
OPPOSITION TO "WAR IN ANY FORM" AS EXPLAINED IN GILLETTE V. UNITED
STATES, AND NEGRE V. LARSEN, 401 U.S. 437, IS THE LAW.  BUT IN MY VIEW
THE RULING IN GILLETTE AND NEGRE WAS UNCONSTITUTIONAL.  HENCE OF THE
THREE POSSIBLE GROUNDS ON WHICH THE BOARD DENIED CONSCIENTIOUS OBJECTOR
STATUS, NONE WAS VALID. 

/2/  KORAN 61:10-13. 

"WAR, THEN, IS HERE AN INTEGRAL PART OF THE LEGAL SYSTEM; FOR IN
ACCORDANCE WITH THE DOCTRINE OF THE JIHAD, WHICH IS RECOGNIZED AS 'THE
PEAK OF RELIGION,' THE ISLAMIC COMMONWEALTH MUST BE EXPANDING
RELENTLESSLY, LIKE A CARAVAN CONTINUOUSLY ON THE MOVE, UNTIL IT BECOMES
COTERMINOUS WITH HUMANITY, AT WHICH TIME WAR WILL HAVE BEEN TRANSPOSED
INTO UNIVERSAL PEACE."  A. BOZEMAN, THE FUTURE LAW IN A MULTICULTURAL
WORLD 81-82 (1971). 

/3/  THE LAST ATTEMPT TO USE THE JIHAD AS A SIGNIFICANT FORCE WAS
MADE IN 1914 BY THE OTTOMAN SULTAN; BUT IT FAILED AND THE JIHAD HAS
FALLEN IN DISUSE.  SEE 1 A.TOYNEBEE, SURVEY OF INTERNATIONAL AFFAIRS,
1925, P. 43 ET SEQ. (1927); 8 ENCYCLOPAEDIA OF THE SOCIAL SCIENCES 401
403 (1932). 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT ON THE FOLLOWING GROUND.  THE DEPARTMENT OF
JUSTICE ADVICE LETTER WAS AT LEAST SUSCEPTIBLE OF THE READING THAT
PETITIONER'S PROOF OF SINCERITY WAS INSUFFICIENT AS A MATTER OF LAW
BECAUSE HIS CONSCIENTIOUS OBJECTOR CLAIM HAD NOT BEEN TIMELY ASSERTED. 
THIS WOULD HAVE BEEN ERRONEOUS ADVICE HAD THE DEPARTMENT'S LETTER BEEN
SO READ.  SINCE THE APPEALS BOARD MIGHT HAVE ACTED ON SUCH AN
INTERPRETATION OF THE LETTER, REVERSAL IS REQUIRED UNDER SICURELLA V.
UNITED STATES, 348 U.S. 385 (1955). 

CHAUNCEY ESKRIDGE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE JACK GREENBERG, JAMES M. NABRIT III, JONATHAN SHAPIRO, AND
ELIZABETH B. DUBOIS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON AND
BEATRICE ROSENBERG. 
..END :





HUNTER V. TENNESSEE, 403 U.S. 711 


       HUNTER V. TENNESSEE

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           TENNESSEE

        NO. 5085.  DECIDED JUNE 28.  1971  /1/ 


FOLLOWING THE DECISION IN WITHERSPOON V. ILLINOIS, 391 U.S. 510,
PETITIONERS SOUGHT TO SUPPLEMENT THEIR BILLS OF EXCEPTIONS TO RAISE
ISSUES THEREUNDER IN THEIR PENDING APPEALS FROM CONVICTIONS FOR RAPE IN
WHICH THEY WERE SENTENCED TO DEATH, BUT WERE PRECLUDED BY TIME
LIMITATIONS OF THE TENNESSEE CODE.  THE STATE SUPREME COURT AFFIRMED
THEIR CONVICTIONS AND SENTENCES WITHOUT CONSIDERING WITHERSPOON'S
POSSIBLE EFFECT.  THE TIME-LIMITATION PROVISION WAS LATER AMENDED,
WHILE PETITIONS FOR CERTIORARI WERE PENDING HERE, AND PETITIONERS
SHOULD BE AFFORDED AN OPPORTUNITY TO APPLY TO THE STATE SUPREME COURT
FOR LEAVE TO SUPPLEMENT THEIR BILLS OF EXCEPTIONS UNDER THE NEW
STATUTE. 

CERTIORARI GRANTED; 222 TENN. 672, 400 S.W.2D 1, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITIONS
FOR WRITS OF CERTIORARI ARE GRANTED. 

AFTER A JOINT TRIAL IN THE STATE COURTS OF TENNESSEE, PETITIONERS
WERE CONVICTED OF RAPE AND SENTENCED TO DEATH.  WHILE THEIR APPEALS
WERE PENDING IN THE TENNESSEE SUPREME COURT, THIS COURT ANNOUNCED ITS
DECISION IN WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968).  PETITIONERS
SOUGHT TO SUPPLEMENT THEIR BILLS OF EXCEPTIONS TO RAISE ISSUES UNDER
THE DECISION, BUT THEY WERE PRECLUDED FROM DOING SO BY THE PROVISIONS
OF FORMER TENNESSEE CODE ANNOTATED SEC. 27-111 (1955), WHICH AS IT THEN
STOOD PROHIBITED THE FILING OF BILLS OF EXCEPTIONS MORE THAN 90 DAYS
AFTER JUDGMENT.  THE TENNESSEE SUPREME COURT THEREFORE AFFIRMED
PETITIONERS' CONVICTIONS AND SENTENCES WITHOUT CONSIDERING THE POSSIBLE
EFFECT OF WITHERSPOON.  222 TENN. 672, 440 S.W.2D 1 (1969).  WHILE THE
PETITIONS FOR CERTIORARI WERE PENDING IN THIS COURT, THE TENNESSEE
LEGISLATURE AMENDED SEC. 27-111 TO AUTHORIZE THE STATE APPELLATE COURTS
TO ORDER THE FILING OF BILLS OF EXCEPTIONS IN CRIMINAL CASES AT ANY
TIME, FOR GOOD CAUSE SHOWN.  TENN. CODE ANN. SEC. 27-111 (SUPP. 1970). 
WITH MATTERS IN THIS POSTURE, WE BELIEVE THAT SOUND JUDICIAL
ADMINISTRATION REQUIRES US TO VACATE THE JUDGMENTS BELOW AND REMAND THE
CASES TO THE TENNESSEE SUPREME COURT SO AS TO AFFORD PETITIONERS AN
OPPORTUNITY TO APPLY TO THAT COURT UNDER THE NEW TENNESSEE STATUTE FOR
LEAVE TO SUPPLEMENT THEIR BILLS OF EXCEPTIONS.  IN SO DOING WE, OF
COURSE, INTIMATE NO VIEW ON THE MERITS OF PETITIONERS' CONTENTIONS OR
AS TO THE APPLICABILITY OF THE NEW TENNESSEE STATUTE TO THESE CASES. 

              IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 5098, HARRIS V. TENNESSEE; NO. 5101, HOUSTON
ET AL. V. TENNESSEE, AND NO. 5103, HUNTER ET AL. V. TENNESSEE, ALSO ON
PETITION FOR WRIT OF CERTIORARI TO THE SAME COURT. 

MR. JUSTICE BLACK DISSENTS. 
..END :













BIVENS V. SIX UNKNOWN FED. NARCOTICS AGENTS, 403 U.S. 388 


       BIVENS V. SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF

           NARCOTICS

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 301.  ARGUED JANUARY 12, 1971-- DECIDED JUNE 21, 1971 


PETITIONER'S COMPLAINT ALLEGED THAT RESPONDENT AGENTS OF THE FEDERAL
BUREAU OF NARCOTICS, ACTING UNDER COLOR OF FEDERAL AUTHORITY, MADE A
WARRANTLESS ENTRY OF HIS APARTMENT, SEARCHED THE APARTMENT, AND
ARRESTED HIM ON NARCOTICS CHARGES.  ALL OF THE ACTS WERE ALLEGED TO
HAVE BEEN DONE WITHOUT PROBABLE CAUSE.  PETITIONER'S SUIT TO RECOVER
DAMAGES FROM THE AGENTS WAS DISMISSED BY THE DISTRICT COURT ON THE
ALTERNATIVE GROUNDS (1) THAT IT FAILED TO STATE A FEDERAL CAUSE OF
ACTION AND (2) THAT RESPONDENTS WERE IMMUNE FROM SUIT BY VIRTUE OF
THEIR OFFICIAL POSITION.  THE COURT OF APPEALS AFFIRMED ON THE FIRST
GROUND ALONE.  HELD: 

1.  PETITIONER'S COMPLAINT STATES A FEDERAL CAUSE OF ACTION UNDER
THE FOURTH AMENDMENT FOR WHICH DAMAGES ARE RECOVERABLE UPON PROOF OF
INJURIES RESULTING FROM THE FEDERAL AGENTS' VIOLATION OF THAT
AMENDMENT.  PP. 390-397. 

2.  THE COURT DOES NOT REACH THE IMMUNITY QUESTION, WHICH WAS NOT
PASSED ON BY THE COURT OF APPEALS.  PP. 397-398. 

409 F.2D 718, REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
STEWART, WHITE, AND MARSHALL, JJ., JOINED.  HARLAN, J., FILED AN
OPINION CONCURRING IN THE JUDGMENT, POST, P. 398.  BURGER, C. J., POST,
P. 411, BLACK, J., POST, P. 427, AND BLACKMUN, J., POST, P. 430, FILED
DISSENTING OPINIONS. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE FOURTH AMENDMENT PROVIDES THAT: 

     "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES,

  PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES,

SHALL NOT BE VIOLATED . . . " 

IN BELL V. HOOD, 327 U.S. 678 (1946), WE RESERVED THE QUESTION
WHETHER VIOLATION OF THAT COMMAND BY A FEDERAL AGENT ACTING UNDER COLOR
OF HIS AUTHORITY GIVES RISE TO A CAUSE OF ACTION FOR DAMAGES CONSEQUENT
UPON HIS UNCONSTITUTIONAL CONDUCT.  TODAY WE HOLD THAT IT DOES. 

THIS CASE HAS ITS ORIGIN IN AN ARREST AND SEARCH CARRIED OUT ON THE
MORNING OF NOVEMBER 26, 1965.  PETITIONER'S COMPLAINT ALLEGED THAT ON
THAT DAY RESPONDENTS, AGENTS OF THE FEDERAL BUREAU OF NARCOTICS ACTING
UNDER CLAIM OF FEDERAL AUTHORITY, ENTERED HIS APARTMENT AND ARRESTED
HIM FOR ALLEGED NARCOTICS VIOLATIONS.  THE AGENTS MANACLED PETITIONER
IN FRONT OF HIS WIFE AND CHILDREN, AND THREATENED TO ARREST THE ENTIRE
FAMILY.  THEY SEARCHED THE APARTMENTFROM STEM TO STERN.  THEREAFTER,
PETITIONER WAS TAKEN TO THE FEDERAL COURTHOUSE IN BROOKLYN, WHERE HE
WAS INTERROGATED, AND SUBJECTED TO A VISUAL STRIP SEARCH. 

ON JULY 7, 1967, PETITIONER BROUGHT SUIT IN FEDERAL DISTRICT COURT. 
IN ADDITION TO THE ALLEGATIONS ABOVE, HIS COMPLAINT ASSERTED THAT THE
ARREST AND SEARCH WERE EFFECTED WITHOUT A WARRANT, AND THAT
UNREASONABLE FORCE WAS EMPLOYED IN MAKING THE ARREST; FAIRLY READ, IT
ALLEGES AS WELL THAT THE ARREST WAS MADE WITHOUT PROBABLE CAUSE.  /1/
PETITIONER CLAIMED TO HAVE SUFFERED GREAT HUMILIATION, EMBARRASSMENT,
AND MENTAL SUFFERING AS A RESULT OF THE AGENTS' UNLAWFUL CONDUCT, AND
SOUGHT $15,000 DAMAGES FROM EACH OF THEM.  THE DISTRICT COURT, ON
RESPONDENTS' MOTION, DISMISSED THE COMPLAINT ON THE GROUND, INTER ALIA,
THAT IT FAILED TO STATE A CAUSE OF ACTION.  /2/  276 F.SUPP.  12 (EDNY
1967).  THE COURT OF APPEALS, ONE JUDGE CONCURRING SPECIALLY, /3/
AFFIRMED ON THAT BASIS.  409 F.2D 718 (CA2 1969).  WE GRANTED
CERTIORARI.  399 U.S. 905 (1970).  WE REVERSE. 

        I 

RESPONDENTS DO NOT ARGUE THAT PETITIONER SHOULD BE ENTIRELY WITHOUT
REMEDY FOR AN UNCONSTITUTIONAL INVASION OF HIS RIGHTS BY FEDERAL
AGENTS.  IN RESPONDENTS' VIEW, HOWEVER, THE RIGHTS THAT PETITIONER
ASSERTS-- PRIMARILY RIGHTS OF PRIVACY-- ARE CREATIONS OF STATE AND NOT
OF FEDERAL LAW.  ACCORDINGLY, THEY ARGUE, PETITIONER MAY OBTAIN MONEY
DAMAGES TO REDRESS INVASION OF THESE RIGHTS ONLY BY AN ACTION IN TORT,
UNDER STATE LAW, IN THE STATE COURTS.  IN THIS SCHEME THE FOURTH
AMENDMENT WOULD SERVE MERELY TO LIMIT THE EXTENT TO WHICH THE AGENTS
COULD DEFEND THE STATE LAW TORT SUIT BY ASSERTING THAT THEIR ACTIONS
WERE A VALID EXERCISE OF FEDERAL POWER:  IF THE AGENTS WERE SHOWN TO
HAVE VIOLATED THE FOURTH AMENDMENT, SUCH A DEFENSE WOULD BE LOST TO
THEM AND THEY WOULD STAND BEFORE THE STATE LAW MERELY AS PRIVATE
INDIVIDUALS.  CANDIDLY ADMITTING THAT IT IS THE POLICY OF THE
DEPARTMENT OF JUSTICE TO REMOVE ALL SUCH SUITS FROM THE STATE TO THE
FEDERAL COURTS FOR DECISION, /4/  RESPONDENTS NEVERTHELESS URGE THAT WE
UPHOLD DISMISSAL OF PETITIONER'S COMPLAINT IN FEDERAL COURT, AND REMIT
HIM TO FILING AN ACTION IN THE STATE COURTS IN ORDER THAT THE CASE MAY
PROPERLY BE REMOVED TO THE FEDERAL COURT FOR DECISION ON THE BASIS OF
STATE LAW. 

WE THINK THAT RESPONDENTS' THESIS RESTS UPON AN UNDULY RESTRICTIVE
VIEW OF THE FOURTH AMENDMENT'S PROTECTION AGAINST UNREASONABLE SEARCHES
AND SEIZURES BY FEDERAL AGENTS, A VIEW THAT HAS CONSISTENTLY BEEN
REJECTED BY THIS COURT.  RESPONDENTS SEEK TO TREAT THE RELATIONSHIP
BETWEEN A CITIZEN AND A FEDERAL AGENT UNCONSTITUTIONALLY EXERCISING HIS
AUTHORITY AS NO DIFFERENT FROM THE RELATIONSHIP BETWEEN TWO PRIVATE
CITIZENS.  IN SO DOING, THEY IGNORE THE FACT THAT POWER, ONCE GRANTED,
DOES NOT DISAPPEAR LIKE A MAGIC GIFT WHEN IT IS WRONGFULLY USED.  AN
AGENT ACTING-- ALBEIT UNCONSTITUTIONALLY-- IN THE NAME OF THE UNITED
STATES POSSESSES A FAR GREATER CAPACITY FOR HARM THAN AN INDIVIDUAL
TRESPASSER EXERCISING NO AUTHORITY OTHER THAN HIS OWN.  CF. AMOS V.
UNITED STATES, 255 U.S. 313, 317 (1921); UNITED STATES V. CLASSIC, 313
U.S. 299, 326 (1941).  ACCORDINGLY, AS OUR CASES MAKE CLEAR, THE FOURTH
AMENDMENT OPERATES AS A LIMITATION UPON THE EXERCISE OF FEDERAL POWER
REGARDLESS OF WHETHER THE STATE IN WHOSE JURISDICTION THAT POWER IS
EXERCISED WOULD PROHIBIT OR PENALIZE THE IDENTICAL ACT IF ENGAGED IN BY
A PRIVATE CITIZEN.  IT GUARANTEES TO CITIZENS OF THE UNITED STATES THE
ABSOLUTE RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES
CARRIED OUT BY VIRTUE OF FEDERAL AUTHORITY.  AND "WHERE FEDERALLY
PROTECTED RIGHTS HAVE BEEN INVADED, IT HAS BEEN THE RULE FROM THE
BEGINNING THAT COURTS WILL BE ALERT TO ADJUST THEIR REMEDIES SO AS TO
GRANT THE NECESSARY RELIEF."  BELL V. HOOD, 327 U.S.,AT 684 (FOOTNOTE
OMITTED); SEE BEMIS BROS. BAG CO. V. UNITED STATES, 289 U.S. 28, 36
(1933) (CARDOZO, J.); THE WESTERN MAID, 257 U.S. 419, 433 (1922)
(HOLMES, J.). 

FIRST.  OUR CASES HAVE LONG SINCE REJECTED THE NOTION THAT THE
FOURTH AMENDMENT PROSCRIBES ONLY SUCH CONDUCT AS WOULD, IF ENGAGED IN
BY PRIVATE PERSONS, BE CONDEMNED BY STATE LAW.  THUS IN GAMBINO V.
UNITED STATES, 275 U.S. 310 (1927), PETITIONERS WERE CONVICTED OF
CONSPIRACY TO VIOLATE THE NATIONAL PROHIBITION ACT ON THE BASIS OF
EVIDENCE SEIZED BY STATE POLICE OFFICERS INCIDENT TO PETITIONERS'
ARREST BY THOSE OFFICERS SOLELY FOR THE PURPOSE OF ENFORCING FEDERAL
LAW.  ID., AT 314.  NOTWITHSTANDING THE LACK OF PROBABLE CAUSE FOR THE
ARREST, ID., AT 313, IT WOULD HAVE BEEN PERMISSIBLE UNDER STATE LAW IF
EFFECTED BY PRIVATE INDIVIDUALS.  /5/  IT APPEARS, MOREOVER, THAT THE
OFFICERS WERE UNDER DIRECTION FROM THE GOVERNOR TO AID IN THE
ENFORCEMENT OF FEDERAL LAW.  ID., AT 315-317.  ACCORDINGLY, IF THE
FOURTH AMENDMENT REACHED ONLY TO CONDUCT IMPERMISSIBLE UNDER THE LAW OF
THE STATE, THE AMENDMENT WOULD HAVE HAD NO APPLICATION TO THE CASE. 
YET THIS COURT HELD THE FOURTH AMENDMENT APPLICABLE AND REVERSED
PETITIONERS' CONVICTIONS AS HAVING BEEN BASED UPON EVIDENCE OBTAINED
THROUGH AN UNCONSTITUTIONAL SEARCH AND SEIZURE.  SIMILARLY, IN BYARS V.
UNITED STATES, 273 U.S. 28 (1927), THE PETITIONER WAS CONVICTED ON THE
BASIS OF EVIDENCE SEIZED UNDER A WARRANT ISSUED, WITHOUT PROBABLE CAUSE
UNDER THE FOURTH AMENDMENT, BY A STATE COURT JUDGE FOR A STATE LAW
OFFENSE.  AT THE INVITATION OF STATE LAW ENFORCEMENT OFFICERS, A
FEDERAL PROHIBITION AGENT PARTICIPATED IN THE SEARCH.  THIS COURT
EXPLICITLY REFUSED TO INQUIRE WHETHER THE WARRANT WAS "GOOD UNDER THE
STATE LAW . . . SINCE IN NO EVENT COULD IT CONSTITUTE THE BASIS FOR A
FEDERAL SEARCH AND SEIZURE."  ID., AT 29.  /6/  AND OUR RECENT
DECISIONS REGARDING ELECTRONIC SURVEILLANCE HAVE MADE IT CLEAR BEYOND
PERADVENTURE THAT THE FOURTH AMENDMENT IS NOT TIED TO THE NICETIES OF
LOCAL TRESPASS LAWS.  KATZ V. UNITED STATES, 389 U.S. 347 (1967);
BERGER V. NEW YORK, 388 U.S. 41 (1967); SILVERMAN V. UNITED STATES, 365
U.S. 505, 511 (1961).  IN LIGHT OF THESE CASES, RESPONDENTS' ARGUMENT
THAT THE FOURTH AMENDMENT SERVES ONLY AS A LIMITATION ON FEDERAL
DEFENSES TO A STATE LAW CLAIM, AND NOT AS AN INDEPENDENT LIMITATION
UPON THE EXERCISE OF FEDERAL POWER, MUST BE REJECTED. 

SECOND.  THE INTERESTS PROTECTED BY STATE LAWS REGULATING TRESPASS
AND THE INVASION OF PRIVACY, AND THOSE PROTECTED BY THE FOURTH
AMENDMENT'S GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES, MAY
BE INCONSISTENT OR EVEN HOSTILE.  THUS, WE MAY BAR THE DOOR AGAINST AN
UNWELCOME PRIVATE INTRUDER, OR CALL THE POLICE IF HE PERSISTS IN
SEEKING ENTRANCE.  THE AVAILABILITY OF SUCH ALTERNATIVE MEANS FOR THE
PROTECTION OF PRIVACY MAY LEAD THE STATE TO RESTRICT IMPOSITION OF
LIABILITY FOR ANY CONSEQUENT TRESPASS.  A PRIVATE CITIZEN, ASSERTING NO
AUTHORITY OTHER THAN HIS OWN, WILL NOT NORMALLY BE LIABLE IN TRESPASS
IF HE DEMANDS, AND IS GRANTED, ADMISSION TO ANOTHER'S HOUSE.  SEE W.
PROSSER, THE LAW OF TORTS SEC. 18, PP. 109-110 (3D ED. 1964); 1
F.HARPER & F.JAMES, THE LAW OF TORTS 1.11 (1956).  BUT ONE WHO DEMANDS
ADMISSION UNDER A CLAIM OF FEDERAL AUTHORITY STANDS IN A FAR DIFFERENT
POSITION.  CF. AMOS V. UNITED STATES, 255 U.S. 313, 317 (1921).  THE
MERE INVOCATION OF FEDERAL POWER BY A FEDERAL LAW ENFORCEMENT OFFICIAL
WILL NORMALLY RENDER FUTILE ANY ATTEMPT TO RESIST AN UNLAWFUL ENTRY OR
ARREST BY RESORT TO THE LOCAL POLICE; AND A CLAIM OF AUTHORITY TO ENTER
IS LIKELY TO UNLOCK THE DOOR AS WELL.  SEE WEEKS V. UNITED STATES, 232
U.S. 383, 386 (1914); AMOS V. UNITED STATES, SUPRA.  /7/  "IN SUCH
CASES THERE IS NO SAFETY FOR THE CITIZEN, EXCEPT IN THE PROTECTION OF
THE JUDICIAL TRIBUNALS, FOR RIGHTS WHICH HAVE BEEN INVADED BY THE
OFFICERS OF THE GOVERNMENT, PROFESSING TO ACT IN ITS NAME.  THERE
REMAINS TO HIM BUT THE ALTERNATIVE OF RESISTANCE, WHICH MAY AMOUNT TO
CRIME."  UNITED STATES V. LEE, 106 U.S. 196, 219 (1882).  /8/  NOR IS
IT ADEQUATE TO ANSWER THAT STATE LAW MAY TAKE INTO ACCOUNT THE
DIFFERENT STATUS OF ONE CLOTHED WITH THE AUTHORITY OF THE FEDERAL
GOVERNMENT.  FOR JUST AS STATE LAW MAY NOT AUTHORIZE FEDERAL AGENTS TO
VIOLATE THE FOURTH AMENDMENT, BYARS V. UNITED STATES, SUPRA; WEEKS V.
UNITED STATES, SUPRA; IN RE AYERS, 123 U.S. 443, 507 (1887), NEITHER
MAY STATE LAW UNDERTAKE TO LIMIT THE EXTENT TO WHICH FEDERAL AUTHORITY
CAN BE EXERCISED.  IN RE NEAGLE, 135 U.S. 1 (1890).  THE INEVITABLE
CONSEQUENCE OF THIS DUAL LIMITATION ON STATE POWER IS THAT THE FEDERAL
QUESTION BECOMES NOT MERELY A POSSIBLE DEFENSE TO THE STATE LAW ACTION,
BUT AN INDEPENDENT CLAIM BOTH NECESSARY AND SUFFICIENT TO MAKE OUT THE
PLAINTIFF'S CAUSE OF ACTION.  CF. BOILERMAKERS V. HARDEMAN, 401 U.S.
233, 241 (1971). 

THIRD.  THAT DAMAGES MAY BE OBTAINED FOR INJURIES CONSEQUENT UPON A
VIOLATION OF THE FOURTH AMENDMENT BY FEDERAL OFFICIALS SHOULD HARDLY
SEEM A SURPRISING PROPOSITION.  HISTORICALLY, DAMAGES HAVE BEEN
REGARDED AS THE ORDINARY REMEDY FOR AN INVASION OF PERSONAL INTERESTS
IN LIBERTY.  SEE NIXON V. CONDON, 286 U.S. 73 (1932); NIXON V. HERNDON,
273 U.S. 536, 540 (1927; SWAFFORD V. TEMPLETON, 185 U.S. 487 (1902);
WILEY V. SINKLER, 179 U.S. 58 (1900); L. LANDYNSKI, SEARCH AND SEIZURE
AND THE SUPREME COURT 28 ET SEQ. (1966); N. LASSON, HISTORY AND
DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION
43 ET SEQ. (1937); KATZ, THE JURISPRUDENCE OF REMEDIES : CONSTITUTIONAL
LEGALITY AND THE LAW OF TORTS IN BELL V. HOOD, 117 U.PA.L.REV.  1, 8-33
(1968); CF. WEST V. CABELL, 153 U.S. 78 (1894); LAMMON V. FEUSIER, 111
U.S. 17 (1884).  OF COURSE, THE FOURTH AMENDMENT DOES NOT IN SO MANY
WORDS PROVIDE FOR ITS ENFORCEMENT BY AN AWARD OF MONEY DAMAGES FOR THE
CONSEQUENCES OF ITS VIOLATION.  BUT "IT IS . . . WELL SETTLED THAT
WHERE LEGAL RIGHTS HAVE BEEN INVADED, AND A FEDERAL STATUTE PROVIDES
FOR A GENERAL RIGHT TO SUE FOR SUCH INVASION, FEDERAL COURTS MAY USE
ANY AVAILABLE REMEDY TO MAKE GOOD THE WRONG DONE."  BELL V. HOOD, 327
U.S.,AT 684 (FOOTNOTE OMITTED).  THE PRESENT CASE INVOLVES NO SPECIAL
FACTORS COUNSELLING HESITATION IN THE ABSENCE OF AFFIRMATIVE ACTION BY
CONGRESS.  WE ARE NOT DEALING WITH A QUESTION OF "FEDERAL FISCAL
POLICY," AS IN UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, 311
(1947).  IN THAT CASE WE REFUSED TO INFER FROM THE GOVERNMENT-SOLDIER
RELATIONSHIP THAT THE UNITED STATES COULD RECOVER DAMAGES FROM ONE WHO
NEGLIGENTLY INJURED A SOLDIER AND THEREBY CAUSED THE GOVERNMENT TO PAY
HIS MEDICAL EXPENSES AND LOSE HIS SERVICES DURING THE COURSE OF HIS
HOSPITALIZATION.  NOTING THAT CONGRESS WAS NORMALLY QUITE SOLICITOUS
WHERE THE FEDERAL PURSE WAS INVOLVED, WE POINTED OUT THAT "THE UNITED
STATES (WAS) THE PARTY PLAINTIFF TO THE SUIT.  AND THE UNITED STATES
HAS POWER AT ANY TIME TO CREATE THE LIABILITY."  ID., AT 316; SEE
UNITED STATES V. GILMAN, 347 U.S. 507 (1954).  NOR ARE WE ASKED IN THIS
CASE TO IMPOSE LIABILITY UPON A CONGRESSIONAL EMPLOYEE FOR ACTIONS
CONTRARY TO NO CONSTITUTIONAL PROHIBITION, BUT MERELY SAID TO BE IN
EXCESS OF THE AUTHORITY DELEGATED TO HIM BY THE CONGRESS.  WHEELDIN V.
WHEELER, 373 U.S. 647 (1963).  FINALLY, WE CANNOT ACCEPT RESPONDENTS'
FORMULATION OF THE QUESTION AS WHETHER THE AVAILABILITY OF MONEY
DAMAGES IS NECESSARY TO ENFORCE THE FOURTH AMENDMENT.  FOR WE HAVE HERE
NO EXPLICIT CONGRESSIONAL DECLARATION THAT PERSONS INJURED BYA FEDERAL
OFFICER'S VIOLATION OF THE FOURTH AMENDMENT MAY NOT RECOVER MONEY
DAMAGES FROM THE AGENTS, BUT MUST INSTEAD BE REMITTED TO ANOTHER
REMEDY, EQUALLY EFFECTIVE IN THE VIEW OF CONGRESS.  THE QUESTION IS
MERELY WHETHER PETITIONER, IF HE CAN DEMONSTRATE AN INJURY CONSEQUENT
UPON THE VIOLATION BY FEDERAL AGENTS OF HIS FOURTH AMENDMENT RIGHTS, IS
ENTITLED TO REDRESS HIS INJURY THROUGH A PARTICULAR REMEDIAL MECHANISM
NORMALLY AVAILABLE IN THE FEDERAL COURTS.  CF. J. I. CASE CO. V. BORAK,
377 U.S. 426, 433 (1964); JACOBS V. UNITED STATES, 290 U.S. 13, 16
(1933).  "THE VERY ESSENCE OF CIVIL LIBERTY CERTAINLY CONSISTS IN THE
RIGHT OF EVERY INDIVIDUAL TO CLAIM THE PROTECTION OF THE LAWS, WHENEVER
HE RECEIVES AN INJURY."  MARBURY V. MADISON, 1 CRANCH 137, 163 (1803). 
HAVING CONCLUDED THAT PETITIONER'S COMPLAINT STATES A CAUSE OF ACTION
UNDER THE FOURTH AMENDMENT, SUPRA, AT 390-395, WE HOLD THAT PETITIONER
IS ENTITLED TO RECOVER MONEY DAMAGES FOR ANY INJURIES HE HAS SUFFERED
AS A RESULT OF THE AGENTS' VIOLATION OF THE AMENDMENT.              II 

IN ADDITION TO HOLDING THAT PETITIONER'S COMPLAINT HAD FAILED TO
STATE FACTS MAKING OUT A CAUSE OF ACTION, THE DISTRICT COURT RULED THAT
IN ANY EVENT RESPONDENTS WERE IMMUNE FROM LIABILITY BY VIRTUE OF THEIR
OFFICIAL POSITION.  276 F.SUPP.,AT 15.  THIS QUESTION WAS NOT PASSED
UPON BY THE COURT OF APPEALS, AND ACCORDINGLY WE DO NOT CONSIDER IT
HERE.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
  SO ORDERED. 

/1/  PETITIONER'S COMPLAINT DOES NOT EXPLICITLY STATE THAT THE
AGENTS HAD NO PROBABLE CAUSE FOR HIS ARREST, BUT IT DOES ALLEGE THAT
THE ARREST WAS "DONE UNLAWFULLY, UNREASONABLY AND CONTRARY TO LAW." 
APP. 2.  PETITIONER'S AFFIDAVIT IN SUPPORT OF HIS MOTION FOR SUMMARY
JUDGMENT SWEARS THAT THE SEARCH WAS "WITHOUT CAUSE, CONSENT OR
WARRANT," AND THAT THE ARREST WAS "WITHOUT CAUSE, REASON OR WARRANT." 
APP. 28. 

/2/  THE AGENTS WERE NOT NAMED IN PETITIONER'S COMPLAINT, AND THE
DISTRICT COURT ORDERED THAT THE COMPLAINT BE SERVED UPON "THOSE FEDERAL
AGENTS WHO IT IS INDICATED BY THE RECORDS OF THE UNITED STATES ATTORNEY
PARTICIPATED IN THE NOVEMBER 25, 1965, ARREST OF THE (PETITIONER)." 
APP. 3.  FIVE AGENTS WERE ULTIMATELY SERVED. 

/3/  JUDGE WATERMAN, CONCURRING, EXPRESSED THE THOUGHT THAT "THE
FEDERAL COURTS CAN . . . ENTERTAIN THIS CAUSE OF ACTION IRRESPECTIVE OF
WHETHER A STATUTE EXISTS SPECIFICALLY AUTHORIZING A FEDERAL SUIT
AGAINST FEDERAL OFFICERS FOR DAMAGES" FOR ACTS SUCH AS THOSE ALLEGED. 
IN HIS VIEW, HOWEVER, THE CRITICAL POINT WAS RECOGNITION THAT SOME
CAUSE OF ACTION EXISTED, ALBEIT A STATE-CREATED ONE, AND IN CONSEQUENCE
HE WAS WILLING "AS OF NOW" TO CONCUR IN THE HOLDING OF THE COURT OF
APPEALS.  409 F.2D, AT 726. 

/4/  "(SINCE IT IS THE PRESENT POLICY OF THE DEPARTMENT OF JUSTICE
TO REMOVE TO THE FEDERAL COURTS ALL SUITS IN STATE COURTS AGAINST
FEDERAL OFFICERS FOR TRESPASS OR FALSE IMPRISONMENT, A CLAIM FOR
RELIEF, WHETHER BASED ON STATE COMMON LAW OR DIRECTLY ON THE FOURTH
AMENDMENT, WILL ULTIMATELY BE HEARD IN A FEDERAL COURT."  BRIEF FOR
RESPONDENTS 13 (CITATIONS OMITTED); SEE 28 U.S.C. 1442(A); WILLINGHAM
V. MORGAN, 395 U.S. 402 (1969).  IN LIGHT OF THIS, IT IS DIFFICULT TO
UNDERSTAND OUR BROTHER BLACKMUN'S COMPLAINT THAT OUR HOLDING TODAY
"OPENS THE DOOR FOR ANOTHER AVALANCHE OF NEW FEDERAL CASES."  POST, AT
430.  IN ESTIMATING THE MAGNITUDE OF ANY SUCH "AVALANCHE," IT IS WORTH
NOTING THAT A SURVEY OF COMPARABLE ACTIONS AGAINST STATE OFFICERS UNDER
42 U.S.C. 1983 FOUND ONLY 53 REPORTED CASES IN 17 YEARS (1951-1967)
THAT SURVIVED A MOTION TO DISMISS.  GINGER & BELL, POLICE MISCONDUCT
LITIGATION-- PLAINTIFF'S REMEDIES, 15 AM.JUR.TRIALS 555, 580-590
(1968).  INCREASING THIS FIGURE BY 900% TO ALLOW FOR INCREASES IN RATE
AND UNREPORTED CASES, EVERY FEDERAL DISTRICT JUDGE COULD EXPECT TO TRY
ONE SUCH CASE EVERY 13 YEARS. 

/5/  NEW YORK AT THAT TIME FOLLOWED THE COMMON-LAW RULE THAT A
PRIVATE PERSON MAY ARREST ANOTHER IF THE LATTER HAS IN FACT COMMITTED A
FELONY, AND THAT IF SUCH IS THE CASE THE PRESENCE OR ABSENCE OF
PROBABLE CAUSE IS IRRELEVANT TO THE LEGALITY OF THE ARREST.  SEE
MCLOUGHLIN V. NEW YORK EDISON CO., 252 N.Y. 202, 169 N.E. 277 (1929);
CF. N.Y. CODE CRIM. PROC. SEC. 183 (1958) FOR CODIFICATION OF THE
RULE.  CONSPIRACY TO COMMIT A FEDERAL CRIME WAS AT THE TIME A FELONY. 
ACT OF MARCH 4, 1909, SEC. 37, 35 STAT. 1096. 

/6/  CONVERSELY, WE HAVE IN SOME INSTANCES REJECTED FOURTH AMENDMENT
CLAIMS DESPITE FACTS DEMONSTRATING THAT FEDERAL AGENTS WERE ACTING IN
VIOLATION OF LOCAL LAW.  MCGUIRE V. UNITED STATES, 273 U.S. 95 (1927)
(TRESPASS AB INITIO); HESTER V. UNITED STATES, 265 U.S. 57 (1924)
("OPEN FIELDS" DOCTRINE); CF. BURDEAU V. MCDOWELL, 256 U.S. 465 (1921)
(POSSESSION OF STOLEN PROPERTY). 

/7/  SIMILARLY, ALTHOUGH THE FOURTH AMENDMENT CONFINES AN OFFICER
EXECUTING A SEARCH WARRANT STRICTLY WITHIN THE BOUNDS SET BY THE
WARRANT, MARRON V. UNITED STATES, 275 U.S. 192, 196 (1927); SEE STANLEY
V. GEORGIA, 394 U.S. 557, 570-572 (1969) (STEWART, J., CONCURRING IN
RESULT), A PRIVATE INDIVIDUAL LAWFULLY IN THE HOME OF ANOTHER WILL NOT
NORMALLY BE LIABLE FOR TRESPASS BEYOND THE BOUNDS OF HIS INVITATION
ABSENT CLEAR NOTICE TO THAT EFFECT.  SEE 1 F.HARPER & F.JAMES, THE LAW
OF TORTS 1.11 (1956). 

/8/  ALTHOUGH NO STATE HAS UNDERTAKEN TO LIMIT THE COMMON-LAW
DOCTRINE THAT ONE MAY USE REASONABLE FORCE TO RESIST AN UNLAWFUL ARREST
BY A PRIVATE PERSON, AT LEAST TWO STATES HAVE OUTLAWED RESISTANCE TO AN
UNLAWFUL ARREST SOUGHT TO BE MADE BY A PERSON KNOWN TO BE AN OFFICER OF
THE LAW.  R.I. GEN. LAWS SEC. 12-7-10 (1969); STATE V. KOONCE, 89
N.J.SUPER.  169, 180-184, 214 A.2D 428, 433-436 (1965). 

MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT. 

MY INITIAL VIEW OF THIS CASE WAS THAT THE COURT OF APPEALS WAS
CORRECT IN DISMISSING THE COMPLAINT, BUT FOR REASONS STATED IN THIS
OPINION I AM NOW PERSUADED TO THE CONTRARY.  ACCORDINGLY, I JOIN IN THE
JUDGMENT OF REVERSAL. 

PETITIONER ALLEGED, IN HIS SUIT IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK, THAT THE DEFENDANTS, FEDERAL AGENTS
ACTING UNDER COLOR OF FEDERAL LAW, SUBJECTED HIM TO A SEARCH AND
SEIZURE CONTRAVENING THE REQUIREMENTS OF THE FOURTH AMENDMENT.  HE
SOUGHT DAMAGES IN THE AMOUNT OF $15,000 FROM EACH OF THE AGENTS. 
FEDERAL JURISDICTION WAS CLAIMED, INTER ALIA, /1/  UNDER 28 U.S.C.
1331(A) WHICH PROVIDES: 

     "THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL

  CIVIL ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM

  OR VALUE OF $10,000 EXCLUSIVE OF INTEREST AND COSTS, AND ARISES

UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES." 

THE DISTRICT COURT DISMISSED THE COMPLAINT FOR LACK OF FEDERAL
JURISDICTION UNDER 28 U.S.C. 1331(A) AND FAILURE TO STATE A CLAIM FOR
WHICH RELIEF MAY BE GRANTED.  276 F.SUPP 12 (EDNY 1967).  ON APPEAL,
THE COURT OF APPEALS CONCLUDED, ON THE BASIS OF THIS COURT'S DECISION
IN BELL V. HOOD, 327 U.S. 678 (1946), THAT PETITIONER'S CLAIM FOR
DAMAGES DID "(ARISE) UNDER THE CONSTITUTION" WITHIN THE MEANING OF 28
U.S.C. 1331(A); BUT THE DISTRICT COURT'S JUDGMENT WAS AFFIRMED ON THE
GROUND THAT THE COMPLAINT FAILED TO STATE A CLAIM FOR WHICH RELIEF CAN
BE GRANTED.  409 F.2D 718 (CA2 1969). 

IN SO CONCLUDING, THA:  (1) THE FRAMERS OF THE FOURTH AMENDMENT DID
NOT APPEAR TO CONTEMPLATE A "WHOLLY NEW FEDERAL CAUSE OF ACTION FOUNDED
DIRECTLY ON THE FOURTH AMENDMENT," ID., AT 721, AND (2) WHILE THE
FEDERAL COURTS HAD POWER UNDER A GENERAL GRANT OF JURISDICTION TO IMPLY
A FEDERAL REMEDY FOR THE ENFORCEMENT OF A CONSTITUTIONAL RIGHT, THEY
SHOULD DO SO ONLY WHEN THE ABSENCE OF ALTERNATIVE REMEDIES RENDERS THE
CONSTITUTIONAL COMMAND A "MERE 'FORM OF WORDS.'"  ID., AT 723.  THE
GOVERNMENT TAKES ESSENTIALLY THE SAME POSITION HERE.  BRIEF FOR
RESPONDENTS 4-5.  AND TWO MEMBERS OF THE COURT ADD THE CONTENTION THAT
WE LACK THE CONSTITUTIONAL POWER TO ACCORD BIVENS A REMEDY FOR DAMAGES
IN THE ABSENCE OF CONGRESSIONAL ACTION CREATING "A FEDERAL CAUSE OF
ACTION FOR DAMAGES FOR AN UNREASONABLE SEARCH IN VIOLATION OF THE
FOURTH AMENDMENT."  OPINION OF MR. JUSTICE BLACK, POST, AT 427; SEE
ALSO OPINION OF THE CHIEF JUSTICE, POST, AT 418, 422. 

FOR THE REASONS SET FORTH BELOW, I AM OF THE OPINION THAT FEDERAL
COURTS DO HAVE THE POWER TO AWARD DAMAGES FOR VIOLATION OF
"CONSTITUTIONALLY PROTECTED INTERESTS" AND I AGREE WITH THE COURT THAT
A TRADITIONAL JUDICIAL REMEDY SUCH AS DAMAGES IS APPROPRIATE TO THE
VINDICATION OF THE PERSONAL INTERESTS PROTECTED BY THE FOURTH
AMENDMENT. 

        I 

I TURN FIRST TO THE CONTENTION THAT THE CONSTITUTIONAL POWER OF
FEDERAL COURTS TO ACCORD BIVENS DAMAGES FOR HIS CLAIM DEPENDS ON THE
PASSAGE OF A STATUTE CREATING A "FEDERAL CAUSE OF ACTION."  ALTHOUGH
THE POINT IS NOT ENTIRELY FREE OF AMBIGUITY, /2/  I DO NOT UNDERSTAND
EITHER THE GOVERNMENT OR MY DISSENTING BROTHERS TO MAINTAIN THAT
BIVENS' CONTENTION THAT HE IS ENTITLED TO BE FREE FROM THE TYPE OF
OFFICIAL CONDUCT PROHIBITED BY THE FOURTH AMENDMENT DEPENDS ON A
DECISION BY THE STATE IN WHICH HE RESIDES TO ACCORD HIM A REMEDY.  SUCH
A POSITION WOULD BE INCOMPATIBLE WITH THE PRESUMED AVAILABILITY OF
FEDERAL EQUITABLE RELIEF, IF A PROPER SHOWING CAN BE MADE IN TERMS OF
THE ORDINARY PRINCIPLES GOVERNING EQUITABLE REMEDIES.  SEE BELL V.
HOOD, 327 U.S. 678, 684 (1946).  HOWEVER BROAD A FEDERAL COURT'S
DISCRETION CONCERNING EQUITABLE REMEDIES, IT IS ABSOLUTELY CLEAR-- AT
LEAST AFTER ERIE R. CO. V. TOMPKINS, 304 U.S. 64 (1938)-- THAT IN A
NONDIVERSITY SUIT A FEDERAL COURT'S POWER TO GRANT EVEN EQUITABLE
RELIEF DEPENDS ON THE PRESENCE OF A SUBSTANTIVE RIGHT DERIVED FROM
FEDERAL LAW.  COMPARE GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 105-107
(1945), WITH HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395 (1946).  SEE ALSO
H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 818
819 (1953). 

THUS THE INTEREST WHICH BIVENS CLAIMS-- TO BE FREE FROM OFFICIAL
CONDUCT IN CONTRAVENTION OF THE FOURTH AMENDMENT-- IS A FEDERALLY
PROTECTED INTEREST.  SEE GENERALLY KATZ, THE JURISPRUDENCE OF REMEDIES:
CONSTITUTIONAL LEGALITY AND THE LAW OF TORTS IN BELL V. HOOD, 117
U.PA.L.REV.  1, 33-34 (1968).  /3/  THEREFORE, THE QUESTION OF JUDICIAL
POWER TO GRANT BIVENS DAMAGES IS NOT A PROBLEM OF THE "SOURCE" OF THE
"RIGHT"; INSTEAD, THE QUESTION IS WHETHER THE POWER TO AUTHORIZE
DAMAGES AS A JUDICIAL REMEDY FOR THE VINDICATION OF A FEDERAL
CONSTITUTIONAL RIGHT IS PLACED BY THE CONSTITUTION ITSELF EXCLUSIVELY
IN CONGRESS' HANDS. 

        II 

THE CONTENTION THAT THE FEDERAL COURTS ARE POWERLESS TO ACCORD A
LITIGANT DAMAGES FOR A CLAIMED INVASION OF HIS FEDERAL CONSTITUTIONAL
RIGHTS UNTIL CONGRESS EXPLICITLY AUTHORIZES THE REMEDY CANNOT REST ON
THE NOTION THAT THE DECISION TO GRANT COMPENSATORY RELIEF INVOLVES A
RESOLUTION OF POLICY CONSIDERATIONS NOT SUSCEPTIBLE OF JUDICIAL
DISCERNMENT.  THUS, IN SUITS FOR DAMAGES BASED ON VIOLATIONS OF FEDERAL
STATUTES LACKING ANY EXPRESS AUTHORIZATION OF A DAMAGE REMEDY, THIS
COURT HAS AUTHORIZED SUCH RELIEF WHERE, IN ITS VIEW, DAMAGES ARE
NECESSARY TO EFFECTUATE THE CONGRESSIONAL POLICY UNDERPINNING THE
SUBSTANTIVE PROVISIONS OF THE STATUTE.  J. I. CASE CO. V. BORAK, 377
U.S. 426 (1964); TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN, 323 U.S. 210, 213 (1944).  CF. WYANDOTTE TRANSPORTATION CO.
V. UNITED STATES, 389 U.S. 191, 201-204 (1967).  /4/ 

IF IT IS NOT THE NATURE OF THE REMEDY WHICH IS THOUGHT TO RENDER A
JUDGMENT AS TO THE APPROPRIATENESS OF DAMAGES INHERENTLY "LEGISLATIVE,"
THEN IT MUST BE THE NATURE OF THE LEGAL INTEREST OFFERED AS AN
OCCASION FOR INVOKING OTHERWISE APPROPRIATE JUDICIAL RELIEF.  BUT I DO
NOT THINK THAT THE FACT THAT THE INTEREST IS PROTECTED BY THE
CONSTITUTION RATHER THAN STATUTE OR COMMON LAW JUSTIFIES THE ASSERTION
THAT FEDERAL COURTS ARE POWERLESS TO GRANT DAMAGES IN THE ABSENCE OF
EXPLICIT CONGRESSIONAL ACTION AUTHORIZING THE REMEDY.  INITIALLY, I
NOTE THAT IT WOULD BE AT LEAST ANOMALOUS TO CONCLUDE THAT THE FEDERAL
JUDICIARY-- WHILE COMPETENT TO CHOOSE AMONG THE RANGE OF TRADITIONAL
JUDICIAL REMEDIES TO IMPLEMENT STATUTORY AND COMMON-LAW POLICIES, AND
EVEN TO GENERATE SUBSTANTIVE RULES GOVERNING PRIMARY BEHAVIOR IN
FURTHERANCE OF BROADLY FORMULATED POLICIES ARTICULATED BY STATUTE OR
CONSTITUTION, SEE TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448
(1957); UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, 304-311
(1947); CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363 (1943)-- IS
POWERLESS TO ACCORD A DAMAGES REMEDY TO VINDICATE SOCIAL POLICIES
WHICH, BY VIRTUE OF THEIR INCLUSION IN THE CONSTITUTION, ARE AIMED
PREDOMINANTLY AT RESTRAINING THE GOVERNMENT AS AN INSTRUMENT OF THE
POPULAR WILL. 

MORE IMPORTANTLY, THE PRESUMED AVAILABILITY OF FEDERAL EQUITABLE
RELIEF AGAINST THREATENED INVASIONS OF CONSTITUTIONAL INTERESTS APPEARS
ENTIRELY TO NEGATE THE CONTENTION THAT THE STATUS OF AN INTEREST AS
CONSTITUTIONALLY PROTECTED DIVESTS FEDERAL COURTS OF THE POWER TO GRANT
DAMAGES ABSENT EXPRESS CONGRESSIONAL AUTHORIZATION.  CONGRESS PROVIDED
SPECIALLY FOR THE EXERCISE OF EQUITABLE REMEDIAL POWERS BY FEDERAL
COURTS, SEE ACT OF MAY 8, 1792, SEC. 2, 1 STAT. 276; C. WRIGHT, LAW OF
FEDERAL COURTS 257 (2D ED., 1970), IN PART BECAUSE OF THE LIMITED
AVAILABILITY OF EQUITABLE REMEDIES IN STATE COURTS IN THE EARLY DAYS OF
THE REPUBLIC.  SEE GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 104-105
(1945).  AND THIS COURT'S DECISIONS MAKE CLEAR THAT, AT LEAST ABSENT
CONGRESSIONAL RESTRICTIONS, THE SCOPE OF EQUITABLE REMEDIAL DISCRETION
IS TO BE DETERMINED ACCORDING TO THE DISTINCTIVE HISTORICAL TRADITIONS
OF EQUITY AS AN INSTITUTION, HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395
396 (1946); SPRAGUE V. TICONIC NATIONAL BANK, 307 U.S. 161, 165-166
(1939).  THE REACH OF A FEDERAL DISTRICT COURT'S "INHERENT EQUITABLE
POWERS," TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 460 (BURTON,
J., CONCURRING IN RESULT), IS BROAD INDEED, E.G., SWANN V. CHARLOTTE
MECKLENBURG BOARD OF EDUCATION, 401 U.S. 1 (1971); NONETHELESS, THE
FEDERAL JUDICIARY IS NOT EMPOWERED TO GRANT EQUITABLE RELIEF IN THE
ABSENCE OF CONGRESSIONAL ACTION EXTENDING JURISDICTION OVER THE SUBJECT
MATTER OF THE SUIT.  SEE TEXTILE WORKERS V. LINCOLN MILLS, SUPRA, AT
460 (BURTON, J., CONCURRING IN RESULT); KATZ, 117 U.PA.L.REV.,AT 43. 
/5/ 

IF EXPLICIT CONGRESSIONAL AUTHORIZATION IS AN ABSOLUTE PREREQUISITE
TO THE POWER OF A FEDERAL COURT TO ACCORD COMPENSATORY RELIEF
REGARDLESS OF THE NECESSITY OR APPROPRIATENESS OF DAMAGES AS A REMEDY
SIMPLY BECAUSE OF THE STATUS OF A LEGAL INTEREST AS CONSTITUTIONALLY
PROTECTED, THEN IT SEEMS TO ME THAT EXPLICIT CONGRESSIONAL
AUTHORIZATION IS SIMILARLY PREREQUISITE TO THE EXERCISE OF EQUITABLE
REMEDIAL DISCRETION IN FAVOR OF CONSTITUTIONALLY PROTECTED INTERESTS. 
CONVERSELY, IF A GENERAL GRANT OF JURISDICTION TO THE FEDERAL COURTS BY
CONGRESS IS THOUGHT ADEQUATE TO EMPOWER A FEDERAL COURT TO GRANT
EQUITABLE RELIEF FOR ALL AREAS OF SUBJECT-MATTER JURISDICTION
ENUMERATED THEREIN, SEE 28 U.S.C. 1331(A), THEN IT SEEMS TO ME THAT THE
SAME STATUTE IS SUFFICIENT TO EMPOWER A FEDERAL COURT TO GRANT A
TRADITIONAL REMEDY AT LAW.  /6/  OF COURSE, THE SPECIAL HISTORICAL
TRADITIONS GOVERNING THE FEDERAL EQUITY SYSTEM, SEE SPRAGUE V. TICONIC
NATIONAL BANK, 307 U.S. 161 (1939), MIGHT STILL BEAR ON THE COMPARATIVE
APPROPRIATENESS OF GRANTING EQUITABLE RELIEF AS OPPOSED TO MONEY
DAMAGES.  THAT POSSIBILITY, HOWEVER, RELATES, NOT TO WHETHER THE
FEDERAL COURTS HAVE THE POWER TO AFFORD ONE TYPE OF REMEDY AS OPPOSED
TO THE OTHER, BUT RATHER TO THE CRITERIA WHICH SHOULD GOVERN THE
EXERCISE OF OUR POWER.  TO THAT QUESTION, I NOW PASS. 

        III 

THE MAJOR THRUST OF THE GOVERNMENT'S POSITION IS THAT, WHERE
CONGRESS HAS NOT EXPRESSLY AUTHORIZED A PARTICULAR REMEDY, A FEDERAL
COURT SHOULD EXERCISE ITS POWER TO ACCORD A TRADITIONAL FORM OF
JUDICIAL RELIEF AT THE BEHEST OF A LITIGANT, WHO CLAIMS A
CONSTITUTIONALLY PROTECTED INTEREST HAS BEEN INVADED, ONLY WHERE THE
REMEDY IS "ESSENTIAL," OR "INDISPENSABLE FOR VINDICATING CONSTITUTIONAL
RIGHTS."  BRIEF FOR RESPONDENTS 19, 24.  WHILE THIS "ESSENTIALITY" TEST
IS MOST CLEARLY ARTICULATED WITH RESPECT TO DAMAGES REMEDIES,
APPARENTLY THE GOVERNMENT BELIEVES THE SAME TEST EXPLAINS THE EXERCISE
OF EQUITABLE REMEDIAL POWERS.  ID., AT 17-18.  IT IS ARGUED THAT
HISTORICALLY THE COURT HAS RARELY EXERCISED THE POWER TO ACCORD SUCH
RELIEF IN THE ABSENCE OF AN EXPRESS CONGRESSIONAL AUTHORIZATION AND
THAT "(IF CONGRESS HAD THOUGHT THAT FEDERAL OFFICERS SHOULD BE SUBJECT
TO A LAW DIFFERENT THAN STATE LAW, IT WOULD HAVE HAD NO DIFFICULTY IN
SAYING SO, AS IT DID WITH RESPECT TO STATE OFFICERS . . . " ID., AT 20
21; SEE 42 U.S.C. 1983.  ALTHOUGH CONCEDING THAT THE STANDARD OF
DETERMINING WHETHER A DAMAGE REMEDY SHOULD BE UTILIZED TO EFFECTUATE
STATUTORY POLICIES IS ONE OF "NECESSITY" OR "APPROPRIATENESS," SEE J.
I. CASE CO. V. BORAK, 377 U.S. 426, 432 (1964); UNITED STATES V.
STANDARD OIL CO., 332 U.S. 301, 307 (1947), THE GOVERNMENT CONTENDS
THAT QUESTIONS CONCERNING CONGRESSIONAL DISCRETION TO MODIFY JUDICIAL
REMEDIES RELATING TO CONSTITUTIONALLY PROTECTED INTERESTS WARRANT A
MORE STRINGENT CONSTRAINT ON THE EXERCISE OF JUDICIAL POWER WITH
RESPECT TO THIS CLASS OF LEGALLY PROTECTED INTERESTS.  BRIEF FOR
RESPONDENTS 21-22. 

THESE ARGUMENTS FOR A MORE STRINGENT TEST TO GOVERN THE GRANT OF
DAMAGES IN CONSTITUTIONAL CASES /7/  SEEM TO BE ADEQUATELY ANSWERED BY
THE POINT THAT THE JUDICIARY HAS A PARTICULAR RESPONSIBILITY TO ASSURE
THE VINDICATION OF CONSTITUTIONAL INTERESTS SUCH AS THOSE EMBRACED BY
THE FOURTH AMENDMENT.  TO BE SURE, "IT MUST BE REMEMBERED THAT
LEGISLATURES ARE ULTIMATE GUARDIANS OF THE LIBERTIES AND WELFARE OF THE
PEOPLE IN QUITE AS GREAT A DEGREE AS THE COURTS."  MISSOURI, KANSAS &
TEXAS R. CO. V. MAY, 194 U.S. 267, 270 (1904).  BUT IT MUST ALSO BE
RECOGNIZED THAT THE BILL OF RIGHTS IS PARTICULARLY INTENDED TO
VINDICATE THE INTERESTS OF THE INDIVIDUAL IN THE FACE OF THE POPULAR
WILL AS EXPRESSED IN LEGISLATIVE MAJORITIES; AT THE VERY LEAST, IT
STRIKES ME AS NO MORE APPROPRIATE TO AWAIT EXPRESS CONGRESSIONAL
AUTHORIZATION OF TRADITIONAL JUDICIAL RELIEF WITH REGARD TO THESE LEGAL
INTERESTS THAN WITH RESPECT TO INTERESTS PROTECTED BY FEDERAL
STATUTES. 

THE QUESTION THEN, IS, AS I SEE IT, WHETHER COMPENSATORY RELIEF IS
"NECESSARY" OR "APPROPRIATE" TO THE VINDICATION OF THE INTEREST
ASSERTED.  CF. J. I. CASE CO. V. BORAK, SUPRA, AT 432; UNITED STATES V.
STANDARD OIL CO., SUPRA, AT 307; HILL, CONSTITUTIONAL REMEDIES, 69
COL.L.REV.  1109, 1155 (1969); KATZ, 117 U.PA.L.REV.,AT 72.  IN
RESOLVING THAT QUESTION, IT SEEMS TO ME THAT THE RANGE OF POLICY
CONSIDERATIONS WE MAY TAKE INTO ACCOUNT IS AT LEAST AS BROAD AS THE
RANGE OF THOSE A LEGISLATURE WOULD CONSIDER WITH RESPECT TO AN EXPRESS
STATUTORY AUTHORIZATION OF A TRADITIONAL REMEDY.  IN THIS REGARD I
AGREE WITH THE COURT THAT THE APPROPRIATENESS OF ACCORDING BIVENS
COMPENSATORY RELIEF DOES NOT TURN SIMPLY ON THE DETERRENT EFFECT
LIABILITY WILL HAVE ON FEDERAL OFFICIAL CONDUCT.  /8/  DAMAGES AS A
TRADITIONAL FORM OF COMPENSATION FOR INVASION OF A LEGALLY PROTECTED
INTEREST MAY BE ENTIRELY APPROPRIATE EVEN IF NO SUBSTANTIAL DETERRENT
EFFECTS ON FUTURE OFFICIAL LAWLESSNESS MIGHT BE THOUGHT TO RESULT. 
BIVENS, AFTER ALL, HAS INVOKED JUDICIAL PROCESSES CLAIMING ENTITLEMENT
TO COMPENSATION FOR INJURIES RESULTING FROM ALLEGEDLY LAWLESS OFFICIAL
BEHAVIOR, IF THOSE INJURIES ARE PROPERLY COMPENSABLE IN MONEY DAMAGES. 
I DO NOT THINK A COURT OF LAW-- VESTED WITH THE POWER TO ACCORD A
REMEDY-- SHOULD DENY HIM HIS RELIEF SIMPLY BECAUSE HE CANNOT SHOW THAT
FUTURE LAWLESS CONDUCT WILL THEREBY BE DETERRED. 

AND I THINK IT IS CLEAR THAT BIVENS ADVANCES A CLAIM OF THE SORT
THAT, IF PROVED, WOULD BE PROPERLY COMPENSABLE IN DAMAGES.  THE
PERSONAL INTERESTS PROTECTED BY THE FOURTH AMENDMENT ARE THOSE WE
ATTEMPT TO CAPTURE BY THE NOTION OF "PRIVACY"; WHILE THE COURT TODAY
PROPERLY POINTS OUT THAT THE TYPE OF HARM WHICH OFFICIALS CAN INFLICT
WHEN THEY INVADE PROTECTED ZONES OF AN INDIVIDUAL'S LIFE ARE DIFFERENT
FROM THE TYPES OF HARM PRIVATE CITIZENS INFLICT ON ONE ANOTHER, THE
EXPERIENCE OF JUDGES IN DEALING WITH PRIVATE TRESPASS AND FALSE
IMPRISONMENT CLAIMS SUPPORTS THE CONCLUSION THAT COURTS OF LAW ARE
CAPABLE OF MAKING THE TYPES OF JUDGMENT CONCERNING CAUSATION AND
MAGNITUDE OF INJURY NECESSARY TO ACCORD MEANINGFUL COMPENSATION FOR
INVATION OF FOURTH AMENDMENT RIGHTS.  /9/ 

ON THE OTHER HAND, THE LIMITATIONS ON STATE REMEDIES FOR VIOLATION
OF COMMON-LAW RIGHTS BY PRIVATE CITIZENS ARGUE IN FAVOR OF A FEDERAL
DAMAGES REMEDY.  THE INJURIES INFLICTED BY OFFICIALS ACTING UNDER COLOR
OF LAW, WHILE NO LESS COMPENSABLE IN DAMAGES THAN THOSE INFLICTED BY
PRIVATE PARTIES, ARE SUBSTANTIALLY DIFFERENT IN KIND, AS THE COURT'S
OPINION TODAY DISCUSSES IN DETAIL.  SEE MONROE V. PAPE, 365 U.S. 167,
195 (1961) (HARLAN, J., CONCURRING).  IT SEEMS TO ME ENTIRELY PROPER
THAT THESE INJURIES BE COMPENSABLE ACCORDING TO UNIFORM RULES OF
FEDERAL LAW, ESPECIALLY IN LIGHT OF THE VERY LARGE ELEMENT OF FEDERAL
LAW WHICH MUST IN ANY EVENT CONTROL THE SCOPE OF OFFICIAL DEFENSES TO
LIABILITY.  SEE WHEELDIN V. WHEELER, 373 U.S. 647, 652 (1963); MONROE
V. PAPE, SUPRA, AT 194-195 (HARLAN, J., CONCURRING); HOWARD V. LYONS,
360 U.S. 593 (1959).  CERTAINLY, THERE IS VERY LITTLE TO BE GAINED FROM
THE STANDPOINT OF FEDERALISM BY PRESERVING DIFFERENT RULES OF LIABILITY
FOR FEDERAL OFFICERS DEPENDENT ON THE STATE WHERE THE INJURY OCCURS. 
CF. UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, 305-311 (1947). 

PUTTING ASIDE THE DESIRABILITY OF LEAVING THE PROBLEM OF FEDERAL
OFFICIAL LIABILITY TO THE VAGARIES OF COMMON-LAW ACTIONS, IT IS
APPARENT THAT SOME FORM OF DAMAGES IS THE ONLY POSSIBLE REMEDY FOR
SOMEONE IN BIVENS' ALLEGED POSITION.  IT WILL BE A RARE CASE INDEED IN
WHICH AN INDIVIDUAL IN BIVENS'  POSITION WILL BE ABLE TO OBVIATE THE
HARM BY SECURING INJUNCTIVE RELIEF FROM ANY COURT.  HOWEVER DESIRABLE A
DIRECT REMEDY AGAINST THE GOVERNMENT MIGHT BE AS A SUBSTITUTE FOR
INDIVIDUAL OFFICIAL LIABILITY, THE SOVEREIGN STILL REMAINS IMMUNE TO
SUIT.  FINALLY, ASSUMING BIVENS'  INNOCENCE OF THE CRIME CHARGED, THE
"EXCLUSIONARY RULE" IS SIMPLY IRRELEVANT.  FOR PEOPLE IN BIVENS' SHOES,
IT IS DAMAGES OR NOTHING. 

THE ONLY SUBSTANTIAL POLICY CONSIDERATION ADVANCED AGAINST
RECOGNITION OF A FEDERAL CAUSE OF ACTION FOR VIOLATION OF FOURTH
AMENDMENT RIGHTS BY FEDERAL OFFICIALS IS THE INCREMENTAL EXPENDITURE OF
JUDICIAL RESOURCES THAT WILL BE NECESSITATED BY THIS CLASS OF
LITIGATION.  THERE IS, HOWEVER, SOMETHING ULTIMATELY SELF-DEFEATING
ABOUT THIS ARGUMENT.  FOR IF, AS THE GOVERNMENT CONTENDS, DAMAGES WILL
RARELY BE REALIZED BY PLAINTIFFS IN THESE CASES BECAUSE OF JURY
HOSTILITY, THE LIMITED RESOURCES OF THE OFFICIAL CONCERNED, ETC., THEN
I AM NOT READY TO ASSUME THAT THERE WILL BE A SIGNIFICANT INCREASE IN
THE EXPENDITURE OF JUDICIAL RESOURCES ON THESE CLAIMS.  FEW RESPONSIBLE
LAWYERS AND PLAINTIFFS ARE LIKELY TO CHOOSE THE COURSE OF LITIGATION IF
THE STATISTICAL CHANCES OF SUCCESS ARE TRULY DE MINIMIS.  AND I SIMPLY
CANNOT AGREE WITH MY BROTHER BLACK THAT THE POSSIBILITY OF "FRIVOLOUS"
CLAIMS-- IF DEFINED SIMPLY AS CLAIMS WITH NO LEGAL MERIT-- WARRANTS
CLOSING THE COURTHOUSE DOORS TO PEOPLE IN BIVENS' SITUATION.  THERE ARE
OTHER WAYS, SHORT OF THAT, OF COPING WITH FRIVOLOUS LAWSUITS. 

ON THE OTHER HAND, IF-- AS I BELIEVE IS THE CASE WITH RESPECT, AT
LEAST, TO THE MOST FLAGRANT ABUSES OF OFFICIAL POWER-- DAMAGES TO SOME
DEGREE WILL BE AVAILABLE WHEN THE OPTION OF LITIGATION IS CHOSEN, THEN
THE QUESTION APPEARS TO BE HOW FOURTH AMENDMENT INTERESTS RANK ON A
SCALE OF SOCIAL VALUES COMPARED WITH, FOR EXAMPLE, THE INTERESTS OF
STOCKHOLDERS DEFRAUDED BY MISLEADING PROXIES.  SEE J. I. CASE CO. V.
BORAK, SUPRA.  JUDICIAL RESOURCES, I AM WELL AWARE, ARE INCREASINGLY
SCARCE THESE DAYS.  NONETHELESS, WHEN WE AUTOMATICALLY CLOSE THE
COURTHOUSE DOOR SOLELY ON THIS BASIS, WE IMPLICITLY EXPRESS A VALUE
JUDGMENT ON THE COMPARATIVE IMPORTANCE OF CLASSES OF LEGALLY PROTECTED
INTERESTS.  AND CURRENT LIMITATIONS UPON THE EFFECTIVE FUNCTIONING OF
THE COURTS ARISING FROM BUDGETARY INADEQUACIES SHOULD NOT BE PERMITTED
TO STAND IN THE WAY OF THE RECOGNITION OF OTHERWISE SOUND
CONSTITUTIONAL PRINCIPLES. 

OF COURSE, FOR A VARIETY OF REASONS, THE REMEDY MAY NOT OFTEN BE
SOUGHT.  SEE GENERALLY FOOTE, TORT REMEDIES FOR POLICE VIOLATIONS OF
INDIVIDUAL RIGHTS, 39 MINN.L.REV.  493 (1955).  AND THE COUNTERVAILING
INTERESTS IN EFFICIENT LAW ENFORCEMENT OF COURSE ARGUE FOR A PROTECTIVE
ZONE WITH RESPECT TO MANY TYPES OF FOURTH AMENDMENT VIOLATIONS.  CF.
BARR V. MATTEO, 360 U.S. 564 (1959) (OPINION OF HARLAN, J.).  BUT,
WHILE I EXPRESS NO VIEW ON THE IMMUNITY DEFENSE OFFERED IN THE INSTANT
CASE, I DEEM IT PROPER TO VENTURE THE THOUGHT THAT AT THE VERY LEAST
SUCH A REMEDY WOULD BE AVAILABLE FOR THE MOST FLAGRANT AND PATENTLY
UNJUSTIFIED SORTS OF POLICE CONDUCT.  ALTHOUGH LITIGANTS MAY NOT OFTEN
CHOOSE TO SEEK RELIEF, IT IS IMPORTANT, IN A CIVILIZED SOCIETY, THAT
THE JUDICIAL BRANCH OF THE NATION'S GOVERNMENT STAND READY TO AFFORD A
REMEDY IN THESE CIRCUMSTANCES.  IT GOES WITHOUT SAYING THAT I INTIMATE
NO VIEW ON THE MERITS OF PETITIONER'S UNDERLYING CLAIM. 

FOR THESE REASONS, I CONCUR IN THE JUDGMENT OF THE COURT. 

/1/  PETITIONER ALSO ASSERTED FEDERAL JURISDICTION UNDER 42 U.S.C.
1983 AND 28 U.S.C. 1343(3), AND 28 U.S.C. 1343(4).  NEITHER WILL
SUPPORT FEDERAL JURISDICTION OVER THE CLAIM.  SEE BIVENS V. SIX UNKNOWN
NAMED AGENTS, 409 F.2D 718, 720 N. 1 (CA2 1969). 

/2/  SEE N. 3, INFRA. 

/3/  THE GOVERNMENT APPEARS NOT QUITE READY TO CONCEDE THIS POINT. 
CERTAIN POINTS IN THE GOVERNMENT'S ARGUMENT SEEM TO SUGGEST THAT THE
"STATE-CREATED RIGHT-- FEDERAL DEFENSE" MODEL REACHES NOT ONLY THE
QUESTION OF THE POWER TO ACCORD A FEDERAL DAMAGES REMEDY, BUT ALSO THE
CLAIM TO ANY JUDICIAL REMEDY IN ANY COURT.  THUS, WE ARE POINTED TO
LASSON'S OBSERVATION CONCERNING MADISON'S VERSION OF THE FOURTH
AMENDMENT AS INTRODUCED INTO THE HOUSE: 

"THE OBSERVATION MAY BE MADE THAT THE LANGUAGE OF THE PROPOSAL DID
NOT PURPORT TO CREATE THE RIGHT TO BE SECURE FROM UNREASONABLE SEARCH
AND SEIZURES BUT MERELY STATED IT AS A RIGHT WHICH ALREADY EXISTED." 

N. LASSON, HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION 100 N. 77 (1937), QUOTED IN BRIEF FOR
RESPONDENTS 11 N. 7.  AND, ON THE PROBLEM OF FEDERAL EQUITABLE
VINDICATION OF CONSTITUTIONAL RIGHTS WITHOUT REGARD TO THE PRESENCE OF
A "STATE-CREATED RIGHT," SEE HART, THE RELATIONS BETWEEN STATE AND
FEDERAL LAW, 54 COL.L.REV.  489, 523-524 (1954), QUOTED IN BRIEF FOR
RESPONDENTS 17. 

ON THIS POINT, THE CHOICE OF PHRASEOLOGY IN THE FOURTH AMENDMENT
ITSELF IS SINGULARLY UNPERSUASIVE.  THE LEADING ARGUMENT AGAINST A
"BILL OF RIGHTS" WAS THE FEAR THAT INDIVIDUAL LIBERTIES NOT SPECIFIED
EXPRESSLY WOULD BE TAKEN AS EXCLUDED.  SEE GENERALLY, LASSON, SUPRA, AT
79-105.  THIS CIRCUMSTANCE ALONE MIGHT WELL EXPLAIN WHY THE AUTHORS OF
THE BILL OF RIGHTS WOULD OPT FOR LANGUAGE WHICH PRESUMES THE EXISTENCE
OF A FUNDAMENTAL INTEREST IN LIBERTY, ALBEIT ORIGINALLY DERIVED FROM
THE COMMON LAW.  SEE ENTICK V. CARRINGTON, 19 HOW.ST.TR. 1029, 95
ENG.REP.  807 (1765). 

IN TRUTH, THE LEGISLATIVE RECORD AS A WHOLE BEHIND THE BILL OF
RIGHTS IS SILENT ON THE RATHER REFINED DOCTRINAL QUESTION WHETHER THE
FRAMERS CONSIDERED THE RIGHTS THEREIN ENUMERATED AS DEPENDENT IN THE
FIRST INSTANCE ON THE DECISION OF A STATE TO ACCORD LEGAL STATUS TO THE
PERSONAL INTERESTS AT STAKE.  THAT IS UNDERSTANDABLE SINCE THE
GOVERNMENT ITSELF POINTS OUT THAT GENERAL FEDERAL-QUESTION JURISDICTION
WAS NOT EXTENDED TO THE FEDERAL DISTRICT COURTS UNTIL 1875.  ACT OF
MARCH 3, 1875, SEC. 1, 18 STAT. 470.  THE MOST THAT CAN BE DRAWN FROM
THIS HISTORICAL FACT IS THAT THE AUTHORS OF THE BILL OF RIGHTS ASSUMED
THE ADEQUACY OF COMMON-LAW REMEDIES TO VINDICATE THE FEDERALLY
PROTECTED INTEREST.  ONE MUST FIRST COMBINE THIS ASSUMPTION WITH
CONTEMPORARY MODES OF JURISPRUDENTIAL THOUGHT WHICH APPEARED TO LINK
"RIGHTS" AND "REMEDIES" IN A 1:1 CORRELATION, CF. MARBURY V. MADISON, 1
CRANCH 137, 163 (1803), BEFORE REACHING THE CONCLUSION THAT THE FRAMERS
ARE TO BE UNDERSTOOD TODAY AS HAVING CREATED NO FEDERALLY PROTECTED
INTERESTS.  AND, OF COURSE, THAT WOULD SIMPLY REQUIRE THE CONCLUSION
THAT FEDERAL EQUITABLE RELIEF WOULD NOT LIE TO PROTECT THOSE INTERESTS
GUARDED BY THEFOURTH AMENDMENT.     PROFESSOR HART'S OBSERVATIONS
CONCERNING THE "IMPERCEPTIBLE STEPS"  BETWEEN IN RE AYERS, 123 U.S. 443
(1887), AND EX PARTE YOUNG, 209 U.S. 123 (1908), SEE HART, SUPRA, FAIL
TO PERSUADE ME THAT THE SOURCE OF THE LEGAL INTEREST ASSERTED HERE IS
OTHER THAN THE FEDERAL CONSTITUTION ITSELF.  IN RE AYERS CONCERNED THE
PRECISE QUESTION WHETHER THE ELEVENTH AMENDMENT BARRED SUIT IN A
FEDERAL COURT FOR AN INJUNCTION COMPELLING A STATE OFFICER TO PERFORM A
CONTRACT TO WHICH THE STATE WAS A PARTY.  HAVING CONCLUDED THAT THE
SUIT WAS INESCAPABLY A SUIT AGAINST THE STATE UNDER THE ELEVENTH
AMENDMENT, THE COURT SPOKE OF THE PRESENCE OF STATE-CREATED RIGHTS AS A
DISTINGUISHING FACTOR SUPPORTING THE EXERCISE OF FEDERAL JURISDICTION
IN OTHER CONTRACT CLAUSE CASES.  THE ABSENCE OF A STATE-CREATED RIGHT
IN IN RE AYERS SERVED TO DISTINGUISH THAT CASE FROM THE PERSPECTIVE OF
THE STATE'S IMMUNITY TO SUIT; AYERS SIMPLY DOES NOT SPEAK TO THE
ANALYTICALLY DISTINCT QUESTION WHETHER THE CONSTITUTION IS IN THE
RELEVANT SENSE A SOURCE OF LEGAL PROTECTION FOR THE "RIGHTS" ENUMERATED
THEREIN. 

/4/  THE BORAK CASE IS AN ESPECIALLY CLEAR EXAMPLE OF THE EXERCISE
OF FEDERAL JUDICIAL POWER TO ACCORD DAMAGES AS AN APPROPRIATE REMEDY IN
THE ABSENCE OF ANY EXPRESS STATUTORY AUTHORIZATION OF A FEDERAL CAUSE
OF ACTION.  THERE WE "IMPLIED"-- FROM WHAT CAN ONLY BE CHARACTERIZED AS
AN "EXCLUSIVELY PROCEDURAL PROVISION" AFFORDING ACCESS TO A FEDERAL
FORUM, CF. TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 462-463
(1957) (FRANKFURTER, J., DISSENTING)-- A PRIVATE CAUSE OF ACTION FOR
DAMAGES FOR VIOLATION OF SEC. 14(A) OF THE SECURITIES EXCHANGE ACT OF
1934, 48 STAT. 895, 15 U.S.C. 78NA).  SEE SEC. 27, 48 STAT. 902, 15
U.S.C. 78AA.  WE DID SO IN AN AREA WHERE FEDERAL REGULATION HAS BEEN
SINGULARLY COMPREHENSIVE AND ELABORATE ADMINISTRATIVE ENFORCEMENT
MACHINERY HAD BEEN PROVIDED.  THE EXERCISE OF JUDICIAL POWER INVOLVED
IN BORAK SIMPLY CANNOT BE JUSTIFIED IN TERMS OF STATUTORY CONSTRUCTION,
SEE HILL, CONSTITUTIONAL REMEDIES, 69 COL.L.REV.  1109, 1120-1121
(1969); NOR DID THE BORAK COURT PURPORT TO DO SO.  SEE BORAK, SUPRA, AT
432-434.  THE NOTION OF "IMPLYING" A REMEDY, THEREFORE, AS APPLIED TO
CASES LIKE BORAK, CAN ONLY REFER TO A PROCESS WHEREBY THE FEDERAL
JUDICIARY EXERCISES A CHOICE AMONG TRADITIONALLY AVAILABLE JUDICIAL
REMEDIES ACCORDING TO REASONS RELATED TO THE SUBSTANTIVE SOCIAL POLICY
EMBODIED IN AN ACT OF POSITIVE LAW.  SEE IBID., AND BELL V. HOOD,
SUPRA, AT 684. 

/5/  WITH REGARD TO A COURT'S AUTHORITY TO GRANT AN EQUITABLE
REMEDY, THE LINE BETWEEN "SUBJECT MATTER" JURISDICTION AND REMEDIAL
POWERS HAD UNDOUBTEDLY BEEN OBSCURED BY THE FACT THAT HISTORICALLY THE
"SYSTEM OF EQUITY 'DERIVED ITS DOCTRINES, AS WELL AS ITS POWERS, FROM
ITS MODE OF GIVING RELIEF.'"  SEE GUARANTY TRUST CO. V. YORK, SUPRA, AT
105, QUOTING C. LANGDELL, SUMMARY OF EQUITY PLEADING XXVII (1877). 
PERHAPS THIS FACT ALONE ACCOUNTS FOR THE SUGGESTION SOMETIMES MADE THAT
A COURT'S POWER TO ENJOIN INVASION OF CONSTITUTIONALLY PROTECTED
INTERESTS DERIVES DIRECTLY FROM THE CONSTITUTION.  SEE BELL V. HOOD, 71
F.SUPP.  813, 819 (SD CAL. 1947). 

/6/ CHIEF JUDGE LUMBARD'S OPINION FOR THE COURT OF APPEALS IN THE
INSTANT CASE IS, AS I HAVE NOTED, IN ACCORD WITH THIS CONCLUSION: 

"THUS, EVEN IF THE CONSTITUTION ITSELF DOES NOT GIVE RISE TO AN
INHERENT INJUNCTIVE POWER TO PREVENT ITS VIOLATION BY GOVERNMENTAL
OFFICIALS THERE ARE STRONG REASONS FOR INFERRING THE EXISTENCE OF THIS
POWER UNDER ANY GENERAL GRANT OF JURISDICTION TO THE FEDERAL COURTS BY
CONGRESS."  409 F.2D, AT 723. 

THE DESCRIPTION OF THE REMEDY AS "INFERRED" CANNOT, OF COURSE, BE
INTENDED TO ASSIMILATE THE JUDICIAL DECISION TO ACCORD SUCH A REMEDY TO
ANY PROCESS OF STATUTORY CONSTRUCTION.  RATHER, AS WITH THE CASES
CONCERNING REMEDIES, IMPLIED FROM STATUTORY SCHEMES, SEE N. 4, SUPRA,
THE DESCRIPTION OF THE REMEDY AS "INFERRED" CAN ONLY BEAR ON THE
REASONS OFFERED TO EXPLAIN A JUDICIAL DECISION TO ACCORD OR NOT TO
ACCORD A PARTICULAR REMEDY. 

/7/  I EXPRESS NO VIEW ON THE GOVERNMENT'S SUGGESTION THAT
CONGRESSIONAL AUTHORITY TO SIMPLY DISCARD THE REMEDY THE COURT TODAY
AUTHORIZES MIGHT BE IN DOUBT; NOR DO I UNDERSTAND THE COURT'S OPINION
TODAY TO EXPRESS ANY VIEW ON THAT PARTICULAR QUESTION. 

/8/  AND I THINK IT FOLLOWS FROM THIS POINT THAT TODAY'S DECISION
HAS LITTLE, IF INDEED ANY, BEARING ON THE QUESTION WHETHER A FEDERAL
COURT MAY PROPERLY DEVISE REMEDIES-- OTHER THAN TRADITIONALLY AVAILABLE
FORMS OF JUDICIAL RELIEF-- FOR THE PURPOSE OF ENFORCING SUBSTANTIVE
SOCIAL POLICIES EMBODIED IN CONSTITUTIONAL OR STATUTORY POLICIES. 
COMPARE TODAY'S DECISION WITH MAPP V. OHIO, 367 U.S. 643 (1961), AND
WEEKS V. UNITED STATES, 232 U.S. 383 (1914).  THE COURT TODAY SIMPLY
RECOGNIZES WHAT HAS LONG BEEN IMPLICIT IN OUR DECISIONS CONCERNING
EQUITABLE RELIEF AND REMEDIES IMPLIED FROM STATUTORY SCHEMES; I.E.,
THAT A COURT OF LAW VESTED WITH JURISDICTION OVER THE SUBJECT MATTER OF
A SUIT HAS THE POWER-- AND THEREFORE THE DUTY-- TO MAKE PRINCIPLED
CHOICES AMONG TRADITIONAL JUDICIAL REMEDIES.  WHETHER SPECIAL
PROPHYLACTIC MEASURES-- WHICH AT LEAST ARGUABLY THE EXCLUSIONARY RULE
EXEMPLIFIES, SEE HILL, THE BILL OF RIGHTS AND THE SUPERVISORY POWER, 69
COL.L.REV.  181, 182-185 (1969)-- ARE SUPPORTABLE ON GROUNDS OTHER THAN
A COURT'S COMPETENCE TO SELECT AMONG TRADITIONAL JUDICIAL REMEDIES TO
MAKE GOOD THE WRONG DONE, CF. BELL V. HOOD, SUPRA, AT 684, IS A
SEPARATE QUESTION. 

/9/ THE SAME, OF COURSE, MAY NOT BE TRUE WITH RESPECT TO OTHER TYPES
OF CONSTITUTIONALLY PROTECTED INTERESTS, AND THEREFORE THE
APPROPRIATENESS OF MONEY DAMAGES MAY WELL VARY WITH THE NATURE OF THE
PERSONAL INTEREST ASSERTED.  SEE MONROE V. PAPE, 365 U.S. 167, 196 N. 5
(HARLAN, J., CONCURRING). 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

I DISSENT FROM TODAY'S HOLDING WHICH JUDICIALLY CREATES A DAMAGE
REMEDY NOT PROVIDED FOR BY THE CONSTITUTION AND NOT ENACTED BY
CONGRESS.  WE WOULD MORE SURELY PRESERVE THE IMPORTANT VALUES OF THE
DOCTRINE OF SEPARATION OF POWERS-- AND PERHAPS GET A BETTER RESULT-- BY
RECOMMENDING A SOLUTION TO THE CONGRESS AS THE BRANCH OF GOVERNMENT IN
WHICH THE CONSTITUTION HAS VESTED THE LEGISLATIVE POWER.  LEGISLATION
IS THE BUSINESS OF THE CONGRESS, AND IT HAS THE FACILITIES AND
COMPETENCE FOR THAT TASK-- AS WE DO NOT.  PROFESSOR THAYER, SPEAKING OF
THE LIMITS ON JUDICIAL POWER, ALBEIT IN ANOTHER CONTEXT, HAD THIS TO
SAY:  /1/ 

"AND IF IT BE TRUE THAT THE HOLDERS OF LEGISLATIVE POWER ARE
CARELESS OR EVIL, YET THE CONSTITUTIONAL DUTY OF THE COURT REMAINS
UNTOUCHED; IT CANNOT RIGHTLY ATTEMPT TO PROTECT THE PEOPLE, BY
UNDERTAKING A FUNCTION NOT ITS OWN.  ON THE OTHER HAND, BY ADHERING
RIGIDLY TO ITS OWN DUTY, THE COURT WILL HELP, AS NOTHING ELSE CAN, TO
FIX THE SPOT WHERE RESPONSIBILITY LIES, AND TO BRING DOWN ON THAT
PRECISE LOCALITY THE THUNDERBOLT OF POPULAR CONDEMNATION.  . . . FOR
THAT COURSE-- THE TRUE COURSE OF JUDICIAL DUTY ALWAYS-- WILL POWERFULLY
HELP TO BRING THE PEOPLE AND THEIR REPRESENTATIVES TO A SENSE OF THEIR
OWN RESPONSIBILITY." 

THIS CASE HAS SIGNIFICANCE FAR BEYOND ITS FACTS AND ITS HOLDING. 
FOR MORE THAN 55 YEARS THIS COURT HAS ENFORCED A RULE UNDER WHICH
EVIDENCE OF UNDOUBTED RELIABILITY AND PROBATIVE VALUE HAS BEEN
SUPPRESSED AND EXCLUDED FROM CRIMINAL CASES WHENEVER IT WAS OBTAINED IN
VIOLATION OF THE FOURTH AMENDMENT.  WEEKS V. UNITED STATES, 232 U.S.
383 (1914); BOYD V. UNITED STATES, 116 U.S. 616, 633 (1886) (DICTUM). 
THIS RULE WAS EXTENDED TO THE STATES IN MAPP V. OHIO, 367 U.S. 643
(1961).  /2/  THE RULE HAS RESTED ON A THEORY THAT SUPPRESSION OF
EVIDENCE IN THESE CIRCUMSTANCES WAS IMPERATIVE TO DETER LAW ENFORCEMENT
AUTHORITIES FROM USING IMPROPER METHODS TO OBTAIN EVIDENCE. 

THE DETERRENCE THEORY UNDERLYING THE SUPPRESSION DOCTRINE, OR
EXCLUSIONARY RULE, HAS A CERTAIN APPEAL IN SPITE OF THE HIGH PRICE
SOCIETY PAYS FOR SUCH A DRASTIC REMEDY.  NOTWITHSTANDING ITS
PLAUSIBILITY, MANY JUDGES AND LAWYERS AND SOME OF OUR MOST
DISTINGUISHED LEGAL SCHOLARS HAVE NEVER QUITE BEEN ABLE TO ESCAPE THE
FORCE OF CARDOZO'S STATEMENT OF THE DOCTRINE'S ANOMALOUS RESULT: 

"THE CRIMINAL IS TO GO FREE BECAUSE THE CONSTABLE HAS BLUNDERED.  .
. . A ROOM IS SEARCHED AGAINST THE LAW, AND THE BODY OF A MURDERED MAN
IS FOUND.  . . . THE PRIVACY OF THE HOME HAS BEEN INFRINGED, AND THE
MURDERER GOES FREE."  PEOPLE V. DEFORE, 242 N.Y. 13, 21, 23-24, 150
N.E. 585, 587, 588 (1926).  /3/ 

THE PLURALITY OPINION IN IRVINE V. CALIFORNIA, 347 U.S. 128, 136
(1954), CATALOGUED THE DOCTRINE'S DEFECTS: 

"REJECTION OF THE EVIDENCE DOES NOTHING TO PUNISH THE WRONG-DOING
OFFICIAL, WHILE IT MAY, AND LIKELY WILL, RELEASE THE WRONG-DOING
DEFENDANT.  IT DEPRIVES SOCIETY OF ITS REMEDY AGAINST ONE LAWBREAKER
BECAUSE HE HAS BEEN PURSUED BY ANOTHER.  IT PROTECTS ONE AGAINST WHOM
INCRIMINATING EVIDENCE IS DISCOVERED, BUT DOES NOTHING TO PROTECT
INNOCENT PERSONS WHO ARE THE VICTIMS OF ILLEGAL BUT FRUITLESS
SEARCHES." 

FROM TIME TO TIME MEMBERS OF THE COURT, RECOGNIZING THE VALIDITY OF
THESE PROTESTS, HAVE ARTICULATED VARYING ALTERNATIVE JUSTIFICATIONS FOR
THE SUPPRESSION OF IMPORTANT EVIDENCE IN A CRIMINAL TRIAL.  UNDER ONE
OF THESE ALTERNATIVE THEORIES THE RULE'S FOUNDATION IS SHIFTED TO THE
"SPORTING CONTEST" THESIS THAT THE GOVERNMENT MUST "PLAY THE GAME
FAIRLY" AND CANNOT BE ALLOWED TO PROFIT FROM ITS OWN ILLEGAL ACTS. 
OLMSTEAD V. UNITED STATES, 277 U.S. 438, 469, 471 (1928) (DISSENTING
OPINIONS); SEE TERRY V. OHIO, 392 U.S. 1, 13 (1968).  BUT THE
EXCLUSIONARY RULE DOES NOT INELUCTABLY FLOW FROM A DESIRE TO ENSURE
THAT GOVERNMENT PLAYS THE "GAME" ACCORDING TO THE RULES.  IF AN
EFFECTIVE ALTERNATIVE REMEDY IS AVAILABLE, CONCERN FOR OFFICIAL
OBSERVANCE OF THE LAW DOES NOT REQUIRE ADHERENCE TO THE EXCLUSIONARY
RULE.  NOR IS IT EASY TO UNDERSTAND HOW A COURT CAN BE THOUGHT TO
ENDORSE A VIOLATION OF THE FOURTH AMENDMENT BY ALLOWING ILLEGALLY
SEIZED EVIDENCE TO BE INTRODUCED AGAINST A DEFENDANT IF AN EFFECTIVE
REMEDY IS PROVIDED AGAINST THE GOVERNMENT. 

THE EXCLUSIONARY RULE HAS ALSO BEEN JUSTIFIED ON THE THEORY THAT THE
RELATIONSHIP BETWEEN THE SELF-INCRIMINATION CLAUSE OF THE FIFTH
AMENDMENT AND THE FOURTH AMENDMENT REQUIRES THE SUPPRESSION OF EVIDENCE
SEIZED IN VIOLATION OF THE LATTER.  BOYD V. UNITED STATES, SUPRA, AT
633 (DICTUM); WOLF V. COLORADO, 338 U.S. 25, 47, 48 (1949) (RUTLEDGE,
J., DISSENTING); MAPP V. OHIO, SUPRA, AT 661-666 (BLACK, J.,
CONCURRING). 

EVEN IGNORING, HOWEVER, THE DECISIONS OF THIS COURT THAT HAVE HELD
THAT THE FIFTH AMENDMENT APPLIES ONLY TO "TESTIMONIAL" DISCLOSURES,
UNITED STATES V. WADE, 388 U.S. 218, 221-223 (1967); SCHMERBER V.
CALIFORNIA, 384 U.S. 757, 764 AND N. 8 (1966), IT SEEMS CLEAR THAT THE
SELF-INCRIMINATION CLAUSE DOES NOT PROTECT A PERSON FROM THE SEIZURE OF
EVIDENCE THAT IS INCRIMINATING.  IT PROTECTS A PERSON ONLY FROM BEING
THE CONDUIT BY WHICH THE POLICE ACQUIRE EVIDENCE.  MR. JUSTICE HOLMES
ONCE PUT IT SUCCINCTLY, "A PARTY IS PRIVILEGED FROM PRODUCING THE
EVIDENCE BUT NOT FROM ITS PRODUCTION."  JOHNSON V. UNITED STATES, 228
U.S. 457, 458 (1913). 

IT IS CLEAR, HOWEVER, THAT NEITHER OF THESE THEORIES UNDERGIRDS THE
DECIDED CASES IN THIS COURT.  RATHER THE EXCLUSIONARY RULE HAS RESTED
ON THE DETERRENT RATIONALE-- THE HOPE THAT LAW ENFORCEMENT OFFICIALS
WOULD BE DETERRED FROM UNLAWFUL SEARCHES AND SEIZURES IF THE ILLEGALLY
SEIZED, ALBEIT TRUSTWORTHY, EVIDENCE WAS SUPPRESSED OFTEN ENOUGH AND
THE COURTS PERSISTENTLY ENOUGH DEPRIVED THEM OF ANY BENEFITS THEY MIGHT
HAVE GAINED FROM THEIR ILLEGAL CONDUCT. 

THIS EVIDENTIARY RULE IS UNIQUE TO AMERICAN JURISPRUDENCE.  ALTHOUGH
THE ENGLISH AND CANADIAN LEGAL SYSTEMS ARE HIGHLY REGARDED, NEITHER HAS
ADOPTED OUR RULE.  SEE MARTIN, THE EXCLUSIONARY RULE UNDER FOREIGN LAW-
CANADA, 52 J.CRIM.L.C.& P.S. 271, 272 (1961); WILLIAMS, THE
EXCLUSIONARY RULE UNDER FOREIGN LAW-- ENGLAND, 52 J.CRIM.L.C.& P.S. 272
(1961). 

I DO NOT QUESTION THE NEED FOR SOME REMEDY TO GIVE MEANING AND TEETH
TO THE CONSTITUTIONAL GUARANTEES AGAINST UNLAWFUL CONDUCT BY GOVERNMENT
OFFICIALS.  WITHOUT SOME EFFECTIVE SANCTION, THESE PROTECTIONS WOULD
CONSTITUTE LITTLE MORE THAN RHETORIC.  BEYOND DOUBT THE CONDUCT OF SOME
OFFICIALS REQUIRES SANCTIONS AS CASES LIKE IRVINE INDICATE.  BUT THE
HOPE THAT THIS OBJECTIVE COULD BE ACCOMPLISHED BY THE EXCLUSION OF
RELIABLE EVIDENCE FROM CRIMINAL TRIALS WAS HARDLY MORE THAN A WISTFUL
DREAM.  ALTHOUGH I WOULD HESITATE TO ABANDON IT UNTIL SOME MEANINGFUL
SUBSTITUTE IS DEVELOPED, THE HISTORY OF THE SUPPRESSION DOCTRINE
DEMONSTRATES THAT IT IS BOTH CONCEPTUALLY STERILE AND PRACTICALLY
INEFFECTIVE IN ACCOMPLISHING ITS STATED OBJECTIVE.  THIS IS ILLUSTRATED
BY THE PARADOX THAT AN UNLAWFUL ACT AGAINST A TOTALLY INNOCENT PERSON--
SUCH AS PETITIONER CLAIMS TO BE-- HAS BEEN LEFT WITHOUT AN EFFECTIVE
REMEDY, AND HENCE THE COURT FINDS IT NECESSARY NOW-- 55 YEARS LATER--
TO CONSTRUCT A REMEDY OF ITS OWN. 

SOME CLEAR DEMONSTRATION OF THE BENEFITS AND EFFECTIVENESS OF THE
EXCLUSIONARY RULE IS REQUIRED TO JUSTIFY IT IN VIEW OF THE HIGH PRICE
IT EXTRACTS FROM SOCIETY-- THE RELEASE OF COUNTLESS GUILTY CRIMINALS. 
SEE ALLEN, FEDERALISM AND THE FOURTH AMENDMENT:  A REQUIEM FOR WOLF,
1961 SUP.CT.REV.  1, 33 N. 172.  BUT THERE IS NO EMPIRICAL EVIDENCE TO
SUPPORT THE CLAIM THAT THE RULE ACTUALLY DETERS ILLEGAL CONDUCT OF LAW
ENFORCEMENT OFFICIALS.  OAKS, STUDYING THE EXCLUSIONARY RULE IN SEARCH
AND SEIZURE, 37 U.CHI.L.REV.  665, 667 (1970). 

THERE ARE SEVERAL REASONS FOR THIS FAILURE.  THE RULE DOES NOT APPLY
ANY DIRECT SANCTION TO THE INDIVIDUAL OFFICIAL WHOSE ILLEGAL CONDUCT
RESULTS IN THE EXCLUSION OF EVIDENCE IN A CRIMINAL TRIAL.  WITH RARE
EXCEPTIONS LAW ENFORCEMENT AGENCIES DO NOT IMPOSE DIRECT SANCTIONS ON
THE INDIVIDUAL OFFICER RESPONSIBLE FOR A PARTICULAR JUDICIAL
APPLICATION OF THE SUPPRESSION DOCTRINE.  ID., AT 710.  THUS THERE IS
VIRTUALLY NOTHING DONE TO BRING ABOUT A CHANGE IN HIS PRACTICES.  THE
IMMEDIATE SANCTION TRIGGERED BY THE APPLICATION OF THE RULE IS VISITED
UPON THE PROSECUTOR WHOSE CASE AGAINST A CRIMINAL IS EITHER WEAKENED OR
DESTROYED.  THE DOCTRINE DEPRIVES THE POLICE IN NO REAL SENSE; EXCEPT
THAT APPREHENDING WRONGDOERS IS THEIR BUSINESS, POLICE HAVE NO MORE
STAKE IN SUCCESSFUL PROSECUTIONS THAN PROSECUTORS OR THE PUBLIC. 
THE SUPPRESSION DOCTRINE VAGUELY ASSUMES THAT LAW ENFORCEMENT IS A
MONOLITHIC GOVERNMENTAL ENTERPRISE.  FOR EXAMPLE, THE DISSENTERS IN
WOLF V. COLORADO, SUPRA, AT 44, ARGUED THAT: 

"ONLY BY EXCLUSION CAN WE IMPRESS UPON THE ZEALOUS PROSECUTOR THAT
VIOLATION OF THE CONSTITUTION WILL DO HIM NO GOOD.  AND ONLY WHEN THAT
POINT IS DRIVEN HOME CAN THE PROSECUTOR BE EXPECTED TO EMPHASIZE THE
IMPORTANCE OF OBSERVING THE CONSTITUTIONAL DEMANDS IN HIS INSTRUCTIONS
TO THE POLICE." 

BUT THE PROSECUTOR WHO LOSES HIS CASE BECAUSE OF POLICE MISCONDUCT
IS NOT AN OFFICIAL IN THE POLICE DEPARTMENT; HE CAN RARELY SET IN
MOTION ANY CORRECTIVE ACTION OR ADMINISTRATIVE PENALTIES.  MOREOVER, HE
DOES NOT HAVE CONTROL OR DIRECTION OVER POLICE PROCEDURES OR POLICE
ACTIONS THAT LEAD TO THE EXCLUSION OF EVIDENCE.  IT IS THE RARE
EXCEPTION WHEN A PROSECUTOR TAKES PART IN ARRESTS, SEARCHES, OR
SEIZURES SO THAT HE CAN GUIDE POLICE ACTION. 

WHATEVER EDUCATIONAL EFFECT THE RULE CONCEIVABLY MIGHT HAVE IN
THEORY IS GREATLY DIMINISHED IN FACT BY THE REALITIES OF LAW
ENFORCEMENT WORK.  POLICEMEN DO NOT HAVE THE TIME, INCLINATION, OR
TRAINING TO READ AND GRASP THE NUANCES OF THE APPELLATE OPINIONS THAT
ULTIMATELY DEFINE THE STANDARDS OF CONDUCT THEY ARE TO FOLLOW.  THE
ISSUES THAT THESE DECISIONS RESOLVE OFTEN ADMIT OF NEITHER EASY NOR
OBVIOUS ANSWERS, AS SHARPLY DIVIDED COURTS ON WHAT IS OR IS NOT
"REASONABLE" AMPLY DEMONSTRATE.  /4/  NOR CAN JUDGES, IN ALL CANDOR,
FORGET THAT OPINIONS SOMETIMES LACK HELPFUL CLARITY. 

THE PRESUMED EDUCATIONAL EFFECT OF JUDICIAL OPINIONS IS ALSO REDUCED
BY THE LONG TIME LAPSE-- OFTEN SEVERAL YEARS-- BETWEEN THE ORIGINAL
POLICE ACTION AND ITS FINAL JUDICIAL EVALUATION.  GIVEN A POLICEMAN'S
PRESSING RESPONSIBILITIES, IT WOULD BE SURPRISING IF HE EVER BECOMES
AWARE OF THE FINAL RESULT AFTER SUCH A DELAY.  FINALLY, THE
EXCLUSIONARY RULE'S DETERRENT IMPACT IS DILUTED BY THE FACT THAT THERE
ARE LARGE AREAS OF POLICE ACTIVITY THAT DO NOT RESULT IN CRIMINAL
PROSECUTIONS-- HENCE THE RULE HAS VIRTUALLY NO APPLICABILITY AND NO
EFFECT IN SUCH SITUATIONS.  OAKS, SUPRA, AT 720-724. 

TODAY'S HOLDING SEEKS TO FILL ONE OF THE GAPS OF THE SUPPRESSION
DOCTRINE-- AT THE PRICE OF IMPINGING ON THE LEGISLATIVE AND POLICY
FUNCTIONS THAT THE CONSTITUTION VESTS IN CONGRESS.  NEVERTHELESS, THE
HOLDING SERVES THE USEFUL PURPOSE OF EXPOSING THE FUNDAMENTAL
WEAKNESSES OF THE SUPPRESSION DOCTRINE.  SUPPRESSING UNCHALLENGED TRUTH
HAS SET GUILTY CRIMINALS FREE BUT DEMONSTRABLY HAS NEITHER DETERRED
DELIBERATE VIOLATIONS OF THE FOURTH AMENDMENT NOR DECREASED THOSE
ERRORS IN JUDGMENT THAT WILL INEVITABLY OCCUR GIVEN THE PRESSURES
INHERENT IN POLICE WORK HAVING TO DO WITH SERIOUS CRIMES. 

ALTHOUGH UNFORTUNATELY INEFFECTIVE, THE EXCLUSIONARY RULE HAS
INCREASINGLY BEEN CHARACTERIZED BY A SINGLE, MONOLITHIC, AND DRASTIC
JUDICIAL RESPONSE TO ALL OFFICIAL VIOLATIONS OF LEGAL NORMS. 
INADVERTENT ERRORS OF JUDGMENT THAT DO NOT WORK ANY GRAVE INJUSTICE
WILL INEVITABLY OCCUR UNDER THE PRESSURE OF POLICE WORK.  THESE HONEST
MISTAKES HAVE BEEN TREATED IN THE SAME WAY AS DELIBERATE AND FLAGRANT
IRVINE-TYPE VIOLATIONS OF THE FOURTH AMENDMENT.  FOR EXAMPLE, IN MILLER
V. UNITED STATES, 357 U.S. 301, 309-310 (1958), RELIABLE EVIDENCE WAS
SUPPRESSED BECAUSE OF A POLICE OFFICER'S FAILURE TO SAY A "FEW MORE
WORDS" DURING THE ARREST AND SEARCH OF A KNOWN NARCOTICS PEDDLER. 

THIS COURT'S DECISION ANNOUNCED TODAY IN COOLIDGE V. NEW HAMPSHIRE,
POST, P. 443, DRAMATICALLY ILLUSTRATES THE EXTENT TO WHICH THE DOCTRINE
REPRESENTS A MECHANICALLY INFLEXIBLE RESPONSE TO WIDELY VARYING DEGREES
OF POLICE ERROR AND THE RESULTING HIGH PRICE THAT SOCIETY PAYS.  I
DISSENTED IN COOLIDGE PRIMARILY BECAUSE I DO NOT BELIEVE THE FOURTH
AMENDMENT HAD BEEN VIOLATED.  EVEN ON THE COURT'S CONTRARY PREMISE,
HOWEVER, WHATEVER VIOLATION OCCURRED WAS SURELY INSUFFICIENT IN NATURE
AND EXTENT TO JUSTIFY THE DRASTIC RESULT DICTATED BY THE SUPPRESSION
DOCTRINE.  A FAIR TRIAL BY JURY HAS RESOLVED DOUBTS AS TO COOLIDGE'S
GUILT.  BUT NOW HIS CONVICTION ON RETRIAL IS PLACED IN SERIOUS QUESTION
BY THE REMAND FOR A NEW TRIAL-- YEARS AFTER THE CRIME-- IN WHICH
EVIDENCE THAT THE NEW HAMPSHIRE COURTS FOUND RELEVANT AND RELIABLE WILL
BE WITHHELD FROM THE JURY'S CONSIDERATION.  IT IS HARDLY SURPRISING
THAT SUCH RESULTS ARE VIEWED WITH INCOMPREHENSION BY NONLAWYERS IN THIS
COUNTRY AND LAWYERS, JUDGES, AND LEGAL SCHOLARS THE WORLD OVER. 

FREEING EITHER A TIGER OR A MOUSE IN A SCHOOLROOM IS AN ILLEGAL ACT,
BUT NO RATIONAL PERSON WOULD SUGGEST THAT THESE TWO ACTS SHOULD BE
PUNISHED IN THE SAME WAY.  FROM TIME TO TIME JUDGES HAVE OCCASION TO
PASS ON REGULATIONS GOVERNING POLICE PROCEDURES.  I WONDER WHAT WOULD
BE THE JUDICIAL RESPONSE TO A POLICE ORDER AUTHORIZING "SHOOT TO KILL"
WITH RESPECT TO EVERY FUGITIVE.  IT IS EASY TO PREDICT OUR COLLECTIVE
WRATH AND OUTRAGE.  WE, IN COMMON WITH ALL RATIONAL MINDS, WOULD SAY
THAT THE POLICE RESPONSE MUST RELATE TO THE GRAVITY AND NEED; THAT A
"SHOOT" ORDER MIGHT CONCEIVABLY BE TOLERABLE TO PREVENT THE ESCAPE OF A
CONVICTED KILLER BUT SURELY NOT FOR A CAR THIEF, A PICKPOCKET OR A
SHOPLIFTER. 

I SUBMIT THAT SOCIETY HAS AT LEAST AS MUCH RIGHT TO EXPECT
RATIONALLY GRADED RESPONSES FROM JUDGES IN PLACE OF THE UNIVERSAL
"CAPITAL PUNISHMENT" WE INFLICT ON ALL EVIDENCE WHEN POLICE ERROR IS
SHOWN IN ITS ACQUISITION.  SEE ALI, MODEL CODE OF PRE-ARRAIGNMENT
PROCEDURE SEC. SS8.02(2), P. 23 (TENT.  DRAFT NO. 4, 1971), REPRINTED
IN THE APPENDIX TO THIS OPINION.  YET FOR OVER 55 YEARS, AND WITH
INCREASING SCOPE AND INTENSITY AS TODAY'S COOLIDGE HOLDING SHOWS, OUR
LEGAL SYSTEM HAS TREATED VASTLY DISSIMILAR CASES AS IF THEY WERE THE
SAME.  OUR ADHERENCE TO THE EXCLUSIONARY RULE, OUR RESISTANCE TO
CHANGE, AND OUR REFUSAL EVEN TO ACKNOWLEDGE THE NEED FOR EFFECTIVE
ENFORCEMENT MECHANISMS BRING TO MIND HOLMES' WELL-KNOWN STATEMENT: 

"IT IS REVOLTING TO HAVE NO BETTER REASON FOR A RULE OF LAW THAN
THAT SO IT WAS LAID DOWN IN THE TIME OF HENRY IV.  IT IS STILL MORE
REVOLTING IF THE GROUNDS UPON WHICH IT WAS LAID DOWN HAVE VANISHED LONG
SINCE, AND THE RULE SIMPLY PERSISTS FROM BLIND IMITATION OF THE PAST." 
HOLMES, THE PATH OF THE LAW, 10 HARV.L.REV.  457, 469 (1897). 

IN CHARACTERIZING THE SUPPRESSION DOCTRINE AS AN ANOMALOUS AND
INEFFECTIVE MECHANISM WITH WHICH TO REGULATE LAW ENFORCEMENT, I INTEND
NO REFLECTION ON THE MOTIVATION OF THOSE MEMBERS OF THIS COURT WHO
HOPED IT WOULD BE A MEANS OF ENFORCING THE FOURTH AMENDMENT.  JUDGES
CANNOT BE FAULTED FOR BEING OFFENDED BY ARRESTS, SEARCHES, AND SEIZURES
THAT VIOLATE THE BILL OF RIGHTS OR STATUTES INTENDED TO REGULATE PUBLIC
OFFICIALS.  BUT WE CAN AND SHOULD BE FAULTED FOR CLINGING TO AN
UNWORKABLE AND IRRATIONAL CONCEPT OF LAW.  MY CRITICISM IS THAT WE HAVE
TAKEN SO LONG TO FIND BETTER WAYS TO ACCOMPLISH THESE DESIRED
OBJECTIVES.  AND THERE ARE BETTER WAYS. 

INSTEAD OF CONTINUING TO ENFORCE THE SUPPRESSION DOCTRINE
INFLEXIBLY, RIGIDLY, AND MECHANICALLY, WE SHOULD VIEW IT AS ONE OF THE
EXPERIMENTAL STEPS IN THE GREAT TRADITION OF THE COMMON LAW AND
ACKNOWLEDGE ITS SHORTCOMINGS.  BUT IN THE SAME SPIRIT WE SHOULD BE
PREPARED TO DISCONTINUE WHAT THE EXPERIENCE OF OVER HALF A CENTURY HAS
SHOWN NEITHER DETERS ERRANT OFFICERS NOR AFFORDS A REMEDY TO THE
TOTALLY INNOCENT VICTIMS OF OFFICIAL MISCONDUCT. 

I DO NOT PROPOSE, HOWEVER, THAT WE ABANDON THE SUPPRESSION DOCTRINE
UNTIL SOME MEANINGFUL ALTERNATIVE CAN BE DEVELOPED.  IN A SENSE OUR
LEGAL SYSTEM HAS BECOME THE CAPTIVE OF ITS OWN CREATION.  TO OVERRULE
WEEKS AND MAPP, EVEN ASSUMING THE COURT WAS NOW PREPARED TO TAKE THAT
STEP, COULD RAISE YET NEW PROBLEMS.  OBVIOUSLY THE PUBLIC INTEREST
WOULD BE POORLY SERVED IF LAW ENFORCEMENT OFFICIALS WERE SUDDENLY TO
GAIN THE IMPRESSION, HOWEVER ERRONEOUS, THAT ALL CONSTITUTIONAL
RESTRAINTS ON POLICE HAD SOMEHOW BEEN REMOVED-- THAT AN OPEN SEASON ON
"CRIMINALS" HAD BEEN DECLARED.  I AM CONCERNED LEST SOME SUCH MISTAKEN
IMPRESSION MIGHT BE FOSTERED BY A FLAT OVERRULING OF THE SUPPRESSION
DOCTRINE CASES.  FOR YEARS WE HAVE RELIED UPON IT AS THE EXCLUSIVE
REMEDY FOR UNLAWFUL OFFICIAL CONDUCT; IN A SENSE WE ARE IN A SITUATION
AKIN TO THE NARCOTICS ADDICT WHOSE DEPENDENCE ON DRUGS PRECLUDES ANY
DRASTIC OR IMMEDIATE WITHDRAWAL OF THE SUPPOSED PROP, REGARDLESS OF HOW
FUTILE ITS CONTINUED USE MAY BE. 

REASONABLE AND EFFECTIVE SUBSTITUTES CAN BE FORMULATED IF CONGRESS
WOULD TAKE THE LEAD, AS IT DID FOR EXAMPLE IN 1946 IN THE FEDERAL TORT
CLAIMS ACT.  I SEE NO INSUPERABLE OBSTACLE TO THE ELIMINATION OF THE
SUPPRESSION DOCTRINE IF CONGRESS WOULD PROVIDE SOME MEANINGFUL AND
EFFECTIVE REMEDY AGAINST UNLAWFUL CONDUCT BY GOVERNMENT OFFICIALS. 

THE PROBLEMS OF BOTH ERROR AND DELIBERATE MISCONDUCT BY LAW
ENFORCEMENT OFFICIALS CALL FOR A WORKABLE REMEDY.  PRIVATE DAMAGE
ACTIONS AGAINST INDIVIDUAL POLICE OFFICERS CONCEDEDLY HAVE NOT
ADEQUATELY MET THIS REQUIREMENT, AND IT WOULD BE FALLACIOUS TO ASSUME
TODAY'S WORK OF THE COURT IN CREATING A REMEDY WILL REALLY ACCOMPLISH
ITS STATED OBJECTIVE.  THERE IS SOME VALIDITY TO THE CLAIMS THAT JURIES
WILL NOT RETURN VERDICTS AGAINST INDIVIDUAL OFFICERS EXCEPT IN THOSE
UNUSUAL CASES WHERE THE VIOLATION HAS BEEN FLAGRANT OR WHERE THE ERROR
HAS BEEN COMPLETE, AS IN THE ARREST OF THE WRONG PERSON OR THE SEARCH
OF THE WRONG HOUSE.  THERE IS SURELY SERIOUS DOUBT, FOR EXAMPLE, THAT A
DRUG PEDDLER CAUGHT PACKAGING HIS WARES WILL BE ABLE TO AROUSE MUCH
SYMPATHY IN A JURY ON THE GROUND THAT THE POLICE OFFICER DID NOT
ANNOUNCE HIS IDENTITY AND PURPOSE FULLY OR BECAUSE HE FAILED TO UTTER A
"FEW MORE WORDS."  SEE MILLER V. UNITED STATES, SUPRA.  JURORS MAY WELL
REFUSE TO PENALIZE A POLICE OFFICER AT THE BEHEST OF A PERSON THEY
BELIEVE TO BE A "CRIMINAL" AND PROBABLY WILL NOT PUNISH AN OFFICER FOR
HONEST ERRORS OF JUDGMENT.  IN ANY EVENT AN ACTUAL RECOVERY DEPENDS ON
FINDING NONEXEMPT ASSETS OF THE POLICE OFFICER FROM WHICH A JUDGMENT
CAN BE SATISFIED. 

I CONCLUDE, THEREFORE, THAT AN ENTIRELY DIFFERENT REMEDY IS
NECESSARY BUT IT IS ONE THAT IN MY VIEW IS AS MUCH BEYOND JUDICIAL
POWER AS THE STEP THE COURT TAKES TODAY.  CONGRESS SHOULD DEVELOP AN
ADMINISTRATIVE OR QUASIJUDICIAL REMEDY AGAINST THE GOVERNMENT ITSELF TO
AFFORD COMPENSATION AND RESTITUTION FOR PERSONS WHOSE FOURTH AMENDMENT
RIGHTS HAVE BEEN VIOLATED.  THE VENERABLE DOCTRINE OF RESPONDEAT
SUPERIOR IN OUR TORT LAW PROVIDES AN ENTIRELY APPROPRIATE CONCEPTUAL
BASIS FOR THIS REMEDY.  IF, FOR EXAMPLE A SECURITY GUARD PRIVATELY
EMPLOYED BY A DEPARTMENT STORE COMMITS AN ASSAULT OR OTHER TORT ON A
CUSTOMER SUCH AS AN IMPROPER SEARCH, THE VICTIM HAS A SIMPLE AND
OBVIOUS REMEDY-- AN ACTION FOR MONEY DAMAGES AGAINST THE GUARD'S
EMPLOYER, THE DEPARTMENT STORE.  W. PROSSER, THE LAW OF TORST SEC. 68,
PP. 470-480 (3D ED. 1964).  /5/  SUCH A STATUTORY SCHEME WOULD HAVE THE
ADDED ADVANTAGE OF PROVIDING SOME REMEDY TO THE COMPLETELY INNOCENT
PERSONS WHO ARE SOMETIMES THE VICTIMS OF ILLEGAL POLICE CONDUCT--
SOMETHING THAT THE SUPPRESSION DOCTRINE, OF COURSE, CAN NEVER
ACCOMPLISH. 

A SIMPLE STRUCTURE WOULD SUFFICE.  /6/  FOR EXAMPLE, CONGRESS COULD
ENACT A STATUTE ALONG THE FOLLOWING LINES: 

(A) A WAIVER OF SOVEREIGN IMMUNITY AS TO THE ILLEGAL ACTS OF LAW
ENFORCEMENT OFFICIALS COMMITTED IN THE.PERFORMANCEOF ASSIGNED DUTIES; 

(B) THE CREATION OFA CAUSEOF ACTION FOR DAMAGES SUSTAINED BY ANY
PERSON AGGRIEVED BY CONDUCT OF GOVERNMENTAL AGENTS IN VIOLATION OF THE
FOURTH AMENDMENT OR STATUTES REGULATING OFFICIAL CONDUCT; 

(C) THE CREATION OF A TRIBUNAL, QUASI-JUDICIAL IN NATURE OR PERHAPS
PATTERNED AFTER THE UNITED STATES COURT OF CLAIMS, TO ADJUDICATE ALL
CLAIMS UNDER THE STATUTE; 

(D) A PROVISION THAT THIS STATUTORY REMEDY IS IN LIEU OF THE
EXCLUSION OF EVIDENCE SECURED FOR USE IN CRIMINAL CASES IN VIOLATION OF
THE FOURTH AMENDMENT; AND 

(E) A PROVISION DIRECTING THAT NO EVIDENCE, OTHERWISE ADMISSIBLE,
SHALL BE EXCLUDED FROM ANY CRIMINAL PROCEEDING BECAUSE OF VIOLATION OF
THE FOURTH AMENDMENT. 

I DOUBT THAT LAWYERS SERVING ON SUCH A TRIBUNAL WOULD BE SWAYED
EITHER BY UNDUE SYMPATHY FOR OFFICERS OR BY THE PREJUDICE AGAINST
"CRIMINALS" THAT HAS SOMETIMES MOVED LAY JURORS TO DENY CLAIMS.  IN
ADDITION TO AWARDING DAMAGES, THE RECORD OF THE POLICE CONDUCT THAT IS
CONDEMNED WOULD UNDOUBTEDLY BECOME A RELEVANT PART OF AN OFFICER'S
PERSONNEL FILE SO THAT THE NEED FOR ADDITIONAL TRAINING OR DISCIPLINARY
ACTION COULD BE IDENTIFIED OR HIS FUTURE USEFULNESS AS A PUBLIC
OFFICIAL EVALUATED.  FINALLY, APPELLATE JUDICIAL REVIEW COULD BE MADE
AVAILABLE ON MUCH THE SAME BASIS THAT IT IS NOW PROVIDED AS TO THE
DISTRICT COURTS AND REGULATORY AGENCIES.  THIS WOULD LEAVE TO THE
COURTS THE ULTIMATE RESPONSIBILITY FOR DETERMINING AND ARTICULATING
STANDARDS. 

ONCE THE CONSTITUTIONAL VALIDITY OF SUCH A STATUTE IS ESTABLISHED,
/7/  IT CAN REASONABLY BE ASSUMED THAT THE STATES WOULD DEVELOP THEIR
OWN REMEDIAL SYSTEMS ON THE FEDERAL MODEL.  INDEED THERE IS NOTHING TO
PREVENT A STATE FROM ENACTING A COMPARABLE STATUTORY SCHEME WITHOUT
WAITING FOR THE CONGRESS.  STEPS ALONG THESE LINES WOULD MOVE OUR
SYSTEM TOWARD MORE RESPONSIBLE LAW ENFORCEMENT ON THE ONE HAND AND AWAY
FROM THE IRRATIONAL AND DRASTIC RESULTS OF THE SUPPRESSION DOCTRINE ON
THE OTHER.  INDEPENDENT OF THE ALTERNATIVE EMBRACED IN THIS DISSENTING
OPINION, I BELIEVE THE TIME HAS COME TO RE-EXAMINE THE SCOPE OF THE
EXCLUSIONARY RULE AND CONSIDER AT LEAST SOME NARROWING OF ITS THRUST SO
AS TO ELIMINATE THE ANOMALIES IT HAS PRODUCED.     IN A COUNTRY THAT
PRIDES ITSELF ON INNOVATION, INVENTIVE GENIUS, AND WILLINGNESS TO
EXPERIMENT, IT IS A PARADOX THAT WE SHOULD CLING FOR MORE THAN A HALF
CENTURY TO A LEGAL MECHANISM THAT WAS POORLY DESIGNED AND NEVER REALLY
WORKED.  I CAN ONLY HOPE NOW THAT THE CONGRESS WILL MANIFEST A
WILLINGNESS TO VIEW REALISTICALLY THE HARD EVIDENCE OF THE HALF-CENTURY
HISTORY OF THE SUPPRESSION DOCTRINE REVEALING THOUSANDS OF CASES IN
WHICH THE CRIMINAL WAS SET FREE BECAUSE THE CONSTABLE BLUNDERED AND
VIRTUALLY NO EVIDENCE THAT INNOCENT VICTIMS OF POLICE ERROR-- SUCH AS
PETITIONER CLAIMS TO BE-- HAVE BEEN AFFORDED MEANINGFUL REDRESS. 

/1/  J. THAYER, O. HOLMES, & F. FRANKFURTER, JOHN MARSHALL 88
(PHOENIX ED. 1967).     /2/  THE COURT REACHED THE ISSUE OF APPLYING
THE WEEKS DOCTRINE TO THE STATES SUA SPONTE. 

/3/  WHAT CARDOZO SUGGESTED AS AN EXAMPLE OF THE POTENTIALLY FAR
REACHING CONSEQUENCES OF THE SUPPRESSION DOCTRINE WAS ALMOST REALIZED
IN KILLOUGH V. UNITED STATES, 114 U.S.APP.D.C. 305, 315 F.2D 241
(1962). 

/4/  FOR EXAMPLE, IN A CASE ARISING UNDER MAPP, SUPRA, STATE JUDGES
AT EVERY LEVEL OF THE STATE JUDICIARY MAY FIND THE POLICE CONDUCT
PROPER.  ON FEDERAL HABEAS CORPUS A DISTRICT JUDGE AND A COURT OF
APPEALS MIGHT AGREE.  YET, IN THESE CIRCUMSTANCES, THIS COURT,
REVIEWING THE CASE AS MUCH AS 10 YEARS LATER, MIGHT REVERSE BY A NARROW
MARGIN.  IN THESE CIRCUMSTANCES IT IS DIFFICULT TO CONCLUDE THAT THE
POLICEMAN HAS VIOLATED SOME RULE THAT HE SHOULD HAVE KNOWN WAS A
RESTRICTION ON HIS AUTHORITY. 

/5/  DAMAGE VERDICTS FOR SUCH ACTS ARE OFTEN SUFFICIENT IN SIZE TO
PROVIDE AN EFFECTIVE DETERRENT AND STIMULATE EMPLOYERS TO CORRECTIVE
ACTION. 

/6/  ELECTRONIC EAVESDROPPING PRESENTS SPECIAL PROBLEMS.  SEE 18
U.S.C. 2510-2520 (1964 ED., SUPP. V). 

/7/  ANY SUCH LEGISLATION SHOULD EMPHASIZE THE INTERDEPENDENCE
BETWEEN THE WAIVER OF SOVEREIGN IMMUNITY AND THE ELIMINATION OF THE
JUDICIALLY CREATED EXCLUSIONARY RULE SO THAT IF THE LEGISLATIVE
DETERMINATION TO REPUDIATE THE EXCLUSIONARY RULE FALLS, THE ENTIRE
STATUTORY SCHEME WOULD FALL. 

        APPENDIX TO OPINION OF BURGER, C. J., DISSENTING 

IT IS INTERESTING TO NOTE THAT STUDIES OVER A PERIOD OF YEARS LED
THE AMERICAN LAW INSTITUTE TO PROPOSE THE FOLLOWING IN ITS TENTATIVE
DRAFT OF A MODEL PRE-ARRAIGNMENT CODE: 

    "(2) DETERMINATION.  UNLESS OTHERWISE REQUIRED BY THE

  CONSTITUTION OF THE UNITED STATES OR OF THIS STATE, A MOTION TO

  SUPPRESS EVIDENCE BASED UPON A VIOLATION OF ANY OF THE PROVISIONS

  OF THIS CODE SHALL BE GRANTED ONLY IF THE COURT FINDS THAT SUCH

  VIOLATION WAS SUBSTANTIAL.  IN DETERMINING WHETHER A VIOLATION IS

  SUBSTANTIAL THE COURT SHALL CONSIDER ALL THE CIRCUMSTANCES,

  INCLUDING: 

 "(A) THE IMPORTANCE OF THE PARTICULAR INTEREST VIOLATED; 

     "(B) THE EXTENT OF DEVIATION FROM LAWFUL CONDUCT; 

    "(C) THE EXTENT TO WHICH THE VIOLATION WAS WILLFUL; 

    "(D) THE EXTENT TO WHICH PRIVACY WAS INVADED; 

"(E) THE EXTENT TO WHICH EXCLUSION WILL TEND TO PREVENT VIOLATIONS OF
THIS CODE; 

     "(F) WHETHER, BUT FOR THE VIOLATION, THE THINGS SEIZED WOULD
HAVE BEEN DISCOVERED; AND 

"(G) THE EXTENT TO WHICH THE VIOLATION PREJUDICED THE MOVING

  PARTY'S ABILITY TO SUPPORT HIS MOTION, OR TO DEFEND HIMSELF IN

  THE PROCEEDING IN WHICH THE THINGS SEIZED ARE SOUGHT TO BE

  OFFERED IN EVIDENCE AGAINST HIM. 

     "(3) FRUITS OF PRIOR UNLAWFUL SEARCH.  IF A SEARCH OR SEIZURE

 IS CARRIED OUT IN SUCH A MANNER THAT THINGS SEIZED IN THE COURSE

  OF THE SEARCH WOULD BE SUBJECT TO A MOTION TO SUPPRESS UNDER

  SUBSECTION (1), AND IF AS A RESULT OF SUCH SEIZURE OTHER EVIDENCE

  IS DISCOVERED SUBSEQUENTLY AND OFFERED AGAINST A DEFENDANT, SUCH

  EVIDENCE SHALL BE SUBJECT TO A MOTION TO SUPPRESS UNLESS THE

  PROSECUTION ESTABLISHES THAT SUCH EVIDENCE WOULD PROBABLY HAVE

  BEEN DISCOVERED BY LAW ENFORCEMENT AUTHORITIES IRRESPECTIVE OF

  SUCH SEARCH OR SEIZURE, AND THE COURT FINDS THAT EXCLUSION OF

  SUCH EVIDENCE IS NOT NECESSARY TO DETER VIOLATIONS OF THIS

CODE." 

ALI, MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE SECS. SS8.02(2),(3),
PP. 23-24 (TENT.  DRAFT NO. 4, 1971). 

THE REPORTERS' VIEWS ON THE EXCLUSIONARY RULE ARE ALSO REFLECTED IN
THEIR COMMENT ON THE PROPOSED SECTION: 

     "THE REPORTERS WISH TO EMPHASIZE THAT THEY ARE NOT, AS A
MATTER

  OF POLICY, WEDDED TO THE EXCLUSIONARY RULE AS THE SOLE OR BEST

 MEANS OF ENFORCING THE FOURTH AMENDMENT.  SEE OAKS, STUDYING THE

  EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37 U.OF CHI.L.REV.  665

  (1970).  PARAGRAPH (2) EMBODIES WHAT THE REPORTERS HOPE IS A MORE

  FLEXIBLE APPROACH TO THE PROBLEM, SUBJECT OF COURSE TO

  CONSTITUTIONAL REQUIREMENTS."  ID., COMMENT, AT 26-27. 

THIS IS BUT ONE OF MANY EXPRESSIONS OF DISENCHANTMENT WITH THE
EXCLUSIONARY RULE; SEE ALSO: 

1.  BARRETT, EXCLUSION OF EVIDENCE OBTAINED BY ILLEGAL SEARCHES-- A
COMMENT ON PEOPLE VS. CAHAN, 43 CALIF.L.REV.  565 (1955). 

2.  BURNS, MAPP V. OHIO:  AN ALL-AMERICAN MISTAKE, 19 DEPAUL L.REV. 
80 (1969). 

3.  FRIENDLY, THE BILL OF RIGHTS AS A CODE OF CRIMINAL PROCEDURE, 53
CALIF.L.REV.  929, 951-954 (1965). 

4.  F. INBAU, J. THOMPSON, & C. SOWLE, CASES AND COMMENTS ON
CRIMINAL JUSTICE:  CRIMINAL LAW ADMINISTRATION 1-84 (3D ED. 1968). 

5.  LAFAVE, IMPROVING POLICE PERFORMANCE THROUGH THE EXCLUSIONARY
RULE (PTS.  1 & 2), 30 MO.L.REV.  391, 566 (1965). 

6.  LAFAVE & REMINGTON, CONTROLLING THE POLICE:  THE JUDGE'S ROLE IN
MAKING AND REVIEWING LAW ENFORCEMENT DECISIONS, 63 MICH.L.REV.  987
(1965). 

7.  N. MORRIS & G. HAWKINS, THE HONEST POLITICIAN'S GUIDE TO CRIME
CONTROL 101 (1970). 

8.  OAKS, STUDYING THE EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37
U.CHI.L.REV.  665 (1970). 

9.  PLUMB, ILLEGAL ENFORCEMENT OF THE LAW, 24 CORNELL L.Q. 337
(1939). 

10.  SCHAEFER, THE FOURTEENTH AMENDMENT AND SANCTITY OF THE PERSON,
64 NW.U.L.REV.  1 (1969). 

11.  WAITE, JUDGES AND THE CRIME BURDEN, 54 MICH.L.REV.  169
(1955). 

12.  WAITE, EVIDENCE-- POLICE REGULATION BY RULES OF EVIDENCE, 42
MICH.L.REV.  679 (1944). 

13.  WIGMORE, USING EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE,
8 A.B.A.J. 479 (1922). 

14.  8 J.WIGMORE, EVIDENCE 2184A (MCNAUGHTON REV. 1961). 

MR. JUSTICE BLACK, DISSENTING. 

IN MY OPINION FOR THE COURT IN BELL V. HOOD, 327 U.S. 678 (1946), WE
DID AS THE COURT STATES, RESERVE THE QUESTION WHETHER AN UNREASONABLE
SEARCH MADE BY A FEDERAL OFFICER IN VIOLATION OF THE FOURTH AMENDMENT
GIVES THE SUBJECT OF THE SEARCH A FEDERAL CAUSE OF ACTION FOR DAMAGES
AGAINST THE OFFICERS MAKING THE SEARCH.  THERE CAN BE NO DOUBT THAT
CONGRESS COULD CREATE A FEDERAL CAUSE OF ACTION FOR DAMAGES FOR AN
UNREASONABLE SEARCH IN VIOLATION OF THE FOURTH AMENDMENT.  ALTHOUGH
CONGRESS HAS CREATED SUCH A FEDERAL CAUSE OF ACTION AGAINST STATE
OFFICIALS ACTING UNDER COLOR OF STATE LAW, /1/  IT HAS NEVER CREATED
SUCH A CAUSE OF ACTION AGAINST FEDERAL OFFICIALS.  IF IT WANTED TO DO
SO, CONGRESS COULD, OF COURSE, CREATE A REMEDY AGAINST FEDERAL
OFFICIALS WHO VIOLATE THE FOURTH AMENDMENT IN THE PERFORMANCE OF THEIR
DUTIES.  BUT THE POINT OF THIS CASE AND THE FATAL WEAKNESS IN THE
COURT'S JUDGMENT IS THAT NEITHER CONGRESS NOR THE STATE OF NEW YORK HAS
ENACTED LEGISLATION CREATING SUCH A RIGHT OF ACTION.  FOR US TO DO SO
IS, IN MY JUDGMENT, AN EXERCISE OF POWER THAT THE CONSTITUTION DOES NOT
GIVE US. 

EVEN IF WE HAD THE LEGISLATIVE POWER TO CREATE A REMEDY, THERE ARE
MANY REASONS WHY WE SHOULD DECLINE TO CREATE A CAUSE OF ACTION WHERE
NONE HAS EXISTED SINCE THE FORMATION OF OUR GOVERNMENT.  THE COURTS OF
THE UNITED STATES AS WELL AS THOSE OF THE STATES ARE CHOKED WITH
LAWSUITS.  THE NUMBER OF CASES ON THE DOCKET OF THIS COURT HAVE REACHED
AN UNPRECEDENTED VOLUME IN RECENT YEARS.  A MAJORITY OF THESE CASES ARE
BROUGHT BY CITIZENS WITH SUBSTANTIAL COMPLAINTS-- PERSONS WHO ARE
PHYSICALLY OR ECONOMICALLY INJURED BY TORTS OR FRAUDS OR GOVERNMENTAL
INFRINGEMENT OF THEIR RIGHTS; PERSONS WHO HAVE BEEN UNJUSTLY DEPRIVED
OF THEIR LIBERTY OR THEIR PROPERTY; AND PERSONS WHO HAVE NOT YET
RECEIVED THE EQUAL OPPORTUNITY IN EDUCATION, EMPLOYMENT, AND PURSUIT OF
HAPPINESS THAT WAS THE DREAM OF OUR FOREFATHERS.  UNFORTUNATELY, THERE
HAVE ALSO BEEN A GROWING NUMBER OF FRIVOLOUS LAWSUITS, PARTICULARLY
ACTIONS FOR DAMAGES AGAINST LAW ENFORCEMENT OFFICERS WHOSE CONDUCT HAS
BEEN JUDICIALLY SANCTIONED BY STATE TRIAL AND APPELLATE COURTS AND IN
MANY INSTANCES EVEN BY THIS COURT.  MY FELLOW JUSTICES ON THIS COURT
AND OUR BRETHREN THROUGHOUT THE FEDERAL JUDICIARY KNOW ONLY TOO WELL
THE TIME-CONSUMING TASK OF CONSCIENTIOUSLY PORING OVER HUNDREDS OF
THOUSANDS OF PAGES OF FACTUAL ALLEGATIONS OF MISCONDUCT BY POLICE,
JUDICIAL, AND CORRECTIONS OFFICIALS.  OF COURSE, THERE ARE INSTANCES OF
LEGITIMATE GRIEVANCES, BUT LEGISLATORS MIGHT WELL DESIRE TO DEVOTE
JUDICIAL RESOURCES TO OTHER PROBLEMS OF A MORE SERIOUS NATURE. 

WE SIT AT THE TOP OF A JUDICIAL SYSTEM ACCUSED BY SOME OF NEARING
THE POINT OF COLLAPSE.  MANY CRIMINAL DEFENDANTS DO NOT RECEIVE SPEEDY
TRIALS AND NEITHER SOCIETY NOR THE ACCUSED ARE ASSURED OF JUSTICE WHEN
INORDINATE DELAYS OCCUR.  CITIZENS MUST WAIT YEARS TO LITIGATE THEIR
PRIVATE CIVIL SUITS.  SUBSTANTIAL CHANGES IN CORRECTIONAL AND PAROLE
SYSTEMS DEMAND THE ATTENTION OF THE LAWMAKERS AND THE JUDICIARY.  IF I
WERE A LEGISLATOR I MIGHT WELL FIND THESE AND OTHER NEEDS SO PRESSING
AS TO MAKE ME BELIEVE THAT THE RESOURCES OF LAWYERS AND JUDGES SHOULD
BE DEVOTED TO THEM RATHER THAN TO CIVIL DAMAGE ACTIONS AGAINST OFFICERS
WHO GENERALLY STRIVE TO PERFORM WITHIN CONSTITUTIONAL BOUNDS.  THERE IS
ALSO A REAL DANGER THAT SUCH SUITS MIGHT DETER OFFICIALS FROM THE
PROPER AND HONEST PERFORMANCE OF THEIR DUTIES. 

ALL OF THESE CONSIDERATIONS MAKE IMPERATIVE CAREFUL STUDY AND
WEIGHING OF THE ARGUMENTS BOTH FOR AND AGAINST THE CREATION OF SUCH A
REMEDY UNDER THE FOURTH AMENDMENT.  I WOULD HAVE GREAT DIFFICULTY FOR
MYSELF IN RESOLVING THE COMPETING POLICIES, GOALS, AND PRIORITIES IN
THE USE OF RESOURCES, IF I THOUGHT IT WERE MY JOB TO RESOLVE THOSE
QUESTIONS.  BUT THAT IS NOT MY TASK.  THE TASK OF EVALUATING THE PROS
AND CONS OF CREATING JUDICIAL REMEDIES FOR PARTICULAR WRONGS IS A
MATTER FOR CONGRESS AND THE LEGISLATURES OF THE STATES.  CONGRESS HAS
NOT PROVIDED THAT ANY FEDERAL COURT CAN ENTERTAIN A SUIT AGAINST A
FEDERAL OFFICER FOR VIOLATIONS OF FOURTH AMENDMENT RIGHTS OCCURRING IN
THE PERFORMANCE OF HIS DUTIES.  A STRONG INFERENCE CAN BE DRAWN FROM
CREATION OF SUCH ACTIONS AGAINST STATE OFFICIALS THAT CONGRESS DOES NOT
DESIRE TO PERMIT SUCH SUITS AGAINST FEDERAL OFFICIALS.  SHOULD THE TIME
COME WHEN CONGRESS DESIRES SUCH LAWSUITS, IT HAS BEFORE IT A MODEL OF
VALID LEGISLATION, 42 U.S.C. 1983, TO CREATE A DAMAGE REMEDY AGAINST
FEDERAL OFFICERS.  CASES COULD BE CITED TO SUPPORT THE LEGAL
PROPOSITION WHICH I ASSERT, BUT IT SEEMS TO ME TO BE A MATTER OF COMMON
UNDERSTANDING THAT THE BUSINESS OF THE JUDICIARY IS TO INTERPRET THE
LAWS AND NOT TO MAKE THEM. 

I DISSENT. 

/1/  "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS."  REV. STAT. SEC. 1979,
42 U.S.C. 1983. 

MR. JUSTICE BLACKMUN, DISSENTING. 

I, TOO, DISSENT.  I DO SO LARGELY FOR THE REASONS EXPRESSED IN CHIEF
JUDGE LUMBARD'S THOUGHTFUL AND SCHOLARLY OPINION FOR THE COURT OF
APPEALS.  BUT I ALSO FEEL THAT THE JUDICIAL LEGISLATION, WHICH THE
COURT BY ITS OPINION TODAY CONCEDEDLY IS EFFECTUATING, OPENS THE DOOR
FOR ANOTHER AVALANCHE OF NEW FEDERAL CASES.  WHENEVER A SUSPECT
IMAGINES, OR CHOOSES TO ASSERT, THAT A FOURTH AMENDMENT RIGHT HAS BEEN
VIOLATED, HE WILL NOW IMMEDIATELY SUE THE FEDERAL OFFICER IN FEDERAL
COURT.  THIS WILL TEND TO STULTIFY PROPER LAW ENFORCEMENT AND TO MAKE
THE DAY'S LABOR FOR THE HONEST AND CONSCIENTIOUS OFFICER EVEN MORE
ONEROUS AND MORE CRITICAL.  WHY THE COURT MOVES IN THIS DIRECTION AT
THIS TIME OF OUR HISTORY, I DO NOT KNOW.  THE FOURTH AMENDMENT WAS
ADOPTED IN 1791, AND IN ALL THE INTERVENING YEARS NEITHER THE CONGRESS
NOR THE COURT HAS SEEN FIT TO TAKE THIS STEP.  I HAD THOUGHT THAT FOR
THE TRULY AGGRIEVED PERSON OTHER QUITE ADEQUATE REMEDIES HAVE ALWAYS
BEEN AVAILABLE.  IF NOT, IT IS THE CONGRESS AND NOT THIS COURT THAT
SHOULD ACT. 

STEPHEN A. GRANT ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

JEROME FEIT ARGUED THE CAUSE FOR RESPONDENTS.  ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS, AND
ROBERT V. ZENER. 

MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION
AS AMICUS CURIAE URGING REVERSAL. 
..END :




JENNESS V. FORTSON, 403 U.S. 431 


       JENNESS ET AL. V. FORTSON, SECRETARY OF STATE OF GEORGIA

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA

 NO. 5714.  ARGUED MARCH 1, 1971-- DECIDED JUNE 21, 1971 


GEORGIA LAW PROVIDES THAT ANY POLITICAL ORGANIZATION WHOSE CANDIDATE
RECEIVED 20% OR MORE OF THE VOTE AT THE MOST RECENT GUBERNATORIAL OR
PRESIDENTIAL ELECTION IS A "POLITICAL PARTY."  ANY OTHER POLITICAL
ORGANIZATION IS A "POLITICAL BODY."  "POLITICAL PARTIES" CONDUCT
PRIMARY ELECTIONS, AND THE NAME OF THE WINNING CANDIDATE FOR EACH
OFFICE IS PRINTED ON THE BALLOT.  A NOMINEE OF A "POLITICAL BODY" OR AN
INDEPENDENT CANDIDATE MAY HAVE HIS NAME ON THE BALLOT IF HE FILES A
NOMINATING PETITION SIGNED BY NOT LESS THAN 5% OF THOSE ELIGIBLE TO
VOTE AT THE LAST ELECTION FOR THE OFFICE HE IS SEEKING.  THE TIME FOR
CIRCULATING THE PETITION IS 180 DAYS, AND IT MUST MEET THE SAME
DEADLINE AS A CANDIDATE IN A PARTY PRIMARY.  ELECTORS WHO SIGN A
NOMINATING PETITION ARE NOT RESTRICTED IN ANY WAY, AND THERE IS NO
LIMITATION ON WRITE-IN VOTES ON BALLOTS.  HELD:  THE CHALLENGE OF
APPELLANTS, PROSPECTIVE CANDIDATES AND REGISTERED VOTERS, TO THIS
ELECTION PROCEDURE WAS PROPERLY REJECTED AS IT DOES NOT ABRIDGE THE
RIGHTS OF FREE SPEECH AND ASSOCIATION SECURED BY THE FIRST AND
FOURTEENTH AMENDMENTS AND IS NOT VIOLATIVE OF THE FOURTEENTH
AMENDMENT'S EQUAL PROTECTION CLAUSE.  WILLIAMS V. RHODES, 393 U.S. 23,
DISTINGUISHED.  PP. 434-442. 

315 F.SUPP.  1035, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED. 
BLACK AND HARLAN, JJ., CONCURRED IN THE RESULT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

UNDER GEORGIA LAW A CANDIDATE FOR ELECTIVE PUBLIC OFFICE WHO DOES NOT
ENTER AND WIN A POLITICAL PARTY'S PRIMARY ELECTION CAN HAVE HIS NAME
PRINTED ON THE BALLOT AT THE GENERAL ELECTION ONLY IF HE HAS FILED A
NOMINATING PETITION SIGNED BY AT LEAST 5% OF THE NUMBER OF REGISTERED
VOTERS AT THE LAST GENERAL ELECTION FOR THE OFFICE IN QUESTION.  /1/
GEORGIA LAW ALSO PROVIDES THAT A CANDIDATE FOR ELECTIVE PUBLIC OFFICE
MUST PAY A FILING FEE EQUAL TO 5% OF THE ANNUAL SALARY OF THE OFFICE HE
IS SEEKING.  /2/  THIS LITIGATION AROSE WHEN THE APPELLANTS, WHO WERE
PROSPECTIVE CANDIDATES AND REGISTERED VOTERS, /3/  FILED A CLASS ACTION
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA, ATTACKING THE CONSTITUTIONALITY OF THESE PROVISIONS OF THE
GEORGIA ELECTION CODE, AND SEEKING DECLARATORY AND INJUNCTIVE RELIEF. 

A THREE-JUDGE COURT WAS CONVENED PURSUANT TO 28 U.S.C. 2281 AND
2284.  THEREAFTER THE APPELLANTS FILED A MOTION FOR SUMMARY JUDGMENT
BASED UPON A STIPULATION AS TO THE RELEVANT FACTS.  THE DISTRICT COURT
GRANTED THE MOTION AND ENTERED AN INJUNCTION WITH RESPECT TO THE FILING
FEE REQUIREMENT, HOLDING THAT THIS REQUIREMENT OPERATES TO DENY EQUAL
PROTECTION OF THE LAWS AS APPLIED TO THOSE PROSPECTIVE CANDIDATES WHO
CANNOT AFFORD TO PAY THE FEES.  NO APPEAL WAS TAKEN FROM THAT
INJUNCTIVE ORDER.  WITH RESPECT TO THE NOMINATING-PETITION REQUIREMENT,
THE DISTRICT COURT DENIED THE MOTION AND REFUSED TO ENTER AN
INJUNCTION, HOLDING THAT THIS STATUTORY PROVISION IS CONSTITUTIONALLY
VALID.  /4/  FROM THAT REFUSAL A DIRECT APPEAL WAS BROUGHT HERE UNDER
28 U.S.C. 1253, AND WE NOTED PROBABLE JURISDICTION.  /5/ 

THE BASIC STRUCTURE OF THE PERTINENT PROVISIONS OF THE GEORGIA
ELECTION CODE IS RELATIVELY UNCOMPLICATED.  ANY POLITICAL ORGANIZATION
WHOSE CANDIDATE RECEIVED 20% OR MORE OF THE VOTE AT THE MOST RECENT
GUBERNATORIAL OR PRESIDENTIAL ELECTION IS A "POLITICAL PARTY."  /6/
ANY OTHER POLITICAL ORGANIZATION IS A "POLITICAL BODY."  /7/
"POLITICAL PARTIES" CONDUCT PRIMARY ELECTIONS, REGULATED IN DETAIL BY
STATE LAW, AND ONLY THE NAME OF THE CANDIDATE FOR EACH OFFICE WHO WINS
THIS PRIMARY ELECTION IS PRINTED ON THE BALLOT AT THE SUBSEQUENT
GENERAL ELECTION, AS HIS PARTY'S NOMINEE FOR THE OFFICE IN QUESTION. 
/8/ A NOMINEE OF A "POLITICAL BODY" OR AN INDEPENDENT CANDIDATE, ON THE
OTHER HAND, MAY HAVE HIS NAME PRINTED ON THE BALLOT AT THE GENERAL
ELECTION BY FILING A NOMINATING PETITION.  /9/  THIS PETITION MUST BE
SIGNED BY "A NUMBER OF ELECTORS OF NOT LESS THAN FIVE PER CENT. OF THE
TOTAL NUMBER OF ELECTORS ELIGIBLE TO VOTE IN THE LAST ELECTION FOR THE
FILLING OF THE OFFICE THE CANDIDATE IS SEEKING . . . "  /10/  THE TOTAL
TIME ALLOWED FOR CIRCULATING A NOMINATING PETITION IS 180 DAYS, /11/
AND IT MUST BE FILED ON THE SECOND WEDNESDAY IN JUNE, THE SAME DEADLINE
THAT A CANDIDATE FILING IN A PARTY PRIMARY MUST MEET.  /12/ 

IT IS TO BE NOTED THAT THESE PROCEDURES RELATE ONLY TO THE RIGHT TO
HAVE THE NAME OF A CANDIDATE OR THE NOMINEE OF A "POLITICAL BODY"
PRINTED ON THE BALLOT.  THERE IS NO LIMITATION WHATEVER, PROCEDURAL OR
SUBSTANTIVE, ON THE RIGHT OF A VOTER TO WRITE IN ON THE BALLOT THE NAME
OF THE CANDIDATE OF HIS CHOICE AND TO HAVE THAT WRITE-IN VOTE COUNTED. 

IN THIS LITIGATION THE APPELLANTS HAVE MOUNTED THEIR ATTACK UPON
GEORGIA'S NOMINATING-PETITION REQUIREMENT ON TWO DIFFERENT BUT RELATED
CONSTITUTIONAL FRONTS.  FIRST, THEY SAY THAT TO REQUIRE A NONPARTY
CANDIDATE TO SECURE THE SIGNATURES OF A CERTAIN NUMBER OF VOTERS BEFORE
HIS NAME MAY BE PRINTED ON THE BALLOT IS TO ABRIDGE THE FREEDOMS OF
SPEECH AND ASSOCIATION GUARANTEED TO THAT CANDIDATE AND HIS SUPPORTERS
BY THE FIRST AND FOURTEENTH AMENDMENTS.  SECONDLY, THEY SAY THAT WHEN
GEORGIA REQUIRES A NONPARTY CANDIDATE TO SECURE THE SIGNATURES OF 5% OF
THE VOTERS BEFORE PRINTING HIS NAME ON THE BALLOT, YET PRINTS THE NAMES
OF THOSE CANDIDATES WHO HAVE WON NOMINATION IN PARTY PRIMARIES, IT
VIOLATES THE FOURTEENTH AMENDMENT BY DENYING THE NONPARTY CANDIDATE THE
EQUAL PROTECTION OF THE LAWS.  SINCE BOTH ARGUMENTS ARE PRIMARILY BASED
UPON THIS COURT'S DECISION IN WILLIAMS V. RHODES, 393 U.S. 23, IT
BECOMES NECESSARY TO EXAMINE THAT CASE IN SOME DETAIL. 

IN THE WILLIAMS CASE THE COURT WAS CONFRONTED WITH A STATE ELECTORAL
STRUCTURE THAT FAVORED "TWO PARTICULAR PARTIES-- THE REPUBLICANS AND
THE DEMOCRATS-- AND IN EFFECT TENDED) TO GIVE THEM A COMPLETE
MONOPOLY."  ID., AT 32.  THE COURT HELD UNCONSTITUTIONAL THE ELECTION
LAWS OF OHIO INSOFAR AS IN COMBINATION THEY MADE IT "VIRTUALLY
IMPOSSIBLE FOR A NEW POLITICAL PARTY, EVEN THOUGH IT HAD) HUNDREDS OF
THOUSANDS OF MEMBERS, OR AN OLD PARTY, WHICH HAD) A VERY SMALL NUMBER
OF MEMBERS, TO BE PLACED ON THE STATE BALLOT" IN THE 1968 PRESIDENTIAL
ELECTION.  ID., AT 24.  THE STATE LAWS MADE "NO PROVISION FOR BALLOT
POSITION FOR INDEPENDENT CANDIDATES AS DISTINGUISHED FROM POLITICAL
PARTIES," ID., AT 26, AND A NEW POLITICAL PARTY, IN ORDER TO BE PLACED
ON THE BALLOT, HAD "TO OBTAIN PETITIONS SIGNED BY QUALIFIED ELECTORS
TOTALING 15% OF THE NUMBER OF BALLOTS CAST IN THE LAST PRECEDING
GUBERNATORIAL ELECTION."  ID., AT 24-25.  BUT THIS REQUIREMENT WAS ONLY
A PRELIMINARY.  FOR, ALTHOUGH THE OHIO AMERICAN INDEPENDENT PARTY IN
THE FIRST SIX MONTHS OF 1968 HAD OBTAINED MORE THAN 450,000 SIGNATURES-
WELL OVER THE 15% REQUIREMENT-- OHIO HAD NONETHELESS DENIED THE PARTY
A PLACE ON THE BALLOT, BY REASON OF OTHER STATUTORY "BURDENSOME
PROCEDURES, REQUIRING EXTENSIVE ORGANIZATION AND OTHER ELECTION
ACTIVITIES BY A VERY EARLY DATE," ID., AT 33-- "INCLUDING THE EARLY
DEADLINE FOR FILING PETITIONS (FEBRUARY 7, 1968) AND THE REQUIREMENT OF
A PRIMARY ELECTION CONFORMING TO DETAILED AND RIGOROUS STANDARDS . . .
" ID., AT 27.  /13/ 

IN A SEPARATE OPINION MR. JUSTICE DOUGLAS DESCRIBED THE THEN
STRUCTURE OF OHIO'S NETWORK OF ELECTION LAWS IN ACCURATE DETAIL: 

     "OHIO, THROUGH AN ENTANGLING WEB OF ELECTION LAWS, HAS

  EFFECTIVELY FORECLOSED ITS PRESIDENTIAL BALLOT TO ALL BUT

  REPUBLICANS AND DEMOCRATS.  IT HAS DONE SO INITIALLY BY

  ABOLISHING WRITE-IN VOTES SO AS TO RESTRICT CANDIDACY TO NAMES ON

  THE BALLOT; IT HAS ELIMINATED ALL INDEPENDENT CANDIDATES THROUGH

  A REQUIREMENT THAT NOMINEES ENJOY THE ENDORSEMENT OF A POLITICAL

  PARTY; IT HAS DEFINED 'POLITICAL PARTY' IN SUCH A WAY AS TO

  EXCLUDE VIRTUALLY ALL BUT THE TWO MAJOR PARTIES. 

     "A CANDIDATE WHO SEEKS A PLACE ON THE OHIO PRESIDENTIAL BALLOT

  MUST FIRST COMPILE SIGNATURES OF QUALIFIED VOTERS WHO TOTAL AT

  LEAST 15% OF THOSE VOTING IN THE LAST GUBERNATORIAL ELECTION.  IN

  THIS ELECTION YEAR, 1968, A CANDIDATE WOULD NEED 433,100 SUCH

  SIGNATURES.  MOREOVER, HE MUST SUCCEED IN GATHERING THEM LONG

  BEFORE THE GENERAL ELECTION, SINCE A NOMINATING PETITION MUST BE

  FILED WITH THE SECRETARY OF STATE IN FEBRUARY.  THAT IS NOT ALL:

  HAVING COMPILED THOSE SIGNATURES, THE CANDIDATE MUST FURTHER SHOW

  THAT HE HAS RECEIVED THE NOMINATION OF A GROUP WHICH QUALIFIES AS

 A 'POLITICAL PARTY' WITHIN THE MEANING OF OHIO LAW.  IT IS NOT

  ENOUGH TO BE AN INDEPENDENT CANDIDATE FOR PRESIDENT WITH WIDE

  POPULAR SUPPORT; ONE MUST TRACE HIS SUPPORT TO A POLITICAL

  PARTY. 

     "TO QUALIFY AS A PARTY, A GROUP OF ELECTORS MUST PARTICIPATE
IN

  THE STATE PRIMARY, ELECTING ONE OF ITS MEMBERS FROM EACH COUNTY

  WARD OR PRECINCT TO A COUNTY CENTRAL COMMITTEE; TWO OF ITS

  MEMBERS FROM EACH CONGRESSIONAL DISTRICT TO A STATE CENTRAL

  COMMITTEE; AND SOME OF ITS MEMBERS AS DELEGATES AND ALTERNATES TO

  A NATIONAL CONVENTION.  MOREOVER, THOSE OF ITS MEMBERS WHO SEEK A

  PLACE ON THE PRIMARY BALLOT AS CANDIDATES FOR POSITIONS AS

  CENTRAL COMMITTEEMEN AND NATIONAL CONVENTION DELEGATES MUST

  DEMONSTRATE THAT THEY DID NOT VOTE IN ANY OTHER PARTY PRIMARY

  DURING THE PRECEDING FOUR YEARS; AND MUST PRESENT PETITIONS OF

  ENDORSEMENT ON THEIR BEHALF BY ANYWHERE FROM FIVE TO 1,000 VOTERS

  WHO LIKEWISE FAILED TO VOTE FOR ANY OTHER PARTY IN THE LAST

  PRECEDING PRIMARY.  THUS, TO QUALIFY AS A THIRD PARTY, A GROUP

  MUST FIRST ERECT ELABORATE POLITICAL MACHINERY, AND THEN REST IT

  UPON THE RANKS OF THOSE WHO HAVE PROVED BOTH UNWILLING AND UNABLE

  TO VOTE."  393 U.S.,AT 35-37. 

THE COURT'S DECISION WITH RESPECT TO THIS "ENTANGLING WEB OF
ELECTION LAWS" WAS UNAMBIGUOUS AND POSITIVE.  IT HELD THAT "THE
TOTALITY OF THE OHIO RESTRICTIVE LAWS TAKEN AS A WHOLE IMPOSES A BURDEN
ON VOTING AND ASSOCIATIONAL RIGHTS WHICH WE HOLD IS AN INVIDIOUS
DISCRIMINATION, IN VIOLATION OF THE EQUAL PROTECTION CLAUSE."  ID., AT
34.  /14/ 

BUT THE WILLIAMS CASE, IT IS CLEAR, PRESENTED A STATUTORY SCHEME
VASTLY DIFFERENT FROM THE ONE BEFORE US HERE.  UNLIKE OHIO, GEORGIA
FREELY PROVIDES FOR WRITE-IN VOTES.  UNLIKE OHIO, GEORGIA DOES NOT
REQUIRE EVERY CANDIDATE TO BE THE NOMINEE OF A POLITICAL PARTY, BUT
FULLY RECOGNIZES INDEPENDENT CANDIDACIES.  UNLIKE OHIO, GEORGIA DOES
NOT FIX AN UNREASONABLY EARLY FILING DEADLINE FOR CANDIDATES NOT
ENDORSED BY ESTABLISHED PARTIES.  UNLIKE OHIO, GEORGIA DOES NOT IMPOSE
UPON A SMALL PARTY OR A NEW PARTY THE PROCRUSTEAN REQUIREMENT OF
ESTABLISHING ELABORATE PRIMARY ELECTION MACHINERY.  FINALLY, AND IN
SUM, GEORGIA'S ELECTION LAWS, UNLIKE OHIO'S, DO NOT OPERATE TO FREEZE
THE POLITICAL STATUS QUO.  IN THIS SETTING WE CANNOT SAY THAT GEORGIA'S
5% PETITION REQUIREMENT VIOLATES THE CONSTITUTION. 

ANYONE WHO WISHES, AND WHO IS OTHERWISE ELIGIBLE, MAY BE AN
INDEPENDENT CANDIDATE FOR ANY OFFICE IN GEORGIA.  ANY POLITICAL
ORGANIZATION, HOWEVER NEW OR HOWEVER SMALL, IS FREE TO ENDORSE ANY
OTHERWISE ELIGIBLE PERSON AS ITS CANDIDATE FOR WHATEVER ELECTIVE PUBLIC
OFFICE IT CHOOSES.  SO FAR AS THE GEORGIA ELECTION LAWS ARE CONCERNED,
INDEPENDENT CANDIDATES AND MEMBERS OF SMALL OR NEWLY FORMED POLITICAL
ORGANIZATIONS ARE WHOLLY FREE TO ASSOCIATE, TO PROSELYTIZE, TO SPEAK,
TO WRITE, AND TO ORGANIZE CAMPAIGNS FOR ANY SCHOOL OF THOUGHT THEY
WISH.  THEY MAY CONFINE THEMSELVES TO AN APPEAL FOR WRITE-IN VOTES.  OR
THEY MAK SEEK, OVER A SIX MONTHS' PERIOD, THE SIGNATURES OF 5% OF THE
ELIGIBLE ELECTORATE FOR THE OFFICE IN QUESTION.  IF THEY CHOOSE THE
LATTER COURSE, THE WAY IS OPEN.  FOR GEORGIA IMPOSES NO SUFFOCATING
RESTRICTIONS WHATEVER UPON THE FREE CIRCULATION OF NOMINATING
PETITIONS.  A VOTER MAY SIGN A PETITION EVEN THOUGH HE HAS SIGNED
OTHERS, /15/  AND A VOTER WHO HAS SIGNED THE PETITION OF A NONPARTY
CANDIDATE IS FREE THEREAFTER TO PARTICIPATE IN A PARTY PRIMARY.  /16/
THE SIGNER OF A PETITION IS NOT REQUIRED TO STATE THAT HE INTENDS TO
VOTE FOR THAT CANDIDATE AT THE ELECTION.  /17/  A PERSON WHO HAS
PREVIOUSLY VOTED IN A PARTY PRIMARY IS FULLY ELIGIBLE TO SIGN A
PETITION, /18/  AND SO, ON THE OTHER HAND, IS A PERSON WHO WAS NOT EVEN
REGISTERED AT THE TIME OF THE PREVIOUS ELECTION.  /19/  NO SIGNATURE ON
A NOMINATING PETITION NEED BE NOTARIZED.  /20/ 

THE OPEN QUALITY OF THE GEORGIA SYSTEM IS FAR FROM MERELY
THEORETICAL.  FOR THE STIPULATION OF FACTS IN THIS RECORD INFORMS US
THAT A CANDIDATE FOR GOVERNOR IN 1966 /21/  AND A CANDIDATE FOR
PRESIDENT IN 1968, /22/ GAINED BALLOT DESIGNATION BY NOMINATING
PETITIONS, AND EACH WENT ON TO WIN A PLURALITY OF THE VOTES CAST AT THE
GENERAL ELECTION.  /23/ 

IN A WORD, GEORGIA IN NO WAY FREEZES THE STATUS QUO, BUT IMPLICITLY
RECOGNIZES THE POTENTIAL FLUIDITY OF AMERICAN POLITICAL LIFE.  THUS,
ANY POLITICAL BODY THAT WINS AS MUCH AS 20% SUPPORT AT AN ELECTION
BECOMES A "POLITICAL PARTY" WITH ITS ATTENDANT BALLOT POSITION RIGHTS
AND PRIMARY ELECTION OBLIGATIONS, AND ANY "POLITICAL PARTY" WHOSE
SUPPORT AT THE POLLS FALLS BELOW THAT FIGURE REVERTS TO THE STATUS OF A
"POLITICAL BODY" WITH ITS ATTENDANT NOMINATING PETITION
RESPONSIBILITIES AND FREEDOM FROM PRIMARY ELECTION DUTIES.  WE CAN FIND
IN THIS SYSTEM NOTHING THAT ABRIDGES THE RIGHTS OF FREE SPEECH AND
ASSOCIATION SECURED BY THE FIRST AND FOURTEENTH AMENDMENTS. 

THE APPELLANTS' CLAIM UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT FARES NO BETTER.  THIS CLAIM IS NECESSARILY
BOTTOMED UPON THE PREMISE THAT IT IS INHERENTLY MORE BURDENSOME FOR A
CANDIDATE TO GATHER THE SIGNATURES OF 5% OF THE TOTAL ELIGIBLE
ELECTORATE THAN IT IS TO WIN THE VOTES OF A MAJORITY IN A PARTY
PRIMARY.  /24/  THAT IS A PREMISE THAT CANNOT BE UNCRITICALLY
ACCEPTED.  ALTHOUGH THE NUMBER OF CANDIDATES IN A PARTY PRIMARY
ELECTION FOR ANY PARTICULAR OFFICE WILL, OF COURSE, VARY FROM ELECTION
TO ELECTION, THE APPELLEE'S BRIEF ADVISES US THAT IN THE MOST RECENT
ELECTION YEAR THERE WERE 12 CANDIDATES FOR THE NOMINATION FOR THE
OFFICE OF GOVERNOR IN THE TWO PARTY PRIMARIES.  ONLY TWO OF THESE 12,
OF COURSE, WON THEIR PARTY PRIMARIES AND HAD THEIR NAMES PRINTED ON THE
BALLOT AT THE GENERAL ELECTION.  SURELY AN ARGUMENT COULD AS WELL BE
MADE ON BEHALF OF THE 10 WHO LOST, THAT IT IS THEY WHO WERE DENIED
EQUAL PROTECTION VIS-A-VIS A CANDIDATE WHO COULD HAVE HAD HIS NAME
PRINTED ON THE BALLOT SIMPLY BY FILING A NOMINATING PETITION SIGNED BY
5% OF THE TOTAL ELECTORATE.     THE FACT IS, OF COURSE, THAT FROM THE
POINT OF VIEW OF ONE WHO ASPIRES TO ELECTIVE PUBLIC OFFICE IN GEORGIA,
ALTERNATIVE ROUTES ARE AVAILABLE TO GETTING HIS NAME PRINTED ON THE
BALLOT.  HE MAY ENTER THE PRIMARY OF A POLITICAL PARTY, OR HE MAY
CIRCULATE NOMINATING PETITIONS EITHER AS AN INDEPENDENT CANDIDATE OR
UNDER THE SPONSORSHIP OF A POLITICAL ORGANIZATION.  /25/  WE CANNOT SEE
HOW GEORGIA HAS VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT BY MAKING AVAILABLE THESE TWO ALTERNATIVE PATHS, NEITHER OF
WHICH CAN BE ASSUMED TO BE INHERENTLY MORE BURDENSOME THAN THE OTHER. 
INSOFAR AS WE DEAL HERE WITH THE CLAIMS OF A "POLITICAL BODY," AS
CONTRASTED WITH THOSE OF AN INDIVIDUAL ASPIRANT FOR PUBLIC OFFICE OR AN
INDIVIDUAL VOTER, /26/  THE SITUATION IS SOMEWHAT DIFFERENT.  FOR IT IS
TRUE THAT A "POLITICAL PARTY" IN GEORGIA IS ASSURED OF HAVING THE NAME
OF ITS NOMINEE-- THE PRIMARY ELECTION WINNER-- PRINTED ON THE BALLOT,
WHEREAS THE NAME OF THE NOMINEE OF A "POLITICAL BODY" WILL BE PRINTED
ONLY IF NOMINATING PETITIONS HAVE BEEN FILED THAT CONTAIN THE REQUISITE
NUMBER OF SIGNATURES.  BUT WE CAN HARDLY SUPPOSE THAT A SMALL OR A NEW
POLITICAL ORGANIZATION COULD SERIOUSLY URGE THAT ITS INTERESTS WOULD BE
ADVANCED IF IT WERE FORCED BY THE STATE TO ESTABLISH ALL OF THE
ELABORATE STATEWIDE, COUNTY-BY-COUNTY, ORGANIZATIONAL PARAPHERNALIA
REQUIRED OF A "POLITICAL PARTY" AS A CONDITION FOR CONDUCTING A PRIMARY
ELECTION.  /27/  INDEED, A LARGE REASON FOR THE COURT'S INVALIDATION OF
THE OHIO ELECTION LAWS IN WILLIAMS V. RHODES, SUPRA, WAS PRECISELY THAT
OHIO DID IMPOSE JUST SUCH REQUIREMENTS ON SMALL AND NEW POLITICAL
ORGANIZATIONS. 

THE FACT IS THAT THERE ARE OBVIOUS DIFFERENCES IN KIND BETWEEN THE
NEEDS AND POTENTIALS OF A POLITICAL PARTY WITH HISTORICALLY ESTABLISHED
BROAD SUPPORT, ON THE ONE HAND, AND A NEW OR SMALL POLITICAL
ORGANIZATION ON THE OTHER.  GEORGIA HAS NOT BEEN GUILTY OF INVIDIOUS
DISCRIMINATION IN RECOGNIZING THESE DIFFERENCES AND PROVIDING DIFFERENT
ROUTES TO THE PRINTED BALLOT.  SOMETIMES THE GROSSEST DISCRIMINATION
CAN LIE IN TREATING THINGS THAT ARE DIFFERENT AS THOUGH THEY WERE
EXACTLY ALIKE, A TRUISM WELL ILLUSTRATED IN WILLIAMS V. RHODES, SUPRA. 

THERE IS SURELY AN IMPORTANT STATE INTEREST IN REQUIRING SOME
PRELIMINARY SHOWING OF A SIGNIFICANT MODICUM OF SUPPORT BEFORE PRINTING
THE NAME OF A POLITICAL ORGANIZATION'S CANDIDATE ON THE BALLOT-- THE
INTEREST, IF NO OTHER, IN AVOIDING CONFUSION, DECEPTION, AND EVEN
FRUSTRATION OF THE DEMOCRATIC PROCESS AT THE GENERAL ELECTION.  THE 5%
FIGURE IS, TO BE SURE, APPARENTLY SOMEWHAT HIGHER THAN THE PERCENTAGE
OF SUPPORT REQUIRED TO BE SHOWN IN MANY STATES AS A CONDITION FOR
BALLOT POSITION, /28/  BUT THIS IS BALANCED BY THE FACT THAT GEORGIA
HAS IMPOSED NO ARBITRARY RESTRICTIONS WHATEVER UPON THE ELIGIBILITY OF
ANY REGISTERED VOTER TO SIGN AS MANY NOMINATING PETITIONS AS HE
WISHES.  GEORGIA IN THIS CASE HAS INSULATED NOT A SINGLE POTENTIAL
VOTER FROM THE APPEAL OF NEW POLITICAL VOICES WITHIN ITS BORDERS. 

              THE JUDGMENT IS AFFIRMED. 

/1/  GA. CODE ANN. SEC. 34-1010 (1970). 

/2/  GA. CODE ANN. SEC. 34-1013. 

/3/  ONE OF THE APPELLANTS WAS THE NOMINEE OF THE GEORGIA SOCIALIST
WORKERS PARTY FOR GOVERNOR IN 1970, TWO OTHERS WERE NOMINEES OF THAT
ORGANIZATION FOR THE HOUSE OF REPRESENTATIVES, AND TWO OTHERS WERE
REGISTERED VOTERS WHO SUED ON BEHALF OF THEMSELVES, AND "ALL OTHER
REGISTERED VOTERS IN THE STATE OF GEORGIA DESIROUS OF HAVING AN
OPPORTUNITY TO CONSIDER PERSONS ON THE BALLOT OTHER THAN NOMINEES OF
THE DEMOCRATIC AND REPUBLICAN PARTIES." 

/4/  GEORGIA SOCIALIST WORKERS PARTY V. FORTSON, 315 F.SUPP.  1035. 

/5/  400 U.S. 877. 

/6/  GA. CODE ANN. SEC. 34-103(U). 

/7/  GA. CODE ANN. SEC. 34-103(S). 

/8/  SEE, E.G., GA. CODE ANN. SECS. 34-1004 TO 34-1006, 34-1008, 34
1009, 34-1014, 34-1015, 34-1102, 34-1301 TO 34-1303, 34-1308, 34-1507,
34-1513. 

/9/  GA. CODE ANN. SEC. 34-1001. 

/10/  GA. CODE ANN. SEC. 34-1010(B). 

/11/  GA. CODE ANN. SEC. 34-1010(E). 

/12/  COMPARE GA. CODE ANN. SEC. 34-1002(B) WITH GA. CODE ANN. SEC.
34-1005(B). 

/13/  IN DESCRIBING THESE BURDENS, THE COURT QUOTED THE DESCRIPTION
CONTAINED IN THE DISSENTING OPINION OF A MEMBER OF THE THREE-JUDGE
DISTRICT COURT FROM WHICH THE APPEAL IN THE WILLIAMS CASE HAD COMB: 

"JUDGE KINNEARY DESCRIBES, IN HIS DISSENTING OPINION BELOW, THE
LEGAL OBSTACLES PLACED BEFORE A WOULD-BE THIRD PARTY EVEN AFTER THE 15%
SIGNATURE REQUIREMENT HAS BEEN FULFILLED: 

"'FIRST, AT THE PRIMARY ELECTION, THE NEW PARTY, OR ANY POLITICAL
PARTY, IS REQUIRED TO ELECT A STATE CENTRAL COMMITTEE CONSISTING OF TWO
MEMBERS FROM EACH CONGRESSIONAL DISTRICT AND COUNTY CENTRAL COMMITTEES
FOR EACH COUNTY IN OHIO.  (OHIO REV. CODE SECS. 3517.02-3517.04.) 
SECOND, AT THE PRIMARY ELECTION THE NEW PARTY MUST ELECT DELEGATES AND
ALTERNATES TO A NATIONAL CONVENTION.  (OHIO REV. CODE SEC. 3505.10.) 
SINCE SECTION 3513.19.1, OHIO REV. CODE, PROHIBITS A CANDIDATE FROM
SEEKING THE OFFICE OF DELEGATE TO THE NATIONAL CONVENTION OR
COMMITTEEMAN IF HE VOTED AS A MEMBER OF A DIFFERENT PARTY AT A PRIMARY
ELECTION IN THE PRECEDING FOUR YEAR PERIOD, THE NEW PARTY WOULD BE
REQUIRED TO HAVE OVER TWELVE HUNDRED MEMBERS WHO HAD NOT PREVIOUSLY
VOTED IN ANOTHER PARTY'S PRIMARY, AND WHO WOULD BE WILLING TO SERVE AS
COMMITTEEMEN AND DELEGATES.  THIRD, THE CANDIDATES FOR NOMINATION IN
THE PRIMARY WOULD HAVE TO FILE PETITIONS SIGNED BY QUALIFIED ELECTORS. 
(OHIO REV. CODE SEC. 3513.05.)  THE TERM "QUALIFIED ELECTORS" IS NOT
ADEQUATELY DEFINED IN THE OHIO REVISED CODE (SEC. 3501.01(H), BUT A
RELATED SECTION (SEC. 3513.19), PROVIDES THAT A QUALIFIED ELECTOR AT A
PRIMARY ELECTION OF A POLITICAL PARTY IS ONE WHO, (1) VOTED FOR A
MAJORITY OF THAT PARTY'S CANDIDATES AT THE LAST ELECTION, OR, (2) HAS
NEVER VOTED IN ANY ELECTION BEFORE.  SINCE NEITHER OF THE POLITICAL
PARTY PLAINTIFFS HAD ANY CANDIDATES AT THE LAST PRECEDING REGULAR STATE
ELECTION, THEY WOULD, OF NECESSITY, HAVE TO SEEK OUT MEMBERS WHO HAD
NEVER VOTED BEFORE TO SIGN THE NOMINATING PETITIONS, AND IT WOULD BE
ONLY THESE PERSONS WHO COULD VOTE IN THE PRIMARY ELECTION OF THE NEW
PARTY.'"  393 U.S.,AT 25 N. 1. 

/14/  MR. JUSTICE DOUGLAS, WHILE JOINING THE OPINION OF THE COURT,
FILED A SEPARATE OPINION GIVING EMPHASIS TO THE FIRST AMENDMENT VALUES
INVOLVED.  ID., AT 35.  MR. JUSTICE HARLAN FILED AN OPINION CONCURRING
IN THE JUDGMENT, EXPLAINING WHY HE WOULD HAVE RESTED DECISION "ENTIRELY
ON THE PROPOSITION THAT OHIO'S STATUTORY SCHEME VIOLATES THE BASIC
RIGHT OF POLITICAL ASSOCIATION ASSURED BY THE FIRST AMENDMENT WHICH IS
PROTECTED AGAINST STATE INFRINGEMENT UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT."  ID., AT 41. 

/15/  CONTRAST, E.G., LA. REV. STAT. ANN. SEC. 18:624(A) (1969);
N.Y. ELECTION LAW SEC. 138(6) (1964). 

/16/  CONTRAST, E.G., R.I. GEN. LAWS ANN. SEC. 17-16-8 (1969). 

/17/  CONTRAST, E.G., N.Y. ELECTION LAW SEC. 138(2) (1964). 

/18/  CONTRAST, E.G., CAL. ELECTIONS CODE SEC. 6830(C) (1961); COLO.
REV. STAT. ANN. SEC. 49-7-1(4) (SUPP. 1967). 

/19/  CONTRAST, E.G., N.Y. ELECTION LAW SEC. 138(2) (1964). 

/20/  CONTRAST, E.G., COLO. REV. STAT. ANN. SEC. 49-7-1(4) (SUPP.
1967). 

/21/  SEE FORTSON V. MORRIS, 385 U.S. 231. 

/22/  THIS WAS THE CANDIDATE WHOSE PARTY OHIO HAD KEPT OFF THE
BALLOT IN WILLIAMS V. RHODES, 393 U.S. 23. 

/23/  AS A RESULT, THE POLITICAL BODIES THAT ENDORSED THESE TWO
CANDIDATES HAVE NOW PRESUMABLY ACQUIRED THE STATUS OF POLITICAL
PARTIES. 

/24/  GEORGIA PROVIDES FOR A SECOND "RUN-OFF" PRIMARY ELECTION IN
THE EVENT NO CANDIDATE RECEIVES A MAJORITY OF THE VOTES CAST AT THE
ORIGINAL PRIMARY ELECTION.  SEE GA. CODE ANN. SEC. 34-1513(A). 

/25/  THE ARGUMENT THAT THE FIRST ALTERNATIVE ROUTE IS NOT
REALISTICALLY OPEN TO A CANDIDATE WITH UNORTHODOX OR "RADICAL" VIEWS IS
HARDLY VALID IN THE LIGHT OF AMERICAN POLITICAL HISTORY.  TIME AFTER
TIME ESTABLISHED POLITICAL PARTIES, AT LOCAL, STATE, AND NATIONAL
LEVELS, HAVE, WHILE RETAINING THEIR OLD LABELS, CHANGED THEIR
IDEOLOGICAL DIRECTION BECAUSE OF THE INFLUENCE AND LEADERSHIP OF THOSE
WITH UNORTHODOX OR "RADICAL" VIEWS. 

/26/  THE GEORGIA SOCIALIST WORKERS PARTY WAS ONE OF THE PLAINTIFFS
IN THE DISTRICT COURT, BUT IS NOT AN APPELLANT HERE.  WE MAY ASSUME,
HOWEVER, WITHOUT DECIDING, THAT THE INDIVIDUAL APPELLANTS CAN PROPERLY
ASSERT THE INTERESTS OF THAT "POLITICAL BODY." 

/27/  SEE, E.G., GA. CODE ANN. SEC. 34-1004. 

/28/  SEE WILLIAMS V. RHODES, 393 U.S.,AT 47 N. 10 (HARLAN, J.,
CONCURRING IN RESULT). 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN CONCUR IN THE RESULT. 

PETER E. RINDSKOPF ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WAS HOWARD MOORE, JR. 

ROBERT J. CASTELLANI, ASSISTANT ATTORNEY GENERAL OF GEORGIA, ARGUED
THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WERE ARTHUR K. BOLTON,
ATTORNEY GENERAL, AND HAROLD N. HILL, JR., EXECUTIVE ASSISTANT ATTORNEY
GENERAL. 
..END :





COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443 


       COOLIDGE V. NEW HAMPSHIRE

        CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE

        NO. 323.  ARGUED JANUARY 12,1971-- DECIDED JUNE 21, 1971 


POLICE WENT TO PETITIONER'S HOME ON JANUARY 28, 1964, TO QUESTION HIM
ABOUT A MURDER.  IN THE COURSE OF THEIR INQUIRY HE SHOWED THEM THREE
GUNS; AND HE AGREED TO TAKE A LIE-DETECTOR TEST ON FEBRUARY 2.  THE
TEST WAS INCONCLUSIVE ON THE MURDER BUT DURING ITS COURSE PETITIONER
ADMITTED A THEFT.  IN PETITIONER'S ABSENCE, TWO OTHER POLICEMEN CAME TO
THE HOUSE AND QUESTIONED PETITIONER'S WIFE TO CHECK PETITIONER'S STORY
AND CORROBORATE HIS ADMISSION OF THE THEFT.  UNAWARE OF THE VISIT OF
THE OTHER OFFICERS WHO HAD BEEN SHOWN THE GUNS AND KNOWING LITTLE ABOUT
THE MURDER WEAPON, THE POLICE ASKED ABOUT ANY GUNS THERE MIGHT BE IN
THE HOUSE AND WERE SHOWN FOUR BY PETITIONER'S WIFE WHICH SHE OFFERED TO
LET THEM TAKE.  AFTER ONE POLICEMAN FIRST DECLINED THE OFFER, THEY TOOK
THE GUNS, ALONG WITH VARIOUS ARTICLES OF PETITIONER'S CLOTHING HIS WIFE
MADE AVAILABLE TO THEM.  ON FEBRUARY 19, PETITIONER WAS ARRESTED IN HIS
HOUSE FOR THE MURDER AND ON THAT DATE A WARRANT TO SEARCH PETITIONER'S
AUTOMOBILE WAS APPLIED FOR BY THE POLICE CHIEF AND ISSUED BY THE
ATTORNEY GENERAL (WHO HAD ASSUMED CHARGE OF THE INVESTIGATION AND WAS
LATER THE CHIEF PROSECUTOR AT THE TRIAL), ACTING AS A JUSTICE OF THE
PEACE.  THE CAR, WHICH AT THE TIME OF THE ARREST WAS PARKED IN
PETITIONER'S DRIVEWAY, WAS SUBSEQUENTLY TOWED TO THE POLICE STATION,
WHERE ON FEBRUARY 21 AND ON TWO OCCASIONS THE NEXT YEAR IT WAS
SEARCHED.  VACUUM SWEEPINGS FROM THE CAR AS WELL AS FROM THE CLOTHING
WERE USED AS EVIDENCE AT THE TRIAL, ALONG WITH ONE OF THE GUNS MADE
AVAILABLE BY PETITIONER'S WIFE.  FOLLOWING THE OVERRULING OF PRETRIAL
MOTIONS TO SUPPRESS THAT EVIDENCE, PETITIONER WAS CONVICTED, AND THE
STATE SUPREME COURT AFFIRMED.  HELD: 

1.  THE WARRANT FOR THE SEARCH AND SEIZURE OF PETITIONER'S
AUTOMOBILE DID NOT SATISFY THE REQUIREMENTS OF THE FOURTH AMENDMENT AS
MADE APPLICABLE TO THE STATES BY THE FOURTEENTH BECAUSE IT WAS NOT
ISSUED BY A "NEUTRAL AND DETACHED MAGISTRATE."  JOHNSON V. UNITED
STATES, 333 U.S. 10, 14.  PP. 449-453. 

2.  THE BASIC CONSTITUTIONAL RULE IS THAT "SEARCHES CONDUCTED OUTSIDE
THE JUDICIAL PROCESS, WITHOUT PRIOR APPROVAL BY JUDGE OR MAGISTRATE,
ARE PER SE UNREASONABLE UNDER THE FOURTH AMENDMENT-- SUBJECT ONLY TO A
FEW SPECIFICALLY ESTABLISHED AND WELL-DEFINED EXCEPTIONS," AND, ON THE
FACTS OF THIS CASE, A WARRANTLESS SEARCH AND SEIZURE OF THE CAR CANNOT
BE JUSTIFIED UNDER THOSE EXCEPTIONS.  PP. 453-482. 

(A) THE SEIZURE OF THE CAR IN THE DRIVEWAY CANNOT BE JUSTIFIED AS
INCIDENTAL TO THE ARREST WHICH TOOK PLACE INSIDE THE HOUSE.  EVEN
ASSUMING, ARGUENDO, THAT THE POLICE COULD PROPERLY HAVE MADE A
WARRANTLESS SEARCH OF THE CAR IN THE DRIVEWAY WHEN THEY ARRESTED
PETITIONER, THEY COULD NOT HAVE DONE SO AT THEIR LEISURE AFTER ITS
REMOVAL.  PP. 455-457. 

(B) UNDER THE CIRCUMSTANCES PRESENT HERE-- WHERE THE POLICE FOR SOME
TIME HAD KNOWN OF THE PROBABLE ROLE OF THE CAR IN THE CRIME, PETITIONER
HAD HAD AMPLE OPPORTUNITY TO DESTROY INCRIMINATING EVIDENCE, THE HOUSE
WAS GUARDED AT THE TIME OF ARREST AND PETITIONER HAD NO ACCESS TO THE
CAR-- THERE WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING THE WARRANTLESS
SEARCH EVEN HAD IT BEEN MADE BEFORE THE CAR WAS TAKEN TO THE POLICE
STATION, AND THE SPECIAL EXCEPTIONS FOR AUTOMOBILE SEARCHES IN CARROLL
V. UNITED STATES, 267 U.S. 132, AND CHAMBERS V. MARONEY, 399 U.S. 42,
ARE CLEARLY INAPPLICABLE.  CF. DYKE V. TAYLOR IMPLEMENT MFG. CO., 391
U.S. 216.  PP. 458-464. 

(C) UNDER CERTAIN CIRCUMSTANCES THE POLICE MAY WITHOUT A WARRANT
SEIZE EVIDENCE IN "PLAIN VIEW," THOUGH NOT FOR THAT REASON ALONE AND
ONLY WHEN THE DISCOVERY OF THE EVIDENCE IS INADVERTENT.  THAT EXCEPTION
IS INAPPLICABLE TO THE FACTS OF THE INSTANT CASE, WHERE THE POLICE HAD
AMPLE OPPORTUNITY TO OBTAIN A VALID WARRANT, KNEW IN ADVANCE THE CAR'S
DESCRIPTION AND LOCATION, INTENDED TO SEIZE IT WHEN THEY ENTERED ON
PETITIONER'S PROPERTY, AND NO CONTRABAND OR DANGEROUS OBJECTS WERE
INVOLVED.  PP. 464-473. 

3.  NO SEARCH AND SEIZURE WERE IMPLICATED IN THE FEBRUARY 2 VISIT
WHEN THE POLICE OBTAINED THE GUNS AND CLOTHING FROM PETITIONER'S WIFE,
AND HENCE THEY NEEDED NO WARRANT.  THE POLICE, WHO EXERTED NO EFFORT TO
COERCE OR DOMINATE HER, WERE NOT OBLIGATED TO REFUSE HER OFFER FOR THEM
TO TAKE THE GUNS, AND IN MAKING THESE AND THE OTHER ITEMS AVAILABLE TO
THE POLICE, SHE WAS NOT ACTING AS THE INSTRUMENT OR AGENT OF THE
POLICE.  PP. 484-490. 

109 N.H. 403, 260 A.2D 547, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J. (AS TO PART III), AND HARLAN (AS TO PARTS I, II-D, AND III),
DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED.  HARLAN, J., FILED A
CONCURRING OPINION, POST, P. 490.  BURGER, C. J., FILED A CONCURRING
AND DISSENTING OPINION, POST, P. 492.  BLACK, J., FILED A CONCURRING
AND DISSENTING OPINION, IN A PORTION OF PART I AND IN PARTS II AND III
OF WHICH BURGER, C. J., AND BLACKMUN, J., JOINED, POST, P. 493.  WHITE,
J., FILED A CONCURRING AND DISSENTING OPINION, IN WHICH BURGER, C. J.,
JOINED, POST, P. 510. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT.  /0/ 

WE ARE CALLED UPON IN THIS CASE TO DECIDE ISSUES UNDER THE FOURTH
AND FOURTEENTH AMENDMENTS ARISING IN THE CONTEXT OF A STATE CRIMINAL
TRIAL FOR THE COMMISSION OF A PARTICULARLY BRUTAL MURDER.  AS IN EVERY
CASE, OUR SINGLE DUTY IS TO DETERMINE THE ISSUES PRESENTED IN ACCORD
WITH THE CONSTITUTION AND THE LAW. 

PAMELA MASON, A 14-YEAR OLD GIRL, LEFT HER HOME IN MANCHESTER, NEW
HAMPSHIRE, ON THE EVENING OF JANUARY 13, 1964, DURING A HEAVY
SNOWSTORM, APPARENTLY IN RESPONSE TO A MAN'S TELEPHONE CALL FOR A
BABYSITTER.  EIGHT DAYS LATER, AFTER A THAW, HER BODY WAS FOUND BY THE
SIDE OF A MAJOR NORTH-SOUTH HIGHWAY SEVERAL MILES AWAY.  SHE HAD BEEN
MURDERED.  THE EVENT CREATED GREAT ALARM IN THE AREA, AND THE POLICE
IMMEDIATELY BEGAN A MASSIVE INVESTIGATION. 

ON JANUARY 28, HAVING LEARNED FROM A NEIGHBOR THAT THE PETITIONER,
EDWARD COOLIDGE, HAD BEEN AWAY FROM HOME ON THE EVENING OF THE GIRL'S
DISAPPEARANCE, THE POLICE WENT TO HIS HOUSE TO QUESTION HIM.  THEY
ASKED HIM, AMONG OTHER THINGS, IF HE OWNED ANY GUNS, AND HE PRODUCED
THREE, TWO SHOTGUNS AND A RIFLE.  THEY ALSO ASKED WHETHER HE WOULD TAKE
A LIE-DETECTOR TEST CONCERNING HIS ACCOUNT OF HIS ACTIVITIES ON THE
NIGHT OF THE DISAPPEARANCE.  HE AGREED TO DO SO ON THE FOLLOWING
SUNDAY, HIS DAY OFF.  THE POLICE LATER DESCRIBED HIS ATTITUDE ON THE
OCCASION OF THIS VISIT AS FULLY "COOPERATIVE."  HIS WIFE WAS IN THE
HOUSE THROUGHOUT THE INTERVIEW. 

ON THE FOLLOWING SUNDAY, A POLICEMAN CALLED COOLIDGE EARLY IN THE
MORNING AND ASKED HIM TO COME DOWN TO THE POLICE STATION FOR THE TRIP
TO CONCORD, NEW HAMPSHIRE, WHERE THE LIE-DETECTOR TEST WAS TO BE
ADMINISTERED.  THAT EVENING, TWO PLAINCLOTHES POLICEMEN ARRIVED AT THE
COOLIDGE HOUSE, WHERE MRS. COOLIDGE WAS WAITING WITH HER MOTHER-IN-LAW
FOR HER HUSBAND'S RETURN.  THESE TWO POLICEMEN WERE NOT THE TWO WHO HAD
VISITED THE HOUSE EARLIER IN THE WEEK, AND THEY APPARENTLY DID NOT KNOW
THAT COOLIDGE HAD DISPLAYED THREE GUNS FOR INSPECTION DURING THE
EARLIER VISIT.  THE PLAINCLOTHESMEN TOLD MRS. COOLIDGE THAT HER HUSBAND
WAS IN "SERIOUS TROUBLE" AND PROBABLY WOULD NOT BE HOME THAT NIGHT. 
THEY ASKED COOLIDGE'S MOTHER TO LEAVE, AND PROCEEDED TO QUESTION MRS.
COOLIDGE.  DURING THE COURSE OF THE INTERVIEW THEY OBTAINED FROM HER
FOUR GUNS BELONGING TO COOLIDGE, AND SOME CLOTHES THAT MRS. COOLIDGE
THOUGHT HER HUSBAND MIGHT HAVE BEEN WEARING ON THE EVENING OF PAMELA
MASON'S DISAPPEARANCE. 

COOLIDGE WAS HELD IN JAIL ON AN UNRELATED CHARGE THAT NIGHT, BUT HE
WAS RELEASED THE NEXT DAY.  /1/  DURING THE ENSUING TWO AND A HALF
WEEKS, THE STATE ACCUMULATED A QUANTITY OF EVIDENCE TO SUPPORT THE
THEORY THAT IT WAS HE WHO HAD KILLED PAMELA MASON.  ON FEBRUARY 19, THE
RESULTS OF THE INVESTIGATION WERE PRESENTED AT A MEETING BETWEEN THE
POLICE OFFICERS WORKING ON THE CASE AND THE STATE ATTORNEY GENERAL, WHO
HAD PERSONALLY TAKEN CHARGE OF ALL POLICE ACTIVITIES RELATING TO THE
MURDER, AND WAS LATER TO SERVE AS CHIEF PROSECUTOR AT THE TRIAL.  AT
THIS MEETING, IT WAS DECIDED THAT THERE WAS ENOUGH EVIDENCE TO JUSTIFY
THE ARREST OF COOLIDGE ON THE MURDER CHARGE AND A SEARCH OF HIS HOUSE
AND TWO CARS.  AT THE CONCLUSION OF THE MEETING, THE MANCHESTER POLICE
CHIEF MADE FORMAL APPLICATION, UNDER OATH, FOR THE ARREST AND SEARCH
WARRANTS.  THE COMPLAINT SUPPORTING THE WARRANT FOR A SEARCH OF
COOLIDGE'S PONTIAC AUTOMOBILE, THE ONLY WARRANT THAT CONCERNS US HERE,
STATED THAT THE AFFIANT "HAS PROBABLE CAUSE TO SUSPECT AND BELIEVE, AND
DOES SUSPECT AND BELIEVE, AND HEREWITH OFFERS SATISFACTORY EVIDENCE,
THAT THERE ARE CERTAIN OBJECTS AND THINGS USED IN THE COMMISSION OF
SAID OFFENSE, NOW KEPT, AND CONCEALED IN OR UPON A CERTAIN VEHICLE, TO
WIT:  1951 PONTIAC TWO-DOOR SEDAN . . . " THE WARRANTS WERE THEN SIGNED
AND ISSUED BY THE ATTORNEY GENERAL HIMSELF, ACTING AS A JUSTICE OF THE
PEACE.  UNDER NEW HAMPSHIRE LAW IN FORCE AT THAT TIME, ALL JUSTICES OF
THE PEACE WERE AUTHORIZED TO ISSUE SEARCH WARRANTS.  N.H. REV. STAT.
ANN. SEC. 595:1 (REPEALED 1969). 

THE POLICE ARRESTED COOLIDGE IN HIS HOUSE ON THE DAY THE WARRANT
ISSUED.  MRS. COOLIDGE ASKED WHETHER SHE MIGHT REMAIN IN THE HOUSE WITH
HER SMALL CHILD, BUT WAS TOLD THAT SHE MUST STAY ELSEWHERE, APPARENTLY
IN PART BECAUSE THE POLICE BELIEVED THAT SHE WOULD BE HARASSED BY
REPORTERS IF SHE WERE ACCESSIBLE TO THEM.  WHEN SHE ASKED WHETHER SHE
MIGHT TAKE HER CAR, SHE WAS TOLD THAT BOTH CARS HAD BEEN "IMPOUNDED,"
AND THAT THE POLICE WOULD PROVIDE TRANSPORTATION FOR HER.  SOME TIME
LATER, THE POLICE CALLED A TOWING COMPANY, AND ABOUT TWO AND A HALF
HOURS AFTER COOLIDGE HAD BEEN TAKEN INTO CUSTODY THE CARS WERE TOWED TO
THE POLICE STATION.  IT APPEARS THAT AT THE TIME OF THE ARREST THE CARS
WERE PARKED IN THE COOLIDGE DRIVEWAY, AND THAT ALTHOUGH DARK HAD FALLEN
THEY WERE PLAINLY VISIBLE BOTH FROM THE STREET AND FROM INSIDE THE
HOUSE WHERE COOLIDGE WAS ACTUALLY ARRESTED.  THE 1951 PONTIAC WAS
SEARCHED AND VACUUMED ON FEBRUARY 21, TWO DAYS AFTER IT WAS SEIZED,
AGAIN A YEAR LATER, IN JANUARY 1965, AND A THIRD TIME IN APRIL 1965. 

AT COOLIDGE'S SUBSEQUENT JURY TRIAL ON THE CHARGE OF MURDER, VACUUM
SWEEPINGS, INCLUDING PARTICLES OF GUN POWDER, TAKEN FROM THE PONTIAC
WERE INTRODUCED IN EVIDENCE AGAINST HIM, AS PART OF AN ATTEMPT BY THE
STATE TO SHOW BY MICROSCOPIC ANALYSIS THAT IT WAS HIGHLY PROBABLE THAT
PAMELA MASON HAD BEEN IN COOLIDGE'S CAR.  /2/  ALSO INTRODUCED IN
EVIDENCE WAS ONE OF THE GUNS TAKEN BY THE POLICE ON THEIR SUNDAY
EVENING VISIT TO THE COOLIDGE HOUSE-- A .22-CALIBER MOSSBERG RIFLE,
WHICH THE PROSECUTION CLAIMED WAS THE MURDER WEAPON.  CONFLICTING
BALLISTICS TESTIMONY WAS OFFERED ON THE QUESTION WHETHER THE BULLETS
FOUND IN PAMELA MASON'S BODY HAD BEEN FIRED FROM THIS RIFLE.  FINALLY,
THE PROSECUTION INTRODUCED VACUUM SWEEPINGS OF THE CLOTHES TAKEN FROM
THE COOLIDGE HOUSE THAT SAME SUNDAY EVENING, AND ATTEMPTED TO SHOW
THROUGH MICROSCOPIC ANALYSIS THAT THERE WAS A HIGH PROBABILITY THAT THE
CLOTHES HAD BEEN IN CONTACT WITH PAMELA MASON'S BODY.  PRETRIAL MOTIONS
TO SUPPRESS ALL THIS EVIDENCE WERE REFERRED BY THE TRIAL JUDGE TO THE
NEW HAMPSHIRE SUPREME COURT, WHICH RULED THE EVIDENCE ADMISSIBLE.  106
N.H. 186, 208 A.2D 322.  THE JURY FOUND COOLIDGE GUILTY AND HE WAS
SENTENCED TO LIFE IMPRISONMENT.  THE NEW HAMPSHIRE SUPREME COURT
AFFIRMED THE JUDGMENT OF CONVICTION, 109 N.H. 403, 260 A.2D 547, AND WE
GRANTED CERTIORARI TO CONSIDER THE CONSTITUTIONAL QUESTIONS RAISED BY
THE ADMISSION OF THIS EVIDENCE AGAINST COOLIDGE AT HIS TRIAL.  399 U.S.
926. 

        I 

THE PETITIONER'S FIRST CLAIM IS THAT THE WARRANT AUTHORIZING THE
SEIZURE AND SUBSEQUENT SEARCH OF HIS 1951 PONTIAC AUTOMOBILE WAS
INVALID BECAUSE NOT ISSUED BY A "NEUTRAL AND DETACHED MAGISTRATE." 
SINCE WE AGREE WITH THE PETITIONER THAT THE WARRANT WAS INVALID FOR
THIS REASON, WE NEED NOT CONSIDER HIS FURTHER ARGUMENT THAT THE
ALLEGATIONS UNDER OATH SUPPORTING THE ISSUANCE OF THE WARRANT WERE SO
CONCLUSORY AS TO VIOLATE RELEVANT CONSTITUTIONAL STANDARDS.  CF.
GIORDENELLO V. UNITED STATES, 357 U.S. 480; AGUILAR V. TEXAS, 378 U.S.
108. 

THE CLASSIC STATEMENT OF THE POLICY UNDERLYING THE WARRANT
REQUIREMENT OF THE FOURTH AMENDMENT IS THAT OF MR. JUSTICE JACKSON,
WRITING FOR THE COURT IN JOHNSON V. UNITED STATES, 333 U.S. 10, 13-14: 

      "THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT
GRASPED

  BY ZEALOUS OFFICERS, IS NOT THAT IT DENIES LAW ENFORCEMENT THE

  SUPPORT OF THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM

  EVIDENCE.  ITS PROTECTION CONSISTS IN REQUIRING THAT THOSE

  INFERENCES BE DRAWN BY A NEUTRAL AND DETACHED MAGISTRATE INSTEAD

  OF BEING JUDGED BY THE OFFICER ENGAGED IN THE OFTEN COMPETITIVE

  ENTERPRISE OF FERRETING OUT CRIME.  ANY ASSUMPTION THAT EVIDENCE

  SUFFICIENT TO SUPPORT A MAGISTRATE'S DISINTERESTED DETERMINATION

  TO ISSUE A SEARCH WARRANT WILL JUSTIFY THE OFFICERS IN MAKING A

  SEARCH WITHOUT A WARRANT WOULD REDUCE THE AMENDMENT TO A NULLITY

  AND LEAVE THE PEOPLE'S HOMES SECURE ONLY IN THE DISCRETION OF

  POLICE OFFICERS.  . . . WHEN THE RIGHT OF PRIVACY MUST REASONABLY

  YIELD TO THE RIGHT OF SEARCH IS, AS A RULE, TO BE DECIDED BY A

  JUDICIAL OFFICER, NOT BY A POLICEMAN OR GOVERNMENT ENFORCEMENT

  AGENT." 

CF. UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 464; GIORDENELLO V.
UNITED STATES, SUPRA, AT 486.  WONG SUN V. UNITED STATES, 371 U.S. 471,
481-482; KATZ V. UNITED STATES, 389 U.S. 347, 356-357. 

IN THIS CASE, THE DETERMINATION OF PROBABLE CAUSE WAS MADE BY THE
CHIEF "GOVERNMENT ENFORCEMENT AGENT" OF THE STATE-- THE ATTORNEY
GENERAL-- WHO WAS ACTIVELY IN CHARGE OF THE INVESTIGATION AND LATER WAS
TO BE CHIEF PROSECUTOR AT THE TRIAL.  TO BE SURE, THE DETERMINATION WAS
FORMALIZED HERE BY A WRITING BEARING THE TITLE "SEARCH WARRANT,"
WHEREAS IN JOHNSON THERE WAS NO PIECE OF PAPER INVOLVED, BUT THE STATE
HAS NOT ATTEMPTED TO UPHOLD THE WARRANT ON ANY SUCH ARTIFICIAL BASIS. 
RATHER, THE STATE ARGUES THAT THE ATTORNEY GENERAL, WHO WAS
UNQUESTIONABLY AUTHORIZED AS A JUSTICE OF THE PEACE TO ISSUE WARRANTS
UNDER THEN-EXISTING STATE LAW, DID IN FACT ACT AS A "NEUTRAL AND
DETACHED MAGISTRATE."  FURTHER, THE STATE CLAIMS THAT ANY MAGISTRATE,
CONFRONTED WITH THE SHOWING OF PROBABLE CAUSE MADE BY THE MANCHESTER
CHIEF OF POLICE, WOULD HAVE ISSUED THE WARRANT IN QUESTION.  TO THE
FIRST PROPOSITION IT IS ENOUGH TO ANSWER THAT THERE COULD HARDLY BE A
MORE APPROPRIATE SETTING THAN THIS FOR A PER SE RULE OF
DISQUALIFICATION RATHER THAN A CASE-BY-CASE EVALUATION OF ALL THE
CIRCUMSTANCES.  WITHOUT DISRESPECT TO THE STATE LAW ENFORCEMENT AGENT
HERE INVOLVED, THE WHOLE POINT OF THE BASIC RULE SO WELL EXPRESSED BY
MR. JUSTICE JACKSON IS THAT PROSECUTORS AND POLICEMEN SIMPLY CANNOT BE
ASKED TO MAINTAIN THE REQUISITE NEUTRALITY WITH REGARD TO THEIR OWN
INVESTIGATIONS-- THE "COMPETITIVE ENTERPRISE" THAT MUST RIGHTLY ENGAGE
THEIR SINGLE-MINDED ATTENTION.  /3/  CF. MANCUSI V. DEFORTE, 392 U.S.
364, 371.  AS FOR THE PROPOSITION THAT THE EXISTENCE OF PROBABLE CAUSE
RENDERS NONCOMPLIANCE WITH THE WARRANT PROCEDURE AN IRRELEVANCE, IT IS
ENOUGH TO CITE AGNELLO V. UNITED STATES, 269 U.S. 20, 33, DECIDED IN
1925: 

"BELIEF, HOWEVER WELL FOUNDED, THAT AN ARTICLE SOUGHT IS CONCEALED
IN A DWELLING HOUSE FURNISHES NO JUSTIFICATION FOR A SEARCH OF THAT
PLACE WITHOUT A WARRANT.  AND SUCH SEARCHES ARE HELD UNLAWFUL
NOTWITHSTANDING FACTS UNQUESTIONABLY SHOWING PROBABLE CAUSE." 

SEE ALSO JONES V. UNITED STATES, 357 U.S. 493, 497-498; SILVERTHRONE
LUMBER CO. V. UNITED STATES, 251 U.S. 385, 392.  ("(THE RIGHTS . . .
AGAINST UNLAWFUL SEARCH AND SEIZURE ARE TO BE PROTECTED EVEN IF THE
SAME RESULT MIGHT HAVE BEEN ACHIEVED IN A LAWFUL WAY.") 

BUT THE NEW HAMPSHIRE SUPREME COURT, IN UPHOLDING THE CONVICTION,
RELIED UPON THE THEORY THAT EVEN IF THE WARRANT PROCEDURE HERE IN ISSUE
WOULD CLEARLY VIOLATE THE STANDARDS IMPOSED ON THE FEDERAL GOVERNMENT
BY THE FOURTH AMENDMENT, IT IS NOT FORBIDDEN THE STATES UNDER THE
FOURTEENTH.  THIS POSITION WAS PREMISED ON A PASSAGE FROM THE OPINION
OF THIS COURT IN KER V. CALIFORNIA, 374 U.S. 23, 31: 

     "PRELIMINARY TO OUR EXAMINATION.OF THE-SEARCH ANDSEIZURES

  INVOLVED HERE, IT MIGHT BE HELPFUL FOR US TO INDICATE WHAT WAS

  NOT DECIDED IN MAPP (V. OHIO, 367 U.S. 643).  FIRST, IT MUST BE

  RECOGNIZED THAT THE 'PRINCIPLES GOVERNING THE ADMISSIBILITY OF

  EVIDENCE IN FEDERAL CRIMINAL TRIALS HAVE NOT BEEN RESTRICTED . .

  . TO THOSE DERIVED SOLELY FROM THE CONSTITUTION.  IN THE EXERCISE

OF ITS SUPERVISORY AUTHORITY OVER THE ADMINISTRATION OF CRIMINAL

  JUSTICE IN THE FEDERAL COURTS . . . THIS COURT HAS . . .

  FORMULATED RULES OF EVIDENCE TO BE APPLIED IN FEDERAL CRIMINAL

  PROSECUTIONS.'  MCNABB V. UNITED STATES, 318 U.S. 332, 341 . . .

  MAPP, HOWEVER, ESTABLISHED NO ASSUMPTION BY THIS COURT OF

  SUPERVISORY AUTHORITY OVER STATE COURTS . . . AND, CONSEQUENTLY,

  IT IMPLIED NO TOTAL OBLITERATION OF STATE LAWS RELATING TO

  ARRESTS AND SEARCHES IN FAVOR OF FEDERAL LAW.  MAPP SOUNDED NO

  DEATH KNELL FOR OUR FEDERALISM; RATHER, IT ECHOED THE SENTIMENT

  OF ELKINS V. UNITED STATES, SUPRA, AT 221, THAT 'A HEALTHY

  FEDERALISM DEPENDS UPON THE AVOIDANCE OF NEEDLESS CONFLICT

BETWEEN STATE AND FEDERAL COURTS' BY ITSELF URGING THAT

'(FEDERAL-STATE COOPERATION IN THE SOLUTION OF CRIME UNDER

 CONSTITUTIONAL STANDARDS WILL BE PROMOTED, IF ONLY BY RECOGNITION

  OF THEIR NOW MUTUAL OBLIGATION TO RESPECT THE SAME FUNDAMENTAL

  CRITERIA IN THEIR APPROACHES.'  367 U.S.,AT 658."  (EMPHASIS IN

  KER.) 

IT IS URGED THAT THE NEW HAMPSHIRE STATUTES WHICH AT THE TIME OF THE
SEARCHES HERE INVOLVED PERMITTED A LAW ENFORCEMENT OFFICER HIMSELF TO
ISSUE A WARRANT WAS ONE OF THOSE "WORKABLE RULES GOVERNING ARRESTS,
SEARCHES AND SEIZURES TO MEET 'THE PRACTICAL DEMANDS OF EFFECTIVE
CRIMINAL INVESTIGATION AND LAW ENFORCEMENT' IN THE STATES," ID., AT 34,
AUTHORIZED BY KER. 

THAT SUCH A PROCEDURE WAS INDEED WORKABLE FROM THE POINT OF VIEW OF
THE POLICE IS EVIDENT FROM TESTIMONY AT THE TRIAL IN THIS CASE: 

     "THE COURT:  YOU MEAN THAT ANOTHER POLICE OFFICER ISSUES THESE
(SEARCH WARRANTS)? 

     "THE WITNESS:  YES.  CAPTAIN COUTURE AND CAPTAIN SHEA AND
CAPTAIN LOVEREN ARE J.P.'S. 

     "THE COURT:  WELL, LET ME ASK YOU, CHIEF, YOUR ANSWER IS TO
THE

  EFFECT THAT YOU NEVER GO OUT OF THE DEPARTMENT FOR THE JUSTICE OF

 THE PEACE? 

     "THE WITNESS:  IT HASN'T BEEN OUR-- POLICY TO GO OUT OF THE
DEPARTMENT. 

     "Q.  RIGHT.  YOUR POLICY AND EXPERIENCE, IS TO HAVE A FELLOW

  POLICE OFFICER TAKE THE WARRANT IN THE CAPACITY OF JUSTICE OF THE

  PEACE? 

     "A.  THAT HAS BEEN OUR PRACTICE." 

BUT IT IS TOO PLAIN FOR EXTENSIVE DISCUSSION THAT THIS NOW ABANDONED
NEW HAMPSHIRE METHOD OF ISSUING "SEARCH WARRANTS" VIOLATED A
FUNDAMENTAL PREMISE OF BOTH THE FOURTH AND FOURTEENTH AMENDMENTS-- A
PREMISE FULLY DEVELOPED AND ARTICULATED LONG BEFORE THIS COURT'S
DECISIONS IN KER V. CALIFORNIA, SUPRA, AND MAPP V. OHIO, 367 U.S. 643. 
AS MR. JUSTICE FRANKFURTER PUT IT IN WOLF V. COLORADO, 338 U.S. 25, 27
28: 

     "THE SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY INTRUSION BY

  THE POLICE-- WHICH IS AT THE CORE OF THE FOURTH AMENDMENT-- IS

  BASIC TO A FREE SOCIETY.  IT IS THEREFORE IMPLICIT IN 'THE

  CONCEPT OF ORDERED LIBERTY' AND AS SUCH ENFORCEABLE AGAINST THE

  STATES THROUGH THE DUE PROCESS CLAUSE.  THE KNOCK AT THE DOOR,

 WHETHER BY DAY OR BY NIGHT, AS A PRELUDE TO A SEARCH, WITHOUT

  AUTHORITY OF LAW BUT SOLELY ON THE AUTHORITY OF THE POLICE, DID

  NOT NEED THE COMMENTARY OF RECENT HISTORY TO BE CONDEMNED . . .

  " 

WE FIND NO ESCAPE FROM THE CONCLUSION THAT THE SEIZURE AND SEARCH OF
THE PONTIAC AUTOMOBILE CANNOT CONSTITUTIONALLY REST UPON THE WARRANT
ISSUED BY THE STATE OFFICIAL WHO WAS THE CHIEF INVESTIGATOR AND
PROSECUTOR IN THIS CASE.  SINCE HE WAS NOT THE NEUTRAL AND DETACHED
MAGISTRATE REQUIRED BY THE CONSTITUTION, THE SEARCH STANDS ON NO FIRMER
GROUND, THAN IF THERE HAD BEEN NO WARRANT AT ALL.  IF THE SEIZURE AND
SEARCH ARE TO BE JUSTIFIED, THEY MUST, THEREFORE, BE JUSTIFIED ON SOME
OTHER THEORY. 

        II 

THE STATE PROPOSES THREE DISTINCT THEORIES TO BRING THE FACTS OF
THIS CASE WITHIN ONE OR ANOTHER OF THE EXCEPTIONS TO THE WARRANT
REQUIREMENT.  IN CONSIDERING THEM, WE MUST NOT LOSE SIGHT OF THE FOURTH
AMENDMENT'S FUNDAMENTAL GUARANTEE.  MR. JUSTICE BRADLEY'S ADMONITION IN
HIS OPINION FOR THE COURT ALMOST A CENTURY AGO IN BOYD V. UNITED
STATES, 116 U.S. 616, 635, IS WORTH REPEATING HERE: 

"IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS MILDEST AND LEAST
REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET
THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT APPROACHES AND
SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE.  THIS CAN ONLY BE
OBVIATED BY ADHERING TO THE RULE THAT CONSTITUTIONAL PROVISIONS FOR THE
SECURITY OF PERSON AND PROPERTY SHOULD BE LIBERALLY CONSTRUED.  A CLOSE
AND LITERAL CONSTRUCTION DEPRIVES THEM OF HALF THEIR EFFICACY, AND
LEADS TO GRADUAL DEPRECIATION OF THE RIGHT, AS IF IT CONSISTED MORE IN
SOUND THAN IN SUBSTANCE.  IT IS THE DUTY OF COURTS TO BE WATCHFUL FOR
THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST ANY STEALTHY
ENCROACHMENTS THEREON."  /4/ 

THUS THE MOST BASIC CONSTITUTIONAL RULE IN THIS AREA IS THAT
"SEARCHES CONDUCTED OUTSIDE THE JUDICIAL PROCESS, WITHOUT PRIOR
APPROVAL BY JUDGE OR MAGISTRATE, ARE PER SE UNREASONABLE UNDER THE
FOURTH AMENDMENT-- SUBJECT ONLY TO A FEW SPECIFICALLY ESTABLISHED AND
WELL-DELINEATED EXCEPTIONS."  /5/  THE EXCEPTIONS ARE "JEALOUSLY AND
CAREFULLY DRAWN,"  /6/  AND THERE MUST BE "A SHOWING BY THOSE WHO SEEK
EXEMPTION . . . THAT THE EXIGENCIES OF THE SITUATION MADE THAT COURSE
IMPERATIVE."  /7/  "(THE BURDEN IS ON THOSE SEEKING THE EXEMPTION TO
SHOW THE NEED FOR IT."  /8/  IN TIMES OF UNREST, WHETHER CAUSED BY
CRIME OR RACIAL CONFLICT OR FEAR OF INTERNAL SUBVERSION, THIS BASIC LAW
AND THE VALUES THAT IT REPRESENTS MAY APPEAR UNREALISTIC OR
"EXTRAVAGANT" TO SOME.  BUT THE VALUES WERE THOSE OF THE AUTHORS OF OUR
FUNDAMENTAL CONSTITUTIONAL CONCEPTS.  IN TIMES NOT ALTOGETHER UNLIKE
OUR OWN THEY WON-- BY LEGAL AND CONSTITUTIONAL MEANS IN ENGLAND, /9/
AND BY REVOLUTION ON THIS CONTINENT-- A RIGHT OF PERSONAL SECURITY
AGAINST ARBITRARY INTRUSIONS BY OFFICIAL POWER.  IF TIMES HAVE CHANGED,
REDUCING EVERYMAN'S SCOPE TO DO AS HE PLEASES IN AN URBAN AND
INDUSTRIAL WORLD, THE CHANGES HAVE MADE THE VALUES SERVED BY THE FOURTH
AMENDMENT MORE, NOT LESS, IMPORTANT.  /10/

        A 

THE STATE'S FIRST THEORY IS THAT THE SEIZURE ON FEBRUARY 19 AND
SUBSEQUENT SEARCH OF COOLIDGE'S PONTIAC WERE "INCIDENT" TO A VALID
ARREST.  WE ASSUME THAT THE ARREST OF COOLIDGE INSIDE HIS HOUSE WAS
VALID, SO THAT THE FIRST CONDITION OF A WARRANTLESS "SEARCH INCIDENT"
IS MET.  WHITELEY V. WARDEN, 401 U.S. 560, 567 N. 11.  AND SINCE THE
EVENTS IN ISSUE TOOK PLACE IN 1964, WE ASSESS THE STATE'S ARGUMENT IN
TERMS OF THE LAW AS IT EXISTED BEFORE CHIMEL V. CALIFORNIA, 395 U.S.
752, WHICH SUBSTANTIALLY RESTRICTED THE "SEARCH INCIDENT"  EXCEPTION TO
THE WARRANT REQUIREMENT, BUT DID SO ONLY PROSPECTIVELY.  WILLIAMS V.
UNITED STATES, 401 U.S. 646.  BUT EVEN UNDER PRE-CHIMEL LAW, THE
STATE'S POSITION IS UNTENABLE. 

THE LEADING CASE IN THE AREA BEFORE CHIMEL WAS UNITED STATES V.
RABINOWITZ, 339 U.S. 56, WHICH WAS TAKEN TO STAND "FOR THE PROPOSITION,
INTER ALIA, THAT A WARRANTLESS SEARCH 'INCIDENT TO A LAWFUL ARREST' MAY
GENERALLY EXTEND TO THE AREA THAT IS CONSIDERED TO BE IN THE
'POSSESSION' OR UNDER THE 'CONTROL' OF THE PERSON ARRESTED."  CHIMEL,
SUPRA, AT 760.  IN THIS CASE, COOLIDGE WAS ARRESTED INSIDE HIS HOUSE;
HIS CAR WAS OUTSIDE IN THE DRIVEWAY.  THE CAR WAS NOT TOUCHED UNTIL
COOLIDGE HAD BEEN REMOVED FROM THE SCENE.  IT WAS THEN SEIZED AND TAKEN
TO THE STATION, BUT IT WAS NOT ACTUALLY SEARCHED UNTIL TWO DAYS LATER. 

FIRST, IT IS DOUBTFUL WHETHER THE POLICE COULD HAVE CARRIED OUT A
CONTEMPORANEOUS SEARCH OF THE CAR UNDER RABINOWITZ STANDARDS.  FOR THIS
COURT HAS REPEATEDLY HELD THAT, EVEN UNDER RABINOWITZ, "(A) SEARCH MAY
BE INCIDENT TO AN ARREST '"ONLY IF IT IS SUBSTANTIALLY CONTEMPORANEOUS
WITH THE ARREST AND IS CONFINED TO THE IMMEDIATE VICINITY OF THE
ARREST.  . . . "'" VALE V. LOUISIANA, 399 U.S. 30, 33, QUOTING FROM
SHIPLEY V. CALIFORNIA, 395 U.S. 818, 819, QUOTING FROM STONER V.
CALIFORNIA, 376 U.S. 483, 486.  (EMPHASIS IN SHIPLEY.)  CF. AGNELLO V.
UNITED STATES, 269 U.S.,AT 30-31; JAMES V. LOUISIANA, 382 U.S. 36. 
THESE CASES MAKE IT CLEAR BEYOND ANY QUESTION THAT A LAWFUL PRE-CHIMEL
ARREST OF A SUSPECT OUTSIDE HIS HOUSE COULD NEVER BY ITSELF JUSTIFY A
WARRANTLESS SEARCH INSIDE THE HOUSE.  THERE IS NOTHING IN SEARCH
INCIDENT DOCTRINE (AS OPPOSED TO THE SPECIAL RULES FOR AUTOMOBILES AND
EVIDENCE IN "PLAIN VIEW," TO BE CONSIDERED BELOW) THAT SUGGESTS A
DIFFERENT RESULT WHERE THE ARREST IS MADE INSIDE THE HOUSE AND THE
SEARCH OUTSIDE AND AT SOME DISTANCE AWAY.  /11/ 

EVEN ASSUMING, ARGUENDO, THAT THE POLICE MIGHT HAVE SEARCHED THE
PONTIAC IN THE DRIVEWAY WHEN THEY ARRESTED COOLIDGE IN THE HOUSE,
PRESTON V. UNITED STATES, 376 U.S. 364, MAKES PLAIN THAT THEY COULD NOT
LEGALLY SEIZE THE CAR, REMOVE IT, AND SEARCH IT AT THEIR LEISURE
WITHOUT A WARRANT.  IN CIRCUMSTANCES VIRTUALLY IDENTICAL TO THOSE HERE,
MR. JUSTICE BLACK'S OPINION FOR A UNANIMOUS COURT HELD THAT "(ONCE AN
ACCUSED IS UNDER ARREST AND IN CUSTODY, THEN A SEARCH (OF HIS CAR) MADE
AT ANOTHER PLACE, WITHOUT A WARRANT, IS SIMPLY NOT INCIDENT TO THE
ARREST."  ID., AT 367.  DYKE V. TAYLOR IMPLEMENT MFG. CO., 391 U.S.
216.  CF. CHAMBERS V. MARONEY, 399 U.S. 42, 47.  SEARCH-INCIDENT
DOCTRINE, IN SHORT, HAS NO APPLICABILITY TO THIS CASE.  /12/
B 

THE SECOND THEORY PUT FORWARD BY THE STATE TO JUSTIFY A WARRANTLESS
SEIZURE AND SEARCH OF THE PONTIAC CAR IS THAT UNDER CARROLL V. UNITED
STATES, 267 U.S. 132, THE POLICE MAY MAKE A WARRANTLESS SEARCH OF AN
AUTOMOBILE WHENEVER THEY HAVE PROBABLE CAUSE TO DO SO, AND, UNDER OUR
DECISION LAST TERM IN CHAMBERS V. MARONEY, 399 U.S. 42, WHENEVER THE
POLICE MAY MAKE A LEGAL CONTEMPORANEOUS SEARCH UNDER CARROLL, THEY MAY
ALSO SEIZE THE CAR, TAKE IT TO THE POLICE STATION, AND SEARCH IT
THERE.  BUT EVEN GRANTING THAT THE POLICE HAD PROBABLE CAUSE TO SEARCH
THE CAR, THE APPLICATION OF THE CARROLL CASE TO THESE FACTS WOULD
EXTEND IT FAR BEYOND ITS ORIGINAL RATIONALE. 

CARROLL DID INDEED HOLD THAT "CONTRABAND GOODS CONCEALED AND
ILLEGALLY TRANSPORTED IN AN AUTOMOBILE OR OTHER VEHICLE MAY BE SEARCHED
FOR WITHOUT A WARRANT,"  /13/  PROVIDED THAT "THE SEIZING OFFICER SHALL
HAVE REASONABLE OR PROBABLE CAUSE FOR BELIEVING THAT THE AUTOMOBILE
WHICH HE STOPS AND SEIZES HAS CONTRABAND LIQUOR THEREIN WHICH IS BEING
ILLEGALLY TRANSPORTED."  /14/  SUCH SEARCHES HAD BEEN EXPLICITLY
AUTHORIZED BY CONGRESS, AND, AS WE HAVE POINTED OUT ELSEWHERE, /15/  IN
THE CONDITIONS OF THE TIME "(AN AUTOMOBILE . . . WAS AN ALMOST
INDISPENSABLE INSTRUMENTALITY IN LARGE-SCALE VIOLATION OF THE NATIONAL
PROHIBITION ACT, AND THE CAR ITSELF THEREFORE WAS TREATED SOMEWHAT AS
AN OFFENDER AND BECAME CONTRABAND."  IN TWO LATER CASES, /16/  EACH
INVOLVING AN OCCUPIED AUTOMOBILE STOPPED ON THE OPEN HIGHWAY AND
SEARCHED FOR CONTRABAND LIQUOR, THE COURT FOLLOWED AND REAFFIRMED
CARROLL.  /17/  AND LAST TERM IN CHAMBERS, SUPRA, WE DID SO AGAIN. 

THE UNDERLYING RATIONALE OF CARROLL AND OF ALL THE CASES THAT HAVE
FOLLOWED IT IS THAT THERE IS 

"A NECESSARY DIFFERENCE BETWEEN A SEARCH OF A STORE, DWELLING HOUSE
OR OTHER STRUCTURE IN RESPECT OF WHICH A PROPER OFFICIAL WARRANT
READILY MAY BE OBTAINED, AND A SEARCH OF A SHIP, MOTOR BOAT, WAGON OR
AUTOMOBILE, FOR CONTRABAND GOODS, WHERE IT IS NOT PRACTICABLE TO SECURE
A WARRANT BECAUSE THE VEHICLE CAN BE QUICKLY MOVED OUT OF THE LOCALITY
OR JURISDICTION IN WHICH THE WARRANT MUST BE SOUGHT."  267 U.S.,AT
153. 

AS WE SAID IN CHAMBERS, SUPRA, AT 51, "EXIGENT CIRCUMSTANCES"
JUSTIFY THE WARRANTLESS SEARCH OF "AN AUTOMOBILE STOPPED ON THE
HIGHWAY," WHERE THERE IS PROBABLE CAUSE, BECAUSE THE CAR IS "MOVABLE,
THE OCCUPANTS ARE ALERTED, AND THE CAR'S CONTENTS MAY NEVER BE FOUND
AGAIN IF A WARRANT MUST BE OBTAINED."  "(THE OPPORTUNITY TO SEARCH IS
FLEETING . . . " 

IN THIS CASE, THE POLICE HAD KNOWN FOR SOME TIME OF THE PROBABLE
ROLE OF THE PONTIAC CAR IN THE CRIME.  COOLIDGE WAS AWARE THAT HE WAS A
SUSPECT IN THE MASON MURDER, BUT HE HAD BEEN EXTREMELY COOPERATIVE
THROUGHOUT THE INVESTIGATION, AND THERE WAS NO INDICATION THAT HE MEANT
TO FLEE.  HE HAD ALREADY HAD AMPLE OPPORTUNITY TO DESTROY ANY EVIDENCE
HE THOUGHT INCRIMINATING.  THERE IS NO SUGGESTION THAT, ON THE NIGHT IN
QUESTION, THE CAR WAS BEING USED FOR ANY ILLEGAL PURPOSE, AND IT WAS
REGULARLY PARKED IN THE DRIVEWAY OF HIS HOUSE.  THE OPPORTUNITY FOR
SEARCH WAS THUS HARDLY "FLEETING."  THE OBJECTS THAT THE POLICE ARE
ASSUMED TO HAVE HAD PROBABLE CAUSE TO SEARCH FOR IN THE CAR WERE
NEITHER STOLEN NOR CONTRABAND NOR DANGEROUS. 

WHEN THE POLICE ARRIVED AT THE COOLIDGE HOUSE TO ARREST HIM, TWO
OFFICERS WERE SENT TO GUARD THE BACK DOOR WHILE THE MAIN PARTY
APPROACHED FROM THE FRONT.  COOLIDGE WAS ARRESTED INSIDE THE HOUSE,
WITHOUT RESISTANCE OF ANY KIND ON HIS PART, AFTER HE HAD VOLUNTARILY
ADMITTED THE OFFICERS AT BOTH FRONT AND BACK DOORS.  THERE WAS NO WAY
IN WHICH HE COULD CONCEIVABLY HAVE GAINED ACCESS TO THE AUTOMOBILE
AFTER THE POLICE ARRIVED ON HIS PROPERTY.  WHEN COOLIDGE HAD BEEN TAKEN
AWAY, THE POLICE INFORMED MRS. COOLIDGE, THE ONLY OTHER ADULT OCCUPANT
OF THE HOUSE, THAT SHE AND HER BABY HAD TO SPEND THE NIGHT ELSEWHERE
AND THAT SHE COULD NOT USE EITHER OF THE COOLIDGE CARS.  TWO POLICE
OFFICERS THEN DROVE HER IN A POLICE CAR TO THE HOUSE OF A RELATIVE IN
ANOTHER TOWN, AND THEY STAYED WITH HER THERE UNTIL AROUND MIDNIGHT,
LONG AFTER THE POLICE HAD HAD THE PONTIAC TOWED TO THE STATION HOUSE. 
THE COOLIDGE PREMISES WERE GUARDED THROUGHOUT THE NIGHT BY TWO
POLICEMEN.  /18/ 

THE WORD "AUTOMOBILE" IS NOT A TALISMAN IN WHOSE PRESENCE THE FOURTH
AMENDMENT FADES AWAY AND DISAPPEARS.  AND SURELY THERE IS NOTHING IN
THIS CASE TO INVOKE THE MEANING AND PURPOSE OF THE RULE OF CARROLL V.
UNITED STATES-- NO ALERTED CRIMINAL BENT ON FLIGHT, NO FLEETING
OPPORTUNITY ON AN OPEN HIGHWAY AFTER A HAZARDOUS CHASE, NO CONTRABAND
OR STOLEN GOODS OR WEAPONS, NO CONFEDERATES WAITING TO MOVE THE
EVIDENCE, NOT EVEN THE INCONVENIENCE OF A SPECIAL POLICE DETAIL TO
GUARD THE IMMOBILIZED AUTOMOBILE.  IN SHORT, BY NO POSSIBLE STRETCH OF
THE LEGAL IMAGINATION CAN THIS BE MADE INTO A CASE WHERE "IT IS NOT
PRACTICABLE TO SECURE A WARRANT," CARROLL, SUPRA, AT 153, AND THE
"AUTOMOBILE EXCEPTION," DESPITE ITS LABEL, IS SIMPLY IRRELEVANT.  /19/ 

SINCE CARROLL WOULD NOT HAVE JUSTIFIED A WARRANTLESS SEARCH OF THE
PONTIAC AT THE TIME COOLIDGE WAS ARRESTED, THE LATER SEARCH AT THE
STATION HOUSE WAS PLAINLY ILLEGAL, AT LEAST SO FAR AS THE AUTOMOBILE
EXCEPTION IS CONCERNED.  CHAMBERS, SUPRA, IS OF NO HELP TO THE STATE,
SINCE THAT CASE HELD ONLY THAT, WHERE THE POLICE MAY STOP AND SEARCH AN
AUTOMOBILE UNDER CARROLL, THEY MAY ALSO SEIZE IT AND SEARCH IT LATER AT
THE POLICE STATION.  /20/  RATHER, THIS CASE IS CONTROLLED BY DYKE V.
TAYLOR IMPLEMENT MFG. CO., SUPRA.  THERE THE POLICE LACKED PROBABLE
CAUSE TO SEIZE OR SEARCH THE DEFENDANT'S AUTOMOBILE AT THE TIME OF HIS
ARREST, AND THIS WAS ENOUGH BY ITSELF TO CONDEMN THE SUBSEQUENT SEARCH
AT THE STATION HOUSE.  HERE THERE WAS PROBABLE CAUSE, BUT NO EXIGENT
CIRCUMSTANCES JUSTIFIED THE POLICE IN PROCEEDING WITHOUT A WARRANT.  AS
IN DYKE, THE LATER SEARCH AT THE STATION HOUSE WAS THEREFORE ILLEGAL. 
/21/

C 

THE STATE'S THIRD THEORY IN SUPPORT OF THE WARRANTLESS SEIZURE AND
SEARCH OF THE PONTIAC CAR IS THAT THE CAR ITSELF WAS AN
"INSTRUMENTALITY OF THE CRIME," AND AS SUCH MIGHT BE SEIZED BY THE
POLICE ON COOLIDGE'S PROPERTY BECAUSE IT WAS IN PLAIN VIEW.  SUPPOSING
THE SEIZURE TO BE THUS UNLAWFUL, THE CASE OF COOPER V. CALIFORNIA, 386
U.S. 58, IS SAID TO SUPPORT A SUBSEQUENT WARRANTLESS SEARCH AT THE
STATION HOUSE, WITH OR WITHOUT PROBABLE CAUSE.  OF COURSE, THE
DISTINCTION BETWEEN AN "INSTRUMENTALITY OF CRIME" AND "MERE EVIDENCE"
WAS DONE AWAY WITH BY WARDEN V. HAYDEN, 387 U.S. 294, AND WE MAY ASSUME
THAT THE POLICE HAD PROBABLE CAUSE TO SEIZE THE AUTOMOBILE.  /22/  BUT,
FOR THE REASONS THAT FOLLOW, WE HOLD THAT THE "PLAIN VIEW" EXCEPTION TO
THE WARRANT REQUIREMENT IS INAPPLICABLE TO THIS CASE.  SINCE THE
SEIZURE WAS THEREFORE ILLEGAL, IT IS UNNECESSARY TO CONSIDER THE
APPLICABILITY OF COOPER, SUPRA, TO THE SUBSEQUENT SEARCH.  /23/ 

IT IS WELL ESTABLISHED THAT UNDER CERTAIN CIRCUMSTANCES THE POLICE
MAYSEIZE EVIDENCE IN PLAIN VIEW WITHOUT A WARRANT.  BUT IT IS IMPORTANT
TO KEEP IN MIND THAT, IN THE VAST MAJORITY OF CASES, ANY EVIDENCE
SEIZED BY THE POLICE WILL BE IN PLAIN VIEW, AT LEAST AT THE MOMENT OF
SEIZURE.  THE PROBLEM WITH THE "PLAIN VIEW" DOCTRINE HAS BEEN TO
IDENTIFY THE CIRCUMSTANCES IN WHICH PLAIN VIEW HAS LEGAL SIGNIFICANCE
RATHER THAN BEING SIMPLY THE NORMAL CONCOMITANT OF ANY SEARCH, LEGAL OR
ILLEGAL. 

AN EXAMPLE OF THE APPLICABILITY OF THE "PLAIN VIEW" DOCTRINE IS THE
SITUATION IN WHICH THE POLICE HAVE A WARRANT TO SEARCH A GIVEN AREA FOR
SPECIFIED OBJECTS, AND IN THE COURSE OF THE SEARCH COME ACROSS SOME
OTHER ARTICLE OF INCRIMINATING CHARACTER.  CF. GO-BART IMPORTING CO. V.
UNITED STATES, 282 U.S. 344, 358; UNITED STATES V. LEFKOWITZ, 285 U.S.
452, 465; STEELE V. UNITED STATES, 267 U.S. 498; STANLEY V. GEORGIA,
394 U.S. 557, 571 (STEWART, J., CONCURRING IN RESULT).  WHERE THE
INITIAL INTRUSION THAT BRINGS THE POLICE WITHIN PLAIN VIEW OF SUCH AN
ARTICLE IS SUPPORTED, NOT BY A WARRANT, BUT BY ONE OF THE RECOGNIZED
EXCEPTIONS TO THE WARRANT REQUIREMENT, THE SEIZURE IS ALSO LEGITIMATE. 
THUS THE POLICE MAY INADVERTENTLY COME ACROSS EVIDENCE WHILE IN "HOT
PURSUIT" OF A FLEEING SUSPECT.  WARDEN V. HAYDEN, SUPRA; CF. HESTER V.
UNITED STATES, 265 U.S. 57.  AND AN OBJECT THAT COMES INTO VIEW DURING
A SEARCH INCIDENT TO ARREST THAT IS APPROPRIATELY LIMITED IN SCOPE
UNDER EXISTING LAW MAY BE SEIZED WITHOUT A WARRANT.  /24/  CHIMEL V.
CALIFORNIA, 395 U.S.,AT 762-763.  FINALLY, THE "PLAIN VIEW" DOCTRINE
HAS BEEN APPLIED WHERE A POLICE OFFICER IS NOT SEARCHING FOR EVIDENCE
AGAINST THE ACCUSED, BUT NONETHELESS INADVERTENTLY COMES ACROSS AN
INCRIMINATING OBJECT.  HARRIS V. UNITED STATES, 390 U.S. 234; FRAZIER
V. CUPP, 394 U.S. 731; KER V. CALIFORNIA, 374 U.S.,AT 43.  CF. LEWIS V.
UNITED STATES, 385 U.S. 206. 

WHAT THE "PLAIN VIEW" CASES HAVE IN COMMON IS THAT THE POLICE
OFFICER IN EACH OF THEM HAD A PRIOR JUSTIFICATION FOR AN INTRUSION IN
THE COURSE OF WHICH HE CAME INADVERTENTLY ACROSS A PIECE OF EVIDENCE
INCRIMINATING THE ACCUSED.  THE DOCTRINE SERVES TO SUPPLEMENT THE PRIOR
JUSTIFICATION-- WHETHER IT BE A WARRANT FOR ANOTHER OBJECT, HOT
PURSUIT, SEARCH INCIDENT TO LAWFUL ARREST, OR SOME OTHER LEGITIMATE
REASON FOR BEING PRESENT UNCONNECTED WITH A SEARCH DIRECTED AGAINST THE
ACCUSED-- AND PERMITS THE WARRANTLESS SEIZURE.  OF COURSE, THE
EXTENSION OF THE ORIGINAL JUSTIFICATION IS LEGITIMATE ONLY WHERE IT IS
IMMEDIATELY APPARENT TO THE POLICE THAT THEY HAVE EVIDENCE BEFORE THEM;
THE "PLAIN VIEW" DOCTRINE MAY NOT BE USED TO EXTEND A GENERAL
EXPLORATORY SEARCH FROM ONE OBJECT TO ANOTHER UNTIL SOMETHING
INCRIMINATING AT LAST EMERGES.  CF. STANLEY V. GEORGIA, SUPRA, AT 571
572 (STEWART, J., CONCURRING IN RESULT). 

THE RATIONALE FOR THE "PLAIN VIEW" EXCEPTION IS EVIDENT IF WE KEEP
IN MIND THE TWO DISTINCT CONSTITUTIONAL PROTECTIONS SERVED BY THE
WARRANT REQUIREMENT.  FIRST, THE MAGISTRATE'S SCRUTINY IS INTENDED TO
ELIMINATE ALTOGETHER SEARCHES NOT BASED ON PROBABLE CAUSE.  THE PREMISE
HERE IS THAT ANY INTRUSION IN THE WAY OF SEARCH OR SEIZURE IS AN EVIL,
SO THAT NO INTRUSION AT ALL IS JUSTIFIED WITHOUT A CAREFUL PRIOR
DETERMINATION OF NECESSITY.  SEE, E.G., MCDONALD V. UNITED STATES, 335
U.S. 451; WARDEN V. HAYDEN, 387 U.S. 294; KATZ V. UNITED STATES, 389
U.S. 347; CHIMEL V. CALIFORNIA, 395 U.S.,AT 761-762.  THE SECOND,
DISTINCT OBJECTIVE IS THAT THOSE SEARCHES DEEMED NECESSARY SHOULD BE AS
LIMITED AS POSSIBLE.  HERE, THE SPECIFIC EVIL IS THE "GENERAL WARRANT"
ABHORRED BY THE COLONISTS, AND THE PROBLEM IS NOT THAT OF INTRUSION PER
SE, BUT OF A GENERAL, EXPLORATORY RUMMAGING IN A PERSON'S BELONGINGS. 
SEE, E.G., BOYD V. UNITED STATES, 116 U.S.,AT 624-630; MARRON V. UNITED
STATES, 275 U.S. 192, 195-196; STANFORD V. TEXAS, 379 U.S. 476.  THE
WARRANT ACCOMPLISHES THIS SECOND OBJECTIVE BY REQUIRING A "PARTICULAR
DESCRIPTION" OF THE THINGS TO BE SEIZED. 

THE "PLAIN VIEW" DOCTRINE IS NOT IN CONFLICT WITH THE FIRST
OBJECTIVE BECAUSE PLAIN VIEW DOES NOT OCCUR UNTIL A SEARCH IS IN
PROGRESS.  IN EACH CASE, THIS INITIAL INTRUSION IS JUSTIFIED BY A
WARRANT OR BY AN EXCEPTION SUCH AS "HOT PURSUIT" OR SEARCH INCIDENT TO
A LAWFUL ARREST, OR BY AN EXTRANEOUS VALID REASON FOR THE OFFICER'S
PRESENCE.  AND, GIVEN THE INITIAL INTRUSION, THE SEIZURE OF AN OBJECT
IN PLAIN VIEW IS CONSISTENT WITH THE SECOND OBJECTIVE, SINCE IT DOES
NOT CONVERT THE SEARCH INTO A GENERAL OR EXPLORATORY ONE.  AS AGAINST
THE MINOR PERIL TO FOURTH AMENDMENT PROTECTIONS, THERE IS A MAJOR GAIN
IN EFFECTIVE LAW ENFORCEMENT.  WHERE, ONCE AN OTHERWISE LAWFUL SEARCH
IS IN PROGRESS, THE POLICE INADVERTENTLY COME UPON A PIECE OF EVIDENCE,
IT WOULD OFTEN BE A NEEDLESS INCONVENIENCE, AND SOMETIMES DANGEROUS--
TO THE EVIDENCE OR TO THE POLICE THEMSELVES-- TO REQUIRE THEM TO IGNORE
IT UNTIL THEY HAVE OBTAINED A WARRANT PARTICULARLY DESCRIBING IT. 

THE LIMITS ON THE DOCTRINE ARE IMPLICIT IN THE STATEMENT OF ITS
RATIONALE.  THE FIRST OF THESE IS THAT PLAIN VIEW ALONE IS NEVER ENOUGH
TO JUSTIFY THE WARRANTLESS SEIZURE OF EVIDENCE.  THIS IS SIMPLY A
COROLLARY OF THE FAMILIAR PRINCIPLE DISCUSSED ABOVE, THAT NO AMOUNT OF
PROBABLE CAUSE CAN JUSTIFY A WARRANTLESS SEARCH OR SEIZURE ABSENT
"EXIGENT CIRCUMSTANCES."  INCONTROVERTIBLE TESTIMONY OF THE SENSES THAT
AN INCRIMINATING OBJECT IS ON PREMISES BELONGING TO A CRIMINAL SUSPECT
MAY ESTABLISH THE FULLEST POSSIBLE MEASURE OF PROBABLE CAUSE.  BUT EVEN
WHERE THE OBJECT IS CONTRABAND, THIS COURT HAS REPEATEDLY STATED AND
ENFORCED THE BASIC RULE THAT THE POLICE MAY NOT ENTER AND MAKE A
WARRANTLESS SEIZURE.  TAYLOR V. UNITED STATES, 286 U.S. 1; JOHNSON V.
UNITED STATES, 333 U.S. 10; MCDONALD V. UNITED STATES, 335 U.S. 451;
JONES V. UNITED STATES, 357 U.S. 493, 497-498; CHAPMAN V. UNITED
STATES, 365 U.S. 610; TRUPIANO V. UNITED STATES, 334 U.S. 699.  /25/ 

THE SECOND LIMITATION IS THAT THE DISCOVERY OF EVIDENCE IN PLAIN
VIEW MUST BE INADVERTENT.  /26/  THE RATIONALE OF THE EXCEPTION TO THE
WARRANT REQUIREMENT, AS JUST STATED, IS THAT A PLAIN-VIEW SEIZURE WILL
NOT TURN AN INITIALLY VALID (AND THEREFORE LIMITED) SEARCH INTO A
"GENERAL" ONE, WHILE THE INCONVENIENCE OF PROCURING A WARRANT TO COVER
AN INADVERTENT DISCOVERY IS GREAT.  BUT WHERE THE DISCOVERY IS
ANTICIPATED, WHERE THE POLICE KNOW IN ADVANCE THE LOCATION OF THE
EVIDENCE AND INTEND TO SEIZE IT, THE SITUATION IS ALTOGETHER
DIFFERENT.  THE REQUIREMENT OF A WARRANT TO SEIZE IMPOSES NO
INCONVENIENCE WHATEVER, OR AT LEAST NONE WHICH IS CONSTITUTIONALLY
COGNIZABLE IN A LEGAL SYSTEM THAT REGARDS WARRANTLESS SEARCHES AS "PER
SE UNREASONABLE" IN THE ABSENCE OF "EXIGENT CIRCUMSTANCES."     IF THE
INITIAL INTRUSION IS BOTTOMED UPON A WARRANT THAT FAILS TO MENTION A
PARTICULAR OBJECT, THOUGH THE POLICE KNOW ITS LOCATION AND INTEND TO
SEIZE IT, THEN THERE IS A VIOLATION OF THE EXPRESS CONSTITUTIONAL
REQUIREMENT OF "WARRANTS . . . PARTICULARLY DESCRIBING . . . (THE)
THINGS TO BE SEIZED."  THE INITIAL INTRUSION MAY, OF COURSE, BE
LEGITIMATED NOT BY A WARRANT BUT BY ONE OF THE EXCEPTIONS TO THE
WARRANT REQUIREMENT, SUCH AS HOT PURSUIT OR SEARCH INCIDENT TO LAWFUL
ARREST.  BUT TO EXTEND THE SCOPE OF SUCH AN INTRUSION TO THE SEIZURE OF
OBJECTS-- NOT CONTRABAND NOR STOLEN NOR DANGEROUS IN THEMSELVES-- WHICH
THE POLICE KNOW IN ADVANCE THEY WILL FIND IN PLAIN VIEW AND INTEND TO
SEIZE, WOULD FLY IN THE FACE OF THE BASIC RULE THAT NO AMOUNT OF
PROBABLE CAUSE CAN JUSTIFY A WARRANTLESS SEIZURE.  /27/ 

IN THE LIGHT OF WHAT HAS BEEN SAID, IT IS APPARENT THAT THE "PLAIN
VIEW" EXCEPTION CANNOT JUSTIFY THE POLICE SEIZURE OF THE PONTIAC CAR IN
THIS CASE.  THE POLICE HAD AMPLE OPPORTUNITY TO OBTAIN A VALID WARRANT;
THEY KNEW THE AUTOMOBILE'S EXACT DESCRIPTION AND LOCATION WELL IN
ADVANCE; THEY INTENDED TO SEIZE IT WHEN THEY CAME UPON COOLIDGE'S
PROPERTY.  AND THIS IS NOT A CASE INVOLVING CONTRABAND OR STOLEN GOODS
OR OBJECTS DANGEROUS IN THEMSELVES.  /28/ 

THE SEIZURE WAS THEREFORE UNCONSTITUTIONAL, AND SO WAS THE
SUBSEQUENT SEARCH AT THE STATION HOUSE.  SINCE EVIDENCE OBTAINED IN THE
COURSE OF THE SEARCH WAS ADMITTED AT COOLIDGE'S TRIAL, THE JUDGMENT
MUST BE REVERSED AND THE CASE REMANDED TO THE NEW HAMPSHIRE SUPREME
COURT.  MAPP V. OHIO, 367 U.S. 643. 

        D 

IN HIS DISSENTING OPINION TODAY, MR. JUSTICE WHITE MARSHALS THE
ARGUMENTS THAT CAN BE MADE AGAINST OUR INTERPRETATION OF THE
"AUTOMOBILE" AND "PLAIN VIEW" EXCEPTIONS TO THE WARRANT REQUIREMENT. 
BEYOND THE UNSTARTLING PROPOSITION THAT WHEN A LINE IS DRAWN THERE IS
OFTEN NOT A GREAT DEAL OF DIFFERENCE BETWEEN THE SITUATIONS CLOSEST TO
IT ON EITHER SIDE, THERE IS A SINGLE THEME THAT RUNS THROUGH WHAT HE
HAS TO SAY ABOUT THE TWO EXCEPTIONS.  SINCE THAT THEME IS A RECURRING
ONE IN CONTROVERSIES OVER THE PROPER MEANING AND SCOPE OF THE FOURTH
AMENDMENT, IT SEEMS APPROPRIATE TO TREAT HIS VIEWS IN THIS SEPARATE

MUCH THE MOST IMPORTANT PART OF THE CONFLICT THAT HAS BEEN SO
NOTABLE IN THIS COURT'S ATTEMPTS OVER A HUNDRED YEARS TO DEVELOP A
COHERENT BODY OF FOURTH AMENDMENT LAW HAS BEEN CAUSED BY DISAGREEMENT
OVER THE IMPORTANCE OF REQUIRING LAW ENFORCEMENT OFFICERS TO SECURE
WARRANTS.  SOME HAVE ARGUED THAT A DETERMINATION BY A MAGISTRATE OF
PROBABLE CAUSE AS A PRECONDITION OF ANY SEARCH OR SEIZURE THAT THE
FOURTH AMENDMENT IS VIOLATED WHENEVER THE POLICE MIGHT REASONABLY HAVE
OBTAINED A WARRANT BUT FAILED TO DO SO.  OTHERS HAVE ARGUED WITH EQUAL
FORCE THAT A TEST OF REASONABLENESS, APPLIED AFTER THE FACT OF SEARCH
OR SEIZURE WHEN THE POLICE ATTEMPT TO INTRODUCE THE FRUITS IN EVIDENCE,
AFFORDS AMPLE SAFEGUARD FOR THE RIGHTS IN QUESTION, SO THAT "(THE
RELEVANT TEST IS NOTWHETHER IT IS REASONABLE TO PROCURE A SEARCH
WARRANT, BUT WHETHER THE SEARCH WAS REASONABLE."  /29/ 

BOTH SIDES TO THE CONTROVERSY APPEAR TO RECOGNIZE A DISTINCTION
BETWEEN SEARCHES AND SEIZURES THAT TAKE PLACE ON A MAN'S PROPERTY-- HIS
HOME OR OFFICE-- AND THOSE CARRIED OUT ELSEWHERE.  IT IS ACCEPTED, AT
LEAST AS A MATTER OF PRINCIPLE, THAT A SEARCH OR SEIZURE CARRIED OUT ON
A SUSPECT'S PREMISES WITHOUT A WARRANT IS PER SE UNREASONABLE, UNLESS
THE POLICE CAN SHOW THAT IT FALLS WITHIN ONE OF A CAREFULLY DEFINED SET
OF EXCEPTIONS BASED ON THE PRESENCE OF "EXIGENT CIRCUMSTANCES."  /30/
AS TO OTHER KINDS OF INTRUSIONS, HOWEVER, THERE HAS BEEN DISAGREEMENT
ABOUT THE BASIC RULES TO BE APPLIED, AS OUR CASES CONCERNING AUTOMOBILE
SEARCHES, ELECTRONIC SURVEILLANCE, STREET SEARCHES AND ADMINISTRATIVE
SEARCHES MAKE CLEAR.  /31/ 

WITH RESPECT TO SEARCHES AND SEIZURES CARRIED OUT ON A SUSPECT'S
PREMISES, THE CONFLICT HAS BEEN OVER THE QUESTION OF WHAT QUALIFIES AS
AN "EXIGENT CIRCUMSTANCE."  IT MIGHT APPEAR THAT THE DIFFICULT INQUIRY
WOULD BE WHEN IT IS THAT THE POLICE CAR ENTER UPON A PERSON'S PROPERTY
TO SEIZE HIS "PERSON . . . PAPERS, AND EFFECTS," WITHOUT PRIOR JUDICIAL
APPROVAL.  THE QUESTION OF THE SCOPE OF SEARCH AND SEIZURE ONCE THE
POLICE ARE ON THE PREMISES WOULD APPEAR TO BE SUBSIDIARY TO THE BASIC
ISSUE OF WHEN INTRUSION IS PERMISSIBLE.  BUT THE LAW HAS NOT DEVELOPED
IN THIS FASHION. 

THE MOST COMMON SITUATION IN WHICH FOURTH AMENDMENT ISSUES HAVE
ARISEN HAS BEEN THAT IN WHICH THE POLICE ENTER THE SUSPECT'S PREMISES,
ARREST HIM, AND THEN CARRY OUT A WARRANTLESS SEARCH AND SEIZURE OF
EVIDENCE.  WHERE THERE IS A WARRANT FOR THE SUSPECT'S ARREST, THE
EVIDENCE SEIZED MAY LATER BE CHALLENGED EITHER ON THE GROUND THAT THE
WARRANT WAS IMPROPERLY ISSUED BECAUSE THERE WAS NOT PROBABLE CAUSE,
/32/  OR ON THE GROUND THAT THE POLICE SEARCH AND SEIZURE WENT BEYOND
THAT WHICH THEY COULD CARRY OUT AS AN INCIDENT TO THE EXECUTION OF THE
ARREST WARRANT.  /33/  WHERE THE POLICE ACT WITHOUT AN ARREST WARRANT,
THE SUSPECT MAY ARGUE THAT AN ARREST WARRANT WAS NECESSARY, THAT THERE
WAS NO PROBABLE CAUSE TO ARREST, /34/  OR THAT EVEN IF THE ARREST WAS
VALID, THE SEARCH AND SEIZURE WENT BEYOND PERMISSIBLE LIMITS.  /35/
PERHAPS BECAUSE EACH OF THESE LINES OF ATTACK OFFERS A PLETHORA OF
LITIGABLE ISSUES, THE MORE FUNDAMENTAL QUESTION OF WHEN THE POLICE MAY
ARREST A MAN IN HIS HOUSE WITHOUT A WARRANT HAS BEEN LITTLE CONSIDERED
IN THE FEDERAL COURTS.  THIS COURT HAS CHOSEN ON A NUMBER OF OCCASIONS
TO ASSUME THE VALIDITY OF AN ARREST AND DECIDE THE CASE BEFORE IT ON
THE ISSUE OF THE SCOPE OF PERMISSIBLE WARRANTLESS SEARCH.  E.G., CHIMEL
V. CALIFORNIA, SUPRA.  THE MORE COMMON INQUIRY HAS THEREFORE BEEN:
"ASSUMING A VALID POLICE ENTRY FOR PURPOSES OF ARREST, WHAT SEARCHES
AND SEIZURES MAY THE POLICE CARRY OUT WITHOUT PRIOR AUTHORIZATION BY A
MAGISTRATE?" 

TWO VERY BROAD, AND SHARPLY CONTRASTING ANSWERS TO THIS QUESTION HAVE
BEEN ASSAYED BY THIS COURT IN THE PAST.  THE ANSWER OF TRUPIANO V.
UNITED STATES, SUPRA, WAS THAT NO SEARCHES AND SEIZURES COULD BE
LEGITIMATED BY THE MERE FACT OF VALID ENTRY FOR PURPOSES OF ARREST, SO
LONG AS THERE WAS NO SHOWING OF SPECIAL DIFFICULTIES IN OBTAINING A
WARRANT FOR SEARCH AND SEIZURE.  THE CONTRASTING ANSWER IN HARRIS V.
UNITED STATES, 331 U.S. 145, AND UNITED STATES V. RABINOWITZ, SUPRA,
WAS THAT A VALID ENTRY FOR PURPOSES OF ARREST SERVED TO LEGITIMATE
WARRANTLESS SEARCHES AND SEIZURES THROUGHOUT THE PREMISES WHERE THE
ARREST OCCURRED, HOWEVER SPACIOUS THOSE PREMISES MIGHT BE. 

THE APPROACH TAKEN IN HARRIS AND RABINOWITZ WAS OPEN TO THE
CRITICISM THAT IT MADE IT SO EASY FOR THE POLICE TO ARRANGE TO SEARCH A
MAN'S PREMISES WITHOUT A WARRANT THAT THE CONSTITUTION'S PROTECTION OF
A MAN'S "EFFECTS" BECAME A DEAD LETTER.  THE APPROACH TAKEN IN
TRUPIANO, ON THE OTHER HAND, WAS OPEN TO THE CRITICISM THAT IT WAS
ABSURD TO PERMIT THE POLICE TO MAKE AN ENTRY IN THE DEAD OF NIGHT FOR
PURPOSES OF SEIZING THE "PERSON" BY MAIN FORCE, AND THEN REFUSE THEM
PERMISSION TO SEIZE OBJECTS LYING AROUND IN PLAIN SIGHT.  IT IS
ARGUABLE THAT IF THE VERY SUBSTANTIAL INTRUSION IMPLIED IN THE ENTRY
AND ARREST ARE "REASONABLE" IN FOURTH AMENDMENT TERMS, THEN THE LESS
INTRUSIVE SEARCH INCIDENT TO ARREST MUST ALSO BE REASONABLE. 

THIS ARGUMENT AGAINST THE TRUPIANO APPROACH IS OF LITTLE FORCE SO
LONG AS IT IS ASSUMED THAT THE POLICE MUST, IN THE ABSENCE OF ONE OF A
NUMBER OF DEFINED EXCEPTIONS BASED ON "EXIGENT CIRCUMSTANCES," OBTAIN
AN ARREST WARRANT BEFORE ENTERING A MAN'S HOUSE TO SEIZE HIS PERSON. 
IF THE FOURTH AMENDMENT REQUIRES A WARRANT TO ENTER AND SEIZE THE
PERSON, THEN IT MAKES SENSE AS WELL TO REQUIRE A WARRANT TO SEIZE OTHER
ITEMS THAT MAY BE ON THE PREMISES.  THE SITUATION IS DIFFERENT,
HOWEVER, IF THE POLICE ARE UNDER NO CIRCUMSTANCES REQUIRED TO OBTAIN AN
ARREST WARRANT BEFORE ENTERING TO ARREST A PERSON THEY HAVE PROBABLE
CAUSE TO BELIEVE HAS COMMITTED A FELONY.  IF NO WARRANT IS EVER
REQUIRED TO LEGITIMATE THE EXTREMELY SERIOUS INTRUSION OF A MIDNIGHT
ENTRY TO SEIZE THE PERSON, THEN IT CAN BE ARGUED PLAUSIBLY THAT A
WARRANT SHOULD NEVER BE REQUIRED TO LEGITIMATE A VERY SWEEPING SEARCH
INCIDENT TO SUCH AN ENTRY AND ARREST.  IF THE ARREST WITHOUT A WARRANT
IN PER SE REASONABLE UNDER THE FOURTH AMENDMENT, THEN IT IS DIFFICULT
TO PERCEIVE WHY A SEARCH INCIDENT IN THE STYLE OF HARRIS AND RABINOWITZ
IS NOT PER SE REASONABLE AS WELL. 

IT IS CLEAR, THEN, THAT THE NOTION THAT THE WARRANTLESS ENTRY OF A
MAN'S HOUSE IN ORDER TO ARREST HIM ON PROBABLE CAUSE IS PER SE
LEGITIMATE IS IN FUNDAMENTAL CONFLICT WITH THE BASIC PRINCIPLE OF
FOURTH AMENDMENT LAW THAT SEARCHES AND SEIZURES INSIDE A MAN'S HOUSE
WITHOUT WARRANT ARE PER SE UNREASONABLE IN THE ABSENCE OF SOME ONE OF A
NUMBER OF WELL DEFINED "EXIGENT CIRCUMSTANCES."  THIS CONFLICT CAME TO
THE FORE IN CHIMEL V. CALIFORNIA, SUPRA.  THE COURT THERE APPLIED THE
BASIC RULE THAT THE "SEARCH INCIDENT TO ARREST"  IS AN EXCEPTION TO THE
WARRANT REQUIREMENT AND THAT ITS SCOPE MUST THEREFORE BE STRICTLY
DEFINED IN TERMS OF THE JUSTIFYING "EXIGENT CIRCUMSTANCES."  THE
EXIGENCY IN QUESTION ARISES FROM THE DANGERS OF HARM TO THE ARRESTING
OFFICER AND OF DESTRUCTION OF EVIDENCE WITHIN THE REACH OF THE
ARRESTEE.  NEITHER EXIGENCY CAN CONCEIVABLY JUSTIFY FAR-RANGING
SEARCHES AUTHORIZED UNDER HARRIS AND RABINOWITZ.  THE ANSWER OF THE
DISSENTING OPINION OF MR. JUSTICE WHITE IN CHIMEL, SUPPORTED BY NO
DECISION OF THIS COURT, WAS THAT A WARRANTLESS ENTRY FOR THE PURPOSE OF
ARREST ON PROBABLE CAUSE IS LEGITIMATE AND REASONABLE NO MATTER WHAT
THE CIRCUMSTANCES.  395 U.S.,AT 776-780.  FROM THIS IT WAS SAID TO
FOLLOW THAT THE FULL-SCALE SEARCH INCIDENT TO ARREST WAS ALSO
REASONABLE SINCE IT WAS A LESSER INTRUSION.  395 U.S.,AT 772-775. 

THE SAME CONFLICT ARISES IN THIS CASE.  SINCE THE POLICE KNEW OF THE
PRESENCE OF THE AUTOMOBILE AND PLANNED ALL ALONG TO SEIZE IT, THERE WAS
NO "EXIGENT CIRCUMSTANCE" TO JUSTIFY THEIR FAILURE TO OBTAIN A
WARRANT.  THE APPLICATION OF THE BASIC RULE OF FOURTH AMENDMENT LAW
THEREFORE REQUIRES THAT THE FRUITS OF THE WARRANTLESS SEIZURE BE
SUPPRESSED.  MR. JUSTICE WHITE'S DISSENTING OPINION, HOWEVER, ARGUES
ONCE AGAIN THAT SO LONG AS THE POLICE COULD REASONABLY MAKE A
WARRANTLESS NIGHTTIME ENTRY ONTO COOLIDGE'S PROPERTY IN ORDER TO ARREST
HIM, WITH NO SHOWING AT ALL OF AN EMERGENCY, THEN IT IS ABSURD TO
PREVENT THEM FROM SEIZING HIS AUTOMOBILE AS EVIDENCE OF THE CRIME. 

MR. JUSTICE WHITE TAKES A BASICALLY SIMILAR APPROACH TO THE QUESTION
WHETHER THE SEARCH OF THE AUTOMOBILE IN THIS CASE CAN BE JUSTIFIED
UNDER CARROLL V. UNITED STATES, SUPRA, AND CHAMBERS V. MARONEY, SUPRA.
CARROLL, ON ITS FACE, APPEARS TO BE A CLASSIC EXAMPLE OF THE DOCTRINE
THAT WARRANTLESS SEARCHES ARE PER SE UNREASONABLE IN THE ABSENCE OF
EXIGENT CIRCUMSTANCES.  EVERY WORD IN THE OPINION INDICATES THE COURT'S
ADHERENCE TO THE UNDERLYING RULE AND ITS CARE IN DELINEATING A LIMITED
EXCEPTION.  READ THUS, THE CASE QUITE EVIDENTLY DOES NOT EXTEND TO THE
SITUATION AT BAR.  YET IF WE TAKE THE VIEWPOINT OF A JUDGE CALLED ON
ONLY TO DECIDE IN THE ABSTRACT, AFTER THE FACT, WHETHER THE POLICE HAVE
BEHAVED "REASONABLY" UNDER ALL THE CIRCUMSTANCES-- IN SHORT IF WE
SIMPLY IGNORE THE WARRANT REQUIREMENT-- CARROLL COMES TO STAND FOR
SOMETHING MORE.  THE STOPPING OF A VEHICLE ON THE OPEN HIGHWAY AND A
SUBSEQUENT SEARCH AMOUNT TO A MAJOR INTERFERENCE IN THE LIVES OF THE
OCCUPANTS.  CARROLL HELD SUCH AN INTERFERENCE TO BE REASONABLE WITHOUT
A WARRANT, GIVEN PROBABLE CAUSE.  IT MAY BE THOUGHT TO FOLLOW A
FORTIORI THAT THE SEIZURE AND SEARCH HERE-- WHERE THERE WAS NO STOPPING
AND THE VEHICLE WAS UNOCCUPIED-- WERE ALSO REASONABLE, SINCE THE
INTRUSION WAS LESS SUBSTANTIAL, ALTHOUGH THERE WERE NO EXIGENT
CIRCUMSTANCES WHATEVER.  USING REASONING OF THIS SORT, IT IS BUT A
SHORT STEP TO THE POSITION THAT IT IS NEVER NECESSARY FOR THE POLICE TO
OBTAIN A WARRANT BEFORE SEARCHING AND SEIZING AN AUTOMOBILE, PROVIDED
THAT THEY HAVE PROBABLE CAUSE.  AND MR. JUSTICE WHITE APPEARS TO ADOPT
EXACTLY THIS VIEW WHEN HE PROPOSES THAT THE COURT SHOULD "TREAT
SEARCHES OF AUTOMOBILES AS WE DO THE ARREST OF A PERSON." 

IF WE WERE TO ACCEPT MR. JUSTICE WHITE'S VIEW THAT WARRANTLESS ENTRY
FOR PURPOSES OF ARREST AND WARRANTLESS SEIZURE AND SEARCH OF
AUTOMOBILES ARE PER SE REASONABLE, SO LONG AS THE POLICE HAVE PROBABLE
CAUSE, IT WOULD BE DIFFICULT TO SEE THE BASIS FOR DISTINGUISHING
SEARCHES OF HOUSES AND SEIZURES OF EFFECTS.  IF IT IS REASONABLE FOR
THE POLICE TO MAKE A WARRANTLESS NIGHTTIME ENTRY FOR THE PURPOSE OF
ARRESTING A PERSON IN HIS BED, THEN SURELY IT MUST BE REASONABLE AS
WELL TO MAKE A WARRANTLESS ENTRY TO SEARCH FOR AND SEIZE VITAL EVIDENCE
OF A SERIOUS CRIME.  IF THE POLICE MAY, WITHOUT A WARRANT, SEIZE AND
SEARCH AN UNOCCUPIED VEHICLE PARKED ON THE OWNER'S PRIVATE PROPERTY,
NOT BEING USED FOR ANY ILLEGAL PURPOSE, THEN IT IS HARD TO SEE WHY THEY
NEED A WARRANT TO SEIZE AND SEARCH A SUITCASE, A TRUNK, A SHOPPING BAG,
OR ANY OTHER PORTABLE CONTAINER IN A HOUSE, GARAGE, OR BACK YARD. 

THE FUNDAMENTAL OBJECTION, THEN, TO THE LINE OF ARGUMENT ADOPTED BY
MR. JUSTICE WHITE IN HIS DISSENT IN THIS CASE AND IN CHIMEL V.
CALIFORNIA, SUPRA, IS THAT IT PROVES TOO MUCH.  IF WE WERE TO AGREE
WITH MR. JUSTICE WHITE THAT THE POLICE MAY, WHENEVER THEY HAVE PROBABLE
CAUSE, MAKE A WARRANTLESS ENTRY FOR THE PURPOSE OF MAKING AN ARREST,
AND THAT SEIZURES AND SEARCHES OF AUTOMOBILES ARE LIKEWISE PER SE
REASONABLE GIVEN PROBABLE CAUSE, THEN BY THE SAME LOGIC ANY SEARCH OR
SEIZURE COULD BE CARRIED OUT WITHOUT A WARRANT, AND WE WOULD SIMPLY
HAVE READ THE FOURTH AMENDMENT OUT OF THE CONSTITUTION.  INDEED, IF MR.
JUSTICE WHITE IS CORRECT THAT IT HAS GENERALLY BEEN ASSUMED THAT THE
FOURTH AMENDMENT IS NOT VIOLATED BY THE WARRANTLESS ENTRY OF A MAN'S
HOUSE FOR PURPOSES OF ARREST, IT MIGHT BE WISE TO RE-EXAMINE THE
ASSUMPTION.  SUCH A RE-EXAMINATION "WOULD CONFRONT US WITH A GRAVE
CONSTITUTIONAL QUESTION, NAMELY, WHETHER THE FORCEFUL NIGHTTIME ENTRY
INTO A DWELLING TO ARREST A PERSON REASONABLY BELIEVED WITHIN, UPON
PROBABLE CAUSE THAT HE HAD COMMITTED A FELONY, UNDER CIRCUMSTANCES
WHERE NO REASON APPEARS WHY AN ARREST WARRANT COULD NOT HAVE BEEN
SOUGHT, IS CONSISTENT WITH THE FOURTH AMENDMENT."  JONES V. UNITED
STATES, 357 U.S.,AT 499-500.     NONE OF THE CASES CITED BY MR. JUSTICE
WHITE DISPOSES OF THIS "GRAVE CONSTITUTIONAL QUESTION."  THE CASE OF
WARDEN V. HAYDEN, SUPRA, WHERE THE COURT ELABORATED A "HOT PURSUIT"
JUSTIFICATION FOR THE POLICE ENTRY INTO THE DEFENDANT'S HOUSE WITHOUT A
WARRANT FOR HIS ARREST, CERTAINLY STANDS BY NEGATIVE IMPLICATION FOR
THE PROPOSITION THAT AN ARREST WARRANT IS REQUIRED IN THE ABSENCE OF
EXIGENT CIRCUMSTANCES.  SEE ALSO DAVIS V. MISSISSIPPI, 394 U.S. 721,
728; WONG SUN V. UNITED STATES, 371 U.S.,AT 481-482.  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, SITTING EN BANC, HAS
UNANIMOUSLY REACHED THE SAME CONCLUSION.  /36/  BUT WE FIND IT
UNNECESSARY TO DECIDE THE QUESTION IN THIS CASE.  THE RULE THAT
"SEARCHES CONDUCTED OUTSIDE THE JUDICIAL PROCESS, WITHOUT PRIOR
APPROVAL BY JUDGE OR MAGISTRATE, ARE PER SE UNREASONABLE UNDER THE
FOURTH AMENDMENT-- SUBJECT ONLY TO A FEW SPECIFICALLY ESTABLISHED AND
WELL-DELINEATED EXCEPTIONS,"  /37/  IS NOT SO FRAIL THAT ITS CONTINUING
VITALITY DEPENDS ON THE FATE OF A SUPPOSED DOCTRINE OF WARRANTLESS
ARREST.  THE WARRANT REQUIREMENT HAS BEEN A VALUED PART OF OUR
CONSTITUTIONAL LAW FOR DECADES, AND IT HAS DETERMINED THE RESULT IN
SCORES AND SCORES OF CASES IN COURTS ALL OVER THIS COUNTRY.  IT IS NOT
AN INCONVENIENCE TO BE SOMEHOW "WEIGHED"  AGAINST THE CLAIMS OF POLICE
EFFICIENCY.  IT IS, OR SHOULD BE, AN IMPORTANT WORKING PART OF OUR
MACHINERY OF GOVERNMENT, OPERATING AS A MATTER OF COURSE TO CHECK THE
"WELL-INTENTIONED BUT MISTAKENLY OVER-ZEALOUS EXECUTIVE OFFICERS"  /38/
WHO ARE A PART OF ANY SYSTEM OF LAW ENFORCEMENT.  IF IT IS TO BE A
TRUE GUIDE TO CONSTITUTIONAL POLICE ACTION, RATHER THAN JUST A PIOUS
PHRASE, THEN "(THE EXCEPTIONS CANNOT BE ENTHRONED INTO THE RULE." 
UNITED STATES V. RABINOWITZ, SUPRA, AT 80 (FRANKFURTER, J.,
DISSENTING).  THE CONFINEMENT OF THE EXCEPTIONS TO THEIR APPROPRIATE
SCOPE WAS THE FUNCTION OF CHIMEL V. CALIFORNIA, SUPRA, WHERE WE DEALT
WITH THE ASSUMPTION THAT A SEARCH "INCIDENT" TO A LAWFUL ARREST MAY
ENCOMPASS ALL OF THE PREMISES WHERE THE ARREST OCCURS, HOWEVER
SPACIOUS.  THE "PLAIN VIEW" EXCEPTION IS INTIMATELY LINKED WITH THE
SEARCH-INCIDENT EXCEPTION, AS THE CASES DISCUSSED IN PART C ABOVE HAVE
REPEATEDLY SHOWN.  TO PERMIT WARRANTLESS PLAIN-VIEW SEIZURES WITHOUT
LIMIT WOULD BE TO UNDO MUCH OF WHAT WAS DECIDED IN CHIMEL, AS THE
SIMILAR ARGUMENTS PUT FORWARD IN DISSENT IN THE TWO CASES INDICATE
CLEARLY ENOUGH. 

FINALLY, A WORD ABOUT TRUPIANO V. UNITED STATES, SUPRA.  OUR
DISCUSSION OF "PLAIN VIEW" IN PART C ABOVE CORRESPONDS WITH THAT GIVEN
IN TRUPIANO.  HERE, AS IN TRUPIANO, THE DETERMINING FACTORS ARE ADVANCE
POLICE KNOWLEDGE OF THE EXISTENCE AND LOCATION OF THE EVIDENCE, POLICE
INTENTION TO SEIZE IT, AND THE AMPLE OPPORTUNITY FOR OBTAINING A
WARRANT.  SEE 334 U.S.,AT 707-708 AND N. 27, SUPRA.  HOWEVER, WE DO NOT
"REINSTATE" TRUPIANO, SINCE WE CANNOT ADOPT ALL ITS IMPLICATIONS.  TO
BEGIN WITH, IN CHIMEL V. CALIFORNIA, SUPRA, WE HELD THAT A SEARCH OF
THE PERSON OF AN ARRESTEE AND OF THE AREA UNDER HIS IMMEDIATE CONTROL
COULD BE CARRIED OUT WITHOUT A WARRANT.  WE DID NOT INDICATE THERE, AND
DO NOT SUGGEST HERE, THAT THE POLICE MUST OBTAIN A WARRANT IF THEY
ANTICIPATE THAT THEY WILL FIND SPECIFIC EVIDENCE DURING THE COURSE OF
SUCH A SEARCH.  SEE N. 24, SUPRA.  AND AS TO THE AUTOMOBILE EXCEPTION,
WE DO NOT QUESTION THE DECISIONS OF THE COURT IN COOPER V. CALIFORNIA,
386 U.S. 58, AND CHAMBERS V. MARONEY, SUPRA, ALTHOUGH BOTH ARE ARGUABLY
INCONSISTENT WITH TRUPIANO. 

MR. JUSTICE WHITE'S DISSENT CHARACTERIZES THE COEXISTENCE OF CHIMEL,
COOPER, CHAMBERS, AND THIS CASE AS "PUNITIVE," "EXTRAVAGANT,"
"INCONSISTENT," "WITHOUT APPARENT REASON," "UNEXPLAINED," AND
"INEXPLICABLE."  POST, AT 517, 519, 521.  IT IS URGED UPON US THAT WE
HAVE HERE A "READY OPPORTUNITY, ONE WAY OR ANOTHER, TO BRING CLARITY
AND CERTAINTY TO A BODY OF LAW THAT LOWER COURTS AND LAW ENFORCEMENT
OFFICIALS OFTEN FIND CONFUSING."  POST, AT 521.  PRESUMABLY ONE OF THE
WAYS IN WHICH MR. JUSTICE WHITE BELIEVES WE MIGHT ACHIEVE CLARITY AND
CERTAINTY WOULD BE THE ADOPTION OF HIS PROPOSAL THAT WE TREAT ENTRY FOR
PURPOSES OF ARREST AND SEIZURE OF AN AUTOMOBILE ALIKE AS PER SE
REASONABLE ON PROBABLE CAUSE.  SUCH AN APPROACH MIGHT DISPOSE OF THIS
CASE CLEARLY AND CERTAINLY ENOUGH, BUT, AS WE HAVE TRIED TO SHOW ABOVE,
IT WOULD CAST INTO LIMBO THE WHOLE NOTION OF A FOURTH AMENDMENT WARRANT
REQUIREMENT.  AND IT IS DIFFICULT TO TAKE SERIOUSLY MR. JUSTICE WHITE'S
ALTERNATIVE SUGGESTION THAT CLARITY AND CERTAINTY, AS WELL AS COHERENCE
AND CREDIBILITY, MIGHT ALSO BE ACHIEVED BY MODIFYING CHIMEL AND
OVERRULING CHAMBERS AND COOPER.  SURELY, QUITE APART FROM HIS STRONG
DISAGREEMENT ON THE MERITS, HE WOULD TAKE VEHEMENT EXCEPTION TO ANY
SUCH CAVALIER TREATMENT OF THIS COURT'S DECISIONS. 

OF COURSE, IT WOULD BE NONSENSE TO PRETEND THAT OUR DECISION TODAY
REDUCES FOURTH AMENDMENT LAW TO COMPLETE ORDER AND HARMONY.  THE
DECISIONS OF THE COURT OVER THE YEARS POINT IN DIFFERING DIRECTIONS AND
DIFFER IN EMPHASIS.  NO TRICK OF LOGIC WILL MAKE THEM ALL PERFECTLY
CONSISTENT.  BUT IT IS NO LESS NONSENSE TO SUGGEST, AS DOES MR. JUSTICE
WHITE, POST, AT 521, 520, THAT WE CEASE TODAY "TO STRIVE FOR CLARITY
AND CONSISTENCY OF ANALYSIS," OR THAT WE HAVE "ABANDONED ANY ATTEMPT"
TO FIND REASONED DISTINCTIONS IN THIS AREA.  THE TIME IS LONG PAST WHEN
MEN BELIEVED THAT DEVELOPMENT OF THE LAW MUST ALWAYS PROCEED BY THE
SMOOTH INCORPORATION OF NEW SITUATIONS INTO A SINGLE COHERENT
ANALYTICAL FRAMEWORK.  WE NEED ACCEPT NEITHER THE "CLARITY AND
CERTAINTY" OF A FOURTH AMENDMENT WITHOUT A WARRANT REQUIREMENT NOR THE
FACILE CONSISTENCY OBTAINED BY WHOLESALE OVERRULING OF RECENTLY DECIDED
CASES.  A REMARK BY MR. JUSTICE HARLAN CONCERNING THE FIFTH AMENDMENT
IS APPLICABLE AS WELL TO THE FOURTH: 

     "THERE ARE THOSE, I SUPPOSE, WHO WOULD PUT THE 'LIBERAL

  CONSTRUCTION' APPROACH OF CASES LIKE MIRANDA (V. ARIZONA, 384

  U.S. 436,) AND BOYD V. UNITED STATES, 116 U.S. 616 (1886),

  SIDE-BY-SIDE WITH THE BALANCING APPROACH OF SCHMERBER (V.

  CALIFORNIA, 384 U.S. 757,) AND PERCEIVE NOTHING MORE SUBTLE THAN

  A SET OF CONSTRUCTIONAL ANTIONOMIES TO BE UTILIZED AS CONVENIENT

  BOOTSTRAPS TO ONE RESULT OR ANOTHER.  BUT I PERCEIVE IN THESE

  CASES THE ESSENTIAL TENSION THAT SPRINGS FROM THE UNCERTAIN

  MANDATE WHICH THIS PROVISION OF THE CONSTITUTION GIVES TO THIS

  COURT."  CALIFORNIA V. BYERS, 402 U.S. 424, 449-450 (CONCURRING

  IN JUDGMENT). 

WE ARE CONVINCED THAT THE RESULT REACHED IN THIS CASE IS CORRECT,
AND THAT THE PRINCIPLE IT REFLECTS-- THAT THE POLICE MUST OBTAIN A
WARRANT WHEN THEY INTEND TO SEIZE AN OBJECT OUTSIDE THE SCOPE OF A
VALID SEARCH INCIDENT TO ARREST-- CAN BE EASILY UNDERSTOOD AND APPLIED
BY COURTS AND LAW ENFORCEMENT OFFICERS ALIKE.  IT IS A PRINCIPLE THAT
SHOULD WORK TO PROTECT THE CITIZEN WITHOUT OVERBURDENING THE POLICE,
AND A PRINCIPLE THAT PRESERVES AND PROTECTS THE GUARANTEES OF THE
FOURTH AMENDMENT. 

        III 

BECAUSE OF THE PROSPECT OF A NEW TRIAL, THE EFFICIENT ADMINISTRATION
OF JUSTICE COUNSELS CONSIDERATION OF THE SECOND SUBSTANTIAL QUESTION
UNDER THE FOURTH AND FOURTEENTH AMENDMENTS PRESENTED BY THIS CASE.  THE
PETITIONER CONTENDS THAT WHEN THE POLICE OBTAINED A RIFLE AND ARTICLES
OF HIS CLOTHING FROM HIS HOME ON THE NIGHT OF SUNDAY, FEBRUARY 2, 1964,
WHILE HE WAS BEING INTERROGATED AT THE POLICE STATION, THEY ENGAGED IN
A SEARCH AND SEIZURE VIOLATIVE OF THE CONSTITUTION.  IN ORDER TO
UNDERSTAND THIS CONTENTION, IT IS NECESSARY TO REVIEW IN SOME DETAIL
THE CIRCUMSTANCES OF THE FEBRUARY 2 EPISODE. 

        A 

THE LIE-DETECTOR TEST ADMINISTERED TO COOLIDGE IN CONCORD ON THE
AFTERNOON OF THE 2D WAS INCONCLUSIVE AS TO HIS ACTIVITIES ON THE NIGHT
OF PAMELA MASON'S DISAPPEARANCE, BUT DURING THE COURSE OF THE TEST
COOLIDGE CONFESSED TO STEALING $375 FROM HIS EMPLOYER.  AFTER THE GROUP
RETURNED FROM CONCORD TO MANCHESTER, THE INTERROGATION ABOUT COOLIDGE'S
MOVEMENTS ON THE NIGHT OF THE DISAPPEARANCE CONTINUED, AND COOLIDGE
APPARENTLY MADE A NUMBER OF STATEMENTS WHICH THE POLICE IMMEDIATELY
CHECKED OUT AS BEST THEY COULD.  THE DECISION TO SEND TWO OFFICERS TO
THE COOLIDGE HOUSE TO SPEAK WITH MRS. COOLIDGE WAS APPARENTLY MOTIVATED
IN PART BY A DESIRE TO CHECK HIS STORY AGAINST WHATEVER SHE MIGHT SAY,
AND IN PART BY THE NEED FOR SOME CORROBORATION OF HIS ADMISSION TO THE
THEFT FROM HIS EMPLOYER.  THE TRIAL JUDGE FOUND AS A FACT, AND THE
RECORD SUPPORTS HIM, THAT AT THE TIME OF THE VISIT THE POLICE KNEW VERY
LITTLE ABOUT THE WEAPON THAT HAD KILLED PAMELA MASON.  THE BULLET THAT
HAD BEEN RETRIEVED WAS OF SMALL CALIBER, BUT THE POLICE WERE UNSURE
WHETHER THE WEAPON WAS A RIFLE OR A PISTOL.  DURING THE EXTENSIVE
INVESTIGATION FOLLOWING THE DISCOVERY OF THE BODY, THEPOLICE HAD MADE
IT A PRACTICE TO ASK ALL THOSE QUESTIONED WHETHER THEY OWNED ANY GUNS,
AND TO ASK THE OWNERS FOR PERMISSION TO RUN TESTS ON THOSE THAT MET THE
VERY GENERAL DESCRIPTION OF THE MURDER WEAPON.  THE TRIAL JUDGE FOUND
AS A FACT THAT WHEN THE POLICE VISITED MRS. COOLIDGE ON THE NIGHT OF
THE 2D, THEY WERE UNAWARE OF THE PREVIOUS VISIT DURING WHICH COOLIDGE
HAD SHOWN OTHER OFFICERS THREE GUNS, AND THAT THEY WERE NOT MOTIVATED
BY A DESIRE TO FIND THE MURDER WEAPON. 

THE TWO PLAINCLOTHESMEN ASKED MRS. COOLIDGE WHETHER HER HUSBAND HAD
BEEN AT HOME ON THE NIGHT OF THE MURDER VICTIM'S DISAPPEARANCE, AND SHE
REPLIED THAT HE HAD NOT.  THEY THEN ASKED HER IF HER HUSBAND OWNED ANY
GUNS.  ACCORDING TO HER TESTIMONY AT THE PRETRIAL SUPPRESSION HEARING,
SHE REPLIED, "YES, I WILL GET THEM IN THE BEDROOM."  ONE OF THE
OFFICERS REPLIED, "WE WILL COME WITH YOU."  THE THREE WENT INTO THE
BEDROOM WHERE MRS. COOLIDGE TOOK ALL FOUR GUNS OUT OF THE CLOSET.  HER
ACCOUNT CONTINUED: 

     "A.  I BELIEVE I ASKED IF THEY WANTED THE GUNS.  ONE GENTLEMAN

SAID, 'NO'; THEN THE OTHER GENTLEMAN TURNED AROUND AND SAID, 'WE

  MIGHT AS WELL TAKE THEM.'  I SAID, 'IF YOU WOULD LIKE THEM, YOU

  MAY TAKE THEM.' 

     "Q.  DID YOU GO FURTHER AND SAY, 'WE HAVE NOTHING TO HIDE.'? 

     "A.  I CAN'T RECALL IF I SAID THAT THEN OR BEFORE.  I DON'T
RECALL. 

    "Q.  BUT AT SOME TIME YOU INDICATED TO THEM THAT AS FAR AS YOU

  WERE CONCERNED YOU HAD NOTHING TO HIDE, AND THEY MIGHT TAKE WHAT

  THEY WANTED? 

     "A.  THAT WAS IT.

        .          .          .          . 

     "Q.  DID YOU FEEL AT THAT TIME THAT YOU HAD SOMETHING TO
HIDE? 

     "A.  NO." 

THE TWO POLICEMEN ALSO ASKED MRS. COOLIDGE WHAT HER HUSBAND HAD BEEN
WEARING ON THE NIGHT OF THE DISAPPEARANCE.  SHE THEN PRODUCED FOUR
PAIRS OF TROUSERS AND INDICATED THAT HER HUSBAND HAD PROBABLY WORN
EITHER OF TWO OF THEM ON THAT EVENING.  SHE ALSO BROUGHT OUT A HUNTING
JACKET.  THE POLICE HAVE HER A RECEIPT FOR THE GUNS AND THE CLOTHING,
AND, AFTER A SEARCH OF THE COOLIDGE CARS NOT HERE IN ISSUE, TOOK THE
VARIOUS ARTICLES TO THE POLICE STATION. 

        B 

THE FIRST BRANCH OF THE PETITIONER'S ARGUMENT IS THAT WHEN MRS.
COOLIDGE BROUGHT OUT THE GUNS AND CLOTHING, AND THEN HANDED THEM OVER
TO THE POLICE, SHE WAS ACTING AS AN "INSTRUMENT" OF THE OFFICIALS,
COMPLYING WITH A "DEMAND" MADE BY THEM.  CONSEQUENTLY, IT IS ARGUED,
COOLIDGE WAS THE VICTIM OF A SEARCH AND SEIZURE WITHIN THE
CONSTITUTIONAL MEANING OF THOSE TERMS.  SINCE WE CANNOT ACCEPT THIS
INTERPRETATION OF THE FACTS, WE NEED NOT CONSIDER THE PETITIONER'S
FURTHER ARGUMENT THAT MRS. COOLIDGE COULD NOT OR DID NOT "WAIVE" HER
HUSBAND'S CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCHES AND
SEIZURES. 

HAD MRS. COOLIDGE, WHOLLY ON HER OWN INITIATIVE, SOUGHT OUT HER
HUSBAND'S GUNS AND CLOTHING AND THEN TAKEN THEM TO THE POLICE STATION
TO BE USED AS EVIDENCE AGAINST HIM, THERE CAN BE NO DOUBT UNDER
EXISTING LAW THAT THE ARTICLES WOULD LATER HAVE BEEN ADMISSIBLE IN
EVIDENCE.  CF. BURDEAU V. MCDOWELL, 256 U.S. 465.  THE QUESTION
PRESENTED HERE IS WHETHER THE CONDUCT OF THE POLICE OFFICERS AT THE
COOLIDGE HOUSE WAS SUCH AS TO MAKE HER ACTIONS THEIR ACTIONS FOR
PURPOSES OF THE FOURTH AND FOURTEENTH AMENDMENTS AND THEIR ATTENDANT
EXCLUSIONARY RULES.  THE TEST, AS THE PETITIONER'S ARGUMENT SUGGESTS,
IS WHETHER MRS. COOLIDGE, IN LIGHT OF ALL THE CIRCUMSTANCES OF THE
CASE, MUST BE REGARDED AS HAVING ACTED AS AN "INSTRUMENT" OR AGENT OF
THE STATE WHEN SHE PRODUCED HER HUSBAND'S BELONGINGS.  CF. UNITED
STATES V. GOLDBERG, 330 F.2D 30 (CA3), CERT. DENIED, 377 U.S. 953
(1964); PEOPLE V. TARANTINO, 45 CAL.2D 590, 290 P.2D 505 (1955); SEE
BYARS V. UNITED STATES, 273 U.S. 28; GAMBINO V. UNITED STATES, 275 U.S.
310. 

IN A SITUATION LIKE THE ONE BEFORE US THERE NO DOUBT ALWAYS EXIST
FORCES PUSHING THE SPOUSE TO COOPERATE WITH THE POLICE.  AMONG THESE
ARE THE SIMPLE BUT OFTEN POWERFUL CONVENTION OF OPENNESS AND HONESTY,
THE FEAR THAT SECRETIVE BEHAVIOR WILL INTENSIFY SUSPICION, AND
UNCERTAINTY AS TO WHAT COURSE IS MOST LIKELY TO BE HELPFUL TO THE
ABSENT SPOUSE.  BUT THERE IS NOTHING CONSTITUTIONALLY SUSPECT IN THE
EXISTENCE, WITHOUT MORE, OF THESE INCENTIVES TO FULL DISCLOSURE OR
ACTIVE COOPERATION WITH THE POLICE.  THE EXCLUSIONARY RULES WERE
FASHIONED "TO PREVENT, NOT TO REPAIR," AND THEIR TARGET IS OFFICIAL
MISCONDUCT.  THEY ARE "TO COMPEL RESPECT FOR THE CONSTITUTIONAL
GUARANTY IN THE ONLY EFFECTIVELY AVAILABLE WAY-- BY REMOVING THE
INCENTIVE TO DISREGARD IT."  ELKINS V. UNITED STATES, 364 U.S. 206,
217.  BUT IT IS NO PART OF THE POLICY UNDERLYING THE FOURTH AND
FOURTEENTH AMENDMENTS TO DISCOURAGE CITIZENS FROM AIDING TO THE UTMOST
OF THEIR ABILITY IN THE APPREHENSION OF CRIMINALS.  IF, THEN, THE
EXCLUSIONARY RULE IS PROPERLY APPLICABLE TO THE EVIDENCE TAKEN FROM THE
COOLIDGE HOUSE ON THE NIGHT OF FEBRUARY 2, IT MUST BE UPON THE BASIS
THAT SOME TYPE OF UNCONSTITUTIONAL POLICE CONDUCT OCCURRED.     YET IT
CANNOT BE SAID THAT THE POLICE SHOULD HAVE OBTAINED A WARRANT FOR THE
GUNS AND CLOTHING BEFORE THEY SET OUT TO VISIT MRS. COOLIDGE, SINCE
THEY HAD NO INTENTION OF RUMMAGING AROUND AMONG COOLIDGE'S EFFECTS OR
OF DISPOSSESSING HIM OF ANY OF HIS PROPERTY.  NOR CAN IT BE SAID THAT
THEY SHOULD HAVE OBTAINED COOLIDGE'S PERMISSION FOR A SEIZURE THEY DID
NOT INTEND TO MAKE.  THERE WAS NOTHING TO COMPEL THEM TO ANNOUNCE TO
THE SUSPECT THAT THEY INTENDED TO QUESTION HIS WIFE ABOUT HIS MOVEMENTS
ON THE NIGHT OF THE DISAPPEARANCE OR ABOUT THE THEFT FROM HIS
EMPLOYER.  ONCE MRS. COOLIDGE HAD ADMITTED THEM, THE POLICEMEN WERE
SURELY ACTING NORMALLY AND PROPERLY WHEN THEY ASKED HER, AS THEY HAD
ASKED THOSE QUESTIONED EARLIER IN THE INVESTIGATION, INCLUDING COOLIDGE
HIMSELF, ABOUT ANY GUNS THERE MIGHT BE IN THE HOUSE.  THE QUESTION
CONCERNING THE CLOTHES COOLIDGE HAD BEEN WEARING ON THE NIGHT OF THE
DISAPPEARANCE WAS LOGICAL AND IN NO WAY COERCIVE.  INDEED, ONE MIGHT
DOUBT THE COMPETENCE OF THE OFFICERS INVOLVED HAD THEY NOT ASKED
EXACTLY THE QUESTIONS THEY DID ASK.  AND SURELY WHEN MRS. COOLIDGE OF
HER OWN ACCORD PRODUCED THE GUNS AND CLOTHES FOR INSPECTION, RATHER
THAN SIMPLY DESCRIBING THEM, IT WAS NOT INCUMBENT ON THE POLICE TO STOP
HER OR AVERT THEIR EYES. 

THE CRUX OF THE PETITIONER'S ARGUMENT MUST BE THAT WHEN MRS.COOLIDGE
ASKED THE POLICEMEN WHETHER THEY WANTED THE GUNS, THEY SHOULD HAVE
REPLIED THAT THEY COULD NOT TAKE THEM, OR HAVE FIRST TELEPHONED
COOLIDGE AT THE POLICE STATION AND ASKED HIS PERMISSION TO TAKE THEM,
OR HAVE ASKED HER WHETHER SHE HAD BEEN AUTHORIZED BY HER HUSBAND TO
RELEASE THEM.  INSTEAD, AFTER ONE POLICEMAN HAD DECLINED THE OFFER, THE
OTHER TURNED AND SAID, "WE MIGHT AS WELL TAKE THEM," TO WHICH MRS.
COOLIDGE REPLIED, "IF YOU WOULD LIKE THEM, YOU MAY TAKE THEM." 

IN ASSESSING THE CLAIM THAT THIS COURSE OF CONDUCT AMOUNTED TO A
SEARCH AND SEIZURE, IT IS WELL TO KEEP IN MIND THAT MRS. COOLIDGE
DESCRIBED HER OWN MOTIVE AS THAT OF CLEARING HER HUSBAND, AND THAT SHE
BELIEVED THAT SHE HAD NOTHING TO HIDE.  SHE HAD SEEN HER HUSBAND
HIMSELF PRODUCE HIS GUNS FOR TWO OTHER POLICEMEN EARLIER IN THE WEEK,
AND THERE IS NOTHING TO INDICATE THAT SHE REALIZED THAT HE HAD OFFERED
ONLY THREE OF THEM FOR INSPECTION ON THAT OCCASION.  THE TWO OFFICERS
WHO QUESTIONED HER BEHAVED, AS HER OWN TESTIMONY SHOWS, WITH PERFECT
COURTESY.  THERE IS NOT THE SLIGHTEST IMPLICATION OF AN ATTEMPT ON
THEIR PART TO COERCE OR DOMINATE HER, OR, FOR THAT MATTER, TO DIRECT
HER ACTIONS BY THE MORE SUBTLE TECHNIQUES OF SUGGESTION THAT ARE
AVAILABLE TO OFFICIALS IN CIRCUMSTANCES LIKE THESE.  TO HOLD THAT THE
CONDUCT OF THE POLICE HERE WAS A SEARCH AND SEIZURE WOULD BE TO HOLD,
IN EFFECT, THAT A CRIMINAL SUSPECT HAS CONSTITUTIONAL PROTECTION
AGAINST THE ADVERSE CONSEQUENCES OF A SPONTANEOUS, GOOD-FAITH EFFORT BY
HIS WIFE TO CLEAR HIM OF SUSPICION.  /39/ 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE SUPREME COURT
OF NEW HAMPSHIRE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/0/  PARTS II-A, II-B, AND II-C OF THIS OPINION ARE JOINED ONLY BY
MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR. JUSTICE MARSHALL. 

/1/  DURING THE LIE-DETECTOR TEST, COOLIDGE HAD CONFESSED TO A THEFT
OF MONEY FROM HIS EMPLOYER.  SEE III-A OF TEXT, INFRA. 

/2/  FOR A VERY STRONG ARGUMENT THAT THIS EVIDENCE SHOULD HAVE BEEN
EXCLUDED BECAUSE ALTOGETHER LACKING IN PROBATIVE VALUE, SEE TRIBE,
TRIAL BY MATHEMATICS:  PRECISION AND RITUAL IN THE LEGAL PROCESS, 84
HARV.L.REV.  1329, 1342 N. 40 (1971). 

/3/  AFTER HEARING THE ATTORNEY GENERAL'S TESTIMONY ON THE ISSUANCE
OF THE WARRANTS, THE TRIAL JUDGE SAID: 

"I FOUND THAT AN IMPARTIAL MAGISTRATE WOULD HAVE DONE THE SAME AS YOU
DID.  I DON'T THINK, IN ALL SINCERITY, THAT I WOULD EXPECT THAT YOU
COULD WEAR TWO PAIRS OF SHOES." 

/4/  SEE ALSO GOULED V. UNITED STATES, 255 U.S. 298, 303-304
(1921): 

"IT WOULD NOT BE POSSIBLE TO ADD TO THE EMPHASIS WITH WHICH THE
FRAMERS OF OUR CONSTITUTION AND THIS COURT . . . HAVE DECLARED THE
IMPORTANCE TO POLITICAL LIBERTY AND TO THE WELFARE OF OUR COUNTRY OF
THE DUE OBSERVANCE OF THE RIGHTS GUARANTEED UNDER THE CONSTITUTION BY
THESE TWO AMENDMENTS (THE FOURTH AND FIFTH).  THE EFFECT OF THE
DECISIONS CITED IS:  THAT SUCH RIGHTS ARE DECLARED TO BE INDISPENSABLE
TO THE 'FULL ENJOYMENT OF PERSONAL SECURITY, PERSONAL LIBERTY AND
PRIVATE PROPERTY'; THAT THEY ARE TO BE REGARDED AS OF THE VERY ESSENCE
OF CONSTITUTIONAL LIBERTY; AND THAT THE GUARANTY OF THEM IS AS
IMPORTANT AND AS IMPERATIVE AS ARE THE GUARANTIES OF THE OTHER
FUNDAMENTAL RIGHTS OF THE INDIVIDUAL CITIZEN,-- THE RIGHT, TO TRIAL BY
JURY, TO THE WRIT OF HABEAS CORPUS AND TO DUE PROCESS OF LAW.  IT HAS
BEEN REPEATEDLY DECIDED THAT THESE AMENDMENTS SHOULD RECEIVE A LIBERAL
CONSTRUCTION, SO AS TO PREVENT STEALTHY ENCROACHMENT UPON OR 'GRADUAL
DEPRECIATION' OF THE RIGHTS SECURED BY THEM, BY IMPERCEPTIBLE PRACTICE
OF COURTS OR BY WELL-INTENTIONED BUT MISTAKENLY OVER-ZEALOUS EXECUTIVE
OFFICERS." 

SEE ALSO GO-BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344, 357. 

/5/  KATZ V. UNITED STATES, 389 U.S. 347, 357. 

/6/  JONES V. UNITED STATES, 357 U.S. 493, 499. 

/7/  MCDONALD V. UNITED STATES, 335 U.S. 451, 456. 

/8/  UNITED STATES V. JEFFERS, 342 U.S. 48, 51. 

/9/  SEE ENTICK V. CARRINGTON, 19 HOW.ST.TR. 1029, 95 ENG.REP.  807
(1765), AND WILKES V. WOOD, 19 HOW.ST.TR. 1153, 98 ENG.REP.  489
(1763). 

/10/  SEE ELKINS V. UNITED STATES, 364 U.S. 206. 

/11/  THE SUGGESTION IN PART III-A OF THE CONCURRING AND DISSENTING
OPINION OF MR. JUSTICE BLACK THAT THIS REPRESENTS THE FORMULATION OF "A
PER SE RULE REACHING FAR BEYOND" CHIMEL V. CALIFORNIA, 395 U.S. 752,
POST, AT 503, IS MISTAKEN.  THE QUESTION DISCUSSED HERE IS WHETHER
UNDER PRE-CHIMEL LAW THE POLICE COULD, CONTEMPORANEOUSLY WITH THE
ARREST OF COOLIDGE INSIDE HIS HOUSE, MAKE A SEARCH OF HIS CAR FOR
EVIDENCE-- I.E., THE PARTICLES LATER INTRODUCED AT HIS TRIAL.  THERE
CAN BE NO QUESTION THAT AFTER CHIMEL, SUCH A SEARCH COULD NOT BE
JUSTIFIED AS "INCIDENT" TO THE ARREST, SINCE CHIMEL HELD THAT A SEARCH
SO JUSTIFIED CAN EXTEND ONLY TO THE "ARRESTEE'S PERSON AND THE AREA
'WITHIN HIS IMMEDIATE CONTROL'-- CONSTRUING THAT PHRASE TO MEAN THE
AREA FROM WITHIN WHICH HE MIGHT GAIN POSSESSION OF A WEAPON OR
DESTRUCTIBLE EVIDENCE."  395 U.S.,AT 763.  THE QUITE DISTINCT QUESTION
WHETHER THE POLICE WERE ENTITLED TO SEIZE THE AUTOMOBILE AS EVIDENCE IN
PLAIN VIEW IS DISCUSSED IN PART II-C BELOW.  CF. N. 24, INFRA. 

/12/  COOPER V. CALIFORNIA, 386 U.S. 58, IS NOT IN POINT, SINCE
THERE THE STATE DID NOT RELY ON THE THEORY OF A SEARCH INCIDENT TO
ARREST, BUT SOUGHT TO JUSTIFY THE SEARCH ON OTHER GROUNDS.  ID., AT
60.  MR. JUSTICE BLACK'S OPINION FOR THE COURT IN COOPER REAFFIRMED
PRESTON V. UNITED STATES, 376 U.S. 364. 

/13/  267 U.S.,AT 153. 

/14/ ID., AT 156. 

/15/  UNITED STATES V. DI RE, 332 U.S. 581, 586. 

/16/  HUSTY V. UNITED STATES, 282 U.S. 694; BRINEGAR V. UNITED
STATES, 338 U.S. 160. 

/17/  A THIRD CASE THAT HAS SOMETIMES BEEN CITED AS AN APPLICATION
OF CARROLL V. UNITED STATES, 267 U.S. 132, IS SCHER V. UNITED STATES,
305 U.S. 251.  THERE, THE POLICE WERE FOLLOWING AN AUTOMOBILE THAT THEY
HAD PROBABLE CAUSE TO BELIEVE CONTAINED A LARGE QUANTITY OF CONTRABAND
LIQUOR.  THE FACTS WERE AS FOLLOWS: 

THE DRIVER "TURNED INTO A GARAGE A FEW FEET BACK OF HIS RESIDENCE
AND WITHIN THE CURTILAGE.  ONE OF THE PURSUING OFFICERS LEFT THEIR CAR
AND FOLLOWED.  AS PETITIONER WAS GETTING OUT OF HIS CAR THIS OFFICER
APPROACHED, ANNOUNCED HIS OFFICIAL CHARACTER, AND STATED HE WAS
INFORMED THAT THE CAR WAS HAULING BOOTLEG LIQUOR.  PETITIONER REPLIED,
'JUST A LITTLE FOR A PARTY.'  ASKED WHETHER THE LIQUOR WAS TAX PAID, HE
REPLIED THAT IT WAS CANADIAN WHISKEY; ALSO, HE SAID IT WAS IN THE TRUNK
AT THE REAR OF THE CAR.  THE OFFICER OPENED THE TRUNK AND FOUND . . . "
305 U.S.,AT 253. 

THE COURT HELD: 

"CONSIDERING THE DOCTRINE OF CARROLL V. UNITED STATES, 267 U.S. 132
. . . AND THE APPLICATION OF THIS TO THE FACTS THERE DISCLOSED, IT
SEEMS PLAIN ENOUGH THAT JUST BEFORE HE ENTERED THE GARAGE THE FOLLOWING
OFFICERS PROPERLY COULD HAVE STOPPED PETITIONER'S CAR, MADE SEARCH AND
PUT HIM UNDER ARREST.  SO MUCH WAS NOT SERIOUSLY CONTROVERTED AT THE
ARGUMENT. 

"PASSAGE OF THE CAR INTO THE OPEN GARAGE CLOSELY FOLLOWED BY THE
OBSERVING OFFICER DID NOT DESTROY THIS RIGHT.  NO SEARCH WAS MADE OF
THE GARAGE.  EXAMINATION OF THE AUTOMOBILE ACCOMPANIED AN ARREST,
WITHOUT OBJECTION AND UPON ADMISSION OF PROBABLE GUILT.  THE OFFICERS
DID NOTHING EITHER UNREASONABLE OR OPPRESSIVE.  AGNELLO V. UNITED
STATES, 269 U.S. 20, 30; WISNIEWSKI V. UNITED STATES, 47 F.2D 825, 826
(CA6 1931)."  305 U.S.,AT 254-255. 

BOTH AGNELLO, AT THE PAGE CITED, AND WISNIEWSKI DEALT WITH THE
ADMISSIBILITY OF EVIDENCE SEIZED DURING A SEARCH INCIDENT TO A LAWFUL
ARREST. 

/18/  IT IS FREQUENTLY SAID THAT OCCUPIED AUTOMOBILES STOPPED ON THE
OPEN HIGHWAY MAY BE SEARCHED WITHOUT A WARRANT BECAUSE THEY ARE
"MOBILE," OR "MOVABLE."  NO OTHER BASIS APPEARS FOR MR. JUSTICE WHITE'S
SUGGESTION IN HIS DISSENTING OPINION THAT WE SHOULD "TREAT SEARCHES OF
AUTOMOBILES AS WE DO THE ARREST OF A PERSON."  POST, AT 527.  IN THIS
CASE, IT IS, OF COURSE, TRUE THAT EVEN THOUGH COOLIDGE WAS IN JAIL, HIS
WIFE WAS MILES AWAY IN THE COMPANY OF TWO PLAINCLOTHESMEN, AND THE
COOLIDGE PROPERTY WAS UNDER THE GUARD OF TWO OTHER OFFICERS, THE
AUTOMOBILE WAS IN A LITERAL SENSE "MOBILE."  A PERSON WHO HAD THE KEYS
AND COULD SLIP BY THE GUARD COULD DRIVE IT AWAY.  WE ATTACH NO
CONSTITUTIONAL SIGNIFICANCE TO THIS SORT OF MOBILITY. 

FIRST, A GOOD NUMBER OF THE CONTAINERS THAT THE POLICE MIGHT
DISCOVER ON A PERSON'S PROPERTY AND WANT TO SEARCH ARE EQUALLY MOVABLE,
E.G., TRUNKS, SUITCASES, BOXES, BRIEFCASES, AND BAGS.  HOW ARE SUCH
OBJECTS TO BE DISTINGUISHED FROM AN UNOCCUPIED AUTOMOBILE-- NOT THEN
BEING USED FOR ANY ILLEGAL PURPOSE-- SITTING ON THE OWNER'S PROPERTY? 
IT IS TRUE THAT THE AUTOMOBILE HAS WHEELS AND ITS OWN LOCOMOTIVE
POWER.  BUT GIVEN THE VIRTUALLY UNIVERSAL AVAILABILITY OF AUTOMOBILES
IN OUR SOCIETY THERE IS LITTLE DIFFERENCE BETWEEN DRIVING THE CONTAINER
ITSELF AWAY AND DRIVING IT AWAY IN A VEHICLE BROUGHT TO THE SCENE FOR
THAT PURPOSE.  OF COURSE, IF THERE IS A CRIMINAL SUSPECT CLOSE ENOUGH
TO THE AUTOMOBILE SO THAT HE MIGHT GET A WEAPON FROM IT OR DESTROY
EVIDENCE WITHIN IT, THE POLICE MAY MAKE A SEARCH OF APPROPRIATELY
LIMITED SCOPE.  CHIMEL V. CALIFORNIA, 395 U.S. 752.  SEE II-A OF THE
TEXT, SUPRA.  BUT IF CARROLL V. UNITED STATES, 267 U.S. 132, PERMITS A
WARRANTLESS SEARCH OF AN UNOCCUPIED VEHICLE, ON PRIVATE PROPERTY AND
BEYOND THE SCOPE OF A VALID SEARCH INCIDENT TO AN ARREST, THEN IT WOULD
PERMIT AS WELL A WARRANTLESS SEARCH OF A SUITCASE OR A BOX.  WE HAVE
FOUND NO CASE THAT SUGGESTS SUCH AN EXTENSION OF CARROLL.  SEE NN. 16,
17, SUPRA. 

/19/  CF. UNITED STATES V. PAYNE, 429 F.2D 169 (CA9 1970).  IN THAT
CASE, TWO COUPLES WERE CAMPING IN AN INDIVIDUALLY ALLOTTED CAMPSITE IN
YOSEMITE NATIONAL PARK.  DURING THE EVENING, AN OFF-DUTY POLICEMAN
CAMPING WITH HIS FAMILY IN AN ADJOINING SITE OBSERVED THE TWO COUPLES
SMOKING A SUBSTANCE HE BELIEVED TO BE MARIHUANA AND ALSO OBSERVED THEM
MAKING WHAT HE THOUGHT "FURTIVE" MOVEMENTS TO REMOVE OBJECTS HE THOUGHT
TO BE DRUGS FROM THE GLOVE COMPARTMENT OF A CAR PARKED NEARBY.  HE
SUMMONED A PARK RANGER, AND THE TWO ENTERED THE CAMPSITE.  THEY FOUND
THAT ONE OF THE COUPLES WAS PREPARING TO BED DOWN FOR THE NIGHT, WHILE
THE COUPLE TO WHOM THE CAR BELONGED WERE VISITING IN ANOTHER CAMPSITE. 
THE OFFICERS SEARCHED THE UNOCCUPIED PARKED AUTOMOBILE, FOUND 12
SECONAL CAPSULES, AND ARRESTED THE COUPLE WHO HAD STAYED BEHIND.  THE
GOVERNMENT ATTEMPTED TO UPHOLD THE SEARCH UNDER CARROLL, SUPRA, AND
BRINEGAR, SUPRA.  THE COURT OFAPPEALS ANSWERED: 

"WHILE IT IS TRUE THAT THE SUPREME COURT HAS ENUNCIATED SLIGHTLY
DIFFERENT RULES CONCERNING A SEARCH OF AN AUTOMOBILE WITHOUT A WARRANT,
THE RATIONALE IS APPARENTLY BASED UPON THE FACT THAT A 'VEHICLE CAN BE
QUICKLY MOVED OUT OF THE LOCALITY OR JURISDICTION IN WHICH THE WARRANT
MUST BE SOUGHT.'  CHIMEL V. CALIFORNIA, 395 U.S. 752, 764 . . . IN THE
INSTANT CASE THE SEARCH OF THE VOLKSWAGEN CANNOT BE JUSTIFIED UPON THIS
REASONING.  THERE IS NO INDICATION IN THE RECORD THAT THE APPELLANT OR
ANY OF HIS PARTY WERE PREPARING TO LEAVE, AND QUITE TO THE CONTRARY IT
IS CLEAR THAT APPELLANT WAS BEDDING DOWN FOR THE EVENING AND THAT THERE
WAS AMPLE TIME TO SECURE THE NECESSARY WARRANT FOR THE SEARCH OF THE
CAR HAD (THE PARK RANGER) BELIEVED THERE WAS PROBABLE CAUSE TO SEEK
ONE."  429 F.2D, AT 171-172. 

/20/  PART III-B OF THE CONCURRING AND DISSENTING OPINION OF MR.
JUSTICE BLACK ARGUES WITH VEHEMENCE THAT THIS CASE MUST SOMEHOW BE
CONTROLLED BY CHAMBERS V. MARONEY, 399 U.S. 42, YET THE PRECISE
APPLICABILITY OF CHAMBERS IS NEVER MADE CLEAR.  ON ITS FACE, CHAMBERS
PURPORTS TO DEAL ONLY WITH SITUATIONS IN WHICH THE POLICE MAY
LEGITIMATELY MAKE A WARRANTLESS SEARCH UNDER CARROLL V. UNITED STATES,
267 U.S. 132.  SINCE THE CARROLL RULE DOES NOT APPLY IN THE
CIRCUMSTANCES OF THIS CASE, THE POLICE COULD NOT HAVE SEARCHED THE CAR
WITHOUT A WARRANT WHEN THEY ARRESTED COOLIDGE.  THUS MR. JUSTICE
BLACK'S ARGUMENT MUST BE THAT CHAMBERS SOMEHOW OPERATED SUB SILENTIO TO
EXTEND THE BASIC DOCTRINE OF CARROLL.  IT IS TRUE THAT THE ACTUAL
SEARCH OF THE AUTOMOBILE IN CHAMBERS WAS MADE AT THE POLICE STATION
MANY HOURS AFTER THE CAR HAD BEEN STOPPED ON THE HIGHWAY, WHEN THE CAR
WAS NO LONGER MOVABLE, ANY "EXIGENT CIRCUMSTANCES" HAD PASSED, AND, FOR
ALL THE RECORD SHOWS, THERE WAS A MAGISTRATE EASILY AVAILABLE. 
NONETHELESS, THE ANALOGY TO THIS CASE IS MISLEADING.  THE RATIONALE OF
CHAMBERS IS THAT GIVEN A JUSTIFIED INITIAL INTRUSION, THERE IS LITTLE
DIFFERENCE BETWEEN A SEARCH ON THE OPEN HIGHWAY AND A LATER SEARCH AT
THE STATION.  HERE, WE DEAL WITH THE PRIOR QUESTION OF WHETHER THE
INITIAL INTRUSION IS JUSTIFIED.  FOR THIS PURPOSE, IT SEEMS ABUNDANTLY
CLEAR THAT THERE IS A SIGNIFICANT CONSTITUTIONAL DIFFERENCE BETWEEN
STOPPING, SEIZING, AND SEARCHING A CAR ON THE OPEN HIGHWAY, AND
ENTERING PRIVATE PROPERTY TO SEIZE AND SEARCH AN UNOCCUPIED, PARKED
VEHICLE NOT THEN BEING USED FOR ANY ILLEGAL PURPOSE.  THAT THE POLICE
MAY HAVE BEEN LEGALLY ON THE PROPERTY IN ORDER TO ARREST COOLIDGE IS,
OF COURSE, IMMATERIAL, SINCE, AS SHOWN IN II-A OF THE TEXT, SUPRA, THAT
PURPOSE COULD NOT AUTHORIZE SEARCH OF THE CAR EVEN UNDER UNITED STATES
V. RABINOWITZ, 339 U.S. 56. 

/21/  COOPER V. CALIFORNIA, 386 U.S. 58, IS NO MORE IN POINT HERE
THAN IN THE CONTEXT OF A SEARCH INCIDENT TO A LAWFUL ARREST.  SEE N.
12, SUPRA.  IN COOPER, THE SEIZURE OF THE PETITIONER'S CAR WAS MANDATED
BY CALIFORNIA STATUTE, AND ITS LEGALITY WAS NOT QUESTIONED.  THE CASE
STANDS FOR THE PROPOSITION THAT, GIVEN AN UNQUESTIONABLY LEGAL SEIZURE,
THERE ARE SPECIAL CIRCUMSTANCES THAT MAY VALIDATE A SUBSEQUENT
WARRANTLESS SEARCH.  CF. CHAMBERS, SUPRA.  THE CASE CERTAINLY SHOULD
NOT BE READ AS HOLDING THAT THE POLICE CAN DO WITHOUT A WARRANT AT THE
POLICE STATION WHAT THEY ARE FORBIDDEN TO DO WITHOUT A WARRANT AT THE
PLACE OF SEIZURE. 

/22/  COOLIDGE HAD ADMITTED THAT ON THE NIGHT OF PAMELA MASON'S
DISAPPEARANCE HE HAD STOPPED HIS PONTIAC ON THE SIDE OF THE HIGHWAY
OPPOSITE THE PLACE WHERE THE BODY WAS FOUND.  HE CLAIMED THE CAR WAS
STUCK IN THE SNOW.  TWO WITNESSES, WHO HAD STOPPED AND ASKED HIM IF HE
NEEDED HELP, TESTIFIED THAT HIS CAR WAS NOT STUCK. 

/23/  SEE NN. 12 AND 21, SUPRA. 

/24/  THE "PLAIN VIEW" EXCEPTION TO THE WARRANT REQUIREMENT IS NOT
IN CONFLICT WITH THE LAW OF SEARCH INCIDENT TO A VALID ARREST EXPRESSED
IN CHIMEL V. CALIFORNIA, 395 U.S. 752.  THE COURT THERE HELD THAT
"(THERE IS AMPLE JUSTIFICATION . . . FOR A SEARCH OF THE ARRESTEE'S
PERSON AND THE AREA 'WITHIN HIS IMMEDIATE CONTROL'-- CONSTRUING THAT
PHRASE TO MEAN THE AREA FROM WITHIN WHICH HE MIGHT GAIN POSSESSION OF A
WEAPON OR DESTRUCTIBLE EVIDENCE."  ID., AT 763.  THE "PLAIN VIEW"
DOCTRINE WOULD NORMALLY JUSTIFY AS WELL THE SEIZURE OF OTHER EVIDENCE
THAT CAME TO LIGHT DURING SUCH AN APPROPRIATELY LIMITED SEARCH.  THE
COURT IN CHIMEL WENT ON TO HOLD THAT "(THERE IS NO COMPARABLE
JUSTIFICATION, HOWEVER, FOR ROUTINELY SEARCHING ANY ROOM OTHER THAN
THAT IN WHICH AN ARREST OCCURS-- OR, FOR THAT MATTER, FOR SEARCHING
THROUGH ALL THE DESK DRAWERS OR OTHER CLOSED OR CONCEALED AREAS IN THAT
ROOM ITSELF.  SUCH SEARCHES, IN THE ABSENCE OF WELL-RECOGNIZED
EXCEPTIONS, MAY BE MADE ONLY UNDER THE AUTHORITY OF A SEARCH WARRANT." 
IBID. WHERE, HOWEVER, THE ARRESTING OFFICER INADVERTENTLY COMES WITHIN
PLAIN VIEW OF A PIECE OF EVIDENCE, NOT CONCEALED, ALTHOUGH OUTSIDE OF
THE AREA UNDER THE IMMEDIATE CONTROL OF THE ARRESTEE, THE OFFICER MAY
SEIZE IT, SO LONG AS THE PLAIN VIEW WAS OBTAINED IN THE COURSE OF AN
APPROPRIATELY LIMITED SEARCH OF THE ARRESTEE. 

/25/  TRUPIANO V. UNITED STATES, SUPRA, APPLIED THE PRINCIPLE IN
CIRCUMSTANCES SOMEWHAT SIMILAR TO THOSE HERE.  FEDERAL LAW ENFORCEMENT
OFFICERS HAD INFILTRATED AN AGENT INTO A GROUP ENGAGED IN MANUFACTURING
ILLEGAL LIQUOR.  THE AGENT HAD GIVEN THEM THE FULLEST POSSIBLE
DESCRIPTION OF THE LAYOUT AND EQUIPMENT OF THE ILLEGAL DISTILLERY. 
ALTHOUGH THEY HAD AMPLE OPPORTUNITY TO DO SO, THE INVESTIGATORS FAILED
TO PROCURE SEARCH OR ARREST WARRANTS.  INSTEAD, THEY STAGED A
WARRANTLESS NIGHTTIME RAID ON THE PREMISES.  AFTER ENTERING THE
PROPERTY, ONE OF THE OFFICERS LOOKED THROUGH THE DOORWAY OF A SHED, AND
SAW ONE OF THE CRIMINALS STANDING BESIDE AN ILLEGAL DISTILLERY.  THE
OFFICER ENTERED, MADE A LEGAL ARREST, AND SEIZED THE STILL.  THIS COURT
HELD IT INADMISSIBLE AT TRIAL, REJECTING THE GOVERNMENT'S ARGUMENT
BASED ON "THE LONG LINE OF CASES RECOGNIZING THAT AN ARRESTING OFFICER
MAY LOOK AROUND AT THE TIME OF THE ARREST AND SEIZE THOSE FRUITS AND
EVIDENCES OF CRIME OR THOSE CONTRABAND ARTICLES WHICH ARE IN PLAIN
SIGHT AND IN HIS IMMEDIATE AND DISCERNIBLE PRESENCE."  334 U.S.,AT
704.  THE COURT REASONED THAT THERE WAS NO EXCUSE WHATEVER FOR THE
FAILURE OF THE AGENTS TO OBTAIN A WARRANT BEFORE ENTERING THE PROPERTY,
AND THAT THE MERE FACT THAT A SUSPECT WAS ARRESTED IN THE PROXIMITY OF
THE STILL PROVIDED NO "EXIGENT CIRCUMSTANCE" TO VALIDATE A WARRANTLESS
SEIZURE.  THE SCOPE OF THE INTRUSION PERMITTED TO MAKE THE VALID ARREST
DID NOT INCLUDE A WARRANTLESS SEARCH FOR AND SEIZURE OF A STILL WHOSE
EXACT LOCATION AND ILLEGAL USE WERE KNOWN WELL IN ADVANCE.  THE FACT
THAT AT THE TIME OF THE ARREST THE STILL WAS IN PLAIN VIEW AND NEARBY
WAS THEREFORE IRRELEVANT.  THE AGENTS WERE IN EXACTLY THE SAME POSITION
AS THE POLICEMEN IN TAYLOR V. UNITED STATES, 286 U.S. 1, WHO HAD
UNMISTAKABLE EVIDENCE OF SIGHT AND SMELL THAT CONTRABAND LIQUOR WAS
STORED IN A GARAGE, BUT NONETHELESS VIOLATED THE FOURTH AMENDMENT WHEN
THEY ENTERED AND SEIZED IT WITHOUT A WARRANT. 

TRUPIANO, TO BE SURE, DID NOT LONG REMAIN UNDISTURBED.  THE
EXTREMELY RESTRICTIVE VIEW TAKEN THERE OF THE ALLOWABLE EXTENT OF A
SEARCH AND SEIZURE INCIDENT TO LAWFUL ARREST WAS REJECTED IN UNITED
STATES V. RABINOWITZ, 339 U.S. 56.  SEE CHIMEL V. CALIFORNIA, 395 U.S.
752.  THE CASE DEMONSTRATES, HOWEVER, THE OPERATION OF THE GENERAL
PRINCIPLE THAT "PLAIN VIEW" ALONE CAN NEVER JUSTIFY A WARRANTLESS
SEIZURE.  CF. N. 24, SUPRA. 

/26/  NONE OF THE CASES CITED IN PART III-C OF THE CONCURRING AND
DISSENTING OPINION OF MR. JUSTICE BLACK CASTS ANY DOUBT UPON THIS
CONCLUSION.  IN STEELE V. UNITED STATES, 267 U.S. 498, AGENTS OBSERVED
CASES MARKED "WHISKEY" BEING TAKEN INTO A BUILDING FROM A TRUCK.  ON
THIS BASIS, THEY OBTAINED A WARRANT TO SEARCH THE PREMISES FOR
CONTRABAND LIQUOR.  IN THE COURSE OF THE SEARCH, THEY CAME UPON A GREAT
DEAL OF WHISKEY AND GIN-- NOT THAT THEY HAD SEEN UNLOADED-- AND VARIOUS
BOTTLING EQUIPMENT, AND SEIZED ALL THEY FOUND. 

IN WARDEN V. HAYDEN, 387 U.S. 294, THE POLICE ENTERED AND SEARCHED A
HOUSE IN HOT PURSUIT OF A FLEEING ARMED ROBBER.  THE COURT POINTED OUT
THAT "(SPEED HERE WAS ESSENTIAL, AND ONLY A THOROUGH SEARCH OF THE
HOUSE FOR PERSONS AND WEAPONS COULD HAVE INSURED THAT HAYDEN WAS THE
ONLY MAN PRESENT AND THAT THE POLICE HAD CONTROL OF ALL WEAPONS WHICH
COULD BE USED AGAINST THEM OR TO EFFECT AN ESCAPE."  387 U.S.,AT 299. 
THE COURT THEN ESTABLISHED WITH PAINSTAKING CARE THE VARIOUS ARTICLES
OF CLOTHING SEIZED WERE DISCOVERED DURING A SEARCH DIRECTED AT THE
ROBBER AND HIS WEAPONS.  ID., AT 299-300. 

IN UNITED STATES V. LEE, 274 U.S. 559, A COAST GUARD PATROL
APPROACHED A BOAT ON THE HIGH SEAS AT NIGHT.  A SEARCHLIGHT WAS TURNED
ON THE BOAT AND REVEALED CASES OF CONTRABAND.  THE LIQUOR SUBSEQUENTLY
SEIZED WAS NEVER INTRODUCED IN EVIDENCE, BUT THE SEIZING OFFICERS WERE
ALLOWED TO TESTIFY TO WHAT THEY HAD SEEN.  AS THE COURT PUT IT:  "A
LATER TRESPASS BY THE OFFICERS, IF ANY, DID NOT RENDER INADMISSIBLE IN
EVIDENCE KNOWLEDGE LEGALLY OBTAINED."  274 U.S.,AT 563. 

IN MARRON V. UNITED STATES, 275 U.S. 192, OFFICERS RAIDED A
SPEAKEASY WITH A WARRANT TO SEARCH FOR AND SEIZE CONTRABAND LIQUOR. 
THEY ARRESTED THE BARTENDER AND SEIZED A NUMBER OF BILLS AND OTHER
PAPERS IN PLAIN VIEW ON THE BAR.  WHILE SEARCHING A CLOSET FOR LIQUOR
THEY CAME ACROSS A LEDGER KEPT IN THE OPERATION OF THE ILLEGAL
BUSINESS, WHICH THEY ALSO SEIZED.  THERE IS NO SHOWING WHATEVER THAT
THESE SEIZURES OUTSIDE THE WARRANT WERE PLANNED IN ADVANCE.  THE MARRON
COURT UPHELD THEM AS "INCIDENT" TO THE ARREST.  THE "PLAIN VIEW" ASPECT
OF THE CASE WAS LATER EMPHASIZED IN ORDER TO AVOID THE IMPLICATION THAT
ARRESTING OFFICERS ARE ENTITLED TO MAKE AN EXPLORATORY SEARCH OF THE
PREMISES WHERE THE ARREST OCCURS.  SEE GO-BART IMPORTING CO. V. UNITED
STATES, 282 U.S.,AT 358; UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 465;
UNITED STATES V. RABINOWITZ, 339 U.S.,AT 78 (FRANKFURTER, J.,
DISSENTING).  THUS MARRON, LIKE STEELE, SUPRA, WARDEN, SUPRA, AND LEE,
SUPRA, CAN HARDLY BE CITED FOR THE PROPOSITION THAT THE POLICE MAY
JUSTIFY A PLANNED WARRANTLESS SEIZURE BY MANEUVERING THEMSELVES WITHIN
"PLAIN VIEW" OF THE OBJECT THEY WANT. 

FINALLY, KER V. CALIFORNIA, 374 U.S. 23, IS FULLY DISCUSSED IN N.
28, INFRA. 

/27/  MR. JUSTICE BLACK LAMENTS THAT THE COURT TODAY "ABOLISHES
SEIZURE INCIDENT TO ARREST" (BUT SEE N. 24, SUPRA), WHILE MR. JUSTICE
WHITE NO LESS FORCEFULLY ASSERTS THAT THE COURT'S "NEW RULE" WILL
"ACCOMPLISH NOTHING."  IN ASSESSING THESE CLAIMS, IT IS WELL TO KEEP IN
MIND THAT WE DEAL HERE WITH A PLANNED WARRANTLESS SEIZURE.  THIS COURT
HAS NEVER PERMITTED THE LEGITIMATION OF A PLANNED WARRANTLESS SEIZURE
ON PLAIN-VIEW GROUNDS, SEE N. 26, SUPRA, AND TO DO SO HERE WOULD BE
FLATLY INCONSISTENT WITH THE EXISTING BODY OF FOURTH AMENDMENT LAW.  A
LONG LINE OF CASES, OF WHICH THOSE CITED IN THE TEXT, AT N. 25, SUPRA,
ARE ONLY A SAMPLE, MAKE IT CLEAR BEYOND DOUBT THAT THE MERE FACT THAT
THE POLICE HAVE LEGITIMATELY OBTAINED A PLAIN VIEW OF A PIECE OF
INCRIMINATING EVIDENCE IS NOT ENOUGH TO JUSTIFY A WARRANTLESS SEIZURE. 
ALTHOUGH MR. JUSTICE BLACK AND MR. JUSTICE WHITE APPEAR TO HOLD
CONTRASTING VIEWS OF THE IMPORT OF TODAY'S DECISION, THEY ARE IN
AGREEMENT THAT THIS WARRANT REQUIREMENT SHOULD BE IGNORED WHENEVER THE
SEIZING OFFICERS ARE ABLE TO ARRANGE TO MAKE AN ARREST WITHIN SIGHT OF
THE OBJECT THEY ARE AFTER.  "THE EXCEPTIONS CANNOT BE ENTHRONED INTO
THE RULE."  UNITED STATES V. RABINOWITZ, 339 U.S.,AT 80 (FRANKFURTER,
J., DISSENTING).  WE RECOGNIZED THE DANGERS OF ALLOWING THE EXTENT OF
FOURTH AMENDMENT PROTECTIONS TO TURN ON THE LOCATION OF THE ARRESTEE IN
CHIMEL V. CALIFORNIA, 395 U.S.,AT 767, NOTING THAT THE LAW OF SEARCH
INCIDENT TO ARREST AS ENUNCIATED PRIOR TO CHIMEL, "LAW ENFORCEMENT
OFFICIALS (HAD) THE OPPORTUNITY TO ENGAGE IN SEARCHES NOT JUSTIFIED BY
PROBABLE CAUSE, BY THE SIMPLE EXPEDIENT OF ARRANGING TO ARREST SUSPECTS
AT HOME RATHER THAN ELSEWHERE."  CF. TRUPIANO V. UNITED STATES, SUPRA,
N. 25, WHERE THE COURT HELD: 

"AS WE HAVE SEEN, THE EXISTENCE OF (THE ILLEGAL STILL) AND THE
DESIRABILITY OF SEIZING IT WERE KNOWN TO THE AGENTS LONG BEFORE THE
SEIZURE AND FORMED ONE OF THE MAIN PURPOSES OF THE RAID.  LIKEWISE, THE
ARREST OF ANTONIOLE (THE PERSON FOUND IN THE SHED WITH THE STILL) . . .
WAS A FORESEEABLE EVENT MOTIVATING THE RAID.  BUT THE PRECISE LOCATION
OF THE PETITIONERS AT THE TIME OF THEIR ARREST HAD NO RELATION TO THE
FORESEEABILITY OR NECESSITY OF THE SEIZURE.  THE PRACTICABILITY OF
OBTAINING A SEARCH WARRANT DID NOT TURN UPON WHETHER ANTONIOLE AND THE
OTHERS WERE WITHIN THE DISTILLERY BUILDING WHEN ARRESTED OR UPON
WHETHER THEY WERE THEN ENGAGED IN OPERATING THE ILLICIT EQUIPMENT . . .
ANTONIOLE MIGHT WELL HAVE BEEN OUTSIDE THE BUILDING AT THAT PARTICULAR
TIME.  IF THAT HAD BEEN THE CASE AND HE HAD BEEN ARRESTED IN THE
FARMYARD, THE ENTIRE ARGUMENT ADVANCED BY THE GOVERNMENT IN SUPPORT OF
THE SEIZURE WITHOUT WARRANT WOULD COLLAPSE.  WE DO NOT BELIEVE THAT THE
APPLICABILITY OF THE FOURTH AMENDMENT TO THE FACTS OF THIS CASE DEPENDS
UPON SUCH A FORTUITOUS FACTOR AS THE PRECISE LOCATION OF ANTONIOLE AT
THE TIME OF THE RAID."  334 U.S.,AT 707-708. 

/28/  KER V. CALIFORNIA, 374 U.S. 23, IS NOT TO THE CONTRARY.  IN
THAT CASE, THE POLICE HAD PROBABLE CAUSE TO ENTER KER'S APARTMENT AND
ARREST HIM, AND THEY MADE AN ENTRY FOR THAT PURPOSE.  THEY DID NOT HAVE
A SEARCH WARRANT, BUT THE COURT HELD THAT "TIME . . . WAS OF THE
ESSENCE," SO THAT A WARRANT WAS UNNECESSARY.  AS THE POLICE ENTERED THE
LIVING ROOM, KER'S WIFE EMERGED FROM THE ADJACENT KITCHEN.  ONE OF THE
OFFICERS MOVED TO THE DOOR OF THE KITCHEN, LOOKED IN, AND OBSERVED A
BRICK OF MARIHUANA IN PLAIN VIEW ON A TABLE.  THE OFFICER BROUGHT KER
AND HIS WIFE INTO THE KITCHEN, QUESTIONED THEM, AND, WHEN THEY FAILED
TO EXPLAIN THE MARIHUANA, ARRESTED THEM, AND SEIZED THE CONTRABAND. 
THE POLICE THEN SEARCHED THE WHOLE APARTMENT AND FOUND VARIOUS OTHER
INCRIMINATING EVIDENCE.  THE COURT HELD THAT THE GENERAL EXPLORATORY
SEARCH OF THE WHOLE APARTMENT "WAS WELL WITHIN THE LIMITS UPHELD IN
HARRIS V. UNITED STATES (331 U.S. 145)" FOR A SEARCH INCIDENT TO A
LAWFUL ARREST.  THE COURT ALSO REJECTED KER'S CLAIM THAT THE SEIZURE OF
THE BRICK OF MARIHUANA IN THE KITCHEN WAS ILLEGAL BECAUSE THE POLICE
HAD "SEARCHED" FOR IT (BY GOING TO THE DOOR OF THE KITCHEN AND LOOKING
IN) BEFORE MAKING ANY ARREST.  THE COURT REASONED THAT WHEN MRS. KER
EMERGED FROM THE KITCHEN IT WAS REASONABLE FOR THE OFFICER TO GO TO THE
DOOR AND LOOK IN, AND THAT WHEN HE SAW THE BRICK OF MARIHUANA HE WAS
NOT ENGAGED IN ANY "SEARCH" AT ALL.  ONCE HE HAD ARRESTED THE KERS, THE
ACTUAL SEIZURE OF THE BRICK WAS LAWFUL BECAUSE "INCIDENT" TO THE
ARREST.  374 U.S.,AT 42-43. 

KER IS DISTINGUISHABLE FROM THE PRESENT CASE ON AT LEAST THE
FOLLOWING GROUNDS:  IN KER, THE COURT FOUND THAT "THE OFFICERS ENTERED
THE APARTMENT FOR THE PURPOSE OF ARRESTING GEORGE KER," RATHER THAN FOR
PURPOSES OF SEIZURE OR SEARCH, 374 U.S.,AT 42-43; EXIGENT CIRCUMSTANCES
JUSTIFIED THE FAILURE TO OBTAIN A SEARCH WARRANT; THE DISCOVERY OF THE
BRICK OF MARIHUANA WAS FORTUITOUS; THE MARIHUANA WAS CONTRABAND EASILY
DESTROYED; AND IT WAS IN THE IMMEDIATE PROXIMITY OF THE KERS AT THE
MOMENT OF THEIR ARREST SO THAT THE SEIZURE WAS UNQUESTIONABLY LAWFUL
UNDER THE SEARCH-INCIDENT LAW OF THE TIME, AND MIGHT BE LAWFUL UNDER
THE MORE RESTRICTIVE STANDARD OF CHIMEL V. CALIFORNIA, 395 U.S. 752. 
NOT ONE OF THESE ELEMENTS WAS PRESENT IN THE CASE BEFORE US.     /29/
UNITED STATES V. RABINOWITZ, SUPRA, AT 66. 

/30/ SEE THE CASES CITED IN NN. 5-8, SUPRA, AND IN THE TEXT AT N.
25, SUPRA. 

/31/  SEE CARROLL V. UNITED STATES, SUPRA, AND CASES DISCUSSED IN
PART II-B ABOVE (AUTOMOBILES); KATZ V. UNITED STATES, SUPRA (ELECTRONIC
SURVEILLANCE); TERRY V. OHIO, 392 U.S. 1; SIBRON V. NEW YORK, 392 U.S.
40 (STREET SEARCHES); CAMARA V. MUNICIPAL COURT, 387 U.S. 523; SEE V.
SEATTLE, 387 U.S. 541 (ADMINISTRATIVE SEARCHES). 

/32/  E.G., GIORDENELLO V. UNITED STATES, 357 U.S. 480. 

/33/  E.G., MARRON V. UNITED STATES, SUPRA; UNITED STATES V.
RABINOWITZ, SUPRA.     /34/  E.G., WONG SUN V. UNITED STATES, 371 U.S.
471. 

/35/  E.G., TRUPIANO V. UNITED STATES, SUPRA; WARDEN V. HAYDEN,
SUPRA; KER V. CALIFORNIA, SUPRA. 

/36/  DORMAN V. UNITED STATES, 140 U.S.APP.D.C. 313, 435 F.2D 385
(1970). 

/37/  KATZ V. UNITED STATES, SUPRA, AT 357. 

/38/  GOULED V. UNITED STATES, 255 U.S.,AT 304. 

/39/  CF. RECENT CASES, 79 HARV.L.REV.  1513, 1519 (1966); NOTE,
SEIZURES BY PRIVATE PARTIES:  EXCLUSION IN CRIMINAL CASES, 19
STAN.L.REV.  608 (1967). 

MR. JUSTICE HARLAN, CONCURRING. 

FROM THE SEVERAL OPINIONS THAT HAVE BEEN FILED IN THIS CASE IT IS
APPARENT THAT THE LAW OF SEARCH AND SEIZURE IS DUE FOR AN OVERHAULING. 
STATE AND FEDERAL LAW ENFORCEMENT OFFICERS AND PROSECUTORIAL
AUTHORITIES MUST FIND QUITE INTOLERABLE THE PRESENT STATE OF
UNCERTAINTY, WHICH EXTENDS EVEN TO SUCH AN EVERYDAY QUESTION AS THE
CIRCUMSTANCES UNDER WHICH POLICE MAY ENTER A MAN'S PROPERTY TO ARREST
HIM AND SEIZE A VEHICLE BELIEVED TO HAVE BEEN USED DURING THE
COMMISSION OF A CRIME. 

I WOULD BEGIN THIS PROCESS OF RE-EVALUATION BY OVERRULING MAPP V.
OHIO, 367 U.S. 643 (1961), AND KER V. CALIFORNIA, 374 U.S. 23 (1963). 
THE FORMER OF THESE CASES MADE THE FEDERAL "EXCLUSIONARY RULE"
APPLICABLE TO THE STATES.  THE LATTER FORCED THE STATES TO FOLLOW ALL
THE INS AND OUTS OF THIS COURT'S FOURTH AMENDMENT DECISIONS, HANDED
DOWN IN FEDERAL CASES. 

IN COMBINATION MAPP AND KER HAVE BEEN PRIMARILY RESPONSIBLE FOR
BRINGING ABOUT SERIOUS DISTORTIONS AND INCONGRUITIES IN THIS FIELD OF
CONSTITUTIONAL LAW.  BASICALLY THESE HAVE HAD TWO ASPECTS, AS I BELIEVE
AN EXAMINATION OF OUR MORE RECENT OPINIONS AND CERTIORARI DOCKET WILL
SHOW.  FIRST, THE STATES HAVE BEEN PUT IN A FEDERAL MOLD WITH RESPECT
TO THIS ASPECT OF CRIMINAL LAW ENFORCEMENT, THUS DEPRIVING THE COUNTRY
OF THE OPPORTUNITY TO OBSERVE THE EFFECTS OF DIFFERENT PROCEDURES IN
SIMILAR SETTINGS.  SEE, E.G., OAKS, STUDYING THE EXCLUSIONARY RULE IN
SEARCH AND SEIZURE, 37 U.CHI.L.REV.  665 (1970), SUGGESTING THAT THE
ASSUMED "DETERRENT VALUE" OF THE EXCLUSIONARY RULE HAS NEVER BEEN
ADEQUATELY DEMONSTRATED OR DISPROVED, AND POINTING OUT THAT BECAUSE OF
MAPP ALL COMPARATIVE STATISTICS ARE 10 YEARS OLD AND NO NEW ONES CAN BE
OBTAINED.  SECOND, IN ORDER TO LEAVE SOME ROOM FOR THE STATES TO COPE
WITH THEIR OWN DIVERSE PROBLEMS, THERE HAS BEEN GENERATED A TENDENCY TO
RELAX FEDERAL REQUIREMENTS UNDER THE FOURTH AMENDMENT, WHICH NOW GOVERN
STATE PROCEDURES AS WELL.  FOR AN ILLUSTRATION OF THAT TENDENCY IN
ANOTHER CONSTITUTIONAL FIELD, AGAIN RESULTING FROM THE INFELICITOUS
"INCORPORATION" DOCTRINE, SEE WILLIAMS V. FLORIDA, 399 U.S. 78 (1970). 
UNTIL WE FACE UP TO THE BASIC CONSTITUTIONAL MISTAKES OF MAPP AND KER,
NO SOLID PROGRESS IN SETTING THINGS STRAIGHT IN SEARCH AND SEIZURE LAW
WILL, IN MY OPINION, OCCUR. 

BUT FOR MAPP AND KER, I WOULD HAVE LITTLE DIFFICULTY IN VOTING TO
SUSTAIN THIS CONVICTION, FOR I DO NOT THINK THAT ANYTHING THE STATE DID
IN THIS CASE COULD BE SAID TO OFFEND THOSE VALUES WHICH ARE "AT THE
CORE OF THE FOURTH AMENDMENT."  WOLF V. COLORADO, 338 U.S. 25, 27
(1949); CF. IRVINE V. CALIFORNIA, 347 U.S. 128 (1954); ROCHIN V.
CALIFORNIA, 342 U.S. 165 (1952). 

BECAUSE OF MAPP AND KER, HOWEVER, THIS CASE MUST BE JUDGED IN TERMS
OF FEDERAL STANDARDS, AND ON THAT BASIS I CONCUR, ALTHOUGH NOT WITHOUT
DIFFICULTY, IN PARTS I, II-D, AND III OF THE COURT'S OPINION AND IN THE
JUDGMENT OF THE COURT.  /1/  IT MUST BE RECOGNIZED THAT THE CASE IS A
CLOSE ONE.  THE REASON I AM TIPPED IN FAVOR OF MR. JUSTICE STEWART'S
POSITION IS THAT A CONTRARY RESULT IN THIS CASE WOULD, I FEAR, GO FAR
TOWARD RELEGATING THE WARRANT REQUIREMENT OF THE FOURTH AMENDMENT TO A
POSITION OF LITTLE CONSEQUENCE IN FEDERAL SEARCH AND SEIZURE LAW, A
COURSE WHICH SEEMS TO ME OPPOSITE TO THE ONE WE TOOK IN CHIMEL V.
CALIFORNIA, 395 U.S. 752 (1969), TWO TERMS AGO. 

RECENT SCHOLARSHIP HAS SUGGESTED THAT IN EMPHASIZING THE WARRANT
REQUIREMENT OVER THE REASONABLENESS OF THE SEARCH THE COURT HAS "STOOD
THE FOURTH AMENDMENT ON ITS HEAD" FROM A HISTORICAL STANDPOINT.  T.
TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 23-24 (1969). 
THIS ISSUE IS PERHAPS MOST CLEARLY PRESENTED IN THE CASE OF A
WARRANTLESS ENTRY INTO A MAN'S HOME TO ARREST HIM ON PROBABLE CAUSE. 
THE VALIDITY OF SUCH ENTRY WAS LEFT OPEN IN JONES V. UNITED STATES, 357
U.S. 493, 499-500 (1958), AND ALTHOUGH MY BROTHERS WHITE AND STEWART
BOTH FEEL THAT THEIR CONTRARY ASSUMPTIONS ON THIS POINT ARE AT THE ROOT
OF THEIR DISAGREEMENT IN THIS CASE, ANTE, AT 477-479; POST, AT 510-512,
521, THE COURT AGAIN LEAVES THE ISSUE OPEN.  ANTE, AT 481.  IN MY
OPINION IT DOES WELL TO DO SO.  THIS MATTER SHOULD NOT BE DECIDED IN A
STATE CASE NOT SQUARELY PRESENTING THE ISSUE AND WHERE IT WAS NOT FULLY
BRIEFED AND ARGUED.  I INTIMATE NO VIEW ON THIS SUBJECT, BUT UNTIL IT
IS RIPE FOR DECISION, I HOPE IN A FEDERAL CASE, I AM UNWILLING TO LEND
MY SUPPORT TO SETTING BACK THE TREND OF OUR RECENT DECISIONS. 

/1/  BECAUSE OF MY VIEWS AS TO THE RETROACTIVITY OF CHIMEL V.
CALIFORNIA, 395 U.S. 752 (1969), I DO NOT BELIEVE THE SEIZURE OF THE
PONTIAC CAN BE UPHELD AS INCIDENT TO COOLIDGE'S ARREST.  SEE MY
SEPARATE OPINION IN MACKEY V. UNITED STATES, 401 U.S. 667, 675 (1971). 

MR. JUSTICE BURGER, DISSENTING IN PART AND CONCURRING IN PART. 

I JOIN THE DISSENTING OPINION OF MR. JUSTICE WHITE AND IN PARTS II
AND III OF MR. JUSTICE BLACK'S CONCURRING AND DISSENTING OPINION.  I
ALSO AGREE WITH MOST OF WHAT IS SAID IN PART I OF MR. JUSTICE BLACK'S
OPINION, BUT I AM NOT PREPARED TO ACCEPT THE PROPOSITION THAT THE FIFTH
AMENDMENT REQUIRES THE EXCLUSION OF EVIDENCE SEIZED IN VIOLATION OF THE
FOURTH AMENDMENT.  I JOIN IN PART III OF MR. JUSTICE STEWART'S
OPINION. 

THIS CASE ILLUSTRATES GRAPHICALLY THE MONSTROUS PRICE WE PAY FOR THE
EXCLUSIONARY RULE IN WHICH WE SEEM TO HAVE IMPRISONED OURSELVES.  SEE
MY DISSENT IN BIVENS V. SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF
NARCOTICS, ANTE, P. 411. 

ON THE MERITS OF THE CASE I FIND NOT THE SLIGHTEST BASIS IN THE
RECORD TO REVERSE THIS CONVICTION.  HERE AGAIN THE COURT REACHES OUT,
STRAINS, AND DISTORTS RULES THAT WERE SHOWING SOME SIGNS OF
STABILIZING, AND DIRECTS A NEW TRIAL WHICH WILL BE HELD MORE THAN SEVEN
YEARS AFTER THE CRIMINAL ACTS CHARGED. 

MR. JUSTICE STONE, OF THE MINNESOTA SUPREME COURT, CALLED THE KIND
OF JUDICIAL FUNCTIONING IN WHICH THE COURT INDULGES TODAY "BIFURCATING
ELEMENTS TOO INFINITESIMAL TO BE SPLIT." 

MR. JUSTICE BLACK, CONCURRING AND DISSENTING. 

AFTER A JURY TRIAL IN A NEW HAMPSHIRE STATE COURT, PETITIONER WAS
CONVICTED OF MURDER AND SENTENCED TO LIFE IMPRISONMENT.  HOLDING THAT
CERTAIN EVIDENCE INTRODUCED BY THE STATE WAS SEIZED DURING AN
"UNREASONABLE" SEARCH AND THAT THE EVIDENCE WAS INADMISSIBLE UNDER THE
JUDICIALLY CREATED EXCLUSIONARY RULE OF THE FOURTH AMENDMENT, THE
MAJORITY REVERSES THAT CONVICTION.  BELIEVING THAT THE SEARCH AND
SEIZURE HERE WAS REASONABLE AND THAT THE FOURTH AMENDMENT PROPERLY
CONSTRUED CONTAINS NO SUCH EXCLUSIONARY RULE, I DISSENT. 

THE RELEVANT FACTS ARE THESE.  PAMELA MASON, A 14-YEAR-OLD SCHOOL
GIRL, LIVED WITH HER MOTHER AND YOUNGER BROTHER IN MANCHESTER, NEW
HAMPSHIRE.  SHE OCCASIONALLY WORKED AFTER SCHOOL AS A BABYSITTER AND
SOUGHT SUCH WORK BY POSTING A NOTICE ON A BULLETIN BOARD IN A LOCAL
LAUNDROMAT.  ON JANUARY 13, 1964, SHE ARRIVED HOME FROM SCHOOL ABOUT
4:15 P.M.  PAMELA'S MOTHER TOLD HER THAT A MAN HAD CALLED SEEKING A
BABYSITTER FOR THAT EVENING AND SAID THAT HE WOULD CALL AGAIN LATER. 
ABOUT 4:30 P.M., AFTER PAMELA'S MOTHER HAD LEFT FOR HER JOB AS A
WAITRESS AT A NEARBY RESTAURANT, PAMELA RECEIVED A PHONE CALL.  HER
YOUNGER BROTHER, WHO ANSWERED THE CALL BUT DID NOT OVERHEAR THE
CONVERSATION, LATER REPORTED THAT THE CALLER WAS A MAN.  AFTER THE
CALL, PAMELA PREPARED DINNER FOR HER BROTHER AND HERSELF, THEN LEFT THE
HOUSE ABOUT 6 P.M.  HER FAMILY NEVER AGAIN SAW HER ALIVE.  EIGHT DAYS
LATER, ON JANUARY 21, 1964, PAMELA'S FROZEN BODY WAS DISCOVERED IN A
SNOWDRIFT BESIDE AN INTERSTATE HIGHWAY A FEW MILES FROM HER HOME.  HER
THROAT HAD BEEN SLASHED AND SHE HAD BEEN SHOT IN THE HEAD.  MEDICAL
EVIDENCE SHOWED THAT SHE DIED SOME TIME BETWEEN 8 AND 10 P.M. ON
JANUARY 13, THE NIGHT SHE LEFT HOME. 

A MANHUNT ENSUED.  TWO WITNESSES INFORMED THE POLICE THAT ABOUT 9:30
P.M. ON THE NIGHT OF THE MURDER THEY HAD STOPPED TO OFFER ASSISTANCE TO
A MAN IN A 1951 PONTIAC AUTOMOBILE WHICH WAS PARKED BESIDE THE
INTERSTATE HIGHWAY NEAR THE POINT WHERE THE LITTLE GIRL'S DEAD BODY WAS
LATER FOUND.  PETITIONER CAME UNDER SUSPICION SEVEN DAYS AFTER THE BODY
WAS DISCOVERED WHEN ONE OF HIS NEIGHBORS REPORTED TO THE POLICE THAT
PETITIONER HAD BEEN ABSENT FROM HIS HOME BETWEEN 5 AND 11 P.M. ON
JANUARY 13, THE NIGHT OF THE MURDER.  PETITIONER OWNED A 1951 PONTIAC
AUTOMOBILE THAT MATCHED THE DESCRIPTION OF THE CAR WHICH THE TWO
WITNESSES REPORTED SEEING PARKED WHERE THE GIRL'S BODY HAD BEEN FOUND. 
THE POLICE FIRST TALKED WITH PETITIONER AT HIS HOME ON THE EVENING OF
JANUARY 28, FIFTEEN DAYS AFTER THE GIRL WAS KILLED, AND ARRANGED FOR
HIM TO COME TO THE POLICE STATION THE FOLLOWING SUNDAY, FEBRUARY 2,
1964.  HE WENT TO THE STATION THAT SUNDAY AND ANSWERED QUESTIONS
CONCERNING HIS ACTIVITIES ON THE NIGHT OF THE MURDER, TELLING THE
POLICE THAT HE HAD BEEN SHOPPING IN A NEIGHBORING TOWN AT THE TIME THE
MURDER WAS COMMITTED.  DURING QUESTIONING, PETITIONER CONFESSED TO
HAVING COMMITTED AN UNRELATED LARCENY FROM HIS EMPLOYER AND WAS HELD
OVERNIGHT AT THE POLICE STATION IN CONNECTION WITH THAT OFFENSE.  ON
THE NEXT DAY, HE WAS PERMITTED TO GO HOME. 

WHILE PETITIONER WAS BEING QUESTIONED AT THE POLICE STATION ON
FEBRUARY 2, TWO POLICEMEN WENT TO PETITIONER'S HOME TO TALK WITH HIS
WIFE.  THEY ASKED WHAT FIREARMS THE PETITIONER OWNED AND HIS WIFE
PRODUCED TWO SHOTGUNS AND TWO RIFLES WHICH SHE VOLUNTARILY OFFERED TO
THE POLICE.  UPON EXAMINATION THE UNIVERSITY OF RHODE ISLAND CRIMINAL
INVESTIGATION LABORATORY CONCLUDED THAT ONE OF THE FIREARMS, A MOSSBERG
.22-CALIBER RIFLE, HAD FIRED THE BULLET FOUND IN THE MURDERED GIRL'S
BRAIN. 

PETITIONER ADMITTED THAT HE WAS A FREQUENT VISITOR TO THE LAUNDROMAT
WHERE PAMELA POSTED HER BABYSITTING NOTICE AND THAT HE HAD BEEN THERE
ON THE NIGHT OF THE MURDER.  THE FOLLOWING DAY A KNIFE BELONGING TO
PETITIONER, WHICH COULD HAVE INFLICTED THE MURDERED GIRL'S KNIFE
WOUNDS, WAS FOUND NEAR THAT LAUNDROMAT.  THE POLICE ALSO LEARNED THAT
PETITIONER HAD UNSUCCESSFULLY CONTACTED FOUR DIFFERENT PERSONS BEFORE
THE GIRL'S BODY HAD BEEN DISCOVERED IN AN ATTEMPT TO FABRICATE AN ALIBI
FOR THE NIGHT OF JANUARY 13. 

ON FEBRUARY 19, 1964, ALL THIS EVIDENCE WAS PRESENTED TO THE STATE
ATTORNEY GENERAL WHO WAS AUTHORIZED UNDER NEW HAMPSHIRE LAW TO ISSUE
ARREST AND SEARCH WARRANTS.  THE ATTORNEY GENERAL CONSIDERED THE
EVIDENCE AND ISSUED A WARRANT FOR PETITIONER'S ARREST AND FOUR SEARCH
WARRANTS INCLUDING A WARRANT FOR THE SEIZURE AND SEARCH OF PETITIONER'S
PONTIAC AUTOMOBILE. 

ON THE DAY THE WARRANTS ISSUED, THE POLICE WENT TO THE PETITIONER'S
RESIDENCE AND PLACED HIM UNDER ARREST.  THEY TOOK CHARGE OF HIS 1951
PONTIAC WHICH WAS PARKED IN PLAIN VIEW IN THE DRIVEWAY IN FRONT OF THE
HOUSE, AND, TWO HOURS LATER, TOWED THE CAR TO THE POLICE STATION. 
DURING THE SEARCH OF THE AUTOMOBILE AT THE STATION, THE POLICE OBTAINED
VACUUM SWEEPINGS OF DIRT AND OTHER FINE PARTICLES WHICH MATCHED LIKE
SWEEPINGS TAKEN FROM THE CLOTHES OF THE MURDERED GIRL.  BASED ON THE
SIMILARITY BETWEEN THE SWEEPINGS TAKEN FROM PETITIONER'S AUTOMOBILE AND
THOSE TAKEN FROM THE GIRL'S CLOTHES, EXPERTS WHO TESTIFIED AT TRIAL
CONCLUDED THAT PAMELA HAD BEEN IN THE PETITIONER'S CAR.  THE RIFLE
GIVEN TO THE POLICE BY PETITIONER'S WIFE WAS ALSO RECEIVED IN
EVIDENCE. 

PETITIONER CHALLENGES HIS CONVICTION ON THE GROUND THAT THE RIFLE
OBTAINED FROM HIS WIFE AND THE VACUUM SWEEPINGS TAKEN FROM HIS CAR WERE
SEIZED IN VIOLATION OF THE FOURTH AMENDMENT AND WERE IMPROPERLY
ADMITTED AT TRIAL.  WITH RESPECT TO THE RIFLE VOLUNTARILY GIVEN TO THE
POLICE BY PETITIONER'S WIFE, THE MAJORITY HOLDS THAT IT WAS PROPERLY
RECEIVED IN EVIDENCE.  I AGREE.  BUT THE COURT REVERSES PETITIONER'S
CONVICTION ON THE GROUND THAT THE SWEEPINGS TAKEN FROM HIS CAR WERE
SEIZED DURING AN ILLEGAL SEARCH AND FOR THIS REASON THE ADMISSION OF
THE SWEEPINGS INTO EVIDENCE VIOLATED THE FOURTH AMENDMENT.  I DISSENT. 

        I 

THE FOURTH AMENDMENT PROHIBITS UNREASONABLE SEARCHES AND SEIZURES. 
THE AMENDMENT SAYS NOTHING ABOUT CONSEQUENCES.  IT CERTAINLY NOWHERE
PROVIDES FOR THE EXCLUSION OF EVIDENCE AS THE REMEDY FOR VIOLATION. 
THE AMENDMENT STATES:  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR
PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON
PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED."  NO EXAMINATION OF THAT TEXT CAN FIND AN EXCLUSIONARY RULE BY
A MERE PROCESS OF CONSTRUCTION.  APPARENTLY THE FIRST SUGGESTION THAT
THE FOURTH AMENDMENT SOMEHOW EMBODIED A RULE OF EVIDENCE CAME IN
JUSTICE BRADLEY'S MAJORITY OPINION IN BOYD V. UNITED STATES, 116 U.S.
616 (1886).  THE HOLDING IN THAT CASE WAS THAT ORDINARILY A PERSON MAY
NOT BE COMPELLED TO PRODUCE HIS PRIVATE BOOKS AND PAPERS FOR USE
AGAINST HIM AS PROOF OF CRIME.  THAT DECISION WAS A SOUND APPLICATION
OF ACCEPTED PRINCIPLES OF COMMON LAW AND THE COMMAND OF THE FIFTH
AMENDMENT THAT NO PERSON SHALL BE COMPELLED TO BE A WITNESS AGAINST
HIMSELF.  BUT JUSTICE BRADLEY APPARENTLY PREFERRED TO FORMULATE A NEW
EXCLUSIONARY RULE FROM THE FOURTH AMENDMENT RATHER THAN RELY ON THE
ALREADY EXISTING EXCLUSIONARY RULE CONTAINED IN THE LANGUAGE OF THE
FIFTH AMENDMENT.  HIS OPINION INDICATED THAT COMPULSORY PRODUCTION OF
SUCH EVIDENCE AT TRIAL VIOLATED THE FOURTH AMENDMENT.  MR. JUSTICE
MILLER, WITH WHOM CHIEF JUSTICE WAITE JOINED, CONCURRED SOLELY ON THE
BASIS OF THE FIFTH AMENDMENT, AND EXPLICITLY REFUSED TO GO ALONG WITH
JUSTICE BRADLEY'S NOVEL READING OF THE FOURTH AMENDMENT.  IT WAS NOT
UNTIL 1914, SOME 28 YEARS AFTER BOYD AND WHEN NO MEMBER OF THE BOYD
COURT REMAINED, THAT THE COURT IN WEEKS V. UNITED STATES, 232 U.S. 383,
STATED THAT THE FOURTH AMENDMENT ITSELF BARRED THE ADMISSION OF
EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT.  THE WEEKS
OPINION MADE NO EXPRESS CONFESSION OF A BREAK WITH THE PAST.  BUT IF IT
WAS MERELY A PROPER READING OF THE FOURTH AMENDMENT, IT SEEMS STRANGE
THAT IT TOOK THIS COURT NEARLY 125 YEARS TO DISCOVER THE TRUE MEANING
OF THOSE WORDS.  THE TRUTH IS THAT THE SOURCE OF THE EXCLUSIONARY RULE
SIMPLY CANNOT BE FOUND IN THE FOURTH AMENDMENT.  THAT AMENDMENT DID NOT
WHEN ADOPTED, AND DOES NOT NOW, CONTAIN ANY CONSTITUTIONAL RULE BARRING
THE ADMISSION OF ILLEGALLY SEIZED EVIDENCE. 

IN STRIKING CONTRAST TO THE FOURTH AMENDMENT, THE FIFTH AMENDMENT
STATES IN EXPRESS, UNAMBIGUOUS TERMS THAT NO PERSON "SHALL BE COMPELLED
IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  THE FIFTH
AMENDMENT IN AND OF ITSELF DIRECTLY AND EXPLICITLY COMMANDS ITS OWN
EXCLUSIONARY RULE-- A DEFENDANT CANNOT BE COMPELLED TO GIVE EVIDENCE
AGAINST HIMSELF.  ABSENT CONGRESSIONAL ACTION TAKEN PURSUANT TO THE
FOURTH AMENDMENT, IF EVIDENCE IS TO BE EXCLUDED, IT MUST BE UNDER THE
FIFTH AMENDMENT, NOT THE FOURTH.  THAT WAS THE POINT SO ABLY MADE IN
THE CONCURRING OPINION OF JUSTICE MILLER, JOINED BY CHIEF JUSTICE
WAITE, IN BOYD V. UNITED STATES, SUPRA, AND THAT WAS THE THRUST OF MY
CONCURRING OPINION IN MAPP V. OHIO, 367 U.S. 643, 661 (1961). 

THE EVIDENCE SEIZED BY BREAKING INTO MRS. MAPP'S HOUSE AND THE
SEARCH OF ALL HER POSSESSIONS, WAS EXCLUDED FROM EVIDENCE, NOT BY THE
FOURTH AMENDMENT WHICH CONTAINS NO EXCLUSIONARY RULE, BUT BY THE FIFTH
AMENDMENT WHICH DOES.  THE INTRODUCTION OF SUCH EVIDENCE COMPELS A MAN
TO BE A WITNESS AGAINST HIMSELF, AND EVIDENCE SO COMPELLED MUST BE
EXCLUDED UNDER THE FIFTH AMENDMENT, NOT BECAUSE THE COURT SAYS SO, BUT
BECAUSE THE FIFTH AMENDMENT COMMANDS IT. 

THE FOURTH AMENDMENT PROVIDES A CONSTITUTIONAL MEANS BY WHICH THE
GOVERNMENT CAN ACT TO OBTAIN EVIDENCE TO BE USED IN CRIMINAL
PROSECUTIONS.  THE PEOPLE ARE OBLIGED TO YIELD TO A PROPER EXERCISE OF
AUTHORITY UNDER THAT AMENDMENT.  /1/  EVIDENCE PROPERLY SEIZED UNDER
THE FOURTH AMENDMENT, OF COURSE, IS ADMISSIBLE AT TRIAL.  BUT NOTHING
IN THE FOURTH AMENDMENT PROVIDES THAT EVIDENCE SEIZED IN VIOLATION OF
THAT AMENDMENT MUST BE EXCLUDED. 

THE MAJORITY HOLDS THAT EVIDENCE IT VIEWS AS IMPROPERLY SEIZED IN
VIOLATION OF ITS EVER CHANGING CONCEPT OF THE FOURTH AMENDMENT IS
INADMISSIBLE.  THE MAJORITY TREATS THE EXCLUSIONARY RULE AS A JUDGE
MADE RULE OF EVIDENCE AND UTILIZED TO ENFORCE THE MAJORITY'S OWN
NOTIONS OF PROPER POLICE CONDUCT.  THE COURT TODAY ANNOUNCES ITS NEW
RULES OF POLICE PROCEDURE IN THE NAME OF THE FOURTH AMENDMENT, THEN
HOLDS THAT EVIDENCE SEIZED IN VIOLATION OF THE NEW "GUIDELINES" IS
AUTOMATICALLY INADMISSIBLE AT TRIAL.  THE MAJORITY DOES NOT PURPORT TO
RELY ON THE FIFTH AMENDMENT TO EXCLUDE THE EVIDENCE IN THIS CASE. 
INDEED, IT COULD NOT.  THE MAJORITY PREFERS INSTEAD TO RELY ON
"CHANGING TIMES" AND THE COURT'S ROLE AS IT SEES IT, AS THE
ADMINISTRATOR IN CHARGE OF REGULATING THE CONTACTS OF OFFICIALS WITH
CITIZENS.  THE MAJORITY STATES THAT IN THE ABSENCE OF A BETTER MEANS OF
REGULATION, IT APPLIES A COURT-CREATED RULE OF EVIDENCE. 

I READILY CONCEDE THAT THERE IS MUCH RECENT PRECEDENT FOR THE
MAJORITY'S PRESENT ANNOUNCEMENT OF YET ANOTHER NEW SET OF POLICE
OPERATING PROCEDURES.  BY INVOKING THIS RULEMAKING POWER FOUND NOT IN
THE WORDS BUT SOMEWHERE IN THE "SPIRIT" OF THE FOURTH AMENDMENT, THE
COURT HAS EXPANDED THAT AMENDMENT BEYOND RECOGNITION.  AND EACH NEW
STEP IS JUSTIFIED AS MERELY A LOGICAL EXTENSION OF THE STEP BEFORE. 

IT IS DIFFICULT FOR ME TO BELIEVE THE FRAMERS OF THE BILL OF RIGHTS
INTENDED THAT THE POLICE BE REQUIRED TO PROVE A DEFENDANT'S GUILT IN A
"LITTLE TRIAL" BEFORE THE ISSUANCE OF A SEARCH WARRANT.  BUT SEE
AGUILAR V. TEXAS, 378 U.S. 108 (1964); SPINELLI V. UNITED STATES, 393
U.S. 410 (1969).  NO SUCH PROCEEDING WAS REQUIRED BEFORE OR AFTER THE
ADOPTION OF THE FOURTH AMENDMENT, UNTIL THIS COURT DECIDED AGUILAR AND
SPINELLI.  LIKEWISE, EAVESDROPPERS WERE DEEMED TO BE COMPETENT
WITNESSES IN BOTH ENGLISH AND AMERICAN COURTS UP UNTIL THIS COURT IN
ITS FOURTH AMENDMENT "RULEMAKING" CAPACITY UNDERTOOK TO LAY DOWN RULES
FOR ELECTRONIC SURVEILLANCE.  BERGER V. NEW YORK, 388 U.S. 41, 70
(1967) (BLACK, J., DISSENTING); KATZ V. UNITED STATES, 389 U.S. 347,
364 (1967) (BLACK, J., DISSENTING).  THE REASONABLENESS OF A SEARCH
INCIDENT TO AN ARREST, EXTENDING TO AREAS UNDER THE CONTROL OF THE
DEFENDANT AND AREAS WHERE EVIDENCE MAY BE FOUND, WAS AN ESTABLISHED
TENET OF ENGLISH COMMON LAW, AND AMERICAN CONSTITUTIONAL LAW AFTER
ADOPTION OF THE FOURTH AMENDMENT-- THAT IS, UNTIL CHIMEL V. CALIFORNIA,
395 U.S. 752 (1969).  THE BROAD, ABSTRACT, AND AMBIGUOUS CONCEPT OF
"PRIVACY" IS NOW UNJUSTIFIABLY URGED AS A COMPREHENSIVE SUBSTITUTE FOR
THE FOURTH AMENDMENT'S GUARANTEE AGAINST "UNREASONABLE SEARCHES AND
SEIZURES."  GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965). 

OUR GOVERNMENT IS FOUNDED UPON A WRITTEN CONSTITUTION.  THE
DRAFTSMEN EXPRESSED THEMSELVES IN CAREFUL AND MEASURED TERMS
CORRESPONDING WITH THE IMMENSE IMPORTANCE OF THE POWERS DELEGATED TO
THEM.  THE FRAMERS OF THE CONSTITUTION AND THE PEOPLE WHO ADOPTED IT,
MUST BE UNDERSTOOD TO HAVE USED WORDS IN THEIR NATURAL MEANING, AND TO
HAVE INTENDED WHAT THEY SAID.  THE CONSTITUTION ITSELF CONTAINS THE
STANDARDS BY WHICH THE SEIZURE OF EVIDENCE CHALLENGED IN THE PRESENT
CASE AND THE ADMISSIBILITY OF THAT EVIDENCE AT TRIAL IS TO BE MEASURED
IN THE ABSENCE OF CONGRESSIONAL LEGISLATION.  IT IS MY CONCLUSION THAT
BOTH THE SEIZURE OF THE RIFLE OFFERED BY PETITIONER'S WIFE AND THE
SEIZURE OF THE AUTOMOBILE AT THE TIME OF PETITIONER'S ARREST WERE
CONSISTENT WITH THE FOURTH AMENDMENT AND THAT THE EVIDENCE SO OBTAINED
UNDER THE CIRCUMSTANCES SHOWN IN THE RECORD IN THIS CASE COULD NOT BE
EXCLUDED UNDER THE FIFTH AMENDMENT. 

        II 

THE MAJORITY HOLDS THAT THE WARRANT AUTHORIZING THE SEIZURE AND
SEARCH OF PETITIONER'S AUTOMOBILE WAS CONSTITUTIONALLY DEFECTIVE AND
VOID.  WITH RESPECT TO SEARCH WARRANTS, THE FOURTH AMENDMENT PROVIDES
THAT "NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY
OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE
SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

THE MAJORITY CONCEDES THAT THE POLICE DID SHOW PROBABLE CAUSE FOR
THE ISSUANCE OF THE WARRANT.  THE MAJORITY DOES NOT CONTEST THAT THE
WARRANT PARTICULARLY DESCRIBED THE PLACE TO BE SEARCHED, AND THE THING
TO BE SEIZED. 

BUT COMPLIANCE WITH STATE LAW AND THE REQUIREMENTS OF THE FOURTH
AMENDMENT APPARENTLY IS NOT ENOUGH.  THE MAJORITY HOLDS THAT THE STATE
ATTORNEY GENERAL'S CONNECTION WITH THE INVESTIGATION AUTOMATICALLY
RENDERED THE SEARCH WARRANT INVALID.  IN THE FIRST PLACE, THERE IS NO
LANGUAGE IN THE FOURTH AMENDMENT WHICH PROVIDES ANY BASIS FOR THE
DISQUALIFICATION OF THE STATE ATTORNEY GENERAL TO ACT AS A MAGISTRATE. 
HE IS A STATE OFFICIAL OF HIGH OFFICE.  THE FOURTH AMENDMENT DOES NOT
INDICATE THAT HIS POSITION OF AUTHORITY OVER STATE LAW ENFORCEMENT
RENDERS HIM INELIGIBLE TO ISSUE WARRANTS UPON A SHOWING OF PROBABLE
CAUSE SUPPORTED BY OATH OR AFFIRMATION.  THE MAJORITY'S ARGUMENT
PROCEEDS ON THE "LITTLE TRIAL" THEORY THAT THE MAGISTRATE IS TO SIT AS
A JUDGE AND WEIGH THE EVIDENCE AND PRACTICALLY DETERMINE GUILT OR
INNOCENCE BEFORE ISSUING A WARRANT.  THERE IS NOTHING IN THE FOURTH
AMENDMENT TO SUPPORT SUCH A MAGNIFIED VIEW OF THE MAGISTRATE'S
AUTHORITY.  THE STATE ATTORNEY GENERAL WAS NOT BARRED BY THE FOURTH
AMENDMENT OR ANY OTHER CONSTITUTIONAL PROVISION FROM ISSUING THE
WARRANT. 

IN THE SECOND PLACE, THE NEW HAMPSHIRE SUPREME COURT HELD IN EFFECT
THAT THE STATE ATTORNEY GENERAL'S PARTICIPATION IN THE INVESTIGATION OF
THE CASE AT THE TIME HE ISSUED THE SEARCH WARRANT WAS "HARMLESS ERROR"
IF IT WAS ERROR AT ALL.  I AGREE.  IT IS DIFFICULT TO IMAGINE A CLEARER
SHOWING OF PROBABLE CAUSE.  THERE WAS NO POSSIBILITY OF PREJUDICE
BECAUSE THERE WAS NO ROOM FOR DISCRETION.  INDEED, IT COULD BE SAID
THAT A REFUSAL TO ISSUE A WARRANT ON THE SHOWING OF PROBABLE CAUSE MADE
IN THIS CASE WOULD HAVE BEEN AN ABUSE OF DISCRETION.  IN LIGHT OF THE
SHOWING MADE BY THE POLICE, THERE IS NO REASONABLE POSSIBILITY THAT THE
STATE ATTORNEY GENERAL'S OWN KNOWLEDGE OF THE INVESTIGATION CONTRIBUTED
TO THE ISSUANCE OF THE WARRANT.  I SEE NO ERROR IN THE STATE ATTORNEY
GENERAL'S ACTION.  BUT EVEN IF THERE WAS ERROR, IT WAS HARMLESS BEYOND
REASONABLE DOUBT.  SEE HARRINGTON V. CALIFORNIA, 395 U.S. 250 (1969);
CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1967). 

THEREFORE, IT IS MY CONCLUSION THAT THE WARRANT AUTHORIZING THE
SEIZURE AND SEARCH OF PETITIONER'S AUTOMOBILE WAS CONSTITUTIONAL UNDER
THE FOURTH AMENDMENT, AND THAT THE EVIDENCE OBTAINED DURING THAT SEARCH
CANNOT BE EXCLUDED UNDER THE FIFTH AMENDMENT.  MOREOVER, I AM OF THE
VIEW THAT, EVEN IF THE SEARCH WARRANT HAD NOT ISSUED, THE SEARCH IN
THIS CASE NONETHELESS WOULD HAVE BEEN CONSTITUTIONAL UNDER ALL THREE OF
THE PRINCIPLES CONSIDERED AND REJECTED BY THE MAJORITY. 

      III 

IT IS IMPORTANT TO POINT OUT THAT THE AUTOMOBILE ITSELF WAS EVIDENCE
AND WAS SEIZED AS SUCH.  PRIOR TO THE SEIZURE THE POLICE HAD BEEN
INFORMED BY TWO WITNESSES THAT ON THE NIGHT OF THE MURDER THEY HAD SEEN
AN AUTOMOBILE PARKED NEAR THE POINT WHERE THE LITTLE GIRL'S DEAD BODY
WAS LATER DISCOVERED.  THEIR DESCRIPTION OF THE PARKED AUTOMOBILE
MATCHED PETITIONER'S CAR.  AT THE TIME OF THE SEIZURE THE
IDENTIFICATION OF PETITIONER'S AUTOMOBILE BY THE WITNESSES AS THE CAR
THEY HAD SEEN ON THE NIGHT OF THE MURDER WAS YET TO BE MADE.  THE
POLICE HAD GOOD REASON TO BELIEVE THAT THE IDENTIFICATION WOULD BE AN
IMPORTANT ELEMENT OF THE CASE AGAINST THE PETITIONER.  PRESERVATION OF
THE AUTOMOBILE ITSELF AS EVIDENCE WAS A REASONABLE MOTIVATION FOR ITS
SEIZURE.  CONSIDERED IN LIGHT OF THE INFORMATION IN THE HANDS OF THE
NEW HAMPSHIRE POLICE AT THE TIME OF THE SEIZURE, I CONCLUDE THAT THE
SEIZURE AND SEARCH WERE CONSTITUTIONAL, EVEN HAD THERE BEEN NO SEARCH
WARRANT, FOR THE FOLLOWING AMONG OTHER REASONS. 

        A 

FIRST, THE SEIZURE OF PETITIONER'S AUTOMOBILE WAS VALID AS INCIDENT
TO A LAWFUL ARREST.  THE MAJORITY CONCEDES THAT THERE WAS PROBABLE
CAUSE FOR PETITIONER'S ARREST.  UPON ARRIVING AT PETITIONER'S RESIDENCE
TO MAKE THAT ARREST, THE POLICE SAW PETITIONER'S AUTOMOBILE WHICH THEY
KNEW FITTED THE DESCRIPTION OF THE CAR OBSERVED BY TWO WITNESSES AT THE
PLACE WHERE THE MURDERED GIRL'S BODY HAD BEEN FOUND.  THE POLICE
ARRESTED THE PETITIONER AND SEIZED THE AUTOMOBILE.  THE MAJORITY HOLDS
THAT BECAUSE THE POLICE HAD TO GO INTO PETITIONER'S RESIDENCE IN ORDER
TO PLACE PETITIONER UNDER ARREST, THE CONTEMPORANEOUS SEIZURE OF THE
AUTOMOBILE OUTSIDE THE HOUSE WAS NOT INCIDENT TO THAT ARREST.  I CANNOT
ACCEPT THIS ELEVATION OF FORM OVER REASON. 

AFTER STATING THAT CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969), IS
INAPPLICABLE TO THIS CASE, THE MAJORITY GOES ON TO FORMULATE AND APPLY
A PER SE RULE REACHING FAR BEYOND CHIMEL.  TO DO SO, THE MAJORITY
EMPLOYS A CLASSIC NON SEQUITUR.  BECAUSE THIS COURT HAS HELD THAT
POLICE ARRESTING A DEFENDANT ON THE STREET IN FRONT OF HIS HOUSE CANNOT
GO INTO THAT HOUSE AND MAKE A GENERAL SEARCH, IT FOLLOWS, SAYS THE
MAJORITY, THAT THE POLICE HAVING ENTERED A HOUSE TO MAKE AN ARREST
CANNOT STEP OUTSIDE THE HOUSE TO SEIZE CLEARLY VISIBLE EVIDENCE.  EVEN
THOUGH THE POLICE, UPON ENTERING A DOORWAY TO MAKE A VALID ARREST,
WOULD BE AUTHORIZED UNDER THE PRE-CHIMEL LAW THE MAJORITY PURPORTS TO
APPLY, TO MAKE A FIVE-HOUR SEARCH OF A FOUR-ROOM APARTMENT, SEE HARRIS
V. UNITED STATES, 331 U.S. 145 (1947), THE MAJORITY HOLDS THAT THE
POLICE COULD NOT STEP OUTSIDE THE DOORWAY TO SEIZE EVIDENCE THEY PASSED
ON THEIR WAY IN.  THE MAJORITY REASONS THAT AS THE DOORWAY LOCKS THE
POLICEMAN OUT, ONCE ENTERED, IT MUST LOCK HIM IN. 

THE TEST OF REASONABLENESS CANNOT BE GOVERNED BY SUCH ARBITRARY
RULES.  EACH CASE MUST BE JUDGED ON ITS OWN PARTICULAR FACTS.  HERE,
THERE WAS NO GENERAL EXPLORATION, ONLY A DIRECT SEIZURE OF IMPORTANT
EVIDENCE IN PLAIN VIEW FROM BOTH INSIDE AS WELL AS OUTSIDE THE HOUSE. 
ON THE FACTS OF THIS CASE, IT IS MY OPINION THAT THE SEIZURE OF
PETITIONER'S AUTOMOBILE WAS INCIDENT TO HIS ARREST AND WAS REASONABLE
UNDER THE TERMS OF THE FOURTH AMENDMENT. 

        B 

MOREOVER, UNDER OUR DECISION LAST TERM IN CHAMBERS V. MARONEY, 399
U.S. 42 (1970), THE POLICE WERE ENTITLED NOT ONLY TO SEIZE PETITIONER'S
CAR BUT ALSO TO SEARCH THE CAR AFTER IT HAD BEEN TAKEN TO THE POLICE
STATION.  THE POLICE HAD PROBABLE CAUSE TO BELIEVE THAT THE CAR HAD
BEEN USED IN THE COMMISSION OF THE MURDER AND THAT IT CONTAINED
EVIDENCE OF THE CRIME.  UNDER CARROLL V. UNITED STATES, 267 U.S. 132
(1925), AND CHAMBERS V. MARONEY, SUPRA, SUCH BELIEF WAS SUFFICIENT
JUSTIFICATION FOR THE SEIZURE AND THE SEARCH OF PETITIONER'S
AUTOMOBILE.     THE MAJORITY REASONS THAT THE CHAMBERS AND CARROLL
RATIONALE, BASED ON THE MOBILITY OF AUTOMOBILES, IS INAPPLICABLE HERE
BECAUSE THE PETITIONER'S CAR COULD HAVE BEEN PLACED UNDER GUARD AND,
THEREBY, RENDERED IMMOBILE.  BUT THIS COURT EXPLICITLY REJECTED SUCH
REASONING IN CHAMBERS:  "FOR CONSTITUTIONAL PURPOSES, WE SEE NO
DIFFERENCE BETWEEN ON THE ONE HAND SEIZING AND HOLDING A CAR BEFORE
PRESENTING THE PROBABLE CAUSE ISSUE TO A MAGISTRATE AND ON THE OTHER
HAND CARRYING OUT AN IMMEDIATE SEARCH WITHOUT A WARRANT.  . . . THE
PROBABLE-CAUSE FACTOR STILL OBTAINED AT THE STATION HOUSE AND SO DID
THE MOBILITY OF THE CAR . . . " 399 U.S.,AT 52.  THIS COURT HELD THAT
THE DELAYED SEARCH AT THE STATION HOUSE, AS WELL AS AN IMMEDIATE SEARCH
AT THE TIME OF SEIZURE, WAS REASONABLE UNDER THE FOURTH AMENDMENT. 

AS A SECOND ARGUMENT FOR HOLDING THAT THE CHAMBERS DECISION DOES NOT
APPLY TO THIS CASE, THE MAJORITY REASONS THAT THE EVIDENCE COULD NOT
HAVE BEEN ALTERED OR THE CAR MOVED BECAUSE PETITIONER WAS IN CUSTODY
AND HIS WIFE WAS ACCOMPANIED BY POLICE, AT LEAST UNTIL THE POLICE TOWED
THE CAR TO THE STATION.  BUT THE MAJORITY'S REASONING DEPENDS ON TWO
ASSUMPTIONS:  FIRST, THAT THE POLICE SHOULD, OR EVEN COULD, CONTINUE TO
KEEP PETITIONER'S WIFE EFFECTIVELY UNDER HOUSE ARREST; AND, SECOND,
THAT NO ONE ELSE HAD ANY MOTIVATION TO ALTER OR REMOVE THE CAR.  I
CANNOT ACCEPT THE FIRST ASSUMPTION, NOR DO I BELIEVE THAT THE POLICE
ACTED UNREASONABLY IN REFUSING TO ACCEPT THE SECOND.  /2/

        C 

I BELIEVE THE SEIZURE OF PETITIONER'S AUTOMOBILE WAS VALID UNDER THE
WELL-ESTABLISHED RIGHT OF THE POLICE TO SEIZE EVIDENCE IN PLAIN VIEW AT
THE TIME AND PLACE OF ARREST.  THE MAJORITY CONCEDES THAT THE POLICE
WERE RIGHTFULLY AT PETITIONER'S RESIDENCE TO MAKE A VALID ARREST AT THE
TIME OF THE SEIZURE.  TO USE THE MAJORITY'S WORDS, THE "INITIAL
INTRUSION" WHICH BROUGHT THE POLICE WITHIN PLAIN VIEW OF THE AUTOMOBILE
WAS LEGITIMATE.  THE MAJORITY ALSO CONCEDES THAT THE AUTOMOBILE WAS
"PLAINLY VISIBLE BOTH FROM THE STREET AND FROM INSIDE THE HOUSE WHERE
COOLIDGE WAS ACTUALLY ARRESTED," ANTE, AT 448, AND THAT THE AUTOMOBILE
ITSELF WAS EVIDENCE WHICH THE POLICE HAD PROBABLE CAUSE TO SEIZE. 
ANTE, AT 464.  INDEED, THE MAJORITY APPEARS TO CONCEDE THAT THE SEIZURE
OF PETITIONER'S AUTOMOBILE WAS VALID UNDER THE DOCTRINE UPHOLDING
SEIZURES OF EVIDENCE IN PLAIN VIEW AT THE SCENE OF ARREST, AT LEAST AS
IT STOOD BEFORE TODAY.  ANTE, AT 465-466, N. 24. 

HOWEVER, EVEN AFTER CONCEDING THAT PETITIONER'S AUTOMOBILE ITSELF
WAS EVIDENCE OF THE CRIME, THAT THE POLICE HAD PROBABLE CAUSE TO SEIZE
IT AS SUCH, AND THAT THE AUTOMOBILE WAS IN PLAIN VIEW AT THE TIME AND
PLACE OF ARREST, THE MAJORITY HOLDS THE SEIZURE TO BE A VIOLATION OF
THE FOURTH AMENDMENT BECAUSE THE DISCOVERY OF THE AUTOMOBILE WAS NOT
"INADVERTENT."  THE MAJORITY CONFIDENTLY STATES:  "WHAT THE 'PLAIN
VIEW' CASES HAVE IN COMMON IS THAT THE POLICE OFFICER IN EACH OF THEM
HAD A PRIOR JUSTIFICATION FOR AN INTRUSION IN THE COURSE OF WHICH HE
CAME INADVERTENTLY ACROSS A PIECE OF EVIDENCE INCRIMINATING THE
ACCUSED."  BUT THE PRIOR HOLDINGS OF THIS COURT NOT ONLY FAIL TO
SUPPORT THE MAJORITY'S STATEMENT, THEY FLATLY CONTRADICT IT.  ONE NEED
LOOK NO FURTHER THAN THE CASES CITED IN THE MAJORITY OPINION TO
DISCOVER THE INVALIDITY OF THAT ASSERTION. 

IN ONE OF THESE CASES, KER V. CALIFORNIA, 374 U.S. 23 (1963), THE
POLICE OBSERVED THE DEFENDANT'S PARTICIPATION IN AN ILLEGAL MARIHUANA
TRANSACTION, THEN WENT TO HIS APARTMENT TO ARREST HIM.  AFTER ENTERING
THE APARTMENT, THE POLICE SAW AND SEIZED A BLOCK OF MARIHUANA AS THEY
PLACED THE DEFENDANT UNDER ARREST.  THIS COURT UPHELD THAT SEIZURE ON
THE GROUND THAT THE POLICE WERE JUSTIFIABLY IN THE DEFENDANT'S
APARTMENT TO MAKE A VALID ARREST, THERE WAS NO SEARCH BECAUSE THE
EVIDENCE WAS IN PLAIN VIEW, AND THE SEIZURE OF SUCH EVIDENCE WAS
AUTHORIZED WHEN INCIDENT TO A LAWFUL ARREST.  THE DISCOVERY OF THE
MARIHUANA THERE COULD HARDLY BE DESCRIBED AS "INADVERTENT."  /3/ 

IN MARRON V. UNITED STATES, 275 U.S. 192 (1927), ALSO CITED BY THE
MAJORITY, THE COURT UPHELD THE SEIZURE OF BUSINESS RECORDS AS BEING
INCIDENT TO A VALID ARREST FOR OPERATING AN ILLEGAL RETAIL WHISKEY
ENTERPRISE.  I CANNOT SAY THAT THE SEIZURE OF BUSINESS RECORDS FROM A
PLACE OF BUSINESS DURING THE COURSE OF AN ARREST FOR OPERATING AN
ILLEGAL BUSINESS WAS "INADVERTENT."  /4/ 

THE MAJORITY CONFUSES THE HISTORICALLY JUSTIFIED RIGHT OF THE POLICE
TO SEIZE VISIBLE EVIDENCE OF THE CRIME IN OPEN VIEW AT THE SCENE OF
ARREST WITH THE "PLAIN VIEW" EXCEPTION TO THE REQUIREMENT OF PARTICULAR
DESCRIPTION IN SEARCH WARRANTS.  THE MAJORITY APPARENTLY REASONS THAT
UNLESS THE SEIZURE MADE PURSUANT TO AUTHORITY CONFERRED BY A WARRANT IS
LIMITED TO THE PARTICULARLY DESCRIBED OBJECT OF SEIZURE, THE WARRANT
WILL BECOME A GENERAL WRIT OF ASSISTANCE.  EVIDENTLY, AS A CHECK ON THE
REQUIREMENT OF PARTICULAR DESCRIPTION IN SEARCH WARRANTS, THE MAJORITY
ANNOUNCES A NEW RULE THAT ITEMS NOT NAMED IN A WARRANT CANNOT BE SEIZED
UNLESS THEIR DISCOVERY WAS UNANTICIPATED OR "INADVERTENT."  /5/  THE
MAJORITY'S CONCERN IS WITH THE SCOPE OF THE INTRUSION AUTHORIZED BY A
WARRANT.  BUT THE RIGHT TO SEIZE ITEMS PROPERLY SUBJECT TO SEIZURE
BECAUSE IN OPEN VIEW AT THE TIME OF ARREST IS QUITE INDEPENDENT OF ANY
POWER TO SEARCH FOR SUCH ITEMS PURSUANT TO A WARRANT.  THE ENTRY IN THE
PRESENT CASE DID NOT DEPEND FOR ITS AUTHORITY ON A SEARCH WARRANT BUT
WAS CONCEDEDLY AUTHORIZED BY PROBABLE CAUSE TO EFFECT A VALID ARREST. 
THE INTRUSION DID NOT EXCEED THAT AUTHORITY.  THE INTRUSION WAS LIMITED
IN SCOPE TO THE CIRCUMSTANCES WHICH JUSTIFIED THE ENTRY IN THE FIRST
PLACE-- THE ARREST OF PETITIONER.  THERE WAS NO GENERAL SEARCH; INDEED,
THERE WAS NO SEARCH AT ALL.  THE AUTOMOBILE ITSELF WAS EVIDENCE
PROPERLY SUBJECT TO SEIZURE AND WAS IN OPEN VIEW AT THE TIME AND PLACE
OF ARREST.  /6/ 

ONLY RARELY CAN IT BE SAID THAT EVIDENCE SEIZED INCIDENT TO AN
ARREST IS TRULY UNEXPECTED OR INADVERTENT.  INDEED, IF THE POLICE
OFFICER HAD NO EXPECTATION OF DISCOVERING WEAPONS, CONTRABAND, OR OTHER
EVIDENCE, HE WOULD MAKE NO SEARCH.  IT APPEARS TO ME THAT THE RULE
ADOPTED BY THE COURT TODAY, FOR ALL PRACTICAL PURPOSES, ABOLISHES
SEIZURE INCIDENT TO ARREST.  THE MAJORITY REJECTS THE TEST OF
REASONABLENESS PROVIDED IN THE FOURTH AMENDMENT AND SUBSTITUTES A PER
SE RULE-- IF THE POLICE COULD HAVE OBTAINED A WARRANT AND DID NOT, THE
SEIZURE, NO MATTER HOW REASONABLE, IS VOID.  BUT THE FOURTH AMENDMENT
DOES NOT REQUIRE THAT EVERY SEARCH BE MADE PURSUANT TO A WARRANT.  IT
PROHIBITS ONLY "UNREASONABLE SEARCHES AND SEIZURES."  THE RELEVANT TEST
IS NOT THE REASONABLENESS OF THE OPPORTUNITY TO PROCURE A WARRANT, BUT
THE REASONABLENESS OF THE SEIZURE UNDER ALL THE CIRCUMSTANCES.  THE
TEST OF REASONABLENESS CANNOT BE FIXED BY PER SE RULES; EACH CASE MUST
BE DECIDED ON ITS OWN FACTS. 

FOR ALL THE REASONS STATED ABOVE, I BELIEVE THE SEIZURE AND SEARCH
OF PETITIONER'S CAR WAS REASONABLE AND, THEREFORE, AUTHORIZED BY THE
FOURTH AMENDMENT.  THE EVIDENCE SO OBTAINED VIOLATED NEITHER THE FIFTH
AMENDMENT WHICH DOES CONTAIN AN EXCLUSIONARY RULE, NOR THE FOURTH
AMENDMENT WHICH DOES NOT.  THE JURY OF PETITIONER'S PEERS, AS CONSCIOUS
AS WE OF THE AWESOME GRAVITY OF THEIR DECISION, HEARD THAT EVIDENCE AND
FOUND THE PETITIONER GUILTY OF MURDER.  I CANNOT IN GOOD CONSCIENCE
UPSET THAT VERDICT. 

/1/  THERE ARE OF COURSE CERTAIN SEARCHES WHICH CONSTITUTIONALLY
CANNOT BE AUTHORIZED EVEN WITH A SEARCH WARRANT OR SUBPOENA.  SEE,
E.G., BOYD V. UNITED STATES, 116 U.S. 616 (1886); ROCHIN V. CALIFORNIA,
342 U.S. 165, 174 (1952) (BLACK, J., CONCURRING); SCHMERBER V.
CALIFORNIA, 384 U.S. 757, 773 (1966) (BLACK, J., DISSENTING). 

/2/  THE MAJORITY ATTEMPTS TO RELY ON PRESTON V. UNITED STATES, 376
U.S. 364 (1964), TO SUPPORT ITS HOLDING THAT THE POLICE COULD NOT
SEARCH PETITIONER'S AUTOMOBILE AT THE STATION HOUSE.  BUT THIS CASE IS
NOT PRESTON, NOR IS IT CONTROLLED BY PRESTON.  THE POLICE ARRESTED
PRESTON FOR VAGRANCY.  NO CLAIM WAS MADE THAT THE POLICE HAD ANY
AUTHORITY TO HOLD HIS CAR IN CONNECTION WITH THAT CHARGE.  THE FACT
THAT THE POLICE HAD CUSTODY OF PRESTON'S CAR WAS TOTALLY UNRELATED TO
THE VAGRANCY CHARGE FOR WHICH THEY ARRESTED HIM; SO WAS THEIR
SUBSEQUENT SEARCH OF THE CAR.  HERE THE OFFICERS ARRESTED PETITIONER
FOR MURDER.  THEY SEIZED PETITIONER'S CAR AS EVIDENCE OF THE CRIME FOR
WHICH HE WAS ARRESTED.  THEIR SUBSEQUENT SEARCH OF THE CAR WAS DIRECTLY
RELATED TO THE REASON PETITIONER WAS ARRESTED AND THE REASON HIS CAR
HAD BEEN SEIZED AND, THEREFORE, WAS VALID UNDER THIS COURT'S DECISION
IN COOPER V. CALIFORNIA, 386 U.S. 58 (1967). 

MY BROTHER WHITE POINTS OUT THAT THE POLICE IN THE PRESENT CASE NOT
ONLY SEARCHED THE CAR IMMEDIATELY UPON TAKING IT TO THE STATION HOUSE,
BUT ALSO SEARCHED IT 11 MONTHS AND 14 MONTHS AFTER SEIZURE.  WE HELD IN
COOPER, WHERE THE SEARCH OCCURRED ONE WEEK AFTER SEIZURE, THAT THE
FOURTH AMENDMENT IS NOT VIOLATED BY THE EXAMINATION OR SEARCH OF A CAR
VALIDLY HELD BY OFFICERS FOR USE AS EVIDENCE IN A PENDING TRIAL.  IN MY
VIEW THE POLICE ARE ENTITLED TO SEARCH A CAR WHETHER DETAINED FOR A
WEEK OR FOR A YEAR WHERE THAT CAR IS BEING PROPERLY HELD AS RELEVANT
EVIDENCE OF THE CRIME CHARGED. 

/3/  THE FACTS IN KER UNDERMINE THE MAJORITY'S ATTEMPT TO DISTINGUISH
IT FROM THE INSTANT CASE.  THE ARRESTING OFFICER THERE LEARNED FROM
OTHER POLICEMEN THAT KER HAD BEEN OBSERVED MEETING WITH A KNOWN
MARIHUANA SUPPLIER.  THE ARRESTING OFFICER HAD RECEIVED INFORMATION AT
VARIOUS TIMES OVER AN EIGHT-MONTH PERIOD THAT KER WAS SELLING MARIHUANA
FROM HIS APARTMENT AND THAT HE WAS SECURING THIS MARIHUANA FROM THE
KNOWN SUPPLIER.  THE ARRESTING OFFICER HAD A "MUG"  PHOTOGRAPH OF KER
AT THE TIME OF THE ARREST AND TESTIFIED THAT FOR AT LEAST TWO MONTHS HE
HAD RECEIVED INFORMATION AS TO KER'S MARIHUANA ACTIVITIES FROM A NAMED
INFORMANT WHO HAD PREVIOUSLY GIVEN INFORMATION LEADING TO THREE OTHER
ARRESTS AND WHOSE INFORMATION WAS BELIEVED TO BE RELIABLE.  THE
ARRESTING OFFICER DID NOT KNOW WHETHER KER WOULD BE PRESENT AT HIS
APARTMENT ON THE NIGHT OF ARREST.  THE OFFICER HAD NEITHER AN ARREST
NOR A SEARCH WARRANT.  HE ENTERED KER'S APARTMENT, PLACED KER UNDER
ARREST, AND SEIZED THE BLOCK OF MARIHUANA IN PLAIN VIEW IN THE
ADJOINING ROOM.  THIS COURT HELD THAT THE SEIZURE WAS REASONABLE AND
THEREFORE VALID UNDER THE FOURTH AMENDMENT. 

/4/  THE MAJORITY CORRECTLY NOTES, ANTE, AT 464, THAT THIS COURT IN
WARDEN V. HAYDEN, 387 U.S. 294 (1967), FLATLY REJECTED THE DISTINCTION
FOR PURPOSES OF THE FOURTH AMENDMENT BETWEEN "MERE EVIDENCE" AND
CONTRABAND, A DISTINCTION WHICH THE MAJORITY APPEARS TO ME TO REINSTATE
AT ANOTHER POINT IN ITS OPINION, ANTE, AT 471 AND 472. 

/5/  THE CASES CITED BY THE MAJORITY SIMPLY DO NOT SUPPORT THE
MAJORITY'S NEW RULE.  FOR INSTANCE, WHEN THE POLICE IN STEELE V. UNITED
STATES, 267 U.S. 498 (1925), ENTERED A WAREHOUSE UNDER THE AUTHORITY OF
A SEARCH WARRANT ISSUED ON A SHOWING OF PROBABLE CAUSE THAT THE
PROHIBITION ACT WAS BEING VIOLATED AND NAMING "CASES OF WHISKEY" AS THE
OBJECTS OF SEARCH, IT CAN SCARCELY BE SAID THAT THEIR DISCOVERY AND
SEIZURE OF BARRELS OF WHISKEY AND BOTTLES AND BOTTLING EQUIPMENT IN
PLAIN VIEW WERE "INADVERTENT." 

THE MAJORITY STATES THAT THE SEIZURE IN WARDEN V. HAYDEN, SUPRA, WAS
JUSTIFIED BECAUSE THE POLICE "INADVERTENTLY" CAME ACROSS THE EVIDENCE
WHILE IN HOT PURSUIT OF A FLEEING SUSPECT.  IN THAT CASE THE POLICE
ANSWERED THE CALL OF TWO WITNESSES WHO STATED THAT AN ARMED ROBBER HAD
JUST HELD UP A BUSINESS.  THE WITNESSES DESCRIBED THE ROBBER AND THE
CLOTHES HE WAS WEARING.  THEY HAD FOLLOWED THE ROBBER TO A PARTICULAR
HOUSE.  THE POLICE SEARCHED THE HOUSE AND SEIZED (1) A SHOTGUN AND A
PISTOL FOUND IN A TOILET ON THE SECOND FLOOR; (2) AMMUNITION FOR THE
PISTOL AND A CAP LIKE THE ONE WORN BY THE ROBBER, BOTH FOUND BENEATH
THE MATTRESS IN THE DEFENDANT'S BEDROOM; AND (3) A JACKET AND TROUSERS
OF THE TYPE THE FLEEING MAN WAS SAID TO HAVE WORN, FOUND IN A WASHING
MACHINE IN THE BASEMENT.  IT IS QUITE DIFFICULT FOR ME TO ACCEPT THE
MAJORITY'S CHARACTERIZATION OF THESE DISCOVERIES AS "INADVERTENT." 

SEE ALSO UNITED STATES V. LEE, 274 U.S. 559 (1927), ANOTHER CASE
CITED BY THE MAJORITY, WHERE COAST GUARD OFFICERS, WITH PROBABLE CAUSE
TO BELIEVE THAT A BOAT WAS BEING USED TO VIOLATE THE PROHIBITION ACT,
SHINED A SEARCHLIGHT ACROSS THE DECK AND DISCOVERED ILLICIT WHISKEY. 
THE ADMISSION OF TESTIMONY REGARDING THAT DISCOVERY WAS UPHELD BY THIS
COURT AGAINST A FOURTH AMENDMENT CHALLENGE, ALTHOUGH THE DISCOVERY
COULD HARDLY BE TERMED "INADVERTENT." 

/6/  MOREOVER, WHAT A PERSON KNOWINGLY EXPOSES TO THE PUBLIC IS NOT
A SUBJECT OF FOURTH AMENDMENT PROTECTION.  SEE LEWIS V. UNITED STATES,
385 U.S. 206, 210 (1966); UNITED STATES V. LEE, 274 U.S. 559, 563
(1927); HESTER V. UNITED STATES, 265 U.S. 57 (1924). 

MR. JUSTICE BLACKMUN JOINS MR. JUSTICE BLACK IN PARTS II AND III OF
THIS OPINION AND IN THAT PORTION OF PART I THEREOF WHICH IS TO THE
EFFECT THAT THE FOURTH AMENDMENT SUPPORTS NO EXCLUSIONARY RULE. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING AND
DISSENTING. 

I WOULD AFFIRM THE JUDGMENT.  IN MY VIEW, COOLIDGE'S PONTIAC WAS
LAWFULLY SEIZED AS EVIDENCE OF THE CRIME IN PLAIN SIGHT AND THEREAFTER
WAS LAWFULLY SEARCHED UNDER COOPER V. CALIFORNIA, 386 U.S. 58 (1967). 
I AM THEREFORE IN SUBSTANTIAL DISAGREEMENT WITH PARTS II-C AND II-D OF
THE COURT'S OPINION.  NEITHER DO I AGREE WITH PART II-B, AND I CAN
CONCUR ONLY IN THE RESULT AS TO PART III. 

        I 

THE FOURTH AMENDMENT COMMANDS THAT THE PUBLIC SHALL BE SECURE IN
THEIR "PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE
SEARCHES AND SEIZURES . . . " AS TO PERSONS, THE OVERWHELMING WEIGHT OF
AUTHORITY IS THAT A POLICE OFFICER MAY MAKE AN ARREST WITHOUT A WARRANT
WHEN HE HAS PROBABLE CAUSE TO BELIEVE THE SUSPECT HAS COMMITTED A
FELONY.  /1/  THE GENERAL RULE ALSO IS THAT UPON THE LAWFUL ARREST OF A
PERSON, HE AND THE AREA UNDER HIS IMMEDIATE CONTROL MAY BE SEARCHED AND
CONTRABAND OR EVIDENCE SEIZED WITHOUT A WARRANT.  THE RIGHT "TO SEARCH
THE PERSON OF THE ACCUSED WHEN LEGALLY ARRESTED TO DISCOVER AND SEIZE
THE FRUITS OR EVIDENCES OF CRIME . . . HAS BEEN UNIFORMLY MAINTAINED IN
MANY CASES."  WEEKS V. UNITED STATES, 232 U.S. 383, 392 (1914). 
ACCORD, CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969).     WITH RESPECT TO
HOUSES AND OTHER PRIVATE PLACES, THE GENERAL RULE IS OTHERWISE:  A
SEARCH IS INVALID UNLESS MADE ON PROBABLE CAUSE AND UNDER THE AUTHORITY
OF A WARRANT SPECIFYING THE AREA TO BE SEARCHED AND THE OBJECTS TO BE
SEIZED.  THERE ARE VARIOUS EXCEPTIONS TO THE RULE, HOWEVER, PERMITTING
WARRANTLESS ENTRIES AND LIMITED SEARCHES, THE MOST RECURRING BEING THE
ARREST WITHOUT A WARRANT. 

THE CASE BEFORE US CONCERNS THE PROTECTION OFFERED BY THE FOURTH
AMENDMENT TO "EFFECTS" OTHER THAN PERSONAL PAPERS OR DOCUMENTS.  IT IS
CLEAR THAT EFFECTS MAY NOT BE SEIZED WITHOUT PROBABLE CAUSE BUT THE LAW
AS TO WHEN A WARRANT IS REQUIRED TO VALIDATE THEIR SEIZURE IS CONFUSED
AND CONFUSING.  PART OF THE DIFFICULTY DERIVES FROM THE FACT THAT
EFFECTS ENJOY DERIVATIVE PROTECTION WHEN LOCATED IN A HOUSE OR OTHER
AREA WITHIN REACH OF THE FOURTH AMENDMENT.  UNDER EXISTING DOCTRINE,
EFFECTS SEIZED IN WARRANTLESS, ILLEGAL SEARCHES OF HOUSES ARE FRUITS OF
A CONSTITUTIONAL VIOLATION AND MAY NOT BE RECEIVED IN EVIDENCE.  BUT IS
A WARRANT REQUIRED TO SEIZE CONTRABAND OR CRIMINAL EVIDENCE WHEN IT IS
FOUND BY OFFICERS AT A PLACE WHERE THEY ARE LEGALLY ENTITLED TO BE AT
THE TIME?  BEFORE A PERSON IS DEPRIVED OF HIS POSSESSION OR RIGHT TO
POSSESSION OF HIS EFFECTS, MUST A MAGISTRATE CONFIRM THAT WHAT THE
OFFICER HAS LEGALLY SEEN (AND WOULD BE PERMITTED TO TESTIFY ABOUT, IF
RELEVANT AND MATERIAL) IS ACTUALLY CONTRABAND OR CRIMINAL EVIDENCE? 

THE ISSUE ARISES IN DIFFERENT CONTEXTS.  FIRST, THE EFFECTS MAY BE
FOUND ON PUBLIC PROPERTY.  SUPPOSE POLICE ARE INFORMED THAT IMPORTANT
EVIDENCE HAS BEEN SECRETED IN A PUBLIC PARK.  A SEARCH IS MADE AND THE
EVIDENCE FOUND.  ALTHOUGH THE EVIDENCE WAS HIDDEN RATHER THAN
ABANDONED, I HAD NOT THOUGHT A SEARCH WARRANT WAS REQUIRED FOR OFFICERS
TO MAKE A SEIZURE, SEE UNITED STATES V. LEE, 274 U.S. 559 (1927) (BOAT
SEIZED ON PUBLIC WATERS); /2/  HESTER V. UNITED STATES, 265 U.S. 57
(1924) (LIQUOR SEIZED IN OPEN FIELD); ANY MORE THAN A WARRANT IS NEEDED
TO SEIZE AN AUTOMOBILE WHICH IS ITSELF EVIDENCE OF CRIME AND WHICH IS
FOUND ON A PUBLIC STREET OR IN A PARKING LOT.  SEE COOPER V.
CALIFORNIA, SUPRA. 

SECOND, THE ITEMS MAY BE FOUND ON THE PREMISES OF A THIRD PARTY WHO
GIVES CONSENT FOR AN OFFICIAL SEARCH BUT WHO HAS NO AUTHORITY TO
CONSENT TO SEIZURE OF ANOTHER PERSON'S EFFECTS.  FRAZIER V. CUPP, 394
U.S. 731 (1969), WOULD SEEM TO SETTLE THE VALIDITY OF THE SEIZURE
WITHOUT A WARRANT AS LONG AS THE SEARCH ITSELF INVOLVES NO FOURTH
AMENDMENT VIOLATION. 

THIRD, THE POLICE MAY ARREST A SUSPECT IN HIS HOME AND IN THE COURSE
OF A PROPERLY LIMITED SEARCH DISCOVER EVIDENCE OF CRIME.  THE LINE OF
CASES FROM WEEKS V. UNITED STATES, SUPRA, TO HARRIS V. UNITED STATES,
331 U.S. 145 (1947), HAD . RECOGNIZED THE RULE THAT UPON ARREST
SEARCHES OF THE PERSON AND OF ADJACENT AREAS WERE REASONABLE, AND
HARRIS HAD APPROVED AN INCIDENTAL SEARCH OF BROAD SCOPE.  IN THE TERM,
HOWEVER, TRUPIANO V. UNITED STATES, 334 U.S. 699 (1948), DEPARTED FROM
THE HARRIS APPROACH.  IN TRUPIANO, OFFICERS, WITH PROBABLE CAUSE TO
ARREST, ENTERED PROPERTY AND ARRESTED THE DEFENDANT WHILE HE WAS
OPERATING AN ILLEGAL STILL.  THE STILL WAS SEIZED.  TIME AND
CIRCUMSTANCE WOULD HAVE PERMITTED THE OFFICERS TO SECURE BOTH ARREST
AND SEARCH WARRANTS, BUT THEY HAD OBTAINED NEITHER.  THE COURT DID NOT
DISTURB SEIZURE OF THE PERSON WITHOUT WARRANT BUT INVALIDATED SEIZURE
OF THE STILL SINCE THE OFFICERS COULD HAVE HAD A WARRANT BUT DID NOT. 
UNITED STATES V. RABINOWITZ, 339 U.S. 56 (1950), HOWEVER, RETURNED TO
THE RULE THAT THE VALIDITY OF SEARCHES INCIDENT TO ARREST DOES NOT
DEPEND ON THE PRACTICABILITY OF SECURING A WARRANT.  AND, WHILE CHIMEL
V. CALIFORNIA, SUPRA, NARROWED THE PERMISSIBLE SCOPE OF INCIDENT
SEARCHES TO THE PERSON AND THE IMMEDIATE AREA WITHIN REACH OF THE
DEFENDANT, IT DID NOT PURPORT TO RE-ESTABLISH THE TRUPIANO RULE THAT
SEARCHES ACCOMPANYING ARRESTS ARE INVALID IF THERE IS OPPORTUNITY TO
GET A WARRANT. 

FINALLY, OFFICERS MAY BE ON A SUSPECT'S PREMISES EXECUTING A SEARCH
WARRANT AND IN THE COURSE OF THE AUTHORIZED SEARCH DISCOVER EVIDENCE OF
CRIME NOT COVERED BY THE WARRANT.  MARRON V. UNITED STATES, 275 U.S.
192 (1927), FLATLY HELD THAT LEGAL PRESENCE UNDER A WARRANT DID NOT
ITSELF JUSTIFY THE SEIZURE OF SUCH EVIDENCE.  HOWEVER, SEIZURE OF THE
SAME EVIDENCE WAS PERMITTED BECAUSE IT WAS FOUND IN PLAIN SIGHT IN THE
COURSE OF MAKING AN ARREST AND AN ACCOMPANYING SEARCH.  IT IS AT LEAST
ODD TO ME TO PERMIT PLAIN-SIGHT SEIZURES ARISING IN CONNECTION WITH
WARRANTLESS ARRESTS, AS THE LONG LINE OF CASES ENDING WITH CHIMEL HAS
DONE, OR ARISING IN THE COURSE OF A HOT-PURSUIT SEARCH FOR A FELON,
WARDEN V. HAYDEN, 387 U.S. 294 (1967); HESTER V. UNITED STATES, SUPRA;
AND YET FORBID THE WARRANTLESS SEIZURE OF EVIDENCE IN PLAIN SIGHT WHEN
OFFICERS ENTER A HOUSE UNDER A SEARCH WARRANT THAT IS PERFECTLY VALID
BUT DOES NOT COVER THE ITEMS ACTUALLY SEIZED.  I HAVE MY DOUBTS THAT
THIS ASPECT OF MARRON CAN SURVIVE LATER CASES IN THIS COURT,
PARTICULARLY ZAP V. UNITED STATES, 328 U.S. 624 (1946), VACATED ON
OTHER GROUNDS, 330 U.S. 800 (1947), WHERE FEDERAL INVESTIGATORS SEIZED
A CANCELLED CHECK EVIDENCING A CRIME THAT HAD BEEN OBSERVED DURING THE
COURSE OF AN OTHERWISE LAWFUL SEARCH.  SEE ALSO STANLEY V. GEORGIA, 394
U.S. 557, 569 (1969) (STEWART, J., CONCURRING IN RESULT).  CF. CHIMEL
V. CALIFORNIA, SUPRA; WARDEN V. HAYDEN, SUPRA; FRAZIER V. CUPP, SUPRA.
APPARENTLY THE MAJORITY AGREES, FOR IT LUMPS PLAIN-SIGHT SEIZURES IN
SUCH CIRCUMSTANCES ALONG WITH OTHER SITUATIONS WHERE SEIZURES ARE MADE
AFTER A LEGAL ENTRY. 

IN ALL OF THESE SITUATIONS, IT IS APPARENT THAT SEIZURE OF EVIDENCE
WITHOUT A WARRANT IS NOT ITSELF AN INVASION EITHER OF PERSONAL PRIVACY
OR OF PROPERTY RIGHTS BEYOND THAT ALREADY AUTHORIZED BY LAW.  ONLY THE
POSSESSORY INTEREST OF A DEFENDANT IN HIS EFFECTS IS IMPLICATED.  AND
IN THESE VARIOUS CIRCUMSTANCES, AT LEAST WHERE THE DISCOVERY OF
EVIDENCE IS "INADVERTENT," THE COURT WOULD PERMIT THE SEIZURE BECAUSE,
IT IS SAID, "THE MINOR PERIL TO FOURTH AMENDMENT PROTECTIONS" IS
OVERRIDDEN BY THE "MAJOR GAIN IN EFFECTIVE LAW ENFORCEMENT" INHERENT IN
AVOIDING THE "NEEDLESS INCONVENIENCE" OF PROCURING A WARRANT.  ANTE, AT
467, 468.  I TAKE THIS TO MEAN THAT BOTH THE POSSESSORY INTEREST OF THE
DEFENDANT AND THE IMPORTANCE OF HAVING A MAGISTRATE CONFIRM THAT WHAT
THE OFFICER SAW WITH HIS OWN EYES IS IN FACT CONTRABAND OR EVIDENCE OF
CRIME ARE NOT SUBSTANTIAL CONSTITUTIONAL CONSIDERATIONS.  OFFICERS IN
THESE CIRCUMSTANCES NEED NEITHER GUARD NOR IGNORE THE EVIDENCE WHILE A
WARRANT IS SOUGHT.  IMMEDIATE SEIZURE IS JUSTIFIED AND REASONABLE UNDER
THE FOURTH AMENDMENT. 

THE COURT WOULD INTERPOSE IN SOME OR ALL OF THESE SITUATIONS,
HOWEVER, A CONDITION THAT THE DISCOVERY OF THE DISPUTED EVIDENCE BE
"INADVERTENT."  IF IT IS "ANTICIPATED," THAT IS IF "THE POLICE KNOW IN
ADVANCE THE LOCATION OF THE EVIDENCE AND INTEND TO SEIZE IT," THE
SEIZURE IS INVALID.  ID., AT 470. 

I HAVE GREAT DIFFICULTY WITH THIS APPROACH.  LET US SUPPOSE OFFICERS
SECURE A WARRANT TO SEARCH A HOUSE FOR A RIFLE.  WHILE STAYING WELL
WITHIN THE RANGE OF A RIFLE SEARCH, THEY DISCOVER TWO PHOTOGRAPHS OF
THE MURDER VICTIM, BOTH IN PLAIN SIGHT IN THE BEDROOM.  ASSUME ALSO
THAT THE DISCOVERY OF THE ONE PHOTOGRAPH WAS INADVERTENT BUT FINDING
THE OTHER WAS ANTICIPATED.  THE COURT WOULD PERMIT THE SEIZURE OF ONLY
ONE OF THE PHOTOGRAPHS.  BUT IN TERMS OF THE "MINOR" PERIL TO FOURTH
AMENDMENT VALUES THERE IS SURELY NO DIFFERENCE BETWEEN THESE TWO
PHOTOGRAPHS:  THE INTERFERENCE WITH POSSESSION IS THE SAME IN EACH CASE
AND THE OFFICERS' APPRAISAL OF THE PHOTOGRAPH THEY EXPECTED TO SEE IS
NO LESS RELIABLE THAN THEIR JUDGMENT ABOUT THE OTHER.  AND IN BOTH
SITUATIONS THE ACTUAL INCONVENIENCE AND DANGER TO EVIDENCE REMAIN
IDENTICAL IF THE OFFICERS MUST DEPART AND SECURE A WARRANT.  THE COURT,
HOWEVER, STATES THAT THE STATE WILL SUFFER NO CONSTITUTIONALLY
COGNIZABLE INCONVENIENCE FROM INVALIDATING ANTICIPATED SEIZURES SINCE
IT HAD PROBABLE CAUSE TO SEARCH FOR THE ITEMS SEIZED AND COULD HAVE
INCLUDED THEM IN A WARRANT. 

THIS SEEMS A PUNITIVE AND EXTRAVAGANT APPLICATION OF THE
EXCLUSIONARY RULE.  IF THE POLICE HAVE PROBABLE CAUSE TO SEARCH FOR A
PHOTOGRAPH AS WELL AS A RIFLE AND THEY PROCEED TO SEEK A WARRANT, THEY
COULD HAVE NO POSSIBLE MOTIVE FOR DELIBERATELY INCLUDING THE RIFLE BUT
OMITTING THE PHOTOGRAPH.  QUITE THE CONTRARY IS TRUE.  ONLY OVERSIGHT
OR CARELESS MISTAKE WOULD EXPLAIN THE OMISSION IN THE WARRANT
APPLICATION IF THE POLICE WERE CONVINCED THEY HAD PROBABLE CAUSE TO
SEARCH FOR THE PHOTOGRAPH.  OF COURSE, THEY MAY MISJUDGE THE FACTS AND
NOT REALIZE THEY HAVE PROBABLE CAUSE FOR THE PICTURE, OR THE MAGISTRATE
MAY FIND AGAINST THEM AND NOT ISSUE A WARRANT FOR IT.  IN EITHER EVENT
THE OFFICERS MAY VALIDLY SEIZE THE PHOTOGRAPH FOR WHICH THEY HAD NO
PROBABLE CAUSE TO SEARCH BUT THE OTHER PHOTOGRAPH IS EXCLUDED FROM
EVIDENCE WHEN THE COURT SUBSEQUENTLY DETERMINES THAT THE OFFICERS,
AFTER ALL, HAD PROBABLE CAUSE TO SEARCH FOR IT. 

MORE IMPORTANT, THE INADVERTENCE RULE IS UNNECESSARY TO FURTHER ANY
FOURTH AMENDMENT ENDS AND WILL ACCOMPLISH NOTHING.  POLICE WITH A
WARRANT FOR A RIFLE MAY SEARCH ONLY PLACES WHERE RIFLES MIGHT BE AND
MUST TERMINATE THE SEARCH ONCE THE RIFLE IS FOUND; THE INADVERTENCE
RULE WILL IN NO WAY REDUCE THE NUMBER OF PLACES INTO WHICH THEY MAY
LAWFULLY LOOK.  SO, TOO, THE AREAS OF PERMISSIBLE SEARCH INCIDENT TO
ARREST ARE STRICTLY CIRCUMSCRIBED BY CHIMEL.  EXCLUDING EVIDENCE SEEN
FROM WITHIN THOSE AREAS CAN HARDLY BE EFFECTIVE TO OPERATE TO PREVENT
WIDER, UNAUTHORIZED SEARCHES.  IF THE POLICE STRAY OUTSIDE THE SCOPE OF
AN AUTHORIZED CHIMEL SEARCH THEY ARE ALREADY IN VIOLATION OF THE FOURTH
AMENDMENT, AND EVIDENCE SO SEIZED WILL BE EXCLUDED; ADDING A SECOND
REASON FOR EXCLUDING EVIDENCE HARDLY SEEMS WORTH THE CANDLE.  PERHAPS
THE COURT IS CONCERNED THAT OFFICERS, HAVING THE RIGHT TO INTRUDE UPON
PRIVATE PROPERTY TO MAKE ARRESTS, WILL USE THAT RIGHT AS A PRETEXT TO
OBTAIN ENTRY TO SEARCH FOR OBJECTS IN PLAIN SIGHT, CF. CHIMEL V.
CALIFORNIA, SUPRA, AT 767, BUT, IF SO, SUCH A CONCERN IS UNFOUNDED. 
THE REASON IS THAT UNDER CHIMEL THE POLICE CAN ENTER ONLY INTO THOSE
PORTIONS OF THE PROPERTY INTO WHICH ENTRY IS NECESSARY TO EFFECT THE
ARREST.  GIVEN THE RESTRICTIONS OF CHIMEL, THE POLICE FACE A
SUBSTANTIAL RISK THAT IN EFFECTING AN ARREST AND A SEARCH INCIDENT
THERETO THEY WILL NEVER ENTER INTO THOSE PORTIONS OF THE PROPERTY FROM
WHICH THEY CAN PLAINLY SEE THE OBJECTS FOR WHICH THEY ARE SEARCHING AND
THAT, IF THEY DO NOT, THOSE OBJECTS WILL BE DESTROYED BEFORE THEY CAN
RETURN AND CONDUCT A SEARCH OF THE ENTIRE PREMISES PURSUANT TO A
WARRANT.  IF THE POLICE IN FACT POSSESS PROBABLE CAUSE TO BELIEVE THAT
WEAPONS, CONTRABAND, OR EVIDENCE OF CRIME IS IN PLAIN VIEW ON THE
PREMISES, IT WILL BE FAR SAFER TO OBTAIN A SEARCH WARRANT THAN TO TAKE
A CHANCE THAT IN MAKING AN ARREST THEY WILL COME INTO PLAIN VIEW OF THE
OBJECT THEY ARE SEEKING.  IT IS ONLY WHEN THEY LACK PROBABLE CAUSE FOR
A SEARCH-- WHEN, THAT IS, DISCOVERY OF OBJECTS IN PLAIN VIEW FROM A
LAWFUL VANTAGE POINT IS INADVERTENT-- THAT ENTRY TO MAKE AN ARREST
MIGHT, AS A PRACTICAL MATTER, ASSIST THE POLICE IN DISCOVERING AN
OBJECT FOR WHICH THEY COULD NOT HAVE OBTAINED A WARRANT.  BUT THE
MAJORITY IN THAT CIRCUMSTANCE WOULD UPHOLD THEIR AUTHORITY TO SEIZE
WHAT THEY SEE.  I THUS DOUBT THAT THE COURT'S RULE WILL HAVE ANY
MEASURABLE EFFECT ON POLICE CONDUCT.  IT WILL MERELY ATTACH UNDUE
CONSEQUENCES TO WHAT WILL MOST OFTEN BE AN UNINTENDED MISTAKE OR A
MISAPPREHENSION OF SOME OF THIS COURT'S PROBABLE-CAUSE DECISIONS,
FAILING WHICH, I AM AFRAID, WE ALL HAVE. 

BY INVALIDATING OTHERWISE VALID, PLAIN-SIGHT SEIZURES WHERE OFFICERS
HAVE PROBABLE CAUSE AND PRESUMABLY, ALTHOUGH THE COURT DOES NOT SAY SO,
OPPORTUNITY TO SECURE A WARRANT, THE COURT SEEMS TO TURN IN THE
DIRECTION OF THE TRUPIANO RULE, REJECTED IN RABINOWITZ AND NOT REVIVED
IN CHIMEL.  BUT IT SEEMS UNSURE OF ITS OWN RULE. 

IT IS CAREFUL TO NOTE THAT COOLIDGE'S CAR IS NOT CONTRABAND, STOLEN,
OR IN ITSELF DANGEROUS.  APPARENTLY, CONTRABAND, STOLEN, OR DANGEROUS
MATERIALS MAY BE SEIZED WHEN DISCOVERED IN THE COURSE OF AN OTHERWISE
AUTHORIZED SEARCH EVEN IF THE DISCOVERY IS FULLY ANTICIPATED AND A
WARRANT COULD HAVE BEEN OBTAINED.  THE DISTINCTION THE COURT DRAWS
BETWEEN CONTRABAND AND MERE EVIDENCE OF CRIME IS REMINISCENT OF THE
CONFUSING AND UNWORKABLE APPROACH THAT I THOUGHT WARDEN V. HAYDEN,
SUPRA, HAD FIRMLY PUT ASIDE. 

NEITHER DOES THE COURT IN SO MANY WORDS LIMIT CHIMEL; ON THE
CONTRARY, IT INDICATES THAT WARRANTLESS CHIMEL-TYPE SEARCHES WILL NOT
BE DISTURBED, EVEN IF THE POLICE "ANTICIPATE THAT THEY WILL FIND
SPECIFIC EVIDENCE DURING THE COURSE OF SUCH A SEARCH."  ANTE, AT 482. 
THE COURT ALSO CONCEDES THAT, WHEN AN ARRESTING OFFICER "COMES WITHIN
PLAIN VIEW OF A PIECE OF EVIDENCE, NOT CONCEALED, ALTHOUGH OUTSIDE OF
THE AREA UNDER THE IMMEDIATE CONTROL OF THE ARRESTEE, THE OFFICER MAY
SEIZE IT, SO LONG AS THE PLAIN VIEW WAS OBTAINED IN THE COURSE OF AN
APPROPRIATELY LIMITED SEARCH OF THE ARRESTEE."  ID., AT 466 N. 24.  YET
TODAY'S DECISION IS A LIMITATION ON CHIMEL, FOR IN THE LATTER EXAMPLE,
THE COURT WOULD PERMIT SEIZURE ONLY IF THE PLAIN VIEW WAS INADVERTENTLY
OBTAINED.  IF THE POLICE, THAT IS, FULLY ANTICIPATED THAT, WHEN THEY
ARREST A SUSPECT AS HE IS ENTERING THE FRONT DOOR OF HIS HOME, THEY
WILL FIND A CREDIT CARD IN HIS POCKET AND A PICTURE IN PLAIN SIGHT ON
THE WALL OPPOSITE THE DOOR, BOTH OF WHICH WILL IMPLICATE HIM IN A
CRIME, THEY MAY UNDER TODAY'S DECISION SEIZE THE CREDIT CARD BUT NOT
THE PICTURE.  THIS IS A DISTINCTION THAT I FIND TO BE WITHOUT BASIS AND
THAT THE COURT MAKES NO ATTEMPT TO EXPLAIN.  I CAN THEREFORE CONCLUDE
ONLY THAT CHIMEL AND TODAY'S HOLDING ARE SQUARELY INCONSISTENT AND THAT
THE COURT, UNABLE TO PERCEIVE ANY REASONED DISTINCTION, HAS ABANDONED
ANY ATTEMPT TO FIND ONE.     THE COURT ALSO FAILS TO MENTION SEARCHES
CARRIED OUT WITH THIRD-PARTY CONSENT.  ASSUME FOR THE MOMENT THAT
AUTHORITIES ARE RELIABLY INFORMED THAT A SUSPECT, SUBJECT TO ARREST,
BUT NOT YET APPREHENDED, HAS CONCEALED SPECIFIED EVIDENCE OF HIS CRIME
IN THE HOUSE OF A FRIEND.  THE FRIEND FREELY CONSENTS TO A SEARCH OF
HIS HOUSE AND ACCOMPANIES THE OFFICERS IN THE PROCESS.  THE EVIDENCE IS
FOUND PRECISELY WHERE THE OFFICERS WERE TOLD THEY WOULD FIND IT, AND
THE OFFICERS PROCEED TO SEIZE IT, AWARE, HOWEVER, THAT THE FRIEND LACKS
AUTHORITY FROM THE SUSPECT TO CONFER POSSESSION ON THEM.  THE SUSPECT'S
INTEREST IN NOT HAVING HIS POSSESSION FORCIBLY INTERFERED WITH IN THE
ABSENCE OF A WARRANT FROM A MAGISTRATE IS IDENTICAL TO THE INTEREST OF
COOLIDGE, AND ONE WOULD ACCORDINGLY EXPECT THE COURT TO DEAL WITH THE
QUESTION.  FRAZIER V. CUPP, SUPRA, INDICATES THAT A SEIZURE IN THESE
CIRCUMSTANCES WOULD BE LAWFUL, AND THE COURT TODAY NEITHER OVERRULES
NOR DISTINGUISHES FRAZIER; IN FACT, PART III OF THE COURT'S OPINION,
WHICH DISCUSSES THE OFFICERS' RECEIPT OF COOLIDGE'S CLOTHING AND
WEAPONS FROM MRS. COOLIDGE, IMPLICITLY APPROVES FRAZIER. 

NEITHER DOES THE COURT INDICATE WHETHER IT WOULD APPLY THE
INADVERTENCE REQUIREMENT TO SEARCHES MADE IN PUBLIC PLACES, ALTHOUGH
ONE MIGHT INFER FROM ITS APPROVAL OF UNITED STATES V. LEE, SUPRA, WHICH
HELD ADMISSIBLE A CHEMICAL ANALYSIS OF BOOTLEG LIQUOR OBSERVED BY
REVENUE OFFICERS IN PLAIN SIGHT, THAT IT WOULD NOT. 

AWARE OF THESE INCONSISTENCIES, THE COURT ADMITS THAT "IT WOULD BE
NONSENSE TO PRETEND THAT OUR DECISION TODAY REDUCES FOURTH AMENDMENT
LAW TO COMPLETE ORDER AND HARMONY."  ANTE, AT 483.  BUT IT CONCLUDES
THAT LOGICAL CONSISTENCY CANNOT BE ATTAINED IN CONSTITUTIONAL LAW AND
ULTIMATELY COMES TO REST UPON ITS BELIEF "THAT THE RESULT REACHED IN
THIS CASE IS CORRECT.  . , . " ID., AT 484.  IT MAY BE THAT
CONSTITUTIONAL LAW CANNOT BE FULLY COHERENT AND THAT CONSTITUTIONAL
PRINCIPLES OUGHT NOT ALWAYS BE SPUN OUT TO THEIR LOGICAL LIMITS, BUT
THIS DOES NOT MEAN THAT WE SHOULD CEASE TO STRIVE FOR CLARITY AND
CONSISTENCY OF ANALYSIS.  HERE THE COURT HAS A READY OPPORTUNITY, ONE
WAY OR ANOTHER, TO BRING CLARITY AND CERTAINTY TO A BODY OF LAW THAT
LOWER COURTS AND LAW ENFORCEMENT OFFICIALS OFTEN FIND CONFUSING. 
INSTEAD, WITHOUT APPARENT REASON, IT ONLY INCREASES THEIR CONFUSION BY
CLINGING TO DISTINCTIONS THAT ARE BOTH UNEXPLAINED AND INEXPLICABLE. 

        II 

IN THE CASE BEFORE US, THE OFFICERS HAD PROBABLE CAUSE BOTH TO
ARREST COOLIDGE AND TO SEIZE HIS CAR.  IN ORDER TO EFFECT HIS ARREST,
THEY WENT TO HIS HOME-- PERHAPS THE MOST OBVIOUS PLACE IN WHICH TO LOOK
FOR HIM.  THEY ALSO MAY HAVE HOPED TO FIND HIS CAR AT HOME AND, IN
FACT, WHEN THEY ARRIVED ON THE PROPERTY TO MAKE THE ARREST, THEY DID
FIND THE 1951 PONTIAC THERE.  THUS, EVEN ASSUMING THAT THE FOURTH
AMENDMENT PROTECTS AGAINST WARRANTLESS SEIZURES OUTSIDE THE HOUSE, BUT
SEE HESTER V. UNITED STATES, SUPRA, AT 59, THE FACT REMAINS THAT THE
OFFICERS HAD LEGALLY ENTERED COOLIDGE'S PROPERTY TO EFFECT AN ARREST
AND THAT THEY SEIZED THE CAR ONLY AFTER THEY OBSERVED IT IN PLAIN VIEW
BEFORE THEM.  THE COURT, HOWEVER, WOULD INVALIDATE THIS SEIZURE ON THE
PREMISE THAT OFFICERS SHOULD NOT BE PERMITTED TO SEIZE EFFECTS IN PLAIN
SIGHT WHEN THEY HAVE ANTICIPATED THEY WILL SEE THEM. 

EVEN ACCEPTING THIS PREMISE OF THE COURT, SEIZURE OF THE CAR WAS NOT
INVALID.  THE MAJORITY MAKES AN ASSUMPTION THAT, WHEN THE POLICE WENT
TO COOLIDGE'S HOUSE TO ARREST HIM, THEY ANTICIPATED THAT THEY WOULD
ALSO FIND THE 1951 PONTIAC THERE.  IN MY OWN READING OF THE RECORD,
HOWEVER, I HAVE FOUND NO EVIDENCE TO SUPPORT THIS ASSUMPTION.  FOR ALL
THE RECORD SHOWS, THE POLICE, ALTHOUGH THEY MAY HAVE HOPED TO FIND THE
PONTIAC AT COOLIDGE'S HOME, DID NOT KNOW ITS EXACT LOCATION WHEN THEY
WENT TO MAKE THE ARREST, AND THEIR OBSERVATION OF IT IN COOLIDGE'S
DRIVEWAY WAS TRULY INADVERTENT.  OF COURSE, THEY DID HAVE PROBABLE
CAUSE TO SEIZE THE CAR, AND, IF THEY HAD HAD A VALID WARRANT AS WELL,
THEY WOULD HAVE BEEN JUSTIFIED IN LOOKING FOR IT IN COOLIDGE'S DRIVEWAY
- A LIKELY PLACE FOR IT TO BE.  BUT IF THE FACT OF PROBABLE CAUSE BARS
THIS SEIZURE, IT WOULD ALSO BAR SEIZURES NOT ONLY OF CARS FOUND AT A
HOUSE, BUT ALSO OF CARS PARKED IN A PARKING LOT, HIDDEN IN SOME
SECLUDED SPOT, OR DELIVERED TO THE POLICE BY A THIRD PARTY AT THE
POLICE STATION.  THIS WOULD SIMPLY BE A RULE THAT THE EXISTENCE OF
PROBABLE CAUSE BARS ALL WARRANTLESS SEIZURES. 

IT IS EVIDENT ON THE FACTS OF THIS CASE THAT COOLIDGE'S PONTIAC WAS
SUBJECT TO SEIZURE IF PROPER PROCEDURES WERE EMPLOYED.  IT IS ALSO
APPARENT THAT THE PONTIAC WAS IN PLAIN VIEW OF THE OFFICERS WHO HAD
LEGALLY ENTERED COOLIDGE'S PROPERTY TO EFFECT HIS ARREST.  I AM
SATISFIED THAT IT WAS PROPERLY SEIZED WHETHER OR NOT THE OFFICERS
EXPECTED THAT IT WOULD BE FOUND WHERE IT WAS.  AND, SINCE THE PONTIAC
WAS LEGALLY SEIZED AS EVIDENCE OF THE CRIME FOR WHICH COOLIDGE WAS
ARRESTED, COOPER V. CALIFORNIA, SUPRA, AUTHORIZED ITS WARRANTLESS
SEARCH WHILE IN LAWFUL CUSTODY OF THE POLICE.  "IT WOULD BE
UNREASONABLE TO HOLD THAT THE POLICE, HAVING TO RETAIN THE CAR IN THEIR
CUSTODY FOR SUCH A LENGTH OF TIME, HAD NO RIGHT, EVEN FOR THEIR OWN
PROTECTION, TO SEARCH IT.  IT IS NO ANSWER TO SAY THAT THE POLICE COULD
HAVE OBTAINED A SEARCH WARRANT, FOR '(THE RELEVANT TEST IS NOT WHETHER
IT IS REASONABLE TO PROCURE A SEARCH WARRANT, BUT WHETHER THE SEARCH
WAS REASONABLE."  . . . UNDER THE CIRCUMSTANCES OF THIS CASE, WE CANNOT
HOLD UNREASONABLE UNDER THE FOURTH AMENDMENT THE EXAMINATION OR SEARCH
OF A CAR VALIDLY HELD BY OFFICERS FOR USE AS EVIDENCE . . . " COOPER V.
CALIFORNIA, SUPRA, AT 61-62. 

        III 

GIVEN THE FOREGOING VIEWS, IT IS PERHAPS UNNECESSARY TO DEAL WITH
THE OTHER GROUNDS OFFERED TO SUSTAIN THE SEARCH OF COOLIDGE'S CAR. 
NONETHELESS, IT MAY BE HELPFUL TO EXPLAIN MY REASONS FOR RELYING ON THE
PLAIN-SIGHT RULE RATHER THAN ON CHAMBERS V. MARONEY, 399 U.S. 42
(1970), TO VALIDATE THIS SEARCH. 

CHAMBERS UPHELD THE SEIZURE AND SUBSEQUENT SEARCH OF AUTOMOBILES AT
THE STATION HOUSE RATHER THAN REQUIRING THE POLICE TO SEARCH CARS
IMMEDIATELY AT THE PLACES WHERE THEY ARE FOUND.  BUT CHAMBERS DID NOT
AUTHORIZE INDEFINITE DETENTION OF AUTOMOBILES SO SEIZED; IT
CONTEMPLATED SOME EXPEDITION IN COMPLETING THE SEARCHES SO THAT
AUTOMOBILES COULD BE RELEASED AND RETURNED TO THEIR OWNERS.  IN THE
PRESENT CASE, HOWEVER, COOLIDGE'S PONTIAC WAS NOT RELEASED QUICKLY BUT
WAS RETAINED IN POLICE CUSTODY FOR MORE THAN A YEAR AND WAS SEARCHED
NOT ONLY IMMEDIATELY AFTER SEIZURE BUT ALSO ON TWO OTHER OCCASIONS:
ONE OF THEM 11 MONTHS AND THE OTHER 14 MONTHS AFTER SEIZURE.  SINCE
FRUITS OF THE LATER SEARCHES AS WELL AS THE EARLIER ONE WERE APPARENTLY
INTRODUCED IN EVIDENCE, I CANNOT LOOK TO CHAMBERS AND WOULD INVALIDATE
THE LATER SEARCHES BUT FOR THE FACT THAT THE POLICE HAD A RIGHT TO
SEIZE AND DETAIN THE CAR NOT BECAUSE IT WAS A CAR, BUT BECAUSE IT WAS
ITSELF EVIDENCE OF CRIME.  IT IS ONLY BECAUSE OF THE LONG DETENTION OF
THE CAR THAT I FIND CHAMBERS INAPPLICABLE, HOWEVER, AND I DISAGREE
STRONGLY WITH THE MAJORITY'S REASONING FOR REFUSING TO APPLY IT. 

AS RECOUNTED EARLIER, ARREST AND SEARCH OF THE PERSON ON PROBABLE
CAUSE BUT WITHOUT A WARRANT IS THE PREVAILING CONSTITUTIONAL AND
LEGISLATIVE RULE, WITHOUT REGARD TO WHETHER ON THE PARTICULAR FACTS
THERE WAS OPPORTUNITY TO SECURE A WARRANT.  APPARENTLY, EXIGENT
CIRCUMSTANCES ARE SO OFTEN PRESENT IN ARREST SITUATIONS THAT IT HAS
BEEN DEEMED IMPROVIDENT TO LITIGATE THE ISSUE IN EVERY CASE. 

IN SIMILAR FASHION, "PRACTICALLY SINCE THE BEGINNING OF THE
GOVERNMENT," CONGRESS AND THE COURT HAVE RECOGNIZED "A NECESSARY
DIFFERENCE BETWEEN A SEARCH OF A STORE, DWELLING HOUSE OR OTHER
STRUCTURE IN RESPECT OF WHICH A PROPER OFFICIAL WARRANT READILY MAY BE
OBTAINED, AND A SEARCH OF A SHIP, MOTOR BOAT, WAGON OR AUTOMOBILE, FOR
CONTRABAND GOODS, WHERE IT IS NOT PRACTICABLE TO SECURE A WARRANT
BECAUSE THE VEHICLE CAN BE QUICKLY MOVED OUT OF THE LOCALITY OR
JURISDICTION IN WHICH THE WARRANT MUST BE SOUGHT."  CARROLL V. UNITED
STATES, 267 U.S. 132, 153 (1925).  AS IN THE CASE OF AN ARREST AND
ACCOMPANYING SEARCH OF A PERSON, SEARCHES OF VEHICLES ON PROBABLE CAUSE
BUT WITHOUT A WARRANT HAVE BEEN DEEMED REASONABLE WITHIN THE MEANING OF
THE FOURTH AMENDMENT WITHOUT REQUIRING PROOF OF EXIGENT CIRCUMSTANCES
BEYOND THE FACT THAT A MOVABLE VEHICLE IS INVOLVED.  THE RULE HAS BEEN
CONSISTENTLY RECOGNIZED, SEE COOPER V. CALIFORNIA, SUPRA; BRINEGAR V.
UNITED STATES, 338 U.S. 160 (1949); HARRIS V. UNITED STATES, SUPRA, AT
168 (DISSENTING OPINION); DAVIS V. UNITED STATES, 328 U.S. 582, 609
(1946) (DISSENTING OPINION); SCHER V. UNITED STATES, 305 U.S. 251
(1938); HUSTY V. UNITED STATES, 282 U.S. 694 (1931); UNITED STATES V.
LEE, SUPRA; AND WAS REAFFIRMED LESS THAN A YEAR AGO IN CHAMBER V.
MARONEY, SUPRA, WHERE A VEHICLE WAS STOPPED ON THE HIGHWAY BUT WAS
SEARCHED AT THE POLICE STATION, THERE BEING PROBABLE CAUSE BUT NO
WARRANT. 

THE MAJORITY NOW APPROVES WARRANTLESS SEARCHES OF VEHICLES IN MOTION
WHEN SEIZED.  ON THE OTHER HAND, WARRANTLESS, PROBABLE-CAUSE SEARCHES
OF PARKED BUT MOVEABLE VEHICLES IN SOME SITUATIONS WOULD BE VALID ONLY
UPON PROOF OF EXIGENT CIRCUMSTANCES JUSTIFYING THE SEARCH.  ALTHOUGH I
AM NOT SURE, IT WOULD SEEM THAT, WHEN POLICE DISCOVER A PARKED CAR THAT
THEY HAVE PROBABLE CAUSE TO SEARCH, THEY MAY NOT IMMEDIATELY SEARCH BUT
MUST SEEK A WARRANT.  BUT IF BEFORE THE WARRANT ARRIVES, THE CAR IS PUT
IN MOTION BY ITS OWNER OR OTHERS, IT MAY BE STOPPED AND SEARCHED ON THE
SPOT OR ELSEWHERE.  IN THE CASE BEFORE US, COOLIDGE'S CAR, PARKED AT
HIS HOUSE, COULD NOT BE SEARCHED WITHOUT A VALID WARRANT, ALTHOUGH IF
COOLIDGE HAD BEEN ARRESTED AS HE DROVE AWAY FROM HIS HOME, IMMEDIATE
SEIZURE AND SUBSEQUENT SEARCH OF THE CAR WOULD HAVE BEEN REASONABLE
UNDER THE FOURTH AMENDMENT. 

I FIND NOTHING IN THE LANGUAGE OR THE UNDERLYING RATIONALE OF THE
LINE OF CASES FROM CARROLL TO CHAMBERS LIMITING VEHICLE SEARCHES AS THE
COURT NOW LIMITS THEM IN SITUATIONS SUCH AS THE ONE BEFORE US.
ALTHOUGH EACH OF THOSE CASES MAY, AS THE COURT ARGUES, HAVE INVOLVED
VEHICLES OR VESSELS IN MOTION PRIOR TO THEIR BEING STOPPED AND
SEARCHED, EACH OF THEM APPROVED THE SEARCH OF A VEHICLE THAT WAS NO
LONGER MOVING AND, WITH THE OCCUPANTS IN CUSTODY, NO MORE LIKELY TO
MOVE THAN THE UNATTENDED BUT MOVABLE VEHICLE PARKED ON THE STREET OR IN
THE DRIVEWAY OF A PERSON'S HOUSE.  IN BOTH SITUATIONS THE PROBABILITY
OF MOVEMENT AT THE INSTANCE OF FAMILY OR FRIENDS IS EQUALLY REAL, AND
HENCE THE RESULT SHOULD BE THE SAME WHETHER THE CAR IS AT REST OR IN
MOTION WHEN IT IS DISCOVERED. 

IN HUSTY V. UNITED STATES, SUPRA, THE POLICE HAD LEARNED FROM A
RELIABLE INFORMANT THAT HUSTY HAD TWO LOADS OF LIQUOR IN AUTOMOBILES OF
PARTICULAR MAKE AND DESCRIPTION PARKED AT DESCRIBED LOCATIONS.  THE
OFFICERS FOUND ONE OF THE CARS PARKED AND UNATTENDED AT THE INDICATED
SPOT.  LATER, AS OFFICERS WATCHED, HUSTY AND OTHERS ENTERED AND STARTED
TO DRIVE AWAY.  THE CAR WAS STOPPED AFTER HAVING MOVED NO MORE THAN A
FOOT OR TWO; IMMEDIATE SEARCH OF THE CAR PRODUCED CONTRABAND.  HUSTY
WAS THEN ARRESTED.  THE COURT, IN A UNANIMOUS OPINION, SUSTAINED DENIAL
OF A MOTION TO SUPPRESS THE FRUITS OF THE SEARCH, SAYING THAT "(THE
FOURTH AMENDMENT DOES NOT PROHIBIT THE SEARCH, WITHOUT WARRANT, OF AN
AUTOMOBILE, FOR LIQUOR ILLEGALLY TRANSPORTED OR POSSESSED, IF THE
SEARCH IS UPON PROBABLE CAUSE . . . " ID., AT 700.  FURTHER, "(THE
SEARCH WAS NOT UNREASONABLE BECAUSE, AS PETITIONERS ARGUE, SUFFICIENT
TIME ELAPSED BETWEEN THE RECEIPT BY THE OFFICER OF THE INFORMATION AND
THE SEARCH OF THE CAR TO HAVE ENABLED HIM TO PROCURE A SEARCH WARRANT. 
HE COULD NOT KNOW WHEN HUSTY WOULD COME TO THE CAR OR HOW SOON IT WOULD
BE REMOVED.  IN SUCH CIRCUMSTANCES WE DO NOT THINK THE OFFICERS SHOULD
BE REQUIRED TO SPECULATE UPON THE CHANCES OF SUCCESSFULLY CARRYING OUT
THE SEARCH, AFTER THE DELAY AND WITHDRAWAL FROM THE SCENE OF ONE OR
MORE OFFICERS WHICH WOULD HAVE BEEN NECESSARY TO PROCURE A WARRANT. 
THE SEARCH WAS, THEREFORE, ON PROBABLE CAUSE, AND NOT UNREASONABLE . .
. " ID., AT 701. 

THE COURT APPARENTLY CITES HUSTY WITH APPROVAL AS INVOLVING A CAR IN
MOTION ON THE HIGHWAY.  BUT IT WAS OBVIOUSLY IRRELEVANT TO THE COURT
THAT THE OFFICERS COULD HAVE OBTAINED A WARRANT BEFORE HUSTY ATTEMPTED
TO DRIVE THE CAR AWAY.  EQUALLY IMMATERIAL WAS THE FACT THAT THE CAR
HAD MOVED ONE OR TWO FEET AT THE TIME IT WAS STOPPED.  THE SEARCH WOULD
HAVE BEEN APPROVED EVEN IF IT HAD OCCURRED BEFORE HUSTY'S ARRIVAL OR
AFTER HIS ARRIVAL BUT BEFORE HE HAD PUT THE CAR IN MOTION.  THE COURT'S
ATTEMPT TO DISTINGUISH HUSTY ON THE BASIS OF THE CAR'S NEGLIGIBLE
MOVEMENT PRIOR TO ITS BEING STOPPED IS WITHOUT FORCE. 

THE COURT STATES FLATLY, HOWEVER, THAT THIS CASE IS NOT RULED BY THE
CARROLL-CHAMBERS LINE OF CASES BUT BY DYKE V. TAYLOR IMPLEMENT MFG.
CO., 391 U.S. 216 (1968).  THERE THE CAR WAS PROPERLY STOPPED AND THE
OCCUPANTS ARRESTED FOR RECKLESS DRIVING, BUT THE SUBSEQUENT SEARCH AT
THE STATION HOUSE COULD NOT BE JUSTIFIED AS INCIDENT TO THE ARREST. 
SEE PRESTON V. UNITED STATES 376 U.S. 364 (1964).  NOR COULD THE CAR
ITSELF BE SEIZED AND LATER SEARCHED, AS IT WAS, ABSENT PROBABLE CAUSE
TO BELIEVE IT CONTAINED EVIDENCE OF CRIME.  IN DYKE, IT WAS POINTED OUT
THAT PROBABLE CAUSE DID NOT EXIST AT THE TIME OF THE SEARCH, AND WE
EXPRESSLY RESTED OUR HOLDING ON THIS FACT, NOTING THAT "(SINCE THE
SEARCH WAS NOT SHOWN TO HAVE BEEN BASED UPON SUFFICIENT CAUSE," IT WAS
NOT NECESSARY TO REACH OTHER GROUNDS URGED FOR INVALIDATING IT.  391
U.S.,AT 222.  GIVEN PROBABLE CAUSE, HOWEVER, WE WOULD HAVE UPHELD THE
SEARCH IN DYKE.     FOR FOURTH AMENDMENT PURPOSES, THE DIFFERENCE
BETWEEN A MOVING AND MOVABLE VEHICLE IS TENUOUS AT BEST.  IT IS A
METAPHYSICAL DISTINCTION WITHOUT ROOTS IN THE COMMONSENSE STANDARD OF
REASONABLENESS GOVERNING SEARCH AND SEIZURE CASES.  DISTINGUISHING THE
CASE BEFORE US FROM THE CARROLL-CHAMBERS LINE OF CASES FURTHER ENMESHES
FOURTH AMENDMENT LAW IN LITIGATION BREEDING REFINEMENTS HAVING LITTLE
RELATION TO REALITY.  I SUGGEST THAT IN THE INTEREST OF COHERENCE AND
CREDIBILITY WE EITHER OVERRULE OUR PRIOR CASES AND TREAT AUTOMOBILES
PRECISELY AS WE DO HOUSES OR APPLY THOSE CASES TO READILY MOVABLE AS
WELL AS MOVING VEHICLES AND THUS TREAT SEARCHES OF AUTOMOBILES AS WE DO
THE ARREST OF A PERSON.  BY EITHER COURSE WE MIGHT BRING SOME MODICUM
OF CERTAINTY TO FOURTH AMENDMENT LAW AND GIVE THE LAW ENFORCEMENT
OFFICERS SOME SLIGHT GUIDANCE IN HOW THEY ARE TO CONDUCT THEMSELVES. 

I ACCORDINGLY DISSENT FROM PARTS II-B, II-C, AND II-D OF THE COURT'S
OPINION.  I CONCUR, HOWEVER, IN THE RESULT REACHED IN PART III OF THE
OPINION.  I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE NEW HAMPSHIRE
SUPREME COURT. 

/1/  THIS WAS THE COMMON-LAW RULE.  1 J.STEPHEN, A HISTORY OF
CRIMINAL LAW OF ENGLAND 193 (1883); 2 M.HALE, HISTORIA PLACITORUM
CORONAE 72-104 (NEW ED. 1800).  IT IS ALSO THE CONSTITUTIONAL RULE.  IN
CARROLL V. UNITED STATES, 267 U.S. 132 (1925), THE COURT SAID THAT
"(THE USUAL RULE IS THAT A POLICE OFFICER MAY ARREST WITHOUT WARRANT
ONE BELIEVED BY THE OFFICER UPON REASONABLE CAUSE TO HAVE BEEN GUILTY
OF A FELONY . . . " ID., AT 156.  THERE IN SEPTEMBER 1921, OFFICERS HAD
PROBABLE CAUSE TO BELIEVE THE TWO DEFENDANTS WERE UNLAWFULLY
TRANSPORTING BOOTLEG LIQUOR, BUT THEY HAD NEITHER EFFECTED AN IMMEDIATE
ARREST NOR SOUGHT A WARRANT.  SEVERAL MONTHS LATER THEY OBSERVED THE
TWO MEN DRIVING ON A PUBLIC HIGHWAY, STOPPED, AND SEARCHED THE CAR AND
ARRESTED THE MEN, AND THIS COURT SUSTAINED BOTH THE SEARCH AND THE
ARREST.  SO ALSO IN TRUPIANO V. UNITED STATES, 334 U.S. 699 (1948),
OFFICERS WERE AMPLY FOREWARNED OF CRIMINAL ACTIVITIES AND HAD TIME TO
SEEK A WARRANT BUT DID NOT DO SO.  INSTEAD, SOME TIME LATER THEY
ENTERED ON PROPERTY WHERE TRUPIANO HAD A STILL AND FOUND EXACTLY WHAT
THEY EXPECTED TO FIND-- ONE OF THE DEFENDANTS ENGAGED IN THE
DISTILLATION OF BOOTLEG LIQUOR.  HIS ARREST WITHOUT A WARRANT WAS
SUSTAINED, THE COURT SAYING THAT "(THE ABSENCE OF A WARRANT OF ARREST,
EVEN THOUGH THERE WAS SUFFICIENT TIME TO OBTAIN ONE, (DID) NOT DESTROY
THE VALIDITY OF AN ARREST" IN THE CIRCUMSTANCES OF THE CASE.  ID., AT
705. 

THE JUDGMENT OF CONGRESS ALSO IS THAT FEDERAL LAW ENFORCEMENT
OFFICERS MAY REASONABLY MAKE WARRANTLESS ARRESTS UPON PROBABLE CAUSE. 
IT HAS AUTHORIZED SUCH ARRESTS BY UNITED STATES MARSHALS, AGENTS OF THE
FEDERAL BUREAU OF INVESTIGATION AND OF THE SECRET SERVICE, AND
NARCOTICS LAW ENFORCEMENT OFFICERS.  SEE ACT OF JUNE 15, 1935, SEC. 2,
49 STAT. 378, AS AMENDED, 18 U.S.C. 3053; ACT OF JUNE 18, 1934, 48
STAT. 1008, AS AMENDED, 18 U.S.C. 3052; ACT OF SEPT. 29, 1965, 79 STAT.
890, AS AMENDED, 18 U.S.C. 3056 (1964 ED.,SUPP.  V); ACT OF JULY 18,
1956, TIT. I, SEC. 104(A), 70 STAT. 570, AS AMENDED, 26 U.S.C.
7607(2).  AND, IN 1951, CONGRESS EXPRESSLY DELETED FROM THE AUTHORITY
TO MAKE WARRANTLESS ARRESTS A PRE-EXISTING STATUTORY RESTRICTION
BARRING THEM IN THE ABSENCE OF A LIKELIHOOD THAT THE PERSON WOULD
ESCAPE BEFORE A WARRANT COULD BE OBTAINED.  SEE ACT OF JAN. 10, 1951,
SEC. 1, 64 STAT. 1239; S. REP. NO. 2464, 81ST CONG.,2D SESS., 2 (1950);
H.R. REP. NO. 3228, 81ST CONG.,2D SESS., 2 (1950); CHIMEL V.
CALIFORNIA, 395 U.S. 752, 776-780 (1969) (DISSENTING OPINION). 

THE MAJORITY NOW SUGGESTS THAT WARRANTLESS, PROBABLE-CAUSE ARRESTS
MAY NOT BE MADE IN THE HOME ABSENT EXIGENT CIRCUMSTANCES.  JONES V.
UNITED STATES, 357 U.S. 493 (1958), INVALIDATED A FORCIBLE NIGHTTIME
ENTRY TO EFFECT A SEARCH WITHOUT A WARRANT AND SUGGESTED ALSO THAT THE
PARTICULAR CIRCUMSTANCES OF THE ENTRY WOULD HAVE POSED A SERIOUS FOURTH
AMENDMENT ISSUE IF THE PURPOSE OF THE ENTRY HAD BEEN TO MAKE AN
ARREST.  BUT, AS A CONSTITUTIONAL MATTER, THE COURT HAS NEVER HELD OR
INTIMATED THAT ALL PROBABLE-CAUSE ARRESTS WITHOUT A WARRANT IN THE HOME
MUST BE JUSTIFIED BY EXIGENT CIRCUMSTANCES OTHER THAN THE NECESSITY FOR
ARRESTING A FELON, OR THAT, IF THE ELAPSED TIME BETWEEN THE ACCRUAL OF
PROBABLE CAUSE AND THE MAKING OF THE ARREST PROVES SUFFICIENT TO HAVE
OBTAINED A WARRANT, THE ARREST IS INVALID.  ON THE CONTRARY, MANY CASES
IN THIS COURT HAVE PROCEEDED ON THE ASSUMPTION THAT ORDINARILY
WARRANTLESS ARRESTS ON PROBABLE CAUSE MAY BE EFFECTED EVEN IN THE
HOME.  SEE SABBATH V. UNITED STATES, 391 U.S. 585 (1968); MILLER V.
UNITED STATES, 357 U.S. 301, 305-308 (1958); UNITED STATES V.
RABINOWITZ, 339 U.S. 56, 60 (1950) (DICTUM); TRUPIANO V. UNITED STATES,
SUPRA; JOHNSON V. UNITED STATES, 333 U.S. 10, 15 (1948) (DICTUM).  OF
COURSE, THIS IS NOT TO SAY THAT THE TIME AND METHOD OF ENTRY COULD
NEVER POSE SERIOUS CONSTITUTIONAL QUESTIONS UNDER THE FOURTH
AMENDMENT. 

/2/  LEE PERMITTED THE REVENUE OFFICERS WHO SEIZED THE BOAT TO TAKE
AND CHEMICALLY ANALYZE BOOTLEG LIQUOR FOUND ABOARD IT AND THEN TO
TESTIFY AS TO THE RESULTS OF THEIR ANALYSIS. 

ARCHIBALD COX, BY APPOINTMENT OF THE COURT, 400 U.S. 814, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE MATTHIAS J.
REYNOLDS, JOHN A. GRAF, AND ROBERT L. CHIESA. 

ALEXANDER J. KALINSKI ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS WARREN B. RUDMAN, ATTORNEY GENERAL OF NEW HAMPSHIRE. 
..END :




















MCKEIVER V. PENNSYLVANIA, 403 U.S. 528 


       MCKEIVER ET AL. V. PENNSYLVANIA

        APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA

        NO. 322.  ARGUED DECEMBER 10, 1970-- DECIDED JUNE 21, 1971

/0/ 


THE REQUESTS OF APPELLANTS IN NO. 322 FOR A JURY TRIAL WERE DENIED,
AND THEY WERE ADJUDGED JUVENILE DELINQUENTS UNDER PENNSYLVANIA LAW. 
THE STATE SUPREME COURT, WHILE RECOGNIZING THE APPLICABILITY TO
JUNENILES OF CERTAIN DUE PROCESS PROCEDURAL SAFEGUARDS, HELD THAT THERE
IS NO CONSTITUTIONAL RIGHT TO A JURY TRIAL IN JUVENILE COURT. 
APPELLANTS ARGUE FOR A RIGHT TO A JURY TRIAL BECAUSE THEY WERE TRIED IN
PROCEEDINGS "SUBSTANTIALLY SIMILAR TO A CRIMINAL TRIAL," AND NOTE THAT
THE PRESS IS GENERALLY PRESENT AT THE TRIAL AND THAT MEMBERS OF THE
PUBLIC ALSO ENTER THE COURTROOM.  PETITIONERS IN NO. 128 WERE ADJUDGED
JUVENILE DELINQUENTS IN NORTH CAROLINA, WHERE THEIR JURY TRIAL REQUESTS
WERE DENIED AND IN PROCEEDINGS WHERE THE GENERAL PUBLIC WERE EXCLUDED. 
HELD:  A TRIAL BY JURY IS NOT CONSTITUTIONALLY REQUIRED IN THE
ADJUDICATIVE PHASE OF A STATE JUVENILE COURT DELINQUENCY PROCEEDING. 
PP. 540-551, 553-556. 

NO. 322, 438 PA. 339, 265 A.2D 350, AND NO. 128, 275 N.C. 517, 169
S.E.2D 879, AFFIRMED. 

MR. JUSTICE BLACKMUN, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE
STEWART, AND MR. JUSTICE WHITE, CONCLUDED THAT: 

1.  THE APPLICABLE DUE PROCESS STANDARD IN JUVENILE PROCEEDINGS IS
FUNDAMENTAL FAIRNESS, AS DEVELOPED BY IN RE GAULT, 387 U.S. 1, AND IN
RE WINSHIP, 397 U.S. 358, WHICH EMPHASIZED FACTFINDING PROCEDURES, BUT
IN OUR LEGAL SYSTEM THE JURY IS NOT A NECESSARY COMPONENT OF ACCURATE
FACTFINDING.  P. 543. 

2.  DESPITE DISAPPOINTMENTS, FAILURES, AND SHORTCOMINGS IN THE
JUVENILE COURT PROCEDURE, A JURY TRIAL IS NOT CONSTITUTIONALLY REQUIRED
IN A JUVENILE COURT'S ADJUDICATIVE STAGE.  PP. 545-550. 

(A) THE COURT HAS NOT HERETOFORE RULED THAT ALL RIGHTS
CONSTITUTIONALLY ASSURED TO AN ADULT ACCUSED ARE TO BE IMPOSED IN A
JUVENILE PROCEEDING.  P. 545. 

(B) COMPELLING A JURY TRIAL MIGHT REMAKE THE PROCEEDING INTO A FULLY
ADVERSARY PROCESS AND EFFECTIVELY END THE IDEALISTIC PROSPECT OF AN
INTIMATE, INFORMAL PROTECTIVE PROCEEDING.  P. 545. 

(C) IMPOSING A JURY TRIAL ON THE JUVENILE COURT SYSTEM WOULD NOT
REMEDY THE SYSTEM'S DEFECTS AND WOULD NOT GREATLY STRENGTHEN THE
FACTFINDING FUNCTION.  P. 547. 

(D) THE STATES SHOULD BE FREE TO EXPERIMENT TO ACHIEVE THE HIGH
PROMISE OF THE JUVENILE COURT CONCEPT, AND THEY MAY INSTALL A JURY
SYSTEM; OR A JUVENILE COURT JUDGE MAY USE AN ADVISORY JURY IN A
PARTICULAR CASE.  P. 547. 

(E) MANY STATES BY STATUTE OR JUDICIAL DECISION DENY A JUVENILE A
RIGHT TO JURY TRIAL, AND THE GREAT MAJORITY THAT HAVE FACED THAT ISSUE
SINCE GAULT, SUPRA, AND DUNCAN V. LOUISIANA, 391 U.S. 145, HAVE
CONCLUDED THAT THE CONSIDERATIONS INVOLVED IN THOSE CASES DO NOT COMPEL
TRIAL BY JURY IN JUVENILE COURT.  PP. 548-549. 

(F) JURY TRIAL WOULD ENTAIL DELAY, FORMALITY, AND CLAMOR OF THE
ADVERSARY SYSTEM, AND POSSIBLY A PUBLIC TRIAL.  P. 550. 

(G) EQUATING THE ADJUDICATIVE PHASE OF THE JUVENILE PROCEEDING WITH
A CRIMINAL TRIAL IGNORES THE ASPECTS OF FAIRNESS, CONCERN, SYMPATHY,
AND PATERNAL ATTENTION INHERENT IN THE JUVENILE COURT SYSTEM.  P. 550. 

MR. JUSTICE BRENNAN CONCLUDED THAT: 

DUE PROCESS IN JUVENILE DELINQUENCY PROCEEDINGS, WHICH ARE NOT
"CRIMINAL PROSECUTIONS," DOES NOT REQUIRE THE STATES TO PROVIDE JURY
TRIALS ON DEMAND SO LONG AS SOME OTHER ASPECT OF THE PROCESS ADEQUATELY
PROTECTS THE INTERESTS THAT SIXTH AMENDMENT JURY TRIALS ARE INTENDED TO
SERVE.  IN THE JUVENILE CONTEXT, THOSE INTERESTS MAY BE ADEQUATELY
PROTECTED BY ALLOWING ACCUSED INDIVIDUALS TO BRING THE COMMUNITY'S
ATTENTION TO BEAR UPON THEIR TRIALS.  SINCE PENNSYLVANIA HAS NO
STATUTORY BAR TO PUBLIC JUVENILE TRIALS, AND SINCE NO CLAIM IS MADE
THAT MEMBERS OF THE PUBLIC WERE EXCLUDED OVER APPELLANTS' OBJECTIONS,
THE JUDGMENT IN NO. 322 SHOULD BE AFFIRMED.  PP. 553-556. 

MR. JUSTICE HARLAN CONCURRED IN THE JUDGMENTS IN THESE CASES ON THE
GROUND THAT CRIMINAL JURY TRIALS ARE NOT CONSTITUTIONALLY REQUIRED OF
THE STATES, EITHER BY THE SIXTH AMENDMENT OR BY DUE PROCESS.  P. 557. 

BLACKMUN, J., ANNOUNCED THE COURT'S JUDGMENTS AND DELIVERED AN
OPINION IN WHICH BURGER, C. J., AND STEWART AND WHITE, JJ., JOINED. 
WHITE, J., FILED A CONCURRING OPINION, POST, P. 551.  BRENNAN, J.,
FILED AN OPINION CONCURRING IN THE JUDGMENT IN NO. 322 AND DISSENTING
IN NO. 128, POST, P. 553.  HARLAN, J., FILED A DISSENTING OPINION, IN
WHICH BLACK AND MARSHALL, JJ., JOINED, POST, P. 557. 

MR. JUSTICE BLACKMUN ANNOUNCED THE JUDGMENTS OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE STEWART, AND MR.
JUSTICE WHITE JOIN. 

THESE CASES PRESENT THE NARROW BUT PRECISE ISSUE WHETHER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ASSURES THE RIGHT TO TRIAL
BY JURY IN THE ADJUDICATIVE PHASE OF A STATE JUVENILE COURT DELINQUENCY
PROCEEDING. 

        I 

THE ISSUE ARISES UNDERSTANDABLY, FOR THE COURT IN A SERIES OF CASES
ALREADY HAS EMPHASIZED DUE PROCESS FACTORS PROTECTIVE OF THE JUVENILE: 

1.  HALEY V. OHIO, 332 U.S. 596 (1948), CONCERNED THE ADMISSIBILITY
OF A CONFESSION TAKEN FROM A 15-YEAR-OLD BOY ON TRIAL FOR FIRST-DEGREE
MURDER.  IT WAS HELD THAT, UPON THE FACTS THERE DEVELOPED, THE DUE
PROCESS CLAUSE BARRED THE USE OF THE CONFESSION.  MR. JUSTICE DOUGLAS,
IN AN OPINION IN WHICH THREE OTHER JUSTICES JOINED, SAID, "NEITHER MAN
NOR CHILD CAN BE ALLOWED TO STAND CONDEMNED BY METHODS WHICH FLOUT
CONSTITUTIONAL REQUIREMENTS OF DUE PROCESS OF LAW."  332 U.S.,AT 601. 

2.  GALLEGOS V. COLORADO, 370 U.S. 49 (1962), WHERE A 14-YEAR-OLD
WAS ON TRIAL, IS TO THE SAME EFFECT. 

3.  KENT V. UNITED STATES, 383 U.S. 541 (1966), CONCERNED A 16-YEAR
OLD CHARGED WITH HOUSEBREAKING, ROBBERY, AND RAPE IN THE DISTRICT OF
COLUMBIA.  THE ISSUE WAS THE PROPRIETY OF THE JUVENILE COURT'S WAIVER
OF JURISDICTION "AFTER FULL INVESTIGATION," AS PERMITTED BY THE
APPLICABLE STATUTE.  IT WAS EMPHASIZED THAT THE LATITUDE THE COURT
POSSESSED WITHIN WHICH TO DETERMINE WHETHER IT SHOULD RETAIN OR WAIVE
JURISDICTION "ASSUMES PROCEDURAL REGULARITY SUFFICIENT IN THE
PARTICULAR CIRCUMSTANCES TO SATISFY THE BASIC REQUIREMENTS OF DUE
PROCESS AND FAIRNESS, AS WELL AS COMPLIANCE WITH THE STATUTORY
REQUIREMENT OF A 'FULL INVESTIGATION.'"  383 U.S.,AT 553. 

4.  IN RE GAULT, 387 U.S. 1 (1967), CONCERNED A 15-YEAR-OLD, ALREADY
ON PROBATION, COMMITTED IN ARIZONA AS A DELINQUENT AFTER BEING
APPREHENDED UPON A COMPLAINT OF LEWD REMARKS BY TELEPHONE.  MR. JUSTICE
FORTAS, IN WRITING FOR THE COURT, REVIEWED THE CASES JUST CITED AND
OBSERVED, 

"ACCORDINGLY, WHILE THESE CASES RELATE ONLY TO RESTRICTED ASPECTS OF
THE SUBJECT, THEY UNMISTAKABLY INDICATE THAT, WHATEVER MAY BE THEIR
PRECISE IMPACT, NEITHER THE FOURTEENTH AMENDMENT NOR THE BILL OF RIGHTS
IS FOR ADULTS ALONE."  387 U.S.,AT 13. 

THE COURT FOCUSED ON "THE PROCEEDINGS BY WHICH A DETERMINATION IS
MADE AS TO WHETHER A JUVENILE IS A 'DELINQUENT' AS A RESULT OF ALLEGED
MISCONDUCT ON HIS PART, WITH THE CONSEQUENCE THAT HE MAY BE COMMITTED
TO A STATE INSTITUTION" AND, AS TO THIS, SAID THAT "THERE APPEARS TO BE
LITTLE CURRENT DISSENT FROM THE PROPOSITION THAT THE DUE PROCESS CLAUSE
HAS A ROLE TO PLAY."  IBID. KENT WAS ADHERED TO:  "WE REITERATE THIS
VIEW, HERE IN CONNECTION WITH A JUVENILE COURT ADJUDICATION OF
'DELINQUENCY,' AS A REQUIREMENT WHICH IS PART OF THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT OF OUR CONSTITUTION."  ID., AT 30-31.  DUE
PROCESS, IN THAT PROCEEDING, WAS HELD TO EMBRACE ADEQUATE WRITTEN
NOTICE; ADVICE AS TO THE RIGHT TO COUNSEL, RETAINED OR APPOINTED;
CONFRONTATION; AND CROSS-EXAMINATION.  THE PRIVILEGE AGAINST SELF
INCRIMINATION WAS ALSO HELD AVAILABLE TO THE JUVENILE.  THE COURT
REFRAINED FROM DECIDING WHETHER A STATE MUST PROVIDE APPELLATE REVIEW
IN JUVENILE CASES OR A TRANSCRIPT OR RECORDING OF THE HEARINGS. 

5.  DEBACKER V. BRAINARD, 396 U.S. 28 (1969), PRESENTED, BY STATE
HABEAS CORPUS, A CHALLENGE TO A NEBRASKA STATUTE PROVIDING THAT
JUVENILE COURT HEARINGS "SHALL BE CONDUCTED BY THE JUDGE WITHOUT A JURY
IN AN INFORMAL MANNER."  HOWEVER, BECAUSE THAT APPELLANT'S HEARING HAD
ANTEDATED THE DECISIONS IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968),
AND BLOOM V. ILLINOIS, 391 U.S. 194 (1968), AND BECAUSE DUNCAN AND
BLOOM HAD BEEN GIVEN ONLY PROSPECTIVE APPLICATION BY DESTEFANO V.
WOODS, 392 U.S. 631 (1968), DEBACKER'S CASE WAS DEEMED AN INAPPROPRIATE
ONE FOR RESOLUTION OF THE JURY TRIAL ISSUE.  HIS APPEAL WAS THEREFORE
DISMISSED.  MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, IN SEPARATE
DISSENTS, TOOK THE POSITION THAT A JUVENILE IS ENTITLED TO A JURY TRIAL
AT THE ADJUDICATIVE STAGE.  MR. JUSTICE BLACK DESCRIBED THIS AS "A
RIGHT WHICH IS SURELY ONE OF THE FUNDAMENTAL ASPECTS OF CRIMINAL
JUSTICE IN THE ENGLISH-SPEAKING WORLD,"  396 U.S.,AT 34, AND MR.
JUSTICE DOUGLAS DESCRIBED IT AS A RIGHT REQUIRED BY THE SIXTH AND
FOURTEENTH AMENDMENTS "WHERE THE DELINQUENCY CHARGED IS AN OFFENSE
THAT, IF THE PERSON WERE AN ADULT, WOULD BE A CRIME TRIABLE BY JURY." 
396 U.S.,AT 35. 

6.  IN RE WINSHIP, 397 U.S. 358 (1970), CONCERNED A 12-YEAR-OLD
CHARGED WITH DELINQUENCY FOR HAVING TAKEN MONEY FROM A WOMAN'S PURSE. 
THE COURT HELD THAT "THE DUE PROCESS CLAUSE PROTECTS THE ACCUSED
AGAINST CONVICTION EXCEPT UPON PROOF BEYOND A REASONABLE DOUBT OF EVERY
FACT NECESSARY TO CONSTITUTE THE CRIME WITH WHICH HE IS CHARGED," 397
U.S.,AT 364, AND THEN WENT ON TO HOLD, AT 368, THAT THIS STANDARD WAS
APPLICABLE, TOO, "DURING THE ADJUDICATORY STAGE OF A DELINQUENCY
PROCEEDING." 

FROM THESE SIX CASES-- HALEY, GALLEGOS, KENT, GAULT, DEBACKER, AND
WINSHIP-- IT IS APPARENT THAT:

1.  SOME OF THE CONSTITUTIONAL REQUIREMENTS ATTENDANT UPON THE STATE
CRIMINAL TRIAL HAVE EQUAL APPLICATION TO THAT PART OF THE STATE
JUVENILE PROCEEDING THAT IS ADJUDICATIVE IN NATURE.  AMONG THESE ARE
THE RIGHTS TO APPROPRIATE NOTICE, TO COUNSEL, TO CONFRONTATION AND TO
CROSS-EXAMINATION, AND THE PRIVILEGE AGAINST SELF-INCRIMINATION. 
INCLUDED, ALSO, IS THE STANDARD OF PROOF BEYOND A REASONABLE DOUBT. 

2.  THE COURT, HOWEVER, HAS NOT YET SAID THAT ALL RIGHTS
CONSTITUTIONALLY ASSURED TO AN ADULT ACCUSED OF CRIME ALSO ARE TO BE
ENFORCED OR MADE AVAILABLE TO THE JUVENILE IN HIS DELINQUENCY
PROCEEDING.  INDEED, THE COURT SPECIFICALLY HAS REFRAINED FROM GOING
THAT FAR: 

     "WE DO NOT MEAN BY THIS TO INDICATE THAT THE HEARING TO BE
HELD

  MUST CONFORM WITH ALL OF THE REQUIREMENTS OF A CRIMINAL TRIAL OR

  EVEN OF THE USUAL ADMINISTRATIVE HEARING; BUT WE DO HOLD THAT THE

HEARING MUST MEASURE UP TO THE ESSENTIALS OF DUE PROCESS AND FAIR

  TREATMENT."  KENT, 383 U.S.,AT 562; GAULT, 387 U.S.,AT 30. 

3.  THE COURT, ALTHOUGH RECOGNIZING THE HIGH HOPES AND ASPIRATIONS
OF JUDGE JULIAN MACK, THE LEADERS OF THE JANE ADDAMS SCHOOL /1/  AND
THE OTHER SUPPORTERS OF THE JUVENILE COURT CONCEPT, HAS ALSO NOTED THE
DISAPPOINTMENTS OF THE SYSTEM'S PERFORMANCE AND EXPERIENCE AND THE
RESULTING WIDESPREAD DISAFFECTION.  KENT, 383 U.S.,AT 555-556; GAULT,
387 U.S.,AT 17-19.  THERE HAVE BEEN, AT ONE AND THE SAME TIME, BOTH AN
APPRECIATION FOR THE JUVENILE COURT JUDGE WHO IS DEVOTED, SYMPATHETIC,
AND CONSCIENTIOUS, AND A DISTURBED CONCERN ABOUT THE JUDGE WHO IS
UNTRAINED AND LESS THAN FULLY IMBUED WITH AN UNDERSTANDING APPROACH TO
THE COMPLEX PROBLEMS OF CHILDHOOD AND ADOLESCENCE.  THERE HAS BEEN
PRAISE FOR THE SYSTEM AND ITS PURPOSES, AND THERE HAS BEEN ALARM OVER
ITS DEFECTS. 

4.  THE COURT HAS INSISTED THAT THESE SUCCESSIVE DECISIONS DO NOT
SPELL THE DOOM OF THE JUVENILE COURT SYSTEM OR EVEN DEPRIVE IT OF ITS
"INFORMALITY, FLEXIBILITY, OR SPEED."  WINSHIP, 397 U.S.,AT 366.  ON
THE OTHER HAND, A CONCERN PRECISELY TO THE OPPOSITE EFFECT WAS
EXPRESSED BY TWO DISSENTERS IN WINSHIP.  ID., AT 375-376. 

        II 

WITH THIS SUBSTANTIAL BACKGROUND ALREADY DEVELOPED, WE TURN TO THE
FACTS OF THE PRESENT CASE: 

NO. 322.  JOSEPH MCKEIVER, THEN AGE 16, IN MAY 1968 WAS CHARGED WITH
ROBBERY, LARCENY, AND RECEIVING STOLEN GOODS (FELONIES UNDER
PENNSYLVANIA LAW, PA. STAT. ANN., TIT. 18, SECS. 4704, AND 4817 (1963)
AS ACTS OF JUVENILE DELINQUENCY.  AT THE TIME OF THE ADJUDICATION
HEARING HE WAS REPRESENTED BY COUNSEL.  /2/  HIS REQUEST FOR A JURY
TRIAL WAS DENIED AND HIS CASE WAS HEARD BY JUDGE THEODORE S. GUTOWICZ
OF THE COURT OF COMMON PLEAS, FAMILY DIVISION, JUVENILE BRANCH, OF
PHILADELPHIA COUNTY, PENNSYLVANIA.  MCKEIVER WAS ADJUDGED A DELINQUENT
UPON FINDINGS THAT HE HAD VIOLATED A LAW OF THE COMMONWEALTH.  PA.
STAT. ANN., TIT. 11, SEC. 243(4)(A) (1965).  HE WAS PLACED ON
PROBATION.  ON APPEAL, THE SUPERIOR COURT AFFIRMED WITHOUT OPINION.  IN
RE MCKEIVER, 215 PA.SUPER.  760, 244 A.2D 921 (1969). 

EDWARD TERRY, THEN AGE 15, IN JANUARY 1969 WAS CHARGED WITH ASSAULT
AND BATTERY ON A POLICE OFFICER AND CONSPIRACY (MISDEMEANORS UNDER
PENNSYLVANIA LAW, PA. STAT. ANN., TIT. 18, SECS. 4708 AND 4302 (1963)
AS ACTS OF JUVENILE DELINQUENCY.  HIS COUNSEL'S REQUEST FOR A JURY
TRIAL WAS DENIED AND HIS CASE WAS HEARD BY JUDGE JOSEPH C. BRUNO OF THE
SAME JUVENILE BRANCH OF THE COURT OF COMMON PLEAS OF PHILADELPHIA
COUNTY.  TERRY WAS ADJUDGED A DELINQUENT ON THE CHARGES.  THIS FOLLOWED
AN ADJUDICATION AND COMMITMENT IN THE PRECEDING WEEK FOR AN ASSAULT ON
A TEACHER.  HE WAS COMMITTED, AS HE HAD BEEN ON THE EARLIER CHARGE, TO
THE YOUTH DEVELOPMENT CENTER AT CORNWELLS HEIGHTS.  ON APPEAL, THE
SUPERIOR COURT AFFIRMED WITHOUT OPINION.  IN RE TERRY, 215 PA.SUPER. 
762, 255 A.2D 922 (1969). 

THE SUPREME COURT OF PENNSYLVANIA GRANTED LEAVE TO APPEAL IN BOTH
CASES AND CONSOLIDATED THEM.  THE SINGLE QUESTION CONSIDERED, AS
PHRASED BY THE COURT, WAS "WHETHER THERE IS A CONSTITUTIONAL RIGHT TO A
JURY TRIAL IN JUVENILE COURT."  THE ANSWER, ONE JUSTICE DISSENTING, WAS
IN THE NEGATIVE.  IN RE TERRY, 438 PA. 339, 265 A.2D 350 (1970).  WE
NOTED PROBABLE JURISDICTION.  399 U.S. 925 (1970). 

THE DETAILS OF THE MCKEIVER AND TERRY OFFENSES ARE SET FORTH IN
JUSTICE ROBERTS' OPINION FOR THE PENNSYLVANIA COURT, 438 PA.,AT 341
342, NN. 1 AND 2, 265 A.2D, AT 351 NN. 1 AND 2, AND NEED NOT BE
REPEATED AT ANY LENGTH HERE.  IT SUFFICES TO SAY THAT MCKEIVER'S
OFFENSE WAS HIS PARTICIPATING WITH 20 OR 30 YOUTHS WHO PURSUED THREE
YOUNG TEENAGERS AND TOOK 25 CENTS FROM THEM; THAT MCKEIVER NEVER BEFORE
HAD BEEN ARRESTED AND HAD A RECORD OF GAINFUL EMPLOYMENT; THAT THE
TESTIMONY OF TWO OF THE VICTIMS WAS DESCRIBED BY THE COURT AS SOMEWHAT
INCONSISTENT AND AS "WEAK"; AND THAT TERRY'S OFFENSE CONSISTED OF
HITTING A POLICE OFFICER WITH HIS FISTS AND WITH A STICK WHEN THE
OFFICER BROKE UP A BOYS' FIGHT TERRY AND OTHERS WERE WATCHING. 

NO. 128.  BARBARA BURRUS AND APPROXIMATELY 45 OTHER BLACK CHILDREN,
RANGING IN AGE FROM 11 TO 15 YEARS, /3/  WERE THE SUBJECTS OF JUVENILE
COURT SUMMONSES ISSUED IN HYDE COUNTY, NORTH CAROLINA, IN JANUARY
1969. 

THE CHARGES AROSE OUT OF A SERIES OF DEMONSTRATIONS IN THE COUNTY IN
LATE 1968 BY BLACK ADULTS AND CHILDREN PROTESTING SCHOOL ASSIGNMENTS
AND A SCHOOL CONSOLIDATION PLAN.  PETITIONS WERE FILED BY NORTH
CAROLINA STATE HIGHWAY PATROLMEN.  EXCEPT FOR ONE RELATING TO JAMES
LAMBERT HOWARD, THE PETITIONS CHARGED THE RESPECTIVE JUVENILES WITH
WILFULLY IMPEDING TRAFFIC.  THE CHARGE AGAINST HOWARD WAS THAT HE
WILFULLY MADE RIOTOUS NOISE AND WAS DISORDERLY IN THE O. A. PEAY SCHOOL
IN SWAN QUARTER; INTERRUPTED AND DISTURBED THE SCHOOL DURING ITS
REGULAR SESSIONS; AND DEFACED SCHOOL FURNITURE.  THE ACTS SO CHARGED
ARE MISDEMEANORS UNDER NORTH CAROLINA LAW.  N.C. GEN. STAT. SECS. 20
174.1 (1965 AND SUPP. 1969), 14-132(A), 14-273 (1969). 

THE SEVERAL CASES WERE CONSOLIDATED INTO GROUPS FOR HEARING BEFORE
DISTRICT JUDGE HALLETT S. WARD, SITTING AS A JUVENILE COURT.  THE SAME
LAWYER APPEARED FOR ALL THE JUVENILES.  OVER COUNSEL'S OBJECTION, MADE
IN ALL EXCEPT TWO OF THE CASES, THE GENERAL PUBLIC WAS EXCLUDED.  A
REQUEST FOR A JURY TRIAL IN EACH CASE WAS DENIED. 

THE EVIDENCE AS TO THE JUVENILES OTHER THAN HOWARD CONSISTED SOLELY
OF TESTIMONY OF HIGHWAY PATROLMEN.  NO JUVENILE TOOK THE STAND OR
OFFERED ANY WITNESS.  THE TESTIMONY WAS TO THE EFFECT THAT ON VARIOUS
OCCASIONS THE JUVENILES AND ADULTS WERE OBSERVED WALKING ALONG HIGHWAY
64 SINGING, SHOUTING, CLAPPING, AND PLAYING BASKETBALL.  AS A RESULT,
THERE WAS INTERFERENCE WITH TRAFFIC.  THE MARCHERS WERE ASKED TO LEAVE
THE PAVED PORTION OF THE HIGHWAY AND THEY WERE WARNED THAT THEY WERE
COMMITTING A STATUTORY OFFENSE.  THEY EITHER REFUSED OR LEFT THE
ROADWAY AND IMMEDIATELY RETURNED.  THE JUVENILES AND PARTICIPATING
ADULTS WERE TAKEN INTO CUSTODY.  JUVENILE PETITIONS WERE THEN FILED
WITH RESPECT TO THOSE UNDER THE AGE OF 16. 

THE EVIDENCE AS TO HOWARD WAS THAT ON THE MORNING OF DECEMBER 5, HE
WAS IN THE OFFICE OF THE PRINCIPAL OF THE O. A. PEAY SCHOOL WITH 15
OTHER PERSONS WHILE SCHOOL WAS IN SESSION AND WAS MOVING FURNITURE
AROUND; THAT THE OFFICE WAS IN DISARRAY; THAT AS A RESULT THE SCHOOL
CLOSED BEFORE NOON; AND THAT NEITHER HE NOR ANY OF THE OTHERS WAS A
STUDENT AT THE SCHOOL OR AUTHORIZED TO ENTER THE PRINCIPAL'S OFFICE. 

IN EACH CASE THE COURT FOUND THAT THE JUVENILE HAD COMMITTED "AN ACT
FOR WHICH AN ADULT MAY BE PUNISHED BY LAW."  A CUSTODY ORDER WAS
ENTERED DECLARING THE JUVENILE A DELINQUENT "IN NEED OF MORE SUITABLE
GUARDIANSHIP" AND COMMITTING HIM TO THE CUSTODY OF THE COUNTY
DEPARTMENT OF PUBLIC WELFARE FOR PLACEMENT IN A SUITABLE INSTITUTION
"UNTIL SUCH TIME AS THE BOARD OF JUVENILE CORRECTION OR THE
SUPERINTENDENT OF SAID INSTITUTION MAY DETERMINE, NOT INCONSISTENT WITH
THE LAWS OF THIS STATE."  THE COURT, HOWEVER, SUSPENDED THESE
COMMITMENTS AND PLACED EACH JUVENILE ON PROBATION FOR EITHER ONE OR TWO
YEARS CONDITIONED UPON HIS VIOLATING NONE OF THE STATE'S LAWS, UPON HIS
REPORTING MONTHLY TO THE COUNTY DEPARTMENT OF WELFARE, UPON HIS BEING
HOME BY 11 P.M. EACH EVENING, AND UPON HIS ATTENDING A SCHOOL APPROVED
BY THE WELFARE DIRECTOR.  NONE OF THE JUVENILES HAS BEEN CONFINED ON
THESE CHARGES.     ON APPEAL, THE CASES WERE CONSOLIDATED INTO TWO
GROUPS.  THE NORTH CAROLINA COURT OF APPEALS AFFIRMED.  IN RE BURRUS, 4
N.C.APP.  523, 167 S.E.2D 454 (1969); IN RE SHELTON, 5 N.C.APP.  487,
168 S.E.2D 695 (1969).  IN ITS TURN THE SUPREME COURT OF NORTH CAROLINA
DELETED THAT PORTION OF THE ORDER IN EACH CASE RELATING TO COMMITMENT,
BUT OTHERWISE AFFIRMED.  IN RE BURRUS, 275 N.C. 517, 169 S.E.2D 879
(1969).  TWO JUSTICES DISSENTED WITHOUT OPINION.  WE GRANTED
CERTIORARI.  397 U.S. 1036 (1970). 

       III 

IT IS INSTRUCTIVE TO REVIEW, AS AN ILLUSTRATION, THE SUBSTANCE OF
JUSTICE ROBERTS' OPINION FOR THE PENNSYLVANIA COURT.  HE OBSERVES, 438
PA.,AT 343, 265 A.2D, AT 352, THAT "(FOR OVER SIXTY-FIVE YEARS THE
SUPREME COURT GAVE NO CONSIDERATION AT ALL TO THE CONSTITUTIONAL
PROBLEMS INVOLVED IN THE JUVENILE COURT AREA"; THAT GAULT "IS SOMEWHAT
OF A PARADOX, BEING BOTH BROAD AND NARROW AT THE SAME TIME"; THAT IT
"IS BROAD IN THAT IT EVIDENCES A FUNDAMENTAL AND FAR-REACHING
DISILLUSIONMENT WITH THE ANTICIPATED BENEFITS OF THE JUVENILE COURT
SYSTEM"; THAT IT IS NARROW BECAUSE THE COURT ENUMERATED FOUR DUE
PROCESS RIGHTS WHICH IT HELD APPLICABLE IN JUVENILE PROCEEDINGS, BUT
DECLINED TO RULE ON TWO OTHER CLAIMED RIGHTS, ID., AT 344-345, 265
A.2D, AT 353; THAT AS A CONSEQUENCE THE PENNSYLVANIA COURT WAS
"CONFRONTED WITH A SWEEPING RATIONALE AND A CAREFULLY TAILORED
HOLDING," ID., AT 345, 265 A.2D, AT 353; THAT THE PROCEDURAL SAFEGUARDS
"GAULT SPECIFICALLY MADE APPLICABLE TO JUVENILE COURTS HAVE ALREADY
CAUSED A SIGNIFICANT 'CONSTITUTIONAL DOMESTICATION' OF JUVENILE COURT
PROCEEDINGS," ID., AT 346, 265 A.2D, AT 354; THAT THOSE SAFEGUARDS AND
OTHER RIGHTS, INCLUDING THE REASONABLE-DOUBT STANDARD ESTABLISHED BY
WINSHIP, "INSURE THAT THE JUVENILE COURT WILL OPERATE IN AN ATMOSPHERE
WHICH IS ORDERLY ENOUGH TO IMPRESS THE JUVENILE WITH THE GRAVITY OF THE
SITUATION AND THE IMPARTIALITY OF THE TRIBUNAL AND AT THE SAME TIME
INFORMAL ENOUGH TO PERMIT THE BENEFITS OF THE JUVENILE SYSTEM TO
OPERATE" (FOOTNOTE OMITTED), ID., AT 347, 265 A.2D, AT 354; THAT THE
"PROPER INQUIRY, THEN, IS WHETHER THE RIGHT TO A TRIAL BY JURY IS
'FUNDAMENTAL' WITHIN THE MEANING OF DUNCAN, IN THE CONTEXT OF A
JUVENILE COURT WHICH OPERATES WITH ALL OF THE ABOVE CONSTITUTIONAL
SAFEGUARDS," ID., AT 348, 265 A.2D, AT 354; AND THAT HIS COURT'S
INQUIRY TURNED "UPON WHETHER THERE ARE ELEMENTS IN THE JUVENILE PROCESS
WHICH RENDER THE RIGHT TO A TRIAL BY JURY LESS ESSENTIAL TO THE
PROTECTION OF AN ACCUSED'S RIGHTS IN THE JUVENILE SYSTEM THAN IN THE
NORMAL CRIMINAL PROCESS."  IBID. 

JUSTICE ROBERTS THEN CONCLUDED THAT SUCH FACTORS DO INHERE IN THE
PENNSYLVANIA JUVENILE SYSTEM:  (1) ALTHOUGH REALIZING THAT "FAITH IN
THE QUALITY OF THE JUVENILE BENCH IS NOT AN ENTIRELY SATISFACTORY
SUBSTITUTE FOR DUE PROCESS," ID., AT 348, 265 A.2D, AT 355, THE JUDGES
IN THE JUVENILE COURTS "DO TAKE A DIFFERENT VIEW OF THEIR ROLE THAN
THAT TAKEN BY THEIR COUNTERPARTS IN THE CRIMINAL COURTS."  ID., AT 348,
265 A.2D, AT 354-355.  (2) WHILE ONE REGRETS ITS INADEQUACIES, "THE
JUVENILE SYSTEM HAS AVAILABLE AND UTILIZES MUCH MORE FULLY VARIOUS
DIAGNOSTIC AND REHABILITATIVE SERVICES" THAT ARE "FAR SUPERIOR TO THOSE
AVAILABLE IN THE REGULAR CRIMINAL PROCESS."  ID., AT 348-349, 265 A.2D,
AT 355.  (3) ALTHOUGH CONCEDING THAT THE POST-ADJUDICATION PROCESS "HAS
IN MANY RESPECTS FALLEN FAR SHORT OF ITS GOALS, AND ITS REALITY IS FAR
HARSHER THAN ITS THEORY," THE END RESULT OF A DECLARATION OF
DELINQUENCY "IS SIGNIFICANTLY DIFFERENT FROM AND LESS ONEROUS THAN A
FINDING OF CRIMINAL GUILT" AND "WE ARE NOT YET CONVINCED THAT THE
CURRENT PRACTICES DO NOT CONTAIN THE SEEDS FROM WHICH A TRULY
APPROPRIATE SYSTEM CAN BE BROUGHT FORTH."  (4) FINALLY, "OF ALL THE
POSSIBLE DUE PROCESS RIGHTS WHICH COULD BE APPLIED IN THE JUVENILE
COURTS, THE RIGHT TO TRIAL BY JURY IS THE ONE WHICH WOULD MOST LIKELY
BE DISRUPTIVE OF THE UNIQUE NATURE OF THE JUVENILE PROCESS."  IT IS THE
JURY TRIAL THAT "WOULD PROBABLY REQUIRE SUBSTANTIAL ALTERATION OF THE
TRADITIONAL PRACTICES."  THE OTHER PROCEDURAL RIGHTS HELD APPLICABLE TO
THE JUVENILE PROCESS "WILL GIVE THE JUVENILES SUFFICIENT PROTECTION"
AND THE ADDITION OF THE TRIAL BY JURY "MIGHT WELL DESTROY THE
TRADITIONAL CHARACTER OF JUVENILE PROCEEDINGS."  ID., AT 349-350, 265
A.2D, AT 355. 

THE COURT CONCLUDED, ID., AT 350, 265 A.2D, AT 356, THAT IT WAS
CONFIDENT "THAT A PROPERLY STRUCTED AND FAIRLY ADMINISTERED JUVENILE
COURT SYSTEM CAN SERVE OUR PRESENT SOCIETAL NEEDS WITHOUT INFRINGING ON
INDIVIDUAL FREEDOMS." 

        IV 

THE RIGHT TO AN IMPARTIAL JURY "(IN ALL CRIMINAL PROSECUTIONS"
UNDER FEDERAL LAW IS GUARANTEED BY THE SIXTH AMENDMENT.  THROUGH THE
FOURTEENTH AMENDMENT THAT REQUIREMENT HAS NOW BEEN IMPOSED UPON THE
STATES "IN ALL CRIMINAL CASES WHICH-- WERE THEY TO BE TRIED IN A
FEDERAL COURT-- WOULD COME WITHIN THE SIXTH AMENDMENT'S GUARANTEE." 
THIS IS BECAUSE THE COURT HAS SAID IT BELIEVES "THAT TRIAL BY JURY IN
CRIMINAL CASES IS FUNDAMENTAL TO THE AMERICAN SCHEME OF JUSTICE." 
DUNCAN V. LOUISIANA, 391 U.S. 145, 149 (1968); BLOOM V. ILLINOIS, 391
U.S. 194, 210-211 (1968). 

THIS, OF COURSE, DOES NOT AUTOMATICALLY PROVIDE THE ANSWER TO THE
PRESENT JURY TRIAL ISSUE, IF FOR NO OTHER REASON THAN THAT THE JUVENILE
COURT PROCEEDING HAS NOT YET BEEN HELD TO BE A "CRIMINAL PROSECUTION,"
WITHIN THE MEANING AND REACH OF THE SIXTH AMENDMENT, AND ALSO HAS NOT
YET BEEN REGARDED AS DEVOID OF CRIMINAL ASPECTS MERELY BECAUSE IT
USUALLY HAS BEEN GIVEN THE CIVIL LABEL.  KENT, 383 U.S.,AT 554; GAULT,
387 U.S.,AT 17, 49-50; WINSHIP, 397 U.S.,AT 365-366. 

LITTLE, INDEED, IS TO BE GAINED BY ANY ATTEMPT SIMPLISTICALLY TO
CALL THE JUVENILE COURT PROCEEDING EITHER "CIVIL" OR "CRIMINAL."  THE
COURT CAREFULLY HAS AVOIDED THIS WOODEN APPROACH.  BEFORE GAULT WAS
DECIDED IN 1967, THE FIFTH AMENDMENT'S GUARANTEE AGAINST SELF
INCRIMINATION HAD BEEN IMPOSED UPON THE STATE CRIMINAL TRIAL.  MALLOY
V. HOGAN, 378 U.S. 1 (1964).  SO, TOO, HAD THE SIXTH AMENDMENT'S RIGHTS
OF CONFRONTATION AND CROSS-EXAMINATION.  POINTER V. TEXAS, 380 U.S. 400
(1965), AND DOUGLAS V. ALABAMA, 380 U.S. 415 (1965).  YET THE COURT DID
NOT AUTOMATICALLY AND PEREMPTORILY APPLY THOSE RIGHTS TO THE JUVENILE
PROCEEDING.  A READING OF GAULT REVEALS THE OPPOSITE.  AND THE SAME
SEPARATE APPROACH TO THE STAND-OF-PROOF ISSUE IS EVIDENT FROM THE
CAREFULLY SEPARATED APPLICATION OF THE STANDARD, FIRST TO THE CRIMINAL
TRIAL, AND THEN TO THE JUVENILE PROCEEDING, DISPLAYED IN WINSHIP.  397
U.S.,AT 361 AND 365. 

THUS, ACCEPTING "THE PROPOSITION THAT THE DUE PROCESS CLAUSE HAS A
ROLE TO PLAY," GAULT, 387 U.S.,AT 13, OUR TASK HERE WITH RESPECT TO
TRIAL BY JURY, AS IT WAS IN GAULT WITH RESPECT TO OTHER CLAIMED RIGHTS,
"IS TO ASCERTAIN THE PRECISE IMPACT OF THE DUE PROCESS REQUIREMENT." 
ID., AT 13-14. 

        V 

THE PENNSYLVANIA JUVENILES' BASIC ARGUMENT IS THAT THEY WERE TRIED
IN PROCEEDINGS "SUBSTANTIALLY SIMILAR TO A CRIMINAL TRIAL."  THEY SAY
THAT A DELINQUENCY PROCEEDING IN THEIR STATE IS INITIATED BY A PETITION
CHARGING A PENAL CODE VIOLATION IN THE CONCLUSORY LANGUAGE OF AN
INDICTMENT; THAT A JUVENILE DETAINED PRIOR TO TRIAL IS HELD IN A
BUILDING SUBSTANTIALLY SIMILAR TO AN ADULT PRISON; THAT IN PHILADELPHIA
JUVENILES OVER 16 ARE, IN FACT, HELD IN THE CELLS OF A PRISON; THAT
COUNSEL AND THE PROSECUTION ENGAGE IN PLEA BARGAINING; THAT MOTIONS TO
SUPPRESS ARE ROUTINELY HEARD AND DECIDED; THAT THE USUAL RULES OF
EVIDENCE ARE APPLIED; THAT THE CUSTOMARY COMMON-LAW DEFENSES ARE
AVAILABLE; THAT THE PRESS IS GENERALLY ADMITTED IN THE PHILADELPHIA
JUVENILE COURTROOMS; THAT MEMBERS OF THE PUBLIC ENTER THE ROOM; THAT
ARREST AND PRIOR RECORD MAY BE REPORTED BY THE PRESS (FROM POLICE
SOURCES, HOWEVER, RATHER THAN FROM THE JUVENILE COURT RECORDS); THAT,
ONCE ADJUDGED DELINQUENT, A JUVENILE MAY BE CONFINED UNTIL HIS MAJORITY
IN WHAT AMOUNTS TO A PRISON (SEE IN RE BETHEA, 215 PA.SUPER.  75, 76,
257 A.2D 368, 369 (1969), DESCRIBING THE STATE CORRECTIONAL INSTITUTION
AT CAMP HILL AS A "MAXIMUM SECURITY PRISON FOR ADJUDGED DELINQUENTS AND
YOUTHFUL CRIMINAL OFFENDERS"); AND THAT THE STIGMA ATTACHED UPON
DELINQUENCY ADJUDICATION APPROXIMATES THAT RESULTING FROM CONVICTION IN
AN ADULT CRIMINAL PROCEEDING. 

THE NORTH CAROLINA JUVENILES PARTICULARLY URGE THAT THE REQUIREMENT
OF A JURY TRIAL WOULD NOT OPERATE TO DENY THE SUPPOSED BENEFITS OF THE
JUVENILE COURT SYSTEM; THAT THE SYSTEM'S PRIMARY BENEFITS ARE ITS
DISCRETIONARY INTAKE PROCEDURE PERMITTING DISPOSITION SHORT OF
ADJUDICATION, AND ITS FLEXIBLE SENTENCING PERMITTING EMPHASIS ON
REHABILITATION; THAT REALIZATION OF THESE BENEFITS DOES NOT DEPEND UPON
DISPENSING WITH THE JURY; THAT ADJUDICATION OF FACTUAL ISSUES ON THE
ONE HAND AND DISPOSITION OF THE CASE ON THE OTHER ARE VERY DIFFERENT
MATTERS WITH VERY DIFFERENT PURPOSES; THAT THE PURPOSE OF THE FORMER IS
INDISTINGUISHABLE FROM THAT OF THE CRIMINAL TRIAL; THAT THE JURY TRIAL
PROVIDES AN INDEPENDENT PROTECTIVE FACTOR; THAT EXPERIENCE HAS SHOWN
THAT JURY TRIALS IN JUVENILE COURTS ARE MANAGEABLE; THAT NO REASON
EXISTS WHY PROTECTION TRADITIONALLY ACCORDED IN CRIMINAL PROCEEDINGS
SHOULD BE DENIED YOUNG PEOPLE SUBJECT TO INVOLUNTARY INCARCERATION FOR
LENGTHY PERIODS; AND THAT THE JUVENILE COURTS DESERVE HEALTHY PUBLIC
SCRUTINY. 

        VI 

ALL THE LITIGANTS HERE AGREE THAT THE APPLICABLE DUE PROCESS
STANDARD IN JUVENILE PROCEEDINGS, AS DEVELOPED BY GAULT AND WINSHIP, IS
FUNDAMENTAL FAIRNESS.  AS THAT STANDARD WAS APPLIED IN THOSE TWO CASES,
WE HAVE AN EMPHASIS ON FACTFINDING PROCEDURES.  THE REQUIREMENTS OF
NOTICE, COUNSEL, CONFRONTATION, CROSS-EXAMINATION, AND STANDARD OF
PROOF NATURALLY FLOWED FROM THIS EMPHASIS.  BUT ONE CANNOT SAY THAT IN
OUR LEGAL SYSTEM THE JURY IS A NECESSARY COMPONENT OF ACCURATE
FACTFINDING.  THERE IS MUCH TO BE SAID FOR IT, TO BE SURE, BUT WE HAVE
BEEN CONTENT TO PURSUE OTHER WAYS FOR DETERMINING FACTS.  JURIES ARE
NOT REQUIRED, AND HAVE NOT BEEN, FOR EXAMPLE, IN EQUITY CASES, IN
WORKMEN'S COMPENSATION, IN PROBATE, OR IN DEPORTATION CASES.  NEITHER
HAVE THEY BEEN GENERALLY USED IN MILITARY TRIALS.  IN DUNCAN THE COURT
STATED, "WE WOULD NOT ASSERT, HOWEVER, THAT EVERY CRIMINAL TRIAL-- OR
ANY PARTICULAR TRIAL-- HELD BEFORE A JUDGE ALONE IS UNFAIR OR THAT A
DEFENDANT MAY NEVER BE AS FAIRLY TREATED BY A JUDGE AS HE WOULD BE BY A
JURY."  391 U.S.,AT 158.  IN DESTEFANO, FOR THIS REASON AND OTHERS, THE
COURT REFRAINED FROM RETROSPECTIVE APPLICATION OF DUNCAN, AN ACTION IT
SURELY WOULD HAVE NOT TAKEN HAD IT FELT THAT THE INTEGRITY OF THE
RESULT WAS SERIOUSLY AT ISSUE.  AND IN WILLIAMS V. FLORIDA, 399 U.S. 78
(1970), THE COURT SAW NO PARTICULAR MAGIC IN A 12-MAN JURY FOR A
CRIMINAL CASE, THUS REVEALING THAT EVEN JURY CONCEPTS THEMSELVES ARE
NOT INFLEXIBLE. 

WE MUST RECOGNIZE, AS THE COURT HAS RECOGNIZED BEFORE, THAT THE FOND
AND IDEALISTIC HOPES OF THE JUVENILE COURT PROPONENTS AND EARLY
REFORMERS OF THREE GENERATIONS AGO HAVE NOT BEEN REALIZED.  THE
DEVASTATING COMMENTARY UPON THE SYSTEM'S FAILURES AS A WHOLE, CONTAINED
IN THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, TASK FORCE REPORT:  JUVENILE DELINQUENCY AND YOUTH CRIME 7-9
(1967), REVEALS THE DEPTH OF DISAPPOINTMENT IN WHAT HAS BEEN
ACCOMPLISHED.  TOO OFTEN THE JUVENILE COURT JUDGE FALLS FAR SHORT OF
THAT STALWART, PROTECTIVE, AND COMMUNICATING FIGURE THE SYSTEM
ENVISAGED.  /4/  THE COMMUNITY'S UNWILLINGNESS TO PROVIDE PEOPLE AND
FACILITIES AND TO BE CONCERNED, THE INSUFFICIENCY OF TIME DEVOTED, THE
SCARCITY OF PROFESSIONAL HELP, THE INADEQUACY OF DISPOSITIONAL
ALTERNATIVES, AND OUR GENERAL LACK OF KNOWLEDGE ALL CONTRIBUTE TO
DISSATISFACTION WITH THE EXPERIMENT.  /5/ 

THE TASK FORCE REPORT, HOWEVER, ALSO SAID, ID., AT 7, "TO SAY THAT
JUVENILE COURTS HAVE FAILED TO ACHIEVE THEIR GOALS IS TO SAY NO MORE
THAN WHAT IS TRUE OF CRIMINAL COURTS IN THE UNITED STATES.  BUT FAILURE
IS MOST STRIKING WHEN HOPES ARE HIGHEST." 

DESPITE ALL THESE DISAPPOINTMENTS, ALL THESE FAILURES, AND ALL THESE
SHORTCOMINGS, WE CONCLUDE THAT TRIAL BY JURY IN THE JUVENILE COURT'S
ADJUDICATIVE STAGE IS NOT A CONSTITUTIONAL REQUIREMENT.  WE SO CONCLUDE
FOR A NUMBER OF REASONS: 

1.  THE COURT HAS REFRAINED, IN THE CASES HERETOFORE DECIDED, FROM
TAKING THE EASY WAY WITH A FLAT HOLDING THAT ALL RIGHTS
CONSTITUTIONALLY ASSURED FOR THE ADULT ACCUSED ARE TO BE IMPOSED UPON
THE STATE JUVENILE PROCEEDING.  WHAT WAS DONE IN GAULT AND IN WINSHIP
IS APTLY DESCRIBED IN COMMONWEALTH V. JOHNSON, 211 PA.SUPER.  62, 74,
234 A.2D 9, 15 (1967): 

"IT IS CLEAR TO US THAT THE SUPREME COURT HAS PROPERLY ATTEMPTED TO
STRIKE A JUDICIOUS BALANCE BY INJECTING PROCEDURAL ORDERLINESS INTO THE
JUVENILE COURT SYSTEM.  IT IS SEEKING TO REVERSE THE TREND (POINTED OUT
IN KENT, 383 U.S.,AT 556) WHEREBY 'THE CHILD RECEIVES THE WORST OF BOTH
WORLDS . . . '" 

2.  THERE IS A POSSIBILITY, AT LEAST, THAT THE JURY TRIAL, IF
REQUIRED AS A MATTER OF CONSTITUTIONAL PRECEPT, WILL REMAKE THE
JUVENILE PROCEEDING INTO A FULLY ADVERSARY PROCESS AND WILL PUT AN
EFFECTIVE END TO WHAT HAS BEEN THE IDEALISTIC PROSPECT OF AN INTIMATE,
INFORMAL PROTECTIVE PROCEEDING. 

3.  THE TASK FORCE REPORT, ALTHOUGH CONCEDEDLY PRE-GAULT, IS NOTABLE
FOR ITS NOT MAKING ANY RECOMMENDATION THAT THE JURY TRIAL BE IMPOSED
UPON THE JUVENILE COURT SYSTEM.  THIS IS SO DESPITE ITS VIVID
DESCRIPTION OF THE SYSTEM'S DEFICIENCIES AND DISAPPOINTMENTS.  HAD THE
COMMISSION DEEMED THIS VITAL TO THE INTEGRITY OF THE JUVENILE PROCESS,
OR TO THE HANDLING OF JUVENILES, SURELY A RECOMMENDATION OR SUGGESTION
TO THIS EFFECT WOULD HAVE APPEARED.  THE INTIMATIONS, INSTEAD, ARE
QUITE THE OTHER WAY.  TASK FORCE REPORT 38.  FURTHER, IT EXPRESSLY
RECOMMENDS AGAINST ABANDONMENT OF THE SYSTEM AND AGAINST THE RETURN OF
THE JUVENILE TO THE CRIMINAL COURTS.  /6/     4.  THE COURT
SPECIFICALLY HAS RECOGNIZED BY DICTUM THAT A JURY IS NOT A NECESSARY
PART EVEN OF EVERY CRIMINAL PROCESS THAT IS FAIR AND EQUITABLE.  DUNCAN
V. LOUISIANA, 391 U.S.,AT 149-150, N. 14, AND 158. 

5.  THE IMPOSITION OF THE JURY TRIAL ON THE JUVENILE COURT SYSTEM
WOULD NOT STRENGTHEN GREATLY, IF AT ALL, THE FACTFINDING FUNCTION, AND
WOULD, CONTRARILY, PROVIDE AN ATTRITION OF THE JUVENILE COURT'S ASSUMED
ABILITY TO FUNCTION IN A UNIQUE MANNER.  IT WOULD NOT REMEDY THE
DEFECTS OF THE SYSTEM.  MEAGER AS HAS BEEN THE HOPED-FOR ADVANCE IN THE
JUVENILE FIELD, THE ALTERNATIVE WOULD BE REGRESSIVE, WOULD LOSE WHAT
HAS BEEN GAINED, AND WOULD TEND ONCE AGAIN TO PLACE THE JUVENILE
SQUARELY IN THE ROUTINE OF THE CRIMINAL PROCESS. 

6.  THE JUVENILE CONCEPT HELD HIGH PROMISE.  WE ARE RELUCTANT TO SAY
THAT, DESPITE DISAPPOINTMENTS OF GRAVE DIMENSIONS, IT STILL DOES NOT
HOLD PROMISE, AND WE ARE PARTICULARLY RELUCTANT TO SAY, AS DO THE
PENNSYLVANIA APPELLANTS HERE, THAT THE SYSTEM CANNOT ACCOMPLISH ITS
REHABILITATIVE GOALS.  SO MUCH DEPENDS ON THE AVAILABILITY OF
RESOURCES, ON THE INTEREST AND COMMITMENT OF THE PUBLIC, ON WILLINGNESS
TO LEARN, AND ON UNDERSTANDING AS TO CAUSE AND EFFECT AND CURE.  IN
THIS FIELD, AS IN SO MANY OTHERS, ONE PERHAPS LEARNS BEST BY DOING.  WE
ARE RELUCTANT TO DISALLOW THE STATES TO EXPERIMENT FURTHER AND TO SEEK
IN NEW AND DIFFERENT WAYS THE ELUSIVE ANSWERS TO THE PROBLEMS OF THE
YOUNG, AND WE FEEL THAT WE WOULD BE IMPEDING THAT EXPERIMENTATION BY
IMPOSING THE JURY TRIAL.  THE STATES, INDEED, MUST GO FORWARD.  IF, IN
ITS WISDOM, ANY STATE FEELS THE JURY TRIAL IS DESIRABLE IN ALL CASES,
OR IN CERTAIN KINDS, THERE APPEARS TO BE NO IMPEDIMENT TO ITS
INSTALLING A SYSTEM EMBRACING THAT FEATURE.  THAT, HOWEVER, IS THE
STATE'S PRIVILEGE AND NOT ITS OBLIGATION. 

7.  OF COURSE THERE HAVE BEEN ABUSES.  THE TASK FORCE REPORT HAS
NOTED THEM.  WE REFRAIN FROM SAYING AT THIS POINT THAT THOSE ABUSES ARE
OF CONSTITUTIONAL DIMENSION.  THEY RELATE TO THE LACK OF RESOURCES AND
OF DEDICATION RATHER THAN TO INHERENT UNFAIRNESS. 

8.  THERE IS, OF COURSE, NOTHING TO PREVENT A JUVENILE COURT JUDGE,
IN A PARTICULAR CASE WHERE HE FEELS THE NEED, OR WHEN THE NEED IS
DEMONSTRATED, FROM USING AN ADVISORY JURY. 

9.  "THE FACT THAT A PRACTICE IS FOLLOWED BY A LARGE NUMBER OF
STATES ISNOT CONCLUSIVE IN A DECISION AS TO WHETHER THAT PRACTICE
ACCORDS WITH DUE PROCESS, BUT IT IS PLAINLY WORTH CONSIDERING IN
DETERMINING WHETHER THE PRACTICE 'OFFENDS SOME PRINCIPLE OF JUSTICE SO
ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO BE RANKED
AS FUNDAMENTAL.'  SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105 (1934)." 
LELAND V. OREGON, 343 U.S. 790, 798 (1952).  IT THEREFORE IS OF MORE
THAN PASSING INTEREST THAT AT LEAST 29 STATES AND THE DISTRICT OF
COLUMBIA BY STATUTE DENY THE JUVENILE A RIGHT TO A JURY TRIAL IN CASES
SUCH AS THESE.  /7/  THE SAME RESULT IS ACHIEVED IN OTHER STATES BY
JUDICIAL DECISION.  /8/  IN 10 STATES STATUTES PROVIDE FOR A JURY TRIAL
UNDER CERTAIN CIRCUMSTANCES.  /9/ 

10.  SINCE GAULT AND SINCE DUNCAN THE GREAT MAJORITY OF STATES, IN
ADDITION TO PENNSYLVANIA AND NORTH CAROLINA, THAT HAVE FACED THE ISSUE
HAVE CONCLUDED THAT THE CONSIDERATIONS THAT LED TO THE RESULT IN THOSE
TWO CASES DO NOT COMPEL TRIAL BY JURY IN THE JUVENILE COURT.  IN RE
FUCINI, 44 ILL.2D 305, 255 N.E.2D 380 (1970); BIBLE V. STATE,-- IND.--
, 254 N.E.2D 319 (1970); DRYDEN V. COMMONWEALTH, 435 S.W.2D 457 (KY.
1968); IN RE JOHNSON, 254 MD. 517, 255 A.2D 419 (1969); HOPKINS V.
YOUTH COURT, 227 SO.2D 282 (MISS.  1969); IN RE J.W., 106 N.J.SUPER. 
129, 254 A.2D 334 (1969); IN RE D., 27 N.Y.2D 90, 261 N.E.2D 627
(1970); IN RE AGLER, 19 OHIO ST.2D 70, 249 N.E.2D 808 (1969); STATE V.
TURNER, 253 ORE.  235, 453 P.2D 910 (1969).  SEE IN RE ESTES V. HOPP,
73 WASH.2D 263, 438 P.2D 205 (1968); MCMULLEN V. GEIGER, 184 NEB. 581,
169 N.W.2D 431 (1969).  TO THE CONTRARY ARE PEYTON V. NORD, 78 N.M.
717, 437 P.2D 716 (1968), AND, SEMBLE, NIEVES V. UNITED STATES, 280
F.SUPP.  994 (SDNY 1968). 

11.  STOPPING SHORT OF PROPOSING THE JURY TRIAL FOR JUVENILE
PROCEEDINGS ARE THE UNIFORM JUVENILE COURT ACT, SEC. 24(A), APPROVED IN
JULY 1968 BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE
LAWS; THE STANDARD JUVENILE COURT ACT, ART. V, SEC. 19, PROPOSED BY THE
NATIONAL COUNCIL ON CRIME AND DELINQUENCY (SEE W. SHERIDAN, STANDARDS
FOR JUVENILE AND FAMILY COURTS 73, DEPT. OF H.E.W., CHILDREN'S BUREAU
PUB. NO. 437-1966); AND THE LEGISLATIVE GUIDE FOR DRAFTING FAMILY AND
JUVENILE COURT ACTS SEC. 29(A) (DEPT. OF H.E.W., CHILDREN'S BUREAU PUB.
NO. 472-1969). 

12.  IF THE JURY TRIAL WERE TO BE INJECTED INTO THE JUVENILE COURT
SYSTEM AS A MATTER OF RIGHT, IT WOULD BRING WITH IT INTO THAT SYSTEM
THE TRADITIONAL DELAY, THE FORMALITY, AND THE CLAMOR OF THE ADVERSARY
SYSTEM AND, POSSIBLY, THE PUBLIC TRIAL.  IT IS OF INTEREST THAT THESE
VERY FACTORS WERE STRESSED BY THE DISTRICT COMMITTEE OF THE SENATE
WHEN, THROUGH SENATOR TYDINGS, IT RECOMMENDED, AND CONGRESS THEN
APPROVED, AS A PROVISION IN THE DISTRICT OF COLUMBIA CRIME BILL, THE
ABOLITION OF THE JURY TRIAL IN THE JUVENILE COURT.  S. REP. NO. 91-620,
PP. 13-14 (1969). 

13.  FINALLY, THE ARGUMENTS ADVANCED BY THE JUVENILES HERE ARE, OF
COURSE, THE IDENTICAL ARGUMENTS THAT UNDERLIE THE DEMAND FOR THE JURY
TRIAL FOR CRIMINAL PROCEEDINGS.  THE ARGUMENTS NECESSARILY EQUATE THE
JUVENILE PROCEEDING-- OR AT LEAST THE ADJUDICATIVE PHASE OF IT-- WITH
THE CRIMINAL TRIAL.  WHETHER THEY SHOULD BE SO EQUATED IS OUR ISSUE. 
CONCERN ABOUT THE INAPPLICABILITY OF EXCLUSIONARY AND OTHER RULES OF
EVIDENCE, ABOUT THE JUVENILE COURT JUDGE'S POSSIBLE AWARENESS OF THE
JUVENILE'S PRIOR RECORD AND OF THE CONTENTS OF THE SOCIAL FILE; ABOUT
REPEATED APPEARANCES OF THE SAME FAMILIAR WITNESSES IN THE PERSONS OF
JUVENILE AND PROBATION OFFICERS AND SOCIAL WORKERS-- ALL TO THE EFFECT
THAT THIS WILL CREATE THE LIKELIHOOD OF PRE-JUDGMENT-- CHOOSES TO
IGNORE, IT SEEMS TO US, EVERY ASPECT OF FAIRNESS, OF CONCERN, OF
SYMPATHY, AND OF PATERNAL ATTENTION THAT THE JUVENILE COURT SYSTEM
CONTEMPLATES. 

IF THE FORMALITIES OF THE CRIMINAL ADJUDICATIVE PROCESS ARE TO BE
SUPERIMPOSED UPON THE JUVENILE COURT SYSTEM, THERE IS LITTLE NEED FOR
ITS SEPARATE EXISTENCE.  PERHAPS THAT ULTIMATE DISILLUSIONMENT WILL
COME ONE DAY, BUT FOR THE MOMENT WE ARE DISINCLINED TO GIVE IMPETUS TO
IT.

              AFFIRMED. 

/0/  TOGETHER WITH NO. 128, IN RE BURRUS ET AL., ON CERTIORARI TO
THE SUPREME COURT OF NORTH CAROLINA, ARGUED DECEMBER 9-10, 1970. 

/1/  SEE MR. JUSTICE FORTAS' ARTICLE, EQUAL RIGHTS-- FOR WHOM?, 42
N.Y.U.L.REV.  401, 406 (1967). 

/2/  AT MCKEIVER'S HEARING HIS COUNSEL ADVISED THE COURT THAT HE HAD
NEVER SEEN MCKEIVER BEFORE AND "WAS JUST IN THE MIDDLE OF INTERVIEWING"
HIM.  THE COURT ALLOWED HIM FIVE MINUTES FOR THE INTERVIEW.  COUNSEL'S
OFFICE, COMMUNITY LEGAL SERVICES, HOWEVER, HAD BEEN APPOINTED TO
REPRESENT MCKEIVER FIVE MONTHS EARLIER.  APP. 2. 

/3/  IN NORTH CAROLINA JUVENILE COURT PROCEDURES ARE PROVIDED ONLY
FOR PERSONS UNDER THE AGE OF 16.  N.C. GEN. STAT. SECS. 7A-277 AND 7A
278(1) (1969). 

/4/  "A RECENT STUDY OF JUVENILE COURT JUDGES . . . REVEALED THAT
HALF HAD NOT RECEIVED UNDERGRADUATE DEGREES; A FIFTH HAD RECEIVED NO
COLLEGE EDUCATION AT ALL; A FIFTH WERE NOT MEMBERS OF THE BAR."  TASK
FORCE REPORT 7. 

/5/  "WHAT EMERGES, THEN, IS THIS:  IN THEORY THE JUVENILE COURT WAS
TO BE HELPFUL AND REHABILITATIVE RATHER THAN PUNITIVE.  IN FACT THE
DISTINCTION OFTEN DISAPPEARS, NOT ONLY BECAUSE OF THE ABSENCE OF
FACILITIES AND PERSONNEL BUT ALSO BECAUSE OF THE LIMITS OF KNOWLEDGE
AND TECHNIQUE.  IN THEORY THE COURT'S ACTION WAS TO AFFIX NO
STIGMATIZING LABEL.  IN FACT A DELINQUENT IS GENERALLY VIEWED BY
EMPLOYERS, SCHOOLS, THE ARMED SERVICES-- BY SOCIETY GENERALLY-- AS A
CRIMINAL.  IN THEORY THE COURT WAS TO TREAT CHILDREN GUILTY OF CRIMINAL
ACTS IN NONCRIMINAL WAYS.  IN FACT IT LABELS TRUANTS AND RUNAWAYS AS
JUNIOR CRIMINALS. 

"IN THEORY THE COURT'S OPERATIONS COULD JUSTIFIABLY BE INFORMAL, ITS
FINDINGS AND DECISIONS MADE WITHOUT OBSERVING ORDINARY PROCEDURAL
SAFEGUARDS, BECAUSE IT WOULD ACT ONLY IN THE BEST INTEREST OF THE
CHILD.  IN FACT IT FREQUENTLY DOES NOTHING MORE NOR LESS THAN DEPRIVE A
CHILD OF LIBERTY WITHOUT DUE PROCESS OF LAW-- KNOWING NOT WHAT ELSE TO
DO AND NEEDING, WHETHER ADMITTEDLY OR NOT, TO ACT IN THE COMMUNITY'S
INTEREST EVEN MORE IMPERATIVELY THAN THE CHILD'S.  IN THEORY IT WAS TO
EXERCISE ITS PROTECTIVE POWERS TO BRING AN ERRANT CHILD BACK INTO THE
FOLD.  IN FACT THERE IS INCREASING REASON TO BELIEVE THAT ITS
INTERVENTION REINFORCES THE JUVENILE'S UNLAWFUL IMPULSES.  IN THEORY IT
WAS TO CONCENTRATE ON EACH CASE THE BEST OF CURRENT SOCIAL SCIENCE
LEARNING.  IN FACT IT HAS OFTEN BECOME A VESTED INTEREST IN ITS TURN,
LOATHE TO COOPERATE WITH INNOVATIVE PROGRAMS OR AVAIL ITSELF OF FORWARD
LOOKING METHODS."  TASK FORCE REPORT 9. 

/6/  "NEVERTHELESS, STUDY OF THE JUVENILE COURTS DOES NOT
NECESSARILY LEAD TO THE CONCLUSION THAT THE TIME HAS COME TO JETTISON
THE EXPERIMENT AND REMAND THE DISPOSITION OF CHILDREN CHARGED WITH
CRIME TO THE CRIMINAL COURTS OF THE COUNTRY.  AS TRYING AS ARE THE
PROBLEMS OF THE JUVENILE COURTS, THE PROBLEMS OF THE CRIMINAL COURTS,
PARTICULARLY THOSE OF THE LOWER COURTS, WHICH WOULD FALL HEIR TO MUCH
OF THE JUVENILE COURT JURISDICTION, ARE EVEN GRAVER; AND THE IDEAL OF
SEPARATE TREATMENT OF CHILDREN IS STILL WORTH PURSUING.  WHAT IS
REQUIRED IS RATHER A REVISED PHILOSOPHY OF THE JUVENILE COURT BASED ON
THE RECOGNITION THAT IN THE PAST OUR REACH EXCEEDED OUR GRASP.  THE
SPIRIT THAT ANIMATED THE JUVENILE COURT MOVEMENT WAS FED IN PART BY A
HUMANITARIAN COMPASSION FOR OFFENDERS WHO WERE CHILDREN.  THAT
WILLINGNESS TO UNDERSTAND AND TREAT PEOPLE WHO THREATEN PUBLIC SAFETY
AND SECURITY SHOULD BE NURTURED, NOT TURNED ASIDE AS HOPELESS
SENTIMENTALITY, BOTH BECAUSE IT IS CIVILIZED AND BECAUSE SOCIAL
PROTECTION ITSELF DEMANDS CONSTANT SEARCH FOR ALTERNATIVES TO THE CRUDE
AND LIMITED EXPEDIENT OF CONDEMNATION AND PUNISHMENT.  BUT NEITHER
SHOULD IT BE ALLOWED TO OUTRUN REALITY.  THE JUVENILE COURT IS A COURT
OF LAW, CHARGED LIKE OTHER AGENCIES OF CRIMINAL JUSTICE WITH PROTECTING
THE COMMUNITY AGAINST THREATENING CONDUCT.  REHABILITATING OFFENDERS
THROUGH INDIVIDUALIZED HANDLING IS ONE WAY OF PROVIDING PROTECTION, AND
APPROPRIATELY THE PRIMARY WAY IN DEALING WITH CHILDREN.  BUT THE
GUIDING CONSIDERATION FOR A COURT OF LAW THAT DEALS WITH THREATENING
CONDUCT IS NONETHELESS PROTECTION OF THE COMMUNITY.  THE JUVENILE
COURT, LIKE OTHER COURTS, IS THEREFORE OBLIGED TO EMPLOY ALL THE MEANS
AT HAND, NOT EXCLUDING INCAPACITATION, FOR ACHIEVING THAT PROTECTION. 
WHAT SHOULD DISTINGUISH THE JUVENILE FROM THE CRIMINAL COURTS IS
GREATER EMPHASIS ON REHABILITATION, NOT EXCLUSIVE PREOCCUPATION WITH
IT."  TASK FORCE REPORT 9. 

/7/  ALA. CODE, TIT. 13, SEC. 369 (1958); ALASKA STAT. SEC.
47.10.070 (SUPP. 1970); ARIZ. REV. STAT. ANN. SEC. 8-229 (1956), SEE
ARIZ. LAWS, C. 223 (MAY 19, 1970); ARK. STAT. ANN. SEC. 45-206 (1964);
DEL. CODE ANN., TIT. 10, SEC. 1175 (SUPP. 1970); FLA. STAT. SEC.
39.09(2) (1965); GA. CODE ANN. SEC. 24-2420 (SUPP. 1970); HAWAII REV.
STAT. SEC. 571-41 (1968); IDAHO CODE SEC. 16-1813 (SUPP. 1969); IND.
ANN. STAT. SEC. 9-3215 (SUPP. 1970); IOWA CODE SEC. 232.27 (1971); KY.
REV. STAT. SEC. 208.060 (1962); LA. REV. STAT. SEC. 13:1579 (SUPP.
1962); MINN. STAT. SEC. 260.155 SUBD. 1 (1969); MISS.  CODE ANN. SEC.
7185-08 (1942); MO. REV. STAT. SEC. 211.171(6) (1969) (EQUITY PRACTICE
CONTROLS); NEB. REV. STAT. SEC. 43-206.03(2) (1968); NEV. REV. STAT.
SEC. 62.190(3) (1968); N.J. STAT. ANN. SEC. 2A:4-35 (1952); N.Y. FAMILY
COURT ACT SECS. 164 AND 165 AND CIV. PRAC.  LAW AND RULES SEC. 4101;
N.C. GEN. STAT. SEC. 7A-285 (1969); N.D. CENT. CODE SEC. 27-16-18
(1960); OHIO REV. CODE ANN. SEC. 2151.35 (SUPP. 1970); ORE.  REV. 
STAT. SEC. 419.498(1) (1968); PA. STAT. ANN., TIT. 11 SEC. 247 (1965);
S.C. CODE ANN. SEC. 15-1095.19 (SUPP. 1970); UTAH CODE ANN. SEC. 55-10
94 (SUPP. 1969); VT. STAT. ANN., TIT. 33, SEC. 651(A) (SUPP. 1970);
WASH. REV. CODE ANN. SEC. 13.04.030; D.C. CODE SEC. 16-2316(A) (SUPP.
1971). 

/8/  IN RE DAEDLER, 194 CAL. 320, 228 P. 467 (1924); CINQUE V. BOYD,
99 CONN. 70, 121 A. 678 (1923); IN RE FLETCHER, 251 MD. 520, 248 A.2D
354 (1968); COMMONWEALTH V. PAGE, 339 MASS. 313, 316, 159 N.E.2D 82, 85
(1959); IN RE PERHAM, 104 N.H. 276, 184 A.2D 449 (1962). 

/9/  COLO. REV. STAT. ANN. SEC. 37-19-24 (SUPP. 1965); KAN. STAT.
ANN. SEC. 38-808 (SUPP. 1969); MICH. COMP. LAWS SEC. 712A.17 (1948);
MONT. REV. CODES ANN. SEC. 10-604.1 (SUPP. 1969); OKLA. STAT. ANN.,
TIT. 10, SEC. 1110 (SUPP. 1970); S.D. COMP. LAWS SEC. 26-8-31 (1967);
TEX. CIV. STAT., ART. 2338-1, SEC. 13(B) (SUPP. 1970); W.VA. CODE ANN.
SEC. 49-5-6 (1966); WIS. STAT. ANN. SEC. 48.25(2) (SUPP. 1971); WYO.
STAT. ANN. SEC. 14-115.24 (SUPP. 1971). 

MR. JUSTICE WHITE, CONCURRING. 

ALTHOUGH THE FUNCTION OF THE JURY IS TO FIND FACTS, THAT BODY IS NOT
NECESSARILY OR EVEN PROBABLY BETTER AT THE JOB THAN THE CONSCIENTIOUS
JUDGE.  NEVERTHELESS, THE CONSEQUENCES OF CRIMINAL GUILT ARE SO SEVERE
THAT THE CONSTITUTION MANDATES A JURY TO PREVENT ABUSES OF OFFICIAL
POWER BY INSURING, WHERE DEMANDED, COMMUNITY PARTICIPATION IN IMPOSING
SERIOUS DEPRIVATIONS OF LIBERTY AND TO PROVIDE A HEDGE AGAINST CORRUPT,
BIASED, OR POLITICAL JUSTICE.  WE HAVE NOT, HOWEVER, CONSIDERED THE
JUVENILE CASE A CRIMINAL PROCEEDING WITHIN THE MEANING OF THE SIXTH
AMENDMENT AND HENCE AUTOMATICALLY SUBJECT TO ALL OF THE RESTRICTIONS
NORMALLY APPLICABLE IN CRIMINAL CASES.  THE QUESTION HERE IS ONE OF DUE
PROCESS OF LAW AND I JOIN THE PLURALITY OPINION CONCLUDING THAT THE
STATES ARE NOT REQUIRED BY THAT CLAUSE TO AFFORD JURY TRIALS IN
JUVENILE COURTS WHERE JUVENILES ARE CHARGED WITH IMPROPER ACTS.     THE
CRIMINAL LAW PROCEEDS ON THE THEORY THAT DEFENDANTS HAVE A WILL AND ARE
RESPONSIBLE FOR THEIR ACTIONS.  A FINDING OF GUILT ESTABLISHES THAT
THEY HAVE CHOSEN TO ENGAGE IN CONDUCT SO REPREHENSIBLE AND INJURIOUS TO
OTHERS THAT THEY MUST BE PUNISHED TO DETER THEM AND OTHERS FROM CRIME. 
GUILTY DEFENDANTS ARE CONSIDERED BLAMEWORTHY; THEY ARE BRANDED AND
TREATED AS SUCH, HOWEVER MUCH THE STATE ALSO PURSUES REHABILITATIVE
ENDS IN THE CRIMINAL JUSTICE SYSTEM. 

FOR THE MOST PART, THE JUVENILE JUSTICE SYSTEM RESTS ON MORE
DETERMINISTIC ASSUMPTIONS.  REPREHENSIBLE ACTS BY JUVENILES ARE NOT
DEEMED THE CONSEQUENCE OF MATURE AND MALEVOLENT CHOICE BUT OF
ENVIRONMENTAL PRESSURES (OR LACK OF THEM) OR OF OTHER FORCES BEYOND
THEIR CONTROL.  HENCE THE STATE LEGISLATIVE JUDGMENT NOT TO STIGMATIZE
THE JUVENILE DELINQUENT BY BRANDING HIM A CRIMINAL; HIS CONDUCT IS NOT
DEEMED SO BLAMEWORTHY THAT PUNISHMENT IS REQUIRED TO DETER HIM OR
OTHERS.  COERCIVE MEASURES, WHERE EMPLOYED, ARE CONSIDERED NEITHER
RETRIBUTION NOR PUNISHMENT.  SUPERVISION OR CONFINEMENT IS AIMED AT
REHABILITATION, NOT AT CONVINCING THE JUVENILE OF HIS ERROR SIMPLY BY
IMPOSING PAINS AND PENALTIES.  NOR IS THE PURPOSE TO MAKE THE JUVENILE
DELINQUENT AN OBJECT LESSON FOR OTHERS, WHATEVER HIS OWN MERITS OR
DEMERITS MAY BE.  A TYPICAL DISPOSITION IN THE JUVENILE COURT WHERE
DELINQUENCY IS ESTABLISHED MAY AUTHORIZE CONFINEMENT UNTIL AGE 21, BUT
IT WILL LAST NO LONGER AND WITHIN THAT PERIOD WILL LAST ONLY SO LONG AS
HIS BEHAVIOR DEMONSTRATES THAT HE REMAINS AN UNACCEPTABLE RISK IF
RETURNED TO HIS FAMILY.  NOR IS THE AUTHORIZATION FOR CUSTODY UNTIL 21
ANY MEASURE OF THE SERIOUSNESS OF THE PARTICULAR ACT THAT THE JUVENILE
HAS PERFORMED. 

AGAINST THIS BACKGROUND AND IN LIGHT OF THE DISTINCTIVE PURPOSE OF
REQUIRING JURIES IN CRIMINAL CASES, I AM SATISFIED WITH THE COURT'S
HOLDING.  TO THE EXTENT THAT THE JURY IS A BUFFER TO THE CORRUPT OR
OVERZEALOUS PROSECUTOR IN THE CRIMINAL LAW SYSTEM, THE DISTINCTIVE
INTAKE POLICIES AND PROCEDURES OF THE JUVENILE COURT SYSTEM TO A GREAT
EXTENT OBVIATE THIS IMPORTANT FUNCTION OF THE JURY.  AS FOR THE
NECESSITY TO GUARD AGAINST JUDICIAL BIAS, A SYSTEM ESCHEWING
BLAMEWORTHINESS AND PUNISHMENT FOR EVIL CHOICE IS ITSELF AN OPERATIVE
FORCE AGAINST PREJUDICE AND SHORT-TEMPERED JUSTICE.  NOR WHERE
JUVENILES ARE INVOLVED IS THERE THE SAME OPPORTUNITY FOR CORRUPTION TO
THE JUVENILE'S DETRIMENT OR THE SAME TEMPTATION TO USE THE COURTS FOR
POLITICAL ENDS. 

NOT ONLY ARE THOSE RISKS THAT MANDATE JURIES IN CRIMINAL CASES OF
LESSER MAGNITUDE IN JUVENILE COURT ADJUDICATIONS, BUT THE CONSEQUENCES
OF ADJUDICATION ARE LESS SEVERE THAN THOSE FLOWING FROM VERDICTS OF
CRIMINAL GUILT.  THIS IS PLAINLY SO IN THEORY, AND IN PRACTICE THERE
REMAINS A SUBSTANTIAL GULF BETWEEN CRIMINAL GUILT AND DELINQUENCY,
WHATEVER THE FAILINGS OF THE JUVENILE COURT IN PRACTICE MAY BE.
MOREOVER, TO THE EXTENT THAT CURRENT UNHAPPINESS WITH JUVENILE COURT
PERFORMANCE RESTS ON DISSATISFACTION WITH THE VAGUE AND OVERBROAD
GROUNDS FOR DELINQUENCY ADJUDICATIONS, WITH FAULTY JUDICIAL CHOICE AS
TO DISPOSITION AFTER ADJUDICATION, OR WITH THE RECORD OF REHABILITATIVE
CUSTODY, WHETHER INSTITUTIONAL OR PROBATIONARY, THESE SHORTCOMINGS ARE
IN NO WAY MITIGATED BY PROVIDING A JURY AT THE ADJUDICATIVE STAGE. 

FOR ME THERE REMAIN DIFFERENCES OF SUBSTANCE BETWEEN CRIMINAL AND
JUVENILE COURTS.  THEY ARE QUITE ENOUGH FOR ME TO HOLD THAT A JURY IS
NOT REQUIRED IN THE LATTER.  OF COURSE, THERE ARE STRONG ARGUMENTS THAT
JURIES ARE DESIRABLE WHEN DEALING WITH THE YOUNG, AND STATES ARE FREE
TO USE JURIES IF THEY CHOOSE.  THEY ARE ALSO FREE, IF THEY EXTEND
CRIMINAL COURT SAFEGUARDS TO JUVENILE COURT ADJUDICATIONS, FRANKLY TO
EMBRACE CONDEMNATION, PUNISHMENT, AND DETERRENCE AS PERMISSIBLE AND
DESIRABLE ATTRIBUTES OF THE JUVENILE JUSTICE SYSTEM.  BUT THE DUE
PROCESS CLAUSE NEITHER COMPELS NOR INVITES THEM TO DO SO. 

MR. JUSTICE BRENNAN, CONCURRING IN THE JUDGMENT IN NO. 322 AND
DISSENTING IN NO. 128. 

I AGREE WITH THE PLURALITY OPINION'S CONCLUSION THAT THE PROCEEDINGS
BELOW IN THESE CASES WERE NOT "CRIMINAL PROSECUTIONS" WITHIN THE
MEANING OF THE SIXTH AMENDMENT.  FOR ME, THEREFORE, THE QUESTION IN
THESE CASES IS WHETHER JURY TRIAL IS AMONG THE "ESSENTIALS OF DUE
PROCESS AND FAIR TREATMENT," IN RE GAULT, 387 U.S. 1, 30 (1967),
REQUIRED DURING THE ADJUDICATION OF A CHARGE OF DELINQUENCY BASED UPON
ACTS THAT WOULD CONSTITUTE A CRIME IF ENGAGED IN BY AN ADULT.  SEE IN
RE WINSHIP, 397 U.S. 358, 359 AND N. 1 (1970).  THIS DOES NOT, HOWEVER,
MEAN THAT THE INTERESTS PROTECTED BY THE SIXTH AMENDMENT'S GUARANTEE OF
JURY TRIAL IN ALL "CRIMINAL PROSECUTIONS" ARE OF NO IMPORTANCE IN THE
CONTEXT OF THESE CASES.  THE SIXTH AMENDMENT, WHERE APPLICABLE,
COMMANDS THAT THESE INTERESTS BE PROTECTED BY A PARTICULAR PROCEDURE,
THAT IS, TRIAL BY JURY.  THE DUE PROCESS CLAUSE COMMANDS, NOT A
PARTICULAR PROCEDURE, BUT ONLY A RESULT:  IN MY BROTHER BLACKMUN'S
WORDS, "FUNDAMENDAL FAIRNESS . . . (IN) FACTFINDING."  IN THE CONTEXT
OF THESE AND SIMILAR JUVENILE DELINQUENCY PROCEEDINGS, WHAT THIS MEANS
IS THAT THE STATES ARE NOT BOUND TO PROVIDE JURY TRIALS ON DEMAND SO
LONG AS SOME OTHER ASPECT OF THE PROCESS ADEQUATELY PROTECTS THE
INTERESTS THAT SIXTH AMENDMENT JURY TRIALS ARE INTENDED TO SERVE.  /1/ 

IN MY VIEW, THEREFORE, THE DUE PROCESS QUESTION CANNOT BE DECIDED
UPON THE BASIS OF GENERAL CHARACTERISTICS OF JUVENILE PROCEEDINGS, BUT
ONLY IN TERMS OF THE ADEQUACY OF A PARTICULAR STATE PROCEDURE TO
"PROTECT THE (JUVENILE) FROM OPPRESSION BY THE GOVERNMENT," SINGER V.
UNITED STATES, 380 U.S. 24, 31 (1965), AND TO PROTECT HIM AGAINST "THE
COMPLAINT, BIASED, OR ECCENTRIC JUDGE."  DUNCAN V. LOUISIANA, 391 U.S.
145, 156 (1968). 

EXAMINED IN THIS LIGHT, I FIND NO DEFECT IN THE.PENNSYLVANIA CASES
BEFORE US.  THE AVAILABILITY OF TRIAL BY JURY ALLOWS AN ACCUSED TO
PROTECT HIMSELF AGAINST POSSIBLE OPPRESSION BY WHAT IS IN ESSENCE AN
APPEAL TO THE COMMUNITY CONSCIENCE, AS EMBODIED IN THE JURY THAT HEARS
HIS CASE.  TO SOME EXTENT, HOWEVER, A SIMILAR PROTECTION MAY BE
OBTAINED WHEN AN ACCUSED MAY IN ESSENCE APPEAL TO THE COMMUNITY AT
LARGE, BY FOCUSING PUBLIC ATTENTION UPON THE FACTS OF HIS TRIAL,
EXPOSING IMPROPER JUDICIAL BEHAVIOR TO PUBLIC VIEW, AND OBTAINING, IF
NECESSARY, EXECUTIVE REDRESS THROUGH THE MEDIUM OF PUBLIC INDIGNATION. 
OF COURSE, THE CONSTITUTION, IN THE CONTEXT OF ADULT CRIMINAL TRIALS,
HAS REJECTED THE NOTION THAT PUBLIC TRIAL IS AN ADEQUATE SUBSTITUTE FOR
TRIAL BY JURY IN SERIOUS CASES.  BUT IN THE CONTEXT OF JUVENILE
DELINQUENCY PROCEEDINGS, I CANNOT SAY THAT IT IS BEYOND THE COMPETENCE
OF A STATE TO CONCLUDE THAT JUVENILES WHO FEAR THAT DELINQUENCY
PROCEEDINGS WILL MASK JUDICIAL OPPRESSION MAY OBTAIN ADEQUATE
PROTECTION BY FOCUSING COMMUNITY ATTENTION UPON THE TRIAL OF THEIR
CASES.  FOR, HOWEVER MUCH THE JUVENILE SYSTEM MAY HAVE FAILED IN
PRACTICE, ITS VERY EXISTENCE AS AN OSTENSIBLY BENEFICENT AND
NONCRIMINAL PROCESS FOR THE CARE AND GUIDANCE OF YOUNG PERSONS
DEMONSTRATES THE EXISTENCE OF THE COMMUNITY'S SYMPATHY AND CONCERN FOR
THE YOUNG.  JUVENILES ABLE TO BRING THE COMMUNITY'S ATTENTION TO BEAR
UPON THEIR TRIALS MAY THEREFORE DRAW UPON A RESERVOIR OF PUBLIC CONCERN
UNAVAILABLE TO THE ADULT CRIMINAL DEFENDANT.  IN THE PENNSYLVANIA CASES
BEFORE US, THERE APPEARS TO BE NO STATUTORY BAN UPON ADMISSION OF THE
PUBLIC TO JUVENILE TRIALS.  /2/  APPELLANTS THEMSELVES, WITHOUT
CONTRADICTION, ASSERT THAT "THE PRESS IS GENERALLY ADMITTED" TO
JUVENILE DELINQUENCY PROCEEDINGS IN PHILADELPHIA.  /3/  MOST IMPORTANT,
THE RECORD IN THESE CASES IS BARE OF ANY INDICATION THAT ANY PERSON
WHOM APPELLANTS SOUGHT TO HAVE ADMITTED TO THE COURTROOM WAS EXCLUDED. 
IN THESE CIRCUMSTANCES, I AGREE THAT THE JUDGMENT IN NO. 322 MUST BE
AFFIRMED. 

THE NORTH CAROLINA CASES, HOWEVER, PRESENT A DIFFERENT SITUATION. 
NORTH CAROLINA LAW EITHER PERMITS OR REQUIRES EXCLUSION OF THE GENERAL
PUBLIC FROM JUVENILE TRIALS.  /4/  IN THE CASES BEFORE US, THE TRIAL
JUDGE "ORDERED THE GENERAL PUBLIC EXCLUDED FROM THE HEARING ROOM AND
STATED THAT ONLY OFFICERS OF THE COURT, THE JUVENILES, THEIR PARENTS OR
GUARDIANS, THEIR ATTORNEY AND WITNESSES WOULD BE PRESENT FOR THE
HEARING," IN RE BURRUS, 4 N.C.APP.  523, 525, 167 S.E.2D 454, 456
(1969), NOTWITHSTANDING PETITIONERS' REPEATED DEMAND FOR A PUBLIC
HEARING.  THE CASES THEMSELVES, WHICH ARISE OUT OF A SERIES OF
DEMONSTRATIONS BY BLACK ADULTS AND JUVENILES WHO BELIEVED THAT THE HYDE
COUNTY, NORTH CAROLINA, SCHOOL SYSTEM UNLAWFULLY DISCRIMINATED AGAINST
BLACK SCHOOLCHILDREN, PRESENT A PARADIGM OF THE CIRCUMSTANCES IN WHICH
THERE MAY BE A SUBSTANTIAL "TEMPTATION TO USE THE COURTS FOR POLITICAL
ENDS."  OPINION OF MR. JUSTICE WHITE, ANTE, AT 552.  AND FINALLY,
NEITHER THE OPINIONS SUPPORTING THE JUDGMENT NOR THE RESPONDENT IN NO.
128 HAS POINTED TO ANY FEATURE OF NORTH CAROLINA'S JUVENILE PROCEEDINGS
THAT COULD SUBSTITUTE FOR PUBLIC OR JURY TRIAL IN PROTECTING THE
PETITIONERS AGAINST MISUSE OF THE JUDICIAL PROCESS.  CF. DUNCAN V.
LOUISIANA, 391 U.S. 145, 188, 193 (1968) (HARLAN, J., DISSENTING)
(AVAILABILITY OF RESORT TO "THE POLITICAL PROCESS" IS AN ALTERNATIVE
PERMITTING STATES TO DISPENSE WITH JURY TRIALS).  ACCORDINGLY, I WOULD
REVERSE THE JUDGMENT IN NO. 128. 

/1/  "A CRIMINAL PROCESS WHICH WAS FAIR AND EQUITABLE BUT USED NO
JURIES IS EASY TO IMAGINE.  IT WOULD MAKE USE OF ALTERNATIVE GUARANTEES
AND PROTECTIONS WHICH WOULD SERVE THE PURPOSES THAT THE JURY SERVES IN
THE ENGLISH AND AMERICAN SYSTEMS."  DUNCAN V. LOUISIANA, 391 U.S. 145,
150 N. 14 (1968).  THIS CONCLUSION IS, OF COURSE, INESCAPABLE IN LIGHT
OF OUR DECISIONS THAT PETTY CRIMINAL OFFENSES MAY BE TRIED WITHOUT A
JURY NOTWITHSTANDING THE DEFENDANT'S REQUEST.  E.G., DISTRICT OF
COLUMBIA V. CLAWANS, 300 U.S. 617 (1937). 

/2/  THE GENERALLY APPLICABLE STATUTE, PA. STAT. ANN., TIT. 11, SEC.
245 (1965), MERELY PROVIDES THAT JUVENILE PROCEEDINGS SHALL BE
"SEPARATE" FROM REGULAR COURT BUSINESS.  PA. STAT. ANN., TIT. 11, SEC.
269-402 (1965), REQUIRING EXCLUSION OF THE GENERAL PUBLIC FROM JUVENILE
HEARINGS, APPLIES ONLY TO ALLEGHENY COUNTY.  BOTH OF THE INSTANT CASES
WERE TRIED IN PHILADELPHIA COUNTY. 

/3/  "THE JUDGES OF THE PHILADELPHIA JUVENILE COURT EXERCISE VARYING
DEGREES OF CONTROL OVER ADMISSION TO THE COURTROOM, BUT THE PRESS IS
GENERALLY ADMITTED . . . " BRIEF FOR APPELLANTS 9 N. 9. 

/4/  N.C. GEN. STAT. SEC. 110-24 (1966), IN FORCE AT THE TIME OF
THESE TRIALS, APPEARS ON ITS FACE TO PERMIT BUT NOT REQUIRE SUCH
EXCLUSION, AS DOES IDENTICAL LANGUAGE IN THE PRESENT STATUTE, N.C. GEN.
STAT. SEC. 7A-285 (1969).  THE NORTH CAROLINA SUPREME COURT IN THE
PRESENT CASES HAS READ THESE STATUTES AS A LEGISLATIVE DETERMINATION
"THAT A PUBLIC HEARING IS (NOT) IN THE BEST INTEREST OF THE YOUTHFUL
OFFENDER."  IN RE BURRUS, 275 N.C. 517, 530, 169 S.E.2D 879, 887
(1969). 

MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENTS. 

IF I FELT MYSELF CONSTRAINED TO FOLLOW DUNCAN V. LOUISIANA, 391 U.S.
145 (1968), WHICH EXTENDED THE SIXTH AMENDMENT RIGHT OF JURY TRIAL TO
THE STATES, I WOULD HAVE GREAT DIFFICULTY, UPON THE PREMISE SEEMINGLY
ACCEPTED IN MY BROTHER BLACKMUN'S OPINION, IN HOLDING THAT THE JURY
TRIAL RIGHT DOES NOT EXTEND TO STATE JUVENILE PROCEEDINGS.  THAT
PREMISE IS THAT JUVENILE DELINQUENCY PROCEEDINGS HAVE IN PRACTICE
ACTUALLY BECOME IN MANY, IF NOT ALL, RESPECTS CRIMINAL TRIALS.  BUT SEE
MY CONCURRING AND DISSENTING OPINION IN IN RE GAULT, 387 U.S. 1, 65
(1967).  IF THAT PREMISE BE CORRECT, THEN I DO NOT SEE WHY, GIVEN
DUNCAN, JUVENILES AS WELL AS ADULTS WOULD NOT BE CONSTITUTIONALLY
ENTITLED TO JURY TRIALS, SO LONG AS JUVENILE DELINQUENCY SYSTEMS ARE
NOT RESTRUCTED TO FIT THEIR ORIGINAL PURPOSE.  WHEN THAT TIME COMES I
WOULD HAVE NO DIFFICULTY IN AGREEING WITH MY BROTHER BLACKMUN, AND
INDEED WITH MY BROTHER WHITE, THE AUTHOR OF DUNCAN, THAT JUVENILE
DELINQUENCY PROCEEDINGS ARE BEYOND THE PALE OF DUNCAN. 

I CONCUR IN THE JUDGMENTS IN THESE CASES, HOWEVER, ON THE GROUND
THAT CRIMINAL JURY TRIALS ARE NOT CONSTITUTIONALLY REQUIRED OF THE
STATES, EITHER AS A MATTER OF SIXTH AMENDMENT LAW OR DUE PROCESS.  SEE
MY CONCURRING AND DISSENTING OPINION IN DUNCAN AND MY SEPARATE OPINION
IN WILLIAMS V. FLORIDA, 399 U.S. 78, 118-119 (1970). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING. 

THESE CASES FROM PENNSYLVANIA AND NORTH CAROLINA PRESENT THE ISSUE
OF THE RIGHT TO A JURY TRIAL FOR OFFENDERS CHARGED IN JUVENILE COURT
AND FACING A POSSIBLE INCARCERATION UNTIL THEY REACH THEIR MAJORITY.  I
BELIEVE THE GUARANTEES OF THE BILL OF RIGHTS, MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH AMENDMENT, REQUIRE A JURY TRIAL. 

IN THE PENNSYLVANIA CASES ONE OF THE APPELLANTS WAS CHARGED WITH
ROBBERY (PA. STAT. ANN., TIT. 18, SEC. 4704 (1963), LARCENY (PA. STAT.
ANN., TIT. 18, SEC. 4807), AND RECEIVING STOLEN GOODS (PA. STAT. ANN.,
TIT. 18, SEC. 4817) AS ACTS OF JUVENILE DELINQUENCY.  PA. STAT. ANN.,
TIT. 11, SEC. 246 (1965).  HE WAS FOUND A DELINQUENT AND PLACED ON
PROBATION.  THE OTHER APPELLANT WAS CHARGED WITH ASSAULT AND BATTERY ON
A POLICE OFFICER (PA. STAT. ANN., TIT. 18, SEC. 4708) AND CONSPIRACY
(PA. STAT. ANN., TIT. 18, SEC. 4302) AS ACTS OF JUVENILE DELINQUENCY. 
ON A FINDING OF DELINQUENCY HE WAS COMMITTED TO A YOUTH CENTER. 
DESPITE THE FACT THAT THE TWO APPELLANTS, AGED 15 AND 16, WOULD FACE
POTENTIAL INCARCERATION UNTIL THEIR MAJORITY, PA. STAT. ANN., TIT. 11,
SEC. 250, THEY WERE DENIED A JURY TRIAL. 

IN THE NORTH CAROLINA CASES PETITIONERS ARE STUDENTS, FROM 11 TO 15
YEARS OF AGE, WHO WERE CHARGED UNDER ONE OF THREE CRIMINAL STATUTES:
(1) "DISORDERLY CONDUCT" IN A PUBLIC BUILDING, N.C. GEN. STAT. SEC. 14
132 (1969); (2) "WILFUL" INTERRUPTION OR DISTURBANCE OF A PUBLIC OR
PRIVATE SCHOOL, N.C. GEN. STAT. SEC. 14-273; OR (3) OBSTRUCTING THE
FLOW OF TRAFFIC ON A HIGHWAY OR STREET, N.C. GEN. STAT. SEC. 20-174.1
(1965 AND SUPP. 1969).     CONVICTION OF EACH OF THESE CRIMES WOULD
SUBJECT A PERSON, WHETHER JUVENILE OR ADULT, TO IMPRISONMENT IN A STATE
INSTITUTION.  IN THE CASE OF THESE STUDENTS THE POSSIBLE TERM WAS SIX
TO 10 YEARS; IT WOULD BE COMPUTED FOR THE PERIOD UNTIL AN INDIVIDUAL
REACHED THE AGE OF 21.  EACH ASKED FOR A JURY TRIAL WHICH WAS DENIED. 
THE TRIAL JUDGE STATED THAT THE HEARINGS WERE JUVENILE HEARINGS, NOT
CRIMINAL TRIALS.  BUT THE ISSUE IN EACH CASE WAS WHETHER THEY HAD
VIOLATED A STATE CRIMINAL LAW.  THE TRIAL JUDGE FOUND IN EACH CASE THAT
THE JUVENILE HAD COMMITTED "AN ACT FOR WHICH AN ADULT MAY BE PUNISHED
BY LAW" AND HELD IN EACH CASE THAT THE ACTS OF THE JUVENILE VIOLATED
ONE OF THE CRIMINAL STATUTES CITED ABOVE.  THE TRIAL JUDGE THEREUPON
ORDERED EACH JUVENILE TO BE COMMITTED TO THE STATE INSTITUTION FOR THE
CARE OF DELINQUENTS AND THEN PLACED EACH ON PROBATION FOR TERMS FROM 12
TO 24 MONTHS. 

WE HELD IN IN RE GAULT, 387 U.S. 1, 13, THAT "NEITHER THE FOURTEENTH
AMENDMENT NOR THE BILL OF RIGHTS IS FOR ADULTS ALONE."  AS WE NOTED IN
THAT CASE, THE JUVENILE COURT MOVEMENT WAS DESIGNED TO AVOID PROCEDURES
TO ASCERTAIN WHETHER THE CHILD WAS "GUILTY" OR "INNOCENT" BUT TO BRING
TO BEAR ON THESE PROBLEMS A "CLINICAL" APPROACH.  ID., AT 15, 16.  IT
IS, OF COURSE, NOT OUR TASK TO DETERMINE AS A MATTER OF POLICY WHETHER
A "CLINICAL" OR "PUNITIVE" APPROACH TO THESE PROBLEMS SHOULD BE TAKEN
BY THE STATES.  BUT WHERE A STATE USES ITS JUVENILE COURT PROCEEDINGS
TO PROSECUTE A JUVENILE FOR A CRIMINAL ACT AND TO ORDER "CONFINEMENT"
UNTIL THE CHILD REACHES 21 YEARS OF AGE OR WHERE THE CHILD AT THE
THRESHOLD OF THE PROCEEDINGS FACES THAT PROSPECT, THEN HE IS ENTITLED
TO THE SAME PROCEDURAL PROTECTION AS AN ADULT.  AS MR. JUSTICE BLACK
SAID IN IN RE GAULT, SUPRA, AT 61 (CONCURRING): 

     "WHERE A PERSON, INFANT OR ADULT, CAN BE SEIZED BY THE STATE,

  CHARGED, AND CONVICTED FOR VIOLATING A STATE CRIMINAL LAW, AND

  THEN ORDERED BY THE STATE TO BE CONFINED FOR SIX YEARS, I THINK

  THE CONSTITUTION REQUIRES THAT HE BE TRIED IN ACCORDANCE WITH THE

  GUARANTEES OF ALL THE PROVISIONS OF THE BILL OF RIGHTS MADE

  APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT. 

  UNDOUBTEDLY THIS WOULD BE TRUE OF AN ADULT DEFENDANT, AND IT

  WOULD BE A PLAIN DENIAL OF EQUAL PROTECTION OF THE LAWS-- AN

  INVIDIOUS DISCRIMINATION-- TO HOLD THAT OTHERS SUBJECT TO HEAVIER

  PUNISHMENTS COULD, BECAUSE THEY ARE CHILDREN, BE DENIED THESE

  SAME CONSTITUTIONAL SAFEGUARDS." 

JUST AS COURTS HAVE SOMETIMES CONFUSED DELINQUENCY WITH CRIME, SO
HAVE LAW ENFORCEMENT OFFICIALS TREATED JUVENILES NOT AS DELINQUENTS BUT
AS CRIMINALS.  AS NOTED IN THE PRESIDENT'S CRIME COMMISSION REPORT: 

"IN 1965, OVER 100,000 JUVENILES WERE CONFINED IN ADULT
INSTITUTIONS.  PRESUMABLY MOST OF THEM WERE THERE BECAUSE NO SEPARATE
JUVENILE DETENTION FACILITIES EXISTED.  NONETHELESS, IT IS CLEARLY
UNDESIRABLE THAT JUVENILES BE CONFINED WITH ADULTS."  PRESIDENT'S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, CHALLENGE
OF CRIME IN A FREE SOCIETY 179 (1967). 

EVEN WHEN JUVENILES ARE NOT INCARCERATED WITH ADULTS THE SITUATION
MAY BE NO BETTER.  ONE PENNSYLVANIA CORRECTIONAL INSTITUTION FOR
JUVENILES IS A BRICK BUILDING WITH BARRED WINDOWS, LOCKED STEEL DOORS,
A CYCLONE FENCE TOPPED WITH BARBED WIRE, AND GUARD TOWERS.  A FORMER
JUVENILE JUDGE DESCRIBED IT AS "A MAXIMUM SECURITY PRISON FOR ADJUDGED
DELINQUENTS."  IN RE BETHEA, 215 PA.SUPER.  75, 76, 257 A.2D 368, 369. 

IN THE PRESENT CASES IMPRISONMENT OR CONFINEMENT UP TO 10 YEARS WAS
POSSIBLE FOR ONE CHILD AND EACH FACED AT LEAST A POSSIBLE FIVE-YEAR
INCARCERATION.  NO ADULT COULD BE DENIED A JURY TRIAL IN THOSE
CIRCUMSTANCES.  DUNCAN V. LOUISIANA, 391 U.S. 145, 162.  THE FOURTEENTH
AMENDMENT, WHICH MAKES TRIAL BY JURY PROVIDED IN THE SIXTH AMENDMENT
APPLICABLE TO THE STATES, SPEAKS OF DENIAL OF RIGHTS TO "ANY PERSON,"
NOT DENIAL OF RIGHTS TO "ANY ADULT PERSON"; AND WE HAVE HELD INDEED
THAT WHERE A JUVENILE IS CHARGED WITH AN ACT THAT WOULD CONSTITUTE A
CRIME IF COMMITTED BY AN ADULT, HE IS ENTITLED TO BE TRIED UNDER A
STANDARD OF PROOF BEYOND A REASONABLE DOUBT.  IN RE WINSHIP, 397 U.S.
358. 

IN DEBACKER V. BRAINARD, 396 U.S. 28, 33, 35, MR. JUSTICE BLACK AND
I DISSENTED FROM A REFUSAL TO GRANT A JUVENILE, WHO WAS CHARGED WITH
FORGERY, A JURY TRIAL MERELY BECAUSE THE CASE WAS TRIED BEFORE DUNCAN
V. LOUISIANA, 391 U.S. 145, WAS DECIDED.  MR. JUSTICE BLACK, AFTER
NOTING THAT A JUVENILE BEING CHARGED WITH A CRIMINAL ACT WAS ENTITLED
TO CERTAIN CONSTITUTIONAL SAFEGUARDS, VIZ., NOTICE OF THE ISSUES,
BENEFIT OF COUNSEL, PROTECTION AGAINST COMPULSORY SELF-INCRIMINATION,
AND CONFRONTATION OF THE WITNESSES AGAINST HIM, ADDED: 

"I CAN SEE NO BASIS WHATSOEVER IN THE LANGUAGE OF THE CONSTITUTION
FOR ALLOWING PERSONS LIKE APPELLANT THE BENEFIT OF THOSE RIGHTS AND YET
DENYING THEM A JURY TRIAL, A RIGHT WHICH IS SURELY ONE OF THE
FUNDAMENTAL ASPECTS OF CRIMINAL JUSTICE IN THE ENGLISH-SPEAKING
WORLD."  396 U.S.,AT 34. 

I ADDED THAT BY REASON OF THE SIXTH AND FOURTEENTH AMENDMENTS THE
JUVENILE IS ENTITLED TO A JURY TRIAL. 

"AS A MATTER OF RIGHT WHERE THE DELINQUENCY CHARGED IS AN OFFENSE
THAT, IF THE PERSON WERE AN ADULT, WOULD BE A CRIME TRIABLE BY JURY. 
SUCH IS THIS CASE, FOR BEHIND THE FACADE OF DELINQUENCY IS THE CRIME OF
FORGERY."  ID., AT 35. 

PRACTICAL ASPECTS OF THESE PROBLEMS ARE URGED AGAINST ALLOWING A
JURY TRIAL IN THESE CASES.  /1/  THEY HAVE BEEN ANSWERED BY JUDGE
DECIANTIS OF THE FAMILY COURT OF PROVIDENCE, RHODE ISLAND, IN A CASE
ENTITLED IN THE MATTER OF MCCLOUD, DECIDED JANUARY 15, 1971.  A
JUVENILE WAS CHARGED WITH THE RAPE OF A 17-YEAR-OLD FEMALE AND JUDGE
DECIANTIS GRANTED A MOTION FOR A JURY TRIAL IN AN OPINION, A PART OF
WHICH I HAVE ATTACHED AS AN APPENDIX TO THIS DISSENT.  HE THERE
CONCLUDES THAT "THE REAL TRAUMATIC" EXPERIENCE OF INCARCERATION WITHOUT
DUE PROCESS IS "THE FEELING OF BEING DEPRIVED OF BASIC RIGHTS."  HE
ADDS: 

"THE CHILD WHO FEELS THAT HE HAS BEEN DEALT WITH FAIRLY AND NOT
MERELY EXPEDIENTLY OR AS SPEEDILY AS POSSIBLE WILL BE A BETTER PROSPECT
FOR REHABILITATION.  MANY OF THE CHILDREN WHO COME BEFORE THE COURT
COME FROM BROKEN HOMES, FROM THE GHETTOS; THEY OFTEN SUFFER FROM LOW
SELF-ESTEEM;AND THEIR BEHAVIOR IS FREQUENTLY A SYMPTOM OF THEIR OWN
FEELINGS OF INADEQUACY.  TRAUMATIC EXPERIENCES OF DENIAL OF BASIC
RIGHTS ONLY ACCENTUATE THE PAST DEPRIVATION AND CONTRIBUTE TO THE
PROBLEM.  THUS, A GENERAL SOCIETAL ATTITUDE OF ACCEPTANCE OF THE
JUVENILE AS A PERSON ENTITLED TO THE SAME PROTECTION AS AN ADULT MAY BE
THE TRUE BEGINNING OF THE REHABILITATIVE PROCESS." 

JUDGE DECIANTIS GOES ON TO SAY THAT "(TRIAL BY JURY WILL PROVIDE THE
CHILD WITH A SAFEGUARD AGAINST BEING PREJUDGED" BY A JUDGE WHO MAY WELL
BE PREJUDICED BY REPORTS ALREADY SUBMITTED TO HIM BY THE POLICE OR
CASEWORKERS IN THE CASE.  INDEED THE CHILD, THE SAME AS THE ADULT, IS
IN THE CATEGORY OF THOSE DESCRIBED IN THE MAGNA CARTA: 

     "NO FREEMAN MAY BE . . . IMPRISONED . . . EXCEPT BY THE LAWFUL

  JUDGMENT OF HIS PEERS, OR BY THE LAW OF THE LAND." 

THESE CASES SHOULD BE REMANDED FOR TRIAL BY JURY ON THE CRIMINAL
CHARGES FILED AGAINST THESE YOUNGSTERS. 

/1/  THE PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA AND
THE NEIGHBORHOOD LEGAL SERVICES PROGRAM OF WASHINGTON, D.C., HAVE FILED
A BRIEF AMICUS IN WHICH THE RESULTS OF A SURVEY OF JURY TRIALS IN
DELINQUENCY CASES IN THE 10 STATES REQUIRING JURY TRIALS PLUS THE
DISTRICT OF COLUMBIA ARE SET FORTH.  THE CITIES SELECTED WERE MOSTLY
LARGE METROPOLITAN AREAS.  THIRTY JUVENILE COURTS PROCESSING ABOUT
75,000 JUVENILE CASES A YEAR WERE CANVASSED: 

"(WE DISCOVERED THAT DURING THE PAST FIVE AND A HALF YEARS, IN 22
OUT OF 26 COURTS SURVEYED, CUMULATIVE REQUESTS FOR JURY TRIALS TOTALED
15 OR LESS.  IN THE REMAINING FIVE COURTS IN OUR SAMPLE, STATISTICS
WERE UNAVAILABLE.  DURING THE SAME PERIOD, IN 26 OUT OF 29 COURTS THE
CUMULATIVE NUMBER OF JURY TRIALS ACTUALLY HELD NUMBERED 15 OR LESS,
WITH STATISTICS UNAVAILABLE FOR TWO COURTS IN OUR SAMPLE.  FOR EXAMPLE,
IN TULSA, OKLAHOMA, COUNSEL IS PRESENT IN 100% OF DELINQUENCY CASES,
BUT ONLY ONE JURY TRIAL HAS BEEN REQUESTED AND HELD DURING THE PAST
FIVE AND ONE-HALF YEARS.  IN THE JUVENILE COURT OF FORT WORTH, TEXAS,
COUNSEL IS ALSO PRESENT IN 100% OF THE CASES, AND ONLY TWO JURY TRIALS
HAVE BEEN REQUESTED SINCE 1967.  THE JUVENILE COURT IN DETROIT,
MICHIGAN, REPORTS THAT COUNSEL IS APPOINTED IN 70-80% OF ITS
DELINQUENCY CASES, BUT THUS FAR IN 1970, IT HAS HAD ONLY FOUR REQUESTS
FOR A JURY.  BETWEEN 1965 AND 1969 REQUESTS FOR JURIES WERE REPORTED AS
'VERY VEW.' 

"IN ONLY FOUR JUVENILE COURTS IN OUR SAMPLE HAS THERE CLEARLY BEEN A
TOTAL DURING THE PAST FIVE AND ONE-HALF YEARS OF MORE THAN 15 JURY
TRIAL REPORTS AND/OR MORE THAN 15 SUCH TRIALS HELD." 

THE FOUR COURTS SHOWING MORE THAN 15 REQUESTS FOR JURY TRIALS WERE
DENVER, HOUSTON, MILWAUKEE, AND WASHINGTON, D.C.

        APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING 

DECIANTIS, J.:  THE DEFENDANT, WHO WILL HEREINAFTER BE REFERRED TO
AS A JUVENILE, ON THE SIXTH DAY OF SEPTEMBER, 1969, WAS CHARGED WITH
RAPE UPON A FEMALE CHILD, SEVENTEEN YEARS OLD, IN VIOLATION OF TITLE
11, CHAPTER 37, SECTION 1, OF THE GENERAL LAWS OF 1956. 

        .          .          .   .

        TRAUMA 

THE FACT IS THAT THE PROCEDURES WHICH ARE NOW FOLLOWED IN JUVENILE
CASES ARE FAR MORE TRAUMATIC THAN THE POTENTIAL EXPERIENCE OF A JURY
TRIAL.  WHO CAN SAY THAT A BOY WHO IS ARRESTED AND HANDCUFFED, PLACED
IN A LINEUP, TRANSPORTED IN VEHICLES DESIGNED TO CONVEY DANGEROUS
CRIMINALS, PLACED IN THE SAME KIND OF A CELL AS AN ADULT, DEPRIVED OF
HIS FREEDOM BY LODGING HIM IN AN INSTITUTION WHERE HE IS SUBJECT TO BE
TRANSFERRED TO THE STATE'S PRISON AND IN THE "HOLE" HAS NOT UNDERGONE A
TRAUMATIC EXPERIENCE? 

THE EXPERIENCE OF A TRIAL WITH OR WITHOUT A JURY IS MEANT TO BE
IMPRESSIVE AND MEANINGFUL.  THE FACT THAT A JUVENILE REALIZES THAT HIS
CASE WILL BE DECIDED BY TWELVE OBJECTIVE CITIZENS WOULD ALLOW THE COURT
TO RETAIN ITS MEANINGFULNESS WITHOUT CAUSING ANY MORE TRAUMA THAN A
TRIAL BEFORE A JUDGE WHO PERHAPS HAS HEARD OTHER CASES INVOLVING THE
SAME JUVENILE IN THE PAST AND MAY BE INFLUENCED BY THOSE PRIOR
CONTACTS.  TO AGREE THAT A JURY TRIAL WOULD EXPOSE A JUVENILE TO A
TRAUMATIC EXPERIENCE IS TO LOSE SIGHT OF THE REAL TRAUMATIC EXPERIENCE
OF INCARCERATION WITHOUT DUE PROCESS.  THE REAL TRAUMATIC EXPERIENCE IS
THE FEELING OF BEING DEPRIVED OF BASIC RIGHTS.  (IN) IN THE MATTER OF
REIS, /1/  THIS COURT INDICATED THE INADEQUACIES OF THE PROCEDURE UNDER
WHICH OUR COURT OPERATES.  A JUDGE WHO RECEIVES FACTS OF A CASE FROM
THE POLICE AND APPROVES THE FILING OF A PETITION BASED UPON THOSE FACTS
MAY BE PLACED IN THE UNTENABLE POSITION OF HEARING A CHARGE WHICH HE
HAS APPROVED.  HIS DUTY IS TO ADJUDICATE ON THE EVIDENCE INTRODUCED AT
THE HEARING AND NOT BE INVOLVED IN ANY PRE-ADJUDICATORY INVESTIGATION. 

IT IS CONTRARY TO THE FUNDAMENTAL PRINCIPLES OF DUE PROCESS FOR THE
COURT TO BE COMPELLED, AS IT IS IN THIS STATE, TO ACT AS A ONE-MAN
GRAND JURY, THEN SIT IN JUDGMENT ON ITS OWN DETERMINATION ARISING OUT
OF THE FACTS AND PROCEEDINGS WHICH HE CONDUCTED.  THIS RESPONSIBILITY
BELONGS WITH A JURY. 

        BACKLOG 

AN ARGUMENT HAS BEEN MADE THAT TO ALLOW JURY TRIALS WOULD CAUSE A
GREAT BACKLOG OF CASES AND, ULTIMATELY, WOULD IMPAIR THE FUNCTIONING OF
THE JUVENILE COURT.  THE FACT HOWEVER IS THAT THERE IS NO MEANINGFUL
EVIDENCE THAT GRANTING THE RIGHT TO JURY TRIALS WILL IMPAIR THE
FUNCTION OF THE COURT.  SOME STATES PERMIT JURY TRIALS IN ALL JUVENILE
COURT CASES; FEW JURIES HAVE BEEN DEMANDED, AND THERE IS NO SUGGESTION
FROM THESE COURTS THAT JURY TRIALS HAVE IMPEDED THE SYSTEM OF JUVENILE
JUSTICE. 

IN COLORADO, WHERE JURY TRIALS HAVE BEEN PERMITTED BY STATUTE, JUDGE
THEODORE RUBIN OF THE DENVER JUVENILE COURT HAS INDICATED THAT JURY
TRIALS ARE AN IMPORTANT SAFEGUARD AND THAT THEY HAVE NOT IMPAIRED THE
FUNCTIONING OF THE DENVER JUVENILE COURTS.  FOR EXAMPLE, DURING THE
FIRST SEVEN MONTHS OF 1970, THE TWO DIVISIONS OF THE DENVER JUVENILE
COURT HAVE HAD FEWER THAN TWO DOZEN JURY TRIALS, IN BOTH DELINQUENCY
AND DEPENDENCY-NEGLECT CASES.  IN MICHIGAN, WHERE JUVENILES ARE ALSO
ENTITLED TO A JURY TRIAL, JUDGE LINCOLN OF THE DETROIT JUVENILE COURT
INDICATES THAT HIS COURT HAS HAD LESS THAN FIVE JURY TRIALS IN THE YEAR
1969 TO 1970. 

THE RECENT SUPREME COURT DECISION OF WILLIAMS VS FLORIDA, (399 U.S.
78) (JUNE 22, 1970), WHICH HELD THAT THE CONSTITUTIONAL RIGHT TO TRIAL
BY JURY IN CRIMINAL CASES DOES NOT REQUIRE A TWELVE-MEMBER JURY, COULD
BE IMPLEMENTED TO FACILITATE THE TRANSITION TO JURY TRIALS.  A JURY OF
LESS THAN TWELVE MEMBERS WOULD BE LESS CUMBERSOME, LESS "FORMAL," AND
LESS EXPENSIVE THAN THE REGULAR TWELVE-MEMBER JURY, AND YET WOULD
PROVIDE THE ACCUSED WITH OBJECTIVE FACT-FINDERS. 

IN FACT THE VERY ARGUMENT OF EXPEDIENCY, SUGGESTING "SUPERMARKET" OR
"ASSEMBLY-LINE" JUSTICE IS ONE OF THE MOST FORCEFUL ARGUMENTS IN FAVOR
OF GRANTING JURY TRIALS.  BY GRANTING THE JUVENILE THE RIGHT TO A JURY
TRIAL, WE WOULD, IN FACT, BE PROTECTING THE ACCUSED FROM THE JUDGE WHO
IS UNDER PRESSURE TO MOVE THE CASES, THE JUDGE WITH TOO MANY CASES AND
NOT ENOUGH TIME.  IT WILL PROVIDE A SAFEGUARD AGAINST THE JUDGE WHO MAY
BE PREJUDICED AGAINST A MINORITY GROUP OR WHO MAY BE PREJUDICED AGAINST
THE JUVENILE BROUGHT BEFORE HIM BECAUSE OF SOME PAST OCCURRENCE WHICH
WAS HEARD BY THE SAME JUDGE. 

THERE HAVE BEEN CRITICISMS THAT JUVENILE COURT JUDGES, BECAUSE OF
THEIR HEARING CASELOAD, DO NOT CAREFULLY WEIGH THE EVIDENCE IN THE
ADJUDICATORY PHASE OF THE PROCEEDINGS.  IT IS DURING THIS PHASE THAT
THE JUDGE MUST DETERMINE WHETHER IN FACT THE EVIDENCE HAS BEEN
ESTABLISHED BEYOND A REASONABLE DOUT THAT THE ACCUSED COMMITTED THE
ACTS ALLEGED IN THE PETITION.  REGARDLESS OF THE MERIT OF THESE
CRITICISMS, THEY HAVE IMPAIRED THE BELIEF OF THE JUVENILES, OF THE BAR
AND OF THE PUBLIC AS TO THE OPPORTUNITY FOR JUSTICE IN THE JUVENILE
COURT.  GRANTING THE JUVENILE THE RIGHT TO DEMAND THAT THE FACTS BE
DETERMINED BY A JURY WILL STRENGTHEN THE FAITH OF ALL CONCERNED PARTIES
IN THE JUVENILE SYSTEM.              .          .          .
. 

IT IS IMPORTANT TO NOTE, AT THIS TIME, A DEFINITE SIDE BENEFIT OF
GRANTING JURY TRIALS, I.E., AN AID TO REHABILITATION.  THE CHILD WHO
FEELS THAT HE HAS BEEN DEALT WITH FAIRLY AND NOT MERELY EXPEDIENTLY OR
AS SPEEDILY AS POSSIBLE WILL BE A BETTER PROSPECT FOR REHABILITATION. 
MANY OF THE CHILDREN WHO COME BEFORE THE COURT COME FROM BROKEN HOMES,
FROM THE GHETTOS; THEY OFTEN SUFFER FROM LOW SELF-ESTEEM; AND THEIR
BEHAVIOR IS FREQUENTLY A SYMPTOM OF THEIR OWN FEELINGS OF INADEQUACY. 
TRAUMATIC EXPERIENCES OF DENIAL OF BASIC RIGHTS ONLY ACCENTUATE THE
PAST DEPRIVATION AND CONTRIBUTE TO THE PROBLEM.  THUS, A GENERAL
SOCIETAL ATTITUDE OF ACCEPTANCE OF THE JUVENILE AS A PERSON ENTITLED TO
THE SAME PROTECTION AS AN ADULT MAY BE THE TRUE BEGINNING OF THE
REHABILITATIVE PROCESS. 

        PUBLIC TRIAL 

PUBLIC TRIAL IN THE JUDGMENT OF THIS COURT DOES NOT AFFECT THE
JUVENILE COURT PHILOSOPHY. 

(IN) IN RE OLIVER /2/  MR. JUSTICE BLACK REVIEWS THE HISTORY OF THE
PUBLIC TRIAL.  ITS ORIGINS ARE OBSCURE, BUT IT SEEMS TO HAVE EVOLVED
ALONG WITH THE JURY TRIAL GUARANTEE IN ENGLISH COMMON LAW AND WAS THEN
ADOPTED AS A PROVISION OF THE FEDERAL CONSTITUTION AS WELL AS BY MOST
STATE CONSTITUTIONS.  AMONG THE BENEFITS OF A PUBLIC TRIAL ARE THE
FOLLOWING: 

 1.  "PUBLIC TRIALS COME TO THE ATTENTION OF KEY WITNESSES

  UNKNOWN TO THE PARTIES.  THESE WITNESSES MAY THEN VOLUNTARILY

  COME FORWARD AND GIVE IMPORTANT TESTIMONY." 

 2.  "THE SPECTATORS LEARN ABOUT THEIR GOVERNMENT AND ACQUIRE

  CONFIDENCE IN THEIR JUDICIAL REMEDIES." 

     3.  "THE KNOWLEDGE THAT EVERY CRIMINAL TRIAL IS SUBJECT TO

CONTEMPORANEOUS REVIEW IN THE (FORUM) OF PUBLIC OPINION IS AN

  EFFECTIVE RESTRAINT ON POSSIBLE ABUSE OF JUDICIAL POWER."  (P.

  270.) 

JUSTICE BLACK HAS NOTHING TO SAY ON THE QUESTION OF WHETHER A PUBLIC
TRIAL ACTS AS A DETERRENT TO CRIME, BUT IT IS CLEAR THAT HE BELIEVES
PUBLICITY TO IMPROVE THE QUALITY OF CRIMINAL JUSTICE, BOTH
THEORETICALLY AND PRACTICALLY. 

AS FOR THE JUVENILE TRIAL ISSUE, HE WRITES: 

"WHATEVER MAY BE THE CLASSIFICATION OF JUVENILE COURT PROCEEDINGS,
THEY ARE OFTEN CONDUCTED WITHOUT ADMITTING ALL THE PUBLIC.  BUT IT HAS
NEVER BEEN THE PRACTICE TO WHOLLY EXCLUDE PARENTS, RELATIVES, AND
FRIENDS, OR TO REFUSE JUVENILES THE BENEFIT OF COUNSEL."  (P. 266.) 

IN FACT, THE JUVENILE PROCEEDINGS AS PRESENTLY CONDUCTED ARE FAR
FROM SECRET.  WITNESSES FOR THE PROSECUTION AND FOR THE DEFENSE, SOCIAL
WORKERS, COURT REPORTERS, STUDENTS, POLICE TRAINEES, PROBATION
COUNSELORS, AND SHERIFFS ARE PRESENT IN THE COURTROOM.  POLICE, THE
ARMED FORCES, THE FEDERAL BUREAU OF INVESTIGATION OBTAIN INFORMATION
AND HAVE ACCESS TO THE POLICE FILES.  THERE SEEMS NO MORE REASON TO
BELIEVE THAT A JURY TRIAL WOULD DESTROY CONFIDENTIALITY THAN WOULD
WITNESSES SUMMONED TO TESTIFY. 

THE COURT ALSO NOTES THE REPORT OF THE PRESIDENT'S COMMISSION ON)
LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME
IN A FREE SOCIETY 75 (1967), WHEREIN IT IS STATED:

"A JUVENILE'S ADJUDICATION RECORD IS REQUIRED BY THE LAW OF MOST
JURISDICTIONS TO BE PRIVATE AND CONFIDENTIAL; IN PRACTICE THE
CONFIDENTIALITY OF THOSE REPORTS IS OFTEN VIOLATED."  FURTHERMORE,
"(STATUTORY RESTRICTIONS ALMOST INVARIABLY APPLY ONLY TO COURT RECORDS,
AND EVEN AS TO THOSE THE EVIDENCE IS THAT MANY COURTS ROUTINELY FURNISH
INFORMATION TO THE FBI AND THE MILITARY, AND ON REQUEST TO GOVERNMENT
AGENCIES AND EVEN TO PRIVATE EMPLOYERS." 

        JUDGE'S EXPERTISE 

THE COURT IS ALSO AWARE OF THE ARGUMENT THAT THE JUVENILE COURT WAS
CREATED TO DEVELOP JUDGES WHO WERE EXPERTS IN SIFTING OUT THE REAL
PROBLEMS BEHIND A JUVENILE'S BREAKING THE LAW; THEREFORE, TO PLACE THE
CHILD'S FATE IN THE HANDS OF A JURY WOULD DEFEAT THAT PURPOSE.  THIS
WILL, HOWEVER, CONTINUE TO LEAVE THE FINAL DECISION OF DISPOSITION
SOLELY WITH THE JUDGE.  THE ROLE OF THE JURY WILL BE ONLY TO ASCERTAIN
WHETHER THE FACTS, WHICH GIVE THE COURT JURISDICTION, HAVE BEEN
ESTABLISHED BEYOND A REASONABLE DOUBT.  THE JURY WILL NOT BE CONCERNED
WITH SOCIAL AND PSYCHOLOGICAL FACTORS.  THESE FACTORS, ALONG WITH PRIOR
RECORD, FAMILY AND EDUCATIONAL BACKGROUND, WILL BE CONSIDERED BY THE
JUDGE DURING THE DISPOSITIONAL PHASE. 

TAKING INTO CONSIDERATION THE SOCIAL BACKGROUND AND OTHER FACTS,THE
JUDGE, DURING THE DISPOSITIONAL PHASE, WILL DETERMINE WHAT DISPOSITION
IS IN THE BEST INTERESTS OF THE CHILD AND SOCIETY.  IT IS AT THIS STAGE
THAT A JUDGE'S EXPERTISE IS MOST IMPORTANT, AND THE GRANTING OF A JURY
TRIAL WILL NOT PREVENT THE JUDGE FROM CARRYING OUT THE BASIC PHILOSOPHY
OF THE JUVENILE COURT. 

TRIAL BY JURY WILL PROVIDE THE CHILD WITH A SAFEGUARD AGAINST BEING
PREJUDGED.  THE JURY CLEARLY WILL HAVE NO BUSINESS IN LEARNING OF THE
SOCIAL REPORT OR ANY OF THE OTHER EXTRANEOUS MATTER UNLESS PROPERLY
INTRODUCED UNDER THE RULES OF EVIDENCE.  DUE PROCESS DEMANDS THAT THE
TRIER OF FACTS SHOULD NOT BE ACQUAINTED WITH ANY OF THE FACTS OF THE
CASE OR HAVE KNOWLEDGE OF ANY OF THE CIRCUMSTANCES, WHETHER THROUGH
OFFICIALS IN HIS OWN DEPARTMENT OR RECORDS IN HIS POSSESSION.  IF THE
ACCUSED BELIEVES THAT THE JUDGE HAS READ AN ACCOUNT OF THE FACTS
SUBMITTED BY THE POLICE OR ANY OTHER REPORT PRIOR TO THE ADJUDICATORY
HEARING AND THAT THIS MAY PROVE PREJUDICIAL, HE CAN DEMAND A JURY AND
INSURE AGAINST SUCH KNOWLEDGE ON THE PART OF THE TRIER OF THE FACTS. 

        WAIVER OF JURY TRIAL 

COUNSEL ALSO QUESTIONS WHETHER A CHILD CAN WAIVE HIS RIGHT TO A JURY
TRIAL OR, IN FACT, WHETHER A PARENT OR COUNSEL MAY WAIVE. 

WHEN THE WAIVER COMES UP FOR HEARING, THE COURT COULD, AT ITS
DISCRETION, EITHER GRANT OR REFUSE THE JUVENILE'S WAIVER OF A JURY
TRIAL, AND/OR APPOINT A GUARDIAN OR LEGAL COUNSEL TO ADVISE THE CHILD. 

MY EXPERIENCE HAS SHOWN THAT THE GREATEST PERCENTAGE OF JUVENILES
WHO APPEAR BEFORE THE COURT IN FELONY CASES HAVE LIVED APPALLING LIVES
DUE TO PARENTAL NEGLECT AND BRUTALITY, LACK OF NORMAL LIVING
CONDITIONS, AND POVERTY.  THIS HAS PRODUCED IN THEM A MATURITY WHICH IS
NORMALLY ACQUIRED MUCH LATER IN LIFE.  THEY ARE GENERALLY WELL AWARE OF
THEIR RIGHTS IN A COURT OF LAW.  HOWEVER, IN THOSE CASES WHERE A CHILD
CLEARLY NEEDS GUIDANCE, THE COURT-APPOINTED GUARDIAN OR ATTORNEY COULD
EXPLAIN TO HIM THE IMPLICATIONS OF A WAIVER.  THE JUVENILE'S RIGHTS AND
INTERESTS WOULD THUS BE PROTECTED EVERY BIT AS STRINGENTLY AS THEY ARE
TODAY BEFORE HE IS ALLOWED TO PLEAD GUILTY OR NOT GUILTY TO A
COMPLAINT.  A GUILTY PLEA IS, AFTER ALL, A WAIVER OF THE RIGHT TO TRIAL
ALTOGETHER. 

COUNSEL IS PLACED WITH THE RESPONSIBILITY OF EXPLAINING TO THE
JUVENILE THE SIGNIFICANCE OF GUILTY AND NOLO CONTENDERE PLEAS, OF
INSTRUCTING THE JUVENILE ON THE PREROGATIVE TO TAKE THE WITNESS STAND,
AND IS EXPECTED TO ADVISE HIS CLIENT IN THE SAME MANNER AS HE WOULD AN
ADULT ABOUT TO STAND TRIAL.  AND NOW COUNSEL SUGGESTS TO THE COURT THAT
COUNSEL IS NOT CAPABLE OF EXPLAINING AND WAIVING THE RIGHT TO A JURY
TRIAL.  THE COURT FAILS TO SEE THE DISTINCTION BETWEEN THIS WAIVER AND
THE ABSOLUTE WAIVER, TO WIT, A GUILTY PLEA.  COUNSEL SHOULD ACT IN THE
BEST INTEREST OF HIS CLIENT, EVEN IF THIS MAY BE IN CONFLICT WITH THE
PARENTS.  ON A NUMBER OF OCCASIONS THIS COURT HAS APPOINTED COUNSEL FOR
A JUVENILE WHOSE PARENTS COULD NOT AFFORT TO RETAIN PRIVATE COUNSEL,
AND WHERE THE PARENTS' INTERESTS WERE IN CONFLICT WITH THOSE OF THE
CHILD.  THIS PROCEDURE WILL BE CONTINUED AND THE COURT WILL CONTINUE TO
RELY ON THE GOOD JUDGMENT OF THE BAR. 

THE COURT COULD EASILY REQUIRE THAT A WAIVER OF A JURY TRIAL BE MADE
IN PERSON BY THE JUVENILE IN WRITING, IN OPEN COURT, WITH THE CONSENT
AND APPROVAL OF THE COURT AND THE ATTORNEY REPRESENTING BOTH THE
JUVENILE AND THE STATE.  THE JUDGE COULD ASCERTAIN AS TO WHETHER THE
JUVENILE CAN INTELLIGENTLY WAIVE HIS RIGHT AND, IF NECESSARY, APPOINT
COUNSEL TO ADVISE THE YOUTH AS TO THE IMPLICATIONS CONNECTED WITH THE
WAIVER.  THIS COULD BE ACCOMPLISHED WITHOUT ANY DIFFICULTY THROUGH
MEANS PRESENTLY AVAILABLE TO THE COURT. 

        JURY OF PEERS 

ONE OF THE MOST INTERESTING QUESTIONS RAISED IS THAT CONCERNING THE
RIGHT OF A JUVENILE TO A TRIAL BY HIS PEERS.  COUNSEL HAS SUGGESTED
THAT A JURY OF A JUVENILE'S PEERS WOULD BE COMPOSED OF OTHER JUVENILES,
THAT IS, A "TEENAGE JURY."  WEBSTER'S DICTIONARY, SECOND EDITION, 1966,
DEFINES A PEER AS AN EQUAL, ONE OF THE SAME RANK, QUALITY, VALUE.  THE
WORD "PEERS" MEANS NOTHING MORE THAN CITIZENS, IN RE GRILLI, 179 N.Y.S.
795, 797.  THE PHRASE "JUDGMENT OF HIS PEERS" MEANS AT COMMON LAW, A
TRIAL BY A JURY OF TWELVE MEN, STATE VS SIMONS, 61 KAN. 752.  "JUDGMENT
OF HIS PEERS" IS A TERM EXPRESSLY BORROWED FROM THE MAGNA CHARTA, AND
IT MEANS A TRIAL BY JURY, EX PARTE WAGNER, 58 OKL.CR. 161.  THE
DECLARATION OF INDEPENDENCE ALSO SPEAKS OF THE EQUALITY OF ALL MEN. 
ARE WE NOW TO SAY THAT A JUVENILE IS A SECOND-CLASS CITIZEN, NOT EQUAL
TO AN ADULT?  THE CONSTITUTION HAS NEVER BEEN CONSTRUED TO SAY WOMEN
MUST BE TRIED BY THEIR PEERS, TO WIT, BY ALL-FEMALE JURIES, OR NEGROES
BY ALL-NEGRO JURIES. 

THE ONLY RESTRICTION ON THE MAKEUP OF THE JURY IS THAT THERE CAN BE
NO SYSTEMATIC EXCLUSION OF THOSE WHO MEET LOCAL AND FEDERAL
REQUIREMENTS, IN PARTICULAR, VOTING QUALIFICATIONS. 

THE COURT NOTES THAT PRESENTLY IN SOME STATES 18-YEAR-OLDS CAN
VOTE.  PRESUMABLY, IF THEY CAN VOTE, THEY MAY ALSO SERVE ON JURIES. 
OUR OWN LEGISLATURE HAS GIVEN FIRST PASSAGE TO AN AMENDMENT TO THE
CONSTITUTION TO PERMIT 18-YEAR-OLDS TO VOTE.  THUS, IT IS QUITE
POSSIBLE THAT WE WILL HAVE TEENAGE JURORS SITTING IN JUDGMENT OF THEIR
SO-CALLED "PEERS." 

        CRIMINAL PROCEEDING 

THE ARGUMENT THAT THE ADJUDICATION OF DELINQUENCY IS NOT THE
EQUIVALENT OF CRIMINAL PROCESS IS SPURIOUS.  THIS COURT HAS DISCUSSED
THE FUTILITY OF MAKING DISTINCTIONS ON THE BASIS OF LABELS IN PRIOR
DECISIONS.  BECAUSE THE LEGISLATURE DICTATES THAT A CHILD WHO COMMITS A
FELONY SHALL BE CALLED A DELINQUENT DOES NOT CHANGE THE NATURE OF THE
CRIME.  MURDER IS MURDER; ROBBERY IS ROBBERY-- THEY ARE BOTH CRIMINAL
OFFENSES, NOT CIVIL, REGARDLESS AND INDEPENDENT OF THE AGE OF THE
DOER. 

        .      .          .          . 

IT IS NOTEWORTHY THAT IN OUR STATUTE THERE IS NOT AN EXPRESS
STATUTORY PROVISION INDICATING THAT THE PROCEEDINGS ARE CIVIL.  TRIAL
BY JURY IN RHODE ISLAND IS GUARANTEED TO ALL PERSONS, WHETHER IN
CRIMINAL CASES OR IN CIVIL CASES.  THAT RIGHT EXISTED PRIOR TO THE
ADOPTION OF THE CONSTITUTION; AND CERTAINLY WHETHER ONE IS INVOLVED IN
A CIVIL OR CRIMINAL PROCEEDING OF THE FAMILY COURT IN WHICH HIS
"LIBERTY" IS TO BE "TAKEN" "IMPRISONED" "OUTLAWED" AND "BANISHED" HE IS
ENTITLED TO A TRIAL BY JURY.  (HENRY VS CHERRY & WEBB, 30 R.I. 13, AT
30). 

THIS COURT BELIEVES THAT ALTHOUGH THE JUVENILE COURT WAS INITIALLY
CREATED AS A SOCIAL EXPERIMENT, IT HAS NOT CEASED TO BE PART OF THE
JUDICIAL SYSTEM.  IN VIEW OF THE POTENTIAL LOSS OF LIBERTY AT STAKE IN
THE PROCEEDING, THIS COURT IS COMPELLED TO ACCORD DUE PROCESS TO ALL
THE LITIGANTS WHO COME BEFORE IT; AND, THEREFORE, ALL OF THE PROVISIONS
OF THE BILL OF RIGHTS, INCLUDING TRIAL BY JURY, MUST PREVAIL. 

THE COURT CONCLUDES THAT THE FRAMERS OF OUR CONSTITUTION NEVER
INTENDED TO PLACE THE POWER IN ANY ONE MAN OR OFFICIAL, AND TAKE AWAY
THE "PROTECTION OF THE LAW FROM THE RIGHTS OF AN INDIVIDUAL."  IT MEANT
"TO SECURE THE BLESSINGS OF LIBERTY TO THEMSELVES AND POSTERITY."  THE
CONSTITUTION WAS WRITTEN WITH THE PHILOSOPHY BASED UPON A COMPOSITE OF
ALL OF THE MOST LIBERAL IDEAS WHICH CAME DOWN THROUGH THE CENTURIES;
THE MAGNA CHARTA, THE PETITION OF RIGHTS, THE BILL OF RIGHTS AND THE
RULES OF COMMON LAW; AND THE KEYSTONE IS THE PRESERVATION OF INDIVIDUAL
LIBERTY.  ALL THESE IDEAS WERE CAREFULLY INSERTED IN OUR CONSTITUTION. 

THE JUVENILE IS CONSTITUTIONALLY ENTITLED TO A JURY TRIAL. 

/1/  REIS, 7 CRL 2151 (1970). 

/2/  333 U.S. 257. 

DANIEL E. FARMER ARGUED THE CAUSE FOR APPELLANTS IN NO. 322.  WITH
HIM ON THE BRIEF WERE JOHN S. ROBERTS, JR., PETER W. BROWN, HARVEY N.
SCHMIDT, AND JAMES O. FREEDMAN. 

MICHAEL MELTSNER ARGUED THE CAUSE FOR PETITIONERS IN NO. 128.  WITH
HIM ON THE BRIEFS WERE JACK GREENBERG, JULIUS L. CHAMBERS, JAMES E.
FERGUSON II, AND ANTHONY AMSTERDAM. 

ARLEN SPECTER ARGUED THE CAUSE FOR APPELLEE IN NO. 322.  WITH HIM ON
THE BRIEF WAS JAMES D. CRAWFORD. 

ROBERT MORGAN, ATTORNEY GENERAL, ARGUED THE CAUSE FOR RESPONDENT,
THE STATE OF NORTH CAROLINA, IN NO. 128.  WITH HIM ON THE BRIEF WERE
RALPH MOODY, DEPUTY ATTORNEY GENERAL, AND ANDREW A. VANORE, JR.,
ASSISTANT ATTORNEY GENERAL. 

ALFRED L. SCANLAN ARGUED THE CAUSE FOR THE NATIONAL COUNCIL OF
JUVENILE COURT JUDGES AS AMICUS CURIAE URGING AFFIRMANCE IN NO. 128. 
WITH HIM ON THE BRIEF WAS MARTIN J. FLYNN. 

BRIEFS OF AMICI CURIAE IN NO. 128 WERE FILED BY JOHN J. DRONEY FOR
THE COMMONWEALTH OF MASSACHUSETTS; BY THOMAS C. LYNCH, ATTORNEY
GENERAL, ALBERT W. HARRIS, JR., ASSISTANT ATTORNEY GENERAL, AND DERALD
E. GRANBERG AND GLORIA F. DEHART, DEPUTY ATTORNEYS GENERAL, FOR THE
STATE OF CALIFORNIA; AND BY NORMAN LEFSTEIN FOR THE PUBLIC DEFENDER
SERVICE FOR THE DISTRICT OF COLUMBIA ET AL.
..END :






PALMER V. THOMPSON, 403 U.S. 217 


       PALMER ET AL. V. THOMPSON, MAYOR OF THE CITY OF JACKSON, ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 107.  ARGUED DECEMBER 14, 1970-- DECIDED JUNE 14, 1971 


FOLLOWING THE COURT OF APPEALS' AFFIRMANCE OF A DISTRICT COURT
JUDGMENT INVALIDATING ENFORCED SEGREGATION ON EQUAL PROTECTION GROUNDS,
THE CITY COUNCIL OF JACKSON, MISSISSIPPI, DESEGREGATED ITS PUBLIC
RECREATIONAL FACILITIES, INCLUDING ITS FIVE PUBLIC PARKS, EXCEPT FOR
THEIR SWIMMING POOLS.  STATING THAT THE POOLS COULD NOT BE OPERATED
SAFELY AND ECONOMICALLY ON AN INTEGRATED BASIS, THE COUNCIL CLOSED FOUR
CITY-OWNED POOLS AND SURRENDERED ITS LEASE ON A FIFTH, WHICH THE
LESSOR, THE YMCA, CONTINUED TO OPERATE FOR WHITES ONLY.  PETITIONERS,
NEGRO CITIZENS OF JACKSON, THEN BROUGHT THIS ACTION, MAINLY ON EQUAL
PROTECTION GROUNDS, TO FORCE THE CITY TO REOPEN AND OPERATE THE POOLS
ON A DESEGREGATED BASIS.  THE DISTRICT COURT HELD THAT THERE WAS NO
DENIAL OF EQUAL PROTECTION.  THE COURT OF APPEALS AFFIRMED, REJECTING
THE CONTENTION THAT SINCE THE POOLS HAD BEEN CLOSED TO AVOID
DESEGREGATION THERE WAS A DENIAL OF EQUAL PROTECTION.  HELD: 

1.  THE CLOSING OF THE POOLS TO ALL PERSONS DID NOT CONSTITUTE A
DENIAL OF EQUAL PROTECTION OF THE LAWS UNDER THE FOURTEENTH AMENDMENT
TO THE NEGROES.  PP. 219-226. 

(A) THIS CASE IS DISTINGUISHABLE FROM GRIFFIN V. COUNTY SCHOOL BOARD
OF PRINCE EDWARD COUNTY, 377 U.S. 218, AND REITMAN V. MULKEY, 387 U.S.
369, ON BOTH OF WHICH PETITIONERS RELY.  IN GRIFFIN THERE WERE MANY
FACETS OF STATE INVOLVEMENT IN THE SEGREGATED OPERATION OF "PRIVATE"
SCHOOLS; HERE THERE IS NO CITY INVOLVEMENT IN THE OPERATION OR FUNDING
OF ANY POOL.  IN REITMAN THE EVIDENCE WAS DEEMED SUFFICIENT TO SHOW
THAT THE STATE, BY ENACTING A CONSTITUTIONAL AMENDMENT ESTABLISHING THE
RIGHT OF PRIVATE PERSONS TO DISCRIMINATE IN REALTY TRANSACTIONS,
THEREBY REPEALING TWO HOUSING ANTI-DISCRIMINATION LAWS, WAS ABETTING
REFUSAL TO RENT APARTMENTS ON RACIAL GROUNDS; HERE THERE WAS NO
EVIDENCE THAT THE CITY CONSPIRED WITH THE YMCA THAT ITS POOL BE
SEGREGATED.  PP. 221-224. 

(B) IN THIS CASE, WHERE THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT
THE COUNCIL'S STATED REASON FOR CLOSING THE POOLS AND THERE WAS NO
EVIDENCE OF STATE ACTION AFFECTING NEGROES DIFFERENTLY FROM WHITES,
PETITIONERS' CONTENTION THAT EQUAL PROTECTION REQUIREMENTS WERE
VIOLATED BECAUSE THE POOL-CLOSING DECISION WAS MOTIVATED BY ANTI
INTEGRATION CONSIDERATIONS, MUST ALSO FAIL SINCE COURTS WILL NOT
INVALIDATE LEGISLATION BASED SOLELY ON ASSERTED ILLICIT MOTIVATION BY
THE ENACTING LEGISLATIVE BODY.  PP. 224-226. 

2.  THE CITY COUNCIL'S ACTION IN CLOSING THE POOLS INSTEAD OF
KEEPING THEM OPEN ON AN INTEGRATED BASIS DID NOT CREATE A "BADGE OR
INCIDENT" OF SLAVERY IN VIOLATION OF THE THIRTEENTH AMENDMENT.  PP. 226
227. 

419 F.2D 1222, AFFIRMED. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND HARLAN, STEWART, AND BLACKMUN, JJ., JOINED.  BURGER, C. J.,
POST, P. 227, AND BLACKMUN, J., POST, P. 228, FILED CONCURRING
OPINIONS.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 231. 
WHITE, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL,
JJ., JOINED, POST, P. 240.  MARSHALL, J., FILED A DISSENTING OPINION,
IN WHICH BRENNAN AND WHITE, JJ., JOINED, POST, P. 271. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1962 THE CITY OF JACKSON, MISSISSIPPI, WAS MAINTAINING FIVE
PUBLIC PARKS ALONG WITH SWIMMING POOLS, GOLF LINKS, AND OTHER
FACILITIES FOR USE BY THE PUBLIC ON A RACIALLY SEGREGATED BASIS.  FOUR
OF THE SWIMMING POOLS WERE USED BY WHITES ONLY AND ONE BY NEGROES
ONLY.  PLAINTIFFS BROUGHT AN ACTION IN THE UNITED STATES DISTRICT COURT
SEEKING A DECLARATORY JUDGMENT THAT THIS STATE-ENFORCED SEGREGATION OF
THE RACES WAS A VIOLATION OF THE THIRTEENTH AND FOURTEENTH AMENDMENTS,
AND ASKING AN INJUNCTION TO FORBID SUCH PRACTICES.  AFTER HEARINGS THE
DISTRICT COURT ENTERED A JUDGMENT DECLARING THAT ENFORCED SEGREGATION
DENIED EQUAL PROTECTION OF THE LAWS BUT IT DECLINED TO ISSUE AN
INJUNCTION.  /1/  THE COURT OF APPEALS AFFIRMED, AND WE DENIED
CERTIORARI.  /2/  THE CITY PROCEEDED TO DESEGREGATE ITS PUBLIC PARKS,
AUDITORIUMS, GOLF COURSES, AND THE CITY ZOO.  HOWEVER, THE CITY COUNCIL
DECIDED NOT TO TRY TO OPERATE THE PUBLIC SWIMMING POOLS ON A
DESEGREGATED BASIS.  ACTING IN ITS LEGISLATIVE CAPACITY, THE COUNCIL
SURRENDERED ITS LEASE ON ONE POOL AND CLOSED FOUR WHICH THE CITY
OWNED.  A NUMBER OF NEGRO CITIZENS OF JACKSON THEN FILED THIS SUIT TO
FORCE THE CITY TO REOPEN THE POOLS AND OPERATE THEM ON A DESEGREGATED
BASIS.  THE DISTRICT COURT FOUND THAT THE CLOSING WAS JUSTIFIED TO
PRESERVE PEACE AND ORDER AND BECAUSE THE POOLS COULD NOT BE OPERATED
ECONOMICALLY ON AN INTEGRATED BASIS.  /3/  IT HELD THE CITY'S ACTION
DID NOT DENY BLACK CITIZENS EQUAL PROTECTION OF THE LAWS.  THE COURT OF
APPEALS SITTING EN BANC AFFIRMED, SIX OUT OF 13 JUDGES DISSENTING.  /4/
THAT COURT REJECTED THE CONTENTION THAT SINCE THE POOLS HAD BEEN
CLOSED EITHER IN WHOLE OR IN PART TO AVOID DESEGREGATION THE CITY
COUNCIL'S ACTION WAS A DENIAL OF EQUAL PROTECTION OF THE LAWS.  WE
GRANTED CERTIORARI TO DECIDE THAT QUESTION.  WE AFFIRM. 

        I 

PETITIONERS RELY CHIEFLY ON THE FIRST SECTION OF THE FOURTEENTH
AMENDMENT WHICH FORBIDS ANY STATE TO "DENY TO ANY PERSON WITHIN ITS
JURISDICTION THE EQUAL PROTECTION OF THE LAWS."  THERE CAN BE NO DOUBT
THAT A MAJOR PURPOSE OF THIS AMENDMENT WAS TO SAFEGUARD NEGROES AGAINST
DISCRIMINATORY STATE LAWS-- STATE LAWS THAT FAIL TO GIVE NEGROES
PROTECTION EQUAL TO THAT AFFORDED WHITE PEOPLE.  HISTORY SHOWS THAT THE
ACHIEVEMENT OF EQUALITY FOR NEGROES WAS THE URGENT PURPOSE NOT ONLY FOR
PASSAGE OF THE FOURTEENTH AMENDMENT BUT FOR THE THIRTEENTH AND
FIFTEENTH AMENDMENTS AS WELL.  SEE, E.G., SLAUGHTER-HOUSE CASES, 16
WALL.  36, 71-72 (1873).  THUS THE EQUAL PROTECTION CLAUSE WAS
PRINCIPALLY DESIGNED TO PROTECT NEGROES AGAINST DISCRIMINATORY ACTION
BY THE STATES.  HERE THERE HAS UNQUESTIONABLY BEEN "STATE ACTION"
BECAUSE THE OFFICIAL LOCAL GOVERNMENT LEGISLATURE, THE CITY COUNCIL,
HAS CLOSED THE PUBLIC SWIMMING POOLS OF JACKSON.  THE QUESTION,
HOWEVER, IS WHETHER THIS CLOSING OF THE POOLS IS STATE ACTION THAT
DENIES "THE EQUAL PROTECTION OF THE LAWS" TO NEGROES.  IT SHOULD BE
NOTED FIRST THAT NEITHER THE FOURTEENTH AMENDMENT NOR ANY ACT OF
CONGRESS PURPORTS TO IMPOSE AN AFFIRMATIVE DUTY ON A STATE TO BEGIN TO
OPERATE OR TO CONTINUE TO OPERATE SWIMMING POOLS.  FURTHERMORE, THIS IS
NOT A CASE WHERE WHITES ARE PERMITTED TO USE PUBLIC FACILITIES WHILE
BLACKS ARE DENIED ACCESS.  IT IS NOT A CASE WHERE A CITY IS MAINTAINING
DIFFERENT SETS OF FACILITIES FOR BLACKS AND WHITES AND FORCING THE
RACES TO REMAIN SEPARATE IN RECREATIONAL OR EDUCATIONAL ACTIVITIES. 
/5/  SEE, E.G., WATSON V. CITY OF MEMPHIS, 373 U.S. 526 (1963); BROWN
V. BOARD OF EDUCATION, 347 U.S. 483 (1954). 

UNLESS, THEREFORE, AS PETITIONERS URGE, CERTAIN PAST CASES REQUIRE
US TO HOLD THAT CLOSING THE POOLS TO ALL DENIED EQUAL PROTECTION TO
NEGROES, WE MUST AGREE WITH THE COURTS BELOW AND AFFIRM. 

        II 

ALTHOUGH PETITIONERS CITE A NUMBER OF OUR PREVIOUS CASES, THE ONLY
TWO WHICH EVEN PLAUSIBLE SUPPORT THEIR ARGUMENT ARE GRIFFIN V. COUNTY
SCHOOL BOARD OF PRINCE EDWARD COUNTY, 377 U.S. 218 (1964), AND REITMAN
V. MULKEY, 387 U.S. 369 (1967).  FOR THE REASONS THAT FOLLOW, HOWEVER,
NEITHER CASE LEADS US TO REVERSE THE JUDGMENT HERE.  /6/ 

A. IN GRIFFIN THE PUBLIC SCHOOLS OF PRINCE EDWARD COUNTY, VIRGINIA,
WERE CLOSED UNDER AUTHORITY OF STATE AND COUNTY LAW, AND SO-CALLED
"PRIVATE SCHOOLS" WERE SET UP IN THEIR PLACE TO AVOID A COURT
DESEGREGATION ORDER.  AT THE SAME TIME, PUBLIC SCHOOLS IN OTHER
COUNTIES IN VIRGINIA REMAINED OPEN.  IN PRINCE EDWARD COUNTY THE
"PRIVATE SCHOOLS" WERE OPEN TO WHITES ONLY AND THESE SCHOOLS WERE IN
FACT RUN BY A PRACTICAL PARTNERSHIP BETWEEN STATE AND COUNTY, DESIGNED
TO PRESERVE SEGREGATED EDUCATION.  WE POINTED OUT IN GRIFFIN THE MANY
FACETS OF STATE INVOLVEMENT IN THE RUNNING OF THE "PRIVATE SCHOOLS." 
THE STATE GENERAL ASSEMBLY HAD MADE AVAILABLE GRANTS OF $150 PER CHILD
TO MAKE THE PROGRAM POSSIBLE.  THIS WAS SUPPLEMENTED BY A COUNTY GRANT
PROGRAM OF $100 PER CHILD AND COUNTY PROPERTY TAX CREDITS FOR CITIZENS
CONTRIBUTING TO THE "PRIVATE SCHOOLS."  UNDER THOSE CIRCUMSTANCES WE
HELD THAT THE CLOSING OF PUBLIC SCHOOLS IN JUST ONE COUNTY WHILE THE
STATE HELPED FINANCE "PRIVATE SCHOOLS" WAS A SCHEME TO PERPETUATE
SEGREGATION IN EDUCATION WHICH CONSTITUTED A DENIAL OF EQUAL PROTECTION
OF THE LAWS.  THUS THE GRIFFIN CASE SIMPLY TREATED THE SCHOOL PROGRAM
FOR WHAT IT WAS-- AN OPERATION OF PRINCE EDWARD COUNTY SCHOOLS UNDER A
THINLY DISGUISED "PRIVATE"  SCHOOL SYSTEM ACTUALLY PLANNED AND CARRIED
OUT BY THE STATE AND THE COUNTY TO MAINTAIN SEGREGATED EDUCATION WITH
PUBLIC FUNDS.  THAT CASE CAN GIVE NO COMFORT TO PETITIONERS HERE.  THIS
RECORD SUPPORTS NO INTIMATION THAT JACKSON HAS NOT COMPLETELY AND
FINALLY CEASED RUNNING SWINNING POOLS FOR ALL TIME.  UNLIKE PRINCE
EDWARD COUNTY, JACKSON HAS NOT PRETENDED TO CLOSE PUBLIC POOLS ONLY TO
RUN THEM UNDER A "PRIVATE"  LABEL.  IT IS TRUE THAT THE LEAVELL WOODS
POOL, PREVIOUSLY LEASED BY THE CITY FROM THE YMCA, IS NOW RUN BY THAT
ORGANIZATION AND APPEARS TO BE OPEN ONLY TO WHITES.  AND ACCORDING TO
ORAL ARGUMENT, ANOTHER POOL OWNED BY THE CITY BEFORE 1963 IS NOW OWNED
AND OPERATED BY JACKSON STATE COLLEGE, A PREDOMINANTLY BLACK
INSTITUTION, FOR COLLEGE STUDENTS AND THEIR GUESTS.  /7/  BUT UNLIKE
THE "PRIVATE SCHOOLS" IN PRINCE EDWARD COUNTY THERE IS NOTHING HERE TO
SHOW THE CITY IS DIRECTLY OR INDIRECTLY INVOLVED IN THE FUNDING OR
OPERATION OF EITHER POOL.  /8/  IF THE TIME EVER COMES WHEN JACKSON
ATTEMPTS TO RUN SEGREGATED PUBLIC POOLS EITHER DIRECTLY OR INDIRECTLY,
OR PARTICIPATES IN A SUBTERFUGE WHEREBY POOLS ARE NOMINALLY RUN BY
"PRIVATE PARTIES" BUT ACTUALLY BY THE CITY, RELIEF WILL BE AVAILABLE IN
THE FEDERAL COURTS. 

B. PETITIONERS ALSO CLAIM THAT JACKSON'S CLOSING OF THE PUBLIC POOLS
AUTHORIZES OR ENCOURAGES PRIVATE POOL OWNERS TO DISCRIMINATE ON ACCOUNT
OF RACE AND THAT SUCH "ENCOURAGEMENT" IS PROHIBITED BY REITMAN V.
MULKEY, SUPRA. 

IN REITMAN, CALIFORNIA HAD REPEALED TWO LAWS RELATING TO RACIAL
DISCRIMINATION IN THE SALE OF HOUSING BY PASSING A CONSTITUTIONAL
AMENDMENT ESTABLISHING THE RIGHT OF PRIVATE PERSONS TO DISCRIMINATE ON
RACIAL GROUNDS IN REAL ESTATE TRANSACTIONS.  THIS COURT THERE ACCEPTED
WHAT IT DESIGNATED AS THE HOLDING OF THE SUPREME COURT OF CALIFORNIA,
NAMELY THAT THE CONSTITUTIONAL AMENDMENT WAS AN OFFICIAL AUTHORIZATION
OF RACIAL DISCRIMINATION WHICH SIGNIFICANTLY INVOLVED THE STATE IN THE
DISCRIMINATORY ACTS OF PRIVATE PARTIES.  387 U.S.,AT 376-378, 380-381. 

IN THE FIRST PLACE THERE ARE NO FINDINGS HERE ABOUT ANY STATE
"ENCOURAGEMENT" OF DISCRIMINATION, AND IT IS NOT CLEAR THAT ANY SUCH
THEORY WAS EVER CONSIDERED BY THE DISTRICT COURT.  THE IMPLICATION OF
PETITIONERS' ARGUMENT APPEARS TO BE THAT THE FACT THE CITY TURNED OVER
TO THE YMCA A POOL IT HAD PREVIOUSLY LEASED IS SUFFICIENT TO SHOW
AUTOMATICALLY THAT THE CITY HAS CONSPIRED WITH THE YMCA TO DEPRIVE
NEGROES OF THE OPPORTUNITY TO SWIM IN INTEGRATED POOLS.  POSSIBLY IN A
CASE WHERE THE CITY AND THE YMCA WERE BOTH PARTIES, A COURT COULD FIND
THAT THE CITY ENGAGED IN A SUBTERFUGE, AND THAT LIABILITY COULD BE
FASTENED ON IT AS AN ACTIVE PARTICIPANT IN A CONSPIRACY WITH THE YMCA. 
WE NEED NOT SPECULATE UPON SUCH A POSSIBILITY, FOR THERE IS NO SUCH
FINDING HERE, AND IT DOES NOT APPEAR FROM THIS RECORD THAT THERE WAS
EVIDENCE TO SUPPORT SUCH A FINDING.  REITMAN V. MULKEY WAS BASED ON A
THEORY THAT THE EVIDENCE WAS SUFFICIENT TO SHOW THE STATE WAS ABETTING
A REFUSAL TO RENT APARTMENTS ON RACIAL GROUNDS.  ON THIS RECORD,
REITMAN OFFERS NO MORE SUPPORT TO PETITIONERS THAN DOES GRIFFIN. 

        III 

PETITIONERS HAVE ALSO ARGUED THAT RESPONDENTS' ACTION VIOLATES THE
EQUAL PROTECTION CLAUSE BECAUSE THE DECISION TO CLOSE THE POOLS WAS
MOTIVATED BY A DESIRE TO AVOID INTEGRATION OF THE RACES.  BUT NO CASE
IN THIS COURT HAS HELD THAT A LEGISLATIVE ACT MAY VIOLATE EQUAL
PROTECTION SOLELY BECAUSE OF THE MOTIVATIONS OF THE MEN WHO VOTED FOR
IT.  THE PITFALLS OF SUCH ANALYSIS WERE SET FORTH CLEARLY IN THE
LANDMARK OPINION OF MR. CHIEF JUSTICE MARSHALL IN FLETCHER V. PECK, 6
CRANCH 87, 130 (1810), WHERE THE COURT DECLINED TO SET ASIDE THE
GEORGIA LEGISLATURE'S SALE OF LANDS ON THE THEORY THAT ITS MEMBERS WERE
CORRUPTLY MOTIVATED IN PASSING THE BILL. 

A SIMILAR CONTENTION THAT ILLICIT MOTIVATION SHOULD LEAD TO A
FINDING OF UNCONSTITUTIONALITY WAS ADVANCED IN UNITED STATES V.
O'BRIEN, 391 U.S. 367, 383 (1968), WHERE THIS COURT REJECTED THE
ARGUMENT THAT A DEFENDANT COULD NOT BE PUNISHED FOR BURNING HIS DRAFT
CARD BECAUSE CONGRESS HAD ALLEGEDLY PASSED THE STATUTE TO STIFLE
DISSENT.  THAT OPINION EXPLAINED WELL THE HAZARDS OF DECLARING A LAW
UNCONSTITUTIONAL BECAUSE OF THE MOTIVATIONS OF ITS SPONSORS.  FIRST, IT
IS EXTREMELY DIFFICULT FOR A COURT TO ASCERTAIN THE MOTIVATION, OR
COLLECTION OF DIFFERENT MOTIVATIONS, THAT LIE BEHIND A LEGISLATIVE
ENACTMENT.  ID., AT 383, 384.  HERE, FOR EXAMPLE, PETITIONERS HAVE
ARGUED THAT THE JACKSON POOLS WERE CLOSED BECAUSE OF IDEOLOGICAL
OPPOSITION TO RACIAL INTEGRATION IN SWIMMING POOLS.  SOME EVIDENCE IN
THE RECORD APPEARS TO SUPPORT THIS ARGUMENT.  ON THE OTHER HAND THE
COURTS BELOW FOUND THAT THE POOLS WERE CLOSED BECAUSE THE CITY COUNCIL
FELT THEY COULD NOT BE OPERATED SAFELY AND ECONOMICALLY ON AN
INTEGRATED BASIS.  BASIS.  THERE IS SUBSTANTIAL EVIDENCE IN THE RECORD
TO SUPPORT THIS CONCLUSION.  IT IS DIFFICULT OR IMPOSSIBLE FOR ANY
COURT TO DETERMINE THE "SOLE" OR "DOMINANT"  MOTIVATION BEHIND THE
CHOICES OF A GROUP OF LEGISLATORS.  FURTHERMORE, THERE IS AN ELEMENT OF
FUTILITY IN A JUDICIAL ATTEMPT TO INVALIDATE A LAW BECAUSE OF THE BAD
MOTIVES OF ITS SUPPORTERS.  IF THE LAW IS STRUCK DOWN FOR THIS REASON,
RATHER THAN BECAUSE OF ITS FACIAL CONTENT OR EFFECT, IT WOULD
PRESUMABLY BE VALID AS SOON AS THE LEGISLATURE OR RELEVANT GOVERNING
BODY REPASSED IT FOR DIFFERENT REASONS. 

IT IS TRUE THERE IS LANGUAGE IN SOME OF OUR CASES INTERPRETING THE
FOURTEENTH AND FIFTEENTH AMENDMENTS WHICH MAY SUGGEST THAT THE MOTIVE
OR PURPOSE BEHIND A LAW IS RELEVANT TO ITS CONSTITUTIONALITY.  GRIFFIN
V. COUNTY SCHOOL BOARD, SUPRA; GOMILLION V. LIGHTFOOT, 364 U.S. 339,
347 (1960).  BUT THE FOCUS IN THOSE CASES WAS ON THE ACTUAL EFFECT OF
THE ENACTMENTS, NOT UPON THE MOTIVATION WHICH LED THE STATES TO BEHAVE
AS THEY DID.  IN GRIFFIN, AS DISCUSSED SUPRA, THE STATE WAS IN FACT
PERPETUATING A SEGREGATED PUBLIC SCHOOL SYSTEM BY FINANCING SEGREGATED
"PRIVATE" ACADEMIES.  AND IN GOMILLION THE ALABAMA LEGISLATURE'S
GERRYMANDER OF THE BOUNDARIES OF TUSKEGEE EXCLUDED VIRTUALLY ALL
NEGROES FROM VOTING IN TOWN ELECTIONS.  HERE THE RECORD INDICATES ONLY
THAT JACKSON ONCE RAN SEGREGATED PUBLIC SWIMMING POOLS AND THAT NO
PUBLIC POOLS ARE NOW MAINTAINED BY THE CITY.  MOREOVER, THERE IS NO
EVIDENCE IN THIS RECORD TO SHOW THAT THE CITY IS NOT COVERTLY AIDING
THE MAINTENANCE AND OPERATION OF POOLS WHICH ARE PRIVATE IN NAME ONLY. 
IT SHOWS NO STATE ACTION AFFECTING BLACKS DIFFERENTLY FROM WHITES. 

PETITIONERS HAVE ARGUED STRENUOUSLY THAT A CITY'S POSSIBLE
MOTIVATIONS TO ENSURE SAFETY AND SAVE MONEY CANNOT VALIDATE AN
OTHERWISE IMPERMISSIBLE STATE ACTION.  THIS PROPOSITION IS, OF COURSE,
TRUE.  CITIZENS MAY NOT BE COMPELLED TO FORGO THEIR CONSTITUTIONAL
RIGHTS BECAUSE OFFICIALS FEAR PUBLIC HOSITILITY OR DESIRE TO SAVE
MONEY.  BUCHANAN V. WARLEY, 245 U.S. 60 (1917); COOPER V. AARON, 358
U.S. 1 (1958); WATSON V. CITY OF MEMPHIS, 373 U.S. 526 (1963).  BUT THE
ISSUE HERE IS WHETHER BLACK CITIZENS IN JACKSON ARE BEING DENIED THEIR
CONSTITUTIONAL RIGHTS WHEN THE CITY HAS CLOSED THE PUBLIC POOLS TO
BLACK AND WHITE ALIKE.  NOTHING IN THE HISTORY OR THE LANGUAGE OF THE
FOURTEENTH AMENDMENT NOR IN ANY OF OUR PRIOR CASES PERSUADES US THAT
THE CLOSING OF THE JACKSON SWIMMING POOLS TO ALL ITS CITIZENS
CONSTITUTES A DENIAL OF "THE EQUAL PROTECTION OF THE LAWS." 

       IV 

FINALLY, SOME FAINT AND UNPERSUASIVE ARGUMENT HAS BEEN MADE BY
PETITIONERS THAT THE CLOSING OF THE POOLS VIOLATED THE THIRTEENTH
AMENDMENT WHICH FREED THE NEGROES FROM SLAVERY.  THE ARGUMENT RUNS THIS
WAY:  THE FIRST MR. JUSTICE HARLAN'S DISSENT IN PLESSY V. FERGUSON, 163
U.S. 537, 552 (1896), ARGUED STRONGLY THAT THE PURPOSE OF THE
THIRTEENTH AMENDMENT WAS NOT ONLY TO OUTLAW SLAVERY BUT ALSO ALL OF ITS
"BADGES AND INCIDENTS."  THIS BROAD READING OF THE AMENDMENT WAS
AFFIRMED IN JONES V. ALFRED H. MAYER CO., 392 U.S. 409 (1968).  THE
DENIAL OF THE RIGHT OF NEGROES TO SWIM IN POOLS WITH WHITE PEOPLE IS
SAID TO BE A "BADGE OR INCIDENT" OF SLAVERY.  CONSEQUENTLY, THE
ARGUMENT SEEMS TO RUN, THIS COURT SHOULD DECLARE THAT THE CITY'S
CLOSING OF THE POOLS TO KEEP THE TWO RACES FROM SWIMMING TOGETHER
VIOLATES THE THIRTEENTH AMENDMENT.  TO REACH THAT RESULT FROM THE
THIRTEENTH AMENDMENT WOULD SEVERELY STRETCH ITS SHORT SIMPLE WORDS AND
DO VIOLENCE TO ITS HISTORY.  ESTABLISHING THIS COURT'S AUTHORITY UNDER
THE THIRTEENTH AMENDMENT TO DECLARE NEW LAWS TO GOVERN THE THOUSANDS OF
TOWNS AND CITIES OF THE COUNTRY WOULD GRANT IT A LAWMAKING POWER FAR
BEYOND THE IMAGINATION OF THE AMENDMENT'S AUTHORS.  FINALLY, ALTHOUGH
THE THIRTEENTH AMENDMENT IS A SKIMPY COLLECTION OF WORDS TO ALLOW THIS
COURT TO LEGISLATE NEW LAWS TO CONTROL THE OPERATION OF SWIMMING POOLS
THROUGHOUT THE LENGTH AND BREADTH OF THIS NATION, THE AMENDMENT DOES
CONTAIN OTHER WORDS THAT WE HELD IN JONES V. ALFRED H. MAYER CO. COULD
EMPOWER CONGRESS TO OUTLAW "BADGES OF SLAVERY."  THE LAST SENTENCE OF
THE AMENDMENT READS: 

     "CONGRESS SHALL HAVE POWER TO ENFORCE THIS ARTICLE BY
APPROPRIATE LEGISLATION."  BUT CONGRESS HAS PASSED NO LAW UNDER THIS
POWER TO REGULATE A CITY'S OPENING OR CLOSING OF SWIMMING POOLS OR
OTHER RECREATIONAL FACILITIES. 

IT HAS NOT BEEN SO MANY YEARS SINCE IT WAS FIRST DEEMED PROPER AND
LAWFUL FOR CITIES TO TAX THEIR CITIZENS TO BUILD AND OPERATE SWIMMING
POOLS FOR THE PUBLIC.  PROBABLY FEW PERSONS, PRIOR TO THIS CASE, WOULD
HAVE IMAGINED THAT CITIES COULD BE FORCED BY FIVE LIFETIME JUDGES TO
CONSTRUCT OR REFURBISH SWIMMING POOLS WHICH THEY CHOOSE NOT TO OPERATE
FOR ANY REASON, SOUND OR UNSOUND.  SHOULD CITIZENS OF JACKSON OR ANY
OTHER CITY BE ABLE TO ESTABLISH IN COURT THAT PUBLIC, TAX-SUPPORTED
SWIMMING POOLS ARE BEING DENIED TO ONE GROUP BECAUSE OF COLOR AND
SUPPLIED TO ANOTHER, THEY WILL BE ENTITLED TO RELIEF.  BUT THAT IS NOT
THE CASE HERE. 

THE JUDGMENT IS

              AFFIRMED. 

/1/  CLARK V. THOMPSON, 206 F.SUPP.  539 (SD MISS.  1962). 

/2/  313 F.2D 637 (CA5), CERT. DENIED, 375 U.S. 951 (1963). 

/3/  THE COURT'S OPINION IS NOT OFFICIALLY REPORTED. 

/4/  419 F.2D 1222 (CA5 1969). 

/5/  MY BROTHER WHITE'S DISSENT SUGGESTS THAT THE POOL CLOSING
OPERATES UNEQUALLY ON WHITE AND BLACKS BECAUSE, "THE ACTION OF THE CITY
IN THIS CASE INTERPOSES A MAJOR DETERRENT TO SEEKING JUDICIAL OR
EXECUTIVE HELP IN ELIMINATING RACIAL RESTRICTIONS ON THE USE OF PUBLIC
FACILITIES."  POST, AT 269.  IT IS DIFFICULT TO SEE THE FORCE OF THIS
ARGUMENT SINCE JACKSON HAS DESEGREGATED ITS PUBLIC PARKS, AUDITORIUMS,
GOLF COURSES, CITY ZOO, AND THE RECORD INDICATES IT NOW MAINTAINS NO
SEGREGATED PUBLIC FACILITIES. 

/6/  BUSH V. ORLEANS PARISH SCHOOL BOARD, 187 F.SUPP.  42 (ED LA.
1960), AFF'D, 365 U.S. 569 (1961), DOES NOT LEAD US TO REVERSE THE
JUDGMENT HERE.  IN BUSH WE WROTE NO OPINION BUT MERELY AFFIRMED A LOWER
FEDERAL COURT JUDGMENT THAT HELD UNCONSTITUTIONAL CERTAIN LAWS DESIGNED
TO PERPETUATE SEGREGATION IN THE LOUISIANA PUBLIC SCHOOLS.  ONE LAW
HELD UNCONSTITUTIONAL BY THE LOWER COURT EMPOWERED THE STATE GOVERNOR
TO CLOSE ANY SCHOOL ORDERED TO INTEGRATE; ANOTHER EMPOWERED HIM TO
CLOSE ALL STATE SCHOOLS IF ONE WERE INTEGRATED.  OF COURSE THAT CASE
DID NOT INVOLVE SWIMMING POOLS BUT RATHER PUBLIC SCHOOLS, AN ENTERPRISE
WE HAVE DESCRIBED AS "PERHAPS THE MOST IMPORTANT FUNCTION OF STATE AND
LOCAL GOVERNMENTS."  BROWN V. BOARD OF EDUCATION, SUPRA, AT 493.  MORE
IMPORTANT, THE LAWS STRUCK DOWN IN BUSH WERE PART OF AN ELABORATE
PACKAGE OF LEGISLATION THROUGH WHICH LOUISIANA SOUGHT TO MAINTAIN
PUBLIC EDUCATION ON A SEGREGATED BASIS, NOT TO END PUBLIC EDUCATION. 
SEE ALSO BUSH V. ORLEANS PARISH SCHOOL BOARD, 188 F.SUPP.  916 (ED LA.
1960).  OF COURSE THERE WAS NO SERIOUS PROBLEM OF PROBING THE MOTIVES
OF A LEGISLATURE IN BUSH BECAUSE MOST OF THE LOUISIANA STATUTES
EXPLICITLY STATED THEY WERE DESIGNED TO FORESTALL INTEGRATED SCHOOLS. 
187 F.SUPP.,AT 45. 

/7/  TR. OF ORAL ARG. 31-32. 

/8/  THERE IS NO QUESTION BEFORE US HERE WHETHER THE BLACK CITIZENS
OF JACKSON MAY BE ENTITLED TO UTILIZE THE SWIMMING FACILITIES OF
LEAVELL WOODS POOL.  NOTHING ON THE PRESENT RECORD INDICATES STATE
INVOLVEMENT IN THE RUNNING OF THAT POOL.  THE YMCA, WHICH APPARENTLY
NOW OPERATES THE POOL, WAS NOT JOINED AS A PARTY AND THUS, OF COURSE,
NO JUDGMENT COULD BE ENTERED AGAINST IT. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN THE OPINION OF MR. JUSTICE BLACK, BUT ADD A BRIEF COMMENT. 

THE ELIMINATION OF ANY NEEDED OR USEFUL PUBLIC ACCOMMODATION OR
SERVICE IS SURELY UNDESIRABLE AND THIS IS PARTICULARLY SO OF PUBLIC
RECREATIONAL FACILITIES.  UNFORTUNATELY THE GROWING BURDENS AND
SHRINKING REVENUES OF MUNICIPAL AND STATE GOVERNMENTS MAY LEAD TO MORE
AND MORE CURTAILMENT OF DESIRABLE SERVICES.  INEVITABLY EVERY SUCH
CONSTRICTION WILL AFFECT SOME GROUPS OR SEGMENTS OF THE COMMUNITY MORE
THAN OTHERS.  TO FUND AN EQUAL PROTECTION ISSUE IN EVERY CLOSING OF
PUBLIC SWIMMING POOLS, TENNIS COURTS, OR GOLF COURSES WOULD DISTORT
BEYOND REASON THE MEANING OF THAT IMPORTANT CONSTITUTIONAL GUARANTEE. 
TO HOLD, AS PETITIONERS WOULD HAVE US DO, THAT EVERY PUBLIC FACILITY OR
SERVICE, ONCE OPENED, CONSTITUTIONALLY "LOCKS IN" THE PUBLIC SPONSOR SO
THAT IT MAY NOT BE DROPPED (SEE THE FOOTNOTE TO MR. JUSTICE BLACKMUN'S
CONCURRING OPINION), WOULD PLAINLY DISCOURAGE THE EXPANSION AND
ENLARGMENT OF NEEDED SERVICES IN THE LONG RUN. 

WE ARE, OF COURSE, NOT DEALING WITH THE WISDOM OR DESIRABILITY OF
PUBLIC SWIMMING POOLS; WE ARE ASKED TO HOLD ON A VERY MEAGER RECORD
THAT THE CONSTITUTION REQUIRES THAT PUBLIC SWIMMING POOLS, ONCE OPENED,
MAY NOT BE CLOSED.  BUT ALL THAT IS GOOD IS NOT COMMANDED BY THE
CONSTITUTION AND ALL THAT IS BAD IS NOT FORBIDDEN BY IT.  WE WOULD DO A
GRAVE DISSERVICE, BOTH TO ELECTED OFFICIALS AND TO THE PUBLIC, WERE WE
TO REQUIRE THAT EVERY DECISION OF LOCAL GOVERNMENTS TO TERMINATE A
DESIRABLE SERVICE BE SUBJECTED TO A MICROSCOPIC SCRUTINY FOR FORBIDDEN
MOTIVES RENDERING THE DECISION UNCONSTITUTIONAL. 

MR. JUSTICE BLACKMUN, CONCURRING. 

I, TOO, JOIN MR. JUSTICE BLACK'S OPINION AND THE JUDGMENT OF THE
COURT. 

CASES SUCH AS THIS ARE "HARD" CASES FOR THERE IS MUCH TO BE SAID ON
EACH SIDE.  IN ISOLATION THIS LITIGATION MAY NOT BE OF GREAT
IMPORTANCE; HOWEVER, IT MAY HAVE SIGNIFICANT IMPLICATIONS. 

THE DISSENT OF MR. JUSTICE WHITE RESTS ON A CONVICTION THAT THE
CLOSING OF THE JACKSON POOLS WAS RACIALLY MOTIVATED, AT LEAST IN PART,
AND THAT MUNICIPAL ACTION SO MOTIVATED IS NOT TO BE TOLERATED.  THAT
DISSENT BUILDS TO ITS CONCLUSION WITH A DETAILED REVIEW OF THE CITY'S
AND THE STATE'S OFFICIAL ATTITUDES OF PAST YEARS. 

MR. JUSTICE BLACK'S OPINION STRESSES, ON THE OTHER HAND, THE
FACIALLY EQUAL EFFECT UPON ALL CITIZENS OF THE DECISION TO DISCONTINUE
THE POOLS.  IT ALSO EMPHASIZES THE DIFFICULTY AND UNDESIRABILITY OF
RESTING ANY CONSTITUTIONAL DECISION UPON WHAT IS CLAIMED TO BE
LEGISLATIVE MOTIVATION. 

I REMAIN IMPRESSED WITH THE FOLLOWING FACTORS:  (1) NO OTHER
MUNICIPAL RECREATIONAL FACILITY IN THE CITY OF JACKSON HAS BEEN
DISCONTINUED.  INDEED, EVERY OTHER SERVICE-- PARKS, AUDITORIUMS, GOLF
COURSES, ZOO-- THAT ONCE WAS SEGREGATED, HAS BEEN CONTINUED AND
OPERATES ON A NONSEGREGATED BASIS.  ONE MUST CONCEDE THAT THIS WAS
EFFECTUATED INITIALLY UNDER PRESSURE OF THE 1962 DECLARATORY JUDGMENT
OF THE FEDERAL COURT.  (2) THE POOLS ARE NOT PART OF THE CITY'S
EDUCATIONAL SYSTEM.  THEY ARE A GENERAL MUNICIPAL SERVICE OF THE NICE
TO-HAVE BUT NOT ESSENTIAL VARIETY, AND THEY ARE A SERVICE, PERHAPS A
LUXURY, NOT ENJOYED BY MANY COMMUNITIES.  (3) THE POOLS HAD OPERATED AT
A DEFICIT.  IT WAS THE JUDGMENT OF THE CITY OFFICIALS THAT THESE
DEFICITS WOULD INCREASE.  (4) I CANNOT READ INTO THE CLOSING OF THE
POOLS AN OFFICIAL EXPRESSION OF INFERIORITY TOWARD BLACK CITIZENS, AS
MR. JUSTICE WHITE AND THOSE WHO JOIN HIM REPETITIVELY ASSERT, POST, AT
240-241, 266, AND 268, AND CERTAINLY ON THIS RECORD I CANNOT PERCEIVE
THIS TO BE A "FACT" OR ANYTHING OTHER THAN SPECULATION.  FURTHERMORE,
THE ALLEGED DETERRENT TO RELIEF, SAID TO EXIST BECAUSE OF THE RISK OF
LOSING OTHER PUBLIC FACILITIES, POST, AT 269, IS NOT DETECTABLE HERE IN
THE FACT OF THE CONTINUED AND DESEGREGATED PRESENCE OF ALL OTHER
RECREATIONAL FACILITIES PROVIDED BY THE CITY OF JACKSON.  (5) THE
RESPONSE OF PETITIONERS' COUNSEL AT ORAL ARGUMENT TO MY INQUIRY /1/
WHETHER THE CITY WAS TO BE "LOCKED IN" WITH ITS POOLS FOR AN INDEFINITE
TIME IN THE FUTURE, DESPITE FINANCIAL LOSS OF WHATEVER AMOUNT, JUST
BECAUSE AT ONE TIME THE POOLS OF JACKSON HAD BEEN SEGREGATED, IS
DISTURBING. 

THERE ARE, OF COURSE, OPPOSING CONSIDERATIONS ENUMBERATED IN THE TWO
DISSENTING OPINIONS.  AS MY BROTHERS BLACK, DOUGLAS, AND WHITE ALL
POINT OUT, HOWEVER, THE COURT'S PAST CASES DO NOT PRECISELY CONTROL
THIS ONE, AND THE PRESENT CASE, IF REVERSED, WOULD TAKE US FARTHER THAN
ANY BEFORE.  ON BALANCE, IN THE LIGHT OF THE FACTORS I HAVE LISTED
ABOVE, MY JUDGMENT IS THAT THIS IS NEITHER THE TIME NOR THE OCCASION TO
BE PUNITIVE TOWARD JACKSON FOR ITS PAST CONSTITUTIONAL SIMS OF
SEGREGATION.  ON THE RECORD AS PRESENTED TO US IN THIS CASE, I
THEREFORE VOTE TO AFFIRM. 

/1/  "Q.  MR. ROSEN, IF YOU WERE TO PREVAIL HERE, WOULD THE CITY OF
JACKSON BE LOCKED IN TO OPERATING THE POOLS IRRESPECTIVE OF THE
ECONOMIC CONSEQUENCES OF THAT OPERATION? 

"A.  IF THE QUESTION IS FOREVER.  IF IT WAS PURELY AN ECONOMIC
PROBLEM, HAVING NOTHING TO DO WITH RACE, OR OPPOSITION TO INTEGRATION,
THEY COULD HANDLE THAT PROBLEM THE WAY ANY COMMUNITY HANDLES THAT
PROBLEM, IF IT IS PURELY AN ECONOMIC DECISION.  BUT IF IT BECOMES A
CONSIDERATION OF RACE, WHICH CREATES THE ECONOMIC DIFFICULTIES, THEN IT
SEEMS TO ME THAT THIS COURT IN NUMEROUS DECISIONS HAS ANSWERED THAT
QUESTION.  IT ANSWERED IT IN WATSON, IT ANSWERED IT IN BROWN, AND IT
ANSWERED IT IN GREEN. 

"Q.  WELL, THIS IS IN THE PREMISE OF MY QUESTION, FOR YOU TO PREVAIL
HERE, THIS RACIAL OVERTONE, I WILL ASSUME, YOU MUST CONCEDE MUST BE
PRESENT.  NOW SUPPOSE YOU PREVAIL, AND SUPPOSE THEY LOSE ECONOMICALLY
YEAR AFTER YEAR BY INCREASING AMOUNTS.  MY QUESTION IS, ARE THEY LOCKED
IN FOREVER? 

"A.  IF THE QUESTION IS, ARE THEY LOCKED IN FOREVER BECAUSE OF
RACIAL PROBLEMS WHICH CAUSE A RISE IN ECONOMIC DIFFICULTIES IN
OPERATING THE POOL, MY ANSWER IS THAT THEY WOULD BE LOCKED IN."  TR. OF
ORAL ARG. 43-44. 

MR. JUSTICE DOUGLAS, DISSENTING. 

JACKSON, MISSISSIPPI, CLOSED ALL THE SWIMMING POOLS OWNED AND
OPERATED BY IT, FOLLOWING A JUDGMENT OF THE COURT OF APPEALS IN CLARK
V. THOMPSON, 313 F.2D 637, WHICH AFFIRMED THE DISTRICT COURT'S GRANT OF
A DECLARATORY JUDGMENT THAT THREE NEGROES WERE ENTITLED TO THE
DESEGRATED USE OF THE CITY'S SWIMMING POOLS.  206 F.SUPP.  539.  NO
MUNICIPAL SWIMMING FACILITIES HAVE BEEN OPENED TO ANY CITIZEN OF EITHER
RACE SINCE THAT TIME; AND THE CITY APPARENTLY DOES NOT INTEND TO REOPEN
THE POOLS ON AN INTEGRATED BASIS. 

THAT PROGRAM IS NOT, HOWEVER, PERMISSIBLE IF IT DENIES RIGHTS
CREATED OR PROTECTED BY THE CONSTITUTION.  BUCHANAN V. WARLEY, 245 U.S.
60, 81.  I THINK THAT THE PLAN HAS THAT CONSTITUTIONAL DEFECT; AND THAT
IS THE BURDEN OF THIS DISSENT. 

HUNTER V. ERICKSON, 393 U.S. 385, REITMAN V. MULKEY, 387 U.S. 369,
AND GRIFFIN V. COUNTY SCHOOL BOARD, 377 U.S. 218, DO NOT PRECISELY
CONTROL THE PRESENT CASE.  THEY ARE DIFFERENT BECAUSE THERE STATE
ACTION PERPETUATED ONGOING REGIMES OF RACIAL DISCRIMINATION IN WHICH
THE STATE WAS IMPLICATED. 

IN GRIFFIN, THE STATE CLOSED PUBLIC SCHOOLS IN ONE COUNTY ONLY, NOT
IN THE OTHERS, AND MEANWHILE CONTRIBUTED TO THE SUPPORT OF PRIVATE
SEGREGATED WHITE SCHOOLS.  377 U.S.,AT 232.  THAT, OF COURSE, WAS A
CONTINUATION OF SEGREGATION IN ANOTHER FORM.  IN HUNTER A CITY PASSED A
HOUSING LAW WHICH PROVIDED THAT BEFORE AN ORDINANCE REGULATING THE SALE
OR LEASE OF REALTY ON THE BASIS OF RACE COULD BECOME EFFECTIVE IT HAD
TO BE APPROVED BY A MAJORITY VOTE.  THUS THE PROTECTION OF MINORITY
INTERESTS BECAME MUCH MORE DIFFICULT.  /1/  WE HELD THAT A STATE AGENCY
COULD NOT IN ITS VOTING SCHEME SO DISADVANTAGE NEGRO INTERESTS.  IN
REITMAN THE STATE REPEALED LEGISLATION PROHIBITING RACIAL
DISCRIMINATION IN HOUSING, THUS ENCOURAGING RACIAL DISCRIMINATION IN
THE HOUSING MARKET.  387 U.S.,AT 376. 

WHETHER, IN THE CLOSING OF ALL MUNICIPAL SWIMMING POOLS IN JACKSON,
MISSISSIPPI, ANY ARTIFICES AND DEVICES WERE EMPLOYED AS IN BURTON V.
WILMINGTON PARKING AUTHORITY, 365 U.S. 715, TO MAKE THE APPEARANCE NOT
CONFORM TO THE REALITY, IS NOT SHOWN BY THIS RECORD.  UNDER BURTON, IF
THE STATE HAS A CONTINUING CONNECTION WITH A SWIMMING POOL, IT BECOMES
A PUBLIC FACILITY AND THE STATE IS UNDER OBLIGATION TO SEE THAT THE
OPERATORS MEET ALL FOURTEENTH AMENDMENT RESPONSIBILITIES.  365 U.S.,AT
725.  WE MAY NOT REVERSE UNDER BURTON BECAUSE WE DO NOT KNOW WHAT THE
RELEVANT FACTS ARE. 

CLOSER IN POINT IS BUSH V. ORLEANS PARISH SCHOOL BOARD, 187 F.SUPP. 
42, AFF'D, 365 U.S. 569.  LOUISIANA, AS PART OF HER STRATEGY TO AVOID A
DESEGRATED PUBLIC SCHOOL SYSTEM, AUTHORIZED THE GOVERNOR TO CLOSE ANY
PUBLIC SCHOOL ORDERED TO BE INTEGRATED.  THE THREE-JUDGE DISTRICT COURT
RELYING ON COOPER V. AARON, 358 U.S. 1, 17, HELD THAT THE ACT WAS
UNCONSTITUTIONAL AND ENJOINED THE GOVERNOR FROM ENFORCING IT. THE
DISTRICT COURT DECISION WAS SO CLEARLY CORRECT THAT WE WROTE NO OPINION
WHEN WE AFFIRMED THE THREE-JUDGE COURT.  WHILE THERE WERE OTHER
LOUISIANA LAWS ALSO HELD UNCONSTITUTIONAL AS PERPETUATING A STATE
SEGREGATED SCHOOL SYSTEM, THE ONE GIVING THE GOVERNOR THE RIGHT TO
CLOSE ANY PUBLIC SCHOOL ORDERED INTEGRATED SEEMS INDISTINGUISHABLE FROM
THIS ONE.     MAY A STATE IN ORDER TO AVOID INTEGRATION OF THE RACES
ABOLISH ALL OF ITS PUBLIC SCHOOLS?  THAT WOULD DEDICATE THE STATE TO
BACKWARDNESS, IGNORANCE, AND EXISTENCE IN A NEW DARK AGE.  YET IS THERE
ANYTHING IN THE CONSTITUTION THAT SAYS THAT A STATE MUST HAVE A PUBLIC
SCHOOL SYSTEM?  COULD A FEDERAL COURT ENJOIN THE DISMANTLING OF A
PUBLIC SCHOOL SYSTEM?  COULD A FEDERAL COURT ORDER A CITY TO LEVY THE
TAXES NECESSARY TO CONSTRUCT A PUBLIC SCHOOL SYSTEM?  SUCH SUPERVISION
OVER MUNICIPAL AFFAIRS BY FEDERAL COURTS WOULD BE A VAST UNDERTAKING,
CONCEIVABLY ENCOMPASSING SCHOOLS, PARKS, PLAYGROUNDS, CIVIC
AUDITORIUMS, TENNIS COURTS, ATHLETIC FIELDS, AS WELL AS SWIMMING
POOLS. 

MY CONCLUSION IS THAT THE NINTH AMENDMENT HAS A BEARING ON THE
PRESENT PROBLEM.  IT PROVIDES: 

     "THE ENUMERATION IN THE CONSTITUTION, OF CERTAIN RIGHTS, SHALL

  NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE

  PEOPLE." 

RIGHTS, NOT EXPLICITLY MENTIONED IN THE CONSTITUTION, HAVE AT TIMES
BEEN DEEMED SO ELEMENTARY TO OUR WAY OF LIFE THAT THEY HAVE BEEN
LABELED AS BASIC RIGHTS.  SUCH IS THE RIGHT TO TRAVEL FROM STATE TO
STATE.  UNITED STATES V. GUEST, 383 U.S. 745, 758.  SUCH IS ALSO THE
RIGHT TO MARRY.  LOVING V. VIRGINIA, 388 U.S. 1, 12.  THE "RIGHTS"
RETAINED BY THE PEOPLE WITHIN THE MEANING OF THE NINTH AMENDMENT MAY BE
RELATED TO THOSE "RIGHTS" WHICH ARE ENUMERATED IN THE CONSTITUTION. 
THUS THE FOURTH AMENDMENT SPEAKS OF THE "RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS" AND PROTECTS IT
BY WELL-KNOWN PROCEDURAL DEVICES.  BUT WE HAVE HELD THAT THAT
ENUMERATED "RIGHT" ALSO HAS OTHER FACETS COMMONLY SUMMARIZED IN THE
CONCEPT OF PRIVACY.  GRISWOLD V. CONNECTICUT, 381 U.S. 479. 

THERE IS, OF COURSE, NOT A WORD IN THE CONSTITUTION, UNLIKE MANY
MODERN CONSTITUTIONS, CONCERNING THE RIGHT OF THE PEOPLE TO EDUCATION
OR TO WORK OR TO RECREATION BY SWIMMING OR OTHERWISE.  THOSE RIGHTS,
LIKE THE RIGHT TO PURE AIR AND PURE WATER, MAY WELL BE RIGHTS "RETAINED
BY THE PEOPLE" UNDER THE NINTH AMENDMENT.  MAY THE PEOPLE VOTE THEM
DOWN AS WELL AS UP? 

A STATE MAY NOT, OF COURSE, INTERFERE WITH INTERSTATE COMMERCE; AND
TO THE EXTENT THAT PUBLIC SERVICES ARE RENDERED BY INTERSTATE AGENCIES
THE STATE BY REASON OF THE SUPREMACY CLAUSE IS POWERLESS TO ESCAPE. 
THE RIGHT TO VOTE IS A CIVIL RIGHT GUARANTEED BY THE CONSTITUTION AS WE
RECENTLY RE-EMPHASIZED IN OREGON V. MITCHELL, 400 U.S. 112.  IN
ANDERSON V. MARTIN, 375 U.S. 399, THE STATE REQUIRED DESIGNATION ON THE
BALLOTS OF EVERY CANDIDATE'S RACE.  WE SAID: 

"IN THE ABSTRACT, LOUISIANA IMPOSES NO RESTRICTION UPON ANYONE'S
CANDIDACY NOR UPON AN ELECTOR'S CHOICE IN THE CASTING OF HIS BALLOT. 
BUT BY PLACING A RACIAL LABEL ON A CANDIDATE AT THE MOST CRUCIAL STAGE
IN THE ELECTORAL PROCESS-- THE INSTANT BEFORE THE VOTE IS CAST-- THE
STATE FURNISHES A VEHICLE BY WHICH RACIAL PREJUDICE MAY BE SO AROUSED
AS TO OPERATE AGAINST ONE GROUP BECAUSE BY DIRECTING THE CITIZEN'S
ATTENTION TO THE SINGLE CONSIDERATION OF RACE OR COLOR, THE STATE
INDICATES THAT A CANDIDATE'S RACE OR COLOR IS AN IMPORTANT-- PERHAPS
PARAMOUNT-- CONSIDERATION IN THE CITIZEN'S CHOICE, WHICH MAY DECISIVELY
INFLUENCE THE CITIZEN TO CAST HIS BALLOT ALONG RACIAL LINES."  375
U.S.,AT 402. 

A CONSTITUTIONAL RIGHT CANNOT BE SO BURDENED.  WE STATED IN WEST
VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 638, THAT:
"ONE'S RIGHT TO LIFE, LIBERTY, AND PROPERTY . . . AND OTHER
FUNDAMENTAL RIGHTS MAY NOT BE SUBMITTED TO VOTE; THEY DEPEND ON THE
OUTCOME OF NO ELECTIONS."  AND WE ADDED IN LUCAS V. COLORADO GENERAL
ASSEMBLY, 377 U.S. 713, 736-737, "A CITIZEN'S CONSTITUTIONAL RIGHTS CAN
HARDLY BE INFRINGED SIMPLY BECAUSE A MAJORITY OF THE PEOPLE CHOOSE THAT
(THEY) BE."  THUS THE RIGHT OF PRIVACY, WHICH WE HONORED IN GRISWOLD,
MAY NOT BE OVERTURNED BY A MAJROITY VOTE AT THE POLLS, SHORT OF A
CONSTITUTIONAL AMENDMENT. 

IN DETERMINING WHAT MUNICIPAL SERVICES MAY NOT BE ABOLISHED THE
COURT OF APPEALS DREW THE LINE BETWEEN "AN ESSENTIAL PUBLIC FUNCTION"
AND OTHER PUBLIC FUNCTIONS.  WHETHER STATE CONSTITUTIONS DRAW THAT LINE
IS NOT OUR CONCERN.  CERTAINLY THERE ARE NO FEDERAL CONSTITUTIONAL
PROVISIONS WHICH MAKE THAT DISTINCTION. 

CLOSING OF THE POOLS PROBABLY WORKS A GREATER HARDSHIP ON THE POOR
THAN ON THE RICH; AND IT MAY WORK GREATER HARSHIP ON POOR NEGROES THAN
ON POOR WHITES, A MATTER ON WHICH WE HAVE NO LIGHT.  CLOSING OF THE
POOLS WAS AT LEAST IN PART RACIALLY MOTIVATED.  AND, AS STATED BY THE
DISSENTERS IN THE COURT OF APPEALS: 

     "THE CLOSING OF THE CITY'S POOLS HAS DONE MORE THAN DEPRIVE A

  FEW THOUSAND NEGROES OF THE PLEASURES OF SWIMMING.  IT HAS TAUGHT

  JACKSON'S NEGROES A LESSON:  IN JACKSON THE PRICE OF PROTEST IS

 HIGH.  NEGROES THERE NOW KNOW THAT THEY RISK LOSING EVEN

  SEGREGATED PUBLIC FACILITIES IF THEY DARE TO PROTEST

SEGGREGATION.  NEGROES WILL NOT THINK TWICE BEFORE PROTESTING

  SEGREGATED PUBLIC PARKS, SEGREGATED PUBLIC LIBRARIES, OR OTHER

  SEGREGATED FACILITIES.  THEY MUST FIRST DECIDE WHETHER THEY WISH

  TO RISK LIVING WITHOUT THE FACILITY ALTOGETHER, AND AT THE SAME

  TIME ENGENDERING FURTHER ANIMOSITY FROM A WHITE COMMUNITY WHICH

  HAS LOST ITS PUBLIC FACILITIES ALSO THROUGH THE NEGROES' ATTEMPTS

  TO DESEGREGATE THESE FACILITIES. 

     "THE LONG-RANGE EFFECTS ARE MANIFOLD AND FARREACHING.  IF THE

  CITY'S POOLS MAY BE ELIMINATED FROM THE PUBLIC DOMAIN, PARKS,

  ATHLETIC ACTIVITIES, AND LIBRARIES ALSO MAY BE CLOSED.  NO ONE

  CAN SAY HOW MANY OTHER CITIES MAY ALSO CLOSE THEIR POOLS OR OTHER

  PUBLIC FACILITIES.  THE CITY'S ACTION TENDS TO SEPARATE THE

RACES, ENCOURAGE PRIVATE DISCRIMINATION, AND RAISE SUBSTANTIAL

  OBSTACLES FOR NEGROES ASSERTING THE RIGHTS OF NATIONAL

  CITIZENSHIP CREATED BY THE WARTIME AMENDMENTS."  419 F.2D 1222,

  1236. 

THAT VIEW HAS STRONG FOOTING IN OUR DECISIONS.  "THE CLEAR AND
CENTRAL PURPOSE OF THE FOURTEENTH AMENDMENT WAS TO ELIMINATE ALL
OFFICIAL STATE SOURCES OF INVIDIOUS RACIAL DISCRIMINATION IN THE
STATES."  LOVING V. VIRGINIA, 388 U.S.,AT 10.  CF. MCLAUGHLIN V.
FLORIDA, 379 U.S. 184, 196.  WHEN THE EFFECT IS "TO CHILL THE ASSERTION
OF CONSTITUTIONAL RIGHTS BY PENALIZING THOSE WHO CHOOSE TO EXERCISE
THEM" (UNITED STATES V. JACKSON, 390 U.S. 570, 581) THAT STATE ACTION
IS "PATENTLY UNCONSTITUTIONAL." 

WHILE CHIEF JUSTICE MARSHALL INTIMATED IN FLETCHER V. PECK, 6 CRANCH
87, 130, THAT THE MOTIVES WHICH DOMINATE OR INFLUENCE LEGISLATORS IN
ENACTING LAWS ARE NOT FIT FOR JUDICIAL INQUIRY, WE DO LOOK CLOSELY AT
THE THRUST OF A LAW TO DETERMINE WHETHER IN PURPOSE OR EFFECT THERE WAS
AN INVASION OF CONSTITUTIONAL RIGHTS.  SEE EPPERSON V. ARKANSAS, 393
U.S. 97, 109; GRIFFIN V. COUNTY SCHOOL BOARD, 377 U.S.,AT 231.  A
CANDIDATE MAY BE DEFEATED BECAUSE THE VOTERS ARE BIGOTS.  A RACIAL
ISSUE MAY INFLAME A COMMUNITY CAUSING IT TO VOTE A HUMANE MEASURE
DOWN.  THE FEDERAL JUDICIARY CANNOT BECOME INVOLVED IN THOSE KINDS OF
CONTROVERSIES.  THE QUESTION FOR THE FEDERAL JUDICIARY IS NOT WHAT THE
MOTIVE WAS, BUT WHAT THE CONSEQUENCES ARE. 

IN REITMAN AN ACTIVE HOUSING PROGRAM HAD BEEN RACIALLY DOMINATED AND
THEN CONTROLLED BY A STATE LAW ENDING DISCRIMINATION.  BUT IN TIME THE
STATE REVERSED ITS POLICY AND LIFTED THE ANTI-DISCRIMINATION CONTROLS. 
THUS IT LAUNCHED OR AT LEAST TOLERATED A REGIME OF RACIALLY
DISCRIMINATORY HOUSING. 

IT IS EARNESTLY ARGUED THAT THE SAME RESULT OBTAINS HERE BECAUSE THE
REGIME OF DESEGREGATED SWIMMING DECREED BY THE DISTRICT COURT IS ENDED
AND IS SUPPLANTED BY STATE-INSPIRED, STATE-FAVORED PRIVATE SWIMMING
POOLS BY CLUBS AND OTHERS WHICH PERPETUATE SEGREGATION. 

WE ARE TOLD THAT THE HISTORY OF THIS EPISODE SHOWS THE "STEEL-HARD,
INFLEXIBLE, UNDEVIATING OFFICIAL POLICY OF SEGREGATION" IN
MISSISSIPPI.  UNITED STATES V. CITY OF JACKSON, 318 F.2D 1, 5. 

I BELIEVE THAT FREEDOM FROM DISCRIMINATION BASED ON RACE, CREED, OR
COLOR HAS BECOME BY REASON OF THE THIRTEENTH, FOURTEENTH, AND FIFTEENTH
AMENDMENTS ONE OF THE "ENUMERATED RIGHTS" UNDER THE NINTH AMENDMENT
THAT MAY NOT BE VOTED UP OR VOTED DOWN. 

MUCH HAS BEEN WRITTEN CONCERNING THE NINTH AMENDMENT INCLUDING THE
SUGGESTION THAT THE RIGHTS THERE SECURED INCLUDE "RIGHTS OF NATURAL
ENDOWMENT."  /2/  B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT 53
(1955). 

MR. JUSTICE GOLDBERG, CONCURRING IN GRISWOLD V. CONNECTICUT, SUPRA,
AT 492, SAID: 

    "(THE NINTH AMENDMENT SHOWS A BELIEF OF THE CONSTITUTION'S

  AUTHORS THAT FUNDAMENTAL RIGHTS EXIST THAT ARE NOT EXPRESSLY

  ENUMERATED IN THE FIRST EIGHT AMENDMENTS AND AN INTENT THAT THE

  LIST OF RIGHTS INCLUDED THERE NOT BE DEEMED EXHAUSTIVE."  /3/ 

WE NEED NOT REACH THAT PREMISE IN THIS CASE.  WE DEAL HERE WITH
ANALOGIES TO RIGHTS SECURED BY THE BILL OR RIGHTS OR BY THE
CONSTITUTION ITSELF.  FRANKLIN, THE NINTH AMENDMENT AS CIVIL LAW METHOD
AND ITS IMPLICATIONS FOR REPUBLICAN FORM OF GOVERNMENT, 40 TUL.L.REV. 
487, 490-492 (1966); REDLICH, ARE THERE "CERTAIN RIGHTS . . . RETAINED
BY THE PEOPLE"?, 37 N.Y.U.L.REV.  787, 810-812 (1962); BLACK, THE
UNFINISHED BUSINESS OF THE WARREN COURT, 46 WASH.L.REV.  3, 37-45
(1970); KUTNER, THE NEGLECTED NINTH AMENDMENT:  THE "OTHER RIGHTS"
RETAINED BY THE PEOPLE, 51 MARQ.L.REV.  121, 134-137 (1968). 

"THE FOURTEENTH AMENDMENT AND THE TWO ESCORTING AMENDMENTS ESTABLISH
A PRINCIPLE OF ABSOLUTE EQUALITY, AN EQUALITY WHICH IS DENIED BY RACIAL
SEPARATION OR SEGREGATION BECAUSE THE SEPARATION IN TRUTH CONSECRATES A
HIERARCHY OF RACIAL RELATIONS, AND HENCE PERMITS INEQUALITY."  /4/ 

THE SOLICITOR GENERAL SAYS: 

"(TO THE EXTENT THAT THE MUNICIPALITY HAD VOLUNTARILY UNDERTAKEN TO
PROVIDE SWIMMING FACILITIES FOR ITS CITIZENS, MAKING IT UNNECESSARY FOR
THE PRIVATE SECTOR TO DEVELOP EQUALLY ADEQUATE FACILITIES, THE CLOSING
OF THE POOLS HAS INSURED THAT RACIAL SEGREGATION WILL BE PERPETUATED." 

OUR CASES CONDEMN THE CREATION OF STATE LAWS AND REGULATIONS WHICH
FOSTER RACIAL DISCRIMINATION-- SEGREGATED SCHOOLS, SEGREGATED PARKS,
AND THE LIKE.  THE PRESENT CASE, TO BE SURE, IS ONLY AN ANALOGY.  THE
STATE ENACTS NO LAW SAYING THAT THE RACES MAY NOT SWIM TOGETHER.  YET
IT ELIMINATES ALL ITS SWIMMING POOLS SO THAT THE RACES WILL NOT HAVE
THE OPPORTUNITY TO SWIM TOGETHER.  WHILE RACIALLY MOTIVATED STATE
ACTION IS INVOLVED, IT IS OF AN ENTIRELY NEGATIVE CHARACTER.  YET IT IS
IN THE PENUMBRA /5/  OF THE POLICIES OF THE THIRTEENTH, FOURTEENTH, AND
FIFTEENTH AMENDMENTS AND AS A MATTER OF CONSTITUTIONAL POLICY SHOULD BE
IN THE CATEGORY OF THOSE ENUMERATED RIGHTS PROTECTED BY THE NINTH
AMENDMENT.  IF NOT INCLUDED, THOSE RIGHTS BECOME NARROW LEGALISTIC
CONCEPTS WHICH TURN ON THE FORMALISM OF LAWS, NOT ON THEIR SPIRIT. 

I CONCLUDE THAT THOUGH A STATE MAY DISCONTINUE ANY OF ITS MUNICIPAL
SERVICES-- SUCH AS SCHOOLS, PARKS, POOLS, ATHLETIC FIELDS, AND THE LIKE
- IT MAY NOT DO SO FOR THE PURPOSE OF PERPETUATING OR INSTALLING
APARTHEID OR BECAUSE IT FINDS LIFE IN A MULTI-RACIAL COMMUNITY
DIFFICULT OR UNPLEASANT.  IF THAT IS ITS REASON, THEN ABOLITION OF A
DESIGNATED PUBLIC SERVICE BECOMES A DEVICE FOR PERPETUATING A
SEGREGATED WAY OF LIFE.  THAT A STATE MAY NOT DO. 

AS MR. JUSTICE BRENNAN SAID IN EVANS V. ABNEY, 396 U.S. 435, 453
(DISSENTING), WHERE A STATE ABANDONED A PART OF AVOID INTEGRATION: 

     "I HAVE NO DOUBT THAT A PUBLIC PARK MAY CONSTITUTIONALLY BE

  CLOSED DOWN BECAUSE IT IS TOO EXPENSIVE TO RUN OR HAS BECOME

  SUPERFLUOUS, OR FOR SOME OTHER REASON, STRONG OR WEAK, OR FOR NO

  REASON AT ALL.  BUT UNDER THE EQUAL PROTECTION CLAUSE A STATE MAY

  NOT CLOSE DOWN A PUBLIC FACILITY SOLELY TO AVOID ITS DUTY TO

  DESEGREGATE THAT FACILITY." 

HUNTER AND REITMAN WENT TO THE VERGE OF THAT PROBLEM.  BUSH WENT THE
WHOLE WAY.  WE SHOULD REAFFIRM WHAT OUR SUMMARY AFFIRMANCE OF BUSH
PLAINLY IMPLIED. 

/1/  JAMES V. VALTIERRA, 402 U.S. 137, UNDERTOOK TO DISTINGUISH
HUNTER ON THE GROUND THAT THE CALIFORNIA REFERENDUM ON LOW-RENT HOUSING
WHICH SUBMITTED THE ISSUE TO MAJORITY VOTE WAS "NEUTRAL ON ITS FACE"
AND NOT "AIMED AT A RACIAL MINORITY."  THE REGIME OF HUNTER, THEREFORE,
REMAINS UNDISBURBED.  YET THERE WAS NO ANSWER TO THE CLAIM THAT A
REFERENDUM SOLELY FOR HOUSING FOR THE POOR VIOLATES THE EQUAL
PROTECTION CLAUSE.  HOWEVER THAT MAY BE, IN THE INSTANT CASE THE TARGET
WAS NOT THE POOR, BUT A RACIAL MINORITY. 

/2/  AND SEE COMMENT, NINTH AMENDMENT VINDICATION OF UNENUMERATED
FUNDAMENTAL RIGHTS, 42 TEMPLE L.Q. 46, 53-56 (1968); BERTELSMAN, THE
NINTH AMENDMENT AND DUE PROCESS OF LAW-- TOWARD A VIABLE THEORY OF
UNENUMERATED RIGHTS, 37 U.CIN.L.REV.  777, 787 ET SEQ. (1968);
FORKOSCH, DOES "SECURE THE BLESSINGS OF LIBERTY" MANDATE GOVERNMENTAL
ACTION?, 1 ARIZ.ST.L.J. 17, 32 (1970). 

/3/  "NOR AM I TURNING SOMERSAULTS WITH HISTORY IN ARGUING THAT THE
NINTH AMENDMENT IS RELEVANT IN A CASE DEALING WITH A STATE'S
INFRINGEMENT OF A FUNDAMENTAL RIGHT.  WHILE THE NINTH AMENDMENT-- AND
INDEED THE ENTIRE BILL OF RIGHTS-- ORIGINALLY CONCERNED RESTRICTIONS
UPON FEDERAL POWER, THE SUBSEQUENTLY ENACTED FOURTEENTH AMENDMENT
PROHIBITS THE STATES AS WELL FROM ABRIDGING FUNDAMENTAL PERSONAL
LIBERTIES.  AND, THE NINTH AMENDMENT, IN INDICATING THAT NOT ALL SUCH
LIBERTIES ARE SPECIFICALLY MENTIONED IN THE FIRST EIGHT AMENDMENTS, IS
SURELY RELEVANT IN SHOWING THE EXISTENCE OF OTHER FUNDAMENTAL PERSONAL
RIGHTS, NOW PROTECTED FROM STATE, AS WELL AS FEDERAL, INFRINGEMENT.  IN
SUM, THE NINTH AMENDMENT SIMPLY LENDS STRONG SUPPORT TO THE VIEW THAT
THE 'LIBERTY' PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS FROM
INFRINGEMENT BY THE FEDERAL GOVERNMENT OR THE STATES IS NOT RESTRICTED
TO RIGHTS SPECIFICALLY MENTIONED IN THE FIRST EIGHT AMENDMENTS."  381
U.S.,AT 493. 

/4/  FRANKLIN, THE RELATION OF THE FIFTH, NINTH AND FOURTEENTH
AMENDMENTS TO THE THIRD CONSTITUTION, 4 HOW.L.J. 170, 180 (1958). 
/5/  WHILE THE EQUAL PROTECTION CLAUSE PROTECTS INDIVIDUALS AGAINST
STATE ACTION, "THE INVOLVEMENT OF THE STATE" NEED NOT BE "EITHER
EXCLUSIVE OR DIRECT."  UNITED STATES V. GUEST, 383 U.S. 745, 755.  "IN
A VARIETY OF SITUATIONS THE COURT HAS FOUND STATE ACTION OF A NATURE
SUFFICIENT TO CREATE RIGHTS UNDER THE EQUAL PROTECTION CLAUSE EVEN
THOUGH THE PARTICIPATION OF THE STATE WAS PERIPHERAL, OR ITS ACTION WAS
ONLY ONE OF SEVERAL CO-OPERATIVE FORCES LEADING TO THE CONSTITUTIONAL
VIOLATION."  ID., AT 755-756. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

I AGREE WITH THE MAJORITY THAT THE CENTRAL PURPOSE OF THE FOURTEENTH
AMENDMENT IS TO PROTECT NEGROES FROM INVIDIOUS DISCRIMINATION. 
CONSISTENT WITH THIS VIEW, I HAD THOUGHT OFFICIAL POLICIES FORBIDDING
OR DISCOURAGING JOINT USE OF PUBLIC FACILITIES BY NEGROES AND WHITES
WERE AT WAR WITH THE EQUAL PROTECTION CLAUSE.  OUR CASES MAKE IT
UNQUESTIONABLY CLEAR, AS ALL OF US AGREE, THAT A CITY OR STATE MAY NOT
ENFORCE SUCH A POLICY BY MAINTAINING OFFICIALLY SEPARATE FACILITIES FOR
THE TWO RACES.  IT IS ALSO MY VIEW, BUT APPARENTLY NOT THAT OF THE
MAJORITY, THAT A STATE MAY NOT HAVE AN OFFICIAL STANCE AGAINST
DESEGREGATING PUBLIC FACILITIES AND IMPLEMENT IT BY CLOSING THOSE
FACILITIES IN RESPONSE TO A DESEGREGATION ORDER. 

LET US ASSUME A CITY HAS BEEN MAINTAINING SEGREGATED SWIMMING POOLS
AND IS ORDERED TO DESEGREGATE THEM.  ITS EXPRESS RESPONSE IS AN
OFFICIAL RESOLUTION DECLARING DESEGREGATION TO BE CONTRARY TO THE
CITY'S POLICY AND ORDERING THE FACILITIES CLOSED RATHER THAN CONTINUED
IN SERVICE ON A DESEGREGATED BASIS.  TO ME IT IS BEYOND CAVIL THAT ON
SUCH FACTS THE CITY IS ADHERING TO AN UNCONSTITUTIONAL POLICY AND IS
IMPLEMENTING IT BY ABANDONING THE FACILITIES.  IT WILL NOT DO IN SUCH
CIRCUMSTANCES TO SAY THAT WHITES AND NEGROES ARE BEING TREATED ALIKE
BECAUSE BOTH ARE DENIED USE OF PUBLIC SERVICES.  THE FACT IS THAT
CLOSING THE POOLS IS AN EXPRESSION OF OFFICIAL POLICY THAT NEGROES ARE
UNFIT TO ASSOCIATE WITH WHITES.  CLOSING POOLS TO PREVENT INTERRACIAL
SWIMMING IS LITTLE DIFFERENT FROM LAWS OR CUSTOMS FORBIDDING NEGROES
AND WHITES FROM EATING TOGETHER OR FROM COHABITING OR INTERMARRYING. 
SEE ADICKES V. S. H. KRESS & CO., 398 U.S. 144 (1970); LOVING V.
VIRGINIA, 388 U.S. 1 (1967); MCLAUGHLIN V. FLORIDA, 379 U.S. 184
(1964); LOMBARD V. LOUISIANA, 373 U.S. 267 (1963).  THE EQUAL
PROTECTION CLAUSE IS A HOLLOW PROMISE IF IT DOES NOT FORBID SUCH
OFFICIAL DENIGRATIONS OF THE RACE THE FOURTEENTH AMENDMENT WAS DESIGNED
TO PROTECT. 

THE CASE BEFORE US IS LITTLE, IF ANY, DIFFERENT FROM THE CASE JUST
DESCRIBED.  JACKSON, MISSISSIPPI, CLOSED ITS SWIMMING POOLS WHEN A
DISTRICT JUDGE STRUCK DOWN THE CITY'S TRADITION OF SEGREGATION IN
MUNICIPAL SERVICES AND MADE CLEAR HIS EXPECTATION THAT PUBLIC
FACILITIES WOULD BE INTEGRATED.  THE CIRCUMSTANCES SURROUNDING THIS
ACTION AND THE ABSENCE OF OTHER CREDIBLE REASONS FOR THE CLOSINGS LEAVE
LITTLE DOUBT THAT SHUTTING DOWN THE POOLS WAS NOTHING MORE OR LESS THAN
A MOST EFFECTIVE EXPRESSION OF OFFICIAL POLICY THAT NEGROES AND WHITES
MUST NOT BE PERMITTED TO MINGLE TOGETHER WHEN USING THE SERVICES
PROVIDED BY THE CITY. 

I AM QUITE UNPERSUADED BY THE MAJORITY'S ASSERTION THAT IT IS
IMPERMISSIBLE TO IMPEACH THE OTHERWISE VALID ACT OF CLOSING MUNICIPAL
SWIMMING POOLS BY RESORT TO EVIDENCE OF INVIDIOUS PURPOSE OR MOTIVE. 
CONGRESS HAS LONG PROVIDED CIVIL AND CRIMINAL REMEDIES FOR A VARIETY OF
OFFICIAL AND PRIVATE CONDUCT.  IN VARIOUS SITUATIONS THESE STATUTES AND
OUR INTERPRETATIONS OF THEM PROVIDE THAT SUCH CONDUCT FALLS WITHIN THE
FEDERAL PROSCRIPTION ONLY UPON PROOF OF FORBIDDEN RACIAL MOTIVE OR
ANIMUS.  AN OTHERWISE VALID REFUSAL TO CONTRACT THE SALE OF REAL ESTATE
FALLS WITHIN THE BAN OF 42 U.S.C. 1982 UPON PROOF THAT THE REFUSAL WAS
RACIALLY MOTIVATED.  JONES V. ALFRED H. MAYER CO., 392 U.S. 409
(1968).  A RESTAURANT'S REFUSAL TO SERVE A WHITE CUSTOMER IS ACTIONABLE
UNDER 42 U.S.C. 1983 WHERE THE EVIDENCE SHOWS THAT REFUSAL OCCURRED
BECAUSE THE WHITE WAS ACCOMPANIED BY NEGROES AND WAS PURSUANT TO A
STATE-ENFORCED CUSTOM OF RACIAL SEGREGATION.  ADICKES, SUPRA.  JUST
LAST WEEK IN GRIFFIN V. BRECKENRIDGE, ANTE, P. 88, WE CONSTRUED 42
U.S.C. 1985(3) TO REACH WHOLLY PRIVATE CONSPIRACIES-- IN THAT CASE TO
COMMIT ASSAULT ON NEGROES-- WHERE SUFFICIENT EVIDENCE OF "RACIAL . . .
ANIMUS" OR "INVIDIOUSLY DISCRIMINATORY MOTIVATION" ACCOMPANIED THE
CONSPIRATORS' ACTIONS.  GRIFFIN V. BRECKENRIDGE, SUPRA, AT 102.  IN
REJECTING THE ARGUMENT THAT SEC. 1985(3) WAS SUBJECT TO AN IMPLIED
STATE ACTION LIMITATION, WE INDICATED THAT RACIALLY MOTIVATED
CONSPIRACIES OR ACTIVITIES WOULD BE ACTIONABLE UNDER SEC. 1983 IF DONE
UNDER COLOR OF LAW.  ID., AT 98-99.  OFFICIAL CONDUCT IS NO MORE IMMUNE
TO CHARACTERIZATION BASED ON ITS MOTIVATION THAN IS PRIVATE CONDUCT,
AND WE HAVE SO HELD MANY TIMES.  THE POLICE ARE VULNERABLE UNDER SEC.
1983 IF THEY SUBJECT A PERSON "TO FALSE ARREST FOR VAGRANCY FOR THE
PURPOSE OF HARASSING AND PUNISHING (HIM) FOR ATTEMPTING TO EAT WITH
BLACK PEOPLE," ADICKES, SUPRA, AT 172, OR IF THEY "INTENTIONALLY
TOLERATE VIOLENCE OR THREATS OF VIOLENCE DIRECTED TOWARD THOSE WHO
VIOLATED THE PRACTICE OF SEGREGATING THE RACES AT RESTAURANTS."  IBID. 

IN ANOTHER DECISION LAST WEEK, WE REVERSED A THREE-JUDGE COURT
RULING IN A SUIT UNDER SEC. 1983 THAT THE MULTI-MEMBER APPORTIONMENT
PLAN THERE INVOLVED OPERATED TO MINIMIZE OR DILUTE THE VOTING STRENGTH
OF NEGROES IN AN IDENTIFIABLE GHETTO AREA.  HOWEVER, IN AN OPINION
JOINED BY FOUR MEMBERS OF THE MAJORITY IN THE INSTANT CASE, WE
CAUTIONED THAT: 

"(THE COURTS HAVE BEEN VIGILANT IN SCRUTINIZING SCHEMES ALLEGEDLY
CONCEIVED OR OPERATED AS PURPOSEFUL DEVICES TO FURTHER RACIAL
DISCRIMINATION . . . . BUT THERE IS NO SUGGESTION HERE THAT MARION
COUNTY'S MULTI-MEMBER DISTRICT, OR SIMILAR DISTRICTS THROUGHOUT THE
STATE, WERE CONCEIVED OR OPERATED AS PURPOSEFUL DEVICES TO FURTHER
RACIAL OR ECONOMIC DISCRIMINATION."  WHITCOMB V. CHAVIS, ANTE, P. 124,
AT 149 (EMPHASIS ADDED). 

FURTHER, MOTIVATION ANALYSIS HAS ASSUMED GREAT IMPORTANCE IN SUITS
UNDER 42 U.S.C. 1983 AS A RESULT OF THIS COURT'S OPINIONS IN YOUNGER V.
HARRIS, 401 U.S. 37 (1971), AND ITS COMPANION CASES.  THERE THE COURT
HELD THAT EVEN THOUGH A STATE CRIMINAL PROSECUTION WAS PENDING, FEDERAL
RELIEF WOULD BE APPROPRIATE ON ALLEGATIONS IN A COMPLAINT TO THE EFFECT
THAT STATE OFFICIALS WERE UTILIZING STATE CRIMINAL STATUTES IN BAD
FAITH, WITH NO HOPE OF OBTAINING VALID CONVICTIONS UNDER THEM, IN AN
EFFORT TO HARASS INDIVIDUALS IN THE EXERCISE OF THEIR CONSTITUTIONAL
RIGHTS.  OBVIOUSLY, IN ORDER TO DETERMINE ITS JURISDICTION IN EACH
CASE, A FEDERAL COURT MUST EXAMINE AND MAKE A DETERMINATION OF THE SAME
KIND OF OFFICIAL MOTIVATION WHICH THE COURT TODAY HOLDS UNREVIEWABLE. 

IN THUS PURSUING REMEDIES UNDER THE FEDERAL CIVIL RIGHTS LAWS, AS
PETITIONERS ARE DOING UNDER SECS. 1981 AND 1983 HERE, NEGRO PLAINTIFFS
SHOULD HAVE EVERY RIGHT TO PROVE THAT THE ACTION OF THE CITY OFFICIALS
WAS MOTIVATED BY NOTHING BUT RACIAL CONSIDERATIONS.  IN EXAMINING THEIR
CONTENTIONS, IT WILL BE HELPFUL TO RE-CREATE THE CONTEXT IN WHICH THIS
CASE ARISES. 

        I 

IN MAY 1954, THIS COURT HELD THAT "(SEPARATE EDUCATIONAL FACILITIES
ARE INHERENTLY UNEQUAL."  BROWN V. BOARD OF EDUCATION, 347 U.S. 483,
495.  IN A SERIES OF OPINIONS FOLLOWING CLOSELY IN TIME, THE COURT
EMPHASIZED THE UNIVERSALITY AND PERMANENCE OF THE PRINCIPLE THAT
SEGREGATED PUBLIC FACILITIES OF ANY KIND WERE NO LONGER PERMISSIBLE
UNDER THE FOURTEENTH AMENDMENT.  MUIR V. LOUISVILLE PARK THEATRICAL
ASSN., 347 U.S. 971 (1954), DECIDED ONE WEEK AFTER BROWN, SAW THE COURT
REVIEW A DECISION OF THE COURT OF APPEALS FOR THE SIXTH CIRCUIT WHICH
HAD AFFIRMED A DISTRICT COURT ORDER HOLDING THAT NEGRO PLAINTIFFS WERE
ENTITLED TO THE USE OF PUBLIC GOLF COURSES AND A PUBLIC FISHING LAKE IN
IROQUOIS PARK IN LOUISVILLE, BUT THAT THE PRIVATELY OWNED THEATRICAL
ASSOCIATION THAT LEASED A CITY-OWNED AMPHITHEATER IN THE SAME PARK WAS
NOT GUILTY OF DISCRIMINATION PROSCRIBED BY THE FOURTEENTH AMENDMENT IN
REFUSING TO ADMIT NEGROES TO ITS OPERATIC PERFORMANCES.  THE COURT
VACATED THE JUDGMENT AND REMANDED "FOR CONSIDERATION IN THE LIGHT OF
THE SEGREGATION CASES DECIDED MAY 17, 1954 . . . AND CONDITIONS THAT
NOW PREVAIL."  IBID.  /1/ 

AT THE BEGINNING OF THE OCTOBER 1955 TERM, THE COURT RESOLVED ANY
POSSIBLE AMBIGUITY ABOUT THE ACTION TAKEN IN MUIR.  IN A PAIR OF
SUMMARY DECISIONS, THE COURT MADE IT CLEAR THAT STATE-SANCTIONED
SEGREGATION IN THE OPERATION OF PUBLIC RECREATIONAL FACILITIES WAS
PROHIBITED.  MAYOR AND CITY COUNCIL OF BALTIMORE V. DAWSON, 350 U.S.
877 (1955), WAS A SUMMARY AFFIRMANCE OF A DECISION BY THE COURT OF
APPEALS FOR THE FOURTH CIRCUIT THAT OFFICIALS OF THE STATE AND CITY
COULD NOT ENFORCE A POLICY OF RACIAL SEGREGATION AT PUBLIC BEACHES AND
BATHHOUSES.  ON THE SAME DAY, THE COURT CONFIRMED THAT USE OF A PUBLIC
GOLF COURSE COULD NOT BE DENIED TO ANY PERSON ON ACCOUNT OF HIS RACE. 
HOLMES V. CITY OF ATLANTA, 350 U.S. 879 (1955). 

THE LOWER FEDERAL COURTS PLAYED A VERY IMPORTANT ROLE IN THIS
ONGOING PROCESS.  FOR EXAMPLE, IN JUNE 1956, A THREE-JUDGE DISTRICT
COURT IN ALABAMA, RELYING ON BROWN, DAWSON, AND HOLMES, HELD THAT:

"(THE STATUTES AND ORDINANCES REQUIRING SEGREGATION OF THE WHITE AND
COLORED RACES ON THE MOTOR BUSSES OF A COMMON CARRIER OF PASSENGERS IN
THE CITY OF MONTGOMERY AND ITS POLICE JURISDICTION VIOLATE THE DUE
PROCESS AND EQUAL PROTECTION OF THE LAW CLAUSES OF THE FOURTEENTH
AMENDMENT . . . ."  BROWDER V. GAYLE, 142 F.SUPP.  707, 717 (MD ALA.).
AGAIN THIS COURT AFFIRMED SUMMARILY, CITING BROWN, DAWSON, AND HOLMES. 
352 U.S. 903 (1956).  SOME PUBLIC OFFICIALS REMAINED UNCONVINCED.  IN
EARLY 1958, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT SUMMARILY
REJECTED AS WITHOUT MERIT AN APPEAL BY THE NEW ORLEANS CITY PARK
IMPROVEMENT ASSOCIATION FROM A SUMMARY JUDGMENT INCLUDING A PERMANENT
INJUNCTION PROHIBITING THE ASSOCIATION, A MUNICIPAL CORPORATION, FROM
DENYING NEGROES THE USE OF THE FACILITIES OF THE NEW ORLEANS CITY
PARK.  NEW ORLEANS CITY PARK IMPROVEMENT ASSN. V. DETIEGE, 252 F.2D 122
(CA5 1958).  WHEN THE ASSOCIATION TOOK A FURTHER APPEAL TO THIS COURT,
THE JUDGMENT WAS AFFIRMED IN A ONE-LINE OPINION.  NEW ORLEANS CITY PARK
IMPROVEMENT ASSN. V. DETIEGE, 358 U.S. 54 (1958).  OTHER DECISIONS IN
THIS COURT AND THE LOWER FEDERAL COURTS DEMONSTRATED THE PERVASIVE IDEA
THAT OFFICIALLY SEGREGATED PUBLIC FACILITIES WERE NOT EQUAL.  /2/ 

THROUGHOUT THE SAME PERIOD, THIS COURT AND OTHER COURTS REJECTED
ATTEMPTS BY VARIOUS PUBLIC BODIES TO EVADE THEIR CLEAR DUTY UNDER BROWN
AND ITS PROGENY BY EMPLOYING DELAYING TACTICS OR OTHER ARTIFICES SHORT
OF OPEN DEFIANCE.  COOPER V. AARON, 358 U.S. 1 (1958); BURTON V.
WILMINGTON PARKING AUTHORITY, 365 U.S. 715 (1961); WATSON V. CITY OF
MEMPHIS, 373 U.S. 526 (1963); GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE
EDWARD COUNTY, 377 U.S. 218 (1964).  /3/  MEANWHILE, COUNTLESS CLASS
SUITS SEEKING DESEGREGATION ORDERS WERE SUCCESSFULLY PROSECUTED BY
NEGRO PLAINTIFFS IN THE LOWER FEDERAL COURTS.  MANY PUBLIC FACILITIES
WERE OPENED TO ALL CITIZENS, REGARDLESS OF RACE, WITHOUT DIRECT
INTERVENTION BY THIS COURT.  SEVERAL OF THESE LOCAL SUITS ARE RELEVANT
TO THE PRESENT CASE. 

THE CITY OF JACKSON WAS ONE OF MANY PLACES WHERE THE CONSISTENT LINE
OF DECISIONS FOLLOWING FROM BROWN HAD LITTLE OR NO EFFECT.  /4/  PUBLIC
RECREATIONAL FACILITIES WERE NOT DESEGREGATED ALTHOUGH IT HAD BECOME
CLEAR THAT SUCH ACTION WAS REQUIRED BY THE CONSTITUTION.  AS
RESPONDENTS STATE IN THEIR BRIEF IN THIS CASE: 

  "IN 1963 THE CITY OF JACKSON WAS OPERATING EQUAL BUT SEPARATE

  RECREATIONAL FACILITIES SUCH AS PARKS AND GOLF LINKS, INCLUDING

  SWIMMING POOLS.  A SUIT WAS BROUGHT IN THE SOUTHERN DISTRICT OF

  MISSISSIPPI TO ENJOIN THE SEGREGATED OPERATION OF THESE

  FACILITIES.  THE CITY OF JACKSON TOOK THE POSITION IN THAT

  LITIGATION THAT THE SEGREGATION OF RECREATIONAL FACILITIES, IF

  SEPARATE BUT EQUAL RECREATIONAL FACILITIES WERE PROVIDED AND IF

  CITIZENS VOLUNTARILY USED SEGREGATED FACILITIES, WAS

  CONSTITUTIONAL."  RESPONDENTS' BRIEF 2. 

THIS WAS NEARLY NINE YEARS AFTER BROWN AND MORE THAN SEVEN YEARS AFTER
DAWSON AND HOLMES. 

THE SUIT RESPONDENTS REFER TO WAS INSTITUTED IN 1962 AS A CLASS
ACTION BY THREE NEGRO PLAINTIFFS WHO ALLEGED THAT SOME CITY FACILITIES-
PARKS, LIBRARIES, ZOO, GOLF COURSES, PLAYGROUNDS, AUDITORIUMS, AND
OTHER RECREATIONAL COMPLEXES-- WERE CLOSED TO THEM BECAUSE OF THEIR
RACE.  THE DEFENDANTS WERE JACKSON CITY OFFICIALS, INCLUDING MAYOR
ALLEN C. THOMPSON AND DIRECTOR OF PARKS AND RECREATION GEORGE KURTS,
BOTH RESPONDENTS IN THE PRESENT CASE.  THE PLAINTIFFS IN THAT SUIT WERE
SUCCESSFUL.  THE DISTRICT COURT'S OPINION BEGAN BY STATING THAT JACKSON
WAS A CITY "NOTED FOR ITS LOW CRIME RATE AND LACK OF RACIAL FRICTION
EXCEPT FOR THE PERIOD IN 1961 WHEN THE SELF-STYLED FREEDOM RIDERS MADE
THEIR VISITS."  CLARK V. THOMPSON, 206 F.SUPP.  539, 541 (SD MISS. 
1962).  IT WAS ALSO STATED THAT JACKSON HAD RACIALLY EXCLUSIVE
NEIGHBORHOODS, THAT AS THIS RESIDENTIAL PATTERN HAD DEVELOPED THE CITY
HAD "DUPLICATED" ITS RECREATIONAL FACILITIES IN WHITE AND NEGRO AREAS,
AND THAT MEMBERS OF EACH RACE "HAVE CUSTOMARILY USED THE RECREATIONAL
FACILITIES LOCATED IN CLOSE PROXIMITY TO THEIR HOMES."  IBID.  THE
FINAL FINDING OF FACT WAS THAT THE "DEFENDANTS ARE NOT ENFORCING
SEPARATION OF THE RACES IN PUBLIC RECREATIONAL FACILITIES IN THE CITY
OF JACKSON.  THE DEFENDANTS DO ENCOURAGE VOLUNTARY SEPARATION OF THE
RACES."  IBID.  /5/     AMONG THE DISTRICT COURT'S CONCLUSIONS OF LAW
WERE THE FOLLOWING:  (1) THAT THE SUIT WAS NOT A PROPER CLASS ACTION
SINCE THE NEGRO PLAINTIFFS HAD FAILED TO SHOW THAT THEIR INTERESTS WERE
NOT ANTAGONISTIC TO OR INCOMPATIBLE WITH THOSE OF THE PURPORTED CLASS;
/6/  (2) THAT THE THREE ORIGINAL PLAINTIFFS WERE ENTITLED TO AN
ADJUDICATION BY DECLARATORY JUDGMENT OF "THEIR PERSONAL CLAIMS OF RIGHT
TO UNSEGREGATED USE OF PUBLIC RECREATIONAL FACILITIES," 206 F.SUPP.,AT
542; (3) THAT INJUNCTIVE RELIEF WAS INAPPROPRIATE AS A MATTER OF LAW;
/7/  AND (4) THAT 

"THE INDIVIDUAL DEFENDANTS IN THIS CASE ARE ALL OUTSTANDING,

  HIGH CLASS GENTLEMEN AND IN MY OPINION WILL NOT VIOLATE THE TERMS

  OF THE DECLARATORY JUDGMENT ISSUED HEREIN.  THEY KNOW NOW WHAT

  THE LAW IS AND WHAT THEIR OBLIGATIONS ARE, AND I AM DEFINITELY OF

  THE OPINION THAT THEY WILL CONFORM TO THE RULING OF THIS COURT

  WITHOUT BEING COERCED SO TO DO BY AN INJUNCTION.  THE CITY OF

  JACKSON, A MUNICIPALITY, OF COURSE IS OPERATED BY SOME OF THESE

  HIGH CLASS CITIZENS.  I AM FURTHER OF THE OPINION THAT DURING

  THIS PERIOD OF TURMOIL THE TIME NOW HAS ARRIVED WHEN THE

  JUDICIARY SHOULD NOT ISSUE INJUNCTIONS PERFUNCTORILY, BUT SHOULD

  PLACE TRUST IN MEN OF HIGH CHARACTER THAT THEY WILL OBEY THE

  MANDATE OF THE COURT WITHOUT AN INJUNCTION HANGING OVER THEIR

  HEADS."  206 F.SUPP.,AT 543. 

AS THE CITY HAS STRESSED IN ITS BRIEF HERE, IT DID NOT APPEAL FROM
THIS JUDGMENT, WHICH WAS ENTERED IN MAY 1962.  THE NEGRO PLAINTIFFS,
HOWEVER, DID APPEAL, CLAIMING THAT THE RELIEF AFFORDED WAS INADEQUATE. 
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED PER CURIAM, 313
F.2D 637 (CA5 1963).  ON DECEMBER 16, 1963, THIS COURT DENIED
CERTIORARI, 375 U.S. 951. 

IT MUST BE NOTED HERE THAT NONE OF JACKSON'S PUBLIC RECREATIONAL
FACILITIES WAS DESEGREGATED UNTIL AFTER THE APPELLATE PROCEEDINGS IN
CLARK V. THOMPSON WERE FULLY CONCLUDED.  /8/  THIS WAS TRUE DESPITE THE
FACT THAT UNDER THIS COURT'S PRIOR DECISIONS THE ONLY POSSIBLE RESULT
OF SUCH REVIEW WOULD HAVE BEEN A BROADENING OF THE RELIEF GRANTED BY
THE DISTRICT JUDGE.  MOREOVER, FROM THE TIME OF THE TRIAL COURT'S
DECISION IN CLARK V. THOMPSON, THE MAYOR OF JACKSON MADE PUBLIC
STATEMENTS, OF RECORD IN THIS CASE, INDICATING HIS DEDICATION TO
MAINTAINING SEGREGATED FACILITIES.  ON MAY 24, 1962, NINE DAYS AFTER
THE DISTRICT COURT'S DECISION IN CLARK V. THOMPSON, THE JACKSON DAILY
NEWS QUOTED MAYOR THOMPSON AS SAYING: 

"'WE WILL DO ALL RIGHT THIS YEAR AT THE SWIMMING POOLS . . . BUT IF
THESE AGITATORS KEEP UP THEIR PRESSURE, WE WOULD HAVE FIVE COLORED
SWIMMING POOLS BECAUSE WE ARE NOT GOING TO HAVE ANY INTERMINGLING.'  .
. . HE SAID THE CITY NOW HAS LEGISLATIVE AUTHORITY TO SELL THE POOLS OR
CLOSE THEM DOWN IF THEY CAN'T BE SOLD."  APP. 15. 

A YEAR PASSED WHILE THE APPEALS IN CLARK V. THOMPSON WERE PENDING,
BUT THE CITY'S OFFICIAL ATTITUDE DID NOT CHANGE.  ON MAY 24, 1963, THE
JACKSON DAILY NEWS REPORTED THAT "GOVERNOR ROSS BARNETT TODAY COMMENDED
MAYOR THOMPSON FOR HIS PLEDGE TO MAINTAIN JACKSON'S PRESENT SEPARATION
OF THE RACES."  APP. 15.  ON THE NEXT DAY, THE SAME NEWSPAPER CARRIED A
FRONT PAGE ARTICLE STATING THAT "THOMPSON SAID NEITHER AGITATORS NOR
PORESIDENT KENNEDY WILL CHANGE THE DETERMINATION OF JACKSON TO RETAIN
SEGREGATION."  APP. 16. 

DURING MAY AND JUNE 1963, THE NEGRO CITIZENS OF JACKSON ORGANIZED TO
PRESENT THEIR GRIEVANCES TO CITY OFFICIALS.  ON MAY 27, A COMMITTEE
REPRESENTING THE NEGRO COMMUNITY MET WITH THE MAYOR AND TWO CITY
COMMISSIONERS.  AMONG THE GRIEVANCES PRESENTED WAS A SPECIFIC DEMAND
THAT THE CITY DESEGREGATE PUBLIC FACILITIES, INCLUDING THE CITY
OPERATED PARKS AND SWIMMING POOLS. 

ON THE DAY FOLLOWING THIS MEETING, THE JACKSON DAILY NEWS QUOTED THE
MAYOR AS SAYING: 

     "'IN SPITE OF THE CURRENT AGITATION, THE COMMISSIONERS AND I

  SHALL CONTINUE TO PLAN AND SEEK MONEY FOR ADDITIONAL PARKS FOR

  OUR NEGRO CITIZENS.  TOMORROW WE ARE DISCUSSING WITH LOCAL NEGRO

  CITIZENS PLANS TO IMMEDIATELY BEGIN A NEW CLUBHOUSE AND LIBRARY

  IN THE GROVE PARK AREA, AND OTHER PARK AND RECREATIONAL

  FACILITIES FOR NEGROES THROUGHOUT THE CITY.  WE CANNOT PROCEED,

  HOWEVER, ON THE PROPOSED $100,000 EXPENDITURE FOR A NEGRO

  SWIMMING POOL IN THE GROVE PARK AREA AS LONG AS THERE IS THE

  THREAT OF RACIAL DISTURBANCES.'"  APP. 15. 

ON MAY 30, 1963, THE SAME PAPER REPORTED THAT THE MAYOR HAD ANNOUNCED
THAT "(PUBLIC SWIMMING POOLS WOULD NOT BE OPENED ON SCHEDULE THIS YEAR
DUE TO SOME MINOR WATER DIFFICULTY."  APP. 5. 

THE CITY AT THIS TIME OPERATED FIVE SWIMMING FACILITIES ON A
SEGREGATED BASIS:  THE LIVINGSTON LAKE SWIMMING FACILITY, IN REALITY A
LAKE WITH BEACH FACILITIES, AT LIVINGSTON PARK; A SWIMMING POOL IN
BATTLEFIELD PARK; A SWIMMING POOL AND A WADING POOL IN RIVERSIDE PARK;
A POOL THAT THE CITY LEASED FROM THE YMCA IN LEAVELL WOODS PARK; A
SWIMMING POOL AND A WADING POOL FOR NEGROES IN COLLEGE PARK.  /9/  IN
LITERATURE DESCRIBING ITS DEPARTMENT OF PARKS AND RECREATION, THE CITY
STRESSED THAT "(OUR $.10 AND $.20 CHARGE FOR SWIMMING . . . (IS) THE
LOWEST TO BE FOUND ANYWHERE IN THE COUNTRY.  THE FEES ARE KEPT LOW IN
ORDER TO SERVE AS MANY PEOPLE AS POSSIBLE."  IN ONE OF TWO AFFIDAVITS
THAT HE FILED BELOW, PARKS DIRECTOR KURTS STATED THAT FOR THE YEARS
1960, 1961, AND 1962, THE AVERAGE ANNUAL EXPENSE TO THE CITY OF
OPERATING EACH OF THE POOLS IN BATTLEFIELD, RIVERSIDE, AND COLLEGE PARK
WAS $10,000.  THE AVERAGE ANNUAL REVENUE FROM THE POOLS IN BATTLEFIELD
AND RIVERSIDE PARKS WAS $8,000 APIECE; THE AVERAGE ANNUAL REVENUE FROM
THE NEGRO POOL IN THE COLLEGE PARK WAS $2,300.  THUS, FOR THESE THREE
FACILITIES, THE CITY WAS ABSORBING AN ANNUAL LOSS OF APPROXIMATELY
$11,700, AND WAS DOING SO "IN ORDER TO SERVE AS MANY PEOPLE AS
POSSIBLE." 

FROM THE TIME OF THE ANNOUNCEMENT OF "MINOR WATER DIFFICULTY" AT THE
END OF MAY 1963, NONE OF THESE SWIMMING FACILITIES HAS OPERATED UNDER
PUBLIC AEGIS.  THE CITY CANCELLED ITS LEASE ON THE LEAVEL WOODS POOL,
AND IT HAS SINCE BEEN OPERATED ON A "WHITES ONLY" BASIS BY ITS OWNER,
THE YMCA, APPARENTLY WITHOUT CITY INVOLVEMENT.  /10/  AT ORAL ARGUMENT,
COUNSEL FOR THE CITY INFORMED US THAT THE POOL THAT WAS LOCATED IN THE
NEGRO NEIGHBORHOOD-- THE COLLEGE PARK POOL-- "WAS SOLD BY THE CITY TO
THE Y. THE YMCA OPENED IT UP AND THE BLACK PEOPLE BOYCOTTED SO IT
WASN'T BEING USED, THEN THE YMCA SOLD IT TO JACKSON STATE COLLEGE,
JACKSON STATE NOW OWNS IT AND OPERATES IT . . . FOR THE STUDENTS AT
JACKSON STATE AND THEIR GUESTS . . . ."  TR. OF ORAL ARG. 31. 
ACCORDING TO THE RECORD BELOW, THE BATTLEFIELD PARK AND RIVERSIDE PARK
POOLS, BOTH IN WHITE NEIGHBORHOODS, HAVE REMAINED CLOSED BUT HAVE BEEN
PROPERLY MAINTAINED AND PREVENTED FROM FALLING INTO DISREPAIR BY THE
CITY, ALTHOUGH THEY PRODUCE NO OFFSETTING REVENUE.  THE LIVINGSTON LAKE
FACILITY HAS APPARENTLY REMAINED IN ITS NATURAL STATE.  /11/ 

IN AUGUST 1965, PETITIONERS BROUGHT THE PRESENT CLASS ACTION IN THE
SOUTHERN DISTRICT OF MISSISSIPPI.  THEY CHALLENGED THE CLOSING OF THE
POOLS AND RACIAL SEGREGATION IN THE CITY JAIL, SEEKING BOTH DECLARATORY
AND INJUNCTIVE RELIEF.  THE CASE WAS TRIED ON AFFIDAVITS AND
STIPULATIONS AND SUBMITTED TO THE DISTRICT JUDGE.  IN ADDITION TO THE
EVIDENCE SUMMARIZED ABOVE, MAYOR THOMPSON FILED AN AFFIDAVIT WHICH
STATED: 

     "REALIZING THAT THE PERSONAL SAFETY OF ALL OF THE CITIZENS OF

  THE CITY AND THE MAINTENANCE OF LAW AND ORDER WOULD PROHIBIT THE

OPERATION OF SWIMMING POOLS ON AN INTEGRATED GASIS, AND REALIZING

  THAT THE SAID POOLS COULD NOT BE OPERATED ECONOMICALLY ON AN

  INTEGRATED BASIS, THE CITY MADE THE DECISION SUBSEQUENT TO THE

  CLARK CASE TO CLOSE ALL POOLS OWNED AND OPERATED BY THE CITY TO

  MEMBERS OF BOTH RACES."  APP. 21.  /12/

PARKS DIRECTOR KURTS FILED A SIMILAR AFFIDAVIT, AVERRING: 

     "THAT AFTER THE DECISION OF THE COURT IN THE CASE OF CLARK V.

  THOMPSON, IT BECAME APPARENT THAT THE SWIMMING POOLS OWNED AND

  OPERATED BY THE CITY OF JACKSON COULD NOT BE OPERATED PEACEFULLY,

  SAFELY, OR ECONOMICALLY ON AN INTEGRATED BASIS, AND THE CITY

  DECIDED THAT THE BEST INTEREST OF ALL CITIZENS REQUIRED THE

  CLOSING OF ALL PUBLIC SWIMMING POOLS OWNED AND OPERATED BY THE

  CITY . . . ."  APP. 18.  /13/ 

BASED ON THESE AFFIDAVITS, THE DISTRICT JUDGE FOUND AS A FACT THAT
THE DECISION TO CLOSE THE POOLS WAS MADE AFTER CLARK V. THOMPSON AND
THAT THE POOLS COULD NOT BE OPERATED SAFELY OR ECONOMICALLY ON AN
INTEGRATED BASIS.  ACCORDINGLY, HE HELD THAT PETITIONERS WERE NOT
ENTITLED TO ANY RELIEF AND DISMISSED THE COMPLAINT.  ON APPEAL, A PANEL
OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  PALMER V.
THOMPSON, 391 F.2D 324 (1967).  ON REHEARING EN BANC, THE COURT OF
APPEALS, BY A SEVEN-TO-SIX VOTE, AGAIN AFFIRMED DISMISSAL OF THE
COMPLAINT.  419 F.2D 1222 (1969).  BOTH COURTS BELOW REJECTED
PETITIONERS' ARGUMENT THAT BECAUSE THE POOLS WERE CLOSED TO AVOID COURT
ORDERS THAT WOULD REQUIRE THEIR DESEGREGATION, THE CITY'S ACTION WAS A
DENIAL OF EQUAL PROTECTION.  WE GRANTED CERTIORARI TO DECIDE THAT
ISSUE, 397 U.S. 1035 (1970), AND FOR THE REASONS THAT FOLLOW I WOULD
REVERSE. 

        II 

THERE IS NO DISPUTE THAT THE CLOSING OF THE POOLS CONSTITUTED STATE
ACTION.  SIMILARLY, THERE CAN BE NO DISAGREEMENT THAT THE DESEGREGATION
RULING IN CLARK V. THOMPSON WAS THE EVENT THAT PRECIPITATED THE CITY'S
DECISION TO CEASE FURNISHING PUBLIC SWIMMING FACILITIES TO ITS
CITIZENS.  /14/  ALTHOUGH THE SECONDARY EVIDENCE OF WHAT THE CITY
OFFICIALS THOUGHT AND BELIEVED ABOUT THE WISDOM OF DESEGREGATION IS
RELEVANT, IT IS NOT NECESSARY TO RELY ON IT TO ESTABLISH THE CAUSAL
LINK BETWEEN CLARK V. THOMPSON AND THE CLOSINGS.  THE OFFICIALS' SWORN
AFFIDAVITS, ACCEPTED BY THE COURTS BELOW, STATED THAT LOSS OF REVENUE
AND DANGER TO THE CITIZENS WOULD OBVIOUSLY RESULT FROM OPERATING THE
POOLS ON AN INTEGRATED BASIS.  DESEGREGATION, AND DESEGREGATION ALONE,
WAS THE CATALYST THAT WOULD PRODUCE THESE UNDESIRABLE CONSEQUENCES. 
IMPLICIT IN THIS OFFICIAL JUDGMENT WERE ASSUMPTIONS THAT THE CITIZENS
OF JACKSON WERE OF SUCH A MIND THAT THEY WOULD NO LONGER PAY THE 10- OR
20-CENT FEE IMPOSED BY THE CITY IF THEIR SWIMMING AND WADING HAD TO BE
DONE WITH THEIR NEIGHBORS OF ANOTHER RACE, THAT SOME CITIZENS WOULD
DIRECT VIOLENCE AGAINST THEIR NEIGHBORS FOR USING POOLS PREVIOUSLY
CLOSED TO THEM, AND THAT THE ANTICIPATED VIOLENCE WOULD NOT BE
CONTROLLABLE BY THE AUTHORITIES.  STATED MORE SIMPLY, ALTHOUGH THE CITY
OFFICIALS KNEW WHAT THE CONSTITUTION REQUIRED AFTER CLARK V. THOMPSON
BECAME FINAL, THEIR JUDGMENT WAS THAT COMPLIANCE WITH THAT MANDATE, AT
LEAST WITH RESPECT TO SWIMMING POOLS, WOULD BE INTOLERABLE TO JACKSON'S
CITIZENS. 

PREDICTIONS SUCH AS THIS HAVE BEEN PRESENTED HERE BEFORE.  ONE YEAR
AFTER THE DISTRICT COURT'S OPINION IN CLARK V. THOMPSON, THIS COURT
REVIEWED A CASE IN WHICH MUNICIPAL OFFICIALS HAD MADE THE SAME
ASSUMPTION AND HAD ACTED UPON IT.  IN MEMPHIS, TENNESSEE, BROWN AND THE
CASES DISCUSSED ABOVE HAD LITTLE EFFECT UNTIL MAY 1960, WHEN NEGRO
RESIDENTS SUED FOR DECLARATORY AND INJUNCTIVE RELIEF DIRECTING
IMMEDIATE DESEGREGATION OF THE MUNICIPAL PARKS AND OTHER CITY-OWNED AND
CITY-OPERATED RECREATIONAL FACILITIES.  THE CITY AGREED THAT THE
FOURTEENTH AMENDMENT REQUIRED ALL FACILITIES TO BE OPENED TO CITIZENS
REGARDLESS OF RACE AND THAT THE MAJORITY OF CITY-RUN FACILITIES
REMAINED SEGREGATED AT THE TIME OF SUIT, SIX YEARS AFTER BROWN.  IT WAS
NEVERTHELESS ASSERTED THAT DESEGREGATION WAS UNDER WAY AND THAT FURTHER
DELAY IN ACHIEVING FULL DESEGREGATION WAS THE WISE AND PROPER COURSE. 
BOTH OF THE LOWER COURTS DENIED PLAINTIFFS RELIEF, THE NET RESULT BEING
AN ORDER DIRECTING THE CITY TO SUBMIT WITHIN SIX MONTHS A PLAN
PROVIDING FOR GRADUAL DESEGREGATION OF ALL THE CITY'S RECREATIONAL
FACILITIES. 

THIS COURT UNANIMOUSLY REJECTED FURTHER DELAY IN INTEGRATING THESE
FACILITIES.  WATSON V. CITY OF MEMPHIS, 373 U.S. 526 (1963).  IT DID SO
ALTHOUGH THE CITY ASSERTED ITS GOOD-FAITH ATTEMPT TO COMPLY WITH THE
CONSTITUTION AND ITS HONEST BELIEF THAT GRADUAL DESEGREGATION, FACILITY
BY FACILITY, WAS NECESSARY TO PREVENT INTERRACIAL STRIFE.  THE COURT'S
"COMPELLING ANSWER TO THIS CONTENTION (WAS) THAT CONSTITUTIONAL RIGHTS
MAY NOT BE DENIED SIMPLY BECAUSE OF HOSTILITY TO THEIR ASSERTION OR
EXERCISE."  ID., AT 535.  SEE ALSO BUCHANAN V. WARLEY, 245 U.S. 60, 81
(1917); BROWN V. BOARD OF EDUCATION, 349 U.S. 294, 300 (1955); COOPER
V. AARON, 358 U.S.,AT 16; WRIGHT V. GEORGIA, 373 U.S. 284, 291-293
(1963).  THE RECORD IN THE CASE WAS REVIEWED IN SOME DETAIL.  I QUOTE
AT LENGTH BECAUSE OF THE PERTINENCE OF THE COURT'S OBSERVATIONS. 

     "BEYOND THIS, HOWEVER, NEITHER THE ASSERTED FEARS OF VIOLENCE

  AND TUMULT NOR THE ASSERTED INABILITY TO PRESERVE THE PEACE WAS

  DEMONSTRATED AT TRIAL TO BE ANYTHING MORE THAN PERSONAL

  SPECULATIONS OR VAGUE DISQUIETUDES OF CITY OFFICIALS.  THERE IS

  NO INDICATION THAT THERE HAD BEEN ANY VIOLENCE OR MEANINGFUL

  DISTURBANCES WHEN OTHER RECREATIONAL FACILITIES HAD BEEN

  DESEGREGATED.  IN FACT, THE ONLY EVIDENCE IN THE RECORD WAS THAT

  SUCH PRIOR TRANSITIONS HAD BEEN PEACEFUL.  THE CHAIRMAN OF THE

  MEMPHIS PARK COMMISSION INDICATED THAT THE CITY HAD 'BEEN

  SINGULARLY BLESSED BY THE ABSENCE OF TURMOIL UP TO THIS TIME ON

 THIS RACE QUESTION'; NOTWITHSTANDING THE PRIOR DESEGREGATION OF

  NUMEROUS RECREATIONAL FACILITIES, THE SAME WITNESS COULD POINT AS

  EVIDENCE OF THE UNREST OR TURMOIL WHICH WOULD ASSERTEDLY OCCUR

  UPON COMPLETE DESEGREGATION OF SUCH FACILITIES ONLY TO A NUMBER

  OF ANONYMOUS LETTERS AND PHONE CALLS WHICH HE HAD RECEIVED.  THE

  MEMPHIS CHIEF OF POLICE MENTIONED WITHOUT FURTHER DESCRIPTION

  SOME 'TROUBLES' AT THE TIME BUS SERVICE WAS DESEGREGATED AND

  REFERRED TO THREATENED VIOLENCE IN CONNECTION WITH A 'SIT-IN'

DEMONSTRATION AT A LOCAL STORE, BUT, BEYOND MAKING GENERAL

 PREDICTIONS, GAVE NO CONCRETE INDICATION OF ANY INABILITY OF

  AUTHORITIES TO MAINTAIN THE PEACE.  THE ONLY VIOLENCE REFERRED TO

  AT ANY PART OR RECREATIONAL FACILITY OCCURRED IN SEGREGATED PARKS

  AND WAS NOT THE PRODUCT OF ATTEMPTS AT DESEGREGATION.  MOREOVER,

  THERE WAS NO FACTUAL EVIDENCE TO SUPPORT THE BARE TESTIMONIAL

  SPECULATIONS THAT AUTHORITIES WOULD BE UNABLE TO COPE

  SUCCESSFULLY WITH ANY PROBLEMS WHICH IN FACT MIGHT ARISE OR TO

  MEET THE NEED FOR ADDITIONAL PROTECTION SHOULD THE OCCASION

  DEMAND. 

     "THE EXISTING AND COMMENDABLE GOODWILL BETWEEN THE RACES IN

  MEMPHIS, TO WHICH BOTH THE DISTRICT COURT AND SOME OF THE

  WITNESSES AT TRIAL MADE EXPRESS AND EMPHATIC REFERENCE AS IN SOME

  INEXPLICABLE FASHION SUPPORTING THE NEED FOR FURTHER DELAY, CAN

  BEST BE PRESERVED AND EXTENDED BY THE OBSERVANCE AND PROTECTION,

  NOT THE DENIAL, OF THE BASIC CONSTITUTIONAL RIGHTS HERE

  ASSERTED.  THE BEST GUARANTEE OF CIVIL PEACE IS ADHERENCE TO, AND

  RESPECT FOR, THE LAW. 

     "THE OTHER JUSTIFICATIONS FOR DELAY URGED BY THE CITY OR
RELIED

  UPON BY THE COURTS BELOW ARE NO MORE SUBSTANTIAL, EITHER LEGALLY

  OR PRACTICALLY.  IT WAS, FOR EXAMPLE, ASSERTED THAT IMMEDIATE

  DESEGREGATION OF PLAYGROUNDS AND PARKS WOULD DEPRIVE A NUMBER OF

  CHILDREN-- BOTH NEGRO AND WHITE-- OF RECREATIONAL FACILITIES;

  THIS CONTENTION WAS APPARENTLY BASED ON THE PREMISE THAT A NUMBER

  OF SUCH FACILITIES WOULD HAVE TO BE CLOSED BECAUSE OF THE

  INADEQUACY OF THE 'PRESENT' PARK BUDGET TO PROVIDE ADDITIONAL

  'SUPERVISION' ASSUMED TO BE NECESSARY TO OPERATE UNSEGREGATED

  PLAYGROUNDS.  AS ALREADY NOTED, HOWEVER, THERE IS NO WARRANT IN

  THIS RECORD FOR ASSUMING THAT SUCH ADDED SUPERVISION WOULD, IN

  FACT, BE REQUIRED, MUCH LESS THAT POLICE AND RECREATION PERSONNEL

  WOULD BE UNAVAILABLE TO MEET SUCH NEEDS IF THEY SHOULD ARISE. 

  MORE SIGNIFICANTLY, HOWEVER, IT IS OBVIOUS THAT VINDICATION OF

  CONCEDED CONSTITUTIONAL RIGHTS CANNOT BE MADE DEPENDENT UPON ANY

  THEORY THAT IT IS LESS EXPENSIVE TO DENY THAN TO AFFORD THEM.  WE

  WILL NOT ASSUME THAT THE CITIZENS OF MEMPHIS ACCEPT THE

  QUESTIONABLE PREMISE IMPLICIT IN THIS ARGUMENT OR THAT EITHER THE

  RESOURCES OF THE CITY ARE INADEQUATE, OR ITS GOVERNMENT

  UNRESPONSIVE, TO THE NEEDS OF ALL OF ITS CITIZENS."  373 U.S.,AT

  536-538 (FOOTNOTES OMITTED). 

SO IT IS IN THIS CASE.  THE RECORD BEFORE US DOES NOT INCLUDE LIVE
TESTIMONY.  IT WAS STIPULATED BY THE PARTIES AFTER THE DISTRICT JUDGE
HAD ENTERED HIS ORDER DENYING RELIEF THAT THE "PARTIES HAD AN
OPPORTUNITY TO OFFER ANY AND ALL EVIDENCE DESIRED."  THE OFFICIAL
AFFIDAVITS FILED WERE EVEN LESS COMPELLING THAN THE EVIDENCE PRESENTED
BY CITY OFFICIALS IN WATSON.  THE CONCLUSION OF CITY OFFICIALS THAT
INTEGRATED POOLS WOULD NOT BE "ECONOMICAL" WAS NO MORE THAN "PERSONAL
SPECULATION."  THE CITY MADE NO SHOWING THAT INTEGRATED OPERATION WOULD
INCREASE THE ANNUAL LOSS OF AT LEAST $11,700-- A LOSS THAT, PRIOR TO
1963, THE CITY PURPOSELY ACCEPTED FOR THE BENEFIT OF ITS CITIZENS AS
LONG AS SEGREGATED FACILITIES COULD BE MAINTAINED.  THE PREDICTION THAT
THE POOLS COULD NOT BE OPERATED SAFELY IF THEY WERE DESEGREGATED WAS
NOTHING MORE THAN A "VAGUE DISQUIETUDE."  IN WATSON, THE RECORD
REFLECTED THAT THE PARKS COMMISSIONER HAD RECEIVED A NUMBER OF
ANONYMOUS PHONE CALLS AND LETTERS PRESUMABLY THREATENING VIOLENCE, AND
THAT THE CHIEF OF POLICE HAD TESTIFIED ABOUT TROUBLES IN CONNECTION
WITH A SIT-IN DEMONSTRATION AND DESEGREGATION OF THE CITY BUSES.  HERE,
MAYOR THOMPSON'S AFFIDAVIT, FILED IN 1965, REFERS ONLY TO A TIME IN
1961 "WHEN RACIAL TENSIONS WERE INFLAMED BY THE VISITS OF THE FREEDOM
RIDERS TO JACKSON."  BOTH THE THOMPSON AND KURTS AFFIDAVITS ASSERT THAT
ALL OTHER PUBLIC RECREATIONAL FACILITIES IN JACKSON WERE DESEGREGATED
FOLLOWING CLARK V. THOMPSON.  NEITHER AFFIDAVIT CONTAINS THE SLIGHTEST
HINT-- IN GENERAL OR SPECIFIC TERMS-- THAT THIS TRANSITION CAUSED
DISORDER OR VIOLENCE.  /15/  AS IN WATSON, THERE IS NO FACTUAL EVIDENCE
THAT CITY LAW ENFORCEMENT AUTHORITIES WOULD BE UNABLE TO COPE WITH ANY
DISTURBANCES THAT MIGHT ARISE; UNLIKE WATSON, HOWEVER, THERE IS IN THIS
RECORD NOT EVEN A "BARE TESTIMONIAL SPECULATION" THAT THIS WOULD BE THE
CASE. 

WITH ALL DUE RESPECT, I AM QUITE UNABLE TO AGREE WITH THE MAJORITY'S
ASSERTION, ANTE, AT 225, THAT THERE IS "SUBSTANTIAL EVIDENCE IN THE
RECORD" TO SUPPORT THE CONCLUSION OF THE LOWER COURTS THAT THE POOLS
COULD NOT BE OPERATED SAFELY AND ECONOMICALLY ON AN INTEGRATED BASIS. 
OFFICIALS MAY TAKE EFFECTIVE ACTION TO CONTROL VIOLENCE OR TO PREVENT
IT WHEN IT IS REASONABLY IMMINENT.  BUT THE ANTICIPATION OF VIOLENCE IN
THIS CASE RESTED ONLY ON UNSUPPORTED ASSERTION, TO WHICH THE PERMANENT
CLOSING OF SWIMMING POOLS WAS A WHOLLY UNJUSTIFIED RESPONSE.  THE CITY
SEEMS TO FEAR THAT EVEN IF SOME OR ALL OF THE POOLS SUFFERED A SHARP
DECLINE IN REVENUES FROM THE LEVELS PERTAINING BEFORE 1963 BECAUSE
NEGRO AND WHITE NEIGHBORS REFUSED TO USE INTEGRATED FACILITIES, THE
CITY COULD NEVER CLOSE THE POOLS FOR THAT REASON.  I NEED ONLY OBSERVE
THAT SUCH A CASE, IF DOCUMENTED BY OBJECTIVE RECORD EVIDENCE, WOULD
PRESENT DIFFERENT CONSIDERATIONS.  AS JUDGE WISDOM STATED BELOW, "WE DO
NOT SAY THAT A CITY MAY NEVER ABANDON A PREVIOUSLY RENDERED MUNICIPAL
SERVICE.  IF THE FACTS SHOW THAT THE CITY HAS ACTED IN GOOD FAITH FOR
ECONOMIC OR OTHER NONRACIAL REASONS, THE ACTION WOULD HAVE NO OVERTONES
OF RACIAL DEGRADATION, AND WOULD THEREFORE NOT OFFEND THE
CONSTITUTION."  419 F.2D,AT 1237 N. 16 (DISSENTING OPINION).  IT IS
ENOUGH FOR THE PRESENT CASE TO RE-EMPHASIZE THAT THE ONLY EVIDENCE IN
THIS RECORD IS THE CONCLUSIONS OF THE OFFICIALS THEMSELVES, UNSUPPORTED
BY EVEN A SCINTILLA OF ADDED PROOF. 

WATSON COUNSELS US TO REJECT THE VAGUE SPECULATION THAT THE CITIZENS
OF JACKSON WILL NOT OBEY THE LAW, AS WELL AS THE CORRELATIVE ASSUMPTION
THAT THEY WOULD PREFER NO PUBLIC POOLS TO POOLS OPEN TO ALL RESIDENTS
WHO COME IN PEACE.  THE ARGUMENT BASED ON ECONOMY IS NO MORE THAN A
CLAIM THAT A MAJOR PORTION OF THE CITY'S POPULATION WILL NOT OBSERVE
CONSTITUTIONAL NORMS.  THE ARGUMENT BASED ON POTENTIAL VIOLENCE, AS
COUNSEL FOR THE CITY INDICATED AT ORAL ARGUMENT, UNFORTUNATELY REFLECTS
THE VIEWS OF A FEW IMMODERATES WHO PURPORT TO SPEAK FOR THE WHITE
POPULATION OF THE CITY OF JACKSON.  TR. OF ORAL ARG. 36.  PERHAPS IT
COULD HAVE BEEN PRESENTED, BUT THERE IS NO EVIDENCE NOW BEFORE US THAT
THERE EXISTS ANY GROUP AMONG THE CITIZENS OF JACKSON THAT WOULD EMPLOY
LAWLESS VIOLENCE TO PREVENT USE OF SWIMMING POOLS BY NEGROES AND WHITES
TOGETHER.  IN MY VIEW, THE FOURTEENTH AMENDMENT DOES NOT PERMIT ANY
OFFICIAL ACT-- WHETHER IN THE FORM OF OPEN REFUSAL TO DESEGREGATE
FACILITIES THAT CONTINUE TO OPERATE, DECISIONS TO DELAY COMPLETE
DESEGREGATION, OR CLOSURE OF FACILITIES-- TO BE PREDICATED ON SO WEAK A
REED.  PUBLIC OFFICIALS SWORN TO UPHOLD THE CONSTITUTION MAY NOT AVOID
A CONSTITUTIONAL DUTY BY BOWING TO THE HYPOTHETICAL EFFECTS OF PRIVATE
RACIAL PREJUDICE THAT THEY ASSUME TO BE BOTH WIDELY AND DEEPLY HELD. 
SURELY THE PROMISE OF THE FOURTEENTH AMENDMENT DEMANDS MORE THAN
NIHILISTIC SURRENDER.  AS MR. JUSTICE FRANKFURTER OBSERVED MORE THAN 12
YEARS AGO: 

    "THE PROCESS OF ENDING UNCONSTITUTIONAL EXCLUSION OF PUPILS

  FROM THE COMMON SCHOOL SYSTEM-- 'COMMON' MEANING SHARED ALIKE--

  SOLELY BECAUSE OF COLOR IS NO DOUBT NOT AN EASY, OVERNIGHT TASK

  IN A FEW STATES WHERE DRASTIC ALTERATION IN THE WAYS OF

  COMMUNITIES IS INVOLVED.  DEEP EMOTIONS HAVE, NO DOUBT, BEEN

  STIRRED.  THEY WILL NOT BE CALMED BY LETTING VIOLENCE LOOSE--

  VIOLENCE AND DEFIANCE EMPLOYED AND ENCOURAGED BY THOSE UPON WHOM

  THE DUTY OF LAW OBSERVANCE SHOULD HAVE THE STRONGEST CLAIM-- NOR

  BY SUBMITTING TO IT UNDER WHATEVER GUISE EMPLOYED.  ONLY THE

  CONSTRUCTIVE USE OF TIME WILL ACHIEVE WHAT AN ADVANCED

  CIVILIZATION DEMANDS AND THE CONSTITUTION CONFIRMS."  COOPER V.

  AARON, 358 U.S.,AT 25 (CONCURRING OPINION). 

III 

I THUS ARRIVE AT THE QUESTION OF WHETHER CLOSING PUBLIC FACILITIES
TO CITIZENS OF BOTH RACES, WHATEVER THE REASONS FOR SUCH ACTION, IS A
SPECIAL KIND OF STATE ACTION SOMEHOW INSULATED FROM SCRUTINY UNDER THE
FOURTEENTH AMENDMENT.  AS THE OPINIONS OF THE MAJORITY AND MR. JUSTICE
DOUGLAS SHOW, MOST OF OUR PRIOR DECISIONS, BECAUSE OF THEIR FACTS, DO
NOT DEAL WITH THIS PRECISE ISSUE. 

BUSH V. ORLEANS PARISH SCHOOL BOARD, 187 F.SUPP.  42 (ED LA. 1960),
AFF'D, 365 U.S. 569 (1961), IS RELEVANT.  IN THAT CASE, A THREE-JUDGE
COURT DECLARED UNCONSTITUTIONAL A NUMBER OF LOUISIANA STATUTES DESIGNED
TO AVOID DESEGREGATION OF THE PUBLIC SCHOOLS IN THAT STATE.  AMONG THE
LAWS STRICKEN DOWN WAS A STATUTE GIVING THE GOVERNOR THE RIGHT TO CLOSE
ANY SCHOOL ORDERED TO INTEGRATE, A STATUTE GIVING THE GOVERNOR THE
RIGHT TO CLOSE ALL SCHOOLS IF ONE WAS INTEGRATED, AND A STATUTE GIVING
THE GOVERNOR THE RIGHT TO CLOSE ANY SCHOOL THREATENED WITH VIOLENCE OR
DISORDER.  WE AFFIRMED THE DISTRICT COURT SUMMARILY AND WITHOUT
DISSENT.  IBID.  /16/  SEE ALSO HALL V. ST. HELENA PARISH SCHOOL BOARD,
197 F.SUPP.  649 (ED LA. 1961), AFF'D, 368 U.S. 515 (1962). 

GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, 377 U.S. 218
(1964), IS PERHAPS DISTINGUISHABLE, BUT ONLY IF ONE IGNORES ITS BASIC
RATIONALE AND THE PURPOSE AND DIRECTION OF THIS COURT'S DECISIONS SINCE
BROWN.  FIRST, AND MOST IMPORTANTLY, GRIFFIN STANDS FOR THE PROPOSITION
THAT THE REASONS UNDERLYING CERTAIN OFFICIAL ACTS ARE HIGHLY RELEVANT
IN ASSESSING THE CONSTITUTIONAL VALIDITY OF THOSE ACTS.  WE STATED: 

"BUT THE RECORD IN THE PRESENT CASE COULD NOT BE CLEARER THAT PRINCE
EDWARD'S PUBLIC SCHOOLS WERE CLOSED AND PRIVATE SCHOOLS OPERATED IN
THEIR PLACE WITH STATE AND COUNTY ASSISTANCE, FOR ONE REASON, AND ONE
REASON ONLY:  TO ENSURE, THROUGH MEASURES TAKEN BY THE COUNTY AND THE
STATE, THAT WHITE AND COLORED CHILDREN IN PRINCE EDWARD COUNTY WOULD
NOT, UNDER ANY CIRCUMSTANCES, GO TO THE SAME SCHOOL.  WHATEVER
NONRACIAL GROUNDS MIGHT SUPPORT A STATE'S ALLOWING A COUNTY TO ABANDON
PUBLIC SCHOOLS, THE OBJECT MUST BE A CONSTITUTIONAL ONE, AND GROUNDS OF
RACE AND OPPOSITION TO DESEGREGATION DO NOT QUALIFY AS
CONSTITUTIONAL."  377 U.S.,AT 231. 

SEE ALSO GOMILLION V. LIGHTFOOT, 364 U.S. 339, 346-348 (1960); BOARD
OF EDUCATION V. ALLEN, 392 U.S. 236, 243 (1968); EPPERSON V. ARKANSAS,
393 U.S. 97, 109 (1968); ELY, LEGISLATIVE AND ADMINISTRATIVE MOTIVATION
IN CONSTITUTIONAL LAW, 79 YALE L.J. 1205 (1970); NOTE, LEGISLATIVE
PURPOSE AND FEDERAL CONSTITUTIONAL ADJUDICATION, 83 HARV.L.REV.  1887
(1970).  SECOND, GRIFFIN CONTAINS MUCH THAT IS RELEVANT TO THE KIND OF
DECREE THAT WOULD BE APPROPRIATE IF THE DECISION BELOW IS REVERSED. 
SEE 377 U.S.,AT 232-234. 

THE MAJORITY, CONCEDING THE RELEVANCE OF THE QUOTED PASSAGE FROM
GRIFFIN, STATES THAT THE "FOCUS IN (BOTH GRIFFIN AND GOMILLION) WAS ON
THE ACTUAL EFFECT OF THE ENACTMENTS, NOT UPON THE MOTIVATION WHICH LED
THE STATES TO BEHAVE AS THEY DID."  RESPONDENTS AGREE, AND ARGUE
FURTHER THAT THE PRESENT RECORD SHOWS ONLY THAT JACKSON HAS CLOSED
FACILITIES THAT WERE ONCE OPEN ON A SEGREGATED BASIS AND THAT THE
CLOSING OPERATES EQUALLY ON NEGROES AND WHITES ALIKE. 

BUT IF EFFECT WAS ALL THAT THE COURT CONSIDERED RELEVANT IN GRIFFIN,
THERE WAS NO NEED TO MENTION UNDERLYING PURPOSE AND TO STRESS THE DELAY
THAT TOOK PLACE IN VIRGINIA IN IMPLEMENTING BROWN.  /17/  MORE
IMPORTANTLY, GRIFFIN WAS ONLY ONE CASE IN A SERIES STRESSING THAT THE
FOURTEENTH AMENDMENT RIGHTS "DECLARED BY THIS COURT IN THE BROWN CASE
CAN NEITHER BE NULLIFIED OPENLY AND DIRECTLY BY STATE LEGISLATORS OR
STATE EXECUTIVE OR JUDICIAL OFFICERS, NOR NULLIFIED INDIRECTLY BY THEM
THROUGH EVASIVE SCHEMES FOR SEGREGATION WHETHER ATTEMPTED 'INGENIOUSLY
OR INGENUOUSLY.'  SMITH V. TEXAS, 311 U.S. 128, 132."  COOPER V. AARON,
SUPRA, AT 17.  IT SEEMS TO ME NEITHER WISE NOR WARRANTED TO LIMIT THIS
PRINCIPLE IN A CASE WHERE THE RECORD IS AS CLEAR AS IS THE ONE
PRESENTLY BEFORE US. 

STATE ACTION PREDICATED SOLELY ON OPPOSITION TO A LAWFUL COURT ORDER
TO DESEGREGATE IS A DENIAL OF EQUAL PROTECTION OF THE LAWS.  AS JUDGE
WISDOM SAID IN DISSENT BELOW, THE ARGUMENT THAT THE CLOSING OF THE
POOLS OPERATED EQUALLY ON NEGROES AND WHITES "IS A TIRED CONTENTION,
ONE THAT HAS BEEN OVERWORKED IN CIVIL RIGHTS CASES."  419 F.2D,AT 1232
(DISSENTING OPINION).  IT WAS MADE AND REJECTED IN GRIFFIN.  SEE, E.G.,
BRIEF OF RESPONDENT BOARD OF SUPERVISORS OF PRINCE EDWARD COUNTY IN
GRIFFIN 57-84.  /18/  IT WAS ADVANCED AND REJECTED IN DIFFERENT
CONTEXTS IN ANDERSON V. MARTIN, 375 U.S. 399 (1964) (DESIGNATION OF
RACE ON BALLOTS), AND LOVING V. VIRGINIA, 388 U.S. 1 (1967)
(MISCEGENATION LAW).  THE SAME ARGUMENT WAS REJECTED IN HUNTER V.
ERICKSON, 393 U.S. 385, 391 (1969), WHERE WE STATED THAT "ALTHOUGH THE
LAW ON ITS FACE TREATS NEGRO AND WHITE, JEW AND GENTILE IN AN IDENTICAL
MANNER, THE REALITY IS THAT THE LAW'S IMPACT FALLS ON THE MINORITY. 
THE MAJORITY NEEDS NO PROTECTION AGAINST DISCRIMINATION AND IF IT DID,
A REFERENDUM MIGHT BE BOTHERSOME BUT NO MORE THAN THAT." 

HERE, TOO, THE REALITY IS THAT THE IMPACT OF THE CITY'S ACT FALLS ON
THE MINORITY.  QUITE APART FROM THE QUESTION WHETHER THE WHITE CITIZENS
OF JACKSON HAVE A BETTER CHANCE TO SWIM THAN DO THEIR NEGRO NEIGHBORS
ABSENT CITY POOLS, THERE ARE DEEP AND TROUBLING EFFECTS ON THE RACIAL
MINORITY THAT SHOULD GIVE US ALL PAUSE.  AS STATED AT THE OUTSET OF
THIS OPINION, BY CLOSING THE POOLS SOLELY BECAUSE OF THE ORDER TO
DESEGREGATE, THE CITY IS EXPRESSING ITS OFFICIAL VIEW THAT NEGROES ARE
SO INFERIOR THAT THEY ARE UNFIT TO SHARE WITH WHITES THIS PARTICULAR
TYPE OF PUBLIC FACILITY, THOUGH POOLS WERE LONG A FEATURE OF THE CITY'S
SEGREGATED RECREATION PROGRAM.  BUT SUCH AN OFFICIAL POSITION MAY NOT
BE ENFORCED BY DESIGNATING CERTAIN POOLS FOR USE BY WHITES AND OTHERS
FOR THE USE OF NEGROES.  CLOSING THE POOLS WITHOUT A COLORABLE
NONDISCRIMINATORY REASON WAS EVERY BIT AS MUCH AN OFFICIAL ENDORSEMENT
OF THE NOTION THAT NEGROES ARE NOT EQUAL TO WHITES AS WAS THE USE OF
STATE NATIONAL GUARD TROOPS IN 1957 TO BAR THE ENTRY OF NINE NEGRO
STUDENTS INTO LITTLE ROCK'S CENTRAL HIGH SCHOOL, A PUBLIC FACILITY THAT
WAS ORDERED DESEGREGATED IN THE WAKE OF BROWN.  SEE COOPER V. AARON,
358 U.S.,AT 11.  BOTH TYPES OF STATE ACTIONS REFLECT IMPLEMENTATION OF
THE SAME OFFICIAL CONCLUSION:  NEGROES CANNOT BE PERMITTED TO ASSOCIATE
WITH WHITES.  BUT THAT NOTION HAD BEGUN TO BREAK DOWN AS THIS COURT
STRUGGLED WITH THE "SEPARATE BUT EQUAL"  DOCTRINE, SEE BROWN, 347
U.S.,AT 491-494, /19/ AND I HAD THOUGHT IT WAS EMPHATICALLY LAID TO
REST IN BROWN ITSELF, WHERE WE QUOTED WITH APPROVAL THE FINDING OF A
DISTRICT JUDGE THAT: 

     "'SEGREGATION OF WHITE AND COLORED CHILDREN IN PUBLIC SCHOOLS

  HAS A DETRIMENTAL EFFECT UPON THE COLORED CHILDREN.  THE IMPACT

  IS GREATER WHEN IT HAS THE SANCTION OF THE LAW; FOR THE POLICY OF

  SEPARATING THE RACES IS USUALLY INTERPRETED AS DENOTING THE

  INFERIORITY OF THE NEGRO GROUP.  A SENSE OF INFERIORITY AFFECTS

  THE MOTIVATION OF A CHILD TO LEARN.  SEGREGATION WITH THE

  SANCTION OF LAW, THEREFORE, HAS A TENDENCY TO (RETARD) THE

  EDUCATIONAL AND MENTAL DEVELOPMENT OF THE NEGRO CHILDREN AND TO

  DEPRIVE THEM OF SOME OF THE BENEFITS THEY WOULD RECEIVE IN A

  RACIALLY) INTEGRATED SCHOOL SYSTEM.'"  347 U.S.,AT 494. 

THESE CONSIDERATIONS WERE NOT ABANDONED AS BROWN WAS APPLIED IN OTHER
CONTEXTS, AND IT IS UNTENABLE TO SUGGEST THAT THE CLOSING OF THE
SWIMMING POOLS-- A PRONOUNCEMENT THAT NEGROES ARE SOMEHOW UNFIT TO SWIM
WITH WHITES-- OPERATES EQUALLY ON NEGROES AND WHITES.  WHITES FEEL
NOTHING BUT DISAPPOINTMENT AND PERHAPS ANGER AT THE LOSS OF THE
FACILITIES.  NEGROES FEEL THAT AND MORE.  THEY ARE STIGMATIZED BY
OFFICIAL IMPLEMENTATION OF A POLICY THAT THE FOURTEENTH AMENDMENT
CONDEMNS AS ILLEGAL.  AND THE CLOSED POOLS STAND AS MUTE REMINDERS TO
THE COMMUNITY OF THE OFFICIAL VIEW OF NEGRO INFERIORITY. 

MOREOVER, THIS COURT HAS CAREFULLY GUARDED THE RIGHTS OF NEGROES TO
ATTACK STATE-SANCTIONED SEGREGATION THROUGH THE PEACEFUL CHANNELS OF
THE JUDICIAL PROCESS.  THIS COURT HAS RECENTLY DISCUSSED AND ANALYZED
VARIOUS PROVISIONS OF THE RECONSTRUCTION CIVIL RIGHTS STATUTES, AND
THERE IS LITTLE NEED HERE TO REPEAT ANYTHING MORE THAN THE MOST RECENT
OBSERVATION THAT "(THE APPROACH OF THIS COURT . . . HAS BEEN TO 'ACCORD
(THESE STATUTES) A SWEEP AS BROAD AS (THEIR) LANGUAGE.'"  GRIFFIN V.
BRECKENRIDGE, ANTE, P. 88, AT 97.  /20/  OF COURSE, 42 U.S.C. 1981
SPECIFICALLY DECLARES THAT "(ALL PERSONS . . . SHALL HAVE THE SAME
RIGHT . . . TO SUE . . . AS IS ENJOYED BY WHITE CITIZENS . . . ." 
CONGRESS HAS SUPPLEMENTED THIS EARLY LEGISLATION, AND THIS COURT HAS
COMMENTED ON THE IMPORTANCE OF PRIVATE PLAINTIFFS IN ENFORCING CIVIL
RIGHTS STATUTES.  NEWMAN V. PIGGIE PARK ENTERPRISES, INC., 390 U.S.
400, 401-402 (1968); SEE ALSO NAACP V. ALABAMA, 357 U.S. 449 (1958). 
THE CIVIL RIGHTS ACT OF 1964 PROVIDED AN ADDITIONAL AVENUE FOR A
POTENTIAL PRIVATE PLAINTIFF TO FOLLOW.  PROVISIONS OF THAT ACT
AUTHORIZE THE ATTORNEY GENERAL TO BRING A CIVIL SUIT IN THE NAME OF THE
UNITED STATES WHENEVER HE RECEIVES A SIGNED COMPLAINT IN WRITING FROM
AN INDIVIDUAL THAT SUCH PERSON IS BEING DENIED EQUAL PROTECTION OF THE
LAWS BY BEING DENIED EQUAL UTILIZATION OF ANY PUBLIC FACILITIES SUCH AS
THOSE INVOLVED IN THE PRESENT CASE.  42 U.S.C. 2000BA).  THE ATTORNEY
GENERAL MAY BRING SUCH A SUIT IF HE BELIEVES THE COMPLAINT TO BE
MERITORIOUS AND CERTIFIES THAT THE SIGNER OF THE COMPLAINT IS UNABLE,
IN HIS JUDGMENT, TO INITIATE AND MAINTAIN AN APPROPRIATE PRIVATE SUIT. 
IBID.  THE STATUTE FURTHER DEFINES WHEN THE ATTORNEY GENERAL MAY DEEM A
COMPLAINANT UNABLE TO INITIATE OR MAINTAIN A PRIVATE ACTION, SPECIFYING
INABILITY TO BEAR THE EXPENSE OF PRIVATE LITIGATION AND THE POSSIBILITY
THAT "THE INSTITUTION OF SUCH LITIGATION WOULD JEOPARDIZE THE PERSONAL
SAFETY, EMPLOYMENT, OR ECONOMIC STANDING OF SUCH PERSON OR PERSONS,
THEIR FAMILIES, OR THEIR PROPERTY."  42 U.S.C. 2000BB). 

IT IS EVIDENT THAT CLOSING A PUBLIC FACILITY AFTER A COURT HAS
ORDERED ITS DESEGREGATION HAS AN UNFORTUNATE IMPACT ON THE MINORITY
CONSIDERING INITIATION OF FURTHER SUITS OR FILING COMPLAINTS WITH THE
ATTORNEY GENERAL.  AS JUDGE WISDOM SAID, "(THE PRICE OF PROTEST IS
HIGH.  NEGROES . . . NOW KNOW THAT THEY RISK LOSING EVEN SEGREGATED
PUBLIC FACILITIES IF THEY DARE TO PROTEST . . . SEGREGATED FACILITIES. 
THEY MUST FIRST DECIDE WHETHER THEY WISH TO RISK LIVING WITHOUT THE
FACILITY ALTOGETHER . . . ."  419 F.2D,AT 1236 (DISSENTING OPINION). 
IT IS DIFFICULT TO MEASURE THE EXTENT OF THIS IMPACT, BUT IT IS SURELY
PRESENT AND SURELY WE SHOULD NOT IGNORE IT.  THE ACTION OF THE CITY IN
THIS CASE INTERPOSES A MAJOR DETERRENT TO SEEKING JUDICIAL OR EXECUTIVE
HELP IN ELIMINATING RACIAL RESTRICTIONS ON THE USE OF PUBLIC
FACILITIES.  /21/  AS SUCH, IT IS ILLEGAL UNDER THE FOURTEENTH
AMENDMENT.  SEE SHAPIRO V. THOMPSON, 394 U.S. 618, 631 (1969); UNITED
STATES V. JACKSON, 390 U.S. 570, 581 (1968); DOMBROWSKI V. PFISTER, 380
U.S. 479, 486-487 (1965); SEE ALSO OREGON V. MITCHELL, 400 U.S. 112,
292 (1970) (STEWART, J., CONCURRING AND DISSENTING). 

        IV 

FROM WHAT HAS BEEN STATED ABOVE, IT IS CLEAR THAT THE CITY'S ACTION
IN CLOSING THE POOLS BECAUSE OF OPPOSITION TO THE DECISION IN CLARK V.
THOMPSON WAS "AN EXERCISE OF THE STATE POLICE POWER WHICH TRENCHES UPON
THE CONSTITUTIONALLY PROTECTED FREEDOM FROM INVIDIOUS OFFICIAL
DISCRIMINATION BASED ON RACE."  MCLAUGHLIN V. FLORIDA, 379 U.S. 184,
196 (1964).  AS SUCH, IT "BEARS A HEAVY BURDEN OF JUSTIFICATION . . .
AND WILL BE UPHELD ONLY IF IT IS NECESSARY, AND NOT MERELY RATIONALLY
RELATED, TO THE ACCOMPLISHMENT OF A PERMISSIBLE STATE POLICY."  IBID.;
SEE ALSO LOVING V. VIRGINIA, 388 U.S. 1 (1967).  THE CITY HAS ONLY
OPPOSITION TO DESEGREGATION TO OFFER AS A JUSTIFICATION FOR CLOSING THE
POOLS, AND THIS OPPOSITION OPERATES BOTH TO DEMEAN THE NEGROES OF
JACKSON AND TO DETER THEM FROM EXERCISING THEIR CONSTITUTIONAL AND
STATUTORY RIGHTS.  THE RECORD IS CLEAR THAT THESE PUBLIC FACILITIES HAD
BEEN MAINTAINED AND WOULD HAVE BEEN MAINTAINED BUT FOR ONE EVENT:  A
COURT ORDER TO OPEN THEM TO ALL CITIZENS WITHOUT REGARD TO RACE.  I
WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CAUSE
FOR FURTHER PROCEEDINGS. 

/1/  SEE BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715 (1961)
(SEGREGATED RESTAURANT OPERATED UNDER LEASE IN MUNICIPAL FACILITY). 

/2/  SEE, E.G., BOYNTON V. VIRGINIA, 364 U.S. 454 (1960)
(APPLICATION OF INTERSTATE COMMERCE ACT); BURTON, SUPRA, N. 1; TURNER
V. CITY OF MEMPHIS, 369 U.S. 350 (1962) (PUBLIC RESTAURANT IN MUNICIPAL
AIRPORT); JOHNSON V. VIRGINIA, 373 U.S. 61 (1963) (COURTROOMS); BROWN
V. LOUISIANA, 383 U.S. 131, 139 (1966) (LIBRARIES); CITY OF ST.
PETERSBURG V. ALSUP, 238 F.2D 830 (CA5 1956) (BEACH AND SWIMMING POOL);
DEPARTMENT OF CONSERVATION & DEVELOPMENT V. TATE, 231 F.2D 615 (CA4),
CERT. DENIED, 352 U.S. 838 (1956) (STATE PARK); WILLIE V. HARRIS
COUNTY, 202 F.SUPP.  549 (SD TEX. 1962) (COUNTY PARK); SHUTTLESWORTH V.
GAYLORD, 202 F.SUPP.  59 (ND ALA. 1961), AFF'D SUB NOM.  HANES V.
SHUTTLESWORTH, 310 F.2D 303 (CA5 1962) (PARKS, TENNIS COURTS, SWIMMING
POOLS, ZOO, GOLF COURSES, BASEBALL PARKS, MUSEUM, AUDITORIUM); MOORHEAD
V. CITY OF FT. LAUDERDALE, 152 F.SUPP.  131 (SD FLA.), AFF'D, 248 F.2D
544 (CA5 1957) (GOLF COURSE); WARD V. CITY OF MIAMI, 151 F.SUPP.  593
(SD FLA. 1957) (GOLF COURSE); HOLLEY V. CITY OF PORTSMOUTH, 150
F.SUPP.  6 (ED VA. 1957) (GOLF COURSE); FAYSON V. BEARD, 134 F.SUPP. 
379 (ED TEX. 1955) (CITY PARKS). 

/3/  SEE ALSO GREEN V. COUNTY SCHOOL BOARD OF NEW KENT COUNTY, 391
U.S. 430 (1968). 

/4/  SEE THOMAS V. MISSISSIPPI, 380 U.S. 524 (1965); NAACP V.
THOMPSON, 357 F.2D 831 (CA5 1966); BAILEY V. PATTERSON, 199 F.SUPP. 
595 (SD MISS.  1961), VACATED, 369 U.S. 31 (1962); UNITED STATES V.
CITY OF JACKSON, 206 F.SUPP.  45 (SD MISS.  1962), REV'D, 318 F.2D 1, 5
6 (CA5 1963) (COMMON CARRIER TERMINALS), WHERE THE COURT OF APPEALS
STATED: 

"WE AGAIN TAKE JUDICIAL NOTICE THAT THE STATE OF MISSISSIPPI HAS A
STEEL-HARD, INFLEXIBLE, UNDEVIATING OFFICIAL POLICY OF SEGREGATION. 
THE POLICY IS STATED IN ITS LAWS.  IT IS ROOTED IN CUSTOM.  THE
SEGREGATION SIGNS AT THE TERMINALS IN JACKSON CARRY OUT THAT POLICY. 
THE JACKSON POLICY ADD MUSCLE, BONE, AND SINEW TO THE SIGNS." 
(FOOTNOTES OMITTED.) 

SEE ALSO SINGLETON V. JACKSON MUNICIPAL SEPARATE SCHOOL DIST., 348
F.2D 729 (CA5 1965); SINGLETON V. JACKSON MUNICIPAL SEPARATE SCHOOL
DIST., 355 F.2D 865 (CA5 1966); SINGLETON V. JACKSON MUNICIPAL SEPARATE
SCHOOL DIST., 419 F.2D 1211 (CA5 1969), REV'D IN PART SUB NOM.  CARTER
V. WEST FELICIANA PARISH SCHOOL BOARD, 396 U.S. 290 (1970); SINGLETON
V. JACKSON MUNICIPAL SEPARATE SCHOOL DIST., 426 F.2D 1364 (CA5),
MODIFIED, 430 F.2D 368 (CA5 1970); SINGLETON V. JACKSON MUNICIPAL
SEPARATE SCHOOL DIST., 432 F.2D 927 (CA5 1970). 

/5/  IN AN AFFIDAVIT FILED AUGUST 18, 1965, IN THE DISTRICT COURT IN
THE PRESENT CASE, MAYOR THOMPSON STATED, "I BELIEVE THAT THE WELFARE OF
BOTH RACES WOULD HAVE BEST BEEN SERVED IF (THE CUSTOM THAT MEMBERS OF
EACH RACE WOULD USE THE RECREATIONAL FACILITIES NEAR THEIR HOMES) HAD
CONTINUED." 

/6/  BUT SEE BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 495 (1954);
DAWSON V. MAYOR AND CITY COUNCIL OF BALTIMORE, 220 F.2D 386 (CA4),
AFF'D, 350 U.S. 877 (1955); HOLMES V. CITY OF ATLANTA, 223 F.2D 93, 94
95 (CA5), REV'D, 350 U.S. 879 (1955); BROWDER V. GAYLE, 142 F.SUPP. 
707, 714 (MD ALA.), AFF'D, 352 U.S. 903 (1956); NEW ORLEANS CITY PARK
IMPROVEMENT ASSN. V. DETIEGE, 252 F.2D 122, 123 (CA5), AFF'D, 358 U.S.
54 (1958); SEE ALSO CARTER V. JURY COMM'N OF GREENE COUNTY, 396 U.S.
320, 329-330 (1970). 

/7/  BUT SEE CASES CITED N. 6, SUPRA. 

/8/  SEE RESPONDENTS' BRIEF 3; AFFIDAVIT OF ALLEN C. THOMPSON, APP.
21; AFFIDAVIT OF GEORGE T. KURTS, APP. 18. 

/9/  AT THE TIME CLARK V. THOMPSON WAS DECIDED, THE POPULATION OF
JACKSON CONSISTED OF APPROXIMATELY 100,000 WHITES AND 50,000 NEGROES. 
DESPITE THIS 2:1 RATIO IN POPULATION, THERE WERE FOUR SWIMMING
FACILITIES FOR WHITES AND ONLY ONE FOR NEGROES. 

/10/  I AGREE FULLY WITH THE MAJORITY THAT IF A CITY OR STATE
BECOMES INVOLVED IN ANY WAY IN THE OPERATION OF FACILITIES ON A
SEGREGATED BASIS BY PRIVATE PARTIES, THE FOURTEENTH AMENDMENT IS
VIOLATED.  SEE BURTON V. WILMINGTON PARKING AUTHORITY, SUPRA, N. 1;
HAMPTON V. CITY OF JACKSONVILLE, 304 F.2D 320 (CA5), CERT. DENIED SUB
NOM.  GHIOTO V. HAMPTON, 371 U.S. 911 (1962); SMITH V. YOUNG MEN'S
CHRISTIAN ASSN. OF MONTGOMERY, 316 F.SUPP.  899 (MD ALA. 1970) (CITY
AGREEMENT WITH YMCA TO COORDINATE CITY AND YMCA RECREATIONAL ACTIVITIES
TO ELIMINATE DUPLICATION OF SERVICES HAD AS ITS PRIMARY PURPOSE AND
EFFECT ENCOURAGEMENT AND ASSISTANCE OF YMCA IN MAINTAINING SEGREGATED
RECREATIONAL FACILITIES AND PROGRAMS); CHINN V. CANTON, CIV. NO. 3764
(SD MISS., NOV. 18, 1965) (UNREPORTED) (TOWN LEASED MUNICIPAL POOL TO
PRIVATE ALL-WHITE ASSOCIATION; POOL ORDERED DESEGREGATED). 

/11/  DURING THE PROCEEDINGS IN THIS CASE, IT WAS DEVELOPED THAT THE
BENCHES IN THE LIVINGSTON PARK ZOO WERE REMOVED IN 1961, AND THAT THE
PUBLIC REST ROOMS IN THE MUNICIPAL COURT BUILDING WERE CLOSED AT SOME
POINT IN TIME.  SEE PALMER V. THOMPSON, 419 F.2D 1222, 1231 (CA5 1969)
(DISSENTING OPINION); AFFIDAVIT OF ALLEN C. THOMPSON, APP. 21. 

/12/  THE MAYOR'S AFFIDAVIT MAKES NO MENTION OF "MINOR WATER
DIFFICULTY." 

/13/  THE PARKS DIRECTOR'S AFFIDAVIT MAKES NO MENTION OF "MINOR
WATER DIFFICULTY." 

/14/  AT ORAL ARGUMENT, COUNSEL FOR THE CITY SO CONCEDED.  TR. OF
ORAL ARG. 28-29. 

/15/  IN ITS BRIEF, THE CITY ARGUES:  "THIS COURT WILL TAKE JUDICIAL
KNOWLEDGE OF THE FACT THAT THERE STILL EXISTS A SERIOUS DANGER OF
VIOLENT CLASHES BETWEEN YOUNG PEOPLE OF DIFFERENT RACIAL GROUPS,
WHETHER STEMMING FROM ACTS OF OR PROMOTED BY ONE GROUP OR THE OTHER." 
RESPONDENTS' BRIEF 10.  BUT THIS IS, AS NOTED IN THE TEXT, CONTRARY TO
THE RECORD DEVELOPED IN THE COURTS BELOW.  MOREOVER, AT ORAL ARGUMENT
COUNSEL FOR THE RESPONDENTS STATED THAT TO HIS KNOWLEDGE THERE HAS BEEN
NO INTERRACIAL VIOLENCE IN JACKSON SINCE THE 1961 FREEDOM RIDER
INCIDENTS.  SEE TR. OF ORAL ARG. 36. 

/16/  I CANNOT AGREE WITH THE MAJORITY'S ATTEMPT TO DISCOUNT THE
SIGNIFICANCE OF BUSH.  FIRST, THE ACTION TAKEN IN BUSH IN NO SENSE
DEPENDED ON OUR CONCLUSION IN BROWN THAT THE PROVISION OF PUBLIC
EDUCATION WAS AN ESPECIALLY IMPORTANT STATE FUNCTION.  HAD THAT BEEN
THE CASE, AND HAD RECREATIONAL FACILITIES SOMEHOW BEEN CONSIDERED LESS
ESSENTIAL, THE COURT SHOULD HAVE ACCEPTED THE ARGUMENT MADE BY SOME
STATES THAT BROWN NOT BE EXTENDED TO RECREATIONAL FACILITIES.  THIS WE
DID NOT DO.  SEE DAWSON, SUPRA, AND HOLMES, SUPRA.  SIMILARLY, IF SUCH
A DISTINCTION WAS AT ALL TENABLE, THE EXTENSION OF THE "ALL DELIBERATE
SPEED" APPROACH TO DESEGREGATING PUBLIC FACILITIES MIGHT HAVE BEEN
APPROPRIATE.  BUT THIS ARGUMENT WAS ALSO EMPHATICALLY REJECTED.  SEE
WATSON, SUPRA, AT 529-530.  WHEN A PUBLIC AGENCY FURNISHES A SERVICE--
REGARDLESS OF WHETHER OR NOT IT IS AN "ESSENTIAL" ONE-- IT MUST ACT IN
A NONDISCRIMINATORY MANNER WITH REGARD TO THAT SERVICE. 

SECOND, EVEN ACCEPTING THE MAJORITY'S CHARACTERIZATION OF PUBLIC
SCHOOLS AS "IMPORTANT," THERE IS MUCH IN OUR PREVIOUS DECISIONS TO
CONTRADICT ITS IMPLICATION THAT PROVIDING SWIMMING POOLS AND OTHER
PUBLIC RECREATIONAL FACILITIES IS NOT A SIGNIFICANT STATE FUNCTION.  IN
EVANS V. NEWTON, 382 U.S. 296, 302 (1966), THE COURT STATED:     "A
PARK . . . IS MORE LIKE A FIRE DEPARTMENT OR POLICE DEPARTMENT THAT
TRADITIONALLY SERVES THE COMMUNITY.  MASS RECREATION THROUGH THE USE OF
PARKS IS PLAINLY IN THE PUBLIC DOMAIN, WATSON V. MEMPHIS, 373 U.S. 526;
AND STATE COURTS THAT AID PRIVATE PARTIES TO PERFORM THAT PUBLIC
FUNCTION ON A SEGREGATED BASIS IMPLICATE THE STATE IN CONDUCT
PROSCRIBED BY THE FOURTEENTH AMENDMENT." 

SEE ALSO EVANS V. ABNEY, 396 U.S. 435, 443-445 (1970), WHERE MR.
JUSTICE BLACK, WRITING FOR THE COURT, STATED: 

"WHEN A CITY PARK IS DESTROYED BECAUSE THE CONSTITUTION REQUIRES IT
TO BE INTEGRATED, THERE IS REASON FOR EVERYONE TO BE DISHEARTENED.  WE
AGREE WITH PETITIONERS THAT IN SUCH A CASE IT IS NOT ENOUGH TO FIND
THAT THE STATE COURT'S RESULT WAS REACHED THROUGH THE APPLICATION OF
ESTABLISHED PRINCIPLES OF STATE LAW.  NO STATE LAW OR ACT CAN PREVAIL
IN THE FACE OF CONTRARY FEDERAL LAW, AND THE FEDERAL COURTS MUST SEARCH
OUT THE FACT AND TRUTH OF ANY PROCEEDING OR TRANSACTION TO DETERMINE IF
THE CONSTITUTION HAS BEEN VIOLATED. 

        .          .          .          . 

"A SECOND ARGUMENT FOR PETITIONERS STRESSES THE SIMILARITIES BETWEEN
THIS CASE AND THE CASE IN WHICH A CITY HOLDS AN ABSOLUTE FEE SIMPLE
TITLE TO A PUBLIC PARK AND THEN CLOSES THAT PARK OF ITS OWN ACCORD
SOLELY TO AVOID THE EFFECT OF A PRIOR COURT ORDER DIRECTING THAT THE
PARK BE INTEGRATED AS THE FOURTEENTH AMENDMENT COMMANDS.  YET, ASSUMING
ARGUENDO THAT THE CLOSING OF THE PARK WOULD IN THOSE CIRCUMSTANCES
VIOLATE THE EQUAL PROTECTION CLAUSE, THAT CASE WOULD BE CLEARLY
DISTINGUISHABLE FROM THE CASE AT BAR BECAUSE THERE IT IS THE STATE AND
NOT A PRIVATE PARTY WHICH IS INJECTING THE RACIALLY DISCRIMINATORY
MOTIVATION.  IN THE CASE AT BAR THERE IS NOT THE SLIGHTEST INDICATION
THAT ANY OF THE GEORGIA JUDGES INVOLVED WERE MOTIVATED BY RACIAL ANIMUS
OR DISCRIMINATORY INTENT OF ANY SORT IN CONSTRUING AND ENFORCING
SENATOR BACON'S WILL." 

THIS WAS THE INQUIRY MADE IN BUSH, AND IT LED TO STRIKING DOWN THE
STATUTES IN QUESTION.  WE AFFIRMED THAT RULING, AND THE RECORD HERE IS
NO LESS CLEAR.  AND AS THE MAJORITY CONCEDES, ANTE, AT 221 N. 6, SURELY
IT IS NOT IRRELEVANT IN CONSIDERING THE CONTEXT IN WHICH JACKSON'S
POOLS WERE CLOSED, THAT A STATUTE OF THE STATE OF MISSISSIPPI, IN
EFFECT SINCE 1956, PROVIDES: 

"THAT THE ENTIRE EXECUTIVE BRANCH OF THE GOVERNMENT OF THE STATE OF
MISSISSIPPI, AND OF ITS SUBDIVISIONS, AND ALL PERSONS RESPONSIBLE
THERETO, INCLUDING THE GOVERNOR, THE LIEUTENANT GOVERNOR, THE HEADS OF
STATE DEPARTMENTS, SHERIFFS, BOARDS OF SUPERVISORS, CONSTABLES, MAYORS,
BOARDS OF ALDERMEN AND OTHER GOVERNING OFFICIALS OF MUNICIPALITIES BY
WHATEVER NAME KNOWN . . . WHETHER SPECIFICALLY NAMED HEREIN OR NOT . .
. SHALL GIVE FULL FORCE AND EFFECT IN THE PERFORMANCE OF THEIR OFFICIAL
AND POLITICAL DUTIES, TO THE RESOLUTION OF INTERPOSITION . . . AND ALL
OF SAID MEMBERS OF THE EXECUTIVE BRANCH BE AND THEY ARE HEREBY . . .
DIRECTED AND REQUIRED TO PROHIBIT, BY ANY LAWFUL, PEACEFUL AND
CONSTITUTIONAL MEANS, THE IMPLEMENTATION OF OR THE COMPLIANCE WITH THE
INTEGRATION DECISIONS OF THE UNITED STATES SUPREME COURT OF MAY 17,
1954 (347 US 483), . . . AND OF MAY 31, 1955 (349 US 294), . . . AND TO
PROHIBIT BY ANY LAWFUL, PEACEFUL, AND CONSTITUTIONAL MEANS, THE CAUSING
OF A MIXING OR INTEGRATION OF THE WHITE AND NEGRO RACES IN PUBLIC
SCHOOLS, PUBLIC PARKS, PUBLIC WAITING ROOMS, PUBLIC PLACES OF
AMUSEMENT, RECREATION OR ASSEMBLY IN THIS STATE, BY ANY BRANCH OF THE
FEDERAL GOVERNMENT, ANY PERSON EMPLOYED BY THE FEDERAL GOVERNMENT, ANY
COMMISSION, BOARD OR AGENCY OF THE FEDERAL GOVERNMENT, OR ANY
SUBDIVISION OF THE FEDERAL GOVERNMENT, AND TO PROHIBIT, BY ANY LAWFUL,
PEACEFUL AND CONSTITUTIONAL MEANS, THE IMPLEMENTATION OF ANY ORDERS,
RULES OR REGULATIONS OF ANY BOARD, COMMISSION OR AGENCY OF THE FEDERAL
GOVERNMENT, BASED ON THE SUPPOSED AUTHORITY OF SAID INTEGRATION
DECISIONS, TO CAUSE A MIXING OR INTEGRATION OF THE WHITE AND NEGRO
RACES IN PUBLIC SCHOOLS, PUBLIC PARKS, PUBLIC WAITING ROOMS, PUBLIC
PLACES OF AMUSEMENT, RECREATION OR ASSEMBLY IN THIS STATE."  MISS. 
CODE ANN. SEC. 4065.3 (1957); SEE UNITED STATES V. CITY OF JACKSON, 318
F.2D 1, 5-6 (CA5 1963) (JUDICIAL NOTICE TAKEN OF THIS STATUTE). 

/17/  SEE ALSO GREEN, SUPRA, N. 3. 

/18/  IN THEIR BRIEFS IN GRIFFIN, NO. 592, O.T. 1963, THE
RESPONDENTS RELIED ON PREVIOUS LOWER COURT CASES THAT HAVE PERMITTED
CLOSING PUBLIC RECREATIONAL FACILITIES AFTER DECREES HAD BEEN ENTERED
ORDERING THAT THEY BE DESEGREGATED.  SEE BRIEF OF RESPONDENT BOARD OF
SUPERVISORS IN GRIFFIN 65-66.  SEE ALSO BRIEF OF RESPONDENTS STATE
BOARD OF EDUCATION AND SUPERINTENDENT OF PUBLIC INSTRUCTION IN GRIFFIN
53-63.  GRIFFIN REJECTED THE RELEVANCE OF THESE DECISIONS; HOWEVER, THE
PRESENT RESPONDENTS RELY ON THEM HERE AND THE MAJORITY IMPLICITLY
EMBRACES THEM. 

/19/  THE COURT IN BROWN NOTED THAT IN SWEATT V. PAINTER, 339 U.S.
629 (1950), THE COURT HAD HELD THAT A SEGREGATED LAW SCHOOL FOR NEGROES
COULD NOT PROVIDE THEM EQUAL EDUCATIONAL OPPORTUNITIES, RELYING IN
LARGE PART ON "THOSE QUALITIES WHICH ARE INCAPABLE OF OBJECTIVE
MEASUREMENT BUT WHICH MAKE FOR GREATNESS IN A LAW SCHOOL."  339 U.S.,AT
634.  THE COURT IN BROWN ALSO RELIED ON MCLAURIN V. OKLAHOMA STATE
REGENTS, 339 U.S. 637 (1950), IN WHICH IT WAS REQUIRED THAT A NEGRO
STUDENT IN A WHITE GRADUATE SCHOOL BE TREATED LIKE ALL OTHER STUDENTS
IN ORDER TO AVOID IMPAIRING "HIS ABILITY TO STUDY, TO ENGAGE IN
DISCUSSIONS AND EXCHANGE VIEWS WITH OTHER STUDENTS, AND, IN GENERAL, TO
LEARN HIS PROFESSION."  339 U.S.,AT 641. 

/20/  QUOTING UNITED STATES V. PRICE, 383 U.S. 787, 801 (1966); SEE
ALSO ADICKES V. S. H. KRESS & CO., 398 U.S. 144 (1970); JONES V. ALFRED
H. MAYER CO., 392 U.S. 409 (1968). 

/21/  NOR SHOULD WE BE LULLED BY THE SUGGESTION THAT ALL OF
JACKSON'S PUBLIC FACILITIES HAVE BEEN INTEGRATED.  AS THE MAJORITY
CORRECTLY STATES, "(IF THE TIME EVER COMES WHEN JACKSON ATTEMPTS TO RUN
SEGREGATED PUBLIC POOLS EITHER DIRECTLY OR INDIRECTLY, OR PARTICIPATES
IN A SUBTERFUGE WHEREBY POOLS ARE NOMINALLY RUN BY 'PRIVATE PARTIES'
BUT ACTUALLY BY THE CITY, RELIEF WILL BE AVAILABLE IN THE FEDERAL
COURTS."  THIS IS BUT A PARTIAL SUMMARY OF THE LITIGATION THAT MAY LIE
AHEAD AS SOME CITIES ATTEMPT TO AVOID THE REQUIREMENT THAT PUBLIC
FACILITIES BE OPERATED ON AN INTEGRATED BASIS.  IT DEMONSTRATES THAT IT
IS SURELY WRONG TO SUGGEST THAT SIMPLY BECAUSE A CITY PRESENTLY
OPERATES NO SEGREGATED FACILITIES THERE IS NOTHING THAT WILL NEED TO BE
DONE BY WAY OF LITIGATION TO ENFORCE THE FOURTEENTH AMENDMENT IN THE
FUTURE.  ASSUME FOR INSTANCE THAT IT CAN BE SHOWN THAT A CITY IS
PROVIDING SOME FORM OF COVERT ASSISTANCE TO A "PRIVATE" ORGANIZATION
SUCH AS THE YMCA TO RUN SWIMMING POOLS ON A SEGREGATED BASIS, ONE FOR
THE WHITES AND ONE FOR THE NEGROES; ANOTHER EXAMPLE WOULD BE A
"DESEGREGATED" PUBLIC SCHOOL OFFERING SEGREGATED CLASSES, PERHAPS
INCLUDING PHYSICAL EDUCATION AND SWIMMING.  ALTHOUGH WE ARE ALL AGREED
THAT SUCH CONDUCT IS ILLEGAL, THE MAJORITY APPARENTLY BELIEVES THAT
ALLOWING A CITY TO CLOSE PUBLIC FACILITIES SOLELY BECAUSE OF OPPOSITION
TO DESEGREGATION WOULD EXERT NO EFFECT WHATSOEVER ON THE DELIBERATIONS
OF NEGRO PLAINTIFFS CONSIDERING A COURT CHALLENGE TO THESE NEWER, MORE
SUBTLE DISCRIMINATORY PRACTICES.  SEE N. 10, SUPRA.  TO ME, IT IS CLEAR
THAT THE MAJORITY'S EDICT PLACES A POWERFUL WEAPON AT THE DISPOSAL OF
PUBLIC OFFICIALS HOSTILE TO FULFILLING THE PROMISE OF THE FOURTEENTH
AMENDMENT.  THREAT OF SUIT BY NEGROES IN EITHER CASE HYPOTHESIZED ABOVE
IS LIKELY TO BE COUNTERED BY A THREAT, AND PERHAPS ACTION, TO CLOSE THE
COVERTLY RUN SEGREGATED POOLS-- IN SCHOOLS OR OUTSIDE. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

WHILE I AM IN COMPLETE AGREEMENT WITH THE OPINIONS OF JUSTICES
DOUGLAS AND WHITE, I AM OBLIGED TO ADD A FEW WORDS OF MY OWN. 

FIRST, THE MAJORITY AND CONCURRING OPINIONS' RELIANCE ON THE
"FACIALLY EQUAL EFFECT UPON ALL CITIZENS" OF THE DECISION TO
DISCONTINUE ALL PUBLIC POOLS IS MISPLACED.  AS LONG AGO AS 1948 IN
SHELLEY V. KRAEMER, 334 U.S. 1, 22, THIS COURT HELD: 

"THE RIGHTS CREATED BY THE FIRST SECTION OF THE FOURTEENTH AMENDMENT
ARE, BY ITS TERMS, GUARANTEED TO THE INDIVIDUAL.  THE RIGHTS
ESTABLISHED ARE PERSONAL RIGHTS.  IT IS, THEREFORE, NO ANSWER TO THESE
PETITIONERS TO SAY THAT THE COURTS MAY ALSO BE INDUCED TO DENY WHITE
PERSONS RIGHTS OF OWNERSHIP AND OCCUPANCY ON GROUNDS OF RACE OR COLOR. 
EQUAL PROTECTION OF THE LAWS IS NOT ACHIEVED THROUGH INDISCRIMINATE
IMPOSITION OF INEQUALITIES." 

IN SHORT, WHEN THE OFFICIALS OF JACKSON, MISSISSIPPI, IN THE
CIRCUMSTANCES OF THIS CASE DETAILED BY MR. JUSTICE WHITE DENIED A
SINGLE NEGRO CHILD THE OPPORTUNITY TO GO SWIMMING SIMPLY BECAUSE HE IS
A NEGRO, RIGHTS GUARANTEED TO THAT CHILD BY THE FOURTEENTH AMENDMENT
WERE LOST.  THE FACT THAT THE COLOR OF HIS SKIN IS USED TO PREVENT
OTHERS FROM SWIMMING IN PUBLIC POOLS IS IRRELEVANT. 

SECOND, SINCE BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954),
PUBLIC SCHOOLS AND PUBLIC RECREATIONAL FACILITIES SUCH AS SWIMMING
POOLS HAVE RECEIVED IDENTICAL FOURTEENTH AMENDMENT PROTECTION.  INDEED,
EXACTLY ONE WEEK AFTER BROWN I THIS COURT REMANDED THREE CASES IN THE
SAME PER CURIAM:  FLORIDA EX REL. HAWKINS V. BOARD OF CONTROL OF
FLORIDA; TUREAUD V. BOARD OF SUPERVISORS; AND MUIR V. LOUISVILLE PARK
THEATRICAL ASSN., 347 U.S. 971.  THE FIRST TWO INVOLVED UNIVERSITY
EDUCATION AND THE LATTER INVOLVED RECREATIONAL FACILITIES. 

EVEN BEFORE BROWN II, 349 U.S. 294 (1955), IT WAS RECOGNIZED AS
OBVIOUS THAT "RACIAL SEGREGATION IN RECREATIONAL ACTIVITIES CAN NO
LONGER BE SUSTAINED AS A PROPER EXERCISE OF THE POLICE POWER OF THE
STATE; FOR IF THAT POWER CANNOT BE INVOKED TO SUSTAIN RACIAL
SEGREGATION IN THE SCHOOLS, WHERE ATTENDANCE IS COMPULSORY AND RACIAL
FRICTION MAY BE APPREHENDED FROM THE ENFORCED COMMINGLING OF THE RACES,
IT CANNOT BE SUSTAINED WITH RESPECT TO PUBLIC BEACH AND BATHHOUSE
FACILITIES, THE USE OF WHICH IS ENTIRELY OPTIONAL."  DAWSON V. MAYOR
AND CITY COUNCIL OF BALTIMORE, 220 F.2D 386, 387 (CA4), AFF'D PER
CURIAM, 350 U.S. 877 (1955).  SEE ALSO DEPARTMENT OF CONSERVATION &
DEVELOPMENT V. TATE, 231 F.2D 615 (CA4), CERT. DENIED, 352 U.S. 838
(1956). 

BY EFFECTIVELY REMOVING PUBLICLY OWNED SWIMMING POOLS FROM THE
PROTECTION OF THE FOURTEENTH AMENDMENT-- AT LEAST IF THE POOLS ARE
OUTSIDE SCHOOL BUILDINGS-- THE MAJORITY AND CONCURRING OPINIONS TURN
THE CLOCK BACK 17 YEARS.  AFTER LOSING A HARD FOUGHT LEGAL BATTLE TO
MAINTAIN SEGREGATION IN THE PUBLIC FACILITIES, THE JACKSON,
MISSISSIPPI, AUTHORITIES NOW SEEK TO PICK AND CHOOSE /1/  WHICH OF THE
EXISTING FACILITIES WILL BE KEPT OPEN.  THEIR CHOICE IS RATIONALIZED ON
THE BASIS OF ECONOMIC NEED AND IS EVEN MORE TRANSPARENT THAN PUTTING
THE MATTER TO A REFERENDUM VOTE. 

FINALLY, I CANNOT CONCEIVE WHY THE WRITERS OF THE CONCURRING
OPINIONS BELIEVE THAT THE CITY IS "LOCKED IN" AND MUST OPERATE THE
POOLS NO MATTER WHAT THE ECONOMIC CONSEQUENCES.  CERTAINLY, I AM NOT
BOUND BY ANY ADMISSION OF AN ATTORNEY AT ORAL ARGUMENT AS TO HIS
VERSION OF THE LAW.  EQUITY COURTS HAVE ALWAYS HAD CONTINUING
SUPERVISORY POWERS OVER THEIR DECREES; AND IF A PROPER BASIS FOR
CLOSING THE FACILITIES-- OTHER THAN A CONCLUSORY STATEMENT ABOUT THE
PROJECTED HUMAN AND THUS ECONOMIC CONSEQUENCES OF DESEGREGATION-- COULD
BE SHOWN, SWIMMING POOLS, AS I IMAGINE SCHOOLS OR EVEN GOLF COURSES,
COULD BE CLOSED. 

I DISSENT. 

/1/  THE ECONOMIC LOSS INCIDENT TO THE OPERATION OF PUBLIC SWIMMING
POOLS COULD NOT BE MUCH MORE THAN THAT INCIDENT TO MAINTAINING PUBLIC
GOLF COURSES THAT CHARGE GREEN FEES OF $0.75 TO $1.25, ADMITTEDLY THE
LOWEST IN THE COUNTRY. 

PAUL A. ROSEN AND WILLIAM M. KUNSTLER ARGUED THE CAUSE FOR
PETITIONERS.  WITH PETITIONERS.  WITH THEM ON THE BRIEFS WERE ERNEST
GOODMAN AND ARTHUR KINOY. 

WILLIAM F. GOODMAN, JR., ARGUED THE CAUSE FOR RESPONDENTS.  ON THE
BRIEF WERE JOHN E. STONE, THOMAS H. WATKINS, AND ELIZABETH W. GRAYSON. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL LEONARD, AND DEPUTY
SOLICITOR GENERAL WALLACE FOR THE UNITED STATES, AND BY ARMAND DERFNER
FOR JAMES MOORE ET AL.
..END :







MOTOR COACH EMPLOYEES V. LOCKRIDGE, 403 U.S. 274 


       AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR

           COACH EMPLOYEES OF AMERICA ET AL. V. LOCKRIDGE

        CERTIORARI TO THE SUPREME COURT OF IDAHO

        NO. 76.  ARGUED DECEMBER 15, 1970-- DECIDED JUNE 14, 1971 


RESPONDENT, WHO HAD BEEN DISCHARGED FROM EMPLOYMENT ON THE GROUND
THAT HE HAD FORFEITED HIS GOOD STANDING MEMBERSHIP IN PETITIONER UNION
BY DUES ARREARAGE AND WAS THEREFORE SUBJECT TO TERMINATION UNDER THE
UNION SECURITY CLAUSE IN THE APPLICABLE COLLECTIVE-BARGAINING
AGREEMENT, BROUGHT SUIT IN THE STATE COURT AGAINST THE UNION AND THE
EMPLOYER (WHICH WAS LATER DROPPED AS A PARTY).  THE TWO-COUNT COMPLAINT
CHARGED (1) THAT THE UNION IN SUSPENDING RESPONDENT FROM MEMBERSHIP,
WHICH RESULTED IN HIS LOSS OF EMPLOYMENT, ACTED WRONGFULLY AND DEPRIVED
RESPONDENT OF THE EMPLOYMENT WITH HIS EMPLOYER THAT ACCRUED TO HIM AND
WOULD ACCRUE TO HIM BY REASON OF HIS EMPLOYMENT, SENIORITY, AND
EXPERIENCE, AND (2) THAT BY THE SUSPENSION IN VIOLATION OF THE UNION'S
CONSTITUTION AND GENERAL LAWS (WHICH CONSTITUTED A CONTRACT BETWEEN
RESPONDENT AS A UNION MEMBER AND THE UNION) THE UNION HAD BREACHED ITS
CONTRACT WITH RESPONDENT.  THE TRIAL COURT, REJECTING THE UNION'S
CONTENTION THAT THE COMPLAINT CHARGED THE COMMISSION OF AN UNFAIR LABOR
PRACTICE WITHIN THE EXCLUSIVE JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD (NLRB), HELD THAT IT HAD JURISDICTION UNDER MACHINISTS
V. GONZALES, 356 U.S. 617, CONCLUDED THAT THERE HAD BEEN A BREACH OF
CONTRACT, FOR WHICH IT AWARDED MONEY DAMAGES FOR LOST WAGES, AND
ORDERED RESPONDENT RESTORED TO UNION MEMBERSHIP.  THE IDAHO SUPREME
COURT, WHICH ALSO ORDERED RESPONDENT'S SENIORITY RIGHTS RESTORED,
AFFIRMED BY A DIVIDED VOTE, CONCLUDING THAT, ALTHOUGH THE UNION'S
CONDUCT "DID MOST CERTAINLY" VIOLATE SECS. 8(B)(1)(A) AND 8(B)(2) OF
THE NATIONAL LABOR RELATIONS ACT AND "PROBABLY CAUSED THE EMPLOYER TO
VIOLATE SEC. 8(A)(3)," THE STATE COURTS HAD JURISDICTION BECAUSE THE
COMPLAINT CHARGED A BREACH OF CONTRACT RATHER THAN AN UNFAIR LABOR
PRACTICE; STATE COURTS IN INTERPRETING CONTRACT TERMS DEAL WITH
DIFFERENT CONDUCT THAN WOULD THE NLRB IN DECIDING WHETHER A UNION IS
DISCRIMINATING AGAINST A MEMBER; AND GONZALES, SUPRA, CONSTITUTES AN
EXCEPTION THAT PERMITS STATE COURTS TO EXERCISE JURISDICTION IN A CASE
LIKE THIS.  HELD: 

1.  RESPONDENT'S COMPLAINT THAT THE UNION HAD WRONGFULLY INTERFERED
WITH HIS EMPLOYMENT RELATION INVOLVED A MATTER THAT WAS ARGUABLY
PROTECTED BY SEC. 7 OR PROHIBITED BY SEC. 8 OF THE NATIONAL LABOR
RELATIONS ACT AND THUS WAS WITHIN THE EXCLUSIVE JURISDICTION OF THE
NLRB.  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236.  PP.
285-291. 

2.  THE REASONS RELIED ON FOR THE ASSUMPTION OF STATE COURT
JURISDICTION IN THIS CASE DO NOT SUFFICE TO OVERCOME THE FACTORS ON
WHICH THE PRE-EMPTION DOCTRINE OF GARMON WAS PREDICATED, VIZ., THE
CONGRESSIONAL PURPOSE FOR EFFECTUATING A COMPREHENSIVE NATIONAL LABOR
POLICY TO BE ADMINISTERED BY AN EXPERT CENTRAL AGENCY RATHER THAN BY A
FEDERALIZED JUDICIAL SYSTEM; THE NECESSITY FOR CARRYING OUT THAT LABOR
POLICY WITHOUT SPECIFIC CONGRESSIONAL DIRECTION OR JUDICIAL RESOLUTION
ON A CASE-BY-CASE BASIS; AND THE AVOIDANCE OF DIFFERENT TREATMENT OF
THE JUDICIAL POWER TO DEAL WITH CONDUCT THAT THE ACT PROTECTS FROM THAT
WHICH THE ACT PROHIBITS.  PP. 285-297. 

(A) SINCE PRE-EMPTION IS DESIGNED TO SHIELD THE SYSTEM FROM
CONFLICTING REGULATION OF CONDUCT, THE FORMAL DESCRIPTION OF THAT
CONDUCT (HERE THE CHARACTERIZATION THAT A BREACH OF CONTRACT WAS
INVOLVED) IS IMMATERIAL.  PP. 291-292. 

(B) SINCE THE CONDUCT HERE WAS ARGUABLY PROTECTED BY SEC. 7 OR
PROHIBITED BY SEC. 8 OF THE ACT, THE SUBSTANTIAL INTERESTS SOUGHT TO BE
PROTECTED BY THE PRE-EMPTION DOCTRINE ARE DIRECTLY INVOLVED, AND THE
FACT THAT THE UNION MAY HAVE MISCONSTRUED ITS OWN RULES IN THIS CASE
WOULD NOT BE TREATED BY THE NLRB AS A DEFENSE TO A CLAIMED VIOLATION OF
SEC. 8(B)(2).  PP. 292-293. 

(C) THE GONZALES CASE "WAS FOCUSED ON PURELY INTERNAL UNION MATTERS"
AND THE STATE COURTS ONLY HAD TO CONSIDER THE UNION'S CONSTITUTION AND
BYLAWS, WHEREAS RESPONDENT'S CASE TURNED ON THE CONSTRUCTION OF THE
APPLICABLE UNION SECURITY CLAUSE, AS TO WHICH FEDERAL CONCERN IS
PERVASIVE AND ITS REGULATION COMPLEX.  PP. 293-297. 

3.  RESPONDENT'S CONTENTION THAT HIS ACTION IS EXCEPTED FROM THE
GARMON PRINCIPLE AS BEING A SUIT FOR THE ENFORCEMENT OF A COLLECTIVE
BARGAINING AGREEMENT IS WITHOUT MERIT SINCE RESPONDENT SPECIFICALLY
DROPPED THE EMPLOYER AS A DEFENDANT, AS IS HIS ALTERNATIVE CONTENTION
THAT HIS SUIT IS ESSENTIALLY ONE TO REDRESS THE UNION'S BREACH OF ITS
DUTY OF FAIR REPRESENTATION, FOR TO SUSTAIN SUCH A CLAIM RESPONDENT
WOULD HAVE TO PROVE "ARBITRARY OR BAD FAITH CONDUCT ON THE PART OF THE
UNION," WHEREAS THE IDAHO SUPREME COURT FOUND ONLY THAT THE UNION HAD
MISINTERPRETED THE CONTRACT.  PP. 298-301. 

93 IDAHO 294, 460 P.2D 719, REVERSED. 

HARLAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BLACK,
BRENNAN, STEWART, AND MARSHALL, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST., P. 302.  WHITE, J., FILED A DISSENTING
OPINION, IN WHICH BURGER, C. J., JOINED, POST, P. 309.  BLACKMUN, J.,
FILED A DISSENTING STATEMENT, POST, P. 332. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959),
ESTABLISHED THE GENERAL PRINCIPLE THAT THE NATIONAL LABOR RELATIONS ACT
PRE-EMPTS STATE AND FEDERAL COURT JURISDICTION TO REMEDY CONDUCT THAT
IS ARGUABLY PROTECTED OR PROHIBITED BY THE ACT.  THAT DECISION
REPRESENTS THE WATERSHED IN THIS COURT'S CONTINUING EFFORT TO MARK THE
EXTENT TO WHICH THE MAINTENANCE OF A GENERAL FEDERAL LAW OF LABOR
RELATIONS COMBINED WITH A CENTRALIZED ADMINISTRATIVE AGENCY TO
IMPLEMENT ITS PROVISIONS NECESSARILY SUPPLANTS THE OPERATION OF THE
MORE TRADITIONAL LEGAL PROCESSES IN THIS FIELD.  WE GRANTED CERTIORARI
IN THIS CASE, 397 U.S. 1006 (1970), BECAUSE THE DIVIDED DECISION OF THE
IDAHO SUPREME COURT DEMONSTRATED THE NEED FOR THIS COURT TO PROVIDE A
FULLER EXPLICATION OF THE PREMISES UPON WHICH GARMON RESTS AND TO
CONSIDER THE EXTENT TO WHICH THAT DECISION MUST BE TAKEN TO HAVE
MODIFIED OR SUPERSEDED THIS COURT'S EARLIER EFFORTS TO TREAT WITH THE
KNOTTY PRE-EMPTION PROBLEM. 

        I 

RESPONDENT, WILSON P. LOCKRIDGE, HAS OBTAINED IN THE IDAHO COURTS A
JUDGMENT FOR $32,678.56 AGAINST PETITIONERS, NORTHWEST DIVISION 1055 OF
THE AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH
EMPLOYEES OF AMERICA AND ITS PARENT INTERNATIONAL ASSOCIATION, /1/  ON
THE GROUNDS THAT, IN PROCURING LOCKRIDGE'S DISCHARGE FROM EMPLOYMENT,
PURSUANT TO A VALID UNION SECURITY CLAUSE IN THE APPLICABLE COLLECTIVE
BARGAINING AGREEMENT, THE UNION BREACHED A CONTRACTUAL OBLIGATION
EMBODIED IN THE UNION'S CONSTITUTION AND BYLAWS. 

FROM MAY 1943 UNTIL NOVEMBER 2, 1959, LOCKRIDGE WAS A MEMBER OF
PETITIONER UNION AND EMPLOYED WITHIN THE STATE OF IDAHO AS A BUS DRIVER
FOR WESTERN GREYHOUND LINES, OR ITS PREDECESSOR.  AT THE TIME OF
LOCKRIDGE'S DISMISSAL FROM THE UNION, SEC. 3(A) OF THE COLLECTIVE
BARGAINING AGREEMENT IN EFFECT BETWEEN THE UNION AND GREYHOUND
PROVIDED: 

"ALL PRESENT EMPLOYEES COVERED BY THIS CONTRACT SHALL BECOME MEMBERS
OF THE ASSOCIATION (UNION) NOT LATER THAN THIRTY (30) DAYS FOLLOWING
ITS EFFECTIVE DATE AND SHALL REMAIN MEMBERS AS A CONDITION PRECEDENT TO
CONTINUED EMPLOYMENT.  THIS SECTION SHALL APPLY TO NEWLY HIRED
EMPLOYEES THIRTY (30) DAYS FROM THE DATE OF THEIR EMPLOYMENT WITH THE
COMPANY."  APP. 88.  IN ADDITION, SEC. 91 OF THE UNION'S CONSTITUTION
AND GENERAL LAWS PROVIDED, IN PERTINENT PART, THAT:

"ALL DUES . . . OF THE MEMBERS OF THIS ASSOCIATION ARE DUE AND
PAYABLE ON THE FIRST DAY OF EACH MONTH FOR THAT MONTH . . . . THEY MUST
BE PAID BY THE FIFTEENTH OF THE MONTH IN ORDER TO CONTINUE THE MEMBER
IN GOOD STANDING . . . . A MEMBER IN ARREARS FOR HIS DUES . . . AFTER
THE FIFTEENTH DAY OF THE MONTH IS NOT IN GOOD STANDING . . . AND WHERE
A MEMBER ALLOWS HIS ARREARAGE . . . TO RUN INTO THE SECOND MONTH BEFORE
PAYING THE SAME, HE SHALL BE DEBARRED FROM BENEFITS FOR ONE MONTH AFTER
PAYMENT.  WHERE A MEMBER ALLOWS HIS ARREARAGE . . . TO RUN OVER THE
LAST DAY OF THE SECOND MONTH WITHOUT PAYMENT, HE DOES THEREBY SUSPEND
HIMSELF FROM MEMBERSHIP IN THIS ASSOCIATION . . . . WHERE AGREEMENTS
WITH EMPLOYING COMPANIES PROVIDE THAT MEMBERS MUST BE IN CONTINUOUS
GOOD FINANCIAL STANDING, THE MEMBER IN ARREARS ONE MONTH MAY BE
SUSPENDED FROM MEMBERSHIP AND REMOVED FROM EMPLOYMENT, IN COMPLIANCE
WITH THE TERMS OF THE AGREEMENT."  APP. 91-92. 

PRIOR TO SEPTEMBER 1959, LOCKRIDGE'S DUES HAD BEEN DEDUCTED FROM HIS
PAYCHECK BY GREYHOUND, PURSUANT TO A CHECKOFF ARRANGEMENT.  DURING THAT
YEAR, HOWEVER, LOCKRIDGE AND A FEW OTHER EMPLOYEES WERE RELEASED AT
THEIR REQUEST FROM THE CHECKOFF, AND THEREBY BECAME OBLIGATED TO PAY
THEIR DUES DIRECTLY TO THE UNION'S OFFICE IN PORTLAND, OREGON.  ON
NOVEMBER 2, 1959, C. A. BANKHEAD, THE TREASURER AND FINANCIAL SECRETARY
OF THE UNION LOCAL, SUSPENDED LOCKRIDGE FROM MEMBERSHIP ON THE SOLE
GROUND THAT SINCE RESPONDENT HAD NOT YET PAID HIS OCTOBER DUES HE WAS
THEREFORE IN ARREARS CONTRARY TO SEC. 91.  BANKHEAD SIMULTANEOUSLY
NOTIFIED GREYHOUND OF THIS DETERMINATION AND REQUESTED THAT LOCKRIDGE
BE REMOVED FROM EMPLOYMENT.  GREYHOUND PROMPTLY COMPLIED.  LOCKRIDGE'S
WIFE RECEIVED NOTICE OF THE SUSPENSION FROM MEMBERSHIP IN EARLY
NOVEMBER, WHILE HER HUSBAND WAS ON VACATION, AND ON NOVEMBER 10, 1959,
TENDERED BANKHEAD A CHECK TO COVER RESPONDENT'S DUES FOR OCTOBER AND
NOVEMBER, WHICH BANKHEAD REFUSED TO ACCEPT. 

THIS CHAIN OF EVENTS, COMBINED WITH THE DISPARITY BETWEEN THE ABOVE
QUOTED TERMS OF THE COLLECTIVE-BARGAINING AGREEMENT AND THE UNION
CONSTITUTION AND GENERAL LAWS, GENERATED THIS LAWSUIT.  LOCKRIDGE HAS
CONTENDED, AND THE IDAHO COURTS HAVE SO HELD, THAT BECAUSE HE WAS LESS
THAN TWO MONTHS BEHIND IN HIS PAYMENT OF DUES, RESPONDENT HAD NOT YET
"SUSPENDED HIMSELF FROM MEMBERSHIP" WITHIN THE MEANING OF THE UNION'S
RULES, BUT INSTEAD HAD MERELY CEASED TO BE A "MEMBER IN GOOD
STANDING."  AND, BECAUSE THE COLLECTIVE-BARGAINING AGREEMENT REQUIRED
ONLY THAT EMPLOYEES "REMAIN MEMBERS," THOSE COURTS HELD THAT NEITHER
THAT AGREEMENT NOR THE FINAL SENTENCE OF SEC. 91 JUSTIFIED THE UNION'S
ACTION IN PROCURING LOCKRIDGE'S DISCHARGE.  THEREFORE, THE IDAHO COURTS
HAVE HELD, LOCKRIDGE'S DISMISSAL VIOLATED A PROMISE, IMPLIED IN LAW,
THAT THE UNION WOULD NOT SEEK TERMINATION OF HIS EMPLOYMENT UNLESS HE
WAS SUFFICIENTLY DERELICT IN HIS DUES PAYMENTS TO SUBJECT HIM TO LOSS
OF HIS JOB UNDER THE TERMS OF THE APPLICABLE COLLECTIVE-BARGAINING
AGREEMENT. 

ALTHOUGH THE TRIAL COURT MADE NO FORMAL FINDINGS OF FACT ON THIS
SCORE, /2/  IT APPEARS LIKELY THAT THE UNION PROCURED LOCKRIDGE'S
DISMISSAL IN THE MISTAKEN BELIEF THAT THE APPLICABLE UNION SECURITY
AGREEMENT WITH GREYHOUND DID, IN FACT, REQUIRE EMPLOYEES TO REMAIN
MEMBERS IN GOOD STANDING AND THAT THE UNION INSISTED ON WHAT IT THOUGHT
WAS A TECHNICALLY VALID POSITION BECAUSE IT WAS PIQUED BY LOCKRIDGE'S
OBTAINING HIS RELEASE FROM THE CHECKOFF.  THE TRIAL COURT DID FIND
SPECIFICALLY THAT "ALMOST WITHOUT EXCEPTION"  IT HAD BEEN THE PAST
PRACTICE OF THIS LOCAL DIVISION OF THE UNION MERELY TO SUSPEND
DELINQUENT MEMBERS FROM SERVICE, RATHER THAN TO STRIP THEM OF
MEMBERSHIP, AND TO PUT THEM BACK TO WORK WITHOUT LOSS OF SENIORITY WHEN
THEIR DUES WERE PAID. 

LOCKRIDGE INITIALLY MADE SOME EFFORTS, WITH BANKHEAD'S ASSISTANCE,
TO OBTAIN REINSTATEMENT IN THE UNION BUT THESE PROVED UNSUCCESSFUL.  NO
CHARGES WERE FILED BEFORE THE NATIONAL LABOR RELATIONS BOARD.  /3/
INSTEAD, LOCKRIDGE FILED SUIT IN SPETEMBER 1960 IN THE IDAHO STATE
DISTRICT COURT AGAINST THE UNION AND GREYHOUND, WHICH WAS LATER DROPPED
AS A PARTY.  THAT COURT, ON THE UNION'S MOTION, DISMISSED THE COMPLAINT
IN APRIL 1961 ON THE GROUNDS THAT IT CHARGED THE UNION WITH THE
COMMISSION OF AN UNFAIR LABOR PRACTICE AND CONSEQUENTLY FELL WITHIN THE
EXCLUSIVE JURISDICTION OF THE NLRB.  A YEAR LATER, THE IDAHO SUPREME
COURT REVERSED, HOLDING THAT THE STATE COURTS HAD JURISDICTION UNDER
THIS COURT'S DECISION IN MACHINISTS V. GONZALES, 356 U.S. 617 (1958),
AND REMANDED FOR TRIAL ON THE MERITS.  LOCKRIDGE V. AMALGAMATED ASSN.
OF ST., EL. RY. & M.C. EMP., 84 IDAHO 201, 369 P.2D 1006 (1962). 

IN 1965 LOCKRIDGE FILED A SECOND AMENDED COMPLAINT WHICH HAS SINCE
SERVED AS THE BASIS FOR THIS LAWSUIT.  ITS FIRST COUNT ALLEGED THAT 

"IN SUSPENDING PLAINTIFF FROM MEMBERSHIP IN THE (UNION) WHICH
RESULTED IN PLAINTIFF'S LOSS OF EMPLOYMENT, THE (UNION) . . . ACTED
WANTONLY, WILFULLY AND WRONGFULLY AND WITHOUT JUST CAUSE, AND . . .
DEPRIVED PLAINTIFF OF HIS . . . EMPLOYMENT WITH GREYHOUND CORPORATION
THAT ACCRUED TO HIM AND WOULD ACCRUE TO HIM BY REASON OF HIS
EMPLOYMENT, SENIORITY AND EXPERIENCE, AND PLAINTIFF HAS BEEN HARASSED
AND SUBJECT TO MENTAL ANGUISH . . . ."  APP. 46-47.  COUNT TWO,
SOUNDING SQUARELY IN CONTRACT, ALLEGED THAT 

"IN WRONGFULLY SUSPENDING PLAINTIFF FROM MEMBERSHIP IN THE (UNION),
WHICH RESULTED IN PLAINTIFF'S DISCHARGE FROM EMPLOYMENT WITH THE
GREYHOUND CORPORATION, THE (UNION) . . . ACTED WRONGFULLY, WANTONLY,
WILFULLY AND MALICIOUSLY AND WITHOUT JUST CAUSE AND VIOLATED THE
CONSTITUTION AND GENERAL LAWS OF THE (UNION) WHICH CONSTITUTED A
CONTRACT BETWEEN THE PLAINTIFF AS A MEMBER THEREOF AND THE (UNION), AND
AS A RESULT OF SAID BREACH OF CONTRACT PLAINTIFF HAS BEEN DEPRIVED OF
HIS . . . EMPLOYMENT WITH . . . GREYHOUND CORPORATION . . . AND
PLAINTIFF HAS BEEN EMBARRASSED AND SUBJECTED TO MENTAL ANGUISH . . .
."  APP. 48.  THE COMPLAINT SOUGHT DAMAGES IN THE AMOUNT OF $212,000
"AND SUCH OTHER AND FURTHER RELIEF AS TO THE COURT MAY APPEAR MEET AND
EQUITABLE IN THE PREMISES."  IBID. 

AFTER TRIAL, THE IDAHO DISTRICT COURT FOUND THE FACTS AS STATED
ABOVE AND HELD THAT THEY DID, INDEED, AMOUNT TO A BREACH OF CONTRACT. 
THE COURT FELT ITSELF BOUND BY THE PRIOR DETERMINATION OF THE IDAHO
SUPREME COURT TO CONSIDER THAT IT MIGHT PROPERLY EXERCISE JURISDICTION
OVER THE CONTROVERSY AND TO "DECIDE (THE) CASE ON THE THEORIES OF"
MACHINISTS V. GONZALES, SUPRA.  CONSEQUENTLY, THE TRIAL JUDGE CONCLUDED
THAT LOCKRIDGE WAS ENTITLED TO A DECREE RESTORING HIM TO MEMBERSHIP IN
THE UNION, "ALTHOUGH PLAINTIFF HAS NEVER SOUGHT SUCH REMEDY." 
LOCKRIDGE WAS ALSO AWARDED $32,678.56 AS COMPENSATION FOR WAGES
ACTUALLY LOST DUE TO HIS DISMISSAL FROM GREYHOUND'S EMPLOY, BUT HIS
REQUESTS FOR FUTURE DAMAGES ARISING FROM CONTINUED LOSS OF EMPLOYMENT,
COMPENSATION FOR LOSS OF SENIORITY OR FRINGE BENEFITS, AND PUNITIVE
DAMAGES WERE ALL DENIED.  ON APPEAL THE IDAHO SUPREME COURT AFFIRMED,
OVER ONE DISSENTING VOTE, EXCEPT THAT IT ALSO ORDERED RESTORATION OF
RESPONDENT'S SENIORITY RIGHTS.  93 IDAHO 294, 460 P.2D 719 (1969). 
HAVING GRANTED CERTIORARI FOR THE REASONS STATED AT THE OUTSET OF THIS
OPINION, WE NOW REVERSE. 

        II

        A 

ON THE SURFACE, THIS MIGHT APPEAR TO BE A ROUTINE AND SIMPLE CASE. 
STAT. 141, 29 U.S.C. 158(B)(2), MAKES IT AN UNFAIR LABOR PRACTICE FOR A
UNION 

"TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN
EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3) . . . OR TO DISCRIMINATE
AGAINST AN EMPLOYEE WITH RESPECT TO WHOM MEMBERSHIP IN SUCH
ORGANIZATION HAS BEEN DENIED OR TERMINATED ON SOME GROUND OTHER THAN
HIS FAILURE TO TENDER THE PERIODIC DUES AND THE INITIATION FEES
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP."  SECTION 8(B)(1)(A), 29 U.S.C. 158(B)(1)(A), MAKES IT AN
UNFAIR LABOR PRACTICE FOR A UNION "TO RESTRAIN OR COERCE . . .
EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION 7," WHICH
INCLUDES THE RIGHT NOT ONLY "TO FORM, JOIN, OR ASSIST LABOR
ORGANIZATIONS" BUT ALSO "THE RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH
ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN
AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION
OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)."  61 STAT. 140, 29
U.S.C. 157.  SECTION 8(A)(3) MAKES IT AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER 

"BY DISCRIMINATION IN REGARD TO HIRE OR TENURE OF EMPLOYMENT . . .
TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION:
PROVIDED, THAT NOTHING IN THIS ACT . . . SHALL PRECLUDE AN EMPLOYER
FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION . . . TO REQUIRE AS
A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN ON OR AFTER THE THIRTIETH
DAY FOLLOWING THE BEGINNING OF SUCH EMPLOYMENT OR THE EFFECTIVE DATE OF
SUCH AGREEMENT, WHICHEVER IS THE LATER . . .:  PROVIDED FURTHER, THAT
NO EMPLOYER SHALL JUSTIFY ANY DISCRIMINATION AGAINST AN EMPLOYEE FOR
NONMEMBERSHIP IN A LABOR ORGANIZATION . . . IF HE HAS REASONABLE
GROUNDS FOR BELIEVING THAT MEMBERSHIP WAS DENIED OR TERMINATED FOR
REASONS OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE PERIODIC
DUES AND THE INITIATION FEES UNIFORMLY REQUIRED AS A CONDITION OF
ACQUIRING OR RETAINING MEMBERSHIP . . . ."  29 U.S.C. 158(A)(3). 

FURTHER, IN SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S.,AT
245, WE HELD THAT THE NATIONAL LABOR RELATIONS ACT PRE-EMPTS THE
JURISDICTION OF STATE AND FEDERAL COURTS TO REGULATE CONDUCT "ARGUABLY
SUBJECT TO SEC. 7 OR SEC. 8 OF THE ACT."  ON THEIR FACE, THE ABOVE
QUOTED PROVISIONS OF THE ACT AT LEAST ARGUABLY EITHER PERMIT OR FORBID
THE UNION CONDUCT DEALT WITH BY THE JUDGMENT BELOW.  FOR THE EVIDENT
THRUST OF THIS ASPECT OF THE FEDERAL STATUTORY SCHEME IS TO PERMIT THE
ENFORCEMENT OF UNION SECURITY CLAUSES, BY DISMISSAL FROM EMPLOYMENT,
ONLY FOR FAILURE TO PAY DUES.  WHATEVER OTHER SANCTIONS MAY BE EMPLOYED
TO EXACT COMPLIANCE WITH THOSE INTERNAL UNION RULES UNRELATED TO DUES
PAYMENT, THE ACT SEEMS GENERALLY TO EXCLUDE DISMISSAL FROM EMPLOYMENT. 
SEE RADIO OFFICERS' UNION V. NLRB, 347 U.S. 17 (1954).  INDEED, IN THE
COURSE OF REJECTING PETITIONER'S PRE-EMPTION ARGUMENT, THE IDAHO
SUPREME COURT STATED THAT, IN ITS OPINION, THE UNION "DID MOST
CERTAINLY VIOLATE 8(B)(1)(A), DID MOST CERTAINLY VIOLATE 8(B)(2) . . .
AND PROBABLY CAUSED THE EMPLOYER TO VIOLATE 8(A)(3)."  93 IDAHO,AT 299,
460 P.2D,AT 724.  THUS, GIVEN THE BROAD PRE-EMPTION PRINCIPLE
ENUNCIATED IN GARMON, THE WANT OF STATE COURT POWER TO RESOLVE
LOCKRIDGE'S COMPLAINT MIGHT WELL SEEM TO FOLLOW AS A MATTER OF COURSE. 
THE IDAHO SUPREME COURT, HOWEVER, CONCLUDED THAT IT NEVERTHELESS
POSSESSED JURISDICTION IN THESE CIRCUMSTANCES.  THAT DETERMINATION, AS
WE UNDERSTAND IT, RESTED UPON THREE SEPARATE PROPOSITIONS, ALL OF WHICH
ARE URGED HERE BY RESPONDENT.  THE FIRST IS THAT THE UNION'S CONDUCT
WAS NOT ONLY AN UNFAIR LABOR PRACTICE, BUT A BREACH OF ITS CONTRACT
WITH LOCKRIDGE AS WELL.  "PRE-EMPTION IS NOT ESTABLISHED SIMPLY BY
SHOWING THAT THE SAME FACTS WILL SUSTAIN TWO DIFFERENT LEGAL WRONGS." 
93 IDAHO,AT 300, 460 P.2D,AT 725.  IN OTHER WORDS GARMON, THE STATE
COURT AND RESPONDENT ASSERT, STATES A PRINCIPLE APPLICABLE ONLY WHERE
THE STATE LAW INVOKED IS DESIGNED SPECIFICALLY TO REGULATE LABOR
RELATIONS; IT HAS NO FORCE WHERE THE STATE APPLIES ITS GENERAL COMMON
LAW OF CONTRACTS TO RESOLVE DISPUTES BETWEEN A UNION AND ITS MEMBERS. 
SECONDLY, IT IS URGED THAT THE FACTS THAT MIGHT BE SHOWN TO VINDICATE
LOCKRIDGE'S CLAIM IN THE IDAHO STATE COURTS DIFFER FROM THOSE RELEVANT
TO PROCEEDINGS GOVERNED BY THE NATIONAL LABOR RELATIONS ACT.  IT IS
SAID THAT THE CONDUCT REGULATED BY THE ACT IS UNION AND EMPLOYER
DISCRIMINATION; GENERAL CONTRACT LAW TAKES INTO ACCOUNT ONLY THE
CORRECTNESS OF COMPETING INTERPRETATIONS OF THE LANGUAGE EMBODIED IN
AGREEMENTS.  93 IDAHO,AT 303-304, 460 P.2D,AT 728-729.  FINALLY, THERE
RECURS THROUGHOUT THE STATE COURT OPINION, AND THE ARGUMENTS OF
RESPONDENT HERE, THE THEME THAT THE FACTS OF THE INSTANT CASE RENDER IT
VIRTUALLY INDISTINGUISHABLE FROM MACHINISTS V. GONZALES, 356 U.S. 617
(1958), WHERE THIS COURT UPHELD THE EXERCISE OF STATE COURT
JURISDICTION IN AN OPINION WRITTEN ONLY ONE TERM PRIOR TO GARMON, BY
THE AUTHOR OF GARMON AND WHICH WAS APPROVINGLY CITED IN THE GARMON
OPINION ITSELF. 

WE DO NOT BELIEVE THAT ANY OF THESE ARGUMENTS SUFFICE TO OVERCOME
THE PLAIN PURPORT OF GARMON AS APPLIED TO THE FACTS OF THIS CASE. 
HOWEVER, WE HAVE DETERMINED TO TREAT THESE CONSIDERATIONS AT SOME
LENGTH BECAUSE OF THE UNDERSTANDABLE CONFUSION, PERHAPS IN A MEASURE
ATTRIBUTABLE TO THE PREVIOUS OPINIONS OF THIS COURT, THEY REFLECT OVER
THE JURISPRUDENTIAL BASES UPON WHICH THE GARMON DOCTRINE RESTS. 

    B 

THE CONSTITUTIONAL PRINCIPLES OF PRE-EMPTION, IN WHATEVER PARTICULAR
FIELD OF LAW THEY OPERATE, ARE DESIGNED WITH A COMMON END IN VIEW:  TO
AVOID CONFLICTING REGULATION OF CONDUCT BY VARIOUS OFFICIAL BODIES
WHICH MIGHT HAVE SOME AUTHORITY OVER THE SUBJECT MATTER.  A FULL
UNDERSTANDING OF THE PARTICULAR PRE-EMPTION RULE SET FORTH IN GARMON
ESPECIALLY REQUIRES, WE THINK, APPRECIATION OF THE PRECISE NATURE AND
EXTENT OF THE POTENTIAL FOR INJURIOUS CONFLICT THAT WOULD INHERE IN A
SYSTEM UNAFFECTED BY SUCH A DOCTRINE, AND ALSO THE SETTING IN WHICH THE
GENERAL PROBLEM OF ACCOMMODATING CONFLICTING CLAIMS OF COMPETENCE TO
RESOLVE DISPUTES TOUCHING UPON LABOR RELATIONS HAS BEEN PRESENTED TO
THIS COURT. 

THE COURSE OF EVENTS THAT EVENTUATED IN THE ENACTMENT OF A
COMPREHENSIVE NATIONAL LABOR LAW, ENTRUSTED FOR ITS ADMINISTRATION AND
DEVELOPMENT TO A CENTRALIZED, EXPERT AGENCY, AS WELL AS THE VERY FACT
THAT ENACTMENT ITSELF, REVEALS THAT A PRIMARY FACTOR IN THIS
DEVELOPMENT WAS THE PERCEIVED INCAPACITY OF COMMON-LAW COURTS AND STATE
LEGISLATURES, ACTING ALONE, TO PROVIDE AN INFORMED AND COHERENT BASIS
FOR STABILIZING LABOR RELATIONS CONFLICT AND FOR EQUITABLY AND
DELICATELY STRUCTURING THE BALANCE OF POWER AMONG COMPETING FORCES SO
AS TO FURTHER THE COMMON GOOD.  /4/  THE PRINCIPLE OF PRE-EMPTION THAT
INFORMS OUR GENERAL NATIONAL LABOR LAW WAS BORN OF THIS COURT'S
EFFORTS, WITHOUT THE AID OF EXPLICIT CONGRESSIONAL GUIDANCE, TO DELIMIT
STATE AND FEDERAL JUDICIAL AUTHORITY OVER LABOR DISPUTES IN ORDER TO
PRECLUDE, SO FAR AS REASONABLY POSSIBLE, CONFLICT BETWEEN THE EXERTION
OF JUDICIAL AND ADMINISTRATIVE POWER IN THE ATTAINMENT OF THE
MULTIFACETED POLICIES UNDERLYING THE FEDERAL SCHEME. 

AS IT APPEARS TO US, NOTHING COULD SERVE MORE FULLY TO DEFEAT THE
CONGRESSIONAL GOALS UNDERLYING THE ACT THAN TO SUBJECT, WITHOUT
LIMITATION, THE RELATIONSHIPS IT SEEKS TO CREATE TO THE CONCURRENT
JURISDICTION OF STATE AND FEDERAL COURTS FREE TO APPLY THE GENERAL
LOCAL LAW.  NOR WOULD AN APPROACH SUFFICE THAT SOUGHT MERELY TO AVOID
DISPARITY IN THE CONTENT OF PROSCRIPTIVE BEHAVORIAL RULES.  AS THE
COURT OBSERVED IN GARNER V. TEAMSTERS UNION, 346 U.S. 485, 490-491
(1953), CONGRESS IN ESTABLISHING OVERRIDING FEDERAL SUPERVISION OF
LABOR LAW 

"DID NOT MERELY LAY DOWN A SUBSTANTIVE RULE OF LAW TO BE ENFORCED BY
ANY TRIBUNAL COMPETENT TO APPLY LAW GENERALLY TO THE PARTIES.  IT WENT
ON TO CONFIDE PRIMARY INTERPRETATION AND APPLICATION OF ITS RULES TO A
SPECIFIC AND SPECIALLY CONSTITUTED TRIBUNAL AND PRESCRIBED PARTICULAR
PROCEDURE FOR INVESTIGATION, COMPLAINT AND NOTICE, AND HEARING AND
DECISION . . . . CONGRESS EVIDENTLY CONSIDERED THAT CENTRALIZED
ADMINISTRATION OF SPECIALLY DESIGNED PROCEDURES WAS NECESSARY TO OBTAIN
UNIFORM APPLICATION OF ITS SUBSTANTIVE RULES AND TO AVOID THESE
DIVERSITIES AND CONFLICTS LIKELY TO RESULT FROM A VARIETY OF LOCAL
PROCEDURES AND ATTITUDES TOWARD LABOR CONTROVERSIES . . . . A
MULTIPLICITY OF TRIBUNALS AND A DIVERSITY OF PROCEDURES ARE QUITE AS
APT TO PRODUCE INCOMPATIBLE OR CONFLICTING ADJUDICATIONS AS ARE
DIFFERENT RULES OF SUBSTANTIVE LAW." 

CONFLICT IN TECHNIQUE CAN BE FULLY AS DISRUPTIVE TO THE SYSTEM
CONGRESS ERECTED AS CONFLICT IN OVERT POLICY.  AS THE PASSAGE FROM
GARNER INDICATES, IN MATTERS OF DISPUTE CONCERNING LABOR RELATIONS A
SIMPLE RECITATION OF THE FORMALLY PRESCRIBED RIGHTS AND DUTIES OF THE
PARTIES CONSTITUTES AN INADEQUATE DESCRIPTION OF THE ACTUAL PROCESS FOR
SETTLEMENT CONGRESS HAS PROVIDED.  THE TECHNIQUE OF ADMINISTRATION AND
THE RANGE AND NATURE OF THOSE REMEDIES THAT ARE AND ARE NOT AVAILABLE
IS A FUNDAMENTAL PART AND PARCEL OF THE OPERATIVE LEGAL SYSTEM
ESTABLISHED BY THE NATIONAL LABOR RELATIONS ACT.  "ADMINISTRATION IS
MORE THAN A MEANS OF REGULATION; ADMINISTRATION IS REGULATION.  WE HAVE
BEEN CONCERNED WITH CONFLICT IN ITS BROADEST SENSE; CONFLICT WITH A
COMPLEX AND INTERRELATED FEDERAL SCHEME OF LAW, REMEDY, AND
ADMINISTRATION."  GARMON, 359 U.S.,AT 243. 

THE RATIONALE FOR PRE-EMPTION, THEN, RESTS IN LARGE MEASURE UPON OUR
DETERMINATION THAT WHEN IT SET DOWN A FEDERAL LABOR POLICY CONGRESS
PLAINLY MEANT TO DO MORE THAN SIMPLY TO ALTER THE THEN-PREVAILING
SUBSTANTIVE LAW.  IT SOUGHT AS WELL TO RESTRUCTURE FUNDAMENTALLY THE
PROCESSES FOR EFFECTUATING THAT POLICY, DELIBERATELY PLACING THE
RESPONSIBILITY FOR APPLYING AND DEVELOPING THIS COMPREHENSIVE LEGAL
SYSTEM IN THE HANDS OF AN EXPERT ADMINISTRATIVE BODY RATHER THAN THE
FEDERALIZED JUDICIAL SYSTEM.  /5/  THUS, THAT A LOCAL COURT, WHILE
ADJUDICATING A LABOR DISPUTE ALSO WITHIN THE JURISDICTION OF THE NLRB,
MAY PURPORT TO APPLY LEGAL RULES IDENTICAL TO THOSE PRESCRIBED IN THE
FEDERAL ACT OR MAY ESCHEW THE AUTHORITY TO DEFINE OR APPLY PRINCIPLES
SPECIFICALLY DEVELOPED TO REGULATE LABOR RELATIONS DOES NOT MEAN THAT
ALL RELEVANT POTENTIAL FOR DEBILITATING CONFLICT IS ABSENT. 

A SECOND FACTOR THAT HAS PLAYED AN IMPORTANT ROLE IN OUR SHAPING OF
THE PRE-EMPTION DOCTRINE HAS BEEN THE NECESSITY TO ACT WITHOUT SPECIFIC
CONGRESSIONAL DIRECTION.  THE PRECISE EXTENT TO WHICH STATE LAW MUST BE
DISPLACED TO ACHEIVE THOSE UNIFYING ENDS SOUGHT BY THE NATIONAL
LEGISLATURE HAS NEVER BEEN DETERMINED BY THE CONGRESS.  THIS HAS, QUITE
FRANKLY, LEFT THE COURT WITH FEW AVAILABLE OPTIONS.  WE CANNOT DECLARE
PRE-EMPTED ALL LOCAL REGULATION THAT TOUCHES OR CONCERNS IN ANY WAY THE
COMPLEX INTERRELATIONSHIPS BETWEEN EMPLOYEES, EMPLOYERS, AND UNIONS;
OBVIOUSLY, MUCH OF THIS IS LEFT TO THE STATES.  NOR CAN WE PROCEED ON A
CASE-BY-CASE BASIS TO DETERMINE WHETHER EACH PARTICULAR FINAL JUDICIAL
PRONOUNCEMENT DOES, OR MIGHT REASONABLY BE THOUGHT TO, CONFLICT IN SOME
RELEVANT MANNER WITH FEDERAL LABOR POLICY.  THIS COURT IS ILL-EQUIPPED
TO PLAY SUCH A ROLE AND THE FEDERAL SYSTEM DICTATES THAT THIS PROBLEM
BE SOLVED WITH A RULE CAPABLE OF RELATIVELY EASY APPLICATION, SO THAT
LOWER COURTS MAY LARGELY POLICY THEMSELVES IN THIS REGARD.  EQUALLY
IMPORTANT, SUCH A PRINCIPLE WOULD FAIL TO TAKE ACCOUNT OF THE FACT, AS
DISCUSSED ABOVE, THAT SIMPLE CONGRUITY OF LEGAL RULES DOES NOT, IN THIS
AREA, PROVE THE ABSENCE OF UNTENABLE CONFLICT.  FURTHER, IT IS SURELY
NOT POSSIBLE FOR THIS COURT TO TREAT THE NATIONAL LABOR RELATIONS ACT
WHOLLY TO THE NLRB AND OTHERS TO THE CONCURRENT DOMAIN OF LOCAL LAW. 
NOTHING IN THE LANGUAGE OR UNDERLYING PURPOSES OF THE ACT SUGGESTS ANY
BASIS FOR SUCH DISTINCTIONS.  FINALLY, TREATING DIFFERENTLY JUDICIAL
POWER TO DEAL WITH CONDUCT PROTECTED BY THE ACT FROM THAT PROHIBITED BY
IT WOULD LIKEWISE BE UNSATISFACTORY.  /6/  BOTH AREAS EQUALLY INVOLVE
CONDUCT WHOSE LEGALITY IS GOVERNED BY FEDERAL LAW, THE APPLICATION OF
WHICH CONGRESS COMMITTED TO THE BOARD, NOT COURTS. 

THIS IS NOT TO SAY, HOWEVER, THAT THESE INHERENT LIMITATIONS ON THIS
COURT'S ABILITY TO STATE A WORKABLE RULE THAT COMPORTS REASONABLY WITH
APPARENT CONGRESSIONAL OBJECTIVES ARE NECESSARILY SELF-EVIDENT.  IN
FACT, VARYING APPROACHES WERE TAKEN BY THE COURT IN INITIALLY GRAPPLING
WITH THIS PRE-EMPTION PROBLEM.  THUS, FOR EXAMPLE, SOME EARLY CASES
SUGGESTED THE TRUE DISTINCTION LAY BETWEEN JUDICIAL APPLICATION OF
GENERAL COMMON LAW, WHICH WAS PERMISSIBLE, AS OPPOSED TO STATE RULES
SPECIFICALLY DESIGNED TO REGULATE LABOR RELATIONS, WHICH WERE PRE
EMPTED.  SEE, E.G., AUTOMOBILE WORKERS V. RUSSELL, 356 U.S. 634, 645
(1958).  OTHERS MADE PRE-EMPTION TURN ON WHETHER THE STATES PURPORTED
TO APPLY A REMEDY NOT PROVIDED FOR BY THE FEDERAL SCHEME, E.G., WEBER
V. ANHEUSER-BUSCH, INC., 348 U.S. 468, 479-480 (1955), WHILE IN STILL
OTHERS THE COURT UNDERTOOD A THOROUGH SCRUTINY OF THE FEDERAL ACT TO
ASCERTAIN WHETHER THE STATE COURTS HAD, IN FACT, ARRIVED AT CONCLUSIONS
INCONSISTENT WITH ITS PROVISIONS, E.G., AUTOMOBILE WORKERS V. WISCONSIN
EMPLOYMENT RELATIONS BD., 336 U.S. 245 (1949).  FOR THE REASONS
OUTLINED ABOVE NONE OF THESE APPROACHES PROVED SATISFACTORY, HOWEVER,
AND EACH WAS ULTIMATELY ABANDONED.  IT WAS, IN SHORT, EXPERIENCE-- NOT
PURE LOGIC-- WHICH INITIALLY TAUGHT THAT EACH OF THESE METHODS
SACRIFICED IMPORTANT FEDERAL INTERESTS IN A UNIFORM LAW OF LABOR
RELATIONS CENTRALLY ADMINISTERED BY AN EXPERT AGENCY WITHOUT YIELDING
ANYTHING IN RETURN BY WAY OF PREDICTABILITY OR EASE OF JUDICIAL
APPLICATION. 

THE FAILURE OF ALTERNATIVE ANALYSES AND THE INTERPLAY OF THE
FOREGOING POLICY CONSIDERATIONS, THEN, LED THIS COURT TO HOLD IN
GARMON, 359 U.S.,AT 244: 

    "WHEN IT IS CLEAR OR MAY FAIRLY BE ASSUMED THAT THE ACTIVITIES

  WHICH A STATE PURPORTS TO REGULATE ARE PROTECTED BY SEC. 7 OF THE

  NATIONAL LABOR RELATIONS ACT, OR CONSTITUTE AN UNFAIR LABOR

  PRACTICE UNDER SEC. 8, DUE REGARD FOR THE FEDERAL ENACTMENT

  REQUIRES THAT STATE JURISDICTION MUST YIELD.  TO LEAVE THE STATES

  FREE TO REGULATE CONDUCT SO PLAINLY WITHIN THE CENTRAL AIM OF

  FEDERAL REGULATION INVOLVES TOO GREAT A DANGER OF CONFLICT

  BETWEEN POWER ASSERTED BY CONGRESS AND REQUIREMENTS IMPOSED BY

  STATE LAW." 

        C 

UPON THESE PREMISES, WE THINK THAT GARMON RATHER CLEARLY DICTATES
REVERSAL OF THE JUDGMENT BELOW.  NONE OF THE PROPOSITIONS ASSERTED TO
SUPPORT THAT JUDGMENT CAN WITHSTAND AN APPLICATION, IN LIGHT OF THOSE
FACTORS THAT COMPELLED ITS PROMULGATION, OF THE GARMON RULE. 

ASSUREDLY THE PROPOSITION THAT LOCKRIDGE'S COMPLAINT WAS NOT SUBJECT
TO THE EXCLUSIVE JURISDICTION OF THE NLRB BECAUSE IT CHARGED A BREACH
OF CONTRACT RATHER THAN AN UNFAIR LABOR PRACTICE IS NOT TENABLE.  PRE
EMPTION, AS SHOWN ABOVE, IS DESIGNED TO SHIELD THE SYSTEM FROM
CONFLICTING REGULATION OF CONDUCT.  IT IS THE CONDUCT BEING REGULATED,
NOT THE FORMAL DESCRIPTION OF GOVERNING LEGAL STANDARDS, THAT IS THE
PROPER FOCUS OF CONCERN.  INDEED, THE NOTION THAT A RELEVANT
DISTINCTION EXISTS FOR SUCH PURPOSES BETWEEN PARTICULARIZED AND
GENERALIZED LABOR LAW WAS EXPLICITLY REJECTED IN GARMON ITSELF.  359
U.S.,AT 244. 

THE SECOND ARGUMENT, CLOSELY RELATED TO THE FIRST, IS THAT THE STATE
COURTS, IN RESOLVING THIS CONTROVERSY, DID DEAL WITH DIFFERENT CONDUCT,
I.E., INTERPRETATION OF CONTRACTUAL TERMS, THAN WOULD THE NLRB WHICH
WOULD BE REQUIRED TO DECIDE WHETHER THE UNION DISCRIMINATED AGAINST
LOCKRIDGE.  AT BOTTOM, OF COURSE, THE UNION'S ACTION IN PROCURING
LOCKRIDGE'S DISMISSAL FROM EMPLOYMENT IS THE CONDUCT WHICH IDAHO COURTS
HAVE SOUGHT TO REGULATE.  THUS, THIS SECOND POINT DEMONSTRATES AT BEST
THAT IDAHO DEFINES DIFFERENTLY WHAT SORTS OF SUCH UNION CONDUCT MAY
PERMISSIBLY BE PROSCRIBED.  THIS IS TO SAY EITHER THAT THE REGULATORY
SCHEMES, STATE AND FEDERAL, CONFLICT (IN WHICH CASE PRE-EMPTION IS
CLEARLY CALLED FOR) OR THAT IDAHO IS DEALING WITH CONDUCT TO WHICH THE
FEDERAL ACT DOES NOT SPEAK.  IF THE LATTER ASSERTION WAS INTENDED, IT
IS NOT ACCURATE.  AS POINTED OUT IN PART II-A, SUPRA, THE RELEVANT
PORTIONS OF THE ACT OPERATE TO PROHIBIT A UNION FROM CAUSING OR
ATTEMPTING TO CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN EMPLOYEE
BECAUSE HIS MEMBERSHIP IN THE UNION HAS BEEN TERMINATED "ON SOME GROUND
OTHER THAN" HIS FAILURE TO PAY THOSE DUES REQUISITE TO MEMBERSHIP. 
THIS HAS LED THE BOARD ROUTINELY AND FREQUENTLY TO INQUIRE INTO THE
PROPER CONSTRUCTION OF UNION REGULATIONS IN ORDER TO ASCERTAIN WHETHER
THE UNION PROPERLY FOUND AN EMPLOYEE TO HAVE BEEN DERELICT IN HIS
DUESPAYING RESPONSIBILITIES, WHERE HIS DISCHARGE WAS PROCURED ON THE
ASSERTED GROUNDS OF NONMEMBERSHIP IN THE UNION.  SEE, E.G., NLRB V.
ALLIED INDEPENDENT UNION, 238 F.2D 120 (CA7 1956); NLRB V. LEECE
NEVILLE CO., 330 F.2D 242 (CA6 1964); COMMUNICATIONS WORKERS V. NLRB,
215 F.2D 835 (CA2 1954); NLRB V. SPECTOR FREIGHT SYSTEM, INC., 273 F.2D
272 (CA8 1960).  SEE GENERALLY 3 CCH LAB.  L. REP. PARA. 4525 (LABOR
RELATIONS).  THAT A UNION MAY IN GOOD FAITH HAVE MISCONSTRUED ITS OWN
RULES HAS NOT BEEN TREATED BY THE BOARD AS A DEFENSE TO A CLAIMED
VIOLATION OF SEC. 8(B)(2).  IN THE BOARD'S VIEW, IT IS THE FACT OF
MISAPPLICATION BY A UNION OF ITS RULES, NOT THE MOTIVATION FOR THAT
DISCRIMINATION, THAT CONSTITUTES AN UNFAIR LABOR PRACTICE.  SEE, IN
ADDITION TO THE AUTHORITIES CITED ABOVE, ELECTRICAL, RADIO & MACHINE
WORKERS V. NLRB, 113 U.S.APP.D.C. 342, 347, 307 F.2D 679, 684 (1962),
AND TEAMSTERS LOCAL V. NLRB, 365 U.S. 667, 681 (1961) (CONCURRING
OPINION).     FROM THE FOREGOING, THEN, IT WOULD SEEM THAT THIS CASE
INDEED REPRESENTS ONE OF THE CLEAREST INSTANCES WHERE THE GARMON
PRINCIPLE, PROPERLY UNDERSTOOD, SHOULD OPERATE TO OUST STATE COURT
JURISDICTION.  THERE BEING NO DOUBT THAT THE CONDUCT HERE INVOLVED WAS
ARGUABLY PROTECTED BY SEC. 7 OR PROHIBITED BY SEC. 8 OF THE ACT, THE
FULL RANGE OF VERY SUBSTANTIAL INTERESTS THE PRE-EMPTION DOCTRINE SEEKS
TO PROTECT IS DIRECTLY IMPLICATED HERE. 

HOWEVER, A FINAL STRAND OF ANALYSIS UNDERLIES THE OPINION OF THE
IDAHO SUPREME COURT, AND THE POSITION OF RESPONDENT, IN THIS CASE.  OUR
DECISION IN MACHINISTS V. GONZALES, 356 U.S. 617 (1958), IT IS ARGUED,
FULLY SURVIVED THE SUBSEQUENT REORIENTATION OF PRE-EMPTION DOCTRINE
EFFECTED BY THE GARMON DECISION, PROVIDING, IN EFFECT, AN EXPRESS
EXCEPTION FOR THE EXERCISE OF JUDICIAL JURISDICTION IN CASES SUCH AS
THIS. 

THE FACT SITUATION IN GONZALES DOES RESEMBLE IN SOME RELEVANT
REGARDS THAT OF THE INSTANT CASE.  THERE THE CALIFORNIA COURTS HAD
ENTERTAINED A COMPLAINT BY AN INDIVIDUAL UNION MEMBER CLAIMING HE HAD
BEEN EXPELLED FROM HIS UNION IN VIOLATION OF RIGHTS CONFERRED UPON HIM
BY THE UNION'S CONSTITUTION AND BYLAWS, WHICH ALLEGEDLY CONSTITUTED A
CONTRACT BETWEEN HIM AND HIS UNION.  GONZALES PREVAILED ON HIS BREACH
OF-CONTRACT THEORY AND WAS AWARDED DAMAGES FOR WAGES LOST DUE TO THE
REVOCATION OF MEMBERSHIP AS WELL AS A DECREE PROVIDING FOR HIS
REINSTATEMENT IN THE UNION.  THIS COURT CONFIRMED THE CALIFORNIA
COURTS' POWER TO AWARD THE MONETARY DAMAGES, THE ONLY ASPECT OF THE
ACTION BELOW CHALLENGED IN THIS COURT.  THE PRIMARY RATIONALE FOR THE
RESULT REACHED WAS THAT CALIFORNIA SHOULD BE COMPETENT TO "FILL OUT,"
356 U.S.,AT 620, THE REINSTATEMENT REMEDY BY UTILIZING "THE
COMPREHENSIVE RELIEF OF EQUITY," ID., AT 621, WHICH THE BOARD DID NOT
FULLY POSSESS.  SECONDARILY, IT WAS SAID THAT THE LAWSUIT "DID NOT
PURPORT TO REMEDY OR REGULATE UNION CONDUCT ON THE GROUND THAT IT WAS
DESIGNED TO BRING ABOUT EMPLOYER DISCRIMINATION AGAINST AN EMPLOYEE,
THE EVIL THE BOARD IS CONCERNED TO STRIKE AT AS AN UNFAIR LABOR
PRACTICE UNDER SEC. 8(B)(2)."  ID., AT 622. 

ALTHOUGH IT WAS DECIDED ONLY ONE TERM SUBSEQUENT TO GONZALES, GARMON
CLEARLY DID NOT FULLY EMBRACE THE TECHNIQUE OF THE PRIOR CASE.  IT WAS
PRECISELY THE REALIZATION THAT DISPARITIES IN REMEDIES AND
ADMINISTRATION COULD PRODUCE SUBSTANTIAL CONFLICT, IN THE PRACTICAL
SENSE OF THE TERM, BETWEEN THE RELEVANT STATE AND FEDERAL REGULATORY
SCHEMES AND THAT THIS COURT COULD NOT EFFECTIVELY AND RESPONSIBLY
SUPERINTEND ON A CASE-BY-CASE BASIS THE EXERTION OF STATE POWER OVER
MATTERS ARGUABLY GOVERNED BY THE NATIONAL LABOR RELATIONS ACT THAT
IMPELLED THE SOMEWHAT BROADER FORMULATION OF THE PRE-EMPTION DOCTRINE
IN GARMON.  IT SEEMS EVIDENT THAT THE FULL-BLOWN RATIONALE OF GONZALES
COULD NOT SURVIVE THE RULE OF GARMON.  NEVERTHELESS, GARMON DID NOT
CAST DOUBT UPON THE RESULT REACHED IN GONZALES, BUT CITED IT
APPROVINGLY AS AN EXAMPLE OF THE FACT THAT STATE COURT JURISDICTION IS
NOT PRE-EMPTED "WHERE THE ACTIVITY REGULATED WAS A MERELY PERIPHERAL
CONCERN OF THE . . . ACT."  359 U.S.,AT 243. 

AGAINST THIS BACKGROUND, WE ATTEMPTED TO DEFINE MORE PRECISELY THE
REACH OF GONZALES WITHIN THE MORE COMPREHENSIVE FRAMEWORK GARMON
PROVIDED IN THE COMPANION CASES OF PLUMBERS' UNION V. BORDEN, 373 U.S.
690 (1963), AND IRON WORKERS V. PERKO, 373 U.S. 701 (1963). 

BORDEN HAD SUED HIS UNION IN STATE COURTS, ALLEGING THAT THE UNION
HAD ARBITRARILY REFUSED TO REFER HIM TO A PARTICULAR JOB WHICH HE HAD
LINED UP.  HE RECOVERED DAMAGES, BASED ON LOST WAGES, ON THE GROUNDS
THAT THIS CONDUCT CONSTITUTED BOTH TORTIOUS INTERFERENCE WITH HIS RIGHT
TO CONTRACT FOR EMPLOYMENT AND A BREACH OF PROMISE, IMPLICIT IN HIS
MEMBERSHIP ARRANGEMENT WITH THE UNION, NOT TO DISCRIMINATE UNFAIRLY
AGAINST ANY MEMBER OR DENY HIM THE RIGHT TO WORK.  PERKO HAD OBTAINED A
LARGE MONEY JUDGMENT IN THE OHIO COURTS ON PROOF THAT THE UNION HAD
CONSPIRED, WITHOUT CAUSE, TO DEPRIVE HIM OF EMPLOYMENT AS A FOREMAN BY
DEMANDING HIS DISCHARGE FROM ONE SUCH POSITION HE HAD HELD AND
REPRESENTING TO OTHERS THAT HIS FOREMAN'S RIGHTS HAD BEEN SUSPENDED. 
WE HELD BOTH PERKO'S AND BORDEN'S JUDGMENTS INCONSISTENT WITH THE
GARMON RULE ESSENTIALLY FOR THE SAME REASONS WE HAVE CONCLUDED THAT
LOCKRIDGE COULD NOT, CONSISTENTLY WITH THE GARMON DECISION, MAINTAIN
HIS LAWSUIT IN THE STATE COURTS.  WE FURTHER HELD THERE WAS NO
NECESSITY TO "CONSIDER THE PRESENT VITALITY OF (THE GONZALES) RATIONALE
IN THE LIGHT OF MORE RECENT DECISIONS," BECAUSE IN THOSE CASES, UNLIKE
GONZALES, "THE CRUX OF THE ACTIONS) . . . CONCERNED ALLEGED
INTERFERENCE WITH THE PLAINTIFF'S EXISTING OR PROSPECTIVE EMPLOYMENT
RELATIONS AND WAS NOT DIRECTED TO INTERNAL UNION MATTERS."  BECAUSE NO
SPECIFIC CLAIM FOR RESTORATION OF MEMBERSHIP RIGHTS HAD BEEN ADVANCED,
"THERE WAS NO PERMISSIBLE STATE REMEDY TO WHICH THE AWARD OF
CONSEQUENTIAL DAMAGES FOR LOSS OF EARNINGS MIGHT BE SUBORDINATED." 
PERKO, 373 U.S.,AT 705.  SEE ALSO BORDEN, 373 U.S.,AT 697. 

IN SUM, WHAT DISTINGUISHED GONZALES FROM BORDEN AND PERKO WAS THAT
THE FORMER LAWSUIT "WAS FOCUSED ON PURELY INTERNAL UNION MATTERS,"
BORDEN, SUPRA, AT 697, A SUBJECT THE NATIONAL LABOR RELATIONS ACT
LEAVES PRINCIPALLY TO OTHER PROCESSES OF LAW.  THE POSSIBILITY THAT, IN
DEFINING THE SCOPE OF THE UNION'S DUTY TO GONZALES, THE STATE COURTS
WOULD DIRECTLY AND CONSCIOUSLY IMPLICATE PRINCIPLES OF FEDERAL LAW WAS
AT BEST TANGENTIAL AND REMOTE.  IN THE INSTANT CASE, HOWEVER, THIS
POSSIBILITY WAS REAL AND IMMEDIATE.  TO ASSESS THE LEGALITY OF HIS
UNION'S CONDUCT TOWARD GONZALES THE CALIFORNIA COURTS NEEDED ONLY TO
FOCUS UPON THE UNION'S CONSTITUTION AND BY-LAWS.  HERE, HOWEVER,
LOCKRIDGE'S ENTIRE CASE TURNED UPON THE CONSTRUCTION OF THE APPLICABLE
UNION SECURITY CLAUSE, A MATTER AS TO WHICH, AS SHOWN ABOVE, FEDERAL
CONCERN IS PERVASIVE AND ITS REGULATION COMPLEX.  THE REASONS FOR
GONZALES' DEPRIVATION OF UNION MEMBERSHIP HAD NOTHING TO DO WITH
MATTERS OF EMPLOYMENT, WHILE LOCKRIDGE'S CAUSE OF ACTION AND CLAIM FOR
DAMAGES WERE BASED SOLELY UPON THE PROCUREMENT OF HIS DISCHARGE FROM
EMPLOYMENT.  IT CANNOT PLAUSIBLY BE ARGUED, IN ANY MEANINGFUL SENSE,
THAT LOCKRIDGE'S LAWSUIT "WAS FOCUSED ON PURELY INTERNAL UNION
MATTERS."  ALTHOUGH NOTHING SAID IN GARMON NECESSARILY SUGGESTS THAT
STATES CANNOT REGULATE THE GENERAL CONDITIONS WHICH UNIONS MAY IMPOSE
ON THEIR MEMBERSHIP, IT SURELY MAKES CRYSTAL CLEAR THAT GONZALES DOES
NOT STAND FOR THE PROPOSITION THAT RESOLUTION OF ANY UNION-MEMBER
CONFLICT IS WITHIN STATE COMPETENCE SO LONG AS ONE OF THE REMEDIES
PROVIDED IS RESTORATION OF UNION MEMBERSHIP.  THIS MUCH WAS SETTLED BY
BORDEN AND PERKO, AND IT IS ONLY UPON SUCH AN UNWARRANTABLY BROAD
INTERPRETATION OF GONZALES THAT THE JUDGMENT BELOW COULD BE SUSTAINED. 

        III 

THE PRE-EMPTION DOCTRINE WE APPLY TODAY IS, LIKE ANY OTHER
PURPOSEFULLY ADMINISTERED LEGAL PRINCIPLE, NOT WITHOUT EXCEPTION. 
THOSE SAME CONSIDERATIONS THAT UNDERLIE GARMON HAVE LED THIS COURT TO
PERMIT THE EXERCISE OF JUDICIAL POWER OVER CONDUCT ARGUABLY PROTECTED
OR PROHIBITED BY THE ACT WHERE CONGRESS HAS AFFIRMATIVELY INDICATED
THAT SUCH POWER SHOULD EXIST, SMITH V. EVENING NEWS ASSN., 371 U.S. 195
(1962); TEAMSTERS UNION V. MORTON, 377 U.S. 252 (1964), WHERE THIS
COURT CANNOT, IN SPITE OF THE FORCE OF THE POLICIES GARMON SEEKS TO
PROMOTE, CONSCIENTIOUSLY PRESUME THAT CONGRESS MEANT TO INTRUDE SO
DEEPLY INTO AREAS TRADITIONALLY LEFT TO LOCAL LAW, E.G., LINN V. PLANT
GUARD WORKERS, 383 U.S. 53 (1966); AUTOMOBILE WORKERS V. RUSSELL, 356
U.S. 634 (1958), /7/  AND WHERE THE PARTICULAR RULE OF LAW SOUGHT TO BE
INVOKED BEFORE ANOTHER TRIBUNAL IS SO STRUCTURED AND ADMINISTERED THAT,
IN VIRTUALLY ALL INSTANCES, IT IS SAFE TO PRESUME THAT JUDICIAL
SUPERVISION WILL NOT DISSERVE THE INTERESTS PROMOTED BY THE FEDERAL
LABOR STATUTES, VACA V. SIPES, 386 U.S. 171 (1967).  /8/ 

IN HIS BRIEF BEFORE THIS COURT, RESPONDENT HAS ARGUED FOR THE FIRST
TIME SINCE THIS LAWSUIT WAS STARTED THAT TWO OF THESE EXCEPTIONS TO THE
GARMON PRINCIPLE INDEPENDENTLY JUSTIFY THE IDAHO COURTS' EXERCISE OF
JURISDICTION OVER THIS CONTROVERSY.  FIRST, LOCKRIDGE CONTENDS THAT HIS
ACTION, PROPERLY VIEWED, IS ONE TO ENFORCE A COLLECTIVE-BARGAINING
AGREEMENT.  ALTERNATIVELY, HE ASSERTS THE SUIT, IN ESSENCE, WAS ONE TO
REDRESS PETITIONER'S BREACH OF ITS DUTY OF FAIR REPRESENTATION.  AS
WILL BE SEEN, THESE CONTENTIONS ARE SOMEWHAT INTERTWINED. 

IN SEC. 301 OF THE TAFT-HARTLEY ACT, 61 STAT. 156, CONGRESS
AUTHORIZED FEDERAL COURTS TO EXERCISE JURISDICTION OVER SUITS BROUGHT
TO ENFORCE COLLECTIVE-BARGAINING AGREEMENTS.  WE HAVE HELD THAT SUCH
ACTIONS ARE JUDICIALLY COGNIZABLE, EVEN WHERE THE CONDUCT ALLEGED WAS
ARGUABLY PROTECTED OR PROHIBITED BY THE NATIONAL LABOR RELATIONS ACT
BECAUSE THE HISTORY OF THE ENACTMENT OF SEC. 301 REVEALS THAT "CONGRESS
DELIBERATELY CHOSE TO LEAVE THE ENFORCEMENT OF COLLECTIVE AGREEMENTS
'TO THE USUAL PROCESSES OF THE LAW.'"  CHARLES DOWD BOX CO. V.
COURTNEY, 368 U.S. 502, 513 (1962).  IT IS FIRMLY ESTABLISHED, FURTHER,
THAT STATE COURTS RETAIN CONCURRENT JURISDICTION TO ADJUDICATE SUCH
CLAIMS, CHARLES DOWD BOX CO., SUPRA, AND THAT INDIVIDUAL EMPLOYEES HAVE
STANDING TO PROTECT RIGHTS CONFERRED UPON THEM BY SUCH AGREEMENTS,
SMITH V. EVENING NEWS, SUPRA; HUMPHREY V.MOORE, 375 U.S. 335 (1964). 

OUR CASES ALSO CLEARLY ESTABLISH THAT INDIVIDUAL UNION MEMBERS MAY
SUE THEIR EMPLOYERS UNDER SEC. 301 FOR BREACH OF A PROMISE EMBEDDED IN
THE COLLECTIVE-BARGAINING AGREEMENT THAT WAS INTENDED TO CONFER A
BENEFIT UPON THE INDIVIDUAL.  SMITH V. EVENING NEWS, SUPRA.  PLAINLY,
HOWEVER, THIS IS NOT SUCH A LAWSUIT.  LOCKRIDGE SPECIFICALLY DROPPED
GREYHOUND AS A NAMED PARTY FROM HIS INITIAL COMPLAINT AND HAS NEVER
REASSERTED A RIGHT TO REDRESS FROM HIS FORMER EMPLOYER. 

THIS COURT HAS FURTHER HELD IN HUMPHREY V. MOORE, SUPRA, THAT SEC.
301 WILL SUPPORT, REGARDLESS OF OTHERWISE APPLICABLE PRE-EMPTION
CONSIDERATIONS, A SUIT IN THE STATE COURTS BY A UNION MEMBER AGAINST
HIS UNION THAT SEEKS TO REDRESS UNION INTERFERENCE WITH RIGHTS
CONFERRED ON INDIVIDUAL EMPLOYEES BY THE EMPLOYER'S PROMISES IN THE
COLLECTIVE-BARGAINING AGREEMENT, WHERE IT IS PROVED THAT SUCH
INTERFERENCE CONSTITUTED A BREACH OF THE DUTY OF FAIR REPRESENTATION. 
INDEED, IN VACA V. SIPES, 386 U.S. 171 (1967), WE HELD THAT AN ACTION
SEEKING DAMAGES FOR INJURY INFLICTED BY A BREACH OF A UNION'S DUTY OF
FAIR REPRESENTATION WAS JUDICIALLY COGNIZABLE IN ANY EVENT, THAT IS,
EVEN IF THE CONDUCT COMPLAINED OF WAS ARGUABLY PROTECTED OR PROHIBITED
BY THE NATIONAL LABOR RELATIONS ACT AND WHETHER OR NOT THE LAWSUIT WAS
BOTTOMED ON A COLLECTIVE AGREEMENT.  PERHAPS COUNT ONE OF LOCKRIDGE'S
SECOND AMENDED COMPLAINT COULD BE CONSTRUED TO ASSERT EITHER OR BOTH OF
THESE THEORIES OF RECOVERY.  HOWEVER, IT IS UNNECESSARY TO PASS UPON
THE EXTENT TO WHICH GARMON WOULD BE INAPPLICABLE IF IT WERE SHOWN THAT
IN THESE CIRCUMSTANCES PETITIONER NOT ONLY BREACHED ITS CONTRACTUAL
OBLIGATIONS TO RESPONDENT, BUT DID SO IN A MANNER THAT CONSTITUTED A
BREACH OF THE DUTY OF FAIR REPRESENTATION.  FOR SUCH A CLAIM TO BE MADE
OUT, LOCKRIDGE MUST HAVE PROVED "ARBITRARY OR BAD-FAITH CONDUCT ON THE
PART OF THE UNION."  VACA V. SIPES, SUPRA, AT 193.  THERE MUST BE
"SUBSTANTIAL EVIDENCE OF FRAUD, DECEITFUL ACTION OR DISHONEST
CONDUCT."  HUMPHREY V. MOORE, SUPRA, AT 348.  WHETHER THESE REQUISITE
ELEMENTS HAVE BEEN PROVED IS A MATTER OF FEDERAL LAW.  QUITE OBVIOUSLY,
THEY WERE NOT EVEN ASSERTED TO BE RELEVANT IN THE PROCEEDINGS BELOW. 
AS THE IDAHO SUPREME COURT STATED IN AFFIRMING THE VERDICT FOR
LOCKRIDGE, "(THIS WAS A MISINTERPRETATION OF A CONTRACT.  WHATEVER THE
UNDERLYING MOTIVE FOR EXPULSION MIGHT HAVE BEEN, THIS CASE HAS BEEN
SUBMITTED AND TRIED ON THE INTERPRETATION OF THE CONTRACT, NOT ON A
THEORY OF DISCRIMINATION."  93 IDAHO,AT 303-304, 460 P.2D, AT 728-729. 
THUS, THE TRIAL JUDGE'S CONCLUSION OF LAW IN SUSTAINING LOCKRIDGE'S
CLAIM SPECIFICALLY INCORPORATES THE ASSUMPTION THAT THE UNION'S "ACTS .
. . WERE PREDICATED SOLELY UPON THE GROUND THAT (LOCKRIDGE) HAD FAILED
TO TENDER PERIODIC DUES IN CONFORMANCE WITH THE REQUIREMENTS OF THE
UNION CONSTITUTION AND EMPLOYMENT CONTRACT AS THEY INTERPRETED (IT) . .
. ."  APP. 66.  FURTHER, THE TRIAL COURT EXCLUDED AS IRRELEVANT
PETITIONER'S PROFFER OF EVIDENCE DESIGNED TO SHOW THAT THE UNION'S
INTERPRETATION OF THE CONTRACT WAS REASONABLY BASED UPON ITS
UNDERSTANDING OR PRIOR COLLECTIVE-BARGAINING AGREEMENTS NEGOTIATED WITH
GREYHOUND.  TR. 259-260. 

NOR CAN IT BE FAIRLY ARGUED THAT OUR RESOLUTION OF RESPONDENT'S FINAL
CONTENTIONS ENTAILS SIMPLY ATTACHING VARIEGATED LABELS TO MATTERS OF
EQUAL SUBSTANCE.  WE HAVE EXEMPTED SEC. 301 SUITS FROM THE GARMON
PRINCIPLE BECAUSE OF THE EVIDENT CONGRESSIONAL DETERMINATION THAT
COURTS SHOULD BE FREE TO INTERPRET AND ENFORCE COLLECTIVE-BARGAINING
AGREEMENTS EVEN WHERE THAT PROCESS MAY INVOLVE CONDEMNING OR PERMITTING
CONDUCT ARGUABLY SUBJECT TO THE PROTECTION OR PROHIBITION OF THE
NATIONAL LABOR RELATIONS ACT.  THE LEGISLATIVE DETERMINATION THAT
COURTS ARE FULLY COMPETENT TO RESOLVE LABOR RELATIONS DISPUTES THROUGH
FOCUSING ON THE TERMS OF A COLLECTIVE-BARGAINING AGREEMENT CANNOT BE
SAID TO SWEEP WITHIN IT THE SAME CONCLUSION WITH REGARD TO THE TERMS OF
UNION-EMPLOYEE CONTRACTS THAT ARE SAID TO BE IMPLIED IN LAW.  THAT IS
WHY THE PRINCIPLE OF SMITH V. EVENING NEWS IS APPLICABLE ONLY TO THOSE
DISPUTES THAT ARE GOVERNED BY THE TERMS OF THE COLLECTIVE-BARGAINING
AGREEMENT ITSELF.     SIMILARLY, THIS COURT'S REFUSAL TO LIMIT JUDICIAL
COMPETENCE TO RECTIFY A BREACH OF THE DUTY OF FAIR REPRESENTATION RESTS
UPON OUR JUDGMENT THAT SUCH ACTIONS CANNOT, IN THE VAST MAJORITY OF
SITUATIONS WHERE THEY OCCUR, GIVE RISE TO ACTUAL CONFLICT WITH THE
OPERATIVE REALITIES OF FEDERAL LABOR POLICY.  THE DUTY OF FAIR
REPRESENTATION WAS JUDICIALLY EVOLVED, WITHOUT THE PARTICIPATION OF THE
NLRB, TO ENFORCE FULLY THE IMPORTANT PRINCIPLE THAT NO INDIVIDUAL UNION
MEMBER MAY SUFFER INVIDIOUS, HOSTILE TREATMENT AT THE HANDS OF THE
MAJORITY OF HIS COWORKERS.  WHERE SUCH UNION CONDUCT IS PROVED IT IS
CLEAR, BEYOND DOUBT, THAT THE CONDUCT COULD NOT BE OTHERWISE REGULATED
BY THE SUBSTANTIVE FEDERAL LAW.  AND THE FACT THAT THE DOCTRINE WAS
ORIGINALLY DEVELOPED AND APPLIED BY COURTS, AFTER PASSAGE OF THE ACT,
AND CARRIES WITH IT THE NEED TO ADDUCE SUBSTANTIAL EVIDENCE OF
DISCRIMINATION THAT IS INTENTIONAL, SEVERE, AND UNRELATED TO LEGITIMATE
UNION OBJECTIVES ENSURES THAT THE RISK OF CONFLICT WITH THE GENERAL
CONGRESSIONAL POLICY FAVORING EXPERT, CENTRALIZED ADMINISTRATION, AND
REMEDIAL ACTION IS TOLERABLY SLIGHT.  VACA V. SIPES, SUPRA, AT 180
181.  SO VIEWED, THE DUTY OF FAIR REPRESENTATION, PROPERLY DEFINED,
OPERATES TO LIMIT THE SCOPE OF GARMON WHERE THE SHEER LOGIC OF THE PRE
EMPTION PRINCIPLE MIGHT OTHERWISE CAUSE IT TO BE EXTENDED TO A POINT
WHERE ITS OPERATION MIGHT BE UNJUST.  VACA V. SIPES, SUPRA, AT 182
183.  IF, HOWEVER, THE CONGRESSIONAL POLICIES GARMON SEEKS TO PROMOTE
ARE NOT TO BE SWALLOWED UP, THE VERY DISTINCTION, EMBEDDED WITHIN THE
INSTANT LAWSUIT ITSELF, BETWEEN HONEST, MISTAKEN CONDUCT, ON THE ONE
HAND, AND DELIBERATE AND SEVERELY HOSTILE AND IRRATIONAL TREATMENT, ON
THE OTHER, NEEDS STRICTLY TO BE MAINTAINED. 

IV 

FINALLY, WE DEEM IT APPROPRIATE TO DISCUSS BRIEFLY TWO OTHER
CONSIDERATIONS UNDERLYING THE CONCLUSION WE HAVE REACHED IN THIS CASE. 
FIRST, OUR DECISION MUST NOT BE TAKEN AS EXPRESSING ANY VIEWS ON THE
SUBSTANTIVE CLAIMS OF THE TWO PARTIES TO THIS CONTROVERSY.  INDEED, OUR
JUDGMENT IS, QUITE SIMPLY, THAT IT IS NOT THE TASK OF FEDERAL OR STATE
COURTS TO MAKE SUCH DETERMINATIONS.  SECONDLY, IN OUR EXPLICATION OF
THE REASONS FOR THE GARMON RULE, AND THE VARIOUS EXCEPTIONS TO IT, WE
NOTED THAT, ALTHOUGH LARGELY OF JUDICIAL MAKING, THE LABOR RELATIONS
PRE-EMPTION DOCTRINE FINDS ITS BASIC JUSTIFICATION IN THE PRESUMED
INTENT OF CONGRESS.  WHILE WE DO NOT ASSERT THAT THE GARMON DOCTRINE IS
WITHOUT IMPERFECTION, WE DO THINK THAT IT IS FOUNDED ON REASONED
PRINCIPLE AND THAT UNTIL IT IS ALTERED BY CONGRESSIONAL ACTION OR BY
JUDICIAL INSIGHTS THAT ARE BORN OF FURTHER EXPERIENCE WITH IT, A HEAVY
BURDEN RESTS UPON THOSE WHO WOULD, AT THIS LATE DATE, ASK THIS COURT TO
ABANDON GARMON AND SET OUT AGAIN IN QUEST OF A SYSTEM MORE NEARLY
PERFECT.  A FAIR REGARD FOR CONSIDERATIONS OF STARE DECISIS AND THE
COORDINATE ROLE OF THE CONGRESS IN DEFINING THE EXTENT TO WHICH FEDERAL
LEGISLATION PRE-EMPTS STATE LAW STRONGLY SUPPORT OUR CONCLUSION THAT
THE BASIS TENETS OF GARMON SHOULD NOT BE DISTURBED.  /9/ 

FOR THE REASONS STATED ABOVE, THE JUDGMENT BELOW IS

REVERSED. 

/1/  THE LOCAL AND ITS PARENT ARE, OF COURSE, SEPARATE LEGAL
ENTITIES FOR MANY PURPOSES AND WERE JOINED AS CODEFENDANTS BELOW SO
THAT EACH APPEARS AS A PETITIONER IN THIS COURT.  HOWEVER BOTH WILL BE
JOINTLY DESCRIBED THROUGHOUT THIS OPINION AS "THE PETITIONER" OR "THE
UNION" SINCE THE PARENT WAS HELD LIABLE ON THE THEORY THAT IT WAS
RESPONSIBLE FOR THE ACTS OF THE LOCAL HERE INVOLVED, NOT ON THE BASIS
OF ANY SEPARATE ACTS COMMITTED ONLY BY THE PARENT. 

/2/  BECAUSE THE IDAHO COURTS TREATED AS IRRELEVENT THE ACTUAL
MOTIVATION FOR THE UNION'S CONDUCT, SEE PART III, INFRA, THE TRIAL
COURT DID NOT INCORPORATE IN ITS FORMAL FINDINGS OF FACT AND
CONCLUSIONS OF LAW ANY REFERENCE TO THIS CHECKOFF DISPUTE.  HOWEVER,
SOME SUCH EVIDENCE WAS ALLOWED AT TRIAL, AS WELL AS TESTIMONY ABOUT THE
UNION'S PAST PRACTICE REGARDING DUES-DELINQUENT MEMBERS, ON THE THEORY
THAT THIS MIGHT ULTIMATELY BEAR ON THE ISSUE WHETHER LOCKRIDGE HAD
PROPERLY EXHAUSTED HIS ADMINISTRATIVE REMEDIES.  THE TRIAL JUDGE IN HIS
INITIAL MEMORANDUM DECISION, HOWEVER, DID INDICATE HIS BELIEF THAT "THE
TRUE FACTS ARE" AS STATED IN THE TEXT ACCOMPANYING THIS FOOTNOTE. 

/3/  IT APPEARS THAT AT LEAST ONE OTHER PERSON, ELMER DAY, WAS
SIMILARLY SUSPENDED FROM MEMBERSHIP IN THE UNION AND DISCHARGED FROM
GREYHOUND.  ON NOVEMBER 12, 1959, HE FILED A FORMAL CHARGE WITH THE
BOARD'S REGIONAL DIRECTOR.  ON DECEMBER 15, 1959, THE DIRECTOR ADVISED
DAY, BY LETTER, THAT "IT APPEARS THAT, BECAUSE THERE IS INSUFFICIENT
EVIDENCE OF VIOLATIONS, FURTHER PROCEEDINGS ARE NOT WARRANTED AT THIS
TIME.  I AM THEREFORE REFUSING TO ISSUE COMPLAINT IN THESE MATTERS." 
THE DIRECTOR FURTHER INFORMED DAY THAT "YOU MAY OBTAIN A REVIEW OF THIS
ACTION BY FILING A REQUEST FOR SUCH REVIEW WITH THE GENERAL COUNSEL OF
THE NATIONAL LABOR RELATIONS BOARD . . . ."  DAY DID NOT SEEK REVIEW. 
INSTEAD, HE FILED SUIT AGAINST THE UNION IN THE CIRCUIT COURT OF
MULTNOMAH COUNTY, OREGON, FOR TORTIOUS INTERFERENCE WITH EMPLOYMENT,
AND OBTAINED A JURY AWARD FOR GENERAL AND PUNITIVE DAMAGES.  ON APPEAL,
THE SUPREME COURT OF OREGON (TWO JUDGES DISSENTING) REVERSED, HOLDING
THE CONDUCT COMPLAINED OF TO BE WITHIN THE BOARD'S EXCLUSIVE
JURISDICTION.  DAY V. NORTHWEST DIVISION 1055, 238 ORE.  624, 389 P.2D
42 (1964).  (SOME OF THESE FACTS ARE TAKEN FROM THE DISSENTING OPINION
IN THAT CASE.) 

/4/  FOR A DISCUSSION OF THESE PROBLEMS THAT FORMED A BACKDROP FOR
THE FEDERAL ACT, SEE H. WELLINGTON, LABOR AND THE LEGAL PROCESS, C. 1
(1968).  SEE ALSO COX, FEDERALISM IN THE LAW OF LABOR RELATIONS, 67
HARV.L.REV.  1297, 1302-1304, 1315-1317 (1954). 

/5/  THIS APPEARS TO BE THE PRECISE POINT OF DIFFERENCE BETWEEN OUR
ASSESSMENT OF CONGRESSIONAL PURPOSE AND THAT OF MR. JUSTICE WHITE. 
WHILE IT IS NOT CLEAR HOW HE WOULD TREAT THE GARMON PRINCIPLE WHERE THE
CONFLICT IS BETWEEN UNIONS AND EMPLOYERS, HE EXPRESSLY ARGUES THAT
STATE POWER TO REGULATE UNION CONDUCT HARMFUL TO ITS MEMBERS THAT IS
WITHIN THE COMPASS OF THE NATIONAL LABOR RELATIONS ACT SHOULD BE
UNLIMITED, EXCEPT BY THE OBVIOUS QUALIFICATION THAT STATES MAY NOT
PUNISH CONDUCT AFFIRMATIVELY PROTECTED BY FEDERAL LAW.  THUS, IN HIS
VIEW, WHEN IT ENACTED THE NLRA, CONGRESS WOULD HAVE FULLY SERVED THOSE
INTERESTS IT INTENDED TO PROMOTE IN THE CONDUCT OF UNION-MEMBER
RELATIONS HAD IT SIMPLY DECLARED THAT THE STATES MAY NOT PROSCRIBE
CERTAIN, DEFINED CONDUCT.  CERTAINLY, HE IS PREPARED TO ADOPT A
JUDICIAL CONSTRUCTION OF THE ACT THAT IS CONSISTENT ONLY WITH SUCH A
VIEW OF CONGRESSIONAL INTENT.  AT BOTTOM, WHAT HIS POSITION SEEMS TO
IMPLY IS THAT GIVING THE NATIONAL LABOR RELATIONS BOARD JURISDICTION TO
ENFORCE FEDERAL LAW REGULATING THE USE OF UNION SECURITY CLAUSES WAS
LARGELY, IF NOT WHOLLY, WITHOUT RATIONAL PURPOSE.  AS WE HAVE EXPLAINED
AT SOME LENGTH ABOVE, WE DO NOT UNDERSTAND HOW COURTS MAY PROPERLY TAKE
SUCH A LIMITED VIEW OF CONGRESSIONAL INTENT IN THE FACE OF LEGISLATION
THAT IS IN FACT MUCH MORE WIDE RANGING, AND IN THE ABSENCE OF A
CONTRARY EXPRESSION OF INTENTION FROM CONGRESS ITSELF. 

FURTHER, MR. JUSTICE WHITE APPARENTLY REGARDS THE REMEDIAL ASPECTS
OF THE FEDERAL SCHEME AS UNIMPORTANT TO THOSE WHO DESIGNED IT.  FOR
EXAMPLE, ASSUMING ARGUENDO THAT PETITIONER'S CONDUCT WAS PROHIBITED
UNDER BOTH FEDERAL AND STATE LAW, HE WOULD DEEM IT OF NO NATIONAL
SIGNIFICANCE IF ONE STATE PUNISHED SUCH CONDUCT WITH A JAIL SENTENCE,
AND ANOTHER UTILIZED PUNITIVE DAMAGES, WHILE THE NLRB MERELY AWARDED
BACK PAY.  HIS POSITION APPARENTLY IS THAT CONGRESS CONSIDERED ANY
STATE TRIBUNAL EQUALLY CAPABLE, WITH THE BOARD, OF ASSESSING THE
APPROPRIATENESS OF A GIVEN REMEDY AND WAS UNCONCERNED ABOUT DISPARITIES
IN THE REACTIONS OF THE STATES TO UNLAWFUL UNION BEHAVIOR.  THIS
ARGUMENT, TOO, SEEMS INCOMPATIBLE WITH THE SIMPLE FACT THAT CONGRESS
COMMITTED ENFORCEMENT OF THE FEDERAL LAW HERE INVOLVED TO A CENTRALIZED
AGENCY. 

FOR THESE REASONS, MR. JUSTICE WHITE'S ANALOGIES DO NOT PERSUADE US.
UNLIKE THE PROBLEM HERE UNDER REVIEW, CONGRESS DID NOT PUT ENFORCEMENT
OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 INTO THE
HANDS OF THE BOARD.  73 STAT. 519.  AND IT AFFIRMATIVELY EXPRESSED AN
INTENTION THAT THE BOARD NOT POSSESS PRE-EMPTIVE JURISDICTION OVER
SUITS TO ENFORCE COLLECTIVE BARGAINING AGREEMENTS.  SEE PART III,
INFRA. 

/6/  THE OBJECTIONS RAISED TO THIS LATTER POINT, POST, AT 325-332
(WHITE, J., DISSENTING), SEEM LARGELY IRRELEVANT TO THE CASE UNDER
REVIEW.  THIS IS NOT A SITUATION WHERE THE SOLE ARGUMENT FOR PRE
EMPTION IS THAT THE UNION'S CONDUCT WAS ARGUABLY PROTECTED.  CLEARLY,
IF THE FACTS ARE AS RESPONDENT BELIEVES THEM TO BE, THERE IS AMPLE
REASONS TO CONCLUDE THAT PETITIONER PROBABLY COMMITTED AN UNFAIR LABOR
PRACTICE. 

/7/  GARMON ITSELF RECOGNIZED THAT RUSSELL PERMITTED STATE COURTS
"TO GRANT COMPENSATION FOR THE CONSEQUENCES, AS DEFINED BY THE
TRADITIONAL LAW OF TORTS, OF CONDUCT MARKED BY VIOLENCE AND IMMINENT
THREATS TO THE PUBLIC ORDER."  359 U.S.,AT 247.  HOWEVER, WHEREAS THE
COURT IN RUSSELL HAD JUSTIFIED THAT RESULT PRINCIPALLY UPON THE BROAD
GROUNDS THAT STATE LAW NOT SPECIFICALLY RELATING TO LABOR RELATIONS PER
SE WAS NOT PRE-EMPTED BY THE ACT, THE COURT IN GARMON RESTATED THIS
RESULT AS DICTATED BY "THE COMPELLING STATE INTEREST, IN THE SCHEME OF
OUR FEDERALISM, IN THE MAINTENANCE OF DOMESTIC PEACE (WHICH) IS NOT
OVERRIDDEN IN THE ABSENCE OF CLEARLY EXPRESSED CONGRESSIONAL
DIRECTION."  IBID.  IT IS, OF COURSE, THIS LATTER AND NARROWER
RATIONALE THAT SURVIVES TODAY. 

/8/  IT MAY BE THAT A SIMILAR EXCEPTION WOULD ARISE WHERE THE BOARD
AFFIRMATIVELY INDICATES THAT, IN ITS VIEW, PRE-EMPTION WOULD NOT BE
APPROPRIATE.  CF. POST, AT 310-312, 319 N. 2 (WHITE, J., DISSENTING). 
AS THE BOARD'S AMICUS BRIEF IN THE INSTANT CASE MAKES CLEAR, NO SUCH
QUESTION IS NOW BEFORE USE. 

/9/  INDEED, MR. JUSTICE WHITE'S DISSENTING OPINION FAILS TO
DEMONSTRATE THE NEED FOR SUCH A DEPARTURE FROM OUR TRADITIONAL JUDICIAL
ROLE.  ON THE CONTRARY, HE AFFIRMATIVELY ESTABLISHES THAT CONGRESS HAS
TAKEN AN ACTIVE, CONSCIOUS ROLE IN APPORTIONING POWER TO DEAL WITH
CONTROVERSIES IMPLICATING FEDERAL LABOR LAW AMONG VARIOUS COMPETENT
TRIBUNALS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD AFFIRM THIS JUDGMENT ON THE BASIS OF MACHINISTS V. GONZALES,
356 U.S. 617, RATHER THAN OVERRULE IT. I WOULD NOT EXTEND SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, SO AS TO MAKE
LOCKRIDGE, THE EMPLOYEE, SEEK HIS RELIEF IN FARAWAY WASHINGTON, D.C.,
FROM THE NATIONAL LABOR RELATIONS BOARD. 

WHEN WE HOLD THAT A GRIEVANCE IS "ARGUABLY" WITHIN THE JURISDICTION
OF THE NATIONAL LABOR RELATIONS BOARD AND REMIT THE INDIVIDUAL EMPLOYEE
TO THE BOARD FOR REMEDIAL RELIEF, WE IMPOSE A GREAT HARDSHIP ON HIM,
ESPECIALLY WHERE HE IS A LONE INDIVIDUAL NOT FINANCED OUT OF A LUSH
TREASURY.  I WOULD ALLOW RESPONDENT RECOURSE TO LITIGATION IN HIS HOME
TOWN TRIBUNAL AND NOT REQUIRE HIM TO RESORT TO AN ELUSIVE REMEDY IN
DISTANT AND REMOTE WASHINGTON, D.C., WHICH TAKES MONEY TO REACH. 

HE HAS SIX MONTHS WITHIN WHICH TO FILE AN UNFAIR LABOR PRACTICE
CHARGE WITH THE REGIONAL DIRECTOR AND SERVE IT UPON THE OTHER PARTY. 
IF HE DOES NOT FILE WITHIN SIX MONTHS, THE CLAIM IS BARRED.  29 U.S.C.
160(B).  THE CHARGE MUST BE IN WRITING AND CONTAIN EITHER A DECLARATION
THAT THE CONTENTS ARE TRUE TO THE BEST OF HIS KNOWLEDGE, OR ELSE A
NOTARIZATION.  29 CFR 101.2.  WHEN THE CHARGE IS RECEIVED, IT IS FILED,
DOCKETED, AND GIVEN A NUMBER (29 CFR 101.4) AND ASSIGNED TO A MEMBER OF
THE FIELD STAFF FOR INVESTIGATION.  29 CFR 101.4. 

FOLLOWING THE INVESTIGATION, THE REGIONAL DIRECTOR MAKES HIS
DECISION.  "IF INVESTIGATION REVEALS THAT THERE HAS BEEN NO VIOLATION
OF THE NATIONAL LABOR RELATIONS ACT OR THE EVIDENCE IS INSUFFICIENT TO
SUBSTANTIATE THE CHARGE, THE REGIONAL DIRECTOR RECOMMENDS WITHDRAWAL OF
THE CHARGE BY THE PERSON WHO FILED."  29 CFR 101.5.  IF THE COMPLAINING
PARTY DOES NOT WITHDRAW THE CHARGE, THE REGIONAL DIRECTOR DISMISSES IT.
29 CFR 101.6.  FOLLOWING DISMISSAL, THE COMPLAINANT HAS 10 DAYS TO
APPEAL THE DECISION TO THE GENERAL COUNSEL WHO REVIEWS THE DECISION. 
IBID.  IF THE GENERAL COUNSEL HOLDS AGAINST THE COMPLAINING PARTY AND
REFUSES TO ISSUE AN UNFAIR LABOR PRACTICE COMPLAINT, THE DECISION IS
APPARENTLY UNREVIEWABLE.  A. COX & D. BOK, LABOR LAW 138 (7TH ED.
1969); GENERAL DRIVERS LOCAL 886 V. NLRB, 179 F.2D 492. 

FROM THE VIEWPOINT OF AN AGGRIEVED EMPLOYEE, THERE IS NOT A TRACE OF
EQUITY IN THIS LONG-DRAWN, EXPENSIVE REMEDY.  IF HE MUSTERS THE
RESOURCES TO EXHAUST THE ADMINISTRATIVE REMEDY, THE CHANCES ARE THAT HE
TOO WILL BE EXHAUSTED.  IF THE GENERAL COUNSEL ISSUES A COMPLAINT, THEN
HE STANDS IN LINE FOR SOME TIME WAITING FOR THE BOARD'S DECISION.  /1/
IF THE GENERAL COUNSEL REFUSES TO ACT, THEN THE EMPLOYEE IS ABSOLUTELY
WITHOUT REMEDY.  FOR AS GARMON STATES: 

"(THE BOARD MAY ALSO FAIL TO DETERMINE THE STATUS OF THE DISPUTED
CONDUCT BY DECLINING TO ASSERT JURISDICTION, OR BY REFUSAL OF THE
GENERAL COUNSEL TO FILE A CHARGE, OR BY ADOPTING SOME OTHER DISPOSITION
WHICH DOES NOT DEFINE THE NATURE OF THE ACTIVITY WITH UNCLOUDED LEGAL
SIGNIFICANCE.  THIS WAS THE BASIC PROBLEM UNDERLYING OUR DECISION IN
GUSS V. UTAH LABOR RELATIONS BOARD, 353 U.S. 1.  IN THAT CASE WE HELD
THAT THE FAILURE OF THE NATIONAL LABOR RELATIONS BOARD TO ASSUME
JURISDICTION DID NOT LEAVE THE STATES FREE TO REGULATE ACTIVITIES THEY
WOULD OTHERWISE BE PRECLUDED FROM REGULATING.  IT FOLLOWS THAT THE
FAILURE OF THE BOARD TO DEFINE THE LEGAL SIGNIFICANCE UNDER THE ACT OF
A PARTICULAR ACTIVITY DOES NOT GIVE THE STATES THE POWER TO ACT."  359
U.S.,AT 245-246.  FROM THIS IT FOLLOWS THAT IF THE GENERAL COUNSEL
REFUSES TO ACT, NO ONE MAY ACT AND THE EMPLOYEE IS BARED FROM RELIEF IN
EITHER STATE OR FEDERAL COURT.  /2/  SEE DAY V. NORTHWEST DIVISION
1055, 238 ORE.  624, 389 P.2D 42, CERT. DENIED, 379 U.S. 878.     WHEN
WE TELL A SOLE INDIVIDUAL THAT HIS CASE IS "ARGUABLY" WITHIN THE
JURISDICTION OF THE BOARD, WE IN PRACTICAL EFFECT DENY HIM ANY REMEDY. 
I REPEAT WHAT I SAID BEFORE, "WHEN THE BASIC DISPUTE IS BETWEEN A UNION
AND AN EMPLOYER, ANY HIATUS THAT MIGHT EXIST IN THE JURISDICTIONAL
BALANCE THAT HAS BEEN STRUCK CAN BE FILLED BY RESORT TO ECONOMIC
POWER.  BUT WHEN THE UNION MEMBER HAS A DISPUTE WITH HIS UNION, HE HAS
NO POWER ON WHICH TO RELY."  PLUMBERS' UNION V. BORDEN, 373 U.S. 690,
700 (DISSENTING). 

GARMON INVOLVED A UNION-EMPLOYER DISPUTE.  IT SHOULD NOT BE EXTENDED
TO THE INDIVIDUAL EMPLOYEE WHO SEEKS A REMEDY FOR HIS GRIEVANCE AGAINST
HIS UNION. 

THE COMPLAINT IN THIS STATE COURT SUIT SOUGHT DAMAGES FROM THE UNION
FOR ITS ACTION IN CAUSING THE EMPLOYER TO DISCHARGE HIM PURSUANT TO THE
UNION-SECURITY CLAUSE IN THE COLLECTIVE-BARGAINING AGREEMENT.  IT ALSO
ASKED FOR "SUCH OTHER AND FURTHER RELIEF AS TO THE COURT MAY APPEAR
MEET AND EQUITABLE IN THE PREMISES." 

IT APPEARS THAT THE COLLECTIVE AGREEMENT ONLY REQUIRED LOCKRIDGE TO
BE A MEMBER OF THE UNION AS A CONDITION OF EMPLOYMENT, NOT A MEMBER IN
GOOD STANDING.  LOCKRIDGE, IT APPEARS, WAS ONE MONTH DELINQUENT IN
PAYMENT OF DUES BUT WAS STILL A MEMBER. 

THE CASE FOR RELIEF BY LOCKRIDGE IN A STATE COURT IS AS STRONG AS,
IF NOT STRONGER THAN, THE CASE OF GONZALES.  LOCKRIDGE, WHO WAS REFUSED
EMPLOYMENT BECAUSE OF THE UNION'S REPRESENTATIONS TO THE EMPLOYER, HAD
NEVER BEEN EXPELLED FROM THE UNION.  ON THE OTHER HAND, GONZALES HAD
BEEN EXPELLED FROM THE UNION BECAUSE HE BROUGHT ASSAULT AND BATTERY
CHARGES AGAINST A REPRESENTATIVE OF THE UNION.  HE SUED FOR RESTORATION
OF MEMBERSHIP AND FOR DAMAGES.  THE STATE COURT FOUND THAT THE UNION
HAD BREACHED ITS CONTRACT WITH THE EMPLOYEE AND ORDERED HIM REINSTATED
AND AWARDED HIM DAMAGES.  356 U.S.,AT 618.  WE SUSTAINED THE STATE
COURT, SAYING THAT "THE SUBJECT MATTER OF THE LITIGATION . . . WAS THE
BREACH OF A CONTRACT GOVERNING THE RELATIONS" BETWEEN THE EMPLOYEE AND
THE UNION AND THAT THE "SUIT DID NOT PURPORT TO REMEDY OR REGULATE
UNION CONDUCT ON THE GROUND THAT IT WAS DESIGNED TO BRING ABOUT
EMPLOYER DISCRIMINATION AGAINST AN EMPLOYEE, THE EVIL THE BOARD IS
CONCERNED TO STRIKE AT AS AN UNFAIR LABOR PRACTICE UNDER SEC.
8(B)(2)."  ID., AT 621-622.  WE HELD THAT IN THOSE CIRCUMSTANCES THE
STATE COURT HAD POWER TO ORDER THE EMPLOYEE REINSTATED TO MEMBERSHIP
AND WAS NOT DEPRIVED OF JURISDICTION TO "FILL OUT" HIS REMEDY BY
AWARDING DAMAGES.  ID., AT 620-621. 

WHETHER IN THE PRESENT CASE THE DISCHARGE OF LOCKRIDGE WAS
"ARGUABLY" AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF GARMON IS
IRRELEVANT.  THE REASON IS THAT THE BOARD WOULD NOT HAVE THE POWER TO
SUPPLY THE TOTAL REMEDY WHICH LOCKRIDGE SEEKS EVEN IF THE EMPLOYER HAD
COMMITTED AN UNFAIR LABOR PRACTICE.  TRUE, THE BOARD HAS AUTHORITY TO
AWARD BACK PAY /3/  BUT IT HAS NO AUTHORITY TO AWARD DAMAGES BEYOND
BACK PAY.  MOREOVER, UNDER STEELE V. LOUISVILLE & N.R. CO., 323 U.S.
192, THE UNION IS IN A FIDUCIARY RELATION TO ITS MEMBERS.  AS WE STATED
IN VACA V. SIPES, 386 U.S. 171, 177: 

"UNDER THIS DOCTRINE, THE EXCLUSIVE AGENT'S STATUTORY AUTHORITY TO
REPRESENT ALL MEMBERS OF A DESIGNATED UNIT INCLUDES A STATUTORY
OBLIGATION TO SERVE THE INTERESTS OF ALL MEMBERS WITHOUT HOSTILITY OR
DISCRIMINATION TOWARD ANY, TO EXERCISE ITS DISCRETION WITH COMPLETE
GOOD FAITH AND HONESTY, AND TO AVOID ARBITRARY CONDUCT." 

WE EMPHASIZED IN THE SIPES CASE THAT THE GARMON RULE WAS "NOT
APPLICABLE TO CASES INVOLVING ALLEGED BREACHES OF THE UNION'S DUTY OF
FAIR REPRESENTATION."  ID., AT 181.  WE HELD THAT IN THIS TYPE OF CASE
CONGRESS DID NOT INTEND "TO OUST THE COURTS OF THEIR TRADITIONAL
JURISDICTION TO CURB ARBITRARY CONDUCT BY THE INDIVIDUAL EMPLOYEE'S
STATUTORY REPRESENTATIVE."  ID., AT 183. 

AS DEMONSTRATED BY MR. JUSTICE WHITE IN HIS DISSENT IN THIS CASE,
THE EXCEPTIONS TO THE PRE-EMPTION RULE ARE SO MANY AND SO IMPORTANT
THAT THEY MAKE AMAZING THE COURT'S "UNCRITICAL RESORT TO IT." 

THE WRONGS SUFFERED BY LOCKRIDGE STEMMED FROM THE UNION'S BREACH OF
ITS CONTRACT.  RATHER THAN OVERRULE GONZALES, WE SHOULD REAFFIRM WHAT
WE SAID THERE: 

"(THE PROTECTION OF UNION MEMBERS IN THEIR RIGHTS AS MEMBERS FROM
ARBITRARY CONDUCT BY UNIONS AND UNION OFFICERS HAS NOT BEEN UNDERTAKEN
BY FEDERAL LAW, AND INDEED THE ASSERTION OF ANY SUCH POWER HAS BEEN
EXPRESSLY DENIED.  THE PROVISO TO SEC. 8(B)(1) OF THE ACT STATES THAT
'THIS PARAGRAPH SHALL NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO
PRESCRIBE ITS OWN RULES WITH RESPECT TO THE ACQUISITION OR RETENTION OF
MEMBERSHIP THEREIN . . . .'  61 STAT. 141, 29 U.S.C. 158(B)(1).  THE
PRESENT CONTROVERSY IS PRECISELY ONE THAT GIVES LEGAL EFFICACY UNDER
STATE LAW TO THE RULES PRESCRIBED BY A LABOR ORGANIZATION FOR
'RETENTION OF MEMBERSHIP THEREIN.'  THUS, TO PRECLUDE A STATE COURT
FROM EXERTING ITS TRADITIONAL JURISDICTION TO DETERMINE AND ENFORCE THE
RIGHTS OF UNION MEMBERSHIP WOULD IN MANY CASES LEAVE AN UNJUSTLY OUSTED
MEMBER WITHOUT REMEDY FOR THE RESTORATION OF HIS IMPORTANT UNION
RIGHTS.  SUCH A DRASTIC RESULT, ON THE REMOTE POSSIBILITY OF SOME
ENTANGLEMENT WITH THE BOARD'S ENFORCEMENT OF THE NATIONAL POLICY, WOULD
REQUIRE A MORE COMPELLING INDICATION OF CONGRESSIONAL WILL THAN CAN BE
FOUND IN THE INTERSTICES OF THE TAFT-HARTLEY ACT."  356 U.S.,AT 620. 

WHERE THE QUARREL BETWEEN THE EMPLOYEE AND THE UNION IS OVER A
PARTICULAR JOB, HIS REMEDY IS BEFORE THE BOARD.  PLUMBERS' UNION V.
BORDEN, 373 U.S.690; IRON WORKERS V. PERKO, 373 U.S. 701.  BUT WHERE
THE UNION CONTRACT IS BREACHED BY EXPULSION OF THE EMPLOYEE, AS ALLEGED
IN GONZALES, OR WHERE HE IS WRONGFULLY TREATED AS NO LONGER BEING A
MEMBER OF THE UNION (WHICH IS THE PRESENT CASE) THE SUIT LIES IN THE
STATE COURT FOR DAMAGES, FOR DECLARATORY OR OTHER RELIEF THAT HE STILL
IS A MEMBER, AND FOR SUCH OTHER REMEDIES AS MAY BE APPROPRIATE. 

WHILE I JOINED THE DISSENT IN GONZALES, EXPERIENCE UNDER GARMON
CONVINCES ME THAT WE SHOULD NOT APPLY ITS RULE TO THE GRIEVANCES OF
INDIVIDUAL EMPLOYEES AGAINST A UNION.  I WOULD AFFIRM THE JUDGMENT
BELOW. 

/1/  FOR THE BACKLOG OF THE BOARD SEE 34TH ANNUAL REPORT OF NLRB FOR
FISCAL YEAR 1969.  TABLE 1, P. 196, SHOWS THE FOLLOWING NUMBER OF
UNFAIR LABOR PRACTICE CASES:

  PENDING JULY 1, 1968 . . . 7,377 RECEIVED FISCAL 1969 . . .
18,651 ON DOCKET FISCAL 1969

  . . . 26,028 CLOSED FISCAL 1969 . . . 18,939 PENDING JUNE 30,
1969 . . . 7,089 

TABLE 8, P. 212, SHOWS THAT THE 18,939 UNFAIR LABOR PRACTICE CASES
IN 1969 WERE CLOSED AS FOLLOWS:

  BEFORE ISSUANCE OF COMPLAINT . . . 16,135 AFTER ISSUANCE OF
COMPLAINT, BEFORE OPENING OF

  HEARING . . . 1,251 AFTER HEARING OPENED, BEFORE ISSUANCE OF
TRIAL EXAMINER'S DECISION

  . . . 186 AFTER TRIAL EXAMINER'S DECISION, BEFORE ISSUANCE OF
BOARD DECISION . . . 134 AFTER

  BOARD ORDER ADOPTING TRIAL EXAMINER'S DECISION IN ABSENCE OF
EXCEPTIONS . . . 131 AFTER BOARD

  DECISION, BEFORE CIRCUIT COURT DECREE . . .606 AFTER CIRCUIT
COURT DECREE, BEFORE SUPREME

COURT ACTION . . . 427 AFTER SUPREME COURT ACTION . . . 69 

OF THE FOREGOING--

  31% WERE DISMISSED BEFORE COMPLAINT.  24.9% WERE SETTLED AND
ADJUSTED.  36% WERE WITHDRAWN

BEFORE COMPLAINT. 

IN ONLY 5.7% DID THE BOARD ISSUE ORDERS.  ID., AT 4. 

/2/  SINCE WE HAVE YET TO RULE ON THE REVIEWABILITY OF THE REFUSAL
OF THE GENERAL COUNSEL TO ACT, THAT ROUTE MIGHT BE OPEN ALTHOUGH AT
PRESENT THE AUTHORITY IS TO THE CONTRARY.  SEE A. COX & D. BOK, LABOR
LAW 138 (7TH ED. 1969). 

/3/  UNDER SEC. 10(C) OF THE ACT, 29 U.S.C. 160(C), THE BOARD CAN
AWARD BACK PAY AGAINST AN EMPLOYER, PHELPS DODGE CORP. V. NLRB, 313
U.S. 177, AND THE BOARD WILL ORDER BACK PAY AGAINST A UNION WHERE IT
CAUSES AN EMPLOYER TO DISCRIMINATE AGAINST AN EMPLOYEE.  SEE
INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS, LOCAL 84, 146
N.L.R.B. 660; UNITED MINE WORKERS (BLUE DIAMOND COAL CO.), 143 N.L.R.B.
795. 

MR. JUSTICE WHITE, WITH WHOM THE CHEIF JUSTICE JOINS, DISSENTING. 

LIKE MR. JUSTICE DOUGLAS, I WOULD NEITHER OVERRULE NOR EVISCERATE
MACHINISTS V. GONZALES, 356 U.S. 617 (1958).  IN LIGHT OF PRESENT
STATUTORY LAW AND CONGRESSIONAL INTENTION GLEANED THEREFROM STATE
COURTS SHOULD NOT BE FORECLOSED FROM EXTENDING RELIEF FOR UNION
DEPRIVATION OF MEMBERS' STATE LAW RIGHTS UNDER THE UNION CONSTITUTION
AND BYLAWS.  EVEN IF I AGREED THAT THE DOCTRINE OF SAN DIEGO BUILDING
TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959), PROPERLY PRE-EMPTS SUCH
UNION MEMBER ACTIONS BASED ON STATE LAW WHERE THE CHALLENGED CONDUCT IS
ARGUABLY AN UNFAIR LABOR PRACTICE, I COULD NOT JOIN THE OPINION OF THE
COURT SINCE IT UNQUALIFIEDLY APPLIES THE SAME DOCTRINE WHERE THE
CONDUCT OF THE UNION IS ONLY ARGUABLY PROTECTED UNDER THE FEDERAL LAW. 

THE GARMON DOCTRINE, WHICH IS TODAY REAFFIRMED AND EXTENDED, HAS AS
ITS TOUCHSTONE THE PRESUMED CONGRESSIONAL GOAL OF A UNIFORM NATIONAL
LABOR POLICY; TO THIS END, THE COURT HAS BELIEVED, THE ADMINISTRATION
OF THAT POLICY INSOFAR AS IS POSSIBLE BE IN THE HANDS OF A SINGLE,
CENTRALIZED AGENCY.  IN MANY WAYS I HAVE NO QUARREL WITH THIS VIEW. 
MANY WOULD AGREE THAT AS A GENERAL MATTER SOME DEGREE OF UNIFORMITY IS
PERFERABLE TO THE CONFLICTING VOICES OF 50 STATES, PARTICULARLY IN VIEW
OF THE STRUCTURE OF INDUSTRIAL AND COMMERCIAL ACTIVITIES IN THIS
COUNTRY.  CONGRESS DETERMINED AS MUCH WHEN IT ENACTED THE NATIONAL
LABOR RELATIONS ACT (NLRA). 

BUT IT IS TIME TO RECOGNIZE THAT CONGRESS HAS NOT FEDERALIZED THE
ENTIRE LAW OF LABOR RELATIONS, EVEN LABOR-MANAGEMENT RELATIONS, AND
THAT WITHIN THE AREA OCCUPIED BY FEDERAL LAW NEITHER CONGRESS, THIS
COURT, NOR THE NATIONAL LABOR RELATIONS BOARD ITSELF HAS, IN THE NAME
OF UNIFORMITY, INSISTED THAT THE AGENCY ALWAYS BE THE EXCLUSIVE
EXPOSITOR OF FEDERAL POLICY IN THE FIRST INSTANCE.  TO PUT THE MATTER
IN PROPER PERSPECTIVE IT WILL BE HELPFUL TO SET DOWN SOME OF THE
IMPORTANT CONTEXTS IN WHICH FEDERAL LAW IS IMPLEMENTED BY THE COURTS OR
OTHER INSTITUTIONS WITHOUT THE PRIOR INTERVENTION OF THE BOARD, AS WELL
AS THOSE IN WHICH STATE RATHER THAN FEDERAL LAW IS PERMITTED TO
OPERATE.  PART I, FOLLOWING UNDERTAKES THIS TASK.  AGAINST THAT
BACKGROUND, PART II DEALS WITH UNION MEMBER ACTIONS AGAINST THEIR
UNION, AND PART III CONSIDERS THE GARMON DOCTRINE IN THOSE SITUATIONS
WHERE THE CONDUCT COMPLAINED OF IS ARGUABLY PROTECTED BY FEDERAL LAW. 

        I 

IT IS WELL ESTABLISHED THAT THE BOARD HAS JURISDICTION OVER UNFAIR
LABOR PRACTICES EVEN THOUGH THEY MIGHT ALSO BE ARGUABLE VIOLATIONS OF
THE COLLECTIVE-BARGAINING AGREEMENT AND SUBJECT TO ARBITRATION UNDER
THE TERMS OF THE CONTRACT.  SEE 29 U.S.C. 160(A); CAREY V. WESTINGHOUSE
CORP., 375 U.S. 261, 272 (1964); NLRB V. STRONG, 393 U.S. 357, 360-361
(1969); NLRB V. ACME INDUSTRIAL CO., 385 U.S. 432 (1967).  BUT AS A
POLICY MATTER THE BOARD WILL NOT OVERTURN ARBITRATION AWARDS BASED ON
BEHAVIOR THAT IS ALSO AN ALLEGED UNFAIR LABOR PRACTICE IF THE
ARBITRATION PROCEEDINGS COMPLY WITH CERTAIN PROCEDURES, AMONG WHICH IS
THAT THE ARBITRATOR MUST HAVE GIVEN CONSIDERATION TO THE ALLEGED UNFAIR
LABOR PRACTICE.  SPIELBERG MFG. CO., 112 N.L.R.B. 1080 (1955);
INTERNATIONAL HARVESTER CO., 138 N.L.R.B. 923 (1962), ENFORCED SUB NOM.
RAMSEY V. NLRB, 327 F.2D 784 (CA7 1964).  THE BOARD HAS SAID: 

     "IF COMPLETE EFFECTUATION OF THE FEDERAL POLICY IS TO BE

  ACHIEVED, WE FIRMLY BELIEVE THAT THE BOARD, WHICH IS ENTRUSTED

  WITH THE ADMINISTRATION OF ONE OF THE MANY FACETS OF NATIONAL

  LABOR POLICY, SHOULD GIVE HOSPITABLE ACCEPTANCE TO THE ARBITRAL

  PROCESS AS 'PART AND PARCEL OF THE COLLECTIVE BARGAINING PROCESS

  ITSELF,' AND VOLUNTARILY WITHHOLD ITS UNDOUBTED AUTHORITY TO

  ADJUDICATE ALLEGED UNFAIR LABOR PRACTICE CHARGES INVOLVING THE

  SAME SUBJECT MATTER, UNLESS IT CLEARLY APPEARS THAT THE

  ARBITRATION PROCEEDINGS WERE TAINTED BY FRAUD, COLLUSION,

  UNFAIRNESS, OR SERIOUS PROCEDURAL IRREGULARITIES OR THAT THE

  AWARD WAS CLEARLY REPUGNANT TO THE PURPOSES AND POLICIES OF THE

  ACT."  INTERNATIONAL HARVESTER CO., SUPRA, AT 927 (CITATIONS

  OMITTED). 

SEE ALSO CAREY V. WESTINGHOUSE CORP., SUPRA, AT 270-272; RALEY'S INC.,
143 N.L.R.B. 256 (1963). 

THUS, NOT ONLY DOES BOARD POLICY ALLOW ARBITRATORS TO PASS ON
CONDUCT WHICH IS ALSO AN ALLEGED UNFAIR LABOR PRACTICE, BUT THE BOARD
WILL NOT CONSIDER AN UNFAIR LABOR PRACTICE CHARGE UNLESS THE ARBITRATOR
HAS PASSED ON IT.  /1/  AND EVEN THEN, THE BOARD HAS MADE QUITE CLEAR
THAT ITS STANDARD OF REVIEW IS FAR FROM DE NOVO; IT WILL LET STAND AN
ARBITRATOR'S AWARD NOT "CLEARLY REPUGNANT" TO THE ACT.  SEE, E.G.,
VIRGINIA-CAROLINA FREIGHT LINES, 155 N.L.R.B. 447 (1965), WHERE THE
BOARD REFUSED TO UPHOLD AN ARBITRATOR'S AWARD ALLOWING DISCHARGE OF AN
EMPLOYEE FOR "DISLOYALTY" WHERE THE "DISLOYALTY" CONSISTED OF SEEKING
ASSISTANCE FROM THE BOARD.  THE BOARD'S STANDARD OF REVIEW FOR
ARBITRATION AWARDS SEEMS TO BE EVEN NARROWER THAT THE SUBSTANTIAL
EVIDENCE TEST, FOR THE BOARD HAS NOT PURPORTED TO OVERTURN AWARDS
SIMPLY ON THE EVIDENCE BEFORE THE ARBITRATOR.  THE STANDARDS CHOSEN BY
THE BOARD OPERATE ENTIRELY SEPARATELY FROM THE SUBSTANTIAL-EVIDENCE
TEST.  SEE SEC. 10(E), ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 706 (1970
ED.).  IN FACT, IN INTERNATIONAL HARVESTER ITSELF, THE BOARD AGREED TO
ACCEPT THE ARBITRATOR'S AWARD "SINCE IT PLAINLY APPEARS TO US THAT THE
AWARD IS NOT PALPABLY WRONG."  TO REQUIRE A WIDER SCOPE OF EVIDENTIARY
REVIEW, SAID THE BOARD, "WOULD MEAN SUBSTITUTING THE BOARD'S JUDGMENT
FOR THAT OF THE ARBITRATOR, THEREBY DEFEATING THE PURPOSES OF THE ACT
AND THE COMMON GOAL OF NATIONAL LABOR POLICY OF ENCOURAGING THE FINAL
ADJUSTMENT OF DISPUTES, 'AS PART AND PARCEL OF THE COLLECTIVE
BARGAINING PROCESS.'"  138 N.L.R.B.,AT 929.     CONGRESS, NO LESS THAN
THE BOARD, HAS INDICATED ITS APPROVAL AND ENDORSEMENT OF THE ARBITRAL
PROCESS EVEN THOUGH THIS MAY RESULT IN CONTROVERSIES BEING ADJUDICATED
BY FORUMS OTHER THAN THE BOARD.  SECTION 203(D) OF THE LABOR MANAGEMENT
RELATIONS ACT (LMRA), 1947, 61 STAT. 154, 29 U.S.C. 173(D), DECLARES: 

  "FINAL ADJUSTMENT BY A METHOD AGREED UPON BY THE PARTIES IS

  DECLARED TO BE THE DESIRABLE METHOD FOR SETTLEMENT OF GRIEVANCE

  DISPUTES ARISING OVER THE APPLICATION OR INTERPRETATION OF AN

  EXISTING COLLECTIVE-BARGAINING AGREEMENT." 

SEE UNITED STEELWORKERS V. AMERICAN MFG. CO., 363 U.S. 564, 566-568
(1960); UNITED STEELWORKERS V. WARRIOR & GULF CO., 363 U.S. 574, 582
(1960).  SEE ALSO SEC. 10(K) OF NLRA, 29 U.S.C. 160(K).  INDEED, SEC.
301(A) OF THE LMRA, 29 U.S.C. 185(A), MAY BE CONSIDERED THE BIRTHPLACE
OF MUCH OF MODERN ARBITRATION LAW.  AS THE COURT SAID IN TEXTILE
WORKERS V. LINCOLN MILLS, 353 U.S. 448, 455 (1957):  "(SECTION 301)
EXPRESSES A FEDERAL POLICY THAT FEDERAL COURTS SHOULD ENFORCE THESE
(ARBITRATION) AGREEMENTS ON BEHALF OF OR AGAINST LABOR ORGANIZATIONS
AND THAT INDUSTRIAL PEACE CAN BE BEST OBTAINED ONLY IN THAT WAY." 

FINALLY, THIS COURT ITSELF HAS EXPRESSED THE VIEW, IN CONSTRUING
FEDERAL LAW PURSUANT TO SEC. 301(A), THAT THE POLICY OF ENCOURAGING
ARBITRATION WAS SUFFICIENT TO OVERCOME CONSIDERATIONS FAVORING PRE
EMPTION.  IN THE COURT'S WORDS, "ARBITRAL AWARDS CONSTRUING A SENIORITY
PROVISION . . . OR AWARDS CONCERNING UNFAIR LABOR PRACTICES, MAY LATER
END UP IN CONFLICT WITH BOARD RULINGS . . . . YET, AS WE HELD IN SMITH
V. EVENING NEWS ASSN. (371 U.S. 195 (1962)), THE POSSIBILITY OF
CONFLICT IS NO BARRIER TO RESORT TO A TRIBUNAL OTHER THAN THE BOARD." 
CAREY V. WESTINGHOUSE CORP., 375 U.S.,AT 272. 

THE CUMULATIVE EFFECT OF ALL OF THIS IS THAT THE JURISDICTION OF ONE
FORUM-- IN THIS CASE, ARBITRATION-- IS NOT DISPLACED SIMPLY BECAUSE THE
BOARD ALSO HAS JURISDICTION TO ACT.  THE POLICY OF PRE-EMPTION AND, TO
SOME EXTENT, OF UNIFORMITY ITSELF IS SUBORDINATED TO THE GREATER POLICY
OF ENCOURAGING ARBITRATION OF GRIEVANCES. 

DEFERENCE TO THE ARBITRAL FORUM IS NOT THE ONLY INSTANCE WHERE
ARGUABLE OR CONCEDED UNFAIR LABOR PRACTICES ARE EXCEPTED FROM THE PRE
EMPTION DOCTRINE.  IN SMITH V. EVENING NEWS ASSN., 371 U.S. 195 (1962),
THE EMPLOYEE BROUGHT SUIT UNDER SEC. 301(A) OF THE LMRA, 29 U.S.C.
185(A), TO ENFORCE THE COLLECTIVE-BARGAINING CONTRACT, ALLEGING THAT
THE EMPLOYER DISCRIMINATED AGAINST CERTAIN EMPLOYEES BECAUSE OF THEIR
UNION AFFILIATION.  THE CONDUCT, IF PROVED, WOULD NOT ONLY HAVE BEEN A
VIOLATION OF THE CONTRACT BUT WOULD CONCEDEDLY HAVE BEEN AN UNFAIR
LABOR PRACTICE AS WELL.  THE COURT EXPRESSLY REJECTED THE GARMON
DOCTRINE IN THE CONTEXT OF SUCH SUITS, HOLDING THAT, WHILE BOARD
JURISDICTION OVER UNFAIR LABOR PRACTICES WAS NOT DISPLACED WHEN THE
CONDUCT ALSO ALLEGEDLY VIOLATED THE TERMS OF THE CONTRACT, NEITHER WAS
THE JURISDICTION EXCLUSIVE.  THIS RESULT WAS CONSISTENT WITH THE
EXPRESSED INTENT OF CONGRESS THAT ENFORCEMENT OF COLLECTIVE-BARGAINING
AGREEMENTS BE "LEFT TO THE USUAL PROCESSES OF THE LAW," RATHER THAN TO
THE BOARD.  CHARLES DOWD BOX CO. V. COURTNEY, 368 U.S. 502, 511
(1962).  SEE ALSO LOCAL 174 V. LUCAS FLOUR CO., 369 U.S. 95, 101 N. 9
(1962); SOVERN, SECTION 301 AND THE PRIMARY JURISDICTION OF THE NLRB,
76 HARV.L.REV.  529 (1963). 

THESE CASES, LIKE THOSE DEALING WITH ARBITRATION, INDICATE A
WILLINGNESS TO SUBORDINATE THE GARMON DOCTRINE WHEN OTHER, MORE
PRESSING PROBLEMS ARE AT HAND.  HERE, THE POLICY TO BE SERVED WAS THAT
COLLECTIVE-BARGAINING AGREEMENTS BE ENFORCED BY THE JUDICIARY,
NOTWITHSTANDING CONCURRENT BOARD JURISDICTION TO REGULATE THAT ACTIVITY
WHICH WAS ALSO AN UNFAIR LABOR PRACTICE.  TO BE SURE, THE COURT HAS
REQUIRED THAT, IN THE INTERESTS OF UNIFORM DEVELOPMENT OF THE LAW,
STATE COURTS MUST APPLY FEDERAL LAW.  LUCAS FLOUR, SUPRA, AT 102-104. 
BUT THE COURT WAS NO LESS AWARE IN SMITH THAN IT HAD BEEN NINE YEARS
EARLIER IN GARNER V. TEAMSTERS UNION, 346 U.S. 485, 490-491 (1953),
THAT:  "A MULTIPLICITY OF TRIBUNALS AND A DIVERSITY OF PROCEDURES ARE
QUITE AS APT TO PRODUCE INCOMPATIBLE OR CONFLICTING ADJUDICATIONS AS
ARE DIFFERENT RULES OF SUBSTANTIVE LAW."  THE POINT IS SIMPLY THAT THE
PERCEIVED INTEREST IN JUDICIAL ADJUDICATION OF CONTRACTUAL DISPUTES WAS
MORE IMPORTANT THAN THE INTERESTS OF UNIFORMITY THAT WOULD BE PROMOTED
BY PRE-EMPTION. 

IN VACA V. SIPES, 386 U.S. 171 (1967), THIS COURT REFUSED TO APPLY
THE PRE-EMPTION DOCTRINE TO SUITS CHARGING A BREACH OF THE UNION'S DUTY
OF FAIR REPRESENTATION, EVEN THOUGH THE BOARD HAD HELD THAT SUCH A
BREACH WAS ALSO AN UNFAIR LABOR PRACTICE.  MIRANDA FUEL CO., 140
N.L.R.B. 181 (1962).  THOUGH ONE REASON FOR THIS RESULT WAS THAT THE
DUTY OF FAIR REPRESENTATION HAD BEEN FOR THE MOST PART DEVELOPED BY THE
JUDICIARY RATHER THAN THE BOARD, THE OTHER REASON WAS CONCERN OVER THE
POSSIBILITY OF DENYING A HEARING TO AN EMPLOYEE WHO FELT HIS INDIVIDUAL
INTERESTS HAD BEEN UNFAIRLY SUBORDINATED BY THE UNION.  THE COURT
EXPRESSED FEAR THAT, WERE PRE-EMPTION THE RULE, "THE INDIVIDUAL
EMPLOYEE INJURED BY ARBITRARY OR DISCRIMINATORY UNION CONDUCT COULD NO
LONGER BE ASSURED OF IMPARTIAL REVIEW OF HIS COMPLAINT, SINCE THE
BOARD'S GENERAL COUNSEL HAS UNREVIEWABLE DISCRETION TO REFUSE TO
INSTITUTE AN UNFAIR LABOR PRACTICE COMPLAINT."  386 U.S.,AT 182. 

CONGRESS HAS EXPRESSLY GIVEN A FEDERAL CAUSE OF ACTION FOR DAMAGES
TO PARTIES INJURED BY SECONDARY UNION ACTIVITY UNDER SEC. 8(B)(4),
WHICH MAY BE ENFORCED BY SUITS BROUGHT IN EITHER STATE OR FEDERAL
COURT.  29 U.S.C. 187(B).  THE UNION'S ACTIVITY GIVING RISE TO
LIABILITY IS OF NECESSITY AN UNFAIR LABOR PRACTICE, BUT CONGRESS
ELECTED TO HAVE THE QUESTION ADJUDICATED IN COURT, EVEN THOUGH THE
ACTIVITY MIGHT BE THE SUBJECT OF A PARALLEL AND POSSIBLY INCONSISTENT
DETERMINATION BY THE BOARD.  SEE TEAMSTERS UNION V. MORTON, 377 U.S.
252, 256 (1964).  OF COURSE FEDERAL LAW GOVERNS SUCH CASES, AT LEAST
WHERE THE UNION ACTIVITY IS NOT VIOLENT; AND PRESUMABLY THE DECISIONS
OF THE NLRB ON SECONDARY ACTIVITY WOULD BE CONSULTED FOR GUIDANCE.  BUT
THE CONGRESS CHOSE NOT TO HAVE THE BOARD HEAR SUCH SUITS, EVEN THOUGH
THE BOARD IS PROBABLY FAR MORE FAMILIAR THAN THE COURTS WITH THE
VARIETY OF PROBLEMS POSED BY SECONDARY ACTIVITY. 

THE PHENOMENON OF THE NO-MAN'S LAND AND THE CONCLUSIONS THAT CAN BE
DRAWN ON PRE-EMPTION ARE ALSO INSTRUCTIVE, FOR THEY CAST SUBSTANTIAL
DOUBT NOT ONLY ON THE INTENT OF CONGRESS BUT ON THE VERY FOUNDATIONS OF
GARMON ITSELF.  IN GUSS V. UTAH LABOR RELATIONS BOARD 353 U.S. 1
(1957), THE COURT HELD THAT STATES WERE POWERLESS TO INTERVENE IN LABOR
DISPUTES WHERE THE NLRB POSSESSED JURISDICTION, EVEN THOUGH THE BOARD
HAD REFUSED TO ASSERT ITS JURISDICTION BECAUSE OF THE "PREDOMINANTLY
LOCAL" CHARACTER OF THE COMPANY'S OPERATIONS.  THE COURT CONCEDED THAT
THIS WOULD LIKELY PRODUCE "A VAST NO-MAN'S-LAND, SUBJECT TO REGULATION
BY NO AGENCY OR COURT," ID., AT 10, BUT INSISTED THIS WAS THE INTENT OF
THE CONGRESS AND THAT CONGRESS COULD CHANGE THE SITUATION IF IT
DESIRED.  CONGRESS DID CHANGE THE SITUATION SOON THEREAFTER, PROVIDING
THAT THE STATES MAY ASSERT JURISDICTION OVER ANY DISPUTE WHERE THE
BOARD DECLINES TO DO SO BECAUSE OF THE INSUBSTANTIAL EFFECT ON
INTERSTATE COMMERCE.  SEC. 14(C) OF NLRA, AS AMENDED, 73 STAT. 541, 29
U.S.C. 164(C).  THE PURPOSE OF THIS SECTION WAS TO FILL THE CHASM
CREATED BY GUSS.  SEE, E.G., 105 CONG.REC.  6430 (SEN. GOLDWATER).  THE
SITUATION WAS ROUNDLY CONDEMNED BY LEGISLATORS, WHO CALLED IT VARIOUSLY
"A NO MAN'S LAND, IN WHICH THESE ARE GRIEVOUS WRONGS AND NO REMEDY
UNDER AMERICAN JURISPRUDENCE AS OF THIS TIME," ID., AT 6413 (SEN.
MCCLELLAN), AND "A STENCH IN THE NOSTRILS OF JUSTICE."  ID., AT 6544
(SEN. ERVIN).  IN SHORT, THE REACTION TO GUSS INDICATES THAT THIS COURT
WAS QUITE WRONG IN DETERMINING THAT THE NO-MAN'S LAND WAS JUSTIFIED IN
THE NAME OF CONGRESSIONAL INTENT TO ACHIEVE UNIFORMITY IN LAW AND
ADMINISTRATION. 

OF SOME INTEREST IS THE FACT THAT GARMON WAS BASED UPON, AND
EXPANDED TO A SIGNIFICANT DEGREE, THE RATIONALE OF GUSS: 

"IT FOLLOWS (FROM GUSS) THAT THE FAILURE OF THE BOARD TO DEFINE THE
LEGAL SIGNIFICANCE UNDER THE ACT OF A PARTICULAR ACTIVITY DOES NOT GIVE
THE STATES THE POWER TO ACT.  IN THE ABSENCE OF THE BOARD'S CLEAR
DETERMINATION THAT AN ACTIVITY IS NEITHER PROTECTED NOR PROHIBITED OR
OF COMPELLING PRECEDENT APPLIED TO ESSENTIALLY UNDISPUTED FACTS, IT IS
NOT FOR THIS COURT TO DECIDE WHETHER SUCH ACTIVITIES ARE SUBJECT TO
STATE JURISDICTION.  THE WITHDRAWAL OF THIS NARROW AREA FROM POSSIBLE
STATE ACTIVITY FOLLOWS FROM OUR DECISIONS IN WEBER AND GUSS."  359
U.S.,AT 246.  YET FIVE MONTHS AFTER THE ANNOUNCEMENT OF THE GARMON
DECISION, CONGRESS IN EFFECT OVERRULED GUSS AND THUS AT LEAST COUNSELED
CAUTION IN APPLYING THE GARMON RATIONALE. 

THE PROVISIONS OF SEC. 14(C), HOWEVER, DO NOT ALLOW STATE
JURISDICTION WHERE THE BOARD REFUSES TO ASSERT JURISDICTION FOR
"POLICY" REASONS, AS WHERE THE GENERAL COUNSEL REFUSES TO ISSUE A
COMPLAINT BECAUSE HE IS NOT CONVINCED ON THE MERITS OF THE PLAINTIFF'S
CAUSE.  IN SUCH A SITUATION, GARMON PRECLUDES STATE ACTION (OR ACTION
BY FEDERAL COURTS) BECAUSE THE BOARD'S ACTION DOES NOT DEFINE THE
ACTIVITY "WITH UNCLOUDED LEGAL SIGNIFICANCE."  359 U.S.,AT 246.  IN
1965, THE COURT EASED THE HARSH STRICTURES OF GARMON IN THIS AREA BY
HOLDING THAT REASONS ARTICULATED BY THE GENERAL COUNSEL FOR HIS REFUSAL
TO ISSUE A COMPLAINT WOULD OPEN THE WAY FOR STATE ACTION IF THE
EXPLANATIONS "SQUARELY DEFINE THE NATURE OF THE ACTIVITY" SOUGHT TO BE
SUBJECTED TO BOARD CONSIDERATION.  HANNA MINING CO. V. MARINE ENGINEERS
BENEFICIAL ASSN., 382 U.S. 181, 192 (1965). 

EVEN THOUGH FEDERAL LAW IS PERVASIVE IN LABOR-MANAGEMENT RELATIONS,
STATE LAW IS PRESERVED IN SOME RESPECTS.  AT FIRST BLUSH, IT MIGHT SEEM
THAT THESE MATTERS PRESENT NO PROBLEMS OF UNIFORMITY, FOR THERE IS NO
NATIONAL LAW BEING APPLIED.  BUT THE SIMPLE FACT THAT CONGRESS AND THIS
COURT HAVE DEFERRED TO THE STATES IN THESE AREAS INDICATES A
SUBORDINATION OF THE INTEREST IN UNIFORMITY TO THE INTERESTS OF THE
STATES.  BY MAKING THE MATTER ONE OF STATE LAW, CONGRESS HAS NOT ONLY
AUTHORIZED MULTIFORMITY ON THE SUBJECT, BUT PRACTICALLY GUARANTEED IT.
THE RESULTS, AS FAR AS UNIFORMITY IS CONCERNED, ARE NO DIFFERENT THAN
IF THE STATES APPLIED FEDERAL LAW WITH ABANDON.  FOR EXAMPLE, THE
CONTROVERSIAL SEC. 14(B) OF NLRA, 61 STAT. 151, 29 U.S.C. 164(B), HAS
AUTHORIZED STATES TO CHOOSE FOR THEMSELVES WHETHER TO REQUIRE OR PERMIT
UNION SHOPS.  THIS ALLOWS THE STATES TO REGULATE UNION OR AGENCY SHOP
CLAUSES, ALGOMA PLYWOOD CO. V. WISCONSIN BOARD, 336 U.S. 301 (1949),
RETAIL CLERKS V. SCHERMERHORN, 373 U.S. 746, 375 U.S. 96 (1963), SO
THAT UNION INSISTENCE ON A SECURITY AGREEMENT AS PART OF A COLLECTIVE
BARGAINING AGREEMENT MAY BE PROHIBITED IN ONE STATE AND PROTECTED OR
EVEN ENCOURAGED IN ANOTHER.  THE POLICY CHOICE MADE BY CONGRESS ON THIS
MATTER NECESSARILY SUBORDINATED UNIFORMITY IN NATIONAL LAW TO WHAT WERE
PERCEIVED TO BE OVERRIDING CONCERNS OF THE STATES. 

OTHER EXAMPLES ARE FAMILIAR.  IN UNITED CONSTRUCTION WORKERS V.
LABURNUM CONSTRUCTION CORP., 347 U.S. 656 (1954), THE COURT UPHELD A
STATE COURT DAMAGE AWARD FOR INJURIES SUFFERED AS A RESULT OF THE
TORTIOUS CONDUCT OF THE UNION'S AGENT, WHO THREATENED VIOLENCE IF THE
COMPANY'S EMPLOYEES DID NOT JOIN THE UNION.  THE COURT ASSUMED THAT THE
UNION CONDUCT WAS AN UNFAIR LABOR PRACTICE, SEEKING AS IT DID TO
INTERFERE WITH THE EMPLOYEE'S SEC. 7 RIGHT NOT TO JOIN A LABOR UNION. 
BUT IT NOTED THE INADEQUACY OF THE EXISTING BOARD PROCEDURE TO PROVIDE
SUITABLE REMEDIES FOR THOSE INJURED AS A RESULT OF THE CONDUCT, AND WAS
IMPRESSED BY THE FACT THAT TO HOLD THE STATE COURTS PRE-EMPTED "WILL,
IN EFFECT, GRANT PETITIONERS IMMUNITY FROM LIABILITY FOR THEIR TORTIOUS
CONDUCT."  THE COURT FOUND "NO SUBSTANTIAL REASON FOR REACHING SUCH A
RESULT."  347 U.S.,AT 664.  ACCORD, AUTOMOBILE WORKERS V. RUSSELL, 356
U.S. 634 (1958); LINN V. PLANT GUARD WORKERS, 383 U.S. 53, 61-62
(1966).  AGAIN, IT IS ENTIRELY POSSIBLE THAT SOME STATES WILL REQUIRE A
GREATER SHOWING OF VIOLENCE THAN OTHERS BEFORE AWARDING DAMAGES, SO
THAT BEHAVIOR THAT VIOLENTLY SEEKS TO COERCE UNION MEMBERSHIP WILL BE
PROHIBITED IN ONE STATE AND ALLOWED IN ANOTHER.  BUT THE INTEREST IN
UNIFORMITY IS SUBORDINATED TO THE LARGER INTERESTS THAT PERSONS INJURED
BY SUCH VIOLENCE HAVE PRESERVED TO THEM WHATEVER REMEDIES STATE LAW MAY
AUTHORIZE. 

TO SUMMARIZE, THE "RULE" OF UNIFORMITY THAT THE COURT INVOKES TODAY
IS AT BEST A TATTERED ONE, AND AT WORST LITTLE MORE THAN A MYTH.  IN
THE NAME OF NATIONAL LABOR POLICY, PARTIES ARE ENCOURAGED BY THE BOARD,
BY CONGRESS, AND BY THIS COURT TO SEEK OTHER FORUMS IF THE UNFAIR LABOR
PRACTICE ARISES IN AN ARBITRABLE DISPUTE, VIOLATES THE COLLECTIVE
BARGAINING AGREEMENT, OR OTHERWISE QUALIFIES AS ONE OF THE EXCEPTIONS
MENTIONED.  /2/ 

UNTIL TODAY, MACHINISTS V. GONZALES, SUPRA, HAD BEEN THOUGHT TO
STAND FOR THE PROPOSITION THAT GARMON DID NOT REACH CASES "WHEN THE
POSSIBILITY OF CONFLICT WITH FEDERAL POLICY IS . . . REMOTE."  356
U.S.,AT 621.  BUT WITH TODAY'S EMASCULATION OF GONZALES, THERE IS
PROBABLY LITTLE THAT REMAINS OF IT.  LINN V. PLANT GUARD WORKERS, 383
U.S. 53 (1966), WAS OSTENSIBLY BASED IN PART ON THIS RATIONALE, ID., AT
59-61, BUT IT WAS EQUALLY BOTTOMED ON LABURNUM CONSTRUCTION AND OTHER
CASES UPHOLDING STATE POWER TO REGULATE MATTERS OF "OVERRIDING STATE
INTEREST" SUCH AS VIOLENCE OR, AS IN LINN, DEFAMATION.  I SEE NO REASON
WHY THIS EXCEPTION HAS NOT, FOR ALL PRACTICAL PURPOSES, THUS EXPIRED. 
IN MY VIEW, HOWEVER, AND FOR THE REASONS SET FORTH IN PART II, GONZALES
CONTROLS THIS CASE.  /3/             II 

THERE ARE TWO BROAD, BUT OVERLAPPING, RELATIONSHIPS AMONG EMPLOYERS,
LABOR UNIONS, AND UNION MEMBERS.  ON THE ONE HAND, THERE IS THE
RELATIONSHIP BETWEEN EMPLOYER AND EMPLOYEE, GENERALLY TERMED LABOR
MANAGEMENT RELATIONS, WHICH INVOLVES THE UNION AT VIRTUALLY EVERY STEP,
WHERE THE EMPLOYEES HAVE CHOSEN TO BE REPRESENTED BY ONE.  THE OTHER
RELATIONSHIP, UNION-MEMBER RELATIONS, INVOLVES THE AFFAIRS BETWEEN THE
UNION AND THE EMPLOYEE AS UNION MEMBER. 

IN ENACTING THE NLRA IN 1935, 49 STAT. 449, CONGRESS DEFINED AND
PROHIBITED UNFAIR LABOR PRACTICES BY EMPLOYERS.  EXPERIENCE UNDER THE
ACT SHOWED THAT LABOR ORGANIZATIONS WERE QUITE AS CAPABLE AS EMPLOYERS
OF PERNICIOUS BEHAVIOR, AND IN 1947 CONGRESS ENACTED THE LABOR
MANAGEMENT RELATIONS ACT, 61 STAT. 136, WHICH, AMONG OTHER THINGS,
PROTECTED EMPLOYEES AND EMPLOYERS AGAINST CERTAIN UNFAIR LABOR
PRACTICES BY LABOR ORGANIZATIONS THAT WERE DEFINED BY THE ACT. 
PROTECTION GIVEN EMPLOYEES, WHETHER UNION MEMBERS OR NOT, WAS PRIMARILY
JOB RELATED.  ALTHOUGH UNIONS WERE FORBIDDEN TO RESTRAIN OR COERCE
EMPLOYEES IN THE EXERCISE OF THEIR SEC. 7 RIGHTS, CONGRESS EXPRESSLY
NEGATED ANY INTENTION TO "IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO
PRESCRIBE ITS OWN RULES WITH RESPECT TO THE ACQUISITION OR RETENTION OF
MEMBERSHIP . . . ."  29 U.S.C. 158(B)(1).  THE UNMISTAKABLE FOCUS OF
BOTH THE NLRA AND THE LMRA IS ON LABOR-MANAGEMENT RELATIONS, RATHER
THAN UNION-MEMBER RELATIONS, AS SUCH. 

DURING THE 1950'S THERE CAME TO LIGHT VARIOUS PATTERNS OF UNION
ABUSE OF POWER, AND IN THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE
ACT OF 1959 (LMRDA), 73 STAT. 519, CONGRESS ACTED TO CORRECT THESE
EVILS BY DIRECTLY ADDRESSING ITSELF TO SOME ASPECTS OF UNION-MEMBER
AFFAIRS.  THE LMRDA PROVIDES A "BILL OR RIGHTS," WHICH GIVES UNION
MEMBERS THE RIGHT TO PARTICIPATE IN UNION AFFAIRS, TO SPEAK FREELY, AND
TO BE PROTECTED FROM ARBITRARY DISCIPLINE.  IT ALSO IMPOSES CERTAIN
REQUIREMENTS ON UNIONS TO DISCLOSE THEIR FINANCIAL AFFAIRS, REGULATES
UNION ELECTIONS, AND SAFEGUARDS LABOR ORGANIZATIONS AGAINST
UNSCRUPULOUS AGENTS OR OFFICERS.  THROUGHOUT THE ACT ARE PROVISIONS FOR
CIVIL OR CRIMINAL ENFORCEMENT OF THE ACT IN FEDERAL COURTS.  SEE 73
STAT. 523, 525, 529-530, 531, 534, 536, 537, 539.  BUT IN A CRUCIAL
DEPARTURE FROM WHAT THE COURT HAS HELD THE LEGISLATIVE INTENTION WAS IN
REGULATING LABOR-MANAGEMENT RELATIONS, THE CONGRESS DECLARED: 

     "EXCEPT AS EXPLICITLY PROVIDED TO THE CONTRARY, NOTHING IN
THIS

  ACT SHALL REDUCE OR LIMIT THE RESPONSIBILITIES OF ANY LABOR

  ORGANIZATION OR ANY OFFICER . . . OR OTHER REPRESENTATIVE OF A

  LABOR ORGANIZATION . . . UNDER ANY OTHER FEDERAL LAW OR UNDER THE

LAWS OF ANY STATE, AND, EXCEPT AS EXPLICITLY PROVIDED TO THE

  CONTRARY, NOTHING IN THIS ACT SHALL TAKE AWAY ANY RIGHT OR BAR

  ANY REMEDY TO WHICH MEMBERS OF A LABOR ORGANIZATION ARE ENTLTLED

  UNDER SUCH OTHER FEDERAL LAW OR LAW OF ANY STATE."  SEC. 603(A),

  73 STAT. 540, 29 U.S.C. 523(A). 

IF THIS WERE NOT CLARITY ENOUGH, CONGRESS ALSO PROVIDED IN TITLE I, THE
"BILL OF RIGHTS": 

     "NOTHING CONTAINED IN THIS TITLE SHALL LIMIT THE RIGHTS AND

  REMEDIES OF ANY MEMBER OF A LABOR ORGANIZATION UNDER ANY STATE OR

  FEDERAL LAW OR BEFORE ANY COURT OR OTHER TRIBUNAL, OR UNDER THE

  CONSTITUTION AND BYLAWS OF ANY LABOR ORGANIZATION."  SEC. 103, 73

  STAT. 523, 29 U.S.C. 413. 

BEYOND ANY DOUBT WHATEVER, ALTHOUGH CONGRESS DIRECTLY IMPOSED SOME FAR
REACHING FEDERAL PROHIBITIONS ON UNION CONDUCT, IT SPECIFICALLY DENIED
ANY PRE-EMPTION OF RIGHTS OR REMEDIES CREATED BY EITHER STATE LAW OR
UNION CONSTITUTIONS AND BYLAWS.  THUS, AS TO UNION-MEMBER RELATIONS,
ANY PARALLEL RIGHTS CREATED BY THE STATES, EITHER DIRECTLY OR
INDIRECTLY THROUGH ENFORCEMENT OF UNION CONSTITUTIONS BY BYLAWS, WERE
TO STAND AT FULL STRENGTH.  CONGRESS BACKED UP THIS POWER BY REQUIRING
UNIONS TO MAKE AVAILABLE TO MEMBERS THE CONSTITUTION AND BYLAWS OF THE
UNION, AS WELL AS FINANCIAL INFORMATION.  SEC. 201, 73 STAT. 524, 29
U.S.C. 431. 

THE LMRDA WAS A MAJOR EFFORT BY CONGRESS TO REGULATE THE RIGHTS AND
RESPONSIBILITIES OF THE UNION-MEMBER RELATIONSHIP AS SUCH, BUT, AS
SHOWN BY SEC. 603(A), IT WAS CLEARLY NOT AN ATTEMPT TO MAKE FEDERAL LAW
THE EXCLUSIVE ARBITER OF THIS RELATIONSHIP.  /4/  IN GONZALES THE COURT
NOTED THAT "THE PROTECTION OF UNION MEMBERS IN THEIR RIGHTS AS MEMBERS
FROM ARBITRARY CONDUCT BY UNIONS AND UNION OFFICERS HAS NOT BEEN
UNDERTAKEN BY FEDERAL LAW . . . ."  356 U.S.,AT 620.  THOUGH IN THE
FOLLOWING YEAR THE LMRDA CERTAINLY "UNDERTOOK" TO PROTECT MEMBERS IN
IMPORTANT RESPECTS, IT SPECIFICALLY DISAVOWED ANY NOTION OF PRE-EMPTING
STATE LAW AND THUS LEFT UNIMPAIRED THE GONZALES CONCLUSION THAT STATE
LAW HAS A PROPER ROLE IN UNION-MEMBER DISPUTES.  /5/ 

IF, AS I HAVE ATTEMPTED TO SHOW IN PART I, THE BOARD IS NOT THE SOLE
ARBITER EVEN OF FEDERAL LAW AND IF, AS I HAVE ALSO ATTEMPTED TO SHOW,
THERE IS ROOM FOR THE OPERATION OF STATE LAW IN CERTAIN AREAS OF EVEN
LABOR-MANAGEMENT RELATIONS, THEN TO ME THE CONCLUSION IS INESCAPABLE
THAT IN THE AREA OF UNION-MEMBER RELATIONS, WHICH CONGRESS HAS NOT
SOUGHT TO DEAL WITH COMPREHENSIVELY AND WHERE CONGRESS HAS PRESERVED
STATE REMEDIES FOR THE VERY CONDUCT PROHIBITED BY FEDERAL LAW, WE
SHOULD BE VERY CAREFUL ABOUT ASSUMING CONGRESSIONAL INTENTION TO BRUSH
ASIDE LOCAL RIGHTS AND REMEDIES.  INDEED, FAR FROM PRE-EMPTING STATE
LAW, ONE OF THE MAJOR THRUSTS OF THE LMRDA WAS TO ENFORCE STATE RIGHTS
AND REMEDIES.  AT THE VERY LEAST, THE INQUIRY PRESENTED BY THIS OR ANY
OTHER CASE DEALING WITH UNION-MEMBER RELATIONS CANNOT BE ANSWERED BY
AUTOMATIC INVOCATION OF THE PURPORTED RULE OF PRE-EMPTION IN THE NAME
OF UNIFORMITY. 

LIKE MANY STATES, IDAHO CONSTRUES THE UNION-MEMBER RELATION TO BE A
CONTRACTUAL ONE, DEFINED BY THE CONSTITUTION AND BYLAWS OF THE UNION. 
AS SUCH, THE CONTRACTS ARE ENFORCEABLE THROUGH THE STATE'S TRADITIONAL
COMMON-LAW JURISDICTION.  HERE, LOCKRIDGE WAS DISCHARGED FOR ALLEGED
NONPAYMENT OF DUES IN ACCORDANCE WITH THE UNION CONSTITUTION AND
BROUGHT SUIT ALLEGING THAT HE HAD IN FACT NOT BEEN UNDULY TARDY AND
THAT THE UNION'S ACTION WAS A BREACH OF THE CONTRACT.  THE FACE OF THE
COMPLAINT DID NOT IMPLICATE FEDERAL LAW.  IF THE IDAHO COURT WERE
ALLOWED TO PROCEED, IT WOULD NOT HAVE PURPORTED TO ADJUDICATE AN UNFAIR
LABOR PRACTICE BY REFERENCE TO FEDERAL LAW BUT, IF IT FOUND THE CONDUCT
UNPROTECTED BY FEDERAL LAW, SEE PART III, INFRA, WOULD HAVE ENFORCED
RIGHTS AND OBLIGATIONS CREATED BY THE UNION CONSTITUTION.  THE COURT
NEVERTHELESS HOLDS THAT BECAUSE THE UNION CONDUCT ALLEGED IN THE
COMPLAINT ALSO CONSTITUTES, OR ARGUABLY SO, AN UNFAIR LABOR PRACTICE,
THE CONTROVERSY MUST BE ADJUDICATED BY THE NATIONAL LABOR RELATIONS
BOARD.  I FIND LITTLE IN THE COURT'S OPINION TO CONVINCE ME THAT
CONGRESS INTENDED THIS RESULT.  WITH ALL RESPECT, I AGREE WITH GONZALES
THAT THIS RESULT IS AT BEST "ABSTRACTLY JUSTIFIABLE, AS A MATTER OF
WOODEN LOGIC."  356 U.S.,AT 619. 

FURTHERMORE, THIS COURT'S DECISION IN SMITH V. EVENING NEWS, SUPRA,
SEEMS CONTRARY TO THE RESULT REACHED TODAY.  SMITH HELD THAT SUITS TO
ENFORCE THE COLLECTIVE-BARGAINING AGREEMENT COULD BE BROUGHT IN STATE
OR FEDERAL COURTS UNDER SEC. 301 NOTWITHSTANDING THE FACT THAT THE
CONDUCT ALLEGED WOULD ALSO CONSTITUTE AN UNFAIR LABOR PRACTICE.  THUS,
COURTS ENFORCING SMITH-TYPE ACTIONS ARE DEALING IN CONTRACT RIGHTS, NOT
UNFAIR LABOR PRACTICES.  THERE SEEMS LITTLE REASON WHY SUITS FOR BREACH
OF THE UNION-MEMBER CONTRACT CANNOT SIMILARLY BE BROUGHT IN STATE
COURTS (OR IN FEDERAL COURTS IN DIVERSITY ACTIONS), NOTWITHSTANDING THE
ALTERNATE NATURE OF THE BEHAVIOR AS AN UNFAIR LABOR PRACTICE. 

INDEED, SEC. 301 ACTIONS ARE GOVERNED BY FEDERAL LAW AND EVEN HERE
THE NLRB DOES NOT PRE-EMPT THE COURTS.  THERE IS EVEN LESS
JUSTIFICATION FOR PRECLUDING ACTIONS UNDER STATE LAW IN THE AREA OF
UNION-MEMBER RELATIONS WHICH CONGRESS HAS EXPRESSLY SAID IS NOT AN
EXCLUSIVELY FEDERAL DOMAIN. 

I FIND NO MERIT IN THE ARGUMENT THAT CONGRESS PASSED SEC. 301 THOUGH
RECOGNIZING THAT SOME SEC. 301 SUITS WOULD INVOLVE UNFAIR LABOR
PRACTICES, BUT, BY NOT PROVIDING ANALOGOUS FEDERAL COURT JURISDICTION
FOR BREACHES OF UNION CONSTITUTIONS, MANIFESTED ITS EXPECTATION THAT
BREACHES WHICH ALSO INVOLVE UNFAIR LABOR PRACTICES SHOULD BE A MATTER
FOR BOARD JURISDICTION.  SOME READILY IMAGINABLE UNION ACTIONS
PROHIBITED BY TITLE I OF THE LMRDA COULD BE UNFAIR LABOR PRACTICES AS
WELL, BUT BY PROVIDING FOR FEDERAL SUIT TO ENFORCE THE REMEDIES, AND
LEAVING STATE REMEDIES UNTOUCHED, CONGRESS CERTAINLY DISAVOWED, AS
CLEARLY AS IF IT HAD SAID SO EXPLICITLY, ANY NOTION THAT THE BOARD WAS
TO PRE-EMPT OTHER FORUMS IN PASSING ON STATUTORY BREACHES WHICH WERE
ALSO UNFAIR LABOR PRACTICES.  ARBITRATION OF GRIEVANCES IS A SIMILAR
SITUATION, SINCE ARBITRATORS, RATHER THAN THE BOARD, CONSTRUE AND
ENFORCE CONTRACTUAL RIGHTS THAT ARE BREACHED IN THE COMMISSION OF
PUTATIVE UNFAIR LABOR PRACTICES.  SEE PART I, SUPRA.

        III 

I HAVE ATTEMPTED TO SHOW IN PART II THAT INVOCATION OF GARMON-TYPE
PRE-EMPTION IS INAPPROPRIATE WHERE A UNION MEMBER BRINGS SUIT AGAINST A
UNION FOR BREACH OF THE UNION'S CONSTITUTION OR BYLAWS.  WHOLLY APART
FROM SUCH CONSIDERATIONS, HOWEVER, I CANNOT AGREE WITH THE OPINION OF
THE COURT BECAUSE IT REAFFIRMS THE GARMON DOCTRINE AS APPLIED TO
CONDUCT ARGUABLY PROTECTED UNDER SEC. 7, AS WELL AS TO THAT ARGUABLY
PROHIBITED UNDER SEC. 8.  THE ESSENTIAL DIFFERENCE, FOR PRESENT
PURPOSES, BETWEEN ACTIVITY THAT IS ARGUABLY PROHIBITED AND THAT WHICH
IS ARGUABLY PROTECTED IS THAT A HEARING ON THE LATTER ACTIVITY IS
VIRTUALLY IMPOSSIBLE UNLESS ONE DELIBERATELY COMMITS AN UNFAIR LABOR
PRACTICE.  IN A TYPICAL UNFAIR PRACTICE CASE, BY ALLEGING CONDUCT
ARGUABLY PROHIBITED BY SEC. 8 THE CHARGING PARTY CAN AT LEAST PRESENT
THE GENERAL COUNSEL WITH THE FACTS, AND IF THE GENERAL COUNSEL ISSUES A
COMPLAINT, THE CHARGING PARTY CAN PRESENT THE BOARD WITH THE FACTS AND
ARGUMENTS TO SUPPORT THE CLAIM.  BUT FOR ACTIVITY THAT IS ARGUABLY
PROTECTED, THERE IS NO PROVISION FOR AN AUTHORITATIVE DECISION BY THE
BOARD IN THE FIRST INSTANCE; YET THE GARMON RULE BLINDLY PRE-EMPTS
OTHER TRIBUNALS.  LONGSHOREMEN'S ASSN. V. ARIADNE SHIPPING CO., 397
U.S. 195, 201 (1970) (WHITE, J., CONCURRING).  THE ASSISTANT GENERAL
COUNSEL OF THE NLRB HAS DESCRIBED THE SITUATION: 

"(APPLICATION OF THE GARMON 'ARGUABLY PROTECTED' TEST IN THIS
SITUATION LEAVES THE EMPLOYER'S INTERESTS IN AN UNSATISFACTORY
CONDITION.  THE EMPLOYER CANNOT OBTAIN RELIEF FROM THE STATE COURT WITH
RESPECT TO ACTIVITY THAT MAY IN FACT NOT BE PROTECTED BY SECTION 7 OF
THE ACT, AND THE ONLY WAY THAT HE CAN OBTAIN A BOARD DETERMINATION OF
THAT QUESTION IS BY RESORTING TO SELF-HELP MEASURES; IF HE GUESSES
WRONG, THIS MAY SUBJECT HIM NOT ONLY TO A BOARD REMEDY BUT ALSO TO TORT
SUITS.  THAT RESULT IS AS UNDESIRABLE AS THE 'NO-MAN'S LAND' CREATED BY
THE HOLDING IN GUSS . . . ."  (FOOTNOTES OMITTED.)  COME, FEDERAL
PREEMPTION OF LABOR-MANAGEMENT RELATIONS:  CURRENT PROBLEMS IN THE
APPLICATION OF GARMON, 56 VA.L.REV.  1435, 1444 (1970). 

I BELIEVE THAT THE CONSIDERATIONS THAT JUSTIFY EXCEPTIONS TO THE
RULE OF UNIFORMITY APPLY WITH GREATER FORCE TO SEC. 7 SITUATIONS AND
FURTHER, THAT BASIC CONCEPTS OF FUNDAMENTAL FAIRNESS, REGARDLESS OF
THEIR EFFECT ON THE MODEL OF UNIFORMITY, COUNSEL AGAINST ANY RULE THAT
SO INFLEXIBLY BARS A HEARING. 

        A 

THE ASSISTANT GENERAL COUNSEL OF THE BOARD HAS STATED THE PARADOX
SUCCINCTLY: 

"WHEN A UNION ENGAGES IN PEACEFUL PICKETING THAT IS NOT PROHIBITED
BY SECTION 8 OF THE NLRA, A STATE COURT CANNOT ENJOIN THE PICKETING AS
A TRESPASS BECAUSE THE ACTIVITY IS 'ARGUABLY PROTECTED' BY SECTION 7. 
BUT SINCE THERE IS NO UNFAIR LABOR PRACTICE, THE EMPLOYER CANNOT BRING
THE QUESTION BEFORE THE BOARD FOR ADJUDICATION.  THE ONLY WAY FOR HIM
TO GET A BOARD RULING AS TO WHETHER THE PICKETING IS ACTUALLY PROTECTED
IS TO RESORT TO 'SELF-HELP' TO EXPEL THE PICKETS, THEREBY FORCING THE
UNION TO FILE UNFAIR LABOR PRACTICE CHARGES TO WHICH HE CAN RAISE THE
STATUS OF THE PICKETING AS A DEFENSE."  COME, SUPRA, AT 1437-1438. 
THOUGH THE MOST NATURAL ARENA FOR THIS CONFLICT OCCURS WHEN PICKETERS
TRESPASS ON PRIVATE PROPERTY, SEE TAGGART V. WEINACKER'S, INC., 397
U.S. 223, 227 (1970) (BURGER, C. J., CONCURRING), BROOMFIELD,
PREEMPTIVE FEDERAL JURISDICTION OVER CONCERTED TRESPASSORY UNION
ACTIVITY, 83 HARV.L.REV.  552 (1970), OTHER INSTANCES INCLUDE "QUICKIE"
STRIKES OR SLOWDOWNS, SEE NLRB V. HOLCOMBE, 325 F.2D 508 (CA5 1963),
OR EMPLOYEES' INACCURATE COMPLAINTS TO STATE OFFICIALS ABOUT SANITARY
CONDITIONS IN THE PLANT, WALLS MFG. CO. V. NLRB, 116 U.S.APP.D.C. 140,
321 F.2D 753 (1963), OR COLLECTIVE ACTIVITY DESIGNED TO PERSUADE THE
EMPLOYER TO HIRE NEGROES, NLRB V. TANNER MOTOR LIVERY, LTD., 349 F.2D 1
(CA9 1965), OR FAILURE TO PARTICIPATE IN A UNION CHECK-OFF, RADIO
OFFICERS' UNION V. NLRB, 347 U.S. 17, 24-28, 39-42 (1954). 

THERE SEEMS LITTLE POINT IN A DOCTRINE THAT, IN THE NAME OF NATIONAL
POLICY, ENCOURAGES THE COMMISSION OF UNFAIR LABOR PRACTICES, THE EVILS
WHICH ABOVE ALL ELSE WERE THE OBJECT OF THE ACT.  SURELY THE POLICY OF
SEEKING UNIFORMITY IN THE REGULATION OF LABOR PRACTICES MUST BE GIVEN
CLOSER SCRUTINY WHEN IT LEADS TO THE ALTERNATIVE "SOLUTIONS" OF DENYING
THE AGGRIEVED PARTY A HEARING OR ENCOURAGING THE COMMISSION OF A
PUTATIVE UNFAIR LABOR PRACTICE AS THE PRICE OF THAT HEARING.  /6/

        B     THE EXCEPTIONS TO THE PRE-EMPTION RULE ARE SO MANY
AND SO IMPORTANT AS TO CAST SUBSTANTIAL DOUBT ON THE COURT'S UNCRITICAL
RESORT TO IT, AS I HAVE ATTEMPTED TO SHOW IN PART I. WHEN CONSIDERED IN
CONJUNCTION WITH ARGUABLY PROTECTED ACTIVITY, HOWEVER, THESE EXCEPTIONS
DO MORE THAN MOCK THE RULE; THEY ILLUSTRATE SUBSTANTIVELY WHY
INVOCATION OF THE RULE AGAINST SUCH ACTIVITY IS A DISSERVICE TO THE
GREATER INTERESTS OF NATIONAL LABOR POLICY.  FOR EXAMPLE, THE REFUSAL
TO PRE-EMPT ARBITRABLE DISPUTES SERVES THE POLICY OF ENCOURAGING
ARBITRATION, A POLICY UNIVERSALLY AGREED TO BE OF GREATER IMPORTANCE
THAN UNIFORMITY.  SEE PART I, SUPRA.  THE POLICY AT STAKE IN SEC. 7
CASES IS SIMPLY TO SECURE A RESOLUTION OF THE DISPUTE RATHER THAN NONE
AT ALL.  YET THE COURT'S OPINION WOULD INSIST ON PRE-EMPTING SUCH
DISPUTES FROM THE STATES EVEN THOUGH THERE IS NO WAY TO PRESENT THEM TO
THE BOARD.  IF THE BOARD REFUSED TO HEAR A DISPUTE ALLEGING AN UNFAIR
LABOR PRACTICE BECAUSE IT WISHED TO ENCOURAGE ARBITRATION, BUT IGNORED
THE FACT THAT THE PARTIES HAD NO ARBITRATION CLAUSE IN THEIR CONTRACT,
WE COULD HARDLY CONSIDER ARBITRATION TO HAVE BEEN ENCOURAGED.  BUT,
WITH ALL RESPECT, THE COURT'S OPINION TODAY IS JUST AS EXASPERATING. 

SIMILARLY, IN HOLDING THAT ALLEGED BREACHES OF THE UNION'S DUTY OF
FAIR REPRESENTATION WERE NOT PRE-EMPTED, VACA V. SIPES, SUPRA, THE
COURT WAS APPREHENSIVE THAT THE WORKER WOULD BE WITHOUT A FORUM IF THE
GENERAL COUNSEL REFUSED TO INITIATE AN UNFAIR LABOR PRACTICE
COMPLAINT.  HOW MUCH MORE PRESSING MUST THOSE CONSIDERATIONS BE WHERE
THE BOARD IS IN FACT BARRED FROM REGULAR ADJUDICATION.  THE "INTENSELY
PRACTICAL CONSIDERATIONS" THAT WE FELT GOVERNED IN VACA, 386 U.S.,AT
183, SEEM EVEN MORE PRACTICAL HERE, ESPECIALLY IN VIEW OF THE CONCERN
EXPRESSED IN VACA THAT THE AGGRIEVED PARTY BE ABLE TO OBTAIN A HEARING
ON HIS COMPLAINT.  IF THE POSSIBLE REFUSAL OF THE GENERAL COUNSEL TO
ISSUE A COMPLAINT IS A PROMINENT REASON FOR REFUSING TO PRE-EMPT THE
STATES, I SHOULD THINK THAT, A FORTIORI, HIS INABILITY TO ACT AT ALL IS
AT LEAST AS GREAT A JUSTIFICATION FOR DOING AWAY WITH PRE-EMPTION IN
THIS SITUATION. 

FINALLY, IT MUST BE MENTIONED THAT IN PRECLUDING THE AGGRIEVED PARTY
FROM A HEARING, WE ARE FOLLOWING A PARTICULARLY DISFAVORED COURSE.  THE
IMPORTANCE IN OUR JURISPRUDENCE OF THE OPPORTUNITY FOR A HEARING NEED
NOT BE REVIEWED, BUT AT THE VERY LEAST IT TEACHES THAT WHERE PERSONS
WITH OTHERWISE JUSTICIABLE CLAIMS CANNOT OBTAIN A HEARING UNDER THE
LAW, THE LAW IS SUBJECT TO CLOSE SCRUTINY TO DISCOVER THE CIRCUMSTANCES
COMPELLING THIS RESULT.  THERE IS PRECIOUS LITTLE IN THE GARMON
DOCTRINE THAT JUSTIFIES ITS EXISTENCE AS TO SEC. 7 ACTIVITIES UNDER
THIS TEST.  CERTAINLY NEITHER THE EVIDENCE OF CONGRESSIONAL INTENT NOR
THE PRESUMED BUT OVERDRAWN INTEREST IN UNIFORMITY IS ADEQUATE TO
JUSTIFY DENIAL OF A HEARING. 

MOST CASES CONCERNING THE HEARING REQUIREMENT ARE THOSE WHERE SOME
ADVERSE CONSEQUENCE IS VISITED UPON THE INDIVIDUAL UNLESS HE CAN
EXPLAIN HIS SIDE OF THE STORY, BELL V. BURSON, 402 U.S. 535 (1971), OR
WHERE THERE IS CONTINUING CONFLICT AND DISSATISFACTION WITH NO TRIBUNAL
AVAILABLE TO FASHION RELIEF.  CF. BODDIE V. CONNECTICUT, 401 U.S. 371
(1971).  THE PROBLEMS SEEM SIMILAR TO THOSE FACING US HERE.  IN A SEC.
7 CASE, THE EMPLOYER IS FACED WITH, FOR EXAMPLE, PICKETING THAT TURNS
AWAY CUSTOMERS AND SUPPLIERS AND INFLICTS PROGRESSIVE ECONOMIC INJURY
ON THE EMPLOYER.  FOR A SMALL BUSINESSMAN WITH NO FORUM AVAILABLE FOR
RELIEF, THE EFFECT IS SIMILAR TO A WAGE EARNER WHO FINDS THAT CLAIMS OF
ANOTHER HAVE CUT HIS TAKE-HOME PAY IN HALF.  CF. SNIADACH V. FAMILY
FINANCE CORP., 395 U.S. 337 (1969). 

THE MAJORITY'S TREATMENT OF THIS IMPORTANT ISSUE IS DEFICIENT.  IT
SAYS ONLY THAT TREATING JUDICIAL POWER TO DEAL WITH ARGUABLY PROTECTED
ACTIVITY DIFFERENT FROM THE POWER TO DEAL WITH PROHIBITED ACTIVITY
WOULD BE "UNSATISFACTORY," SINCE "(BOTH AREAS EQUALLY INVOLVE CONDUCT
WHOSE LEGALITY IS GOVERNED BY FEDERAL LAW, THE APPLICATION OF WHICH
CONGRESS COMMITTED TO THE BOARD, NOT COURTS."  ANTE, AT 290.  I HAVE NO
QUARREL WITH THE FIRST POINT-- BY DEFINITION FEDERAL LAW WILL DETERMINE
IF FEDERAL LAW PROTECTS THE CONDUCT FROM STATE PROSCRIPTION; BUT I
HARDLY SEE HOW THAT ALONE PRE-EMPTS STATE COURTS.  SEE DOWD BOX, LUCAS
FLOUR, SMITH V. EVENING NEWS, TEAMSTERS UNION V. MORTON, 377 U.S. 252
(1964).  AS TO THE SECOND POINT, THE FACT IS THAT CONGRESS HAS NOT
COMMITTED THE ARGUABLY PROTECTED AREA EXCLUSIVELY TO THE BOARD.  IT HAS
PROVIDED NO MECHANISM FOR SEC. 7 CASES TO GET BEFORE THE BOARD EXCEPT
WHERE CONDUCT THREATENS SEC. 7 RIGHTS; NOR HAS ITS FUNCTIONARY, THE
BOARD, OPENED A PATH TO ITS DOOR FOR THOSE WHO SEEK TO ASCERTAIN
WHETHER CONDUCT THREATENING THEM IS TRULY PROTECTED BY FEDERAL LAW AND
HENCE UNASSAILABLE UNDER LOCAL LAW.  CONGRESS FOUND THE NO-MAN'S LAND
CREATED BY GUSS UNACCEPTABLE PRECISELY BECAUSE THERE WAS NO WAY TO HAVE
RIGHTS DETERMINED.  IN TERMS OF CONGRESSIONAL INTENTION I FIND IT
UNSUPPORTABLE TO HOLD THAT ONE THREATENED BY CONDUCT ILLEGAL UNDER
STATE LAW MAY NOT PROCEED AGAINST IT BECAUSE IT IS ARGUABLY PROTECTED
BY FEDERAL LAW WHEN HE HAS ABSOLUTELY NO LAWFUL METHOD FOR DETERMINING
WHETHER THAT IS ACTUALLY, AS WELL AS ARGUABLY, THE CASE.  PARTICULARLY
IS THIS TRUE WHERE THE DISPUTE IS BETWEEN A UNION AND ITS MEMBERS AND
THE LATTER ARE ASSERTING CLAIMS UNDER STATE LAW BASED ON THE UNION
CONSTITUTION.  I WOULD PERMIT THE STATE COURT TO ENTERTAIN THE ACTION
AND IF THE UNION DEFENDS ON THE GROUND THAT ITS CONDUCT IS PROTECTED BY
FEDERAL LAW, TO PASS ON THAT CLAIM AT THE OUTSET OF THE PROCEEDING.  IF
THE FEDERAL LAW IMMUNIZES THE CHALLENGED UNION ACTION, THE CASE IS
TERMINATED; BUT IF NOT, THE CASE IS ADJUDICATED UNDER STATE LAW. 

/1/  THIS OBVIOUSLY DOES NOT APPLY UNLESS THE PARTIES HAVE AGREED TO
ARBITRATE.  CF. SMITH V. EVENING NEWS ASSN., 371 U.S. 195, 196 N. 1
(1962). 

/2/  A POSSIBLE ADDITION TO THE LIST OF EXCEPTIONS IS THE PROVISION
OF SEC. 10(A), 29 U.S.C. 160(A), WHICH ALLOWS THE BOARD TO CEDE
JURISDICTION OVER LABOR DISPUTES TO STATE AGENCIES IF STATE LAW IS NOT
INCONSISTENT WITH FEDERAL LAW.  HOWEVER, THIS PROVISION HAS NEVER BEEN
INVOKED BY THE BOARD.  AMERICAN BAR ASSN., THE DEVELOPING LABOR LAW 807
(C. MORRIS ED. 1971). 

/3/  WITH ALL RESPECT, THE MAJORITY'S ATTEMPT TO DISTINGUISH THE
INSTANT CASE FROM GONZALES IS UNPERSUASIVE.  ACCORDING TO THE MAJORITY,
"THE REASONS FOR GONZALES' DEPRIVATION OF UNION MEMBERSHIP HAD NOTHING
TO DO WITH MATTERS OF EMPLOYMENT, WHILE LOCKRIDGE'S CAUSE OF ACTION AND
CLAIM FOR DAMAGES WERE BASED SOLELY UPON THE PROCUREMENT OF HIS
DISCHARGE FROM EMPLOYMENT."  ANTE, AT 296.  IN THE FIRST PLACE,
LOCKRIDGE SQUARELY ALLEGED THAT HIS DAMAGES HAD BEEN CAUSED BY
SUSPENSION FROM UNION MEMBERSHIP CONTRARY TO THE CONSTITUTION AND LAWS
OF THE UNION; HIS CAUSE OF ACTION WAS BOTTOMED UPON THIS BREACH OF DUTY
BY THE UNION.  MORE IMPORTANTLY, IT IS INACCURATE TO IMPLY, AS THE
FOREGOING QUOTED STATEMENT DOES, THAT LOCKRIDGE IS SOMEHOW DIFFERENT
FROM GONZALES IN THAT GONZALES'"DEPRIVATION OF UNION MEMBERSHIP" DID
NOT RESULT IN HIS LOSS OF EMPLOYMENT.  THE GONZALES COURT SAID, "THE
EVIDENCE ADDUCED AT THE TRIAL SHOWED THAT PLAINTIFF, BECAUSE OF HIS
LOSS OF MEMBERSHIP, WAS UNABLE TO OBTAIN EMPLOYMENT AND WAS THEREBY
DAMAGED . . . . (THIS DAMAGE WAS NOT CHARGED NOR TREATED AS THE RESULT
OF AN UNFAIR LABOR PRACTICE BUT AS A RESULT OF THE BREACH OF
CONTRACT."  356 U.S.,AT 622 N. (QUOTING THE CALIFORNIA COURT'S
OPINION.) 

/4/  NOT ONLY WERE THE RIGHTS AND OBLIGATIONS CREATED BY THE LMRDA
MADE SUPPLEMENTAL TO STATE LAW, BUT LARGE AREAS OF UNION-MEMBER
RELATIONS WERE LEFT UNTOUCHED.  FOR INSTANCE, TITLE I PROVIDES THAT
"NOTHING HEREIN SHALL BE CONSTRUED TO IMPAIR THE RIGHT OF A LABOR
ORGANIZATION TO ADOPT AND ENFORCE REASONABLE RULES AS TO THE
RESPONSIBILITY OF EVERY MEMBER TOWARD THE ORGANIZATION AS AN
INSTITUTION . . . ."  SEC. 101(A)(2), 73 STAT. 522, 29 U.S.C.
411(A)(2).  PRECISELY WHAT A UNION MEMBER MAY BE REQUIRED TO DO AS PART
OF HIS "RESPONSIBILITY . . . TOWARD THE ORGANIZATION AS AN INSTITUTION"
IS OBVIOUSLY FAR RANGING, AND CONGRESS COULD NO DOUBT HAVE DEFINED
THOSE RESPONSIBILITIES HAD IT CHOSEN TO DO SO.  FOR ANOTHER INSTANCE,
CONGRESS PROTECTED THE RIGHT OF THE UNION MEMBER TO SUE A LABOR
ORGANIZATION, BUT CONDITIONED THIS ON WHATEVER EXHAUSTION OF
"REASONABLE HEARING PROCEDURES . . . WITHIN SUCH ORGANIZATION" THE
UNION MAY REQUIRE.  SEC. 101(A)(4), 29 U.S.C. 411(A)(4).  WHEN COMPARED
TO THE STEP-BY-STEP STATUTORY PROCEDURE REQUIRED FOR THE ADJUDICATION
OF UNFAIR LABOR PRACTICES, 29 U.S.C. 160, IT IS CLEAR THAT CONGRESS
MEANT TO LEAVE SOME FLEXIBILITY TO THE UNIONS IN DEALING WITH MEMBER
COMPLAINTS.  STILL OTHER EXAMPLES MAY BE SEEN BY NOTING WHAT CONGRESS
OMITTED EVEN FROM MENTION.  PERHAPS MOST IMPORTANT OF ALL IN THIS
CONTEXT IS THE FACT THAT CONGRESS PROVIDED FOR NO CENTRAL AGENCY, SUCH
AS IT HAD IN THE NLRA, TO ADMINISTER THE ACT.  ALTHOUGH THE SECRETARY
OF LABOR HAS IN SOME RESPECTS A MAJOR ROLE IN IMPLEMENTING THE ACT,
DISPUTES ARISING UNDER THE ACT ARE FOR THE COURTS IN THE FIRST
INSTANCE. 

/5/  THE MAJORITY'S OPINION SIMPLY REFUSES TO FACE THIS ISSUE. 
THERE IS NO "ABSENCE OF A CONTRARY EXPRESSION OF INTENTION FROM
CONGRESS," AS THE MAJORITY CONTENDS.  SEE ANTE, AT 288 N. 5.  WHEN
CONGRESS ADDRESSED ITSELF TO UNION-MEMBER RELATIONS AS SUCH IT
SPECIFICALLY PRESERVED EXISTING STATE REMEDIES EVEN THOUGH THERE MAY BE
FEDERAL REMEDIES TO REDRESS THE SAME CONDUCT. 

/6/  PERHAPS THE TOOLS WITH WHICH THE BOARD CAN FASHION RELIEF IN
THIS AREA ARE ALREADY AT HAND, IN THE FORM OF THE DECLARATORY ORDER. 
SUCH AN ORDER IS BINDING ON THE AGENCY AND IS JUDICIALLY REVIEWABLE. 
RED LION BROADCASTING CO. V. FCC, 395 U.S. 367, 372 N. 3 (1969); FROZEN
FOOD EXPRESS V. UNITED STATES, 351 U.S. 40 (1956); ROCHESTER TELEPHONE
CORP. V. UNITED STATES, 307 U.S. 125 (1939); PENNSYLVANIA R. CO. V.
UNITED STATES, 363 U.S. 202 (1960).  THE NLRA GIVES THE BOARD
"AUTHORITY . . . TO MAKE, AMEND, AND RESCIND, IN THE MANNER PRESCRIBED
BY THE ADMINISTRATIVE PROCEDURE ACT, SUCH RULES AND REGULATIONS AS MAY
BE NECESSARY TO CARRY OUT THE PROVISIONS" OF THE NLRA.  SEC. 6, 29
U.S.C. 156.  THE ADMINISTRATIVE PROCEDURE ACT, IN TURN, SPECIFICALLY
PROVIDES THAT AGENCIES MAY ISSUE DECLARATORY ORDERS "AS IN THE CASE OF
OTHER ORDERS, AND IN ITS SOUND DISCRETION" IN ORDER TO "TERMINATE A
CONTROVERSY OR REMOVE UNCERTAINTY."  5 U.S.C. 554(E) (1970 ED.).  THE
BOARD CURRENTLY PROVIDES FOR DECLARATORY ORDERS IN ONLY A FEW
SITUATIONS, SUCH AS FOR DETERMINATION OF THE COMMERCIAL IMPACT ASPECT
OF THE JURISDICTIONAL ISSUE WHERE THE EMPLOYER HAS BOTH UNFAIR LABOR
PRACTICE CHARGES AND REPRESENTATION PROCEEDINGS PENDING BEFORE THE
BOARD, 29 CFR 102.105-102.110.  THE USE OF DECLARATORY ORDERS IN UNFAIR
LABOR PRACTICE PROCEEDINGS IS NONEXISTENT, AND THE SAME SEEMS TO BE
TRUE FOR DETERMINING WHETHER OR NOT ACTIVITIES ARGUABLY SUBJECT TO SEC.
7 ARE PROTECTED.  SEE HICKEY, DECLARATORY ORDERS AND THE NATIONAL LABOR
RELATIONS BOARD, 45 NOTRE DAME LAW.  89, 106 (1969). 

BEFORE AN AGENCY MAY ISSUE A DECLARATORY ORDER, IT MUST HAVE
INDEPENDENT SUBJECT MATTER JURISDICTION.  BUT WE HELD IN RED LION,
SUPRA, THAT THE FCC'S DELCARATORY ORDER IN THAT CASE COULD BE SUSTAINED
ON ANY OF SEVERAL GROUNDS INCLUDING THE REQUIREMENT THAT THE FCC SEE
THAT THE "PUBLIC INTEREST BE SERVED" IN GRANTING AND RENEWING
LICENSES.  SO HERE, THE ARGUMENT FOR THE BOARD JURISDICTION WOULD BE
THAT IT IS EMPOWERED TO "PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR
LABOR PRACTICE."  29 U.S.C. 160(A).  IF, AS POINTED OUT EARLIER, THE
PRICE OF NOT RESORTING TO AN ADEQUATE FORUM FOR RESOLUTION OF THE SEC.
7 STATUS CAN BE THE COMMISSION OF AN UNFAIR LABOR PRACTICE, THE POWER
OF THE BOARD TO PREVENT UNFAIR LABOR PRACTICES GIVES IT JURISDICTION TO
ISSUE SUCH SEC. 7 DECLARATORY ORDERS.  SUCH AN ORDER FINDING CERTAIN
CONDUCT PROTECTED WOULD OVERRIDE STATE LAW, BUT WOULD BE REVIEWABLE. 
IF THE CONDUCT WAS FOUND UNPROTECTED, THERE WOULD BE NO BARRIER TO
SUITS BASED ON STATE LAW. 

MR. JUSTICE BLACKMUN ALSO DISSENTS FOR THE BASIC REASONS SET FORTH
BY MR. JUSTICE DOUGLAS AND MR. JUSTICE WHITE IN THEIR RESPECTIVE
DISSENTING OPINIONS. 

ISAAC N. GRONER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE EARLE W. PUTNAM AND PAUL T. BAILEY. 

JOHN L. KILCULLEN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE ROBERT W. GREEN AND SAMUEL KAUFMAN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ARNOLD ORDMAN, DOMINICK L. MANOLI, NORTON J. COME,
AND LINDA SHER FOR THE NATIONAL LABOR RELATIONS BOARD, AND BY J. ALBERT
WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION
OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS. 

JONATHAN C. GIBSON FILED A BRIEF FOR THE NATIONAL RIGHT TO WORK
LEGAL DEFENSE AND EDUCATION FOUNDATION AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :













HODGSON V. STEELWORKERS, 403 U.S. 333 


       HODGSON, SECRETARY OF LABOR V. LOCAL UNION 6799, UNITED

           STEELWORKERS OF AMERICA, AFL-CIO, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 655.  ARGUED MARCH 23, 1971-- DECIDED JUNE 14, 1971 


FAILURE OF LABOR UNION MEMBER'S ELECTION COMPLAINT TO INCLUDE AN
OBJECTION TO MEETING-ATTENDANCE RULE DURING HIS PURSUIT OF INTERNAL
UNION REMEDIES WHEN THE MEMBER WAS AWARE OF THE EXISTENCE OF THE RULE
BARS THE SECRETARY OF LABOR FROM LATER CHALLENGING THAT RULE IN AN
ACTION UNDER SEC. 402 OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE
ACT, WHICH PROVIDES THAT ONCE A MEMBER CHALLENGING AN ELECTION HAS
EXHAUSTED HIS INTERNAL UNION REMEDIES AND FILED A COMPLAINT WITH THE
SECRETARY OF LABOR, THE SECRETARY "SHALL INVESTIGATE SUCH COMPLAINT
AND, IF HE FINDS PROBABLE CAUSE TO BELIEVE THAT A VIOLATION . . . HAS
OCCURRED AND HAS NOT BEEN REMEDIED, HE SHALL . . . BRING A CIVIL ACTION
AGAINST THE LABOR ORGANIZATION."  PP. 336-341. 

426 F.2D 969, AFFIRMED. 

MARSHALL, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BLACK, DOUGLAS, HARLAN, STEWART, AND BLACKMUN, JJ., JOINED. 
BRENNAN, J., POST, P. 341, AND WHITE, J., POST, P. 343, FILED
DISSENTING OPINIONS. 

OPINION OF THE COURT BY MR. JUSTICE MARSHALL, ANNOUNCED BY MR.
JUSTICE STEWART. 

PETITIONER, THE SECRETARY OF LABOR, INSTITUTED THIS ACTION UNDER
SEC. 402(B) OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF
1959, 73 STAT. 534, 29 U.S.C. 482(B), AGAINST LOCAL 6799, UNITED
STEELWORKERS OF AMERICA, TO SET ASIDE A GENERAL ELECTION OF OFFICERS
CONDUCTED BY THE UNION.  /1/  THE LAWSUIT AROSE AFTER NICHOLAS HANTZIS,
AN UNSUCCESSFUL CANDIDATE FOR PRESIDENT OF THE LOCAL AND INTERNATIONAL
UNION ORGANIZATIONS.  HIS PROTEST CONCERNED SEVERAL MATTERS INCLUDING
THE USE OF UNION FACILITIES TO PREPARE CAMPAIGN MATERIALS FOR THE
INCUMBENT PRESIDENT WHO WAS RE-ELECTED.  /2/ 

AFTER FAILING TO OBTAIN RELIEF THROUGH THE INTERNAL PROCEDURES OF
EITHER UNION ORGANIZATION, HANTZIS FILED A COMPLAINT WITH THE SECRETARY
OF LABOR PURSUANT TO SEC. 402(A) OF THE ACT, 29 U.S.C. 482(A).  THE
COMPLAINT REPEATED THE CHARGE THAT UNION FACILITIES HAD BEEN USED TO
PROMOTE THE CANDIDACY OF THE INCUMBENT PRESIDENT AND RAISED, FOR THE
FIRST TIME, AN ADDITIONAL OBJECTION CONCERNING A MEETING-ATTENDANCE
REQUIREMENT IMPOSED AS A CONDITION OF CANDIDACY FOR UNION OFFICE.  /3/
AT NO TIME DURING HIS INTERNAL UNION PROTESTS DID HANTZIS CHALLENGE THE
ATTENDANCE REQUIREMENT. 

FOLLOWING AN INVESTIGATION OF THE COMPLAINT, THE SECRETARY CONCLUDED
THAT UNION FACILITIES HAD BEEN USED IMPROPERLY TO AID THE RE-ELECTION
OF THE INCUMBENT PRESIDENT IN VIOLATION OF SEC. 401(G) OF THE ACT, 29
U.S.C. 481(G).  THE SECRETARY ALSO CONCLUDED THAT SEC. 401(E) HAD BEEN
VIOLATED BECAUSE THE MEETING-ATTENDANCE REQUIREMENT HAD NOT BEEN
UNIFORMLY ADMINISTERED AND BECAUSE THE REQUIREMENT ITSELF WAS NOT A
REASONABLE QUALIFICATION ON THE RIGHT OF UNION MEMBERS TO HOLD OFFICE. 
RESPONDENTS WERE ADVISED OF THESE CONCLUSIONS AND WERE ASKED TO TAKE
VOLUNTARY REMEDIAL ACTION.  WHEN THEY FAILED TO COMPLY WITH THE
REQUEST, THE SECRETARY BROUGHT THIS PROCEEDING IN THE DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA. 

THE DISTRICT COURT HELD THAT SEC. 401(G) HAD BEEN VIOLATED BY THE
USE OF UNION FACILITIES FOR THE BENEFIT OF THE INCUMBENT PRESIDENT'S
CAMPAIGN AND ORDERED A NEW ELECTION FOR THE OFFICE OF PRESIDENT.  /4/
THE DISTRICT COURT ALSO HELD, HOWEVER, THAT THE MEETING-ATTENDANCE RULE
WAS REASONABLE AND THAT LOCAL 6799 HAD NOT VIOLATED SEC. 401(E) BY
IMPOSING THE RULE AS A QUALIFICATION ON CANDIDACIES FOR UNION OFFICE. 

ON APPEAL, THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED
WITHOUT REACHING THE QUESTION WHETHER THE ATTENDANCE REQUIREMENT WAS
REASONABLE.  IN THE COURT'S VIEW, HANTZIS' FAILURE TO CHALLENGE THE
REQUIREMENT DURING HIS PURSUIT OF INTERNAL UNION REMEDIES PRECLUDED THE
SECRETARY FROM LATER RAISING THE ISSUE.  THE COURT REASONED THAT SINCE
THE ACT REQUIRES THAT UNION MEMBERS PROTESTING THE CONDUCT OF ELECTIONS
EXHAUST THEIR INTERNAL UNION REMEDIES BEFORE COMPLAINING TO THE
SECRETARY, CONGRESS INTENDED TO EMPOWER THE SECRETARY TO ASSERT ONLY
"THOSE VIOLATIONS THAT ARE FAIRLY APPARENT FROM A MEMBER'S PROTEST TO
THE UNION . . . ."  426 F.2D 969, 971. 

BECAUSE THE CASE PRESENTS AN IMPORTANT ISSUE CONCERNING THE SCOPE OF
THE SECRETARY'S AUTHORITY UNDER THE ACT, WE GRANTED CERTIORARI, 400
U.S. 940.  WE CONCLUDE THAT HANTZIS' FAILURE TO OBJECT TO THE
ATTENDANCE RULE DURING PURSUIT OF HIS INTERNAL UNION REMEDIES BARS THE
SECRETARY FROM LATER CHALLENGING THE RULE OF A SEC. 402(B) ACTION.  WE
THEREFORE AFFIRM THE DECISION OF THE COURT OF APPEALS. 

HAS EXHAUSTED HIS INTERNAL UNION REMEDIES AND FILED A COMPLAINT WITH
THE SECRETARY OF LABOR, THE SECRETARY "SHALL INVESTIGATE SUCH COMPLAINT
AND, IF HE FINDS PROBABLE CAUSE TO BELIEVE THAT A VIOLATION OF THIS
TITLE HAS OCCURRED AND HAS NOT BEEN REMEDIED, HE SHALL, WITHIN SIXTY
DAYS AFTER THE FILING OF SUCH COMPLAINT, BRING A CIVIL ACTION AGAINST
THE LABOR ORGANIZATION . . . ."  /5/  AT THE OUTSET, PETITIONER
CONTENDS THAT THE LANGUAGE OF THE SECTION EMPOWERS THE SECRETARY TO
INVESTIGATE AND LITIGATE ANY AND ALL VIOLATIONS THAT MAY HAVE AFFECTED
THE OUTCOME OF AN ELECTION ONCE A UNION MEMBER HAS EXHAUSTED HIS
INTERNAL UNION REMEDIES CONCERNING ANY VIOLATION THAT OCCURRED DURING
THAT ELECTION.  EMPHASIS IS PLACED ON THE FACT THAT THE SECRETARY IS
AUTHORIZED TO ACT IF HIS INVESTIGATION UNCOVERS "A VIOLATION"-- THIS,
IT IS SAID, MEANS THAT THE SECRETARY IS NOT LIMITED TO SEEKING REDRESS
ONLY IN RESPECT OF THE CLAIMS EARLIER PRESENTED BY THE UNION MEMBER TO
HIS UNION.  HOWEVER, THE STATUTORY LANGUAGE IS NOT SO DEVOID OF
AMBIGUITY THAT IT ALONE CAN BEAR THE WEIGHT OF THE SECRETARY'S
EXPANSIVE VIEW OF HIS AUTHORITY.  WHILE THE WORDS "A VIOLATION" MIGHT
MEAN "ANY VIOLATION WHATEVER REVEALED BY THE INVESTIGATION," THE WORDS
ARE SUSCEPTIBLE OF OTHER READINGS.  IN PARTICULAR, THEY CAN FAIRLY BE
READ TO MEAN, "ANY OF THE VIOLATIONS RAISED BY THE UNION MEMBER DURING
HIS INTERNAL UNION ELECTION PROTEST."  IN WIRTZ V. LABORERS' UNION, 389
U.S. 477 (1968), THIS COURT NOTED THAT THE RANGE OF THE SECRETARY'S
AUTHORITY UNDER SEC. 402(B) MUST BE DETERMINED "BY INFERENCE SINCE
THERE IS LACKING AN EXPLICIT PROVISION REGARDING THE PERMISSIBLE SCOPE
OF THE SECRETARY'S COMPLAINT," 389 U.S.,AT 481.  WE MUST, THEREFORE,
EXAMINE THE LEGISLATIVE HISTORY AND STATUTORY POLICIES BEHIND SEC. 402
AND THE REST OF THE ACT TO DECIDE THE ISSUE PRESENTED BY THIS CASE. 

EXAMINATION OF THE RELEVANT LEGISLATIVE MATERIALS REVEALS A CLEAR
CONGRESSIONAL CONCERN FOR THE NEED TO REMEDY ABUSES IN UNION ELECTIONS
WITHOUT DEPARTING NEEDLESSLY FROM THE LONGSTANDING CONGRESSIONAL POLICY
AGAINST UNNECESSARY GOVERNMENTAL INTERFERENCE WITH INTERNAL UNION
AFFAIRS, WIRTZ V. GLASS BOTTLE BLOWERS ASSN., 389 U.S. 463, 470-471
(1968).  THE INTRODUCTION TO THE SENATE REPORT ACCOMPANYING THE ACT
SUMMARIZES THE GENERAL OBJECTIVES OF CONGRESS: 

     "A STRONG INDEPENDENT LABOR MOVEMENT IS A VITAL PART OF

  AMERICAN INSTITUTIONS.  THE SHOCKING ABUSES REVEALED BY RECENT

  INVESTIGATIONS HAVE BEEN CONFINED TO A FEW UNIONS.  THE

  OVERWHELMING MAJORITY ARE HONESTLY AND DEMOCRATICALLY RUN.  IN

  PROVIDING REMEDIES FOR EXISTING EVILS THE SENATE SHOULD BE

  CAREFUL NEITHER TO UNDERMINE SELF-GOVERNMENT WITHIN THE LABOR

  MOVEMENT NOR TO WEAKEN UNIONS IN THEIR ROLE AS THE BARGAINING

  REPRESENTATIVES OF EMPLOYEES."  S. REP. NO. 187, 86TH CONG., 1ST

SESS., 5 (1959). 

THE REQUIREMENT OF SEC. 402(A), THAT A UNION MEMBER FIRST SEEK REDRESS
OF ALLEGED ELECTION VIOLATIONS WITHIN THE UNION BEFORE ENLISTING THE
AID OF THE SECRETARY, WAS SIMILARLY DESIGNED TO HARMONIZE THE NEED TO
ELIMINATE ELECTION ABUSES WITH A DESIRE TO AVOID UNNECESSARY
GOVERNMENTAL INTERVENTION.  THE SAME SENATE REPORT, IN REFERENCE TO
TITLE IV OF THE ACT AND TO THE EXHAUSTION REQUIREMENT, STATES: 

"IN FILING A COMPLAINT THE MEMBER MUST SHOW THAT HE HAS PURSUED ANY
REMEDIES AVAILABLE TO HIM WITHIN THE UNION AND ANY PARENT BODY IN A
TIMELY MANNER.  THIS RULE PRESERVES A MAXIMUM AMOUNT OF INDEPENDENCE
AND SELF-GOVERNMENT BY GIVING EVERY INTERNATIONAL UNION THE OPPORTUNITY
TO CORRECT IMPROPER LOCAL ELECTIONS."  ID., AT 21.  PLAINLY CONGRESS
INTENDED TO FOSTER A SITUATION IN WHICH THE UNIONS THEMSELVES COULD
REMEDY AS MANY ELECTION VIOLATIONS AS POSSIBLE WITHOUT THE GOVERNMENT'S
EVER BECOMING INVOLVED.  ACHIEVING THIS OBJECTIVE WOULD NOT ONLY
PRESERVE AND STRENGTHEN UNIONS AS SELF-REGULATING INSTITUTIONS, BUT
ALSO AVOID UNNECESSARY EXPENDITURE OF THE LIMITED RESOURCES OF THE
SECRETARY OF LABOR. 

PETITIONER CONTENDS THAT THE CONGRESSIONAL CONCERNS UNDERPINNING THE
EXHAUSTION REQUIREMENT WERE IN FACT ADEQUATELY SERVED IN THIS CASE,
BECAUSE THE ELECTION IN QUESTION WAS ACTUALLY PROTESTED BY A UNION
MEMBER WITHIN THE UNION, AND BECAUSE THE UNION WAS LATER GIVEN A CHANCE
TO REMEDY SPECIFIC VIOLATION BEFORE BEING TAKEN TO COURT BY THE
SECRETARY.  IN THIS VIEW, IT IS IRRELEVANT THAT HANTZIS HIMSELF DID NOT
FOCUS HIS ELECTION CHALLENGE ON THE ATTENDANCE REQUIREMENT WHEN SEEKING
INTERNAL UNION REMEDIES.  IN SUM, THE SECRETARY URGES THAT SEC. 402(B)
EMPOWERS HIM TO ACT SO LONG AS A UNION MEMBER OBJECTS IN ANY WAY TO AN
ELECTION AND SO LONG AS THE UNION IS GIVEN THE OPPORTUNITY TO REMEDY
VOLUNTARILY ANY VIOLATIONS THAT THE SECRETARY DETERMINES MAY HAVE
AFFECTED THE OUTCOME OF THAT ELECTION, REGARDLESS WHETHER THE MEMBER
OBJECTED TO THE VIOLATIONS DURING HIS PROTEST TO THE UNION. 

HOWEVER, UNDER PETITIONER'S LIMITED VIEW OF CONGRESSIONAL
OBJECTIVES, THE EXHAUSTION REQUIREMENT OF SEC. 402(A) IS LEFT WITH
VIRTUALLY NO PURPOSE OR PART TO PLAY IN THE STATUTORY SCHEME. 
"EXHAUSTION" WOULD BE ACCOMPLISHED GIVEN ANY SORT OF PROTEST WITHIN THE
UNION, NO MATTER HOW REMOTE THE COMPLAINT MADE THERE FROM THE ALLEGED
VIOLATION LATER LITIGATED.  THE OBVIOUS PURPOSE OF AN EXHAUSTION
REQUIREMENT IS NOT MET WHEN THE UNION, DURING "EXHAUSTION," IS GIVEN NO
NOTICE OF THE DEFECTS TO BE CURED.  INDEED, THE PRIMARY OBJECTIVE OF
THE EXHAUSTION REQUIREMENT IS TO PRESERVE THE VITALITY OF INTERNAL
UNION MECHANISMS FOR RESOLVING ELECTION DISPUTES-- MECHANISMS TO DECIDE
COMPLAINTS BROUGHT BY MEMBERS OF THE UNION THEMSELVES.  TO ACCEPT
PETITIONER'S CONTENTION THAT A UNION MEMBER, WHO IS AWARE OF THE FACTS
UNDERLYING AN ALLEGED VIOLATION, NEED NOT FIRST PROTEST THIS VIOLATION
TO HIS UNION BEFORE COMPLAINING TO THE SECRETARY WOULD BE NEEDLESSLY TO
WEAKEN UNION SELF-GOVERNMENT.  PLAINLY PETITIONER'S APPROACH SLIGHTS
THE INTEREST IN PROTECTING UNION SELF-REGULATION AND IS OUT OF HARMONY
WITH THE CONGRESSIONAL PURPOSE REFLECTED IN SEC. 402(A). 

OF COURSE, ANY INTERPRETATION OF THE EXHAUSTION REQUIREMENT MUST
REFLECT THE NEEDS OF RANK AND FILE UNION MEMBERS-- THOSE PEOPLE THE
REQUIREMENT IS DESIGNED ULTIMATELY TO SERVE.  WE ARE NOT UNMINDFUL THAT
UNION MEMBERS MAY USE BROAD OR IMPRECISE LANGUAGE IN FRAMING THEIR
INTERNAL UNION PROTESTS AND THAT MEMBERS WILL OFTEN LACK THE NECESSARY
INFORMATION TO BE AWARE OF THE EXISTENCE OR SCOPE OF MANY ELECTION
VIOLATIONS.  UNION DEMOCRACY IS FAR TOO IMPORTANT TO PERMIT THESE
DEFICIENCIES TO FORECLOSE RELIEF FROM ELECTION VIOLATIONS; AND IN
DETERMINING WHETHER THE EXHAUSTION REQUIREMENT OF SEC. 402(A) HAS BEEN
SATISFIED, COURTS SHOULD IMPOSE A HEAVY BURDEN ON THE UNION TO SHOW
THAT IT COULD NOT IN ANY WAY DISCERN THAT A MEMBER WAS COMPLAINING OF
THE VIOLATION IN QUESTION.  /6/  BUT WHEN A UNION MEMBER IS AWARE OF
THE FACTS SUPPORTING AN ALLEGED ELECTION VIOLATION, THE MEMBER MUST, IN
SOME DISCERNIBLE FASHION, INDICATE TO HIS UNION HIS DISSATISFACTION
WITH THOSE FACTS IF HE IS TO MEET THE EXHAUSTION REQUIREMENT. 

IN THIS CASE, IT IS CLEAR THAT THE PROTESTING MEMBER KNEW OF THE
EXISTENCE OF THE MEETING-ATTENDANCE PROVISION AND THAT HIS ELECTION
PROTESTS TO THE LOCAL AND INTERNATIONAL UNIONS CONCERNED MATTERS WHOLLY
UNRELATED TO THE RULE.  WE THEREFORE HOLD THAT INTERNAL UNION REMEDIES
WERE NOT PROPERLY EXHAUSTED AND THAT THE SECRETARY WAS BARRED FROM
LITIGATING THE CLAIM.  GIVEN THIS HOLDING, WE DO NOT REACH THE QUESTION
WHETHER THE MEETING-ATTENDANCE RULE ITSELF IS REASONABLE. 

THE JUDGMENT IS

    AFFIRMED. 

/1/  THE UNITED STEELWORKERS OF AMERICA, AN INTERNATIONAL UNION
UNDER WHICH LOCAL 6799 IS CHARTERED, INTERVENED AS A PARTY DEFENDANT. 

/2/  HANTZIS' WRITTEN PROTEST CONSISTED OF A LETTER TO THE
INTERNATIONAL UNION WHICH PURPORTED TO DESCRIBE THE ELECTION'S
OPERATION.  SINCE THE LETTER DID NOT MAKE SPECIFIC ALLEGATIONS, IT IS
DIFFICULT PRECISELY TO DEFINE HANTZIS' OBJECTIONS.  HOWEVER, IN
ADDITION TO HIS GENERAL CHARGE THAT UNION MACHINERY HAD BEEN USED TO
AID INCUMBENTS, HANTZIS ALSO PROTESTED SEVERAL PROCEDURAL MATTERS
INCLUDING THE METHODS USED TO NOMINATE AND SWEAR IN OFFICERS.  THE
SECRETARY OF LABOR SUBSEQUENTLY CONCLUDED THAT NONE OF THESE PROCEDURAL
MATTERS CONSTITUTED A VIOLATION OF THE ACT. 

/3/  THE ATTENDANCE RULE, WHICH IS CONTAINED IN THE CONSTITUTION OF
THE INTERNATIONAL UNION, PROVIDES THAT A UNION MEMBER, IN ORDER TO BE
ELIGIBLE FOR ELECTION AS A LOCAL UNION OFFICER OR GRIEVANCE COMMITTEE
MAN, MUST HAVE ATTENDED AT LEAST ONE-HALF OF THE REGULAR MEETINGS OF
HIS LOCAL UNION FOR 36 MONTHS PREVIOUS TO THE ELECTION UNLESS UNION
ACTIVITIES OR WORKING HOURS PREVENTED HIS ATTENDANCE.  IT IS UNCLEAR
FROM HANTZIS' COMPLAINT WHETHER HE OBJECTED TO THE ATTENDANCE RULE
ITSELF OR TO THE WAY IN WHICH THE RULE WAS ADMINISTERED DURING THE
ELECTION.  HANTZIS HIMSELF QUALIFIED UNDER THE RULE. 

/4/  THIS FACET OF THE DISTRICT COURT'S DECISION IS NOT CHALLENGED
HERE. 

/5/  "SEC.  402.  (A) A MEMBER OF A LABOR ORGANIZATION-- 

"(1) WHO HAS EXHAUSTED THE REMEDIES AVAILABLE UNDER THE CONSTITUTION
AND BYLAWS OF SUCH ORGANIZATION AND OF ANY PARENT BODY, OR 

"(2) WHO HAS INVOKED SUCH AVAILABLE REMEDIES WITHOUT OBTAINING A
FINAL DECISION WITHIN THREE CALENDAR MONTHS AFTER THEIR INVOCATION,
"MAY FILE A COMPLAINT WITH THE SECRETARY WITHIN ONE CALENDAR MONTH
THEREAFTER ALLEGING THE VIOLATION OF ANY PROVISION OF SECTION 401
(INCLUDING VIOLATION OF THE CONSTITUTION AND BYLAWS OF THE LABOR
ORGANIZATION PERTAINING TO THE ELECTION AND REMOVAL OF OFFICERS).  THE
CHALLENGED ELECTION SHALL BE PRESUMED VALID PENDING A FINAL DECISION
THEREON (AS HEREINAFTER PROVIDED) AND IN THE INTERIM THE AFFAIRS OF THE
ORGANIZATION SHALL BE CONDUCTED BY THE OFFICERS ELECTED OR IN SUCH
OTHER MANNER AS ITS CONSTITUTION AND BYLAWS MAY PROVIDE.     "(B) THE
SECRETARY SHALL INVESTIGATE SUCH COMPLAINT AND, IF HE FINDS PROBABLE
CAUSE TO BELIEVE THAT A VIOLATION OF THIS TITLE HAS OCCURRED AND HAS
NOT BEEN REMEDIED, HE SHALL, WITHIN SIXTY DAYS AFTER THE FILING OF SUCH
COMPLAINT, BRING A CIVIL ACTION AGAINST THE LABOR ORGANIZATION AS AN
ENTITY IN THE DISTRICT COURT OF THE UNITED STATES IN WHICH SUCH LABOR
ORGANIZATION MAINTAINS ITS PRINCIPAL OFFICE TO SET ASIDE THE INVALID
ELECTION, IF ANY, AND TO DIRECT THE CONDUCT OF AN ELECTION OR HEARING
AND VOTE UPON THE REMOVAL OF OFFICERS UNDER THE SUPERVISION OF THE
SECRETARY AND IN ACCORDANCE WITH THE PROVISIONS OF THIS TITLE AND SUCH
RULES AND REGULATIONS AS THE SECRETARY MAY PRESCRIBE.  THE COURT SHALL
HAVE POWER TO TAKE SUCH ACTION AS IT DEEMS PROPER TO PRESERVE THE
ASSETS OF THE LABOR ORGANIZATION. 

"(C) IF, UPON A PREPONDERANCE OF THE EVIDENCE AFTER A TRIAL UPON THE
MERITS, THE COURT FINDS-- 

"(1) THAT AN ELECTION HAS NOT BEEN HELD WITHIN THE TIME PRESCRIBED
BY SECTION 401, OR 

"(2) THAT THE VIOLATION OF SECTION 401 MAY HAVE AFFECTED THE OUTCOME
OF AN ELECTION, 

"THE COURT SHALL DECLARE THE ELECTION, IF ANY, TO BE VOID AND DIRECT
THE CONDUCT OF A NEW ELECTION UNDER SUPERVISION OF THE SECRETARY AND,
SO FAR AS LAWFUL AND PRACTICABLE, IN CONFORMITY WITH THE CONSTITUTION
AND BYLAWS OF THE LABOR ORGANIZATION.  THE SECRETARY SHALL PROMPTLY
CERTIFY TO THE COURT THE NAMES OF THE PERSONS ELECTED, AND THE COURT
SHALL THEREUPON ENTER A DECREE DECLARING SUCH PERSONS TO BE THE
OFFICERS OF THE LABOR ORGANIZATION.  IF THE PROCEEDING IS FOR THE
REMOVAL OF OFFICERS PURSUANT TO SUBSECTION (H) OF SECTION 401, THE
SECRETARY SHALL CERTIFY THE RESULTS OF THE VOTE AND THE COURT SHALL
ENTER A DECREE DECLARING WHETHER SUCH PERSONS HAVE BEEN REMOVED AS
OFFICERS OF THE LABOR ORGANIZATION. 

"(D) AN ORDER DIRECTING AN ELECTION, DISMISSING A COMPLAINT, OR
DESIGNATING ELECTED OFFICERS OF A LABOR ORGANIZATION SHALL BE
APPEALABLE IN THE SAME MANNER AS THE FINAL JUDGMENT IN A CIVIL ACTION,
BUT AN ORDER DIRECTING AN ELECTION SHALL NOT BE STAYED PENDING
APPEAL." 

/6/  FOR MUCH THE SAME REASONS, MEMBERS SHOULD NOT BE HELD TO
PROCEDURAL NICETIES WHILE SEEKING REDRESS WITHIN THEIR UNION, AND
EXHAUSTION IS NOT REQUIRED WHEN INTERNAL UNION REMEDIES ARE
UNNECESSARILY COMPLEX OR OTHERWISE OPERATE TO CONFUSE OR INHIBIT UNION
PROTESTORS. 

MR. JUSTICE BRENNAN, DISSENTING. 

I DISSENT.  THE COURT ACKNOWLEDGES THAT 29 U.S.C. 482(B), IN
PERMITTING THE SECRETARY TO BRING A CIVIL ACTION AGAINST THE UNION IF
HIS INVESTIGATION DISCLOSES "A VIOLATION" OF SEC. 481, MIGHT WELL MEAN
"ANY VIOLATION WHATEVER REVEALED BY THE INVESTIGATION."  ANTE, AT 338. 
NONETHELESS, IT CONCLUDES THAT "A VIOLATION" IS LIMITED TO "ANY OF THE
VIOLATIONS RAISED BY THE UNION MEMBER DURING HIS INTERNAL UNION
ELECTION PROTEST," IBID., BECAUSE THE BROADER INTERPRETATION WOULD
DISREGARD THE CONGRESSIONAL PURPOSE IN IMPOSING THE EXHAUSTION
REQUIREMENT.  IT IS IN GIVING CONTROLLING SIGNIFICANCE TO THE
EXHAUSTION REQUIREMENT RATHER THAN TO THE CLEAR AND PRIMARY POLICY
JUDGMENT ENACTED BY CONGRESS THAT THE COURT, IN MY VIEW, FALLS INTO
ERROR. 

WIRTZ V. GLASS BOTTLE BLOWERS ASSN., 389 U.S. 463 (1968), AND WIRTZ V.
LABORERS' UNION, 389 U.S. 477 (1968), COMPREHENSIVELY ANALYZED THE
POLICY CONGRESS MEANT TO FURTHER IN ENACTING THE SECRETARY'S
ENFORCEMENT POWERS UNDER 29 U.S.C. 482.  WE SAID THAT "TITLE IV'S
SPECIAL FUNCTION IN FURTHERING THE OVERALL GOALS OF THE LMRDA IS TO
INSURE 'FREE AND DEMOCRATIC' ELECTIONS," 389 U.S.,AT 470, AN INTEREST
"VITAL" NOT ALONE TO UNION MEMBERS BUT ALSO TO THE GENERAL PUBLIC.  389
U.S.,AT 475, 483.  WHILE WE RECOGNIZED THAT CONGRESS DESIRED TO FURTHER
THIS BASIC POLICY WITH MINIMAL INTERFERENCE WITH A UNION'S MANAGEMENT
OF ITS OWN AFFAIRS, WE MADE CLEAR THAT WHERE GOVERNMENTAL INTRUSION WAS
NECESSARY TO REALIZE THE VITAL PUBLIC POLICY FAVORING FREE AND
DEMOCRATIC ELECTIONS, "IT WOULD BE ANOMALOUS TO LIMIT THE REACH OF THE
SECRETARY'S CAUSE OF ACTION BY THE SPECIFICS OF THE UNION MEMBER'S
COMPLAINT."  389 U.S.,AT 483.  WE ACCORDINGLY HELD THAT "IT IS
INCORRECT TO READ (THE EXHAUSTION PROVISION) . . . AS SOMEHOW
CONDITIONING (THE SECRETARY'S) RIGHT TO RELIEF ONCE THAT INTERVENTION
HAS BEEN PROPERLY INVOKED."  389 U.S.,AT 473. 

THAT HOLDING FITS PRECISELY THE SITUATION BEFORE US.  INTERVENTION
WAS PROPERLY INVOKED WHEN THE DISSIDENT UNION MEMBER PURSUED HIS
COMPLAINT THROUGH THE UNION'S INTERNAL PROCEDURES.  WHEN THE
SECRETARY'S SUBSEQUENT INVESTIGATION UNCOVERED ANOTHER TITLE IV
VIOLATION, SURELY IT WAS "A VIOLATION" THAT CONGRESS MEANT SHOULD ALSO
BE CORRECTED.  INDEED, 29 U.S.C. 482(B) PROVIDES THAT IF THE
SECRETARY'S INVESTIGATION LEADS HIM TO CONCLUDE THAT THERE IS "PROBABLE
CAUSE TO BELIEVE THAT A VIOLATION OF THIS SUBCHAPTER HAS OCCURRED" THE
SECRETARY SHOULD SEEK IN A CIVIL ACTION AN ORDER TO SET THE ELECTION
ASIDE AND "TO DIRECT THE CONDUCT OF AN ELECTION . . . IN ACCORDANCE
WITH THE PROVISIONS OF THIS SUBCHAPTER."  THE NEW ELECTION MUST, UNDER
SEC. 482(C), BE CONDUCTED "SO FAR AS LAWFUL AND PRACTICABLE, IN
CONFORMITY WITH THE CONSTITUTION AND BYLAWS OF THE LABOR
ORGANIZATION."  THESE PROVISIONS MAKE INESCAPABLE THE CONCLUSION THAT
CONGRESS AUTHORIZED THE SECRETARY TO GROUND AN ACTION FOR A NEW
ELECTION NOT ONLY ON VIOLATIONS PROCESSED BY THE UNION MEMBER BUT ALSO
ON OTHER VIOLATIONS UNCOVERED IN HIS INVESTIGATION.  THE COURT'S
CONTRARY CONSTRUCTION IGNORES "THE FACT THAT CONGRESS, ALTHOUGH
COMMITTED TO MINIMAL INTERVENTION, WAS OBVIOUSLY EQUALLY COMMITTED TO
MAKING THAT INTERVENTION, ONCE WARRANTED, EFFECTIVE IN CARRYING OUT THE
BASIS AIM OF TITLE IV."  389 U.S.,AT 473. 

MR. JUSTICE WHITE, DISSENTING. 

IF, AS IN THIS CASE, A NEW ELECTION IS ORDERED BECAUSE A CANDIDATE
USED UNION FACILITIES WHEN HE SHOULD NOT HAVE, THE ACT DIRECTS A NEW
ELECTION "UNDER SUPERVISION OF THE SECRETARY AND, SO FAR AS LAWFUL AND
PRACTICABLE, IN CONFORMITY WITH THE CONSTITUTION AND BYLAWS OF THE
LABOR ORGANIZATION."  29 U.S.C. 482(C).  I TAKE IT THEN, THAT THE
SECRETARY IS UNDER NO OBLIGATION, INDEED FORBIDDEN, TO FOLLOW A
PROVISION OF THE BYLAWS OR CONSTITUTION THAT IS UNLAWFUL.  IF, IN
PROCEEDINGS THAT ORDER A NEW ELECTION, THE SECRETARY DISCOVERS IN THE
BYLAWS OR CONSTITUTION A PROVISION REGULATING ELECTIONS THAT THE DEEMS
UNLAWFUL-- SUCH AS THE MEETING-ATTENDANCE RULE-- BUT THE UNION INSISTS
THAT IT IS ENTIRELY LAWFUL, DOES THE SECRETARY SIMPLY IGNORE THE
PROVISION IN HOLDING THE ELECTION, MAY HE OR THE UNION SECURE A
JUDICIAL RULING ON IT, OR IS COURT ACTION FORECLOSED AND THE SECRETARY
REQUIRED TO FOLLOW THE PROVISION SIMPLY BECAUSE A MEMBER IN CHALLENGING
THE ELECTION FAILED TO ATTACK THE MEETING-ATTENDANCE RULE, PROBABLY
BECAUSE IT DID NOT AFFECT HIM? 

I AGREE THAT IF HANTZIS' CLAIM OF USING UNION FACILITIES HAD BEEN
REJECTED, A NEW ELECTION COULD NOT HAVE BEEN ORDERED EVEN THOUGH THE
SECRETARY TURNED UP THE MEETING-ATTENDANCE RULE IN HIS INVESTIGATION
AND DISCOVERED THAT THE BALLOT BOXES HAD ALSO BEEN STUFFED.  BUT IF THE
SECRETARY FINDS AN INVALID BYLAW THAT PURPORTS TO GOVERN A NEW ELECTION
THAT HAS BEEN VALIDLY ORDERED ON A CLAIM THAT HAS BEEN EXHAUSTED, AS IN
THIS CASE, THE SECRETARY APPEARS TO HAVE EXPRESS GROUNDS IN THE ACT,
INDEPENDENT OF THE COMPLAINT-EXHAUSTION REQUIREMENTS, TO INSIST THAT
THE NEW ELECTION BE CONDUCTED IN ACCORDANCE WITH THE LAW AND TO INSIST
THAT A COURT ADJUDICATE THE MATTER IF THE UNION STANDS BY ITS BYLAW
PROVISION. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR PETITIONER. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL GRAY, RICHARD B. STONE, PETER G. NASH, GEORGE T.
AVERY, BEATE BLOCH, AND CORNELIUS S. DONOGHUE, JR. 

MICHAEL H. GOTTESMAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WERE BERNARD KLEIMAN, GEORGE H. COHEN, CARL FRANKEL, AND
JEROME SMITH. 
..END :


















COMMISSIONER V. LINCOLN SAVINGS & LOAN ASSN., 403 U.S. 345 


       COMMISSIONER OF INTERNAL REVENUE V. LINCOLN SAVINGS & LOAN

           ASSN.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 544.  ARGUED FEBRUARY 23, 1971-- DECIDED JUNE 14, 1971 


PAYMENT BY A STATE-CHARTERED SAVINGS AND LOAN ASSOCIATION OF THE
"ADDITIONAL PREMIUM" REQUIRED BY SEC. 404(D) OF THE NATIONAL HOUSINGS
ACT TO BE PAID TO THE FEDERAL SAVINGS AND LOAN INSURANCE CORP. IS NOT
DEDUCTIBLE FOR INCOME TAX PURPOSES AS AN ORDINARY AND NECESSARY
BUSINESS EXPENSE UNDER SEC. 162(A) OF THE INTERNAL REVENUE CODE.  PP.
352-359. 

422 F.2D 90, REVERSED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, HARLAN, BRENNAN, STEWART, WHITE, AND MARSHALL, JJ.,
JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 359. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER THE "ADDITIONAL PREMIUM"
PAID IN 1963 BY A STATE-CHARTERED SAVINGS AND LOAN ASSOCIATION TO THE
FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION UNDER THE COMPLUSION OF
SEC. 404(D) OF THE NATIONAL HOUSING ACT, AS AMENDED, 12 U.S.C. 1727(D),
/1/  IS DEDUCTIBLE BY THE ASSOCIATION, FOR INCOME TAX PURPOSES, AS AN
ORDINARY AND NECESSARY BUSINESS EXPENSE UNDER SEC. 162(A) OF THE
INTERNAL REVENUE CODE OF 1954, 26 U.S.C. 162(A). 

THE COMMISSIONER OF INTERNAL REVENUE DETERMINED A DEFICIENCY OF
$461,454.38 IN THE 1963 CASH BASIS FEDERAL INCOME TAX OF LINCOLN
SAVINGS AND LOAN ASSOCIATION.  NEARLY ALL THE DEFICIENCY WAS
ATTRIBUTABLE TO THE DISALLOWANCE OF A DEDUCTION CLAIMED FOR LINCOLN'S
PAYMENT OF $882,636.86 MADE PURSUANT TO SEC. 404(D).  LINCOLN SOUGHT
REDETERMINATION IN THE TAX COURT.  JUDGE RAUM, IN A DECISION REVIEWED
BY THE COURT WITHOUT DISSENT, UPHELD THE DEFICIENCY.  51 T.C. 82
(1968).  ON APPEAL THE NINTH CIRCUIT REVERSED, ONE JUDGE DISSENTING. 
422 F.2D 90 (1970).  /2/  BECAUSE OF THE IMPORTANCE OF THE ISSUE FOR
THE SAVINGS AND LOAN INDUSTRY AND FOR THE GOVERNMENT, WE GRANTED
CERTIORARI.  400 U.S. 901 (1970). 

        I 

THE PERTINENT FACTS ARE NOT IN DISPUTE.  LINCOLN IS A CALIFORNIA
SAVINGS AND LOAN ASSOCIATION ORGANIZED IN 1925 AND IS LICENSED UNDER
STATE LAW.  IT IS SUBJECT TO DIVISION 2 OF THE CALIFORNIA FINANCIAL
CODE, SEC. 5000 ET SEQ., AND IS ALSO SUBJECT TO THE REGULATIONS OF THE
STATE'S SAVINGS AND LOAN COMMISSIONER.  CALIFORNIA ADMINISTRATIVE CODE,
TIT. 10, C. 2. 

IN 1936 LINCOLN APPLIED FOR MEMBERSHIP IN THE FEDERAL HOME LOAN BANK
OF SAN FRANCISCO (THEN OF LOS ANGELES).  THAT APPLICATION WAS GRANTED
AND LINCOLN HAS REMAINED A MEMBER OF THE BANK SINCE THAT TIME.  THE SAN
FRANCISCO BANK IS ONE OF 12 REGIONAL ONES ESTABLISHED AND SUPERVISED BY
THE FEDERAL HOME LOAN BANK BOARD UNDER THE FEDERAL HOME LOAN BANK ACT
OF 1932, 47 STAT. 725, AS AMENDED, 12 U.S.C. 1421-1449.  THESE BANKS
PROVIDE LIQUIDITY AND FUNDS FOR MORTGAGE LENDING BY MAKING ADVANCES TO
MEMBER INSTITUTIONS AS NEEDED TO MEET UNUSUAL OR HEAVY WITHDRAWAL AND
CREDIT DEMANDS.  EACH MEMBER MUST PURCHASE CAPITAL STOCK IN ITS BANK IN
AN AMOUNT EQUAL TO 1% OF ITS OUTSTANDING "AGGREGATE UNPAID LOAN
PRINCIPAL" AND MAINTAIN THAT PERCENTAGE.  12 U.S.C. 1426(C). 

IN JUNE 1938 LINCOLN BECAME, AND STILL IS, AN INSTITUTION INSURED BY
THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION (FSLIC), A
CORPORATION CREATED BY SEC. 402 OF THE NATIONAL HOUSING ACT, 48 STAT.
1256, 12 U.S.C. 1725, AND UNDER THE DIRECTION OF THE FEDERAL HOME LOAN
BANK BOARD.  BY STATUTE FSLIC HAS THE DUTY TO INSURE THE ACCOUNTS OF
ALL FEDERAL SAVINGS AND LOAN ASSOCIATIONS; IT ALSO MAY INSURE THE
ACCOUNTS OF QUALIFIED STATE-CHARTERED ASSOCIATIONS SUCH AS LINCOLN. 

EACH INSTITUTION SO INSURED WAS ORIGINALLY REQUIRED, BY SEC. 404(A)
OF THE ACT, 48 STAT. 1258, TO PAY FSLIC AN ANNUAL INSURANCE PREMIUM
MEASURED BY THE TOTAL AMOUNT OF ITS ACCOUNTS PLUS CREDITOR
OBLIGATIONS.  /3/  THE STATUTE PROVIDED THAT THESE PREMIUMS WERE TO
CONTINUE ANNUALLY UNTIL FSLIC'S RESERVE FOR LOSSES AMOUNTED TO 5% OF
THE INSURED ACCOUNTS PLUS CREDITOR OBLIGATIONS OF ALL ITS INSURED
INSTITUTIONS, AND AT SUCH INTERVALS THEREAFTER AS WERE NECESSARY TO
MAINTAIN THE RESERVE AT THAT LEVEL. 

THIS PATTERN WAS CHANGED, HOWEVER, EFFECTIVE JANUARY 1, 1962, BY THE
ACT OF SEPTEMBER 8, 1961, 75 STAT. 482.  THAT ACT, BY ITS SEC. 3,
AMENDED SEC. 404(A), 12 U.S.C. 1727(A), TO ITS PRESENT FORM.  /4/ 

A PRIMARY RESERVE "WHICH SHALL BE THE GENERAL RESERVE," AND A SECONDARY
RESERVE.  THE REQUIREMENT FOR THE ANNUAL PREMIUM OF 1/12 OF 1% IS
CONTINUED, BUT THE LEVEL OF THE GENERAL RESERVE WAS LOWERED FROM 5% TO
2% OF THE TOTAL OF ACCOUNTS PLUS CREDITOR OBLIGATIONS.  SECTIONS
404(B)(1) AND 404(B)(2), 12 U.S.C. 1727(B)(1) AND 1727(B)(2).  THE 1961
ACT, MOREOVER, ADDED SUBSECTION (D) TO SEC. 404.  12 U.S.C. 1727(D). 
THIS REQUIRED THAT THE INSURED INSTITUTION PAY FSLIC, WITH RESPECT TO
ANY CALENDAR YEAR, AN "ADDITIONAL PREMIUM IN THE NATURE OF A PREPAYMENT
WITH RESPECT TO FUTURE PREMIUMS OF SUCH INSTITUTION UNDER SUBSECTION
(B) . . . ."  THIS "ADDITIONAL PREMIUM" WAS, AND STILL IS, 2% OF THE
NET INCREASE IN THE TOTAL OF THE INSTITUTION'S INSURED ACCOUNTS, LESS
ANY AMOUNT THE INSTITUTION IS REQUIRED, BY 12 U.S.C. 1426(C), AS OF THE
END OF THAT YEAR, TO EXPEND IN PURCHASING STOCK IN THE FEDERAL HOME
LOAN BANK.  /5/  THE ADDITIONAL PREMIUM IS TO BE CREDITED TO THE
SECONDARY RESERVE.  SECTION 404(A), 12 U.S.C. 1727(A). 

AS NOTED, FSLIC'S STATUTORILY PRESCRIBED PRIMARY RESERVE IS ITS
GENERAL RESERVE.  IT IS CREDITED ANNUALLY WITH THE CORPORATION'S NET
INCOME; THIS NET THUS REPRESENTS RETAINED EARNINGS.  THE SEC. 404(B)(1)
PREMIUM PAYMENTS, THAT IS, THE 1/12 OF 1% REQUIRED OF EACH INSURED
INSTITUTION, CONSTITUTE A MAJOR ITEM IN FSLIC'S GROSS INCOME.  TO THE
EXTENT THESE PREMIUM PAYMENTS EXCEED THE CORPORATION'S EXPENSES AND
INSURANCE LOSSES FOR THE YEAR, THEY FLOW AS PART OF FSLIC'S NET TO THE
PRIMARY RESERVE.  THE INSURED INSTITUTIONS HAVE NO PROPERTY INTEREST IN
THE FUNDS CONSTITUTING THE PRIMARY RESERVE. 

THE SECONDARY RESERVE SUBSISTS SEPARATELY AND POSSESSES DIFFERENT
CHARACTERISTICS.  IT, OF COURSE, RECEIVES THE 2% "ADDITIONAL PREMIUM,"
TO THE EXTENT SUCH IS PAYABLE, REQUIRED BY SEC. 404(D) FROM EACH
INSURED INSTITUTION.  FSLIC MUST ALSO CREDIT THE SECONDARY RESERVE
ANNUALLY WITH A "RETURN" ON THE SECONDARY RESERVE'S "OUTSTANDING
BALANCES . . . AT A RATE EQUAL TO THE AVERAGE ANNUAL RATE OF RETURN TO
THE CORPORATION DURING THE YEAR . . . ON THE INVESTMENTS HELD BY THE
CORPORATION IN OBLIGATIONS OF, OR GUARANTEED AS TO PRINCIPAL AND
INTEREST BY, THE UNITED STATES."  SECTIONS 404(A) AND 404(E), 12 U.S.C.
1727(A) AND 1727(E).  IN CONTRAST WITH THE PRIMARY RESERVE, THE
SECONDARY RESERVE IS "AVAILABLE . . . ONLY FOR LOSSES OF THE
CORPORATION" AND THEN "ONLY TO SUCH EXTENT AS OTHER ACCOUNTS OF THE
CORPORATION WHICH ARE AVAILABLE THEREFOR ARE INSUFFICIENT FOR SUCH
LOSSES."  SECTION 404(E), 12 U.S.C. 1727(E). 

EACH INSURED INSTITUTION HAS A PRO RATA SHARE IN THE SECONDARY
RESERVE.  SECTION 404(E) STATES THAT THIS IS NOT ASSIGNABLE OR
TRANSFERABLE EXCEPT AS FSLIC, BY REGULATION OR OTHERWISE, PROVIDES "IN
CASES OF MERGER OR CONSOLIDATION, TRANSFER OF BULK ASSETS . . . AND
SIMILAR TRANSACTIONS . . . ."  AN INSURED INSTITUTION MAY OBTAIN A CASH
REFUND OF ITS PRO RATA SHARE IF ITS STATUS AS AN INSURED IS TERMINATED,
SEC. 407, 12 U.S.C. 1730, OR IF A RECEIVER OR OTHER LEGAL CUSTODIAN IS
APPOINTED FOR PURPOSES OF LIQUIDATION, OR IF THE CORPORATION DETERMINES
THAT THE INSTITUTION HAS GONE INTO LIQUIDATION.  SECTION 404(F), 12
U.S.C. 1727(F). 

FOLLOWING ANY DECEMBER 31 ON WHICH THE AGGREGATE OF THE PRIMARY
RESERVE AND THE SECONDARY RESERVE EQUALS OR EXCEEDS 2% OF THE TOTAL OF
ALL INSURED ACCOUNTS PLUS CREDITOR OBLIGATIONS OF ALL THE INSURED
INSTITUTIONS (AND THE PRIMARY RESERVE ALONE DOES NOT EQUAL OR EXCEED
SUCH 2%), THE ADDITIONAL PREMIUMS REQUIRED BY SEC. 404(D) ARE
SUSPENDED.  SECTION 404(G), 12 U.S.C. 1727(G).  /6/  WHEN THIS TAKES
PLACE, THE PRO RATA SHARE OF EACH INSURED INSTITUTION IN THE SECONDARY
RESERVE IS USED, TO THE EXTENT AVAILABLE, TO DISCHARGE THE
INSTITUTION'S OBLIGATION TO PAY ITS REGULAR, OR BASIC, PREMIUM REQUIRED
FOR THAT YEAR UNDER SEC. 404(B)(1).  THEREAFTER, IF THE AGGREGATE OF
THE TWO RESERVES DECREASES TO LESS THAN 1 3/4%, THE OBLIGATION TO PAY
THE ADDITIONAL PREMIUM UNDER SEC. 404(D) RESUMES AND THE PRO RATA SHARE
IN THE SECONDARY RESERVE IS NO LONGER USED TO PAY THE SEC. 404(B)(1)
REGULAR PREMIUM.  WHENEVER, FOLLOWING ANY DECEMBER 31, THE PRIMARY
RESERVE ALONE EQUALS OR EXCEEDS SUCH 2%, THE CORPORATION SHALL PAY IN
CASH TO EACH INSURED INSTITUTION ITS PRO RATA SHARE OF THE SECONDARY
RESERVE AND SHALL NOT THEREAFTER ACCEPT FURTHER SEC. 404(D)
PREPAYMENTS.  /7/ 

FSLIC MAINTAINS A SEPARATE ACCOUNT FOR EACH INSURED INSTITUTION'S
SHARE OF THE SECONDARY RESERVE.  IT SUBMITS TO THE INSTITUTION ANNUALLY
A STATEMENT DISCLOSING THAT SHARE AND THE INTEREST CREDITED TO IT.  /8/
UNDER REGULATIONS ISSUED BY THE CALIFORNIA SAVINGS AND LOAN
COMMISSIONER AND BY THE FEDERAL HOME LOAN BANK BOARD, LINCOLN REPORTS
ITS INTEREST IN FSLIC'S SECONDARY RESERVE AS AN ASSET ON ITS BALANCE
SHEET AND TREATS THE INTEREST EARNED ON ITS PRO RATA SHARE OF THE
SECONDARY RESERVE AS INCOME.  /9/ 

FSLIC ANNUALLY SENDS LINCOLN AN "INSURANCE PREMIUM NOTICE" FOR THE
BASIC PREMIUM DUE UNDER SEC. 404(B)(1).  IT ALSO SENDS LINCOLN ANNUALLY
A "NOTICE OF INSURANCE PREMIUM PREPAYMENT" FOR THE AMOUNT, IF ANY, DUE
UNDER SEC. 404(D).  FOR 1963 THE FORMER WAS $135,760.52 AND THE LATTER
WAS $882,636.86.  EACH WAS PAID BY LINCOLN. 

ON ITS 1963 FEDERAL INCOME TAX RETURN LINCOLN DEDUCTED BOTH ITS SEC.
404(B)(1) PAYMENT AND ITS SEC. 404(D) PAYMENT AS ORDINARY AND NECESSARY
BUSINESS EXPENSES UNDER SEC. 162(A) OF THE CODE.  THE COMMISSIONER
ALLOWED THE FORMER, BUT DISALLOWED THE LATTER. 

THE TAX COURT HELD THAT THE SEC. 404(D) PAYMENT WAS A NONDEDUCTIBLE
CAPITAL EXPENDITURE AND WAS NOT AN ORDINARY AND NECESSARY BUSINESS
EXPENSE, AND THAT THE PAYMENT WAS DEDUCTIBLE ONLY WHEN USED FROM THE
SECONDARY RESERVE TO PAY SEC. 404(B)(1) PREMIUMS OR TO MEET ACTUAL
LOSSES OF FSLIC.  AS NOTED ABOVE, THE NINTH CIRCUIT REVERSED BY A
DIVIDED PANEL. 

       II 

TO QUALIFY AS AN ALLOWABLE DEDUCTION UNDER SEC. 162(A) OF THE 1954
CODE, AN ITEM MUST (1) BE "PAID OR INCURRED DURING THE TAXABLE YEAR,"
(2) BE FOR "CARRYING ON ANY TRADE OR BUSINESS," (3) BE AN "EXPENSE,"
(4) BE A "NECESSARY" EXPENSE, AND (5) BE AN "ORDINARY" EXPENSE.  THIS
COURT HAS CONSIDERED THESE SEVERAL REQUIREMENTS, OR ONE OR MORE OF
THEM, IN A NUMBER OF CASES.  SEE, FOR EXAMPLE, WELCH V. HELVERING, 290
U.S. 111 (1933); HELVERING V. WINMILL, 305 U.S. 79 (1938); DEPUTY V. DU
PONT, 308 U.S. 488 (1940); INTERSTATE TRANSIT LINES V. COMMISSIONER,
319 U.S. 590 (1943); COMMISSIONER V. HEININGER, 320 U.S. 467 (1943);
COMMISSIONER V. TELLIER, 383 U.S. 687 (1966); WOODWARD V. COMMISSIONER,
397 U.S. 572 (1970); UNITED STATES V. HILTON HOTELS CORP., 397 U.S. 580
(1970). 

IN WELCH MR. JUSTICE CARDOZO EMPHASIZED THE DIFFERENCE BETWEEN THE
"ORDINARY" AND THE "NECESSARY" AND THE NEED FOR SATISFYING BOTH IN
ORDER TO ACHIEVE THE DEDUCTION.  IT IS IN THAT CASE WHERE HIS WELL
KNOWN, BUT ELUSIVE, SUGGESTION FOR THE ANSWER APPEARS: 

"THE STANDARD SET UP BY THE STATUTE IS NOT A RULE OF LAW; IT IS
RATHER A WAY OF LIFE.  LIFE IN ALL ITS FULLNESS MUST SUPPLY THE ANSWER
TO THE RIDDLE."  290 U.S.,AT 115.  IN DU PONT MR. JUSTICE DOUGLAS
STRESSED, 308 U.S.,AT 493, 495-496, THE ACCEPTED RULE OF THE "POPULAR
OR RECEIVED IMPORT" OF A STATUTE'S WORDS, AND FURTHER EMPHASIZED THAT
"(ORDINARY HAS THE CONNOTATION OF NORMAL, USUAL, OR CUSTOMARY," AND
THAT EACH CASE "TURNS ON ITS SPECIAL FACTS."  IN TELLIER MR. JUSTICE
STEWART ALSO EMPHASIZED THE DOUBLE REQUIREMENT OF "ORDINARY" AND
"NECESSARY" AND SAID: 

"OUR DECISIONS HAVE CONSISTENTLY CONSTRUED THE TERM 'NECESSARY'  AS
IMPOSING ONLY THE MINIMAL REQUIREMENT THAT THE EXPENSE BE 'APPROPRIATE
AND HELPFUL' FOR 'THE DEVELOPMENT OF THE (TAXPAYER'S) BUSINESS' . . . .
THE PRINCIPAL FUNCTION OF THE TERM 'ORDINARY' IN SEC. 162(A) IS TO
CLARIFY THE DISTINCTION, OFTEN DIFFICULT, BETWEEN THOSE EXPENSES THAT
ARE CURRENTLY DEDUCTIBLE AND THOSE THAT ARE IN THE NATURE OF CAPITAL
EXPENDITURES, WHICH, IF DEDUCTIBLE AT ALL, MUST BE AMORTIZED OVER THE
USEFUL LIFE OF THE ASSET."  383 U.S.,AT 689-690. 

SO MUCH FOR GENERALITIES.  HERE CLEARLY, AS TO ITS SEC. 404(D)
"ADDITIONAL PREMIUM" PAYMENT IN 1963, LINCOLN SATISFIED THREE OF THE
FIVE LISTED REQUIREMENTS.  THE PAYMENT WAS MADE DURING THE TAXABLE
YEAR.  IT WAS MADE IN CARRYING ON A TRADE OR BUSINESS.  AND IT WAS A
"NECESSARY" PAYMENT, FOR IT WAS COMPELLED BY THE PROVISIONS OF THE
NATIONAL HOUSING ACT.  THE GOVERNMENT SO CONCEDES.  THE FOCUS,
THEREFORE, AND OUR ONLY CONCERN HERE, IS WHETHER THE PAYMENT WAS AN
EXPENSE AND AN ORDINARY ONE WITHIN THE MEANING OF SEC. 162(A) OF THE
CODE. 

LINCOLN'S ARGUMENT ESSENTIALLY IS THAT ITS SEC. 404(D) PAYMENT WAS
REALLY NO DIFFERENT FROM ITS SEC. 404(B)(1) PAYMENT FOR BOTH WERE
PREMIUMS FOR INSURANCE OF ITS DEPOSITORS' ACCOUNTS AND CREDITOR
OBLIGATIONS; THAT ALL SIMILARLY SITUATED INSURED SAVINGS AND LOAN
ASSOCIATIONS (THERE WERE 4,419 ON DECEMBER 31, 1963) PAID THE SEC.
404(D) PREMIUM; AND THAT THE POSSIBILITY OF A FUTURE BENEFIT FROM THE
EXPENDITURE DOES NOT SERVE TO MAKE IT CAPITAL IN NATURE AS
DISTINGUISHED FROM AN EXPENSE. 

WE FEEL THAT THE VERY RECITAL OF THE FACTS AND OF THE STRUCTURE AND
OPERATION OF FSLIC'S RESERVES, IN PART I OF THIS OPINION, ITSELF
PROVIDES AN ANSWER ADVERSE TO LINCOLN'S ARGUMENT.  IT IS NOT ENOUGH, IN
ORDER THAT AN EXPENDITURE QUALIFY AS AN INCOME TAX DEDUCTION, THAT IT
MERELY BE ONE PAID BY ALL SIMILARLY INSURED ASSOCIATIONS, OR THAT IT
SERVES TO FORTIFY FSLIC'S INSURANCE PURPOSE AND OPERATION.  FURTHER,
THE PRESENCE OF AN ENSUING BENEFIT THAT MAY HAVE SOME FUTURE ASPECT IS
NOT CONTROLLING; MANY EXPENSES CONCEDEDLY DEDUCTIBLE HAVE PROSPECTIVE
EFFECT BEYOND THE TAXABLE YEAR.     WHAT IS IMPORTANT AND CONTROLLING,
WE FEEL, IS THAT THE SEC. 404(D) PAYMENT SERVES TO CREATE OR ENHANCE
FOR LINCOLN WHAT IS ESSENTIALLY A SEPARATE AND DISTINCT ADDITIONAL
ASSET AND THAT, AS AN INEVITABLE CONSEQUENCE, THE PAYMENT IS CAPITAL IN
NATURE AND NOT AN EXPENSE, LET ALONE AN ORDINARY EXPENSE, DEDUCTIBLE
UNDER SEC. 162(A) IN THE ABSENCE OF OTHER FACTORS NOT ESTABLISHED
HERE.  WE NOTE THE FOLLOWING: 

A. THE SEC. 404(D) PAYMENT TO FSLIC, WHEN MADE, IS SUBJECT TO
POSITIVE AND RIGID CONTINUING CONTROLS.  THE PAYMENT MUST FLOW INTO THE
SECONDARY RESERVE.  THAT RESERVE IS PRIMARILY AVAILABLE ONLY FOR STATED
AND CIRCUMSCRIBED PURPOSES, NAMELY, THE PAYMENT OF LOSSES AND THEN ONLY
TO THE EXTENT ALL OTHER ASSETS OF FSLIC ARE INSUFFICIENT TO COVER THOSE
LOSSES.  THE SECONDARY RESERVE THUS HAS COMPLETE SENIORITY WITH RESPECT
TO DEMANDS UPON FSLIC.  IT IS THE ASSET LAST CALLED UPON. 

B. THE INSURED INSTITUTION HAS A DISTINCT AND RECOGNIZED PROPERTY
INTEREST IN THE SECONDARY RESERVE.  THIS IS REVEALED BY:  (1) THE
RECOGNITION, IN SEC. 404(E), OF TRANSFERABILITY OF THE INSTITUTION'S
PRO RATA SHARE THEREIN.  THIS TRANSFERABILITY IS LIMITED AND
RESTRICTED, TO BE SURE, BUT IT EXISTS FOR APPROVED SITUATIONS OF
MERGER, CONSOLIDATION, AND THE LIKE.  (2) THE PROSPECTIVE REFUND, AND
IN CASH AT THAT, OF THE INSTITUTION'S PRO RATA SHARE UPON TERMINATION
OF ITS INSURED STATUS, OR UPON RECEIVERSHIP OR LIQUIDATION, OR WHEN THE
PRIMARY RESERVE ALONE REACHES THE SUSPENSION LEVEL.  (3) THE USE OF THE
INSTITUTION'S PRO RATA SHARE TO PAY ITS BASIC PREMIUM UNDER SEC.
404(B)(1) WHEN THE SUSPENSION LEVEL IS REACHED BY THE AGGREGATE OF THE
PRIMARY AND SECONDARY RESERVES.  (4) FSLIC'S MAINTENANCE OF A SEPARATE
ACCOUNT FOR EACH INSURED INSTITUTION'S SHARE IN THE SECONDARY RESERVE. 
(5) THE STATUTORILY REQUIRED ANNUAL CREDIT FROM FSLIC'S EARNINGS TO THE
INSTITUTION'S SHARE OF THE SECONDARY RESERVE.  THE SHARE THUS IS AN
INCOME-PRODUCING ENTITY AND THE INCOME INURES TO THE BENEFIT OF THE
INSURED INSTITUTION. 

C. ALTHOUGH COMPULSORY ACCOUNTING RULES DO NOT CONTROL TAX
CONSEQUENCES, OLD COLONY R. CO. V. COMMISSIONER, 284 U.S. 552, 562
(1932), THERE IS SIGNIFICANCE IN THE FACT THAT ALL CONCERNED HERE HAVE
RECOGNIZED THE PRESENCE AND THE SIGNIFICANCE OF THIS PROPERTY INTEREST
IN THE SECONDARY RESERVE.  FSLIC SUBMITS ANNUAL STATEMENTS TO ITS
INSURED INSTITUTIONS SHOWING PAYMENTS AND CREDITS TO THEIR RESPECTIVE
SHARES.  LINCOLN, ALBEIT BY FEDERAL AND STATE REQUIREMENTS, SHOWS THAT
INTEREST AS AN ASSET ON ITS BALANCE SHEET AND THE CREDIT AS INCOME. 
AND LINCOLN'S PARENT CORPORATION, FIRST LINCOLN FINANCIAL CORPORATION,
ALTHOUGH NOT SUBJECT TO SUCH REGULATION, HAS DONE THE SAME IN ITS
FINANCIAL STATEMENTS. 

D. THE NATURE OF THE ADJUSTMENTS EFFECTED BY THE 1961 ACT IS OF SOME
IMPORT.  DUE PRIMARILY TO THE RAPID GROWTH OF INSURED INSTITUTIONS IN
THE YEARS PRECEDING THE PASSAGE OF THAT ACT, THE RATIO OF FSLIC'S
RESERVES TO POTENTIAL LIABILITY HAD DECLINED.  S. REP. NO. 778, 87TH
CONG., 1ST SESS., 2, 12; HEARING ON H.R. 7108 AND H.R. 7109 BEFORE
SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON BANKING AND CURRENCY, 87TH
CONG., 1ST SESS., 10.  BY THE ACT CONGRESS REDUCED THE REQUIREMENT FOR
FEDERAL HOME LOAN BANK STOCK AND AT THE SAME TIME CHANNELED NEW FUNDS
TO FSLIC'S SECONDARY RESERVE.  THE SEC. 404(D) PAYMENT AND THE
REDUCTION IN THE FHLB STOCK PURCHASE REQUIREMENT WERE EFFECTUATED
TOGETHER.  CERTAINLY THE FHLB STOCK IS AN ASSET AND ITS ACQUISITION IS
CAPITAL IN NATURE.  THE COMPLEMENTARY SEC. 404(D) PAYMENT IS DIRECTED
TO A FUND.  EACH IS A DEVICE DESIGNED TO ACHIEVE A PARTICULAR AND
COMMON RESULT, NAMELY, THE PROVIDING OF PROTECTION TO THE INSURED
INSTITUTION AND TO ITS DEPOSITIORS BY WAY, IN THE ONE CASE, OF
LIQUIDITY AND AVAILABILITY OF LOAN FUNDS AND, IN THE OTHER, BY WAY OF
SEGREGATED AMOUNTS AVAILABLE TO OFFSET POSSIBLE LOSSES.  EACH IS MORE
PERMANENT THAN TEMPORARY.  EACH PARTAKES MORE OF THE CHARACTER OF AN
ASSET THAN OF AN EXPENSE.  AND THE TWO ARE MADE COMPLEMENTARY BY THE
VERY PROVISIONS OF SEC. 404(D). 

WE DO NOT REGARD AS CONTRARILY PERSUASIVE, OR AS IMPOSING AN EXPENSE
CHARACTERISTIC ON THE SEC. 404(D) PAYMENTS, SIX FEATURES EMPHASIZED BY
LINCOLN OR BY THE COURT OF APPEALS: 

A. THE POSSIBILITY THAT LINCOLN'S SHARE OF THE SECONDARY RESERVE
WOULD BE CONSUMED BY FSLIC'S LOSSES AND THUS WOULD NEVER BE REFUNDED TO
LINCOLN.  THE TAX COURT POINTED OUT, 51 T.C.,AT 97, THAT THIS HAZARD
EXISTS WITH ANY ROUTINE INVESTMENT IN A BANK OR AN INSURANCE COMPANY
AND YET ITS PRESENCE DOES NOT MAKE THAT INVESTMENT AN EXPENSE RATHER
THAN A CAPITAL UNDERTAKING. 

B. THE GENERAL UNLIKELIHOOD, AS A PRACTICAL MATTER, OF LINCOLN'S
RECOVERY OF ITS PRO RATA SHARE OF THE SECONDARY RESERVE.  IT IS
SUGGESTED THAT LIQUIDATION WILL NOT TAKE PLACE BECAUSE IN THIS DAY
COPRORATE ACTIVITY IS ASSUMED TO BE A CONTINUING PROCESS AND NOT
LIMITED IN DURATION.  IT IS FURTHER POINTED OUT THAT TERMINATION OF
FSLIC INSURANCE IS A BUSINESS IMPOSSIBILITY FOR IT WOULD RESULT IN MASS
WITHDRAWAL OF DEPOSITORS' ACCOUNTS AND IN INSTITUTIONAL SUICIDE.  IT
MAY WELL BE TRUE THAT LIQUIDATION IS UNLIKELY AND THAT TERMINATION OF
INSURANCE WOULD BE AN UNDESIRABLE BUSINESS DECISION.  THE SAME WAY
USUALLY BE SAID, HOWEVER, OF A MANUFACTURING CORPORATION'S INVESTMENT
IN PLANT AND EQUIPMENT OR IN PATENTS OR IN MANY OTHER ASSETS BASIC TO
ITS BUSINESS AND FUNCTION. 

C. THE CLAIMED IDENTITY OF PURPOSE OF THE SEC. 404(B)(1) AND SEC.
404(D) PAYMENTS, NAMELY, THE PROVIDING OF INSURANCE FOR DEPOSITORS'
ACCOUNTS.  THE FORMER, HOWEVER, IS ONLY ANNUAL IN PHASE AND OPERATION. 
IT PROVIDES INSURANCE FOR THE YEAR.  WHEN THE YEAR PASSES, THE
INSURANCE CEASES.  THE LATTER, HOWEVER, PROVIDES A FUND AVAILABLE FOR
LOSSES NOT ONLY IN THE CURRENT YEAR, BUT IN THE FUTURE.  IT IS A FUND
CAPABLE UNDER CERTAIN CIRCUMSTANCES OF FINDING ITS WAY BACK TO THE
COFFERS OF THE INSURED INSTITUTIONS.  THE ULTIMATE PURPOSE OF THE TWO
PAYMENTS MAY HAVE MUCH IN COMMON, BUT THE ROUTE AND THE LIFE OF EACH
DIFFER FROM THOSE OF THE OTHER. 

D. THE COMPULSORY CHARACTER OF THE PAYMENT IMPOSED BOTH BY THE
GOVERNING STATUTE AND THE ECONOMIC FACTS OF LIFE.  LINCOLN CONCEDES,
HOWEVER, "COMPULSION, WHETHER LEGAL OR ECONOMIC, SHOULD HAVE NO BEARING
UPON THE QUESTION WHETHER A PAYMENT IS AN EXPENSE OR A CAPITAL
EXPENDITURE."  /10/ 

E. THE ANNUAL ACCOUNTING CONCEPT OF THE INCOME TAX.  THIS FACTOR IS
RELEVANT WHEN THE YEAR OF DEDUCTION IS IN ISSUE.  IT HAS LESS
CONSEQUENCE IN THE DETERMINATION OF WHETHER AN ITEM IS OR IS NOT AN
ORDINARY EXPENSE.  AS TO THIS, THE MERE MATURING OF LIABILITY IS NOT
ENOUGH. 

F. THE SUGGESTION THAT THE SEC. 404(D) PAYMENT IS NOT INCLUDED IN
THE LIST OF NONDEDUCTIBLE CAPITAL EXPENDITURES SPECIFIED BY SEC. 263 OF
THE 1954 CODE.  IT IS CLEAR FROM THE VERY LANGUAGE OF SECS. 162(A) AND
263 THAT THE TWO SECTIONS TOGETHER ARE NOT ALL INCLUSIVE, AND THAT SEC.
263 DOES NOT PROVIDE A COMPLETE LIST OF NONDEDUCTIBLE EXPENDITURES. 
IOWA SOUTHERN UTILITIES CO. V. COMMISSIONER, 333 F.2D 382, 385 (CA8
1964), CERT. DENIED, 379 U.S. 946; GENERAL BANCSHARES CORP. V.
COMMISSIONER, 326 F.2D 712, 716 (CA8 1964), CERT. DENIED, 379 U.S.
832.  SEE HELVERING V. WINMILL, 305 U.S. 79 (1938); WOODWARD V.
COMMISSIONER, 397 U.S. 572 (1970); UNITED STATES V. HILTON HOTELS
CORP., 397 U.S. 580 (1970). 

        III 

LINCOLN'S PRO RATA SHARE OF THE SECONDARY RESERVE, OF COURSE, IS NOT
WITHOUT ITS TAX ASPECTS.  IF ITS SHARE IS USED TO PAY LOSSES OR IF,
WHEN THE SUSPENSION LEVEL IS REACHED, IT IS DEVOTED TO THE PAYMENT OF
LINCOLN'S SEC. 404(B)(1) PREMIUM, A DEDUCTION AT THAT TIME FOR THE
AMOUNT SO USED WOULD APPEAR TO BE IN ORDER.  INDEED, THE INTERNAL
REVENUE SERVICE HAS SO RULED.  REV. RUL. 66-49, 1966-1 CUM.BULL.  36,
37.  CF. TREAS. REG. ON INCOME TAX SEC. 1.162-13. 

WE EMPHASIZE THAT JUST AS COMPULSORY ACCOUNTING IS NOT CONTROLLING
TAXWISE, OLD COLONY R. CO. V. COMMISSIONER, SUPRA, SO THE STATUTORY
LABELS OF "PREPAYMENT" AND "ADDITIONAL PREMIUM" CONTAINED IN SEC.
404(D) ARE NOT CONTROLLING.  BURNETT V. COMMISSIONER, 356 F.2D 755, 758
(CA5 1966), CERT. DENIED, 385 U.S. 832.  WE ALSO EMPHASIZE THAT THE
FACT THAT A PAYMENT IS IMPOSED COMPULSORILY UPON A TAXPAYER DOES NOT IN
AND OF ITSELF MAKE THAT PAYMENT AN ORDINARY AND NECESSARY EXPENSE
WITHIN THE MEANING OF SEC. 162(A) OF THE 1954 CODE. 

WE THEREFORE CONCLUDE THAT LINCOLN'S SEC. 404(D) PAYMENT MADE IN
1963 IS NOT DEDUCTIBLE UNDER SEC. 162(A).  SEE WICHITA STATE BANK &
TRUST CO. V. COMMISSIONER, 69 F.2D 595, 596 (CA5 1934), CERT. DENIED,
293 U.S. 562. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

              IT IS SO ORDERED. 

/1/  SECTION 404(D), AS AMENDED BY THE ACT OF SEPT. 8, 1961, SEC.6,
75 STAT. 483, READ: 

"(D) EACH INSURED INSTITUTION, EXCEPT AS OTHERWISE PROVIDED IN THIS
SUCH MANNER AS THE CORPORATION SHALL BY REGULATIONS OR OTHERWISE
PRESCRIBE, AN ADDITIONAL PREMIUM IN THE NATURE OF A PREPAYMENT WITH
RESPECT TO FUTURE PREMIUMS OF SUCH INSTITUTION UNDER SUBSECTION (B)
EQUAL TO 2 PER CENTUM OF THE NET INCREASE IN ALL ACCOUNTS OF ITS
INSURED MEMBERS DURING THE NEXT PRECEDING CALENDAR YEAR, LESS AN AMOUNT
EQUAL TO ANY REQUIREMENT, AS OF THE END OF SUCH CALENDAR YEAR, FOR THE
PURCHASE OF STOCK OF THE FEDERAL HOME LOAN BANK OF WHICH SUCH
INSTITUTION IS A MEMBER, CALCULATED IN ACCORDANCE WITH THE PROVISIONS
OF SUBSECTION (C) OF SECTION 6 OF THE FEDERAL HOME LOAN BANK ACT AND
WITHOUT REAGRD TO ANY NET INCREASE DURING SUCH CALENDAR YEAR IN ITS
HOLDINGS OF SUCH STOCK, AND SUCH PREPAYMENTS SHALL BE CREDITED TO THE
SECONDARY RESERVE . . . ."  THE FOREGOING IS THE FORM OF THE STATUTE IN
EFFECT DURING 1963.  SUBSECTION (D) WAS FURTHER AMENDED BY THE ACT OF
SEPT. 21, 1968, SEC. 6(A), 82 STAT. 858, AND BY THE ACT OF DEC. 24,
1969, SEC. 416(C)(1), 83 STAT. 401, IN WAYS OF NO SIGNIFICANCE HERE. 

/2/  ACCORD, AS TO FEDERAL SAVINGS AND LOAN ASSOCIATIONS:
WASHINGTON FED. S. & L. ASSN. V. UNITED STATES, 304 F.SUPP.  1072 (SD
FLA. 1969), APPEAL PENDING IN THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT; FIRST FED. S. & L. ASSN. V. UNITED STATES, 288
F.SUPP.  477 (WD MO. 1968). 

/3/  FOR MORE THAN A DECADE BEFORE 1963 THE ANNUAL PREMIUM WAS AT
THE RATE OF 1/12 OF 1% OF THAT TOTAL, 64 STAT. 259; PRIOR THERETO THE
PREMIUM HAD BEEN, SUCCESSIVELY, 1/4 AND 1/8 OF 1%.  48 STAT. 1258; 49
STAT. 298. 

/4/ SECTION 404. 

"(A) THE CORPORATION SHALL ESTABLISH A PRIMARY RESERVE WHICH SHALL
BE THE GENERAL RESERVE OF THE CORPORATION AND A SECONDARY RESERVE TO
WHICH SHALL BE CREDITED THE AMOUNTS OF THE PREPAYMENTS MADE BY INSURED
INSTITUTIONS PURSUANT TO SUBSECTION (D) AND THE CREDITS MADE PURSUANT
TO THE FIRST SENTENCE OF SUBSECTION (E)." 

/5/  THE 1961 ACT, BY ITS SEC. 2, REPEALED SEC. 6(1) OF THE FEDERAL
HOME LOAN BANK ACT, 12 U.S.C. 1426(1), WHICH HAD THE EFFECT OF REDUCING
FROM 2% TO 1% THE STOCK AN INSURED INSTITUTION IS REQUIRED TO HOLD IN
RELATION TO ITS OUTSTANDING UNPAID LOAN PRINCIPAL.  (THE 2% REQUIREMENT
HAD BEEN PROVIDED BY THE ACT OF JUNE 27, 1950, SEC. 2, 64 STAT. 257.) 
IT WAS CONTEMPLATED THAT FOR MOST INSTITUTIONS THIS REDUCTION WOULD
APPROXIMATELY OFFSET THE ADDITIONAL PAYMENT TO THE SECONDARY RESERVE
REQUIRED UNDER SEC. 404(D).  H.R. REP. NO. 823, 87TH CONG., 1ST SESS.,
2 (1961); S. REP. NO. 778, 87TH CONG., 1ST SESS., 1-2 (1961). 

/6/  THE ACT OF DEC. 23, 1969, PUB. L. 91-151, SEC. 6(A), 83 STAT.
375, CHANGED, EFFECTIVE AFTER 1969, THE APPLICABLE RESERVE AND PREMIUM
MEASURES TO THE DESIGNATED PERCENTAGES OF ONLY "ACCOUNTS"  RATHER THAN
ACCOUNTS PLUS "CREDITOR OBLIGATIONS." 

/7/  IN 1961 FSLIC PROJECTED THAT THE AGGREGATE OF THE PRIMARY AND
SECONDARY RESERVES WOULD EQUAL OR EXCEED 2% OF ALL ACCOUNTS AND
CREDITOR OBLIGATIONS OF ALL INSURED INSTITUTIONS BY 1970; THAT NO
PAYMENTS TO THE SECONDARY RESERVE WOULD BE REQUIRED FOR 1971-1975 AND
1980-1995; THAT THE PRIMARY RESERVE ALONE WOULD REACH THE 2% LEVEL BY
1995; AND THAT THE SECONDARY RESERVE WOULD BE CONSUMED BY 1995 IN
DISCHARGING THE INSURED INSTITUTIONS' PREMIUM OBLIGATIONS UNDER SEC.
404(B)(1). 

AS A CONSEQUENCE OF THE 1969 AMENDMENTS EFFECTED BY PUB. L. 91-151,
ELIMINATING CREDITOR OBLIGATIONS IN MEASURING THE ADEQUACY OF THE
RESERVES, THE AGGREGATE OF FSLIC'S PRIMARY AND SECONDARY RESERVES
REACHED THE 2% SUSPENSION LEVEL IN 1969 RATHER THAN 1970.  BEGINNING IN
1970 THE SECONDARY RESERVE IS BEING USED TO FULFILL THE INSTITUTIONS'
PREMIUM OBLIGATIONS UNDER SEC. 404(B)(1). 

/8/  AS OF DECEMBER 31, 1963, LINCOLN'S SHARE AMOUNTED TO
$1,034,689.86.  AS OF DECEMBER 31, 1967, IT WAS $4,922,115.46.  THIS
HAD BEEN ACCUMULATED SINCE THE SEC. 404(D) AND (E) PAYMENTS AND CREDITS
BEGAN AS REQUIRED BY THE 1961 ACT. 

/9/  THE INTERNAL REVENUE SERVICE HAS RULES THAT, FOR A CASH BASIS
TAXPAYER, THIS INTEREST IS NOT TAXABLE IN THE YEAR EARNED, BUT ONLY
WHEN IT IS UTILIZED FROM THE SECONDARY RESERVE TO PAY THE INSTITUTION'S
SEC. 404(B)(1) PREMIUM OR WHEN IT IS OTHERWISE MADE AVAILABLE TO THE
INSTITUTION.  REV. RUL. 66-49, 1966-1 CUM.BULL.  36, 38. 

/10/  BRIEF IN OPPOSITION 17. 

MR. JUSTICE DOUGLAS, DISSENTING. 

RESPONDENT IS A STATE-CHARTERED SAVINGS AND LOAN INSTITUTION, WHOSE
DEPOSITS ARE INSURED BY THE FEDERAL SAVINGS AND LOAN INSURANCE
CORPORATION (FSLIC).  TO OBTAIN THIS COVERAGE, RESPONDENT MUST PAY TWO
PREMIUMS.  UNDER SEC. 404(B) OF THE NATIONAL HOUSING ACT, IT PAYS AN
ANNUAL PREMIUM OF 1/12 OF ONE PERCENT OF THE TOTAL AMOUNT OF ITS
SAVINGS ACCOUNTS AND CREDITOR OBLIGATIONS.  PURSUANT TO SEC. 404(D), IT
MUST ALSO PAY AN ADDITIONAL PREMIUM EQUAL TO TWO PERCENT OF ANY NET
INCREASE IN THE TOTAL AMOUNT OF ITS INSURED ACCOUNTS.  /1/  THE SEC.
404(B) PREMIUM IS CONSIDERED GROSS INCOME OF FSLIC, APPROXIMATELY 95%
OF WHICH IS TRANSFERRED TO ITS PRIMARY RESERVE TO COVER LOSSES.  THESE
PREMIUMS MUST BE PAID BY INSURED INSTITUTIONS UNTIL THE PRIMARY RESERVE
EQUALS TWO PERCENT OF THE TOTAL INSURED SAVINGS ACCOUNTS AND CREDITOR
OBLIGATIONS OF ALL INSURED INSTITUTIONS.  THEREAFTER, INSURED
INSTITUTIONS NEED PAY NO PREMIUMS UNLESS AND UNTIL THE PRIMARY RESERVE
DROPS BELOW TWO PERCENT.  THE SEC. 404(D) PREMIUM IS NOT CONSIDERED
GROSS INCOME OF FSLIC BUT IS TRANSFERRED TO A SECONDARY RESERVE, TO BE
USED TO COVER LOSSES ONLY IF OTHER ACCOUNTS PROVE INSUFFICIENT, A
POSSIBILITY CONSIDERED EXTREMELY REMOTE.  A SEPARATE ACCOUNTING IS KEPT
FOR EACH INSURED INSTITUTION, SHOWING THE SEC. 404(D) PREMIUMS PAID. 
UNDER SEC. 404(G), AT ANY TIME THAT THE AGGREGATE OF THE PRIMARY AND
SECONDARY RESERVES REACHES 2% OF ALL INSURED ACCOUNTS AND CREDITOR
OBLIGATIONS, NO SEC. 404(D) PAYMENTS NEED BE MADE, AND FUNDS FROM THE
SECONDARY RESERVE MAY BE USED TO MAKE SEC. 404(B) PREMIUM PAYMENTS,
UNTIL THE AGGREGATE FALLS BELOW 1 3/4%.  WHEN THE PRIMARY RESERVE
REACHES 2%, FSLIC IS TO PAY EACH INSURED INSTITUTION ITS PRO RATA SHARE
OF THE SECONDARY RESERVE IN CASH.  BY FSLIC'S PROJECTIONS, NO SEC.
404(D) PREMIUM PAYMENTS WILL BE REQUIRED IN THE YEARS 1971 TO 1975 AND
AFTER 1979.  NO SEC. 404(B) PREMIUMS WILL BE REQUIRED AFTER 1995, AS
THE PRIMARY RESERVE WILL REACH 2%.  THE RESPONDENT ARGUES THAT THERE
WILL BE NO PAYMENTS OF PRO RATA SHARES AT THAT TIME, AS THE
CALCULATIONS OF FSLIC SHOW THAT THE SECONDARY FUND WILL BE EXHAUSTED
PRIOR TO 1995.  /2/ 

ON ITS FEDERAL TAX RETURN FOR 1963 RESPONDENT DEDUCTED BOTH ITS SEC.
404(B) AND 404(D) PREMIUM PAYMENTS AS ORDINARY AND NECESSARY BUSINESS
EXPENSES.  THE COMMISSIONER OF INTERNAL REVENUE ALLOWED THE DEDUCTION
OF SEC. 404(B) PREMIUMS, BUT DISALLOWED THE LATTER, CHARACTERIZING
THESE PAYMENTS AS NONDEDUCTIBLE CAPITAL INVESTMENTS IN FSLIC, TO BE
DEDUCTED ONLY WHEN USED TO PAY SEC. 404(B) PREMIUMS OR WHEN USED TO
MEET ACTUAL LOSSES OF FSLIC.  THE TAX COURT AFFIRMED THIS RULING.  THE
COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED THE TAX COURT, FINDING
THE SEC. 404(D) PREMIUMS TO BE A REASONABLE AND NECESSARY BUSINESS
EXPENSE, DEDUCTIBLE IN THE YEAR PAID.  I AGREE WITH THE COURT OF
APPEALS AND DISSENT FROM THE DECISION HERE. 

THERE IS NO CLAIM THAT THE SEC. 404(D) PREMIUMS ARE NOT NECESSARY. 
THE POSITION OF THE UNITED STATES IS THAT THESE PREMIUMS ARE NOT
"ORDINARY," BUT "IN THE NATURE OF CAPITAL EXPENDITURES, WHICH, IF
DEDUCTIBLE AT ALL, MUST BE AMORTIZED OVER THE USEFUL LIFE OF THE
ASSET."  COMMISSIONER V. TELLIER, 383 U.S. 687, 689-690 (1966).  THE
COMMISSIONER RELIES ON THE PRINCIPLE THAT A COST WHICH RESULTS IN THE
CREATION OF AN ASSET HAVING A USEFUL LIFE WHICH EXTENDS SUBSTANTIALLY
BEYOND THE CLOSE OF THE TAXABLE YEAR IS A CAPITAL OUTLAY.  FROM THIS HE
ARGUES THAT THE DETERMINATION OF WHETHER RESPONDENT'S SEC. 404(D)
PREMIUMS ARE CAPITAL EXPENDITURES OR DEDUCTIBLE BUSINESS EXPENSES
DEPENDS ON WHETHER THE PAYMENTS WILL PROVIDE A BENEFIT IN FUTURE
YEARS. 

BECAUSE THE RESPONDENT WILL OBTAIN A BENEFIT IN THE FUTURE FROM
THESE PREMIUMS, IN THE FORM OF LOWER SEC. 404(B) PREMIUMS OR BY A FULL
REFUND OF ITS PRO RATA SHARE ON TERMINATION OR LIQUIDATION, HE ARGUES,
THE SECONDARY RESERVE IS A CAPITAL ASSET.  IT IS NOT USED FOR LOSSES,
AND WILL NEVER BE USED EXCEPT IN THE EVENT OF A NATIONAL CATASTROPHE. 
THESE PREMIUMS ARE NOT RECURRING, AND WILL LIKELY BE PAID ONLY IN 13 OF
THE 34 YEARS FROM 1962 TO 1995.  ACCOUNTING PRINCIPLES, THE
COMMISSIONER CLAIMS, DEMAND THAT THESE PAYMENTS BE DEDUCTED WHEN THEY
ARE USED, EITHER TO PAY SEC. 404(B) PREMIUMS OR TO PAY LOSSES.  "ONLY
IN THIS MANNER WILL THE COSTS OF FSLIC INSURANCE BE MATCHED AGAINST THE
REVENUES GENERATED BECAUSE SUCH INSURANCE IS MAINTAINED." 

THE RULE PROFESSED BY THE UNITED STATES IS, OF COURSE, SOUND.  THE
ERROR IS IN APPLYING IT TO THIS CASE.  RESPONDENT HAS NOT ESTABLISHED
AN ASSET FOR FUTURE BENEFIT.  IT HAS MERELY PAID THE PREMIUMS NECESSARY
TO OBTAIN INSURANCE.  IT IS TRUE THAT PREMIUMS PAID IN 1963 MAY RESULT
IN A REDUCTION IN PREMIUMS IN LATER YEARS.  BUT LABELING THIS THE
CREATION OF AN ASSET PROVES TOO MUCH, FOR IT INVALIDATES THE DEDUCTION
OF SEC. 404(B) PREMIUMS AS WELL. 

THE BENEFIT TO BE OBTAINED FROM THE PAYMENT OF SEC. 404(D) PREMIUMS,
WHETHER THEY BE CAPITAL EXPENDITURES OR DEDUCTIBLE EXPENSES, IS NOT THE
REDUCTION OF FUTURE PREMIUMS BUT INSURANCE COVERAGE.  THE GOVERNMENT
READILY ADMITS THAT THE PRESENT LEVEL OF SEC. 404(B) PREMIUMS IS NOT
NEEDED TO COVER CURRENT FORESEEABLE LOSSES.  INDEED, LOSSES HAVE NEVER
EXCEEDED INVESTMENT INCOME.  THE HIGH PREMIUM RATE IS FOR THE PURPOSE
OF ESTABLISHING A PRIMARY RESERVE, TO COVER CONCEIVABLY SERIOUS LOSSES
IN THE FUTURE.  WHEN THE PRIMARY RESERVE REACHES A LEVEL DEEMED
SUFFICIENT, NO PREMIUM PAYMENTS WILL BE REQUIRED AT ALL.  IF "THE COSTS
OF FSLIC INSURANCE (ARE TO) BE MATCHED AGAINST THE REVENUES GENERATED
BECAUSE SUCH INSURANCE IS MAINTAINED," A MAJOR PORTION OF THE SEC.
404(B) PREMIUMS SHOULD ALSO BE CAPITALIZED, TO BE DEPRECIATED OVER SOME
APPROPRIATE TERM. 

NOR IS IT CONTROLLING THAT THE SECONDARY RESERVE IS A CAPITAL
ACCOUNT INSOFAR AS FSLIC IS CONCERNED.  AS THE COURT OF APPEALS
STATED: 

"WE THINK THE EMPHASIS UPON THE TREATMENT OF THE RECEIPT BY THE
PAYEE, FSLIC, IS MISTAKEN AND THAT IN DETERMINING WHETHER AN EXPENSE IS
AN ORDINARY AND NECESSARY EXPENSE OF DOING BUSINESS, THE FOCUS SHOULD
BE ON THE TAXPAYER AND THE TAXPAYER'S BUSINESS, NOT ON WHAT THE PAYEE
DOES WITH THE MONEY PAID.  THIS IS NOT TO SAY THAT RIGHTS RETAINED BY
THE TAXPAYER ARE TO BE IGNORED."  422 F.2D 90, 92. 

A DECISION THAT SEC. 404(D) PREMIUMS ARE NOT DEDUCTIBLE, WHILE SEC.
404(B) PREMIUMS ARE, MUST REST ON THE ONLY DISTINCTION BETWEEN THE TWO,
THE RIGHTS RETAINED BY RESPONDENT IN THE SECONDARY RESERVE.  THESE ARE
EVIDENCED BY THE KEEPING OF SEPARATE "ACCOUNTS," THE PAYMENT OF
EARNINGS TO THESE ACCOUNTS, AND THE POSSIBILITY OF A RECOVERY OF A PRO
RATA SHARE OF THE RESERVE.  BUT, AS THE COURT OF APPEALS NOTED,
RESPONDENT IS A GOING CONCERN, AND THE POSSIBILITY OF A RETURN OF ITS
SHARE ON LIQUIDATION IS NOT A PROPER CONSIDERATION.  AS TERMINATION OF
INSURANCE WOULD SURELY LEAD TO LIQUIDATION, THIS COULD NOT BE
CONSIDERED EITHER.  THE POSSIBILITY THAT SOME PART OF THE SECONDARY
RESERVE MIGHT BE RETURNED TO RESPONDENT WHEN THE PRIMARY RESERVE
REACHES A SUFFICIENT LEVEL IS, AT BEST, REMOTE.  THIS CONTINGENT
POSSIBILITY OF RECOVERY DOES NOT RENDER AN OTHERWISE DEDUCTIBLE PAYMENT
NONDEDUCTIBLE.  ALLEGHANY CORP. V. COMMISSIONER, 28 T.C. 298, 305;
ELECTRIC TACHOMETER CORP. V. COMMISSIONER, 37 T.C. 158, 161. 

THE RETURNS PAID ON A PRO RATA SHARE OF THE SECONDARY RESERVE ARE
PAID OUT OF EARNINGS, THAT IS, OUT OF FUNDS WHICH WOULD OTHERWISE BE
TRANSFERRED TO THE PRIMARY RESERVE.  THE PAYMENT DOES NOT INCREASE THE
AGGREGATE AMOUNT OF THE RESERVES.  THE RETURNS PAID ARE NOT AVAILABLE
TO THE INSURED INSTITUTION, AND NOT TAXABLE TO IT UNTIL PAID FOR ITS
BENEFIT, ACCORDING TO THE INTERNAL REVENUE SERVICE.  AT THAT POINT, THE
INSURED INSTITUTION WOULD DECLARE THE INCOME AND DEDUCT THE AMOUNT AS
AN EXPENSE.  THEREFORE, ABSENT THE REMOTE POSSIBILITY THAT THE INSURED
INSTITUTION MIGHT RECEIVE A PRO RATA SHARE, IT IS IMMATERIAL WHETHER
RETURNS ARE PAID TO THE SECONDARY RESERVE OR ONLY TO THE PRIMARY
RESERVE.  ALSO, THE REVENUE RULING THAT THE INSURED INSTITUTION DOES
NOT HAVE EVEN CONSTRUCTIVE POSSESSION OF A PRO RATA SHARE OF THE
SECONDARY RESERVE, FOR PURPOSES OF TAXING RETURNS ON THAT FUND, IN
INCONSISTENT WITH THE POSITION THAT THE SAME PRO RATA SHARE IS A
CAPITAL ASSET OF THE INSTITUTION. 

ON THESE FACTS, THE COURT OF APPEALS WAS CORRECT IN DETERMINING THAT
THE SEC. 404(D) PREMIUMS, PAID FOR THE PURPOSE OF OBTAINING INSURANCE
NECESSARY FOR THE SUCCESS OF RESPONDENT'S BUSINESS, WERE DEDUCTIBLE AS
AN ORDINARY BUSINESS EXPENSE. 

/1/  THIS AMOUNT MAY BE REDUCED BY AN AMOUNT EQUAL TO ANY
REQUIREMENT FOR THE PURCHASE OF STOCK IN THE FEDERAL HOME LOAN BANK OF
WHICH THE INSURED IS A MEMBER. 

/2/  THE SOLICITOR GENERAL ARGUES THAT IT IS POSSIBLE THAT SOME
INSURED INSTITUTIONS MIGHT RECEIVE REFUNDS FROM THE SECONDARY RESERVE,
IF THEIR GROWTH FITS A CERTAIN PATTERN.  THIS HOWEVER ONLY RAISES THE
POSSIBILITY OF SUCH A RETURN, WITHOUT SHOWING THAT SUCH A POSSIBILITY
IS MORE THAN REMOTE. 

MATTHEW J. ZINN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WALTERS, THOMAS L. STAPLETON, AND DAVID ENGLISH CARMACK. 

ADAM Y. BENNION ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE A. CALDER MACKAY AND VICTOR L. WALCH. 
..END :















GRAHAM V. RICHARDSON, 403 U.S. 365 


       GRAHAM, COMMISSIONER, DEPARTMENT OF PUBLIC WELFARE OF

           ARIZONA V. RICHARDSON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

 DISTRICT OF ARIZONA

        NO. 609.  ARGUED MARCH 22, 1971-- DECIDED JUNE 14, 1971
/0/ 


STATE STATUTES, LIKE THE ARIZONA AND PENNSYLVANIA STATUTES HERE
INVOLVED, THAT DENY WELFARE BENEFITS TO RESIDENT ALIENS OR TO ALIENS
WHO HAVE NOT RESIDED IN THE UNITED STATES FOR A SPECIFIED NUMBER OF
YEARS ARE VIOLATIVE OF THE EQUAL PROTECTION CLAUSE AND ENCROACH UPON
THE EXCLUSIVE FEDERAL POWER OVER THE ENTRANCE AND RESIDENCE OF ALIENS;
AND THERE IS NO AUTHORIZATION FOR ARIZONA'S 15-YEAR DURATIONAL
RESIDENCY REQUIREMENT IN SEC. 1402(B) OF THE SOCIAL SECURITY ACT.  PP.
370-383. 

313 F.SUPP.  34 AND 321 F.SUPP.  250, AFFIRMED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BLACK, DOUGLAS, BRENNAN, STEWARD, WHITE, AND MARSHALL, JJ.,
JOINED.  HARLAN, J., FILED A STATEMENT JOINING IN THE JUDGMENT AND IN
PARTS III AND IV OF THE COURT'S OPINION, POST, P. 383. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THESE ARE WELFARE CASES.  THEY PROVIDE YET ANOTHER ASPECT OF THE
WIDENING LITIGATION IN THIS AREA.  /1/  THE ISSUE HERE IS WHETHER THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT PREVENTS A STATE
FROM CONDITIONING WELFARE BENEFITS EITHER (A) UPON THE BENEFICIARY'S
POSSESSION OF UNITED STATES CITIZENSHIP, OR (B) IF THE BENEFICIARY IS
AN ALIEN, UPON HIS HAVING RESIDED IN THIS COUNTRY FOR A SPECIFIED
NUMBER OF YEARS.  THE FACTS ARE NOT IN DISPUTE. 

        I 

NO. 609.  THIS CASE, FROM ARIZONA, CONCERNS THE STATE'S
PARTICIPATION IN FEDERAL CATEGORICAL ASSISTANCE PROGRAMS.  THESE
PROGRAMS ORIGINATE WITH THE SOCIAL SECURITY ACT OF 1935, 49 STAT. 620,
AS AMENDED, 42 U.S.C.,C. 7.  THEY ARE SUPPORTED IN PART BY FEDERAL
GRANTS-IN-AID AND ARE ADMINISTERED BY THE STATES UNDER FEDERAL
GUIDELINES.  ARIZONA REV. STAT. ANN., TIT. 46, ART. 2, AS AMENDED,
PROVIDES FOR ASSISTANCE TO PERSONS PERMANENTLY AND TOTALLY DISABLED
(APTD).  SEE 42 U.S.C. 1351-1355.  ARIZONA REV. STAT. ANN. SEC. 46-233
(SUPP. 1970-1971), AS AMENDED IN 1962, READS:

     "A.  NO PERSON SHALL BE ENTITLED TO GENERAL ASSISTANCE WHO
DOES

NOT MEET AND MAINTAIN THE FOLLOWING REQUIREMENTS: 

     "1.  IS A CITIZEN OF THE UNITED STATES, OR HAS RESIDED IN THE

  UNITED STATES A TOTAL OF FIFTEEN YEARS . . . " 

A LIKE ELIGIBILITY PROVISION CONDITIONED UPON CITIZENSHIP OR
DURATIONAL RESIDENCE APPEARS IN SEC. 46-252(2), PROVIDING OLD-AGE
ASSISTANCE, AND IN SEC. 46-272(4), PROVIDING ASSISTANCE TO THE NEEDY
BLIND.  SEE 42 U.S.C. 1201-1206, 1381-1385. 

APPELLEE CARMEN RICHARDSON, AT THE INSTITUTION OF THIS SUIT IN JULY
1969, WAS 64 YEARS OF AGE.  SHE IS A LAWFULLY ADMITTED RESIDENT ALIEN. 
SHE EMIGRATED FROM MEXICO IN 1956 AND SINCE THEN HAS RESIDED
CONTINUOUSLY IN ARIZONA.  SHE BECAME PERMANENTLY AND TOTALLY DISABLED. 
SHE ALSO MET ALL OTHER REQUIREMENTS FOR ELIGIBILITY FOR APTD BENEFITS
EXCEPT THE 15-YEAR RESIDENCY SPECIFIED FOR ALIENS BY SEC. 46
233(A)(1).  SHE APPLIED FOR BENEFITS BUT WAS DENIED RELIEF SOLELY
BECAUSE OF THE RESIDENCY PROVISIONS. 

MRS. RICHARDSON INSTITUTED HER CLASS ACTION /2/  IN THE DISTRICT OF
ARIZONA AGAINST THE COMMISSIONER OF THE STATE'S DEPARTMENT OF PUBLIC
WELFARE SEEKING DECLARATORY RELIEF, AN INJUNCTION AGAINST THE
ENFORCEMENT OF SECS. 46-233(A)(1), 46-252(2), AND 46-272(4), AND THE
AWARD OF AMOUNTS ALLEGEDLY DUE.  SHE CLAIMED THAT ARIZONA'S ALIEN
RESIDENCY REQUIREMENTS VIOLATE THE EQUAL PROTECTION CLAUSE AND THE
CONSTITUTIONAL RIGHT TO TRAVEL; THAT THEY CONFLICT WITH THE SOCIAL
SECURITY ACT AND ARE THUS OVERBORNE BY THE SUPREMACY CLAUSE; AND THAT
THE REGULATION OF ALIENS HAS BEEN PRE-EMPTED BY CONGRESS. 

THE THREE-JUDGE COURT UPHELD MRS. RICHARDSON'S MOTION FOR SUMMARY
JUDGMENT ON EQUAL PROTECTION GROUNDS.  RICHARDSON V. GRAHAM, 313
F.SUPP.  34 (ARIZ. 1970).  IT DID SO IN RELIANCE OF THIS COURT'S
OPINIONS IN TAKAHASHI V. FISH & GAME COMM'N, 334 U.S. 410 (1948), AND
SHAPIRO V. THOMPSON, 394 U.S. 618 (1969).  THE COMMISSIONER APPEALED. 
THE JUDGMENT WAS STAYED AS TO ALL PARTIES PLAINTIFF OTHER THAN MRS.
RICHARDSON.  PROBABLE JURISDICTION WAS NOTED.  400 U.S. 956 (1970). 

NO. 727.  THIS CASE, FROM PENNSYLVANIA, CONCERNS THAT PORTION OF A
GENERAL ASSISTANCE PROGRAM THAT IS NOT FEDERALLY SUPPORTED.  THE
RELEVANT STATUTE IS SEC. 432(2) OF THE PENNSYLVANIA PUBLIC WELFARE
CODE, PA.STAT.ANN.,TIT.  62, SEC. 432(2)(1968), /3/  ORIGINALLY ENACTED
IN 1939.  IT PROVIDES THAT THOSE ELIGIBLE FOR ASSISTANCE SHALL BE (1)
NEEDY PERSONS WHO QUALIFY UNDER THE FEDERALLY SUPPORTED CATEGORICAL
ASSISTANCE PROGRAMS AND (2) THOSE OTHER NEEDY PERSONS WHO ARE CITIZENS
OF THE UNITED STATES.  ASSISTANCE TO THE LATTER GROUP IS FUNDED WHOLLY
BY THE COMMONWEALTH. 

APPELLEE ELSIE MARY JANE LEGER IS A LAWFULLY ADMITTED RESIDENT
ALIEN.  SHE WAS BORN IN SCOTLAND IN 1937.  SHE CAME TO THIS COUNTRY IN
1965 AT THE AGE OF 28 UNDER CONTRACT FOR DOMESTIC SERVICE WITH A FAMILY
IN HAVERTOWN.  SHE HAS RESIDED CONTINUOUSLY IN PENNSYLVANIA SINCE THEN
AND HAS BEEN A TAXPAYING RESIDENT OF THE COMMONWEALTH.  IN 1967 SHE
LEFT HER DOMESTIC EMPLOYMENT TO ACCEPT MORE REMUNERATIVE WORK IN
PHILADELPHIA.  SHE ENTERED INTO A COMMON-LAW MARRIAGE WITH A UNITED
STATES CITIZEN.  IN 1969 ILLNESS FORCED BOTH MRS. LEGER AND HER HUSBAND
TO GIVE UP THEIR EMPLOYMENT.  THEY APPLIED FOR PUBLIC ASSISTANCE.  EACH
WAS INELIGIBLE UNDER THE FEDERAL PROGRAMS.  MR. LEGER, HOWEVER,
QUALIFIED FOR AID UNDER THE STATE PROGRAM.  AID TO MRS. LEGER WAS
DENIED BECAUSE OF HER ALIENAGE.  THE MONTHLY GRANT TO MR. LEGER WAS
LESS THAN THE AMOUNT DETERMINED BY BOTH FEDERAL AND PENNSYLVANIA
AUTHORITIES AS NECESSARY FOR A MINIMUM STANDARD OF LIVING IN
PHILADELPHIA FOR A FAMILY OF TWO. 

MRS. LEGER INSTITUTED HER CLASS ACTION /4/  IN THE EASTERN DISTRICT
OF PENNSYLVANIA AGAINST THE EXECUTIVE DIRECTOR OF THE PHILADELPHIA
COUNTY BOARD OF ASSISTANCE AND THE SECRETARY OF THE COMMONWEALTH'S
DEPARTMENT OF PUBLIC WELFARE.  SHE SOUGHT DECLARATORY RELIEF, AN
INJUNCTION AGAINST THE ENFORCEMENT OF THE RESTRICTION OF SEC. 432(2),
AND THE ORDERING OF BACK PAYMENTS WRONGFULLY WITHHELD.  SHE OBTAINED A
TEMPORARY RESTRAINING ORDER PREVENTING THE DEFENDANTS FROM CONTINUING
TO DENY HER ASSISTANCE.  SHE THEN BEGAN TO RECEIVE, AND STILL RECEIVES,
WITH HER HUSBAND, A PUBLIC ASSISTANCE GRANT. 

APPELLEE BERYL JERVIS WAS ADDED AS A PARTY PLAINTIFF TO THE LEGER
ACTION.  SHE WAS BORN IN PANAMA IN 1912 AND IS A CITIZEN OF THAT
COUNTRY.  IN MARCH 1968, AT THE AGE OF 55, SHE CAME TO THE UNITED
STATES TO UNDERTAKE DOMESTIC WORK UNDER CONTRACT IN PHILADELPHIA.  SHE
HAS RESIDED CONTINUOUSLY IN PENNSYLVANIA SINCE THEN AND HAS BEEN A
TAXPAYING RESIDENT OF THE COMMONWEALTH.  AFTER WORKING AS A DOMESTIC
FOR APPROXIMATELY ONE YEAR, SHE OBTAINED OTHER, MORE REMUNERATIVE, WORK
IN THE CITY.  IN FEBRUARY 1970 ILLNESS FORCED HER TO GIVE UP HER
EMPLOYMENT.  SHE APPLIED FOR AID.  HOWEVER, SHE WAS INELIGIBLE FOR
BENEFITS UNDER THE FEDERALLY ASSISTED PROGRAMS AND SHE WAS DENIED
GENERAL ASSISTANCE SOLELY BECAUSE OF HER ALIENAGE.  HER MOTION FOR
IMMEDIATE RELIEF THROUGH A TEMPORARY RESTRAINING ORDER WAS DENIED. 

IT WAS STIPULATED THAT "THE DENIAL OF GENERAL ASSISTANCE TO ALIENS
OTHERWISE ELIGIBLE FOR SUCH ASSISTANCE CAUSES UNDUE HARDSHIP TO THEM BY
DEPRIVING THEM OF THE MEANS TO SECURE THE NECESSITIES OF LIFE,
INCLUDING FOOD, CLOTHING AND SHELTER," AND THAT "THE CITIZENSHIP BAR TO
THE RECEIPT OF GENERAL ASSISTANCE IN PENNSYLVANIA DISCOURAGES CONTINUED
RESIDENCE IN PENNSYLVANIA OF INDIGENT RESIDENT ALIENS AND CAUSES SUCH
NEEDY PERSONS TO REMOVE TO OTHER STATES WHICH WILL MEET THEIR NEEDS." 

THE THREE-JUDGE COURT, ONE JUDGE DISSENTING, RULED THAT SEC. 432(2)
WAS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE AND ENJOINED ITS FURTHER
ENFORCEMENT.  LEGER V. SAILER, 321 F.SUPP.  250 (ED PA. 1970).  THE
DEFENDANTS APPEALED.  PROBABLE JURISDICTION WAS NOTED.  400 U.S. 956. 

        II 

THE APPELLANTS ARGUE INITIALLY THAT THE STATES, CONSISTENT WITH THE
EQUAL PROTECTION CLAUSE, MAY FAVOR UNITED STATES CITIZENS OVER ALIENS
IN THE DISTRIBUTION OF WELFARE BENEFITS.  IT IS SAID THAT THIS
DISTINCTION INVOLVES NO "INVIDIOUS DISCRIMINATION" SUCH AS WAS
CONDEMNED IN KING V. SMITH, 392 U.S. 309 (1968), FOR THE STATE IS NOT
DISCRIMINATING WITH RESPECT TO RACE OR NATIONALITY. 

THE FOURTEENTH AMENDMENT PROVIDES, "(N) OR 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."  IT HAS LONG BEEN SETTLED, AND IT IS NOT DISPUTED HERE, THAT THE
TERM "PERSON" IN THIS CONTEXT ENCOMPASSES LAWFULLY ADMITTED RESIDENT
ALIENS AS WELL AS CITIZENS OF THE UNITED STATES AND ENTITLES BOTH
CITIZENS AND ALIENS TO THE EQUAL PROTECTION OF THE LAWS OF THE STATE IN
WHICH THEY RESIDE.  YICK WO V. HOPKINS, 118 U.S. 356, 369 (1886); TRAUX
V. RAICH, 239 U.S. 33, 39 (1915); TAKAHASHI V. FISH & GAME COMM'N, 334
U.S.,AT 420.  NOR IS IT DISPUTED THAT THE ARIZONA AND PENNSYLVANIA
STATUTES IN QUESTION CREATE TWO CLASSES OF NEEDY PERSONS,
INDISTINGUISHABLE EXCEPT WITH RESPECT TO WHETHER THEY ARE OR ARE NOT
CITIZENS OF THIS COUNTRY.  OTHERWISE QUALIFIED UNITED STATES CITIZENS
LIVING IN ARIZONA ARE ENTITLED TO FEDERALLY FUNDED CATEGORICAL
ASSISTANCE BENEFITS WITHOUT REGARD TO LENGTH OF NATIONAL RESIDENCY, BUT
ALIENS MUST HAVE LIVED IN THIS COUNTRY FOR 15 YEARS IN ORDER TO QUALIFY
FOR AID.  UNITED STATES CITIZENS LIVING IN PENNSYLVANIA, UNABLE TO MEET
THE REQUIREMENTS FOR FEDERALLY FUNDED BENEFITS, MAY BE ELIGIBLE FOR
STATE-SUPPORTED GENERAL ASSISTANCE, BUT RESIDENT ALIENS AS A CLASS ARE
PRECLUDED FROM THAT ASSISTANCE. 

UNDER TRADITIONAL EQUAL PROTECTION PRINCIPLES, A STATE RETAINS BROAD
DISCRETION TO CLASSIFY AS LONG AS ITS CLASSIFICATION HAS A REASONABLE
BASIS.  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78 (1911);
WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489 (1955); MOREY V. DOUD,
354 U.S. 457, 465 (1957); MCGOWAN V. MARYLAND, 366 U.S. 420, 425-427
(1961).  THIS IS SO IN "THE AREA OF ECONOMICS AND SOCIAL WELFARE." 
DANDRIDGE V. WILLIAMS, 397 U.S. 471, 485 (1970).  BUT THE COURT'S
DECISIONS HAVE ESTABLISHED THAT CLASSIFICATIONS BASED ON ALIENAGE, LIKE
THOSE BASED ON NATIONALITY /5/  OR RACE, /6/  ARE INHERENTLY SUSPECT
AND SUBJECT TO CLOSE JUDICIAL SCRUTINY.  ALIENS AS A CLASS ARE A PRIME
EXAMPLE OF A "DISCRETE AND INSULAR"  MINORITY (SEE UNITED STATES V.
CAROLENE PRODUCTS CO., 304 U.S. 144, 152-153, N. 4 (1938) FOR WHOM SUCH
HEIGHTENED JUDICIAL SOLICITUDE IS APPROPRIATED.  ACCORDINGLY, IT WAS
SAID IN TAKAHASHI, 334 U.S.,AT 420, THAT "THE POWER OF A STATE TO APPLY
ITS LAWS EXCLUSIVELY TO ITS ALIEN INHABITANTS AS A CLASS IS CONFINED
WITHIN NARROW LIMITS." 

ARIZONA AND PENNSYLVANIA SEEK TO JUSTIFY THEIR RESTRICTIONS ON THE
ELIGIBILITY OF ALIENS FOR PUBLIC ASSISTANCE SOLELY ON THE BASIS OF A
STATE'S "SPECIAL PUBLIC INTEREST" IN FAVORING ITS OWN CITIZENS OVER
ALIENS IN THE DISTRIBUTION OF LIMITED RESOURCES SUCH AS WELFARE
BENEFITS.  IT IS TRUE THAT THIS COURT ON OCCASION HAS UPHELD STATE
STATUTES THAT TREAT CITIZENS AND NONCITIZENS DIFFERENTLY, THE GROUND
FOR DISTINCTION HAVING BEEN THAT SUCH LAWS WERE NECESSARY TO PROTECT
SPECIAL INTERESTS OF THE STATE OR ITS CITIZENS.  THUS, IN TRUAX V.
RAICH, 239 U.S. 33 (1915), THE COURT, IN STRIKING DOWN AN ARIZONA
STATUTE RESTRICTING THE EMPLOYMENT OF ALIENS, EMPHASIZED THAT "(THE
DISCRIMNATION DEFINED BY THE ACT DOES NOT PERTAIN TO THE REGULATION OR
DISTRIBUTION OF THE PUBLIC DOMAIN, OR OF THE COMMON PROPERTY OR
RESOURCES OF THE PEOPLE OF THE STATE, THE ENJOYMENT OF WHICH MAY BE
LIMITED TO ITS CITIZENS AS AGAINST BOTH ALIENS AND THE CITIZENS OF
OTHER STATES."  239 U.S.,AT 39-40.  AND IN CRANE V. NEW YORK, 239 U.S.
195 (1915), THE COURT AFFIRMED THE JUDGMENT IN PEOPLE V. CRANE, 214
N.Y. 154, 108 N.E. 427 (1915), UPHOLDING A NEW YORK STATUTE PROHIBITING
THE EMPLOYMENT OF ALIENS ON PUBLIC WORKS PROJECTS.  THE NEW YORK
COURT'S OPINION CONTAINED MR. JUSTICE CARDOZO'S WELL-KNOWN
OBSERVATION: 

"TO DISQUALIFY ALIENS IS DISCRIMINATION INDEED, BUT NOT ARBITRARY
DISCRIMINATION, FOR THE PRINCIPLE OF EXCLUSION IS THE RESTRICTION OF
THE RESOURCES OF THE STATE TO THE ADVANCEMENT AND PROFIT OF THE MEMBERS
OF THE STATE.  UNGENEROUS AND UNWISE SUCH DISCRIMINATION MAY BE.  IT IS
NOT FOR THAT REASON UNLAWFUL . . . THE STATE IN DETERMINING WHAT USE
SHALL BE MADE OF ITS OWN MONEYS, MAY LEGITIMATELY CONSULT THE WELFARE
OF ITS OWN CITIZENS RATHER THAN THAT OF ALIENS.  WHATEVER IS A
PRIVILEGE RATHER THAN A RIGHT, MAY BE MADE DEPENDENT UPON CITIZENSHIP. 
IN ITS WAR AGAINST POVERTY, THE STATE IS NOT REQUIRED TO DEDICATE ITS
OWN RESOURCES TO CITIZENS AND ALIENS ALIKE."  214 N.Y.,AT 161, 164, 108
N.E.,AT 429, 430. 

SEE HEIM V. MCCALL, 239 U.S. 175 (1915); OHIO EX REL. CLARKE V.
DECKEBACH, 274 U.S. 392 (1927).  ON THE SAME THEORY, THE COURT HAS
UPHELD STATUTES THAT, IN THE ABSENCE OF OVERRIDING TREATIES, LIMIT THE
RIGHT OF NONCITIZENS TO ENGAGE IN EXPLOITATION OF A STATE'S NATURAL
RESOURCES, /7/  RESTRICT THE DEVOLUTION OF REAL PROPERTY TO ALIENS, /8/
OR DENY TO ALIENS THE RIGHT TO ACQUIRE AND OWN LAND.  /9/ 

TAKAHASHI V. FISH & GAME COMM'N, 334 U.S. 410 (1948), HOWEVER, CAST
DOUBT ON THE CONTINUING VALIDITY OF THE SPECIAL PUBLIC-INTEREST
DOCTRINE IN ALL CONTEXTS.  THERE THE COURT HELD THAT CALIFORNIA'S
PURPORTED OWNERSHIP OF FISH IN THE OCEAN OFF ITS SHORES WAS NOT SUCH A
SPECIAL PUBLIC INTEREST AS WOULD JUSTIFY PROHIBITING ALIENS FROM MAKING
A LIVING BY FISHING IN THOSE WATERS WHILE PERMITTING ALL OTHERS TO DO
SO.  IT WAS SAID: 

"THE FOURTEENTH AMENDMENT AND THE LAWS ADOPTED UNDER ITS AUTHORITY
THUS EMBODY A GENERAL POLICY THAT ALL PERSONS LAWFULLY IN THIS COUNTRY
SHALL ABIDE 'IN ANY STATE' ON AN EQUALITY OF LEGAL PRIVILEGES WITH ALL
CITIZENS UNDER NON-DISCRIMINATORY LAWS."  334 U.S.,AT 420. 

WHATEVER MAY BE THE CONTEMPORARY VITALITY OF THE SPECIAL PUBLIC
INTEREST DOCTRINE IN OTHER CONTEXTS AFTER TAKAHASHI, WE CONCLUDE THAT A
STATE'S DESIRE TO PRESERVE LIMITED WELFARE BENEFITS FOR ITS OWN
CITIZENS IS INADEQUATE TO JUSTIFY PENNSYLVANIA'S MAKING NONCITIZENS
INELIGIBLE FOR PUBLIC ASSISTANCE, AND ARIZONA'S RESTRICTING BENEFITS TO
CITIZENS AND LONGTIME RESIDENT ALIENS.  FIRST, THE SPECIAL PUBLIC
INTEREST DOCTRINE WAS HEAVILY GROUNDED ON THE NOTION THAT "(WHATEVER IS
A PRIVILEGE, RATHER THAN A RIGHT, MAY BE MADE DEPENDENT UPON
CITIZENSHIP."  PEOPLE V. CRANE, 214 N.Y.,AT 164, 108 N.E.,AT 430.  BUT
THIS COURT NOW HAS REJECTED THE CONCEPT THAT CONSTITUTIONAL RIGHTS TURN
UPON WHETHER A GOVERNMENTAL BENEFIT IS CHARACTERIZED AS A "RIGHT" OR AS
A "PRIVILEGE."  SHERBERT V. VERNER, 374 U.S. 398, 404 (1963); SHAPIRO
V. THOMPSON, 394 U.S.,AT 627 N. 6; GOLDBERG V. KELLY, 397 U.S. 254, 262
(1970); BELL V. BURSON, 402 U.S. 535, 539 (1971).  SECOND, AS THE COURT
RECOGNIZED IN SHAPIRO:     "(A) STATE HAS A VALID INTEREST IN
PRESERVING THE FISCAL INTEGRITY OF ITS PROGRAMS.  IT MAY LEGITIMATELY
ATTEMPT TO LIMIT ITS EXPENDITURES, WHETHER FOR PUBLIC ASSISTANCE,
PUBLIC EDUCATION, OR ANY OTHER PROGRAM.  BUT A STATE MAY NOT ACCOMPLISH
SUCH A PURPOSE BY INVIDIOUS DISTINCTIONS BETWEEN CLASSES OF ITS
CITIZENS.  . . . THE SAVING OF WELFARE COSTS CANNOT JUSTIFY AN
OTHERWISE INVIDIOUS CLASSIFICATION."  394 U.S.,AT 633. 

SINCE AN ALIEN AS WELL AS A CITIZEN IS A "PERSON" FOR EQUAL
PROTECTION PURPOSES, A CONCERN FOR FISCAL INTEGRITY IS NO MORE
COMPELLING A JUSTIFICATION FOR THE QUESTIONED CLASSIFICATION IN THESE
CASES THAN IT WAS IN SHAPIRO. 

APPELLANTS, HOWEVER, WOULD NARROW THE APPLICATION OF SHAPIRO TO
CITIZENS BY ARGUING THAT THE RIGHT TO TRAVEL, RELIED UPON IN THAT
DECISION, EXTENDS ONLY TO CITIZENS AND NOT TO ALIENS.  WHILE MANY OF
THE COURT'S OPINIONS DO SPEAK IN TERMS OF THE RIGHT OF "CITIZENS" TO
TRAVEL, /10/  THE SOURCE OF THE CONSTITUTIONAL RIGHT TO TRAVEL HAS
NEVER BEEN ASCRIBED TO ANY PARTICULAR CONSTITUTIONAL PROVISION.  SEE
SHAPIRO V. THOMPSON, 394 U.S.,AT 630 N. 8; UNITED STATES V. GUEST, 383
U.S. 745, 757-758 (1966).  THE COURT HAS NEVER DECIDED WHETHER THE
RIGHT APPLIES SPECIFICALLY TO ALIENS, AND IT IS UNNECESSARY TO REACH
THAT QUESTION HERE.  IT IS ENOUGH TO SAY THAT THE CLASSIFICATION
INVOLVED IN SHAPIRO WAS SUBJECTED TO STRICT SCRUTINY UNDER THE
COMPELLING STATE INTEREST TEST, NOT BECAUSE IT WAS BASED ON ANY SUSPECT
CRITERION SUCH AS RACE, NATIONALITY, OR ALIENAGE, BUT BECAUSE IT
IMPINGED UPON THE FUNDAMENTAL RIGHT OF INTERSTATE MOVEMENT.  AS WAS
SAID THERE, "THE WAITING-PERIOD PROVISION DENIES WELFARE BENEFITS TO
OTHERWISE ELIGIBLE APPLICANTS SOLELY BECAUSE THEY HAVE RECENTLY MOVED
INTO THE JURISDICTION.  BUT IN MOVING FROM STATE TO STATE OR TO THE
DISTRICT OF COLUMBIA APPELLEES WERE EXERCISING A CONSTITUTIONAL RIGHT,
AND ANY CLASSIFICATION WHICH SERVES TO PENALIZE THE EXERCISE OF THAT
RIGHT, UNLESS SHOWN TO BE NECESSARY TO PROMOTE A COMPELLING
GOVERNMENTAL INTEREST, IS UNCONSTITUTIONAL."  394 U.S.,AT 634.  THE
CLASSIFICATIONS INVOLVED IN THE INSTANT CASES, ON THE OTHER HAND, ARE
INHERENTLY SUSPECT AND ARE THEREFORE SUBJECT TO STRICT JUDICIAL
SCRUTINY WHETHER OR NOT A FUNDAMENTAL RIGHT IS IMPAIRED.  APPELLANTS'
ATTEMPTED RELIANCE ON DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970), IS
ALSO MISPLACED, SINCE THE CLASSIFICATION INVOLVED IN THAT CASE (FAMILY
SIZE) NEITHER IMPINGED UPON A FUNDAMENTAL CONSTITUTIONAL RIGHT NOR
EMPLOYED AN INHERENTLY SUSPECT CRITERION. 

WE AGREE WITH THE THREE-JUDGE COURT IN THE PENNSYLVANIA CASE THAT THE
"JUSTIFICATION OF LIMITING EXPENSES IS PARTICULARLY INAPPROPRIATE AND
UNREASONABLE WHEN THE DISCRIMINATED CLASS CONSISTS OF ALIENS.  ALIENS
LIKE CITIZENS PAY TAXES AND MAY BE CALLED INTO THE ARMED FORCES. 
UNLIKE THE SHORT-TERM RESIDENTS IN SHAPIRO, ALIENS MAY LIVE WITHIN A
STATE FOR MANY YEARS, WORK IN THE STATE AND CONTRIBUTE TO THE ECONOMIC
GROWTH OF THE STATE."  321 F.SUPP.,AT 253.  SEE ALSO PURDY &
FITZPATRICK V. CALIFORNIA, 71 CAL.2D 566, 581-582, 456 P.2D 645, 656
(1969).  THERE CAN BE NO "SPECIAL PUBLIC INTEREST" IN TAX REVENUES TO
WHICH ALIENS HAVE CONTRIBUTED ON AN EQUAL BASIS WITH THE RESIDENTS OF
THE STATE. 

ACCORDINGLY, WE HOLD THAT A STATE STATUTE THAT DENIES WELFARE
BENEFITS TO RESIDENT ALIENS AND ONE THAT DENIES THEM TO ALIENS WHO HAVE
NOT RESIDED IN THE UNITED STATES FOR A SPECIFIED NUMBER OF YEARS
VIOLATE THE EQUAL PROTECTION CLAUSE. 

    III 

AN ADDITIONAL REASON WHY THE STATE STATUTES AT ISSUE IN THESE CASES
DO NOT WITHSTAND CONSTITUTIONAL SCRUTINY EMERGES FROM THE AREA OF
FEDERAL-STATE RELATIONS.  THE NATIONAL GOVERNMENT HAS "BROAD
CONSTITUTIONAL POWERS IN DETERMINING WHAT ALIENS SHALL BE ADMITTED TO
THE UNITED STATES, THE PERIOD THEY MAY REMAIN, REGULATION OF THEIR
CONDUCT BEFORE NATURALIZATION, AND THE TERMS AND CONDITIONS OF THEIR
NATURALIZATION."  TAKAHASHI V. FISH & GAME COMM'N, 334 U.S.,AT 419;
HINES V. DAVIDOWITZ, 312 U.S. 52, 66 (1941); SEE ALSO CHINESE EXCLUSION
CASE, 130 U.S. 581 (1889); UNITED STATES EX REL. TURNER V. WILLIAMS,
194 U.S. 279 (1904); FONG YUE TING V. UNITED STATES, 149 U.S. 698
(1893); HARISIADES V. SHAUGHNESSY, 342 U.S. 580 (1952).  PURSUANT TO
THAT POWER, CONGRESS HAS PROVIDED, AS PART OF A COMPREHENSIVE PLAN FOR
THE REGULATION OF IMMIGRATION AND NATURALIZATION, THAT "(ALIENS WHO ARE
PAUPERS, PROFESSIONAL BEGGARS, OR VAGRANTS" OR ALIENS WHO "ARE LIKELY
AT ANY TIME TO BECOME PUBLIC CHARGES" SHALL BE EXCLUDED FROM ADMISSION
INTO THE UNITED STATES, 8 U.S.C. 1182(A)(8) AND 1182(A)(15), AND THAT
ANY ALIEN LAWFULLY ADMITTED SHALL BE DEPORTED WHO "HAS WITHIN FIVE
YEARS AFTER ENTRY BECOME A PUBLIC CHARGE FROM CAUSES NOT AFFIRMATIVELY
SHOWN TO HAVE ARISEN AFTER ENTRY . . . " 8 U.S.C. 1251(A)(8). 
ADMISSION OF ALIENS LIKELY TO BECOME PUBLIC CHARGES MAY BE CONDITIONED
UPON THE POSTING OF A BOND OR CASH DEPOSIT.  8 U.S.C. 1183.  BUT
CONGRESS HAS NOT SEEN FIT TO IMPOSE ANY BURDEN OR RESTRICTION ON ALIENS
WHO BECOME INDIGENT AFTER THEIR ENTRY INTO THE UNITED STATES.  RATHER,
IT HAS BROADLY DECLARED:  "ALL PERSONS WITHIN THE JURISDICTION OF THE
UNITED STATES SHALL HAVE THE SAME RIGHT IN EVERY STATE AND TERRITORY .
. . TO THE FULL AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE
SECURITY OF PERSONS AND PROPERTY AS IS ENJOYED BY WHITE CITIZENS . . .
" 42 U.S.C. 1981.  THE PROTECTION OF THIS STATUTE HAS BEEN HELD TO
EXTEND TO ALIENS AS WELL AS TO CITIZENS.  TAKAHASHI, 334 U.S.,AT 419 N.
7.  MOREOVER, THIS COURT HAS MADE IT CLEAR THAT, WHATEVER MAY BE THE
SCOPE OF THE CONSTITUTIONAL RIGHT OF INTERSTATE TRAVEL, ALIENS LAWFULLY
WITHIN THIS COUNTRY HAVE A RIGHT TO ENTER AND ABIDE IN ANY STATE IN THE
UNION "ON AN EQUALITY OF LEGAL PRIVILEGES WITH ALL CITIZENS UNDER NON
DISCRIMINATORY LAWS."  TAKAHASHI, 334 U.S.,AT 420. 

STATE LAWS THAT RESTRICT THE ELIGIBILITY OF ALIENS FOR WELFARE
BENEFITS MERELY BECAUSE OF THEIR ALIENAGE CONFLICT WITH THESE
OVERRIDING NATIONAL POLICIES IN AN AREA CONSTITUTIONALLY ENTRUSTED TO
THE FEDERAL GOVERNMENT.  IN HINES V. DAVIDOWITZ, 312 U.S.,AT 66-67,
WHERE THIS COURT STRUCK DOWN A PENNSYLVANIA ALIEN REGISTRATION STATUTE
(ENACTED IN 1939, AS WAS THE STATUTE UNDER CHALLENGE IN NO. 727) ON
GROUNDS OF FEDERAL PRE-EMPTION, IT WAS OBSERVED THAT "WHERE THE FEDERAL
GOVERNMENT, IN THE EXERCISE OF ITS SUPERIOR AUTHORITY IN THIS FIELD,
HAS ENACTED A COMPLETE SCHEME OF REGULATION . . . STATES CANNOT,
INCONSISTENTLY WITH THE PURPOSE OF CONGRESS, CONFLICT OR INTERFERE
WITH, CURTAIL OR COMPLEMENT, THE FEDERAL LAW, OR ENFORCE ADDITIONAL OR
AUXILIARY REGULATIONS."  AND IN TAKAHASHI IT WAS SAID THAT THE STATES 

"CAN NEITHER ADD TO NOR TAKE FROM THE CONDITIONS LAWFULLY IMPOSED BY
CONGRESS UPON ADMISSION, NATURALIZATION AND RESIDENCE OF ALIENS IN THE
UNITED STATES OR THE SEVERAL STATES.  STATE LAWS WHICH IMPOSE
DISCRIMINATORY BURDENS UPON THE ENTRANCE OR RESIDENCE OF ALIENS
LAWFULLY WITHIN THE UNITED STATES CONFLICT WITH THIS CONSTITUTIONALLY
DERIVED FEDERAL POWER TO REGULATE IMMIGRATION, AND HAVE ACCORDINGLY
BEEN HELD INVALID."  334 U.S.,AT 419. 

CONGRESS HAS BROADLY DECLARED AS FEDERAL POLICY THAT LAWFULLY
ADMITTED RESIDENT ALIENS WHO BECOME PUBLIC CHARGES FOR CAUSES ARISING
AFTER THEIR ENTRY ARE NOT SUBJECT TO DEPORTATION, AND THAT AS LONG AS
THEY ARE HERE THEY ARE ENTITLED TO THE FULL AND EQUAL BENEFIT OF ALL
STATE LAWS FOR THE SECURITY OF PERSONS AND PROPERTY.  THE STATE
STATUTES AT ISSUE IN THE INSTANT CASES IMPOSE AUXILIARY BURDENS UPON
THE ENTRANCE OR RESIDENCE OF ALIENS WHO SUFFER THE DISTRESS, AFTER
ENTRY, OF ECONOMIC DEPENDENCY ON PUBLIC ASSISTANCE.  ALIEN RESIDENCY
REQUIREMENTS FOR WELFARE BENEFITS NECESSARILY OPERATE, AS DID THE
RESIDENCY REQUIREMENTS IN SHAPIRO, TO DISCOURAGE ENTRY INTO OR
CONTINUED RESIDENCY IN THE STATE.  INDEED, IN NO. 727 THE PARTIES
STIPULATED THAT THIS WAS SO. 

IN TRUAX THE COURT CONSIDERED THE "REASONABLENESS" OF A STATE
RESTRICTION ON THE EMPLOYMENT OF ALIENS IN TERMS OF ITS EFFECT ON THE
RIGHT OF A LAWFULLY ADMITTED ALIEN TO LIVE WHERE HE CHOOSES: 

"IT MUST ALSO BE SAID THAT REASONABLE CLASSIFICATION IMPLIES ACTION
CONSISTENT WITH THE LEGITIMATE INTERESTS OF THE STATE, AND IT WILL NOT
BE DISPUTED THAT THESE CANNOT BE SO BROADLY CONCEIVED AS TO BRING THEM
INTO HOSTILITY TO EXCLUSIVE FEDERAL POWER.  THE AUTHORITY TO CONTROL
IMMIGRATION-- TO ADMIT OR EXCLUDE ALIENS-- IS VESTED SOLELY IN THE
FEDERAL GOVERNMENT.  . . . THE ASSERTION OF AN AUTHORITY TO DENY TO
ALIENS THE OPPORTUNITY OF EARNING A LIVELIHOOD WHEN LAWFULLY ADMITTED
TO THE STATE WOULD BE TANTAMOUNT TO THE ASSERTION OF THE RIGHT TO DENY
THEM ENTRANCE AND ABODE, FOR IN ORDINARY CASES THEY CANNOT LIVE WHERE
THEY CANNOT WORK.  AND, IF SUCH A POLICY WERE PERMISSIBLE, THE
PRACTICAL RESULT WOULD BE THAT THOSE LAWFULLY ADMITTED TO THE COUNTRY
UNDER THE AUTHORITY OF THE ACTS OF CONGRESS, INSTEAD OF ENJOYING IN A
SUBSTANTIAL SENSE AND IN THEIR FULL SCOPE THE PRIVILEGES CONFERRED BY
THE ADMISSION, WOULD BE SEGREGATED IN SUCH OF THE STATES AS CHOSE TO
OFFER HOSPITALITY."  239 U.S.,AT 42. 

THE SAME IS TRUE HERE, FOR IN THE ORDINARY CASE AN ALIEN, BECOMING
INDIGENT AND UNABLE TO WORK, WILL BE UNABLE TO LIVE WHERE, BECAUSE OF
DISCRIMINATORY DENIAL OF PUBLIC ASSISTANCE, HE CANNOT "SECURE THE
NECESSITIES OF LIFE, INCLUDING FOOD, CLOTHING AND SHELTER."  STATE
ALIEN RESIDENCY REQUIREMENTS THAT EITHER DENY WELFARE BENEFITS TO
NONCITIZENS OR CONDITION THEM ON LONGTIME RESIDENCY, EQUATE WITH THE
ASSERTION OF A RIGHT, INCONSISTENT WITH FEDERAL POLICY, TO DENY
ENTRANCE AND ABODE.  SINCE SUCH LAWS ENCROACH UPON EXCLUSIVE FEDERAL
POWER, THEY ARE CONSTITUTIONALLY IMPERMISSIBLE. 

        IV 

ARIZONA SUGGESTS, FINALLY, THAT ITS 15-YEAR DURATIONAL RESIDENCY
REQUIREMENT FOR ALIENS IS ACTUALLY AUTHORIZED BY FEDERAL LAW.  RELIANCE
IS PLACED ON SEC. 1402(B) OF THE SOCIAL SECURITY ACT OF 1935, ADDED BY
THE ACT OF AUG. 28, 1950, SEC. 351, 64 STAT. 556, AS AMENDED, 42 U.S.C.
1352(B).  THAT SECTION PROVIDES: 

     "THE SECRETARY SHALL APPROVE ANY PLAN WHICH FULFILLS THE

  CONDITIONS SPECIFIED IN SUBSECTION (A) OF THIS SECTION, ESCEPT

  THAT HE SHALL NOT APPROVE ANY PLAN WHICH IMPOSES, AS A CONDITION

  OF ELIGIBILITY FOR AID TO THE PERMANENTLY AND TOTALLY DISABLED

UNDER THE PLAN-- 

     (2) ANY CITIZENSHIP REQUIREMENT WHICH EXCLUDES ANY CITIZEN OF
THE UNITED STATES."  /11/ 

THE MEANING OF THIS PROVISION IS NOT ENTIRELY CLEAR.  ON ITS FACE,
THE STATUTE DOES NOT AFFIRMATIVELY AUTHORIZE, MUCH LESS COMMAND, THE
STATES TO ADOPT DURATIONAL RESIDENCY REQUIREMENTS OR OTHER ELIGIBILITY
RESTRICTIONS APPLICABLE TO ALIENS; IT MERELY DIRECTS THE SECRETARY NOT
TO APPROVE STATE-SUBMITTED PLANS THAT EXCLUDE CITIZENS OF THE UNITED
STATES FROM ELIGIBILITY.  CF. SHAPIRO V. THOMPSON, 394 U.S.,AT 638
641. 

WE HAVE BEEN UNABLE TO FIND IN THE LEGISLATIVE HISTORY OF THE 1950
AMENDMENTS ANY CLEAR INDICATION OF CONGRESSIONAL INTENT IN ENACTING
SEC. 1402(B).  /12/  THE PROVISION APPEARS TO HAVE ITS ROOTS IN
IDENTICAL LANGUAGE OF THE OLD-AGE ASSISTANCE AND AID-TO-THE-BLIND
STAT. 620, 42 U.S.C. 302(B); 49 STAT. 645, 42 U.S.C. 1202(B).  THE
HOUSE AND SENATE COMMITTEE REPORTS EXPRESSLY STATE, WITH REFERENCE TO
OLD-AGE ASSISTANCE, THAT: 

"A PERSON SHALL NOT BE DENIED ASSISTANCE ON THE GROUND THAT HE HAS
NOT BEEN A UNITED STATES CITIZEN FOR A NUMBER OF YEARS, IF IN FACT,
WHEN HE RECEIVES ASSISTANCE, HE IS A UNITED STATES CITIZEN.  THIS MEANS
THAT A STATE MAY, IF IT WISHES, ASSIST ONLY THOSE WHO ARE CITIZENS, BUT
MUST NOT INSIST ON THEIR HAVING BEEN BORN CITIZENS OR ON THEIR HAVING
BEEN NATURALIZED CITIZENS FOR A SPECIFIED PERIOD OF TIME."  /13/ 

IT IS APPARENT FROM THIS THAT CONGRESS' PRINCIPAL CONCERN IN 1935
WAS TO PREVENT THE STATES FROM DISTINGUISHING BETWEEN NATIVE-BORN
AMERICAN CITIZENS AND NATURALIZED CITIZENS IN THE DISTRIBUTION OF
WELFARE BENEFITS.  IT MAY BE ASSUMED THAT CONGRESS WAS MOTIVATED BY A
SIMILAR CONCERN IN 1950 WHEN IT ENACTED SEC. 1402(B).  AS FOR THE
INDICATION IN THE 1935 COMMITTEE REPORTS THAT THE STATES, IN THEIR
DISCRETION, COULD WITHHOLD BENEFITS FROM NON-CITIZENS, CERTAIN MEMBERS
OF CONGRESS SIMPLY MAY HAVE BEEN EXPRESSING THEIR UNDERSTANDING OF THE
LAW ONLY INSOFAR AS IT HAD THEN DEVELOPED, THAT IS, BEFORE TAKAHASHI
WAS DECIDED.  BUT IF SEC. 1402(B), AS WELL AS THE IDENTICAL PROVISIONS
FOR OLD-AGE ASSISTANCE AND AID TO THE BLIND, WERE TO BE READ SO AS TO
AUTHORIZE DISCRIMINATORY TREATMENT OF ALIENS AT THE OPTION OF THE
STATES, TAKAHASHI DEMONSTRATES THAT SERIOUS CONSTITUTIONAL QUESTIONS
ARE PRESENTED.  ALTHOUGH THE FEDERAL GOVERNMENT ADMITTEDLY HAS BROAD
CONSTITUTIONAL POWER TO DETERMINE WHAT ALIENS SHALL BE ADMITTED TO THE
UNITED STATES, THE PERIOD THEY MAY REMAIN, AND THE TERMS AND CONDITIONS
OF THEIR NATURALIZATION, CONGRESS DOES NOT HAVE THE POWER TO AUTHORIZE
THE INDIVIDUAL STATES TO VIOLATE THE EQUAL PROTECTION CLAUSE.  SHAPIRO
V. THOMPSON, 394 U.S.,AT 641.  UNDER ART. I, SEC. 8, CL. 4, OF THE
CONSTITUTION, CONGRESS' POWER IS TO "ESTABLISH AN UNIFORM RULE OF
NATURALIZATION."  A CONGRESSIONAL ENACTMENT CONSTRUED SO AS TO PERMIT
STATE LEGISLATURES TO ADOPT DIVERGENT LAWS ON THE SUBJECT OF
CITIZENSHIP REQUIREMENTS FOR FEDERALLY SUPPORTED WELFARE PROGRAMS WOULD
APPEAR TO CONTRAVENE THIS EXPLICIT CONSTITUTIONAL REQUIREMENT OF
UNIFORMITY.  /14/  SINCE "STATUTES SHOULD BE CONSTRUED WHENEVER
POSSIBLE SO AS TO UPHOLD THEIR CONSTITUTIONALITY," UNITED STATES V.
VUITCH, 402 U.S. 62, 70 (1971), WE CONCLUDE THAT SEC. 1402(B) DOES NOT
AUTHORIZE THE ARIZONA 15-YEAR NATIONAL RESIDENCY REQUIREMENT.     THE
JUDGMENTS APPEALED FROM ARE AFFIRMED. 

IT IS SO ORDERED.     /0/  TOGETHER WITH NO. 727, SAILER ET AL. V.
LEGER ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA. 

/1/  SEE, FOR EXAMPLE, KING V. SMITH, 392 U.S. 309 (1968); SHAPIRO
V. THOMPSON, 394 U.S. 618 (1969); GOLDBERG V. KELLY, 397 U.S. 254
(1970); ROSADO V. WYMAN, 397 U.S. 397 (1970); DANDRIDGE V. WILLIAMS,
397 U.S. 471 (1970); WYMAN V. JAMES, 400 U.S. 309 (1971). 

/2/  THE SUIT IS BROUGHT ON BEHALF OF APPELLEE AND SIMILARLY
SITUATED ARIZONA RESIDENT ALIENS WHO, BUT FOR THEIR INABILITY TO MEET
THE ARIZONA RESIDENCE REQUIREMENT, ARE ELIGIBLE TO RECEIVE WELFARE
BENEFITS UNDER STATE-ADMINISTERED FEDERAL CATEGORICAL ASSISTANCE
PROGRAMS FOR THE PERMANENTLY AND TOTALLY DISABLED, THE AGED, AND THE
BLIND. 

/3/  "SEC.  432.  ELIGIBILITY 

"EXCEPT AS HEREINAFTER OTHERWISE PROVIDED . . . NEEDY PERSONS OF THE
CLASSES DEFINED IN CLAUSES (1) AND (2) OF THIS SECTION SHALL BE
ELIGIBLE FOR ASSISTANCE: 

"(1) PERSONS FOR WHOSE ASSISTANCE FEDERAL FINANCIAL PARTICIPATION IS
AVAILABLE TO THE COMMONWEALTH . . . 

"(2) OTHER PERSONS WHO ARE CITIZENS OF THE UNITED STATES, OR WHO,
DURING THE PERIOD JANUARY 1, 1938 TO DECEMBER 31, 1939, FILED THEIR
DECLARATION OF INTENTION TO BECOME CITIZENS.  . . . " 

/4/  IT WAS STIPULATED THAT THE CLASS OF PERSONS THE APPELLEES
REPRESENT APPROXIMATES 65 TO 70 CASES ANNUALLY.  THIS FIGURE STANDS IN
STRIKING CONTRAST TO THE 585,000 PERSONS IN THE COMMONWEALTH ON
CATEGORICAL ASSISTANCE AND 85,000 ON GENERAL ASSISTANCE.  DEPARTMENT OF
PUBLIC WELFARE REPORT OF PUBLIC ASSISTANCE, DEC. 31, 1969. 

/5/  SEE OYAMA V. CALIFORNIA, 332 U.S. 633, 644-646 (1948);
KOREMATSU V. UNITED STATES, 323 U.S. 214, 216 (1944); HIRABAYASHI V.
UNITED STATES, 320 U.S. 81, 100 (1943). 

/6/  MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 191-192 (1964); LOVING V.
VIRGINIA, 388 U.S. 1, 9 (1967); BOLLING V. SHARPE, 347 U.S. 497, 499
(1954). 

/7/  MCCREADY V. VIRGINIA, 94 U.S. 391 (1877); PATSONE V.
PENNSYLVANIA, 232 U.S. 138 (1914). 

/8/  HAUENSTEIN V. LYNHAM, 100 U.S. 483 (1880); BLYTHE V. HINCKLEY,
180 U.S. 333 (1901). 

/9/  TERRACE V. THOMPSON, 263 U.S. 197 (1923); PORTERFIELD V. WEBB,
263 U.S. 225 (1923); WEBB V. O'BRIEN, 263 U.S. 313 (1923); FRICK V.
WEBB, 263 U.S. 326 (1923); BUT SEE OYAMA V. CALIFORNIA, 332 U.S. 633
(1948). 

/10/  E.G., PASSENGER CASES, 7 HOW.  283, 492 (1849); CRANDALL V.
NEVADA, 6 WALL.  35, 48-49 (1868); TWINING V. NEW JERSEY, 211 U.S. 78,
97 (1908); EDWARDS V. CALIFORNIA, 314 U.S. 160, 178-181 (DOUGLAS, J.,
CONCURRING), 183-185 (JACKSON, J., CONCURRING) (1941); SHAPIRO V.
THOMPSON, 394 U.S.,AT 629; OREGON V. MITCHELL, 400 U.S. 112, 285
(OPINION OF STEWARD, J.)  (1970). 

/11/  PURSUANT TO HIS RULEMAKING POWER UNDER THE SOCIAL SECURITY
ACT, 42 U.S.C. 1302, THE SECRETARY OF HEALTH, EDUCATION AND WELFARE
ADOPTED THE FOLLOWING REGULATIONS, UPON WHICH ARIZONA ALSO RELIES: 

"3720.  REQUIREMENTS FOR STATE PLANS 

"A STATE PLAN UNDER TITLES I, X, XIV, AND XVI MAY NOT IMPOSE, AS A
CONDITION OF ELIGIBILITY, ANY CITIZENSHIP REQUIREMENT WHICH EXCLUDES
ANY CITIZEN OF THE UNITED STATES." 

"3730.  INTERPRETATION OF REQUIREMENT 

"STATE PLANS NEED NOT CONTAIN A CITIZENSHIP REQUIREMENT.  THE
PURPOSE OF IV-3720 IS TO ENSURE THAT WHERE SUCH A REQUIREMENT IS
IMPOSED, AN OTHERWISE ELIGIBLE CITIZEN OF THE UNITED STATES, REGARDLESS
OF HOW (BY BIRTH OR NATURALIZATION) OR WHEN CITIZENSHIP WAS OBTAINED,
SHALL NOT BE DISQUALIFIED FROM RECEIVING AID OR ASSISTANCE UNDER TITLES
I, X, XIV, AND XVI. 

"WHERE THERE IS AN ELIGIBILITY REQUIREMENT APPLICABLE TO
NONCITIZENS, STATE PLANS MAY, AS AN ALTERNATIVE TO EXCLUDING ALL
NONCITIZENS, PROVIDE FOR QUALIFYING NONCITIZENS, OTHERWISE ELIGIBLE,
WHO HAVE RESIDED IN THE UNITED STATES FOR A SPECIFIC NUMBER OF YEARS." 
HEW HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION, PT. IV. 

/12/  H.R. REP. NO. 1300, 81ST CONG., 1ST SESS., 53, 153-154; S.
REP. NO. 1669, 81ST CONG., 2D SESS.; H.R. CONF. REP. NO. 2771, 81ST
CONG., 2D SESS., 118-119. 

/13/  H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 18; S. REP. NO. 628,
74TH CONG., 1ST SESS., 29. 

/14/  WE HAVE NO OCCASION TO DECIDE WHETHER CONGRESS, IN THE
EXERCISE OF THE IMMIGRATION AND NATURALIZATION POWER, COULD ITSELF
ENACT A STATUTE IMPOSING ON ALIENS A UNIFORM NATIONWIDE RESIDENCY
REQUIREMENT AS A CONDITION OF FEDERALLY FUNDED WELFARE BENEFITS. 

MR. JUSTICE HARLAN JOINS IN PARTS III AND IV OF THE COURT'S OPINION,
AND IN THE JUDGMENT OF THE COURT. 

MICHAEL S. FLAM, ASSISTANT ATTORNEY GENERAL OF ARIZONA, ARGUED THE
CAUSE FOR APPELLANT IN NO. 609.  WITH HIM ON THE BRIEFS WERE GARY K.
NELSON, ATTORNEY GENERAL, AND JAMES B. FEELEY, ANDREW W. BETTWY, ROGER
M. HORNE, AND PETER SOWNIE, ASSISTANT ATTORNEYS GENERAL.  JOSEPH P.
WORK, ASSISTANT ATTORNEY GENERAL OF PENNSYLVANIA, ARGUED THE CAUSE FOR
APPELLANTS IN NO. 727.  WITH HIM ON THE BRIEF WERE FRED SPEAKER,
ATTORNEY GENERAL, BARRY A. ROTH, ASSISTANT DEPUTY ATTORNEY GENERAL, AND
EDWARD FRIEDMAN. 

ANTHONY B. CHING ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES IN
NO. 609.  JONATHAN M. STEIN ARGUED THE CAUSE FOR APPELLEES IN NO. 727,
PRO HAC VICE.  WITH HIM ON THE BRIEF WERE HARVEY N. SCHMIDT AND
JOHNATHAN WEISS. 

MR. WEISS FILED A BRIEF FOR THE LEGAL SERVICES FOR THE ELDERLY POOR
PROJECT OF THE CENTER ON SOCIAL WELFARE POLICY AND LAW AS AMICUS CURIAE
URGING AFFIRMANCE IN NO. 609.  ROBERT A. SEDLER AND MELVIN L. WULF
FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE
URGING AFFIRMANCE IN BOTH CASES.  BRIEFS OF AMICI CURIAE URGING
AFFIRMANCE IN NO. 727 WERE FILED BY EDITH LOWENSTEIN FOR MIGRATION AND
REFUGEE SERVICES, U.S. CATHOLIC CONFERENCE, INC., ET AL., AND BY JACK
WASSERMAN AND ESTHER M. KAUFMAN FOR THE ASSOCIATION OF IMMIGRATION AND
NATIONALITY LAWYERS. 
..END :

















SIMPSON V. FLORIDA, 403 U.S. 384 


       SIMPSON V. FLORIDA

        ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF

           APPEAL OF FLORIDA, FIRST DISTRICT

        NO. 1267.  DECIDED JUNE 14, 1971 


A STORE MANAGER AND A CUSTOMER WERE ROBBED BY TWO ARMED MEN. 
PETITIONER WAS TRIED AND CONVICTED OF ROBBING THE MANAGER, BUT ON
RETRIAL AFTER REVERSAL HE WAS ACQUITTED.  HE WAS THEN CHARGED WITH
ROBBING THE CUSTOMER, HIS MOTION TO QUASH THE INFORMATION ON DOUBLE
JEOPARDY GROUNDS WAS OVERRULED, AND HE WAS FOUND GUILTY.  EACH JURY
VERDICT WAS A GENERAL ONE.  THE DISTRICT COURT OF APPEAL, AFTER THE
DECISION IN ASHE V. SWENSON, 397 U.S. 436, HELD AS A MATTER OF LAW
THAT, WHILE THE ACQUITTAL AT THE SECOND TRIAL ENTITLED PETITIONER TO
INVOKE COLLATERAL ESTOPPEL, HIS CONVICTION AT THE FIRST TRIAL GAVE RISE
TO A "DOUBLE COLLATERAL ESTOPPEL," ALLOWING THE STATE TO RELY ON THE
FINDING OF THE JURY AT THE FIRST TRIAL THAT HE WAS A PARTICIPANT IN THE
ROBBERY.  THE STATE SUPREME COURT DENIED REVIEW.  HELD:  AS STATED IN
ASHE, SUPRA, "MUTUALITY" IS NOT AN INGREDIENT OF THE COLLATERAL
ESTOPPEL RULE IMPOSED ON THE STATES BY THE FIFTH AND FOURTEENTH
AMENDMENTS; AND UNLESS THE JURY VERDICT IN THE SECOND TRIAL "COULD HAVE
(BEEN) GROUNDED . . . UPON AN ISSUE OTHER THAN THAT WHICH THE DEFENDANT
SEEKS TO FORECLOSE FROM CONSIDERATION" THE DOUBLE JEOPARDY PROVISION
VITIATES PETITIONER'S CONVICTION. 

CERTIORARI GRANTED; 237 SO.2D 341, VACATED AND REMANDED. 

PER CURIAM. 

ON NOVEMBER 9, 1966, TWO ARMED MEN ENTERED A STORE IN JACKSONVILLE,
FLORIDA, AND ROBBED THE MANAGER AND A CUSTOMER.  DURING 1967 PETITIONER
WAS TRIED AND CONVICTED IN THE STATE COURTS, AFTER A JURY TRIAL, OF THE
ARMED ROBBERY OF THE MANAGER, BUT THE CONVICTION WAS REVERSED ON APPEAL
BECAUSE THE TRIAL JUDGE NEGLECTED TO INSTRUCT THE JURY ON THE LESSER
INCLUDED OFFENSE OF LARCENY.  GRIFFIN V. STATE, 202 SO.2D 602 (FLA.
DIST. CT. APP. 1967).  IN 1968 PETITIONER WAS RETRIED ON THE SAME
CHARGE AND ACQUITTED.  SUBSEQUENTLY, HE WAS CHARGED WITH ROBBING THE
CUSTOMER.  HIS MOTION TO QUASH THE INFORMATION ON DOUBLE JEOPARDY
GROUNDSWAS OVERRULED AND A JURY FOUND PETITIONER GUILTY OF ARMED
ROBBERY.  EACH OF THE THREE JURY VERDICTS HERE INVOLVED WAS A GENERAL
ONE.  THE TRIAL COURT IMPOSED A 30-YEAR SENTENCE AND PETITIONER
APPEALED TO THE DISTRICT COURT OF APPEAL. 

PRIOR TO THE ADJUDICATION OF PETITIONER'S APPEAL, THIS COURT
RENDERED ITS DECISION IN ASHE V. SWENSON, 397 U.S. 436.  WE THERE HELD
THAT THE PRINCIPLE OF COLLATERAL ESTOPPEL, WHICH "BARS RELITIGATION
BETWEEN THE SAME PARTIES OF ISSUES ACTUALLY DETERMINED AT A PREVIOUS
TRIAL," ID., AT 442, IS "EMBODIED IN THE FIFTH AMENDMENT GUARANTEE
AGAINST DOUBLE JEOPARDY," ID., AT 445, AND IS FULLY APPLICABLE TO THE
STATES, BY FORCE OF THE FOURTEENTH AMENDMENT, IN LIGHT OF BENTON V.
MARYLAND, 395 U.S. 784. 

THE FACTUAL SITUATION PRESENTED IN ASHE REMARKABLY PARALLELS THAT OF
THE INSTANT CASE.  THERE THREE OR FOUR MEN HAD INTERRUPTED A POKER GAME
AND ROBBED ALL SIX PARTICIPANTS.  PETITIONER HAD BEEN ACQUITTED BY A
GENERAL JURY VERDICT ON A CHARGE OF ROBBING ONE OF THE POKER PLAYERS,
BUT WAS LATER TRIED AND CONVICTED OF ROBBING A SECOND.  HE CONTENDED
THAT THE PROHIBITION AGAINST DOUBLE JEOPARDY OPERATED AS A BAR TO THE
SECOND PROSECUTION BECAUSE THE ONLY ISSUE IN EACH TRIAL WAS THE
IDENTITY OF THE ROBBERS.  WE HELD IN ASHE THAT: 

"WHERE A PREVIOUS JUDGMENT OF ACQUITTAL WAS BASED UPON A GENERAL
VERDICT . . . (THE RULE OF COLLATERAL ESTOPPEL) REQUIRES A COURT TO
'EXAMINE THE RECORD OF A PRIOR PROCEEDING, TAKING INTO ACCOUNT THE
PLEADINGS, EVIDENCE, CHARGE, AND OTHER RELEVANT MATTER, AND CONCLUDE
WHETHER A RATIONAL JURY COULD HAVE GROUNDED ITS VERDICT UPON AN ISSUE
OTHER THAN THAT WHICH THE DEFENDANT SEEKS TO FORECLOSE FROM
CONSIDERATION.'"  ASHE, SUPRA, AT 444. 

HERE, AS IN ASHE, PETITIONER CONTENDS THAT HIS IDENTITY AS ONE OF
THE ROBBERS WAS THE SOLE DISPUTED ISSUE AT EACH OF HIS TRIALS.  THE
DISTRICT COURT OF APPEAL, HOWEVER, DECLINED TO EXAMINE THE RECORD OF
THE SECOND TRIAL, BUT SIMPLY HELD INSTEAD, AS A MATTER OF LAW, THAT
WHILE PETITIONER'S ACQUITTAL AT THE SECOND TRIAL ENTITLED HIM TO INVOKE
COLLATERAL ESTOPPEL, HIS CONVICTION AT THE FIRST TRIAL (WHERE THE
SUFFICIENCY OF THE EVIDENCE WAS NOT DISPUTED ON APPEAL) GAVE RISE TO A
"DOUBLE COLLATERAL ESTOPPEL IN THAT BY APPLICATION OF THIS DOCTRINE,
APPELLANT IS ESTOPPED FROM CONTENDING WITHOUT FURTHER PROOF THAT THE
STATE FAILED TO PROVE THE ISSUE OF HIS IDENTITY AS ONE OF THE ROBBERS
ON . . . THE SECOND TRIAL INASMUCH AS ON THE FIRST TRIAL A JURY HAD
FOUND ABOVE AND BEYOND A REASONABLE DOUBT THAT APPELLANT WAS A
PARTICIPANT IN THE ROBBERY."  SIMPSON V. STATE, 237 SO.2D 341, 342
(FLA. APP. 1970). 

THE SUPREME COURT OF FLORIDA, BY A DIVIDED VOTE, DECLINED REVIEW,
AND PETITIONER FILED A TIMELY PETITION FOR A WRIT OF CERTIORARI WITH
THIS COURT.  WE GRANT THE WRIT AND WE VACATE THE JUDGMENT. 

THE GROUND UPON WHICH THE STATE COURT RESOLVED PETITIONER'S
CONTENTION IS PLAINLY NOT TENABLE.  INDEED, IN ASHE ITSELF, WE
SPECIFICALLY NOTED THAT "MUTUALITY" WAS NOT AN INGREDIENT OF THE
COLLATERAL ESTOPPEL RULE IMPOSED BY THE FIFTH AND FOURTEENTH AMENDMENTS
UPON THE STATES.  ASHE, SUPRA, AT 443.  IT IS CLEAR THAT FLORIDA COULD
NOT HAVE RETRIED PETITIONER A THIRD TIME ON THE CHARGE OF ROBBING THE
STORE MANAGER SIMPLY BECAUSE IT HAD PREVIOUSLY SECURED A JURY VERDICT
OF GUILTY AS WELL AS ONE OF ACQUITTAL.  AND, HAD THE SECOND TRIAL NEVER
OCCURRED, THE PROSECUTOR COULD NOT, WHILE TRYING THE CASE UNDER REVIEW,
HAVE LAID THE FIRST JURY VERDICT BEFORE THE TRIAL JUDGE AND DEMANDED AN
INSTRUCTION TO THE JURY THAT, AS A MATTER OF LAW, PETITIONER WAS ONE OF
THE ARMED ROBBERS IN THE STORE THAT NIGHT.  IT MUST, THEREFORE, BE
EQUALLY CLEAR THAT UNLESS THE JURY VERDICT IN THE SECOND TRIAL "COULD
HAVE (BEEN) GROUNDED . . . UPON AN ISSUE OTHER THAN THAT WHICH THE
DEFENDANT SEEKS TO FORECLOSE FROM CONSIDERATION" THE CONSTITUTIONAL
GUARANTEE AGAINST BEING TWICE PUT IN JEOPARDY FOR THE SAME OFFENSE
VITIATES PETITIONER'S CONVICTION. 

THE JUDGMENT OF THE FLORIDA DISTRICT COURT OF APPEAL IS VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

       IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS. 

THE ROBBERY OF THE MANAGER AND THE ROBBERY OF THE CUSTOMER GREW OUT
OF ONE CRIMINAL EPISODE.  I AGREE WITH THE COURT'S DISPOSITION BUT, FOR
THE REASONS STATED IN MY CONCURRING OPINION IN ASHE V. SWENSON, 397
U.S. 436, 448 (1970), I WOULD ALSO HOLD THAT ON THE FACTS OF THIS CASE
THE DOUBLE JEOPARDY CLAUSE PROHIBITED FLORIDA FROM PROSECUTING
PETITIONER FOR THE ROBBERY OF THE CUSTOMER. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACKMUN DISSENT FOR THE REASONS
GIVEN IN THE DISSENTING OPINION OF THE CHIEF JUSTICE IN ASHE V.
SWENSON, 397 U.S. 436, 460. 
..END :









GORDON V. LANCE, 403 U.S. 1 


       GORDON ET AL. V. LANCE ET AL.

        CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

NO. 96.  ARGUED JANUARY 18, 1971-- DECIDED JUNE 7, 1971 


WEST VIRGINIA'S CONSTITUTIONAL AND STATUTORY REQUIREMENT THAT
POLITICAL SUBDIVISIONS MAY NOT INCUR BONDED INDEBTEDNESS OR INCREASE
TAX RATES BEYOND THOSE ESTABLISHED BY THE STATE CONSTITUTION WITHOUT
THE APPROVAL OF 60% OF THE VOTERS IN A REFERENDUM ELECTION DOES NOT
DISCRIMINATE AGAINST OR AUTHORIZE DISCRIMINATION AGAINST ANY
IDENTIFIABLE CLASS AND DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OR
ANY OTHER PROVISION OF THE UNITED STATES CONSTITUTION.  GRAY V.
SANDERS, 372 U.S. 368, AND CIPRIANO V. CITY OF HOUMA, 395 U.S. 701,
DISTINGUISHED.  PP. 4-8. 

153 W.VA 559, 170 S.E.2D 783, REVERSED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH BLACK,
DOUGLAS, STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  HARLAN, J., FILED
A STATEMENT CONCURRING IN THE RESULT, POST, P. 8.  BRENNAN AND
MARSHALL, JJ., FILED A DISSENTING STATEMENT, POST, P. 8. 

MR.CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO REVIEW A CHALLENGE TO A 60% VOTE
REQUIREMENT TO INCUR PUBLIC DEBT AS VIOLATIVE OF THE FOURTEENTH
AMENDMENT. 

THE CONSTITUTION OF WEST VIRGINIA AND CERTAIN WEST VIRGINIA STATUTES
PROVIDE THAT POLITICAL SUBDIVISIONS OF THE STATE MAY NOT INCUR BONDED
INDEBTEDNESS OR INCREASE TAX RATES BEYOND THOSE ESTABLISHED BY THE
CONSTITUTION WITHOUT THE APPROVAL OF 60% OF THE VOTERS IN A REFERENDUM
ELECTION. 

ON APRIL 29, 1968, THE BOARD OF EDUCATION OF ROANE COUNTY, WEST
VIRGINIA, SUBMITTED TO THE VOTERS OF ROANE COUNTY A PROPOSAL CALLING
FOR THE ISSUANCE OF GENERAL OBLIGATION BONDS IN THE AMOUNT OF
$1,830,000 FOR THE PURPOSE OF CONSTRUCTING NEW SCHOOL BUILDINGS AND
IMPROVING EXISTING EDUCATIONAL FACILITIES.  AT THE SAME ELECTION, BY
SEPARATE BALLOT, THE VOTERS WERE ASKED TO AUTHORIZE THE BOARD OF
EDUCATION TO LEVY ADDITIONAL TAXES TO SUPPORT CURRENT EXPENDITURES AND
CAPITAL IMPROVEMENTS.  OF THE TOTAL VOTES CAST, 51.55% FAVORED THE BOND
ISSUES AND 51.51% FAVORED THE TAX LEVY.  HAVING FAILED TO OBTAIN THE
REQUISITE 60% AFFIRMATIVE VOTE, THE PROPOSALS WERE DECLARED DEFEATED. 

FOLLOWING THE ELECTION, RESPONDENTS APPEARED BEFORE THE BOARD OF
EDUCATION ON BEHALF OF THEMSELVES AND OTHER PERSONS WHO HAD VOTED IN
FAVOR OF THE PROPOSALS AND DEMANDED THAT THE BOARD AUTHORIZE THE BONDS
AND THE ADDITIONAL TAXES.  THE BOARD REFUSED. 

RESPONDENTS THEN BROUGHT THIS ACTION, SEEKING A DECLARATORY JUDGMENT
THAT THE 60% REQUIREMENTS WERE UNCONSTITUTIONAL AS VIOLATIVE OF THE
FOURTEENTH AMENDMENT.  IN THEIR COMPLAINT THEY ALLEGED THAT THE ROANE
COUNTY SCHOOLS HAD BEEN BASICALLY UNIMPROVED SINCE 1946 AND FELL FAR
BELOW THE STATE AVERAGE, BOTH IN CLASSROOM SIZE AND FACILITIES.  THEY
FURTHER ALLEGED THAT FOUR SIMILAR PROPOSALS HAD BEEN PREVIOUSLY
DEFEATED, ALTHOUGH EACH HAD RECEIVED MAJORITIES OF AFFIRMATIVE VOTES
RANGING FROM 52.51% TO 55.84%.  THE WEST VIRGINIA TRIAL COURT DISMISSED
THE COMPLAINT.  ON APPEAL, THE WEST VIRGINIA SUPREME COURT OF APPEALS
REVERSED HOLDING THAT THE STATE CONSTITUTIONAL AND STATUTORY 60%
REQUIREMENTS VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  153 W.VA. 559, 170 S.E.2D 783 (1969).  WE GRANTED
CERTIORARI, 397 U.S. 1020 (1970), AND FOR THE REASONS SET FORTH BELOW,
WE REVERSE. 

THE COURT BELOW RELIED HEAVILY ON TWO OF OUR HOLDINGS DEALING WITH
LIMITATIONS ON THE RIGHT TO VOTE AND DILUTION OF VOTING POWER.  THE
FIRST WAS GRAY V. SANDERS, 372 U.S. 368 (1963), WHICH HELD THAT
GEORGIA'S COUNTY-UNIT SYSTEM VIOLATED THE EQUAL PROTECTION CLAUSE,
BECAUSE THE VOTES OF PRIMARY ELECTORS IN ONE COUNTY WERE ACCORDED LESS
WEIGHT THAN THE VOTES OF ELECTORS IN OTHER COUNTIES.  THE SECOND WAS
CIPRIANO V. CITY OF HOUMA, 395 U.S. 701 (1969), IN WHICH WE HELD
IMPERMISSIBLE THE LIMITATION TO "PROPERTY TAXPAYERS" OF THE RIGHT TO
VOTE IN A REVENUE BOND REFERENDUM.  FROM THESE CASES THE STATE COURT
CONCLUDED THAT WEST VIRGINIA'S REQUIREMENT WAS CONSTITUTIONALLY
DEFECTIVE, BECAUSE THE VOTES OF THOSE WHO FAVORED THE ISSUANCE OF THE
BONDS HAD A PROPORTIONATELY SMALLER IMPACT ON THE OUTCOME OF THE
ELECTION THAN THE VOTES OF THOSE WHO OPPOSED ISSUANCE OF THE BONDS. 

WE CONCLUDE THAT THE WEST VIRGINIA COURT'S RELIANCE ON THE GRAY AND
CIPRIANO CASES WAS MISPLACED.  THE DEFECT THIS COURT FOUND IN THOSE
CASES LAY IN THE DENIAL OR DILUTION OF VOTING POWER BECAUSE OF GROUP
CHARACTERISTICS-- GEOGRAPHIC LOCATION AND PROPERTY OWNERSHIP-- THAT
BORE NO VALID RELATION TO THE INTEREST OF THOSE GROUPS IN THE SUBJECT
MATTER OF THE ELECTION; MOREOVER, THE DILUTION OR DENIAL WAS IMPOSED
IRRESPECTIVE OF HOW MEMBERS OF THOSE GROUPS ACTUALLY VOTED.  /1/ 

THUS IN GRAY, SUPRA, AT 381 N. 12, WE HELD THAT THE COUNTY-UNIT
SYSTEM WOULD HAVE BEEN DEFECTIVE EVEN IF UNIT VOTES WERE ALLOCATED
STRICTLY IN PROPORTION TO POPULATION.  WE NOTED THAT IF A CANDIDATE
RECEIVED 60% OF THE VOTES CAST IN A PARTICULAR COUNTY HE WOULD RECEIVE
THAT COUNTY'S ENTIRE UNIT VOTE, THE 40% CAST FOR THE OTHER CANDIDATES
BEING DISCARDED.  THE DEFECT, HOWEVER, CONTINUED TO BE GEOGRAPHIC
DISCRIMINATION.  VOTES FOR THE LOSING CANDIDATES WERE DISCARDED SOLELY
BECAUSE OF THE COUNTY WHERE THE VOTES WERE CAST.  INDEED, VOTES FOR THE
WINNING CANDIDATE IN A COUNTY WERE LIKEWISE DEVALUED, BECAUSE ALL
MARGINAL VOTES FOR HIM WOULD BE DISCARDED AND WOULD HAVE NO IMPACT ON
THE STATEWIDE TOTAL. 

CIPRIANO WAS NO MORE THAN A REASSERTION OF THE PRINCIPLE,
CONSISTENTLY RECOGNIZED, THAT AN INDIVIDUAL MAY NOT BE DENIED ACCESS TO
THE BALLOT BECAUSE OF SOME EXTRANEOUS CONDITION, SUCH AS RACE, E.G.,
GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960); WEALTH, E.G., HARPER V.
VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663 (1966); TAX STATUS, E.G.,
KRAMER V. UNION FREE SCHOOL DIST., 395 U.S. 621 (1969); OR MILITARY
STATUS, E.G., CARRINGTON V. RASH, 380 U.S. 89 (1965). 

UNLIKE THE RESTRICTIONS IN OUR PREVIOUS CASES, THE WEST VIRGINIA
CONSTITUTION SINGLES OUT NO "DISCRETE AND INSULAR MINORITY" FOR SPECIAL
TREATMENT.  THE THREE-FIFTHS REQUIREMENT APPLIES EQUALLY TO ALL BOND
ISSUES FOR ANY PURPOSE, WHETHER FOR SCHOOLS, SEWERS, OR HIGHWAYS.  WE
ARE NOT, THEREFORE, PRESENTED WITH A CASE LIKE HUNTER V. ERICKSON, 393
U.S. 385 (1969), IN WHICH FAIR HOUSING LEGISLATION ALONE WAS SUBJECT TO
AN AUTOMATIC REFERENDUM REQUIREMENT. 

THE CLASS SINGLED OUT IN HUNTER WAS CLEAR-- "THOSE WHO WOULD BENEFIT
FROM LAWS BARRING RACIAL, RELIGIOUS, OR ANCESTRAL DISCRIMINATIONS,"
SUPRA, AT 391.  IN CONTRAST WE CAN DISCERN NO INDEPENDENTLY
IDENTIFIABLE GROUP OR CATEGORY THAT FAVORS BONDED INDEBTEDNESS OVER
OTHER FORMS OF FINANCING.  CONSEQUENTLY NO SECTOR OF THE POPULATION MAY
BE SAID TO BE "FENCED OUT" FROM THE FRANCHISE BECAUSE OF THE WAY THEY
WILL VOTE.  CF. CARRINGTON V. RASH, SUPRA, AT 94. 

ALTHOUGH WEST VIRGINIA HAS NOT DENIED ANY GROUP ACCESS TO THE
BALLOT, IT HAS INDEED MADE IT MORE DIFFICULT FOR SOME KINDS OF
GOVERNMENTAL ACTIONS TO BE TAKEN.  CERTAINLY ANY DEPARTURE FROM STRICT
MAJORITY RULE GIVES DISPROPORTIONATE POWER TO THE MINORITY.  BUT THERE
IS NOTHING IN THE LANGUAGE OF THE CONSTITUTION, OUR HISTORY, OR OUR
CASES THAT REQUIRES THAT A MAJORITY ALWAYS PREVAIL ON EVERY ISSUE.  ON
THE CONTRARY, WHILE WE HAVE RECOGNIZED THAT STATE OFFICIALS ARE
NORMALLY CHOSEN BY A VOTE OF THE MAJORITY OF THE ELECTORATE, WE HAVE
FOUND NO CONSTITUTIONAL BARRIER TO THE SELECTION OF A GOVERNOR BY A
STATE LEGISLATURE, AFTER NO CANDIDATE RECEIVED A MAJORITY OF THE
POPULAR VOTE.  FORTSON V. MORRIS, 385 U.S. 231 (1966). 

THE FEDERAL CONSTITUTION ITSELF PROVIDES THAT A SIMPLE MAJORITY VOTE
IS INSUFFICIENT ON SOME ISSUES; THE PROVISIONS ON IMPEACHMENT AND
RATIFICATION OF TREATIES ARE BUT TWO EXAMPLES.  MOREOVER, THE BILL OF
RIGHTS REMOVES ENTIRE AREAS OF LEGISLATION FROM THE CONCEPT OF
MAJORITARIAN SUPREMACY.  THE CONSTITUTIONS OF MANY STATES PROHIBIT OR
SEVERELY LIMIT THE POWER OF THE LEGISLATURE TO LEVY NEW TAXES OR TO
CREATE OR INCREASE BONDED INDEBTEDNESS, /2/  THEREBY INSULATING ENTIRE
AREAS FROM MAJORITY CONTROL.  WHETHER THESE MATTERS OF FINANCE AND
TAXATION ARE TO BE CONSIDERED AS LESS "IMPORTANT" THAN MATTERS OF
TREATIES, FOREIGN POLICY, OR IMPEACHMENT OF PUBLIC OFFICERS IS MORE
PROPERLY LEFT TO THE DETERMINATION BY THE STATES AND THE PEOPLE THAN TO
THE COURTS OPERATING UNDER THE BROAD MANDATE OF THE FOURTEENTH
AMENDMENT.  IT MUST BE REMEMBERED THAT IN VOTING TO ISSUE BONDS VOTERS
ARE COMMITTING, IN PART, THE CREDIT OF INFANTS AND OF GENERATIONS YET
UNBORN, AND SOME RESTRICTION ON SUCH COMMITMENT IS NOT AN UNREASONABLE
DEMAND.  THAT THE BOND ISSUE MAY HAVE THE DESIRABLE OBJECTIVE OF
PROVIDING BETTER EDUCATION FOR FUTURE GENERATIONS GOES TO THE WISDOM OF
AN INDEBTEDNESS LIMITATION:  IT DOES NOT ALTER THE BASIC FACT THAT THE
BALANCING OF INTERESTS IS ONE FOR THE STATE TO RESOLVE. 

WISELY OR NOT, THE PEOPLE OF THE STATE OF WEST VIRGINIA HAVE LONG
SINCE RESOLVED TO REMOVE FROM A SIMPLE MAJORITY VOTE THE CHOICE ON
CERTAIN DECISIONS AS TO WHAT INDEBTEDNESS MAY BE INCURRED AND WHAT
TAXES THEIR CHILDREN WILL BEAR. 

WE CONCLUDE THAT SO LONG AS SUCH PROVISIONS DO NOT DISCRIMINATE
AGAINST OR AUTHORIZE DISCRIMINATION AGAINST ANY IDENTIFIABLE CLASS THEY
DO NOT VIOLATE THE EQUAL PROTECTION CLAUSE.  /3/  WE SEE NO MEANINGFUL
DISTINCTION BETWEEN SUCH ABSOLUTE PROVISIONS ON DEBT, CHANGEABLE ONLY
BY CONSTITUTIONAL AMENDMENT, AND PROVISIONS THAT LEGISLATIVE DECISIONS
ON THE SAME ISSUES REQUIRE MORE THAN A MAJORITY VOTE IN THE
LEGISLATURE.  ON THE CONTRARY, THESE LATTER PROVISIONS MAY, IN
PRACTICE, BE LESS BURDENSOME THAN THE AMENDMENT PROCESS.  /4/
MOREOVER, THE SAME CONSIDERATIONS APPLY WHEN THE ULTIMATE POWER, RATHER
THAN BEING DELEGATED TO THE LEGISLATURE, REMAINS WITH THE PEOPLE, BY
WAY OF A REFERENDUM.  INDEED, WE SEE NO CONSTITUTIONAL DISTINCTION
BETWEEN THE 60% REQUIREMENT IN THE PRESENT CASE AND A STATE REQUIREMENT
THAT A GIVEN ISSUE BE APPROVED BY A MAJORITY OF ALL REGISTERED VOTERS. 
/5/  CF. CLAY V. THORNTON, 253 S.C. 209, 169 S.E.2D 617 (1969), APPEAL
DISMISSED SUB NOM. TURNER V. CLAY, 397 U.S. 39 (1970). 

THAT WEST VIRGINIA HAS ADOPTED A RULE OF DECISION, APPLICABLE TO ALL
BOND REFERENDA, BY WHICH THE STRONG CONSENSUS OF THREE-FIFTHS IS
REQUIRED BEFORE INDEBTEDNESS IS AUTHORIZED, DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE OR ANY OTHER PROVISION OF THE CONSTITUTION.  /6/

              REVERSED. 

/1/  WHILE CIPRIANO INVOLVED A DENIAL OF THE VOTE, A PERCENTAGE
REDUCTION OF AN INDIVIDUAL'S VOTING POWER IN PROPORTION TO THE AMOUNT
OF PROPERTY HE OWNED WOULD BE SIMILARLY DEFECTIVE.  SEE STEWART V.
PARISH SCHOOL BOARD, 310 F.SUPP.  1172 (ED LA.), AFF'D, 400 U.S. 884,
(1970). 

/2/  E.G., INDIANA CONSTITUTION, ART.10, SEC. 5; OHIO CONSTITUTION,
ART. 8, SEC. 3; TEXAS CONSTITUTION, ART. 3, SEC. 49; WISCONSIN
CONSTITUTION, ART. 8, SEC. 4. 

/3/  COMPARE REITMAN V. MULKEY, 387 U.S. 369 (1967). 

/4/  SOME 14 STATES REQUIRE AN AMENDMENT TO BE APPROVED BY TWO
SESSIONS OF THE LEGISLATURE, BEFORE SUBMISSION TO THE PEOPLE.  WEST
VIRGINIA'A CONSTITUTION, ART. 14, SEC. 2, PROVIDES FOR APPROVAL BY TWO
THIRDS OF A SINGLE LEGISLATURE AND A MAJORITY OF THE VOTERS. 

/5/  IN PRACTICE, THE LATTER REQUIREMENT WOULD BE FAR MORE
BURDENSOME THAN A 60% REQUIREMENT.  THERE WERE 8,913 REGISTERED VOTERS
IN ROANE COUNTY IN 1968, OF WHOM 5,600 VOTED IN THE REFERENDUM AT
ISSUE.  IF A MAJORITY OF ALL ELIGIBLE VOTERS HAD BEEN REQUIRED,
APPROVAL WOULD HAVE REQUIRED THE AFFIRMATIVE VOTES OF OVER 79% OF THOSE
VOTING.  SEE STATE OF WEST VIRGINIA, OFFICIAL RETURNS OF 1970 PRIMARY
ELECTION (INCLUDING THE 1968 REGISTRATION FIGURES). 

/6/  WE INTIMATE NO VIEW ON THE CONSTITUTIONALITY OF A PROVISION
REQUIRING UNANIMITY OR GIVING A VETO POWER TO A VERY SMALL GROUP.  NOR
DO WE DECIDE WHETHER A STATE MAY, CONSISTENTLY WITH THE CONSTITUTION,
REQUIRE EXTRAORDINARY MAJORITIES FOR THE ELECTION OF PUBLIC OFFICERS. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT FOR THE REASONS STATED IN
HIS SEPARATE OPINION IN WHITCOMB V. CHAVIS, POST, P.165. 

MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL WOULD AFFIRM FOR THE
REASONS EXPRESSED IN THE OPINION OF THE WEST VIRGINIA SUPREME COURT OF
APPEALS, 153 W.VA. 559, 170 S.E.2D 783 (1969). 

GEORGE M. SCOTT ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

CHARLES C. WISE, JR., ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS J. HENRY FRANCIS, JR. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SLADE GORTON,
ATTORNEY GENERAL OF WASHINGTON, AND PHILIP H. AUSTIN, ASSISTANT
ATTORNEY GENERAL, FOR THE STATE OF WASHINGTON ET AL.; BY THOMAS M.
O'CONNOR FOR THE CITY AND COUNTY OF SAN FRANCISCO; BY FRANCIS R.
KIRKHAM AND FRANCIS N. MARSHALL FOR THE CALIFORNIA TAXPAYERS'
ASSOCIATION; AND BY GEORGE E. SVOBODA FOR HAYES SMITH. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JAMES R.
ELLIS FOR SEATTLE SCHOOL DISTRICT NO. 1; BY STEPHEN J. POLLAK, WILLIAM
H. DEMPSEY, JR., RALPH J. MOORE, JR., AND ROBERT H. CHANIN FOR THE
NATIONAL EDUCATION ASSOCIATION ET AL.; BY AUGUST W. STEINHILBER AND
ROBERT G. DIXON, JR., FOR THE NATIONAL SCHOOL BOARDS ASSOCIATION; BY
DAVID R. HARDY AND ROBERT E. NORTHRUP FOR THE MISSOURI STATE TEACHERS
ASSOCIATION; BY WILLIAM B. BEEBE, HERSHEL SHANKS, AND ALLAN I.
MENDELSOHN FOR THE AMERICAN ASSOCIATION OF SCHOOL ADMINISTRATORS ET
AL.; BY MELVIN L. WULF FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL.;
AND BY PAUL W. PREISLER FOR THE COMMITTEE FOR THE EQUAL WEIGHTING OF
VOTES. 

BRIEFS OF AMICI CURIAE WERE FILED BY JOHN W. WITT AND JOSEPH KASE,
JR., FOR THE CITY OF SAN DIEGO ET AL., AND BY CHAS. CLAFIN ALLEN, PRO
SE.
..END :





















UTAH V. UNITED STATES, 403 U.S. 9 


       UTAH V. UNITED STATES

        ON BILL OF COMPLAINT

        NO. 31, ORIG.  ARGUED APRIL 26, 1971-- DECIDED JUNE 7,
1971 


IN THIS SUIT INVOLVING CONFLICTING CLAIMS BETWEEN UTAH AND THE UNITED
STATES TO THE SHORELANDS AROUND THE GREAT SALT LAKE THE SPECIAL
MASTER'S REPORT, FINDING THAT AT THE DATE OF UTAH'S ADMISSION TO THE
UNION THE LAKE WAS NAVIGABLE AND THAT THE LAKE BED PASSED TO UTAH AT
THAT TIME, IS SUPPORTED BY ADEQUATE EVIDENCE AND IS APPROVED BY THE
COURT.  THE PARTIES ARE INVITED TO ADDRESS THEMSELVES TO THE DECREE
SUBMITTED WITH THE REPORT WITH A VIEW TO AGREEING, IF POSSIBLE, UPON
THE ISSUES THAT HAVE NOW BEEN SETTLED.  PP. 9-13. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT MARSHALL, J., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS INITIATED BY UTAH TO RESOLVE A DISPUTE BETWEEN IT AND
THE UNITED STATES AS TO SHORELANDS AROUND THE GREAT SALT LAKE.  UTAH'S
CLAIM TO THE LANDS IS PREMISED ON THE NAVIGABILITY OF THE LAKE AT THE
DATE OF STATEHOOD, VIZ., JANUARY 4, 1896.  IF INDEED THE LAKE WERE
NAVIGABLE AT THAT TIME, THE CLAIM OF UTAH WOULD OVERRIDE ANY CLAIM OF
THE UNITED STATES, WITH THE POSSIBLE EXCEPTION OF A CLAIM BASED ON THE
DOCTRINE OF RELICTION, NOT NOW BEFORE US. 

THE OPERATION OF THE "EQUAL FOOTING" PRINCIPLE HAS ACCORDED NEWLY
ADMITTED STATES THE SAME PROPERTY INTERESTS IN SUBMERGED LANDS AS WAS
ENJOYED BY THE THIRTEEN ORIGINAL STATES AS SUCCESSORS TO THE BRITISH
CROWN.  POLLARD'S LESSEE V. HAGAN, 3 HOW.  212, 222-223, 228-230.  THAT
MEANS THAT UTAH'S CLAIM TO THE ORIGINAL BED OF THE GREAT SALT LAKE--
WHETHER NOW SUBMERGED OR EXPOSED-- ULTIMATELY RESTS ON WHETHER THE LAKE
WAS NAVIGABLE (MARTIN V. WADDELL, 16 PET. 367, 410, 416-417) AT THE
TIME OF UTAH'S ADMISSION.  SHIVELY V. BOWLBY, 152 U.S. 1, 26-28.  IT
WAS TO THAT ISSUE THAT WE DIRECTED THE SPECIAL MASTER, HON. J. CULLEN
GANEY, TO ADDRESS HIMSELF.  SEE UTAH V. UNITED STATES, 394 U.S. 89.  IN
THE PRESENT REPORT THE SPECIAL MASTER FOUND THAT AT THE TIME IN
QUESTION THE GREAT SALT LAKE WAS NAVIGABLE.  WE APPROVE THAT FINDING. 

THE QUESTION OF NAVIGABILITY IS A FEDERAL QUESTION.  THE DANIEL
BALL, 10 WALL.  557, 563.  MOREOVER, THE FACT THAT THE GREAT SALT LAKE
IS NOT PART OF A NAVIGABLE INTERSTATE OR INTERNATIONAL COMMERCIAL
HIGHWAY IN NO WAY INTEREFERES WITH THE PRINCIPLE OF PUBLIC OWNERSHIP OF
ITS BED.  UNITED STATES V. UTAH, 283 U.S. 64, 75; UNITED STATES V.
OREGON, 295 U.S. 1, 14.  THE TEST OF NAVIGABILITY OF WATERS WAS STATED
IN THE DANIEL BALL, SUPRA, AT 563: 

"THOSE RIVERS MUST BE REGARDED AS PUBLIC NAVIGABLE RIVERS IN LAW
WHICH ARE NAVIGABLE IN FACT.  AND THEY ARE NAVIGABLE IN FACT WHEN THEY
ARE USED, OR ARE SUSCEPTIBLE OF BEING USED, IN THEIR ORDINARY
CONDITION, AS HIGHWAYS FOR COMMERCE, OVER WHICH TRADE AND TRAVEL ARE OR
MAY BE CONDUCTED IN THE CUSTOMARY MODES OF TRADE AND TRAVEL ON WATER .
. . ." 

WHILE THAT STATEMENT WAS ADDRESSED TO THE NAVIGABILITY OF "RIVERS"
IT APPLIES TO ALL WATER COURSES.  UNITED STATES V. OREGON, SUPRA, AT
14. 

THE UNITED STATES STRONGLY CONTESTS THE FINDING OF THE SPECIAL
MASTER THAT THE GREAT SALT LAKE WAS NAVIGABLE.  ALTHOUGH THE EVIDENCE
IS NOT EXTENSIVE, WE THINK IT IS SUFFICIENT TO SUSTAIN THE FINDINGS. 
THERE WERE, FOR EXAMPLE, NINE BOATS USED FROM TIME TO TIME TO HAUL
CATTLE AND SHEEP FROM THE MAINLAND TO ONE OF THE ISLANDS OR FROM ONE OF
THE ISLANDS TO THE MAINLAND.  THE HAULING APPARENTLY WAS DONE BY THE
OWNERS OF THE LIVESTOCK, NOT BY A CARRIER FOR THE PURPOSE OF MAKING
MONEY.  HENCE IT IS SUGGESTED THAT THIS WAS NOT THE USE OF THE LAKE AS
A NAVIGABLE HIGHWAY IN THE CUSTOMARY SENSE OF THE WORD.  THAT IS TO
SAY, THE BUSINESS OF THE BOATS WAS RANCHING AND NOT CARRYING WATER
BORNE FREIGHT.  WE THINK THAT IS AN IRRELEVANT DETAIL.  THE LAKE WAS
USED AS A HIGHWAY AND THAT IS THE GIST OF THE FEDERAL TEST. 

IT IS SUGGESTED THAT THE CARRIAGE WAS ALSO LIMITED IN THE SENSE OF
SERVING ONLY THE FEW PEOPLE WHO PERFORMED RANCHING OPERATIONS ALONG THE
SHORES OF THE LAKE.  BUT THAT AGAIN DOES NOT DETRACT FROM THE BASIC
FINDING THAT THE LAKE SERVED AS A HIGHWAY AND IT IS THAT FEATURE THAT
DISTINGUISHES BETWEEN NAVIGABILITY AND NON-NAVIGABILITY. 

THERE WAS, IN ADDITION TO THE BOATS USED BY RANCHERS, ONE BOAT USED
BY AN OUTSIDER WHO CARRIED SHEEP TO AN ISLAND FOR THE OWNERS OF THE
SHEEP.  IT IS SAID THAT ONE SHEEP BOAT FOR HIRE DOES NOT MAKE AN ARTERY
FOR COMMERCE; BUT ONE SHEEP BOAT FOR HIRE IS IN KEEPING WITH THE THEME
OF ACTUAL NAVIGABILITY OF THE WATERS OF THE LAKE IN EARLIER YEARS. 

THERE WAS, IN ADDITION, A BOAT KNOWN AS THE CITY OF CORINNE WHICH
WAS LAUNCHED IN MAY 1871 FOR THE PURPOSE OF CARRYING PASSENGERS AND
FREIGHT; BUT ITS LIFE IN THAT CAPACITY APPARENTLY LASTED LESS THAN A
YEAR.  IN 1872 IT WAS CONVERTED INTO AN EXCURSION BOAT WHICH APPARENTLY
PLIED THE WATERS OF THE LAKE UNTIL 1881.  THERE ARE OTHER BOATS THAT
HAULED SHEEP TO AND FROM AN ISLAND IN THE LAKE AND ALSO HAULED ORE, AND
SALT, AND CEDAR POSTS.  STILL ANOTHER BOAT WAS USED TO CARRY SALT FROM
VARIOUS SALT WORKS AROUND THE LAKE TO A RAILROAD CONNECTION. 

THE UNITED STATES SAYS THE TRADE CONDUCTED BY THESE VARIOUS VESSELS
WAS SPORADIC AND THEIR CAREERS WERE SHORT.  IT IS TRUE THAT MOST OF THE
TRAFFIC WHICH WE HAVE MENTIONED TOOK PLACE IN THE 1880'S, WHILE UTAH
BECAME A STATE IN 1896.  MOREOVER, IT IS SAID THAT THE LEVEL OF THE
LAKE HAD SO CHANGED BY 1896 THAT NAVIGATION WAS NOT PRACTICAL.  THE
MASTER'S REPORT EFFECTIVELY REFUTES THAT CONTENTION.  IT SAYS THAT ON
JANUARY 4, 1896, THE LAKE WAS 30.2 FEET DEEP.  HE FINDS THAT ON THAT
DATE "THE LAKE WAS PHYSICALLY CAPABLE OF BEING USED IN ITS ORDINARY
CONDITION AS A HIGHWAY FOR FLOATING AND AFFORDING PASSAGE TO WATER
CRAFT IN THE MANNER OVER WHICH TRADE AND TRAVEL WAS OR MIGHT BE
CONDUCTED IN THE CUSTOMARY MODES OF TRAVEL ON WATER AT THAT TIME."  HE
FOUND THAT THE LAKE ON JANUARY 4, 1896, "COULD HAVE FLOATED AND
AFFORDED PASSAGE TO LARGE BOATS, BARGES AND SIMILAR CRAFT CURRENTLY IN
GENERAL USE ON INLAND NAVIGABLE BODIES OF WATER IN THE UNITED STATES." 
HE FOUND THAT THE AREAS OF THE LAKE THAT HAD A DEPTH SUFFICIENT FOR
NAVIGATION "WERE SEVERAL MILES WIDE, EXTENDING SUBSTANTIALLY THROUGH
THE LENGTH AND WIDTH OF THE LAKE." 

MOST OF THE HISTORY OF ACTUAL WATER TRANSPORTATION, TO BE SURE, TOOK
PLACE ON THE LAKE IN THE 1880'S, YET THE FINDINGS OF THE MASTER ARE
THAT THE WATER CONDITIONS WHICH OBTAINED ON JANUARY 4, 1896, STILL
PERMITTED NAVIGATION AT THAT TIME. 

IN SUM, IT IS CLEAR THAT UTAH IS ENTITLED TO THE DECREE FOR WHICH IT
ASKS.  THE SPECIAL MASTER HAS SUBMITTED WITH HIS REPORT A PROPOSED
DECREE WHICH WE ATTACH AS AN APPENDIX TO THIS OPINION.  WE INVITE THE
PARTIES TO ADDRESS THEMSELVES TO THAT DECREE WITH THE VIEW OF AGREEING,
IF POSSIBLE, UPON THE ISSUES WHICH HAVE NOW BEEN SETTLED BY THIS
LITIGATION. 

              SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

     APPENDIX TO OPINION OF THE COURT 

IT IS ORDERED, ADJUDGED AND DECREED THAT: 

1.  THE UNITED STATES OF AMERICA, ITS DEPARTMENTS AND AGENCIES, ARE
ENJOINED, SUBJECT TO ANY REGULATIONS WHICH THE CONGRESS MAY IMPOSE IN
THE INTEREST OF NAVIGATION OR POLLUTION CONTROL, FROM ASSERTING AGAINST
THE STATE OF UTAH ANY CLAIM OF RIGHT, TITLE AND INTEREST: 

(A) TO THE BED OF THE GREAT SALT LAKE LYING BELOW THE MEANDER LINE
OF GREAT SALT LAKE AS DULY SURVEYED HERETOFORE OR IN ACCORDANCE WITH
OF ANY LANDS WITHIN THE BEAR RIVER MIGRATORY BIRD REFUGE AND THE WEBER
BASIN FEDERAL RECLAMATION PROJECT, 

(B) TO THE NATURAL RESOURCES AND LIVING ORGANISMS IN OR BENEATH THE
BED OF THE GREAT SALT LAKE AS DELINEATED IN (A) ABOVE, AND 

(C) TO THE NATURAL RESOURCES AND LIVING ORGANISMS EITHER WITHIN THE
WATERS OF THE GREAT SALT LAKE, OR EXTRACTED THEREFROM, LYING BELOW THE
MEANDER LINE OF THE GREAT SALT LAKE, AS DELINEATED IN (A) ABOVE, EXCEPT
BRINE AND MINERALS IN SOLUTION IN THE BRINE OR PRECIPITATED OR
EXTRACTED THEREFROM IN WHATEVER FEDERAL LANDS THERE MAY BE BELOW SAID
MEANDER LINE, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE, AND REMOVE
THE SAME, AS SET FORTH IN SECTION 3 OF THE ACT OF JUNE 3, 1966, 80
STAT. 192. 

2.  THE STATE OF UTAH IS NOT REQUIRED TO PAY THE UNITED STATES,
THROUGH THE SECRETARY OF THE INTERIOR, FOR THE LANDS, INCLUDING ANY
MINERALS, LYING BELOW THE MEANDER LINE OF THE GREAT SALT LAKE, AS
DELINEATED IN 1(A), ABOVE, OF THIS DECREE. 

3.  THE PRAYER OF THE UNITED STATES OF AMERICA IN ITS ANSWER TO THE
STATE OF UTAH'S COMPLAINT THAT THIS COURT "CONFIRM, DECLARE AND
ESTABLISH THAT THE UNITED STATES IS THE OWNER OF ALL RIGHT, TITLE AND
INTEREST IN ALL THE LANDS DESCRIBED IN SECTION 2 OF THE ACT OF JUNE 3,
1966, 80 STAT. 192, AS AMENDED BY THE ACT OF AUGUST 23, 1966, 80 STAT.
349, AND THAT THE STATE OF UTAH IS WITHOUT ANY RIGHT, TITLE OR INTEREST
IN SUCH LANDS, SAVE FOR THE RIGHT TO HAVE THESE LANDS CONVEYED TO IT BY
THE UNITED STATES, AND TO PAY FOR THEM, IN ACCORDANCE WITH THE
PROVISIONS OF THE ACT OF JUNE 3, 1966, AS AMENDED," IS DENIED. 

              RESPECTFULLY SUBMITTED,

              J. CULLEN GANEY,

   SENIOR CIRCUIT JUDGE, SPECIAL MASTER 

DALLIN W. JENSEN, ASSISTANT ATTORNEY GENERAL OF UTAH, ARGUED FOR
PLAINTIFF IN SUPPORT OF THE REPORT OF THE SPECIAL MASTER.  WITH HIM ON
THE BRIEFS WERE VERNON B. ROMNEY, ATTORNEY GENERAL, ROBERT B. HANSEN,
DEPUTY ATTORNEY GENERAL, PAUL E. REIMANN, ASSISTANT ATTORNEY GENERAL,
AND CLIFFORD L. ASHTON AND EDWARD W. CLYDE, SPECIAL ASSISTANT ATTORNEYS
GENERAL. 

PETER L. STRAUSS ARGUED FOR THE UNITED STATES ON EXCEPTIONS TO THE
REPORT OF THE SPECIAL MASTER.  ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL KASHIWA, LOUIS F. CLAIBORNE, AND
MARTIN GREEN. 
..END :













COHEN V. CALIFORNIA, 403 U.S. 15 


       COHEN V.CALIFORNIA

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT

        NO. 299.  ARGUED FEBRUARY 22, 1971-- DECIDED JUNE 7, 1971 


APPELLANT WAS CONVICTED OF VIOLATING THAT PART OF CAL. PENAL CODE
SEC. 415 WHICH PROHIBITS "MALICIOUSLY AND WILLFULLY DISTURBING) THE
PEACE OR QUIET OF ANY NEIGHBORHOOD OR PERSON . . . BY . . .OFFENSIVE
CONDUCT," FOR WEARING A JACKET BEARING THE WORDS "FUCK THE DRAFT" IN A
CORRIDOR OF THE LOS ANGELES COURTHOUSE.  THE COURT OF APPEAL HELD THAT
"OFFENSIVE CONDUCT" MEANS "BEHAVIOR WHICH HAS A TENDENCY TO PROVOKE
OTHERS TO ACTS OF VIOLENCE OR TO IN TURN DISTURB THE PEACE," AND
AFFIRMED THE CONVICTION.  HELD:  ABSENT A MORE PARTICULARIZED AND
COMPELLING REASON FOR ITS ACTIONS, THE STATE MAY NOT, CONSISTENTLY WITH
THE FIRST AND FOURTEENTH AMENDMENTS, MAKE THE SIMPLE PUBLIC DISPLAY OF
THIS SINGLE FOUR-LETTER EXPLETIVE A CRIMINAL OFFENSE.  PP. 22-26. 

1 CAL.APP.3D 94, 81 CAL.RPTR.  503, REVERSED. 

HARLAN, J., DELIVERED THEOPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, STEWART, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C.J., AND BLACK, J., JOINED, AND
IN WHICH WHITE, J., JOINED IN PART, POST, P. 27. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE MAY SEEM AT FIRST BLUSH TOO INCONSEQUENTIAL TO FIND ITS WAY
INTO OUR BOOKS, BUT THE ISSUE IT PRESENTS IS OF NO SMALL CONSTITUTIONAL
SIGNIFICANCE. 

APPELLANT PAUL ROBERT COHEN WAS CONVICTED IN THE LOS ANGELES
MUNICIPAL COURT OF VIOLATING THAT PART OF CALIFORNIA PENAL CODE SEC.
415 WHICH PROHIBITS "MALICIOUSLY AND WILLFULLY DISTURBING) THE PEACE OR
QUIET OF ANY NEIGHBORHOOD OR PERSON . . . BY . . .OFFENSIVE CONDUCT . .
."  /1/  HE WAS GIVEN 30 DAYS' IMPRISONMENT.  THE FACTS UPON WHICH HIS
CONVICTION RESTS ARE DETAILED IN THE OPINION OF THE COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT, AS FOLLOWS: 

    "ON APRIL 26, 1968, THE DEFENDANT WAS OBSERVED IN THE LOS

  ANGELES COUNTY COURTHOUSE IN THE CORRIDOR OUTSIDE OF DIVISION 20

  OF THE MUNICIPAL COURT WEARING A JACKET BEARING THE WORDS 'FUCK

  THE DRAFT' WHICH WERE PLAINLY VISIBLE.  THERE WERE WOMEN AND

  CHILDREN PRESENT IN THE CORRIDOR.  THE DEFENDANT WAS ARRESTED. 

  THE DEFENDANT TESTIFIED THAT HE WORE THE JACKET KNOWING THAT THE

  WORDS WERE ON THE JACKET AS A MEANS OF INFORMING THE PUBLIC OF

  THE DEPTH OF HIS FEELINGS AGAINST THE VIETNAM WAR AND THE DRAFT. 

   "THE DEFENDANT DID NOT ENGAGE IN, NOR THREATEN TO ENGAGE IN,

  NOR DID ANYONE AS THE RESULT OF HIS CONDUCT IN FACT COMMIT OR

  THREATEN TO COMMIT ANY ACT OF VIOLENCE.  THE DEFENDANT DID NOT

  MAKE ANY LOUD OR UNUSUAL NOISE, NOR WAS THERE ANY EVIDENCE THAT

  HE UTTERED ANY SOUND PRIOR TO HIS ARREST."  1 CAL.APP.3D 94,

  97-98, 81 CAL.RPTR.  503, 505 (1969). 

IN AFFIRMING THE CONVICTION THE COURT OF APPEAL HELD THAT "OFFENSIVE
CONDUCT" MEANS "BEHAVIOR WHICH HAS A TENDENCY TO PROVOKE OTHERS TO ACTS
OF VIOLENCE OR TO IN TURN DISTURB THE PEACE," AND THAT THE STATE HAD
PROVED THIS ELEMENT BECAUSE, ON THE FACTS OF THIS CASE, "(IT WAS
CERTAINLY REASONABLY FORESEEABLE THAT SUCH CONDUCT MIGHT CAUSE OTHERS
TO RISE UP TO COMMIT A VIOLENT ACT AGAINST THE PERSON OF THE DEFENDANT
OR ATTEMPT TO FORCEABLY REMOVE HIS JACKET."  1 CAL.APP.3D, AT 99-100,
81 CAL.RPTR.,AT 506.  THE CALIFORNIA SUPREME COURT DECLINED REVIEW BY A
DIVIDED VOTE.  /2/  WE BROUGHT THE CASE HERE, POSTPONING THE
CONSIDERATION OF THE QUESTION OF OUR JURISDICTION OVER THIS APPEAL TO A
HEARING OF THE CASE ON THE MERITS.  399 U.S. 904.  WE NOW REVERSE. 

THE QUESTION OF OUR JURISDICTION NEED NOT DETAIN US LONG. 
THROUGHOUT THE PROCEEDINGS BELOW, COHEN CONSISTENTLY CLAIMED THAT, AS
CONSTRUED TO APPLY TO THE FACTS OF THIS CASE, THE STATUTE INFRINGED HIS
RIGHTS TO FREEDOM OF EXPRESSION GUARANTEED BY THE FIRST AND FOURTEENTH
AMENDMENTS OF THE FEDERAL CONSTITUTION.  THAT CONTENTION HAS BEEN
REJECTED BY THE HIGHEST CALIFORNIA STATE COURT IN WHICH REVIEW COULD BE
HAD.  ACCORDINGLY, WE ARE FULLY SATISFIED THAT COHEN HAS PROPERLY
INVOKED OUR JURISDICTION BY THIS APPEAL.  28 U.S.C. 1257(2); DAHNKE
WALKER MILLING CO. V. BONDURANT, 257 U.S. 282 (1921). 

   I 

IN ORDER TO LAY HANDS ON THE PRECISE ISSUE WHICH THIS CASE INVOLVES,
IT IS USEFUL FIRST TO CANVASS VARIOUS MATTERS WHICH THIS RECORD DOES
NOT PRESENT. 

THE CONVICTION QUITE CLEARLY RESTS UPON THE ASSERTED OFFENSIVENESS
OF THE WORDS COHEN USED TO CONVEY HIS MESSAGE TO THE PUBLIC.  THE ONLY
"CONDUCT" WHICH THE STATE SOUGHT TO PUNISH IS THE FACT OF
COMMUNICATION.  THUS, WE DEAL HERE WITH A CONVICTION RESTING SOLELY
UPON "SPEECH," CF. STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931), NOT
UPON ANY SEPARATELY IDENTIFIABLE CONDUCT WHICH ALLEGEDLY WAS INTENDED
BY COHEN TO BE PERCEIVED BY OTHERS AS EXPRESSIVE OF PARTICULAR VIEWS
BUT WHICH, ON ITS FACE, DOES NOT NECESSARILY CONVEY ANY MESSAGE AND
HENCE ARGUABLY COULD BE REGULATED WITHOUT EFFECTIVELY REPRESSING
COHEN'S ABILITY TO EXPRESS HIMSELF.  CF. UNITED STATES V. O'BRIEN, 391
U.S. 367 (1968).  FURTHER, THE STATE CERTAINLY LACKS POWER TO PUNISH
COHEN FOR THE UNDERLYING CONTENT OF THE MESSAGE THE INSCRIPTION
CONVEYED.  AT LEAST SO LONG AS THERE IS NO SHOWING OF AN INTENT TO
INCITE DISOBEDIENCE TO OR DISRUPTION OF THE DRAFT, COHEN COULD NOT,
CONSISTENTLY WITH THE FIRST AND FOURTEENTH AMENDMENTS, BE PUNISHED FOR
ASSERTING THE EVIDENT POSITION ON THE INUTILITY OR IMMORALITY OF THE
DRAFT HIS JACKET REFLECTED.  YATES V. UNITED STATES, 354 U.S. 298
(1957). 

APPELLANT'S CONVICTION, THEN, RESTS SQUARELY UPON HIS EXERCISE OF
THE "FREEDOM OF SPEECH" PROTECTED FROM ARBITRARY GOVERNMENTAL
INTERFERENCE BY THE CONSTITUTION AND CAN BE JUSTIFIED, IF AT ALL, ONLY
AS A VALID REGULATION OF THE MANNER IN WHICH HE EXERCISED THAT FREEDOM,
NOT AS A PERMISSIBLE PROHIBITION ON THE SUBSTANTIVE MESSAGE IT
CONVEYS.  THIS DOES NOT END THE INQUIRY, OF COURSE, FOR THE FIRST AND
FOURTEENTH AMENDMENTS HAVE NEVER BEEN THOUGHT TO GIVE ABSOLUTE
PROTECTION TO EVERY INDIVIDUAL TO SPEAK WHENEVER OR WHEREVER HE
PLEASES, OR TO USE ANY FORM OF ADDRESS IN ANY CIRCUMSTANCES THAT HE
CHOOSES.  IN THIS VEIN, TOO, HOWEVER, WE THINK IT IMPORTANT TO NOTE
THAT SEVERAL ISSUES TYPICALLY ASSOCIATED WITH SUCH PROBLEMS ARE NOT
PRESENTED HERE. 

IN THE FIRST PLACE, COHEN WAS TRIED UNDER A STATUTE APPLICABLE
THROUGHOUT THE ENTIRE STATE.  ANY ATTEMPT TO SUPPORT THIS CONVICTION ON
THE GROUND THAT THE STATUTE SEEKS TO PRESERVE AN APPROPRIATELY DECOROUS
ATMOSPHERE IN THE COURTHOUSE WHERE COHEN WAS ARRESTED MUST FAIL IN THE
ABSENCE OF ANY LANGUAGE IN THE STATUTE THAT WOULD HAVE PUT APPELLANT ON
NOTICE THAT CERTAIN KINDS OF OTHERWISE PERMISSIBLE SPEECH OR CONDUCT
WOULD NEVERTHELESS, UNDER CALIFORNIA LAW, NOT BE TOLERATED IN CERTAIN
PLACES.  SEE EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 236-237, AND N.
11 (1963).  CF. ADDERLEY V. FLORIDA, 385 U.S. 39 (1966).  NO FAIR
READING OF THE PHRASE "OFFENSIVE CONDUCT" CAN BE SAID SUFFICIENTLY TO
INFORM THE ORDINARY PERSON THAT DISTINCTIONS BETWEEN CERTAIN LOCATIONS
ARE THEREBY CREATED.  /3/ 

IN THE SECOND PLACE, AS IT COMES TO US, THIS CASE CANNOT BE SAID TO
FALL WITHIN THOSE RELATIVELY FEW CATEGORIES OF INSTANCES WHERE PRIOR
DECISIONS HAVE ESTABLISHED THE POWER OF GOVERNMENT TO DEAL MORE
COMPREHENSIVELY WITH CERTAIN FORMS OF INDIVIDUAL EXPRESSION SIMPLY UPON
A SHOWING THAT SUCH A FORM WAS EMPLOYED.  THIS IS NOT, FOR EXAMPLE, AN
OBSCENITY CASE.  WHATEVER ELSE MAY BE NECESSARY TO GIVE RISE TO THE
STATES' BROADER POWER TO PROHIBIT OBSCENE EXPRESSION, SUCH EXPRESSION
MUST BE, IN SOME SIGNIFICANT WAY, EROTIC.  ROTH V. UNITED STATES, 354
U.S. 476 (1957).  IT CANNOT PLAUSIBLY BE MAINTAINED THAT THIS VULGAR
ALLUSION TO THE SELECTIVE SERVICE SYSTEM WOULD CONJURE UP SUCH PSYCHIC
STIMULATION IN ANYONE LIKELY TO BE CONFRONTED WITH COHEN'S CRUDELY
DEFACED JACKET. 

THIS COURT HAS ALSO HELD THAT THE STATES ARE FREE TO BAN THE SIMPLE
USE, WITHOUT A DEMONSTRATION OF ADDITIONAL JUSTIFYING CIRCUMSTANCES, OF
SO-CALLED . "FIGHTING WORDS," THOSE PERSONALLY ABUSIVE EPITHETS WHICH,
WHEN ADDRESSED TO THE ORDINARY CITIZEN, ARE, AS A MATTER OF COMMON
KNOWLEDGE, INHERENTLY LIKELY TO PROVOKE VIOLENT REACTION.  CHAPLINSKY
V. NEW HAMPSHIRE, 315 U.S. 568 (1942).  WHILE THE FOUR-LETTER WORD
DISPLAYED BY COHEN IN RELATION TO THE DRAFT IS NOT UNCOMMONLY EMPLOYED
IN A PERSONALLY PROVOCATIVE FASHION, IN THIS INSTANCE IT WAS CLEARLY
NOT "DIRECTED TO THE PERSON OF THE HEARER."  CANTWELL V. CONNECTICUT,
310 U.S. 296, 309 (1940).  NO INDIVIDUAL ACTUALLY OR LIKELY TO BE
PRESENT COULD REASONABLY HAVE REGARDED THE WORDS ON APPELLANT'S JACKET
AS A DIRECT PERSONAL INSULT.  NOR DO WE HAVE HERE AN INSTANCE OF THE
EXERCISE OF THE STATE'S POLICE POWER TO PREVENT A SPEAKER FROM
INTENTIONALLY PROVOKING A GIVEN GROUP TO HOSTILE REACTION.  CF. FEINER
V. NEW YORK, 340 U.S. 315 (1951); TERMINIELLO V. CHICAGO, 337 U.S. 1
(1949).  THERE IS, AS NOTED ABOVE, NO SHOWING THAT ANYONE WHO SAW COHEN
WAS IN FACT VIOLENTLY AROUSED OR THAT APPELLANT INTENDED SUCH A
RESULT. 

FINALLY, IN ARGUMENTS BEFORE THIS COURT MUCH HAS BEEN MADE OF THE
CLAIM THAT COHEN'S DISTASTEFUL MODE OF EXPRESSION WAS THRUST UPON
UNWILLING OR UNSUSPECTING VIEWERS, AND THAT THE STATE MIGHT THEREFORE
LEGITIMATELY ACT AS IT DID IN ORDER TO PROTECT THE SENSITIVE FROM
OTHERWISE UNAVOIDABLE EXPOSURE TO APPELLANT'S CRUDE FORM OF PROTEST. 
OF COURSE, THE MERE PRESUMED PRESENCE OF UNWITTING LISTENERS OR VIEWERS
DOES NOT SERVE AUTOMATICALLY TO JUSTIFY CURTAILING ALL SPEECH CAPABLE
OF GIVING OFFENSE.  SEE, E.G., ORGANIZATION FOR A BETTER AUSTIN V.
KEEFE, 402 U.S. 415 (1971).  WHILE THIS COURT HAS RECOGNIZED THAT
GOVERNMENT MAY PROPERLY ACT IN MANY SITUATIONS TO PROHIBIT INTRUSION
INTO THE PRIVACY OF THE HOME OF UNWELCOME VIEWS AND IDEAS WHICH CANNOT
BE TOTALLY BANNED FROM THE PUBLIC DIALOGUE, E.G., ROWAN V. POST OFFICE
DEPT., 397 U.S. 728 (1970), WE HAVE AT THE SAME TIME CONSISTENTLY
STRESSED THAT "WE ARE OFTEN 'CAPTIVES' OUTSIDE THE SANCTUARY OF THE
HOME AND SUBJECT TO OBJECTIONABLE SPEECH."  ID., AT 738.  THE ABILITY
OF GOVERNMENT, CONSONANT WITH THE CONSTITUTION, TO SHUT OFF DISCOURSE
SOLELY TO PROTECT OTHERS FROM HEARING IT IS, IN OTHER WORDS, DEPENDENT
UPON A SHOWING THAT SUBSTANTIAL PRIVACY INTERESTS ARE BEING INVADED IN
AN ESSENTIALLY INTOLERABLE MANNER.  ANY BROADER VIEW OF THIS AUTHORITY
WOULD EFFECTIVELY EMPOWER A MAJORITY TO SILENCE DISSIDENTS SIMPLY AS A
MATTER OF PERSONAL PREDILECTIONS. 

IN THIS REGARD, PERSONS CONFRONTED WITH COHEN'S JACKET WERE IN A
QUITE DIFFERENT POSTURE THAN, SAY, THOSE SUBJECTED TO THE RAUCOUS
EMISSIONS OF SOUND TRUCKS BLARING OUTSIDE THEIR RESIDENCE.  THOSE IN
THE LOS ANGELES COURTHOUSE COULD EFFECTIVELY AVOID FURTHER BOMBARDMENT
OF THEIR SENSIBILITIES SIMPLY BY AVERTING THEIR EYES.  AND, WHILE IT
MAY BE THAT ONE HAS A MORE SUBSTANTIAL CLAIM TO A RECOGNIZABLE PRIVACY
INTEREST WHEN WALKING THROUGH A COURTHOUSE CORRIDOR THAN, FOR EXAMPLE,
STROLLING THROUGH CENTRAL PARK, SURELY IT IS NOTHING LIKE THE INTEREST
IN BEING FREE FROM UNWANTED EXPRESSION IN THE CONFINES OF ONE'S OWN
HOME.  CF. KEEFE, SUPRA.  GIVEN THE SUBTLETY AND COMPLEXITY OF THE
FACTORS INVOLVED, IF COHEN'S "SPEECH" WAS OTHERWISE ENTITLED TO
CONSTITUTIONAL PROTECTION, WE DO NOT THINK THE FACT THAT SOME UNWILLING
"LISTENERS" IN A PUBLIC BUILDING MAY HAVE BEEN BRIEFLY EXPOSED TO IT
CAN SERVE TO JUSTIFY THIS BREACH OF THE PEACE CONVICTION WHERE, AS
HERE, THERE WAS NO EVIDENCE THAT PERSONS POWERLESS TO AVOID APPELLANT'S
CONDUCT DID IN FACT OBJECT TO IT, AND WHERE THAT PORTION OF THE STATUTE
UPON WHICH COHEN'S CONVICTION RESTS EVINCES NO CONCERN, EITHER ON ITS
FACE OR AS CONSTRUED BY THE CALIFORNIA COURTS, WITH THE SPECIAL PLIGHT
OF THE CAPTIVE AUDITOR, BUT, INSTEAD, INDISCRIMINATELY SWEEPS WITHIN
ITS PROHIBITIONS ALL "OFFENSE CONDUCT" THAT DISTURBS "ANY NEIGHBORHOOD
OR PERSON."  CF. EDWARDS V. SOUTH CAROLINA, SUPRA.  /4/

        II 

AGAINST THIS BACKGROUND, THE ISSUE FLUSHED BY THIS CASE STANDS OUT
IN BOLD RELIEF.  IT IS WHETHER CALIFORNIA CAN EXCISE, AS "OFFENSIVE
CONDUCT," ONE PARTICULAR SCURRILOUS EPITHET FROM THE PUBLIC DISCOURSE,
EITHER UPON THE THEORY OF THE COURT BELOW THAT ITS USE IS INHERENTLY
LIKELY TO CAUSE VIOLENT REACTION OR UPON A MORE GENERAL ASSERTION THAT
THE STATES, ACTING AS GUARDIANS OF PUBLIC MORALITY, MAY PROPERLY REMOVE
THIS OFFENSIVE WORD FROM THE PUBLIC VOCABULARY. 

THE RATIONALE OF THE CALIFORNIA COURT IS PLAINLY UNTENABLE.  AT MOST
IT REFLECTS AN "UNDIFFERENTIATED FEAR OR APPREHENSION OF DISTURBANCE
(WHICH) IS NOT ENOUGH TO OVERCOME THE RIGHT TO FREEDOM OF EXPRESSION." 
TINKER V. DES MOINES INDEP.  COMMUNITY SCHOOL DIST., 393 U.S. 503, 508
(1969).  WE HAVE BEEN SHOWN NO EVIDENCE THAT SUBSTANTIAL NUMBERS OF
CITIZENS ARE STANDING READY TO STRIKE OUT PHYSICALLY AT WHOEVER MAY
ASSULT THEIR SENSIBILITIES WITH EXECRATIONS LIKE THAT UTTERED BY
COHEN.  THERE MAY BE SOME PERSONS ABOUT WITH SUCH LAWLESS AND VIOLENT
PROCLIVITIES, BUT THAT IS AN INSUFFICIENT BASE UPON WHICH TO ERECT,
CONSISTENTLY WITH CONSTITUTIONAL VALUES, A GOVERNMENTAL POWER TO FORCE
PERSONS WHO WISH TO VENTILATE THEIR DISSIDENT VIEWS INTO AVOIDING
PARTICULAR FORMS OF EXPRESSION.  THE ARGUMENT AMOUNTS TO LITTLE MORE
THAN THE SELF-DEFEATING PROPOSITION THAT TO AVOID PHYSICAL CENSORSHIP
OF ONE WHO HAS NOT SOUGHT TO PROVOKE SUCH A RESPONSE BY A HYPOTHETICAL
COTERIE OF THE VIOLENT AND LAWLESS, THE STATES MAY MORE APPROPRIATELY
EFFECTUATE THAT CENSORSHIP THEMSELVES.  CF. ASHTON V. KENTUCKY, 384
U.S. 195, 200 (1966); COX V. LOUISIANA, 379 U.S. 536, 550-551 (1965). 

ADMITTEDLY, IT IS NOT SO OBVIOUS THAT THE FIRST AND FOURTEENTH
AMENDMENTS MUST BE TAKEN TO DISABLE THE STATES FROM PUNISHING PUBLIC
UTTERANCE OF THIS UNSEEMLY EXPLETIVE IN ORDER TO MAINATIN WHAT THEY
REGARD AS A SUITABLE LEVEL OF DISCOURSE WITHIN THE BODY POLITIC.  /5/
WE THINK, HOWEVER, THAT EXAMINATION AND REFLECTION WILL REVEAL THE
SHORTCOMINGS OF A CONTRARY VIEWPOINT. 

AT THE OUTSET, WE CANNOT OVEREMPHASIZE THAT, IN OUR JUDGMENT, MOST
SITUATIONS WHERE THE STATE HAS A JUSTIFIABLE INTEREST IN REGULATING
SPEECH WILL FALL WITHIN ONE OR MORE OF THE VARIOUS ESTABLISHED
EXCEPTIONS, DISCUSSED ABOVE BUT NOT APPLICABLE HERE, TO THE USUAL RULE
THAT GOVERNMENTAL BODIES MAY NOT PRESCRIBE THE FORM OR CONTENT OF
INDIVIDUAL EXPRESSION.  EQUALLY IMPORTANT TO OUR CONCLUSION IS THE
CONSTITUTIONAL BACKDROP AGAINST WHICH OUR DECISION MUST BE MADE.  THE
CONSTITUTIONAL RIGHT OF FREE EXPRESSION IS POWERFUL MEDICINE IN A
SOCIETY AS DIVERSE AND POPULOUS AS OURS.  IT IS DESIGNED AND INTENDED
TO REMOVE GOVERNMENTAL RESTRAINTS FROM THE ARENA OF PUBLIC DISCUSSION,
PUTTING THE DECISION AS TO WHAT VIEWS SHALL BE VOICED LARGELY INTO THE
HANDS OF EACH OF US, IN THE HOPE THAT USE OF SUCH FREEDOM WILL
ULTIMATELY PRODUCE A MORE CAPABLE CITIZENRY AND MORE PERFECT POLITY AND
IN THE BELIEF THAT NO OTHER APPROACH WOULD COMPORT WITH THE PREMISE OF
INDIVIDUAL DIGNITY AND CHOICE UPON WHICH OUR POLITICAL SYSTEM RESTS. 
SEE WHITNEY V. CALIFORNIA, 274 U.S. 357, 375-377 (1927) (BRANDEIS, J.,
CONCURRING).     TO MANY, THE IMMEDIATE CONSEQUENCE OF THIS FREEDOM MAY
OFTEN APPEAR TO BE ONLY VERBAL TUMULT, DISCORD, AND EVEN OFFENSIVE
UTTERANCE.  THESE ARE, HOWEVER, WITHIN ESTABLISHED LIMITS, IN TRUTH
NECESSARY SIDE EFFECTS OF THE BROADER ENDURING VALUES WHICH THE PROCESS
OF OPEN DEBATE PERMITS US TO ACHIEVE.  THAT THE AIR MAY AT TIMES SEEM
FILLED WITH VERBAL CACOPHONY IS, IN THIS SENSE NOT A SIGN OF WEAKNESS
BUT OF STRENGTH.  WE CANNOT LOSE SIGHT OF THE FACT THAT, IN WHAT
OTHERWISE MIGHT SEEM A TRIFLING AND ANNOYING INSTANCE OF INDIVIDUAL
DISTASTEFUL ABUSE OF A PRIVILEGE, THESE FUNDAMENTAL SOCIETAL VALUES ARE
TRULY IMPLICATED.  THAT IS WHY "(WHOLLY NEUTRAL FUTILITIES . . . COME
UNDER THE PROTECTION OF FREE SPEECH AS FULLY AS DO KEATS' POEMS OR
DONNE'S SERMONS," WINTERS V. NEW YORK, 333 U.S. 507, 528 (1948)
(FRANKFURTER, J., DISSENTING), AND WHY "SO LONG AS THE MEANS ARE
PEACEFUL, THE COMMUNICATION NEED NOT MEET STANDARDS OF ACCEPTABILITY,"
ORGANIZATION FOR A BETTER AUSTIN V. KEEFE, 402 U.S. 415, 419 (1971 . 

AGAINST THIS PERCEPTION OF THE CONSTITUTIONAL POLICIES INVOLVED, WE
DISCERN CERTAIN MORE PARTICULARIZED CONSIDERATIONS THAT PECULIARLY CALL
FOR REVERSAL OF THIS CONVICTION.  FIRST, THE PRINCIPLE CONTENDED FOR BY
THE STATE SEEMS INHERENTLY BOUNDLESS.  HOW IS ONE TO DISTINGUISH THIS
FROM ANY OTHER OFFENSIVE WORD?  SURELY THE STATE HAS NO RIGHT TO
CLEANSE PUBLIC DEBATE TO THE POINT WHERE IT IS GRAMMATICALLY PALATABLE
TO THE MOST SQUEAMISH AMONG US.  YET NO READILY ASCERTAINABLE GENERAL
PRINCIPLE EXISTS FOR STOPPING SHORT OF THAT RESULT WERE WE TO AFFIRM
THE JUDGMENT BELOW.  FOR, WHILE THEPARTICULAR FOUR-LETTER WORD BEING
LITIGATED HERE IS PERHAPS MORE DISTASTEFUL THAN MOST OTHERS OF ITS
GENRE, IT IS NEVERTHELESS OFTEN TRUE THAT ONE MAN'S VULGARITY IS
ANOTHER'S LYRIC.  INDEED, WE THINK IT IS LARGELY BECAUSE GOVERNMENTAL
OFFICIALS CANNOT MAKE PRINCIPLED DISTINCTIONS IN THIS AREA THAT THE
CONSTITUTION LEAVES MATTERS OF TASTE AND STYLE SO LARGELY TO THE
INDIVIDUAL. 

ADDITIONALLY, WE CANNOT OVERLOOK THE FACT, BECAUSE IT IS WELL
ILLUSTRATED BY THE EPISODE INVOLVED HERE, THAT MUCH LINGUISTIC
EXPRESSION SERVES A DUAL COMMUNICATIVE FUNCTION:  IT CONVEYS NOT ONLY
IDEAS CAPABLE OF RELATIVELY PRECISE, DETACHED EXPLICATION, BUT
OTHERWISE INEXPRESSIBLE EMOTIONS AS WELL.  IN FACT, WORDS ARE OFTEN
CHOSEN AS MUCH FOR THEIR EMOTIVE AS THEIR COGNITIVE FORCE.  WE CANNOT
SANCTION THE VIEW THAT THE CONSTITUTION, WHILE SOLICITOUS OF THE
COGNITIVE CONTENT OF INDIVIDUAL SPEECH, HAS LITTLE OR NO REGARD FOR
THAT EMOTIVE FUNCTION WHICH, PRACTICALLY SPEAKING, MAY OFTEN BE THE
MOST IMPORTANT ELEMENT OF THE OVERALL MESSAGE SOUGHT TO BE
COMMUNICATED.  INDEED, AS MR. JUSTICE FRANKFURTER HAS SAID, "(ONE OF
THE PREROGATIVES OF AMERICAN CITIZENSHIP IS THE RIGHT TO CRITICIZE
PUBLIC MEN AND MEASURES-- AND THAT MEANS NOT ONLY INFORMED AND
RESPONSIBLE CRITICISM BUT THE FREEDOM TO SPEAK FOOLISHLY AND WITHOUT
MODERATION."  BAUMGARTNER V. UNITED STATES, 322 U.S. 665, 673-674
(1944). 

FINALLY, AND IN THE SAME VEIN, WE CANNOT INDULGE THE FACILE
ASSUMPTION THAT ONE CAN FORBID PARTICULAR WORDS WITHOUT ALSO RUNNING A
SUBSTANTIAL RISK OF SUPPRESSING IDEAS IN THE PROCESS.  INDEED,
GOVERNMENTS MIGHT SOON SEIZE UPON THE CENSORSHIP OF PARTICULAR WORDS AS
A CONVENIENT GUISE FOR BANNING THE EXPRESSION OF UNPOPULAR VIEWS.  WE
HAVE BEEN ABLE, AS NOTED ABOVE, TO DISCERN LITTLE SOCIAL BENEFIT THAT
MIGHT RESULT FROM RUNNING THE RISK OF OPENING THE DOOR TO SUCH GRAVE
RESULTS. 

IT IS, IN SUM, OUR JUDGMENT THAT, ABSENT A MORE PARTICULARIZED AND
COMPELLING REASON FOR ITS ACTIONS, THE STATE MAY NOT, CONSISTENTLY WITH
THE FIRST AND FOURTEENTH AMENDMENTS, MAKE THE SIMPLE PUBLIC DISPLAY
HERE INVOLVED OF THIS SINGLE FOUR-LETTER EXPLETIVE A CRIMINAL OFFENSE. 
BECAUSE THAT IS THE ONLY ARGUABLY SUSTAINABLE RATIONALE FOR THE
CONVICTION HERE AT ISSUE, THE JUDGMENT BELOW MUST BE

              REVERSED. 

/1/  THE STATUTE PROVIDES IN FULL: 

"EVERY PERSON WHO MALICIOUSLY AND WILLFULLY DISTURBS THE PEACE OR
QUIET OF ANY NEIGHBORHOOD OR PERSON, BY LOUD OR UNUSUAL NOISE, OR BY
TUMULTUOUS OR OFFENSIVE CONDUCT, OR THREATENING, TRADUCING, QUARRELING,
CHALLENGING TO FIGHT, OR FIGHTING, OR WHO, ON THE PUBLIC STREETS OF ANY
UNINCORPORATED TOWN, OR UPON THE PUBLIC HIGHWAYS IN SUCH UNINCORPORATED
TOWN, RUN ANY HORSE RACE, EITHER FOR A WAGER OR FOR AMUSEMENT, OR FIRE
ANY GUN OR PISTOL IN SUCH UNINCORPORATED TOWN, OR USE ANY VULGAR,
PROFANE, OR INDECENT LANGUAGE WITHIN THE PRESENCE OR HEARING OF WOMEN
OR CHILDREN, IN A LOUD AND BOISTEROUS MANNER, IS GUILTY OF A
MISDEMEANOR, AND UPON CONVICTION BY ANY COURT OF COMPETENT JURISDICTION
SHALL BE PUNISHED BY FINE NOT EXCEEDING TWO HUNDRED DOLLARS, OR BY
IMPRISONMENT IN THE COUNTY JAIL FOR NOT MORE THAN NINETY DAYS, OR BY
BOTH FINE AND IMPRISONMENT, OR EITHER, AT THE DISCRETION OF THE
COURT." 

/2/  THE SUGGESTION HAS BEEN MADE THAT, IN LIGHT OF THE SUPERVENING
OPINION OF THE CALIFORNIA SUPREME COURT IN IN RE BUSHMAN, 1 CAL.3D 767,
463 P.2D 727 (1970), IT IS "NOT AT ALL CERTAIN THAT THE CALIFORNIA
COURT OF APPEAL'S CONSTRUCTION OF SEC. 415 IS NOW THE AUTHORITATIVE
CALIFORNIA CONSTRUCTION."  POST, AT 27 (BLACKMUN, J., DISSENTING).  IN
THE COURSE OF THE BUSHMAN OPINION, CHIEF JUSTICE TRAYNOR STATED: 

"(ONE) MAY . . . BE GUILTY OF DISTURBING THE PEACH THROUGH
'OFFENSIVE' CONDUCT (WITHIN THE MEANING OF SEC. 415) IF BY HIS ACTIONS
HE WILFULLY AND MALICIOUSLY INCITES OTHERS TO VIOLENCE OR ENGAGES IN
CONDUCT LIKELY TO INCITE OTHERS TO VIOLENCE.  (PEOPLE V. COHEN (1969) 1
CAL.APP.3D 94, 101, (81 CAL.RPTR.  503).)"  1 CAL.3D, AT 773, 463 P.2D,
AT 730. 

WE PERCEIVE NO DIFFERENCE OF SUBSTANCE BETWEEN THE BUSHMAN
CONSTRUCTION AND THAT OF THE COURT OF APPEAL, PARTICULARLY IN LIGHT OF
THE BUSHMAN COURT'S APPROVING CITATION OF COHEN. 

/3/  IT IS ILLUMINATING TO NOTE WHAT TRANSPIRED WHEN COHEN ENTERED A
COURTROOM IN THE BUILDING.  HE REMOVED HIS JACKET AND STOOD WITH IT
FOLDED OVER HIS ARM.  MEANWHILE, A POLICEMAN SENT THE PRESIDING JUDGE A
NOTE SUGGESTING THAT COHEN BE HELD IN CONTEMPT OF COURT.  THE JUDGE
DECLINED TO DO SO AND COHEN WAS ARRESTED BY THE OFFICER ONLY AFTER HE
EMERGED FROM THE COURTROOM.  APP.18-19. 

/4/  IN FACT, OTHER PORTIONS OF THE SAME STATUTE DO MAKE SOME SUCH
DISTINCTIONS.  FOR EXAMPLE, THE STATUTE ALSO PROHIBITS DISTURBING "THE
PEACE OR QUIET . . . BY LOUD OR UNUSUAL NOISE" AND USING "VULGAR,
PROFANE, OR INDECENT LANGUAGE WITHIN THE PRESENCE OR HEARING OF WOMEN
OR CHILDREN, IN A LOUD AND BOISTEROUS MANNER."  SEE N. 1, SUPRA.  THIS
SECOND-QUOTED PROVISION IN PARTICULAR SERVES TO PUT THE ACTOR ON MUCH
FAIRER NOTICE AS TO WHAT IS PROHIBITED.  IT ALSO BUTTRESSES OUR VIEW
THAT THE "OFFENSIVE CONDUCT" PORTION, AS CONSTRUED AND APPLIED IN THIS
CASE, CANNOT LEGITIMATELY BE JUSTIFIED IN THIS COURT AS DESIGNED OR
INTENDED TO MAKE FINE DISTINCTIONS BETWEEN DIFFERENTLY SITUATED
RECIPIENTS. 

/5/  THE AMICUS URGES, WITH SOME FORCE, THAT THIS ISSUE IS NOT
PROPERLY BEFORE US SINCE THE STATUTE, AS CONSTRUED, PUNISHES ONLY
CONDUCT THAT MIGHT CAUSE OTHERS TO REACT VIOLENTLY.  HOWEVER, BECAUSE
THE OPINION BELOW APPEARS TO ERECT A VIRTUALLY IRREBUTTABLE PRESUMPTION
THAT USE OF THIS WORD WILL PRODUCE SUCH RESULTS, THE STATUTE AS THUS
CONSTRUED APPEARS TO IMPOSE, IN EFFECT, A FLAT BAN ON THE PUBLIC
UTTERANCE OF THIS WORD.  WITH THE CASE IN THIS POSTURE, IT DOES NOT
SEEM INAPPROPRIATE TO INQUIRE WHETHER ANY OTHER RATIONALE MIGHT
PROPERLY SUPPORT THIS RESULT.  WHILE WE THINK IT CLEAR, FOR THE REASONS
EXPRESSED ABOVE, THAT NO STATUTE WHICH MERELY PROSCRIBES "OFFENSIVE
CONDUCT" AND HAS BEEN CONSTRUED AS BROADLY AS THIS ONE WAS BELOW CAN
SUBSEQUENTLY BE JUSTIFIED IN THIS COURT AS DISCIMINATING BETWEEN
CONDUCT THAT OCCURS IN DIFFERENT PLACES OR THAT OFFENDS ONLY CERTAIN
PERSONS, IT IS NOT SO UNREASONABLE TO SEEK TO JUSTIFY ITS FULL BROAD
SWEEP ON AN ALTERNATE RATIONALE SUCH AS THIS.  BECAUSE IT IS NOT SO
PATENTLY CLEAR THAT ACCEPTANCE OF THE JUSTIFICATION PRESENTLY UNDER
CONSIDERATION WOULD RENDER THE STATUTE OVERBROAD OR UNCONSTITUTIONALLY
VAGUE, AND BECAUSE THE ANSWER TO APPELLEE'S ARGUMENT SEEMS QUITE CLEAR,
WE DO NOT PASS ON THE CONTENTION THAT THIS CLAIM IS NOT PRESENTED ON
THIS RECORD. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK JOIN. 

I DISSENT, AND I DO SO FOR TWO REASONS: 

1.  COHEN'S ABSURD AND IMMATURE ANTIC, IN MY VIEW, WAS MAINLY
CONDUCT AND LITTLE SPEECH.  SEE STREET V. NEW YORK, 394 U.S. 576
(1969); COX V. LOUISIANA, 379 U.S. 536, 555 (1965); GIBONEY V. EMPIRE
STORAGE CO., 336 U.S. 490, 502 (1949).  THE CALIFORNIA COURT OF APPEAL
APPEARS SO TO HAVE DESCRIBED IT, 1 CAL.APP.3D 94, 100, 81 CAL.RPTR. 
403, 507, AND I CANNOT CHARACTERIZE IT OTHERWISE.  FURTHER, THE CASE
APPEARS TO ME TO BE WELL WITHIN THE SPHERE OF CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568 (1942), WHERE MR. JUSTICE MURPHY, A KNOWN
CHAMPION OF FIRST AMENDMENT FREEDOMS, WROTE FOR A UNANIMOUS BENCH.  AS
A CONSEQUENCE, THIS COURT'S AGONIZING OVER FIRST AMENDMENT VALUES SEEMS
MISPLACED AND UNNECESSARY. 

2.  I AM NOT AT ALL CERTAIN THAT THE CALIFORNIA COURT OF APPEAL'S
CONSTRUCTION OF SEC. 415 IS NOW THE AUTHORITATIVE CALIFORNIA
CONSTRUCTION.  THE COURT OF APPEAL FILED ITS OPINION ON OCTOBER 22,
1969.  THE SUPREME COURT OF CALIFORNIA DECLINED REVIEW BY A FOUR-TO
THREE VOTE ON DECEMBER 17.  SEE 1 CAL.APP.3D, AT 104.  A MONTH LATER,
ON JANUARY 27, 1970, THE STATE SUPREME COURT IN ANOTHER CASE CONSTRUED
SEC. 415, EVIDENCTLY FOR THE FIRST TIME.  IN RE BUSHMAN, 1 CAL.3D 767,
463 P.2D 727.  CHIEF JUSTICE TRAYNOR, WHO WAS AMONG THE DISSENTERS TO
HIS COURT'S REFUSAL TO TAKE COHEN'S CASE, WROTE THE MAJORITY OPINION. 
HE HELD THAT SEC. 415 "IS NOT UNCONSTITUTIONALLY VAGUE AND OVERBOARD"
AND FURTHER SAID: 

"(THAT PART OF PENAL CODE SECTION 415 IN QUESTION HERE MAKES
PUNISHABLE ONLY WILFUL AND MALICIOUS CONDUCT THAT IS VIOLENT AND
ENDANGERS PUBLIC SAFETY AND ORDER OR THAT CREATES A CLEAR AND PRESENT
DANGER THAT OTHERS WILL ENGAGE IN VIOLENCE OF THAT NATURE. 

     " . . . (IT) DOES NOT MAKE CRIMINAL ANY NONVIOLENT ACT UNLESS

  THE ACT INCITES OR THREATENS TO INCITE OTHERS TO VIOLENCE . . . .

  "  1 CAL.3D, AT 773-774, 463 P.2D, AT 731.  COHEN WAS CITED IN

  BUSHMAN, 1 CAL.3D, AT 773, 463 P.2D, AT 730, BUT I AM NOT

CONVINCED THAT ITS DESCRIPTION THERE AND COHEN ITSELF ARE COMPLETELY
CONSISTENT WITH THE "CLEAR AND PRESENT DANGER" STANDARD ENUNCIATED IN
BUSHMAN.  INASMUCH AS THIS COURT DOES NOT DISMISS THIS CASE, IT OUGHT
TO BE REMANDED TO THE CALIFORNIA COURT OF APPEAL FOR RECONSIDERATION IN
THE LIGHT OF THE SUBSEQUENTLY RENDERED DECISION BY THE STATE'S HIGHEST
TRIBUNAL IN BUSHMAN. 

MR. JUSTICE WHITE CONCURS IN PARAGRAPH 2 OF MR. JUSTICE BLACKMUN'S
DISSENTING OPINION. 

MELVILLE B. NIMMER ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WAS LAURENCE R. SPERBER. 

MICHAEL T. SAUER ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS ROGER ARNEBERGH. 

ANTHONY G. AMSTERDAM FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES
UNION OF NORTHERN CALIFORNIA AS AMICUS CURIAE URGING REVERSAL. 
..END :


















ROSENBLOOM V. METROMEDIA, 403 U.S. 29 


       ROSENBLOOM V. METROMEDIA, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

        NO. 66.  ARGUED DECEMBER 7-8, 1970-- DECIDED JUNE 7, 1971 


RESPONDENT'S RADIO STATION, WHICH BROADCAST NEWS REPORTS EVERY HALF
HOUR, BROADCAST NEWS STORIES OF PETITIONER'S ARREST FOR POSSESSION OF
OBSCENE LITERATURE AND THE POLICE SEIZURE OF "OBSCENE BOOKS," AND
STORIES CONCERNING PETITIONER'S LAWSUIT AGAINST CERTAIN OFFICIALS
ALLEGING THAT THE MAGAZINES HE DISTRIBUTED WERE NOT OBSCENE AND SEEKING
INJUNCTIVE RELIEF FROM POLICE INTERFERENCE WITH HIS BUSINESS.  THESE
LATTER STORIES DID NOT MENTION PETITIONER'S NAME, BUT USED THE TERMS
"SMUT LITERATURE RACKET" AND "GIRLIE-BOOK PEDDLERS."  FOLLOWING
PETITIONER'S ACQUITTAL OF CRIMINAL OBSCENITY CHARGES, HE FILED THIS
DIVERSITY ACTION IN DISTRICT COURT SEEKING DAMAGES UNDER PENNSYLVANIA'S
LIBEL LAW.  THE JURY FOUND FOR PETITIONER AND AWARDED $25,000 IN
GENERAL DAMAGES; AND $725,000 IN PUNITIVE DAMAGES, WHICH WAS REDUCED BY
THE COURT ON REMITTITUR TO $250,000.  THE COURT OF APPEALS REVERSED,
HOLDING THAT THE NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, STANDARD
APPLIED, AND "THE FACT THAT PLAINTIFF WAS NOT A PUBLIC FIGURE CANNOT BE
ACCORDED DECISIVE SIGNIFICANCE."  HELD:  THE JUDGMENT IS AFFIRMED.  PP.
40-62. 

415 F.2D 892, AFFIRMED. 

MR. JUSTICE BRENNAN, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN, CONCLUDED THAT THE NEW YORK TIMES STANDARD OF KNOWING OR
RECKLESS FALSITY APPLIES IN A STATE CIVIL LIBEL ACTION BROUGHT BY A
PRIVATE INDIVIDUAL FOR A DEFAMATORY FALSEHOOD UTTERED IN A RADIO NEWS
BROADCAST ABOUT THE INDIVIDUAL'S INVOLVEMENT IN AN EVENT OF PUBLIC OR
GENERAL INTEREST.  PP. 40-57. 

MR. JUSTICE BLACK CONCLUDED THAT THE FIRST AMENDMENT PROTECTS THE
NEWS MEDIA FROM LIBEL JUDGMENTS EVEN WHEN STATEMENTS ARE MADE WITH
KNOWLEDGE THAT THEY ARE FALSE.  P. 57. 

MR. JUSTICE WHITE CONCLUDED THAT, IN THE ABSENCE OF ACTUAL MALICE AS
DEFINED IN NEW YORK TIMES, SUPRA, THE FIRST AMENDMENT GIVES THE NEWS
MEDIA A PRIVILEGE TO REPORT AND COMMENT UPON THE OFFICIAL ACTIONS OF
PUBLIC SERVANTS IN FULL DETAIL, WITHOUT SPARING FROM PUBLIC VIEW THE
REPUTATION OR PRIVACY OF AN INDIVIDUAL INVOLVED IN OR AFFECTED BY ANY
OFFICIAL ACTION.  PP. 59-62. 

BRENNAN, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION
IN WHICH BURGER, C.J., AND BLACKMUN, J., JOINED.  BLACK, J., POST, P.
57, AND WHITE, J., POST, P. 57, FILED OPINIONS CONCURRING IN THE
JUDGMENT.  HARLAN, J., FILED A DISSENTING OPINION, POST, P. 62. 
MARSHALL, J., FILED A DISSENTING OPINION IN WHICH STEWART, J., JOINED,
POST, P. 78.  DOUGLAS, J., TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE AND MR. JUSTICE BLACKMUN JOIN. 

IN A SERIES OF CASES BEGINNING WITH NEW YORK TIMES CO. V. SULLIVAN,
376 U.S. 254 (1964), THE COURT HAS CONSIDERED THE LIMITATIONS UPON
STATE LIBEL LAWS IMPOSED BY THE CONSTITUTIONAL GUARANTEES OF FREEDOM OF
SPEECH AND OF THE PRESS.  NEW YORK TIMES HELD THAT IN A CIVIL LIBEL
ACTION BY A PUBLIC OFFICIAL AGAINST A NEWSPAPER THOSE GUARANTEES
REQUIRED CLEAR AND CONVINCING PROOF THAT A DEFAMATORY FALSEHOOD ALLEGED
AS LIBEL WAS UTTERED WITH "KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS
DISREGARD OF WHETHER IT WAS FALSE OR NOT."  ID., AT 280.  THE SAME
REQUIREMENT WAS LATER HELD TO APPLY TO "PUBLIC FIGURES" WHO SUED IN
LIBEL ON THE BASIS OF ALLEGED DEFAMATORY FALSEHOODS.  THE SEVERAL CASES
CONSIDERED SINCE NEW YORK TIMES INVOLVED ACTIONS OF "PUBLIC OFFICIALS"
OR "PUBLIC FIGURES," USUALLY, BUT NOT ALWAYS, AGAINST NEWSPAPERS OR
MAGAZINES.  /1/  COMMON TO ALL THE CASES WAS A DEFAMATORY FALSEHOOD IN
THE REPORT OF AN EVENT OF "PUBLIC OR GENERAL INTEREST."  /2/  THE
INSTANT CASE PRESENTS THE QUESTION WHETHER THE NEW YORK TIMES'  KNOWING
OR-RECKLESS-FALSITY STANDARD APPLIES IN A STATE CIVIL LIBEL ACTION
BROUGHT NOT BY A "PUBLIC OFFICIAL" OR A "PUBLIC FIGURE" BUT BY A
PRIVATE INDIVIDUAL FOR A DEFAMATORY FALSEHOOD UTTERED IN A NEWS
BROADCAST BY A RADIO STATION ABOUT THE INDIVIDUAL'S INVOLVEMENT IN AN
EVENT OF PUBLIC OR GENERAL INTEREST.  /3/  THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA HELD THAT THE NEW YORK TIMES STANDARD
DID NOT APPLY AND THAT PENNSYLVANIA LAW DETERMINED RESPONDENT'S
LIABILITY IN THIS DIVERSITY CASE, 289 F.SUPP.  737 (1968).  THE COURT
OF APPEALS FOR THE THIRD CIRCUIT HELD THAT THE NEW YORK TIMES STANDARD
DID APPLY AND REVERSED THE JUDGMENT FOR DAMAGES AWARDED TO PETITIONER
BY THE JURY.  415 F.2D 892 (1969).  WE GRANTED CERTIORARI, 397 U.S. 904
(1970).  WE AGREE WITH THE COURT OF APPEALS AND AFFIRM THAT COURT'S
JUDGMENT. 

    I 

IN 1963, PETITIONER WAS A DISTRIBUTOR OF NUDIST MAGAZINES IN THE
PHILADELPHIA METROPOLITAN AREA.  DURING THE FALL OF THAT YEAR, IN
RESPONSE TO CITIZEN COMPLAINTS, THE SPECIAL INVESTIGATIONS SQUAD OF THE
PHILADELPHIA POLICE DEPARTMENT INITIATED A SERIES OF ENFORCEMENT
ACTIONS UNDER THE CITY'S OBSCENITY LAWS.  THE POLICE, UNDER THE COMMAND
OF CAPTAIN FERGUSON, PURCHASED VARIOUS MAGAZINES FROM MORE THAN 20
NEWSSTANDS THROUGHOUT THE CITY.  BASED UPON CAPTAIN FERGUSON'S
DETERMINATION THAT THE MAGAZINES WERE OBSCENE, /4/  POLICE ON OCTOBER
1, 1963, ARRESTED MOST OF THE NEWSSTAND OPERATORS /5/  ON CHARGES OF
SELLING OBSCENE MATERIAL.  WHILE THE POLICE WERE MAKING AN ARREST AT
ONE NEWSSTAND, PETITIONER ARRIVED TO DELIVER SOME OF HIS NUDIST
MAGAZINES AND WAS IMMEDIATELY ARRESTED ALONG WITH THE NEWSBOY.  /6/
THREE DAYS LATER, ON OCTOBER 4, THE POLICE OBTAINED A WARRANT TO SEARCH
PETITIONER'S HOME AND THE RENTED BARN HE USED AS A WAREHOUSE, AND
SEIZED THE INVENTORY OF MAGAZINES AND BOOKS FOUND AT THESE LOCATIONS. 
UPON LEARNING OF THE SEIZURES, PETITIONER, WHO HAD BEEN RELEASED ON
BAIL AFTER HIS FIRST ARREST, SURRENDERED TO THE POLICE AND WAS ARRESTED
FOR A SECOND TIME. 

FOLLOWING THE SECOND ARREST, CAPTAIN FERGUSON TELEPHONED RESPONDENT'S
RADIO STATION WIP AND ANOTHER LOCAL RADIO STATION, A WIRE SERVICE, AND
A LOCAL NEWSPAPER TO INFORM THEM OF THE RAID ON PETITIONER'S HOME AND
OF HIS ARREST.  WIP BROADCAST NEWS REPORTS EVERY HALF HOUR TO THE
PHILADELPHIA METROPOLITAN AREA.  THESE NEWS PROGRAMS RAN EITHER FIVE OR
TEN MINUTES AND GENERALLY CONTAINED FROM SIX TO TWENTY DIFFERENT ITEMS
THAT AVERAGED ABOUT THIRTY SECONDS EACH.  WIP'S 6 P.M. BROADCAST ON
OCTOBER 4, 1963, INCLUDED THE FOLLOWING ITEM:

        "CITY CRACKS DOWN ON SMUT MERCHANTS 

     "THE SPECIAL INVESTIGATIONS SQUAD RAIDED THE HOME OF GEORGE

  ROSENBLOOM IN THE 1800 BLOCK OF VESTA STREET THIS AFTERNOON. 

  POLICE CONFISCATED 1,000 ALLEGEDLY OBSCENE BOOKS AT ROSENBLOOM'S

  HOME AND ARRESTED HIM ON CHARGES OF POSSESSION OF OBSCENE

  LITERATURE.  THE SPECIAL INVESTIGATIONS SQUAD ALSO RAIDED A BARN

  IN THE 20 HUNDRED BLOCK OF WELSH ROAD NEAR BUSTLETON AVENUE AND

CONFISCATED 3,000 OBSCENE BOOKS.  CAPT. FERGUSON SAYS HE BELIEVES

  THEY HAVE HIT THE SUPPLY OF A MAIN DISTRIBUTOR OF OBSCENE

  MATERIAL IN PHILADELPHIA." 

THIS REPORT WAS REBROADCAST IN SUBSTANTIALLY THE SAME FORM AT 6:30
P.M., BUT AT 8 P.M. WHEN THE ITEM WAS BROADCAST FOR THE THIRD TIME, WIP
CORRECTED THE THIRD SENTENCE TO READ "REPORTEDLY OBSCENE."  NEWS OF
PETITIONER'S ARREST WAS BROADCAST FIVE MORE TIMES IN THE FOLLOWING
TWELVE HOURS, BUT EACH REPORT DESCRIBED THE SEIZED BOOKS AS "ALLEGEDLY"
OR "REPORTEDLY" OBSCENE.  FROM OCTOBER 5 TO OCTOBER 21, WIP BROADCAST
NO FURTHER REPORTS RELATING TO PETITIONER. 

ON OCTOBER 16 PETITIONER BROUGHT AN ACTION IN FEDERAL DISTRICT COURT
AGAINST VARIOUS CITY AND POLICE OFFICIALS AND AGAINST SEVERAL LOCAL
NEWS MEDIA.  /7/  THE SUIT ALLEGED THAT THE MAGAZINES PETITIONER
DISTRIBUTED WERE NOT OBSCENE AND SOUGHT INJUNCTIVE RELIEF PROHIBITING
FURTHER POLICE INTERFERENCE WITH HIS BUSINESS AS WELL AS FURTHER
PUBLICITY OF THE EARLIER ARRESTS.  THE SECOND SERIES OF ALLEGEDLY
DEFAMATORY BROADCASTS RELATED TO WIP'S NEWS REPORTS OF THE LAWSUIT. 
THERE WERE TEN BROADCASTS ON OCTOBER 21, TWO ON OCTOBER 25, AND ONE ON
NOVEMBER 1.  NONE MENTIONED PETITIONER BY NAME.  THE FIRST AT 6:30 A.M.
ON OCTOBER 21 WAS PRETTY MUCH LIKE THOSE THAT FOLLOWED: 

     "FEDERAL DISTRICT JUDGE LORD, WILL HEAR ARGUMENTS TODAY FROM

  TWO PUBLISHERS AND A DISTRIBUTOR ALL SEEKING AN INJUNCTION

AGAINST PHILADELPHIA POLICE COMMISSIONER HOWARD LEARY . . .

  DISTRICT ATTORNEY JAMES C. CRUMLISH . . . A LOCAL TELEVISION

  STATION AND A NEWSPAPER . . . ORDERING THEM TO LAY OFF THE SMUT

  LITERATURE RACKET. 

     "THE GIRLIE-BOOK PEDDLERS SAY THE POLICE CRACK-DOWN AND

  CONTINUED REFERENCE TO THEIR BORDERLINE LITERATURE AS SMUT OR

  FILTH IS HURTING THEIR BUSINESS.  JUDGE LORD REFUSED TO ISSUE A

  TEMPORARY INJUNCTION WHEN HE WAS FIRST APPROACHED.  TODAY HE'LL

  DECIDE THE ISSUE.  IT WILL SET A PRECEDENT . . . AND IF THE

  INJUNCTION IS NOT GRANTED . . . IT COULD SIGNAL AN EVEN MORE

  INTENSE EFFORT TO RID THE CITY OF PORNOGRAPHY." 

ON OCTOBER 27, PETITIONER WENT TO WIP'S STUDIOS AFTER HEARING FROM A
FRIEND THAT THE STATION HAD BROADCAST NEWS ABOUT HIS LAWSUIT.  USING A
LOBBY TELEPHONE TO TALK WITH A PART-TIME NEWSCASTER, PETITIONER
INQUIRED WHAT STORIES WIP HAD BROADCAST ABOUT HIM.  THE NEWSCASTER
ASKED HIM TO BE MORE SPECIFIC ABOUT DATES AND TIMES.  PETITIONER THEN
ASKED FOR THE NOON NEWS BROADCAST ON OCTOBER 21, 1963, WHICH THE
NEWSCASTER READ TO HIM OVER THE PHONE; IT WAS SIMILAR TO THE ABOVE 6:30
A.M. BROADCAST.  ACCORDING TO PETITIONER, THE ENSUING INTERCHANGE WAS
BRIEF.  PETITIONER TOLD THE NEWSCASTER THAT HIS MAGAZINES WERE "FOUND
TO BE COMPLETELY LEGAL AND LEGITIMATE BY THE UNITED STATES SUPREME
COURT."  WHEN THE NEWSCASTER REPLIED THE DISTRICT ATTORNEY HAD SAID THE
MAGAZINES WERE OBSCENE, PETITIONER COUNTERED THAT HE HAD A PUBLIC
STATEMENT OF THE DISTRICT ATTORNEY DECLARING THE MAGAZINES LEGAL.  AT
THAT POINT, PETITIONER TESTIFIED, "THE TELEPHONE CONVERSATION WAS
TERMINATED . . . HE JUST HUNG UP."  PETITIONER APPARENTLY MADE NO
REQUEST FOR A RETRACTION OR CORRECTION, AND NONE WAS FORTHCOMING. 
WIP'S FINAL REPORT ON PETITIONER'S LAWSUIT-- THE ONLY ONE AFTER
PETITIONER'S UNSATISFACTORY CONVERSATION AT THE STATION-- OCCURRED ON
NOVEMBER 1 AFTER THE STATION HAD CHECKED THE STORY WITH THE JUDGE
INVOLVED.  /8/

II 

IN MAY 1964 A JURY ACQUITTED PETITIONER IN STATE COURT OF THE
CRIMINAL OBSCENITY CHARGES UNDER INSTRUCTIONS OF THE TRIAL JUDGE THAT,
AS A MATTER OF LAW, THE NUDIST MAGAZINES DISTRIBUTED BY PETITIONER WERE
NOT OBSCENE.  FOLLOWING HIS ACQUITTAL, PETITIONER FILED THIS DIVERSITY
ACTION IN DISTRICT COURT SEEKING DAMAGES UNDER PENNSYLVANIA'S LIBEL
LAW.  PETITIONER ALLEGED THAT WIP'S UNQUALIFIED CHARACTERIZATION OF THE
BOOKS SEIZED AS "OBSCENE" IN THE 6 AND 6:30 P.M. BROADCASTS OF OCTOBER
4, DESCRIBING HIS ARREST, CONSTITUTED LIBEL PER SE AND WAS PROVED FALSE
BY PETITIONER'S SUBSEQUENT ACQUITTAL.  IN ADDITION, HE ALLEGED THAT THE
BROADCASTS IN THE SECOND SERIES DESCRIBING HIS COURT SUIT FOR
INJUNCTIVE RELIEF WERE ALSO FALSE AND DEFAMATORY IN THAT WIP
CHARACTERIZED PETITIONER AND HIS BUSINESS ASSOCIATES AS "SMUT
DISTRIBUTORS" AND "GIRLIE-BOOK PEDDLERS" AND, FURTHER, FALSELY
CHARACTERIZED THE SUIT AS AN ATTEMPT TO FORCE THE DEFENDANTS "TO LAY
OFF THE SMUT LITERATURE RACKET." 

AT THE TRIAL WIP'S DEFENSES WERE TRUTH AND PRIVILEGE.  WIP'S NEWS
DIRECTOR TESTIFIED THAT HIS EIGHT-MAN STAFF OF REPORTERS PREPARED THEIR
OWN NEWSCASTS AND BROADCAST THEIR MATERIAL THEMSELVES, AND THAT
MATERIAL FOR THE NEWS PROGRAMS USUALLY CAME EITHER FROM THE WIRE
SERVICES OR FROM TELEPHONE TIPS.  NONE OF THE WRITERS OR BROADCASTERS
INVOLVED IN PREPARING THE BROADCASTS IN THIS CASE TESTIFIED.  THE NEWS
DIRECTOR'S RECOLLECTION WAS THAT THE PRIMARY SOURCE OF INFORMATION FOR
THE FIRST SERIES OF BROADCASTS ABOUT PETITIONER'S ARREST WAS CAPTAIN
FERGUSON, BUT THAT, TO THE DIRECTOR'S KNOWLEDGE, THE STATION DID NOT
HAVE ANY FURTHER VERIFICATION.  CAPTAIN FERGUSON TESTIFIED THAT HE HAD
INFORMED WIP AND OTHER MEDIA OF THE POLICE ACTION AND THAT WIP HAD
ACCURATELY BROADCAST WHAT HE TOLD THE STATION.  THE EVIDENCE REGARDING
WIP'S INVESTIGATION OF PETITIONER'S LAWSUIT IN THE SECOND SERIES OF
BROADCASTS WAS EVEN MORE SPARSE.  THE NEWS DIRECTOR TESTIFIED THAT HE
WAS "SURE WE WOULD CHECK WITH THE DISTRICT ATTORNEY'S OFFICE ALSO AND
WITH THE POLICE DEPARTMENT," BUT "IT WOULD BE DIFFICULT FOR ME TO
SPECIFICALLY STATE WHAT ADDITIONAL CORROBORATION WE HAD."  IN GENERAL,
HE TESTIFIED THAT WIP'S HALF-HOUR DEADLINES REQUIRED IT TO RELY ON WIRE
SERVICE COPY AND ORAL REPORTS FROM PREVIOUSLY RELIABLE SOURCES SUBJECT
TO THE GENERAL POLICY THAT "WE WILL CONTACT AS MANY SOURCES AS WE
POSSIBLY CAN ON ANY KIND OF A STORY." 

        III 

PENNSYLVANIA'S LIBEL LAW TRACKS ALMOST PRECISELY THE RESTATEMENT
(FIRST) OF TORTS PROVISIONS ON THE SUBJECT.  PENNSYLVANIA HOLDS
ACTIONABLE ANY UNPRIVILEGED "MALICIOUS"  /9/  PUBLICATION OF MATTER
WHICH TENDS TO HARM A PERSON'S REPUTATION AND EXPOSE HIM TO PUBLIC
HATRED, CONTEMPT, OR RIDUCULE.  SCHNABEL V. MEREDITH, 378 PA. 609, 107
A.2D 860 (1954); RESTATEMENT OF TORTS SECS. 558, 559 (1938). 
PENNSYLVANIA LAW RECOGNIZES TRUTH AS A COMPLETE DEFENSE TO A LIBEL
ACTION.  SCHONEK V. WJAC, INC., 436 PA. 78, 84, 258 A.2D 504, 507
(1969); RESTATEMENT OF TORTS SEC. 582.  IT RECOGNIZES AN ABSOLUTE
IMMUNITY FOR DEFAMATORY STATEMENTS MADE BY HIGH STATE OFFICIALS, EVEN
IF PUBLISHED WITH AN IMPROPER MOTIVE, ACTUAL MALICE, OR KNOWING
FALSITY.  MONTGOMERY V. PHILADELPHIA, 392 PA. 178, 140 A.2D 100 (1958);
RESTATEMENT OF TORTS SEC. 591, AND IT RECOGNIZES A CONDITIONAL
PRIVILEGE FOR NEWS MEDIA TO REPORT JUDICIAL, ADMINISTRATIVE, OR
LEGISLATIVE PROCEEDINGS IF THE ACCOUNT IS FAIR AND ACCURATE, AND NOT
PUBLISHED SOLELY FOR THE PURPOSE OF CAUSING HARM TO THE PERSON DEFAMED,
EVEN THOUGH THE OFFICIAL INFORMATION IS FALSE OR INACCURATE.  SCIANDRA
V. LYNETT, 409 PA. 595, 600-601, 187 A.2D 586, 588-589 (1963);
RESTATEMENT OF TORTS SEC. 611.  THE CONDITIONAL PRIVILEGE OF THE NEWS
MEDIA MAY BE DEFEATED, HOWEVER, BY "'WANT OF REASONABLE CARE AND
DILIGENCE TO ASCERTAIN THE TRUTH, BEFORE GIVING CURRENCY TO AN UNTRUE
COMMUNICATION.'  THE FAILURE TO EMPLOY SUCH 'REASONABLE CARE AND
DILIGENCE' CAN DESTROY A PRIVILEGE WHICH OTHERWISE WOULD PROTECT THE
UTTERER OF THE COMMUNICATION."  PURCELL V. WESTINGHOUSE BROADCASTING
CO., 411 PA. 167, 179, 191 A.2D 662, 668 (1963).  PENNSYLVANIA HAS ALSO
ENACTED VERBATIM THE RESTATEMENT'S PROVISIONS ON BURDEN OF PROOF, WHICH
PLACE THE BURDEN OF PROOF FOR THE AFFIRMATIVE DEFENSES OF TRUTH AND
PRIVILEGE UPON THE DEFENDANT.  /10/ 

AT THE CLOSE OF THE EVIDENCE, THE DISTRICT COURT DENIED RESPONDENT'S
MOTION FOR A DIRECTED VERDICT AND CHARGED THE JURY, IN CONFORMITY WITH
PENNSYLVANIA LAW, THAT FOUR FINDINGS WERE NECESSARY TO RETURN A VERDICT
FOR PETITIONER:  (1) THAT ONE OR MORE OF THE BROADCASTS WERE
DEFAMATORY; (2) THAT A REASONABLE LISTENER WOULD CONCLUDE THAT THE
DEFAMATORY STATEMENT REFERRED TO PETITIONER; (3) THAT WIP HAD FORFEITED
ITS PRIVILEGE TO REPORT OFFICIAL PROCEEDINGS FAIRLY AND ACCURATELY,
EITHER BECAUSE IT INTENDED TO INJURE THE PLAINTIFF PERSONALLY OR
BECAUSE IT EXERCISED THE PRIVILEGE UNREASONABLY AND WITHOUT REASONABLE
CARE; AND (4) THAT THE REPORTING WAS FALSE.  THE JURY WAS INSTRUCTED
THAT PETITIONER HAD THE BURDEN OF PROOF ON THE FIRST THREE ISSUES, BUT
THAT RESPONDENT HAD THE BURDEN OF PROVING THAT THE REPORTING WAS TRUE. 
THE JURY WAS FURTHER INSTRUCTED THAT "AS A MATTER OF LAW" PETITIONER
WAS NOT ENTITLED TO ACTUAL DAMAGES CLAIMED FOR LOSS OF BUSINESS "NOT
BECAUSE IT WOULDN'T ORDINARILY BE BUT BECAUSE THERE HAS BEEN EVIDENCE
THAT THIS SAME SUBJECT MATTER WAS THE SUBJECT"  OF BROADCASTS OVER
OTHER TELEVISION AND RADIO STATIONS AND OF NEWSPAPER REPORTS, "SO IF
THERE WAS ANY BUSINESS LOST . . . WE HAVE NO PROOF . . . THAT (IT)
RESULTED DIRECTLY FROM THE BROADCASTS BY WIP . . . . "  APP. 331A.  ON
THE QUESTION OF PUNITIVE DAMAGES, THE JUDGE GAVE THE FOLLOWING
INSTRUCTION:     "(IF YOU FIND THAT THIS PUBLICATION AROSE FROM A BAD
MOTIVE OR MALICE TOWARD THE PLAINTIFF, OR IF YOU FIND THAT IT WAS
PUBLISHED WITH RECKLESS INDIFFERENCE TO THE TRUTH, IF YOU FIND THAT IT
WAS NOT TRUE, YOU WOULD BE ENTITLED TO AWARD PUNITIVE DAMAGES, AND
PUNITIVE DAMAGES ARE AWARDED AS A DETERRENT FROM FUTURE CONDUCT OF THE
SAME SORT. 

     "THEY REALLY ARE AWARDED ONLY FOR OUTRAGEOUS CONDUCT, AS I
HAVE

  SAID, WITH A BAD MOTIVE OR WITH RECKLESS DISREGARD OF THE

  INTERESTS OF OTHERS, AND BEFORE YOU WOULD AWARD PUNITIVE DAMAGES

  YOU MUST FIND THAT THESE BROADCASTS WERE PUBLISHED WITH A BAD

MOTIVE OR WITH RECKLESS DISREGARD OF THE RIGHTS OF OTHERS, OR

  RECKLESS INDIFFERENCE TO THE RIGHTS OF OTHERS . . . ." 

THE JURY RETURNED A VERDICT FOR PETITIONER AND AWARDED $25,000 IN
GENERAL DAMAGES, AND $725,000 IN PUNITIVE DAMAGES.  THE DISTRICT COURT
REDUCED THE PUNITIVE DAMAGES AWARD TO $250,000 ON REMITTITUR, BUT
DENIED RESPONDENT'S MOTION FOR JUDGMENT N.O.V.  IN REVERSING, THE COURT
OF APPEALS EMPHASIZED THAT THE BROADCASTS CONCERNED MATTERS OF PUBLIC
INTEREST AND THAT THEY INVOLVED "HOT NEWS" PREPARED UNDER DEADLINE
PRESSURE.  THE COURT OF APPEALS CONCLUDED THAT "THE FACT THAT PLAINTIFF
WAS NOT A PUBLIC FIGURE CANNOT BE ACCORDED DECISIVE IMPORTANCE IF THE
RECOGNIZED IMPORTANT GUARANTEES OF THE FIRST AMENDMENT ARE TO BE
ADEQUATELY IMPLEMENTED."  415 F.2D, AT 896.  FOR THAT REASON, THE COURT
HELD THAT NEW YORK TIMES STANDARD APPLIED AND, FURTHER, DIRECTED THAT
JUDGMENT BE ENTERED FOR RESPONDENT, HOLDING THAT, AS A MATTER OF LAW,
PETITIONER'S EVIDENCE DID NOT MEET THAT STANDARD. 

        IV 

PETITIONER CONCEDES THAT THE POLICE CAMPAIGN TO ENFORCE THE
OBSCENITY LAWS WAS AN ISSUE OF PUBLIC INTEREST, AND, THEREFORE, THAT
THE CONSTITUTIONAL GUARANTEES FOR FREEDOM OF SPEECH AND PRESS IMPOSED
LIMITS UPON PENNSYLVANIA'S POWER TO APPLY ITS LIBEL LAWS TO COMPEL
RESPONDENT TO COMPENSATE HIM IN DAMAGES FOR THE ALLEGED DEFAMATORY
FALSEHOODS BROADCAST ABOUT HIS INVOLVEMENT.  AS NOTED, THE NARROW
QUESTION HE RAISES IS WHETHER, BECAUSE HE IS NOT A "PUBLIC OFFICIAL" OR
A "PUBLIC FIGURE" BUT A PRIVATE INDIVIDUAL, THOSE LIMITS REQUIRED THAT
HE PROVE THAT THE FALSEHOODS RESULTED FROM A FAILURE OF RESPONDENT TO
EXERCISE REASONABLE CARE, OR REQUIRED THAT HE PROVE THAT THE FALSEHOODS
WERE BROADCAST WITH KNOWLEDGE OF THEIR FALSITY OR WITH RECKLESS
DISREGARD OF WHETHER THEY WERE FALSE OR NOT.  THAT QUESTION MUST BE
ANSWERED AGAINST THE BACKGROUND OF THE FUNCTIONS OF THE CONSTITUTIONAL
GUARANTEES FOR FREEDOM OF EXPRESSION.  ROSENBLATT V. BAER, 383 U.S. 75,
AT 84-85, N. 10 (1966). 

SELF-GOVERNANCE IN THE UNITED STATES PRESUPPOSES FAR MORE THAN
KNOWLEDGE AND DEBATE ABOUT THE STRICTLY OFFICIAL ACTIVITIES OF VARIOUS
LEVELS OF GOVERNMENT.  THE COMMITMENT OF THE COUNTRY TO THE INSTITUTION
OF PRIVATE PROPERTY PROTECTED BY THE DUE PROCESS AND JUST COMPENSATION
CLAUSES IN THE CONSTITUTION, PLACES IN PRIVATE HANDS VAST AREAS OF
ECONOMIC AND SOCIAL POWER THAT VITALLY AFFECT THE NATURE AND QUALITY OF
LIFE IN THE NATION.  OUR EFFORTS TO LIVE AND WORK TOGETHER IN A FREE
SOCIETY NOT COMPLETELY DOMINATED BY GOVERNMENTAL REGULATION NECESSARILY
ENCOMPASS FAR MORE THAN POLITICS IN A NARROW SENSE.  "THE GUARANTEES
FOR SPEECH AND PRESS ARE NOT THE PRESERVE OF POLITICAL EXPRESSION OR
COMMENT UPON PUBLIC AFFAIRS."  TIME, INC. V. HILL, 385 U.S. 374, 388
(1967).  "FREEDOM OF DISCUSSION, IF IT WOULD FULFILL ITS HISTORIC
FUNCTION IN THIS NATION, MUST EMBRACE ALL ISSUES ABOUT WHICH
INFORMATION IS NEEDED OR APPROPRIATE TO ENABLE THE MEMBERS OF SOCIETY
TO COPE WITH THE EXIGENCIES OF THEIR PERIOD."  THORNHILL V. ALABAMA,
310 U.S. 88, 102 (1940). 

ALTHOUGH THE LIMITATIONS UPON CIVIL LIBEL ACTIONS, FIRST HELD IN NEW
YORK TIMES TO BE REQUIRED BY THE FIRST AMENDMENT, WERE APPLIED IN THAT
CASE IN THE CONTEXT OF DEFAMATORY FALSEHOODS ABOUT THE OFFICIAL CONDUCT
OF A PUBLIC OFFICIAL, LATER DECISIONS HAVE DISCLOSED THE ARTIFICIALITY,
IN TERMS OF THE PUBLIC'S INTEREST, OF A SIMPLE DISTINCTION BETWEEN
"PUBLIC" AND "PRIVATE" INDIVIDUALS OR INSTITUTIONS: 

"INCREASINGLY IN THIS COUNTRY, THE DISTINCTIONS BETWEEN GOVERNMENTAL
AND PRIVATE SECTORS ARE BLURRED . . . . IN MANY SITUATIONS, POLICY
DETERMINATIONS WHICH TRADITIONALLY WERE CHANNELED THROUGH FORMAL
POLITICAL INSTITUTIONS ARE NOW ORIGINATED AND IMPLEMENTED THROUGH A
COMPLEX ARRAY OF BOARDS, COMMITTEES, COMMISSIONS, CORPORATIONS, AND
ASSOCIATIONS, SOME ONLY LOOSELY CONNECTED WITH THE GOVERNMENT.  THIS
BLENDING OF POSITIONS AND POWER HAS ALSO OCCURRED IN THE CASE OF
INDIVIDUALS SO THAT MANY WHO DO NOT HOLD PUBLIC OFFICE AT THE MOMENT
ARE NEVERTHELESS INTIMATELY INVOLVED IN THE RESOLUTION OF IMPORTANT
PUBLIC QUESTIONS . . . . 

     " . . . OUR CITIZENRY HAS A LEGITIMATE AND SUBSTANTIAL
INTEREST

  IN THE CONDUCT OF SUCH PERSONS, AND FREEDOM OF THE PRESS TO

  ENGAGE IN UNINHIBITED DEBATE ABOUT THEIR INVOLVEMENT IN PUBLIC

  ISSUES AND EVENTS IS AS CRUCIAL AS IT IS IN THE CASE OF 'PUBLIC

OFFICIALS.'"  CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130,

  163-164 (1967) (WARREN, C.J., CONCURRING IN RESULT). 

MOREOVER, THE CONSTITUTIONAL PROTECTION WAS NOT INTENDED TO BE LIMITED
TO MATTERS BEARING BROADLY ON ISSUES OF RESPONSIBLE GOVERNMENT.  "(THE
FOUNDERS . . . FELT THAT A FREE PRESS WOULD ADVANCE 'TRUTH, SCIENCE,
MORALITY, AND ARTS IN GENERAL' AS WELL AS RESPONSIBLE GOVERNMENT." 
ID., AT 147 (OPINION OF HARLAN, J.).  COMMENTS IN OTHER CASES REITERATE
THIS JUDGMENT THAT THE FIRST AMENDMENT EXTENDS TO MYRIAD MATTERS OF
PUBLIC INTEREST.  IN TIME, INC. V. HILL, SUPRA, WE HAD "NO DOUBT THAT
THE . . . OPENING OF A NEW PLAY LINKED TO AN ACTUAL INCIDENT, IS A
MATTER OF PUBLIC INTEREST," 385 U.S.,AT 388, WHICH WAS ENTITLED TO
CONSTITUTIONAL PROTECTION.  BUTTS HELD THAT AN ALLEGED "FIX" OF A
COLLEGE FOOTBALL GAME WAS A PUBLIC ISSUE.  ASSOCIATED PRESS V. WALKER,
388 U.S. 130 (1967), A COMPANION CASE TO BUTTS, ESTABLISHED THAT THE
PUBLIC HAD A SIMILAR INTEREST IN THE EVENTS AND PERSONALITIES INVOLVED
IN FEDERAL EFFORTS TO ENFORCE A COURT DECREE ORDERING THE ENROLLMENT OF
A NEGRO STUDENT IN THE UNIVERSITY OF MISSISSIPPI.  THUS, THESE CASES
UNDERSCORE THE VITALITY, AS WELL AS THE SCOPE, OF THE "PROFOUND
NATIONAL COMMITMENT TO THE PRINCIPLE THAT DEBATE ON PUBLIC ISSUES
SHOULD BE UNINHIBITED, ROBUST, AND WIDE-OPEN."  NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S.,AT 270-271. 

IF A MATTER IS A SUBJECT OF PUBLIC OR GENERAL INTEREST, IT CANNOT
SUDDENLY BECOME LESS SO MERELY BECAUSE A PRIVATE INDIVIDUAL IS
INVOLVED, OR BECAUSE IN SOME SENSE THE INDIVIDUAL DID NOT "VOLUNTARILY"
CHOOSE TO BECOME INVOLVED.  THE PUBLIC'S PRIMARY INTEREST IS IN THE
EVENT; THE PUBLIC FOCUS IS ON THE CONDUCT OF THE PARTICIPANT AND THE
CONTENT, EFFECT, AND SIGNIFICANCE OF THE CONDUCT, NOT THE PARTICIPANT'S
PRIOR ANONYMITY OR NOTORIETY.  /11/  THE PRESENT CASE ILLUSTRATES THE
POINT.  THE COMMUNITY HAS A VITAL INTEREST IN THE PROPER ENFORCEMENT OF
ITS CRIMINAL LAWS, PARTICULARLY IN AN AREA SUCH AS OBSCENITY WHERE A
NUMBER OF HIGHLY IMPORTANT VALUES ARE POTENTIALLY IN CONFLICT:  THE
PUBLIC HAS AN INTEREST BOTH IN SEEING THAT THE CRIMINAL LAW IS
ADEQUATELY ENFORCED AND IN ASSURING THAT THE LAW IS NOT USED
UNCONSTITUTIONALLY TO SUPPRESS FREE EXPRESSION.  WHETHER THE PERSON
INVOLVED IS A FAMOUS LARGE-SCALE MAGAZINE DISTRIBUTOR OR A "PRIVATE"
BUSINESSMAN RUNNING A CORNER NEWSSTAND HAS NO RELEVANCE IN ASCERTAINING
WHETHER THE PUBLIC HAS AN INTEREST IN THE ISSUE.  WE HONOR THE
COMMITMENT TO ROBUST DEBATE ON PUBLIC ISSUES, WHICH IS EMBODIED IN THE
FIRST AMENDMENT, BY EXTENDING CONSTITUTIONAL PROTECTION TO ALL
DISCUSSION AND COMMUNICATION INVOLVING MATTERS OF PUBLIC OR GENERAL
CONCERN, WITHOUT REGARD TO WHETHER THE PERSONS INVOLVED ARE FAMOUS OR
ANONYMOUS.  /12/ 

OUR BROTHER WHITE AGREES THAT THE PROTECTION AFFORDED BY THE FIRST
AMENDMENT DEPENDS UPON WHETHER THE ISSUE INVOLVED IN THE PUBLICATION IS
AN ISSUE OF PUBLIC OR GENERAL CONCERN.  HE WOULD, HOWEVER, CONFINE OUR
HOLDING TO THE SITUATION RAISED BY THE FACTS IN THIS CASE, THAT IS,
LIMIT IT TO ISSUES INVOLVING "OFFICIAL ACTIONS OF PUBLIC SERVANTS."  IN
OUR VIEW THAT MIGHT BE MISLEADING.  IT IS CLEAR THAT THERE HAS EMERGED
FROM OUR CASES DECIDED SINCE NEW YORK TIMES THE CONCEPT THAT THE FIRST
AMENDMENT'S IMPACT UPON STATE LIBEL LAWS DERIVES NOT SO MUCH FROM
WHETHER THE PLAINTIFF IS A "PUBLIC OFFICIAL," "PUBLIC FIGURE," OR
"PRIVATE INDIVIDUAL," AS IT DERIVES FROM THE QUESTION WHETHER THE
ALLEGEDLY DEFAMATORY PUBLICATION CONCERNS A MATTER OF PUBLIC OR GENERAL
INTEREST.  SEE T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 531-532,
540 (1970).  IN THAT CIRCUMSTANCE WE THINK THE TIME HAS COME
FORTHRIGHTLY TO ANNOUNCE THAT THE DETERMINANT WHETHER THE FIRST
AMENDMENT APPLIES TO STATE LIBEL ACTIONS IS WHETHER THE UTTERANCE
INVOLVED CONCERNS AN ISSUE OF PUBLIC OR GENERAL CONCERN, ALBEIT LEAVING
THE DELINEATION OF THE REACH OF THAT TERM TO FUTURE CASES.  AS OUR
BROTHER WHITE OBSERVES, THAT IS NOT A PROBLEM IN THIS CASE, SINCE
POLICE ARREST OF A PERSON FOR DISTRIBUTING ALLEGEDLY OBSCENE MAGAZINES
CLEARLY CONSTITUTES AN ISSUE OF PUBLIC OR GENERAL INTEREST.  /13/

   V 

WE TURN THEN TO THE QUESTION TO BE DECIDED.  PETITIONER'S ARGUMENT
THAT THE CONSTITUTION SHOULD BE HELD TO REQUIRE THT THE PRIVATE
INDIVIDUAL PROVE ONLY THAT THE PUBLISHER FAILED TO EXERCISE "REASONABLE
CARE" IN PUBLISHING DEFAMATORY FALSEHOODS PROCEEDS ALONG TWO LINES. 
FIRST, HE ARGUES THAT THE PRIVATE INDIVIDUAL, UNLIKE THE PUBLIC FIGURE,
DOES NOT HAVE ACCESS TO THE MEDIA TO COUNTER THE DEFAMATORY MATERIAL
AND THAT THE PRIVATE INDIVIDUAL, UNLIKE THE PUBLIC FIGURE, HAS NOT
ASSUMED THE RISK OF DEFAMATION BY THRUSTING HIMSELF INTO THE PUBLIC
ARENA.  SECOND, PETITIONER FOCUSES ON THE IMPORTANT VALUES SERVED BY
THE LAW OF DEFAMATION IN PREVENTING AND REDRESSING ATTACKS UPON
REPUTATION. 

WE HAVE RECOGNIZED THE FORCE OF PETITIONER'S ARGUMENTS, TIME, INC.
V. HILL, SUPRA, AT 391, AND WE ADHERE TO THE CAUTION EXPRESSED IN THAT
CASE AGAINST "BLIND APPLICATION" OF THE NEW YORK TIMES STANDARD.  ID.,
AT 390.  ANALYSIS OF THE PARTICULAR FACTORS INVOLVED, HOWEVER,
CONVINCES US THAT PETITIONER'S ARGUMENTS CANNOT BE RECONCILED WITH THE
PURPOSES OF THE FIRST AMENDMENT, WITH OUR CASES, AND WITH THE
TRADITIONAL DOCTRINES OF LIBEL LAW ITSELF.  DRAWING A DISTINCTION
BETWEEN "PUBLIC" AND "PRIVATE" FIGURES MAKES NO SENSE IN TERMS OF THE
FIRST AMENDMENT GUARANTEES.  /14/  THE NEW YORK TIMES STANDARD WAS
APPLIED TO LIBEL OF A PUBLIC OFFICIAL OR PUBLIC FIGURE TO GIVE EFFECT
TO THE AMENDMENT'S FUNCTION TO ENCOURAGE VENTILATION OF PUBLIC ISSUES,
NOT BECAUSE THE PUBLIC OFFICIAL HAS ANY LESS INTEREST IN PROTECTING HIS
REPUTATION THAN AN INDIVIDUAL IN PRIVATE LIFE.  WHILE THE ARGUMENT THAT
PUBLIC FIGURES NEED LESS PROTECTION BECAUSE THEY CAN COMMAND MEDIA
ATTENTION TO COUNTER CRITICISM MAY BE TRUE FOR SOME VERY PROMINENT
PEOPLE, EVEN THEN IT IS THE RARE CASE WHERE THE DENIAL OVERTAKES THE
ORIGINAL CHARGE.  DENIALS, RETRACTIONS, AND CORRECTIONS ARE NOT "HOT"
NEWS, AND RARELY RECEIVE THE PROMINENCE OF THE ORIGINAL STORY.  WHEN
THE PUBLIC OFFICIAL OR PUBLIC FIGURE IS A MINOR FUNCTIONARY, OR HAS
LEFT THE POSITION THAT PUT HIM IN THE PUBLIC EYE, SEE ROSENBLATT V.
BAER, SUPRA, THE ARGUMENT LOSES ALL OF ITS FORCE.  IN THE VAST MAJORITY
OF LIBELS INVOLVING PUBLIC OFFICIALS OR PUBLIC FIGURES, THE ABILITY TO
RESPOND THROUGH THE MEDIA WILL DEPEND ON THE SAME COMPLEX FACTOR ON
WHICH THE ABILITY OF A PRIVATE INDIVIDUAL DEPENDS:  THE UNPREDICTABLE
EVENT OF THE MEDIA'S CONTINUING INTEREST IN THE STORY.  THUS THE
UNPROVED, AND HIGHLY IMPROBABLE, GENERALIZATION THAT AN AS YET
UNDEFINED CLASS OF "PUBLIC FIGURES" INVOLVED IN MATTERS OF PUBLIC
CONCERN WILL BE BETTER ABLE TO RESPOND THROUGH THE MEDIA THAN PRIVATE
INDIVIDUALS ALSO INVOLVED IN SUCH MATTERS SEEMS TOO INSUBSTANTIAL A
REED ON WHICH TO REST A CONSTITUTIONAL DISTINCTION.  FURTHERMORE, IN
FIRST AMENDMENT TERMS, THE CURE SEEMS FAR WORSE THAN THE DISEASE.  IF
THE STATES FEAR THAT PRIVATE CITIZENS WILL NOT BE ABLE TO RESPOND
ADEQUATELY TO PUBLICITY INVOLVING THEM, THE SOLUTION LIES IN THE
DIRECTION OF ENSURING THEIR ABILITY TO RESPOND, RATHER THAN IN STIFLING
PUBLIC DISCUSSION OF MATTERS OF PUBLIC CONCERN.  /15/ 

FURTHER REFLECTION OVER THE YEARS SINCE NEW YORK TIMES WAS DECIDED
PERSUADES US THAT THE VIEW OF THE "PUBLIC OFFICIAL" OR "PUBLIC FIGURE"
AS ASSUMING THE RISK OF DEFAMATION BY VOLUNTARILY THRUSTING HIMSELF
INTO THE PUBLIC EYE BEARS LITTLE RELATIONSHIP EITHER TO THE VALUES
PROTECTED BY THE FIRST AMENDMENT OR TO THE NATURE OF OUR SOCIETY.  WE
HAVE RECOGNIZED THAT "(EXPOSURE OF THE SELF TO OTHERS IN VARYING
DEGREES IS A CONCOMITANT OF LIFE IN A CIVILIZED COMMUNITY."  TIME, INC.
V. HILL, SUPRA, AT 388.  VOLUNTARILY OR NOT, WE ARE ALL "PUBLIC" MEN TO
SOME DEGREE.  CONVERSELY, SOME ASPECTS OF THE LIVES OF EVEN THE MOST
PUBLIC MEN FALL OUTSIDE THE AREA OF MATTERS OF PUBLIC OR GENERAL
CONCERN.  SEE N. 12, SUPRA; GRISWOLD V. CONNECTICUT, 381 U.S. 479
(1965).  /16/  THUS, THE IDEA THAT CERTAIN "PUBLIC" FIGURES HAVE
VOLUNTARILY EXPOSED THEIR ENTIRE LIVES TO PUBLIC INSPECTION, WHILE
PRIVATE INDIVIDUALS HAVE KEPT THEIRS CAREFULLY SHROUDED FROM PUBLIC
VIEW IS, AT BEST, A LEGAL FICTION.  IN ANY EVENT, SUCH A DISTINCTION
COULD EASILY PRODUCE THE PARADOXICAL RESULT OF DAMPENING DISCUSSION OF
ISSUES OF PUBLIC OR GENERAL CONCERN BECAUSE THEY HAPPEN TO INVOLVE
PRIVATE CITIZENS WHILE EXTENDING CONSTITUTIONAL ENCOURAGEMENT TO
DISCUSSION OF ASPECTS OF THE LIVES OF "PUBLIC FIGURES" THAT ARE NOT IN
THE AREA OF PUBLIC OR GENERAL CONCERN.     GENERAL REFERENCES TO THE
VALUES PROTECTED BY THE LAW OF LIBEL CONCEAL IMPORTANT DISTINCTIONS. 
TRADITIONAL ARGUMENTS SUGGEST THAT LIBEL LAW PROTECTS TWO SEPARATE
INTERESTS OF THE INDIVIDUAL:  FIRST, HIS DESIRE TO PRESERVE A CERTAIN
PRIVACY AROUND HIS PERSONALITY FROM UNWARRANTED INTRUSION, AND, SECOND,
A DESIRE TO PRESERVE HIS PUBLIC GOOD NAME AND REPUTATION.  SEE
ROSENBLATT V. BAER, 383 U.S.,AT 92 (STEWART, J., CONCURRING).  THE
INDIVIDUAL'S INTEREST IN PRIVACY-- IN PREVENTING UNWARRANTED INTRUSION
UPON THE PRIVATE ASPECTS OF HIS LIFE-- IS NOT INVOLVED IN THIS CASE, OR
EVEN IN THE CLASS OF CASES UNDER CONSIDERATION, SINCE, BY HYPOTHESIS,
THE INDIVIDUAL IS INVOLVED IN MATTERS OF PUBLIC OR GENERAL CONCERN. 
/17/  IN THE PRESENT CASE, HOWEVER, PETITIONER'S BUSINESS REPUTATION IS
INVOLVED, AND THUS THE RELEVANT INTERESTS PROTECTED BY STATE LIBEL LAW
ARE PETITIONER'S PUBLIC REPUTATION AND GOOD NAME. 

THESE ARE IMPORTANT INTERESTS.  CONSONANT WITH THE LIBEL LAWS OF
MOST OF THE STATES, HOWEVER, PENNSYLVANIA'S LIBEL LAW SUBORDINATES
THESE INTERESTS OF THE INDIVIDUAL IN A NUMBER OF CIRCUMSTANCES.  THUS,
HIGH GOVERNMENT OFFICIALS ARE IMMUNE FROM LIABILITY-- ABSOLUTELY
PRIVILEGED-- EVEN IF THEY PUBLISH DEFAMATORY MATERIAL FROM AN IMPROPER
MOTIVE, WITH ACTUAL MALICE, AND WITH KNOWLEDGE OF ITS FALSITY. 
MONTGOMERY V. PHILADLEPHIA, 392 PA. 178, 140 A.2D 100 (1958).  THIS
ABSOLUTE PRIVILEGE ATTACHES TO JUDGES, ATTORNEYS AT LAW IN CONNECTION
WITH A JUDICIAL PROCEEDING, PARTIES AND WITNESSES TO JUDICIAL
PROCEEDINGS, CONGRESSMEN AND STATE LEGISLATORS, AND HIGH NATIONAL AND
STATE EXECUTIVE OFFICIALS.  RESTATEMENT OF TORTS SECS. 585-592. 
MOREOVER, A CONDITIONAL PRIVILEGE ALLOWS NEWSPAPERS TO REPORT THE FALSE
DEFAMATORY MATERIAL ORIGINALLY PUBLISHED UNDER THE ABSOLUTE PRIVILEGES
LISTED ABOVE, IF DONE ACCURATELY.  SCIANDRA V. LYNETT, 409 PA. 595, 187
A.2D 586 (1963). 

EVEN WITHOUT THE PRESENCE OF A SPECIFIC CONSTITUTIONAL COMMAND,
THEREFORE, PENNSYLVANIA LIBEL LAW RECOGNIZES THAT SOCIETY'S INTEREST IN
PROTECTING INDIVIDUAL REPUTATION OFTEN YIELDS TO OTHER IMPORTANT SOCIAL
GOALS.  IN THIS CASE, THE VITAL NEEDS OF FREEDOM OF THE PRESS AND
FREEDOM OF SPEECH PERSUADE US THAT ALLOWING PRIVATE CITIZENS TO OBTAIN
DAMAGE JUDGMENTS ON THE BASIS OF A JURY DETERMINATION THAT A PUBLISHER
PROBABLY FAILED TO USE REASONABLE CARE WOULD NOT PROVIDE ADEQUATE
"BREATHING SPACE" FOR THESE GREAT FREEDOMS.  REASONABLE CARE IS AN
"ELUSIVE STANDARD" THAT "WOULD PLACE ON THE PRESS THE INTOLERABLE
BURDEN OF GUESSING HOW A JURY MIGHT ASSESS THE REASONABLENESS OF STEPS
TAKEN BY IT TO VERIFY THE ACCURACY OF EVERY REFERENCE TO A NAME,
PICTURE OR PORTRAIT."  TIME, INC. V. HILL, 385 U.S.,AT 389.  FEAR OF
GUESSING WRONG MUST INEVITABLY CAUSE SELF-CENSORSHIP AND THUS CREATE
THE DANGER THAT THE LEGITIMATE UTTERANCE WILL BE DETERRED.  CF. SPEISER
V. RANDALL, 357 U.S. 513, 526 (1958). 

MOREOVER, WE ORDINARILY DECIDE CIVIL LITIGATION BY THE PREPONDERANCE
OF THE EVIDENCE.  INDEED, THE JUDGE INSTRUCTED THE JURY TO DECIDE THE
PRESENT CASE BY THAT STANDARD.  IN THE NORMAL CIVIL SUIT WHERE THIS
STANDARD IS EMPLOYED, "WE VIEW IT AS NO MORE SERIOUS IN GENERAL FOR
THERE TO BE AN ERRONEOUS VERDICT IN THE DEFENDANT'S FAVOR THAN FOR
THERE TO BE AN ERRONEOUS VERDICT IN THE PLAINTIFF'S FAVOR."  IN RE
WINSHIP, 397 U.S. 358, 371 (1970) (HARLAN, J., CONCURRING).  IN LIBEL
CASES, HOWEVER, WE VIEW AN ERRONEOUS VERDICT FOR THE PLAINTIFF AS MOST
SERIOUS.  NOT ONLY DOES IT MULCT THE DEFENDANT FOR AN INNOCENT
MISSTATEMENT-- THE THREE-QUARTER-MILLION-DOLLAR JURY VERDICT IN THIS
CASE COULD REST ON SUCH AN ERROR-- BUT THE POSSIBILITY OF SUCH ERROR,
EVEN BEYOND THE VAGUENESS OF THE NEGLIGENCE STANDARD ITSELF, WOULD
CREATE A STRONG IMPETUS TOWARD SELF-CENSORSHIP, WHICH THE FIRST
AMENDMENT CANNOT TOLERATE.  THESE DANGERS FOR FREEDOM OF SPEECH AND
PRESS LED US TO REJECT THE REASONABLE-MAN STANDARD OF LIABILITY AS
"SIMPLY INCONSISTENT" WITH OUR NATIONAL COMMITMENT UNDER THE FIRST
AMENDMENT WHEN SOUGHT TO BE APPLIED TO THE CONDUCT OF A POLITICAL
CAMPAIGN.  MONITOR PATRIOT CO. V. ROY, 401 U.S. 265, 276 (1971).  THE
SAME CONSIDERATIONS LEAD US TO REJECT THAT STANDARD HERE. 

WE ARE AWARE THAT THE PRESS HAS, ON OCCASION, GROSSLY ABUSED THE
FREEDOM IT IS GIVEN BY THE CONSTITUTION.  ALL MUST DEPLORE SUCH
EXCESSES.  IN AN IDEAL WORLD, THE RESPONSIBILITY OF THE PRESS WOULD
MATCH THE FREEDOM AND PUBLIC TRUST GIVEN IT.  BUT FROM THE EARLIEST
DAYS OF OUR HISTORY, THIS FREE SOCIETY, DEPENDENT AS IT IS FOR ITS
SURVIVAL UPON A VIGOROUS FREE PRESS, HAS TOLERATED SOME ABUSE.  IN
1799, JAMES MADISON MADE THE POINT IN QUOTING (AND ADOPTING) JOHN
MARSHALL'S ANSWER TO TALLEYRAND'S COMPLAINTS ABOUT AMERICAN NEWSPAPERS,
AMERICAN STATE PAPERS, 2 FOREIGN RELATIONS 196 (U.S. CONG. 1832): 

"'AMONG THOSE PRINCIPLES DEEMED SACRED IN AMERICA, AMONG THOSE SACRED
RIGHTS CONSIDERED AS FORMING THE BULWARK OF THEIR LIBERTY, WHICH THE
GOVERNMENT CONTEMPLATES WITH AWFUL REVERENCE AND WOULD APPROACH ONLY
WITH THE MOST CAUTIOUS CIRCUMSPECTION, THERE IS NO ONE OF WHICH THE
IMPORTANCE IS MORE DEEPLY IMPRESSED ON THE PUBLIC MIND THAN THE LIBERTY
OF THE PRESS.  THAT THIS LIBERTY IS OFTEN CARRIED TO EXCESS; THAT IT
HAS SOMETIMES DEGENERATED INTO LICENTIOUSNESS, IS SEEN AND LAMENTED,
BUT THE REMEDY HAS NOT YET BEEN DISCOVERED.  PERHAPS, IT IS AN EVIL
INSEPARABLE FROM THE GOOD WITH WHICH IT IS ALLIED; PERHAPS IT IS A
SHOOT WHICH CANNOT BE STRIPPED FROM THE STALK WITHOUT WOUNDING VITALLY
THE PLANT FORM WHICH IT IS TORN.  HOWEVER DESIRABLE THOSE MEASURES
MIGHT BE WHICH MIGHT CORRECT WITHOUT ENSLAVING THE PRESS, THEY HAVE
NEVER YET BEEN DEVISED IN AMERICA.'"  6 WRITINGS OF JAMES MADISON, 1790
1802, P. 336 (G. HUNT ED. 1906). 

THIS COURT HAS RECOGNIZED THIS IMPERATIVE:  "(TO INSURE THE
ASCERTAINMENT AND PUBLICATION OF THE TRUTH ABOUT PUBLIC AFFAIRS, IT IS
ESSENTIAL THAT THE FIRST AMENDMENT PROTECT SOME ERRONEOUS PUBLICATIONS
AS WELL AS TRUE ONES."  ST. AMANT V. THOMPSON, 390 U.S. 727, 732
(1968).  WE THUS HOLD THAT A LIBEL ACTION, AS HERE, BY A PRIVATE
INDIVIDUAL AGAINST A LICENSED RADIO STATION FOR A DEFAMATORY FALSEHOOD
IN A NEWSCAST RELATING TO HIS INVOLVEMENT IN AN EVENT OF PUBLIC OR
GENERAL CONCERN MAY BE SUSTAINED ONLY UPON CLEAR AND CONVINCING PROOF
THAT THE DEFAMATORY FALSEHOOD WAS PUBLISHED WITH KNOWLEDGE THAT IT WAS
FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR NOT.  /18/
CALCULATED FALSEHOOD, OF COURSE, FALLS OUTSIDE "THE FRUITFUL EXERCISE
OF THE RIGHT OF FREE SPEECH."  GARRISON V. LOUISIANA, 379 U.S. 64, 75
(1964). 

OUR BROTHERS HARLAN AND MARSHALL REJECT THE KNOWING-OR-RECKLESS
FALSEHOOD STANDARD IN FAVOR OF A TEST THAT WOULD REQUIRE, AT LEAST,
THAT THE PERSON DEFAMED ESTABLISH THAT THE PUBLISHER NEGLIGENTLY FAILED
TO ASCERTAIN THE TRUTH OF HIS STORY; THEY WOULD ALSO LIMIT ANY RECOVERY
TO "ACTUAL" DAMAGES.  FOR THE REASONS WE HAVE STATED, THE NEGLIGENCE
STANDARD GIVES INSUFFICIENT BREATHING SPACE TO FIRST AMENDMENT VALUES. 
LIMITING RECOVERY TO ACTUAL DAMAGES HAS THE SAME DEFECTS.  IN THE FIRST
INSTANCE, THAT STANDARD, TOO, LEAVES THE FIRST AMENDMENT INSUFFICIENT
ELBOW ROOM WITHIN WHICH TO FUNCTION.  IT IS NOT SIMPLY THE POSSIBILITY
OF A JUDGMENT FOR DAMAGES THAT RESULTS IN SELF-CENSORSHIP.  THE VERY
POSSIBILITY OF HAVING TO ENGAGE IN LITIGATION, AN EXPENSIVE AND
PROTRACTED PROCESS, IS THREAT ENOUGH TO CAUSE DISCUSSION AND DEBATE TO
"STEER FAR WIDER OF THE UNLAWFUL ZONE"  THEREBY KEEPING PROTECTED
DISCUSSION FROM PUBLIC COGNIZANCE.  SPEISER V. RANDALL, 357 U.S.,AT
526.  CF. BLONDER-TONGUE LABORATORIES, INC. V. UNIVERSITY OF ILLINOIS
FOUNDATION, 402 U.S. 313, 334-339 (1971).  TOO, A SMALL NEWSPAPER
SUFFERS EQUALLY FROM A SUBSTANTIAL DAMAGE AWARD, WHETHER THE LABEL OF
THE AWARD BE "ACTUAL" OR "PUNITIVE." 

THE REAL THRUST OF BROTHERS HARLAN'S AND MARSHALL'S POSITION,
HOWEVER, IS THEIR ASSERTION THAT THEIR PROPOSAL WILL NOT
"CONSTITUTIONALIZE" THE FACTFINDING PROCESS.  BUT THIS CLEARLY IS NOT
THE WAY THEIR TEST WOULD WORK IN PRACTICE.  THEIR APPROACH MEANS ONLY
THAT FACTFINDING WILL SHIFT FROM AN INQUIRY INTO WHETHER THE DEFAMATORY
STATEMENTS WERE KNOWINGLY OR RECKLESSLY UTTERED, AND IF SO, TO AN
INQUIRY WHETHER PLAINTIFF SUFFERED "ACTUAL" DAMAGES.  THIS LATTER
INQUIRY WILL INVOLVE JUDGES EVEN MORE DEEPLY IN FACTFINDING.  WOULD THE
MERE ANNOUNCEMENT BY A STATE LEGISLATURE THAT EMBARRASSMENT AND PAIN
AND SUFFERING ARE MEASURABLE ACTUAL LOSSES MEAN THAT SUCH DAMAGES MAY
BE AWARDED IN LIBEL ACTIONS?  NO MATTER HOW THE PROBLEM IS APPROACHED,
THIS COURT WOULD ULTIMATELY HAVE TO FASHION CONSTITUTIONAL DEFINITIONS
OF "NEGLIGENCE" AND OF "ACTUAL DAMAGES." 

ASIDE FROM THESE PARTICULARIZED CONSIDERATIONS, WE HAVE REPEATEDLY
RECOGNIZED THAT COURTS MAY NOT AVOID AN EXCURSION INTO FACTFINDING IN
THIS AREA SIMPLY BECAUSE IT IS TIME CONSUMING OR DIFFICULT.  WE STATED
IN PENNEKAMP V. FLORIDA, 328 U.S. 331, 335 (1946), THAT: 

     "THE CONSTITUTION HAS IMPOSED UPON THIS COURT FINAL AUTHORITY

  TO DETERMINE THE MEANING AND APPLICATION OF THOSE WORDS OF THAT

  INSTRUMENT WHICH REQUIRE INTERPRETATION TO RESOLVE JUDICIAL

  ISSUES.  WITH THAT RESPONSIBILITY, WE ARE COMPELLED TO EXAMINE

  FOR OURSELVES THE STATEMENTS IN ISSUE AND THE CIRCUMSTANCES UNDER

  WHICH THEY WERE MADE TO SEE WHETHER OR NOT THEY . . . ARE OF A

  CHARACTER WHICH THE PRINCIPLES OF THE FIRST AMENDMENT, AS ADOPTED

  BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, PROTECT." 

  (FOOTNOTE OMITTED.) 

CLEARLY, THEN, THIS COURT HAS AN "OBLIGATION TO TEST CHALLENGED
JUDGMENTS AGAINST THE GUARANTEES OF THE FIRST AND FOURTEENTH
AMENDMENTS," AND IN DOING SO "THIS COURT CANNOT AVOID MAKING AN
INDEPENDENT CONSTITUTIONAL JUDGMENT ON THE FACTS OF THE CASE." 
JACOBELLIS V. OHIO, 378 U.S. 184, 190 (1964).  THE SIMPLE FACT IS THAT
FIRST AMENDMENT QUESTIONS OF "CONSTITUTIONAL FACT" COMPEL THIS COURT'S
DE NOVO REVIEW.  SEE EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 235
(1963); BLACKBURN V. ALABAMA, 361 U.S. 199, 205 N. 5 (1960). 

        VI 

PETITIONER ARGUES THAT THE INSTRUCTIONS ON PUNITIVE DAMAGES EITHER
CURED OR RENDERED HARMLESS THE INSTRUCTIONS PERMITTING AN AWARD OF
GENERAL DAMAGES BASED ON A FINDING OF FAILURE OF WIP TO EXERCISE
REASONABLE CARE.  WE HAVE DOUBTS OF THE MERITS OF THE PREMISE, /19/
BUT EVEN ASSUMING THAT INSTRUCTIONS WERE GIVEN SATISFYING THE STANDARD
OF KNOWING OR RECKLESS FALSITY, THE EVIDENCE WAS INSUFFICIENT TO
SUSTAIN AN AWARD FOR THE PETITIONER UNDER THAT STANDARD.  IN THESE
CASES OUR "DUTY IS NOT LIMITED TO THE ELABORATION OF CONSTITUTIONAL
PRINCIPLES; WE MUST ALSO IN PROPER CASES REVIEW THE EVIDENCE TO MAKE
CERTAIN THAT THOSE PRINCIPLES HAVE BEEN CONSTITUTIONALLY APPLIED."  NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S.,AT 285.  OUR INDEPENDENT ANALYSIS
OF THE RECORD LEADS US TO AGREE WITH THE COURT OF APPEALS THAT NONE OF
THE PROOFS, CONSIDERED EITHER SINGLY OR CUMULATIVELY, SATISFIES THE
CONSTITUTIONAL STANDARD WITH THE CONVINCING CLARITY NECESSARY TO RAISE
A JURY QUESTION WHETHER THE DEFAMATORY FALSEHOODS WERE BROADCAST WITH
KNOWLEDGE THAT THEY WERE FALSE OR WITH RECKLESS DISREGARD OF WHETHER
THEY WERE FALSE OR NOT. 

THE EVIDENCE MOST STRONGLY SUPPORTING PETITIONER IS THAT CONCERNING
HIS VISIT TO WIP'S STUDIO WHERE A PART-TIME NEWSCASTER HUNG UP THE
TELEPHONE WHEN PETITIONER DISPUTED THE NEWSCASTER'S STATEMENT THAT THE
DISTRICT ATTORNEY HAD CHARACTERIZED PETITIONER'S MAGAZINES AS OBSCENE. 
THIS CONTACT OCCURRED, HOWEVER, AFTER ALL BUT ONE OF THE SECOND SERIES
OF BROADCASTS HAD BEEN AIRED.  THE INCIDENT HAS NO PROBATIVE VALUE
INSOFAR AS IT BEARS ON PETITIONER'S CASE AS TO THE FIRST SERIES OF
BROADCASTS.  THAT PORTION OF PETITIONER'S CASE WAS BASED UPON THE
OMISSION FROM THE FIRST TWO BROADCASTS AT 6 AND 6:30 P.M. ON OCTOBER 4
OF THE WORD "ALLEGED" PRECEDING A CHARACTERIZATION OF THE MAGAZINES
DISTRIBUTED BY PETITIONER.  BUT THAT OMISSION WAS CORRECTED WITH THE 8
P.M. BROADCAST AND WAS NOT REPEATED IN THE FIVE BROADCASTS THAT
FOLLOWED.  AND WE AGREE WITH THE ANALYSIS OF THE COURT OF APPEALS THAT
LED THAT COURT, AND LEADS US, TO CONCLUDE THAT THE EPISODE FAILED TO
PROVIDE EVIDENCE SATISFYING THE NEW YORK TIMES STANDARD INSOFAR AS IT
BORE ON PETITIONER'S CASE BASED UPON THE BROADCASTS ON AND AFTER
OCTOBER 21 CONCERNING PETITIONER'S LAWSUIT: 

"ONLY ONE BROADCAST TOOK PLACE AFTER THIS CONVERSATION.  IT IS
ATTACKED ON THE GROUND THAT IT CONTAINS AN INACCURATE STATEMENT
CONCERNING PLAINTIFF'S INJUNCTION ACTION IN THAT IT STATED THAT THE
DISTRICT ATTORNEY CONSIDERED PLAINTIFF'S PUBLICATIONS TO BE SMUT AND
IMMORAL LITERATURE.  THE TRANSCRIPT OF THE TESTIMONY SHOWS THAT
PLAINTIFF'S OWN ATTORNEY, WHEN QUESTIONING DEFENDANT'S REPRESENTATIVE
CONCERNING THE ALLEGEDLY DEFAMATORY PORTION OF THE LAST BROADCAST, SAID
THT HE WAS NOT QUESTIONING ITS 'ACCURACY'.  FURTHERMORE, HIS
EXAMINATION OF THE SAME WITNESS BROUGHT OUT THAT DEFENDANT'S
REPRESENTATIVE CONFIRMED THE STORY WITH THE JUDGE INVOLVED BEFORE THE
BROADCAST WAS MADE.  WE THINK THAT THE EPISODE DESCRIBED FAILED TO
PROVIDE EVIDENCE OF ACTUAL MALICE WITH THE REQUISITE CONVINCING CLARITY
TO CREATE A JURY ISSUE UNDER FEDERAL STANDARDS."  415 F.2D, AT 897. 

PETITIONER ARGUES FINALLY THAT WIP'S FAILURE TO COMMUNICATE WITH HIM
TO LEARN HIS SIDE OF THE CASE AND TO OBTAIN A COPY OF THE MAGAZINE FOR
EXAMINATION, SUFFICED TO SUPPORT A VERDICT UNDER THE NEW YORK TIMES
STANDARD.  BUT OUR "CASES ARE CLEAR THAT RECKLESS CONDUCT IS NOT
MEASURED BY WHETHER A REASONABLY PRUDENT MAN WOULD HAVE PUBLISHED, OR
WOULD HAVE INVESTIGATED BEFORE PUBLISHING.  THERE MUST BE SUFFICIENT
EVIDENCE TO PERMIT THE CONCLUSION THAT THE DEFENDANT IN FACT
ENTERTAINED SERIOUS DOUBTS AS TO THE TRUTH OF HIS PUBLICATION."  ST.
AMANT V. THOMPSON, 390 U.S.,AT 731.  RESPONDENT HERE RELIED ON
INFORMATION SUPPLIED BY POLICE OFFICIALS.  FOLLOWING PETITIONER'S
COMPLAINT ABOUT THE ACCURACY OF THE BROADCASTS, WIP CHECKED ITS LAST
REPORT WITH THE JUDGE WHO PRESIDED IN THE CASE.  WHILE WE MAY ASSUME
THAT THE DISTRICT COURT CORRECTLY HELD TO BE DEFAMATORY RESPONDENT'S
CHARACTERIZATIONS OF PETITIONER'S BUSINESS AS "THE SMUT LITERATURE
RACKET," AND OF THOSE ENGAGED IN IT AS "GIRLIE-BOOK PEDDLERS," THERE IS
NO EVIDENCE IN THE RECORD TO SUPPORT A CONCLUSION THAT RESPONDENT "IN
FACT ENTERTAINED SERIOUS DOUBTS AS TO THE TRUTH" OF ITS REPORTS. 
       AFFIRMED. 

/1/  SEE, E.G., ASSOCIATED PRESS V. WALKER, 388 U.S. 130 (1967)
(RETIRED ARMY GENERAL AGAINST A WIRE SERVICE); CURTIS PUBLISHING CO. V.
BUTTS, 388 U.S. 130 (1967) (FORMER FOOTBALL COACH AGAINST PUBLISHER OF
MAGAZINE); BECKLEY NEWSPAPERS CORP. V. HANKS, 389 U.S. 81 (1967) (COURT
CLERK AGAINST NEWSPAPER); GREENBELT PUBLISHING ASSN. V. BRESLER, 398
U.S. 6 (1970) (STATE REPRESENTATIVE AND REAL ESTATE DEVELOPER AGAINST
PUBLISHER OF NEWSPAPER); OCALA STAR-BANNER CO. V. DAMRON, 401 U.S. 295
(1971) (DEFEATED CANDIDATE FOR TAX ASSESSOR AGAINST PUBLISHER OF
NEWSPAPER); MONITOR PATRIOT CO. V. ROY, 401 U.S. 265 (1971) (CANDIDATE
FOR UNITED STATES SENATE AGAINST PUBLISHER OF NEWSPAPER); TIME, INC. V.
PAPE, 401 U.S. 279 (1971) (POLICE OFFICIAL AGAINST PUBLISHER OF
MAGAZINE).  HOWEVER, ROSENBLATT V. BAER, 383 U.S. 75 (1966), INVOLVED
AN ACTION AGAINST A NEWSPAPER COLUMNIST BY A FORMER COUNTY RECREATION
AREA SUPERVISOR; ST. AMANT V. THOMPSON, 390 U.S. 727 (1968), INVOLVED
AN ACTION OF A DEPUTY SHERIFF AGAINST A DEFEATED CANDIDATE FOR THE
UNITED STATES SENATE; AND LINN V. PLANT GUARD WORKERS, 383 U.S. 53
(1966), INVOLVED AN ACTION BY AN OFFICIAL OF AN EMPLOYER AGAINST A
LABOR UNION. 

GARRISON V. LOUISIANA, 379 U.S. 64 (1964), HELD THAT THE NEW YORK
TIMES STANDARD MEASURED ALSO THE CONSTITUTIONAL RESTRICTION UPON STATE
POWER TO IMPOSE CRIMINAL SANCTIONS FOR CRITICISM OF THE OFFICIAL
CONDUCT OF PUBLIC OFFICIALS.  THE TIMES STANDARD OF PROOF HAS ALSO BEEN
REQUIRED TO SUPPORT THE DISMISSAL OF A PUBLIC SCHOOL TEACHER BASED ON
FALSE STATEMENTS MADE BY THE TEACHER IN DISCUSSING ISSUES OF PUBLIC
IMPORTANCE.  PICKERING V. BOARD OF EDUCATION, 391 U.S. 563 (1968).  THE
SAME TEST WAS APPLIED TO SUITS FOR INVASION OF PRIVACY BASED ON FALSE
STATEMENTS WHERE, AGAIN, A MATTER OF PUBLIC INTEREST WAS INVOLVED. 
TIME, INC. V. HILL, 385 U.S. 374 (1967).  THE OPINION IN THAT CASE
EXPRESSLY RESERVED THE QUESTION PRESENTED HERE WHETHER THE TEST APPLIED
IN A LIBEL ACTION BROUGHT BY A PRIVATE INDIVIDUAL.  ID., AT 391. 

/2/  THIS TERM IS FROM WARREN & BRANDEIS, THE RIGHT TO PRIVACY, 4
HARV.L.REV.  193, 214 (1890).  OUR DISCUSSION OF MATTERS OF "PUBLIC OR
GENERAL INTEREST" APPEARS IN PART IV, INFRA, OF THIS OPINION. 

/3/  PETITIONER DOES NOT QUESTION THAT THE FIRST AMENDMENT
GUARANTEES OF FREEDOM OF SPEECH AND FREEDOM OF THE PRESS APPLY TO
RESPONDENT'S NEWSCASTS. 

/4/  AT TRIAL, CAPTAIN FERGUSON TESTIFIED THAT HIS DEFINITION OF
OBSCENITY WAS "ANYTIME THE PRIVATE PARTS IS SHOWING OF THE FEMALE OR
THE PRIVATE PARTS IS SHOWN OF MALES." 

/5/  SEVERAL MORE NEWSSTAND OPERATORS WERE ARRESTED BETWEEN OCTOBER
1 AND OCTOBER 4. 

/6/  THE RECORD NEITHER CONFIRMS NOR REFUTES PETITIONER'S CONTENTION
THAT HIS ARREST WAS FORTUITOUS.  NOR DOES THE RECORD REFLECT WHETHER OR
NOT PETITIONER'S MAGAZINES WERE THE SUBJECT EITHER OF THE ORIGINAL
CITIZENS' COMPLAINTS OR OF THE INITIAL POLICE PURCHASES. 

/7/  THE COMPLAINT NAMED AS DEFENDANTS THE PUBLISHERS OF TWO
NEWSPAPERS, A TELEVISION STATION, THE CITY OF PHILADELPHIA, AND THE
DISTRICT ATTORNEY, BUT NOT RESPONDENT WIP.  THE PLAINTIFFS WERE
PETITIONER, THE PARTNERSHIP OF HIMSELF AND HIS WIFE WHICH CARRIED ON
THE BUSINESS, AND THE PUBLISHER OF THE NUDIST MAGAZINES THAT HE
DISTRIBUTED. 

/8/  THE TEXT OF THE FINAL BROADCAST READ AS FOLLOWS: 

"U.S. DISTRICT JUDGE JOHN LORD TOLD WIP NEWS JUST BEFORE AIRTIME
THAT IT MAY BE ANOTHER WEEK BEFORE HE WILL BE ABLE TO RENDER A DECISION
AS TO WHETHER HE HAS JURISDICTION IN THE CASE OF TWO PUBLISHERS AND A
DISTRIBUTOR WHO WISH TO RESTRAIN THE D.A.'S OFFICE, THE POLICE CHIEF, A
TV STATION AND THE BULLETIN FOR EITHER MAKING ALLEGED RAIDS OF THEIR
PUBLICATIONS, CONSIDERED SMUT AND IMMORAL LITERATURE BY THE DEFENDANTS
NAMED, OR PUBLICIZING THAT THEY ARE IN THAT CATEGORY.  JUDGE LORD THEN
WILL BE IN A POSITION TO RULE ON INJUNCTION PROCEEDINGS ASKED BY THE
PUBLISHERS AND DISTRIBUTOR CLAIMING THE LOSS OF BUSINESS IN THEIR
OPERATIONS." 

/9/  THE REFERENCE HERE, OF COURSE, IS TO COMMON-LAW "MALICE," NOT
TO THE CONSTITUTIONAL STANDARD OF NEW YORK TIMES CO. V. SULLIVAN,
SUPRA.  SEE N. 18, INFRA. 

/10/  PA. STAT. ANN., TIT. 12, SEC. 1584A (SUPP. 1971) PROVIDES: 

"(1) IN AN ACTION FOR DEFAMATION, THE PLAINTIFF HAS THE BURDEN OF
PROVING, WHEN THE ISSUE IS PROPERLY RAISED: 

"(A) THE DEFAMATORY CHARACTER OF THE COMMUNICATION; 

"(B) ITS PUBLICATION BY THE DEFENDANT; 

"(C) ITS APPLICATION TO THE PLAINTIFF; 

"(D) THE RECIPIENT'S UNDERSTANDING OF ITS DEFAMATORY MEANING; 

"(E) THE RECIPIENT'S UNDERSTANDING OF IT AS INTENDED TO BE APPLIED
TO THE PLAINTIFF; 

"(F) SPECIAL HARM RESULTING TO THE PLAINTIFF FROM ITS PUBLICATION; 

"(G) ABUSE OF A CONDITIONALLY PRIVILEGED OCCASION. 

"(2) IN AN ACTION FOR DEFAMATION, THE DEFENDANT HAS THE BURDEN OF
PROVING, WHEN THE ISSUE IS PROPERLY RAISED: 

"(A) THE TRUTH OF THE DEFAMATORY COMMUNICATION; 

"(B) THE PRIVILEGED CHARACTER OF THE OCCASION ON WHICH IT WAS
PUBLISHED; 

"(C) THE CHARACTER OF THE SUBJECT MATTER OF DEFAMATORY COMMENT AS OF
PUBLIC CONCERN." 

SEE RESTATEMENT OF TORTS SEC. 613. 

/11/  FOR EXAMPLE, THE PUBLIC'S INTEREST IN THE PROVOCATIVE SPEECH
THAT WAS MADE DURING THE TENSE EPISODE ON THE CAMPUS OF THE UNIVERSITY
OF MISSISSIPPI WOULD CERTAINLY HAVE BEEN THE SAME IN ASSOCIATED PRESS
V. WALKER, N. 1, SUPRA, IF THE SPEAKER HAD BEEN AN ANONYMOUS STUDENT
AND NOT A WELL-KNOWN RETIRED ARMY GENERAL.  WALKER ALSO ILLUSTRATES
ANOTHER ANOMALY OF FOCUSING ANALYSIS ON THE PUBLIC "FIGURE" OR PUBLIC
"OFFICIAL" STATUS OF THE INDIVIDUAL INVOLVED.  GENERAL WALKER'S FAME
STEMMED FROM EVENTS COMPLETELY UNCONNECTED WITH THE EPISODE IN
MISSISSIPPI.  IT SEEMS PARTICULARLY UNSATISFACTORY TO DETERMINE THE
EXTENT OF FIRST AMENDMENT PROTECTION ON THE BASIS OF FACTORS COMPLETELY
UNRELATED TO THE NEWSWORTHY EVENTS BEING REPORTED.  SEE ALSO GREENBELT
PUBLISHING ASSN. V. BRESLER, 398 U.S. 6 (1970). 

/12/  WE ARE NOT TO BE UNDERSTOOD AS IMPLYING THAT NO AREA OF A
PERSON'S ACTIVITIES FALLS OUTSIDE THE AREA OF PUBLIC OR GENERAL
INTEREST.  WE EXPRESSLY LEAVE OPEN THE QUESTION OF WHAT CONSTITUTIONAL
STANDARD OF PROOF, IF ANY, CONTROLS THE ENFORCEMENT OF STATE LIBEL LAWS
FOR DEFAMATORY FALSEHOODS PUBLISHED OR BROADCAST BY NEWS MEDIA ABOUT A
PERSON'S ACTIVITIES NOT WITHIN THE AREA OF PUBLIC OR GENERAL INTEREST. 

WE ALSO INTIMATE NO VIEW ON THE EXTENT OF CONSTITUTIONAL PROTECTION,
IF ANY, FOR PURELY COMMERCIAL COMMUNICATIONS MADE IN THE COURSE OF
BUSINESS.  SEE VALENTINE V. CHRESTENSEN, 316 U.S. 52 (1942).  COMPARE
BREARD V. ALEXANDRIA, 341 U.S. 622 (1951), WITH MARTIN V. STRUTHERS,
319 U.S. 141 (1943).  BUT SEE NEW YORK TIMES CO. V. SULLIVAN, 376
U.S.,AT 265-266; LINN V. PLANT GUARD WORKERS, 383 U.S. 53 (1966). 

/13/  OUR BROTHER WHITE STATES IN HIS OPINION:  "(THE FIRST
AMENDMENT GIVES . . . A PRIVILEGE TO REPORT . . . THE OFFICIAL ACTIONS
OF PUBLIC SERVANTS IN FULL DETAIL, WITH NO REQUIREMENT THAT . . . THE
PRIVACY OF AN INDIVIDUAL INVOLVED IN . . . THE OFFICIAL ACTION BE
SPARED FROM PUBLIC VIEW."  POST, AT 62.  THIS SEEMS VERY BROAD.  IT
IMPLIES A PRIVILEGE TO REPORT, FOR EXAMPLE, SUCH CONFIDENTIAL RECORDS
AT THOSE OF JUVENILE COURT PROCEEDINGS. 

/14/  SEE UNITED MEDICAL LABORATORIES, INC. V. COLUMBIA BROADCASTING
SYSTEM, INC., 404 F.2D 706 (CA9 1968), CERT. DENIED, 394 U.S. 921
(1969); TIME, INC. V. MCLANEY, 406 F.2D 565 (CA5), CERT. DENIED, 395
U.S. 922 (1969); BON AIR HOTEL, INC. V. TIME, INC., 426 F.2D 858, 861
N. 4, AND CASES CITED THEREIN (CA5 1970).  SEE GENERALLY COHEN, A NEW
NICHE FOR THE FAULT PRINCIPLE:  A FORTHCOMING NEWSWORTHINESS PRIVILEGE
IN LIBEL CASES?, 18 U.C.L.A.L.REV.  371 (1970); KALVEN, THE REASONABLE
MAN AND THE FIRST AMENDMENT:  HILL, BUTTS, AND WALKER, 1967
SUP.CT.REV.  267; NOTE, PUBLIC OFFICIAL AND ACTUAL MALICE STANDARDS:
THE EVOLUTION OF NEW YORK TIMES CO. V. SULLIVAN, 56 IOWA L.REV.  393,
398-400 (1970); NOTE, THE SCOPE OF FIRST AMENDMENT PROTECTION FOR GOOD
FAITH DEFAMATORY ERROR, 75 YALE L.J. 642 (1966). 

/15/  SOME STATES HAVE ADOPTED RETRACTION STATUTES OR RIGHT-OF-REPLY
STATUTES.  SEE DONNNELLY, THE RIGHT OF REPLY:  AN ALTERNATIVE TO AN
ACTION FOR LIBEL, 34 VA.L.REV.  867 (1948); NOTE, VINDICATION OF THE
REPUTATION OF A PUBLIC OFFICIAL, 80 HARV.L.REV.  1730 (1967).  CF. RED
LION BROADCASTING CO. V. FCC, 395 U.S. 367 (1969). 

ONE WRITER, IN ARGUING THAT THE FIRST AMENDMENT ITSELF SHOULD BE
READ TO GUARANTEE A RIGHT OF ACCESS TO THE MEDIA NOT LIMITED TO A RIGHT
TO RESPOND TO DEFAMATORY FALSEHOODS, HAS SUGGESTED SEVERAL WAYS THE LAW
MIGHT ENCOURAGE PUBLIC DISCUSSION.  BARRON, ACCESS TO THE PRESS-- NEW
FIRST AMENDMENT RIGHT, 80 HARV.L.REV.  1641, 1666-1678 (1967).  IT IS
IMPORTANT TO RECOGNIZE THAT THE PRIVATE INDIVIDUAL OFTEN DESIRES PRESS
EXPOSURE EITHER FOR HIMSELF, HIS IDEAS, OR HIS CAUSES.  CONSTITUTIONAL
ADJUDICATION MUST TAKE INTO ACCOUNT THE INDIVIDUAL'S INTEREST IN ACCESS
TO THE PRESS AS WELL AS THE INDIVIDUAL'S INTEREST IN PRESERVING HIS
REPUTATION, EVEN THOUGH LIBEL ACTIONS BY THEIR NATURE ENCOURAGE A
NARROW VIEW OF THE INDIVIDUAL'S INTEREST SINCE THEY FOCUS ONLY ON
SITUATIONS WHERE THE INDIVIDUAL HAS BEEN HARMED BY UNDESIRED PRESS
ATTENTION.  A CONSTITUTIONAL RULE THAT DETERS THE PRESS FROM COVERING
THE IDEAS OR ACTIVITIES OF THE PRIVATE INDIVIDUAL THUS CONCEIVES THE
INDIVIDUAL'S INTEREST TOO NARROWLY. 

/16/  THIS IS NOT THE LESS TRUE BECAUSE THE AREA OF PUBLIC CONCERN
IN THE CASES OF CANDIDATES FOR PUBLIC OFFICE AND OF ELECTED PUBLIC
OFFICIALS IS BROAD.  SEE MONITOR PATRIOT CO. V. ROY, 401 U.S. 265
(1971). 

/17/  OUR BROTHERS HARLAN AND MARSHALL WOULD NOT LIMIT THE
APPLICATION OF THE FIRST AMENDMENT TO PRIVATE LIBELS INVOLVING ISSUES
OF GENERAL OR PUBLIC INTEREST.  THEY WOULD HOLD THAT THE AMENDMENT
COVERS ALL PRIVATE LIBELS AT LEAST WHERE STATE LAW PERMITS THE DEFENSE
OF TRUTH.  THE COURT HAS NOT YET HAD OCCASION TO CONSIDER THE IMPACT OF
THE FIRST AMENDMENT ON THE APPLICATION OF STATE LIBEL LAWS TO LIBELS
WHERE NO ISSUE OF GENERAL OR PUBLIC INTEREST IS INVOLVED.  SEE N. 1,
SUPRA.  HOWEVER, GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965),
RECOGNIZED A CONSTITUTIONAL RIGHT TO PRIVACY AND AT LEAST ONE
COMMENTATOR HAS DISCUSSED THE RELATION OF THAT RIGHT TO THE FIRST
AMENDMENT.  EMERSON, SUPRA, AT 544-562.  SINCE ALL AGREE THAT THIS CASE
INVOLVES AN ISSUE OF PUBLIC OR GENERAL INTEREST, WE HAVE NO OCCASION TO
DISCUSS THAT RELATIONSHIP.  SEE N. 12, SUPRA.  WE DO NOT, HOWEVER,
SHARE THE DOUBTS OF OUR BROTHERS HARLAN AND MARSHALL THAT COURTS WOULD
BE UNABLE TO IDENTIFY INTERESTS IN PRIVACY AND DIGNITY.  THE TASK MAY
BE DIFFICULT BUT NOT MORE SO THAN OTHER TASKS IN THIS FIELD. 

/18/  AT ORAL ARGUMENT PETITIONER ARGUED THAT "THE LITTLE MAN CAN'T
SHOW ACTUAL MALICE.  HOW CAN GEORGE ROSENBLOOM SHOW THAT THERE WAS
ACTUAL MALICE IN METROMEDIA?  THEY NEVER HEARD OF HIM BEFORE."  TR. OF
ORAL ARG., DEC. 8, 1970, P. 39.  BUT ILL WILL TOWARD THE PLAINTIFF, OR
BAD MOTIVES, ARE NOT ELEMENTS OF THE NEW YORK TIMES STANDARD.  THAT
STANDARD REQUIRES ONLY THAT THE PLAINTIFF PROVE KNOWING OR RECKLESS
FALSITY.  THAT BURDEN, AND NO MORE, IS THE PLAINTIFF'S WHETHER "PUBLIC
OFFICIAL," "PUBLIC FIGURE," OR "LITTLE MAN."  IT MAY BE THAT JURY
INSTRUCTIONS THAT ARE COUCHED ONLY IN TERMS OF KNOWING OR RECKLESS
FALSITY, AND OMIT REFERENCE TO "ACTUAL MALICE," WOULD FURTHER A PROPER
APPLICATION OF THE NEW YORK TIMES STANDARD TO THE EVIDENCE. 

/19/  THE INSTRUCTIONS AUTHORIZED AN AWARD OF PUNITIVE DAMAGES UPON
A FINDING THAT A FALSEHOOD "AROSE FROM A BAD MOTIVE OR . . . THAT IT
WAS PUBLISHED WITH RECKLESS INDIFFERENCE TO THE TRUTH . . . PUNITIVE
DAMAGES ARE AWARDED AS A DETERRENT FROM FUTURE CONDUCT OF THE SAME
SORT."  APP. 333A.  THE SUMMATION OF PETITIONER'S COUNSEL CONCEDED THAT
RESPONDENT HARBORED NO ILL-WILL TOWARD PETITIONER, BUT, FOLLOWING THE
SUGGESTION OF THE INSTRUCTIONS THAT PUNITIVE DAMAGES ARE "'SMART'
MONEY," APP. 313A, ARGUED THAT THEY SHOULD BE ASSESSED BECAUSE
"(RESPONDENT) MUST BE CAREFUL THE WAY THEY IMPART NEWS INFORMATION AND
YOU CAN PUNISH THEM IF THEY WEREN'T BECAUSE YOU COULD SAY THAT WAS
MALICIOUS."  IBID.  THIS WAS AN OBVIOUS INVITATION BASED ON THE
INSTRUCTIONS TO AWARD PUNITIVE DAMAGES FOR CARELESSNESS.  THUS THE JURY
WAS ALLOWED, AND EVEN ENCOURAGED, TO FIND MALICE AND AWARD PUNITIVE
DAMAGES MERELY ON THE BASIS OF NEGLIGENCE AND BAD MOTIVE. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING IN THE JUDGMENT. 

I CONCUR IN THE JUDGMENT OF THE COURT FOR THE REASONS STATED IN MY
CONCURRING OPINION IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 293
(1964), IN MY CONCURRING AND DISSENTING OPINION IN CURTIS PUBLISHING
CO. V. BUTTS, 388 U.S. 130, 170 (1967), AND IN MR. JUSTICE DOUGLAS'
CONCURRING OPINION IN GARRISON V. LOUISIANA, 379 U.S. 64, 80 (1964).  I
AGREE OF COURSE THAT FIRST AMENDMENT PROTECTION EXTENDS TO "ALL
DISCUSSION AND COMMUNICATION INVOLVING MATTERS OF PUBLIC OR GENERAL
CONCERN, WITHOUT REGARD TO WHETHER THE PERSONS INVOLVED ARE FAMOUS OR
ANONYMOUS."  ANTE, AT 44.  HOWEVER, IN MY VIEW, THE FIRST AMENDMENT
DOES NOT PERMIT THE RECOVERY OF LIBEL JUDGMENTS AGAINST THE NEWS MEDIA
EVEN WHEN STATEMENTS ARE BROADCAST WITH KNOWLEDGE THEY ARE FALSE.  AS I
STATED IN CURTIS PUBLISHING CO. V. BUTTS, SUPRA, "(IT IS TIME FOR THIS
COURT TO ABANDON NEW YORK TIMES CO. V. SULLIVAN AND ADOPT THE RULE TO
THE EFFECT THAT THE FIRST AMENDMENT WAS INTENDED TO LEAVE THE PRESS
FREE FROM THE HARASSMENT OF LIBEL JUDGMENTS."  ID., AT 172.     MR.
JUSCTICE WHITE, CONCURRING IN THE JUDGMENT. 

I 

UNDER EXISTING LAW THE FIRST AMENDMENT IS DEEMED TO PERMIT
RECOVERIES FOR DAMAGING FALSEHOODS PUBLISHED ABOUT PUBLIC OFFICIALS OR
PUBLIC FIGURES ONLY IF THE DEFAMATION IS KNOWINGLY OR RECKLESSLY
FALSE.  BUT UNTIL TODAY THE FIRST AMENDMENT HAS NOT BEEN THOUGHT TO
PREVENT CITIZENS WHO ARE NEITHER PUBLIC OFFICIALS NOR PUBLIC FIGURES
FROM RECOVERING DAMAGES FOR DEFAMATION UPON PROVING PUBLICATION OF A
FALSE STATEMENT INJURIOUS TO THEIR REPUTATION.  THERE HAS BEEN NO
NECESSITY TO SHOW DELIBERATE FALSEHOOD, RECKLESSNESS, OR EVEN
NEGLIGENCE. 

THE COURT HAS NOW DECIDED THAT THE FIRST AMENDMENT REQUIRES FURTHER
RESTRICTIONS ON STATE DEFAMATION LAWS.  MR. JUSTICE BRENNAN AND TWO
OTHER MEMBERS OF THE COURT WOULD REQUIRE PROOF OF KNOWING OR RECKLESS
MISREPRESENTATION OF THE FACTS WHENEVER THE PUBLICATION CONCERNS A
SUBJECT OF LEGITIMATE PUBLIC INTEREST, EVEN THOUGH THE TARGET IS A
"PRIVATE" CITIZEN.  ONLY RESIDUAL AREAS WOULD REMAIN IN WHICH A LOWER
DEGREE OF PROOF WOULD OBTAIN. 

THREE OTHER MEMBERS OF THE COURT ALSO AGREE THAT PRIVATE REPUTATION
HAS ENJOYED TOO MUCH PROTECTION AND THE MEDIA TOO LITTLE.  BUT IN THE
INTEREST OF PROTECTING REPUTATION, THEY WOULD NOT ROLL BACK STATE LAWS
SO FAR.  THEY WOULD INTERPRET THE FIRST AMENDMENT AS PROSCRIBING
LIABILITY WITHOUT FAULT AND WOULD EQUATE NON-NEGLIGENT FALSEHOOD WITH
FAULTLESS CONDUCT.  THE BURDEN OF THE DAMAGING LIE WOULD BE SHIFTED
FROM THE MEDIA TO THE PRIVATE CITIZEN UNLESS THE LATTER COULD PROVE
NEGLIGENCE OR SOME HIGHER DEGREE OF FAULT.  THEY WOULD ALSO DRASTICALLY
LIMIT THE AUTHORITY OF THE STATES TO AWARD COMPENSATORY AND PUNITIVE
DAMAGES FOR INJURY TO REPUTATION. 

MR. JUSTICE BLACK, CONSISTENTLY WITH THE VIEWS THAT HE AND MR.
JUSTICE DOUGLAS HAVE LONG HELD, FINDS NO ROOM IN THE FIRST AMENDMENT
FOR ANY DEFAMATION RECOVERY WHATSOEVER. 

GIVEN THIS SPECTRUM OF PROPOSED RESTRICTIONS ON STATE DEFAMATION
LAWS AND ASSUMING THAT MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS WILL
CONTINUE IN FUTURE CASES TO SUPPORT THE SEVEREST OF THE RESTRICTIONS,
IT WOULD SEEM THAT AT LEAST FIVE MEMBERS OF THE COURT WOULD SUPPORT
EACH OF THE FOLLOWING RULES: 

FOR PUBLIC OFFICERS AND PUBLIC FIGURES TO RECOVER FOR DAMAGE TO
THEIR REPUTATIONS FOR LIBELOUS FALSEHOODS, THEY MUST PROVE EITHER
KNOWING OR RECKLESS DISREGARD OF THE TRUTH.  ALL OTHER PLAINTIFFS MUST
PROVE AT LEAST NEGLIGENT FALSEHOOD, BUT IF THE PUBLICATION ABOUT THEM
WAS IN AN AREA OF LEGITIMATE PUBLIC INTEREST, THEN THEY TOO MUST PROVE
DELIBERATE OR RECKLESS ERROR.  IN ALL ACTIONS FOR LIBEL OR SLANDER,
ACTUAL DAMAGES MUST BE PROVED, AND AWARDS OF PUNITIVE DAMAGES WILL BE
STRICTLY LIMITED. 

       II 

FOR MYSELF, I CANNOT JOIN ANY OF THE OPINIONS FILED IN THIS CASE. 
EACH OF THEM DECIDES BROADER CONSTITUTIONAL ISSUES AND DISPLACES MORE
STATE LIBEL LAW THAN IS NECESSARY FOR THE DECISION IN THIS CASE.  AS I
HAVE SAID, MR. JUSTICE BRENNAN WOULD EXTEND THE PRIVILEGE ENUNCIATED IN
NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964), TO PUBLICATIONS
UPON ANY "SUBJECT OF PUBLIC OR GENERAL INTEREST.  SEE ANTE, AT 43.  HE
WOULD THEREBY EXTEND THE CONSTITUTIONAL PROTECTION TO FALSE AND
DAMAGING, BUT NONMALICIOUS, PUBLICATIONS ABOUT SUCH MATTERS AS THE
HEALTH AND ENVIRONMENTAL HAZARDS OF WIDELY USED MANUFACTURED PRODUCTS,
THE MENTAL AND EMOTIONAL STABILITY OF EXECUTIVES OF BUSINESS
ESTABLISHMENTS, AND THE RACIAL AND RELIGIOUS PREJUDICES OF MANY GROUPS
AND INDIVIDUALS ALL OF THESE ARE, OF COURSE, SUBJECTS OF REAL CONCERN,
AND ARGUMENTS FOR PLACING THEM WITHIN THE SCOPE OF NEW YORK TIMES ARE
BY NO MEANS FRIVOLOUS. 

FOR MR. JUSTICE MARSHALL AND MR. JUSTICE HARLAN, MR. JUSTICE
BRENNAN'S OPINION IS BOTH TOO SEVERE AND TOO LIMITED.  THEY WOULD MAKE
MORE SWEEPING INCURSIONS INTO STATE TORT LAW BUT PURPORTEDLY WITH LESS
DESTRUCTIVE WEAPONS.  THEY WOULD PERMIT SUIT BY SOME PLAINTIFFS BARRED
UNDER MR. JUSTICE BRENNAN'S OPINION, BUT WOULD REQUIRE ALL PLAINTIFFS
TO PROVE AT LEAST NEGLIGENCE BEFORE ANY RECOVERY WOULD BE ALLOWED. 

I PREFER AT THIS JUNCTURE NOT TO PROCEED ON SUCH A BROAD FRONT.  I
AM QUITE SURE THAT NEW YORK TIMES CO. V. SULLIVAN WAS THE WISER COURSE,
BUT I AM UNAWARE THAT STATE LIBEL LAWS WITH RESPECT TO PRIVATE CITIZENS
HAVE PROVED A HAZARD TO THE EXISTENCE OR OPERATIONS OF THE
COMMUNICATIONS INDUSTRY IN THIS COUNTRY.  SOME MEMBERS OF THE COURT
SEEM HAUNTED BY FEARS OF SELF-CENSORSHIP BY PRESS AND OF DAMAGE
JUDGMENTS THAT WILL THREATEN ITS FINANCIAL HEALTH.  BUT TECHNOLOGY HAS
IMMEASURABLY INCREASED THE POWER OF THE PRESS TO DO BOTH GOOD AND
EVIL.  VAST COMMUNICATION COMBINES HAVE BEEN BUILT INTO PROFITABLE
VENTURES.  MY INTEREST IS NOT IN PROTECTING THE TREASURIES OF
COMMUNICATORS BUT IN IMPLEMENTING THE FIRST AMENDMENT BY INSURING THAT
EFFECTIVE COMMUNICATION WHICH IS ESSENTIAL TO THE CONTINUED FUNCTIONING
OF OUR FREE SOCIETY.  I AM NOT AWARE THAT SELF-CENSORSHIP HAS CAUSED
THE PRESS TO TREAD TOO GINGERLY IN REPORTING "NEWS" CONCERNING PRIVATE
CITIZENS AND PRIVATE AFFAIRS OR THAT THE REPUTATION OF PRIVATE CITIZENS
HAS RECEIVED INORDINATE PROTECTION FROM FALSEHOOD.  I AM NOT CONVINCED
THAT WE MUST FASHION A CONSTITUTIONAL RULE PROTECTING A WHOLE RANGE OF
DAMAGING FALSEHOODS AND SO SHIFT THE BURDEN FROM THOSE WHO PUBLISH TO
THOSE WHO ARE INJURED. 

I SAY THIS WITH CONSIDERABLE DEFERENCE SINCE ALL MY BRETHREN HAVE
CONTRARY VIEWS.  BUT I WOULD NOT NULLIFY A MAJOR PART OF STATE LIBEL
LAW UNTIL WE HAVE GIVEN THE MATTER THE MOST THOROUGH CONSIDERATION AND
CAN ARTICULATE SOME SOLID FIRST AMENDMENT GROUNDS BASED ON EXPERIENCE
AND OUR PRESENT CONDITION.  AS IT IS, TODAY'S EXPERIMENT RESTS ALMOST
ENTIRELY ON THEORETICAL GROUNDS AND REPRESENTS A PURELY INTELLECTUAL
DERIVATION FROM WHAT ARE THOUGH TO BE IMPORTANT PRINCIPLES OF TORT LAW
AS VIEWED IN THE LIGHT OF THE PRIMACY OF THE WRITTEN AND SPOKEN WORD. 

THIS CASE LENDS ITSELF TO MORE LIMITED ADJUDICATION.  NEW YORK TIMES
CO. V. SULLIVAN ITSELF MADE CLEAR THAT DISCUSSION OF THE OFFICIAL
ACTIONS OF PUBLIC SERVANTS SUCH AS THE POLICE IS CONSTITUTIONALLY
PRIVILEGED.  "THE RIGHT OF FREE PUBLIC DISCUSSION OF THE STEWARDSHIP OF
PUBLIC OFFICIALS" IS, IN THE LANGUAGE OF THAT CASE, "A FUNDAMENTAL
PRINCIPLE OF THE AMERICAN FORM OF GOVERNMENT."  376 U.S.,AT 275. 
DISCUSSION OF THE CONDUCT OF PUBLIC OFFICIALS CANNOT, HOWEVER, BE
SUBJECTED TO ARTIFICIAL LIMITATIONS DESIGNED TO PROTECT OTHERS INVOLVED
IN AN EPISODE WITH OFFICIALS FROM UNFAVORABLE PUBLICITY.  SUCH
LIMITATIONS WOULD DEPRIVE THE PUBLIC OF FULL INFORMATION ABOUT THE
OFFICIAL ACTION THAT TOOK PLACE.  IN THE PRESENT CASE, FOR EXAMPLE, THE
PUBLIC WOULD LEARN NOTHING IF PUBLICATION ONLY OF THE FACT THAT THE
POLICE MADE AN ARREST WERE PERMITTED; IT IS ALSO NECESSARY THAT THE
GROUNDS FOR THE ARREST AND, IN MANY CIRCUMSTANCES, THE IDENTITY OF THE
PERSON ARRESTED BE STATED.  IN SHORT, IT IS RARELY INFORMATIVE FOR A
NEWSPAPER OR BROADCASTER TO STATE MERELY THAT OFFICIALS ACTED UNLESS HE
ALSO STATES THE REASONS FOR THEIR ACTION AND THE PERSONS WHOM THEIR
ACTION AFFECTED. 

NOR CAN NEW YORK TIMES BE READ AS PERMITTING PUBLICATIONS THAT
INVADE THE PRIVACY OR INJURE THEREPUTATIONS OF PRIVATE CITIZENS AGAINST
WHOM OFFICIAL ACTION IS DIRECTED.  NEW YORK TIMES GIVES THE
BROADCASTING MEDIA AND THE PRESS THE RIGHT NOT ONLY TO CENSURE AND
CRITICIZE OFFICIALS BUT ALSO TO PRAISE THEM AND THE CONCOMITANT RIGHT
TO CENSURE AND CRITICIZE THEIR ADVERSARIES.  TO EXTEND CONSTITUTIONAL
PROTECTION TO CRITICISM ONLY OF OFFICIALS WOULD BE TO AUTHORIZE
PRECISELY THAT SORT OF THOUGHT CONTROL THAT THE FIRST AMENDMENT FORBIDS
GOVERNMENT TO EXERCISE. 

I WOULD ACCORDINGLY HOLD THAT IN DEFAMATION ACTIONS, ABSENT ACTUAL
MALICE AS DEFINED IN NEW YORK TIMES CO. V. SULLIVAN, THE FIRST
AMENDMENT GIVES THE PRESS AND THE BROADCAST MEDIA A PRIVILEGE TO REPORT
AND COMMENT UPON THE OFFICIAL ACTIONS OF PUBLIC SERVANTS IN FULL
DETAIL, WITH NO REQUIREMENT THAT THE REPUTATION OR THE PRIVACY OF AN
INDIVIDUAL INVOLVED IN OR AFFECTED BY THE OFFICIAL ACTION BE SPARED
FROM PUBLIC VIEW.  SINCE RESPONDENT METROMEDIA DID NOTHING MORE IN THE
INSTANT CASE, I JOIN IN HOLDING ITS BROADCASTS PRIVILEGED.  I WOULD
NOT, HOWEVER, ADJUDICATE CASES NOT NOW BEFORE THE COURT. 

MR. JUSTICE HARLAN, DISSENTING. 

THE VERY FACTS OF THIS CASE DEMONSTRATE THAT UNCRITICAL ACCEPTANCE
OF THE PENNSYLVANIA LIBEL LAW HERE INVOLVED WOULD BE INCONSISTENT WITH
THOSE IMPORTANT FIRST AND FOURTEENTH AMENDMENT VALUES WE FIRST TREATED
WITH IN AN ANALOGOUS CONTEXT IN NEW YORK TIMES CO. V. SULLIVAN, 376
U.S. 254 (1964).  HOWEVER, AS THE PLURALITY OPINION IMPLICITLY
RECOGNIZES, ONLY AN UNDISCRIMINATING ASSESSMENT OF THOSE VALUES WOULD
LEAD US TO EXTEND THE NEW YORK TIMES RULE IN FULL FORCE TO ALL PURELY
PRIVATE LIBELS.  MY BROTHER BRENNAN'S OPINION WOULD RESOLVE THE DILEMMA
BY DISTINGUISHING THOSE PRIVATE LIBELS THAT ARISE OUT OF EVENTS FOUND
TO BE OF "PUBLIC OR GENERAL CONCERN" FROM THOSE THAT DO NOT, AND
SUBJECTING THE FORMER TO FULL-SCALE APPLICATION OF THE NEW YORK TIMES
RULE. 

FOR THE REASONS SET FORTH IN PART I OF MY BROTHER MARSHALL'S
DISSENT, I CANNOT AGREE TO SUCH A SOLUTION.  AS HE SO WELL
DEMONSTRATES, THE PRINCIPAL FAILING OF THE PLURALITY OPINION IS ITS
INADEQUATE APPRECIATION OF THE LIMITATIONS IMPOSED BY THE LEGAL PROCESS
IN ACCOMMODATING THE TENSION BETWEEN STATE LIBEL LAWS AND THE FEDERAL
CONSTITUTIONAL PROTECTION GIVEN TO FREEDOM OF SPEECH AND PRESS. 

ONCE THE EVIDENT NEED TO BALANCE THE VALUES UNDERLYING EACH IS
PERCEIVED, IT MIGHT SEEM, PURELY AS AN ABSTRACT MATTER, THAT THE MOST
UTILITARIAN APPROACH WOULD BE TO SCRUTINIZE CAREFULLY EVERY JURY
VERDICT IN EVERY LIBEL CASE, IN ORDER TO ASCERTAIN WHETHER THE FINAL
JUDGMENT LEAVES FULLY PROTECTED WHATEVER FIRST AMENDMENT VALUES /1/
TRANSCEND THE LEGITIMATE STATE INTEREST IN PROTECTING THE PARTICULAR
PLAINTIFF WHO PREVAILED.  THIS SEEMS TO BE WHAT IS DONE IN THE
PLURALITY OPINION.  BUT WE DID NOT EMBRACE THIS TECHNIQUE IN NEW YORK
TIMES, SUPRA.  INSTEAD, AS MY BROTHER MARSHALL OBSERVES, WE THERE
ANNOUNCED A RULE OF GENERAL APPLICATION, NOT ORDINARILY DEPENDENT FOR
ITS IMPLEMENTATION UPON A CASE-BY-CASE EXAMINATION OF TRIAL COURT
VERDICTS.  SEE ALSO MY DISSENT IN TIME, INC. V. PAPE, 401 U.S. 279, 293
(1971).  NOR DO I PERCEIVE ANY DEVELOPMENTS IN THE SEVEN YEARS SINCE WE
DECIDED NEW YORK TIMES, SUPRA, THAT SUGGEST OUR ORIGINAL METHOD SHOULD
NOW BE ABANDONED.  AT LEAST WHERE WE CAN DISCERN GENERALLY APPLICABLE
RULES THAT SHOULD BALANCE WITH FAIR PRECISION THE COMPETING INTERESTS
AT STAKE, SUCH RULES SHOULD BE PREFERRED TO THE PLURALITY'S APPROACH
BOTH IN ORDER TO PRESERVE A MEASURE OF ORDER AND PREDICTABILITY IN THE
LAW THAT MUST GOVERN THE DAILY CONDUCT OF AFFAIRS AND TO AVOID
SUBJECTING THE PRESS TO JUDICIAL SECOND-GUESSING OF THE NEWSWORTHINESS
OF EACH ITEM THEY PRINT.  CONSEQUENTLY, I FULLY CONCUR IN PART I OF MR.
JUSTICE MARSHALL'S DISSENT. 

FURTHER, I LARGELY AGREE WITH THE ALTERNATIVE PROPOSALS OF THAT
DISSENT.  I, TOO, THINK THAT, WHEN DEALING WITH PRIVATE LIBEL, THE
STATES SHOULD BE FREE TO DEFINE FOR THEMSELVES THE APPLICABLE STANDARD
OF CARE SO LONG AS THEY DO NOT IMPOSE LIABILITY WITHOUT FAULT; THAT A
SHOWING OF ACTUAL DAMAGE SHOULD BE REQUISITE TO RECOVERY FOR LIBEL; AND
THAT IT IS IMPERMISSIBLE, GIVEN THE SUBSTANTIAL CONSTITUTIONAL VALUES
INVOLVED, TO FAIL TO CONFINE THE AMOUNT OF JURY VERDICTS IN SUCH CASES
WITHIN ANY ASCERTAINABLE LIMITS.  HOWEVER, MY REASONS FOR SO CONCLUDING
ARE SOMEWHAT DIFFERENT THAN HIS, AND I THEREFORE REACH A DIFFERENT
RESULT THAN HE DOES WITH RESPECT TO THE TOLERABLE LIMITS OF PUNITIVE
DAMAGES. 

        I 

I THINK WE ALL AGREE ON CERTAIN CORE PROPOSITIONS.  FIRST, AS A
GENERAL MATTER, THE STATES HAVE A PERFECTLY LEGITIMATE INTEREST,
EXERCISED IN A VARIETY OF WAYS, IN REDRESSING AND PREVENTING CARELESS
CONDUCT, NO MATTER WHO IS RESPONSIBLE FOR IT, THAT INFLICTS ACTUAL,
MEASURABLE INJURY UPON INDIVIDUAL CITIZENS.  SECONDLY, THERE IS NO
IDENTIFIABLE VALUE WORTHY OF CONSTITUTIONAL PROTECTION IN THE
PUBLICATION OF FALSEHOODS.  THIRD, ALTHOUGH LIBEL LAW PROVIDES THAT
TRUTH IS A COMPLETE DEFENSE, THAT PRINCIPLE, STANDING ALONE, IS
INSUFFICIENT TO SATISFY THE CONSTITUTIONAL INTEREST IN FREEDOM OF
SPEECH AND PRESS.  FOR WE HAVE RECOGNIZED THAT IT IS INEVITABLE THAT
THERE WILL BE "SOME ERROR IN THE SITUATION PRESENTED IN FREE DEBATE,"
TIME, INC. V. HILL, 385 U.S. 374, 406 (1967) (OPINION OF THIS WRITER),
A PROCESS THAT NEEDS "BREATHING SPACE,"  NAACP V. BUTTON, 371 U.S. 415,
433 (1963), TO FLOURISH, AND THAT "PUTTING TO THE PRE-EXISTING
PREJUDICES OF A JURY THE DETERMINATION OF WHAT IS 'TRUE' MAY
EFFECTIVELY INSTITUTE A SYSTEM OF CENSORSHIP."  TIME, INC. V. HILL,
SUPRA, AT 406. 

MOREOVER, ANY SYSTEM THAT PUNISHES CERTAIN SPEECH IS LIKELY TO
INDUCE SELF SELF-CENSORSHIP BY THOSE WHO WOULD OTHERWISE EXERCISE THEIR
CONSTITUTIONAL FREEDOM.  GIVEN THE CONSTITUTIONALLY PROTECTED INTEREST
IN UNFETTERED SPEECH, IT REQUIRES AN IDENTIFIABLE, COUNTERVAILING STATE
INTEREST, CONSISTENT WITH FIRST AMENDMENT VALUES, TO JUSTIFY A
REGULATORY SCHEME THAT PRODUCES SUCH RESULTS.  AND, BECAUSE THE
PRESENCE OF SUCH VALUES DICTATES CLOSER SCRUTINY OF THIS ASPECT OF
STATE TORT LAW THAN THE FOURTEENTH AMENDMENT WOULD OTHERWISE COMMAND,
IT MAY WELL BE THAT CERTAIN RULES, IMPERVIOUS TO CONSTITUTTIONAL ATTACK
WHEN APPLIED TO ORDINARY HUMAN CONDUCT, MAY HAVE TO BE ALTERED OR
ABANDONED WHERE USED TO REGULATE SPEECH SPEECH.  FINALLY, AS DETERMINED
IN NEW YORK TIMES, THE CONSTITUTIONAL INTEREST IN TOLERANCE OF
FALSEHOOOD AS WELL AS THE NEED TO ADJUST COMPETING SOCIETAL INTERESTS,
PROHIBITS, AT A MINIMUM, THE IMPOSITION OF LIABILITY WITHOUT FAULT. 
THE PRECISE STANDARD OF CARE NECESSARY TO ACHIEVE THESE GOALS IS,
HOWEVER, A MATTER OF DISPUTE AS IS THE RANGE OF PENALTIES A STATE MAY
PRESCRIBE FOR A BREACH OF THAT STANDARD.  IN ANALYZING THESE PROBLEMS
IT IS NECESSARY TO BEGIN WITH A GENERAL ANALYTICAL FRAMEWORK THAT
DEFINES THOSE COMPETING INTERESTS THAT MUST BE RECONCILED.  MY BROTHER
MARSHALL'S OPINION, I THINK, DWELLS TOO LIGHTLY UPON THE NATURE OF THE
LEGITIMATE COUNTERVAILING INTERESTS PROMOTED BY THE STATE'S LIBEL LAW
AND, AS A RESULT, OVERSTATES THE CASE AGAINST PUNITIVE DAMAGES. 
BECAUSE WE DEAL WITH A SET OF LEGAL RULES THAT TREAT TRUTH AS A
COMPLETE DEFENSE IT STRIKES, I THINK, SOMEWHAT WIDE OF THE MARK TO
TREAT THE STATE'S INTEREST AS ONE OF PROTECTING REPUTATIONS FROM
"UNJUSTIFIED INVASION."  POST, AT 78.  BY HYPOTHESIS, THE RESPONDENT
HERE WAS FREE TO REVEAL ANY TRUE FACTS ABOUT PETITIONER'S "OBSCURE
PRIVATE LIFE."  /2/ 

GIVEN THE DEFENSE OF TRUTH, IT IS MY JUDGMENT THAT, IN ORDER TO
ASSURE THAT IT PROMOTES PURPOSES CONSISTENT WITH FIRST AMENDMENT
VALUES, THE LEGITIMATE FUNCTION OF LIBEL LAW MUST BE UNDERSTOOD AS THAT
OF COMPENSATING INDIVIDUALS FOR ACTUAL, MEASURABLE HARM CAUSED BY THE
CONDUCT OF OTHERS.  THIS CAN BEST BE DEMONSTRATED BY POSTULATING A LAW
THAT SUBJECTS PUBLISHERS TO JURY VERDICTS FOR FALSEHOODS THAT HAVE DONE
THE PLAINTIFF NO HARM.  IN MY VIEW, SUCH A RULE CAN ONLY SERVE A
PURPOSE ANTITHETICAL TO THOSE OF THE FIRST AMENDMENT.  IT PENALIZES
SPEECH, NOT TO REDRESS OR AVOID THE INFLICTION OF HARM, BUT ONLY TO
DETER THE PRESS FROM PUBLISHING MATERIAL REGARDING PRIVATE BEHAVIOR
THAT TURNS OUT TO BE FALSE SIMPLY BECAUSE OF ITS FALSITY.  THIS THE
FIRST AMENDMENT WILL NOT TOLERATE.  WHERE THE STATE CANNOT POINT TO ANY
TANGIBLE DANGER, EVEN KNOWINGLY ERRONEOUS PUBLICATION IS ENTITLED TO
CONSTITUTIONAL PROTECTION BECAUSE OF THE INTEREST IN AVOIDING AN
INQUIRY INTO THE MERE TRUTH OR FALSITY OF SPEECH.  MOREOVER, SUCH A
SCHEME WOULD IMPOSE A BURDEN ON SPEAKING NOT GENERALLY PLACED UPON
CONSTITUTIONALLY UNPROTECTED CONDUCT-- THE PAYMENT OF PRIVATE FINES FOR
CONDUCT WHICH, ALTHOUGH NOT CONFORMED TO ESTABLISHED LIMITS OF CARE,
CAUSES NO HARM IN FACT. 

CONVERSELY, I THINK THAT WHERE THE PURPOSE AND EFFECT OF THE LAW ARE
TO REDRESS ACTUAL AND MEASURABLE INJURY TO PRIVATE INDIVIDUALS THAT WAS
REASONABLY FORESEEABLE AS A RESULT OF THE PUBLICATION, THERE IS NO
NECESSARY CONFLICT WITH THE VALUES OF FREEDOM OF SPEECH.  JUST AS AN
AUTOMOBILE NEGLIGENTLY DRIVEN CAN COST A PERSON HIS PHYSICAL AND MENTAL
WELL-BEING AND THE FRUITS OF HIS LABOR, SO CAN A PRINTING PRESS
NEGLIGENTLY SET.  WHILE THE FIRST AMENDMENT PROTECTS THE PRESS FROM THE
IMPOSITION OF SPECIAL LIABILITIES UPON IT, "(TO EXEMPT A PUBLISHER,
BECAUSE OF THE NATURE OF HIS CALLING, FROM AN IMPOSITION GENERALLY
EXACTED FROM OTHER MEMBERS OF THE COMMUNITY, WOULD BE TO EXTEND A
PROTECTION NOT REQUIRED BY THE CONSTITUTIONAL GUARANTEE."  CURTIS
PUBLISHING CO. V. BUTTS, 388 U.S. 130, 160 (1967) (OPINION OF THIS
WRITER).  A BUSINESS "IS NOT IMMUNE FROM REGULATION BECAUSE IT IS AN
AGENCY OF THE PRESS.  THE PUBLISHER OF A NEWSPAPER HAS NO SPECIAL
IMMUNITY FROM THE APPLICATION OF GENERAL LAWS.  HE HAS NO SPECIAL
PRIVILEGE TO INVADE THE RIGHTS AND LIBERTIES OF OTHERS."  ASSOCIATED
PRESS V. NLRB, 301 U.S. 103, 132-133 (1937).  THAT THE DAMAGE HAS BEEN
INFLICTED BY WORDS RATHER THAN OTHER INSTRUMENTALITIES CANNOT INSULATE
IT FROM LIABILITY.  STATES MAY LEGITIMATELY BE REQUIRED TO USE FINER
REGULATORY TOOLS WHERE DEALING WITH "SPEECH," BUT THEY ARE NOT WHOLLY
DISABLED FROM EXACTING COMPENSATION FOR ITS MEASURABLE ADVERSE
CONSEQUENCES.  IF THIS IS NOT SO, IT IS DIFFICULT TO UNDERSTAND WHY
GOVERNMENTS MAY, FOR EXAMPLE, PROSCRIBE "MISLEADING" ADVERTISING
PRACTICES OR SPECIFY WHAT IS "TRUE" IN THE DISSEMINATION OF CONSUMER
CREDIT ADVERTISEMENTS. 

NOR DOES THIS INTEREST IN COMPENSATING VICTIMS OF HARMFUL CONDUCT
SOMEHOW DISAPPEAR WHEN THE DAMAGES INFLICTED ARE GREAT.  SO LONG AS THE
EFFECT OF THE LAW OF LIBEL IS SIMPLY TO MAKE PUBLISHERS PAY FOR THE
HARM THEY CAUSE, AND THE STANDARD OF CARE REQUIRED IS APPROPRIATELY
ADJUSTED TO TAKE ACCOUNT OF THE SPECIAL COUNTERVAILING INTERESTS IN AN
OPEN EXCHANGE OF IDEAS, THE FACT THAT THIS MAY INVOLVE THE PAYMENT OF
SUBSTANTIAL SUMS CANNOT PLAUSIBLY BE SAID TO RAISE SERIOUS FIRST
AMENDMENT PROBLEMS.  IF A NEWSPAPER REFUSED TO PAY ITS BILLS BECAUSE TO
DO SO WOULD PUT IT OUT OF BUSINESS, WOULD THE FIRST AMENDMENT DICTATE
THAT THIS BE TREATED AS A PARTIAL OR COMPLETE DEFENSE?  IF AN
AUTOMOBILE CARRYING A NEWSMAN TO THE SCENE OF A HISTORY-MAKING EVENT
RAN OVER A PEDESTRIAN, WOULD THE SIZE OF THE VERDICT, IF BASED UPON
GENERALLY APPLICABLE TORT LAW PRINCIPLES, HAVE TO BE ASSESSED AGAINST
THE PROBABILITY THAT IT WOULD DETER BROADCASTERS FROM NEWS GATHERING
BEFORE IT COULD PASS MUSTER UNDER THE FIRST AMENDMENT? 

HOWEVER, WITHOUT FORECLOSING THE POSSIBILITY THAT OTHER LIMITING
PRINCIPLES MAY BE SURFACED BY SUBSEQUENT EXPERIENCE, I DO THINK THAT
SINCE WE ARE DEALING, BY HYPOTHESIS, WITH INFLICTION OF HARM THROUGH
THE EXERCISE OF FREEDOM OF SPEECH AND THE PRESS TO WHICH THE
CONSTITUTION GIVES EXPLICIT PROTECTION, RECOVERABLE DAMAGES MUST BE
LIMITED TO THOSE CONSEQUENCES OF THE PUBLICATION WHICH ARE REASONABLY
FORESEEABLE.  THE USUAL TORT RULE SEEMS TO BE THAT ONCE SOME
FORESEEABLE INJURY HAS BEEN INFLICTED, THE NEGLIGENT DEFENDANT MUST
COMPENSATE FOR ALL DAMAGES HE PROXIMATELY CAUSED IN FACT, NO MATTER HOW
PECULIAR WERE THE CIRCUMSTANCES OF THE PARTICULAR PLAINTIFF INVOLVED. 
W. PROSSER, THE LAW OF TORTS SEC. 50 (3D ED. 1964).  HOWEVER, OUR CASES
ESTABLISH, I THINK, THAT, UNLESS HE HAS KNOWLEDGE TO THE CONTRARY, A
SPEAKER IS ENTITLED TO PRESUME THAT HE IS ADDRESSING AN AUDIENCE THAT
IS NOT ESPECIALLY SUSCEPTIBLE TO DISTRESS AT THE SPECTER OF OPEN,
UNINHIBITED, ROBUST SPEECH.  COHEN V. CALIFORNIA, ANTE, P. 15.  SEE
ALSO BRANDENBURG V. OHIO, 395 U.S. 444 (1969); BUTLER V. MICHIGAN, 352
U.S. 380 (1957).  THUS, I THINK THE SPEAKER SHOULD BE FREE FROM A DUTY
TO COMPENSATE FOR ACTUAL HARM INFLICTED BY HIS FALSEHOODS WHERE THE
DEFAMATION WOULD NOT HAVE CAUSED SUCH HARM TO A PERSON OF AVERAGE
SENSIBILITIES UNLESS, OF COURSE, THE SPEAKER KNEW THAT HIS STATEMENTS
WERE MADE CONCERNING AN UNUSUALLY SENSITIVE PERSON.  IN SHORT, I THINK
THE FIRST AMENDMENT DOES PROTECT GENERALLY AGAINST THE POSSIBILITY OF
SELF-CENSORSHIP IN ORDER TO AVOID UNWITTING AFFRONTS TO THE FRAIL AND
THE QUEASY. 

        II 

OF COURSE, IT DOES NOT FOLLOW THAT SO LONG AS LIBEL LAW PERFORMS THE
SAME COMPENSATORY FUNCTION AS CIVIL LAW GENERALLY IT IS NECESSARILY
LEGITIMATE IN ALL ITS VARIOUS APPLICATIONS.  THE PRESENCE OF FIRST
AMENDMENT VALUES MEANS THAT THE STATE CAN BE COMPELLED TO UTILIZE
FINER, MORE DISCRIMINATING INSTRUMENTS OF REGULATION WHERE NECESSARY TO
GIVE MORE CAREFUL PROTECTION TO THESE COUNTERVAILING INTERESTS.  NEW
YORK TIMES, SUPRA, AND CURTIS PUBLISHING CO., SUPRA, ESTABLISHED THAT
WHERE THE INJURED PARTY IS A "PUBLIC FIGURE" OR A "PUBLIC OFFICIAL,"
THE INTEREST IN FREEDOM OF SPEECH DICTATES THAT THE STATES FORGO THEIR
INTEREST IN COMPENSATING FOR ACTUAL HARM, EVEN UPON A BASIS GENERALLY
APPLICABLE TO ALL MEMBERS OF SOCIETY, UNLESS THE PLAINTIFF CAN SHOW
THAT THE INJURIOUS PUBLICATION WAS FALSE AND WAS MADE "WITH 'ACTUAL
MALICE'-- THAT IS, WITH KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS
DISREGARD OF WHETHER IT WAS FALSE OR NOT."  NEW YORK TIMES, SUPRA, AT
280.  TACITLY RECOGNIZING THAT IT WOULD UNDULY SACRIFICE THE OPERATIVE
LEGITIMATE STATE INTERESTS TO EXTEND THIS RULE TO ALL CASES WHERE THE
INJURED PARTY IS SIMPLY A PRIVATE INDIVIDUAL, THE PLURALITY OPINION
WOULD NEVERTHELESS APPLY IT WHERE THE PUBLICATION CONCERNED SUCH A
PERSON'S "INVOLVEMENT IN AN EVENT OF PUBLIC OR GENERAL CONCERN."  ANTE,
AT 52.  I WOULD NOT OVERRULE NEW YORK TIMES OR CURTIS PUBLISHING CO.
AND I DO AGREE, AS INDICATED ABOVE, THAT MAKING LIABILITY TURN ON
SIMPLE FALSITY IN THE PURELY PRIVATE LIBEL AREA IS NOT CONSTITUTIONALLY
PERMISSIBLE.  BUT I WOULD NOT CONSTRUE THE FEDERAL CONSTITUTION TO
REQUIRE THAT THAT THE STATES ADHERE TO A STANDARD OTHER THAN THAT OF
REASONABLE CARE WHERE THE PLAINTIFF IS AN ORDINARY CITIZEN. 

MY PRINCIPAL CONCERN WITH THE PLURALITY'S VIEW, OF COURSE, IS THAT
VOICED BY MY BROTHER MARSHALL.  HOWEVER, EVEN IF THIS OBJECTION WERE
NOT TENABLE, UNLIKE THE PLURALITY, I DO THINK THERE IS A DIFFERENCE,
RELEVANT TO THE INTERESTS HERE INVOLVED, BETWEEN THE PUBLIC AND THE
PRIVATE PLAINTIFF, AS OUR CASES HAVE DEFINED THESE CATEGORIES, AND THAT
MAINTAINING A CONSTITUTIONAL DISTINCTION BETWEEN THEM IS AT LEAST AS
LIKELY TO PROTECT TRUE FIRST AMENDMENT CONCERNS AS ONE THAT ERADICATES
SUCH A LINE AND SUBSTITUTES FOR IT A DISTINCTION BETWEEN MATTERS WE
THINK ARE OF TRUE SOCIAL SIGNIFICANCE AND THOSE WE THINK ARE NOT. 

TO BEGIN, IT DOES NO VIOLENCE, IN MY JUDGMENT, TO THE VALUE OF
FREEDOM OF SPEECH AND PRESS TO IMPOSE A DUTY OF REASONABLE CARE UPON
THOSE WHO WOULD EXERCISE THESE FREEDOMS.  I DO NOT THINK IT CAN BE
GAINSAID THAT THE STATES HAVE A SUBSTANTIAL INTEREST IN ENCOURAGING
SPEAKERS TO CAREFULLY SEEK THE TRUTH BEFORE THEY COMMUNICATE, AS WELL
AS IN COMPENSATING PERSONS ACTUALLY HARMED BY FALSE DESCRIPTIONS OF
THEIR PERSONAL BEHAVIOR.  ADDITIONALLY, THE BURDEN OF ACTING REASONABLY
IN TAKING ACTION THAT MAY PRODUCE ADVERSE CONSEQUENCES FOR OTHERS IS
ONE GENERALLY PLAED UPON ALL IN OUR SOCIETY.  THUS, HISTORY ITSELF
BELIES THE ARGUMENT THAT A SPEAKER MUST SOMEHOW BE FREED OF THE
ORDINARY CONSTRAINTS OF ACTING WITH REASONABLE CARE IN ORDER TO
CONTRIBUTE TO THE PUBLIC GOOD WHILE, FOR EXAMPLE, DOCTORS, ACCOUNTANTS,
AND ARCHITECTS HAVE CONSTANTLY PERFORMED WITHIN SUCH BOUNDS. 

THIS DOES NOT MEAN THAT I DO NOT AGREE WITH THE RULE OF NEW YORK
TIMES, SUPRA, BUT ONLY THAT I DEEM IT INAPPLICABLE HERE.  THAT RULE WAS
NOT, I THINK, BORN SOLELY OF A DESIRE TO FREE SPEECH THAT WOULD
OTHERWISE HAVE BEEN STIFLED BY OVERLY RESTRICTIVE RULES, BUT ALSO
RESTED UPON A DETERMINATION THAT THE COUNTERVAILING STATE INTERESTS,
DESCRIBED ABOVE, WERE NOT FULLY APPLICABLE WHERE THE SUBJECT OF THE
FALSEHOOD WAS A PUBLIC OFFICIAL OR A PUBLIC FIGURE.  FOR ME, IT DOES
SEEM QUITE CLEAR THAT THE PUBLIC PERSON HAS A GREATER LIKELIHOOD OF
SECURING ACCESS TO CHANNELS OF COMMUNICATION SUFFICIENT TO REBUT
FALSEHOODS CONCERNING HIM THAN DO PRIVATE INDIVIDUALS IN THIS COUNTRY
WHO DO NOT TOIL IN THE PUBLIC SPOTLIGHT.  SIMILARLY, OUR WILLINGNESS TO
ASSUME THAT PUBLIC PERSONALITIES ARE MORE IMPERVIOUS TO CRITICISM, AND
MAY BE HELD TO HAVE RUN THE RISK OF PUBLICLY CIRCULATED FALSEHOODS
CONCERNING THEM, DOES NOT REST SOLELY UPON AN EMPIRICAL ASSERTION OF
FACT, BUT ALSO UPON A BRIEF THAT, IN OUR POLITICAL SYSTEM, THE
INDIVIDUAL SPEAKER IS ENTITLED TO ACT UPON SUCH AN ASSUMPTION IF OUR
INSTITUTIONS ARE TO BE HELD UP, AS THEY SHOULD BE, TO CONSTANT
SCRUTINY.  AND, AT LEAST AS TO THE "PUBLIC OFFICIAL," IT SEEMS TO BE
UNIVERSALLY THE CASE THAT HE IS ENTITLED TO AN ABSOLUTE IMMUNITY FOR
WHAT HE MAY UTTER IN RESPONSE TO THE CHARGES OF OTHERS.  WHERE SUCH
FACTORS ARE PRESENT THE NEED TO PROVIDE MONETARY COMPENSATION FOR
DEFAMATION APPEARS A GOOD DEAL MORE ATTENUATED.  FINALLY, IN LIGHT OF
THE PLURALITY OPINION'S SOMEWHAT EXTRAVAGANT DELINEATION OF THE PUBLIC
INTEREST INVOLVED IN THE DISSEMINATION OF INFORMATION ABOUT NONPUBLIC
PERSONS, IT BEARS EMPHASIZING THAT A PRIMARY RATIONALE FOR EXTENDING
THE NEW YORK TIMES RULE TO PUBLIC FIGURES WAS THE DESIRE TO REFLECT, IN
THE CONSTITUTTIONAL BALANCE, THE FACT THAT "IN THIS COUNTRY, THE
DISTINCTIONS BETWEEN GOVERNMENTAL AND PRIVATE SECTORS ARE BLURRED,"
CURTIS PUBLISHING CO., SUPRA, AT 163 (OPINION OF WARREN, C.J.), AND TO
TREAT CONSTITUTIONAL VALUES AS SPECIALLY IMPLICATED WHERE IMPORTANT,
ALBEIT NONOFFICIAL, POLICY AND BEHAVIOR WERE THE SUBJECTS OF
DISCUSSION.  AT THE VERY LEAST, THIS TENDS TO DIMINISH THE FORCE OF ANY
CONTENTION THAT LIBELOUS DEPICTIONS OF NONPUBLIC PERSONS ARE OFTEN
LIKELY TO INVOLVE MATTERS OF ABIDING PUBLIC SIGNIFICANCE. 

I CANNOT AGREE THAT THE FIRST AMENDMENT GIVES SPECIAL PROTECTION TO
THE PRESS FROM "(THE VERY POSSIBILITY OF HAVING TO ENGAGE IN
LITIGATION," ANTE, AT 52 (OPINION OF BRENNAN, J.).  WERE THIS ASSERTION
TENABLE, I DO NOT SEE WHY THE STATES COULD EVER ENFORCE THEIR LIBEL
LAWS.  CF. MY BROTHER BLACK'S OPINION, ANTE, AT 57.  FURTHER, IT WOULD
CERTAINLY CAST VERY GRAVE DOUBTS UPON THE CONSTITUTIONALITY OF SO
CALLED "RIGHT-OF-REPLY STATUTES" ADVOCATED BY THE PLURALITY, ANTE, AT
47 N. 15, AND ULTIMATELY TREAT THE APPLICATION OF ANY GENERAL LAW TO A
PUBLISHER OR BROADCASTER AS AN IMPORTANT FIRST AMENDMENT ISSUE.  THE
NOTION THAT SUCH AN INTEREST, IN THE CONTEXT OF A PURELY PRIVATE LIBEL,
IS A SIGNIFICANT INDEPENDENT CONSTITUTIONAL VALUE IS AN UNFORTUNATE
CONSEQUENCE OF THE PLURALITY'S SINGLE-MINDED DEVOTION TO THE TASK OF
PREVENTING SELF-CENSORSHIP, REGARDLESS OF THE PURPOSES FOR WHICH SUCH
RESTRAINT IS INDUCED OR THE EVILS ITS EXERCISE TENDS TO AVOID. 

IT IS, THEN, MY JUDGMENT THAT THE REASONABLE CARE STANDARD
ADEQUATELY SERVES THOSE FIRST AMENDMENT VALUES THAT MUST INFORM THE
DEFINITION OF ACTIONABLE LIBEL AND THAT THOSE SPECIAL CONSIDERATIONS
THAT MADE EVEN THIS STANDARD AN INSUFFICIENTLY PRECISE TECHNIQUE WHEN
APPLIED TO PLAINTIFFS WHO ARE "PUBLIC OFFICIALS" OR "PUBLIC FIGURES" DO
NOT OBTAIN WHERE THE LITIGANT IS A PURELY PRIVATE INDIVIDUAL. 

        III 

THERE REMAINS THE PROBLEM OF PUNITIVE DAMAGES.  /3/  NO DOUBT MY
BROTHER MARSHALL IS CORRECT IN ASSERTING THAT THE SPECTER OF BEING
FORCED TO PAY OUT SUBSTANTIAL PUNITIVE DAMAGE AWARDS IS LIKELY TO
INDUCE SELF-CENSORSHIP.  THIS WOULD PROBABLY ALSO BE THE CASE WHERE THE
HARM ACTUALLY CAUSED IS LIKELY TO BE GREAT.  BUT, AS I INDICATED ABOVE,
THIS FACT IN ITSELF WOULD NOT JUSTIFY CONSTRUING THE FIRST AMENDMENT TO
IMPOSE AN ARBITRARY LIMITATION ON THE AMOUNT OF ACTUAL DAMAGES
RECOVERABLE.  THUS, AS MY BROTHER MARSHALL WOULD APPARENTLY AGREE--
SINCE HE, TOO, PROPOSES NO LIMITATION ON ACTUAL DAMAGES-- ONE CANNOT
JUMP FROM THE PROPOSITION THAT FEAR OF SUBSTANTIAL PUNITIVE DAMAGE
AWARDS MAY BE AN IMPORTANT FACTOR IN INDUCING SELF-CENSORSHIP DIRECTLY
TO THE RESULT THAT PUNITIVE DAMAGES CANNOT BE ASSESSED IN ALL PRIVATE
LIBEL CASES.  A MORE PARTICULARIZED INQUIRY INTO THE NATURE OF THE
COMPETING INTERESTS INVOLVED IS NECESSARY IN ORDER TO ASCERTAIN WHETHER
AWARDING PUNITIVE DAMAGES MUST INEVITABLY, IN PRIVATE LIBEL CASES,
SERVE ONLY INTERESTS THAT ARE INCOMPATIBLE WITH THE FIRST AMENDMENT. 
AT A MINIMUM, EVEN IN THE PURELY PRIVATE LIBEL AREA, I THINK THE FIRST
AMENDMENT SHOULD BE CONSTRUED TO LIMIT THE IMPOSITION OF PUNITIVE
DAMAGES TO THOSE SITUATIONS WHERE ACTUAL MALICE IS PROVED.  THIS IS THE
TYPICAL STANDARD EMPLOYED IN ASSESSING ANYONE'S LIABILITY FOR PUNITIVE
DAMAGES WHERE THE UNDERLYING AIM OF THE LAW IS TO COMPENSATE FOR HARM
ACTUALLY CAUSED, SEE, E.G., 3 L.FRUMER ET AL.,PERSONAL INJURY 2.02
(1965); H. OLECK, DAMAGES TO PERSONS AND PROPERTY SEC. 30 (1955), AND
NO CONCEIVABLE STATE INTEREST COULD JUSTIFY IMPOSING A HARSHER STANDARD
ON THE EXERCISE OF THOSE FREEDOMS THAT ARE GIVEN EXPLICIT PROTECTION BY
THE FIRST AMENDMENT. 

THE QUESTION THEN ARISES WHETHER FURTHER LIMITATIONS ON THIS GENERAL
STATE POWER MUST BE IMPOSED IN ORDER TO SERVE THE PARTICULARIZED GOALS
OF THE FIRST AMENDMENT.  THE MOST COMPELLING RATIONALE FOR PROVIDING
PUNITIVE DAMAGES WHERE ACTUAL MALICE IS SHOWN IS THAT SUCH DAMAGES
ASSURE THAT DETERRENT FORCE IS ADDED TO THE JURY'S VERDICT.  IF THE
SPEAKER'S CONDUCT WAS QUITE LIKELY TO PRODUCE SUBSTANTIAL HARM, BUT
FORTUITOUSLY DID NOT, SIMPLE ASSESSMENT OF ACTUAL DAMAGES WILL NOT
FULLY REFLECT THE SOCIAL INTEREST IN DETERRING THAT CONDUCT GENERALLY. 
FURTHER, EVEN IF THE HARM DONE WAS GREAT THE DEFENDANT MAY HAVE
UNUSUALLY SUBSTANTIAL RESOURCES THAT MAKE THE AWARD OF ACTUAL DAMAGES A
TRIVIAL INCONVENIENCE OF NO ACTUAL DETERRENT VALUE.  AND EVEN WHERE
NEITHER OF THESE FACTORS OBTAINS, THE STATE ALWAYS RETAINS AN INTEREST
IN PUNISHING MORE SEVERELY CONDUCT THAT, ALTHOUGH IT CAUSES THE SAME
EFFECT, IS MORE MORALLY BLAMEWORTHY.  FOR EXAMPLE, CONSIDER THE
DISTINCTION BETWEEN MANSLAUGHTER AND FIRST-DEGREE MURDER. 

I FIND IT IMPOSSIBLE TO SAY, AT LEAST WITHOUT FURTHER JUDICIAL
EXPERIENCE IN THIS AREA, THAT THE FIRST AMENDMENT INTEREST IN AVOIDING
SELF-CENSORSHIP WILL ALWAYS OUTWEIGH THE STATE INTEREST IN VINDICATING
THESE POLICIES.  IT SEEMS THAT A LEGISLATIVE CHOICE IS PERMISSIBLE
WHICH, FOR EXAMPLE, SEEKS TO INDUCE, THROUGH A REASONABLE MONETARY
ASSESSMENT, REPRESSION OF FALSE MATERIAL, PUBLISHED WITH ACTUAL MALICE,
THAT WAS DEMONSTRABLY HARMFUL AND REASONABLY THOUGHT CAPABLE OF CAUSING
SUBSTANTIAL HARM, BUT, IN FACT, WAS NOT SO FULLY INJURIOUS TO THE
INDIVIDUAL ATTACKED.  SIMILARLY, THE STATE SURELY HAS A LEGITIMATE
INTEREST IN SEEKING TO ASSURE THAT ITS SYSTEM OF COMPENSATING VICTIMS
OF NEGLIGENT BEHAVIOR ALSO OPERATES UPON ALL AS AN INDUCEMENT TO
AVOIDANCE OF SUCH CONDUCT.  AND, THESE ARE BURDENS THAT ARE PLACED ON
ALL MEMBERS OF SOCIETY, THUS PERMITTING THE PRESS TO ESCAPE THEM ONLY
IF ITS INTEREST IS SOMEHOW DIFFERENT IN THIS REGARD. 

HOWEVER, FROM THE STANDPOINT OF THE INDIVIDUAL PLAINTIFF SUCH DAMAGE
AWARDS ARE WINDFALLS.  THEY ARE, IN ESSENCE, PRIVATE FINES LEVIED FOR
PURPOSES THAT MAY BE WHOLLY UNRELATED TO THE CIRCUMSTANCES OF THE
ACTUAL LITIGANT.  THAT FACT ALONE IS NOT, I THINK, ENOUGH TO CONDEMN
THEM.  THE STATE MAY, AS IT OFTEN DOES, USE THE VEHICLE OF A PRIVATE
LAWSUIT TO SERVE BROADER PUBLIC PURPOSES.  IT IS NOTEWORTHY THAT MY
BROTHER MARSHALL DOES NOT REST HIS OBJECTION TO PUNITIVE DAMAGES UPON
THESE GROUNDS.  HE FEARS, INSTEAD, THE SELF-CENSORSHIP THAT MAY FLOW
FROM THE UNBRIDLED DISCRETION OF JURIES TO SET THE AMOUNT OF SUCH
DAMAGES.  I AGREE THAT WHERE THESE AMOUNTS BEAR NO RELATIONSHIP TO THE
ACTUAL HARM CAUSED, THEY THEN SERVE ESSENTIALLY AS SPRINGBOARDS TO JURY
ASSESSMENT, WITHOUT REFERENCE TO THE PRIMARY LEGITIMATING COMPENSATORY
FUNCTION OF THE SYSTEM, OF AN INFINITELY WIDE RANGE OF PENALTIES WHOLLY
UNPREDICTABLE IN AMOUNT AT THE TIME OF THE PUBLICATION AND THAT THIS
MUST BE A SUBSTANTIAL FACTOR IN INDUCING SELF-CENSORSHIP.  FURTHER, I
FIND IT DIFFICULT TO FATHOM WHY IT MAY BE NECESSARY, IN ORDER TO
ACHIEVE ITS JUSTIFIABLE DETERRENCE GOALS, FOR THE STATES TO PERMIT
PUNITIVE DAMAGES THAT BEAR NO DISCERNIBLE RELATIONSHIP TO THE ACTUAL
HARM CAUSED BY THE PUBLICATION AT ISSUE.  A RATIONAL DETERMINATION OF
THE INJURY A PUBLICATION MIGHT POTENTIALLY HAVE INFLICTED SHOULD
TYPICALLY PROCEED FROM THE HARM DONE IN FACT.  AND WHERE THE
COMPENSATORY SCHEME SEEKS TO ACHIEVE DETERRENCE AS A SUBSIDIARY BY
PRODUCT, THE DESIRED DETERRENCE, IF NOT PRECISELY MEASURED BY ACTUAL
DAMAGES, SHOULD BE INFORMED BY THAT TOUCHSTONE IF DETERRENCE OF
FALSEHOOD IS NOT TO REPLACE COMPENSATION FOR HARM AS THE PARAMOUNT
GOAL.  FINALLY, WHILE OUR LEGAL SYSTEM DOES OFTEN METE OUT HARSHER
PUNISHMENT FOR MORE CULPABLE ACTS, IT TYPICALLY BEGINS WITH A GRADATION
OF OFFENSES DEFINED IN TERMS OF EFFECTS.  COMPARE, FOR EXAMPLE, LARCENY
WITH MURDER.  IT IS NOT SURPRISING, THEN, THAT MOST STATES APPARENTLY
REQUIRE THAT PUNITIVE DAMAGES IN MOST PRIVATE CIVIL ACTIONS BEAR SOME
REASONABLE RELATION TO THE ACTUAL DAMAGES AWARDED, OLECK, AT SEC. 175,
PENNSYLVANIA INCLUDED, WEIDER V. HOFFMAN, 238 F.SUPP.  437, 444-447 (MD
PA. 1965). 

HOWEVER, WHERE THE AMOUNT OF PUNITIVE DAMAGES AWARDED BEARS A
REASONABLE AND PURPOSEFUL RELATIONSHIP TO THE ACTUAL HARM DOEN, I
CANNOT AGREE THAT THE CONSTITUTION MUST BE READ TO PROHIBIT SUCH AN
AWARD.  INDEED, AS I UNDERSTAND IT, MY BROTHER MARSHALL'S OBJECTION TO
MY POSITION /4/  IS NOT THAT THE INTEREST IN FREEDOM OF SPEECH DICTATES
ELIMINATING SUCH JUDGMENTS, BUT THAT THIS RESULT IS COMPELLED BY THE
NEED TO AVOID INVOLVING COURTS IN AN "AD HOC BALANCING" OF "THE CONTENT
OF THE SPEECH AND THE SURROUNDING CIRCUMSTANCES," POST, AT 86, 85, MUCH
LIKE THAT UNDERTAKEN TODAY IN PART VI OF THE PLURALITY OPINION, THE
SAME TECHNIQUE CRITICIZED IN MY DISSENT IN TIME, INC. V. PAPE, SUPRA.
I FIND THIS ARGUMENT UNPERSUASIVE.  FIRST, I DO NOT SEE WHY MY PROPOSED
RULE WOULD NECESSARILY REQUIRE FREQUENT JUDICIAL REWEIGHING OF THE
FACTS UNDERLYING EACH JURY VERDICT.  A CAREFULLY AND PROPERLY
INSTRUCTED JURY SHOULD ORDINARILY BE ABLE TO ARRIVE AT DAMAGE AWARDS
THAT ARE SELF-VALIDATING.  IT IS OTHERS, NOT I, WHO HAVE PLACED UPON
THE FEDERAL COURTS THE GENERAL DUTY OF REWEIGHING JURY VERDICTS
REGARDING THE DEGREE OF FAULT DEMONSTRATED IN LIBEL ACTIONS.  FURTHER,
TO THE EXTENT THAT SUPERVISION OF JURY VERDICTS WOULD BE REQUIRED IT
WOULD ENTAIL A DIFFERENT PROCESS FROM THAT UNDERTAKEN WHERE JUDGES
REDETERMINE THE DEGREE OF FAULT.  THE DEFENDANT'S RESOURCES, THE ACTUAL
HARM SUFFERED BY THE PLAINTIFF, AND THE PUBLICATION'S POTENTIAL FOR
ACTUAL HARM ARE ALL SUSCEPTIBLE OF MORE OR LESS OBJECTIVE MEASUREMENT. 
AND THE OVERRIDING PRINCIPLE THAT DETERRENCE IS NOT TO BE MADE A
SUBSTITUTE FOR COMPENSATION SHOULD SERVE AS A USEFUL MECHANISM FOD
ADJUSTING THE EQUATION.  FINALLY, EVEN IF SOME MARGINAL "AD HOC
BALANCING" BECOMES NECESSARY, I SHOULD THINK IT THE DUTY OF THIS COURT
AT LEAST TO ATTEMPT TO IMPLEMENT SUCH A PROCESS BEFORE PRE-EMPTING, FOR
ITSELF, ALL STATE POWER IN THIS REGARD.  /5/ 

IN SUM, GIVEN THE FACT THAT IT SEEMS TO REFLECT THE MAJORITY RULE,
THAT MOST OF OUR JURISPRUDENCE PROCEEDS UPON THE PREMISE THAT
LEGISLATIVE PURPOSES CAN BE ACHIEVED BY FITTING THE PUNISHMENT TO THE
CRIME, AND SINCE WE DEAL HERE WITH A PRECISE CONSTITUTIONAL INTEREST
THAT MAY LEGITIMATELY REQUIRE THE STATES TO RESORT TO MORE
DISCRIMINATING REGULATION WITHIN A MORE CIRCUMSCRIBED AREA OF
PERMISSIBLE CONCERN, I WOULD HOLD UNCONSTITUTIONAL, IN A PRIVATE LIBEL
CASE, JURY AUTHORITY TO AWARD PUNITIVE DAMAGES WHICH IS UNCONFINED BY
THE REQUIREMENT THAT THESE AWARDS BEAR A REASONABLE AND PURPOSEFUL
RELATIONSHIP TO THE ACTUAL HARM DONE.  CONVERSELY, WHERE THE JURY
AUTHORITY HAS BEEN EXERCISED WITHIN SUCH CONSTRAINTS, AND THE PLAINTIFF
HAS PROVED THAT THE SPEAKER ACTED OUT OF EXPRESS MALICE, GIVEN THE
PRESENT STATE OF JUDICIAL EXPERIENCE, I THINK IT WOULD BE AN
UNWARRANTED INTRUSION INTO THE LEGITIMATE LEGISLATIVE PROCESSES OF THE
STATES AND AN IMPERMISSIBLY BROAD CONSTRUCTION OF THE FIRST AMENDMENT
TO NULLIFY THAT STATE ACTION. 

BECAUSE THE COURT OF APPEALS ADJUDICATED THIS CASE UPON PRINCIPLES
WHOLLY UNLIKE THOSE SUGGESTED HERE, I WOULD VACATE THE JUDGMENT BELOW
AND REMAND THE CASE FOR FURTHER PROCEEDINGS CONSISTENT WITH THE VIEWS
EXPRESSED HEREIN. 

/1/  OF COURSE, FOR ME, THIS CASE PRESENTS A FOURTEENTH, NOT A
PURELY FIRST, AMENDMENT ISSUE, FOR THE QUESTION IS ONE OF THE
CONSTITUTIONALITY OF THE APPLICABLE PENNSYLVANIA LIBEL LAWS.  HOWEVER,
I HAVE FOUND IT CONVENIENT, IN THE COURSE OF THIS OPINION, OCCASIONALLY
TO SPEAK DIRECTLY OF THE FIRST AMENDMENT AS A SHORTHAND PHRASE FOR
IDENTIFYING THOSE CONSTITUTIONAL VALUES OF FREEDOM OF EXPRESSION
GUARANTEED TO INDIVIDUALS BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. 

/2/  I WOULD EXPRESSLY RESERVE, FOR A CASE PROPERLY PRESENTING IT,
THE ISSUE WHETHER THE NEW YORK TIMES RULE SHOULD HAVE ANY EFFECT ON
"PRIVACY" LITIGATION.  THE PROBLEM IS BRIEFLY TOUCHED UPON IN TIME,
INC. V. HILL, 385 U.S. 374, 404-405 (1967) (HARLAN, J., CONCURRING AND
DISSENTING). 

/3/  THE CONCLUSIONS I REACH IN PART III OF THIS OPINION ARE
SOMEWHAT DIFFERENT FROM THOSE I EMBRACED FOUR TERMS AGO IN CURTIS
PUBLISHING CO., SUPRA, AT 159-161.  WHERE MATTERS ARE IN FLUX, HOWEVER,
IT IS MORE IMPORTANT TO RE-THINK PAST CONCLUSIONS THAN TO ADHERE TO
THEM WITHOUT QUESTION AND THE PROBLEM UNDER CONSIDERATION REMAINS IN A
STATE OF EVOLUTION, AS IS ATTESTED TO BY ALL THE OPINIONS FILED TODAY. 
REFLECTION HAS CONVICED ME THAT MY EARLIER OPINION PAINTED WITH
SOMEWHAT TOO BROAD A BRUSH AND THAT A MORE PRECISE BALANCING OF THE
CONFLICTING INTERESTS INVOLVED IS CALLED FOR IN THIS DELICATE AREA. 

/4/  OF COURSE, I DO NOT ENVISION THAT, CONSISTENTLY WITH MY VIEWS,
THE STATES COULD ONLY EXACT SOME PREDETERMINED MULTIPLE OF THE ACTUAL
DAMAGES FOUND.  I SHOULD THINK A JURY COULD SIMPLY BE INSTRUCTED, ALONG
THE LINES SET OUT IN MY OPINION, ON THE LEGITIMATE USES OF THE PUNITIVE
DAMAGE AWARD AND THE NECESSITY FOR RELATING ANY SUCH JUDGMENT TO THE
HARM ACTUALLY DONE. 

/5/  THE PLURALITY OPINION STATES THAT THE "REAL THRUST" OF MY
POSITION IS THAT IT "WILL NOT 'CONSTITUTIONALIZE' THE FACTFINDING
PROCESS."  ANTE, AT 53.  IN FACT, I HAVE ATTEMPTED TO DEMONSTRATE
THROUGHOUT THIS OPINION THAT I BELIEVE THE POSITIONS OF MY BROTHERS
BRENNAN, BLACK, AND MARSHALL ALL, IN VARYING DEGREES, OVERSTATE THE
EXTENT TO WHICH LIBEL LAW IS INCOMPATIBLE WITH THE CONSTITUTIONAL
GUARANTEE OF FREEDOM OF EXPRESSION, AND HAVE POINTED OUT THAT I THINK
MY VIEWS HAVE MERIT "EVEN IF (THE OBJECTION NOTED IN MY BROTHER
MARSHALL'S OPINION) WERE NOT TENABLE."  SUPRA, AT 69.  MOREOVER, THE
ASSERTION THAT AN INQUIRY INTO WHETHER ACTUAL DAMAGES WERE SUFFERED
"WILL INVOLVE JUDGES EVEN MORE DEEPLY IN FACTFINDING," ANTE, AT 53,
THAN ASCERTAINING WHETHER "THE DEFENDANT IN FACT ENTERTAINED SERIOUS
DOUBTS AS TO THE TRUTH OF HIS PUBLICATION," ANTE, AT 56, OR WHETHER THE
PUBLICATION INVOLVED "AN EVENT OF PUBLIC OR GENERAL CONCERN," ANTE, AT
52, SEEMS TO ME TO CARRY ITS OWN REFUTATION.  THE FORMER FOCUSES ON
MEASURABLE, OBJECTIVE FACT; THE LATTER UPON SUBJECTIVE, PERSONAL
BELIEF.  FINALLY, I CANNOT SEE WHY JURIES MAY NOT TYPICALLY BE
ENTRUSTED RESPONSIBLY TO DETERMINE WHETHER A PUBLISHER WAS NEGLIGENT, A
FUNCTION THEY PERFORM IN JUDGING THE HARMFUL CONDUCT OF MOST OTHER
MEMBERS OF SOCIETY; OR WHY IT SHOULD BE MATERIALLY MORE DIFFICULT FOR
JUDGES TO OVERSEE SUCH DECISIONS WHERE A SPEAKER, RATHER THAN ANY OTHER
ACTOR, IS A DEFENDANT. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE STEWART JOINS,
DISSENTING. 

HERE, UNLIKE THE OTHER CASES INVOLVING THE NEW YORK TIMES /1/
DOCTRINE, WE ARE DEALING WITH AN INDIVIDUAL WHO HELD NO PUBLIC OFFICE,
WHO HAD NOT TAKEN PART IN ANY PUBLIC CONTROVERSY, AND WHO LIVED AN
OBSCURE PRIVATE LIFE.  /2/  GEORGE ROSENBLOOM, BEFORE THE EVENTS AND
REPORTS OF THE EVENTS INVOLVED HERE, WAS JUST ONE OF THE MILLIONS OF
AMERICANS WHO LIVE THEIR LIVES IN OBSCURITY. 

THE PROTECTION OF THE REPUTATION OF SUCH ANONYMOUS PERSONS "FROM
UNJUSTIFIED INVASION AND WRONGFUL HURT REFLECTS NO MORE THAN OUR BASIC
CONCEPT OF THE ESSENTIAL DIGNITY AND WORTH OF EVERY HUMAN BEING-- A
CONCEPT AT THE ROOT OF ANY DECENT SYSTEM OF ORDERED LIBERTY." 
ROSENBLATT V. BAER, 383 U.S. 75, 92 (1966) (STEWART, J., CONCURRING). 
BUT THE CONCEPT OF A CITIZENRY INFORMED BY A FREE AND UNFETTERED PRESS
IS ALSO BASIC TO OUR SYSTEM OF ORDERED LIBERTY.  HERE THESE TWO
ESSENTIAL AND FUNDAMENTAL VALUES CONFLICT. 

        I 

THE PLURALITY HAS ATTEMPTED TO RESOLVE THE CONFLICT BY CREATING A
CONDITIONAL CONSTITUTIONAL PRIVILEGE FOR DEFAMATION PUBLISHED IN
CONNECTION WITH AN EVENT THAT IS FOUND TO BE OF "PUBLIC OR GENERAL
CONCERN."  THE CONDITION FOR THE PRIVILEGE IS THAT THE DEFAMATION MUST
NOT BE PUBLISHED "WITH KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS
DISREGARD OF WHETHER IT WAS FALSE OR NOT."  I BELIEVE THAT THIS
APPROACH OFFERS INADEQUATE PROTECTION FOR BOTH OF THE BASIC VALUES THAT
ARE AT STAKE. 

IN ORDER FOR PARTICULAR DEFAMATION TO COME WITHIN THE PRIVILEGE
THERE MUST BE A DETERMINATION THAT THE EVENT WAS OF LEGITIMATE PUBLIC
INTEREST.  THAT DETERMINATION WILL HAVE TO BE MADE BY COURTS GENERALLY
AND, IN THE LAST ANALYSIS, BY THIS COURT IN PARTICULAR.  COURTS,
INCLUDING THIS ONE, ARE NOT ANOINTED WITH ANY EXTRAORDINARY
PRESCIENCE.  BUT, ASSUMING THAT UNDER THE RULE ANNOUNCED BY MR. JUSTICE
BRENNAN FOR THE PLURALITY, COURTS ARE NOT SIMPLY TO TAKE A POLL TO
DETERMINE WHETHER A SUBSTANTIAL PORTION OF THE POPULATION IS INTERESTED
OR CONCERNED IN A SUBJECT, COURTS WILL BE REQUIRED TO SOMEHOW PASS ON
THE LEGITIMACY OF INTEREST IN A PARTICULAR EVENT OR SUBJECT; WHAT
INFORMATION IS RELEVANT TO SELF-GOVERNMENT.  SEE WHITNEY V. CALIFORNIA,
274 U.S. 357, 375 (1927) (BRANDEIS, J., CONCURRING).  THE DANGER SUCH A
DOCTRINE PORTENDS FOR FREEDOM OF THE PRESS SEEMS APPARENT.     THE
PLURALITY'S DOCTRINE ALSO THREATENS SOCIETY'S INTEREST IN PROTECTING
PRIVATE INDIVIDUALS FROM BEING THRUST INTO THE PUBLIC EYE BY THE
DISTORTING LIGHT OF DEFAMATION.  THIS DANGER EXISTS SINCE ALL HUMAN
EVENTS ARE ARGUABLY WITHIN THE AREA OF "PUBLIC OR GENERAL CONCERN."  MY
BROTHER BRENNAN DOES NOT TRY TO PROVIDE GUIDELINES OR STANDARDS BY
WHICH COURTS ARE TO DECIDE THE SCOPE OF PUBLIC CONCERN.  HE DOES,
HOWEVER, INDICATE THAT AREAS EXIST THAT ARE NOT THE PROPER FOCUS OF
PUBLIC CONCERN, AND CITES GRISWOLD V. CONNECTICUT, 381 U.S. 479
(1965).  BUT IT IS APPARENT THAT IN AN ERA OF A DRAMATIC THREAT OF
OVERPOPULATION AND ONE IN WHICH PREVIOUSLY ACCEPTED STANDARDS OF
CONDUCT ARE WIDELY HERALDED AS OUTDATED, EVEN THE INTIMATE AND PERSONAL
CONCERNS WITH WHICH THE COURT DEALT IN THAT CASE CANNOT BE SAID TO BE
OUTSIDE THE AREA OF "PUBLIC OR GENERAL CONCERN." 

THE THREATS AND INADEQUACIES OF USING THE PLURALITY'S CONDITIONAL
PRIVILEGE TO RESOLVE THE CONFLICT BETWEEN THE TWO BASIC VALUES INVOLVED
HERE HAVE BEEN ILLUSTRATED BY THE EXPERIENCE COURTS HAVE HAD IN TRYING
TO DEAL WITH THE RIGHT OF PRIVACY.  SEE COHEN, A NEW NICHE FOR THE
FAULT PRINCIPLE:  A FORTHCOMING NEWSWORTHINESS PRIVILEGE IN LIBEL
CASES?, 18 U.C.L.A.L.REV.  371, 379-381 (1970); KALVEN, PRIVACY IN TORT
LAW-- WERE WARREN AND BRANDEIS WRONG?, 31 LAW & CONTEMP.PROB.  326, 336
(1966).  THE AUTHORS OF THE MOST FAMOUS OF ALL LAW REVIEW ARTICLES
RECOMMENDED THAT NO PROTECTION BE GIVEN TO PRIVACY INTERESTS WHEN THE
PUBLICATION DEALT WITH A "MATTER WHICH IS OF PUBLIC OR GENERAL
INTEREST."  WARREN & BRANDEIS, THE RIGHT TO PRIVACY, 4 HARV.L.REV. 
193, 214 (1890).  YET CASES DEALING WITH THIS CAVEAT RAISE SERIOUS
QUESTIONS WHETHER IT HAS SUBSTANTIALLY DESTROYED THE RIGHT OF PRIVACY
AS WARREN AND BRANDEIS ENVISIONED IT.  /3/  FOR EXAMPLE, THE
PUBLICATION OF A PICTURE OF THE BODY OF PLAINTIFF'S DAUGHTER
IMMEDIATELY AFTER HER DEATH IN AN AUTOMOBILE ACCIDENT WAS HELD TO BE
PROTECTED.  KELLEY V. POST PUBLISHING CO., 327 MASS. 275, 98 N.E.2D 286
(1951).  AND THE PUBLICATION OF THE DETAILS OF THE SOMEWHAT PECULIAR
BEHAVIOR OF A FORMER CHILD PRODIGY, WHO HAD A PASSION FOR OBSCURITY,
WAS FOUND TO INVOLVE A MATTER OF PUBLIC CONCERN.  SIDIS V. F-R PUB.
CORP., 113 F.2D 806 (CA2 1940). 

IN NEW YORK TIMES THE COURT CHOSE TO BALANCE THE COMPETING INTERESTS
BY SEEMING TO ANNOUNCE A GENERALLY APPLICABLE RULE.  HERE IT IS
APPARENT THAT THE GENERAL RULE ANNOUNCED CANNOT HAVE GENERAL
APPLICABILITY.  THE PLURALITY'S CONDITIONAL PRIVILEGE APPROACH, WHEN
COUPLED WITH CONSTITUTIONALIZING OF THE FACTFINDING PROCESS, /4/  SEE
PART VI OF MR. JUSTICE BRENNAN'S OPINION, RESULTS IN THE ADOPTION OF AN
AD HOC BALANCING OF THE TWO INTERESTS INVOLVED.  THE COURT IS REQUIRED
TO WEIGH THE NUANCES OF EACH PARTICULAR CIRCUMSTANCE ON ITS SCALE OF
VALUES REGARDING THE RELATIVE IMPORTANCE OF SOCIETY'S INTEREST IN
PROTECTING INDIVIDUALS FROM DEFAMATION AGAINST THE IMPORTANCE OF A FREE
PRESS.  THIS SCALE MAY ARGUABLY BE A MORE FINELY TUNED INSTRUMENT IN A
PARTICULAR CASE.  BUT WHATEVER PRECISION THE AD HOC METHOD SUPPLIES IS
ACHIEVED AT A SUBSTANTIAL COST IN PREDICTABILITY AND CERTAINTY. 
MOREOVER, SUCH AN APPROACH WILL REQUIRE THIS COURT TO ENGAGE IN A
CONSTANT AND CONTINUING SUPERVISION OF DEFAMATION LITIGATION THROUGHOUT
THE COUNTRY.  SEE TIME, INC. V. PAPE, 401 U.S. 279, 293 (1971) (HARLAN,
J., DISSENTING); CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 171
(1967) (OPINION OF BLACK, J.). 

UNDOUBTEDLY, AD HOC BALANCING MAY BE APPROPRIATE IN SOME
CIRCUMSTANCES THAT INVOLVE FIRST AMENDMENT PROBLEMS.  SEE, E.G., BATES
V. LITTLE ROCK, 361 U.S. 516 (1960); TINKER V. DES MOINES INDEPENDENT
COMMUNITY SCHOOL DIST., 393 U.S. 503 (1969).  BUT IN VIEW OF THE
SHORTCOMINGS OF MY BROTHER BRENNAN'S TEST, DEFAMATION OF A PRIVATE
INDIVIDUAL BY THE MASS MEDIA IS NOT ONE OF THE OCCASIONS FOR UNFETTERED
AD HOC BALANCING.  A GENERALLY APPLICABLE RESOLUTION IS AVAILABLE THAT
PROMISES TO PROVIDE AN ADEQUATE BALANCE GETWEEN THE INTEREST IN
PROTECTING INDIVIDUALS FROM DEFAMATION AND THE EQUALLY BASIC INTEREST
IN PROTECTING FREEDOM OF THE PRESS. 

        II 

AS THE PLURALITY RECOGNIZES HERE AND AS WAS RECOGNIZED AS THE BASIC
PREMISE OF THE NEW YORK TIMES PRINCIPLE, THE THREAT THAT DEFAMATION LAW
PRESENTS FOR THE VALUE ENCOMPASSED IN THE CONCEPT OF FREEDOM OF THE
PRESS IS THAT OF SELF-CENSORSHIP.  /5/  OUR NOTIONS OF LIBERTY REQUIRE
A FREE AND VIGOROUS PRESS THAT PRESENTS WHAT IT BELIEVES TO BE
INFORMATION OF INTEREST OR IMPORTANCE; NOT TIMOROUS, AFRAID OF AN ERROR
THAT LEAVES IT OPEN TO LIABILITY FOR HUNDREDS OF THOUSANDS OF DOLLARS. 
THE SIZE OF THE POTENTIAL JUDGMENT THAT MAY BE RENDERED AGAINST THE
PRESS MUST BE THE MOST SIGNIFICANT FACTOR IN PRODUCING SELF-CENSORSHIP-
A JUDGMENT LIKE THE ONE RENDERED AGAINST METROMEDIA WOULD BE FATAL TO
MANY SMALLER PUBLISHERS.  /6/ 

THE JUDGMENTS THAT MAY BE ENTERED IN DEFAMATION CASES ARE UNLIKE
THOSE THAT MAY BE ENTERED IN MOST LITIGATION SINCE THE BULK OF THE
AWARD IS GIVEN TO PUNISH THE DEFENDANT OR TO COMPENSATE FOR PRESUMED
DAMAGES.  HERE THE JURY AWARDED MR. ROSENBLOOM $725,000 IN PUNITIVE
DAMAGES.  /7/  THIS HUGE SUM WAS GIVEN NOT TO COMPENSATE HIM FOR ANY
INJURY BUT TO PUNISH METROMEDIA.  THE CONCEPT OF PUNITIVE OR EXEMPLARY
DAMAGES WAS FIRST ARTICULATED IN HUCKLE V. MONEY, 2 WILS.  205, 95
ENG.REP.  768 (K.B. 1763)-- ONE OF THE GENERAL WARRANT CASES.  THERE
LORD CAMDEN FOUND THAT THE POWER TO AWARD SUCH DAMAGES WAS INHERENT IN
THE JURY'S EXERCISE OF UNCONTROLLED DISCRETION IN THE AWARDING OF
DAMAGES.  SEE 1 T.SEDGWICK, DAMAGES 347-350 (9TH ED. 1912).  TODAY
THESE DAMAGES ARE RATIONALIZED AS A WAY TO PUNISH THE WRONGDOER AND TO
ADMONISH OTHERS NOT TO ERR.  SEE MORRIS PUNITIVE DAMAGES IN TORT CASES,
44 HARV.L.REV.  1172 (1931).  THUS THEY SERVE THE SAME FUNCTION AS
CRIMINAL PENALTIES AND ARE IN EFFECT PRIVATE FINES.  UNLIKE CRIMINAL
PENALTIES, HOWEVER, PUNITIVE DAMAGES ARE NOT AWARDED WITHIN DISCERNIBLE
LIMITS BUT CAN BE AWARDED IN ALMOST ANY AMOUNT.  SINCE THERE IS NOT
EVEN AN ATTEMPT TO OFFSET ANY PALPABLE LOSS AND SINCE THESE DAMAGES ARE
THE DIRECT PRODUCT OF THE ANCIENT THEORY OF UNLIMITED JURY DISCRETION,
THE ONLY LIMIT PLACED ON THE JURY IN AWARDING PUNITIVE DAMAGES IS THAT
THE DAMAGES NOT BE "EXCESSIVE," AND IN SOME JURISDICTIONS, THAT THEY
BEAR SOME RELATIONSHIP TO THE AMOUNT OF COMPENSATORY DAMAGES AWARDED. 
/8/  SEE H. OLECK, DAMAGES TO TO PERSONS AND PROPERTY SEC. 275, PP. 557
560 (1955).  THE MANNER IN WHICH UNLIMITED DISCRETION MAY BE EXERCISED
IS PLAINLY UNPREDICTABLE.  AND FEAR OF THE EXTENSIVE AWARDS THAT MAY BE
GIVEN UNDER THE DOCTRINE MUST NECESSARILY PRODUCE THE IMPINGEMENT ON
FREEDOM OF THE PRESS RECOGNIZED IN NEW YORK TIMES. 

IN ADDITION TO THE HUGE AWARDS THAT MAY BE GIVEN UNDER THE LABEL OF
PUNITIVE OR EXEMPLARY DAMAGES, OTHER DOCTRINES IN THE LAW OF DEFAMATION
ALLOW SUBSTANTIAL DAMAGES WITHOUT EVEN AN OFFER OF EVIDENCE THAT THERE
WAS ACTUALLY INJURY.  SEE MONTGOMERY V. DENNISON, 363 PA. 255, 69 A.2D
520 (1949); RESTATEMENT OF TORTS SEC 621 (1938).  THESE DOCTRINES
CREATE A LEGAL PRESUMPTION THAT SUBSTANTIAL INJURIES "NORMALLY FLOW"
FROM DEFAMATION.  THERE IS NO REQUIREMENT THAT THERE BE EVEN AN OFFER
OF PROOF THAT THERE WAS IN FACT FINANCIAL LOSS, PHYSICAL OR EMOTIONAL
SUFFERING, OR THAT THE PLAINTIFF'S STANDING IN THE COMMUNITY WAS
DIMINISHED.  THE EFFECT IS TO GIVE THE JURY ESSENTIALLY UNLIMITED
DISCRETION AND THUS TO GIVE IT MUCH THE SAME POWER IT EXERCISES UNDER
THE LABELS OF PUNITIVE OR EXEMPLARY DAMAGES.  THE IMPINGEMENT UPON FREE
SPEECH IS THE SAME NO MATTER WHAT LABEL IS ATTACHED. 

THE UNLIMITED DISCRETION EXERCISED BY JURIES IN AWARDING PUNITIVE
AND PRESUMED DAMAGES COMPOUNDS THE PROBLEM OF SELF-CENSORSHIP THAT
NECESSARILY RESULTS FROM THE AWARDING OF HUGE JUDGMENTS.  THIS
DISCRETION ALLOWS JURIES TO PENALIZE HEAVILY THE UNORTHODOX AND THE
UNPOPULAR AND EXACT LITTLE FROM OTHERS.  SUCH FREE WHEELING DISCRETION
PRESENTS OBVIOUS AND BASIC THREATS TO SOCIETY'S INTEREST IN FREEDOM OF
THE PRESS.  AND THE UTILITY OF THE DISCRETION IN FOSTERING SOCIETY'S
INTEREST IN PROTECTING INDIVIDUALS FROM DEFAMATION IS AT BEST VAGUE AND
UNCERTAIN.  THESE AWARDS ARE NOT TO COMPENSATE VICTIMS; THEY ARE ONLY
WINDFALLS.  CERTAINLY, THE LARGE JUDGMENTS THAT CAN BE AWARDED ADMONISH
THE PARTICULAR DEFENDANT AFFECTED AS WELL AS OTHER POTENTIAL
TRANSGRESSORS NOT TO PUBLISH DEFAMATION.  THE DEGREE OF ADMONITION--
THE AMOUNT OF THE JUDGMENT IN RELATION TO THE DEFAMER'S MEANS-- IS NOT,
HOWEVER, TIED TO ANY CONCEPT OF WHAT IS NECESSARY TO DETER FUTURE
CONDUCT NOR IS THERE EVEN ANY WAY TO DETERMINE THAT THE JURY HAS
CONSIDERED THE CULPABILITY OF THE CONDUCT INVOLVED IN THE PARTICULAR
CASE.  THUS THE ESSENCE OF THE DISCRETION IS UNPREDICTABILITY AND
UNCERTAINTY. 

THE THREATS TO SOCIETY'S INTEREST IN FREEDOM OF THE PRESS THAT ARE
INVOLVED IN PUNITIVE AND PRESUMED DAMAGES CAN LARGELY BE ELIMINATED BY
RESTRICTING THE AWARD OF DAMAGES TO PROVED, ACTUAL INJURIES.  THE
JURY'S WIDERANGING DISCRETION WILL LARGELY BE ELIMINATED SINCE THE
AWARD WILL BE BASED ON ESSENTIALLY OBJECTIVE, DISCERNIBLE FACTORS.  AND
THE SELF-CENSORSHIP THAT RESULTS FROM THE UNCERTAINTY CREATED BY THE
DISCRETION AS WELL AS THE SELF-CENSORSHIP RESULTING FROM THE FEAR OF
LARGE JUDGMENTS THEMSELVES WOULD BE REDUCED.  AT THE SAME TIME,
SOCIETY'S INTEREST IN PROTECTING INDIVIDUALS FROM DEFAMATION WILL STILL
BE FOSTERED.  THE VICTIMS OF THE DEFAMATION WILL BE COMPENSATED FOR
THEIR REAL INJURIES.  THEY WILL NOT BE, HOWEVER, ASSUAGED FAR BEYOND
THEIR WOUNDS.  AND, THERE WILL BE A SUBSTANTIAL ALTHOUGH IMPRECISE AND
IMPERFECT ADMONITION TO AVOID FUTURE DEFAMATION BY IMPOSING THE
REQUIREMENT THAT THERE BE COMPENSATION FOR ACTUAL DAMAGES. 

MY BROTHER HARLAN ARGUES THAT IT IS UNNECESSARY TO GO SO FAR. 
ALTHOUGH HE RECOGNIZES THE DANGERS INVOLVED IN FAILING "TO CONFINE THE
AMOUNT OF JURY VERDICTS . . . WITHIN ANY ASCERTAINABLE LIMITS,"  MR.
JUSTICE HARLAND SUGGESTS THAT A FINDING OF ACTUAL MALICE PUNITIVE
DAMAGES MAY BE AWARDED IF THEY "BEAR A REASONABLE AND PURPOSEFUL
RELATIONSHIP TO THE ACTUAL HARM DONE."  MY BROTHER HARLAN ENVISIONS
JURORS BEING INSTRUCTED /9/  TO CONSIDER THE DETERRENT FUNCTION OF
PUNITIVE DAMAGES AND TO TRY TO GEAR THE PUNITIVE DAMAGES AWARDED IN
SOME UNDETERMINED WAY TO ACTUAL INJURY.  APPARENTLY, THE JURY UNDER THE
SUPERVISION OF THE COURT WOULD WEIGH THE CONTENT OF THE SPEECH AND THE
SURROUNDING CIRCUMSTANCES-- INTER ALIA, THE POSITION OF THE PLAINTIFF,
THE WEALTH OF THE DEFENDANT, AND THE NATURE OF THE INSTRUMENT OF
PUBLICATION-- ON THE SCALE OF THEIR VALUES AND DETERMINE WHAT AMOUNT IS
NECESSARY IN LIGHT OF THE VARIOUS INTERESTS INVOLVED.  SINCE THERE
WOULD BE NO OBJECTIVE STANDARD BY WHICH TO MEASURE THE JURY'S DECISION
THERE WOULD BE NO PREDETERMINED LIMIT OF JURY DISCRETION AND ALL OF THE
THREATS TO FREEDOM OF THE PRESS INVOLVED IN SUCH DISCRETION WOULD
REMAIN.  THE CHANT OF SOME NEW INCANTATION WILL, OF COURSE, PROVIDE
CLEAR AUTHORITY FOR A COURT TO SUBSTITUTE ITS VALUES FOR THE JURY'S AND
REMAKE THE DECISION.  IF THIS IS WHAT MY BROTHER HARLAN ENVISIONS, HE
IS MERELY MOVING THE AD HOC BALANCING FROM THE QUESTION OF FAULT TO THE
QUESTION OF DAMAGES. 

I BELIEVE THAT THE APPROPRIATE RESOLUTION OF THE CLASH OF SOCIETAL
VALUES HERE IS TO RESTRICT DAMAGES TO ACTUAL LOSSES.  SEE HILL, THE
BILL OF RIGHTS AND THE SUPERVISORY POWER, 69 COL.L.REV.  181, 191 N. 62
(1969).  OF COURSE, DAMAGES CAN BE AWARDED FOR MORE THAN DIRECT
PECUNIARY LOSS BUT THEY MUST BE RELATED TO SOME PROVED HARM.  SEE
WRIGHT, DEFAMATION, PRIVACY, AND THE PUBLIC'S RIGHT TO KNOW:  A
NATIONAL PROBLEM AND A NEW APPROACH, 46 TEX.L.REV.  630, 648 (1968). 
IF AWARDS ARE SO LIMITED IN CASES INVOLVING PRIVATE INDIVIDUALS--
PERSONS FIRST BROUGHT TO PUBLIC ATTENTION BY THE DEFAMATION THAT IS THE
SUBJECT OF THE LAWSUIT-- IT WILL BE UNNECESSARY TO RELY, AS BOTH THE
PLURALITY AND TO SOME EXTENT MR. JUSTICE HARLAN DO, ON SOMEWHAT ELUSIVE
CONCEPTS /10/  OF THE DEGREE OF FAULT, AND UNNECESSARY, FOR
CONSTITUTIONAL PURPOSES, TO ENGAGE IN AD HOC BALANCING OF THE COMPETING
INTERESTS INVOLVED.  /11/  STATES WOULD BE ESSENTIALLY FREE TO CONTINUE
THE EVOLUTION OF THE COMMON LAW OF DEFAMATION AND TO ARTICULATE
WHATEVER FAULT STANDARD BEST SUITS THE STATE'S NEED.  /12/ 

THE ONLY CONSTITUTIONAL CAVEAT SHOULD BE THAT ABSOLUTE OR STRICT
LIABILITY, LIKE UNCONTROLLED DAMAGES AND PRIVATE FINES, CANNOT BE
USED.  /13/  THE EFFECT OF IMPOSING LIABILITY WITHOUT FAULT IS TO PLACE
"THE PRINTED, WRITTEN OR SPOKEN WORD IN THE SAME CLASS WITH THE USE OF
EXPLOSIVES OR THE KEEPING OF DANGEROUS ANIMALS."  W. PROSSER, THE LAW
OF TORTS SEC. 108, P. 792 (3D ED. 1964).  CLEARLY, THIS IS INCONSISTENT
WITH THE CONCEPTS OF FREEDOM OF THE PRESS. 

THUS IN THIS CASE I WOULD REVERSE THE JUDGMENT OF THE COURT OF
APPEALS FOR THE THIRD CIRCUIT AND REMAND THE CASE FOR A DETERMINATION
OF WHETHER MR. ROSENBLOOM CAN SHOW ANY ACTUAL LOSS. 

/1/  NEW YORK TIME CO. V. SULLIVAN, 376 U.S. 254; (1964). 

/2/  SEE, E.G., ASSOCIATED PRESS V. WALKER, 388 U.S. 130 (1967);
CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130 (1967); BECKLEY NEWSPAPERS
CORP. V. HANKS, 389 U.S. 81 (1967); GREENBELT PUBLISHING ASSN. V.
BRESLER, 398 U.S. 6 (1970); ROSENBLATT V. BAER, 383 U.S. 75 (1966). 
/3/  FOR CASES IN WHICH THE COURTS HAVE PROTECTED THE PRIVACY OF
PERSONS INVOLVED IN DRAMATIC PUBLIC EVENTS SEE MAU V. RIO GRANDE OIL,
INC., 28 F.SUPP.  845 (ND CAL. 1939), AND MELVIN V. REID, 112 CAL.APP. 
285, 297 P. 91 (1931). 

/4/  SEE TIME, INC. V. PAPE, 401 U.S. 279 (1971). 

/5/  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.,AT 279. 

/6/  THE JURY AWARDED MR. ROSENBLOOM $25,000 IN GENERAL DAMAGES AND
$725,000 IN PUNITIVE DAMAGES.  THE DISTRICT COURT REDUCED THE PUNITIVE
DAMAGES TO $250,000 ON REMITTITUR. 

/7/  SEE N. 6, SUPRA.     /8/  MOST JURISDICTIONS IN THIS COUNTRY
RECOGNIZE THE CONCEPT OF PUNITIVE OR EXEMPLARY DAMAGES.  FOUR STATES--
ILLINOIS, MASSACHUSETTS, NEBRASKA, AND WASHINGTON-- APPARENTLY DO NOT
RECOGNIZE THE DOCTRINE.  IN LOUISIANA AND INDIANA THE DOCTRINE HAS
LIMITED APPLICABILITY.  SEE H. OLECK, DAMAGES TO PERSONS AND PROPERTY
SEC. 269, P. 541 (1955). 

/9/  "(A) JURY INSTRUCTION IS NOT ABRACADABRA.  IT IS NOT A MAGICAL
INCANTATION, THE SLIGHTEST DEVIATION FROM WHICH WILL BREAK THE SPELL. 
ONLY ITS POORER EXAMPLES ARE FORMALISTIC CODES RECITED BY A TRIAL JUDGE
TO PLEASE APPELLATE MASTERS.  AT ITS BEST, IT IS SIMPLE, RUGGED
COMMUNICATION FROM A TRIAL JUDGE TO A JURY OF ORDINARY PEOPLE, ENTITLED
TO BE APPRAISED IN TERMS OF ITS NET EFFECT."  TIME, INC. V. HILL, 385
U.S. 374, 418 (1967) (FORTAS, J., DISSENTING). 

SEE N. 9, SUPRA. 

/11/  OF COURSE, RELIANCE ON LIMITING AWARDS TO COMPENSATION FOR
ACTUAL LOSS WILL REQUIRE SOME REVIEW OF THE FACTS OF PARTICULAR CASES. 
BUT THAT REVIEW WILL BE LIMITED TO ESSENTIALLY OBJECTIVELY DETERMINABLE
ISSUES; THE CONTENTS OF THE PUBLICATION WILL NOT HAVE TO BE
CONSIDERED. 

/12/  LEAVING STATES FREE TO IMPOSE LIABILITY WHEN DEFAMATION IS
FOUND TO BE THE RESULT OF NEGLIGENT CONDUCT, SHOULD MAKE IT SOMEWHAT
MORE LIKELY THAT A PRIVATE PERSON WILL HAVE A MEANINGFUL FORUM IN WHICH
TO VINDICATE HIS REPUTATION.  IF THE STANDARD OF CARE IS HIGHER, IT
WOULD SEEM THAT PUBLISHERS WILL BE MORE LIKELY TO ASSERT THE DEFENSE OF
TRUTH THAN SIMPLY CONTEND THAT THEY DID NOT BREACH THE STANDARD. 

/13/  STRICT LIABILITY FOR DEFAMATION WAS FIRST CLEARLY ESTABLISHED
IN JONES V. E. HULTON & CO., (1909) 2 K.B. 444, AFF'D, (1910) A.C. 20. 
SEE SMITH, JONES V. HULTON:  THREE CONFLICTING JUDICIAL VIEWS AS TO A
QUESTION OF DEFAMATION, 60 U.PA.L.REV.  365 AND 461 (1912).  THE
STANDARD HAS BEEN APPLIED IN MANY JURISDICTIONS IN THIS COUNTRY.  SEE,
E.G., UPTON V. TIMES-DEMOCRAT PUBLISHING CO., 104 LA. 141, 28 SO. 970
(1900); LAUDATI V. STEA, 44 R.I. 303, 117 A. 422 (1922); TAYLOR V.
HEARST, 107 CAL. 262, 40 P. 392 (1895).  SEE ALSO RESTATEMENT OF TORTS
SEC. 582, COMMENT G (1938).  LIABILITY WITHOUT FAULT HAS NOT BEEN
APPLIED, HOWEVER, IN PENNSYLVANIA.  SEE SUMMIT HOTEL CO. V NATIONAL
BROADCASTING CO., 336 PA. 182, 8 A.2D 302 (1939), PA. STAT. ANN., TIT.
12, SEC. 1583 (1953). 

RAMSEY CLARK ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF
WAS BENJAMIN PAUL. 

BERNARD G. SEGAL ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE IRVING R. SEGAL, SAMUEL D. SLADE, AND CARLETON G. ELDRIDGE,
JR.
..END :





GRIFFIN V. BRECKENRIDGE, 403 U.S. 88 


       GRIFFIN ET AL. V. BRECKENRIDGE ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

       FIFTH CIRCUIT

        NO. 144.  ARGUED JANUARY 13-14, 1971-- DECIDED JUNE 7,
1971 


PETITIONERS, NEGRO CITIZENS OF MISSISSIPPI, FILED A DAMAGES ACTIONS
UNDER 42 U.S.C. 1985(3), CHARGING THAT RESPONDENTS, WHITE CITIZENS OF
MISSISSIPPI, CONSPIRED TO ASSAULT PETITIONERS, WHO WERE PASSENGERS
"TRAVELLING UPON THE FEDERAL, STATE, AND LOCAL HIGHWAYS" IN AN
AUTOMOBILE DRIVEN BY ONE GRADY, A CITIZEN OF TENNESSEE, FOR THE PURPOSE
OF PREVENTING THEM "AND OTHER NEGRO-AMERICANS, THROUGH . . . FORCE,
VIOLENCE AND INTIMIDATION, FROM SEEKING THE EQUAL PROTECTION OF THE
LAWS AND FROM ENJOYING THE EQUAL RIGHTS, PRIVILEGES AND IMMUNITIES OF
CITIZENS UNDER THE LAWS OF THE UNITED STATES AND THE STATE OF
MISSISSIPPI," INCLUDING RIGHTS TO FREE SPEECH, ASSEMBLY, ASSOCIATION,
AND MOVEMENT, AND THE RIGHT NOT TO BE ENSLAVED.  THE COMPLAINT ALLEGED
THAT PURSUANT TO THE CONSPIRACY RESPONDENTS, MISTAKENLY BELIEVING GRADY
TO BE A CIVIL RIGHTS WORKER, BLOCKED THE TRAVELLERS' PASSAGE ON THE
PUBLIC HIGHWAYS, FORCED THEM FROM THE CAR, HELD THEM AT BAY WITH
FIREARMS, AND AMIDST THREATS OF MURDER CLUBBED THEM, INFLICTING SERIOUS
PHYSICAL INJURY.  SECTION 1985(3) PROVIDES:  "IF TWO OR MORE PERSONS .
. . CONSPIRE OR GO IN DISGUISE ON THE HIGHWAY OR ON THE PREMISES OF
ANOTHER, FOR THE PURPOSE OF DEPRIVING . . . ANY PERSON OR CLASS OF
PERSONS OF THE EQUAL PROTECTION OF THE LAWS, OR OF EQUAL PRIVILEGES AND
IMMUNITIES UNDER THE LAWS (AND) IN ANY CASE OF CONSPIRACY SET FORTH IN
THIS SECTION, IF ONE OR MORE PERSONS ENGAGED THEREIN DO . . . ANY ACT
IN FURTHERANCE OF THE OBJECT OF SUCH CONSPIRACY, WHEREBY ANOTHER IS
INJURED . . . OR DEPRIVED OF . . . ANY RIGHT OR PRIVILEGE OF A CITIZEN
OF THE UNITED STATES, THE PARTY SO INJURED OR DEPRIVED" MAY HAVE A
CAUSE OF ACTION FOR DAMAGES AGAINST THE CONSPIRATORS.  THE DISTRICT
COURT DISMISSED THE COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION,
RELYING ON COLLINS V. HARDYMAN, 341 U.S. 651, WHERE THE COURT IN ORDER
TO AVOID DIFFICULT CONSTITUTIONAL QUESTIONS IN EFFECT CONSTRUED SEC.
1985(3) TO REACH ONLY CONSPIRACIES UNDER COLOR OF STATE LAW.  THE COURT
OF APPEALS AFFIRMED.  HELD: 

1.  SECTION 1985(3) DOES NOT REQUIRE STATE ACTION BUT REACHES
PRIVATE CONSPIRACIES SUCH AS THE ONE ALLEGED IN THE COMPLAINT HERE,
THAT ARE AIMED AT INVIDIOUSLY DISCRIMINATORY DEPRIVATION OF THE EQUAL
ENJOYMENT OF RIGHTS SECURED TO ALL BY LAW, AS IS CLEARLY MANIFESTED BY
THE WORDING AND LEGISLATIVE HISTORY OF THE STATUTE AND COMPANION
STATUTORY PROVISIONS, AND THE CONSTITUTIONAL IMPEDIMENTS THAT
INFLUENCED THE COURT'S CONSTRUCTION OF THE STATUTE IN COLLINS, SUPRA,
AS IS CLEAR FROM MORE RECENT DECISIONS, SIMPLY DO NOT EXIST, PP. 95
103. 

2.  CONGRESS HAD THE CONSTITUTIONAL AUTHORITY TO REACH A PRIVATE
CONSPIRACY OF THE SORT ALLEGED IN THE COMPLAINT IN THIS CASE BOTH UNDER
SEC. 2 OF THE THIRTEENTH AMENDMENT AND UNDER ITS POWER TO PROTECT THE
RIGHT OF INTERSTATE TRAVEL.  PP. 104-106. 

410 F.2D 817, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, DOUGLAS, HARLAN (EXCEPT FOR PART V-B), BRENNAN, WHITE,
MARSHALL, AND BLACKMUN, JJ., JOINED.  HARLAN, J., FILED A CONCURRING
STATEMENT, POST, P. 107. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION BEGAN WHEN THE PETITIONERS FILED A COMPLAINT IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI,
SEEKING COMPENSATORY AND PUNITIVE DAMAGES AND ALLEGING, IN SUBSTANTIAL
PART, AS FOLLOWS: 

     "2.  THE PLAINTIFFS ARE NEGRO CITIZENS OF THE UNITED STATES
AND

  RESIDENTS OF KEMPER COUNTY, MISSISSIPPI . . . . 

     "3.  THE DEFENDANTS, LAVON BRECKENRIDGE AND JAMES CALVIN

  BRECKENRIDGE, ARE WHITE ADULT CITIZENS OF THE UNITED STATES

  RESIDING IN DEKALB, KEMPER COUNTY, MISSISSIPPI. 

     "4.  ON JULY 2, 1966, THE . . . PLAINTIFFS . . . WERE

  PASSENGERS IN AN AUTOMOBILE BELONGING TO AND OPERATED BY R. G.

  GRADY OF MEMPHIS, TENNESSEE.  THEY WERE TRAVELLING UPON THE

FEDERAL, STATE AND LOCAL HIGHWAYS IN AND ABOUT DEKALB,

MISSISSIPPI, PERFORMING VARIOUS ERRANDS AND VISITING FRIENDS. 

     "5.  ON JULY 2, 1966 DEFENDANTS, ACTING UNDER A MISTAKEN
BELIEF

  THAT R. G. GRADY WAS A WORKER FOR CIVIL RIGHTS FOR NEGROES,

  WILFULLY AND MALICIOUSLY CONSPIRED, PLANNED, AND AGREED TO BLOCK

  THE PASSAGE OF SAID PLAINTIFFS IN SAID AUTOMOBILE UPON THE PUBLIC

  HIGHWAYS, TO STOP AND DETAIN THEM AND TO ASSAULT, BEAT AND INJURE

  THEM WITH DEADLY WEAPONS.  THEIR PURPOSE WAS TO PREVENT SAID

  PLAINTIFFS AND OTHER NEGRO-AMERICANS, THROUGH SUCH FORCE,

  VIOLENCE AND INTIMIDATION, FROM SEEKING THE EQUAL PROTECTION OF

 THE LAWS AND FROM ENJOYING THE EQUAL RIGHTS, PRIVILEGES AND

  IMMUNITIES OF CITIZENS UNDER THE LAWS OF THE UNITED STATES AND

  THE STATE OF MISSISSIPPI, INCLUDING BUT NOT LIMITED TO THEIR

  RIGHTS TO FREEDOM OF SPEECH, MOVEMENT, ASSOCIATION AND ASSEMBLY;

  THEIR RIGHT TO PETITION THEIR GOVERNMENT FOR REDRESS OF THEIR

  GRIEVANCES; THEIR RIGHTS TO BE SECURE IN THEIR PERSONS AND THEIR

  HOMES; AND THEIR RIGHTS NOT TO BE ENSLAVED NOR DEPRIVED OF LIFE

  AND LIBERTY OTHER THAN BY DUE PROCESS OF LAW. 

     "6.  PURSUANT TO THEIR CONSPIRACY, DEFENDANTS DROVE THEIR
TRUCK

  INTO THE PATH OF GRADY'S AUTOMOBILE AND BLOCKED ITS PASSAGE OVER

THE PUBLIC ROAD.  BOTH DEFENDANTS THEN FORCED GRADY AND SAID

  PLAINTIFFS TO GET OUT OF GRADY'S AUTOMOBILE AND PREVENTED SAID

  PLAINTIFFS FROM ESCAPING WHILE DEFENDANT JAMES CALVIN

  BRECKENRIDGE CLUBBED GRADY WITH A BLACKJACK, PIPE OR OTHER KIND

  OF CLUB BY POINTING FIREARMS AT SAID PLAINTIFFS AND UTTERING

  THREATS TO KILL AND INJURE THEM IF DEFENDANTS' ORDERS WERE NOT

  OBEYED, THEREBY TERRORIZING THEM TO THE UTMOST DEGREE AND

  DEPRIVING THEM OF THEIR LIBERTY. 

     "7.  PURSUANT TO THEIR CONSPIRACY, DEFENDANTS WILFULLY,

  INTENTIONALLY, AND MALICIOUSLY MENACED AND ASSAULTED EACH OF THE

  SAID PLAINTIFFS BY POINTING FIREARMS AND WIELDING DEADLY

  BLACKJACKS, PIPES OR OTHER KIND OF CLUBS, WHILE UTTERING THREATS

  TO KILL AND INJURE SAID PLAINTIFFS, CAUSING THEM TO BECOME

  STRICKEN WITH FEAR OF IMMEDIATE INJURY AND DEATH AND TO SUFFER

  EXTREME TERROR, MENTAL ANGUISH AND EMOTIONAL AND PHYSICAL

  DISTRESS. 

"8.  PURSUANT TO DEFENDANTS' COMSPIRACY, DEFENDANT JAMES CALVIN

  BRECKENRIDGE THEN WILFULLY, INTENTIONALLY AND MALICIOUSLY CLUBBED

  EACH OF SAID PLAINTIFFS ON OR ABOUT THE HEAD, SEVERELY INJURING

  ALL OF THEM, WHILE BOTH DEFENDANTS CONTINUED TO ASSAULT SAID

  PLAINTIFFS AND PREVENT THEIR ESCAPE BY POINTING THEIR FIREARMS AT

  THEM. 

.          .          .          . 

     "12.  BY THEIR CONSPIRACY AND ACTS PURSUANT THERETO, THE

  DEFENDANTS HAVE WILFULLY AND MALICIOUSLY, DIRECTLY AND

  INDIRECTLY, INTIMIDATED AND PREVENTED THE . . . PLAINTIFFS . . .

  AND OTHER NEGRO-AMERICANS FROM ENJOYING AND EXERCISING THEIR

  RIGHTS, PRIVILEGES AND IMMUNITIES AS CITIZENS OF THE UNITED

STATES AND THE STATE OF MISSISSIPPI, INCLUDING BUT NOT LIMITED

  TO, THEIR RIGHTS TO FREEDOM OF SPEECH, MOVEMENT, ASSOCIATION AND

  ASSEMBLY; THE RIGHT TO PETITION THEIR GOVERNMENT FOR REDRESS OF

  GRIEVANCES; THEIR RIGHT TO BE SECURE IN THEIR PERSON; THEIR RIGHT

  NOT TO BE ENSLAVED NOR DEPRIVED OF LIFE, LIBERTY OR PROPERTY

  OTHER THAN BY DUE PROCESS OF LAW, AND THEIR RIGHTS TO TRAVEL THE

  PUBLIC HIGHWAYS WITHOUT RESTRAINT IN THE SAME TERMS AS WHITE

  CITIZENS IN KEMPER COUNTY, MISSISIPPI . . ." 

THE JURISDICTION OF THE FEDERAL COURT WAS INVOKED UNDER THE LANGUAGE
OF REV. STAT. SEC. 1980, 42 U.S.C. 1985(3), WHICH PROVIDES: 

     "IF TWO OR MORE PERSONS IN ANY STATE OR TERRITORY CONSPIRE OR

  GO IN DISGUISE ON THE HIGHWAY OR ON THE PREMISES OF ANOTHER, FOR

  THE PURPOSE OF DEPRIVING, EITHER DIRECTLY OR INDIRECTLY, ANY

  PERSON OR CLASS OF PERSONS OF THE EQUAL PROTECTION OF THE LAWS,

  OR OF EQUAL PRIVILEGES AND IMMUNITIES UNDER THE LAWS (AND) IN ANY

  CASE OF CONSPIRACY SET FORTH IN THIS SECTION, IF ONE OR MORE

  PERSONS ENGAGED THEREIN DO, OR CAUSE TO BE DONE, ANY ACT IN

  FURTHERANCE OF THE OBJECT OF SUCH CONSPIRACY, WHEREBY ANOTHER IS

  INJURED IN HIS PERSON OR PROPERTY, OR DEPRIVED OF HAVING AND

  EXERCISING ANY RIGHT OR PRIVILEGE OF A CITIZEN OF THE UNITED

  STATES, THE PARTY SO INJURED OR DEPRIVED MAY HAVE AN ACTION FOR

THE RECOVERY OF DAMAGES, OCCASIONED BY SUCH INJURY OR

DEPRIVATION, AGAINST ANY ONE OR MORE OF THE CONSPIRATORS." 

THE DISTRICT COURT DISMISSED THE COMPLAINT FOR FAILURE TO STATE A
CAUSE OF ACTION, RELYING ON THE AUTHORITY OF THIS COURT'S OPINION IN
COLLINS V. HARDYMAN, 341 U.S. 651, WHICH IN EFFECT CONSTRUED THE ABOVE
LANGUAGE OF SEC. 1985(3) AS REACHING ONLY CONSPIRACIES UNDER COLOR OF
STATE LAW.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED THE
JUDGMENT OF DISMISSAL.  410 F.2D 817.  JUDGE GOLDBERG'S THOROUGH
OPINION FOR THAT COURT EXPRESSED "SERIOUS DOUBTS" AS TO THE "CONTINUED
VITALITY" OF COLLINS V. HARDYMAN, ID., AT 823, AND STATED THAT "IT
WOULD NOT SURPRISE US IF COLLINS V. HARDYMAN WERE DISAPPROVED AND IF
SEC.1985(3) WERE HELD TO EMBRACE PRIVATE CONSPIRACIES TO INTERFERE WITH
RIGHTS OF NATIONAL CITIZENSHIP," ID., AT 825-826 (FOOTNOTE OMITTED),
BUT CONCLUDED THAT "(SINCE WE MAY NOT ADOPT WHAT THE SUPREME COURT HAS
EXPRESSLY REJECTED, WE OBEDIENTLY ABIDE THE MANDATE IN COLLINS," ID.,
AT 826-827.  WE GRANTED CERTIORARI, 397 U.S. 1074, TO CONSIDER
QUESTIONS GOING TO THE SCOPE AND CONSTITUTIONALITY OF 42 U.S.C.
1985(3). 

        I 

COLLINS V. HARDYMAN WAS DECIDED 20 YEARS AGO.  THE COMPLAINT IN THAT
CASE ALLEGED THAT THE PLAINTIFFS WERE MEMBERS OF A POLITICAL CLUB THAT
HAD SCHEDULED A MEETING TO ADOPT A RESOLUTION OPPOSING THE MARSHALL
PLAN, AND TO SEND COPIES OF THE RESOLUTION TO APPROPRIATE FEDERAL
OFFICIALS; THAT THE DEFENDANTS CONSPIRED TO DEPRIVE THE PLAINTIFFS OF
THEIR RIGHTS AS CITIZENS OF THE UNITED STATES PEACEABLY TO ASSEMBLE AND
TO EQUAL PRIVILEGES AND IMMUNITIES UNDER THE LAWS OF THE UNITED STATES;
THAT, IN FURTHERANCE OF THE CONSPIRACY, THE DEFENDANTS PROCEEDED TO THE
MEETING SITE AND, BY THREATS AND VIOLENCE, BROKE UP THE MEETING, THUS
INTERFERING WITH THE RIGHT OF THE PLAINTIFFS TO PETITION THE GOVERNMENT
FOR THE REDRESS OF GRIEVANCES; AND THAT THE DEFENDANTS DID NOT
INTERFERE OR CONSPIRE TO INTERFERE WITH THE MEETINGS OF OTHER POLITICAL
GROUPS WITH WHOSE OPINIONS THE DEFENDANTS AGREED.  THE COURT HELD THAT
THIS COMPLAINT DID NOT STATE A CAUSE OF ACTION UNDER SECTION 1985(3):
/1/ 

     "THE COMPLAINT MAKES NO CLAIM THAT THE CONSPIRACY OR THE OVERT

  ACTS INVOLVED ANY ACTION BY STATE OFFICIALS, OR THAT DEFENDANTS

  EVEN PRETENDED TO ACT UNDER COLOR OF STATE LAW.  IT IS NOT SHOWN

  THAT DEFENDANTS HAD OR CLAIMED ANY PROTECTION OR IMMUNITY FROM

THE LAW OF THE STATE, OR THAT THEY IN FACT ENJOYED SUCH BECAUSE

  OF ANY ACT OR OMISSION BY STATE AUTHORITIES."  341 U.S.,AT 655. 

     "WHAT WE HAVE HERE IS NOT A CONSPIRACY TO AFFECT IN ANY WAY

  THESE PLAINTIFFS' EQUALITY OR PROTECTION BY THE LAW, OR THEIR

  EQUALITY OF PRIVILEGES AND IMMUNITIES UNDER THE LAW.  THERE IS

  NOT THE SLIGHTEST ALLEGATION THAT DEFENDANTS WERE CONSCIOUS OF OR

  TRYING TO INFLUENCE THE LAW, OR WERE ENDEAVORING TO OBSTRUCT OR

  INTERFERE WITH IT . . . . SUCH PRIVATE DISCRIMINATION IS NOT

INEQUALITY BEFORE THE LAW UNLESS THERE IS SOME MANIPULATION OF

  THE LAW OR ITS AGENCIES TO GIVE SANCTION OR SANCTUARY FOR DOING

  SO."  ID., AT 661. 

THE COURT WAS CAREFUL TO MAKE CLEAR THAT IT WAS DECIDING NO
CONSTITUTIONAL QUESTION, BUT SIMPLY CONSTRUING THE LANGAGE OF THE
STATUTE, OR MORE PRECISELY, DETERMINING THE APPLICABILITY OF THE
STATUTE TO THE FACTS ALLEGED IN THE 

     "WE SAY NOTHING OF THE POWER OF CONGRESS TO AUTHORIZE SUCH
CIVIL ACTIONS COMPLAINTS:  /2/

  AS RESPONDENTS HAVE COMMENCED OR OTHERWISE TO REDRESS SUCH
GRIEVANCES AS THEY ASSERT.  WE

  THINK THAT CONGRESS HAS NOT, IN THE NARROW CLASS OF CONSPIRACIES
DEFINED BY THIS STATUTE,

INCLUDED THE CONSPIRACY CHARGED HERE.  WE THEREFORE REACH NO
CONSTITUTIONAL QUESTIONS."  ID.,

  AT 662.  NONETHELESS, THE COURT MADE EQUALLY CLEAR THAT THE
CONSTRUCTION IT GAVE TO THE STATUTE WAS INFLUENCED BY THE
CONSTITUTIONAL PROBLEMS THAT IT THOUGHT WOULD HAVE OTHERWISE BEEN
ENGENDERED: 

     "IT IS APPARENT THAT, IF THIS COMPLAINT MEETS THE REQUIREMENTS

OF THIS ACT, IT RAISES CONSTITUTIONAL PROBLEMS OF THE FIRST

  MAGNITUDE THAT, IN THE LIGHT OF HISTORY, ARE NOT WITHOUT

  DIFFICULTY.  THESE WOULD INCLUDE ISSUES AS TO CONGRESSIONAL POWER

  UNDER AND APART FROM THE FOURTEENTH AMENDMENT, THE RESERVED POWER

  OF THE STATES, THE CONTENT OF RIGHTS DERIVED FROM NATIONAL AS

  DISTINGUISHED FROM STATE CITIZENSHIP, AND THE QUESTION OF

  SEPARABILITY OF THE ACT IN ITS APPLICATION TO THOSE TWO CLASSES

  OF RIGHTS."  ID., AT 659. 

MR. JUSTICE BURTON FILED A DISSENTING OPINION, JOINED BY MR. JUSTICE
BLACK AND MR. JUSTICE DOUGLAS.  THE DISSENTERS THOUGHT THAT "(THE
LANGUAGE OF THE STATUTE REFUTES THE SUGGESTION THAT ACTION UNDER COLOR
OF STATE LAW IS A NECESSARY INGREDIENT OF THE CAUSE OF ACTION WHICH IT
RECOGNIZES."  ID., AT 663.  FURTHER, THE DISSENTERS FOUND NO
CONSTITUTIONAL DIFFICULTY IN ACCORDING TO THE STATUTORY WORDS THEIR
APPARENT MEANING: 

 "CONGRESS CERTAINLY HAS THE POWER TO CREATE A FEDERAL CAUSE OF

  ACTION IN FAVOR OF PERSONS INJURED BY PRIVATE INDIVIDUALS THROUGH

  THE ABRIDGMENT OF FEDERALLY CREATED CONSTITUTIONAL RIGHTS.  IT

  SEEMS TO ME THAT CONGRESS HAS DONE JUST THIS IN (SEC. 1985(3)). 

  THIS IS NOT INCONSISTENT WITH THE PRINCIPLE UNDERLYING THE

  FOURTEENTH AMENDMENT.  THAT AMENDMENT PROHIBITS THE RESPECTIVE

  STATES FROM MAKING LAWS ABRIDGING THE PRIVILEGES OR IMMUNITIES OF

  CITIZENS OF THE UNITED STATES OR DENYING TO ANY PERSON WITHIN THE

 JURISDICTION OF A STATE THE EQUAL PROTECTION OF THE LAWS.  CASES

  HOLDING THAT THOSE CLAUSES ARE DIRECTED ONLY AT STATE ACTION ARE

  NOT AUTHORITY FOR THE CONTENTION THAT CONGRESS MAY NOT PASS LAWS

  SUPPORTING RIGHTS WHICH EXIST APART FROM THE FOURTEENTH

  AMENDMENT."  ID., AT 664. 

     II 

WHETHER OR NOT COLLINS V. HARDYMAN WAS CORRECTLY DECIDED ON ITS OWN
FACTS IS A QUESTION WITH WHICH WE NEED NOT HERE BE CONCERNED.  BUT IS
IS CLEAR, IN THE LIGHT OF THE EVOLUTION OF DECISIONAL LAW IN THE YEARS
THAT HAVE PASSED SINCE THAT CASE WAS DECIDED, THAT MANY OF THE
CONSTITUTIONAL PROBLEMS THERE PERCEIVED SIMPLY DO NOT EXIST.  LITTLE
REASON REMAINS, THEREFORE, NOT TO ACCORD TO THE WORDS OF THE STATUTE
THEIR APPARENT MEANING.  THAT MEANING IS CONFIRMED BY JUDICIAL
CONSTRUCTION OF RELATED LAWS, BY THE STRUCTURAL SETTING OF SEC. 1985(3)
ITSELF, AND BY ITS LEGISLATIVE HISTORY.  AND A FAIR READING OF THE
ALLEGATIONS OF THE COMPLAINT IN THIS CASE CLEARLY BRINGS THEM WITHIN
THIS MEANING OF THE STATUTORY LANGUAGE.  AS SO CONSTRUED, AND AS
APPLIED TO THIS COMPLAINT, WE HAVE NO DOUBT THAT THE STATUTE WAS WITHIN
THE CONSTITUTIONAL POWER OF CONGRESS TO ENACT. 

        III 

WE TURN, THEN, TO AN EXAMINATION OF THE MEANING OF SEC. 1985(3).  ON
THEIR FACE, THE WORDS OF THE STATUTE FULLY ENCOMPASS THE CONDUCT OF
PRIVATE PERSONS.  THE PROVISION SPEAKS SIMPLY OF "TWO OR MORE PERSONS
IN ANY STATE OR TERRITORY" WHO "CONSPIRE OR GO IN DISGUISE ON THE
HIGHWAY OR ON THE PREMISES OF ANOTHER."  GOING IN DISGUISE, IN
PARTICULAR, IS IN THIS CONTEXT AN ACTIVITY SO LITTLE ASSOCIATED WITH
OFFICIAL ACTION AND SO COMMONLY CONNECTED WITH PRIVATE MARAUDERS THAT
THIS CLAUSE COULD ALMOST NEVER BE APPLICABLE UNDER THE ARTIFICIALLY
RESTRICTIVE CONSTRUCTION OF COLLINS.  AND SINCE THE "GOING IN DISGUISE"
ASPECT MUST INCLUDE PRIVATE ACTION, IT IS HARD TO SEE HOW THE
CONSPIRACY ASPECT, JOINED BY A DISJUNCTIVE, COULD BE READ TO REQUIRE
THE INVOLVEMENT OF STATE OFFICERS. 

THE PROVISION CONTINUES, SPECIFYING THE MOTIVATION REQUIRED "FOR THE
PURPOSE OF DEPRIVING, EITHER DIRECTLY OR INDIRECTLY, ANY PERSON OR
CLASS OF PERSONS OF THE EQUAL PROTECTION OF THE LAWS, OR OF EQUAL
PRIVILEGES AND IMMUNITIES UNDER THE LAWS."  THIS LANGUAGE IS, OF
COURSE, SIMILAR TO THAT OF SEC. 1 OF THE FOURTEENTH AMENDMENT, WHICH IN
TERMS SPEAKS ONLY TO THE STATES, /3/  AND JUDICIAL THINKING ABOUT WHAT
CAN CONSTITUTE AN EQUAL PROTECTION DEPRIVATION HAS, BECAUSE OF THE
AMENDMENT'S WORDING, FOCUSED ALMOST ENTIRELY UPON IDENTIFYING THE
REQUISITE "STATE ACTION" AND DEFINING GHE OFFENDING FORMS OF STATE LAW
AND OFFICIAL CONDUCT.  A CENTURY OF FOURTEENTH AMENDMENT ADJUDICATION
HAS, IN OTHER WORDS, MADE IT UNDERSTANDABLY DIFFICULT TO CONCEIVE OF
WHAT MIGHT CONSTITUTE A DEPRIVATION OF THE EQUAL PROTECTION OF THE LAWS
BY PRIVATE PERSONS.  YET THERE IS NOTHING INHERENT IN THE PHRASE THAT
REQUIRES THE ACTION WORKING THE DEPRIVATION TO COME FROM THE STATE. 
SE, E.G., UNITED STATES V. HARRIS, 106 U.S. 629, 643.  INDEED, THE
FAILURE TO MENTION ANY SUCH REQUISITE CAN BE VIEWED AS AN IMPORTANT
INDICATION OF CONGRESSIONAL INTENT TO SPEAK IN SEC. 1985(3) OF ALL
DEPRIVATIONS OF "EQUAL PROTECTION OF THE LAWS" AND "EQUAL PRIVILEGES
AND IMMUNITIES UNDER THE LAWS," WHATEVER THEIR SOURCE. 

THE APPROACH OF THIS COURT TO OTHER RECONSTRUCTION CIVIL RIGHTS
STATUTES IN THE YEARS SINCE COLLINS HAS BEEN TO "ACCORD (THEM) A SWEEP
AS BROAD AS (THEIR) LANGUAGE."  UNITED STATES V. PRICE, 383 U.S. 787,
801; JONES V. ALFRED H. MAYER CO., 392 U.S. 409, 437.  MOREOVER, VERY
SIMILAR LANGUAGE IN CLOSELY RELATED STATUTES HAS EARLY AND LATE
RECEIVED AN INTERPRETATION QUITE INCONSISTENT WITH THAT GIVEN TO SEC.
1985(3) IN COLLINS.  IN CONSTRUING THE EXACT CRIMINAL COUNTERPART OF
SEC. 1985(3), THE COURT IN UNITED STATES V. HARRIS, SUPRA, OBSERVED
THAT THE STATUTE WAS "NOT LIMITED TO TAKE EFFECT ONLY IN CASE (OF STATE
ACTION)," ID., AT 639, BUT "WAS FRAMED TO PROTECT FROM INVASION BY
PRIVATE PERSONS, THE EQUAL PRIVILEGES AND IMMUNITIES UNDER THE LAWS, OF
ALL PERSONS AND CLASSES OF PERSONS," ID., AT 637.  IN UNITED STATES V.
WILLIAMS, 341 U.S. 70, THE COURT CONSIDERED THE CLOSEST REMAINING
CRIMINAL ANALOGUE TO SEC. 1985(3), 18 U.S.C. 241.  /4/  MR. JUSTICE
FRANKFURTER'S PLURALITY OPINION, WITHOUT CONTRAVENTION FROM THE
CONCURRENCE OR DISSENT, CONCLUDED THAT "IF LANGUAGE IS TO CARRY ANY
MEANING AT ALL IT MUST BE CLEAR THAT THE PRINCIPAL PURPOSE OF (SEC.
241), UNLIKE (18 U.S.C. 242), WAS TO REACH PRIVATE ACTION RATHER THAN
OFFICERS OF A STATE ACTING UNDER ITS AUTHORITY.  MEN WHO 'GO IN
DISGUISE UPON THE PUBLIC HIGHWAY, OR UPON THE PREMISES OF ANOTHER' ARE
NOT LIKELY TO BE ACTING IN OFFICIAL CAPACITIES."  341 U.S.,AT 76. 
"NOTHING IN (THE) TERMS (OF SEC. 241) INDICATES THAT COLOR OF STATE LAW
WAS TO BE RELEVANT TO PROSECUTION UNDER IT."  ID., AT 78 (FOOTNOTE
OMITTED). 

A LIKE CONSTRUCTION OF SEC. 1985(3) IS REINFORCED WHEN EXAMINATION
IS BROADENED TO TAKE IN ITS COMPANION STATUTORY PROVISIONS.  THERE
APPEAR TO BE THREE POSSIBLE FORMS FOR A STATE ACTION LIMITATION ON SEC.
1985(3)-- THAT THERE MUST BE ACTION UNDER COLOR OF STATE LAW, THAT
THERE MUST BE INTERFERENCE WITH OR INFLUENCE UPON STATE AUTHORITIES, OR
THAT THERE MUST BE A PRIVATE CONSPIRACY SO MASSIVE AND EFFECTIVE THAT
IT SUPPLANTS THOSE AUTHORITIES AND THUS SATISFIES THE STATE ACTION
REQUIREMENT.  /5/  THE CONGRESS THAT PASSED THE CIVIL RIGHTS ACT OF
1871, 17 STAT. 13, SEC. 2 OF WHICH IS THE PARENT OF SEC. 1985(3), DEALT
WITH EACH OF THESE THREE SITUATIONS IN EXPLICIT TERMS IN OTHER PARTS OF
THE SAME ACT.  AN ELEMENT OF THE CAUSE OF ACTION ESTABLISHED BY THE
FIRST SECTION, NOW 42 U.S.C. 1983, IS THAT THE DEPRIVATION COMPLAINED
OF MUST HAVE BEEN INFLICTED UNDER COLOR OF STATE LAW.  /6/  TO READ ANY
SUCH REQUIREMENT INTO SEC 1985(3) WOULD THUS DEPRIVE THAT SECTION OF
ALL INDEPENDENT EFFECT.  AS FOR INTERFERENCE WITH STATE OFFICIALS, SEC.
1985(3) ITSELF CONTAINS ANOTHER CLAUSE DEALING EXPLICITLY WITH THAT
SITUATION.  /7/  AND SEC. 3 OF THE 1871 ACT PROVIDED FOR MILITARY
ACTION AT THE COMMAND OF THE PRESIDENT SHOULD MASSIVE PRIVATE
LAWLESSNESS RENDER STATE AUTHORITIES POWERLESS TO PROTECT THE FEDERAL
RIGHTS OF CLASSES OF CITIZENS, SUCH A SITUATION BEING DEFINED BY THE
ACT AS CONSTITUTING A STATE DENIAL OF EQUAL PROTECTION.  17 STAT. 14. 
GIVEN THE EXISTENCE OF THESE THREE PROVISIONS, IT IS ALMOST IMPOSSIBLE
TO BELIEVE THAT CONGRESS INTENDED, IN THE DISSIMILAR LANGUAGE OF THE
PORTION OF SEC, 1985(3) NOW BEFORE US, SIMPLY TO DUPLICATE THE COVERAGE
OF ONE OR MORE OF THEM. 

THE FINAL AREA OF INQUIRY INTO THE MEANING OF SEC. 1985(3) LIES IN
ITS LEGISLATIVE HISTORY.  AS ORIGINALLY INTRODUCED IN THE 42D CONGRESS,
THE SECTION WAS SOLELY A CRIMINAL PROVISION OUTLAWING CERTAIN
CONSPIRATORIAL ACTS DONE WITH INTENT "TO DO ANY ACT IN VIOLATION OF THE
RIGHTS, PRIVILEGES, OR IMMUNITIES OF ANOTHER PERSON . . . . "  CONG.
GLOBE, 42D CONG., 1ST SESS., APP. 68 (1871).  INTRODUCING THE BILL, THE
HOUSE SPONSOR, REPRESENTATIVE SHELLABARGER, STRESSED THAT "THE UNITED
STATES ALWAYS HAS ASSUMED TO ENFORCE, AS AGAINST THE STATES, AND ALSO
PERSONS, EVERY ONE OF THE PROVISIONS OF THE CONSTITUTION."  ID., AT
APP. 69.  THE ENORMOUS SWEEP OF THE ORIGINAL LANGUAGE LED TO PRESSURES
FOR AMENDMENT, IN THE COURSE OF WHICH THE PRESENT CIVIL REMEDY WAS
ADDED.  THE EXPLANATIONS OF THE ADDED LANGUAGE CENTERED ENTIRELY ON THE
ANIMUS OR MOTIVATION THAT WOULD BE REQUIRED.  AND THERE WAS NO
SUGGESTION WHATEVER THAT LIABILITY WOULD NOT BE IMPOSED FOR PURELY
PRIVATE CONSPIRACIES.  REPRESENTATIVE WILLARD, DRAFTSMAN OF THE
LIMITING AMENDMENT, SAID THAT HIS VERSION "PROVIDED) THAT THE ESSENCE
OF THE CRIME SHOULD CONSIST IN THE INTENT TO DEPRIVE A PERSON OF THE
EQUAL PROTECTION OF THE LAWS AND OF EQUAL PRIVILEGES AND IMMUNITIES
UNDER THE LAWS; IN OTHER WORDS, THAT THE CONSTITUTION SECURED, AND WAS
ONLY INTENDED TO SECURE, EQUALITY OF RIGHTS AND IMMUNITIES, AND THAT WE
COULD ONLY PUNISH BY UNITED STATES LAWS A DENIAL OF THAT EQUALITY." 
ID., AT APP. 188.  REPRESENTATIVE SHELLABARGER'S EXPLANATION OF THE
AMENDMENT WAS VERY SIMILAR:  "THE OBJECT OF THE AMENDMENT IS . . . TO
CONFINE THE AUTHORITY OF THIS LAW TO THE PREVENTION OF DEPRIVATIONS
WHICH SHALL ATTACK THE EQUALITY OF RIGHTS OF AMERICAN CITIZENS; THAT
ANY VIOLATION OF THE RIGHT, THE ANIMUS AND EFFECT OF WHICH IS TO STRIKE
DOWN THE CITIZEN, TO THE END THAT HE MAY NOT ENJOY EQUALITY OF RIGHTS
AS CONTRASTED WITH HIS AND OTHER CITIZENS' RIGHTS, SHALL BE WITHIN THE
SCOPE OF THE REMEDIES OF THIS SECTION."  ID., AT 478.  /8/ 

OTHER SUPPORTERS OF THE BILL WERE EVEN MORE EXPLICIT IN THEIR
INSISTENCE UPON COVERAGE OF PRIVATE ACTION.  GLOVE, 42D CONG., 1ST
SESS., APP. 68 (1871).  SHORTLY BEFORE THE AMENDMENT WAS INTRODUCED,
REPRESENTATIVE SHANKS URGED, "I DO NOT WANT TO SEE (THIS MEASURE) SO
AMENDED THAT THERE SHALL BE TAKEN OUT OF IT THE FRANK ASSERTION OF THE
POWER OF THE NATIONAL GOVERNMENT TO PROTECT LIFE, LIBERTY, AND
PROPERTY, IRRESPECTIVE OF THE ACT OF THE STATE."  ID., AT APP. 141.  AT
ABOUT THE SAME TIME, REPRESENTATIVE COBURN ASKED:  "SHALL WE DEAL WITH
INDIVIDUALS, OR WITH THE STATE AS A STATE?  IF WE CAN DEAL WITH
INDIVIDUALS, THAT IS A LESS RADICAL COURSE, AND WORKS LESS INTERFERENCE
WITH LOCAL GOVERNMENTS.  . . . IT WOULD SEEM MORE ACCORDANT WITH REASON
THAT THE EASIER, MORE DIRECT, AND MORE CERTAIN METHOD OF DEALING WITH
INDIVIDUAL CRIMINALS WAS PREFERABLE, AND THAT THE MORE THOROUGH METHOD
OF SUPERSEDING STATE AUTHORITY SHOULD ONLY BE RESORTED TO WHEN THE
DEPRIVATION OF RIGHTS AND THE CONDITION OF OUTLAWRY WAS SO GENERAL AS
TO PREVAIL IN ALL QUARTERS IN DEFIANCE OF OR BY PERMISSION OF THE LOCAL
GOVERNMENT."  ID., AT 459.  AFTER THE AMENDMENT HAD BEEN PROPOSED IN
THE HOUSE, SENATOR POOL INSISTED IN SUPPORT OF THE BILL DURING SENATE
DEBATE THAT "CONGRESS MUST DEAL WITH INDIVIDUALS, NOT STATES.  IT MUST
PUNISH THE OFFENDER AGAINST THE RIGHTS OF THE CITIZEN . . . ."  ID., AT
608. 

IT IS THUS EVIDENT THAT ALL INDICATORS-- TEXT, COMPANION PROVISIONS,
AND LEGISLATIVE HISTORY-- POINT UNWAVERINGLY TO SEC. 1985(3)'S COVERAGE
OF PRIVATE CONSPIRACIES.  THAT THE STATUTE WAS MEANT TO REACH PRIVATE
ACTION DOES NOT, HOWEVER, MEAN THAT IT WAS INTENDED TO APPLY TO ALL
TORTIOUS, CONSPIRATORIAL INTERFERENCES WITH THE RIGHTS OF OTHERS.  FOR,
THOUGH THE SUPPORTERS OF THE LEGISLATION INSISTED ON COVERAGE OF
PRIVATE CONSPIRACIES, THEY WERE EQUALLY EMPHATIC THAT THEY DID NOT
BELIEVE, IN THE WORDS OF REPRESENTATIVE COOK, "THAT CONGRESS HAS A
RIGHT TO PUNISH AN ASSAULT AND BATTERY WHEN COMMITTED BY TWO OR MORE
PERSONS WITHIN A STATE."  ID., AT 485.  THE CONSTITUTIONAL SHOALS THAT
WOULD LIE IN THE PATH OF INTERPRETING SEC. 1985(3) AS A GENERAL FEDERAL
TORT LAW CAN BE AVOIDED BY GIVING FULL EFFECT TO THE CONGRESSIONAL
PURPOSE-- BY REQUIRING, AS AN ELEMENT OF THE CAUSE OF ACTION, THE KIND
OF INVIDIOUSLY DISCRIMINATORY MOTIVATION STRESSED BY THE SPONSORS OF
THE LIMITING AMENDMENT.  SEE THE REMARKS OF REPRESENTATIVES WILLARD AND
SHELLABARGER, QUOTED SUPRA, AT 100.  THE LANGUAGE REQUIRING INTENT TO
DEPRIVE OF EQUAL PROTECTION, OR EQUAL PRIVILEGES AND IMMUNITIES, MEANS
THAT THERE MUST BE SOME RACIAL, OR PERHAPS OTHERWISE CLASS-BASED,
INVIDIOUSLY DISCRIMINATORY ANIMUS BEHIND THE CONSPIRATORS' ACTION.  /9/
THE CONSPIRACY, IN OTHER WORDS, MUST AIM AT A DEPRIVATION OF THE EQUAL
ENJOYMENT OF RIGHTS SECURED BY THE LAW TO ALL.  /10/

        IV 

WE RETURN TO THE PETITIONERS' COMPLAINT TO DETERMINE WHETHER IT
STATES A CAUSE OF ACTION UNDER SEC. 1985(3) AS SO CONSTRUED.  TO COME
WITHIN THE LEGISLATION A COMPLAINT MUST ALLEGE THAT THE DEFENDANTS DID
(1) "CONSPIRE OR GO IN DISGUISE ON THE HIGHWAY OR ON THE PREMISES OF
ANOTHER" (2) "FOR THE PURPOSE OF DEPRIVING, EITHER DIRECTLY OR
INDIRECTLY, ANY PERSON OF CLASS OF PERSONS OF THE EQUAL PROTECTION OF
THE LAWS, OR OF EQUAL PRIVILEGES AND IMMUNITIES UNDER THE LAWS."  IT
MUST THEN ASSERT THAT ONE OR MORE OF THE CONSPIRATORS (3) DID, OR
CAUSED TO BE DONE, "ANY ACT IN FURTHERANCE OF THE OBJECT OF (THE)
CONSPIRACY," WHEREBY ANOTHER WAS (4A) "INJURED IN HIS PERSON OR
PROPERTY" OR (4B) "DEPRIVED OF HAVING AND EXERCISING ANY RIGHT OR
PRIVILEGE OF A CITIZEN OF THE UNITED STATES." 

THE COMPLAINT FULLY ALLEGES, WITH PARTICULARS, THAT THE RESPONDENTS
CONSPIRED TO CARRY OUT THE ASSAULT.  IT FURTHER ASSERTS THAT "(THEIR
PURPOSE WAS TO PREVENT (THE) PLAINTIFFS AND OTHER NEGRO-AMERICANS,
THROUGH . . . FORCE, VIOLENCE AND INTIMIDATION, FROM SEEKING THE EQUAL
PROTECTION OF THE LAWS AND FROM ENJOYING THE EQUAL RIGHTS, PRIVILEGES
AND IMMUNITIES OF CITIZENS UNDER THE LAWS OF THE UNITED STATES AND THE
STATE OF MISSISSIPPI," INCLUDING A LONG LIST OF ENUMERATED RIGHTS SUCH
AS FREE SPEECH, ASSEMBLY, ASSOCIATION, AND MOVEMENT.  THE COMPLAINT
FURTHER ALLEGES THAT THE RESPONDENTS WERE "ACTING UNDER A MISTAKEN
BELIEF THAT R. G. GRADY WAS A WORKER FOR CIVIL RIGHTS FOR NEGROES." 
THESE ALLEGATIONS CLEARLY SUPPORT THE REQUISITE ANIMUS TO DEPRIVE THE
PETITIONERS OF THE EQUAL ENJOYMENT OF LEGAL RIGHTS BECAUSE OF THEIR
RACE.  THE CLAIMS OF DETENTION, THREATS, AND BATTERY AMPLY SATISFY THE
REQUIREMENT OF ACTS DONE IN FURTHERANCE OF THE CONSPIRACY.  FINALLY,
THE PETITIONERS-- WHETHER OR NOT THE NONPARTY GRADY WAS THE MAIN OR
ONLY TARGET OF THE CONSPIRACY-- ALLEGE PERSONAL INJURY RESULTING FROM
THOSE ACTS.  THE COMPLAINT, THEN, STATES A CAUSE OF ACTION UNDER SEC.
1985(3).  INDEED, THE CONDUCT HERE ALLEGED LIES SO CLOSE TO THE CORE OF
THE COVERAGE INTENDED BY CONGRESS THAT IT IS HARD TO CONCEIVE OF WHOLLY
PRIVATE CONDUCT THAT WOULD COME WITHIN THE STATUTE IF THIS DOES NOT. 
WE MUST, ACCORDINGLY, CONSIDER WHETHER CONGRESS HAD CONSTITUTIONAL
POWER TO ENACT A STATUTE THAT IMPOSES LIABILITY UNDER FEDERAL LAW FOR
THE CONDUCT ALLEGED IN THIS COMPLAINT. 

        V 

THE CONSTITUTIONALITY OF SEC. 1985(3) MIGHT ONCE HAVE APPEARED TO
HAVE BEEN SETTLED ADVERSELY BY UNITED STATES V. HARRIS, 106 U.S. 629,
AND BALDWIN V. FRANKS, 120 U.S. 678, WHICH HELD UNCONSTITUTIONAL ITS
CRIMINAL COUNTERPART, THEN SEC. 5519 OF THE REVISED STATUTES.  /11/
THE COURT IN THOSE CASES, HOWEVER, FOLLOWED A SEVERABILITY RULE THAT
REQUIRED INVALIDATION OF AN ENTIRE STATUTE IF ANY PART OF IT WAS
UNCONSTITUTIONALLY OVERBROAD, UNLESS ITS DIFFERENT PARTS COULD BE READ
AS WHOLLY INDEPENDENT PROVISIONS.  E.G., BALDWIN V. FRANKS, SUPRA, AT
685.  THIS COURT HAS LONG SINCE FIRMLY REJECTED THAT RULE IN SUCH CASES
AS UNITED STATES V. RAINES, 362 U.S. 17, 20-24.  CONSEQUENTLY, WE NEED
NOT FIND THE LANGUAGE OF SEC. 1985(3) NOW BEFORE US CONSTITUTIONAL IN
ALL ITS POSSIBLE APPLICATIONS IN ORDER TO UPHOLD ITS FACIAL
CONSTITUTIONALITY AND ITS APPLICATION TO THE COMPLAINT IN THIS CASE. 

THAT SEC. 1985(3) REACHES PRIVATE CONSPIRACIES TO DEPRIVE OTHERS OF
LEGAL RIGHTS CAN, OF ITSELF, CAUSE NO DOUBTS OF ITS CONSTITUTIONALITY. 
IT HAS LONG BEEN SETTLED THAT 18 U.S.C. 241, A CRIMINAL STATUTE OF FAR
BROADER PHRASING (SEE N. 4, SUPRA), REACHES WHOLLY PRIVATE CONSPIRACIES
AND IS CONSTITUTIONAL, E.G., IN RE QUARLES, 158 U.S. 532; LOGAN V.
UNITED STATES, 144 U.S. 263, 293-295; UNITED STATES V. WADDELL, 112
U.S. 76, 77-81; EX PARTE YARBROUGH, 110 U.S. 651.  SEE GENERALLY
TWINING V. NEW JERSEY, 211 U.S. 78, 97-98.  OUR INQUIRY, THEREFORE,
NEED GO ONLY TO IDENTIFYING A SOURCE OF CONGRESSIONAL POWER TO REACH
THE PRIVATE CONSPIRACY ALLEGED BY THE COMPLAINT IN THIS CASE. 

        A 

EVEN AS IT STRUCK DOWN REV. STAT. SEC. 5519 IN UNITED STATES V.
HARRIS, THE COURT INDICATED THAT PARTS OF ITS COVERAGE WOULD, IF
SEVERABLE, BE CONSTITUTIONAL UNDER THE THIRTEENTH AMENDMENT.  106
U.S.,AT 640-641.  AND SURELY THERE HAS NEVER BEEN ANY DOUBT OF THE
POWER OF CONGRESS TO IMPOSE LIABILITY ON PRIVATE PERSONS UNDER SEC. 2
OF THAT AMENDMENT, "FOR THE AMENDMENT IS NOT A MERE PROHIBITION OF
STATE LAWS ESTABLISHING OR UPHOLDING SLAVERY, BUT AN ABSOLUTE
DECLARATION THT SLAVERY OR INVOLUNTARY SERVITUDE SHALL NOT EXIST IN ANY
PART OF THE UNITED STATES."  CIVIL RIGHTS CASES, 109 U.S. 3, 20.  SEE
ALSO ID., AT 23; CLYATT V. UNITED STATES, 197 U.S. 207, 216, 218; JONES
V. ALFRED H. MAYER CO., 392 U.S.,AT 437-440.  NOT ONLY MAY CONGRESS
IMPOSE SUCH LIABILITY, BUT THE VARIETIES OF PRIVATE CONDUCT THAT IT MAY
MAKE CRIMINALLY PUNISHABLE OR CIVILLY REMEDIABLE EXTEND FAR BEYOND THE
ACTUAL IMPOSITION OF SLAVERY OR INVOLUNTARY SERVITUDE.  BY THE
THIRTEENTH AMENDMENT, WE COMMITTED OURSELVES AS A NATION TO THE
PROPOSITION THAT THE FORMER SLAVES AND THEIR DESCENDANTS SHOULD BE
FOREVER FREE.  TO KEEP THAT PROMISE, "CONGRESS HAS THE POWER UNDER THE
THIRTEENTH AMENDMENT RATIONALLY TO DETERMINE WHAT ARE THE BADGES AND
THE INCIDENTS OF SLAVERY, AND THE AUTHORITY TO TRANSLATE THAT
DETERMINATION INTO EFFECTIVE LEGISLATION."  JONES V. ALFRED H. MAYER
CO., SUPRA, AT 440.  WE CAN ONLY CONCLUDE THAT CONGRESS WAS WHOLLY
WITHIN ITS POWERS UNDER SEC. 2 OF THE THIRTEENTH AMENDMENT IN CREATING
A STATUTORY CAUSE OF ACTION FOR NEGRO CITIZENS WHO HAVE BEEN THE
VICTIMS OF CONSPIRATORIAL, RACIALLY DISCRIMINATORY PRIVATE ACTION AIMED
AT DEPRIVING THEM OF THE BASIC RIGHTS THAT THE LAW SECURES TO ALL FREE
MEN. 

        B 

OUR CASES HAVE FIRMLY ESTABLISHED THAT THE RIGHT OF INTERSTATE
TRAVEL IS CONSTITUTIONALLY PROTECTED, DOES NOT NECESSARILY REST ON THE
FOURTEENTH AMENDMENT, AND IS ASSERTABLE AGAINST PRIVATE AS WELL AS
GOVERNMENTAL INTERFERENCE.  SHAPIRO V. THOMPSON, 394 U.S. 618, 629-631;
ID., AT 642-644 (CONCURRING OPINION); UNITED STATES V. GUEST, 383 U.S.
745, 757-760 AND N. 17; TWINING V. NEW JERSEY, 211 U.S. 78, 97;
SLAUGHTER-HOUSE CASES, 16 WALL.  36, 79-80; CRANDALL V. NEVADA, 6
WALL.  35, 44, 48-49; PASSENGER CASES, 7 HOW.  283, 492 (TANEY, C.J.,
DISSENTING).  THE "RIGHT TO PASS FREELY FROM STATE TO STATE" HAS BEEN
EXPLICITLY RECOGNIZED AS "AMONG THE RIGHTS AND PRIVILEGES OF NATIONAL
CITIZENSHIP."  TWINING V. NEW JERSEY, SUPRA, AT 97.  THAT RIGHT, LIKE
OTHER RIGHTS OF NATIONAL CITIZENSHIP, IS WITHIN THE POWER OF CONGRESS
TO PROTECT BY APPROPRIATE LEGISLATION.  E.G., UNITED STATES V. GUEST,
SUPRA, AT 759; UNITED STATES V. CLASSIC, 313 U.S. 299, 314-315; EX
PARTE YARBROUGH, 110 U.S. 651; OREGON V. MITCHELL, 400 U.S. 112, 285
287 (CONCURRING AND DISSENTING OPINION). 

THE COMPLAINT IN THIS CASE ALLEGED THAT THE PETITIONERS "WERE
TRAVELLING UPON THE FEDERAL, STATE AND LOCAL HIGHWAYS IN AND ABOUT"
DEKALB, KEMPER COUNTY, MISSISSIPPI.  KEMPER COUNTY IS ON THE
MISSISSIPPI-ALABAMA BORDER.  ONE OF THE RESULTS OF THE CONSPIRACY,
ACCORDING TO THE COMPLAINT, WAS TO PREVENT THE PETITIONERS AND OTHER
NEGROES FROM EXERCISING THEIR "RIGHTS TO TRAVEL THE PUBLIC HIGHWAYS
WITHOUT RESTRAINT IN THE SAME TERMS AS WHITE CITIZENS IN KEMPER COUNTY,
MISSISSIPPI."  FINALLY, THE CONSPIRACY WAS ALLEGED TO HAVE BEEN
INSPIRED BY THE RESPONDENTS' ERRONEOUS BELIEF THAT GRADY, A TENNESSEAN,
WAS A WORKER FOR NEGRO CIVIL RIGHTS.  UNDER THESE ALLEGATIONS IT IS
OPEN TO THE PETITIONERS TO PROVE AT TRIAL THAT THEY HAD BEEN ENGAGING
IN INTERSTATE TRAVEL OR INTENDED TO DO SO, THAT THEIR FEDERAL RIGHT TO
TRAVEL INTERSTATE WAS ONE OF THE RIGHTS MEANT TO BE DISCRIMINATORILY
IMPAIRED BY THE CONSPIRACY, THAT THE CONSPIRATORS INTENDED TO DRIVE OUT
OF-STATE CIVIL RIGHTS WORKERS FROM THE STATE, OR THAT THEY MEANT TO
DETER THE PETITIONERS FROM ASSOCIATING WITH SUCH PERSONS.  THIS AND
OTHER EVIDENCE COULD MAKE IT CLEAR THAT THE PETITIONERS HAD SUFFERED
FROM CONDUCT THAT CONGRESS MAY REACH UNDER ITS POWER TO PROTECT THE
RIGHT OF INTERSTATE TRAVEL. 

        C 

IN IDENTIFYING THESE TWO CONSTITUTIONAL SOURCES OF CONGRESSIONAL
POWER, WE DO NOT IMPLY THE ABSENCE OF ANY OTHER.  MORE SPECIFICALLY,
THE ALLEGATIONS OF THE COMPLAINT IN THIS CASE HAVE NOT REQUIRED
CONSIDERATION OF THE SCOPE OF THE POWER OF CONGRESS UNDER SEC. 5 OF THE
FOURTEENTH AMENDMENT.  /12/  BY THE SAME TOKEN, SINCE THE ALLEGATIONS
OF THE COMPLAINT BRING THIS CAUSE OF ACTION SO CLOSE TO THE
CONSTITUTIONALLY AUTHORIZED CORE OF THE STATUTE, THERE HAS BEEN NO
OCCASION HERE TO TRACE OUT ITS CONSTITUTIONALLY PERMISSIBLE PERIPHERY. 

THE JUDGMENT IS REVERSED, AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/ THE STATUTE WAS THEN 8 U.S.C. 47(3) (1946 ED.). 

/2/  "WE DO NOT SAY THAT NO CONSPIRACY BY PRIVATE INDIVIDUALS COULD
BE OF SUCH MAGNITUDE AND EFFECT AS TO WORK A DEPRIVATION OF EQUAL
PROTECTION OF THE LAWS, OR OF EQUAL PRIVILEGES AND IMMUNITIES UNDER
LAWS . . . . BUT HERE NOTHING OF THAT SORT APPEARS.  WE HAVE A CASE OF
A LAWLESS POLITICAL BRAWL, PRECIPITATED BY A HANDFUL OF WHITE CITIZENS
AGAINST OTHER WHITE CITIZENS."  341 U.S.,AT 662. 

/3/  "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." 

/4/  "IF TWO OR MORE PERSONS CONSPIRE TO INJURE, OPPRESS, THREATEN,
OR INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY
RIGHT OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE
UNITED STATES, OR BECAUSE OF HIS HAVING SO EXERCISED THE SAME; OR 

"IF TWO OR MORE PERSONS GO IN DISGUISE ON THE HIGHWAY, OR ON THE
PREMISES OF ANOTHER, WITH INTENT TO PREVENT OR HINDER HIS FREE EXERCISE
OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SO SECURED-- 

"THEY SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE
THAN TEN YEARS, OR BOTH." 

THE PENALTY SECTION WAS AMENDED IN 1968.  SEE 18 U.S.C. 241 (1964
ED., SUPP. V). 

/5/  THIS LAST WAS SUGGESTED IN COLLINS V. HARDYMAN.  SEE N. 2,
SUPRA. 

/6/  "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

/7/  "IF TWO OR MORE PERSONS IN ANY STATE OR TERRITORY CONSPIRE OR
GO IN DISGUISE ON THE HIGHWAY OR ON THE PREMISES OF ANOTHER.  . . FOR
THE PURPOSE OF PREVENTING OR HINDERING THE CONSTITUTED AUTHORITIES OF
ANY STATE OR TERRITORY FROM GIVING OR SECURING TO ALL PERSONS WITHIN
SUCH STATE OR TERRITORY THE EQUAL PROTECTION OF THE LAWS . . . ." 

/8/  THE CONSPIRACY AND DISGUISE LANGUAGE OF WHAT FINALLY BECAME
SEC. 1985(3) APPEARS TO HAVE BEEN BORROWED FROM THE PARENT OF 18 U.S.C.
241.  SEE CONG. GLOBE, 41ST CONG., 2D SESS., 3611-3613 (1870). 

/9/  WE NEED NOT DECIDE, GIVEN THE FACTS OF THIS CASE, WHETHER A
CONSPIRACY MOTIVATED BY INVIDIOUSLY DISCRIMINATORY INTENT OTHER THAN
RACIAL BIAS WOULD BE ACTIONABLE UNDER THE PORTION OF SEC. 1985(3)
BEFORE US.  CF. CONG. GLOBE, 42D CONG., 1ST SESS., 567 (1871) (REMARKS
OF SEN. EDMUNDS). 

/10/  THE MOTIVIATION REQUIREMENT INTRODUCED BY THE WORD "EQUAL"
INTO THE PORTION OF SEC, 1985(3) BEFORE US MUST NOT BE CONFUSED WITH
THE TEST OF "SPECIFIC INTENT TO DEPRIVE A PERSON OF A FEDERAL RIGHT
MADE DEFINITE BY DECISION OR OTHER RULE OF LAW" ARTICULATED BY THE
PLURALITY OPINION IN SCREWS V. UNITED STATES, 325 U.S. 91, 103, FOR
PROSECUTIONS UNDER 18 U.S.C. 242.  SECTION 1985(3), UNLIKE SEC. 242,
CONTAINS NO SPECIFIC REQUIREMENT OF "WILFULNESS."  CF. MONROE V. PAPE,
365 U.S. 167, 187.  THE MOTIVATION ASPECT OF SECTION 1985(3) FOCUSES
NOT ON SCIENTER IN RELATION TO DEPRIVATION OF RIGHTS BUT ON INVIDIOUSLY
DISCRIMINATORY ANIMUS. 

/11/  REV. STAT. SEC. 5519 WAS REPEALED IN 1909.  35 STAT. 1154. 

/12/  SEE KATZENBACH V. MORGAN, 384 U.S. 641; OREGON V. MITCHELL,
400 U.S. 112, 135 (OPINION OF DOUGLAS, J.), 229 (OPINION OF BRENNAN,
WHITE, AND MARSHALL, JJ.); UNITED STATES V. GUEST, 383 U.S. 745, 761
(CLARK, J., CONCURRING), 774 (BRENNAN, J., CONCURRING AND DISSENTING). 

MR. JUSTICE HARLAN, CONCURRING. 

I AGREE WITH THE COURT'S OPINION, EXCEPT THAT I FIND IT UNNECESSARY
TO RELY ON THE "RIGHT OF INTERSTATE TRAVEL" AS A PREMISE FOR JUSTIFYING
FEDERAL JURISDICTION UNDER SEC. 1985(3).  WITH THAT RESERVATION, I JOIN
THE OPINION AND JUDGMENT OF THE COURT. 

STEPHEN J. POLLAK ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE GARY J. GREENBERG AND JOHN A. BLEVEANS. 

W. D. MOORE, BY APPOINTMENT OF THE COURT, 400 U.S. 1006, ARGUED THE
CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WAS HELEN J. MCDADE. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD
AND LOUIS F. CLAIBORNE. 
..END :











ELY V. KLAHR, 403 U.S. 108 


       ELY V. KLAHR ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF ARIZONA

        NO. 548.  ARGUED MARCH 23, 1971-- DECIDED JUNE 7, 1971 


APPELLANT, IN THIS SUIT FILED IN 1964 CHALLENGING THE
CONSTITUTIONALITY OF ARIZONA'S STATE LEGISLATIVE DISTRICTING LAWS,
ATTACKED THE STATE'S THIRD ATTEMPT TO ENACT A VALID APPORTIONMENT
PLAN.  THE DISTRICT COURT FOUND THE PLAN CONSTITUTIONALLY DEFICIENT IN
SEVERAL RESPECTS BUT BECAUSE OF THE PROXIMITY OF THE 1970 ELECTIONS
(WHICH WOULD BE THE LAST HELD BEFORE THE 1970 CENSUS DATA BECAME
AVAILABLE FOR NEW PLANS) AND BECAUSE THE COURT CONCLUDED THAT THE MAIN
DIFFICULTY WAS THE STATE'S LARGE POPULATION INCREASE SINCE THE LAST
CENSUS, UPHELD THE LEGISLATURE'S PLAN AS THE LEAST UNSATISFACTORY
ALTERNATIVE (INCLUDING APPELLANT'S PLAN).  IN ITS ORDER THE COURT
"ASSUMED) THAT THE ARIZONA LEGISLATURE WILL BY NOVEMBER 1, 1971, ENACT
A VALID PLAN OF REAPPORTIONMENT," BUT "(UPON FAILURE OF THE LEGISLATURE
SO TO DO, ANY PARTY TO THIS ACTION MAY APPLY TO THE COURT FOR
APPROPRIATE RELIEF."  THOUGH THE 1970 GENERAL ELECTION WAS HELD ON THE
BASIS OF THE STATE LAW AS THUS UPHELD, APPELLANT CONTENDS THAT THE
DISTRICT COURT SHOULD NOW ADOPT AN APPORTIONMENT PLAN WHICH WOULD BE
DISPLACED ONLY IF THE LEGISLATURE ADOPTS A VALID PLAN.  HELD:  THE
DISTRICT COURT DID NOT ERR IN AFFORDING THE LEGISLATURE A REASONABLE
TIME TO ENACT A CONSTITUTIONALLY ADEQUATE APPORTIONMENT PLAN FOR THE
1972 ELECTIONS, ON THE BASIS OF THE 1970 CENSUS FIGURES WHICH WILL
PRESUMABLY BE AVILABLE, THAT COURT BEING IN THE BEST POSITION TO KNOW
IF THE NOVEMBER 1 DEADLINE WILL BE ADEQUATE TO FACILITATE ITS
CONSIDERATION OF THE LEGISLATIVE PLAN AND TO ENABLE IT TO PREPARE ITS
OWN PLAN IF THE OFFICIAL VERSION IS NOT CONSTITUTIONAL.  PP. 114-115. 

313 F.SUPP.  148, AFFIRMED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED. 
DOUGLAS, J., FILED A CONCURRING OPINION, IN WHICH BLACK, J., JOINED,
POST, P. 116.  HARLAN, J., FILED A STATEMENT CONCURRING IN THE RESULT,
POST, P. 123. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL IS THE LATEST STEP IN THE LONG AND FITFUL ATTEMPT TO
DEVISE A CONSTITUTIONALLY VALID REAPPORTIONMENT SCHEME FOR THE STATE OF
ARIZONA.  FOR THE REASONS GIVEN, WE AFFIRM THE JUDGMENT OF THE DISTRICT
COURT. 

IN APRIL 1964, SHORTLY BEFORE THIS COURT'S DECISION IN REYNOLDS V.
SIMS, 377 U.S. 533 (1964), AND IN ITS COMPANION CASES, SUIT WAS FILED
IN THE DISTRICT COURT FOR THE DISTRICT OF ARIZONA ATTACKING THE THEN
EXISTING STATE DISTRICTING LAWS AS UNCONSTITUTIONAL.  /1/  FOLLOWING
THOSE DECISIONS, THE THREE-JUDGE DISTRICT COURT ORDERED ALL PROCEEDINGS
STAYED "UNTIL THE EXPIRATION OF A PERIOD OF 30 DAYS NEXT FOLLOWING
ADJOURNMENT OF THE NEXT SESSION" OF THE ARIZONA LEGISLATURE.  (APP. 2
3, UNREPORTED.)  NEARLY A YEAR LATER,ON MAY 18, 1965, AFTER THE
LEGISLATURE HAD FAILED TO ACT, THE COURT AGAIN DEFERRED TRIAL PENDING A
SPECIAL LEGISLATIVE SESSION CALLED BY THE GOVERNOR TO DEAL WITH THE
NECESSITY OF REAPPORTIONMENT.  THE SPECIAL SESSION ENACTED SENATE BILL
11, WHICH AMONG OTHER THINGS PROVIDED ONE SENATOR FOR A COUNTY OF 7,700
AND ANOTHER FOR A COUNTY OF 55,000.  THE SESSION DID NOT UNDERTAKE TO
REAPPORTION THE HOUSE.  TRIAL WAS HAD IN NOVEMBER 1965 AND ON FEBRUARY
2, 1966, THE COURT ENJOINED ENFORCEMENT OF SENATE BILL 11, WHICH, IT
HELD, "BEARS EVIDENCE OF HAVING BEEN THROWN TOGETHER AS A RESULT OF
CONSIDERATIONS WHOLLY APART FROM THOSE LAID DOWN AS COMPULSORY BY THE
DECISIONS OF THE SUPREME COURT."  KLAHR V. GODDARD, 250 F.SUPP.  537,
541 (ARIZ. 1966).  THE PLAN, SAID THE COURT, WAS "SHOT THROUGH WITH
INVIDIOUS DISCRIMINATION."  ID., AT 546.  THE COURT ALSO HELD THAT THE
EXISTING HOUSE PLAN PRODUCED DISPARITIES OF NEARLY FOUR TO ONE, WHICH
WAS CLEARLY IMPERMISSIBLE UNDER OUR DECISIONS. 

NOTING THAT THE LEGISLATURE "HAS HAD AMPLE OPPORTUNITY" TO PRODUCE A
VALID REAPPORTIONAMENT PLAN, THE COURT FORMULATED ITS OWN PLAN AS A
"TEMPORARY AND PROVISIONAL REAPPORTIONMENT," DESIGNED TO GOVERN THE
IMPENDING PREPARATION FOR THE 1966 ELECTIONS.  THE PLAN WAS TO BE IN
EFFECT "FOR THE 1966 PRIMARY AND GENERAL ELECTIONS AND FOR SUCH FURTHER
ELECTIONS AS MAY FOLLOW UNTIL SUCH TIME AS THE LEGISLATURE ITSELF MAY
ADOPT DIFFERENT AND VALID PLANS FOR DISTRICTING AND REAPPORTIONMENT." 
/2/  ID., AT 543.  IT RETAINED JURISDICTION, AS IT HAS DONE SINCE. 

SOME 16 MONTHS LATER, IN JUNE 1967, THE ARIZONA LEGISLATURE ENACTED
"CHAPTER 1, 28TH LEGISLATURE," WHICH AGAIN ATTEMPTED REAPPORTIONMENT OF
THE STATE.  WITHIN THE MONTH, SUIT WAS FILED CHARGING THAT THIS ACT
ALSO WAS UNCONSTITUTIONAL, BUT THE COURT DEFERRED ACTION PENDING THE
OUTCOME OF A REFERENDUM /3/  SCHEDULED WITH THE NOVEMBER 1968 ELECTION
FOR THE LEGISLATURE AND CONGRESS.  IT ORDERED THOSE ELECTIONS TO BE
HELD IN ACCORDANCE WITH ITS OWN 1966 PLAN, AS SUPPLEMENTED.  KLAHR V.
WILLIAMS, 289 F.SUPP.  829 (ARIZ. 1967).  THE LEGISLATIVE PLAN WAS
APPROVED BY THE VOTERS IN THE REFERENDUM AND SIGNED INTO LAW BY THE
GOVERNOR ON JANUARY 17, 1969.  A HEARING ON THE PLAN WAS COMMENCED THE
SAME DAY.  THE COURT CONCLUDED ON JULY 22, 1969, THAT THE PLAN, WHICH
SET UP "ELECTION DISTRICTS" BASED ON POPULATION AND "LEGISLATIVE"
SUBDISTRICTS BASED ON VOTER REGISTRATION, WOULD ALLOW DEVIATIONS AMONG
THE LEGISLATIVE SUBDISTRICTS OF UP TO 40% FROM IDEAL UNTIL 1971, AND UP
TO 16% THEREAFTER.  THE COURT PROPERLY CONCLUDED THAT THIS PLAN WAS
INVALID UNDER KIRKPATRICK V. PREISLER, 394 U.S. 526 (1969), AND WELLS
V. ROCKEFELLER, 394 U.S. 542 (1969), SINCE THE LEGISLATURE HAD OPERATED
ON THE NOTION THAT A 16% DEVIATION WAS DE MINIMIS AND CONSEQUENTLY MADE
NO EFFORT TO ACHIEVE GREATER EQUALITY.  THE COURT ORDERED ITS 1966 PLAN
CONTINUED ONCE AGAIN "UNTIL THE LEGISLATURE SHALL HAVE ADOPTED
DIFFERENT, VALID, AND EFFECTIVE PLANS FOR REDISTRICTING AND
REAPPORTIONMENT . . . ."  (APP. 85, UNREPORTED.)  IT REFUSED TO ORDER
THE 1970 ELECTIONS TO BE HELD AT LARGE, SINCE THERE WAS "AMPLE TIME"
FOR THE LEGISLATURE "TO MEET ITS OBLIGATION" BEFORE THE MACHINERY FOR
CONDUCTING THE 1970 ELECTIONS WOULD BE ENGAGED. 

THE LEGISLATURE ATTEMPTED A THIRD TIME TO ENACT A VALID PLAN.  IT
PASSED "CHAPTER 1, HOUSE BILL NO. 1, 29TH LEGISLATURE," WHICH WAS
SIGNED INTO LAW BY THE GOVERNOR ON JANUARY 22, 1970, AND WHICH IS THE
PLAN INVOLVED IN THE DECISION FROM WHICH THIS APPEAL IS TAKEN. 
APPELLANT CHALLENGED THE BILL, ALLEGING THAT IT "SUBSTANTIALLY
DISENFRANCHISES, UNREASONABLY AND UNNECESSARILY, A LARGE NUMBER OF
CITIZENS OF THE STATE," APP. 106, AND "CREATES LEGISLATIVE DISTRICTS
THAT ARE GROSSLY UNEQUAL."  APP. 108.  APPELLANT AT THAT TIME SUBMITTED
HIS OWN PLAN FOR THE COURT'S CONSIDERATION.  APPELLANT'S PRIMARY
DISPUTE WITH THE NEW PLAN WAS THAT IT SUBSTANTIALLY MISCONCEIVED THE
CURRENT POPULATION DISTRIBUTION IN ARIZONA.  THE COURT AGREED THAT
APPELLANT'S PLAN, WHICH UTILIZED 1968 PROJECTIONS OF 1960 AND 1965
ARIZONA CENSUSES, COULD "VERY LIKELY (RESULT IN) A VALID
REAPPORTIONMENT PLAN" BUT IT DECLINED TO IMPLEMENT THE PLAN, SINCE IT
WAS BASED ON CENSUS TRACTS, RATHER THAN THE EXISTING PRECINCT
BOUNDARIES, AND "THE NECESSARY RECONSTRUCTION OF THE ELECTION PRECINCTS
COULD NOT BE ACCOMPLISHED IN TIME" TO SERVE THE 1970 ELECTION, WHOSE
PRELIMINARY PREPARATIONS WERE TO BEGIN IN A FEW WEEKS.  KLAHR V.
WILLIAMS, 313 F.SUPP.  148, 150 (ARIZ. 1970).  AT THE SAME TIME, THE
COURT OBSERVED THAT ITS 1966 PLAN HAD FALLEN BEHIND CONTEMPORARY
CONSTITUTIONAL REQUIREMENTS, DUE TO MORE RECENT VOTER REGISTRATION DATA
(WHICH INCREASED THE DEVIATION BETWEEN HIGH AND LOW DISTRICTS TO
47.09%) AND THE INTERVENING DECISIONS OF THIS COURT IN KIRKPATRICK AND
WELLS, SUPRA, AND BURNS V. RICHARDSON, 384 U.S. 73 (1966). 

TURNING TO THE LEGISLATURE'S PLAN, THE COURT FOUND IT WANTING IN
SEVERAL RESPECTS.  FIRST, THOUGH THE RESULT INDICATED POPULATION
DEVIATION BETWEEN HIGH AND LOW DISTRICTS OF ONLY 1.8%, THE POPULATION
FORMULA USED /4/  DID NOT "TRULY REPRESENT THE POPULATION WITHIN (THE)
PRECINCTS IN EITHER 1960 OR 1968," AND THUS "THE FIGURES PRODUCED . . .
ARE NOT TRULY POPULATION FIGURES."  313 F.SUPP.,AT 152.  SECOND, THE
COMPUTER THAT DEVISED THE PLAN HAD BEEN PROGRAMMED TO ASSURE THAT THE
PLAN WOULD NOT REQUIRE ANY INCUMBENT LEGISLATOR TO FACE ANY OTHER
INCUMBENT FOR RE-ELECTION.  THIRD, THE PROGRAMMING GAVE PRIORITY TO ONE
PARTY DISTRICTS OVER DISTRICTS DRAWN WITHOUT REGARD TO PARTY STRENGTH. 
THE COURT HELD THAT "INCUMBENCY FACTOR HAS NO PLACE IN ANY
REAPPORTIONMENT OR REDISTRICTING"  /5/  AND FOUND "INAPPOSITE" THE
"CONSIDERATION OF PARTY STRENGTH AS A FACTOR . . . ."  IBID. 

THE COURT WAS THUS FACED WITH A SITUATION WHERE BOTH ITS 1966 PLAN
AND THE LEGISLATURE'S LATEST ATTEMPT FELL SHORT OF THE CONSTITUTIONAL
STANDARD.  AT THAT TIME, HOWEVER, THE 1970 ELECTIONS WERE "CLOSE AT
HAND."  THE COURT CONCLUDED THAT ANOTHER LEGISLATIVE EFFORT WAS "OUT OF
THE QUESTION" DUE TO THE TIME AND FELT THAT IT COULD NOT ITSELF DEVISE
A NEW PLAN WITHOUT DELAYING PRIMARY ELECTIONS, "A COURSE WHICH WOULD
INVOLVE SERIOUS RISK OF CONFUSION AND CHAOS."  IBID.  IT CONSIDERED AT
LARGE ELECTIONS, BUT THE PROSPECT OF ELECTING 90 LEGISLATORS AT LARGE
WAS DEEMED SO REPUGNANT AS TO BE JUSTIFIED ONLY IF THE LEGISLATURE'S
ACTIONS HAD BEEN "DELIBERATE AND INEXCUSABLE"; THE COURT INSTEAD
BELIEVED THAT THE LARGE POPULATION INCREASE IN ARIZONA SINCE THE LAST
RELIABLE CENSUS IN 1960 WAS MORE TO BLAME.  CONCLUDING THAT THE 1970
ELECTIONS WOULD BE THE LAST TO BE HELD BEFORE THE 1970 CENSUS DATA
BECAME AVAILABLE FOR NEW PLANS, THE COURT CHOSE WHAT IT CONSIDERED THE
LESSER OF TWO EVILS AND ORDERED THE ELECTIONS TO BE CONDUCTED UNDER THE
LEGISLATURE'S PLAN.  IN ITS ORDER TO THIS EFFECT, THE COURT NOTED THAT
IT "ASSUMES THAT THE ARIZONA LEGISLATURE WILL BY NOVEMBER 1, 1971,
ENACT A VALID PLAN OF REAPPORTIONMENT," BUT THAT "(UPON FAILURE OF THE
LEGISLATURE SO TO DO, ANY PARTY TO THIS ACTION MAY APPLY TO THE COURT
FOR APPROPRIATE RELIEF."  ID., AT 154. 

THE STATE OFFICIALS DID NOT SEEK REVIEW OF THE DISTRICT COURT'S
JUDGMENT DECLARING CHAPTER 1 UNCONSTITUTIONAL.  APPELLANT, HOWEVER,
APPEALED TO THIS COURT.  HIS NOTICE OF APPEAL WAS FILED ON JUNE 18,
1970, HIS JURISDICTIONAL STATEMENT ON AUGUST 17, 1970.  THE LATTER
PRESENTED THE SINGLE QUESTION WHETHER IT WAS ERROR FOR THE UNITED
STATES DISTRICT COURT TO REFUSE TO ENJOIN THE ENFORCEMENT OF THE
ARIZONA LEGISLATURE'S MOST RECENT EFFORT TO REAPPORTION THE STATE. 
APPELLEES' MOTION TO DISMISS OR AFFIRM WAS FILED ON NOVEMBER 24.  WE
NOTED PROBABLE JURISDICTION ON DECEMBER 21, 400 U.S. 963. 

MEANWHILE, THE 1970 ELECTIONS WERE HELD IN ACCORDANCE WITH THE
DISTRICT COURT'S DECREE.  APPELLEES SUGGEST THAT THE ISSUE PRESENTED IS
MOOT AND APPELLANT CONCEDES "THE 1970 GENERAL ELECTION HAS ALREADY BEEN
HELD SO THAT THAT ASPECT OF THE WRONG CANNOT BE REMEDIED."  BRIEF 8. 
BUT APPELLANT NOW ARGUES THAT HOWEVER THAT MAY BE, THE DISTRICT COURT
SHOULD NOW PROCEED TO ADOPT A PLAN OF REAPPORTIONMENT WHICH WOULD BE
DISPLACED ONLY UPON THE ADOPTION OF A VALID PLAN BY THE LEGISLATURE. 
APPELLANT DOUBTS THAT POSTPONING JUDICIAL ACTION UNTIL AFTER NOVEMBER 1
WILL GIVE THE DISTRICT COURT SUFFICIENT TIME, PRIOR TO JUNE 1972, WHEN
THE ELECTION PROCESS MUST BEGIN IN ARIZONA, TO CONSIDER THE LEGISLATIVE
PLAN AND TO PREPARE ITS OWN PLAN IF THE LEGISLATIVE EFFORT DOES NOT
COMPLY WITH THE CONSTITUTION.  THE FEARED RESULT IS THAT ANOTHER
ELECTION UNDER AN UNCONSTITUTIONAL PLAN WOULD BE HELD IN ARIZONA. 

REAPPORTIONMENT HISTORY IN THE STATE LENDS OSME SUBSTANCE TO THESE
FEARS, BUT AS WE HAVE OFTEN NOTED, DISTRICTING AND APPORTIONMENT ARE
LEGISLATIVE TASKS IN THE FIRST INSTANCE, /6/  AND THE COURT DID NOT ERR
IN GIVING THE LEGISLATURE A REASONABLE TIME TO ACT BASED ON THE 1970
CENSUS FIGURES WHICH THE COURT THOUGHT WOULD BE AVAILABLE IN THE SUMMER
OF 1971.  WE AGREE WITH APPELLANT THAT THE DISTRICT COURT SHOULD MAKE
VERY SURE THAT THE 1972 ELECTIONS ARE HELD UNDER A CONSTITUTIONALLY
ADEQUATE APPORTIONMENT PLAN.  BUT THE DISTRICT COURT KNOWS BETTER THAN
WE WHETHER THE NOVEMBER 1 DEADLINE WILL AFFORD IT AMPLE OPPORTUNITY TO
ASSESS THE LEGALITY OF A NEW APPORTIONMENT STATUTE IF ONE IS
FORTHCOMING AND TO PREPARE ITS OWN PLAN BY JUNE 1, 1972, IF THE
OFFICIAL VERSION PROVES INSUFFICIENT.  THE 1970 CENSUS FIGURES, IF NOT
NOW AVAILABLE, WILL BE FORTHCOMING SOON; AND APPELLANT, IF HE IS SO
INCLINED, CAN BEGIN TO ASSEMBLE THE NECESSARY INFORMATION AND WITNESSES
AND HIMSELF PREPARE AND HAVE READY FOR SUBMISSION WHAT HE DEEMS TO BE
AN ADEQUATE APPORTIONMENT PLAN.  SURELY, HAD A SATISFACTORY SUBSTITUTE
FOR CHAPTER 1, HELD UNCONSTITUTIONAL BY THE DISTRICT COURT, BEEN
PREPARED AND READY THE COURT WOULD HAVE ORDERED THE 1970 ELECTIONS HELD
UNDER THAT PLAN RATHER THAN THE INVALID LEGISLATIVE SCHEME.  AND SURELY
IF APPELLANT HAS READY FOR COURT USE ON NOVEMBER 1, 1971, A SUITABLE
ALTERNATIVE FOR AN UNACCEPTABLE LEGISLATIVE EFFORT, OR AT LEAST MAKES
SURE THAT THE ESSENTIAL INFORMATION IS ON HAND, THERE IS NO JUSTIFIABLE
GROUND FOR THINKING THE DISTRICT COURT COULD NOT, PRIOR TO JUNE 1,
1972, COMPLETE ITS HEARINGS AND CONSIDERATION OF A NEW APPORTIONMENT
STATUTE AND, IF THAT IS REJECTED, ADOPT A PLAN OF ITS OWN FOR USE IN
THE 1972 ELECTIONS.  NOR DO WE READ THE DISTRICT COURT DECREE AS
FORBIDDING APPELLANT FROM PETITIONING FOR REOPENING OF THE CASE PRIOR
TO NOVEMBER 1, 1971, AND PRESENTING TO THE DISTRICT COURT THE PROBLEM
WHICH IT HAS NOW RAISED HERE BUT WHICH WE PREFER AT THIS JUNCTURE TO
LEAVE IN THE HANDS OF THE DISTRICT COURT.  /7/  THE JUDGMENT IS
AFFIRMED. 

              IT IS SO ORDERED. 

/1/  THROUGHOUT THIS LITIGATION, CONGRESSIONAL DISTRICTING HAS BEEN
AT ISSUE AS WELL AND HAS SUFFERED THE SAME FATE AS REAPPORTIONMENT OF
THE LEGISLATURE.  HOWEVER, APPEAL HAS BEEN TAKEN HERE ONLY WITH RESPECT
TO THE LOWER COURT'S DECREE CONCERNING LEGISLATIVE REAPPORTIONMENT. 

/2/  THE COURT ISSUED TWO SUPPLEMENTAL DECREES IN 1966 WHICH
MODIFIED AND CLARIFIED THE ORIGINAL ORDER.  254 F.SUPP.  997, 289
F.SUPP.  827. 

/3/  APPARENTLY UNDER ARIZONA LAW, A REFERENDUM IS REQUIRED BEFORE A
BILL CAN BECOME LAW WHERE, AS HERE, SUFFICIENT SIGNATURES AGAINST THE
BILL ARE FILED WITH THE SECRETARY OF STATE.  SEE KLAHR V. WILLIAMS, 289
F.SUPP.  829 (ARIZ. 1967). 

/4/  "THE POPULATION FACTOR IN EACH OF THE ELECTION PRECINCTS
COMPRISING PART OF A LEGISLATIVE DISTRICT WAS OBTAINED BY INSTRUCTING
THE COMPUTER TO TAKE THE 1968 VOTER REGISTRATION FOR THE PRECINCT AND
DIVIDE IT BY THE 1968 VOTER REGISTRATION FOR THE COUNTY IN WHICH THE
PRECINCT WAS LOCATED, THEREBY OBTAINING THE PERCENTAGE OF REGISTERED
VOTERS OF THE COUNTY RESIDING WITHIN THE PRECINCT.  THE COMPUTER WAS
THEN DIRECTED TO MULTIPLY THAT PERCENTAGE FIGURE BY THE 1960 CENSUS FOR
THE COUNTY IN WHICH THE PRECINCT WAS LOCATED, THEREBY OBTAINING THE
POPULATION FACTOR FOR THE PRECINCT."  313 F.SUPP.,AT 151-152. 

/5/  THOUGH WE NOTED IN BURNS V. RICHARDSON, 384 U.S. 73, 89 N. 16,
THAT "(THE FACT THAT DISTRICT BOUNDARIES MAY HAVE BEEN DRAWN IN A WAY
THAT MINIMIZES THE NUMBER OF CONTESTS BETWEEN PRESENT INCUMBENTS DOES
NOT IN AND OF ITSELF ESTABLISH INVIDIOUSNESS," IT IS SUFFICIENT TO NOTE
HERE THAT THE DISTIRCT COURT DID NOT BASE ITS DECISION SOLELY ON THIS
FACTOR.     /6/  E.G., REYNOLDS V. SIMS, 377 U.S. 533, 586 (1964): 

"(LEGISLATIVE REAPPORTIONMENT IS PRIMARILY A MATTER FOR LEGISLATIVE
CONSIDERATION AND DETERMINATION, AND . . . JUDICIAL RELIEF BECOMES
APPROPRIATE ONLY WHEN A LEGISLATURE FAILS TO REAPPORTION ACCORDING TO
FEDERAL CONSTITUTIONAL REQUISITES IN A TIMELY FASHION AFTER HAVING HAD
AN ADEQUATE OPPORTUNITY TO DO SO." 

/7/  APPELLANT HAS CONTENDED HERE THAT THE USE OF VOTER REGISTRATION
FIGURES, RATHER THAN ACTUAL POPULATION, TO DETERMINE DISTRICT SIZE
OPERATES TO THE DETRIMENT OF THE POOR, BLACKS, MEXICAN-AMERICANS, AND
AMERICAN INDIANS.  IN LIGHT OF OUR DISPOSITION OF THIS CASE, WE NEED
ONLY ADVERT TO OUR ADMONITION IN BURNS V. RICHARDSON, SUPRA, THAT USE
OF VOTER REGISTRATION AS A BASIS MAY "PERPETUATE UNDER-REPRESENTATION
OF GROUPS CONSTITUTIIONALLY ENTITLED TO PARTICIPATE IN THE THE
ELECTORAL PROCESS," 384 U.S.,AT 92, AND IS ALLOWABLE ONLY IF IT
PRODUCES "A DISTRIBUTION OF LEGISLATORS NOT SUBSTANTIALLY DIFFERENT
FROM THAT WHICH WOULD HAVE RESULTED FROM THE USE OF A PERMISSIBLE
POPULATION BASIS."  ID., AT 93.  WE PRESUME, OF COURSE, THAT ANY PLAN
SUBMITTED, AND CERTAINLY ANY PLAN APPROVED BY THE DISTRICT COURT, WILL
BE FAITHFUL TO THIS REQUIREMENT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 

THE COMPLAINT IN THIS CASE WAS FILED ON APRIL 27, 1964.  THE
DISTRICT COURT STAYED ALL PROCEEDINGS ON JUNE 25, 1964, UNTIL AFTER THE
NEXT REGULAR SESSION OF THE LEGISLATURE AND, WHEN NOTHING WAS ACHIEVED,
STAYED THEM AGAIN UNTIL AFTER A SPECIAL SESSION.  A REAPPORTIONMENT
PLAN PRODUCED BY THAT LEGISLATURE WAS HELD UNCONSTITUTIONAL.  250
F.SUPP.  537. 

THEREUPON THE DISTRICT COURT DREW A "TEMPORARY AND PROVISIONAL" PLAN
FOR THE GENERAL ELECTIONS OF 1966 AND 1968.  SEE 254 F.SUPP.  997; 289
F.SUPP.  827; 303 F.SUPP.  224.  IN 1967 THE LEGISLATURE PRODUCED
ANOTHER PLAN WHICH WAS APPROVED BY THE VOTERS AND BECAME EFFECTIVE
JANUARY 17, 1969.  THIS PLAN WAS ALSO DECLARED UNCONSTITUTIONAL BY THE
DISTRICT COURT ON JULY 22, 1969.  THE LEGISLATURE THEN ADOPTED A NEW
PLAN EFFECTIVE JANUARY 22, 1970.  THE DISTRICT COURT ALLOWED THIS PLAN
TO BE USED FOR THE 1970 GENERAL ELECTION, ALTHOUGH IT CONSIDERED THE
PLAN TO BE UNCONSTITUTIONAL.  THE DISTRICT COURT IN ITS DECREE
PROVIDED: 

     "THE COURT, HAVING BEEN ADVISED THAT DETAILED POPULATION

  FIGURES FOR THE STATE OF ARIZONA WILL BE AVAILABLE FROM THE

  OFFICIAL 1970 CENSUS BY THE SUMMER OF 1971, ASSUMES THAT THE

  ARIZONA LEGISLATURE WILL BY NOVEMBER 1, 1971, ENACT A VALID PLAN

  OF REAPPORTIONMENT FOR BOTH HOUSES OF THE ARIZONA LEGISLATURE AND

A VALID PLAN OF REDISTRICTING THE CONGRESSIONAL DISTRICTS OF

  ARIZONA.  UPON FAILURE OF THE LEGISLATURE SO TO DO, ANY PARTY TO

  THIS ACTION MAY APPLY TO THE COURT FOR APPROPRIATE RELIEF." 

THE DISTRICT COURT ALSO RETAINED JURISDICTION OF THE CAUSE.  313
F.SUPP.  148. 

SINCE REYNOLDS V. SIMS, 377 U.S. 533, ARIZONA HAS NOT HAD A
CONSTITUTIONALLY VALID APPORTIONMENT PLAN.  MEMBERS OF THE ARIZONA
LEGISLATURE WHO WERE ELECTED IN THE 1970 ELECTION WERE ELECTED UNDER A
PLAN THE DISTRICT COURT HELD UNCONSTITUTIONAL.  UNDER THAT PLAN A
COMPUTER WAS INSTRUCTED TO REDISTRICT THE STATE AND TO ACCOMPLISH, IN
ORDER, THE FOLLOWING OBJECTIVES:  (1) TO MAKE THE DISTRICTS AS EQUAL IN
POPULATION AS POSSIBLE; (2) TO CIRCUMSCRIBE THE DISTRICTS IN SUCH A WAY
THAT EACH INCLUDED ONE INCUMBENT SENATOR AND TWO INCUMBENT
REPRESENTATIVES; (3) TO MAKE THE DISTRICTS COMPACT; AND (4) TO MAKE
DISTRICTS POLITICALLY HOMOGENEOUS. 

EVEN ASSUMING THE LEGISLATIVE DISTRICTS WERE OF EQUAL POPULATION THE
PLAN WOULD HAVE SEVERAL PRACTICAL DEFICIENCIES AS FAR AS MINIORITY
REPRESENTATION GOES.  THE 1970 PLAN INSURED THAT NO INCUMBENT WOULD BE
RUNNING AGAINST ANOTHER INCUMBENT, AS OFTEN MAY HAPPEN UNDER A
REAPPORTIONMENT PLAN.  THUS THE OPPORTUNITY FOR PRESERVING THE STATUS
QUO WAS ASSISTED. 

AN EFFORT TO MAKE EACH DISTRICT POLITICALLY HOMOGENEOUS COMPOUNDED
THIS PROBLEM.  THE RECORD PROVIDES A NEW DEFINITION OF GERRYMANDERING. 
A GERRYMANDERED DISTRICT IN ARIZONA IS NOT ONE WHERE A "NATURAL"
MAJORITY FINDS ITS POWER ERASED BY EITHER MOVING LINES TO INCREASE THE
NUMBERS OF THE OPPOSITION IN THE DISTRICT OR BY MOVING THE LINES SO
THAT A MAJORITY IS DISPERSED.  IN ARIZONA A GERRYMANDERED DISTRICT CAME
TO BE ONE THAT IS OVERWHELMINGLY EITHER REPUBLICAN OR DEMOCRATIC.  THUS
WHEN THE SECOND AND FOURTH FACTORS ARE COMBINED AN INCUMBENT HAD NOT
ONLY THE NATURAL BENEFITS OF INCUMBENCY, BUT ALSO THE BENEFITS (WHERE
POSSIBLE) OF A ONE-PARTY DISTRICT, HIS OWN FIEFDOM. 

THE RECORD REVEALS THT THE 1970 PLAN HEAVILY FAVORED INCUMBENTS EVEN
IF WE ASSUMED EQUAL POPULATION DISTRICTS.  SUCH AN ASSUMPTION, OF
COURSE, IS CONTRARY TO THE FACTS; DEVIATIONS IN ARIZONA RANGED FROM
ABOUT 24% ABOVE THE MEDIAN TO ABOUT 52% BELOW THE MEDIAN. 

THE BASIC UNIT FOR A DISTRICT WAS THE LOCAL POLITICAL PRECINCT. 
UNFORTUNATELY, THERE WERE NO POPULATION FIGURES FOR THE BASIC UNIT,
THUS MAKING IT DIFFICULT TO BUILD THE DISTRICTS.  SUCH FIGURES WERE
CREATED BY PROGRAMMING THE COMPUTER TO ASSUME THAT A PRECINCT
POPULATION WAS THAT PART OF THE 1960 COUNTY POPULATION WHICH THE NUMBER
OF REGISTERED VOTERS IN THE PRECINCT IN 1968 BORE TO THE NUMBER OF
REGISTERED VOTERS IN THE COUNTY IN 1968. 

IF ALL SEGMENTS OF SOCIETY WERE EQUALLY LIKELY TO REGISTER TO VOTE,
THEN THE ARIZONA METHOD OF COMPUTING POPULATION WOULD BE
UNOBJECTIONABLE.  BUT ALL MEMBERS OF A COMMUNITY ARE NOT EQUALLY LIKELY
TO REGISTER.  FOR EXAMPLE, ONLY TWO COUNTIES OUT OF EIGHT WITH SPANISH
SURNAME POPULATIONS IN EXCESS OF 15% SHOWED A VOTER REGISTRATION EQUAL
TO THE STATEWIDE AVERAGE.  /1/  NOT ONLY ARE THE POOR, THE BLACKS, THE
CHICANOS, AND THE INDIANS LESS LIKE TO REGISTER IN THE FIRST PLACE,
THEY ARE ALSO LIKELY TO HAVE A HIGHER RATE OF ILLITERACY AMONG THEIR
MEMBERS.  ARIZONA LAW AT THE TIME OF THE DECISION BELOW REQUIRED A
LITERACY TEST FOR VOTER REGISTRATION.  ARIZ. REV. STAT. ANN. SECS. 16
101(A)(4), 16-101(A)(5).  NATURALLY THIS COMPOUNDED THE PROBLEM OF
UNDERREGISTRATION OF MINORITY GROUPS.  /2/  WHILE THE PRESENT RECORD
LACKS SOME BASIC STATISTICS, WE DO KNOW THAT IN 1965 THE BUREAU OF THE
CENSUS DETERMINED THAT LESS THAN 50% OF THE RESIDENTS OF VOTING AGE
WERE REGISTERED OR VOTED IN THE 1964 PRESIDENTIAL ELECTION IN APACHE
COUNTY, NAVAJO COUNTY, AND COCONINO COUNTY.  30 FED.REG.  9897, 14505. 
UNDER SEC. 4(A) OF THE VOTING RIGHTS ACT OF 1965, 79 STAT. 438, THE
APPLICATION OF THE LITERACY TESTS WAS SUSPENDED BY THE PUBLICATION OF
THE STATISTICS IN THE FEDERAL REGISTER, BUT THE SUSPENSION WAS LIFTED A
YEAR LATER ON THE SHOWING THAT THE LITERACY TESTS HAD NOT BEEN USED IN
A DISCRIMINATORY MANNER.  APACHE COUNTY V. UNITED STATES, 256 F.SUPP. 
903.  AS OF LAST FALL YUMA COUNTY WAS SUBJECT TO THE LITERACY TEST BAN
OF THE VOTING RIGHTS ACT OF 1965.  SEE OREGON V. MITCHELL, 400 U.S.
112, 131 N. 12. 

THE 1970 PLAN ADVERSELY AFFECTED MINORITIES.  BECAUSE OF THE
REGISTRATION STATISTICS USED, ONE DISTRICT IN THE PHOENIX GHETTO HAD
APPROXIMATELY 70,000 RESIDENTS WHILE AN AFFLUENT ALL-WHITE DISTRICT IN
ANOTHER AREA OF PHOENIX HAD ONLY 27,000 RESIDENTS.  THE INDIAN
RESERVATION AREA IN NORTHEASTERN ARIZONA FARED LITTLE BETTER.  WHILE IT
HAD SUFFICIENT NUMBERS OF INDIANS TO JUSTIFY A SEPARATE DISTRICT WHICH
COULD UNDOUBTEDLY ELECT INDIAN REPRESENTATIVES IN THE STATE
LEGISLATURE, THE INDIANS WERE DONE IN.  AT THE TIME OF THIS SUIT THERE
WERE NO INDIANS ELECTED TO EITHER THE STATE HOUSE OR SENATE.  BUT JUST
TO THE SOUTH OF THE AREA TWO STATE SENATORS LIVED 10 MILES APART. 
HENCE, THE INCUMBENCY RULE WAS INVOKED TO SPLIT THE INDIAN AREA SO AS
TO ACCOMMODATE THE TWO WHITE SENATORS. 

THE ARIZONA LEGISLATURE HAS YET TO DEVELOP A REAPPORTIONMENT PLAN
WHICH CAN PASS CONSTITUTIONAL MUSTER.  THE INCUMBENTS WHO NOW HAVE THE
OPPORTUNITY TO DRAFT THE PLAN COME FROM DISTRICTS WHICH ARE
MALAPPORTIONED AND OVERREPRESENT THE WHITE VOTE.  A VALID APPORTIONMENT
PLAN WILL SEEMINGLY MEAN THE DEFEAT OF SEVERAL INCUMBENTS.  THE NEW
EFFORTS TO GERRYMANDER THE STATE FOR THE MEMBERS OF THE CURRENT
LEGISLATURE WILL DOUBTLESS BE PRODIGIOUS.  MEMBERS OF THE 1970
LEGISLATURE HAD THE TWIN ADVANTAGES OF RUNNING AS SINGLE INCUMBENTS AND
IN POLITICALLY HOMOGENEOUS DISTRICTS.  MEMBERS OF MINORITY GROUPS HAD
THE DISADVANTAGE OF UNDERREPRESENTATION.  THAT INVIDIOUS DISCRIMINATION
STILL EXISTS. 

ON ORAL ARGUMENT IT WAS SAID THAT THERE IS NO POINT IN INITIATING
THE DESIGN OF A REAPPORTIONMENT PLAN NOW BECAUSE THE 1970 CENSUS
FIGURES ARE NOT AVAILABLE.  THAT ARGUMENT IS DIFFICULT TO COMPREHEND,
FOR IT APPEARS /3/  THAT IN MARCH 1971 NEW JERSEY COMPLETED A
COMPREHENSIVE REAPPORTIONMENT PLAN BASED ON THE 1970 CENSUS.  THE
DISTRICT COURT HAS SHOWN GREAT PATIENCE AND HAS BEEN PERSEVERING.  IT
PROBABLY IS THE FIRST TO REALIZE THAT THE GORDIAN KNOT MUST BE CUT IF
THERE IS TO BE A PLAN THAT SATISFIES CONSTITUTIONAL REQUIREMENTS. 

IT HAS INDICATED IT WILL WAIT UNTIL NOVEMBER 1, 1971, BEFORE IT
INITIATES A CONSTITUTIONAL PLAN.  THE HEARINGS ON SUCH A PLAN WILL
DOUBTLESS BE LONG DRAWN OUT AND EXTENSIVE.  THE PRIZE IS GREAT, FOR IF
THE PRESENT INCUMBENTS CAN PROLONG MATTERS, THE 1972 ELECTION MAY COME
AND GO WITH THE EXISTING INVALID 1970 PLAN IN EFFECT.  IT IS NOT
DIFFICULT TO IMAGINE HOW EASY THAT STRATEGY MIGHT BE.  THE 1972
PRIMARIES IN ARIZONA ARE IN SEPTEMBER.  /4/ 

PRIMARIES APART, THERE IS ALWAYS THE PROBLEM OF REVIEW BY THIS
COURT.  WE ARE PLAGUED WITH ELECTION CASES COMING HERE ON THE EVE OF
ELECTIONS, WITH THE REMAINING TIME SO SHORT WE DO NOT HAVE THE DAYS
NEEDED FOR ORAL ARGUMENT AND FOR REFLECTION ON THE SERIOUS PROBLEMS
THAT ARE USUALLY PRESENTED.  IF AN ELECTION CASE IS FILED IN OUR SUMMER
RECESS, WE WILL NOT CONSIDER IT UNTIL THE FIRST WEEK IN OCTOBER; AND
OUR EFFORT TO NOTE THE APPEAL, HEAR THE CASE, AND DECIDE IT BEFORE
NOVEMBER WITHOUT DISRUPTING THE STATE ELECTION MACHINERY IS VIRTUALLY
IMPOSSIBLE.  THE TIME NEEDED IS LACKING.  /5/ 

IF A CASE IS TO BE HEARD AND DECIDED ON THESE IMPORTANT ISSUES IT
MUST BE HERE BY FEBRUARY SO THAT WE CAN WORK IT INTO OUR SPRING
CALENDAR OF ARGUED CASES AND DECIDE IT BEFORE JULY.  IF THE DISTRICT
COURT WAITS UNTIL NOVEMBER TO HOLD HEARINGS AND PUT A REAPPORTIONMENT
PLAN IN OPERATION, IT IS UNLIKELY THAT ANY SUCH SCHEDULE CAN BE MET. 

IT IS, THEREFORE, ESSENTIAL THAT THE JUDICIAL MACHINERY BE PUT INTO
MOTION SOON, SO THAT A RESOLUTION OF A MATTER THAT HAS DEFIED SOLUTION
FOR SEVEN YEARS BE NO LONGER DELAYED.  I WRITE THESE WORDS NOT IN
CRITICISM OF THE DISTRICT COURT BUT IN SUPPORT OF ITS STEADFAST EFFORTS
TO BRING THIS STUBBORN LITIGATION TO AN EARLY END. 

/1/  HEARINGS ON S. 818, S. 2456, S. 2507, AND TITLE IV OF S. 2029
BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE
COMMITTEE ON THE JUDICIARY, 91ST CONG., 1ST AND 2D SESS., 406 (1969
1970). 

/2/  BECAUSE OF THE VOTING RIGHTS ACT AMENDMENTS OF 1970, LITERACY
TESTS WILL NOT BE A FACTOR IN FUTURE ELECTIONS.  SECTION 201, 84 STAT.
315, BARS A STATE FROM DENYING THE RIGHT TO VOTE IN ANY FEDERAL, STATE,
OR LOCAL ELECTION BECAUSE OF "ANY TEST OR DEVICE" WHICH IS DEFINED,
INTER ALIA, TO INCLUDE LITERACY.  THIS PART OF THE ACT WAS UPHELD IN
OREGON V. MITCHELL, 400 U.S. 112. 

/3/  N.Y. TIMES, MARCH 24, 1971, P. 47. 

/4/  THE PRIMARY ELECTION IN ARIZONA IN 1972 WILL BE HELD ON SEPT.
13.  SEE ARIZ. REV. STAT. ANN. SEC. 16-702. 

/5/ WILLIAMS V. RHODES, 393 U.S. 23, WAS AN EXCEPTIONAL CASE.  THERE
MR. JUSTICE STEWART ACTING AS CIRCUIT JUSTICE AND IN CONSULTATION WITH
AVAILABLE MEMBERS OF THIS COURT GRANTED INJUNCTIVE RELIEF ORDERING THE
ELECTION BALLOTS PRINTED IN SUCH A WAY AS TO INCLUDE THE AMERICAN
INDEPENDENT PARTY, THE LOSING PARTY IN THE DISTRICT COURT.  THIS WAS TO
INSURE THAT, IF IT PREVAILED HERE, RELIEF WOULD BE AVAILABLE.  21
L.ED.2D 69, 89 S.CT. 1.  AN EXPEDITED BRIEFING SCHEDULE WAS AUTHORIZED
AND WE HEARD ORAL ARGUMENT AS SOON AS THE TERM COMMENCED.  EIGHT DAYS
LATER OUR OPINION WAS HANDED DOWN MODIFYING THE JUDGMENT OF THE
DISTRICT COURT.  HAD NOT MR. JUSTICE STEWART GRANTED THE INJUNCTION IN
SEPTEMBER THE APPELLANTS' VICTORY WOULD HAVE BEEN A HOLLOW ONE. 

A CHALLENGE TO COLORADO'S DURATIONAL RESIDENCY REQUIREMENT PRIOR TO
THE 1968 ELECTION DID NOT FARE AS WELL.  THE DISTRICT COURT UPHELD THE
REQUIREMENT AND WE HEARD ORAL ARGUMENT AFTER THE ELECTION WAS OVER. 
THE CASE WAS DISMISSED AS MOOT.  HALL V. BEALS, 396 U.S. 45. 

DURATIONAL RESIDENCY REQUIREMENTS HAVE COME BEFORE THE COURT SEVERAL
TIMES THIS TERM.  IN HAYES V. LIEUTENANT GOVERNOR OF HAWAII, THERE WAS
A CHALLENGE TO THE HAWAII DURATIONAL RESIDENCY REQUIREMENT FOR
CANDIDATES.  THE HAWAII SUPREME COURT UPHELD THE LAW IN LATE AUGUST. 
AN APPLICATION FOR AN INJUNCTION WAS DENIED.  WHEN THE APPEAL FINALLY
CAME UP FOR CONSIDERATION ON THE MERITS, AGAIN AFTER THE ELECTION, IT
WAS DISMISSED AS MOOT, 401 U.S. 968.  IN SIRAK V. BROWN A STATE
DURATIONAL RESIDENCY REQUIREMENT FOR VOTERS WAS UPHELD AND, WHEN THIS
COURT DENIED AN INJUNCTION, 400 U.S. 809, THE PLAINTIFF CHOSE NOT TO
DOCKET HIS APPEAL, PROBABLY ON THE BASIS OF HALL V. BEALS, SUPRA.  A
SIMILAR ISSUE WAS PRESENT IN FITZPATRICK V. BOARD OF ELECTION COMM'RS
OF CHICAGO, WHERE WE DENIED A MOTION TO EXPEDITE THE APPEAL, 401 U.S.
905.  HAD ALL THE LOWER COURTS FOLLOWED DRUEDING V. DEVLIN, 234
F.SUPP.  721 (MD. 1964), AFF'D, 380 U.S. 125, THEN MOOTNESS MIGHT HAVE
PREVENTED ANY PLENARY REVIEW OF THE ISSUE.  BUT SEVERAL DISTRICT COURTS
HAVE CONCLUDED THAT SUBSEQUENT DECISIONS HAVE UNDERMINED DRUEDING AND
THUS HAVE INVALIDATED DURATIONAL RESIDENCY REQUIREMENTS.  THIS AVOIDS
THE MOOTNESS ISSUE AND WE HAVE NOTED PROBABLE JURISDICTION IN ONE SUCH
CASE, ELLINGTON V. BLUMSTEIN, 401 U.S. 934.     IN BELLER V. KIRK THERE
WAS A CHALLENGE TO THE FLORIDA REQUIREMENT DEMANDING AN INDEPENDENT
CANDIDATE OBTAIN 5% OF THE REGISTERED VOTERS TO SIGN A PETITION SO THAT
HE COULD GET ON THE BALLOT.  INJUNCTIVE RELIEF WAS DENIED BY INDIVIDUAL
JUSTICES EARLY IN OCTOBER, BUT THE CASE HAS SUBSEQUENTLY BEEN DOCKETED
SUB NOM. BELLER V. ASKEW, NO. 1360.  WE HAVE HEARD ORAL ARGUMENT ON THE
SAME ISSUE IN JENNESS V. FORTSON, NO. 5714. 

THE OHIO LAWS ARE INVOLVED IN SEVERAL CASES PENDING THIS TERM.  IN
ONE, THE DISTRICT COURT HANDED DOWN ITS DECISION LATE IN JULY 1970.  BY
THAT DECISION SEVERAL SECTIONS OF THE OHIO LAWS WERE INVALIDATED AND WE
NOTED PROBABLE JURISDICTION.  GILLIGAN V. SWEETENHAM, 401 U.S. 991.  A
LOYALTY OATH WAS UPHELD AND WE NOTED PROBABLE JURISDICTION IN THAT
CASE.  SOCIALIST LABOR PARTY V. GILLIGAN, 401 U.S. 991.  THE COURT ALSO
UPHELD A PROVISION REQUIRING INDEPENDENT CANDIDATES TO FILE AT THE SAME
TIME AS MAJOR PARTY CANDIDATES.  SWEETENHAM V. GILLIGAN, NO. 790.  A
SIMILAR ISSUE IS ALSO PRESENTED IN PRATT V. BEGLEY, NO. 1044, WHERE THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY MADE ITS RULING IN
EARLY OCTOBER. 

THE THEN-FORTHCOMING CHICAGO ELECTION IN APRIL 1971 ALSO PRESENTED
CASES WHERE ONE OF THE PARTIES NEEDED IMMEDIATE ACTION.  IN JACKSON V.
OGILVIE, THE ISSUE WAS THE REQUIREMENT THAT AN INDEPENDENT OBTAIN 5% OF
THE REGISTERED VOTERS ON A NOMINATING PETITION.  WE DENIED A STAY ON
FEBRUARY 22, 1971, 401 U.S. 904, AND THERE WAS NO WAY THE CASE COULD BE
HEARD PRIOR TO THE ELECTION. 

THROUGH ALL THESE CASES WILLIAMS V. RHODES STANDS OUT AS
EXCEPTIONAL, BECAUSE BOTH THE NECESSARY PREARGUMENT INJUNCTIVE RELIEF
AND EXPEDITED ORAL ARGUMENT WERE OBTAINED. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT UPON THE PREMISES SET FORTH
IN HIS SEPARATE OPINIONS IN WHITCOMB V. CHAVIS, POST, P. 165; OREGON V.
MITCHELL, 400 U.S. 112, 152 (1970); AND REYNOLDS V. SIMS, 377 U.S. 533,
589 (1964). 

PHILIP J. SHEA ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

JOHN M. MCGOWAN II, SPECIAL ASSISTANT ATTORNEY GENERAL OF ARIZONA,
ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WAS GARY K.
NELSON, ATTORNEY GENERAL. 
..END :

















WHITCOMB V. CHAVIS, 403 U.S. 124 


       WHITCOMB, GOVERNOR OF INDIANA V. CHAVIS ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF INDIANA

        NO. 92.  ARGUED DECEMBER 8, 1970-- DECIDED JUNE 7, 1971 


THIS SUIT WAS BROUGHT BY RESIDENTS OF MARION AND LAKE COUNTIES,
INDIANA, CHALLENGING STATE STATUTES ESTABLISHING MARION COUNTY AS A
MULTI-MEMBER DISTRICT FOR THE ELECTION OF STATE SENATORS AND
REPRESENTATIVES.  IT WAS ALLEGED, FIRST, THAT THE LAWS INVIDIOUSLY
DILUTED THE VOTES OF NEGROES AND POOR PERSONS LIVING IN THE "GHETTO
AREA" OF MARION COUNTY, AND, SECOND, THAT VOTERS IN MULTI-MEMBER
DISTRICTS WERE OVERREPRESENTED SINCE THE TRUE TEST OF VOTING POWER IS
THE ABILITY TO CAST A TIE-BREAKING VOTE, AND THE VOTERS IN MULTI-MEMBER
DISTRICTS HAD A GREATER THEORETICAL OPPORTUNITY TO CAST SUCH VOTES THAN
VOTERS IN SINGLE-MEMBER DISTRICTS.  THE TENDENCY OF MULTI-MEMBER
DISTRICT LEGISLATORS TO VOTE AS A BLOC WAS ALLEGED TO COMPOUND THIS
DISCRIMINATION.  THE THREE-JUDGE COURT, THOUGH NOT RULING SQUARELY ON
THE SECOND CLAIM, DETERMINED THAT A RACIAL MINORITY GROUP WITH SPECIFIC
LEGISLATIVE INTERESTS INHABITED A GHETTO AREA IN INDIANAPOLIS, IN
MARION COUNTY; THAT THE STATUTES OPERATED TO MINIMIZE AND CANCEL OUT
THE VOTING STRENGTH OF THIS MINORITY GROUP; AND THAT REDISTRICTING
MARION COUNTY ALONE WOULD LEAVE IMPERMISSIBLE VARIATIONS BETWEEN MARION
DISTRICTS AND OTHERS IN THE STATE, THUS REQUIRING STATEWIDE
REDISTRICTING, WHICH COULD NOT AWAIT 1970 CENSUS FIGURES.  THE COURT
HELD THE STATUTES UNCONSTITUTIONAL, AND GAVE THE STATE UNTIL OCTOBER 1,
1969, TO ENACT REAPPORTIONMENT LEGISLATION.  NO SUCH LEGISLATION
ENSUED, AND THE COURT DRAFTED A PLAN USING SINGLE-MEMBER DISTRICTS
THROUGHOUT THE STATE.  THE 1970 ELECTIONS WERE ORDERED TO BE HELD IN
ACCORDANCE WITH THE NEW PLAN.  THIS COURT GRANTED A STAY OF JUDGMENT
PENDING FINAL ACTION ON THE APPEAL, THUS PERMITTING THE 1970 ELECTIONS
TO BE HELD UNDER THE CONDEMNED STATUTES.  UNDER THOSE STATUTES, BASED
ON THE 1960 CENSUS, THERE WAS A MAXIMUM VARIANCE IN POPULATION OF
SENATE DISTRICTS OF 28.20%, WITH A RATIO BETWEEN THE LARGEST AND
SMALLEST DISTRICTS OF 1.327 TO 1, AND A MAXIMUM VARIANCE IN HOUSE
DISTRICTS OF 24.78%, WITH A RATIO OF 1.279 TO 1.  HELD:  THE JUDGMENT
IS REVERSED AND THE CASE REMANDED.  PP. 140-170; 179-180. 

305 F.SUPP.  1364, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT WITH RESPECT TO
PARTS I-VI, FINDING THAT: 

1.  ALTHOUGH, AS THE COURT WAS ADVISED ON JUNE 1, 1971, THE INDIANA
LEGISLATURE ENACTED NEW APPORTIONMENT LEGISLATION PROVIDING FOR
STATEWIDE SINGLE-MEMBER HOUSE AND SENATE DISTRICTS, THE CASE IS NOT
MOOT.  PP. 140-141. 

2.  THE VALIDITY OF MULTI-MEMBER DISTRICTS IS JUSTICIABLE, BUT A
CHALLENGER HAS THE BURDEN OF PROVING THAT SUCH DISTRICTS
UNCONSTITUTIONALLY OPERATE TO DILUTE OR CANCEL THE VOTING STRENGTH OF
RACIAL OR POLITICAL GROUPS.  P. 141-144. 

3.  THE ACTUAL, AS DISTINGUISHED FROM THEORETICAL, IMPACT OF MULTI
MEMBER DISTRICTS ON INDIVIDUAL VOTING POWER HAS NOT BEEN SUFFICIENTLY
DEMONSTRATED ON THIS RECORD TO WARRANT DEPARTURE FROM PRIOR CASES
INVOLVING MULTI-MEMBER DISTRICTS, AND NEITHER THE FINDINGS BELOW NOR
THE RECORD SUSTAINS THE VIEW THAT MULTI-MEMBER DISTRICTS OVERREPRESENT
THEIR VOTERS AS COMPARED WITH VOTERS IN SINGLE-MEMBER DISTRICTS, EVEN
IF THE MULTI-MEMBER LEGISLATIVE DELEGATION TENDS TO BLOC VOTING.  PP.
144-148. 

4.  APPELLEES' CLAIM THAT THE FACT THAT THE NUMBER OF GHETTO
RESIDENTS WHO WERE LEGISLATORS WAS NOT PROPORTIONATE TO GHETTO
POPULATION PROVES INVIDIOUS DISCRIMINATION, NOTWITHSTANDING THE ABSENCE
OF EVIDENCE THAT GHETTO RESIDENTS HAD LESS OPPORTUNITY TO PARTICIPATE
IN THE POLITICAL PROCESS, IS NOT VALID, AND ON THIS RECORD THE
MALPROPORTION WAS DUE TO THE GHETTO VOTERS' CHOICES LOSING THE ELECTION
CONTEST.  PP. 148-155. 

5.  THE TRIAL COURT'S CONCLUSION THAT, WITH RESPECT TO THEIR UNIQUE
INTERESTS, GHETTO RESIDENTS WERE INVIDIOUSLY UNDERREPRESENTED DUE TO
LACK OF THEIR OWN LEGISLATIVE VOICE, WAS NOT SUPPORTED BY THE
FINDINGS.  MOREOVER, EVEN ASSUMING BLOC VOTING BY THE COUNTY DELEGATION
CONTRARY TO THE GHETTO MAJORITY'S WISHES, THERE IS NO CONSTITUTIONAL
VIOLATION, SINCE THAT SITUATION INHERES IN THE POLITICAL PROCESS,
WHETHER THE DISTRICT BE SINGLE- OR MULTI-MEMBER.  P. 155. 

6.  MULTI-MEMBER DISTRICTS HAVE NOT BEEN PROVED INHERENTLY INVIDIOUS
OR VIOLATIVE OF EQUAL PROTECTION, BUT, EVEN ASSUMING THEIR
UNCONSTITUTIONALITY, IT IS NOT CLEAR THAT THE REMEDY IS A SINGLE-MEMBER
SYSTEM WITH LINES DRAWN TO ENSURE REPRESENTATION TO ALL SIZABLE RACIAL,
ETHNIC, ECONOMIC, OR RELIGIOUS GROUPS.  PP. 156-160. 

7.  THE DISTRICT COURT ERRED IN BRUSHING ASIDE THE ENTIRE STATE
APPORTIONMENT POLICY WITHOUT SOLID CONSTITUTIONAL AND EQUITABLE GROUNDS
FOR DOING SO, AND WITHOUT CONSIDERING MORE LIMITED ALTERNATIVES.  PP.
160-161. 

MR. JUSTICE WHITE, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE BLACKMUN, CONCLUDED, IN PART VII, THAT IT WAS NOT
IMPROPER FOR THE DISTRICT COURT TO ORDER STATEWIDE REDISTRICTING ON THE
BASIS OF THE EXCESSIVE POPULATION VARIANCES BETWEEN THE LEGISLATIVE
DISTRICCTS SHOWN BY THIS RECORD.  THAT COURT ORDERED REAPPORTIONMENT
NOT BECAUSE OF POPULATION SHIFTS SINCE ITS 1965 DECISION UPHOLDING THE
STATUTORY PLAN BUT BECAUSE THE DISPARITIES HAD BEEN SHOWN TO BE
EXCESSIVE BY INTERVENING DECISIONS OF THIS COURT.  PP. 161-163. 

MR. JUSTICE DOUGLAS, JOINED BY MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL, CONCLUDED, WITH RESPECT TO REDISTRICTING THE ENTIRE STATE,
THAT THERE WERE IMPERMISSIBLE POPULATION VARIANCES BETWEEN DISTRICTS
UNDER THE CURRENT APPORTIONMENT PLAN, AND THAT THE NEW MARION COUNTY
DISTRICTS WOULD ALSO HAVE IMPERMISSIBLE VARIANCES, THUS REQUIRING
STATEWIDE REDISTRICTING.  PP. 179-180. 

WHITE, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION,
OF THE COURT WITH RESPECT TO PARTS I-VI, IN WHICH BURGER, C.J., AND
BLACK, STEWART, AND BLACKMUN, JJ., JOINED, AND IN WHICH, AS TO PART
VII, BURGER, C.J., AND BLACK AND BLACKMUN, JJ., JOINED.  STEWART, J.,
FILED A STATEMENT JOINING IN PARTS I-VI AND DISSENTING FROM PART VII,
POST, P. 161.  HARLAN, J., FILED A SEPARATE OPINION, POST, P. 165. 
DOUGLAS, J., FILED AN OPINION DISSENTING IN PART AND CONCURRING IN THE
RESULT IN PART, IN WHICH BRENNAN AND MARSHALL, JJ., JOINED, POST, P.
171. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT WITH RESPECT TO
THE VALIDITY OF THE MULTI-MEMBER ELECTION DISTRICT IN MARION COUNTY,
INDIANA (PARTS I-VI), TOGETHER WITH AN OPINION (PART VII), IN WHICH THE
CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE BLACKMUN JOINED, ON
THE PROPRIETY OF ORDERING REDISTRICTING OF THE ENTIRE STATE OF INDIANA,
AND ANNOUNCED THE JUDGMENT OF THE COURT. 

WE HAVE BEFORE US IN THIS CASE THE VALIDITY UNDER THE EQUAL
PROTECTION CLAUSE OF THE STATUTES DISTRICTING AND APPORTIONING THE
STATE OF INDIANA FOR ITS GENERAL ASSEMBLY ELECTIONS.  THE PRINCIPAL
ISSUE CENTERS ON THOSE PROVISIONS CONSTITUTING MARION COUNTY, WHICH
INCLUDES THE CITY OF INDIANAPOLIS, A MULTI-MEMBER DISTRICT FOR ELECTING
STATE SENATORS AND REPRESENTATIVES. 

        I 

INDIANA HAS A BICAMERAL GENERAL ASSEMBLY CONSISTING OF A HOUSE OF
REPRESENTATIVES OF 100 MEMBERS AND A SENATE OF 50 MEMBERS.  EIGHT OF
THE 31 SENATORIAL DISTRICTS AND 25 OF THE 39 HOUSE DISTRICTS ARE MULTI
MEMBER DISTRICTS, THAT IS, DISTRICTS THAT ARE REPRESENTED BY TWO OR
MORE LEGISLATORS ELECTED AT LARGE BY THE VOTERS OF THE DISTRICT.  /1/
UNDER THE STATUTES HERE CHALLENGED, MARION COUNTY IS A MULTI-MEMBER
DISTRICT ELECTING EIGHT SENATORS AND 15 MEMBERS OF THE HOUSE. 

ON JANUARY 9, 1969, SIX RESIDENTS OF INDIANA, FIVE OF WHOM WERE
RESIDENTS OF MARION COUNTY, FILED A SUIT DESCRIBED BY THEM AS
"ATTACKING THE CONSTITUTIONALITY OF TWO STATUTES OF THE STATE OF
INDIANA WHICH PROVIDE FOR MULTI-MEMBER DISTRICTING AT LARGE OF GENERAL
ASSEMBLY SEATS IN MARION COUNTY, INDIANA . . . ."  /2/  PLAINTIFFS /3/
CHAVIS, RAMSEY, AND BRYANT ALLEGED THAT THE TWO STATUTES INVIDIOUSLY
DILUTED THE FORCE AND EFFECT OF THE VOTE OF NEGROES AND POOR PERSONS
LIVING WITHIN CERTAIN MARION COUNTY CENSUS TRACTS CONSTITUTING WHAT WAS
TERMED "THE GHETTO AREA."  RESIDENTS OF THE AREA WERE ALLEGED TO HAVE
PARTICULAR DEMOGRAPHIC CHARACTERISTICS RENDERING THEM COGNIZABLE AS A
MINORITY INTEREST GROUP WITH DISTINCTIVE INTERESTS IN SPECIFIC AREAS OF
THE SUBSTANTIVE LAW.  WITH SINGLE-MEMBER DISTRICTING, IT WAS SAID, THE
GHETTO AREA WOULD ELECT THREE MEMBERS OF THE HOUSE AND ONE SENATOR,
WHEREAS UNDER THE PRESENT DISTRICTING VOTERS IN THE AREA "HAVE ALMOST
NO POLITICAL FORCE OR CONTROL OVER LEGISLATORS BECAUSE THE EFFECT OF
THEIR VOTE IS CANCELLED OUT BY OTHER CONTRARY INTEREST GROUPS" IN
MARION COUNTY.  THE MECHANISM OF POLITICAL PARTY ORGANIZATION AND THE
INFLUENCE OF PARTY CHAIRMEN IN NOMINATING CANDIDATES WERE ADDITIONAL
FACTORS ALLEGED TO FRUSTRATE THE EXERCISE OF POWER BY RESIDENTS OF THE
GHETTO AREA. 

PLAINTIFF WALKER, A NEGRO RESIDENT OF LAKE COUNTY, ALSO A MULTI
MEMBER DISTRICT BUT A SMALLER ONE, ALLEGED AN INVIDIOUS DISCRIMINATION
AGAINST LAKE COUNTY NEGROES BECAUSE MARION COUNTY NEGROES, ALTHOUGH NO
GREATER IN NUMBER THAN LAKE COUNTY NEGROES, HAD THE OPPORTUNITY TO
INFLUENCE THE ELECTION OF MORE LEGISLATORS THAN LAKE COUNTY NEGROES. 
/4/  THE CLAIM WAS THAT MARION COUNTY WAS ONE-THIRD LARGER IN
POPULATION AND THUS HAD APPROXIMATELY ONE-THRID ONE-THIRD MORE ASSEMBLY
SEATS THAN LAKE COUNTY, BUT THAT VOTER INFLUENCE DOES NOT VARY
INVERSELY WITH POPULATION AND THAT PERMITTING MARION COUNTY VOTERS TO
ELECT 23 ASSEMBLYMEN AT LARGE GAVE THEM A DISPROPORTIONATE ADVANTAGE
OVER VOTERS IN LAKE COUNTY.  /5/  THE TWO REMAINING PLAINTIFFS
PRESENTED CLAIMS NOT AT ISSUE HERE.  /6/ 

A THREE-JUDGE COURT CONVENED AND TRIED THE CASE ON JUNE 17 AND 18,
1969.  BOTH DOCUMENTARY EVIDENCE AND ORAL TESTIMONY WERE TAKEN
CONCERNING THE COMPOSITION AND CHARACTERISTICS OF THE ALLEGED GHETTO
AREA, THE MANNER IN WHICH LEGISLATIVE CANDIDATES WERE CHOSEN AND THEIR
RESIDENCE AND TENURE, AND THE PERFORMANCE OF MARION COUNTY'S DELEGATION
IN THE INDIANA GENERAL ASSEMBLY.  /7/ 

THE THREE-JUDGE COURT FILED ITS OPINION CONTAINING ITS FINDINGS AND
CONCLUSIONS ON JULY 28, 1969, HOLDING FOR PLAINTIFFS.  CHAVIS V.
WHITCOMB, 305 F.SUPP.  1364 (SD IND. 1969).  SEE ALSO 305 F.SUPP. 
1359(1969) (PRE-TRIAL ORDERS) AND 307 F.SUPP.  1362 (1969) (STATEWIDE
REAPPPORTIONMENT PLAN AND IMPLEMENTING ORDER).  IN SUM, IT CONCLUDED
THAT MARION COUNTY'S MULTI-MEMBER DISTRICT MUST BE DISESTABLISHED AND,
BECAUSE OF POPULATION DISPARITIES NOT DIRECTLY RELATED TO THE PHENOMENA
ALLEGED IN THE COMPLAINT, THE ENTIRE STATE MUST BE REDISTRICTED.  MORE
PARTICULARLY, IT FIRST DETERMINED THAT A RACIAL MINORITY GROUP
INHABITED AN IDENTIFIABLE GHETTO AREA IN INDIANAOPLIS.  /8/  THAT AREA,
LOCATED IN THE NORTHERN HALF OF CENTER TOWNSHIP AND TERMED THE "CENTER
TOWNSHIP GHETTO," COMPRISED 28 CONTIGUOUS CENSUS TRACTS AND PARTS OF
FOUR OTHERS.  /9/  THE AREA CONTAINED A 1967 POPULATION OF 97,000
NONWHITES, OVER 99% OF WHOM WERE NEGRO, AND 35,000 WHITES.  THE COURT
PROCEEDED TO COMPARE SIX OF THESE TRACTS, REPRESENTATIVE OF THE AREA,
WITH TRACT 211, A PREDOMINANTLY WHITE, RELATIVELY WEALTHY SUBURBAN
CENSUS TRACT IN WASHINGTON TOWNSHIP CONTIGUOUS TO THE NORTHWEST CORNER
OF THE COURT'S GHETTO AREA AND WITH TRACT 220, ALSO IN WASHINGTON
TOWNSHIP, A CONTIGUOUS TRACT INHABITED BY MIDDLE CLASS NEGROES.  STRONG
DIFFERENCES WERE FOUND IN TERMS OF OF HOUSING CONDITIONS, INCOME AND
EDUCATIONAL LEVELS, RATES OF UNEMPLOYMENT, JUVENILE CRIME, AND WELFARE
ASSISTANCE.  THE CONTRASTING CHARACTERISTICS BETWEEN THE COURT'S GHETTO
AREA AND ITS INHABITANTS ON THE ONE HAND AND TRACTS 211 AND 220 ON THE
OTHER INDICATED THE GHETTO'S "COMPELLING INTEREST IN SUCH LEGISLATIVE
AREAS AS URBAN RENEWAL AND REHABILITATION, HEALTH CARE, EMPLOYMENT
TRAINING AND OPPORTUNITIES, WELFARE, AND RELIEF OF THE POOR, LAW
ENFORCEMENT QUALITY OF EDUCATION, AND ANTI-DISCRIMINATION MEASURES." 
305 F.SUPP.,AT 1380.  THESE INTERESTS WERE IN ADDITION TO THOSE THE
GHETTO SHARED WITH THE REST OF THE COUNTY, SUCH AS METROPOLITAN
TRANSPORTATION, FLOOD CONTROL, SEWAGE DISPOSAL, AND EDUCATION. 

THE COURT THEN TURNED TO EVIDENCE SHOWING THE RESIDENCES OF MARION
COUNTY'S REPRESENTATIVES AND SENATORS IN EACH OF THE FIVE GENERAL
ASSEMBLIES ELECTED DURING THE PERIOD 1960 THROUGH 1968.  /10/
EXCLUDING TRACT 220, THE MIDDLE CLASS NEGRO DISTRICT, WASHINGTON
TOWNSHIP, THE RELATIVELY WEALTHY SUBURBAN AREA IN WHICH TRACT 211 WAS
LOCATED, WITH AN AVERAGE OF 13.98% OF MARION COUNTY'S POPULATION, WAS
THE RESIDENCE OF 47.52% OF ITS SENATORS AND 34.33% OF ITS
REPRESENTATIVES.  THE COURT'S CENTER TOWNSHIP GHETTO AREA, WITH 17.8%
OF THE POPULATION, HAD 4.75% OF THE SENATORS AND 5.97% OF THE
REPRESENTATIVES.  THE NONGHETTO AREA OF CENTER TOWNSHIP, WITH 23.32% OF
THE POPULATION, HAD DONE LITTLE BETTER.  ALSO, TRACT 220 ALONE, THE
MIDDLE CLASS NEGRO DISTRICT, HAD ONLY 0.66% OF THE COUNTY'S POPULATION
BUT HAD BEEN THE RESIDENCE OF MORE REPRESENTATIVES THAN HAD THE GHETTO
AREA.  THE GHETTO AREA HAD BEEN REPRESENTED IN THE SENATE ONLY ONCE--
IN 1964 BY ONE SENATOR-- AND THE HOUSE THREE TIMES-- WITH ONE
REPRESENTATIVE IN 1962 AND 1964 AND BY TWO REPRESENTATIVES IN THE 1968
GENERAL ASSEMBLY.  THE COURT FOUND THE "NEGRO CENTER TOWNSHIP GHETTO
POPULATION" TO BE SUFFICIENTLY LARGE TO ELECT TWO REPRESENTATIVES AND
ONE SENATOR IF THE GHETTO TRACTS "WERE SPECIFIC SINGLE-MEMBER
LEGISLATIVE DISTRICTS" IN THE MARION COUNTY.  305 F.SUPP.,AT 1385. 
FROM THESE DATA THE COURT FOUND GROSS INEQUITY OF REPRESENTATION, AS
DETERMINED BY RESIDENCE OF LEGISLATORS, BETWEEN WASHINGTON TOWNSHIP AND
TRACT 220 ON THE ONE HAND AND CENTER TOWNSHIP AND THE CENTER TOWNSHIP
GHETTO AREA ON THE OTHER. 

THE COURT ALSO CHARACTERIZED MARION COUNTY'S GENERAL ASSEMBLY
DELEGATION AS TENDING TO COALESCE AND TAKE COMMON POSITIONS ON PROPOSED
LEGISLATION.  THIS WAS "LARGELY THE RESULT OF ELECTION AT LARGE FROM A
COMMON CONSTITUENCY, AND OBVIATES REPRESENTATION OF A SUBSTANTIAL,
THOUGH MINORITY, INTEREST GROUP WITHIN THAT COMMON CONSTITUENCY." 
IBID.  RELATED FINDINGS WERE THAT, AS A RULE, A CONDIDATE COULD NOT BE
ELECTED IN MARION COUNTY UNLESS HIS PARTY CARRIED THE ELECTION; /11/
COUNTY POLITICAL ORGANIZATIONS HAD SUBSTANTIAL INFLUENCE ON THE
SELECTION AND ELECTION OF ASSEMBLY CANDIDATES (AN INFLUENCE THAT WOULD
DIMINISH BY SINGLE-MEMBER DISTRICTING), AS WELL AS UPON THE ACTIONS OF
THE COUNTY'S DELEGATION IN THE ASSEMBLY; AND THAT AT-LARGE ELECTIONS
MADE IT DIFFICULT FOR THE CONSCINTIOUS NOTER TO MAKE A RATIONAL
SELECTION. 

THE COURT'S CONCLUSIONS OF LAW ON THE MERITS MAY BE SUMMARIZED AS
FOLLOWS: 

1.  THERE EXISTS WITHIN MARION COUNTY AN IDENTIFIABLE RACIAL
ELEMENT, "THE NEGRO RESIDENTS OF THE CENTER TOWNSHIP GHETTO," WITH
SPECIAL INTERESTS IN VARIOUS AREAS OF SUBSTANTIVE LAW, DIVERGING
SIGNIFICANTLY FROM INTERESTS OF NONRESIDENTS OF THE GHETTO.  /12/ 

2.  THE VOTING STRENGTH OF THIS RACIAL GROUP HAS BEEN MINIMIZED BY
MARION COUNTY'S MULTI-MEMBER SENATE AND HOUSE DISTRICT BECAUSE OF THE
STRONG CONTROL EXERCISED BY POLITICAL PARTIES OVER THE SELECTION OF
CANDIDATES, THE INABILITY OF THE NEGRO VOTERS TO ASSURE THEMSELVES THE
OPPORTUNITY TO VOTE FOR PROSPECTIVE LEGISLATORS OF THEIR CHOICE AND THE
ABSENCE OF ANY PARTICULAR LEGISLATORS WHO WERE ACCOUNTABLE FOR THEIR
LEGISLATIVE RECORD TO NEGRO VOTERS. 

3.  PARTY CONTROL OF NOMINATIONS, THE INABILITY OF VOTERS TO KNOW
THE CANDIDATE AND THE RESPONSIBILITY OF LEGISLATORS TO THEIR PARTY AND
THE COUNTY AT LARGE MAKE IT DIFFICULT FOR ANY LEGISLATOR TO DIVERGE
FROM THE MAJORITY OF HIS DELEGATION AND TO BE AN EFFECTIVE
REPRESENTATIVE OF MINORITY GHETTO INTERESTS. 

4.  ALTHOUGH EACH LEGISLATOR IN MARION COUNTY IS ARGUABLY
RESPONSIBLE TO ALL THE VOTERS, INCLUDING THOSE IN THE GHETTO, "(PARTIAL
RESPONSIVENESS OF ALL LEGISLATORS IS (NOT) . . . EQUAL (TO) TOTAL
RESPONSIVENESS AND THE INFORMED CONCERN OF A FEW SPECIFIC
LEGISLATORS."  /13/ 

5.  THE APPORTIONMENT STATUTES OF INDIANA AS THEY RELATE TO MARION
COUNTY OPERATE TO MINIMIZE AND CANCEL OUT THE VOTING STRENGTH OF A
MINORITY RACIAL GROUP, NAMELY NEGROES RESIDING IN THE CENTER TOWNSHIP
GHETTO, AND TO DEPRIVE THEM OF THE EQUAL PROTECTION OF THE LAWS. 

6.  AS A LEGISLATIVE DISTRICT, MARION COUNTY IS LARGE AS COMPARED
WITH THE TOTAL NUMBER OF LEGISLATORS, IT IS NOT SUBDISTRICTED TO INSURE
DISTRIBUTION OF THE LEGISLATORS OVER THE COUNTY AND COMPRISES A MULTI
MEMBER DISTRICT FOR BOTH THE HOUSE AND THE SENATE.  (SEE BURNS V.
RICHARDSON, 384 U.S. 73, 88 (1966).) 

7.  TO REDISTRICT MARION COUNTY ALONE WOULD LEAVE IMPERMISSIBLE
VARIATIONS BETWEEN MARION COUNTY DISTRICTS AND OTHER DISTRICTS IN THE
STATE.  STATEWIDE REDISTRICTING WAS REQUIRED, AND IT COULD NOT AWAIT
THE 1970 CENSUS FIGURES ESTIMATED TO BE AVAILABLE WITHIN A YEAR. 

8.  IT MAY NOT BE POSSIBLE FOR THE INDIANA GENERAL ASSEMBLY TO
COMPLY WITH THE STATE CONSTITUTIONAL REQUIREMENT PROHIBITING CROSSING
OR DIVIDING COUNTIES FOR SENATORIAL APPORTIONMENT /14/  AND STILL MEET
THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE ADUMBRATED IN RECENT
CASES.  /15/ 

9.  PLAINTIFF WALKER'S CLAIM AS A NEGRO VOTER RESIDENT OF LAKE
COUNTY THAT HE WAS DISCRIMINATED AGAINST BECAUSE LAKE COUNTY NEGROES
COULD VOTE FOR ONLY 16 ASSEMBLYMEN WHILE MARION COUNTY NEGROES COULD
VOTE FOR 23 WAS DEEMED UNTENABLE.  IN HIS SECOND CAPACITY, AS A GENERAL
VOTER IN LAKE COUNTY, WALKER "PROBABLY HAS RECEIVED LESS EFFECTIVE
REPRESENTATION" THAN MARION COUNTY VOTERS BECAUSE "HE VOTES FOR FEWER
LEGISLATORS AND, THEREFORE, HAS FEWER LEGISLATORS TO SPEAK FOR HIM,"
AND, SINCE IN THEORY VOTING POWER IN MULTI-MEMBER DISTRICTS DOES NOT
VARY INVERSELY TO THE NUMBER OF VOTERS, MARION COUNTY VOTERS HAD
GREATER OPPORTUNITY TO CAST TIE-BREAKING OR "CRITICAL" VOTES.  BUT THE
COURT DECLINED TO HOLD THAT THE LATTER GROUND HAD BEEN PROVED, ABSENT
MORE EVIDENCE CONCERNING LAKE COUNTY.  /16/  IN THIS RESPECT
CONSIDERATION OF WALKER'S CLAIM WAS LIMITED TO THAT TO BE GIVEN THE
UNIFORM DISTRICTING PRINCIPLE IN REAPPORTIONING THE INDIANA GENERAL
ASSEMBLY.  /17/ 

TURNING TO THE PROPER REMEDY, THE COURT FOUND REDISTRICTING OF
MARION COUNTY ESSENTIAL.  ALSO, ALTHOUGH RECOGNIZING THE COMPLAINT WAS
DIRECTED ONLY TO MARION COUNTY, THE COURT THOUGH IT MUST ACT ON THE
EVIDENCE INDICATING THAT THE ENTIRE STATE REQUIRED REAPPORTIONMENT. 
/18/  JUDGMENT WAS WITHHELD IN ALL RESPECTS, HOWEVER, TO GIVE THE STATE
UNTIL OCTOBER 1, 1969, TO ENACT LEGISLATION REMEDYING THE IMPROPER
DISTRICTING AND MALAPPORTIONMENT FOUND TO EXIST BY THE COURT.  /19/  IN
SO DOING THE COURT THOUGH THE STATE "MIGHT WISH TO GIVE CONSIDERATION
TO CERTAIN PRINCIPLES OF LEGISLATIVE APPORTIONMENT BROUGHT OUT AT THE
TRIAL IN THESE PROCEEDINGS."  ID., AT 1391.  FIRST, THE COURT ESCHEWED
ANY INDICATION THAT NEGROES LIVING IN THE GHETTO WERE ENTITLED TO ANY
CERTAIN NUMBER OF LEGISLATORS-- DISTRICTS SHOULD BE DRAWN WITH AN EYE
THAT IS COLOR BLIND, AND SOPHISTICATED GERRYMANDERING WOULD NOT BE
COUNTENANCED.  SECOND, THE LEGISLATURE WAS ADVISED TO KEEP IN MIND THE
THEORETICAL ADVANTAGE INHERING IN VOTERS IN MULTI-MEMBER DISTRICTS,
THAT IS, THERE THEORETICAL OPPORTUNITY TO CAST MORE DECIDING VOTES IN
ANY LEGISLATIVE ELECTION.  REFERRING TO THE TESTIMONY THAT BLOC-VOTING,
MULTI-MEMBER DELEGATIONS HAVE DISPROPORTIONATELY MORE POWER THAN SINGLE
MEMBER DISTRICTS, THE COURT THOUGHT THAT "THE TESTIMONY HAS APPLICATION
HERE."  ALSO, "AS EACH MEMBER OF THE BLOC DELEGATION IS RESPONSIBLE TO
THE VOTER MAJORITY WHO ELECTED THE WHOLE, EACH MARION COUNTEY VOTER HAS
A GREATER VOICE IN THE LEGISLATURE, HAVING MORE LEGISLATORS TO SPEAK
FOR HIM THAN DOES A COMPARABLE VOTER" IN A SINGLE-MEMBER DISTRICT. 
SINGLE-MEMBER DISTRICTS, THE COURT THOUGH, WOULD EQUALIZE VOTING POWER
AMONG THE DISTRICTS AS WELL AS AVOIDING DILUTING POLITICAL OR RACIAL
GROUPS LOCATED IN MULTI-MEMBER DISTRICTS.  THE COURT THEREFORE
RECOMMENDED THAT THE GENERAL ASSEMBLY GIVE CONSIDERATION TO THE UNIFORM
DISTRICT PRINCIPLE IN MAKING ITS APPORTIONMENT.  /20/     ON OCTOBER
15, THE COURT JUDICIALLY NOTICED THAT THE INDIANA GENERAL ASSEMBLY HAD
NOT BEEN CALLED TO REDISTRICT AND REAPPORTION THE STATE.  FOLLOWING
FURTHER HEARINGS AND EXAMINATION OF VARIOUS PLANS SUBMITTED BY THE
PARTIES, THE COURT DRAFTED AND ADOPTED A PLAN BASED ON THE 1960 CENSUS
FIGURES.  WITH RESPECT TO MARION COUNTY, THE COURT FOLLOWED PLAINTIFFS'
SUGGESTED SCHEME, WHICH WAS SAID TO PROTECT "THE LEGALLY COGNIZABLE
RACIAL MINORITY GROUP AGAINST DILUTION OF ITS VOTING STRENGTH."  307
F.SUPP.  1362, 1365 (SD IND. 1969).  SINGLE-MEMBER DISTRICTS WERE
EMPLOYED THROUGHOUT THE STATE, COUNTY LINES WERE CROSSED WHERE
NECESSARY, JUDICIAL NOTICE WAS TAKEN OF THE LOCATION OF THE NONWHITE
POPULATION IN ESTABLISHING DISTRICT LINES IN METROPOLITAN AREAS OF THE
STATE AND THE COURT'S PLAN EXPRESSLY AIMED AT GIVING "RECOGNITION TO
THE COGNIZABLE RACIAL MINORITY GROUP WHOSE GRIEVANCE LEAD (SIC) TO THIS
LITIGATION."  ID., AT 1366. 

THE COURT ENJOINED STATE OFFICIALS FROM CONDUCTING ANY ELECTIONS
UNDER THE EXISTING APPORTIONMENT STATUTES AND ORDERED THT THE 1970
ELECTIONS BE HELD IN ACCORDANCE WITH THE PLAN PREPARED BY THE COURT. 
JURISDICTION WAS RETAINED TO PASS UPON ANY FUTURE CLAIMS OF
UNCONSTITUTIONALITY WITH RESPECT TO ANY FUTURE LEGISLATIVE
APPORTIONAMENTS ADOPTED BY THE STATE.  /21/ 

APPEAL WAS TAKEN FOLLOWING THE FINAL JUDGMENT BY THE THREE-JUDGE
COURT, WE NOTED PROBABLE JURISDICTION, 397 U.S. 984 (1970), AND THE
STATE'S MOTION FOR STAY OF JUDGMENT WAS GRANTED PENDING OUR FINAL
ACTION ON THIS CASE, 396 U.S. 1055 (1970), THUS PERMITTING THE 1970
ELECTIONS TO BE HELD UNDER THE EXISTING APPORTIONMENT STATUTES DECLARED
UNCONSTITUTIONAL BY THE DISTRICT COURT.  ON JUNE 1, 1971, WE WERE
ADVISED BY THE PARTIES THAT THE INDIANA LEGISLATURE HAD PASSED, AND THE
GOVERNOR HAD SIGNED, NEW APPORTIONMENT LEGISLATION SOON TO BECOME
EFFECTIVE FOR THE 1972 ELECTIONS AND THAT THE NEW LEGISLATION PROVIDES
FOR SINGLE-MEMBER HOUSE AND SENATE DISTRICTS THROUGHOUT THE STATE,
INCLUDING MARION COUNTY. 

        II 

WITH THE 1970 ELECTIONS LONG PAST AND THE APPEARANCE OF NEW
LEGISLATION ABOLISHING MULTI-MEMBER DISTRICTS IN INDIANA, THE ISSUE OF
MOOTNESS EMERGES.  NEITHER PARTY DEEMS THE CASE MOOTED BY RECENT
EVENTS.  APPELLEES, PLAINTIFFS BELOW, URGE THAT IF THE APPEAL IS
DISMISSED AS MOOT AND THE JUDGMENT OF THE DISTRICT COURT IS VACATED, AS
IS OUR PRACTICE IN SUCH CASES, THERE WOULD BE NO OUTSTANDING JUDGMENT
INVALIDATING THE MARION COUNTY MULTI-MEMBER DISTRICT AND THAT THE NEW
APPORTIONMENT LEGISLATION WOULD BE IN CONFLICT WITH THE STATE
CONSTITUTIONAL PROVISION FORBIDDING THE DIVISION OF MARION COUNTY FOR
THE PURPOSE OF ELECTING SENATORS.  IF THE NEW SENATORIAL DISTRICTS WERE
INVALIDATED IN THE STATE COURTS IN THIS RESPECT, IT IS ARGUED THAT THE
ISSUE INVOLVED IN THE PRESENT LITIGATION WOULD SIMPLY REAPPEAR FOR
DECISION.  THE ATTORNEY GENERAL FOR THE STATE OF INDIANA, FOR THE
APPELLANT, TAKING A SOMEWHAT DIFFERENT TACK, URGES THAT THE ISSUE OF
THE MARION COUNTY MULTI-MEMBER DISTRICT IS NOT MOOT SINCE THE DISTRICT
COURT HAS RETAINED JURISDICTION TO PASS ON THE LEGALITY OF SUBSEQUENT
APPORTIONMENT STATUTES FOR THE PURPOSE, AMONG OTHERS, OF DETERMINING
WHETHER THE ALLEGED DISCRIMINATION AGAINST A COGNIZABLE MINORITY GROUP
HAS BEEN REMEDIED, AN ISSUE THAT WOULD NOT ARISE IF THE DISTRICT COURT
ERRED IN INVALIDATING MULTI-MEMBER DISTRICTS IN INDIANA. 

WE AGREE THAT THE CASE IS NOT MOOT AND THAT THE CENTRAL ISSUES
BEFORE US MUST BE DECIDED.  WE DO NOT, HOWEVER, PASS UPON THE DETAILS
OF THE PLAN ADOPTED BY THE DISTRICT COURT, SINCE THAT PLAN IN ANY EVENT
WOULD HAVE REQUIRED REVISION IN LIGHT OF THE 1970 CENSUS FIGURES. 

        III 

THE LINE OF CASES FROM GRAY V. SANDERS, 372 U.S. 368 (1963), AND
REYNOLDS V. SIMS, 377 U.S. 533 (1964), TO KIRKPATRICK V. PREISLER, 394
U.S. 526 (1969), AND WELLS V. ROCKEFELLER, 394 U.S. 542 (1969),
RECOGNIZES THAT "REPRESENTATIVE GOVERNMENT IS IN ESSENCE SELF
GOVERNMENT THROUGH THE MEDIUM OF ELECTED REPRESENTATIVES OF THE PEOPLE,
AND EACH AND EVERY CITIZEN HAS AN INALIENABLE RIGHT TO FULL AND
EFFECTIVE PARTICIPATION IN THE POLITICAL PROCESSES OF HIS STATE'S
LEGISLATIVE BODIES."  REYNOLDS V. SIMS, 377 U.S.,AT 565.  SINCE MOST
CITIZENS FIND IT POSSIBLE TO PARTICIPATE ONLY AS QUALIFIED VOTERS IN
ELECTING THEIR REPRESENTATIVES, "(FULL AND EFFECTIVE PARTICIPATION BY
ALL CITIZENS IN STATE GOVERNMENT REQUIRES THEREFORE, THAT EACH CITIZEN
HAVE AN EQUALLY EFFECTIVE VOICE IN THE ELECTION OF MEMBERS OF HIS STATE
LEGISLATURE."  IBID. HENCE, APPORTIONMENT SCHEMES "WHICH GIVE THE SAME
NUMBER OF REPRESENTATIVES TO UNEQUAL NUMBERS OF CONSTITUENTS," 377
U.S.,AT 563, UNCONSTITUTIONALLY DILUTE THE VALUE OF THE VOTES IN THE
LARGER DISTRICTS.  AND HENCE THE REQUIREMENT THAT "THE SEATS IN BOTH
HOUSES OF A BICAMERAL STATE LEGISLATURE MUST BE APPORTIONED ON A
POPULATION BASIS."  377 U.S.,AT 568. 

THE QUESTION OF THE CONSTITUTIONAL VALIDITY OF MULTI-MEMBER
DISTRICTS HAS BEEN PRESSED IN THIS COURT SINCE THE FIRST OF THE MODERN
REAPPORTIONMENT CASES.  THESE QUESTION HAVE FOCUSED NOT ON POPULATION
BASED APPORTIONMENT BUT ON THE QUALITY OF REPRESENTATION AFFORDED BY
THE MULTI-MEMBER DISTRICT AS COMPARED WITH SINGLE-MEMBER DISTRICTS.  IN
LUCAS V. COLORADO GENERAL ASSEMBLY, 377 U.S. 713 (1964), DECIDED WITH
REYNOLDS V. SIMS, WE NOTED CERTAIN UNDESIRABLE FEATURES OF THE MULTI
MEMBER DISTRICT BUT EXPRESSLY WITHHELD ANY INTIMATION "THAT
APPORTIONMENT SCHEMES WHICH PROVIDE FOR THE AT-LARGE ELECTION OF A
NUMBER OF LEGISLATORS FROM A COUNTY, OR ANY POLITICAL SUBDIVISION, ARE
CONSTITUTIONALLY DEFECTIVE."  377 U.S.,AT 731 N. 21.  SUBSEQUENTLY,
WHEN THE VALIDITY OF THE MULTI-MEMBER DISTRICT, AS SUCH, WAS SQUARELY
PRESENTED, WE HELD THAT SUCH A DISTRICT IS NOT PER SE ILLEGAL UNDER THE
EQUAL PROTECTION CLAUSE.  FORTSON V. DORSEY, 379 U.S. 433 (1965); BURNS
V. RICHARDSON, 384 U.S. 73 (1966); KILGARLIN V. HILL, 386 U.S. 120
(1967).  SEE ALSO BURNETTE V. DAVIS, 382 U.S. 42 (1965); HARRISON V.
SCHAEFER, 383 U.S. 269 (1966).  /22/  THAT VOTERS IN MULTI-MEMBER
DISTRICTS VOTE FOR AND ARE REPRESENTED BY MORE LEGISLATORS THAN VOTERS
IN SINGLE-MEMBER DISTRICTS HAS SO FAR NOT DEMONSTRATED AN INVIDIOUS
DISCRIMINATION AGAINST THE LATTER.  BUT WE HAVE DEEMED THE VALIDITY OF
MULTI-MEMBER DISTRICT SYSTEMS JUSTICIABLE, RECOGNIZING ALSO THAT THEY
MAY BE SUBJECT TO CHALLENGE WHERE THE CIRCUMSTANCES OF A PARTICULAR
CASE MAY "OPERATE TO MINIMIZE OR CANCEL OUT THE VOTING STRENGTH OF
RACIAL OR POLITICAL ELEMENTS OF THE VOTING POPULATION."  FORTSON, 379
U.S.,AT 439, AND BURNS, 384 U.S.,AT 88.  SUCH A TENDENCY, WE HAVE SAID,
IS ENHANCED WHEN THE DISTRICT IS LARGE AND ELECTS A SUBSTANTIAL
PROPORTION OF THE SEATS IN EITHER HOUSE OF A BICAMERAL LEGISLATURE, IF
IT IS MULTI-MEMBER FOR BOTH HOUSES OF THE LEGISLATURE OR IF IT LACKS
PROVISION FOR AT-LARGE CANDIDATES RUNNING FROM PARTICULAR GEOGRAPHICAL
SUBDISTRICTS, AS IN FORTSON.  BURNS, 384 U.S.,AT 88.  BUT WE HAVE
INSISTED THAT THE CHALLENGER CARRY THE BURDEN OF PROVING THAT MULTI
MEMBER DISTRICTS UNCONSTITUTIONALLY OPERATE TO DILUTE OR CANCEL THE
VOTING STRENGTH OF RACIAL OR POLITICAL ELEMENTS.  WE HAVE NOT YET
SUSTAINED SUCH AN ATTACK. 

        IV 

PLAINTIFFS LEVEL TWO QUITE DISTINCT CHALLENGES TO THE MARION COUNTY
DISTRICT.  THE FIRST CHARGE IS THAT ANY MULTI-MEMBER DISTRICT BESTOWS
ON ITS VOTERS SEVERAL UNCONSTITUTIONAL ADVANTAGES OVER VOTERS IN SINGLE
MEMBER DISTRICTS OR SMALLER MULTI-MEMBER DISTRICTS.  THE OTHER
ALLEGATION IS THAT THE MARION COUNTY DISTRICT, ON THE RECORD OF THIS
CASE, ILLEGALLY MINIMIZES AND CANCELS OUT THE VOTING POWER OF A
COGNIZABLE RACIAL MINORITY IN MARION COUNTY.  THE DISTRICT COURT
SUSTAINED THE LATTER CLAIM AND CONSIDERED THE FORMER SUFFICIENTLY
PERSUASIVE TO BE A SUBSTANTIAL FACTOR IN PRESCRIBING UNIFORM, SINGLE
MEMBER DISTRICTS AS THE BASIC SCHEME OF THE COURT'S OWN PLAN.  SEE 307
F.SUPP.,AT 1366. 

IN ASSERTING DISCRIMINATION AGAINST VOTERS OUTSIDE MARION COUNTY,
PLAINTIFFS RECOGNIZE THAT FORTSON, BURNS, AND KILGARLIN PROCEEDED ON
THE ASSUMPTION THAT THE DILUTION OF VOTING POWER SUFFERED BY A VOTER
WHO IS PLACED IN A DISTRICT 10 TIMES THE POPULATION OF ANOTHER IS CURED
BY ALLOCATING 10 LEGISLATORS TO THE LARGER DISTRICT INSTEAD OF THE ONE
ASSIGNED TO THE SMALLER DISTRICT.  PLAINTIFFS CHALLENGE THIS ASSUMPTION
AT BOTH THE VOTER AND LEGISLATOR LEVEL.  THEY DEMONSTRATE
MATHEMATICALLY THAT IN THEORY VOTING POWER DOES NOT VARY INVERSELY WITH
THE SIZE OF THE DISTRICT AND THAT TO INCREASE LEGISLATIVE SEATS IN
PROPORTION TO INCREASED POPULATION GIVES UNDUE VOTING POWER TO THE
VOTER IN THE MULTI-MEMBER DISTRICT SINCE HE HAS MORE CHANCES TO
DETERMINE ELECTION OUTCOMES THAN DOES THE VOTER IN THE SINGLE-MEMBER
DISTRICT.  THIS CONSEQUENCE OBTAINS WHOLLY ASIDE FROM THE QUALITY OR
EFFECTIVENESS OF REPRESENTATION LATER FURNISHED BY THE SUCCESSFUL
CANDIDATES.  THE DISTRICT COURT DID NOT QUARREL WITH PLAINTIFFS'
MATHEMATICS, NOR DO WE.  BUT LIKE THE DISTRICT COURT WE NOTE THAT THE
POSITION REMAINS A THEORETICAL ONE /23/  AND, AS PLAINTIFFS' WITNESS
CONCEDED, KNOWINGLY AVOIDS AND DOES "NOT TAKE INTO ACCOUNT ANY
POLITICAL OR OTHER FACTORS WHICH MIGHT AFFECT THE ACTUAL VOTING POWER
OF THE RESIDENTS, WHICH MIGHT INCLUDE PARTY AFFILIATION, RACE, PREVIOUS
VOTING CHARACTERISTICS OR ANY OTHER FACTORS WHICH GO INTO THE ENTIRE
POLITICAL VOTING SITUATION."  /24/  THE REAL-LIFE IMPACT OF MULTI
MEMBER DISTRICTS ON INDIVIDUAL VOTING POWER HAS NOT BEEN SUFFICIENTLY
DEMONSTRATED, AT LEAST ON THIS RECORD, TO WARRANT DEPARTURE FROM PRIOR
CASES. 

THE DISTRICT COURT WAS MORE IMPRESSED WITH THE OTHER BRANCH OF THE
CLAIM THAT MULTI-MEMBER DISTRICTS INHERENTLY DISCRIMINATE AGAINST OTHER
DISTRICTS.  THIS WAS THE ASSERTION THAT WHATEVER THE INDIVIDUAL VOTING
POWER OF MARION COUNTY VOTERS IN CHOOSING LEGISLATORS MAY BE, THEY
NEVERTHELESS HAVE MORE EFFECTIVE REPRESENTATION IN THE INDIANA GENERAL
ASSEMBLY FOR TWO REASONS.  FIRST, EACH VOTER IS REPRESENTED BY MORE
LEGISLATORS AND THEREFORE, IN THEORY AT LEAST, HAS MORE CHANCES TO
INFLUENCE CRITICAL LEGISLATIVE VOTES.  SECOND, SINCE MULTI-MEMBER
DELEGATIONS ARE ELECTED AT LARGE AND REPRESENT THE VOTERS OF THE ENTIRE
DISTRICT, THEY TEND TO VOTE AS A BLOC, WHICH IS TANTAMOUNT TO THE
DISTRICT HAVING ONE REPRESENTATIVE WITH SEVERAL VOTES.  /25/  THE
DISTRICT COURT DID NOT SQUARELY SUSTAIN THIS POSITION, /26/  BUT IT
APPEARS TO HAVE FOUND IT SUFFICIENTLY PERSUASIVE TO HAVE SUGGESTED
UNIFORM DISTRICTING TO THE INDIANA LEGISLATURE AND TO HAVE ELIMINATED
MULTI-MEMBER DISTRICTS IN THE COURT'S OWN PLAN REDISTRICTING THE
STATE.  SEE 307 F.SUPP.,AT 1368-1383. 

WE ARE NOT READY, HOWEVER, TO AGREE THAT MULTI-MEMBER DISTRICTS,
WHEREVER THEY EXIST, OVERREPRESENT THEIR VOTERS AS COMPARED WITH VOTERS
IN SINGLE-MEMBER DISTRICTS EVEN IF THE MULTI-MEMBER DELEGATION TENDS TO
BLOC VOTING.  THE THEORY THAT PLURAL REPRESENTATION ITSELF UNDULY
ENHANCES A DISTRICT'S POWER AND THE INFLUENCE OF ITS VOTERS REMAINS TO
BE DEMONSTRATED IN PRACTICE AND IN THE DAY-TO-DAY OPERATION OF THE
LEGISLATURE.  NEITHER THE FINDINGS OF THE TRIAL COURT NOR THE RECORD
BEFORE US SUSTAINS IT, EVEN WHERE BLOC VOTING IS POSITED. 

IN FASHIONING RELIEF, THE THREE-JUDGE COURT APPEARED TO EMBRACE THE
IDEA THAT EACH MEMBER OF A BLOC-VOTING DELEGATION HAS MORE INFLUENCE
THAN LEGISLATORS FROM A SINGLE-MEMBER DISTRICT.  BUT ITS FINDINGS OF
FACT FAIL TO DEAL WITH THE ACTUAL INFLUENCE OF MARION COUNTY'S
DELEGATION IN THE INDIANA LEGISLATURE.  NOR DID PLAINTIFFS' EVIDENCE
MAKE SUCH A SHOWING.  THAT BLOC VOTING TENDED TO OCCUR IS SUSTAINED BY
THE RECORD, AND DEFENDANTS' OWN WITNESS THOUGH IT WAS ADVANTAGEOUS FOR
MARION COUNTY'S DELEGATION TO STICK TOGETHER.  BUT NOTHING DEMONSTRATES
THAT SENATORS AND REPRESENTATIVES FROM MARION COUNTY COUNTED FOR MORE
IN THE LEGISLATURE THAN MEMBERS FROM SINGLE-MEMBER DISTRICTS OR FROM
SMALLER MULTI-MEMBER DISTRICTS.  NOR IS THERE ANYTHING IN THE COURT'S
FINDINGS INDICATING THAT WHAT MIGHT BE TRUE OF MARION COUNTY IS ALSO
TRUE OF OTHER MULTI-MEMBER DISTRICTS IN INDIANA OR IS TRUE OF MULTI
MEMBER DISTRICTS GENERALLY.  MOREOVER, MARION COUNTY WOULD HAVE NO LESS
ADVANTAGE, IF ADVANTAGE THERE IS, IF IT ELECTED FROM INDIVIDUAL
DISTRICTS AND THE ELECTED REPRESENTATIVES DEMONSTRATED THE SAME BLOC
VOTING TENDENCY, WHICH MAY ALSO DEVELOP AMONG LEGISLATORS REPRESENTING
SINGLE-MEMBER DISTRICTS WIDELY SCATTERED THROUGHOUT THE STATE.  /27/ OF
COURSE IT IS ADVANTAGEOUS TO START WITH MORE THAN ONE VOTE FOR A BILL. 
BUT NOTHING BEFORE US SHOWS OR SUGGESTS THAT ANY LEGISLATIVE SKIRMISH
AFFECTING THE STATE OF INDIANA OR MARION COUNTY IN PARTICULAR WOULD
HAVE COME OUT DIFFERENTLY HAD MARION COUNTY BEEN SUBDISTRICTED AND ITS
DELEGATION ELECTED FROM SINGLE-MEMBER DISTRICTS. 

RATHER THAN SQUARELY FINDING UNACCEPTABLE DISCRIMINATION AGAINST OUT
STATE VOTERS IN FAVOR OF MARION COUNTY VOTERS, THE TRIAL COURT STRUCK
DOWN MARION COUNTY'S MULTI-MEMBER DISTRICT BECAUSE IT FOUND THE SCHEME
WORKED INVIDIOUSLY AGAINST A SPECIFIC SEGMENT OF THE COUNTY'S VOTERS AS
COMPARED WITH OTHERS.  THE COURT IDENTIFIED AN AREA OF THE CITY AS A
GHETTO, FOUND IT PREDOMINANTLY INHABITED BY POOR NEGROES WITH
DISTINCTIVE SUBSTANTIVE-LAW INTERESTS AND THOUGHT THIS GROUP
UNCONSTITUTIONALLY UNDERREPRESENTED BECAUSE THE PROPORTION OF
LEGISLATORS WITH RESIDENCES IN THE GHETTO ELECTED FROM 1960 TO 1968 WAS
LESS THAN THE GHETTO'S PROPORTION OF THE POPULATION, LESS THAN THE
PROPORTION OF LEGISLATORS ELECTED FROM WASHINGTON TOWNSHIP, A LESS
PROPULOUS DISTRICT, AND LESS THAN THE GHETTO WOULD LIKELY HAVE ELECTED
HAD THE COUNTY CONSISTED OF SINGLE-MEMBER DISTRICTS.  /28/  WE FIND
MAJOR DEFICIENCIES IN THIS APPROACH.     FIRST, IT NEEDS NO EMPHASIS
HERE THAT THE CIVIL WAR AMENDMENTS WERE DESIGNED TO PROTECT THE CIVIL
RIGHTS OF NEGROES AND THAT THE COURTS HAVE BEEN VIGILANT IN
SCRUTINIZING SCHEMES ALLEGEDLY CONCEIVED OR OPERATED AS PURPOSEFUL
DEVICES TO FURTHER RACIAL DISCRIMINATION.  THERE HAS BEEN NO HESITATION
IN STRIKING DOWN THOSE CONTRIVANCES THAT CAN FAIRLY BE SAID TO INFRINGE
ON FOURTEENTH AMENDMENT RIGHTS.  SIMS V. BAGGETT, 247 F.SUPP.  96 (MD
ALA. 1965); SMITH V. PARIS, 257 F.SUPP.  901 (MD ALA. 1966), AFF'D, 386
F.2D 979 (CA5 1967); AND SEE GOMILLION V. LIGHTFOOT, 364 U.S. 339
(1960).  SEE ALSO ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544
(1969).  BUT THERE IS NO SUGGESTION HERE THAT MARION COUNTY'S MULTI
MEMBER DISTRICT, OR SIMILAR DISTRICTS THROUGHOUT THE STATE, WERE
CONCEIVED OR OPERATED AS PURPOSEFUL DEVICES TO FURTHER RACIAL OR
ECONOMIC DISCRIMINATION.  AS PLAINTIFFS CONCEDE, "THERE WAS NO BASIS
FOR ASSERTING THAT THE LEGISLATIVE DISTRICTS IN INDIANA WERE DESIGNED
TO DILUTE THE VOTE OF MINORITIES."  BRIEF OF APPELLEES (PLAINTIFFS) 28
29.  ACCORDINGLY, THE CIRCUMSTANCES HERE LIE OUTSIDE THE REACH OF
DECISIONS SUCH AS SIMS V. BAGGETT, SUPRA. 

NOR DOES THE FACT THAT THE NUMBER OF GHETTO RESIDENTS WHO WERE
LEGISLATORS WAS NOT IN PROPORTION TO GHETTO POPULATION SATISFACTORILY
PROVE INVIDIOUS DISCRIMINATION ABSENT EVIDENCE AND FINDINGS THAT GHETTO
RESIDENTS HAD LESS OPPORTUNITY THAN DID OTHER MARION COUNTY RESIDENTS
TO PARTICIPATE IN THE POLITICAL PROCESSES AND TO ELECT LEGISLATORS OF
THEIR CHOICE.  WE HAVE DISCOVERED NOTHING IN THE RECORD OR IN THE
COURT'S FINDINGS INDICATING THAT POOR NEGROES WERE NOT ALLOWED TO
REGISTER OR VOTE, TO CHOOSE THE POLITICAL PARTY THEY DESIRED TO
SUPPORT, TO PARTICIPATE IN ITS AFFAIRS OR TO BE EQUALLY REPRESENTED ON
THOSE OCCASIONS WHEN LEGISLATIVE CANDIDATES WERE CHOSEN.  NOR DID THE
EVIDENCE PURPORT TO SHOW OR THE COURT FIND THAT INHABITANTS OF THE
GHETTO WERE REGULARLY EXCLUDED FROM THE SLATES OF BOTH MAJOR PARTIES,
THUS DENYING THEM THE CHANCE OF OCCUPYING LEGISLATIVE SEATS.  /29/  IT
APPEARS REASONABLY CLEAR THAT THE REPUBLICAN PARTY WON FOUR OF THE FIVE
ELECTIONS FROM 1960 TO 1968, THAT CENTER TOWNSHIP GHETTO VOTED HEAVILY
DEMOCRATIC AND THAT GHETTO VOTES WERE CRITICAL TO DEMOCRATIC PARTY
SUCCESS.  ALTHOUGH WE CANNOT BE SURE OF THE FACTS SINCE THE COURT
IGNORED THE QUESTION, IT SEEMS UNLIKELY THAT THE DEMOCRATIC PARTY COULD
AFFORD TO OVERLOOK THE GHETTO IN SLATING ITS CANDIDATES.  /30/
CLEARLY, IN 1964-- THE ONE ELECTION THAT THE DEOMCRATS WON-- THE PARTY
SLATED AND ELECTED ONE SENATOR AND ONE REPRESENTATIVE FROM CENTER
TOWNSHIP GHETTO AS WELL AS ONE SENATOR AND FOUR REPRESENTATIVES FROM
OTHER PARTS OF CENTER TOWNSHIP AND TWO REPRESENTATIVES FROM CENSUS
TRACT 220, WHICH WAS WITHIN THE GHETTO AREA DESCRIBED BY PLAINTIFF. 
/31/  NOR IS THERE ANY INDICATION THAT THE PARTY FAILED TO SLATE
CANDIDATES SATISFACTORY TO THE GHETTO IN OTHER YEARS.  ABSENT EVIDENCE
OR FINDINGS WE ARE NOT SURE, BUT IT SEEMS REASONABLE TO INFER THAT HAD
THE DEMOCRATS WON ALL OF THE ELECTIONS OR EVEN MOST OF THEM, THE GHETTO
WOULD HAVE HAD NO JUSTIFIABLE COMPLAINTS ABOUT REPRESENTATION.  THE
FACT IS, HOWEVER, THAT FOUR OF THE FIVE ELECTIONS WERE WON BY
REPUBLICANS, WHICH WAS NOT THE PARTY OF THE GHETTO AND WHICH WOULD NOT
ALWAYS SLATE GHETTO CANDIDATES-- ALTHOUGH IN 1962 IT NOMINATED AND
ELECTED ONE REPRESENTATIVE AND IN 1968 TWO REPRESENTATIVES FROM THAT
AREA.  /32/  IF THIS IS THE PROPER VIEW OF THIS CASE, THE FAILURE OF
THE GHETTO TO HAVE LEGISLATIVE SEATS IN PROPORTION TO ITS POPULATION
EMERGES MORE AS A FUNCTION OF LOSING ELECTIONS THAN OF BUILT-IN BIAS
AGAINST POOR NEGROES.  THE VOTING POWER OF GHETTO RESIDENTS MAY HAVE
BEEN "CANCELLED OUT" AS THE DISTRICT COURT HELD, BUT THIS SEEMS A MERE
EUPHEMISM FOR POLITICAL DEFEAT AT THE POLLS. 

ON THE RECORD BEFORE US PLAINTIFFS' POSITION COMES TO THIS:  THAT
ALTHOUGH THEY HAVE EQUAL OPPORTUNITY TO PARTICIPATE IN AND INFLUENCE
THE SELECTION OF CANDIDATES AND LEGISLATORS, AND ALTHOUGH THE GHETTO
VOTES PREDOMINANTLY DEMOCRATIC AND THAT PARTY SLATES CANDIDATES
SATISFACTORY TO THE GHETTO, INVIDIOUS DISCRIMINATION NEVERTHELESS
RESULTS WHEN THE GHETTO, ALONG WITH ALL OTHER DEMOCRATS, SUFFERS THE
DISASTER OF LOSING TOO MANY ELECTIONS.  BUT TYPICAL AMERICAN
LEGISLATIVE ELECTIONS ARE DISTRICT-ORIENTED, HEAD-ON RACES BETWEEN
CANDIDATES OF TWO OR MORE PARTIES.  AS OUR SYSTEM HAS IT, ONE CANDIDATE
WINS, THE OTHERS LOSE.  ARGUABLY THE LOSING CANDIDATES' SUPPORTERS ARE
WITHOUT REPRESENTATION SINCE THE MEN THEY VOTED FOR HAVE BEEN DEFEATED;
ARGUABLY THEY HAVE BEEN DENIED EQUAL PROTECTION OF THE LAWS SINCE THEY
HAVE NO LEGISLATIVE VOICE OF THEIR OWN.  THIS IS TRUE OF BOTH SINGLE
MEMBER AND MULTI-MEMBER DISTRICTS.  BUT WE HAVE NOT YET DEEMED IT A
DENIAL OF EQUAL PROTECTION TO DENY LEGISLATIVE SEATS TO LOSING
CANDIDATES, EVEN IN THOSE SO-CALLED "SAFE" DISTRICTS WHERE THE SAME
PARTY WINS YEAR AFTER YEAR. 

PLAINLY, THE DISTRICT COURT SAW NOTHING UNLAWFUL ABOUT THE IMPACT OF
TYPICAL SINGLE-MEMBER DISTRICT ELECTIONS.  THE COURT'S OWN PLAN CREATED
DISTRICTS GIVING BOTH REPUBLICANS AND DEMOCRATS SEVERAL PREDICTABLY
SAFE GENERAL ASSEMBLY SEATS, WITH POLITICAL, RACIAL OR ECONOMIC
MINORITIES IN THOSE DISTRICTS BEING "UNREPRESENTED" YEAR AFTER YEAR. 
BUT SIMILAR CONSEQUENCES FLOWING FROM MARION COUNTY MULTI-MEMBER
DISTRICT ELECTIONS WERE VIEWED DIFFERENTLY.  CONCEDING THAT ALL MARION
COUNTY VOTERS COULD FAIRLY BE SAID TO BE REPRESENTED BY THE ENTIRE
DELEGATION, JUST AS IS EACH VOTER IN A SINGLE-MEMBER DISTRICT BY THE
WINNING CANDIDATE, THE DISTRICT COURT THOUGHT THE GHETTO VOTERS' CLAIM
TO THE PARTIAL ALLEGIANCE OF EIGHT SENATORS AND 15 REPRESENTATIVES WAS
NOT EQUIVALENT TO THE UNDIVIDED ALLEGIANCE OF ONE SENATOR AND TWO
REPRESENTATIVES; NOR WAS THE GHETTO VOTERS' CHANCE OF INFLUENCING THE
ELECTION OF AN ENTIRE SLATE AS SIGNIFICANT AS THE GUARANTEE OF ONE
GHETTO SENATOR AND TWO GHETTO REPRESENTATIVES.  /33/  AS THE TRIAL
COURT SAW IT, GHETTO VOTERS COULD NOT BE ADEQUATELY AND EQUALLY
REPRESENTED UNLESS SOME OF MARION COUNTY'S GENERAL ASSEMBLY SEATS WERE
RESERVED FOR GHETTO RESIDENTS SERVING THE INTERESTS OF THE GHETTO
MAJORITY.  BUT ARE POOR NEGROES OF THE GHETTO ANY MORE UNDERREPRESENTED
THAN POOR GHETTO WHITES WHO ALSO VOTED DEMOCRATIC AND LOST, OR ANY MORE
DISCRIMINATED AGAINST THAN OTHER INTEREST GROUPS OR VOTERS IN MARION
COUNTY WITH ALLEGIANCE TO THE DEMOCRATIC PARTY, OR, CONVERSELY, ANY
LESS REPRESENTED THAN REPULICAN AREAS OR VOTERS IN YEARS OF REPUBLICAN
DEFEAT?  WE THINK NOT.  THE MERE FACT THAT ONE INTEREST GROUP OR
ANOTHER CONCERNED WITH THE OUTCOME OF MARION COUNTY ELECTIONS HAS FOUND
ITSELF OUTVOTED AND WITHOUT LEGISLATIVE SEATS OF ITS OWN PROVIDES NO
BASIS FOR INVOKING CONSTITUTIONAL REMEDIES WHERE, AS HERE, THERE IS NO
INDICATION THAT THIS SEGMENT OF THE POPULATION IS BEING DENIED ACCESS
TO THE POLITICAL SYSTEM.  THERE IS ANOTHER GAP IN THE TRIAL COURT'S
REASONING.  AS NOTED BY THE COURT, THE INTEREST OF GHETTO RESIDENTS IN
CERTAIN ISSUES DID NOT MEASURABLY DIFFER FROM THAT OF OTHER VOTERS. 
PRESUMABLY IN THESE RESPECTS MARION COUNTY'S ASSEMBLYMEN WERE
SATISFACTORILY REPRESENTATIVE OF THE GHETTO.  AS TO OTHER MATTERS,
GHETTO RESIDENTS HAD UNIQUE INTERESTS NOT NECESSARILY SHARED BY OTHERS
IN THE COMMUNITY AND ON THESE ISSUES THE GHETTO RESIDENTS WERE
INVIDIOUSLY UNDERREPRESENTED ABSENT THEIR OWN LEGISLATIVE VOICE TO
FURTHER THEIR OWN POLICY VIEWS. 

PART OF THE DIFFICULTY WITH THIS CONCLUSION IS THAT THE FINDINGS
FAILED TO SUPPORT IT.  PLAINTIFFS' EVIDENCE PURPORTED TO SHOW DISREGARD
FOR THE GHETTO'S DISTINCTIVE INTERESTS; DEFENDANTS CLAIMED QUITE THE
CONTRARY.  WE SEE NOTHING IN THE FINDINGS OF THE DISTRICT COURT
INDICATING RECURRING POOR PERFORMANCE BY MARION COUNTY'S DELEGATION
WITH RESPECT TO CENTER TOWNSHIP GHETTO, NOTHING TO SHOW WHAT THE
GHETTO'S INTERESTS WERE IN PARTICULAR LEGISLATIVE SITUATIONS AND
NOTHING TO INDICATE THAT THE OUTCOME WOULD HAVE BEEN ANY DIFFERENT IF
THE 23 ASSEMBLYMEN HAD BEEN CHOSEN FROM SINGLE-MEMBER DISTRICTS. 
MOREOVER, EVEN ASSUMING BLOC VOTING BY THE DELEGATION CONTRARY TO THE
WISHES OF THE GHETTO MAJORITY, IT WOULD NOT FOLLOW THAT THE FOURTEENTH
AMENDMENT HAD BEEN VIOLATED UNLESS IT IS INVIDIOUSLY DISCRIMINATORY FOR
A COUNTY TO ELECT ITS DELEGATION BY MAJORITY VOTE BASED ON PARTY OR
CANDIDATE PLATFORMS AND SO TO SOME EXTENT PREDETERMINE LEGISLATIVE
VOTES ON PARTICULAR ISSUES.  SUCH TENDENCIES ARE INHERENT IN GOVERNMENT
BY ELECTED REPRESENTATIVES; AND SURELY ELECTIONS IN SINGLE-MEMBER
DISTRICTS VISIT PRECISELY THE SAME CONSEQUENCES ON THE SUPPORTERS OF
LOSING CANDIDATES WHOSE VIEWS ARE REJECTED AT THE POLLS. 

        V 

THE DISTRICT COURT'S HOLDING, ALTHOUGH ON THE FACTS OF THIS CASE
LIMITED TO GUARANTEEING ONE RACIAL GROUP REPRESENTATION, IS NOT EASILY
CONTAINED.  IT IS EXPRESSIVE OF THE MORE GENERAL PROPOSITION THAT ANY
GROUP WITH DISTINCTIVE INTERESTS MUST BE REPRESENTED IN LEGISLATIVE
HALLS IF IT IS NUMEROUS ENOUGH TO COMMAND AT LEAST ONE SEAT AND
REPRESENTS A MAJORITY LIVING IN AN AREA SUFFICIENTLY COMPACT TO
CONSTITUTE A SINGLE-MEMBER DISTRICT.  /34/  THIS APPROACH WOULD MAKE IT
DIFFICULT TO REJECT CLAIMS OF DEMOCRATS, REPUBLICANS, OR MEMBERS OF ANY
POLITICAL ORGANIZATION IN MARION COUNTY WHO LIVE IN WHAT WOULD BE SAFE
DISTRICTS IN A SINGLE SINGLE-MEMBER DISTRICT SYSTEM BUT WHO IN ONE YEAR
OR ANOTHER, OR YEAR AFTER YEAR, ARE SUBMERGED IN A ONE-SIDED MULTI
MEMBER DISTRICT VOTE.  /35/  THERE ARE ALSO UNION ORIENTED WORKERS, THE
UNIVERSITY COMMUNITY, RELIGIOUS OR ETHNIC GROUPS OCCUPYING IDENTIFIABLE
AREAS OF OUR HETEROGENEOUS CITIES AND URBAN AREAS.  INDEED, IT WOULD BE
DIFFICULT FOR A GREAT MANY, IF NOT MOST, MULTI-MEMBER DISTRICTS TO
SURVIVE ANALYSIS UNDER THE DISTRICT COURT'S VIEW UNLESS COMBINED WITH
SOME VOTING ARRANGEMENT SUCH AS PROPORTIONAL REPRESENTATION OR
CUMULATIVE VOTING AIMED AT PROVIDING REPRESENTATION FOR MINORITY
PARTIES OR INTERESTS.  /36/  AT THE VERY LEAST, AFFIRMANCE OF THE
DISTRICT COURT WOULD SPAWN ENDLESS LITIGATION CONCERNING THE MULTI
MEMBER DISTRICT SYSTEMS NOW WIDELY EMPLOYED IN THIS COUNTRY.  /37/ 

WE ARE NOT INSENSITIVE TO THE OBJECTIONS LONG VOICED TO MULTI-MEMBER
DISTRICT PLANS.  /38/  ALTHOUGH NOT AS PREVALENT AS THEY WERE IN OUR
EARLY HISTORY, THEY HAVE BEEN WITH US SINCE COLONIAL TIMES AND WERE
MUCH IN EVIDENCE BOTH BEFORE AND AFTER THE ADOPTION OF THE FOURTEENTH
AMENDMENT.  /39/  CRITICISM IS ROOTED IN THEIR WINNER-TAKE-ALL ASPECTS,
THEIR TENDENCY TO SUBMERGE MINORITIES AND TO OVERREPRESENT THE WINNING
PARTY AS COMPARED WITH THE PARTY'S STATEWIDE ELECTORAL POSITION, A
GENERAL PREFERENCE FOR LEGISLATURES REFLECTING COMMUNITY INTERESTS AS
CLOSELY AS POSSIBLE AND DISENCHANTMENT WITH POLITICAL PARTIES AND
ELECTIONS AS DEVICES TO SETTLE POLICY DIFFERENCES BETWEEN CONTENDING
INTERESTS.  THE CHANCE OF WINNING OR SIGNIFICANTLY INFLUENCING
INTRAPARTY FIGHTS AND ISSUE-ORIENTED ELECTIONS HAS SEEMED TO SOME
INADEQUATE PROTECTION TO MINORITIES, POLITICAL, RACIAL, OR ECONOMIC;
RATHER, THEIR VOICE, IT IS SAID, SHOULD ALSO BE HEARD IN THE
LEGISLATIVE FORUM WHERE PUBLIC POLICY IS FINALLY FASHIONED.  IN OUR
VIEW, HOWEVER, EXPERIENCE AND INSIGHT HAVE NOT YET DEMONSTRATED THAT
MULTI-MEMBER DISTRICTS ARE INHERENTLY INVIDIOUS AND VIOLATIVE OF THE
FOURTEENTH AMENDMENT.  SURELY THE FINDINGS OF THE DISTRICT COURT DO NOT
DEMONSTRATE IT.  MOREOVER, IF THE PROBLEMS OF MULTI-MEMBER DISTRICTS
ARE UNBEARABLE OR EVEN UNCONSTITUTIONAL IS IS NOT AT ALL CLEAR THAT THE
REMEDY IS A SINGLE-MEMBER DISTRICT SYSTEM WITH ITS LINES CAREFULLY
DRAWN TO ENSURE REPRESENTATION TO SIZABLE RACIAL, ETHNIC, ECONOMIC, OR
RELIGIOUS GROUPS AND WITH ITS OWN CAPACITY FOR OVERREPRESENTING AND
UNDERREPRESENTING PARTIES AND INTERESTS AND EVEN FOR PERMITTING A
MINORITY OF THE VOTERS TO CONTROL THE LEGISLATURE AND GOVERNMENT OF A
STATE.  THE SHORT OF IT IS THAT WE ARE UNPREPARED TO HOLD THAT DISTRICT
BASED ELECTIONS DECIDED BY PLURALITY VOTE ARE UNCONSTITUTIONAL IN
EITHER SINGLE- OR MULTI-MEMBER DISTRICTS SIMPLY BECAUSE THE SUPPORTERS
OF LOSING CANDIDATES HAVE NO LEGISLATIVE SEATS ASSIGNED TO THEM.  AS
PRESENTLY ADVISED WE HOLD THAT THE DISTRICT COURT MISCONCEIVED THE
EQUAL PROTECTION CLAUSE IN APPLYING IT TO INVALIDATE THE MARION COUNTY
MULTI-MEMBER DISTRICT. 

VI 

EVEN IF THE DISTRICT COURT WAS CORRECT IN FINDING UNCONSTITUTIONAL
DISCRIMINATION AGAINST POOR INHABITANTS OF THE GHETTO, IT DID NOT
EXPLAIN WHY IT WAS CONSTITUTIONALLY COMPELLED TO DISESTABLISH THE
ENTIRE COUNTY DISTRICT AND TO INTRUDE UPON STATE POLICY ANY MORE THAN
NECESSARY TO ENSURE REPRESENTATION OF GHETTO INTERESTS.  THE COURT
ENTERED JUDGMENT WITHOUT EXPRESSLY PUTTING ASIDE ON SUPPORTABLE GROUNDS
THE ALTERNATIVE OF CREATING SINGLE-MEMBER DISTRICTS IN THE GHETTO AND
LEAVING THE DISTRICT OTHERWISE INTACT, AS WELL AS THE POSSIBILITY THAT
THE FOURTEENTH AMENDMENT COULD BE SATISFIED BY A SIMPLE REQUIREMENT
THAT SOME OF THE AT-LARGE CANDIDATES EACH YEAR MUST RESIDE IN THE
GHETTO.  CF. FORTSON V. DORSEY, SUPRA. 

WE ARE LIKEWISE AT A LOSS TO UNDERSTAND HOW ON THE COURT'S OWN
FINDINGS OF FACT AND CONCLUSIONS OF LAW IT WAS JUSTIFIED IN ELIMINATING
EVERY MULTI-MEMBER DISTRICT IN THE STATE OF INDIANA.  IT DID NOT
FORTHRIGHTLY SUSTAIN THE THEORY THAT MULTI-MEMBER DISTRICTS ALWAYS
OVERREPRESENT THEIR VOTERS TO THE INVIDIOUS DETRIMENT OF SINGLE-MEMBER
RESIDENTS.  NOR DID IT EXAMINE ANY MULTI-MEMBER DISTRICT ASIDE FROM
MARION COUNTY FOR POSSIBL INTRADISTRICT DISCRIMINATION.     THE
REMEDIAL POWERS OF AN EQUITY COURT MUST BE ADEQUATE TO THE TASK, BUT
THEY ARE NOT UNLIMITED.  HERE THE DISTRICT COUR ERRED IN SO BROADLY
BRUSHING ASIDE STATE APPORTIONMENT POLICY WITHOUT SOLID CONSTITUTIONAL
OR EQUITABLE GROUNDS FOR DOING SO.

        VII 

AT THE SAME TIME, HOWEVER, WE REJECT DEFENDANT'S SUGGESTION THAT THE
COURT WAS WRONG IN ORDERING STATEWIDE REAPPORTIONMENT.  AFTER
DETERMINING THAT MARION COUNTY REQUIRED REAPPORTIONMENT, THE COURT
CONCLUDED THAT "IT BECOMES CLEAR BEYOND QUESTION THAT THE EVIDENCE
ADDUCED IN THIS CASE AND THE ADDITIONAL APPORTIONMENT REQUIREMENTS SET
FORTH BY THE SUPREME COURT CALL FOR A REDISTRICTING OF THE ENTIRE STATE
AS TO BOTH HOUSES OF THE GENERAL ASSEMBLY."  305 F.SUPP.,AT 1391.  THIS
EVIDENCE, BASED ON 1960 CENSUS FIGURES, SHOWED THAT SENATE DISTRICT 20,
WITH ONE SENATOR FOR 80,496, WAS OVERREPRESENTED BY 13.68% WHILE
DISTRICT 5, WITH ONE SENATOR FOR 106,790, WAS UNDERREPRESENTED BY
14.52%, FOR A TOTAL VARIANCE OF 28.20% AND A RATIO BETWEEN THE LARGEST
AND SMALLEST DISTRICTS OF 1.327 TO 1.  THE HOUSE FIGURES WERE SIMILAR. 
THE VARIATION RANGED FROM ONE REPRESENTATIVE FOR 41,449 IN DISTRICT 39
TO ONE FOR 53,003 IN DISTRICT 35, FOR A VARIANCE OF 24.78% AND A RATIO
OF 1.279 TO 1.  /40/  THESE VARIATIONS WERE IN EXCESS OF, OR VERY
NEARLY EQUAL TO, THE VARIATION OF 25.65% AND THE RATIO OF 1.30 TO 1
WHICH WE HELD EXCESSIVE FOR STATE LEGISLATURES /41/  IN SWANN V. ADAMS,
385 U.S. 440 (1967).  EVEN WITH THIS CONVINCING SHOWING OF
MALAPPORTIONMENT, THE COURT REFRAINED FROM ACTION IN ORDER TO ALLOW THE
INDIANA LEGISLATURE TO CALL A SPECIAL SESSION FOR THE PURPOSE OF
REDISTRICTING.  WHEN THE LEGISLATURE IGNORED THE COURT'S FINDINGS AND
SUGGESTION, IT WAS NOT IMPROPER FOR THE COURT TO ORDER STATEWIDE
REDISTRICTING, AS DISTRICT COURTS HAVE DONE FROM THE TIME REYNOLDS V.
SIMS, 377 U.S. 533 (1964), AND ITS COMPANION CASES WERE DECIDED.  /42/
AND SEE MARYLAND COMMITTEE FOR FAIR REPRESENTATION V. TAWES, 377 U.S.
656, 673 (1964). 

NOR CAN WE ACCEPT DEFENDANT'S ARGUMENT THAT THE STATUTORY PLAN WAS
BEYOND ATTACK BECAUSE THE DISTRICT COURT HAD HELD IN 1965 THAT AT THAT
TIME THE PLAN MET THE "SUBSTANTIAL EQUALITY" TEST OF REYNOLDS.  STOUT
V. BOTTORFF, 249 F.SUPP.  488 (SD IND. 1965).  DEFENDANT DOES NOT ARGUE
THAT THE 1969 VARIANCES WERE ACCEPTABLE UNDER THE REYNOLDS TEST, WHICH
HAS BEEN CONSIDERABLY REFINED SINCE THAT DECISION, SEE SWANN V. ADAMS,
SUPRA.  RATHER, HE CONTENDS THAT BECAUSE REYNOLDS INDICATED THAT
DECENNIAL REAPPORTIONMENT WOULD BE A "RATIONAL APPROACH" TO THE
PROBLEM, A STATE CANNOT BE COMPELLED TO REAPPORTION ITSELF MORE THAN
ONCE IN A 10-YEAR PERIOD.  SUCH A READING MISCONSTRUES THE THRUST OF
REYNOLDS IN THIS RESPECT.  DECENNIAL REAPPORTIONMENT WAS SUGGESTED AS A
PRESUMPTIVELY RATIONAL METHOD TO AVOID "DAILY, MONTHLY, ANNUAL OR
BIENNIAL REAPPORTIONMENT" AS POPULATION SHIFTED THROUGHOUT THE STATE. 
/43/  HERE, THE DISTRICT COURT DID NOT ORDER REAPPORTIONMENT AS A
RESULT OF POPULATION SHIFTS SINCE THE 1965 STOUT DECISION, BUT ONLY
BECAUSE THE DISPARITIES AMONG DISTRICTS WHICH WERE THOUGH TO BE
PERMISSIBLE AT THE TIME OF THAT DECISION HAD BEEN SHOWN BY INTERVENING
DECISIONS OF THIS COURT TO BE EXCESSIVE. 

WE THEREFORE REVERSE THE JUDGMENT OF THE DISTRICT COURT AND REMAND
THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  AS LATER INDICATED, SHORTLY BEFORE ANNOUNCEMENT OF THIS
OPINION, THE COURT WAS INFORMED THAT THE STATUTES AT ISSUE HERE WILL
SOON BE SUPERSEDED BY NEW APPORTIONMENT LEGISLATION RECENTLY ADOPTED BY
THE INDIANA LEGISLATURE AND SIGNED BY THE GOVERNOR.  THAT LEGISLATION
PROVIDES FOR SINGLE-MEMBER DISTRICTS THROUGHOUT THE STATE INCLUDING
MARION COUNTY.  FOR THE REASONS STATED BELOW THE CONTROVERSY IS NOT
MOOT, AND, AS WILL BE EVIDENT, THIS OPINION PROCEEDS AS THOUGH THE
STATE STATUTES BEFORE US REMAIN UNDISTURBED BY NEW LEGISLATION. 

/2/  THE PROVISIONS ATTACKED, CONTAINED IN ACTS 1965 (2D SPEC.
SESS.), C. 5, SEC. 3, AND C. 4, SEC. 3, AND APPEARING IN IND. ANN.
STAT. SECS. 34-102 AND 340-104 (1969) WERE AS FOLLOWS: 

"34-102.  APPORTIONMENT OF REPRESENTATIVES.-- REPRESENTATIVES SHALL
BE ELECTED FROM DISTRICTS COMPRISED OF ONE (1) OR MORE COUNTIES AND
HAVING ONE (1) OR MORE REPRESENTATIVES, AS FOLLOWS:  . . . TWENTY-SIXTH
DISTRICT MARION COUNTY:  FIFTEEN (15) REPRESENTATIVES . . . ." 

"34-104.  APPORTIONMENT OF SENATORS.-- SENATORS SHALL BE ELECTED
FROM DISTRICTS COMPRISED OF ONE OR MORE COUNTIES AND HAVING ONE OR MORE
SENATORS, AS FOLLOWS:  . . . NINETEENTH DISTRICT-- MARION COUNTY:
EIGHT (8) SENATORS, TWO (2) TO BE ELECTED IN 1966." 

THE DISTRICT COURT DENIED PLAINTIFFS' MOTION TO HAVE THE SUIT
DECLARED A CLASS ACTION UNDER FED. RULE CIV. PROC. 23(B).  305 F.SUPP. 
1359, 1363 (SD IND. 1969).  SEE N. 17, INFRA. 

/3 / PLAINTIFFS IN BE TRIAL COURT ARE APPELLEES HERE AND DEFENDANT
WHITCOMB IS THE APPELLANT.  WE SHALL REFER TO THE PARTIES IN THIS
OPINION AS THEY STOOD IN THE TRIAL COURT. 

/4/  WALKER ALSO ALLEGED THAT "IN BOTH LAKE AND MARION COUNTY,
INDIANA THERE ARE A SUFFICIENT NUMBER OF NEGRO (SIC) VOTERS AND
INHABITANTS FOR A BLOC VOTE BY THE SAID INHABITANTS TO CHANGE THE
RESULT OF ANY ELECTION RECENTLY HELD." 

/5/  THE MATHEMATICAL BASIS FOR THE ASSERTION WAS SET OUT IN DETAIL
IN THE COMPLAINT.  SEE ALSO N. 23, INFRA.  IT WAS ALSO ALLEGED THAT
"(BOTH MARION COUNTY . . . AND LAKE COUNTY . . . ARE THE SOLE MATTER
FOR CONSIDERATION BEFORE TWO SEPARATE STATE LEGISLATIVE COMMITTEES, ONE
DIRECTED TO THE AFFAIRS OF EACH COUNTY.  THE LAWS ENACTED . . . WHICH
DIRECTLY EFFECT (SIC) MARION OR LAKE COUNTY TYPICALLY APPLY TO ONLY ONE
COUNTY OR THE OTHER."  APP. 15. 

/6/  PLAINTIFF MARILYN HOTZ, A REPUBLICAN AND A RESIDENT OF WHAT SHE
DESCRIBED AS THE WHITE SUBURBAN BELT OF MARION COUNTY LYING OUTSIDE THE
CITY OF INDIANAPOLIS, ALLEGED THAT MALAPPORTIONMENT OF PRECINCTS IN
PARTY ORGANIZATION TOGETHER WITH MULTI-MEMBER DISTRICTING INVIDIOUSLY
DILUTED HER VOTE. 

PLAINTIFF ROWLAND ALLAN (SPELLED "ALLEN" IN THE DISTRICT COURT'S
OPINION), AN INDEPENDENT VOTER, ALLEGED THAT MULTI-MEMBER DISTRICTING
DEPRIVED HIM OF ANY CHANCE TO MAKE MEANINGFUL JUDGMENTS ON THE MERITS
OF INDIVIDUAL CANDIDATES BECAUSE HE WAS CONFRONTED WITH A LIST OF 23
CANDIDATES OF EACH PARTY. 

/7/  IN FINAL ARGUMENTS AND PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW PLAINTIFFS URGED THAT THE CENTER TOWNSHIP GHETTO WAS
LARGELY INHABITED BY NEGROES WHO HAD DISTINCTIVE INTERESTS AND WHOSE
BLOC VOTING POTENTIAL WAS CANCELED OUT BY OPPOSING INTEREST GROUPS IN
THE AT-LARGE ELECTIONS HELD IN MARION COUNTY'S MULTI-MEMBER DISTRICT,
THAT THE FEW NEGRO LEGISLATORS, INCLUDING THE THREE THEN SERVING THE
GENERAL ASSEMBLY FROM MARION COUNTY, WERE CHOSEN BY WHITE VOTERS AND
WERE UNREPRESENTATIVE OF GHETTO NEGROES, AND THAT NEGROES SHOULD BE
GIVEN THE POWER AND OPPORTUNITY TO CHOOSE THEIR OWN ASSEMBLYMEN.  IT
WAS ALSO URGED THAT THE POWER OF POLITICAL AS WELL AS RACIAL ELEMENTS
WAS CANCELED OUT IN THAT IN EVERY ASSEMBLY ELECTION SINCE 1922, ONE
PARTY OR THE OTHER HAD WON ALL THE SEATS WITH TWO MINOR EXCEPTIONS;
HENCE MANY VOTERS, IN NUMBERS LARGE ENOUGH AND GEOGRAPHICALLY SO
LOCATED AS TO COMMAND CONTROL OVER ONE OR MORE GENERAL ASSEMBLY SEATS
IF MARION COUNTY WERE SUBDISTRICTED, WERE WHOLLY WITHOUT REPRESENTATION
WHICHEVER WAY AN ASSEMBLY ELECTION TURNED OUT. 

THE DEFENDANTS ARGUED THAT MARION COUNTY'S PROBLEMS WERE COUNTYWIDE
AND THAT ITS DELEGATION COULD BETTER REPRESENT THE VARIOUS INTERESTS IN
THE COUNTY IF ELECTED AT LARGE AND RESPONSIBLE TO THE COUNTY AS A WHOLE
RATHER THAN BEING ELECTED IN SINGLE-MEMBER DISTRICTS AND THUS
FRAGMENTED BY PAROCHIAL INTERESTS AND JEALOUSIES.  THEY ALSO URGED THAT
THE 1960 CENSUS FIGURES WERE AN UNRELIABLE BASIS FOR REDISTRICTING
MARION COUNTY AND OPPOSED THE COURT'S SUGGESTION THAT THE APPORTIONMENT
OF THE WHOLE STATE WAS AN ISSUE PROPERLY BEFORE THE COURT ON THE
PLEADINGS AND THE EVIDENCE. 

/8/  A GHETTO WAS DEFINED AS A RESIDENTIAL AREA WITH A HIGHER
DENSITY OF POPULATION AND GREATER PROPORTION OF SUBSTANDARD HOUSING
THAN IN THE OVERALL METROPOLITAN AREA AND INHABITED PRIMARILY BY RACIAL
OR OTHER MINORITY GROUPS WITH LOWER THAN AVERAGE SOCIOECONOMIC STATUS
AND WHOSE RESIDENCE IN THE AREA IS OFTEN THE RESULT OF A SOCIAL, LEGAL,
OR ECONOMIC RESTRICTION OR CUSTOM.  305 F.SUPP.,AT 1373. 

/9/  THE COURT'S GHETTO AREA WAS NOT CONGRUENT WITH THAT ALLEGED IN
THE COMPLAINT.  IT INCLUDED FIVE CENSUS TRACTS AND PARTS OF FOUR OTHERS
NOT WITHIN THE GHETTO AREA ALLEGED IN THE COMPLAINT, BUT IT OMITTED
CENSUS TRACT 220 WHICH THE COMPLAINT HAD INCLUDED.  305 F.SUPP.,AT 1379
1381.  THAT DISTRICT, WHICH WAS CONTIGUOUS TO BOTH TRACT 211 AND THE
GHETTO AREA, WAS INHABITED PRIMARILY BY NEGROES BUT WAS FOUND TO BE A
MIDDLE CLASS DISTRICT DIFFERING SUBSTANTIALLY IN IN CRITICAL ELEMENTS
FROM THE REMAINDER OF THE GHETTO.  THE COURT ALSO MADE IT UNMISTAKABLY
CLEAR THAT ITS GHETTO AREA "DOES NOT REPRESENT THE ENTIRE GHETTOIZED
PORTION OF CENTER TOWNSHIP BUT ONLY THE PORTION WHICH IS PREDOMINANTLY
INHABITED BY NEGROES AND WHICH WAS ALLEGED IN THE COMPLAINT."  305
F.SUPP.,AT 1380 1380-1381.  ALTHOUGH CENSUS TRACT 563, A TRACT
"RANDOMLY SELECTED TO TYPIFY TRACTS . . . WITHIN THE PREDOMINANTLY
WHITE GHETTO PORTION OF CENTER TOWNSHIP," ID., AT 1374, WAS SHOWN TO
HAVE CHARACTERISTICS VERY SIMILAR TO THE TRACTS IN THE COURT'S GHETTO
AREA EXCEPT FOR THE RACE OF ITS INHABITANTS, THE SIZE AND CONFIGURATION
OF THE WHITE GHETTO AREA WERE NOT REVEALED BY THE FINDINGS. 

/10/  SEE APPENDIX TO OPINION, POST, P. 164. 

/11/  A STRIKING BUT TYPICAL EXAMPLE OF THE IMPORTANCE OF PARTY
AFFILIATION AND THE "WINNER TAKE ALL" EFFECT IS SHOWN BY THE 1964 HOUSE
OF REPRESENTATIVES ELECTION.  (TABLE OMITTED) 

THOUGH NEARLY 300,000 MARION COUNTY VOTERS CAST NEARLY 4 1/2
MILLIONS VOTES FOR THE HOUSE, THE HIGH AND LOW CANDIDATES WITHIN EACH
PARTY VARIED BY ONLY ABOUT A THOUSAND VOTES.  AND, AS THESE FIGURES
SHOW, THE REPUBLICANS LOST EVERY SEAT THOUGH THEY RECEIVED 48.69% OF
THE VOTE.  PLAINTIFFS' EXHIBIT 10. 

/12/  "THE FIRST REQUIREMENT IMPLICIT IN FORTSON V. DORSEY AND BURNS
V. RICHARDSON, THAT OF AN IDENTIFIABLE RACIAL OR POLITICAL ELEMENT
WITHIN THE MULTI-MEMBER DISTRICT, IS MET BY THE NEGRO RESIDENTS OF THE
CENTER TOWNSHIP GHETTO.  THESE NEGRO RESIDENTS HAVE INTERESTS IN AREAS
OF SUBSTANTIVE LAW SUCH AS HOUSING REGULATIONS, SANITATION, WELFARE
PROGRAMS (AID TO FAMILIES WITH DEPENDENT CHILDREN, MEDICAL CARE, ETC.),
GARNISHMENT STATUTES, AND UNEMPLOYMENT COMPENSATION, AMONG OTHERS,
WHICH DIVERGE SIGNIFICANTLY FROM THE INTERESTS OF NONRESIDENTS OF THE
GHETTO."  305 F.SUPP.,AT 1386. 

/13/  IBID.  THE DISTRICT COURT IMPLICITLY, IF NOT EXPRESSLY,
REJECTED THE TESTIMONY OF DEFENDANTS' WITNESSES, INCLUDING A PROFESSOR
OF POLITICAL SCIENCE, TO THE EFFECT THAT MARION COUNTY'S PROBLEMS AND
ALL ITS VOTERS WOULD BE BETTER SERVED BY A DELEGATION SITTING AND
VOTING AS A TEAM AND RESPONSIBLE TO THE DISTRICT AT LARGE, THAN BY A
DELEGATION ELECTED FROM SINGLE-MEMBER DISTRICTS AND SPLIT INTO GROUPS
REPRESENTING SPECIAL INTERESTS. 

/14/  ARTICLE 4, SEC. 6, OF THE INDIANA CONSTITUTION PROVIDES: 

"A SENATORIAL OR REPRESENTATIVE DISTRICT, WHERE MORE THAN ONE COUNTY
SHALL CONSTITUTE A DISTRICT, SHALL BE COMPOSED OF CONTIGUOUS COUNTIES;
AND NO COUNTY, FOR SENATORIAL APPORTIONMENT, SHALL EVER BE DIVIDED." 

/15/  SEE PART VII, INFRA. 

/16/  "IN HIS SECOND STATUS, WE FIND THAT PLAINTIFF WALKER IS A
VOTER OF INDIANA WHO RESIDES OUTSIDE MARION COUNTY.  APPLYING THE
UNIFORM DISTRICT PRINCIPLE, DISCUSSED INFRA IN THE REMEDY SECTION, WE
FIND THAT HE PROBABLY HAS RECEIVED LESS EFFECTIVE REPRESENTATION THAN
MARION COUNTY VOTERS.  IT HAS BEEN SHOWN THAT HE VOTES FOR FEWER
LEGISLATORS AND, THEREFORE, HAS FEWER LEGISLATORS TO SPEAK FOR HIM.  HE
ALSO, THEORETICALLY, CASTS FEWER CRITICAL VOTES THAN MARION COUNTY
VOTERS, BUT WE DECLINE TO SO HOLD IN THE ABSENCE OF SUFFICIENT EVIDENCE
AS TO OTHER FACTORS SUCH AS BLOC AND PARTY VOTING IN LAKE COUNTY.  WE
HOLD THAT, IN THE ABSENCE OF STRONGER EVIDENCE OF DILUTION, HIS REMEDY
IS LIMITED TO THE CONSIDERATION WHICH SHOULD BE GIVEN TO THE UNIFORM
DISTRICT PRINCIPLE IN ANY SUBSEQUENT REAPPORTIONMENT OF THE INDIANA
GENERAL ASSEMBLY."  305 F.SUPP.,AT 1390. 

/17/  THE COURT FOUND A FAILURE OF PROOF ON BEHALF OF PLAINTIFF
HOTZ, A RESIDENT OF THE WHITE SUBURBAN BELT, AND ON BEHALF OF PLAINTIFF
ALLAN, AN INDEPENDENT VOTER.  TWO OTHER PLAINTIFFS WERE ENTITLED TO NO
RELIEF, PLAINTIFF CHAVIS BECAUSE HE RESIDED OUTSIDE THE CENTER TOWNSHIP
GHETTO AND PLAINTIFF RAMSEY BECAUSE HE FAILED TO SHOW THT HE WAS A
RESIDENT OF THAT AREA.  ONLY PLAINTIFF BRYANT, IN ADDITION TO THE
QUALIFIED RECOGNITION GIVEN WALKER, WAS FOUND TO HAVE STANDING TO SUE
AND TO BE ENTITLED TO THE RELIEF PRAYED FOR. 

/18/  SEE PART VII, INFRA. 

/19/  THE GOVERNOR APPEALED HERE FOLLOWING THIS OPINION.  SINCE AT
THAT TIME NO JUDGMENT HAD BEEN ENTERED AND NO INJUNCTION HAD BEEN
GRANTED OR DENIED, WE DO NOT HAVE JURISDICTION OF THAT APPEAL AND IT IS
THEREFORE DISMISSED.  GUNN V. UNIVERSITY COMMITTEE, 399 U.S. 383
(1970). 

/20/  THE TRIAL COURT'S DISCUSSION OF THIS SUBJECT MAY BE FOUND IN
305 F.SUPP.,AT 1391-1392. 

/21/  THE COURT ALSO PROVIDED FOR THE POSSIBILITY THAT THE
LEGISLATURE WOULD FAIL TO REDISTRICT IN TIME FOR THE 1972 ELECTIONS: 

"THE INDIANA CONSTITUTIONAL PROVISION FOR STAGGERING THE TERMS OF
SENATORS, SO THAT ONE-HALF OF THE SENATE TERMS EXPIRE EVERY TWO YEARS,
IS ENTIRELY PROPER AND VALID AND WOULD BE MANDATORY IN A LEGISLATIVELY
DEVISED REDISTRICTING PLAN.     "HOWEVER, THE PLAN ADOPTED HEREIN IS
PROVISIONAL IN NATURE AND PROBABLY WILL BE APPLICABLE FOR ONLY THE 1970
ELECTION AND THE SUBSEQUENT 2-YEAR PERIOD.  THIS IS TRUE SINCE THE 1970
CENSUS WILL HAVE BEEN COMPLETED IN THE INTERIM, AND THE LEGISLATURE CAN
VERY WELL REDISTRICT ITSELF PRIOR TO THE 1972 ELECTION.  ON THE OTHER
HAND, IT IS CONCEIVABLE THAT THE LEGISLATURE MAY FAIL TO REDISTRICT
BEFORE THE 1972 ELECTIONS.  IN SUCH EVENT, ALL FIFTY SENATORIAL SEATS
SHALL BE UP FOR ELECTION EVERY TWO YEARS UNTIL SUCH TIME AS THE
LEGISLATURE PROPERLY REDISTRICTS ITSELF.  IT WILL THEN PROPERLY BE THE
PROVINCE OF THE LEGISLATURE IN REDISTRICTING TO DETERMINE WHICH
SENATORIAL DISTRICTS SHALL ELECT SENATORS TO 4-YEAR TERMS AND WHICH
SHALL ELECT SENATORS TO 2-YEAR TERMS TO REINSTATE THE STAGGERING OF
TERMS."  307 F.SUPP.,AT 1367. 

/22/  IN FORTSON, THE COURT REVERSED A THREE-JUDGE DISTRICT COURT
WHICH FOUND A VIOLATION OF THE EQUAL PROTECTION CLAUSE IN THAT VOTERS
IN SINGLE-MEMBER DISTRICTS WERE ALLOWED TO "SELECT THEIR OWN SENATOR"
BUT THAT VOTERS IN MULTI-MEMBER DISTRICTS WERE NOT.  THE STATUTORY
SCHEME IN FORTSON PROVIDED FOR SUBDISTRICTING WITHIN THE COUNTY, SO
THAT EACH SUBDISTRICT WAS THE RESIDENCE OF EXACTLY ONE SENATOR. 
HOWEVER, EACH SENATOR WAS ELECTED BY THE COUNTY AT LARGE.  THE COURT
SAID, "EACH (SUBDISTRICT'S SENATOR MUST BE A RESIDENT OF THAT
(SUBDISTRICT, BUT SINCE HIS TENURE DEPENDS UPON THE COUNTY-WIDE
ELECTORATE HE MUST BE VIGILANT TO SERVE THE INTERESTS OF ALL THE PEOPLE
IN THE COUNTY, AND NOT MERELY THOSE OF PEOPLE IN HIS HOME (SUBDISTRICT;
THUS IN FACT HE IS THE COUNTY'S AND NOT MERELY THE (SUBDISTRICT'S
SENATOR."  379 U.S.,AT 438.  THE QUESTION OF WHETHER THE SCHEME
"OPERATED) TO MINIMIZE OR CANCEL OUT THE VOTING STRENGTH OF RACIAL OR
POLITICAL ELEMENTS OF THE VOTING POPULATION" WAS NOT PRESENTED. 

IN BURNETTE, WE SUMMARILY AFFIRMED A THREE-JUDGE DISTICT COURT
RULING, MANN V. DAVIS, 245 F.SUPP.  241 (ED VA. 1965), WHICH UPHELD A
MULTI-MEMBER DISTRICT CONSISTING OF THE CITY OF RICHMOND, VA., AND
SUBURBAN HENRICO COUNTY OVER THE OBJECTIONS OF BOTH URBAN NEGROES AND
SUBRUBAN WHITES.  SINCE THE URBAN NEGROES DID NOT APPEAL HERE, THE
AFFIRMANCE IS OF NO WEIGHT AS TO THEM, BUT AS TO THE SUBURBANITES IT
REPRESENTS AN ADHERENCE TO FORTSON.  SIMILARLY, HARRISON SUMMARILY
AFFIRMED A DISTRICT COURT REAPPORTIONMENT PLAN, SCHAEFER V. THOMSON,
251 F.SUPP.  450 (WYO. 1965), WHERE MULTI-MEMBER DISTRICTS IN WYOMING
WERE HELD NECESSARY TO KEEP COUNTY SPLITTING AT A MINIMUM. 

BURNS VACATED A THREE-JUDGE COURT DECREE WHICH REQUIRED SINGLE
MEMBER DISTRICTS EXCEPT IN EXTRAORDINARY CIRCUMSTANCES.  THE COURT IN
BURNS NOTED THAT "THE DEMONSTRATION THAT A PARTICULAR MULTI-MEMBER
SCHEME EFFECTS AN INVIDIOUS RESULT MUST APPEAR FROM EVIDENCE IN THE
RECORD."  348 U.S.,AT 88. 

IN KILGARLIN, THE COURT AFFIRMED, PER CURIAM, A DISTRICT COURT
RULING 

"INSOFAR AS IT HELD THAT APPELLANTS HAD NOT PROVED THEIR ALLEGATIONS
THAT (THE TEXAS HOUSE OF REPRESENTATIVES REAPPORTIONMENT PLAN) WAS A
RACIAL OR POLITICAL GERRYMANDER VIOLATING THE FOURTEENTH AMENDMENT,
THAT IT UNCONSTITUTIONALLY DEPRIVED NEGROES OF THEIR FRANCHISE AND THAT
BECAUSE OF ITS UTILIZATION OF SINGLE-MEMBER, MULTI-MEMBER AND FLOTERIAL
DISTRICTS IT WAS AN UNCONSTITUTIONAL 'CRAZY GUILTY.'"  386 U.S.,AT
121. 

/23/  THE MATHEMATICAL BACKBONE OF THIS THEORY IS AS FOLLOWS:  IN A
POPULATION OF N VOTERS, WHERE EACH VOTER HAS A CHOICE BETWEEN TWO
ALTERNATIVES (CANDIDATES), THERE ARE 2N POSSIBLE VOTING COMBINATIONS. 
FOR EXAMPLE, WITH A POPULATION OF THREE VOTERS, A, B, AND C, AND TWO
CANDIDATES, X AND Y, THERE ARE EIGHT COMBINATIONS:  (TABLE OMITTED) 

THE THEORY HYPOTHESIZES THAT THE TRUE TEST OF VOTING POWER IS THE
ABILITY TO CAST A TIE-BREAKING, OR "CRITICAL" VOTE.  IN THE POPULATION
OF THREE VOTERS AS SHOWN ABOVE, ANY VOTER CAN CAST A CRITICAL VOTE IN
FOUR SITUATIONS; IN THE OTHER FOUR SITUATIONS, THE VOTE IS NOT CRITICAL
SINCE IT CANNOT CHANGE THE OUTCOME OF THE ELECTION:  FOR EXAMPLE, C CAN
CAST A TIE-BREAKING VOTE ONLY IN SITUATIONS 3, 4, 5, AND 6.  THE NUMBER
OF COMBINATIONS IN WHICH A VOTER CAN CAST A TIE-BREAKING VOTE IS
(MATHEMATICAL CALCULATION OMITTED) WHERE N IS THE NUMBER OF VOTERS. 
DIVIDING THIS RESULT (CRITICAL VOTES) BY 2N (POSSIBLE COMBINATIONS),
ONE ARRIVES AT THAT FRACTION OF POSSIBLE COMBINATIONS IN WHICH A VOTER
CAN CAST A CRITICAL VOTE.  THIS IS THE THEORY'S MEASURE OF VOTING
POWER.  IN DISTRICT K WITH THREE VOTERS, THE FRACTION IS 4/8, OR 50%.
IN DISTRICT L WITH NINE VOTERS, THE FRACTION IS 140/512, OR 28%.
CONVENTIONAL WISDOM WOULD GIVE DISTRICT K ONE REPRESENTATIVE AND
DISTRICT L THREE.  BUT UNDER THE THEORY, A VOTER IN DISTRICT L IS NOT
1/3 AS POWERFUL AS THE VOTER IN DISTRICT K, BUT MORE THAN HALF AS
POWERFUL.  DISTRICT L DESERVES ONLY TWO REPRESENTATIVES, AND BY GIVING
IT THREE THE STATE CAUSES VOTERS THEREIN TO BE OVERREPRESENTED.  FOR A
FULLER EXPLANATION OF THIS THEORY, SEE BANZHAF, MULTI-MEMBER ELECTORAL
DISTRICTS-- DO THEY VIOLATE THE "ONE MAN, ONE VOTE" PRINCIPLE, 75 YALE
L.J. 1309 (1966). 

/24/  TR. 39.  PLAINTIFFS' BRIEF IN THIS COURT RECOGNIZES THE ISSUE:
"THE OBVIOUS QUESTION WHICH THE FOREGOING PRESENTATION GIVES RISE TO
IS THAT OF WHETHER THE FACT THAT A VOTER IN A LARGE MULTI-MEMBER
DISTRICT HAS A GREATER MATHEMATICAL CHANCE TO CAST A CRUCIAL VOTE HAS
ANY PRACTICAL SIGNIFICANCE."  BRIEF OF APPELLEES (PLAINTIFFS) 14. 

/25/  CF. BANZHAF, WEIGHTED VOTING DOESN'T WORK:  A MATHEMATICAL
ANALYSIS, 19 RUTGERS L.REF.  317; 1965). 

/26/  IT IS APPARENT THAT THE DISTRICT COURT DECLINED TO RULE AS A
MATTER OF LAW THAT A MULTI-MEMBER DISTRICT WAS PER SE ILLEGAL AS GIVING
AN INVIDIOUS ADVANTAGE TO MULTI-MEMBER DISRICT VOTERS OVER VOTERS IN
SINGLE-MEMBER DISTRICTS OR SMALLER MULTI-MEMBER DISTRICTS.  SEE 305
F.SUPP.,AT 1391-1392. 

/27/  THE SO-CALLED URBAN-RURAL DIVISION HAS BEEN MUCH TALKED
ABOUT.  ANTAGONISTIC BLOC VOTING BY THE TWO CAMPS MAY OCCUR BUT IT HAS
PERHAPS BEEN OVEREMPHASIZED.  SEE WHITE & THOMAS, URBAN AND RURAL
REPRESENTATION AND STATE LEGISLATIVE APPORTIONMENT, 17 W.POL.Q. 724
(1964).  LEGISLATION DEALING WITH UNIQUELY URBAN PROBLEMS MAY BE
ROUTINELY APPROVED WHEN URBAN DELEGATIONS ARE IN AGREEMENT BUT
ENCOUNTER INSUPERABLE DIFFICULTIES WHEN THE DELEGATIONS ARE SPLIT
INTERNALLY.  SEE KOVACH, SOME LESSONS OF REAPPORTIONMENT, 37 REPORTER
26, 31 (SEPT. 21, 1967). 

/28/  SEE APPENDIX TO OPINION, POST, P. 164. 

/29/  IT DOES NOT APPEAR THAT THE MARION COUNTY MULTI-MEMBER
DISTRICT ALWAYS OPERATED TO EXCLUDE NEGORES OR THE POOR FROM THE
LEGISLATURE.  IN THE FIVE GENERAL ASSEMBLIES FROM 1960-1968, THE
COUNTY'S CENTER TOWNSHIP GHETTO HAD ONE SENATOR AND FOUR
REPRESENTATIVES.  THE REMAINDER OF THE TOWNSHIP, WHICH INCLUDES A WHITE
GHETTO, ELECTED ONE SENATOR AND EIGHT REPRESENTATIVES.  CENSUS TRACT
220, INHABITED PREDOMINANTLY BY NEGROES BUT HAVING DIFFERENT ECONOMIC
AND SOCIAL CHARACTERISTICS ACCORDING TO THE TRIAL COURT, ELECTED ONE
SENATOR AND FIVE REPRESENTATIVES.  IBID.  PLAINTIFFS' EVIDENCE
INDICATED THAT MARION COUNTY AS A WHOLE ELECTED TWO NEGRO SENATORS AND
SEVEN REPRESENTATIVES IN THOSE YEARS.  PLAINTIFFS' EXHIBIT 10. 

/30/  PLAINTIFFS' EXHIBIT 10 PURPORTED TO LIST THE NAMES AND RACE OF
BOTH PARTIES' GENERAL ASSEMBLY CANDIDATES FROM 1920 THROUGH 1968.  FOR
THE 1960-1968 PERIOD WHICH CONCERNED THE DISTRICT COURT, THE EXHIBIT
PURPORTED TO SHOW THAT THE DEMOCRATIC PARTY SLATED ONE NEGRO
REPRESENTATIVE IN 1960; ONE IN 1962; ONE SENATOR AND TWO
REPRESENTATIVES IN 1964; THREE REPRESENTATIVES IN 1966; AND ONE SENATOR
AND TWO REPRESENTATIVES IN 1968.  THE REPUBLICAN PARTY SLATED ONE NEGRO
SENATOR IN 1960; TWO REPRESENTATIVES IN 1966; AND THREE REPRESENTATIVES
IN 1968.  THE RACIAL DESIGNATIONS ON THE EXHIBIT, HOWEVER, WERE
EXCLUDED AS HEARSAY. 

THE BRIEF OF APPELLEES (PLAINTIFFS), AT 23 N. 7, INDICATES THAT IN
THE 1970 ELECTIONS: 

"(ONE OF THE MAJOR POLITICAL PARTIES IN MARION COUNTY HELD DISTRICT
'MINI-SLATING CONVENTIONS' FOR PURPOSES OF DETERMINING ITS LEGISLATIVE
CANDIDATES.  ALL OF THE SLATED CANDIDATES WERE SUBSEQUENTLY NOMINATED
IN THE PRIMARY.  BLACK CANDIDATES FILED IN THE SLATING CONVENTIONS IN
SIX OF THE FIFTEEN MARION COUNTY 'DISTRICTS' INCLUDING THE FIVE THAT
CONTAIN PARTS OF THE GHETTO AREA.  ONLY TWO BLACK CANDIDATES WERE
SLATED AND NOMINATED INCLUDING ONE IN THE DISTRICT THAT CONTAINS ONLY A
VERY SMALL PART OF THE GHETTO AREA WHERE THE BLACK CANDIDATE
OVERWHELMINGLY DEFEATED THE WHITE CANDIDATE IN A HEAD-ON RACE
NOTWITHSTANDING A VERY SUBSTANTIAL WHITE VOTING MAJORITY.  IN A
DISTRICT THAT WAS ALMOST ENTIRELY GHETTO A WHITE CANDIDATE WON ALMOST
ALL OF THE VOTE IN A HEAD-ON RACE AGAINST A BLACK CANDIDATE WHO
CAMPAIGNED PRIMARILY ON THE BASIS OF SKIN-COLOR.  ALL FIVE OF THE
CANDIDATES IN THE 'GHETTO DISTRICTS,' HOWEVER, AVOWED A SUBSTANTIAL
COMMITMENT TO THE SUBSTANTIVE INTERESTS OF BLACK PEOPLE AND THE POOR." 

THE RECORD SHOWS THAT PLAINTIFF CHAVIS WAS SLATED BY THE DEMOCRATIC
PARTY AND ELECTED TO THE STATE SENATE IN 1964.  EXHIBIT 10.  ALSO,
PLAINTIFFS RAMSEY AND BRYANT WERE BOTH SLATED BY THE SAME PARTY AS
CANDIDATES FOR THE HOUSE OF REPRESENTATIVES IN 1968 BUT WERE DEFEATED
IN THE GENERAL ELECTION.  IBID.; SEE ALSO TR. 131 (RAMSEY), TR. 133
(BRYANT). 

ONE OF PLAINTIFFS' WITNESSES, AN ATTORNEY AND POLITICAL FIGURE IN
THE REPUBLICAN PARTY, TESTIFIED AS FOLLOWS: 

"Q.  IN YOUR EXPERIENCE, MRS. ALLEN, AREN'T TICKETS PUT TOGETHER BY
PARTY ORGANIZATION TO APPEAL (TO) THE VARIOUS INTEREST GROUPS
THROUGHTOUT MARION COUNTY? 

"A. YES. 

"Q.  AMONG THESE INTEREST GROUPS ARE ECONOMIC GROUPS, RACIAL GROUPS
AND OTHERS? 

"A.  YES. 

        .          .          .          . 

"Q.  I SHOW YOU EXHIBIT 5B THAT IS IN EVIDENCE, SHOWING THE LOCATION
OF THE ELECTED REPUBLICAN REPRESENTATIVES' HOMES AT THE TIME THEY FILED
IN THE PARTY PRIMARY, DOES IT TO YOU SOMEHOW REFLECT AN INTEREST IN
MAKING AN APPEAL TO EACH CONCEIVABLE FACTION IN THE FAMILY, IN THE
COUNTY AREA, EACH GEOGRAPHICAL INTEREST? 

"A.  YES, IT DOES, IF I CAN EXPLAIN. 

"Q.  YES, YOU MAY. 

"A.  BACK IN 1966, AS I STATED, WE HAD A REAL PRIMARY FIGHT AND AT
THAT TIME WE SELECTED OUR CANDIDATES IN THE PRIMARY REPUBLICAN ACTION
COMMITTEE WAS NOT REAL, REAL STRONG IN SOME GEOGRAPHICAL AREAS, AND WE
FELT THAT NECESSARY TO COME UP WITH A 15 MAN SLATE, MANY OF THE PEOPLE
WHO LIVED IN CENTER TOWNSHIP INCLUDING MYSELF DID NOT FEEL READY TO RUN
FOR PUBLIC OFFICE AND THEREFORE THERE WAS A HIATUS IN CENTER TOWNSHIP
RESIDENTS.  HOWEVER, MANY OF THE WASHINGTON TOWNSHIP RESIDENTS, I
BELIEVE AT LEAST TWO WASHINGTON TOWNSHIP RESIDENTS HAD A NUMBER OF
FAMILY AND HISTORICAL TIES IN THIS CENTER TOWNSHIP AREA, EVEN THOUGH
THEY DID NOT LIVE THERE AND TO THE BEST OF THE COMMITTEE'S ABILITY THEY
TRIED TO ACHIEVE RACIAL, GEOGRAPHICAL, ECONOMICAL AND SOCIAL DIVERSITY
ON THE TICKET.  I CAN'T SAY THEY WERE ENTIRELY SUCCESSFUL, BUT THEY
MADE A REAL GOOD ATTEMPT AND THIS IS A RESULT OF THEIR ATTEMPTS. 

"Q.  AND THE REAL HARD DRIVING EFFORT TO PUT THE ACTION COMMITTEES
THROUGH DID TAKE PLACE BY THE RESIDENTS OF CENTER TOWNSHIP; DID IT
NOT? 

"A. IT WAS AN OVER-ALL DRIVE.  CENTER TOWNSHIP, HAVING THE
POPULATION IT HAS, COULD NOT BE IGNORED."  TR. 145-148. 

PLAINTIFFS' LAWYER WAS AT THE TIME OF THE TRIAL THE MARION COUNTY
DEMOCRATIC CHAIRMAN, TR. 256; PLAINTIFF CHAVIS WAS A WARD CHAIRMAN AND
A LONGTIME PRECINCT COMMITTEEMAN, TR. 77. 

/31/  SEE APPENDIX TO OPINION, P. 164. 

/32/  SEE IBID.  IN ADDITION, THE REPUBLICANS NOMINATED AND ELECTED
ONE SENATOR (1960), AND THREE REPERSENTATIVES (1960, 1966, 1968) FROM
CENSUS TRACT 220, AND FOUR REPRESENTATIVES (THREE IN 1962, ONE IN 1966)
FROM THE NONGHETTO AREA OF CENTER TOWNSHIP.  IBID. 

ALTHOUGH PLAINTIFFS ASSERTED IT, THERE WAS NO FINDING BY THE
DISTRICT COURT THAT REPUBLICAN LEGISLATORS RESIDING IN THE GHETTO WERE
NOT REPRESENTATIVE OF THE AREA OR HAD FAILED PROPERLY TO REPRESENT
GHETTO INTERESTS IN THE GENERAL ASSEMBLY. 

/33/  THE COMPARATIVE MERITS OF THE TWO APPROACHES TO METROPOLITAN
REPRESENTATION HAS BEEN MUCH MOOTED AND IS STILL IN CONTENTION.  SEE
THE AUTHORITIES CITED IN N. 38, INFRA, PARTICULARLY THE PIECE BY KOVACH
AND THE SERIES OF STUDIES BY COLLINS, DAUER, DAVID, LACY, & MAUER. 
AND, OF COURSE, WITNESSES IN THE TRIAL COURT DIFFERED ON THIS VERY
ISSUED.  E.G., TR. 209-214, 223-229, 235-238, 256-258.  DAVID &
EISENBERG IN THEIR STUDY, INFRA, N. 38, CONCLUDED THAT THE CASE FOR
RIGID INSISTENCE ON SINGLE-MEMBER DISTRICTING HAS NOT BEEN PROVED. 
THEY WOULD PREFER A SYSTEM OF SMALL MULTI-MEMBER DISTRICTS IN
METROPOLITAN AREAS TO EITHER THE LARGER MULTI-MEMBER DISTRICT OR THE
SINGLE-MEMBER DISTRICT, THEREBY MINIMIZING THE ACKNOWLEDGED
SHORTCOMINGS OF EACH.  MORE GENERALLY, STILL IN SUSPENSE IS DEFINITIVE
JUDGMENT ABOUT THE LONG-RANGE IMPACT OF VOTING SYSTEMS AND
MALAPPORTIONMENT ON LEGISLATIVE OUTPUT.  SOKOLOW, AFTER
REAPPORTIONMENT:  NUMBERS OR POLICIES?, 19 W.POL.Q.SUPP.  21 (1966); T.
DYE, POLITICS, ECONOMICS, AND THE PUBLIC 260-277 (1966); D. LOCKARD,
THE POLITICS OF STATE AND LOCAL GOVERNMENT 290-293 (2D ED. 1969). 
/34/  INTERESTINGLY ENOUGH, IN WRIGHT V. ROCKEFELLER, 376 U.S. 52
(1964), CHALLENGE WAS TO A SINGLE-MEMBER DISTRICT PLAN WITH DISTRICTS
ALLEGEDLY DRAWN ON RACIAL LINES AND DESIGNED TO LIMIT NEGROES TO VOTING
FOR THEIR OWN CANDIDATES IN SAFE NEGRO DISTRICTS.  WE REJECTED THE
CHALLENGED FOR FAILURE OF PROOF, BUT NOTED IN PASSING THAT "SOME OF
THESE VOTERS . . . WOULD PREFER A MORE EVEN DISTRIBUTION OF MINORITY
GROUPS AMONG THE FOUR CONGRESSIONAL DISTRICTS, BUT OTHERS, LIKE THE
INTERVENORS IN THIS CASE, WOULD ARGUE STRENUOUSLY THAT THE KIND OF
DISTRICTS FOR WHICH APPELLANTS CONTENDED WOULD BE UNDESIRABLE AND,
BECAUSE BASED ON RACE OR PLACE OF ORIGIN, WOULD THEMSELVES BE
UNCONSTITUTIONAL."  376 U.S.,AT 57-58.     /35/  PLAINTIFFS' FINAL
ARGUMENTS IN THE DISTRICT COURT ASSERTED POLITICAL AS WELL AS RACIAL
AND ECONOMIC DISCRIMINATION IN THE WORKINGS OF THE MARION COUNTY
DISTRICT, IN THAT THE "POLITICAL MINORITY,"  WHETHER REPUBLICANS OR
DEMOCRATS, IS "ALWAYS SHUT OUT" WHEN THE OPPOSING PARTY WINS.  TR.
254.  SEE N. 11,SUPRA. 

/36/  FOR DISCUSSIONS OF VOTING SYSTEMS DESIGNED TO ACHIEVE MINORITY
REPRESENTATION, SEE DIXON, INFRA,N. 38, AT 516-527; BLACK, THE THEORY
OF ELECTIONS IN SINGLE-MEMBER CONSTITUENCIES, 15 CAN.J. OF ECONOMICS
AND POL.SCI.  158 (1949); SILVA, RELATION OF REPRESENTATION AND THE
PARTY SYSTEM TO THE NUMBER OF SEATS APPORTIONED TO A LEGISLATIVE
DISTRICT, 17 W.POL.Q. 742, 744 ET SEQ. (1964); S. BEDFORD,THE FACES OF
JUSTICE (1961); E. LAKEMAN & J. LAMBERT, VOTING IN DEMOCRACIES, (1959);
BLAIR, CUMULATIVE VOTING:  AN EFFECTIVE ELECTORAL DEVICE IN ILLINOIS
POLITICS, 45 ILL. STUDIES IN THE SOCIAL SCIENCES (1960). 

/37/  AS OF NOVEMBER 1970, 46% OF THE UPPER HOUSES AND 62% OF THE
LOWER HOUSES IN THE STATES CONTAINED SOME MULTI-MEMBER DISTRICTS. 
NATIONAL MUNICIPAL LEAGUE, APPORTIONMENT IN THE NINETEEN SIXTIES (REV.
NOV. 1970).  IN 1955, IT WAS REPORTED THAT THE FIGURES WERE 33% AND
75%, RESPECTIVELY.  KLAIN, A NEW LOOK AT THE CONSTITUENCIES:  THE NEED
FOR A RECOUNT AND A REAPPRAISAL, 49 AM.POL.SCI.REV.  1105 (1955). 
THOUGH THE OVERALL EFFECT OF THE REAPPORTIONMENT CASES ON THIS
PHENOMENON IS NECESSARILY SOMEWHAT SPECULATIVE, THERE IS NO DOUBT THAT
SOME STATES SWITCHED TO MULTI-MEMBER DISTRICTS AS A RESULT OF THOSE
DECISIONS.  PRIOR TO THE DECISIONS, FOR EXAMPLE, VERMONT'S LOWER HOUSE
WAS COMPOSED ENTIRELY OF SINGLE-MEMBER DISTRICTS.  ID., AT 1109.  THIS
RESULTED IN THE COLORFUL SITUATION OF ONE REPRESENTATIVE FOR A TOWN OF
33,155 AND ANOTHER FOR A TOWN OF 38 IN 1962.  NATIONAL MUNICIPAL
LEAGUE, APPORTIONMENT IN THE NINETEEN SIXTIES, PT. IB).  REAPPORTIONED
AND REDISTRICTED IN LIGHT OF REYNOLDS, VERMONT'S LOWER HOUSE NOW HAS 36
MULTI-MEMBER AND 36 SINGLE-MEMBER DISTRICTS.  BUCKLEY V. HOFF, 243
F.SUPP.  873 (VT. 1965).  REAPPORTIONMENT HAS ALSO BEEN CREDITED WITH
ABOLISHING MARYLAND'S TRADITION OF SINGLE-MEMBER DISTRICTS IN ITS
SENATE.  BURDETTE, MARYLAND REAPPORTIONMENT, IN APPORTIONMENT IN THE
NINETEEN SIXTIES, SUPRA. 

/38/  THE RELATIVE MERITS OF MULTI-MEMBER AND SINGLE-MEMBER PLANS
HAVE BEEN MUCH DEBATED AND THE GENERAL PREFERENCE FOR SINGLE MEMBER
DISTRICTS HAS NOT GONE UNCHALLENGED.  FOR REPRESENTATIVE TREATMENT OF
THE SUBJECT SEE:  R. DIXON, DEMOCRATIC REPRESENTATION:  REAPPORTIONMENT
IN LAW AND POLITICS 461-463, 470-472, 476-490, 503-507 (1968); P. DAVID
& R. EISENBERG, STATE LEGISLATIVE REDISTRICTING:  MAJOR ISSUES IN THE
WAKE OF JUDICIAL DECISION (1962); BARNETT, UNITARY-MULTIPLE ELECTION
DISTRICTS, 39 AM.POL.SCI.REV.  65 (1945); SILVA, COMPARED VALUES OF THE
SINGLE- AND THE MULTI-MEMBER LEGISLATIVE DISTRICT, 17 W.POL.Q. 504
(1964); HAMILTON, LEGISLATIVE CONSTITUENCIES:  SINGLE-MEMBER DISTRICTS,
MULTI-MEMBER DISTRICTS, AND FLOTERIAL DISTRICTS, 20 W.POL.Q. 321 (1967)
(INCLUDES A DISCUSSION OF DISTRICTING IN INDIANA); SILVA, RELATION OF
REPRESENTATION AND THE PARTY SYSTEM TO THE NUMBER OF SEATS APPORTIONED
TO A LEGISLATIVE DISTRICT, 17 W.POL.Q. 742 (1964); LINDQUIST,
SOCIOECONOMIC STATUS AND POLITICAL PARTICIPATION, 17 W.POL.Q. 742
(1964); LINQUIST, SOCIOECONOMIC STATUS AND POLITICAL PARTICIPATION, 17
W.POL.Q. 608 (1964); KLAIN, A NEW LOOK AT THE CONSTITUENCIES:  THE NEED
FOR A RECOUNT AND A REAPPRAISAL, 49 AM.POL.SCI.REV.  1105 (1955);
KOVACH, SOME LESSONS OF REAPPORTIONMENT, 37 REPORTER 26 (SEPT. 21,
1967); AND M. COLLINS, M. DAUER, P. DAVID, A. LACY, & G. MAUER,
EVOLVING ISSUES AND PATTERNS OF STATE LEGISLATIVE REDISTRICTING IN
LARGE METROPOLITAN AREAS (1966). 

INTERESTING MATERIAL WITH RESPECT TO THE RELATIVE MERITS OF SINGLE-
AND MULTI-MEMBER DISTRICTS MAY BE FOUND IN THE CONGRESSIONAL DEBATES
SURROUNDING THE PASSAGE IN 1842 OF THE STATUTE REQUIRING
REPRESENTATIVES TO BE ELECTED IN SINGLE-MEMBER DISTRICTS.  SEE N. 39,
INFRA.  THOUGH THE RACIAL CONSIDERATIONS PRESENT HERE WERE, NOT
SURPRISINGLY, ABSENT IN THESE PRE-CIVIL WAR AMENDMENTS DEBATES, THE
CONCERN VOICED BY CONGRESSMEN OVER THE SUBMERGENCE OF MINORITIES, BLOC
VOTING, AND PARTY CONTROL SHOWS, AT LEAST, THAT THE PLAINTIFFS'
APPREHENSIONS ARE NOT ENTIRELY NEW ONES.  SEE, E.G., CONG. GLOBE, 27TH
CONG., 2D SESS., 445-448, 452-453, 463-464. 

/39/  IN COLONIAL DAYS, "(MULTIPLE DISTRICTS WERE THE RULE, SINGLE
ONES THE EXCEPTION," AND "(FOR NEARLY A CENTURY AND A HALF AFTER THE
DECLARATION OF INDEPENDENCE THE AMERICAN STATES ELECTED BY FAR THE
GREATER PART OF THEIR LAWMAKERS IN MULTIPLE CONSTITUENCIES."  KLAIN,
SUPRA, N. 38, AT 1112, 1113.  ALTHOUGH A TREND TOWARD SINGLE-MEMBER
DISTRICTS BEGAN LONG AGO, MULTIPLE DISTRICTS ARE STILL MUCH IN
EVIDENCE.  SEE N. 37, SUPRA.  SEE ALSO DAVID & EISENBERG, SUPRA, N. 38,
AT 20; DIXON, SUPRA, N. 38, AT 504. 

IN 1842, CONGRESS BY STATUTE REQUIRED SINGLE-MEMBER DISTRICTS FOR
CONGRESSIONAL ELECTIONS.  ACT OF JUNE 25, 1842, SEC. 2, 5 STAT. 491. 
THE SUBSTANCE OF THE RESTRICTION WAS CONTINUED IN REV. STAT. SEC. 23
AND IN APPORTIONMENT LEGISLATION IN THIS CENTURY UNTIL 1929.  IN 1941,
CONGRESS ENACTED A LAW THAT REQUIRED THAT UNTIL A STATE IS REDISTRICTED
IN A MANNER PROVIDED BY LAW AFTER DECENNIAL REAPPORTIONMENT OF THE
HOUSE, REPRESENTATIVES WERE TO BE ELECTED FROM THE DISTRICTS PRESCRIBED
BY THE LAW OF THE STATE, AND THAT "IF ANY OF THEM ARE ELECTED FROM THE
STATE AT LARGE THEY SHALL CONTINUE TO BE SO ELECTED," PROVIDED THAT IF
REAPPORTIONMENT OF THE HOUSE FOLLOWING A CENSUS SHOWS THAT A STATE IS
ENTITLED TO AN INCREASE IN THE NUMBER OF REPRESENTATIVES, THE
ADDITIONAL REPRESENTATIVES SHALL BE ELECTED AT LARGE UNTIL THE STATE IS
REDISTRICTED, AND IF THERE IS A DECREASE IN THE NUMBER OF
REPRESENTATIVES AND THE NUMBER OF DISTRICTS IN THE STATE EXCEEDS THE
NUMBER OF REPRESENTATIVES NEWLY APPORTIONED, ALL REPRESENTATIVES SHALL
BE ELECTED AT LARGE.  ACT OF NOV. 15, 1941, 55 STAT. 762, AMENDING SEC.
22(C) OF THE ACT OF JUNE 18, 1929, 46 STAT. 27, 2 U.S.C. 2AC).  IN
1967, CONGRESS REINSTATED THE SINGLE-MEMBER DISTRICT REQUIREMENT,
"EXCEPT THAT A STATE WHICH IS ENTITLED TO MORE THAN ONE REPRESENTATIVE
AND WHICH HAS IN ALL PREVIOUS ELECTIONS ELECTED ITS REPRESENTATIVES AT
LARGE MAY ELECT ITS REPRESENTATIVES AT LARGE TO THE NINETY-FIRST
CONGRESS."  81 STAT. 581, 2 U.S.C. 2C (1964 ED., SUPP. V).  HAWAII WAS
THE ONLY STATE TO TAKE ADVANTAGE OF THIS EXCEPTION.  IT HAS DISTRICTED
FOR THE 92D CONGRESS.  HAWAII REV. STAT. SEC. 12-32.5 (SUPP. 1969). 

CONGRESS HAS NOT PURPORTED TO EXERCISE FOURTEENTH AMENDMENT POWERS
TO REGULATE OR PROHIBIT MULTI-MEMBER DISTRICTS IN STATE ELECTIONS. 

/40/  THE COURT WAS ALSO IMPRESSED BY THE 1967 INDIANA BOARD OF
HEALTH VITAL STATISTICS POPULATION ESTIMATES WHICH SHOWED A SENATE
VARIANCE OF 36.83% AND A HOUSE VARIANCE OF 37.30%.  IT DID NOT BASE ITS
ORDER ON THESE INTERIM FIGURES, HOWEVER.  SEE 307 F.SUPP.  1362, 1366. 

/41/  SEE ALSO KIRKPATRICK V. PREISLER, 394 U.S. 526 (1969), AND
WELLS V. ROCKEFELLER, 394 U.S. 542 (1969), IN WHICH THE COURT HELD THAT
VARIANCES OF 5.97% AND 13.096%, RESPECTIVELY, WERE IMPERMISSIBLE FOR
CONGRESSIONAL REDISTRICTING. 

/42/  IN REDISTRICTING THE STATE, THE DISTRICT COURT DIVIDED SOME
COUNTIES INTO SEVERAL DISTRICTS, AND DEFENDANT ATTACKS THIS AS AN
UNWARRANTED VIOLATION OF INDIANA CONST., ART. 4, SEC. 6, WHICH SAYS NO
COUNTY, FOR SENATORIAL APPORTIONMENT, SHALL EVER BE DIVIDED." 
DEFENDANT CONCEDES THAT "(THE ERROR . . . IS NOT THE PER SE VIOLATION"
OF THE CONSTITUTION, BUT RATHER THAT THE COURT DREW ITS PLAN "WITHOUT
HAVING MEANINGFULLY CONSIDERED" THE DICTATES OF THE CONSTITUTION. 
BRIEF FOR APPELLANT (DEFENDANT) 49.  BUT THE CONTRARY APPEARS TO US TO
BE TRUE.  THE COURT ANNOUNCED THAT IT "WOULD STRIVE TO PRESERVE THE
INTEGRITY OF COUNTY AND TOWNSHIP LINES" WHEREVER POSSIBLE, 307
F.SUPP.,AT 1364, THOUGH IT ULTIMATELY CONCLUDED THAT THE "DIFFICULTY OF
DEVISING . . . COMPACT AND CONTIGUOUS . . . DISTRICTS WITHIN THAT
FRAMEWORK (OF MATHEMATICAL EQUALITY) HAS IN LARGE PART PRECLUDED
PRESERVATION OF COUNTY LINES."  ID., AT 1366.  WE NOTE THAT NONE OF THE
STATEWIDE REDISTRICTING PLANS THAT WERE SUBMITTED FOR THE COURT'S
CONSIDERATION, INCLUDING THOSE OF THE HOUSE AND SENATE MINORITY LEADERS
AND THE CHAIRMAN OF THE SENATE MAJORITY CAUCUS COMMITTEE, FOLLOWED THE
STATE CONSTITUTION IN THIS RESPECT.  R. 57-137, 198-228. 

/43/  IN ANY EVENT, THE COURT WAS CAREFUL TO NOTE THAT "WE DO NOT
MEAN TO INTIMATE THAT MORE FREQUENT REAPPORTIONMENT WOULD NOT BE
CONSTITUTIONALLY PERMISSIBLE OR PRACTICABLY DESIRABLE."  377 U.S.,AT
584. 

(FOR APPENDIX TO OPINION OF THE COURT, SEE POST, P. 164.) 

MR. JUSTICE STEWARD JOINS IN PART I THROUGH VI OF THE COURT'S
OPINION, HOLDING THAT THE MULTI-MEMBER DISTRICTING SCHEME HERE IN ISSUE
DID NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  HE DISSENTS FROM PART VII OF THE OPINION FOR THE REASONS
EXPRESSED IN HIS DISSENTING OPINION IN LUCAS V. COLORADO GENERAL
ASSEMBLY, 377 U.S. 713, 744. 

THE FOLLOWING TABLE WAS INCLUDED IN THE TRIAL COURT'S FINDINGS:

    APPENDIX TO OPINION OF THE COURT

        TABLE NO. 7 (TABLE OMITTED) 

SEPARATE OPINION OF MR. JUSTICE HARLAN. 

EARLIER THIS TERM I REMARKED ON "THE EVIDENT MALAISE AMONG THE
MEMBERS OF THE COURT" WITH PRIOR DECISIONS IN THE FIELD OF VOTER
QUALIFICATIONS AND REAPPORTIONMENT.  OREGON V. MITCHELL, 400 U.S. 112,
218 (1970) (SEPARATE OPINION OF THIS WRITER). 

TODAY'S OPINIONS IN THIS AND TWO OTHER VOTING CASES NOW DECIDED /1/
CONFIRM THAT DIAGNOSIS. 

        I 

PAST DECISIONS HAVE HELD THAT DISTRICTING IN LOCAL GOVERNMENTAL
UNITS MUST APPROACH EQUALITY OF VOTER POPULATION "AS FOR AS IS
PRACTICABLE," HADLEY V. JUNIOR COLLEGE DISTRICT, 397 U.S. 50, 56
(1970), AND THAT THE "AS NEARLY AS IS PRACTICABLE" STANDARD OF WESBERRY
V. SANDERS, 376 U.S. 1, 7-8 (1964), FOR CONGRESSIONAL DISTRICTING
FORBADE A MAXIMUM VARIATION OF 6%.  KIRKPATRICK V. PREISLER, 394 U.S.
526 (1969).  TODAY THE COURT SUSTAINS A LOCAL GOVERNMENTAL
APPORTIONMENT SCHEME WITH A 12% VARIATION.  ABATE V. MUNDT, POST, P.
182. 

OTHER PAST DECISIONS HAVE SUGGESTED THAT MULTI-MEMBER CONSTITUENCIES
WOULD BE UNCONSTITUTIONAL IF THEY COULD BE SHOWN "UNDER THE
CIRCUMSTANCES OF A PARTICULAR CASE . . . TO MINIMIZE OR CANCEL OUT THE
VOTING STRENGTH OF RACIAL OR POLITICAL ELEMETS OF THE VOTING
POPULATION."  FORTSON V. DORSEY, 379 U.S. 433, 439 (1965); BURNS V.
RICHARDSON, 384 U.S. 73, 88 (1966).  TODAY THE COURT HOLDS THAT A THREE
JUDGE DISTRICT COURT, WHICH STRUCK DOWN AN APPORTIONMENT SCHEME FOR
JUST THIS REASON, "MISCONCEIVED THE EQUAL PROTECTION CLAUSE."  ANTE, AT
160. 

PRIOR OPINIONS STATED THAT "ONCE THE CLASS OF VOTERS IS CHOSEN AND
THEIR QUALIFICATIONS SPECIFIED, WE SEE NO CONSTITUTIONAL WAY BY WHICH
EQUALITY OF VOTING POWER MAY BE EVADED."  GRAY V. SANDERS, 372 U.S.
368, 381 (1963); HADLEY V. JUNIOR COLLEGE DISTRICT, 397 U.S. 50, 59
(1970).  TODAY THE COURT SUSTAINS A PROVISION THAT GIVES OPPONENTS OF
SCHOOL BOND ISSUES HALF AGAIN THE VOTING POWER OF PROPONENTS.  GORDON
V. LANCE, ANTE, P. 1. 

        II 

THE COURT JUSTIFIES THE WONDROUS RESULTS IN THESE CASES BY RELYING
ON DIFFERENT COMBINATIONS OF FACTORS.  ABATE V. MUNDT RELIES ON THE
NEED FOR FLEXIBILITY IN LOCAL GOVERNMENTAL ARRANGEMENTS, THE INTEREST
IN PRESERVING THE INTEGRITY OF POLITICAL SUBDIVISIONS, AND THE
LONGSTANDING TRADITION BEHIND NEW YORK'S PRACTICE IN THE LATTER
RESPECT.  THIS CASE FINDS ELEMENTARY PROBABILITY THEORY TOO SIMPLISTIC
AS A GUIDE TO RESOLUTION OF WHAT IS ESSENTIALLY A PRACTICAL QUESTION OF
POLITICAL POWER; THE OPINION RELIES ON THE LONG HISTORY OF MULTI-MEMBER
DISTRICTS IN THIS COUNTRY AND THE FEAR THAT "AFFIRMANCE OF THE DISTRICT
COURT WOULD SPAWN ENDLESS LITIGATION."  ANTE, AT 157.  GORDON V. LANCE
RLIES HEAVILY ON THE "FEDERAL ANALOGY" AND THE PREVALENCE OF SIMILAR
ANTI-MAJORITARIAN ELEMENTS IN THE CONSTITUTIONS OF THE SEVERAL STATES. 

TO MY MIND THE RELEVANCE OF SUCH CONSIDERATIONS AS THE FOREGOING IS
UNDENIABLE AND THEIR CUMULATIVE EFFECT IS UNANSWERABLE.  I CAN ONLY
MARVEL, THEREFORE, THAT THEY WERE DISMISSED, SINGLY AND IN COMBINATION,
IN A LINE OF CASES WHICH BEGAN WITH GRAY V. SANDERS, 372 U.S. 368
(1963), AND ENDED WITH HADLEY V. JUNIOR COLLEGE DISTRICT, 397 U.S. 50
(1970). 

THAT LINE OF CASES CAN BEST BE UNDERSTOOD, I THINK, AS REFLECTIONS
OF DEEP PERSONAL COMMITMENTS BY SOME MEMBERS OF THE COURT TO THE
PRINCIPLES OF PURE MAJORITARIAN DEMOCRACY.  THIS MAJORITARIAN STRAIN
AND ITS NONCONSTITUTIONAL SOURCES ARE MOST CLEARLY REVEALED IN GRAY V.
SANDERS, SUPRA, AT 381, WHERE MY BROTHER DOUGLAS, SPEAKING FOR THE
COURT, SAID:  "THE CONCEPTION OF POLITICAL EQUALITY FROM THE
DECLARATION OF INDEPENDENCE, TO LINCOLN'S GETTYSBURG ADDRESS, TO THE
FIFTEENTH, SEVENTEENTH, AND NINETEENTH AMENDMENTS CAN MEAN ONLY ONE
THING-- ONE PERSON, ONE VOTE."  IF THIS PHILOSOPHY OF MAJORITARIANISM
HAD BEEN GIVEN ITS HEAD, IT WOULD HAVE LED TO DIFFERENT RESULTS IN EACH
OF THE CASES DECIDED TODAY, FOR IT IS THE VERY NATURE OF THE PRINCIPLE
THAT IT REGARDS MAJORITY RULE AS AN IMPERATIVE OF SOCIAL ORGANIZATION,
NOT SUBJECT TO COMPROMISE IN FURTHERANCE OF MERELY POLITICAL ENDS.  IT
IS A PHILOSOPHY WHICH IGNORES OR OVERCOMES THE FACT THAT THE SCHEME OF
THE CONSTITUTION IS ONE NOT OF MAJORITARIAN DEMOCRACY, BUT OF FEDERAL
REPUBLICS, WITH EQUALITY OF REPRESENTATION A VALUE SUBORDINATE TO MANY
OTHERS, AS BOTH THE BODY OF THE CONSTITUTION AND THE FOURTEENTH
AMENDMENT ITSELF SHOW ON THEIR FACE.  SEE GENERALLY BAKER V. CARR, 369
U.S. 186, 297-324 (1962) (FRANKFURTER, J., DISSENTING). 
III 

IF MAJORITARIANISM IS TO BE REJECTED AS A RULE OF DECISION, AS THE
COURT IMPLICITLY REJECTS IT TODAY, THEN AN ALTERNATIVE PRINCIPLE MUST
BE SUPPLIED IF THIS EARLIER LINE OF CASES JUST REFERRED TO IS STILL TO
BE REGARDED AS GOOD LAW.  THE REAPPORTIONMENT OPINIONS OF THIS COURT
PROVIDE LITTLE HELP.  THEY SPEAK IN CONCLUSORY TERMS OF "DEBASEMENT" OR
"DILUTION" OF THE "VOTING POWER" OR "REPRESENTATION" OF CITIZENS
WITHOUT EXPLANATION OF WHAT THESE CONCEPTS ARE.  THE ANSWERS ARE HARDLY
APPARENT, FOR AS THE COURT OBSERVES TODAY: 

"AS OUR SYSTEM HAS IT, ONE CANDIDATE WINS, THE OTHERS LOSE. 
ARGUABLY THE LOSING CANDIDATES' SUPPORTERS ARE WITHOUT REPRESENTATION
SINCE THE MEN THEY VOTED FOR HAVE BEEN DEFEATED; ARGUABLY THEY HAVE
BEEN DENIED EQUAL PROTECTION OF THE LAWS SINCE THEY HAVE NO LEGISLATIVE
VOICE OF THEIR OWN . . . . BUT WE HAVE NOT YET DEEMED IT A DENIAL OF
EQUAL PROTECTION TO DENY LEGISLATIVE SEATS TO LOSING CANDIDATES EVEN IN
THOSE SO-CALLED 'SAFE' DISTRICTS WHERE THE SAME PARTY WINS YEAR AFTER
YEAR."  ANTE, AT 153.  A COHERENT AND REALISTIC NOTION OF WHAT IS MEANT
BY "VOTING POWER"  MIGHT HAVE RESTRAINED SOME OF THE EXTREME LENGTHS TO
WHICH THIS COURT HAS GONE IN PURSUIT OF THE WILL-O'-THE-WISP OF "ONE
MAN, ONE VOTE." 

AN INTERESTING ILLUSTRATION OF THE LIGHT WHICH A NOT IMPLAUSIBLE
DEFINITION OF "VOTING POWER" CAN SHED ON REAPPORTIONMENT DOCTRINE IS
PROVIDED BY THE THEORETICAL MODEL CREATED BY PROFESSOR BANZHAF, TO
WHICH THE COURT REFERS, ANTE, AT 144-146.  /2/  THIS MODEL USES AS A
MEASURE OF VOTING POWER THE PROBABILITY THAT A GIVEN VOTER WILL CAST A
TIE-BREAKING BALLOT IN AN ELECTION.  TWO FURTHER ASSUMPTIONS ARE MADE:
FIRST, THAT THE VOTING HABITS OF ALL MEMBERS OF THE ELECTORATE ARE
ALIKE; AND SECOND, THAT EACH VOTER IS EQUALLY LIKELY TO VOTE FOR EITHER
CANDIDATE BEFORE HIM.  ON THESE ASSUMPTIONS, AND TAKING THE VOTING
POPULATION IN MARION COUNTY AS ROUGHLY 300,000, IT CAN BE SHOWN THAT
THE PROBABILITY OF AN INDIVIDUAL VOTER'S CASTING A DECISIVE VOTE IN A
GIVEN ELECTION IS APPROXIMATELY .00146.  THIS PROVIDES A STANDARD TO
WHICH "VOTING POWER" OF RESIDENTS IN OTHER DISTRICTS MAY BE COMPARED. 
SEE GENERALLY BANZHAF, MULTI-MEMBER ELECTORAL DISTRICTS-- DO THEY
VIOLATE THE "ONE MAN, ONE VOTE" PRINCIPLE, 75 YALE L.J. 1309 (1966). 

HOWEVER, PROFESSOR BANZHAF'S MODEL ALSO REVEALS THAT MINOR
VARIATIONS IN ASSUMPTIONS CAN LEAD TO MAJOR VARIATIONS IN RESULTS.  FOR
INSTANCE, IF THE TEMPER OF THE ELECTORATE CHANGES BY ONE-HALF OF ONE
PERCENT, /3/  EACH INDIVIDUAL'S VOTING POWER IS REDUCED BY A FACTOR OF
APPROXIMATELY 1,000,000.  OR IF A FEW OF THE 300,000 VOTERS ARE
COMMITTED-- SAY 15,000 TO CANDIDATE A AND 10,000 TO CANDIDATE B /4/  --
THE PROBABILITY OF ANY INDIVIDUAL'S CASTING A TIE-BREAKING VOTE IS
REDUCED BY A FACTOR ON THE ROUGH ORDER OF 120,000,000,000,000,000,000. 
OBVIOUSLY IN COMPARISION WITH THE ASTRONOMICAL DIFFERENCES IN VOTING
POWER WHICH CAN RESULT FROM SUCH MINOR VARIATION IN POLITICAL
CHARACTERISTICS, THE EFFECTS OF THE 12% AND 28% POPULATION VARIATIONS
CONSIDERED IN ABATE V. MUNDT AND IN THIS CASE ARE DE MINIMIS, AND EVEN
THE EXTREME DEVIATIONS FROM THE NORM PRESENTED IN BAKER V. CARR, 369
U.S. 186 (1962), AND AVERY V. MIDLAND COUNTY, 390 U.S. 474 (1968), PALE
INTO INSIGNIFICANCE.  /5/ 

IT IS NOT SURPRISING THEREFORE THAT THE COURT IN THIS CASE DECLINES
TO EMBRACE THE MEASURE OF VOTING POWER SUGGESTED BY PROFESSOR BANZHAF. 
BUT IT NEITHER SUGGESTS AN ALTERNATIVE NOR CONSIDERS THE CONSEQUENCES
OF ITS INABILITY TO MEASURE WHAT IT PURPORTS TO BE EQUALIZING.  SEE N.
2, SUPRA. INSTEAD IT BECOMES ENMESHED IN THE HAZE OF SLOGANS AND
NUMEROLOGY WHICH FOR 10 YEARS HAS OBSCURED ITS VISION IN THIS FIELD,
AND FINALLY REMANDS THE CASE "FOR FURTHER PROCEEDINGS CONSISTENT WITH
(ITS) OPINION."  ANTE, AT 163.  THIS INEXPLICIT MANDATE IS AT LEAST
SUBJECT TO THE INTERPRETATION THAT THE COURT BELOW IS TO INQUIRE INTO
SUCH MATTERS AS "THE ACTUAL INFLUENCE OF MARION COUNTY'S DELEGATION IN
THE INDIANA LEGISLATURE," ANTE, AT 147, AND THE POSSIBILITY OF
"RECURRING POOR PERFORMANCE BY MARION COUNTY'S DELEGATION WITH RESPECT
TO CENTER TOWNSHIP GHETTO," ANTE, AT 155, WITH A VIEW TO DETERMINING
WHETHER "ANY LEGISLATIVE SKIRMISH AFFECTING THE STATE OF INDIANA OR
MARION COUNTY IN PARTICULAR WOULD HAVE COME OUT DIFFERENTLY HAD MARION
COUNTY BEEN SUBDISTRICTED AND ITS DELEGATION ELECTED FROM SINGLE-MEMBER
DISTRICTS."  ANTE, AT 148.  IF THERE ARE LESS APPROPRIATE SUBJECTS FOR
FEDERAL JUDICIAL INQUIRY, THEY DO NOT COME READILY TO MIND.  THE
SUGGESTION IMPLICIT IN THE COURT'S OPINION THAT APPELLEES MAY
ULTIMATELY PREVAIL IF THEY CAN MAKE THEIR RECORD IN THESE AND OTHER
LIKE RESPECTS SHOULD BE RECOGNIZED FOR WHAT IT IS:  A MANIFESTATION OF
FRUSTRATION BY A COURT THAT HAS BECOME TRAPPED IN THE "POLITICAL
THICKET" AND IS LOOKING FOR THE WAY OUT. 

THIS CASE IS NOTHING SHORT OF A COMPLETE VINDICATION OF MR. JUSTICE
FRANKFURTER'S WARNING NINE YEARS AGO "OF THE MATHEMATICAL QUAGMIRE
(APART FROM DIVERS JUDICIALLY INAPPROPRIATE AND ELUSIVE DETERMINANTS)
INTO WHICH THIS COURT TODAY CATAPULTS THE LOWER COURTS OF THE
COUNTRY."  BAKER V. CARR, 369 U.S. 186, 268 (1962) (DISSENTING
OPINION).  WITH ALL RESPECT, IT ALSO BEARS WITNESS TO THE MORASS INTO
WHICH THE COURT HAS GOTTEN ITSELF BY DEPARTING FROM SOUND
CONSTITUTIONAL PRINCIPLE IN THE ELECTORAL FIELD.  SEE THE DISSENTING
OPINION OF MR. JUSTICE FRANKFURTER IN BAKER V. CARR, SUPRA, AND MY
SEPARATE OPINIONS IN REYNOLDS V. SIMS, 377 U.S. 533, 589 (1964), AND IN
OREGON V. MITCHELL, 400 U.S. 112, 152 (1970).  I HOPE THE DAY WILL COME
WHEN THE COURT WILL FRANKLY RECOGNIZE THE ERROR OF ITS WAYS IN EVER
HAVING UNDERTAKING TO RESTRUCTURE STATE ELECTORAL PROCESSES. 

I WOULD REVERSE THE JUDGMENT BELOW AND REMAND THE CASE TO THE
DISTRICT COURT WITH DIRECTIONS TO DISMISS THE COMPLAINT 

/1/  ABATE V. MUNDT, POST, P. 182; GORDON V. LANCE, ANTE, P. 1. 

/2/  THE COURT, THOUGH STATING THAT IT DOES "NOT QUARREL WITH
PLAINTIFFS'  MATHEMATICS," NEVERTHELESS IMPLIES THAT IT MAY BE IGNORED
BECAUSE "THE POSITION REMAINS A THEORETICAL ONE . . . AND DOES 'NOT
TAKE INTO ACCOUNT ANY POLITICAL OR OTHER FACTORS WHICH MIGHT AFFECT THE
ACTUAL VOTING POWER OF THE RESIDENTS, WHICH MIGHT INCLUDE PARTY
AFFILIATION, RACE, PREVIOUS VOTING CHARACTERISTICS OR ANY OTHER FACTORS
WHICH GO INTO THE ENTIRE POLITICAL VOTING SITUATION.'"  ANTE, AT 145,
146.  PRECISELY THE SAME CRITICISM APPLIES, WITH EVEN GREATER FORCE, TO
THE "ONE MAN, ONE VOTE" OPINIONS OF THIS COURT.  THE ONLY RELEVANT
DIFFERENCE BETWEEN THE ELEMENTARY ARITHMENTIC ON WHICH THE COURT RELIES
AND THE ELEMENTARY PROBABILITY THEORY ON WHICH PROFESSOR BANZHAF RELIES
IS THAT CALCULATIONS IN THE LATTER FIELD CANNOT BE DONE ON ONE'S
FINGERS. 

/3/  MORE PRECISELY, THE RESULT FOLLOWS IF THE SECOND OF PROFESSOR
BANZHAF'S ASSUMPTIONS IS ALTERED SO THAT THE PROBABILITY OF EACH
VOTER'S SELECTING CANDIDATE A OVER CANDIDATE B IS 50.5% RATHER THAN
50%. 

/4/  THE TEXT ASSUMES THAT EACH OF THE REMAINING 275,000 VOTERS IS
EQUALLY LIKELY TO VOTE FOR A OR FOR B. 

/5/  "THERE IS SOMETHING FASCINATING ABOUT SCIENCE.  ONE GETS SUCH
WHOLESALE RETURNS OF CONJECTURE OUT OF SUCH A TRIFLING INVESTMENT OF
FACT."  MARK TWAIN, LIFE ON THE MISSISSIPPI 109 (HARPER & ROW, 1965). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL CONCUR, DISSENTING IN PART AND CONCURRING IN THE RESULT IN
PART. 

THE INDIANA CONSTITUTION PROVIDES THAT "NO COUNTY, FOR SENATORIAL
APPORTIONMENT SHALL EVER BE DIVIDED."  ART. 4, SEC. 6.  THE LEGISLATIVE
APPORTIONMENT STATUTES IN INDIANA WHICH IMPLEMENTED THAT PROVISION GAVE
MARION COUNTY EIGHT SENATORS, ALL ELECTED AT LARGE.  THE STATUTES ALSO
GAVE THE COUNTY 15 AT-LARGE REPRESENTATIVES. 

MARION COUNTY IS THE MOST POPULOUS IN THE STATE.  IT CONTAINS NINE
TOWNSHIPS AND INCLUDES THE CITY OF INDIANAPOLIS.  ON JANUARY 9, 1969,
THIS LAWSUIT WAS COMMENCED TO REQUIRE A SUBDIVISION OF THE MULTI-MEMBER
DISTRICTING PRACTICES IN MARION COUNTY.  CERTAIN VOTERS CONTENDED THAT
THE MULTI-MEMBER DISTRICT DEPRIVED THEM OF EQUAL PROTECTION OF THE LAWS
BECAUSE IT DILUTED THE VOTING RIGHTS OF AN IDENTIFIABLE RACIAL MINORITY
WITHIN THE COUNTY. 

TO DETERMINE IF THERE WAS AN IDENTIFIABLE MINORITY WITHIN THE COUNTY
THE DISTRICT COURT ADOPTED THE FOLLOWING DEFINITION OF "GHETTO": 

"A PRIMARILY RESIDENTIAL SECTION OF AN URBAN AREA CHARACTERIZED BY A
HIGHER RELATIVE DENSITY OF POPULATION AND A HIGHER RELATIVE PROPORTION
OF SUBSTANDARD HOUSING THAN IN THE OVERALL METROPOLITAN AREA WHICH IS
INHABITED PREDOMINANTLY BY MEMBERS OF A RACIAL, ETHNIC, OR OTHER
MINORITY GROUP, MOST OF WHOM ARE OF OF LOWER SOCIOECONOMIC STATUS THAN
THE PREVAILING STATUS IN THE METROPOLITAN AREA AND WHOSE RESIDENCE IN
THE SECTION IS OFTEN THE RESULT OF SOCIAL, LEGAL, OR ECONOMIC
RESTRICTIONS OR CUSTOM."  305 F.SUPP.  1364, 1373.  APPLYING THE
DEFINITION TO THE EXTENSIVE EVIDENCE IN THE CASE, THE DISTRICT COURT
FOUND THERE WAS AN IDENTIFIABLE GHETTO AREA WITHIN CENTER TOWNSHIP. 
THE COURT THEN CONTRASTED THE RESIDENCE OF THOSE ELECTED TO THE STATE
HOUSE AND SENATE FROM MARION COUNTY SINCE 1960.  THERE HAD BEEN 21
ELECTED SENATORS; TWO CAME FROM CENTER TOWNSHIP, 11 FROM WASHINGTON
TOWNSHIP.  OF THE 67 REPRESENTATIVES, 12 CAME FROM CENTER TOWNSHIP AND
28 FROM WASHINGTON TOWNSHIP. 

THE DISTRICT COURT CONCLUDED: 

"THE INEQUITY OF REPRESENTATION BY RESIDENCE OF LEGISLATORS

  BETWEEN WASHINGTON AND CENTER TOWNSHIPS IS APPARENT . . . .

  WASHINGTON TOWNSHIP, THE UPPER MIDDLE-CLASS AND WEALTHY SUBURBAN

  AREA HAVING 14.64% OF THE POPULATION OF MARION COUNTY, WAS THE

  RESIDENCE OF 52.27% OF THE SENATORS AND 41.79% OF THE

  REPRESENTATIVES.  CENTER TOWNSHIP, HAVING 41.14% OF THE

  POPULATION (APPROXIMATELY THREE TIMES AS LARGE), WAS THE

  RESIDENCE OF 9.51% OF THE SENATORS (LESS THAN ONE-FIFTH OF

  WASHINGTON TOWNSHIP) AND 17.91% OF THE REPRESENTATIVES

  (APPROXIMATELY THREE-SEVENTHS OF WASHINGTON TOWNSHIP)."  305

  F.SUPP.,AT 1385. 

THE COURT FOUND THAT THE VOTING STRENGTH OF THE COGNIZABLE ELEMENT
WITHIN CENTER TOWNSHIP WAS SEVERELY MINIMIZED, THAT MINIMIZATION
OCCURRED BY VIRTUE OF THE STRONG CONTROL WHICH THE POLITICAL PARTIES
EXERT OVER THE NOMINATION PROCESS IN MARION COUNTY, AND THAT BLACK
VOTERS WITHIN CENTER TOWNSHIP ARE UNABLE TO BE ASSURED OF THE
OPPORTUNITY OF VOTING FOR PROSPECTIVE LEGISLATORS OF THEIR CHOICE.  THE
COURT FURTHER FOUND THAT "(UNDER THE EVIDENCE BEFORE THE COURT SUCH
INVIDIOUS EFFECTS WILL CONTINUE SO LONG AS MARION COUNTY IS APPORTIONED
INTO LARGE SENATE AND HOUSE MULTI-MEMBER DISTRICTS."  305 F.SUPP.,AT
1399. 

        I 

BASED ON ITS FINDINGS THE DISTRICT COURT HELD THE THEN INDIANA
APPORTIONMENT ACTS UNCONSTITUTIONAL AND ENJOINED THEIR ENFORCEMENT. 
THE COURT THEN DETERMINED THAT TO REDISTRICT MARION COUNTY ALONE WOULD
LEAVE CONSTITUTIONALLY IMPERMISSIBLE POPULATION VARIANCES BETWEEN THE
NEWLY CREATED DISTRICTS AND THE OTHER DISTRICTS IN THE STATE AND
THEREFORE REDISTRICTING THE ENTIRE STATE WAS NECESSARY.  IN ITS
REDISTRICTING PLAN THE DISTRICT COURT DIVIDED WELL OVER HALF OF THE
COUNTIES IN THE STATE DESPITE ART. 4, SEC. 6, OF THE INDIANA
CONSTITUTION.  MARION COUNTY ITSELF WAS DIVIDED INTO SEVEN SEPARATE
SENATORIAL DISTRICTS AND AN EIGHTH WAS CREATED BY TAKING PART OF MARION
AND PARTS OF JOHNSON AND MORGAN COUNTIES.  THE COURT MANDATED THAT THE
1970 ELECTION BE CONDUCTED IN ACCORDANCE WITH THE PLAN IT APPROVED AND
THE COURT RETAINED JURISDICTION FOR THE PURPOSE OF PASSING ON ANY
FUTURE CLAIMS OF UNCONSTITUTIONALITY MADE BY THE PLAINTIFFS AGAINST ANY
FUTURE LEGISLATIVE APPORTIONMENT PLAN PROMULGATED.  THIS COURT STAYED
THE DISTRICT COURT'S ORDER.  396 U.S. 1055. 

THIS SUIT WAS COMMENCED SOME 22 MONTHS BEFORE THE 1970 ELECTION IN
AMPLE TIME FOR A DECISION ON THE MERITS.  THE PLAINTIFFS IN FACT WON
BELOW BUT THIS COURT STAYED THE ORDER.  NOW THE ELECTION HAS BEEN HELD
AND A FEDERAL DECENNIAL CENSUS HAS BEEN TAKEN.  UNDER THE COMPULSION OF
THE DECREE OF THE DISTRICT COURT THE LEGISLATURE HAS ADOPTED SINGLE
MEMBER DISTRICTS FOR THE ENTIRE STATE.  BUT ABSENT A FEDERAL DECREE
THEY WOULD CERTAINLY FOLLOW THE MANDATE OF THE INDIANA CONSTITUTION. 

AS THE COURT SAYS, THE FACT THAT THE 1970 ELECTION IS HISTORY DOES
NOT AFFECT THE UNDERLYING CLAIM IN THIS CASE.  WE HAVE A FINDING OF
FACT THAT AN IDENTIFIABLE RACIAL MINORITY HAS ITS VOTING STRENGTH
SEVERLY MINIMIZED BY THE OPERATION OF MULTI-MEMBER DISTRICTS.  WE ALSO
HAVE A FINDING THAT THE INVIDIOUS EFFECTS WILL CONTINUE SO LONG AS
MARION COUNTY HAS MULTI-MEMBER DISTRICTS.  UNDER THE ORDER OF THE
DISTRICT COURT (ABSENT OUR STAY) THE 1965 APPORTIONMENT STATUTES COULD
NOT BE USED.  THE DISTRICT COURT WOULD RETAIN JURISDICTION AND NO
ATTEMPT BY THE STATE LEGISLATURE TO APPLY ART. 4, SEC. 6, OF THE
CONSTITUTION WOULD BE SUCCESSFUL BECAUSE UNDER THE CONCLUSIONS OF THE
DISTRICT COURT IT IS UNCONSTITUTIONAL AS APPLIED TO MARION COUNTY.  SEE
REYNOLDS V. SIMS, 377 U.S. 533, 584.  THERE IS NO CHANCE THAT THE
INDIANA CONSTITUTION CAN BE AMENDED IN TIME TO UNDO THE HARM.  BY ITS
OWN PROVISIONS ANY AMENDMENT REQUIRES A MAJORITY VOTE IN EACH HOUSE OF
TWO CONSECUTIVE GENERAL ASSEMBLIES; IT IS THEN REFERRED TO THE VOTERS
AND RATIFIED BY MAJORITY VOTE.  ART. 16, SEC. 1.     THE INDIANA
CONSTITUTION REQUIRES "AN ENUMERATION . . . OF ALL MALE INHABITANTS
OVER THE AGE OF TWENTY-ONE YEARS" TO BE MADE EVERY SIX YEARS.  ART. 4,
SEC. 4.  THEN AT THE NEXT LEGISLATIVE SESSION, THE GENERAL ASSEMBLY IS
DIRECTED TO REAPPORTION THE STATE ACCORDING TO THE NUMBER OF MALE
INHABITANTS ABOVE THE AGE OF 21.  ART. 4, SEC. 5.  THESE PROVISIONS
FELL INTO DISUSE AND THE LAST ENUMERATION PROVIDED FOR WAS IN 1921 AND,
PRIOR TO BAKER V. CARR, 369 U.S. 186, THE LEGISLATURE HAD NOT BEEN
APPORTIONED SINCE THAT TIME.  SEE MATTHEWS V. HANDLEY, 179 F.SUPP.  470
(ND IND. 1959); FRUIT V. METROPOLITAN SCHOOL DISTRICT, 241 IND. 621,
172 N.E.2D 864.  INDIANA COURTS HAD NO POWER TO REQUIRE REAPPORTIONING
UNDER THE STATE CONSTITUTION.  PARKER V. STATE EX REL. POWELL, 133 IND.
178, 32 N.E. 836. 

IN 1969 THE LEGISLATURE INITIALLY APPROVED PROPOSED CONSTITUTIONAL
CHANGES TO THOSE TWO SECTIONS WHICH WILL PROVIDE FOR USING THE FEDERAL
DECENNIAL CENSUS FOR INDIANA AND APPORTIONING THE STATE IMMEDIATELY
THEREAFTER, SUCH APPORTIONMENT TO REMAIN UNALTERED UNTIL THE NEXT
DECENNIAL CENSUS.  S. J. RES. NO. 26, ACTS 1969, C. 464.  THE PROVISION
MUST STILL BE APPROVED BY THE 1971 GENERAL ASSEMBLY AND A MAJORITY OF
THE VOTERS.  SEE ART. 16, SEC. 1, OF THE INDIANA CONSTITUTION.  AT THE
TIME THIS CASE WAS ARGUED UNDER THE INDIANA APPORTIONMENT ACT OF 1965
(2D SPEC. SESS.), C. 4, SEC. 1, AND C. 5, SEC. 1, THE 1960 DECENNIAL
CENSUS WAS ACCEPTED AS CORRECT. 

NOR DOES THE FACT THAT THE STATE LEGISLATURE HAS PASSED A
REPPORTIONMENT PLAN ABOLISHING MULTI-MEMBER DISTRICTS THROUGHOUT THE
ENTIRE STATE MOOT THIS CASE.  BUT FOR THE DECISION BELOW NO SUCH PLAN
WOULD HAVE BEEN FORTHCOMING.  THE PLAN IS IN PLAIN VIOLATION OF THE
STATE CONSTITUTION AND IN VIEW OF THE FACT THAT NO INDIANA LEGISLATURE
HAS EVER VIOLATED THAT PROVISION OF THE STATE CONSTITUTION BEFORE IT IS
OBVIOUS THAT THE IMPETUS CAME FROM THE OUTSIDE.  /1/  THE PROVISION OF
THE STATE CONSTITUTION FORBIDDING DIVIDING A COUNTY FOR SENATORIAL
APPORTIONMENT IS UNCONSTITUTIONAL UNDER THE FEDERAL CONSTITUTION AS
APPLIED TO MARION COUNTY.  SEE REYNOLDS V. SIMS, 377 U.S.,AT 584. 
MOOTING THE CASE WOULD ACCOMPLISH NOTHING.  IF WE WERE TO MOOT IT, THE
STATE COURTS WOULD LIKELY VOID THE 1971 APPORTIONMENT PLAN AS VIOLATIVE
OF THE STATE CONSTITUTION AND THEN THE PARTIES WOULD BE RIGHT BACK
WHERE THEY WERE AT THE BEGINNING OF THIS LAWSUIT.  IT IS APPARENT THIS
CONTROVERSY REMAINS ALIVE AND THAT THERE IS NO REASON TO WAIT TWO OR
MORE YEARS IN ORDER TO DECIDE IT IN A CASE GROWING OUT OF A STATE COURT
DETERMINATION ON THE CONSTITUTIONALITY OF SINGLE-MEMBER DISTRICTS IN
MARION COUNTY, AS WOULD HAPPEN SHOULD WE VACATE THE DECREE BELOW AND
FORCE THE PARTIES TO ANOTHER FORUM FOR ANOTHER ROUND OF LITIGATION ON
THE SAME ISSUE. 

THE CONSTITUTIONAL PROVISION WHICH NOW REQUIRES MULTI-MEMBER
SENATORIAL DISTRICTS HAS BEEN IN INDIANA'S CONSTITUTION FROM THE DATE
OF ENACTMENT-- 1851.  AND THE GHETTO VOTERS' POSITION AS A CLASS WILL
NOT CHANGE.  THE FINDINGS OF THE DISTRICT COURT CLEARLY STATE THE
INVIDIOUS EFFECTS WILL LAST SO LONG AS MULTI-MEMBER DISTRICTING LASTS. 
THE DISTRICT COURT FOUND THAT "TO REDISTRICT MARION COUNTY ALONE, TO
PROVIDE SINGLE-MEMBER DISTRICTS OR ANY OTHER TYPE OF DISTRICTS MEETING
CONSTITUTIONAL STANDARDS, WOULD LEAVE IMPERMISSIBLE POPULATION
VARIATIONS BETWEEN THE NEW MARION COUNTY DISTRICTS AND OTHER DISTRICTS
IN THE STATE."  305 F.SUPP.,AT 1399.  ACCORDINGLY THE COURT
REDISTRICTED THE ENTIRE STATE.  /2/  THE DECISION TO REDISTRICT THE
STATE AND THE FINDING OF MINIMIZATION OF THE GHETTO VOTERS' STRENGTH
ARE INTERTWINED.  AS THE DISTRICT COURT STATED, THE "PORTIONS OF THE .
. . STATUTES RELATING TO MARION COUNTY" WERE FOUND TO BE NOT SEVERABLE
FROM THE FULL BODY OF THE STATUTES.  305 F.SUPP.,AT 1399.  THERE IS NO
SHOWING HERE THAT THAT FINDING IS EVEN PARTIALLY ERRONEOUS LET ALONE
CLEARLY ERRONEOUS.  A DECISION TO REDISTRICT MARION COUNTY INVOLVES THE
ENTIRE STATE; EACH PROPERLY MUST BE CONSIDERED WITH THE OTHER. 

    II 

THE MERITS OF THE CASE GO TO THE QUESTION RESERVED IN FORTSON V.
DORSEY, 379 U.S. 433, 439, AND IN WELLS V. ROCKEFELLER, 394 U.S. 542,
544, WHETHER A GERRYMANDER CAN BE "CONSTITUTIONALLY IMPERMISSIBLE." 
THE QUESTION OF THE GERRYMANDER /3/  IS THE OTHER HALF OF REYNOLDS V.
SIMS, 377 U.S. 533.  FAIR REPRESENTATION OF VOTERS IN A LEGISLATIVE
ASSEMBLY-- ONE MAN, ONE VOTE-- WOULD SEEM TO REQUIRE (1) SUBSTANTIAL
EQUALITY OF POPULATION WITHIN EACH DISTRICT AND (2) THE AVOIDANCE OF
DISTRICT LINES THAT WEIGH THE POWER OF ONE RACE MORE HEAVILY THAN
ANOTHER.  THE LATTER CAN BE DONE-- AND IS DONE-- BY ASTUTE DRAWING OF
DISTRICT LINES THAT MAKES THE DISTRICT EITHER HEAVILY DEMOCRATIC OR
HEAVILY REPUBLICAN AS THE CASE MAY BE.  LINES MAY BE DRAWN SO AS TO
MAKE THE VOICE OF ONE RACIAL GROUP WEAK OR STRONG, AS THE CASE MAY BE. 

THE PROBLEM OF THE GERRYMANDER IS HOW TO DEFEAT OR CIRCUMVENT THE
SENTIMENTS OF THE COMMUNITY.  THE PROBLEM OF THE LAW IS HOW TO PREVENT
IT.  AS MR. JUSTICE HARLAN ONCE SAID "A COMPUTER MAY GRIND OUT DISTRICT
LINES WHICH CAN TOTALLY FRUSTRATE THE POPULAR WILL ON AN OVERWHELMING
NUMBER OF CRITICAL ISSUES."  WELLS V. ROCKEFELLER, 394 U.S.,AT 551
(DISSENTING).  THE EASY DEVICE IS THE GERRYMANDER.  THE DISTRICT COURT
FOUND THAT IT OPERATED IN THIS CASE TO DILUTE THE VOTE OF THE BLACKS. 

        III 

IN GOMILLION V. LIGHTFOOT, 364 U.S. 339, WE DEALT WITH THE PROBLEM
OF A STATE INTENTIONALLY MAKING A DISTRICT SMALLER TO EXCLUDE BLACK
VOTERS.  HERE WE HAVE ALMOST THE CONVERSE PROBLEM.  THE STATE'S
DISTRICTS SURROUND THE BLACK VOTING AREA WITH WHITE VOTERS. 

GOMILLION, INVOLVING THE TURNING OF THE CITY OF TUSKEGEE FROM A
GEOGRAPHICAL SQUARE "TO AN UNCOUTH TWENTY-EIGHT-SIDED FIGURE," 364
U.S.,AT 340, WAS ONLY ONE OF OUR CASES WHICH DEALT WITH ELEVATING THE
POLITICAL INTERESTS OF ONE IDENTIFIABLE GROUP OVER THOSE OF ANOTHER. 
GEORGIA'S COUNTY UNIT SYSTEM WAS SIMILAR, ALTHOUGH RACE WAS NOT A
FACTOR.  UNDER THE GEORGIA SYSTEM A FARMER IN A RURAL COUNTY COULD HAVE
UP TO 99 TIMES THE VOTING POWER OF HIS URBAN-DWELLING BROTHER.  SEE
GRAY V. SANDERS, 372 U.S. 368.  HERE THE DISTRICTING PLAN OPERATES TO
FAVOR "UPPER-MIDDLE CALSS AND WEALTHY" SUBURBANITES.  305 F.SUPP.,AT
1385. 

A SHOWING OF RACIAL MOTIVATION IS NOT NECESSARY WHEN DEALING WITH
MULTI-MEMBER DISTRICTS.  BURNS V. RICHARDSON, 384 U.S. 73, 88; FORTSON
V. DORSEY, 379 U.S.,AT 439.  ALTHOUGH THE OLD APPORTIONMENT PLAN WHICH
IS IN FULL HARMONY WITH THE STATE'S 1851 CONSTITUTION, MAY NOT BE
RACIALLY MOTIVATED, THE TEST FOR MULTI-MEMBER DISTRICTS IS WHETHER
THERE ARE INVIDIOUS EFFECTS. 

THAT RULE IS BUT AN APPLICATION OF A BASIC PRINCIPLE APPLIED IN
HUNTER V. ERICKSON, 393 U.S. 385.  THERE A CITY PASSED A HOUSING LAW
WHICH PROVIDED THAT BEFORE AN ORDINANCE REGULATING THE SALE OR LEASE OF
REALTY ON THE BASIS OF RACE COULD BECOME EFFECTIVE IT MUST BE APPROVED
BY A MAJORITY VOTE.  THUS, THE PROTECTION OF MINORITY INTERESTS BECAME
MUCH MORE DIFFICULT.  WE HELD THAT A STATE OR A STATE AGENCY COULD NOT
IN ITS VOTING SCHEME SO DISADVANTAGE BLACK INTERESTS. 

MULTI-MEMBER DISTRICTS ARE NOT PER SE UNCONSTITUTIONAL.  FORTSON V.
DORSEY, 379 U.S.,AT 439.  IN THAT CASE WE EXPRESSLY RESERVED JUDGMENT
ON THE QUESTION OF WHETHER A MULTI-MEMBER DISTRICTING PLAN WHICH
OPERATED "TO MINIMIZE OR CANCEL OUT THE VOTING STRENGTH OF RACIAL OR
POLITICAL ELEMENTS OF THE VOTING POPULATION" COULD PASS CONSTITUTIONAL
MUSTER.  IBID. 

IN BURNS V. RICHARDSON, SUPRA, WE AGAIN CONSIDERED THE PROBLEMS OF
MULTI-MEMBER DISTRICTS.  THE DOUBTS NOTED IN FORTSON V. DORSEY WERE
RESOLVED AND WE STATED THAT ASSUMING THE REQUIREMENTS OF REYNOLDS V.
SIMS, 377 U.S. 533, WERE SATISFIED, MULTI-MEMBER DISTRICTS ARE
UNCONSTITUTIONAL "ONLY IF IT CAN BE SHOWN THAT 'DESIGNEDLY OR
OTHERWISE' . . . (SUCH A DISTRICT WOULD OPERATE) TO MINIMIZE OR CANCEL
OUT THE VOTING STRENGTH OF RACIAL OR POLITICAL ELEMENTS OF THE VOTING
POPULATION."  384 U.S.,AT 88.  WE WENT ON TO SUGGEST HOW THE BURDEN OF
PROOF COULD BE MET. 

     IT MAY BE THAT THIS INVIDIOUS EFFECT CAN MORE EASILY BE SHOWN

  IF, IN CONTRAST TO THE FACTS IN FORTSON, DISTRICTS ARE LARGE IN

  RELATION TO THE TOTAL NUMBER OF LEGISLATORS, IF DISTRICTS ARE NOT

  APPROPRIATELY SUBDISTRICTED TO ASSURE DISTRIBUTION OF LEGISLATORS

  THAT ARE RESIDENT OVER THE ENTIRE DISTRICT, OR IF SUCH DISTRICTS

  CHARACTERIZE BOTH HOUSES OF A BICAMERAL LEGISLATURE RATHER THAN

  ONE."  IBID. 

THESE FACTORS ARE ALL PRESENT IN THIS CASE.  BETWEEN THE LARGEST
(MARION) AND SECOND LARGEST (LAKE) COUNTIES IN THE STATE, 26% OF EACH
HOUSE OF THE LEGISLATURE IS CONTROLLED.  THERE IS NO SUBDISTRICTING
UNDER THE INDIANA PLAN.  CF. DUSCH V. DAVIS, 387 U.S. 112.  AND MULTI
MEMBER DISTRICTS ARE USED IN BOTH HOUSES OF THE LEGISLATURE. 

IN BOTH FORTSON AND BURNS WE DEMANDED THAT THE INVIDIOUS EFFECTS OF
MULTI-MEMBER DISTRICTS APPEAR FROM EVIDENCE IN THE RECORD.  HERE THAT
DEMAND IS SATISFIED BY (1) THE SHOWING OF AN IDENTIFIABLE VOTING GROUP
LIVING IN CENTER TOWNSHIP, (2) THE SEVERE DISCREPANCIES OF RESIDENCY OF
ELECTED MEMBERS OF THE GENERAL ASSEMBLY BETWEEN CENTER AND WASHINGTON
TOWNSHIPS, CF. BRENNAN, J., DISSENTING IN ABATE V. MUNDT, POST, P. 187,
(3) THE FINDING OF PERVASIVE INFLUENCE OF THE COUNTY ORGANIZATIONS OF
THE POLITICAL PARTIES, AND (4) THE FINDING THAT LEGISLATORS FROM THE
COUNTY MAINTAIN "COMMON, UNDIFFERENTIATED" POSITIONS ON POLITICAL
ISSUES.  /4/  305 F.SUPP.,AT 1385. 

        IV 

LITTLE TIME NEED BE SPENT ON THE DISTRICT COURT'S DECISION TO
REDISTRICT THE ENTIRE STATE.  THE COURT FOUND THAT THERE WERE ALREADY
IMPERMISSIBLE POPULATION VARIANCES BETWEEN DISTRICTS UNDER THE CURRENT
APPORTIONMENT PLAN.  THE RATIO BETWEEN THE LARGEST AND SMALLEST SENATE
DISTRICT WAS 1.327 TO 1.  FOR THE HOUSE IT WAS 1.279 TO 1.  THE COURT
ALSO FOUND THAT THE NEW MARION COUNTY DISTRICTS WOULD ALSO HAVE
IMPERMISSIBLE POPULATION VARIANCES WHEN COMPARED TO EXISTING
DISTRICTS. 

ON THESE FACTS THE DEMANDS OF OUR DECISIONS REQUIRED REDISTRICTING. 
AS REYNOLDS V. SIMS SHOWED, THE STATE CONSTITUTION MUST GIVE WAY TO
REQUIREMENTS OF THE SUPREMACY CLAUSE WHEN THERE IS A CONFLICT WITH THE
FEDERAL CONSTITUTION.  AND, FINALLY, THE DISTRICT COURT'S OWN PLAN WAS
EXEMPLARY.  THE POPULATION RATIO FOR THE LARGEST AND SMALLEST SENATE
DISTRICTS WAS 1.017 TO 1 AND FOR THE HOUSE IT WAS 1.020 TO 1. 

        V 

IT IS SAID THAT IF WE PREVENT RACIAL GERRYMANDERING TODAY, WE MUST
PREVENT GERRYMANDERING OF ANY SPECIAL INTEREST GROUP TOMORROW, WHETHER
IT BE SOCIAL, ECONOMIC, OR IDEOLOGICAL.  I DO NOT AGREE.  OUR
CONSTITUTION HAS A SPECIAL THRUST WHEN IT COMES TO VOTING; THE
FIFTEENTH AMENEDMENT SAYS THE RIGHT OF CITIZENS TO VOTE SHALL NOT BE
"ABRIDGED" ON ACCOUNT OF "RACE, COLOR, OR PREVIOUS CONDITION OF
SERVITUDE." 

OUR CASES SINCE BAKER V. CARR HAVE NEVER INTIMATED THAT "ONE MAN,
ONE VOTE" MEANT "ONE WHITE MAN, ONE VOTE."  SINCE "RACE" MAY NOT BE
GERRYMANDERED, I THINK THE COURT EMPHASIZES THE IRRELEVANT WHEN IT SAYS
THAT THE EFFECT ON "THE ACTUAL VOTING POWER" OF THE BLACKS SHOULD FIRST
BE KNOWN.  THEY MAY BE ALL DEMOCRATIC OR ALL REPUBLICAN; BUT ONCE THEIR
IDENTITY IS PURPOSELY WASHED OUT OF THE SYSTEM, THE SYSTEM, AS I SEE
IT, HAS A CONSTITUTIONAL DEFECT.  IT IS ASKING THE IMPOSSIBLE FOR US TO
DEMAND THAT THE BLACKS FIRST SHOW THAT THE EFFECT OF THE SCHEME WAS TO
DISCOURAGE OR PREVENT POOR BLACKS FROM VOTING OR JOINING SUCH PARTY AS
THEY CHOSE.  ON THIS RECORD, THE VOTING RIGHTS OF THE BLACKS HAVE BEEN
"ABRIDGED," AS I READ THE CONSTITUTION. 

THE DISTRICT COURT HAS DONE AN OUTSTANDING JOB, BRINGING INSIGHT TO
THE PROBLEMS.  ONE CAN ALWAYS FAULT A LOWER COURT BY STATING
THEORETICAL ASPECTS OF APPORTIONMENT PLANS THAT MAY NOT HAVE BEEN
CONSIDERED.  THIS DISTRICT COURT ACTED EARNESTLY AND BOLDLY TO CORRECT
A FESTERING ELECTORAL SYSTEM.  I WOULD NOT EVEN VACATE AND REMAND SO
THAT IT COULD REVISE ITS PLAN IN ACCORDANCE WITH THE 1970 CENSUS
FIGURES.  THAT COURT HAS RETAINED JURISDICTION OF THE CAUSE AND HAS
SENSE ENOUGH TO UPDATE ITS OWN PLAN.  WE CAN MAKE THE CONTRIBUTION OF
THE DISTRICT COURT ENORMOUS AND ABIDING BY LEAVING IT THE INITIATIVE TO
CARRY OUT THE MANDATE OF REYNOLDS V. SIMS. 

I WOULD AFFIRM THE JUDGMENT. 

/1/  WALLACE, LEGISLATIVE APPORTIONMENT IN INDIANA:  A CASE HISTORY,
42 IND.L.J. 6, 30 (1966). 

/2/  THE DISTRICT COURT ALSO FOUND INDEPENDENT OF THE NEW DISTRICTS
THAT THERE WERE IMPERMISSIBLE POPULATION VARIANCES IN THE INDIANA
APPORTIONMENT.  THE RATIO BETWEEN THE LARGEST AND SMALLEST SENATE
DISTRICT WAS 1.327 TO 1.  FOR THE HOUSE IT WAS 1.279 TO 1.  UNDER THE
PLAN PROMULGATED BY THE DISTRICT COURT THESE WERE REDUCED TO 1.017 TO 1
AND 1.020 TO 1 RESPECTIVELY. 

/3/  SEE TYLER & WELLS, THE NEW GERRYMANDER THREAT, AFL-CIO AMERICAN
FEDERATIONIST 1 (FEB. 1971). 

/4/  THE THREE-JUDGE COURT "EMPHASIZED THAT THE BLACK PLAINTIFFS
WERE MEMBERS OF AN IDENTIFIABLE INTEREST GROUP WHOSE VOTING STRENGTH
HAD BEEN MINIMIZED BY THE MULTI-MEMBER DISTRICTING SCHEME.  THEY WERE
NOT ONLY UNABLE TO ELECT A LEGISLATOR WHO WAS ATTUNED TO THEIR
INTERESTS, BUT WERE ALSO SADDLED WITH LAWMAKERS WHO REFLECTED WHITE
SUBURBAN IDEOLOGY AND WERE CONTROLLED BY POLITICAL LEADERS."  NOTE,
CHAVIS V. WHITCOMB:  APPORTIONMENT, GERRYMANDERING, AND BLACK VOTING
RIGHTS, 24 RUTGERS L.REV.  521, 533 (1970). 

WILLIAM F. THOMPSON, ASSISTANT ATTORNEY GENERAL OF INDIANA, ARGUED
THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEFS WERE THEODORE L.
SENDAK, ATTORNEY GENERAL, AND RICHARD C. JOHNSON, CHIEF DEPUTY ATTORNEY
GENERAL. 

JAMES MANAHAN ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
WERE JAMES BEATTY AND JOHN BANZHAF III. 

WILLIAM J. SCOTT, ATTORNEY GENERAL, AND FRANCIS C. CROWE AND HERMAN
TAVINS, ASSISTANT ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF
ILLINOIS AS AMICUS CURIAE URGING REVERSAL, JOINED BY THE FOLLOWING
ATTORNEYS GENERAL:  MACDONALD GALLION OF ALABAMA, G. KENT EDWARDS OF
ALASKA, GARY K. NELSON OF ARIZONA, DUKE W. DUNBAR OF COLORADO, RICHARD
C. TURNER OF IOWA, A. F. SUMMER OF MISSISSIPPI, ROBERT L. WOODAHL OF
MONTANA, GORDON MYDLAND OF SOUTH DAKOTA, CRAWFORD C. MARTIN OF TEXAS,
VERNON B. ROMNEY OF UTAH, AND CHAUNCEY H. BROWNING OF WEST VIRGINIA. 
CHARLES MORGAN, JR., REBER F. BOULT, JR., DAVID J. VANN, AND MELVIN L.
WULF FILED A BRIEF FOR THE ACLU FOUNDATION, INC., ET AL. AS AMICI
CURIAE URGING AFFIRMANCE. 
..END :













ABATE V. MUNDT, 403 U.S. 182 


       ABATE ET AL. V. MUNDT ET AL.

        CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

        NO. 71.  ARGUED NOVEMBER 19, 1970-- DECIDED JUNE 7, 1971 


FOR MORE THAN A CENTURY THE ROCKLAND COUNTY BOARD OF SUPERVISORS
CONSISTED OF THE SUPERVISORS OF THE COUNTY'S FIVE TOWNS, RESULTING IN
EXTENSIVE FUNCTIONAL INTERRELATIONSHIPS AND INTERGOVERNMENTAL
COORDINATION BETWEEN COUNTY AND TOWNS.  SEVERE MALAPPORTIONMENT DUE TO
POPULATION GROWTH LED TO COURT-ORDERED REAPPORTIONMENT.  THE PROPOSED
PLAN, CHALLENGED BY PETITIONERS, PROVIDES FOR A COUNTY LEGISLATURE OF
18 MEMBERS CHOSEN FROM FIVE DISTRICTS, CORRESPONDING WITH THE TOWNS,
EACH DISTRICT BEING ASSIGNED LEGISLATORS IN THE PROPORTION OF ITS
POPULATION TO THAT OF THE SMALLEST TOWN.  THE PLAN PRODUCES A TOTAL
DEVIATION FROM EQUALITY OF 11.9%.  THE COURT OF APPEALS OF NEW YORK
UPHELD THE PLAN.  HELD:  IN LIGHT OF THE LONG TRADITION OF OVERLAPPING
FUNCTIONS AND DUAL PERSONNEL IN THE ROCKLAND COUNTY GOVERNMENT AND THE
FACT THAT THE PLAN DOES NOT CONTAIN ANY BUILT-IN BIAS FAVORING
PARTICULAR POLITICAL INTERESTS OR GEOGRAPHIC AREAS, THE PLAN IS NOT
VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.  PP. 185-187. 

25 N.Y.2D 309, 253 N.E.2D 189, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, WHITE, AND BLACKMUN, JJ., JOINED.  HARLAN, J., FILED A
STATEMENT CONCURRING IN THE RESULT.  STEWART, J., CONCURRED IN THE
JUDGMENT.  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS,
J., JOINED, POST, P. 187. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE, PETITIONERS CHALLENGE THE CONSTITUTIONALITY OF A
REAPPORTIONMENT PLAN PROPOSED IN RESPONSE TO BOTH FEDERAL AND STATE
COURT FINDINGS OF MALAPPORTIONMENT IN ROCKLAND COUNTY, NEW YORK.  THE
COURT OF APPEALS OF THE STATE OF NEW YORK UPHELD THE PLAN.  WE AFFIRM. 

FOR MORE THAN 100 YEARS, ROCKLAND COUNTY WAS GOVERNED BY A BOARD OF
SUPERVISORS CONSISTING OF THE SUPERVISORS OF EACH OF THE COUNTY'S FIVE
CONSTITUENT TOWNS.  THIS COUNTY LEGISLATURE WAS NOT SEPARATELY ELECTED;
RATHER, ITS MEMBERS HELD THEIR COUNTY OFFICES BY VIRTUE OF THEIR
ELECTION AS TOWN SUPERVISORS-- A PATTERN THAT TYPIFIED NEW YORK COUNTY
GOVERNMENT.  THE RESULT HAS BEEN A LOCAL STRUCTURE IN WHICH OVERLAPPING
PUBLIC SERVICES ARE PROVIDED BY THE TOWNS AND THEIR COUNTY WORKING IN
CLOSE COOPERATION.  FOR EXAMPLE, IN ROCKLAND COUNTY THE TOWNS AOPT
THEIR OWN BUDGETS AND SUBMIT THEM TO THE COUNTY WHICH LEVIES TAXES. 
THESE TAXES ARE BASED ON REAL PROPERTY ASSESSMENTS ESTABLISHED BY THE
TOWNS BUT EQUALIZED BY THE COUNTY BOARD.  SIMILARLY, PUBLIC SERVICES
SUCH AS WASTE DISPOSAL AND SNOW REMOVAL ARE PROVIDED THROUGH
COOPERATIVE EFFORTS AMONG THE MUNICIPALITIES.  THERE IS NO INDICATION
THAT THESE JOINT EFFORTS HAVE DECLINED IN IMPORTANCE; IN FACT,
RESPONDENTS STRENUOUSLY URGE THAT THE COUNTY'S RAPIDLY EXPANDING
POPULATION HAS AMPLIFIED THE NEED FOR TOWN AND COUNTY COORDINATION IN
THE FUTURE. 

THE COUNTY'S INCREASED POPULATION ALSO PRODUCED SEVERE
MALAPPORTIONMENT-- SO SEVERE THAT, IN 1966, A FEDERAL DISTRICT COURT
REQUIRED THAT THE COUNTY BOARD SUBMIT A REAPPORTIONMENT PLAN TO THE
ROCKLAND COUNTY VOTERS, LODICO V. BOARD OF SUPERVISORS, 256 F.SUPP. 
440 (SDNY).  PURSUANT TO THAT ORDER, THREE DIFFERENT PLANS WERE DEVISED
AND SUBMITTED TO THE ELECTORATE; BUT EACH WAS REJECTED AT THE POLLS. 
THE PRESENT ACTION WAS BROUGHT IN 1968 TO COMPEL THE BOARD TO
REAPPORTION.  AFTER ITS INITIAL PROPOSAL WAS REJECTED BY THE NEW YORK
COURTS, THE BOARD SUBMITTED THE PLAN THAT IS THE SUBJECT OF THIS
DECISION. 

THE CHALLENGED PLAN, BASED ON 1969 POPULATION FIGURES, PROVIDES FOR
A COUNTY LEGISLATURE COMPOSED OF 18 MEMBERS CHOSEN FROM FIVE
LEGISLATIVE DISTRICTS.  THESE DISTRICTS EXACTLY CORRESPOND TO THE
COUNTY'S FIVE CONSTITUENT TOWNS.  EACH DISTRICT IS ASSIGNED ITS
LEGISLATORS ACCORDING TO THE DISTRICT'S POPULATION IN RELATION TO THE
POPULATION OF THE SMALLEST TOWN, STONY POINT.  STONY POINT HAS A
POPULATION OF 12,114 AND IS ASSIGNED ONE REPRESENTATIVE IN THE COUNTY
LEGISLATURE.  THE NUMBER OF REPRESENTATIVES GRANTED THE OTHER DISTRICTS
IS DETERMINED BY DIVIDING THE POPULATION OF EACH BY THE POPULATION OF
THE SMALLEST TOWN.  FRACTIONAL RESULTS OF THE COMPUTATION ARE ROUNDED
TO THE NEAREST INTEGER, AND THIS NEED TO ROUND OFF "FRACTIONAL
REPRESENTATIVES" PRODUCES SOME VARIATIONS AMONG DISTRICTS IN TERMS OF
POPULATION PER LEGISLATOR.  UNDER 1969 POPULATION FIGURES, THE
ORANGETOWN DISTRICT IS THEMOST "UNDERREPRESENTED" (7.1%); WHILE
CLARKSTOWN IS THE MOST "OVERREPRESENTED" (4.8%).  THUS, THE PLAN
PRESENTLY PRODUCES A TOTAL DEVIATION FROM POPULATION EQUALITY OF
11.9%.  /1/  PETITIONERS ATTACK THESE DEVIATIONS AS UNCONSTITUTIONAL. 
/2/ 

IT IS WELL ESTABLISHED THAT ELECTORAL APPORTIONMENT MUST BE BASED ON
THE GENERAL PRINCIPLE OF POPULATION EQUALITY AND THAT THIS PRINCIPLE
APPLIES TO STATE AND LOCAL ELECTIONS, AVERY V. MIDLAND COUNTY, 390 U.S.
474, 481 (1968).  "MATHEMATICAL EXACTNESS OR PRECISION IS HARDLY A
WORKABLE CONSTITUTIONAL REQUIREMENT," REYNOLDS V. SIMS, 377 U.S. 533,
577 (1964), BUT DEVIATIONS FROM POPULATION EQUALITY MUST BE JUSTIFIED
BY LEGITIMATE STATE CONSIDERATIONS, SWANN V. ADAMS 385 U.S. 440, 444
(1967).  BECAUSE VOTING RIGHTS REQUIRE HIGHLY SENSITIVE SAFEGUARDS,
THIS COURT HAS CAREFULLY SCRUTINIZED STATE INTERESTS OFFERED TO JUSTIFY
DEVIATIONS FROM POPULATION EQUALITY. 

IN ASSESSING THE CONSTITUTIONALITY OF VARIOUS APPORTIONMENT PLANS,
WE HAVE OBSERVED THAT VIABLE LOCAL GOVERNMENTS MAY NEED CONSIDERABLE
FLEXIBILITY IN MUNICIPAL ARRANGEMENTS IF THEY ARE TO MEET CHANGING
SOCIETAL NEEDS, SAILORS V. BOARD OF EDUCATION, 387 U.S. 105, 110-111
(1967), AND THAT A DESIRE TO PRESERVE THE INTEGRITY OF POLITICAL
SUBDIVISIONS MAY JUSTIFY AN APPORTIONMENT PLAN WHICH DEPARTS FROM
NUMERICAL EQUALITY.  REYNOLDS V. SIMS, SUPRA, AT 578.  THESE
OBSERVATIONS, ALONG WITH THE FACTS THAT LOCAL LEGISLATIVE BODIES
FREQUENTLY HAVE FEWER REPRESENTATIVES THAN DO THEIR STATE AND NATIONAL
COUNTERPARTS AND THAT SOME LOCAL LEGISLATIVE DISTRICTS MAY HAVE A MUCH
SMALLER POPULATION THAN DO CONGRESSIONAL AND STATE LEGISLATIVE
DISTRICTS, LEND SUPPORT TO THE ARGUMENT THAT SLIGHTLY GREATER
PERCENTAGE DEVIATIONS MAY BE TOLERABLE FOR LOCAL GOVERNMENT
APPORTIONMENT SCHEMES, CF. IBID.  OF COURSE, THIS COURT HAS NEVER
SUGGESTED THAT CERTAIN GEOGRAPHIC AREAS OR POLITICAL INTERESTS ARE
ENTITLED TO DISPROPORTIONATE REPRESENTATION.  RATHER, OUR STATEMENTS
HAVE REFLECTED THE VIEW THAT THE PARTICULAR CIRCUMSTANCES AND NEEDS OF
LOCAL COMMUNITY AS A WHOLE MAY SOMETIMES JUSTIFY DEPARTURES FROM STRICT
EQUALITY. 

ACCORDINGLY, WE HAVE UNDERSCORED THE DANGER OF APPORTIONMENT
STRUCTURES THAT CONTAIN A BUILT-IN BIAS TENDING TO FAVOR PARTICULAR
GEOGRAPHIC AREAS OR POLITICAL INTERESTS OR WHICH NECESSARILY WILL TEND
TO FAVOR, FOR EXAMPLE, LESS POPULOUS DISTRICTS OVER THEIR MORE HIGHLY
POPULATED NEIGHBORS, SEE HADLEY V. JUNIOR COLLEGE DISTRICT, 397 U.S.
50, 57-58 (1970).  IN THIS CASE, WE HAVE NO SUCH INDIGENOUS BIAS; THERE
IS NO SUGGESTION THAT THE ROCKLAND COUNTY PLAN WAS DESIGNED TO FAVOR
PARTICULAR GROUPS.  IT IS TRUE THAT THE EXISTENCE OF ANY DEVIATIONS
FROM STRICT EQUALITY MEANS THAT CERTAIN DISTRICTS ARE ADVANTAGED AT
THAT POINT IN TIME; BUT, UNDER THIS PLAN, CHANGING DEMOGRAPHIC PATTERNS
MAY SHIFT ELECTORAL ADVANTAGES FROM ONE TOWN TO ANOTHER.  /3/ 

THE MERE ABSENCE OF A BUILT-IN BIAS IS NOT, OF COURSE, JUSTIFICATION
FOR A DEPARTURE FROM POPULATION EQUALITY.  IN THIS CASE, HOWEVER,
ROCKLAND COUNTY DEFENDS ITS PLAN BY ASSERTING THE LONG HISTORY OF, AND
PERCEIVED NEED FOR, CLOSE COOPERATION BETWEEN THE COUNTY AND ITS
CONSTITUENT TOWNS.  THE NEED FOR INTERGOVERNMENTAL COORDINATION IS
OFTEN GREATEST AT THE LOCAL LEVEL, AND WE HAVE ALREADY COMMENTED ON THE
EXTENSIVE FUNCTIONAL INTERRELATIONSHIPS BETWEEN ROCKLAND COUNTY AND ITS
TOWNS.  BUT BECAUSE ALMOST ALL GOVERNMENTAL ENTITIES ARE INTERRELATED
IN NUMEROUS WAYS, WE WOULD BE HESITANT TO ACCEPT THIS JUSTIFICATION BY
ITSELF.  TO US, THEREFORE, IT IS SIGNIFICANT THAT ROCKLAND COUNTY HAS
LONG RECOGNIZED THE ADVANTAGES OF HAVING THE SAME INDIVIDUALS OCCUPY
THE GOVERNING POSITIONS OF BOTH THE COUNTY AND ITS TOWNS.  FOR OVER 100
YEARS, THE FIVE TOWN SUPERVISORS WERE THE ONLY MEMBERS OF THE COUNTY
BOARD, A SYSTEM THAT NECESSARILY FOSTERED EXTENSIVE INTERDEPENDENCE
BETWEEN THE TOWNS AND THEIR COUNTY GOVERNMENT.  WHEN POPULATION SHIFTS
REQUIRED THAT SOME TOWNS RECEIVE A GREATER PORTION OF SEATS ON THE
COUNTY LEGISLATURE, ROCKLAND COUNTY RESPONDED WITH A PALN THAT
SUBSTANTIALLY REMEDIES THE MALAPPORTIONMENT AND THAT, BY PRESERVING AN
EXACT CORRESPONDENCE BETWEEN EACH TOWN AND ONE OF THE COUNTY
LEGISLATIVE DISTRICTS, CONTINUES TO ENCOURAGE TOWN SUPERVISORS TO SERVE
ON THE COUNTY BOARD. 

WE EMPHASIZE THAT OUR DECISION IS BASED ON THE LONG TRADITION OF
OVERLAPPING FUNCTIONS AND DUAL PERSONNEL IN ROCKLAND COUNTY GOVERNMENT
AND ON THE FACT THAT THE PLAN BEFORE US DOES NOT CONTAIN A BUILT-IN
BIAS TENDING TO FAVOR PARTICULAR POLITICAL INTERESTS OR GEOGRAPHIC
AREAS.  AND NOTHING WE SAY TODAY SHOULD BE TAKEN TO IMPLY THAT EVEN
THESE FACTORS COULD JUSTIFY SUBSTANTIALLY GREATER DEVIATIONS FROM
POPULATION EQUALITY.  BUT WE ARE NOT PREPARED TO HOLD THAT THE ROCKLAND
COUNTY REAPPORTIONMENT PLAN VIOLATES THE CONSTITUTION, AND, THEREFORE,
WE AFFIRM. 

/1/  ALL OF THE POPULATION FIGURES AND PERCENTAGE DEVIATIONS ARE:
(TABLE OMITTED) *1969 POPULATION DATA.  **(-- ) REFERS TO
"UNDERREPRESENTED." 

/2/  PETITIONERS ALSO ATTACK THE PLAN'S USE OF MULTI-MEMBER
DISTRICTS.  HOWEVER, THEY HAVE NOT SHOWN THAT THESE MULTI-MEMBER
DISTRICTS, BY THEMSELVES, OPERATE TO IMPAIR THE VOTING STRENGTH OF
PARTICULAR RACIAL OR POLITICAL ELEMENTS OF THE ROCKLAND COUNTY VOTING
POPULATION, SEE BURNS V. RICHARDSON, 384 U.S. 73, 88 (1966). 

/3/  NATURALLY, WE EXPRESS NO OPINION ON THE CONTENTION THAT, IN
FUTURE YEARS THE ROCKLAND COUNTY PLAN MAY PRODUCE SUBSTANTIALLY GREATER
DEVIATIONS THAN PRESENTLY EXIST.  SUCH QUESTIONS CAN BE ANSWERED IF AND
WHEN THEY ARISE. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT FOR THE REASONS STATED IN
HIS SEPARATE OPINION IN WHITCOMB V. CHAVIS, ANTE, P. 165. 

MR. JUSTICE STEWARD CONCURS IN THE JUDGMENT. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE COURT TODAY REAFFIRMS ALL OF THE PRINCIPLES OF REYNOLDS V. SIMS,
377 U.S. 533 (1964), AND ITS PROGENY BUT REFUSES, FOR A COMBINATION OF
REASONS UNPERSUASIVE TO ME, TO APPLY THOSE PRINCIPLES TO THIS
APPORTIONMENT SCHEME.  I BELIEVE THAT OUR RECENT DECISIONS IN AVERY V.
MIDLAND COUNTY, 390 U.S. 474 (1968); KIRKPATRICK V. PREISLER, 349 U.S.
526 (1969), AND WELLS V. ROCKEFELLER, 394 U.S. 542 (1969), REQUIRE
REVERSAL AND I THEREFORE DISSENT. 

THE COURT HOLDS THAT "A DESIRE TO PRESERVE THE INTEGRITY OF
POLITICAL SUBDIVISIONS MAY JUSTIFY AN APPORTIONMENT PLAN WHICH DEPARTS
FROM NUMERICAL EQUALITY.  REYNOLDS V. SIMS, SUPRA, AT 578."  ANTE, AT
185.  THE COURT'S RELIANCE ON REYNOLDS IS MISPLACED.  WE SAID THERE
THAT "IT MAY BE FEASIBLE TO USE POLITICAL SUBDIVISION LINES TO A
GREATER EXTENT IN ESTABLISHING STATE LEGISLATIVE DISTRICTS THAN IN
CONGRESSIONAL DISTRICTING."  377 U.S.,AT 578.  BUT WE WARNED THAT "(TO
DO SO WOULD BE CONSTITUTIONALLY VALID, SO LONG AS THE RESULTING
APPORTIONMENT WAS ONE BASED SUBSTANTIALLY ON POPULATION AND THE EQUAL
POPULATION PRINCIPLE WAS NOT DILUTED IN ANY SIGNIFICANT WAY."  IBID.
MOREOVER, THE COURT DID NOT AT THAT POINT IN TIME "DEEM IT EXPEDIENT .
. . TO ATTEMPT TO SPELL OUT ANY PRECISE CONSTITUTIONAL TESTS."  WE HAVE
DONE SO SINCE. 

IN KIRKPATRICK V. PREISLER, SUPRA, WE EXPLAINED THAT BECAUSE
"(TOLERATION OF EVEN SMALL DEVIATIONS DETRACTS FROM" THE CONSTITUTIONAL
COMMAND OF "EQUAL REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE," ONLY
THOSE "LIMITED POPULATION VARIANCES WHICH ARE UNAVOIDABLE DESPITE A
GOOD-FAITH EFFORT TO ACHIEVE ABSOLUTE EQUALITY, OR FOR WHICH
JUSTIFICATION IS SHOWN" ARE PERMISSIBLE.  394 U.S.,AT 531.  "(THE STATE
MUST JUSTIFY EACH VARIANCE, NO MATTER HOW SMALL."  IBID.  ON THE RECORD
PRESENTED HERE IT IS CLEAR THAT SUCH A GOOD-FAITH EFFORT HAS NOT BEEN
MADE.  NOR CAN IT BE SAID THAT SUFFICENT JUSTIFICATION HAS BEEN
DEMONSTRATED FOR AN 11.9% DEVIATION FROM VOTING EQUALITY. 

THE PLAN APPROVED HERE ALLEGEDLY REPRESENTS AS CLOSE TO MATHEMATICAL
EXACTNESS AS IS POSSIBLE WITHOUT CHANGING EXISTING POLITICAL BOUNDARIES
OR USING WEIGHTED OR FRACTIONAL VOTES.  BUT A PLAN DEVISED UNDER THESE
CONSTRAINTS IS NOT DEVISED IN THE GOOD-FAITH EFFORT THAT THE
CONSTITUTION REQUIRES.  IN WELLS V. ROCKEFELLER, SUPRA, WE STRUCK DOWN
A SIMILAR PLAN.  WE HELD THAT AN ATTEMPT TO MAINTAIN EXISTING COUNTY
LINES WAS INSUFFICIENT JUSTIFICATION FOR A 12.1% VARIANCE.  IN
EXPLANATION WE STATED THAT AN ATTEMPT "TO KEEP REGIONS WITH DISTINCT
INTERESTS INTACT" WAS INSUFFICIENT BECAUSE TO ACCEPT SUCH A
JUSTIFICATION "WOULD PERMIT GROUPS OF DISTRICTS WITH DEFINED INTEREST
ORIENTATIONS TO BE OVERREPRESENTED AT THE EXPENSE OF DISTRICTS WITH
DIFFERENT INTEREST ORIENTATIONS."  394 U.S.,AT 546.  THAT IS PRECISELY
WHAT WE ARE DEALING WITH HERE.  THE ATTEMPT TO MAINTAIN EXISTING TOWN
LINES HAS RESULTED IN A VARIANCE FROM EQUALITY OF 11.9%.  I CANNOT
BELIEVE THAT A 0.2% DIFFERENTIAL IS THE DETERMINING FACTOR IN APPROVING
THIS APPORTIONMENT SCHEME. 

THE COURT EXPLAINS THAT IT IS, RATHER, A COMBINATION OF FACTORS THAT
DICTATES THIS RESULT, AND THAT AMONT THEM IS THE FACT THAT NEW YORK HAS
A LONG HISTORY OF MAINTAINING THE INTEGRITY OF EXISTING COUNTIES.  IT
IS NOT CLEAR TO ME WHY SUCH A HISTORY, NO MATTER HOW PROTRACTED, SHOULD
ALTER THE CONSTITUTIONAL COMMAND TO MAKE A GOOD-FAITH EFFORT TO ACHIEVE
EQUALITY OF VOTING POWER AS NEAR TO MATHEMATICAL EXACTNESS AS IS
POSSIBLE. 

TODAY'S RESULT CANNOT BE EXCUSED BY ASSERTING THAT LOCAL GOVERNMENTS
ARE SOMEHOW LESS IMPORTANT THAN NATIONAL AND STATE GOVERNMENTS.  WE
HAVE ALREADY FULLY APPLIED THE PRINCIPLE OF ONE MAN, ONE VOTE TO LOCAL
POLITIES BECAUSE "THE STATES UNIVERSALLY LEAVE MUCH POLICY AND
DECISIONMAKING TO THEIR GOVERNMENTAL SUBDIVISIONS . . . . IN A WORD,
INSTITUTIONS OF LOCAL GOVERNMENT HAVE ALWAYS BEEN A MAJOR ASPECT OF OUR
SYSTEM, AND THEIR RESPONSIBLE AND RESPONSIVE OPERATION IS TODAY OF
INCREASING IMPORTANCE TO THE QUALITY OF LIFE OF MORE AND MORE OF OUR
CITIZENS."  AVERY V. MIDLAND COUNTY, 390 U.S.,AT 481. 

IT IS CLEAR TO ME THAT NONE OF THE FACTORS RELIED UPON BY THE COURT
TODAY CAN, SINGLY OR IN COMBINATION, JUSTIFY THIS VARIATION.  OBVIOUSLY
NO OTHER LOCAL APPORTIONMENT SCHEME CAN POSSIBLY PRESENT THE SAME
COMBINATION OF FACTORS RELIED ON BY THE COURT TODAY.  IN THAT SENSE
THIS DECISION CAN HAVE LITTLE OR NO PRECEDENTIAL VALUE.  NEVERTHELESS,
I CANNOT HELP BUT REGRET EVEN THIS SMALL DEPARTURE FROM THE BASIC
CONSTITUTIONAL CONCEPT OF ONE MAN, ONE VOTE.     FRANK P. BARONE ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONER ABATE.  DORIS FRIEDMAN ULMAN
ARGUED THE CUASE AND FILED A BRIEF FOR PETITIONERS MOLOF ET AL. PAUL H.
RIVET ARUGED THE CAUSE AND FILED A BRIEF FOR PETITIONERS O'SULLIVAN ET
AL. 

J. MARTIN CORNELL ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS ARTHUR J. PRINDLE. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, RUTH KESSLER TOCH, SOLICITOR
GENERAL, AND ROBERT W. IMRIE, ASSISTANT ATTORNEY GENERAL, FILED A BRIEF
FOR THE STATE OF NEW YORK AS AMICUS CURIAE. 
..END :






















UNITED STATES V. MITCHELL, 403 U.S. 190 


       UNITED STATES ET AL. V. MITCHELL ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

         FIFTH CIRCUIT

        NO. 798.  ARGUED APRIL 20, 1971-- DECIDED JUNE 7, 1971 


A MARRIED WOMAN DOMICILED IN LOUISIANA, WHERE UNDER STATE LAW THE
WIFE HAS A PRESENT VESTED INTEREST IN COMMUNITY PROPERTY EQUAL TO THAT
OF HER HUSBAND, IS PERSONALLY LIABLE FOR FEDERAL INCOME TAXES ON HER
ONE-HALF INTEREST IN COMMUNITY INCOME REALIZED DURING THE EXISTENCE OF
THE COMMUNITY, NOTWITHSTANDING HER SUBSEQUENT RENUNCIATION UNDER STATE
LAW OF HER COMMUNITY RIGHTS, SINCE FEDERAL, NOT STATE, LAW GOVERNS WHAT
IS EXEMPT FROM FEDERAL TAXATION.  PP. 194-206. 

430 F.2D 1 AND 7, REVERSED. 

BLACKMUN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THE PETITION HERE, ARISING FROM TWO CASES BELOW, PRESENTS THE ISSUE
WHETHER A MARRIED WOMAN DOMICILED IN THE COMMUNITY PROPERTY STATE OF
LOUISIANA IS PERSONALLY LIABLE FOR FEDERAL INCOME TAX ON HALF THE
COMMUNITY INCOME REALIZED DURING THE EXISTENCE OF THE COMMUNITY DESPITE
THE EXERCISE OF HER STATUTORY RIGHT OF EXONERATION.  THE ISSUE ARISES
IN THE CONTEXT, IN ONE CASE, OF A DIVORCE, AND, IN THE OTHER, OF THE
HUSBAND'S DEATH. 

   I 

MRS. MITCHELL AND MRS. SIMS.  THE COMMISSIONER OF INTERNAL REVENUE
DETERMINED DEFICIENCIES AGAINST ANNE GOYNE MITCHELL AND JANE ISABELL
GOYNE SIMS FOR THE TAX YEARS 1955-1959, INCLUSIVE.  THESE WERE FOR
FEDERAL INCOME TAX AND FOR ADDITIONS TO TAX UNDER SEC. 6651(A) (FAILURE
TO FILE RETURN), SEC. 6653(A) (UNDERPAYMENT DUE TO NEGLIGENCE OR
INTENTIONAL DISREGARD OF RULES AND REGULATIONS), AND SEC. 6654
(UNDERPAYMENT OF ESTIMATED TAX) OF THE INTERNAL REVENUE CODE OF 1954,
26 U.S.C. 6651(A), 6653(A), AND 6654.  MRS. SIMS IS THE SISTER OF MRS.
MITCHELL.  THE DETERMINATIONS AS TO HER WERE MADE UNDER SEC. 6901 AS
MRS. MITCHELL'S TRANSFEREE WITHOUT CONSIDERATION. 

ANNE GOYNE AND EMMETT BELL MITCHELL, JR., WERE MARRIED IN 1946. 
THEY LIVED IN LOUISIANA.  IN JULY 1960, HOWEVER, THEY BEGAN TO LIVE
SEPARATELY AND APART.  IN AUGUST 1961 MRS. MITCHELL SUED HER HUSBAND IN
STATE COURT FOR SEPARATION.  UPON HIS DEFAULT, SHE WAS GRANTED THIS
RELIEF.  A FINAL DECREE OF DIVORCE WAS ENTERED IN OCTOBER 1962.  IN HER
SEPARATION SUIT MRS. MITCHELL PRAYED THAT SHE BE ALLOWED TO ACCEPT THE
COMMUNITY OF ACQUETS AND GAINS WITH BENEFIT OF INVENTORY.  HOWEVER,
TAKING ADVANTAGE OF THE PRIVILEGE GRANTED HER BY ART. 2410 OF THE
LOUISIANA CIVIL CODE, /1/  SHE FORMALLY RENOUNCED THE COMMUNITY ON
SEPTEMBER 18, 1961.  AS A CONSEQUENCE, SHE RECEIVED NEITHER A
DISTRIBUTION OF COMMUNITY PROPERTY NOR A PROPERTY SETTLEMENT UPON
DISSOLUTION OF HER MARRIAGE.  THIS RENUNCIATION SERVED TO EXONERATE HER
OF "DEBTS CONTRACTED DURING THE MARRIAGE." 

MRS. MITCHELL EARNED $4,200 AS A TEACHER DURING 1955 AND 1956.  FROM
THESE EARNINGS TAX WAS WITHHELD.  MR. MITCHELL ENJOYED TAXABLE INCOME
DURING THE FIVE YEARS IN QUESTION.  ALL INCOME REALIZED BY BOTH SPOUSES
DURING THIS PERIOD WAS COMMUNITY INCOME. 

MRS. MITCHELL HAD LITTLE KNOWLEDGE OF HER HUSBAND'S FINANCES.  SHE
RARELY KNEW THE BALANCE IN THE FAMILY BANK ACCOUNT.  SHE POSSESSED A
WITHDRAWAL PRIVILEGE ON THAT ACCOUNT, AND OCCASIONALLY EXERCISED IT.
HER HUSBAND WAS IN CHARGE OF THE COUPLE'S FINANCIAL AFFAIRS AND DID NOT
USUALLY CONSULT HIS WIFE ABOUT THEM.  SHE WAS AWARE OF FISCAL
IRRESPONSIBLITY ON HIS PART.  SHE QUESTIONED HIM EACH YEAR ABOUT TAX
RETURNS.  SHE KNEW RETURNS WERE REQUIRED, BUT RELIED ON HIS ASSURANCES
THAT HE WAS FILING TIMELY RETURNS AND PAYING THE TAXES DUE.  SHE SIGNED
NO RETURN HERSELF AND ASSUMED THAT HE HAD SIGNED HER NAME FOR HER.  IN
JULY 1960 SHE LEARNED THAT, IN FACT, NO RETURNS HAD EVER BEEN FILED FOR
1955-1959. 

THE DEFICIENCIES DETERMINED AGAINST MRS. MITCHELL WERE BASED UPON
HALF THE COMMUNITY INCOME.  THE COMMISSIONE SOUGHT TO COLLECT THE
DEFICIENCIES FROM PROPERTY MRS. MITCHELL INHERITED FROM HER MOTHER IN
1964 AND IMMEDIATELY TRANSFERRED, WITHOUT CONSIDERATION, TO MRS. SIMS. 

MRS. MITCHELL SOUGHT REDETERMINATION IN THE TAX COURT.  JUDGE
FORRESTER HELD THAT UNDER LOUISIANA COMMUNITY PROPERTY LAW MRS.
MITCHELL POSSESSED AN IMMEDIATE VESTED OWNERSHIP INTEREST IN HALF THE
COMMUNITY PROPERTY INCOME AND WAS PERSONALLY RESPONSIBLE FOR THE TAX ON
HER SHARE.  HE ALSO RULED THAT THIS TAX LIABILITY WAS NOT AFFECT BY HER
ART. 2410 RENUNCIATION.  MITCHELL V. COMMISSIONER, 51 T.C. 641 (1969). 

ON APPEAL, THE FIFTH CIRCUIT REVERSED, HOLDING THAT BY THE
RENUNCIATION MRS. MITCHELL AVOIDED ANY FEDERAL INCOME TAX LIABILITY ON
THE COMMUNITY INCOME.  MITCHELL V. COMMISSIONER, 430 F.2D 1 (CA5
1970).  /2/  JUDGE SIMPSON DISSENTED ON THE BASIS OF JUDGE FORRESTER'S
OPINION IN THE TAX COURT.  430 F.2D,AT 7. 

MRS. ANGELLO.  THROUGHOUT THE CALENDER YEARS 1959-1961 MRS. ANGELLO,
WHO WAS THEN FRANCES SPARACIO, LIVED WITH HER HUSBAND, JACK SPARACIO,
IN LOUISIANA.  COMMUNITY INCOME WAS REALIZED BY THE SPARACIOS DURING
THOSE YEARS, BUT NEITHER THE HUSBAND NOR THE WIFE FILED ANY RETURNS. 
IN 1965 THE DISTRICT DIRECTOR MADE ASSESSMENTS AGAINST THEM FOR TAXES,
PENALTIES, AND INTEREST, FILED A NOTICE OF LIEN, AND ADDRESSED A NOTICE
OF LEVY TO THE METROPOLITAN LIFE INSURANCE COMPANY, WHICH HAD A POLICY
OUTSTANDING ON MR. SPARACIO'S LIFE.  THE INSURED DIED IN MARCH 1966 AND
THE NOTICE OF LEVY (FOR THE AMOUNT OF TAX AND INTEREST RESULTING FROM
IMPUTING TO MRS. SPARACIO HALF THE COMMUNITY'S INCOME FOR THE TAX YEARS
IN QUESTION) ATTACHED TO THE PROCEEDS OF THE POLICY.  THE WIDOW, WHO
WAS THE NAMED BENEFICIARY, SUED THE METROPOLITAN IN STATE COURT TO
RECOVER THE POLICY PROCEEDS.  THE UNITED STATES INTEREVENED TO ASSERT
AND PROTECT ITS LIEN.  THE CASE WAS THEN REMOVED TO FEDERAL COURT.  THE
METROPOLITAN PAID THE PROCEEDS INTO THE COURT REGISTRY AND WAS
DISMISSED FROM THECASE. 

EACH SIDE THEN MOVED FOR SUMMARY JUDGMENT.  JUDGE CHRISTENBERRY
GRANTED THE GOVERNMENT'S MOTION AND DENIED MRS. ANGELLO'S.  DESPITE THE
ABSENCE OF ANY FORMAL RENUNCIATION BY MRS. ANGELLO UNDER ART. 2410, THE
GOVERNMENT DID NOT CONTEND THAT SHE HAD ACCEPTED ANY BENEFITS OF THE
COMMUNITY.  ON APPEAL, THE COURT OF APPEALS REVERSED, RELYING ON THE
SAME PANEL'S DECISION IN THE MITCHELL CASE.  ANGELLO V. METROPOLITAN
LIFE INS. CO., 430 F.2D 7 (CA5 1970).  JUDGE SIMPSON AGAIN DISSENTED. 

WE GRANTED CERTIORARI IN BOTH CASES.  400 U.S. 1008 (1971), ON A
SINGLE PETITION FILED UNDER OUR RULE 23(5). 

        II 

THEIR PREDECESSORS SINCE THE REVENUE ACT OF 1917, /3/  IMPOSE A TAX ON
THE TAXABLE INCOME "OF EVERY INDIVIDUAL."  THE STATUTES, HOWEVER, HAVE
NOT SPECIFIED WHAT THAT PHRASE INCLUDES. 

FORTY YEARS AGO THIS COURT HAD OCCASION TO CONSIDER THE PHRASE IN
THE FACE OF VARIOUS STATE COMMUNITY PROPERTY LAWS AND OF SECS. 210 AND
211 OF THE REVENUE ACT OF 1926.  A HUSBAND AND WIFE, RESIDENTS OF THE
STATE OF WASHINGTON, HAD INCOME IN 1927 CONSISTING OF THE HUSBAND'S
SALARY AND OF AMOUNTS REALIZED FROM REAL AND PERSONAL PROPERTY OF THE
COMMUNITY.  THE SPOUSES FILED SEPARATE RETURNS FOR 1927 AND EACH
REPORTED HALF THE COMMUNITY INCOME.  MR. JUSTICE ROBERTS, IN SPEAKING
FOR A UNANIMOUS COURT (TWO JUSTICES NOT PARTICIPATING) UPHOLDING THIS
TAX TREATMENT, SAID: 

"THESE SECTIONS LAY A TAX UPON THE NET INCOME OF EVERY INDIVIDUAL. 
THE ACT GOES NO FARTHER, AND FURNISHES NO OTHER STANDARD OR DEFINITION
OF WHAT CONSTITUTES AN INDIVIDUAL'S INCOME.  THE USE OF THE WORD 'OF'
DENOTES OWNERSHIP.  IT WOULD BE A STRAINED CONSTRUCTION, WHICH, IN THE
ABSENCE OF FURTHER DEFINITION BY CONGRESS, SHOULD IMPUTE A BROADER
SIGNIFICANCE TO THE PHRASE."  POE V. SEABORN, 282 U.S. 101, 109
(1930). 

THE COURT THUS EMPHASIZED OWNERSHIP.  IT LOOKED TO THE LAW OF THE
STATE AS TO THE OWNERSHIP OF COMMUNITY PROPERTY AND OF COMMUNITY
INCOME.  IT CONCLUDED THAT IN WASHINGTON THE WIFE HAS "A VESTED
PROPERTY RIGHT IN THE COMMUNITY PROPERTY, EQUAL WITH THAT OF HER
HUSBAND; AND IN THE INCOME OF THE COMMUNITY, INCLUDING SALARIES OR
WAGES OF EITHER HUSBAND OR WIFE, OR BOTH."  ID., AT 111.  IT NOTED THAT
IN CONTRAST, IN AN EARLIER CASE, UNITED STATES V. ROBBINS, 269 U.S. 315
(1926), THE OPPOSITE RESULT HAD BEEN REACHED UNDER THE THEN CALIFORNIA
LAW.  BUT: 

     "IN THE ROBBINS CASE, WE FOUND THAT THE LAW OF CALIFORNIA, AS

  CONSTRUED BY HER OWN COURTS, GAVE THE WIFE A MERE EXPECTANCY AND

  THT THE PROPERTY RIGHTS OF THE HUSBAND DURING THE LIFE OF THE

COMMUNITY WERE SO COMPLETE THAT HE WAS IN FACT THE OWNER."  282

  U.S.,AT 116. 

IN COMPANION CASES THE COURT CAME TO THE SAME CONCLUSION, AS IT HAD
REACHED IN SEABORN, WITH RESPECT TO THE COMMUNITY PROPERTY LAWS OF
ARIZONA, TEXAS, AND LOUISIANA.  GOODELL V. KOCH, 282 U.S. 118 (1930);
HOPKINS V. BACON, 282 U.S. 122 (1930); BENDER V. PFAFF, 282 L.S. 127
(1930).  IN THE LOUISIANA CASE IT WAS SAID: 

     "IF THE TEST BE, AS WE HAVE HELD IT IS, OWNERSHIP OF THE

  COMMUNITY INCOME, THIS CASE IS PROBABLY THE STRONGEST OF THOSE

  PRESENTED TO US, IN FAVOR OF THE WIFE'S OWNERSHIP OF ONE-HALF OF

  THAT INCOME."  282 U.S.,AT 131. 

THE COURT THEN REVIEWED THE RELEVANT LOUISIANA STATUTES AND THE POWER
OF DISPOSITION POSSESSED BY EACH SPOUSE.  IT NOTED THAT, WHILE THE
HUSBAND IS THE MANAGER OF THE AFFAIRS OF THE MARITAL PARTNERSHIP, THE
LIMITATIONS UPON THE WRONGFUL EXERCISE OF HIS POWER OVER COMMUNITY
PROPERTY ARE MORE STRINGENT THAN IN MANY OTHER STATES.  IT CONCLUDED: 

  "INASMUCH, THEREFORE, AS, IN LOUISIANA, THE WIFE HAS A PRESENT

  VESTED INTEREST IN COMMUNITY PROPERTY EQUAL TO THAT OF HER

  HUSBAND, WE HOLD THAT THE SPOUSES ARE ENTITLED TO FILE SEPARATE

  RETURNS, EACH TREATING ONE-HALF OF THE COMMUNITY INCOME AS INCOME

  OF EACH 'OF' THEM AS AN 'INDIVIDUAL' AS THOSE WORDS ARE USED IN

  SECS. 210(A) AND 211(A) OF THE REVENUE ACT OF 1926."  282 U.S.,AT

  132. 

TWO MONTHS LATER THE COURT ARRIVED AT THE SAME CONCLUSION WITH
RESPECT TO CALIFORNIA COMMUNITY PROPERTY LAW AND FEDERAL INCOME TAX
UNDER THE 1928 ACT, WITH THE GOVERNMENT CONCEDING THE EFFECTIVENESS, IN
THIS RESPECT, OF AMENDMENTS MADE TO THE CALIFORNIA STATUTES SINCE THE
ROBBINS DECISION.  UNITED STATES V. MALCOLM, 282 U.S. 792 (1931). 
SIGNIFICANTLY, THE COURT THERE ANSWERED IN THE AFFIRMATIVE, CITING
SEABORN, KOCH, AND BACON, THE FOLLOWING CERTIFIED QUESTION: 

"HAS THE WIFE UNDER SEC. 161(A) OF THE CIVIL CODE OF CALIFORNIA SUCH
AN INTEREST IN THE COMMUNITY INCOME THAT SHE SHOULD SEPARATELY REPORT
AND PAY TAX ON ONE-HALF OF SUCH INCOME?"  282 U.S.,AT 794.  THIS
AFFIRMATIVE ANSWER TO A QUESTION PHRASED IN TERMS OF "SHOULD," NOT
"MAY," CLEARLY INDICATES THAT THE WIFE HAD THE OBLIGATION, NOT MERELY
THE RIGHT, TO REPORT HALF THE COMMUNITY INCOME. 

THE FEDERAL COURTS SINCE MALCOLM CONSISTENTLY HAVE HELD THAT THE
WIFE IS REQUIRED TO REPORT HALF THE COMMUNITY INCOME AND THAT THE
HUSBAND IS TAXABLE ONLY ON THE OTHER HALF.  GILMORE V. UNITED STATES,
154 CT.CL. 365, 290 F.2D 942 (1961), REV'D ON OTHER GROUNDS, 372 U.S.
39 (1963); VAN ANTWERP V. UNITED STATES, 92 F.2D 871 (CA9 1937);
SIMMONS V. CULLEN, 197 F.SUPP.  179 (ND CAL. 1961); DILLIN V.
COMMISSIONER, 56 T.C. 228 (1971); KIMES V. COMMISSIONER COMMISSIONER,
55 T.C. 774 (1971); HILL V. COMMISSIONER, 32 T.C. 254 (1959); HUNT V.
COMMISSIONER, 22 T.C. 228 (1954); FREUNDLICH V. COMMISSIONER, T.C. MEMO
1955-177; CAVANAGH V. COMMISSIONER, 42 B.T.A. 1037, 1044 (1940), AFF'D,
125 F.2D 366 (CA9 1942).  THERE WERE HOLDINGS FROM THE FIFTH CIRCUIT TO
THIS APPARENT EFFECT WITH RESPECT TO LOUISIANA TAXPAYERS.  COMMISSIONER
V. HYMAN, 135 F.2D 49, 50 (1943); SAENGER V. COMMISSIONER, 69 F.2D 633
(1934); SMITH V. DONNELLY, 65 F.SUPP.  415 (ED LA. 1946).  SEE
HENDERSON'S ESTATE V. COMMISSIONER, 155 F.2D 310 (CA5 1946), AND
GONZALEZ V. NATIONAL SURETY CORP., 266 F.2D 667, 669 (CA5 1959). 

THUS, WITH RESPECT TO COMMUNITY INCOME, AS WITH RESPECT TO OTHER
INCOME, FEDERAL INCOME TAX LIABILITY FOLLOWS OWNERSHIP.  BLAIR V.
COMMISSIONER, 300 U.S. 5, 11-14 (1937).  SEE HOEPER V. TAX COMM'N, 284
U.S. 206 (1931).  IN THE DETERMINATION OF OWNERSHIP, STATE LAW
CONTROLS.  "THE STATE LAW CREATES LEGAL INTERESTS BUT THE FEDERAL
STATUTE DETERMINES WHEN AND HOW THEY SHALL BE TAXED."  BURNET V.
HARMEL, 287 U.S. 103, 110 (1932); MORGAN V. COMMISSIONER 309 U.S. 78,
80-81 (1940); HELVERING V. STUART, 317 U.S. 154, 162 (1942);
COMMISSIONER V. HARMON, 323 U.S. 44, 50-51 (1944) (DOUGLAS, J.,
DISSENTING); SEE COMMISSIONER V. ESTATE OF BOSCH, 387 U.S. 456 (1967). 
THE DATES OF THE CITED CASES INDICATE THAT THESE PRINCIPLES ARE LONG
ESTABLISHED IN THE LAW OF TAXATION. 

        III 

THIS WOULD APPEAR TO FORECLOSE THE ISSUE FOR THE PRESENT CASES. 
NEVERTHELESS, BECAUSE RESPONDENTS AND THE COURT OF APPEALS STRESS THE
EVANESCENT NATURE OF THE WIFE'S INTEREST IN COMMUNITY PROPERTY IN
LOUISIANA, A REVIEW OF THE PERTINENT LOUISIANA STATUTES AND DECISIONS
IS PERHAPS IN ORDER. 

EVERY MARRIAGE CONTRACTED IN LOUISIANA "SUPERINDUCES OF RIGHT
PARTNERSHIP OR COMMUNITY OF ACQUETS OR GAINS, IF THERE BE NO
STIPULATION TO THE CONTRARY."  LA. CIV. CODE ANN., ART. 2399 (1971). 
"THIS PARTNERSHIP OR COMMUNITY CONSISTS OF THE PROFITS OF ALL THE
EFFECTS OF WHICH THE HUSBAND HAS THE ADMINISTRATION AND ENJOYMENT,
EITHER OF RIGHT OR IN FACT, OF THE PRODUCE OF THE RECIPROCAL INDUSTRY
AND LABOR OF BOTH HUSBAND AND WIFE, AND OF THE ESTATE WHICH THEY MAY
ACQUIRE DURING THE MARRIAGE, EITHER BY DONATIONS MADE JOINTLY TO THEM
BOTH, OR BY PURCHASE, OR IN ANY OTHER SIMILAR WAY, EVEN ALTHOUGH THE
PURCHASE BE ONLY IN THE NAME OF ONE OF THE TWO AND NOT OF BOTH, BECAUSE
IN THAT CASE THE PERIOD OF TIME WHEN THE PURCHASE IS MADE IS ALONE
ATTENDED TO, AND NOT THE PERSON WHO MADE THE PURCHASE . . . ."  ART.
2402.  THE DEBTS CONTRACTED DURING THE MARRIAGE "ENTER INTO THE
PARTNERSHIP OR COMMUNITY OF GAINS, AND MUST BE ACQUITTED OUT OF THE
COMMON FUND . . . ."  ART. 2403.  "THE HUSBAND IS THE HEAD AND MASTER
OF THE PARTNERSHIP OR COMMUNITY OF GAINS; HE ADMINISTERS ITS EFFECTS,
DISPOSES OF THE REVENUES WHICH THEY PRODUCE, AND MAY ALIENATE THEM BY
AN ONEROUS TITLE, WITHOUT THE CONSENT AND PERMISSION OF HIS WIFE." 
ALSO "HE MAY DISPOSE OF THE MOVABLE EFFECTS BY A GRATUITOUS AND
PARTICULAR TITLE, TO THE BENEFIT OF ALL PERSONS."  ART. 2404.  THE SAME
ARTICLE, HOWEVER, DENIES HIM THE POWER OF CONVEYANCE, "BY A GRATUITOUS
TITLE," OF COMMUNITY IMMOVABLES, OR OF THE WHOLE OR A QUOTA OF THE
MOVABLES, UNLESS FOR THE CHILDREN; AND IF THE HUSBAND HAS SOLD OR
DISPOSED OF THE COMMON PROPERTY IN FRAUD OF THE WIFE, SHE HAS AN ACTION
AGAINST HER HUSBAND'S HEIRS.  AT THE DISSOLUTION OF A MARRIAGE "ALL
EFFECTS WHICH BOTH HUSBAND AND WIFE RECIPROCALLY POSSESS, ARE PRESUMED
COMMON EFFECTS OR GAINS . . . ."  ART. 2405.  AT DISSOLUTION, "THE
EFFECTS WHICH COMPOSE THE PARTNERSHIP OR COMMUNITY OF GAINS, ARE
DIVIDED INTO TWO EQUAL PORTIONS BETWEEN THE HUSBAND AND THE WIFE, OR
BETWEEN THEIR HEIRS . . . ."  ART. 2406.  "IT IS UNDERSTOOD THAT, IN
THE PARTITION OF THE EFFECTS OF THE PARTNERSHIP OR COMMUNITY OF GAINS,
BOTH HUSBAND AND WIFE ARE TO BE EQUALLY LIABLE FOR THEIR SHARE OF THE
DEBTS CONTRACTED DURING THE MARRIAGE, AND NOT ACQUITTED AT THE TIME OF
ITS DISSOLUTION."  ART. 2409.  THEN THE WIFE AND HER HEIRS OR ASSIGNS
MAY "EXONERATE THEMSELVES FROM THE DEBTS CONTRACTED DURING THE
MARRIAGE, BY RENOUNCING THE PARTNERSHIP OR COMMUNITY OF GAINS."  ART.
2410.  AND THE WIFE WHO RENOUNCES, LOSES EVERY SORT OF RIGHT TO THE
EFFECTS OF THE PARTNERSHIP OR COMMUNITY OF GAINS" EXCEPT THAT "SHE
TAKES BACK ALL HER EFFECTS, WHETHER DOTAL OR EXTRADOTAL."  ART. 2411. 

THE LOUISIANA COURT HAS DESCRIBED AND FORCEFULLY STATED THE NATURE
OF THE COMMUNITY INTEREST.  IN PHILLIPS V. PHILLIPS, 160 LA. 813, 825
826, 107 SO. 584, 588 (1926), IT WAS SAID: 

"THE WIFE'S HALF INTEREST IN THE COMMUNITY PROPERTY IS NOT A MERE
EXPECTANCY DURING THE MARRIAGE; IT IS NOT TRANSMITTED TO HER BY OR IN
CONSEQUENCE OF A DISSOLUTION OF THE COMMUNITY.  THE TITLE FOR HALF OF
THE COMMUNITY PROPERTY IS VESTED IN THE WIFE THE MOMENT IT IS ACQUIRED
BY THE COMMUNITY OR BY THE SPOUSES JOINTLY, EVEN THOUGH IT BE ACQUIRED
IN THE NAME OF ONLY ONE OF THEM . . . . THERE ARE LOOSE EXPRESSIONS,
APPEARING IN SOME OF THE OPINIONS RENDERED BY THIS COURT, TO THE EFFECT
THAT THE WIFE'S HALF INTEREST IN THE COMMUNITY PROPERTY IS ONLY AN
EXPECTANCY, OR A RESIDUARY INTEREST, UNTIL THE COMMUNITY IS DISSOLVED
AND LIQUIDATED.  BUT THAT IS CONTRARY TO THE PROVISIONS OF THE CIVIL
CODE . . . AND IS CONTRARY TO THE RULE ANNOUNCED IN EVERY DECISION OF
THIS COURT SINCE THE ERROR WAS FIRST COMMITTED . . . ."  LATER, IN
SUCCESSION OF WIENER, 203 LA. 649, 14 SO.2D 475 (1943), A STATE
INHERITANCE TAX CASE, THE COURT, AFTER REFERRING TO ARTS. 2399 AND 2402
OF THE OF THE CIVIL CODE, SAID: 

     "THAT THIS COMMUNITY IS A PARTNERSHIP IN WHICH THE HUSBAND AND

WIFE OWN EQUAL SHARES, THEIR TITLE THERETO VESTING AT THE VERY

  INSTANT SUCH PROPERTY IS ACQUIRED, IS WELL SETTLED IN THIS STATE

  . . . . " 

     "THE CONCLUSION WE HAVE REACHED IN THIS CASE IS IN KEEPING
WITH

  THE DECISION OF THE UNITED STATES SUPREME COURT IN THE CASE OF

  BENDER V. PFAFF, SUPRA, WHERE THAT COURT RECOGNIZED THAT UNDER

  THE LAW OF LOUISIANA THE WIFE IS NOT ONLY VESTED WITH THE

OWNERSHIP OF HALF OF THE COMMUNITY PROPERTY FROM THE MOMENT IT IS

  ACQUIRED,BUT IS LIKEWISE THE OWNER OF HALF OF THE COMMUNITY

  INCOME . . . ."  203 LA.,AT 657 AND 662, 14 SO.2D,AT 477 AND

  479. 

AFTER REVIEWING JOINT TENANCY AND TENANCY BY THE ENTIRETY KNOWN TO THE
COMMON LAW, THE COURT OBSERVED: 

     "IN LOUISIANA, THE SITUATION IS ENTIRELY DIFFERENT, FOR HERE

  THE CIVIL LAW PREVAILS, AND THE THEORY OF THE CIVIL LAW IS THAT

  THE ACQUISITION OF ALL PROPERTY DURING THE MARRIAGE IS DUE TO THE

  JOINT OR COMMON EFFORTS, LABOR, INDUSTRY, ECONOMY, AND SACRIFICES

  OF THE HUSBAND AND WIFE; IN HER STATION THE WIFE IS JUST AS MUCH

  AN AGENCY IN ACQUIRING THIS PROPERTY AS IS HER HUSBAND.  IN

  LOUISIANA, THEREFORE, THE WIFE'S RIGHTS IN AND TO THE COMMUNITY

  PROPERTY DO NOT REST UPON THE MERE GRATUITY OF HER HUSBAND; THEY

  ARE JUST AS GREAT AS HIS AND ARE ENTITLED TO EQUAL DIGNITY . . .

  . SHE IS THE HALF-PARTNER AND OWNER OF ALL ACQUISITIONS MADE

  DURING THE EXISTENCE OF THE COMMUNITY, WHETHER THEY BE PROPERTY

  OR INCOME . . . . 

"IT IS TRUE THAT IN WEAVING THIS HARMONIOUS COMMERCIAL

PARTNERSHIP AROUND THE INTIMATE AND SCARED MARITAL RELATIONSHIP,

  THE FRAMERS OF OUR LAW AND ITS CODIFIERS SAW FIT, IN THEIR

  WISDOM, TO PLACE THE HUSBAND AT THE HEAD OF THE PARTNERSHIP, BUT

  THIS DID NOT IN ANY WAY AFFECT THE STATUS OF THE PROPERTY OR THE

  WIFE'S OWNERSHIP OF HER HALF THEREOF . . . . AND THE HUSBAND WAS

  MADE THE MANAGING PARTNER OF THE COMMUNITY AND CHARGED WITH THE

  ADMINISTRATION OF ITS EFFECTS, AS WELL AS WITH THE ALIENATION OF

  ITS EFFECTS AND REVENUES BY ONEROUS TITLE, BECAUSE HE WAS DEEMED

 THE BEST QUALIFIED TO ACT."  203 LA.,AT 665-667, 14 SO.2D,AT

  480-481. 

THE COURT THEN OUTLINED IN DETAIL THE VARIOUS PROTECTIONS AFFORDED BY
LOUISIANA LAW TO THE WIFE AND CONCLUDED: 

     "IT IS OBVIOUS, THEREFORE, THAT THE WIFE'S INTEREST IN THE

  COMMUNITY PROPERTY IN LOUISIANA DOES NOT SPRING FROM ANY FICTION

  OF THE LAW OR FROM ANY GIFT OR ACT OF GENEROSITY ON THE PART OF

  HER HUSBAND BUT, INSTEAD, FROM AN EXPRESS LEGAL CONTRACT OF

  PARTNERSHIP ENTERED INTO AT THE TIME OF THE MARRIAGE.  THERE IS

  NO SUBSTANTIAL DIFFERENCE BETWEEN HER INTEREST THEREIN AND THE

  INTEREST OF AN ORDINARY MEMBER OF A LIMITED OR ORDINARY

  PARTNERSHIP, THE CONTROL AND MANAGEMENT OF WHOSE AFFAIRS HAS, BY

AGREEMENT, BEEN ENTRUSTED TO A MANAGING PARTNER.  THE ONLY REAL

  DIFFERENCE IS THAT THE LIMITATIONS PLACED ON THE MANAGING PARTNER

  IN THE COMMUNITY PARTNERSHIP ARE FIXED BY LAW, WHILE THOSE PLACED

  ON THE MANAGING PARNTER IN AN ORDINARY OR LIMITED PARTNERSHIP ARE

  FIXED BY CONVENTION OR CONTRACT."  203 LA.,AT 669, 14 SO.2D,AT

  481-482. 

THE HUSBAND THUS IS THE MANAGER AND AGENT OF THE LOUISIANA COMMUNITY,
BUT HIS POWERS AS MANAGER DO NOT SERVE TO DEFEAT THE OWNERSHIP RIGHTS
OF THE WIFE. 

THESE PRINCIPLES REPEATEDLY HAVE FOUND EXPRESSION IN LOUISIANA
CASES.  UNITED STATES FIDELITY & GUARANTY CO. V. GREEN, 252 LA. 227,
232-233, 210 SO.2D 328, 330 (1968); GEBBIA V. CITY OF NEW ORLEANS, 249
LA. 409, 415-416, 187 SO.2D 423, 425 (1966); AZAR V. AZAR, 239 LA. 941,
946, 120 SO.2D 485, 487 (1960); MESSERSMITH V. MESSERSMITH, 229 LA.
495, 507, 86 SO.2D 169, 173 (1956); DIXON V. DIXON'S EXECUTORS, 4 LA.
188 (1832). 

THIS COURT RECOGNIZED THESE LOUISIANA COMMUNITY PROPERTY PRINCIPLES
IN THE WIENER ESTATE'S FEDERAL ESTATE TAX LITIGATION.  FERNANDEZ V.
WIENER, 326 U.S. 340 (1945).  THERE THE INCLUSION IN THE DECEDENT'S
GROSS ESTATE OF THE ENTIRE COMMUNITY PROPERTY WAS UPHELD FOR PURPOSES
OF THE FEDERAL ESTATE TAX WHICH IS AN EXCISE TAX.  MR. CHIEF JUSTICE
STONE NOTED THE RESPECTIVE INTERESTS OF THE SPOUSES WHEN, IN THE
FOLLOWING LANGUAGE, HE SPOKE OF THE EFFECT OF DEATH: 

     "AS WE HAVE SEEN, THE DEATH OF THE HUSBAND OF THE LOUISIANA

  MARITAL COMMUNITY NOT ONLY OPERATES TO TRANSFER HIS RIGHTS IN HIS

  SHARE OF THE COMMUNITY TO HIS HEIRS OR THOSE TAKING UNDER HIS

WILL.  IT TERMINATES HIS EXPANSIVE AND SOMETIMES PROFITABLE

  CONTROL OVER THE WIFE'S SHARE, AND FOR THE FIRST TIME BRINGS HER

  HALF OF THE PROPERTY INTO HER FULL AND EXCLUSIVE POSSESSION,

  CONTROL AND ENJOYMENT.  THE CESSATION OF THESE EXTENSIVE POWERS

  OF THE HUSBAND, EVEN THOUGH THEY WERE POWERS OVER PROPERTY WHICH

  HE NEVER 'OWNED,' AND THE ESTABLISHMENT IN THE WIFE OF NEW POWERS

  OF CONTROL OVER HER SHARE, THOUGH IT WAS ALWAYS HERS, FURNISH

  APPROPRIATE OCCASIONS FOR THE IMPOSITION OF AN EXCISE TAX. 

     "SIMILARLY, WITH THE DEATH OF THE WIFE, HER TITLE OR OWNERSHIP

  IN HER SHARE OF THE COMMUNITY PROPERTY ENDS, AND PASSES TO HER

  HEIRS OR OTHER APPOINTEES.  MORE THAN THIS, HER DEATH, BY ENDING

  THE MARITAL COMMUNITY, LIBERATES HER HUSBAND'S SHARE FROM THE

  RESTRICTIONS WHICH THE EXISTENCE OF THE COMMUNITY HAD PLACED UPON

  HIS CONTROL OF IT . . . . 

     "THIS REDISTRIBUTION OF POWERS AND RESTRICTIONS UPON POWER IS

  BROUGHT ABOUT BY DEATH NOTWITHSTANDING THAT THE RIGHTS IN THE

  PROPERTY SUBJECT TO THESE POWERS AND RESTRICTIONS WERE IN EVERY

  SENSE 'VESTED' FROM THE MOMENT THE COMMUNITY BEGAN . . . ."  326

  U.S.,AT 355-356. 

THUS THE LOUISIANA STATUTES AND CASES ALSO SEEM TO FORECLOSE THE
CLAIMS ADVANCED BY THE RESPONDENTS. 

        IV 

DESPITE ALL THIS, DESPITE THE CONCESSION THAT THE WIFE'S INTEREST IN
THE COMMUNITY PROPERTY IS NOT A MERE EXPECTANCY, /4/  AND DESPITE THE
FURTHER CONCESSION THAT SHE HAS A VESTED TITLE IN, AND IS THE OWNER OF,
A HALF SHARE OF THE COMMUNITY INCOME, /5/  RESPONDENTS TAKE THE
POSITION THAT SOMEHOW THE WIFE'S INTEREST IS INSUFFICIENT TO MAKE HER
LIABLE FOR FEDERAL INCOME TAX COMPUTED ON THAT HALF OF THE COMMUNITY
INCOME. 

IT IS SAID THAT HER RIGHT TO RENOUNCE THE COMMUNITY AND TO PLACE
HERSELF IN THE SAME POSITION AS IF IT HAD NEVER EXISTED IS SUBSTANTIVE;
THAT THE WIFE IS NOT PERSONALLY LIABLE FOR A COMMUNITY DEBT; THAT IT IS
REALLY THE COMMUNITY AS AN ENTITY, NOT THE HUSBAND OR THE WIFE, THAT
OWNS THE PROPERTY; AND THAT SEABORN AND ITS COMPANION CASES WERE
CONCERNED ONLY WITH THE RIGHT TO SPLIT INCOME, NOT WITH THE OBLIGATION
SO TO DO.  IT IS ALSO SAID THAT THE WIFE'S DOMINION OVER THE COMMUNITY
PROPERTY IS NONEXISTENT IN LOUISIANA; THAT THE HUSBAND ADMINISTERS THE
COMMUNITY'S AFFAIRS AS HE SEES FIT; THAT HE IS NOT REQUIRED TO ACCOUNT
TO THE WIFE, EVEN FOR MISMANAGEMENT, UNLESS HE ENRICHES HIS ESTATE AT
HER EXPENSE BY FRAUD; THAT SHE HAS NO WAY TO TERMINATE THE COMMUNITY
OTHER THAN BY SUIT FOR SEPARATION, AND THEN ONLY BY SHOWING
MISMANAGEMENT ON HIS PART THAT THREATENS HER SEPARATE ESTATE; THAT HER
STATUS IS IMPOSED BY LAW, AS CONTRASTED WITH A COMMERCIAL PARTNERSHIP
WHERE STATUS IS CONSENSUAL; THAT SHE HAS NO LEGAL RIGHT TO OBTAIN THE
INFORMATION NECESSARY TO FILE A TAX RETURN OR TO OBTAIN THE INFORMATION
NECESSARY TO FILE A TAX RETURN OR TO OBTAIN THE FUNDS WITH WHICH TO PAY
THE TAX; AND THT ROBBINS AUTHORIZES TAXING THE WHOLE OF THE COMMUNITY
INCOME TO THE HUSBAND.  THE SAME ARGUMENTS, HOWEVER, WERE ADVANCED IN
SEABORN, 282 U.S.,AT 103-105, AND IN ITS COMPANION CASES, 282 U.S.,AT
119, 123, AND 128, AND WERE UNAVAILING THERE, 282 U.S.,AT 111-113. 
THEY DO NOT PERSUADE US HERE.  SPECIFICALLY, THE POWER TO RENOUNCE,
GRANTED BY ARTICLE 2410, IS OF NO COMFORT TO THE WIFE-TAXPAYER.  AS
JUDGE FORRESTER APTLY EXPRESSED IT, 51 T.C.,AT 646, MRS. MITCHELL'S
RENUNCIATION "CAME LONG AFTER HE LIABILITIES FOR THE ANNUAL INCOME
TAXES HERE IN ISSUE HAD ATTACHED."  FURTHER, "(THIS RIGHT OF THE WIFE
TO RENOUNCE OR REPUDIATE MUST NOT BE MISCONSTRUED AS AN INDICATION THAT
SHE HAD NEVER OWNED AND POSSESSED HER SHARE, FOR THAT FACT WAS NOT
DENIED; BUT SHE DID HAVE, UNDER THE PRINCIPLES OF COMMUNITY PROPERTY,
THE RIGHT TO REVOKE HER OWNERSHIP AND POSSESSION . . . ."  1
W.DEFUNIAK, PRINCIPLES OF COMMUNITY PROPERTY 218, P. 621 (1943). 

THE RESULTS URGED BY THE RESPONDENTS MIGHT FOLLOW, OF COURSE, IN
CONNECTION WITH A TAX OR OTHER OBLIGATION THE COLLECTION OF WHICH IS
CONTROLLED BY STATE LAW.  BUT AN EXEMPT STATUS UNDER STATE LAW DOES NOT
BIND THE FEDERAL COLLECTOR.  FEDERAL LAW GOVERNS WHAT IS EXEMPT FROM
FEDERAL LEVY. 

"UPON ALL PROPERTY AND RIGHTS TO PROPERTY . . . BELONGING TO" THE
PERSON LIABLE FOR THE TAX.  SECTION 6331(A) AUTHORIZES LEVY "UPON ALL
PROPERTY AND RIGHTS TO PROPERTY . . . BELONGING TO SUCH PERSON . . .
."  WHAT IS EXEMPT FROM LEVY IS SPECIFIED IN SEC. 6334(A).  SECTION
6334(C) PROVIDES, "NOTWITHSTANDING ANY OTHER LAW OF THE UNITED STATES,
NO PROPERTY OR RIGHTS TO PROPERTY SHALL BE EXEMPT FROM LEVY OTHER THAN
THE PROPERTY SPECIFICALLY MADE EXEMPT BY SUBSECTION (A)."  THIS
LANGUAGE IS SPECIFIC AND IT IS CLEAR AND THERE IS NO ROOM IN IT FOR
AUTOMATIC EXEMPTION OF PROPERTY THT HAPPENS TO BE EXEMPT FROM STATE
LEVY UNDER STATE LAW.  UNITED STATES V. BESS, 357 U.S. 51, 56-57
(1958); SHAMBAUGH V. SCOFIELD, 132 F.2D 345 (CA5 1942); UNITED STATES
V. HEFFRON, 158 F.2D 657 (CA9), CERT. DENIED, 331 U.S. 831 (1947);
TREAS. REG. SEC. 301.6334-1(C).  SEE BIRCH V. DODT, 2 ARIZ.APP.  228,
407 P.2D 417 (1965).  AS A CONSEQUENCE, STATE LAW WHICH EXEMPTS A
HUSBAND'S INTEREST IN COMMUNITY PROPERTY FROM HIS PREMARITAL DEBTS DOES
NOT DEFEAT COLLECTION OF HIS FEDERAL INCOME TAX LIABILITY FOR
PREMARITAL TAX YEARS FROM HIS INTEREST IN THE COMMUNITY.  UNITED STATES
V. OVERMAN, 424 F.2D 1142, 1145 (CA9 1970); IN RE ACKERMAN, 424 F.2D
1148 (CA9 1970).  THE RESULT AS TO MRS. MITCHELL AND MRS. ANGELLO IS NO
DIFFERENT. 

IT MUST BE CONCEDED THAT THESE CASES ARE "HARD" CASES AND
EXCEEDINGLY UNFORTUNATE FOR THE TWO WOMEN TAXPAYERS.  /6/  MRS.
MITCHELL LOSES THE BENEFIT OF HER INHERITANCE FROM HER MOTHER, AN
INHERITANCE THAT RIPENED AFTER THE DISSOLUTION OF HER MARRIAGE.  MRS.
ANGELLO LOSES HER BENEFICIARY INTEREST IN HER DECEASED HUSBAND'S LIFE
INSURANCE POLICY.  THIS TAKES PLACE WITH EACH WIFE NOT REALLY AWARE OF
THE COMMUNITY TAX SITUATION, AND NOT REALLY IN A POSITION TO ASCERTAIN
THE DETAILS OF THE COMMUNITY INCOME.  THE LAW, HOWEVER, IS CLEAR.  THE
TAXES WERE DUE.  THEY WERE NOT PAID.  RETURNS WERE NOT EVEN FILED.  THE
"FAULT," IF FAULT THERE BE, LIES WITH THE FOUR TAXPAYERS AND FLOWS FROM
THE SETTLED PRINCIPLES OF THE COMMUNITY PROPERTY SYSTEM.  IF THE WIVES
WERE TO PREVAIL HERE, THEY WOULD HAVE THE BEST OF BOTH WORLDS. 

THE REMEDY IS IN LEGISLATION.  AN EXAMPLE IS PUB. L. 91-679 OF
JANUARY 12, 1971, 84 STAT. 2063, ADDING TO THE CODE SUBSECTION (E) OF
SEC. 6013 AND THE FINAL SENTENCE OF SEC. 6653(B).  THESE AMENDMENTS
AFFORD RELIEF TO AN INNOCENT SPOUSE, WHO WAS A PARTY TO A JOINT RETURN,
WITH RESPECT TO OMITTED INCOME AND FRAUDULENT UNDERPAYMENT.  RELIEF OF
THAT KIND IS THE ANSWER TO THE RESPONDENTS' SITUATION.     THE JUDGMENT
IN EACH CASE IS REVERSED. 

              IT IS SO ORDERED. 

/1/  ART. 2410.  "BOTH THE WIFE AND HER HEIRS OR ASSIGNS HAVE THE
PRIVILEGE OF BEING ABLE TO EXONERATE THEMSELVES FROM THE DEBTS
CONTRACTED DURING THE MARRIAGE, BY RENOUNCING THE PARTNERSHIP OR
COMMUNITY OF GAINS."     /2/  ACCORD, WITH RESPECT TO TEXAS LAW, RAMOS
V. COMMISSIONER, 429 F.2D 487 (CA5 1970). 

/3/  INTERNAL REVENUE CODE OF 1939, SECS. 11 AND 12; REVENUE ACT OF
1938, SECS. 11 AND 12, 52 STAT. 452, 453; REVENUE ACT OF 1936, SECS. 11
AND 12, 49 STAT. 1653; REVENUE ACT OF 1934, SECS. 11 AND 12, 48 STAT.
684; REVENUE ACT OF 1932, SECS. 11 AND 12, 47 STAT. 174; REVENUE ACT OF
1928, SECS. 11 AND 12, 45 STAT. 795, 796; REVENUE ACT OF 1926, SECS.
210 AND 211, 44 STAT. 21; REVENUE ACT OF 1924, SECS. 210 AND 211, 43
STAT. 264, 265; ACT OF MARCH 4, 1923, 42 STAT. 1507; REVENUE ACT OF
1921, SECS. 210 AND 211, 42 STAT. 233; REVENUE ACT OF 1918, SECS. 210
AND 211, 40 STAT. 1062; REVENUE ACT OF 1917, SECS. 1 AND 201, 40 STAT.
300, 303. 

/4/  ANGELLO BRIEF 2. 

/5/  ANGELLO BRIEF 2, 9. 

/6/  OF COURSE, AS BARON ROLFE LONG AGO OBSERVED, HARD CASES "ARE
APT TO INTRODUCE BAD LAW."  WINTERBOTTOM V. WRIGHT, 10 M. & W. 109,
116, 152 ENG.REP.  402, 406 (1842). 

WILLIAM TERRY BRAY ARGUED THE CAUSE FOR THE UNITED STATES ET AL.
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL WALTERS, MATTHEW J. ZINN, AND CROMBIE J. D. GARRETT. 

PAUL K. KIRKPATRICK, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT MITCHELL.  PATRICK M. SCHOTT ARGUED THE CAUSE AND FILED A
BRIEF FOR RESPONDENT ANGELLO. 
..END :












CONNELL V. HIGGINBOTHAM, 403 U.S. 207 


       CONNELL V. HIGGINBOTHAM ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

   DISTRICT OF FLORIDA

        NO. 79.  ARGUED NOVEMBER 19, 1970-- DECIDED JUNE 7, 1971 


FLORIDA'S STATUTORY LOYALTY OATH PROVISION REQUIRING A FLORIDA PUBLIC
EMPLOYEE AS AN EMPLOYMENT CONDITION TO SWEAR THAT HE WILL SUPPORT THE
FEDERAL AND STATE CONSTITUTIONS IS CONSTITUTIONALLY VALID.  THE PORTION
OF THE OATH REQUIRING HIM TO SWEAR THAT HE DOES NOT BELIEVE IN THE
VIOLENT OVERTHROW OF THE FEDERAL OR STATE GOVERNMENT IS INVALID AS
PROVIDING FOR HIS DISMISSAL WITHOUT HEARING OR INQUIRY REQUIRED BY DUE
PROCESS. 

305 F.SUPP.  445, AFFIRMED IN PART, REVERSED IN PART. 

PER CURIAM. 

THIS IS AN APPEAL FROM AN ACTION COMMENCED IN THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA CHALLENGING THE
CONSTITUTIONALITY OF SECS. 876.05-876.10 OF FLA. STAT. (1965), AND THE
VARIOUS LOYALTY OATHS UPON WHICH APPELLANT'S EMPLOYMENT AS A SCHOOL
TEACHER WAS CONDITIONED.  THE THREE-JUDGE U.S. DISTRICT COURT DECLARED
THREE OF THE FIVE CLAUSES CONTAINED IN THE OATHS TO BE
UNCONSTITUTIONAL, /1/  AND ENJOINED THE STATE FROM CONDITIONING
EMPLOYMENT ON THE TAKING OF AN OATH INCLUDING THE LANGUAGE DECLARED
UNCONSTITUTIONAL.  THE APPEAL IS FROM THAT PORTION OF THE DISTRICT
COURT DECISION WHICH UPHELD THE REMAINING TWO CLAUSES IN THE OATH:  I
DO HEREBY SOLEMNLY SWEAR OR AFFIRM (1) "THAT I WILL SUPPORT THE
CONSTITUTION OF THE UNITED STATES AND OF THE STATE OF FLORIDA"; AND (2)
"THAT I DO NOT BELIEVE IN THE OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES OR OF THE STATE OF FLORIDA BY FORCE OR VIOLENCE." 

ON JANUARY 16, 1969, APPELLANT MADE APPLICATION FOR A TEACHING
POSITION WITH THE ORANGE COUNTY SCHOOL SYSTEM.  SHE WAS INTERVIEWED BY
THE PRINCIPAL OF CALLAHAN ELEMENTARY SCHOOL, AND ON JANUARY 27, 1969,
APPELLANT WAS EMPLOYED AS A SUBSTITUTE CLASSROOM TEACHER IN THE FOURTH
GRADE OF THAT SCHOOL.  APPELLANT WAS DISMISSED FROM HER TEACHING
POSITION ON MARCH 18, 1969, FOR REFUSING TO SIGN THE LOYALTY OATH
REQUIRED OF ALL FLORIDA PUBLIC EMPLOYEES, FLA. STAT. SEC. 876.05. 

THE FIRST SECTION OF THE OATH UPHELD BY THE DISTRICT COURT,
REQUIRING ALL APPLICANTS TO PLEDGE TO SUPPORT THE CONSTITUTION OF THE
UNITED STATES AND OF THE STATE OF FLORIDA, DEMANDS NO MORE OF FLORIDA
PUBLIC EMPLOYEES THAN IS REQUIRED OF ALL STATE AND FEDERAL OFFICERS. 
U.S. CONST., ART. VI, CL. 3.  THE VALIDITY OF THIS SECTION OF THE OATH
WOULD APPEAR SETTLED.  SEE KNIGHT V. BOARD OF REGENTS, 269 F.SUPP.  339
(1967), AFF'D PER CURIAM, 390 U.S. 36 (1968); HOSACK V. SMILEY, 276
F.SUPP.  876 (1967), AFF'D PER CURIAM, 390 U.S. 744 (1968); OHLSON V.
PHILLIPS, 304 F.SUPP.  1152 (1969), AFF'D PER CURIAM, 397 U.S. 317
(1970). 

THE SECOND PORTION OF THE OATH, APPROVED BY THE DISTRICT COURT,
FALLS WITHIN THE AMBIT OF DECISIONS OF THIS COURT PROSCRIBING SUMMARY
DISMISSAL FROM PUBLIC EMPLOYMENT WITHOUT HEARING OR INQUIRY REQUIRED BY
DUE PROCESS.  SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551 (1956). 
CF. NOSTRAND V. LITTLE, 362 U.S. 474 (1960); SPEISER V. RANDALL, 357
U.S. 513 (1958).  THAT PORTION OF THE OATH, THEREFORE, CANNOT STAND. 

AFFIRMED IN PART, AND REVERSED IN PART. 

/1/  THE CLAUSES DECLARED UNCONSTITUTIONAL BY THE COURT BELOW
REQUIRED THE EMPLOYEE TO SWEAR:  (A) "THAT I AM NOT A MEMBER OF THE
COMMUNIST PARTY"; (B) "THAT I HAVE NOT AND WILL NOT LEND MY AID,
SUPPORT, ADVICE, COUNSEL OR INFLUENCE TO THE COMMUNIST PARTY"; AND (C)
"THAT I AM NOT A MEMBER OF ANY ORGANIZATION OR PARTY WHICH BELIEVES IN
OR TEACHES, DIRECTLY OR INDIRECTLY, THE OVERTHROW OF THE GOVERNMENT OF
THE UNITED STATES OR OF FLORIDA BY FORCE OR VIOLENCE." 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, CONCURRING IN THE RESULT. 

I AGREE THAT FLORIDA MAY REQUIRE STATE EMPLOYEES TO AFFIRM THAT THEY
"WILL SUPPORT THE CONSTITUTION OF THE UNITED STATES AND OF THE STATE OF
FLORIDA."  SUCH A FORWARD-LOOKING, PROMISSORY OATH OF CONSTITUTIONAL
SUPPORT DOES NOT IN MY VIEW OFFEND THE FIRST AMENDMENT'S COMMAND THAT
THE GRANT OR DENIAL OF GOVERNMENTAL BENEFITS CANNOT BE MADE TO TURN ON
THE POLITICAL VIEWPOINTS OF AFFILIATIONS OF A WOULD-BE BENEFICIARY.  I
ALSO AGREE THAT FLORIDA MAY NOT BASE ITS EMPLOYMENT DECISIONS, AS TO
STATE TEACHERS OR ANY OTHER HIRING CATEGORY, ON AN APPLICANT'S
WILLINGNESS VEL NON TO AFFIRM "THAT I DO NOT BELIEVE IN THE OVERTHROW
OF THE GOVERNMENT OF THE UNITED STATES OR OF THE STATE OF FLORIDA BY
FORCE OR VIOLENCE." 

HOWEVER, IN STRIKING DOWN THE LATTER OATH, THE COURT HAS LEFT THE
CLEAR IMPLICATION THAT ITS OBJECTION RUNS, NOT AGAINST FLORIDA'S
DETERMINATION TO EXCLUDE THOSE WHO "BELIEVE IN THE OVERTHROW," BUT ONLY
AGAINST THE STATE'S DECISION TO REGARD UNWILLINGNESS TO TAKE THE OATH
AS CONCLUSIVE, IRREBUTTABLE PROOF OF THE PROSCRIBED BELIEF.  DUE
PROCESS MAY RIGHTLY BE INVOKED TO CONDEMN FLORIDA'S MECHANISTIC
APPROACH TO THE QUESTION OF PROOF.  BUT IN MY VIEW IT SIMPLY DOES NOT
MATTER WHAT KIND OF EVIDENCE A STATE CAN MUSTER TO SHOW THAT A JOB
APPLICANT "BELIEVES) IN THE OVERTHROW."  FOR STATE ACTION INJURIOUS TO
AN INDIVIDUAL CANNOT BE JUSTIFIED ON ACCOUNT OF THE NATURE OF THE
INDIVIDUAL'S BELIEFS, WHETHER HE "BELIEVES) IN THE OVERTHROW" OR HAS
ANY OTHER SORT OF BELIEF.  "IF THERE IS ANY FIXED STAR IN OUR
CONSTITUTIONAL CONSTELLATION, IT IS THAT NO OFFICIAL, HIGH OR PETTY,
CAN PRESCRIBE WHAT SHALL BE ORTHODOX IN POLITICS, NATIONALISM,
RELIGION, OR OTHER MATTERS OF OPINION . . . ."  BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624, 642 (1943). 

I WOULD STRIKE DOWN FLORIDA'S "OVERTHROW" OATH PLAINLY AND SIMPLY ON
THE GROUND THAT BELIEF AS SUCH CANNOT BE THE PREDICATE OF GOVERMENTAL
ACTION. 

MR. JUSTICE STEWART, CONCURRING IN PART AND DISSENTING IN PART. 

THE COURT UPHOLDS AS CLEARLY CONSTITUTIONAL THE FIRST CLAUSE OF THE
OATH AS IT COMES TO US FROM THE THREE-JUDGE DISTRICT COURT:  "I WILL
SUPPORT THE CONSTITUTION OF THE UNITED STATES AND OF THE STATE OF
FLORIDA . . . ."  WITH THIS RULING I FULLY AGREE. 

AS TO THE SECOND CONTESTED CLAUSE OF THE OATH, "I DO NOT BELIEVE IN
THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF THE STATE OF
FLORIDA BY FORCE OR VIOLENCE," I WOULD REMAND TO THE DISTRICT COURT TO
GIVE THE PARTIES AN OPPORTUNITY TO GET FROM THE STATE COURTS AN
AUTHORITATIVE CONSTRUCTION OF THE MEANING OF THE CLAUSE.  IF THE CLAUSE
EMBRACES THE TEACHER'S PHILOSOPHICAL OR POLITICAL BELIEFS, I THINK IT
IS CONSTITUTIONALLY INFIRM.  BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1,
9-10 (CONCURRING OPINION); BOARD OF EDUCATION V. BARNETTE, 319 U.S.
624, 642; CANTWELL V. CONNECTICUT, 310 U.S. 296, 303-304.  IF ON THE
OTHER HAND, THE CLAUSE DOES NO MORE THAN TEST WHETHER THE FIRST CLAUSE
OF THE OATH CAN BE TAKEN "WITHOUT MENTAL RESERVATION OR PURPOSE OF
EVASION," I THINK IT IS CONSTITUTIONALLY VALID.  LAW STUDENTS CIVIL
RIGHTS RESEARCH COUNCIL, INC. V. WADMOND, 401 U.S. 154, 163-164.  THE
FLORIDA COURTS SHOULD, THEREFORE, BE GIVEN AN OPPORTUNITY TO CONSTRUE
THE CLAUSE BEFORE THE FEDERAL COURTS PASS ON ITS CONSTITUTIONALITY. 
SEE FORNARIS V. RIDGE TOOL CO., 400 U.S. 41, 43-44; REETZ V. BOZANICH,
397 U.S. 82, 85-87; RAILROAD CONN'N V. PULLMAN CO., 312 U.S. 496, 498
501. 

THE SUPREME COURT OF FLORIDA HAS EXPLICITLY HELD THAT THE VARIOUS
CLAUSES OF THE OATH ARE SEVERABLE.  CRAMP V. BOARD OF PUBLIC
INSTRUCTION, 137 SO.2D 828, 830-831. 

SANFORD JAY ROSEN ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WERE TOBIAS SIMON AND MELVIN L. WULF. 

STEPHEN MARC SLEPIN ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE RIVERS BUFORD, JR., AND JAMES W. MARKEL. 
..END :

















JOHNSON V. MISSISSIPPI, 403 U.S. 212 


       JOHNSON V. MISSISSIPPI

        CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

        NO. 5485.  ARGUED APRIL 21, 1971-- DECIDED JUNE 7, 1971 


IN A CHARGE OF CRIMINAL CONTEMPT AGAINST PETITIONER WHICH AROSE FROM
PETITIONER'S ALLEGED VIOLATION OF COURTROOM PROCEDURE DURING AN EARLIER
CRIMINAL TRIAL WHERE IT IS NOT CLEAR FROM THE RECORD THAT THE JUDGE WAS
PERSONALLY AWARE OF THE CONTEMPTUOUS ACTION WHEN IT OCCURRED,
PETITIONER SHOULD BE PROVIDED A FAIR HEARING WITH AN OPPORTUNITY TO
SHOW THAT THE VERSION OF THE EVENT RELATED TO THE JUDGE WAS INACCURATE,
MISLEADING, OR INCOMPLETE.  AND WHERE A MOTION THAT TRIAL JUDGE RECUSE
HIMSELF WAS SUPPORTED BY LAWYERS' AFFIDAVITS THAT THE JUDGE HAD
REVEALED DEEP PREJUDICE AGAINST CIVIL RIGHTS WORKERS, AND THE JUDGE WAS
A LOSING DEFENDANT IN A CIVIL RIGHTS SUIT BROUGHT BY PETITIONER, HE
SHOULD HAVE RECUSED HIMSELF FROM TRYING THE CHARGE. 

233 SO.2D 116, REVERSED AND REMANDED. 

PER CURIAM. 

PETITIONER, A DEFENDANT IN A CRIMINAL PROCEEDING IN THE CIRCUIT
COURT OF GRENADA COUNTY, MISSISSIPPI, WAS SUMMARILY CONVICTED OF
CRIMINAL CONTEMPT BY JUDGE MARSHALL PERRY OF THAT COURT. 

THE ALLEGED CONTEMPT OCCURRED ON JANUARY 23, 1967.  IT OCCURRED
AFTER JUDGE PERRY DIRECTED THE BAILIFFS AND DEPUTIES TO KEEP ALL PEOPLE
ENTERING THE COURTROOM FROM WALKING BETWEEN THE SPACE RESERVED FOR
JURORS AND COUNTY OFFICERS AND THE JUDGE, WHILE JURORS WERE BEING
CALLED.  A DEPUTY ATTEMPTED TO ROUTE PETITIONER AROUND THE AREA IN
QUESTION WHEREUPON, ACCORDING TO THE ORDERS OF ADJUDGING PETITIONER IN
CONTEMPT, HE SAID: 

     "WHAT THE HELL DO YOU MEAN GO AROUND. 

 "SAID JOHNSON, DEFENDANT, THEN CONTINUED TO STAND AND LOOK

  AROUND OVER THE ROOM, DISRUPTING THE COURT PROCEEDINGS." 

JUDGE PERRY, HOWEVER DID NOT TAKE INSTANT ACTION ON THE ALLEGED
CONTEMPT BUT ONLY HAD PETITIONER REMOVED FROM THE COURTROOM.  THE NEXT
DAY, JANUARY 24, HE ORDERED THAT PROCESS ISSUE AGAINST PETITIONER
DIRECTING HIM TO APPEAR FEBRUARY 1, 1967, AN ACTION HE LATER
RESCINDED.  ON JANUARY 27, 1967, PETITIONER, AN ACTIVE CIVIL RIGHTS
WORKER, ASKED THROUGH HIS ATTORNEY THAT JUDGE PERRY RECUSE HIMSELF,
ASSERTING: 

     "A.  THAT JUDGE PERRY IS PERSONALLY PREJUDICED AGAINST THE

  DEFENDANT AND AGAINST THE CIVIL RIGHTS ORGANIZATIONS HE

  REPRESENTS. 

     "B.  THAT JUDGE PERRY IS PERSONALLY PREJUDICED AGAINST THE

  LAWYERS' ORGANIZATION DEFENDING MR. JOHNSON, NAMELY THE LAWYERS'

  COMMITTEE FOR CIVIL RIGHTS UNDER LAW." 

THE MOTION WAS SUPPORTED BY TWO AFFIDAVITS OF LAWYERS THAT JUDGE
PERRY, THROUGH CHARGES MADE TO GRAND JURIES IN HIS COURTROOM, REVEALED
DEEP PREJUDICE AGAINST CIVIL RIGHTS WORKERS AND CIVIL RIGHTS LAWYERS. 

NO HEARING WAS EVER GRANTED ON THAT MOTION. 

WHEN PETITIONER WAS REMOVED FROM THE COURTROOM ON JANUARY 23, 1967,
HIS LAWYER, ONE ROWE, OBJECTED TO JUDGE PERRY'S ACTION.  JUDGE PERRY
ORDERED ROWE ARRESTED AND CHARGED WITH CRIMINAL CONTEMPT.  ON JANUARY
31, 1967, A FEDERAL COURT IN MISSISSIPPI ISSUED A TEMPORARY RESTRAINING
ORDER ENJOINING TRIAL OF THE CONTEMPT CHARGE AGAINST ROWE; AND WE ARE
ADVISED THAT THAT CHARGE HAS NEVER BEEN FURTHER PROSECUTED. 

ON FEBRUARY 1, 1967, PETITIONER FILED A PETITION FOR REMOVAL OF THE
CONTEMPT PROCEEDINGS IN HIS CASE TO THE FEDERAL COURT.  ON NOVEMBER 14,
1968, THAT COURT REMANDED THE CASE TO JUDGE PERRY'S COURT.  THEREUPON
JUDGE PERRY ORDERED THAT A $1,000 BOND BE POSTED GUARANTEEING
PETITIONER'S APPEARANCE ON JANUARY 27, 1969, TO ANSWER THE CONTEMPT
CHARGE. 

ON JANUARY 22, 1969, PETITIONER AND OTHERS FILED SUIT IN THE FEDERAL
COURT TO ENJOIN TRIALS OF EITHER NEGROES OR WOMEN IN THE CIRCUIT COURT
OF GRENADA COUNTY UNTIL SUCH TIME AS NEGROES AND WOMEN WERE NOT
SYSTEMATICALLY EXCLUDED FROM JURIES.  JUDGE PERRY WAS NAMED AS A
DEFENDANT.  THE FEDERAL COURT HELD A HEARING ON JANUARY 24, 1969, AND
ON JANUARY 25, 1969, TEMPORARILY ENJOINED JUDGE PERRY FROM
DISCRIMINATION "BY REASON OF RACE, COLOR, OR SEX" IN JURY SELECTIONS. 

TWO DAYS LATER, JANUARY 27, 1969, JUDGE PERRY ADJUDGED PETITIONER IN
CONTEMPT AND SENTENCED HIM TO FOUR MONTHS AND SET BAIL AT $2,000
PENDING APPEAL.  HE DENIED PETITIONER'S REQUEST FOR A HEARING ON THE
MERITS AND FOR AN OPPORTUNITY TO SHOW WHY JUDGE PERRY SHOULD RECUSE
HIMSELF.  ON APPEAL THE SUPREME COURT OF MISSISSIPPI AFFIRMED THE
CONTEMPT BUT REDUCED THE SENTENCE TO ONE MONTH.  233 SO.2D 116.  THE
CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED. 
400 U.S. 991. 

INSTANT ACTION MAY BE NECESSARY WHERE THE MISBEHAVIOR IS IN THE
PRESENCE OF THE JUDGE AND IS KNOWN TO HIM, AND WHERE IMMEDIATE
CORRECTIVE STEPS ARE NEEDED TO RESTORE ORDER AND MAINTAIN THE DIGNITY
AND AUTHORITY OF THE COURT.  COOKE V. UNITED STATES, 267 U.S. 517, 534;
HARRIS V. UNITED STATES, 382 U.S. 162, 165.  THE CONTEMPT POWER IS
WITHIN THE JUDGE'S "ARSENAL OF AUTHORITY" WHICH WE RECENTLY DESCRIBED
IN ILLINOIS V. ALLEN, 397 U.S. 337.  BUT THERE WAS NO INSTANT ACTION
HERE, A WEEK EXPIRING BEFORE REMOVAL OF THE CASE TO THE FEDERAL COURT
WAS SOUGHT. 

MOREOVER, FROM THIS RECORD WE CANNOT BE SURE THAT JUDGE PERRY WAS
PERSONALLY AWARE OF THE CONTEMPTUOUS ACTION WHEN IT OCCURRED.  THE
STATE'S VERSION OF WHAT HAPPENED IS DESCRIBED AS FOLLOWS IN ITS MOTION
THAT PETITIONER SHOW CAUSE WHY HE SHOULD NOT BE PUNISHED FOR CONTEMPT: 

     "(THE SHERIFF AND DEPUTY SHERIFF, HOWARD HAYWARD SEIZED ROBERT

  JOHNSON AND IMMEDIATELY CARRIED HIM BEFORE THE CIRCUIT JUDGE,

  MARSHALL PERRY, AND RELATED TO THE JUDGE WHAT HAD TRANSPIRED." 

AS WE SAID IN RE OLIVER, 333 U.S. 257, 275-276, 

"IF SOME ESSENTIAL ELEMENTS OF THE OFFENSE ARE NOT PERSONALLY
OBSERVED BY THE JUDGE, SO THAT HE MUST DEPEND UPON STATEMENTS MADE BY
OTHERS FOR HIS KNOWLEDGE ABOUT THESE ESSENTIAL ELEMENTS, DUE PROCESS
REQUIRES . . . THAT THE ACCUSED BE ACCORDED NOTICE AND A FAIR HEARING .
. . ."  AND SEE IN RE SAVIN, 131 U.S. 267, 277. 

IT WOULD, THEREFORE, SEEM THAT A FAIR HEARING WOULD ENTAIL THE
OPPORTUNITY TO SHOW THAT THE VERSION OF THE EVENT RELATED TO THE JUDGE
WAS INACCURATE, MISLEADING, OR INCOMPLETE. 

WE MENTION THIS LATTER POINT BECAUSE OUR REMAND WILL ENTAIL A
HEARING BEFORE ANOTHER JUDGE.  IN CONCLUDING THAT JUDGE PERRY SHOULD
HAVE RECUSED HIMSELF, WE DO NOT RELY SOLELY ON THE AFFIDAVITS FILED BY
THE LAWYERS RECITING INTEMPERATE REMARKS OF JUDGE PERRY CONCERNING
CIVIL RIGHTS LITIGANTS.  BEYOND ALL THAT WAS THE FACT THAT JUDGE PERRY
IMMEDIATELY PRIOR TO THE ADJUDICATION OF CONTEMPT WAS A DEFENDANT IN
ONE OF PETITIONER'S CIVIL RIGHTS SUITS AND A LOSING PARTY AT THAT. 
FROM THAT IT IS PLAIN THAT HE WAS SO ENMESHED IN MATTERS INVOLVING
PETITIONER AS TO MAKE IT MOST APPROPRIATE FOR ANOTHER JUDGE TO SIT. 
TRIAL BEFORE "AN UNBIASED JUDGE" IS ESSENTIAL TO DUE PROCESS.  BLOOM V.
ILLINOIS, 391 U.S. 194, 205; MAYBERRY V. PENNSYLVANIA, 400 U.S. 455,
465. 

WE ACCORDINGLY REVERSE THE JUDGMENT BELOW AND REMAND THE CASE FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

STEPHEN W. PORTER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS RICHARD B. RUGE. 

G. GARLAND LYELL, JR., ASSISTANT ATTORNEY GENERAL OF MISSISSIPPI,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS A. F.
SUMMER, ATTORNEY GENERAL. 
..END :





UTAH V. UNITED STATES, 406 U.S. 484 


       UTAH V. UNITED STATES

        NO. 31, ORIG.  DECIDED JUNE 7, 1971-- DECREE ENTERED MAY
22,

           1972 


OPINION REPORTED:  403 U.S. 9. 

       DECREE 

IT IS ORDERED, ADJUDGED AND DECREED THAT: 

1.  THE UNITED STATES OF AMERICA, ITS DEPARTMENTS AND AGENCIES ARE
ENJOINED, SUBJECT TO ANY REGULATIONS WHICH THE CONGRESS MAY IMPOSE,
SUCH AS IN THE INTEREST OF NAVIGATION OR POLLUTION CONTROL, FROM
ASSERTING AGAINST THE STATE OF UTAH ANY CLAIM OF RIGHT, TITLE, AND
INTEREST: 

     (A) TO THE BED OF THE GREAT SALT LAKE LYING BELOW THE WATER'S

  EDGE OF GREAT SALT LAKE ON JUNE 15, 1967, /1/  WITH THE EXCEPTION

  OF ANY LANDS WITHIN THE BEAR RIVER MIGRATORY BIRD REFUGE AND THE

  WEBER BASIN FEDERAL RECLAMATION PROJECT; 

     (B) TO THE NATURAL RESOURCES AND LIVING ORGANISMS IN OR
BENEATH

THE BED OF THE GREAT SALT LAKE AS DELINEATED IN (A) ABOVE; AND 

     (C) TO THE NATURAL RESOURCES AND LIVING ORGANISMS EITHER
WITHIN

  THE WATERS OF THE GREAT SALT LAKE, OR EXTRACTED THEREFROM, AS

  DELINEATED IN (A) ABOVE. 

2.  THE STATE OF UTAH IS NOT REQUIRED TO PAY THE UNITED STATES,
THROUGH THE SECRETARY OF THE INTERIOR, FOR THE LANDS, INCLUDING ANY
MINERALS, DELINEATED IN PARAGRAPH 1 ABOVE OF THIS DECREE. 

3.  THE BASIC QUESTION YET TO BE DETERMINED IN THIS CASE IS WHETHER
PRIOR TO JUNE 15, 1967, THE CLAIMED DOCTRINE OF RELICTION APPLIES AND,
IF SO, WHETHER THE DOCTRINE OF RELICTION VESTS IN THE UNITED STATES,
AND THUS DIVESTS THE STATE OF UTAH, OF ANY RIGHT, TITLE, OR INTEREST TO
ANY OR ALL OF THE EXPOSED SHORELANDS SITUATED BETWEEN THE WATER'S EDGE
ON JUNE 15, 1967, AND THE MEANDER LINE OF THE GREAT SALT LAKE AS DULY
SURVEYED PRIOR TO OR IN ACCORDANCE WITH SEC. 1 OF THE ACT OF JUNE 3,
1966, 80 STAT. 192.  A SPECIAL MASTER WILL BE APPOINTED BY THE COURT TO
HOLD SUCH HEARINGS, TAKE SUCH EVIDENCE, AND CONDUCT SUCH PROCEEDINGS AS
HE DEEMS APPROPRIATE AND, IN DUE COURSE, TO REPORT HIS RECOMMENDATIONS
TO THE COURT. 

4.  THERE ALSO REMAINS THE QUESTION WHETHER THE LANDS WITHIN THE
MEANDER LINE OF THE GREAT SALT LAKE (AS DULY SURVEYED PRIOR TO OR IN
ACCORDANCE WITH SEC. 1 OF THE ACT OF JUNE 3, 1966, 80 STAT. 192), AND
THUS CONVEYED TO THE STATE OF UTAH, INCLUDED ANY FEDERALLY OWNED
UPLANDS ABOVE THE BED OF THE LAKE ON THE DATE OF STATEHOOD (JANUARY 4,
1896) WHICH THE UNITED STATES STILL OWNED PRIOR TO THE CONVEYANCE TO
UTAH.  THE SPECIAL MASTER APPOINTED BY THE COURT AS PROVIDED IN
PARAGRAPH 3 ABOVE WILL ALSO BE DIRECTED TO HOLD SUCH HEARINGS, TAKE
SUCH EVIDENCE, AND CONDUCT SUCH PROCEEDINGS WITH RESPECT TO THIS
QUESTION AS HE DEEMS APPROPRIATE IN LIGHT OF HIS DETERMINATIONS WITH
RESPECT TO THE ISSUES REFERRED TO HIM IN PARAGRAPH 3 ABOVE AND, IN DUE
COURSE, TO REPORT HIS RECOMMENDATIONS TO THE COURT. 

5.  THE PRAYER OF THE UNITED STATES OF AMERICA IN ITS ANSWER TO THE
STATE OF UTAH'S COMPLAINT THAT THIS COURT "CONFIRM, DECLARE AND
ESTABLISH THAT THE UNITED STATES IS THE OWNER OF ALL RIGHT, TITLE AND
INTEREST IN ALL OF THE LANDS DESCRIBED IN SECTION 2 OF THE ACT OF JUNE
3, 1966, 80 STAT. 192, AS AMENDED BY THE ACT OF AUGUST 23, 1966, 80
STAT. 349, AND THAT THE STATE OF UTAH IS WITHOUT ANY RIGHT, TITLE OR
INTEREST IN SUCH LANDS, SAVE FOR THE RIGHT TO HAVE THESE LANDS CONVEYED
TO IT BY THE UNITED STATES, AND TO PAY FOR THEM, IN ACCORDANCE WITH THE
PROVISIONS OF THE ACT OF JUNE 3, 1966, AS AMENDED," IS DENIED. 

/1/  THE DATE OF THE DEED FROM THE UNITED STATES TO UTAH. 
..END :














CONNOR V. JOHNSON, 402 U.S. 690 


       CONNOR ET AL. V. JOHNSON ET AL.

        ON APPLICATION FOR STAY

        DECIDED JUNE 3, 1971 


A THREE-JUDGE DISTRICT COURT INVALIDATED MISSISSIPPI APPORTIONMENT
STATUTE AS ALLOWING IMPERMISSIBLY LARGE VARIATIONS AMONG ELECTION
DISTRICTS.  THE COURT STATED THAT SINGLE-MEMBER DISTRICTS "WOULD BE
IDEAL," BUT IN LIGHT OF A JUNE 4, 1971, DEADLINE FOR FILING NOTICES OF
CANDIDACY, ISSUED ITS APPORTIONMENT PLAN PROVIDING FOR SOME MULTI
MEMBER DISTRICTS, INCLUDING HINDS COUNTY.  APPLICANTS, WHO HAD QUICKLY
SUBMITTED FOUR PLANS CALLING FOR SINGLE-MEMBER DISTRICTS IN HINDS
COUNTY, ASK FOR A STAY OF THAT JUDGMENT AND AN EXTENSION OF THE FILING
DEADLINE UNTIL THE DISTRICT COURT PROVIDES SINGLE-MEMBER DISTRICTS FOR
HINDS COUNTY, OR UNTIL THE ATTORNEY GENERAL OR THE DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA APPROVES THE DISTRICT COURT'S APPORTIONMENT
PLAN UNDER SEC. 5 OF THE VOTING RIGHTS ACT OF 1965.  HELD: A STAY IS
GRANTED UNTIL JUNE 14, 1971. 

(A) A DECREE OF A DISTRICT COURT IS NOT WITHIN THE REACH OF SEC. 5
OF THE VOTING RIGHTS ACT OF 1965. 

(B) SINGLE-MEMBER DISTRICTS ARE GENERALLY PREFERABLE TO LARGE MULTI
MEMBER DISTRICTS IN COURT-FASHIONED APPORTIONMENT PLANS. 

(C) IN VIEW OF THE AVAILABILITY OF 1970 CENSUS DATA AND THE DISPATCH
WITH WHICH APPLICANTS DEVISED THEIR PLANS, THE DISTRICT COURT IS
INSTRUCTED, ABSENT INSURMOUNTABLE DIFFICULTIES, TO DEVISE AND PUT INTO
EFFECT A SINGLE-MEMBER DISTRICT PLAN FOR HINDS COUNTY BY JUNE 14, 1971,
AND TO EXTEND APPROPRIATELY THE FILING DATE FOR CANDIDATES FROM THAT
COUNTY. 

PER CURIAM. 

ON MAY 14, 1971, A THREE-JUDGE DISTRICT COURT, CONVENED IN THE
SOUTHERN DISTRICT OF MISSISSIPPI, INVALIDATED THE MISSISSIPPI
LEGISLATURE'S LATEST REAPPORTIONMENT STATUTE AS ALLOWING IMPERMISSIBLY
LARGE VARIATIONS AMONG HOUSE AND SENATE DISTRICTS.  THE PARTIES WERE
REQUESTED BY THE COURT TO SUBMIT SUGGESTED PLANS, AND THE APPLICANTS
DID SO ON MAY 17.  ALL FOUR PLANS SUGGESTED BY APPLICANTS UTILIZED
SINGLE-MEMBER DISTRICTS EXCLUSIVELY IN HINDS COUNTY.  THE FOLLOWING
DAY, MAY 18, THE COURT ISSUED ITS OWN PLAN, WHICH INCLUDED SINGLE- AND
MULTI-MEMBER DISTRICTS IN EACH HOUSE; HINDS COUNTY WAS CONSTITUTED AS A
MULTI-MEMBER DISTRICT ELECTING FIVE SENATORS AND 12 REPRESENTATIVES. 
THE COURT EXPRESSED SOME RELUCTANCE OVER USE OF MULTI-MEMBER DISTRICTS
IN COUNTIES ELECTING FOUR OR MORE SENATORS OR REPRESENTATIVES, SAYING:
"(IT WOULD BE IDEAL IF (SUCH COUNTIES) COULD BE DIVIDED INTO DISTRICTS,
FOR THE ELECTION OF ONE MEMBER (FROM) THE DISTRICT."  HOWEVER, IN VIEW
OF THE JUNE 4, 1971, DEADLINE FOR FILING NOTICES OF CANDIDACY, THE
COURT CONCLUDED THAT:  "(WITH THE TIME LEFT AVAILABLE IT IS A MATTER OF
SHEER IMPOSSIBILITY TO OBTAIN DEPENDABLE DATA, POPULATION FIGURES,
BOUNDARY LOCATIONS, ETC. SO AS FAIRLY AND CORRECTLY TO DIVIDE THESE
COUNTIES INTO DISTRICTS FOR THE ELECTION OF SINGLE MEMBERS OF THE
SENATE OF THE HOUSE IN TIME FOR THE ELECTIONS OF 1971."  THE COURT
PROMISED TO APPOINT A SPECIAL MASTER IN JANUARY 1972 TO INVESTIGATE THE
POSSIBILITY OF SINGLE-MEMBER DISTRICTS FOR THE GENERAL ELECTION OF 1975
AND 1979. 

APPLICANTS MOVED THE DISTRICT COURT TO STAY ITS ORDER.  THE MOTION
WAS DENIED ON MAY 24.  APPLICANTS HAVE NOW APPLIED TO THIS COURT FOR A
STAY OF THE DISTRICT COURT'S ORDER AND FOR AN EXTENSION OF THE JUNE 4
FILING DEADLINE UNTIL THE DISTRICT COURT SHALL HAVE PROVIDED SINGLE
MEMBER DISTRICTS IN HINDS COUNTY, OR UNTIL THE ATTORNEY GENERAL OR THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA APPROVES THE DISTRICT
COURT'S APPORTIONMENT PLAN UNDER SECTION 5 OF THE VOTING RIGHTS ACT OF
1965, 79 STAT. 439, 42 U.S.C. 1973C (1964 ED., SUPP. V). 

INSOFAR AS APPLICANTS ASK RELIEF UNDER THE VOTING RIGHTS ACT THE
MOTION FOR STAY IS DENIED.  A DECREE OF THE UNITED STATES DISTRICT
COURT IS NOT WITHIN REACH OF SECTION 5 OF THE VOTING RIGHTS ACT. 
HOWEVER, OTHER REASONS LEAD US TO GRANT THE MOTION TO THE EXTENT
INDICATED BELOW. 

IN FAILING TO DEVISE SINGLE-MEMBER DISTRICTS, THE COURT WAS UNDER
THE BELIEF THAT INSUFFICIENT TIME REMAINED UNTIL JUNE 4, THE DEADLINE
FOR THE FILING OF NOTICES OF CANDIDACY.  YET AT THAT TIME JUNE 4 WAS 17
DAYS AWAY AND, ACCORDING TO AN UNCONTRADICTED STATEMENT IN THE BRIEF
SUPPORTING THIS MOTION, THE APPLICANTS WERE ABLE TO FORMULATE AND OFFER
TO THE COURT FOUR SINGLE-MEMBER DISTRICT PLANS FOR HINDS COUNTY IN THE
SPACE OF THREE DAYS.  ALSO ACCORDING TO UNCONTRADICTED STATEMENTS,
THESE PLANS WERE BASED ON DATA WHICH INCLUDED COUNTY MAPS SHOWING
EXISTING POLITICAL SUBDIVISIONS, THE SUPERVISORY DISTRICTS USED BY THE
CENSUS BUREAU FOR THE TAKING OF THE 1970 CENSUS, OFFICIAL 1970 CENSUS
BUREAU "FINAL POPULATION COUNTS," AND "COMPUTER PRINT-OUT FROM CENSUS
BUREAU OFFICIAL COMPUTER TAPES SHOWING TOTAL AND WHITE/NEGRO POPULATION
BY CENSUS ENUMERATION DISTRICTS."  APPLICANTS ALSO ASSERT THAT NO OTHER
POPULATION FIGURES WILL SUBSEQUENTLY BECOME AVAILABLE. 

THE DISTRICT COURT'S JUDGMENT WAS THAT SINGLE-MEMBER DISTRICTING
WOULD BE "IDEAL" FOR HINDS COUNTY.  WE AGREE THAT WHEN DISTRICT COURTS
ARE FORCED TO FASHION APPORTIONMENT PLANS, SINGLE-MEMBER DISTRICTS ARE
PREFERABLE TO LARGE MULTI-MEMBER DISTRICTS AS A GENERAL MATTER. 
FURTHERMORE, GIVEN THE CENSUS INFORMATION APPARENTLY AVAILABLE AND
DISPATCH WITH WHICH THE APPLICANTS DEVISED SUGGESTED PLANS FOR THE
DISTRICT COURT, IT IS OUR VIEW THAT, ON THIS RECORD, THE DISTRICT COURT
HAD AMPLE TIME TO DEVISE SINGLE-MEMBER DISTRICTS FOR HINDS COUNTY PRIOR
TO THE JUNE 4 FILING DEADLINE.  WHILE MEETING THE JUNE 4 DATE IS NO
LONGER POSSIBLE, THERE IS NOTHING BEFORE US TO SUGGEST ANY
INSURMOUNTABLE BARRIER TO DEVISING SUCH A PLAN BY JUNE 14, 1971. 
THEREFORE THE MOTION FOR STAY IS GRANTED AND THE JUDGMENT BELOW IS
STAYED UNTIL JUNE 14.  THE DISTRICT COURT IS INSTRUCTED, ABSENT
INSURMOUNTABLE DIFFICULTIES, TO DEVISE AND PUT INTO EFFECT A SINGLE
MEMBER DISTRICT PLAN FOR HINDS COUNTY BY THAT DATE.  IN LIGHT OF THIS
DISPOSITION, THE DISTRICT COURT IS DIRECTED TO EXTEND THE JUNE 4 FILING
DATE FOR LEGISLATIVE CANDIDATES FROM HINDS COUNTY TO AN APPROPRIATE
DATE SO THAT THOSE CANDIDATES AND THE STATE OF MISSISSIPPI MAY ACT IN
LIGHT OF THE NEW DISTRICTS INTO WHICH HINDS COUNTY WILL BE DIVIDED. 

IT IS SO ORDERED. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE HARLAN DISSENT
AND RESERVE THE RIGHT TO FILE AN OPINION TO THAT EFFECT. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
HARLAN JOIN, DISSENTING.  /1/ 

I STRONGLY DISSENT FROM THE STAY ORDER OF JUNE 3, 1971, MORE
PARTICULARLY AS IT RELATES TO A POSTPONEMENT OF THE HINDS COUNTY,
MISSISSIPPI, ELECTION.  UNDER MISSISSIPPI LAW AND THE DECREES OF THE
THREE-JUDGE COURT, HINDS COUNTY CANDIDATES FOR THE STATE LEGISLATURE
WOULD BE ELECTED FROM THE COUNTY AT LARGE.  BUT THIS COURT-- AT THE
ELEVENTH HOUR-- NOW COMMANDS THE DISTRICT COURT TO CHANGE ITS DECREE
AND DIVIDE HINDS COUNTY INTO SINGLE-MEMBER DISTRICTS SO THAT EACH VOTER
THERE CAN VOTE FOR ONLY ONE STATE REPRESENTATIVE AND ONE STATE
SENATOR.  UNDER MISSISSIPPI LAW, THE FINAL FILING DATE FOR CANDIDATES
IS JUNE 4.  THIS COURT'S ORDER NOW POSTPONES THAT DEADLINE TO "AN
APPROPRIATE DATE" AFTER JUNE 14.  THE ORDER COMPELS CANDIDATES WHO HAD
EXPECTED TO RUN COUNTYWIDE TO CHANGE THEIR PLANS COMPLETELY AND TO
CAMPAIGN ONLY IN A PARTICULAR DISTRICT WHICH IS PART OF THE COUNTY. 
THE CONFUSION IS COMPOUNDED BECAUSE THE CANDIDATES DO NOT YET KNOW
WHERE THE DISTRICT LINES WILL BE DRAWN.  ANY CANDIDATE WOULD BE
DUMBFOUNDED BY THE THOUGHT THAT HIS OLD DISTRICT HAD SUDDENLY BEEN
ABOLISHED ON THE EVE OF THE FILING DATE AND HE MUST NOW RUN IN A NEW
BUT UNSPECIFIED DISTRICT WHICH IS STILL ONLY A DREAM IN THE EYES OF THE
UNITED STATES SUPREME COURT SITTING A THOUSAND MILES FROM HINDS
COUNTY. 

THIS ABRUPT ORDER BY THE COURT IS ALL THE MORE ASTOUNDING SINCE THIS
COURT HAS CONSISTENTLY APPROVED MULTI-MEMBER DISTRICTS FOR STATE
LEGISLATURES.  BURNETTE V. DAVIS, 382 U.S. 42 (1965); FORTSON V.
DORSEY, 379 U.S. 433 (1965); BURNS V. RICHARDSON, 384 U.S. 73 (1966). 

I DO NOT DENY THAT THIS COURT HAS THE SHEER, RAW POWER TO IMPOSE
SINGLE-MEMBER DISTRICTS ON HINDS COUNTY.  I DO, HOWEVER, STRONGLY
OBJECT TO THIS COURT'S EXERCISING THAT POWER BY THROWING A MONKEY
WRENCH INTO THE COUNTY ELECTION PROCEDURE AT THIS LATE DATE. 

ABOVE ALL ELSE, WE SHOULD REMEMBER THAT NO ONE OF US IS A RESIDENT
OF MISSISSIPPI OR THE JUDICIAL CIRCUIT OF WHICH MISSISSIPPI IS A PART. 
THE JUDGES WHO ENTERED THIS ORDER DO RESIDE IN THAT CIRCUIT, THEY HEARD
THE EVIDENCE AND ORAL ARGUMENTS, AND EXAMINED THE STATISTICS.  WE
SHOULD NOT FORGET THEY CONCLUDED THAT: 

     "THERE IS NO EVADING THE FACT THAT WITH THE TIME LEFT
AVAILABLE

  IT IS A MATTER OF SHEER IMPOSSIBILITY TO OBTAIN DEPENDABLE DATA,

  POPULATION FIGURES, BOUNDARY LOCATIONS, ETC. SO AS FAIRLY AND

  CORRECTLY TO DIVIDE THESE COUNTIES INTO DISTRICTS FOR THE

  ELECTION OF SINGLE MEMBERS OF THE SENATE OR THE HOUSE IN TIME FOR

  THE ELECTIONS OF 1971." 

THE HOLDING OF A COUNTY ELECTION IS A DIFFICULT, INTRICATE, AND TIME
CONSUMING PROCESS.  ORDERS MUST BE FILED, BALLOTS PRINTED, CAMPAIGNING
PLANS LAID, AND OFFICIALS APPOINTED.  MANY DIFFERENT PROCEDURES MUST BE
CAREFULLY SYNCHRONIZED IF THE ELECTIONS ARE TO BE EFFICIENTLY AND
FAIRLY ADMINISTERED.  BUT TODAY THE COURT PLUNGES INTO AN UNFAMILIAR
ARENA AND CREATES UTTER CONFUSION FOR THE VOTERS, CANDIDATES, AND
OFFICIALS OF HINDS COUNTY BY SUBJECTING THEM TO THE JUDICIAL BRANCH OF
FEDERAL GOVERNMENT. 

NEEDLESS TO SAY I COMPLETLY AGREE WITH THE HOLDING OF THE MAJORITY
THAT A REAPPORTIONMENT PLAN FORMULATED AND ORDERED BY A FEDERAL
DISTRICT COURT NEED NOT BE APPROVED BY THE UNITED STATES ATTORNEY
GENERAL OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA.  UNDER OUR CONSTITUTIONAL SYSTEM IT WOULD BE STRANGE INDEED
TO CONSTRUE SEC. 5 OF THE VOTING RIGHTS ACT OF 1965, 79 STAT. 439, 42
U.S.C. 1973C (1964 ED., SUPP. V), TO REQUIRE THAT ACTIONS OF A FEDERAL
COURT BE STAYED AND REVIEWED BY THE ATTORNEY GENERAL OR THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. 

I DISSENT. 

/1/  (NOTE:  THIS OPINION WAS FILED JUNE 4, 1971.) 
..END :














UNITED STATES V. GREATER BUFFALO PRESS, 402 U.S. 549 


       UNITED STATES V. GREATER BUFFALO PRESS, INC., ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF NEW YORK

NO. 821.  ARGUED APRIL 19, 1971-- DECIDED JUNE 1, 1971 


THE UNITED STATES BROUGHT THIS CIVIL ANTITRUST SUIT CHARGING THAT THE
ACQUISITION BY GREATER BUFFALO PRESS (BUFFALO) IN 1955 OF ALL THE STOK
OF INTERNATIONAL COLOR PRINTING CO. (INTERNATIONAL) VIOLATED SEC. 7 OF
THE CLAYTON ACT; AND THAT BUFFALO, HEARST CORP., THROUGH ITS
UNINCORPORATED DIVISION KING FEATURES SYNDICATE (KING), NEWSPAPER
ENTERPRISE ASSN., AND OTHERS HAD CONSPIRED TO RESTRAIN THE SALE TO
NEWSPAPERS OF THE PRINTING OF COLOR COMIC SUPPLEMENTS IN VIOLATION OF
SEC. 1 OF THE SHERMAN ACT.  BEFORE TRIAL A CONSENT DECREE WAS ENTERED
AGAINST HEARST.  BUFFALO, WHICH DOES NOT CONTROL OWNERSHIP OF FEATURES
OR LICENSE THEM, PRINTS THE COLOR SUPPLEMENTS FOR NEWSPAPERS AND SELLS
THEM.  INTERNATIONAL PRINTS COLOR SUPPLEMENTS ONLY FOR KIND, WHICH
CONTROLS MANY POPULAR COMIC FEATURES AND IS A LICENSOR. 
INTERNATIONAL'S OWNERS WANTED TO SELL RATHER THAN RAISE CAPITAL FOR
MODERNIZATION AND EXPANSION.  INTERNATIONAL PAID DIVIDENDS EVERY YEAR,
AND IN THE YEAR OF SALE ITS PROFITS INCREASED.  ONLY KING AND BUFFALO
WERE CONSIDERED AS PROSPECTIVE PURCHASERS; NO OTHERS WERE EVEN
APPROACHED.  AFTER ACQUIRING INTERNATIONAL, BUFFALO CONTROLLED ABOUT
75% OF THE INDEPENDENT COLOR COMIC SUPPLEMENT BUSINESS AND, THROUGH
INTERNATIONAL, IT ENTERED INTO A 10-YEAR CONTRACT WITH KING TO SUPPLY
KING'S PRINTING.  THE DISTRICT COURT DISMISSED THE COMPLAINT AFTER
TRIAL.  AS TO THE CLAYTON ACT CLAIM, IT FOUND TWO DISTINCT LINES OF
COMMERCE:  (1) PRINTING OF COLOR COMIC SUPPLEMENTS FOR NEWSPAPERS NOT
PRINTING THEIR OWN, AND (2) PRINTING OF COLOR COMIC SUPPLEMENTS FOR
SYNDICATES SELLING COPYRIGHTED FEATURES TO NEWSPAPERS.  THAT COURT ALSO
FOUND THE ACQUISITION TO BE WITHIN THE "FAILING COMPANY" EXCEPTION TO
SEC. 7 OF THE CLAYTON ACT.  THE UNITED STATES APPEALS ONLY FROM
DISMISSAL OF THE CLAYTON ACT CLAIM.  THE COURT DID NOT REACH THE
QUESTION OF REMEDY.  HELD: 

1.  THE LINE OF COMMERCE HERE IS THE COLOR COMIC SUPPLEMENT PRINTING
BUSINESS, WHICH INCLUDES THE PRINTING OF THE SUPPLEMENTS AND THEIR
SALE, AND THE "AREA OF EFFECTIVE COMPETITION" ENCOMPASSES THE BUSINESS
OF BUFFALO, INTERNATIONAL, AND KING.  WHILE THERE MAY BE SUBMARKETS
WITHIN THIS BROAD MARKET, "SUBMARKETS ARE NOT A BASIS FOR THE DISREGARD
OF A BROADER LINE OF COMMERCE THAT HAS ECONOMIC SIGNIFICANCE."  PP. 552
554. 

2.  THE TEST OF SEC. 7 OF THE CLAYTON ACT, WHETHER THE EFFECT OF AN
ACQUISITION "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION," IS MET HERE
BY BUFFALO'S CONTROL OF ABOUT 75% OF THE INDEPENDENT COLOR COMIC
SUPPLEMENT PRINTING BUSINESS.  P. 555. 

3.  THE DISTRICT COURT ERRED IN FINDING THAT THE ACQUISITION WAS
WITHIN THE "FAILING COMPANY" EXCEPTION, AS THE TWO REQUIREMENTS, (A)
THAT INTERNATIONAL'S RESOURCES WERE "SO DEPLETED AND THE PROSPECT OF
REHABILITATION SO REMOTE THAT IT FACED THE GRAVE PROBABILITY OF A
BUSINESS FAILURE," AND (B) THAT THERE WAS NO OTHER PROSPECTIVE
PURCHASER, WERE NOT SATISFIED.  PP. 555-556. 

4.  THE MERE PASSAGE OF TIME IS NO BARRIER TO THE DIVESTITURE OF
STOCK ILLEGALLY ACQUIRED.  P. 556. 

5.  THE CASE IS REMANDED TO THE DISTRICT COURT WHICH HAS THE INITIAL
RESPONSIBILITY OF THE DRAFTING OF A DECREE THAT WILL PROVIDE AN
APPROPRIATE AND EFFECTIVE REMEDY.  PP. 556-557. 

327 F.SUPP.  305, REVERSED AND REMANDED. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL ANTITRUST CASE BROUGHT BY THE UNTITED STATES CHARGING
A VIOLATION OF SEC. 7 OF THE CLAYTON ACT, /1/  AS AMENDED, 64 STAT.
1125, 15 U.S.C. 18.  THE MAIN THRUST OF THE CASE INVOLVES THE
ACQUISITION BY GREATER BUFFALO PRESS, INC. (GREATER BUFFALO), OF ALL
THE STOCK OF INTERNATIONAL COLOR PRINTING CO. (INTERNATIONAL).  THE
COMPLAINT, AT THE SECONDARY LEVEL, CHARGED THAT GREATER BUFFALO, HEARST
CORP., THROUGH ITS UNINCORPORATED DIVISION KING FEATURES SYNDICATE
(KING), NEWSPAPER ENTERPRISE ASSOCIATION, INC. NEA), AND OTHERS HAD
CONSPIRED TO RESTRAIN THE SALE TO NEWSPAPERS OF THE PRINTING OF COMIC
SUPPLEMENTS IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT, AS AMENDED, 26
STAT. 209, 15 U.S.C. 1.  IT ALSO CHARGED THAT HEARST AND NEA WERE
VIOLATORS OF CERTAIN TYING ARRANGEMENTS INVOLVING THE LICENSING OF
COMIC FEATURES AND THE SALE OF COMIC SUPPLEMENTS.  /2/ 

BEFORE TRIAL A CONSENT DECREE WAS ENTERED AGAINST HEARST, ENJOINING
KING FROM ENTERING INTO ANY AGREEMENT LIMITING COMPETITION IN THE
PRINTING OF COLOR COMIC SUPPLEMENTS AND BARRING ANY TYING ARRANGEMENT. 

AFTER FULL TRIAL THE DISTRICT COURT DISMISSED THE COMPLAINT.  /3/
THE CASE CAME HERE UNDER SEC. 2 OF THE EXPEDITING ACT, AS AMENDED, 32
STAT. 823, 15 U.S.C. 29.  WE NOTED PROBABLY JURISDICTION, 400 U.S.
990.  WE REVERSE THE JUDGMENT BELOW. 

THE CASE INVOLVES THE COMIC SUPPLEMENT BUSINESS USED WEEKENDS BY
MOST NEWSPAPERS.  SOME PAPERS PRINT THEIR OWN COMIC SUPPLEMENTS' OTHERS
PURCHASE THEM. 

GREATER BUFFALO PRINTS COLOR SUPPLEMENTS FOR NEWSPAPERS AND SELLS
THEM. 

INTERNATIONAL PRINTS COLOR COMIC SUPPLEMENTS FOR KING ONLY. 

MOST COLOR COMIC SUPPLEMENTS ARE PRINTED BY COMPANIES LIKE GREATER
BUFFALO AND SOLD TO NEWSPAPERS.  BUT INDIVIDUAL NEWSPAPERS CONTRACT FOR
THE PURCHASE OF COMIC FEATURES AND IT IS THOSE COMICS THAT GREATER
BUFFALO PRINTS FOR THE PARTICULAR PAPERS. 

THE MOST POPULAR COMIC FEATURES USED BY MAJOR METROPOLITAN PAPERS
ARE CONTROLLED BY KING. 

GREATER BUFFALO HAS NO CONTROL OVER THE OWNERSHIP OF FEATURES AND
THEREFORE DOES NOT LICENSE THEM.  AS NOTED, HOWEVER, KING IS A
LICENSOR; AND MOREOVER, IT PRINTS "READY-PRINT" SUPPLEMENTS WHICH ARE
PREPRINTED AND SUPPLIED TO MANY NEWSPAPERS ONLY WITH MASTHEAD CHANGE. 

THE DISTRICT COURT DECLARED THAT THE ACQUISITION OF INTERNATIONAL BY
GREATER BUFFALO HAS NOT, AND WILL NOT, RESULT IN A SUBSTANTIAL
LESSENING OF COMPETITION IN THE COLOR COMIC SUPPLEMENT INDUSTRY, AND
THEREFORE DID NOT CONSTITUTE A VIOLATION OF SEC. 7 OF THE CLAYTON ACT. 

THE BASIC ERROR OF THE DISTRICT COURT, IN OUR VIEW, WAS IN ITS
FINDING THAT THE SIGNIFICANT LINES OF COMMERCE INVOLVED IN THIS ACTION
SHOULD BE DIVIDED INTO "TWO DISTINCT AND SEPARATE CATEGORIES:  (1) THE
PRINTING OF COLOR COMIC SUPPLEMENTS FOR NEWSPAPERS WHICH DO NOT PRINT
THEIR OWN, AND (2) THE PRINTING OF COLOR COMIC SUPPLEMENTS FOR
SYNDICATES ENGAGED IN THE SALE OF COPYRIGHTED COMIC FEATURES TO
NEWSPAPERS.  THESE ARE THE LINES OF COMMERCE-- TO TREAT THEM TOGETHER
AS ONE LINE OF COMMERCE, I.E., THE PRINTING AND SALE OF COLOR COMIC
SUPPLEMENTS, WOULD BE TO IGNORE THE TREMENDOUS LEVERAGE OF THE
SYNDICATES WHICH CONTROL THE COPYRIGHTED FEATURES." 

AS WE READ THE RECORD, THE PRINTING OF COLOR COMIC SUPPLEMENTS AND
THEIR SALE ARE COMPONENT PARTS OF THE COLOR COMIC SUPPLEMENT PRINTING
BUSINESS.  ONE FIRM OR COMPANY MAY BOTH PRINT AND SELL; ANOTHER MAY
PRINT YET SELL THROUGH A THIRD ORGANIZATION, AS DOES INTERNATIONAL
THROUGH KING.  THE "AREA OF EFFECTIVE COMPETITION," STANDARD OIL CO. V.
UNITED STATES, 337 U.S. 293, 299-300 N. 5, COMPRISES THE BUSINESS OF
GREATER BUFFALO, INTERNATIONAL, AND KING.  THERE MAY BE SUBMARKETS
WITHIN THIS BROAD MARKET FOR ANTITRUST PURPOSES (BROWN SHOE CO. V.
UNITED STATES, 370 U.S. 294, 325), BUT, AS WE SAID IN UNITED STATES V.
PHILLIPSBURG NATIONAL BANK, 399 U.S. 350, 360, "SUBMARKETS ARE NOT A
BASIS FOR THE DISREGARD OF A BROADER LINE OF COMMERCE THAT HAS ECONOMIC
SIGNIFICANCE." 

THE DISTRICT COURT, PROCEEDING FROM ITS PREMISE AS TO THE RELEVANT
MARKET, ANALYZED THE EFFECTS ON THE COMPETITION BETWEEN GREATER BUFFALO
AND INTERNATIONAL RESULTING FROM THE PURCHASE OF THE STOCK OF THE
LATTER.  THE TRUE IMPORT WOULD INCLUDE NOT ONLY THAT BUT ALSO THE
EFFECT ON COMPETITION OF THE ALLIANCE WITH KING, THROUGH THE
ACQUISITION OF KING'S CLIENT, INTERNATIONAL.  THE THREE OF THEM WERE
ENGAGED IN THE SINGLE LINE OF COMMERCE CONSISTING OF THE PRINTING AND
DISTRIBUTION OF COLOR COMIC SUPPLEMENTS.  THE PRINTING OF COLOR COMICS
IS THE SAME NO MATTER FOR WHOM IT IS DONE OR THROUGH WHOM THEY ARE
DISTRIBUTED.  THE COMBINATION OF THOSE WHO PRINT AND SELL COMIC
SUPPLEMENTS WITH THOSE WHO SELL COMIC SUPPLEMENTS PRINTED BY OTHERS
FASTENS MORE TIGHTLY THE HOLD OF THE GROUP ON THE SIDE OF SUPPLEMENT
PRINTING BUSINESS.  AS A RESULT OF THE ACQUISITION, KING HAS BECOME
DEPENDENT ON GREATER BUFFALO FOR MOST OF THE PRINTING WHICH IT SELLS IN
COMPETITION WITH GREATER BUFFALO.  GREATER BUFFALO, IT IS SAID, HAD NO
LONG-TERM CONTRACT FOR KING'S BUSINESS FOLLOWING THE ACQUISITION.  YET
IT HAD THE ALMOST CERTAIN RIGHT TO PRINT FOR KING, ITS PRINCIPAL
SELLING COMPETITOR, AND A 10-YEAR CONTRACT WAS ENTERED INTO IN THE
SUMMER AFTER THE ACQUISITION.  THERE IS EVIDENCE THAT GREATER BUFFALO
HAS TAKEN ACCOUNTS FROM KING SINCE THE ACQUISITION.  BUT EXISTING
COMPETITION BETWEEN THEM IS NATURALLY RESTRICTED TO SALES AT A PRICE
HIGHER THAN GREATER BUFFALO CHARGES KING FOR PRINTING; AND IT IS NOT
THAT FULLER COMPETITION THAT COULD EXIST IF KING HAD AN INDEPENDENT
PRINTING SOURCE. 

KING'S EXECUTIVE OFFICER PROPOSED, AFTER THE STOCK ACQUISITION OF
INTERNATIONAL, THAT KING ACQUIRE ITS OWN COLOR SUPPLEMENT PRINTING
CAPACITY. 

"EVEN IF IT COST MONEY TO DO THIS AND DIMINISHED PROFITS, WOULDN'T
THAT BE BETTER THAN THE EVENTUAL LOSS OF MOST, IF NOT ALL, OF OUR
READYPRINT BUSINESS? 

        .          .          .          . 

"THE SYNDICATE WHICH FOR MORE THAN A QUARTER OF A CENTURY HAS BEEN
NUMBER ONE IN THE READYPRINT FIELD IS NOW AT BEST NUMBER TWO, AND QUITE
HELPLESS.  NEWSPAPER HISTORY CLEARLY EMPHASIZES THE DIFFICULTY, IN FACT
HOPELESSNESS OF REGAINING A LOST POSITION.  THERE IS PLENTY OF CURRENT
EVIDENCE TO SUBSTANTIATE THIS. 

"IF KOESSLER (HEAD OF GREATER BUFFALO), BECAUSE OF WHAT HE HAS

  DONE THE PAST FEW YEARS, WERE TO BE ATTACKED, IN MY OPINION HE

  WOULD LOSE, BUT THERE IS THE DANGER, I SUPPOSE, OF OUR BECOMING

  AN ACCESSORY.  HERE IS ANOTHER REASON WHY I THINK THAT IF WE WERE

  IN THE READYPRINT FIELD WITH PLANTS OF OUR OWN IT WOULD RESTORE A

  COMPETITIVE ASPECT AND CERTAINLY THAT WOULDN'T BE DISCOURAGED IN

  WASHINGTON." 

PRIOR TO THE ACQUISITION, KING PUT PRESSURE ON INTERNATIONAL TO
CONSTRUCT A SOUTHERN PLANT TO MEET GREATER BUFFALO'S PROPOSED EXPANSION
THERE.  PRIOR TO THE ACQUISITION KING ALSO INDUCED INTERNATIONAL TO CUT
ITS PRICE TO MEET COMPETITION AND ACTUALLY TRANSFERRED A FEW CONTRACTS
FROM INTERNATIONAL TO GREATER BUFFALO BECAUSE OF PRICES. 

THOSE PRACTICES CEASED AFTER THE ACQUISITION.  GREATER BUFFALO
ACQUIRED CONTROL OF ABOUT 75% OF INDEPENDENT COLOR COMIC SUPPLEMENT
PRINTING, LEAVING KING NO RELIABLE ALTERNATIVE SUPPLY.  GREATER BUFFALO
AND INTERNATIONAL WHICH HAD BEEN COMPETITORS CEASED TO BE SUCH.  THE
THREAT THAT NEWSPAPER CUSTOMERS WILL DO THEIR OWN PRINTING IS OF COURSE
A FACTOR IN THE COMPETITIVE SITUATION.  BUT, ACCORDING TO THE RECORD,
COLOR COMIC SUPPLEMENT PRINTING REQUIRES EXACTING MECHANICAL TECHNIQUES
PERFORMED BY SPECIALLY TRIANED PERSONNEL, AND INDEPENDENT PRINTERS
SPECIALIZING IN SUPPLEMENT PRINTING AND HANDLING A HIGH VOLUME OF
BUSINESS CAN PRODUCE A HIGH QUALITY PRODUCT MORE ECONOMICALLY THAN MOST
NEWSPAPERS. 

THE TEST OF SEC. 7 IS WHETHER THE EFFECT OF AN ACQUISITION "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION."  THE CONCENTRATION OF 75% OF THE
INDEPENDENT COLOR COMIC SUPPLEMENT PRITING BUSINESS IN ONE FIRM POINTS
FIRMLY TO THE CONCLUSION THAT THE DIFFICULTIES OF NEW ENTRANTS BECOMING
REAL COMPETITORS OF GREATER BUFFALO ARE GREATLY INCREASED. 

WE ALSO DISAGREE WITH THE DISTRICT COURT THAT THE ACQUISITION OF
INTERNATIONAL BY GREATER BUFFALO WAS WITHIN THE "FAILING COMPANY"
EXCEPTION TO SEC. 7 OF THE CLAYTON ACT. 

THAT TEST IS MET ONLY IF TWO REQUIREMENTS ARE SATISFIED:  (1) THAT
THE RESOURCES OF INTERNATIONAL WERE "SO DEPLETED AND THE PROSPECT OF
REHABILITATION SO REMOTE THAT IT FACED THE GRAVE PROBABILITY OF A
BUSINESS FAILURE . . . ," INTERNATIONAL SHOE CO. V. FEDERAL TRADE
COMM'N, 280 U.S. 291, 302, AND (2) THAT THERE WAS NO OTHER PROSPECTIVE
PURCHASER FOR IT.  CITIZEN PUBLISHING CO. V. UNITED STATES, 394 U.S.
131, 138. 

IT IS TRUE THAT ITS OWNERS WISHED TO SELL RATHER THAN RAISE THE
CAPITAL NEEDED FOR MODERNIZATION AND EXPANSION, AND THAT KING, ITS SOLE
CUSTOMER, WAS THREATENING TO PLACE SOME OF ITS BUSINESS ELSEWHERE.  YET
KING HAD NOT THREATENED TO INVOKE, NOR HAD IT INVOKED, THE SIX-MONTH
CANCELLATION PROVISION IN THE CONTRACT.  ITS EXPANSION PLANS WERE BEING
ACTIVELY PURSUED AND IT CONTINUED TO PAY DIVIDENDS TO ITS OWNERS. 
INDEED IN THE YEAR OF THE SALE IT HAD SHOWN A SUBSTANTIAL INCREASE IN
PROFITS. 

MOREOVER, ONLY KING AND GREATER BUFFALO WERE CONSIDERED AS
PROSPECTIVE PURCHASERS; THE NUMEROUS OTHER SMALL COLOR COMIC SUPPLEMENT
PRINTERS WERE NEVER EVEN APPROACHED. 

SINCE THE DISTRICT COURT FOUND NO VIOLATION OF SEC. 7, IT NATURALLY
DID NOT REACH THE QUESTION OF REMEDY THOUGH IT SAID THAT IF THERE WERE
A VIOLATION, IT WOULD NOT WARRANT "A COURT'S EXERCISING ITS DISCRETION
TO ORDER A DIVESTITURE FIFTEEN YEARS AFTER THE OCCURRENCE OF THE
ALLEGED ILLEGAL CONDUCT."  THAT IS NOT THE LAW; THE PASSAGE OF TIME PER
SE IS NO BARRIER TO DIVESTITURE OF STOCK ILLEGALLY ACQUIRED.  UNITED
STATES V. DU PONT, 353 U.S. 586, 590; 366 U.S. 316.  DIVESTITURE
PERFORMS SEVERAL FUNCTIONS, THE FOREMOST BEING THE LIQUIDATION OF THE
ILLEGALLY ACQUIRED MARKET POWER.  SCHINE CHAIN THEATRES V. UNITED
STATES, 334 U.S. 110, 127-129. 

WE DO NOT, HOWEVER, REACH THE QUESTION OF DIVESTITURE.  A MAJORITY
OF THE COURT IS OF THE VIEW THAT THE NATURE OF THE DECREE TO BE
FASHIONED SHOULD BE INITIALLY CONSIDERED BY THE DISTRICT COURT.  IN
THAT CONNECTION TWO ADDITIONAL QUESTIONS WILL NEED TO BE PASSED ON BY
THE DISTRICT COURT. 

FIRST IS THE QUESTION OF THE CONSENT DECREE ENTERED WITH HEARST.  AS
TO IT THE DISTRICT COURT SAID:  "KING FEATURES MAY CONTINUE TO ENGAGE
IN THE PRACTICE OF COMBINING THE SALE OF FEATURES AND PRINTING UNTIL
THE COURT SHALL DETERMINE THE ANTITRUST ISSUE AS TO GREATER BUFFALO. 
THE DECREE ALSO PROVIDED THAT HEARST SHALL OBEY THE ANTITRUST LAWS
DURING THE PENDENCY OF THE ACTION." 

WE DO NOT HAVE ENOUGH INFORMATION ABOUT THE CONSENT DECREE AND ITS
OPERATION AND THE RELATED FACTS TO KNOW HOW IT SHOULD NOW BE INTEGRATED
INTO A DECREE. 

SECOND.  IN THE FIFTIES GREATER BUFFALO ERECTED A PRINTING PLAN AT
LUFKIN, TEXAS, TO IMPROVE ITS MARKET IN THAT AREA BY SAVING
TRANSPORTATION COSTS.  THERE IS SOME EVIDENCE THAT IN 1950 GREATER
BUFFALO MADE A MORAL COMMITMENT TO CERTAIN NEWSPAPERS TO BUILD A PLANT
IN THE DEEP SOUTH.  A PLANT WAS CONSTRUCTED AT SYLACAUGA, ALABAMA,
AFTER THE ACQUISITION OF INTERNATIONAL. 

THERE ARE CROSS-CURRENTS IN THE RECORD WHICH SUGGEST THAT THE
SYLACAUGA PLANT WAS THE PRODUCT OF INTERNATIONAL'S WISHES, RATHER THAN
GREATER BUFFALO'S, AND THAT THE PRIMARY MOTIVE FOR GREATER BUFFALO'S
ACQUISITION OF INTERNATIONAL STOCK WAS TO ELIMINATE INTERNATIONAL'S
PLANNED EXPANSION IN THE SOURTH AS A COMPETITIVE THREAT. 

THE STATUS OF THE SYLACAUGA PLANT IS A MATTER TO BE CONSIDERED BY
THE DISTRICT COURT UNDER THE CONTROLLING PRECEDENTS.  SEE, E.G., UNITED
STATES V. ALUMINUM CO. OF AMERICA, 247 F.SUPP.  308, AFF'D, 382 U.S.
12. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR THE DRAFTING OF
A DECREE AND THE MAKING OF SUCH ADDITIONAL FINDINGS BOTH AS RESPECTS
THE CONSENT DECREE AND THE SYLACAUGA PLANT AS MAY BE APPROPRIATE OR
NECESSARY FOR AN EFFECTIVE REMEDY. 

              REVERSED AND REMANDED. 

/1/  SECTION 7 PROVIDED IN PART: 

"THAT NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

/2/  A MONOPOLIZATION CHARGE AGAINST GREATER BUFFALO WAS ELIMINATED
BY AN AMENDED COMPLAINT. 

/3/  THE UNITED STATES DID NOT APPEAL FROM THE DISMISSAL AGAINST
NEA. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL MCLAREN, SAMUEL HUNTINGTON, LEE A. RAU, AND
ELLIOTT H. FELDMAN. 

FRANK G. RAICHLE ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES. 
..END :











UNITED STATES V. INTERNATIONAL MIN'LS CORP., 402 U.S. 558 


       UNITED STATES V. INTERNATIONAL MINERALS & CHEMICAL CORP.

        CERTIFIED APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

           THE SOUTHERN DISTRICT OF OHIO

        NO. 557.  ARGUED APRIL 26, 1971-- DECIDED JUNE 1, 1971 


APPELLEE WAS CHARGED BY INFORMATION WITH SHIPPING SULFURIC AND
HYDROFLUOSILICIC ACIDS IN INTERSTATE COMMERCE AND THAT IT "DID
KNOWINGLY FAIL TO SHOW ON THE SHIPPING PAPERS THE REQUIRED
CLASSIFICATION OF SAID PROPERTY, TO WIT, CORROSIVE LIQUID, IN VIOLATION
OF 49 C.F.R. 173.437," ISSUED PURSUANT TO 18 U.S.C. 834(A).  SECTION
834(F) PROVIDES THAT WHOEVER "KNOWINGLY VIOLATES ANY SUCH REGULATION"
SHALL BE FINED AND IMPRISONED.  THE DISTRICT COURT DISMISSED THE
INFORMATION, HOLDING THAT IT DID NOT CHARGE A "KNOWING VIOLATION" OF
THE REGULATION.  HELD:  THE STATUTE DOES NOT SIGNAL AN EXCEPTION TO THE
GENERAL RULE THAT IGNORANCE OF THE LAW IS NO EXCUSE.  THE WORD
"KNOWINGLY" IN THE STATUTE PERTAINS TO KNOWLEDGE OF THE FACTS, AND
WHERE, AS HERE, DANGEROUS PRODUCTS ARE INVOLVED, THE PROBABILITY OF
REGULATION IS SO GREAT THAT ANYONE WHO IS AWARE THAT HE IS IN
POSSESSION OF OR DEALING WITH THEM MUST BE PRESUMED TO BE AWARE OF THE
REGULATION.  PP. 560-565. 

REVERSED. 

DOUGLAS, J., DELIVERD THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  STEWART,
J., FILED A DISSENTING OPINION, IN WHICH HARLAN AND BRENNAN, JJ.,
JOINED, POST, P. 565. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE INFORMATION CHARGED THAT APPELLEE SHIPPED SULFURIC ACID AND
HYDROFLUOSILICIC ACID IN INTERSTATE COMMERCE AND "DID KNOWINGLY FAIL TO
SHOW ON THE SHIPPING PAPERS THE REQUIRED CLASSIFICATION OF SAID
PROPERTY, TO WIT, CORROSIVE LIQUID, IN VIOLATION OF 49 C.F.R.
173.427." 

TITLE 18 U.S.C. 834(A) GIVES THE INTERSTATE COMMERCE COMMISSION
POWER TO "FORMULATE REGULATIONS FOR THE SAFE TRANSPORTATION" OF
"CORROSIVE LIQUIDS" AND 18 U.S.C. 834(F) STATES THAT WHOEVER "KNOWINGLY
VIOLATES ANY SUCH REGULATION" SHALL BE FINED OR IMPRISONED. 

PURSUANT TO THE POWER GRANTED BY SEC. 834(A) THE REGULATORY AGENCY
/1/  PROMULGATED THE REGULATION ALREADY CITED WHICH READS IN PART: 

     "EACH SHIPPER OFFERING FOR TRANSPORTATION ANY HAZARDOUS

  MATERIAL SUBJECT TO THE REGULATIONS IN THIS CHAPTER, SHALL

  DESCRIBE THAT ARTICLE ON THE SHIPPING PAPER BY THE SHIPPING NAME

  PRESCRIBED IN SEC. 172.5 OF THIS CHAPTER AND BY THE

CLASSIFICATION PRESCRIBED IN SEC. 172.4 OF THIS CHAPTER, AND MAY

  ADD A FURTHER DESCRIPTION NOT INCONSISTENT THEREWITH. 

  ABBREVIATIONS MUST NOT BE USED."  49 CFR 173.427. 

THE DISTRICT COURT, RELYING PRIMARILY ON BOYCE MOTOR LINES, INC. V.
UNITED STATES, 342 U.S. 337, RULED THAT THE INFORMATION DID NOT CHARGE
A "KNOWING VIOLATION" OF THE REGULATION AND ACCORDINGLY DISMISSED THE
INFORMATION. 

THE UNITED STATES FILED A NOTICE OF APPEAL TO THE COURT OF APPEALS,
18 U.S.C. 3731, AND IN RELIANCE ON THAT SECTION LATER MOVED TO CERTIFY
THE CASE TO THIS COURT WHICH THE COURT OF APPEALS DID; AND WE NOTED
PROBABLY JURISDICTION, 400 U.S. 990. 

HERE AS IN UNITED STATES V. FREED, 401 U.S. 601, WHICH DEALT WITH
THE POSSESSION OF HAND GRENADES, STRICT OR ABSOLUTE LIABILITY IS NOT
IMPOSED; KNOWLEDGE OF THE SHIPMENT OF THE DANGEROUS MATERIALS IS
REQUIRED.  THE SOLE AND NARROW QUESTION IS WHETHER "KNOWLEDGE" OF THE
REGULATION IS ALSO REQUIRED.  IT IS IN THAT NARROW ZONE THAT THE ISSUE
OF "MENS REA" IS RAISED; AND APPELLEE BEARS DOWN HARD ON THE PROVISION
IN 18 U.S.C. 834(F) THAT WHOEVER "KNOWINGLY VIOLATES ANY SUCH
REGULATION" SHALL BE FINED, ETC. 

BOYCE MOTOR LINES, INC. V. UNITED STATES, SUPRA, ON WHICH THE
DISTRICT COURT RELIED, IS NOT DISPOSITIVE OF THE ISSUE.  IT INVOLVED A
REGULATION GOVERNING TRANSPORTING EXPLOSIVES, INFLAMMABLE LIQUIDS, AND
THE LIKE AND REQUIRED DRIVERS TO "AVOID, SO FAR AS PRACTICABLE, AND,
WHERE FEASIBLE, BY PREARRANGEMENT OF ROUTES, DRIVING INTO OR THROUGH
CONGESTED THOROUGHFARES, PLACES WHERE CROWDS ARE ASSEMBLED, STREET CAR
TRACKS, TUNNELS, VIADUCTS, AND DANGEROUS CROSSINGS."  THE STATUTE
PUNISHED WHOEVER "KNOWINGLY" VIOLATED THE REGULATION.  ID., AT 339. 
THE ISSUE OF "MENS REA" WAS NOT RAISED BELOW, THE SOLE QUESTION TURNING
ON WHETHER THE STANDARD OF GUILT WAS UNCONSTITUTIONALLY VAGUE.  ID., AT
340.  IN HOLDING THE STATUTE WAS NOT VOID FOR VAGUENESS WE SAID: 

     "THE STATUTE PUNISHES ONLY THOSE WHO KNOWINGLY VIOLATE THE

  REGULATION.  THIS REQUIREMENT OF THE PRESENCE OF CULPABLE INTENT

  AS A NECESSARY ELEMENT OF THE OFFENSE DOES MUCH TO DESTROY ANY

  FORCE IN THE ARGUMENT THAT APPLICATION OF THE REGULATION WOULD BE

  SO UNFAIR THAT IT MUST BE HELD INVALID.  THAT IS EVIDENT FROM A

  CONSIDERATION OF THE EFFECT OF THE REQUIREMENT IN THIS CASE.  TO

  SUSTAIN A CONVICTION, THE GOVERNMENT NOT ONLY MUST PROVE THAT

  PETITIONER COULD HAVE TAKEN ANOTHER ROUTE WHICH WAS BOTH

  COMMERCIALLY PRACTICABLE AND APPRECIABLY SAFER (IN ITS AVOIDANCE

  OF CROWDED THOROUGHFARES, ETC.) THAN THE ONE IT DID FOLLOW.  IT

MUST ALSO BE SHOWN THAT PETITIONER KNEW THAT THERE WAS SUCH A

  PRACTICABLE, SAFER ROUTE THROUGH THE TUNNEL, OR THAT PETITIONER

  WILLFULLY NEGLECTED TO EXERCISE ITS DUTY UNDER THE REGULATION TO

  INQUIRE INTO THE AVAILABILITY OF SUCH AN ALTERNATIVE ROUTE. 

     "IN AN EFFORT TO GIVE POINT TO ITS ARGUMENT, PETITIONER
ASSERTS

  THAT THERE WAS NO PRACTICABLE ROUTE ITS TRUCKS MIGHT HAVE

  FOLLOWED WHICH DID NOT PASS THROUGH PLACES THEY WERE REQUIRED TO

  AVOID.  IF IT IS TRUE THAT IN THE CONGESTION SURROUNDING THE

  LOWER HUDSON THERE WAS NO PRACTICABLE WAY OF CROSSING THE RIVER

WHICH WOULD HAVE AVOIDED SUCH POINTS OF DANGER TO A SUBSTANTIALLY

  GREATER EXTENT THAN THE ROUTE TAKEN, THEN PETITIONER HAS NOT

  VIOLATED THE REGULATION.  BUT THAT IS PLAINLY A MATTER FOR PROOF

  AT THE TRIAL.  WE ARE NOT SO CONVERSANT WITH ALL THE ROUTES IN

  THAT AREA THAT WE MAY, WITH NO FACTS IN THE RECORD BEFORE US,

  ASSUME THE ALLEGATIONS OF THE INDICTMENT TO BE FALSE.  WE WILL

  NOT THUS DISTORT THE JUDICIAL NOTICE CONCEPT TO STRIKE DOWN A

  REGULATION ADOPTED ONLY AFTER MUCH CONSULTATION WITH THOSE

  AFFECTED AND PENALIZING ONLY THOSE WHO KNOWINGLY VIOLATE ITS

  PROHIBITION."  ID., AT 342-343. 

THE "MENS REA" THAT EMERGED IN THE FOREGOING DISCUSSION WAS NOT
KNOWLEDGE OF THE REGULATION BUT KNOWLEDGE OF THE SAFER ROUTES AND THOSE
THAT WERE LESS SAFE WITHIN THE MEANING OF THE REGULATION.  MR. JUSTICE
JACKSON, WRITING IN DISSENT FOR HIMSELF, MR. JUSTICE BLACK, AND MR.
JUSTICE FRANKFURTER, CORRECTLY SAID: 

"I DO NOT SUPPOSE THE COURT INTENDS TO SUGGEST THAT IF PETITIONER
KNEW NOTHING OF THE EXISTENCE OF SUCH A REGULATION ITS IGNORANCE WOULD
CONSTITUTE A DEFENSE."  342 U.S.,AT 345. 

THERE IS NO ISSUE IN THE PRESENT CASE OF THE PROPRIETY OF THE
DELEGATION OF THE POWER TO ESTABLISH REGULATIONS AND OF THE VALIDITY OF
THE REGULATION AT ISSUE.  WE THEREFORE SEE NO REASON WHY THE WORD
"REGULATIONS" SHOULD NOT BE CONSTRUED AS A SHORTHAND DESIGNATION FOR
SPECIFIC ACTS OR OMISSIONS WHICH VIOLATE THE ACT.  THE ACT, SO VIEWED,
DOES NOT SIGNAL AN EXCEPTION TO THE RULE THAT IGNORANCE OF THE LAW IS
NO EXCUSE AND IS WHOLLY CONSISTENT WITH THE LEGISLATIVE HISTORY. 

THE FAILURE TO CHANGE THE LANGUAGE IN SEC. 834 IN 1960 SHOULD NOT
LEAD TO A CONTRARY CONCLUSION.  THE SENATE APPROVED AN AMENDMENT
DELETING "KNOWINGLY" AND SUBSTITUTING THEREFOR THE LANGUAGE "BEING
AWARE THAT THE INTERSTATE COMMERCE COMMISSION HAS FORMULATED
REGULATIONS FOR THE SAFE TRANSPORTATION OF EXPLOSIVES AND OTHER
DANGEROUS ARTICLES."  /2/  BUT THE HOUSE REFUSED TO AGREE.  AS THE
HOUSE COMMITTEE STATED, ITS VERSION WOULD "RETAIN THE PRESENT LAW BY
PROVIDING THAT A PERSON MUST 'KNOWINGLY' VIOLATE THE REGULATIONS." 
/3/ 

THE HOUSE COMMITTEE NOTED THERE WAS A "JUDICIAL PRONOUNCEMENT AS TO
THE STANDARDS OF CONDUCT THAT MAKE A VIOLATION A 'KNOWING' VIOLATION." 
/4/  IN ST. JOHNSBURY TRUCKING CO. V. UNITED STATES, 220 F.2D 393, 397,
CHIEF JUDGE MAGRUDER HAD CONCLUDED THAT KNOWLEDGE OF THE REGULATIONS
WAS NECESSARY.  BUT WHETHER THE HOUSE COMMITTEE WAS REFERRING TO BOYCE
MOTOR LINES OR THE OPINION OF CHIEF JUDGE MAGRUDER IS NOT CLEAR SINCE
BOTH VIEWS OF THE SECTION WERE BEFORE CONGRESS.  /5/  IT IS CLEAR THAT
STRICT LIABILITY WAS NOT INTENDED.  THE SENATE COMMITTEE FELT IT WOULD
BE TOO STRINGENT AND THUS REJECTED THE POSITION OF THE INTERSTATE
COMMERCE COMMISSION.  /6/  BUT DESPITE PROTESTATIONS OF AVOIDING STRICT
LIABILITY THE SENATE VERSION WAS VERY LIKELY TO RESULT IN STRICT
LIABILITY BECAUSE KNOWLEDGE OF THE FACTS WOULD HAVE BEEN UNNECESSARY
AND ANYONE INVOLVED IN THE BUSINESS OF SHIPPING DANGEROUS MATERIALS
WOULD VERY LIKELY KNOW OF THE REGULATIONS INVOLVED.  THUS IN REJECTING
THE SENATE VERSION THE HOUSE WAS REJECTING STRICT LIABILITY.  /7/  BUT
IT IS TOO MUCH TO CONCLUDE THAT IN REJECTING STRICT LIABILITY THE HOUSE
WAS ALSO CARVING OUT AN EXCEPTION TO THE GENERAL RULE THAT IGNORANCE OF
THE LAW IS NO EXCUSE. 

THE PRINCIPLE THAT IGNORANCE OF THE LAW IS NO DEFENSE APPLIES
WHETHER THE LAW BE A STATUTE OR A DULY PROMULGATED AND PUBLISHED
REGULATION.  IN THE CONTEXT OF THESE PROPOSED 1960 AMENDMENTS WE
DECLINE TO ATTRIBUTE TO CONGRESS THE INACCURATE VIEW THAT THAT ACT
REQUIRES PROOF OF KNOWLEDGE OF THE LAW, AS WELL AS THE FACTS, AND THAT
IT INTENDED TO ENDORSE THAT INTERPRETATION BY RETAINING THE WORD
"KNOWINGLY."  WE CONCLUDE THAT THE MEAGER LEGISLATIVE HISTORY OF THE
1960 AMENDMENTS MAKES UNWARRANTED THE CONCLUSION THAT CONGRESS
ABANDONED THE GENERAL RULE AND REQUIRED KNOWLEDGE OF BOTH THE FACTS AND
THE PERTINENT LAW BEFORE A CRIMINAL CONVICTION COULD BE SUSTAINED UNDER
THIS ACT. 

SO FAR AS POSSESSION, SAY, OF SULFURIC ACID IS CONCERNED THE
REQUIREMENT OF "MENS REA" HAS BEEN MADE A REQUIREMENT OF THEACT AS
EVIDENCED BY THE USE OF THE WORD "KNOWINGLY."  A PERSON THINKING IN
GOOD FAITH THAT HE WAS SHIPPING DISTILLED WATER WHEN IN FACT HE WAS
SHIPPING SOME DANGEROUS ACID WOULD NOT BE COVERED.  AS STATED IN
MORISSETTE V. UNITED STATES, 342 U.S. 246, 250: 

     "THE CONTENTION THAT AN INJURY CAN AMOUNT TO A CRIME ONLY WHEN

  INFLICTED BY INTENTION IS NO PROVINCIAL OR TRANSIENT NOTION.  IT

  IS AS UNIVERSAL AND PERSISTENT IN MATURE SYSTEMS OF LAW AS BELIEF

  IN FREEDOM OF THE HUMAN WILL AND A CONSEQUENT ABILITY AND DUTY OF

  THE NORMAL INDIVIDUAL TO CHOOSE BETWEEN GOOD AND EVIL." 

THERE IS LEEWAY FOR THE EXERCISE OF CONGRESSIONAL DISCRETION IN
APPLYING THE REACH OF "MENS REA."  UNITED STATES V. BALINT, 258 U.S.
250.  UNITED STATES V. MURDOCK, 290 U.S. 389, CLOSELY CONFINED THE WORD
"WILLFULLY" IN THE INCOME TAX LAW TO INCLUDE A PURPOSE TO BRING ABOUT
THE FORBIDDEN RESULT: 

     "HE WHOSE CONDUCT IS DEFINED AS CRIMINAL IS ONE WHO
'WILLFULLY'

  FAILS TO PAY THE TAX, TO MAKE A RETURN, TO KEEP THE REQUIRED

  RECORDS, OR TO SUPPLY THE NEEDED INFORMATION.  CONGRESS DID NOT

  INTEND THAT A PERSON, BY REASON OF A BONA FIDE MISUNDERSTANDING

  AS TO HIS LIABILITY FOR THE TAX, AS TO HIS DUTY TO MAKE A RETURN,

OR AS TO THE ADEQUACY OF THE RECORDS HE MAINTAINED, SHOULD BECOME

  A CRIMINAL BY HIS MERE FAILURE TO MEASURE UP TO THE PRESCRIBED

  STANDARD OF CONDUCT.  AND THE REQUIREMENT THAT THE OMISSION IN

  THESE INSTANCES, MUST BE WILLFUL, TO BE CRIMINAL, IS PERSUASIVE

  THAT THE SAME ELEMENT IS ESSENTIAL TO THE OFFENSE OF FAILING TO

  SUPPLY INFORMATION."  ID., AT 396. 

IN BALINT THE COURT WAS DEALING WITH DRUGS, IN FREED WITH HAND
GRENADES, IN THIS CASE WITH SULFURIC AND OTHER DANGEROUS ACIDS. 
PENCILS, DENTAL FLOSS, PAPER CLIPS MAY ALSO BE REGULATED.  BUT THEY MAY
BE THE TYPE OF PRODUCTS WHICH MIGHT RAISE SUBSTANTIAL DUE PROCESS
QUESTIONS IF CONGRESS DID NOT REQUIRE, AS IN MURDOCK, "MENS REA" AS TO
EACH INGREDIENT OF THE OFFENSE.  BUT WHERE, AS HERE AND AS IN BALINT
AND FREED, DANGEROUS OR DELETERIOUS DEVICES OR PRODUCTS OR OBNOXIOUS
WASTE MATERIALS ARE INVOLVED, THE PROBABILITY OF REGULATION IS SO GREAT
THAT ANYONE WHO IS AWARE THAT HE IS IN POSSESSION OF THEM OR DEALING
WITH THEM MUST BE PRESUMED TO BE AWARE OF THE REGULATION. 

              REVERSED. 

/1/  THE REGULATORY AUTHORITY ORIGINALLY GRANTED THE INTERSTATE
COMMERCE COMMISSION WAS TRANSFERRED TO THE DEPARTMENT OF TRANSPORTATION
BY 80 STATE.  939, 49 U.S.C. 1655(E) (1964 ED., SUPP. V). 

/2/  SEE H.R. REP. NO. 1975, 86TH CONG., 2D SESS., 10-11. 

/3/  ID., AT 2. 

/4/  IBID. 

/5/  SEE THE HEW STAFF MEMORANDUM, ID., AT 16-19. 

/6/  S. REP. NO. 901, 86TH CONG., 1ST SESS., 3. 

/7/  THE SENATE LANGUAGE MIGHT "WELL CREATE AN ALMOST ABSOLUTE
LIABILITY FOR VIOLATION."  H.R. REP. NO. 1975, SUPRA, AT 2. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

THIS CASE STIRS LARGE QUESTIONS-- QUESTIONS THAT GO TO THE MORAL
FOUNDATIONS OF THE CRIMINAL LAW.  WHETHER POSTULATED AS A PROBLEM OF
"MENS REA," OF "WILLFULNESS," OF "CRIMINAL RESPONSIBILITY," OR OF
"SCIENTER," THE INFLICTION OF CRIMINAL PUNISHMENT UPON THE UNAWARE HAS
LONG TROUBLED THE FAIR ADMINISTRATION OF JUSTICE.  SEE, E.G.,
MORISSETTE V. UNITED STATES, 342 U.S. 246; LAMBERT V. CALIFORNIA, 355
U.S. 225; SCALES V. UNITED STATES, 367 U.S. 203.  CF. DURHAM V. UNITED
STATES, 214 F.2D 862.  BUT THERE IS NO OCCASION HERE FOR INVOLVEMENT
WITH THIS ROOT PROBLEM OF CRIMINAL JURISPRUDENCE, FOR IT IS EVIDENT TO
ME THAT CONGRESS MADE PUNISHABLE ONLY KNOWING VIOLATIONS OF THE
REGULATION IN QUESTION.  THAT IS WHAT THE LAW QUITE CLEARLY SAYS, WHAT
THE FEDERAL COURTS HAVE HELD, AND WHAT THE LEGISLATIVE HISTORY
CONFIRMS. 

THE STATUTORY LANGUAGE IS HARDLY COMPLEX.  SECTION 834(A) OF TITLE
18, U.S.C., GIVES THE REGULATORY AGENCY POWER TO "FORMULATE REGULATIONS
FOR THE SAFE TRANSPORTATION" OF, AMONG OTHER THINGS, "CORROSIVE
LIQUIDS."  SECTION 834(F) PROVIDES THAT "(WHOEVER KNOWINGLY VIOLATES
ANY SUCH REGULATION SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED
NOT MORE THAN ONE YEAR, OR BOTH."  IN DISMISSING THE INFORMATION IN
THIS CASE BECAUSE IT DID NOT CHARGE THE APPELLEE SHIPPER WITH KNOWING
VIOLATION OF THE APPLICABLE LABELING REGULATION, DISTRICT JUDGE PORTER
DID NO MORE THAN GIVE EFFECT TO THE ORDINARY MEANING OF THE ENGLISH
LANGUAGE. 

IT IS TRUE, AS THE COURT TODAY POINTS OUT, THAT THE ISSUE NOW BEFORE
US WAS NOT DIRECTLY INVOLVED IN BOYCE MOTOR LINES, INC. V. UNITED
STATES, 342 U.S. 337, WHICH DEALT WITH A CLAIM THAT THE STATUTE IS
UNCONSTITUTIONALLY VAGUE.  BUT IN HOLDING THE STATUTE VALID, THE COURT
BOTTOMED ITS REASONING UPON THE PROPOSITION THAT "THE PRESENCE OF
CULPABLE INTENT (IS) A NECESSARY ELEMENT OF THE OFFENSE."  ID., AT
342.  OTHER FEDERAL COURTS, FACED WITH THE PRECISE ISSUE HERE
PRESENTED, HAVE HELD THAT THE STATUTE MEANS EXACTLY WHAT IT SAYS-- THAT
THE WORDS "KNOWINGLY VIOLATES ANY SUCH REGULATION" MEAN NO MORE AND NO
LESS THAN "KNOWINGLY VIOLATES ANY SUCH REGULATION."  ST. JOHNSBURY
TRUCKING CO. V. UNITED STATES, 220 F.2D 393 (CA1 1955); UNITED STATES
V. CHICAGO EXPRESS, 235 F.2D 785 (CA7 1056).  CHIEF JUDGE MAGRUDER
FILED A CONCURRING OPINION IN THE ST. JOHNSBURY CASE, AND HE PUT THE
MATTER THUS:    "IF IT BE THOUGHT THAT THE INDICATED REQUIREMENT OF
PROOF WILL SERIOUSLY HAMPER EFFECTIVE ENFORCEMENT OF THE INTERSTATE
COMMERCE COMMISSION REGULATIONS, THE ANSWER IS THAT CONGRESS IS AT
LIBERTY TO FIX THAT UP BY STRIKING OUT . . . THE PRESCRIBED ELEMENT OF
MENS REA-- 'KNOWINGLY'-- AS APPLIED TO VIOLATION OF REGULATIONS OF THE
SORT HERE INVOLVED.  . . . 

     "IF A STATUTE PROVIDES THAT IT SHALL BE AN OFFENSE 'KNOWINGLY'

TO SELL ADULTERATED MILK, THE OFFENSE IS COMPLETE IF THE

DEFENDANT SELLS WHAT HE KNOWS TO BE ADULTERATED MILK, EVEN THOUGH

  HE DOES NOT KNOW OF THE EXISTENCE OF THE CRIMINAL STATUTE, ON THE

  TIME-HONORED PRINCIPLE OF THE CRIMINAL LAW THAT IGNORANCE OF THE

  LAW IS NO EXCUSE.  BUT WHERE A STATUTE PROVIDES, AS DOES 18

  U.S.C. 835, THAT WHOEVER KNOWINGLY VIOLATES A REGULATION OF THE

  INTERSTATE COMMERCE COMMISSION SHALL BE GUILTY OF AN OFFENSE, IT

  WOULD SEEM THAT A PERSON COULD NOT KNOWINGLY VIOLATE A REGULATION

  UNLESS HE KNOWS OF THE TERMS OF THE REGULATION AND KNOWS THAT

 WHAT HE IS DOING IS CONTRARY TO THE REGULATION.  HERE AGAIN THE

  DEFINITION OF THE OFFENSE IS WITHIN THE CONTROL AND DISCRETION OF

  THE LEGISLATURE."  ID., AT 398. 

IN 1960 THESE JUDICIAL DECISIONS WERE BROUGHT TO THE ATTENTION OF
THE APPROPRIATE COMMITTEES OF CONGRESS BY THE INTERSTATE COMMERCE
COMMISSION, WHICH ASKED CONGRESS TO OVERCOME THEIR IMPACT BY AMENDING
THE LAW, EITHER BY SIMPLY DELETING THE WORD "KNOWINGLY" OR,
ALTERNATIVELY, BY SUBSTITUTING THEREFOR THE WORDS "BEING AWARE THAT THE
INTERSTATE COMMERCE COMMISSION HAS FORMULATED REGULATIONS FOR THE SAFE
TRANSPORTATION OF EXPLOSIVES AND OTHER DANGEROUS ARTICLES."  /1/  THE
SENATE PASSED A BILL ADOPTING THE SECOND ALTERNATIVE, BASED ON A
COMMITTEE REPORT THAT STATED: 

     "PROSECUTION FOR VIOLATIONS OF THE COMMISSION'S TRANSPORTATION

  OF EXPLOSIVES REGULATIONS HAS BEEN EXTREMELY DIFFICULT BECAUSE OF

  THE REQUIREMENT IN SECTION 835 OF THE ACT THAT VIOLATORS MUST

  HAVE KNOWLEDGE THAT THEY VIOLATED THE COMMISSION'S REGULATIONS. 

  WHILE THE COMMITTEE BELIEVES THAT EVERY REASONABLE PRECAUTION

  SHOULD BE TAKEN TO PROVIDE FOR PUNISHING THOSE VIOLATING A

  STATUTE WHOSE PURPOSE IS TO PROMOTE SAFETY, THE CREATION OF AN

  ABSOLUTE LIABILITY IS DEEMED TOO STRINGENT."  /2/ 

THE HOUSE, HOWEVER, REFUSED TO ACCEPT THE SENATE'S LANGUAGE AND
RESUBSTITUTED THE WORD "KNOWINGLY," ITS COMMITTEE REPORT STATING: 

"THE PRESENT TRANSPORTATION AND EXPLOSIVES ACT REQUIRES THAT A

  VIOLATION 'KNOWINGLY' BE COMMITTED BEFORE PENALTY MAY BE

  INFLICTED FOR SUCH VIOLATION.  UNDER THE PRESENT LAW THERE IS

  JUDICIAL PRONOUNCEMENT AS TO THE STANDARDS OF CONDUCT THAT MAKE A

  VIOLATION A 'KNOWING' VIOLATION.  THE INSTANT BILL WOULD CHANGE

  SUBSTANTIALLY THE QUANTUM OF PROOF NECESSARY TO PROVE A VIOLATION

  SINCE IT PROVIDES THAT 'ANY PERSON WHO BEING AWARE THAT THE

  INTERSTATE COMMERCE COMMISSION HAS FORMULATED REGULATIONS FOR THE

  SAFE TRANSPORTATION OF EXPLOSIVES AND OTHER DANGEROUS ARTICLES'

IS GUILTY IF THERE IS A NONCOMPLIANCE WITH THE REGULATIONS.  SUCH

  LANGAUGE MAY WELL CREATE AN ALMOST ABSOLUTE LIABILITY FOR

  VIOLATION.  . . . SINCE THE PENALTIES PRESCRIBED FOR VIOLATION OF

  THE EXPLOSIVES ACT ARE SUBSTANTIAL AND SINCE PROOF REQUIRED TO

  SUSTAIN A CHARGE OF VIOLATION OF SUCH REGULATIONS UNDER THE BILL

  WOULD REQUIRE LITTLE MORE THAN PROOF THAT THE VIOLATION OCCURRED,

  IT IS THE CONSIDERED OPINION OF THE COMMITTEE THAT SUCH A

  SUBSTANTIAL DEPARTURE IN PRESENT LAW IS NOT WARRANTED.  IT IS THE

PURPOSE OF THIS AMENDMENT TO RETAIN THE PRESENT LAW BY PROVIDING

  THAT A PERSON MUST 'KNOWINGLY' VIOLATE THE REGULATIONS."  /3/

THREE DAYS LATER THE SENATE AGREED TO THE RESUBSTITUTION OF THE WORD
"KNOWINGLY" BY PASSING THE HOUSE VERSION OF THE BILL. 

THE COURT TODAY THUS GRANTS TO THE EXECUTIVE BRANCH WHAT CONGRESS
EXPLICITLY REFUSED TO GRANT IN 1960.  IT EFFECTIVELY DELETES THE WORD
"KNOWINGLY" FROM THE LAW.  I CANNOT JOIN THE COURT IN THIS EXERCISE,
REQUIRING AS IT DOES SUCH A TOTAL DISREGARD OF PLAIN STATUTORY
LANGUAGE, ESTABLISHED JUDICIAL PRECEDENT, AND EXPLICIT LEGISLATIVE
HISTORY. 

A FINAL WORD IS IN ORDER.  TODAY'S DECISION WILL HAVE LITTLE
PRACTICAL IMPACT UPON THE PROSECUTION OF INTERSTATE MOTOR CARRIERS OR
INSTITIONAL SHIPPERS.  FOR INTERSTATE MOTOR CARRIERS ARE MEMBERS OF A
REGULATED INDUSTRY, AND THEIR OFFICERS, AGENTS, AND EMPLOYEES ARE
REQUIRED BY LAW TO BE CONVERSANT WITH THE REGULATIONS IN QUESTION.  /4/
AS A PRACTICAL MATTER, THEREFORE, THEY ARE UNDER A SPECIES OF ABSOLUTE
LIABILITY FOR VIOLATION OF THE REGULATIONS DESPITE THE "KNOWINGLY"
REQUIREMENT.  THIS, NO DOUBT, IS AS CONGRESS INTENDED IT TO BE.  CF.
UNITED STATES V. DOTTERWEICH, 320 U.S. 277; UNITED STATES V. BALINT,
258 U.S. 250.  LIKEWISE, PROSECUTION OF REGULAR SHIPPERS FOR VIOLATIONS
OF THE REGULATIONS COULD HARDLY BE IMPEDED BY THE "KNOWINGLY"
REQUIREMENT, FOR TRIERS OF FACT WOULD HAVE NO DIFFICULTY WHATEVER IN
INFERRING KNOWLEDGE ON THE PART OF THOSE WHOSE BUSINESS IT IS TO KNOW,
DESPITE THEIR PROTESTATIONS TO THE CONTRARY.  THE ONLY REAL IMPACT OF
THIS DECISION WILL BE UPON THE CASUAL SHIPPER, WHO MIGHT BE ANY MAN,
WOMAN, OR CHILD IN THE NATION.  A PERSON WHO HAD NEVER HEARD OF THE
REGULATION MIGHT MAKE A SINGLE SHIPMENT OF AN ARTICLE COVERED BY IT IN
THE COURSE OF A LIFETIME.  IT WOULD BE WHOLLY NATURAL FOR HIM TO ASSUME
THAT HE COULD DELIVER THE ARTICLE TO THE COMMON CARRIER AND DEPEND UPON
THE CARRIER TO SEE THAT IT WAS PROPERLY LABELED AND THAT THE SHIPPING
PAPERS WERE IN ORDER.  YET TODAY'S DECISION HOLDS THAT A PERSON WHO
DOES JUST THAT IS GUILTY OF A CRIMINAL OFFENSE PUNISHABLE BY A YEAR IN
PRISON.  THIS SEEMS TO ME A PERVERSION OF THE PURPOSE OF CRIMINAL LAW. 

I RESPECTFULLY DISSENT FROM THE OPINION AND JUDGMENT OF THE COURT. 

/1/  SEE H.R. REP. NO. 1975, 86TH CONG., 2D SESS., 10-11. 

/2/  S. REP. NO. 901, 86TH CONG., 1ST SESS., 2-3. 

/3/  H.R. REP. NO. 1975, 86TH CONG., 2D SESS., 2. 

/4/  49 CFR 397.02. 

JOHN F. DIENELT ARGUED THE CAUSE FOR THE UNITED STATES PRO HAC
VICE.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL SILSON, AND BEATRICE ROSENBERG. 

HAROLD E. SPENCER ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS CHARLES J. MCCARTHY. 
..END :












CHICAGO & N.W.R. CO. V. TRANSPORTATION UNION, 402 U.S. 570 


       CHICAGO & NORTH WESTERN RAILWAY CO. V. UNITED TRANSPORTATION

           UNION

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 189.  ARGUED JANUARY 18, 1971-- DECIDED JUNE 1, 1971 


PETITIONER RAILROAD BROUGHT THIS SUIT (AFTER FORMAL PROCEDURES OF THE
RAILWAY LABOR ACT HAD BEEN EXHAUSTED) TO ENJOIN A THREATENED STRIKE BY
RESPONDENT UNION, CHARGING THAT THE UNION HAD FAILED TO PERFORM ITS
OBLIGATIONS UNDER SEC. 2 FIRST OF THE RAILWAY LABOR ACT "TO EXERT EVERY
REASONABLE EFFORT TO MAKE AND MAINTAIN AGREEMENTS CONCERNING RATES OF
PAY, RULES, AND WORKING CONDITIONS."  THE UNION ANSWERED THAT THE
NORRIS-LAGUARDIA ACT DEPRIVED THE DISTRICT COURT OF JURISDICTION TO
ENJOIN THE STRIKE AND THAT IN ANY EVENT THE COMPLAINT FAILED TO STATE A
CLAIM ON WHICH RELIEF COULD BE GRANTED.  THE DISTRICT COURT, DECLINING
TO PASS ON WHETHER EITHER PARTY HAD VIOLATED SEC. 2 FIRST, CONCLUDED
THAT THE MATTER WAS ONE FOR ADMINISTRATIVE DETERMINATION BY THE
NATIONAL MEDIATION BOARD AND WAS NOT JUSTICIABLE, AND THAT SECS. 4 AND
7 OF THE NORRIS-LAGUARDIA ACT DEPRIVED THE COURT OF JURISDICTION TO
ENJOIN THE THREATENED STRIKE.  THE COURT OF APPEALS AFFIRMED,
CONSTRUING SEC. 2 FIRST AS HORTATORY AND NOT ENFORCEABLE BY THE COURTS
BUT ONLY BY THE NATIONAL MEDIATION BOARD.  HELD: 

1.  SEC. 2 FIRST WAS INTENDED TO BE, NOT JUST A MERE EXHORTATION,
BUT AN ENFORCEABLE LEGAL OBLIGATION ON CARRIERS AND EMPLOYEES ALIKE. 
PP. 574-578. 

2.  THE OBLIGATION IMPOSED BY SEC. 2 FIRST, WHICH IS CENTRAL TO THE
EFFECTIVE WORKING OF THE RAILWAY LABOR ACT, IS ENFORCEABLE IN THE
COURTS RATHER THAN BY THE MEDIATION BOARD, AS IS CLEAR FROM THE ACT'S
LEGISLATIVE HISTORY.  PP. 578-581. 

3.  SEC. 4 OF THE NORRIS-LAGUARDIA ACT DOES NOT PROHIBIT THE USE OF
A STRIKE INJUNCTION WHERE THAT REMEDY IS THE ONLY PRACTICAL, EFFECTIVE
MEANS OF ENFORCING THE DUTY IMPOSED BY SEC. 2 FIRST.  PP. 581-584. 

422 F.2D 979, REVERSED AND REMANDED. 

HARLAN, J., DELIVLERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, MARSHALL, AND BLACKMUN, JJ., JOINED.  BRENNAN, J.,
FILED A DISSENTING OPINION, IN WHICH BLACK, DOUGLAS, AND WHITE, JJ.,
JOINED, POST, P. 584. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE CHICAGO AND NORTH WESTERN RAILWAY CO., PETITIONER IN THIS ACTION,
BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS TO ENJOIN A THREATENED STRIKE BY THE RESPONDENT,
THE UNITED TRANSPORTATION UNION.  THE SUBSTANCE OF THE COMPLAINT WAS
THAT IN THE NEGOTIATIONS BETWEEN THE PARTIES OVER WORK RULES, THE UNION
HAD FAILED TO PERFORM ITS OBLIGATION UNDER SEC. 2 FIRST OF THE RAILWAY
LABOR ACT, AS AMENDED, 44 STAT. 577, 45 U.S.C. 152 FIRST, "TO EXERT
EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN AGREEMENTS CONCERNING
RATES OF PAY, RULES, AND WORKING CONDITIONS.  /1/  JURISDICTION WAS
SAID TO REST ON 28 U.S.C. 1331 AND 1337.  THE UNION IN ITS ANSWER
CONTENDED THAT SECS. 4, 7, AND 8 OF THE NORRIS-LAGUARDIA ACT, 47
STATE.  70, 71, 72, 29 U.S.C. 104, 107, 108, /2/  DEPRIVED THE DISTRICT
COURT OF JURISDICTION TO ISSUE A STRIKE INJUNCTION AND THAT IN ANY
EVENT THE COMPLAINT FAILED TO STATE A CLAIM UPON WHICH RELIEF COULD BE
GRANTED.  /3/  THE DISTRICT JUDGE, HAVING HEARD EVIDENCE AND ARGUMENT,
DECLINED TO PASS ON WHETHER EITHER PARTY HAD VIOLATED SEC. 2 FIRST.  IN
AN UNREPORTED OPINION, HE CONCLUDED THAT THE QUESTION WAS A MATTER FOR
ADMINISTRATIVE DETERMINATION BY THE NATIONAL MEDIATION BOARD AND WAS
NONJUSTICIABLE; HE FURTHER RULED THAT SECS. 4 AND 7 OF THE NORRIS
LAGUARDIA ACT DEPRIVED THE COURT OF JURISDICTION TO ISSUE AN INJUNCTION
AGAINST THE UNION'S THREATENED STRIKE.  THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT AFFIRMED, 422 F.2D 979, CONSTRUING SEC. 2 FIRST AS A
STATEMENT OF THE PURPOSE AND POLICY OF THE SUBSEQUENT PROVISIONS OF THE
ACT, AND NOT AS A SPECIFIC REQUIREMENT ANTICIPATING JUDICIAL
ENFORCEMENT.  RATHER, IN THAT COURT'S VIEW, THE ENFORCEMENT OF SEC. 2
FIRST WAS SOLELY A MATTER FOR THE NATIONAL MEDIATION BOARD.  ID., AT
985-988.  WE GRANTED CERTIORARI TO CONSIDER THIS IMPORTANT QUESTION
UNDER THE RAILWAY LABOR ACT, ON WHICH THE LOWER COURTS HAD EXPRESSED
DIVERGENT VIEWS.  /4/ FOR REASONS THAT FOLLOW WE REVERSE. 

        I 

FOR AT LEAST THE PAST DECADE, THE NATION'S RAILROADS AND THE
RESPONDENT UNION OR ITS PREDECESSORS HAVE BEEN ENGAGED IN AN OFF-AND-ON
STRUGGLE OVER THE NUMBER OF BRAKEMEN TO BE EMPLOYED ON EACH TRAIN.  WE
FIND IT UNNECESSARY TO DESCRIBE THIS HISTORY IN ANY GREAT DETAIL,
EITHER GENERALLY OR WITH PARTICULAR REFERENCE TO PETITIONER.  ACCOUNTS
AT EARLIER STAGES MAY BE FOUND IN BROTHERHOOD OF LOCOMOTIVE ENGINEERS
V. BALTIMORE & OHIO R. CO., 372 U.S. 284, 285-288 (1963); BROTHERHOOD
OF LOCOMOTIVE FIREMEN & ENGINEMEN V. CHICAGO, BURLINGTON & QUINCY R.
CO., 225 F.SUPP.  11, 14-17 (DC), AFF'D, 118 U.S.APP.D.C. 100, 331 F.2D
1020 (1964); BROTHERHOOD OF RAILROAD TRAINMEN V. AKRON & BARBERTON BELT
R. CO., 128 U.S.APP.D.C. 59, 66-70, 385 F.2D 581, 588-592 (1967);
BROTHERHOOD OF RAILROAD TRAINMEN V. ATLANTIC COAST LINE R. CO., 127
U.S.APP.D.C. 298, 383 F.2D 225 (1967); AND SEE THE OPINION OF THE COURT
BELOW, 422 F.2D, AT 980-982, AND N. 4.  FOR PRESENT PURPOSES IT IS
SUFFICIENT TO OBSERVE THAT THE PARTIES HAVE EXHAUSTED THE FORMAL
PROCEDURES OF THE RAILWAY LABOR ACT:  NOTICES, CONFERENCES,
UNSUCCESSFUL MEDIATION, REFUSAL BY THE UNION TO ACCEPT THE NATIONAL
MEDIATION BOARD'S PROFFER OF ARBITRATION, TERMINATION OF MEDIATION, AND
EXPIRATION OF THE 30-DAY COOLING-OFF PERIOD OF SEC. 5 FIRST, 45 U.S.C.
155 FIRST.  THE RAILROAD'S CHARGE THAT THE UNION HAD VIOLATED SEC. 2
FIRST WAS BASED PRINCIPALLY ON ITS CONTENTION THAT THE UNION HAD
CONSISTENTLY REFUSED TO HANDLE THE DISPUTE ON A NATIONWIDE BASIS WHILE
MAINTAINING AN ADAMANT DETERMINATION THAT NO AGREEMENT SHOULD BE
REACHED WITH THE CHICAGO & NORTH WESTERN MORE FAVORABLE TO THE CARRIER
THAN AGREEMENTS WHICH THE UNION HAD ALREADY REACHED WITH OTHER
RAILROADS.  THE COMPLAINT ALSO ALLEGED THAT THE UNION HAD REFUSED TO
BARGAIN ON THE PROPOSALS IN THE RAILROAD'S COUNTERNOTICES. 

THE NARROW QUESTIONS PRESENTED TO US ARE WHETHER SEC. 2 FIRST
IMPOSES A LEGAL OBLIGATION ON CARRIERS AND EMPLOYEES OR IS A MERE
EXHORTATION; WHETHER THE OBLIGATION IS ENFORCEABLE BY THE JUDICIARY;
AND WHETHER THE NORRIS-LAGUARDIA ACT STRIPS THE FEDERAL COURTS OF
JURISDICTION TO ENFORCE THE OBLIGATION BY A STRIKE INJUNCTION.  THE
PARTIES HAVE NOT REQUESTED US TO DECIDE WHETHER THE ALLEGATIONS OF THE
COMPLAINT OR THE EVIDENCE PRESENTED AT THE HEARING WAS SUFFICIENT TO
SHOW A VIOLATION OF SEC. 2 FIRST, AND THE LOWER COURTS, BY THEIR
RESOLUTION OF THE THRESHOLD QUESTIONS, DID NOT REACH THE ISSUE. 
ACCORDINGLY, WE INTIMATE NO VIEW ON THIS MATTER. 

        II 

THIS COURT HAS PREVIOUSLY OBSERVED THAT "(THE HEART OF THE RAILWAY
LABOR ACT IS THE DUTY, IMPOSED BY SEC. 2 FIRST UPON MANAGEMENT AND
LABOR, 'TO EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN
AGREEMENTS CONCERNING RATES OF PAY, RULES, AND WORKING CONDITIONS, AND
TO SETTLE ALL DISPUTES . . . IN ORDER TO AVOID ANY INTERRUPTION TO
COMMERCE OR TO THE OPERATION OF ANY CARRIER GROWING OUT OF ANY DISPUTE
BETWEEN THE CARRIER AND THE EMPLOYEES THEREOF.'"  BROTHERHOOD OF
RAILROAD TRAINMEN V. JACKSONVILLE TERMINAL CO., 394 U.S. 369, 377-378
(1969).  IT IS NOT SURPRISING THAT SUCH IS THE CASE.  AS ONE LEADING
COMMENTATOR HAS SAID, IN CONNECTION WITH THE DUTY UNDER THE NATIONAL
LABOR RELATIONS ACT TO BARGAIN IN GOOD FAITH, "(IT WAS NOT ENOUGH FOR
THE LAW TO COMPEL THE PARTIES TO MEET AND TREAT WITHOUT PASSING
JUDGMENT UPON THE QUALITY OF THE NEGOTIATIONS.  THE BARGAINING STATUS
OF A UNION CAN BE DESTROYED BY GOING THROUGH THE MOTIONS OF NEGOTIATING
ALMOST AS EASILY AS BY BLUNTLY WITHHOLDING RECOGNITION."  COX, THE DUTY
TO BARGAIN IN GOOD FAITH, 71 HARV.L.REV.  1401, 1412-1413 (1958).  WE
RECOGNIZED THIS TO BE TRUE WHEN WE SAID IN NLRB V. INSURANCE AGENTS'
INTERNATIONAL, 361 U.S. 477, 484-485 (1960), THAT "THE DUTY OF
MANAGEMENT TO BARGAIN IN GOOD FAITH IS ESSENTIALLY A COROLLARY OF ITS
DUTY TO RECOGNIZE THE UNION." 

VIRGINIAN R. CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515 (1937),
FURNISHES AN EARLY ILLUSTRATION OF THIS PRINCIPLE IN CONNECTION WITH
THE DUTY TO "EXERT EVERY REASONABLE EFFORT" UNDER THE RAILWAY LABOR
ACT.  IN THAT CASE, THE RAILROAD REFUSED TO RECOGNIZE A UNION CERTIFIED
BY THE NATIONAL MEDIATION BOARD AS THE DULY AUTHORIZED REPRESENTATIVE
OF ITS SHOP WORKERS, AND INSTEAD SOUGHT TO COERCE THESE EMPLOYEES TO
JOIN A COMPANY UNION.  THE EMPLOYEES SOUGHT AND OBTAINED AN INJUNCTION
REQUIRING THE RAILROAD TO PERFORM ITS DUTY UNDER SEC. 2 NINTH TO "TREAT
WITH" THEIR CERTIFIED REPRESENTATIVE; THE INJUNCTION ALSO COMPELLED THE
RAILROAD "TO EXERT EVERY REASONABLE EFFORT" TO MAKE AND MAINTAIN
AGREEMENTS WITH THE UNION.  THIS COURT AFFIRMED THAT DECREE, EXPLICITLY
REJECTING THE ARGUMENT THAT THE DUTY TO EXERT EVERY REASONABLE EFFORT
WAS ONLY A MORAL OBLIGATION.  THIS CONCLUSION HAS BEEN REPEATEDLY
REFERRED TO WITHOUT CRITICISM IN SUBSEQUENT DECISIONS.  /5/ 

THE CONCLUSION THAT SEC. 2 FIRST IS MORE THAN MERELY HORTATORY FINDS
SUPPORT IN THE LEGISLATIVE HISTORY OF THE RAILWAY LABOR ACT AS WELL. 
AS THIS COURT HAS OFTEN NOTED, THE RAILWAY LABOR ACT OF 1926 WAS, AND
WAS ACKNOWLEDGED TO BE, AN AGREEMENT WORKED OUT BETWEEN MANAGEMENT AND
LABOR, AND RATIFIED BY THE CONGRESS AND THE PRESIDENT.  /6/
ACCORDINGLY, THE STATEMENTS OF THE SPOKESMEN FOR THE TWO PARTIES MADE
IN THE HEARINGS ON THE PROPOSED ACT ARE ENTITLED TO GREAT WEIGHT IN THE
CONSTRUCTION OF THE ACT.  /7/ 

IN THE HOUSE HEARINGS, DONALD R. RICHBERG, COUNSEL FOR THE ORGANIZED
RAILWAY EMPLOYEES SUPPROTING THE BILL, WAS UNEQUIVOCAL ON WHETHER SEC.
2 FIRST IMPOSED A LEGAL OBLIGATION ON THE PARTIES.  HE STATED, "IT IS
(THE PARTIES') DUTY TO EXERT EVERY REASONABLE EFFORT . . . TO SETTLE
ALL DISPUTES, WHETHER ARISING OUT OF THE ABROGATION OF AGREEMENTS OR
OTHERWISE, IN ORDER TO AVOID ANY INTERRUPTION TO COMMERCE.  IN OTHER
WORDS, THE LEGAL OBLIGATION IS IMPOSED, AND AS I HAVE PREVIOUSLY
STATED, AND I WANT TO EMPHASIZE IT, I BELIEVE THAT THE DELIBERATE
VIOLATION OF THAT LEGAL OBLIGATION COULD BE PREVENTED BY COURT
COMPULSION."  /8/  MR. RICHBERG WENT ON TO DESCRIBE WHY THE BILL HAD
BEEN DRAFTED IN GENERAL LANGUAGE APPLICABLE EQUALLY TO BOTH PARTIES,
RATHER THAN IN TERMS OF SPECIFIC REQUIREMENTS OR PROHIBITIONS
ACCOMPANIED BY EXPLICIT SANCTIONS: 

     "WE BELIEVE, AND THIS LAW HAS BEEN WRITTEN UPON THE THEORY,

  THAT IN THE DEVELOPMENT OF THE OBLIGATIONS IN INDUSTRIAL

  RELATIONS AND THE LAW IN REGARD THERETO, THERE IS MORE DANGER IN

  ATTEMPTING TO WRITE SPECIFIC PROVISIONS AND PENALTIES INTO THE

  LAW THAN THERE IS IN WRITING THE GENERAL DUTIES AND OBLIGATIONS

  INTO THE LAW AND LETTING THE ENFORCEMENT OF THOSE DUTIES AND

  OBLIGATIONS DEVELOP THROUGH THE COURTS IN THE WAY IN WHICH THE

  COMMON LAW HAS DEVELOPED IN ENGLAND AND AMERICA."  /9/

ACCORDINGLY, WE THINK IT PLAIN THAT SEC. 2 FIRST WAS INTENDED TO BE
MORE THAN A MERE STATEMENT OF POLICY OR EXHORTATION TO THE PARTIES;
RATHER, IT WAS DESIGNED TO BE A LEGAL OBLIGATION, ENFORCEABLE BY
WHATEVER APPROPRIATE MEANS MIGHT BE DEVELOPED ON A CASE-BY-CASE BASIS. 

THE COURT OF APPEALS, IN SEEMINGLY COMING TO THE CONTRARY
CONCLUSION, RELIED ON THIS COURT'S DECISION IN GENERAL COMMITTEE OF
ADJUSTMENT V. MISSOURI-KANSAS-TEXAS R. CO., 320 U.S. 323 (1943).  IN
THAT CASE, THE COURT HELD THAT JURISDICTIONAL DISPUTES BETWEEN UNIONS
WERE NOT JUSTICIABLE, BUT WERE LEFT BY THE ACT EITHER TO RESOLUTION BY
THE NATIONAL MEDIATION BOARD UNDER SEC. 2 NINTH OR TO THE ECONOMIC
MUSCLE OF THE PARTIES.  RELIANCE HAD BEEN PLACED ON SEC. 2 SECOND,
WHICH REQUIRES THAT ALL DISPUTES SHOULD BE CONSIDERED AND IF POSSIBLE
DECIDED IN CONFERENCE OF THE AUTHORIZED REPRESENTATIVES OF THE
PARTIES.  THE COURT HELD THAT THIS RELIANCE WAS MISPLACED:  "NOR DOES
SEC. 2, SECOND MAKE JUSTICIABLE WHAT OTHERWISE IS NOT.  . . . SEC. 2,
SECOND, LIKE SEC. 2, FIRST, MERELY STATES THE POLICY WHICH THOSE OTHER
PROVISIONS BUTTRESS WITH MORE PARTICULARIZED COMMANDS."  ID., AT 334
(FOOTNOTE OMITTED). 

IN LIGHT OF THE PLACE OF SEC. 2 FIRST IN THE SCHEME OF THE RAILWAY
LABOR ACT, THE LEGISLATIVE HISTORY OF THAT SECTION, AND THE DECISIONS
INTERPRETING IT, THE PASSING REFERENCE TO IT IN THE M-K-T CASE CANNOT
BEAR THE WEIGHT WHICH THE COURT OF APPEALS SOUGHT TO PLACE UPON IT.

III 

GIVEN THAT SEC. 2 FIRST IMPOSES A LEGAL OBLIGATION ON THE PARTIES,
THE QUESTION REMAINS WHETHER IT IS AN OBLIGATION ENFORCEABLE BY THE
JUDICIARY.  WE HAVE OFTEN BEEN CONFRONTED WITH SIMILAR QUESTIONS IN
CONNECTION WITH OTHER DUTIES UNDER THE RAILWAY LABOR ACT.  /10/  OUR
CASES REVEAL THAT WHERE THE STATUTORY LANGUAGE AND LEGISLATIVE HISTORY
ARE UNCLEAR, THE PROPRIETY OF JUDICIAL ENFORCEMENT TURNS ON THE
IMPORTANCE OF THE DUTY IN THE SCHEME OF THE ACT, THE CAPACITY OF THE
COURTS TO ENFORCE IT EFFECTIVELY, AND THE NECESSITY FOR JUDICIAL
ENFORCEMENT IF THE RIGHT OF THE AGGRIEVED PARTY IS NOT TO PROVE
ILLUSORY. 

WE HAVE ALREADY OBSERVED THAT THE OBLIGATION UNDER SEC. 2 FIRST IS
CENTRAL TO THE EFFECTIVE WORKING OF THE RAILWAY LABOR ACT.  THE
STRICTEST COMPLIANCE WITH THE FORMAL PROCEDURES OF THE ACT IS
MEANINGLESS IF ONE PARTY GOES THROUGH THE MOTIONS WITH "A DESIRE NOT TO
REACH AN AGREEMENT."  NLRB V. REED & PRINCE MFG. CO., 205 F.2D 131, 134
(CA1 1953).  WHILE CASES IN WHICH THE UNION IS THE PARTY WITH THIS
ATTITUDE ARE PERHAPS RARE, THEY ARE NOT UNKNOWN.  SEE CHICAGO
TYPOGRAPHICAL UNION NO. 16, 86 N.L.R.B. 1041 (1949), ENFORCED SUB NOM.
AMERICAN NEWSPAPER PUBLISHERS ASSN. V. NLRB, 193 F.2D 782 (CA7 1951),
AFF'D AS TO ANOTHER ISSUE, 345 U.S. 100 (1953).  WE THINK THAT AT LEAST
TO THIS EXTENT THE DUTY TO EXERT EVERY REASONABLE EFFORT IS OF THE
ESSENCE.  /11/ 

THE CAPACITY OF THE COURTS TO ENFORCE THIS DUTY WAS CONSIDERED AND
AFFIRMED IN THE VIRGINIAN CASE.  MR. JUSTICE STONE, SPEAKING FOR THE
COURT, NOTED THAT "WHETHER ACTION TAKEN OR OMITTED IS IN GOOD FAITH OR
REASONABLE, ARE EVERYDAY SUBJECTS OF INQUIRY BY COURTS IN FRAMING AND
ENFORCING THEIR DECREES."  300 U.S.,AT 550.  SECTION 8 OF THE NORRIS
LAGUARDIA ACT EXPLICITLY REQUIRES DISTRICT COURTS TO DETERMINE WHETHER
PLAINTIFFS HAVE "FAILED TO MAKE EVERY REASONABLE EFFORT" TO SETTLE THE
DISPUTE OUT OF WHICH THE REQUEST FOR THE INJUNCTION GROWS.  /12/ WE
HAVE NO REASON TO BELIEVE THAT THE DISTRICT COURTS ARE LESS CAPABLE OF
MAKING THE INQUIRY IN THE ONE SITUATION THAN IN THE OTHER. 

FINALLY, WE MUST CONSIDER THE COURT OF APPEALS' POSITION THAT THE
QUESTION WHETHER A PARTY HAD EXERTED EVERY REASONABLE EFFORT WAS
COMMITTED BY THE RAILWAY LABOR ACT TO THE NATIONAL MEDIATION BOARD
RATHER THAN TO THE COURTS.  WE BELIEVE THAT THE LEGISLATIVE HISTORY OF
THE RAILWAY LABOR ACT RATHER PLAINLY DISPROVES THIS CONTENTION.  IT IS
COMMONPLACE THAT THE 1926 RAILWAY LABOR ACT WAS ENACTED BECAUSE OF
DISSATISFACTION WITH THE 1920 TRANSPORATION ACT, AND PARTICULARLY WITH
THE PERFORMANCE OF THE RAILROAD LABOR BOARD.  WHILE THERE WERE MANY
CAUSES OF THIS DISSATISFACTION, ONE OF THE MOST PROMINENT WAS THAT
BECAUSE OF ITS ADJUDICATORY FUNCTIONS, THE BOARD EFFECTIVELY LOST ANY
INFLUENCE IN ATTEMPTING TO SETTLE DISPUTES.  THROUGHOUT THE HEARINGS ON
THE BILL WHICH BECAME THE 1926 ACT THERE ARE REPEATED EXPRESSIONS OF
CONCERN THAT THE NATIONAL MEDIATION BOARD SHOULD RETAIN NO ADJUDICATORY
FUNCTION, SO THAT IT MIGHT MAINTAIN THE CONFIDENCE OF BOTH PARTIES. 
/13/  AND AS THE COURT NOTED IN SWITCHMEN'S UNION V. NATIONAL MEDIATION
BOARD, 320 U.S. 297, 303 (1943), WHEN CONGRESS IN 1934 GAVE THE BOARD
POWER TO RESOLVE CERTAIN JURISDICTIONAL DISPUTES, IT AUTHORIZED THE
BOARD TO APPOINT A COMMITTEE OF NEUTRALS TO DECIDE THE DISPUTE "SO THAT
THE BOARD'S 'OWN USEFULNESS OF SETTLING DISPUTES THAT MIGHT ARISE
THEREAFTER MIGHT NOT BE IMPAIRED.'  S. REP. NO. 1065, 73D CONG., 2D
SESS., P. 3."  ONLY LAST TERM WE REFERRED TO THE FACT THAT "THE
MEDIATION BOARD HAS NO ADJUDICATORY AUTHORITY WITH REGARD TO MAJOR
DISPUTES."  DETROIT & T.S.L.R. CO. V. UNITED TRANSPORTATION UNION, 396
U.S. 142, 158 (1969).  IN LIGHT OF THESE CONSIDERATIONS, WE THINK THE
CONCLUSION INESCAPABLE THAT CONGRESS INTENDED THE ENFORCEMENT OF SEC. 2
FIRST TO BE OVERSEEN BY APPROPRIATE JUDICIAL MEANS RATHER THAN BY THE
MEDIATION BOARD'S RETAINING JURISDICTION OVER THE DISPUTE OR
PREMATURELY RELEASING THE PARTIES FOR RESORT TO SELF-HELP IF IT FEELS
SUCH ACTION CALLED FOR.  /14/

        IV 

WE TURN FINALLY TO THE QUESTION WHETHER SEC. 4 OF THE NORRIS
LAGUARDIA ACT /15/  PROHIBITS THE USE OF A STRIKE INJUNCTION IN ALL
CASES OF VIOLATION OF SEC. 2 FIRST.  THE FUNDAMENTAL PRINCIPLES IN THIS
AREA WERE EPITOMIZED IN INTERNATIONAL ASSOCIATION OF MACHINISTS V.
STREET, 367 U.S. 740, 772-773 (1961): 

"THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C. 101-115, EXPRESSES A
BASIC POLICY AGAINST THE INJUNCTION OF ACTIVITIES OF LABOR UNIONS.  WE
HAVE HELD THAT THE ACT DOES NOT DEPRIVE THE FEDERAL COURTS OF
JURISDICTION TO ENJOIN COMPLIANCE WITH VARIOUS MANDATES OF THE RAILWAY
LABOR ACT.  VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515; GRAHAM
V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 338 U.S. 232. 
HOWEVER, THE POLICY OF THE ACT SUGGESTS THAT THE COURTS SHOULD HESITATE
TO FIX UPON THE INJUNCTIVE REMEDY FOR BREACHES OF DUTY OWING UNDER THE
LABOR LAWS UNLESS THAT REMEDY ALONE CAN EFFECTIVELY GUARD THE
PLAINTIFF'S RIGHT."  SIMILAR STATEMENTS MAY BE FOUND IN MANY OF OUR
OPINIONS.  /16/  WE CONSIDER THAT THESE STATEMENTS PROPERLY ACCOMMODATE
THE CONFLICTING POLICIES OF OUR LABOR LAWS, AND WE ADHERE TO THEM.  WE
FIND IT QUITE IMPOSSIBLE TO SAY THAT NO SET OF CIRCUMSTANCES COULD
ARISE WHERE A STRIKE INJUNCTION IS THE ONLY PRACTICAL, EFFECTIVE MEANS
OF ENFORCING THE COMMAND OF SEC. 2 FIRST.  ACCORDINGLY, OUR PRIOR
DECISIONS LEAD US TO HOLD THAT THE NORRIS-LAGUARDIA ACT DID NOT FORBID
THE DISTRICT COURT FROM EVEN CONSIDERING WHETHER THIS IS SUCH A CASE. 
/17/  IF WE HAVE MISINTERPRETED THE CONGRESSIONAL PURPOSE, CONGRESS CAN
REMEDY THE SITUATION BY SPEAKING MORE CLEARLY.  IN THE MEANTIME WE HAVE
NO CHOICE BUT TO TRACE OUT AS BEST WE MAY THE UNCERTAIN LINE OF
APPROPRIATE ACCOMMODATION OF TWO STATUTES WITH PURPOSES THAT LEAD IN
OPPOSING DIRECTIONS.  /18/ 

WE RECOGNIZE, OF COURSE, THAT OUR HOLDING THAT STRIKE INJUNCTIONS
MAY ISSUE WHEN SUCH A REMEDY IS THE ONLY PRACTICAL, EFFECTIVE MEANS OF
ENFORCING THE DUTY TO EXERT EVERY REASONABLE EFFORT TO MAKE AND
MAINTAIN AGREEMENTS FALLS FAR SHORT OF THAT DEFINITENESS AND CLARITY
WHICH BUSINESSMEN AND LABOR LEADERS UNDOUBTEDLY DESIRE.  IT CREATES A
NOT INSIGNIFICANT DANGER THAT PARTIES WILL STRUCTURE THEIR NEGOTIATING
POSITIONS AND TACTICS WITH AN EYE ON THE COURTS, RATHER THAN
RESTRICTING THEIR ATTENTION TO THE BUSINESS AT HAND.  MOREOVER, THE
PARTY SEEKING TO MAINTAIN THE STATUS QUO MAY BE LESS WILLING TO
COMPROMISE DURING THE DETERMINATE PROCESSES OF THE RAILWAY LABOR ACT IF
HE BELIEVES THAT THERE IS A CHANCE OF INDEFINITELY POSTPONING THE OTHER
PARTY'S RESORT TO SELF-HELP AFTER THOSE PROCEDURES HAVE BEEN
EXHAUSTED.  SEE BROTHERHOOD OF RAILROAD TRAINMEN V. JACKSONVILLE
TERMINAL CO., 394 U.S.,AT 380-381; CF. HEARINGS, SUPRA, N. 8, AT 17,
50, 100 (MR. RICHBERG); ID., AT 190 (MR. ROBERTSON).  FINALLY, THE
VAGUENESS OF THE OBLIGATION UNDER SEC. 2 FIRST COULD PROVIDE A COVER
FOR FREEWHEELING JUDICIAL INTERFERENCE IN LABOR RELATIONS OF THE SORT
THAT CALLED FORTH THE NORRIS-LAGUARDIA ACT IN THE FIRST PLACE.  /19/ 

THESE WEIGHTY CONSIDERATIONS INDEED COUNSEL RESTRAINT IN THE
ISSUANCE OF STRIKE INJUNCTIONS BASED ON VIOLATIONS OF SEC. 2 FIRST. 
SEE N. 11, SUPRA.  NEVERTHELESS, THE RESULT REACHED TODAY IS
UNAVOIDABLE IF WE ARE TO GIVE EFFECT TO ALL OUR LABOR LAWS-- ENACTED AS
THEY WERE BY CONGRESSES OF DIFFERING POLITICAL MAKEUP AND DIFFERING
VIEWS ON LABOR RELATIONS-- RATHER THAN RESTRICT OUR EXAMINATION TO
THOSE PIECES OF LEGISLATION WHICH ARE IN ACCORD WITH OUR PERSONAL VIEWS
OF SOUND LABOR POLICY.  SEE BOYS MARKETS V. RETAIL CLERKS LOCAL 770,
398 U.S. 235, 250 (1970). 

      V 

AS WE NOTED AT THE OUTSET, WE HAVE NOT BEEN REQUESTED TO RULE ON
WHETHER THE RECORD SHOWS A VIOLATION OF SEC. 2 FIRST IN CIRCUMSTANCES
JUSTIFYING A STRIKE INJUNCTION, AND WE DO NOT DO SO.  SUCH A QUESTION
SHOULD BE EXAMINED BY THIS COURT, IF AT ALL, ONLY AFTER THE FACTS HAVE
BEEN MARSHALED AND THE ISSUES CLARIFIED THROUGH THEDECISIONS OF LOWER
COURTS. 

IN VIEW OF THE UNCERTAINTY HERETOFORE EXISTING ON WHAT CONSTITUTED A
VIOLATION OF SEC. 2 FIRST AND WHAT SHOWING WAS NECESSARY TO MAKE OUT A
CASE FOR A STRIKE INJUNCTION, WE BELIEVE THE APPROPRIATE COURSE IS TO
REMAND THE CASE TO THE COURT OF APPEALS WITH INSTRUCTIONS TO RETURN THE
CASE TO THE DISTRICT COURT FOR THE TAKING OF SUCH FURTHER EVIDENCE AS
THE PARTIES MAY DEEM NECESSARY AND THAT COURT MAY FIND HELPFUL IN
PASSING ON THE ISSUES WHICH THE CASE PRESENTS IN LIGHT OF OUR OPINION
TODAY. 

     REVERSED AND REMANDED. 

/1/  THE SUBSECTION PROVIDES: 

"IT SHALL BE THE DUTY OF ALL CARRIERS, THEIR OFFICERS, AGENTS, AND
EMPLOYEES TO EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN
AGREEMENTS CONCERNING RATES OF PAY, RULES, AND WORKING CONDITIONS, AND
TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF THE APPLICATION OF SUCH
AGREEMENTS OR OTHERWISE, IN ORDER TO AVOID ANY INTERRUPTION TO COMMERCE
OR TO THE OPERATION OF ANY CARRIER GROWING OUT OF ANY DISPUTE BETWEEN
THE CARRIER AND THE EMPLOYEES THEREOF." 

/2/  SECTION 4 READS IN RELEVANT PART: 

"NO COURT OF THE UNITED STATES SHALL HAVE JURISDICTION TO ISSUE ANY
RESTRAINING ORDER OR TEMPORARY OR PERMANENT INJUNCTION IN ANY CASE
INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE TO PROHIBIT ANY PERSON OR
PERSONS PARTICIPATING OR INTERESTED IN SUCH DISPUTE (AS THESE TERMS ARE
HEREIN DEFINED) FROM DOING WHETHER SINGLY OR IN CONCERT, ANY OF THE
FOLLOWING ACTS: 

"(A) CEASING OR REFUSING TO PERFORM ANY WORK OR TO REMAIN IN ANY
RELATION OF EMPLOYMENT.  . . ."  29 U.S.C. 104. 

INJUNCTIONS IN LABOR DISPUTES.  SECTION 8 IS SET OUT IN N. 12, INFRA. 

/3/  THE UNION ALSO AVERRED THAT IT HAD COMPLIED WITH THE COMMAND OF
SEC. 2 FIRST AND THAT THE RAILROAD HAD BEEN DERELICT IN ITS DUTY UNDER
THAT SECTION. 

/4/  SEE, BESIDES THE OPINION BELOW, PIEDMONT AVIATION, INC. V. AIR
LINE PILOTS ASSN., 416 F.2D 633 (CA4 1969); BROTHERHOOD OF RAILROAD
TRAINMEN V. AKRON & BARBERTON BELT R. CO., 128 U.S.APP.D.C. 59, 385
F.2D 581 (1967), AFF'G 253 F.SUPP.  538 (1966); SEABOARD WORLD
AIRLINES, INC. V. TRANSPORT WORKERS, 425 F.2D 1086 (CA2 1970); UNITED
INDUSTRIAL WORKERS V. GALVESTON WHARVES, 400 F.2D 320 (CA5 1968). 

/5/  E.G., ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711, 721-722, N.
12 (1945), ADHERED TO ON REHEARING, 327 U.S. 661 (1946); STARK V.
WICKARD, 321 U.S. 288, 306-307 (1944); ORDER OF RAILROAD TELEGRAPHERS
V. CHICAGO & N.W.R. CO., 362 U.S. 330, 339 (1960); INTERNATIONAL
ASSOCIATION OF MACHINISTS V. STREET, 367 U.S. 740, 758 (1961);
BROTHERHOOD OF RAILWAY CLERKS V. ASSOCIATION FOR THE BENEFIT OF NON
CONTRACT EMPLOYEES, 380 U.S. 650, 658 (1965); DETROIT & T.S.L.R. CO. V.
UNITED TRANSPORTATION UNION, 396 U.S. 142, 149, 151 (1969). 

/6/  E.G., INTERNATIONAL ASSOCIATION OF MACHINISTS V. STREET, 367
U.S. 740, 758 (1961). 

/7/  SEE, E.G., DETROIT & T.S.L.R. CO. V. UNITED TRANSPORATION
UNION, 396 U.S. 142, 151 N. 18, 152 N. 19, 153 N. 20 (1969). 

/8/  HEARINGS ON RAILROAD LABOR DISPUTES (H.R. 7189) BEFORE THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 69TH CONG., 1ST
SESS., 91 (1926).  SEE ALSO ID., AT 40-41, 66, 84-85. 

/9/  ID., AT 91.  SEE ALSO ID., AT 66. 

/10/ SEE, E.G., TEXAS & N.O.R. CO. V. BROTHERHOOD OF RAILWAY CLERKS,
281 U.S. 548 (1930); VIRGINIAN R. CO. V. SYSTEM FEDERATION NO. 40, 300
U.S. 515 (1937); BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S.
768 (1952). 

/11/  WHILE WE HAVE NO OCCASION TO DETERMINE WHETHER SEC. 2 FIRST
REQUIRES MORE OF THE PARTIES THAN AVOIDANCE OF "BAD FAITH" AS DEFINED
BY JUDGE MAGRUDER IN REED & PRINCE, SUPRA, WE NOTE TWO CAVEATS.  FIRST,
PARALLELS BETWEEN THE DUTY TO BARGAIN IN GOOD FAITH AND THE DUTY TO
EXERT EVERY REASONABLE EFFORT, LIKE ALL PARALLELS BETWEEN THE NLRA AND
THE RAILWAY LABOR ACT, SHOULD BE DRAWN WITH THE UTMOST CARE AND WITH
FULL AWARENESS OF THE DIFFERENCES BETWEEN THE STATUTORY SCHEMES.  CF.
BROTHERHOOD OF RAILROAD TRAINMEN V. JACKSONVILLE TERMINAL CO., 394 U.S.
369, 383 (1969).  SECOND, GREAT CIRCUMSPECTION SHOULD BE USED IN GOING
BEYOND CASES INVOLVING "DESIRE NOT TO REACH AN AGREEMENT," FOR DOING SO
RISKS INFRINGEMENT OF THE STRONG FEDERAL LABOR POLICY AGAINST
GOVERNMENTAL INTERFERENCE WITH THE SUBSTANTIVE TERMS OF COLLECTIVE
BARGAINING AGREEMENTS.  SEE N. 19, INFRA. 

/12/  THE SECTION PROVIDES IN FULL: 

"NO RESTRAINING ORDER OR INJUNCTIVE RELIEF SHALL BE GRANTED TO ANY
COMPLAINANT WHO HAS FAILED TO COMPLY WITH ANY OBLIGATION IMPOSED BY LAW
WHICH IS INVOLVED IN THE LABOR DISPUTE IN QUESTION, OR WHO HAS FAILED
TO MAKE EVERY REASONABLE EFFORT TO SETTLE SUCH DISPUTE EITHER BY
NEGOTIATION OR WITH THE AID OF ANY AVAILABLE GOVERNMENTAL MACHINERY OF
MEDIATION OR VOLUNTARY ARBITRATION."  29 U.S.C. 108. 

/13/  E.G., HEARINGS, SUPRA, N. 8, AT 18 (MR. RICHBERG): 

"THE BOARD OF MEDIATION, TO PRESERVE ITS ABILITY TO MEDIATE YEAR
AFTER YEAR BETWEEN THE PARTIES, MUST NOT BE GIVEN ANY DUTIES TO MAKE
PUBLIC REPORTS CONDEMNING ONE PARTY OR THE OTHER, EVEN THOUGH THE BOARD
MAY THINK ONE PARTY IS WRONG.  THAT IS THE FUNDAMENTAL CAUSE OF FAILURE
OF THE (RAILROAD) LABOR BOARD.  THAT IS THE REASON WHY THE LABOR BOARD
MACHINERY NEVER WOULD WORK, BECAUSE A BOARD WAS CONSTITUTED TO SIT AND
DELIVER OPINIONS WHICH MUST BE OPINIONS FOR OR AGAINST ONE PARTY, AND
AS SOON AS THAT BOARD BEGAN DELIVERING OPINIONS PUBLICLY AGAINST A
PARTY, THAT PARTY WAS SURE THE BOARD WAS UNFAIR TO IT.  THAT IS HUMAN
NATURE.  THE BOARD, IN OTHER WORDS, WAS CREATED IN A MANNER TO DESTROY
ANY CONFIDENCE IN ITSELF. 

"THE BOARD OF MEDIATORS IS NOT FOR THAT FUNCTION.  THE BOARD OF
MEDIATORS SHOULD NEVER MAKE ANY REPORTS TO THE PUBLIC CONDEMNING ONE
PARTY OR THE OTHER.  THEIR DUTY IS THAT OF REMAINING PERSUADERS." 

/14/  IF SUCH WERE THE EXCLUSIVE REMEDY FOR VIOLATIONS OF SEC. 2
FIRST, NOT ONLY WOULD IT ENDANGER THE EFFECTIVENESS OF THE BOARD'S
MEDIATORY ROLE AND RISK PREMATURE INTERRUPTIONS OF TRANSPORTATION, BUT
IT WOULD PROVIDE NO REMEDY FOR CASES WHERE THE VIOLATIONS OF SEC. 2
FIRST OCCURRED OR FIRST BECAME APPARENT AFTER THE BOARD HAD CERTIFIED
THAT ITS MEDIATORY EFFORTS HAD FAILED. 

/15/  SEE N. 2, SUPRA, FOR THE TEST. 

/16/  SEE VIRGINIAN R. CO. V. SYSTEM FEDERATION NO. 40, 300 U.S.,AT
562-563; GRAHAM V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 338
U.S. 232, 237 (1949); BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343
U.S. 768, 774 (1952); BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO R. &
I.R. CO., 353 U.S. 30, 41-42 (1957); CF. ORDER OF RAILROAD TELEGRAPHERS
V. CHICAGO & N.W.R. CO., 362 U.S.,AT 338-339; ID., AT 360-364
(DISSENTING OPINION); TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S.
448, 458 (1957). 

/17/  THE CONGRESSIONAL DEBATES OVER THE NORRIS-LAGUARDIA ACT
SUPPORT A CONSTRUCTION OF THAT ACT PERMITTING FEDERAL COURTS TO ENJOIN
STRIKES IN VIOLATION OF THE RAILWAY LABOR ACT IN APPROPRIATE CASES. 
SEE 75 CONG.REC.  4937-4938 (SEN. BLAINE); ID., AT 5499, 5504 (REP.
LAGUARDIA). 

/18/  SECTION 2 FIRST WAS RE-ENACTED IN 1934, TWO YEARS AFTER THE
NORRIS-LAGUARDIA ACT.  ACT OF JUNE 21, 1934, C. 691, 48 STAT. 1185.  IN
THE EVENT OF IRRECONCILABLE CONFLICT BETWEEN THE POLICIES OF THE
EALIER, GENERAL PROVISIONS OF THE NORRIS-LAGUARDIA ACT AND THOSE OF THE
SUBSEQUENT, MORE SPECIFIC PROVISIONS OF SEC. 2 FIRST, THE LATTER WOULD
PREVAIL UNDER FAMILIAR PRINCIPLES OF STATUTORY CONSTRUCTION.  VIRGINIAN
R. CO. V. SYSTEM FEDERATION NO. 40, 300 U.S.,AT 563. 

/19/  SECTION 8(D) OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C.
158(D), WAS ADDED PRECISELY BECAUSE OF CONGRESSIONAL CONCERN THAT THE
NLRB HAD INTRUDED TOO DEEPLY INTO THE COLLECTIVE-BARGAINING PROCESS
UNDER THE GUISE OF ENFORCING THE DUTY TO BARGAIN IN GOOD FAITH.  SEE
NLRB V. AMERICAN NATIONAL INSURANCE CO., 343 U.S. 395 (1952); NLRB V.
INSURANCE AGENTS' INTERNATIONAL, 361 U.S. 477 (1960). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THE INSTANT DISPUTE BETWEEN THE CHICAGO & NORTH WESTERN RAILWAY
COMPANY (RAILWAY) AND THE UNITED TRANSPORTATION UNION (UNION) REACHES
BACK TO THE DECISION OF ARBITRATION BOARD NO. 282, ESTABLISHED PURSUANT
TO 77 STAT. 132 (1963).  THAT BOARD WAS ESTABLISHED BY CONGRESS, AFTER
THE FAILURE OF THE DISPUTE-SETTLEMENT MACHINERY OF THE RAILWAY LABOR
ACT, TO ARBITRATE DISPUTES BETWEEN VARIOUS CARRIERS AND UNIONS OVER THE
NUMBER OF BRAKEMEN REQUIRED ON TRAINS AND THE NECESSITY OF FIREMEN ON
DIESEL LOCOMOTIVES.  INSOFAR AS IS HERE PERTINENT, BOARD 282'S AWARD
ULTIMATELY LED TO ELIMINATION OF APPROXIMATELY 8,000 BRAKEMEN'S JOBS
ACROSS THE NATION.  BY ITS TERMS, HOWEVER, THE AWARD EXPIRED JANUARY
25, 1966.  PRIOR TO EXPIRATION, THE UNION SERVED UPON THE RAILWAY
NOTICES UNDER SEC. 6 OF THE RAILWAY LABOR ACT, 45 U.S.C. 156, /1/
WHICH CALLED FOR RE-ESTABLISHING MANY OF THE BRAKEMEN'S POSITIONS
ELIMINATED BY BOARD 282 BY CHANGING THE EXISTING AGREEMENTS TO REQUIRE
NOT LESS THAN TWO BRAKEMEN ON EVERY FREIGHT AND YARD CREW.  THE RAILWAY
RECIPROCATED BY SERVING UPON THE UNION A SEC. 6 NOTICE REQUESTING AN
AGREEMENT THAT WOULD MAKE CREW SIZE A MATTER OF MANAGERIAL JUDGMENT. 
THE PARTIES HELD CONFERENCES UNDER SEC. 6 WITHOUT REACHING AGREEMENT. 
THE NATIONAL MEDIATION BOARD ATTEMPTED TO MEDIATE THE DISPUTE PURSUANT
TO SEC. 5, 45 U.S.C. 155, /2/  FAILED, AND PROFFERED ARBITRATION
PURSUANT TO THE SAME SECTION.  AFTER THE UNION DECLINED TO ACCEPT
ARBITRATION, THE NATIONAL MEDIATION BOARD TERMINATED ITS JURISDICTION. 
SINCE NO EMERGENCY BOARD WAS APPOINTED BY THE PRESIDENT UNDER SEC. 10,
45 U.S.C. 160, /3/  AFTER THE 30-DAY COOLING-OFF PERIOD OF SEC. 5 HAD
RUN, /4/  THE ACT'S PROHIBITION AGAINST RESORT TO SELF-HELP MEASURES
LAPSED. 

THEREAFTER, THE RAILWAY BROUGHT THIS ACTION IN FEDERAL DISTRICT
COURT SEEKING AN INJUNCTION AGAINST A THREATENED STRIKE, ALLEGING THAT
THE UNION HAD NOT LIVED UP TO ITS OBLIGATION UNDER SEC. 2 FIRST, 45
U.S.C. 152 FIRST, TO "EXERT EVERY REASONABLE EFFORT" TO MAKE AND
MAINTAIN WORKING AGREEMENTS.  SPECI AGREEMENTS.  SPECIFICALLY, THE
RAILWAY ALLEGED THAT THE UNION HAD VIOLATED ITS STATUTORY DUTY IN THE
FOLLOWING WAYS: 

     "FIRST:  HAVING INSISTED IN THE FOREGOING DISPUTE UPON

  BARGAINING SEPARATELY WITH THE PLAINTIFF CARRIER INSTEAD OF

  BARGAINING JOINTLY WITH ALL THE RAILROADS UPON WHICH THE BRT

  (BROTHERHOOD OF RAILROAD TRAINMEN) HAD SEVERED LIKE NOTICES,

  NEVERTHELESS 

     "(A) THE DEFENDANT HAS REFUSED TO BARGAIN ON THE PROPOSALS IN

THE CARRIER'S COUNTER-NOTICES TO REDUCE THE SIZE OF MAIN LINE

  ROAD CREWS; 

     "(B) THE DEFENDANT HAS INSISTED THAT ANY AGREEMENT ON THE C&NW

  BE NO MORE FAVORABLE TO THE C&NEW THAN AGREEMENTS REACHED ON THE

  OTHER RAILROADS UPON WHICH THE BRT SERVED LIKE NOTICES; 

     "(C) THE DEFENDANT HAS ENTERED NEGOTIATIONS WITH A FIXED

  POSITION AND A DETERMINATION NOT TO DEVIATE FROM THE POSITION

  REGARDLESS OF WHAT RELEVANT CONSIDERATION MIGHT BE ADVANCED BY

THE C&NW; AND 

     SECOND:  NOTWITHSTANDING THE FOREGOING, THE DEFENDANT HAS

  REFUSED TO ENGAGE IN NATIONAL HANDLING OF THIS DISPUTE AND TO

  NEGOTIATE ON A JOINT BASIS A NATIONAL CREW CONSIST AGREEMENT WITH

  ALL THE RAILROADS ON WHICH THE BRT SERVED LIKE NOTICES."  APP.

  7. 

THE DISTRICT JUDGE DENIED THE INJUNCTION, HOLDING THAT "(WHETHER
THERE HAS BEEN COMPLIANCE WITH SECTION 2 FIRST . . . IS A MATTER FOR
ADMINISTRATIVE DETERMINATION . . . IS NOT JUSTICIABLE AND THIS COURT
DOES NOT HAVE JURISDICTION TO CONSIDER OR ADJUDICATE DISPUTES WITH
RESPECT TO COMPLIANCE WITH SUCH SUBSECTION.  . . . "  APP. 204-205. 
THE COURT OF APPEALS AFFIRMED, 422 F.2D 979 (CA7 1970).  WE GRANTED
CERTIORARI, 400 U.S. 818 (1970), TO RESOLVE A CONFLICT IN THE
CIRCUITS.  PIEDMONT AVIATION, INC. V. AIR LINE PILOTS ASSN., 416 F.2D
633 (CA4 1969).  I BELIEVE THAT THE RAILWAY LABOR ACT EVIDENCES A CLEAR
INTENTION TO PROHIBIT COURTS FROM WEIGHING THE RELATIVE MERITS OF EACH
PARTY'S ATTEMPTS TO REACH A BARGAINING AGREEMENT, AND THAT THE DECISION
OF THE SEVENTH CIRCUIT SHOULD, THEREFORE, BE AFFIRMED. 

THIS CASE PRESENTS THE QUESTION WHETHER, IN A MAJOR DISPUTE, A
DISTRICT COURT MAY ENJOIN SELF-HELP MEASURES AFTER THE COMPLETION OF
THE STATUTORY PROCEDURES IF IT DETERMINES THAT A PARTY HAS NOT MADE
"EVERY REASONABLE EFFORT" TO REACH AGREEMENT AS REQUIRED BY SEC. 2
FIRST.  UNDERLYING THIS QUESTION IS THE COROLLARY ONE, TO WHAT EXTENT A
DISTRICT COURT MAY INQUIRE INTO COLLECTIVE NEGOTIATIONS IN DETERMINING
WHETHER A PARTY HAS COMPLIED WITH ITS STATUTORY DUTY. 

IN ANSWERING THESE QUESTIONS PARTICULAR ATTENTION MUST BE PAID TO
THE LEGISLATIVE HISTORY OF THE ACT.  RAILWAY LABOR DISPUTE-SETTLEMENT
LAW HAS UNDERGONE A LONG LEGISLATIVE EVOLUTION WHICH THIS COURT HAS
PREVIOUSLY EXPLORED.  INTERNATIONAL ASSOCIATION OF MACHINISTS V.
STREET, 367 U.S. 740, 750-760, AND NN. 10-12 (1961); SEE ALSO TEXAS &
N.O.R. CO. V. BROTHERHOOD OF RAILWAY CLERKS, 281 U.S. 548 (1930);
VIRGINIAN R. CO. V. SYSTEM REDERATION NO. 40, 300 U.S. 515 (1937);
UNION PACIFIC R. CO. V. PRICE, 360 U.S. 601 (1959); DETROIT & T.S.L.R.
CO. V. UNITED TRANSPORTATION UNION, 396 U.S. 142 (1969).  MUCH OF THE
EXPERIMENTATION PRIOR TO PASSAGE OF THE RAILWAY LABOR ACT OF 1926
PROVED UNSUCCESSFUL.  RECOGNITION THAT GROWING UNREST IN THE RAILWAY
INDUSTRY HAD CREATED A SITUATION WITH POTENTIALLY GRAVE PUBLIC
CONSEQUENCES, LED THE PRESIDENT, IN THREE MESSAGES TO CONGRESS BETWEEN
1923 AND 1925, AND BOTH THE REPUBLICAN AND DEMOCRATIC PARTIES, IN 1924,
TO CALL FOR UNPRECEDENTED COOPERATION BETWEEN CARRIERS AND UNIONS. 
H.R. REP. NO. 328, 69TH CONG., 1ST SESS., 2-3 (1926); S. REP. NO. 606,
69TH CONG., 1ST SESS., 2-3 (1926); HEARINGS ON RAILROAD LABOR DISPUTES
(H.R. 7180) BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, 69TH CONG., 1ST SESS., 21-22, 90, 98, 197 (1926) (HEREINAFTER
HEARINGS).  THESE BASICALLY ANTAGONISTIC FORCES WERE URGED TO SIT DOWN
AND DEVELOP A WORKABLE SOLUTION FOR SETTLING DISPUTES IN THEIR INDUSTRY
IN ORDER TO MINIMIZE THE RUPTURE OF THE PUBLIC SERVICES THAT THEY
PROVIDED.  THE LEGISLATIVE PRODUCT DEVISED BY THE PARTIES THEMSELVES,
WHICH CONGRESS ENACTED IN 1926 AS THE RAILWAY LABOR ACT, 44 STAT. 577,
WAS A UNIQUE BLEND OF MORAL AND LEGAL DUTIES LOOKING TOWARD SETTLEMENT
THROUGH CONCILIATION, MEDIATION, VOLUNTARY ARBITRATION, PRESIDENTIAL
INTERVENTION, AND FINALLY, IN CASE OF ULTIMATE FAILURE OF THE STATUTORY
MACHINERY, RESORT TO TRADITIONAL SELF-HELP MEASURES.  THE COOPERATION
INVOLVED WAS UNPARALLELED IN THIS COUNTRY'S LABOR HISTORY.  IT WAS FELT
SIGNIFICANT TO ALL INVOLVED THAT THE PARTIES THEMSELVES HAD WORKED OUT
A SOLUTION AND HAD PRESENTED IT TO CONGRESS.  /5/  THE SIGNIFICANCE LAY
IN THE FACT THAT SINCE THE BILL REPRESENTED "THE AGREEMENT OF THE
PARTIES . . . THEY WILL BE UNDER THE MORAL OBLIGATION TO SEE THAT THEIR
AGREEMENT ACCOMPLISHES ITS PURPOSE, AND THAT IF ENACTED INTO LAW THEY
WILL DESIRE TO PROVE THE LAW A SUCCESS."  HEARINGS 21. 

THE OUTSTANDING FEATURE OF THE BILL WAS THAT IT WAS VOLUNTARY--
CONGRESS, THE CARRIERS, AND THE UNIONS ALL RECOGNIZED THAT THERE WERE
VERY FEW ENFORCEABLE PROVISIONS, AND STILL FEWER JUDICIALLY ENFORCEABLE
ONES.  /6/  IN TESTIMONY BEFORE CONGRESS, MR. RICHBERG, THE MAJOR
SPOKESMAN FOR THE UNIONS, STATED, "(OUR THOUGHT HAS BEEN IN THIS LAW
NOT TO WRITE A LOT OF STATUTE LAW FOR THE COURTS TO ENFORCE.  . . . WE
EXPECT THAT MOST OF THE PROVISIONS OF THIS BILL ARE TO BE ENFORCED BY
THE POWER OF PERSUASION, EITHER EXERCISED BY THE PARTIES THEMSELVES OR
BY THE GOVERNMENT BOARD OF MEDIATION REPRESENTING THE PUBLIC
INTEREST."  HEARINGS 65-66.  CONGRESS RECOGNIZED THE ABSENCE OF
COERCIVE MEASURES BUT CHOSE NOT TO ADD THEM, NOTING THAT "IT IS IN THE
PUBLIC INTEREST TO PERMIT A FAIR TRIAL OF THE METHOD OF AMICABLE
ADJUSTMENT AGREED UPON BY THE PARTIES.  . . ."  S. REP. NO. 606, 69TH
CONG., 1ST SESS., 4 (1926).  THUS, THE HISTORY OF THE ACT REVEALS THAT
IN DEALING WITH MAJOR DISPUTES CONGRESS WAS CONTENT TO ENACT A
MACHINERY WHICH DRAGGED ON, WITH COOLING-OFF PERIODS AND VARIOUS STATUS
QUO RESTRICTIONS, WHILE THE PARTIES WERE REQUIRED TO "TREAT WITH" ONE
ANOTHER, SEC. 2 NINTH, 45 U.S.C. 152 NINTH, IN THE HOPE THAT ULTIMATELY
THEY WOULD VOLUNTARILY REACH AGREEMENT. 

IN ORDER TO BRING ABOUT SETTLEMENT, IT WAS MADE "THE DUTY OF ALL
CARIERS . . . AND EMPLOYEES TO EXERT EVERY REASONABLE EFFORT TO MAKE
AND MAINTAIN AGREEMENTS . . . IN ORDER TO AVOID ANY INTERRUPTION TO
COMMERCE.  . . ."  SEC. 2 FIRST, 45 U.S.C. 152 FIRST.  FROM THE OUTSET,
CONGRESS WAS INTERESTED IN THE MEANING OF THIS PROVISION AND WHETHER
THIS STATUTORY DUTY WAS VIEWED BY THE DRAFTERS TO BE A JUDICIALLY
ENFORCEABLE ONE.  DURING THE HEARINGS ON THE HOUSE BILL THE FOLLOWING
COLLOQUY OCCURRED: 

"MR. HUDDLESTON.  NOW, REFERRING TO SECTION 2 ON PAGE 3, ('IT

  SHALL BE THE DUTY OF ALL CARRIERS, THEIR OFFICERS, AGENTS, AND

  EMPLOYEES, TO EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN

  AGREEMENTS,' ETC.  DO YOU AGREE THAT THAT ALSO IS UNENFORCEABLE

  BY JUDICIAL PROCEEDING? 

"MR. RICHBERG.  NOT ALWAYS.  I THINK ANY ACTION INVOLVING AN

  ARBITRARY REFUSAL TO COMPLY WITH THAT DUTY MIGHT BE SUBJECT TO

  JUDICIAL COMPULSION.  I AM SURE IT WOULD WORK BOTH WAYS. 

        .          .          .          . 

  "IN OTHER WORDS, I THINK IT WOULD NOT BE EXERTING A REASONABLE

  EFFORT TO MAKE AND MAINTAIN AGREEMENTS, FOR A CARRIER OR ITS

  APPROPRIATE OFFICERS TO REFUSE TO EVEN MEET A COMMITTEE THAT

  SOUGHT TO MAKE AN AGREEMENT. 

.          .          .          . 

     "MR. HUDDLESTON.  YOU THINK, THEN, THAT THIS SECTION IS
ENFORCEABLE? 

"MR. RICHBERG.  I THINK THAT A DUTY IMPOSED BY LAW IS

ENFORCEABLE BY JUDICIAL POWER, YES.  OF COURSE, THIS IS NOT A

  DUTY WHICH COULD BE ENFORCED IN A VERY ABSOLUTE WAY, BECAUSE IT

  IS A DUTY TO EXERT EVERY REASONABLE EFFORT.  IN OTHER WORDS, ALL

  THAT COULD BE ENFORCED BY THE COURT WOULD BE AN ORDER AGAINST AN

  ARBITRARY REFUSAL TO EVEN ATTEMPT TO COMPLY WITH THAT DUTY, BUT I

  BELIEVE THAT COULD BE SUBJECT TO JUDICIAL POWER."  HEARINGS

  84-85. 

IN RESPONSE TO AN EARLIER QUESTION MR. RICHBERG HAD TESTIFIED: 

   " . . . IN THE FIRST PLACE, I THINK IF EITHER PARTY SHOWED A

  WILLFUL DISREGARD OF THE FUNDAMENTAL REQUIREMENTS, THAT THEY

  SHOULD MAKE EVERY REASONABLE EFFORT TO MAKE AN AGREEMENT-- IN

  OTHER WORDS, IF THEY REFUSE ABSOLUTELY TO CONFER, TO MEET OR

  DISCUSS OR NEGOTIATE, I THINK THERE IS A QUESTION AS TO WHETHER

  THERE MIGHT NOT BE INVOKED SOME JUDICIAL COMPULSION, BUT I WOULD

  RATHER SEE THAT LEFT TO DEVELOPMENT RATHER THAN SEE IT WRITTEN

  INTO THE LAW.  BUT OUTSIDE OF THAT, IF THE PARTIES DO NOT MAKE AN

  AGREEMENT, I THINK YOU FACE THIS QUESTION, FIRST, AS TO WHETHER

  THE GOVERNMENT BOARD OF MEDIATION COULD BRING THEM TO SEE THE

  ERROR OF THEIR WAYS; AND, SECOND, IF THAT EFFORT WAS

  UNSUCCESSFUL, WHETHER THEY COULD BRING THEM TO REFER THAT DISPUTE

  TO AN ARBITRATION, AND THEN IF IT WAS OF SUFFICIENT MAGNITUDE SO

  THAT IT ACTUALLY AFFECTED COMMERCE SUBSTANTIALLY, WHETHER THE

  EMERGENCY BOARD COULD NOT ITSELF BRING ABOUT AN ADJUSTMENT." 

  HEARINGS 66. 

SINCE THE ACT WAS THE PRODUCT OF MONTHS OF DISCUSSION BETWEEN THE
CARRIERS AND UNIONS AND SINCE MR. RICHBERG'S TESTIMONY WAS
UNCONTRADICTED BY THE REPRESENTATIVES OF THE CARRIERS, /7/  IT SEEMS
FAIR TO SAY THAT THE ABOVE TESTIMONY EVIDENCES AN UNDERSTANDING ON THE
PART OF THE UNIONS, CARRIERS, AND CONGRESS THAT THE DUTY "TO EXERT
EVERY REASONABLE EFFORT" WAS JUDICIALLY ENFORCEABLE AT LEAST TO THE
EXTENT REQUIRING THE PARTIES TO SIT DOWN AT THE BARGAINING TABLE AND
TALK TO EACH OTHER.  THIS IS EXACTLY WHAT THIS COURT HELD IN VIRGINIAN
R. CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515 (1937).  THAT CASE WAS
AN EQUITABLE ACTION BROUGHT BY THE FEDERATION TO FORCE THE RAILWAY TO
BARGAIN WITH IT.  THE CARRIER, DESPITE THE MEDIATION BOARD'S
CERTIFICATION OF THE FEDERATION AS THE BARGAINING AGENT OF THE
EMPLOYEES, HAD CONTINUED TO DEAL ONLY WITH ITS COMPANY UNION.  THIS
COURT HELD THAT THE DUTY TO EXERT EVERY REASONABLE EFFORT TO REACH
AGREEMENT, WHICH HAD BEEN HELD TO BE WITHOUT LEGAL SANCTION IN THE
CONTEXT OF THE PREVIOUS ACT, PENNSYLVANIA R. CO. V. LABOR BOARD, 261
U.S. 72 (1923), 

"NO LONGER STANDS) ALONE AND UNAIDED BY MANDATORY PROVISION.  . . .
THE AMENDMENT OF THE RAILWAY LABOR ACT ADDED NEW PROVISIONS IN SEC. 2,
NINTH, WHICH MAKES IT THE DUTY OF THE MEDIATION BOARD, WHEN ANY DISPUTE
ARISES AMONG THE CARRIER'S EMPLOYEES, 'AS TO WHO ARE THE
REPRESENTATIVES OF SUCH EMPLOYEES,'  TO INVESTIGATE THE DISPUTE AND TO
CERTIFY . . . THE NAME OF THE ORGANIZATION AUTHORIZED TO REPRESENT THE
EMPLOYEES.  IT COMMANDS THAT 'UPON RECEIPT OF SUCH CERTIFICATION THE
CARRIER SHALL TREAT WITH THE REPRESENTATIVES SO CERTIFIED AS THE
REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES OF THIS ACT.' 

     "IT IS, WE THINK, NOT OPEN TO DOUBT THAT CONGRESS INTENDED
THAT

  THIS REQUIREMENT BE MANDATORY UPON THE RAILROAD EMPLOYER, AND

  THAT ITS COMMAND, IN A PROPER CASE, BE ENFORCED BY THE COURTS." 

300 U.S.,AT 544-545. 

"(WE CANNOT ASSUME THAT ITS (SEC. 2 NINTH'S) ADDITION TO THE

  STATUTE WAS PURPOSELESS.  . . . THE STATUTE DOES NOT UNDERTAKE TO

  COMPEL AGREEMENT BETWEEN THE EMPLOYER AND EMPLOYEES, BUT IT DOES

  COMMAND THOSE PRELIMINARY STEPS WITHOUT WHICH NO AGREEMENT CAN BE

  REACHED.  IT AT LEAST REQUIRES THE EMPLOYER TO MEET AND CONFER

  WITH THE AUTHORIZED REPRESENTATIVE OF ITS EMPLOYEES, TO LISTEN TO

  THEIR COMPLAINTS, TO MAKE REASONABLE EFFORT TO COMPOSE

  DIFFERENCES-- IN SHORT, TO ENTER INTO A NEGOTIATION FOR THE

  SETTLEMENT OF LABOR DISPUTES SUCH AS IS CONTEMPLATED BY SEC. 2,

FIRST."  ID., AT 547-548. 

VIRGINIAN R. CO. STANDS, THEN, FOR THE PROPOSITION THAT, ONCE THE BOARD
HAS CERTIFIED A UNION AS THE BARGAINING AGENT OF THE EMPLOYEES, A COURT
MAY REQUIRE THE EMPLOYER TO "TREAT WITH" THAT REPRESENTATIVE IN ORDER
THAT THE STATUTORY MACHINERY OF THE RAILWAY LABOR ACT BE GIVEN A CHANCE
TO BRING ABOUT A VOLUNTARY SETTLEMENT.  IT IS, IN ESSENCE, AN ORDER FOR
THE PARTIES TO RECOGNIZE ONE ANOTHER AND BEGIN THE LONG, DRAWN-OUT
STATUTORY BARGAINING PROCESS. 

IN THE YEARS SINCE VIRGINIAN R. CO. THIS COURT, IN THE CONTEXT OF A
MAJOR DISPUTE, HAS AUTHORIZED THE ISSUANCE OF AN INJUNCTION IN ONLY TWO
OTHER CAREFULLY LIMITED CLASSES OF RAILWAY LITIGATION-- THAT SEEKING TO
PREVENT INVIDIOUS DISCRIMINATION ON THE PART OF A UNION AS AGAINST
EMPLOYEES AND THAT SEEKING TO PREVENT VIOLATION OF THE ACT'S STATUS QUO
PROVISIONS DURING BARGAINING.  IN A SERIES OF CASES BEGINNING WITH
STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192 (1944), /8/  THIS COURT
HAS HELD THAT "THE LANGUAGE OF THE ACT TO WHICH WE HAVE REFERRED (SECS.
1 SIXTH; 2 SECOND, THIRD, FOURTH, AND NINTH), READ IN THE LIGHT OF THE
PURPOSES OF THE ACT, EXPRESSES THE AIM OF CONGRESS TO IMPOSE ON THE
BARGAINING REPRESENTATIVE OF A CRAFT OR CLASS OF EMPLOYEES THE DUTY TO
EXERCISE FAIRLY THE POWER CONFERRED UPON IT IN BEHALF OF ALL THOSE FOR
WHOM IT ACTS, WITHOUT HOSTILE DISCRIMINATION AGAINST THEM."  ID., AT
202-203.  RECENTLY, IN DETROIT & T.S.L.R. CO. V. UNITED TRANSPORTATION
UNION, 396 U.S. 142 (1969), THIS COURT HELD THAT THE ACT'S STATUS QUO
REQUIREMENT, WHICH "IS CENTRAL TO ITS DESIGN," COULD BE ENFORCED BY
JUDICIAL AUTHORITY.  ID., AT 150.  WHILE IN EACH OF THESE INSTANCES THE
COURT FOUND SPECIFIC, POSITIVE STATUTORY MANDATES FOR JUDICIAL
INTERFERENCE, THE UNDERLYING COHESIVENESS OF THE DECISIONS LIES IN THE
FACT THAT IN EACH INSTANCE THE SCHEME OF THE RAILWAY LABOR ACT COULD
NOT BEGIN TO WORK WITHOUT JUDICIAL INVOLVEMENT.  THAT IS, UNLESS THE
UNIONS FAIRLY REPRESENTED ALL OF THEIR EMPLOYEES; UNLESS THE EMPLOYER
BARGAINED WITH THE CERTIFIED REPRESENTATIVE OF THE EMPLOYEES; UNLESS
THE STATUS QUO WAS MAINTAINED DURING THE ENTIRE RANGE OF BARGAINING,
THE STATUTORY MECHANISM COULD NOT HOPE TO INDUCE A NEGOTIATED
SETTLEMENT.  IN EACH CASE THE JUDICIAL INVOLVEMENT WAS MINIMAL AND IN
KEEPING WITH THE CENTRAL THEME OF THE ACT-- TO BRING ABOUT VOLUNTARY
SETTLEMENT.  IN EACH CASE THE "COLLECTIVE BARGAINING AGENTS STEPPED
OUTSIDE THEIR LEGAL DUTIES AND VIOLATED THE ACT WHICH CALLED THEM INTO
BEING.  . . ."  ORDER OF RAILROAD TELEGRAPHERS V. CHICAGO & N.W.R. CO.,
362 U.S. 330, 338 (1960). 

IN THE INSTANT CASE, WE HAVE AN ENTIRELY DIFFERENT SITUATION.  HERE,
ALL PARTIES WERE FAIRLY REPRESENTED, THE STATUS QUO WAS BEING
MAINTAINED, AND, MOST IMPORTANT, EACH BARGAINING REPRESENTATIVE MET AND
CONFERRED WITH HIS COUNTERPART.  THE STEP-BY-STEP PROCEDURES PRESCRIBED
BY THE RAILWAY LABOR ACT HAD BEEN CARRIED THROUGH.  IN ESSENCE, THE
COURT HOLDS THAT A DISTRICT COURT HAS THE DUTY UNDER SEC. 2 FIRST, TO
ASSESS THE BARGAINING TACTICS OF EACH OF THE PARTIES AFTER THE ENTIRE
STATUTORY SCHEME HAS RUN ITS COURSE.  IF, THEN, THE COURT DETERMINES
THAT A PARTY HAD NOT EXERTED SUFFICIENT EFFORT TO REACH SETTLEMENT, IT
SHOULD ENJOIN SELF-HELP MEASURES, AND, IF SUCH ACTION IS TO MAKE ANY
SENSE WITHIN THIS STATUTORY SCHEME, REMAND THE PARTIES TO SOME
UNSPECIFIED POINT IN THE BARGAINING PROCESS.  SUCH A NOTION IS ENTIRELY
CONTRARY TO THE CAREFULLY CONSTRUCTED PREMISE OF THE RAILWAY LABOR
ACT. 

MY SUMMARY OF THE LEGISLATIVE HISTORY OF THE ACT CLEARLY DISCLOSES
THAT JUDICIAL INVOLVEMENT IN THE RAILWAY BARGAINING PROCESS WAS TO BE
MINUSCULE SINCE THE ENTIRE FOCUS OF THE ACT WAS TOWARD ACHIEVING A
VOLUNTARY SETTLEMENT BETWEEN THE PROTAGONISTS.  "THE RAILWAY LABOR ACT,
LIKE THE NATIONAL LABOR RELATIONS ACT, DOES NOT UNDERTAKE GOVERNMENTAL
REGULATION OF WAGES, HOURS, OR WORKING CONDITIONS.  INSTEAD IT SEEKS TO
PROVIDE A MEANS BY WHICH AGREEMENT MAY BE REACHED WITH RESPECT TO
THEM."  TERMINAL ASSN. V. BROTHERHOOD OF RAILROAD TRAINMEN, 318 U.S. 1,
6 (1943) (FOOTNOTE OMITTED).  IT IS CLEAR TO ME THAT THE DUTY TO EXERT
EVERY REASONABLE EFFORT WAS AGREED UPON TO MAKE EFFECTIVE THE DUTY OF
THE CARRIER TO RECOGNIZE THE UNION CHOSEN BY THE EMPLOYEES-- IN OTHER
WORDS, IT IS ESSENTIALLY A COROLLARY OF THE DUTY.  SUCH A DUTY DOES NOT
CONTEMPLATE THAT GOVERNMENTAL POWER SHOULD, AFTER FAILURE OF THE
PARTIES TO REACH ACCORD, BE ADDED TO THE SCALES IN FAVOR OF EITHER
PARTY AND THUS COMPEL THE OTHER TO AGREE UPON THE AIDED PARTY'S TERMS. 
RATHER, AT THAT POINT, IMPASSE WAS TO FREE BOTH PARTIES TO RESORT TO
SELF-HELP.  SEE NLRB V. INSURANCE AGENTS' INTERNATIONAL, 361 U.S. 477,
484-486 (1960).  AS MR. RICHBERG HAD TESTIFIED, "I WISH TO STRESS THAT
ONE POINT ABOVE ALL OTHERS.  WE ARE SEEKING AN OPPORTUNITY TO PRESERVE
SELF-GOVERNMENT IN INDUSTRY.  . . . WE ARE NOT ASKING THE GOVERNMENT TO
USE FORCE AGAINST ONE OR THE OTHER PARTY.  WE ARE SIMPLY ASKING AID AND
COOPERATION."  HEARINGS 22. 

EVEN APART FROM WHAT THE DRAFTERS OF THE ACT REPRESENTING BOTH SIDES
SPECIFICALLY CONTEMPLATED, THE RESULT REACHED TODAY WILL DESTROY
ENTIRELY THE CAREFULLY PLANNED SCHEME OF THE ACT.  THE ACT IS BUILT
UPON A STEP-BY-STEP FRAMEWORK.  EACH STEP IS CAREFULLY DRAWN TO
INTRODUCE SLIGHTLY DIFFERENT PRESSURES UPON THE PARTIES TO REACH
SETTLEMENT FROM THE PRECEDING STEP.  FIRST, THE PARTIES CONFER
JOINTLY.  NEXT, THE NATIONAL MEDIATION BOARD MAY ADD ITS PRESSURE
THROUGH MEDIATION.  THEN, THE PRESIDENT MAY CALL INTO EFFECT BOTH THE
GREAT POWER OF HIS OFFICE AND THAT OF INFORMED PUBLIC OPINION THROUGH
THE CREATION OF AN EMERGENCY BOARD.  UNDERLYING THE ENTIRE STATUTORY
FRAMEWORK IS THE PRESSURE BORN OF THE KNOWLEDGE THAT IN THE FINAL
INSTANCE TRADITIONAL SELF-HELP ECONOMIC PRESSURE MAY BE BROUGHT TO BEAR
IF THE STATUTORY MECHANISM DOES NOT PRODUCE AGREEMENT.  THE ACT DOES
NOT EVIDENCE AN INTENTION TO RETURN TO ANY STEP ONCE COMPLETED.  THE
COURT'S DECISION WILL EFFECTIVELY DESTROY THE SCHEME OF GRADUALLY
ESCALATING PRESSURES.  MOREOVER, THE COURT PROVIDES ABSOLUTELY NO
GUIDANCE AS TO WHERE IN THE BARGAINING SCHEME THE PARTIES ARE TO BE
REMANDED.  DOES THE COURT SEND THEM BACK TO THE MEDIATION BOARD WHICH
HAS ALREADY TERMINATED JURISDICTION FINDING THE PARTIES TO HAVE REACHED
IMPASSE?  SHOULD THE COURT REMAND TO SOME OTHER PHASE OF THE
PROCEEDINGS?  IF SO, WHERE? 

MORE IMPORTANT, HOWEVER, IS THE MORTAL WOUND TODAY'S HOLDING
INFLICTS ON THE CRITICAL ROLE TO BE PLAYED BY THE PRESENCE OF ECONOMIC
WEAPONS IN RESERVE.  NLRB V. INSURANCE AGENT'S INTERNATIONAL, SUPRA, AT
488-489.  AS THE STATUTORY MACHINERY NEARS TERMINATION WITHOUT
ACHIEVING SETTLEMENT, THE THREAT OF ECONOMIC SELF-HELP AND THE
PRESSURES OF INFORMED PUBLIC OPINION CREATE NEW IMPETUS TOWARD
COMPROMISE AND AGREEMENT.  IF SELF-HELP CAN NOW EFFECTIVELY BE THWARTED
BY INJUNCTION AND BY DRAWN-OUT COURT PROCEEDINGS AFTER THE TERMINATION
OF THE ENTIRE BARGAINING PROCESS, OR WORSE YET, AT EACH STEP THEREOF,
THE THREAT OF ITS USE BECOMES IMPOTENT, INDEED. 

SINCE THERE IS NO SPECIFIC MANDATE FOR AN INJUNCTION IN THE
CIRCUMSTANCES PRESENTED BY THIS CASE, THE MORE GENERAL PROVISIONS OF
THE NORRIS-LAGUARDIA ACT ARE APPLICABLE.  VIRGINIAN R. CO. V. SYSTEM
FEDERATION NO. 40, 300 U.S.,AT 563; BROTHERHOOD OF RAILROAD TRAINMEN V.
CHICAGO R. & I.R. CO., 353 U.S. 30, 40-41 (1957). 

"THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C. 101-115, EXPRESSES
A BASIC POLICY AGAINST THE INJUNCTION OF ACTIVITIES OF LABOR UNIONS. 
WE HAVE HELD THAT THE ACT DOES NOT DEPRIVE THE FEDERAL COURTS OF
JURISDICTION TO ENJOIN COMPLIANCE WITH VARIOUS MANDATES OF THE RAILWAY
LABOR ACT.  VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515; GRAHAM
V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 338 U.S. 232. 
HOWEVER, THE POLICY OF THE ACT SUGGESTS THAT THE COURTS SHOULD HESITATE
TO FIX UPON THE INJUNCTIVE REMEDY FOR BREACHES OF DUTY OWING UNDER THE
LABOR LAWS UNLESS THAT REMEDY ALONE CAN EFFECTIVELY GUARD THE
PLAINTIFF'S RIGHT."  INTERNATIONAL ASSOCIATION OF MACHINISTS V. STREET,
367 U.S.,AT 772-773. 

MY CONCLUSION, THEN, IS THAT THE RAILWAY LABOR ACT AS DESIGNED BY
ITS COFRAMERS AND AS ENFORCED BY THIS COURT EXCLUDES ANY ROLE FOR THE
JUDICIARY TO OVERSEE THE RELATIVE EFFORTS OF THE PARTIES IN THEIR
MUTUAL ATTEMPT TO REACH SETTLEMENT.  A COURT MAY ORDER THE PARTIES TO
RECOGNIZE ONE ANOTHER AND SIT DOWN TO BARGAIN, BUT UPON FAILURE OF THE
STATUTORY MACHINERY TO INDUCE SETTLEMENT, THE JUDICIARY IS DENIED POWER
TO ENJOIN RESORT TO TRADITIONAL SELF-HELP MEASURES.  IF THIS SCHEME HAS
PROVED INEFFECTIVE, CONGRESS, NOT THIS COURT, MUST REDRESS THE
DEFICIENCIES. 

I WOULD AFFIRM. 

/1/  SECTION 6 PROVIDES IN PART: 

"CARRIERS AND REPRESENTATIVES OF THE EMPLOYEES SHALL GIVE AT LEAST
THIRTY DAYS' WRITTEN NOTICE OF AN INTENDED CHANGE IN AGREEMENTS
AFFECTING RATES OF PAY, RULES, OR WORKING CONDITIONS.  . . ." 

/2/  SECTION 5 FIRST, PROVIDES IN PART: 

"THE PARTIES, OR EITHER PARTY, TO A DISPUTE BETWEEN AN EMPLOYEE OR
GROUP OF EMPLOYEES AND A CARRIER MAY INVOKE THE SERVICES OF THE
MEDIATION BOARD IN ANY OF THE FOLLOWING CASES: 

"(A) A DISPUTE CONCERNING CHANGES IN RATES OF PAY, RULES, OR WORKING
CONDITIONS NOT ADJUSTED BY THE PARTIES IN CONFERENCE. 

        .          .          .          . 

"THE MEDIATION BOARD MAY PROFFER ITS SERVICES IN CASE ANY LABOR
EMERGENCY IS FOUND BY IT TO EXIST AT ANY TIME. 

"IN EITHER EVENT THE SAID BOARD SHALL PROMPTLY PUT ITSELF IN
COMMUNICATION WITH THE PARTIES TO SUCH CONTROVERSY, AND SHALL USE ITS
BEST EFFORTS, BY MEDIATION, TO BRING THEM TO AGREEMENT.  IF SUCH
EFFORTS . . . SHALL BE UNSUCCESSFUL, THE SAID BOARD SHALL AT ONCE
ENDEAVOR AS ITS FINAL REQUIRED ACTION . . . TO INDUCE THE PARTIES TO
SUBMIT THEIR CONTROVERSY TO ARBITRATION, IN ACCORDANCE WITH THE
PROVISIONS OF THIS CHAPTER." 

/3/  SECTION 10 PROVIDES IN PART: 

"IF A DISPUTE BETWEEN A CARRIER AND ITS EMPLOYEES BE NOT ADJUSTED
UNDER THE FOREGOING PROVISIONS OF THIS CHAPTER AND SHOULD, IN THE
JUDGMENT OF THE MEDIATION BOARD, THREATEN SUBSTANTIALLY TO INTERRUPT
INTERSTATE COMMERCE TO A DEGREE SUCH AS TO DEPRIVE ANY SECTION OF THE
COUNTRY OF ESSENTIAL TRANSPORTATION SERVICE, THE MEDIATION BOARD SHALL
NOTIFY THE PRESIDENT, WHO MAY THEREUPON, IN HIS DISCRETION, CREATE A
BOARD TO INVESTIGATE AND REPORT RESPECTING SUCH DISPUTE.  . . .

        .     .          .          . 

"AFTER THE CREATION OF SUCH BOARD AND FOR THIRTY DAYS AFTER SUCH
BOARD HAS MADE ITS REPORT TO THE PRESIDENT, NO CHANGE, EXCEPT BY
AGREEMENT, SHALL BE MADE BY THE PARTIES TO THE CONTROVERSY IN THE
CONDITIONS OUT OF WHICH THE DISPUTE AROSE." 

/4/  SECTION 5 FIRST, PROVIDES IN PART: 

"IF ARBITRATION AT THE REQUEST OF THE BOARD SHALL BE REFUSED BY ONE
OR BOTH PARTIES, THE BOARD SHALL AT ONCE NOTIFY BOTH PARTIES IN WRITING
THAT ITS MEDIATORY EFFORTS HAVE FAILED AND FOR THIRTY DAYS THEREAFTER,
UNLESS IN THE INTERVENING PERIOD THE PARTIES AGREE TO ARBITRATION, OR
AN EMERGENCY BOARD SHALL BE CREATED UNDER SECTION 160 OF THIS TITLE, NO
CHANGE SHALL BE MADE IN THE RATES OF PAY, RULES, OR WORKING CONDITIONS
OR ESTABLISHED PRACTICES IN EFFECT PRIOR TO THE TIME THE DISPUTE
AROSE." 

/5/  "MR. RICHBERG: . . . THIS BILL WHICH HAS BEEN INTRODUCED IN THE
HOUSE AND IN THE SENATE SIMULTANEOUSLY REPRESENTS THE PRODUCT OF MONTHS
OF NEGOTIATIONS AND CONFERENCES BETWEEN THE REPRESENTATIVES OF 20
RAILROAD LABOR ORGANIZATIONS AND THE ASSOCIATION OF RAILWAY EXECUTIVES
REPRESENTATIVES, REPRESENTING THE GREAT MAJORITY, PRACTICALLY ALL, OF
THE CARRIERS BY RAILROAD."  HEARINGS 9. 

"I WANT TO EMPHASIZE AGAIN THAT THIS BILL IS THE PRODUCT OF A
NEGOTIATION BETWEEN EMPLOYERS AND EMPLOYEES WHICH IS UNPARALLELED, I
BELIEVE, IN THE HISTORY OF AMERICAN INDUSTRIAL RELATIONS. 

"FOR THE FIRST TIME REPRESENTATIVES OF A GREAT MAJORITY OF ALL THE
EMPLOYERS AND ALL THE EMPLOYEES OF ONE INDUSTRY CONFERRED FOR SEVERAL
MONTHS FOR THE PURPOSE OF CREATING BY AGREEMENT A MACHINERY FOR THE
PEACEFUL AND PROMPT ADJUSTMENT OF BOTH MAJOR AND MINOR DISAGREEMENTS
THAT MIGHT IMPAIR THE EFFICIENCY OF OPERATIONS OR INTERRUPT THE SERVICE
THEY RENDER TO THE COMMUNITY.  THEY ARE NOW ASKING TO HAVE THIS
AGREEMENT WRITTEN INTO LAW, NOT FOR THE PURPOSE OF HAVING GOVERNMENTAL
POWER EXERTED TO COMPEL THE PARTIES TO DO RIGHT BUT IN ORDER TO OBTAIN
GOVERNMENT AID IN THEIR COOPERATIVE EFFORTS AND IN ORDER TO ASSURE THE
PUBLIC THAT THEIR INTEREST IN EFFICIENT CONTINUOUS TRANSPORTATION
SERVICE WILL BE PERMANENTLY PROTECTED. 

        .          .          .          . 

"IT IS A REMARKABLE FACT THAT ALL PARTIES CONCERNED WERE ABLE TO LAY
ASIDE THE HOSTILE FEELINGS AND SUSPICIONS THAT HAD TOO OFTEN
CHARACTERIZED PAST NEGOTIATIONS AND TO ACT UPON THE BELIEF THAT IF AN
AGREEMENT WERE REACHED, IT WOULD BE CARRIED OUT IN THE SAME SPIRIT OF
GOOD FAITH AND FAIR DEALING THAT CHARACTERIZED THE NEGOTIATIONS." 
HEARINGS 21-22. 

/6/  MR. THOM (CARRIER REPRESENTATIVE).  "I WISH YOU TO BEAR THAT
FACT IN MIND-- THE MORAL OBLIGATION NOW RESTING UPON EACH ONE OF THE
PROPONENTS OF THIS BILL IN RESPECT TO ITS EFFECT UPON THE PUBLIC
INTEREST.  SUPPOSE IT IS CHANGED IN ANY IMPORTANT PARTICULAR, WHAT
EFFECT WILL THAT HAVE UPON THE MORAL OBLIGATION TO WHICH I HAVE JUST
ALLUDED?  . . . 

"I PERSONALLY ATTACH MOST SUBSTANTIAL IMPORTANCE TO THE VIEW I AM
NOW ASKING YOU TO CONSIDER.  I THINK THAT WHEN A MEASURE IS ADOPTED,
BACKED BY THE MORAL OBLIGATION OF THE PARTIES THAT IT WILL NOT BE
PERMITTED IN ANY DEGREE TO (AFFECT ADVERSELY THE PUBLIC INTERESTS, IT
WOULD BE A MOST UNWISE THING TO INSERT MEASURES OF COERCION, SUBSTITUTE
PRINCIPLES, OR ANYTHING THAT WOULD HAVE THE EFFECT OF LIBERATING THESE
PARTIES FROM THE POSITION THEY HAVE VOLUNTARILY ASSUMED BEFORE YOU,
THAT THIS IS A WORKABLE MEASURE."  HEARINGS 115. 

/7/  CARRIER REPRESENTATIVES WERE PRESENT THROUGHOUT THE
CONGRESSIONAL TESTIMONY OF MR. RICHBERG.  NONE CONTRADICTED MR.
RICHBERG'S VIEWPOINT IN THEIR TESTIMONY. 

/8/  SEE ALSO TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN, 323 U.S. 210 (1944); GRAHAM V. BROTHERHOOD OF LOCOMOTIVE
FIREMEN & ENGINEMEN, 338 U.S. 232 (1949); BROTHERHOOD OF RAILROAD
TRAINMEN V. HOWARD, 343 U.S. 768 (1952). 

WILLIAM H. DEMPSEY, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM
ON THE BRIEFS WERE DAVID BOOTH BEERS AND RICHARD M. FREEMAN. 

JOHN H. HALEY, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS JOHN J. MAUGHTON. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FIELD A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :






NLRB V. NATURAL GAS UTILITY DISTRICT, 402 U.S. 600 


       NATIONAL LABOR RELATIONS BOARD V. NATURAL GAS UTILITY

           DISTRICT OF HAWKINS COUNTY, TENNESSEE

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 785.  ARGUED APRIL 20, 1971.-- DECIDED JUNE 1, 1971 


IN THIS UNFAIR LABOR PRACTICE PROCEEDING UNDER THE LABOR MANAGEMENT
RELATIONS ACT RESPONDENT CONTENDED THAT IT WAS NOT AN "EMPLOYER" BUT
CAME WITHIN THE "POLITICAL SUBDIVISION" EXEMPTION IN SEC. 2(2) OF THE
ACT.  THE NATIONAL LABOR RELATIONS BOARD (NLRB) HAD FOUND THAT
RESPONDENT MET NEITHER OF THE TESTS TO WHICH IT HELD THAT EXEMPTION WAS
LIMITED, VIZ., ENTITIES THAT ARE EITHER (1) CREATED DIRECTLY BY THE
STATE, SO AS TO CONSTITUTE GOVERNMENTAL DEPARTMENTS OR ADMINISTRATIVE
ARMS, OR (2) ADMINISTERED BY INDIVIDUALS WHO ARE RESPONSIBLE TO PUBLIC
OFFICIALS OR THE GENERAL ELECTORATE.  THE COURT OF APPEALS UPHELD
RESPONDENT'S CONTENTION, VIEWING AS CONTROLLING A TENNESSEE SUPREME
COURT DECISION CONSTRUING THE STATE'S UTILITY DISTRICT LAW UNDER WHICH
RESPONDENT HAD BEEN ORGANIZED.  A DISTRICT ORGANIZED UNDER THAT STATUTE
IS A "'MUNICIPALITY' OR PUBLIC CORPORATION," HAS EMINENT DOMAIN POWERS,
IS EXEMPT FROM STATE, COUNTY, OR MUNICIPAL TAXATION, AND WHOSE INCOME
FROM ITS BONDS IS EXEMPT FROM FEDERAL INCOME TAX.  THE OFFICERS WHO
CONDUCT THE DISTRICT'S BUSINESS RECEIVE NOMINAL COMPENSATION, ARE
APPOINTED BY A PUBLIC OFFICIAL, AND ARE SUBJECT TO REMOVAL BY STATUTORY
PROCEDURES APPLICABLE TO PUBLIC OFFICIALS.  HELD: 

1.  FEDERAL, RATHER THAN STATE, LAW GOVERNS THE DETERMINATION
WHETHER AN ENTITY IS A "POLITICAL SUBDIVISION" OF A STATE WITHIN THE
MEANING OF SEC. 2(2) OF THE LABOR MANAGEMENT RELATIONS ACT.  NLRB V.
RANDOLPH ELECTRIC MEMBERSHIP CORP., 343 F.2D 60.  PP. 602-604. 

2.  WHILE THE NLRB'S CONSTRUCTION OF THE STATUTORY TEMR IS ENTITLED
TO GREAT RESPECT, THERE IS NO "WARRANT IN THE RECORD" AND "NO
REASONABLE BASIS IN LAW" FOR THE NLRB'S CONCLUSION THAT RESPONDENT WAS
NOT A POLITICAL SUBDIVISION.  IN THE LIGHT OF ALL THE FACTORS PRESENT
HERE, INCLUDING THE FACT THAT THE DISTRICT IS ADMINISTERED BY
INDIVIDUALS WHO ARE RESPONSIBLE TO PUBLIC OFFICIALS (THUS MEETING EVEN
ONE OF THE TESTS USED BY THE NLRB), RESPONDENT COMES WITHIN THE
COVERAGE OF THAT STATUTORY EXEMPTION.  PP. 604-609. 

427 F.2D 312, AFFIRMED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, DOUGLAS, HARLAN, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  STEWART, J., FILED A DISSENTING OPINION, POST, P. 609. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

UPON THE PETITION OF PLUMBERS AND STEAMFITTERS LOCAL 102, THE
NATIONAL LABOR RELATIONS BOARD ORDERED THAT A REPRESENTATION ELECTION
BE HELD AMONG THE PIPEFITTERS EMPLOYED BY RESPONDENT, NATURAL GAS
UTILITY DISTRICT OF HAWKINS COUNTY, TENNESSEE, 167 N.L.R.B. 691
(1967).  IN THE REPRESENTATION PROCEEDING, RESPONDENT OBJECTED TO THE
BOARD'S JURISDICTION ON THE SOLE GROUND THAT AS A "POLITICAL
SUBDIVISION" OF TENNESSEE, IT WAS NOT AN "EMPLOYER" SUBJECT TO BOARD
JURISDICTION UNDER SEC. 2(2) OF THE NATIONAL LABOR RELATIONS ACT, 1947,
61 STAT. 137, 29 U.S.C. 152(2).  /1/  WHEN THE UNION WON THE ELECTION
AND WAS CERTIFIED BY THE BOARD AS BARGAINING REPRESENTATIVE OF THE
PIPEFITTERS, RESPONDENT REFUSED TO COMPLY WITH THE BOARD'S
CERTIFICATION AND RECOGNIZE AND BARGAIN WITH THE UNION.  AN UNFAIR
LABOR PRACTICE PROCEEDING RESULTED AND THE BOARD ENTERED A CEASE-AND
DESIST ORDER AGAINST RESPONDENT ON FINDINGS THAT RESPONDENT WAS IN
VIOLATION OF SECS. 8(A)(1) AND 8(A)(5) OF THE ACT, 29 U.S.C. 158(A)(1)
AND 158(A)(5).  170 N.L.R.B. 1409 (1968).  RESPONDENT CONTINUED ITS
NONCOMPLIANCE AND THE BOARD SOUGHT ENFORCEMENT OF THE ORDER IN THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT.  ENFORCEMENT WAS REFUSED, THE
COURT HOLDING THAT RESPONDENT WAS A "POLITICAL SUBDIVISION," AS
CONTENDED.  427 F.2D 312 (1970).  WE GRANTED CERTIORARI, 400 U.S. 990
(1971).  WE AFFIRM. 

THE RESPONDENT WAS ORGANIZED UNDER TENNESSEE'S UNTILITY DISTRICT LAW
OF 1937, TENN. CODE ANN. SECS. 6-2601 TO 6-2627 (1955).  IN FIRST
SUBURBAN WATER UTILITY DISTRICT V. MCCANLESS, 177 TENN. 128, 146 S.W.2D
948 (1941), THE TENNESSEE SUPREME COURT HELD THAT A UTILITY DISTRICT
ORGANIZED UNDER THIS ACT WAS AN OPERATION FOR A STATE GOVERNMENTAL OR
PUBLIC PURPOSE.  THE COURT OF APPEALS HELD THAT THIS DECISION "WAS OF
CONTROLLING IMPORTANCE ON THE QUESTION WHETHER THE DISTRICT WAS A
POLITICAL SUBDIVISION OF THE STATE" WITHIN SEC. 2(2) AND "WAS BINDING
ON THE BOARD."  427 F.2D,AT 315.  THE BOARD, ON THE OTHER HAND, HAD
HELD THAT "WHILE SUCH STATE LAW DECLARATIONS AND INTERPRETATIONS ARE
GIVEN CAREFUL CONSIDERATION . . . , THEY ARE NOT NECESSARILY
CONTROLLING."  167 N.L.R.B.,AT 691.  WE DISAGREE WITH THE COURT OF
APPEALS AND AGREE WITH THE BOARD.  FEDERAL, RATHER THAN STATE, LAW
GOVERNS THE DETERMINATION, UNDER SEC. 2(2), WHETHER AN ENTITY CREATED
UNDER STATE LAW IS A "POLITICAL SUBDIVISION" OF THE STATE AND THEREFORE
NOT AN "EMPLOYER" SUBJECT TO THE ACT.  /2/ 

THE COURT OF APPEALS FOR THE FOURTH CIRCUIT DEALT WITH THIS QUESTION
IN NLRB V. RANDOLPH ELECTRIC MEMBERSHIP CORP., 343 F.2D 60 (1965),
WHERE THE BOARD HAD DETERMINED THAT RANDOLPH ELECTRIC WAS NOT A
"POLITICAL SUBDIVISION" WITHIN SEC. 2(2).  WE ADOPT AS CORRECT LAW WHAT
WAS SAID AT 62-63 OF THE OPINION IN THAT CASE: 

"THERE ARE, OF COURSE, INSTANCES IN WHICH THE APPLICATION OF

  CERTAIN FEDERAL STATUTES MAY DEPEND ON STATE LAW.  . . . 

     "BUT THIS IS CONTROLLED BY THE WILL OF CONGRESS.  IN THE

  ABSENCE OF A PLAIN INDICATION TO THE CONTRARY, HOWEVER, IT IS TO

  BE ASSUMED WHEN CONGRESS ENACTS A STATUTE THAT IT DOES NOT INTEND

  TO MAKE ITS APPLICATION DEPENDENT ON STATE LAW.  JEROME V. UNITED

  STATES, 318 U.S. 101, 104 . . . (1943). 

     "THE ARGUMENT OF THE ELECTRIC CORPORATIONS FAILS TO PERSUADE
US

  THAT CONGRESS INTENDED THE RESULT FOR WHICH THEY CONTEND. 

  FURTHERMORE, IT IGNORES THE TEACHINGS OF THE SUPREME COURT AS TO

  THE CONGRESSIONAL PURPOSE IN ENACTING THE NATIONAL LABOR LAWS. 

  IN NATIONAL LABOR RELATIONS BOARD V. HEARST PUBLICATIONS, 322

U.S. 111, 123 . . . (1944), THE COURT DEALTH WITH THE MEANING OF

  THE TERM 'EMPLOYEE' AS USED IN THE WAGNER ACT, SAYING: 

     "'BOTH THE TERMS AND THE PURPOSES OF THE STATUTE, AS WELL AS

  THE LEGISLATIVE HISTORY, SHOW THAT CONGRESS HAD IN MIND NO . . .

  PATCHWORK PLAN FOR SECURING FREEDOM OF EMPLOYEES'  ORGANIZATION

  AND OF COLLECTIVE BARGAINING.  THE WAGNER ACT IS FEDERAL

  LEGISLATION, ADMINISTERED BY A NATIONAL AGENCY, INTENDED TO SOLVE

  A NATIONAL PROBLEM ON A NATIONAL SCALE.  . . . NOTHING IN THE

  STATUTE'S BACKGROUND, HISTORY, TERMS OR PURPOSES INDICATES ITS

  SCOPE IS TO BE LIMITED BY . . . VARYING LOCAL CONCEPTIONS, EITHER

  STATUTORY OR JUDICIAL, OR THAT IT IS TO BE ADMINISTERED IN

  ACCORDANCE WITH WHATEVER DIFFERENT STANDARDS THE RESPECTIVE

  STATES MAY SEE FIT TO ADOPT FOR THE DISPOSITION OF UNRELATED,

  LOCAL PROBLEMS.' 

     "THUS, IT IS CLEAR THAT STATE LAW IS NOT CONTROLLING AND THAT

  IT IS TO THE ACTUAL OPERATIONS AND CHARACTERISTICS OF

  (RESPONDENTS) THAT WE MUST LOOK IN DECIDING WHETHER THERE IS

  SUFFICIENT SUPPORT FOR THE BOARD'S CONCLUSION THAT THEY ARE NOT

'POLITICAL SUBDIVISIONS' WITHIN THE MEANING OF THE NATIONAL LABOR

  RELATIONS ACT." 

WE TURN THEN TO IDENTIFICATION OF THE GOVERNING FEDERAL LAW.  THE
TERM "POLITICAL SUBDIVISION" IS NOT DEFINED IN THE ACT AND THE ACT'S
LEGISLATIVE HISTORY DOES NOT DISCLOSE THAT CONGRESS EXPLICITLY
CONSIDERED ITS MEANING.  THE LEGISLATIVE HISTORY DOES REVEAL, HOWEVER,
THAT CONGRESS ENACTED THE SEC. 2(2) EXEMPTION TO EXCEPT FROM BOARD
COGNIZANCE THE LABOR RELATIONS OF FEDERAL, STATE, AND MUNICIPAL
GOVERNMENTS, SINCE GOVERNMENTAL EMPLOYEES DID NOT USUALLY ENJOY THE
RIGHT TO STRIKE.  /3/  IN THE LIGHT OF THAT PURPOSE, THE BOARD,
ACCORDING TO ITS BRIEF, P. 11, "HAS LIMITED THE EXEMPTION FOR POLITICAL
SUBDIVISIONS TO ENTITIES THAT ARE EIGHER (1) CREATED DIRECTLY BY THE
STATE, SO AS TO CONSTITUTE DEPARTMENTS OR ADMINISTRATIVE ARMS OF THE
GOVERNMENT, OR (2) ADMINISTERED BY INDIVIDUALS WHO ARE RESPONSIBLE TO
PUBLIC OFFICIALS OR TO THE GENERAL ELECTORATE." 

THE BOARD'S CONSTRUCTION OF THE BROAD STATUTORY TERM IS, OF COURSE,
ENTITLED TO GREAT RESPECT.  RANDOLPH ELECTRIC, SUPRA, AT 62.  THIS CASE
DOES NOT HOWEVER REQUIRE THAT WE DECIDE WHETHER "THE ACTUAL OPERATIONS
AND CHARACTERISTICS" OF AN ENTITY MUST NECESSARILY FEATURE ONE OR THE
OTHER OF THE BOARD'S LIMITATIONS TO QUALIFY AN ENTITY FOR THE
EXEMPTION, FOR WE THINK THAT IT IS PLAIN ON THE FACE OF THE TENNESSEE
STATUTE THAT THE BOARD ERRED IN ITS READING OF IT IN LIGHT OF THE
BOARD'S OWN TEST.  THE BOARD FOUND THAT "THE EMPLOYER IN THIS CASE IS
NEITHER CREATED DIRECTLY BY THE STATE, NOR ADMINISTERED BY STATE
APPOINTED OR ELECTED OFFICIALS."  167 N.L.R.B.,AT 691-692 (FOOTNOTES
OMITTED).  BUT THE BOARD TEST IS NOT WHETHER THE ENTITY IS ADMINISTERED
BY "STATE-APPOINTED OR ELECTED OFFICIALS."  RATHER, ALTERNATIVE (2) OF
THE TEST IS WHETHER THE ENTITY IS "ADMINISTERED BY INDIVIDUALS WHO ARE
RESPONSIBLE TO PUBLIC OFFICIALS OR TO THE GENERAL ELECTORATE", AND THE
TENNESSEE STATUTE MAKES CRYSTAL CLEAR THAT RESPONDENT IS ADMINISTERED
BY A BOARD OF COMMISSIONERS APPOINTED BY AN ELECTED COUNTY JUDGE, AND
SUBJECT TO REMOVAL PROCEEDINGS AT THE INSTANCE OF THE GOVERNOR, THE
COUNTY PROSECUTOR, OR PRIVATE CITIZENS.  THEREFORE, IN THE LIGHT OF
OTHER "ACTUAL OPERATIONS AND CHARACTERISTICS" UNDER THAT
ADMINISTRATION, THE BOARD'S HOLDING THAT RESPONDENT "EXISTS AS AN
ESSENTIALLY PRIVATE VENTURE, WITH INSUFFICIENT IDENTITY WITH OR
RELATIONSHIP TO THE STATE OF TENNESSEE," 167 N.L.R.B.,AT 691, HAS NO
"WARRANT IN THE RECORD" AND NO "REASONABLE BASIS IN LAW."  NLRB V.
HEARST PUBLICATIONS, 322 U.S. 111, 131 (1944). 

RESPONDENT IS ONE OF NEARLY 270 UTILITY DISTRICTS ESTABLISHED UNDER
THE UTILITY DISTRICT LAW OF 1937.  UNDER THAT STATUTE, TENNESSEE
RESIDENTS MAY CREATE DISTRICTS TO PROVIDE A WIDE RANGE OF PUBLIC
SERVICES SUCH AS THE FURNISHING OF WATER, SEWERS, SEWAGE DISPOSAL,
POLICE PROTECTION, FIRE PROTECTION, GARBAGE COLLECTION, STREET
LIGHTING, PARKS, AND RECREATIONAL FACILITIES AS WELL AS THE
DISTRIBUTION OF NATURAL GAS.  TENN. CODE ANN. SEC. 6-2608 (SUPP.
1970).  ACTING UNDER THE STATUTE, 38 OWNERS OF REAL PROPERTY SUBMITTED
IN 1957 A PETITION TO THE COUNTY COURT OF HAWKINS COUNTY REQUESTING THE
INCORPORATION OF A UTILITY DISTRICT TO DISTRIBUTE NATURAL GAS WITHIN A
SPECIFIED PORTION OF THE COUNTY.  THE COUNTY JUDGE, AFTER HOLDING A
REQUIRED PUBLIC HEARING AND MAKING REQUIRED FINDINGS THAT THE "PUBLIC
CONVENIENCE AND NECESSITY REQUIRES THE CREATION OF THE DISTRICT," AND
THAT "THE CREATION OF THE DISTRICT IS ECONOMICALLY SOUND AND
DESIRABLE," TENN. CODE ANN. SEC. 6-2604 (SUPP. 1970), ENTERED AN ORDER
ESTABLISHING THE DISTRICT.  THE JUDGE'S ORDER AND FINDINGS WERE
APPEALABLE TO TENNESSEE'S APPELLATE COURTS BY ANY PARTY "HAVING AN
INTEREST IN THE SUBJECT-MATTER."  TENN. CODE ANN. SEC. 6-2606 (1955). 

TO CARRY OUT ITS FUNCTIONS, THE DISTRICT IS GRANTED NOT ONLY ALL THE
POWERS OF A PRIVATE CORPORATION, TENN. CODE ANN. SEC. 6-2610 (1955),
BUT ALSO "ALL THE POWERS NECESSARY AND REQUISITE FOR THE ACCOMPLISHMENT
OF THE PURPOSE FOR WHICH SUCH DISTRICT IS CREATED, CAPABLE OF BEING
DELEGATED BY THE LEGILSATURE."  TENN. CODE ANN. SEC. 6-2612 (1955). 
THIS DELEGATION INCLUDES THE POWER OF EMINENT DOMAIN, WHICH THE
DISTRICT MAY EXERCISE EVEN AGAINST OTHER GOVERNMENTAL ENTITIES.  TENN.
CODE ANN. SEC. 6-2611 (1955).  THE DISTRICT IS OPERATED ON A NONPROFIT
BASIS, AND IS DECLARED BY THE STATUTE TO BE "A MUNICIPALITY'  OR PUBLIC
CORPORATION IN PERPETUITY UNDER ITS CORPORATE NAME AND THE SAME SHALL
IN THAT NAME BE A BODY POLITIC AND CORPORATE WITH POWER OF PERPETUAL
SUCCESSION, BUT WITHOUT ANY POWER TO LEVY OR COLLECT TAXES."  TENN.
CODE ANN. SEC. 6-2607 (SUPP. 1970).  THE PROPERTY AND REVENUE OF THE
DISTRICT ARE EXEMPTED FROM ALL STATE, COUNTY, AND MUNICIPAL TAXES, AND
THE DISTRICT'S BONDS ARE SIMILARLY EXEMPT FROM SUCH TAXATION, EXCEPT
FOR INHERITANCE, TRANSFER, AND ESTATE TAXES.  TENN. CODE ANN. SEC. 6
2626 (1955). 

THE DISTRICT'S RECORDS ARE "PUBLIC RECORDS" AND AS SUCH OPEN FOR
INSPECTION.  TENN. CODE ANN. SEC. 6-2615 (SUPP. 1970).  THE DISTRICT IS
REQUIRED TO PUBLISH ITS ANNUAL STATEMENT IN A NEWSPAPER OF GENERAL
CIRCULATION, SHOWING ITS FINANCIAL CONDITION, ITS EARNINGS, AND ITS
METHOD OF SETTING RATES.  TENN. CODE ANN. SEC. 6-2617 (SUPP. 1970). 
THE STATUTE REQUIRES THE DISTRICT'S COMMISSIONERS TO HEAR ANY PROTEST
TO ITS RATES FILED WITHIN 30 DAYS OF PUBLICATION OF THE ANNUAL
STATEMENT AT A PUBLIC HEARING, AND TO MAKE AND TO PUBLISH WRITTEN
FINDINGS AS TO THE REASONABLENESS OF THE RATES.  TENN. CODE ANN. SEC. 6
2618 (1955).  THE COMMISSIONERS' DETERMINATION MAY BE CHALLENGED IN THE
COUNTY COURT, UNDER PROCEDURES PRESCRIBED BY THE STATUTE.  IBID. 

THE DISTRICT'S COMMISSIONERS ARE INITIALLY APPOINTED, FROM AMONG
PERSONS NOMINATED IN THE PETITION, BY THE COUNTY JUDGE, WHO IS AN
ELECTED PUBLIC OFFICIAL.  TENN. CODE ANN. SEC. 6-2604 (SUPP. 1970). 
THE COMMISSIONERS SERVE FOUR-YEAR TERMS /4/  AND, CONTRARY TO THE
BOARD'S FINDING THAT THE STATE RESERVES NO "POWER TO REMOVE OR
OTHERWISE DISCIPLINE THOSE RESPONSIBLE FOR THE EMPLOYER'S OPERATIONS,"
167 N.L.R.B.,AT 692, ARE SUBJECT TO REMOVAL UNDER TENNESSEE'S GENERAL
OUSTER LAW, WHICH PROVIDES PROCEDURES FOR REMOVING PUBLIC OFFICIALS
FROM OFFICE FOR MISFEASANCE OR NONFEASANCE.  TENN. CODE ANN. SEC. 8
2701 ET SEQ. (1955); FIRST SUBURBAN WATER UTILITY DISTRICT V.
MCCANLESS, 177 TENN.,AT 138, 146 S.W.2D, AT 952.  PROCEEDINGS UNDER THE
LAW MAY BE INITIATED BY THE GOVERNOR, THE STATE ATTORNEY GENERAL, THE
COUNTY PROSECUTOR, OR TEN CITIZENS.  TENN. CODE ANN. SECS. 8-2708, 8
2709, 8-2710 (1955).  WHEN A VACANCY OCCURS, THE COUNTY JUDGE APPOINTS
A NEW COMMISSIONER IF THE REMAINING TWO COMMISSIONERS CANNOT AGREE UPON
A REPLACEMENT.  TENN. CODE ANN. SEC. 6-2614 (SUPP. 1970).  IN LARGE
COUNTIES, ALL VACANCIES ARE FILLED BY POPULAR ELECTION.  IBID.  THE
COMMISSIONERS ARE GENERALLY EMPOWERED TO CONDUCT THE DISTRICT'S
BUSINESS.  THEY HAVE THE POWER TO SUBPOENA WITNESSES AND TO ADMINISTER
OATHS IN INVESTIGATING DISTRICT AFFAIRS, TENN. CODE ANN. SEC. 6-2616(5)
(1955), AND THEY SERVE FOR ONLY NOMINAL COMPENSATION.  TENN. CODE ANN.
SEC. 6-2615 (SUPP. 1970).  PLAINLY, COMMISSIONERS WHO ARE BEHOLDEN TO
AN ELECTED PUBLIC OFFICIAL FOR THEIR APPOINTMENT, AND ARE SUBJECT TO
REMOVAL PROCEDURES APPLICABLE TO ALL PUBLIC OFFICIALS, QUALIFY AS
"INDIVIDUALS WHO ARE RESPONSIBLE TO PUBLIC OFFICIALS OR TO THE GENERAL
ELECTORATE"  WITHIN THE BOARD'S TEST. 

IN SUCH CIRCUMSTANCES, THE BOARD ITSELF HAS RECOGNIZED THAT
AUTHORITY TO EXERCISE THE POWER OF EMINENT DOMAIN WEIGHS IN FAVOR OF
FINDING AN ENTITY TO BE A POLITICAL SUBDIVISION.  NEW JERSEY TURNPIKE
AUTHORITY, 33 L.R.R.M. 1528 (1954).  WE HAVE NOTED THAT RESPONDENT'S
POWER OF EMINENT DOMAIN MAY BE EXERCISED EVEN AGAINST OTHER
GOVERNMENTAL UNITS.  AND THE DISTRICT IS FURTHER GIVEN AN EXTREMELY
BROAD GRANT OF "ALL THE POWERS NECESSARY AND REQUISITE FOR THE
ACCOMPLISHMENT OF THE PURPOSE FOR WHICH SUCH DISTRICT IS CREATED,
CAPABEL OF BEING DELEGATED BY THE LEGISLATURE."  TENN. CODE ANN. SEC. 6
2612 (1955).  THE DISTRICT'S "PUBLIC RECORDS" REQUIREMENT AND THE
AUTOMATIC RIGHT TO A PUBLIC HEARING AND WRITTEN "DECISION" BY THE
COMMISSIONERS ACCORDED TO ALL USERS BETOKEN A STATE, RATHER THAN A
PRIVATE, INSTRUMENTALITY.  THE COMMISSIONERS' POWER OF SUBPOENA AND
THEIR NOMINAL COMPENSATION FURTHER SUGGEST THE PUBLIC CHARACTER OF THE
DISTRICT.     MOREOVER, A CONCLUSION THAT THE DISTRICT IS A POLITICAL
SUBDIVISION FINDS SUPPORT IN THE TREATMENT OF THE DISTRICT UNDER OTHER
FEDERAL LAWS.  INCOME FROM ITS BONDS IS EXEMPT FROM FEDERAL INCOME TAX,
AS INCOME FROM AN OBLIGATION OF A "POLITICAL SUBDIVISION" UNDER 26
U.S.C. 103.  SOCIAL SECURITY BENEFITS FOR THE DISTRICT'S EMPLOYEES ARE
PROVIDED THROUGH VOLUNTARY RATHER THAN MANDATORY COVERAGE SINCE THE
DISTRICT IS CONSIDERED A POLITICAL SUBDIVISION UNDER THE SOCIAL
SECURITY ACT.  42 U.S.C. 418. 

RESPONDENT IS THEREFORE AN ENTITY "ADMINISTERED BY INDIVIDUALS (THE
COMMISSIONERS) WHO ARE RESPONSIBLE TO PUBLIC OFFICIALS (AN ELECTED
COUNTY JUDGE)" AND THIS TOGETHER WITH THE OTHER FACTORS MENTIONED
SATISFIES US THAT ITS RELATIONSHIP TO THE STATE IS SUCH THAT RESPONDENT
IS A "POLITICAL SUBDIVISION" WITHIN THE MEANING OF SEC. 2(2) OF THE
ACT.  ACCORDINGLY, THE COURT OF APPEALS' JUDGMENT DENYING ENFORCEMENT
OF THE BOARD'S ORDER IS

             AFFIRMED. 

/1/  SECTION 2(2), 29 U.S.C. 152(2), PROVIDES: 

"THE TERM 'EMPLOYER' INCLUDES ANY PERSON ACTING AS AN AGENT OF AN
EMPLOYER, DIRECTLY OR INDIRECTLY, BUT SHALL NOT INCLUDE THE UNITED
STATES OR ANY WHOLLY OWNED GOVERNMENT CORPORATION, OR ANY FEDERAL
RESERVE BANK, OR ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
CORPORATION OR ASSOCIATION OPERATING A HOSPITAL, IF NO PART OF THE NET
EARNINGS INSURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER OR
INDIVIDUAL, OR ANY PERSON SUBJECT TO THE RAILWAY LABOR ACT, AS AMENDED
FROM TIME TO TIME, OR ANY LABOR ORGANIZATION (OTHER THAN WHEN ACTING AS
AN EMPLOYER), OR ANYONE ACTING IN THE CAPACITY OF OFFICER OR AGENT OF
SUCH LABOR ORGANIZATION." 

/2/  RESPONDENT AGREES IN ITS BRIEF IN THIS COURT, P. 13, THAT STATE
LAW IS NOT CONTROLLING. 

/3/  SEE 78 CONG.REC.  10351 ET SEQ.; HEARINGS ON LABOR DISPUTES ACT
BEFORE THE HOUSE COMMITTEE ON LABOR, 74TH CONG., 1ST SESS., 179; 93
CONG.REC.  6441 (SEN. TAFT).  SEE ALSO C. RHYNE, LABOR UNIONS AND
MUNICIPAL EMPLOYEE LAW 436-437 (1946).  VOGEL, WHAT ABOUT THE RIGHTS OF
THE PUBLIC EMPLOYEE?, 1 LAB.L.J. 604, 612-615 (1950). 

/4/  THE COMMISSIONERS' INITIAL TERMS ARE STAGGERED, WITH ONE
COMMISSIONER APPOINTED TO A TWO-YEAR TERM, ONE TO A THREE-YEAR TERM,
AND ONE TO A FOUR-YEAR TERM.  TENN. CODE ANN. SEC. 6-2604 (SUPP.
1970). 

MR. JUSTICE STEWART, DISSENTING. 

I AGREE WITH THE COURT THAT FEDERAL, RATHER THAN STATE, LAW GOVERNS
THE DETERMINATION OF WHETHER AN EMPLOYER IS A "POLITICAL SUBDIVISION"
OF THE STATE WITHIN THE MEANING OF SEC. 2(2) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, 29 U.S.C. 152(2).  BUT I CANNOT AGREE THAT
THE BOARD ERRED IN THIS CASE IN CONCLUDING THAT THE RESPONDENT IS NOT
ENTITLED TO EXEMPTIONS UNDER THE ACT. 

IN DETERMINING THAT THE RESPONDENT UTILITY IDSTRICT WAS NOT A
"POLITICAL SUBDIVISION" OF THE STATE, THE BOARD FOLLOWED ITS SETTLED
POLICY OF WEIGHING ALL RELEVANT FACTORS, WITH PARTICULAR EMPHASIS HERE
ON THE CIRCUMSTANCES THAT THE DISTRICT IS NEITHER "CREATED DIRECTLY BY
THE STATE" NOR "ADMINISTERED BY STATE-APPOINTED OR ELECTED OFFICIALS"
AND IS "AUTONOMOUS IN THE CONDUCT OF ITS DAY-TO-DAY AFFAIRS."  ON THE
OTHER SIDE, THE BOARD GAVE LESS WEIGHT TO THE STATE'S CHARACTERIZATION
OF A UTILITY DISTRICT AS AN ARM OF THE STATE FOR PURPOSES OF EXEMPTION
FROM STATE TAXES AND CONFERRAL OF THE POWER OF EMINENT DOMAIN. 

THIS APPROACH SEEMS WHOLLY ACCEPTABLE TO ME, INASMUCH AS STATE TAX
EXEMPTION AND THE POWER OF EMINENT DOMAIN ARE NOT ATTRIBUTES PECULIAR
TO POLITICAL SUBDIVISIONS NOR ATTRIBUTES WITH ANY DISCERNIBLE IMPACT ON
LABOR RELATIONS.  ATTIRBUTES WHICH WOULD IMPLICATE LABOR POLICY, SUCH
AS THE PAYMENT OF WAGES OUT OF PUBLIC FUNDS OR RESTRICTIONS UPON THE
RIGHT OF THE EMPLOYEES TO STRIKE, ARE NOT PRESENT HERE. 

THE COURT POINTS TO PROVISIONS THAT THE RECORDS OF THE DISTRICT BE
AVAILABLE FOR PUBLIC INSPECTION, AND THAT THE COMMISSIONERS OF THE
DISTRICT HOLD HEARINGS AND MAKE WRITTEN FINDINGS.  THESE FACTORS ARE
SAID TO "BETOKEN A STATE, RATHER THAN A PRIVATE, INSTRUMENTALITY."  THE
QUESTION, HOWEVER, IS NOT WHETHER THE DISTRICT IS A STATE
INSTRUMENTALITY, BUT WHETHER IT IS A "POLITICAL SUBDIVISION" OF THE
STATE.  AND THE PROVISIONS IN QUESTION HARDLY GO TO THAT ISSUE. 

THE BOARD'S REASONABLE CONSTRUCTION OF THE ACT IS ENTITLED TO GREAT
WEIGHT AND IT IS NOT OUR FUNCTION TO WEIGH THE FACTS DE NOVO AND
DISPLACE ITS EVALUATION WITH OUR OWN.  THE BOARD HERE HAS MADE A
REASONED DECISION WHICH DOES NO VIOLENCE TO THE PURPOSES OF THE ACT. 
ACCORDINGLY, I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND THE CASE WITH INSTRUCTIONS TO ENFORCE THE BOARD'S ORDER. 

DOMINICK L. MANOLI ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, PETER L. STRAUSS, ARNOLD ORDMAN,
AND NORTON J. COME. 

EUGENE GREENER, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 

CHARLES F. WHEATLEY, JR., AND JEROME C. MUYS FILED A BRIEF FOR THE
AMERICAN PUBLIC GAS ASSOCIATION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :














COATES V. CITY OF CINCINNATI, 402 U.S. 611 


       COATES ET AL. V. CITY OF CINCINNATI

        APPEAL FROM THE SUPREME COURT OF OHIO

        NO. 117.  ARGUED JANUARY 11, 1971-- DECIDED JUNE 1, 1971 


CINCINNATI, OHIO, ORDINANCE MAKING IT A CRIMINAL OFFENSE FOR "THREE
OR MORE PERSONS TO ASSEMBLE . . . ON ANY OF THE SIDEWALKS . . . AND
THERE CONDUCT THEMSELVES IN A MANNER ANNOYING TO PERSONS PASSING BY . .
. ," WHICH HAS NOT BEEN NARROWED BY ANY CONSTRUCTION OF THE OHIO
SUPREME COURT, HELD VIOLATIVE ON ITS FACE OF THE DUE PROCESS STANDARD
OF VAGUENESS AND THE CONSTITUTIONAL RIGHT OF FREE ASSEMBLY AND
ASSOCIATION.  PP. 614-616. 

21 OHIO ST.2D 66, 255 N.E.2D 247, REVERSED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
HARLAN, BRENNAN, AND MARSHALL, JJ., JOINED.  BLACK, J., FILED A
SEPARATE OPINION, POST, P. 616.  WHITE, J., FILED A DISSENTING OPINION,
IN WHICH BURGER, C.J., AND BLACKMUN, J., JOINED, POST, P. 617. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

A CINCINNATI, OHIO, ORDINANCE MAKES IT A CRIMINAL OFFENSE FOR "THREE
OR MORE PERSONS TO ASSEMBLE . . . ON ANY OF THE SIDEWALKS . . . AND
THERE CONDUCT THEMSELVES IN A MANNER ANNOYING TO PERSONS PASSING BY. .
. ."  /1/  THE ISSUE BEFORE US IS WHETHER THIS ORDINANCE IS
UNCONSTITUTIONAL ON ITS FACE. 

THE APPELLANTS WERE CONVICTED OF VIOLATING THE ORDINANCE, AND THE
CONVICTIONS WERE ULTIMATELY AFFIRMED BY A CLOSELY DIVIDED VOTE IN THE
SUPREME COURT OF OHIO, UPHOLDING THE CONSTITUTIONAL VALIDITY OF THE
ORDINANCE.  21 OHIO ST.2D 66, 255 N.E.2D 247.  AN APPEAL FROM THAT
JUDGMENT WAS BROUGHT HERE UNDER 28 U.S.C. 1257(2), /2/  AND WE NOTED
PROBABLE JURISDICTION, 398 U.S. 902.  THE RECORD BROUGHT BEFORE THE
REVIEWING COURTS TELLS US NO MORE THAN THAT THE APPELLANT COATES WAS A
STUDENT INVOLVED IN A DEMONSTRATION AND THE OTHER APPELLANTS WERE
PICKETS INVOLVED IN A LABOR DISPUTE.  FOR THROUGHOUT THIS LITIGATION IT
HAS BEEN THE APPELLANTS' POSITION THAT THE ORDINANCE ON ITS FACE
VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION.  CF.
TIMES FILM CORP. V. CHICAGO, 365 U.S. 43. 

IN REJECTING THIS CLAIM AND AFFIRMING THE CONVICTIONS THE OHIO
SUPREME COURT DID NOT GIVE THE ORDINANCE ANY CONSTRUCTION AT VARIANCE
WITH THE APPARENT PLAIN IMPORT OF ITS LANGUAGE.  THE COURT SIMPLY
STATED: 

     "THE ORDINANCE PROHIBITS, INTER ALIA, 'CONDUCT . . . ANNOYING

  TO PERSONS PASSING BY.'  THE WORD 'ANNOYING' IS A WIDELY USED AND

  WELL UNDERSTOOD WORD; IT IS NOT NECESSARY TO GUESS ITS MEANING. 

  'ANNOYING' IS THE PRESENT PARTICIPLE OF THE TRANSITIVE VERB

  'ANNOY' WHICH MEANS TO TROUBLE, TO VEX, TO IMPEDE, TO INCOMMODE,

  TO PROVOKE, TO HARASS OR TO IRRITATE. 

     "WE CONCLUDE, AS DID THE SUPREME COURT OF THE UNITED STATES IN

  CAMERON V. JOHNSON, 390 U.S. 611, 616, IN WHICH THE ISSUE OF THE

  VAGUENESS OF A STATUTE WAS PRESENTED, THAT THE ORDINANCE 'CLEARLY

  AND PRECISELY DELINEATES ITS REACH IN WORDS OF COMMON

  UNDERSTANDING.  IT IS A "PRECISE AND NARROWLY DRAWN REGULATORY

  STATUTE (ORDINANCE) EVINCING A LEGISLATIVE JUDGMENT THAT CERTAIN

SPECIFIC CONDUCT BE . . . PROSCRIBED."'"  21 OHIO ST.2D, AT 69,

  255 N.E.2D, AT 249. 

BEYOND THIS, THE ONLY CONSTRUCTION PUT UPON THE ORDINANCE BY THE
STATE COURT WAS ITS UNEXPLAINED CONCLUSION THAT "THE STANDARD OF
CONDUCT WHICH IT SPECIFIES IS NOT DEPENDENT UPON EACH COMPLAINANT'S
SENSITIVITY."  IBID.  BUT THE COURT DID NOT INDICATE UPON WHOSE
SENSITIVITY A VIOLATION DOES DEPEND-- THE SENSITIVITY OF THE JUDGE OR
JURY, THE SENSITIVITY OF THE ARRESTING OFFICER, OR THE SENSITIVITY OF A
HYPOTHETICAL REASONABLE MAN.  /3/ 

WE ARE THUS RELEGATED, AT BEST, TO THE WORDS OF THE ORDINANCE
ITSELF.  IF THREE OR MORE PEOPLE MEET TOGETHER ON A SIDEWALK OR STREET
CORNER, THEY MUST CONDUCT THEMSELVES SO AS NOT TO ANNOY ANY POLICE
OFFICER OR OTHER PERSON WHO SHOULD HAPPEN TO PASS BY.  IN OUR OPINION
THIS ORDINANCE IS UNCONSTITUTIONALLY VAGUE BECAUSE IT SUBJECTS THE
EXERCISE OF THE RIGHT OF ASSEMBLY TO AN UNASCERTAINABLE STANDARD, AND
UNCONSTITUTIONALLY BROAD BECAUSE IT AUTHORIZES THE PUNISHMENT OF
CONSTITUTIONALLY PROTECTED CONDUCT. 

CONDUCT THAT ANNOYS SOME PEOPLE DOES NOT ANNOY OTHERS.  THUS, THE
ORDINANCE IS VAGUE, NOT IN THE SENSE THAT IT REQUIRES A PERSON TO
CONFORM HIS CONDUCT TO AN IMPRECISE BUT COMPREHENSIBLE NORMATIVE
STANDARD, BUT RATHER IN THE SENSE THAT NO STANDARD OF CONDUCT IS
SPECIFIED AT ALL.  AS A RESULT, "MEN OF COMMON INTELLIGENCE MUST
NECESSARILY GUESS AT ITS MEANING."  CONNALLY V. GENERAL CONSTRUCTION
CO., 269 U.S. 385, 391. 

IT IS SAID THAT THE ORDINANCE IS BROAD ENOUGH TO ENCOMPASS MANY
TYPES OF CONDUCT CLEARLY WITHIN THE CITY'S CONSTITUTIONAL POWER TO
PROHIBIT.  AND SO, INDEED, IT IS.  THE CITY IS FREE TO PREVENT PEOPLE
FROM BLOCKING SIDEWALKS, OBSTRUCTING TRAFFIC, LITTERING STREETS,
COMMITTING ASSAULTS, OR ENGAGING IN COUNTLESS OTHER FORMS OF ANTI
SOCIAL CONDUCT.  IT CAN DO SO THROUGH THE ENACTMENT AND ENFORCEMENT OF
ORDINANCES DIRECTED WITH REASONABLE SPECIFICITY TOWARD THE CONDUCT TO
BE PROHIBITED.  GREGORY V. CHICAGO, 394 U.S. 111, 118, 124-125 (BLACK,
J., CONCURRING).  IT CANNOT CONSTITUTIONALLY DO SO THROUGH THE
ENACTMENT AND ENFORCEMENT OF AN ORDINANCE WHOSE VIOLATION MAY ENTIRELY
DEPEND UPON WHETHER OR NOT A POLICEMAN IS ANNOYED.  /4/ 

BUT THE VICE OF THE ORDINANCE LIES NOT ALONE IN ITS VIOLATION OF THE
DUE PROCESS STANDARD OF VAGUENESS.  THE ORDINANCE ALSO VIOLATES THE
CONSTITUTIONAL RIGHT OF FREE ASSEMBLY AND ASSOCIATION.  OUR DECISIONS
ESTABLISH THAT MERE PUBLIC INTOLERANCE OR ANIMOSITY CANNOT BE THE BASIS
FOR ABRIDGMENT OF THESE CONSTITUTIONAL FREEDOMS.  SEE STREET V. NEW
YORK, 394 U.S. 576, 592; COX V. LOUISIANA, 379 U.S. 536, 551-553;
EDWARDS V SOUTH CAROLINA, 372 U.S. 229, 238; TERMINIELLO V. CHICAGO,
337 U.S. 1; CANTWELL V. CONNECTICUT, 310 U.S. 296, 311; SCHNEIDER V.
STATE, 308 U.S. 147, 161.  THE FIRST AND FOURTEENTH AMENDMENTS DO NOT
PERMIT A STATE TO MAKE CRIMINAL THE EXERCISE OF THE RIGHT OF ASSEMBLY
SIMPLY BECAUSE ITS EXERCISE MAY BE "ANNOYING" TO SOME PEOPLE.  IF THIS
WERE NOT THE RULE, THE RIGHT OF THE PEOPLE TO GATHER IN PUBLIC PLACES
FOR SOCIAL OR POLITICAL PURPOSES WOULD BE CONTINUALLY SUBJECT TO
SUMMARY SUSPENSION THROUGH THE GOOD-FAITH ENFORCEMENT OF A PROHIBITION
AGAINST ANNOYING CONDUCT.  /5/  AND SUCH A PROHIBITION, IN ADDITION,
CONTAINS AN OBVIOUS INVITATION TO DISCRIMINATORY ENFORCEMENT AGAINST
THOSE WHOSE ASSOCIATION TOGETHER IS "ANNOYING" BECAUSE THEIR IDEAS,
THEIR LIFESTYLE, OR THEIR PHYSICAL APPEARANCE IS RESENTED BYTHE
MAJORITY OF THEIR FELLOW CITIZENS.  /6/ 

THE ORDINANCE BEFORE US MAKES A CRIME OUT OF WHAT UNDER THE
CONSTITUTION CANNOT BE A CRIME.  IT IS AIMED DIRECTLY AT ACTIVITY
PROTECTED BY THE CONSTITUTION.  WE NEED NOT LAMENT THAT WE DO NOT HAVE
BEFORE US THE DETAILS OF THE CONDUCT FOUND TO BE ANNOYING.  IT IS THE
ORDINANCE ON ITS FACE THAT SETS THE STANDARD OF CONDUCT AND WARNS
AGAINST TRANSGRESSION.  THE DETAILS OF THE OFFENSE COULD NO MORE SERVE
TO VALIDATE THIS ORDINANCE THAN COULD THE DETAILS OF AN OFFENSE CHARGED
UNDER AN ORDINANCE SUSPENDING UNCONDITIONALLY THE RIGHT OF ASSEMBLY AND
FREE SPEECH. 

THE JUDGMENT IS REVERSED. 

/1/  "IT SHALL BE UNLAWFUL FOR THREE OR MORE PERSONS TO ASSEMBLE,
EXCEPT AT A PUBLIC MEETING OF CITIZENS, ON ANY OF THE SIDEWALKS, STREET
CORNERS, VACANT LOTS, OR MOUTHS OF ALLEYS, AND THERE CONDUCT THEMSELVES
IN A MANNER ANNOYING TO PERSONS PASSING BY, OR OCCUPANTS OF ADJACENT
BUILDINGS.  WHOEVER VIOLATES ANY OF THE PROVISIONS OF THIS SECTION
SHALL BE FINED NOT EXCEEDING FIFTY DOLLARS ($50.00), OR BE IMPRISONED
NOT LESS THAN ONE (1) NOR MORE THAN THIRTY (30) DAYS OR BOTH."  SECTION
901-L6, CODE OF ORDINANCES OF THE CITY OF CINCINNATI (1956). 

/2/  "FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT OF A
STATE IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE SUPREME
COURT AS FOLLOWS:

        .          .          .   . 

"(2) BY APPEAL, WHERE IS DRAWN IN QUESTION THE VALIDITY OF A STATUTE
OF ANY STATE ON THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION,
TREATIES OR LAWS OF THE UNITED STATES, AND THE DECISION IS IN FAVOR OF
ITS VALIDITY." 

/3/  CF. CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, WHERE THIS COURT
UPHELD A STATUTE THAT PUNISHED "OFFENSIVE, DERISIVE OR ANNOYING"
WORDS.  THE STATE COURTS HAD CONSTRUED THE STATUTE AS APPLYING ONLY TO
SUCH WORDS "AS HAVE A DIRECT TENDENCY TO CAUSE ACTS OF VIOLENCE BY THE
PERSONS TO WHOM, INDIVIDUALLY, THE REMARK IS ADDRESSED."  THE STATE
COURT ALSO SAID:  "THE WORD 'OFFENSIVE' IS NOT TO BE DEFINED IN TERMS
OF WHAT A PARTICULAR ADDRESSEE THINKS.  . . . THE TEST IS WHAT MEN OF
COMMON INTELLIGENCE WOULD UNDERSTAND WOULD BE WORDS LIKELY TO CAUSE AN
AVERAGE ADDRESSEE TO FIGHT.  . . . THE ENGLISH LANGUAGE HAS A NUMBER OF
WORDS AND EXPRESSIONS WHICH BY GENERAL CONSENT ARE 'FIGHTING WORDS'
WHEN SAID WITHOUT A DISARMING SMILE.  . . . SUCH WORDS, AS ORDINARY MEN
KNOW, ARE LIKELY TO CAUSE A FIGHT.  SO ARE THREATENING, PROFANE OR
OBSCENE REVILINGS.  DERISIVE AND ANNOYING WORDS CAN BE TAKEN AS COMING
WITH THE PURVIEW OF THE STATUTE AS HERETOFORE INTERPRETED ONLY WHEN
THEY HAVE THIS CHARACTERISTIC OF PLAINLY TENDING TO EXCITE THE
ADDRESSEE TO A BREACH OF THE PEACE."  THIS COURT WAS "UNABLE TO SAY
THAT THE LIMITED SCOPE OF THE STATUTE AS THUS CONSTRUED CONTRAVENES THE
CONSTITUTIONAL RIGHT OF FREE EXPRESSION."  315 U.S.,AT 573. 

/4/  IN STRIKING DOWN A VERY SIMILAR ORDINANCE OF CLEVELAND, OHIO,
AS CONSTITUTIONALLY INVALID, THE COURT OF APPEALS FOR CUYAHOGA COUNTY
SAID: 

"AS IT IS WRITTEN, THE DISORDERLY ASSEMBLY ORDINANCE COULD BE USED
TO INCRIMINATE NEARLY ANY GROUP OR INDIVIDUAL.  WITH LITTLE EFFORT, ONE
CAN IMAGINE MANY . . . ASSEMBLAGES WHICH, AT VARIOUS TIMES, MIGHT ANNOY
SOME PERSONS IN THE CITY OF CLEVELAND.  ANYONE COULD BECOME AN
UNWITTING PARTICIPANT IN A DISORDERLY ASSEMBLY, AND SUFFER THE PENALTY
CONSEQUENCES.  IT HAS BEEN LEFT TO THE POLICE AND THE COURTS TO DECIDE
WHEN AND TO WHAT EXTENT ORDINANCE SECTION 13.1124 IS APPLICABLE. 
NEITHER THE POLICE NOR A CITIZEN CAN HOPE TO CONDUCT HIMSELF IN A
LAWFUL MANNER IF AN ORDINANCE WHICH IS DESIGNED TO REGULATE CONDUCT
DOES NOT LAY DOWN ASCERTAINABLE RULES AND GUIDELINES TO GOVERN ITS
ENFORCEMENT.  THIS ORDINANCE REPRESENTS AN UNCONSTITUTIONAL EXERCISE OF
THE POLICE POWER OF THE CITY OF CLEVELAND, AND IS THEREFORE VOID." 
CLEVELAND V. ANDERSON, 13 OHIO APP.2D 83, 90, 234 N.E.2D 304, 309-310. 

/5/  IN STRIKING DOWN A VERY SIMILAR ORDINANCE OF TOLEDO, OHIO, AS
CONSTITUTIONALLY INVALID, THE MUNICIPAL COURT OF THAT CITY SAID: 

"UNDER THE PROVISIONS OF SECTIONS 17-5-10 AND 17-5-11, ARRESTS AND
PROSECUTIONS, AS IN THE PRESENT INSTANCE, WOULD HAVE BEEN EFFECTIVE AS
AGAINST EDMUND PENDLETON, PEYTON RANDOLPH, RICHARD HENRY LEE, GEORGE
WYTHE, PATRICK HENRY, THOMAS JEFFERSON, GEORGE WASHINGTON AND OTHERS
FOR LOITERING AND CONGREGATING IN FRONT OF RALEIGH TAVERN ON DUKE OF
GLOUCESTER STREET IN WILLIAMSBURG, VIRGINIA, AT ANY TIME DURING THE
SUMMER OF 1774 TO THE GREAT ANNOYANCE OF GOVERNOR DUNSMORE AND HIS
COLONIAL CONSTABLES."  CITY OF TOLEDO V. SIMS, 14 OHIO OP.2D 66, 69,
169 N.E.2D 516, 520. 

/6/  THE ALLEGED DISCRIMINATORY ENFORCEMENT OF THIS ORDINANCE
FIGURES PROMINENTLY IN THE BACKGROUND OF THE SERIOUS CIVIL DISTURBANCES
THAT TOOK PLACE IN CINCINNATI IN JUNE 1967.  SEE REPORT OF THE NATIONAL
ADVISORY COMMISSION ON CIVIL DISORDERS 26-27 (1968). 

MR. JUSTICE BLACK. 

FIRST.  I AGREE WITH THE MAJORITY THAT THIS CASE IS PROPERLY BEFORE
US ON APPEAL FROM THE SUPREME COURT OF OHIO. 

SECOND.  THIS COURT HAS LONG HELD THAT LAWS SO VAGUE THAT A PERSON
OF COMMON UNDERSTANDING CANNOT KNOW WHAT IS FORBIDDEN ARE
UNCONSTITUTIONAL ON THEIR FACE.  LANZETTA V. NEW JERSEY, 306 U.S. 451
(1939), UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81 (1921). 
LIKEWISE, LAWS WHICH BROADLY FORBID CONDUCT OR ACTIVITIES WHICH ARE
PROTECTED BY THE FEDERAL CONSTITUTION, SUCH AS, FOR INSTANCE, THE
DISCUSSION OF POLITICAL MATTERS, ARE VOID ON THEIR FACE.  THORNHILL V.
ALABAMA, 310 U.S. 88 (1940).  ON THE OTHER HAND, LAWS WHICH PLAINLY
FORBID CONDUCT WHICH IS CONSTITUTIONALLY WITHIN THE POWER OF THE STATE
TO FORBID BUT ALSO RESTRICT CONSTITUTIONALLY PROTECTED CONDUCT MAY BE
VOID EITHER ON THEIR FACE OR MERELY AS APPLIED IN CERTAIN INSTANCES. 
AS MY BROTHER WHITE STATES IN HIS OPINION (WITH WHICH I SUBSTANTIALLY
AGREE), THIS IS ONE OF THOSE NUMEROUS CASES WHERE THE LAW COULD BE HELD
UNCONSTITUTIONAL BECAUSE IT PROHIBITS BOTH CONDUCT WHICH THE
CONSTITUTION SAFEGUARDS AND CONDUCT WHICH THE STATE MAY
CONSTITUTIONALLY PUNISH.  THUS, THE FIRST AMENDMENT WHICH FORBIDS THE
STATE TO ABRIDGE FREEDOM OF SPEECH, WOULD INVALIDATE THIS CITY
ORDINANCE IF IT WERE USED TO PUNISH THE MAKING OF A POLITICAL SPEECH,
EVEN IF THAT SPEECH WERE TO ANNOY OTHER PERSONS.  IN CONTRAST, HOWEVER,
THE ORDINANCE COULD PROPERLY BE APPLIED TO PROHIBIT THE GATHERING OF
PERSONS IN THE MOUTHS OF ALLEYS TO ANNOY PASSERBY BY THROWING ROCKS OR
BY SOME OTHER CONDUCT NOT AT ALL CONNECTED WITH SPEECH.  IT IS A MATTER
OF NO LITTLE DIFFICULTY TO DETERMINE WHEN A LAW CAN BE HELD VOID ON ITS
FACE AND WHEN SUCH SUMMARY ACTION IS INAPPROPRIATE.  THIS DIFFICULTY
HAS BEEN AGGRAVATED IN THIS CASE, BECAUSE THE RECORD FAILS TO SHOW IN
WHAT CONDUCT THESE DEFENDANTS HAD ENGAGED TO ANNOY OTHER PEOPLE.  IN MY
VIEW, A RECORD SHOWING THE FACTS SURROUNDING THE CONVICTION IS
ESSENTIAL TO ADJUDICATE THE IMPORTANT CONSTITUTIONAL ISSUES IN THIS
CASE.  I WOULD THEREFORE VACATE THE JUDGMENT AND REMAND THE CASE WITH
INSTRUCTIONS THAT THE TRIAL COURT GIVE BOTH PARTIES AN OPPORTUNITY TO
SUPPLEMENT THE RECORD SO THAT WE MAY DETERMINE WHETHER THE CONDUCT
ACTUALLY PUNISHED IS THE KIND OF CONDUCT WHICH IT IS WITHIN THE POWER
OF THE STATE TO PUNISH. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

THE CLAIM IN THIS CASE, IN PART, IS THAT THE CINCINNATI ORDINANCE IS
SO VAGUE THAT IT MAY NOT CONSTITUTIONALLY BE APPLIED TO ANY CONDUCT. 
BUT THE ORDINANCE PROHIBITS PERSONS FROM ASSEMBLING WITH OTHERS AND
"CONDUCTING) THEMSELVES IN A MANNER ANNOYING TO PERSONS PASSING BY. . .
."  CINCINNATI CODE OF ORDINANCES SEC. 901-L6.  ANY MAN OF AVERAGE
COMPREHENSION SHOULD KNOW THAT SOME KINDS OF CONDUCT, SUCH AS ASSAULT
OR BLOCKING PASSAGE ON THE STREET, WILL ANNOY OTHERS AND ARE CLEARLY
COVERED BY THE "ANNOYING CONDUCT" STANDARD OF THE ORDINANCE.  IT WOULD
BE FRIVOLOUS TO SAY THAT THESE AND MANY OTHER KINDS OF CONDUCT ARE NOT
WITHIN THE FORESEEABLE REACH OF THE LAW.     IT IS POSSIBLE THAT A
WHOLE RANGE OF OTHER ACTS, DEFINED WITH UNCONSTITUTIONAL IMPRECISION,
IS FORBIDDEN BY THE ORDINANCE.  BUT AS A GENERAL RULE, WHEN A CRIMINAL
CHARGE IS BASED ON CONDUCT CONSTITUTIONALLY SUBJECT TO PROSCRIPTION AND
CLEARLY FORBIDDEN BY A STATUTE, IT IS NO DEFENSE THAT THE LAW WOULD BE
UNCONSTITUTIONALLY VAGUE IF APPLIED TO OTHER BEHAVIOR.  SUCH A STATUTE
IS NOT VAGUE IF APPLIED TO OTHER BEHAVIOR.  SUCH A STATUTE IS NOT VAGUE
ON ITS FACE.  IT MAY BE VAGUE AS APPLIED IN SOME CIRCUMSTANCES, BUT
RULING ON SUCH A CHALLENGE OBVIOUSLY REQUIRES KNOWLEDGE OF THE CONDUCT
WITH WHICH A DEFENDANT IS CHARGED. 

IN WILLIAMS V. UNITED STATES, 341 U.S. 97 (1951), A POLICE OFFICER
WAS CHARGED UNDER FEDERAL STATUTES WITH EXTRACTING CONFESSIONS BY FORCE
AND THUS, UNDER COLOR OF LAW, DEPRIVING THE PRISONER THERE INVOLVED OF
RIGHTS, PRIVILEGES, AND IMMUNITIES SECURED OR PROTECTED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES, CONTRARY TO 18 U.S.C. 242. 
THE DEFENDANT THERE URGED THAT THE STANDARD-- RIGHTS, PRIVILEGES, AND
IMMUNITIES SECURED BY THE CONSTITUTION-- WAS IMPERMISSIBLY VAGUE AND,
MORE PARTICULARLY, THAT THE COURT WAS OFTEN SO CLOSELY DIVIDED ON
ILLEGAL-CONFESSION ISSUES THAT NO DEFENDANT COULD BE EXPECTED TO KNOW
WHEN HE WAS VIOLATING THE LAW.  THE COURT'S RESPONSE WAS THAT, WHILE
APPLICATION OF THE STATUTE TO LESS OBVIOUS METHODS OF COERCION MIGHT
RAISE DOUBTS ABOUT THE ADEQUACY OF THE STANDARD OF GUILTY, IN THE CASE
BEFORE IT, IT WAS "PLAIN AS A PIKESTAFF THAT THE PRESENT CONFESSIONS
WOULD NOT BE ALLOWED IN EVIDENCE WHATEVER THE SCHOOL OF THOUGHT
CONCERNING THE SCOPE AND MEANING OF THE DUE PROCESS CLAUSE."  ID., AT
101.  THE CLAIM OF FACIAL VAGUENESS WAS THUS REJECTED. 

SO TOO IN UNITED STATES V. NATIONAL DAIRY CORP., 372 U.S. 29 (1963),
WHERE WE CONSIDERED A STATUTE FORBIDDING SALES OF GOODS AT
"UNREASONABLY" LOW PRICES TO INJURE OR ELIMINATE A COMPETITOR, 15
U.S.C. 13A, WE THOUGH THE STATUTE GAVE A SELLER ADEQUATE NOTICE THAT
SALES BELOW COST WERE ILLEGAL.  THE STATUTE WAS THEREFORE NOT FACIALLY
VAGUE, ALTHOUGH IT MIGHT BE DIFFICULT TO TELL WHETHER CERTAIN OTHER
KINDS OF CONDUCT FELL WITHIN THIS LANGUAGE.  WE SAID:  "IN DETERMINING
THE SUFFICIENCY OF THE NOTICE A STATUTE MUST OF NECESSITY BE EXAMINED
IN THE LIGHT OF THE CONDUCT WITH WHICH A DEFENDANT IS CHARGED."  ID.,
AT 33.  SEE ALSO UNITED STATES V. HARRISS, 347 U.S. 612 (1954).  THIS
APPROACH IS CONSISTENT WITH THE HOST OF CASES HOLDING THAT "ONE TO WHOM
APPLICATION OF A STATUTE IS CONSTITUTIONAL WILL NOT BE HEARD TO ATTACK
THE STATUTE ON THE GROUND THAT IMPLIEDLY IT MIGHT ALSO BE TAKEN AS
APPLYING TO OTHER PERSONS OR OTHER SITUATIONS IN WHICH ITS APPLICATION
MIGHT BE UNCONSTITUTIONAL."  UNITED STATES V. RAINES, 362 U.S. 17, 21
(1960), AND CASES THERE CITED. 

OUR CASES, HOWEVER, INCLUDING NATIONAL DAIRY, RECOGNIZE A DIFFERENT
APPROACH WHERE THE STATUTE AT ISSUE PURPORTS TO REGULATE OR PROSCRIBE
RIGHTS OF SPEECH OR PRESS PROTECTED BY THE FIRST AMENDMENT.  SEE UNITED
STATES V. ROBEL, 389 U.S. 258 (1967); KEYISHIAN V. BOARD OF REGENTS,
385 U.S. 589 (1967); KUNZ V. NEW YORK, 340 U.S. 290 (1951).  ALTHOUGH A
STATUTE MAY BE NEITHER VAGUE, OVERBROAD, NOR OTHERWISE INVALID AS
APPLIED TO THE CONDUCT CHARGED AGAINST A PARTICULAR DEFENDANT, HE IS
PERMITTED TO RAISE ITS VAGUENESS OR UNCONSTITUTIONAL OVERBREADTH AS
APPLIED TO OTHERS.  AND IF THE LAW IS FOUND DEFICIENT IN ONE OF THESE
RESPECTS, IT MAY NOTBE APPLIED TO HIM EITHER, UNTIL AND UNLESS A
SATISFACTORY LIMITING CONSTRUCTION IS PLACED ON THE STATUTE. 
DOMBROWSKI V. PFISTER, 380 U.S. 479, 491-492 (1965).  THE STATUTE, IN
EFFECT, IF STRICKEN DOWN ON ITS FACE.  THIS RESULT IS DEEMED JUSTIFIED
SINCE THE OTHERWISE CONTINUED EXISTENCE OF THE STATUTE IN UNNARROWED
FORM WOULD TEND TO SUPPRESS CONSTITUTIONALLY PROTECTED RIGHTS.  SEE
UNITED STATES V. NATIONAL DAIRY CORP., SUPRA, AT 36. 

EVEN ACCEPTING THE OVERBREADTH DOCTRINE WITH RESPECT TO STATUTES
CLEARLY REACHING SPEECH, THE CINCINNATI ORDINANCE DOES NOT PURPORT TO
BAR OR REGULATE SPEECH AS SUCH.  IT PROHIBITS PERSONS FROM ASSEMBLING
AND "CONDUCTING)" THEMSELVES IN A MANNER ANNOYING TO OTHER PERSONS. 
EVEN IF THE ASSEMBLED DEFENDANTS IN THIS CASE WERE DEMONSTRATING AND
PICKETING, WE HAVE LONG RECOGNIZED THAT PICKETING IS NOT SOLELY A
COMMUNICATIVE ENDEAVOR AND HAS ASPECTS WHICH THE STATE IS ENTITLED TO
REGULATE EVEN THOUGH THERE IS INCIDENTAL IMPACT ON SPEECH.  IN COX V.
LOUISIANA, 379 U.S. 559 (1965), THE COURT HELD VALID ON ITS FACE A
STATUTE FORBIDDING PICKETING AND PARADING NEAR A COURTHOUSE.  THIS WAS
DEEMED A VALID REGULATION OF CONDUCT RATHER THAN PURE SPEECH.  THE
CONDUCT REACHED BY THE STATUTE WAS "SUBJECT TO REGULATION EVEN THOUGH
(IT WAS) INTERTWINED WITH EXPRESSION AND ASSOCIATION."  ID., AT 563. 
THE COURT THEN WENT ON TO CONSIDER THE STATUTE AS APPLIED TO THE FACTS
OF RECORD. 

IN THE CASE BEFORE US, I WOULD DEAL WITH THE CINCINNATI ORDINANCE AS
WE WOULD WITH THE ORDINARY CRIMINAL STATUTE.  THE ORDINANCE CLEARLY
REACHES CERTAIN CONDUCT BUT MAY BE ILLEGALLY VAGUE WITH RESPECT TO
OTHER CONDUCT.  THE STATUTE IS NOT INFIRM ON ITS FACE AND SINCE WE HAVE
NO INFORMATION FROM THIS RECORD AS TO WHAT CONDUCT WAS CHARGED AGAINST
THESE DEFENDANTS, WE ARE IN NO POSITION TO JUDGE THE STATUTE AS
APPLIED.  THAT THE ORDINANCE MAY CONFER WIDE DISCRETION IN A WIDE RANGE
OF CIRCUMSTANCES IS IRRELEVANT WHEN WE MAY BE DEALING WITH CONDUCT AT
ITS CORE. 

I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE OHIO SUPREME COURT. 

ROBERT R. LAVERCOMBE ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLANTS. 

A. DAVID NICHOLS ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS WILLAIM A. MCCLAIN. 
..END :














NELSON V. O'NEIL, 402 U.S. 622 


       NELSON, WARDEN V. O'NEIL

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 336.  ARGUED MARCH 24, 1971-- DECIDED JUNE 1, 1971 


RESPONDENT AND ONE RUNNELS WERE CHARGED WITH COMMITTING VARIOUS
CRIMES AND AT THEIR JOINT TRIAL OFFERED AN ALIBI DEFENSE.  A POLICE
OFFICER TESTIFIED THAT RUNNELS HAD ORALLY ADMITTED THE CRIMES AND
IMPLICATED RESPONDENT.  RUNNELS, WHO TOOK THE STAND, DENIED MAKING THE
STATEMENT.  THE TRIAL JUDGE RULED THAT RUNNELS' ALLEGED STATEMENT WAS
INADMISSIBLE HEARSAY AS TO RESPONDENT AND COULD NOT BE CONSIDERED BY
THE JURY IN DECIDING WHETHER RESPONDENT WAS GUILTY.  RESPONDENT ALSO
TOOK THE STAND ON HIS OWN BEHALF AND GAVE THE SAME VERSION OF THEIR
ACTIVITIES AS RUNNELS.  BOTH DEFENDANTS WERE FOUND GUILTY, AND, AFTER
UNSUCCESSFUL EFFORTS TO HAVE HIS CONVICTION SET ASIDE, RESPONDENT
APPLIED FOR HABEAS CORPUS RELIEF.  THE DISTRICT COURT RULED THAT
RESPONDENT'S CONVICTION WAS IMPROPER UNDER BRUTON V. UNITED STATES, 391
U.S. 123, AND ROBERTS V. RUSSELL, 392 U.S. 293, WHICH HELD THAT THE
CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT AS MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH IS VIOLATED WHERE A CODEFENDANT'S OUT-OF-COURT
HEARSAY STATEMENT IS ADMITTED INTO EVIDENCE WITHOUT THE DECLARANT'S
BEING AVAILABLE AT TRIAL FOR "FULL AND EFFECTIVE" CROSS-EXAMINATION BY
THE DEFENDANT, AND THAT A CAUTIONARY INSTRUCTION TO THE JURY DOES NOT
ADEQUATELY PROTECT THE DEFENDANT WHERE THE CODEFENDANT DOES NOT
TESTIFY.  THE COURT OF APPEALS AFFIRMED, STRESSING THAT EFFECTIVE
CONFRONTATION OF A WITNESS WHO HAS ALLEGEDLY MADE AN OUT-OF-COURT
STATEMENT IMPLICATING THE DEFENDANT WAS POSSIBLE ONLY IF THE WITNESS
AFFIRMED THE STATEMENT AS HIS.  HELD:  WHERE A CODEFENDANT TAKES THE
STAND IN HIS OWN DEFENSE, DENIES MAKING AN ALLEGED OUT-OF-COURT
STATEMENT IMPLICATING THE DEFENDANT, AND TESTIFIES IN THE DEFENDANT'S
FAVOR, THE DEFENDANT HAS BEEN DENIED NO RIGHTS PROTECTED BY THE SIXTH
AND FOURTEENTH AMENDMENTS AND IN THE CIRCUMSTANCES OF THIS CASE
RESPONDENT, WHO WOULD HAVE ENCOUNTERED GREATER DIFFICULTY HAD RUNNELS
AFFIRMED THE STATEMENT AS HIS, WAS DENIED NEITHER THE OPPORTUNITY NOR
THE BENEFIT OF FULLY AND EFFECTIVELY CROSS-EXAMINING RUNNELS.  BRUTON,
SUPRA, DISTINGUISHED.  PP. 626-630. 

422 F.2D 319, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, HARLAN, WHITE, AND BLACKMUN, JJ., JOINED.  HARLAN, J.,
FILED A CONCURRING OPINION, POST, P. 630.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED, POST,
P. 632.  MARSHALL, J., FILED A DISSENTING OPINION, POST, P. 635. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, JOE O'NEIL, WAS ARRESTED ALONG WITH A MAN NAMED
RUNNELS WHEN THE POLICE OF CULVER CITY, CALIFORNIA, ANSWERED A MIDNIGHT
CALL FROM A LIQUOR STORE REPORTING THAT TWO MEN IN A WHITE CADILLAC
WERE SUSPICIOUSLY CRUISING ABOUT IN THE NEIGHBORHOOD.  THE POLICE
RESPONDED TO THE CALL, SPOTTED THE CADILLAC, AND FOLLOWED IT INTO AN
ALLEY WHERE A GUN WAS THROWN FROM ONE OF ITS WINDOWS.  THEY THEN
STOPPED THE CAR AND APPREHENDED THE RESPONDENT AND RUNNELS.  FURTHER
INVESTIGATION REVEALED THAT THE CAR HAD BEEN STOLEN ABOUT 10"30 THAT
NIGHT IN LOS ANGELES BY TWO MEN WHO HAD FORCED ITS OWNER AT GUNPOINT TO
DRIVE THEM A DISTANCE OF A FEW BLOCKS AND THEN HAD ROBBED HIM OF $8 AND
DRIVEN OFF.  THE VICTIM SUBSEQUENTLY PICKED RUNNELS AND THE RESPONDENT
FROM A LINEUP, POSITIVELY IDENTIFYING THEM AS THE MEN WHO HAD KIDNAPED
AND ROBBED HIM. 

ARRAIGNED ON CHARGES OF KIDNAPING, ROBBERY, AND VEHICLE THEFT, BOTH
THE RESPONDENT AND RUNNELS PLEADED NOT GUILTY, AND AT THEIR JOINT TRIAL
THEY OFFERED AN ALIBI DEFENSE.  EACH TOLD THE SAME STORY:  THEY HAD
SPENT THE EVENING AT THE RESPONDENT'S HOME UNTIL ABOUT 11 P.M., WHEN
THEY HAD LEFT TOGETHER.  WHILE WAITING AT A BUS STOP THEY WERE PICKED
UP BY A FRIEND DRIVING A WHITE CADILLAC, AND HE OFFERED TO LEND THEM
THE CAR FOR A FEW HOURS WHILE HE WENT INTO A NIGHTCLUB.  THEY ACCEPTED
THE OFFER, AND ONCE ON THEIR WAY DISCOVERED THAT THERE WAS A GUN IN THE
GLOVE COMPARTMENT.  THEY ENTERED AN ALLEY IN SEARCH OF A PLACE TO
DISPOSE OF THE GUN, SINCE THEY WERE AFRAID OF BEING STOPPED WITH IT IN
THE CAR.  SOON AFTER THROWING THE GUN OUT OF THE WINDOW THEY WERE
STOPPED BY THE POLICE AND ARRESTED.  THE SUPPOSED FRIEND WAS NOT CALLED
AS A WITNESS AND WAS NOT SHOWN TO BE UNAVAILABLE, BUT OTHER WITNESSES
CORROBORATED PARTS OF THEIR ALIBI TESTIMONY. 

THE OWNER OF THE WHITE CADILLAC MADE A POSITIVE IN-COURT
IDENTIFICATION OF THE DEFENDANTS, AND A POLICE OFFICER TESTIFIED TO THE
FACTS OF THE ARREST.  ANOTHER POLICE OFFICER TESTIFIED THAT AFTER THE
ARREST RUNNELS HAD MADE AN UNSWORN ORAL STATEMENT ADMITTING THE CRIMES
AND IMPLICATING THE RESPONDENT AS HIS CONFEDERATE.  THE TRIAL JUDGE
RULED THE OFFICER'S TESTIMONY AS TO THE SUBSTANCE OF THE ALLEGED
STATEMENT ADMISSIBLE AGAINST RUNNELS, BUT INSTRUCTED THE JURY THAT IT
COULD NOT CONSIDER IT AGAINST THE RESPONDENT.  WHEN RUNNELS TOOK THE
STAND IN HIS OWN DEFENSE, HE WAS ASKED ON DIRECT EXAMINATION WHETHER HE
HAD MADE THE STATEMENT, AND HE FLATLY DENIED HAVING DONE SO.  HE ALSO
VIGOROUSLY ASSERTED THAT THE SUBSTANCE OF THE STATEMENT IMPUTED TO HIM
WAS FALSE.  HE WAS THEN INTENSIVELY CROSS-EXAMINED BY THE PROSECUTOR,
BUT STUCK TO HIS STORY IN EVERY PARTICULAR.  THE RESPONDENT'S COUNSEL
DID NOT CROSS-EXAMINE RUNNELS, ALTHOUGH HE WAS, OF COURSE, FULLY FREE
TO DO SO.  THE RESPONDENT TOOK THE STAND ON HIS OWN BEHALF AND TOLD A
STORY IDENTICAL TO THAT OF RUNNELS AS TO THE ACTIVITIES OF THE TWO ON
THE NIGHT IN QUESTION.  BOTH THE PROSECUTOR AND RUNNELS' COUNSEL
DISCUSSED THE ALLEGED CONFESSION IN THEIR CLOSING ARGUMENTS TO THE
JURY, AND THE TRIAL JUDGE REPEATED HIS INSTRUCTION THAT IT COULD BE
CONSIDERED ONLY AGAINST RUNNELS. 

THE JURY FOUND BOTH DEFENDANTS GUILTY AS CHARGED.  AFTER
UNSUCCESSFUL EFFORTS TO SET ASIDE THE CONVICTION IN THE CALIFORNIA
COURTS, THE RESPONDENT APPLIED FOR FEDERAL HABEAS CORPUS RELIEF IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,
AND WHILE THE CASE WAS PENDING THERE THIS COURT DECIDED BRUTON V.
UNITED STATES, 391 U.S. 123, AND ROBERTS V. RUSSELL, 302 U.S. 293,
HOLDING THAT UNDER CERTAIN CIRCUMSTANCES THE CONFRONTATION CLAUSE OF
THE SIXTH AMENDMENT, /1/  APPLICABLE TO THE STATES THROUGH THE
FOURTEENTH, /2/  IS VIOLATED WHEN A CODEFENDANT'S CONFESSION
IMPLICATING THE DEFENDANT IS PLACED BEFORE THE JURY AT THEIR JOINT
TRIAL.  /3/  THE DISTRICT COURT RULED THAT THE RESPONDENT'S CONVICTION
HAD TO BE SET ASIDE UNDER BRUTON AND ROBERTS, AND THE COURT OF APPEALS
FOR THE NINTH CIRCUIT AFFIRMED.  422 F.2D 319 (1970).  PETITIONER THEN
SOUGHT A WRIT OF CERTIORARI IN THIS COURT, CONTENDING, FIRST, THAT
THERE WAS NO CONSTITUTIONAL ERROR UNDER BRUTON AND ROBERTS, SECOND,
THAT ANY ERROR THERE MIGHT HAVE BEEN WAS HARMLESS BEYOND A REASONABLE
DOUBT UNDER THE DOCTRINE OF CHAPMAN V. CALIFORNIA, 386 U.S. 18, AND,
THIRD, THAT THE DISTRICT COURT SHOULD HAVE REQUIRED THE RESPONDENT
FIRST TO SEEK REDRESS IN THE STATE COURTS, WHICH HAD HAD NO OPPORTUNITY
TO CONSIDER THE BRUTON CLAIM.  WE GRANTED CERTIORARI TO CONSIDER THESE
ISSUES.  400 U.S. 901.  SINCE WE AGREE WITH THE PETITIONER THAT THERE
WAS NO VIOLATION OF THE CONSTITUTION IN THIS CASE, IT IS UNNECESSARY TO
CONSIDER THE OTHER QUESTIONS PRESENTED. 

RUNNELS' OUT-OF-COURT CONFESSION IMPLICATING THE RESPONDENT WAS
HEARSAY AS TO THE LATTER, AND THEREFORE INADMISSIBLE AGAINST HIM UNDER
STATE EVIDENCE LAW.  THE TRIAL JUDGE SO RULED, AND INSTRUCTED THE JURY
THAT IT MUST NOT CONSIDER ANY PART OF THE STATEMENT IN DECIDING WHETHER
OR NOT THE RESPONDENT WAS GUILTY.  IN BRUTON, HOWEVER, WE HELD THAT,
QUITE APART FROM THE LAW OF EVIDENCE, SUCH A CAUTIONARY INSTRUCTION TO
THE JURY IS NOT AN ADEQUATE PROTECTION FOR THE DEFENDANT WHERE THE
CODEFENDANT DOES NOT TAKE THE WITNESS STAND.  WE HELD THAT WHERE THE
JURY HEARS THE CODEFENDANT'S CONFESSION IMPLICATING THE DEFENDANT, THE
CODEFENDANT BECOMES IN SUBSTANCE, IF NOT IN FORM, A "WITNESS" AGAINST
THE DEFENDANT.  THE DEFENDANT MUST CONSTITUTIONALLY HAVE AN OPPORTUNITY
TO "CONFRONT" SUCH A WITNESS.  THIS THE DEFENDANT CANNOT DO IT THE
CODEFENDANT REFUSES TO TAKE THE STAND. 

IT WAS CLEAR IN BRUTON THAT THE "CONFRONTATION" GUARANTEED BY THE
SIXTH AND FOURTEENTH AMENDMENTS IS CONFRONTATION AT TRIAL-- THAT IS,
THAT THE ABSENCE OF THE DEFENDANT AT THE TIME THE CODEFENDANT ALLEGEDLY
MADE THE OUT-OF-COURT STATEMENT IS IMMATERIAL, SO LONG AS THE DECLARANT
CAN BE CROSS-EXAMINED ON THE WITNESS STAND AT TRIAL.  THIS WAS
CONFIRMED IN CALIFORNIA V. GREEN, 399 U.S. 149, WHERE WE SAID THAT
"(VIEWED HISTORICALLY . . . THERE IS A GOOD REASON TO CONCLUDE THAT THE
CONFRONTATION CLAUSE IS NOT VIOLATED BY ADMITTING A DECLARANT'S OUT-OF
COURT STATEMENTS, AS LONG AS THE DECLARANT IS TESTIFYING AS A WITNESS
AND SUBJECT TO FULL AND EFFECTIVE CROSS-EXAMINATION."  ID., AT 158. 
MOREOVER, "WHERE THE DECLARANT IS NOT ABSENT, BUT IS PRESENT TO TESTIFY
AND TO SUBMIT TO CROSS-EXAMINATION, OUR CASES, IF ANYTHING, SUPPORT THE
CONCLUSION THAT THE ADMISSION OF HIS OUT-OF-COURT STATEMENTS DOES NOT
CREATE A CONFRONTATION PROBLEM."  ID., AT 162.  THIS IS TRUE, OF
COURSE, EVEN THOUGH THE DECLARANT'S OUT-OF-COURT STATEMENT IS HEARSAY
AS TO THE DEFENDANT, SO THAT ITS ADMISSION AGAINST HIM, IN THE ABSENCE
OF A CAUTIONARY INSTRUCTION, WOULD BE REVERSIBLE ERROR UNDER STATE
LAW.  THE CONSTITUTION AS CONSTRUED IN BRUTON, IN OTHER WORDS, IS
VIOLATED ONLY WHERE THE OUT-OF-COURT HEARSAY STATEMENT IS THAT OF A
DECLARANT WHO IS UNAVAILABLE AT THE TRIAL FOR "FULL AND EFFECTIVE"
CROSS-EXAMINATION. 

THE QUESTION PRESENTED BY THIS CASE, THEN, IS WHETHER CROSS
EXAMINATION CAN BE FULL AND EFFECTIVE WHERE THE DECLARANT IS PRESENT AT
THE TRIAL, TAKES THE WITNESS STAND, TESTIFIES FULLY AS TO HIS
ACTIVITIES DURING THE PERIOD DESCRIBED IN HIS ALLEGED OUT-OF-COURT
STATEMENT, BUT DENIES THAT HE MADE THE STATEMENT AND CLAIMS THAT ITS
SUBSTANCE IS FALSE. 

IN AFFIRMING THE DISTRICT COURT, THE COURT OF APPEALS RELIED HEAVILY
ON THE DICTUM OF THIS COURT IN DOUGLAS V. ALABAMA, 380 U.S. 415, 420,
THAT "EFFECTIVE CONFRONTATION" OF A WITNESS WHO HAS ALLEGEDLY MADE AN
OUT-OF-COURT STATEMENT IMPLICATING THE DEFENDANT "WAS POSSIBLE ONLY IF
(THE WITNESS) AFFIRMED THE STATEMENT AS HIS."  THE COURT IN THAT CASE
ALSO REMARKED THAT THE WITNESS "COULD NOT BE CROSS-EXAMINED ON A
STATEMENT IMPUTED TO BUT NOT ADMITTED BY HIM."  ID., AT 419.  OF
COURSE, A WITNESS CAN BE CROSS-EXAMINED CONCERNING A STATEMENT NOT
"AFFIRMED" BY HIM, BUT THIS DICTUM FROM DOUGLAS WAS REPEATED IN BRUTON,
SUPRA, AT 127.  IN DOUGLAS AND BRUTON (AND IN THE OTHER CONFRONTATION
CASES BEFORE GREEN) /4/  THERE WAS IN FACT NO QUESTION OF THE EFFECT OF
AN AFFIRMANCE OR DENIAL OF THE INCRIMINATING STATEMENT, SINCE THE
WITNESS OR CODEFENDANT WAS IN EACH CASE TOTALLY UNAVAILABLE AT THE
TRIAL FOR ANY KIND OF CROSS-EXAMINATION.  THE SPECIFIC HOLDING OF THE
COURT IN BRUTON WAS: 

"PLAINLY, THE INTRODUCTION OF (THE CODEFENDANT'S) CONFESSION ADDED
SUBSTANTIAL, PERHAPS EVEN CRITICAL, WEIGHT TO THE GOVERNMENT'S CASE IN
A FORM NOT SUBJECT TO CROSS-EXAMINATION, SINCE (THE CODEFENDANT) DID
NOT TAKE THE STAND.  PETITIONER THUS WAS DENIED HIS CONSTITUTIONAL
RIGHT OF CONFRONTATION."  391 U.S.,AT 127-128.  THIS COURT HAS NEVER
GONE BEYOND THAT HOLDING. 

IN CALIFORNIA V. GREEN, SUPRA, THE DEFENDANT WAS ACCUSED OF
FURNISHING MARIHUANA TO A MINOR, PARTLY ON THE BASIS OF AN UNSWORN
STATEMENT, NOT SUBJECT TO CROSS-EXAMINATION, MADE BY THE MINOR HIMSELF
WHILE HE WAS UNDER ARREST FOR SELLING THE DRUG.  WHEN THE MINOR, NOT A
CODEFENDANT, TOOK THE STAND AT THE DEFENDANT'S TRIAL, HE CLAIMED THAT
HE COULD NOT REMEMBER ANY OF THE INCRIMINATING EVENTS DESCRIBED IN HIS
OUT-OF-COURT STATEMENT, ALTHOUGH HE ADMITTED HAVING MADE THE STATEMENT
AND CLAIMED THAT HE BELIEVED IT WHEN HE MADE IT.  THE EARLIER STATEMENT
WAS THEN INTRODUCED IN EVIDENCE TO SHOW THE TRUTH OF THE MATTER
ASSERTED, AND THIS COURT HELD IT ADMISSIBLE FOR THAT PURPOSE.  THE
CIRCUMSTANCES OF GREEN ARE INVERTED IN THIS CASE.  THERE, THE WITNESS
AFFIRMED THE OUT-OF-COURT STATEMENT BUT WAS UNABLE TO TESTIFY IN COURT
AS TO THE UNDERLYING FACTS; HERE, THE WITNESS, RUNNELS, DENIED EVEN
MAKING AN OUT-OF-COURT STATEMENT BUT TESTIFIED AT LENGTH, AND
FAVORABLEY TO THE DEFENDANT, CONCERNING THE UNDERLYING FACTS. 

HAD RUNNELS IN THIS CASE "AFFIRMED THE STATEMENT AS HIS," THE
RESPONDENT WOULD CERTAINLY HAVE BEEN IN FAR WORSE STRAITS THAN THOSE IN
WHICH HE FOUND HIMSELF WHEN RUNNELS TESTIFIED AS HE DID.  FOR THEN
COUNSEL FOR THE RESPONDENT COULD ONLY HAVE ATTEMPTED TO SHOW THROUGH
CROSS-EXAMINATION THAT RUNNELS HAD CONFESSED TO A CRIME HE HAD NOT
COMMITTED, OR, SLIGHTLY MORE PLAUSIBLY, THAT THOSE PARTS OF THE
CONFESSION IMPLICATING THE RESPONDENT WERE FABRICATED.  THIS WOULD,
MOREOVER, HAVE REQUIRED AN ABANDONMENT OF THE JOINT ALIBI DEFENSE, AND
THE PRODUCTION OF A NEW EXPLANATION FOR THE RESPONDENT'S PRESENCE WITH
RUNNELS IN THE WHITE CADILLAC AT THE TIME OF THEIR ARREST.  TO BE SURE,
RUNNELS MIGHT HAVE "AFFIRMED THE STATEMENT" BUT DENIED ITS
TRUTHFULNESS, CLAIMING, FOR EXAMPLE, THAT IT HAD BEEN COERCED, OR MADE
AS PART OF A PLEA BARGAIN.  BUT CROSS-EXAMINATION BY THE RESPONDENT'S
COUNSEL WOULD HAVE BEEN FUTILE IN THAT EVENT AS WELL.  FOR ONCE RUNNELS
HAD TESTIFIED THAT THE STATEMENT WAS FALSE, IT COULD HARDLY HAVE
PROFITED THE RESPONDENT FOR HIS COUNSEL THROUGH CROSS-EXAMINATION TO
TRY TO SHAKE THAT TESTIMONY.  IF THE JURY WERE TO BELIEVE THAT THE
STATEMENT WAS FALSE AS TO RUNNELS, IT COULD HARDLY CONCLUDE THAT IT WAS
NOT FALSE AS TO THE RESPONDENT AS WELL. 

THE SHORT OF THE MATTER IS THAT, GIVEN A JOINT TRIAL AND A COMMON
DEFENSE, RUNNELS' TESTIMONY RESPECTING HIS ALLEGED OUT-OF-COURT
STATEMENT WAS MORE FAVORABLE TO THE RESPONDENT THAN ANY THAT CROSS
EXAMINATION BY COUNSEL COULD POSSIBLE HAVE PRODUCED, HAD RUNNELS
"AFFIRMED THE STATEMENT AS HIS."  IT WOULD BE UNREALISTIC IN THE
EXTREME IN THE CIRCUMSTANCES HERE PRESENTED TO HOLD THAT THE RESPONDENT
WAS DENIED EITHER THE OPPORTUNITY OR THE BENEFIT OF FULL AND EFFECTIVE
CROSS-EXAMINATION OF RUNNELS. 

WE CONCLUDE THAT WHERE A CODEFENDANT TAKES THE STAND IN HIS OWN
DEFENSE, DENIES MAKING AN ALLEGED OUT-OF-COURT STATEMENT IMPLICATING
THE DEFENDANT, AND PROCEEDS TO TESTIFY FAVORABLY TO THE DEFENDANT
CONCERNING THE UNDERLYING FACTS, THE DEFENDANT HAS BEEN DENIED NO
RIGHTS PROTECTED BY THE SIXTH AND FOURTEENTH AMENDMENTS.  ACCORDINGLY,
THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE COURT OF
APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

IT IS SO ORDERED. 

/1/  THE SIXTH AMENDMENT TO THE CONSTITUTION PROVIDES THAT "(IN ALL
CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT . . . TO BE
CONFRONTED WITH THE WITNESSES AGAINST HIM.  . . ." 

/2/  SEE POINTER V. TEXAS, 380 U.S. 400; DOUGLAS V. ALABAMA, 380
U.S. 415. 

/3/  ROBERTS V. RUSSELL, 392 U.S. 293, HELD THAT THE DECISION IN
BRUTON V. UNITED STATES, 391 U.S. 123, IS APPLICABLE TO THE STATES AND
IS TO BE APPLIED RETROACTIVELY. 

/4/  BROOKHART V. JANIS, 384 U.S. 1; BARBER V. PAGE, 390 U.S. 719;
ROBERTS V. RUSSELL, 392 U.S. 293; HARRINGTON V. CALIFORNIA, 395 U.S.
250. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN IN THE OPINION AND JUDGMENT OF THE COURT.  I WOULD, HOWEVER,
GO FURTHER AND HOLD THAT, BECAUSE RESPONDENT'S CONVICTION BECAME FINAL
BEFORE THIS COURT DECIDED BRUTON V. UNITED STATES, 391 U.S. 123 (1968),
HE CANNOT AVAIL HIMSELF OF THAT NEW RULE IN SUBSEQUENT FEDERAL HABEAS
CORPUS PROCEEDINGS.  SEE MACKEY V. UNITED STATES, 401 U.S. 667, 675
(1971) (SEPARATE OPINION OF THIS WRITER).     IT IS DIFFICULT TO FATHOM
WHAT PUBLIC POLICY IS SERVED BY OPENING THE ALREADY OVERCROWDED FEDERAL
COURTS TO CLAIMS SUCH AS THESE.  RESPONDENT'S TRIAL AND APPEALS WERE,
AT THE TIME THEY OCCURRED, CONDUCTED IN A MANNER PERFECTLY CONSISTENT
WITH THEM-PREVAILING CONSTITUTIONAL NORMS.  A REVERSAL OF THE
CONVICTION NOW WOULD EITHER COMPEL THE STATE TO PLACE AN ALREADY ONCE
TRIED CASE AGAIN ON ITS CRIMINAL DOCKET, TO BE RETRIED ON SUBSTANTIALLY
THE SAME (BUT NOW MORE STALE) EVIDENCE OR ELSE FORCE THE STATE TO FORGO
ITS INTEREST IN ENFORCING IN THIS INSTANCE ITS CRIMINAL LAWS RELATING
TO KIDNAPING, ROBBERY, AND CAR THEFT BECAUSE OF THE DISAPPEARANCE OF
EVIDENCE.  CONVERSELY, IF FEDERAL HABEAS RELIEF IS DENIED ON THE
MERITS, AS IT NOW IS BY THIS COURT, THE ENERGIES OF THE FEDERAL COURTS
HAVE BEEN EXPENDED TO NO GOOD PURPOSE. 

TO JUSTIFY SUCH A SERIOUS INTERFERENCE WITH THE STATE'S POWERS TO
ENFORCE ITS CRIMINAL LAW AND THE ABILITY OF FEDERAL COURTS TO PROVIDE
FULL, FAIR, AND PROMPT HEARINGS TO THOSE WHO HAVE NO OTHER FORUM
AVAILABLE SHOULD REQUIRE THE PRESENCE OF A MOST SUBSTANTIAL
COUNTERVAILING SOCIETAL INTEREST.  BUT WHAT INTEREST IS CONCEIVABLY
PROMOTED BY FURTHER ADJUDICATION OF THE CONTENTIONS RESPONDENT URGES
UPON US?  SURELY, INDULGING HIS CLAIMS DOES NOT SERVE THE FUNCTION OF
ASSURING THAT STATE COURTS PROPERLY APPLY GOVERNING CONSTITUTIONAL
STANDARDS.  FOR THIS IS PRECISELY WHAT THE CALIFORNIA COURTS DID IN
THIS CARE.  SEE, E.G., DELLI PAOLI V. UNITED STATES, 352 U.S. 232
(1957).  NOR CAN IT PLAUSIBLY BE ARGUED THAT WE PERCEIVE IN THIS CASE
SERIOUS ISSUES AS TO WHETHER RESPONDENT WAS IN FACT LIKELY INNOCENT OF
THE CRIME FOR WHICH HE WAS CONVICTED OR WHETHER HE WAS SUBJECTED TO AN
INTOLERABLE ABUSE OF THE PROSECUTORIAL FUNCTION THAT RENDERED HIS TRIAL
FUNDAMENTALLY UNFAIR. 

THE ONLY RATIONAL I CAN IMAGINE THAT MIGHT SUPPORT ENTERTAINING
BRUTON CLAIMS IN FEDERAL HABEAS PROCEEDINGS BROUGHT BY STATE PRISONERS
WHOSE CONVICTIONS HAD BECOME FINAL PRIOR TO THE DECISION IN BRUTON AND
WHO HAD A FULL AND FAIR OPPORTUNITY TO LITIGATE THEIR CLAIMS AT TRIAL
AND ON APPEAL, IS THE NOTION THAT BRUTON IS SOMEHOW AN UNIMPEACHABLY
CORRECT DECISION, SO INFALLIBLY JUST THAT OTHER EARLIER DECISIONS
INCONSISTENT WITH IT MUST BE TREATED AS THOUGH THEY HAD NEVER BEEN
MADE.  EVEN WERE THIS A TENABLE POSITION, THE FACT IS, AS THE COURT
NOTES, THAT RESPONDENT IS ACTUALLY SEEKING AN EXTENSION OF THE BRUTON
HOLDING.  MORE IMPORTANTLY, FOR ME SUCH AN "INFALLIBILITY" ARGUMENT
COULD REST ON NOTHING MORE THAN THE FANCIFUL NOTION THAT PERCEPTION OF
ULTIMATE CONSTITUTIONAL VERITY IS ALWAYS TO BE FOUND IN THOSE WHO "CAME
AFTER" TO THIS COURT. 

SUCH A DRASTIC DISRUPTION OF JUDICIAL PROCESSES AND ALTERATION OF
OUR TRADITIONAL FEDERAL-STATE BALANCE SHOULD BE SUPPORTED BY MORE
PERSUASIVE CONSIDERATIONS THAN THOSE WHICH LED THE COURT IN ROBERTS V.
RUSSELL, 392 U.S. 293 (1968), TO HOLD THE BRUTON RULE FULLY
"RETROACTIVE" IN APPLICATION.  I VENTURE TO REPEAT WHAT I STATED
EARLIER THIS TERM IN MACKEY, SUPRA: 

"NO ONE, NOT CRIMINAL DEFENDANTS, NOT THE JUDICIAL SYSTEM, NOT
SOCIETY AS A WHOLE IS BENEFITED BY A JUDGMENT PROVIDING A MAN SHALL
TENTATIVELY GO TO JAIL TODAY, BUT TOMORROW AND EVERY DAY THEREAFTER HIS
CONTINUED INCARCERATION SHALL BE SUBJECT TO FRESH LITIGATION ON ISSUES
ALREADY RESOLVED."  401 U.S.,AT 667. 

I THINK IT UNFORTUNATE THAT SUBSTANTIAL FEDERAL JUDICIAL ENERGIES
HAVE BEEN EXPENDED, FOR VIRTUALLY NO PURPOSE AT ALL, ON THE
ADJUDICATION OF THIS HABEAS PROCEEDING.  SINCE THE COURT HAS DECIDED TO
ADDRESS THE MERITS OF RESPONDENT'S CONTENTIONS, HOWEVER, I UNRESERVEDLY
JOINT IN ITS RESOLUTION OF THEM. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

WITH ALL DEFERENCE, I THINK THE COURT ASKS AND ANSWERS THE WRONG
QUESTION IN THIS CASE.  UNDER THE LAW OF CALIFORNIA AT THE TIME OF
RESPONDENT'S TRIAL, ADMISSIONS TO A POLICE OFFICER BY A CRIMINAL
DEFENDANT AFTER HIS ARREST COULD NOT BE USED AS SUBSTANTIVE EVIDENCE
AGAINST OTHER DEFENDANTS, WHETHER OR NOT THE DECLARANT TESTIFIED AT
TRIAL.  /1/  THE QUESTION WITH WHICH WE ARE FACED IS NOT, THEREFORE,
WHETHER THE SIXTH AMENDMENT WOULD FORBID CALIFORNIA FROM USING RUNNELS'
STATEMENT AS SUBSTANTIVE EVIDENCE AGAINST RESPONDENT O'NEIL IF IT
CHOSE TO DO SO.  CALIFORNIA REJECTED THAT CHOICE:  THE JURY IN THE
PRESENT CASE WAS EXPLICITLY INSTRUCTED THAT RUNNELS' STATEMENT COULD
NOT BE CONSIDERED AS EVIDENCE AGAINST O'NEIL.  THE QUESTION, THEREFORE,
IS WHETHER CALIFORNIA, HAVING DETERMINED FOR WHATEVER REASON THAT THE
STATEMENT INVOLVED IN THIS CASE WAS INADMISSIBLE AGAINST RESPONDENT,
MAY NEVERTHELESS PRESENT THE STATEMENT TO THE JURY THAT WAS TO DECIDE
RESPONDENT'S GUILT, AND INSTRUCT THAT JURY THAT IT SHOULD NOT BE
CONSIDERED AGAINST RESPONDENT.  I THINK OUR CASES COMPEL THE CONCLUSION
THAT IT MAY NOT. 

IN BRUTON V. UNITED STATES, 391 U.S. 123 (1968), WE REVIEWED A
FEDERAL TRIAL IN WHICH THE EXTRAJUDICIAL CONFESSION OF ONE EVANS, WHICH
IMPLICATED BOTH EVANS AND BRUTON IN THE CRIME CHARGED, WAS SET BEFORE
THE JURY ALONG WITH INSTRUCTIONS THAT IT COULD BE CONSIDERED AS
EVIDENCE ONLY AGAINST EVANS.  EVANS HIMSELF DID NOT TESTIFY.  WE HELD,
FIRST, THAT THE SIXTH AMENDMENT IN THOSE CIRCUMSTANCES FORBADE THE USE
AGAINST BRUTON OF EVANS' STATEMENT; AND SECOND, THAT SINCE THERE WAS A
"SUBSTANTIAL RISK THAT THE JURY, DESPITE INSTRUCTIONS TO THE CONTRARY,
LOOKED TO THE INCRIMINATING EXTRAJUDICIAL STATEMENTS IN DETERMINING
(BRUTON'S) GUILT," THE SIXTH AMENDMENT REQUIRED THAT BRUTON'S
CONVICTION BE REVERSED.  ID., AT 126. 

SHORTLY THEREAFTER, WE MADE CLEAR THAT THE SECOND PRONG OF OUR
HOLDING IN BRUTON-- THAT INSTRUCTING JURIES NOT TO USE ONE DEFENDANT'S
ADMISSIONS AGAINST THE OTHER COULD NOT, IN FACT, PREVENT THEM FROM
MAKING SUCH A USE-- HAD A CONSTITUTIONAL BASIS.  /2/  IN ROBERTS V.
RUSSELL, 392 U.S. 293 (1968), WE REVIEWED A STATE CRIMINAL TRIAL
PRESENTING FACTS SUBSTANTIALLY IDENTICAL TO THOSE PRESENTED IN BRUTON. 
ROBERTS AND ONE RAPPE HAD BEEN JOINTLY TRIED ON CHARGES TO WHICH RAPPE
HAD CONFESSED TO A POLICE OFFICER.  RAPPE'S CONFESSION IMPLICATED BOTH
HIMSELF AND ROBERTS; IT WAS PRESENTED TO THE JURY TOGETHER WITH
INSTRUCTIONS THAT RAPPE'S EXTRAJUDICIAL STATEMENTS COULD BE CONSIDERED
AS EVIDENCE ONLY AGAINST RAPPE, AND NOT AGAINST ROBERTS.  AS IN BRUTON,
WE REVERSED.  ROBERTS V. RUSSELL, THEREFORE, MUST STAND FOR THE
PROPOSITION THAT AS A CONSTITUTIONAL MATTER, THE RISK THAT A JURY WILL
NOT FOLLOW INSTRUCTIONS TO DISREGARD THE STATEMENTS OF ONE CODEFENDANT
AGAINST ANOTHER IS TOO GREAT TO TOLERATE IN A CRIMINAL TRIAL.  FOR, AS
WE POINTED OUT IN BRUTON, "IF IT WERE TRUE THAT THE JURY DISREGARDED
THE REFERENCE TO THE CODEFENDANT, NO QUESTION WOULD ARISE UNDER THE
CONFRONTATION CLAUSE, BECAUSE BY HYPOTHESIS THE CASE IS TREATED AS IF
THE CONFESSOR MADE NO STATEMENT INCULPATING THE NONCONFESSOR."  391
U.S.,AT 126. 

BRUTON AND ROBERTS, THEREFORE, COMPEL THE CONCLUSION THAT THE FEDERAL
CONSTITUTION FORBIDS THE STATES TO ASSUME THAT JURIES CAN FOLLOW
INSTRUCTIONS THAT TELL THEM TO WIPE THEIR MINDS OF HIGHLY DAMAGING,
INCRIMINATING ADMISSIONS OF ONE DEFENDANT THAT SIMULTANEOUSLY
INCRIMINATE ANOTHER DEFENDANT WHOSE GUILT OR INNOCENCE THE JURY IS TOLD
TO DECIDE.  IN THE PRESENT CASE, CALIFORNIA ITSELF HAS MADE THE
JUDGMENT THAT, ALTHOUGH RUNNELS DID TAKE THE STAND, HIS EXTRAJUDICIAL
STATEMENTS COULD NOT BE CONSIDERED AS EVIDENCE AGAINST O'NEIL MAY NOT
SUBVERT ITS OWN JUDGMENT IN SOME BUT NOT ALL CASES BY PRESENTING THE
INADMISSIBLE EVIDENCE TO THE JURY AND TELLING THE JURY TO DISREGARD IT.
FOR THE INEVITABLE RESULT OF THIS PROCEDURE IS THAT, IN FACT,
DIFFERENT RULES OF EVIDENCE WILL BE APPLIED TO DIFFERENT DEFENDANTS
DEPENDING SOLELY UPON THE FORTUITY OF WHETHER THEY ARE JOINTLY OR
SEPARATELY TRIED.  THIS IS A DISCRMINATION THAT THE CONSTITUTION
FORBIDS. 

ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT BELOW.  IN NO EVENT,
HOWEVER, WOULD I REACH THE QUESTION DECIDED BY THE COURT IN THIS CASE. 
FOR IF WE ASSUME THAT THE JURY DID FOLLOW ITS INSTRUCTIONS TO DISREGARD
RUNNELS' STATEMENT AGAINST RESPONDENT, HIS COMPLAINT IS OBVIOUSLY
WITHOUT FOUNDATION.  IF WE ASSUME THAT IT DID NOT, WE STILL NEED NOT
REACH THE QUESTION WHETHER CALIFORNIA COULD CONSTITUTIONALLY ALLOW
RUNNELS' STATEMENTS TO BE USED AS EVIDENCE AGAINST RESPONDENT, FOR
CALIFORNIA HAS NOT PURPORTED TO DO SO.  /3/  HAVING MADE THAT JUDGMENT,
CALIFORNIA IS BOUND TO APPLY IT TO ALL DEFENDANTS OR TO NONE.  I
DISSENT. 

/1/  SEE PEOPLE V. ARANDA, 63 CAL.2D 518, 407 P.2D 265 (1965);
PEOPLE V. ROBERTS, 40 CAL.2D 483, 254 P.2D 501 (1953).  THE CALIFORNIA
EVIDENCE CODE, PRESENTLY IN EFFECT, DID NOT BECOME OPERATIVE UNTIL
JANUARY 1, 1967. 

/2/  THIS POINT WAS EXPLICITLY MADE IN BRUTON ITSELF BY MR. JUSTICE
STEWART: 

"(CERTAIN KINDS OF HEARSAY . . . ARE AT ONCE SO DAMAGING, SO SUSPECT,
AND YET SO DIFFICULT TO DISCOUNT, THAT JURORS CANNOT BE TRUSTED TO GIVE
SUCH EVIDENCE THE MINIMAL WEIGHT IT LOGICALLY DESERVES, WHATEVER
INSTRUCTIONS THE TRIAL JUDGE MIGHT GIVE."  391 U.S.,AT 138 (CONCURRING
OPINION). 

/3/  SEE N. 1, SUPRA. 

MR. JUSTICE MARSHALL, DISSENTING. 

THIS CASE DRAMATICALLY ILLUSTRATES THE NEED FOR THE ADOPTION OF NEW
RULES REGULATING THE USE OF JOINT TRIALS.  HERE THERE IS NO QUESTION
THAT RUNNELS' ALLEGED STATEMENT TO THE POLICE WAS NOT ADMISSIBLE UNDER
STATE LAW AGAINST O'NEIL.  BUT AS MY BROTHER BRENNAN POINTS OUT AND AS
THIS COURT RECOGNIZED IN BRUTON V. UNITED STATES, 391 U.S. 123 (1968),
THERE IS A VERY REAL DANGER THAT THE STATEMENT WAS IN FACT USED AGAINST
O'NEIL. 

THOSE THAT ARGUE FOR THE USE OF JOINT TRIALS CONTEND THAT JOINT
TRIALS, ALTHOUGH OFTEN RESULTING IN PREJUDICE TO RECOGNIZED RIGHTS OF
ONE OR MORE OF THE CODEFENDANTS, ARE JUSTIFIED BECAUSE OF THE SAVING OF
TIME, MONEY, AND ENERGY THAT RESULT.  BUT, AS THIS CASE SHOWS, MUCH OF
THE SUPPOSED SAVING IS LOST THROUGH PROTRACTED LITIGATION THAT RESULTS
FROM THE IMPINGEMENT OR NEAR IMPINGEMENT ON A CODEFENDANT'S RIGHTS OF
CONFRONTATION AND EQUAL PROTECTION. 

THE AMERICAN BAR ASSOCIATION'S PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, ADVISORY COMMITTEE ON THE CRIMINAL TRIAL, SUGGESTED THAT IF A
DEFENDANT IN A JOINT TRIAL MOVES FOR A SEVERANCE BECAUSE THE PROSECUTOR
INTENDS TO INTRODUCE AN OUT-OF-COURT STATEMENT BY HIS CODEFENDANT THAT
IS INADMISSIBLE AGAINST THE MOVING DEFENDANT, THEN THE TRIAL COURT
SHOULD REQUIRE THE PROSECUTOR TO ELECT BETWEEN A JOINT TRIAL IN WHICH
THE STATEMENT IS EXCLUDED; A JOINT TRIAL AT WHICH THE STATEMENT IS
ADMITTED BUT THE PORTION THAT REFERS TO THE MOVING DEFENDANT IS
EFFECTIVELY DELETED; AND SEVERANCE.  /1/  I BELIEVE THAT THE ADOPTION
OF SUCH A PRACTICE IS THE ONLY WAY IN WHICH THE RECURRING PROBLEMS OF
CONFRONTATION AND EQUAL PROTECTION CAN BE ELIMINATED. 

/1/  SECTION 2.3 OF THE AMERICAN BAR ASSOCIATION PROJECT ON
STANDARDS FOR CRIMINAL JUSTICE, JOINDER AND SEVERANCE (APPROVED DRAFT
1968) PROVIDES: 

"SEVERANCE OF DEFENDANTS. 

"(A) WHEN A DEFENDANT MOVES FOR A SEVERANCE BECAUSE AN OUT-OF-COURT
STATEMENT OF A CODEFENDANT MAKES REFERENCE TO HIM BUT IS NOT ADMISSIBLE
AGAINST HIM, THE COURT SHOULD DETERMINE WHETHER THE PROSECUTION INTENDS
TO OFFER THE STATEMENT IN EVIDENCE AT THE TRIAL.  IF SO, THE COURT
SHOULD REQUIRE THE PROSECUTING ATTORNEY TO ELECT ONE OF THE FOLLOWING
COURSES: 

"(I) A JOINT TRIAL AT WHICH THE STATEMENT IS NOT ADMITTED INTO
EVIDENCE; 

"(II) A JOINT TRIAL AT WHICH THE STATEMENT IS ADMITTED INTO EVIDENCE
ONLY AFTER ALL REFERENCES TO THE MOVING DEFENDANT HAVE BEEN EFFECTIVELY
DELETED; OR 

"(III) SEVERANCE OF THE MOVING DEFENDANT." 

CHARLES R. B. KIRK, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE EVELLE J.
YOUNGER, ATTORNEY GENERAL, ALBERT W. HARRIS, JR., ASSISTANT ATTORNEY
GENERAL, AND JOHN T. MURPHY, DEPUTY ATTORNEY GENERAL. 

JAMES S. CAMPBELL, BY APPOINTMENT OF THE COURT, 400 U.S. 955, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :



PEREZ V. CAMPBELL, 402 U.S. 637 


       PEREZ ET UX. V. CAMPBELL, SUPERINTENDENT, MOTOR VEHICLES

           DIVISION, ARIZONA HIGHWAY DEPARTMENT, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 5175.  ARGUED JANUARY 19, 1971-- DECIDED JUNE 1, 1971 


THE PROVISION THAT "DISCHARGE IN BANKRUPTCY FOLLOWING THE RENDERING
OF ANY SUCH JUDGMENT (AS A RESULT OF AN AUTOMOBILE ACCIDENT) SHALL NOT
RELIEVE THE JUDGMENT DEBTOR FROM ANY OF THE REQUIREMENTS OF THIS
ARTICLE," CONTAINED IN ARIZ. REV. STAT. SEC. 28-1163(B), PART OF THE
MOTOR VEHICLE SAFETY RESPONSIBILITY ACT, WHICH THE ARIZONA COURTS HAVE
CONSTRUED AS HAVING AS "ITS PRINCIPAL PURPOSE THE PROTECTION OF THE
PUBLIC USING THE HIGHWAYS FROM FINANCIAL HARDSHIP WHICH MAY RESULT FROM
THE USE OF AUTOMOBILES BY FINANCIALLY IRRESPONSIBLE PERSONS," DIRECTLY
CONFLICTS WITH SEC. 17 OF THE BANKRUPTCY ACT, WHICH STATES THAT A
DISCHARGE IN BANKRUPTCY FULLY DISCHARGES ALL BUT CERTAIN SPECIFIED
JUDGMENTS, AND IS THUS UNCONSTITUTIONAL AS VIOLATIVE OF THE SUPREMACY
CLAUSE.  KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369 U.S. 153, AND REITZ
V. MEALEY, 314 U.S. 33, HAVE NO AUTHORITATIVE EFFECT TO THE EXTENT THEY
ARE INCONSISTENT WITH THE CONTROLLING PRINCIPLE THAT STATE LEGISLATION
THAT FRUSTRATES THE FULL EFFECTIVENESS OF FEDERAL LAW IS INVALIDATED BY
THE SUPREMACY CLAUSE.  PP. 644-656. 

421 F.2D 619, REVERSED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BLACK,
DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED AN
OPINION CONCURRING IN THE RESULT AS TO PETITIONER EMMA PEREZ AND
DISSENTING AS TO PETITIONER ADOLFO PEREZ, IN WHICH BURGER, C.J., AND
HARLAN AND STEWART, JJ., JOINED, POST, P. 657. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES AN IMPORTANT ISSUE CONCERNING THE CONSTRUCTION OF
THE SUPREMACY CLAUSE OF THE CONSTITUTION-- WHETHER ARIZ. REV. STAT.
ANN. SEC. 28-1163(B) (1956), WHICH IS PART OF ARIZONA'S MOTOR VEHICLE
SAFETY RESPONSIBILITY ACT, IS INVALID UNDER THAT CLAUSE AS BEING IN
CONFLICT WITH THE MANDATE OF SEC. 17 OF THE BANKRUPTCY ACT, 11 U.S.C.
35, PROVIDING THAT RECEIPT OF A DISCHARGE IN BANKRUPTCY FULLY
DISCHARGES ALL BUT CERTAIN SPECIFIED JUDGMENTS.  THE COURTS BELOW,
CONCLUDING THAT THIS CASE WAS CONTROLLED BY KESLER V. DEPARTMENT OF
PUBLIC SAFETY, 369 U.S. 153 (1962), AND REITZ V. MEALEY, 314 U.S. 33
(1941), TWO EARLIER OPINIONS OF THIS COURT DEALING WITH ALLEGED
CONFLICTS BETWEEN THE BANKRUPTCY ACT AND STATE FINANCIAL RESPONSIBILITY
LAWS, RULED AGAINST THE CLAIM OF CONFLICT AND UPHELD THE ARIZONA
STATUTE. 

ON JULY 8, 1955, PETITIONER ADOLFO PEREZ, DRIVING A CAR REGISTERED
IN HIS NAME, WAS INVOLVED IN AN AUTOMOBILE ACCIDENT IN TUCSON,
ARIZONA.  THE PEREZ AUTOMOBILE WAS NOT COVERED BY LIABILITY INSURANCE
AT THE TIME OF THE COLLISION.  THE DRIVER OF THE SECOND CAR WAS THE
MINOR DAUGHTER OF LEONARD PINKERTON, AND IN SEPTEMBER 1966 THE
PINKERTONS SUED MR. AND MRS. PEREZ IN STATE COURT FOR PERSONAL INJURIES
AND PROPERTY DAMAGE SUSTAINED IN THE ACCIDENT.  ON OCTOBER 31, 1967,
THE PETITIONERS CONFESSED JUDGMENT IN THIS SUIT, AND A JUDGMENT ORDER
WAS ENTERED AGAINST THEM ON NOVEMBER 8, 1967, FOR $2,425.98 PLUS COURT
COSTS. 

MR. AND MRS. PEREZ EACH FILED A VOLUNTARY PETITION IN BANKRUPTCY IN
FEDERAL DISTRICT COURT ON NOVEMBER 6, 1967.  EACH OF THEM DULY
SCHEDULED THE JUDGMENT DEBT TO THE PINKERTONS.  THE DISTRICT COURT
ENTERED ORDERS ON JULY 8, 1968, DISCHARGING BOTH MR. AND MRS. PEREZ
FROM ALL DEBTS AND CLAIMS PROVABLE AGAINST THEIR ESTATES, INCLUDING THE
PINKERTON JUDGMENT.  11 U.S.C. 35; LEWIS V. ROBERTS, 267 U.S. 467
(1925). 

DURING THE PENDENCY OF THE BANKRUPTCY PROCEEDINGS, THE PROVISIONS OF
THE ARIZONA MOTOR VEHICLE SAFETY RESPONSIBILITY ACT CAME INTO PLAY. 
ALTHOUGH ONLY ONE PROVISION OF THE ARIZONA ACT IS RELEVANT TO THE ISSUE
PRESENTED BY THIS CASE, IT IS APPROPRIATE TO DESCRIBE THE STATUTORY
SCHEME IN SOME DETAIL.  THE ARIZONA STATUTE IS BASED ON THE UNIFORM
MOTOR VEHICLE SAFETY RESPONSIBILITY ACT PROMULGATED BY THE NATIONAL
CONFERENCE ON STREET AND HIGHWAY SAFETY.  /1/  ARTICLES 1 AND 2 OF THE
ACT DEAL, RESPECTIVELY, WITH DEFINITIONAL MATTERS AND ADMINISTRATION. 

THE SUBSTANTIVE PROVISIONS BEGIN IN ART. 3, WHICH REQUIRES THE
POSTING OF FINANCIAL SECURITY BY THOSE INVOLVED IN ACCIDENTS.  SECTION
28-1141 OF THAT ARTICLE REQUIRES SUSPENSION OF LICENSES FOR UNLAWFUL
FAILURE TO REPORT ACCIDENTS, AND SEC. 28-1142 (SUPP. 1970-1971)
PROVIDES THAT WITHIN 60 DAYS OF THE RECEIPT OF AN ACCIDENT REPORT THE
SUPERINTENDENT OF THE MOTOR VEHICLE DIVISION OF THE HIGHWAY DEPARTMENT
SHALL SUSPEND THE DRIVER'S LICENSE OF THE OPERATOR AND THE REGISTRATION
OF THE OWNER OF A CAR INVOLVED IN AN ACCIDENT "UNLESS SUCH OPERATOR OR
OWNER OR BOTH SHALL DEPOSIT SECURITY IN A SUM WHICH IS SUFFICIENT IN
THE JUDGMENT OF THE SUPERINTENDENT TO SATISFY THE ACCIDENT AS MAY BE
RECOVERED AGAINST THE OPERATOR OR OWNER."  UNDER THE SAME SECTION,
NOTICE OF SUCH SUSPENSION AND THE AMOUNT OF SECURITY REQUIRED MUST BE
SENT TO THE OWNER AND OPERATOR NOT LESS THAN 10 DAYS PRIOR TO THE
EFFECTIVE DATE OF THE SUSPENSION.  THIS SECTION DOES NOT APPLY IF THE
OWNER OR THE OPERATOR CARRIED LIABILITY INSURANCE OR SOME OTHER
COVERING BOND AT THE TIME OF THE ACCIDENT, OR IF SUCH INDIVIDUAL HAD
PREVIOUSLY QUALIFIED AS A SELF-INSURER UNDER SEC. 28-1222.  OTHER
EXCEPTIONS TO THE REQUIREMENT THAT SECURITY BE POSTED ARE STATED IN
SEC. 28-1143.  /2/  IF NONE OF THESE EXCEPTIONS APPLIES, THE SUSPENSION
CONTINUES UNTIL:  (1) THE PERSON WHOSE PRIVILEGES WERE SUSPENDED
DEPOSITS THE SECURITY REQUIRED UNDER SEC. 28-1142 (SUPP. 1970-1971);
(2) ONE YEAR ELAPSES FROM THE DATE OF THE ACCIDENT AND THE PERSON WHOSE
PRIVILEGES WERE SUSPENDED FILES PROOF WITH THE SUPERINTENDENT THAT NO
ONE HAS INITIATED AN ACTION FOR DAMAGES ARISING FROM THE ACCIDENT; (3)
EVIDENCE IS FILED WITH THE SUPERINTENDENT THAT A RELEASE FROM
LIABILITY, AN ADJUDICATION OF NONLIABILITY, A CONFESSION OF JUDGMENT,
OR SOME OTHER WRITTEN SETTLEMENT AGREEMENT HAS BEEN ENTERED.  /3/  AS
FAR AS THE RECORD IN THE INSTANT CASE SHOWS, THE PROVISION OF ART. 3
WERE NOT INVOKED AGAINST PETITIONERS, AND THE CONSTITUTIONAL VALIDITY
OF THESE PROVISIONS IS, OF COURSE, NOT BEFORE US FOR DECISION. 

ARTICLE 4 OF THE ARIZONA ACT, WHICH INCLUDES THE ONLY PROVISION AT
ISSUE HERE, DEALS WITH SUSPENSION OF LICENSES AND REGISTRATIONS FOR
NONPAYMENT OF JUDGMENTS.  INTERESTINGLY, IT IS ONLY WHEN THE JUDGMENT
DEBTOR IN AN AUTOMOBILE ACCIDENT LAWSUIT-- USUALLY AN OWNER-OPERATOR
LIKE MR. PEREZ-- FAILS TO RESPOND TO A JUDGMENT ENTERED AGAINST HIM
THAT HE MUST OVERCOME TWO HURDLES IN ORDER TO REGAIN HIS DRIVING
PRIVILEGES.  SECTION 28-1161, THE FIRST SECTION OF ART. 4, REQUIRES THE
STATE COURT CLERK OR JUDGE, WHEN A JUDGMENT /4/  HAS REMAINED
UNSATISFIED FOR 60 DAYS AFTER ENTRY, TO FORWARD A CERTIFIED COPY OF THE
JUDGMENT TO THE SUPERINTENDENT.  /5/  THIS WAS DONE IN THE PRESENT
CASE, AND ON MARCH 13, 1968, MR. AND MRS. PEREZ WERE SERVED WITH NOTICE
THAT THEIR DRIVERS' LICENSES AND REGISTRATION WERE SUSPENDED PURSUANT
TO SEC. 28-1162(A).  /6/  UNDER OTHER PROVISIONS OF ART. 4, SUCH
SUSPENSION IS TO CONTINUE UNTIL THE JUDGMENT IS PAID, /7/  AND SEC. 28
1163(B) SPECIFICALLY PROVIDES THAT "(A) DISCHARGE IN BANKRUPTY
FOLLOWING THE RENDERING OF ANY SUCH JUDGMENT SHALL NOT RELIEVE THE
JUDGMENT DEBTOR FROM ANY OF THE REQUIREMENTS OF THIS ARTICLE."  IN
ADDITION TO REQUIRING SATISFACTION OF THE JUDGMENT DEBT, SEC. 28
1163(A) PROVIDES THAT THE LICENSE AND REGISTRATION "SHALL REMAIN
SUSPENDED AND SHALL NOT BE RENEWED, NOR SHALL ANY LICENSE OR
REGISTRATION BE THEREAFTER ISSUED IN THE NAME OF THE PERSON . . . UNTIL
THE PERSON GIVES PROOF OF FINANCIAL RESPONSIBILITY" FOR A FUTURE
PERIOD.  /8/  AGAIN, THE VALIDITY OF THIS LIMITED REQUIREMENT THAT SOME
DRIVERS POST EVIDENCE OF FINANCIAL RESPONSIBILITY FOR THE FUTURE IN
ORDER TO REGAIN DRIVING PRIVILEGES IS NOT QUESTIONED HERE.  NOR IS THE
BROADER ISSUE OF WHETHER A STATE MAY REQUIRE PROOF OF FINANCIAL
RESPONSIBILITY AS A PRECONDITION FOR GRATING DRIVING PRIVILEGES TO
ANYONE BEFORE US FOR DECISION.  WHAT IS AT ISSUE HERE IS THE POWER OF A
STATE TO INCLUDE AS PART OF THIS COMPREHENSIVE ENACTMENT DESIGNED TO
SECURE COMPENSATION FOR AUTOMOBILE ACCIDENT VICTIMS A SECTION PROVIDING
THAT A DISCHARGE IN BANKRUPTCY OF THE AUTOMOBILE ACCIDENT TORT JUDGMENT
SHALL HAVE NO EFFECT ON THE JUDGMENT DEBTOR'S OBLIGATION TO REPAY THE
JUDGMENT CREDITOR, AT LEAST INSOFAR AS SUCH REPAYMENT MAY BE ENFORCED
BY THE WITHHOLDING OF DRIVING PRIVILEGES BY THE STATE.  IT WAS THAT
QUESTION, AMONG OTHERS, WHICH PETITIONERS RAISED AFTER SUSPENSION OF
THEIR LICENSES AND REGISTRATION BY FILING A COMPLAINT IN FEDERAL
DISTRICT COURT SEEKING DECLARATORY AND INJUNCTIVE RELIEF AND REQUESTING
A THREE-JUDGE COURT.  THEY ASSERTED SEVERAL CONSTITUTIONAL VIOLATIONS,
AND ALSO ALLEGED THAT SEC. 28-1163(B) WAS IN DIRECT CONFLICT WITH THE
BANKRUPTCY ACT AND WAS THUS VIOLATIVE OF THE SUPREMACY CLAUSE OF THE
CONSTITUTION.  /9/  IN SUPPORT OF THEIR COMPLAINT, MR. AND MRS. PEREZ
FILED AFFIDAVITS STATING THAT THE SUSPENSION OF THEIR LICENSES AND
REGISTRATION WORKED BOTH PHYSICAL AND FINANCIAL HARDSHIP UPON THEM AND
THEIR CHILDREN.  THE DISTRICT JUDGE GRANTED THE PETITIONERS LEAVE TO
PROCEED IN FORMA PAUPERIS, BUT THEREAFTER GRANTED THE RESPONDENTS'
MOTION TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF COULD BE GRANTED, CITING KESLER AND REITZ.  /10/  THE COURT OF
APPEALS AFFIRMED, RELYING ON THE SAME TWO DECISIONS.  421 F.2D 619 (CA9
1970).  WE GRANTED CERTIORARI.  400 U.S. 818 (1970). 

        I 

DECIDING WHETHER A STATE STATUTE IS IN CONFLICT WITH A FEDERAL
STATUTE AND HENCE INVALID UNDER THE SUPREMACY CLAUSE IS ESSENTIALLY A
TWO-STEP PROCESS OF FIRST ASCERTAINING THE CONSTRUCTION OF THE TWO
STATUTES AND THEN DETERMINING THE CONSTITUTIONAL QUESTION WHETHER THEY
ARE IN CONFLICT.  IN THE PRESENT CASE, BOTH STATUTES HAVE BEEN
AUTHORITATIVELY CONSTRUED.  IN SCHECTER V. KILLINGSWORTH, 93 ARIZ. 273,
380 P.2D 136 (1963), THE SUPREME COURT OF ARIZONA HELD THAT "(THE
FINANCIAL RESPONSIBILITY ACT HAS FOR ITS PRINCIPAL PURPOSE THE
PROTECTION OF THE PUBLIC USING THE HIGHWAYS FROM FINANCIAL HARDSHIP
WHICH MAY RESULT FROM THE USE OF AUTOMOBILES BY FINANCIALLY RESPONSIBLE
PERSONS."  93 ARIZ.,AT 180, 380 P.2D, AT 140.  THE ARIZONA COURT HAS
CONSISTENTLY ADHERED TO THIS CONSTRUCTION OF ITS LEGISLATION, SEE
CAMACHO V. GARDNER, 104 ARIZ. 555, 558, 456 P.2D 925, 928 (1969); NEW
YORK UNDERWRITERS INS. CO. V. SUPERIOR COURT, 104 ARIZ. 544, 456 P.2D
914 (1969); SANDOVAL V. CHENOWETH, 102 ARIZ. 241, 243, 428 P.2D 98, 100
(1967); FARMER V. KILLINGSWORTH, 102 ARIZ. 44, 47, 424 P.2D 172, 175
(1967); HASTINGS V. THURSTON, 100 ARIZ. 302, 306, 413 P.2D 767, 770
(1966); JENKINS V. MAYFLOWER INS. EXCHANGE, 93 ARIZ. 287, 290, 380 P.2D
145, 147 (1963), AND WE ARE BOUND BY ITS RULINGS.  SEE, E.G., GENERAL
TRADING CO. V. STATE TAX COMM'N, 322 U.S. 335, 337 (1944).  ALTHOUGH
THE DISSENT SEEMS UNWILLING TO ACCEPT THE ARIZONA SUPREME COURT'S
CONSTRUCTION OF THE STATUTE AS EXPRESSIVE OF THE ACT'S PRIMARY PURPOSE
/11/  AND INDEED CHARACTERIZES THAT CONSTRUCTION AS UNFORTUNATE, POST,
AT 667, A READING OF THE PROVISIONS OUTLINED ABOVE LEAVES THE
IMPRESSION THAT THE ARIZONA COURT'S DESCRIPTION OF THE STATUTORY
PURPOSE IS NOT ONLY LOGICAL BUT PERSUASIVE.  THE SOLE EMPHASIS IN THE
ACT IS ONE OF PROVIDING LEVERAGE FOR THE COLLECTION OF DAMAGES FROM
DRIVERS WHO EITHER ADMIT THAT THEY ARE AT FAULT OR ARE ADJUDGED
NEGLIGENT.  THE VICTIM OF ANOTHER DRIVER'S CARELESSNESS, IF HE SO
DESIRES, CAN EXCLUDE THE SUPERINTENDENT ENTIRELY FROM THE PROCESS OF
"DETERRING" A REPETITION OF THAT DRIVER'S NEGLIGENCE.  /12/  FURTHER,
IF AN ACCIDENT IS LITIGATED AND A SPECIAL VERDICT THAT THE DEFENDANT
WAS NEGLIGENT AND THE PLAINTIFF CONTRIBUTORILY NEGLIGENT IS ENTERED,
THE RESULT IN ARIZONA, AS IN MANY OTHER STATES, IS THAT THERE IS NO
LIABILITY FOR DAMAGES ARISING FROM THE ACCIDENT.  HEIMKE V. MUNOZ, 106
ARIZ. 26, 470 P.2D 107 (1970); MCDOWELL V. DAVIS, 104 ARIZ. 69, 448
P.2D 869 (1968).  UNDER THE SAFETY RESPONSIBILITY ACT, THE APPARENT
RESULT OF SUCH A JUDGMENT IS THAT NO CONSEQUENCES ARE VISITED UPON
EITHE DRIVER ALTHOUGH BOTH HAVE BEEN FOUND TO HAVE DRIVEN CARELESSLY. 
SEE ARIZ. REV. STAT. ANN. SECS. 28-1143(A)(4), 28-1144(3).  MOREOVER,
THERE ARE NO PROVISIONS REQUIRING DRIVERS PROVED TO BE CARELESS TO STAY
OFF THE ROADS FOR A PERIOD OF TIME.  NOR ARE THERE PROVISIONS REQUIRING
DRIVERS WHO HAVE CAUSED ACCIDENTS TO ATTEND SOME KIND OF DRIVER
IMPORVEMENT COURSE, A TECHNIQUE THAT IS NOT UNFAMILIAR IN SENTENCING
FOR TRAFFIC OFFENSES. 

TURNING TO THE FEDERAL STATUTE, THE CONSTRUCTION OF THE BANKRUPTCY
ACT IS SIMILARLY CLEAR.  THIS COURT ON NUMEROUS OCCASIONS HAS STATED
THAT "(ONE OF THE PRIMARY PURPOSES OF THE BANKRUPTCY ACT" IS TO GIVE
DEBTORS "A NEW OPPORTUNITY IN LIFE AND A CLEAR FIELD FOR FUTURE EFFORT,
UNHAMPERED BY THE PRESSURE AND DISCOURAGEMENT OF PREEXISTING DEBT." 
LOCAL LOAN CO. V. HUNT, 292 U.S. 234, 244 (1934).  ACCORD, E.G., HARRIS
V. ZION'S SAVINGS BANK & TRUST CO., 317 U.S. 447, 451 (1943);
STELLWAGEN V. CLUM, 245 U.S. 605, 617 (1918); WILLIAMS V. UNITED STATES
FIDELITY & GUARANTY CO., 236 U.S. 549, 554-555 (1915).  THERE CAN BE NO
DOUBT, GIVEN LEWIS V. ROBERTS, 267 U.S. 467 (1925), THAT CONGRESS
INTENDED THIS "NEW OPPORTUNITY" TO INCLUDE FREEDOM FROM MOST KINDS OF
PRE-EXISTING TORT JUDGMENTS. 

        II 

WITH THE CONSTRUCTION OF BOTH STATUTES CLEARLY ESTABLISHED, WE
PROCEED IMMEDIATELY TO THE CONSTITUTIONAL QUESTION WHETHER A STATE
STATUTE THAT PROTECTS JUDGMENT CREDITORS FROM "FINANCIALLY
IRRESPONSIBLE PERSONS" IS IN CONFLICT WITH A FEDERAL STATUTE THAT GIVES
DISCHARGED DEBTORS A NEW START "UNHAMPERED BY THE PRESSURE AND
DISCOURAGEMENT OF PREEXISTING DEBT."  AS EARLY AS GIBBONS V. OGDEN, 9
WHEAT.  1 (1824), CHIEF JUSTICE MARSHALL STATED THE GOVERNING PRINCIPLE
- THAT "ACTS OF THE STATE LEGISLATURES . . . (WHICH) INTERFERE WITH, OR
ARE CONTRARY TO THE LAWS OF CONGRESS, MADE IN PURSUANCE OF THE
CONSTITUTION," ARE INVALID UNDER THE SUPREMACY CLAUSE.  ID., AT 211. 
THREE DECADES AGO MR. JUSTICE BLACK, AFTER REVIEWING THE PRECEDENTS,
WROTE IN A SIMILAR VEIN THAT, WHILE "(THIS COURT, IN CONSIDERING THE
VALIDITY OF STATE LAWS IN THE LIGHT OF TREATIES OR FEDERAL LAWS
TOUCHING THE SAME SUBJECT, HAD) MADE USE OF THE FOLLOWING EXPRESSIONS:
CONFLICTING; CONTRARY TO; OCCUPYING THE FIELD; REPUGNANCE; DIFFERENCE;
IRRECONCILABILITY; INCONSISTENCY; VIOLATION; CURTAILMENT; AND
INTERFERENCE(,) . . . (IN THE FINAL ANALYSIS," OUR FUNCTION IS TO
DETERMINE WHETHER A CHALLENGED STATE STATUTE "STANDS AS AN OBSTACLE TO
THE ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF
CONGRESS."  HINES V. DAVIDOWITZ, 312 U.S. 52, 67 (1941).  SINCE HINES
THE COURT HAS FREQUENTLY ADHERED TO THIS ARTICULATION OF THE MEANING OF
THE SUPREMACY CLAUSE.  SEE, E.G. NASH V. FLORIDA INDUSTRIAL COMM'N, 389
U.S. 235, 240 (1967); SEARS, ROEBUCK & CO. V. STIFFEL CO., 376 U.S.
225, 229 (1964); COLORADO ANTI-DISCRIMINATION COMM'N V. CONTINENTAL AIR
LINES, INC., 372 U.S. 714, 722 (1963) (DICTUM); FREE V. BLAND, 369 U.S.
663, 666 (1962); HILL V. FLORIDA, 325 U.S. 538, 542-543 (1945); SOLA
ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S. 173, 176 (1942). 
INDEED, IN FLORIDA LIME & AVOCADO GROWERS, INC. V. PAUL, 373 U.S. 132
(1963), A RECENT CASE IN WHICH THE COURT WAS CLOSELY DIVIDED, ALL NINE
JUSTICES ACCEPTED THE HINES TEST.  ID., AT 141 (OPINION OF THE COURT),
165 (DISSENTING OPINION).     BOTH KESLER /13/  AND REITZ, HOWEVER,
IGNORED THIS CONTROLLING PRINCIPLE.  THE COURT IN KESLER CONCEDED THAT
UTAH'S FINANCIAL RESPONSIBILITY LAW LEFT "THE BANKRUPT TO SOME EXTENT
BURDENED BY THE DISCHARGED DEBT," 369 U.S.,AT 171, MADE "IT MORE
PROBABLY THAT THE DEBT WILL BE PAID DESPITE THE DISCHARGE," ID., AT
173, AND THEREBY MADE "SOME INROAD . . . ON THE CONSEQUENCES OF
BANKRUPTCY.  . . ."  ID., AT 171.  UTAH'S STATUTE, IN SHORT, FRUSTRATED
CONGRESS' OLICY OF GIVING DISCHARGED DEBTORS A NEW START.  BUT THE
KESLER MAJORITY WAS NOT CONCERNED BY THIS FRUSTRATION.  IN UPHOLDING
THE STATUTE, THE MAJORITY OPINION DID NOT LOOK TO THE EFFECT OF THE
LEGISLATION BUT SIMPLY ASSERTED THAT THE STATUTE WAS "NOT AN ACT FOR
THE RELIEF OF MULCTED CREDITORS," ID., AT 174, AND WAS "NOT DESIGNED TO
AID COLLECTION OF DEBTS BUT TO ENFORCE A POLICY AGAINST IRRESPONSIBLE
DRIVING.  . . ."  ID., AT 169.  THE MAJORITY, THAT IS, LOOKED TO THE
PURPOSE OF THE STATE LEGISLATION AND UPHELD IT BECAUSE THE PURPOSE WAS
NOT TO CIRCUMVENT THE BANKRUPTCY ACT BUT TO PROMOTE HIGHWAY SAFETY;
THOSE IN DISSENT, HOWEVER, WERE CONCERNED THAT, WHATEVER THE PURPOSE OF
THE UTAH ACT, ITS "PLAIN AND INEVITABLE EFFECT . . . (WAS) TO CREATE A
POWERFUL WEAPON FOR COLLECTION OF A DEBT FROM WHICH (THE) BANKRUPT
(HAD) BEEN RELEASED BY FEDERAL LAW."  ID., AT 183.  SUCH A RESULT, THEY
ARGUED, LEFT "THE STATES FREE . . . TO IMPAIR . . . AN IMPORTANT AND
HISTORIC POLICY OF THIS NATION . . . EMBODIED IN ITS BANKRUPTCY LAWS." 
ID., AT 185. 

THE OPINION OF THE COURT IN REITZ WAS SIMILARLY CONCERNED, NOT WITH
THE FACT THAT NEW YORK'S FINANCIAL RESPONSIBILITY LAW FRUSTRATED THE
OPERATION OF THE BANKRUPTCY ACT, BUT WITH THE PURPOSE OF THE LAW, WHICH
WAS DIVINED AS THE PROMOTION OF HIGHWAY SAFETY.  AS THE COURT SAID: 

"THE PENALTY WHICH SEC. 94-B IMPOSES FOR INJURY DUE TO CARELESS
DRIVING IS NOT FOR THE PROTECTION OF THE CREDITOR MERELY, BUT TO
ENFORCE A PUBLIC POLICY THAT IRRESPONSIBLE DRIVERS SHALL NOT, WITH
IMPUNITY, BE ALLOWED TO INJURE THEIR FELLOWS.  THE SCHEME OF THE
LEGISLATION WOULD BE FRUSTRATED IF THE RECKLESS DRIVER WERE PERMITTED
TO ESCAPE ITS PROVISIONS BY THE SIMPLE EXPEDIENT OF VOLUNTARY
BANKRUPTCY, AND, ACCORDINGLY, THE LEGISLATURE DECLARED THAT A DISCHARGE
IN BANKRUPTCY SHOULD NOT INTERFERE WITH THE OPERATION OF THE STATUTE. 
SUCH LEGISLATION IS NOT IN DEROGATION OF THE BANKRUPTCY ACT.  RATHER IT
IS AN ENFORCEMENT OF PERMISSIBLE STATE POLICY TOUCHING HIGHWAY
SAFETY."  314 U.S.,AT 37. 

THE DISSENTING OPINION WRITTEN BY MR. JUSTICE DOUGLAS FOR HIMSELF
AND THREE OTHERS NOTED THAT THE NEW YORK LEGISLATION PUT "THE BANKRUPT
. . . AT THE CREDITOR'S MERCY," WITH THE RESULTS THAT "(IN PRACTICAL
EFFECT THE BANKRUPT MAY BE IN AS BAD, OR EVEN WORSE, A POSITION THAN IF
THE STATE HAD MADE IT POSSIBLE FOR A CREDITOR TO ATTACH HIS FUTURE
WAGES" AND THAT "(BANKRUPTCY . . . (WAS NOT) THE SANCTUARY FOR HAPLESS
DEBTORS WHICH CONGRESS INTENDED."  ID., AT 41. 

WE CAN NO LONGER ADHERE TO THE ABERRATIONAL DOCTRINE OF KESLER AND
REITZ THAT STATE LAW MAY FRUSTRATE THE OPERATION OF FEDERAL LAW AS LONG
AS THE STATE LEGISLATURE IN PASSING ITS LAW HAD SOME PURPOSE IN MIND
OTHER THAN ONE OF FRUSTRATION.  APART FROM THE FACT THAT IT IS AT ODDS
WITH THE APPROACH TAKEN IN NEARLY ALL OUR SUPREMACY CLAUSE CASES, SUCH
A DOCTRINE WOULD ENABLE STATE LEGISLATURES TO NULLIFY NEARLY ALL
UNWANTED FEDERAL LEGISLATION BY SIMPLY PUBLISHING A LEGISLATIVE
COMMITTEE REPORT ARTICULATING SOME STATE INTEREST OR POLICY-- OTHER
THAN FRUSTRATION OF THE FEDERAL OBJECTIVE-- THAT WOULD BE TANGENTIALLY
FURTHERED BY THE PROPOSED STATE LAW.  IN VIEW OF THE CONSEQUENCES, WE
CERTAINLY WOULD NOT APPLY THE KESLER DOCTRINE IN ALL SUPREMACY CLAUSE
CASES.  ALTHOUGH IT IS POSSIBLE TO ARGUE THAT KESLER AND REITZ ARE
SOMEHOW CONFINED TO CASES INVOLVING EITHER BANKRUPTCY OR HIGHWAY
SAFETY, ANALYSIS DISCLOSES NO REASON WHY THE STATES SHOULD HAVE BROADER
POWER TO NULLIFY FEDERAL LAW IN THESE FIELDS THAN IN OTHERS.  THUS, WE
CONCLUDE THAT KESLER AND REITZ CAN HAVE NO AUTHORITATIVE EFFECT TO THE
EXTENT THEY ARE INCONSISTENT WITH THE CONTROLLING PRINCIPLE THAT ANY
STATE LEGISLATION WHICH FRUSTRATES THE FULL EFFECTIVENESS OF FEDERAL
LAW IS RENDERED INVALID BY THE SUPREMACY CLAUSE.  SECTION 28-1163(B)
THUS MAY NOT STAND. 

        III 

EVEN ACCEPTING THE SUPREMACY CLAUSE ANALYSIS OF KESLER AND REITZ--
THAT IS, LOOKING TO THE PURPOSE RATHER THAN THE EFFECT OF STATE LAWS--
THOSE DECISIONS ARE NOT DISPOSITIVE OF THIS CASE.  JUST AS KESLER WENT
A STEP BEYOND REITZ AND BROADENED THE HOLDING OF THE EARLIER CASE, 369
U.S.,AT 184 (DISSENTING OPINION), SO IN THE PRESENT CASE THE
RESPONDENTS ASKED THE COURTS BELOW AND THIS COURT TO EXPAND THE
HOLDINGS OF THE TWO PREVIOUS CASES.  THE DISTINCTION BETWEEN KESLER AND
REITZ AND THIS CASE LIES IN THE STATE'S EXPRESSED LEGISLATIVE PURPOSE. 

KESLER AND REITZ WERE ABERRATIONAL IN THEIR TREATMENT OF THIS
QUESTION AS WELL.  THE MAJORITY OPINIONS IN BOTH CASES ASSUMED, WITHOUT
CITATION OF STATE COURT AUTHORITY OR ANY INDICATION THAT SUCH PRECEDENT
WAS UNAVAILABLE, THAT THE PURPOSE OF THE STATE FINANCIAL RESPONSIBILITY
LAWS THERE UNDER ATTACK WAS NOT PROVISION OF RELIEF TO CREDITORS BUT
RATHER DETERRENCE OF IRRESPONSIBLE DRIVING.  THE ASSUMPTION WAS, IN
EFFECT, THAT ALL STATE LEGISLATURES WHICH HAD ENACTED PROVISIONS SUCH
AS SEC. 28-1163(B) HAD CONCLUDED THAT AN UNINSURED MOTORIST ABOUT TO
EMBARK IN HIS CAR WOULD BE MORE CAREFUL ON THE ROAD IF HE DID NOT HAVE
AVAILABLE WHAT THE MAJORITY IN KESLER CAVALIERLY CHARACTERIZED AS AN
"EASY REFUGE IN BANKRUPTCY."  369 U.S.,AT 173.  /14/  PASSING THE
QUESTION OF WHETHER THE COURT GAVE SUFFICIENT ATTENTION TO BINDING
STATE INTERPRETATIONS OF STATE LEGISLATIVE PURPOSE AND CONCEDING THAT
IT EMPLOYED PROPER TECHNIQUE IN DIVINING AS OBVIOUS FROM THEIR FACE THE
AIM OF THE STATE ENACTMENTS, THE PRESENT CASE RAISES DOUBTS ABOUT
WHETHER THE COURT WAS CORRECT EVEN IN ITS BASIC ASSUMPTIONS.  THE
ARIZONA SUPREME COURT HAS DECLARED THAT ARIZONA'S SAFETY RESPONSIBILITY
ACT "HAS FOR ITS PRINCIPAL PURPOSE THE PROTECTION OF THE PUBLIC . . .
FROM FINANCIAL HARDSHIP" RESULTING FROM INVOLVEMENT IN TRAFFIC
ACCIDENTS WITH UNINSURED MOTORISTS UNABLE TO RESPOND TO A JUDGMENT. 
SCHECTER V. KILLINGSWORTH, 93 ARIZ.,AT 280, 380 P.2D, AT 140.  THE
COURT IN KESLER WAS ABLE TO DECLARE, ALTHOUGH THE SOURCE OF SUPPORT IS
UNCLEAR, THAT THE UTAH STATUTE COULD BE UPHELD BECAUSE IT WAS "NOT AN
ACT FOR THE RELIEF OF MULCTED CREDITORS" OR A STATUTE "DESIGNED TO AID
COLLECTION OF DEBTS."  369 U.S.,AT 174, 169.  BUT HERE THE RESPONDENTS
URGE US TO UPHOLD PRECISELY THE SORT OF STATUTE THAT KESLER WOULD HAVE
STRICKEN DOWN-- ONE WITH A DECLARED PURPOSE TO PROTECT JUDGMENT
CREDITORS "FROM FINANCIAL HARDSHIP" BY GIVING THEM A POWERFUL WEAPON
WITH WHICH TO FORCE BANKRUPTS TO PAY THEIR DEBTS DESPITE THEIR
DISCHARGE.  WHEREAS THE ACTS IN KESLER AND REITZ HAD THE EFFECT OF
FRUSTRATING FEDERAL LAW BUT HAD, THE COURT SAID, NO SUCH PURPOSE, THE
ARIZONA ACT HAS BOTH THAT EFFECT AND THAT PURPOSE.  BELIEVING AS WE DO
THAT KESLER AND REITZ ARE NOT IN HARMONY WITH SOUND CONSTITUTIONAL
PRINCIPLE, THEY CERTAINLY SHOULD NOT BE EXTENDED TO COVER THIS NEW AND
DISTINGUISHABLE CASE. 

        IV 

ONE FINAL ARGUMENT MERITS DISCUSSION.  THE DISSENT POINTS OUT THAT
THE DISTRICT OF COLUMBIA CODE CONTAINS AN ANTI-DISCHARGE PROVISION
SIMILAR TO THAT INCLUDED IN THE ARIZONA ACT.  MOTOR VEHICLE SAFETY
RESPONSIBILITY ACT OF THE DISTRICT OF COLUMBIA, D.C. CODE ANN. SEC. 40
464 (1967), 68 STAT. 132.  IN LIGHT OF OUR DECISION TODAY, THE SUM OF
THE ARGUMENT IS TO DRAW INTO QUESTION THE CONSTITUTIONAL VALIDITY OF
THE DISTRICT'S ANTI-DISCHARGE SECTION, FOR AS NOTED IN THE DISSENT THE
CONSTITUTION CONFERS UPON CONGRESS THE POWER "(TO ESTABLISH . . .
UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES THROUGHOUT THE UNITED
STATES."  U.S. CONST., ART. I, SEC. 8, CL. 4.  IT IS ASSERTED THAT
"CONGRESS MUST HAVE REGARDED THE TWO STATUTES AS CONSISTENT AND
COMPATIBLE," POST, AT 665, BUT SUCH AN ARGUMENT ASSUMES A MODICUM OF
LEGISLATIVE ATTENTION TO THE QUESTION OF CONSISTENCY.  THE D.C. CODE
PASSAGE MAY AT MOST BE VIEWED AS EVIDENCING AN OPINION OF CONGRESS ON
THE MEANING OF THE GENERAL DISCHARGE PROVISION ENACTED BY AN EARLIER
CONGRESS AND INTERPRETED BY THIS COURT AS EARLY AS 1925.  SEE LEWIS V.
ROBERTS, SUPRA.  IN FACT, IN PASSING THE INITIAL AND AMENDED VERSION OF
THE DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY LAW, CONGRESS GAVE NO
ATTENTION TO THE INTERACTION OF THE ANTI-DISCHARGE SECTION WITH THE
BANKRUPTCY ACT.  /15/  MOREOVER, THE LEGISLATIVE HISTORY IS QUITE CLEAR
THAT WHEN CONGRESS DEALTH WITH THE SUBJECT OF FINANCIAL RESPONSIBILITY
LAWS FOR THE DISTRICT, IT BASED ITS WORK UPON THE EFFORTS OF THE
UNIFORM COMMISSIONERS WHICH HAD WON ENACTMENT IN OTHER STATES.  /16/ 

HAD CONGRESS FOCUSED ON THE INTERACTION BETWEEN THIS MINOR
SUBSECTION OF THE RATHER LENGTHY FINANCIAL RESPONSIBILITY ACT AND THE
DISCHARGE PROVISION OF THE BANKRUPTCY ACT, IT WOULD HAVE BEEN
IMMEDIATELY APPARENT TO THE LEGISLATORS THAT THE ONLY CONSTITUTIONAL
METHOD FOR SO DEFINING THE SCOPE AND EFFECT OF A DISCHARGE IN
BANKRUPTCY WAS BY AMENDMENT OF THE BANKRUPTCY ACT, WHICH BY ITS TERMS
IS A UNIFORM STATUTE APPLICABLE IN THE STATES, TERRITORIES, AND THE
DISTRICT OF COLUMBIA.  11 U.S.C. 1(29).  TO FOLLOW ANY OTHER COURSE
WOULD OBVIOUSLY BE TO LEGISLATE IN SUCH A WAY THAT A DISCHARGE IN
BANKRUPTCY MEANS ONE THING IN THE DISTRICT OF COLUMBIA AND SOMETHING
ELSE IN THE STATES-- DEPENDING ON STATE LAW-- A RESULT EXPLICITLY
PROHIBITED BY THE UNIFORMITY REQUIREMENT IN THE CONSTITUTIONAL
AUTHORIZATION TO CONGRESS TO ENACT BANKRUPTCY LEGISLATION. 

        V 

FROM THE FOREGOING, WE THINK IT CLEAR THAT SEC. 28-1163(B) OF THE
ARIZONA SAFETY RESPONSIBILITY ACT IS CONSTITUTIONALLY INVALID.  THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

          IT IS SO ORDERED. 

/1/  SEE REVISER'S NOTE, ARIZ. REV. STAT. ANN. SEC. 28-1101. 

/2/  UNDER ARIZ. REV. STAT. ANN. SEC. 28-1143(A), THE OWNER OR
OPERATOR OF A CAR INVOLVED IN AN ACCIDENT NEED NOT POST SECURITY AS
REQUIRED BY SEC. 28-1142 (SUPP. 1970-1971):  (1) IF THE ACCIDENT CAUSED
INJURY OR DAMAGE TO NO PERSON OR PROPERTY OTHER THAN THE OWNER'S CAR OR
THE OPERATOR'S PERSON; (2) IF THE CAR WAS PARKED WHEN INVOLVED IN THE
ACCIDENT, UNLESS IT WAS PARKED ILLEGALLY OR DID NOT CARRY A LEGALLY
SUFFICIENT COMPLEMENT OF LIGHTS; (3) IF THE CAR WAS BEING DRIVEN OR WAS
PARKED BY ANOTHER WITHOUT THE OWNER'S EXPRESS OR IMPLIED PERMISSION;
(4) IF PRIOR TO DATE FOR SUSPENSION THE PERSON WHOSE LICENSE OR
REGISTRATION WOULD BE SUSPENDED FILES WITH THE SUPERINTENDENT A
RELEASE, A FINAL ADJUDICATION OF NONLIABILITY, A CONFESSION OF
JUDGMENT, OR SOME OTHER WRITTEN SETTLEMENT AGREEMENT PROVIDING FOR
PAYMENT, IN INSTALLMENTS, OF AN AGREED AMOUNT OF DAMAGES WITH RESPECT
TO CLAIMS ARISING FROM THE ACCIDENT; OR (5) IF THE DRIVER AT THE TIME
OF THE ACCIDENT WAS DRIVING A VEHICLE OWNED, OPERATED, OR LEASED BY HIS
EMPLOYER WITH THE EMPLOYER'S PERMISSION, IN THAT CASE THE SECURITY AND
SUSPENSION PROVISIONS APPLY ONLY TO THE OWNER-EMPLOYER'S REGISTRATION
OF VEHICLES NOT COVERED BY INSURANCE OR OTHER BOND. 

/3/  THIS SECTION FURTHER PROVIDES THAT THE SUPERINTENDENT MAY EMPLOY
SUSPENSION A SECOND TIME AS A MEANS OF ENFORCING PAYMENT SHOULD THERE
BE A DEFAULT ON INSTALLMENT OBLIGATIONS ARISING UNDER A CONFESSION OF
JUDGMENT OR A WRITTEN SETTLEMENT AGREEMENT.  ARIZ. REV. STAT. ANN SEC.
28-1144(3). 

/4/  ARIZ. REV. STAT. ANN SEC. 28-1102 (SUPP. 1970-1971) DEFINES
"JUDGMENT," FOR PURPOSES OF THE MOTOR VEHICLE SAFETY RESPONSIBILITY
ACT, AS "ANY JUDGMENT WHICH HAS BECOME FINAL . . . , UPON A CAUSE OF
ACTION ARISING OUT OF THE OWNERSHIP, MAINTENANCE OR USE OF A MOTOR
VEHICLE, FOR DAMAGES . . . OR UPON A CAUSE OF ACTION ON AN AGREEMENT OF
SETTLEMENT FOR SUCH DAMAGES." 

/5/  UNDER ARIZ. REV. STAT. ANN. SEC. 28-1161(B), A SIMILAR NOTICE
MUST ALSO BE FORWARDED TO OFFICIALS IN THE HOME STATE OF A NONRESIDENT
JUDGMENT DEBTOR. 

/6/  "A.  THE SUPERINTENDENT UPON RECEIPT OF A CERTIFIED COPY OF A
JUDGMENT, SHALL FORTHWITH SUSPEND THE LICENSE AND REGISTRATION AND
NONRESIDENT OPERATING PRIVILEGE OF A PERSON AGAINST WHOM THE JUDGMENT
WAS RENDERED, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION AND SEC. 28
1165." 

/7/  ARIZ. REV. STAT. ANN. SEC. 28-1163(A).  ARIZ. REV. STATE. 
ANN.  SEC. 28-1164 (SUPP. 1970-1971) DEFINES WHEN A JUDGMENT IS
"PAID."  ARIZ. REV. STAT. ANN. SEC. 28-1165 SETS FORTH A PROCEDURE FOR
PAYING JUDGMENTS IN INSTALLMENTS.  ARIZ. REV. STAT. ANN. SEC. 28
1162(B) PROVIDES THAT IF A CREDITOR CONSENTS IN WRITING AND THE DEBTOR
FURNISHES PROOF OF FINANCIAL RESPONSIBILITY, SEE ARIZ. REV. STAT. ANN.
SEC. 28-1167, THE DEBTOR'S LICENSE AND REGISTRATION MAY BE RESTORED IN
THE SUPERINTENDENT'S DISCRETION.  AFTER SIX MONTHS, HOWEVER, THE
CREDITOR'S CONSENT IS REVOCABLE PROVIDED THE JUDGMENT DEBT REMAINS
UNPAID.     /8/  SECTIONS 28-1167 THROUGH 28-1178 SET FORTH THE
REQUIREMENTS FOR VARIOUS FORMS OF PROOF.  UNDER SEC. 28-1178, THE
JUDGMENT DEBTOR IS APPARENTLY ABLE TO REGAIN HIS LICENSE AND
REGISTRATION TO OPERATE A MOTOR VEHICLE WITHOUT PROOF OF FINANCIAL
RESPONSIBILITY AFTER THREE YEARS FROM THE DATE SUCH PROOF WAS FIRST
REQUIRED OF HIM, IF DURING THAT PERIOD THE SUPERINTENDENT HAS NOT
RECEIVED ANY NOTICE-- AND NOTICE CAN COME FROM OTHER STATES-- OF A
CONVICTION OR FORFEITURE OF BAIL WHICH WOULD REQUIRE OR PERMIT THE
SUSPENSION OR REVOCATION OF THE DRIVER'S LICENSE AND IF THE INDIVIDUAL
IS NOT INVOLVED IN LITIGATION ARISING FROM AN ACCIDENT COVERED BY THE
SECURITY HE POSTED.  IF THE DRIVER REQUIRED TO POST FINANCIAL SECURITY
DOES SO, AND IS INVOLVED AS AN OWNER OR OPERATOR IN ANOTHER ACCIDENT
RESULTING IN PERSONAL INJURY OR PROPERTY DAMAGE WITHIN ONE YEAR PRIOR
TO THE DATE HE REQUESTS PERMISSION TO CANCEL HIS SECURITY, THE
SUPERINTENDENT MAY NOT PERMIT CANCELLATION. 

/9/  U.S. CONST., ART. VI, CL. 2. 

/10/  MR. AND MRS. PEREZ ALSO ALLEGED IN THEIR COMPLAINT THAT
CERTAIN PROVISIONS OF THE ARIZONA ACT IMPOSED INVOLUNTARY SERVITUDE IN
VIOLATION OF THE THIRTEENTH AMENDMENT, AND DENIED FOURTEENTH AMENDMENT
DUE PROCESS AND EQUAL PROTECTION.  THEY ALSO CLAIMED THAT PORTIONS OF
THE ARIZONA ACT OPERATED AS A BILL OF ATTAINDER IN VIOLATION OF ART. I,
SEC. 10, OF THE CONSTITUTION.  THE DISTRICT JUDGE, IN REFUSING TO
REQUEST THE CONVENING OF A THREE-JUDGE COURT, RULED THAT THESE
CONSTITUTIONAL CLAIMS WERE "OBVIOUSLY INSUBSTANTIAL."  THE COURT OF
APPEALS AGREED.  421 F.2D 619, 625 (CA9 1970).  BECAUSE OF OUR
RESOLUTION OF THIS CASE, WE EXPRESS NO OPINION AS TO THE SUBSTANTIALITY
OF ANY OF PETITIONERS' OTHER CONSTITUTIONAL CLAIMS. 

/11/  AS DISCUSSED BELOW, THE MAJORITIES IN KESLER AND REITZ ALSO
SEEMED UNWILLING TO BE BOUND BY, OR EVEN TO LOOK FOR, STATE COURT
CONSTRUCTIONS OF THE FINANCIAL RESPONSIBILITY LAWS BEFORE THEM.  SEE
INFRA, AT 652-654.  IT IS CLEAR, HOWEVER, FROM EVEN A CURSORY
EXAMINATION OF DECISIONS IN OTHER STATES THAT THE CONCLUSION OF THE
ARIZONA SUPREME COURT AS TO THE PURPOSE OF THE FINANCIAL RESPONSIBILITY
LAW IS BY NO MEANS UNUSUAL.  SEE, E.G., SULLIVAN V. CHEATHAM, 264 ALA.
71, 76, 84 SO.2D 374, 378 (1955) ("THE PURPOSE OF THE (MOTOR VEHICLE
SAFETY-RESPONSIBILITY) ACT IS CLEARLY TO REQUIRE AND ESTABLISH
FINANCIAL RESPONSIBLITY FOR EVERY OWNER OR OPERATOR OF A MOTOR VEHICLE
'IN ANY MANNER INVOLVED IN AN ACCIDENT.'  . . . THE ACT IS DESIGNED TO
PROTECT ALL PERSONS HAVING CLAIMS ARISING OUT OF HIGHWAY ACCIDENTS.");
ESCOBEDO V. STATE DEPT. OF MOTOR VEHICLES, 35 CAL.2D 870, 876, 222 P.2D
1, 5 (1950) ("(THE STATE CHOSE TO ALLOW FINANCIALLY IRRESPONSIBLE
LICENSED OPERATORS TO DRIVE UNTIL THEY BECAME INVOLVED IN AN ACCIDENT
WITH THE CONSEQUENCES DESCRIBED IN THE (FINANCIAL RESPONSIBILITY LAW)
AND THEIR FINANCIAL IRRESPONSIBILITY WAS THUS BROUGHT TO THE ATTENTION
OF THE DEPARTMENT, AND THEN TO REQUIRE SUSPENSION OF THEIR LICENSES.");
PEOPLE V. NOTHAUS, 147 COLO. 210, 215-216, 363 P.2D 180, 183 (1961)
("THE REQUIREMENT OF C.R.S. '53, 13-7-7, THAT THE DIRECTOR OF REVENUE,
' . . . SHALL SUSPEND THE LICENSE OF EACH OPERATOR AND ALL
REGISTRATIONS OF EACH OWNER OF A MOTOR VEHICLE IN ANY MANNER INVOLVED
IN (AN) ACCIDENT . . . ' UNLESS SUCH PERSONS DEPOSIT A SUM 'SUFFICIENT
IN THE JUDGMENT OF THE DIRECTOR . . . ' TO PAY ANY DAMAGE WHICH MAY BE
AWARDED, OR OTHERWISE SHOW ABILITY TO INDEMNIFY THE OTHER PARTY TO THE
ACCIDENT AGAINST FINANCIAL LOSS, HAS NOTHING WHATEVER TO DO WITH THE
PROTECTION OF THE PUBLIC SAFETY, HEALTH, MORALS OR WELFARE.  IT IS A
DEVICE DESIGNATED AND INTENDED TO BRING ABOUT THE POSTING OF SECURITY
FOR THE PAYMENT OF A PRIVATE OBLIGATION WITHOUT THE SLIGHTEST
INDICATION THAT ANY LEGAL OBLIGATION EXISTS ON THE PART OF ANY PERSON. 
THE PUBLIC GETS NO PROTECTION WHATEVER FROM THE DEPOSIT OF SUCH
SECURITY.  THIS IS NOT THE SITUATION WHICH WE FIND IN SOME STATES WHERE
THE STATUTES REQUIRE PUBLIC LIABILITY INSURANCE AS A CONDITION TO BE
MET BEFORE A DRIVER'S LICENSE WILL ISSUE.  SUCH STATUTE PROTECTS THE
PUBLIC.  THE STATUTE BEFORE US IS ENTIRELY DIFFERENT.  IN THE MATTERS
TO WHICH WE HAVE PARTICULARLY DIRECTED ATTENTION, C.R.S. '53, 13-7-7,
IS UNCONSTITUTIONAL.  ON A MATTER SO OBVIOUSLY BASIC AND FUNDAMENTAL NO
ADDITIONAL CITATION OF AUTHORITY IS REQUIRED.  WE REACH THIS CONCLUSION
NOTWITHSTANDING THE FACT THAT OTHER JURISDICTIONS HAVE SEEMINGLY
OVERLOOKED BASIC CONSTITUTIONAL GUARANTEES WHICH MUST BE IGNORED IN
REACHING AN OPPOSITE CONCLUSION."); DEMPSEY V. TYNAN, 143 CONN. 202,
208, 120 A.2D 700, 703 (1956) ("THE PURPOSE OF THE LEGISLATURE IN
ENACTING THE FINANCIAL RESPONSIBILITY PROVISIONS . . . WAS TO KEEP OFF
OUR HIGHWAYS THE FINANCIALLY IRRESPONSIBLE OWNER OR OPERATOR OF AN
AUTOMOBILE WHO CANNOT RESPOND IN DAMAGES FOR THE INJURIES HE MAY
INFLICT, AND TO REQUIRE HIM, AS A CONDITION FOR SECURING OR RETAINING A
REGISTRATION OR AN OPERATOR'S LICENSE, TO FURNISH ADEQUATE MEANS OF
SATISFYING POSSIBLE CLAIMS AGAINST HIM."); CITY OF ST. PAUL V.
HOFFMANN, 223 MINN. 76, 77-78, 25 N.W.2D 661, 662-663 (1946) ("THE
APPARENT OBJECTIVE OF THE SAFETY RESPONSIBILITY ACT IS TO PROVIDE
FINANCIAL RESPONSIBILITY FOR INJURIES AND DAMAGES SUFFERED IN MOTOR
VEHICLE TRAFFIC.  IT SEEKS TO ACHIEVE ITS OBJECTIVE SOLELY BY THE
SUSPENSION OF LICENSE.  WHILE ITS ANNOUNCED PURPOSE IS TO PROMOTE
SAFETY OF TRAVEL, ITS PROVISIONS TAKE EFFECT AFTER AN ACCIDENT HAPPENS
AND SUBJECT DRIVERS AND OWNERS OF VEHICLES INVOLVED TO SUSPENSION OF
THEIR 'LICENSES' UNLESS LIABILITY INSURANCE COVERAGE EQUIVALENT TO THAT
REQUIRED BY THE ACT IS CARRIED BY THE OWNER OR DRIVER OF THE VEHICLE. 
. . . THE PURPOSE OF THE ACT WAS TO EFFECT FINANCIAL RESPONSIBILITY TO
INJURED PERSONS."); ROSENBLUM V. GRIFFIN, 89 N.H. 314, 318, 197 A. 701,
704 (1938) ("TWO REASONS WERE THOUGHT TO AVAIL FOR SUSTAINING SUCH A
LAW.  ONE WAS ITS CHARACTER AS A REGULATION OF THE USE OF PUBLIC
HIGHWAYS AND THE OTHER WAS ITS CAPACITY TO SECURE PUBLIC SAFETY IN
DANGEROUS AGENCIES AND OPERATIONS.  THIS LATTER REASON HAS SLIGHT IF
ANY EVIDENCE FOR ITS FACTUAL SUPPORT.  CERTAINLY, IN THE ABSENCE OF
KNOWN EXPERIENCE AND STATISTICS, IT IS DOUBTFUL WHETHER THE INSURED
OWNER'S CAR, DRIVE EITHER BY HIMSELF OR ANOTHER, MAY BE CONSIDERED TO
BE OPERATED MORE CAREFULLY THAN ONE WHOSE OWNER IS UNINSURED.  BUT
PROTECTION IN SECURING REDRESS FOR INJURED HIGHWAY TRAVELERS IS A
PROPER SUBJECT OF POLICE REGULATION, AS WELL AS PROTECTION FROM BEING
INJURED.  IT IS A REASONABLE INCIDENT OF THE GENERAL WELFARE THAT
FINANCIALLY IRRESPONSIBLE PERSONS BE DENIED THE USE OF THE HIGHWAY WITH
THEIR CARS, REGARDLESS OF THE COMPETENCY OF THEMSELVES OR OTHERS AS THE
DRIVERS.").  FOR LEGISLATIVE STATEMENTS TO THE EFFECT THAT FINANCIAL
RESPONSIBILITY LAWS ARE DESIGNED TO SECURE COMPENSATION FOR INJURED
VICTIMS, SEE, E.G., ALASKA STAT. SEC. 28.20.010 (1970); GILLASPIE V.
DEPARTMENT OF PUBLIC SAFETY, 152 TEX. 459, 463, 259 S.W.2D 177, 180
(1953) (QUOTING EMERGENCY CLAUSE ENACTED BY THE TEXAS LEGISLATURE IN
CONNECTION WITH ITS FINANCIAL RESPONSIBILITY LAW); S. REP. NO. 515, 83D
CONG., 1ST SESS., 2 (1953) (REPORT OF THE SENATE COMMITTEE ON THE
DISTRICT OF COLUMBIA ON THE FINANCIAL RESPONSIBILITY LAW PROPOSED FOR
THE DISTRICT). 

/12/  SEE REITZ, 314 U.S.,AT 40-43 (DOUGLAS, J., DISSENTING). 

UNDER ART. 3 OF THE ARIZONA ACT, DEALING WITH THE POSTING OF
SECURITY FOR DAMAGES ARISING FROM A PARTICULAR ACCIDENT, THE VICTIM MAY
CUT THE SUPERINTENDENT OUT BY EXECUTING A RELEASE FROM LIABILITY OR
AGREEING TO SOME OTHER WRITTEN SETTLEMENT OR CONFESSION OF JUDGMENT
PROVIDING FOR PAYMENT OF SOME DAMAGES, IN INSTALLMENTS OR OTHERWISE. 
ARIZ. REV. STAT. ANN. SEC. 28-1143(A)(4) DISCUSSED IN N. 2, SUPRA.
ASSUMING THAT SUCH AN AGREEMENT OR CONFESSION OF JUDGMENT PROVIDING FOR
INSTALLMENT PAYMENTS IS FILED WITH THE SUPERINTENDENT, IT PREVENTS HIM
FROM SUSPENDING DRIVING PRIVILEGES FOR FAILURE TO POST THE AMOUNT OF
FINANCIAL SECURITY THE SUPERINTENDENT DETERMINES TO BE NECESSARY;
HOWEVER, IF THE CARELESS DRIVER LATER DEFAULTS ON ONE INSTALLMENT, THE
VICTIM MAY GIVE NOTICE TO THE SUPERINTENDENT, WHO MUST THEN USE HIS
POWER OF SUSPENSION TO EITHER COERCE FULL PAYMENT OR THE POSTING OF
SECURITY.  ARIZ. REV. STAT. ANN. SEC. 28-1144(3), DISCUSSED IN N. 3,
SUPRA. 

UNDER ART. 4, DEALING WITH SUSPENSION FOR NONPAYMENT OF A JUDGMENT,
THE VICTIM WHO HAS CHOSEN TO REDUCE HIS CLAIM TO JUDGMENT MAINTAINS
SUBSTANTIAL CONTROL OVER THE SUSPENSION OF DRIVING PRIVILEGES IF THE
JUDGMENT REMAINS UNSATISFIED 60 DAYS AFTER ENTRY.  HE MAY CONSENT THAT
THE JUDGMENT DEBTOR'S DRIVING PRIVILEGES NOT BE SUSPENDED, BUT THE
DEBOT STILL MUST FURNISH PROOF OF FINANCIAL RESPONSIBILITY FOR THE
FUTURE.  ARIZ. REV. STAT. ANN. SEC. 28-1162(B).  FOR AN ARGUMENT THAT A
SIMILAR PROVISION DELEGATING TO JUDGMENT CREDITORS THE RIGHT TO CHOOSE
WHICH CARELESS DRIVERS WHO DO NOT PAY JUDGMENTS SHALL ESCAPE SUSPENSION
CONFLICTS WITH THE BANKRUPTCY ACT SEE KESLER, 369 U.S.,AT 179-182
(WARREN, C.J., DISSENTING).  IF THE JUDGMENT DEBTOR IS ABLE TO SECURE A
DISCRETIONARY COURT ORDER PERMITTING HIM TO PAY A JUDGMENT IN
INSTALLMENTS UNDER SEC. 28-1165(A), THE CREDITOR MAY CAUSE SUSPENSION
OF DRIVING PRIVILEGES UNTIL THE JUDGMENT IS FULLY SATISFIED BY
NOTIFYING THE SUPERINTENDENT OF ANY DEFAULT IN PAYMENT OF THE
INSTALLMENTS.  ARIZ. REV. STAT. ANN. SEC. 28-1165(C).  AGAIN, HOWEVER,
THE JUDGMENT DEBTOR MUST STILL GIVE PROOF OF FINANCIAL RESPONSIBILITY
FOR THE FUTURE.  SEE ARIZ. REV. STAT. ANN. SEC. 28-1165(B). 

/13/  KESLER ALSO DECIDED A JURISDICTIONAL QUESTION, HOLDING THAT A
SUPREMACY CLAUSE CHALLENGE TO A STATE STATUTE WAS REQUIRED TO BE HEARD
BY A THREE-JUDGE DISTRICT COURT UNDER 28 U.S.C. 2281.  SEE 369 U.S.,AT
155-158.  THIS JURISDICTIONAL PART OF THE DECISION WAS OVERRULED ALMOST
FOUR YEARS LATER IN SWIFT & CO. V. WICKHAM, 382 U.S. 111, 116 (1965). 

/14/  IT ALSO SEEMS CLEAR THAT EVEN UNDER THE LOGIC OF KESLER AND
REITZ MRS. PEREZ SHOULD NOT HAVE LOST HER DRIVING PRIVILEGES.  SHE WAS
NOT PRESENT WHEN THE ACCIDENT OCCURRED, AND NO ACT OR OMISSION ON HER
PART CONTRIBUTED TO IT.  BECAUSE THE AUTOMOBILE WAS COMMUNITY PROPERTY
UNDER ARIZONA LAW AND BECAUSE JUDGMENT WAS CONFESSED AS TO HER IN THE
PINKERTON NEGLIGENCE ACTION, THE COURT OF APPEALS REASONED THAT LOSS OF
MRS. PEREZ' LICENSE "IS THE PRICE AN ARIZONA WIFE MUST PAY FOR
NEGLIGENT DRIVING BY HER HUSBAND OF THE COMMUNITY VEHICLE" WHEN THE
RESULTING JUDGMENT IS NOT PAID.  421 F.2D, AT 624.  THE KESLER AND
REITZ ASSUMPTION THAT DEPRIVING UNINSURED MOTORISTS OF THE FULL RELIEF
AFFORDED BY A DISCHARGE IN BANKRUPTCY WOULD PROMPT CAREFUL DRIVING IS
WITHOUT FOUNDATION WHEN APPLIED TO MRS. PEREZ.  AS THE COURT OF APPEALS
FOR THE THIRD CIRCUIT HAS STATED IN A RECENT DECISION INVOLVING SIMILAR
FACTS: 

"EVEN ACCEPTING THE FICTION THAT, AS APPLIED TO DRIVERS, MOTOR
VEHICLE RESPONSIBILITY STATUTES ARE INTENDED TO PROMOTE SAFETY, IT IS
JUST TOO MUCH FICTION TO CONTEND THAT, APPLIED TO A JUDGMENT DEBTOR
HELD VICARIOUSLY LIABLE FOR THE OMISSION OF A SUB-AGENT, THE STATUTE IS
ANYTHING BUT A MEANS FOR THE ENFORCEMENT OF JUDGMENTS."  MILLER V.
ANCKAITIS, 436 F.2D 115, 118 (CA3 1970) (EN BANC). 

/15/  SEE S. REP. NO. 10, 74TH CONG., 1ST SESS. (1935) (BOTH
PRESENTING A SUMMARY OF THE PROVISIONS OF THE PROPOSED STATUTE DEALING
WITH "FINANCIAL RESPONSIBILITY OF MOTOR VEHICLE OPERATORS IN THE
DISTRICT OF COLUMBIA," BUT FAILING TO MENTION THE FACT THAT A DISCHARGE
IN BANKRUPTCY OF AN ACCIDENT JUDGMENT WOULD HAVE NO EFFECT ON
SUSPENSION OF DRIVING PRIVILEGES FOR FAILURE TO SATISFY SUCH JUDGMENT);
H.R. CONF. REP. NO. 799, 74TH CONG., 1ST SESS. (1935) (CONFERENCE
REPORT MAKING NO MENTION OF ANTI-DISCHARGE PROVISION); 79 CONG.REC. 
272-273 (SENATE); 79 CONG.REC.  3416-3417, 4621-4629, 4631-4641, 6556
6564 (HOUSE).  SOME MEMBERS OF THE HOUSE, WHICH DEBATED SOME ASPECTS OF
THE FINANCIAL RESPONSIBILITY LAW CONCEPT RATHER EXTENSIVELY IN 1935,
DEMONSTRATED IN DEBATE THAT THEY WERE TOTALLY UNAWARE OF ANY OF THE
PROVISIONS DESIGNED TO ENFORCE PAYMENT OF A JUDGMENT FOR INJURIES
CAUSED BY THE FIRST ACCIDENT OF A FINANCIALLY IRRESPONSIBLE DRIVER. 
SEE 79 CONG.REC.  4624 (REMARKS OF REPS.  FITZPATRICK AND SISSON); ID.,
AT 4625 (REMARKS OF REP. HULL). 

WHEN THE PRESENT DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY LAW
WAS ENACTED IN 1954, DEBATE WAS MUCH MORE LIMITED AND THE REPORTS OF
THE HOUSE AND SENTATE DISTRICT COMMITTEES WERE QUITE BRIEF.  EXCEPT FOR
THE READING OF THE BILL, NO MENTION WAS MADE OF THE ANTI-DISCHARGE
PROVISION.  SEE S. REP. NO. 515, 83D CONG., 1ST SESS. (1954); H.R. REP.
NO. 1448, 83D CONG., 2D SESS. (1954); 99 CONG.REC.  8950-8951; 100
CONG.REC.  6281-6287, 6347-6348. 

/16/  S. REP. NO. 10, 74TH CONG., 1ST SESS., 3 (1935); H.R. REP. NO.
208, 74TH CONG., 1ST SESS., 3 (1935); 79 CONG.REC.  4626-4627 (REMARKS
OF REP. NORTON, CHAIRMAN OF THE HOUSE DISTRICT COMMITTEE).  IN
REFERENCE TO THE PRESENT VERSION OF THE FINANCIAL RESPONSIBILITY ACT,
SEE S. REP. NO. 515, 83D CONG., 1ST SESS., 1 (1953); H.R. REP. NO.
1448, 83D CONG., 2D SESS., 2 (1954); 100 CONG.REC.  6287 (REMARKS ON
REP. TALLE); ID., AT 6347 (REMARKS OF SEN. BEALL). 

MR. JUSTICE BLACKMUN, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE
HARLAN, AND MR. JUSTICE STEWART. 

I CONCUR IN THE RESULT AS TO PETITIONER EMMA PEREZ AND DISSENT AS TO
PETITIONER ADOLFO PEREZ. 

        I 

THE SLAUGHTER ON THE HIGHWAYS OF THIS NATION EXCEEDS THE DEATH TOLL
OF ALL OUR WARS.  /1/  THE COUNTRY IS FRAGMENTED ABOUT THE CURRENT
CONFLICT IN SOUTHEAST ASIA, BUT I DETECT LITTLE GENUINE PUBLIC CONCERN
ABOUT WHAT TAKES PLACE IN OUR VERY MIDST AND ON OUR DAILY TRAVEL
ROUTES.  SEE TATE V. SHORT, 401 U.S. 395, 401 (1971) (CONCURRING
OPINION). 

THIS BEING SO, IT IS A MATTER OF DEEP CONCERN TO ME THAT TODAY THE
COURT LIGHTLY BRUSHES ASIDE AND OVERRULES TWO CASES WHERE IT HAD UPHELD
A REPRESENTATIVE ATTEMPT BY THE STATES TO REGULATE TRAFFIC AND WHERE
THE COURT HAD CONSIDERED AND REJECTED THE VERY SUPREMACY CLAUSE
ARGUMENT THAT IT NOW DISCOVERS TO BE SO PERSUASIVE.  /2/
II 

I THINK IT IS DESIRABLE TO STRESS CERTAIN FACTUAL DETAILS.  THE
FACTS, OF COURSE, ARE ONLY ALLEGED, BUT FOR PURPOSES OF THE MOTION TO
DISMISS, WE ARE TO ACCEPT THEM AS TRUE.  COOPER V. PATE, 378 U.S. 546
(1964). 

ARIZONA IS A COMMUNITY PROPERTY STATE.  ADOLFO AND EMMA PEREZ ARE
HUSBAND AND WIFE.  THEY WERE RESIDENT CITIZENS OF ARIZONA AT THE TIME
OF THE ACCIDENT IN TUCSON IN JULY 1965.  MR. PEREZ WAS DRIVING AN
AUTOMOBILE REGISTERED IN HIS NAME.  HE WAS ALONE.  MRS. PEREZ WAS NOT
WITH HIM AND NOTHING TO DO WITH HER HUSBAND'S OPERATION OF THE CAR ON
THAT DAY.  THE AUTOMOBILE, HOWEVER, WAS THE PROPERTY OF THE MARITAL
COMMUNITY. 

ACCOMPANYING, AND SUPPOSEDLY SUPPORTIVE OF, THE PEREZ COMPLAINT IN
THE PRESENT SUIT, WERE AFFIDAVITS OF MR. AND MRS. PEREZ.  THESE
AFFIDAVITS ASSERTED THAT THE PEREZES HAD FOUR MINOR CHILDREN AGES 6 TO
17; THAT EMMA IS A HOUSEWIFE AND NOT OTHERWISE GAINFULLY EMPLOYED; THAT
EMMA'S INABILITY TO DRIVE HAS REQUIRED THEIR TWO OLDER CHILDREN, AGED
17 AND 14, TO WALK ONE AND A HALF MILES TO HIGH SCHOOL AND THE THIRD
CHILD, AGED 9, ONE MILE TO ELEMENTARY SCHOOL, WITH CONSEQUENT
NOSEBLEEDING; THAT EMMA'S INABILITY TO DRIVE HAS CAUSED INCONVENIENCE
AND FINANCIAL INJURY; AND THAT ADOLFO'S INABILITY TO DRIVE HAS CASUED
INCONVENIENCE BECAUSE HE MUST RELY ON OTHERS FOR TRANSPORTATION OR USE
PUBLIC FACILITIES OR WALK. 

 III

        THE STATUTORY PLAN 

ARIZONA HAS A COMPREHENSIVE STATUTORY PLAN FOR THE REGULATION OF
VEHICLES UPON ITS HIGHWAYS.  ARIZ. REV. STAT. ANN., TIT. 28.  AMONG THE
STATE'S EFFORTS TO ASSURE RESPONSIBILITY IN THIS AREA OF INCREASING
NATIONAL CONCERN ARE ITS UNIFORM MOTOR VEHICLE OPERATORS' AND
CHAUFFEURS' LICENSE ACT (C. 4), ITS UNIFORM ACT REGULATING TRAFFIC ON
HIGHWAYS (C. 6), AND ITS UNIFORM MOTOR VEHICLE SAFETY RESPONSIBILITY
ACT (C. 7).  /3/ 

THE CHALLENGED SEC. 28-1163(B) IS A PART OF THE MOTOR VEHICLE SAFETY
RESPONSIBILITY ACT.  THE ACT'S PROVISIONS ARE NOT UNFAMILIAR.  THERE IS
IMPOSED UPON THE MOTOR VEHICLE DIVISION SUPERINTENDENT THE DUTY TO
SUSPEND THE LICENSE OF EACH OPERATOR, AND THE REGISTRATION OF EACH
OWNER, OF A MOTOR VEHICLE INVOLVED IN AN ACCIDENT RESULTING IN BODILY
INJURY OR DEATH OR PROPERTY DAMAGE TO ANY ONE PERSON IN EXCESS OF $100,
EXCEPT, AMONG OTHER SITUATIONS, WHERE PROOF OF FINANCIAL
RESPONSIBILITY, AS BY THE DEPOSIT OF APPROPRIATE SECURITY OR BY THE
PRESENCE OF A LIABILITY POLICY OF STATED MINIMUM COVERAGE, IS
AFFORDED.  SECS. 28-1142 (SUPP. 1970-1971), 28-1143, AND 28-1144.  IF
THE REGISTRANT OR OPERATOR FAILS, WITHIN 60 DAYS, TO SATISFY AN ADVERSE
MOTOR VEHICLE FINAL JUDGMENT, AS DEFINED IN SEC. 28-1102(2) (SUPP. 1970
1971), THE COURT CLERK HAS THE DUTY TO NOTIFY THE SUPERINTENDENT AND
THE LATTER TO SUSPEND THE LICENSE AND REGISTRATION OF THE JUDGMENT
DEBTOR.  SECS. 28-1161(A) AND 28-1162(A).  BUT IF THE JUDGMENT CREDITOR
CONSENTS IN WRITING THAT THE DEBTOR BE ALLOWED TO RETAIN HIS LICENSE
AND REGISTRATION, THE SUPERINTENDENT IN HIS DISCRETION MAY GRANT THAT
PRIVILEGE.  SEC. 28-1162(B).  OTHERWISE THE SUSPENSION REMAINS IN
EFFECT UNTIL THE JUDGMENT IS SATISFIED.  SEC. 28-1163(A).  PAYMENTS OF
STATED AMOUNTS ARE DEEMED TO SATISFY THE JUDGMENT, SEC. 28-1164 (SUPP.
1970-1971), AND COURT-APPROVED INSTALLMENT PAYMENT OF THE JUDGMENT WILL
PRESERVE THE LICENSE AND REGISTRATION, SEC. 28-1165. 

        IV

        ADOLFO PEREZ 

INASMUCH AS THE CASE IS BEFORE US ON THE MOTION OF DEFENDANTS BELOW
TO DISMISS THE PEREZ COMPLAINT THAT ALLEGED ADOLFO'S DRIVING ALONE, THE
COLLISION, AND THE JUDGMENT IN FAVOR OF THE PINKERTONS, IT IS
ESTABLISHED, FOR PRESENT PURPOSES, THAT THE PINKERTONS, IT IS
ESTABLISHED, FOR PRESENT PURPOSES, THAT THE PINKERTON JUDGMENT WAS
BASED ON ADOLFO'S NEGLIGENCE IN DRIVING THE PEREZ VEHICLE. 

ADOLFO EMPHASIZES, AND I RECOGNIZE, THAT UNDER ART. I, SEC. 8, CL.
4, OF THE CONSTITUTION, CONGRESS HAS POSSESSED THE POWER TO ESTABLISH
"UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES THROUGHOUT THE UNITED
STATES"; THAT, OF COURSE, THIS POWER, WHEN EXERCISED, AS IT HAS BEEN
SINCE 1800, IS "EXCLUSIVE," NEW LAMP CHIMNEY CO. V. ANSONIA BRASS &
COPPER CO., 91 U.S. 656, 661 (1876), AND "UNRESTRICTED AND PARAMOUNT,"
INTERNATIONAL SHOE CO. V. PINKUS, 278 U.S. 261, 265 (1929); THAT ONE OF
THE PURPOSES OF THE BANKRUPTCY ACT IS TO "RELIEVE THE HONEST DEBTOR
FROM THE WEIGHT OF OPPRESSIVE INDEBTEDNESS AND PERMIT HIM TO START
AFRESH . . . ," WILLAIMS V. UNITED STATES FIDELITY & GUARANTY CO., 236
U.S. 549, 554-555 (1915); AND THAT A BANKRUPT BY HIS DISCHARGE RECEIVES
"A NEW OPPORTUNITY IN LIFE AND A CLEAR FIELD FOR FUTURE EFFORT,
UNHAMPERED BY THE PRESSURE AND DISCOURAGEMENT OF PREEXISTING DEBT,"
LOCAL LOAN CO. V. HUNT, 292 U.S. 234, 244 (1934). 

FROM THESE GENERAL AND ACCEPTED PRINCIPLES IT IS ARGUED THAT SEC. 28
1163(B), WITH ITS INSISTENCE UPON POST-DISCHARGE PAYMENT AS A CONDITION
FOR LICENSE AND REGISTRATION RESTORATION, IS VIOLATIVE OF THE
BANKRUPTCY ACT AND, THUS, OF THE SUPREMACY CLAUSE. 

AS MR. PEREZ ACKNOWLEDGES IN HIS BRIEF HERE, THE ARGUMENT IS NOT
NEW.  IT WAS RAISED WITH RESPECT TO A NEW YORK STATUTE IN REITZ V.
MEALEY, 314 U.S. 33 (1941), AND WAS REJECTED THERE BY A FIVE-TO-FOUR
VOTE: 

     "THE USE OF THE PUBLIC HIGHWAYS BY MOTOR VEHICLES, WITH ITS

CONSEQUENT DANGERS, RENDERS THE REASONABLENESS AND NECESSITY OF

  REGULATION APPARENT.  THE UNIVERSAL PRACTICE IS TO REGISTER

  OWNERSHIP OF AUTOMOBILES AND TO LICENSE THEIR DRIVERS.  ANY

  APPROPRIATE MEANS ADOPTED BY THE STATES TO INSURE COMPETENCE AND

  CARE ON THE PART OF ITS LICENSEES AND TO PROTECT OTHERS USING THE

  HIGHWAY IS CONSONANT WITH DUE PROCESS.  . . .

        .          .          .   . 

     "THE PENALTY WHICH SEC. 94-B IMPOSES FOR INJURY DUE TO
CARELESS

  DRIVING IS NOT FOR THE PROTECTION OF THE CREDITOR MERELY, BUT TO

  ENFORCE A PUBLIC POLICY THAT IRRESPONSIBLE DRIVERS SHALL NOT,

  WITH IMPUNITY, BE ALLOWED TO INJURE THEIR FELLOWS.  THE SCHEME OF

  THE LEGISLATION WOULD BE FRUSTRATED IF THE RECKLESS DRIVER WERE

  PERMITTED TO ESCAPE ITS PROVISIONS BY THE SIMPLE EXPEDIENT OF

  VOLUNTARY BANKRUPTCY, AND, ACCORDINGLY, THE LEGISLATURE DECLARED

  THAT A DISCHARGE IN BANKRUPTCY SHOULD NOT INTERFERE WITH THE

  OPERATION OF THE STATUTE.  SUCH LEGISLATION IS NOT IN DEROGATION

  OF THE BANKRUPTCY ACT.  RATHER IT IS AN ENFORCEMENT OF

  PERMISSIBLE STATE POLICY TOUCHING HIGHWAY SAFETY."  314 U.S.,AT

  36-37. 

LEFT SPECIFICALLY UNANSWERED IN THAT CASE, BUT ACKNOWLEDGED AS A
"SERIOUS QUESTION," 314 U.S.,AT 38, WAS THE CLAIM THAT INTERIM
AMENDMENTS OF THE STATUTES GAVE THE CREDITOR CONTROL OVER THE
INITIATION AND DURATION OF THE SUSPENSION AND THUS VIOLATED THE
BANKRUPTCY ACT.  THE DISSENTERS, SPEAKING THROUGH MR. JUSTICE DOUGLAS,
CONCLUDED THAT THAT CONSTITUTIONAL ISSUE "CANNOT BE ESCAPED . . .
UNLESS WE ARE TO OVERLOOK THE REALITIES OF COLLECTION METHODS."  314
U.S., AT 43. 

NINE YEARS AGO, THE SAME ARGUMENT AGAIN WAS ADVANCED, THIS TIME WITH
RESPECT TO UTAH'S MOTOR VEHICLE SAFETY RESPONSIBILITY ACT, AND AGAIN
WAS REJECTED.  KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369 U.S. 153, 158
174 (1962).  THERE, UTAH'S PROVISIONS RELATING TO DURATION OF
SUSPENSION AND RESTORATION, MORE STRINGENT THAN THOSE OF NEW YORK, WERE
CHALLENGED.  IT WAS CLAIMED THAT THE STATUTES MADE THE STATE A
"COLLECTING AGENT FOR THE CREDITOR RATHER THAN FURTHERING AN INTEREST
IN HIGHWAY SAFETY," AND THAT SUSPENSION THAT COULD BE PERPETUAL "ONLY
RENDERS THE COLLECTION PRESSURE MORE EFFECTIVE."  369 U.S.,AT 169. 
THERE WAS A TROUBLESOME JURISDICTIONAL ISSUE IN THE CASE, THE DECISION
AS TO WHICH WAS LATER OVERRULED, SWIFT & CO. V. WICKHAM, 382 U.S. 111,
124-129 (1965), BUT ON THE MERITS THE COURT, BY A FIVE-TO-THREE VOTE,
SUSTAINED ALL THE UTAH STAUTES THEN UNDER ATTACK:  /4/ 

     "BUT THE LESSON ZAVELO (V. REEVES, 227 U.S. 625 (1913)) AND

  SPALDING (V. NEW YORK EX REL. BACKUS, 4 HOW.  21 (1845)) TEACH IS

  THAT THE BANKRUPTCY ACT DOES NOT FORBID A STATE TO ATTACH ANY

  CONSEQUENCE WHATSOEVER TO A DEBT WHICH HAS BEEN DISCHARGED. 

     "THE UTAH SAFETY REPONSIBILITY ACT LEAVES THE BANKRUPT TO SOME

  EXTENT BURDENED BY THE DISCHARGED DEBT.  CERTAINLY SOME INROAD IS

  MADE ON THE CONSEQUENCES OF BANKRUPTCY IF THE CREDITOR CAN EXERT

  PRESSURE TO RECOUP A DISCHARGED DEBT, OR PART OF IT, THROUGH THE

  LEVERAGE OF THE STATE'S LICENSING AND REGISTRATION POWER.  BUT

  THE EXERCISE OF THIS POWER IS DEEMED VITAL TO THE STATE'S

  WELL-BEING, AND, FROM THE POINT OF VIEW OF ITS INTERESTS, IS

  WHOLLY UNRELATED TO THE CONSIDERATIONS WHICH PROPELLED CONGRESS

  TO ENACT A NATIONAL BANKRUPTCY LAW.  THERE ARE HERE OVERLAPPING

  INTERESTS WHICH CANNOT BE UNCRITICALLY RESOLVED BY EXCLUSIVE

  REGARD TO THE MONEY CONSEQUENCES OF ENFORCING A WIDELY ADOPTED

MEASURE FOR SAFEGAURDING LIFE AND SAFETY. 

     " . . . AT THE HEART OF THE MATTER ARE THE COMPLICATED DEMANDS
OF OUR FEDERALISM. 

     "ARE THE DIFFERENCES BETWEEN THE UTAH STATUTE AND THAT OF NEW

  YORK SO SIGNIFICANT AS TO MAKE A CONSTITUTIONALLY DECISIVE

  DIFFERENCE?  A STATE MAY PROPERLY DECIDE, AS FORTY-FIVE HAVE

  DONE, THAT THE PROSPECT OF A JUDGMENT THAT MUST BE PAID IN ORDER

  TO REGAIN DRIVING PRIVILEGES SERVES AS A SUBSTANTIAL DETERRENT TO

  UNSAFE DRIVING.  WE HELD IN REITZ THAT IT MIGHT IMPOSE THIS

  REQUIREMENT DESPITE A DISCHARGE, IN ORDER NOT TO EXEMPT SOME

DRIVERS FROM APPROPRIATE PROTECTION OF PUBLIC SAFETY BY EASY

  REFUGE IN BANKRUPTCY.  . . . TO WHATEVER EXTENT THESE PROVISIONS

  MAKE IT MORE PROBABLY THAT THE DEBT WILL BE PAID DESPITE THE

  DISCHARGE, EACH NO LESS REFLECTS THE STATE'S IMPORTANT DETERRENT

  INTEREST.  CONGRESS HAD NO THOUGHT OF AMENDING THE BANKRUPTCY ACT

  WHEN IT ADOPTED THIS LAW FOR THE DISTRICT OF COLUMBIA; WE DO NOT

  BELIEVE UTAH'S IDENTICAL STATUTE CONFLICTS WITH IT EITHER. 

      "UTAH IS NOT ITS POLICE POWER AS A DEVIOUS COLLECTING AGENCY

  UNDER THE PRESSURE OF ORGANIZED CREDITORS.  VICTIMS OF CARELESS

  CAR DRIVERS ARE A WHOLLY DIFFUSED GROUP OF SHIFTING AND UNCERTAIN

  COMPOSITION, NOT EVEN REMOTELY UNITED BY A COMMON FINANCIAL

  INTEREST.  THE SAFETY RESPONSIBILITY ACT IS NOT AN ACT FOR THE

  RELIEF OF MULCTED CREDITORS.  IT IS NOT DIRECTED TO BANKRUPTS AS

  SUCH.  THOUGH IN A PARTICULAR CASE A DISCHARGED BANKRUPT WHO

  WANTS TO HAVE HIS RIGHTFULLY SUSPENDED LICENSE AND REGISTRATION

RESTORED MAY HAVE TO PAY THE AMOUNT OF A DISCHARGED DEBT, OR PART

  OF IT, THE BEARING OF THE STATUTE ON THE PURPOSES SERVED BY

  BANKRUPTCY LEGISLATION IS ESSENTIALLY TANGENTIAL."  369 U.S.,AT

  170-174 (FOOTNOTES OMITTED). 

/1/ SEE APPENDIX TO THIS OPINION, POST, P. 672. 

/2/  THE PETITIONERS URGE UPON US ONLY THE SUPREMACY CLAUSE. 

/3/  IN 1943 SOME OF THE MOTOR VEHICLE UNIFORM LAWS WERE "WITHDRAWN
FROM ACTIVE PROMULGATION PENDING FURTHER STUDY" BY THE NATIONAL
CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS.  9B U.L.A. TABLE
III, XIX, XXII, XXIII.  SEE MR. JUSTICE FRANKFURTER'S DETAILED REVIEW
OF THE DEVELOPMENT OF STATE LEGISLATION AND OF THE UNIFORM LAWS IN THIS
FIELD IN KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369 U.S. 153, 158-168
(1962). 

/4/  MR. CHIEF JUSTICE WARREN, DISSENTING IN PART, WOULD HAVE UPHELD
THE UTAH STATUTES OTHER THAN THAT "WHICH GIVES TO A CREDITOR THE
DISCRETION OF DETERMINING IF AND WHEN DRIVING PRIVILEGES MAY BE
RESTORED BY THE STATE.  . . ."  369 U.S.,AT 179-182.  MR. JUSTICE
BLACK, JOINED BY MR. JUSTICE DOUGLAS, DISSENTED ON THE GROUND THAT UTAH
CODE ANN. SEC. 41-12-15 (1953), ESSENTIALLY IDENTICAL TO ARIZONA'S SEC.
28-1163(B), OPERATED TO DENY THE JUDGMENT DEBTOR THE FEDERAL IMMUNITY
GIVEN HIM BY SEC. 17 OF THE BANKRUPTCY ACT AND, HENCE, VIOLATED THE
SUPREMACY CLAUSE.  369 U.S.,AT 182-185. 

THE PEREZES IN THEIR BRIEF, P. 7, ACKNOWLEDGE THAT THE ARIZONA
STATUTES CHALLENGED HERE "ARE NOT UNLIKE THE UTAH ONES DISCUSSED IN
KESLER."  ACCORDINGLY, ADOLFO PEREZ IS FORCED TO URGE THAT REITZ AND
THE REMAINING PORTION OF KESLER THAT BEARS UPON THE SUBJECT BE
OVERRULED.  THE COURT BOWS TO THAT ARGUMENT. 

I AM NOT PREPARED TO OVERRULE THOSE TWO CASES AND TO UNDERMINE THEIR
CONTROL OVER ADOLFO PEREZ' POSTURE HERE.  I WOULD ADHERE TO THE RULINGS
AND I WOULD HOLD THAT THE STATES HAVE AN APPROPRIATE AND LEGITIMATE
CONCERN WITH HIGHWAY SAFETY; THAT THE MEANS ARIZONA HAS ADOPTED WITH
RESPECT TO ONE IN ADOLFO'S POSITION (THAT IS, THE DRIVER WHOSE
NEGLIGENCE HAS CAUSED HARM TO OTHERS AND WHOSE JUDGMENT DEBT BASED ON
THAT NEGLIGENCE REMAINS UNSATISFIED) IN ITS ATTEMPT TO ASSURE DRIVING
COMPETENCE AND CARE ON THE PART OF ITS LICENSEES, AS WELL AS TO PROTECT
OTHERS, IS APPROPRIATE STATE LEGISLATION; AND THAT THE ARIZONA STATUTE,
LIKE ITS UTAH COUNTERPART, DESPITE THE TANGENTIAL EFFECT UPON
BANKRUPTCY, DOES NOT OPERATE IN DEROGATION OF THE BANKRUPTCY ACT OR
CONFLICT WITH IT TO THE EXTENT IT MAY RIGHTLY BE SAID TO VIOLATE THE
SUPREMACY CLAUSE. 

OTHER FACTORS OF SIGNIFICANCE ARE ALSO TO BE NOTED: 

1.  THE COURT STRUGGLES TO EXPLAIN AWAY THE PARALLEL DISTRICT OF
COLUMBIA SITUATION INSTALLED BY CONGRESS ITSELF, SECTION 40-464 OF THE
D.C. CODE ANN. (1967) IN ALL PERTINENT PARTS IS IDENTICAL WITH
ARIZONA'S SEC. 28-1163(B).  THE ONLY DIFFERENCE IS IN THE FINAL WORD,
NAMELY, "ARTICLE" IN THE ARIZONA STATUTE AND "CHAPTER" IN THE
DISTRICT'S.  THE DISTRICT OF COLUMBIA STATUTE WAS ENACTED AS SEC. 48 OF
PUB.LAW 365 OF MAY 25, 1954, EFFECTIVE ONE YEAR LATER, 68 STAT. 132. 
THIS IS LONG AFTER THE BANKRUPTCY ACT WAS PLACED ON THE BOOKS AND,
INDEED, LONG AFTER THIS COURT'S DECISION IN LEWIS V. ROBERTS, 267 U.S.
467 (1925), THAT A PERSONAL INJURY JUDGMENT IS A PROVABLE CLAIM IN
BANKRUPTCY.  SURELY, AS THE COURT NOTED IN KESLER, 369 U.S.,AT 173-174,
"CONGRESS HAD NO THOUGHT OF AMENDING THE BANKRUPTCY ACT WHEN IT ADOPTED
THIS LAW FOR THE DISTRICT OF COLUMBIA."  SEE LEE V. ENGLAND, 206
F.SUPP.  957 (DC 1962).  CONGRESS MUST HAVE REGARDED THE TWO STATUTES
AS CONSISTENT AND COMPATIBLE, AND CANNOT HAVE THOUGHT OTHERWISE FOR THE
LAST 35 YEARS.  /5/  IF THE STATUTES TRULY ARE IN TENSION, THEN I WOULD
SUPPOSE THAT THE LATER ONE, THAT IS, SEC. 40-464, WOULD BE THE ONE TO
PREVAIL.  GIBSON V. UNITED STATES, 194 U.S. 182, 192 (1904).  BUT, IF
SO, WE THEN HAVE SOMETHING LESS THAN THE "UNIFORM LAWS ON THE SUBJECT
OF BANKRUPTCIES THROUGHOUT THE UNITED STATES" THAT ART. I, SEC. 8, CL.
4, OF THE CONSTITUTION COMMANDS, FOR THE LAW WOULD BE ONE WAY IN
ARIZONA (AND, BY THE PRESENT OVERRULING OF REITZ AND KESLER, IN NEW
YORK AND IN UTAH) AND THE OTHER WAY IN THE DISTRICT OF COLUMBIA. 
UNFORTUNATELY, SUCH IS THE DILEMMA IN WHICH THE COURT'S DECISION TODAY
LEAVES US. 

2.  ARIZONA'S SEC. 28-1163(B) ALSO HAS ITS COUNTERPARTS IN THE
STATUTES OF NO LESS THAN 44 OTHER STATES.  /6/  IT IS, AFTER ALL, OR
PURPORTS TO BE, A UNIFORM ACT.  I SUSPECT THE COURT'S DECISION TODAY
WILL ASTONISH THOSE MEMBERS OF THE CONGRESS WHO WERE RESPONSIBLE FOR
THE DISTRICT OF COLUMBIA CODE PROVISION, AND WILL EQUALLY ASTONISH THE
LEGISLATURES OF THOSE 44 STATES THAT ABSORBED ASSURANCE FROM REITZ AND
KESLER THAT THE PROVISION WITHSTANDS CONSTITUTIONAL ATTACK. 

3.  THE COURT RATIONALIZES TODAY'S DECISION BY SAYING THAT KESLER
WENT BEYOND REITZ AND THAT THE PRESENT CASE GOES BEYOND KESLER, AND
THAT THAT IS TOO MUCH.  IT WOULD JUSTIFY THIS BY NOTING THE ARIZONA
SUPREME COURT'S CHARACTERIZATION OF THE ARIZONA STATUTE AS ONE FOR THE
PROTECTION OF THE PUBLIC FROM FINANCIAL HARDSHIP AND BY CONCLUDING,
FROM THIS DESCRIPTION, THAT THE STATUTE IS NOT A PUBLIC HIGHWAY SAFETY
MEASURE, BUT RATHER A FINANCIAL ONE PROTECTIVE, I ASSUME THE
IMPLICATION IS, OF INSURANCE COMPANIES.  THE ARIZONA COURT'S
CHARACTERIZATION OF ITS STATUTE, I MUST CONCEDE, IS NOT A FORTUNATE
ONE.  HOWEVER, I DOUBT THAT THAT COURT, IN EVOLVING THAT DESCRIPTION,
HAD ANY IDEA OF THE CONSEQUENCES TO BE WROUGHT BY THIS COURT'S DECISION
TODAY.  I AM NOT WILLING TO SAY THAT THE DESCRIPTION IN SCHECTER V.
KILLINGSWORTH, 93 ARIZ. 273, 380 P.2D 136 (1963), EMBRACED THE ONLY
PURPOSE OF THE STATE'S LEGISLATION.  SECTION 28-1163(B) IS A PART OF
THE STATE'S MOTOR VEHICLE SAFETY RESPONSIBILITY ACT AND DOES NOT
CONSTITUTE AN ISOLATED SUBCHAPTER OF THAT ACT CONCERNED ONLY WITH
FINANCIAL WELL-BEING OF THE VICTIMS OF DRIVERS' NEGLIGENCE.  IN ANY
EVENT, AS THE COURT'S OPINION MAKES CLEAR, THE DECISION TODAY WOULD BE
THE SAME HOWEVER THE ARIZONA COURT HAD DESCRIBED ITS STATUTE. 

4.  WHILE STARE DECISIS "IS NO IMMUTABLE PRINCIPLE,"  /7/  AS A
GLANCE AT THE COURT'S DECISIONS OVER THE LAST 35 YEARS, OR OVER ALMOST
ANY PERIOD FOR THAT MATTER, WILL DISCLOSE, IT SEEMS TO ME THAT THE
PRINCIPLE DOES HAVE PARTICULAR VALIDITY AND APPLICATION IN A SITUATION
SUCH AS THEONE CONFRONTING THE COURT IN THIS CASE.  HERE IS A STATUTE
CONCERNING MOTOR VEHICLE RESPONSIBILITY, A SUBSTANTIVE MATTER
PECULIARLY WITHIN THE COMPETENCE OF THE STATE RATHER THAN THE NATIONAL
GOVERNMENT.  HERE IS A SERIOUS AND CONSCIENTIOUS ATTEMPT BY A STATE TO
LEGISLATE AND DO SOMETHING ABOUT THE PROBLEM THAT, IN TERMS OF DEATH
AND BODILY INJURY AND ADVERSE CIVILIAN EFFECT, IS SO ALARMING.  HERE IS
A STATUTE WIDELY ADOPTED BY THE SEVERAL STATES AND LEGITIMATELY ASSUMED
BY THE LAWMAKERS OF THOSE STATES TO BE CONSISTENT WITH THE BANKRUPTCY
ACT, AN ASSUMPTION ROOTED IN POSITIVE, ALBEIT DIVIDED, DECISION BY THIS
COURT, NOT ONCE, BUT TWICE.  AND HERE IS A STATUTE THE CONGRESS ITSELF,
THE VERY AUTHOR OF THE BANKRUPTCY ACT, OBVIOUSLY CONSIDERED CONSISTENT
THEREWITH.  I FEAR THAT THE COURT TODAY MAKES STARE DECISIS MEANINGLESS
AND DOWNGRADES IT TO THE LEVEL OF A TOOL TO BE USED OR CAST ASIDE AS
CONVENIENCE DICTATES.  I DOUBT IF JUSTICES ROBERTS, STONE, REED,
FRANKFURTER, MURPHY, WARREN, CLARK, HARLAN, BRENNAN, AND STEWART, WHO
CONSTITUTED THE RESPECTIVE MAJORITIES ON THE MERITS IN REITZ AND
KESLER, WERE ALL THAT WRONG. 

5.  ADOLFO'S AFFIDAVIT PROTESTATION OF HARDSHIP GOES NO FURTHER THAN
TO ASSERT A RESULTING RELIANCE UPON FRIENDS AND NEIGHBORS OR UPON
PUBLIC TRANSPORTATION OR UPON WALKING TO COVER THE SEVEN MILES FROM HIS
HOME TO HIS PLACE OF WORK; THIS IS INCONVENIENCE, PERHAPS, EVEN IN THIS
MODERN DAY WHEN WE ARE INCLINED TO EQUATE CONVENIENCE WITH NECESSITY
AND TO ESCHEW WHAT PRIOR GENERATIONS ROUTINELY ACCEPTED AS PART OF THE
DAY'S LABOR, BUT IT FALLS FAR SHORT OF THE "GREAT HARM" AND
"IRREPARABLE INJURY" THAT HE OTHERWISE ASSERTS ONLY IN GENERAL AND
CONCLUSORY TERMS.  PEREZ' PROFESSED INCONVENIENCE STANDS VIVIDLY AND
STARKLY IN CONTRAST WITH HIS VICTIMS' INJURIES.  BUT AS IS SO OFTEN THE
CASE, THE VICTIM, ONCE DAMAGED, IS SEEMINGLY BEYOND CONCERN.  WHAT
SEEMS TO BECOME IMPORTANT IS THE PERPETRATOR'S INCONVENIENCE. 

6.  IT IS CONCEDED THAT ARIZONA CONSTITUTIONALLY COULD PRESCRIBE
LIABILITY INSURANCE AS A CONDITION PRECEDENT TO THE ISSUANCE OF A
LICENSE AND REGISTRATION. 

V

        EMMA PEREZ 

EMMA PEREZ' POSTURE IS ENTIRELY DIFFERENT.  EXCEPT FOR POSSIBLE
EMOTIONAL STRAIN RESULTING FROM HER HUSBANT'S PREDICAMENT, SHE WAS IN
NO WAY INVOLVED IN THE PINKERTON ACCIDENT.  SHE WAS NOT PRESENT WHEN IT
OCCURRED AND NO NEGLIGENCE OR NONFEASANCE ON HER PART CONTRIBUTED TO
IT.  EMMA THUS FINDS HERSELF IN A POSITION WHERE, HAVING DONE NO WRONG,
SHE NEVERTHELESS IS DEPRIVED OF HER OPERATOR'S LICENSE.  THIS COMES
ABOUT BECAUSE THE PEREZ VEHICLE CONCEDEDLY WAS COMMUNITY PROPERTY UNDER
SEC. 25-211(A), AND BECAUSE, FOR SOME REASON, THE JUDGMENT WAS
CONFESSED AS TO HER AS WELL AS AGAINST HER HUSBAND.  AS ONE AMICUS
BRIEF DESCRIBES IT, EMMA, A FAULT-FREE DRIVER, "IS WITHOUT HER LICENSE
SOLELY BECAUSE SHE IS THE IMPECUNIOUS WIFE OF AN IMPECUNIOUS, NEGLIGENT
DRIVER IN A COMMUNITY PROPERTY STATE." 

AT THIS POINT A GLANCE AT THE ARIZONA COMMUNITY PROPERTY SYSTEM
PERHAPS IS INDICATED.  EMMA PEREZ WAS A PROPER NOMINAL DEFENDANT IN THE
PINKERTON LAWSUIT, SEE DONATO V. FISHBURN, 90 ARIZ. 210, 367 P.2D 245
(1961), BUT SHE WAS NOT A NECESSARY PARTY THERE.  FIRST NATIONAL BANK
V. REEVES, 27 ARIZ. 508, 517, 234 P. 556, 560 (1925); BRISTOL V. MOSER,
55 ARIZ. 185, 190-191, 99 P.2D 706, 709 (1940).  HOWEVER, A JUDGMENT
AGAINST A MARITAL COMMUNITY BASED UPON THE HUSBAND'S TORT COMMITTED
WITHOUT THE WIFE'S KNOWLEDGE OR CONSENT DOES NOT BIND HER SEPARATE
PROPERTY.  RUTH V. RHODES, 66 ARIZ. 129, 138, 185 P.2D 304, 310
(1947).  THE JUDGMENT WOULD, OF COURSE, BIND THE COMMUNITY PROPERTY
VEHICLE TO THE EXTENT PERMITTED BY ARIZONA LAW.  SEE SEC. 33-1124. 

IN ARIZONA DURING COVERTURE PERSONAL PROPERTY MAY BE DISPOSED OF
ONLY BY THE HUSBAND.  SEC. 25-211(B).  THE COMMUNITY PERSONALITY IS
SUBJECT TO THE HUSBAND'S COMINANCE IN MANAGEMENT AND CONTROL. 
MORTENSEN V. KNIGHT, 81 ARIZ. 325, 334, 305 P.2D 463, 469 (1956).  THE
WIFE HAS NO POWER TO MAKE CONTRACTS BINDING THE COMMON PROPERTY.  SEC.
25-214(A).  HER POWER TO CONTRACT IS LIMITED TO NECESSARIES FOR HERSELF
AND THE CHILDREN.  SEC. 25-215.  THUS, AS THE PARTIES APPEAR TO AGREE,
SHE COULD NEITHER ENTER INTO A CONTRACT FOR THE PURCHASE OF AN
AUTOMOBILE NOR ACQUIRE INSURANCE UPON IT EXCEPT BY USE OF HER SEPARATE
PROPERTY. 

THE COURT OF APPEALS RULED THAT MRS. PEREZ' POSTURE, AS THE INNOCENT
WIFE WHO HAD NO CONNECTION WITH THE NEGLIGENT CONDUCT THAT LED TO THE
CONFESSION AND ENTRY OF JUDGMENT, WAS, UNDER THE LOGIC OF KESLER AND
REITZ, "A DISTINCTION WITHOUT A SIGNIFICANT DIFFERENCE" EVEN THOUGH
"SHE HAD NO ALTERNATIVE."  421 F.2D 619, 622-623.  THE COURT OPINED
THAT THE SPOUSE CAN ACQUIRE AN AUTOMOBILE WITH HER SEPARATE FUNDS AND
THAT NEGLIGENT OPERATION OF IT ON SEPARATE BUSINESS WOULD THEN NOT CALL
INTO QUESTION THE LIABILITY OF THE OTHER SPOUSE.  IT DESCRIBED EMMA'S
LEGAL STATUS AS "CLOSELY ANALOGOUS" TO THAT OF THE AUTOMOBILE OWNER WHO
PERMITS ANOTHER PERSON TO DRIVE, AND IT REGARDED AS AUTHORITY CASES
UPHOLDING A STATE'S RIGHT TO REVOKE THE OWNER'S LICENSE AND
REGISTRATION AFTER JUDGMENT HAD BEEN ENTERED AGAINST HIM AND REMAINS
UNSATISFIED.  THE HUSBAND WAS DESCRIBED, UNDER ARIZONA LAW, AS THE
MANAGING AGENT OF THE WIFE IN THE CONTROL OF THE COMMUNITY AUTOMOBILE,
AND "THE DRIVER'S LICENSE OF BOTH HUSBAND AND WIFE ARE AN INTEGRAL PART
OF THE BALL OF WAX, WHICH IS THE BASIS OF THE ARIZONA COMMUNITY
PROPERTY LAWS."  THE LOSS OF HER LICENSE "IS THE PRICE AN ARIZONA WIFE
MUST PAY FOR NEGLIGENT DRIVING BY HER HUSBAND OF THE COMMUNITY VEHICLE"
WHEN THE RESULTING JUDGMENT IS NOT PAID.  421 F.2D, AT 624. 

FOR WHAT IT IS WORTH, EMMA'S AFFIDAVIT IS FAR MORE PERSUASIVE OF
HARDSHIP THAN ADOLFO'S.  SHE RELATES THE FAMILY AUTOMOBILE TO THE
CHILDREN AND THEIR MEDICAL NEEDS AND TO FAMILY PURCHASING AT DISTANT
DISCOUNT STORES.  BUT I NEED NOT, AND WOULD NOT, DECIDE HER CASE ON THE
REPRESENTATIONS IN HER AFFIDAVIT. 

I CONCLUDE THAT THE REASONING OF THE COURT OF APPEALS, IN ITS
APPLICATION TO EMMA PEREZ AND HER OPERATOR'S LICENSE, DOES NOT COMPORT
WITH THE PURPOSE AND POLICY OF THE BANKRUPTCY ACT AND THAT IT EFFECTS A
RESULT AT ODDS WITH THE SUPREMACY CLAUSE.  EMMA'S SUBORDINATE POSITION
WITH RESPECT TO THE COMMUNITY'S PERSONAL PROPERTY, AND HER COMPLETE
LACK OF CONNECTION WITH THE PINKERTON ACCIDENT AND WITH THE NEGLIGENCE
THAT OCCASIONED IT, ARE STRANGE ACCOMPANIMENTS FOR THE DEPRIVAL OF HER
OPERATOR'S LICENSE.  THE NEXUS TO THE STATE POLICE POWER, CLAIMED TO
EXIST BECUASE OF HER MARRIAGE TO THE NEGLIGENT ADOLFO AND THE COMMUNITY
PROPERTY CHARACTER OF THE ACCIDENT VEHICLE, IS, FOR ME, ELUSIVE AND
UNCONVINCING.  THE ARGUMENT BASED ON ARIZONA'S APPROPRIATE CONCERN WITH
HIGHWAY SAFETY, THAT PROMPTS ME TO ADHERE TO THE REITZ-KESLER RATIONALE
FOR ADOLFO, IS DRAINED OF ALL FORCE AND PERSUASION WHEN APPLIED TO THE
INNOCENT EMMA.  DESPITE THE UNDERLYING COMMUNITY PROPERTY LEGAL THEORY,
EMMA HAD NO "CONTROL" OVER ADOLFO'S USE OF THE VEHICLE AND SHE COULD
NOT FORBID HIS USE AS SHE MIGHT HAVE BEEN ABLE TO DO WERE IT HER
SEPARATE PROPERTY.  THUS, THE STATE PURPOSE IN DETERRING THE RECKLESS
DRIVER AND HIS UNSAFE DRIVING HAS ONLY UNDESERVED PUNITIVE APPLICATION
TO EMMA.  SHE IS PERSONALLY PENALIZED NOT ONLY WITH RESPECT TO THE
OPERATION OF THE PEREZ CAR BUT ALSO WITH RESPECT TO ANY AUTOMOBILE. 

I THEREFORE WOULD HOLD THAT UNDER THESE CIRCUMSTANCES THE STATE'S
ACTION, UNDER SEC. 28-1163(B), IN WITHHOLDING FROM EMMA HER OPERATOR'S
LICENSE IS NOT, WITHIN THE LANGUAGE OF REITZ, AN APPROPRIATE MEANS FOR
ARIZONA "TO INSURE COMPETENCE AND CARE ON THE PART OF (EMMA) AND TO
PROTECT OTHERS" USING THE HIGHWAYS, 314 U.S.,AT 36, AND THAT IT
INTERFERES WITH THE PARAMOUNT FEDERAL INTEREST IN HER BANKRUPTCY
DISCHARGE AND VIOLATES THE SUPREMACY CLAUSE.  (APPENDIX OMITTED) 

/5/  PUBLIC LAW 365 REPLACED THE ACT OF MAY 3, 1935, 49 STAT. 166,
KNOWN AS THE OWNERS' FINANCIAL RESPONSIBILITY ACT OF THE DISTRICT OF
COLUMBIA.  SECTION 3 OF THE EARLIER ACT PROVIDED, 49 STAT. 167, THAT A
JUDGMENT'S DISCHARGE IN BANKRUPTCY, AS DISTINGUISHED FROM OTHER
DISCHARGE, WOULD NOT RELIEVE THE JUDGMENT DEBTOR FROM SUSPENSION. 

/6/  ALA. CODE, TIT. 36, SEC. 74(55) (SUPP. 1969); ALASKA STAT. SEC.
28.20.350 (1962); ARK. STAT. ANN. SEC. 75-1457 (1957); CAL. VEHICLE
CODE SEC. 16372 (1960); COLO. REV. STAT. ANN. SEC. 13-7-25(2) (SUPP.
1965); CONN. GEN. STAT. REV. SEC. 14-131 (1966); DEL. CODE ANN., TIT.
21, SEC. 2943 (1953); HAWAII REV. STAT. SEC. 287-17 (1968); IDAHO CODE
49-1514 (1967); ILL. ANN. STAT., C. 95 1/2, SEC. 7-310 (1971); IOWA
CODE SEC. 321A.14(2) (1971); KAN. STAT. ANN. SEC. 8-744(B) (1964); KY.
REV. STAT. SEC. 187.420 (1962); LA. REV. STAT. ANN. SEC. 32:893 (1963);
ME. REV. STAT. ANN., TIT. 29, SEC. 783(6) (1964) (10 YEARS); MD. ANN.
CODE, ART. 66 1/2, SEC. 7-315 (1970); MICH. COMP. LAWS SEC. 257.513(B)
(SUPP. 1956); MINN. STAT. SEC. 170.33, SUBD. 5 (1967); MISS.  CODE ANN.
SEC. 8285-14(B) (1942); MO. REV. STAT. SEC. 303.110 (1959); MONT. REV.
CODES ANN. SEC. 53-431 (1961); NEB. REV. STAT. SEC. 60-519 (1968); NEV.
REV. STAT. SEC. 485.303 (1968); N.H. REV. STAT. ANN. SEC. 268:9 (1966);
N.J. STAT. ANN. SEC. 39:6-35 (SUPP. 1971); N.M. STAT. ANN. SEC. 64-24
78 (1960); N.Y. VEH.  & TRAF.  LAW SEC. 337(C) (1970); N.C. GEN. STAT.
SEC. 20-279.14 (SUPP. 1969); N.D. CENT. CODE SEC. 39-16.1-04(5) (SUPP.
1969); OHIO REV. CODE ANN. SEC. 4509.43 (SUPP. 1970); OKLA. STAT. ANN.,
TIT. 47, SEC. 7-315 (1962); PA. STAT. ANN., TIT. 75, SEC. 1414 (1960);
R.I. GEN. LAWS ANN. SEC. 31-32-15 (1969); S.C. CODE ANN. SEC. 46-748
(SUPP. 1960); S.D. COMP. LAWS ANN. SEC. 32-35-58 (1967); TENN. CODE. 
ANN.  SEC. 59-1236 (1968); TEX. REV. CIV. STAT. ANN., ART. 6701H, SEC.
14(B) (1969); UTAH CODE ANN. SEC. 41-12-15 (1953); VT. STAT. ANN., TIT.
23, SEC. 802(B) (1967); VA. CODE ANN. SEC. 46.1-444(A)(4) (SUPP. 1970)
(15 YEARS); WASH. REV. CODE ANN. SEC. 46.29.380 (1967); W. VA. CODE
ANN. SEC. 17D-4-6 (1966); WIS. STAT. SEC. 344.26(2) )1967); (CF.
ZYWICKE V. BROGLI, 24 WIS.2D 685, 130 N.W.2D 180 (1964)); WYO. STAT.
ANN. SEC. 31-299 (1967). 

SEE ALSO FLA. STAT. ANN. SEC. 324.131 (1968) AND OP. ATTY. GEN. 059
200 (1959); GA. CODE ANN. SEC. 92A-605(E)(3) (SUPP. 1970); IND. ANN.
STAT. SEC. 47-1049 (1965) AND OP. ATTY. GEN. 1936, P. 272; MASS. GEN.
LAWS ANN., C. 90, SEC. 22A (SUPP. 1971); ORE.  REV.  STAT. SEC.
486.211(5) (1967). 

/7/  MR. JUSTICE DOUGLAS, DISSENTING, IN SWIFT & CO. V. WICKHAM, 382
U.S.,AT 133. 

ANTHONY B. CHING ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

ROBERT H. SCHLOSSER ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS GARY K. NELSON, ATTORNEY GENERAL OF ARIZONA. 

BRIEFS OF AMICI CURIAE WERE FILED BY DAVID A. BINDER, RAINE EISLER,
AND PAUL L. MCKASKLE FOR THE WESTERN CENTER ON LAW AND POVERTY ET AL.,
AND BY WILLIAM D. BROWNING FOR THE NATIONAL ORGANIZATION FOR WOMEN. 
..END :





















UNITED STATES V. ARMOUR & CO., 402 U.S. 673 


       UNITED STATES V. ARMOUR & CO. ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

  NORTHERN DISTRICT OF ILLINOIS

        NO. 759.  ARGUED APRIL 19, 1971-- DECIDED JUNE 1, 1971 


THE OWNERSHIP OF THE MAJORITY OF THE STOCK OF ARMOUR & CO., A
MEATPACKER, BY GREYHOUND CORP., WHICH HAS RETAIL FOOD SUBSIDIARIES AND
ACCORDINGLY ENGAGES IN BUSINESS THAT MAY BE FORBIDDEN TO ARMOUR BY THE
MEAT PACKERS CONSENT DECREE OF 1920, IN ITSELF AND WITHOUT ANY
EVIDENTIARY SHOWING AS TO THE CONSEQUENCES, DOES NOT VIOLATE THE
DECREE'S PROHIBITION AGAINST ARMOUR'S "DIRECTLY OR INDIRECTLY . . .
ENGAGING IN OR CARRYING ON" THE FORBIDDEN BUSINESS.  PP. 674-683. 

AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND HARLAN AND STEWART, JJ., JOINED.  DOUGLAS, J., FILED A
DISSENTING OPINION, IN WHICH BRENNAN, JJ., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

HERE AS IN UNITED STATES V. ARMOUR & CO., 398 U.S. 268, WE HAVE BEEN
ASKED TO DETERMINE IF THE MEAT PACKERS CONSENT DECREE OF 1920, WHICH
PROHIBITS ARMOUR & CO. FROM DEALING DIRECTLY OR INDIRECTLY IN CERTAIN
SPECIFIED COMMODITIES, PROHIBITS A CORPORATION THAT MAY DEAL IN SOME OF
THOSE SPECIFIED COMMODITIES FROM ACQUIRING A CONTROLLING INTEREST IN
ARMOUR.  WHEN THIS DECREE WAS HERE LAST TERM THE GOVERNMENT WAS SEEKING
TO PREVENT GENERAL HOST, A COMPANY ENGAGED IN THE MANUFACTURE AND SALE
OF A VARIETY OF FOOD PRODUCTS, FROM ACQUIRING CONTROL OF ARMOUR.  WHILE
THAT CASE WAS PENDING, GENERAL HOST AGREED TO SELL ITS INTEREST IN
ARMOUR TO GREYHOUND CORP., A REGULATED MOTOR CARRIER.  AFTER THE
REQUIRED APPROVAL WAS OBTAINED FROM THE INTERSTATE COMMERCE COMMISSION,
THE TRANSACTION CONSUMMATED.  THIS COURT THEN DISMISSED THE ACTION
AGAINST GENERAL HOST AS MOOT.  398 U.S. 268. 

THE GOVERNMENT THEN PROCEEDED AGAINST GREYHOUND AS IT HAD AGAINST
GENERAL HOST AND FILED A PETITION IN THE DISTRICT COURT ALLEGING THAT
GREYHOUND'S ENGAGEMENT IN BUSINESSES /1/  FORBIDDEN TO ARMOUR OR ANY
FIRM IN WHICH ARMOUR HAS A DIRECT OR INDIRECT INTEREST, AND THAT
GREYHOUND'S OWNERSHIP OF ARMOUR CREATE A RELATIONSHIP FORBIDDEN BY THE
1920 CONSENT DECREE.  THE DISTRICT COURT, AS IT HAD WHEN GENERAL HOST'S
OWNERSHIP OF ARMOUR WAS AT ISSUE, HELD THAT THE CONSENT DECREE DID NOT
PROHIBIT SUCH ACQUISITIONS.  THE GOVERNMENT APPEALED. 

THIS CASE DOES NOT INVOLVE THE QUESTION WHETHER THE ACQUISITION OF A
MAJORITY OF ARMOUR STOCK BY GREYHOUND IS ILLEGAL UNDER THE ANTITRUST
LAWS.  IF THE GOVERNMENT HAD WISHED TO TEST THAT PROPOSITION, IT COULD
HAVE BROUGHT AN ACTION TO ENJOIN THE ACQUISITION UNDER SEC. 7 OF THE
CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15 U.S.C. 18.  ALTERNATIVELY, IF
THE GOVERNMENT BELIEVED THAT CHANGED CONDITIONS WARRANTED FURTHER
RELIEF AGAINST THE ACQUISITION, IT COULD HAVE SOUGHT MODIFICATION OF
THE MEAT PACKERS DECREE ITSELF.  /2/ IT TOOK NEITHER OF THOSE STEPS,
BUT, RATHER, SOUGHT TO ENJOIN THE ACQUISITION UNDER THE DECREE AS
ORIGINALLY WRITTEN.  THUS THE CASE PRESENTS ONLY THE NARROW QUESTION
WHETHER OWNERSHIP OF A MAJORITY OF STOCK IN ARMOUR BY A COMPANY THAT
ENGAGES IN BUSINESS FORBIDDEN TO ARMOUR BY THE DECREE, IN ITSELF AND
WITHOUT ANY EVIDENTIARY SHOWING AS TO THE CONSEQUENCES, VIOLATES THE
PROHIBITION AGAINST ARMOUR'S "DIRECTLY OR INDIRECTLY . . . ENGAGING IN
OR CARRYING ON" THAT FORBIDDEN BUSINESS. 

ON FEBRUARY 27, 1920, THE UNITED STATES FILED A BILL IN EQUITY
AGAINST THE NATION'S FIVE LARGEST MEATPACKERS, INCLUDING ARMOUR, AND
AGAINST THEIR SUBSIDIARY CORPORATIONS AND CONTROLLING STOCKHOLDERS,
CHARGING CONSPIRATORIAL AND INDIVIDUAL ATTEMPTS TO MONOPOLIZE A
SUBSTANTIAL PART OF THE NATION'S FOOD SUPPLY.  THE BILL FURTHER ALLEGED
THAT THE PACKERS, HAVING GAINED MONOPOLY POWER IN THE MEAT BUSINESS,
WERE ATTEMPTING TO DESTROY COMPETITION IN PRODUCTS WHICH MIGHT BE
SUBSTITUTED FOR MEAT.  THAT OBJECTIVE WAS BEING PURSUED THROUGH THE
ACQUISITION OF NONMEAT FOOD COMPANIES AND BY MEANS OF EXCLUSIVE OUTPUT
CONTRACTS WITH SUPPLIERS.  THE PRAYER FOR RELIEF SOUGHT, ALONG WITH
OTHER PROHIBITIONS AGAINST THE DEFENDANTS' ATTEMPTS TO MONOPOLIZE, THE
DIVESTITURE OF MOST OF THEIR NONPACKING OPERATIONS AND THE PERMANENT
EXCLUSION OF THEM FROM THE SUBSTITUTE FOOD BUSINESS. 

THE BILL FURTHER ALLEGED THAT THE PACKERS, HAVING GAINED MONOPOLY
POWER IN THE MEAT BUSINESS, WERE ATTEMPTING TO DESTROY COMPETITION IN
PRODUCTS WHICH MIGHT BE SUBSTITUTED FOR MEAT.  THAT OBJECTIVE WAS BEING
PURSUED THROUGH THE ACQUISITION OF NONMEAT FOOD COMPANIES AND BY MEANS
OF EXCLUSIVE OUTPUT CONTRACTS WITH SUPPLIERS.  THE PRAYER FOR RELIEF
SOUGHT, ALONG WITH OTHER PROHIBITIONS AGAINST THE DEFENDANTS' ATTEMPTS
TO MONOPOLIZE, THE DIVESTITURE OF MOST OF THEIR NONPACKING OPERATIONS
AND THE PERMANENT EXCLUSION OF THEM FROM THE SUBSTITUTE FOOD BUSINESS. 

ON THE SAME DAY AS THE COMPLAINT WAS FILED, DEFENDANTS FILED THEIR
ANSWER, DENYING ITS ESSENTIAL ALLEGATIONS, AND BOTH SIDES FILED A
STIPULATION TO A CONSENT DECREE, GRANTING THE GOVERNMENT THE LARGEST
PART OF THE RELIEF IT HAD SOUGHT.  PARAGRAPH FOURTH OF THE DECREE
ENJOINED THE CORPORATE DEFENDANTS, INCLUDING ARMOUR, FROM "EITHER
DIRECTLY OR INDIRECTLY BY THEMSELVES OR THROUGH THEIR OFFICERS,
DIRECTORS, AGENTS, OR SERVANTS, ENGAGING IN OR CARRYING ON, EITHER BY
CONCERT OF ACTION OR OTHERWISE . . . THE MANUFACTURING, JOBBING,
SELLING . . . DISTRIBUTING, OR OTHERWISE DEALING IN" A LONG LIST OF
FOOD AND OTHER PRODUCTS SOLD BY GROCERY STORES.  PARAGRAPH FOURTH
FURTHER ENJOINED THE CORPORATE DEFENDANTS FROM "OWNING, EITHER DIRECTLY
OR INDIRECTLY . . . ANY CAPITAL STOCK OR OTHER INTERESTS WHATSOEVER" IN
ANY BUSINESS WHICH DEALT IN THESE COMMODITIES.  /3/ 

PARAGRAPH EIGHTEENTH OF THE DECREE PROVIDED THAT THE COURT SHOULD
RETAIN JURISDICTION OF THE CASES "FOR THE PURPOSE OF TAKING SUCH OTHER
ACTION OR ADDING TO THE FOOT OF THIS DECREE SUCH OTHER RELIEF, IF ANY,
AS MAY BECOME NCESSARY OR APPROPRIATE FOR THE CARRYING OUT AND
ENFORCEMENT OF THIS DECREE." 

SINCE 1920, THE DECREE HAS WITHSTOOD A MOTION TO VACATE IT IN ITS
ENTIRETY, SWIFT & CO. V. UNITED STATES, 276 U.S. 311 (1928), AND TWO
ATTEMPTS ON THE PART OF THE DEFENDANTS TO HAVE IT MODIFIED IN LIGHT OF
ALLEGED CHANGED CIRCUMSTANCES.  UNITED STATES V. SWIFT & CO., 286 U.S.
106 (1932); UNITED STATES V. SWIFT & CO., 189 F.SUPP.  885, 892 (ND
ILL. 1960), AFF'D, 367 U.S. 909 (1961).  THUS THE DECREE STOOD AT THE
TIME THIS CASE AROSE, AND STILL STANDS, AS ORIGINALLY WRITTEN. 

THE GOVERNMENT DOES NOT CONTEND THAT GREYHOUND'S ACQUISITION OF
CONTROLLING INTEREST IN ARMOUR SUBJECTS GREYHOUND TO PUNISHMENT FOR
CONTEMPT SINCE IT WAS NOT A PARTY TO THE DECREE.  NOR DOES THE
GOVERNMENT CONTEND THAT GREYHOUND HAS ACTED "IN ACTIVE CONCERT OR
PARTICIPATION WITH" A PARTY.  /4/  INSTEAD, THE GOVERNMENT ARGUES THAT
GREYHOUND SHOULD HAVE BEEN BROUGHT BEFORE THE DISTRICT COURT, WHICH
RETAINED THE BUSINESS AFFAIRS OF ARMOUR, AND BE REQUIRED TO DIVEST
ITSELF OF THE ARMOUR STOCK. 

THE CONTENTION IS THAT THE ACQUISITION VIOLATES THE DECREE SINCE IT
CAUSES ARMOUR TO BE ENGAGED IN ACTIVITIES PROHIBITED BY THE DECREE. 
THE CLAIM IS THAT GREYHOUND IS ENGAGED IN BUSINESSES THAT THE DECREE
PROHIBITS ARMOUR FROM BEING ENGAGED IN AND THE DECREE'S PURPORTED
PURPOSE OF SEPARATING THE MEATPACKERS FROM THE RETAIL FOOD BUSINESS IS
THUS CIRCUMVENTED. 

BUT WHILE STRUCTURAL SEPARTATION OF THIS KIND MAY HAVE BEEN THE
GOVERNMENT'S OVERALL AIM, THE DECREE ITSELF, CAREFULLY WORKED OUT
BETWEEN THE PARTIES IN EXCHANGE FOR THEIR RIGHT TO LITIGATE THE ISSUES,
DOES NOT EFFECT A COMPLETE SEPARATION, BUT, RATHER, PROHIBITS
PARTICULAR ACTIONS AND RELATIONSHIPS NOT INCLUDING THE ONE HERE IN
QUESTION.  THE CRUCIAL PROVISION, PARAGRAPH FOURTH, FORBIDS THE
CORPORATE DEFENDANTS FROM "ENGAGING IN OR CARRYING ON" COMMERCE IN THE
ENUMERATED PRODUCT LINES.  THIS LANGAUGE, TAKEN IN ITS NATURAL SENSE,
BARS ONLY ACTIVE CONDUCT ON THE PART OF THE DEFENDANTS.  THUS ARMOUR
COULD NOT TRADE IN THESE PRODUCTS, EITHER UNDER ITS OWN CORPORATE FORM,
OR THROUGH ITS "OFFICERS, DIRECTORS, AGENTS, OR SERVANTS."  THE ENTRY
OF ARMOUR INTO THE GROCERY BUSINESS THROUGH SUBSIDIARIES IS CLEARLY AND
DRACONICALLY PREVENTED BY THE SEPARATE PROVISION OF PARAGRAPH FOURTH
FORBIDDING THE DEFENDANT MEATPACKERS FROM OWNING "ANY . . . INTERESTS
WHATSOEVER"  /6/  IN A FIRM TRADING IN THE ENUMERATED COMMODITIES.  IN
THE GOVERNMENT'S VIEW THESE PROHIBITIONS ALSO BAR ARMOUR FROM HAVING
ANY OWNERSHIP RELATIONSHIP WITH CORPORATIONS LIKE GREYHOUND.  THE
GOVERNMENT CONTENDS THAT ARMOUR HAS AN OBLIGATION NOT TO ENGAGE
DIRECTLY OR INDIRECTLY IN LEGAL OR ECONOMIC ASSOCIATION WITH FIRMS IN
THE RETAIL FOOD BUSINESS.  IT REFERS TO THE PROHIBITED RELATIONSHIP
BETWEEN ARMOUR AND GREYHOUND. 

BUT THE DECREE DOES NOT SPEAK IN TERMS OF RELATIONSHIPS IN GENERAL,
BUT, RATHER, PROHIBITS CERTAIN BEHAVIOR, AND IN DOING SO PROHIBITS SOME
BUT NOT ALL ECONOMIC INTERRELATIONSHIP BETWEEN ARMOUR AND THE RETAIL
FOOD BUSINESS.  ARMOUR MAY NOT CARRY ON OR ENGAGE IN THAT BUSINESS, NOR
MAY IT ACQUIRE ANY INTEREST IN ANY FIRM IN THAT BUSINESS, BUT THERE IS
NO PROHIBITION AGAINST SELLING ANY INTEREST TO A GROCERY FIRM, OR MORE
GENERALLY AGAINST ENTERING INTO AN OWNERSHIP RELATIONSHIP WITH SUCH A
FIRM.  /7/  IF THE PARTIES HAD AGREED TO SUCH A PROHIBITION, THEY COULD
HAVE CHOSEN LANGUAGE THAT WOULD HAVE ESTABLISHED THE SORT OF
PROHIBITION THAT THE GOVERNMENT NOW SEEKS. 

IF THE PARTIES HAD AGREED TO PROHIBIT THE KIND OF TRANSACTION HERE
INVOLVED, THAT END COULD ALSO HAVE BEEN ACCOMPLISHED THROUGH THE
PROVISION OF THE DECREE RUNNING AGAINST THE STOCKHOLDERS OF THE
DEFENDANT MEATPACKERS.  MANY OF THE CONTROLLING STOCKHOLDERS WERE
DEFENDANTS IN THE 1920 ACTION, AND THE DECREE PROHIBITS CERTAIN CONDUCT
ON THEIR PART IN PARAGRAPH FIFTH.  /8/  THAT PARAGRAPH PROHIBITS THE
INDIVIDUAL DEFENDANTS FROM OWNING A HALF INTEREST OR MORE IN ANY FIRM
ENGAGED IN THE PRODUCT LINES ENUMERATED IN PARAGRAPH FOURTH.  THIS
PROHIBITION, THROUGH ITS NEGATIVE IMPLICATIONS, REFUTES THE
GOVERNMENT'S ARGUMENT THAT THE DECREE ESTABLISHED A COMPLETE STRUCTURAL
SEPARATION BETWEEN THE DEFENDANT CORPORATIONS AND THE RETAIL FOOD
BUSINESS.  FOR IT ALLOWS A CONTROLLING STOCKHOLDER OF A MEATPACKER TO
OWN A CONTROLLING, THOUGH NOT A MAJORITY, INTEREST IN A GROCERY FIRM--
SAY 49% OF THE COMMON STOCK, A FIGURE WHICH IN ALL BUT THE MOST UNUSUAL
CORPORATE SITUATION WOULD REPRESENT DE FACTO CONTROL. 

PERHAPS MORE IMPORTANT, THE PROHIBITIONS OF PARAGRAPH FIFTH RUN ONLY
AGAINST THE NAMED STOCKHOLDERS AND NOT AGAINST THEIR SUCCESSORS AND
ASSIGNS.  IF A "SUCCESSORS AND ASSIGNS" CLAUSE HAD BEEN INCLUDED, THE
GOVERNMENT COULD ARGUE WITH SOME PERSUASIVENESS THAT OWNERSHIP OF A
MEATPACKER BY A CONTROLLING INTEREST IN A RETAIL FOOD FIRM PROHIBITED. 
AND THE PARTIES WERE ABLE TO USE THE WORDS "SUCCESSORS AND ASSIGNS"
WHEN THEY WANTED TO.  PARAGRAPH THIRD, WHICH PROHIBITS THE CORPORATE
DEFENDANTS FROM USING THEIR DISTRIBUTION FACILITIES TO HANDLE THE
COMMODITIES NAMED IN PARAGRAPH FOURTH, EXPRESSLY RUNS AGAINST THE
CORPORATIONS AND THEIR "SUCCESSORS AND ASSIGNS." 

IN SHORT, WE DO NOT FIND IN THE DECREE A STRUCTURAL SEPARATION SUCH
AS THE GOVERNMENT CLAIMS.  ON THE ONE HAND, THE DECREE LEAVES GAPS
INCONSISTENT WITH SO COMPLETE A SEPARATION; ON THE OTHER, LANGUAGE THAT
WOULD HAVE BEEN APT EITHER TO CREATE A COMPLETE SEPARATION OR TO BAR
WITH PARTICULARITY THE SORT OF TRANSACTION INVOLVED HERE WAS NOT USED. 

STEPPING BACK FROM THIS ANALYSIS OF THE TERMS OF THE 1920 DECREE, WE
ARE CONFRONTED WITH THE GOVERNMENT'S ARGUMENT THAT TO ALLOW GREYHOUND
TO TAKE OVER ARMOUR WOULD ALLOW THE SAME KIND OF ANTICOMPETITIVE EVILS
THAT THE 1920 SUIT WAS BROUGHT TO PREVENT.  IN ITS 1920 SUIT, THE
GOVERNMENT SOUGHT TO INSULATE THE LARGE MEATPACKERS FROM THE GROCERY
BUSINESS, BOTH TO PREVENT THE DESTRUCTION OF COMPETITION IN THAT
BUSINESS, AND TO PREVENT CONSOLIDATION OF THE PACKERS' MONOPOLY CONTROL
OF THE MEAT BUSINESS BY CONTROLLING COMMERCE IN PRODUCTS THAT MIGHT BE
SUBSTITUTES FOR MEAT.  THOSE PURPOSES, THE GOVERNMENT SAYS, ARE
FRUSTRATED AS MUCH BY A RETAIL FOOD COMPANY'S ACQUISITION OF A
MEATPACKER AS THEY WOULD BE BY A MEATPACKER'S ENTRY INTO THE RETAIL
FOOD BUSINESS. 

THIS ARGUMENT WOULD HAVE GREAT FORCE IF ADDRESSED TO A COURT THAT
HAD THE RESPONSIBILITY FOR FORMULATING ORIGINAL RELIEF IN THIS CASE,
AFTER THE FACTUAL AND LEGAL ISSUES RAISED BY THE PLEADINGS HAD BEEN
LITIGATED.  IT MIGHT BE A PERSUASIVE ARGUMENT FOR MODIFYING THE
ORIGINAL DECREE, AFTER FULL LITIGATION, ON A CLAIM THAT UNFORESEEN
CIRCUMSTANCES NOW MADE ADDITIONAL RELIEF DESIRABLE TO PREVENT THE EVILS
AIMED AT BY THE ORIGINAL COMPLAINT.  /9/  HERE, HOWEVER, WHERE WE DEAL
WITH THE CONSTRUCTION OF AN EXISTING CONSENT DECREE, SUCH AN ARGUMENT
IS OUT OF PLACE. 

CONSENT DECREES ARE ENTERED INTO BY PARTIES TO A CASE AFTER CAREFUL
NEGOTIATION HAS PRODUCED AGREEMENT ON THEIR PRECISE TERMS.  THE PARTIES
WAIVE THEIR RIGHT TO LITIGATE THE ISSUES INVOLVED IN THE CASE AND THUS
SAVE THEMSELVES THE TIME, EXPENSE, AND INEVITABLE RISK OF LITIGATION. 
NATURALLY, THE AGREEMENT REACHED NORMALLY EMBODIES A COMPROMISE; IN
EXCHANGE FOR THE SAVING OF COST AND ELIMINATION OF RISK, THE PARTIES
EACH GIVE UP SOMETHING THEY MIGHT HAVE WON HAD THEY PROCEEDED WITH THE
LITIGATION.  THUS THE DECREE ITSELF CANNOT BE SAID TO HAVE A PURPOSE;
RATHER THE PARTIES HAVE PURPOSES, GENERALLY OPPOSED TO EACH OTHER, AND
THE RESULTANT DECREE EMBODIES AS MUCH OF THOSE OPPOSING PURPOSES AS THE
RESPECTIVE PARTIES HAVE THE BARGAINING POWER AND SKILL TO ACHIEVE. 
/10/  FOR THESE REASONS, THE SCOPE OF A CONSENT DECREE MUST BE
DISCERNED WITHIN ITS FOUR CORNERS, AND NOT BY REFERENCE TO WHAT MIGHT
SATISFY THE PURPOSES OF ONE OF THE PARTIES TO IT.  BECAUSE THE
DEFENDANT HAS, BY THE DECREE, WAIVED HIS RIGHT TO LITIGATE THE ISSUES
RAISED, A RIGHT GUARANTEED TO HIM BY THE DUE PROCESS CLAUSE, THE
CONDITIONS UPON WHCIH HE HAS GIVEN THAT WAIVER MUST BE RESPECTED, AND
THE INSTRUMENT MUST BE CONSTRUED AS IT IS WRITTEN, AND NOT AS IT MIGHT
HAVE BEEN WRITTEN HAD THE PLAINTIFF ESTABLISHED HIS FACTUAL CLAIMS AND
LEGAL THEORIES IN LITIGATION.     THIS COURT HAS RECOGNIZED THESE
PRINCIPLES BEFORE.  IN HUGHES V. UNITED STATES, 342 U.S. 353 (1952),
THE GOVERNMENT SOUGHT TO CONSTRUE A CONSENT DECREE THAT GAVE THE
DEFENDANT THE OPTION OF SELLING HIS STOCK OR PUTTING IT IN A VOTING
TRUST AS REQUIRING HIM TO SELL THE STOCK WITHIN A REASONABLE TIME EVEN
THOUGH HE CHOSE THE VOTING TRUST ALTERNATIVE, BECAUSE THE PRO
COMPETITIVE PURPOSE OF THE DECREE WOULD OTHERWISE BE FRUSTRATED.  THE
COURT RESPONDED: 

"IT MAY BE TRUE AS THE GOVERNMENT NOW CONTENDS THAT HUGHES' LARGE
BLOCK OF OWNERSHIP IN BOTH TYPES OF COMPANIES ENDANGERS THE
INDEPENDENCE OF EACH.  EVIDENCE MIGHT SHOW THAT A SALE BY HUGHES IS
INDISPENSABLE IF COMPETITION IS TO BE PRESERVED.  HOWEVER, IN SECTION V
THE PARTIES AND THE DISTRICT COURT PROVIDED THEIR OWN DETAILED PLAN TO
NEUTRALIZE THE EVILS FROM SUCH OWNERSHIP.  WHATEVER JUSITIFICATION
THERE MAY BE NOW OR HEREAFTER FOR NEW TERMS THAT REQUIRE A SALE OF
HUGHES' STOCK, WE THINK THERE IS NO FAIR SUPPORT FOR READING THAT
REQUIREMENT INTO THE LANGUAGE OF SECTION V."  342 U.S.,AT 357. 

IN UNITED STATES V. ATLANTIC REFINING CO., 360 U.S. 19 (1959), THE
GOVERNMENT SOUGHT AN ORDER LIMITING THE DIVIDENDS PAYABLE BY COMMON
CARRIERS TO SHIPPER-OWNERS, UNDER A CONSENT DECREE THAT ALLOWED SUCH
DIVIDENDS TO BE PAID ACCORDING TO A STATED FORMULA.  NOTING THAT THE
LANGUAGE IN WHICH THE FORMULA WAS EXPRESSED COULD "BE MADE TO SUPPORT
THE UNITED STATES' CONTENTION," BUT CHARACTERIZING THAT CONSTRUCTION AS
"STRAINED," 360 U.S.,AT 22, THE COURT STATED: 

     "THE GOVERNMENT CONTENDS THAT THE INTERPRETATION IT NOW OFFERS

  WOULD MORE NEARLY EFFECTUATE 'THE BASIC PURPOSE OF THE ELKINS AND

  INTERSTATE COMMERCE ACTS THAT CARRIERS ARE TO TREAT ALL SHIPPERS

  ALIKE.'  THIS MAY BE TRUE.  BUT IT DOES NOT WARRANT OUR

  SUBSTANTIALLY CHANGING THE TERMS OF A DECREE TO WHICH THE PARTIES

CONSENTED WITHOUT ANY ADJUDICATION OF THE ISSUES."  ID., AT 23. 

AND HERE TOO, ALTHOUGH THE RELIEF THE GOVERNMENT SEEKS MAY BE IN
KEEPING WITH THE PURPOSES OF THE ANTITRUST LAWS, WE DO NOT BELIEVE THAT
IT IS SUPPORTED BY THE TERMS OF THE CONSENT DECREE UNDER WHICH IT IS
SOUGHT. 

              AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE BLACKMUN TOOK NO PART IN THE
CONSIDERATION OR THE DECISION OF THIS CASE. 

/1/  THE GOVERNMENT CLAIMS THAT TWO OF GREYHOUND'S WHOLLY OWNED
SUBSIDIARIES ARE ENGAGED IN THE RETAIL FOOD BUSINESS.  PROPHET FOODS
CO., AN INDUSTRIAL CATERING COMPANY, OPERATES EATING FACILITIES IN
INDUSTRIAL PLANTS, SCHOOLS, HOSPITALS, NURSING HOMES, AND OTHER
COMMERCIAL ESTABLISHMENTS.  IN 1968 PROPHET'S SALES WERE IN EXCESS OF
$77 MILLION.  POST HOUSES, INC., OPERATES RESTAURANTS IN BUS STATIONS
AND AT REST AND MEAL STOP LOCATIONS.  POST HOUSES HAD SALES IN EXCESS
OF $33 MILLION IN 1968. 

/2/  SEE CHRYSLER CORP. V. UNITED STATES, 316 U.S. 556 (1942); AND
SEE GENERALLY NOE, FLEXIBILITY AND FINALITY IN ANTITRUST CONSENT
DECREES, 80 HARV.L.REV.  1303 (1967). 

/3/  PARAGRAPH EIGHTH MADE IDENTICAL PROVISIONS WITH RESPECT TO
CERTAIN DAIRY COMMODITIES. 

/4/  FED. RULE CIV. PROC. 65(D) PROVIDES: 

"EVERY ORDER GRANTING AN INJUNCTION . . . IS BINDING ONLY UPON THE
PARTIES TO THE ACTION, THEIR OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND
ATTORNEYS, AND UPON THOSE PERSONS IN ACTIVE CONCERT OR PARTICIPATION
WITH THEM WHO RECEIVE ACTUAL NOTICE OF THE ORDER BY PERSONAL SERVICE OR
OTHERWISE." 

/5/  SECTION 5 OF THE SHERMAN ACT, 26 STAT. 210, 15 U.S.C. 5,
PROVIDES: 

"WHENEVER IT SHALL APPEAR TO THE COURT BEFORE WHICH ANY PROCEEDING
UNDER SECTION 4 OF THIS TITLE MAY BE PENDING, THAT THE ENDS OF JUSTICE
REQUIRE THAT OTHER PARTIES SHOULD BE BROUGHT BEFORE THE COURT, THE
COURT MAY CAUSE THEM TO BE SUMMONED, WHETHER THEY RESIDE IN THE
DISTRICT IN WHICH THE COURT IS HELD OR NOT; AND SUBPOENAS TO THAT END
MAY BE SERVED IN ANY DISTRICT BY THE MARSHAL THEREOF." 

/6/  THAT PORTION OF PARAGRAPH FOURTH PROVIDES: 

"(THE CORPORATION DEFENDANTS AND EACH OF THEM BE, AND THEY ARE
HEREBY, FURTHER PERPETUALLY ENJOINED AND RESTRAINED FROM OWNING, EITHER
DIRECTLY OR INDIRECTLY, SEVERALLY OR JOINTLY, BY THEMSELVES OR THROUGH
THEIR OFFICERS, DIRECTORS, AGENTS, OR SERVANTS ANY CAPITAL STOCK OR
OTHER INTERESTS WHATSOEVER IN ANY CORPORATION, FIRM, OR ASSOCIATION
EXCEPT COMMON CARRIERS, WHICH IS IN THE BUSINESS, IN THE UNITED STATES,
OF MANUFACTURING, JOBBING, SELLING, TRANSPORTING, EXCEPT AS COMMON
CARRIERS, DISTRIBUTING, OR OTHERWISE DEALING IN ANY OF THE ABOVE
DESCRIBED PRODUCTS OR COMMODITIES." 

/7/  THE GOVERNMENT CONTENDS THAT PARAGRAPH FOURTH PROHIBITS ARMOUR
FROM HAVING "ANY . . . INTERESTS WHATSOEVER" IN FIRMS ENGAGED IN THE
PROHIBITED BUSINESSES AND THAT ARMOUR AS A SUBSIDIARY OF GREYHOUND HAS
AN "INTEREST" IN THE OTHER GREYHOUND SUBSIDIARIES THAT ARE ENGAGED IN
THE RETAIL FOOD BUSINESS.  BUT PARAGRAPH FOURTH DOES NOT PROHIBIT
ARMOUR FROM HAVING ANY INTEREST; IT PROHIBITS ARMOUR FROM "OWNING" AN
INTEREST.  SEE N. 6, SUPRA.  CLEARLY, ARMOUR HAS NOTHING APPROACHING AN
OWNERSHIP INTEREST IN GREYHOUND OR GREYHOUND'S SUBSIDIARIES. 

/8/  PARAGRAPH FIFTH PROVIDES: 

"THAT THE INDIVIDUAL DEFENDANTS AND EACH OF THEM, BE, AND THEY ARE
HEREBY, PERPETUALLY ENJOINED AND RESTRAINED FROM, IN THE UNITED STATES,
EITHER DIRECTLY OR INDIRECTLY, BY THEMSELVES OR THROUGH THEIR AGENTS,
SERVANTS, OR EMPLOYEES, OWNING VOTING STOCK WHICH IN THE AGGREGATE
AMOUNTS TO 50% OR MORE OF THE VOTING STOCK OF ANY CORPORATION, EXCEPT
COMMON CARRIERS, OR ANY INTEREST IN SUCH CORPORATION RESULTING IN A
VOTING POWER AMOUNTING TO 50 PER CENT OR MORE OF THE TOTAL VOTING POWER
OF SUCH CORPORATION, OR WHICH INTEREST BY ANY DEVICE GIVES TO ANY SUCH
DEFENDANT OR DEFENDANTS A VOTING POWER OF 50 PER CENT OR MORE IN ANY
SUCH CORPORATION, OR A HALF INTEREST OR MORE IN ANY FIRM OR ASSOCIATION
WHICH CORPORATION, FIRM, OR ASSOCIATION MAY BE, IN THE UNITED STATES,
IN THE BUSINESS OF MANUFACTURING, JOBBING, SELLING, TRANSPORTING,
DISTRIBUTING, OR OTHERWISE DEALING IN . . . (SPECIFIED PRODUCTS)." 

/9/  SEE SOURCES CITED IN N. 2, SUPRA. 

/10/  CF. NOTE, FLEXIBILITY AND FINALITY, N. 2, SUPRA, AT 1314
1315. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
WHITE CONCUR, DISSENTING. 

THE ANTITRUST DECREE BEFORE US LAST TERM IN UNITED STATES V. ARMOUR
& CO., 398 U.S. 268, IS HERE AGAIN IN A NEW POSTURE.  UNDER THE
ORIGINAL DECREE OF 1920 THE DEFENDANTS WERE REQUIRED TO ABANDON THEIR
INTERESTS IN A WIDE VARIETY OF FOOD AND NONFOOD LINES.  THEY WERE
REQUIRED TO DIVEST THEMSELVES OF ANY INTEREST IN THE BUSINESSES OF
"MANUFACTURING, JOBBING, SELLING, TRANSPORTING . . . DISTRIBUTING, OR
OTHERWISE DEALING IN" SOME 114 SPECIFIED FOOD PRODUCTS AND SOME 30
OTHER PRODUCTS.  THEY WERE ENJOINED FROM "OWNING, EITHER DIRECTLY OR
INDIRECTLY . . . ANY CAPITAL STOCK OR OTHER INTERESTS WHATSOEVER IN ANY
CORPORATION . . . WHICH IS IN THE BUSINESS, IN THE UNITED STATES, OF
MANUFACTURING, JOBBING, SELLING, TRANSPORTING . . . DISTRIBUTING, OR
OTHERWISE DEALING IN ANY" OF THE PROHIBITED PRODUCTS.  UNDER THE DECREE
THE DISTRICT COURT RETAINED JURISDICTION "FOR THE PURPOSE OF TAKING
SUCH OTHER ACTION OR ADDING TO THE FOOT OF THIS DECREE SUCH OTHER
RELIEF, IF ANY, AS MAY BECOME NECESSARY OR APPROPRIATE FOR THE CARRYING
OUT AND ENFORCEMENT OF THIS DECREE." 

ARMOUR, ONE OF THE PARTIES TO THE DECREE, IS NOW THE SECOND LARGEST
MEATPACKER IN THE UNITED STATES WITH TOTAL ASSETS OF ALMOST $700
MILLION AND TOTAL SALES IN 1967 OF APPROXIMATELY $2,150,000,000.  IN
ADDITION TO MEATPACKING, ARMOUR MANUFACTURES, PROCESSES, AND SELLS
VARIOUS NONPROHIBITED PRODUCTS.  IN EARLY 1969 THE GOVERNMENT FILED A
PETITION IN FEDERAL DISTRICT COURT TO MAKE GENERAL HOST CORP., A
COMPANY ENGAGED IN THE MANUFACTURE AND SALE OF NUMEROUS FOOD PRODUCTS,
A PARTY TO THE DECREE AND FORBIT IT FROM ACQUIRING CONTROL OF ARMOUR. 
THE DISTRICT COURT HELD THAT THE DECREE PROHIBITED ARMOUR FROM HOLDING
ANY INTEREST IN A COMPANY HANDLING ANY OF THE PROHIBITED PRODUCTS BUT
DID NOT PROHIBIT SUCH A COMPANY FROM ACQUIRING ARMOUR.  THE GOVERNMENT
APPEALED THE DECISION ARGUING THAT ACQUISITION BY GENERAL HOST OF A
MAJORITY OF ARMOUR'S STOCK WOULD BE IN VIOLATION OF THE DECREE AND
GENERAL HOST SHOULD HAVE BEEN MADE A PARTY TO THE DECREE SO THAT AN
INJUNCTION COULD ISSUE.  WE NOTED PROBABLY JURISDICTION.  396 U.S.
811. 

IN THE INTERIM, GENERAL HOST ENTERED INTO AN AGREEMENT TO SELL ITS
CONTROLLING STOCK INTEREST IN ARMOUR TO GREYHOUND, A REGULATED MOTOR
CARRIER.  THE INTERSTATE COMMERCE COMMISSION APPROVED THE ACQUISITION. 
FOLLOWING GREYHOUND'S ACQUISITION, THE COURT DISMISSED THE CASE AS
MOOT.  398 U.S. 268. 

THE GOVERNMENT THEN FILED A NEW PETITION IN THE DISTRICT COURT
ALLEGING (AS IT HAD AGAINST GENERAL HOST) THAT GREYHOUND IS ENGAGED IN
BUSINESSES FORBIDDEN TO ARMOUR, OR ANY FIRM IN WHICH ARMOUR HAS A
DIRECT OR INDIRECT INTEREST, AND THEREFORE GREYHOUND'S ACQUISITION
VIOLATES THE DECREE.  THE PETITION PRAYED THAT GREYHOUND BE BROUGHT
BEFORE THE COURT UNDER SEC. 5 OF THE SHERMAN ACT AND THAT AN ORDER
SUPPLEMENTAL TO THE ORIGINAL DECREE BE ENTERED ENJOINING GREYHOUND FROM
ACQUIRING ANY ADDITIONAL STOCK OR EXERCISING CONTROL OVER OR
INFLUENCING THE BUSINESS AFFIRS OF ARMOUR, AND REQUIRING GREYHOUND TO
DIVEST ITSELF OF THE ARMOUR STOCK.  THE DISTRICT COURT DISMISSED THE
GOVERNMENT'S COMPLAINT, RULING THAT SINCE GREYHOUND WAS NOT A PARTY TO
THE ORIGINAL DECREE, GREYHOUND MAY NOT BE ENJOINED FROM "COMMITTING ANY
ACTS ON THE GROUND THAT THEY ARE PROHIBITED BY THE DECREE."  THE COURT
ALSO REJECTED THE GOVERNMENT'S ARGUMENT THAT ACQUISITION OF THE ARMOUR
STOCK PLACED THE TWO COMPANIES IN A "CORPORATE RELATIONSHIP" WHICH WAS
PROHIBITED BY THE DECREE.  THE COURT STATED "THE DECREE DOES NOT SPEAK
IN TERMS OF CORPORATE RELATIONSHIPS; IT SPEAKS IN TERMS OF THE
DEFENDANTS DEALING IN THE SPECIFIED LINES OF COMMERCE.  . . ."  THE
GOVERNMENT APPEALED. 

THE SHERMAN ACT (15 U.S.C. 5) PROVIDES: 

     "WHENEVER IT SHALL APPEAR TO THE COURT BEFORE WHICH ANY

  PROCEEDING UNDER SECTION 4 OF THIS TITLE MAY BE PENDING, THAT THE

  ENDS OF JUSTICE REQUIRE THAT OTHER PARTIES SHOULD BE BROUGHT

  BEFORE THE COURT, THE COURT MAY CAUSE THEM TO BE SUMMONED,

  WHETHER THEY RESIDE IN THE DISTRICT IN WHICH THE COURT IS HELD OR

  NOT; AND SUBPOENAS TO THAT END MAY BE SERVED IN ANY DISTRICT BY

THE MARSHAL THEREOF." 

UNDER SEC. 5 AND THE ALL WRITS ACT (28 U.S.C. 1651(A)) THE DISTRICT
COURT HAS AMPLE POWER TO PREVENT FRUSTRATION OF THE ORIGINAL DECREE. 

GREYHOUND MAY WELL HAVE DEVISED A PLAN WHICH WOULD RENDER THE
ORIGINAL DECREE NUGATORY. 

UNDER THE DECREE, NONE OF THE MEATPACKERS COULD OWN A CHAIN OF
GROCERY STORES.  YET UNDER THE INTERPRETATION OF THE DISTRICT COURT A
CHAIN OF GROCERY STORES COULD ACQUIRE A MEATPACKING COMPANY.  I DO NOT
VIEW THE DECREE SO NARROWLY.  THE EVIL AT WHICH THE DECREE IS AIMED IS
COMBINING MEATPACKERS WITH COMPANIES IN OTHER FOOD PRODUCT AREAS. 

THE AUTHORITIES SUPPORT THE PROPOSITION THAT JUDGES WHO CONSTRUE,
INTERPRET, AND ENFORCE CONSENT DECREES LOOK AT THE EVIL WHICH THE
DECREE WAS DESIGNED TO RECTIFY.  SEE NOTE, FLEXIBILITY AND FINALITY IN
ANTITRUST CONSENT DECREES, 80 HARV.L.REV.  1303, 1315.  /1/  MY
INTERPRETATION OF THE EVIL AT WHICH THIS DECREE WAS AIMED IS THE SAME
AS THAT OF MR. JUSTICE CARDOZO, WRITING FOR THIS COURT IN UNITED STATES
V. SWIFT & CO., 286 U.S. 106.  AS WE STATED IN CHRYSLER CORP. V. UNITED
STATES, 316 U.S. 556, 562, THE TEST FOR REVIEWING MODIFICATIONS IS
"WHETHER THE CHANGE SERVED TO EFFECTUATE OR TO THWART THE BASIC PURPOSE
OF THE ORIGINAL CONSENT DECREE." 

NEITHER HUGHES V. UNITED STATES, 342 U.S. 353, NOR UNITED STATES V.
ATLANTIC REFINING CO., 360 U.S. 19, RELIED ON BY THE COURT, IS TO THE
CONTRARY.  HUGHES INVOLVED A GOVERNMENT ATTEMPT TO REQUIRE THE TRUSTEE
TO SELL STOCK IN A VOTING TRUST WHERE THE CONSENT DECREE EXPRESSLY
ALLOWED HUGHES A CHOICE OF SELLING THE STOCK HIMSELF OR PLACING THE
STOCK IN A VOTING TRUST "UNTIL HOWARD R. HUGHES SHALL HAVE SOLD HIS
HOLDINGS OF STOCK."  ATLANTIC REFINING WAS A CASE WHERE FOR 16 YEARS,
RIGHT UNTIL THE EVE OF THE LITIGATION, BOTH PARTIES HAD CONSTRUED THE
DECREE IN ONE WAY.  THEN THE GOVERNMENT CHANGED ITS INTERPRETATION NOT
BECAUSE IT WOULD EFFECTUATE THE PURPOSES OF THE DECREE BUT BECAUSE IT
"WOULD MORE NEARLY EFFECTUATE 'THE BASIC PURPOSE OF THE ELKINS AND
INTERSTATE COMMERCE ACTS.'"  360 U.S.,AT 23. 

THE EVIL AT WHICH THE PRESENT DECREE IS AIMED-- COMBINING
MEATPACKERS WITH COMPANIES IN OTHER FOOD PRODUCT AREAS-- IS PRESENT
WHETHER ARMOUR PURCHASES A COMPANY DEALING IN THE VARIOUS PROHIBITED
FOOD LINES OR WHETHER THAT COMPANY PURCHASES ARMOUR.  WHEN ANY COMPANY
PURCHASES ARMOUR IT ACQUIRES NOT ONLY ARMOUR'S ASSETS AND LIABILITIES,
BUT ALSO ARMOUR'S LEGAL DISABILITIES.  AND ONE OF ARMOUR'S LEGAL
DISABILITIES IN THAT ARMOUR CANNOT BE COMBINED WITH A COMPANY IN THE
VARIOUS FOOD LINES SET OUT IN THE DECREE. 

I READ THE DECREE TO PROHIBIT ANY COMBINATION OF THE MEATPACKING
COMPANY DEFENDANTS WITH COMPANIES DEALING IN VARIOUS FOOD LINES. 

IN THE DISTRICT COURT THE GOVERNMENT OFFERED AN AFFIDAVIT WHICH
SHOWED THAT GREYHOUND DEALS IN FOOD PRODUCTS THROUGH ITS DIVISIONS AND
WHOLLY OWNED SUBSIDIARIES, WHICH PROVIDE INDUSTRIAL CATERING SERVICES,
AND OPERATES RESTAURANTS, CAFETERIAS, AND OTHER EATING FACILITIES.  THE
AFFIDAVIT STATES THAT IN 1969 GREYHOUND HAD REVENUES OF ABOUT $124
MILLION FROM FOOD OPERATIONS WHICH ACCOUNTED FOR OVER 16% OF
GREYHOUND'S TOTAL REVENUES THAT YEAR.  GREYHOUND HAS CONTENDED THAT IT
OPERATES NO GROCERY BUSINESS AND BUYS RAW FOODSTUFFS AND SELLS PREPARED
MEALS.  THUS, GREYHOUND ARGUES, IT CAN ACQUIRE ARMOUR EVEN IF IT IS
MADE A PARTY TO THE DECREE BECAUSE THE DECREE DOES NOT PROHIBIT
MEATPACKERS FROM ENTERING THE RESTAURANT BUSINESS.  I DO NOT PASS ON
THIS CONTENTION.  RATHER, I WOULD REVERSE THE JUDGMENT OF THE DISTRICT
COURT AND REMAND THE CASE TO THAT COURT FOR ANY FURTHER PROCEEDINGS
WHICH ARE NECESSARY TO DETERMINE IF GREYHOUND'S ACQUISITION OF ARMOUR
VIOLATES THE DECREE.  IF IT DOES, THEN THE DISTRICT COURT SHOULD MAKE
GREYHOUND A PARTY TO THAT DECREE.     /1/  SEE THE CASES CITED IN NOTE,
REQUESTS BY THE GOVERNMENT FOR MODIFICATION OF CONSENT DECREES, 75 YALE
L.J. 657, 667-668, N. 56. 

DEPUTY SOLICITOR GENERAL SPRINGER ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, DEPUTY
ASSISTANT ATTORNEY GENERAL COMEGYS, AND HOWARD E. SHAPIRO. 

EDWARD L. FOOTE ARGUED THE CAUSE FOR APPELLEE GREYHOUND CORP. WITH
HIM ON THE BRIEF WAS ROBERT J. BERNARD. 
..END :

















DEWEY V. REYNOLDS METALS CO., 402 U.S. 689 


       DEWEY V. REYNOLDS METALS CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

        NO. 835.  ARGUED APRIL 20-21, 1971-- DECIDED JUNE 1, 1971 


429 F.2D 324, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

DONALD F. OOSTERHOUSE ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

WILLIAM A. COUGHLIN, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM
ON THE BRIEF WAS FRED R. EDNEY. 

DEPUTY SOLICITOR GENERAL WALLACE ARGUED THE CAUSE FOR THE UNITED
STATES AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL LEONARD, DAVID
L. ROSE, STANLEY P. HERBERT, JULIA P. COOPER, AND GEORGE H. DARDEN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY NATHAN LEWIN,
SAMUEL RABINOVE, AND SOL RABKIN FOR THE NATIONAL JEWISH COMMISSION ON
LAW AND PUBLIC AFFAIRS ET AL., AND BY PAUL S. BERGER, JOSEPH B.
ROBISON, AND BEVERLY COLEMAN FOR THE AMERICAN JEWISH CONGRESS. 

MILTON A. SMITH AND JAY S. SIEGEL FILED A BRIEF FOR THE CHAMBER OF
COMMERCE OF THE UNITED STATES AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :














ASTRUP V. IMMIGRATION SERVICE, 402 U.S. 509 


       ASTRUP V. IMMIGRATION AND NATURALIZATION SERVICE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 840.  ARGUED APRIL 20, 1971-- DECIDED MAY 24, 1971 


PETITIONER, AN ALIEN, AGREED TO GIVE UP HIS RIGHT TO BECOME AN
AMERICAN CITIZEN IN EXCHANGE FOR EXEMPTION FROM MILITARY SERVICE,
PURSUANT TO SEC. 4(A) OF THE SELECTIVE SERVICE ACT OF 1948.  AFTER THAT
FOUND TO BE PHYSICALLY UNFIT.  HIS SUBSEQUENT PETITION FOR
NATURALIZATION WAS DENIED ON THE GROUND THAT HE WAS DEBARRED FROM
CITIZENSHIP.  SECTION 315 OF THE IMMIGRATION AND NATIONALITY ACT OF
1952 PROVIDES THAT ANY ALIEN WHO HAS APPLIED FOR EXEMPTION FROM
MILITARY SERVICE ON THE GROUND OF ALIENAGE "AND IS OR WAS RELIEVED . .
. FROM SUCH TRAINING OR SERVICE ON SUCH GROUND, SHALL BE PERMANENTLY
INELIGIBLE TO BECOME A CITIZEN OF THE UNITED STATES."  HELD:  UNDER
SEC. 315 AN ALIEN WHO REQUESTS EXEMPTION FROM MILITARY SERVICE IS TO BE
HELD TO HIS AGREEMENT TO RELINQUISH ALL CLAIMS TO NATURALIZATION ONLY
WHEN THE GOVERNMENT COMPLETELY AND PERMANENTLY EXEMPTS HIM FROM SERVICE
IN THE ARMED FORCES.  PP. 511-514. 

432 F.2D 438, REVERSED AND REMANDED. 

BLACK, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS EXCEEDINGLY SIMPLE.  BY SIGNING SSS FORM
130-- APPLICATION BY ALIEN FOR RELIEF FROM TRAINING AND SERVICE IN THE
ARMED FORCES-- THE PETITIONER, IB OTTO ASTRUP, A NATIVE OF DENMARK,
AGREED TO GIVE UP HIS RIGHT TO BECOME AN AMERICAN CITIZEN, AND IN
EXCHANGE, THE UNITED STATES, PURSUANT TO SEC. 4(A) OF THE SELECTIVE
SERVICE ACT OF 1948, 62 STAT. 605, 50 U.S.C. APP. 454(A) (1946 ED.,
SUPP. III), AGREED TO GIVE UP THE RIGHT TO INDUCT ASTRUP INTO THE
UNITED STATES ARMED FORCES.  CONGRESS LATER REPEALED THE LAW UNDER
WHICH ASTRUP WAS EXEMPTED FROM MILITARY SERVICE, RENEGING ON ITS PART
OF THE BARGAIN WITH HIM.  /1/  UNIVERSAL MILITARY TRAINING AND SERVICE
ACT SEC. 4(A), 65 STAT. 76, 50 U.S.C. APP. 454(A) (1952 ED.). 
THEREAFTER THE SELECTIVE SERVICE SYSTEM ATTEMPTED TO DRAFT ASTRUP AND
WOULD HAVE SUCCEEDED IN PUTTING HIM INTO UNIFORM BUT FOR THE FACT THAT
HE WAS FOUND TO BE PHYSICALLY UNFIT FOR THE DRAFT.  LATER, WHEN ASTRUP
DECIDED THAT HE WOULD LIKE TO BECOME AN AMERICAN CITIZEN, THE
GOVERNMENT ATTEMPTED TO ENFORCE ASTRUP'S PROMISE EVEN THOUGH IT WAS
UNWILLING TO KEEP ITS OWN PROMISE.  WHEN ASTRUP PETITIONED FOR
NATURALIZATION, THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA DENIED HIS PETITION ON THE GROUND THAT HE WAS
DEBARRED FROM CITIZENSHIP.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMED.  432 F.2D 438 (1970).  WE GRANTED ASTRUP'S PETITION FOR
CERTIORARI, 400 U.S. 1008 (1971), AND NOW REVERSE. 

IN SUPPORT OF THE DECISION BELOW THE UNITED STATES EMPHASIZES THE
FACT THAT ASTRUP ADMITTED HAVING READ A NOTICE PROCLAIMING THAT: 

"ANY CITIZEN OF A FOREIGN COUNTRY . . . SHALL BE RELIEVED FROM
LIABILITY FOR TRAINING AND SERVICE UNDER THIS TITLE IF, PRIOR TO HIS
INDUCTION INTO THE ARMED FORCES, HE HAS MADE APPLICATION TO BE RELIEVED
FROM SUCH LIABILITY . . .; BUT ANY PERSON WHO MAKES SUCH APPLICATION
SHALL THEREAFTER BE DEBARRED FROM BECOMING A CITIZEN OF THE UNITED
STATES."  FORM SSS 130, QUOTING SELECTIVE SERVICE ACT OF 1948, SEC.
4(A), 62 STAT. 606, 50 U.S.C. APP. 454(A)

  (1946 ED., SUPP. III).  HE FURTHER ADMITTED HAVING SIGNED A
STATEMENT SAYING, "I UNDERSTAND THAT I WILL FOREVER LOSE MY RIGHTS TO
BECOME A CITIZEN OF THE UNITED STATES.  . . ."  UPON THE BASIS OF THESE
STATEMENTS AND SEC. 4(A) OF THE SELECTIVE SERVICE ACT OF 1948, THE
UNITED STATES ARGUES THAT THE CASE IS CONTROLLED BY OUR DECISION IN
CEBALLOS V. SHAUGHNESSY, 352 U.S. 599 (1957), IN WHICH WE ENFORCED
SIMILAR CITIZENSHIP DEBARMENT PROVISIONS IN A DEPORTATION CASE ARISING
UNDER THE IMMIGRATION ACT OF 1917, SEC. 19(C), 39 STAT. 889, AS
AMENDED, 54 STAT. 672, 62 STAT. 1206, 8 U.S.C. 155(C) (1946 ED., SUPP.
V).  CEBALLOS, HOWEVER, DOES NOT GOVERN THIS CASE.  IN CEBALLOS THE
COURT SPECIFICALLY HELD THAT SEC. 315 OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 242, 8 U.S.C. 1426, WAS INAPPLICABLE
BECAUSE OF THE EFFECTIVE DATE OF THE 1952 ACT AND BECAUSE SEC. 315 WAS
EXPRESSLY INAPPLICABLE TO DEPORTATION PROCEEDINGS UNDER THE 1917 ACT. 
352 U.S.,AT 606 N. 17. 

ASTRUP, UNLIKE CEBALLOS, IS NOT INVOLVED IN A DEPORTATION PROCEEDING
UNDER THE IMMIGRATION ACT OF 1917 AND CONSEQUENTLY THE SAVING CLAUSE OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952, SEC. 405, 66 STAT. 280, IS
INAPPLICABLE.  /2/  SEE NOTE FOLLOWING 8 U.S.C. 1101.  MOREOVER, ASTRUP
PETITIONED FOR NATURALIZATION UNDER SEC. 316 OF THE 1952 ACT. 
THEREFORE, SEC. 315 OF THE 1952 ACT, NOT SEC. 4(A) OF THE SELECTIVE
SERVICE ACT OF 1948, DETERMINES THE EFFECT TO BE GIVEN TO ASTRUP'S 1950
APPLICATION FOR EXEMPTION FROM MILITARY SERVICE.  SECTION 315
PROVIDES: 

     "NOTWITHSTANDING THE PROVISIONS OF SECTION 405(B) OF THIS ACT,

  ANY ALIEN WHO APPLIES OR HAS APPLIED FOR EXEMPTION OR DISCHARGE

  FROM TRAINING OR SERVICE IN THE ARMED FORCES OR IN THE NATIONAL

  SECURITY TRAINING CORPS OF THE UNITED STATES ON THE GROUND THAT

  HE IS AN ALIEN, AND IS OR WAS RELIEVED OR DISCHARGED FROM SUCH

  TRAINING OR SERVICE ON SUCH GROUND, SHALL BE PERMANENTLY

  INELIGIBLE TO BECOME A CITIZEN OF THE UNITED STATES."  66 STAT.

  242, 8 U.S.C. 1426. 

THIS IS A TWO-PRONGED PREREQUISITE FOR THE LOSS OF ELIGIBILITY FOR
UNITED STATES CITIZENSHIP.  THE ALIEN MUST BE ONE WHO "APPLIES OR HAS
APPLIED FOR EXEMPTION OR DISCHARGE" FROM MILITARY SERVICE AND "IS OR
WAS RELIEVED OR DISCHARGED" FROM THAT SERVICE.  THERE IS NO QUESTION
THAT ASTRUP APPLIED FOR AN EXEMPTION.  THE UNITED STATES ARGUES THAT HE
WAS TEMPORARILY RELEASED FROM MILITARY SERVICE BUT RECOGNIZES THAT THE
RELEASE WAS NOT PERMANENT.  AND EVEN THE GOVERNMENT IS FORCED TO
CONCEDE THAT TEMPORARY RELEASE FROM MILITARY SERVICE IS NOT BY ITSELF
SUFFICIENT TO DEBAR AN ALIEN FROM A LATER CLAIM TO NATURALIZED
CITIZENSHIP, BECAUSE THE GOVERNMENT RECOGNIZES THE CORRECTNESS OF THE
SECOND CIRCUIT'S DECISION IN UNITED STATES V. HOELLGER, 273 F.2D 760
(1960), THAT IF AN ALIEN IS ONCE RELIEVED FROM SERVICE BUT IS LATER
COMPELLED TO PERFORM MILITARY SERVICE THE BAR TO CITIZENSHIP DOES NOT
ARISE. 

OTHER COURTS HAVE DISTINGUISHED THE HOELLGER HOLDING FROM THE
SITUATION WHERE AN ALIEN IS ONCE RELIEVED FROM MILITARY SERVICE BUT
LATER RECLASSIFIED FOR SERVICE WHICH HE NEVER PERFORMS BECAUSE OF
INTERVENING CIRCUMSTANCES SUCH AS PHYSICAL UNFITNESS.  SEE LAPENIEKS V.
IMMIGRATION AND NATURALIZATION SERVICE, 389 F.2D 343 (1968); UNITED
STATES V. HOELLGER, SUPRA, AT 762 N. 2.  HOWEVER, THERE IS NOTHING IN
THE LANGUAGE OF SEC. 315 WHICH LEADS US TO BELIEVE THAT CONGRESS
INTENDED SUCH HARSH AND BIZARRE CONSEQUENCES TO FLOW FROM AN
INDIVIDUAL'S FAILURE TO PASS A PHYSICAL EXAMINATION.  /3/  WE THINK
THAT CONGRESS USED THE WORDS "IS OR WAS RELIEVED" TO PROVIDE THAT AN
ALIEN WHO REQUESTS EXEMPTION FROM THE MILITARY SERVICE BE HELD TO HIS
AGREEMENT TO RELINQUISH ALL CLAIMS TO NATURALIZED CITIZENSHIP ONLY WHEN
THE GOVERNMENT ABIDES BY ITS PART OF THE AGREEMENT AND COMPLETELY
EXEMPTS HIM FROM SERVICE IN OUR ARMED FORCES.  /4/ 

CONSEQUENTLY, THE UNITED STATES DISTRICT COURT ERRED IN DENYING
ASTRUP'S PETITION FOR NATURALIZATION ON THE GROUND THAT HE WAS BARRED
FROM CITIZENSHIP BECAUSE HE HAD ONCE CLAIMED AN EXEMPTION FROM MILITARY
SERVICES AS AN ALIEN.  THE DECISION OF THE COURT OF APPEALS FOR THE
NINTH CIRCUIT AFFIRMING THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS ON ASTRUP'S
PETITION FOR NATURALIZATION. 

 IT IS SO ORDERED. 

/1/  ASTRUP WAS LAWFULLY ADMITTED TO THE UNITED STATES FOR PERMANENT
RESIDENCE ON FEBRUARY 20, 1950.  ON NOVEMBER 14, 1950, HE EXECUTED SSS
FORM 130, REQUESTING AN EXEMPTION FROM MILITARY SERVICE ON THE GROUND
OF ALIENAGE.  AT THAT TIME THE SELECTIVE SERVICE ACT OF 1948, SEC.
4(A), 62 STAT. 605, 50 U.S.C. APP. 454(A) (1946 ED., SUPP. III),
PROVIDED SUCH AN EXEMPTION FOR ANY ALIEN.  THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT SEC. 4(A), 65 STAT. 76, 50 U.S.C. APP. 454A)
(1952 ED.), WHICH BECAME EFFECTIVE JUNE 19, 1951, AMENDED THE EARLIER
PROVISION RELATING TO EXEMPTIONS FOR ALIENS SO THAT THE EXEMPTION WAS
NOT AVAILABLE TO ALIENS WHO WERE PERMANENT RESIDENTS OF THIS COUNTRY. 

/2/  THE UNITED STATES ARGUES THAT THE SAVING CLAUSE OF THE 1952 ACT
IS APPLICABLE, CITING UNITED STATES V. MENASCHE, 348 U.S. 528 (1955),
AND SHOMBERG V. UNITED STATES, 348 U.S. 540 (1955).  IN MENASCHE THE
COURT HELD THAT AN ALIEN WHO HAD FILED A DECLARATION OF INTENTION TO
BECOME AN AMERICAN CITIZEN HAD A "RIGHT IN THE PROCESS OF ACQUISITION"
PRESERVED BY THE SAVING CLAUSE WHICH PROVIDED:  "NOTHING CONTAINED IN
(THE 1952) ACT, UNLESS OTHERWISE SPECIFICALLY PROVIDED THEREIN, SHALL
BE CONSTRUED TO AFFECT THE VALIDITY OF ANY DECLARATION OF INTENTION.  .
. ."  THE COURT THERE FOUND NOTHING IN THE 1952 ACT THAT SPECIFICALLY
NULLIFIED MENASCHE'S DECLARATION.  IN SHOMBERG, ON THE OTHER HAND, THE
COURT FOUND IN SEC. 318 OF THE 1952 ACT, 66 STAT. 244, 8 U.S.C. 1429, A
SPECIFIC BAR TO FINAL DETERMINATION OF A NATURALIZATION PETITION BY AN
ALIEN AGAINST WHOM THERE WAS AN OUTSTANDING DEPORTATION PROCEEDING. 
THIS CASE IS MORE LIKE SHOMBERG THAN MENASCHE IN THAT SEC. 315 IS
ADDRESSED TO EVENTS WHICH MAY HAVE OCCURRED BEFORE THE EFFECTIVE DATE
OF THE 1952 ACT AND REFERS SPECIFICALLY TO THE SAVING CLAUSE AS, AT
LEAST PARTIALLY, INAPPLICABLE. 

/3/  WE FIND NO MERIT IN THE GOVERNMENT'S CONTENTION THAT ASTRUP WAS
EFFECTIVELY RELIEVED FROM MILITARY SERVICE ON ACCOUNT OF ALIENAGE
MERELY BECAUSE HE WAS FOUND TO BE MEDICALLY QUALIFIED FOR THE DRAFT ON
OCTOBER 11, 1950, BEFORE HE CLAIMED AN EXEMPTION AND WAS LATER FOUND TO
BE MEDICALLY UNFIT FOR THE DRAFT, AFTER THE GOVERNMENT REPUDIATED ITS
PART OF THE BARGAIN.  THE QUALITY OF PRE-INDUCTION PHYSICAL
EXAMINATIONS VARIES WIDELY AND THE STANDARDS OF MEDICAL FITNESS ARE
FREQUENTLY REVISED.  IN ANY EVENT, THE EXAMINATION IS PRIMARILY FOR THE
BENEFIT OF THE UNITED STATES, INSURING THAT THOSE INDUCTED ARE
PHYSICALLY CAPABLE OF PERFORMING ADEQUATELY AND THAT THE UNITED STATES
DOES NOT BECOME LEGALLY OBLIGATED TO PROVIDE MEDICAL TREATMENT FOR
CONDITIONS NOT CAUSED BY MILITARY SERVICE. 

/4/  CF. FEDERAL POWER COMM'N V. TUSCARORA INDIAN NATION, 362 U.S.
99, 142 (1960) (BLACK, J., DISSENTING):  "GREAT NATIONS, LIKE GREAT
MEN, SHOULD KEEP THEIR WORD." 

PAUL N. HALVONIK ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS MARSHALL W. KRAUSE. 

RICHARD B. STONE ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, AND CHARLES GORDON. 
..END :





GAINESVILLE UTILITIES V. FLORIDA POWER CORP., 402 U.S. 515 


       GAINESVILLE UTILITIES DEPARTMENT ET AL. V. FLORIDA POWER

           CORP.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 464.  ARGUED FEBRUARY 24, 1971-- DECIDED MAY 24, 1971

           /0/ 


PURSUANT TO SEC. 202(B) OF THE FEDERAL POWER ACT, THE FEDERAL POWER
COMMISSION (FPC) IS EMPOWERED TO DIRECT ONE ELECTRIC UTILITY TO
INTERCONNECT ITS ELECTRIC SYSTEM WITH ANOTHER UTILITY AND IT "MAY
PRESCRIBE THE TERMS AND CONDITIONS OF THE ARRANGEMENT TO BE MADE . . .
INCLUDING THE APPORTIONMENT OF THE COST BETWEEN THEM AND THE
COMPENSATION OR REIMBURSEMENT REASONABLY DUE TO ANY OF THEM."  AFTER
HEARINGS AND STAFF STUDIES THE FPC FOUND THAT AN INTERCONNECTION
BETWEEN GAINESVILLE, A SMALL MUNICIPALLY OWNED UTILITY, AND RESPONDENT,
A MAJOR INVESTOR-OWNED ELECTRIC UTILITY, WOULD BE IN THE PUBLIC
INTEREST, WOULD NOT UNDULY BURDEN RESPONDENT, AND WOULD BENEFIT BOTH
PARTIES.  THE FPC ORDERED THE INTERCONNECTION, REQUIRING GAINESVILLE TO
PAY THE ENTIRE $3 MILLION COST THEREOF AND TO MAINTAIN CERTAIN
GENERATING CAPACITY.  IN THE LIGHT OF THESE CIRCUMSTANCES THE FPC
IMPOSED NO STANDBY CHARGE ON GAINESVILLE.  THE COURT OF APPEALS DENIED
ENFORCEMENT OF THE ORDER, AGREEING WITH RESPONDENT'S CLAIM THAT THE
OMISSION OF AN ANNUAL $150,000 PAYMENT TO IT BY PETITIONER FOR THE
BACKUP SERVICE PROVIDED BY THE INTERCONNECTION RESULTED IN A FAILURE TO
SATISFY THE STATUTORY AMNDATE OF "REIMBURSEMENT RESASONABLY DUE"
RESPONDENT BECAUSE RESPONDENT WOULD OBTAIN NO BENEFIT FROM THE
INTERCONNECTION.  SECTION 313(B) OF THE ACT PROVIDES THAT "FINDINGS OF
THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE,
SHALL BE CONCLUSIVE."  HELD:  SINCE THERE WAS SUBSTANTIAL EVIDENCE TO
SUPPORT THE FPC'S FINDINGS THAT BENEFITS WILL ACCRUE TO RESPONDENT FROM
THE INTERCONNECTION, THE COURT OF APPEALS ERRED IN NOT DEFERRING TO THE
FPC'S EXPERT JUDGMENT.  PP. 521-529. 

425 F.2D 1196, REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT BLACKMUN, J., WHO TOOK NO PART IN THE DECISION OF
THE CASES. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

UNDER THE FEDERAL POWER ACT, AN ORDER OF THE FEDERAL POWER COMMISSION
THAT DIRECTS ONE ELECTRIC UTILITY "TO ESTABLISH PHYSICAL CONNECTION OF
ITS TRANSMISSION FACILITIES WITH THE FACILITIES OF"  ANOTHER UTILITY
"MAY PRESCRIBE THE TERMS AND CONDITIONS OF THE ARRANGEMENT TO BE MADE .
. . INCLUDING THE APPORTIONMENT OF COST BETWEEN THEM AND THE
COMPENSATION OR REIMBURSEMENT REASONABLY DUE TO ANY OF THEM."  FEDERAL
POWER ACT SEC. 202(B), 49 STAT. 848, 16 U.S.C. 824AB).  /1/  THE
COMMISSION ORDER WHICH DIRECTED RESPONDENT FLORIDA POWER CORP. TO
INTERCONNECT ITS ELECTRIC SYSTEM WITH THAT OF PETITIONER GAINESVILLE
UTILITIES DEPARTMENT DID NOT CONTAIN A TERM OR CONDITION SOUGHT BY
RESPONDENT REQUIRING PETITIONER TO PAY AN ANNUAL STANDBY CHARGE OF
APPROXIMATELY $150,000 FOR THE EMERGENCY OR BACKUP SERVICE PROVIDED BY
THE INTERCONNECTION, 40 F.P.C. 1227 (1968); 41 F.P.C. 4 (1969).  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD THAT, BECAUSE OF THE
OMISSION OF SUCH A TERM OR CONDITION, "THE TERMS OF THE INTERCONNECTION
DO NOT ADEQUATELY SATISFY THE STATUTORY REQUIREMENTS BECAUSE THEY DO
NOT PROVIDE FLORIDA POWER WITH THE 'REIMBURSEMENT REASONABLY DUE'  IT.
. . . THUS WE DENY ENFORCEMENT OF THIS ORDER INSOFAR AS NO PROVISION
FOR THE REASONABLE COMPENSATION OF FLORIDA POWER IS MADE."  425 F.2D
1196, 1203 (1970) (FOOTNOTE OMITTED).  WE GRANTED THE PETITION FOR
CERTIORARI OF GAINESVILLE UTILITIES DEPARTMENT IN NO. 464, AND OF THE
FEDERAL POWER COMMISSION IN NO. 469, 400 U.S. 877 (1970).  WE REVERSE
THE JUDGMENT OF THE COURT OF APPEALS INSOFAR AS IT DENIED ENFORCEMENT
OF THE COMMISSION'S ORDER AND REMAND FOR THE ENTRY OF A NEW JUDGMENT
ENFORCING THE COMMISSION'S ORDER IN ITS ENTIRETY. 

        I 

THE DEMAND UPON AN ELECTRIC UTILITY FOR ELECTRIC POWER FLUCTUATES
SIGNIFICANTLY FROM HOUR TO HOUR, DAY TO DAY, AND SEASON TO SEASON.  FOR
THIS REASON, GENERATING FACILITIES CANNOT BE MAINTAINED ON THE BASIS OF
A CONSTANT DEMAND.  RATHER, THE UTILITY'S GENERATING CAPABILITY MUST BE
GEARED TO THE UTILITY'S PEAK LOAD OF DEMAND, AND ALSO TAKE INTO ACCOUNT
THE FACT THAT GENERATING EQUIPMENT MUST OCCASIONALLY BE OUT OF SERVICE
FOR OVERHAUL, OR BECAUSE OF BREAKDOWNS.  IN CONSEQUENCE, THE UTILITY
BUILDS CERTAIN "RESERVES" OF GENERATING CAPACITY IN EXCESS OF PEAK LOAD
REQUIREMENTS INTO THE SYSTEM.  /2/  THE PRACTICE OF A UTILITY THAT
RELIES COMPLETELY ON ITS OWN GENERATING RESOURCES (AN "ISOLATED" SYSTEM
IN INDUSTRY JARGON) IS TO MAINTAIN EQUIPMENT CAPABLE OF PRODUCING ITS
PEAK LOAD REQUIRMENTS PLUS EQUIPMENT THAT PRODUCES A "RESERVE" CAPACITY
EQUAL TO THE CAPACITY OF ITS LARGEST GENERATING UNIT. 

THE MAJOR IMPORTANCE OF AN INTERCONNECTION IS THAT IT REDUCES THE
NEED FOR THE "ISOLATED" UTILITY TO BUILD AND MAINTAIN "RESERVE"
GENERATING CAPACITY.  /3/  AN INTERCONNECTION IS SIMPLY A TRANSMISSION
LINE CONNECTING TWO UTILITIES.  ELECTRIC POWER MAY MOVE FREELY THROUGH
THE LINE UP TO THE LINE'S CAPACITY.  ORDINARILY, HOWEVER, THE ENERGY
GENERATED BY EACH SYSTEM IS SUFFICIENT TO SUPPLY THE REQUIREMENTS OF
THE SYSTEM'S CUSTOMERS AND NO SUBSTANTIAL AMOUNT OF POWER FLOWS THROUGH
THE INTERCONNECTION.  IT IS ONLY AT THE TIMES WHEN ONE OF THE CONNECTED
UTILITIES IS UNABLE FOR SOME REASON TO PRODUCE SUFFICIENT POWER TO MEET
ITS CUSTOMERS' NEEDS THAT THE DEFICIENCY MAY BE SUPPLIED BY POWER THAT
AUTOMATICALLY FLOWS THROUGH THE INTERCONNECTION FROM THE OTHER
UTILITY.  TO THE EXTENT THAT THE UTILITY MAY RELY UPON THE
INTERCONNECTION TO SUPPLY THIS DEFICIENCY, THE UTILITY IS FREED OF THE
NECESSITY OF CONSTRUCTING AND MAINTAINING ITS OWN EQUIPMENT FOR THE
PURPOSE. 

THE GAINESVILLE UTILITIES DEPARTMENT IS A MUNICIPALLY OWNED AND
OPERATED ELECTRIC UTILITY SERVING APPROXIMATELY 17,000 CUSTOMERS IN A
22-SQUARE-MILE AREA COVERING THE CITY OF GAINESVILLE AND ADJACENT
PORTIONS OF ALACHUA COUNTY, FLORIDA.  IN 1965, GAINESVILLE'S "ISOLATED"
SYSTEM HAD A TOTAL GENERATING CAPABILITY OF 108.4 MEGAWATTS (MW) WHILE
ITS PEAK LOAD WAS 51.1 MW.  GAINESVILLE'S GENERATING CAPACITY IN 1965
CONSISTED OF FIVE STEAM ELECTRIC GENERATING UNITS RANGING FROM FIVE TO
50 MW.  THUS GAINESVILLE'S GENERATING CAPACITY OF 108.4 MW GAVE IT A
RESERVE CAPACITY OF 57.3 MW OVER ITS ANNUAL PEAK LOAD OF 51.1 MW-- A
RESERVE ADEQUATE TO COVER THE SHUTDOWN OF THE SYSTEM'S LARGEST
GENERATING UNIT OF 50 MW.  GAINESVILLE'S PEAK LOAD WAS PROJECTED TO BE
DOUBLED TO 102 MW BY 1970.  ITS 1970 CAPACITY, HOWEVER, WAS PROJECTED
TO INCREASE TO ONLY 138.4 MW THROUGH THE ADDITION IN 1968 OF TWO 15-MW
GAS-TURBINE GENERATORS.  THUS AN INTERCONNECTION WAS NECESSARY IF
GAINESVILLE WAS TO AVOID HAVING TO MAKE A STILL GREATER INVESTMENT IN
GENERATING EQUIPMENT. 

FLORIDA POWER CORPORATION OPERATES A MAJOR ELECTRIC GENERATION,
TRANSMISSION, AND DISTRIBUTION SYSTEM SERVING 370,000 RETAIL CUSTOMERS
IN A 20,600-SQUARE-MILE SYSTEM SERVING 32 COUNTIES IN CENTRAL AND
NORTHWEST FLORIDA, INCLUDING ALACHUA COUNTY.  IT ALSO SUPPLIES POWER AT
WHOLESALE TO 12 MUNICIPAL DISTRIBUTION SYSTEMS AND 9 REA COOPERATIVES. 
IN 1966, FLORIDA POWER HAD AN AGGREGATE GENERATING CAPABILITY OF 1595
MW AND EXPERIENCED A PEAK LOAD OF 1232 MW.  AT THE TIME OF THE HEARING
BEFORE THE COMMISSION, FLORIDA POWER WAS BUILDING A 525-MW GENERATING
UNIT TO BEGIN SERVICE IN DECEMBER 1969, AND ANTICIPATED A 1970
GENERATING CAPABILITY OF 2114 MW AND A 1970 PEAK LOAD OF 1826 MW.  THUS
THE ANTICIPATED EXCESS OF CAPACITY OVER PEAK LOAD, 288 MW, IS LESS THAN
THE SIZE OF ITS LARGEST GENERATING UNIT, 525 MW.  HOWEVER, THE
DEFICIENCY IS PROVIDED FOR BY INTERCONNECTIONS WHICH FLORIDA POWER HAS
WITH FOUR OTHER FLORIDA UTILITIES.  SEE N. 3, SUPRA.  ALL FIVE OF THESE
UTILTIES CONSTITUTE THE FLORIDA OPERATING COMMITTEE, WHICH, THOUGH
INFORMAL IN NATURE, SERVES AS A MEDIUM THROUGH WHICH THE TECHNICAL
OPERATIONS OF ITS MEMBERS ARE COORDINATED.  AS A RESULT OF THE SHARING
OF RESERVES MADE POSSIBLE BY THE INTERCONNECTION OF THE COMMITTEE'S
MEMBERS, EACH UTILITY IS ABLE TO REDUCE THE RESERVE GENERATING CAPACITY
THAT WOULD BE REQUIRED IF IT WERE ELECTRICALLY ISOLATED.  SPECIFICALLY,
EACH OF THE FLORIDA OPERATING COMMITTEE MEMBERS MAINTAINS GENERATING
CAPACITY EQUAL TO 115% OF ITS ANNUAL PEAK LOAD. 

FOR SEVERAL YEARS PRIOR TO 1965, GAINESVILLE SOUGHT TO NEGOTIATE AN
"INTERCONNECTION" WITH FLORIDA POWER AND WITH ANOTHER MEMBER OF THE
FLORIDA OPERATING COMMITTEE, FLORIDA POWER & LIGHT.  WHEN THOSE EFFORTS
FAILED, GAINESVILLE, IN 1965, FILED AN APPLICATION WITH THE COMMISSION
SEEKING AN ORDER UNDER SEC. 202(B) DIRECTING FLORIDA POWER TO
INTERCONNECT WITH GAINESVILLE.  /4/

    II 

UTILITY TO INTERCONNECT WITH ANOTHER, AND TO "PRESCRIBE THE TERMS AND
CONDITIONS OF THE ARRANGEMENT . . . ," IF THE COMMISSION "FINDS SUCH
ACTION NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST," AND "IF THE
COMMISSION FINDS THAT NO UNDUE BURDEN WILL BE PLACED UPON SUCH PUBLIC
UTILITY THEREBY."  THE PROVISO TO THE SECTION MAKES EXPLICIT THAT THE
COMMISSION HAS NO AUTHORITY IN ORDERING AN INTERCONNECTION "TO COMPEL
THE ENLARGEMENT OF GENERATING FACILITIES . . . (OR) TO COMPEL SUCH
PUBLIC UTILITY TO SELL OR EXCHANGE ENERGY WHEN TO DO SO WOULD IMPAIR
ITS ABILITY TO RENDER ADEQUATE SERVICE TO ITS CUSTOMERS."  16 U.S.C.
824AB). 

FOLLOWING EXTENSIVE HEARINGS, AN EXAMINER MADE FINDINGS THAT THE
PROPOSED INTERCONNECTION WOULD BE IN THE PUBLIC INTEREST AND THAT IT
WOULD NOT PLACE AN UNDUE BURDEN ON FLORIDA POWER.  THE COMMISSION
AFFIRMED THE FINDINGS AND FURTHER FOUND THAT THE INTERCONNECTION WOULD
NEITHER COMPEL FLORIDA POWER TO ENLARGE ITS GENERATING FACILITIES NOR
IMPAIR ITS ABILITY TO SERVE ITS CUSTOMERS.  THE COMMISSION ORDERED THE
INTERCONNECTION BUT ON CONDITIONS (1) THAT GAINESVILLE PAY THE ENTIRE
$3 MILLION COST OF THE INTERCONNECTION, AND (2) THAT GAINESVILLE
MAINTAIN GENERATING CAPACITY RESOURCES AT LEAST EQUAL TO 115% OF ITS
PEAK LOAD-- THE REQUIREMENT IMPOSED BY THE FLORIDA OPERATING COMMITTEE
ON ALL ITS MEMBERS.  THE ORDER ALSO FIXED THE RATES OF COMPENSATION TO
BE PAID FOR ACTUAL ENERGY TRANSFERS ACROSS THE INTERCONNECTION. 

RESPONDENT, FLORIDA POWER, DOES NOT CHALLENGE THE COMMISSION'S ORDER
EXCEPT IN ITS OMISSION OF A TERM OR CONDITION THAT GAINESVILLE PAY
APPROXIMATELY $150,000 ANNUALLY AS "COMPENSATION OR REIMBURSEMENT
REASONABLY DUE" RESPONDENT FOR THE BACKUP SERVICE EFFECTED BY THE
INTERCONNECTION.  RESPONDENT CONTENDED THAT THIS CHARGE, COMPUTED ON
THE BASIS OF GAINESVILLE'S LARGEST GENERATOR, WAS JUSTIFIED BECAUSE
ONLY GAINESVILLE COULD GAIN FROM THE INTERCONNECTION SINCE THE RESERVE
MADE AVAILABLE TO RESPONDENT FROM GAINESVILLE WAS TOO SMALL TO BE OF
ANY REALISTIC VALUE TO RESPONDENT'S MASSIVE POWER SYSTEM.  THE
COMMISSION REJECTED THE CONTENTION.  IT NOTED THAT RESPONDENT HAD NOT
INCLUDED A COMPARABLE CHARGE IN ANY OF THE CONTRACTS FOR
INTERCONNECTION VOLUNTARILY NEGOTIATED WITH MEMBERS OF THE FLORIDA
OPERATING COMMITTEE.  THE COMMISSION ALSO EMPHASIZED THAT "THE
APPORTIONMENT OF COST" FACTOR HAD BEEN SATISFIED BY REQUIRING
GAINESVILLE TO BEAR THE FULL COST" OF MAKING THE INTERCONNECTION. 
PRIMARILY, HOWEVER, THE COMMISSION RESTED ITS REJECTION UPON TWO
GROUNDS.  FIRST, THE COMMISSION STATED ITS VIEW THAT, IN APPLYING THE
STATUTORY PROVISION, THE APPROPRIATE ANALYSIS SHOULD FOCUS NOT UPON THE
RESPECTIVE GAINS TO BE REALIZED BY THE PARTIES FROM THE INTERCONNECTION
BUT UPON THE SHARING OF RESPONSIBILITIES BY THE INTERCONNECTED
OPERATIONS: 

"(THAT SHARING MUST BE BASED UPON, AND FOLLOW THE PROPORTIONATE
BURDENS EACH SYSTEM PLACES UPON THE INTERCONNECTED SYSTEM NETWORKS, NOT
THE BENEFITS EACH EXPECTS TO RECEIVE.  BENEFITS RECEIVED IN ANY GIVEN
SITUATION MAY APPROXIMATE THESE RESPONSIBILITIES OR THEY MAY NOT.  IN
THE COURSE OF NEGOTIATION OF VOLUNTARY POOLING ARRANGEMENTS, BENEFITS
RECEIVED MAY, ON OCCASION, SERVE TO OFFSET BURDENS IMPOSED IN
DETERMINING THE APPROPRIATE CHARGE FOR PARTICULAR SERVICES RENDERED OR
FACILITIES SUPPLIED.  BUT WHERE, AS HERE, THE COST OF PROVIDING SUCH
SERVICES AND FACILITIES AND THE APPROPRIATE CHARGES THEREFOR HAVE
EQUITABLY BEEN DETERMINED AFTER A CAREFUL ANALYSIS AND APPORTIONMENT OF
THE BURDENS AND RESPONSIBILITIES OF EACH PARTY, THERE IS NO BASIS FOR
ANY FURTHER CONSIDERATION OF RELATIVE BENEFITS.  . . ."  40 F.P.C.,AT
1237.  SECOND, THE COMMISSION FOUND THAT EVEN IF THE INTERCONNECTION
WERE EVALUATED ON THE BASIS OF RELATIVE BENEFITS, "THIS RECORD SHOWS
THAT THE PROPOSED INTERTIE WILL AFFORD BOTH PARTIES OPPORTUNITIES TO
TAKE ADVANTAGE OF SUBSTANTIAL AND IMPORTANT BENEFITS:  ELECTRICAL
OPERATING BENEFITS, AND CORPORATE FINANCIAL SAVINGS."  ID., AT 1238. 
IN ITS ORIGINAL OPINION AND IN ITS OPINION DENYING REHEARING, THE
COMMISSION SPECIFIED THE BENEFITS THAT IT FOUND FLORIDA POWER WOULD
GAIN FROM THE INTERCONNECTION, AS SET OUT IN THE MARGIN.  /5/  ON THE
BASIS OF THESE FINDINGS, THE COMMISSION CONCLUDED THAT NO STANDBY
CHARGE SHOULD BE IMPOSED ON EITHER PARTY TO THE INTERCONNECTION.  THUS,
UNDER THE TERMS OF THE COMMISSION'S FINAL ORDER, EACH PARTY PAYS ONLY
FOR THE POWER ACTUALLY RECEIVED FROM THE OTHER, AND EACH PARTY IS
OBLIGATED TO DELIVER POWER ONLY ON AN "AS AVAILABLE" BASIS.  40
F.P.C.,AT 1236 N. 4, 1245. 

THE COURT OF APPEALS' DENIAL OF ENFORCEMENT OF THE COMMISSION'S
ORDER INSOFAR AS NO PROVISION WAS MADE "FOR THE REASONABLE COMPENSATION
OF FLORIDA POWER" RESTED ON THE COURT'S CONCLUSION THAT THE
COMMISSION'S "PROPORTIONATE BURDEN" ANALYSIS WAS "LARGELY ILLUSORY:" 

"THE COMMISSION'S POLICY OF PROPORTIONATE UTILITY

  RESPONSIBILITY REALLY WORKS ONLY ONE WAY.  THE SMALL SYSTEM

RECEIVES HIGH BENEFITS AND, BECAUSE OF ITS SIZE, NO REAL

OBLIGATIONS.  THE LARGE SYSTEM, HOWEVER, RECEIVES NO BENEFIT BUT

  DOES INCUR REAL, SUBSTANTIAL RESPONSIBILITIES.  SUCH IMAGINARY

  EQUITY IS NOT REASONABLE COMPENSATION."  425 F.2D, AT 1203. 

THE VALIDITY OF THIS CONCLUSION, HOWEVER, DEPENDS UPON WHETHER THE
COURT CORRECTLY READ THE RECORD AS SHOWING THAT FLORIDA POWER "RECEIVES
NO BENEFIT" AND THAT GAINESVILLE INCURS "NO REAL OBLIGATIONS."  /6/
THE COMMISSION'S FINDINGS ARE SQUARELY CONTRARY. 

ALTHOUGH THE COMMISSION DID ARGUE THAT THE BENEFITS TO BE DERIVED
FROM THE INTERCONNECTION BY EACH PARTY WERE IRRELEVANT TO THE PROPER
DECISION OF THE CASE, NONETHELESS, IN VIEW OF RESPONDENT'S STRENUOUS
PROTEST, THE COMMISSION WENT ON TO BRING ITS EXPERTISE AND JUDGMENT TO
BEAR UPON THE BENEFITS AND BURDENS AND MADE FINDINGS IDENTIFYING
SEVERAL SPECIFIC BENEFITS THAT WOULD ACCRUE TO FLORIDA POWER FROM THE
INTERCONNECTION.  SEE N. 5, SUPRA.  MERELY BECAUSE THE COMMISSION
ARGUED THAT ON ITS VIEW OF THE LEGAL QUESTION INVOLVED, FINDINGS OF
BENEFITS WERE UNNECESSARY TO ITS DECISION DOES NOT RENDER THEM ANY THE
LESS FINDINGS ON THE QUESTION OF BENEFITS.  A REVIEWING COURT SHOULD
HARDLY COMPLAIN BECAUSE AN AGENCY PROVIDES MORE ANALYSIS THAN IT FEELS
IS ABSOLUTELY NECESSARY.  /7/

THAT "(THE FINDING OF THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY
SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE."  SEE UNIVERSAL CAMERA CORP.
V. NLRB, 340 U.S. 474 (1951).  AMONG THE SPECIFIC BENEFITS THE
COMMISSION FOUND WOULD ACCRUE TO FLORIDA POWER WERE INCREASED
RELIABILITY OF FLORIDA POWER'S SERVICE TO CUSTOMERS IN THE GAINESVILLE
AREA, THE AVAILABILITY OF 60 TO 100 MW OF RESERVE CAPACITY DURING
CERTAIN PERIODS OF THE YEAR, AND SAVINGS FROM COORDINATED PLANNING TO
ACHIEVE USE AT ALL TIMES OF THE MOST EFFICIENT GENERATING EQUIPMENT IN
BOTH SYSTEMS.  THE COMMISSION'S FINDINGS WERE AIDED BY SPECIFIC
STUDIES, MADE BY THE COMMISSION'S STAFF, AND PLACED IN THE RECORD. 
INSOFAR AS THE COURT OF APPEALS' OPINION IMPLIES THAT THERE WAS NOT
SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING OF SOME BENEFITS, IT IS
CLEARLY WRONG.  AND INSOFAR AS THE COURT'S OPINION IMPLIES THAT THE
RESPONSIBILITIES ASSUMED BY GAINESVILLE IN COMBINATION WITH THE
BENEFITS FOUND TO ACCRUE TO FLORIDA POWER WERE INSUFFICIENT TO
CONSTITUTE "COMPENSATION . . . REASONABLY DUE," THE COURT OF APPEALS
OVERSTEPPED THE ROLE OF THE JUDICIARY.  CONGRESS ORDAINED THAT THAT
DETERMINATION SHOULD BE MADE, IN THE FIRST INSTANCE, BY THE COMMISSION,
AND ON THE RECORD MADE IN THIS CASE, THE COURT OF APPEALS ERRED IN NOT
DEFERRING TO THE COMMISSION'S EXPERT JUDGMENT. 

FLORIDA POWER'S EMPHASIS ON GAINESVILLE'S SMALL SIZE OCCURS ONLY
WHEN DISCUSSING GAINESVILLE'S ABILITY TO PROVIDE FLORIDA POWER WITH
ENERGY.  BUT GAINESVILLE'S SMALL SIZE HAS RELEVANCE IN TERMS OF THE
AMOUNT OF POWER IT MAY, EVEN IN EMERGENCIES, REQUIRE FROM FLORIDA
POWER.  WHAT FLORIDA POWER CHOOSES TO EMPHASIZE IS THAT THE
AVAILABILITY OF A CERTAIN AMOUNT OF POWER FLOWING FROM IT TO
GAINESVILLE IS RELATIVELY MORE VALUABLE TO GAINESVILLE'S SMALL SYSTEM
THAN THE AVAILABILITY OF THE SAME AMOUNT OF POWER FLOWING FROM
GAINESVILLE TO FLORIDA POWER.  IT IS CERTAINLY TRUE THAT THE SAME
SERVICE OR COMMODITY MAY BE MORE VALUABLE TO SOME CUSTOMERS THAN TO
OTHERS, IN TERMS OF THE PRICE THEY ARE WILLING TO PAY FOR IT.  AN
AIRPLANE SEAT MAY BRING GREATER PROFIT TO A PASSENGER FLYING TO
CALIFORNIA TO CLOSE A MILLION-DOLLAR BUSINESS DEAL THAN TO ONE FLYING
WEST FOR A VACATION; AS A CONSEQUENCE, THE FORMER MIGHT BE WILLING TO
PAY MORE FOR HIS SEAT THAN THE LATTER.  BUT FOCUS ON THE WILLINGNESS OR
ABILITY OF THE PURCHASER TO PAY FOR A SERVICE IS THE CONCERN OF THE
MONOPOLIST, NOT OF A GOVERNMENTAL AGENCY CHARGED BOTH WITH ASSURING THE
INDUSTRY A FAIR RETURN AND WITH ASSURING THE PUBLIC RELIABLE AND
EFFICIENT SERVICE, AT A REASONABLE PRICE. 

OUR GUIDEPOST HERE IS THE ACT'S EXPLICIT COMMITMENT OF THE JUDGMENT
AS TO WHAT COMPENSATION IS REASONABLY DUE, IN THIS HIGHLY TECHNICAL
FIELD, TO THE COMMISSION.  CF. PERMIAN BASIN AREA RATE CASES, 390 U.S.
747, 767 (1968).  IN THE EXERCISE OF THIS JUDGMENT, THE COMMISSION'S
ORDER PLACED ON GAINESVILLE THE ENTIRE $3 MILLION COST OF CONSTRUCTING
THE INTERCONNECTION.  THUS THE BENEFITS THAT THE COMMISSION FOUND THAT
FLORIDA POWER WILL RECEIVE FROM THE INTERCONNECTION WILL COME WITHOUT
ANY CAPITAL INVESTMENT ON ITS PART.  IN ADDITION, THE COMMISSION
REQUIRED GAINESVILLE TO MAINTAIN GENERATING CAPACITY EQUAL TO AT LEAST
115% OF ITS ANNUAL PEAK LOAD AND TO MAINTAIN OPERATING RESERVES IN
ACCORDANCE WITH THE PROCEDURES ESTABLISHED BY THE FLORIDA OPERATING
COMMITTEE.  IN LIGHT OF THESE CIRCUMSTANCES, THE COMMISSION CONCLUDED
ON THE BASIS OF ITS PROPORTIONATE-BURDEN ANALYSIS THAT GAINESVILLE
SHOULD NOT PAY A STANDBY CHARGE FOR THE AVAILABILITY OF EMERGENCY
SERVICE, WHICH IS PROVIDED ONLY ON AN "AS AVAILABLE"  BASIS.  IT SIMPLY
REQUIRED GAINESVILLE TO PAY FOR ENERGY ACTUALLY RECEIVED.  ON THIS
RECORD, WE CANNOT SAY THAT THE COMMISSION HAS FAILED TO DISCHARGE
EITHER ITS RESPONSIBILITY TO ASSURE FLORIDA POWER OF "REASONABLE
COMPENSATION" OR ITS RESPONSIBILITY TO THE PUBLIC TO ASSURE RELIABLE
EFFICIENT ELECTRIC SERVICE. 

SINCE WE CONCLUDE THAT SUBSTANTIAL EVIDENCE SUPPORTS THE FINDINGS OF
THE COMMISSION THAT BENEFITS WILL ACCRUE TO FLORIDA POWER FROM THE
INTERCONNECTION, WE HAVE NO OCCASION TO DECIDE WHETHER THE COMMISSION
IN ORDERING THE INTERCONNECTION OF TWO ELECTRIC POWER COMPANIES, MAY
PROPERLY CONDITION THE INTERCONNECTION, WHEN ONE PARTY RECEIVES NO
BENEFITS, UPON COMPENSATION TERMS BASED ON THE RELATIVE BURDENS THAT
EACH PLACES ON THE INTERCONNECTED NETWORK.  DECISION OF THAT QUESTION
MUST AWAIT A CASE WHICH PRESENTS IT.

REVERSED AND REMANDED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE DECISION OF THESE CASES. 

/0/  TOGETHER WITH NO. 469, FEDERAL POWER COMMISSION V. FLORIDA
POWER CORP., ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  SECTION 202(B) OF THE FEDERAL POWER ACT, 49 STAT. 848, 16
U.S.C. 824AB), PROVIDES: 

"(B) WHENEVER THE COMMISSION, UPON APPLICATION OF ANY STATE
COMMISSION OR OF ANY PERSON ENGAGED IN THE TRANSMISSION OR SALE OF
ELECTRIC ENERGY, AND AFTER NOTICE TO EACH STATE COMMISSION AND PUBLIC
UTILITY AFFECTED AND AFTER OPPORTUNITY FOR HEARING, FINDS SUCH ACTION
NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST IT MAY BY ORDER DIRECT
A PUBLIC UTILITY (IF THE COMMISSION FINDS THAT NO UNDUE BURDEN WILL BE
PLACED UPON SUCH PUBLIC UTILITY THEREBY) TO ESTABLISH PHYSICAL
CONNECTION OF ITS TRANSMISSION FACILITIES WITH THE FACILITIES OF ONE OR
MORE PERSONS ENGAGED IN THE TRANSMISSION OR SALE OF ELECTRIC ENERGY, TO
SELL ENERGY TO OR EXCHANGE WITH SUCH PERSONS:  PROVIDED, THAT THE
COMMISSION SHALL HAVE NO AUTHORITY TO COMPEL THE ENLARGEMENT OF
GENERATING FACILITIES FOR SUCH PURPOSES, NOR TO COMPEL SUCH PUBLIC
UTILITY TO SELL OR EXCHANGE ENERGY WHEN TO DO SO WOULD IMPAIR ITS
ABILITY TO RENDER ADEQUATE SERVICE TO ITS CUSTOMERS.  THE COMMISSION
MAY PRESCRIBE THE TERMS AND CONDITIONS OF THE ARRANGEMENT TO BE MADE
BETWEEN THE PERSONS AFFECTED BY ANY SUCH ORDER, INCLUDING THE
APPORTIONMENT OF COST BETWEEN THEM AND THE COMPENSATION OR
REIMBURSEMENT REASONABLY DUE TO ANY OF THEM." 

/2/  THE INDUSTRY DISTINGUISHES BETWEEN VARIOUS TYPES OF "RESERVE"
REQUIREMENTS.  SINCE TIME IS REQUIRED TO START UP EQUIPMENT THAT IS NOT
OPERATING, A CERTAIN AMOUNT OF EQUIPMENT MUST BE MAINTAINED IN SUCH A
STATE THAT IT CAN BEGIN GENERATING POWER IMMEDIATELY.  THE INDUSTRY
CALLS THESE INSTANTANEOUS OR "SPINNING" RESERVES, AND THEY MUST BE
AVAILABLE TO MEET LOAD VARIATIONS AND BREAKDOWNS OF EQUIPMENT AS THEY
OCCUR.  A UTILITY MUST ALWAYS MAINTAIN "SPINNING" RESERVES EQUAL TO THE
SIZE OF THE LARGEST GENERATOR CURRENTLY IN SERVICE PRODUCING POWER, IN
ORDER TO PROTECT AGAINST A BREAKDOWN OF THAT UNIT.  AS "SPINNING"
RESERVES ARE CALLED UPON A UTILITY MUST START UP MORE EQUIPMENT IN
ORDER TO MAINTAIN "SPINNING" RESERVES AT AN ADEQUATE LEVEL.  THESE
RESERVES ARE CALLED "QUICK-START" OR "READY" RESERVES AND MUST BE
AVAILABLE ON SHORT NOTICE-- USUALLY 10 MINUTES OR LESS.  BOTH SPINNING
AND QUICK-START RESERVES ARE COLLECTIVELY REFERRED TO AS "OPERATING"
RESERVES, IN CONTRAST TO "INSTALLED" RESERVES.  INSTALLED RESERVES
REFERS TO THE REAMINING GENERATING CAPACITY OF A UTILITY, THOSE
GENERATORS THAT ARE NOT READY TO BE OPERATED, OR IN OPERATION. 
ACCORDINGLY, THE EXPENSE ASSOCIATED WITH "RESERVE" REQUIREMENTS
INCLUDES BOTH CAPITAL EXPENSES-- BUILDING THE NECESSARY "INSTALLED"
RESERVE GENERATING CAPACITY-- AND OPERATING EXPENSE-- RUNNING THE
NECESSARY "SPINNING" RESERVES AND MAINTAINING THE READINESS OF "QUICK
START" RESERVES.  IN GENERAL, THIS OPINION WILL NOT DIFFERENTIATE
BETWEEN THE DIFFERENT RESERVE REQUIREMENTS. 

/3/  THE REASON THAT INTERCONNECTIONS LOWER RESERVE REQUIREMENTS IS
WELL ILLUSTRATED BY A HYPOTHETICAL DISCUSSED IN THE COMMISSION'S BRIEF,
AT 15-16. 

"ASSUME THAT FOUR ELECTRIC SYSTEMS OPERATE IN ISOLATION AND THAT
EACH HAS AN ANNUAL PEAK LOAD OF 500 MW SERVED BY SEVERAL GENERATING
UNITS THE LARGEST OF WHICH IS 200 MW.  AT A MINIMUM, EACH SYSTEM WOULD
HAVE TO PROVIDE 700 MW OF INSTALLED GENERATING CAPACITY (500 MW TO
COVER THE ANNUAL PEAK LOAD PLUS 200 MW OF INSTALLED RESERVES EQUAL TO
THE LARGEST UNIT).  IF WE ASSUME FURTHER THAT EACH SYSTEM OPERATES ITS
200 MW UNIT NEAR CAPACITY THROUGHOUT THE YEAR, SPINNING RESERVES EQUAL
TO THE OUTPUT OF THAT UNIT WOULD CONSTANTLY BE REQUIRED.  IF THE FOUR
SYSTEMS ARE TO BE INTERCONNECTED PURSUANT TO THE FLORIDA OPERATING
COMMITTEE FORMULA, TOTAL GENERATING CAPACITY NEED NOT EXCEED 2300 MW
(TOTAL ANNUAL PEAK LOAD-- IF ALL PEAKS OCCUR DURING THE SAME PERIOD--
PLUS OPERATING RESERVES OF 300 MW, I.E., 1 1/2 TIMES THE LARGEST
GENERATING UNIT).  THIS 2300 MW CAPACITY REQUIREMENT WOULD BE MET BY
REQUIRING EACH SYSTEM TO MAINTAIN GENERATING CAPACITY EQUAL TO 115
PERCENT OF ITS ANNUAL PEAK LOAD.  EACH SYSTEM WOULD THUS HAVE TO
MAINTAIN ONLY 575 MW OF GENERATING CAPACITY-- 125 MW LESS THAN WOULD BE
REQUIRED IF OPERATING IN ISOLATION.  THE INTERCONNECTED SYSTEM AS A
WHOLE WOULD REQUIRE THE CONSTANT MAINTENANCE OF 200 MW OF SPINNING
RESERVES AND 100 MW OF QUICK-START RESERVES; EACH SYSTEM'S PRO RATE
SHARE OF OPERATING RESERVES WOULD AMOUNT TO ONLY 75 MW.  THUS,
INTERCONNECTION OF THE FOUR SYSTEMS WOULD RESULT IN SUBSTANTIAL CAPITAL
SAVINGS BY REDUCING INSTALLED GENERATING CAPACITY REQUIREMENTS AND
SUBSTANTIAL OPERATING SAVINGS BY REDUCING OPERATING RESERVE
REQUIREMENTS."  (FOOTNOTE OMITTED.) 

/4/  AT THE SAME TIME, GAINESVILLE ALSO FILED A COMPLAINT WITH THE
COMMISSION CHARGING FLORIDA POWER WITH UNLAWFUL DISCRIMINATION UNDER
SEC. 205 AND 206 OF THE FEDERAL POWER ACT, 16 U.S.C. 824D, 824E, FOR
FAILURE TO AGREE TO AN INTERCONNECTION.  THE COMMISSION DISMISSED THIS
COMPLAINT AS MOOT WHEN THE INTERCONNECTION WAS ORDERED. 

/5/  "FOR THE COMPANY, THE INTERCONNECTION WILL ADD AN ADDITIONAL
ENERGY SOURCE TO ITS NETWORK IN A GEOGRAPHIC AREA WHERE THE COMPANY HAS
A SUBSTANTIAL LOAD (CUSTOMER DEMANDS), BUT DOES NOT HAVE GENERATING
PLANTS OF ITS OWN.  BECAUSE OF THAT, THE EXPECTED BENEFIT TO FLORIDA
POWER MAY BE VERY SUBSTANTIAL SINCE THE (GAINESVILLE) GOVERNORS HAVE A
FASTER RATE OF RESPONSE SETTING THAN FLORIDA POWER'S.  ALSO OF GREAT
IMPORTANCE TO FLORIDA POWER IS THE IMPROVED SYSTEM RELIABILITY WHICH
THE COMPANY WILL GAIN THROUGH THE PROPOSED INTERTIE.  THAT IS SHOWN IN
STUDIES SUBMITTED BY STAFF FROM ENGINEERING ANALYSES OF LOSS OF LOAD
PROBABILITIES.  THEY ESTABLISH THAT THE INTERCONNECTION WILL HAVE THE
EFFECT OF IMPROVING THE RELIABILITY OF FLORIDA POWER'S SYSTEM."  40
F.P.C.,AT 1238. 

"(THROUGHOUT ITS APPLICATION (FOR REHEARING), THE CORPORATION
EMPHASIZES THE CONTENTION THAT GAINESVILLE WILL NOT BE ABLE TO RENDER
ANY SERVICE OF SIGNIFICANT VALUE TO FLORIDA POWER.  UPON CONSIDERATION
OF THIS ARGUMENT WE FIND THAT FLORIDA POWER HAS GREATLY UNDERESTIMATED
GAINESVILLE'S CAPACITY TO BE OF SERVICE TO THE CORPORATION.  BECAUSE OF
ITS ELECTRICAL ISOLATION, GAINESVILLE HAS MAINTAINED A VERY LARGE
RESERVE CAPACITY IN RELATIONSHIP TO ITS PEAK LOAD.  IN 1965 ITS PEAK
LOAD WAS 51.1 MW, AND ITS RESERVE CAPACITY WAS 57.3 MW OR 112.1 PERCENT
OF PEAK DEMAND.  ALTHOUGH THE PURPOSE OF THIS INTERCONNECTION
PROCEEDING IS TO ENABLE GAINESVILLE TO LESSEN ITS NEED FOR SELF
RELIANCE, GAINESVILLE'S RESERVE CAPACITY WILL CONTINUE TO BE LARGE EVEN
AFTER INTERCONNECTION.  THE STAFF'S WITNESS HAS TESTIFIED THAT DURING
THE TEN YEAR PERIOD 1970-1979, GAINESVILLE'S AVERAGE MINIMUM RESERVES
AT THE TIME OF FLORIDA POWER'S ANNUAL PEAK HOUR DEMAND WILL BE 43
PERCENT.  ACCORDING TO STAFF'S COMPUTATIONS, GAINESVILLE WILL BE ABLE
TO DELIVER, IF THERE WILL BE SUFFICIENT INTERCONNECTION TRANSMISSION
FACILITIES, ANYWHERE FROM 60 MW TO 100 MW TO FLORIDA POWER DURING
CERTAIN PERIODS IN JANUARY, APRIL, AND SEPTEMBER 1970.  THIS PREDICTION
THAT GAINESVILLE WILL BE ABLE TO FURNISH CAPACITY OF THIS MAGNITUDE TO
FLORIDA POWER PLAINLY REFUTES FLORIDA POWER'S ASSERTION THAT THE
INTERCONNECTION WILL PROVE TO BE A ONE-WAY STREET WITH ALL THE BENEFITS
FLOWING FROM THE CORPORATION TO THE CITY.  THE COMMISSION IS SATISFIED
THAT THE INTERCONNECTION WILL PERMIT A RECIPROCAL EXCHANGE OF BENEFITS
TO THE MUTUAL ADVANTAGE OF BOTH SYSTEMS. 

 .          .          .          . 

"STAFF'S STUDIES OF GAINESVILLE'S FUTURE RESERVE CAPACITY ALSO SERVE
TO REFUTE FLORIDA POWER'S ALLEGATION THAT THERE IS 'NO SCINTILLA OF
EVIDENCE' TO SUPPORT THE COMMISSION'S FINDING THAT GAINESVILLE WILL
BECOME AN ADDITIONAL INTERCHANGE POWER SOURCE ON FLORIDA POWER'S
NETWORK AFTER THE INTERCONNECTION IS CONSUMMATED.  SIMILARLY, STAFF'S
STUDIES REBUT THE CORPORATION'S ASSERTIONS REGARDING THE INSIGNIFICANCE
OF GAINESVILLE'S ANTICIPATED CAPACITY CONTRIBUTIONS."  41
CONTRIBUTIONS."  41 F.P.C.,AT 5-6 (OPINION DENYING REHEARING). 

"FORIDA POWER ASSERTS THAT THE COMMISSION ERRED IN FINDING THAT THE
INTERCONNECTION WILL ADD AN ADDITIONAL ENERGY SOURCE IN AN AREA WHERE
FLORIDA (POWER) HAS NO GENERATING PLANT.  THE CORPORATION STATES THAT
IT NOW HAS THREE ENERGY SOURCES TO SUPPLY ITS LOAD IN THE GAINESVILLE
AREA AND THAT IT DOES NOT NEED A FOURTH.  FLORIDA POWER'S FORM 12 FOR
1065 SHOWS THAT THE CORPORATION'S SUWANEE PLANT IS THE CLOSEST
GENERATING SOURCE TO ITS GAINESVILLE LOAD PLANT IS MORE THAN 75
TRNASMISSION LINE MILES AWAY FROM THIS LOAD CENTER.  THE NEXT CLOSEST
PLANT IS THE INGLIS STATION WHICH IS MORE THAN 80 TRANSMISSION LINE
MILES AWAY.  FLORIDA POWER'S THREE ENERGY SOURCES ARE CONNECTED TO THE
GAINESVILLE LOAD AREA BY 69 KV TRANSMISSION LINES.  ACCORDING TO STAFF,
TWO OF THESE LINES SERVE OTHER LOADS AND COULD BE VULNERABLE TO
OUTAGES.  WE AGREE WITH STAFF'S POSITION THAT THE CONNECTION WITH
GAINESVILLE'S GENERATING RESOURCES WOULD UPGRADE SERVICE RELIABILITY TO
THE CORPORATION'S CUSTOMERS IN THE GAINESVILLE AREA."  41 F.P.C.,AT 7. 

/6/  RESPONDENT FLORIDA POWER CONCEDES THAT THE COMMISSION'S
PROPORTIONAT PROPORTIONATE-BURDEN ANALYSIS IS APPROPRIATE WHEN THE
INTERCONNECTED SYSTEMS ARE APPROXIMATELY EQUAL IN SIZE AND WHEN THE
INTERCONNECTION DOES BENEFIT BOTH PARTIES TO AN INTERCONNECTION.  BRIEF
FOR FLORIDA POWER CORP. 21. 

/7/  WE, THEREFORE, REJECT THE COURT OF APPEALS' CONCLUSION THAT,
BECAUSE THEY WERE STATED IN THE ALTERNATIVE, THESE WERE "NOT
FACTFINDINGS PROTECTED BY THE UMBRELLA OF THE SUBSTANTIAL EVIDENCE
TEST."  425 F.2D,AT 1203 N. 20.  THIS IS NOT A CASE WHERE THE
COMMISSION DID NOT FOLLOW A PROCEDURE THAT IT MIGHT HAVE FOLLOWED, SEE
SEC V. CHENERY CORP., 318 U.S. 80 (1943), OR FAILED TO MAKE FINDINGS OR
EVALUATE CONSIDERATIONS RELEVANT TO ITS DETERMINATION, SEE SCHAFFER
TRANSPORTATION CO. V. UNITED STATES, 355 U.S. 83 (1957).     GEORGE
SPIEGEL ARGUED THE CAUSE FOR PETITIONERS IN NO. 464.  WITH HIM ON THE
BRIEFS WAS MELVIN RICHTER.  GORDON GOOCH ARGUED THE CAUSE FOR
PETITIONER IN NO. 469.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, SAMUEL HUNTINGTON, PETER H. SCHIFF, AND LEONARD D. EESLEY. 

RICHARD W. EMORY ARGUED THE CAUSE FOR RESPONDENT IN BOTH CASES. 
WITH HIM ON THE BRIEF WERE ROBERT A. SHELTON AND S. A. BRANDIMORE. 

NORTHCUTT ELY FILED A BRIEF FOR THE AMERICAN PUBLIC POWER
ASSOCAITION AS AMICUS CURIAE URGING REVERSAL. 

THOMAS M. DEBEVOISE FILED A BRIEF FOR THE AMERICAN ELECTRIC POWER
SERVICE CORP. ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :


















UNITED STATES V. RYAN, 402 U.S. 530 


       UNITED STATES V. RYAN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 758.  ARGUED APRIL 26, 1971-- DECIDED MAY 24, 1971 


DISTRICT COURT'S ORDER DENYING RESPONDENT'S MOTION TO QUASH A GRAND
JURY SUBPOENA DUCES TECUM REQUIRING THE PRODUCTION OF RECORDS UNDER HIS
CONTROL IN KENYA WAS NOT FINAL AND THEREFORE NOT APPEALABLE, COBBLEDICK
V. UNITED STATES, 309 U.S. 323; NOR WAS IT RENDERED AN APPEALABLE
TEMPORARY INJUNCTION BY INCLUSION OF A PROVISION REQUIRING RESPONDENT
TO SEEK PERMISSION FROM KENYAN AUTHORITIES TO REMOVE SOME DOCUMENTS
FROM KENYA AND IF SUCH PERMISSION WAS DENIED TO GRANT UNITED STATES
AGENTS ACCESS TO THE DOCUMENTS IN THAT COUNTRY.  PP. 532-534. 

430 F.2D 658, REVERSED. 

BRENNAN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN MARCH OF 1968, RESPONDENT WAS SERVED WITH A SUBPOENA DUCES TECUM
COMMANDING HIM TO PRODUCE BEFORE A FEDERAL GRAND JURY ALL BOOKS,
RECORDS, AND DOCUMENTS OF FIVE NAMED COMPANIES DOING BUSINESS IN
KENYA.  HE MOVED, ON SEVERAL GROUNDS, TO QUASH THE SUBPOENA.  THE
DISTRICT COURT DENIED THE MOTION TO QUASH AND, IN LIGHT OF RESPONDENT'S
CLAIM THAT KENYA LAW FORBIDS THE REMOVAL OF BOOKS OF ACCOUNT, MINUTE
BOOKS, AND LISTS OF MEMBERS FROM THE COUNTRY WITHOUT CONSENT OF ITS
REGISTRAR OF COMPANIES, ORDERED HIM TO ATTEMPT TO SECURE SUCH CONSENT
AND, IF UNSUCCESSFUL TO MAKE THE RECORDS AVAILABLE FOR INSPECTION IN
KENYA.  /1/  THE COURT OF APPEALS, 430 F.2D 658 (CA9 1970), HELD THAT
BY DIRECTING RESPONDENT TO MAKE APPLICATION TO A KENYAN OFFICIAL FOR
RELEASE OF SOME OF THE RECORDS, THE DISTRICT COURT HAD DONE "MORE THAN
DENY A MOTION TO QUASH; IT IN EFFECT GRANTED A MANDATORY INJUNCTION." 
ID., AT 659.  THE COURT OF APPEALS THEREFORE CONCLUDED THAT THE ORDER
WAS APPEALABLE UNDER 28 U.S.C. 1292(A)(1) /2/  AND, REACHING THE
MERITS, REVERSED.  IBID.  WE GRANTED CERTIORARI, 400 U.S. 1008 (1971). 
WE CONCLUDE THAT THE DISTRICT COURT'S ORDER WAS NOT APPEALABLE, AND
REVERSE. 

RESPONDENT ASSERTS NO CHALLENGE TO THE CONTINUED VALIDITY OF OUR
HOLDING IN COBBLEDICK V. UNITED STATES, 309 U.S. 323 (1940), THAT ONE
TO WHOM A SUBPOENA IS DIRECTED MAY NOT APPEAL THE DENIAL OF A MOTION TO
QUASH THAT SUBPOENA BUT MUST EITHER OBEY ITS COMMANDS OR REFUSE TO DO
SO AND CONTEST THE VALIDITY OF THE SUBPOENA IF HE IS SUBSEQUENTLY CITED
FOR CONTEMPT ON ACCOUNT OF HIS FAILURE TO OBEY.  RESPONDENT, HOWEVER,
ARGUES THAT COBBLEDICK DOES NOT APPLY IN THE CIRCUMSTANCES BEFORE US
BECAUSE, HE ASSERTS, UNLESS IMMEDIATE REVIEW OF THE DISTRICT COURT'S
ORDER IS AVAILABLE TO HIM, HE WILL BE FORCED TO UNDERTAKE A SUBSTANTIAL
BURDEN IN COMPLYING WITH THE SUBPOENA, AND WILL THEREFORE BE "POWERLESS
TO AVERT THE MISCHIEF OF THE ORDER."  PERLMAN V. UNITED STATES, 247
U.S. 7, 13 (1918). 

WE THINK THAT RESPONDENT'S ASSERTION MISAPPREHENDS THE THRUST OF OUR
CASES.  OF COURSE, IF HE COMPLIES WITH THE SUBPOENA HE WILL NOT
THEREAFTER BE ABLE TO UNDO THE SUBSTANTIAL EFFORT HE HAS EXERTED IN
ORDER TO COMPLY.  /3/  BUT COMPLIANCE IS NOT THE ONLY COURSE OPEN TO
RESPONDENT.  IF, AS HE CLAIMS, THE SUBPOENA IS UNDULY BURDENSOME OR
OTHERWISE UNLAWFUL, HE MAY REFUSE TO COMPLY AND LITIGATE THOSE
QUESTIONS IN THE EVENT THAT CONTEMPT OR SIMILAR PROCEEDINGS ARE BROUGHT
AGAINST HIM.  SHOULD HIS CONTENTIONS BE REJECTED AT THAT TIME BY THE
TRIAL COURT, THEY WILL THEN BE RIPE FOR APPELLATE REVIEW.  /4/  BUT WE
HAVE CONSISTENTLY HELD THAT THE NECESSITY FOR EXPEDITION IN THE
ADMINISTRATION OF THE CRIMINAL LAW JUSTIFIES PUTTING ONE WHO SEEKS TO
RESIST THE PRODUCTION OF DESIRED INFORMATION TO A CHOICE BETWEEN
COMPLIANCE WITH A TRIAL COURT'S ORDER TO PRODUCE PRIOR TO ANY REVIEW OF
THAT ORDER, AND RESISTANCE TO THAT ORDER WITH THE CONCOMITANT
POSSIBILITY OF AN ADJUDICATION OF CONTEMPT IF HIS CLAIMS ARE REJECTED
ON APPEAL.  COBBLEDICK V. UNITED STATES, SUPRA; ALEXANDER V. UNITED
STATES, 201 U.S. 117 (1906); CF. UNITED STATES V. BLUE, 384 U.S. 251
(1966); DIBELLA V. UNITED STATES, 369 U.S. 121 (1962); CARROLL V.
UNITED STATES, 354 U.S. 394 (1957).  ONLY IN THE LIMITED CLASS OF CASES
WHERE DENIAL OF IMMEDIATE REVIEW WOULD RENDER IMPOSSIBLE ANY REVIEW
WHATSOEVER OF AN INDIVIDUAL'S CLAIMS HAVE WE ALLOWED EXCEPTIONS TO THIS
PRINCIPLE.  WE HAVE THUS INDICATED THAT REVIEW IS AVAILABLE IMMEDIATELY
OF A DENIAL OF A MOTION FOR THE RETURN OF SEIZED PROPERTY, WHERE THERE
IS NO CRIMINAL PROSECUTION PENDING AGAINST THE MOVANT.  SEE DIBELLA V.
UNITED STATES, SUPRA, AT 131-132.  DENIAL OF REVIEW IN SUCH
CIRCUMSTANCES WOULD MEAN THAT THE GOVERNMENT MIGHT INDEFINITELY RETAIN
THE PROPERTY WITHOUT ANY OPPORTUNITY FOR THE MOVANT TO ASSERT ON APPEAL
HIS RIGHT TO POSSESSION.  SIMILARLY, IN PERLMAN V. UNITED STATES, 247
U.S.,AT 12-13, WE ALLOWED IMMEDIATE REVIEW OF AN ORDER DIRECTING A
THIRD PARTY TO PRODUCE EXHIBITS WHICH WERE THE PROPERTY OF APPELLANT
AND, HE CLAIMED, IMMUNE FROM PRODUCTION.  TO HAVE DENIED REVIEW WOULD
HAVE LEFT PERLMAN "POWERLESS TO AVERT THE MISCHIEF OF THE ORDER," ID.,
AT 13, FOR THE CUSTODIAN COULD HARDLY HAVE BEEN EXPECTED TO RISK A
CITATION FOR CONTEMPT IN ORDER TO SECURE PERLMAN AN OPPORTUNITY FOR
JUDICIAL REVIEW.  IN THE PRESENT CASE, HOWEVER, RESPONDENT IS FREE TO
REFUSE COMPLIANCE AND, AS WE HAVE NOTED, IN SUCH EVENT HE MAY OBTAIN
FULL REVIEW OF HIS CLAIMS BEFORE UNDERTAKING ANY BURDEN OF COMPLIANCE
WITH THE SUBPOENA.  PERLMAN, THEREFORE, HAS NO APPLICATION IN THE
SITUATION BEFORE US.

FINALLY, WE DO NOT THINK THAT THE DISTRICT COURT'S ORDER WAS
RENDERED A TEMPORARY INJUNCTION APPEALABLE UNDER 28 U.S.C. 1292(A)(1)
BY ITS INCLUSION OF A PROVISION REQUIRING RESPONDENT TO SEEK PERMISSION
FROM THE KENYAN AUTHORITIES TO REMOVE SOME OF THE DOCUMENTS FROM THAT
COUNTRY, AND IN THE EVENT THAT PERMISSION WAS DENIED TO PERMIT
GOVERNMENT OFFICIALS ACCESS TO THE DOCUMENTS IN KENYA.  THE SUBPOENA,
IF VALID, PLACED RESPONDENT UNDER A DUTY TO MAKE IN GOOD FAITH ALL
REASONABLE EFFORTS TO COMPLY WITH IT, AND RESPONDENT HIMSELF HAD
ASSERTED THAT COMPLIANCE WOULD BE IN VIOLATION OF KENYA LAW UNLESS
PERMISSION TO REMOVE WAS PROPERLY OBTAINED.  READ AGAINST THIS
BACKGROUND, THE DISTRICT COURT'S ORDER DID NOTHING MORE THAN INFORM
RESPONDENT BEFORE THE EVENT OF WHAT EFFORTS THE DISTRICT COURT WOULD
CONSIDER SUFFICIENT ATTEMPTS TO COMPLY WITH THE SUBPOENA.  WE CANNOT
IMAGINE THAT RESPONDENT WOULD BE PROSECUTED FOR CONTEMPT IF HE PRODUCED
THE DOCUMENTS AS REQUIRED BUT WITHOUT ATTEMPTING TO OBTAIN PERMISSION
FROM THE AUTHORITIES IN KENYA.  THE ADDITIONAL PROVISIONS IN THE ORDER
ADDED NOTHING TO RESPONDENT'S BURDEN AND; IF ANYTHING, RENDERED THE
BURDEN OF COMPLIANCE LESS ONEROUS.  THEY DID NOT CONVERT DENIAL OF A
MOTION TO QUASH INTO AN APPEALABLE INJUNCTIVE ORDER. 

              REVERSED. 

/1/  THE DISTRICT COURT ORDERED THAT: 

"I.  THE MOTION OF (RESPONDENT) TO QUASH THE SUBPOENA DUCES TECUM IS
DENIED. 

"II.  (RESPONDENT) WILL PRODUCE, WITH THE EXCEPTION OF THE BOOKS OF
ACCOUNT, MINUTE BOOKS AND THE LIST OF MEMBERS, BEFORE THE FEDERAL GRAND
JURY AT LOS ANGELES, CALIFORNIA, ON SEPTEMBER 11, 1968, THE BOOKS,
RECORDS, PAPERS AND DOCUMENTS OF RYAN INVESTMENT, LTD., OF NAIROBI,
KENYA, AND MAWINGO, LTD., OF NANYUKI AND NAIROBI, KENYA, DOING BUSINESS
AS THE MOUNT KENYA SAFARI CLUB, REFERRED TO IN THE . . . SUBPOENA DUCES
TECUM SERVED ON (RESPONDENT). 

"III.  (RESPONDENT) SHALL FORTHWITH MAKE APPLICATION TO THE
REGISTRAR OF COMPANIES IN KENYA TO RELEASE THE BOOKS OF ACCOUNT, MINUTE
BOOKS, AND LIST OF MEMBERS SO THAT (RESPONDENT) MAY PRODUCE THESE
BOOKS, RECORDS, PAPERS AND DOCUMENTS AT THE FEDERAL GRAND JURY HELD AT
LOS ANGELES, CALIFORNIA, ON SEPTEMBER 11, 1968, PROVIDED THAT IF
(RESPONDENT) IS UNABLE TOSECURE THE CONSENT OF THE REGISTRAR OF
COMPANIES OF KENYA, THEN (RESPONDENT) WILL MAKE AVAILABLE TO AGENTS OF
THE UNITED STATES DEPARTMENT OF JUSTICE AND/OR THE UNITED STATES
DEPARTMENT OF TREASURY THE BOOKS OF ACCOUNT, MINUTE BOOKS, AND LIST OF
MEMBERS, OF RYAN INVESTMENT, LTD., AND MAWINGO, LTD., AND THESE AGENTS
MAY INSPECT AND MAKE COPIES OF THESE BOOKS AND RECORDS."  APP. 63-64. 

/2/  THE STATUTE PROVIDES, IN PERTINENT PART, THAT:  "THE COURTS OF
APPEALS SHALL HAVE JURISDICTION OF APPEALS FROM:  (1) INTERLOCUTORY
ORDERS OF THE DISTRICT COURTS OF THE UNITED STATES . . . GRANTING,
CONTINUING, MODIFYING, REFUSING OR DISSOLVING INJUNCTIONS.  . . ." 

/3/  IN SUCH EVENT, OF COURSE, RESPONDENT COULD STILL OBJECT TO THE
INTRODUCTION OF THE SUBPOENAED MATERIAL OR ITS FRUITS AGAINST HIM AT A
CRIMINAL TRIAL.  UNITED STATES V. BLUE, 384 U.S. 251, 255 (1966). 

/4/  WALKER V. BIRMINGHAM, 388 U.S. 307 (1967), IS NOT TO THE
CONTRARY.  OUR HOLDING THAT THE CLAIMS THERE SOUGHT TO BE ASSERTED WERE
NOT OPEN ON REVIEW OF PETITIONERS' CONTEMPT CONVICTIONS WAS BASED UPON
THE AVAILABILITY OF REVIEW OF THOSE CLAIMS AT AN EARLIER STAGE. 

JEROME M. FEIT ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, AND PHILIP R. MONAHAN. 

HERBERT J. MILLER, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM
ON THE BRIEF WERE RAYMOND G. LARROCA AND NATHAN LEWIN. 
..END :



















BELL V. BURSON, 402 U.S. 535 


       BELL V. BURSON, DIRECTOR, GEORGIA DEPARTMENT OF PUBLIC

           SAFETY

        CERTIORARI TO THE COURT OF APPEALS OF GEORGIA

        NO. 5586.  ARGUED MARCH 23, 1971-- DECIDED MAY 24, 1971 


GEORGIA'S MOTOR VEHICLE SAFETY RESPONSIBILITY ACT, WHICH PROVIDES
THAT THE MOTOR VEHICLE REGISTRATION AND DRIVER'S LICENSE OF AN
UNINSURED MOTORIST INVOLVED IN AN ACCIDENT SHALL BE SUSPENDED UNLESS HE
POSTS SECURITY FOR THE AMOUNT OF DAMAGES CLAIMED BY AN AGGRIEVED PARTY
AND WHICH EXCLUDES ANY CONSIDERATION OF FAULT OR RESPONSIBILITY FOR THE
ACCIDENT AT A PRE-SUSPENSION HEARING HELD VIOLATIVE OF PROCEDURAL DUE
PROCESS.  BEFORE GEORGIA, WHOSE STATUTORY SCHEME SIGNIFICANTLY INVOLVES
THE ISSUE OF LIABILITY, MAY DEPRIVE AN INDIVIDUAL OF HIS LICENSE AND
REGISTRATION, IT MUST PROVIDE A PROCEDURE FOR DETERMINING THE QUESTION
WHETHER THERE IS A REASONABLE POSSIBILITY OF A JUDGMENT BEING RENDERED
AGAINST HIM AS A RESULT OF THE ACCIDENT.  PP. 539-543. 

121 GA.APP.  418, 174 S.E.2D 235, REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
HARLAN, STEWART, WHITE, AND MARSHALL, JJ., JOINED.  BURGER, C.J., AND
BLACK AND BLACKMUN, JJ., CONCURRED IN THE RESULT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

GEORGIA'S MOTOR VEHICLE SAFETY RESPONSIBILITY ACT PROVIDES THAT THE
MOTOR VEHICLE REGISTRATION AND DRIVER'S LICENSE OF AN UNINSURED
MOTORIST INVOLVED IN AN ACCIDENT SHALL BE SUSPENDED UNLESS HE POSTS
SECURITY TO COVER THE AMOUNT OF DAMAGES CLAIMED BY AGGRIEVED PARTIES IN
REPORTS OF THE ACCIDENT.  /1/  THE ADMINISTRATIVE HEARING CONDUCTED
PRIOR TO THE SUSPENSION EXCLUDES CONSIDERATION OF THE MOTORIST'S FAULT
OR LIABILITY FOR THE ACCIDENT.  THE GEORGIA COURT OF APPEALS REJECTED
PETITIONER'S CONTENTION THAT THE STATE'S STATUTORY SCHEME, IN FAILING
BEFORE SUSPENDING THE LICENSES TO AFFORD HIM A HEARING ON THE QUESTION
OF HIS FAULT OR LIABLITY, DENIED HIM DUE PROCESS IN VIOLATION OF THE
FOURTEENTH AMENDMENT:  THE COURT HELD THAT "FAULT' OR 'INNOCENCE' ARE
COMPLETELY IRRELEVANT FACTORS."  121 GA.APP.  418, 420, 174 S.E.2D 235,
236 (1970).  THE GEORGIA SUPREME COURT DENIED REVIEW.  APP. 27.  WE
GRANTED CERTIORARI.  400 U.S. 963 (1970).  WE REVERSE. 

PETITIONER IS A CLERGYMAN WHOSE MINISTRY REQUIRES HIM TO TRAVEL BY
CAR TO COVER THREE RURAL GEORGIA COMMUNITIES.  ON SUNDAY AFTERNOON,
NOVEMBER 24, 1968, PETITIONER WAS INVOLVED IN AN ACCIDENT WHEN FIVE
YEAR-OLD SHERRY CAPES RODE HER BICYCLE INTO THE SIDE OF HIS
AUTOMOBILE.  THE CHILD'S PARENTS FILED AN ACCIDENT REPORT WITH THE
DIRECTOR OF THE GEORGIA DEPARTMENT OF PUBLIC SAFETY INDICATING THAT
THEIR DAUGHTER HAD SUFFERED SUBSTANTIAL INJURIES FOR WHICH THEY CLAIMED
DAMAGES OF $5,000.  PETITIONER WAS THEREAFTER INFORMED BY THE DIRECTOR
THAT UNLESS HE WAS COVERED BY A LIABILITY INSURANCE POLICY IN EFFECT AT
THE TIME OF THE ACCIDENT HE MUST FILE A BOND OR CASH SECURITY DEPOSIT
OF $5,000 OR PRESENT A NOTARIZED RELEASE FROM LIABILITY, PLUS PROOF OF
FUTURE FINANCIAL RESPONSIBILITY, /2/  OR SUFFER THE SUSPENSION OF HIS
DRIVER'S LICENSE AND VEHICLE REGISTRATION.  APP. 9.  PETITIONER
REQUESTED AN ADMINISTRATIVE HEARING BEFORE THE DIRECTOR ASSERTING THAT
HE WAS NOT LIABLE AS THE ACCIDENT WAS UNAVOIDABLE, AND STATING ALSO
THAT HE WOULD BE SEVERLY HANDICAPPED IN THE PERFORMANCE OF HIS
MINISTERIAL DUTIES BY A SUSPENSION OF HIS LICENSES.  A HEARING WAS
SCHEDULED BUT THE DIRECTOR INFORMED PETITIONER THAT "(THE ONLY EVIDENCE
THAT THE DEPARTMENT CAN ACCEPT AND CONSIDER IS:  (A) WAS THE PETITIONER
OR HIS VEHICLE INVOLVED IN THE ACCIDENT; (B) HAS PETITIONER COMPLIED
WITH THE PROVISIONS OF THE LAW AS PROVIDED; OR (C) DOES PETITIONER COME
WITHIN ANY OF THE EXCEPTIONS OF THE LAW."  APP. 11.  /3/  AT THE
ADMINISTRATIVE HEARING THE DIRECTOR REJECTED PETITIONER'S PROFFER OF
EVIDENCE ON LIABILITY, ASCERTAINED THAT PETITIONER WAS NOT WITHIN ANY
OF THE STATUTORY EXCEPTIONS, AND GAVE PETITIONER 30 DAYS TO COMPLY WITH
THE SECURITY REQUIREMENTS OR SUFFER SUSPENSION.  PETITIONER THEN
EXERCISED HIS STATUTORY RIGHT TO AN APPEAL DE NOVO IN THE SUPERIOR
COURT.  GA. CODE ANN. SEC. 92A-602 (1958).  AT THAT HEARING, THE COURT
PERMITTED PETITIONER TO PRESENT HIS EVIDENCE ON LIABILITY, AND,
ALTHOUGH THE CLAIMANTS WERE NEITHER PARTIES NOR WITNESSES, FOUND
PETITIONER FREE FROM FAULT.  AS A RESULT, THE SUPERIOR COURT ORDERED
"THAT THE PETITIONER'S DRIVER'S LICENSE NOT BE SUSPENDED . . . (UNTIL)
SUIT IS FILED AGAINST PETITIONER FOR THE PURPOSE OF RECOVERING DAMAGES
FOR THE INJURIES SUSTAINED BY THE CHILD.  . . ."  APP. 15.  THIS ORDER
WAS REVERSED BY THE GEORGIA COURT OF APPEALS IN OVERRULING PETITIONER'S
CONSTITUTIONAL CONTENTION. 

IF THE STATUTE BARRED THE ISSUANCE OF LICENSES TO ALL MOTORISTS WHO
DID NOT CARRY LIABILITY INSURANCE OR WHO DID NOT POST SECURITY, THE
STATUTE WOULD NOT, UNDER OUR CASES, VIOLATE THE FOURTEENTH AMENDMENT. 
EX PARTE PORESKY, 290 U.S. 30 (1933); CONTINENTAL BAKING CO. V.
WOODRING, 286 U.S. 352 (1932); HESS V. PAWLOSKI, 274 U.S. 352 (1927). 
IT DOES NOT FOLLOW, HOWEVER, THAT THE AMENDMENT ALSO PERMITS THE
GEORGIA STATUTORY SCHEME WHERE NOT ALL MOTORISTS, BUT RATHER ONLY
MOTORISTS INVOLVED IN ACCIDENTS, ARE REQUIRED TO POST SECURITY UNDER
PENALTY OF LOSS OF THE LICENSES.  SEE SHAPIRO V. THOMPSON, 394 U.S. 618
(1969); FROST & FROST TRUCKING CO. V. RAILROAD COMM'N, 271 U.S. 583
(1926).  ONCE LICENSES ARE ISSUED, AS IN PETITIONER'S CASE, THEIR
CONTINUED POSSESSION MAY BECOME ESSENTIAL IN THE PURSUIT OF A
LIVELIHOOD.  SUSPENSION OF ISSUED LICENSES THUS INVOLVES STATE ACTION
THAT ADJUDICATES IMPORTANT INTERESTS OF THE LICENSEES.  IN SUCH CASES
THE LICENSES ARE NOT TO BE TAKEN AWAY WITHOUT THAT PROCEDURAL DUE
PROCESS REQUIRED BY THE FOURTEENTH AMENDMENT.  SNIADACH V. FAMILY
FINANCE CORP., 395 U.S. 337 (1969); GOLDBERG V. KELLY, 397 U.S. 254
(1970).  THIS IS BUT AN APPLICATION OF THE GENERAL PROPOSITION THAT
RELEVANT CONSTITUTIONAL RESTRAINTS LIMIT STATE POWER TO TERMINATE AN
ENTITLEMENT WHETHER THE ENTITLEMENT IS DENOMINATED A "RIGHT" OR A
"PRIVILEGE."  SHERBERT V. VERNER, 374 U.S. 398 (1963) (DISQUALIFICATION
FOR UNEMPLOYMENT COMPENSATION); SLOCHOWER V. BOARD OF EDUCATION, 350
U.S. 551 (1956) (DISCHARGE FROM PUBLIC EMPLOYMENT); SPEISER V. RANDALL,
357 U.S. 513 (1958) (DENIAL OF A TAX EXEMPTION); GOLDBERG V. KELLY,
SUPRA (WITHDRAWAL OF WELFARE BENEFITS).  SEE ALSO LONDONER V. DENVER,
210 U.S. 373, 385-386 (1908); GOLDSMITH V. BOARD OF TAX APPEALS, 270
U.S. 117 (1926); OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126
(1941). 

WE TURN THEN TO THE NATURE OF THE PROCEDURAL DUE PROCESS WHICH MUST
BE AFFORDED THE LICENSEE ON THE QUESTION OF HIS FAULT OR LIABILITY FOR
THE ACCIDENT.  /4/  A PROCEDURAL RULE THAT MAY SATISFY DUE PROCESS IN
ONE CONTEXT MAY NOT NECESSARILY SATISFY PROCEDURAL DUE PROCESS IN EVERY
CASE.  THUS, PROCEDURES ADEQUATE TO DETERMINE A WELFARE CLAIM MAY NOT
SUFFICE TO TRY A FELONY CHARGE.  COMPARE GOLDBERG V. KELLY, 397 U.S.,AT
270-271, WITH GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963).  CLEARLY,
HOWEVER, THE INQUIRY INTO FAULT OR LIABILITY REQUISITE TO AFFORD THE
LICENSEE DUE PROCESS NEED NOT TAKE THE FORM OF A FULL ADJUDICATION OF
THE QUESTION OF LIABILITY.  THAT ADJUDICATION CAN ONLY BE MADE IN
LITIGATION BETWEEN THE PARTIES INVOLVED IN THE ACCIDENT.  SINCE THE
ONLY PURPOSE OF THE PROVISIONS BEFORE US IS TO OBTAIN SECURITY FROM
WHICH TO PAY ANY JUDGMENTS AGAINST THE LICENSEE RESULTING FROM THE
ACCIDENT, WE HOLD THAT PROCEDURAL DUE PROCESS WILL BE SATISFIED BY AN
INQUIRY LIMITED TO THE DETERMINATION WHETHER THERE IS A REASONABLE
POSSIBILITY OF JUDGMENTS IN AMOUNTS CLAIMED BEING RENDERED AGAINST THE
LICENSEE. 

THE STATE ARGUES THAT THE LICENSEE'S INTEREST IN AVOIDING THE
SUSPENSION OF HIS LICENSES IS OUTWEIGHED BY COUNTERVAILING GOVERNMENTAL
INTERESTS AND THEREFORE THAT THIS PROCEDURAL DUE PROCESS NEED NOT BE
AFFORDED HIM.  WE DISAGREE.  IN CASES WHERE THERE IS NO REASONABLE
POSSIBILITY OF A JUDGMENT BEING RENDERED AGAINST A LICENSEE, GEORGIA'S
INTEREST IN PROTECTING A CLAIMANT FROM THE POSSIBILITY OF AN
UNRECOVERABLE JUDGMENT IS NOT, WITHING THE CONTEXT OF THE STATE'S FAULT
ORIENTED SCHEME, A JUSTIFICATION FOR DENYING THE PROCESS DUE ITS
CITIZENS.  NOR IS ADDITIONAL EXPENSE OCCASIONED BY THE EXPANDED HEARING
SUFFICIENT TO WITHSTAND THE CONSTITUTIONAL REQUIREMENT.  "'WHILE THE
PROBLEM OF ADDITIONAL EXPENSE MUST BE KEPT IN MIND, IT DOES NOT JUSTIFY
DENYING A HEARING MEETING THE ORDINARY STANDARDS OF DUE PROCESS.'" 
GOLDBERG V. KELLY, 397 U.S.,AT 261, QUOTING KELLY V. WYMAN, 294
F.SUPP.  893, 901 (SDNY 1968). 

THE MAIN THRUST OF GEORGIA'S ARGUMENT IS THAT IT NEED NOT PROVIDE A
HEARING ON LIABILITY BECAUSE FAULT AND LIABILITY ARE IRRELEVANT TO THE
STATUTORY SCHEME.  WE MAY ASSUME THAT WERE THIS SO, THE PRIOR
ADMINISTRATIVE HEARING PRESENTLY PROVIDED BY THE STATE WOULD BE
"APPROPRIATE TO THE NATURE OF THE CASE."  MULLANE V. CENTRAL HANOVER
BANK & TRUST CO., 339 U.S. 306, 313 (1950).  BUT "(IN REVIEWING STATE
ACTION IN THIS AREA . . . WE LOOK TO SUBSTANCE, NOT TO BARE FORM, TO
DETERMINE WHETHER CONSTITUTIONAL MINIMUMS HAVE BEEN HONORED."  WILLNER
V. COMMITTEE ON CHARACTER, 373 U.S. 96, 106-107 (1963) (CONCURRING
OPINION).  AND LOOKING TO THE OPERATION OF THE STATE'S STATUTORY
SCHEME, IT IS CLEAR THAT LIABILITY, IN THE SENSE OF AN ULTIMATE
JUDICIAL DETERMINATION OF RESPONSIBILITY, PLAYS A CRUCIAL ROLE IN THE
SAFETY RESPONSIBILITY ACT.  IF PRIOR TO SUSPENSION THERE IS A RELEASE
FROM LIABILITY EXECUTED BY THE INJURED PARTY, NO SUSPENSION IS WORKED
BY THE ACT.  GA. CODE ANN. SEC. 92A-606 (1958).  THE SAME IS TRUE IF
PRIOR TO SUSPENSION THERE IS AN ADJUDICATION OF NONLIABILITY.  IBID.
EVEN AFTER SUSPENSION HAS BEEN DECLARED, A RELEASE FROM LIABILITY OR AN
ADJUDICATION OF NONLIABILITY WILL LIFT THE SUSPENSION.  GA. CODE ANN.
SEC. 92A-607 (SUPP. 1970).  MOREOVER, OTHER OF THE ACT'S EXCEPTIONS ARE
DEVELOPED AROUND LIABILITY-RELATED CONCEPTS.  THUS, WE ARE NOT DEALING
HERE WITH A NO-FAULT SCHEME.  SINCE THE STATUTORY SCHEME MAKES
LIABILITY AN IMPORTANT FACTOR IN THE STATE'S DETERMINATION TO DEPRIVE
AN INDIVIDUAL OF HIS LICENSES, THE STATE MAY NOT, CONSISTENTLY WITH DUE
PROCESS, ELIMINATE CONSIDERATION OF THAT FACTOR IN ITS PRIOR HEARING. 

THE HEARING REQUIRED BY THE DUE PROCESS CLAUSE MUST BE "MEANINGFUL,"
ARMSTRONG V. MANZO, 380 U.S. 545, 552 (1965), AND "APPROPRIATE TO THE
NATURE OF THE CASE."  MULLANE V. CENTRAL HANOVER BANK & TRUST CO.,
SUPRA, AT 313.  IT IS A PROPOSITION WHICH HARDLY SEEMS TO NEED
EXPLICATION THAT A HEARING WHICH EXCLUDES CONSIDERATION OF AN ELEMENT
ESSENTIAL TO THE DECISION WHETHER LICENSES OF THE NATURE HERE INVOLVED
SHALL BE SUSPENDED DOES NOT MEET THIS STANDARD. 

FINALLY, WE REJECT GEORGIA'S ARGUMENT THAT IF IT MUST AFFORD THE
LICENSEE AN INQUIRY INTO THE QUESTION OF LIABILITY, THAT DETERMINATION,
UNLIKE THE DETERMINATION OF THE MATTERS PRESENTLY CONSIDERED AT THE
AMINISTRATIVE HEARING, NEED NOT BE MADE PRIOR TO THE SUSPENSION OF THE
LICENSES.  WHILE "(MANY CONTROVERSIES HAVE RAGED ABOUT . . . THE DUE
PROCESS CLAUSE," IBID., IT IS FUNDAMENTAL THAT EXCEPT IN EMERCENCY
SITUATIONS (AND THIS IS NOT ONE) /5/  DUE PROCESS REQUIRES THAT WHEN A
STATE SEEKS TO TERMINATE AN INTEREST SUCH AS THAT HERE INVOLVED, IT
MUST AFFORD "NOTICE AND OPPORTUNITY FOR HEARING APPROPRIATE TO THE
NATURE OF THE CASE" BEFORE THE TERMINATION BECOMES EFFECTIVE.  IBID.
OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S.,AT 152-156; SNIADACH V.
FAMILY FINANCE CORP., SUPRA; GOLDBERG V. KELLY, SUPRA; WISCONSIN V.
CONSTANTIENEAU, 400 U.S. 433 (1971). 

WE HOLD, THEN, THAT UNDER GEORGIA'S PRESENT STATUTORY SCHEME, BEFORE
THE STATE MAY DEPRIVE PETITIONER OF HIS DRIVER'S LICENSE AND VEHICLE
REGISTRATION IT MUST PROVIDE A FORUM FOR THE DETERMINATION OF THE
QUESTION WHETHER THERE IS A REASONABLE POSSIBILIY OF A JUDGMENT BEING
RENDERED AGAINST HIM AS A RESULT OF THE ACCIDENT.  WE DEEM IT
INAPPROPRIATE IN THIS CASE TO DO MORE THAN LAY DOWN THIS REQUIREMENT. 
THE ALTERNATIVE METHODS OF COMPLIANCE ARE SEVERAL.  GEORGIA MAY DECIDE
MERELY TO INCLUDE CONSIDERATION OF THE QUESTION AT THE ADMINISTRATIVE
HEARING NOW PROVIDED, OR IT MAY ELECT TO POSTPONE SUCH A CONSIDERATION
TO THE DE NOVO JUDICIAL PROCEEDINGS IN THE SUPERIOR COURT.  GEORGIA MAY
DECIDE TO WITHHOLD SUSPENSION UNTIL ADJUDICATION OF AN ACTION FOR
DAMAGES BROUGHT BY THE INJURED PARTY.  INDEED, GEORGIA MAY ELECT TO
ABANDON ITS PRESENT SCHEME COMPLETELY AND PURSUE ONE OF THE VARIOUS
ALTERNATIVES IN FORCE IN OTHER STATES.  /6/  FINALLY, GEORGIA MAY
REJECT ALL OF THE ABOVE AND DEVISE AN ENTIRELY NEW REGULATORY SCHEME. 
THE AREA OF CHOICE IS WIDE:  WE HOLD ONLY THAT THE FAILURE OF THE
PRESENT GEORGIA SCHEME TO AFFORD THE PETITIONER A PRIOR HEARING ON
LIABILITY OF THE NATURE WE HAVE DEFINED DENIED HIM PROCEDURAL DUE
PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  MOTOR VEHICLE SAFETY RESPONSIBILITY ACT, GA. CODE ANN. SEC. 92A
601 ET SEQ. (1958).  IN PERTINENT PART THE ACT PROVIDES THAT ANYONE
INVOLVED IN AN ACCIDENT MUST SUBMIT A REPORT TO THE DIRECTOR OF PUBLIC
SAFETY.  GA. CODE ANN. SEC. 92A-604 (SUPP. 1970).  WITHIN 30 DAYS OF
THE RECEIPT OF THE REPORT THE DIRECTOR "SHALL SUSPEND THE LICENSE AND
ALL REGISTRATION CERTIFICATES AND ALL REGISTRATION PLATES OF THE
OPERATOR AND OWNER OF ANY MOTOR VEHICLE IN ANY MANNER INVOLVED IN THE
ACCIDENT UNLESS OR UNTIL THE OPERATOR OR OWNER HAS PREVIOUSLY FURNISHED
OR IMMEDIATELY FURNISHES SECURITY, SUFFICIENT . . . TO SATISFY ANY
JUDGMENTS FOR DAMAGES OR INJURIES RESULTING . . . AND UNLESS SUCH
OPERATOR OR OWNER SHALL GIVE PROOF OF FINANCIAL RESPONSIBILITY FOR THE
FUTURE AS IS REQUIRED IN SECTION 92A-615.1.  . . ."  GA. CODE ANN. SEC.
92A-605(A) (SUPP. 1970).  SECTION 92A-615.1 (SUPP. 1970) REQUIRES THAT
"SUCH PROOF MUST BE MAINTAINED FOR A ONE-YEAR PERIOD."  SECTION 92A
605(A) WORKS NO SUSPENSION, HOWEVER, (1) IF THE OWNER OR OPERATOR HAD
IN EFFECT AT THE TIME OF THE ACCIDENT A LIABILITY INSURANCE POLICY OR
OTHER BOND, GA. CODE ANN. SEC. 92A-605(C) (SUPP. 1970); (2) IF THE
OWNER OR OPERATOR QUALIFIES AS A SELF-INSURER, IBID; (3) IF ONLY THE
OWNER OR OPERATOR WAS INJURED, GA. CODE ANN. SEC. 92A-606 (1958); (4)
IF THE AUTOMOBILE WAS LEGALLY PARKED AT THE TIME OF THE ACCIDENT,
IBID.; (5) IF AS TO AN OWNER, THE AUTOMOBILE WAS BEING OPERATED WITHOUT
PERMISSION, IBID; OR (6) "(IF, PRIOR TO THE DATE THAT THE DIRECTOR
WOULD OTHERWISE SUSPEND LICENSE AND REGISTRATION . . . THERE SHALL BE
FILED WITH THE DIRECTOR EVIDENCE SATISFACTORY TO HIM THAT THE PERSON
WHO WOULD OTHERWISE HAVE TO FILE SECURITY HAS BEEN RELEASED FROM
LIABILITY OR BEEN FINALLY ADJUDICATED NOT TO BE LIABLE OR HAS EXECUTED
A DULY ACKNOWLEDGED WRITTEN AGREEMENT PROVIDING FOR THE PAYMENT OF AN
AGREED AMOUNT IN INSTALLMENTS.  . . ."  IBID.     /2/  QUESTIONS
CONCERNING THE REQUIREMENT OF PROOF OF FUTURE FINANCIAL RESPONSIBILITY
ARE NOT BEFORE US.  THE STATE'S BRIEF, AT 4, STATES:  "THE ONE YEAR
PERIOD FOR PROOF OF FINANCIAL RESPONSIBILITY HAS NOW EXPIRED, SO
(PETITIONER) WOULD NOT BE REQUIRED TO FILE SUCH PROOF, EVEN IF THE
COURT OF APPEALS DECISION WERE AFFIRMED." 

/3/  GA. CODE ANN. SEC. 92A-602 (1958) PROVIDES: 

"THE DIRECTOR SHALL ADMINISTER AND ENFORCE THE PROVISIONS OF THIS
CHAPTER AND MAY MAKE RULES AND REGULATIONS NECESSARY FOR ITS
ADMINISTRATION AND SHALL PROVIDE FOR HEARINGS UPON REQUEST OF PERSONS
AGGRIEVED BY ORDERS OR ACTS OF THE DIRECTOR UNDER THE PROVISIONS OF
THIS CHAPTER.  SUCH HEARING NEED NOT BE A MATTER OF RECORD AND THE
DECISION AS RENDERED BY THE DIRECTOR SHALL BE FINAL UNLESS THE
AGGRIEVED PERSON SHALL DESIRE AN APPEAL, IN WHICH CASE HE SHALL HAVE
THE RIGHT TO ENTER AN APPEAL TO THE SUPERIOR COURT OF THE COUNTY OF HIS
RESIDENCE, BY NOTICE TO THE DIRECTOR, IN THE SAME MANNER AS APPEALS ARE
ENTERED FROM THE COURT OF ORDINARY, EXCEPT THAT THE APPELLANT SHALL NOT
BE REQUIRED TO POST ANY BOND NOR PAY THE COSTS IN ADVANCE.  IF THE
AGGRIEVED PERSON DESIRES, THE APPEAL MAY BE HEARD BY THE JUDGE AT TERM
OR IN CHAMBERS OR BEFORE A JURY AT THE FIRST TERM.  THE HEARING ON THE
APPEAL SHALL BE DE NOVO, HOWEVER, SUCH APPEAL SHALL NOT ACT AS A
SUPERSEDEAS OF ANY ORDERS OR ACTS OF THE DIRECTOR, NOR SHALL THE
APPELLANT BE ALLOWED TO OPERATE OR PERMIT A MOTOR VEHICLE TO BE
OPERATED IN VIOLATION OF ANY SUSPENSION OR REVOCATION BY THE DIRECTOR,
WHILE SUCH APPEAL IS PENDING.  A NOTICE SENT BY REGISTERED MAIL SHALL
BE SUFFICIENT SERVICE ON THE DIRECTOR THAT SUCH APPEAL HAS BEEN
ENTERED." 

/4/  PETITIONER STATED AT ORAL ARGUMENT THAT WHILE "IT WOULD BE
POSSIBLE TO RAISE (AN EQUAL PROTECTION ARGUMENT) . . . WE DON'T RAISE
THE POINT HERE."  TR. OF ORAL ARG. 14. 

/5/  SEE, E.G., FAHEY V. MALLONEE, 332 U.S. 245 (1947); EWING V.
MYTINGER & CASSELBERRY, 339 U.S. 594 (1950). 

/6/  THE VARIOUS ALTERNATIVES INCLUDE COMPULSORY INSURANCE PLANS,
PUBLIC OR JOINT PUBLIC-PRIVATE UNSATISFIED JUDGMENT FUNDS, AND ASSIGNED
CLAIMS PLANS.  SEE R. KEETON & J. O'CONNELL, AFTER CARS CRASH (1967). 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE BLACKMUN
CONCUR IN THE RESULT. 

ELIZABETH ROEDIGER RINDSKOPF ARGUED THE CAUSE FOR PETITIONER PRO HAC
VICE.  WITH HER ON THE BRIEF WAS HOWARD MOORE, JR. 

DOROTHY T. BEASLEY, ASSISTANT ATTORNEY GENERAL OF GEORGIA, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HER ON THE BRIEF WERE ARTHUR K. BOLTON,
ATTORNEY GENERAL, HAROLD N. HILL, JR., EXECUTIVE ASSISTANT ATTORNEY
GENERAL, AND COURTNEY WILDER STANTON, ASSISTANT ATTORNEY GENERAL. 
..END :




















PALMER V. CITY OF EUCLID, 402 U.S. 544 


       PALMER V. CITY OF EUCLID, OHIO

        ON APPEAL FROM THE SUPREME COURT OF OHIO

        NO. 143.  ARGUED JANUARY 11, 1971-- DECIDED MAY 24, 1971 


APPELLANT, WHO HAD BEEN SEEN TO DRIVE HIS CAR LATE AT NIGHT FROM A
PARKING LOT AND DISCHARGE A FEMALE AT AN APARTMENT HOUSE, PARK ON THE
STREET, AND USE A TWO-WAY RADIO, AND WHO THEREAFTER GAVE THE POLICE
MULTIPLE ADDRESSES AND DENIED KNOWLEDGE OF HIS FRIEND'S IDENTITY, WAS
CONVICTED OF VIOLATING THE EUCLID, OHIO, "SUSPICIOUS PERSON ORDINANCE,"
WHICH MAKES IT A CRIME TO (1) WANDER ABOUT THE STREETS OR BE ABROAD AT
LATE OR UNUSUAL HOURS; (2) BE AT THE TIME WITHOUT VISIBLE OR LAWFUL
BUSINESS; AND (3) FAIL SATISFACTORILY TO EXPLAIN ONE'S PRESENCE ON THE
STREETS.  HIS CONVICTION WAS UPHELD ON APPEAL.  HELD:  THE ORDINANCE IS
UNCONSTITUTIONALLY VAGUE AS APPLIED TO APPELLANT SINCE IT GAVE
INSUFFICIENT NOTICE THAT APPELLANT'S CONDUCT IN THE PARKED CAR OR IN
DISCHARGING HIS PASSENGER WAS ENOUGH TO SHOW HIM TO BE "WITHOUT VISIBLE
OR LAWFUL BUSINESS." 

REVERSED. 

PER CURIAM. 

APPELLANT PALMER WAS CONVICTED BY A JURY OF VIOLATING THE CITY OF
EUCLID'S "SUSPICOUS PERSON ORDINANCE," THAT IS, OF BEING 

     "(ANY PERSON WHO WANDERS ABOUT THE STREETS OR OTHER PUBLIC
WAYS

  OR WHO IS FOUND ABROAD AT LATE OR UNUSUAL HOURS IN THE NIGHT

  WITHOUT ANY VISIBLE OR LAWFUL BUSINESS AND WHO DOES NOT GIVE

  SATISFACTORY ACCOUNT OF HIMSELF." 

HE WAS FINED $50 AND SENTENCED TO 30 DAYS IN JAIL.  THE COUNTY COURT OF
APPEALS AFFIRMED THE JUDGMENT AND APPEAL TO THE SUPREME COURT OF OHIO
WAS DISMISSED "FOR THE REASON THAT NO SUBSTANTIAL CONSTITUTIONAL
QUESTION EXISTS HEREIN."  WE NOTED PROBABLE JURISDICTION.  397 U.S.
1073 (1970). 

WE REVERSE THE JUDGMENT AGAINST PALMER BECAUSE THE ORDINANCE IS SO
VAGUE AND LACKING IN ASCERTAINABLE STANDARDS OF GUILT THAT, AS APPLIED
TO PALMER, IT FAILED TO GIVE "A PERSON OF ORDINARY INTELLIGENCE FAIR
NOTICE THAT HIS CONTEMPLATED CONDUCT IS FORBIDDEN.  . . ."  UNITED
STATES V. HARRISS, 347 U.S. 612, 617 (1954). 

THE ELEMENTS OF THE CRIME DEFINED BY THE ORDINANCE APPARENTLY ARE
(1) WANDERING ABOUT THE STREETS OR BEING ABROAD AT LATE OR UNUSUAL
HOURS; (2) BEING AT THE TIME WITHOUT VISIBLE OR LAWFUL BUSINESS; /1/
AND (3) FAILING TO GIVE A SATISFACTORY EXPLANATION FOR HIS PRESENCE ON
THE STREETS.  PALMER, IN HIS CAR, WAS SEEN LATE AT NIGHT IN A PARKING
LOT.  A FEMALE LEFT HIS CAR AND ENTERED BY THE FRONT DOOR AN ADJOINING
APARTMENT HOUSE.  PALMER THEN PULLED ONTO THE STREET, PARKED WITH HIS
LIGHTS ON, AND USED A TWO-WAY RADIO.  HE WAS NOT ARMED.  HE SAID HE HAD
JUST LET OFF A FRIEND.  HE WAS THEN ARRESTED.  AT THE STATION HE GAVE
THREE DIFFERENT ADDRESSES FOR HIMSELF AND SAID HE DID NOT KNOW HIS
FRIEND'S NAME OR WHERE SHE WAS GOING WHEN SHE LEFT HIS CAR.  PALMER
COULD REASONABLY BE CHARGED WITH KNOWING THAT HE WAS ON THE STREETS AT
A LATE OR UNUSUAL HOUR AND THAT DENYING KNOWLEDGE OF HIS FRIEND'S
IDENTITY AND CLAIMING MULTIPLE ADDRESSES AMOUNTED TO AN UNSATISFACTORY
EXPLANATION UNDER THE ORDINANCE.  BUT IN OUR VIEW THE ORDINANCE GAVE
INSUFFICIENT NOTICE TO THE AVERAGE PERSON THAT DISCHARGING A FRIEND AT
AN APARTMENT HOUSE AND THEN TALKING ON A CAR RADIO WHILE PARKED ON THE
STREET WAS ENOUGH TO SHOW HIM TO BE "WITHOUT ANY VISIBLE OR LAWFUL
BUSINESS."  INSOFAR AS THIS RECORD REVEALS, EVERYTHING APPELLANT DID
WAS QUITE VISIBLE AND THERE IS NO SUGGESTION WHATSOEVER THAT WHAT HE
DID WAS UNLAWFUL UNDER LOCAL, STATE, OR FEDERAL LAW.  IF HIS CONDUCT
NEVERTHELESS SATISFIED THE BEING-WITHOUT-VISIBLE-OR-LAWFUL-BUSINESS
ELEMENT OF THE ORDINANCE, AS THE STATE COURTS MUST HAVE HELD, IT IS
QUITE UNREASONABLE IN OUR VIEW TO CHARGE HIM WITH NOTICE THAT SUCH
WOULD BE THE CONSTRUCTION OF THE ORDINANCE.  "THE UNDERLYING PRINCIPLE
IS THAT NO MAN SHALL BE HELD CRIMINALLY RESPONSIBLE FOR CONDUCT WHICH
HE COULD NOT REASONABLY UNDERSTAND TO BE PROSCRIBED."  UNITED STATES V.
HARRISS, SUPRA, AT 617; BOUIE V. COLUMBIA, 378 U.S. 347 (1964); WRIGHT
V. GEORGIA, 373 U.S. 284 (1963). 

THE JUDGMENT OF THE SUPREME COURT OF OHIO IS REVERSED. 

              IT IS SO ORDERED. 

/1/  THE ORDINANCE SEEMINGLY REQUIRES A "BUSINESS" PURPOSE TO BE ON
THE STREETS.  BUT IT SEEMS IRRATIONAL TO CONSTRUE THE ORDINANCE AS
PERMITTING ONLY VISIBLE AND LAWFUL COMMERCIAL ACTIVITIES ON THE
STREETS, THUS IN EFFECT CONVERTING THE ORDINANCE INTO A CURFEW WITH
EXCEPTIONS FOR LAWFUL COMMERCIAL CONDUCT.  NEITHER THE LOWER COURT NOR
APPELLEE CITY SUGGESTS THAT THE ORDINANCE SHOULD BE CONSTRUED IN THIS
MANNER OR THAT ANYONE WOULD EXPECT THAT IT WOULD BE SO CONSTRUED. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
CONCURRING. 

WHILE I AGREE WITH THE COURT THAT EUCLID'S "SUSPICIOUS PERSON
ORDINANCE" IS UNCONSTITUTIONAL AS APPLIED TO THE APPELLANT, I WOULD GO
FURTHER AND HOLD THAT THE ORDINANCE IS UNCONSTITUTIONALLY VAGUE ON ITS
FACE. 

A POLICEMAN HAS A DUTY TO INVESTIGATE SUSPICIOUS CIRCUMSTANCES, AND
THE CIRCUMSTANCE OF A PERSON WANDERING THE STREETS LATE AT NIGHT
WITHOUT APPARENT LAWFUL BUSINESS MAY OFTEN PRESENT THE OCCASION FOR
POLICE INQUIRY.  BUT IN MY VIEW GOVERNMENT DOES NOT HAVE CONSTITUTIONAL
POWER TO MAKE THAT CIRCUMSTANCE, WITHOUT MORE, A CRIMINAL OFFENSE. 

NIKI Z. SCHWARTZ ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WAS JOSHUA J. KANCELBAUM. 

DAVID J. LOMBARDO ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS WILLIAM T. MONROE. 
..END :




BOSTIC V. UNITED STATES, 402 U.S. 547 


       BOSTIC V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 5250.  ARGUED APRIL 21, 1971-- DECIDED MAY 24, 1971 


WRIT OF CERTIORARI, GRANTED TO REVIEW COURT OF APPEALS' AFFIRMANCE OF
PETITIONER'S CONVICTION OF CONSPIRACY TO COMMIT MURDER, DISMISSED AS
IMPROVIDENTLY GRANTED SINCE, CONTRARY TO THAT COURT'S OPINION AND
GOVERNMENT'S REPRESENTATION, IT NOW APPEARS THAT PETITIONER WAS NOT
CHARGED WITH OR CONVICTED OF THAT OFFENSE. 

424 F.2D 951, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 

PER CURIAM. 

WE GRANTED THE WRIT OF CERTIORARI IN THIS CASE /1/  TO CONSIDER
WHETHER THE COURT OF APPEALS FOR THE SIXTH CIRCUIT HAD ERRED IN HOLDING
THAT THE PETITIONER HAD PROPERLY BEEN CONVICTED OF CONSPIRACY TO COMMIT
MURDER IN ORDER TO AVOID APPREHENSION FOR THE ROBBERY OF A FEDERALLY
INSURED BANK.  THE COURT OF APPEALS PURPORTED TO UPHOLD A CONVICTION
FOR THIS OFFENSE, THOUGH THERE WAS NO EVIDENCE THAT THE PETITIONER KNEW
OF THE PLAN TO COMMIT MURDER, AND HE HAD BEEN CONFINED IN PRISON FOR
SEVERAL MONTHS PRIOR TO THE DATE THE MURDER WAS COMMITTED.  /2/  THE
MEMORANDUM FOR THE UNITED STATES IN OPPOSITION TO THE GRANTING OF THE
WRIT URGED THAT THE PETITIONER WAS "RESPONSIBLE FOR THE ACTIONS OF HIS
CO-CONSPIRATORS IN KILLING ONE MEMBER OF THE GROUP," AND AS TO THIS
ISSUE, RELIED ON THE OPINION OF THE COURT OF APPEALS. 

IT NOW APPEARS THAT THESE STATEMENTS IN THE OPINION OF THE COURT OF
APPEALS AND IN THE MEMORANDUM OF THE UNITED STATES WERE ERRONEOUS, AND
THAT THE FACTS ARE NOT AS WE BELIEVED THEM TO BE AT THE TIME WE GRANTED
THE WRIT.  THE RECORD SHOWS THAT THE PETITIONER WAS NEITHER CHARGED
WITH NOR CONVICTED OF THE OFFENSE OF CONSPIRACY TO COMMIT MURDER.  THE
CONSPIRACY COUNT ON WHICH THE PETITIONER WAS CONVICTED DID NOT INCLUDE
ANY CHARGE OF CONSPIRACY TO MURDER.  INDEED, IN HIS CLOSING ARGUMENT TO
THE JURY THE PROSECUTOR STATED THAT THE PETITIONER HAD LEFT THE
CONSPIRACY PRIOR TO THE MURDER, WHEN HE WAS RETURNED TO THE
PENITENTIARY. 

INASMUCH AS OUR GRANT OF THE WRIT OF CERTIORARI IN THIS CASE WAS
PREDICATED ON THE MISTAKEN REPRESENTATION THAT THE PETITIONER HAD BEEN
CONVICTED OF THE OFFENSE OF CONSPIRACY TO COMMIT MURDER, WE NOW DISMISS
THE WRIT AS IMPROVIDENTLY GRANTED. 

              IT IS SO ORDERED. 

/1/  400 U.S. 991. 

/2/  424 F.2D 951.  THE OPINION RECITES THAT THE CONSPIRACY COUNT ON
WHICH THE PETITIONER WAS CONVICTED "ALLEGED A CONSPIRACY TO ROB
FEDERALLY INSURED BANKS WITH DANGEROUS WEAPONS AND TO COMMIT MURDER TO
AVOID APPREHENSION FOR SAME."  424 F.2D,AT 953.  THE COURT WENT ON TO
SAY, "AS TO BOSTIC, ALTHOUGH HE HAD BEEN RETURNED TO THE PENTENTIARY
SOMETIME BEFORE FERGUSON'S MURDER, THERE IS NO EVIDENCE THAT HE HAD
RENOUNCED OR WITHDRAWN FROM THE CONSPIRACY."  424 F.2D, AT 964. 

THOMAS C. BINKLEY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS PHILIP M. CARDEN. 

BEATRICE ROSENBERG ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HER
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WILSON, AND JEROME M. FEIT. 
..END :






ORGANIZATION FOR A BETTER AUSTIN V. KEEFE, 402 U.S. 415 


       ORGANIZATION FOR A BETTER AUSTIN ET AL. V. KEEFE

        CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIRST

           DISTRICT

        NO. 135.  ARGUED JANUARY 20, 1971-- DECIDED MAY 17, 1971 


RESPONDENT REAL ESTATE BROKER APPLIED FOR AND OBTAINED FROM THE
ILLINOIS COURTS AN INJUNCTION ENJOINING PETITIONERS FROM DISTRIBUTING
ANY LITERATURE IN THE CITY OF WESTCHESTER, ON THE GROUND THAT THEIR
LEAFLETS, CRITICAL OF RESPONDENT'S ALLEGED "BLOCKBUSTING" AND "PANIC
PEDDLING" ACTIVITIES IN THE AUSTIN AREA OF CHICAGO, INVADED
RESPONDENT'S RIGHT OF PRIVACY, AND WERE COERCIVE AND INTIMIDATING
RATHER THAN INFORMATIVE, THUS NOT BEING ENTITLED TO FIRST AMENDMENT
PROTECTION.  HELD:  RESPONDENT HAS NOT MET THE HEAVY BURDEN OF
JUSTIFYING THE IMPOSITION OF THE PRIOR RESTRAINT OF PETITIONERS'
PEACEFUL DISTRIBUTION OF INFORMATIONAL LITERATURE OF THE NATURE
DISCLOSED BY THIS RECORD.  PP. 418-420. 

115 ILL.APP.2D 236, 253 N.E.2D 76, REVERSED. 

BURGER, C.J., DELIVERED THE OPINION OF THE COURT IN WHICH BLACK,
DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED. 
HARLAN, J., FILED A DISSENTING OPINION, POST, P. 420. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT IN THIS CASE TO CONSIDER THE CLAIM THAT AN ORDER
OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, ENJOINING PETITIONERS
FROM DISTRIBUTING LEAFLETS ANYWHERE IN THE TOWN OF WESTCHESTER,
ILLINOIS, VIOLATES PETITIONERS' RIGHTS UNDER THE FEDERAL CONSTITUTION. 

PETITIONER ORGANIZATION FOR A BETTER AUSTIN (OBA) IS A RACIALLY
INTEGRATED COMMUNITY ORGANIZATION IN THE AUSTIN NEIGHBORHOOD OF
CHICAGO.  RESPONDENT IS A REAL ESTATE BROKER WHOSE OFFICE AND BUSINESS
ACTIVITIES ARE IN THE AUSTIN NEIGHBORHOOD.  HE RESIDES IN WESTCHESTER,
ILLINOIS, A SUBURB OF CHICAGO SOME SEVEN MILES FROM THE AUSTIN AREA. 

OBA IS AN ORGANIZATION WHOSE STATED PURPOSE IS TO "STABILIZE" THE
RACIAL RATIO IN THE AUSTIN AREA.  FOR A NUMBER OF YEARS THE BOUNDARY OF
THE NEGRO SEGREGATED AREA OF CHICAGO HAS MOVED PROGRESSIVELY WEST TO
AUSTIN.  OBA, IN ITS EFFORTS TO "STABILIZE" THE AREA-- SO IT DESCRIBES
ITS PROGRAM-- HAS OPPOSED AND PROTESTED VARIOUS REAL ESTATE TACTICS AND
ACTIVITIES GENERALLY KNOWN AS "BLOCKBUSING" OR "PANIC PEDDLING." 

IT WAS THE CONTENTION OF OBA THAT RESPONDENT HAD BEEN ONE OF THOSE
WHO ENGAGED IN SUCH TACTICS, SPECIFICALLY THAT HE AROUSED THE FEARS OF
THE LOCAL WHITE RESIDENTS THAT NEGROES WERE COMING INTO THE AREA AND
THEN, EXPLOITING THE REACTIONS AND EMOTIONS SO AROUSED, WAS ABLE TO
SECURE LISTINGS AND SELL HOMES TO NEGROES.  OBA ALLEGED THAT SINCE 1961
RESPONDENT HAD FROM TIME TO TIME ACTIVELY PROMOTED SALES IN THIS MANNER
BY MEANS OF FLYERS, PHONE CALLS, AND PERSONAL VISITS TO RESIDENTS OF
THE AREA IN WHICH HIS OFFICE IS LOCATED, WITHOUT REGARD TO WHETHER THE
PERSONS SOLICITED HAD EXPRESSED ANY DESIRE TO SELL THEIR HOMES.  AS THE
"BOUNDARY" MARKING THE FURTHEST WESTWARD ADVANCE OF NEGROES MOVED INTO
THE AUSTIN AREA, RESPONDENT IS ALLEGED TO HAVE MOVED HIS OFFICE ALONG
WITH IT.

COMMUNITY MEETINGS WERE ARRANGED WITH RESPONDENT TO TRY TO PERSUADE
HIM TO CHANGE HIS REAL ESTATE PRACTICES.  SEVERAL OTHER REAL ESTATE
AGENTS WERE PREVAILED ON TO SIGN AN AGREEMENT WHEREBY THEY WOULD NOT
SOLICIT PROPERTY, BY PHONE, FLYER, OR VISIT, IN THE AUSTIN COMMUNITY. 
RESPONDENT WHO HAS CONSISTENTLY DENIED THAT HE IS ENGAGING IN "PANIC
PEDDLING" OR "BLOCKBUSTING" REFUSED TO SIGN, CONTENDING THAT IT WAS HIS
RIGHT UNDER ILLINOIS LAW TO SOLICIT REAL ESTATE BUSINESS AS HE SAW
FIT. 

THEREAFTER, DURING SEPTEMBER AND OCTOBEER OF 1967, MEMBERS OF
PETITIONER ORGANIZATION DISTRIBUTED LEAFLETS IN WESTCHESTER DESCRIBING
RESPONDENT'S ACTIVITIES.  THERE WAS NO EVIDENCE OF PICKETING IN
WESTCHESTER.  THE CHALLENGED PUBLICATIONS, NOW ENJOINED, WERE CRITICAL
OF RESPONDENT'S REAL ESTATE PRACTICES IN THE AUSTIN NEIGHBORHOOD; ONE
OF THE LEAFLETS SET OUT THE BUSINESS CARD RESPONDENT USED TO SOLICIT
LISTINGS, QUOTED HIM AS SAYING "I ONLY SELL TO NEGROES," CITED A
CHICAGO DAILY NEWS ARTICLE DESCRIBING HIS REAL ESTATE ACTIVITIES AND
ACCUSED HIM OF BEING A "PANIC PEDDLER."  ANOTHER LEAFLET, OF THE SAME
GENERAL ORDER, STATED THAT:  "WHEN HE SIGNS THE AGREEMENT, WE STOP
COMING TO WESTCHESTER."  TWO OF THE LEAFLETS REQUESTED RECIPIENTS TO
CALL RESPONDENT AT HIS HOME PHONE NUMBER AND URGE HIM TO SIGN THE "NO
SOLICITATION" AGREEMENT.  ON SEVERAL DAYS LEAFLETS WERE GIVEN TO
PERSONS IN A WESTCHESTER SHOPPING CENTER.  ON TWO OTHER OCCASIONS
LEAFLETS WERE PASSED OUT TO SOME PARISHIONERS ON THEIR WAY TO OR FROM
RESPONDENT'S CHURCH IN WESTCHESTER.  LEAFLETS WERE ALSO LEFT AT THE
DOORS OF HIS NEIGHBORS.  THE TRIAL COURT FOUND THAT
PETITIONERS'"DISTRIBUTION OF LEAFLETS WAS ON ALL OCCASIONS CONDUCTED IN
A PEACEFUL AND ORDERLY MANNER, DID NOT CAUSE ANY DISRUPTION OF
PEDESTRIAN OR VEHICULAR TRAFFIC, AND DID NOT PRECIPITATE ANY FIGHTS,
DISTURBANCES OR OTHER BREACHES OF THE PEACE."  ONE OF THE OFFICERS OF
OBA TESTIFIED AT TRIAL THAT HE HOPED THAT RESPONDENT WOULD BE INDUCED
TO SIGN THE NO-SOLICITATION AGREEMENT BY LETTING "HIS NEIGHBORS KNOW
WHAT HE WAS DOING TO US." 

RESPONDENT SOUGHT AN INJUNCTION IN THE CIRCUIT COURT OF COOK COUNTY,
ILLINOIS, ON DECEMBER 20, 1967.  AFTER AN ADVERSARY HEARING THE TRIAL
COURT ENTERED A TEMPORARY INJUNCTION ENJOINING PETITIONERS "FROM
PASSING OUT PAMPHLETS, LEAFLETS OR LITERATURE OF ANY KIND, AND FROM
PICKETING, ANYWHERE IN THE CITY OF WESTCHESTER, ILLINOIS." 

ON APPEAL TO THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THAT
COURT AFFIRMED.  IT SUSTAINED THE FINDING OF FACT THAT PETITIONERS'
ACTIVITIES IN WESTCHESTER HAD INVADED RESPONDENT'S RIGHT OF PRIVACY,
AHD CAUSED IRREPARABLE HARM, AND WERE WITHOUT ADEQUATE REMEDY AT LAW. 
THE APPELLATE COURT APPEARS TO HAVE VIEWED THE ALLEGED ACTIVITIES AS
COERCIVE AND INTIMIDATING, RATHER THAN INFORMATIVE AND THEREFORE AS NOT
ENTITLED TO FIRST AMENDMENT PROTECTION.  THE APPELLATE COURT RESTED ITS
HOLDING ON ITS BELIEF THAT THE PUBLIC POLICY OF THE STATE OF ILLINOIS
STRONGLY FAVORED PROTECTION OF THE PRIVACY OF HOME AND FAMILY FROM
ENCROACHMENT OF THE NATURE OF PETITIONERS' ACTIVITIES.  /1/ 

IT IS ELEMENTARY, OF COURSE, THAT IN A CASE OF THIS KIND THE COURTS
DO NOT CONCERN THEMSELVES WITH THE TRUTH OR VALIDITY OF THE
PUBLICATION.  UNDER NEAR V. MINNESOTA, 283 U.S. 697 (1931), THE
INJUNCTION, SO FAR AS IT IMPOSES PRIOR RESTRAINT ON SPEECH AND
PUBLICATION, CONSTITUTES AN IMPERMISSIBLE RESTAINT ON FIRST AMENDMENT
RIGHTS.  HERE, AS IN THAT CASE, THE INJUNCTION OPERATES, NOT TO REDRESS
ALLEGED PRIVATE WRONGS, BUT TO SUPPRESS, ON THE BASIS OF PREVIOUS
PUBLICATIONS, DISTRIBUTION OF LITERATURE "OF ANY KIND" IN A CITY OF
18,000. 

THIS COURT HAS OFTEN RECOGNIZED THAT THE ACTIVITY OF PEACEFUL
PAMPHLETEERING IS A FORM OF COMMUNICATION PROTECTED BY THE FIRST
AMENDMENT.  E.G., MARTIN V. CITY OF STRUTHERS, 319 U.S. 141 (1943);
SCHNEIDER V. STATE, 308 U.S. 147 (1939); LOVELL V. GRIFFIN, 303 U.S.
444 (1938).  IN SUSTAINING THE INJUNCTION, HOWEVER, THE APPELLATE COURT
WAS APPARENTLY OF THE VIEW THAT PETITIONERS' PURPOSE IN DISTRIBUTING
THEIR LITERATURE WAS NOT TO INFORM THE PUBLIC, BUT TO "FORCE"
RESPONDENT TO SIGN A NO-SOLICITATION AGREEMENT.  THE CLAIM THAT THE
EXPRESSIONS WERE INTENDED TO EXERCISE A COERCIVE IMPACT ON RESPONDENT
DOES NOT REMOVE THEM FROM THE REACH OF THE FIRST AMENDMENT. 
PETITIONERS PLAINLY INTENDED TO INFLUENCE RESPONDENT'S CONDUCT BY THEIR
ACTIVITIES; THIS IS NOT FUNDAMENTALLY DIFFERENT FROM THE FUNCTION OF A
NEWSPAPER.  SEE SCHNEIDER V. STATE, SUPRA; THORNHILL V. ALABAMA, 310
U.S. 88 (1940).  PETITIONERS WERE ENGAGED OPENLY AND VIGOROUSLY IN
MAKING THE PUBLIC AWARE OF RESPONDENT'S REAL ESTATE PRACTICES.  THOSE
PRACTICES WERE OFFENSIVE TO THEM, AS THE VIEWS AND PRACTICES OF
PETITIONERS ARE NO DOUBT OFFENSIVE TO OTHERS.  BUT SO LONG AS THE MEANS
ARE PEACEFUL, THE COMMUNICATION NEED NOT MEET STANDARDS OF
ACCEPTABILITY. 

ANY PRIOR RESTRAINT ON EXPRESSION COMES TO THIS COURT WITH A "HEAVY
PRESUMPTION" AGAINST ITS CONSTITUTIONAL VALIDITY.  CARROLL V. PRINCESS
ANNE, 393 U.S. 175, 181 (1968); BANTAM BOOKS, INC. V. SULLIVAN, 372
U.S. 58, 70 (1963).  RESPONDENT THUS CARRIES A HEAVY BURDEN OF SHOWING
JUSTIFICATION FOR THE IMPOSITION OF SUCH A RESTRAINT.  HE HAS NOT MET
THAT BURDEN.  NO PRIOR DECISIONS SUPPORT THE CLAIM THAT THE INTEREST OF
AN INDIVIDUAL IN BEING FREE FROM PUBLIC CRITICISM OF HIS BUSINESS
PRACTICES IN PAMPHLETS OR LEAFLETS WARRANTS USE OF THE INJUNCTIVE POWER
OF A COURT.  DESIGNATING THE CONDUCT AS AN INVASION OF PRIVACY, THE
APPARENT BASIS FOR THE INJUNCTION HERE, IS NOT SUFFICIENT TO SUPPORT AN
INJUNCTION AGAINST PEACEFUL DISTRIBUTION OF INFORMATIONAL LITERATURE OF
THE NATURE REVEALED BY THIS RECORD.  ROWAN V. UNITED STATES POST OFFICE
DEPT., 397 U.S. 728 (1970), RELIED ON BY RESPONDENT, IS NOT IN POINT;
THE RIGHT OF PRIVACY INVOLVED IN THAT CASE IS NOT SHOWN HERE.  AMONG
OTHER IMPORTANT DISTINCTIONS, RESPONDENT IS NOT ATTEMPTING TO STOP THE
FLOW OF INFORMATION INTO HIS OWN HOUSEHOLD, BUT TO THE PUBLIC. 
ACCORDINGLY, THE INJUNCTION ISSUED BY THE ILLINOIS COURT MUST BE
VACATED. 

              REVERSED. 

/1/  THE INJUNCTION IS TERMED A "TEMPORARY" INJUNCTION BY THE
ILLINOIS COURTS.  WE HAVE THEREFORE CONSIDERED WHETHER WE MAY PROPERLY
DECIDE THIS CASE.  28 U.S.C. 1257.  WE SEE NOTHING IN THE RECORD THAT
WOULD INDICATE THAT THE ILLINOIS COURTS APPLIED A LESS RIGOROUS
STANDARD IN ISSUING AND SUSTAINING THIS INJUNCTION THAN THEY WOULD WITH
ANY PERMANENT INJUNCTION IN THE CASE.  NOR IS THERE ANY INDICATION THAT
THE INJUNCTION RESTS ON A DISPUTED QUESTION OF FACT THAT MIGHT BE
RESOLVED DIFFERENTLY UPON FURTHER HEARING.  INDEED, OUR READING OF THE
RECORD LEADS TO THE CONCLUSION THAT THE ISSUANCE OF A PERMANENT
INJUNCTION UPON TERMINATION OF THESE PROCEEDINGS WILL BE LITTLE MORE
THAN A FORMALITY.  MOREOVER, THE TEMPORARY INJUNCTION HERE, WHICH HAS
BEEN IN EFFECT FOR OVER THREE YEARS, HAS ALREADY HAD MARKED IMPACT ON
PETITIONERS' FIRST AMENDMENT RIGHTS.  ALTHOUGH THE RECORD IN THIS CASE
IS NOT SUCH AS TO LEAVE THE MATTER ENTIRELY FREE FROM DOUBT WE CONCLUDE
WE ARE NOT WITHOUT POWER TO DECIDE THIS CASE.  MILLS V. ALABAMA, 384
U.S. 214 (1966); CONSTRUCTION LABORERS' LOCAL 438 V. CURRY, 371 U.S.
542 (1963). 

MR. JUSTICE HARLAN, DISSENTING. 

IN DECIDING THIS CASE ON THE MERITS, THE COURT, IN MY OPINION,
DISREGARDS THE EXPRESS LIMITATION OF OUR APPELLATE JURISDICTION TO
"(FINAL JUDGMENTS OR DECREES," 28 U.S.C. 1257, AND DOES SO IN A WAY
WHICH UNDERMINES THE POLICIES BEHIND LIMITING OUR REVIEW TO JUDGMENTS
"RENDERED BY THE HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE
HAD," IBID., AND INTERFERES WITH ILLINOIS' ARRANGEMENTS FOR THE
EXPEDITIOUS PROCESSING OF LITIGATION IN ITS OWN STATE COURTS. 

IT IS PLAIN, AND ADMITTED BY ALL, THAT THE "TEMPORARY" OR
"PRELIMINARY" INJUNCTION ENTERED BY THE CIRCUIT COURT OF COOK COUNTY
AND AFFIRMED BY THE APPEALLATE COURT, FIRST DISTRICT, IS NOT A FINAL
JUDGMENT.  REVIEW OF PRELIMINARY INJUNCTIONS IS A CLASSIC FORM OF
INTERLOCUTORY APPEAL, WHICH CONGRESS HAS AUTHORIZED IN LIMITED
INSTANCES NOT INCLUDING REVIEW BY THIS COURT OF STATE DECREES.  SEE 28
U.S.C. 1252, 1253; CF. 28 U.S.C. 1292(A)(1).  DESPITE THE SEEMINGLY
ABSOLUTE PROVISION OF THE STATUTE, THE COURT HOLDS THAT THIS CASE IS
WITHIN THE JUDICIALLY CREATED EXCEPTION FOR INSTANCES IN WHICH THE
AFFIRMANCE OF THE INTERLOCUTORY ORDER BY THE HIGHEST STATE COURT
DECIDES THE MERITS OF THE DISPUTE FOR ALL PRACTICAL PURPOSES, LEAVING
THE REMAINING PROCEEDINGS IN THE LOWER COURTS AS NOTHING MORE THAN A
FORMALITY.  SEE POPE V. ATLANTIC COAST LINE R. CO., 345 U.S. 379, 382
(1953); CONSTRUCTION LABORERS' LOCAL 438 V. CURRY, 371 U.S. 371 U.S.
542, 550-551 (1963); MILLS V. ALABAMA, 384 U.S. 214, 217-218 (1966). 
THE APPARENT, THOUGH UNSTATED, JUSTIFICATION FOR THIS IS THE
PETITIONERS'  REPRESENTATIVE IN THIS COURT THAT THEY HAVE NO DEFENSE TO
OFFER OTHER THAN THEIR FIRST AMENDMENT CONTENTIONS, WHICH THEY ASSERT
THE ILLINOIS COURTS HAVE DECIDED AGAINST THEM ON THE MERITS.  PET. FOR
CERT. 6. 

EVEN ASSUMING THAT THE LATTER POSITION IS CORRECT, /1/  THIS CASE
DOES NOT FIT INTO THE MOLD OF THE CASES IN WHICH THIS COURT HAS
REVIEWED ORDERS OF STATE SUPREME COURTS AFFIRMING THE GRANT OF
PRELIMINARY RELIEF, FOR HERE THE ILLINOIS SUPREME COURT HAS NEVER
PASSED ON THE MERITS OF PETITIONERS' CONSTITUTIONAL CONTENTIONS.  IF
THIS CASE WERE PERMITTED TO RETURN TO THE TRIAL COURT FOR CONSIDERATION
OF THE MERITS OF PETITIONERS' CONTENTIONS AND THE ENTRY OF FINAL
JUDGMENT, PETITIONERS WOULD HAVE AN APPEAL AS OF RIGHT DIRECTLY TO THE
ILLINOIS SUPREME COURT IF THAT JUDGMENT WERE ADVERSE TO THEM.  ILL.
CONST., ART. 6, SEC. 5; ILL. SUP. CT. RULES 301, 302(A).  THAT COURT
WOULD THEN HAVE AN OPPORTUNITY TO CORRECT THE ERRORS, IF ANY, IN THE
LOWER COURT JUDGMENT; OR IF IT FAILED TO DO SO WE WOULD HAVE THE
BENEFIT OF THAT COURT'S VIEWS ON THE ISSUES HERE PRESENTED.  SUCH
REVIEW BY "THE HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE
HAD" IS PARTICULARLY IMPORTANT IN THE CONTEXT OF ILLINOIS PROCEDURE,
WHICH PLACES PRIMARY RESPONSIBILITY FOR REVIEW OF CONSTITUTIONAL
CONTENTIONS IN THE STATES SUPREME COURT.  ALL APPEALS FROM FINAL
JUDGMENTS IN CASES INVOLVING A CONSTITUTIONAL QUESTION MUST BE TAKEN
DIRECTLY TO THAT COURT, SEE ILL. SUP. CT. RULE 302(A)(2); CONSEQUENTLY
THE INTERMEDIATE APPELLATE COURT RARELY HAS OCCASION TO ENGAGE IN
CONSTITUTIONAL ADJUDICATION. 

TO BE SURE, THE ILLINOIS SUPREME COURT, BY DENYING PETITIONERS'
MOTION FOR LEAVE TO APPEAL FROM THE ORDER OF THE APPELLATE COURT, HAD
AN OPPORTUNITY TO RULE ON THE ISSUE PRESENTED BY THIS CASE AND DECLINED
TO DO SO.  HOWEVER, ILLINOIS HAS A STRONG POLICY AGAINST SUPREME COURT
REVIEW OF INTERLOCUTORY ORDERS.  UNTIL RECENTLY THE SUPREME COURT HAD
NO DIRECT APPELLATE JURISDICTION OVER JUDGMENTS OF THE APPELLATE COURT
ON INTERLOCUTORY APPEALS, BUT SIMPLY REVIEWED THE ISSUES PRESENTED BY
THE SUBSEQUENT FINAL JUDGMENT.  6 C.NICHOLS, ILLINOIS CIVIL PRACTICE
5998 (1962 REV. VOL. H. WILLIAMS & M. WINGERSKY).  ALTHOUGH
INTERLOCUTORY REVIEW IS NOW AVAILABLE IN THE DISCRETION OF THE SUPREME
COURT, IT IS "NOT FAVORED."  ILL. SUP. CT. RULE 318(B); SEE ALSO ILL.
SUP. CT. RULE 315(A).  WE HAVE OURSELVES OFTEN MADE A SIMILAR
RESOLUTION OF THE COMPETING INTERESTS IN PROMPT CORRECTION OF LOWER
COURTS' ERRORS ON THE ONE HAND AND IN EXPEDITIOUS PROCESSING OF
LITIGATION TO FINAL JUDGMENT ON THE OTHER.  SEE R. STERN & E. GRESSMAN,
SUPREME COURT PRACTICE SEC. 4.19 (4TH ED. 1969).  UNDER TODAY'S
DECISION, ILLINOIS WILL HAVE TO SURRENDER ITS JUDGMENT IN THESE MATTERS
IF IT DESIRES TO INTERPOSE THE STATE SUPREME COURT BETWEEN THE
SUBORDINATE STATE COURTS AND REVIEW BY THIS COURT, AS THE HIGHEST-STATE
COURT REQUIREMENT PERMITS IT TO DO.  IF THIS COURT WOULD RESPECT THE
FINAL-JUDGMENT LIMITATION ON OUR JURISDICTION, ILLINOIS WOULD NOT BE
PUT TO THIS CHOICE.     IT IS, OF COURSE, TEMPTING TO IGNORE THE PROPER
LIMITATIONS ON OUR POWER WHEN THE ALTERNATIVE IS TO DELAY CORRECTION OF
WHAT THE COURT TODAY HOLDS WAS A FLAGRANT ERROR BY LOWER COURTS.  THIS
IS PARTICULARLY TRUE WHERE, AS HERE, A "TEMPORARY" INJUNCTION HAS BEEN
OUTSTANDING FOR A LENGTHY PERIOD.  BUT THE QUESTION IS NOT WHETHER WE
THINK OUR INTERVENTION IN THE DISPUTE AT THIS STAGE WOULD BE DESIRABLE-
ALTHOUGH WITH OUR OVERALL DOCKET RUNNING AT ABOUT 4,000 CASES A TERM
THERE IS SURELY MUCH TO BE SAID FOR GIVING EACH LITIGANT ONLY ONE BITE
AT THE APPLE.  THE POLICY JUDGMENT INVOLVED WAS EXPRESSLY COMMITTED TO
CONGRESS BY ART. III, SEC. 2, OF THE CONSTITUTION, AND CONGRESS HAS
SPOKEN IN SEC. 1257. 

I WOULD RESPECT THAT CONGRESSIONAL JUDGMENT AND DISMISS THE WRIT FOR
LACK OF JURISDICTION. 

/1/  SETTLED ILLINOIS LAW PROVIDES THAT "(IT IS NOT, OF COURSE, THE
PURPOSE OF A TEMPORARY INJUNCTION TO DECIDE CONTROVERTED FACTS OR THE
MERITS OF THE CASE," LONERGAN V. CRUCIBLE STEEL CO. OF AMERICA, 37
ILL.2D 599, 611, 229 N.E.2D 536, 542 (1967), BUT "MERELY TO PRESERVE
THE LAST ACTUAL PEACEABLE UNCONTESTED STATUS WHICH PRECEDED THE PENDING
SUIT."  CONSUMERS DIGEST, INC. V. CONSUMER MAGAZINE, INC., 92
ILL.APP.2D 54, 61, 235 N.E.2D 421, 425 (APP. CT., 1ST DIST., 1968). 
"IT IS ENOUGH IF (THE APPLICANT) CAN SHOW THAT HE RAISES A FAIR
QUESTION AS TO THE EXISTENCE OF THE RIGHT WHICH HE CLAIMS AND CAN
SATISFY THE COURT THAT MATTERS SHOULD BE PRESERVED IN THEIR PRESENT
STATE UNTIL SUCH QUESTIONS CAN BE DISPOSED OF."  NESTOR JOHNSON MFG.
CO. V. GOLDBLATT, 371 ILL. 570, 574, 21 N.E.2D 723, 725 (1939).  THE
GRANTING OF A PRELIMINARY INJUNCTION IS COMMITTED TO THE SOUND
DISCRETION OF THE TRIAL JUDGE, AND IT IS REVIEWABLE ONLY FOR ABUSE OF
DISCRETION.  LONEGAN V. CRUCIBLE STEEL CO. OF AMERICA, SUPRA, AT 612,
229 N.E.2D, AT 542. 

IN ARGUMENT BEFORE THE ILLINOIS CHANCELLOR, PETITIONERS' ATTORNEY
STATED: 

"WE DON'T WISH TO GO INTO LENGTHY ARGUMENT ON CONSTITUTIONAL
PROVISIONS AT THIS TIME.  WE FEEL THAT IT IS ONLY FAIR THAT BOTH SIDES
PREPARE BRIEFS IN PREPARATION FOR A FULL HEARING ON THE PERMANENT
INJUNCTION.  AND, TO THAT END, WE JUST WANT TO POINT OUT THAT THESE ARE
CONSTITUTIONAL QUESTIONS, ON WHICH WE FEEL THE LAW IS ABUNDANTLY CLEAR,
AND THAT IS A FURTHER REASON WHY YOUR HONOR IN HIS DISCRETION, SHOULD
NOT SEE FIT TO ISSUE A TEMPORARY INJUNCTION."  R. 56. 

DAVID C. LONG ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WAS WILLARD J. LASSERS. 

THOMAS W. MCNAMARA ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS JOHN C. TUCKER. 
..END :












CALIFORNIA V. BYERS, 402 U.S. 424 


       CALIFORNIA V. BYERS

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

        NO. 75.  ARGUED DECEMBER 8, 1970-- DECIDED MAY 17, 1971 


RESPONDENT DEMURRED TO A COUNT OF AN INDICTMENT CHARGING HIM WITH
VIOLATING CAL. VEHICLE CODE SEC. 20002(A)(1) (SUPP. 1971) BY FAILING TO
STOP AND FURNISH HIS NAME AND ADDRESS AFTER INVOLVEMENT IN AN
AUTOMOBILE ACCIDENT, RESULTING IN DAMAGE TO PROPERTY, ON THE GROUND
THAT COMPLIANCE WOULD HAVE VIOLATED HIS PRIVILEGE AGAINST SELF
INCRIMINATION.  HIS DEMURRER WAS SUSTAINED BY THE CALIFORNIA SUPREME
COURT, WHICH HELD THAT COMPLIANCE CONFRONTED RESPONDENT WITH
"SUBSTANTIAL HAZARDS OF SELF-INCRIMINATION," BUT UPHELD THE STATUTE BY
INSERTING A USE RESTRICTION ON THE INFORMATION DISCLOSED.  THAT COURT
CONCLUDED THAT IT WOULD BE UNFAIR TO PUNISH RESPONDENT SINCE HE COULD
NOT REASONABLY HAVE ANTICIPATED THE USE RESTRICTION.  HELD:  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED.  PP. 427-458. 

71 CAL.2D 1039, 458 P.2D 465, VACATED AND REMANDED. 

THE CHIEF JUSTICE, JOINED BY MR. JUSTICE STEWART, MR. JUSTICE WHITE,
AND MR. JUSTICE BLACKMUN, CONCLUDED THAT: 

1.  COMPLIANCE WITH THIS ESSENTIALLY REGULATORY AND NONCRIMINAL
STATUTE, WHERE SELF-REPORTING IS INDISPENSABLE TO ITS FULFILLMENT,
WHERE THE BURDEN IS ON "THE PUBLIC AT LARGE," AS DISTINGUISHED FROM A
"HIGHLY SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES," AND
HWERE THE POSSIBILITY OF INCRIMINATION IS NOT SUBSTANTIAL, DOES NOT
INFRINGE THE PRIVILEGE AGAINST SELF-INCRIMINATION.  PP. 427-431. 

2.  EVEN ASSUMING THAT THE STATUTORY REQUIREMENT OF THE ESSENTIALLY
NEUTRAL ACT OF DISCLOSING NAME AND ADDRESS IS INCRIMINATING IN THE
TRADITIONAL SENSE, IT WOULD BE AN EXTRAVAGANT EXTENSION OF THE
PRIVILEGE TO HOLD THAT IT IS TESTIMONIAL IN THE FIFTH AMENDMENT SENSE. 
JUST AS THERE IS NO CONSTITUTIONAL RIGHT TO REFUSE TO FILE AN INCOME
TAX RETURN, THERE IS NO CONSTITUTIONAL RIGHT TO FLEE THE SCENE OF AN
ACCIDENT TO AVOID ANY POSSIBLE LEGAL INVOLVEMENT.  PP. 431-434. 

MR. JUSTICE HARLAN CONCLUDED THAT THE PRESENCE, FROM THE
INDIVIDUAL'S POINT OF VIEW, OF A "REAL" AND NOT "IMAGINARY" RISK OF
SELF-INCRIMINATION IS NOT A SUFFICIENT PREDICATE FOR EXTENSION OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION TO REGULATORY SCHEMES OF THE
CHARACTER INVOLVED IN THIS CASE.  CONSIDERING THE NONCRIMINAL
GOVERNMENTAL PURPOSE OF SECURING THE INFORMATION (TO ENSURE FINANCIAL
RESPONSIBILITY FOR ACCIDENTS), THE NECESSITY FOR SELF-REPORTING AS A
MEANS OF SECURING THE INFORMATION, AND THE LIMITED NATURE OF THE
REQUIRED DISCLOSURES WHICH LEAVES THE "ACCUSATORIAL" BURDEN UPON THE
STATE, THE PURPOSES OF THE FIFTH AMENDMENT DO NOT WARRANT A USE
RESTRICTION AS A CONDITION OF ENFORCEMENT OF THE STATUTE.  PP. 434
458. 

BURGER, C.J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION, IN WHICH STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  HARLAN,
J., FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 434.  BLACK,
J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN, JJ.,
JOINED, POST, P. 459.  BRENNAN, J., FILED A DISSENTING OPINION, IN
WHICH DOUGLAS AND MARSHALL, JJ., JOINED, POST, P. 464. 

MR. CHIEF JUSTICE BURGER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE STEWART, MR. JUSTICE WHITE, AND MR.
JUSTICE BLACKMUN JOIN. 

THIS CASE PRESENTS THE NARROW BUT IMPORTANT QUESTION OF WHETHER THE
CONSTITUTIONAL PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION IS
INFRINGED BY CALIFORNIA'S SO-CALLED "HIT AND RUN" STATUTE WHICH
REQUIRES THE DRIVER OF A MOTOR VEHICLE INVOLVED IN AN ACCIDENT TO STOP
AT THE SCENE AND GIVE HIS NAME AND ADDRESS.  SIMILAR "HIT AND RUN" OR
"STOP AND REPORT" STATUTES ARE IN EFFECT IN ALL 50 STATES AND THE
DISTRICT OF COLUMBIA. 

ON AUGUST 22, 1966, RESPONDENT BYERS WAS CHARGED IN A TWO-COUNT
CRIMINAL COMPLAINT WITH TWO MISDEMEANOR VIOLATIONS OF THE CALIFORNIA
VEHICLE CODE.  COUNT 1 CHARGED THAT ON AUGUST 20 BYERS PASSED ANOTHER
VEHICLE WITHOUT MAINTAINING THE "SAFE DISTANCE" REQUIRED BY SEC. 21750
(SUPP. 1971).  THE SECOND COUNT CHARGED THAT BYERS HAD BEEN INVOLVED IN
AN ACCIDENT BUT HAD FAILED TO STOP AND IDENTIFY HIMSELF AS REQUIRED BY
SEC. 20002(A)(1) (SUPP. 1971). 

THIS STATUTE PROVIDES:  /1/ 

     "THE DRIVER OF ANY VEHICLE INVOLVED IN AN ACCIDENT RESULTING
IN

  DAMAGE TO ANY PROPERTY INCLUDING VEHICLES SHALL IMMEDIATELY STOP

  THE VEHICLE AT THE SCENE OF THE ACCIDENT AND SHALL THEN AND THERE

  . . . (LOCATE AND NOTIFY THE OWNER OR PERSON IN CHARGE OF SUCH

  PROPERTY OF THE NAME AND ADDRESS OF THE DRIVER AND OWNER OF THE

  VEHICLE INVOLVED.  . . ." 

IT IS STIPULATED THAT BOTH CHARGES AROSE OUT OF THE SAME ACCIDENT. 

BYERS DEMURRED TO COUNT 2 ON THE GROUND THAT IT VIOLATED HIS
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION.  HIS POSITION WAS
ULTIMATELY SUSTAINED BY THE CALIFORNIA SUPREME COURT.  /2/  THAT COURT
HELD THAT THE PRIVILEGE PROTECTED A DRIVER WHO "REASONABLY BELIEVES
THAT COMPLIANCE WITH THE STATUTE WILL RESULT IN SELF-INCRIMINATION." 
71 CAL.2D 1039, 1047, 458 P.2D 465, 471 (1969).  HERE THE COURT FOUND
THAT BYERS' APPREHENSIONS WERE REASONABLE BECAUSE COMPLIANCE WITH SEC.
20002(A)(1) CONFRONTED HIM WITH "SUBSTANTIAL HAZARDS OF SELF
INCRIMINATION."  NEVERTHELESS THE COURT UPHELD THE VALIDITY OF THE
STATUTE BY INSERTING A JUDICIALLY CREATED USE RESTRICTION ON THE
DISCLOSURES THAT IT REQUIRED.  THE COURT CONCLUDED, HOWEVER, THAT IT
WOULD BE "UNFAIR" TO PUNISH BYER FOR HIS FAILURE TO COMPLY WITH THE
STATUTE BECAUSE HE COULD NOT REASONABLY HAVE ANTICIPATED THE JUDICIAL
PROMULGATION OF THE USE RESTRICTION.  /3/  WE GRANTED CERTIORARI TO
ASSESS THE VALIDITY OF THE CALIFORNIA SUPREME COURT'S PREMISE THAT
WITHOUT A USE RESTRICTION SEC. 20002(A)(1) WOULD VIOLATE THE PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION.  WE CONCLUDE THAT THERE IS NO
CONFLICT BETWEEN THE STATUTE AND THE PRIVILEGE. 

        (1) 

WHENEVER THE COURT IS CONFRONTED WITH THE QUESTION OF A COMPELLED
DISCLOSURE THAT HAS AN INCRIMINATING POTENTIAL, THE JUDICIAL SCRUTINY
IS INVARIABLY A CLOSE ONE.  TENSION BETWEEN THE STATE'S DEMAND FOR
DISCLOSURES AND THE PROTECTION OF THE RIGHT AGAINST SELF-INCRIMINATION
IS LIKELY TO GIVE RISE TO SERIOUS QUESTIONS.  INEVITABLY THESE MUST BE
RESOLBED IN TERMS OF BALANCING THE PUBLIC NEED ON THE ONE HAND, AND THE
INDIVIDUAL CLAIM TO CONSTITUTIONAL PROTECTIONS ON THE OTHER; NEITHER
INTEREST CAN BE TREATED LIGHTLY. 

AN ORGANIZED SOCIETY IMPOSES MANY BURDENS ON ITS CONSTITUENTS.  IT
COMMANDS THE FILING OF TAX RETURNS FOR INCOME; IT REQUIRES PRODUCERS
AND DISTRIBUTORS OF CONSUMER GOODS TO FILE INFORMATIONAL REPORTS ON THE
MANUFACTURING PROCESS AND THE CONTENT TO PRODUCTS, ON THE WAGES, HOURS,
AND WORKING CONDITIONS OF EMPLOYEES.  THOSE WHO BORROW MONEY ON THE
PUBLIC MARKET OR ISSUE SECURITIES FOR SALE TO THE PUBLIC MUST FILE
VARIOUS INFORMATION REPORTS; INDUSTRIES MUST REPORT PERIODICALLY THE
VOLUME AND CONTENT OF POLLUTANTS DISCHARGED INTO OUR WATERS AND
ATMOSPHERE.  COMPARABLE EXAMPLES ARE LEGION.  /4/ 

IN EACH OF THESE SITUATIONS THERE IS SOME POSSIBILITY OF PROSECUTION
- OFTEN A VERY REAL ONE-- FOR CRIMINAL OFFENSES DISCLOSED BY OR
DERIVING FROM THE INFORMATION THAT THE LAW COMPELS A PERSON TO SUPPLY. 
INFORMATION REVEALED BY THESE REPORTS COULD WELL BE "A LINK IN THE
CHAIN" OF EVIDENCE LEADING TO PROSECUTION AND CONVICTION.  BUT UNDER
OUR HOLDINGS THE MERE POSSIBILITY OF INCRIMINATION IS INSUFFICIENT TO
DEFEAT THE STRONG POLICIES IN FAVOR OF A DISCLOSURE CALLED FOR BY
STATUTES LIKE THE ONE CHALLENGED HERE. 

UNITED STATES V. SULLIVAN, 274 U.S. 259 (1927), SHOWS THAT AN
APPLICATION OF THE PRIVILEGE TO THE CALIFORNIA STATUTE IS NOT
WARRANTED.  THERE A BOOTLEGGER WAS PROSECUTED FOR FAILURE TO FILE AN
INCOME TAX RETURN.  HE CLAIMED THAT THE PRIVILEGE AGAINST COMPULSORY
SELF-INCRIMINATION AFFORED HIM A COMPLETE DEFENSE BECAUSE FILING A
RETURN WOULD HAVE TENDED TO INCRIMINATE HIM BY REVEALING THE UNLAWFUL
SOURCE OF HIS INCOMRE.  SPEAKING FOR THE COURT, MR. JUSTICE HOLMES
REJECTED THIS CLAIM ON THE GROUND THAT IT AMOUNTED TO "AN EXTREME IF
NOT AN EXTRAVAGANT APPLICATION OF THE FIFTH AMENDMENT."  ID., AT 263
264.  /5/  SULLIVAN'S TAX RETURN, OF COURSE, INCREASED HIS RISK OF
PROSECUTION AND CONVICTION FOR VIOLATION OF THE NATIONAL PROHIBITION
ACT.  BUT THE COURT HAD NO DIFFICULTY IN CONCLUDING THAT AN EXTENSION
OF THE PRIVILEGE TO COVER THAT KIND OF MANDATORY REPORT WOULD HAVE BEEN
UNJUSTIFIED.  IN ORDER TO INVOKE THE PRIVILEGE IT IS NECESSARY TO SHOW
THAT THE COMPELLED DISCLOSURES WILL THEMSELVES CONFRONT THE CLAIMANT
WITH "SUBSTANTIAL HAZARDS OF SELF-INCRIMINATION." 

THE COMPONENTS OF THIS REQUIREMENT WERE ARTICULATED IN ALBERTSON V.
SACB, 382 U.S. 70 (1965), AND LATER IN MARCHETTI V. UNITED STATES, 390
U.S. 39 (1968), GROSSO V. UNITED STATES, 390 U.S. 62 (1968), AND HAYNES
V. UNITED STATES, 390 U.S. 85 (1968).  IN ALBERTSON THE COURT HELD THAT
AN ORDER REQUIRING REGISTRATION BY INDIVIDUAL MEMBERS OF A COMMUNIST
ORGANIZATION VIOLATED THE PRIVILEGE.  THERE SULLIVAN WAS
DISTINUGISHED: 

"IN SULLIVAN THE QUESTIONS IN THE INCOME TAX RETURN WERE NEUTRAL ON
THEIR FACE AND DIRECTED AT THE PUBLIC AT LARGE, BUT HERE THEY ARE
DIRECTED AT A HIGHLY SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL
ACTIVITIES.  PETITIONERS' CLAIMS ARE NOT ASSERTED IN AN ESSENTIALLY
NONCRIMINAL AND REGULATORY AREA OF INQUIRY, BUT AGAINST AN INQUIRY IN
AN AREA PERMEATED WITH CRIMINAL STATUTES, WHERE RESPONSE TO ANY OF THE
. . . QUESTIONS IN CONTEXT MIGHT INVOLVE THE PETITIONERS IN THE
ADMISSION OF A CRUCIAL ELEMENT OF A CRIME."  382 U.S.,AT 79.  ALBERTSON
WAS FOLLOWED BY MARCHETTI AND GROSSO WHERE THE COURT HELD THAT THE
PRIVILEGE AFFORDED A COMPLETE DEFENSE TO PROSECUTIONS FOR NONCOMPLIANCE
WITH FEDERAL GAMBLING TAX AND REGISTRATION REQUIREMENTS.  IT WAS ALSO
FOLLOWED IN HAYNES WHERE PETITIONER HAD BEEN PROSECUTED FOR FAILURE TO
REGISTER A FIREARM AS REQUIRED BY FEDERAL STATUTE.  IN EACH OF THESE
CASES THE COURT FOUND THAT COMPLIANCE WITH THE STATUTORY DISCLOSURE
REQUIREMENTS WOULD CONFRONT THE PETITIONER WITH "SUBSTANTIAL HAZARDS OF
SELF-INCRIMINATION."  E.G., MARCHETTI V. UNITED STATES, 390 U.S.,AT
61. 

IN ALL OF THESE CASES THE DISCLOSURES CONDEMNED WERE ONLY THOSE
EXTRACTED FROM A "HIGHLY SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL
ACTIVITIES" AND THE PRIVILEGE WAS APPLIED ONLY IN "AN ESSENTIALLY
NONCRIMINAL AND REGULATORY AREA OF INQUIRY."  E.G., ALBERTSON V. SACB,
382 U.S.,AT 79; MARCHETTI V. UNITED STATES, 390 U.S.,AT 47. 

ALTHOUGH THE CALIFORNIA VEHICLE CODE DEFINES SOME CRIMINAL OFFENSES,
THE STATUTE IS ESSENTIALLY REGULATORY, NOT CRIMINAL.  THE CALIFORNIA
SUPREME COURT NOTED THAT SEC. 20002(A)(1) WAS NOT INTENDED TO
FACILITATE CRIMINAL CONVICTIONS BUT TO PROMOTE THE SATISFACTION OF
CIVIL LIABILITIES ARISING FROM AUTOMOBILE ACCIDENTS.  IN MARCHETTI THE
COURT RESTED ON THE REALITY THAT ALMOST EVERYTHING CONNECTED WITH
GAMBLING IS ILLEGAL UNDER "COMPREHENSIVE" STATE AND FEDERAL STATUTORY
SCHEMES.  THE COURT NOTED THAT IN ALMOST EVERY CONCEIVABLE SITUATION
COMPLIANCE WITH THE STATUTORY GAMBLING REQUIREMENTS WOULD HAVE BEEN
INCRIMINATING.  LARGELY BECAUSE OF THESE PERVASIVE CRIMINAL
PROHIBITIONS, GAMBLERS WERE CONSIDERED BY THE COURT TO BE "A HIGHLY
SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES." 

IN CONTRAST, SEC. 20002(A)(1), LIKE INCOME TAX LAWS, IS DIRECTED AT
ALL PERSONS-- HERE ALL PERSONS WHO DRIVE AUTOMOBILES IN CALIFORNIA. 
THIS GROUP, NUMBERING AS IT DOES IN THE MILLIONS, IS SO LARGE AS TO
RENDER SEC. 20002(A)(1) A STATUTE "DIRECTED AT THE PUBLIC AT LARGE." 
ALBERTSON V. SACB, 382 U.S.,AT 79, CONSTRUING UNITED STATES V.
SULLIVAN, 274 U.S. 259 (1927).  IT IS DIFFICULT TO CONSIDER THIS GROUP
AS EITHER "HIGHLY SELECTIVE" OR "INHERENTLY SUSPECT OF CRIMINAL
ACTIVITIES."  DRIVING AN AUTOMOBILE, UNLIKE GAMBLING, IS A LAWFUL
ACTIVITY.  MOREOVER, IT IS NOT A CRIMINAL OFFENSE UNDER CALIFORNIA LAW
TO BE A DRIVER "INVOLVED IN AN ACCIDENT."  AN ACCIDENT MAY BE THE FAULT
OF OTHERS; IT MAY OCCUR WITHOUT ANY DRIVER HAVING BEEN AT FAULT.  NO
EMPIRICAL DATA ARD SUGGESTED IN SUPPORT OF THE CONCLUSION THAT THERE IS
A RELEVANT CORRELATION BETWEEN BEING A DRIVER AND CRIMINAL PROSECUTION
OF DRIVERS.  SO FAR AS ANY AVAILABLE INFORMATION INSTRUCTS US, MOST
ACCIDENTS OCCUR WITHOUT CREATING CRIMINAL LIABILITY EVEN IF ONE OR BOTH
OF THE DRIVERS ARE GUILTY OF NEGLIGENCE AS A MATTER OF TORT LAW. 

THE DISCLOSURE OF INHERENTLY ILLEGAL ACTIVITY IS INHERENTLY RISKY. 
OUR DECISIONS IN ALBERTSON AND THE CASES FOLLOWING ILLUSTRATE THAT
TRUISM.  BUT DISCLOSURES WITH RESPECT TO AUTOMOBILE ACCIDENTS SIMPLY DO
NOT ENTAIL THE KIND OF SUBSTANTIAL RISK OF SELF-INCRIMINATION INVOLVED
IN MARCHETTI, GROSSO, AND HAYNES.  FURTHERMORE, THE STATUTORY PURPOSE
IS NONCRIMINAL AND SELF-REPORTING IS INDISPENSABLE TO IS FULFILLMENT. 

        (2) 

EVEN IF WE WERE TO VIEW THE STATUTORY REPORTING REQUIREMENT AS
INCRIMINATING IN THE TRADITIONAL SENSE, IN OUR VIEW IT WOULD BE THE
"EXTRAVAGANT" EXTENSION OF THE PRIVILEGE JUSTICE HOLMES WARNED AGAINST
TO HOLD THAT IT IS TESTIMONIAL IN THE FIFTH AMENDMENT SENSE. 
COMPLIANCE WITH SEC. 20002(A)(1) REQUIRES TWO THINGS:  FIRST, A DRIVER
INVOLVED IN AN ACCIDENT IS REQUIRED TO STOP AT THE SCENE; SECOND, HE IS
REQUIRED TO GIVE HIS NAME AND ADDRESS.  THE ACT OF STOPPING IS NO MORE
TESTIMONIAL-- INDEED LESS SO IN SOME RESPECTS-- THAN REQUIRING A PERSON
IN CUSTODY TO STAND OR WALK IN A POLICE LINEUP, TO SPEAK PRESCRIBED
WORDS, OR TO GIVE SAMPLES OF HANDWRITING, FINGERPRINTS, OR BLOOD. 
UNITED STATES V. WADE, 388 U.S. 218, 221-223 (1967); SCHMERBER V.
CALIFORNIA, 384 U.S. 757, 764 AND N. 8 (1966); 8 J.WIGMORE, EVIDENCE
2265, PP. 386-400 (MCNAUGHTON REV. 1961).  DISCLOSURE OF NAME AND
ADDRESS IS AN ESSENTIALLY NEUTRAL ACT.  WHATEVER THE COLLATERAL
CONSEQUENCES OF DISCLOSING NAME AND ADDRESS, THE STATUTORY PURPOSE IS
TO IMPLEMENT THE STATE POLICE POWER TO REGULATE USE OF MOTOR VEHICLES. 

ACCIDENT "SHALL IMMEDIATELY STOP THE VEHICLE AT THE SCENE OF THE
ACCIDENT.  . . ."  IT IS, OF COURSE, POSSIBLE THAT COMPLIANCE WITH THIS
REQUIREMENT MIGHT ULTIMATELY LEAD TO PROSECUTION FOR SOME
CONTEMPORANEOUS CRIMINAL VIOLATION OF THE MOTOR VEHICLE CODE IF ONE
OCCURRED, OR AN UNRELATED OFFENSE, ALWAYS PROVIDED SUCH OFFENSE COULD
BE ESTABLISHED BY INDEPENDENT EVIDENCE.  IN THAT SENSE IT MIGHT FURNISH
THE AUTHORITIES WITH WHAT MIGHT BE CALLED "A LINK IN THE CHAIN OF
EVIDENCE NEEDED TO PROSECUTE.  . . ."  HOFFMAN V. UNITED STATES, 341
U.S. 479, 486 (1951).  IN SCHMERBER V. CALIFORNIA, SUPRA, AT 764, THE
COURT HELD THAT "THE PRIVILEGE IS A BAR AGAINST COMPELLING
'COMMUNICATIONS' OR 'TESTIMONY,' BUT . . . COMPULSION WHICH MAKES A
SUSPECT OR ACCUSED THE SOURCE OF 'REAL OR PHYSICAL EVIDENCE' DOES NOT
VIOLATE IT."  THERE THE PETITIONER HAD BEEN COMPELLED TO UNDERGO THE
FORCIBLE WITHDRAWAL OF BLOOD SAMPLES FOR ALCOHOL CONTENT ANALYSIS, AND
THE COURT SUSTAINED THIS PROCEDURE OVER PETITIONER'S CLAIM THAT HE HAD
BEEN COMPELLED TO FURNISH EVIDENCE AGAINST HIMSELF.  SEE ALSO HOLT V.
UNITED STATES, 218 U.S. 245, 252 (1910) (HOLMES, J.)  (REQUIRING
DEFENDANT TO MODEL A BLOUSE WOULD BE BARRED ONLY BY "AN EXTRAVAGANT
EXTENSION OF THE FIFTH AMENDMENT"). 

STOPPING IN COMPLIANCE WITH SEC. 20002(A)(1) THEREFORE DOES NOT
PROVIDE THE STATE WITH "EVIDENCE OF A TESTIMONIAL OR COMMUNICATIVE
NATURE" WITHIN THE MEANING OF THE CONSTITUTION.  SCHMERBER V.
CALIFORNIA, SUPRA, AT 761.  IT MERELY PROVIDES THE STATE AND PRIVATE
PARTIES WITH THE DRIVER'S IDENTITY FOR, AMONG OTHER VALID STATE NEEDS,
THE STUDY OF CAUSES OF VEHICLE ACCIDENTS AND RELATED PURPOSES, ALWAYS
SUBJECT TO THE DRIVER'S RIGHT TO ASSERT A FIFTH AMENDMENT PRIVILEGE
CONCERNING SPECIFIC INQUIRIES. 

RESPONDENT ARGUES THAT SINCE THE STATUTORY DUTY TO STOP IS IMPOSED
ONLY ON THE "DRIVER OF ANY VEHICLE INVOLVED IN AN ACCIDENT," A DRIVER'S
COMPLIANCE IS TESTIMONIAL BECAUSE HIS ACTION GIVES RISE TO AN INFERENCE
THAT HE BELIEVES THAT HE WAS THE "DRIVER OF (A) VEHICLE INVOLVED IN AN
ACCIDENT."  FROM THIS, THE RESPONDENT TELLS US, IT CAN BE FURTHER
INFERRED THAT HE WAS INDEED THE OPERATOR OF AN "ACCIDENT INVOLVED"
VEHICLE.  IN WADE, HOWEVER, THE COURT REJECTED THE NOTION THAT SUCH
INFERENCES ARE COMMUNICATIVE OR TESTIMONIAL.  THERE THE RESPONDENT WAS
PLACED IN A LINEUP TO BE VIEWED BY PERSONS WHO HAD WITNESSED A BANK
ROBBERY.  AT ONE POINT HE WAS COMPELLED TO SPEAK THE WORDS ALLEGED TO
HAVE BEEN USED BY THE PERPETRATOR.  DESPITE THE INFERENCE THAT THE
RESPONDENT UTTERED THE WORDS IN HIS NORMAL UNDISGUISED VOICE, THE COURT
HELD THAT THE UTTERANCES WERE NOT OF A "TESTIMONIAL" NATURE IN THE
SENSE OF THE FIFTH AMENDMENT PRIVILEGE EVEN THOUGH THE SPEAKING MIGHT
WELL HAVE LED TO IDENTIFYING HIM AS THE BANK ROBBER.  UNITED STATES V.
WADE, SUPRA, AT 222-223.  FURTHERMORE, THE COURT NOTED IN WADE THAT NO
QUESTION WAS PRESENTED AS TO THE ADMISSIBILITY IN EVIDENCE AT TRIAL OF
ANYTHING SAID OR DONE AT THE LINEUP.  ID., AT 223.  SIMILARLY NO SUCH
PROBLEM IS PRESENTED HERE.  OF COURSE, A SUSPECT'S NORMAL VOICE
CHARACTERISTICS, LIKE HIS HANDWRITING, BLOOD, FINGERPRINTS, OR BODY MAY
PROVE TO BE THE CRUCIAL LINK IN A CHAIN OF EVIDENTIARY FACTORS
RESULTING IN PROSECUTION AND CONVICTION.  YET SUCH EVIDENCE MAY BE USED
AGAINST A DEFENDANT. 

AFTER HAVING STOPPED, A DRIVER INVOLVED IN AN ACCIDENT IS REQUIRED
BY SEC. 20002(A)(1) TO NOTIFY THE DRIVER OF THE OTHER VEHICLE OF HIS
NAME AND ADDRESS.  A NAME, LINKED WITH A MOTOR VEHICLE, IS NO MORE
INCRIMINATING THAN THE TAX RETURN, LINKED WITH THE DISCLOSURE OF
INCOME, IN UNITED STATES V. SULLIVAN, SUPRA.  IT IDENTIFIES BUT DOES
NOT BY ITSELF IMPLICATE ANYONE IN CRIMINAL CONDUCT.  /6/

ALTHOUGH IDENTITY, WHEN KNOWN, MAY LEAD TO INQUIRY THAT IN TURN
LEADS TO ARREST AND CHARGE, THOSE DEVELOPMENTS DEPEND ON DIFFERENT
FACTORS AND INDEPENDENT EVIDENCE.  HERE THE COMPELLED DISCLOSURE OF
IDENTITY COULD HAVE LED TO A CHARGE THAT MIGHT NOT HAVE BEEN MADE HAD
THE DRIVER FLED THE SCENE; BUT THIS IS TRUE ONLY IN THE SAME SENSE THAT
A TAXPAYER CAN BE CHARGED ON THE BASIS OF THE CONTENTS OF A TAX RETURN
OR FAILURE TO FILE AN INCOME TAX FORM.  THERE IS NO CONSTITUTIONAL
RIGHT TO REFUSE TO FILE AN INCOME TAX RETURN OR TO FLEE THE SCENE OF AN
ACCIDENT IN ORDER TO AVOID THE POSSIBILITY OF LEGAL INVOLVEMENT. 

THE JUDGMENT OF THE CALIFORNIA SUPREME COURT IS VACATED AND THE CASE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              VACATED AND REMANDED. 

/1/  AS AN ALTERNATIVE SEC. 20002(A)(2) (SUPP. 1971) REQUIRES THAT
THE DRIVER SHALL "(LEAVE IN A CONSPICUOUS PLACE ON THE VEHICLE OR OTHER
PROPERTY DAMAGED A WRITTEN NOTICE GIVING THE NAME AND ADDRESS OF THE
DRIVER AND OF THE OWNER OF THE VEHICLE INVOLVED AND A STATEMENT OF THE
CIRCUMSTANCES THEREOF AND SHALL WITHOUT UNNECESSARY DELAY NOTIFY THE
POLICE DEPARTMENT.  . . ." 

THE CALIFORNIA SUPREME COURT DID NOT PASS UPON THIS PART OF THE
STATUTE, AND WE EXPRESS NO OPINION AS TO ITS VALIDITY.  THE VIOLATION
OF EITHER PART OF THE STATUTE LEAVES THE DRIVER LIABLE TO IMPRISONMENT
FOR UP TO SIX MONTHS OR TO A FINE OF UP TO $500 OR BOTH. 

THE CALIFORNIA VEHICLE CODE ALSO REQUIRES DRIVERS INVOLVED IN
ACCIDENTS RESULTING IN PERSONAL INJURY OR DEATH TO FILE ACCIDENT
REPORTS, BUT THERE IS A STATUTORY USE RESTRICTION FOR THESE COMPELLED
DISCLOSURES.  SECS. 20012-20013. 

/2/  THE ILLEGAL PASSING CHARGE CONTAINED IN COUNT 1 HAS NEVER BEEN
BROUGHT TO TRIAL. 

/3/  PRESUMABLY THE CALIFORNIA HOLDING CONTEMPLATED THAT PERSONS WHO
FAIL TO COMPLY WITH THE STATUTE IN THE FUTURE WILL BE SUBJECT TO
PROSECUTION AND CONVICTION SINCE THE USE RESTRICTION REMOVED THE
JUSTIFICATION FOR A REASONABLE APPREHENSION OF SELF-INCRIMINATION.  OUR
DISPOSITION REMOVES THE PREMISE UPON WHICH THE USE RESTRICTION RESTED. 

/4/  SEE SHAPIRO V. UNITED STATES, 335 U.S. 1 (1948). 

/5/  "AS THE DEFENDANT'S INCOME WAS TAXED, THE STATUTE OF COURSE
REQUIRED A RETURN.  . . . 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 263. 

/6/  WE ARE NOT CALLED ON TO DECIDE, BUT IF THE DICTUM OF THE
SULLIVAN OPINION WERE FOLLOWED, THE DRIVER HAVING STOPPED AND
IDENTIFIED HIMSELF, PURSUANT TO THE STATUTE, COULD DECLINE TO MAKE ANY
FURTHER STATEMENT.  UNITED STATES V. SULLIVAN, SUPRA, AT 263. 

MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT. 

FOR THE REASONS WHICH FOLLOW, I CONCUR IN THE JUDGMENT OF THE
COURT. 

        I 

THE RESPONDENT, BYERS, AS A DRIVER OF A VEHICLE INVOLVED IN AN
ACCIDENT RESULTING IN PROPERTY DAMAGE, WAS CHARGED IN A TWO-COUNT
COMPLAINT WITH OVERTAKING ANOTHER VEHICLE IN A MANNER PROSCRIBED BY
SEC. 21750 OF THE CALIFORNIA VEHICLE CODE (SUPP. 1971) AND FAILING TO
COMPLY WITH THE REQUIREMENTS OF SEC. 20002(A) OF THE CALIFORNIA VEHICLE
CODE (SUPP. 1971).  /1/  THE PARTIES HAVE STIPULATED THAT THE ACCIDENT
WAS CAUSED BY RESPONDENT'S VIOLATION OF SEC. 21750 OF THE CALIFORNIA
VEHICLE CODE.  APP. 36.  THE CALIFORNIA SUPREME COURT HAS HELD THAT IN
CIRCUMSTANCES WHERE A DRIVER INVOLVED IN AN ACCIDENT HAS REASON TO
BELIEVE HIS COMPLIANCE WITH SEC. 20002(A) CREATES A SUBSTANTIAL RISK OF
DISCLOSURE OF INCRIMINATING EVIDENCE, THE FIFTH AMENDMENT REQUIRES THAT
THE STATE MUST EITHER EXCUSE HIS NONCOMPLIANCE IF HE PROPERLY PLEADS
THE PRIVILEGE AGAINST SELF-INCRIMINATION IN A SUBSEQUENT PROSECUTION
FOR FAILURE TO COMPLY OR FORGO THE USE OF ANY INFORMATION DISCLOSED BY
THE STATE'S COMPULSION.  CONSTRUING THE STATE STATUTE AS WHOLLY
NONPROSECUTORIAL IN PURPOSE, THE COURT THEN HELD THAT IMPOSITION OF A
RESTRICTION ON THE USE OF THE INFORMATION OR ITS FRUITS IN A SUBSEQUENT
CRIMINAL PROSECUTION FOR THE CONDUCT CAUSING THE ACCIDENT WOULD BE
CONSISTENT WITH THE STATE LEGISLATIVE PURPOSE. 

I CANNOT SEPARATE THE REQUIREMENT THAT THE INDIVIDUAL STOP FROM THE
REQUIREMENT THAT HE IDENTIFY HIMSELF FOR PURPOSES OF APPLYING EITHER
THE "TESTIMONIAL-- NON-TESTIMONIAL" CLASSIFICATION OF SCHMERBER V.
CALIFORNIA, 384 U.S. 757 (1966), OR THE "SUBSTANTIAL DANGER OF
INCRIMINATION" TEST OF HOFFMAN V. UNITED STATES, 341 U.S. 479 (1951). 
THE CALIFORNIA SUPREME COURT TREATED THESE REQUIREMENTS, IN THE PRIMARY
CONTEXT IN WHICH THE STATUTE OPERATES, AS COMPELLING IDENTIFICATION OF
ONESELF AS A PARTY INVOLVED IN THE STATUTORY REGULATED EVENT.  IF
EVIDENCE OF THAT SELF-IDENTIFICATION WERE ADMITTED AT TRIAL, IT WOULD
CERTAINLY BE "TESTIMONIAL."  IF ALL THAT IS OFFERED AT TRIAL IS THE
IDENTIFICATION EVIDENCE OF THIRD-PARTY WITNESSES, IT STILL DOES NOT
FOLLOW FROM UNITED STATES V. WADE, 388 U.S. 218 (1967), THAT BECAUSE
THE POLICIES OF THE FIFTH AMENDMENT ARE NOT SIGNIFICANTLY AFFECTED BY
STATE COMPULSION TO COOPERATE IN THE PRODUCTION OF REAL EVIDENCE WHERE
THE STATE HAS INDEPENDENTLY FOCUSED INVESTIGATION ON THE DEFENDANT,
THESE POLICIES ARE SIMILARLY UNAFFECTED WHERE THE STATE-- IN PURSUIT OF
"REAL"  EVIDENCE-- DEMANDS OF THE DEFENDANT THAT HE FOCUS THE
INVESTIGATION ON HIMSELF.  SEE GENERALLY MANSFIELD, THE ALBERTSON CASE:
CONFLICT BETWEEN THE PRIVILEGE AGAINST SELF-INCRIMINATION AND THE
GOVERNMENT'S NEED FOR INFORMATION, 1966 SUP.CT.REV.  103, 121-124. 

IT MAY BE SAID THAT REQUIRING THE DEFENDANT TO FOCUS ATTENTION ON
HIMSELF AS AN ACCIDENT PARTICIPANT IS NOT EQUIVALENT TO REQURING THE
DEFENDANT TO FOCUS ATTENTION ON HIMSELF AS A CRIMINAL SUSPECT.  AND
THAT PROPOSITION RAISES THE UNDERLYING ISSUE WHICH WE MUST RESOLVE IN
THIS CASE:  HOW DO THE VARIOUS VERBAL FORMULATIONS FOR ASSESSING THE
LEGAL SIGNIFICANCE OF THE RISK OF INCRIMINATION, DEVELOPED BY THE COURT
PRIMARILY IN THE CONTEXT OF THE CRIMINAL PROCESS, SEE MALLOY V. HOGAN,
378 U.S. 1, 11-14 (1964); HOFFMAN V. UNITED STATES, 341 U.S. 479
(1951), OPERATE IN THE CONTEXT OF THE STATE COLLECTION OF DATA FOR
PURPOSES ESSENTIALLY UNRELATED TO CRIMINAL PROSECUTION? 

        II 

THE CALIFORNIA SUPREME COURT IN THE PRESENT CASE RESOLVED THAT ISSUE
AS FOLLOWS: 

     "DECISIONS OF THE UNITED STATES SUPREME COURT MAKE CLEAR THAT

THE PRIVILEGE AGAINST SELF-INCRIMINATION IS A PERSONAL ONE, AND

  THAT WHETHER THE GOVERNMENT MAY REQUIRE A DISCLOSURE DEPENDS UPON

  THE FACTS OF EACH CASE.  INVOCATION OF THE PRIVILEGE IS NOT

  LIMITED TO SITUATIONS IN WHICH THE PURPOSE OF THE INQUIRY IS TO

  GET AN INCRIMINATING ANSWER.  IT IS THE EFFECT OF THE ANSWER THAT

  IS DETERMINATIVE.  'TO SUSTAIN (A CLAIM OF) PRIVILEGE, IT NEED

  ONLY BE EVIDENT 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.'"  (CITING

  HOFFMAN, SUPRA, AND MANSFIELD, SUPRA.) BYERS V. JUSTICE COURT, 71

  CAL.2D 1039, 1046, 458 P.2D 465, 470 (1969). 

THE CALIFORNIA SUPREME COURT WAS SURELY CORRECT IN CONSIDERING THAT
THE DECISIONS OF THIS COURT HAVE MADE IT CLEAR THAT INVOCATION OF THE
PRIVILEGE IS NOT LIMITED TO SITUATIONS WHERE THE PURPOSE OF THE INQUIRY
IS TO GET AN INCRIMINATING ANSWER.  FOR EXAMPLE, IN THE CONTEXT OF
CIVIL PROCEEDINGS THE PRIVILEGE IS GENERALLY AVAILABLE TO WITNESSES AS
LONG AS A SUBSTANTIAL RISK OF SELF-INCRIMINATION CAN BE MADE OUT BY THE
WITNESS.  SEE MCCARTHY V. ARNDSTEIN, 266 U.S. 34 (1924); MURPHY V.
WATERFRONT COMM'N, 378 U.S. 52, 94 (1964) (WHITE, J., CONCURRING). 
AND, IN FAIRNESS TO THE STATE TRIBUNAL WHOSE DECISION WE ARE REVIEWING,
IT MUST BE RECOGNIZED THAT A READING OF OUR MORE RECENT CASES--
ESPECIALLY MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968), AND GROSSO
V. UNITED STATES, 390 U.S. 62 (1968)-- SUGGESTS THE CONCLUSION THAT THE
APPLICABILITY OF THE PRIVILEGE DEPENDS EXCLUSIVELY ON A DETERMINATION
THAT, FROM THE INDIVIDUAL'S POINT OF VIEW, THERE ARE "REAL" AND NOT
"IMAGINARY" RISKS OF SELF-INCRIMINATION IN YIELDING TO STATE
COMPULSION.  THUS, MARCHETTI AND GROSSO (AND THE CASES THEY OVERRULED,
UNITED STATES V. KAHRIGER, 345 U.S. 22 (1953), AND LEWIS V. UNITED
STATES, 348 U.S. 419 (1955), START FROM AN ASSUMPTION OF A
NONPROSECUTORIAL GOVERNMENTAL PURPOSE IN THE DECISION TO TAX GAMBLING
REVENUE; THOSE CASES GO ON TO APPLY WHAT IN ANOTHER CONTEXT I HAVE
CALLED THE "REAL DANGER V. IMAGINARY POSSIBILITY" STANDARD, SEE EMSPAK
V. UNITED STATES, 349 U.S. 190, 209 N. 1 (1955), TO THE GAMBLING
REPORTING REQUIREMENTS IMPOSED ON THE INDIVIDUAL IN ORDER TO DETERMING
THE CONSTITUTIONALITY OF THOSE REQUIREMENTS.  SEE MARCHETTI V. UNITED
STATES, SUPRA, AT 48-54; GROSSO V. UNITED STATES, SUPRA, AT 66-67.  A
JUDICIAL TRIBUNAL WHOSE POSITION WITH RESPECT TO THE ELABORATION OF
CONSTITUTIONAL DOCTRINE IS SUBORDINATE TO THAT OF THIS COURT CERTAINLY
CANNOT BE FAULTED FOR READING THESE OPINIONS AS INDICATING THAT THE
"INHERENTLY-SUSPECT-CLASS" FACTOR IS RELEVANT ONLY AS AN INDICIUM OF
GENUINE INCRIMINATING RISK AS ASSESSED FROM THE INDIVIDUAL'S POINT OF
VIEW.  SEE ALSO HAYNES V. UNITED STATES, 390 U.S. 85, 95-98 (1968);
LEARY V. UNITED STATES, 395 U.S. 6, 16-18 (1969); AND COMPARE THE
DISSENTING OPINION OF MR. JUSTICE FRANKFURTER IN THE KAHRIGER CASE,
SUPRA. 

THAT INFERENCE FROM OUR PAST CASES WAS THE CENTRAL PREMISE OF THE
CALIFORNIA SUPREME COURT'S OPINION.  SEE BYERS V. JUSTICE COURT, SUPRA,
AT 1042-1043, 458 P.2D,AT 468.  THUS, THAT TRIBUNAL IS IN AGREEMENT
WITH THE CONCLUSION REACHED IN TODAY'S OPINION OF THE CHIEF JUSTICE
THAT THE CLASS OF ACCIDENT PARTICIPANTS IS NOT AN "INHERENTLY SUSPECT"
CLASS WITHIN THE MEANING OF MARCHETTI, GROSSO, AND HAYNES.  BUT THE
STATE COURT WENT ON TO CONCLUDE THAT THE WIDESPREAD PREVALENCE OF
CRIMINAL SANCTIONS AS A MEANS OF REGULATING DRIVING CONDUCT CAST A
SUBSTANTIAL SHADOW OF SUSPICION OVER THE CLASS, AND THAT THIS
CIRCUMSTANCE PLUS THE DRIVER'S AWARENESS THAT HIS ILLEGAL BEHAVIOR
CAUSED THE ACCIDENT RENDERED THE DRIVER'S CONCLUSION THAT HE WOULD
INCRIMINATE HIMSELF BY COMPLYING WITH THE STATUTE SUFFICIENTLY
PLAUSIBLE TO SUPPORT AN ASSERTION OF THE PRIVILEGE.  ID., AT 1045-1046,
458 P.2D,AT 470.  STARTING FROM THE CALIFORNIA SUPREME COURT'S PREMISE
AND LOOKING AT OUR CASES DEFINING THE TEST FOR RISKS OF INCRIMINATION,
SE MALLOY V. HOGAN, 378 U.S.,AT 11-14; HOFFMAN V. UNITED STATES, 341
U.S. 479 (1951); ROGERS V. UNITED STATES, 340 U.S. 367, 374 (1951);
BROWN V. WALKER, 161 U.S. 591 (1896), I WOULD HAVE TO REACH THE SAME
CONCLUSION.  I AM, HOWEVER, FOR THE REASONS STATED IN THE REMAINDER OF
THIS OPINION, CONSTRAINED TO HOLD THAT THE PRESENCE OF A "REAL" AND NOT
"IMAGINARY"  RISK OF SELF-INCRIMINATION IS NOT A SUFFICIENT PREDICATE
FOR EXTENDING THE PRIVILEGE AGAINST SELF-INCRIMINATION TO REGULATORY
SCHEMES OF THE CHARACTER INVOLVED IN THIS CASE. 

        III 

FIRST, IT IS INSTRUCTIVE TO CONSIDER THE IMPLICATIONS OF ADHERING TO
THE PREMISE WHICH THE CALIFORNIA SUPREME COURT DREW FROM OUR PRIOR
CASES.  IN UNITED STATES V. SULLIVAN, 274 U.S. 259 (1927), MR. JUSTICE
HOLMES STATED HIS VIEW THAT "(IT WOULD BE AN EXTREME IF NOT AN
EXTRAVAGANT APPLICATION OF THE FIFTH AMENDMENT TO SAY THAT IT
AUTHORIZED A MAN TO REFUSE TO STATE THE AMOUNT OF HIS INCOME BECAUSE IT
HAD BEEN MADE IN CRIME."  ID., AT 263-264.  /2/  YET-- AT LEAST FOR AN
INDIVIDUAL WHOSE INCOME IS LARGELY OR ENTIRELY DERIVED FROM ILLEGAL
ACTIVITIES-- IT IS, I THINK, MANIFESTLY UNSATISFACTORY TO MAINTAIN THAT
IT SHOULD BE "'PERFECTLY CLEAR (TO HIM), FROM A CAREFUL CONSIDERATION
OF ALL THE CIRCUMSTANCES IN THE CASE (THAT HIS STATEMENT OF THE AMOUNT
OF HIS INCOME) CANNOT POSSIBLY HAVE (A) TENDENCY' TO INCRIMINATE." 
HOFFMAN V. UNITED STATES, 341 U.S.,AT 488.  CERTAINLY THAT INDIVIDUAL
WOULD HAVE GOOD REASON TO SUSPECT THAT IF THE STATE IS PERMITTED TO
INTRODUCE HIS INCOME TAX RETURN INTO EVIDENCE, THE INFORMATION
CONTAINED THEREIN-- EVEN IF WHOLLY CONFINED TO A STATEMENT OF HIS GROSS
INCOME-- WILL, WHEN COMBINED WITH OTHER EVIDENCE DERIVED FROM
INDEPENDENT SOURCES, INCRIMINATE HIM.  UNITED STATES V. BURR, 25
F.CAS.  38, 40 (NO. 14,692E) (CC VA. 1807).  NOR CAN THE "REQUIRED
RECORDS" DOCTRINE OF SHAPIRO V. UNITED STATES, 335 U.S. 1 (1948), BE
INVOKED TO AVOID THAT CONCLUSION; FOR THAT DOCTRINE, AS APPLIED TO THIS
SITUATION, WOULD SIMPLY MEAN THAT THE TAXING POWER IS OF SUFFICIENT
IMPORT TO JUSTIFY COMPELLED SELF-INCRIMINATION.     IF MR. JUSTICE
HOLMES' ASSERTION THAT IT WOULD BE AN EXTREME, IF NOT EXTRAVAGANT,
EXTENSION OF THE FIFTH AMENDMENT TO APPLY IT IN SUCH A SITUATION
STRIKES A RESPONSIVE CHORD, IT IS BECAUSE THE PRIMARY CONTEXT FROM
WHICH THE PRIVILEGE EMERGES IS THAT OF THE CRIMINAL PROCESS, BOTH IN
THE INVESTIGATORY AND TRIAL PHASES.  WHEN APPLIED IN THAT CONTEXT, THE
SOLE GOVERNMENTAL INTEREST THAT THE PRIVILEGE DEFEATS IS THE
ENFORCEMENT OF LAW THROUGH CRIMINAL SANCTIONS.  AND, WITH REGARD TO THE
WITNESS' PRIVILEGE, THE JUDGE CAN, FOR THE MOST PART, DRAW THE LINE
BETWEEN "REAL" AND "IMAGINARY" RISKS OF INCRIMINATION IN THE MARGINAL
CASES, THEREBY OFFSETTING THE TENDENCY FOR THE PRIVILEGE TO BECOME AN
ABSOLUTE RIGHT NOT TO DISCLOSE ANY INFORMATION AT ALL. 

BUT, OF COURSE, GOVERNMENTAL INTERESTS OTHER THAN THE ENFORCEMENT OF
CRIMINAL LAWS ARE AFFECTED BY AN EXTENSION OF THE PRIVILEGE TO ALL
INSTANCES OF GOVERNMENTAL COMPULSION TO DISCLOSE INFORMATION.  IN THE
PRESENT CASE, THE INTERESTS OF THE STATE OF CALIFORNIA IN A SYSTEM OF
PERSONAL FINANCIAL RESPONSIBILITY FOR AUTOMOBILE ACCIDENTS ARE
IMPLICATED.  INDEED, IN MY BROTHER BRENNAN'S VIEW, THE PRICE WHICH THE
STATE MUST PAY FOR UTILIZING COMPULSORY SELF-REPORTING TO ASSURE
PERSONAL FINANCIAL RESPONSIBILITY ON THE HIGHWAYS IS TO FORGO USE OF
THE CRIMINAL SANCTION TO REGULATE DRIVING HABITS IN ALL CASES WHERE THE
INDIVIDUAL WOULD BE REQUIRED TO COMPLY WITH SEC. 20002.  /3/  AND I
EMPHASIZE THE LOGIC OF THE HOFFMAN STANDARD IS SUCH THAT THE RESULT
CANNOT BE SAID TO TURN ON AN EMPIRICAL ASSUMPTION THAT THERE IS A LOWER
CORRELATION BETWEEN CRIMINAL PROSECUTIONS AND HIGHWAY ACCIDENTS, THAN
BETWEEN CRIMINAL PROSECUTIONS AND INCOME DISCLOSURE.  FOR IF THE
PRIVILEGE IS TRULY A PERSONAL ONE, AND THE CENTRAL STANDARD IS THE
PRESENCE OF "REAL" AS OPPOSED TO "IMAGINARY" RISKS OF SELF
INCRIMINATION, SUCH GENERAL EMPIRICAL DIFFERENCES CAN ONLY FUNCTION AS
EVIDENTIARY INDICIA IN ASSESSING THE PARTICULAR INDIVIDUAL'S CLAIM, IN
ALL THE CIRCUMSTANCES OF HIS PARTICULAR CASE, THAT IF HE WERE TO COMPLY
WITH THE REPORTING REQUIREMENT HE WOULD RUN A GENUINE RISK OF
INCRIMINATION.  AND, IF THE HOFFMAN STANDARD IS TO BE TRULY APPLIED--
AS OPPOSED TO INDULGING IN A COLLECTION OF ARTIFICIAL, IF NOT
DISINGENUOUS JUDGMENTS THAT THE RISKS OF INCRIMINATION ARE NOT THERE
WHEN THEY REALLY ARE THERE-- WE WILL HAVE TO RECOGNIZE THAT IN THE
ABSENCE OF SOME SORT OF IMMUNITY GRANT THE INDIVIDUAL WILL BE REQUIRED
TO DECIDE WHETHER OR NOT TO COMPLY WITHOUT THE GUIDANCE OF A JUDICIAL
DECISION AS TO HOW THE STANDARD APPLIES TO HIS PERSONAL SITUATION. 
THAT MEANS THAT THE MARGINAL CASES SHOULD BE RESOLVED IN THE
INDIVIDUAL'S FAVOR.  WHAT WE ARE REALLY TALKING ABOUT, THEN, IS EITHER
A STANDARD FOR RISKS OF SELF-INCRIMINATION WHICH PROTECTS ALL PERSONAL
JUDGMENTS WHICH ARE NOT PATENTLY FRIVOLOUS, OR A GRANT OF IMMUNITY
POTENTIALLY APPLICABLE TO ALL INSTANCES OF COMPELLED "SELF-REPORTING." 

OF COURSE, THE CALIFORNIA SUPREME COURT TOOK THE POSITION THAT THE
PERMISSIBLE STATE OBJECTIVE IN THE REPORTING REQUIREMENT AND THE
CONSTITUTIONAL VALUES PROTECTED BY THE FIFTH AMENDMENT COULD BE
ACCOMMODATED BY IMPOSING A RESTRICTION ON PROSECUTORIAL USE OF THE
DISCLOSED INFORMATION AND ITS FRUITS.  SEE INFRA, AT 444-447.  SEE
GENERALLY MCKAY, SELF-INCRIMINATION AND THE NEW PRIVACY, 1967
SUP.CT.REV.  193, 229-231; MANSFIELD, SUPRA, AT 163-166.  BUT THAT
ACCOMMODATION LEAVES THE GOVERNMENT'S CAPACITY TO UTILIZE SELF
REPORTING SCHEMES PRACTICALLY IMPAIRED BY THE NECESSARY PRESUMPTION
THAT EVIDENCE USED IN A PROSECUTION AFTER THE INDIVIDUAL DISCLOSES HIS
RELATIONSHIP TO THE REGULATED TRANSACTION WOULD NOT HAVE BEEN AVAILABLE
IF THE INDIVIDUAL HAD NOT COMPLIED WITH THE STATUTE.  IN THE CONTEXT OF
"HIT-AND-RUN" STATUTES A USE IMMUNITY-- UNLESS HONORED IN THE BREACH BY
CONSISTENT FINDINGS OF "NO TAINT"-- IS LIKELY TO RENDER DOUBTFUL THE
STATE'S ABILITY TO PROSECUTE IN A LARGE CLASS OF CASES WHERE ILLEGAL
DRIVING HAS CAUSED ACCIDENTS.  ON THE OTHER HAND, IT WOULD SEEM
UNLIKELY THAT THE STATE LEGISLATURE WILL ACCEPT THE CALIFORNIA SUPREME
COURT'S INVITATION TO OVERRIDE THE USE REQUIREMENT IF THE LEGISLATIVE
JUDGMENT IS THAT THE STATE'S ABILITY TO USE THE CRIMINAL SANCTION IS
TOO SEVERELY HANDICAPPED BY A USE RESTRICTION.  SEE INFRA, AT 446-447. 
FOR THE IMPACT OF A PRACTICALLY SELF-EXECUTING CLAIM OF PRIVILEGE ON
THE NONCRIMINAL OBJECTIVES OF THE REPORTING REQUIREMENT WOULD BE EVEN
MORE SEVERE.  EVEN UNDER A USE RESTRICTION, THEN, THE CHOICE OPEN TO
THE STATE IS TO FORGO PROSECUTION IN AT LEAST A LARGE NUMBER OF
ACCIDENT CASES INVOLVING ILLEGAL DRIVING-- THE PRECISE SITUATION WHERE
CRIMINAL SANCTIONS ARE LIKELY TO BE MOST APPROPRIATE-- OR TO FORGO SELF
REPORTING IN A LARGE CLASS OF ACCIDENT CASES. 

MR. JUSTICE BRENNAN ARGUES THAT TO DRAW THIS CONCLUSION FROM THE
RECORD IN THIS CASE IS TO "FLOUT" THE CONCLUSION OF THE CALIFORNIA
SUPREME COURT AND THE CALIFORNIA LEGISLATURE THAT IMPOSITION OF A USE
RESTRICTION AS A CONDITION FOR PROSECUTING BYERS FOR NONCOMPLIANCE WITH
SEC. 20002(A) IS "NOT AT ALL INCONSISTENT WITH THE ASSERTED STATE
INTERESTS."  POST, AT 476.  APPARENTLY MY BROTHER BRENNAN MAINTAINS
THAT IMPOSITION OF A USE RESTRICTION IN THE CIRCUMSTANCES OF THIS CASE
WILL NOT, IN FACT, SIGNIFICANTLY INTERFERE WITH THE STATE'S ABILITY TO
ENFORCE CRIMINAL SANCTIONS RELATING TO DRIVING BEHAVIOR WHERE THE
BEHAVIOR CULMINATES IN AN ACCIDENT CAUSING PROPERTY DAMAGE.  /4/  THAT,
IN ANY EVENT, SEEMS TO BE THE VIEW HE ATTRIBUTES TO THE CALIFORNIA
SUPREME COURT AND THE CALIFORNIA LEGISLATURE.  SEE OPINION OF MR.
JUSTICE BRENNAN, POST, AT 475-476 AND N. 10. 

BUT THAT IS CERTAINLY NOT THE POSITION THE CALIFORNIA SUPREME COURT
TOOK, NOR THE POSITION THAT COURT ATTRIBUTED TO THE STATE LEGISLATURE. 
THUS, HAVING FIRST CONCLUDED THAT THE FEDERAL CONSTITUTION REQUIRED
RECOGNITION OF AN ASSERTION OF THE PRIVILEGE IN ALL SITUATIONS WHERE
THE INDIVIDUAL CONFRONTS "REAL" AND NOT "IMAGINARY" RISKS OF SELF
INCRIMINATION, THE CALIFORNIA SUPREME COURT SET ABOUT THE TASK OF
ASCERTAINING THE LEGISLATIVE PREFERENCE BETWEEN LEGISLATIVE GOALS
WHICH, BY VIRTUE OF THE IMPOSITION OF A FEDERAL CONSTITUTIONAL
REQUIREMENT, WERE PLACED IN CONFLICT: 

     "FINALLY, IT IS INSTRUCTIVE, IN DETERMINING LEGISLATIVE
INTENT,

  TO CONSIDER AN ANALOGOUS FIELD OF LEGISLATION INVOLVING A SIMILAR

  CONFLICT BETWEEN REQUIRING DISCLOSURES FOR NONCRIMINAL PURPOSES

  AND THE PRIVILEGE AGAINST SEFL-INCRIMINATION.  IN

  SEFL-INCRIMINATION.  IN THE STATUTES REQUIRING DRIVERS INVOLVED

  IN ACCIDENTS RESULTING IN PERSONAL INJURY OR DEATH TO FILE

  ACCIDENT REPORTS, THE LEGISLATURE HAS EXPLICITLY SUBORDINATED THE

  STATE'S PROSECUTORIAL INTEREST TO THE INTEREST IN OBTAINING THE

  DISCLOSURE. 

     "IN THE PRESENT CASE THERE IS NO PROBLEM OF CONFLICTING STATE

  AND FEDERAL INTERESTS; IT IS THE STATE WHICH BOTH DEMANDS

  DISCLOSURE OF INFORMATION IN 'HIT-AND-RUN' ACCIDENTS AND

  PROSECUTES THOSE WHO COMMIT CRIMINAL ACTS ON THE HIGHWAYS. 

  IMPOSING USE-RESTRICTIONS IN THE PRESENT CASE MERELY INVOLVES

  THIS COURT IN MAKING A JUDGMENT, BASED ON AN ASSESSMENT OF

  PROBABLY LEGISLATIVE INTENT, THAT THE LEGISLATURE WOULD PREFER TO

  HAVE THE PROVISIONS OF SECTION 20002 OF THE VEHICLE CODE UPHELD

  EVEN IN CASES INVOLVING POSSIBLE CRIMINAL MISCONDUCT AT THE COST

  OF SOME BURDEN ON PROSECUTING AUTHORITIES IN CRIMINAL CASES

  ARISING OUT OF OR RELATED TO AN ACCIDENT COVERED BY THAT SECTION

  RATHER THAN AVOID THAT BURDEN AT THE COST OF SIGNIFICANTLY

FRUSTRATING THE IMPORTANT NONCRIMINAL OBJECTIVE OF THE

LEGISLATION.  IMPOSITION OF USE-RESTRICTIONS IN THE PRESENT CASE

  WILL NOT PRECLUDE THE LEGISLATURE FROM OVERRIDING OUR DECISION IF

  IT WISHES BY SIMPLY ENACTING LEGISLATION DECLARING THAT

  INFORMATION DERIVED FROM DISCLOSURES REQUIRED BY SECTION 20002,

  SUBDIVISION (A), MAY BE USED IN CRIMINAL PROSECUTIONS, IN WHICH

  CASE THE PRIVILEGE COULD BE CLAIMED IN APPROPRIATE SITUATIONS. 

     "THERE IS ANOTHER SIGNIFICANT DISTINCTION BETWEEN THE

  CIRCUMSTANCES IN MARCHETTI AND THE CIRCUMSTANCES IN THE PRESENT

  CASE.  IN MARCHETTI THE IMPOSITION OF USE-RESTRICTIONS ON

  INFORMATION OBTAINED AS A RESULT OF COMPLIANCE WITH THE FEDERAL

  WAGERING TAX WOULD HAVE HAD A MUCH MORE SWEEPING EFFECT ON STATE

  LAW ENFORCEMENT THAN WOULD THE IMPOSITION OF SUCH RESTRICTIONS

  HERE.  IT APPEARS THAT MOST-- PERHAPS ALMOST ALL-- VIOLATORS OF

  STATE CRIMINAL PROHIBITIONS AGAINST WAGERING AND RELATED

  ACTIVITIES ARE SUBJECT TO THE DISCLOSURE REQUIREMENTS OF THE

  FEDERAL WAGERING TAX.  (MARCHETTI V. UNITED STATES, SUPRA, 390

  U.S. 39, 44-46, FNS.  5-6.)  THUS, THE IMPOSITION OF

  USE-RESTRICTIONS IN ORDER TO PERMIT CONGRESS TO COMPEL ALL

  WAGERERS TO COMPLY WITH THE WAGERING TAX LAW WOULD HAVE MEANT

  THAT IN ALMOST ALL STATE PROSECUTIONS FOR WAGERING OR RELATED

  ILLEGAL ACITIVITIES THE STATE WOULD BE FORCED, IF THE DEFENDANT

  PROVED COMPLIANCE WITH THE FEDERAL LAW, TO ESTABLISH THAT ITS

  EVIDENCE WAS UNTAINTED.  THIS SITUATION MIGHT INDEED SERIOUSLY

  HAMPER SUCH STATE PROSECUTIONS.  BY CONTRAST, FAR FROM ALL

  CRIMINAL VIOLATIONS COMMITTED ON THE HIGHWAYS BY DRIVERS OF MOTOR

  VEHICLES INVOLVED PROPERTY DAMAGE.  THE BURDEN RESULTING FROM THE

  IMPOSITION OF USE-RESTRICTIONS IN THE LATTER SITUATION WILL EXIST

  ONLY IN THOSE INSTANCES WHERE PROPERTY DAMAGE OCCURS IN THE

  COURSE OR AS A RESULT OF A CRIMINAL VIOLATION COMMITTED ON THE

  HIGHWAYS BY A DRIVER. 

      "WE CONCLUDE THAT CRIMINAL PROSECUTIONS OF DRIVERS INVOLVED
IN

  ACCIDENTS WILL NOT BE UNDULY HAMPERED BY RULES THAT PROSECUTING

  AUTHORITIES MAY NOT USE INFORMATION DIVULGED AS A RESULT OF

  COMPLIANCE WITH SECTION 20002, SUBDIVISION (A), OF THE VEHICLE

  CODE OR THE FRUITS OF SUCH INFORMATION AND THAT IN PROSECUTIONS

  OF INDIVIDUALS WHO HAVE COMPLIED WITH THAT SECTION THE STATE MUST

  ESTABISH THAT ITS EVIDENCE IS NOT THE FRUIT OF SUCH INFORMATION. 

"SINCE IMPOSITION IN THE PRESENT CASE OF USE-RESTRICTIONS AS

  DESCRIBED ABOVE WILL NEITHER FRUSTRATE ANY APPARENT LEGISLATIVE

  PURPOSE BEHIND THE ENACTMENT OF SECTION 20002 OF THE VEHICLE CODE

  NOR UNDULY HAMPER CRIMINAL PROSECUTIONS OF DRIVERS INVOLVED IN

  ACCIDENTS; AND SINCE THE IMPOSITION OF SUCH RESTRICTIONS WILL NOT

  PRECLUDE THE STATE LEGISLATURE FROM OVERRIDING OUR DECISION IF IT

  WISHES, THE REASONS IMPELLING THE UNITED STATES SUPREME COURT TO

  REJECT THE 'ATTRACTIVE AND APPARENTLY PRACTICAL' SUGGESTION OF

  IMPOSING RESTRICTIONS IN MARCHETTI V. UNITED STATES, SUPRA, 390

  U.S. 39, 58, ARE ABSENT IN THE PRESENT CASE, AND WE MUST, IN

  ORDER TO FULFILL OUR RESPONSIBILITY TO PROTECT THE PRIVILEGE

  AGAINST SELF-INCRIMINATION, HOLD THAT WHERE COMPLIANCE WITH

  SECTION 20002 OF THE VEHICLE CODE WOULD OTHERWISE BE EXCUSED BY

  AN ASSERTION OF THE PRIVILEGE, COMPLIANCE IS, AS IN OTHER CASES,

  MANDATORY AND STATE PROSECUTING AUTHORITIES ARE PRECLUDED FROM

  USING THE INFORMATION DISCLOSED AS A RESULT OF COMPLIANCE OR ITS

  FRUITS IN CONNECTION WITH ANY CRIMINAL PROSECUTION RELATED TO THE

  ACCIDENT."  BYERS V. JUSTICE COURT, SUPRA, AT 1055-1057, 458

  P.2D, AT 476-477 (FOOTNOTES OMITTED). 

IT IS READILY APPARENT FROM THE ABOVE PASSAGES THAT THE CALIFORNIA
SUPREME COURT RECOGNIZED, AS OF COURSE IT HAD TO, SEE N. 4, SUPRA, THAT
IMPOSITION OF A USE RESTRICTION WOULD SIGNIFICANTLY IMPAIR THE STATE'S
CAPACITY TO PROSECUTE DRIVERS WHOSE ILLEGAL BEHAVIOR CAUSED ACCIDENTS. 
BUT THAT COURT HAD DECIDED THAT THE FEDERAL CONSTITUTION COMPELLED THE
STATE, AT THE VERY LEAST, TO ACCEPT THAT BURDEN ON ITS PROSECUTORIAL
EFFORTS IN SUCH CASES IF IT WISHED TO PURSUE ITS NONPROSECUTORIAL GOAL
THROUGH COMPELLED SELF-REPORTING.  GIVEN THE AVAILABILITY OF THE
CRIMINAL SANCTION FOR CASES WHERE ACCIDENTS DO NOT OCCUR THE COURT
CONCLUDED THAT INTERFERENCE WITH PROSECUTORIAL EFFORTS IN ACCIDENT
CASES WAS NOT SO IMPORTANT THAT IT RENDERED THE USE RESTRICTION LESS
PALATABLE TO THE STATE THAN RECOGNITION OF AN OUTRIGHT PRIVILEGE NOT TO
DISCLOSE.  I FAIL TO SEE HOW IT "FLOUTS" THE STATE'S ASSESSMENT OF ITS
OWN INTERESTS TO REMOVE THE PREMISE THAT FEDERAL LAW COMPELS A
SACRIFICE OF CRIMINAL LAW ENFORCEMENT WHERE ACCIDENTS ARE INVILVED; I
DOUBT THAT ANYONE WOULD MAINTAIN THAT CRIMINAL LAW ENFORCEMENT GOALS
ARE NOT SIGNIFICANTLY SERVED BY IMPOSITION OF CRIMINAL SANCTIONS IN THE
VERY CASES WHERE THE FEARED RESULTS OF DANGEROUS DRIVING HAVE ACTUALLY
MATERIALIZED.  OF COURSE, AFTER THE FEDERAL LAW PREMISE HAS BEEN
REMOVED, THE STATE IS FREE TO CONCLUDE AS A MATTER OF STATE
CONSTITUTIONAL OR LEGISLATIVE POLICY THAT CONTINUED IMPOSITION OF USE
RESTRICTIONS WITH RESPECT TO THIS CATEGORY OF CASES WOULD STILL BE
APPROPRIATE IN LIGHT OF THE STATE'S OWN ASSESSMENT OF THE RELEVANT
REGULATORY INTERESTS AT STAKE AND THE PERSONAL VALUES PROTECTED BY THE
PRIVILEGE AGAINST SELF-INCRIMINATION. 

        IV 

THUS THE PUBLIC REGULATION OF DRIVING BEHAVIOR THROUGH A PATTERN OF
LAWS WHICH INCLUDES COMPELLED SELF-REPORTING TO ENSURE FINANCIAL
RESPONSIBILITY FOR ACCIDENTS AND CRIMINAL SANCTIONS TO DETER DANGEROUS
DRIVING ENTAILS GENUINE RISKS OF SELF-INCRIMINATION FROM THE DRIVER'S
POINT OF VIEW.  THE CONCLUSION THAT THE FIFTH AMENDMENT EXTENDS TO THIS
REGULATORY SCHEME WILL IMPAIR THE CAPACITY OF THE STATE TO PURSUE THESE
OBJECTIVES SIMULTANEOUSLY.  FOR COMPELLED SELF-REPORTING IS A NECESSARY
PART OF AN EFFECTIVE SCHEME OF ASSURING PERSONAL FINANCIAL
RESPONSIBILITY FOR AUTOMOBILE ACCIDENTS.  UNDOUBTEDLY, IT CAN BE ARGUED
THAT SELF-REPORTING IS AT LEAST AS NECESSARY TO AN EFFECTIVE SCHEME OF
CRIMINAL LAW ENFORCEMENT IN THIS AREA.  THE FAIR RESPONSE TO THAT
LATTER CONTENTION MAY BE THAT THE PURPOSE OF THE FIFTH AMENDMENT IS TO
COMPEL THE STATE TO OPT FOR THE LESS EFFICIENT METHODS OF AN
"ACCUSATORIAL" SYSTEM.  BUT SEE SCHMERBER V. CALIFORNIA, 384 U.S. 757
(1966).  BUT IT WOULD NOT FOLLOW THAT THE CONSTITUTIONAL VALUES
PROTECTED BY THE "ACCUSATORIAL" SYSTEM, SEE INFRA, AT 450-451, ARE OF
SUCH OVERRIDING SIGNIFICANCE THAT THEY COMPEL SUBSTANTIAL SACRIFICES IN
THE EFFICIENT PURSUI OF OTHER GOVERNMENAL OBJECTIVES IN ALL SITUATIONS
WHERE THE PURSUIT OF THOSE OBJECTIVES REQUIRES THE DISCLOSURE OF
INFORMATION WHICH WILL UNDOUBTEDLY SIGNIFICANTLY AND IN CRIMINAL LAW
ENFORCEMENT. 

FOR WHILE THIS COURT'S FIFTH AMENDMENT PRECEDENTS HAVE INSTRUCTED
THAT THE FIFTH AMENDMENT BE GIVEN A CONSTRUCTION "AS BROAD AS THE
MISCHIEF AGAINST WHICH IT SEEKS TO GUARD," MIRANDA V. ARIZONA, 384 U.S.
436, 459-460 61966) (QUOTING FROM COUNSELMAN V. HITCHCOCK, 142 U.S.
547, 562 (1892), AND WHILE THE COURT IN MALLOY V. HOGAN, 378 U.S. 1
(1964), TREATED THE PRIVILEGE AS ONE OF THOSE FUNDAMENTAL RIGHTS TO BE
"SELECTIVELY INCORPORATED" INTO THE FOURTEENTH AMENDMENT, IT IS ALSO
TRUE THAT THE COURT HAS RECOGNIZED THAT THE "SCOPE OF THE PRIVILEGE
(DOES NOT COINCIDE) WITH THE COMPLEX OF VALUES IT HELPS TO PROTECT." 
SCHMERBER V. CALIFORNIA, 384 U.S.,AT 762.  AND SEE MR. JUSTICE
BRENNAN'S CONCURRING OPINION IN MARCHETTI, SUPRA, AND GROSSO, SUPRA,
390 U.S.,AT 72-73.  IN THE SCHMERBER CASE THE COURT CONCLUDED THAT THE
IMPACT OF COMPELLED DISCLOSURE OF "NON-TESTIMONIAL" EVIDENCE ON THE
VALUES THE PRIVILEGE IS DESIGNED TO PROTECT WAS INSUFFICIENT TO WARRANT
A FURTHER RESTRICTION ON THE STATE'S ENFORCEMENT OF ITS CRIMINAL LAWS. 
AND THE COURT IN SCHMERBER EXPLICITLY DECLINED RELIANCE ON THE
IMPLICATION OF A "TESTIMONIAL" LIMITATION TO BE FOUND IN THE LANGUAGE
OF THE FIFTH AMENDMENT.  384 U.S.,AT 761 N. 6. 

THE POINT I DRAW FROM THE SCHMERBER APPROACH TO THE PRIVILEGE IS
THAT "(THE CONSTITUTION CONTAINS NO FORMULAE WITH WHICH WE CAN
CALCULATE THE AREAS WITHIN THIS 'FULL SCOPE' TO WHICH THE PRIVILEGE
SHOULD EXTEND, AND THE COURT HAS THEREFORE BEEN OBLIGED TO FASHION FOR
ITSELF STANDARDS FOR THE APPLICATION OF THE PRIVILEGE.  IN FEDERAL
CASES STEMMING FROM FIFTH AMENDMENT CLAIMS, THE COURT HAS CHIEFLY
DERIVED ITS STANDARDS FROM CONSIDERATION OF TWO FACTORS:  THE HISTORY
AND PURPOSES OF THE PRIVILEGE, AND THE CHARACTER AND URGENCY OF THE
OTHER PUBLIC INTERESTS INVOLVED.  . . . "  SPEVACK V. KLEIN, 385 U.S.
511, 522-523 (1967).  (HARLAN, J., DISSENTING.) 

THERE ARE THOSE, I SUPPOSE, WHO WOULD PUT THE "LIBERAL CONSTRUCTION"
APPROACH OF CASES LIKE MIRANDA, AND BOYD V. UNITED STATES, 116 U.S. 616
(1886), SIDE BY SIDE WITH THE BALANCING APPROACH OF SCHMERBER AND
PERCEIVE NOTHING MORE SUBTLE THAN A SET OF CONSTITUTIONAL ANTINOMIES TO
BE UTILIZED AS CONVENIENT BOOTSTRAPS TO ONE RESULT OR ANOTHER.  BUT I
PERCEIVE IN THESE CASES THE ESSENTIAL TENSION THAT SPRINGS FROM THE
UNCERTAIN MANDATE WHICH THIS PROVISION OF THE CONSTITUTION GIVES TO
THIS COURT. 

THIS COURT'S CASES ATTEMPTING TO CAPTURE THE "PURPOSES" OR
"POLICIES" OF THE PRIVILEGE DEMONSTRATE THE UNCERTAINTY OF THAT
MANDATE.  SEE TEHAN V. SHOTT, 382 U.S. 406, 413-416 (1966); MURPHY V.
WATERFRONT COMM'N, 378 U.S.,AT 55; MIRANDA V. ARIZONA, 384 U.S.,AT 460;
BOYD V. UNITED STATES, SUPRA.  ONE COMMENTATOR TAKES FROM THESE CASES
TWO BASIC THEMES:  (1) THE PRIVILEGE IS DESIGNED TO SECURE AMONG
GOVERNMENTAL OFFICIALS THE SORT OF RESPECT FOR THE INTEGRITY AND WORTH
OF THE INDIVIDUAL CITIZEN THOUGHT TO FLOW FROM THE COMMITMENT TO AN
"ACCUSATORIAL" AS OPPOSED TO AN "INQUISITORIAL" CRIMINAL PROCESS; (2)
THE PRIVILEGE IS PART OF THE "CONCERN FOR INDIVIDUAL PRIVACY THAT HAS
ALWAYS BEEN A FUNDAMENTAL TENET OF THE AMERICAN VALUE STRUCTURE." 
MCKAY, SELF-INCRIMINATION AND THE NEW PRIVACY, 1967 SUP.CT.REV.  193,
210.  CERTAINLY, IN VIEW OF THE EXTENSION OF THE PRIVILEGE TO WITNESSES
IN CIVIL LAWSUITS, SEE MCCARTHY V. ARNDSTEIN, 266 U.S. 34 (1924)-- A
CONTEXT IN WHICH, IN MOST INSTANCES, INFORMATION IS SOUGHT BY A PRIVATE
PARTY WHOLLY FOR PURPOSES OF RESOLVING A PRIVATE DISPUTE-- IT IS
UNLIKELY THAT THE RATIONALE OF THE PRIVILEGE CAN BE LIMITED TO
PRESERVATION OF OFFICAL RESPECT FOR THE INDIVIDUAL'S INTEGRITY.  THOUGH
THE "PRIVACY" RUBRIC IS NOT WITHOUT ITS DIFFICULTIES IN THE FIFTH
AMENDMENT AREA, /5/  IT DOES, I THINK, CAPTURE AN IMPORTANT ELEMENT OF
THE CONCERNS OF THE PRIVILEGE, WHICH ACCOUNTS IN PART FOR OUR
WILLINGNESS TO ACCEPT ITS REACH BEYOND THE CONTEXT OF THE CRIMINAL
INVESTIGATION OR TRIAL.  THE PREMISE OF THE CRIMINAL SANCTION-- AND THE
DISGRACE THAT GOES WITH IT-- IS THAT IT IS MORE FEARED THAN THE MERE
CENSURE OF OUR FELLOW MEMBERS OF SOCIETY; ALTHOUGH COMMUNAL LIVING
REQUIRES US TO BE WILLING TO DISCLOSE MUCH TO THE GOVERNMENT AND OUR
FELLOW CITIZENS ABOUT OUR PRIVATE AFFAIRS-- AND ALTHOUGH THE FEAR OF
EVENTUALLY HAVING TO DISCLOSE OPERATES AS AN INHIBITING FACTOR ON OUR
PERSONAL LIVES-- IT STILL MAKES SENSE TO THINK OF THE FIFTH AMENDMENT
AS INTENDED AT LEAST IN PART TO RELIEVE US OF THE VERY PARTICULAR FEAR
ARISING FROM THE IMPOSITION OF CRIMINAL SANCTIONS. 

THESE VALUES ARE IMPLICATED BY GOVERNMENTAL COMPULSION TO DISCLOSE
INFORMATION ABOUT DRIVING BEHAVIOR AS PART OF A REGULATORY SCHEME
INCLUDING CRIMINAL SANCTIONS.  THE PRIVACY INTEREST IS DIRECTLY
IMPLICATED, WHILE THE INTEREST IN PRESERVING A COMMITMENT TO THE
"ACCUSATORIAL" SYSTEM IS IMPLICATED IN THE MORE ATTENUATED SENSE THAT
AN OFFICIALDOM WHICH HAS AVAILABLE TO IT THE BENEFITS OF A SELF
REPORTING SCHEME MAY BE ENCOURAGED TO RELY UPON THAT SHCEME FOR ALL
GOVERNMENTAL PURPOSES.  BUT, AS I HAVE ARGUED, IT IS ALSO TRUE THAT,
UNLIKE THE ORDINARY CIVIL LAWSUIT CONTEXT, SPECIAL GOVERNMENTAL
INTERESTS IN ADDITION TO THE DETERRENCE OF ANTISOCIAL BEHAVIOR BY USE
OF CRIMINAL SANCTIONS ARE AFFECTED BY EXTENSION OF THE PRIVILEGE TO
THIS REGULATORY CONTEXT.  /6/  IF THE PRIVILEGE IS EXTENDED TO THE
CIRCUMSTANCES OF THIS CASE, IT MUST, I THINK, BE POTENTIALLY AVAILABLE
IN EVERY INSTANCE WHERE THE GOVERNMENT RELIES ON SELF-REPORTING.  AND
THE CONSIDERABLE RISKS TO EFFICIENT GOVERNMENT OF A SELF-EXECUTING
CLAIM OF PRIVILEGE WILL REQUIRE ACCEPTANCE OF, AT THE VERY LEAST, A USE
RESTRICTION OF UNSPECIFIED DIMENSIONS.  TECHNOLOGICAL PROGRESS CREATES
AN EVER-EXPANDING NEED FOR GOVERNMENTAL INFORMATION ABOUT INDIVIDUALS. 
IF THE INDIVIDUAL'S ABILITY IN ANY PARTICULAR CASE TO PERCEIVE A
GENUINE RISK OF SELF-INCRIMINATION IS TO BE A SUFFICIENT CONDITION FOR
IMPOSITION OF USE RESTRICTIONS ON THE GOVERNMENT IN ALL SELF-REPORTING
CONTEXTS, THEN THE PRIVILEGE THREATENS THE CAPACITY OF THE GOVERNMENT
TO RESPOND TO SOCIETAL NEEDS WITH A REALISTIC MIXTURE OF CRIMINAL
SANCTIONS AND OTHER REGULATORY DEVICES.  /7/  TO THE EXTENT THAT OUR
MARCHETTI-GROSSO LINE OF CASES APPEARS TO SUGGEST THAT THE PRESENCE OF
PERCEIVABLE RISKS OF INCRIMINATION IN AND OF ITSELF JUSTIFIES
IMPOSITION OF A USE RESTRICTION ON THE INFORMATION GAINED BY THE
GOVERNMENT THROUGH COMPELLED SELF-REPORTING, I THINK THAT LINE OF CASES
SHOULD BE EXPLICITLY LIMITED BY THIS COURT. 

        V 

I WOULD NOT, HOWEVER, OVERRULE THAT LINE OF CASES.  IN EACH OF THOSE
CASES, /8/  THE GOVERNMENT, RELYING ON ITS TAXING POWER, UNDERTOOK TO
REQUIRE THE INDIVIDUAL TO FOCUS ATTENTION DIRECTLY ON BEHAVIOR WHICH
WAS IMMEDIATELY RECOGNIZABLE AS CRIMINAL IN VIRTUALLY EVERY STATE IN
THE UNION.  SINCE COMPELLED SELF-REPORTING IS CERTAINLY ESSENTIAL TO
THE TAXING POWER, THOSE CASES MUST BE TAKEN TO STAND AT LEAST FOR THE
PROPOSITION THAT THE FIFTH AMENDMENT REQUIRES SOME RESTRICTION ON THE
EFFICIENCY WITH WHICH GOVERNMENT MAY SEEK TO MAXIMIZE BOTH NONCRIMINAL
OBJECTIVES THROUGH SELF-REPORTING SCHEMES AND ENFORCEMENT OF CRIMINAL
SANCTIONS.  IF THE TECHNIQUE OF SELF-REPORTING AS A MEANS OF ACHIEVING
REGULATORY GOALS UNRELATED TO DETERRENCE OF ANTISOCIAL BEHAVIOR THROUGH
CRIMINAL SANCTIONS IS CARRIED TO AN EXTREME, THE "ACCUSATORIAL" SYSTEM
WHICH THE FIFTH AMENDMENT IS SUPPOSED TO SECURE CAN BE REDUCED TO MERE
RITUAL.  AND THE RISK THAT SUCH A SITUATION WILL MATERIALIZE IS NOT
MERELY A FUNCTION OF THE WILLINGNESS OF AN ILL-DISPOSED OFFICIALDOM TO
EXPLOIT THE PROTECTIVE SCREEN OF OSTENSIBLE LEGISLATIVE PURPOSE TO
BYPASS THE PROCEDURAL LIMITATIONS ON GOVERNMENTAL COLLECTION OF
INFORMATION IN THE CRIMINAL PROCESS.  THE SWEEP OF MODERN GOVERNMENTAL
REGULATION-- AND THE DYNAMIC GROWTH OF TECHNIQUES FOR GATHERING AND
USING INFORMATION CULLED FROM INDIVIDUALS BY FORCE OF CRIMINAL
SANCTIONS-- COULD OF COURSE BE THOUGHT TO PRESENT A SIGNIFICANT THREAT
TO THE VALUES CONSIDERED TO UNDERPIN THE FIFTH AMENDMENT, QUITE APART
FROM ANY SUPPOSED ILLEGITIMATE MOTIVES THAT MIGHT NOT BE COGNIZABLE
UNDER ORDINARY CANONS OF JUDICIAL REVIEW.  AS UNCERTAIN AS THE
CONSTITUTIONAL MANDATE DERIVED FROM THIS PORTION OF THE BILL OF RIGHTS
MAY BE, IT IS THE TASK OF THIS COURT CONTINUALLY TO SEEK THAT LINE OF
ACCOMMODATION WHICH WILL RENDER THIS PROVISION RELEVANT TO CONTEMPORARY
CONDITIONS.     IN OTHER WORDS, WE MUST DEAL IN DEGREES IN THIS
TROUBLESOME AREA.  THE QUESTION WHETHER SOME SORT OF IMMUNITY IS
REQUIRED AS A CONDITION OF COMPELLED SELF-REPORTING INESCAPABLY
REQUIRES AN EVALUATION OF THE ASSERTEDLY NON-CRIMINAL GOVERNMENTAL
PURPOSE IN SECURING THE INFORMATION, AND THE NATURE OF THE DISCLOSURES
REQUIRED.  SEE GENERALLY MANSFIELD, THE ALBERTSON CASE:  CONFLICT
BETWEEN THE PRIVILEGE AGAINST SELF-INCRIMINATION AND THE GOVERNMENT'S
NEED FOR INFORMATION, 1966 SUP.CT.REV.  103, 128-160.     THE STATUTORY
SCHEMES INVOLVED IN MARCHETTI AND RELATED CASES, SEE N. 8, SUPRA,
FOCUSED ALMOST EXCLUSIVELY ON CONDUCT WHICH WAS CRIMINAL.  AS THE
OPINION OF THE CHIEF JUSTICE POINTS OUT, THE GAMBLING ACTIVITIES
INVOLVED IN MARCHETTI AND GROSSO WHICH GAVE RISE TO THE OBLIGATION TO
REPORT UNDER THAT STATUTORY SCHEME WERE ILLEGAL UNDER FEDERAL LAW AND
THE LAWS OF ALMOST EVERY STATE IN THE UNION.  SEE MARCHETTI, SUPRA, AT
44-46.  INDEED, MR. JUSTICE BRENNAN'S CONCURRING OPINION IN MARCHETTI
AND GROSSO, SUPRA, AT 74-75, CONCISELY SETS FORTH THE PRECISE DEGREE OF
FOCUS ON CRIMINAL BEHAVIOR AS THE PREDICATE FOR STATE COMPULSION TO
REPORT INFORMATION: 

     "THE COURT'S OPINIONS FULLY ESTABLISH THE STATUTORY SYSTEM'S

  IMPERMISSIBLE INVASIONS OF THE PRIVILEGE.  INDEED, 26 U.S.C. 4401

  SHOULD CREATE SUBSTANTIAL SUSPICION ON PRIVILEGE GROUNDS SIMPLY

BECAUSE IT IS AN EXCISE TAX UPON PERSONS 'ENGAGED IN THE BUSINESS

  OF ACCEPTING WAGERS' OR WHO CONDUCT 'ANY WAGERING POOL OR

  LOTTERY.'  THE PERSONS AFFECTED BY THIS LANGUAGE ARE A RELATIVELY

  SMALL GROUP, MANY OF WHOM ARE ENGAGED IN ACTIVITIES MADE UNLAWFUL

  BY STATE AND FEDERAL STATUTES.  BUT SEC. 4401 IS ACTUALLY EVEN

  MORE DIRECTLY CONFINED TO THAT GROUP.  SECTION 4402(1) EXEMPTS

  FROM THE TAX WAGERS PLACED WITH A PARIMUTUEL WAGERING ENTERPRISE

  'LICENSED UNDER STATE LAW,' AND SEC. 4421 DEFINES 'WAGER' TO

  EXCLUDE MOST FORMS OF UNORGANIZED GAMBLING SUCH AS DICE AND

POKER, AND DEFINES 'LOTTERY' TO EXCLUDE COMMONLY PLAYED GAMES

  SUCH AS BINGO AND DRAWINGS CONDUCTED BY CERTAIN TAX-EXEMPT

  ORGANIZATIONS.  THE EFFECT OF THESE EXCEPTIONS IS TO LIMIT THE

  WAGERING EXCISE TAX UNDER SEC. 4401 ALMOST EXCLUSIVELY TO

  ILLEGAL, ORGANIZED GAMBLING. 

     "MOREOVER THE CODE CONTEMPLATES EXTENSIVE RECORDKEEPING

  REPORTING BY PERSONS OBLIGATED TO PAY THE TAX.  BUT THESE ARE

RECORDS AND REPORTS WHICH WOULD INCRIMINATE OVERWHELMINGLY. 

  SECTION 6011(A) REQUIRES ANY PERSON LIABLE TO PAY A TAX TO FILE A

  RETURN IN ACCORDANCE WITH THE FORMS AND REGULATIONS PROMULGATED

  BY THE SECRETARY OR HIS DELEGATE.  THE REGULATIONS PROMULGATING

  RECORD-KEEPING REQUIREMENTS AND THE REQUIREMENT THAT TAXPAYERS

  MAKE A MONTHLY RETURN ON FORM 730 . . . WERE THEREFORE FORMULATED

  PURSUANT TO SPECIFIC CONGRESSIONAL AUTHORITY.  THAT THE RETURN IS

  INTENDED TO BE A PART OF THE WAGERING TAX OBLIGATION IS CLEAR

 FROM THE FACE OF THE RETURN ITSELF.  . . ." 

ALTHOUGH COMPELLED SELF-REPORTING IS CERTAINLY ESSENTIAL TO THE TAXING
POWER, THE DECISION TO COLLECT TAXES THROUGH A SPECIAL REGULATORY
SCHEME WHICH CONDITIONS THE OBLIGATION TO REPORT ON INTENT TO COMMIT A
CRIME OR THE ACTUAL COMMISSION OF A CRIME REPRESENTS A DETERMINATION TO
PURSUE NONCRIMINAL GOVERNMENTAL PURPOSES TO THE ENTIRE EXCLUSION OF THE
VALUES PROTECTED BY THE FIFTH AMENDMENT.  CF. GROSSO, SUPRA, AT 76
(BRENNAN, J., CONCURRING).  IN A VERY REAL SENSE, COMPLIANCE WITH THE
STATUTORY REQUIREMENTS INVOLVED IN MARCHETTI AND GROSSO, FOLLOWED BY
USE OF THE INFORMATION IN A PROSECUTION, REDUCED THE "ACCUSATORIAL
SYSTEM" TO THE ROLE OF A MERELY RITUALISTIC CONFIRMATION OF THE
"CONVICTION" SECURED THROUGH THE EXERCISE OF THE TAXING POWER.  THOSE
STATUTORY SCHEMES ARE HARDLY DISTINGUISHABLE FROM A GOVERNMENTAL SCHEME
REQUIRING ROBBERS TO REGISTER AS SUCH FOR PURPOSES OF PAYING AN
OCCUPATIONAL TAX AND A TAX ON THE PROCEEDS OF THEIR CRIMES.  CF. MY
BROTHER BRENNAN'S OPINION IN THE INSTANT CASE, POST, AT 473. 

IN CONTRAST, THE "HIT AND RUN" STATUTE IN THE PRESENT CASE
PREDICATES THE DUTY TO REPORT ON THE OCCURRENCE OF AN EVENT WHICH
CANNOT, WITHOUT SIMPLY DISTORTING AS "INHERENTLY SUSPECT"; I.E.,
INVOLVEMENT IN AN AUTOMOBILE ACCIDENT WITH PROPERTY DAMAGE.  AND,
HAVING INITIALLY SPECIFIED THE REGULATED EVENT-- I.E., AN AUTOMOBILE
ACCIDENT INVOLVING PROPERTY DAMAGE-- IN THE BROADEST TERMS POSSIBLE
CONSISTENT WITH THE REGULATORY SCHEME'S CONCEDEDLY NONCRIMINAL PURPOSE,
THE STATE HAS CONFINED THE PORTION OF THE SCHEME NOW BEFORE US, SEE N.
1 OF THE CHIEF JUSTICE'S OPINION, TO THE MINIMAL LEVEL OF DISCLOSURE OF
INFORMATION CONSISTENT WITH THE USE OF COMPELLED SELF-REPORTING IN THE
REGULATION OF DRIVING BEHAVIOR.  SINCE THE STATE COULD-- IN THE CONTEXT
OF A REGULATORY SCHEME INCLUDING AN OTHERWISE BROAD DEFINITION OF THE
REGULATED EVENT-- ACHIEVE THE SAME DEGREE OF FOCUS ON CRIMINAL CONDUCT
THROUGH DETAILED REPORTING REQUIREMENTS AS WAS ACHIEVED IN MARCHETTI
AND GROSSO THROUGH THE DEFINITION OF THE EVENT TRIGGERING THE REPORTING
DUTIES OF THE GAMBLING TAX SCHEME, THE COURT MUST TAKE COGNIZANCE OF
THE LEVEL OF DETAIL REQUIRED IN THE REPORTING PROGRAM AS WELL AS THE
CIRCUMSTANCES GIVING RISE TO THE DUTY TO REPORT; OTHERWISE, THE STATE,
POSSESSED AS IT IS OF INCREASINGLY SOPHISTICATED TECHNIQUES OF
INFORMATION GATHERING AND STORAGE, WILL, IN THE ZEALOUS PURSUIT OF ITS
NONCRIMINAL REGULATORY GOALS, REDUCE THE "ACCUSATORIAL SYSTEM"  WHICH
THE FIFTH AMENDMENT IS INTENDED TO SECURE TO A HALLOW RITUAL. 

CALIFORNIA'S DECISION TO COMPEL BYERS TO STOP AFTER HIS ACCIDENT AND
IDENTIFY HIMSELF WILL NOT RELIEVE THE STATE OF THE DUTY TO DETERMINE,
ENTIRELY BY VIRTUE OF ITS OWN INVESTIGATION AFTER THE COERCED STOP,
WHETHER OR NOT ANY ASPECT OF BYER'S BEHAVIOR WAS CRIMINAL.  NOR WILL IT
RELIEVE THE STATE OF THE DUTY TO DETERMINE WHETHER THE ACCIDENT WHICH
BYERS WAS FORCED TO ADMIT INVOLVEMENT IN WAS PROXIMATELY RELATED TO THE
ASPECT OF HIS DRIVING BEHAVIOR THOUGHT TO BE CRIMINAL.  /9/  IN SHORT,
BYERS HAVING ONCE FOCUSED ATTENTION ON HIMSELF AS AN ACCIDENT
PARTICIPANT, THE STATE MUST STILL BEAR THE BURDEN OF MAKING THE MAIN
EVIDENTIARY CASE AGAINST BYERS AS A VIOLATOR OF SEC. 21750 OF THE
CALIFORNIA VEHICLE CODE.  /10/  TO CHARACTERIZE THIS BURDEN AS A MERELY
RITUALISTIC CONFIRMATION OF THE "CONVICTION" SECURED THROUGH COMPLIANCE
WITH THE REPORTING REQUIREMENT IN ISSUE WOULD BE A GROSS DISTORTION OF
REALITY; ON THE OTHER HAND, THAT CHARACTERIZATION OF THE EVIDENTIARY
BURDEN REMAINING ON THE STATE AND FEDERAL GOVERNMENTS AFTER COMPLIANCE
WITH THE REGULATORY SCHEME INVOLVED IN MARCHETTI AND GROSSO SEEMS
PROPER. 

    VI 

CONSIDERING THE NONCRIMINAL GOVERNMENTAL PURPOSE IN SECURING THE
INFORMATION, THE NECESSITY FOR SELF-REPORTING AS A MEANS OF SECURING
THE INFORMATION, AND THE NATURE OF THE DISCLOSURES INVOLVED, I CANNOT
SAY THAT THE PURPOSES OF THE FIFTH AMENDMENT WARRANT IMPOSITION OF A
USE RESTRICTION AS A CONDITION ON THE ENFORCEMENT OF THIS STATUTE.  TO
HOLD OTHERWISE WOULD, IT SEEMS TO ME, EMBARK US ON UNCHARTED AND
TREACHEROUS SEAS.  THERE WILL UNDOUBTEDLY BE OTHER STATUTORY SCHEMES
UTILIZING COMPELLED SELF-REPORTING AND IMPLICATING BOTH PERMISSIBLE
STATE OBJECTIVES AND THE VALUES OF THE FIFTH AMENDMENT WHICH WILL
RENDER THIS DETERMINATION MORE DIFFICULT TO MAKE.  A DETERMINATION OF
THE STATUS OF THOSE REGULATORY SCHEMES MUST, OF COURSE, AWAIT A PROPER
CASE. 

ON THE PREMISES SET FORTH IN THIS OPINION, I CONCUR IN THE JUDGMENT
OF THE COURT.  /11/ 

/1/  THE TEXT OF SEC. 20002(A) IS REPRODUCED IN THE CHIEF JUSTICE'S
OPINION, ANTE, AT 426.  SECTION 21750 OF THE CAL. VEHICLE CODE
PROVIDES: 

"THE DRIVER OF A VEHICLE OVERTAKING ANOTHER VEHICLE PROCEEDING IN
THE SAME DIRECTION SHALL PASS TO THE LEFT AT A SAFE DISTANCE WITHOUT
INTERFERING WITH THE SAFE OPERATION OF THE OVERTAKEN VEHICLE.  . . ." 

/2/  HE THEN WENT ON TO SAY THAT THE QUESTION NEED NOT BE REACHED
BECAUSE THERE THE DEFENDANT HAD DECLINED TO MAKE ANY RETURN AT ALL. 
ID., AT 264. 

/3/ UNDERSTANDABLY, MR. JUSTICE BRENNAN RECEDES FROM THE
IMPLICATIONS OF HIS POSITION AS APPLIED TO THE FACTS IN THE SULLIVAN
CASE.  THUS, WHILE CONCEDING THAT ON HIS PREMISES THE PRIVILEGE WOULD
HAVE TO APPLY "IF DISCLOSURE OF THE AMOUNT OF INCOME CRIMINALLY EARNED
WOULD CREATE A NOT INSUBSTANTIAL RISK OF INCRIMINATION IN ANY
PARTICULAR CASE . . ."  HE AVERS THAT "(SINCE THE AMOUNT OF INCOME
EARNED BY AN INDIVIDUAL ENGAGED IN CRIME IS USUALLY NEITHER RELEVANT TO
HIS PROSECUTION FOR SUCH CRIMES NOR HELPFUL TO POLICE AUTHORITIES IN
DETERMINING THAT HE COMMITTED CRIMES, (HOLMES, J.'S, SUGGESTION THAT
THE PRIVILEGE WOULD NOT APPLY TO REPORT OF INCOME EARNED) WOULD SEEM .
. . LOGICAL.  . . ."  OPINION OF MR. JUSTICE BRENNAN, POST, AT 471 N.
7. 

THAT, HOWEVER, WILL NOT DO.  MR. JUSTICE HOLMES' SUGGESTION RELATED
TO THE PARTICULAR CASE OF A DEFENDANT WHOSE INCOME WAS EARNED ENTIRELY
OR LARGELY FROM BUSINESS IN VIOLATION OF THE NATIONAL PROHIBITION ACT. 
SULLIVAN, SUPRA, AT 262-263.  I CANNOT TREAT AS "IMAGINARY" SUCH A
DEFENDANT'S FEAR THAT SUPPLYING THE GOVERNMENT WITH A STATEMENT OF THE
AMOUNT OF MONEY DERIVED FROM HIS CRIME WILL-- WHEN COMBINED WITH OTHER
EVIDENCE PERHAPS IN THE GOVERNMENT'S HANDS-- PROVE HELPFUL IN SECURING
HIS CONVICTION FOR THOSE CRIMES.  THAT, OF COURSE, IS THE TEST MR.
JUSTICE BRENNAN MUST-- CONSISTENTLY WITH HIS PREMISES-- APPLY.  SEE
UNITED STATES V. BURR, 25 F.CAS.  38, 40 (NO. 14,692E) (CC VA. 1807);
HOFFMAN V. UNITED STATES, 341 U.S. 479 (1951).  AND SINCE, ON MR.
JUSTICE BRENNAN'S PREMISES, HE MUST JUDGE THE VALIDITY OF THE CLAIM OF
PRIVILEGE WHOLLY FROM THE DEFENDANT'S POINT OF VIEW AT THE TIME HE
FACES THE DECISION WHETHER OR NOT TO YIELD TO GOVERNMENTAL COMPULSION
AND SUPPLY THE INFORMATION, THE ISSUE CANNOT TURN ON WHETHER OR NOT THE
RECORD AS SUBSEQUENTLY DEVELOPED IN A PROSECUTION FOR INCOME TAX
EVASION SHOWS THAT THE GOVERNMENT ACTUALLY HAD ADDITIONAL INFORMATION
ON THE DEFENDANT'S CRIMINAL ACTIVITIES. 

ASSUMING, THEN, THAT SULLIVAN'S CLAIM OF PRIVILEGE WOULD HAVE TO BE
RESPECTED IF WE ARE TO TRANSPOSE IPSO FACTO THE COURT'S FIFTH AMENDMENT
JURISPRUDENCE TO SELF-REPORTING REQUIREMENTS OF THIS SORT, MR. JUSTICE
BRENNAN'S POSITION FORCES THE GOVERNMENT TO CHOOSE BETWEEN TAXING THE
PROCEEDS OF CRIME AND ENFORCING THE CRIMINAL SANCTION RELEVANT TO THE
TRANSACTION GIVING RISE TO THOSE PROCEEDS. 

I NOTE THAT THE QUESTION WHETHER THE FIFTH AMENDMENT REQUIRES
"TRANSACTIONAL" AS WELL AS "USE" IMMUNITY, EVEN IN THE CONTEXT OF THE
CRIMINAL PROCESS, HAS NOT BEEN RESOLVED BY THE COURT.  SEE PICCIRILLO
V. NEW YORK, 400 U.S. 548 (1971).  SEE ALSO MR. JUSTICE WHITE'S
CONCURRING OPINION IN MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 92
(1964). 

/4/  THAT IS A MOST DIFFICULT POSITION TO MAINTAIN.  BY COMPELLING
BYERS TO STOP, THE STATE COMPELLED BYERS TO FOCUS OFFICIAL ATTENTION ON
HIMSELF IN CIRCUMSTANCES WHICH, I AGREE, INVOLVED FOR BYERS A
SUBSTANTIAL RISK OF SELF-INCRIMINATION.  IN THIS CIRCUMSTANCE, THE
STATE, IF IT IS TO PROSECUTE BYERS AFTER THE COERCED STOP, WILL BEAR
THE BURDEN OF PROVING THAT THE STATE COULD HAVE SELECTED BYERS OUT FROM
THE GENERAL CITIZENRY FOR PROSECUTION EVEN IF HE HAD NOT STOPPED.  WITH
RESPECT TO AUTOMOBILE DRIVERS, THAT WOULD BE A HEAVY BURDEN INDEED.  I
DOUBT THIS BURDEN COULD BE MET IN MOST CASES OF THIS SORT CONSISTENT
WITH A GOOD-FAITH JUDICIAL APPLICATION OF THE RULES RELATING TO PROOF
OF AN INDEPENDENT SOURCE OF EVIDENCE. 

/5/  SEE FRIENDLY, THE FIFTH AMENDMENT TOMORROW:  THE CASE FOR
CONSTITUTIONAL CHANGE, 37 U.CIN.L.REV.  671, 687-690 (1968). 

/6/  MR. JUSTICE BRENNAN MAINTAINS THAT THE STATE GOVERNMENTAL
INTEREST IN ENSURING PERSONAL FINANCIAL RESPONSIBILITY FOR AUTOMOBILE
ACCIDENTS IS INDISTINGUISHABLE FROM THE ORDINARY CIVIL LAWSUIT
CONTEXT.  SEE POST, AT 476-477.  THAT ASSERTION TRULY DOES FLOUT THE
STATE'S ASSESSMENT OF ITS OWN INTERESTS; SEC. 20002(A) IS ONLY A PART
OF A COMPREHENSIVE SELF-REPORTING SCHEME FOR ALL CLASSES OF AUTOMOBILE
ACCIDENTS CAUSING HARM TO OTHERS.  SEE GENERALLY CAL. VEHICLE CODE
SECS. 20001-200012.  THE CALIFORNIA SUPREME COURT INFORMS US THAT THIS
LEGISLATIVE SCHEME IS RELATED IN COVERAGE AND INTENT TO THE STATE
FINANCIAL RESPONSIBILITY LAW.  (VEHICLE CODE, SECS. 16000-16553); SEE
BYERS V. JUSTICE COURT, SUPRA, AT 1054-1055, 458 P.2D, AT 475-476.  THE
PREMISE OF THAT COURT'S DECISION TO SUBSTITUTE THE CONCEDEDLY LESS
COMPLETE PROTECTION OF A USE RESTRICTION FOR THE OUTRIGHT PRIVILEGE NOT
TO DISCLOSE-- PRESUMABLY AVAILABLE IN THE ORDINARY CIVIL LAWSUIT
CONTEXT-- CAN ONLY BE THAT THE STATE'S INTEREST IN SECURING PERSONAL
FINANCIAL RESPONSIBILITY FOR AUTOMOBILE ACCIDENTS IS SUFFICIENTLY
DISTINGUISHABLE FROM THE GENERAL GOVERNMENTAL INTEREST IMPLICATED IN
THE MAINTENANCE OF ORDERLY DISPUTE SETTLEMENT MECHANISMS TO JUSTIFY THE
STATE'S RELIANCE ON COMPELLED SELF-SELECTION AS A PARTY INVOLVED IN
EVENTS CAUSING HARM TO OTHERS.  IN VIEW OF THE PRESENCE OF SIMILAR
STATUTES IN EVERY STATE OF THE UNION AND THE DISTRICT OF COLUMBIA, I DO
NOT UNDERSTAND MR. JUSTICE BRENNAN'S ASSERTION THAT THIS PREMISE IS
"ARTIFICIAL" IF NOT "DISINGENUOUS."  POST, AT 477. 

/7/  MY BROTHER BRENNAN'S PRIMARY RESPONSE TO MY VIEW THAT
SIGNIFICANT INTERFERENCE WITH STATE REGULATORY GOALS UNRELATED TO THE
DETERRENCE OF ANTISOCIAL BEHVAIOR THROUGH CRIMINAL SANCTIONS MAY MEAN
THAT THERE IS NO FIFTH AMENDMENT PRIVILEGE EVEN THOUGH FROM THE
INDIVIDUAL'S POINT OF VIEW THERE ARE "REAL" AND NOT "IMAGINARY" RISKS
OF SELF-INCRIMINATION IS A CITATION TO MR. JUSTICE BRANDEIS'
DISTINGUISHED DISSENTING OPINION IN OLMSTEAD V. UNITED STATES, 277 U.S.
438, 472-477 (1928).  BRANDEIS' VIEWS WERE EXPRESSED IN THE CONTEXT OF
A CASE WHERE NO SUCH GOVERNMENTAL INTEREST COULD BE SAID TO BE
IMPLICATED; TO SEVER THOSE VIEWS FROM THEIR CONTEXT AND TRANSPOSE THEM
IPSO FACTO TO THE PROBLEM AT HAND IS TO SLIDE SOFTLY INTO THAT "LAKE OF
GENERALITIES" FROM WHICH CONFUSION IS SURE TO FLOW.  CF. OPINION OF MR.
JUSTICE BRENNAN, POST, AT 469.     /8/  MARCHETTI V. UNITED STATES, 390
U.S. 39 (1968); GROSSO V. UNITED STATES, 390 U.S. 62 (1968); HAYNES V.
UNITED STATES, 390 U.S. 85 (1968); LEARY V. UNITED STATES, 395 U.S. 6
(1969). 

/9/  IT BEARS REPEATING THAT BYERS WAS CHARGED WITH PASSING ANOTHER
VEHICLE AT AN UNSAFE DISTANCE, SEE N. 1, SUPRA; HE WAS NOT CHARGED WITH
BEING INVOLVED IN AN AUTOMOBILE ACCIDENT CAUSING PROPERTY DAMAGE. 
ALTHOUGH THE CALIFORNIA SUPREME COURT DID NOT DEAL WITH SEC. 21750 OF
THE VEHICLE CODE, WE MAY ASSUME THAT THE FACT OF THE ACCIDENT BECOMES
RELEVANT TO THE ILLEGAL PASSING CHARGE ONLY IF THE ALLEGEDLY UNSAFE
ASPECTS OF BYERS' PASSING WAS THE PROXIMATE CAUSE OF THE RESULTING
ACCIDENT.  OF COURSE, THE PARTIES IN THE INSTANT LITIGATION STIPULATED
TO THAT EFFECT.  SEE APP. 36.  THAT STIPULATION CERTAINLY SUPPORTS THE
CONCLUSION THAT BYERS FACED A "REAL" AND NOT "IMAGINARY" RISK OF SELF
INCRIMINATION AT THE TIME HE HAD TO MAKE HIS DECISION WHETHER OR NOT TO
STOP.  BUT ON MY ANALYSIS THE PRESENCE OF SUCH RISKS IS NOT A
SUFFICIENT PREDICATE FOR THE ASSERTION OF THE PRIVILEGE IN THIS
REGULATORY CONTEXT; WE MUST ALSO CONSIDER THE IMPACT ON THE
"ACCUSATORIAL SYSTEM" OF PERMITTING THE STATE TO UTILIZE THE FRUITS OF
THE COERCED STOP IN A SUBSEQUENT PROSECUTION.  FOR THAT PURPOSE, THE
POST HOC STIPULATION OF THE PARTIES AS TO THE LEGAL CAUSE OF THE
ACCIDENT IN A SUBSEQUENT PROSECUTION FOR FAILING TO STOP IS
IRRELEVANT. 

/10/  I DO NOT MINIMIZE THE AID GIVEN THE STATE OF CALIFORNIA BY
VIRTUE OF THE REQUIREMENT TO STOP AND IDENTIFY ONESELF.  BUT THIS
MINIMAL REQUIREMENT IS ESSENTIAL TO THE STATE'S NONPROSECUTORIAL GOAL,
AND, THE STOP HAVING BEEN ONCE COERCED, VIRTUALLY ALL INFORMATION
SECURED AFTER THE STOP IS LIKELY TO BE TAINTED FOR PURPOSES OF
EXCLUSION UNDER THE FIFTH AMENDMENT IN ANY SUBSEQUENT PROSECTION.  SEE
N. 4, SUPRA. 

/11/  MY BROTHER BRENNAN, RELYING ON RALEY V. OHIO, 360 U.S. 423
(1959), APPARENTLY TAKES THE POSITION THAT BECAUSE I DO AGREE THAT
MARCHETTI AND GROSSO COULD FAIRLY BE READ TO SUPPORT RESPONDENT BYERS'
REFUSAL TO COMPLY WITH SEC. 20002(A) ON FIFTH AMENDMENT GROUNDS, I AM
CONSTRAINED TO HOLD THAT, AS A MATTER OF FEDERAL DUE PROCESS, BYERS
CANNOT BE PROSECUTED BY THE STATE.  SEE POST, AT 477.  ON THE PREMISES
SET FORTH IN MY OPINION, BYERS' POSITION IS ANALYTICALLY
INDISTINGUISHABLE FROM THAT OF ANY INDIVIDUAL WHOSE CLAIM OF
CONSTITUTIONAL PRECEDENT.  RALEY, OF COURSE, RECOGNIZED SUCH A DUE
PROCESS RIGHT IN A FACTUAL SETTING INVOLVING A GREAT DEAL MORE THAN
RETROACTIVE APPLICATION OF A JUDICIAL RULING LIMITING PRIOR
CONSTITUTIONAL PRECEDENT. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

SINCE THE DAYS OF CHIEF JUSTICE JOHN MARSHALL THIS COURT HAS BEEN
STEADFASTLY COMMITTED TO THE PRINCIPLE THAT THE FIFTH AMENDMENT'S
PROHIBITION AGAINST COMPULSORY SELF-INCRIMINATION FORBIDS THE FEDERAL
GOVERNMENT TO COMPEL A PERSON TO SUPPLY INFORMATION WHICH CAN BE USED
AS A "LINK IN THE CHAIN OF TESTIMONY" NEEDED TO PROSECUTE HIM FOR A
CRIME.  UNITED STATES V. BARR, 25 F.CAS.  38, 40 (NO. 14,692E) (CC VA.
1807).  IT IS NOW ESTABLISHED THAT THE FOURTEENTH AMENDMENT MAKES THAT
PROVISION OF THE FIFTH AMENDMENT APPLICABLE TO THE STATES.  MALLOY V.
HOGAN, 378 U.S. 1 (1964).  THE PLURALITY OPINION, IF AGREED TO BY A
MAJORITY OF THE COURT, WOULD PRACTICALLY WIPE OUT THE FIFTH AMENDMENT'S
PROTECTION AGAINST COMPELLED SELF-INCRIMINATION.  THIS PROTECTIVE
CONSTITUTIONAL SAFEGUARD AGAINST ARBITRARY GOVERNMENT WAS FIRST MOST
CLEARLY DECLARED BY CHIEF JUSTICE MARSHALL IN THE TRIAL OF AARON BURR
IN 1807.  UNITED STATES V. BURR, SUPRA.  IN ERASING THIS PRINCIPLE FROM
THE CONSTITUTION THE PLURALITY OPINION RETREATS FROM A CHERISHED
GUARANTEE OF LIBERTY FASHIONED BY JAMES MADISON AND THE OTHER FOUNDERS
OF WHAT THEY PROUDLY PROCLAIMED TO BE OUR FREE GOVERNMENT.  ONE NEED
ONLY READ WITH CARE THE PAST CASES CITED IN TODAY'S OPINIONS TO
UNDERSTAND THE SHRINKING PROCESS TO WHICH THE COURT TODAY SUBJECTS A
VITAL SAFEGUARD OF OUR BILL OF RIGHTS. 

THE PLURALITY OPINION LABORS UNSUCCESSFULLY TO DISTINGUISH THIS CASE
FROM OUR PREVIOUS HOLDINGS ENFORCING THE FIFTH AMENDMENT GUARANTEE
AGAINST COMPELLED SELF-INCRIMINATION.  SEE, E.G., ALBERTSON V. SACB,
382 U.S. 70 (1965); GROSSO V. UNITED STATES, 390 U.S. 62 (1968);
MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968); LEARY V. UNITED STATES,
395 U.S. 6 (1969); HAYNES V. UNITED STATES, 390 U.S. 85 (1968).  THE
PLURALITY OPINION, ANTE, AT 431, APPEARS TO SUGGEST THAT THOSE PREVIOUS
CASES ARE NOT CONTROLLING BECAUSE RESPONDENT BYERS WOULD NOT HAVE
SUBJECTED HIMSELF TO A "SUBSTANTIAL RISK OF SELF-INCRIMINATION" BY
STOPPING AFTER THE ACCIDENT AND PROVIDING HIS NAME AND ADDRESS AS
REQUIRED BY CALIFORNIA LAW.  SEE CALIFORNIA VEHICLE CODE SEC.
20002(A)(1) (SUPP. 1971).  THIS SUGGESTION CAN HARDLY BE TAKEN
SERIOUSLY.  A CALIFORNIA DRIVER INVOLVED IN AN ACCIDENT CAUSING
PROPERTY DAMAGE IS IN FACT VERY LIKELY TO HAVE VIOLATED ONE OF THE
HUNDREDS OF STATE CRIMINAL STATUTES REGULATING AUTOMOBILES WHICH
CONSTITUTE MOST OF TWO VOLUMES OF THE CALIFORNIA CODE.  /1/  MORE
IMPORTANT, THE PARTICULAR FACTS OF THIS CASE DEMONSTRATE THAT BYERS
WOULD HAVE SUBJECTED HIMSELF TO A "SUBSTANTIAL RISK OF SELF
INCRIMINATION," ANTE, AT 431, HAD HE GIVEN HIS NAME AND ADDRESS AT THE
SCENE OF THE ACCIDENT.  HE HAS NOW BEEN CHARGED NOT ONLY WITH FAILING
TO GIVE HIS NAME BUT ALSO WITH PASSING WITHOUT MAINTAINING A SAFE
DISTANCE AS PROHIBITED BY CALIFORNIA VEHICLE CODE SEC. 21750 (SUPP.
1971).  IT IS STIPULATED THAT THE ALLEGEDLY IMPROPER PASSING CAUSED THE
ACCIDENT FROM WHICH BYERS LEFT WITHOUT STATING HIS NAME AND ADDRESS. 
IN A PROSECUTION UNDER SEC. 21750, THE STATE WILL BE REQUIRED TO PROVE
THAT BYERS WAS THE DRIVER WHO PASSED WITHOUT MAINTAINING A SAFE
DISTANCE.  THUS, IF BYERS HAD STOPPED AND PROVIDED HIS NAME AND ADDRESS
AS THE DRIVER INVOLVED IN THE ACCIDENT, THE STATE COULD HAVE USED THAT
INFORMATION TO ESTABLISH AN ESSENTIAL ELEMENT OF THE CRIME UNDER SEC.
21750.  IT SEEMS ABSOLUTELY FANCIFUL TO SUGGEST THAT HE WOULD NOT HAVE
FACED A "SUBSTANTIAL RISK OF SELF-INCRIMINATION," ANTE, AT 431, BY
COMPLYING WITH THE DISCLOSURE STATUTE. 

THE PLURALITY OPINION ALSO SEEKS TO DISTINGUISH THIS CASE FROM OUR
PREVIOUS DECISIONS ON THE GROUND THAT SEC. 20002(A)(1) REQUIRES
DISCLOSURE IN AN AREA NOT "PERMEATED WITH CRIMINAL STATUTES" AND
BECAUSE IT IS NOT AIMED AT A "HIGHLY SELECTIVE GROUP INHERENTLY SUSPECT
OF CRIMINAL ACTIVITIES."  ANTE, AT 430.  OF COURSE, THESE SUGGESTIONS
IGNORE THE FACT THAT THIS PARTICULAR RESPONDENT WOULD HAVE RUN A
SERIOUS RISK OF SELF-INCRIMINATION BY COMPLYING WITH THE DISCLOSURE
STATUTE.  FURTHERMORE, IT IS HARDLY ACCURATE TO SUGGEST THAT THE
ACTIVITY OF DRIVING AN AUTOMOBILE IN CALIFORNIA IS NOT "AN AREA
PERMEATED WITH CRIMINAL STATUTES."  IBID.  AND IT IS UNHELPFUL TO SAY
THE STATUTE IS NOT AIMED AT AN "INHERENTLY SUSPECT" GROUP BECAUSE IT
APPLIES TO "ALL PERSONS WHO DRIVE AUTOMOBILES IN CALIFORNIA."  IBID.
THE COMPELLED DISCLOSURE IS REQUIRED OF ALL PERSONS WHO DRIVE
AUTOMOBILES IN CALIFORNIA WHO ARE INVOLVED IN ACCIDENTS CAUSING
PROPERTY DAMAGE.  /2/  IF THIS GROUP IS NOT "SUSPECT" OF ILLEGAL
ACTIVITIES, IT IS DIFFICULT TO FIND SUCH A GROUP. 

THE PLURALITY OPINION PURPORTS TO RELY ON UNITED STATES V. SULLIVAN,
274 U.S. 259 (1927), TO SUPPORT ITS RESULT.  BUT SULLIVAN HELD ONLY
THAT A TAXPAYER COULD NOT DEFEAT A PROSECUTION FOR FAILURE TO FILE A
TAX RETURN ON THE GROUNDS THAT HIS INCOME WAS ILLEGALLY OBTAINED.  THE
COURT THERE SUGGESTED THAT THE DEFENDANT COULD LAWFULLY HAVE REFUSED TO
ANSWER PARTICULAR QUESTIONS ON THE RETUN IF THEY TENDED TO INCRIMINATE
HIM.  /3/  HERE, UNLIKE SULLIVAN, THE ONLY INFORMATION THAT THE STATE
REQUIRES BYERS TO DISCLOSE GREATLY ENHANCES THE PROBABILITY OF
CONVICTION FOR CRIME.  AS I HAVE POINTED OUT, IF BYERS HAD STOPPED AND
IDENTIFIED HIMSELF AS THE DRIVER OF THE CAR IN THE ACCIDENT, HE WOULD
HAVE HANDED THE STATE AN ADMISSION OF USE AGAINST HIM AT TRIAL ON A
CHARGE OF FAILING TO MAINTAIN A SAFE DISTANCE WHILE PASSING.  THUS,
BYERS' FAILURE TO STOP IS ANALOGOUS TO A REFUSAL TO ANSWER A PARTICULAR
INCRIMINATING QUESTION ON A TAX RETURN, AN ACT PROTECTED BY THE FIFTH
AMENDMENT UNDER THIS COURT'S DECISION IN SULLIVAN.  CF. MARCHETTI V.
UNITED STATES, SUPRA; GROSSO V. UNITED STATES, SUPRA. 

I ALSO FIND UNACCEPTABLE THE ALTERNATIVE HOLDING THAT THE CALIFORNIA
STATUTE IS VALID BECAUSE THE DISCLOSURES IT REQUIRES ARE NOT
"TESTIMONIAL" (WHATEVER THAT TERM MAY MEAN).  ANTE, AT 431.  EVEN
ASSUMING THAT THE FIFTH AMENDMENT PROHIBITS THE STATE ONLY FROM
COMPELLING A MAN TO PRODUCE "TESTIMONIAL" EVIDENCE AGAINST HIMSELF, THE
CALIFORNIA REQUIREMENT HERE IS STILL UNCONSTITUTIONAL.  WHAT EVIDENCE
CAN POSSIBLY BE MORE "TESTIMONIAL" THAN A MAN'S OWN STATEMENT THAT HE
IS A PERSONS WHO HAS JUST BEEN INVOLVED IN AN AUTOMOBILE ACCIDENT
INFLICTING PROPERTY DAMAGE?  NEITHER UNITED STATES V. WADE, 388 U.S.
218 (1967), NOR ANY OTHER CASE OF THIS COURT HAS EVER HELD THAT THE
STATE MAY CONVICT A MAN BY COMPELLING HIM TO ADMIT THAT HE IS GUILTY OF
CONDUCT CONSTITUTING AN ELEMENT OF A CRIME.  CF. UNITED STATES V. BURR,
SUPRA.  YET THE PLURALITY OPINION APPARENTLY APPROVES PRECISELY THAT
RESULT. 

MY BROTHER HARLAN'S OPINION MAKES IT CLEAR THAT TODAY THE COURT
"BALANCES" THE IMPORTANCE OF A DEFENDANT'S FIFTH AMENDMENT RIGHT NOT TO
BE FORCED TO HELP CONVICT HIMSELF AGAINST THE GOVERNMENT'S INTEREST IN
FORCING HIM TO DO SO.  AS IN PREVIOUS DECISIONS, THIS BALANCING
INEVITABLY RESULTS IN THE DILUTION OF CONSTITUTIONAL GUARANTEES.  SEE,
E.G., KONIGSBERG V. STATE BAR, 366 U.S. 36, 56 (1961) (BLACK, J.,
DISSENTING).  BY MY BROTHER HARLAN'S REASONING IT APPEARS THAT THE
SCOPE OF THE FIFTH AMENDMENT'S PROTECTION WILL NOW DEPEND ON WHAT VALUE
A MAJORITY OF NINE JUSTICES CHOOSES TO PLACE ON THIS EXPLICIT
CONSTITUTIONAL GUARANTEE AS OPPOSED TO THE GOVERNMENT'S INTEREST IN
CONVICTING A MAN BY COMPELLING SELF-INCRIMINATING TESTIMONY.  IN MY
VIEW, VESTING SUCH POWER IN JUDGES TO WATER DOWN CONSTITUTIONAL RIGHTS
DOES INDEED "EMBARK US" ON BROTHER HARLAN'S "UNCHARTED AND TREACHEROUS
SEAS."  ANTE, AT 458. 

I CAN ONLY ASSUME THAT THE UNARTICULATED PREMISE OF THE DECISION IS
THAT THERE IS SO MUCH CRIME ABROAD IN THIS COUNTRY AT PRESENT THAT BILL
OF RIGHT'S SAFEGUARDS AGAINST ARBITRARY GOVERNMENT MUST NOT BE
COMPLETELY ENFORCED.  I CAN AGREE THAT THERE IS TOO MUCH CRIME IN THE
LAND FOR US TO TREAT CRIMINALS WITH FAVOR.  BUT I CAN NEVER AGREE THAT
WE SHOULD DEPART IN THE SLIGHTEST WAY FROM THE BILL OF RIGHTS'
GUARANTEES THAT GIVE THIS COUNTRY ITS HIGH PLACE AMONG THE FREE NATIONS
OF THE WORLD.  IF WE AFFIRMED THE STATE SUPREME COURT, CALIFORNIA COULD
STILL REQUIRE PERSONS INVOLVED IN ACCIDENTS TO STOP AND GIVE THEIR
NAMES AND ADDRESSES.  THE STATE WOULD ONLY BE DENIED THE POWER TO
VIOLATE THE FIFTH AMENDMENT BY USING THE FRUITS OF SUCH COMPELLED
TESTIMONY AGAINST THEM IN CRIMINAL PROCEEDINGS.  INSTEAD OF CRITICIZING
THE SUPREME COURT OF CALIFORNIA FOR ITS RIGID PROTECTIONS OF INDIVIDUAL
LIBERTY, I WOULD WITHOUT MORE ADO AFFIRM ITS JUDGMENT. 

/1/  SEE CAL. VEHICLE CODE SECS. 1-42275 (1960) AND SUPP. 1971). 

/2/  "THE DRIVER OF ANY VEHICLE INVOLVED IN AN ACCIDENT RESULTING IN
DAMAGE TO ANY PROPERTY INCLUDING VEHICLES SHALL IMMEDIATELY STOP THE
VEHICLE AT THE SCENE OF THE ACCIDENT AND SHALL THEN AND THERE EITHER: 

"(1) LOCATE AND NOTIFY THE OWNER OR PERSON IN CHARGE OF SUCH PROPERTY
OF THE NAME AND ADDRESS OF THE DRIVER AND OWNER OF THE VEHICLE
INVOLVED, OR; 

"(2) LEAVE IN A CONSPICUOUS PLACE ON THE VEHICLE OR OTHER PROPERTY
DAMAGED A WRITTEN NOTICE GIVING THE NAME AND ADDRESS OF THE DRIVER.  .
. ."  CAL. VEHICLE CODE SEC. 20002(A). 

/3/  "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.  WE ARE NOT CALLED ON TO DECIDE WHAT, IF ANYTHING, HE MIGHT
HAVE WITHHELD.  MOST OF THE ITEMS WARRANTED NO COMPLAINT.  IT WOULD BE
AN EXTREME IF NOT AN EXTRAVAGANT APPLICATION OF THE FIFTH AMENDMENT TO
SAY THAT IT AUTHORIZED A MAN TO REFUSE TO STATE THE AMOUNT OF HIS
INCOME BECAUSE IT HAD BEEN MADE IN CRIME."  274 U.S. 259, 263-264. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

ALTHOUGH I HAVE JOINED BY BROTHER BLACK'S OPINION IN THIS CASE, THE
IMPORTANCE OF THE ISSUES INVOLVED AND THE WIDE RANGE COVERED BY THE TWO
OPINIONS SUPPORTING THE COURT'S JUDGMENT IN THIS CASE MAKE FURTHER
COMMENT DESIRABLE.  PUT BRIEFLY, ONE OF THE PRIMARY FLAWS OF THE
PLURALITY OPINION IS THAT IT BEARS SO LITTLE RELATIONSHIP TO THE CASE
BEFORE US.  NOTWITHSTANDING THE FACT THAT RESPONDENT WAS CHARGED BOTH
WITH A VIOLATION OF THE CALIFORNIA VEHICLE CODE WHICH RESULTED IN AN
ACCIDENT, AND WITH FAILING TO REPORT THE ACCIDENT AND ITS SURROUNDING
CIRCUMSTANCES AS REQUIRED BY THE STATUTE UNDER REVIEW, THE PLURALITY
CONCLUDES, CONTRARY TO ALL THREE CALIFORNIA COURTS BELOW, THAT
RESPONDENT WAS FACED WITH NO SUBSTANTIAL HAZARD OF SELF-INCRIMINATION
UNDER CALIFORNIA LAW.  MY BROTHER HARLAN, BY CONTRAST, RECOGNIZES THE
INADEQUACY OF ANY SUCH CONCLUSION.  IN HIS VIEW, OUR TASK IS TO MAKE
THE BILL OF RIGHTS "RELEVANT TO CONTEMPORARY CONDITIONS" BY SIMPLY NOT
APPLYING ITS PROVISIONS WHEN WE THINK THE CONSTITUTION ERRS.  ANTE, AT
454.  IN THE CONTEXT OF THE PRESENT CASE, THIS APPEARS TO MEAN THAT
CURRENT TECHNOLOGICAL PROGRESS ENABLING THE GOVERNMENT MORE EASILY TO
USE AN INDIVIDUAL'S COMPELLED STATEMENTS AGAINST HIM IN A CRIMINAL
PROSECUTION SHOULD BE MATCHED BY FRANK JUDICIAL CONTRACTION OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION LEST THE GOVERNMENT BE HINDERED IN
USING MODERN TECHNOLOGY FURTHER TO REDUCE INDIVIDUAL PRIVACY.  NEEDLESS
TO SAY, NEITHER OF THESE APPROACHES IS CONSISTENT WITH THE
CONSTITUTION.              I 

THIS CASE ARISES FROM AN ATTEMPT BY THE STATE OF CALIFORNIA TO
PUNISH AN ASSERTION OF THE FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF
INCRIMINATION.  RESPONDENT BYERS WAS CHARGED WITH A STATUTORY DUTY TO
REPORT HIS INVOLVEMENT AS A DRIVER IN AN AUTO ACCIDENT INVOLVING
PROPERTY DAMAGE.  THIS HE REFUSED TO DO, AND CALIFORNIA SEEKS TO IMPOSE
CRIMINAL PUNISHMENT FOR HIS REFUSAL.  UNLIKE THE PLURALITY, I BELIEVE
THAT ANALYSIS OF THE QUESTION WHETHER CALIFORNIA MAY DO SO IS
INEVITABLY TIED TO THE CIRCUMSTANCES OF THIS CASE.  I THEREFORE TURN TO
THE RECORD. 

RESPONDENT WAS INTIALLY CHARGED IN JUSTICE COURT WITH TWO VIOLATIONS
OF CALIFORNIA LAW.  THE CRIMINAL COMPLAINT ALLEGED, FIRST, THAT HE
VIOLATED CALIFORNIA VEHICLE CODE SEC. 21750 (SUPP. 1971) BY IMPROPER
PASSING; AND SECOND, THAT HE WAS INVOLVED IN AN ACCIDENT CAUSING
PROPERTY DAMAGE AND FAILED TO REPORT HIS NAME, ADDRESS, AND THE
CIRCUMSTANCES OF THE ACCIDENT TO THE OTHER DRIVER INVOLVED AND THE
CALIFORNIA HIGHWAY PATROL.  CALIFORNIA VEHICLE CODE SEC. 20002, AS
AMENDED BY CAL. LAWS 1965, C. 872.  /1/  AFTER A DEMURRER TO THE
COMPLAINT WAS REJECTED, RESPONDENT SOUGHT A WRIT OF PROHIBITION TO
RESTRAIN PROSECUTION OF THE SECOND CHARGE OF THE COMPLAINT. 

THE CALIFORNIA SUPERIOR COURT DEALT WITH THE STATUTORY REPORTING
REQUIREMENT ONLY AS APPLIED TO RESPONDENT.  IT FOUND AS A FACT THAT THE
ALLEGED IMPROPER PASSING WITH WHICH RESPONDENT WAS CHARGED CAUSED THE
ACCIDENT THAT RESPONDENT WAS CHARGED WITH FAILING TO REPORT.  APP. 49. 
THE COURT FOUND IT "HARD TO IMAGINE A MORE DAMAGING LINK IN THE CHAIN
IN A PROSECUTION UNDER VEHICLE CODE SECTION 21750 THAN THAT WHICH
ESTABLISHES THAT THE DEFENDANT WAS DRIVING THE VEHICLE INVOLVED."  APP.
42.  SINCE ON THESE FACTS IT WAS "OBVIOUS," APP. 44, THAT RESPONDENT
FACED A SUBSTANTIAL HAZARD OF SELF-INCRIMINATION IF HE REPORTED THAT HE
WAS THE DRIVER OF ONE OF THE AUTOMOBILES INVOLVED IN THE ACCIDENT, THE
SUPERIOR COURT ISSUED THE WRIT TO RESTRAIN PROSECUTION FOR FAILURE TO
MAKE THE REPORT. 

THE CALIFORNIA COURT OF APPEALS ALSO DEALT WITH THE STATUTE ONLY AS
APPLIED TO RESPONDENT.  LIKE THE SUPERIOR COURT, IT FOUND IT "DIFFICULT
TO IMAGINE A MORE DAMAGING LINK IN THE CHAIN OF PROSECUTION" THAN THE
REQUIREMENT OF SEC. 20002 THAT RESPONDENT INFORM THE POLICE THAT HE WAS
THE DRIVER OF ONE OF THE VEHICLES INVOLVED IN THE ACCIDENT.  AS THE
COURT OF APPEAL PUT THE MATTER, "TO COMPEL (RESPONDENT) TO COMPLY WITH
(SEC. 20002) AND THUS TO ADMIT A FACT ESSENTIAL TO HIS CONVICTION OF A
VIOLATION OF SECTION 21750 IS TO COMPEL HIM TO GIVE A TESTIMONIAL
DECLARATION THAT FALLS DIRECTLY WITHIN THE SCOPE OF THE CONSTITUTIONAL
PRIVILEGE."  71 CAL.RPTR.  609, 612 (CT. APP. 1968).  IT CONCLUDED,
HOWEVER, THAT RESPONDENT COULD BE CRIMINALLY PUNISHED FOR HIS FAILURE
TO REPORT BECUASE THE FIFTH AMENDMENT PROHIBITED THE USE OF "ADMISSIONS
AND STATEMENTS MADE IN COMPLIANCE WITH" SEC. 20002 "IN A PROSECUTION
FOR A CRIMINAL OFFENSE ARISING OUT OF THE SAME COURSE OF CONDUCT." 
IBID.  IT REVERSED THE SUPERIOR COURT'S GRANT OF THE WRIT OF
PROHIBITION.  /2/ 

FINALLY, THE CALIFORNIA SUPREME COURT LIKEWISE DEALT WITH THE
STATUTE IN THE CONTEXT OF ITS APPLICATION TO RESPONDENT.  IT FIRST
IDENTIFIED THE "CRUCIAL INQUIRY IN DETERMINING THE APPLICABILITY OF THE
PRIVILEGE" AS 

"WHETHER THE INDIVIDUAL SEEKING TO AVOID DISCLOSURE FACES
'SUBSTANTIAL HAZARDS OF SELF-INCRIMINATION' BECAUSE IN HIS PARTICULAR
CASE THERE IS A SUBSTANTIAL LIKELIHOOD THAT INFORMATION DISCLOSED BY
HIM IN COMPLIANCE WITH THE STATUTE COULD BY ITSELF OR IN CONJUNCTION
WITH OTHER EVIDENCE BE USED TO SECURE HIS CONVICTION OF A CRIMINAL
OFFENSE."  71 CAL.2D 1039, 1043, 458 P.2D 465, 468 (1969).  SECOND, IT
CONSTRUED THE CALIFORNIA STATUTE IN QUESTION TO REQUIRE A PERSON TO
WHOM IT APPLIES TO REPORT NOT MERELY HIS NAME AND ADDRESS, BUT ALSO
THAT HE WAS THE DRIVER OF AN AUTOMOBILE INVOLVED IN A PARTICULAR
ACCIDENT.  71 CAL.2D,AT 1045, 458 P.2D, AT 470.  IT HELD THE PRIVILEGE
AGAINST SELF-INCRIMINATION APPLICABLE TO THE "DRIVER OF A MOTOR VEHICLE
INVOLVED IN AN ACCIDENT (WHO) IS CONFRONTED WITH (THE) STATUTORY
REQUIREMENT . . . (AND WHO) REASONABLY BELIEVES THAT COMPLIANCE WITH
THE STATUTE WILL RESULT IN SELF-INCRIMINATION."  ID., AT 1047, 458
P.2D, AT 471.  IT AGREED WITH THE TWO COURTS BELOW THAT RESPONDENT, AT
THE TIME OF THE ACCIDENT, "HAD REASONABLE GROUND TO APPREHEND THAT IF
HE STOPPED TO IDENTIFY HIMSELF AS REQUIRED . . . HE WOULD CONFRONT A
SUBSTANTIAL HAZARD OF SELF-INCRIMINATION."  ID., AT 1057, 458 P.2D, AT
477.  IT AGREED WITH THE COURT OF APPEAL, HOWEVER, THAT THE STATUTE
COULD AND SHOULD BE LIMITED BY RESTRICTING THE USE OF INFORMATION
ACQUIRED PURUSANT TO THE STATUTORY COMPULSION IN CIRCUMSTANCES WHERE
THE PARTICULAR INDIVIDUAL REPORTING COULD DEMONSTRATE A SUBSTANTIAL
RISK OF SELF-INCRIMINATION.  /3/  ID., AT 1050-1056, 458 P.2D, AT 472
477.  CONTRARY TO THE COURT OF APPEAL, HOWEVER, THE CALIFORNIA SUPREME
COURT FELT THAT IT WOULD BE UNFAIR TO PUNISH RESPONDENT WHEN HE COULD
HAVE HAD NO KNOWLEDGE THAT USE RESTRICTIONS WOULD BE APPLIED BY THE
COURTS.  ACCORDINGLY, IT AFFIRMED THE SUPERIOR COURT.  ID., AT 1057
1058, 458 P.2D, AT 477-478.  THE TWO DISSENTING JUSTICES TOOK ISSUE
WITH THE MAJORITY ONLY OVER THE QUESTION WHETHER RESPONDENT'S
PUNISHMENT WOULD BE UNFAIR.  ID., AT 1059-1060, 458 P.2D, AT 479. 

        II 

THE PLURALITY OPINION, UNFORTUNATELY, BEARS LITTLE RESEMBLANCE
EITHER TO THE FACTS OF THE CASE BEFORE US OR TO THE LAW UPON WHICH IT
RELIES.  CONTRARY TO THE PLURALITY OPINION, I DO NOT BELIEVE THAT WE
ARE CALLED UPON TO DETERMINE THE BROAD AND ABSTRACT QUESTION "WHETHER
THE CONSTITUTIONAL PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION IS
INFRINGED BY CALIFORNIA'S SO-CALLED 'HIT AND RUN' STATUTE /4/  WHICH
REQUIRES THE DRIVER OF A MOTOR VEHICLE INVOLVED IN AN ACCIDENT TO STOP
AT THE SCENE AND GIVE HIS NAME AND ADDRESS."  ANTE, AT 425.  I BELIEVE
WE ARE CALLED UPON TO DECIDE THE QUESTION PRESENTED BY THIS CASE, WHICH
IS WHETHER CALIFORNIA MAY PUNISH RESPONDENT, OVER HIS CLAIM OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION, FOR FAILING TO COMPLY WITH THE
STATUTORY REQUIREMENT THAT HE REPORT HIS NAME AND ADDRESS, AND THE FACT
THAT HE WAS THE DRIVER OF AN AUTOMOBILE INVOLVED IN THIS PARTICULAR
ACCIDENT.  DESPITE THE PLURALITY'S ASSURANCE THAT ITS "JUDICIAL
SCRUTINY IS . . . A CLOSE ONE," ANTE, AT 427, I BELIEVE THAT IN THE
COURSE OF EXPLAINING ITS OWN VIEWS REGARDING "DISCLOSURES WITH RESPECT
TO AUTOMOBILE ACCIDENTS" IN GENERAL, ANTE, AT 431, THE PLURALITY HAS
LOST SIGHT OF THE RECORD BEFORE US.  SEE ANTE, AT 427, 430-431. 
INSTEAD OF DEALING WITH THE "UNDERLYING CONSTITUTIONAL ISSUES IN CLEAN
CUT AND CONCRETE FORM, RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549,
584 (1947), THE PLURALITY SEEKS A BROAD GENERAL FORMULA TO RESOLVE THE
TENSIONS "BETWEEN THE STATE'S DEMAND FOR DISCLOSURES AND . . . THE
RIGHT AGAINST SELF-INCRIMINATION."  ANTE, AT 427.  BUT ONLY RIVERS OF
CONFUSION CAN FLOW FROM A LAKE OF GENERALITIES.  CF THE OPINION OF MY
BROTHER BLACK, ANTE, AT 460-461. 

MUCH OF THE PLURALITY'S CONFUSION APPEARS TO STEM FROM ITS
MISUNDERSTANDING OF THE LANGUAGE, EMBODIES IN SEVERAL OF THIS COURT'S
OPINIONS, REGARDING QUESTIONS "DIRECTED AT A HIGHLY SELECTIVE GROUP
INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES."  ALBERTSON V. SACB, 382
U.S. 70, 79, (1965); SEE MARCHETTI V. UNITED STATES, 390 U.S. 39, 47,
57 (1968).  THE PLURALITY SEEMS TO BELIEVE THAT MEMBERSHIP IN SUCH A
SUSPECT GROUP IS SOMEHOW AN INDISPENSABLE FOUNDATION FOR ANY FIFTH
AMENDMENT CLAIM.  SEE ANTE, AT 429-431.  OF COURSE, THIS IS NOT SO,
UNLESS THE PLURALITY IS NOW PREPARED TO ASSUME THAT MCCARTHY V.
ARNDSTEIN, 266 U.S. 34 (1924), COUNSELMAN V. HITCHCOCK, 142 U.S. 547
(1892), GARRITY V. NEW JERSEY, 385 U.S. 493 (1967), AND SPEVACK V.
KLEIN, 385 U.S. 511 (1967), WERE BASED, RESPECTIVELY, UPON THE
UNARTICULATED PREMISES THAT BANKRUPTS, BUSINESSMEN, POLICEMEN, AND
LAWYERS ARE ALL "GROUPS) INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES." 
INSTEAD, IN THE WORDS OF THE CALIFORNIA SUPREME COURT, "IN EACH CASE
THE CRIME-DIRECTED CHARACTER OF THE REGISTRATION REQUIREMENT WAS . . .
IMPORTANT ONLY INSOFAR AS IT SUPPORTED THE CLAIMS OF THE SPECIFIC
PETITIONERS THAT THEY FACED 'SUBSTANTIAL HAZARDS OF SELF-INCRIMINATION'
JUSTIFYING INVOCATION OF THE PRIVILEGE."  71 CAL.2D, AT 1043, 458
P.2D, AT 468.  THAT THIS IS SO EVIDENT FROM OUR EMPHASIS IN MARCHETTI
THAT "WE DO NOT HOLD THAT THESE WAGERING TAX PROVISIONS ARE AS SUCH
CONSTITUTIONALLY IMPERMISSIBLE.  . . . IF, IN DIFFERENT CIRCUMSTANCES,
A TAXPAYER IS NOT CONFRONTED BY SUBSTANTIAL HAZARDS OF SELF
INCRIMINATION . . . NOTHING WE DECIDE TODAY WOULD SHIELD HIM FROM THE
VARIOUS PENALITIES PRESCRIBED BY THE WAGERING TAX STATUTES."  390
U.S.,AT 61.  THE POINT IS THAT IN BOTH ALBERTSON AND MARCHETTI,
PETITIONERS ARRIVED IN THIS COURT ACCOMPANIED BY A RECORD SHOWING ONLY
THAT THEY HAD FAILED TO REGISTER, RESPECTIVELY, AS COMMUNISTS AND AS A
GAMBLER, AND THAT, IN FACT, THEY WERE SUCH.  SINCE NEITHER OF THESE
FACTS WAS NECESSARILY CRIMINAL, WE HAD TO DETERMINE WHETHER THE
PETITIONERS FACED "REAL AND APPRECIABLE" OR MERELY "IMAGINARY AND
UNSUBSTANTIAL"  /5/  HAZARDS WHEN THEY REFUSED TO REGISTER.  THAT THE
PETITIONERS BELONGED IN EACH CASE TO AN INHERENTLY SUSPECT GROUP WAS
RELEVEANT TO THAT QUESTION, AND THAT ALONE.  BY CONTRAST, IN THE
PRESENT CASE WE ARE DEALING WITH A RECORD WHICH DEMONSTRATES, AS FOUND
BY ALL THREE COURTS BELOW, THAT RESPONDENT WAS CHARGED BY CALIFORNIA
BOTH WITH ILLEGAL PASSING WHICH RESULTED IN AN ACCIDENT, AND WITH
FAILING TO REPORT HIMSELF AS ONE OF THE DRIVERS INVOLVED IN THAT
ACCIDENT.  IT IS HARD TO IMAGINE A RECORD DEMONSTRATING A MORE
SUBSTANTIAL HAZARD OF SELF-INCRIMINATION THAN THIS.  YET THE PLURALITY
SOMEHOW CONCLUDES THAT RESPONDENT DID NOT FACE THE "SUBSTANTIAL RISK OF
SELF-INCRIMINATION INVOLVED IN MARCHETTI."  /6/  ANTE, AT 431. 

THE PLURALITY OPINION ALSO PLACES GREAT RELIANCE UPON UNITED STATES
V. SULLIVAN, 274 U.S. 259 (1927).  I HAD UNDERSTOOD THAT CASE TO STAND
FOR THE PROPOSITION THAT ONE WHO DESIRED TO RAISE A FIFTH AMENDMENT
CLAIM TO PROTECT HIS REFUSAL TO PROVIDE INFORMATION REQUIRED BY THE
GOVERNMENT ON A TAX RETURN SHOULD MAKE SPECIFIC OBJECTION TO THE
PARTICULAR QUESTION ON THE RETURN.  SULLIVAN'S SOLE OBJECTION WAS TO
DISCLOSING THE AMOUNT OF HIS INCOME, ON THE GROUND THAT IT HAD BEEN
MADE IN CRIME; HE DID NOT CLAIM TO BE ENTITLED TO REFUSE TO DICLOSE HIS
NAME AND ADDRESS.  THE COURT SUGGESTED, ALTHOUGH IT DID NOT DECIDE,
THAT IT WOULD IN A PROPER CASE REJECT THE CLAIM AS TO AMOUNT OF
INCOME.  /7/  IT MAY BE THAT SULLIVAN ALSO STANDS FOR THE PROPOSITION
THAT AN INDIVIDUAL MAY NOT REFUSE, ON FIFTH AMENDMENT GROUNDS, TO FILE
A RETURN DISCLOSING HIS NAME AND ADDRESS, AND BY IMPLICATION DISCLOSING
THAT HE HAS EARNED SOME INCOME DURING THE PREVIOUS YEAR.  /8/  BUT THAT
QUESTION WAS NOT RAISED IN SULLIVAN, AND THE COURT EXPLICITLY NOTED
THAT IT WAS NOT CALLED UPON TO DECIDE WHAT INFORMATION COULD BE
WITHHELD; CERTAINLY I WOULD EXPECT THIS COURT TO HESITAGE BEFORE
AFFIRMING THE CONVICTION OF A FUGITIVE FROM JUSTICE FOR FILING A TAX
RETURN WHICH OMITTED HIS ADDRESS.  HOWEVER THAT MAY BE, I AM FRANKLY
UNABLE TO UNDERSTAND JUST WHAT THE PLURALITY THINKS THAT SULLIVAN
STANDS FOR.  RATHER THAN PURSUE THE MATTER FURTHER, I SIMPLY NOTE BELOW
THOSE PORTIONS OF THE SULLIVAN OPINION QUOTED, PARAPHRASED, OR OMITTED
IN THE PLURALITY OPINION.  PORTIONS THERE QUOTED ARE IN ROMAN TYPE;
PORTIONS THERE PARAPHRASED ARE ENCLOSED IN BRACKETS; PORTIONS THERE
OMITTED ARE IN ITALICS. 

  "AS THE DEFENDANT'S INCOME WAS TAXED, THE STATUTE OF COURSE

  REQUIRED A RETURN.  . . . 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.  WE

  ARE NOT CALLED ON TO DECIDE WHAT, IF ANYTHING, HE MIGHT HAVE

  WITHHELD.  . . . (IT WOULD BE) AN EXTREME IF NOT AN EXTRAVAGANT

  APPLICATION OF THE FIFTH AMENDMENT (TO SAY THAT IT AUTHORIZED A

  MAN TO REFUSE TO STATE THE AMOUNT OF HIS INCOME BECAUSE IT HAD

  BEEN MADE IN CRIME.)  BUT IF THE DEFENDANT DESIRED TO TEST THAT
OR

  ANY OTHER POINT HE SHOULD HAVE TESTED IT IN THE RETURN SO THAT IT

  COULD BE PASSED UPON."  UNITED STATES V. SULLIVAN, 274 U.S.,AT

  263-264. 

CF. THE PLURALITY OPINION, ANTE, AT 428-429, 433-434. 

I FIND EVEN LESS PERSUASIVE THE PLURALITY'S ALTERNATIVE SUGGESTION,
SEE ANTE, AT 431-434, THAT THE CALIFORNIA STATUTE INVOLVED HERE DOES
NOT REQUIRE INDIVIDUALS TO "PROVIDE THE STATE WITH 'EVIDENCE OF A
TESTIMONIAL OR COMMUNICATIVE NATURE' WITHIN THE MEANING OF THE
CONSTITUTION."  ANTE, AT 432.  TO BEGIN WITH, THE PLURALITY OPINION
STATES THAT "(COMPLIANCE WITH SEC. 20002(A)(1) REQUIRES TWO THINGS:
FIRST, A DRIVER INVOLVED IN AN ACCIDENT IS REQUIRED TO STOP AT THE
SCENE; SECOND, HE IS REQUIRED TO GIVE HIS NAME AND ADDRESS;" IT LATER
SUGGESTS THAT, CONCEIVABLY, "IT (COULD) BE . . . INFERRED" THAT SUCH A
DRIVER "WAS INDEED THE OPERATOR OF AN 'ACCIDENT INVOLVED' VEHICLE." 
ANTE, AT 431, 433.  BUT, THE PLURALITY OPINION CONTINUES, UNITED STATES
V. WADE, 388 U.S. 218, 221-223 (1967), REJECTS THE NOTION THAT "SUCH
INFERENCES ARE COMMUNICATIVE OR TESTIMONIAL."  ANTE, AT 433.  PUTTING
ASIDE THE PLURALITY'S MISREADING OF WADE, ADEQUATELY DEALT WITH BY MY
BROTHER HARLAN, ANTE, AT 435-436, THE INITIAL PROBLEM WITH THE
PLURALITY OPINION IS THAT IT ADOPTS A CONSTRUCTION OF THE CALIFORNIA
STATUTE THAT WAS EXPLICITLY REJECTED BY THE CALIFORNIA SUPREME COURT. 
THAT COURT SPECIFICALLY STATED THAT THE STATUTE INVOLVED HERE "REQUIRES
DRIVERS INVOLVED IN ACCIDENTS TO IDENTIFY THEMSELVES AS INVOLVED
DRIVERS."  71 CAL.2D, AT 1045, 458 P.2D, AT 470.  WE HAVE NO LICENSE TO
OVERRULE THE CALIFORNIA SUPREME COURT ON A QUESTION OF THE CONSTRUCTION
OF A CALIFORNIA STATUTE.  EVEN IF WE DID, HOWEVER, I WOULD STILL NOT BE
PERSUADED BY THE PLURALITY'S REASONING THAT SINCE "(DISCLOSURE OF NAME
AND ADDRESS IS AN ESSENTIALLY NEUTRAL ACT," ANTE, AT 432, ANY
INFERENCES WHICH MAY BE DRAWN FROM THAT DISCLOSURE ARE NOT
"COMMUNICATIVE OR TESTIMONIAL" IN NATURE.  ANTE, AT 432, 433. 
APPARENTLY THE PLURALITY BELIEVES THAT A STATUTE REQUIRING ALL ROBBERS
TO STOP AND LEAVE THEIR NAMES AND ADDRESSES WITH THEIR VICTIMS WOULD
NOT INVOLVE THE COMPULSION OF "COMMUNICATIVE OR TESTIMONIAL" EVIDENCE. 

        III 

SIMILARLY, I DO NOT BELIEVE THAT THE FORCE OF MY BROTHER BLACK'S
REASONING MAY BE AVOIDED BY MY BROTHER HARLAN'S APPROACH.  HE QUITE
CANDIDLY ADMITS THAT OUR PRIOR CASES COMPEL THE CONCLUSION THAT
RESPONDENT WAS ENTITLED TO RELY ON THE PRIVILEGE AGAINST SELF
INCRIMINATION AS A DEFENSE TO PROSECUTION FOR FAILURE TO STOP AND
REPORT HIS INVOLVEMENT IN AN ACCIDENT.  ANTE, AT 438-439.  HE WOULD
SIMPLY LIMIT THOSE CASES BECAUSE HE BELIEVES THAT TECHNOLOGICAL
PROGRESS HAS MADE THE PRIVILEGE AGAINST SELF-INCRIMINATION A "THREAT"
TO "REALISTIC" GOVERNMENT THAT WE CAN NO LONGER AFFORD.  /9/  TO THE
EXTENT THAT THIS ARGUMENT CALLS FOR REFUTATION, IT IS ADEQUATELY
DISPOSED OF IN MR. JUSTICE BRANDEIS' DISSENTING OPINION IN OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 472-477, 479 (1928).  OUR SOCIETY IS NOT
ENDANGERED BY THE FIFTH AMENDMENT.  "THE DANGERS OF WHICH WE MUST
REALLY BEWARE ARE . . . THAT WE SHALL FALL PREY TO THE IDEA THAT IN
ORDER TO PRESERVE OUR FREE SOCIETY SOME OF THE LIBERTIES OF THE
INDIVIDUAL MUST BE CURTAILED, AT LEAST TEMPORARILY.  HOW WRONG THAT
KIND OF A PROGRAM WOULD BE IS SURELY EVIDENT FROM THE MERESTATEMENT OF
THE PROPOSTION."  J. HARLAN, LIVE AND LET LIVE, IN THE EVOLUTION OF A
JUDICIAL PHILOSOPHY 285, 288 (D. SHAPRIRO ED. 1969). 

IN ANY EVENT MY BROTHER HARLAN'S OPIONION IS CONSISTENT NEITHER WITH
THE PRESENT RECORD NOR ITS OWN PREMISES.  AS TO THE FIRST, MY BROTHER
HARLAN APPEARS TO BELIEVE THAT THE IMPOSITION OF USE RESTRICTIONS ON
THE PRESENT STATUTE WOULD THREATEN THE CAPACITY OF CALIFORNIA "TO
RESPOND TO SOCIETAL NEEDS WITH A REALISTIC MIXTURE OF CRIMINAL
SANCTIONS AND OTHER REGULATORY DEVICES."  ANTE, AT 452.  IF SO, THIS
THREAT PASSED UNPERCEIVED BY THE CALIFORNIA SUPREME COURT:  THAT COURT
STATED THAT ITS IMPOSITION OF A USE RESTRICTION "WILL NEITHER FRUSTRATE
ANY APPARENT SIGNIFICANT LEGISLATIVE PURPOSE NOR UNDULY HAMPER CRIMINAL
PROSECUTIONS OF DRIVERS INVOLVED IN ACCIDENTS RESULTING IN DAMAGE TO
THE PROPERTY OF OTHERS."  71 CAL.2D, AT 1054, 458 P.2D, AT 475.  /10/
IT SEEMS TO HAVE PASSED UNNOTICED BY THE CALIFORNIA LEGISLATURE AS
WELL.  THE PRESENT STATUTE APPLIES TO DRIVERS INVOLVED IN ACCIDENTS
CAUSING PROPERTY DAMAGE.  CALIFORNIA VEHICLE CODE SEC. 20012 (SUPP.
1971) REQUIRES SIMILAR, ALBEIT MORE DETAILED, REPORTS FROM DRIVERS
INVOLVED IN ACCIDENTS RESULTING IN EITHER PERSONAL INJURY OR DEATH. 
YET THE CALIFORNIA LEGISLATURE ITSELF IMPOSED USE RESTRICTIONS UPON THE
USE OF SUCH REPORTS.  IBID.  /11/  IT IS ONE THING TO RESPECT A STATE'S
ASSERTION THAT IMPOSITION OF A PARTICULAR REQUIREMENT WILL UNDULY
HAMPTER A LEGITIMATE STATE INTEREST.  IT IS QUITE ANOTHER TO FLOUT THE
CONCLUSION OF THE STATE'S SUPREME COURT-- AND, SO FAR AS APPEARS, OF
THE STATE LEGISLATURE AS WELL-- THAT IMPOSITION OF A PARTICULAR
REQUIREMENT IS NOT AT ALL INCONSISTENT WITH THE ASSERTED STATE
INTERESTS. 

MOREOVER, I THINK MY BROTHER HARLAN'S OPINION FALLS ON ITS OWN
PREMISES.  FOR HE RECOGNIZES, AND APPARENTLY WOULD FOLLOW, OUR CASES
HOLDING THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION MAY BE CLAIMED BY
A WITNESS IN A NONCRIMINAL PROCEEDING WHO IS ASKED TO GIVE TESTIMONY
THAT MIGHT INDICATE HIS COMMISSION OF CRIME.  E.G., COUNSELMAN V.
HITCHCOCK, 142 U.S.,AT 562; MCCARTHY V. ARNDSTEIN, 266 U.S. 34 (1924);
HUTCHESON V. UNITED STATES, 369 U.S. 599 (1962) (HARLAN, J.).  SEE
ANTE, AT 450-451.  HE APPEARS TO BELIEVE THAT THESE CASES ARE DIFFERENT
FROM THE ONE BEFORE US, BECAUSE THEY INVOLVE INFORMATION "SOUGHT BY A
PRIVATE PARTY WHOLLY FOR PURPOSES OF RESOLVING A PRIVATE DISPUTE,"
ANTE, AT 450, WHERE NO "SPECIAL GOVERNMENTAL INTERESTS IN ADDITION TO
THE DETERRENCE OF ANTISOCIAL BEHAVIOR BY USE OF CRIMINAL SANCTIONS ARE
AFFECTED."  ANTE, AT 451.  YET THIS IS PRECISELY THE CASE BEFORE US.
FOR THE ONLY NONCRIMINAL INTEREST THAT HAS EVER BEEN ASSERTED TO
JUSTIFY THE CALIFORNIA REPORTING STATUTE AT ISSUE HERE IS THE STATE'S
INTEREST IN PROVIDING INFORMATION "SOUGHT BY A PRIVATE PARTY WHOLLY FOR
PURPOSES OF RESOLVING A PRIVATE DISPUTE."  OF COURSE, STATE POLICY IS
EXERCISED, IN PART, THROUGH THE RESOLUTION OF OTHERWISE PRIVATE
DISPUTES THROUGH THE JUDICIAL PROCESS.  BUT THIS IS TRUE OF EVERY CIVIL
CASE, WHETHER IT INVOLVES TORT LIABILITY FOR NEGLIGENT DRIVING, THE
ABILITY OF PRIVATE INDIVIDUALS TO INHERIT FROM ONE ANOTHER, LABINE V.
VINCENT, 401 U.S. 532 (1971), OR THE RIGHT OF PRIVATE PARTIES TO
DISSOLVE A PREVIOUS MARRIAGE, BODDIE V. CONNECTICUT, 401 U.S. 371
(1971) (HARLAN, J.).  TO DISTINGUISH THE ORDINARY "CIVIL LAWSUIT
COMTEXT," ANTE, AT 451, FROM THE CIVIL LAWSUIT CONTEXT IN WHICH THE
PRESENT STATUTE IS INVOLVED IS SIMPLY TO INDULGE IN THE SORT OF
"ARTIFICIAL, IF NOT DISINGENUOUS JUDGMENTS" AGAINST WHICH MY BROTHER
HARLAN'S OPINION OTHERWISE WARNS.  ANTE, AT 442. 

FINALLY, EVEN IF EVERYTHING ELSE IN MY BROTHER HARLAN'S OPINION BE
ACCEPTED, I CANNOT UNDERSTAND HIS CONCURRENCE IN THE JUDGMENT.  FOR THE
CALIFORNIA SUPREME COURT AGREED WITH HIS CONCLUSION THAT THE PRIVILEGE
AGAINST SELF-INCRIMINATION DOES NOT PROVIDE A DEFENSE TO AN INDIVIDUAL
WHO FAILS TO COMPLY WITH THE STATUTORY REPORTING REQUIREMENT.  71
CAL.2D, AT 1057, 458 P.2D, AT 477.  BUT IT NEVERTHELESS CONCLUDED THAT
RESPONDENT SHOULD NOT BE PUNISHED BECAUSE IT WOULD BE "UNFAIR" TO DO
SO.  71 CAL.2D, AT 1058, 458 P.2D, AT 478.  ALTHOUGH MY BROTHER HARLAN
CONCLUDES THAT THE FIFTH AMENDMENT DOES NOT EXCUSE COMPLIANCE WITH THE
CALIFORNIA REPORTING REQUIREMENTS FOR REASONS QUITE DIFFERENT FROM
THOSE RELIED UPON BY THE CALIFORNIA SUPREME COURT, THE POINT IS THAT
BOTH HAVE REACHED THE SAME CONCLUSION.  OF COURSE, WE HAVE ALREADY HELD
THAT DUE PROCESS IS DENIED AN INDIVIDUAL IF HE IS LED TO BELIEVE THAT
THE PRIVILEGE AGAINST SELF-INCRIMINATION APPLIES WHEN HE REFUSES TO
ANSWER QUESTIONS, AND SUBSEQUENTLY PROSECUTED ON THE GROUNDS THAT IT
DOES NOT.  RALEY V. OHIO, 360 U.S. 423 (1959).  ONE WOULD ASSUME THAT
IN SUCH CIRCUMSTANCES MY BROTHER HARLAN WOULD, ALTHOUGH FOR VERY
DIFFERENT REASONS, AGREE THAT THE JUDGMENT OF THE CALIFORNIA'S SUPREME
COURT SHOULD BE AFFIRMED. 

   IV 

ALTHOUGH, STRICTLY SPEAKING, THE ONLY QUESTION BEFORE US IS WHETHER
RESPONDENT MAY BE PUNISHED FOR FAILING TO COMPLY WITH THE STATUTORY
REQUIREMENT AT ISSUE, /12/  I AM CONSTRAINED TO ADD THAT I CANNOT AGREE
WITH THE CALIFORNIA SUPREME COURT'S CONCLUSION THAT THE REQUIREMENT MAY
BE ENFORCED IF THE STATE IS MERELY PRECLUDED FROM USING THE COMPELLED
EVIDENCE AND ITS FRUITS IN A CRIMINAL PROSECUTION.  WHEN, AS IN THE
PRESENT CASE, THE STATUTE REQUIRES AN INDIVIDUAL TO ADMIT THAT HE HAS
ENGAGED IN CONDUCT LIKELY TO BE THE SUBJECT OF CRIMINAL PUNISHMENT
UNDER THE CALIFORNIA TRAFFIC LAWS, THE REQUIREMENT IN MY VIEW MAY BE
ENFORCED ONLY IF THOSE REPORTING THEIR INVOLVEMENT IN AN ACCIDENT
PURSUANT TO THE STATUTORY COMMAND ARE IMMUNE FROM PROSECUTION UNDER
STATE LAW FOR TRAFFIC OFFENSES ARISING OUT OF THE CONDUCT INVOLVED IN
THE ACCIDENT.  SEE PICCIRILLO V. NEW YORK, 400 U.S. 548, 550-551 (1971)
(DOUGLAS, J., DISSENTING); ID., AT 561-573 (BRENNAN, J., DISSENTING);
MACKEY V. UNITED STATES, 401 U.S. 667, 702 (1971) (BRENNAN, J.,
CONCURRING IN JUDGMENT). 

/1/  IN 1967, SUBSEQUENT TO THE ACCIDENT INVOLVED IN THIS CASE, THE
STATUTE WAS AMENDED IN WAYS NOT MATERIAL HERE.  SEE CAL. VEHICLE CODE
SEC. 20002 (SUPP. 1971). 

/2/  CF. RALEY V. OHIO, 360 U.S. 423 (1959). 

/3/  THE CALIFORNIA COURT NOTED THAT USE RESTRICTIONS WERE IMPOSED
BY THE CALIFORNIA LEGISLATURE ITSELF WITH REGARD TO REQUIRED ACCIDENT
REPORTS WHERE THE ACCIDENT RESULTED IN PERSONAL INJURY OR DEATH, SEE
CAL. VEHICLE CODE SEC. 20012 (SUPP. 1971).  71 CAL.2D, AT 1055, 458
P.2D, AT 476. 

/4/  TO AVOID CONFUSION, IT SHOULD BE REMEMBERED THAT THE CALIFORNIA
SUPREME COURT IN ITS OPINION REFERS TO A NUMBER OF STATE "HIT-AND-RUN"
STATUTES, INCLUDING BUT NOT LIMITED TO THE SINGLE STATUTE INVOLVED IN
THIS CASE.  BYERS V. JUSTICE COURT, 71 CAL.2D, AT 1044-1045, 458 P.2D,
AT 469-470. 

/5/  BROWN V. WALKER, 161 U.S. 591, 599 (1896), QUOTING QUEEN V.
BOYES, 1 B.& S. 311, 330, 121 ENG.REP.  730, 738 (1861). 

/6/  EVEN ACCEPTING THE PROPOSITION THAT THE FIFTH AMENDEMTN APPLIES
ONLY TO STATUTORY INQUIRIES DIRECTED AT PERSONS WHO CAN DEMONSTRATE
MEMBERSHIP IN A GROUP INHERENTLY SUSPECT OF CRIMINAL ACTIVITY, I FIND
THE PLURALITY OPINION CONFUSING IN ITS NOTION OF HOW ONE DETERMINES THE
GROUP AT WHICH A GIVEN STATUTE IS DIRECTED.  OF COURSE, IN ONE SENSE,
EVERY STATUTE NOT NAMING THE PERSONS OR ORGANIZATIONS TO WHOM IT
APPLIES IS DIRECTED AT THE PUBLIC AT LARGE.  THE PARADIGM IS A STATUTE
REQUIRING "ANY PERSON WHO DOES (OR IS A MEMBER OF) X" TO ANSWER CERTAIN
QUESTIONS.  THE ACTIVITY INVOLVED IN SULLIVAN WAS THE EARNING OF
INCOME, IN MARCHETTI WAS GAMBLING, AND IN ALBERTSON WAS BELONGING TO
THE COMMUNIST PARTY.  THE PLURALITY APPEARS TO AGREE THAT THOSE
STATUTES WERE, RESPECTIVELY, DIRECTED AT INCOME EARNERS (VERY NEARLY
THE PUBLIC AT LARGE), GAMBLERS, AND COMMUNISTS.  THE STATUTE BEFORE US
DIRECTS ANY PERSON WHO IS THE DRIVER OF AN AUTOMOBILE INVOLVED IN AN
ACCIDENT CAUSING PROPERTY DAMAGE TO ANSWER CERRTAIN QUESTIONS.  I WOULD
THINK, THEN, THAT IT WOULD BE "DIRECTED AT" DRIVERS INVOLVED IN
ACCIDENTS CAUSING PROPERTY DAMAGE.  YET THE PLURALITY STATES THAT IT IS
"DIRECTED AT . . . ALL PERSONS WHO DRIVE AUTOMOBILES IN CALIFORNIA." 
APPARENTLY FOUR MEMBERS OF THIS COURT ARE WILLING TO ASSUME THAT ALL
CALIFORNIA DRIVERS AT SOME TIME ARE INVOLVED IN AN AUTOMOBILE ACCIDENT
CAUSING PROPERTY DAMAGE.  I WOULD HESITATE BEFORE MAKING SUCH AN
ASSERTION. 

/7/  SINCE THE AMOUNT OF INCOME EARNED BY AN INDIVIDUAL ENGAGED IN
CRIME IS USUALLY NEITHER RELEVANT TO HIS PROSECUTION FOR SUCH CRIMES
NOR HELPFUL TO POLICE AUTHORITIES IN DETERMINING THAT HE COMMITTED
CRIMES, THIS WOULD SEEM A LOGICAL SUGGESTION.  OF COURSE, IF DISCLOSURE
OF THE AMOUNT OF INCOME CRIMINALLY EARNED WOULD CREATE A NOT
INSUBSTANTIAL RISK OF INCRIMINATION IN ANY PARTICULAR CASE, THE
PRIVILEGE WOULD APPLY. 

/8/  MORE PRECISELY, THE STATUTE REQUIRED RETURNS ONLY OF THOSE WHO
HAD EARNED SPECIFIED AMOUNTS OF NET OR GROSS INCOME, THE PRECISE AMOUNT
DEPENDING ON THE INDIVIDUAL'S MARITAL STATUS.  REVENUE ACT OF 1921,
SEC. 223, 42 STAT. 250. 

/9/  "TECHNOLOGICAL PROGRESS CREATES AN EVER-EXPANDING NEED FOR
GOVERNMENTAL INFORMATION ABOUT INDIVIDUALS.  IF THE INDIVIDUAL'S
ABILITY IN ANY PARTICULAR CASE TO PERCEIVE A GENUINE RISK OF SELF
INCRIMINATION IS TO BE A SUFFICIENT CONDITION FOR IMPOSITION OF USE
RESTRICTIONS ON THE GOVERNMENT IN ALL SELF-REPORTING CONTEXTS, THEN THE
PRIVILEGE THREATENS THE CAPACITY OF THE GOVERNMENT TO RESPOND TO
SOCIETAL NEEDS WITH A REALISTIC MIXTURE OF CRIMINAL SANCTIONS AND OTHER
REGULATORY DEVICES.  TO THE EXTENT THAT OUR MARCHETTI-GROSSO LINE OF
CASES APPEARS TO SUGGEST THAT THE PRESENCE OF PERCEIVABLE RISKS OF
INCRIMINATION IN AND OF ITSELF JUSTIFIES IMPOSITION OF A USE
RESTRICTION ON THE INFORMATION GAINED BY THE GOVERNMENT THROUGH
COMPELLED SELF-REPORTING, I THINK THAT LINE OF CASES SHOULD BE
EXPLICITLY LIMITED BY THIS COURT."  ANTE, AT 452-453. 

/10/  THE OPINION OF THE CALIFORNIA SUPREME COURT IS QUOTED AT SOME
LENGTH BY MY BROTHER HARLAN, ANTE, AT 444-447.  YET HE SOMEHOW APPEARS
TO CONCLUDE THAT THAT COURT DID NOT MEAN WHAT IT SAID.  FOR
NOTWITHSTANDING THE LANGUAGE QUOTED ABOVE, HE STATES THAT THE
CALIFORNIA SUPREME COURT "CONCLUDED THAT INTEREFERENCE WITH
PROSECUTORIAL EFFORTS IN ACCIDENT CASES WAS NOT SO IMPORTANT THAT IT
RENDERED THE USE RESTRICTION LESS PALATABLE TO THE STATE THAN
RECOGNITION OF AN OUTRIGHT PRIVILEGE NOT TO DISCLOSE."  ANTE, AT 447. 

/11/  IT COULD BE ARGUED THAT THE USE RESTRICTION CREATED BY THE
CALIFORNIA LEGISLATURE IS OF LESSER CONSEQUENCE-- AND THEREFORE LESS
BURDENSOME-- THAN THAT WHICH WAS IMPOSED BY THE CALIFORNIA SUPREME
COURT IN THIS CASE.  IF SO, HOWEVER, UNDER THE PREMISES OF MY BROTHER
HARLAN'S OPINION, THE APPROPRIATE RESPONSE ON OUR PART WOULD BE NOT TO
HOLD THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION COULD NOT BE
ASSERTED, BUT AT MOST TO DIMINISH THE SCOPE OF THE USE RESTRICTION TO
THAT CONSIDERED BY THE LEGISLATURE TO BE CONSISTENT WITH THE STATE
INTERESTS ASSERTED.  THERE IS NO REASON TO PROTECT THOSE INTERESTS MORE
THAN THE LEGISLATURE ITSELF DEEMS NECESSARY. 

/12/  ALTHOUGH THE CASE WAS TRIED AND DECIDED PRIOR TO OUR DECISIONS
IN MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968), AND GROSSO V. UNITED
STATES, 390 U.S. 62 (1968), THE PRINCIPLES OF THOSE CASES MUST BE
APPLIED HERE.  UNITED STATES V. UNITED STATES COIN & CURRENCY, 401 U.S.
715 (1971). 

LOUISE H. RENNE, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR PETITIONER.  WITH HER ON THE BRIEFS WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND ALBERT W. HARRIS, JR., ASSISTANT ATTORNEY
GENERAL.     JOHN W. POULOS, BY APPOINTMENT OF THE COURT, 400 U.S. 813,
ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :









MCGEE V. UNITED STATES, 402 U.S. 479 


       MCGEE V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 362.  ARGUED FEBRUARY 23, 1971-- DECIDED MAY 17, 1971 


PETITIONER APPLIED IN 1966 FOR CONSCIENTIOUS OBJECTOR STATUS TO HIS
LOCAL SELECTIVE SERVICE BOARD, WHICH ADVISED HIM THAT HIS CLAIM WOULD
BE PASSED ON WHEN HIS STUDENT DEFERMENT EXPIRED.  HIS BOARD WAS TOLD IN
1967 THAT PETITIONER HAD BEEN ACCEPTED FOR A GRADUATE PROGRAM WHERE, IN
PETITIONER'S OWN VIEW, HE WOULD "PROBABLY QUALIFY" FOR A THEOLOGICAL
EXEMPTION.  HOWEVER, NO REQUEST FOR MINISTERIAL STUDENT STATUS WAS
MADE, NOR WAS PERTINENT SUPPORTING INFORMATION PRESENTED.  PETITIONER
REFUSED TO FILL OUT A CURRENT INFORMATION QUESTIONNAIRE SENT TO HIM ON
HIS GRADUATION FROM COLLEGE, ANNOUNCING THAT HE WOULD NOT COOPERATE
WITH THE SELECTIVE SERVICE SYSTEM.  FOLLOWING THE LOCAL BOARD'S
SUBSEQUENT RECLASSIFICATION OF PETITIONER I-A, HE DID NOT SEEK A
PERSONAL APPEARANCE BEFORE THE BOARD OR APPEAL BOARD REVIEW. 
PETITIONER THEREAFTER REFUSED TO SUBMIT TO INDUCTION, FOR WHICH, ALONG
WITH OTHER DRAFT LAW VIOLATIONS, HE WAS PROSECUTED AND CONVICTED.  THE
COURT OF APPEALS, REJECTING PETITIONER'S DEFENSE THAT THE LOCAL BOARD
HAD ERRED IN ITS CLASSIFICATION, AFFIRMED.  HELD:  PETITIONER'S FAILURE
TO EXHAUST HIS ADMINISTRATIVE REMEDIES JEOPARDIZED THE INTEREST OF THE
SELECTIVE SERVICE SYSTEM, AS THE ADMINISTRATIVE AGENCY RESPONSIBLE FOR
CLASSIFYING REGISTRANTS, IN DEVELOPING THE FACTS AND USING ITS
EXPERTISE TO ASSESS HIS CLAIMS TO EXEMPT STATUS AND THUS BARS
PETITIONER'S DEFENSE THAT HE WAS ERRONEOUSLY CLASSIFIED.  MCKART V.
UNITED STATES, 395 U.S. 185, FACTUALLY DISTINGUISHED.  PP. 483-491. 

426 F.2D 691, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, HARLAN, BRENNAN, STEWART, WHITE, AND BLACKMUN, JJ.,
JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 492. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF FAILING TO SUBMIT TO INDUCTION AND OTHER
VIOLATIONS OF THE DRAFT LAWS.  HIS PRINCIPAL DEFENSE INVOLVES THE
CONTENTION THAT HE HAD BEEN INCORRECTLY CLASSIFIED BY HIS LOCAL
SELECTIVE SERVICE BOARD.  THE COURT OF APPEALS RULED THAT THIS DEFENSE
WAS BARRED BECAUSE PETITIONER HAD FAILED TO PURSUE AND EXHAUST HIS
ADMINISTRATIVE REMEDIES.  WE GRANTED CERTIORARI, 400 U.S. 864 (1970),
TO CONSIDER THE APPLICABILITY OF THE "EXHAUSTION OF ADMINISTRATIVE
REMEDIES" DOCTRINE IN THE CIRCUMSTANCES OF THIS CASE. 

        I 

IN FEBRUARY 1966, WHILE ATTENDING THE UNIVERSITY OF ROCHESTER,
PETITIONER APPLIED TO HIS LOCAL SELECTIVE SERVICE BOARD FOR
CONSCIENTIOUS OBJECTOR STATUS.  IN SUPPORT OF HIS CLAIM TO THAT
EXEMPTION HE SUBMITTED THE SPECIAL FORM FOR CONSCIENTIOUS OBJECTORS
(SSS FORM 150), SETTING FORTH HIS VIEWS CONCERNING PARTICIPATION IN
WAR.  /1/  THE BOARD CONTINUED PETITIONER'S EXISTING CLASSIFICATION--
STUDENT DEFERMENT-- AND ADVISED HIM THAT THE CONSCIENTIOUS OBJECTOR
CLAIM WOULD BE PASSED WHEN STUDENT STATUS NO LONGER APPLIED. 

IN APRIL 1967 PETITIONER WROTE TO PRESIDENT JOHNSON, ENCLOSING THE
CHARRED REMNANTS OF HIS DRAFT CARDS AND DECLARING HIS CONVICTION THAT
HE MUST "SEVER EVERY LINK WITH VIOLENCE AND WAR."  THE LETTER INCLUDED
A STATEMENT THAT PETITIONER HAD "ALREADY BEEN ACCEPTED FOR GRADUATE
STUDY IN A PROGRAM WHERE I WOULD PROBABLY QUALIFY FOR THE THEOLOGICAL
DEFERMENT."  A COPY OF THE LETTER WAS FORWARDED TO THE LOCAL BOARD; THE
BOARD CONTINUED PETITIONER'S STUDENT DEFERMENT.  PETITIONER GRADUATED
IN JUNE 1967, AND THEREAFTER THE BOARD SENT HIM A CURRENT INFORMATION
QUESTIONNAIRE (SSS FORM 127), WHICH ASKED INTER ALIA FOR SPECIFIC
INFORMATION CONCERNING HIS FUTURE EDUCATIONAL PLANS AND GENERALLY FOR
ANY INFORMATION HE THOUGHT SHOULD BE CALLED TO THE BOARD'S ATTENTION. 
PETITIONER RETURNED THE QUESTIONNAIRE UNANSWERED AND ANNOUNCED IN A
COVER LETTER THAT HENCEFORTH HE WOULD ADHERE TO A POLICY OF
NONCOOPERATION WITH THE SELECTIVE SERVICE SYSTEM. 

IN SEPTEMBER 1967 THE BOARD REVIEWED PETITIONER'S FILE, REJECTED THE
PENDING CONSCIENTIOUS OBJECTOR CLAIM, /2/  AND RECLASSIFIED PETITIONER
I-A.  IN RESPONSE TO HIS RECLASSIFICATION PETITIONER SOUGHT NEITHER A
PERSONAL APPEARANCE BEFORE THE LOCAL BOARD NOR REVIEW BY THE APPEAL
BOARD, INDEED, PURSUANT TO HIS POLICY OF NONCOOPERATION, HE RETURNED TO
THE BOARD, UNOPENED, THE COMMUNICATION NOTIFYING HIM OF THE
RECLASSIFICATION AND OF HIS RIGHT TO APPEAR BEFORE THE LOCAL BOARD, TO
CONFER WITH THE GOVERNMENT APPEAL AGENT, AND TO APPEAL.  PETITIONER DID
NOT APPEAR FOR A PHYSICAL EXAMINATION ORDERED TO TAKE PLACE IN OCTOBER
1967.  HE DID RESPOND TO AN ORDER TO APPEAR FOR INDUCTION IN JANUARY
1968, AND HE TOOK A PHYSICAL EXAMINATION AT THAT TIME.  HOWEVER, HE
REFUSED TO SUBMIT TO INDUCTION. 

PETITIONER WAS PROSECUTED, UNDER SEC. 12(A) OF THE MILITARY
SELECTIVE SERVICE ACT OF 1967, 62 STAT. 622, AS AMENDED, 50 U.S.C. APP.
462(A) (1964 ED., SUPP. V) AND APPLICABLE SELECTIVE SERVICE
REGULATIONS, /3/  FOR FAILING TO SUBMIT TO INDUCTION (COUNT I), FAILING
TO REPORT FOR A PRE-INDUCTION PHYSICAL EXAMINATION (COUNT II), FAILING
TO KEEP POSSESSION OF A VALID CLASSIFICATION NOTICE (COUNT III), AND
FAILING TO SUBMIT REQUESTED INFORMATION RELEVANT TO HIS DRAFT STATUS
(COUNT IV).  PETITIONER WAS CONVICTED ON ALL FOUR COUNTS AND SENTENCED
TO TWO YEARS' IMPRISONMENT ON EACH COUNT, THE SENTENCES TO RUN
CONCURRENTLY.  PETITIONER'S PRINCIPAL DEFENSE TO LIABILITY FOR REFUSING
INDUCTION /4/  WAS THAT THE LOCAL BOARD HAD ERRED IN CLASSIFYING HIM I
A.  /5/  THE COURT OF APPEALS, WITH ONE JUDGE DISSENTING, HELD THAT THE
DEFENSE OF INCORRECT CLASSIFICATION WAS BARRED BECAUSE PETITIONER HAD
FAILED TO EXHAUST THE ADMINISTRATIVE REMEDIES AVAILABLE FOR CORRECTION
OF SUCH AN ERROR.  THE CONVICTION WAS AFFIRMED BY THE COURT OF
APPEALS. 

        II 

TWO TERMS AGO, IN MCKART V. UNITED STATES, 395 U.S. 185 (1969), THE
COURT SURVEYED THE PLACE OF THE EXHAUSTION DOCTRINE IN SELECTIVE
SERVICE CASES, AND THE POLICIES THAT UNDERPIN THE DOCTRINE.  AS IT HAS
EVOLVED SINCE FALBO V. UNITED STATES, 320 U.S. 549 (1944), AND ESTEP V.
UNITED STATES, 327 U.S. 114 (1946), THE DOCTRINE WHEN PROPERLY INVOKED
OPERATES TO RESTRICT JUDICIAL SCRUTINY OF ADMINISTRATIVE ACTION HAVING
TO DO WITH THE CLASSIFICATION OF A REGISTRANT, IN THE CASE OF A
REGISTRANT WHO HAS FAILED TO PURSUE NORMAL ADMINISTRATIVE REMEDIES AND
THUS HAD SIDESTEPPED A CORRECTIVE PROCESS WHICH MIGHT HAVE CURED OR
RENDERED MOOT THE VERY DEFECT LATER COMPLAINED OF IN COURT.  CF.
OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S. 233, 235-236, N. 5
(1968); GIBSON V. UNITED STATES, 329 U.S. 338, 349-350 (1946).  MCKART
STANDS FOR THE PROPOSITION THAT THE DOCTRINE IS NOT TO BE APPLIED
INFLEXIBLY IN ALL SITUATIONS, BUT THAT DECISION ALSO PLAINLY
CONTEMPLATES SITUATIONS WHERE A LITIGANT'S CLAIMS WILL LOSE VITALITY
BECAUSE THE LITIGANT HAS FAILED TO CONTEST HIS RIGHTS IN AN
ADMINISTRATIVE FORUM.  THE RESULT IN A CRIMINAL CONTEXT IS NO DOUBT A
SUBSTANTIAL DETRIMENT TO THE DEFENDANT WHOSE CLAIMS ARE BARRED.  STILL
THIS UNHAPPY RESULT MAY BE JUSTIFIED IN PARTICULAR CIRCUMSTANCES BY
CONSIDERATIONS RELATING TO THE INTEGRITY OF THE SELECTIVE SERVICE
CLASSIFICATION PROCESS AND THE LIMITED ROLE OF THE COURTS IN DECIDING
THE PROPER CLASSIFICATION OF DRAFT REGISTRANTS.  /6/

        A 

AFTER MCKART THE TASK FOR THE COURTS, IN DECIDING THE APPLICABILITY
OF THE EXHAUSTION DOCTRINE TO THE CIRCUMSTANCES OF A PARTICULAR CASE,
IS TO ASK "WHETHER ALLOWING ALL SIMILARLY SITUATED REGISTRANTS TO
BYPASS (THE ADMINISTRATIVE AVENUE IN QUESTION) WOULD SERIOUSLY IMPAIR
THE SELECTIVE SERVICE SYSTEM'S ABILITY TO PERFORM ITS FUNCTIONS."  395
U.S.,AT 197.  MCKART SPECIFIED THE SALIENT INTERESTS THAT MAY BE
JEOPARDIZED BY A REGISTRANT'S FAILURE TO PURSUE ADMINISTRATIVE
REMEDIES.  CERTAIN FAILURES TO EXHAUST MAY DENY THE ADMINISTRATIVE
SYSTEM IMPORTANT OPPORTUNITIES "TO MAKE A FACTUAL RECORD" FOR PURPOSES
OF CLASSIFICATION, OR "TO EXERCISE ITS DISCRETION OR APPLY ITS
EXPERTISE" IN THE COURSE OF DECISIONMAKING.  ID., AT 194.  THERE MAY BE
A DANGER THAT RELAXATION OF EXHAUSTION REQUIREMENTS, IN CERTAIN
CIRCUMSTANCES, WOULD INDUCE "FREQUENT AND DELIBERATE FLOUTING OF
ADMINISTRATIVE PROCESSES," THEREBY UNDERMINING THE SCHEME OF
DECISIONMAKING THAT CONGRESS HAS CREATED.  ID., AT 195.  AND OF COURSE,
A STRICT EXHAUSTION REQUIREMENT TENDS TO ENSURE THAT THE AGENCY HAVE
ADDITIONAL OPPORTUNITIES "TO DISCOVER AND CORRECT ITS OWN ERRORS," AND
THUS MAY HELP TO OBVIATE ALL OCCASION FOR JUDICIAL REVIEW.  IBID. 

TO BE WEIGHED AGAINST THE INTERESTS IN EXHAUSTION IS THE HARSH
IMPACT OF THE DOCTRINE WHEN IT IS INVOKED TO BAR ANY JUDICIAL REVIEW OF
A REGISTRANT'S CLAIMS.  SURELY AN INSUBSTANTIAL PROCEDURAL DEFAULT BY A
REGISTRANT SHOULD NOT SHIELD AN INVALID ORDER FROM JUDICIAL CORRECTION,
SIMPLY BECAUSE THE INTEREST IN TIME-SAVING SELF-CORRECTION BY THE
AGENCY IS INVOLVED.  THAT SINGLE INTEREST IS CONCEIVABLY SLIGHTED BY
ANY FAILURE TO EXHAUST, HOWEVER INNOCUOUS THE BYPASS IN OTHER RESPECTS,
AND MCKART RECOGNIZES THAT THE EXHAUSTION REQUIREMENT IS NOT TO BE
APPLIED "BLINDLY IN EVERY CASE."  ID., AT 201.  MCKART ALSO
ACKNOWLEDGES THAT THE FEAR OF "FREQUENT AND DELIBERATE FLOUTING" CAN
EASILY BE OVERBLOWN, SINCE IN THE NORMAL CASE A REGISTRANT WOULD BE
"FOOLHARDY" INDEED TO WITHHOLD A VALID CLAIM FROM ADMINISTRATIVE
SCRUTINY.  ID., AT 200.  THUS THE CONTENTION THAT THE RIGORS OF THE
EXHAUSTION DOCTRINE SHOULD BE RELAXED IS NOT TO BE MET BY MECHANICAL
RECITATION OF THE BROAD INTERESTS USUALLY SERVED BY THE DOCTRINE, BUT
RATHER SHOULD BE ASSESSED IN LIGHT OF A DISCRETE ANALYSIS OF THE
PARTICULAR DEFAULT IN QUESTION, TO SEE WHETHER THERE IS "A GOVERNMENTAL
INTEREST COMPELLING ENOUGH" TO JUSTIFY THE FORFEITING OF JUDICIAL
REVIEW.  ID., AT 197. 

IN THE MCKART CASE, THE FOCAL INTEREST FOR PURPOSES OF ANALYSIS WAS
THE INTEREST IN ALLOWING THE AGENCY "TO MAKE A FACTUAL RECORD, OR TO
EXERCISE ITS DISCRETION OR APPLY ITS EXPERTISE."  THERE THE REGISTRANT
HAD FAILED-TO TAKE AN ADMINISTRATIVE APPEAL FROM THE LOCAL BOARD'S
DENIAL OF "SOLE SURVIVING SON" STATUS.  LATER THE ISSUE OF MCKART'S
ENTITLEMENT TO THAT EXEMPT STATUS AROSE IN A CRIMINAL CONTEXT, AND THE
COURT HELD THAT THE CLAIM SHOULD BE HEARD AS A DEFENSE TO LIABILITY
DESPITE THE FAILURE TO EXHAUST.  THE VALIDITY OF THE CLAIM WAS A
QUESTION "SOLELY . . . OF STATUTORY INTERPRETATION."  ID., AT 197-198. 
MCKART'S FAILURE TO EXHAUST DID NOT INHIBIT THE MAKING OF AN
ADMINISTRATIVE RECORD-- ALL THE RELEVANT FACTS HAD BEEN PRESENTED. 
ID., AT 198 N. 15.  THE ISSUE WAS NOT ONE OF FACT AND THUS ITS
RESOLUTION WOULD NOT HAVE BEEN AIDED BY THE EXERCISE OF SPECIAL
ADMINISTRATIVE EXPERTISE; AND THE PROPER INTERPRETATION OF THE
STATUTORY PROVISION IN QUESTION WAS NOT A MATTER FOR AGENCY
DISCRETION. 

IN THE PRESENT CASE THE SAME INTEREST IS PIVOTAL-- BUT HERE IT IS
APPARENT THAT MCGEE'S FAILURE TO EXHAUST DID JEOPARDIZE THE INTEREST IN
FULL ADMINISTRATIVE FACT GATHERING AND UTILIZATION OF AGENCY EXPERTISE,
RATHER THAN THE CONTRARY.  UNLIKE THE DISPUTE ABOUT STATUTORY
INTERPRETATION INVOLVED IN MCKART, MCGEE'S CLAIMS TO EXEMPT STATUS-- AS
A MINISTERIAL STUDENT OR A CONSCIENTIOUS OBJECTOR-- DEPENDED ON THE
APPLICATION OF EXPERTISE BY ADMINISTRATIVE BODIES IN RESOLVING
UNDERLYING ISSUE OF FACT.  FACTFINDING FOR PURPOSES OF SELECTIVE
SERVICE CLASSIFICATION IS COMMITTED PRIMARILY TO THE ADMINISTRATIVE
PROCESS, WITH VERY LIMITED JUDICIAL REVIEW TO ASCERTAIN WHETHER THERE
IS A "BASIS IN FACT" FOR THE ADMINISTRATIVE DETERMINATION.  SEE 50
U.S.C. APP. 460(B)(3) (1964 ED., SUPP. V); ESTEP V. UNITED STATES, 327
U.S.,AT 122-123; CF. WITMER V. UNITED STATES, 348 U.S. 375, 380-381
(1955).  MCKART EXPRESSLY NOTED THAT AS TO CLASSIFICATION CLAIMS
TURNING ON THE RESOLUTION OF PARTICULARISTIC FACT QUESTIONS, "THE
SELECTIVE SERVICE SYSTEM AND THE COURTS MAY HAVE A STRONGER INTEREST IN
HAVING THE QUESTION DECIDED IN THE FIRST INSTANCE BY THE LOCAL BOARD
AND THEN BY THE APPEAL BOARD, WHICH CONSIDERS THE QUESTION ANEW."  395
U.S.,AT 198 N. 16.  SEE ID., AT 200-201.  THIS "STRONGER INTEREST," IN
THE CIRCUMSTANCES OF THE PRESENT CASE, HAS BECOME COMPELLING AND FULLY
SUFFICIENT TO JUSTIFY INVOCATION OF THE EXHAUSTION DOCTRINE. 

        B 

PETITIONER ARGUES THAT DENIAL OF EXEMPTION AS A MINISTERIAL STUDENT
WAS ERRONEOUS, BUT HE HAD NEVER REQUESTED THAT CLASSIFICATION NOR HAD
HE SUBMITTED INFROMATION THAT WOULD HAVE BEEN PERTINENT TO SUCH A
CLAIM.  IN REGARD TO HIS ENTITLEMENT TO THIS EXEMPT STATUS.  MCGEE MADE
NO EFFORT TO INVOKE ADMINISTRATIVE PROCESSES FOR FACTFINDING
CLASSIFICATION, AND REVIEW.  IT IS TRUE THAT VAGRANT BITS OF
INFORMATION MAY HAVE COME TO THE ATTENTION OF THE LOCAL BOARD RAISING A
BARE POSSIBILITY THAT PETITIONER MIGHT QUALIFY AS A MINISTERIAL
STUDENT, /7/  BUT THIS HARDLY CHANGES THE PICTURE OF A THOROUGHGOING
ATTEMPT TO SIDESTEP THE ADMINISTRATIVE PROCESS AND MAKE THE FIRST
SERIOUS CASE FOR AN EXEMPTION LATER IN COURT. 

SUCH A DEFAULT DIRECTLY JEOPARDIZES THE FUNCTIONAL AUTONOMY OF THE
ADMINISTRATIVE BODIES ON WHICH CONGRESS HAS CONFERRED THE PRIMARY
RESPONSIBILITY TO DECIDE QUESTIONS OF FACT RELATING TO THE PROPER
CLASSIFICATION OF SELECTIVE SERVICE REGISTRANTS.  /8/  SEE MCKART V.
UNITED STATES, 395 U.S. 185, 198 N. 15 (1969); CF 32 CFR 1622.1(C). 
HERE THE BYPASS WAS DELIVERATE AND WITHOUT EXCUSE, AND THIS IS NOT A
CASE WHERE ENTITLEMENT TO AN EXEMPTION WOULD BE AUTOMATICALLY MADE OUT,
GIVEN A MINIMAL SHOWING BY THE REGISTRANT OR MINIMAL INVESTIGATORY
EFFORT BY THE LOCAL BOARD.  /9/  THE EXHAUSTION REQUIREMENT IS PROPERLY
IMPOSED WHERE, AS HERE, THE CLAIM TO EXEMPTION DEPENDS ON CAREFUL
FACTUAL ANALYSIS AND WHERE THE REGISTRANT HAS COMPLETELY SIDESTEPPED
THE ADMINISTRATIVE PROCESS DESIGNED TO MARSHAL RELEVANT FACTS AND
RESOLVE FACTUAL ISSUES IN THE FIRST INSTANCE.  CF. DICKINSON V. UNITED
STATES, 346 U.S. 389, 395-396 (1953). 

    C 

PETITIONER DID CLAIM EXEMPTION AS A CONSCIENTIOUS OBJECTOR TO WAR. 
HE FILLED OUT AND RETURNED THE SPECIAL FORM FOR CONSCIENTIOUS OBJECTORS
(SSS FORM 150), AND APPENDED A FURTHER STATEMENT OF BELIEFS, THEREBY
MAKING OUT A PRIMA FACIE CASE FOR THE EXEMPT STATUS.  SINCE AT THAT
TIME-- 1966-- PETITIONER HELD AN UNDERGRADUATE STUDENT DEFERMENT, THE
BOARD POSTPONED CONSIDERATION OF THE CLAIM TO A "HIGHER"
CLASSIFICATION.  SEE 32 CFR 1623.2.  IN 1967, AFTER PETITIONER HAD
GRADUATED, THE PENDING CONSCIENTIOUS OBJECTOR CLAIM WAS REVIEWED /10/
AND REJECTED, AND PETITIONER WAS CLASSIFIED I-A.  PETITIONER CONTENDS
THAT DENIAL OF CONSCIENTIOUS OBJECTOR STATUS WAS ERRONEOUS, BUT AFTER
THE CLAIM WAS REJECTED HE DID NOT INVOKE THE ADMINISTRATIVE PROCESSES
AVAILABLE TO CORRECT THE ERROR.  HE DID NOT SEEK A PERSONAL APPEARANCE
BEFORE THE LOCAL BOARD, /11/  NOR DID HE TAKE AND ADMINISTRATIVE APPEAL
TO CONTEST THE DENIAL BEFORE THE APPEAL BOARD, WHICH CLASSIFIED DE
NOVO.  /12/

THAT PETITIONER'S FAILURE TO EXHAUST SHOULD CUT OFF JUDICIAL REVIEW
OF HIS CONSCIENTIOUS OBJECTOR CLAIM MAY SEEM TOO HARD A RESULT,
ASSUMING, AS THE GOVERNMENT ADMITS, THAT THE WRITTEN INFORMATION
AVAILABLE TO THE BOARD PROVIDED NO BASIS IN FACT FOR DENIAL OF THE
EXEMPTION, AND, AS THE COURT OF APPEALS RULED, THAT NEITHER DID
PETITIONER'S CONDUCT IN RELATION TO THE CONSCRIPTION SYSTEM OR OTHER
ACTS THAT CAME INTO VIEW.  SEE 426 F.2D 691, 697 (CA2 1970); ID., AT
700-701 (DISSENTING OPINION).  BUT EVEN ASSUMING THE ABOVE,
PETITIONER'S DUAL FAILURE TO EXHAUST-- HIS FAILURE EITHER TO SECURE A
PERSONAL APPEARANCE OR TO TAKE AN ADMINISTRATIVE APPEAL-- IMPLICATES
DECISIVELY THE POLICIES SERVED BY THE EXHAUSTION REQUIREMENT,
ESPECIALLY THE PURPOSE OF ENSURING THAT THE SELECTIVE SERVICE SYSTEM
HAVE FULL OPPORTUNITY TO "MAKE A FACTUAL RECORD" AND "APPLY ITS
EXPERTISE" IN RELATION TO A REGISTRANT'S CLAIMS.  WHEN A CLAIM TO
EXEMPTION DEPENDS ULTIMATELY ON THE CAREFUL GATHERING AND ANALYSIS OF
RELEVANT FACTS, THE INTEREST IN FULL AIRING OF THE FACTS WITHIN THE
ADMINISTRATIVE SYSTEM IS PROMINENT, AND AS THE COURT OF APPEALS NOTED,
THE EXHAUSTION REQUIREMENT "CANNOT PROPERLY BE LIMITED TO THOSE PERSONS
WHOSE CLAIMS WOULD FAIL IN COURT ANYWAY."  ID., AT 699. 

CONSCIENTIOUS OBJECTOR CLAIMS TURN ON THE RESOLUTION OF FACTUAL
QUESTIONS RELATING TO THE NATURE OF A REGISTRANT'S BELIEFS CONCERNING
WAR, GILETTE V. UNITED STATES, 401 U.S. 437 (1971), THE BASIS OF THE
OBJECTION IN CONSCIENCE AND RELIGION, WELSH V. UNITED STATES, 398 U.S.
333 (1970), AND THE REGISTRANT'S SINCERITY, WITMER V. UNITED STATES,
348 U.S. 375, 381 (1955).  SEE 50 U.S.C. APP. 456(J) (1964 ED., SUPP.
V).  PETITIONER DECLINED TO CONTEST THE DENIAL OF HIS CONSCIENTIOUS
OBJECTOR CLAIM BEFORE THE LOCAL BOARD BY SECURING A PERSONAL
APPEARANCE, AND THE SELECTIVE SERVICE SYSTEM WAS  THEREBY DEPRIVED OF
ONE OPPORTUNITY TO SUPPLEMENT THE RECORD OF RELEVANT FACTS.  THE
OPPORTUNITY  WOULD HAVE BEEN RESTORED HAD PETITIONER SOUGHT REVIEW BY
THE APPEAL BOARD.  WHILE THE LOCAL BOARD APPARENTLY WAS SATISFIED THAT
CLASSIFICATION SHOULD BE MADE ON THE BASIS OF THE RECORD IT CONFRONTED,
/13/ THE APPEAL BOARD, WHICH CLASSIFIES DE NOVO, MIGHT HAVE DETERMINED
THAT THE RECORD SHOULD BE SUPPLEMENTED BY THE LOCAL BOARD.  /14/ SEE 32
CFR 1626.23.  IN THE CIRCUMSTANCES OF THIS CASE, PETITIONER'S FAILURE
TO TAKE AN ADMINISTRATIVE APPEAL NOT ONLY DEPRIVED THE APPEAL BOARD OF
THE OPPORTUNITY TO "APPLY ITS EXPERTISE" IN FACTFINDING TO THE RECORD
THAT WAS AVAILABLE; IT ALSO  REMOVED AN OPPORTUNITY TO SUPPLEMENT A
RECORD CONTAINING PETITIONER'S OWN SUBMISSIONS BUT NOT CONTAINING THE
RESULTS OF ANY SPECIFIC INQUIRY INTO SINCERITY. 

THE GOVERNMENT CONTENDS THAT UNLESS THE EXHAUSTION REQUIREMENT IS
IMPOSED TO BAR JUDICIAL REVIEW WHEN THE FAILURE TO EXHAUST HAS THE
PRESENT CHARACTER, REGISTRANTS WOULD BE ENCOURAGED TO SIDESTEP THE
ADMINISTRATIVE PROCESSES ONCE A PRIMA FACIE CLAIM TO CONSCIENTIOUS
OBJECTOR STATUS IS MADE OUT BY SUBMISSION OF A CAREFULLY DRAFTED FORM
150.  SHOULD THE CLAIM BE DENIED AT THE LOCAL BOARD LEVEL, THE CLAIMANT
MIGHT BE TEMPTED TO CIRCUMVENT FURTHER FACT-GATHERING PROCESSES, AND
TAKE A CHANCE ON SHOWING IN COURT THAT THE ONLY ADMINISTRATIVE RECORD
AVAILABLE CONTAINS NO BASIS IN FACT FOR DENIAL OF THE CLAIM.  THIS
SOMEWHAT EXTREME SITUATION IS INDEED PRESENTED BY THE CIRCUMSTANCES OF
THE PRESENT CASE, THOUGH, OF COURSE, THERE IS NO REASON TO QUESTION THE
BONA FIDES OF MCGEE'S OWN SUPERVENING POLICY OF NONCOOPERATION WITH THE
CONSCRIPTION SYSTEM.  IT REMAINS THAT MCGEE'S FAILURE TO PURSUE HIS
ADMINISTRATIVE REMEDIES WAS DELIBERATE AND WITHOUT EXCUSE.  AND IT IS
NOT FANCIFUL TO THINK THAT "FREQUENT AND DELIBERATE FLOUTING OF
ADMINISTRATIVE PROCESSES" MIGHT OCCUR IF MCGEE AND OTHERS SIMILARLY
SITUATED WERE ALLOWED TO PRESS THEIR CLAIMS IN COURT DESPITE A DUAL
FAILURE TO EXHAUST. 

        III 

WE CONCLUDE THAT PETITIONER'S FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES BARS THE DEFENSE OF ERRONEOUS CLASSIFICATION, /15/  AND
THEREFORE THE JUDGMENT BELOW IS

             AFFIRMED. 

/1/  IN THIS CONNECTION HE NOTED THAT HE INTENDED "TO CONTINUE ON TO
ACTUAL ORDAINED PRIESTHOOD."  AFTER REGISTERING FOR THE DRAFT IN 1961,
PETITIONER HAD INFORMED THE LOCAL BOARD THAT HE WAS THEN A STUDENT AT A
CATHOLIC SEMINARY, PREPARING FOR THE MINISTRY UNDER THE DIRECTION OF
THE ROMAN CATHOLIC CHURCH.  SUBSEQUENTLY HE LEFT THE SEMINARY AND LATER
ENROLLED AT THE UNIVERSITY OF ROCHESTER, A SECULAR UNIVERSITY. 

/2/  SEE N. 10, INFRA. 

/3/  SEE 32 CFR 1632.14; 32 CFR 1628.16; 32 CFR 1623.5; 32 CFR
1641.7(B). 

/4/  IN THE COURT OF APPEALS, AS HERE, PETITIONER ARGUED THAT THE
DEFENSE OF ERRONEOUS CLASSIFICATION WOULD, IF VALID, DEFEAT CRIMINAL
LIABILITY FOR ACTS CHARGED UNDER COUNTS II AND III, AS WELL AS COUNT
I. 

/5/  PETITIONER CONTENDED, AS HE DOES IN THIS COURT, THAT THE BOARD
ERRONEOUSLY FAILED TO PASS ON THE MERITS OF HIS CONSCIENTIOUS OBJECTOR
CLAIM WHEN RECLASSIFYING HIM IN SEPTEMBER 1967, THAT AT ANY RATE THE
BOARD ERRED IN DENYING CONSCIENTIOUS OBJECTOR STATUS, AND ALSO THAT THE
BOARD ERRED IN FAILING TO GRANT HIM A MINISTERIAL STUDENT EXEMPTION. 
PETITIONER HAD MATRICULATED AT UNION THEOLOGICAL SEMINARY IN SEPTEMBER
1967, AFTER BEING RECLASSIFIED I-A.  HE HAD NEVER, HOWEVER, REQUESTED
THAT HE BE CLASSIFIED AS EXEMPT FROM THE DRAFT AS A MINISTERIAL
STUDENT.  SEE INFRA, AT 486-488. 

/6/  CERTAINLY IT IS LATE IN THE DAY TO LAUNCH A BROADSIDE AGAINST
THE WHOLE SCHEME OF THE EXHAUSTION DOCTRINE IN SELECTIVE SERVICE CASES,
AS PETITIONER ATTEMPTS, ON THE GROUND THAT A DOCTRINE OF THE SAME NAME
OPERATES IN SOME OTHER LEGAL CONTEXT SIMPLY TO INHIBIT PREMATURE ACCESS
TO THE COURTS ON THE PART OF A LITIGANT SEEKING AFFIRMATIVELY TO
CHALLENGE AGENCY ACTION.  CF. MCKART V. UNITED STATES, 395 U.S. 185,
193-195 (1969).  NOR IS IT TENABLE TO SAY THAT THE DOCTRINE IS
INAPPROPRIATE WHEN FASHIONED BY JUDICIAL DECISION RATHER THAN SPECIFIC
CONGRESSIONAL COMMAND.  SEE ID., AT 193-194, 197; ID., AT 206 (WHITE,
J., CONCURRING IN RESULT).  THE WHOLE RATIONALE OF THE EXHAUSTION
DOCTRINE IN THE PRESENT CONTEXT LIES IN PURPOSES INTIMATELY RELATED TO
THE AUTONOMY AND PROPER FUNCTIONING OF THE PARTICULAR ADMINISTRATIVE
SYSTEM CONGRESS HAS CONSTRUCTED.  SEE GENERALLY MULLOY V. UNITED
STATES, 398 U.S. 410, 416 (1970); WITMER V. UNITED STATES, 348 U.S.
375, 380-381 (1955). 

/7/  PETITIONER'S LETTER TO PRESIDENT JOHNSON, A COPY OF WHICH WAS
TRANSMITTED TO THE BOARD, DECLARED THAT PETITIONER'S FUTURE GRADUATE
STUDIES IN HIS OWN VIEW "WOULD PROBABLY QUALIFY" HIM FOR THE
MINISTERIAL STUDENT EXEMPTION.  THIS IS THE SOLE COMMUNICATION FROM
PETITIONER THAT ACTUALLY REACHED THE BOARD, HOWEVER CIRCUITOUSLY, AND
CONTAINED A HINT OF PETITIONER'S PROJECTED STUDIES AT THE UNION
THEOLOGICAL SEMINARY, THOUGH THE LETTER DID NOT SAY WHERE PETITIONER
INTENDED TO STUDY AND IT GAVE NO INFORMATION WHATEVER ON OTHER MATTERS
CRITICAL TO MINISTERIAL STUDENT STATUS.  SEE N. 9, INFRA.  PETITIONER'S
RELIANCE ON INFORMATION COMMUNICATED BY HIM, NOT TO THE LOCAL BOARD,
BUT TO CERTAIN FBI AGENTS AND TO AN ASSISTANT UNITED STATES ATTORNEY,
IS EVEN MORE FARFETCHED. 

/8/  LOCAL BOARD MEMORANDUM NO. 56 (AUGUST 18, 1954) PRESCRIBES THAT
"(TO SUBSTANTIATE THE CLAIM OF A REGISTRANT THAT HE IS A THEOLOGICAL
STUDENT, THE LOCAL BOARD MUST REQUIRE HIM TO FURNISH" CERTAIN RELEVANT
EVIDENCE.  PETITIONER CONTENDS THAT THIS DIRECTIVE PLACES THE BURDEN OF
FACT GATHERING ON THE BOARD AND RELIEVES HIM OF THE RESPONSIBILITY TO
PRODUCE UNSOLICITED EVIDENCE RELEVANT TO A MINISTERIAL STUDENT CLAIM. 
HOWEVER, IN PETITIONER'S CASE THERE WAS NO "CLAIM OF A REGISTRANT"
BEFORE THE BOARD, AND AT ANY RATE THE BOARD'S FACT-GATHERING EFFORTS
WERE THWARTED BY PETITIONER'S REFUSAL TO FILL OUT THE CURRENT
INFORMATION QUESTIONNAIRE (SSS FORM 127) SENT TO HIM.  THUS, WE NEED
NOT CONSIDER THE RELEVANCE OF THE DIRECTIVE FOR EXHAUSTION PURPOSES IN
THE CASE OF A REGISTRANT WHO CLAIMS MINISTERIAL STUDENT STATUS BUT
FALLS SHORT IN HIS INITIAL PROOFS. 

PETITIONER'S EMPHASIS ON THE MANDATORY STATUTORY LANGUAGE RELATING
TO EXEMPTION OF MINISTERIAL STUDENTS, 50 U.S.C. APP. 456(G) (SUCH
PERSONS "SHALL BE EXEMPT"), IS ALSO MISPLACED.  THIS IS NOT A CASE
WHERE, THOUGH NO DEFINITE FORMAL REQUEST FOR EXEMPTION IS MADE,
ENTITLEMENT TO EXEMPTION IS CLEAR ON INFORMATION SUBMITTED.  INDEED,
EVEN ON THE RECORD AS DEVELOPED IN THE TRIAL COURT BELOW, MUCH LESS ON
THE SCRAPS OF INFORMATION AVAILABLE TO THE SELECTIVE SERVICE SYSTEM,
DENIAL OF EXEMPTION IN PETITIONER'S CASE IS NOT UNSUPPORTABLE.  SEE N.
9, INFRA. 

/9/  THE MILITARY SELECTIVE SERVICE ACT OF 1967, 50 U.S.C. APP.
456(G), PROVIDES THAT "STUDENTS PREPARING FOR THE MINISTRY UNDER THE
DIRECTION OF RECOGNIZED CHURCHES OR RELIGIOUS ORGANIZATIONS, WHO ARE
SATISFACTORILY PURSUING FULL-TIME COURSES OF INSTRUCTION IN RECOGNIZED
THEOLOGICAL OR DIVINITY SCHOOLS . . . SHALL BE EXEMPT.  . . ."  SEE 32
CFR 1622.43(A).  EVIDENCE AIRED AT TRIAL SHOWED THAT AFTER SEPTEMBER
1967 PETITIONER WAS ENGAGED IN STUDIES AT UNION THEOLOGICAL SEMINARY, A
NONDENOMINATIONAL SEMINARY.  THERE WAS SOME EVIDENCE THAT PETITIONER
INTENDED EVENTUALLY TO BECOME A PRIEST, BUT SCANT EVIDENCE, IF ANY,
TENDING TO INDICATE THAT PETITIONER'S STUDIES WERE "UNDER THE
DIRECTION" OF HIS CHURCH.  THE COURT OF APPEALS DETERMINED, IN VIEW OF
THE TRIAL RECORD, THAT "DENIAL OF A (MINISTERIAL STUDENT) EXEMPTION TO
MCGEE WOULD HAVE HAD A 'BASIS IN FACT.'"  426 F.2D 691 (CA2 1970). 

/10/  THOUGH THE TRIAL TESTIMONY WAS SOMEWHAT AMBIGUOUS, THE
DISTRICT JUDGE FOUND SPECIFICALLY THAT THE LOCAL BOARD HAD PASSED ON
THE MERITS OF PETITIONER'S PENDING CONSCIENTIOUS OBJECTOR CLAIM IN
SEPTEMBER 1967, BEFORE RECLASSIFYING PETITIONER I-A.  WE DO NOT DISTURB
THIS FINDING, WHICH WAS APPROVED BY THE COURT OF APPEALS MAJORITY
BELOW. 

/11/  SEE 32 CFR 1624.1, 1624.2. 

/12/  SEE 32 CFR 1626.2, 1626.26. 

/13/  PETITIONER'S BOARD DID NOT SUMMON HIM FOR AN INTERVIEW TO
INQUIRE INTO THE SINCERITY OF HIS CLAIM PRIOR TO CLASSIFICATION, AS IT
MIGHT HAVE DONE.  SEE LOCAL BOARD MEMORANDUM NO. 41, AS AMENDED JULY
30, 1968 (RESCINDED AUGUST 27, 1970). 

/14/  LOCAL BOARDS HAVE WIDE FACT-GATHERING POWERS.  SEE 32 CFR
1621.14, 1621.15, AND 1625.1(C). 

/15/  THIS DEFENSE FIGURES IN PETITIONER'S CHALLENGE TO HIS
CONVICTION ON COUNTS I, II, AND III.  THE TWO-YEAR SENTENCES ON EACH OF
THE FOUR COUNTS ARE TO RUN CONCURRENTLY, AND WE DECLINE TO DISTURB THE
CONVICTION ON COUNT IV, A MINOR OFFENSE INDEED IN COMPARISON TO THE ACT
INVOLVED IN COUNT I. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS IS A CASE WHERE SO FAR EVERY JUDGE HAS AGREED THAT MCGEE IS A
CONSCIENTIOUS OBJECTOR.  HE EXPRESSED HIS BELIEF "IN A PERSONAL SUPREME
BEING TO WHOM OBLIGATION IS SUPERIOR WHEN DUTIES OF HUMAN RELATIONS ARE
CONSIDERED"; HE SAID THAT "TAKING PART IN ANY FORM OF MILITARY
OPERATION INDICATES AN APPROVAL/CONSENT SITUATION REPUGNANT . . . TO
LOVE AND SERVICE OF GOD AND FELLOWMAN."  THE MAJORITY OF THE COURT OF
APPEALS CONCLUDED THAT "(NEITHER HIS PRIOR NOR HIS SUBSEQUENT ACTIONS
WERE INCONSISTENT WITH HIS ASSERTIONS . . . AND WE SEE NOTHING IN
MCGEE'S FILE-- ALL THAT WAS BEFORE THE BOARD-- THAT COULD REASONABLY
PUT HIS SINCERITY IN ISSUE."  426 F.2D 691, 697.  JUDGE FEINBERG IN
DISSENT AGREED.  ID., AT 703. 

PETITIONER WAS A ROMAN CATHOLIC STUDYING AT THE UNION THEOLOGICAL
SEMINARY IN NEW YORK CITY, PREPARING FOR THE MINISTRY.  HIS SINCERITY
AND DEDICATION TO HIS MORAL CAUSE ARE NOT QUESTIONED. 

THE CRITICAL ISSUE IN THE CASE IS WHETHER THE SELECTIVE SERVICE
BOARD IN 1966 DID "CONSIDER" AND REJECT THE CLAIM OF THE REGISTRANT
THAT HE WAS A CONSCIENTIOUS OBJECTOR.  THE DISTRICT COURT AND A
MAJORITY OF THE COURT OF APPEALS HELD THAT THE BOARD DID PASS ON THE
CLAIM.  AND THIS COURT NOW REFUSES TO PASS ON THE REGISTRANT'S CLAIM TO
THE CONTRARY, BECAUSE, IT SAYS, THAT FINDING IS NOT "CLEARLY
ERRONEOUS."  THAT THE FINDING IS CLEARLY ERRONEOUS SEEMS APPARENT TO
ONE WHO READS THE ENTIRE RECORD. 

THE ADVICE WHICH THE REGISTRANT RECEIVED IN A LETTER FROM THE BOARD,
DATED MARCH 23, 1966, WAS AS FOLLOWS:  "WE WISH TO ADVISE THAT YOUR
CLAIM AS CONSCIENTIOUS OBJECTOR WILL BE CONSIDERED WHEN YOU NO LONGER
QUALIFY FOR STUDENT CLASSIFICATION."  THAT LETTER STATES THAT DECISION
ON THE "CLAIM AS CONSCIENTIOUS OBJECTOR" WILL BE PASSED ON LATER.  THE
INFERENCE IS CLEAR-- THAT IT WAS NOT THEN CONSIDERED AND DECIDED. 

THE CHAIRMAN OF THE BOARD TESTIFIED THAT THE CONSCIENTIOUS OBJECTOR
CLAIM WAS NOT CONSIDERED, "BECAUSE THE YOUNG MAN WAS ATTENDING COLLEGE
AND IN MY JUDGMENT HE RATED A 2S QUALIFICATION WHICH WE PROCEEDED TO
GIVE HIM."  HE LATER TESTIFIED THAT IN FEBRUARY 1966 HE, THE CHAIRMAN
OF THE BOARD, FELT "THAT THERE WEREN'T SUFFICIENT FACTS IN THAT TO
MOTIVATE ME TO GRANT THE REGISTRANT THE REQUEST HE SOUGHT."  YET EVEN
THAT AMBIGUOUS STATEMENT IS A FAR CRY FROM CONCLUDING THAT THE BOARD
REJECTED HIS CLAIM TO STATUS AS A CONSCIENTIOUS OBJECTOR.  INDEED, IT
WAS THE DUTY OF THE BOARD UNDER THE REGULATIONS TO CLASSIFY THE
REGISTRANT "IN THE LOWEST CLASS FOR WHICH HE IS DETERMINED TO BE
ELIGIBLE."  32 CFR 1623.2.  AND IT IS CLEAR THAT THE STUDENT
CLASSIFICATION OF II-S IS LOWER THAN THE CLASSIFICATION OF A
CONSCIENTIOUS OBJECTOR, I-O.  IN 1966 THE BOARD THEREFORE HAD NO
OCCASION TO PASS ON THE CONSCIENTIOUS OBJECTOR CLAIM. 

AS RESPECTS THE RECLASSIFICATION OF REGISTRANT IN 1967 THE CHAIRMAN
OF THE BOARD TESTIFIED:  ".  . . I RECALL THAT SUBSEQUENTLY THE YOUNG
MAN FINISHED HIS COLLEGE OR LEFT COLLEGE, I DON'T RECALL, AND DID NOT
FURTHER MERIT A 2S DEFERMENT AT WHICH TIME, SIR, BASED ON NOTHING
FURTHER IN HIS FILE OTHER THAN WHAT WE HAD ALREADY HAD IN THE FILE, WE
GAVE HIM A 1A CLASSIFICATION.  IN DOING THAT, SIR, WE AGAIN REVIEWED
WHAT APPEARED IN THE FILE."  AND THE CHAIRMAN ALSO TESTIFIED:  "HE WAS
NO LONGER IN SCHOOL AND WE HAD NO ALTERNATIVE BUT TO CLASSIFY HIM 1A." 
BUT IT IS CLEAR FROM THE CHAIRMAN'S OWN TESTIMONY THAT THE
CLASSIFICATION OF I-A GRANTED IN 1967 WAS BASED UPON THE SUPPOSITION
THAT THE BOARD HAD DENIED THE CONSCIENTIOUS OBJECTOR CLAIM IN 1966, FOR
THE CHAIRMAN STATED: 

     "BASED ON OUR PREVIOUS DETERMINATION THAT HIS REQUEST FOR

  CONSCIENTIOUS OBJECTION STATUS WAS DENIED, WE HAD NO ALTERNATIVE

  AT THAT TIME BUT TO GIVE HIM A 1-A, WHICH WE DID. 

     "Q.  YOU DIDN'T CONSIDER THE CONSCIENTIOUS OBJECTOR CLAIM
AGAIN

BECAUSE IT HAD BEEN DENIED PREVIOUSLY? 

     "A.  YES-- " 

AND YET, AS THE CHAIRMAN ALSO TESTIFIED, THE BOARD MADE NO DECISION
IN 1966: 

     MR. LANDE (BOARD CHAIRMAN):  "WHEN MR. MCGEE'S RETURN

  APPLICATION CAME IN ASKING FOR HIS DEFERMENT ON THE GROUNDS OF

  CONSCIENTIOUS OBJECTOR, SIR, THAT WAS REVIEWED BY ME AND READ AND

  CAREFULLY CONSIDERED, AS I CONSIDER ALL REQUESTS.  AS I STATED

  BEFORE, IT WAS MY CONSIDERED JUDGMENT UPON CONCLUDING THE READING

  OF IT AND MY CONSIDERATION THAT HE DID NOT RATE THE DEFERMENT. 

        .          .          .          . 

     "Q.  MR. LANDE, AM I CORRECT IN UNDERSTANDING THAT THE
DECISION

 WITH RESPECT TO THIS CONSCIENTIOUS OBJECTOR APPLICATION WAS MADE,

  THEN, BY YOU AND NOT BY THE 

     "THE COURT:  OR WHEN THEY WERE TOLD OR LEARNED THAT HE NO
LONGER WAS IN COLLEGE? 

     "MR. MEYER:  THE ORIGINAL RECEIPT. 

"THE COURT:  HE SAID, AS I RECALL IT, THAT THAT WAS HIS DECISION." 

IT IS, WITH ALL DUE RESPECT, I THINK, A CLEAR MISCARRIAGE OF JUSTICE
TO ALLOW A MAN TO BE SENT OFF TO PRISON WHERE THERE ARE AT BEST ONLY
DUBIOUS GROUND FOR SAYING THAT THE BOARD DISCHARGED ITS STATUTORY DUTY
OF CONSIDERING AND PASSING UPON THE CONSCIENTIOUS OBJECTOR CLAIM. 

THE QUESTION MIGHT NOT LOOM AS IMPORTANT AS IT SEEMS TO BE IN THIS
CASE IF THE CLAIM ITSELF WERE A TRANSPARENT ONE.  BUT THERE IS NOTHING
ON THE FACE OF THE CLAIM OR IN THE RECORD TO DETRACT FROM IT.  THE MAN
WAS A THEOLOGICAL STUDENT STUDYING FOR THE PRIESTHOOD, AND TO SEND HIM
OFF TO PRISON ON THIS RECORD IS EITHER TO SANCTION A FORM OF
ADMINISTRATIVE TRICKERY OR TO ALLOW THE SELECTIVE SERVICE BOARD TO ACT
QUITE IRRESPONSIBLY. 

IF THERE WERE A "LAWLESS" ACT IN THIS CASE, IT WAS COMMITTED BY THE
SELECTIVE SERVICE BOARD. 

IT WAS THE BOARD THAT DEFAULTED, NOT MCGEE.  ITS DUTY UNDER THE
REGULATIONS WAS TO "RECEIVE AND CONSIDER ALL INFORMATION, PERTINENT TO
THE CLASSIFICATION OF A REGISTRANT, PRESENTED TO IT."  32 CFR
1622.1(C).  THE BOARD DID NOT "CONSIDER" THE CLAIM.  SINCE THE BOARD
DID NOT "CONSIDER" THE CLAIM AND REJECT IT, BUT DEFERRED DECISION ON IT
IN 1966 AND THEN IN 1967 SAID THAT THE 2966 DEFERMENT WAS A DECISION ON
THE MERITS, THERE WAS NO WAY IN WHICH MCGEE COULD HAVE MADE A TIMELY
APPEAL TO THE BOARD. 

THIS CASE, ON THE FACTS, IS A MUCH STRONGER ONE FOR DISPENSING WITH
THE NEED TO EXHAUST ADMINISTRATIVE REMEDIES THAN WAS MCKART V. UNITED
STATES, 395 U.S. 185.  IN MCKART THE REGISTRANT FAILED TO APPEAL HIS
CLASSIFICATION OF I-A WHERE HE HAD ENJOYED A IV-A CLASSIFICATION (SOLE
SURVIVING SON STATUS) UNTIL HIS MOTHER DIED.  THEN THE BOARD PUT HIM IN
I-A ON THE GROUND THAT THE "FAMILY UNIT" HAD CEASED TO EXIST.  WE
EXCUSED EXHAUSTION OF REMEDIES ON THE GROUND THAT ONLY A QUESTION OF
LAW WAS INVOLVED.  WE RATIONALIZED THE RESULT AS FOLLOWS: 

"IN SHORT, WE SIMPLY DO NOT THINK THAT THE EXHAUSTION DOCTRINE
CONTRIBUTES SIGNIFICANTLY TO THE FAIRLY LOW NUMBER OF REGISTRANTS WHO
DECIDE TO SUBJECT THEMSELVES TO CRIMINAL PROSECUTION FOR FAILURE TO
SUBMIT TO INDUCTION.  ACCORDINGLY, IN THE PRESENT CASE, WHERE THERE
APPEARS NO SIGNIFICANT INTEREST TO BE SERVED IN HAVING THE SYSTEM
DECIDE THE ISSUE BEFORE IT REACHES THE COURTS, WE DO NOT BELIEVE THAT
PETITIONER'S FAILURE TO APPEAL HIS CLASSIFICATION SHOULD FORECLOSE ALL
JUDICIAL REVIEW."  ID., AT 200. 

BY LIKE REASONING, WE SHOULD CONCLUDE THAT CASES WHERE THE LOCAL
BOARD DOES NOT "CONSIDER" THE CONSCIENTIOUS OBJECTOR CLAIM MUST BE FEW
AND FAR BETWEEN.  MOREOVER, THE TERM "CONSIDER" IS A KEY PART OF A
REGULATION AND JUST AS MUCH A QUESTION OF LAW AS THE PHRASE IN ISSUE IN
MCKART.  MEN SHOULD NOT GO TO PRISON BECAUSE BOARDS ARE EITHER DERELICT
OR VINDICTIVE. 

I WOULD REVERSE THIS JUDGMENT OF CONVICTION. 

ALAN H. LEVINE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE MARVIN M. KARPATKIN AND MELVIN L. WULF. 

WILLIAM BRADFORD REYNOLDS ARGUED THE CAUSE FOR THE UNITED STATES PRO
HAC VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD AND
ASSISTANT ATTORNEY GENERAL WILSON. 

MARVIN B. HAIKEN FILED BRIEFS FOR RICHARD KENNETH LEGRANDE AS AMICUS
CURIAE. 
..END :










TRIANGLE IMPROVEMENT COUNCIL V. RITCHIE, 402 U.S. 497 


       TRIANGLE IMPROVEMENT COUNCIL ET AL. V. RITCHIE,

          COMMISSIONER, STATE ROAD COMMISSION OF WEST VIRGINIA, ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 712.  ARGUED MARCH 22, 1971-- DECIDED MAY 17, 1971 


429 F.2D 423, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE HARLAN, CONCURRING. 

IN LIGHT OF MY BROTHER DOUGLAS' ASSERTION, POST, AT 508, THAT
TODAY'S DISPOSITION MIGHT BE TAKEN TO IMPAIR THE INTEGRITY OF THE "RULE
OF FOUR," SEE FERGUSON V. MOORE-MCCORMACK LINES, 352 U.S. 521, 559-562,
564 (1957) (OPINION OF THIS WRITER), I DEEM IT APPROPRIATE TO SET FORTH
MY REASONS FOR JOINING IN THE DISMISSAL OF THE WRIT AS IMPROVIDENTLY
GRANTED. 

THE FEDERAL-AID HIGHWAY ACT OF 1968 PROVIDED IN PERTINENT PART
THAT: 

     "THE SECRETARY (OF TRANSPORTATION) SHALL NOT APPROVE ANY

  PROJECT (SUCH AS THAT HERE INVOLVED) WHICH WILL CAUSE THE

DISPLACEMENT OF ANY PERSON . . . UNLESS HE RECEIVES SATISFACTORY

  ASSURANCES FROM THE STATE HIGHWAY DEPARTMENT THAT--

        .          .          .          . 

     "(3) WITHIN A REASONABLE PERIOD OF TIME PRIOR TO DISPLACEMENT

THERE WILL BE AVAILABLE, TO THE EXTENT THAT CAN REASONABLY BE

  ACCOMPLISHED, IN AREAS NOT GENERALLY LESS DESIRABLE IN REGARD TO

  PUBLIC UTILITIES AND PUBLIC AND COMMERCIAL FACILITIES AND AT

  RENTS OR PRICES WITHIN THE FINANCIAL MEANS OF THE FAMILIES AND

  INDIVIDUALS DISPLACED, DECENT, SAFE, AND SANITARY DWELLINGS, AS

  DEFINED BY THE SECRETARY, EQUAL IN NUMBER TO THE NUMBER OF AND

  AVAILABLE TO SUCH DISPLACED FAMILIES AND INDIVIDUALS AND

  REASONABLY ACCESSIBLE TO THEIR PLACES OF EMPLOYMENT."  23 U.S.C.

  502 (1964 ED., SUPP. V). 

THE PRINCIPAL ISSUE PRESENTED BY THIS CASE IS WHETHER THAT STATUTE,
EITHER OF ITS OWN FORCE OR TOGETHER WITH THE ADMINISTRATIVE REGULATIONS
PROMULGATED PURSUANT TO IT, PREVENTS THE SECRETARY FROM AUTHORIZING
CONSTRUCTION OF A SEGMENT OF THE INTERSTATE HIGHWAY SYSTEM, EVEN WHERE
THE RIGHTS-OF-WAY HAD BEEN ACQUIRED AND SOME PERSONS DISPLACED PRIOR TO
THE EFFECTIVE DATE OF THE 1968 ACT, UNLESS THE STATE FIRST COMPLIES A
COMPREHENSIVE FORMAL RELOCATION PLAN.  IN SHORT, THE QUESTION IS WHAT
CONSTITUTES "SATISFACTORY ASSURANCES" IN SUCH A CASE. 

SINCE CERTIORARI WAS GRANTED, A NUMBER OF EVENTS HAVE OCCURRED THAT,
IN MY JUDGMENT, HAVE RENDERED THIS CASE WHOLLY INAPPROPRIATE FOR OUR
REVIEW.  FIRST, THE ACT UPON WHICH PETITIONERS BASE THEIR CASE HAS BEEN
REPEALED.  SECONDLY, A NEW STATUTE HAS BEEN ENACTED BY THE CONGRESS
THAT ALTERS DRASTICALLY THE POTENTIAL IMPACT OF ANY DECISION WE MIGHT
REACH IN THIS CASE.  THIRD,WE WERE INFORMED THAT, AS OF THE DATE OR
ORAL ARGUMENT, LESS THAN 10 PERSONS REMAINED TO BE DISPLACED BY THIS
FEDERAL PROJECT.  FINALLY, IN THEIR BRIEF ON THE MERITS IN THIS COURT,
PETITIONERS HAVE ALMOST COMPLETELY ABANDONED THEIR ORIGINAL CLAIM FOR
RELIEF AND NOW SEEK TO BROADEN SUBSTANTIALLY THE NATURE OF THE REMEDY
THEY SEEK. 

THE ORIGINAL PRAYER FOR RELIEF SIMPLY SOUGHT TO ENJOIN FURTHER
DISPLACEMENT PENDING SUBMISSION AND IMPLEMENTATION OF A FORMAL
RELOCATION PLAN BY THE WEST VIRGINIA STATE HIGHWAY DEPARTMENT.  THE
FACT THAT THE STATUTE HAS BEEN REPEALED SINCE CERTIORARI WAS GRANTED
AND THAT LESS THAN 10 PERSONS WOULD BE AFFECTED WERE WE TO ACCEPT
PETITIONERS' LEGAL POSITION RENDERS THIS CASE, I THINK, A CLASSIC
INSTANCE OF A SITUATION WHERE THE EXERCISE OF OUR POWERS OF REVIEW
WOULD BE OF NO SIGNIFICANT CONTINUING NATIONAL IMPORT.  OF COURSE,
EVERY INDIVIDUAL ALLEGING HE HAS BEEN ABUSED BY THE EXERCISE OF FEDERAL
POWER SHOULD, AS A GENERAL MATTER, BE HEARD, EVEN WHERE HIS SITUATION
BECOMES UNIQUE DUE TO REPEAL OR CESSATION OF THE ACTION HE CHALLENGES. 
THAT IS WHY FEDERAL DISTRICT COURTS AND COURTS OF APPEALS ARE PROVIDED
AND VESTED WITH LARGELY OBLIGATORY JURISDICTION.  HEARING SUCH CLAIMS
IS NOT, HOWEVER, A PRINCIPAL PURPOSE FOR WHICH THIS COURT SITS.  SEE
RULE 19 OF THE RULES OF THIS COURT. 

AT THE SAME TIME CONGRESS REPEALED THE 1968 ACT IF ENACTED THE
UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES
ACT OF 1970.  84 STAT. 1894.  ITS PRINCIPAL PURPOSE, AS THE TITLE
IMPLIES, WAS TO ESTABLISH A UNIFORM GOVERNING RULE OF FEDERAL LAW FOR
ALL FEDERALLY DIRECTED AND FEDERALLY FINANCED PROJECTS THAT CAUSE
DISPLACEMENT OF PERSONS AND BUSINESSES.  THE 1970 ACT WAS VERY
CONSCIOUSLY MODELED ON THE 1968 FEDERAL-AID HIGHWAY ACT, FOLLOWING "AS
CLOSELY AS POSSIBLE (ITS) SUBSTANTIVE PROVISIONS," S. REP. NO. 91-488
(1969), IN AN EFFORT TO ASSURE THAT ALL PERSONS UPROOTED BY FEDERAL
AUTHORITY WOULD RECEIVE THE BENEFICENT PROTECTION EARLIER EXTENDED TO
THOSE SITUATED IN THE PATH OF HIGHWAY CONSTRUCTION.  SEE ESPECIALLY 115
CONG.REC.  31535 (REMARKS OF SEN. COOPER).  SECTION 210 OF THE NEW ACT
PROVIDES THAT: 

"(THE HEAD OF A FEDERAL AGENCY SHALL NOT APPROVE ANY GRANT TO . . .
A STATE AGENCY, UNDER WHICH FEDERAL FINANCIAL ASSISTANCE WILL BE
AVAILABLE TO PAY ALL OR PART OF THE COST OF ANY PROGRAM OR PROJECT
WHICH WILL RESULT IN THE DISPLACEMENT OF ANY PERSON ON OR AFTER THE
EFFECTIVE DATE OF THIS TITLE, UNLESS HE RECEIVES SATISFACTORY
ASSURANCES FROM SUCH STATE AGENCY THAT--

        .          .          .  . 

"(2) RELOCATION ASSISTANCE PROGRAMS OFFERING THE SERVICES DESCRIBED
IN SECTION 205 SHALL BE PROVIDED TO SUCH DISPLACED PERSONS; "(3) WITHIN
A REASONABLE PERIOD OF TIME PRIOR TO DISPLACEMENT, DECENT, SAFE, AND
SANITARY REPLACEMENT DWELLINGS WILL BE AVAILABLE TO DISPLACED PERSONS
IN ACCORDANCE WITH SECTION 205(C)(3)."  SECTION 205(C)(3) DESCRIBES IN
SOME DETAIL THE SERVICES THAT MUST BE PROVIDED.  IT DOES NOT, HOWEVER,
EXPLICITLY STATE THAT SUCH "PROGRAM"  SHALL INCLUDE A COMPREHENSIVE
PLAN REFLECTING THE PROJECTED RELOCATION OF EACH INDIVIDUAL AFFECTED. 

ARGUABLY, THE PRESENCE OF THIS PROVISION WOULD ENHANCE THE GENERAL
SIGNIFICANCE OF OUR CONSTRUCTION OF THE RELEVANT, /1/  AND SIMILARLY
WORDED, SECTION OF THE 1968 ACT.  INDEED, MY BROTHER DOUGLAS ASSERTS
THAT "ANY NECESSARY INTERPRETATION OF THE 1968 (ACT) WOULD BE EQUALLY
APPLICABLE TO THE 1970 ACT."  POST, AT 504, N. 1.  FOR ME, HOWEVER,
THIS DOES NOT INCREASE, BUT RATHER FURTHER DIMINISHES, THE
APPROPRIATENESS OF OUR RULING IN THE INSTANT CASES. 

THIS CASE COMES TO US ON A RECORD THAT SHEDS LIGHT ONLY UPON THE
PROPER CONSTRUCTION OF THE 1968 ACT WHICH GOVERNED ONLY FEDERAL
PROGRAMS, ADMINISTERED BY ONE AGENCY, THAT AID HIGHWAY CONSTRUCTION BY
THE STATES.  IT NOW APPEARS THAT ANYTHING WE MIGHT HOLD IN THAT REGARD
MAY VERY WELL HAVE TO BE CARRIED OVER IN FULL FORCE TO GOVERN THE
ADMINISTRATION OF THE LARGE NUMBER OF FEDERAL PROGRAMS THAT BRING ABOUT
HUMAN DISPLACEMENT.  TO RENDER OUR DETERMINATION UPON SUCH A WIDE
RANGING ISSUE WE SHOULD, AT A MINIMUM, HAVE THE BENEFIT OF THE THINKING
OF LOWER FEDERAL COURTS ON THIS PROBLEM, AS WELL AS SOME KNOWLEDGE OF
THE RESPONSES OF THE VARIOUS AFFECTED AGENCIES TO THIS NEW STATUTE. 
YET WE ARE ENTIRELY WITHOUT THESE ESSENTIAL AIDS. 

TO THE EXTENT, THEN, THAT THE INSTANT CASE HAS ANY SIGNIFICANCE FOR
THE FUTURE, IT SEEMS TO ME THAT SUCH ISSUES SHOULD AWAIT A CASE ARISING
UNDER THE NEW STATUTE.  INSOFAR AS THE CASE CAN BE SAID TO PRESENT AN
ISSUE ONLY AS TO THE PROPER CONSTRUCTION OF THE 1968 ACT, EVENTS
SUBSEQUENT TO THE GRANTING OF THE WRIT HAVE, AS NOTED PREVIOUSLY,
ROBBED IT OF ALL NATIONAL SIGNIFICANCE. 

FINALLY, IT IS TROUBLESOME THAT PETITIONERS HAVE VIRTUALLY ABANDONED
THEIR INITIAL CLAIM FOR RELIEF.  INSTEAD OF THE PREPARATION OF A PLAN,
/2/  THEY NOW SEEK A DECREE TO THE DISTRICT COURT SHOULD BRING BEFORE
IT ALL PERSONS DISPLACED BY THE HIGHWAY AND INQUIRE WHETHER THEIR NEW
LOCATIONS MEET STATUTORY STANDARDS.  AS TO THIS ISSUE, THERE IS NEITHER
AN OPINION BELOW NOR A RECORD UPON WHICH TO JUDGE THE CLAIM.  THE CASE
WAS TRIED UPON A THEORY THAT THE STATUTES REQUIRE A FORMAL PLAN, NOT
THAT NUMEROUS INDIVIDUALS HAD BEEN IMPROPERLY RELOCATED IN FACT.  AND
THERE WOULD SEEM TO BE NO BAR TO THE INITIATION OF SUBSEQUENT
PROCEEDINGS, IN THE DISTRICT COURT, RAISING INDIVIDUAL CLAIMS OF THIS
SORT WHERE THEY DO EXIST. 

IN LIGHT OF THIS CHANGED POSTURE OF THE CASE, I DO NOT THINK ITS
ADJUDICATION WOULD BE A PROVIDENT EXPENDITURE OF THE ENERGIES OF THE
COURT.  CF. SANKS V. GEORGIA, 401 U.S. 144 (1971). 

/1/  THE 1968 ACT IS STILL THE RELEVANT FOCUS OF THIS CLASS ACTION. 
THE 1970 ACT DID NOT BECOME EFFECTIVE UNTIL JANUARY 1971, AND IT
SPECIFICALLY PRESERVES RIGHTS AND LIABILITIES EXISTING UNDER PRIOR
ACTS.  SEC. 220(B).  THOSE PETITIONERS NOT RELOCATED PRIOR TO THE
EFFECTIVE DATE OF THE 1970 ACT MAY HAVE A CLAIM UNDER THE LATTER
STATUTE AS WELL. 

/2/  PETITIONERS HAVE NOT WHOLLY ABANDONED THEIR ORIGINAL CLAIM FOR
RELIEF.  THEY ARGUE THAT PREPARATION OF A PLAN "MAY BE APPROPRIATE
RELIEF" FOR THOSE NOT YET RELOCATED.  PETITIONERS' BRIEF 51.  PRIME
EMPHASIS, HOWEVER, IS PLACED UPON THE NEW REMEDIAL TECHNIQUE DESCRIBED
IN THE TEXT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL CONCUR, DISSENTING. 

THIS CASE INVOLVES TWO FEDERAL-AID INTERSTATE HIGHWAY PROJECTS IN
CHARLESTON, WEST VIRGINIA.  CHARLESTON LIES IN A NARROW VALLEY, ALONG
THE KANAWHA RIVER AND IS BISECTED ON THE EAST BY THE ELK RIVER WHICH
JOINS THE KANAWHA NEAR THE CENTER OF THE CITY.  THE TRIANGLE DISTRICT
IS LOCATED ALONG THE SOUTH SIDE OF THE ELK AND NEAR ITS MOUTH.  MANY OF
THE RESIDENTS OF THE TRIANGLE DISTRICT ARE ELDERLY AND ALMOST ALL HAVE
COMPARATIVELY LOW INCOMES.  AS OFTEN HAPPENS WITH INTERSTATE HIGHWAYS,
THE ROUTE SELECTED WAS THROUGH THE POOR AREA OF TOWN, NOT THROUGH THE
AREA WHERE THE POLITICALLY POWERFUL PEOPLE LIVE. 

THE COMMON URBAN HOUSING SHORTAGE IS SEVERE IN CHARLESTON, IN PART,
BECAUSE MANY HOMES HAVE BEEN DEMOLISHED FOR PUBLIC PROJECTS.  THE
IMPACT OF PUBLIC PROJECTS IN THE TRIANGLE HAS BEEN EXCEPTIONALLY
SEVERE.  LAND CLEARANCE FOR A PROPOSED EXPANSION OF A LOCAL WATER
COMPANY DISPLACED SOME 243 PERSONS A FEW YEARS AGO.  THE PLANNED
INTERSTATE HIGHWAY WILL DISPLACE ABOUT 300 MORE.  AND A PROPOSED URBAN
RENEWAL PROJECT (WHICH HAS BEEN POSTPONED INDEFINITELY BECAUSE OF LAC
OF REPLACEMENT HOUSING) WILL DISPLACE ALMOST ALL OF THE AREA'S 2,000
RESIDENTS. 

ALTHOUGH ALTERNATIVE ROUTES FOR THE INTERSTATE HIGHWAY WERE
CONSIDERED, THE ROUTE THROUGH TRIANGLE WAS SELECTED AND APPROVED IN
1964.  FEDERAL AUTHORIZATION FOR THE RIGHT-OF-WAY WAS GIVEN IN 1966 AND
1967.  THERE WERE ABOUT 300 PERSONS TO BE DISLOCATED WITHIN TRIANGLE. 

ON AUGUST 23, 1968, THE 1968 AMENDMENTS TO THE FEDERAL-AID HIGHWAY
ACT RELATING TO RELOCATION BENEFITS FOR PERSONS DISPLACED BY FEDERAL
AID HIGHWAYS BECAME EFFECTIVE.  BY THAT DATE SOME 60% OF THE PROPOSED
RIGHT-OF-WAY IN THE PRESENT CASE HAD BEEN ACQUIRED BY THE STATE.  BUT
THE VAST MAJORITY OF PERSONS WITHIN THE TRIANGE AREA, WHO WERE TO BE
DISLOCATED BY THE HIGHWAY, HAD NOT YET BEEN DISPLACED FROM THE AREA AS
OF THE EFFECTIVE DATE OF THE 1968 AMENDMENTS. 

JUST OVER THREE MONTHS AFTER THE 1968 AMENDMENTS BECAME EFFECTIVE
PETITIONER COMMENCED THIS ACTION, ARGUING THAT THE AMENDMENTS HAD NOT
BEEN COMPLIED WITH AND THAT THERE WAS NO STATE PLAN DISCLOSING THE
EXISTENCE OF ADEQUATE REPLACEMENT HOUSING.  PRIOR TO TRIAL ONLY 17
HOUSEHOLDS HAD BEEN MOVED AND OVER 280 PERSONS REMAINED TO BE
DISPLACED.  ONCE THE CONSTRUCTION BEGAN, HOWEVER, DISPLACEMENT DID
OCCUR AND THE SOLICITOR GENERAL'S BRIEF, FILED JUST BEFORE ORAL
ARGUMENT, INFORMS US THAT ONLY NINE PERSONS ARE LEFT IN THE TRIANGLE
AND VIRTUALLY ALL THE VACANT HOUSING HAS BEEN DEMOLISHED PURSUANT TO AN
ORDER OF UNDER SECRETARY OF TRANSPORTATION BEGGS GIVEN NOVEMBER 6,
1970. 

MUCH IS MADE OF THE FACT THAT ALTHOUGH ORIGINALLY ABOUT 300 PEOPLE
WERE TO BE DISPLACED IN THE TRIANGLE, THERE REMAIN ONLY NINE WHO HAVE
NOT BEEN TAKEN CARE OF OR WHO HAVE NOT ON THEIR OWN FOUND NEW SHELTER. 
IF ONLY ONE PERSON WERE INVOLVED, THE CASE WOULD, IN MY VIEW, BE NO
DIFFERENT.  FOR UNDER OUR REGIME EVEN ONE PERSON CAN CALL A HALT WHERE
GOVERNMENT ACTS LAWLESSLY.  AND THIS IS PATENTLY A CASE WHERE THE
FEDERAL BUREAUCRACY HAS DEFIED A CONGRESSIONAL MANDATE. 

IT IS NOTORIOUS THAT INTERSTATE HIGHWAYS HAVE LEFT DISPLACED
CITIZENS WITHOUT HOMES BECAUSE NO EFFORTS OR INADEQUATE EFFORTS HAVE
BEEN MADE FOR RELOCATION.  IN 1962 CONGRESS AMENDED THE FEDERAL-AID
HIGHWAY ACT TO REQUIRE ASSURANCES OF "RELOCATION ADVISORY ASSISTANCE"
AND AUTHORIZED MINIMAL PAYMENTS FOR RELOCATION ASSISTANCE.  23 U.S.C.
133 (REPEALED BY PUB. L. 90-495, SEC. 37, 82 STAT. 836).  BUT, AS JUDGE
SOBELOFF NOTED BELOW, THE "COLD ADMINISTRATIVE INDIFFERENCE TO THE
PLIGHT OF THOSE LEFT WITHOUT ROOFS OVER THEIR HEADS MOUNTED TO THE
LEVEL OF A NATIONAL SCANDAL."  429 F.2D 423, 424 (DISSENTING OPINION). 
IN 1968 CONGRESS PASSED CERTAIN AMENDMENTS TO THE ACT TO RECTIFY THIS
"NATIONAL SCANDAL."  /1/ 

THE 1968 AMENDMENTS PROVIDE THAT ANY PERSON DISPLACED BY A FEDERAL
AID HIGHWAY PROJECT "MAY ELECT TO RECEIVE ACTUAL REASONABLE EXPENSES IN
MOVING."  23 U.S.C. 505 (1964 ED., SUPP. V).  /2/  IF A PROPERTY OWNER,
HE IS ENTITLED TO A PAYMENT FROM THE STATE, IN ADDITION TO THE
ACQUISITION PRICE OF THE PROPERTY TAKEN, OF UP TO $5,000, REPRESENTING
THE DIFFERENCE BETWEEN THE ACQUISITION PRICE AND THE COST OF OBTAINING
A COMPARABLE DWELLING.  A TENANT MAY RECEIVE UP TO $1,500 TO ENABLE HIM
TO RENT FOR A PERIOD OF TWO YEARS, OR MAKE THE DOWN PAYMENT ON THE
PURCHASE OF A DECENT, SAFE, AND SANITARY DWELLING "NOT . . . LESS
DESIRABLE" THAN HIS EXISTING ONE.  23 U.S.C. 506 (1964 ED., SUPP. V). 
/3/     THE DUTY OF THE SECRETARY OF TRANSPORTATION UNDER THE
AMENDMENTS WAS MADE EXPLICIT.  HE IS TO SEE THAT THE AMENDMENTS ARE
EFFECTIVE.  UNDER 23 U.S.C. 502 (1964 ED., SUPP. V) /4/  HE IS NOT TO
APPROVE ANY PROJECT "WHICH WILL CAUSE THE DISPLACEMENT OF ANY PERSON,
BUSINESS, OR FARM OPERATION UNLESS HE RECEIVES SATISFACTORY ASSURANCES
FROM THE STATE HIGHWAY DEPARTMENT THAT" (1) FAIR AND REASONABLE
RELOCATION AND OTHER PAYMENTS WILL BE AFFORDED IN ACCORDANCE WITH THE
ACT, (2) RELOCATION ASSISTANCE PROGRAMS WILL BE AFFORDED IN ACCORDANCE
WITH THE ACT, AND (3) "WITHIN A REASONABLE PERIOD OF TIME PRIOR TO
DISPLACEMENT THERE WILL BE AVAILABLE, TO THE EXTENT THAT CAN REASONABLY
BE ACCOMPLISHED, IN AREAS NOT GENERALLY LESS DESIRABLE IN REGARD TO
PUBLIC UTILITIES AND PUBLIC AND COMMERCIAL FACILITIES AND AT RENTS OR
PRICES WITHIN THE FINANCIAL MEANS OF THE FAMILIES AND INDIVIDUALS
DISPLACED, DECENT, SAFE, AND SANITARY DWELLINGS . . . EQUAL IN NUMBER
TO THE NUMBER OF AND AVAILABLE TO SUCH DISPLACED FAMILIES AND
INDIVIDUALS AND REASONABLY ACCESSIBLE TO THEIR PLACES OF EMPLOYMENT." 

SATISFACTORY ASSURANCES HAVE BEEN STRICTLY DEFINED BY REGULATION. 
INSTRUCTIONAL MEMORANDUM 80-1-68, SEC. 5A (5) OF THE DEPARTMENT OF
TRANSPORTATION REQUIRES THAT THE PROGRAM BE "REALISTIC."  "THE STATE
HIGHWAY DEPARTMENT, PRIOR TO PROCEEDING WITH . . . CONSTRUCTION SHALL
FURNISH . . . INFORMATION FOR REVIEW AND APPROVAL BY THE DIVISION
ENGINEER (CONCERNING METHODS) BY WHICH THE NEEDS OF EVERY INDIVIDUAL TO
BE DISPLACED WILL BE EVALUATED AND CORRELATED WITH AVAILABLE DECENT,
SAFE, AND SANITARY HOUSING (AND THE METHODS) BY WHICH THE STATE WILL .
. . INVENTORY . . . CURRENTLY AVAILABLE COMPARABLE HOUSING."  ID., AT
SEC. 7B.  INSTRUCTIONAL MEMORANDUM 80-1-68 WAS ISSUED ON SEPTEMBER 5,
1968, SEC. 5B OF WHICH STATED THAT "ASSURANCES ARE NOT REQUIRED WHERE
AUTHORIZATION TO ACQUIRE RIGHT-OF-WAY OR TO COMMENCE CONSTRUCTION HAS
BEEN GIVEN PRIOR TO THE ISSUANCE OF THIS MEMORANDUM."  /5/  EVEN WITH
THIS RESTRICTION, THE MEMORANDUM WOULD APPLY TO THIS CASE SINCE
CONSTRUCTION WAS NOT AUTHORIZED UNTIL THE FALL OF 1969. 

THE ROUTE FOR THE HIGHWAY WAS APPROVED IN 1964 AND APPROVAL FOR
ACQUISITION OF RIGHT-OF-WAY WAS GIVEN IN BOTH 1966 AND 1967.  IN EARLY
1968 THE DIRECTOR OF PUBLIC ROADS ISSUED A MEMORANDUM TO HIS REGIONAL
AND STATE ADMINISTRATORS DIRECTING THAT RELOCATION PROBLEMS BE
CONSIDERED MORE EXTENSIVELY.  A STATE PLAN FOR CHARLESTON WAS REVIEWED
AND A FEDERAL DIVISION ENGINEER STATED: 

"IN THE CHARLESTON AREA THE STATE DID SECURE VALUABLE INFORMATION
RELATIVE TO PERSONS TO BE DISLOCATED BY A SURVEY WHICH WAS A VALUABLE
ASSIST IN DEFINING THE OVERALL PROBLEM INVOLVED.  IT WOULD NOT BE
CONSIDERED, IN OUR OPINION, A COMPLETE RELOCATION PLAN SINCE IT DID NOT
PROVIDE INFORMATION EITHER FACTUAL, ESTIMATED OR PROJECTED AS TO THE
AVAILABILITY OF REPLACEMENT HOUSING."  SINCE THERE WAS NO NEED FOR A
RELOCATION PLAN AT ALL, THE DIVISION ENGINEER FELT THAT THE "HALF OF A
PLAN" OF THE STATE WAS TO THEIR CREDIT.  THEN ON AUGUST 23, 1968, THE
1968 AMENDMENTS BECAME EFFECTIVE.  SECTION 511(3) (1964 ED., SUPP. V)
/6/  PROVIDED THAT A DISPLACED PERSON WAS "ANY PERSON WHO MOVES FROM
REAL PROPERTY ON OR AFTER THE EFFECTIVE DATE OF THIS CHAPTER" AS A
RESULT OF ACQUISITION FOR A FEDERAL-AID HIGHWAY. 

THE SECRETARY DID NOT REQUIRE THE STATE TO COMPLY WITH THE
REQUIREMENTS OF SEC. 502.  YET AS OF THE EFFECTIVE DATE OF THE 1968
AMENDMENTS THERE HAD BEEN NO AUTHORIZATION OF CONSTRUCTION AND AT LEAST
280 PERSONS REMAINED IN THE PROJECT AREA TO BE DISLOCATED.  THE STATE
FINALLY DID PREPARE A RELOCATION PLAN, BUT ONLY IN RESPONSE TO THIS
LAWSUIT AND WHILE THE FEDERAL OFFICIALS HAVE OBTAINED A COPY OF IT, WE
ARE TOLD THEY HAVE MADE NO ATTEMPT TO REVIEW IT.  THE PLAN THAT WAS
PREPARED DOES NOT CONSIDER COMPETING AND SIMULTANEOUS NEEDS OF OTHER
DISPLACED PERSONS BECAUSE COMPETITION WAS NOT CONSIDERED RELEVANT.  NO
FORMAL PLAN FOR RELOCATION WAS SUBMITTED TO THE DIVISION ENGINEER
BECAUSE OF THE ADMINISTRATIVE INTERPRETATION THAT IF AUTHORIZATION TO
ACQUIRE RIGHT-OF-WAY HAD BEEN GIVEN PRIOR TO AUGUST 23, 1968, THEN THE
1968 AMENDMENTS WERE OF NO EFFECT.  SUBSEQUENT TO THE DISTRICT COURT
ORDER DISMISSING PETITIONERS'  COMPLAINT CONSTRUCTION WAS AUTHORIZED. 

THIS PETITION SHOULD NOT BE DISMISSED AS IMPROVIDENTLY GRANTED.  OUR
"RULE OF FOUR"  /7/  ALLOWS ANY FOUR JUSTICES TO VOTE TO GRANT
CERTIORARI AND SET THE CASE FOR CONSIDERATION ON THE MERITS.  THE FOURT
WHO NOW DISSENT WERE THE ONLY ONES TO VOTE TO GRANT THE PETITION.  THE
RULE SHOULD NOT BE CHANGED TO A "RULE OF FIVE" BY ACTIONS OF THE FIVE
JUSTICES WHO ORIGINALLY OPPOSED CERTIORARI.  IT IS IMPROPER FOR THEM TO
DISMISS THE CASE AFTER ORAL ARGUMENT UNLESS ONE OF THE FOUR WHO VOTED
TO GRANT MOVES SO TO DO, WHICH HAS NOT OCCURRED HERE.  AS MR. JUSTICE
HARLAN HAS NOTED IT WOULD SAVE TIME AND MONEY IF THE FIVE WOULD DISMISS
AS IMPROVIDENTLY GRANTED IMMEDIATELY AFTER CERTIORARI IS GRANTED RATHER
THAN WAITING FOR BRIEFS AND ORAL ARGUMENT.  FERGUSON V. MOORE-MCCORMACK
LINES, 352 U.S. 521, 560 (SEPARATE OPINION).  AS JUSTICE HARLAN'S
OPINION IN FERGUSON MAKES CLEAR, IT IS THE DUTY OF THE FIVE OPPOSING
CERTIORARI TO PERSUADE OTHERS AT CONFERENCE, BUT, FAILING THAT, TO VOTE
ON THE MERITS OF THE CASE.  ID., AT 562.  HIS ADVICE SHOULD BE HEEDED
HERE, LEST THE INTEGRITY OF THE "RULE OF FOUR" BE IMPAIRED. 

I THEREFORE DISSENT FROM A DISMISSAL OF THIS PETITION. 

/1/  IT IS TRUE, OF COURSE, THAT THE 1968 AMENDMENTS WERE REPEALED
BY THE UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION
POLICIES ACT OF 1970, 84 STAT. 1894.  THAT ACT, HOWEVER, IS SO SIMILAR
TO THE 1968 AMENDMENTS THAT ANY NECESSARY INTERPRETATION OF THE 1968
AMENDMENTS WOULD BE EQUALLY APPLICABLE TO THE 1970 ACT.  FOR
CONVENIENCE I HAVE PROVIDED PARALLEL CITATIONS IN THE FOOTNOTES. 

/2/  CF. SEC. 202 OF THE 1970 ACT. 

/3/  CF. SECS. 203 AND 204 OF THE 1970 ACT.  THE PAYMENTS ARE
SUBSTANTIALLY HIGHER UNDER THE NEW ACT. 

/4/  CF. SEC. 210 OF THE 1970 ACT:  "NOTWITHSTANDING ANY OTHER LAW,
THE HEAD OF A FEDERAL AGENCY SHALL NOT APPROVE ANY GRANT TO, OR
CONTRACT OR AGREEMENT WITH, A STATE AGENCY, UNDER WHICH FEDERAL
FINANCIAL ASSISTANCE WILL BE AVAILABLE TO PAY ALL OR PART OF THE COST
OF ANY PROGRAM OR PROJECT WHICH WILL RESULT IN THE DISPLACEMENT OF ANY
PERSON ON OR AFTER THE EFFECTIVE DATE OF THIS TITLE, UNLESS HE RECEIVES
SATISFACTORY ASSURANCES FROM SUCH STATE AGENCY THAT-- 

"(1) FAIR AND REASONABLE RELOCATION PAYMENTS AND ASSISTANCE SHALL BE
PROVIDED TO OR FOR DISPLACED PERSONS, AS ARE REQUIRED TO BE PROVIDED BY
A FEDERAL AGENCY UNDER SECTIONS 202, 203, AND 204 OF THIS TITLE; 

"(2) RELOCATION ASSISTANCE PROGRAMS OFFERING THE SERVICES DESCRIBED
IN SECTION 205 SHALL BE PROVIDED TO SUCH DISPLACED PERSONS; 

"(3) WITHIN A REASONABLE PERIOD OF TIME PRIOR TO DISPLACEMENT,
DECENT, SAFE, AND SANITARY REPLACEMENT DWELLINGS WILL BE AVAILABLE TO
DISPLACED PERSONS IN ACCORDANCE WITH SECTION 205(C)(3)." 

502(3) MENTIONED INFRA IN THE TEXTUAL PARAGRAPH. 

/5/  THE SECRETARY, HOWEVER, HAS SUBSEQUENTLY CHANGED THAT POSITION
AND THE MEMORDANUM NOW APPLIES TO ALL APPROVALS OF CONSTRUCTION.  SEE
MEMORANDUM OF SECRETARY OF TRANSPORTATION:  IMPLEMENTATION OF
REPLACEMENT HOUSING POLICY, JANUARY 15, 1970; FEDERAL HIGHWAY
ADMINISTRATION CIRCULAR MEMORANDUM:  RELOCATION ASSISTANCE--
AVAILABILITY OF REPLACEMENT HOUSING, MARCH 27, 1970. 

/6/  SEC. 101(6) OF THE 1970 ACT. 

/7/  THE PROBLEM IS AN OLD AND RECURRING ONE.  MR. JUSTICE
FRANKFURTER TOOK THE POSITION THAT EVEN THE FIVE WHO VOTED TO DENY THE
PETITION CAN, AFTER ORAL ARGUMENT, PROPERLY DISMISS THE WRIT AS
IMPROVIDENTLY GRANTED.  UNITED STATES V. SHANNON, 342 U.S. 288, 294
297.  BUT I THOUGHT THEN-- AND STILL THINK-- THAT SUCH A PRACTICE
IMPAIRS "THE INTEGRITY OF OUR CERTIORARI JURISDICTION."  ID., AT 298. 

"BY LONG PRACTICE-- ANNOUNCED TO THE CONGRESS AND WELL-KNOWN TO THIS
BAR-- IT TAKES FOUR VOTES OUT OF A COURT OF NINE TO GRANT A PETITION
FOR CERTIORARI.  IF FOUR CAN GRANT AND THE OPPOSING FIVE DISMISS, THEN
THE FOUR CANNOT GET A DECISION OF THE CASE ON THE MERITS.  THE
INTEGRITY OF THE FOUR-VOTE RULE ON CERTIORARI WOULD THEN BE IMPAIRED." 
IBID. 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE JAMES M. NABRIT III, CHARLES STEPHEN RALSTON, ELIZABETH B.
DUBOIS, AND THOMAS J. O'SULLIVAN. 

WILLIAM BRADFORD REYNOLDS ARGUED THE CAUSE FOR THE FEDERAL
RESPONDENTS PRO HAC VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD AND ASSISTANT ATTORNEY GENERAL GRAY.  STANLEY E. PREISER
ARGUED THE CAUSE AND FILED A BRIEF FOR THE STATE RESPONDENTS. 

KENNETH F. PHILLIPS FILED A BRIEF FOR THE NATIONAL HOUSING AND
ECONOMIC DEVELOPMENT LAW PROJECT AS AMICUS CURIAE URGING REVERSAL. 
..END :




MCGAUTHA V. CALIFORNIA, 402 U.S. 183 


       MCGAUTHA V. CALIFORNIA

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

        NO. 203.  ARGUED NOVEMBER 9, 1970-- DECIDED MAY 3, 1971
/0/ 


PETITIONER IN NO. 203 WAS CONVICTED OF FIRST-DEGREE MURDER IN
CALIFORNIA, AND WAS SENTENCED TO DEATH.  THE PENALTY WAS LEFT TO THE
JURY'S ABSOLUTE DISCRETION, AND PUNISHMENT WAS DETERMINED IN A SEPARATE
PROCEEDING FOLLOWING THE TRIAL ON THE ISSUE OF GUILT.  PETITIONER IN
NO. 204 WAS CONVICTED OF FIRST-DEGREE MURDER, AND WAS SENTENCED TO
DEATH IN OHIO, WHERE THE JURY, WHICH ALSO HAD ABSOLUTE PENALTY
DISCRETION, DETERMINED GUILT AND PENALTY AFTER A SINGLE TRIAL AND IN A
SINGLE VERDICT.  CERTIORARI WAS GRANTED TO CONSIDER WHETHER
PETITIONERS' RIGHTS WERE INFRINGED BY PERMITTING THE DEATH PENALTY
WITHOUT STANDARDS TO GOVERN ITS IMPROSITION, AND IN NO. 204, TO
CONSIDER THE CONSTITUTIONALITY OF A SINGLE GUILT AND PUNISHMENT
PROCEEDING.  HELD: 

1.  IN LIGHT OF HISTORY, EXPERIENCE, AND THE LIMITATIONS OF HUMAN
KNOWLEDGE IN ESTABLISHING DEFINITIVE STANDARDS, IT IS IMPOSSIBLE TO SAY
THAT LEAVING TO THE UNTRAMMELED DISCRETION OF THE JURY THE POWER TO
PRONOUNCE LIFE OR DEATH IN CAPITAL CASES VIOLATES ANY PROVISION OF THE
CONSTITUTION.  PP. 196-208. 

2.  THE CONSTITUTION DOES NOT PROHIBIT THE STATES FROM CONSIDERING
THAT THE COMPASSIONATE PURPOSES OF JURY SENTENCING IN CAPITAL CASES ARE
BETTER SERVED BY HAVING THE ISSUES OF GUILT AND PUNISHMENT RESOLVED IN
A SINGLE TRIAL THAN BY FOCUSING THE JURY'S ATTENTION SOLELY ON
PUNISHMENT AFTER GUILT HAS BEEN DETERMINED.  PP. 208-222. 

(A) PETITIONER IN NO. 204 HAS FAILED TO SHOW THAT HIS UNITARY TRIAL
VIOLATED THE CONSTITUTION BY FORCING "THE MAKING OF DIFFICULT
JUDGMENTS" IN HIS DECISION WHETHER TO REMAIN SILENT ON THE ISSUE OF
GUILT AT THE COST OF SURRENDERING HIS CHANCE TO PLEAD HIS CASE ON THE
PUNISHMENT ISSUE.  SIMMONS V. UNITED STATES, 390 U.S. 377,
DISTINGUISHED.  PP. 210-213. 

(B) THE POLICIES OF THE PRIVILEGE AGAINST SELF-INCRIMINATION ARE NOT
OFFENDED WHEN A DEFENDANT IN A CAPITAL CASE YIELDS TO THE PRESSURE TO
TESTIFY ON THE ISSUE OF PUNISHMENT AT THE RISK OF DAMAGING HIS CASE ON
GUILT.  PP. 213-217. 

(C) OHIO DOES PROVIDE FOR THE COMMON-LAW RITUAL OF ALLOCUTION, BUT
THE STATE NEED NOT PROVIDE PETITIONER AN OPPORTUNITY TO SPEAK TO THE
JURY FREE FROM ANY ADVERSE CONSEQUENCES ON THE ISSUE OF GUILT.  PP. 217
220. 

NO. 293, 70 CAL.2D 770, 452 P.2D 650; AND NO. 204, 18 OHIO ST.2D
182, 248 N.E.2D 614, AFFIRMED. 

HARLAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  BLACK, J., FILED
A SEPARATE OPINION, POST, P. 225.  DOUGLAS, J., FILED AN OPINION
DISSENTING IN NO. 204, IN WHICH BRENNAN AND MARSHALL, JJ., JOINED,
POST, P. 226.  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH
DOUGLAS AND MARSHALL, JJ., JOINED, POST, P. 248. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS MCGAUTHA AND CRAMPTON WERE CONVICTED OF MURDER IN THE
FIRST DEGREE IN THE COURTS OF CALIFORNIA AND OHIO RESPECTIVELY AND
SENTENCED TO DEATH PURSUANT TO THE STATUTES OF THOSE STATES.  IN EACH
CASE THE DECISION WHETHER THE DEFENDANT SHOULD LIVE OR DIE WAS LEFT TO
THE ABSOLUTE DISCRETION OF THE JURY.  IN MCGAUTHA'S CASE THE JURY, IN
ACCORDANCE WITH CALIFORNIA LAW, DETERMINED PUNISHMENT IN A SEPARATE
PROCEEDING FOLLOWING THE TRIAL ON THE ISSUE OF GUILT.  IN CRAMPTON'S
CASE, IN ACCORDANCE WITH OHIO LAW, THE JURY DETERMINED GUILT AND
PUNISHMENT AFTER A SINGLE TRIAL AND IN A SINGLE VERDICT.  WE GRANTED
CERTIORARI IN THE MCGAUTHA CASE LIMITED TO THE QUESTION WHETHER
PETITIONER'S CONSTITUTIONAL RIGHTS WERE INFRINGED BY PERMITTING THE
JURY TO IMPOSE THE DEATH PENALTY WITHOUT ANY GOVERNING STANDARDS.  398
U.S. 936 (1970).  WE GRANTED CERTIORARI IN THE CRAMPTON CASE LIMITED TO
THAT SAME QUESTION AND TO THE FURTHER QUESTION WHETHER THE JURY'S
IMPOSITION OF THE DEATH SENTENCE IN THE SAME PROCEEDING AND VERDICT AS
DETERMINED THE ISSUE OF GUILT WAS CONSTITUTIONALLY PERMISSIBLE.  IBID.
/1/  FOR THE REASONS THAT FOLLOW, WE FIND NO CONSTITUTIONAL INFIRMITY
IN THE CONVICTION OF EITHER PETITIONER, AND WE AFFIRM IN BOTH CASES. 

        I 

IT WILL PUT THE CONSTITUTIONAL ISSUES IN CLEARER FOCUS TO BEGIN BY
SETTING OUT THE COURSE WHICH EACH TRIAL TOOK. 

A. MCGAUTHA'S GUILT TRIAL 

MCGAUTHA AND HIS CODEFENDANT WILKINSON WERE CHARGED WITH COMMITTING
TWO ARMED ROBBERIES AND A MURDER ON FEBRUARY 14, 1967.  /2/  IN
ACCORDANCE WITH CALIFORNIA PROCEDURE IN CAPITAL CASES, THE TRIAL WAS IN
TWO STAGES, A GUILT STAGE AND A PUNISHMENT STAGE.  /3/  AT THE GUILT
TRIAL THE EVIDENCE TENDED TO SHOW THAT THE DEFENDANTS, ARMED WITH
PISTOLS, ENTERED THE MARKET OF MRS. PON LOCK EARLY IN THE AFTERNOON OF
THE MURDER.  WHILE WILKINSON KEPT A CUSTOMER UNDER GUARD, MCGAUTHA
TRAINED HIS GUN ON MRS. LOCK AND TOOK ALMOST $300.  ROUGHLY THREE HOURS
LATER, MCGAUTHA AND WILKINSON HELD UP ANOTHER STORE, THIS ONE OWNED BY
MRS. BENJAMIN SMETANA AND OPERATED BY HER WITH HER HUSBAND'S
ASSISTANCE.  WHILE ONE DEFENDANT FORCIBLY RESTRAINED A CUSTOMER, THE
OTHER STRUCK MRS. SMETANA ON THE HEAD.  A SHOT WAS FIRED, FATALLY
WOUNDING MR. SMETANA.  WILKINSON'S FORMER GIRL FRIEND TESTIFIED THAT
SHORTLY AFTER THE ROBBERY MCGAUTHA TOLD HER HE HAD SHOT A MAN AND
SHOWED HER AN EMPTY CARTRIDGE IN THE CYLINDER OF HIS GUN.  OTHER
EVIDENCE AT THE GUILT STAGE WAS INCONCLUSIVE ON THE ISSUE AS TO WHO
FIRED THE FATAL SHOT.  THE JURY FOUND BOTH DEFENDANTS GUILTY OF TWO
COUNTS OF ARMED ROBBERY AND ONE COUNT OF FIRST-DEGREE MUDER AS
CHARGED. 

      B. MCGAUTHA'S PENALTY TRIAL 

AT THE PENALTY TRIAL, WHICH TOOK PLACE ON THE FOLLOWING DAY BUT
BEFORE THE SAME JURY, THE STATE WAIVED ITS OPENING, PRESENTED EVIDENCE
OF MCGAUTHA'S PRIOR FELONY CONVICTIONS AND SENTENCES, SEE N. 2, SUPRA,
AND THEN RESTED.  WILKINSON TESTIFIED IN HIS OWN BEHALF, RELATING HIS
UNHAPPY CHILDHOOD IN MISSISSIPPI AS THE SON OF A WHITE FATHER AND A
NEGRO MOTHER, HIS HONORABLE DISCHARGE FROM THE ARMY ON THE SCORE OF HIS
LOW INTELLIGENCE, HIS REGULAR ATTENDANCE AT CHURCH, AND HIS GOOD RECORD
FOR HOLDING JOBS AND SUPPORTING HIS MOTHER AND SIBLINGS UP TO THE TIME
HE WAS SHOT IN THE BACK IN AN UNPROVOKED ASSAULT BY A STREET GANG. 
THEREAFTER, HE TESTIFIED, HE HAD DIFFICULTY OBTAINING OR HOLDING
EMPLOYMENT.  ABOUT A YEAR LATER HE FELL IN WITH MCGAUTHA AND HIS
COMPANIONS, AND WHEN THEY FOUND THEMSELVES SHORT OF FUNDS, ONE OF THE
GROUP SUGGESTED THAT THEY "KNOCK OVER SOMEBODY."  THIS WAS THE FIRST
TIME, WILKINSON SAID, THAT HE HAD EVER HAD ANY THOUGHTS OF COMMITTING A
ROBBERY.  HE ADMITTED PARTICIPATING IN THE TWO ROBBERIES BUT SAID HE
HAD NOT KNOWN THAT THE STORES WERE TO BE HELD UP UNTIL MCGAUTHA DREW
HIS GUN.  HE TESTIFIED THAT IT HAD BEEN MCGAUTHA WHO STRUCK MRS.
SMETANA AND SHOT MR. SMETANA. 

WILKINSON CALLED SEVERAL WITNESSES IN HIS BEHALF.  AN UNDERCOVER
NARCOTICS AGENT TESTIFIED THAT HE HAD SEEN THE MURDER WEAPON IN
MCGAUTHA'S POSSESSION AND HAD SEEN MCGAUTHA DEMONSTRATING HIS QUICK
DRAW.  A MINISTER WITH WHOM WILKINSON HAD BOARDED TESTIFIED TO
WILKINSON'S CHURCH ATTENDANCE AND GOOD REPUTATION.  HE ALSO STATED THAT
BEFORE TRIAL WILKINSON HAD EXPRESSED HIS HORROR AT WHAT HAD HAPPENED
AND REQUESTED THE MINISTER'S PRAYERS ON HIS BEHALF.  A FORMER FELLOW
EMPLOYEE TESTIFIED THAT WILKINSON HAD A GOOD REPUTATION AND WAS HONEST
AND PEACEABLE. 

MCGAUTHA ALSO TESTIFIED IN HIS OWN BEHALF AT THE PENALTY HEARING. 
HE ADMITTED THAT THE MURDER WEAPON WAS HIS, BUT TESTIFIED THAT HE AND
WILKINSON HAD TRADED GUNS, AND THAT IT WAS WILKINSON WHO HAD STRUCK
MRS. SMETANA AND KILLED HER HUSBAND.  MCGAUTHA TESTIFIED THAT HE CAME
FROM A BROKEN HOME AND THAT HE HAD BEEN WOUNDED DURING WORLD WAR II.
HE RELATED HIS EMPLOYMENT RECORD, MEDICAL CONDITION, AND REMORSE.  HE
ADMITTED HIS CRIMINAL RECORD, SEE N. 2, SUPRA, BUT TESTIFIED THAT HE
HAD BEEN A MERE ACCOMPLICE IN TWO OF THOSE ROBBERIES AND THAT HIS PRIOR
CONVICTION FOR MURDER HAD RESULTED FROM A SLAYING IN SELF-DEFENSE. 
MCGAUTHA ALSO ADMITTED TO A 1964 GUILTY PLEA TO A CHARGE OF CARRYING A
CONCEALED WEAPON.  HE CALLED NO WITNESSES IN HIS BEHALF. 

THE JURY WAS INSTRUCTED IN THE FOLLOWING LANGUAGE: 

"IN THIS PART OF THE TRIAL THE LAW DOES NOT FORBID YOU FROM BEING
INFLUENCED BY PITY FOR THE DEFENDANTS AND YOU MAY BE GOVERNED BY MERE
SENTIMENT AND SYMPATHY FOR THE DEFENDANTS IN ARRIVING AT A PROPER
PENALTY IN THIS CASE; HOWEVER, THE LAW DOES NOT FORBID YOU FROM BEING
GOVERNED BY MERE CONJECTURE, PREJUDICE, PUBLIC OPINION OR PUBLIC
FEELING. 

     "THE DEFENDANTS IN THIS CASE HAVE BEEN FOUND GUILTY OF THE

  OFFENSE OF MURDER IN THE FIRST DEGREE, AND IT IS NOW YOUR DUTY TO

  DETERMINE WHICH OF THE PENALTIES PROVIDED BY LAW SHOULD BE

  IMPOSED ON EACH DEFENDANT FOR THAT OFFENSE.  NOW, IN ARRIVING AT

  THIS DETERMINATION YOU SHOULD CONSIDER ALL OF THE EVIDENCE

  RECEIVED HERE IN COURT PRESENTED BY THE PEOPLE AND DEFENDANTS

  THROUGHOUT THE TRIAL BEFORE THIS JURY.  YOU MAY ALSO CONSIDER ALL

  OF THE EVIDENCE OF THE CIRCUMSTANCES SURROUNDING THE CRIME, OF

  EACH DEFENDANT'S BACKGROUND AND HISTORY, AND OF THE FACTS IN

  AGGRAVATION OR MITIGATION OF THE PENALTY WHICH HAVE BEEN RECEIVED

  HERE IN COURT.  HOWEVER, IT IS NOT ESSENTIAL TO YOUR DECISION

  THAT YOU FIND MITIGATING CIRCUMSTANCES ON THE ONE HAND OR

  EVIDENCE IN AGGRAVATION OF THE OFFENSE ON THE OTHER HAD. 

        .          .          .        . 

     ". . . NOTWITHSTANDING FACTS, IF ANY, PROVED IN MITIGATION OR

  AGGRAVATION, IN DETERMINING WHICH PUNISHMENT SHALL BE INFLICTED,

  YOU ARE ENTIRELY FREE TO ACT ACCORDING TO YOUR OWN JUDGMENT,

  CONSCIENCE, AND ABSOLUTE DISCRETION.  THAT VERDICT MUST EXPRESS

  THE INDIVIDUAL OPINION OF EACH JUROR. 

     "NOW, BEYOND PRESCRIBING THE TWO ALTERNATIVE PENALTIES, THE
LAW

  ITSELF PROVIDES NO STANDARD FOR THE GUIDANCE OF THE JURY IN THE

  SELECTION OF THE PENALTY, BUT, RATHER, COMMITS THE WHOLE MATTER

  OF DETERMINING WHICH OF THE TWO PENALTIES SHALL BE FIXED TO THE

JUDGMENT, CONSCIENCE, AND ABSOLUTE DISCRETION OF THE JURY.  IN

  THE DETERMINATION OF THAT MATTER, IF THE JURY DOES AGREE, IT MUST

  BE UNANIMOUS AS TO WHICH OF THE TWO PENALTIES IS IMPOSED."  APP.

  221-223.  /4/ 

DELIBERATIONS BEGAN IN THE EARLY AFTERNOON OF AUGUST 24, 1967.  IN
RESPONSE TO JURY REQUESTS THE TESTIMONY OF MRS. SMETANA AND OF THREE
OTHER WITNESSES WAS REREAD.  LATE IN THE AFTERNOON OF AUGUST 25 THE
JURY RETURNED VERDICTS FIXING WILKINSON'S PUNISHMENT AT LIFE
IMPRISONMENT AND MCGAUTHA'S PUNISHMENT AT DEATH. 

THE TRIAL JUDGE ORDERED A PROBATION REPORT ON MCGAUTHA.  HAVING
RECEIVED IT, HE OVERRULED MCGAUTHA'S MOTIONS FOR A NEW TRIAL OR FOR A
MODIFICATION OF THE PENALTY VERDICT, AND PRONOUNCED THE DEATH
SENTENCE.  /5/  MCGAUTHA'S CONVICTION WAS UNANIMOUSLY AFFIRMED BY THE
CALIFORNIA SUPREME COURT.  70 CAL.2D 770, 451 P.2D 650 (1969).  HIS
CONTENTION THAT STANDARDLESS JURY SENTENCING IS UNCONSTITUTIONAL WAS
REJECTED ON THE AUTHORITY OF AN EARLIER CASE, IN RE ANDERSON, 69 CAL.2D
613, 447 P.2D 117 (1968), IN WHICH THAT COURT HAD DIVIDED NARROWLY ON
THE ISSUE. 

        C. CRAMPTON'S TRIAL 

PETITIONER CRAMPTON WAS INDICTED FOR THE MURDER OF HIS WIFE, WILMA
JEAN, PURPOSELY AND WITH PREMEDITATED MALICE.  HE PLEADED NOT GUILTY
AND NOT GUILTY BY REASON OF INSANITY.  /6/  IN ACCORDANCE WITH THE OHIO
PRACTICE WHICH HE CHALLENGES, HIS GUILT AND PUNISHMENT WERE DETERMINED
IN A SINGLE UNITARY PROCEEDING. 

AT THE TRIAL THE STATE'S CASE WAS AS FOLLOWS.  THE CRAMPTONS HAD
BEEN MARRIED ABOUT FOUR MONTHS AT THE TIME OF THE MURDER.  TWO MONTHS
BEFORE THE SLAYING CRAMPTON WAS ALLOWED TO LEAVE THE STATE MENTAL
HOSPITAL, WHERE HE WAS UNDERGOING OBSERVATION AND TREATMENT FOR
ALCOHOLISM AND DRUG ADDICTION, TO ATTEND THE FUNERAL OF HIS WIFE'S
FATHER.  ON THIS OCCASION HE STOLE A KNIFE FROM THE HOUSE OF HIS LATE
FATHER-IN-LAW AND RAN AWAY.  HE CALLED THE HOUSE SEVERAL TIMES AND
TALKED TO HIS WIFE, GREATLY UPSETTING HER.  WHEN SHE PLEADED WITH HIM
TO RETURN TO THE HOSPITAL AND STATED THAT SHE WOULD HAVE TO CALL THE
POLICE, HE THREATENED TO KILL HER IF SHE DID.  WILMA AND HER BROTHER
NEVERTHELESS DID NOTIFY THE AUTHORITIES, WHO PICKED CRAMPTON UP LATER
THE SAME EVENING.  THERE WAS TESTIMONY OF OTHER THREATS CRAMPTON HAD
MADE ON HIS WIFE'S LIFE, AND IT WAS REVEALED THAT ABOUT 10 DAYS BEFORE
THE MURDER MRS. CRAMPTON'S FEAR OF HER HUSBAND HAD CAUSED HER TO
REQUEST AND RECEIVE POLICE PROTECTION. 

THE STATE'S MAIN WITNESS TO THE FACTS SURROUNDING THE MURDER WAS ONE
WILLIAM COLLINS, A CONVICTED FELON WHO HAD FIRST MET CRAMPTON WHEN
THEY, ALONG WITH CRAMPTON'S BROTHER JACK, WERE IN THE STATE PRISON IN
MICHIGAN.  ON JANUARY 14, 1967, THREE DAYS BEFORE THE MURDER, COLLINS
AND CRAMPTON MET AT JACK CRAMPTON'S HOUSE IN PONTIAC, MICHIGAN.  DURING
THOSE THREE DAYS COLLINS AND CRAMPTON ROAMED THE UPPER MIDWEST,
COMMITTING A SERIES OF PETTY THEFTS AND OBTAINING AMPHETAMINES, TO
WHICH BOTH WERE ADDICTED, BY THEFT AND FORGED PRESCRIPTIONS. 

ABOUT NINE O'CLOCK ON THE EVENING OF JANUARY 16, CRAMPTON CALLED HIS
WIFE FROM ST. JOSEPH, MICHIGAN; AFTER THE CALL HE TOLD COLLINS THAT HE
HAD TO GET BACK TO TOLEDO, WHERE HIS WIFE WAS, AS FAST AS POSSIBLE. 
THEY ARRIVED IN THE EARLY MORNING HOURS OF JANUARY 17.  AFTER CRAMPTON
HAD STOPPED BY HIS WIFE'S HOME AND SENT COLLINS TO THE DOOR WITH A
PURPORTED MESSAGE FOR HER, THE TWO WENT TO THE HOME OF CRAMPTON'S
MOTHER-IN-LAW, WHICH CRAMPTON KNEW TO BE EMPTY, TO OBTAIN SOME GUNS. 
THEY BROKE IN AND STOLE A RIFLE, AMMUNITION, AND SOME HANDGUNS,
INCLUDING THE .45 AUTOMATIC WHICH WAS LATER IDENTIFIED AS THE MURDER
WEAPON.  CRAMPTON KEPT THIS GUN WITH HIM.  HE INDICATED TO COLLINS THAT
HE BELIEVED HIS WIFE WAS HAVING AN AFFAIR.  HE FIRED THE .45 IN THE
AIR, WITH A REMARK TO THE EFFECT THAT "A SLUG OF THAT TYPE WOULD DO
QUITE A BIT OF DAMAGE," AND SAID THAT IF HE FOUND HIS WIFE WITH THE MAN
HE SUSPECTED HE WOULD KILL THEM BOTH. 

THAT EVENING CRAMPTON CALLED HIS WIFE'S HOME AND LEARNED THAT SHE
WAS PRESENT.  HE QUICKLY DROVE OUT TO THE HOUSE, AND TOLD COLLINS,
"LEAVE ME OFF RIGHT HERE IN FRONT OF THE HOUSE AND YOU TAKE THE CAR AND
GO BACK TO THE PARKING LOT AND IF I'M NOT THERE BY SIX O'CLOCK IN THE
MORNING YOU'RE ON YOUR OWN." 

ABOUT 11:20 THAT EVENING CRAMPTON WAS ARRESTED FOR DRIVING A STOLEN
CAR.  THE MURDER WEAPON WAS FOUND BETWEEN THE SEATS OF THE CAR. 

MRS. CRAMPTON'S BODY WAS FOUND THE NEXT MORNING.  SHE HAD BEEN SHOT
IN THE FACE AT CLOSE RANGE WHILE SHE WAS USING THE TOILET.  A .45
CALIBER SHELL CASING WAS NEAR THE BODY.  A JACKET WHICH CRAMPTON HAD
STOLEN A FEW DAYS EARLIER WAS FOUND IN THE LIVING ROOM.  THE CORONER
WHO EXAMINED THE BODY AT 11:30 P.M. ON JANUARY 18, TESTIFIED THAT IN
HIS OPINION DEATH HAD OCCURRED 24 HOURS EARLIER, PLUS OR MINUS FOUR
HOURS. 

THE DEFENSE CALLED CRAMPTON'S MOTHER AS A WITNESS.  SHE TESTIFIED
ABOUT CRAMPTON'S BACKGROUND, INCLUDING A SERIOUS CONCUSSION RECEIVED AT
AGE NINE, HIS GOOD GRADES IN JUNIOR HIGH SCHOOL, HIS STEPFATHER'S
JEALOUSY OF HIM, HIS LEAVING HOME AT AGE 14 TO LIVE WITH VARIOUS
RELATIVES, HIS ENLISTMENT IN THE NAVY AT AGE 17, HIS MARRIAGE TO A GIRL
NAMED SANDRA, THE BIRTH OF A SON, A DIVORCE, THEN A REMARRIAGE TO
SANDRA AND ANOTHER DIVORCE SHORTLY AFTER, AND FINALLY HIS MARRIAGE TO
WILMA.  MRS. CRAMPTON ALSO TESTIFIED TO CRAMPTON'S DRUG ADDICTION, TO
HIS BRUSHES WITH THE LAW AS A YOUTH AND AS AN ADULT, AND TO HIS
UNDESIRABLE DISCHARGE FROM THE NAVY. 

CRAMPTON'S ATTORNEY ALSO INTRODUCED INTO EVIDENCE A SERIES OF
HOSPITAL REPORTS WHICH CONTAINED FURTHER INFORMATION ON CRAMPTON'S
BACKGROUND, INCLUDING HIS CRIMINAL RECORD, WHICH WAS SUBSTANTIAL, HIS
COURT-MARTIAL CONVICTION AND UNDESIRABLE DISCHARGE FROM THE NAVY, AND
THE ABSENCE OF ANY SIGNIFICANT EMPLOYMENT RECORD.  THEY ALSO CONTAINED
HIS CLAIM THAT THE SHOOTING WAS ACCIDENTAL; THAT HE HAD BEEN GATHERING
UP GUNS AROUND THE HOUSE AND HAD JUST REMOVED THE CLIP FROM AN
AUTOMATIC WHEN HIS WIFE ASKED TO SEE IT; THAT AS HE HANDED IT TO HER IT
WENT OFF ACCIDENTALLY AND KILLED HER.  ALL THE REPORTS CONCLUDED THAT
CRAMPTON WAS SANE IN BOTH THE LEGAL AND THE MEDICAL SENSES.  HE WAS
DIAGNOSED AS HAVING A SOCIO-PATHIC PERSONALITY DISORDER, ALONG WITH
ALCOHOL AND DRUG ADDICTION.  CRAMPTON HIMSELF DID NOT TESTIFY.     THE
JURY WAS INSTRUCTED THAT: 

     "IF YOU FIND THE DEFENDANT GUILTY OF MURDER IN THE FIRST

  DEGREE, THE PUNISHMENT IS DEATH, UNLESS YOU RECOMMEND MERCY, IN

  WHICH EVENT THE PUNISHMENT IS IMPRISONMENT IN THE PENITENTIARY

  DURING LIFE."  APP. 70. 

THE JURY WAS GIVEN NO OTHER INSTRUCTIONS SPECIFICALLY ADDRESSED TO THE
DECISION WHETHER TO RECOMMEND MERCY, BUT WAS TOLD IN CONNECTION WITH
ITS VERDICT GENERALLY: 

     "YOU MUST NOT BE INFLUENCED BY ANY CONSIDERATION OF SYMPATHY
OR

  PREJUDICE.  IT IS YOUR DUTY TO CAREFULLY WEIGH THE EVIDENCE, TO

  DECIDE ALL DISPUTED QUESTIONS OF FACT, TO APPLY THE INSTRUCTIONS

  OF THE COURT TO YOUR FINDINGS AND TO RENDER YOUR VERDICT

  ACCORDINGLY.  IN FULFILLING YOUR DUTY, YOUR EFFORTS MUST BE TO

  ARRIVE AT A JUST VERDICT. 

     "CONSIDER ALL THE EVIDENCE AND MAKE YOUR FINDING WITH

  INTELLIGENCE AND IMPARTIALITY, AND WITHOUT BIAS, SYMPATHY, OR

  PREJUDICE, SO THAT THE STATE OF OHIO AND THE DEFENDANT WILL FEEL

  THAT THEIR CASE WAS FAIRLY AND IMPARTIALLY TRIED."  APP. 71-72. 

THE JURY DELIBERATED FOR OVER FOUR HOURS AND RETURNED A VERDICT OF
GUILTY, WITH NO RECOMMENDATION FOR MERCY. 

SENTENCE WAS IMPOSED ABOUT TWO WEEKS LATER.  AS OHIO LAW REQUIRES,
OHIO REV. CODE ANN. SEC. 2947.05 (1954), CRAMPTON WAS INFORMED OF THE
VERDICT AND ASKED WHETHER HE HAD ANYTHING TO SAY AS TO WHY JUDGMENT
SHOULD NOT BE PRONOUNCED AGAINST HIM.  HE REPLIED: 

     "PLEASE THE COURT, I DON'T BELIEVE I RECEIVED A FAIR AND

  IMPARTIAL TRIAL BECAUSE THE JURY WAS PREJUDICED BY MY PAST RECORD

  AND THE FACT I HAD BEEN A DRUG ADDICT, AND I JUST BELIEVE I

  DIDN'T RECEIVE A FAIR AND IMPARTIAL TRIAL.  THAT'S ALL I HAVE TO

  SAr." 

THIS STATEMENT WAS FOUND INSUFFICIENT TO JUSTIFY NOT PRONOUNCING
SENTENCE UPON HIM, AND THE COURT IMPOSED THE DEATH SENTENCE.  /7/
CRAMPTON'S APPEALS THROUGH THE OHIO COURTS WERE UNAVAILING.  18 OHIO
ST.2D 182, 248 N.E.2D 614 (1969). 

II 

BEFORE PROCEEDING TO A CONSIDERATION OF THE ISSUES BEFORE US, IT IS
IMPORTANT TO RECOGNIZE AND UNDERSCORE THE NATURE OF OUR
RESPONSIBILITIES IN JUDGING THEM.  OUR FUNCTION IS NOT TO IMPOSE ON THE
STATES, EX CATHEDRA, WHAT MIGHT SEEM TO US A BETTER SYSTEM FOR DEALING
WITH CAPITAL CASES.  RATHER, IT IS TO DECIDE WHETHER THE FEDERAL
CONSTITUTION PROSCRIBES THE PRESENT PROCEDURES OF THESE TWO STATES IN
SUCH CASES.  IN ASSESSING THE VALIDITY OF THE CONCLUSIONS REACHED IN
THIS OPINION, THAT BASIC FACTOR SHOULD BE KEPT CONSTANTLY IN MIND. 

        III 

WE CONSIDER FIRST MCGAUTHA'S AND CRAMPTON'S COMMON CLAIM:  THAT THE
ABSENCE OF STANDARDS TO GUIDE THE JURY'S DISCRETION ON THE PUNISHMENT
ISSUE IS CONSTITUTIONALLY INTOLERABLE.  TO FIT THEIR ARGUMENTS WITHIN A
CONSTITUTIONAL FRAME OF REFERENCE PETITIONERS CONTEND THAT TO LEAVE THE
JURY COMPLETELY AT LARGE TO IMPOSE OR WITHHOLD THE DEATH PENALTY AS IT
SEES FIT IS FUNDAMENTALLY LAWLESS AND THEREFORE VIOLATED THE BASIC
COMMAND OF THE FOURTEENTH AMENDMENT THAT NO STATE SHALL DEPRIVE A
PERSON OF HIS LIFE WITHOUT DUE PROCESS OF LAW.  DESPITE THE UNDENIABLE
SURFACE APPEAL OF THE PROPOSITION, WE CONCLUDE THAT THE COURTS BELOW
CORRECTLY REJECTED IT.  /8/

        A 

IN ORDER TO SEE PETITIONERS' CLAIM IN PERSPECTIVE, IT IS USEFUL TO
CALL TO MIND THE SALIENT FEATURES OF THE HISTORY OF CAPITAL PUNISHMENT
FOR HOMICIDES UNDER THE COMMON LAW IN ENGLAND, AND SUBSEQUENT STATUTORY
DEVELOPMENTS IN THIS COUNTRY.  THIS HISTORY REVEALS CONTINUAL EFFORTS,
UNIFORMLY UNSUCCESSFUL, TO IDENTIFY BEFORE THE FACT THOSE HOMICIDES FOR
WHICH THE SLAYER SHOULD DIE.  THUS, THE LAWS OF ALFRED, ECHOING EXODUS
21:  12-13, PROVIDED:  "LET THE MAN WHO SLAYETH ANOTHER WILFULLY PERISH
BY DEATH.  LET HIM WHO SLAYETH ANOTHER OF NECESSITY OR UNWILLINGLY, OR
UNWILFULLY, AS GOD MAY HAVE SENT HIM INTO HIS HANDS, AND FOR WHOM HE
HAS NOT LAIN IN WAIT BE WORTHY OF HIS LIFE AND OF LAWFUL BOT IF HE SEEK
AN ASYLUM."  QUOTED IN 3 J.STEPHEN, HISTORY OF THE CRIMINAL LAW OF
ENGLAND 24 (1883).  IN THE 13TH CENTURY, BRACTON SET IT DOWN THAT A MAN
WAS RESPONSIBLE FOR ALL HOMICIDES EXCEPT THOSE WHICH HAPPENED BY PURE
ACCIDENT OR INEVITABLE NECESSITY, ALTHOUGH HE DID NOT EXPLAIN THE
CONSEQUENCES OF SUCH RESPONSIBILITY.  ID., AT 35.  THE STATUTE OF
GLOUCESTER, 6 EDW.  1, C. 9 (1278), PROVIDED THAT IN CASES OF SELF
DEFENSE OR MISADVENTURE THE JURY SHOULD NEITHER CONVICT NOR ACQUIT, BUT
SHOULD FIND THE FACT SPECIALLY, SO THAT THE KING COULD DECIDE WHETHER
TO PARDON THE ACCUSED.  IT APPEARS THAT IN TIME SUCH PARDONS-- WHICH
MAY NOT HAVE PREVENTED FORFEITURE OF GOODS-- CAME TO ISSUE AS OF
COURSE.  3 STEPHEN, SUPRA, AT 36-42. 

DURING ALL THIS TIME THERE WAS NO CLEAR DISTINCTION IN TERMINOLOGY
OR CONSEQUENCES AMONG THE VARIOUS KINDS OF CRIMINAL HOMICIDE.  ALL WERE
PRIMA FACIE CAPITAL, BUT ALL WERE SUBJECT TO THE BENEFIT OF CLERGY,
WHICH AFTER 1350 CAME TO BE AVAILABLE TO ALMOST ANY MAN WHO COULD
READ.  ALTHOUGH ORIGINALLY THOSE ENTITLED TO BENEFIT OF CLERGY WERE
SIMPLY DELIVERED TO THE BISHOP FOR ECCLESIASTICAL PROCEEDINGS, WITH THE
POSSIBILITY OF DEGRADATION FROM ORDERS, INCARCERATION, AND CORPORAL
PUNISHMENT FOR THOSE FOUND GUILTY, DURING THE 15TH AND 16TH CENTURIES
THE MAXIMUM PENALTY FOR CLERGYABLE OFFENSES BECAME BRANDING ON THE
THUMB, IMPRISONMENT FOR NOT MORE THAN ONE YEAR, AND FORFEITURE OF
GOODS.  1 STEPHEN, SUPRA, AT 459-464.  BY THE STATUTES OF 23 HEN.  8,
C. 1, SECS. 3, 4 (1531), AND 1 EDW.  6, C. 12, SEC. 10 (1547), BENEFIT
OF CLERGY WAS TAKEN AWAY IN ALL CASES OF "MURDER OF MALICE PREPENSED." 
1 STEPHEN, SUPRA, AT 464-465; 3 ID., AT 44.  DURING THE NEXT CENTURY
AND A HALF, HOWEVER, "MALICE PREPENSE" OR "MALICE AFORETHOUGHT" CAME TO
BE DIVORCED FROM ACTUAL ILL WILL AND INFERRED WITHOUT MORE FROM THE ACT
OF KILLING.  CORRESPONDINGLY, MANSLAUGHTER, WHICH WAS INITIALLY
RESTRICTED TO CASES OF "CHANCE MEDLEY," CAME TO INCLUDE HOMICIDES WHERE
THE EXISTENCE OF ADEQUATE PROVOCATION REBUTTED THE INFERENCE OF
MALICE.  3 ID., AT 46-73. 

THE GROWTH OF THE LAW CONTINUED IN THIS COUNTRY, WHERE THERE WAS
REBELLION AGAINST THE COMMON-LAW RULE IMPOSING A MANDATORY DEATH
SENTENCE ON ALL CONVICTED MURDERERS.  THUS, IN 1794, PENNSYLVANIA
ATTEMPTED TO REDUCE THE RIGORS OF THE LAW BY ABOLISHING CAPITAL
PUNISHMENT EXCEPT FOR "MURDER OF THE FIRST DEGREE," DEFINED TO INCLUDE
ALL "WILLFUL, DELIBERATE AND PREMEDITATED" KILLINGS, FOR WHICH THE
DEATH PENALTY REMAINED MANDATORY.  PA. LAWS 1794, C. 1777.  THIS REFORM
WAS SOON COPIED BY VIRGINIA AND THEREAFTER BY MANY OTHER STATES. 

THIS NEW LEGISLATIVE CRITERION FOR ISOLATING CRIMES APPROPRIATELY
PUNISHABLE BY DEATH SOON PROVED AS UNSUCCESSFUL AS THE CONCEPT OF
"MALICE AFORETHOUGHT."  WITHIN A YEAR THE DISTINCTION BETWEEN THE
DEGREES OF MURDER WAS PRACTICALLY OBLITERATED IN PENNSYLVANIA.  SEE
KEEDY, HISTORY OF THE PENNSYLVANIA STATUTE CREATING DEGREES OF MURDER,
97 U.PA.L.REV.  759, 773-777 (1949).  OTHER STATES HAD SIMILAR
EXPERIENCES.  WECHSLER & MICHAEL, A RATIONALE OF THE LAW OF HOMICIDE:
I, 37 COL.L.REV.  701, 707-709 (1937).  THE RESULT WAS CHARACTERIZED IN
THIS WAY BY CHIEF JUDGE CARDOZO, AS HE THEN WAS: 

"WHAT WE HAVE IS MERELY A PRIVILEGE OFFERED TO THE JURY TO FIND THE
LESSER DEGREE WHEN THE SUDDENNESS OF THE INTENT, THE VEHEMENCE OF THE
PASSION, SEEMS TO CALL IRRESISTIBLY FOR THE EXERCISE OF MERCY.  I HAVE
NO OBJECTION TO GIVING THEM THIS DISPENSING POWER, BUT IT SHOULD BE
GIVEN TO THEM DIRECTLY AND NOT IN A MYSTIFYING CLOUD OF WORDS."  WHAT
MEDICINE CAN DO FOR LAW, IN LAW AND LITERATURE 70, 100 (1931).  /9/ AT
THE SAME TIME, JURORS ON OCCASION TOOK THE LAW INTO THEIR OWN HANDS IN
CASES WHICH WERE "WILLFUL, DELIBERATE, AND PREMEDITATED" IN ANY VIEW OF
THAT PHRASE, BUT WHICH NEVERTHELESS WERE CLEARLY INAPPROPRIATE FOR THE
DEATH PENALTY.  IN SUCH CASES THEY SIMPLY REFUSED TO CONVICT OF THE
CAPITAL OFFENSE.  SEE REPORT OF THE ROYAL COMMISSION ON CAPITAL
PUNISHMENT, 1949-1953, CMD.  8932, PARAS. 27-29 (1953); ANDRES V.
UNITED STATES, 333 U.S. 740, 753 (1948) (FRANKFURTER, J., CONCURRING);
CF. H. KALVEN & H. ZEISEL, THE AMERICAN JURY 306-312 (1966). 

IN ORDER TO MEET THE PROBLEM OF JURY NULLIFICATION, LEGISLATURES DID
NOT TRY, AS BEFORE, TO REFINE FURTHER THE DEFINITION OF CAPITAL
HOMICIDES.  INSTEAD THEY ADOPTED THE METHOD OF FORTHRIGHTLY GRANTING
JURIES THE DISCRETION WHICH THEY HAD BEEN EXERCISING IN FACT.  SEE
KNOWLTON, PROBLEMS OF JURY DISCRETION IN CAPITAL CASES, 101
U.PA.L.REV.  1099, 1102 AND N. 18 (1953); NOTE, THE TWO-TRIAL SYSTEM IN
CAPITAL CASES, 39 N.Y.U.L.REV.  50, 52 (1964).  TENNESSEE WAS THE FIRST
STATE TO GIVE JURIES SENTENCING DISCRETION IN CAPITAL CASES, /10/
TENN. LAWS 1837-1838, C. 29, BUT OTHER STATES FOLLOWED SUIT, AS DID THE
FEDERAL GOVERNMENT IN 1897.  /11/  ACT OF JAN. 15, 1897, C. 29, SEC. 1,
29 STAT. 487.  SHORTLY THEREAFTER, IN WINSTON V. UNITED STATES, 172
U.S. 303 (1899), THIS COURT DEALT WITH THE FEDERAL STATUTE FOR THE
FIRST TIME.  /12/  THE COURT REVERSED A MURDER CONVICTION IN WHICH THE
TRIAL JUDGE INSTRUCTED THE JURY THAT IT SHOULD NOT RETURN A
RECOMMENDATION OF MERCY UNLESS IT FOUND THE EXISTENCE OF MITIGATING
CIRCUMSTANCES.  THE COURT FOUND THIS INSTRUCTION TO INTERFERE WITH THE
SCHEME OF THE ACT TO COMMIT THE WHOLE QUESTION OF CAPITAL PUNISHMENT
"TO THE JUDGMENT AND THE CONSCIENCES OF THE JURY."  ID., AT 313. 

"HOW FAR CONSIDERATIONS OF AGE, SEX, IGNORANCE, ILLNESS OR
INTOXICATION, OF HUMAN PASSION OR WEAKNESS, OF SYMPATHY OR CLEMENCY, OR
THE IRREVOCABLENESS OF AN EXECUTED SENTENCE OF DEATH, OR AN
APPREHENSION THAT EXPLANATORY FACTS MAY EXIST WHICH HAVE NOT BEEN
BROUGHT TO LIGHT, OR ANY OTHER CONSIDERATION WHATEVER, SHOULD BE
ALLOWED WEIGHT IN DECIDING THE QUESTION WHETHER THE ACCUSED SHOULD OR
SHOULD NOT BE CAPITALLY PUNISHED, IS COMMITTED BY THE ACT OF CONGRESS
TO THE SOUND DISCRETION OF THE JURY, AND OF THE JURY ALONE."  IBID. 

THIS COURT SUBSEQUENTLY HAD OCCASION TO PASS ON THE CORRECTNESS OF
INSTRUCTIONS TO THE JURY WITH RESPECT TO RECOMMENDATIONS OF MERCY IN
ANDRES V. UNITED STATES, 333 U.S. 740 (1948).  THE COURT APPROVED, AS
CONSISTENT WITH THE GOVERNING STATUTE, AN INSTRUCTION THAT: 

"THIS POWER (TO RECOMMEND MERCY) IS CONFERRED SOLELY UPON YOU AND IN
THIS CONNECTION THE COURT CAN NOT EXTEND OR PRESCRIBE TO YOU ANY
DEFINITE RULE DEFINING THE EXERCISE OF THIS POWER, BUT COMMITS THE
ENTIRE MATTER OF ITS EXERCISE TO YOUR JUDGMENT."  ID., AT 743 N. 4. 
THE CASE WAS REVERSED, HOWEVER, ON THE GROUND THAT OTHER INSTRUCTIONS
ON THE POWER TO RECOMMEND MERCY MIGHT HAVE BEEN INTERPRETED BY THE JURY
AS REQUIRING THEM TO RETURN AN UNQUALIFIED VERDICT OF GUILTY UNLESS
THEY UNANIMOUSLY AGREED THAT MERCY SHOULD BE EXTENDED.  THE COURT
DETERMINED THAT THE PROPER CONSTRUCTION WAS TO REQUIRE A UNANIMOUS
DECISION TO WITHHOLD MERCY AS WELL, ON THE GROUND AMONG OTHERS THAT THE
LATTER CONSTRUCTION WAS "MORE CONSONANT WITH THE GENERAL HUMANITARIAN
PURPOSE OF THE STATUTE."  ID., AT 749.  THE ONLY OTHER SIGNIFICANT
DISCUSSION OF STANDARDLESS JURY SENTENCING IN CAPITAL CASES IN OUR
DECISIONS IS FOUND IN WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968).  IN
REACHING ITS CONCLUSION THAT PERSONS WITH CONSCIENTIOUS SCRUPLES
AGAINST THE DEATH PENALTY COULD NOT BE AUTOMATICALLY EXCLUDED FROM
SENTENCING JURIES IN CAPITAL CASES, THE COURT RELIED HEAVILY ON THE
FACT THAT SUCH JURIES "DO LITTLE MORE-- AND MUST DO NOTHING LESS-- THAN
EXPRESS THE CONSCIENCE OF THE COMMUNITY ON THE ULTIMATE QUESTION OF
LIFE OR DEATH."  ID., AT 519 (FOOTNOTE OMITTED).  THE COURT NOTED THAT
"ONE OF THE MOST IMPORTANT FUNCTIONS ANY JURY CAN PERFORM IN MAKING
SUCH A SELECTION IS TO MAINTAIN A LINK BETWEEN CONTEMPORARY COMMUNITY
VALUES AND THE PENAL SYSTEM-- A LINK WITHOUT WHICH THE DETERMINATION OF
PUNISHMENT COULD HARDLY REFLECT 'THE EVOLVING STANDARDS OF DECENCY THAT
MARK THE PROGRESS OF A MATURING SOCIETY.'"  ID., AT 519 N. 15.  THE
INNER QUOTATION IS FROM THE OPINION OF MR. CHIEF JUSTICE WARREN FOR
FOUR MEMBERS OF THE COURT IN TROP V. DULLES, 356 U.S. 86, 101 (1958). 

IN RECENT YEARS ACADEMIC AND PROFESSIONAL SOURCES HAVE SUGGESTED
THAT JURY SENTENCING DISCRETION SHOULD BE CONTROLLED BY STANDARDS OF
SOME SORT.  THE AMERICAN LAW INSTITUTE FIRST PUBLISHED SUCH A
RECOMMENDATION IN 1959.  /13/  SEVERAL STATES HAVE ENACTED NEW CRIMINAL
CODES IN THE INTERVENING 12 YEARS, SOME ADOPTING FEATURES OF THE MODEL
PENAL CODE.  /14/  OTHER STATES HAVE MODIFIED THEIR LAWS WITH RESPECT
TO MURDER AND THE DEATH PENALTY IN OTHER WAYS.  /15/  NONE OF THESE
STATES HAVE FOLLOWED THE MODEL PENAL CODE AND ADOPTED STATUTORY
CRITERIA FOR IMPOSITION OF THE DEATH PENALTY.  IN RECENT YEARS,
CHALLENGES TO STANDARDLESS JURY SENTENCING HAVE BEEN PRESENTED TO MANY
STATE AND FEDERAL APPELLATE COURTS.  NO COURT HAS HELD THE CHALLENGE
GOOD.  SEE N. 8, SUPRA.  AS PETITIONERS RECOGNIZE, IT REQUIRES A STRONG
SHOWING TO UPSET THIS SETTLED PRACTICE OF THE NATION ON CONSTITUTIONAL
GROUNDS.  SEE WALZ V. TAX COMMISSION, 397 U.S. 664, 678 (1970); JACKMAN
V. ROSENBAUM CO., 260 U.S. 22, 31 (1922); CF. PALKO V. CONNECTICUT, 302
U.S. 319, 325 (1937). 

B 

PETITIONERS SEEK TO AVOID THE IMPACT OF THIS HISTORY BY THE
OBSERVATION THAT JURY SENTENCING DISCRETION IN CAPITAL CASES WAS
INTRODUCED AS A MECHANISM FOR DISPENSING MERCY-- A MEANS FOR DEALING
WITH THE RARE CASE IN WHICH THE DEATH PENALTY WAS THOUGHT TO BE
UNJUSTIFIED.  NOW, THEY ASSERT, THE DEATH PENALTY IS IMPOSED ON FAR
FEWER THAN HALF THE DEFENDANTS FOUND GUILTY OF CAPITAL CRIMES.  THE
STATE AND FEDERAL LEGISLATURES WHICH PROVIDE FOR JURY DISCRETION IN
CAPITAL SENTENCING HAVE, IT IS SAID, IMPLICITLY DETERMINED THAT SOME--
INDEED, THE GREATER PORTION-- OF THOSE GUILTY OF CAPITAL CRIMES SHOULD
BE PERMITTED TO LIVE.  BUT HAVING MADE THAT DETERMINATION, PETITIONERS
ARGUE, THEY HAVE STOPPED SHORT-- THE LEGISLATURES HAVE NOT ONLY FAILED
TO PROVIDE A RATIONAL BASIS FOR DISTINGUISHING THE ONE GROUP FROM THE
OTHER, CF. SKINNER V. OKLAHOMA, 316 U.S. 535 (1942), BUT THEY HAVE
FAILED EVEN TO SUGGEST ANY BASIS AT ALL.  WHATEVER THE MERITS OF
PROVIDING SUCH A MECHANISM TO TAKE ACCOUNT OF THE UNFORESEEABLE CASE
CALLING FOR MERCY, AS WAS THE ORIGINAL PURPOSE, PETITIONERS CONTEND THE
MECHANISM IS CONSTITUTIONALLY INTOLERABLE AS A MEANS OF SELECTING THE
EXTRAORDINARY CASES CALLING FOR THE DEATH PENALTY, WHICH IS ITS PRESENT
DAY FUNCTION. 

IN OUR VIEW, SUCH FORCE AS THIS ARGUMENT HAS DERIVES LARGELY FROM
ITS GENERALITY.  THOSE WHO HAVE COME TO GRIPS WITH THE HARD TASK OF
ACTUALLY ATTEMPTING TO DRAFT MEANS OF CHANNELING CAPITAL SENTENCING
DISCRETION HAVE CONFIRMED THE LESSON TAUGHT BY THE HISTORY RECOUNTED
ABOVE.  TO IDENTIFY BEFORE THE FACT THOSE CHARACTERISTICS OF CRIMINAL
HOMICIDES AND THEIR PERPETRATORS WHICH CALL FOR THE DEATH PENALTY, AND
TO EXPRESS THESE CHARACTERISTICS IN LANGUAGE WHICH CAN BE FAIRLY UNDER
STOOD AND APPLIED BY THE SENTENCING AUTHORITY, APPEAR TO BE TASKS WHICH
ARE BEYOND PRESENT HUMAN ABILITY. 

THUS THE BRITISH HOME OFFICE, WHICH BEFORE THE RECENT ABOLITION OF
CAPITAL PUNISHMENT IN THAT COUNTRY HAD THE RESPONSIBILITY FOR SELECTING
THE CASES FROM ENGLAND AND WALES WHICH SHOULD RECEIVE THE BENEFIT OF
THE ROYAL PREROGATIVE OF MERCY, OBSERVED: 

"THE DIFFICULTY OF DEFINING BY ANY STATUTORY PROVISION THE TYPES OF
MURDER WHICH OUGHT OR OUGHT NOT TO BE PUNISHED BY DEATH MAY BE
ILLUSTRATED BY REFERENCE TO THE MANY DIVERSE CONSIDERATIONS TO WHICH
THE HOME SECRETARY HAS REGARD IN DECIDING WHETHER TO RECOMMEND
CLEMENCY.  NO SIMPLE FORMULA CAN TAKE ACCOUNT OF THE INNUMERABLE
DEGREES OF CULPABILITY, AND NO FORMULA WHICH FAILS TO DO SO CAN CLAIM
TO BE JUST OR SATISFY PUBLIC OPINION."  1-2 ROYAL COMMISSION ON CAPITAL
PUNISHMENT, MINUTES OF EVIDENCE 13 (1949).  THE ROYAL COMMISSION
ACCEPTED THIS VIEW, AND ALTHOUGH IT RECOMMENDED A CHANGE IN BRITISH
PRACTICE TO PROVIDE FOR DISCRETIONARY POWER IN THE JURY TO FIND
"EXTENUATING CIRCUMSTANCES," THAT TERM WAS TO BE LEFT UNDEFINED; "(THE
DECISION OF THE JURY WOULD BE WITHIN THEIR UNFETTERED DISCRETION AND IN
NO SENSE GOVERNED BY THE PRINCIPLES OF LAW."  REPORT OF THE ROYAL
COMMISSION ON CAPITAL PUNISHMENT, 1949-1953, CMD.  8932, PARA. 553(B). 
THE COMMISSION WENT ON TO SAY, IN SUBSTANTIAL CONFIRMATION OF THE VIEWS
OF THE HOME OFFICE: 

"NO FORMULA IS POSSIBLE THAT WOULD PROVIDE A REASONABLE CRITERION
FOR THE INFINITE VARIETY OF CIRCUMSTANCES THAT MAY AFFECT THE GRAVITY
OF THE CRIME OF MURDER.  DISCRETIONARY JUDGMENT ON THE FACTS OF EACH
CASE IS THE ONLY WAY IN WHICH THEY CAN BE EQUITABLY DISTINGUISHED. 
THIS CONCLUSION IS BORNE OUT BY AMERICAN EXPERIENCE:  THERE THE
EXPERIMENT OF DEGREES OF MURDER, INTRODUCED LONG AGO, HAS HAD TO BE
SUPPLEMENTED BY GIVING TO THE COURTS A DISCRETION THAT IN EFFECT
SUPERSEDES IT."  ID., AT PARA. 595. 

THE DRAFTSMEN OF THE MODEL PENAL CODE EXPRESSLY AGREED WITH THE
CONCLUSION OF THE ROYAL COMMISSION THAT "THE FACTORS WHICH DETERMINE
WHETHER THE SENTENCE OF DEATH IS THE APPROPRIATE PENALTY IN PARTICULAR
CASES ARE TOO COMPLEX TO BE COMPRESSED WITHIN THE LIMITS OF A SIMPLE
FORMULA . . . ."  REPORT PARA. 498, QUOTED IN MODEL PENAL CODE, SEC.
201.6, COMMENT 3, P. 71 (TENT.  DRAFT NO. 9, 1959).  THE DRAFTSMEN DID
THINK, HOWEVER, "THAT IT IS WITHIN THE REALM OF POSSIBILITY TO POINT TO
THE MAIN CIRCUMSTANCES OF AGGRAVATION AND OF MITIGATION THAT SHOULD BE
WEIGHED AND WEIGHED AGAINST EACH OTHER WHEN THEY ARE PRESENTED IN A
CONCRETE CASE."  IBID.  THE CIRCUMSTANCES THE DRAFTSMEN SELECTED, SET
OUT IN THE APPENDIX TO THIS OPINION, WERE NOT INTENDED TO BE
EXCLUSIVE.  THE CODE PROVIDES SIMPLY THAT THE SENTENCING AUTHORITY
SHOULD "TAKE INTO ACCOUNT THE AGGRAVATING AND MITIGATING CIRCUMSTANCES
ENUMERATED . . . AND ANY OTHER FACTS THAT IT DEEMS RELEVANT," AND THAT
THE COURT SHOULD SO INSTRUCT WHEN THE ISSUE WAS SUBMITTED TO THE JURY. 
ID., AT SEC. 210.6(2) (PROPOSED OFFICIAL DRAFT, 1962).  /16/  THE FINAL
REPORT OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS
(1971) RECOMMENDED ENTIRE ABOLITION OF THE DEATH PENALTY IN FEDERAL
CASES.  IN A PROVISIONAL CHAPTER, PREPARED FOR THE CONTINGENCY THAT
CONGRESS MIGHT DECIDE TO RETAIN THE DEATH PENALTY, THE REPORT CONTAINS
A SET OF CRITERIA VIRTUALLY IDENTICAL WITH THE AGGRAVATING AND
MITIGATING CIRCUMSTANCES LISTED BY THE MODEL PENAL CODE.  WITH RESPECT
TO THE USE TO BE MADE OF THE CRITERIA, THE REPORT PROVIDES THAT:  "(IN
DECIDING WHETHER A SENTENCE OF DEATH SHOULD BE IMPOSED, THE COURT AND
THE JURY, IF ANY, MAY CONSIDER THE MITIGATING AND AGGRAVATING
CIRCUMSTANCES SET FORTH IN THE SUBSECTIONS BELOW."  ID., AT PROVISIONAL
SEC. 3604(1). 

IT IS APPARENT THAT SUCH CRITERIA DO NOT PURPORT TO PROVIDE MORE
THAN THE MOST MINIMAL CONTROL OVER THE SENTENCING AUTHORITY'S EXERCISE
OF DISCRETION.  THEY DO NOT PURPORT TO GIVE AN EXHAUSTIVE LIST OF THE
RELEVANT CONSIDERATIONS OR THE WAY IN WHICH THEY MAY BE AFFECTED BY THE
PRESENCE OR ABSENCE OF OTHER CIRCUMSTANCES.  THEY DO NOT UNDERTAKE TO
EXCLUDE CONSTITUTIONALLY IMPERMISSIBLE CONSIDERATIONS.  /17/  AND, OF
COURSE, THEY PROVIDE NO PROTECTION AGAINST THE JURY DETERMINED TO
DECIDE ON WHIMSY OR CAPRICE.  IN SHORT, THEY DO NO MORE THAN SUGGEST
SOME SUBJECTS FOR THE JURY TO CONSIDER DURING ITS DELIBERATIONS, AND
THEY BEAR WITNESS TO THE INTRACTABLE NATURE OF THE PROBLEM OF
"STANDARDS"  WHICH THE HISTORY OF CAPITAL PUNISHMENT HAS FROM THE
BEGINNING REFLECTED.  THUS, THEY INDEED CAUTION AGAINST THIS COURT'S
UNDERTAKING TO ESTABLISH SUCH STANDARDS ITSELF, OR TO PRONOUNCE AT
LARGE THAT STANDARDS IN THIS REALM ARE CONSTITUTIONALLY REQUIRED. 

IN LIGHT OF HISTORY, EXPERIENCE, AND THE PRESENT LIMITATIONS OF
HUMAN KNOWLEDGE, WE FIND IT QUITE IMPOSSIBLE TO SAY THAT COMMITTING TO
THE UNTRAMMELED DISCRETION OF THE JURY THE POWER TO PRONOUNCE LIFE OR
DEATH IN CAPITAL CASES IS OFFENSIVE TO ANYTHING IN THE CONSTITUTION. 
/18/  THE STATES ARE ENTITLED TO ASSUME THAT JURORS CONFRONTED WITH THE
TRULY AWESOME RESPONSIBILITY OF DECREEING DEATH FOR A FELLOW HUMAN WILL
ACT WITH DUE REGARD FOR THE CONSEQUENCES OF THEIR DECISION AND WILL
CONSIDER A VARIETY OF FACTORS, MANY OF WHICH WILL HAVE BEEN SUGGESTED
BY THE EVIDENCE OR BY THE ARGUMENTS OF DEFENSE COUNSEL.  FOR A COURT TO
ATTEMPT TO CATALOG THE APPROPRIATE FACTORS IN THIS ELUSIVE AREA COULD
INHIBIT RATHER THAN EXPAND THE SCOPE OF CONSIDERATION, FOR NO LIST OF
CIRCUMSTANCES WOULD EVER BE REALLY COMPETE.  THE INFINITE VARIETY OF
CASES AND FACETS TO EACH CASE WOULD MAKE GENERAL STANDARDS EITHER
MEANINGLESS "BOILER-PLATE" OR A STATEMENT OF THE OBVIOUS THAT NO JURY
WOULD NEED. 

        IV 

AS WE NOTED AT THE OUTSET OF THIS OPINION, MCGAUTHA'S TRIAL WAS IN
TWO STAGES, WITH THE JURY CONSIDERING THE ISSUE OF GUILT BEFORE THE
PRESENTATION OF EVIDENCE AND ARGUMENT ON THE ISSUE OF PUNISHMENT.  SUCH
A PROCEDURE IS REQUIRED BY THE LAWS OF CALIFORNIA AND OF FIVE OTHER
STATES.  /19/  PETITIONER CRAMPTON, WHOSE GUILT AND PUNISHMENT WERE
DETERMINED AT A SINGLE TRIAL, CONTENDS THAT A PROCEDURE LIKE
CALIFORNIA'S IS COMPELLED BY THE CONSTITUTION AS WELL. 

THIS COURT HAS TWICE HAD OCCASION TO RULE ON SEPARATE PENALTY
PROCEEDINGS IN THE CONTEXT OF A CAPITAL CASE.  IN UNITED STATES V.
JACKSON, 390 U.S. 570 (1968), WE HELD UNCONSTITUTIONAL THE PENALTY
PROVISIONS OF THE FEDERAL KIDNAPING ACT, WHICH WE CONSTRUED TO MEAN
THAT A DEFENDANT DEMANDING A JURY TRIAL RISKED THE DEATH PENALTY WHILE
ONE PLEADING GUILTY OR AGREEING TO A BENCH TRIAL FACED A MAXIMUM
PUNISHMENT OF LIFE IMPRISONMENT.  THE GOVERNMENT HAD CONTENDED THAT IN
ORDER TO MITIGATE THIS DISCRIMINATION WE SHOULD ADOPT AN ALTERNATIVE
CONSTRUCTION, AUTHORIZING THE TRIAL JUDGE ACCEPTING A GUILTY PLEA OR
JURY WAIVER TO CONVENE A SPECIAL PENALTY JURY EMPOWERED TO RECOMMEND
THE DEATH SENTENCE.  ID., AT 572.  OUR REJECTION OF THIS CONTENTION WAS
NOT BASED SOLELY ON THE FACT THAT IT APPEARED TO RUN COUNTER TO THE
LANGUAGE AND LEGISLATIVE HISTORY OF THE ACT.  "(EVEN ON THE ASSUMPTION
THAT THE FAILURE OF CONGRESS TO (PROVIDE FOR THE CONVENING OF A PENALTY
JURY) WAS WHOLLY INADVERTENT, IT WOULD HARDLY BE THE PROVINCE OF THE
COURTS TO FASHION A REMEDY.  ANY ATTEMPT TO DO SO WOULD BE FRAUGHT WITH
THE GRAVEST DIFFICULTIES . . . ."  ID., AT 578-579.  WE THEREFORE
DECLINED "TO CREATE FROM WHOLE CLOTH A COMPLEX AND COMPLETELY NOVEL
PROCEDURE AND TO THRUST IT UPON UNWILLING DEFENDANTS FOR THE SOLE
PURPOSE OF RESCUING A STATUTE FROM A CHARGE OF UNCONSTITUTIONALITY." 
ID., AT 580.  JACKSON, HOWEVER, DID NOT CONSIDER THE POSSIBILITY THAT
SUCH A PROCEDURE MIGHT BE CONSTITUTIONALLY REQUIRED IN CAPITAL CASES. 

SUBSTANTIALLY THIS RESULT HAD BEEN SOUGHT BY THE PETITIONERS IN
SPENCER V. TEXAS, 385 U.S. 554 (1967).  LIKE CRAMPTON, SPENCER HAD BEEN
TRIED IN A UNITARY PROCEEDING BEFORE A JURY WHICH FIXED PUNISHMENT AT
DEATH.  ALSO LIKE CRAMPTON, SPENCER CONTENDED THAT THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRED A BIFURCATED TRIAL SO THAT
EVIDENCE RELEVANT SOLELY TO THE ISSUE OF PUNISHMENT WOULD NOT PREJUDICE
HIS CASE ON GUILT.  WE REJECTED THIS CONTENTION, IN THE FOLLOWING
LANGUAGE: 

"TO SAY THAT THE TWO-STAGE JURY TRIAL IN THE ENGLISH-CONNECTICUT
STYLE IS PROBABLY THE FAIREST, AS SOME COMMENTATORS AND COURTS HAVE
SUGGESTED, AND WITH WHICH WE MIGHT WELL AGREE WERE THE MATTER BEFORE US
IN A LEGISLATIVE OR RULE-MAKING CONTEXT, IS A FAR CRY FROM A
CONSTITUTIONAL DETERMINATION THAT THIS METHOD OF HANDLING THE PROBLEM
IS COMPELLED BY THE FOURTEENTH AMENDMENT.  TWO-PART JURY TRIALS ARE
RARE IN OUR JURISPRUDENCE; THEY HAVE NEVER BEEN COMPELLED BY THIS COURT
AS A MATTER OF CONSTITUTIONAL LAW, OR EVEN AS A MATTER OF FEDERAL
PROCEDURE.  WITH RECIDIVISM THE MAJOR PROBLEM THAT IT IS, SUBSTANTIAL
CHANGES IN TRIAL PROCEDURE IN COUNTLESS LOCAL COURTS AROUND THE COUNTRY
WOULD BE REQUIRED WERE THIS COURT TO SUSTAIN THE CONTENTIONS MADE BY
THESE PETITIONERS.  THIS WE ARE UNWILLING TO DO.  TO TAKE SUCH A STEP
WOULD BE QUITE BEYOND THE PALE OF THIS COURT'S PROPER FUNCTION IN OUR
FEDERAL SYSTEM."  ID., AT 567-568 (FOOTNOTES OMITTED).  SPENCER
CONSIDERED THE BIFURCATION ISSUE IN CONNECTION WITH THE STATE'S
INTRODUCTION OF EVIDENCE OF PRIOR CRIMES, WE NOW CONSIDER THE ISSUE IN
CONNECTION WITH A DEFENDANT'S CHOICE WHETHER TO TESTIFY IN HIS OWN
BEHALF.  BUT EVEN THOUGH THIS CASE CANNOT BE SAID TO BE CONTROLLED BY
SPENCER, OUR OPINION THERE PROVIDES A SIGNIFICANT GUIDE TO DECISION
HERE. 

        A 

CRAMPTON'S ARGUMENT FOR BIFURCATION RUNS AS FOLLOWS.  UNDER MALLOY V.
HOGAN, 378 U.S. 1 (1964), AND GRIFFIN V. CALIFORNIA, 380 U.S. 609
(1965), HE ENJOYED A CONSTITUTIONAL RIGHT NOT TO BE COMPELLED TO BE A
WITNESS AGAINST HIMSELF.  YET UNDER THE OHIO SINGLE-TRIAL PROCEDURE, HE
COULD REMAIN SILENT ON THE ISSUE OF GUILT ONLY AT THE COST OF
SURRENDERING ANY CHANCE TO PLEAD HIS CASE ON THE ISSUE OF PUNISHMENT. 
HE CONTENDS THAT UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, AS ELABORATED IN, E.G., TOWNSEND V. BURKE, 334 U.S. 736
(1948); SPECHT V. PATTERSON, 386 U.S. 605 (1967); AND MEMPA V. RHAY,
389 U.S. 128 (1967), HE HAD A RIGHT TO HAVE HIS SENTENCE FIXED WITHOUT
THE BENEFIT OF ALL THE RELEVANT EVIDENCE.  THEREFORE, HE ARGUES, THE
OHIO PROCEDURE POSSESSES THE FLAW WE CONDEMNED IN SIMMONS V. UNITED
STATES, 390 U.S. 377, 394 (1968); IT CREATES AN INTOLERABLE TENSION
BETWEEN CONSTITUTIONAL RIGHTS.  SINCE THIS TENSION CAN BE LARGELY
AVOIDED BY A BIFURCATED TRIAL, PETITIONER CONTENDS THAT THERE IS NO
LEGITIMATE STATE INTEREST IN PUTTING HIM TO THE ELECTION, AND THAT THE
SINGLE-VERDICT TRIAL SHOULD BE HELD INVALID IN CAPITAL CASES. 

SIMMONS, HOWEVER, DEALT WITH A VERY DIFFERENT SITUATION FROM THE ONE
WHICH CONFRONTED PETITIONER CRAMPTON, AND NOT EVERYTHING SAID IN THAT
OPINION CAN BE CARRIED OVER TO THIS CASE WITHOUT CIRCUMSPECTION.  IN
SIMMONS WE HELD IT UNCONSTITUTIONAL FOR THE FEDERAL GOVERNMENT TO USE
AT TRIAL THE DEFENDANT'S TESTIMONY GIVEN ON AN UNSUCCESSFUL MOTION TO
SUPPRESS EVIDENCE ALLEGEDLY SEIZED IN VIOLATION OF THE FOURTH
AMENDMENT.  WE CONCLUDED THAT TO PERMIT SUCH USE CREATED AN
UNACCEPTABLE RISK OF DETERRING THE PROSECUTION OF MARGINAL FOURTH
AMENDMENT CLAIMS, THUS WEAKENING THE EFFICACY OF THE EXCLUSIONARY RULE
AS A SANCTION FOR UNLAWFUL POLICE BEHAVIOR.  THIS WAS SURELY AN
ANALYTICALLY SUFFICIENT BASIS FOR DECISION.  HOWEVER, WE WENT ON TO
OBSERVE THAT THE PENALTY THUS IMPOSED ON THE GOOD-FAITH ASSERTION OF
FOURTH AMENDMENT RIGHTS WAS "OF A KIND TO WHICH THIS COURT HAS ALWAYS
BEEN PECULIARLY SENSITIVE," 390 U.S.,AT 393, FOR IT INVOLVED THE
INCRIMINATION OF THE DEFENDANT OUT OF HIS OWN MOUTH. 

WE FOUND IT NOT A LITTLE DIFFICULT TO SUPPORT THIS INVOCATION OF THE
FIFTH AMENDMENT PRIVILEGE.  WE RECOGNIZED THAT "(AS AN ABSTRACT MATTER"
THE TESTIMONY MIGHT BE VOLUNTARY, AND THAT TESTIMONY TO SECURE A
BENEFIT FROM THE GOVERNMENT IS NOT IPSO FACTO "COMPELLED" WITHIN THE
MEANING OF THE SELF-INCRIMINATION CLAUSE.  THE DISTINGUISHING FEATURE
IN SIMMONS' CASE, WE SAID, WAS THAT "THE 'BENEFIT' TO BE GAINED IS THAT
AFFORDED BY ANOTHER PROVISION OF THE BILL OF RIGHTS."  ID., AT 393
394.  THUS THE ONLY REAL BASIS FOR HOLDING THAT FIFTH AMENDMENT
POLICIES WERE INVOLVED WAS THE COLORABLE FOURTH AMENDMENT CLAIM WITH
WHICH WE HAD BEGUN. 

THE INSUBSTANTIALITY OF THE PURELY FIFTH AMENDMENT INTERESTS
INVOLVED IN SIMMONS WAS ILLUSTRATED LAST TERM BY THE TRILOGY OF CASES
INVOLVING GUILTY PLEAS:  BRADY V. UNITED STATES, 397 U.S. 742 (1970);
MCMANN V. RICHARDSON, 397 U.S. 759 (1970); PARKER V. NORTH CAROLINA,
397 U.S. 790 (1970).  WHILE IN SIMMONS WE RELIEVED THE DEFENDANT OF HIS
"WAIVER" OF FIFTH AMENDMENT RIGHTS MADE IN ORDER TO OBTAIN A BENEFIT TO
WHICH HE WAS ULTIMATELY FOUND NOT CONSTITUTIONALLY ENTITLED, IN THE
TRIOLOGY WE HELD THE DEFENDANTS BOUND BY "WAIVERS" OF RIGHTS UNDER THE
FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS MADE IN ORDER TO AVOID BURDENS
WHICH, IT WAS ULTIMATELY DETERMINED, COULD NOT CONSTITUTIONALLY HAVE
BEEN IMPOSED.  IN TERMS SOLELY OF FIFTH AMENDMENT POLICIES, IT IS
APPARENT THAT SIMMONS HAD A FAR WEAKER CLAIM TO BE RELIEVED OF HIS ILL
ADVISED "WAIVER" THAN DID THE DEFENDANTS IN THE GUILTY-PLEA TRILOGY. 
WHILE WE HAVE NO OCCASION TO QUESTION THE SOUNDNESS OF THE RESULT IN
SIMMONS AND DO NOT DO SO, TO THE EXTENT THAT ITS RATIONALE WAS BASED ON
A "TENSION" BETWEEN CONSTITUTIONAL RIGHTS AND THE POLICIES BEHIND THEM,
THE VALIDITY OF THAT REASONING MUST NOW BE REGARDED AS OPEN TO
QUESTION, AND IT CERTAINLY CANNOT BE GIVEN THE BROAD THRUST WHICH IS
ATTRIBUTED TO IT BY CRAMPTON IN THE PRESENT CASE. 

THE CRIMINAL PROCESS, LIKE THE REST OF THE LEGAL SYSTEM, IS REPLETE
WITH SITUATIONS REQUIRING "THE MAKING OF DIFFICULT JUDGMENTS" AS TO
WHICH COURSE TO FOLLOW.  MCMANN V. RICHARDSON 397 U.S.,AT 769. 
ALTHOUGH A DEFENDANT MAY HAVE A RIGHT, EVEN OF CONSTITUTIONAL
DIMENSIONS, TO FOLLOW WHICHEVER COURSE HE CHOOSES, THE CONSTITUTION
DOES NOT BY THAT TOKEN ALWAYS FORBID REQUIRING HIM TO CHOOSE.  THE
THRESHOLD QUESTION IS WHETHER COMPELLING THE ELECTION IMPAIRS TO AN
APPRECIABLE EXTENT ANY OF THE POLICIES BEHIND THE RIGHTS INVOLVED. 
ANALYSIS OF THIS CASE IN SUCH TERMS LEADS TO THE CONCLUSION THAT
PETITIONER HAS FAILED TO MAKE OUT HIS CLAIM OF A CONSTITUTIONAL
VIOLATION IN REQUIRING HIM TO UNDERGO A UNITARY TRIAL. 

        B 

WE TURN FIRST TO THE PRIVILEGE AGAINST COMPELLED SELF
INCRIMINATION.  THE CONTENTION IS THAT WHERE GUILT AND PUNISHMENT ARE
TO BE DETERMINED BY A JURY AT A SINGLE TRIAL THE DESIRE TO ADDRESS THE
JURY ON PUNISHMENT UNDULY ENCOURAGES WAIVER OF THE DEFENDANT'S
PRIVILEGE TO REMAIN SILENT ON THE ISSUE OF GUILT, OR, TO PUT THE MATTER
ANOTHER WAY, THAT THE SINGLE-VERDICT PROCEDURE UNLAWFULLY COMPELS THE
DEFENDANT TO BECOME A WITNESS AGAINST HIMSELF ON THE ISSUE OF GUILT BY
THE THREAT OF SENTENCING HIM TO DEATH WITHOUT HAVING HEARD FROM HIM. 
IT IS NOT CONTENDED, NOR COULD IT BE SUCCESSFULLY, THAT THE MERE FORCE
OF EVIDENCE IS COMPULSION OF THE SORT FORBIDDEN BY THE PRIVILEGE.  SEE
WILLIAMS V. FLORIDA, 399 U.S. 78, 83-85 (1970).  IT DOES NO VIOLENCE TO
THE PRIVILEGE THAT A PERSON'S CHOICE TO TESTIFY IN HIS OWN BEHALF MAY
OPEN THE DOOR TO OTHERWISE INADMISSIBLE EVIDENCE WHICH IS DAMAGING TO
HIS CASE.  SEE SPENCER V. TEXAS, 385 U.S.,AT 561 AND N. 7; CF.
MICHELSON V. UNITED STATES, 335 U.S. 469 (1948).  THE NARROW QUESTION
LEFT OPEN IS WHETHER IT IS CONSISTENT WITH THE PRIVILEGE FOR THE STATE
TO PROVIDE NO MEANS WHEREBY A DEFENDANT WISHING TO PRESENT EVIDENCE OR
TESTIMONY ON THE ISSUE PUNISHMENT MAY LIMIT THE FORCE OF HIS EVIDENCE
(AND THE STATE'S REBUTTAL) TO THAT ISSUE.  WE SEE NOTHING IN THE
HISTORY, POLICIES, OR PRECEDENTS RELATING TO THE PRIVILEGE WHICH
REQUIRES SUCH MEANS TO BE AVAILABLE. 

SO FAR AS THE HISTORY OF THE PRIVILEGE IS CONCERNED, IT SUFFICES TO
SAY THAT IT SHEDS NO LIGHT WHATEVER ON THE SUBJECT, UNLESS INDEED THAT
WHICH IS ADVERSE, RESULTING FROM THE CONTRAST BETWEEN THE DILEMMA OF
WHICH PETITIONER COMPLAINS AND THE HISTORICAL EXCESSES WHICH GAVE RISE
TO THE PRIVILEGE.  SEE GENERALLY 8 J. WIGMORE, EVIDENCE SEC. 2250
(MCNAUGHTON REV. ED. 1961); L. LEVY, ORIGINS OF THE FIFTH AMENDMENT
(1968).  INASMUCH AS AT THE TIME OF FRAMING OF THE FIFTH AMENDMENT AND
FOR MANY YEARS THEREAFTER THE ACCUSED IN CRIMINAL CASES WAS NOT ALLOWED
TO TESTIFY IN HIS OWN BEHALF, NOTHING APPROACHING CRAMPTON'S DILEMMA
COULD ARISE. 

THE POLICIES OF THE PRIVILEGE LIKEWISE ARE REMOTE SUPPORT FOR THE
PROPOSITION THAT DEFENDANTS SHOULD BE PERMITTED TO LIMIT THE EFFECTS OF
THEIR EVIDENCE TO THE ISSUE OF PUNISHMENT.  THE POLICIES BEHIND THE
PRIVILEGE ARE VARIED, AND NOT ALL ARE IMPLICATED IN ANY GIVEN
APPLICATION OF THE PRIVILEGE.  SEE MURPHY V. WATERFRONT COMMISSION, 378
U.S. 52, 55 (1964); SEE GENERALLY 9 J.WIGMORE, SUPRA, AT 2251, AND
SOURCES CITED THEREIN, N. 2.  IT CAN SAFELY BE SAID, HOWEVER, THAT TO
THE EXTENT THESE POLICIES PROVIDE ANY GUIDE TO DECISION, SEE MCKAY,
BOOK REVIEW, 35 N.Y.U.L.REV.  1097, 1100-1101 (1960), THE ONLY ONE
AFFECTED TO ANY APPRECIABLE DEGREE IS THAT OF "CRUELTY." 

IT IS UNDENIABLY HARD TO REQUIRE A DEFENDANT ON TRIAL FOR HIS LIFE
AND DESIROUS OF TESTIFYING ON THE ISSUE OF PUNISHMENT TO MAKE NICE
CALCULATIONS OF THE EFFECT OF HIS TESTIMONY ON THE JURY'S DETERMINATION
OF GUILT.  THE ISSUE OF CRUELTY THUS ARISING, HOWEVER, IS LESS CLOSELY
AKIN TO "THE CRUEL TRILEMMA OF SELF-ACCUSATION, PERJURY OR CONTEMPT,"
MURPHY V. WATERFRONT COMMISSION, 378 U.S.,AT 55, THAN TO THE
FUNDAMENTAL REQUIREMENTS OF FAIRNESS AND DECENCY EMBODIED IN THE DUE
PROCESS CLAUSES.  WHICHEVER LABEL IS PREFERRED, APPRAISING SUCH
CONSIDERATIONS IS INEVITABLY A MATTER OF JUDGMENT AS TO WHICH
INDIVIDUALS MAY DIFFER; HOWEVER, A GUIDE TO DECISION IS FURNISHED BY
THE CLEAR VALIDITY OF ANALOGOUS CHOICES WITH WHICH CRIMINAL DEFENDANTS
AND THEIR ATTORNEYS ARE QUITE ROUTINELY FACED. 

IT HAS LONG BEEN HELD THAT A DEFENDANT WHO TAKES THE STAND IN HIS
OWN BEHALF CANNOT THEN CLAIM THE PRIVILEGE AGAINST CROSS-EXAMINATION ON
MATTERS REASONABLY RELATED TO THE SUBJECT MATTER OF HIS DIRECT
EXAMINATION.  SEE, E.G., BROWN V. WALKER, 161 U.S. 591, 597-598 (1896);
FITZPATRICK V. UNITED STATES, 178 U.S. 304, 314-316 (1900); BROWN V.
UNITED STATES, 356 U.S. 148 (1958).  IT IS NOT THOUGHT OVERLY HARSH IN
SUCH SITUATIONS TO REQUIRE THAT THE DETERMINATION WHETHER TO WAIVE THE
PRIVILEGE TAKE INTO ACCOUNT THE MATTERS WHICH MAY BE BROUGHT OUT ON
CROSS-EXAIMINATION.  IT IS ALSO GENERALLY RECOGNIZED THAT A DEFENDANT
WHO TAKES THE STAND IN HIS OWN BEHALF MAY BE IMPEACHED BY PROOF OF
PRIOR CONVICTIONS OR THE LIKE.  SEE SPENCER V. TEXAS, 385 U.S.,AT 561;
CF. MICHELSON V. UNITED STATES, 335 U.S. 469 (1948); BUT CF. LUCK V.
UNITED STATES, 121 U.S.APP.D.C. 151, 348 F.2D 763 (1965); UNITED STATES
V. PALUMBO, 401 F.2D 270 (CA 2 1968).  AGAIN, IT IS NOT THOUGHT
INCONSISTENT WITH THE ENLIGHTENED ADMINISTRATION OF CRIMINAL JUSTICE TO
REQUIRE THE DEFENDANT TO WEIGH SUCH PROS AND CONS IN DECIDING WHETHER
TO TESTIFY. 

FURTHER, A DEFENDANT WHOSE MOTION FOR ACQUITTAL AT THE CLOSE OF THE
GOVERNMENT'S CASE IS DENIED MUST DECIDE WHETHER TO STAND ON HIS MOTION
OR PUT ON A DEFENSE, WITH THE RISK THAT IN SO DOING HE WILL BOLSTER THE
GOVERNMENT CASE ENOUGH FOR IT TO SUPPORT A VERDICT OF GUILTY.  E.G.,
UNITED STATES V. CALDERON, 348 U.S. 160, 164 AND N. 1 (1954); 2
C.WRIGHT, FEDERAL PRACTICE AND PROCEDURE 463 (1969); CF. AMERICAN BAR
ASSOCIATION, PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, TRIAL BY JURY
107-108 (APPROVED DRAFT, 1968).  BUT SEE COMMENT, THE MOTION FOR
ACQUITTAL:  A NEGLECTED SAFEGUARD, 70 YALE L.J. 1151 (1961); CF. CEPHUS
V. UNITED STATES, 117 U.S.APP.D.C. 15, 324 F.2D 893 (1963).  FINALLY,
ONLY LAST TERM IN WILLIAMS V. FLORIDA, 399 U.S. 78 (1970), WE HAD
OCCASION TO CONSIDER A FLORIDA "NOTICE-OF-ALIBI" RULE WHICH PUT THE
PETITIONER IN THAT CASE TO THE CHOICE OF EITHER ABANDONING HIS ALIBI
DEFENSE OR GIVING THE STATE BOTH AN OPPORTUNITY TO PREPARE A REBUTTAL
AND LEADS FROM WHICH TO START.  WE REJECTED THE CONTENTION THAT THE
RULE UNCONSTITUTIONALLY COMPELLED THE DEFENDANT TO INCRIMINATE
HIMSELF.  THE PRESSURES WHICH MIGHT LEAD THE DEFENDANT TO FURNISH THIS
ARGUABLY "TESTIMONIAL" AND "INCRIMINATING" INFORMATION AROSE SIMPLY
FROM 

"THE FORCE OF HISTORICAL FACT BEYOND BOTH HIS AND THE STATE'S
CONTROL AND THE STRENGTH OF THE STATE'S CASE BUILT ON THESE FACTS. 
RESPONSE TO THAT KIND OF PRESSURE BY OFFERING EVIDENCE OR TESTIMONY IS
NOT COMPELLED SELF-INCRIMINATION TRANSGRESSING THE FIFTH AND FOURTEENTH
AMENDMENTS."  ID., AT 85. 

WE ARE THUS CONSTRAINED TO REJECT THE SUGGESTION THAT A DESIRE TO
SPEAK TO ONE'S SENTENCER UNLAWFULLY COMPELS A DEFENDANT IN A SINGLE
VERDICT CAPITAL CASE TO INCRIMINATE HIMSELF, UNLESS THERE IS SOMETHING
WHICH SERVES TO DISTINGUISH SENTENCING-- OR AT LEAST CAPITAL SENTENCING
- FROM THE SITUATIONS GIVEN ABOVE.  SUCH A DISTINGUISHING FACTOR CAN
ONLY BE THE PECULIAR POIGNANCY OF THE POSITION OF A MAN WHOSE LIFE IS
AT STAKE, COUPLED WITH THE IMPONDERABLES OF THE DECISION WHICH THE JURY
IS CALLED UPON TO MAKE.  WE DO NOT THINK THAT THE FACT THAT A
DEFENDANT'S SENTENCE, RATHER THAN HIS GUILT, IS AT ISSUE CREATES A
CONSTITUTIONALLY SUFFICIENT DIFFERENCE FROM THE SORTS OF SITUATIONS WE
HAVE DESCRIBED.  WHILE WE RECOGNIZE THE TRUTH OF MR. JUSTICE
FRANKFURTER'S INSIGHT IN GREEN V. UNITED STATES, 365 U.S. 301, 304
(1961) (PLURALITY OPINION), AS TO THE PECULIAR IMMEDIACY OF A PERSONAL
PLEA BY THE DEFENDANT FOR LENIENCY IN SENTENCING, IT IS ALSO TRUE THAT
THE TESTIMONY OF AN ACCUSED DENYING THE CASE AGAINST HIM HAS
CONSIDERABLY MORE FORCE THAN COUNSEL'S ARGUMENT THAT THE PROSECUTION'S
CASE HAS NOT BEEN PROVED.  THE RELEVANT DIFFERENCES BETWEEN SENTENCING
AND DETERMINATION OF GUILT OR INNOCENCE ARE NOT SO GREAT AS TO CALL FOR
A DIFFERENCE IN CONSTITUTIONAL RESULT.  NOR DOES THE FACT THAT CAPITAL,
AS OPPOSED TO ANY OTHER, SENTENCING IS IN ISSUE SEEM TO US TO
DISTINGUISH THIS CASE.  SEE WILLIAMS V. NEW YORK, 337 U.S. 241, 251-252
(1949).  EVEN IN NON-CAPITAL SENTENCING THE SCIENCES OF PENOLOGY,
SOCIOLOGY, AND PSYCHOLOGY HAVE NOT ADVANCED TO THE POINT THAT
SENTENCING IS WHOLLY A MATTER OF SCIENTIFIC CALCULATION FROM
OBJECTIVELY VERIFIABLE FACTS. 

WE CONCLUDE THAT THE POLICIES OF THE PRIVILEGE AGAINST COMPELLED
SELF-INCRIMINATION ARE NOT OFFENDED WHEN A DEFENDANT IN A CAPITAL CASE
YIELDS TO THE PRESSURE TO TESTIFY ON THE ISSUE OF PUNISHMENT AT THE
RISK OF DAMAGING HIS CASE ON GUILT.  WE THEREFORE TURN TO THE CONVERSE
SITUATION, IN WHICH A DEFENDANT REMAINS SILENT ON THE ISSUE OF GUILT
AND THEREBY LOSES ANY OPPORTUNITY TO ADDRESS THE JURY PERSONALLY ON
PUNISHMENT. 

        C 

IT IS IMPORTANT TO IDENTIFY WITH PARTICULARLY THE INTERESTS WHICH
ARE INVOLVED.  PETITIONER SPEAKS BROADLY OF A RIGHT OF ALLOCUTION. 
THIS RIGHT, OF IMMEMORIAL ORIGIN, AROSE IN A CONTEXT VERY DIFFERENT
FROM THAT WHICH CONFRONTED PETITIONER CRAMPTON.  /20/  SEE GENERALLY
BARRETT, ALLOCUTION (PTS.  1-2), 9 MO.L.REV.  115, 232 (1944).  IT HAS
BEEN PRESERVED IN ITS ORIGINAL FORM IN OHIO AND IN MANY OTHER STATES. 
/21/  WHAT PETITIONER SEEKS, TO BE SURE FOR PURPOSES NOT WHOLLY
UNRELATED TO THOSE SERVED BY THE RIGHT OF ALLOCUTION IN FORMER TIMES,
SEE GREEN V. UNITED STATES, 365 U.S.,AT 304 (OPINION OF FRANKFURTER,
J.), IS NEVERTHELESS A VERY DIFFERENT PROCEDURE OCCURRING IN A
RADICALLY DIFFERENT FRAMEWORK OF CRIMINAL JUSTICE. 

LEAVING ASIDE THE TERM "ALLOCUTION," IT ALSO APPEARS THAT PETITIONER
IS NOT CLAIMING THE RIGHT SIMPLY TO BE HEARD ON THE ISSUE OF
PUNISHMENT.  THIS COURT HAS NOT DIRECTLY DETERMINED WHETHER OR TO WHAT
EXTENT THE CONCEPT OF DUE PROCESS OF LAW REQUIRES THAT A CRIMINAL
DEFENDANT WISHING TO PRESENT EVIDENCE OR ARGUMENT PRESUMABLY RELEVANT
TO THE ISSUES INVOLVED IN SENTENCING SHOULD BE PERMITTED TO DO SO. 
/22/  ASSUMING, WITHOUT DECIDING, THAT THE CONSTITUTION DOES REQUIRE
SUCH AN OPPORTUNITY, THERE WAS NO DENIAL OF SUCH A RIGHT IN CRAMPTON'S
CASE.  THE OHIO CONSTITUTION GUARANTEES DEFENDANTS THE RIGHT TO HAVE
THEIR COUNSEL ARGUE IN SUMMATION FOR MERCY AS WELL AS FOR ACQUITTAL. 
SHELTON V. STATE, 102 OHIO ST. 376, 131 N.E. 704 (1921).  THE EXTENT TO
WHICH EVIDENCE GOING SOLELY TO THE ISSUE OF PUNISHMENT IS ADMISSIBLE
UNDER OHIO LAW IS UNCLEAR, SEE ASHBROOK V. STATE, 49 OHIO APP. 298, 197
N.E. 214 (1935), BUT IN ANY EVENT IT SEEMS APPARENT THAT OHIO JUDGES,
AS ONE WOULD EXPECT, TAKE A LENIENT VIEW OF THE ADMISSIBILITY OF
EVIDENCE OFFERED BY A DEFENDANT ON TRIAL FOR HIS LIFE.  AS THE PRESENT
CASE ILLUSTRATES, AN ACCUSED CAN PUT BEFORE THE JURY A GREAT DEAL OF
BACKGROUND EVIDENCE WITH AT BEST A TENUOUS CONNECTION TO THE ISSUE OF
GUILT.  THE RECORD IN CRAMPTON'S CASE DOES NOT REVEAL THAT ANY EVIDENCE
OFFERED ON THE PART OF THE DEFENDANT WAS EXCLUDED ON THE GROUND THAT IT
WAS RELEVANT SOLELY TO THE ISSUE OF PUNISHMENT. 

ON THE OTHER HAND, PETITIONER IS NOT SEEKING VINDICATION FOR HIS
INTEREST IN MAKING A PERSONAL PLEA FOR MERCY.  /23/  EVEN IN A
BIFURCATED TRIAL, THE DEFENDANT COULD BE RESTRICTED TO THE GIVING OF
EVIDENCE, WITH ARGUMENT TO BE MADE BY COUNSEL ONLY.  PETITIONER'S
CONTENTION THEREFORE COMES DOWN TO THE FACT THAT THE OHIO SINGLE
VERDICT TRIAL MAY DETER THE DEFENDANT FROM BRINGING TO THE JURY'S
ATTENTION EVIDENCE PECULIARLY WITHIN HIS OWN KNOWLEDGE, AND IT MAY MEAN
THAT THE DEATH VERDICT WILL BE RETURNED BY A JURY WHICH NEVER HEARD THE
SOUND OF HIS VOICE.  WE DO NOT THINK THAT THE POSSIBILITY OF THE FORMER
IS SUFFICIENTLY GREAT TO SUSTAIN PETITIONER'S CLAIM THAT THE SINGLE
VERDICT TRIAL MAY DEPRIVE THE JURY OF A RATIONAL BASIS FOR FIXING
SENTENCE.  ASSUMING THAT IN THIS CASE THERE WAS RELEVANT INFORMATION
SOLELY WITHIN PETITIONER'S KNOWLEDGE, WE DO NOT THINK THE CONSTITUTION
FORBIDS A REQUIREMENT THAT SUCH EVIDENCE BE AVAILABLE TO THE JURY ON
ALL ISSUES TO WHICH IT IS RELEVANT OR NOT AT ALL.  AS TO THE LARGELY
SYMBOLIC VALUE REPRESENTED BY THE LATTER INTEREST, OHIO HAS PROVIDED
FOR RETENTION OF THE RITUAL OF ALLOCUTION, ALBEIT ONLY IN ITS COMMON
LAW FORM, PRECISELY TO AVOID THE POSSIBILITY THAT A PERSON MIGHT BE
TRIED, CONVICTED, AND SENTENCED TO DEATH IN COMPLETE SILENCE.  WE HAVE
HELD THAT FAILURE TO ENSURE SUCH PERSONAL PARTICIPATION IN THE CRIMINAL
PROCESS IS NOT NECESSARILY A CONSTITUTIONAL FLAW IN THE CONVICTION. 
HILL V. UNITED STATES, 368 U.S. 424 (1962).  WE DO NOT THINK THAT OHIO
WAS REQUIRED TO PROVIDE AN OPPORTUNITY FOR PETITIONER TO SPEAK TO THE
JURY FREE FROM ANY ADVERSE CONSEQUENCES ON THE ISSUE OF GUILT.  WE
THEREFORE REJECT THIS BRANCH OF PETITIONER'S ARGUMENT AS WELL. 
V 

BEFORE WE CONCLUDE THIS OPINION, IT IS APPROPRIATE FOR US TO MAKE A
BROADER OBSERVATION THAN THE ISSUES RAISED BY THESE CASES STRICTLY CALL
FOR.  IT MAY WELL BE, AS THE AMERICAN LAW INSTITUTE AND THE NATIONAL
COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS HAVE CONCLUDED, THAT
BIFURCATED TRIALS AND CRITERIA FOR JURY SENTENCING DISCRETION ARE
SUPERIOR MEANS OF DEALING WITH CAPITAL CASES IF THE DEATH PENALTY IS TO
BE RETAINED AT ALL.  BUT THE FEDERAL CONSTITUTION, WHICH MARKS THE
LIMITS OF OUR AUTHORITY IN THESE CASES, DOES NOT GUARANTEE TRIAL
PROCEDURES THAT ARE THE BEST OF ALL WORLDS, OR THAT ACCORD WITH THE
MOST ENLIGHTENED IDEAS OF STUDENTS OF THE INFANT SCIENCE OF
CRIMINOLOGY, OR EVEN THOSE THAT MEASURE UP TO THE INDIVIDUAL
PREDILECTIONS OF MEMBERS OF THIS COURT.  SEE SPENCER V. TEXAS, 385 U.S.
554 (1967).  THE CONSTITUTION REQUIRES NO MORE THAN THAT TRIALS BE
FAIRLY CONDUCTED AND THAT GUARANTEED RIGHTS OF DEFENDANTS BE
SCRUPULOUSLY RESPECTED.  FROM A CONSTITUTIONAL STANDPOINT WE CANNOT
CONCLUDE THAT IT IS IMPERMISSIBLE FOR A STATE TO CONSIDER THAT THE
COMPASSIONATE PURPOSES OF JURY SENTENCING IN CAPITAL CASES ARE BETTER
SERVED BY HAVING THE ISSUES OF GUILT AND PUNISHMENT DETERMINED IN A
SINGLE TRIAL THAN BY FOCUSING THE JURY'S ATTENTION SOLELY ON PUNISHMENT
AFTER THE ISSUE OF GUILT HAS BEEN DETERMINED. 

CERTAINLY THE FACTS OF THESE GRUESOME MURDERS BESPEAK NO MISCARRIAGE
OF JUSTICE.  THE ABILITY OF JURIES, UNASSISTED BY STANDARDS, TO
DISTINGUISH BETWEEN THOSE DEFENDANTS FOR WHOM THE DEATH PENALTY IS
APPROPRIATE PUNISHMENT AND THOSE FOR WHOM IMPRISONMENT IS SUFFICIENT IS
INDEED ILLUSTRATED BY THE DISCRIMINATING VERDICT OF THE JURY IN
MCGAUTHA'S CASE, FINDING WILKINSON THE LESS CULPABLE OF THE TWO
DEFENDANTS AND SPARING HIS LIFE. 

THE PROCEDURES WHICH PETITIONERS CHALLENGE ARE THOSE BY WHICH MOST
CAPITAL TRIALS IN THIS COUNTRY ARE CONDUCTED, AND BY WHICH ALL WERE
CONDUCTED UNTIL A FEW YEARS AGO.  WE HAVE DETERMINED THAT THESE
PROCEDURES ARE CONSISTENT WITH THE RIGHTS TO WHICH PETITIONERS WERE
CONSTITUTIONALLY ENTITLED, AND THAT THEIR TRIALS WERE ENTIRELY FAIR. 
HAVING REACHED THESE CONCLUSIONS WE HAVE PERFORMED OUR TASK OF
MEASURING THE STATES' PROCESS BY FEDERAL CONSTITUTIONAL STANDARDS, AND
ACCORDINGLY THE JUDGMENT IN EACH OF THESE CASES IS

              AFFIRMED. 

/0/  TOGETHER WITH NO. 204, CRAMPTON V. OHIO, ON CERTIORARI TO THE
SUPREME COURT OF OHIO. 

/1/  THE SAME TWO QUESTIONS WERE INCLUDED IN OUR GRANT OF CERTIORARI
IN MAXWELL V. BISHOP, 393 U.S. 997 (1968), TWO TERMS AGO.  AFTER TWICE
HEARING ARGUMENT IN THAT CASE, SEE 395 U.S. 918 (1969), WE REMANDED THE
CASE TO THE DISTRICT COURT FOR CONSIDERATION OF POSSIBLE VIOLATIONS OF
THE RULE OF WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968).  398 U.S. 262
(1970).  IN TAKING THAT COURSE WE AT THE SAME TIME GRANTED CERTIORARI
IN THE MCGAUTHA AND CRAMPTON CASES TO CONSIDER THE TWO QUESTIONS THUS
PRETERMITTED IN MAXWELL.  SEE ID., AT 267 N. 4. 

/2/  THE INFORMATION ALSO ALLEGED THAT MCGAUTHA HAD FOUR PRIOR
FELONY CONVICTIONS:  FELONIOUS THEFT, ROBBERY, MURDER WITHOUT MALICE,
AND ROBBERY BY ASSAULT.  THE MOST RECENT OF THESE CONVICTIONS OCCURRED
IN 1952.  IN A PROCEEDING IN CHAMBERS MCGAUTHA ADMITTED THE
CONVICTIONS, AND THE JURY DID NOT LEARN OF THEM AT THE GUILT STAGE OF
THE TRIAL. 

/3/  CAL. PENAL CODE SEC. 190.1 (1970 PROVIDES: 

"THE GUILT OR INNOCENCE OF EVERY PERSON CHARGED WITH AN OFFENSE FOR
WHICH THE PENALTY IS IN THE ALTERNATIVE DEATH OR IMPRISONMENT FOR LIFE
SHALL FIRST BE DETERMINED, WITHOUT A FINDING AS TO PENALTY.  IF SUCH
PERSON HAS BEEN FOUND GUILTY OF AN OFFENSE PUNISHABLE BY LIFE
IMPRISONMENT OR DEATH, AND HAS BEEN FOUND SANE ON ANY PLEA OF NOT
GUILTY BY REASON OF INSANITY, THERE SHALL THEREUPON BE FURTHER
PROCEEDINGS ON THE ISSUE OF PENALTY, AND THE TRIER OF FACT SHALL FIX
THE PENALTY.  EVIDENCE MAY BE PRESENTED AT THE FURTHER PROCEEDINGS ON
THE ISSUE OF PENALTY, OF THE CIRCUMSTANCES SURROUNDING THE CRIME, OF
THE DEFENDANT'S BACKGROUND AND HISTORY, AND OF ANY FACTS IN AGGRAVATION
OR MITIGATION OF THE PENALTY.  THE DETERMINATION OF THE PENALTY OF LIFE
IMPRISONMENT OR DEATH SHALL BE IN THE DISCRETION OF THE COURT OR JURY
TRYING THE ISSUE OF FACT ON THE EVIDENCE PRESENTED, AND THE PENALTY
FIXED SHALL BE EXPRESSLY STATED IN THE DECISION OR VERDICT.  THE DEATH
PENALTY SHALL NOT BE IMPOSED, HOWEVER, UPON ANY PERSON WHO WAS UNDER
THE AGE OF 18 YEARS AT THE TIME OF THE COMMISSION OF THE CRIME.  THE
BURDEN OF PROOF AS TO THE AGE OF SAID PERSON SHALL BE UPON THE
DEFENDANT. 

"IF THE DEFENDANT WAS CONVICTED BY THE COURT SITTING WITHOUT A JURY,
THE TRIER OF FACT SHALL BE THE COURT.  IF THE DEFENDANT WAS CONVICTED
BY A PLEA OF GUILTY, THE TRIER OF FACT SHALL BE A JURY UNLESS A JURY IS
WAIVED.  IF THE DEFENDANT WAS CONVICTED BY A JURY, THE TRIER OF FACT
SHALL BE THE SAME JURY UNLESS, FOR GOOD CAUSE SHOWN, THE COURT
DISCHARGES THAT JURY IN WHICH CASE A NEW JURY SHALL BE DRAWN TO
DETERMINE THE ISSUE OF PENALTY. 

"IN ANY CASE IN WHICH DEFENDANT HAS BEEN FOUND GUILTY BY A JURY, AND
THE SAME OR ANOTHER JURY, TRYING THE ISSUE OF PENALTY, IS UNABLE TO
REACH A UNANIMOUS VERDICT ON THE ISSUE OF PENALTY, THE COURT SHALL
DISMISS THE JURY AND EITHER IMPOSE THE PUNISHMENT FOR LIFE IN LIEU OF
ORDERING A NEW TRIAL ON THE ISSUE OF PENALTY, OR ORDER A NEW JURY
IMPANELED TO TRY THE ISSUE OF PENALTY, BUT THE ISSUE OF GUILT SHALL NOT
BE RETRIED BY SUCH JURY." 

/4/  THE PENALTY JURY INTERRUPTED ITS DELIBERATIONS TO ASK WHETHER A
SENTENCE OF LIFE IMPRISONMENT MEANT THAT THERE WAS NO POSSIBILITY OF
PAROLE.  THE TRIAL JUDGE RESPONDED AS FOLLOWS: 

"A SENTENCE OF LIFE IMPRISONMENT MEANS THAT THE PRISONER MAY BE
PAROLED AT SOME TIME DURING HIS LIFETIME OR THAT HE MAY SPEND THE
REMAINDER OF HIS NATURAL LIFE IN PRISON.  AN AGENCY KNOWN AS THE ADULT
AUTHORITY IS EMPOWERED BY STATUTE TO DETERMINE IF AND WHEN A PRISONER
IS TO BE PAROLED, AND UNDER THE STATUTE NO PRISONER CAN BE PAROLED
UNLESS THE ADULT AUTHORITY IS OF THE OPINION THAT THE PRISONER WHEN
RELEASED WILL ASSUME A PROPER PLACE IN SOCIETY AND THAT HIS RELEASE IS
NOT CONTRARY TO THE WELFARE OF SOCIETY.  A PRISONER RELEASED ON PAROLE
MAY REMAIN ON PAROLE FOR THE BALANCE OF HIS LIFE AND IF HE VIOLATES THE
TERMS OF THE PAROLE HE MAY BE RETURNED TO PRISON TO SERVE THE LIFE
SENTENCE. 

"SO THAT YOU WILL HAVE NO MISUNDERSTANDINGS RELATING TO A SENTENCE
OF LIFE IMPRISONMENT, YOU HAVE BEEN INFORMED AS TO THE GENERAL SCHEME
OF OUR PAROLE SYSTEM.  YOU ARE NOW INSTRUCTED, HOWEVER, THAT THE MATTER
OF PAROLE IS NOT TO BE CONSIDERED BY YOU IN DETERMINING THE PUNISHMENT
FOR EITHER DEFENDANT, AND YOU MAY NOT SPECULATE AS TO IF, OR WHEN,
PAROLE WOULD OR WOULD NOT BE GRANTED.  IT IS NOT YOUR FUNCTION TO
DECIDE NOW WHETHER THESE MEN WILL BE SUITABLE FOR PAROLE AT SOME FUTURE
DATE.  SO FAR AS YOU ARE CONCERNED, YOU ARE TO DECIDE ONLY WHETHER
THESE MEN SHALL SUFFER THE DEATH PENALTY OR WHETHER THEY SHALL BE
PERMITTED TO REMAIN ALIVE.  IF UPON CONSIDERATION OF THE EVIDENCE YOU
BELIEVE THAT LIFE IMPRISONMENT IS THE PROPER SENTENCE, YOU MUST ASSUME
THAT THOSE OFFICIALS CHARGED WITH THE OPERATION OF OUR PAROLE SYSTEM
WILL PERFORM THEIR DUTY IN A CORRECT AND RESPONSIBLE MANNER, AND THAT
THEY WILL NOT PAROLE A DEFENDANT UNLESS HE CAN BE SAFELY RELEASED INTO
SOCIETY.  IT WOULD BE A VIOLATION OF YOUR DUTY AS JURORS IF YOU WERE TO
FIX THE PENALTY AT DEATH BECAUSE OF A DOUBT THAT THE ADULT AUTHORITY
WILL PROPERLY CARRY OUT ITS RESPONSIBILITIES."  APP. 224-225. 

/5/  UNDER CALIFORNIA LAW THE TRIAL JUDGE HAS POWER TO REDUCE THE
PENALTY TO LIFE IF HE CONCLUDES THAT THE JURY'S VERDICT IS NOT
SUPPORTED BY THE WEIGHT OF THE EVIDENCE.  CAL. PENAL CODE SEC.
1181(7).  SEE IN RE ANDERSON, 69 CAL.2D 613, 623, 447 P.2D 117, 124
(1968).  THE CALIFORNIA SUPREME COURT, TO WHICH APPEAL IS AUTOMATIC IN
CAPITAL CASES, CAL. PENAL CODE SEC. 1239(B), HAS NO SUCH POWER.  PEOPLE
V. LOOKADOO, 66 CAL.2D 307, 327, 425 P.2D 208, 221 (1967). 

/6/  PURSUANT TO OHIO LAW, OHIO REV. CODE ANN. SEC. 2945.40 (1954),
CRAMPTON WAS COMMITTED TO A STATE MENTAL HOSPITAL FOR A MONTH OF
OBSERVATION.  AFTER A HEARING ON THE PSYCHIATRIC REPORT THE TRIAL COURT
DETERMINED THAT CRAMPTON WAS COMPETENT TO STAND TRIAL. 

/7/  UNDER OHIO LAW, A JURY'S DEATH VERDICT MAY NOT BE REDUCED AS
EXCESSIVE BY EITHER THE TRIAL OR THE APPELLATE COURT.  TURNER V. STATE,
21 OHIO LAW ABS.  276, 279-280 (CT. APP. 1936); STATE V. LUMPP.  15
OHIO OP.2D 461, 468, 175 N.E.2D 767, 775-776 (CT. APP.), APPEAL
DISMISSED, 171 OHIO ST. 62, 167 N.E.2D 778 (1960). 

/8/  THE LOWER COURTS THUS PLACED THEMSELVES IN ACCORD WITH ALL
OTHER AMERICAN JURISDICTIONS WHICH HAVE CONSIDERED THE ISSUE.  SEE,
E.G., IN RE ERNST, 294 F.2D 556 (CA3 1961); FLORIDA EX REL. THOMAS V.
CULVER, 253 F.2D 507 (CA5 1958); MAXWELL V. BISHOP, 398 F.2D 138 (CA8
1968), VACATED ON OTHER GROUNDS, 398 U.S. 262 (1970); SIMS V. EYMAN,
405 F.2D 439 (CA9 1969); SEGURA V. PATTERSON, 402 F.2D 249 (CA10 1968);
MCCANTS V. STATE, 282 ALA. 397,211 SO.2D 877 (1968); BAGLEY V. STATE,
247 ARK. 113, 444 S.W.2D 567 (1969); STATE V. WALTERS, 145 CONN. 60,
138 A.2D 786, APPEAL DISMISSED, 358 U.S. 46 (1958); WILSON V. STATE,
225 SO.2D 321 (FLA. 1969); MILLER V. STATE, 224 GA. 627, 163 S.E.2D 730
(1968); STATE V. LATHAM, 190 KAN. 411, 375 P.2D 788 (1962); DUISEN V.
STATE, 441 S.W.2D 688 (MO. 1969); STATE V. JOHNSON, 34 N.J. 212, 168
A.2D 1, APPEAL DISMISSED, 368 U.S. 145 (1961); PEOPLE V. FITZPATRICK,
61 MISC.2D 1043, 308 N.Y.S.2D 18 (1970); STATE V. ROSEBORO, 276 N.C.
185, 171 S.E.2D 886 (1970); HUNTER V. STATE, 222 TENN. 672, 440 S.W.2D
1 (1969); STATE V. KELBACH, 23 UTAH 2D 231, 461 P.2D 297 (1969);
JOHNSON V. COMMONWEALTH, 208 VA. 481, 158 S.E.2D 725 (1968); STATE V.
SMITH, 74 WASH.2D 744, 446 P.2D 571 (1968). 

/9/  IN CONTEXT THE EMPHASIS IS ON THE CONFUSING DISTINCTION BETWEEN
DEGREES OF MURDER, NOT THE DESIRABILITY OF JURIES' SENTENCING
DISCRETION.  IT MAY ALSO BE NOTED THAT THE FORMER NEW YORK DEFINITIONS
OF FIRST- AND SECOND-DEGREE MURDER WERE SOMEWHAT UNUSUAL.  SEE WECHSLER
& MICHAEL, 37 COL.L.REV.,AT 704 N. 13, 709 N. 26. 

/10/  THE PRACTICE OF JURY SENTENCING AROSE IN THIS COUNTRY DURING
THE COLONIAL PERIOD FOR CASES NOT INVOLVING CAPITAL PUNISHMENT.  IT HAS
BEEN SUGGESTED THAT THIS WAS A "REACTION TO HARSH PENALTIES IMPOSED BY
JUDGES APPOINTED AND CONTROLLED BY THE CROWN" AND A RESULT OF "THE
EARLY DISTRUST OF GOVERNMENTAL POWER."  PRESIDENT'S COMMISSION ON LAW
ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:  THE
COURTS 26 (1967). 

/11/  CALIFORNIA AND OHIO, THE TWO STATES INVOLVED IN THESE CASES,
ABOLISHED MANDATORY DEATH PENALTIES IN FAVOR OF JURY DISCRETION IN 1874
AND 1898.  ACT OF MAR. 28, 1874, C. 508, CAL. AMENDATORY ACTS 1873
1874, P. 457; OHIO LAWS 1898, P. 223.  EXCEPT FOR FOUR STATES THAT
ENTIRELY ABOLISHED CAPITAL PUNISHMENT IN THE MIDDLE OF THE LAST
CENTURY, EVERY AMERICAN JURISDICTION HAS AT SOME TIME AUTHORIZED JURY
SENTENCING IN CAPITAL CASES.  NONE OF THESE STATUTES HAVE PROVIDED
STANDARDS FOR THE CHOICE BETWEEN DEATH AND LIFE IMPRISONMENT.  SEE
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 128-137. 

/12/  SEE ALSO CALTON V. UTAH, 130 U.S. 83 (1889), IN WHICH THE
COURT REVERSED A CONVICTION UNDER THE STATUTES OF UTAH TERRITORY IN
WHICH THE JURY HAD NOT BEEN INFORMED OF ITS RIGHT UNDER THE TERRITORIAL
CODE TO RECOMMEND A SENTENCE OF IMPRISONMENT FOR LIFE AT HARD LABOR
INSTEAD OF DEATH. 

/13/  MODEL PENAL CODE SEC. 201.6 (TENT.  DRAFT NO. 9, 1959).  THE
CRITERIA WERE REVISED AND APPROVED BY THE INSTITUTE IN 1962 AND NOW
APPEAR IN SEC. 210.6 OF THE PROPOSED OFFICIAL DRAFT OF THE MODEL PENAL
CODE.  AS REVISED THEY APPEAR IN THE APPENDIX TO THIS OPINION.  MORE
RECENTLY THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS
PUBLISHED A STUDY DRAFT OF A NEW FEDERAL CRIMINAL CODE (1970).  SECTION
3605 CONTAINED STANDARDS VIRTUALLY IDENTICAL TO THOSE OF THE MODEL
PENAL CODE.  THE STATEMENT OF THE CHAIRMAN OF THE COMMISSION,
SUBMITTING THE STUDY DRAFT FOR PUBLIC COMMENT, DESCRIBED IT AS
"SOMETHING MORE THAN A STAFF REPORT AND LESS THAN A COMMITMENT BY THE
COMMISSION OR ANY OF ITS MEMBERS TO EVERY ASPECT OF THE DRAFT."  STUDY
DRAFT XX.  THE PRIMARY DIFFERENCES BETWEEN THE PROCEDURAL PROVISIONS
FOR CAPITAL SENTENCING IN THE MODEL PENAL CODE AND THOSE IN THE STUDY
DRAFT ARE THAT THE CODE PROVIDES THAT THE COURT AND JURY "SHALL" TAKE
THE CRITERIA INTO ACCOUNT, WHILE THE STUDY DRAFT PROVIDED THAT THEY
"MAY" DO SO; AND THE MODEL PENAL CODE FORBIDS IMPOSITION OF THE DEATH
PENALTY WHERE NO AGGRAVATING CIRCUMSTANCES ARE FOUND, WHILE THE STUDY
DRAFT SHOWED THIS ONLY AS AN ALTERNATIVE PROVISION.  THE LATTER FEATURE
IS AFFECTED BY THE FACT THAT ONLY A VERY FEW MURDERS WERE TO BE MADE
CAPITAL.  SEE ID., AT 307.  IN ITS FINAL REPORT (1971), THE COMMISSION
RECOMMENDED ABOLITION OF THE DEATH PENALTY FOR FEDERAL CRIMES.  AN
ALTERNATE VERSION, SAID TO REPRESENT A "SUBSTANTIAL BODY OF OPINION IN
THE COMMISSION," ID., COMMENT TO PROVISIONAL SEC. 3601, PROVIDED FOR
RETENTION OF CAPITAL PUNISHMENT FOR MURDER AND TREASON WITH PROCEDURAL
PROVISIONS WHICH DID NOT SIGNIFICANTLY DIFFER FROM THOSE IN THE STUDY
DRAFT. 

/14/  SEE, E.G., N.Y. PENAL LAW SEC. 65.00 (1967) (CRITERIA FOR
JUDGES IN KECIDING ON PROBATION). 

/15/  E.G., N.M. STAT. ANN. SECS. 40A-29-2.1, 40A-29-2.2 (SUPP.
1969), REDUCING THE CLASS OF CAPITAL CRIMES.     /16/  THE MODEL PENAL
CODE PROVIDES THAT THE JURY SHOULD NOT FIX PUNISHMENT AT DEATH UNLESS
IT FOUND AT LEAST ONE OF THE AGGRAVATING CIRCUMSTANCES AND NO
SUFFICIENTLY SUBSTANTIAL MITIGATING CIRCUMSTANCES.  MODEL PENAL CODE
SEC. 210.6(2) (PROPOSED OFFICIAL DRAFT, 1962).  AS THE REPORTER'S
COMMENT RECOGNIZED, THERE IS NO FUNDAMENTAL DISTINCTION BETWEEN THIS
PROCEDURE AND A REDEFINITION OF THE CLASS OF POTENTIALLY CAPITAL
MURDERS.  MODEL PENAL CODE SEC. 201.6, COMMENT 3, PP. 71-72 (TENT. 
DRAFT NO. 9, 1959).  AS WE UNDERSTAND THESE PETITIONERS'  CONTENTIONS,
THEY SEEK STANDARDS FOR GUIDING THE SENTENCING AUTHORITY'S DISCRETION,
NOT A GREATER STRICTNESS IN THE DEFINITION OF THE CLASS OF CASES IN
WHICH THE DISCRETION EXISTS.  IF WE ARE MISTAKEN IN THIS, AND
PETITIONERS CONTEND THAT OHIO'S AND CALIFORNIA'S DEFINITIONS OF FIRST
DEGREE MURDER ARE TOO BROAD, WE CONSIDER THEIR POSITION
CONSTITUTIONALLY UNTENABLE. 

/17/  THE ISSUE WHETHER A DEFENDANT IS ENTITLED TO AN INSTRUCTION
THAT CERTAIN FACTORS SUCH AS RACE ARE NOT TO BE TAKEN INTO
CONSIDERATION IS NOT BEFORE US, AS THE JURIES WERE TOLD NOT TO BASE
THEIR DECISIONS ON "PREJUDICE," AND NO MORE SPECIFIC INSTRUCTIONS WERE
REQUESTED.  CF. GRIFFIN V. CALIFORNIA, 380 U.S. 609, 614-615 AND N. 6
(1965). 

/18/  GIACCIO V. PENNSYLVANIA, 382 U.S. 399 (1966), DOES NOT POINT
TO A CONTRARY RESULT.  IN GIACCIO THE COURT HELD INVALID ON ITS FACE A
PENNSYLVANIA STATUTE WHICH AUTHORIZED CRIMINAL JURIES TO ASSESS COSTS
AGAINST DEFENDANTS WHOSE CONDUCT, ALTHOUGH NOT AMOUNTING TO THE CRIME
WITH WHICH THEY WERE CHARGED, WAS NEVERTHELESS FOUND TO BE
"REPREHENSIBLE."  THE COURT CONCLUDED THAT THE STATUTE WAS NO MORE
SOUND THAN ONE WHICH SIMPLY MADE IT A CRIME TO ENGAGE IN "REPREHENSIBLE
CONDUCT" AND CONSEQUENTLY THAT IT WAS UNCONSTITUTIONALLY VAGUE.  THE
COURT THERE STATED: 

"IN SO HOLDING WE INTEND TO CAST NO DOUBT WHATEVER ON THE
CONSTITUTIONALITY OF THE SETTLED PRACTICE OF MANY STATES TO LEAVE TO
JURIES FINDING DEFENDANTS GUILTY OF A CRIME THE POWER TO FIX PUNISHMENT
WITHIN LEGALLY PRESCRIBED LIMITS."  ID., AT 405 N. 8. 

/19/  CAL. PENAL CODE SEC. 190.1 (1970); CONN. GEN. STAT. REV. SEC.
53A-46 (SUPP. 1969); ACT OF MAR. 27, 1970, NO. 1333, GA. LAWS 1970, P.
949; N.Y. PENAL LAW SECS. 125.30 (SUPP. 1970-1971), 125.35 (1967); PA.
STAT. ANN., TIT. 18, SEC. 4701 (1963); TEX. CODE CRIM. PROC., ART.
37.07(2)(B) (SUPP. 1970-1971).  SEE ALSO MODEL PENAL CODE SEC. 210.6(2)
(PROPOSED OFFICIAL DRAFT.  1962); NATIONAL COMMISSION ON REFORM OF
FEDERAL CRIMINAL ALWS, FINAL REPORT, PROVISIONAL SEC. 3602 (1971);
REPORT OF THE ROYAL COMMISSION ON CAPITAL PUNISHMENT, 1949-1953, CMD. 
8932, PARAS. 551-595. 

/20/  FOR INSTANCE, THE ACCUSED WAS NOT PERMITTED TO HAVE THE
ASSISTANCE OF COUNSEL, WAS NOT PERMITTED TO TESTIFY IN HIS OWN BEHALF,
WAS NOT ENTITLED TO PUT ON EVIDENCE IN HIS BEHALF, AND HAD ALMOST NO
POSSIBILITY OF REVIEW OF HIS CONVICTION.  SEE, E.G., G. WILLIAMS, THE
PROOF OF GUILT 4-12 (3D ED. 1963); 1 J.STEPHEN, A HISTORY OF THE
CRIMINAL LAW OF ENGLAND 308-311, 350 (1883). 

/21/  OHIO REV. CODE ANN. SEC. 2947.05 (1954) PROVIDES: 

"BEFORE SENTENCE IS PRONOUNCED, THE DEFENDANT MUST BE INFORMED BY
THE COURT OF THE VERDICT OF THE JURY, OR THE FINDING OF THE COURT, AND
ASKED WHETHER HE HAS ANYTHING TO SAY AS TO WHY JUDGMENT SHOULD NOT BE
PRONOUNCED AGAINST HIM." 

/22/  IN WILLIAMS V. NEW YORK, 337 U.S. 241 (1949), A TRIAL JUDGE
HAD DISREGARDED A JURY RECOMMENDATION OF MERCY AND IMPOSED THE DEATH
SENTENCE, IN PART BECAUSE OF A PRESENTENCE REPORT BASED ON HEARSAY. 
THE COURT HELD THAT THE DUE PROCESS CLAUSE DID NOT REQUIRE A STATE TO
CHOOSE BETWEEN PROHIBITING THE USE OF SUCH REPORTS AND HOLDING AN
ADVERSARY HEARING AT WHICH THE DEFENDANT COULD CROSS-EXAMINE THE
SOURCES OF THE INFORMATION CONTAINED THEREIN.  IN SPECHT V. PATTERSON,
386 U.S. 605, 606 (1967), THE COURT CHARACTERIZED WILLIAMS BROADLY AS
HOLDING THAT THE FOURTEENTH AMENDMENT "DID NOT REQUIRE A JUDGE TO HAVE
HEARINGS AND TO GIVE A CONVICTED PERSON AN OPPORTUNITY TO PARTICIPATE
IN THOSE HEARINGS WHEN HE CAME TO DETERMINE THE SENTENCE TO BE
IMPOSED."  THE COURT STATED THAT IT ADHERED TO WILLIAMS, BUT DECLINED
TO EXTEND IT TO A SEPARATE DETERMINATION WHETHER A CONVICTED PERSON
SHOULD BE COMMITTED TO AN INSTITUTION FOR TREATMENT UNDER THE COLORADO
SEX OFFENDERS ACT.  ID., AT 608.  SEE ALSO MEMPA V. RHAY, 389 U.S. 128
(1967). 

IN GREEN V. UNITED STATES, 365 U.S. 301, 304 (1961), MR. JUSTICE
FRANKFURTER, IN AN OPINION FOR FOUR MEMBERS OF THE COURT, SPOKE
ELOQUENTLY OF THE DESIRABILITY OF PERMITTING A DEFENDANT'S PERSONAL
PLEA FOR MERCY, BUT IN HILL V. UNITED STATES, 368 U.S. 424 (1962), THE
COURT HELD THAT THE FAILURE OF A SENTENCING JUDGE TO ASK A DEFENDANT
REPRESENTED BY COUNSEL WHETHER HE PERSONALLY HAD ANYTHING TO SAY,
THOUGH A VIOLATION OF FED. RULE CRIM. PROC. 32(A), WAS NOT AN ERROR OF
CONSTITUTIONAL DIMENSIONS.  THE COURT RESERVED THE ISSUE WHETHER
SILENCING A DEFENDANT WHO WISHED TO SPEAK WOULD RISE TO THAT LEVEL. 
ID., AT 429.  WE HAVE NOT SINCE HAD OCCASION TO DEAL WITH THIS OR
RELATED PROBLEMS AT LENGTH. 

/23/  IT MAY BE NOTED IN PASSING THAT PETITIONER AT NO POINT
REQUESTED AN OPPORTUNITY TO ADDRESS THE JURY PERSONALLY ON THE ISSUE OF
PUNISHMENT.  COMPARE THE GEORGIA PRACTICE OF PERMITTING THE DEFENDANT
TO MAKE AN UNSWORN STATEMENT ON WHICH HE IS NOT SUBJECT TO CROSS
EXAMINATION, AND THE DEPRECATING VIEW OF THIS OPPORTUNITY TAKEN BY
THOSE FAMILIAR WITH IT, ALL DISCUSSED IN FERGUSON V. GEORGIA, 365 U.S.
570 (1961). 

 APPENDIX TO OPINION OF THE COURT 

MODEL PENAL CODE SEC. 210.6 (PROPOSED OFFICIAL DRAFT, 1962, AND
CHANGES OF JULY 30, 1962): 

(1) DEATH SENTENCE EXCLUDED.  WHEN A DEFENDANT IS FOUND GUILTY OF
MURDER, THE COURT SHALL IMPOSE SENTENCE FOR A FELONY OF THE FIRST
DEGREE IF IT IS SATISFIED THAT: 

(A) NONE OF THE AGGRAVATING CIRCUMSTANCES ENUMERATED IN SUBSECTION
(3) OF THIS SECTION WAS ESTABLISHED BY THE EVIDENCE AT THE TRIAL OR
WILL BE ESTABLISHED IF FURTHER PROCEEDINGS ARE INITIATED UNDER
SUBSECTION (2) OF THIS SECTION; OR 

(B) SUBSTANTIAL MITIGATING CIRCUMSTANCES, ESTABLISHED BY THE
EVIDENCE AT THE TRIAL, CALL FOR LENIENCY; OR 

(C) THE DEFENDANT, WITH THE CONSENT OF THE PROSECUTING ATTORNEY AND
THE APPROVAL OF THE COURT, PLEADED GUILTY TO MURDER AS A FELONY OF THE
FIRST DEGREE; OR 

(D) THE DEFENDANT WAS UNDER 18 YEARS OF AGE AT THE TIME OF THE
COMMISSION OF THE CRIME; OR 

(E) THE DEFENDANT'S PHYSICAL OR MENTAL CONDITION CALLS FOR LENIENCY;
OR 

(F) ALTHOUGH THE EVIDENCE SUFFICES TO SUSTAIN THE VERDICT, IT DOES
NOT FORECLOSE ALL DOUBT RESPECTING THE DEFENDANT'S GUILT. 

(2) DETERMINATION BY COURT OR BY COURT AND JURY.  UNLESS THE COURT
IMPOSES SENTENCE UNDER SUBSECTION (1) OF THIS SECTION, IT SHALL CONDUCT
A SEPARATE PROCEEDING TO DETERMINE WHETHER THE DEFENDANT SHOULD BE
SENTENCED FOR A FELONY OF THE FIRST DEGREE OR SENTENCED TO DEATH.  THE
PROCEEDING SHALL BE CONDUCTED BEFORE THE COURT ALONE IF THE DEFENDANT
WAS CONVICTED BY A COURT SITTING WITHOUT A JURY OR UPON HIS PLEA OF
GUILTY OR IF THE PROSECUTING ATTORNEY AND THE DEFENDANT WAIVE A JURY
WITH RESPECT TO SENTENCE.  IN OTHER CASES IT SHALL BE CONDUCTED BEFORE
THE COURT SITTING WITH THE JURY WHICH DETERMINED THE DEFENDANT'S GUILT
OR, IF THE COURT FOR GOOD CAUSE SHOWN DISCHARGES THAT THE JURY, WITH A
NEW JURY EMPANELLED FOR THE PURPOSE. 

IN THE PROCEEDING, EVIDENCE MAY BE PRESENTED AS TO ANY MATTER THAT
THE COURT DEEMS RELEVANT TO SENTENCE, INCLUDING BUT NOT LIMITED TO THE
NATURE AND CIRCUMSTANCES OF THE CRIME, THE DEFENDANT'S CHARACTER,
BACKGROUND, HISTORY, MENTAL AND PHYSICAL CONDITION AND ANY OF THE
AGGRAVATING OR MITIGATING CIRCUMSTANCES ENUMERATED IN SUBSECTIONS (3)
AND (4) OF THIS SECTION.  ANY SUCH EVIDENCE, NOT LEGALLY PRIVILEGED,
WHICH THE COURT DEEMS TO HAVE PROBATIVE FORCE, MAY BE RECEIVED,
REGARDLESS OF ITS ADMISSIBILITY UNDER THE EXCLUSIONARY RULES OF
EVIDENCE, PROVIDED THAT THE DEFENDANT OR HIS COUNSEL SHALL BE PERMITTED
TO PRESENT ARGUMENT FOR OR AGAINST SENTENCE OF DEATH. 

THE DETERMINATION WHETHER SENTENCE OF DEATH SHALL BE IMPOSED SHALL
BE IN THE DISCRETION OF THE COURT, EXCEPT THAT WHEN THE PROCEEDING IS
CONDUCTED BEFORE THE COURT SITTING WITH A JURY, THE COURT SHALL NOT
IMPOSE SENTENCE OF DEATH UNLESS IT SUBMITS TO THE JURY THE ISSUE
WHETHER THE DEFENDANT SHOULD BE SENTENCED TO DEATH OR TO IMPRISONMENT
AND THE JURY RETURNS A VERDICT THAT THE SENTENCE SHOULD BE DEATH.  IF
THE JURY IS UNABLE TO REACH A UNANIMOUS VERDICT, THE COURT SHALL
DISMISS THE JURY AND IMPOSE SENTENCE FOR A FELONY OF THE FIRST DEGREE. 

THE COURT IN EXERCISING ITS DISCRETION AS TO SENTENCE, AND THE JURY,
IN DETERMINING UPON ITS VERDICT, SHALL TAKE INTO ACCOUNT THE
AGGRAVATING AND MITIGATING CIRCUMSTANCES ENUMERATED IN SUBSECTIONS (3)
AND (4) AND ANY OTHER FACTS THAT IT DEEMS RELEVANT, BUT IT SHALL NOT
IMPOSE OR RECOMMEND SENTENCE OF DEATH UNLESS IT FINDS ONE OF THE
AGGRAVATING CIRCUMSTANCES ENUMERATED IN SUBSECTION (3) AND FURTHER
FINDS THAT THERE ARE NO MITIGATING CIRCUMSTANCES SUFFICIENTLY
SUBSTANTIAL TO CALL FOR LENIENCY.  WHEN THE ISSUE IS SUBMITTED TO THE
JURY, THE COURT SHALL SO INSTRUCT AND ALSO SHALL INFORM THE JURY OF THE
NATURE OF THE SENTENCE OF IMPRISONMENT THAT MAY BE IMPOSED, INCLUDING
ITS IMPLICATION WITH RESPECT TO POSSIBLE RELEASE UPON PAROLE, IF THE
JURY VERDICT IS AGAINST SENTENCE OF DEATH. 

(ALTERNATIVE VERSION OF SUBSECTION (2), PROVIDING FOR DETERMINATION
OF SENTENCE BY THE COURT IN ALL CASES, OMITTED.) 

(3) AGGRAVATING CIRCUMSTANCES. 

(A) THE MURDER WAS COMMITTED BY A CONVICT UNDER SENTENCE OF
IMPRISONMENT. 

(B) THE DEFENDANT WAS PREVIOUSLY CONVICTED OF ANOTHER MURDER OR OF A
FELONY INVOLVING THE USE OR THREAT OF VIOLENCE TO THE PERSON. 

(C) AT THE TIME THE MURDER WAS COMMITTED THE DEFENDANT ALSO
COMMITTED ANOTHER MURDER. 

(D) THE DEFENDANT KNOWINGLY CREATED A GREAT RISK OF DEATH TO MANY
PERSONS. 

(E) THE MURDER WAS COMMITTED WHILE THE DEFENDANT WAS ENGAGED OR WAS
AN ACCOMPLICE IN THE COMMISSION OF, OR AN ATTEMPT TO COMMIT, OR FLIGHT
AFTER COMMITTING OR ATTEMPTING TO COMMIT ROBBERY, RAPE OR DEVIATE
SEXUAL INTERCOURSE BY FORCE OR THREAT OF FORCE, ARSON, BURGLARY OR
KIDNAPPING. 

(F) THE MURDER WAS COMMITTED FOR THE PURPOSE OF AVOIDING OR
PREVENTING A LAWFUL ARREST OR EFFECTING AN ESCAPE FROM LAWFUL CUSTODY. 

(G) THE MURDER WAS COMMITTED FOR PECUNIARY GAIN. 

(H) THE MURDER WAS ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL,
MANIFESTING EXCEPTIONAL DEPRAVITY. 

(4) MITIGATING CIRCUMSTANCES. 

(A) THE DEFENDANT HAS NO SIGNIFICANT HISTORY OF PRIOR CRIMINAL
ACTIVITY. 

(B) THE MURDER WAS COMMITTED WHILE THE DEFENDANT WAS UNDER THE
INFLUENCE OF EXTREME MENTAL OR EMOTIONAL DISTURBANCE. 

(C) THE VICTIM WAS A PARTICIPANT IN THE DEFENDANT'S HOMICIDAL
CONDUCT OR CONSENTED TO THE HOMICIDAL ACT. 

(D) THE MURDER WAS COMMITTED UNDER CIRCUMSTANCES WHICH THE DEFENDANT
BELIEVED TO PROVIDE A MORAL JUSTIFICATION OR EXTENUATION FOR HIS
CONDUCT. 

(E) THE DEFENDANT WAS AN ACCOMPLICE IN A MURDER COMMITTED BY ANOTHER
PERSON AND HIS PARTICIPATION IN THE HOMICIDAL ACT WAS RELATIVELY
MINOR. 

(F) THE DEFENDANT ACTED UNDER DURESS OR UNDER THE DOMINATION OF
ANOTHER PERSON. 

(G) AT THE TIME OF THE MURDER, THE CAPACITY OF THE DEFENDANT TO
APPRECIATE THE CRIMINALITY (WRONGFULNESS) OF HIS CONDUCT OR TO CONFORM
HIS CONDUCT TO THE REQUIREMENTS OF LAW WAS IMPAIRED AS A RESULT OF
MENTAL DISEASE OR DEFECT OR INTOXICATION. 

(H) THE YOUTH OF THE DEFENDANT AT THE TIME OF THE CRIME. 

SEPARATE OPINION OF MR. JUSTICE BLACK. 

I CONCUR IN THE COURT'S JUDGMENTS AND IN SUBSTANTIALLY ALL OF ITS
OPINION.  HOWEVER, IN MY VIEW, THIS COURT'S TASK IS NOT TO DETERMINE
WHETHER THE PETITIONERS' TRIALS WERE "FAIRLY CONDUCTED."  ANTE, AT
221.  THE CONSTITUTION GRANTS THIS COURT NO POWER TO RESERVE
CONVICTIONS BECAUSE OF OUR PERSONAL BELIEFS THAT STATE CRIMINAL
PROCEDURES ARE "UNFAIR," "ARBITRARY," "CAPRICIOUS," "UNREASONABLE," OR
"SHOCKING TO OUR CONSCIENCE."  SEE, E.G., ROCHIN V. CALIFORNIA, 342
U.S. 165, 174 (1952) (BLACK, J., CONCURRING); UNITED STATES V. WADE,
388 U.S. 218, 243 (1967) (BLACK, J., CONCURRING AND DISSENTING).  OUR
RESPONSIBILITY IS RATHER TO DETERMINE WHETHER PETITIONERS HAVE BEEN
DENIED RIGHTS EXPRESSLY OR IMPLIEDLY GUARANTEED BY THE FEDERAL
CONSTITUTION AS WRITTEN.  I AGREE WITH THE COURT'S CONCLUSIONS THAT THE
PROCEDURES EMPLOYED BY CALIFORNIA AND OHIO TO DETERMINE WHETHER CAPITAL
PUNISHMENT SHALL BE IMPOSED DO NOT OFFEND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  LIKEWISE, I DO NOT BELIEVE THAT PETITIONERS HAVE
BEEN DEPRIVED OF ANY OTHER RIGHT EXPLICITLY OR IMPLIEDLY GUARANTEED BY
THE OTHER PROVISIONS OF THE BILL OF RIGHTS.  THE EIGHTH AMENDMENT
FORBIDS "CRUEL AND UNUSUAL PUNISHMENTS."  IN MY VIEW, THESE WORDS
CANNOT BE READ TO OUTLAW CAPITAL PUNISHMENT BECUASE THAT PENALTY WAS IN
COMMON USE AND AUTHORIZED BY LAW HERE AND IN THE COUNTRIES FROM WHICH
OUR ANCESTORS CAME AT THE TIME THE AMENDMENT WAS ADOPTED.  IT IS
INCONCEIVABLE TO ME THAT THE FRAMERS INTENDED TO END CAPITAL PUNISHMENT
BY THE AMENDMENT.  ALTHOUGH SOME PEOPLE HAVE URGED THAT THIS COURT
SHOULD AMEND THE CONSTITUTION BY INTERPRETATION TO KEEP IT ABREAST OF
MODERN IDEAS, I HAVE NEVER BELIEVED THAT LIFETIME JUDGES IN OUR SYSTEM
HAVE ANY SUCH LEGISLATIVE POWER.  SEE HARPER V. VIRGINIA BOARD OF
ELECTIONS, 383 U.S. 663, 670 (1966) (BLACK, J., DISSENTING).     MR.
JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL
CONCUR, DISSENTING IN NO. 204. 

IN MY VIEW THE UNITARY TRIAL WHICH OHIO PROVIDES IN FIRST-DEGREE
MURDER CASES DOES NOT SATISFY THE REQUIREMENTS OF PROCEDURAL DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT.     OHIO MAKES FIRST-DEGREE
MURDER PUNISHABLE BY DEATH "UNLESS THE JURY TRYING THE ACCUSED
RECOMMENDS MERCY, IN WHICH CASE THE PUNISHMENT SHALL BE IMPRISONMENT
FOR LIFE."  OHIO REV. CODE ANN. SEC. 2901.01.  PETITIONER WAS INDICTED
AND TRIED FOR MURDER IN THE FIRST DEGREE FOR THE KILLING OF HIS WIFE. 
HIS PLEAS WERE "NOT GUILTY" AND "NOT GUILTY BY REASON OF INSANITY." 

THE COURT, AFTER A PSYCHIATRIC EXAMINATION, CONCLUDED THAT
PETITIONER WAS SANE AND SET THE CASE FOR TRIAL BEFORE A JURY.  THE
ISSUES OF GUILT, PUNISHMENT, AND INSANITY WERE SIMULTANEOUSLY TRIED AND
SUBMITTED TO THE JURY. 

PETITIONER DID NOT TESTIFY AT THE TRIAL.  BUT A PSYCHIATRIST
TESTIFIED ON HIS BEHALF, OFFERING MEDICAL RECORDS OF HIS CASE FROM TWO
STATE HOSPITALS.  HIS MOTHER TESTIFIED CONCERNING HIS CHILDHOOD,
EDUCATION, AND BACKGROUND. 

ON THE ISSUE OF PUNISHMENT THE JURY WAS CHARGED: 

     "YOU MUST NOT BE INFLUENCED BY ANY CONSIDERATION OF SYMPATHY
OR

  PREJUDICE.  I IS YOUR DUTY TO CAREFULLY WEIGH THE EVIDENCE, TO

  DECIDE ALL DISPUTED QUESTIONS OF FACT, TO APPLY THE INSTRUCTIONS

OF THE COURT TO YOUR FINDINGS AND TO RENDER YOUR VERDICT

ACCORDINGLY.  IN FULFILLING YOUR DUTY, YOUR EFFORTS MUST BE TO

  ARRIVE AT A JUST VERDICT. 

     "CONSIDER ALL THE EVIDENCE AND MAKE YOUR FINDING WITH

  INTELLIGENCE AND IMPARTIALITY, AND WITHOUT BIAS, SYMPATHY, OR

  PREJUDICE, SO THAT THE STATE OF OHIO AND THE DEFENDANT WILL FEEL

  THAT THEIR CASE WAS FAIRLY AND IMPARTIALLY TRIED.  . . ." 

HE WAS FOUND GUILTY OF MURDER IN THE FIRST DEGREE WITHOUT A
RECOMMENDATION OF MERCY AND THE COURT SENTENCED HIM TO DEATH.  THE
SUPREME COURT OF OHIO SUSTAINED THE SINGLE-VERDICT PROCEDURE AND THE
ABSOLUTE DISCRETION OF THE JURY IN THE MATTER OF PUNISHMENT.  18 OHIO
ST.2D 182, 248 N.E.2D 614. 

ON THE ISSUE OF GUILT THE STATE WAS REQUIRED TO PRODUCE EVIDENCE TO
ESTABLISH IT. ON THE ISSUE OF INSANITY THE BURDEN WAS ON PETITIONER TO
PROVE IT BY A PREPONDERANCE OF THE EVIDENCE, STATE V. AUSTIN, 71 OHIO
ST. 317, 73 N.E. 218.  ON THE ISSUE OF MERCY, VIZ., LIFE IMPRISONMENT
RATHER THAN DEATH, PETITIONER UNDER OHIO LAW WAS BANNED FROM OFFERING
ANY SPECIFIC EVIDENCE DIRECTED ONLY TOWARD A CLAIM OF MERCY.  ASHBROOK
V. STATE, 49 OHIO APP. 298, 197 N.E. 214. 

IF A DEFENDANT WISHES TO TESTIFY IN SUPPORT OF THE DEFENSE OF
INSANITY OR IN MITIGATION OF WHAT HE IS CHARGED WITH DOING, HE CAN DO
SO ONLY IF HE SURRENDERS HIS RIGHT TO BE FREE FROM SELF-INCRIMINATION. 
ONCE HE TAKES THE STAND HE CAN BE CROSS-EXAMINED NOT ONLY AS RESPECTS
THE CRIME CHARGED BUT ALSO ON OTHER MISDEEDS.  IN OHIO IMPEACHMENT
COVERS A WIDE RANGE OF SUBJECTS:  PRIOR CONVICTIONS FOR FELONIES AND
STATUTORY MISDEMEANORS, /1/  PENDING INDICTMENTS, /2/  PRIOR
CONVICTIONS IN MILITARY SERVICE, AND DISHONORABLE DISCHARGES.  /3/
ONCE HE TESTIFIES HE CAN BE RECALLED FOR CROSS-EXAMINATION IN THE
STATE'S CASE IN REBUTTAL.  /4/ 

WHILE THE DEFENDANT IN OHIO HAS THE RIGHT OF ALLOCUTION, THAT RIGHT
EVEN IN FIRST-DEGREE MURDER CASES OCCURS ONLY AFTER THE JURY'S VERDICT
HAS BEEN RENDERED.  UNLESS THERE IS PREJUDICIAL ERROR VITIATING THE
CONVICTION OR INSUFFICIENT EVIDENCE /5/  TO CONVICT, THE JURY'S VERDICT
STANDS AND THE JUDGE MUST ENTER THE VERDICT.  ALLOCUTION, THOUGH
MANDATORY, /6/ IS THUS A RITUAL ONLY.  /7/ 

IF THE RIGHT TO BE HEARD WERE TO BE MEANINGFUL, IT WOULD HAVE TO
ACCRUE BEFORE SENTENCING; YET, EXCEPT FOR ALLOCUTION, ANY ATTEMPT ON
THE PART OF THE ACCUSED DURING THE TRIAL TO SAY WHY THE JUDGMENT OF
DEATH SHOULD NOT BE PRONOUNCED AGAINST HIM ENTAILS A SURRENDER OF HIS
RIGHT AGAINST SELF-INCRIMINATION.  IT THEREFORE SEEMS PLAIN THAT THE
SINGLE-VERDICT PROCEDURE IS A BURDEN ON THE EXERCISE OF THE RIGHT TO BE
FREE OF COMPULSION AS RESPECTS SELF-INCRIMINATION.  FOR HE CAN TESTIFY
ON THE ISSUE OF INSANITY OR ON OTHER MATTERS IN EXTENUATION OF THE
CRIME CHARGED ONLY AT THE PRICE OF SURRENDERING THE PROTECTION OF THE
SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH. 

ON THE QUESTION OF INSANITY AND PUNISHMENT THE ACCUSED SHOULD BE
UNDER NO RESTRAINTS WHEN IT COMES TO PUTTING BEFORE THE COURT AND THE
JURY ALL THE RELEVANT FACTS.  YET HE CANNOT HAVE THAT FREEDOM WHERE
THESE ISSUES ARE TIED TO THE QUESTION OF GUILT.  FOR ON THAT ISSUE HE
OFTEN DARE NOT SPEAK LEST HE IN SUBSTANCE BE TRIED NOT FOR THIS
PARTICULAR OFFENSE BUT FOR ALL THE SINS HE EVER COMMITTED. 

PETITIONER ALSO HAD TO SURRENDER MUCH OF HIS RIGHT TO A FAIR HEARING
ON THE ISSUE OF PUNISHMENT TO ASSERT HIS DEFENSE OF INSANITY.  TO
SUPPORT HIS INSANITY PLEA HE HAD TO SUBMIT HIS HOSPITAL RECORDS, BOTH
OF WHICH CONTAINED INFORMATION ABOUT HIS CONVICTIONS AND IMPRISONMENT
FOR PRIOR CRIMES AND ABOUT HIS USE OF DRUGS AS WELL. 

OF COURSE, A DEFENDANT'S CHARACTER WITNESSES CAN BE EXAMINED
RESPECTING THE DEFENDANT'S OTHER CRIMES.  MICHELSON V. UNITED STATES,
335 U.S. 469.  BUT THAT IS AN EFFORT TO WEIGH THE CREDIBILITY OF THE
PROFFERED TESTIMONY AS TO CHARACTER.  "THUS, WHILE THE LAW GIVES
DEFENDANT THE OPTION TO SHOW AS A FACT THAT HIS REPUTATION REFLECTS A
LIFE AND HABIT INCOMPATIBLE WITH COMMISSION OF THE OFFENSE CHARGED, IT
SUBJECTS HIS PROOF TO TESTS OF CREDIBILITY DESIGNED TO PREVENT HIM FROM
PROFITING BY A MERE PARADE OF PARTISANS."  ID., AT 479.  IT IS A FAR
CRY, HOWEVER, TO LET HOSPITAL RECORDS TENDERED ON AN ISSUE OF INSANITY
COLOR A JURY'S JUDGMENT ON THE WHOLLY DIFFERENT ISSUE OF GUILT. 

THE GREATEST COMFORT THE MAJORITY HAS IS THIS COURT'S RECENT
DECISION IN SPENCER V. TEXAS, 385 U.S. 554.  HOLDING THAT A TWO-STAGE
TRIAL IS NOT REQUIRED WHEN A STATE UNDER A HABITUAL-OFFENDER STATUTE
SEEKS TO INTRODUCE ON THE ISSUE OF GUILT IN A UNITARY TRIAL EVIDENCE OF
A DEFENDANT'S PRIOR CONVICTIONS.  YET SPENCER WAS A FIVE-TO-FOUR
DECISION WHICH MEANT IT BARELY PASSED MUSTER AS A CONSTITUTIONAL
PROCEDURE.  THE DISSENT OF MR. CHIEF JUSTICE WARREN, IN WHICH THREE
OTHER JUSTICES JOINED, WILL HAVE, I THINK, ENDURANCE BEYOND THE
MAJORITY VIEW. 

THAT DISSENT, ID., AT 569 ET SEQ., POINTS OUT THE PREJUDICE TO AN
ACCUSED IF, PRIOR TO A FINDING OF GUILT, EARLIER CONVICTIONS ARE
ADMISSIBLE IN EVIDENCE.  THERE IS MOUNTING EVIDENCE SHOWN IN COURT
DECISIONS (ID., AT 585) AND IN MODERN STATE PROCEDURES THAT THAT
PRACTICE DOES NOT COMPORT WITH FAIRNESS IMPLICIT IN DUE PROCESS.  MR.
CHIEF JUSTICE WARREN SAID:  "IN ENGLAND, THE PREJUDICE WHICH RESULTS
FROM PROOF OF PRIOR CRIMES BEFORE A FINDING OF GUILT HAS BEEN
RECOGNIZED FOR MORE THAN A CENTRUY, AND THE RULE HAS BEEN THAT A
FINDING AS TO PRIOR CRIMES IS MADE IN A SEPARATE HEARING AFTER THE
FINDING OF GUILT."  ID., AT 586. 

WE SHOULD NOT SQUARE WITH DUE PROCESS THE PRACTICE WHICH RECEIVES
IMPETUS IN OHIO WHERE REPORTS ON A MAN'S INSANITY CONTAIN REFERENCES TO
HIS CRIMINAL RECORD WHICH MOST ASSUREDLY PREJUDICE HIS TRIAL ON THE
ISSUE OF GUILT.  /8/ 

WE HAVE ALREADY TRAVELED PART OF THE DISTANCE REQUIRED FOR REVERSAL
IN THE PRESENT CASE.  IN JACKSON V. DENNO, 378 U.S. 368, WE HELD THAT
WHETHER ON CONTROVERTED FACTS A CONFESSION WAS VOLUNTARY MUST BE TRIED
BY A STATE IN A SEPARATE PROCEEDING.  WE POINTED OUT THE VICE IN
ALLOWING THE JURY THAT DETERMINES GUILT ALSO TO DETERMINE WHETHER THE
CONFESSION WAS VOLUNTARY.  WE SAID: 

     "IT IS DIFFICULT, IF NOT IMPOSSIBLE, TO PROVE THAT A
CONFESSION

  WHICH A JURY HAS FOUND TO BE INVOLUNTARY HAS NEVERTHELESS

  INFLUENCED THE VERDICT OR THAT ITS FINDING OF VOLUNTARINESS, IF

  THIS IS THE COURSE IT TOOK, WAS AFFECTED BY THE OTHER EVIDENCE

  SHOWING THE CONFESSION WAS TRUE.  BUT THENEW YORK PROCEDURE POSES

  SUBSTANTIAL THREATS TO A DEFENDANT'S CONSTITUTIONAL RIGHTS TO

  HAVE AN INVOLUNTARY CONFESSION ENTIRELY DISREGARDED AND TO HAVE

  THE COERCION ISSUE FAIRLY AND RELIABLY DETERMINED."  ID., AT

  389. 

YET THE RISK OF PREJUDICE IN JACKSON V. DENNO SEEMS MINOR COMPARED
WITH THE RISK OF PREJUDICE IN A UNITARY TRIAL WHERE THE ISSUES OF
GUILT, INSANITY, AND PUNISHMENT ARE COMBINED, SUBMITTED TO ONE JURY
WITH EVIDENCE OF PRIOR CONVICTIONS COMING IN UNDER COVER OF HOSPITAL
RECORDS PERTINENT TO INSANITY, AND CERTAINLY LIKELY TO BE PREJUDICIAL
ON THE ISSUE OF GUILT.  I SEE NO WAY TO MAKE THIS UNITARY TRIAL FAIR IN
THE SENSE OF PROCEDURAL DUE PROCESS UNLESS THE ISSUE OF INSANITY IS
SEGREGATED AND TRIED TO A SEPARATE JURY. 

AS NOTED, EVIDENCE AS TO WHETHER THE JURY SHOULD SHOW MERCY TO HIM
IS EXCLUDED FROM CONSIDERATION, AND THE JURY IS ADMONISHED NOT TO SHOW
ANY "SYMPATHY" TO THE ACCUSED. 

UNDER OHIO LAW THE DETERMINATION OF WHETHER TO GRANT OR WITHHOLD
MERCY IS EXCLUSIVELY FOR THE JURY AND CANNOT BE REVIEWED BY EITHER THE
TRIAL COURT /9/  OR AN APPELLATE COURT.  /10/  THE FIRST TIME THAT
SPECIFIC MENTION OF MERCY TO THE JURY IS PERMISSIBLE IS DURING CLOSING
ARGUMENT WHERE THE DEFENDANT IS PERMITTED "TO ARGUE TO THE JURY THE
DESIRABILITY, ADVISABILITY OR WISDOM OF RECOMMENDATION ON MERCY IN THE
INSTANT CASE (BEYOND THE INSTRUCTION TO MAKE FINDINGS WITHOUT BIAS,
SYMPATHY, OR PREJUDICE), THE OHIO COURTS HAVE APPROVED INSTRUCTIONS "TO
CONSIDER AND DETERMINE WHETHER OR NOT IN VIEW OF ALL THE CIRCUMSTANCES
AND FACTS LEADING UP TO, AND ATTENDING THE ALLEGED HOMICIDE AS
DISCLOSED BY THE EVIDENCE, YOU SHOULD OR SHOULD NOT MAKE SUCH
RECOMMENDATIONS (OF MERCY)."  HOWELL V. STATE, 102 OHIO ST. 411, 513,
131 N.E. 706-707.  THIS INSTRUCTION MEANS THAT WHILE THE JURY MAY NOT
CONSIDER GENERAL SOCIOLOGICAL OR ENVIRONMENTAL DATA, IT MAY CONSIDER
ANY SUCH FACTORS WHICH HAVE SPECIFICALLY BEEN ADMITTED INTO EVIDENCE IN
THE CASE FOR OTHER PURPOSES.  STATE V. CALDWELL, 135 OHIO ST. 424, 21
N.E.2D 343.  /12/ 

ASHBROOK V. STATE, SUPRA, HOLDS THAT EVIDENCE "DIRECTED SPECIFICALLY
TOWARD A CLAIM FOR MERCY" CANNOT BE INTRODUCED.  YET HOWELL, CALDWELL,
AND ASHBROOK SHOW THAT ONCE EVIDENCE IS ADMITTED FOR OTHER PURPOSES THE
JURY IS FREE TO CONSIDER IT FOR ANY PURPOSE.  IN CALDWELL THE OBJECTION
OF THE COURT WAS TO GOING OUTSIDE THE RECORD FOR EVIDENCE IN
CONSIDERING SOCIOLOGICAL AND ENVIRONMENTAL MATTERS. 

THIS BACKGROUND EVIDENCE OFTEN COMES IN THROUGH CHARACTER
WITNESSES.  IN ONE CASE A DEFENDANT PRESENTED 12 WITNESSES WHO
TESTIFIED TO HIS REPUTATION AS A PEACEFUL AND LAW-ABIDING CITIZEN OF
GOOD CHARACTER.  /13/  AND EVEN IN THE INSTANT CASE PETITIONER'S MOTHER
TESTIFIED CONCERNING HIS CHILDHOOD, EDUCATION, AND BACKGROUND. 

BUT THE RIGHT OF ALLOCUTION IS AT BEST PARTIAL AND INCOMPLETE WHEN
THE ACCUSED HIMSELF IS BARRED FROM TESTIFYING ON THE QUESTION OF
SENTENCING, AND WHEN THE ONLY EVIDENCE ADMISSIBLE COMES FROM OTHER
PEOPLE OR IS INTRODUCED FOR DIFFERENCE AND MORE LIMITED PURPOSES. 

THE LINE BETWEEN THE LEGISLATIVE FUNCTION AND THE JUDICIAL FUNCTION
IS CLEAR.  THE STATE CAN MAKE CRIMINAL SUCH CONDUCT AS IT PLEASES, SAVE
AS IT IS LIMITED BY THE CONSTITUTION ITSELF, AS FOR EXAMPLE BY THE BAN
OF EX POST FACTO LAWS IN ART. I, SEC. 10, OR BY THE FOURTEENTH
AMENDMENT, AS WHERE RELIGIOUS EXERCISES OR FREEDOM OF SPEECH OR OF THE
PRESS IS INVOLVED.  IT CAN PUNISH SUCH CONDUCT BY SUCH PENALTIES AS IT
CHOOSES, SAVE AS ITS SANCTIONS RUN AFOUL OF THE BAN OF ART. I, SEC. 10,
AGAINST BILLS OF ATTAINDER OR THE PROHIBITION AGAINST CRUEL AND UNUSUAL
PUNISHMENTS CONTAINED IN THE EIGHTH AMENDMENT.  THE COURT IS NOT
CONCERNED WITH THE WISDOM OF STATE POLICIES, ONLY WITH THE
CONSTITUTIONAL BARRIERS TO STATE ACTION.  PROCEDURAL DUE PROCESS /14/
IS ONE OF THOSE BARRIERS, AS REVEALED OVER AND OVER AGAIN IN OUR
DECISIONS.  SOME OF ITS REQUIREMENTS ARE EXPLICIT IN THE BILL OF RIGHTS
- A SPEEDY TRIAL, KLOPFER V. NORTH CAROLINA, 386 U.S. 213; A TRIAL BY
JURY, DUNCAN V. LOUISIANA, 391 U.S. 145; THE RIGHT TO COUNSEL, GIDEON
V. WAINWRIGHT, 372 U.S. 335; THE RIGHT TO CONFRONTATION, POINTER V.
TEXAS, 380 U.S. 400-- ALL AS MADE APPLICABLE TO THE STATES BY REASON OF
THE FOURTEENTH AMENDMENT. 

OTHER REQUIREMENTS OF PROCEDURAL DUE PROCESS ARE ONLY IMPLIED, NOT
EXPRESSED; THEIR INCLUSION OR EXCLUSION TURNS ON THE BASIC QUESTION OF
FAIRNESS.  IN THAT CATEGORY ARE NOTICE AND THE RIGHT TO BE HEARD. 
SCHROEDER V. CITY OF NEW YORK, 371 U.S. 208; SNIADACH V. FAMILY FINANCE
CORP., 395 U.S. 337.  IT IS A PHASE OF THAT RIGHT TO BE HEARD THAT
LOOMS LARGE HERE. 

CRAMPTON HAD THE CONSTITUTIONAL RIGHT AS A MATTER OF PROCEDURAL DUE
PROCESS TO BE HEARD ON THE ISSUE OF PUNISHMENT.  WE EMPHASIZED IN
TOWNSEND V. BURKE, 334 U.S. 736, 741, HOW THE RIGHT TO BE HEARD THROUGH
COUNSEL MIGHT BE CRUCIAL TO AVOID SENTENCING ON A FOUNDATION
"EXTENSIVELY AND MATERIALLY FALSE."  BUT THE RIGHT TO BE HEARD IS
BROADER THAN THAT; IT INCLUDES THE RIGHT TO SPEAK FOR ONE'S SELF.  AS
WAS SAID IN GREEN V. UNITED STATES, 365 U.S. 301, 304 (OPINION OF
FRANKFURTER, J.): 

"WE ARE NOT UNMINDFUL OF THE RELEVANT MAJOR CHANGES THAT HAVE
EVOLVED IN CRIMINAL PROCEDURE SINCE THE SEVENTEENTH CENTURY-- THE SHARP
DECREASE IN THE NUMBER OF CRIMES WHICH WERE PUNISHABLE BY DEATH, THE
RIGHT OF THE DEFENDANT TO TESTIFY ON HIS OWN BEHALF, AND THE RIGHT TO
COUNSEL.  BUT WE SEE NO REASON WHY A PROCEDURAL RULE SHOULD BE LIMITED
TO THE CIRCUMSTANCES UNDER WHICH IT AROSE IF REASONS FOR THE RIGHT IT
PROTECTS REMAIN.  NONE OF THESE MODERN INNOVATIONS LESSENS THE NEED FOR
THE DEFENDANT, PERSONALLY, TO HAVE THE OPPORTUNITY TO PRESENT TO THE
COURT HIS PLEA IN MITIGATION.  THE MOST PERSUASIVE COUNSEL MAY NOT BE
ABLE TO SPEAK FOR A DEFENDANT AS THE DEFENDANT MIGHT, WITH HALTING
ELOQUENCE, SPEAK FOR HIMSELF."     THE RIGHT TO BE HEARD, EXPLICIT IN
RULE 32(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, MAY AT TIMES BE
DENIED, ABSENT A SHOWING OF "AGGRAVATING CIRCUMSTANCES" OR OF A CLAIM
THAT THE DEFENDANT WOULD HAVE ANYTHING TO SAY.  SEE HILL V. UNITED
STATES, 368 U.S. 424.  BUT WHERE THE OPPORTUNITY TO BE HEARD ON THE
SENTENCE IS DENIED BOTH COUNSEL AND THE DEFENDANT, THE DENIAL REACHES
CONSTITUTIONAL PROPORTIONS.  SEE UNITED STATES V. JOHNSON, 315 F.2D
714, 717. 

WHETHER THE VOICE SPEAKING FOR THE DEFENDANT BE COUNSEL'S VOICE OR
THE DEFENDANT'S, THE RIGHT TO BE HEARD IS OFTEN VITAL AT THE SENTENCING
STAGE BEFORE THE LAW DECIDES THE PUNISHMENT OF THE PERSON FOUND
GUILTY.  MEMPA V. RHAY, 389 U.S. 128, 135.  THE HEARING, WHETHER ON
GUILT OR PUNISHMENT, IS GOVERNED BY THE REQUIREMENTS OF DUE PROCESS. 
WE SAID IN SPECHT V. PATTERSON, 386 U.S. 605, 610: 

"DUE PROCESS, IN OTHER WORDS, REQUIRES THAT HE BE PRESENT WITH
COUNSEL, HAVE AN OPPORTUNITY TO BE HEARD, BE CONFRONTED WITH WITNESSES
AGAINST HIM, HAVE THE RIGHT TO CROSS-EXAMINE, AND TO OFFER EVIDENCE OF
HIS OWN." 

IF ONE INSISTS, AS IN HILL, THAT THERE BE "AGGRAVATING
CIRCUMSTANCES" TO RAISE THIS RIGHT TO BE HEARD TO A CONSTITUTIONAL
LEVEL, ALL MUST AGREE THAT NO ONE CAN EVER SHOW MORE "AGGRAVATING"
CIRCUMSTANCES THAN THE FACT THAT HE STANDS ON THE VERGE OF RECEIVING
THE DEATH SENTENCE. 

AT LEAST THEN, THE RIGHT OF ALLOCUTION BECOMES A CONSTITUTIONAL
RIGHT-- THE RIGHT TO SPEAK TO THE ISSUES TOUCHING ON THE SENTENCING
BEFORE ONE'S FATE IS SEALED.  YET WHERE THE TRIAL IS A UNITARY ONE, THE
RIGHT OF ALLOCUTION EVEN IN A CAPITAL CASE IS THEORETICAL, NOT REAL, AS
THE OHIO PROCEDURE DEMONSTRATES.  PETITIONER ALSO HAD THE PROTECTION OF
THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT.  TO OBTAIN THE
BENEFIT OF THE FORMER HE WOULD HAVE TO SURRENDER THE LATTER.  MR.
JUSTICE HARLAN, SPEAKING FOR THE COURT, SAID IN SIMMONS V. UNITED
STATES, 390 U.S. 377, 394:  "(WE FIND IT INTOLERABLE THAT ONE
CONSTITUTIONAL RIGHT SHOULD HAVE TO BE SURRENDERED IN ORDER TO ASSERT
ANOTHER." 

WE MADE THAT STATEMENT IN THE CONTEXT OF A CASE WHERE AN ACCUSED
TESTIFIED ON A MOTION TO SUPPRESS EVIDENCE IN ORDER TO PROTECT HIS
FOURTH AMENDMENT RIGHTS BUT LATER DISCOVERED THAT THE TESTIMONY WOULD
BE USED BY THE PROSECUTION AS "A STRONG PIECE OF EVIDENCE AGAINST
HIM."  ID., AT 391.  WE HELD THAT THE PROTECTION OF HIS FOURTH
AMENDMENT RIGHTS DID NOT WARRANT SURRENDER OR DILUTION OF HIS FIFTH
AMENDMENT RIGHTS.  MR. JUSTICE STEWART SPEAKING FOR THE COURT SAID:
"THE INEVITABLE EFFECT OF ANY SUCH PROVISION IS, OF COURSE, TO
DISCOURAGE ASSERTION OF THE FIFTH AMENDMENT RIGHT NOT TO PLEAD GUILTY
AND TO DETER EXERCISE OF THE SIXTH AMENDMENT RIGHT TO DEMAND A JURY
TRIAL.  IF THE PROVISION HAD NO OTHER PURPOSE OR EFFECT THAN TO CHILL
THE ASSERTION OF CONSTITUTIONAL RIGHTS BY PENALIZING THOSE WHO CHOOSE
TO EXERCISE THEM, THEN IT WOULD BE PATENTLY UNCONSTITUTIONAL."  ID., AT
581. 

THAT "UNDENIABLE TENSION" BETWEEN TWO CONSTITUTIONAL RIGHTS, WHICH
LED TO THAT RESULT IN JACKSON AND TO A REVERSAL IN SIMMONS, SHOULD LEAD
TO A REVERSAL HERE.  FOR THE UNITARY TRIAL OR SINGLE-VERDICT TRIAL IN
PRACTICAL EFFECT ALLOWS THE RIGHT TO BE HEARD ON THE ISSUE OF
PUNISHMENT ONLY BY SURRENDERING THE PROTECTION OF THE SELF
INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT. 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT INDICATED IN UNITED
STATES V. BRANKER, 418 F.2D 378, 380, THAT SIMMONS PREVENTED AN
ACCUSED'S TESTIMONY AT A HEARING ON HIS APPLICATION TO PROCEED IN FORMA
PAUPERIS AND FOR APPOINTMENT OF COUNSEL TO BE USED BY THE PROSECUTION
AS PART OF ITS DIRECT CASE AGAINST HIM: 

"THE DEFENDANT SHOULD ENJOY HIS CONSTITUTIONAL RIGHTS TO COUNSEL AND
TO APPEAL AND THE MEANS OF SUPPORTING HIS ASSERTION OF THESE RIGHTS BY
HIS OWN TESTIMONY WITHOUT RUNNING THE RISK THAT THEREBY HE MAY BE
INCRIMINATING HIMSELF WITH RESPECT TO THE CHARGES PENDING AGAINST
HIM." 

THE SAME RESULT WAS REACHED BY THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT IN MELSON V. SARD, 131 U.S.APP.D.C. 102, 402 F.2D
653, WHICH HELD THAT A PAROLEE WHO TESTIFIES ON A HEARING IN REVOCATION
OF HIS PAROLE MAY GIVE TESTIMONY THAT MAY NOT BE USED IN A SUBSEQUENT
CRIMINAL TRIAL IN VIOLATION OF THE SELF-INCRIMINATION CLAUSE OF THE
FIFTH AMENDMENT: 

"IF A PAROLEE IS NOT GIVEN THE FULL AND FREE ABILITY TO TESTIFY IN
HIS OWN BEHALF AND PRESENT HIS CASE AGAINST REVOCATION, HIS RIGHT TO A
HEARING BEFORE THE BOARD WOULD BE MEANINGLESS.  FURTHERMORE, HIS FIFTH
AMENDMENT RIGHTS MUST BE CONDITIONED 'BY THE EXACTION OF A PRICE.'" 
ID., AT 104, 402 F.2D, AT 655. 

THE WORDS "BY THE EXACTION OF A PRICE" ARE FROM GARRITY V. NEW
JERSEY, 385 U.S. 493, 500, WHERE WE HELD THAT THE THREAT OF DISCHARGE
OF A POLICEMAN CANNOT BE USED TO SECURE INCRIMINATORY EVIDENCE AGAINST
HIM.  WE SAID: 

     "THERE ARE RIGHTS OF CONSTITUTIONAL STATURE WHOSE EXERCISE A

STATE MAY NOT CONDITION BY THE EXACTION OF A PRICE.  ENGAGING IN

  INTERSTATE COMMERCE IS ONE.  . . . RESORT TO THE FEDERAL COURTS
IN

  DIVERSITY OF CITIZENSHIP CASES IS ANOTHER.  . . . ASSERTION OF A

  FIRST AMENDMENT RIGHT IS STILL ANOTHER.  . . . THE IMPOSITION OF
A

  BURDEN ON THE EXERCISE OF A TWENTY-FOURTH AMENDMENT RIGHT IS ALSO

  BANNED.  . . . WE NOW HOLD THE PROTECTION OF THE INDIVIDUAL UNDER

  THE FOURTEENTH AMENDMENT AGAINST COERCED STATEMENTS PROHIBITS USE

  IN SUBSEQUENT CRIMINAL PROCEEDINGS OF STATEMENTS OBTAINED UNDER

  THREAT OF REMOVAL FROM OFFICE, AND THAT IT EXTENDS TO ALL,

  WHETHER THEY ARE POLICEMEN OR OTHER MEMBERS OF OUR BODY

  POLITIC."  IBID. 

MELSON V. SARD INVOLVED PROTECTION OF A STATUTORY RIGHT TO A
HEARING.  GARRITY INVOLVED ONLY EMPLOYMENT RIGHTS.  IN THE SAME
CATEGORY IS THOMAS V. UNITED STATES, 368 F.2D 941, WHERE THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT HELD A CONVICTED MAN MAY NOT RECEIVE A
HARSHER PENALTY THAN HE WOULD HAVE RECEIVED IF HE HAD WAIVED HIS FIFTH
AMENDMENT RIGHT.  AND THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT EXPRESSED THE SAME VIEW IN SCOTT V. UNITED STATES, 135
U.S.APP.D.C. 377, 419 F.2D 264. 

IF EXAVTION OF A CONSTITUTIONAL RIGHT MAY NOT BE MADE FOR ASSERTION
OF A STATUTORY RIGHT (SUCH AS THE RIGHT TO A HEARING ON PAROLE
REVOCATION OR THE RIGHT TO APPEAL), IT FOLLOWS A FORTIORI THAT THE
CONSTITUTIONAL RIGHT TO BE FREE FROM THE COMPULSION OF SELF
INCRIMINATION MAY NOT BE EXACTED AS A CONDITION TO THE CONSTITUTIONAL
RIGHT TO BE HEARD ON THE ISSUE OF PUNISHMENT. 

THE TRUTH IS, AS MR. JUSTICE BRENNAN POINTS OUT IN HIS DISSENT IN
THESE CASES, THAT THE WOODEN POSITION OF THE COURT, REFLECTED IN
TODAY'S DECISION, CANNOT BE RECONCILED WITH THE EVOLVING GLOSS OF
CIVILIZED STANDARDS WHICH THIS PCOURT, LONG BEFORE THE TIME OF THOSE
WHO NOW SIT HERE, HAS BEEN READING INTO THE PROTECTIVE PROCEDURAL DUE
PROCESS SAFEGUARDS OF THE BILL OF RIGHTS.  IT IS AS THOUGH A DAM HAD
SUDDENLY BEEN PLACED ACROSS THE STREAM OF THE LAW ON PROCEDURAL DUE
PROCESS, A STREAM WHICH HAS GROWN LARGER WITH THE PASSING YEARS. 

THE COURT HAS HISTORY ON ITS SIDE-- BUT HISTORY ALONE.  THOUGH
NATIONS HAVE BEEN KILLING MEN FOR CENTURIES, FELONY CRIMES INCREASE. 
THE VESTIGES OF LAW ENSHRINED TODAY HAVE ROOTS IN BARBARIC PROCEDURES. 
BARBARIC PROCEDURES SUCH ORDEAL BY BATTLE THAT BECOME IMBEDDED IN THE
LAW WERE DIFFICULT TO DISLODGE.  /15/  THOUGH TORTURE WAS USED TO EXACT
CONFESSIONS, FELONIES MOUNTED.  ONCE IT WAS THOUGHT THAT "SANITY" WAS
DETERMINED BY ASCERTAINING WHETHER A PERSON KNEW THE DIFFERENCE BETWEEN
"RIGHT" AND "WRONG."  ONCE IT WAS A CAPITAL OFFENSE TO STEAL FROM THE
PERSON SOMETHING "ABOVE THE VALUE OF A SHILLING."  /16/ 

INSIGHT AND UNDERSTANDING HAVE INCREASED WITH THE YEARS, THOUGH THE
SPRINGS OF CRIME REMAIN IN LARGE PART UNKNOWN.  BUT OUR OWN FEDERAL
BUREAU OF INVESTIGATION TEACHES THAT BRAINS, NOT MUSCLE, SOLVE CRIMES. 
COERCED CONFESSIONS ARE NOT ONLY OFFENSIVE TO CIVILIZED STANDARDS BUT
NOT RESPONSIVE TO THE MODERN NEEDS OF CRIMINAL INVESTIGATION. 
PSYCHIATRY HAS SHOWN THAT BLIND FAITH IN RIGHTNESS AND WRONGNESS IS NO
RELIABLE MEASURE OF HUMAN RESPONSIBILITY.  THE CONVERGENCE OF NEW
TECHNOLOGY FOR CRIMINAL INVESTIGATION AND OF NEW INSIGHT INTO MENTAL
DISORDERS HAS MADE MANY ANCIENT LEGAL PROCEDURES SEEM UTTERLY UNFAIR. 

WHO TODAY WOULD SAY IT WAS NOT "CRUEL AND UNUSUAL PUNISHMENT" WITHIN
THE MEANING OF THE EIGHTH AMENDMENT TO IMPOSE THE DEATH SENTENCE ON A
MAN WHO STOLE A LOAF OF BREAD, OR IN MODERN PARLANCE, A SHEET OF FOOD
STAMPS?  WHO TODAY WOULD SAY THAT TRIAL BY BATTLE SATISFIES THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS? 

WE NEED NOT READ PROCEDURAL DUE PROCESS AS DESIGNED TO SATISFY MAN'S
DEEP-SEATED SADISTIC INSTINCTS.  WE NEED NOT IN DEFERENCE TO THOSE
SADISTIC INSTINCTS SAY WE ARE BOUND BY HISTORY FROM DEFNINING
PROCEDURAL DUE PROCESS SO AS TO DENY MEN FAIR TRIALS.  YET THAT IS WHAT
THE COURT DOES TODAY.  THE WHOLE EVOLUTION OF PROCEDURAL DUE PROCESS
HAS BEEN IN THE DIRECTION OF INSISTING ON FAIR PROCEDURES.  AS THE
COURT SAID IN HERBERT V. LOUISIANA, 272 U.S. 312, 316-317: 

     "(STATE ACTION, WHETHER THROUGH ONE AGENCY OR ANOTHER, SHALL
BE

  CONSISTENT WITH THE FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE

  WHICH LIE AT THE BASE OF ALL OUR CIVIL AND POLITICAL INSTITUTIONS

  AND NOT INFREQUENTLY ARE DESIGNATED AS 'LAW OF THE LAND.'  THOSE

  PRINCIPLES ARE APPLICABLE ALIKE IN ALL THE STATES AND DO NOT

  DEPEND UPON OR VARY WITH LOCAL LEGISLATION." 

ONE BASIC APPLICATION OF THAT TEST WAS MADE IN MOORE V. DEMPSEY, 261
U.S. 86, 91: 

     "(IF THE CASE IS THAT THE WHOLE PROCEEDING IS A MASK-- THAT

  COUNSEL, JURY AND JUDGE WERE SWEPT TO THE FATAL END BY AN

  IRRESISTIBLE WAVE OF PUBLIC PASSION, AND THAT THE STATE COURTS

  FAILED TO CORRECT THE WRONG, NEITHER PERFECTION IN THE MACHINERY

  FOR CORRECTION NOR THE POSSIBILITY THAT THE TRIAL COURT AND

COUNSEL SAW NO OTHER WAY OF AVOIDING AN IMMEDIATE OUTBREAK OF THE

  MOB CAN PREVENT THIS COURT FROM SECURING TO THE PETITIONERS THEIR

  CONSTITUTIONAL RIGHTS." 

TO ALLOW A DEFENDANT IN A STATE TRIAL TO BE CONVICTED BY CONFESSIONS
"EXTORTED BY OFFICERS OF THE STATE BY BRUTALITY AND VIOLENCE" WAS SAID
BY MR. CHIEF JUSTICE HUGHES TO BE "REVOLTING TO THE SENSE OF JUSTICE"
AND "A CLEAR DENIAL OF DUE PROCESS."  BROWN V. MISSISSIPPI, 297 U.S.
278, 286. 

IN 1884 THE COURT IN HURTADO V. CALIFORNIA, 110 U.S. 516, 529, SAID
THAT DUE PROCESS WAS NOT FROZEN IN CONTENT AS OF ONE POINT OF TIME:
"(TO HOLD THAT SUCH A CHARACTERISTIC IS ESSENTIAL TO DUE PROCESS OF
LAW, WOULD BE TO DENY EVERY QUALITY OF THE LAW BUT ITS AGE, AND TO
RENDER IT INCAPABLE OF PROGRESS OR IMPROVEMENT.  IT WOULD BE TO STAMP
UPON OUR JURISPRUDENCE THE UNCHANGEABLENESS ATTRIBUTED TO THE LAWS OF
THE MEDES AND PERSIANS." 

THE COURT WENT ON TO POINT OUT THAT THOUGH DUE PROCESS HAS IT ROOTS
IN MAGNA CARTA, THE LATTER CONTAINED WORDS THAT CHANGED WITH MEANING AS
THE CENTURIES PASSED.  IBID.  THE COURT NOTED THAT "(THIS FLEXIBILITY
AND CAPACITY FOR GROWTH AND ADAPTATION IS THE PECULIAR BOAST AND
EXCELLENCE OF THE COMMON LAW."  ID., AT 530.  AND IT WENT ON TO SAY
THAT THE GENERALITIES OF OUR CONSTITUTION SHOULD BE TREATED IN THE SAME
WAY: 

     "THE CONSTITUTION OF THE UNITED STATES WAS ORDAINED, IT IS

  TRUE, BY DESCENDANTS OF ENGLISHMEN, WHO INHERITED THE TRADITIONS

  OF ENGLISH LAW AND HISTORY; BUT IT WAS MADE FOR AN UNDEFINED AND

  EXPANDING FUTURE, AND FOR A PEOPLE GATHERED AND TO BE GATHERED

  FROM MANY NATIONS AND OF MANY TONGUES.  . . . THERE IS NOTHING IN

  MAGNA CHARTA, RIGHTLY CONSTRUED AS A BROAD CHARTER OF PUBLIC

RIGHT AND LAW, WHICH OUGHT TO EXCLUDE THE BEST IDEAS OF ALL

  SYSTEMS AND OF EVERY AGE; AND AS IT WAS THE CHARACTERISTIC

  PRINCIPLE OF THE COMMON LAW TO DRAW ITS INSPIRATION FROM EVERY

  FOUNTAIN OF JUSTICE, WE ARE NOT TO ASSUME THAT THE SOURCES OF ITS

  SUPPLY HAVE BEEN EXHAUSTED.  ON THE CONTRARY, WE SHOULD EXPECT

  THAT THE NEW AND VARIOUS EXPERIENCES OF OUR OWN SITUATION AND

  SYSTEM WILL MOULD AND SHAPE IT INTO NEW AND NOT LESS USEFUL

  FORMS."  ID., AT 530-531. 

THE COURT POINTED OUT THAT IN ENGLAND MAGNA CARTA SERVED MERELY AS A
RESTRAINT ON THE EXECUTIVE AND AS A GUIDE TO THE HOUSE OF COMMONS, THE
KEEPER OF THE CONSTITUTION.  IN THIS NATION, HOWEVER, THE CONSTITUTION
SERVES A DIFFERENT FUNCTION. 

    "IT NECESSARILY HAPPENED, THEREFORE, THAT AS THESE BROAD AND

  GENERAL MAXIMS OF LIBERTY AND JUSTICE HELD IN OUR SYSTEM A

  DIFFERENT PLACE AND PERFORMED A DIFFERENT FUNCTION FROM THEIR

  POSITION AND OFFICE IN ENGLISH CONSTITUTIONAL HISTORY AND LAW,

  THEY WOULD RECEIVE AND JUSTIFY A CORRESPONDING AND MORE

  COMPREHENSIVE INTERPRETATION.  APPLIED IN ENGLAND ONLY AS GUARDS

  AGAINST EXECUTIVE USURPATION AND TYRANNY, HERE THEY HAVE BECOME

  BULWARKS ALSO AGAINST ARBITRARY LEGISLATION; BUT, IN THAT

  APPLICATION, AS IT WOULD BE INCONGRUOUS TO MEASURE AND RESTRICT

  THEM BY THE ANCIENT CUSTOMARY ENGLISH LAW, THEY MUST BE HELD TO

GUARANTEE NOT PARTICULAR FORMS OF PROCEDURE, BUT THE VERY

SUBSTANCE OF INDIVIDUAL RIGHTS TO LIFE, LIBERTY, AND PROPERTY." 

  ID., AT 532. 

IN MORE RECENT TIMES THE ISSUE WAS FORCEFULLY STATED BY MR. JUSTICE
BLACK IN CHAMBERS V. FLORIDA, 309 U.S. 227, 236-237: 

"TYRANNICAL GOVERNMENTS HAD IMMEMORIALLY UTILIZED DICTATORIAL
CRIMINAL PROCEDURE AND PUNISHMENT TO MAKE SCAPEGOATS OF THE WEAK, OR OF
HELPLESS POLITICAL, RELIGIOUS, OR RACIAL MINORITIES AND THOSE WHO
DIFFERED, WHO WOULD NOT CONFORM AND WHO RESISTED TYRANNY.  . . . (A)
LIBERTY LOVING PEOPLE WON THE PRINCIPLE THAT CRIMINAL PUNISHMENTS COULD
NOT BE INFLICTED SAVE FOR THAT WHICH PROPER LEGISLATIVE ACTION HAD
ALREADY BY 'THE LAW OF THE LAND'  FORBIDDEN WHEN DONE.  BUT EVEN MORE
WAS NEEDED.  FROM THE POPULAR HATRED AND ABHORRENCE OF ILLEGAL
CONFINEMENT, TORTURE AND EXTORTION OF CONFESSIONS OF VILATIONS OF THE
'LAW OF THE LAND' EVOLVED THE FUNDAMENTAL IDEA THAT NO MAN'S LIFE,
LIBERTY OR PROPERTY BE FORFEITED AS CRIMINAL PUNISHMENT FOR VIOLATION
OF THAT LAW UNTIL THERE HAD BEEN A CHARGE FAIRLY MADE AND FAIRLY TRIED
IN A PUBLIC TRIBUNAL FREE OF PREJUDICE, PASSION, EXCITEMENT, AND
TYRANNICAL POWER.  THUS, AS ASSURANCE AGAINST ANCIENT EVILS, OUR
COUNTRY, IN ORDER TO PRESERVE 'THE BLESSINGS OF LIBERTY,' WROTE INTO
ITS BASIC LAW THE REQUIREMENT, AMONG OTHERS, THAT THE FORFEITURE OF THE
LIVES, LIBERTIES OR PROPERTY OF PEOPLE ACCUSED OF CRIME CAN ONLY FOLLOW
IF PROCEDURAL SAFEGUARDS OF DUE PROCESS HAVE BEEN OBEYED."     THAT IS
ALL THAT IS INVOLVED IN THIS CASE.  IT IS A MYSTERY HOW IN THIS DAY AND
AGE A UNITARY TRIAL THAT REQUIRES AN ACCUSED TO GIVE UP ONE
CONSTITUTIONAL GUARANTEE TO SAVE ANOTHER CONSTITUTIONAL GUARANTEE CAN
BE BROUGHT WITHIN THE RUBRIC OF PROCEDURAL DUE PROCESS.  IT CAN BE DONE
ONLY BY A TOUR DE FORCE BY A MAJORITY THAT STOPS THE GROWTH AND
EVOLUTION OF PROCEDURAL DUE PROCESS AT A WHOLLY ARBITRARY LINE OR
HARKENS TO THE PASSIONS OF MEN.  WHAT A GREAT REGRESSION IT IS WHEN THE
END RESULT IS TO APPROVE A PROCEDURE THAT MAKES THE KILLING OF PEOPLE
CHARGED WITH CRIME TURN ON THE WHIM OR CAPRICE OF ONE MAN OF 12. 

BY STANDARDS OF A FAIR TRIAL, THE RESOLUTION OF THE QUESTION OF
PUNISHMENT REQUIRES RULES AND PROCEDURES DIFFERENT FROM THOSE
PERTAINING TO GUILT.  MR. JUSTICE BUTLER, SPEAKING FOR THE COURT IN
PENNSYLVANIA V. ASHE, 302 U.S. 51, 55, SAID: 

"FOR THE DETERMINATION OF SENTENCES, JUSTICES GENERALLY REQUIRES
CONSIDERATION OF MORE THAN THE PARTICULAR ACTS BY WHICH THE CRIME WAS
COMMITTED AND THAT THERE BE TAKEN INTO ACCOUNT THE CIRCUMSTANCES OF THE
OFFENSE TOGETHER WITH THE CHARACTER AND PROPENSITIES OF THE OFFENDER. 
HIS PAST MAY BE TAKEN TO INDICATE HIS PRESENT PURPOSES AND TENDENCIES
AND SIGNIFICANTLY TO SUGGEST THE PERIOD OF RESTRAINT AND THE KIND OF
DISCIPLINE THAT OUGHT TO BE IMPOSED UPON HIM." 

JUSTICE /17/  -- IN THE SENSE OF PROCEDURAL DUE PROCESS-- IS DENIED
WHERE A STATE MAKES INADMISSIBLE EVIDENCE DESIGNED TO EDUCATE THE JURY
ON THE CHARACTER AND PROPENSITIES OF THE ACCUSED.  OHIO DOES JUST
THAT. 

WE NOTED IN WILLIAMS V. NEW YORK, 337 U.S. 241, 249-252, THAT THE
STATES HAVE LEEWAY IN MAKING AVAILABLE TO JUDGES PROBATION REPORTS "TO
GUIDE THEM IN THE INTELLIGENT IMPOSITION OF SENTENCES" WITHOUT
SUBMITTING THOSE REPORTS TO OPEN COURT TESTIMONY WITH CROSS
EXAMINATION.  WE SAID, "THE DUE PROCESS CLAUSE SHOULD NOT BE TREATED AS
A DEVICE FOR FREEZING THE EVIDENTIAL PROCEDURE OF SENTENCING IN THE
MOLD OF TRIAL PROCEDURE."  ID., AT 251.  BUT SO FAR AS I CAN ASCERTAIN
WE NEVER HAVE INTIMATED THAT A STATE CAN, CONSISTENTLY WITH PROCEDURAL
DUE PROCESS, CLOSE THE DOOR TO EVIDENCE RELEVANT TO THE "INTELLIGENT
IMPOSITION OF SENTENCES" EITHER BY JUDGES OR BY JURIES.  CF. SPECHT V.
PATTERSON, SUPRA, AT 608-609. 

IT IS INDEED TOO LATE TO SAY THAT, ABSENT A CONSTITUTIONAL
AMENDMENT, PROCEDURAL DUE PROCESS HAS NO APPLICABILITY TO THE
DETERMINATION OF THE SENTENCE WHICH IS IMPOSED.  IN TOWNSEND V. BURKE,
SUPRA, AT 741, WE HELD A STATE SENTENCE IMPOSED "ON THE BASIS OF
ASSUMPTIONS" CONCERNING THE DEFENDANT'S CRIMINAL RECORD "WHICH WERE
MATERIALLY UNTRUE" WAS "INCONSISTENT WITH DUE PROCESS OF LAW" WHETHER
THE RESULT WAS CUASED BY "CARELESSNESS OR DESIGN."  A FORTIORI IT WOULD
SEEM TO FOLLOW THAT A PROCEDURE, WHICH IS DESIGNED TO BAR AN
OPPORTUNITY TO PRESENT EVIDENCE SHOWING WHY "MERCY" SHOULD BE EXTENDED
TO AN ACCUSED IN A DEATH CASE, LACKS THAT FAIRNESS WHICH IS IMPLICIT IN
DUE PROCESS. 

THE UNITARY TRIAL IS CERTAINLY NOT "MERCY" ORIENTED.  THAT IS,
HOWEVER, NOT ITS DEFECT.  IT HAS A CONSTITUTIONAL INFIRMITY BECAUSE IT
IS NOT NEUTRAL ON THE AWESOME ISSUE OF CAPITAL PUNISHMENT.  THE RULES
ARE STACKED IN FAVOR OF DEATH.  IT IS NOT ONE THING IF THE LEGISLATURE
DECIDES THAT THE DEATH PENALTY ATTACHED TO DEFINED CRIMES.  IT IS QUITE
ANOTHER TO LEAVE TO JUDGE OR JURY THE DISCRETION TO SENTENCE AN ACCUSED
TO DEATH OR TO SHOW MERCY UNDER PROCEDURES THAT MAKE THE TRIAL DEATH
ORIENTED.  THEN THE LAW BECOMES A MERE PRETENSE, LACKING THE PROCEDURAL
INTEGRITY THAT WOULD LIKELY RESULT IN A FAIR RESOLUTION OF THE ISSUES. 
IN OHIO, THE DEFICIENCY IN THE PROCEDURE IS COMPOUNDED BY THE
UNREVIEWABILITY OF THE FAILURE TO GRANT MERCY.  /18/ 

WE STATED IN WITHERSPOON V. ILLINOIS, 391 U.S. 510, 521, THAT "A
STATE MAY NOT ENTRUST THE DETERMINATION OF WHETHER A MAN SHOULD LIVE OR
DIE TO A TRIBUNAL ORGANIZED TO RETURN A VERDICT OF DEATH."  IN THAT
CASE VENIREMEN HAD BEEN EXCLUDED FROM A JURY FOR CAUSE "SIMPLY BECAUSE
THEY VOICED GENERAL OBJECTIONS TO THE DEATH PENALTY OR EXPRESSED
CONSCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST ITS INFLICTION."  ID., AT
522-523. 

THE TRIBUNAL SELECTED BY OHIO TO CHOOSE BETWEEN DEATH AND LIFE
IMPRISONMENT IN FIRST-DEGREE MURDER CASES IS NOT PALPABLY "ORGANIZED TO
RETURN A VERDICT OF DEATH" IN THE WITHERSPOON SENSE.  BUT THE RULES
GOVERNING AND RESTRICTING ITS ADMINISTRATION OF THE UNITARY TRIAL
SYSTEM, PLACE THE WEIGHTS ON THE SIDE OF MAN'S SADISTIC DRIVE.  THE
EXCLUSION OF EVIDENCE RELEVANT TO THE ISSUE OF "MERCY" IS CONSPICUOUS
PROOF OF THAT LOPSIDED PROCEDURE; AND THE HAZARDS TO AN ACCUSED
RESULTING FROM MINGLING THE ISSUES OF GUILT, INSANITY, AND PUNISHMENT
IN ONE UNITARY PROCEEDING ARE MULTIPLIED.  WHETHER THIS PROCEDURE WOULD
SATISFY DUE PROCESS WHEN DEALING WITH LESSER OFFENSES MAY BE DEBATED. 
BUT WILL ALL DEFERENCE I SEE NO GROUNDS FOR DEBATE WHERE THE STAKE IS
LIFE ITSELF. 

I WOULD REVERSE THIS JUDGMENT OF CONVICTION. 

/1/  STATE V. MURDOCK, 172 OHIOST.  221, 174 N.E.2D 543.  AND SEE
STATE V. POLLARD, 21 OHIO ST.2D 171, 256 N.E.2D 620. 

/2/  STATE V. HECTOR, 19 OHIO ST.2D 167, 249 N.E.2D 912. 

/3/  STATE V. WILLIAMS, 85 OHIO APP. 236, 88 N.E.2D 420.  MERELY
TAKING THE STAND PUTS CREDIBILITY IN ISSUE.  HAMILTON V. STATE, 39 OHIO
APP. 153, 177 N.E. 22L. 

/4/  JOHNS V. STATE, 42 OHIO APP. 412, 182 N.E. 356. 

/5/  STATE V. FROHNER, 150 OHIO ST. 53, 80 N.E.2D 868; HOPPE V.
STATE, 29 OHIO APP. 467, 163 N.E. 715. 

/6/  SILSBY V. STATE, 119 OHIO ST. 314, 164 N.E. 232. 

/7/  "AT COMMON LAW THE DEFENDANT IN A FELONY CASE HAD A RIGHT,
CALLED 'ALLOCUTION,' TO BE ASKED FORMALLY WHETHER HE HAD 'ANY THING TO
OFFER WHY JUDGMENT SHOULD NOT BE AWARDED AGAINST HIM.'  . . . (SINCE
THE COMMON LAW JUDGE GENERALLY HAD NO DISCRETION AS TO THE QUANTUM OF
PUNISHMENT IN FELONY CASES, THE POINT OF HIS QUESTION TO THE DEFENDANT
WAS NOT TO ELICIT MITIGATING EVIDENCE OR A PLEA FOR LENIENCY, BUT TO
GIVE THE DEFENDANT A FORMAL OPPORTUNITY TO PRESENT ONE OF THE STRICTLY
DEFINED LEGAL REASONS WHICH REQUIRED THE AVOIDANCE OR DELAY OF
SENTENCING:  HE WAS NOT THE PERSON CONVICTED, HE HAD BENEFIT OF CLERGY
OR A PARDON, HE WAS INSANE, OR IF A WOMAN, SHE WAS PREGNANT."  NOTE,
PROCEDURAL DUE PROCESS AT JUDICIAL SENTENCING FOR FELONY, 81
HARV.L.REV.  821, 832-833. 

"THE COMMON LAW RIGHT OF THE DEFENDANT TO BE ASKED IF HE WISHES TO
MAKE A STATEMENT ON HIS OWN BEHALF AT THE TIME OF SENTENCING WOULD
APPEAR STILL TO BE RECOGNIZED IN MORE THAN HALF OF THE AMERICAN
JURISDICTIONS, ALTHOUGH IT FINDS EXPRESSION IN MANY FORMS AND COMES
FROM MANY SOURCES.  IN AT LEAST ONE STATE, THE RIGHT RISES TO A
CONSTITUTIONAL LEVEL.  SEE R.I. CONST. ART. I, SEC. 10; ROBALEWSKI V.
SUPERIOR COURT, 197 A.2D 751 (R.I. 1964).  IN MANY MORE STATES THE
RIGHT IS GUARANTEED BY STATUTE.  FOR A REPRESENTATIVE SAMPLE, SEE CAL.
PENAL CODE SECS. 1200, 1201 (1956); IOWA CODE ANN. SEC. 789.6 (1950);
KAN. GEN. STAT. ANN. SEC. 62-1510 (1964); MO. REV. STAT. SECS. 546.570,
546.580 (1953); N.Y. CODE CRIM. PROC. SEC. 480 (1958); OKLA. STAT. ANN.
TIT. 22, SEC. 970 (1958); TEX. CODE CRIM. PROC. ART. 42.07 (1966);
WASH. REV. CODE ANN. SEC. 10.64.040 (1961).  SEE ALSO 48 IOWA L.REV. 
172, 173-74 N. 11 (1962).  IN A FEW MORE JURISDICTIONS, THE RIGHT IS
SECURED BY RULES OF COURT.  SEE, E.G., N.J. CRIM. PRAC.  RULES,
SUPERIOR AND COUNTY COURTS, RULE 3:7-10(D) (1967); FED. RULE CRIM.
PROC. 32(A)(1).  SEE ALSO 39 F.R.D. 192-193 (1966); HILL V. UNITED
STATES, 368 U.S. 424 (1962); GREEN V. UNITED STATES, 365 U.S. 301
(1961).  IN OTHER JURISDICTIONS, CASE LAW IS THE ONLY SOURCE OF THE
DEFENDANT'S RIGHT.  SEE BARRETT, ALLOCUTION, 9 MO.L.REV.  115, 126-40
(1944)."  AMERICAN BAR ASSOCIATION, PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, SENTENCING ALTERNATIVES AND PROCEDURES 254-255 (APPROVED
DRAFT, 1968). 

/8/  AS MR. CHIEF JUSTICE WARREN SAID: 

"WHETHER OR NOT A STATE HAS RECIDIVIST STATUTES ON ITS BOOKS, IT IS
WELL ESTABLISHED THAT EVIDENCE OF PRIOR CONVICTIONS MAY NOT BE USED BY
THE STATE TO SHOW THAT THE ACCUSED HAS A CRIMINAL DISPOSITION AND THAT
THE PROBABILITY THAT HE COMMITTED THE CRIME CURRENTLY CHARGED IS
INCREASED.  WHILE THIS COURT HAS NEVER HELD THAT THE USE OF PRIOR
CONVICTIONS TO SHOW NOTHING MORE THAN A DISPOSITION TO COMMIT CRIME
WOULD VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, OUR
DECISIONS EXERCISING SUPERVISORY POWER OVER CRIMINAL TRIALS IN FEDERAL
COURTS, AS WELL AS DECISIONS BY COURTS OF APPEALS AND NO PURPOSE OTHER
THAN TO SHOW CRIMINAL DISPOSITION WOULD VIOLATE THE DUE PROCESS
CLAUSE."  SPENCER V. TEXAS, 385 U.S.,AT 572-574. 

/9/  TURNER V. STATE, 21 OHIO LAW ABS.  276; STATE V. KLUMPP.  15
OHIO OP.2D 461, 175 N.E.2D 767. 

/10/  STATE V. AMES, 50 OHIO LAW ABS.  311, 80 N.E.2D 168.  THE
RESULT IS THE SAME IF THE SENTENCING DECISION IS BASED ON A GUILTY PLEA
OR A JURY WAIVER.  STATE V. LUCEAR, 93 OHIO APP. 281, 109 N.E.2D 39;
STATE V. FERGUSON, 175 OHIO ST. 390, 195 N.E.2D 794. 

/11/  SHELTON V. STATE, 102 OHIO ST. 376, 131 N.E. 704 (SYLLABUS). 

/12/  IN CALDWELL THE JURY WAS INITIALLY INSTRUCTED:  "(WHETHER YOU
RECOMMEND OR WITHHOLD MERCY IS A MATTER SOLELY WITHIN YOUR DISCRETION,
CALLING FOR THE EXERCISE OF YOUR VERY BEST AND MOST PROFOUND JUDGMENT,
NOT MOTIVATED BY CONSIDERATIONS OF SYMPATHY OR AS A MEANS OF ESCAPING A
HARD OR DISAGREEABLE DUTY, BUT MUST BE CONSIDERED BY YOU IN THE LIGHT
OF ALL THE CIRCUMSTANCES OF THE CASE WITH RESPECT TO THE EVIDENCE
SUBMITTED TO YOU AND THE OTHER CIRCUMSTANCES SURROUNDING THIS
DEFENDANT."  FOLLOWING SOME DELIBERATION THE JURY RETURNED FOR SPECIAL
INSTRUCTIONS AND THE FOLLOWING OCCURRED: 

COURT:  "YOU SHOULD DETERMINE WHETHER OR NOT IN YOUR DISCRETION
MERCY SHOULD BE GRANTED FROM A CONSIDERATION OF THE EVIDENCE, THE
CHARACTER OF THE CRIME AND THE ATTENDING CIRCUMSTANCES." 

FOREMAN:  "WHAT ARE EXTENUATING CIRCUMSTANCES?  ARE THEY SOMETHING
WHICH WE CAN DETERMINE IN OUR OWN JUDGMENT ALONE?" 

COURT:  "NO, IF THERE ARE ANY, YOU MUST DETERMINE THEM FROM THE
EVIDENCE." 

FOREMAN:  "WELL, THEN, MAY WE CONSIDER SOCIOLOGICAL MATTERS AND
ENVIRONMENT IN DETERMINING THIS QUESTION OF GRANTED MERCY?" 

COURT:  "NO-- THEY HAVE NOTHING WHATEVER TO DO WITH THIS CASE." 

AT THIS POINT DEFENSE COUNSEL REQUESTED THE FOLLOWING INSTRUCTION: 

"IN DETERMINING WHETHER OR NOT IN YOUR DISCRETION YOU SHALL GRANT
MERCY TO THE DEFENDANT, YOU MAY CONSIDER ENVIRONMENTAL FACTORS AND
SOCIOLOGICAL CONDITIONS, AND IN DETERMINING WHETHER OR NOT THESE
FACTORS EXIST YOU SHALL CONSIDER ALL THE EVIDENCE PERMITTED TO GO TO
YOU IN THIS CASE, AND ALL REASONABLE INFERENCES TO BE DERIVED
THEREFROM.  YOU MAY ALSO CONSIDER, IN MAKING UP YOUR MIND ON THE
QUESTION OF MERCY, THE APPEARANCE, DEMEANOR AND ACTIONS OF THE
DEFENDANT AS YOU HAVE SEEN HIM HERE IN OPEN COURT." 

THE OHIO SUPREME COURT HELD IT WAS NOT ERROR TO REFUSE TO GIVE THIS
INSTRUCTION BECAUSE IT WAS "SUBSTANTIALLY IDENTICAL WITH THOSE
CONTAINED IN THE ANSWERS OF THE COURT TO THE JURY, AND ITS SUBJECT
MATTER WAS COVERED IN THE GENERAL CHARGE.  THERE WAS NO OCCASION FOR
REPETITION."  135 OHIO ST.,AT 425-428, 21 N.E.2D, AT 344-345. 

/13/  STATE V. LUCEAR, SUPRA, N. 10. 

/14/  THERE HAVE BEEN RECURRING DEMANDS THAT THE DUE PROCESS CLAUSE
BE ABOLISHED.  SEE CLARK, SOME RECENT PROPOSALS FOR CONSTITUTIONAL
AMENDMENT, 12 WIS.L.REV.  313, 324-326 (1937).  OTHERS HAVE SUGGESTED
THAT DUE PROCESS-- APART FROM THE SPECIFICS IN THE BILL OF RIGHTS--
SHOULD MEAN ONLY SUCH NOTICE, PROCEDURES, HEARINGS, OR TRIALS AS ARE
PRESCRIBED BY CONGRESS OR THE STATES.  SEE BURNS, THE DEATH OF E
PLURIBUS UNUM,19 DEPAUL L.REV.  651, 682 (1970). 

THE CRITICS OF THE EXISTING REGIME HAVE BEEN NUMEROUS.  MR. JUSTICE
FRANKFURTER ONCE SAID:  "(THE ULTIMATE JUSITIFICATION FOR NULLIFYING OR
SAYING THAT WHAT CONGRESS DID, WHAT THE PRESIDENT DID, WHAT THE
LEGISLATURE OF MASSACHUSETTS OR NEW YORK OR ANY OTHER STATE DID WAS
BEYOND ITS POWER, IS THAT PROVISION OF THE CONSTITUTION WHICH PROTECTS
LIBERTY AGAINST INFRINGEMENT WITHOUT DUE PROCESS OF LAW.  THERE ARE
TIMES, I CAN ASSURE YOU-- MORE TIMES THAN ONCE OR TWICE-- WHEN I SIT IN
THIS CHAIR AND WONDER WHETHER THAT ISN'T TOO GREAT A POWER TO GIVE TO
ANY NINE MEN, NO MATTER HOW WISE, HOW WELL DISCIPLINED, HOW
DISINTERESTED.  IT COVERS THE WHOLE GAMUT OF POLITICAL, SOCIAL, AND
ECONOMIC ACTIVITIES."  OF LAW AND LIFE AND OTHER THINGS THAT MATTER 129
(1965). 

YET NONE OF US, I DARE SAY, WOULD CONCLUDE THAT (APART FROM
CONSTITUTIONAL SPECIFICS) ANY NOTICE, ANY PROCEDURE, ANY FORM OF
HEARINGS, ANY TYPE OF TRIAL PRESCRIBED BY ANY LEGISLATURE WOULD PASS
MUSTER UNDER PROCEDURAL DUE PROCESS.  OUR PRESENT DISAGREEMENT RELATES
TO WHAT IS ESSENTIAL FOR A FAIR TRIAL, IF THE CONVENTIONAL, HISTORIC
STANDARDS OF PROCEDURAL DUE PROCESS ARE TO APPLY. 

/15/  SEE 4 W. BLACKSTONE, COMMENTARIES 347-349.  ORDEAL BY BATTLE
WAS FINALLY ABOLISHED IN 1819 IN ENGLAND.  59 GEO. 3, C. 46. 

/16/  1 J. STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 467
(1883). 

/17/  IT IS COMMONLY OVERLOOKED THAT JUSTICE IS ONE OF THE GOALS OF
OUR PEOPLE AS EXPRESSED IN THE PREAMBLE OF THE CONSTITUTION:     "WE
THE PEOPLE OF THE UNITED STATES, IN ORDER TO FORM A MORE PERFECT UNION,
ESTABLISH JUSTICE, INSURE DOMESTIC TRANQUILITY, PROVIDE FOR THE COMMON
DEFENCE, PROMOTE THE GENERAL WELFARE, AND SECURE THE BLESSINGS OF
LIBERTY TO OURSELVES AND OUR POSTERITY, DO ORDAIN AND ESTABLISH THIS
CONSTITUTIONA FOR THE UNITED STATES OF AMERICA." 

/18/  HOPPE V. STATE, 29 OHIO APP. 467, 163 N.E. 715. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THESE CASES TEST THE VIABILITY OF PRINCIPLES WHOSE ROOTS DRAW
STRENGTH FROM THE VERY CORE OF THE DUE PROCESS CLAUSE.  THE QUESTION
THAT PETITIONERS PRESENT FOR OUR DECISION IS WHETHER THE RULE OF LAW,
BASIC TO OUR SOCIETY AND BINDING UPON THE STATES BY VIRTUE OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, IS FUNDAMENTALLY
INCONSISTENT WITH CAPITAL SENTENCING PROCEDURES THAT ARE PURPOSELY
CONSTRUCTED TO ALLOW THE MAXIMUM POSSIBLE VARIATION FROM ONE CASE TO
THE NEXT, AND PROVIDE NO MECHANISM TO PREVENT THAT CONSCIOUSLY
MAXIMIZED VARIATION FROM REFLECTING MERELY RANDOM OR ARBITRARY CHOICE. 
THE COURT DOES NOT, HOWEVER, COME TO GRIPS WITH THAT FUNDAMENTAL
QUESTION.  INSTEAD, THE COURT MISAPPREHENDS PETITIONERS' ARGUMENT AND
DEALS WITH THE CASES AS IF PETITIONERS CONTEND THAT DUE PROCESS
REQUIRES CAPITAL SENTENCING TO BE CARRIED OUT UNDER PREDETERMINED
STANDARDS SO PRECISE AS TO BE CAPABLE OF PURELY MECHANICAL APPLICATION,
ENTIRELY ELIMINATING ANY BESTIGES OF FLEXIBILITY OR DISCRETION IN THEIR
USE.  THIS MISAPPREHENDED QUESTION IS THEN TREATED IN THE CONTEXT OF
THE COURT'S ASSUMPTION THATT THE LEGISLATURES OF OHIO AND CALIFORNIA
ARE INCOMPETENT TO EXPRESS WITH CLARITY THE BASES UPON WHICH THEY HAVE
DETERMINED THAT SOME PERSONS GUILTY OF SOME CRIMES SHOULD BE KILLED,
WHILE OTHERS SHOULD LIVE-- AN ASSUMPTION THAT, SIGNIFICANTLY, FINDS NO
SUPPORT IN THE ARGUMENTS MADE BY THOSE STATES IN THESE CASES.  WITH THE
ISSUE SO POLARIZED, THE COURT IS LED TO CONCLUDE THAT THE RULE OF LAW
AND THE POWER OF THE STATES TO KILL ARE IN IRRECONCILABLE CONFLICT. 
THIS CONFLICT THE COURT RESOLVES IN FAVOR OF STATES' POWER TO KILL. 

IN MY VIEW THE COURT ERRS AT ALL POINTS FROM ITS PREMISES TO ITS
CONCLUSIONS.  UNLIKE THE COURT, I DO NOT BELIEVE THAT THE LEGISLATURES
OF THE 50 STATES ARE SO DEVOID OF WISDOM AND THE POWER OF RATIONAL
THOUGHT THAT THEY ARE UNABLE TO FACE THE PROBLEM OF CAPITAL PUNISHMENT
DIRECTLY, AND TO DETERMINE FOR THEMSELVES THE CRITERIA UNDER WHICH
CONVICTED CAPITAL FELONS SHOULD BE CHOSEN TO LIVE OR DIE.  WE ARE THUS
NOT, IN MY VIEW, FACED BY THE DILEMMA PERCEIVED BY THE COURT, FOR CASES
IN THIS COURT HAVE FOR ALMOST A CENTURY AND A HALF APPROVED A
MULTIPLICITY OF IMAGINATIVE PROCEDURES DESIGNED BY THE STATE AND
FEDERAL LEGISLATURES TO ASSURE EVENHANDED TREATMENT AND ULTIMATE
LEGISLATIVE CONTROL REGARDING MATTERS THAT THE LEGISLATURES HAVE DEEMED
EITHER TOO COMPLEX OR OTHERWISE INAPPOSITE FOR REGULATION UNDER
PREDETERMINED RULES CAPABLE OF AUTOMATIC APPLICATION IN EVERY CASE. 
FINALLY, EVEN IF I SHARED THE COURT'S VIEW THAT THE RULE OF LAW AND THE
POWER OF THE STATES TO KILL ARE IN IRRECONCILABLE CONFLICT, I WOULD
HAVE NO HESITATION IN CONCLUDING THAT THE RULE OF LAW MUST PREVAIL. 

EXCEPT WHERE IT INCORPORATES SPECIFIC SUBSTANTIVE CONSTITUTIONAL
GUARANTEES AGAINST STATE INFRINGEMENT, THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT DOES NOT LIMIT THE POWER OF THE STATES TO CHOOSE
AMONG COMPETING SOCIAL AND ECONOMIC THEORIES IN THE ORDERING OF LIFE
WITHIN THEIR RESPECTIVE JURISDICTIONS.  BUT IT DOES REQUIRE THAT, IF
STATE POWER IS TO BE EXERTED, THESE CHOICES MUST BE MADE BY A
RESPONSBILE ORGAN OF STATE GOVERNMENT.  FOR IF THEY ARE NOT, THE VERY
BEST THAT MAY BE HOPED FOR IS THAT STATE POWER WILL BE EXERCISED, NOT
UPON THE BASIS OF ANY SOCIAL CHOICE MADE BY THE PEOPLE OF THE STATE,
BUT INSTEAD MERELY ON THE BASIS OF SOCIAL CHOICES MADE AT THE WHIM OF
THE PARTICULAR STATE OFFICIAL WIELDING THE POWER.  IF THERE IS NO
EFFECTIVE SUPERVISION OF THIS PROCESS TO INSURE CONSISTENCY OF
DECISION, IT CAN AMOUNT TO NOTHING MORE THAN GOVERNMENT BY WHIM.  BUT
OURS HAS BEEN "TERMED A GOVERNMENT OF LAWS, AND NOT OF MEN."  MARBURY
V. MADISON, 1 CRANCH 137, 163 (1803).  GOVERNMENT BY WHIM IS THE VERY
ANTITHESIS OF DUE PROCESS. 

IT IS NOT A MERE HISTORICAL ACCIDENT THAT "(THE HISTORY OF LIBERTY
HAS LARGELY BEEN THE HISTORY OF OBSERVANCE OF PROCEDURAL SAFEGUARDS." 
MCNABB V. UNITED STATES, 318 U.S. 332, 347 (1943) (FRANKFURTER, J.). 
THE RANGE OF PERMISSIBLE STATE CHOICE AMONG COMPETING SOCIAL AND
ECONOMIC THEORIES IS SO BROAD THAT ALMOST ANY ARBITRARY OR OTHERWISE
IMPERMISSIBLE DISCRIMINATION AMONG INDIVIDUALS MAY MASK ITSELF AS
NOTHING MORE THAN SUCH A PERMISSIBLE EXERCISE OF CHOICE UNLESS
PROCEDURES ARE DEVISED WHICH ADEQUATELY INSURE THAT THE RELEVANT CHOICE
IS ACTUALLY MADE.  SUCH PROCEDURES MAY BE PROVIDED WITH A SET OF
GUIDELINES TO APPLY IN RENDERING JUDGMENT.  HIS DECISION MAY BE
REQUIRED TO REST UPON THE PRESENCE OR ABSENCE OF SPECIFIC FACTORS.  IF
THE LEGISLATURE CONCLUDES THAT THE RANGE OF VARIATION TO BE DEALT WITH
PRECLUDES ADEQUATE TREATMENT UNDER INFLEXIBLE, PREDETERMINED STANDARDS
IT MAY ADOPT MORE IMAGINATIVE PROCEDURES.  THE SPECIFICITY OF STANDARDS
MAY BE RELAXED, DIRECTING THE DECISIONMAKER'S ATTENTION TO THE BASIC
POLICY DETERMINATIONS UNDERLYING THE STATUTE WITHOUT BINDING HIS ACTION
WITH REGARD TO MATTERS OF IMPORTANT BUT UNFORESEEN DETAIL.  HE MAY BE
INSTRUCTED TO CONSIDER A LIST OF FACTORS-- EITHER ILLUSTRATIVE OR
EXHAUSTIVE-- INTENDED TO ILLUMINATE THE QUESTION PRESENTED WITHOUT
SETTING A FIXED BALANCE.  THE PROCESS MAY DRAW UPON THE GENIUS OF THE
COMMON LAW, AND DIRECT ITSELF TOWARD THE REFINEMENT OF UNDERSTANDING
THROUGH CASE-BY-CASE DEVELOPMENT.  IN SUCH CASES DECISION MAY BE LEFT
ALMOST ENTIRELY IN THE HANDS OF THE BODY TO WHICH IT IS DELEGATED, WITH
ULTIMATE LEGISLATIVE SUPERVISION ON QUESTIONS OF BASIC POLICY AFFORED
BY REQUIRING THE DECISIONMAKERS TO EXPLAIN THEIR ACTIONS, AND
EVENHANDED TREATMENT ENHANCED BY REQUIRING DISPUTED FACTUAL ISSUES TO
BE RESOLVED AND PROVIDING FOR SOME FORM OF SUBSEQUENT REVIEW.  CREATIVE
LEGISLATURES MAY DEVISE YET OTHER PROCEDURES.  DEPENDING UPON THE
NATURE AND IMPORTANCE OF THE ISSUES TO BE DECIDED, THE KIND OF TRIBUNAL
RENDERING JUDGMENT, THE NUMBER AND FREQUENCY OF DECISIONS TO BE MADE,
AND THE NUMBER OF SEPARATE TRIBUNALS INVOLVED IN THE PROCESS, THESE
TECHNIQUES MAY BE APPLIED SINGLY OR IN COMBINATION. 

IT IS CRITICAL IMPORTANCE IN THE PRESENT CASES TO EMPHASIZE THAT WE
ARE NOT CALLED UPON TO DETERMINE THE ADEQUACY OR INADEQUACY OF ANY
PARTICULAR LEGISLATIVE PROCEDURE DESIGNED TO GIVE RATIONALITY TO THE
CAPITAL SENTENCING PROCESS.  FOR THE PLAIN FACT IS THAT THE
LEGISLATURES OF CALIFORNIA AND OHIO, WHENCE COME THESE CASES, HAVE
SOUGHT NO SOLUTION AT ALL.  WE ARE NOT PRESENTED WITH A STATE'S ATTEMPT
TO PROVIDE STANDARDS, ATTACKED AS IMPERMISSIBLE OR INADEQUATE.  WE ARE
NOT PRESENTED WITH A LEGISLATIVE ATTEMPT TO DRAW WISDOM FROM EXPERIENCE
THROUGH A PROCESS LOOKING TOWARD GROWTH IN UNDERSTANDING THROUGH THE
ACCUMULATION OF A VARIETY OF EXPERIENCES.  WE ARE NOT PRESENTED WITH
THE SLIGHTEST ATTEMPT TO BRING THE POWER OF REASON TO BEAR ON THE
CONSIDERATIONS RELEVANT TO CAPITAL SENTENCING.  WE ARE FACED WITH
NOTHING MORE THAN STARK LEGISLATIVE ABDICTION.  NOT ONCE IN THE HISTORY
OF THIS COURT, UNTIL TODAY, HAVE WE SUSTAINED AGAINST A DUE PROCESS
CHALLENGE SUCH AN UNGUIDED, UNBRIDLED, UNREVIEWABLE EXERCISE OF NAKED
POWER.  ALMOST A CENTURY AGO, WE FOUND AN ALMOST IDENTICAL CALIFORNIA
PROCEDURE CONSTITUTIONALLY INADEQUATE TO LICENSE A LAUNDRY.  YICK WO V.
HOPKINS, 118 U.S. 356, 366-367, 369-370 (1886).  TODAY WE HOLD IT
ADEQUATE TO LICENSE A LIFE.  I WOULD REVERSE PETITIONERS'  SENTENCES OF
DEATH. 

        I 

"OUR SCHEME OF ORDERED LIBERTY IS BASED, LIKE THE COMMON LAW, ON
ENLIGHTENED AND UNIFORMLY APPLIED LEGAL PRINCIPLE, NOT ON AD HOC
NOTIONS OF WHAT IS RIGHT OR WRONG IN A PARTICULAR CASE."  J. HARLAN,
THOUGHTS AT A DEDICATION:  KEEPING THE JUDICIAL FUNCTION IN BALANCE, IN
THE EVOLUTION OF A JUDICIAL PHILOSOPHY 289, 2910292 (D. SHAPIRO ED.,
1969).  /1/  THE DANGERS INHERENT IN ANY GRANT OF GOVERNMENTAL POWER
WITHOUT PROCEDURAL SAFEGUARDS UPON ITS EXERCISE WERE KNOWN TO ENGLISH
LAW LONG LONG BEFORE THE CONSTITUTION WAS ESTALBISHED.  SEE, E.G., 8
HOW.ST.TR. 55-58, N.  THE PRINCIPLE THAT OUR GOVERNMENT SHALL BE OF
LAWS AND NOT OF MEN IS SO STRONGLY WOVEN INTO OUR CONSTITUTIONAL FABRIC
THAT IT HAS FOUND RECOGNITION IN NOT JUST ONE BUT SEVERAL PROVISIONS OF
THE CONSTITUTION.  /2/  AND THIS PRINCIPLE HAS BEEN CENTERED TO THE
DECISIONS OF THIS COURT GIVING CONTENT TO THE DUE PROCESS CLAUSE.  /3/
AS WE SAID IN HURTADO V. CALIFORNIA, 110 U.S. 516, 535-536 (1884): 

"(IT IS NOT TO BE SUPPOSED THAT . . . THE AMENDMENT PRESCRIBING DUE
PROCESS OF LAW IS TOO VAGUE AND INDEFINITE TO OPERATE AS A PRACTICAL
RESTRAINT.  . . . LAW IS SOMETHING MORE THAN MERE WILL EXERTED AS AN
ACT OF POWER.  IT MUST BE NOT A SPECIAL RULE FOR A PARTICULAR PERSON OR
A PARTICULAR CASE, BUT . . . 'THE GENERAL LAW . . .'  SO 'THAT EVERY
CITIZEN SHALL HOLD HIS LIFE, LIBERTY, PROPERTY AND IMMUNITIES UNDER THE
PROTECTION OF THE GENERAL RULES WHICH GOVERN SOCIETY,'  AND THUS
EXCLUDING, AS NOT DUE PROCESS OF LAW, ACTS OF ATTAINDER, BILLS OF PAINS
AND PENALTIES, ACTS OF CONFISCATION . . . AND OTHER SIMILAR SPECIAL,
PARTIAL AND ARBITRARY EXERTIONS OF POWER UNDER THE FORMS OF
LEGISLATION.  ARBITRARY POWER, ENFORCING ITS EDICTS TO THE INJURY OF
THE PERSONS AND PROPERTY OF ITS SUBJECTS, IS NOT LAW, WHETHER
MANIFESTED AS THE DECREE OF A PERSONAL MONARCH OR OF AN IMPERSONAL
MULTITUDE." 

THE PRINCIPAL FUNCTION OF THE DUE PROCESS CLAUSE IS TO INSURE THAT
STATE POWER IS EXERCISED ONLY PURSUANT TO PROCEDURES ADEQUATE TO
VINDICATE INDIVIDUAL RIGHTS.  /4/  WHILE WE HAVE, ON RARE OCCASIONS,
HELD THAT DUE PROCESS REQUIRES SPECIFIC PROCEDURAL DEVICES NOT
EXPLICITLY COMMANDED BY THE BILL OF RIGHTS, /5/  WE HAVE GENERALLY
EITHER INDICATED ONE ACCEPTABLE PROCEDURE AND LEFT THE STATES FREE TO
DEVISE OTHERS, /6/  OR ELSE MERELY RULED UPON THE VALIDITY OF A
PARTICULAR PROCEDURE WITHOUT ATTEMPTING TO LIMIT OR EVEN GUIDE STATE
CHOICE OF PROCEDURAL MECHANISMS BEYOND STATING THE OBVIOUS PROPOSITION
THAT INADEQUATE MECHANISMS MAY NOT BE EMPLOYED.  /7/  SEVERAL
PRINCIPLES, HOWEVER, HAVE UNTIL TODAY BEEN CONSISTENTLY EMPLOYED TO
GUIDE DETERMINATIONS OF THE ADEQUACY OF ANY GIVEN STATE PROCEDURE. 
"WHEN THE GOVERNMENT EXACTS . . . MUCH, THE IMPORTANCE OF FAIR,
EVENHANDED, AND UNIFORM DECISIONMAKING IS OBVIOUSLY INTENSIFIED." 
GILLETTE V. UNITED STATES, 401 U.S. 437, 455 (1971).  PROCEDURES
ADEQUATE TO DETERMINE A WELFARE CLAIM MAY NOT SUFFICE TO TRY A FELONY
CHARGE.  COMPARE GOLDBERT V. KELLY, 397 U.S. 254, 270-271 (1970), WITH
GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963).  SECOND, EVEN WHERE THE ONLY
RIGHTS TO BE ADJUDICATED ARE THOSE CREATED AND PROTECTED BY STATE LAW,
DUE PROCESS REQUIRES THAT STATE PROCEDURES BE ADEQUATE TO ALLOW ALL
THOSE CONCERNED A FAIR HEARING OF THEIR STATE-LAW CLAIMS.  BODDIE V.
CONNECTICUT, 401 U.S. 371 (1971); COVEY V. TOWN OF SOMERS, 351 U.S. 141
(1956); MULLANE V. CENTRAL HANOVER TRUST CO., 339 U.S. 306 (1950). 
THIRD, WHERE FEDERALLY PROTECTED RIGHTS ARE INVOLVED, DUE PROCESS
COMMANDS NOT ONLY THAT STATE PROCEDURE BE ADEQUATE TO ASSURE A FAIR
HEARING OF FEDERAL CLAIMS, IN RE GAULT, 387 U.S. 1 (1967), BUT ALSO
THAT IT PROVIDE ADEQUATE OPPORTUNITY FOR REVIEW OF THOSE FEDERAL CLAIMS
WHERE SUCH REVIEW IS OTHERWISE AVAILABLE.  GOLDBERG V. KELLY, 397
U.S.,AT 271; BOYKIN V. ALABAMA, 395 U.S. 238, 242-244 (1969); JACKSON
V. DENNO, 378 U.S. 368, 387 (1964); CF. NORTH CAROLINA V. PEARCE, 395
U.S. 711, 725-726 (1969); IN RE MURCHISON, 349 U.S. 133, 136 (1955). 
FINALLY, AND CLOSELY RELATED TO THE PREVIOUS POINT, DUE PROCESS
REQUIRES THAT PROCEDURES FOR THE EXERCISE OF STATE POWER BE STRUCTURED
IN SUCH A WAY THAT, ULTIMATELY AT LEAST, FUNDAMENTAL CHOICES AMONG
COMPETING STATE POLICIES ARE RESOLVED BY A RESPONSIBLE ORGAN OF STATE
GOVERNMENT.  LOUISIANA V. UNITED STATES, 380 U.S. 145, 152-153 (1965)
(BLACK, J.); FCC V. RCA COMMUNICATIONS, INC., 346 U.S. 86, 90 (1953);
IEMOTKO V. MARYLAND, 340 U.S. 268 (1951); UNITED STATES V. ROCK ROYAL
CO-OP, 307 U.S. 533, 574, 575 (1939); CURRIN V. WALLACE, 306 U.S. 1, 15
(1939); LOVELL V. GRIFFIN, 303 U.S. 444 (1938); BROWNING V. HOOPER, 269
U.S. 396, 405-406 (1926); MCKINLEY V. UNITED STATES, 249 U.S. 397, 399
(1919); EUBANK V. RICHMOND, 226 U.S. 137, 143-144 (1912); YICK WO V.
HOPKINS, 118 U.S.,AT 366-367, 369-370.  THE DAMAGE THAT TODAY'S
HOLDING, IF FOLLOWED, WOULD DO TO OUR CONSTITUTIONAL FABRIC CAN ONLY BE
UNDERSTOOD FROM A CLOSER EXAMINATION OF OUR CASES THAN IS CONTAINED IN
THE COURT'S OPINION.  I THEREFORE TURN TO THOSE CASES. 

        A 

ANALYSIS MAY USEFULLY BEGIN WITH THIS COURT'S CASES APPLYING WHAT
HAS COME TO BE KNOWN AS THE "VOID-FOR-VAGUENESS" DOCTRINE.  IT IS
SOMETIMES SUGGESTED THAT IN HOLDING A STATUTE VOID FOR VAGUENESS, THIS
COURT IS MERELY APPLYING ONE OF TWO SEPARATE DOCTRINES: FIRST, THAT A
CRIMINAL STATUTE MUST GIVE FAIR NOTICE OF THE CONDUCT THAT IT FORBIDS,
E.G., LANZETTA V. NEW JERSEY, 306 U.S. 451 (1939); CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U.S. 385, 391 (1926); AND SECOND, THAT A STATUTE
MAY NOT CONSTITUTIONALLY BE ENFORCED IF IT INDISCRIMINATELY SWEEPS
WITHIN ITS AMBIT CONDUCT THAT MAY NOT BE THE SUBJECT OF CRIMINAL
SANCTIONS AS WELL AS CONDUCT THAT MAY.  E.G., BAGGETT V. BULLITT, 377
U.S. 360 (1964); DOMBROWSKI V. PFISTER, 380 U.S. 479, 492-496 (1965). 
TO THIS IS OFTEN ADDED THE OBSERVATION THAT BOTH DOCTRINES APPLY WITH
PARTICULAR VIGOR TO STATE REGULATION OF CONDUCT AT OR NEAR THE
BOUNDARIES OF THE FIRST AMENDMENT.  SEE UNITED STATES V. NATIONAL DAIRY
CORP., 372 U.S. 29, 36 (1963); SMITH V. CALIFORNIA, 361 U.S. 147, 150
152 (1959).  /8/  BUT UNLESS IT BE ASSUMED THAT OUR DECISIONS IN SUCH
MATTERS HAVE SHOWN AN ALMOST UNPARALLELED INCONSISTENCY, THESE FACTORS
MAY NOT BE TAKEN AS MORE THAN A PARTIAL EXPLANATION OF THE DOCTRINE. 
TO BEGIN WITH, WE HAVE NEVER TREATED CLAIMS OF UNCONSTITUTIONAL
STATUTORY VAGUENESS IN TERMS OF THE STATUTE AS WRITTEN OR AS CONSTRUED
PRIOR TO THE TIME OF THE CONDUCT IN QUESTION.  INSTEAD, WE HAVE
INVARIABLY DEALT WITH THE STATUTE AS GLOSSED BY THE COURTS BELOW AT THE
TIME OF DECISION HERE.  E.G., GIACCIO V. PENNSYLVANIA, 382 U.S. 399
(1966); WINTERS V. NEW YORK, 333 U.S. 507 (1948); COX V. NEW HAMPSHIRE,
312 U.S. 569 (1941).  IN MUSSER V. UTAH, 333 U.S. 95 (1948), WE EVEN
REMANDED A CRIMINAL CASE TO THE UTAH SUPREME COURT FOR A CONSTRUCTION
OF THE STATUTE SO THAT ITS POSSIBLE VAGUENESS COULD BE ANALYZED.  IN
DEALING WITH VAGUENESS ATTACKS ON FEDERAL STATUTES, WE HAVE NOT
HESITATED TO CONSTRUE THE STATUTE TO AVOID VAGUENESS PROBLEMS AND,
HAVING SO CONSTRUED IT, APPLY IT TO THE CASE AT HAND.  SEE UNITED
STATES V. VUITCH, ANTE, P. 62 (1971); DENNIS V. UNITED STATES, 341 U.S.
494, 502 (1951); KAY V. UNITED STATES, 303 U.S. 1 (1938).  IF THE
VAGUENESS DOCTRINE WERE FUNDAMENTALLY PREMISED UPON A CONCEPT OF FAIR
NOTICE, SUCH TREATMENT WOULD SIMPLY MAKE NO SENSE:  A CITIZEN CANNOT BE
EXPECTED TO FORESEE SUBSEQUENT CONSTRUCTION OF A STATUTE BY THIS OR ANY
OTHER COURT.  SEE FREUND, THE SUPREME COURT AND CIVIL LIBERTIES, 4
VAND.L.REV.  533, 540-542 (1951).  BUT IF, AS I BELIEVE, THE DOCTRINE
OF VAGUENESS IS PREMISED UPON THE FUNDAMENTAL NOTION THAT DUE PROCESS
REQUIRES GOVERNMENTS TO MAKE EXPLICIT THEIR CHOICES AMONG COMPETING
SOCIAL POLICIES, SEE INFRA, AT 259-265, THE INCONSISTENCY BETWEEN
THEORY AND PRACTICE DISAPPEARS.  OF COURSE SUCH A CHOICE, ONCE MADE, IS
NOT IRREVOCABLE:  STATUTES MAY BE AMENDED AND STATUTORY CONSTRUCTION
OVERRULED.  NEVERTHELESS, AN EXPLICIT STATE CHOICE AMONG POSSIBLE
STATUTORY CONSTRUCTIONS SUBSTANTIALLY REDUCES THE LIKELIHOOD THAT
SUBSEQUENT CONVICTIONS UNDER THE STATUTE WILL BE BASED ON IMPERMISSIBLE
FACTORS.  /9/  IT ALSO RENDERS MORE EFFECTIVE THE AVAILABLE MECHANISMS
FOR JUDICIAL REVIEW, BY INCREASING THE LIKELIHOOD THAT IMPERMISSIBLE
FACTORS, IF RELIED UPON, WILL BE DISCERNIBLE FROM THE RECORD.  THUS IN
THOMPSON V. LOUISVILLE, 362 U.S. 199 (1960), WE WERE FACED WITH THE
APPLICATION OF A SPECIFIC VAGRANCY STATUTE TO CONDUCT-- DANCING IN A
PUBLIC BAR-- THAT THERE IS NO REASON TO BELIEVE COULD NOT HAVE BEEN
CONSTITUTIONALLY PROHIBITED HAD THE STATE CHOSEN TO DO SO.  WE WERE,
HOWEVER, ABLE TO EXAMINE THE RECORD AND CONCLUDE THAT THERE WAS IN FACT
NO EVIDENCE THAT COULD SUPPORT A CONVICTION UNDER THE STATUTE.  CF.
BACHELLAR V. MARYLAND, 397 U.S. 564 (1970) (IMPOSSIBLE TO DETERMINE
WHETHER VERDICT RESTED UPON PERMISSIBLE OR IMPERMISSIBLE GROUNDS). 

SECOND, IN DEALING WITH STATUTES THAT ARE UNCONSTITUTIONALLY
OVERBROAD, WE HAVE CONSISTENTLY INDICATED THAT "ONCE AN ACCEPTABLE
LIMITING CONSTRUCTION IS OBTAINED, (SUCH A STATUTE) MAY BE APPLIED TO
CONDUCT OCCURRING PRIOR TO THE CONSTRUCTION, PROVIDED SUCH APPLICATION
AFFORDS FAIR WARNING TO THE DEFENDANTS."  DOMBROWSKI V. PFISTER, 380
U.S.,AT 491 N. 7 (CITATIONS OMITTED); /10/  SEE, E.G., POULOS V. NEW
HAMPSHIRE, 345 U.S. 395 (1953).  THAT IS, AN UNCONSTITUTIONALLY
OVERBROAD STATUTE MAY NOT BE ENFORCED AT ALL UNTIL AN ACCEPTABLE
CONSTRUCTION HAS BEEN OBTAINED, E.G., THORNHILL V. ALABAMA, 310 U.S. 88
(1940); BUT ONCE SUCH A CONSTRUCTION HAS BEEN MADE, THE STATUTE AS
CONSTRUED MAY BE APPLIED TO CONDUCT OCCURRING PRIOR TO THE LIMITING
CONSTRUCTION.  IF NOTICE AND OVERBREADTH WERE THE ONLY COMPONENTS OF
THE VAGUENESS DOCTRINE, THIS TREATMENT WOULD, ONCE AGAIN, BE
INEXPLICABLE.  SO FAR AS NOTICE IS CONCERNED, ONE WHO HAS ENGAGED IN
CERTAIN CONDUCT PRIOR TO THE LIMITING CONSTRUCTION OF AN OVERBROAD
STATUTE HAS OBVIOUSLY NOT RECEIVED FROM THAT CONSTRUCTION ANY WARNING
THAT WOULD HAVE ENABLED HIM TO KEEP HIS CONDUCT WITHIN THE BOUNDS OF
LAW.  SIMILARLY, IF ADEQUATE NOTICE HAS IN FACT BEEN GIVEN BY AN
OVERBROAD STATUTE THAT CERTAIN CONDUCT WAS CRIMINALLY PUNISHABLE, IT IS
HARD TO SEE HOW THE DOCTRINE OF OVERBREADTH IS FURTHERED BY FORBIDDING
THE STATE, ON THE ONE HAND, TO PUNISH THAT CONDUCT SO LONG AS AN
ACCEPTABLE LIMITING CONSTRUCTION HAS NOT BEEN OBTAINED, BUTPERMITTING
IT TO PUNISH THE SAME, PRIOR CONDUCT ONCE THE STATUTE HAS BEEN
ACCEPTABLY CONSTRUED.  ONCE AGAIN, HOWEVER, OUR ACTIONS ARE NOT AT ALL
INEXPLICABLE IF EXAMINED IN THE TERMS ARTICULATED HERE.  ONCE AN
ACCEPTABLE LIMITING CONSTRUCTION HAS IN FACT BEEN OBTAINED, THRE IS BY
THAT VERY FACT AN ASSURANCE THAT A RESPONSIBLE ORGAN OF STATE POWER HAS
MADE AN EXPLICIT CHOICE AMONG POSSIBLE ALTERNATIVE POLICIES:  FOR IT
SHOULD NOT BE FORGOTTEN THAT THE STATES POSSESS CONSTITUTIONAL POWER TO
MAKE CRIMINAL MUCH CONDUCT THAT THEY MAY NOT WISH TO FORBID, OR MAY
EVEN DESIRE TO ENCOURAGE.  IF A VAGUE OR OVERBROAD STATUTE IS APPLIED
BEFORE IT HAS BEEN ACCEPTABLY CONSTRUED, THERE REMAINS THE DANGER THAT
AN INDIVIDUAL WHOSE CONDUCT IS ADMITTEDLY CLEARLY WITHIN THE SCOPE OF
THE STATUTE ON ITS FACE WILL BE PUNISHED FOR ACTIONS WHICH IN FACT THE
STATE DOES NOT DESIRE TO MAKE GENERALLY PUNISHABLE-- CONDUCT WHICH, IF
ENGAGED IN BY ANOTHER PERSON, WOULD NOT BE SUBJECT TO CRIMINAL
LIABILITY.  SHUTTLESWORTH V. BIRMINGHAM, 382 U.S. 87, 91092 (1965). 
ALLOWING A VAGUE OR OVERBROAD STATUTE TO BE ENFORCED IF, AND ONLY IF,
AN ACCEPTABLE CONSTRUCTION HAS BEEN OBTAINED FORCES THE STATE TO MAKE
EXPLICIT ITS SOCIAL CHOICES AND PREVENTS DISCRIMINATION THROUGH THE
APPLICATION OF ONE POLICY TO ONE PERSON AND ANOTHER POLICY TO OTHERS. 
/11/ 

PARTICULARLY RELEVANT TO THE PRESENT CASE IS OUR DECISION IN GIACCIO
V. PENNSYLVANIA, 382 U.S. 399 (1966).  THAT CASE INVOLVED A STATUTE
WHEREBY PENNSYLVANIA ATTEMPTED TO MITIGATE THE HARSHNESS OF ITS COMMON
LAW RULE REQUIRING CRIMINAL DEFENDANTSTO PAY THE COSTS OF PROSECUTION
IN ALL CASES /12/  BY COMMITTING THE MATTER TO THE DISCRETION OF THE
JURY IN CASES WHERE THE DEFENDANT WAS FOUND NOT GUILTY.  /13/  TWO
MEMBERS OF THIS COURT, CONCURRING IN THE RESULT, WOULD HAVE HELD THAT
DUE PROCESS FORBADE THE IMPOSITION OF COSTS UPON AN ACQUITTED
DEFENDANT.  382 U.S.,AT 405.  WE REFUSED, HOWEVER, TO BASE OUR DECISION
ON THAT GROUND.  IN AN OPINION BY MY BROTHER BLACK, WE SAID: 

"WE AGREE WITH THE TRIAL COURT . . . THAT THE 1860 ACT IS INVALID
UNDER THE DUE PROCESS CLAUSE BECAUSE OF VAGUENESS AND THE ABSENCE OF
ANY STANDARDS SUFFICIENT TO ENABLE DEFENDANTS TO PROTECT THEMSELVES
AGAINST ARBITRARY AND DISCRIMINATORY IMPOSITIONS OF COSTS. 

        .          .          .      . 

     ". . . IT IS ESTABLISHED THAT A LAW FAILS TO MEET THE

  REQUIREMENTS OF THE DUE PROCESS CLAUSE IF IT IS SO VAGUE AND

  STANDARDLESS THAT IT LEAVES THE PUBLIC UNCERTAIN AS TO THE

  CONDUCT IT PROHIBITS OR LEAVES JUDGES AND JURORS FREE TO DECIDE,

  WITHOUT ANY LEGALLY FIXED STANDARDS, WHAT IS PROHIBITED AND WHAT

  IS NOT IN EACH PARTICULAR CASE.  THIS 1860 PENNSYLVANIA ACT

  CONTAINS NO STANDARDS AT ALL . . . . CERTAINLY ONE OF THE BASIC

  PURPOSES OF THE DUE PROCESS CLAUSE HAS ALWAYS BEEN TO PROTECT A

  PERSON AGAINST HAVING THE GOVERNMENT IMPOSE BURDENS UPON HIM

 EXCEPT IN ACCORDANCE WITH THE VALID LAWS OF THE LAND.  IMPLICIT

  IN THIS CONSTITUTIONAL SAFEGUARD IS THE PREMISE THAT THE LAW MUST

  BE ONE THAT CARRIES AN UNDERSTANDABLE MEANING WITH LEGAL

  STANDARDS THAT COURTS MUST ENFORCE.  . . . 

     ". . . THE STATTE CONTENDS THAT . . . STATE COURT

  INTERPRETATIONS HAVE PROVIDED STANDARDS AND GUIDES THAT CURE THE

  . . . CONSTITUTIONAL DEFICIENCIES.  WE DO NOT AGREE.  . . . IN

  THIS CASE THE TRIAL JUDGE INSTRUCTED THE JURY THAT IT MIGHT PLACE

  THE COSTS OF PROSECUTION ON THE APPELLANT, THOUGH FOUND NOT

  GUILTY OF THE CRIME CHARGED, IF THE JURY FOUND THAT 'HE HAS BEEN

  GUILTY OF SOME MISCONDUCT LESS THAN THE OFFENSE WHICH IS CHARGED

  BUT NEVERTHELESS MISCONDUCT OF SOME KIND AS A RESULT OF WHICH HE

SHOULD BE REQUIRED TO PAY SOME PENALTY SHORT OF CONVICTION (AND)

  . . . HIS MISCONDUCT HAS GIVEN RISE TO THE PROSECUTION.' 

     "IT MAY POSSIBLY BE THAT THE TRIAL COURT'S CHARGE COMES NEARER

  TO GIVING A GUIDE TO THE JURY THAN THOSE THAT PRECEDED IT, BUT IT

  STILL FALLS SHORT OF THE KIND OF LEGAL STANDARD DUE PROCESS

  REQUIRES.  . . ."  382 U.S.,AT 402-404 (CITATIONS OMITTED). 
/14/ 

SEVERAL FEATURES OF GIACCIO ARE ESPECIALLY PERTINENT IN THE PRESENT
CONTEXT.  FIRST, THERE WERE NO FIRST AMENDMENT IMPLICATIONS IN EITHER
THE CONDUCT CHARGED OR THAT IN WHICH GIACCIO CLAIMED TO HAVE ENGAGED:
THE STATE'S EVIDENCE WAS TO THE EFFECT THAT GIACCIO HAD WANTONLY
DISCHARGED A FIREARM AT ANOTHER, IN VIOLATION OF PA. STAT. ANN., TIT.
18, SEC. 4716 (1963), AND GIACCIO'S DEFENSE WAS THE "THE FIREARM HE HAD
DISCHARGED WAS A STARTER PISTOL WHICH ONLY FIRED BLANKS."  382 U.S.,AT
400.  SECOND, WE WERE NOT PRESENTED WITH A DEFENDANT WHO HAD BEEN
CONVICTED FOR CONDUCT HE COULD NOT HAVE KNOWN WAS UNLAWFUL.  WHETHER OR
NOT GIACCIO'S ACTIONS FELL WITHIN SEC. 4716, HIS CONDUCT WAS
UNQUESTIONABLY PUNISHABLE UNDER OTHER STATE LAWS, E.G., PA. STAT. ANN.,
TIT. 18, SEC. 4406 (1963).  FINALLY, IT IS WORTHY OF NOTE THAT IN
GIACCIO TWO MEMBERS OF THIS COURT EXPLICITLY SOUGHT TO BASE THE RESULT
UPON THE GROUND THAT, AS A MATTER OF SUBSTANTIVE DUE PROCESS, THE
STATES WERE FORBIDDEN TO IMPOSE THE COSTS OF PROSECUTION UPON AN
ACQUITTED DEFENDANT.  382 U.S.,AT 405 (CONCURRING OPINIONS OF STEWART
AND FORTAS, JJ.).  YET WE REFUSED TO PLACE DECISION ON ANY SUCH
GROUND.  WE HELD INSTEAD, CONSISTENTLY WITH OUR PRIOR DECISIONS, THAT
THE PROCEDURE FOR DETERMINING GIACCIO'S PUNISHMENT LACKED THE
SAFEGUARDS AGAINST ARBITRARY ACTION THAT ARE REQUIRED BY DUE PROCESS OF
LAW.  /15/ 

OUR DECISIONS APPLYING THE DUE PROCESS CLAUSE THROUGH THE DOCTRINE
OF UNCONSTITUTIONAL VAGUENESS, THEN, LEAD TO THE FOLLOWING
CONCLUSIONS.  FIRST, THE PROTECTION AGAINST ARBITRARY AND
DISCRIMINATORY ACTION EMBODIED IN THE DUE PROCESS CLAUSE REQUIRES THAT
STATE POWER BE EXERTED ONLY THROUGH MECHANISMS THAT ASSURE THAT
FUNDAMENTAL CHOICES AMONG COMPETING STATE POLICIES BE EXPLICITLY MADE
BY SOME RESPONSIBLE ORGAN OF THE STATE.  /16/  SECOND, THE CASES
SUGGEST THAT DUE PROCESS REQUIRES AS WELL THAT STATE PROCEDURES FOR
DECISION OF QUESTIONS THAT MAY HAVE ADVERSE CONSEQUENCES FOR AN
INDIVIDUAL NEITHER LEAVE ROOM FOR THE DEPRIVATION SUB SILENTIO OF THE
INDIVIDUAL'S FEDERALLY PROTECTED RIGHTS NOR UNDULY FRUSTRATE THE
FEDERAL JUDICIAL REVIEW PROVIDED FOR THE VINDICATION OF THOSE RIGHTS. 
THIS SECOND POINT IS EXPLICITLY MADE IN A NOT UNRELATED LINE OF CASES,
TO WHICH I NOW TURN. 

        B 

WHETHER THROUGH ITS OWN FORCE OR ONLY THROUGH THE APPLICATION OF
OTHER, SPECIFIC CONSTITUTIONAL GUARANTEES, THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT PROTECTS INDIVIDUALS FROM A NARROW CLASS OF
IMPERMISSIBLE EXERTIONS OF POWER BY THE STATES.  AS APPLIED TO THE
PROCEDURES WHEREBY ADMITTEDLY PERMISSIBLE STATE POWER IS EXERTED,
HOWEVER, THE DUE PROCESS CLAUSE HAS CONSISTENTLY BEEN GIVEN A WIDER
SCOPE.  "(OUR SYSTEM OF LAW HAS ALWAYS ENDEAVORED TO PREVENT EVEN THE
PROBABILITY OF UNFAIRNESS."  IN RE MURCHISON, 349 U.S. 133, 136
(1955).  THUS, WE HAVE NEVER SUGGESTED THAT EVERY JUDGE WHO HAS BEEN
THE TARGET OF CONTEMPTUOUS, PERSONAL ATTACKS BY LITIGANTS OR THEIR
ATTORNEYS IS INCAPABLE OF RENDERING A FAIR DECISION ON THE MERITS OF A
CONTEMPT CHARGE AGAINST SUCH PERSONS; BUT WE HAVE CONSISTENTLY HELD
THAT, EXCEPTING ONLY CASES OF URGENT NECESSITY, DUE PROCESS REQUIRES
THAT COMTEMPT CHARGES IN SUCH CASES BE HEARD BY A DIFFERENT JUDGE. 
MAYBERRY V. PENNSYLVANIA, 400 U.S. 455 (1971); IN RE MURCHISON, SUPRA.
AND IN TUMEY V. OHIO, 273 U.S. 510 (1927), WE DID NOT SUGGEST THAT
EVERY JUDGMENT RENDERED BY AN OFFICIAL WHO HAD A FINANCIAL STAKE IN THE
OUTCOME WAS IPSO FACTO THE PRODUCT OF BIAS.  PROCEEDING FROM A DIRECTLY
CONTRARY ASSUMPTION," WE NEVERTHELESS HELD THAT DUE PROCESS WAS
VIOLATED BY ANY "PROCEDURE WHICH WOULD OFFER A POSSIBLE TEMPTATION TO
THE AVERAGE MAN . . . NOT TO HOLD THE BALANCE NICE, CLEAR AND TRUE
BETWEEN THE STATE AND THE ACCUSED."  ID., AT 532.  IN JACKSON V. DENNO,
378 U.S. 368 (1964), ONE OF THE TWO GROUNDS ON WHICH WE STRUCK DOWN A
NEW YORK PROCEDURE THAT REQUIRED A JURY TO DETERMINE THE VOLUNTARINESS
OF A CONFESSION AT THE SAME TIME THAT IT DETERMINED HIS GUILT OF THE
CRIME CHARGED WAS THAT THE PROCEDURE CREATED AN IMPERMISSIBLE-- AND
VIRTUALLY UNREVIEWABLE-- RISK THAT THE JURY WOULD NOT BE ABLE TO
DISREGARD A CONFESSION THAT IT FELT WAS BOTH INVOLUNTARY AND TRUE. 
ID., AT 388-391.  SIMILARLY, IN A LONG LINE OF CASES BEGINNING WITH
LOVELL V. GRIFFIN, 303 U.S. 444 (1938), WE HAVE REPEATEDLY HELD THAT
DUE PROCESS IS VIOLATED BY STATE PROCEDURES FOR THE ADMINISTRATION OF
PERMIT SYSTEMS REGULATING THE PUBLIC EXERCISE OF FIRST AMENDMENT RIGHTS
IF THE PROCEDURE ALLOWS A PERMIT TO BE DENIED A PERMIT FOR ACTIVITY
WHICH THE STATE COULD NOT LAWFULLY PROHIBIT.  AND ONLY RECENTLY, IN
LOUISIANA V. UNITED STATES, 380 U.S. 145 (1965, WE WERE FACED WITH A
STATE PROCEDURE FOR DETERMINING VOTING QUALIFICATIONS THAT, IN THE
STATE'S OWN WORDS, VESTED "DISCRETION IN THE REGISTRARS OF VOTERS TO
DETERMINE THE QUALIFICATIONS OF APPLICANTS FOR REGISTRATION," BUT
IMPOSED "NO DEFINITE AND OBJECTIVE STANDARDS UPON REGISTRARS OF VOTERS
FOR THE ADMINISTRATION OF THE INTERPRETATION TEST."  ID., AT 152. 
AFTER QUOTING, WITH APPARENT APPROVAL, AN 1898 STATE CRITICISM OF A
SIMILAR PROCEDURE ON THE GROUND THAT THE "ARBITRARY POWER, LODGED WITH
THE REGISTRATION OFFICER, PRACTICALLY PLACES HIS DECISION BEYOND THE
PALE OF JUDICIAL REVIEW," IBID., WE NOTED AND ACCEPTED THE DISTRICT
COURT'S FINDING THAT "LOUISIANA . . . PROVIDES NO EFFECTIVE METHOD
WHEREBY ARBITRARY AND CAPRICIOUS ACTION BY REGISTRARS OF VOTERS MAY BE
PRECENTED OR REDRESSED."  IBID.  WE CONTINUED:     "THE APPLICANT
FACING A REGISTRAR IN LOUISIANA THUS HAS BEEN COMPELLED TO LEAVE HIS
VOTING FATE TO THAT OFFICIAL'S UNCONTROLLED POWER TO DETERMINE WHETHER
THE APPLICANT'S UNDERSTANDING OF THE FEDERAL OR STATE CONSTITUTION IS
SATISFACTORY.  . . . THE CHERISHED RIGHT OF PEOPLE IN A COUNTRY LIKE
OURS TO VOTE CANNOT BE OBLITERATED BY THE USE OF LAWS LIKE THIS, WHICH
LEAVE THE VOTING FATE OF A CITIZEN TO THE PASSING WHIM OR IMPULSE OF AN
INDIVIDUAL REGISTRAR.  MANY OF OUR CASES HAVE POINTED OUT THE
INVALIDITY OF LAWS SO COMPLETELY DEVOID OF STANDARDS AND RESTRAINTS." 
380 U.S.,AT 152-153.  ON THAT BASIS WE HELD THE LOUISIANA PROCEDURE FOR
DETERMINING THE QUALIFICATIONS OF PROSPECTIVE VOTERS TO BE A DENIAL OF
DUE PROCESS.  IBID.  /18/ 

DIVERSE AS THEY ARE, THESE CASES REST UPON COMMON GROUND.  THEY ALL
STAND INELUCTABLY FOR THE PROPOSITION THAT DUE PROCESS REQUIRES MORE OF
THE STATES THAN THAT THEY NOT EXERT STATE POWER IN IMPERMISSIBLE WAYS. 
SPECIFICALLY, THE RULE OF THESE CASES IS THAT STATE PROCEDURES ARE
INADEQUATE UNDER THE DUE PROCESS CLAUSE UNLESS THEY ARE DESIGNED TO
CONTROL ARBITRARY ACTION AND ALSO TO MAKE MEANINGFUL THE OTHERWISE
AVAILABLE MECHANISM FOR JUDICIAL REVIEW.  WE HAVE ELSEWHERE MADE THIS
LAST POINT EXPLICIT.  IN SPECHT V. PATTERSON, 386 U.S. 605 (1967), WE
HELD THAT DUE PROCESS IN COMMITMENT PROCEEDINGS, "WHETHER DENOMINATED
CIVIL OR CRIMINAL," ID., AT 608, REQUIRES "FINDINGS ADEQUATE TO MAKE
MEANINGFUL ANY APPEAL THAT IS ALLOWED."  ID., AT 610; SEE GARNER V.
LOUISIANA, 368 U.S. 157, 173 (1961).  AND IN JACKSON V. DENNO, SUPRA,
THE ALTERNATIVE GROUND ON WHICH WE STRUCK DOWN A NEW YORK PROCEDURE FOR
DETERMINING THE VOLUNTARINESS OF A CONFESSION BY SUBMITTING THAT
QUESTION TO THE JURY AT THE SAME TIME AS THE QUESTION OF GUILT WAS THAT
THE "ADMIXTURE OF RELIABILITY AND VOLUNTARINESS IN THE CONSIDERATIONS
OF THE JURY WOULD ITSELF ENTITLE A DEFENDANT TO FURTHER PROCEEDINGS IN
ANY CASE IN WHICH THE ESSENTIAL FACTS ARE DISPUTED, FOR WE CANNOT
DETERMINE HOW THE JURY RESOLVED THESE ISSUES AND WILL NOT ASSUME THAT
THEY WERE RELIABLY AND PROPERLY RESOLVED AGAINST THE ACCUSED."  378
U.S.,AT 387.  IN OTHER WORDS, DUE PROCESS FORBIDS THE STATES TO ADOPT
PROCEDURES THAT WOULD DEFEAT THE INSTITUTION OF FEDERAL JUDICIAL
REVIEW.  /19/ 

THE DEPTH TO WHICH THESE PRINCIPLES ARE EMBEDDED IN THE CONCEPT OF
DUE PROCESS IS EVIDENCED BY THE FACT THAT WE HAVE, ON OCCASION, APPLIED
THEM NOT MERELY TO RULE THAT A PARTICULAR STATE PROCEDURE IS OR IS NOT
PERMISSIBLE UNDER THE DUE PROCESS CLAUSE, BUT THAT A PARTICULAR,
SPECIFIC PROCEDURE IS REQUIRED BY DUE PROCESS.  WE HAVE REPEATEDLY
HELD, FOR EXAMPLE, THAT A GULTY PLEA AND ITS INEVITABLY ATTENDANT
WAIVERS OF FEDERALLY GUARANTEED RIGHTS ARE VALID ONLY IF THEY REPRESENT
A "VOLUNTARY AND INTELLIGENT CHOICE" ON THE PART OF THE DEFENDANT. 
NORTH CAROLINA V. ALFORD, 400 U.S. 25, 31 (1970).  THE VALIDITY OF A
GUILTY PLEA MAY BE TESTED ON FEDERAL HABEAS CORPUS, WHERE FACTS OUTSIDE
THE RECORD MAY BE PLEADED AND PROVED.  WALEY V. JOHNSTON, 316 U.S. 101
(1942).  WHILE RECOGNIZING THE EXISTENCE OF SUCH A REMEDY, WE HELD IN
BOYKIN V. ALABAMA, 395 U.S. 238 (1969), THAT DUE PROCESS REQUIRES A
RECORD "ADEQUATE FOR ANY REVIEW THAT MAY BE LATER SOUGHT," ID., AT 244,
AND DOES NOT PERMIT PROTECTION OF THE FEDERALLY GUARANTEED RIGHTS TO BE
RELEGATED TO "COLLATERAL PROCEEDINGS THAT SEEK TO PROBE MURKY
MEMORIES."  IBID.  ACCORDINGLY, WE HELD THAT DUE PROCESS REQUIRES A
STATE, IN ACCEPTING A PLEA OF GUILTY, TO MAKE A CONTEMPORANEOUS RECORD
ADEQUATE "TO SHOW THAT (THE DEFENDANT) HAD INTELLIGENTLY AND KNOWLINGLY
PLEADED GUILTY."  ID., AT 241.  AND ONLY LAST TERM, IN GOLDBERG V.
KELLY, 397 U.S. 254 (1970), WE HELD THAT BECAUSE A DECISION ON THE
WITHDRAWAL OF WELFARE BENEFITS MUST "REST SOLELY ON THE LEGAL RULES AND
EVIDENCE ADDUCED AT THE HEARING," ID., AT 271, DUE PROCESS REQUIRES
THAT THE DECISIONMAKER "DEMONSTRATE COMPLIANCE WITH THIS ELEMENTARY
REQUIREMENT" BY "STATING) THE REASONS FOR HIS DETERMINATION AND
INDICATING) THE THE EVIDENCE HE RELIED ON."  IBID.

        C 

IN MY VIEW, THE CASES DISCUSSED ABOVE ESTABLISH BEYOND PERADVENTURE
THE FOLLOWING PROPOSITIONS.  FIRST, DUE PROCESS OF LAW REQUIRES THE
STATES TO PROTECT INDIVIDUALS AGAINST THE ARBITRARY EXERCISE OF STATE
POWER BY ASSURING THAT THE FUNDAMENTAL POLICY CHOICES UNDERLYING ANY
EXERCISE OF STATE POWER ARE EXPLICITLY ARTICULATED BY SOME RESPONSIBLE
ORGAN OF STATE GOVERNMENT.  SECOND, DUE PROCESS OF LAW IS DENIED BY
STATE PROCEDURAL MECHANISMS THAT ALLOW FOR THE EXERCISE OF ARBITRARY
POWER WITHOUT PROVIDING ANY MEANS WHEREBY ARBITRARY ACTION MAY BE
REVIEWED OR CORRECTED.  THIRD, WHERE FEDERALLY PROTECTED RIGHTS ARE
INVOLVED DUE PROCESS OF LAW IS DENIED BY STATE PROCEDURES WHICH RENDER
INEFFICACIOUS THE FEDERAL JUDICIAL MACHINERY THAT HAS BEEN ESTABLISHED
FOR THE VINDICATION OF THOSE RIGHTS.  IF THERE IS ANY WAY IN WHICH
THESE PROPOSITIONS MUST BE QUALIFIED, IT IS ONLY THAT IN SOME
CIRCUMSTANCES THE IMPOSSIBILITY OF CERTAIN PROCEDURES MAY BE SUFFICIENT
TO PERMIT STATE POWER TO BE EXERCISED NOTWITHSTANDING THEIR ABSENCE. 
CF. CARROLL V. PRESIDENT AND COMMISSIONERS, 393 U.S. 175, 182, 184-185
(1968).  BUT THE JUDGMENT THAT A PROCEDURAL SAFEGUARD OTHERWISE
REQUIRED BY THE DUE PROCESS CLAUSE IS IMPOSSIBLE OF APPLICATION IN
PARTICULAR CIRCUMSTANCES IS NOT ONE TO BE LIGHTLY MADE.  THIS IS ALL
THE MORE SO WHEN, AS IN THE PRESENT CASES, THE ARGUMENT OF
IMPOSSIBILITY IS NOT MADE BY THE PARTIES BEFORE US, BUT ONLY BY THIS
COURT.  BEFORE WE CONCLUDE THAT CAPITAL SENTENCING IS INEVITABLY A
MATTER OF SUCH COMPLEXITY THAT IT CANNOT BE CARRIED OUT IN CONSONANCE
WITH THE FUNDAMENTAL REQUIREMENTS OF DUE PROCESS, WE SHOULD AT THE VERY
LEAST EXAMINE THE MECHANISMS DEVELOPED IN NOT INCOMPARABLE SITUATIONS
AND PREVIOUSLY APPROVED BY THIS COURT.  THEREFORE, BEFORE EXAMINING THE
SPECIFIC CAPITAL SENTENCING PROCEDURES AT ISSUE IN THESE CASES IN LIGHT
OF THE DUE PROCESS CLAUSE, I AM COMPELLED TO DISCUSS BOTH THE
MECHANISMS AVAILABLE FOR THE CONTROL OF ARBITRARY ACTION AND THE NATURE
OF THE CAPITAL SENTENCING PROCESS. 

II 

A LEGISLATURE THAT HAS DETERMINED THAT THE STATE SHOULD KILL SOME
BUT NOT ALL OF THE PERSONS WHOM IS HAS CONVICTED OF CERTAIN CRIMES MUST
INEVITABLY DETERMINE HOW THE STATE IS TO DISTINGUISH THOSE WHO ARE TO
BE KILLED FROM THOSE WHO ARE NOT.  DEPENDING ULTIMATELY ON THE
LEGISLATURE'S NOTION OF WISE PENOLOGICAL POLICY, THAT DISTINCTION MAY
BE HARD OR EASY TO MAKE.  /20/  BUT CAPITAL SENTENCING IS NOT THE ONLY
DIFFICULT QUESTION WITH WHICH LEGISLATURES HAVE EVER BEEN FACED.  AT
LEAST SINCE WAYMAN V. SOUTHARD, 10 WHEAT.  1 (1825), WE HAVE RECOGNIZED
THAT THE CONSTITUTION DOES NOT PROHIBIT CONGRESS FROM DEALING WITH SUCH
QUESTIONS BY DELEGATING TO OTHERS TH RESPONSIBILITY FOR THEIR
DETERMINATION.  IT IS NOT MY PURPOSE TO TRACE IN DETAIL EITHER THE
SOURCES AND SCOPE OF THE DELEGATION DOCTRINE OR THE EXTENT TO WHICH IT
IS APPLICABLE TO THE STATES THROUGH THE DUE PROCESS CLAUSE.  IT IS
SUFFICIENT TO STATE THE IN MY VIEW, WHATEVER THE SOURCES OF THE
DOCTRINE, /21/  ITS APPLICATION TO THE STATES AS A MATTER OF DUE
PROCESS /22/  IS MERELY A REFLECTION OF THE FUNDAMENTAL PRINCIPLES OF
DUE PROCESS ALREADY DISCUSSED:  IN MY BROTHER HARLAN'S WORDS, THE
DELEGATION DOCTRINE 

"INSURES THAT THE FUNDAMENTAL POLICY DECISIONS IN OUR SOCIETY WILL
BE MADE NOT BY AN APPOINTED OFFICIAL BUT BY THE BODY IMMEDIATELY
RESPONSIBLE TO THE PEOPLE (AND) PREVENTS JUDICIAL REVIEW FROM BECOMING
MERELY AN EXERCISE AT LARGE BY PROVIDING THE COURTS WITH SOME MEASURE
AGAINST WHICH TO JUDGE THE OFFICIAL ACTION THAT HAS BEEN CHALLENGED." 
ARIZONA V. CALIFORNIA, 373 U.S. 546, 626 (1963) (DISSENTING IN PART). 
/23/ MY INTENTION HERE IS MERELY TO PROVIDE AN ADMITTEDLY BRIEF SKETCH
OF THE SEVERAL MECHANISMS THAT CONGRESS HAS EMPLOYED TO ASSURE THAT
EVEN WITH REGARD TO THE MOST COMPLEX AND INTRACTABLE PROBLEMS,
DELEGATION BY CONGRESS OF THE POWER TO MAKE LAW HAS BEEN SUBJECT TO
CONTROLS THAT LIMIT THE POSSIBILITY OF ARBITRARY ACTION AND THAT ASSURE
THAT CONGRESS RETAINS THE RESPONSIBILITY FOR ULTIMATE DECISION OF
FUNDAMENTAL QUESTIONS OF NATIONAL POLICY.  WITH THESE MECHANISMS IN
MIND, I INTEND BRIEFLY TO DISCUSS THE CONSIDERATIONS RELEVANT TO THE
PROBLEM OF CAPITAL SENTENCING WITH AN EYE TO THE QUESTION WHETHER IT
MAY RESPONSIBLY BE SAID THAT ALL OF THESE MECHANISMS ARE IMPOSSIBLE OF
APPLICATION BY THE STATES TO THE CAPITAL SENTENCING PROCESS. 

        A 

AT THE OUTSET, CANDOR COMPELS RECOGNITION THAT OUR CASES REGARDING
THE DELEGATION BY CONGRESS OF LAWMAKING POWER DO NOT ALWAYS SAY WHAT
THEY SEEM TO MEAN.  KENNETH CULP DAVIS HAS BEEN INSTRUMENTAL IN
POINTING OUT THE "UNREALITY"  /24/  OF JUDICIAL LANGUAGE APPEARING TO
DIRECT ATTENTION SOLELY TO THE PRESENCE OR ABSENCE OF STATUTORY
"STANDARDS"  /25/  OR AN "INTELLIGIBLE PRINCIPLE"  /26/  BY WHICH
DELEGATED AUTHORITY MAY BE GUIDED.  SEE GENERALLY 1 K.DAVIS,
ADMINISTRATIVE LAW TREATISE 2.01 TO 2.05 (1958).  IN HIS WORDS, 

"THE DIFFICULTY AND COMPLEXITY OF SOME TYPES OF POLICY DETERMINATION
REQUIRES THAT THE LEGISLATIVE BODY SHOULD BE ALLOWED TO PROVIDE FOR THE
ADMINISTRATIVE WORKING OUT OF BASIC POLICY THROUGH THE USE OF
SPECIALIZED TRIBUNALS WHICH USE THE COMMON-LAW METHOD OF CONCENTRATING
UPON ONE PARTICULAR, NARROW, AND CONCRETE PROBLEM AT A TIME.  THE
PROTECTION OF ADVANCE LEGISLATIVE GUIDANCE IS OF LITTLE OR NO
CONSEQUENCE AS COMPARED WITH THE PROTECTION THAT CAN AND SHOULD BE
PROVIDED THROUGH ADEQUATE PROCEDURAL SAFEGUARDS, APPROPRIATE
LEGISLATIVE SUPERVISION OR REEXAMINATION, AND THE ACCUSTOMED SCOPE OF
JUDICIAL REVIEW. 

    .          .          .          . 

"THE PROTECTION THAT COMES FROM A HEARING WITH A DETERMINATION ON
THE RECORD, FROM SPECIFIC FINDINGS AND REASONS, FROM OPPORTUNITY FOR
OUTSIDE CRITICS TO COMPARE ON CASE WITH ANOTHER, FROM CRITICAL
SUPERVISION BY THE LEGISLATIVE AUTHORITY . . . AND FROM JUDICIAL REVIEW
- ALL THIS IS LIKELY TO BE SUPERIOR TO PROTECTION AFFORDED BY
DEFINITENESS OF STANDARDS."  ID., SECS. 2.05, AT 98-99, 2.09, AT 111
(1958).  /27/ THE POINT MADE BY PROFESSOR DAVIS HAD, I THINK, OFTEN
BEEN RECOGNIZED BY CONGRESS.  IT IS NOT SURPRISING, THEN, TO SEE THAT
IN MANY INSTANCES CONGRESS HAS FOCUSED ITS ATTENTION MUCH LESS UPON THE
DEFINITION OF PRECISE STATUTORY STANDARDS THAN ON THE CREATION OF OTHER
MEANS ADEQUATE TO ASSURE THAT POLICY IS SET IN ACCORDANCE WITH
CONGRESSIONAL DESIRES AND THAT INDIVIDUALS ARE TREATED ACCORDING TO
UNIFORM PRINCIPLES RATHER THAN ADMINISTRATIVE WHIM.  VIEWED IN THIS
LIGHT, OUR CASES MAY BE CONSIDERED AS ILLUSTRATING AT LEAST THREE
LEGISLATIVE TECHNIQUES. 

FIRST.  IN A NUMBER OF INSTANCES, CONGRESS HAD IN FACT UNDERTAKEN TO
REGULATE EVEN RATHER COMPLEX QUESTIONS BY THE PRESCRIPTION OF
RELATIVELY SPECIFIC STANDARDS.  IT IS CERTAINLY AN OPEN QUESTION
WHETHER DETERMINING WHAT CONDUCT SHOULD BE SUBJECT TO CRIMINAL
SANCTIONS IS ANY MORE DIFFICULT THAN DETERMINING WHAT THOSE SANCTIONS
SHOULD BE; YET CONGRESS AND THE STATE LEGISLATURES AS WELL HAVE
REGULARLY PASSED CRIMINAL CODES EMBODYING, IN THE MAIN, STATUTES
DIRECTED AT SPECIFICALLY AND NARROWLY DEFINED CONDUCT.  /28/
SIMILARLY, THE CONGRESS RESOLVED WHAT WAS CERTAINLY ONE OF THE MOST
DELICATE AND COMPLEX QUESTIONS BEFORE IT IN RECENT YEARS-- THE EXTENT,
IF ANY, TO WHICH THE NATIONAL INTEREST WARRANTED FEDERAL REGULATION OF
ORGANIZATIONS, INCLUDING POLITICAL PARTIES, INFILTRATED BY, DOMINATED
BY, OR SUBJECT TO FOREIGN CONTROL-- NOT BY LEAVING THE MATTER TO ANYONE
ELSE BUT BY DEFINING WITH CAREFUL PARTICULARITY THE CHARACTERISTICS
THAT WERE REQUIRED BEFORE AN ORGANIZATION COULD BE SUBJECT TO SUCH
REGULATION.  SEE 50 U.S.C. 782(3), (4), (4A), (5) (1964 ED., SUPP. V);
COMMUNIST PARTY V. SACB, 367 U.S. 1 (1961).  CONGRESSIONAL RESPONSE TO
THE COMPLEX AND INTRACTABLE PROBLEMS OF THE DEPRESSION ERA OCCASIONALLY
TOOK A SIMILAR FORM.  THUS THE ACT APPROVED IN UNITED STATES V. ROCK
ROYAL CO-OP., 307 U.S. 533 (1939), STATED A CONGRESSIONAL POLICY TO
RESTORE PARITY PRICES IN MILK, DEFINED THE TERM, AND DELEGATED TO THE
SECRETARY OF AGRICULTURE ONLY IN THE ACT, COMMANDING MINIMUM PRICES TO
BE DETERMINED IN ACCORDANCE WITH PRESCRIBED STANDARDS, TO BE APPLICABLE
IN AREAS WHERE PRICES HAD FALLEN BELOW THE LIMIT SET BY CONGRESS.  SEE
ID., AT 575-577. 

SECOND.  IN OTHER CIRCUMSTANCES, CONGRESS HAS GRANTED TO OTHERS THE
POWER TO PRESCRIBE FIXED RULES TO GOVERN FUTURE ACTIVITY AND
ADJUDICATIONS.  SUCH DELEGATIONS OF POWER PERMIT THE LEGISLATURE TO
DECLARE THE END SOUGHT AND LEAVE TECHNICAL MATTERS IN THE HANDS OF
EXPERTS, /29/  OR TO LEAVE TO OTHERS THE TASK OF DEVISING SPECIFIC
RULES TO CARRY OUT CONGRESSIONAL POLICY IN A VARIETY OF FACTUAL
SITUATIONS.  /30/  WHERE AS IS OFTEN THE CASE, EVEN MAJOR POLICY
DECISIONS MAY TURN ON SPECIALIZED KNOWLEDGE AND EXPERTISE BEYOND
LEGISLATIVE KEN, DELEGATION OF RULEMAKING POWER MAY BE MADE UNDER BROAD
STANDARDS TO A BODY CHOSEN FOR FAMILIARITY WITH THE SUBJECT MATTER TO
BE REGULATED.  /31/  BUT ENTIRELY ASIDE FROM WHATEVER PROCEDURAL
PROTECTIONS MAY BE AFFORDED INTERESTED PARTIES PRIOR TO THE
PROMULGATION OF ADMINISTRATIVE RULES, /32/  THE VERY NATURE OF THE
RULEMAKING PROCESS PROVIDES SIGNIFICANT GUARANTEES BOTH OF EVENHANDED
TREATMENT AND OF ULTIMATE LEGISLATIVE SUPERVISION OF FUNDAMENTAL POLICY
QUESTIONS.  SIGNIFICANTLY, WE HAVE UPHELD DELEGATIONS OF RULEMAKING
POWER WITHOUT STANDARDS TO GUIDE ITS EXERCISE ONLY IN TWO NARROWLY
LIMITED CLASSES OF CASES.  /33/  WE HAVE OTHERWISE SEARCHED THE
STATUTE, THE LEGISLATIVE HISTORY, AND THE CONTECT IN WHICH THE
REGULATION WAS ENACTED IN ORDER TO DISCERN AND ARTICULATE A LEGISLATIVE
POLICY.  /34/  THE POINT IS NOT WHETHER AN INTELLIGIBLE LEGISLATIVE
POLICY WAS OR WAS NOT CORRECTLY INFERRED FROM THE STATUTE.  THE POINT
IS THAT SUCH A POLICY, ONCE EXPRESSLY ARTICULATED, NOT ONLY SERVES TO
GUIDE SUBSEQUENT ADMINISTRATIVE AND JUDICIAL ACTION BUT ALSO PROVIDES A
BASIS UPON WHICH THE LEGISLATURE MAY DETERMINE WHETHER POWER IS BEING
EXERCISED IN ACCORDANCE WITH ITS WILL.  /35/  WHERE NO INTELLIGIBLE
RESOLUTION OF FUNDAMENTAL POLICY QUESTIONS CAN BE DISCERNED FROM A
STATUTE OR JUDICIAL DECISIONS, THE RULEMAKING PROCESS ITSELF SERVES TO
MAKE EXPLICIT THE AGENCY'S RESOLUTION OF THESE QUESTIONS, THUS ALLOWING
FOR MEANINGFUL LEGISLATIVE SUPERVISION, /36/  AS WELL AS PROVIDING
BASES BOTH FOR JUDICIAL REVIEW OF AGENCY ACTION SUPPOSEDLY PREMISED ON
THE RULE /37/  AND FOR REFINEMENT OF AN OLD RULE IN LIGHT OF EXPERIENCE
GAINED IN ITS ADMINISTRATION. 

THIRD.  PERHAPS THE MOST COMMON LEGISLATIVE TECHNIQUE FOR DEALING
WITH COMPLEX QUESTIONS THAT WILL ARISE IN A MYRIAD OF FACTUAL CONTEXTS
HAS BEEN THE DELEGATION TO ANOTHER GROUP OF LAWMAKING POWER WHICH MAY
BE EXERCISED EITHER THROUGH RULEMAKING OR THE ADJUDICATION OF
INDIVIDUAL CASES, WITH CHOICE BETWEEN THE TWO LEFT TO THE AGENCY'S
JUDGMENT.  SUCH SCHEMES, WHILE ALLOWING BROAD FLEXIBILITY FOR THE
WORKING OUT OF POLICY ON A CASE-BY-CASE BASIS, NEVERTHELESS HAVE
INVARIABLY PROVIDED SUBSTANTIAL PROTECTIONS TO INSURE AGAINST ARBITRARY
ACTION AND TO GUARANTEE THAT UNDERLYING QUESTIONS OF POLICY ARE
CONSIDERED AND RESOLVED.  AS WITH THE DELEGATION SIMPLY OF RULEMAKING
POWER, WE HAVE OFTEN FOUND SUBSTANTIAL GUIDANCE IN THE LANGUAGE AND
HISTORY OF THE GOVERNING STATUTE.  NEW YORK CENTRAL SECURITIES CORP. V.
UNITED STATES, 287 U.S. 12 (1932); RADIO COMMISSION V. NELSON BROS.
CO., 289 U.S. 266 (1933); SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310
U.S. 381 (1940).  AGENCY ACTION UNDER SUCH DELEGATIONS MUST TYPICALLY
BE PREMISED UPON AN EXPLANATION OF BOTH THE FINDINGS AND REASONS FOR A
GIVEN DECISION, E.G., 5 U.S.C. 557(C)(3) (1964 ED., SUPP. V), A
REQUIREMENT WE HAVE HELD TO BE FAR MORE THAN EMPTY FORMALITY.  SEC V.
CHENERY CORP., 318 U.S. 80 (1943); PHELPS DODGE CORP. V. NLRB, 313 U.S.
177, 196-197 (1941).  THE REGULAR COURSE OF ADJUDICATION BY A
CONTINUING BODY REQUIRED TO EXPLAIN THE REASONING UPON WHICH ITS
DECISIONS ARE BASED RESULTS IN THE ACCUMULATION OF A BODY OF PRECEDENT
FROM WHICH, OVER TIME, GENERAL PRINCIPLES MAY BE DEDUCED.  SEE, E.G.,
THE HISTORY OF THE FEDERAL COMMUNICATIONS COMMISSION'S "FAIRNESS
DOCTRINE," TRACED IN RED LION BROADCASTING CO. V. FCC, 395 U.S. 367,
375-379 (1969).  WE HAVE OFTEN NOTED THE IMPORTANCE OF ADMINISTRATIVE
OR JUDICIAL REVIEW IN PROVIDING A CHECK ON THE EXERCISE OF ARBITRARY
POWER, MULFORD V. SMITH, 307 U.S. 38, 49 (1939); AMERICAN POWER & LIGHT
CO. V. SEC, 329 U.S. 90, 105 (1946), AND WE HAVE MADE CLEAR THAT
JUDICIAL REVIEW IS DESIGNED TO REINFORCE INTERNAL PROTECTIONS AGAINST
ARBITRARY OR UNCONSIDERED ACTION WHILE LEAVING QUESTIONS OF POLICY TO
THE AGENCY OR THE CONGRESS.  THUS WE HAVE WITHHELD APPROVAL FROM AGENCY
ACTION UNSUPPORTED BY AN INDICATION OF THE REASONS FOR THAT ACTION,
PHELPS DODGE CORP. V. NLRB, SUPRA; WHERE THE REASONS ARTICULATED WERE
IMPROPER, SICURELLA V. UNITED STATES, 348 U.S. 385 (1955), EVEN THOUGH
THE RECORD MIGHT WELL SUPPORT IDENTICAL ACTION TAKEN FOR DIFFERENCE
REASONS, SEC V. CHENERY CORP., SUPRA; WHERE ADMINISTRATIVE EXPERTISE
RELEVANT TO THE SOLUTION OF A PROBLEM HAD NEVER BEEN BROUGHT TO BEAR
UPON IT, FCC V. RCA COMMUNICATIONS, INC., 346 U.S. 86, 91-92 (1953);
WHERE AN APPARENT CONFLICT IN ADMINISTRATIVE RATIONALES HAD NEVER BEEN
EXPLAINED BY THE AGENCY, BARRETT LINE, INC. V. UNITED STATES, 326 U.S.
179 (1945); AND WHERE A CHANGE IN AGENCY POLICY HAD TAKEN PLACE AFTER
THE PARTICULAR ADJUDICATION CONCERNED, NLRB V. GISSEL PACKING CO., 395
U.S. 575, 615-616 (1969). 

COMBINATION OF RULEMAKING AND ADJUDICATORY POWERS HAS PROVED A
PARTICULARLY USEFUL TOOL IN SITUATIONS WHERE PRESCRIPTION OF DETAILED
STANDARDS IN THE FIRST INSTANCE HAS BEEN DIFFICULT OR IMPOSSIBLE FOR
THE CONGRESS, YET THE VARIETY OF FACTUAL SITUATIONS HAS RENDERED
PARTICULARLY IMPORTANT PROTECTION AGAINST RANDOM OR ARBITRARY
DECISIONS.  THUS IN LICHTER V. UNITED STATES, 334 U.S. 742 (1948), /38/
THIS COURT DEALTH WITH THE PROVISIONS OF THE ORIGINAL RENEGOTIATION
ACT, PASSED IN APRIL 1942, WHICH DIRECTED VARIOUS ADMINISTRATIVE
OFFICIALS TO PROCEED WITH COMPULSORY "RENEGOTIATION" OF CONTRACTS THAT
HAD RESULTED IN "EXCESSIVE PROFITS."  THE ACT AS ORIGINALLY PASSED
ATTEMPTED NO DEFINITION OF SUCH PROFITS; WITHIN FOUR MONTHS, HOWEVER,
ADMINISTRATIVE PRACTICE HAD SOLIDIFIED ABOUT A LIST OF SIX FACTORS TO
BE CONSIDERED IN DETERMINING WHETHER PROFITS WERE EXCESSIVE; SLIGHTLY
MORE THAN TWO MONTHS LATER, THESE FACTORS WERE ADOPTED BY CONGRESS IN
AN AMENDMENT TO THE ACT.  IN UPHOLDING THE ORIGINAL ACT AGAINST A CLAIM
OF EXCESSIVE DELEGATION, WE STRESSED BOTH THE RAPID DEVELOPMENT OF
GENERALLY APPLICABLE STANDARDS, ID., AT 766, 769, 771, 773-774, 778,
783, AND THE AVAILABILITY OF JUDICIAL REVIEW TO CHECK ARBITRARY OR
INCONSISTENT ADMINISTRATIVE ACTION.  ID., AT 770, 771, 786-787. 

        B 

THE NEXT QUESTION IS WHETHER THERE IS ANYTHING INHERENT IN THE
NATURE OF CAPITAL SENTENCING THAT MAKES IMPOSSIBLE THE APPLICATION OF
ANY OR ALL OF THE MEANS THAT HAVE BEEN ELSEWHERE DEVISED TO CHECK
ARBITRARY ACTION.  I THINK IT IS FAIR TO SAY THAT THE COURT HAS
PROVIDED NO EXPLANATION FOR ITS CONCLUSION THAT CAPITAL SENTENCING IS
INHERENTLY INCAPABLE OF RATIONAL TREATMENT.  INSTEAD, IT RELIES
PRIMARILY ON THE REPORT OF THE (BRITISH) ROYAL COMMISSION ON CAPITAL
PUNISHMENT, WHICH REACHES CONCLUSIONS SUBSTANTIALLY IDENTICAL WITH THE
FOLLOWING URGED IN 1785 BY ARCHDEACON WILLIAM PALEY TO JUSTIFY
ENGLAND'S "BLOODY CODE" OF MORE THAN 250 CAPITAL CRIMES: 

"(THE SELECTION OF PROPER OBJECTS FOR CAPITAL PUNISHMENT PRINCIPALLY
DEPENDS UPON CIRCUMSTANCES, WHICH, HOWEVER EASY TO PERCEIVE IN EACH
PARTICULAR CASE AFTER THE CRIME IS COMMITTED, IT IS IMPOSSIBLE TO
ENUMERATE OR DEFINE BEFOREHAND; OR TO ASCERTAIN, HOWEVER, WITH THAT
EXACTNESS, WHICH IS REQUISITE IN LEGAL DESCRIPTIONS.  HENCE, ALTHOUGH
IT BE NECESSARY TO FIX, BY PRECISE RULES OF LAW, THE BOUNDARY ON ONE
SIDE . . . YET THE MITIGATION OF PUNISHMENT . . . MAY, WITHOUT DANGER,
BE INTRUSTED TO THE EXECUTIVE MAGISTRATE, WHOSE DISCRETION WILL OPERATE
UPON THOSE NUMEROUS, UNFORESEEN, MUTABLE AND INDEFINITE CIRCUMSTANCES,
BOTH OF THE CRIME AND THE CRIMINAL, WHICH CONSTITUTE OR QUALIFY THE
MALIGNITY OF EACH OFFENCE.  . . . FOR IF JUDGMENT OF DEAHT WERE
RESERVED FOR ONE OR TWO SPECIES OF CRIMES ONLY . . . CRIMES MIGHT OCCUR
OF THE MOST DANGEROUS EXAMPLE, AND ACCOMPANIED WITH CIRCUMSTANCES OF
HEINOUS AGGRAVATION, WHICH DID NOT FALL WITHIN ANY DESCRIPTION OF
OFFENCES THAT THE LAWS HAD MADE CAPITAL, AND WHICH, CONSEQUENTLY, COULD
NOT RECEIVE THE PUNISHMENT THEIR OWN MALIGNITY AND THE PUBLIC SAFETY
REQUIRED.  . . . 

     "THE LAW OF ENGLAND IS CONSTRUCTED UPON A DIFFERENT AND A

  BETTER POLICY.  BY THE NUMBER OF STATUTES CREATING CAPITAL

  OFFENCES, IT SWEEPS INTO THE NET EVERY CRIME, WHICH UNDER ANY

  POSSIBLE CIRCUMSTANCES MAY MERIT THE PUNISHMENT OF DEATH:  BUT,

  WHEN THE EXECUTION OF THIS SENTENCE COMES TO BE DELIBERATED UPON,

  A SMALL PROPORTION OF EACH CLASS ARE SINGLED OUT, THE GENERAL

  CHARACTER, OR THE PECULIAR AGGRAVATIONS OF WHOSE CRIMES, RENDER

  THEM FIT EXAMPLES OF PUBLIC JUSTICE.  . . . THE WISDOM AND

  HUMANITY OF THIS DESIGN FURNISH A JUST EXCUSE FOR THE

  MULTIPLICITY OF CAPITAL OFFENCES, WHICH THE LAWS OF ENGLAND ARE

  ACCUSED OF CREATING BEYOND THOSE OF OTHER COUNTRIES."  W. PALEY,

  PRINCIPLES OF MORAL AND POLITICAL PHILOSOPHY 399-401 (6TH

  AMER.  ED. 1810). 

SIGNIFICANTLY, THE COURT NEGLECTS TO MENTION THAT THE RECOMMENDATIONS
OF THE ROYAL COMMISSION ON CAPITAL PUNISHMENT FOUND LITTLE MORE FAVOR
IN ENGLAND THAT ARCHDEACON PALEY'S.  FOR THE "BRITISH HAVE BEEN
UNWILLING TO EMPOWER EITHER COURTS OR JURIES TO DECIDE ON LIFE OR
DEATH, INSISTING THAT DEATH SHOULD BE THE SENTENCE OF THE LAW AND NOT
OF THE TRIBUNAL."  SYMPOSIUM ON CAPITAL PUNISHMENT, 7 N.Y.L.F. 249, 253
(1961) (H. WECHSLER).  BEYOND THE ROYAL COMMISSION'S REPORT, THE COURT
SUPPORTS ITS CONCLUSIONS ONLY BY REFERRING TO THE STANDARDS PROPOSED IN
THE MODEL PENAL CODE /39/  AND JUDGING THEM LESS THAN PERFECT.  THE
COURT NEGLECTS TO EXPLAIN WHY THE IMPOSSIBILITY OF PERFECT STANDARDS
JUSTIFIES MAKING NO ATTEMPT WHATSOEVER TO CONTROL LAWLESS ACTION.  IN
THIS CONTEXT THE WORDS OF MR. JUSTICE FRANKFURTER ARE INSTRUCTIVE: 

"IT IS NOT THIS COURT TO FORMULATE WITH PARTICULARITY THE
(STANDARDS) WHICH WOULD SATISFY THE FOURTEENTH AMENDMENT.  NO DOUBT,
FINDING A WANT OF SUCH STANDARDS PRESUPPOSES SOME CONCEPTION OF WHAT IS
NECESSARY TO MEET THE CONSTITUTIONAL REQUIREMENT WE DRAW FROM THE
FOURTEENTH AMENDMENT.  BUT MANY A DECISION OF THIS COURT RESTS ON SOME
INARTICULATE MAJOR PREMISE AND IS NONE THE WORSE FOR IT.  A STANDARD
MAY BE FOUND INADEQUATE WITHOUT THE NECESSITY OF EXPLICIT DELINEATION
OF THE STANDARDS THAT WOULD BE ADEQUATE, JUST AS DOGGEREL MAY BE FELT
NOT TO BE POETRY WITHOUT THE NEED OF WRITING AN ESSAY ON WHAT POETRY
IS."  NIEMOTKO V. MARYLAND, 340 U.S.,AT 285 (CONCURRING IN RESULT). 

BUT, ALTHOUGH I FIND THE COURT'S DISCUSSION INADEQUATE, THERE
REMAINS THE QUESTION WHETHER CAPITAL SENTENCING IS INHERENTLY INCAPABLE
OF BEING CARRIED OUT UNDER PROCEDURES THAT PROVIDE THE SAFEGUARDS
NECESSARY TO PROTECT AGAINST ARBITRARY DETERMINATIONS.  I THINK NOT.  I
REACH THIS CONCLUSION FOR THE FOLLOWING REASONS. 

FIRST.  IT IS IMPORTANT AT THE OUTSET TO RECOGNIZE THAT TWO SEPARATE
QUESTIONS ARE INVOLVED.  THE FIRST QUESTION IS WHAT ENDS ANY GIVEN
STATE SEEKS TO ACHIEVE BY IMPOSING THE DEATH PENALTY.  THE SECOND
QUESTION IS WHETHER THOSE ENDS WILL OR WILL NOT BE SERVED IN ANY GIVEN
CASE.  THE FIRST QUESTION REQUIRES DETERMINATION OF THE PENOLOGICAL
POLICY ADOPTED BY THE STATE IN CHOOSING TO KILL SOME OF ITS CONVICTED
CRIMINALS.  /40/  THE SECOND QUESTION REQUIRES THAT THE RELEVANT FACTS
IN ANY PARTICULAR CASE BE DETERMINED, AND THAT THE STATE'S PENOLOGICAL
POLICY BE APPLIED TO THOSE FACTS. 

SECOND.  IT IS LIKEWISE IMPORTANT TO BEAR IN MIND THAT THE
COMPLEXITY OF CAPITAL SENTENCING IN ANY PARTICULAR JURISDICTION IS
INEVITABLY A FUNCTION OF THE PENOLOGICAL POLICY TO BE APPLIED.  IT IS
NOT, INHERENTLY, A DIFFICULT QUESTION.  THUS, IF A STATE SHOULD
DETERMINE TO KILL THOSE FIRST-DEGREE MURDERERS WHO HAVE BEEN PREVIOUSLY
CONVICTED OF MURDER, AND ONLY THOSE PERSONS, THE SENTENCING
DETERMINATION WOULD ORDINARILY BE A RATHER SIMPLE ONE.  /41/  ON THE
OTHER HAND, IF A STATE SHOULD DETERMINE TO EXCLUDE ONLY THOSE FIRST
DEGREE MURDERERS WHO CANNOT BE REHABILITATED, IT IS PROBABLY SAFE TO
ASSUME THAT THE QUESTION OF PROPER SENTENCING UNDER SUCH A POLICY WOULD
BE A COMPLEX ONE INDEED.  IT SHOULD BE BORNE IN MIND THAT EITHER OF
THESE POLICIES-- OR A HOST OF OTHERS-- MAY HAVE BEEN APPLIED IN THE
CASES BEFORE US.  /42/ 

THIRD.  THIS IS NEITHER THE TIME NOR THE PLACE FOR AN ESSAY ON THE
PURPOSES OF CRIMINAL PUNISHMENT.  YET SOME DISCUSSION MUST BE
VENTURED.  WITHOUT INDICATING ANY JUDGMENT AS TO THEIR PROPRIETY-- AND
WITHOUT INTENDING TO SUGGEST THAT NO OTHERS MAY EXIST-- IT IS APPOSITE
TO NOTE THAT THE INTERESTS MOST OFTEN DISCUSSED IN CONNECTION WITH A
STATE'S CAPITAL SENTENCING POLICY ARE FOUR.  /43/  A STATE MAY SEEK TO
INFLICT RETRIBUTION ON A WRONGDOER, INFLICTING PUNISHMENT STRICTLY IN
PROPORTION TO THE OFFENSE COMMITTED.  IT MAY SEEK, BY THE INFLICTION OF
PUNISHMENT, TO DETER OTHERS FROM COMMITTING SIMILAR CRIMES.  IT MAY
CONSIDER AT LEAST SOME WRONGDOERS LIKELY TO COMMIT OTHER CRIMES, AND
THEREFORE SEEK TO PREVENT THESE HYPOTHETICAL FUTURE ACTS BY REMOVING
SUCH PERSONS FROM SOCIETY.  IT MAY SEEK TO REHABILITATE MOST OFFENDERS,
RESERVING CAPITAL PUNISHMENT ONLY FOR THOSE CASES WHERE IT JUDGES THE
LIKELIHOOD OF REHABILITATION TO BE LESS THAN A CERTAIN AMOUNT.  I MAY
ASSUME THAT MANY IF NOT ALL STATES CHOOSING TO KILL SOME CONVICTED
CRIMINALS INTEND THEREBY TO FURTHER MORE THAN ONE OF THE ENDS LISTED
ABOVE; AND I NEED NOT DOUBT THAT SOME STATES MAY CONSIDER OTHER
POLICIES AS WELL RELEVANT TO THE DECISION.  BUT I CAN SEE NO REASON
WHATSOEVER THAT A STATE MAY BE EXCUSED FROM DECLARING WHAT POLICIES IT
SEEKS TO FURTHER BY THE INFLICTION OF CAPITAL PUNISHMENT MERELY BECAUSE
IT MAY BE DIFFICULT TO DETERMINE HOW THOSE POLICIES SHOULD BE APPLIED
IN ANY PARTICULAR CASE.  IF ANYTHING, IT WOULD SEEM THAT THE DIFFICULTY
OF DECISION IN PARTICULAR CASES WOULD SUPPORT RATHER THAN WEAKEN THE
POINT THAT UNIFORM DECISIONMAKING REQUIRES THAT STATE POLICY BE
EXPLICITLY ARTICULATED.  YET THE COURT SEEMS SOMEHOW TO ASSUME THAT
JURORS WILL BE MOST LIKELY TO FULFILL THEIR FUNCTION AND CORRECTLY
APPLY A UNIFORM STATE POLICY IF THEY ARE NEVER TOLD WHAT THAT POLICY
IS.  IF THIS ASSUMPTION FINDS SUPPORT ANYWHERE THIS SIDE OF THE LOOKING
GLASS WORLD, I AM UNAWARE OF IT. 

FOURTH.  THIS IS NOT TO SAY, OF COURSE, THAT THERE MAY BE NO ROOM
WHATSOEVER FOR THE EXERCISE OF DISCRETION IN THE CAPITAL SENTENCING
PROCESS.  BUT DISCRETION, TO BE WORTHY OF THE NAME, IS NOT UNCHANNELED
JUDGMENT; IT IS JUDGMENT GUIDED BY REASON AND KEPT WITHIN BOUNDS. 
OTHERWISE, IN LORD CAMDEN'S WORDS, IT IS "THE LAW OF TYRANTS:  IT IS
ALWAYS UNKNOWN:  IT IS DIFFERENT IN DIFFERENT MEN:  IT IS CASUAL, AND
DEPENDS UPON CONSTITUTION, TEMPER, PASSION.-- IN THE BEST IT IS
OFTENTIMES CAPRICE:  IN THE WORST IT IS EVERY VICE, FOLLY, AND PASSION,
TO WHICH HUMAN NATURE IS LIABLE."  HINDSON AND KERSEY, CITED IN 8
HOW.ST.TR. 57 N. IT MAY WELL BE THAT ANY GIVEN STATE'S NOTIONS OF
PROPER PENOLOGICAL POLICY ARE SUCH THAT THE PRECISE AMOUNT OF WEIGHT TO
BE GIVEN TO ANY ONE FACTOR IN ANY PARTICULAR CASE WHERE DEATH IS A
POSSIBLE PENALTY IS INCAPABLE OF DETERMINATION BEFOREHAND.  BUT THAT IS
NO EXCUSE FOR REFUSING TO TELL THE DECISIONMAKER WHETHER HE SHOULD
CONSIDER A PARTICULAR FACTOR AT ALL.  PARTICULARLY WHERE DECISIONS ARE
MADE, NOT BY A CONTINUING BODY OF PERSONS, BUT BY GROUPS SELECTED TO
MAKE A SINGLE DECISION AND DISPERSED IMMEDIATELY AFTER THE EVENT, THE
LIKELIHOOD OF ANY CONSISTENCY WHATSOEVER IS VANISHINGLY SMALL. 
"PERFECTION MAY NOT BE DEMANDED OF LAW, BUT THE CAPACITY TO COUNTERACT
INEVITABLE . . . FRAILTIES IS THE MARK OF A CIVILIZED LEGAL
MECHANISM."  ROSENBERG V. UNITED STATES, 346 U.S. 273, 310 (1953)
(FRANKFURTER, J. DISSENTING).  THE POINT IS THAT EVEN IF A STATE'S
NOTION OF WISE CAPITAL SENTENCING POLICY IS SUCH THAT THE POLICY CANNOT
BE IMPLEMENTED THROUGH A FORMULA CAPABLE OF MECHANICAL APPLICATION--
SOMETHING WHICH, INCIDENTALLY, CANNOT BE KNOWN UNLESS AND UNTIL THE
STATE MAKES EXPLICIT PRECISELY WHAT THAT POLICY IS-- THERE IS NO REASON
THAT IT SHOULD NOT GIVE SOME GUIDANCE TO THOSE CALLED UPON TO RENDER
DECISION. 

FIFTH.  AS I HAVE ALREADY INDICATED, TYPICAL LEGISLATIVE RESPONSE TO
PROBLEMS DEEMED OF SUFFICIENT URGENCY THAT SOME SOLUTION MUST BE
IMPLEMENTED IMMEDIATELY, YET AT THE SAME TIME OF SUFFICIENT DIFFICULTY
AS TO BE INCAPABLE OF EXPLICIT STATUTORY SOLUTION, HAS BEEN TO PROVIDE
A MEANS WHEREBY THE LAW MAY BE USEFULLY DEVELOPED ON A CASE-BY-CASE
BASIS:  SYSTEMS ARE DEVISED WHEREBY EACH CASE MAY BE DECIDED UPON ITS
FACTS, WITH CONSISTENCY AND THE DEVELOPMENT OF MORE GENERAL PRINCIPLES
LEFT TO THE WISDOM THAT COMES FROM EXPERIENCE.  I AM SPEAKING, OF
COURSE, OF THE ADMINISTRATIVE PROCESS, WHERE THE BASIS AND REASONS FOR
ANY GIVEN DECISION ARE EXPLAINED AND SUBJECT TO REVIEW.  I SEE NO
REASON THAT CAPITAL SENTENCING IS IPSO FACTO UNSUITED TO SUCH
TREATMENT.  TO BEGIN WITH, IF A LEGISLATURE SHOULD DEEM ITS PRESENT
KNOWLEDGE INSUFFICIENT TO CREATE PROPER STANDARDS, IT IS HARD INDEED TO
SEE WHY ITS SOLUTION SHOULD NOT BE ONE THAT COULD ULTIMATELY LEAD TO
THE DEVELOPMENT OF SUCH STANDARDS.  CF. LICHTER V. UNITED STATES, 334
U.S. 742 (1948).  I SEE NO REASON THAT JURIES WHICH HAVE DETERMINED
THAT A GIVEN PERSON SHOULD BE KILLED BY THE STATE SHOULD BE UNABLE TO
EXPLAIN WHY THEY REACHED THAT DECISION, AND THE FACTS UPON WHICH IT WAS
BASED.  PERSONS DUBIOUS ABOUT THE ABILITY OF JURIES TO EXPLAIN THEIR
FINDINGS SHOULD CONSULT FLETCHER V. PECK, 6 CRANCH 87, 95-114 (1810)
(FINDINGS OF TRIAL JURY).  CF. FED. RULE CIV. PROC. 49.  EVEN IF IT BE
ASSUMED THAT JURIES ARE INCAPABLE OF MAKING SUCH EXPLANATIONS, WE HAVE
ALREADY HELD THAT SUCH INABILITY DOES NOT EXCUSE THE STATE FROM
PROVIDING A SENTENCING PROCESS THAT PROVIDES REASONS FOR THE DECISIONS
REACHED IF THOSE REASONS ARE OTHERWISE REQUIRED.  NORTH CAROLINA V.
PEARCE, 395 U.S. 711, 726 (1969). 

IN SUM, I SEE NO REASON WHATSOEVER TO BELIEVE THAT THE NATURE OF
CAPITAL SENTENCING IS SUCH THAT IT CANNOT BE SURROUNDED WITH THE
PROTECTIONS ORDINARILY AVAILABLE TO CHECK ARBITRARY AND LAWLESS
ACTION.  THAT IT HAS NOT BEEN IS, OF COURSE, NO REASON TO BELIEVE THAT
IT CANNOT BE: 

"AS TO IMPOSSIBILITY, ALL I CAN SAY IS THAT NOTHING IS MORE TRUE OF
(THE LEGAL) PROFESSION THAN THAT THE MOST EMINENT AMONG THEM, FOR 100
YEARS, HAVE TESTIFIED WITH COMPLETE CONFIDENCE THAT SOMETHING IS
IMPOSSIBLE WHICH, ONCE IT IS INTRODUCED, IS FOUND TO BE VERY EASY OF
ADMINISTRATION.  THE HISTORY OF LEGAL PROCEDURE IS THE HISTORY OF
REJECTION OF REASONABLE AND CIVILISED STANDARDS IN THE ADMINISTRATION
OF LAW BY MOST EMINENT JUDGES AND LEADING PRACTITIONERS.  . . . EVERY
EFFORT TO EFFECT IMPROVING CHANGES IS RESISTED ON THE ASSUMPTION THAT
MAN'S ULTIMATE WISDOM IS TO BE FOUND IN THE LEGAL SYSTEM AS AT THE DATE
AT WHICH YOU TRY TO MAKE A CHANGE."  F. FRANKFURTER, THE PROBLEM OF
CAPITAL PUNISHMENT, IN OF LAW AND MEN 77, 86 (1956). 

III 

I HAVE EXPLAINED ABOVE THE REASONS FOR MY BELIEF THAT THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT COMPELS THE STATES TO MAKE
EXPLICIT THE FUNDAMENTAL POLICY CHOICES UPON WHICH ANY EXERTION OF
STATE POWER IS BASED, AND TO EXERCISE SUCH POWER ONLY UNDER PROCEDURES
THAT BOTH LIMIT THE POSSIBILITY OF MERELY ARBITRARY ACTION AND PROVIDE
A RECORD ADEQUATE TO RENDER MEANINGFUL THE INSTITUTION OF FEDERAL
JUDICIAL REVIEW.  I HAVE ALSO EXPLAINED WHY, IN MY VIEW, THERE IS
NOTHING INHERENT IN THE NATURE OF CAPITAL SENTENCING THAT MAKES
APPLICATION OF SUCH PROCEDURES IMPOSSIBLE.  THERE REMAINS, THEN, ONLY
THE QUESTION WHETHER THE TWO STATE PROCEDURES UNDER REVIEW TODAY
PROVIDE THE NECESSARY SAFEGUARDS. 

        A 

IN OHIO, IF A CAPITAL DEFENDANT ELECTS TRIAL BY JURY THE QUESTIONS
WHETHER HE IS GUILTY OF THE CRIME CHARGED AND, IF SO, WHETHER HE SHOULD
BE KILLED ARE SIMULTANEOUSLY SUBMITTED TO THE JURY.  JURY TRIAL MAY,
HOWEVER, BE WAIVED AS OF RIGHT IN CAPITAL CASES, STATE V. SMITH, 123
OHIO ST. 237, 174 N.E. 768 (1931), /44/  OR A DEFENDANT MAY, WITH THE
PERMISSION OF THE COURT, ENTER A PLEA OF GUILTY.  STATE V. FERRANTO,
112 OHIO ST. 667, 148 N.E. 362 (1925).  IN THE ABSENCE OF JURY TRIAL
THE SENTENCING DECISION IS MADE BY A THREE-JUDGE COURT.  OHIO REV. CODE
ANN. SEC. 2945.06 (1954). 

A DEFENDANT WHO EXERCISES HIS RIGHT TO JURY TRIAL MAY INTRODUCE ONLY
EVIDENCE RELEVANT TO THE QUESTION OF GUILT.  NO EVIDENCE MAY "BE
INTRODUCED DIRECTED SPECIFICALLY TOWARD A CLAIM FOR MERCY," ASHBROOK V.
STATE, 49 OHIO APP. 298, 302, 197 N.E. 214, 216 (1935), FOR THAT "IS A
MATTER VESTED FULLY AND EXCLUSIVELY IN THE DISCRETION OF THE JURY,"
STATE V. ELLIS, 98 OHIO ST. 21, 120 N.E. 218 (COURT'S SYLLABUS) (1918),
AND THEREFORE, UNDER OHIO LAW, IS "NOT AN ISSUE IN THE CASE."  ASHBROOK
V. STATE, SUPRA.  A DEFENDANT WHO CAN PRESENT NO EVIDENCE ON THE
QUESTION OF GUILT MAY NOT, THEREFORE, PRESENT ANY EVIDENCE WHATSOEVER
TO THE SENTENCING JURY. 

A DEFENDANT WHO WAIVES JURY TRIAL, HOWEVER, IS IN A SOMEWHAT
DIFFERENT SITUATION.  PRESUMABLY, OF COURSE, THE SAME RULES OF EVIDENCE
APPLY AT A BENCH TRIAL OR AT A TRIAL UPON A PLEA OF GUILTY.  /45/
WHERE THE SENTENCING DETERMINATION IS MADE BY THE COURT, HOWEVER, TWO
ADDITIONAL FACTORS APPLY.  FIRST, THE DEFENDANT HAS AN ABSOLUTE RIGHT
TO ADDRESS THE COURT BEFORE SENTENCE IS IMPOSED, OHIO REV. CODE ANN.
SEC. 2947.05 (1954), DENIAL OF WHICH IS A GROUND FOR RESENTENCING. 
SILSBY V. STATE, 119 OHIO ST. 314, 164 N.E. 232 (1928).  SINCE THE
JURY'S DECISION THAT A DEFENDANT SHOULD BE KILLED IS UNREVIEWABLE BY
ANY COURT, STATE V. KLUMPP.  15 OHIO OP.2D 461, 468, 175 N.E.2D 767,
775-776, APPEAL DISMISSED, 171 OHIO ST. 62, 167 N.E.2D 778 (1960)
(TRIAL COURT); STATE V. REED, 85 OHIO APP. 36, 84 N.E.2D 620 (1948),
EXERCISE OF THE RIGHT CAN HAVE NO EFFECT ON THE SENTENCING
DETERMINATION IN JURY CASES.  BUT THE TRIAL COURT MAY MODIFY ITS OWN
SENTENCE DURING THE SAME TERM OF COURT, SEE LEE V. STATE, 32 OHIO ST.
113 (1877), AND MAY THEREFORE BE SWAYED BY THE DEFENDANT'S PERSONAL
PLEA.  MOREOVER, OHIO REV. CODE ANN. SEC. 2947.06 (SUPP. 1970)
EXPRESSLY PERMITS A TRIAL COURT TO "HEAR TESTIMONY OF MITIGATION OF A
SENTENCE AT THE TERM OF CONVICTION OR PLEA."  IF THIS STATUTE IS
APPLICABLE TO CAPITAL CASES, /46/  DEFENDANTS PLEADING GUILTY OR
WAIVING JURY TRIAL MAY INTRODUCE ADDITIONAL INFORMATION ON THE QUESTION
OF SENTENCE.  AGAIN, HOWEVER, THE UNREVIEWABILITY OF A JURY SENTENCE
MEANS THAT IT CAN HAVE NO EFFECT IN CASES TRIED TO A JURY.  FINALLY, A
DEATH SENTENCE IMPOSED BY A THREE-JUDGE COURT MAY NOT BE REVIEWED OR
MODIFIED ON APPEAL.  STATE V. FERGUSON, 175 OHIO ST. 390, 195 N.E.2D
794 (1964); STATE V. STEWART, 176 OHIO ST. 156, 198 N.E.2D 439 (1964). 

THE STANDARD INSTRUCTION GIVEN CAPITAL JURIES ON THE QUESTION OF
PUNISHMENT APPEARS IN STATE V. CALDWELL, 135 OHIO ST. 424, 425, 21
N.E.2D 343, 344 (1939): 

"(YOU WILL DETERMINE WHETHER OR NOT YOU WILL EXTEND OR WITHHOLD
MERCY.  . . . IN THAT CONNECTION WHETHER YOU RECOMMEND OR WITHHOLD
MERCY IS A MATTER SOLELY WITHIN YOUR DISCRETION, CALLING FOR THE
EXERCISE OF YOUR VERY BEST AND MOST PROFOUND JUDGMENT, NOT MOTIVATED BY
CONSIDERATIONS OF SYMPATHY OR AS A MEANS OF ESCAPING A HARD OR
DISAGREEABLE DUTY, BUT MUST BE CONSIDERED BY YOU IN THE LIGHT OF ALL
THE CIRCUMSTANCES OF THE CASE WITH RESPECT TO THE EVIDENCE SUBMITTED TO
YOU AND THE OTHER CIRCUMSTANCES SURROUNDING THIS DEFENDANT."  THE JURY
MAY BE INSTRUCTED THAT "SOCIOLOGICAL MATTERS AND ENVIRONMENT"  HAVE
"NOTHING WHATEVER TO DO WITH (THE) CASE," ID., AT 428, 21 N.E.2D, AT
344, BUT IT APPEARS THAT THIS INSTRUCTION IS NOT GENERALLY GIVEN. 
LIKEWISE, THE TRIAL COURT MAY, BUT IS NOT COMPELLED TO, INFORM THE JURY
ABOUT MATTERS SUCH AS PAROLE FROM A SENTENCE TO LIFE IMPRISONMENT. 
STATE V. MEYER, 163 OHIO ST. 279, 126 N.E.2D 585 (1955); STATE V.
HENLEY, 15 OHIO ST.2D 86, 238 N.E.2D 773 (1968).  IN PETITIONER
CRAMPTON'S CASE, THE JURY WAS INSTRUCTED GENERALLY THAT IT SHOULD NOT
BE "INFLUENCED BY ANY CONSIDERATION OF SYMPATHY OR PREJUDICE."  ON THE
QUESTION OF PUNISHMENT, IT WAS TOLD ONLY THAT "(I)F YOU FIND THE
DEFENDANT GUILTY OF MURDER IN THE FIRST DEGREE, THE PUNISHMENT IS
DEATH, UNLESS YOU RECOMMEND MERCY, IN WHICH EVENT THE PUNISHMENT IS
IMPRISONMENT IN THE PENITENTIARY DURING LIFE."  THE JURY WAS ALSO
HANDED A VERDICT FROM WITH A "LINE WHICH YOU MUST FILL IN.  WE-- BLANK-
RECOMMEND MERCY AND YOU WILL PUT IN THAT LINE, WE DO, OR, WE DO NOT,
ACCORDING TO YOUR FINDING."  EXCEPT FOR A SUPPLEMENTARY INSTRUCTION
INFORMING THE JURY THAT ITS RECOMMENDATION HAD TO BE UNANIMOUS, NO
FURTHER INSTRUCTIONS ON THE QUESTION OF PUNISHMENT WERE GIVEN THE
JURY. 

THERE IS IN MY VIEW NO WAY THAT THIS OHIO CAPITAL SENTENCING
PROCEDURE CAN BE THOUGHT TO PASS MUSTER UNDER THE DUE PROCESS CLAUSE. 

FIRST.  NOTHING WHATSOEVER IN THE PROCESS EITHER SETS FORTH THE
BASIC POLICY CONSIDERATIONS THAT OHIO BELIEVES RELEVANT TO CAPITAL
SENTENCING, OR LEADS TOWARDS ELUCIDATION OF THESE CONSIDERATIONS IN THE
LIGHT OF ACCUMULATED EXPERIENCE.  THE STANDARD JURY INSTRUCTION
CONTAINS AT BEST AN OBSCURE HINT.  /47/  THE INSTRUCTIONS GIVEN IN THE
PRESENT CASE CONTAIN NONE WHATSOEVER.  SO FAR AS THEY ARE CONCERNED,
THE JURY COULD HAVE DECIDED TO IMPOSE THE PENALTY AS A MATTER OF SIMPLE
VENGEANCE FOR WHAT IT CONSIDERED AN ATROCIOUS CRIME; BECAUSE IT FELT
THAT IMPOSITION OF THE DEATH PENALTY WOULD DETER OTHER POTENTIAL
MURDERERS; OR BECAUSE IT FELT THAT PETITIONER, IF NOT HIMSELF KILLED,
MIGHT KILL OR COMMIT SOME OTHER WRONG IN THE FUTURE.  THE JURY MAY HAVE
BEEN INFLUENCED BY ANY, ALL, OR NONE OF THESE CONSIDERATIONS.  IF IT IS
BEYOND THE PRESENT ABILITY OF THE OHIO LEGISLATURE TO "IDENTIFY BEFORE
THE FACT THOSE CHARACTERISTICS OF CRIMINAL HOMICIDES AND THEIR
PERPETRATORS WHICH"-- IN THE JUDGMENT OF THE STATE OF OHIO-- "CALL FOR
THE DEATH PENALTY, AND TO EXPRESS THESE CHARACTERISTICS IN LANGUAGE
WHICH CAN BE FAIRLY UNDERSTOOD AND APPLIED BY THE SENTENCING
AUTHORITY," ANTE, AT 204, THE OHIO PROCEDURE IS HARDLY DESIGNED TO
IMPROVE THAT ABILITY.  IT CONTAINS NO ELEMENT OF THE PROUDEST TRADITION
OF THE COMMON LAW-- THE ABILITY TO GROW WITH TIME BY SLOWLY DERIVING
PRINCIPLES OF GENERAL APPLICABILITY FROM CAREFUL CONSIDERATION OF THE
MYRIAD FACTS OF A MULTITUDE OF PARTICULAR CASES.  NEITHER WE NOR THE
STATE OF OHIO CAN KNOW THE REASONING BY WHICH THIS JURY DETERMINED TO
IMPOSE THE DEATH PENALTY, OR THE FACTS UPON WHICH THAT REASONING WAS
BASED.  ALL WE KNOW IS THAT THE JURY DID NOT APPEAR TO FIND THE
QUESTION A PARTICULARLY DIFFICULT ONE.  FOR THE JURY DETERMINED THAT
JAMES EDWARD CRAMPTON HAD MURDERED HIS WIFE, THAT HE HAD DONE SO WHILE
LEGALLY SANE, AND THAT HE SHOULD BE KILLED-- IN LESS THAN FIVE HOURS. 

SECOND.  THE POLICIES APPLIED BY THE STATE OF OHIO TO DETERMINE THAT
JAMES EDWARD CRAMPTON SHOULD DIE WERE NEITHER ARTICULATED TO NOR
EXPLAINED BY THE JURY THAT MADE THAT DECISION.  NOR HAVE THEY BEEN
ELSEWHERE SET FORTH.  THE STANDARD JURY INSTRUCTIONS, QUOTED SUPRA, AT
289-290, DO TELL THE JURY TO REACH ITS DETERMINATION "IN LIGHT OF ALL
THE CIRCUMSTANCES OF THE CASE WITH RESPECT TO THE EVIDENCE SUBMITTED TO
YOU AND THE OTHER CIRCUMSTANCES SURROUNDING THIS DEFENDANT."  A
PERCEPTIVE JURY MIGHT CONCLUDE THAT THIS INSTRUCTION INDICATES THAT
OHIO CONSIDERS THE RELATIVE SEVERITY OF THE CRIME A FACTOR OF
SUBSTANTIAL IMPORTANCE IN THE DETERMINATION OF SENTENCE.  HOW THE JURY
IS TO DETERMINE THE SEVERITY OF THE CRIME BEFORE IT IN RELATION TO
OTHERS IS, HOWEVER, SOMETHING OF A MYSTERY, SINCE OHIO LAW
SIMULTANEOUSLY DEMANDS THAT THE SENTENCING DETERMINATION BE BASED
STRICTLY UPON THE EVIDENCE ADDUCED IN THE CASE AT HAND, HOWELL V.
STATE, 102 OHIO ST. 411, 131 N.E. 706 (1921), AND FORBIDS THE DEFENDANT
TO INTRODUCE EVIDENCE OF OTHER CRIMES OR OTHER JUDGMENTS TO AID THE
JURY IN DETERMINING WHETHER THE MURDER HE HAS COMMITTED IS MORE OR LESS
SEVERE THAN OTHER MURDERS.  ASHBROOK V. STATE, SUPRA.  SIMILARLY, BY
DIRECTING THE JURY'S ATTENTION TO "THE OTHER CIRCUMSTANCES SURROUNDING
THIS DEFENDANT" IT MIGHT BE THOUGHT THAT OHIO WAS SUGGESTING
CONSIDERATION OF ENVIRONMENTAL FACTORS THAT MIGHT MAKE THE DEFENDANT'S
ACTIONS, IF NO MORE JUSTIFIABLE, LESS A REFLECTION OF PERSONAL
BLAMEWORTHINESS.  YET ANY SUCH READING OF THE INSTRUCTION IS CONDEMNED
BY STATE V. CALDWELL, SUPRA, WHICH APPROVED A JURY CHARGE THAT
ENVIORNMENTAL FACTORS HAVE "NOTHING WHATEVER TO DO"  WITH THE
SENTENCING DECISION.  IT ALSO MIGHT BE THOUGHT THAT DIRECTING JURIES TO
CONSIDER "OTHER CIRCUMSTANCES SURROUNDING THIS DEFENDANT" IS AN
INDICATION, ALBEIT A RATHER BACKHANDED ONE, THAT OHIO DESIRES CAPITAL
SENTENCING JURIES TO TAKE INTO ACCOUNT THE LIKELIHOOD THAT A PARTICULAR
DEFENDANT MAY BE REHABILITATED.  CERTAINLY THIS INDICATION IS
REINFORCED IN CASES WHERE THE JURY IS INSTRUCTED WITH REGARD TO THE
POSSIBILITY OF PAROLE FROM A LIFE SENTENCE.  BUT INSTRUCTIONS ON PAROLE
ARE OPTIONAL WITH THE TRIAL COURT, STATE V. HENLEY, SUPRA; STATE V.
MEYER, SUPRA, AND UNLESS IT BE ASSUMED THAT EVERY JURY NOT SO
INSTRUCTED IS NEVERTHELESS AWARE OF THE POSSIBILITY OF PAROLE (AND
LIKEWISE THAT, DESPITE INSTRUCTIONS TO BASE ITS VERDICT ON THE EVIDENCE
IN THE CASE, IT WILL NEVERTHELESS RELY UPON ITS OWN KNOWLEDGE OF THE
POSSIBILITY OF PAROLE), FAILURE TO INSTRUCT ALL JURIES WITH REGARD TO
PAROLE MUST MEAN EITHER THAT A STATE POLICY WITH REGARD TO
REHABILITATION IS NOT IN FACT IMPLIED BY SUCH INSTRUCTIONS, OR ELSE
THAT SUCH A STATE POLICY IS CONSCIOUSLY APPLIED ONLY IN SOME CAPITAL
CASES.  FINALLY, ONE OHIO CASE MAY BE EXPLICABLE ONLY ON A BASIS
SUGGESTED NOWHERE ELSE IN OHIO LAW:  THAT THE CAPITAL SENTENCING
DECISION RESTS UPON FACTORS THAT VARY DEPENDING UPON WHICH OF TWO
SIMULTANEOUSLY APPLICABLE CAPITAL STATUTES IS USED TO SUPPORT
PUNISHMENT.  IN STATE V. FERGUSON, 175 OHIO ST. 390, 195 N.E.2D 794
(1964), THE DEFENDANT HAD BEEN CONVICTED ON GUILTY PLEAS ENTERED TO
CHARGES OF PREMEDITATED MURDER AND FELONY MURDER, BOTH GROWING OUT OF
THE MURDER, DURING THE COURSE OF A ROBBERY, OF A SINGLE INDIVIDUAL. 
THE THREE-JUDGE COURT THAT HEARD EVIDENCE TO FIX THE PENALTY ON BOTH
CHARGES AT THE SAME TIME SENTENCED HIM TO LIFE IMPRISONMENT ON THE
PREMEDITATED MURDER CHARGE, AND TO DEATH ON THE CHARGE OF FELONY
MURDER.  THE OHIO SUPREME COURT AFFIRMED THE SENTENCE OF DEATH.  IN
LIGHT OF THESE CASES, I THINK IT FAIR TO SAY THAT OHIO LAW HAS NOWHERE
PURPORTED TO SET FORTH THE CONSIDERATIONS OF STATE POLICY INTENDED TO
UNDERLIE A SENTENCE OF DEATH. 

THIRD.  EVEN IF IT BE ASSUMED THAT OHIO SENTENCING JUDGES AND JURIES
ACT UPON SHARED, ALTHOUGH UNARTICULATED AND UNARTICULABLE, NOTIONS OF
PROPER CAPITAL SENTENCING POLICY, THE CAPITAL SENTENCING PROCESS IN
OHIO CONTAINS ELEMENTS THAT RENDER DIFFICULT IF NOT IMPOSSIBLE ANY
CONSISTENCY IN RESULT.  PRESUMABLY ALL JUDGES, AND CERTAINLY SOME
JURIES (I.E., THOSE WHO ARE SPECIFICALLY SO INSTRUCTED) WILL BE
COGNIZANT OF THE POSSIBILITY OF PAROLE FROM A SENTENCE TO LIFE
IMPRISONMENT.  OTHER JURIES WILL NOT.  IF THIS IS AN IRRELEVANT FACTOR,
IT IS HARD TO UNDERSTAND WHY SOME JURIES MAY BE GIVEN THIS
INFORMATION.  IF IT IS A RELEVANT FACTOR, IT IS EQUALLY HARD TO
UNDERSTAND WHY OTHER JURIES ARE NOT.  AND IF IT IS A RELEVANT FACTOR,
THE INEVITABLE CONSEQUENCE OF PRESENTING THE INFORMATION, FOR NO
EXPLICABLE REASON, TO SOME BUT NOT ALL CAPITAL SENTENCING JURIES, IS
THAT CONSISTENCY IN DECISIONMAKING IS IMPOSSIBLE.  SIMILARLY, AS I HAVE
ALREADY NOTED, /48/  THERE IS A SUBSTANTIAL DIFFERENCE BETWEEN THE
EVIDENCE THAT MAY BE CONSIDERED BY A JURY AND THAT WHICH MAY BE
CONSIDERED BY A SENTENCING PANEL OF JUDGES.  FOR ALTHOUGH THE DEFENDANT
MAY, IN A JURY TRIAL, TESTIFY ON THE QUESTION OF GUILT IF HE IS WILLING
TO FORGO HIS PRIVILEGE AGAINST SELF-INCRIMINATION, HE MAY NOT EVEN THEN
PRESENT EVIDENCE RELEVANT SOLELY TO THE QUESTION OF PENALTY.  A
DEFENDANT WHO IS TO BE SENTENCED BY A PAENL OF JUDGES, ON THE OTHER
HAND, HAS AN ABSOLUTE RIGHT BEFORE THE SENTENCING DECISION BECOMES
FINAL TO ADDRESS THE SENTENCERS ON ANY SUBJECT HE MAY CHOOSE.  /49/
AND SUCH A DEFENDANT APPEARS AS WELL TO HAVE AT LEAST A CHANCE TO
PRESENT EVIDENCE FROM OTHER SOURCES RELEVANT SOLELY TO THE SENTENCING
DETERMINATION BEFORE THAT DETERMINATION BECOMES FINAL.  /50/  YET SUCH
INFORMATION MAY NOT BE PRESENTED TO A JURY, WHETHER THE JURY DESIRES IT
OR NOT.  THE POINT, AGAIN, IS THAT CONSISTENT DECISIONMAKING IS
IMPOSSIBLE WHEN ONE DECISIONMAKER MAY CONSIDER INFORMATION FORBIDDEN TO
ANOTHER.  AND WHERE, AS HERE, NO BASIS WHATSOEVER IS PRESENTED TO
JUSTIFY THE DIFFERENCE, IT IS INEXCUSABLE.  /51/ 

FOURTH.  THERE IS, MOREOVER, NO REASON TO BELIEVE THAT OHIO CAPITAL
SENTENCING JUDGES AND JURIES DO IN FACT SHARE COMMON NOTIONS OF THE
CONSIDERATIONS RELEVANT TO CAPITAL SENTENCING.  I HAVE ALREADY POINTED
OUT THAT NO STATE POLICY HAS EVER BEEN ARTICULATED.  AND WHATEVER MAY
BE THE CASE WITH JUDGES, CAPITAL SENTENCING JURIES ARE DRAWN
ESSENTIALLY AT RANDOM /52/  AND CALLED UPON TO DECIDE ONE CASE AND ONE
CASE ONLY.  /53/  WHATEVER VALUE THERE MAY BE IN THE NOTION THAT
ARBITRARY DECISIONMAKING MAY BE CONTROLLED BY COMMITTING DIFFICULT
QUESTIONS TO A CONTINUING BODY WHICH CAN AT LEAST MAINTAIN CONSISTENCY
OF PRINCIPLE UNTIL IT CHANGES ITS VIEWS ON THE QUESTIONS TO BE DECIDED,
IS ENTIRELY ABSENT FROM THE CAPITAL JURY SENTENCING PROCESS PRESENTLY
UNDER REVIEW.  FOR CAPITAL SENTENCING JURIES IN OHIO ARE NOT CONTINUING
BODIES, AND NO JURY MAY BE TOLD WHAT ANOTHER JURY HAS DONE IN SIMILAR
(OR DIFFERENT) CASES.  LIKEWISE, THE PROCEDURE UNDER REVIEW CANNOT GAIN
UNIFORMITY FROM JUDICIAL REVIEW, FOR UNDER OHIO LAW NO SUCH REVIEW IS
PERMITTED. 

FIFTH.  ALTHOUGH THE DUE PROCESS CLAUSE DOES NOT FORBID A STATE FROM
IMPOSING "A DIFFERENT PUNISHMENT FOR THE SAME OFFENCE . . . UNDER
PARTICULAR CIRCUMSTANCES," MOORE V. MISSOURI, 159 U.S. 673, 678 (1895),
IT DOES COMMAND THAT PUNISHMENT BE "DEALT OUT OF ALL ALIKE WHO ARE
SIMILARLY SITUATED."  IBID.; LEEPER V. TEXAS, 139 U.S. 462, 468 (1891);
MISSOURI V. LEWIS, 101 U.S. 22, 31 (1880).  EVEN GRANTING THE STATE THE
FULLEST CONCEIVABLE ROOM FOR JUDGMENT AS TO WHAT ARE AND ARE NOT
"PARTICULAR CIRCUMSTANCES" JUSTIFYING DIFFERENT TREATMENT, THIS MEANS
AT THE LEAST THAT THE STATE MUST ITSELF APPLY THE SAME FUNDAMENTAL
POLICIES TO ALL IN MAKING THAT JUDGMENT.  THE INSTITUTION OF FEDERAL
JUDICIAL REVIEW IS DESIGNED TO VINDICATE THIS (AND OTHER /54/  )
FEDERALLY GUARANTEED RIGHTS.  YET THE PROCEDURE BEFORE US RENDERS THE
POSSIBILITY OF SUCH REVIEW ENTIRELY CHIMERICAL.  THERE IS NO WAY OF
DETERMINING WHAT POLICIES WERE APPLIED BY THE STATE IN REACHING
JUDGMENT.  THERE IS NO WAY OF INFERRING WHAT POLICIES WERE APPLIED BY
AN EXAMINATION OF THE FACTS, FOR WE HAVE NO IDEA WHAT FACTS WERE RELIED
ON BY THE SENTENCERS.  NOR MAY THIS VOID BE FILLED IN ANY WAY BY
PRESUMPTIONS BASED ON THE RESULT OF THEIR ACTIONS, FOR THEY WERE
NEITHER GIVEN DIRECTION IN THE EXERCISE OF JUDGMENT NOR ASKED TO
EXPLAIN THE CONCLUSION THEY REACHED.  THERE IS SIMPLY NO WAY THAT THIS
OR ANY OTHER COURT CAN DETERMINE WHETHER PETITIONER CRAMPTON WAS
CONDEMNED TO DIE FOR REASONS THAT OHIO WOULD BE WILLING TO APPLY TO ANY
OTHER CASE-- OR FOR REASONS THAT OHIO WOULD, IF THEY WERE EXPLICITLY
SET FORTH, JUST AS EXPLICITLY REJECT. 

IN SUM, THE OHIO CAPITAL SENTENCING PROCEDURE PRESENTLY BEFORE US
RAISES FUNDAMENTAL QUESTIONS OF STATE POLICY WHICH HAVE NEVER BEEN
EXPLICITLY DECIDED BY ANY RESPONSIBLE ORGAN OF THE STATE.  NOTHING IN
THE PROCEDURE LOOKS TOWARDS THE GRADUAL DEVELOPMENT OF A UNIFORM STATE
POLICY THROUGH ACCUMULATION OF A BODY OF PRECEDENT.  NO PROTECTION
WHATSOEVER APPEARS AGAINST THE POSSIBILITY OF MERELY ARBITRARY OR
WILLFUL DECISIONMAKING; MOREOVER, SOME FEATURES OF THE PROCESS APPEAR
TO MAKE INCONSISTENT ACTION NOT MERELY POSSIBLE BUT INEVITABLE.  AND
FINALLY, THE RECORD PROVIDED BY THE OHIO CAPITAL SENTENCING PROCESS
MAKES VIRTUALLY IMPOSSIBLE THE REDRESS OF ANY VIOLATIONS OF FEDERALLY
GUARANTEED RIGHTS THROUGH THE INSTITUTION OF FEDERAL JUDICIAL REVIEW. 
I CAN SEE NO POSSIBLE BASIS FOR HOLDING SUCH A CAPITAL SENTENCING
PROCEDURE PERMISSIBLE UNDER THE DUE PROCESS CLAUSE, I WOULD THEREFORE
REVERSE PETITIONER CRAMPTON'S SENTENCE OF DEATH. 

B 

THE PROCEDURES WHEREBY THE STATE OF CALIFORNIA DETERMINES WHICH
CONVICTED CRIMINALS TO KILL DIFFER IN A NUMBER OF RESPECTS FROM THOSE
USED BY OHIO.  FOLLOWING CONVICTION OF A POSSIBLY CAPITAL CRIME, /55/
THE QUESTION OF PENALTY IS DETERMINED IN A SEPARATE PROCEEDING.  /56/
EXCEPT WHERE THE DEFENDANT HAS, WITH THE PROSECUTION'S CONSENT, /57/
WAIVED TRIAL BY JURY, THE SENTENCING DETERMINATION IS MADE BY A JURY
WHETHER CONVICTION WAS ON A PLEA OF GUILTY OR NOT GUILTY.  A DEFENDANT
WHO WAIVES JURY TRIAL ON THE ISSUE OF GUILT MAY NOT HAVE HIS SENTENCE
DETERMINED BY A JURY.  PEOPLE V. GOLSTON, 58 CAL.2D 535, 375 P.2D 51
(1962).  NOTWITHSTANDING THE STATUTORY LANGUAGE, /58/  IT APPEARS
POSSIBLE FOR A DEFENDANT WHOSE GUILT IS DETERMINED BY A JURY TO HAVE
HIS SENTENCE DETERMINED BY A JUDGE.  SEE PEOPLE V. SOSA, 251 CAL.APP.2D
9, 58 CAL.RPTR.  912 (1967).  IF A JURY IS WAIVED, IDENTICAL SENTENCING
POWER WILL BE EXERCISED BY A SINGLE JUDGE.  PEOPLE V. LANGDON, 52
CAL.2D 425, 341 P.2D 303 (1959); PEOPLE V. JONES, 52 CAL.2D 636, 343
P.2D 577 (1959).  A JURY DETERMINATION TO IMPOSE A DEATH SENTENCE MAY
BE SET ASIDE BY THE JUDGE PRESIDING AT THE TRIAL, CAL. PENAL CODE SEC.
1181(7) (1970), CONSTRUED IN PEOPLE V. HILL, 66 CAL.2D 536, 426 P.2D
908 (1967).  IT MAY NOT BE OTHERWISE REVIEWED, WHETHER FIXED BY A JUDGE
OR JURY.  PEOPLE V. WELCH, 58 CAL.2D 271, 373 P.2D 427 (1962) (JUDGE);
IN RE ANDERSON, 69 CAL.2D 613, 447 P.2D 117 (1968).  /59/ 

THE RANGE OF EVIDENCE THAT MAY BE INTRODUCED AT THE PENALTY TRIAL IS
BROAD.  ORDINARY RULES OF COMPETENCE, HEARSAY, ETC., APPLY, E.G.,
PEOPLE V. HINES, 61 CAL.2D 164, 174-175, 390 P.2D 398, 405 (1964), AND
A FEW ISSUES ARE EXCLUDED.  EXCLUSION, HOWEVER, APPEARS TO BE NOT ON
THE BASIS THAT THE ISSUES ARE IRRELEVANT, BUT RATHER THAT THEY ARE
EITHER UNDULY INFLAMMATORY OR IMPRACTICAL TO LITIGATE.  THUS, EVIDENCE
OR ARGUMENT IS PROHIBITED CONCERNING THE LIKELIHOOD OF PAROLE FROM A
LIFE SENTENCE, PEOPLE V. MORSE, 60 CAL.2D 631, 388 P.2D 33 (1964); /60/
CONCERNING THE DETERRENT EFFECTS OF CAPITAL PUNISHMENT, PEOPLE V.
PURVIS, 60 CAL.2D 323, 341, 384 P.2D 424, 435-436 (1963); PEOPLE V.
LOVE, 56 CAL.2D 720, 366 P.2D 33 (1961); PEOPLE V. KIDD, 56 CAL.2D 759,
366 P.2D 49 (1961), /61/  ALTHOUGH SOME REFERENCE TO THE MATTER MAY (AS
IN THE PRESENT CASE, SEE APP. 199) BE MADE BY THE PROSECUTION AND BE
TREATED UNDER THE HARMLESS-ERROR DOCTRINE, PEOPLE V. GARNER, 57 CAL.2D
135, 367 P.2D 680 (1961), ESPECIALLY IF TRIAL IS TO THE COURT, PEOPLE
V. WELCH, 58 CAL.2D 271, 274, 373 P.2D 427, 429 (1962); CONCERNING
WHETHER CAPITAL PUNISHMENT SHOULD EVER BE IMPOSED, PEOPLE V. MOYA, 53
CAL.2D 819, 350 P.2D 112 (1960); /62/  OR CONCERNING PHYSICAL SUFFERING
OF THE VICTIM UNINTENDED BY THE DEFENDANT, PEOPLE V. LOVE, 53 CAL.2D
843, 350 P.2D 705 (1960).  /63/  EXCEPT FOR THESE LIMITATIONS, HOWEVER,
VIRTUALLY ANY MATTER MAY BE EXPLORED.  PEOPLE V. TERRY, 61 CAL.2D 137,
142-153, 390 P.2D 381, 385-392 (1964). 

FOLLOWING THE ARGUMENTS OF COUNSEL, /64/  THE JURY IS INSTRUCTED ON
ITS FUNCTION IN DETERMINING THE PENALTY TO BE IMPOSED.  A STANDARD
INSTRUCTION ON THE SUBJECT EXISTS /65/  BUT IS NOT MANDATORY; IT IS,
ESSENTIALLY, THE INSTRUCTION GIVEN IN THE PRESENT CASE: 

     "THE DEFENDANTS IN THIS CASE HAVE BEEN FOUND GUILTY OF THE

  OFFENSE OF MURDER IN THE FIRST DEGREE, AND IT IS NOW YOUR DUTY TO

  DETERMINE WHICH OF THE PENALTIES PROVIDED BY LAW SHOULD BE

  IMPOSED ON EACH DEFENDANT FOR THAT OFFENSE.  NOW, IN ARRIVING AT

  THIS DETERMINATION YOU SHOULD CONSIDER ALL OF TH EVIDENCE

  RECEIVED HERE IN COURT PRESENTED BY THE PEOPLE AND DEFENDANTS

  THROUGHOUT THE TRIAL BEFORE THIS JURY.  YOU MAY ALSO CONSIDER ALL

  OF THE EVIDENCE OF THE CIRCUMSTANCES SURROUNDING THE CRIME, OF

  EACH DEFENDANT'S BACKGROUND AND HISTORY, AND OF THE FACTS IN

  AGGRAVATION OR MITIGATION OF THE PENALTY WHICH HAVE BEEN RECEIVED

  HERE IN COURT.  HOWEVER, IT IS NOT ESSENTIAL TO YOUR DECISION

  THAT YOU FIND MITIGATING CIRCUMSTANCES ON THE ONE HAND OR

  EVIDENCE IN AGGRAVATION OF THE OFFENSE ON THE OTHER HAND. 

        .          .        .          . 

     "IT IS THE LAW OF THIS STATE THAT EVERY PERSON GUILTY OF
MURDER

  IN THE FIRST DEGREE SHALL SUFFER DEATH OR CONFINEMENT IN THE

  STATE PRISON FOR LIFE, AT THE DISCRETION OF THE JURY.  IF YOU

  SHOULD FIX THE PENALTY AS CONFINEMENT FOR LIFE, YOU WILL SO

  INDICATE IN YOUR VERDICT.  IF YOU SHOULD FIX THE PENALTY AS

  DEATH, YOU WILL SO INDICATE IN YOUR VERDICT.  NOTWITHSTANDING

FACTS, IF ANY, PROVED IN MITIGATION OR AGGRAVATION, IN

DETERMINING WHICH PUNISHMENT SHALL BE INFLICTED, YOU ARE ENTIRELY

  FREE TO ACT ACCORDING TO YOUR OWN JUDGMENT, CONSCIENCE, AND

  ABSOLUTE DISCRETION.  THAT VERDICT MUST EXPRESS THE INDIVIDUAL

  OPINION OF EACH JUROR. 

      "NOW, BEYOND PRESCRIBING THE TWO ALTERNATIVE PENALTIES, THE
LAW

  ITSELF AS TO WHICH OF THE TWO PENALTIES IS IMPOSED."  /66/  BUT,

  RATHER, COMMITS THE WHOLE MATTER OF DETERMINING WHICH OF THE TWO

  PENALTIES SHALL BE FIXED TO THE JUDGMENT, CONSCIENCE, AND

  ABSOLUTE DISCRETION OF THE JURY.  IN THE DETERMINATION OF THAT

  MATTER, IF THE JURY DOES AGREE, IT MUST BE UNANIMOUS AS TO WHICH

  OF THE TWO PENALTIES IS IMPOSED." 

SUBSTANTIALLY MORE ELABORATE VERSIONS OF THIS INSTRUCTION MAY, IF THE
TRIAL COURT DESIRES, BE GIVEN.  PEOPLE V. HARRISON, 59 CAL.2D 622, 381
P.2D 665 (1963).  IN ADDITION, THE TRIAL COURT IS SUPPOSED TO INSTRUCT
THE JURY THAT A DEFENDANT SERVING A LIFE SENTENCE MAY BE PAROLED, BUT
THAT IT SHOULD NOT PRESUME THAT THE CALIFORNIA ADULT AUTHORITY WILL
RELEASE A PRISONER UNTIL IT IS SAFE TO DO SO, AND THAT IT SHOULD NOT
TAKE THE POSSIBILITY OF PAROLE INTO ACCOUNT.  PEOPLE V. MCGAUTHA, 70
CAL.2D 770, 452 P.2D 650 (1969).  FINALLY, UNDER CALIFORNIA LAW IT IS
ERROR TO CHARGE THAT THE JURY'S VERDICT SHOULD EXPRESS THE CONSCIENCE
OF THE COMMUNITY; THE JURY SHOULD BE TOLD, INSTEAD, THAT THE VERDICT
MUST "EXPRESS THE INDIVIDUAL CONSCIENCE OF EACH JUROR."  PEOPLE V.
HARRISON, SUPRA, AT 633, 381 P.2D, AT 671.  /67/ 

A SUBSTANTIAL NUMBER OF SUBSIDIARY INSTRUCTIONS MAY BUT NEED NOT BE
GIVEN TO THE JURY; THE GOVERNING PRINCIPLE IS THAT THE INSTRUCTIONS
MUST MAKE CLEAR TO THE JURY THAT ITS DECISION WHETHER OR NOT A
CONVICTED DEFENDANT IS TO BE KILLED IS TO TAKE PLACE IN A "LEGAL
VACUUM."  PEOPLE V. TERRY.  61 CAL.2D, AT 154, 390 P.2D, AT 392; SEE
PEOPLE V. FRIEND, 47 CAL.2D 749, 306 P.2D 463 (1957).  A TRIAL JUDGE
MAY, SHOULD HE DESIRE, "AID THE JURY BY STATING THE KINDS OF FACTORS
THAT MAY BE CONSIDERED, THEREBY SETTING THE ONE FOR THE JURY'S
DELIBERATION," PEOPLE V. POLK, 63 CAL.2D 443, 451, 406 P.2D 641, 646
(1965), SO LONG AS THIS IS DONE IN A MANNER THAT INDICATES TO THE JURY
THAT IT IS FREE NOT TO CONSIDER ANY OF THE FACTORS LISTED BY THE JUDGE,
AND TO CONSIDER ANYTHING ELSE IT MAY DESIRE, PEOPLE V. FRIEND, SUPRA.
IT IS NOT, HOWEVER, ERROR TO REFUSE SUCH AN INSTRUCTION.  PEOPLE V.
POLK, SUPRA.  SIMILARLY, ALTHOUGH A TRIAL JUDGE MAY INSTRUCT THE JURY
THAT IT MAY BE MOVED BY SYMPATHY FOR THE DEFENDANT, PEOPLE V. ANDERSON,
64 CAL.2D 633, 414 P.2D 366 (1966), HE MAY REFUSE TO GIVE SUCH AN
INSTRUCTION AT DEFENSE REQUEST, PEOPLE V. HILLERY, 65 CAL.2D 795, 423
P.2D 208 (1967), ALTHOUGH IT IS ERROR TO INSTRUCT THE JURY THAT IT MAY
NOT BE SO MOVED.  PEOPLE V. POLK, SUPRA; PEOPLE V. BANKHAUER, 1 CAL.3D
609, 463 P.2D 408 (1970).  IT IS ERROR TO INSTRUCT THE JURY THAT IT MAY
NOT CONSIDER DOUBTS ABOUT THE DEFENDANT'S GUILT AS MITIGATING
CIRCUMSTANCES, PEOPLE V. TERRY, SUPRA, BUT IT IS NOT ERROR TO REFUSE TO
CHARGE THAT SUCH DOUBT MAY BE A MITIGATING FACTOR, PEOPLE V.
WASHINGTON, 71 CAL.2D 1061, 458 P.2D 479 (1969), ALTHOUGH THE TRIAL
JUDGE MAY GIVE SUCH A CHARGE IF HE DESIRES, PEOPLE V. POLK, SUPRA;
PEOPLE V. TERRY, SUPRA. 

FINALLY, A JURY DETERMINATION TO IMPOSE THE DEATH SENTENCE MAY NOT
BE REVIEWED BY ANY COURT.  IT MAY, HOWEVER, BE SET ASIDE BY THE JUDGE
PRESIDING AT THE TRIAL.  THE BASIS UPON WHICH THE CALIFORNIA SUPREME
COURT HAS MADE THIS DISTINCTION, OF SOME IMPORTANCE IN THE PRESENT
CASE, IS NOT ENTIRELY CLEAR.  THE TRIAL JUDGE'S POWER TO REDUCE A
SENTENCE OF DEATH TO ONE OF LIFE IMPRISONMENT IS BASED ON CAL. PENAL
CODE SEC. 1181(7) (1970), WHICH PROVIDES, IN PERTINENT PART, THAT "IN
ANY CASE WHEREIN AUTHORITY IS VESTED BY STATUTE IN THE TRIAL COURT OR
JURY TO RECOMMEND OR DETERMINE AS A PART OF ITS VERDICT OR FINDING THE
PUNISHMENT TO BE IMPOSED, THE COURT MAY MODIFY SUCH VERDICT OR FINDING
BY IMPOSING THE LESSER PUNISHMENT WITHOUT GRANTING OR ORDERING A NEW
TRIAL, AND THIS POWER SHALL EXTEND TO ANY COURT TO WHICH THE CASE MAY
BE APPEALED."  THE CALIFORNIA SUPREME COURT HAS CONSTRUED THIS STATUTE
TO EMPOWER THE TRIAL COURT TO SET ASIDE A JURY VERDICT OF DEATH, PEOPLE
V. MOORE, 53 CAL.2D 451, 454, 348 P.2D 584, 586 (1960), BUT NOT TO GIVE
ANY SUCH POWER TO AN APPELLATE COURT, PEOPLE V. GREEN, 47 CAL.2D 209,
235, 302 P.2D 307, 324-325 (1956); IN RE ANDERSON, 69 CAL.2D 613, 447
P.2D 117 (1968).  THIS IS SAID TO BE BECAUSE "THE TRIER OF FACT IS
VESTED WITH EXCLUSIVE DISCRETION TO DETERMINE PUNISHMENT."  PEOPLE V.
GREEN, SUPRA, AT 235, 302 P.2D, AT 325.  WHAT THIS MEANS IS THAT THE
TRIAL COURT DOES NOT REVIEW THE JURY'S DETERMINATION THAT A CONVICTED
DEFENDANT SHOULD BE KILLED; BASED UPON ITS "OWN INDEPENDENT VIEW OF THE
EVIDENCE,"  PEOPLE V. LOVE, 56 CAL.2D, AT 728, 366 P.2D 33, 36, QUOTING
PEOPLE V. MOORE, SUPRA, AT 454, 348 P.2D, AT 586 (1960), THE TRIAL
COURT IS TO DETERMINE ITSELF WHETHER THE DEFENDANT SHOULD BE KILLED,
APPARENTLY ON EXACTLY THE SAME BASIS AND IN EXACTLY THE SAME WAY AS IT
WOULD IF THE ISSUE HAD NEVER BEEN SUBMITTED TO A JURY.  /68/  SEE
PEOPLE V. MOORE, SUPRA; PEOPLE V. HILL, 66 CAL.2D 536, 426 P.2D 908
(1967); PEOPLE V. LOVE, SUPRA; IN RE ANDERSON, SUPRA.  IN SHORT, NO
DEFENDANT SENTENCED TO DIE MAY OBTAIN JUDICIAL REVIEW OF THAT DECISION,
BUT ONE SENTENCED TO DIE BY A JURY GETS A SECOND BITE AT THE APPLE:  HE
IS "ENTITLED TO TWO DECISIONS ON THE EVIDENCE."  PEOPLE V. KETCHEL, 59
CAL.2D 503, 546, 381 P.2D 394, 417 (1963). 

I FIND THIS PROCEDURE LIKEWISE DEFECTIVE UNDER THE DUE PROCESS
CLAUSE.  ALTHOUGH IT DIFFERS IN SOME NOT INSIGNIFICANT RESPECTS FROM
THE PROCEDURE USED IN OHIO, IT NEVERTHELESS IS ENTIRELY BARE OF THE
FUNDAMENTAL SAFEGUARDS REQUIRED BY DUE PROCESS. 

FIRST.  BOTH PROCEDURES CONTAIN AT THEIR HEART THE SAME BASIC VICE. 
LIKE OHIO, CALIFORNIA FAILS TO PROVDE ANY MEANS WHEREBY THE FUNDAMENTAL
QUESTIONS OF STATE POLICY WITH REGARD TO CAPITAL SENTENCING MAY BE
AUTHORITATIVELY RESOLVED.  THEY HAVE NOT BEEN RESOLVED BY THE STATE
LEGISLATURE, WHICH HAS COMMITTED THE MATTER ENTIRELY TO WHATEVERY JUDGE
OR JURY MAY EXERCISE SENTENCING AUTHORITY IN ANY PARTICULAR CASE.  BUT
THEY CANNOT BE AUTHORITATIVELY RESOLVED BY THE SENTENCING AUTHORITY,
NOT ONLY BECAUSE THE CALIFORNIA SUPREME COURT HAS EXPRESSLY RULED THAT
THAT IS NOT PART OF THE SENTENCING FUNCTION, PEOPLE V. KIDD, 56
CAL.2D,AT 770, 366 P.,AT 56, BUT ALSO BECAUSE ANY SUCH RESOLUTION IS
BINDING FOR ONE CASE AND ONE CASE ONLY.  THERE ARE SIMPLY NO MEANS TO
ASSURE THAT "TRULY FUNDAMENTAL ISSUES (WILL ULTIMATELY) BE RESOLVED BY
THE LEGISLATURE," WILKE & HOLZHEISER, INC. V. DEPARTMENT OF ALCOHOLIC
BEVERAGE CONTROL, 65 CAL.2D 349, 369, 420 P.2D 735, 748 (1966). 
NOTHING WHATSOEVER ANYWHERE IN THE PROCESS GIVES ANY ASSURANCE THAT ONE
DEFENDANT WILL BE SENTENCED UPON NOTIONS OF CALIFORNIA PENOLOGICAL
POLICY EVEN VAGUELY RESEMBLING THOSE APPLIED TO THE NEXT. 

SECOND.  IF THE QUESTION BEFORE US WERE WHAT PROCEDURE WOULD PRODUCE
THE FEWEST NUMBER OF DEATH SENTENCES, THE POWER OF A TRIAL JUDGE TO SET
ASIDE A JURY'S VERDICT MIGHT BE OF SUBSTANTIAL IMPORTANCE.  BUT THAT,
OF COURSE, IS NOT THE QUESTION.  EXCEPT INSOFAR AS IT INCORPORATES THE
EIGHTH AMENDMENT'S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENTS--
NOT AN ISSUE IN THESE CASES-- THE DUE PROCESS CLAUSE GIVES US NO
WARRANT TO INTERFERE WITH A STATE'S DECISION TO MAKE CERTAIN CRIMES
PUNISHABLE BY DEATH.  THE DUE PROCESS CLAUSE COMMANDS US, HOWEVER, TO
MAKE CERTAIN THAT NO STATE TAKES ONE MAN'S LIFE FOR REASONS THAT IT
WOULD NOT APPLY TO ANOTHER.  AND EVEN IF IT BE ASSUMED THAT TRIAL
JUDGES OBEY THE CALIFORNIA SUPREME COURT'S DIRECTION TO EXERCISE THEIR
OWN, INDEPENDENT JUDGMENT ON THE PROPRIETY OF A JURY-IMPOSED DEATH
PENALTY, /69/  THE EXISTENCE OF THE TRIAL COURT'S POWER TO SET ASIDE
SUCH VERDICTS ADDS LITTLE TO THE LIKELIHOOD OF EVENHANDED TREATMENT. 
FOR THIS POWER IS TO BE EXERCISED IN PRECISELY THE SAME WAY AS THE
JURY'S-- WITHOUT GUIDELINE OR CHECK, WITHOUT REVIEW, WITHOUT ANY
EXPLANATION OF REASONS OR FINDINGS OF FACT, WITHOUT ANY OPPORTUNITY FOR
ULTIMATE LEGISLATIVE ACCEPTANCE OR REJECTION OF THE POLICIES APPLIED. 
IT IS TRUE THAT TRIAL JUDGES ARE IN A SENSE "PROFESSIONAL SENTENCERS";
PRESUMABLY ANY GIVEN JUDGE, TO THE EXTENT THAT HE ACTUALLY DOES
EXERCISE INDEPENDANT JUDGMENT ON THE QUESTION, /70/  WILL DO HIS BEST
TO AVOID CONSCIOUS INCONSISTENCY.  BUT THERE REMAINS A MULTIPLICITY OF
SRNTENCING JUDGES, ALL OF WHOM HAVE BEEN EXPRESSLY TOLD BY THE SUPREME
COURT OF CALIFORNIA NOT TO SEEK GUIDANCE FOR THEIR DECISION FROM THE
STATUTE, FROM THAT COURT'S OPINIONS, OR INDEED FROM ANY SOURCE OUTSIDE
THEIR OWN, INDIVIDUAL OPINIONS.  SEE SUPRA, AT 304-305.  IN SUCH
CIRCUMSTANCES, THE POSSIBILITY OF CONSISTENT DECISIONMAKING IS
NONEXISTENT.  "A MULTIPLICITY OF TRIBUNALS AND A DIVERSITY OF
PROCEDURES ARE QUITE AS APT TO PRODUCE INCOMPATIBLE OR CONFLICTING
ADJUDICATIONS AS ARE DIFFERENT RULES OF SUBSTANTIVE LAW."  GARNER V.
TEAMSTERS LOCAL 776, 346 U.S. 485, 490-491 (1953). 

THIRD.  LIKE ITS OHIO COUNTERPART, THE CALIFORNIA PROCEDURE BEFORE
US INEVITABLY OPERATES TO FRUSTRATE THE INSTITUTION OF FEDERAL JUDICIAL
REVIEW.  WE DO NOT AND CANNOT KNOW WHAT FACTS THE JURY RELIED UPON IN
DETERMINING THAT PETITIONER MCGAUTHA SHOULD BE KILLED, OR THE REASONS
UPON WHICH IT BASED THAT DECISION.  WE DO NOT KNOW-- AND CANNOT KNOW--
THE BASIS UPON WHICH THE STATE OF CALIFORNIA DETERMINED THAT HE WAS NOT
"FIT TO LIVE," PEOPLE V. MORSE, 60 CAL.2D, AT 647, 388 P.2D, AT 43.  WE
DO KNOW THAT THE PROSECUTOR, IN HER CLOSING ARGUMENT, STRONGLY URGED TO
THE JURY THAT DENNIS COUNCLE MCGAUTHA SHOULD BE KILLED BECAUSE HE HAD
THE UNREGENERATE BAD TASTE TO INSIST THAT HE HAD ONCE PLEADED GUILTY TO
A CRIME HE DID NOT COMMIT.  /71/  CF. NORTH CAROLINA V. ALFORD, 400
U.S.,AT 32-39.  WE ALSO KNEW THAT NOTHING IN THE INSTRUCTIONS GIVEN THE
JURY CONTAINED THE SLIGHTEST HINT THAT THIS COULD NOT BE THE SOLE BASIS
FOR ITS DECISION.  SEE SUPRA, AT 301-302.  AND, FINALLY, WE ALSO KNOW
THAT WHATEVER FACTORS THE STATE OF CALIFORNIA RELIED UPON TO SENTENCE
PETITIONER MCGAUTHA TO DEATH-- FACTORS PERMISSIBLE OR IMPERMISSIBLE,
APPLIED BY THE STATE TO EVERY CONVICTED CAPITAL CRIMINAL OR TO HIM
ALONE-- THERE IS NO WAY WHATSOEVER THAT PETITIONER CAN DEMONSTRATE THAT
THOSE FACTORS WERE RELIED UPON AND OBTAIN REVIEW OF THEIR PROPRIETY. 
IN SHORT, THE PROCEDURE BEFORE US IN THIS CASE SIMULTANEOUSLY INVITES
SENTENCERS TO FLOUT THE CONSTITUTION OF THE UNITED STATES AND PROMISES
THEM THAT, SHOULD THEY DO SO, THEIR ACTION IS IMMUNE FROM FEDERAL
JUDICIAL REVIEW.  /72/  ASTOUNDINGLY, THE COURT IN UPHOLDING THE
PROCEDURE EXPLICITLY COMMENDS THIS VERY FEATURE.  SEE ANTE, AT 207
208.  /73/  I DO NOT THINK THAT SUCH A PROCEDURE IS CONSISTENT WITH THE
DUE PROCESS CLAUSE, AND I WOULD ACCORDINGLY REVERSE PETITIONER
MCGAUTHA'S SENTENCE TO DEATH. 

        C 

I HAVE INDICATED ABOVE THE REASONS WHY, IN MY JUDGMENT, THE
PROCEDURES ADOPTED BY OHIO AND CALIFORNIA TO SENTENCE CONVICTED
DEFENDANTS TO DIE ARE INCONSISTENT WITH THE MOST BASIC AND FUNDAMENTAL
PRINCIPLES OF DUE PROCESS.  BUT EVEN IF I THOUGHT THESE PROCEDURES
ADEQUATE TO TRY A WELFARE CLAIM-- WHICH THEY ARE NOT, GOLDBERG V.
KELLY, 397 U.S. 254 (1970)-- I WOULD HAVE LITTLE HESITATION IN FINDING
THEM INADEQUATE WHERE LIFE ITSELF IS AT STAKE.  FOR WE HAVE LONG
RECOGNIZED THAT THE DEGREE OF PROCEDURAL REGULARITY REQUIRED BY THE DUE
PROCESS CLAUSE INCREASES WITH THE IMPORTANCE OF THE INTERESTS AT
STAKE.  SEE CAFETERIA WORKERS V. MCELROY, 367 U.S. 886, 895-896 (1961);
ID., AT 900-901 (DISSENT).  WHERE FIRST AMENDMENT INTERESTS HAVE BEEN
INVOLVED WE HAVE HELD THE STATES TO STRINGENT PROCEDURAL REQUIREMENTS
INDEED.  SEE, E.G., STANLEY V. GEORGIA, 394 U.S. 557 (1969); FREEDMAN
V. MARYLAND, 380 U.S. 51 (1965); A QUANTITY OF BOOKS V. KANSAS, 378
U.S. 205 (1964); MARCUS V. SEARCH WARRANT, 367 U.S. 717 (1961); SPEISER
V. RANDALL, 357 U.S. 513 (1958).  OF COURSE THE FIRST AMENDMENT IS "AN
INTEREST OF TRANSCENDING VALUE," ID., AT 525, BUT SO IS LIFE ITSELF. 
YET THE COURT'S OPINION TURNS THE LAW ON ITS HEAD TO CONCLUDE,
APPARENTLY, THAT BECAUSE A DECISION TO TAKE SOMEONE'S LIFE IS OF SUCH
TREMENDOUS IMPORT, THOSE WHO MAKE SUCH DECISIONS NEED NOT BE
"INHIBITED)" BY THE SAFEGUARDS OTHERWISE REQUIRED BY DUE PROCESS OF
LAW.  ANTE, AT 208.  MY BELIEF IS TO THE CONTRARY, AND I WOULD HOLD
THAT NO STATE WHICH DETERMINES TO TAKE A HUMAN LIFE IS THEREBY EXEMPTED
FROM THE CONSTITUTIONAL COMMAND THAT IT DO SO ONLY BY "DUE PROCESS OF
LAW." 

IV 

FINALLY, A FEW WORDS SHOULD BE SAID ABOUT MATTERS PERIPHERALLY
SUGGESTED BY THESE CASES.  FIRST, THESE CASES DO NOT IN THE SLIGHTEST
WAY DRAW INTO QUESTION THE POWER OF THE STATES TO DETERMINE WHETHER OR
NOT TO IMPOSE THE DEATH PENALTY ITSELF, ANY MORE THAN GIACCIO V.
PENNSYLVANIA, 382 U.S. 399 (1966), INVOLVED THE POWER OF THE STATE OF
PENNSYLVANIA TO IMPOSE CRIMINAL PUNISHMENT ON PERSONS WHO SHOULD FIRE A
PISTOL LOADED WITH BLANKS AT ANOTHER.  SECOND, THESE CASES DO NOT CALL
UPON US TO DETERMINE WHETHER PETITIONERS' TRIALS WERE "FAIRLY
CONDUCTED" IN THE WAY REFERRED TO BY MY BROTHER BLACK.  ANTE, AT 225. 
WHAT THEY DO CALL UPON US TO DETERMINE IS WHETHER THE DUE PROCESS
CLAUSE REQUIRES THE STATES, IN HIS WORDS, "TO MAKE CERTAIN THAT MEN
WOULD BE GOVERNED BY LAW, NOT THE ARBITRARY FIAT OF THE MAN OR MEN IN
POWER," IN RE WINSHIP, 397 U.S. 358, 384 (1970) (DISSENT), AND WHETHER
IF A STATE, ACTING THROUGH ITS JURY, APPLIES ONE STANDARD TO DETERMINE
THAT ONE CONVICTED CRIMINAL SHOULD DIE, "THE DUE PROCESS CLAUSE
COMMANDS THAT EVERY TRIAL IN THAT JURISDICTION MUST ADHERE TO THAT
STANDARD."  ID., AT 386.  THIRD, WE ARE NOT CALLED UPON TO DETERMINE
WHETHER "THE DEATH PENALTY IS APPROPRIATE PUNISHMENT" FOR THE
PETITIONERS BEFORE US.  ANTE, AT 221.  THAT DETERMINATION IS FOR THE
STATES.  /74/  THE COURT, HOWEVER, APPARENTLY BELIEVES THAT THE
PROCEDURES BEFORE US ARE TO BE UPHELD BECAUSE THE RESULTS IN THE
PRESENT CASES COMPORT WITH ITS OWN, UNARTICULATED NOTIONS OF CAPITAL
SENTENCING POLICY.  SEE IBID.  THIS FUNDAMENTAL MISAPPREHENSION OF THE
JUDICIAL FUNCTION PERVADES THE COURT'S OPINION, WHICH AFTER A SINGLE
BRIEF MENTION OF THE DUE PROCESS CLAUSE ENTIRELY ESCHEWS DISCUSSION OF
THE CONSTITUTION, AND INSTEAD SPEAKS ONLY OF THE CONSIDERATIONS UPON
WHICH IT BELIEVES THE STATES SHOULD REST THEIR CAPITAL SENTENCING
POLICY.  ANTE, AT 196-208. 

FINALLY, I SHOULD ADD THAT FOR SEVERAL REASONS THE PRESENT CASES DO
NOT DRAW INTO QUESTION THE POWER OF THE STATES THAT SHOULD SO DESIRE TO
COMMIT THEIR CRIMINAL SENTENCING POWERS TO A JURY.  FOR ONE THING, I
SEE NO REASON TO BELIEVE THAT JURIES ARE NOT CAPABLE OF EXPLAINING, IN
SIMPLE BUT POSSIBLY PERCEPTIVE TERMS, WHAT FACTS THEY HAVE FOUND AND
WHAT REASONS THEY HAVE CONSIDERED SUFFICIENT TO TAKE A HUMAN LIFE. 
SECOND, I HAVE ALREADY INDICATED WHY I BELIEVE THAT LIFE ITSELF IS AN
INTEREST OF SUCH TRANSCENDENT IMPORTANCE THAT A DECISION TO TAKE A LIFE
MAY REQUIRE PROCEDURAL REGULARITY FAR BEYOND A DECISION SIMPLY TO SET A
SENTENCE AT ONE OR ANOTHER TERM OF YEARS.  THIRD, WHERE JURY SENTENCING
INVOLVES SUCH A DECISION, DETERMINATION OF THE ULTIMATE QUESTION-- HOW
MANY YEARS A DEFENDANT WILL ACTUALLY SERVE-- IS GENERALLY PLACED VERY
SUBSTANTIALLY IN THE HANDS OF A PAROLE BOARD-- A SINGLE, CONTINUING
BOARD OF PROFESSIONALS WHOSE GENERAL SUPERVISION AND ACCUMULATED WISDOM
CAN GO FAR TOWARD INSURING CONSISTENCY IN SENTENCING.  AND FINALLY, IN
MOST CASES WHERE JURIES ARE ASKED TO FIX A CONVICTED DEFENDANT'S
SENTENCE AT ONE OR ANOTHER TERM OF YEARS, THEY MUST INEVITABLY BE AWARE
THAT, NO MATTER WHAT THEY DO, THE DEFENDANT WILL EVENTUALLY RETURN TO
SOCIETY.  WITH THIS IN MIND, A JURY SHOULD AT THE VERY LEAST RECOGNIZE
THAT REHABILITATION MUST BE A FACTOR OF SUBSTANTIAL WEIGHT IN ITS
DELIBERATIONS.  OF COURSE, NONE OF THESE CASES ARE BEFORE US, AND I DO
NOT MEAN TO IMPLY THAT ANY AND EVERY QUESTION OTHER THAN THE QUESTION
OF LIFE OR DEATH MAY BE SUBMITTED BY A STATE TO A JURY TO BE DETERMINED
IN ITS UNGUIDED, UNREVIEWED, AND UNREVIEWABLE DISCRETION.  BUT I CANNOT
HELP CONCLUDING THAT THE COURT'S OPINION, AT ITS CORE, RESTS UPON
NOTHING MORE SOLID THAN ITS INABILITY TO IMAGINE ANY REGIME OF CAPITAL
SENTENCING OTHER THAN THAT WHICH PRESENTLY EXISTS.  I CANNOT ASSENT TO
SUCH A BASIS FOR DECISION.  "IF WE WOULD GUIDE BY THE LIGHT OF REASON,
WE MUST LET OUR MINDS BE BOLD."  NEW STATE ICE CO. V. LIEBMANN, 285
U.S. 262, 311 (1932) (BRANDEIS, J., DISSENTING). 

/1/  MY BROTHER HARLAN CONTINUES:  "THE STABILITY AND FLEXIBILITY
THAT OUR CONSTITUTIONAL SYSTEM AT ONCE POSSESSES IS LARGELY DUE TO OUR
HAVING CARRIED OVER INTO CONSTITUTIONAL ADJUDICATION THE COMMON-LAW
APPROACH TO LEGAL DEVELOPMENT."  ID., AT 292. 

/2/  THE PROHIBITION AGAINST BILLS OF ATTAINDER, ART. I, SEC. 9, CL.
3 (FEDERAL), SEC. 10, CL. 1 (STATE), PROTECTS INDIVIDUALS OR GROUPS
AGAINST BEING SINGLED OUT FOR LEGISLATIVE INSTEAD OF JUDICIAL TRIAL. 
SEE UNITED STATES V. BROWN, 381 U.S. 437, 442-446 (1965); ID., AT 462
(DISSENT); CUMMINGS V. MISSOURI, 4 WALL.  277, 322-325 (1867).  THE
PROHIBITION AGAINST EX POST FACTO LAWS, JOINED IN THE CONSTITUTION TO
THE BAN ON BILLS OF ATTAINDER, PREVENTS LEGISLATURES FROM ACHIEVING
SIMILAR ENDS BY INDIRECTION, EITHER BY MAKING CRIMINAL ACTS THAT WERE
INNOCENT WHEN PERFORMED, CUMMINGS V. MISSOURI, SUPRA, AT 325-326;
CALDER V. BULL, 3 DALL.  386, 390 (1798) (CHASE, J.), OR BY INCREASING
THE PUNISHMENT IMPOSED UPON ADMITTEDLY CRIMINAL ACTS THAT HAVE ALREADY
BEEN COMMITTED.  IN RE MEDLEY, 134 U.S. 160, 166-173 (1890), CALDER V.
BULL, SUPRA.  THE CONSTITUTIONAL LIMITATION OF FEDERAL LEGISLATIVE
POWER TO THE CONGRESS HAS BEEN APPLIED TO REQUIRE THAT FUNDAMENTAL
POLICY CHOICES BE MADE, NOT BY PRIVATE INDIVIDUALS-- OR EVEN PUBLIC
OFFICERS-- ACTING PURSUANT TO AN UNGUIDED AND UNSUPERVISED DELEGATION
OF LEGISLATIVE AUTHORITY, BUT BY THE NATION AS A WHOLE ACTING THROUGH
CONGRESS.  SEE, E.G., FCC V. RCA COMMUNICATIONS, INC., 346 U.S. 86, 90
(1953); LICHTER V. UNITED STATES, 334 U.S. 742, 766, 769-773, 778
(1948); SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495, 529
530, 537-539 (1935); PANAMA REFINING CO. V. RYAN, 293 U.S. 388, 414-430
(1935); ID., AT 434-435 (CARDOZO, J., DISSENTING).  FINALLY, THE
REQUIREMENT OF EVENHANDED TREATMENT IMPOSED UPON THE STATES AND THEIR
AGENTS BY THE EQUAL PROTECTION CLAUSE, SEE COOPER V. AARON, 358 U.S. 1,
16-17 (1958); MCFARLAND V. AMERICAN SUGAR CO., 241 U.S. 79, 86-87
(1916) (HOLMES, J.), HAS BEEN APPLIED TO THE FEDERAL GOVERNMENT AS WELL
THROUGH THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE.  E.G., SHAPIRO V.
THOMPSON, 394 U.S. 618, 641-642 (1969); SCHNEIDER V. RUSK, 377 U.S.
163, 168-169 (1964); BOLLING V. SHARPE, 347 U.S. 497 (1954). 

/3/  THUS, ALTHOUGH RECOGNIZING THAT THE EXPLICIT CONSTITUTIONAL
PROHIBITION AGAINST EX POST FACTO LAWS APPLIES ONLY TO LEGISLATIVE
ACTION, WE HELD IN BOUIE V. CITY OF COLUMBIA, 378 U.S. 347, 353-354
(1964), THAT DUE PROCESS WAS VIOLATED BY LIKE ACTION ON THE PART OF A
STATE COURT.  SIGNIFICANTLY, THE DISSENTING JUSTICES IN BOUIE TOOK
ISSUE ONLY WITH THE COURT'S CONCLUSION THAT THE INTERPRETATION OF THE
STATUTE IN QUESTION BY THE STATE SUPREME COURT WAS NOT FORESHADOWED BY
PRIOR STATE LAW.  SEE ID., AT 366-367.  SIMILARLY, ALTHOUGH WE HAVE
HELD THE STATES NOT BOUND, AS IN THE FEDERAL GOVERNMENT, BY THE
DOCTRINE OF SEPARATION OF POWERS, DREYER V. ILLINOIS, 187 U.S. 71, 83
84 (1902); SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 255 (1957), WE HAVE
NEVERTHELESS HELD THAT STATE DELEGATION OF LEGISLATIVE AUTHOIRITY
WITHOUT GUIDELINE OR CHECK VIOLATES DUE PROCESS.  SEATTLE TRUST CO. V.
ROBERGE, 278 U.S. 116, 120-122 (1928); EUBANK V. RICHMOND, 226 U.S.
137, 143-144 (1912); CF. BROWNING V. HOOPER, 269 U.S. 396, 405-406
(1926).  SEE THE DISCUSSION INFRA, AT 271-273.  FINALLY IN HURTADO V.
CALIFORNIA, 110 U.S. 516, 535-536 (1884), QUOTED IN THE TEXT
IMMEDIATELY ABOVE, WE NOTED AS AN EXAMPLE OF A CLEAR VIOLATION OF DUE
PROCESS THE PASSAGE BY A LEGISLATURE OF A BILL OF ATTAINDER.  CF. N. 2,
SUPRA, AND CASES CITED. 

/4/  WE HAVE, OF COURSE, APPLIED SPECIFIC SUBSTANTIVE PROTECTION OF
THE BILL OF RIGHTS TO LIMIT STATE POWER UNDER THE DUE PROCESS CLAUSE. 
E.G., NEAR V. MINNESOTA, 283 U.S. 697 (1931) (FIRST AMENDMENT);
ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962) (EIGHTH AMENDMENT);
GRISWOLD V. CONNECTICUT, 381 U.S. 479, 481-486 (1965) (FIRST, THIRD,
FOURTH, FIFTH, AND NINTH AMENDMENTS).  CONVERSELY, WE HAVE HELD AT
LEAST SOME ASPECTS OF THE FOURTEENTH AMENDMENT'S EQUAL PROTECTION
CLAUSE APPLICABLE TO LIMIT FEDERAL POWER UNDER THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT.  SEE SHAPIRO V. THOMPSON, 394 U.S.,AT 641-642,
AND CASES CITED.  FINALLY, WE HAVE, OF COURSE, HELD THAT DUE PROCESS
FORBIDS A STATE FROM PUNISHING THE ASSERTION OF FEDERALLY GUARANTEED
RIGHTS WHETHER PROCEDURAL OR OTHERWISE.  NORTH CAROLINA V. PEARCE, 395
U.S. 711, 723-725 (1969); SPEVACK V. KLEIN, 385 U.S. 511 (1967); CF. EX
PARTE HULL, 312 U.S. 546 (1941).  BUT WE HAVE LONG REJECTED THE VIEW,
TYPIFIED BY, E.G., ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525 (1923),
OVERRULED IN WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379 (1937), THAT
THE DUE PROCESS CLAUSE VESTS JUDGES WITH A ROVING COMMISSION TO IMPOSE
THEIR OWN NOTIONS OF WISE SOCIAL POLICY UPON THE STATES.  FERGUSON V.
SKRUPA, 372 U.S. 726, 730-731 (1963). 

/5/  E.G., NORTH CAROLINA V. PEARCE, SUPRA, AT 725-726 (1969);
BOYKIN V. ALABAMA, 395 U.S. 238, 242-244 (1969); SEE ALSO GOLDBERG V.
KELLY, 397 U.S. 254, 269-271 (1970). 

/6/  E.G., UNITED STATES V. WADE, 388 U.S. 218, 236-239 (1967);
MIRANDA V. ARIZONA, 384 U.S. 436, 467-473 (1966); JACKSON V. DENNO, 378
U.S. 368, 377-391 (1964). 

/7/  E.G., JOHNSON V. AVERY, 393 U.S. 483, 488-490 (1969); IN RE
MURCHISON, 349 U.S. 133 (1955); SEATTLE TRUST CO. V. ROBERGE, SUPRA. 

/8/  FOR ANALYSIS IN SUBSTANTIALLY THESE TERMS, SEE, E.G., COLLINGS,
UNCONSTITUTIONAL UNCERTAINTY-- AN APPRAISAL, 49 CORNELL L.Q. 195
(1955); FREUND, THE SUPREME COURT AND CIVIL LIBERTIES, 4 VAND.L.REV. 
533 (1951); COMMENT, 53 MICH.L.REV.  264 (1954). 

/9/  A VAGUE STATUTE MAY BE APPLIED ONE WAY TO ONE PERSON AND A
DIFFERENT WAY TO ANOTHER.  ASIDE FROM THE FACT THAT THIS IN ITSELF
WOULD CONSTITUTE A DENIAL OF EQUAL PROTECTION, IEMOTKO V. MARYLAND, 340
U.S. 268, 272 (1951), CF. H. BLACK, A CONSTITUTIONAL FAITH 31-32
(1969), THE REASONS UNDERLYING DIFFERENT APPLICATIONS TO DIFFERENT
INDIVIDUALS MAY IN THEMSELVES BE CONSTITUTIONALLY IMPERMISSIBLE.  CF.
SCHACHT V. UNITED STATES, 398 U.S. 58 (1970) (APPLICABILITY OF STATUTE
DETERMINED BY POLITICAL VIEWS); YICK WO V. HOPKINDS, 118 U.S. 356
(1886) (APPLICATION OF STATUTE ON RACIAL BASIS). 

/10/  YOUNGER V. HARRIS, 401 U.S. 37 (1971), AND ITS COMPANIONS CAST
NO SHADOW UPON THE SENTENCE QUOTED. 

/11/  A CLOSELY RELATED PROPOSITION MAY BE DERIVED FROM A SEPARATE
LINE OF CASES.  IN LOUISIANA POWER & LIGHT CO. V. CITY OF THIBODAUX,
360 U.S. 25 )1959), WE UPHELD ABSTENTION BY A FEDERAL DISTRICT COURT IN
A DIVERSITY ACTION FROM DECISION WHETHER, UNDER A STATE STATUTE NEVER
CONSTRUED BY THE LOUISIANA COURTS, CITIES IN THE STATE POSSESSED THE
POWER TO TAKE LOCAL GAS AND ELECTRIC COMPANIES BY EMINENT DOMAIN.  THE
SAME DAY, IN ALLEGHENY COUNTY V. FRANK MASHUDA CO., 360 U.S. 185
(1959), WE UPHELD THE ACTION OF ANOTHER DISTRICT COURT IN REFUSING TO
ABSTAIN FROM DECISION WHETHER, UNDER STATE LAW ALLOWING TAKINGS FOR
PUBLIC BUT NOT FOR PRIVATE USE, ALLEGHENY COUNTY POSSESSED THE POWER TO
TAKE A PARTICULAR PROPERTY FOR A PARTICULAR USE.  ARE THE DECISIONS
IRRECONCILABLE?  AS WE HAVE OFTEN REMARKED, THE BASIS OF DIVERSITY
JURISDICTION IS "THE SUPPOSITION THAT, POSSIBLY, THE STATE TRIBUNALS)
MIGHT NOT BE IMPARTIAL BETWEEN THEIR OWN CITIZENS AND FOREIGNERS." 
PEASE V. PECK, 18 HOW.  595, 599 (1856).  THE QUESTION OF STATE LAW
PRESENTED IN THIBODAUX WAS A BROAD ONE HAVING SUBSTANTIAL RAMIFICATIONS
BEYOND THE LAWSUIT AT HAND.  ANY PREJUDICE AGAINST THE OUT-OF-STATE
COMPANY INVOLVED IN THAT CASE COULD HAVE BEEN GIVEN EFFECT IN STATE
COURTS ONLY AT THE COST OF A POSSIBLY INCORRECT DECISION THAT WOULD
HAVE SIGNIFICANT ADVERSE EFFECT UPON STATE CITIZENS AS WELL AS THE
PARTICULAR OUTSIDER INVOLVED IN THE SUIT.  IN MASHUDA, ON THE OTHER
HAND, DECISION ONE WAY OR ANOTHER WOULD HAVE LITTLE OR NO EFFECT BYOND
THE CASE IN QUESTION:  ANY POSSIBLE STATE BIAS AGAINST OUT-OF-STATERS
COULD BE GIVEN FULL EFFECT WITHOUT HAMPERING ANY SIGNIFICANT STATE
POLICY.  TAKEN TOGETHER, THEN, THIBODAUX AND MASHUDA MAY STAND FOR THE
PROPOSITION THAT THE POSSIBILITY OF BIAS THAT STANDS AT THE FOUNDATION
OF FEDERAL DIVERSITY JURISDICTION MAY NEVERTHELESS BE DISCOUNTED IF
THAT BIAS COULD BE GIVEN EFFECT ONLY THROUGH A DECISION THAT WILL HAVE
INEVITABLE REPERCUSSIONS ON A MATTER OF FUNDAMENTAL STATE POLICY.  PUT
ANOTHER WAY, THIBODAUX AND MASHUDA MAY SERVE TO ILLUSTRATE IN ANOTHER
CONTEXT THE PRINCIPLE THAT NECESSARILY UNDERLIES MANY OF THIS COURT'S
"VAGUENESS" DECISIONS:  THE DUE PROCESS REQUIREMENT THAT STATES MAKE
EXPLICIT THEIR CHOICE AMONG COMPETING VIEWS ON QUESTIONS OF FUNDAMENTAL
STATE POLICY SERVES TO ENFORCE THE REQUIREMENT OF EVENHANDED TREATMENT
THAT DUE PROCESS COMMANDS. 

/12/  SEE BRIEF FOR APPELLEE IN GIACCIO, NO. 47, O.T. 1965, PP. 8
10; COMMONWEALTH V. TILGHMAN, 4 S.& R. 127 (PA. SUP. CT. 1818); ACT OF
MARCH 20, 1797, 3 SMITH'S LAWS 281 (PA.). 

/13/  SOME STANDARDS WERE PROVIDED TO GUIDE THE JURY'S DECISION. 
SEE 382 U.S.,AT 403-404.  SEE APP. 30-32 IN GIACCIO FOR THE CHARGE
GIVEN IN THAT CASE. 

/14/  WE DID IN GIACCIO SAY THAT "WE INTEND TO CAST NO DOUBT
WHATEVER ON THE CONSTITUTIONALITY OF THE SETTLED PRACTICE OF MANY
STATES" PRESCRIBING JURY SENTENCING.  382 U.S.,AT 405 N. 8.  INSOFAR AS
JURY SENTENCING IN GENERAL IS CONCERNED, GIACCIO IS BY NO MEANS
NECESSARILY INCONSISTENT WITH THE PRACTICE.  SEE INFRA, AT 311. 

/15/  I FIND LITTLE SHORT OF BEWILDERING THE COURT'S TREATMENT OF
GIACCIO.  THE COURT APPEARS TO READ THAT CASE AS STANDING FOR THE
PROPOSITION THAT DUE PROCESS FORBIDS A JURY TO IMPOSE PUNISHMENT UPON
DEFENDANTS FOR CONDUCT WHICH, "ALTHOUGH NOT AMOUNTING TO THE CRIME WITH
WHICH THEY WERE CHARGED, WAS NEVERTHELESS FOUND TO BE
'REPREHENSIBLE.'"  ANTE, AT 207 N. 18.  OF COURSE, THE PROCEDURES UNDER
REVIEW PERMIT PRECISELY THE SAME ACTION, WITHOUT PROVIDING EVEN THE
MINIMAL SAFEGUARDS FOUND INSUFFICIENT IN GIACCIO.  SEE PART III,
INFRA.  IF THERE IS A DIFFERENCE BETWEEN GIACCO AND THE PRESENT CASES,
IT IS THAT THE PROCEDURES NOW UNDER REVIEW APPLY, NOT TO ACQUITTED
DEFENDANTS, BUT ONLY TO THOSE WHO HAVE ALREADY BEEN FOUND GUILTY OF
SOME CRIME.  BUT THE COURT ELSEWHERE IN ITS OPINION HAS CONCLUDED THAT
THE "RELEVANT DIFFERENCES BETWEEN SENTENCING AND DETERMINATION OF GUILT
OR INNOCENCE ARE NOT SO GREAT AS TO CALL FOR A DIFFERENCE IN
CONSTITUTIONAL RESULT."  ANTE, AT 217.  I THINK IT IS FAIR TO SAY THAT
NOWHERE IN ITS TREATMENT OF GIACCIO DOES THE COURT EVEN ATTEMPT TO
EXPLAIN WHY THE UNSPECIFIED "RELEVANT DIFFERENCES" THAT IT FINDS DO
CALL FOR "A DIFFERENCE IN CONSTITUTIONAL RESULT." 

/16/  THIS SAME POINT MAY BE MADE ANOTHER WAY.  WE HAVE CONSISTENTLY
HELD THAT DUE PROCESS CLAUSE PROTECTS INDIVIDUALS AGAINST ARBITRARY
GOVERNMENTAL ACTION.  DESPITE SHARP CONFLICT AMONG THE MEMBERS OF THIS
COURT OVER THE STANDARDS TO BE APPLIED IN DETERMINING WHETHER
GOVERNMENTAL ACTION IS IN FACT "ARBITRARY," SEE, E.G., GRISWOLD V.
CONNECTICUT, 381 U.S. 479, 499 (1965) (HARLAN, J., CONCURRING IN
JUDGMENT); ID., AT 507 (BLACK, J., DISSENTING), ALL MEMBERS OF THIS
COURT HAVE AGREED THAT THE PHRASE HAS SOME CONTENT.  E.G., GIACCIO V.
PENNSYLVANIA, 382 U.S.,AT 402 (BLACK, J.)  (DUE PROCESS REQUIRES
DEFENDANTS TO BE PROTECTED "AGAINST ARBITRARY AND DISCRIMINATORY"
PUNISHMENT).  OUR VAGUENESS CASES SUGGEST THAT STATE ACTION IS
ARBITRARY AND THEREFORE VIOLATIVE OF DUE PROCESS NOT ONLY IF IT IS (A)
BASED UPON DISTINCTIONS WHICH THE STATE IS SPECIFICALLY FORBIDDEN TO
MAKE, E.G., LOVING V. VIRGINIA, 388 U.S. 1, 12 (1967); OR (B) DESIGNED
TO, OR HAS THE EFFECT OF, PUNISHING AN INDIVIDUAL FOR THE ASSERTION OF
FEDERALLY PROTECTED RIGHTS, E.G., NORTH CAROLINA V. PEARCE, 395 U.S.
711, 723-725 (1969); ID., AT 739 (BLACK, J.), BUT ALSO IF IT IS (C)
BASED UPON A PERMISSIBLE STATE POLICY CHOICE WHICH COULD BE, BUT HAS
NEVER BEEN, EXPLICITLY MADE BY ANY RESPONSIBLE ORGAN OF THE STATE. 

/17/  "THERE ARE DOUBTLESS MAYORS WHO WOULD NOT ALLOW SUCH A
CONSIDERATION AS $12 COSTS IN EACH CASE TO AFFECT THEIR JUDGMENT IN IT.
. . . "  273 U.S.,AT 532. 

/18/  WE HELD, AS AN ALTERNATIVE GROUND, THAT THE LOUISIANA
PROCEDURE AS APPLIED HAD VIOLATED THE FIFTEENTH AMENDMENT.  380 U.S.,AT
152-153. 

/19/  SEE ALSO 378 U.S.,AT 392:  "IF THIS CASE WERE HERE UPON DIRECT
REVIEW OF JACKSON'S CONVICTION, WE COULD NOT PROCEED WITH REVIEW ON THE
ASSUMPTION THAT THESE DISPUTES HAD BEEN RESOLVED IN FAVOR OF THE STATE
FOR AS WE HAVE HELD WE ARE . . . UNABLE TO TELL HOW THE JURY RESOLVED
THESE MATTERS.  . . ." 

/20/  IT IS ESSENTIAL TO BEAR IN MIND THAT THE COMPLEXITY OF CAPITAL
SENTENCING DETERMINATIONS IS A FUNCTION OF THE PENOLOGICAL POLICY
APPLIED.  A STATE MIGHT CONCLUDE, FOR EXAMPLE, THAT MURDERERS SHOULD BE
SENTENCED TO DEATH IF AND ONLY IF THEY HAD COMMITTED MORE THAN ONE SUCH
CRIME.  APPLICATION OF SUCH A CRITERION TO THE FACTS OF ANY PARTICULAR
CASE WOULD THEN BE RELATIVELY SIMPLE. 

/21/  AS APPLIED TO THE FEDERAL GOVERNMENT, THE DOCTRINE APPEARS TO
HAVE ROOTS BOTH IN THE CONSTITUTIONAL REQUIREMENT OF SEPARATION OF
POWERS-- NOT, OF COURSE, APPLICABLE ITSELF TO THE STATES, DREYER V.
ILLINOIS, 187 U.S.,AT 83-84; SWEEZY V. NEW HAMPSHIRE, 354 U.S.,AT 255--
AND IN THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  SEE, E.G.,
WAYMAN V. SOUTHARD, 20 WHEAT.  1, 13-14 (1825) (ARGUMENT OF COUNSEL)
(DUE PROCESS AND SEPARATION OF POWERS); FIELD V. CLARK, 143 U.S. 649,
692 (1892) (SEPARATION OF POWERS); CARTER V. CARTER COAL CO., 298 U.S.
238, 310-312 (1936) (DUE PROCESS).  THE TWO DOCTRINES ARE NOT
UNRELATED:  IN THE WORDS OF MR. JUSTICE BRANDEIS, "THE DOCTRINE OF THE
SEPARATION OF POWERS WAS ADOPTED BY THE CONVENTION OF 1787, NOT TO
PROMOTE EFFICIENCY BUT TO PRECLUDE THE EXERCISE OF ARBITRARY POWER." 
MYERS V. UNITED STATES, 272 U.S. 52, 293 (1926) (DISSENT). 

/22/  AT LEAST SINCE YICK WO V. HOPKINS, 118 U.S. 356 (1886), WE
HAVE INDICATED THAT DUE PROCESS PLACES LIMITS ON THE MANNER AND EXTENT
TO WHICH A STATE LEGISLATURE MAY DELEGATE TO OTHERS POWERS WHICH THE
LEGISLATURE MIGHT ADMITTEDLY EXERCISE ITSELF.  E.G., EUBANK V.
RICHMOND, 226 U.S. 137 (1912); EMBREE V. KANSAS CITY ROAD DISTRICT, 240
U.S. 242 (1916); BROWNING V. HOOPER, 269 U.S. 396 (1926); CLINE V.
FRINK DAIRY CO., 274 U.S. 445, 457, 465 (1927); MILLER V. SCHOENE, 276
U.S. 272 (1928); SEATTLE TRUST CO. V. ROBERGE, 278 U.S. 116 (1928);
LOUISIANA V. UNITED STATES, 380 U.S. 145 (1965); GIACCIO V.
PENNSYLVANIA, 382 U.S. 399 (1966).  SEE JAFFE, LAW MAKING BY PRIVATE
GROUPS, 51 HARV.L.REV.  201 (1937). 

/23/  THE PASSAGE QUOTED IS EXPLICITLY AN EXEGESIS ON THE SEPARATION
OF POWERS.  THE POINT HERE IS THAT, AS DISCUSSED ABOVE, PRECISELY THE
SAME FUNCTIONS ARE PERFORMED BY THE DUE PROCESS CLAUSE.  FOR A RECENT
AND ORIGINAL ANALYSIS TO PRECISELY THE SAME EFFECT, SEE K. DAVIS,
ADMINISTRATIVE LAW TREATISE SECS. 2.00 TO 2.00-6 (SUPP. 1970). 

/24/  1 K.DAVIS, ADMINISTRATIVE LAW TREATISE 2.03, AT 82 (1958). 

/25/  E.G., YAKUS V. UNITED STATES, 321 U.S. 414, 423-424 (1944). 

/26/  THE PHRASE IS MR. CHIEF JUSTICE TAFT'S, FROM HAMPTON & CO. V.
UNITED STATES, 276 U.S. 394, 409 (1928). 

/27/  PROFESSION DAVIS HAS JUST RECENTLY SUGGESTED THAT, INSOFAR AS
IT PRESUPPOSES A SEARCH FOR LEGISLATIVE STANDARDS, THE DOCTRINE
PROHIBITING UNDUE DELEGATION OF LEGISLATIVE POWER BE EXPLICITLY
ABANDONED.  "THE TIME HAS COME FOR THE COURTS TO ACKNOWLEDGE THAT THE
NON-DELEGATION DOCTRINE IS UNSATISFACTORY AND TO INVENT BETTER WAYS TO
PROTECT AGAINST ARBITRARY ADMINISTRATIVE POWER. 

"THE NON-DELEGATION DOCTRINE CAN AND SHOULD BE ALTERED TO TURN IT
INTO AN EFFECTIVE AND USEFUL JUDICIAL TOOL.  ITS PURPOSE SHOULD NO
LONGER BE EITHER TO PREVENT DELEGATION OF LEGISLATIVE POWER OR TO
REQUIRE MEANINGFUL STATUTORY STANDARDS; ITS PURPOSE SHOULD BE THE MUCH
DEEPER ONE OF PROTECTING AGAINST UNNECESSARY AND UNCONTROLLED
DISCRETIONARY POWER.  THE FOCUS . . . SHOULD BE ON THE TOTALITY OF
PROTECTIONS AGAINST ARBITRARINESS, INCLUDING BOTH SAFEGUARDS AND
STADARDS."  ADMINISTRATIVE LAW TREATISE, SEC. 2.00, AT 40 (SUPP.
1970).  ADOPTION OF THIS APPROACH, HE SUGGESTS, WOULD CAUSE THE
DELEGATION DOCTRINE TO "MERGE WITH THE CONCEPT OF DUE PROCESS."  ID.,
SEC. 2.00-6, AT 58. 

/28/ OF COURSE, WHERE CONGRESS HAS INTENDED ONLY TO PROVIDE CRIMINAL
SANCTIONS INTENDED TO FURTHER A REGULATORY SCHEME IT HAS OFTEN SIMPLY
MADE CRIMINAL THE WILLFUL VIOLATION OF ADMINISTRATIVE REGULATIONS
RATHER THAN ENACTING STATUTES OUTLAWING SPECIFIC CONDUCT.  E.G., 26
U.S.C. 7203. 

/29/  E.G., BUTTFIELD V. STRANAHAN, 192 U.S. 470 (1904)
(CONGRESSIONAL DIRECTIVE TO PROHIBIT IMPORTATION OF TEA THAT IS IMPURE
OR UNFIT FOR CONSUMPTION; STANDARDS OF PURITY AND FITNESS TO BE
PRESCRIBED BY ADMINISTRATOR). 

/30/  E.G., UNITED STATES V. GRIMAUD, 220 U.S. 506 (1911)
(DELEGATION OF POWER TO MAKE REGULATIONS FOR USE OF NATIONAL FORESTS TO
"IMPROVE AND PROTECT" THE FORESTS). 

/31/  E.G., RED LION BROADCASTING CO. V. FCC, 395 U.S. 367 (1969)
("FAIRNESS DOCTRINE"); NBC V. UNITED STATES, 319 U.S. 190 (1943)
(REGULATION OF NETWORK-STATION CONTRACTS). 

/32/  MOST SUBSTANTIVE EXERCISES OF FEDERAL RULEMAKING POWER ARE NOW
GOVERNED BY THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 551 ET SEQ.
(1964 ED., SUPP. V). 

/33/  EVER SINCE WAYMAN V. SOUTHARD, 10 WHEAT.  1 (1825), WE HAVE
REGULARLY UPHELD CONGRESSIONAL DELEGATION TO COURTS AND AGENCIES OF THE
POWER TO MAKE THEIR OWN RULES OF PROCEDURE.  CF. 5 U.S.C. 553(B)(3)(A)
(1964 ED., SUPP. V), EXCEPTION PROCEDURAL RULES FROM THE REQUIREMENTS
OTHERWISE IMPOSED ON RULEMAKING PROCEDURES BY THE ADMINISTRATION
PROCEDURE ACT.  SECOND, WE HAVE REGULARLY UPHELD FEDERAL STATUTES THAT
SEEK TO FURTHER STATE POLICIES BY ADOPTING OR ENFORCING STATE LAW. 
E.G., UNITED STATES V. HOWARD, 352 U.S. 212 (1957). 

/34/  FAHEY V. MALLONEE, 332 U.S. 245, 250, 253 (1947), FOUND BROAD
STATUTORY STANDARDS DRAWING CONTENT FROM "ACCUMULATED EXPERIENCE" THAT
"ESTABLISHED WELL-DEFINED PRACTICES."  IN AMERICAN TRUCKING ASSNS.  V.
UNITED STATES, 344 U.S. 298 (1953), WE SUSTAINED AN EXERCISE OF
RULEMAKING POWER ON THE BASIS THAT THE RULES, WHICH DEALT WITH MATTERS
NOT EXPLICITLY MENTIONED IN THE STATUTE, WERE REASONABLY NECESSARY TO
PREVENT FRUSTRATION OF SPECIFIC PROVISIONS OF THE ACT.  ID., AT 310
313. 

/35/  COMPARE PERKINS V. LUKENS STEEL CO., 310 U.S. 113 (1940), WITH
66 STAT. 308, 41 U.S.C. 43A; COMPARE UNITED STATES V. WUNDERLICH, 342
U.S. 98 (1951), WITH 68 STAT. 81, 41 U.S.C. 321, 322. 

/36/  SEE, E.G., CONGRESSIONAL REVISION OF THE FEDERAL TRADE
COMMISSION'S RULE REGARDING CIGARETTE ADVERTISING, 29 FED.REG.  8325
(1964) IN 79 STAT. 282 (1965). 

/37/  ACCARDI V. SHAUGHNESSY, 347 U.S. 260 (1954). 

/38/  LICHTER HAS BEEN TERMED BY PROFESSOR DAVIS "IN SOME RESPECTS
THE GREATEST DELEGATION UPHELD BY THE SUPREME COURT."  1 K.DAVIS,
ADMINISTRATIVE LAW TREATISE 2.03, AT 86 (1958). 

/39/  AND, AS THE COURT NOTES, SUBSTANTIALLY ADOPTED IN ONE PROPOSAL
OF THE NATIONAL COMMISSION ON REFORM OF THE FEDERAL CRIMINAL LAWS. 

/40/  I DO NOT MEAN TO IMPLY, OF COURSE, THAT ANY STATE HAS OR IS
COMPELLED TO HAVE A SINGLE, UNIFORM PENOLOGICAL POLICY APPLICABLE TO
ALL CRIMES.  PRESUMABLY A STATE MAY, FOR EXAMPLE, SEEK TO REHABILITATE
BURGLARS BUT PURSUE ONLY DETERRENCE IN SENTENCING PARKING VIOLATORS. 

/41/  OF COURSE, ON OCCASION DIFFICULT PROBLEMS OF IDENTITY OR THE
VALIDITY OF PRIOR CONVICTIONS MIGHT ARISE. 

/42/  SEE PART III, INFRA. 

/43/  THE LITERATURE IS SURVEYED IN H. PACKER, THE LIMITS OF THE
CRIMINAL SANCTION (1968), REVIEWED, 79 YALE L.J. 1388 (1970). 

/44/  SUCH WAIVER IS APPARENTLY NOT A MATTER OF RIGHT WHEN THE TRIAL
COURT, EITHER FROM REPRESENTATION BY DEFENSE COUNSEL OR FROM OTHER
INFORMATION THAT HAS COME TO ITS ATTENTION, HAS REASON TO BELIEVE THAT
THE DEFENDANT IS PRESENTLY INSANE.  SEE STATE V. SMITH, SUPRA. 

/45/  APPARENTLY THERE IS NO SUCH THING IN OHIO AS A PLEA OF GUILTY
TO FIRST-DEGREE MURDER.  OHIO REV. CODE ANN. SEC. 2945.06 (1954)
PROVIDES THAT IF A DEFENDANT "PLEADS GUILTY OF MURDER IN THE FIRST
DEGREE, A COURT COMPOSED OF THREE JUDGES SHALL EXAMINE THE WITNESSES,
DETERMINE THE DEGREE OF CRIME, AND PRONOUNCE SENTENCE ACCORDINGLY." 

/46/  THE STATUTE IS NOT LIMITED BY ITS TERMS TO ANY PARTICULAR
CLASS OF CASES, AND THE QUESTION APPEARS NEVER TO HAVE BEEN DISCUSSED
IN THE REPORTED OPINIONS. 

/47/  SEE INFRA, AT 292-293. 

/48/  SEE SUPRA, AT 288-289. 

/49/  SEE OHIO REV. CODE SEC. 2947.05 (1954); SUPRA, AT 288-289. 

/50/  SEE OHIO REV. CODE SEC. 2947.06 (SUPP. 1970); SUPRA, AT 289. 

/51/  IN ADDITION, THE EVIDENCE BEFORE THE SENTENCING AUTHORITY--
AND THEREFORE THE POSSIBLE BASES FOR ITS DECISION-- WILL VARY
SUBSTANTIALLY WITH A NUMBER OF FACTORS, SUCH AS THE PRESENCE OR ABSENCE
OF AN INSANITY DEFENSE, THE WILLINGNESS VEL NON OF A DEFENDANT TO WAIVE
THE PRIVILEGE AGAINST SELF-INCRIMINATION, AND SO FORTH.  IN THIS
CONTEXT THE IRRATIONAL NATURE OF A UNITARY TRIAL IS PARTICULARLY
CONSPICUOUS.  A JURY THAT CONSIDERED RECIDIVISM RELEVANT TO ITS
SENTENCING DETERMINATION COULD OBTAIN INFORMATION WITH RESPECT TO THAT
POINT ONLY IF THE DEFENDANT SHOULD TESTIFY, OR IF EVIDENCE OF OTHER
CRIMES SHOULD BE RELEVANT (FOR REASONS SUCH AS MOTIVE, IDENTITY, AND SO
FORTH) TO THE QUESTION OF GUILT. 

/52/  OHIO DOES EXCLUDE JURORS WITH CONSCIENTIOUS SCRUPLES AGAINST
CAPITAL PUNISHMENT, STATE V. CARTER, 21 OHIO ST.2D 212, 256 N.E.2D 714
(1970). 

/53/  OF COURSE, CODEFENDANTS MAY BE TRIED BY THE SAME JURY, AND
SOME JURORS MAY AT SOME TIME HAVE SAT ON ANOTHER CAPITAL CASE.  NOTHING
SUGGESTS, HOWEVER, THAT THE LATTER CLASS OF JURORS IS ANYTHING BUT AN
INSUBSTANTIAL ONE.  IN LIGHT OF THE FACT THAT FIRST-DEGREE MURDER
CONVICTIONS IN THE PERIOD 1959-1968 NEVER EXCEEDED 58 PER YEAR,
EVIDENCE THAT A SIGNIFICANT NUMBER OF JURORS WERE INVOLVED IN MORE THAN
ONE CAPITAL SENTENCING DETERMINATION WOULD SEEM TO RAISE SUBSTANTIAL
QUESTIONS ABOUT THE RANDOMNESS OF THE JURY SELECTION PROCEDURES. 

/54/  NO MATTER HOW BROAD THE SCOPE OF STATE POWER TO DETEMINE WHEN
THE DEATH PENALTY SHOULD BE INFLICTED, IT CANNOT BE SERIOUSLY
QUESTIONED THAT ITS INFLICTION FOR SOME REASONS IS CONSTITUTIONALLY
IMPERMISSIBLE.  YET NOTHING IN THE OHIO PROCEDURE BEFORE US PREVENTS A
JURY FROM RELYING UPON IMPERMISSIBLE REASONS, OR ALLOWS ANYONE TO
DETERMINE WHETHER THIS IS WHAT THE JURY HAS DONE. 

/55/  CAL. PENAL CODE SEC. 4500 (1970) DEFINES THE MANDATORY CAPITAL
CRIME OF ASSAULT WITH MALICE AFORETHOUGHT WITH MEANS LIKELY TO CAUSE
GREAT BODILY INJURY BY A PRISONER UNDER SENTENCE OF LIFE IMPRISONMENT,
WHERE THE PERSON ASSAULTED IS NOT A FELLOW INMATE, AND DIES WITHIN A
YEAR AND A DAY.  AMICI N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL FUND,
INC., AND NATIONAL OFFICE FOR THE RIGHTS OF THE INDIGENT, REPRESENT
WITHOUT CONTRADICTION ELSEWHERE THAT THIS IS THE ONLY MANDATORY CAPITAL
STATUTE PRESENTLY IN ACTIVE USE IN THE UNITED STATES.  SEE BRIEF AMICI
CURIAE 15 N. 19. 

/56/  CAL. PENAL CODE SEC. 190.1 (1970) PROVIDES, IN PERTINENT PART:
"IF (A) PERSON HAS BEEN FOUND GUILTY OF AN OFFENSE PUNISHABLE BY LIFE
IMPRISONMENT OR DEATH, AND HAS BEEN FOUND SANE ON ANY PLEA OF NOT
GUILTY BY REASON OF INSANITY, THERE SHALL THEREUPON BE FURTHER
PROCEEDINGS ON THE ISSUE OF PENALTY, AND THE TRIER OF FACT SHALL FIX
THE PENALTY.  EVIDENCE MAY BE PRESENTED AT THE FURTHER PROCEEDINGS ON
THE ISSUE OF PENALTY, OF THE CIRCUMSTANCES SURROUNDING THE CRIME, OF
THE DEFENDANT'S BACKGROUND AND HISTORY, AND OF ANY FACTS IN AGGRAVATION
OR MITIGATION OF THE PENALTY.  THE DETERMINATION OF THE PENALTY OF LIFE
IMPRISONMENT OR DEATH SHALL BE IN THE DISCRETION OF THE COURT OR JURY
TRYING THE ISSUE OF FACT ON THE EVIDENCE PRESENTED, AND THE PENALTY
FIXED SHALL BE EXPRESSLY STATED IN THE DECISION OR VERDICT.  . . . 

"IF THE DEFENDANT WAS CONVICTED BY THE COURT SITTING WITHOUT A JURY,
THE TRIER OF FACT SHALL BE THE COURT.  IF THE DEFENDANT WAS CONVICTED
BY A PLEA OF GUILTY, THE TRIER OF FACT SHLL BE A JURY UNLESS A JURY IS
WAIVED.  IF THE DEFENDANT WAS CONVICTED BY A JURY, THE TRIER OF FACT
SHALL BE THE SAME JURY UNLESS, FOR GOOD CAUSE SHOWN, THE COURT
DISCHARGES THAT JURY IN WHICH CASE A NEW JURY SHALL BE DRAWN TO
DETERMINE THE ISSUE OF PENALTY. 

"IN ANY CASE IN WHICH DEFENDANT HAS BEEN FOUND GUILTY BE A JURY, AND
THE SAME OR ANOTHER JURY, TRYING THE ISSUE OF PENALTY IS UNABLE TO
REACH A UNANIMOUS VERDICT ON THE ISSUE OF PENALTY, THE COURT SHALL
DISMISS THE JURY AND EITHER IMPOSE THE PUNISHMENT OF LIFE IN LIEU OF
ORDERING A NEW TRIAL ON THE ISSUE OF PENALTY, OR ORDER A NEW JURY
IMPANELED TO TRY THE ISSUE OF PENALTY, BUT THE ISSUE OF GUILT SHALL NOT
BE RETRIED BY SUCH JURY."     /57/  SEE CAL. CONST., ART. I, SEC. 7;
PEOPLE V. KING, 1 CAL.3D 791, 463 P.2D 753 (1970). 

/58/  SEE N. 56, SUPRA. 

/59/  THE PROCEEDINGS LEADING TO THAT DETERMINATION ARE, AS INDICATED
IN THE TEXT IMMEDIATELY FOLLOWING, REVIEWABLE. 

/60/  MORSE NOTED THAT "(WHEN WE OPENED THE DOOR A SLIGHT CRACK TO
ALLOW AN INSTRUCTION, AND TO ADMIT AN EVIDENTIARY SHOWING, AS TO THE
REALISTIC CONSEQUENCE OF A SENTENCE OF LIFE IMPRISONMENT, WE HAD IN
MIND A LIMITED AND LEGITIMATE OBJECTIVE.  BUT VARIOUS MANEUVERS HAVE
PUSHED THE DOOR SO WIDELY AJAR THAT TOO MANY CONFUSING ELEMENTS HAVE
ENTERED THE COURTROOM."  60 CAL.2D, AT 639, 388 P.2D, AT 38. 

/61/  KIDD HELD THAT A DEFENDANT COULD NOT SUBMIT EVIDENCE THAT
CAPITAL PUNISHMENT WAS AN INEFFECTIVE DETERRENT BECAUSE "(INNUMERABLE
WITNESSES COULD BE PRODUCED TO TESTIFY ON BOTH SIDES OF THE QUESTION"
AND BECAUSE, QUOTING LOVE, "(JURIES IN CAPITAL CASES CANNOT BECOME
LEGISLATURES AD HOC."  56 CAL.2D, AT 770, 366 P.2D, AT 56.  LOVE HELD
ARGUMENT OF COUNSEL IMPERMISSIBLE BECAUSE EVIDENCE ON THE QUESTION WAS
IMPERMISSIBLE.  56 CAL.2D, AT 731, 366 P.2D, AT 39. 

/62/  THE BASIS FOR THIS RULING IS THAT THE ISSUE HAS BEEN
FORECLOSED BY THE STATUTE ALLOWING CAPITAL PUNISHMENT TO BE IMPOSED. 

/63/  THIS RULES IS BASED, APPARENTLY, UPON THE NOTION THAT SUCH
EVIDENCE WOULD BE UNDULY INFLAMMATORY.  SEE PEOPLE V. FLOYD, 1 CAL.3D
694, 464 P.2D 64 (1970). 

/64/  PEOPLE V. BANDHAUER, 66 CAL.2D 524, 426 P.2D 900 (1967),
STRUCK DOWN PROSPECTIVELY THE EARLIER PRACTICE OF ALLOWING THE
PROSECUTION TO OPEN AND CLOSE THE ARGUMENTS AS INCONSISTENT WITH THE
LEGISLATURE'S "STRICT NEUTRALITY" CONCERNING THE CHOICE OF LIFE OR
DEATH.  ID., AT 531, 426 P.2D, AT 905. 

/65/  CALIFORNIA JURY INSTRUCTIONS, CRIMINAL, PARA. 8.80 (3D REV.
ED., 1970). 

/66/  THE ELIDED PARAGRAPH, NOT INCLUDED IN THE STANDARD INSTRUCTION
REFERRED TO, INSTRUCTED THE JURY THAT IT COULD NOT CONSIDER EVIDENCE OF
OTHER CRIMES AGAINST A DEFENDANT UNLESS THE OTHER CRIMES WERE PROVED
BEYOND A REASONABLE DOUBT.  THE JURY BELOW WAS ALSO INSTRUCTED THAT
"THE LAW DOES NOT FORBID YOU FROM BEING INFLUENCED BY PITY FOR THE
DEFENDANTS AND YOU MAY BE GOVERNED BY MERE SENTIMENT AND SYMPATHY FOR
THE DEFENDANTS."  APP. 221-222. 

/67/  THE JURY WAS SO INSTRUCTED IN THE PRESENT CASE; SEE SUPRA, AT
301-302.  IN LIGHT OF THIS IT IS MYSTIFYING TO FIND THE COURT RELYING,
ANTE, AT 201-202, ON THE FOLLOWING QUOTATION FROM WITHERSPOON V.
ILLINOIS, 391 U.S. 510, 519 (1968), TO SUSTAIN THE CALIFORNIA PROCEDURE
"(CAPITAL SENTENCING JURIES) DO LITTLE MORE-- AND MUST DO NOTHING LESS-
THAN EXPRESS THE CONSCIENCE OF THE COMMUNITY ON THE ULTIMATE QUESTION
OF LIFE OR DEATH." 

/68/  THAT IS, THE COURT IS TO EXERCISE THE SAME UNLIMITED POWER GIVEN
TO THE JURY. 

/69/  APPARENTLY THE TRIAL JUDGE DID NOT DO SO IN THIS CASE:
DENYING PETITIONER MCGAUTHA'S MOTION FOR REDUCTION OF PENALTY, HE SAID:
"(CERTAINLY THIS COURT, I DO NOT THINK, EXCEPT IN MOST UNUSUAL
CIRCUMSTANCES, IS JUSTIFIED IN PLACING THE COURT'S JUDGMENT OVER AND
ABOVE THAT OF THE 12 PEOPLE WHO HAVE CAREFULLY DELIBERATED UPON THIS
CASE AND DECIDED THAT THE PROPER PENALTY IN THIS CASE SHOULD NOT BE
LIFE IMPRISONMENT."  APP. 243. 

/70/  SEE N. 69, SUPRA. 

/71/  "(MCGAUTHA) HAS THREE ROBBERIES.  HE HAS OVER TEN YEARS IN
PRISON, AND HE HAS ANOTHER KILLING, AND YOU WILL HAVE ALL THOSE
DOCUMENTS IN FRONT OF YOU IN THE JURY ROOM ABOUT HIS PRIOR RECORD, AND
THE THING ABOUT HIS PRIOR RECORD IS THE WAY IN WHICH HE MINIMIZES HIS
INVOLVEMENT.  CAN YOU IMAGINE THAT THE FIRST PRIOR I THINK WE HAD ON
HIM WAS A ROBBERY, AND HE HAS THE NERVE TO SIT UP THERE ON THE WITNESS
STAND AND TELL THOSE PEOPLE, 'I PLEADED GUILTY TO ROBBERY, BUT I DIDN'T
REALLY DO THAT ROBBERY,' AND THEN HE TELLS THEM ABOUT THE SECOND
ROBBERY.  THE FRIENDS WHOM HE WAS GIVING A RIDE WERE INVOLVED IN THAT
SECOND ROBBERY.  HE DIDN'T COMMIT THAT ROBBERY, BUT HE PLEADED GUILTY
TO IT.  HE GOT SENTENCED TO 10 YEARS AND HE SERVED SIX YEARS. 

"WHAT KIND OF PERSON DO WE HAVE HERE WHO, HAVING SPENT ALL THAT TIME
IN PRISON, STILL IS UNWILLING TO ACKNOWLEDGE HIS PARTICIPATION IN
CRIME?"  APP. 204-205. 

/72/  A PECULIARITY OF CALIFORNIA LAW RAISES ANOTHER, MORE SUBTLE,
POINT.  JURIES, AS NOTED, ARE NOT REQUIRED TO BASE THEIR DECISION ON
ANY PARTICULAR FINDINGS OF FACT.  BUT IF A GIVEN JURY SHOULD DETERMINE
TO IMPOSE THE DEATH SENTENCE ONLY IF IT FOUND PARTICULAR FACTS THAT IT
THOUGHT RELEVANT, IT STILL WOULD NOT BE REQUIRED TO FIND THOSE FACTS BY
EVEN A PREPONDERANCE OF THE EVIDENCE.  PEOPLE V. HINES, 61 CAL.2D 164,
173, 390 P.2D 398, 404 (1964).  I DO NOT SUGGEST THAT DUE PROCESS
REQUIRES SUCH FACTS TO BE FOUND BEYOND A REASONABLE DOUBT, OR THAT WE
COULD REVERSE ON DUE PROCESS GROUNDS A CONVICTION OR SENTENCE THAT WE
BELIEVED CONTRARY TO THE WEIGHT OF THE EVIDENCE.  BUT THERE IS IN MY
MIND A SERIOUS QUESTION WHETHER A STATE MAY CONSTITUTIONALLY ALLOW ITS
CHOSEN TRIER OF FACT TO BASE A DETERMINATION TO KILL ANY PERSON ON
FACTS THAT THE TRIER OF FACT HIMSELF DOES NOT BELIEVE ARE SUPPORTED BY
THE WEIGHT OF THE EVIDENCE.  CF. IN RE WINSHIP, 397 U.S. 358, 370, 371
373 (1970) (HARLAN, J., CONCURRING) (STANDARD OF PROOF REQUIRED BY DUE
PROCESS DEPENDS UPON THE "CONSEQUENCES OF AN ERRONEOUS FACTUAL
DETERMINATION"). 

/73/  THE COURT, TO BE SURE, REFERS ONLY TO JURY CONSIDERATION OF
ARGUMENTS SUGGESTED BY "DEFENSE COUNSEL."  I DO NOT, HOWEVER,
UNDERSTAND THE COURT TO IMPLY THAT THE ARGUMENTS OF COUNSEL FOR THE
STATE ARE GIVEN ANY LESS CONSIDERATION. 

/74/  EXCEPT, OF COURSE, INSOFAR AS STATE POWER MAY BE RESTRICTED BY
THE EIGHTH AMENDMENT, A QUESTION NOT INVOLVED IN THESE CASES. 

HERMAN F. SELVIN, BY APPOINTMENT OF THE COURT, 400 U.S. 885, ARGUED
THE CAUSE AND FILED BRIEFS FOR PETITIONER IN NO. 203.  JOHN J.
CALLAHAN, BY APPOINTMENT OF THE COURT, 399 U.S. 924, ARGUED THE CAUSE
FOR PETITIONER IN NO. 204.  WITH HIM ON THE BRIEF WERE DAN H.
MCCULLOUGH, WILLIAM T. BURGESS, WILLIAM D. DRISCOLL, AND GERALD S.
LUBITSKY. 

RONALD M. GEORGE, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT IN NO. 203.  WITH HIM ON THE BRIEF WERE THOMAS C.
LYNCH, ATTORNEY GENERAL, AND WILLIAM E. JAMES, ASSISTANT ATTORNEY
GENERAL.  MELVIN L. RESNICK ARGUED THE CAUSE FOR RESPONDENT IN NO.
204.  WITH HIM ON THE BRIEF WERE HARRY FRIBERG AND ALICE L. ROBIE
RESNICK. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE URGING AFFIRMANCE IN BOTH CASES.  WITH HIM ON THE BRIEF
WAS PHILIP A. LACOVARA. 

JACK GREENBERG, JAMES M. NABRIT III, MICHAEL MELTSNER, AND ANTHONY
G. AMSTERDAM FILED A BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL
FUND, INC., ET AL. AS AMICI CURIAE IN BOTH CASES.  LUKE MCKISSACK FILED
A BRIEF AS AMICUS CURIAE IN NO. 203.  BRIEFS OF AMICI CURIAE IN NO. 204
WERE FILED BY RICHARD F. STEVENS FOR THE ATTORNEY GENERAL OF OHIO; BY
ELMER GERTZ AND WILLARD J. LASSERS FOR THE AMERICAN CIVIL LIBERTIES
UNION, ILLINOIS DIVISION, ET AL.; AND BY MESSRS.  LASSERS, GERTZ, ALEX
ELSON, AND MARVIN BRAITERMAN FOR THE AMERICAN FRIENDS SERVICE COMMITTEE
ET AL.
..END :




















BLONDER-TONGUE V. UNIVERSITY FOUNDATION, 402 U.S. 313 


       BLONDER-TONGUE LABORATORIES, INC. V. UNIVERSITY OF ILLINOIS

           FOUNDATION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

        NO. 338.  ARGUED JANUARY 14, 1971-- DECIDED MAY 3, 1971 


THIS COURT'S HOLDING IN TRIPLETT V. LOWELL, 297 U.S. 638, THAT A
DETERMINATION OF PATENT INVALIDITY IS NOT RES JUDICATA AGAINST THE
PATENTEE IN SUBSEQUENT LITIGATION AGAINST A DIFFERENT DEFENDANT
OVERRULED TO THE EXTENT THAT IT FORECLOSES AN ESTOPPEL PLEA BY ONE
FACING A CHARGE OF INFRINGEMENT OF A PATENT THAT HAS ONCE BEEN DECLARED
INVALID, AND IN THIS INFRINGEMENT SUIT WHERE BECAUSE OF TRIPLETT
PETITIONER DID NOT PLEAD ESTOPPEL AND THE PATENTEE HAD NO OPPORTUNITY
TO CHALLENGE THE APPROPRIATENESS OF SUCH A PLEA THE PARTIES SHOULD BE
ALLOWED TO AMEND THEIR PLEADINGS AND INTRODUCE EVIDENCE ON THE ESTOPPEL
ISSUE.  PP. 317-350. 

422 F.2D 769, VACATED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT UNIVERSITY OF ILLINOIS FOUNDATION (HEREAFTER FOUNDATION)
IS THE OWNER BY ASSIGNMENT OF U.S. PATENT NO. 3,210,767, ISSUED TO
DWIGHT E. ISBELL ON OCTOBER 5, 1965.  THE PATENT IS FOR "FREQUENCY
INDEPENDENT UNIDIRECTIONAL ANTENNAS," AND ISBELL FIRST FILED HIS
APPLICATION MAY 3, 1960.  THE ANTENNAS COVERED ARE DESIGNED FOR
TRANSMISSION AND RECEPTION OF ELECTROMAGNETIC RADIO FREQUENCY SIGNALS
USED IN MANY TYPES OF COMMUNICATIONS, INCLUDING THE BROADCASTING OF
RADIO AND TELEVISION SIGNALS. 

THE PATENT HAS BEEN MUCH LITIGATED SINCE IT WAS GRANTED, PRIMARILY
BECAUSE IT CLAIMS A HIGH QUALITY TELEVISION ANTENNA FOR COLOR
RECEPTION.  /1/  ONE OF THE FIRST INFRINGEMENT SUITS BROUGHT BY THE
FOUNDATION WAS FILED IN THE SOUTHERN DISTRICT OF IOWA AGAINST THE
WINEGARD CO., AN ANTENNA MANUFACTURER.  /2/  TRIAL WAS TO THE COURT,
AND AFTER PURSUING THE INQUIRY MANDATED BY GRAHAM V. JOHN DEERE CO.,
383 U.S. 1, 17-18 (1966), CHIEF JUDGE STEPHENSON HELD THE PATENT
INVALID SINCE "IT WOULD HAVE BEEN OBVIOUS TO ONE ORDINARILY SKILLED IN
THE ART AND WISHING TO DESIGN A FREQUENCY INDEPENDENT UNIDIRECTIONAL
ANTENNA TO COMBIN THESE THREE OLD ELEMENTS, ALL SUGGESTED BY THE PRIOR
ART REFERENCES PREVIOUSLY DISCUSSED."  UNIVERSITY OF ILLINOIS
FOUNDATION V. WINEGARD CO., 271 F.SUPP.  412, 419 (SD IOWA 1967)
(FOOTNOTE OMITTED).  /3/  ACCORDINGLY, HE ENTERED JUDGMENT FOR THE
ALLEGED INFRINGER AND AGAINST THE PATENTEE.  ON APPEAL, THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT UNANIMOUSLY AFFIRMED JUDGE STEPHENSON. 
402 F.2D 125 (1968).  WE DENIED THE PATENTEE'S PETITION FOR
CERTIORARI.  394 U.S. 917 (1969). 

IN MARCH 1966, WELL BEFORE JUDGE STEPHENSON HAD RULED IN THE
WINEGARD CASE, THE FOUNDATION ALSO FILED SUIT IN THE NORTHERN DISTRICT
OF ILLINOIS CHARGING A CHICAGO CUSTOMER OF PETITIONER, BLONDER-TONGUE
LABORATORIES, INC. (HEREAFTER B-T), WITH INFRINGING TWO PATENTS IT
OWNED BY ASSIGNMENT:  THE ISBELL PATENT AND U.S. PATENT NO. RE. 25,740,
REISSUED MARCH 9, 1965, TO P. E. JAYES ET AL. THE MAYES PATENT WAS
ENTITLED "LOG PERIODIC BACKWARD WAVE ANTENNA ARRAY," AND WAS, AS
INDICATED, A REISSUE OF NO. 3,108,280, APPLIED FOR ON SEPTEMBER 30,
1960.  B-T CHOSE TO SUBJECT ITSELF TO THE JURISDICTION OF THE COURT TO
DEFEND ITS CUSTOMER, AND IT FILED AN ANSWER AND COUNTERCLAIM AGAINST
THE FOUNDATION AND ITS LICENSEE, RESPONDENT JFD ELECTRONICS CORP.,
CHARGING:  (1) THAT BOTH THE ISBELL AND MAYES PATENTS WERE INVALID; (2)
THAT IF THOSE PATENTS WERE VALID, THE B-T ANTENNAS DID NOT INFRINGE
EITHER OF THEM; (3) THAT THE FOUNDATION AND JFD WERE GUILTY OF UNFAIR
COMPETITION; (4) THAT THE FOUNDATION AND JFD HAD VIOLATED THE "ANTI
TRUST LAWS OF THE UNITED STATES, INCLUDING THE SHERMAN AND CLAYTON
ACTS, AS AMENDED"; AND (5) THAT CERTAIN JFD ANTENNA MODELS INFRINGED B
T'S PATENT NO. 3,259,904, "ANTENNA HAVING COMBINED SUPPORT AND LEAD
IN," ISSUED ON JULY 5, 1966. 

TRIAL WAS AGAIN TO THE COURT, AND ON JUNE 27, 1968, JUDGE HOFFMAN
HELD THAT THE FOUNDATION'S PATENTS WERE VALID AND INFRINGED, DISMISSED
THE UNFAIR COMPETITION AND ANTITRUST CHARGES, AND FOUND CLAIM 5 OF THE
B-T PATENT OBVIOUS AND INVALID.  BEFORE DISCUSSING THE ISBELL PATENT IN
DETAIL, JUDGE HOFFMAN NOTED THAT IT HAD BEEN HELD INVALID AS OBVIOUS BY
JUDGE STEPHENSON IN THE WINEGARD LITIGATION.  HE STATED: 

"THIS COURT IS, OF COURSE, FREE TO DECIDE THE CASE AT BAR ON THE
BASIS OF THE EVIDENCE BEFORE IT.  TRIPLETT V. LOWELL, 297 U.S. 638, 642
(1936).  ALTHOUGH A PATENT HAS BEEN ADJUDGED INVALID IN ANOTHER PATENT
INFRINGEMENT ACTION AGAINST OTHER DEFENDANTS, PATENT OWNERS CANNOT BE
DEPRIVED 'OF THE RIGHT TO SHOW, IF THEY CAN, THAT, AS AGAINST
DEFENDANTS WHO HAVE NOT PREVIOUSLY BEEN IN COURT, THE PATENT IS VALID
AND INFRINGED.'  AGHNIDES V. HOLDEN, 22(6) F.2D 949, 951 (7TH CIR.
1955).  ON THE BASIS OF THE EVIDENCE BEFORE IT, THIS COURT DISAGREES
WITH THE CONCLUSION REACHED IN THE WINEGARD CASE AND FINDS BOTH THE
ISBELL PATENT AND THE MAYES ET AL. PATENT VALID AND ENFORCEABLE
PATENTS."  APP. 73. 

B-T APPEALED, AND THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
AFFIRMED:  (1) THE FINDINGS THAT THE ISBELL PATENT WAS BOTH VALID AND
INFRINGED BY B-T'S PRODUCTS; (2) THE DISMISSAL OF B-T'S UNFAIR
COMPETITION AND ANTITRUST COUNTERCLAIMS; AND (3) THE FINDING THAT CLAIM
5 OF THE B-T PATENT WAS OBVIOUS.  HOWEVER, THE COURT OF APPEALS
REVERSED THE JUDGMENT INSOFAR AS JUDGE HOFFMAN HAD FOUND THE MAYES
PATENT VALID AND ENFORCEABLE, ENJOINED INFRINGEMENT THEREOF, AND
PROVIDED DAMAGES FOR SUCH INFRINGEMENT.  422 F.2D 769 (1970). 

B-T SOUGHT CERTIORARI, ASSIGNING THE CONFLICT BETWEEN THE COURTS OF
APPEALS FOR THE SEVENTH AND EIGHTH CIRCUITS AS TO THE VALIDITY OF THE
ISBELL PATENT AS A PRIMARY REASON FOR GRANTING THE WRIT.  /4/  WE
GRANTED CERTIORARI, 400 U.S. 864 (1970), AND SUBSEQUENTLY REQUESTED THE
PARTIES TO DISCUSS THE FOLLOWING ADDITIONAL ISSUES NOT RAISED IN THE
PETITION FOR REVIEW: 

     "1.  SHOULD THE HOLDING OF TRIPLETT V. LOWELL, 297 U.S. 638,

  THAT A DETERMINATION OF PATENT INVALIDITY IS NOT RES JUDICATA AS

 AGAINST THE PATENTEE IN SUBSEQUENT LITIGATION AGAINST A DIFFERENT

  DEFENDANT, BE ADHERED TO? 

     "2.  IF NOT, DOES THE DETERMINATION OF INVALIDITY IN THE

  WINEGARD LITIGATION BIND THE RESPONDENTS IN THIS CASE?" 

        I 

IN TRIPLETT V. LOWELL, 297 U.S. 638 (1936), THIS COURT HELD: 

     "NEITHER REASON NOR AUTHORITY SUPPORTS THE CONTENTION THAT AN

  ADJUDICATION ADVERSE TO ANY OR ALL THE CLAIMS OF A PATENT

  PRECLUDES ANOTHER SUIT UPON THE SAME CLAIMS AGAINST A DIFFERENT

  DEFENDANT.  WHILE THE EARLIER DECISION MAY BY COMITY BE GIVEN

  GREAT WEIGHT IN A LATER LITIGATION AND THUS PERSUADE THE COURT TO

  RENDER A LIKE DECREE, IT IS NOT RES ADJUDICATA AND MAY NOT BE

  PLEADED AS A DEFENSE."  207 U.S.,AT 642. 

THE HOLDING IN TRIPLETT HAS BEEN AT LEAST GENTLY CRITICIZED BY SOME
JUDGES.  IN ITS OPINION IN THE INSTANT CASE, THE COURT OF APPEALS FOR
THE SEVENTH CIRCUIT RECOGNIZED THE TRIPLETT RULE BUT NEVERTHELESS
REMARKED THAT IT "WOULD SEEM SOUND JUDICIAL POLICY THAT THE
ADJUDICATION OF (THE QUESTION OF THE ISBELL PATENT'S VALIDITY) AGAINST
THE FOUNDATION IN ONE ACTION WHERE IT WAS A PARTY WOULD PROVIDE A
DEFENSE IN ANY OTHER ACTION BY THE FOUNDATION FOR INFRINGEMENT OF THE
SAME PATENT."  422 F.2D, AT 772.  /5/ 

IN ITS BRIEF HERE, THE FOUNDATION URGES THAT THE RULE OF TRIPLETT BE
MAINTAINED.  PETITIONER B-T'S BRIEF TOOK THE SAME POSITION, STATING
THAT "(THOUGH PETITIONERS STAND TO GAIN BY ANY SUCH RESULT, WE CANNOT
URGE THE DESTRUCTION OF A LONG-ACCEPTED SAFEGUARD FOR PATENTEES MERELY
FOR THE EXPEDIENCY OF VICTORY."  BRIEF FOR PETITIONER 12.  THE
GOVERNMENT, HOWEVER, APPEARING AS AMICUS CURIAE, URGES THAT TRIPLETT
WAS BASED ON UNCRITICAL ACCEPTANCE OF THE DOCTRINE OF MUTUALITY OF
ESTOPPEL, SINCE LIMITED SIGNIFICANTLY, AND THAT THE TIME HAS COME TO
MODIFY TRIPLETT SO THAT "CLAIMS OF ESTOPPEL IN PATENT CASES (ARE)
CONSIDERED ON A CASE BY CASE BASIS, GIVING DUE WEIGHT TO ANY FACTORS
WHICH WOULD POINT TO AN UNFAIR OR ANOMALOUS RESULT FROM THEIR
ALLOWANCE."  BRIEF FOR THE UNITED STATES 7.  THE GOVERNMENT'S POSITION
WAS SPELLED OUT IN A BRIEF FILED MORE THAN A MONTH AFTER PETITIONER B-T
FILED ITS BRIEF. 

AT ORAL ARGUMENT THE FOLLOWING COLLOQUY OCCURRED BETWEEN THE COURT
AND COUNSEL FOR B-T: 

     "Q.  YOU'RE NOT ASKING FOR TRIPLETT TO BE OVERRULED? 

     "A.  NO, I'M NOT.  I MAINTAIN THAT BY BROTHER HERE DID HAVE A

  RIGHT IF THERE WAS A GENUINE NEW ISSUE OR SOME OTHER

  INTERPRETATION OF THE (PATENT) CLAIM OR SOME INTERPRETATION OF

  LAW IN ANOTHER CIRCUIT THAT'S DIFFERENT THAN THIS CIRCUIT, HE HAD

A RIGHT TO TRY, UNDER TRIPLETT BELOW, IN ANOTHER CIRCUIT. 

    "IN THIS PARTICULAR CASE, WHERE WE'RE STUCK WITH SUBSTANTIALLY

  THE SAME DOCUMENTARY EVIDENCE, WHERE WE WERE NOT ABLE TO PRODUCE

  (IN THE SEVENTH CIRCUIT) EVEN THAT MODICUM OF EXPERT TESTIMONY

  THAT EXISTED IN THE EIGHTH CIRCUIT, WE THINK THERE MAY BE AS

  SUGGESTED BY THE SOLICITOR GENERAL, SOME REASON FOR MODICATION OF

  THAT DOCUMENT (SIC) IN A CASE SUCH AS THIS."  TR. OF ORAL ARG.

  7-8. 

IN LIGHT OF THIS CHANGE OF ATTITUDE FROM THE TIME PETITIONER'S BRIEF
WAS FILED, WE CONSIDER THAT THE QUESTION OF MODIFYING TRIPLETT IS
PROPERLY BEFORE US.  /6/

        II 

TRIPLETT V. LOWELL EXEMPLIFIED THE JUDGE-MADE DOCTRINE OF MUTUALITY
OF ESTOPPEL, ORDAINING THAT UNLESS BOTH PARTIES (OR THEIR PRIVIES) IN A
SECOND ACTION ARE BOUND BY A JUDGMENT IN A PREVIOUS CASE, NEITHER PARTY
(NOR HIS PRIVY) IN THE SECOND ACTION MAY USE THE PRIOR JUDGMENT AS
DETERMINATIVE OF AN ISSUE IN THE SECOND ACTION.  TRIPLETT WAS DECIDED
IN 1936.  THE OPINION STATED THAT "THE RULES OF THE COMMON LAW
APPLICABLE TO SUCCESSIVE LITIGATIONS CONCERNING THE SAME SUBJECT
MATTER" DID NOT PRECLUDE "RELITIGATION OF THE VALIDITY OF A PATENT
CLAIM PREVIOUSLY HELD INVALID IN A SUIT AGAINST A DIFFERENT
DEFENDANT."  297 U.S.,AT 644.  IN BIGELOW V. OLD DOMINION COPPER CO.,
225 U.S. 111, 127 (1912), THE COURT HAD STATED THAT IT WAS "A PRINCIPLE
OF GENERAL ELEMENTARY LAW THAT THE ESTOPPEL OF A JUDGMENT MUST BE
MUTUAL."  /7/  THE SAME RULE WAS REFLECTED IN THE RESTATMENT OF
JUDGMENTS.  RESTATEMENT OF JUDGMENTS SEC. 93 (1942).  /8/ 

BUT EVEN AT THE TIME TRIPLETT WAS DECIDED, AND CERTAINLY BY THE TIME
THE RESTATEMENT WAS PUBLISHED, THE MUTUALITY RULE HAD BEEN UNDER FIRE. 
COURTS HAD DISCARDED THE REQUIREMENT OF MUTUALITY AND HELD THAT ONLY
THE PARTY AGAINST WHOM THE PLEA OF ESTOPPEL WAS ASSERTED HAD TO HAVE
BEEN IN PRIVITY WITH A PARTY IN THE PRIOR ACTION.  /9/  AS JUDGE
FRIENDLY HAS NOTED, BENTHAM HAD ATTACKED THE DOCTRINE "AS DESTITUTE OF
ANY SEMBLANCE OF REASON, AND AS 'A MAXIM WHICH ONE WOULD SUPPOSE TO
HAVE FOUND ITS WAY FROM THE GAMING-TABLE OF THE BENCH' . . . ."  ZDANOK
V. GLIDDEN CO., 327 F.2D 944, 954 (CA2 1964), CERT. DENIED, 377 U.S.
934 (1964) (QUOTING 3 J. BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 579
(1827), REPRINTED IN 7 WORKS OF JEREMY BENTHAN 171 (J. BOWRING ED.
1843).  THERE WAS ALSO FERMENT IN SCHOLARLY QUARTERS.  /10/ 

BUILDING UPON THE AUTHORITY CITED ABOVE, THE CALIFORNIA SUPREME
COURT, IN BERNHARD V. BANK OF AMERICA NAT. TRUST & SAVINGS ASSN., 19
CAL.2D 807, 122 P.2D 892 (1942), UNANIMOUSLY REJECTED THE DOCTRINE OF
MUTUALITY, STATING THAT THERE WAS "NO COMPELLING REASON . . . FOR
REQUIRING THAT THE PARTY ASSERTING THE PLEA OF RES JUDICATA MUST HAVE
BEEN A PARTY, OR IN PRIVITY WITH A PARTY, TO THE EARLIER LITIGATION." 
ID., AT 812, 122 P.2D, AT 894.  JUSTICE TRAYNOR'S OPINION, HANDED DOWN
THE SAME YEAR THE RESTATMENT WAS PUBLISHED, LISTED CRITERIA SINCE
EMPLOYED BY MANY COURTS IN MANY CONTEXTS: 

     "IN DETERMINING THE VALIDITY OF A PLEA OF RES JUDICATA THREE

  QUESTIONS ARE PERTINENT:  WAS THE ISSUE DECIDED IN THE PRIOR

  ADJUDICATION IDENTICAL WITH THE ONE PRESENTED IN THE ACTION IN

  QUESTION?  WAS THERE A FINAL JUDGMENT ON THE MERITS?  WAS THE

  PARTY AGAINST WHOM THE PLEA IS ASSERTED A PARTY OR IN PRIVITY

  WITH A PARTY TO THE PRIOR ADJUDICATION?"  19 CAL.2D, AT 813, 122

  P.2D, AT 895. 

ALTHOUGH THE FORCE OF THE MUTUALITY RULE HAD BEEN DIMINISHED BY
EXCEPTIONS AND BERNHARD ITSELF MIGHT EASILY HAVE BEEN BROUGHT WITHIN
ONE OF THE ESTABLISHED EXCEPTIONS, "JUSTICE TRAYNOR CHOSE INSTEAD TO
EXTIRPATE THE MUTUALITY REQUIREMENT AND PUT IT TO THE TORCH."  CURRIE
CIVIL PROCEDURE:  THE TEMPEST BREWS, 53 CALF.L.REV.  25, 26 (1965). 

BERNHARD HAD SIGNIFICANT IMPACT.  MANY STATE AND FEDERAL COURTS
REJECTED THE MUTUALITY REQUIREMENT, ESPECIALLY WHERE THE PRIOR JUDGMENT
WAS INVOKED DEFENSIVELY IN A SECOND ACTION AGAINST A PLAINTIFF IN A
PRIOR ACTION.  /11/  THE TREND HAS BEEN APPARENT IN FEDERAL-QUESTION
CASES.  /12/  THE FEDERAL COURTS FOUND BERNHARD PERSUASIVE.  AS JUDGE
HASTIE STATED MORE THAN 20 YEARS AGO: 

     "THIS SECOND EFFORT TO PROVE NEGLIGENCE IS COMPREHENDED BY THE

GENERALLY ACCEPTED PRECEPT THAT A PARTY WHO HAS HAD ONE FAIR AND

  FULL OPPORTUNITY TO PROVE A CLAIM AND HAS FAILED IN THAT EFFORT,

  SHOULD NOT BE PERMITTED TO GO TO TRIAL ON THE MERITS OF THAT

  CLAIM A SECOND TIME.  BOTH ORDERLINESS AND REASONABLE TIME SAVING

  IN JUDICIAL ADMINISTRATION REQUIRE THAT THIS BE SO UNLESS SOME

  OVERRIDING CONSIDERATION OF FAIRNESS TO A LITIGANT DICTATES A

  DIFFERENT RESULT IN THE CIRCUMSTANCES OF A PARTICULAR CASE. 

      "THE COUNTERVAILING CONSIDERATION URGED HERE IS LACK OF

  MUTUALITY OF ESTOPPEL.  IN THE PRESENT SUIT (THE PLAINTIFF) WOULD

  NOT HAVE BEEN PERMITTED TO TAKE ADVANTAGE OF AN EARLIER

  AFFIRMATIVE FINDING OF NEGLIGENCE, HAD SUCH FINDING BEEN MADE IN

  (HIS FIRST SUIT AGAINST A DIFFERENT DEFENDANT).  FOR THAT REASON

  HE ARGUES THAT HE SHOULD NOT BE BOUND BY A CONTRARY FINDING IN

  THAT CASE.  BUT A FINDING OF NEGLIGENCE IN THE (PLAINTIFF'S FIRST

  SUIT) WOULD NOT HAVE BEEN BINDING AGAINST THE (DEFENDANT IN A

  SECOND SUIT) BECAUSE (THAT DEFENDANT) HAD NO OPPORTUNITY TO

CONTEST THE ISSUE THERE.  THE FINDING OF NO NEGLIGENCE ON THE

  OTHER HAND WAS MADE AFTER FULL OPPORTUNITY TO (PLAINTIFF) ON HIS

  OWN ELECTION TO PROVE THE VERY MATTER WHICH HE NOW URGES A SECOND

  TIME.  THUS, NO UNFAIRNESS RESULTS HERE FROM ESTOPPEL WHICH IS

  NOT MUTUAL.  IN REALITY THE ARGUMENT OF (PLAINTIFF) IS MERELY

  THAT THE APPLICATION OF RES JUDICATA IN THIS CASE MAKES THE LAW

  ASYMMETRICAL.  BUT THE ACHIEVEMENT OF SUBSTANTIAL JUSTICE RATHER

  THAN SYMMETRY IS THE MEASURE OF THE FAIRNESS OF THE RULES OF RES

JUDICATA."  BRUSZEWSKI V. UNITED STATES, 181 F.2D 419, 421 (CA3

  1950), CERT. DENIED, 340 U.S. 865 (1950). 

MANY FEDERAL COURTS, EXERCISING BOTH FEDERAL QUESTION AND DIVERSITY
JURISDICTION, ARE IN ACCORD UNLESS IN A DIVERSITY CASE BOUND TO APPLY A
CONFLICTING STATE RULE REQUIRING MUTUALITY.  /13/ 

OF COURSE, TRANSFORMATION OF ESTOPPEL LAW WAS NEITHER INSTANTANEOUS
NOR UNIVERSAL.  AS LATE AS 1961, EMINENT AUTHORITY STATED THAT "(MOST
STATE COURTS RECOGNIZE AND APPLY THE DOCTRINE OF MUTUALITY, SUBJECT TO
CERTAIN EXCEPTIONS.  . . . AND THE SAME IS TRUE OF FEDERAL COURTS, WHEN
FREE TO APPLY THEIR OWN DOCTRINE."  MOORE & CURRIER, MUTUALITY AND
CONCLUSIVENESS OF JUDGMENTS, 35 TUL.L.REV.  301, 304 (1961) (FOOTNOTES
OMITTED); SEE ALSO, 1B J.MOORE, FEDERAL PRACTICE PARA. 0.412(1), PP.
1803-1804 (1965).  HOWEVER, IN 1970 PROFESSOR MOORE NOTED THAT "THE
TREND IN THE FEDERAL COURTS IS AWAY FROM THE RIGID REQUIREMENTS OF
MUTUALITY ADVOCATED HEREIN."  ID., SUPP. 1970, AT 53.  THE SAME TREND
IS EVIDENT IN THE STATE COURTS.  /14/ 

UNDENIABLY, THE COURT-PRODUCED DOCTRINE OF MUTUALITY OF ESTOPPEL IS
UNDERGOING FUNDAMENTAL CHANGE IN THE COMMON-LAW TRADITION.  IN ITS
PRISTINE FORMULATION, AN INCREASING NUMBER OF COURTS HAVE REJECTED THE
PRINCIPLE AS UNSOUND.  NOR IS IT IRRELEVANT THAT THE ABROGATION OF
MUTUALITY HAS BEEN ACCOMPANIED BY OTHER DEVELOPMENTS-- SUCH AS
EXPANSION OF THE DEFINITION OF "CLAIM" IN BAR AND MERGER CONTEXTS /15/
AND EXPANSION OF THE PRECLUSIVE EFFECTS AFFORDED CRIMINAL JUDGMENTS IN
CIVIL LITIGATION /16/  -- WHICH ENHANCE THE CAPABILITIES OF THE COURTS
TO DEAL WITH SOME ISSUES SWIFTLY BUT FAIRLY. 

OBVIOUSLY, THESE MUTATIONS IN ESTOPPEL DOCTRINE ARE NOT BEFORE US
FOR WHOLESALE APPROVAL OR REJECTION.  BUT AT THE VERY LEAST THEY
COUNSEL US TO RE-EXAMINE WHETHER MUTUALITY OF ESTOPPEL IS A VIABLE RULE
WHERE A PATENTEE SEEKS TO RELITIGATE THE VALIDITY OF A PATENT ONCE A
FEDERAL COURT HAS DECLARED IT TO BE INVALID.  /17/

        III 

THE CASES AND AUTHORITIES DISCUSSED ABOVE CONNECT EROSION OF THE
MUTUALITY REQUIREMENT TO THE GOAL OF LIMITING RELITIGATION OF ISSUES
WHERE THAT CAN BE ACHIEVED WITHOUT COMPROMISING FAIRNESS IN PARTICULAR
CASES.  THE COURTS HAVE OFTEN DISCARDED THE RULE WHILE COMMENTING ON
CROWDED DOCKETS AND LONG DELAYS PROCEDING TRIAL.  AUTHORITIES DIFFER ON
WHETHER THE PUBLIC INTEREST IN EFFICIENT JUDICIAL ADMINISTRATION IS A
SUFFICIENT GROUND IN AND OF ITSELF FOR ABANDONING MUTUALITY, /18/  BUT
IT IS CLEAR THAT MORE THAN CROWDED DOCKETS IS INVOLVED.  THE BROADER
QUESTION IS WHETHER IT IS ANY LONGER TENABLE TO AFFORD A LITIGANT MORE
THAN ONE FULL AND FAIR OPPORTUNITY FOR JUDICIAL RESOLUTION OF THE SAME
ISSUE.  THE QUESTION IN THESE TERMS INCLUDES AS PART OF THE CALCULUS
THE EFFECT ON JUDICIAL ADMINISTRATION, BUT IT ALSO ENCOMPASSES THE
CONCERN EXEMPLIFIED BY BENTHAM'S REFERENCE TO THE GAMING TABLE IN HIS
ATTACK ON THE PRINCIPLE OF MUTUALITY OF ESTOPPEL.  IN ANY LAWSUIT WHERE
A DEFENDANT, BECAUSE OF THE MUTUALITY PRINCIPLE, IS FORCED TO PRESENT A
COMPLETE DEFENSE ON THE MERITS OF A CLAIM WHICH THE PLAINTIFF HAS FULLY
LITIGATED AND LOST IN A PRIOR ACTION, THERE IS AN ARGUABLE
MISALLOCATION OF RESOURCES.  TO THE EXTENT THE DEFENDANT IN THE SECOND
SUIT MAY NOT WIN BY ASSERTING, WITHOUT CONTRADICTION, THAT THE
PLAINTIFF HAD FULLY AND FAIRLY, BUT UNSUCCESSFULLY, LITIGATED THE SAME
CLAIM IN THE PRIOR SUIT, THE DEFENDANT'S TIME AND MONEY ARE DIVERTED
FROM ALTERNATIVE USES-- PRODUCTIVE OR OTHERWISE-- TO RELITIGATION OF A
DECIDED ISSUE.  AND, STILL ASSUMING THAT THE ISSUE WAS RESOLVED
CORRECTLY IN THE FIRST SUIT, THERE IS REASON TO BE CONCERNED ABOUT THE
PLAINTIFF'S ALLOCATION OF RESOURCES.  PERMITTING REPEATED LITIGATION OF
THE SAME ISSUE AS LONG AS THE SUPPLY OF UNRELATED DEFENDANTS HOLDS OUT
REFLECTS EITHER THE AURA OF THE GAMING TABLE OR "A LACK OF DISCIPLINE
AND OF DISINTERESTEDNESS ON THE PART OF THE LOWER COURTS, HARDLY A
WORTHY OR WISE BASIS FOR FASHIONING RULES OR PROCEDURE."  KEROTEST MFG.
CO. V. C-O-TWO CO., 342 U.S. 180, 185 (1952).  ALTHOUGH NEITHER JUDGES,
THE PARTIES, NOR THE ADVERSARY SYSTEM PERFORMS PERFECTLY IN ALL CASES,
THE REQUIREMENT OF DETERMINING WHETHER THE PARTY AGAINST WHOM AN
ESTOPPEL IS ASSERTED HAD A FULL AND FAIR OPPORTUNITY TO LITIGATE IS A
MOST SIGNIFICANT SAFEGUARD. 

SOME LITIGANTS-- THOSE WHO NEVER APPEARED IN A PRIOR ACTION-- MAY
NOT BE COLLATERALLY ESTOPPED WITHOUT LITIGATING THE ISSUE.  THEY HAVE
NEVER HAD A CHANCE TO PRESENT THEIR EVIDENCE AND ARGUMENTS ON THE
CLAIM.  DUE PROCESS PROHIBITS ESTOPPING THEM DESPITE ONE OR MORE
EXISTING ADJUDICATIONS OF THE IDENTICAL ISSUE WHICH STAND SQUARELY
AGAINST THEIR POSITION.  SEE HANSBERRY V. LEE, 311 U.S. 32, 40 (1940);
BERNHARD, 19 CAL.2D, AT 811, 122 P.2D, AT 894.  ALSO, THE AUTHORITIES
HAVE BEEN MORE WILLING TO PERMIT A DEFENDANT IN A SECOND SUIT TO INVOKE
AN ESTOPPEL AGAINST A PLAINTIFF WHO LOST ON THE SAME CLAIM IN AN
EARLIER SUIT THAN THEY HAVE BEEN TO ALLOW A PLAINTIFF IN THE SECOND
SUIT TO USE OFFENSIVELY A JUDGMENT OBTAINED BY A DIFFERENT PLAINTIFF IN
A PRIOR SUIT AGAINST THE SAME DEFENDANT.  /19/  BUT THE CASE BEFORE US
INVOLVES NEITHER DUE PROCESS NOR "OFFENSIVE USE"  QUESTIONS.  RATHER,
IT DEPENDS ON THE CONSIDERATIONS WEIGHING FOR AND AGAINST; PERMITTING A
PATENT HOLDER TO SUE ON HIS PATENT AFTER IT HAS ONCE BEEN HELD INVALID
FOLLOWING OPPORTUNITY FOR FULL AND FAIR TRIAL. 

THERE ARE SEVERAL COMPONENTS OF THE PROBLEM.  FIRST, WE ANALYZE THE
PROPOSED ABROGATION OR MODIFICATION OF THE TRIPLETT RULE IN TERMS OF
THOSE CONSIDERATIONS RELEVANT TO THE PATENT SYSTEM.  SECOND, WE DEAL
BROADLY WITH THE ECONOMIC COSTS OF CONTINUED ADHERENCE TO TRIPLETT. 
FINALLY, WE EXPLORE THE NATURE OF THE BURDEN, IF ANY, THAT PERMITTING
PATENTEES TO RELITIGATE PATENTS ONCE HELD INVALID IMPOSES ON THE
FEDERAL COURTS. 

        A 

STARTING WITH THE PREMISE THAT THE STATUTES CREATING THE PATENT
SYSTEM, EXPRESSLY SANCTIONED BY THE CONSTITUTION, /20/  REPRESENT AN
AFFIRMATIVE POLICY CHOICE BY CONGRESS TO REWARD INVENTORS, RESPONDENTS
EXTRAPOLATE A SPECIAL PUBLIC INTEREST IN SUSTAINING "GOOD" PATENTS AND
CHARACTERIZE PATENT LITIGATION AS SO TECHNICAL AND DIFFICULT AS TO
PRESENT UNUSUAL POTENTIAL FOR UNSOUND ADJUDICATIONS.  ALTHOUGH TRIPLETT
MADE NO SUCH ARGUMENT IN SUPPORT OF ITS HOLDING, THAT RULE, OFFERING
THE UNRESTRICTED RIGHT TO RELITIGATE PATENT VALIDITY, IS THUS DEEMED AN
ESSENTIAL SAFEGUARD AGAINST IMPROVIDENT JUDGMENTS OF INVALIDITY.  /21/ 

WE FULLY ACCEPT CONGRESSIONAL JUDGMENT TO REWARD INVENTORS THROUGH
THE PATENT SYSTEM.  WE ARE ALSO AWARE THAT SOME COURTS HAVE FRANKLY
STATED THAT PATENT LITIGATION CAN PRESENT ISSUES SO COMPLEX THAT LEGAL
MINDS, WITHOUT APPROPRIATE GROUNDING IN SCIENCE AND TECHNOLOGY, MAY
HAVE DIFFICULTY IN REACHING DECISION.  /22/  ON THE OTHER HAND, THIS
COURT HAS OBSERVED THAT ISSUES OF NONOBVIOUSNESS UNDER 35 U.S.C. 103
PRESENT DIFFICULTIES "COMPARABLE TO THOSE ENCOUNTERED DAILY BY THE
COURTS IN SUCH FRAMES OF REFERENCE AS NEGLIGENCE AND SCIENTER, AND
SHOULD BE AMENDABLE TO A CASE-BY-CASE DEVELOPMENT."  GRAHAM V. JOHN
DEERE CO., 383 U.S.,AT 18.  BUT ASSUMING A PATENT CASE SO DIFFICULT AS
TO PROVOKE A FRANK ADMISSION OF JUDICIAL UNCERTAINTY, ONE MIGHT ASK
WHAT REASON THERE IS TO EXPECT THAT A SECOND DISTRICT JUDGE OR COURT OF
APPEALS WOULD BE ABLE TO DECIDE THE ISSUE MORE ACCURATELY.  MOREOVER,
AS GRAHAM ALSO INDICATES, CONGRESS HAS FROM THE OUTSET CHOSEN TO IMPOSE
BROAD CRITERIA OF PATENTABILITY WHILE LODGING IN THE FEDERAL COURTS
FINAL AUTHORITY TO DECIDE THAT QUESTION.  383 U.S.,AT 10.  IN ANY EVENT
IT CANNOT BE SENSIBLY CONTENDED THAT ALL ISSUES CONCERNING PATENT
VALIDITY ARE SO COMPLEX AND UNYIELDING.  NONOBVIOUSNESS ITSELF IS NOT
ALWAYS DIFFICULT TO PERCEIVE AND DECIDE AND OTHER QUESTIONS ON WHICH
PATENTABILITY DEPENDS ARE MORE OFTEN THAN NOT NO MORE DIFFICULT THAN
THOSE ENCOUNTERED IN THE USUAL NONPATENT CASE.  /23/ 

EVEN CONCEDING THE EXTREME INTRICACY OF SOME PATENT CASES, WE SHOULD
KEEP FIRMLY IN MIND THAT WE ARE CONSIDERING THE SITUATION WHERE THE
PATENTEE WAS PLAINTIFF IN THE PRIOR SUIT AND CHOSE TO LITIGATE AT THAT
TIME AND PLACE.  PRESUMABLY HE WAS PREPARED TO LITIGATE AND TO LITIGATE
TO THE FINISH AGAINST THE DEFENDANT THERE INVOLVED.  PATENT LITIGATION
CHARACTERISTICALLY PROCEEDS WITH SOME DELIBERATION AND, WITH THE
AVENUES FOR DISCOVERY AVAILABLE UNDER THE PRESENT RULES OF PROCEDURE,
THERE IS NO REASON TO SUPPOSE THAT PLAINTIFF PATENTEES WOULD FACE
EITHER SURPRISE OR UNUSUAL DIFFICULTIES IN GETTING ALL RELEVANT AND
PROBATIVE EVIDENCE BEFORE THE COURT IN THE FIRST LITIGATION. 

MOREOVER, WE DO NOT SUTGEST, WITHOUT LEGISLATIVE GUIDANCE, THAT A
PLEA OF ESTOPPEL BY AN INFRINGEMENT OR ROYALTY SUIT DEFENDANT MUST
AUTOMATICALLY BE ACCEPTED ONCE THE DEFENDANT IN SUPPORT OF HIS PLEA
IDENTIFIES THE ISSUE IN SUIT AS THE IDENTICAL QUESTION FINALLY DECIDED
AGAINST THE PATENTEE OR ONE OF HIS PRIVIES IN PREVIOUS LITIGATION. 
/24/  RATHER, THE PATENTEE-PLAINTIFF MUST BE PERMITTED TO DEMONSTRATE,
IF HE CAN, THAT HE DID NOT HAVE "A FAIR OPPORTUNITY PROCEDURALLY,
SUBSTANTIVELY AND EVIDENTIALLY TO PURSUE HIS CLAIM THE FIRST TIME." 
EISEL V. COLUMBIA PACKING CO., 181 F.SUPP.  298, 301 (MASS. 1960). 
THIS ELEMENT IN THE ESTOPPEL DECISION WILL COMPREHEND, WE BELIEVE, THE
IMPORTANT CONCERNS ABOUT THE COMPLEXITY OF PATENT LITIGATION AND THE
POSITED HAZARD THAT THE PRIOR PROCEEDINGS WERE SERIOUSLY DEFECTIVE. 

DETERMINING WHETHER A PATENTEE HAS HAD A FULL AND FAIR CHANCE TO
LITIGATE THE VALIDITY OF HIS PATENT IN AN EARLIER CASE IS OF NECESSITY
NOT A SIMPLE MATTER.  IN ADDITION TO THE CONSIDERATIONS OF CHOICE OF
FORUM AND INCENTIVE TO LITIGATE MENTIONED ABOVE, /25/  CERTAIN OTHER
FACTORS IMMEDIATELY EMERGE.  FOR EXAMPLE, IF THE ISSUE IS
NONOBVIOUSNESS, APPROPRIATE INQUIRIES WOULD BE WHETHER THE FIRST
VALIDITY DETERMINATION PURPORTED TO EMPLOY THE STANDARDS ANNOUNCED IN
GRAHAM V. JOHN DEERE CO., SUPRA; WHETHER THE OPINIONS FILED BY THE
DISTRICT COURT AND THE REVIEWING COURT, IF ANY, INDICATE THAT THE PRIOR
CASE WAS ONE OF THOSE RELATIVELY RARE INSTANCES WHERE THE COURTS WHOLLY
FAILED TO GRASP THE TECHNICAL SUBJECT MATTER AND ISSUES IN SUIT; AND
WHETHER WITHOUT FAULT OF HIS OWN THE PATENTEE WAS DEPRIVED OF CRUCIAL
EVIDENCE OR WITNESSES IN THE FIRST LITIGATION.  /26/  BUT AS SO OFTEN
IS THE CASE, NO ONE SET OF FACTS, NO ONE COLLECTION OF WORDS OR
PHRASES, WILL PROVIDE AN AUTOMATIC FORMULA FOR PROPER RULINGS ON
ESTOPPEL PLEAS.  IN THE END, DECISION WILL NECESSARILY REST ON THE
TRIAL COURTS' SENSE OF JUSTICE AND EQUITY. 

WE ARE NOT PERSUADED, THEREFORE, THAT THE TRIPLETT RULE, AS IT WAS
FORMULATED, IS ESSENTIAL TO EFFECTUATE THE PURPOSES OF THE PATENT
SYSTEM OR IS AN INDISPENSABLE OR EVEN AN EFFECTIVE SAFEGUARD AGAINST
FAULTY TRIALS AND JUDGMENTS.  WHATEVER LEGITIMATE CONCERN THERE MAY BE
ABOUT THE INTRICACIES OF SOME PATENT SUITS, IT IS INSUFFICIENT IN AND
OF ITSELF TO JUSTIFY PATENTEES RELITIGATING VALIDITY ISSUES AS LONG AS
NEW DEFENDANTS ARE AVAILABLE.  THIS IS ESPECIALLY TRUE IF THE COURT IN
THE SECOND LITIGATION MUST DECIDE IN A PRINCIPLED WAY WHETHER OR NOT IT
IS JUST AND EQUITABLE TO ALLOW THE PLEA OF ESTOPPEL IN THE CASE BEFORE
IT.

        B 

AN EXAMINATION OF THE ECONOMIC CONSEQUENCES OF CONTINUED ADHERENCE
TO TRIPLETT HAS TWO BRANCES.  BOTH, HOWEVER, BEGIN WITH THE
ACKNOWLEDGED FACT THAT PATENT LITIGATION IS A VERY COSTLY PROCESS. 
JUDGE FRANK OBSERVED IN 1942 THAT "THE EXPENSE OF DEFENDING A PATENT
SUIT IS OFTEN STAGGERING TO THE SMALL BUSINESSMAN."  PICARD V. UNITED
AIRCRAFT CORP., 128 F.2D 632, 641 (CA2 1942) (CONCURRING OPINION).  IN
LEAR, INC. V. ADKINS, 395 U.S. 653, 669 (1969), WE NOTED THAT ONE OF
THE BENEFITS ACCRUING TO A BUSINESSMAN ACCEPTING A LICENSE FROM A
PATENTEE WHO WAS THREATENING HIM WITH A SUIT WAS AVOIDING "THE
NECESSITY OF DEFENDING AN EXPENSIVE INFRINGEMENT ACTION DURING THE
PERIOD WHEN HE MAY BE LEAST ABLE TO AFFORD ONE."  SIMILARLY, IN
REPLYING TO CLAIMS BY ALLEGED INFRINGERS THAT THEY HAVE BEEN GUILTY OF
LACHES IN SUING ON THEIR PATENTS, PATENTEES HAVE CLAIMED THAT THE
EXPENSE OF LITIGATING FORCED THEM TO POSTPONE BRINGING LEGAL ACTION. 
SEE, E.G., BAKER MFG. CO. V. WHITEWATER MFG. CO., 430 F.2D 1008, 1014
1015 (CA7 1970).  IN RECENT CONGRESSIONAL HEARINGS ON REVISION OF THE
PATENT LAWS, A LAWYER-BUSINESSMAN DISCUSSING A PROPOSAL OF THE AMERICAN
SOCIETY OF INVENTORS FOR GOVERNMENT-SPONSORED INSURANCE TO PROVIDE
FUNDS FOR LITIGATION TO INDIVIDUAL INVENTORS HOLDING NONASSIGNED
PATENTS STATED:  "WE ARE ADVISED THAT THE AVERAGE COST FOR LITIGATING A
PATENT IS ABOUT $50,000."  /27/     THIS STATEMENT, AND ARGUMENTS SUCH
AS THE ONE MADE IN BAKER MFG., SUPRA, MUST BE ASSESSED IN LIGHT OF THE
FACT THAT THEY ARE ADVANCED BY PATENTEES CONTEMPLATING ACTION AS
PLAINTIFFS, AND PATENTEES ARE HEAVILY FAVORED AS A CLASS OF LITIGANTS
BY THE PATENT STATUTE.  SECTION 181 OF THE PATENT CODE PROVIDES, IN
PERTINENT PART: 

     "A PATENT SHALL BE PRESUMED VALID.  THE BURDEN OF ESTABLISHING

  INVALIDITY OF A PATENT SHALL REST ON A PARTY ASSERTING IT." 

IF A PATENTEE'S EXPENSE IS HIGH THOUGH HE ENJOYS THE BENEFITS OF THE
PRESUMPTION OF VALIDITY, THE DEFENDANT IN AN INFRINGEMENT SUIT WILL
HAVE EVEN HIGHER COSTS AS HE BOTH INTRODUCES PROOF TO OVERCOME THE
PRESUMPTION AND ATTEMPTS TO REBUT WHATEVER PROOF THE PATENTEE OFFERS TO
BOLSTER THE CLAIMS.  IN TESTIMONY BEFORE THE SENATE SUBCOMMITTEE
CONSIDERING PATENT LAW REVISION IN 1967, A MEMBER OF THE PRESIDENT'S
COMMISSION ON THE PATENT SYSTEM DISCUSSED THE FINANCIAL BURDEN LOOMING
BEFORE ONE CHARGED AS A DEFENDANT IN A COMPLEX INFRINGEMENT ACTION IN
TERMS OF AMOUNTS THAT SOMETIMES RUN TO "HUNDREDS OF THOUSANDS OF
DOLLARS."  /28/ 

STATISTICS TEND TO BEAR THIS OUT.  PATENT SUITS CONSTITUTE BETWEEN
1% AND 2% OF THE TOTAL NUMBER OF CIVIL CASES FILED EACH YEAR IN THE
DISTRICT COURTS.  /29/  DESPITE THIS RELATIVELY SMALL FIGURE, AND
NOTWITHSTANDING THE OVERWHELMING TENDENCY TO TRY THESE SUITS WITHOUT
JURIES, /30/  PATENT CASES THAT GO TO TRIAL SEEM TO TAKE AN INORDINATE
AMOUNT OF TRIAL TIME.  /31/  WHILE IN 1961 A SENATE STAFF REPORT STATED
THAT THE "TYPICAL PATENT TRIAL, WITHOUT A JURY, WAS COMPLETED IN 3 DAYS
OR LESS,"  /32/  RECENT FIGURES INDICATE THAT THIS DESCRIPTION OF THE
TIME REQUIRED IS TODAY INACCURATE.  /33/  AND TIME-- PARTICULARLY TRIAL
TIME-- IS UNQUESTIONABLY EXPENSIVE. 

AS STATED AT THE OUTSET OF THIS SECTION, THE EXPENSE OF PATENT
LITIGATION HAS TWO PRINCIPAL CONSEQUENCES IF THE TRIPLETT RULE IS
MAINTAINED.  FIRST, ASSUMING THAT A PERFECTLY SOUND JUDGMENT OF
INVALIDITY HAS BEEN RENDERED IN AN EARLIER SUIT INVOLVING THE PATENTEE,
A SECOND INFRINGEMENT ACTION RAISING THE SAME ISSUE AND INVOLVING MUCH
OF THE SAME PROOF HAS A HIGH COST TO THE INDIVIDUAL PARTIES.  THE
PATENTEE IS EXPENDING FUNDS ON LITIGATION TO PROTECT A PATENT WHICH IS
BY HYPOTHESIS INVALID.  THESE MONEYS COULD BE PUT TO BETTER USE, SUCH
AS FURTHER RESEARCH AND DEVELOPMENT.  THE ALLEGED INFRINGER-- OPERATING
AS HE MUST AGAINST THE PRESUMPTION OF VALIDITY-- IS FORCED TO DIVERT
SUBSTANTIAL FUNDS TO LITIGATION THAT IS WASTEFUL. 

THE SECOND MAJOR ECONOMIC CONSIDERATION IS FAR MORE SIGNIFICANT. 
UNDER TRIPLETT, ONLY THE COMITY RESTRAINTS FLOWING FROM AN ADVERSE
PRIOR JUDGMENT OPERATE TO LIMIT THE PATENTEE'S RIGHT TO SUE DIFFERENT
DEFENDANTS ON THE SAME PATENT.  IN EACH SUCCESSIVE SUIT THE PATENTEE
ENJOYS THE STATUTORY PRESUMPTION OF VALIDITY, AND SO MAY EASILY PUT THE
ALLEGED INFRINGER TO HIS EXPENSIVE PROOF.  AS A CONSEQUENCE,
PROSPECTIVE DEFENDANTS WILL OFTEN DECIDE THAT PAYING ROYALTIES UNDER A
LICENSE OR OTHER SETTLEMENT IS PREFERABLE TO THE COSTLY BURDEN OF
CHALLENGING THE PATENT. 

THE PROBLEM HAS SURFACED AND DRAWN COMMENT BEFORE.  SEE, E.G.,
NICKERSON V. KUTSCHERA, 419 F.2D 983, 988 N. 4 (CA3 1969) (DISSENTING
OPINION); PICARD V. UNITED AIRCRAFT CORP., 128 F.2D, AT 641-642
(CONCURRING OPINION).  IN 1961, THE SENATE JUDICIARY SUBCOMMITTEE ON
PATENTS, TRADEMARKS, AND COPYRIGHTS PUBLISHED A STAFF STUDY OF
INFRINGEMENT AND DECLARATORY JUDGEMENT ACTIONS TERMINATED IN THE
DISTRICT COURTS AND COURTS OF APPEALS DURING 1949-1958; THE REPORT
SHOWED 62 ACTIONS COMMENCED AFTER AN EARLIER DETERMINATION THAT THE
PATENT IN SUIT WAS NOT VALID.  IT ALSO NOTED THAT THE "VAST MAJORITY"
OF SUCH SUITS WERE TERMINATED WITHOUT A SECOND ADJUDICATION OF VALIDITY
WAS THE RESULT OF A LICENSING AGREEMENT OR SOME OTHER SETTLEMENT
BETWEEN THE PARTIES TO THE SECOND SUIT.  IT IS ALSO IMPORTANT TO
RECOGNIZE THAT THIS STUDY COVERED ONLY CASES FILED AND TERMINATED;
THERE WERE UNDOUBTEDLY MORE SUITS THAT WERE THREATENED BUT NOT FILED,
BECAUSE THE THREAT ALONE WAS SUFFICIENT TO FORESTALL A CHALLENGE TO THE
PATENT. 

THIS IS BORNE OUT BY THE OBSERVATIONS OF THE PRESIDENT'S COMMISSION
ON THE PATENT SYSTEM AND RECENT TESTIMONY ON PROPOSALS FOR CHANGES IN
THE PATENT LAWS.  MOTIVATED BY THE ECONOMIC CONSEQUENCES OF REPETITIOUS
PATENT LITIGATION, THE COMMISSION PROPOSED: 

"A FINAL FEDERAL JUDICIAL DETERMINATION DECLARING A PATENT CLAIM
INVALID SHALL BE IN REM, AND THE CANCELLATION OF SUCH CLAIM SHALL BE
INDICATED ON ALL PATENT COPIES SUBSEQUENTLY DISTRIBUTED BY THE PATENT
OFFICE."  RECOMMENDATION XXIII, COMMISSION REPORT 38.  THE COMMISSION
STRESSED THE COMPETITIVE DISADVANTAGE IMPOSED ON AN ALLEGED INFRINGER
WHO IS UNABLE OR UNWILLING TO DEFEND A SUIT ON THE PATENT, STATING ALSO
THAT A "PATENTEE, HAVING BEEN AFFORDED THE OPPORTUNITY TO EXHAUSE HIS
REMEDY OF APPEAL FROM A HOLDING OF INVALIDITY, HAS HAD HIS 'DAY IN
COURT' AND SHOULD NOT BE ALLOWED TO HARASS OTHERS ON THE BASIS OF AN
INVALID CLAIM.  THERE ARE FEW, IF ANY, LOGICAL GROUNDS FOR PERMITTING
HIM TO CLUTTER CROWDED COURT DOCKETS AND TO SUBJECT OTHERS TO COSTLY
LITIGATION."  ID., AT 39.  THE REPORT PROVOKED THE INTRODUCTION OF
SEVERAL BILLS TO EFFECT BROAD CHANGES IN THE PATENT SYSTEM.  SOME BILLS
CONTAINED PROVISIONS IMPOSING AN INFLEXIBLE RULE OF IN REM INVALIDITY
OPERATING AGAINST A PATENTEE REGARDLESS OF THE CHARACTER OF THE
LITIGATION IN WHICH HIS PATENT WAS FIRST DECLARED INVALID.  SEE S.
1042, 90TH CONG., 1ST SESS. SEC. 294 (1967), AND H.R. 5924, 90TH CONG.,
1ST SESS., SEC. 294 (1967); /34/  CF. S. 3892, 90TH CONG., 2D SESS.,
SEC. 294 (1968).  /35/  HEARINGS WERE HELD IN BOTH HOUSES ON THESE AND
OTHER PATENT REVISION BILLS.  /36/ 

IN THE SENATE HEARINGS, A MEMBER OF THE PRESIDENT'S COMMISSION
REMARKED: 

"THE BUSINESSMAN CAN BE SUBJECTED TO CONSIDERABLE HARASSMENT AS AN
ALLEGED INFRINGER.  EVEN IN CASES WHERE HE FEELS STRONGLY THAT THE
PATENT WOULD ULTIMATELY BE HELD INVALID, WHEN HE CONSIDERS THE HUNDREDS
OF THOUSANDS OF DOLLARS IN COMPLEX CASES THAT COULD BE INVOLVED IN
DEFENDING A SUIT, HE MAY CONCLUDE THAT THE BEST COURSE OF ACTION IS TO
SETTLE FOR LESS TO GET RID OF THE PROBLEM.  THESE NUISANCE SETTLEMENTS,
ALTHOUGH DISTASTEFUL, ARE OFTEN, UNDER THE PRESENT SYSTEM, JUSTIFIED ON
PURE ECONOMICS. 

        .          .          .          . 

"IN MANY INSTANCES THE VERY SURVIVAL OF THE SMALL BUSINESSMAN

  MAY BE AT STAKE.  HIS COST OF FULLY LITIGATING A CLAIM AGAINST

  HIM CAN SERIOUSLY IMPAIR HIS ABILITY TO STAY IN BUSINESS."  1967

  SENATE HEARINGS 103.  /37/ 

THE TENDENCY OF TRIPLETT TO MULTIPLY THE OPPORTUNITIES FOR HOLDERS
OF INVALID PATENTS TO EXACT LICENSING AGREEMENTS OR OTHER SETTLEMENTS
FROM ALLEGED INFRINGERS MUST BE CONSIDERED IN THE CONTEXT OF OTHER
DECISIONS OF THIS COURT.  ALTHOUGH RECOGNIZING THE PATENT SYSTEM'S
DESIRABLE STIMULUS TO INVENTION, WE HAVE ALSO VIEWED THE PATENT AS A
MONOPOLY WHICH, ALTHOUGH SANCTIONED BY LAW, HAS THE ECONOMIC
CONSEQUENCES ATTENDING OTHER MONOPOLIES.  /38/ A PATENT YIELDING
RETURNS FOR A DEVICE THAT FAILS TO MEET THE CONGRESSIONALLY IMPOSED
CRITERIA OF PATENTABILITY IS ANOMALOUS.  /39/  THIS COURT HAS
OBSERVED: 

"A PATENT BY ITS VERY NATURE IS AFFECTED WITH A PUBLIC INTEREST.  .
. . (IT) IS AN EXCEPTION TO THE GENERAL RULE AGAINST MONOPOLIES AND TO
THE RIGHT TO ACCESS TO A FREE AND OPEN MARKET.  THE FAR-REACHING SOCIAL
AND ECONOMIC CONSEQUENCES OF A PATENT, THEREFORE, GIVE THE PUBLIC A
PARAMOUNT INTEREST IN SEEING THAT PATENT MONOPOLIES SPRING FROM
BACKGROUNDS FREE FROM FRAUD OR OTHER INEQUITABLE CONDUCT AND THAT SUCH
MONOPOLIES ARE KEPT WITHIN THEIR LEGITIMATE SCOPE."  PRECISION
INSTRUMENT MFG. CO. V. AUTOMATIVE MAINTENANCE MACHINERY CO., 324 U.S.
806, 816 (1945). 

ONE OBVIOUS MANIFESTATION OF THIS PRINCIPLE HAS BEEN THE SERIES OF
DECISIONS IN WHICH THE COURT HAS CONDEMNED ATTEMPTS TO BROADEN THE
PHYSICAL OR TEMPORAL SCOPE OF THE PATENT MONOPOLY.  AS STANTED IN
MERCOID V. MID-CONTINENT INVESTMENT CO., 320 U.S. 661, 666 (1944): 

"THE NECESSITIES OR CONVENIENCE OF THE PATENTEE DO NOT JUSTIFY ANY
USE OF THE MONOPOLY OF THE PATENT TO CREATE ANOTHER MONOPOLY.  THE FACT
THAT THE PATENTEE HAS THE POWER TO REFUSE A LICENSE DOES NOT ENABLE HIM
TO ENLARGE THE MONOPOLY OF THE PATENT BY THE EXPEDIENT OF ATTACHING
CONDITIONS TO ITS USE.  UNITED STAES V. MASONITE CORP., (316 U.S. 265,)
277 ((1942)).  THE METHOD BY WHICH THE MONOPOLY IS SOUGHT TO BE
EXTENDED IS IMMATERIAL.  UNITED STATES V. UNIVIS LENS CO., (316 U.S.
241,) 251-252 ((1942)).  THE PATENT IS A PRIVILEGE.  BUT IS IS A
PRIVILEGE WHICH IS CONDITIONED BY A PUBLIC PURPOSE.  IT RESULTS FROM
INVENTION AND IS LIMITED TO THE INVENTION WHICH IT DEFINES."  /40/ 

A SECOND GROUP OF AUTHORITIES ENCOURAGE AUTHORITATIVE TESTING OF
PATENT VALIDITY.  IN 1952, THE COURT INDICATED THAT A MANUFACTURER OF A
DEVICE NEED NOT AWAIT THE FILING OF AN INFRINGEMENT ACTION IN ORDER TO
TEST THE VALIDITY OF A COMPETITOR'S PATENT, BUT MAY INSTITUTE HIS OWN
SUIT UNDER THE DECLARATORY JUDGMENT ACT.  KEROTEST MFG. CO. V. C-0-TWO
CO., 342 U.S.,AT 185-186.  /41/  OTHER DECISIONS OF THIS TYPE INVOLVED
REMOVAL OF RESTRICTIONS ON THOSE WHO WOULD CHALLENGE THE VALIDITY OF
PATENTS.  /42/ 

TWO TERMS AGO IN LEAR, INC. V. ADKINS, 395 U.S. 653 (1969), WE
RELIED ON BOTH LINES OF AUTHORITY TO ABROGATE THE DOCTRINE THAT IN A
CONTRACT ACTION FOR UNPAID PATENT ROYALTIES THE LICENSEE OF A PATENT IS
ESTOPPED FROM PROVING "THAT HIS LICENSOR WAS DEMANDING ROYALTIES FOR
THE USE OF AN IDEA WHICH WAS IN REALITY A PART OF THE PUBLIC DOMAIN." 
395 U.S.,AT 656.  THE PRINCIPLE THAT "FEDERAL LAW REQUIRES THAT ALL
IDEAS IN GENERAL CIRCULATION BE DEDICATED TO THE COMMON GOOD UNLESS
THEY ARE PROTECTED BY A VALID PATENT," 395 U.S.,AT 668, FOUND SUPPORT
IN SEARS AND COMPCO AND THE FIRST LINE OF CASES DISCUSSED ABOVE.  /43/
THE HOLDING THAT LICENSEEE ESTOPPEL WAS NOT LONGER TENABLE WAS ROOTED
IN THE SECOND LINE OF CASES ELIMINATING OBSTACLES TO SUIT BY THOSE
DISPOSED TO CHALLENGE THE VALIDITY OF A PATENT.  395 U.S.,AT 663-668. 
MOREOVER, AS INDICATED EARLIER, WE RELIED ON PRACTICAL CONSIDERATIONS
THAT PATENT LICENSEES "MAY OFTEN BE THE ONLY INDIVIDUALS WITH ENOUGH
ECONOMIC INCENTIVE TO CHALLENGE THE PATENTABILITY OF AN INVENTOR'S
DISCOVERY."  395 U.S.,AT 670. 

TO BE SURE, LEAR OBVIATES TO SOME EXTENT THE CONCERN THAT TRIPLETT
PROMPTS ALLEGED INFRINGERS TO PAY ROYALTIES ON PATENTS PREVIOUSLY
DECLARED INVALID RATHER THAN TO ENGAGE IN COSTLY LITIGATION WHEN
INFRINGEMENT SUITS ARE THREATENED.  LEAR PERMITS AN ACCUSED INFRINGER
TO ACCEPT A LICENSE, PAY ROYALTIES FOR A TIME, AND CEASE PAYING WHEN
FINANCIALLY ABLE TO LITIGATE VALIDITY, SECURE IN THE KNOWLEDGE THAT
INVALIDITY MAY BE URGED WHEN THE PATENTEE-LICENSOR SUES FOR UNPAID
ROYALTIES.  NEVERTHELESS, IF THE CLAIMS ARE IN FACT INVALID AND ARE
IDENTICAL TO THOSE INVALIDATED IN A PREVIOUS SUIT AGAINST ANOTHER
PARTY, ANY ROYALTIES ACTUALLY PAID ARE AN UNJUST INCREMENT TO THE
ALLEGED INFRINGER'S COSTS.  THOSE PAYMENTS PUT HIM AT A COMPETITIVE
DISADVANTAGE VIS-A-VIS OTHER ALLEGED INFRINGERS WHO CAN AFFORD TO
LITIGATE OR HAVE SUCCESSFULLY LITIGAGED THE PATENT'S VALIDITY. 

THIS HAS SEVERAL ECONOMIC CONSEQUENCES.  FIRST, THE ALLEGED
INFRINGER WHO CANNOT AFFORD TO DEFEND MAY ABSORB THE ROYALTY COSTS IN
ORDER TO COMPETE WITH OTHER MANUFACTURERS WHO HAVE SECURED HOLDINGS
THAT THE PATENT IS INVALID, CUTTING THE PROFITABILITY OF HIS BUSINESS
AND PERHAPS ASSURING THAT HE WILL NEVER BE IN A FINANCIAL POSITION TO
CHALLENGE THE PATENT IN COURT.  ON THE OTHER HAND, THE MANUFACTURER WHO
HAS SECURED A JUDICIAL HOLDING THAT THE PATENT IS INVALID MAY BE ABLE
TO INCREASE HIS MARKET SHARE SUBSTANTIALLY, AND HE MAY DO SO WITHOUT
COMING CLOSE TO THE PRICE LEVELS THAT WOULD PREVAIL IN A COMPETITIVE
MARKET.  BECAUSE HE IS FREE OF ROYALTY PAYMENTS, THE MANUFACTURER WITH
A JUDGMENT AGAINST THE PATENT MAY PRICE HIS PRODUCTS HIGHER THAN
COMPETITIVE LEVELS ABSENT THE INVALID PATENT, YET JUST BELOW THE LEVELS
SET BY THOSE MANUFACTURERS WHO MUST PAY ROYALTIES.  THIRD, CONSUMERS
WILL PAY HIGHER PRICES FOR GOODS COVERED BY THE INVALID PATENT THAN
WOULD BE TRUE HAD THE INITIAL RULING OF INVALIDITY HAD AT LEAST THE
POTENTIAL FOR BROADER EFFECT.  AND EVEN IF THE ALLEGED INFRINGER CAN
ESCAPE ROYALTY OBLIGATIONS UNDER LEAR WHEN HE IS ABLE TO BEAR THE COST
OF LITIGATION, ANY ROYALTY PAYMENTS PASSED ON TO CONSUMERS ARE AS A
PRACTICAL MATTER UNRECOVERABLE BY THOSE WHO IN FACT PAID THEM.  BEYOND
ALL OF THIS, THE RULE OF TRIPLETT MAY PERMIT INVALID PATENTS TO SERVE
ALMOST AS EFFECTIVELY AS WOULD VALID PATENTS AS BARRIERS TO THE ENTRY
OF NEW FIRMS-- PARTICULARLY SMALL FIRMS. 

ECONOMIC CONSEQUENCES LIKE THESE, TO THE EXTENT THAT THEY CAN BE
AVOIDED, WEIGH IN FAVOR OF MODICATION OF THE TRIPLETT MUTUALITY
PRINCIPLE.  ARGUABLY, HOWEVER, THE AVAILABILITY OF ESTOPPEL TO ONE
CHARGED WITH INFRINGEMENT OF A PATENT PREVIOUSLY HELD INVALID WILL
MERELY SHIFT THE FOCUS OF LITIGATION FROM THE MERITS OF THE DISPUTE TO
THE QUESTION WHETHER THE PARTY TO BE ESTOPPED HAD A FULL AND FAIR
OPPORTUNITY TO LITIGATE HIS CLAIM IN THE FIRST ACTION.  MOORE &
CURRIER, SUPRA, N. 7, AT 309-310.  IT WOULD SEEM SUFFICIENT ANSWER TO
NOTE THAT ONCE IT IS DETERMINED THAT THE ISSUE IN BOTH ACTIONS WAS
IDENTICAL, IT WILL BE EASIER TO DECIDE WHETHER THERE WAS A FULL
OPPORTUNITY TO DETERMINE THAT ISSUE IN THE FIRST ACTION THAN IT WOULD
BE TO RELITIGATE COMPLETELY THE QUESTION OF VALIDITY.  AND, THIS DOES
NOT IN FACT SEEM TO HAVE BEEN A PROBLEM IN OTHER CONTEXTS, WHERE STRICT
MUTUALITY OF ESTOPPEL HAS BEEN ABANDONED.     IT HAS ALSO BEEN
SUGGESTED THAT 35 U.S.C. 285, WHICH ALLOWS A COURT TO AWARD REASONABLE
ATTORNEY'S FEES TO A PREVAILING PARTY "IN EXCEPTIONAL CASES,"  /44/
AND 35 U.S.C. 288, UNDER WHICH A PATENTEE FORFEITS HIS RIGHT TO RECOVER
COSTS EVEN AS TO THE VALID CLAIMS OF HIS PATENT IF HE DOES NOT DISCLAIM
INVALID CLAIMS BEFORE BRINGING SUIT, WORK TO INHIBIT REPETITIOUS SUITS
ON INVALID PATENTS.  BUT NEITHER OF THESE PROVISIONS CAN OPERATE UNTIL
AFTER LITIGATION HAS OCCURRED, AND THE OUTLAY REQUIRED TO TRY A LAWSUIT
PRESENTING VALIDITY ISSUES IS THE FACTOR WHICH UNDOUBTEDLY FORCES MANY
ALLEGED INFRINGERS INTO ACCEPTING LICENSES RATHER THAN LITIGATING.  IF
CONCERN ABOUT SUCH LICENSE AGREEMENTS IS PROPER, AS OUR CASES INDICATE
THAT IT IS, THE ACCUSED INFRINGER SHOULD HAVE AVAILABLE AN ESTOPPEL
DEFENSE THAT CAN BE PLEADED AFFIRMATIVELY AND DETERMINED ON A PRETRIAL
MOTION FOR JUDGMENT ON THE PLEADINGS OR SUMMARY JUDGMENT.  FED. RULES
CIV. PROC. 8(C), 12(C), AND 56. 

        C 

AS THE PRECEDING DISCUSSION INDICATES, ALTHOUGH PATENT TRIALS ARE
ONLY A SMALL PORTION OF THE TOTAL AMOUNT OF LITIGATION IN THE FEDERAL
COURTS, THEY TEND TO BE OF DISPROPORTIONATE LENGTH.  /45/  DESPITE
THIS, RESPONDENTS URGE THAT THE BURDEN ON THE FEDERAL COURTS FROM
RELITIGATION OF PATENTS ONCE HELD INVALID IS DE MINIMIS.  THEY RELY ON
THE PERIOD 1948-1959, 62 FEDERAL SUITS WERE TERMINATED WHICH INVOLVED
RELITIGATION OF A PATENT PREVIOUSLY HELD INVALID, A FIGURE CONSTITUTING
ABOUT 1% OF THE PATENT SUITS COMMENCED DURING THE SAME PERIOD.  THE
SAME FIGURES SHOW THAT THESE 62 SUITS INVOLVED 27 PATENTS, INDICATING
THAT SOME PATENTEES SUE MORE THAN ONCE AFTER THEIR PATENT HAS BEEN
INVALIDATED.  RESPONDENTS ALSO URGE THAT MOST OF THESE 62 SUITS WERE
SETTLED WITHOUT LITIGATION.  1961 STAFF REPORT 19.  BUT, AS WE HAVE
SUGGESTED, THIS FACT CUTS BOTH WAYS. 

EVEN ACCEPTING RESPONDENTS' CHARACTERIZATION OF THESE FIGURES AS DE
MINIMIS, IT IS CLEAR THAT ABROGATION OF TRIPLETT WILL SAVE SOME
JUDICIAL TIME IF EVEN A FEW RELATIVELY LENGTHY PATENT SUITS MAY BE
FAIRLY DISPOSED OF ON PLEAS OF ESTOPPEL.  MORE FUNDAMENTALLY, WHILE THE
CASES DO DISCUSS REDUCTION IN DOCKETS AS AN EFFECT OF ELIMINATION OF
THE MUTUALITY REQUIREMENT, THEY DO NOT PURPORT TO HOLD THAT PREDICTIONS
ABOUT THE ACTUAL AMOUNT OF JUDICIAL TIME THAT WILL BE SAVED UNDER SUCH
A HOLDING CONTROL DECISION OF THAT QUESTION.  OF COURSE, WE HAVE NO
COMPARABLE FIGURES FOR THE PAST DECADE CONCERNING SUITS BEGUN AFTER ONE
DECLARATION OF INVALIDITY, ALTHOUGH A NUMBER OF RECENT, SIGNIFICANT
EXAMPLES OF REPEATED LITIGATION OF THE SAME PATENT HAVE COME TO OUR
ATTENTION.  /46/  REGARDLESS OF THE MAGNITUDE OF THE FIGURES, THE
ECONOMIC CONSEQUENCES OF CONTINUED ADHERENCE TO TRIPLETT ARE SERIOUS
AND ANY REDUCTION OF LITIGATION IN THIS CONTEXT IS BY COMPARISON AN
INCIDENTAL MATTER IN CONSIDERING WHETHER TO ABROGATE THE MUTUALITY
REQUIREMENT. 

        D 

IT IS CLEAR THAT JUDICIAL DECISIONS HAVE TENDED TO DEPART FROM THE
RIGID REQUIREMENTS OF MUTUALITY.  IN ACCORDANCE WITH THIS TREND, THERE
HAS BEEN A CORRESPONDING DEVELOPMENT OF THE LOWER COURTS' ABILITY AND
FACILITY IN DEALING WITH QUESTIONS OF WHEN IT IS APPROPRIATE AND FAIR
TO IMPOSE AN ESTOPPEL AGAINST A PARTY WHO HAS ALREADY LITIGATED AN
ISSUE ONCE AND LOST.  AS ONE COMMENTATOR HAS STATED: 

     "UNDER THE TESTS OF TIME AND SUBSEQUENT DEVELOPMENTS, THE

  BERNHARD DECISION HAS PROVED ITS MERIT AND THE METTLE OF ITS

  AUTHOR.  THE ABRASIVE ACTION OF NEW FACTUAL CONFIGURATIONS AND OF

  ACTUAL HUMAN CONTROVERSIES, DISPOSED OF IN THE COMMON-LAW

  TRADITION BY COMPETENT COURTS, FAR MORE THAN THE COMMENTARIES OF

  ACADEMICIANS, LEAVES THE DECISION REVEALED FOR WHAT IT IS, AS IT

  WAS WRITTEN:  A SHINING LANDMARK OF PROGRESS IN JUSTICE AND LAW

  ADMINISTRATION."  CURRIE, 53 CALIF.L.REV.,AT 37. 

WHEN THESE JUDICIAL DEVELOPMENTS ARE CONSIDERED IN THE LIGHT OF OUR
CONSISTENT VIEW-- LAST PRESENTED IN LEAR, INC. V. ADKINS-- THAT THE
HOLDER OF A PATENT SHOULD NOT BE INSULATED FROM THE ASSERTION OF
DEFENSES AND THUS ALLOWED TO EXACT ROYALTIES FOR THE USE OF AN IDEA
THAT IS NOT IN FACT PATENTABLE OR THAT IS BEYOND THE SCOPE OF THE
PATENT MONOPOLY GRANTED, IT IS APPARENT THAT THE UNCRITICAL ACCEPTANCE
OF THE PRINCIPLE OF MUTUALITY OF ESTOPPEL EXPRESSED IN TRIPLETT V.
LOWELL IS TODAY OUT OF PLACE.  THUS, WE CONCLUDE THAT TRIPLETT SHOULD
BE OVERRULED TO THE EXTENT IT FORECLOSES A PLEA OF ESTOPPEL BY ONE
FACING A CHARGE OF INFRINGEMENT OF A PATENT THAT HAS ONCE BEEN DECLARED
INVALID. 

        IV 

RES JUDICATA AND COLLATERAL ESTOPPEL ARE AFFIRMATIVE DEFENSES THAT
MUST BE PLEADED.  FED. RULE CIV. PROC. 8(C).  THE PURPOSE OF SUCH
PLEADING IS TO GIVE THE OPPOSING PARTY NOTICE OF THE PLEA OF ESTOPPEL
AND A CHANCE TO ARGUE, IF HE CAN, WHY THE IMPOSITION OF AN ESTOPPEL
WOULD BE INAPPROPRIATE.  BECAUSE OF TRIPLETT V. LOWELL, PETITIONER DID
NOT PLEAD ESTOPPEL AND RESPONDENTS NEVER HAD AN OPPORTUNITY TO
CHALLENGE THE APPROPRIATENESS OF SUCH A PLEA ON THE GROUNDS SET FORTH
IN PART III-A OF THIS OPINION.  THEREFORE, GIVEN THE PARTIAL OVERRULING
OF TRIPLETT, WE REMAND THE CASE.  PETITIONER SHOULD BE ALLOWED TO AMEND
ITS PLEADINGS IN THE DISTRICT COURT TO ASSERT A PLEA OF ESTOPPEL. 
RESPONDENTS MUST THEN BE PERMITTED TO AMEND THEIR PLEADINGS, AND TO
SUPPLEMENT THE RECORD WITH ANY EVIDENCE SHOWING WHY AN ESTOPPEL SHOULD
NOT BE IMPOSED IN THIS CASE.  IF NECESSARY, PETITIONER MAY ALSO
SUPPLEMENT THE RECORD.  IN TAKING THIS ACTION, WE INTIMATE NO VIEWS ON
THE OTHER ISSUES PRESENTED IN THIS CASE.  THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CAUSE IF REMANDED TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

/1/  THE FOUNDATION HAS FILED SIX INFRINGEMENT ACTIONS BASED ON THE
ISBELL PATENT.  FOUNDATION'S BRIEF 22. 

/2/  THE FOUNDATION CLAIMED THAT ALL OF THE ISBELL PATENT'S 15
CLAIMS EXCEPT NUMBERS 6, 7, AND 8 WERE INFRINGED BY ONE OR MORE OF
WINEGARD'S 22 ANTENNA MODELS DESIGNED FOR RECEIVING TELEVISION
SIGNALS. 

/3/  THE DISTRICT JUDGE HELD: 

"THOSE SKILLED IN THE ART (OF ANTENNA DESIGN) AT THE TIME OF THE
ISBELL APPLICATION KNEW (1) THE LOG PERIODIC METHOD OF DESIGNING
FREQUENCY INDEPENDENT ANTENNAS, (2) THAT ANTENNA ARRAYS CONSISTING OF
STRAIGHT DIPOLES WITH PROGRESSIVELY VARIED LENGTHS AND SPACINGS EXHIBIT
GREATER BROAD BAND CHARACTERISTICS THAN THOSE CONSISTING OF DIPOLES OF
EQUAL LENGTH AND SPACING AND, (3) THAT A DIPOLE ARRAY TYPE ANTENNA
HAVING ELEMENTS SPACED LESS THAN 1/2 WAVELENGTH APART COULD BE MADE
UNIDIRECTIONAL IN RADIATION PATTERN BY TRANSPOSING THE FEEDER LINE
BETWEEN ELEMENTS AND FEEDING THE ARRAY AT THE END OF THE SMALLEST
ELEMENT. 

"IT IS THE OPINION OF THE COURT THAT IT WOULD HAVE BEEN OBVIOUS TO
ONE ORDINARILY SKILLED IN THE ART AND WISHING TO DESIGN A FREQUENCY
INDEPENDENT UNIDIRECTIONAL ANTENNA TO COMBINE THESE THREE OLD ELEMENTS,
ALL SUGGESTED BY THE PRIOR ART REFERENCES PREVIOUSLY DISCUSSED."  271
F.SUPP.,AT 418-419. 

/4/  SEE PETITION FOR CERTIORARI 13.  THE GRANT OF CERTIORARI WAS
NOT LIMITED TO THE VALIDITY VEL NON OF THE ISBELL PATENT. 

/5/  SEE ALSO NICKERSON V. KUTSCHERA, 419 F.2D 983, 984 (CA3 1969);
ID., AT 984-988 (HASTIE, C.J., DISSENTING); NICKERSON V. KUTSCHERA, 390
F.2D 812 (CA3 1968); TIDEWATER PATENT DEVELOPMENT CO. V. KITCHEN, 371
F.2D 1004, 1006 (CA4 1966); AGHNIDES V. HOLDEN, 226 F.2D 949, 951 (CA7
1955) (SCHNACKENBERG, J., CONCURRING); TECHNOGRAPH PRINTED CIRCUITS,
LTD. V. PACKARD BELL ELECTRONICS CORP., 290 F.SUPP.  308, 317-319 (CD
CAL. 1968) (HOLDING THAT TRIPLETT DID NOT BAR AN INFRINGEMENT SUIT
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON RES JUDICATA GROUNDS BECAUSE
(1) THE STATEMENTS AS TO MUTUALITY OF ESTOPPEL WERE DICTA, AND (2) THE
TRIPLETT RULE CONFLICTED NOT ONLY WITH MORE RECENT PRECEDENT IN THE
ESTOPPEL AREA BUT ALSO WITH THE SPIRIT OF CERTAIN PROVISIONS OF THE
FEDERAL RULES OF CIVIL PROCEDURE, ADOPTED SIX YEARS AFTER TRIPLETT WAS
DECIDED); NICKERSON V. PEP BOYS-- MANNY, MOE & JACK, 247 F.SUPP.  221
(DEL. 1965).  IN THE LATTER CASE, JUDGE STEEL IMPOSED AN ESTOPPEL ON
FACTS SOMEWHAT SIMILAR TO THOSE BEFORE US.  HE ANALYZED THE CASES
RELIED ON IN TRIPLETT, ID., AT 221-222, AND CONCLUDED:  "(FROM THE
STANDPOINT OF THE PRECEDENTS (IT CITES), . . . TRIPLETT V. LOWELL DOES
NOT REST UPON TOO SOLID A FOUNDATION."  ID., AT 222.  CF. TECHNOGRAPH
PRINTED CIRCUITS, LTD. V. UNITED STATES, 178 CT.CL. 543, 372 F.2D 969
(1967); AGRASHELL, INC. V. BERNARD SIROTTA CO., 281 F.SUPP.  704, 707
708 (EDNY 1968). 

/6/ IN REBUTTAL, COUNSEL FOR PETITIONER MADE IT CLEAR THAT HE WAS
URGING A "MODIFICATION" OF TRIPLETT. 

"Q.  WELL, HAS PETITIONER FINALLY DECIDED TO FOREGO ANY REQUEST FOR
RECONSIDERING TRIPLETT, ENTIRELY, OR IN ANY PART?  I UNDERSTOOD YOU
PREVIOUSLY TO SAY YOU WOULD WELCOME A MODIFICATION OF IT TO SOME
EXBENT. 

"A.  WELL, YOUR HONOR, I THINK THAT IS CORRECT.  THE QUESTION . . .
THAT WAS ASKED OF US IN OUR BRIEF BY THIS COURT WAS SHOULD TRIPLETT BE
OVERRULED.  THAT WE ANSWERED NO. 

"NOW THE QUESTION IS SHOULD THERE BE MODIFICATION.  I THINK IN ALL
OF LAW, WHEN SOMEBODY IS ABUSING IT, . . . THERE ARE EXCEPTIONS, AND I
THINK THE SOLICITOR (GENERAL) IS VERY CLOSE TO (USING) THE IDEA THAT IF
IN FACT THIS WERE THE SAME TRIAL AND THEY HAD THE OPPORTUNITY TO
PRESENT THEIR WITNESSES BEFORE, AND THEY DIDN'T DO IT, THAT IT
SERIOUSLY OUGHT TO BE CONSIDERED WHETHER THERE OUGHT TO BE AN ESTOPPEL
IN A SITUATION SUCH AS THIS."  TR. OF ORAL ARG. 64-65. 

RULE 23(1)(C) OF THE RULES OF THIS COURT STATES THAT "(ONLY THE
QUESTIONS SET FORTH IN THE PETITION OR FAIRLY COMPRISED THEREIN WILL BE
CONSIDERED BY THE COURT."  WHILE THIS RULE REFLECTS MANY DECISIONS
STATING THAT THE COURT IS NOT REQUIRED TO DECIDE QUESTIONS NOT RAISED
IN A PETITION FOR CERTIORARI, IT DOES NOT LIMIT OUR POWER TO DECIDE
IMPORTANT QUESTIONS NOT RAISED BY THE PARTIES.  THE RULE HAS CERTAIN
WELL-RECOGNIZED EXCEPTIONS, PARTICULARLY IN CASES ARISING IN THE
FEDERAL COURTS.  SEE R. ROBERTSON & F. KIRKHAM, JURISDICTION OF THE
SUPREME COURT OF THE UNITED STATES SEC. 418 (R. WOLFSON & P. KURLAND
ED. 1951); R. STERN & E. GRESSMAN, SUPREME COURT PRACTICE SEC. 6.37
(4TH ED. 1969). 

THE INSTANT CASE IS NOT ONE WHERE THE PARTIES HAVE NOT BRIEFED OR
ARGUED A QUESTION THAT THE COURT NEVERTHELESS FINDS CONTROLLING UNDER
ITS AUTHORITY TO NOTICE PLAIN ERROR.  SEE RULE 40(1)(D)(2), RULES OF
THE SUPREME COURT OF THE UNITED STATES; SILBER V. UNITED STATES, 370
U.S. 717 (1962).  RATHER, GIVEN WHAT TRANSPIRED AT ORAL ARGUMENT, THE
CASE IS LIKE MORAGNE V. STATES MARINE PLINES, INC., 398 U.S. 375
(1970).  THERE, AFTER GRANTING CERTIORARI, WE ASKED THE PARTIES TO
BRIEF AND ARGUE THE CONTINUED VALIDITY OF THE HARRISBURG, 119 U.S. 199
(1886).  THE PETITIONER, WHO WOULD HAVE STOOD TO GAIN IF THE HARRISBURG
PERISHED, ARGUED THAT THAT DECISION SHOULD BE OVERRULED, BUT STRONGLY
MAINTAINED THAT IT WAS UNNECESSARY TO DO SO IN ORDER TO AFFORD HER
RELIEF.  RESPONDENT, OF COURSE, ARGUED THAT THE HARRISBURG SHOULD BE
LEFT INTACT.  THE UNITED STATES, APPEARING AS AMICUS CURIAE, URGED THE
COURT TO OVERRULE THE HARRISBURG, AND THAT WAS THE RESULT. 

MOREOVER, IN A LANDMARK DECISION INVOLVING AN IMPORTANT QUESTION OF
JUDICIAL ADMINISTRATION IN THE FEDERAL COURTS, THIS COURT OVERRULED A
PRIOR DECISION OF MANY YEARS' STANDING ALTHOUGH THE PARTIES DID NOT
URGE SUCH A HOLDING IN THEIR BRIEFS.  ERIE R. CO. V. TOMPKINS, 304 U.S.
64, 66, 68-69 (1938).  SEE ALSO R. JACKSON, THE STRUGGLE FOR JUDICIAL
SUPREMACY 281-282 (1949).  WHILE THE QUESTION HERE IS HARDLY OF
COMPARABLE IMPORTANCE, IT IS A SIGNIFICANT ONE, IN THE SAME GENERAL
FIELD, AND IT HAS BEEN FULLY BRIEFED AND ARGUED BY THE PARTIES AND
AMICI.  SEE MORAGNE, 398 U.S.,AT 378-380, N. 1; CF. NLRB V. PITTSBURGH
S.S. CO., 337 U.S. 656, 661-662 (1949). 

/7/  SEE ALSO 225 U.S.,AT 130-131; STONE V. FARMERS' BANK, 174 U.S.
409 (1899); KEOKUK & W.R. CO. V. MISSOURI, 152 U.S. 301, 317 (1894);
LITCHFIELD V. GOODNOW, 123 U.S. 549, 552 (1887).  BIGELOW ALSO SPENT
SOME TIME DISCUSSING ONE OF THE MANY EXCEPTIONS TO THE MUTUALITY
REQUIREMENT, 225 U.S.,AT 127-128.  THESE "EXCEPTIONS" ARE DESCRIBED IN
MOORE & CURRIER, MUTUALITY AND CONCLUSIVENESS OF JUDGMENTS, 35
TUL.L.REV.  301, 311-329 (1961), AND NOTE, 35 GEO.WASH.L.REV.  1010,
1015-1017 (1967). 

/8/  UNDER THE TOPIC HEAD "PERSONS NOT PARTIES OR PRIVIES," SEC. 93
PROVIDES: 

"GENERAL RULE.  EXCEPT AS STATED IN SECS.94-111, A PERSON WHO IS NOT
A PARTY OR PRIVY TO A PARTY TO AN ACTION IN WHICH A VALID JUDGMENT
OTHER THAN A JUDGMENT IN REM IS RENDERED (A) CANNOT DIRECTLY OR
COLLATERALLY ATTACK THE JUDGMENT, AND (B) IS NOT BOUND BY OR ENTITLED
TO CLAIM THE BENEFITS OF AN ADJUDICATION UPON ANY MATTER DECIDED IN THE
ACTION."  ILLUSTRATION 10 OF THE RESTATEMENT STATED THE ESSENTIALS OF
THE TRIPLETT RULE: 

"A BRINGS AN ACTION AGAINST B FOR INFRINGEMENT OF A PATENT.  B
DEFENDS ON THE GROUND THAT THE ALLEGED PATENT WAS VOID AND OBTAINS
JUDGMENT.  A BRINGS AN ACTION FOR INFRINGEMENT OF THE SAME PATENT
AGAINST C WHO SEEKS TO INTERPOSE THE JUDGMENT IN FAVOR OF B AS RES
JUDICATA, BUT SETTING UP NO RELATION WITH B. ON DEMURRER, JUDGMENT
SHOULD BE FOR A." 

/9/ ATKINSON V. WHITE, 60 ME. 396, 398 (1872); JENKINS V. ATLANTIC
COAST LINE R. CO., 89 S.C. 408, 71 S.E. 1010 (1911); UNITED STATES V.
WEXLER, 8 F.2D 880 (EDNY 1925); BROBSTON V. DARBY BOROUGH, 290 PA. 331,
138 A. 849 (1927); EAGLE, STAR & BRITISH DOMINIONS INS. CO. V. HELLER,
149 VA. 82, 140 S.E. 314 (1927); LIBERTY MUTUAL INS. CO. V. GEORGE
COLON & CO., 260 N.Y. 305, 183 N.E. 506 (1932); COCA COLA CO. V. PEPSI
COLA CO., 36 DEL. 124, 172 A. 260 (SUPER.  CT. 1934); SEE ALSO GOOD
HEALTH DAIRY PRODUCTS CORP. V. EMERY, 275 N.Y. 14, 19, 9 N.E.2D 758,
760 (1937).  IN THE LATTER CASE, THE NEW YORK COURT OF APPEALS STATED: 
"IT IS TRUE THAT (THE OWNER OF THE AUTOMOBILE), NOT BEING A PARTY TO
THE EARLIER ACTIONS, AND NOT HAVING HAD A CHANCE TO LITIGATE HER RIGHTS
AND LIABILITIES, IS NOT BOUND BY THE JUDGMENT ENTERED THEREIN, BUT, ON
THE OTHER HAND, THAT IS NOT A VALID GROUND FOR ALLOWING THE PLAINTIFFS
TO LITIGATE ANEW THE PRECISE QUESTIONS WHICH WERE DECIDED AGAINST THEM
IN A CASE IN WHICH THEY WERE PARTIES." 

/10/  THE PRINCIPLE WAS ATTACKED IN COX, RES ADJUDICATA:  WHO
ENTITLED TO PLEAD, 9 VA.L.REV.(N.S.)  241, 245-247 (1923); COMMENT, 35
YALE L.J. 607, 610 (1926); COMMENT, 29 ILL.L.REV.  93, 94 (1934); NOTE,
18 N.Y.U.L.Q.REV.  565, 570-573 (1941); RECENT DECISIONS, 27 VA.L.REV. 
955 (1941); RECENT CASES, 15 U.CIN.L.REV.  349 (1941).  CF. VON
MOSCHZISKER, RES JUDICATA, 38 YALE L.J. 299, 303 (1929); COMMENT, 23
ORE.L.REV.  273 (1944); RECENT CASES, 54 HARV.L.REV.  889 (1941). 

/11/  FOR DISCUSSION OF THE "OFFENSIVE-DEFENSIVE" DISTINCTION, SEE
GENERALLY VESTAL, PRECLUSION/RE JUDICATA VARIABLES:  PARTIES, 50 IOWA
L.REV.  27, 43-76 (1964); NOTE, 35 GEO.WASH.L.REV.  1010 (1967).  SEE
ALSO CURRIE, MUTUALITY OF COLLATERAL ESTOPPEL:  LIMITS OF THE BERNHARD
DOCTRINE, 9 STAN.L.REV.  281 (1957); NOTE, 68 COL.L.REV.  1590 (1968);
NOTE, 52 CORNELL L.Q. 724 (1967). 

/12/  IN FEDERAL-QUESTION CASES, THE LAW APPLIED IS FEDERAL LAW. 
THIS COURT HAS NOTED, "IT HAS BEEN HELD IN NON DIVERSITY CASES, SINCE
ERIE R. CO. V. TOMPKINS, THAT THE FEDERAL COURTS WILL APPLY THEIR OWN
RULE OF RES JUDICATA."  HEISER V. WOODRUFF, 327 U.S. 726, 733 (1946). 
SEE ALSO VESTAL, RES JUDICATA/PRECLUSION BY JUDGMENT:  THE LAW APPLIED
IN FEDERAL COURTS, 66 MICH.L.REV.  1723, 1739, 1745 (1968); ID., CASES
CITED AT 1739-1740, NN. 62-64. 

/13/  SEE, E.G., LOBER V. MOORE, 135 U.S.APP.D.C. 146, 417 F.2D 714
(1969); PROVIDENT TRADESMENS BANK & TRUST CO. V. LUMBERMENS MUTUAL CAS.
CO., 411 F.2D 88, 92-95 (CA3 1969); SEGUROS TEPEYAC, S.A., COMPANIA
MEXICANA V. JERNIGAN, 410 F.2D 718, 726-728 (CA5 1969), CERT. DENIED,
396 U.S. 905 (1969); CAUEFIELD V. FIDELITY & CAS. CO. OF NEW YORK, 378
F.2D 876, 878-879 (CA5), CERT. DENIED, 389 U.S. 1009 (1967); GRAVES V.
ASSOCIATED TRANSPORT, INC., 344 F.2D 894 (CA4 1965); KURLAN V.
COMMISSIONER, 343 F.2D 625, 628-629 (CA2 1965); UNITED STATES V. UNITED
AIR LINES, 216 F.SUPP.  709, 725-730 (ED WASH., NEV. 1962), AFF'D AS TO
RES JUDICATA, SUB NOM. UNITED AIR LINES V. WIENER, 335 F.2D 379, 404
405 (CA9 1964); ZDANOK V. GLIDDEN CO., SUPRA, AT 954-956; DAVIS V.
MCKINNON & MOONEY, 266 F.2D 870, 872-873 (CA6 1959); PEOPLE V. OHIO
CAS. INS. CO., 232 F.2D 474, 477 (CA10 1956); ADRIAANSE V. UNITED
STATES, 184 F.2D 968 (CA 1 1950), CERT. DENIED, 340 U.S. 932 (1951);
MARYLAND V. CAPITAL AIRLINES, INC., 267 F.SUPP.  298, 302-305 (MD.
1967); MATHEWS V. NEW YORK RACING ASSN., INC., 193 F.SUPP.  293 (SDNY
1961); EISEL V. COLUMBIA PACKING CO., 181 F.SUPP.  298 (MASS. 1960). 

/14/  SEE CASES CITED N. 9, SUPRA.  A MORE RECENT CANVASS OF CASES
IS PRESENTED IN NOTE, 35 GEO.WASH.L.REV.  1010 (1967). 

THE SUPREME COURT OF OREGON WAS THE MOST RECENT STATE COURT TO ADOPT
BERNHARD.  BAHLER V. FLETCHER, 257 ORE.  1, 474 P.2D 329 (1970); SEE
ALSO PENNINGTON V. SNOW, 471 P.2D 370, 376-377 (ALASKA 1970); ELLIS V.
CROCKETT, 51 HAW.  45, 56, 451 P.2D 814, 822 (1969); PAT ERUSSE REALTY
CO. V. LINGO, 249 MD. 33, 238 A.2D 100 (1968); SANDERSON V. BALFOUR,
109 N.H. 213, 247 A.2D 185 (1968); HOME OWNERS FED. SAVINGS & LOAN
ASSN. V. NORTHWESTERN FIRE & MARINE INS. CO., 354 MASS. 448, 451-455,
238 N.E.2D 55, 57-59 (1968) (APPROVING USE OF BERNHARD BY A DEFENDANT
AGAINST A PREVIOUSLY LOSING PLAINTIFF); DEWITT, INC. V. HALL, 19 N.Y.2D
141, 225 N.E.2D 195 (1967); LUSTIK V. RANKILA, 269 MINN. 515, 131
N.W.2D 741 (1964); LUCAS V. VELIKANJE, 1 WASH.APP.  888, 471 P.2D 103
(1970) (LOWER STATE APPELLATE COURT HELD THAT STATE SUPREME COURT WOULD
FOLLOW BERNHARD IN AN APPROPRIATE CASE); HOWELL V. VITO'S TRUCKING &
EXCAVATING CO., 20 MICH.APP.  140, 173 N.W.2D 777 (1969); DESMOND V.
KRAMER, 96 N.J.SUPER.  96, 232 A.2D 470 (1967); LYNCH V. CHICAGO
TRANSIT AUTHORITY, 62 ILL.APP.2D 220, 210 N.E.2D 792 (1965). 

/15/  SEE F. JAMES.  CIVIL PROCEDURE 552-573 (1965); VESTAL, RE
JUDICATA/PRECLUSION BY JUDGMENT:  THE LAW APPLIED IN FEDERAL COURTS, 66
MICH.L.REV.  1723, 1724 (1968). 

/16/  SEE MOORE V. UNITED STATES, 360 F.2D 353 (CA4 1965);
TEITELBAUM FURS, INC. V. DOMINION INS. CO., LTD., 58 CAL.2D 601, 375
P.2D 439 (1962); EAGLE, STAR & BRITISH DOMINIONS INS. CO. V. HELLER,
149 VA. 82, 140 S.E. 314 (1927); VESTAL, SUPRA, N. 15, AT 1724; VESTAL
& COUGHENOUR, PRECLUSION/RES JUDICATA VARIABLES:  CRIMINAL
PROSECUTIONS, 19 VAND.L.REV.  683 (1966). 

/17/  WE AGREE WITH THE GOVERNMENT THAT CONGRESS HAS NOT APPROVED
THE TRIPLETT RULE, EITHER BY ITS FAILURE TO MODIFY THAT RULE OVER THE
YEARS, SEE BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398 U.S. 235, 241
242 (1970); GIROUARD V. UNITED STATES, 328 U.S. 61, 69-70 (1946);
HELVERING V. HALLOCK, 309 U.S. 106, 119-120 (1940); BY ANYTHING THAT
TRANSPIRED DURING THE PREPARATION FOR AND ACCOMPLISHMENT OF THE 1952
REVISION OF THE PATENT CODE; OR BECAUSE IN REM INVALIDITY PROVISIONS,
SEE N. 34, INFRA, HAVE DISAPPEARED FROM RECENT PROPOSALS FOR REFORM OF
THE PATENT STATUTE. 

/18/  PROFESSORS MOORE AND CURRIER POINT OUT THAT ONE OF THE
UNDERPINNINGS OF THE GENERAL CONCEPT OF RES JUDICATA IS THE PREVENTION
OF HARASSMENT OF SOME LITIGANTS BY THE REPEATED ASSERTION OF THE SAME
OR DIFFERENT CLAIMS AGAINST THEM BY OTHERS, AND THAT THIS PROBLEM IS
SIMPLY NOT PRESENT WHERE THE PERSON ASSERTING AN ESTOPPEL WAS NOT A
PARTY (OR PRIVY TO A PARTY) IN THE EARLIER SUIT.  THEY THEN ARGUE THAT
"THE DOCTRINE OF JUDICIAL FINALITY IS NOT A CATCHPENNY CONTRIVANCE TO
DISPOSE OF CASES MERELY FOR THE SAKE OF DISPOSITION AND CLEAR UP
DOCKETS IN THAT MANNER."  MOORE & CURRIER, SUPRA, N. 7, AT 308.  ON THE
OTHER HNAD, PROFESSOR VESTAL ARGUES THAT "(JUDGES, OVERWHELMED BY
DOCKET LOADS, ARE LOOKING FOR DEVICES TO EXPEDITE THEIR WORK. 
PRECLUSION OFFERS AN OPPORTUNITY TO ELIMINATE LITIGATION WHICH IS NOT
NECESSARY OR DESIRABLE."  VESTAL, SUPRA, N. 15, AT 1724. 

/19/  BUT SEE UNITED STATES V. UNITED AIR LINES, SUPRA; ZDANOK V.
GLIDDEN CO., SUPRA; CURRIE, CIVIL PROCEDURE:  THE TEMPEST BREWS, 53
CALIF.L.REV.  25, 28-37 (1965); VESTAL, 50 IOWA L.REV.,AT 55-59; CF.
SEMMEL, COLLATERAL ESTOPPEL, MUTUALITY AND JOINDER OF PARTIES, 68
COL.L.REV.  1457 (1968); WEINSTEIN, REVISION OF PROCEDURE:  SOME
PROBLEMS IN CLASS ACTIONS, 9 BUFFALO L.REV.  433, 448-454 (1960); NOTE,
35 GEO.WASH.L.REV.  1010 (1967). 

/20/  U.S. CONST., ART. I, SEC. 8, CL. 8. 

/21/  THE COURT OF CLAIMS HAS STATED: 

"FOR PATENT LITIGATION THERE IS A SPECIAL REASON WHY RELITIGATION IS
NOT AUTOMATICALLY BANNED AS NEEDLESS OR REDUNDANT, AND WHY ERROR SHOULD
NOT BE PERPETUATED WITHOUT INQUIRY.  PATENT VALIDITY RAISES ISSUES
SIGNIFICANT TO THE PUBLIC AS WELL AS TO THE NAMED PARTIES.  SINCLAIR &
CARROLL CO. V. INTERCHEMICAL CORP., 325 U.S. 327, 330 (1945).  IT IS
JUST AS IMPORTANT THAT A GOOD PATENT BE ULTIMATELY UPHELD AS THAT A BAD
ONE BE DEFINITIVELY STRICKEN.  AT THE SAME TIME IT MUST BE REMEMBERED
THAT THE ISSUE OF PATENT VALIDITY IS OFTEN 'AS FUGITIVE, IMPALPABLE,
WAYWARD, AND VAGUE A PHANTOM AS EXISTS IN THE WHOLE PARAPHERNALIA OF
LEGAL CONCEPTS.  . . . IF THERE BE AN ISSUE MORE TROUBLESOME, OR MORE
APT FOR LITIGATION THAN THIS, WE ARE NOT AWARE OF IT.'  HARRIES V. AIR
KING PRODUCTS CO., SUPRA, 183 F.2D AT 162 (PER L.HAND, C.J.).  BECAUSE
OF THE INTRINSIC NATURE OF THE SUBJECT, THE FIRST DECISION CAN BE QUITE
WRONG, OR DERIVED FROM AN INSUFFICIENT RECORD OR PRESENTATION." 
TECHNOGRAPH PRINTED CIRCUITS, 178 CT.CL.,AT 556, 373 F.2D, AT 977-978. 

/22/  SEE NYYSSONEN V. BENDIX CORP., 343 F.2D 531, 532 (CA1 1965);
HARRIES V. AIR KING PRODUCTS CO., 183 F.2D 158, 164 (CA2 1950); PARKE
DAVIS & CO. V. H. K. MULFORD CO., 189 F. 95, 115 (SDNY 1911). 

/23/  THE TRIPLETT RULE APPARENTLY OPERATES TO DEFEAT A PLEA OF
ESTOPPEL WHERE A PATENT HAS BEEN DECLARED INVALID UNDER PROVISIONS
OTHER THAN 35 U.S.C. 103, THE SECTION DEFINING NONOBVIOUSNESS OF THE
SUBJECT MATTER AS A PREREQUISITE TO PATENTABILITY AND GIVING RISE TO
MANY TECHNICAL ISSUES WHICH IT IS CLAIMED COURTS ARE POORLY EQUIPPED TO
JUDGE.  UNDER SECS. 101 AND 102 OF THE 1952 ACT, PATENTABILITY IS ALSO
CONDITIONED ON NOVELTY AND UTILITY.  SOME SUBSECTIONS OF SEC. 102--
EACH OF WHICH CAN RESULT IN THE LOSS OF A PATENT-- INVOLVE COMPLETELY
NONTECHNICAL ISSUES.  YET THE BREADTH OF TRIPLETT WOULD FORCE
DEFENDANTS IN REPETITIOUS SUITS ON A PATENT INVALIDATED ON ONE OF THESE
GROUNDS TO REPEAT PROOF THAT MAY BE SIMPLE OF UNDERSTANDING YET
EXPENSIVE TO PRODUCE. 

/24/  SEE NN. 34-35, INFRA. 

/25/  SEE ZDANOK V. GLIDDEN CO., 327 F.2D, AT 956; TEITELBAUM FURS,
INC., 58 CAL.2D, AT 606-607, 375 P.2D, AT 441; CF. BERNER V. BRITISH
COMMONWEALTH PACIFIC AIRLINES, LTD., 346 F.2D 532, 540-541 (CA2 1965). 

/26/  IT HAS BEEN ARGUED THAT ONE FACTOR TO BE CONSIDERED IN
DECIDING WHETHER TO ALLOW A PLEA OF ESTOPPEL IN A SECOND ACTION IS THE
POSSIBILITY THAT THE JUDGMENT IN THE FIRST ACTION WAS A COMPROMISE
VERDICT BY A JURY.  THIS PROBLEM HAS NOT, HOWEVER, BEEN DEEMED
SUFFICIENT TO PRECLUDE ABROGATION OF THE MUTUALITY PRINCIPLE IN OTHER
CONTEXTS.  NOR WOULD IT APPEAR TO BE A SIGNIFICANT CONSIDERATION IN
DECIDING WHEN TO SUSTAIN A PLEA OF ESTOPPEL IN PATENT LITIGATION, SINCE
MOSE PATENT CASES ARE TRIED TO THE COURT.  SEE N. 30, INFRA. 

/27/  HEARINGS ON PATENT LAW REVISION BEFORE THE SUBCOMMITTEE ON
PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE
JUDICIARY, 90TH CONG., 2D SESS., 616 (1968) (STATEMENT OF HENRY J.
CAPPELLO, PRESIDENT, SPACE RECOVERY RESEARCH CENTER, INC., AND
CONSULTANT ON PATENT POLICY FOR THE NATIONAL SMALL BUSINESS
ASSOCIATION) (HEREAFTER 1968 SENATE HEARINGS). 

/28/  HEARINGS ON PATENT LAW REVISION BEFORE THE SUBCOMMITTEE ON
PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE
JUDICIARY, 90TH CONG., 1ST SESS., 103 (1967) (STATEMENT OF JAMES W.
BIRKENSTOCK, VICE PRESIDENT, I.B.M. CORP.) (HEREAFTER 1967 SENATE
HEARINGS). 

IT IS SIGNIFICANT THAT THE PRESIDENT'S COMMISSION IDENTIFIED AS ONE OF
ITS PRIMARY OBJECTIVES "REDUCING) THE EXPENSE OF OBTAINING AND
LITIGATING A PATENT."  "TO PROMOTE THE PROGRESS OF . . . USEFUL ARTS"
IN AN AGE OF EXPLODING TECHNOLOGY, REPORT OF THE PRESIDENT'S COMMISSION
ON THE PATENT SYSTEM 4 (1966) (HEREAFTER COMMISSION REPORT).  JUDGE
RICH OF THE COURT OF CUSTOMS AND PATENT APPEALS, WHOSE PUBLIC REACTION
TO THE COMMISSION REPORT WAS MIXED, DID AGREE THAT "(LITIGATION BEING
AS EXPENSIVE AS IT IS, NO ONE EMBARKS UPON IT LIGHTLY."  RICH, THE
PROPOSED PATENT LEGISLATION:  SOME COMMENTS, 35 GEO.WASH.L.REV.  641,
644 (1967). 

/29/  IN FISCAL 1968, 71,449 CIVIL ACTIONS WERE FILED IN THE FEDERAL
DISTRICT COURTS, 857 OF WHICH WERE PATENT SUITS.  IN FISCAL 1969,
77,193 CIVIL SUITS WERE FILED; 889 INVOLVED PATENTS.  IN FISCAL 1970,
87,321 CIVIL SUITS WERE INITIATED, 1,023 OF WHICH INVOLVED PATENTS. 
ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS FOR THE FISCAL YEAR ENDED JUNE 30, 1968, TABLE C-2
(1969); ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS FOR THE FISCAL YEAR ENDED JUNE 30, 1969, TABLE
C-2 (1970); ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS FOR THE FISCAL YEAR ENDED JUNE 30, 1970,
TABLE C-2 (TEMP.  ED. 1971) (HEREAFTER ANNUAL REPORT 1968, ETC.). 

/30/  MOST PATENT CASES ARE TRIED TO THE COURT.  IN FISCAL 1968,
1969, AND 1970, THE TOTAL NUMBER OF PATENT CASES GOING TO TRIAL AND THE
NUMBER OF PATENT CASES GOING TO JURIES WERE, RESPECTIVELY:  1968-- 131,
2; 1969-- 132, 8; AND 1970-- 119, 3.  ANNUAL REPORTS 1968-1970, TABLE C
8. 

/31/  THE TABLE BELOW COMPARES PATENT CASES TRIED TO THE COURT
DURING FISCAL 1968, 1969, AND 1970 WITH ALL NONJURY CIVIL CASES TRIED
DURING THE SAME YEARS.  IT REVEALS SEVERAL FACTS:  (1) SOMETHING OVER
90% OF ALL CIVIL LITIGATION IS CONCLUDED WITHIN THREE FULL TRIAL DAYS,
BUT LESS THAN HALF THE PATENT CASES ARE CONCLUDED IN SUCH A PERIOD OF
TIME; (2) WHEREAS BETWEEN 1.2% AND 1.7% OF CIVIL NONJURY TRIALS IN
GENERAL REQUIRE 10 OR MORE TRIAL DAYS, BETWEEN 14.7% AND 19% OF THE
PATENT CASES TRIED TO THE COURT REQUIRE 10 OR MORE DAYS TO CONCLUDE;
AND (3), WHILE THE THREE-YEAR TREND IN THE DISTRICT COURTS APPEARS TO
BE TOWARD MORE EXPEDITIOUS HANDLING OF CIVIL CASES TRIED WITHOUT A JURY
IN TERMS OF AN ANNUAL INCREASE IN THE PERCENTAGE OF CASES CONCLUDED IN
THREE TRIAL DAYS OR LESS AND AN OVERALL DECREASE IN THE PERCENTAGE OF
CASES REQUIRING 10 OR MORE DAYS, THE TRENDS IN PATENT LITIGATION ARE
EXACTLY CONTRARY.  (TABLE OMITTED) 

/32/  AN ANALYSIS OF PATENT LITIGATION STATISTICS, STAFF REPORT OF
THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE
COMMITTEE ON THE JUDICIARY, 86TH CONG., 2D SESS., 2 (1961) (COMMITTEE
PRINT) (HEREAFTER 1961 STAFF REPORT). 

/33/  SEE N. 31, SUPRA.  THE 1961 STAFF REPORT ALSO NOTED THAT
DURING THE "FISCAL YEARS 1954-58 . . . NINE (PATENT) TRIALS CONSUMED 20
OR MORE DAYS."  ID., AT 2.  FURTHER EXAMINATION OF RECENT FIGURES FROM
THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS INDICATES THAT
THIS STATEMENT WOULD ALSO BE OF QUESTIONABLE VALIDITY TODAY.  IN FISCAL
1968, 38 CIVIL TRIALS THAT TOOK 20 DAYS OR MORE TO TRY WERE
TERMINATED.  OF THESE, FIVE, OR ABOUT 13%, WERE PATENT CASES.  THE
COMPARABLE FIGURES FOR FISCAL 1969 ARE 28 CIVIL TRIALS REQUIRING 20 OR
MORE DAYS CONCLUDED, SEVEN (25%) OF WHICH WERE PATENT CASES.  IN FISCAL
1970, 32 SUCH CIVIL CASES WERE TERMINATED; SEVEN, OR ABOUT 22%, OF
THESE SUITS WERE PATENT CASES.  ANNUAL REPORTS, 1968-1970, TABLE C-9. 
/34/  "ESTOPPEL AND CANCELLATION 

"(A) IN ANY ACTION IN A FEDERAL COURT IN WHICH THE ISSUE OF THE
VALIDITY OR SCOPE OF A CLAIM OF A PATENT IS PROPERLY BEFORE THE COURT,
AND THE OWNER OF THE PATENT AS SHOWN BY THE RECORDS OF THE PATENT
OFFICE IS A PARTY OR HAS BEEN GIVEN NOTICE AS PROVIDED IN SUBSECTION
(C) OF THIS SECTION, A FINAL ADJUDICATION, FROM WHICH NO APPEAL HAS
BEEN OR CAN BE TAKEN, LIMITING THE SCOPE OF THE CLAIM OR HOLDING IT TO
BE INVALID, SHALL CONSTITUTE AN ESTOPPEL AGAINST THE PATENTEE, AND
THOSE IN PRIVITY WITH HIM, IN ANY SUBSEQUENT FEDERAL ACTION, AND MAY
CONSTITUTE AN ESTOPPEL IN SUCH OTHER FEDERAL ACTIONS AS THE LATTER
COURT MAY DETERMINE, INVOLVING SUCH PATENT.  WITHIN THIRTY DAYS OF SUCH
ADJUDICATION THE CLERK OR THE COURT SHALL TRANSMIT NOTICE THEREOF TO
THE COMMISSIONER, WHO SHALL PLACE THE SAME IN THE PUBLIC RECORDS OF THE
PATENT OFFICE PERTAINING TO SUCH PATENT, AND ENDORSE NOTICE ON ALL
COPIES OF THE PATENT THEREAFTER DISTRIBUTED BY THE PATENT OFFICE THAT
THE PATENT IS SUBJECT TO SUCH ADJUDICATION. 

"(B) IN ANY ACTION AS SET FORTH IN SUBSECTION (A) OF THIS SECTION,
UPON A FINAL ADJUDICATION FROM WHICH NO APPEAL HAS BEEN OR CAN BE TAKEN
THAT A CLAIM OF THE PATENT IS INVALID, THE COURT MAY ORDER CANCELLATION
OF SUCH CLAIM FROM THE PATENT.  SUCH ORDER SHALL BE INCLUDED IN THE
NOTICE TO THE COMMISSIONER SPECIFIED IN SUBSECTION (A) OF THIS SECTION,
AND THE NOTICE OF CANCELLATION OF A CLAIM SHALL BE PUBLISHED BY THE
COMMISSIONER AND ENDORSED ON ALL COPIES OF THE PATENT THEREAFTER
DISTRIBUTED BY THE PATENT OFFICE. 

"(C) IN ANY ACTION IN A FEDERAL COURT IN WHICH THE VALIDITY OR SCOPE
OF A CLAIM OF A PATENT IS DRAWN INTO QUESTION, THE OWNER OF THE PATENT,
AS SHOWN BY THE RECORDS OF THE PATENT OFFICE, SHALL HAVE THE
UNCONDICTIONAL RIGHT TO INTERVENE TO DEFEND THE VALIDITY OR SCOPE OF
SUCH CLAIM.  THE PARTY CHALLENGING THE VALIDITY OR SCOPE OF THE CLAIM
SHALL SERVE UPON THE PATENT OWNER A COPY OF THE EARLIEST PLEADINGS
ASSERTING SUCH INVALIDITY.  IF SUCH OWNER CANNOT BE SERVED WITH SUCH
PLEADINGS, AFTER REASONABLE DILIGENCE IS EXERCISED, SERVICE MAY BE MADE
AS PROVIDED FOR IN THE FEDERAL RULES OF CIVIL PROCEDURE AND, IN
ADDITION, NOTICE SHALL BE TRANSMITTED TO THE PATENT OFFICE AND SHALL BE
PUBLISHED IN THE OFFICIAL GAZETTE." 

/35/  "CANCELLATION BY COURT 

"(A) IN ANY ACTION IN A FEDERAL COURT IN WHICH THE ISSUE OF THE
VALIDITY OF A CLAIM OF A PATENT IS DRAWN INTO QUESTION, AND THE OWNER
OF THE PATENT IS SHOWN BY THE RECORDS OF THE PATENT OFFICE IS A PARTY
OR HAS BEEN GIVEN NOTICE AS PROVIDED IN SUBSECTION (B) OF THIS SECTION,
THE COURT MAY, UPON FINAL ADJUDICATION, FROM WHICH NO APPEAL HAS BEEN
TAKEN, HOLDING THE CLAIM TO BE INVALID AFTER SUCH CLAIM HAS PREVIOUSLY
BEEN HELD INVALID ON THE SAME GROUND BY A COURT OF COMPETENT
JURISDICTION FROM WHICH NO APPEAL HAS BEEN OR CAN BE TAKEN, ORDER
CANCELLATION OF SUCH CLAIM FROM THE PATENT.  WITHIN THIRTY DAYS OF SUCH
ORDER THE CLERK OF THE COURT SHALL TRANSMIT NOTICE THEREOF TO THE
COMMISSIONER, WHO SHALL PLACE THE SAME IN THE PUBLIC RECORDS OF THE
PATENT OFFICE PERTAINING TO SUCH PATENT, AND NOTICE OF CANCELLATION OF
THE CLAIM SHALL BE PUBLISHED BY THE COMMISSIONER AND ENDORSED ON ALL
COPIES OF THE PATENT THEREAFTER DISTRIBUTED BY THE PATENT OFFICE. 

"(B) IN ANY ACTION IN A FEDERAL COURT IN WHICH THE VALIDITY OF A
CLAIM OF A PATENT IS DRAWN INTO QUESTION, THE OWNER OF THE PATENT, AS
SHOWN BY THE RECORDS OF THE PATENT OFFICE, SHALL HAVE THE UNCONDITIONAL
RIGHT TO INTERVENE TO DEFEND THE VALIDITY OF SUCH CLAIM.  THE PARTY
CHALLENGING THE VALIDITY OF THE CLAIM SHALL SERVE UPON THE PATENT OWNER
A COPY OF THE EARLIEST PLEADINGS ASSERTING SUCH INVALIDITY.  IF SUCH
OWNER CANNOT BE SERVED WITH SUCH PLEADINGS, AFTER REASONABLE DILIGENCE
IS EXERCISED, SERVICE MAY BE MADE AS PROVIDED FOR IN THE FEDERAL RULES
OF CIVIL PROCEDURE AND, IN ADDITION, NOTICE SHALL BE TRANSMITTED TO THE
PATENT OFFICE AND SHALL BE PUBLISHED IN THE OFFICIAL GAZETTE." 

/36/  SEE, E.G., HEARINGS ON GENERAL REVISION OF THE PATENT LAWS
BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 90TH
CONG., 1ST AND 2D SESS. (1967-1968); 1967 SENATE HEARINGS, SUPRA, N.
28.  IN HOUSE HEARINGS, TESTIMONY ON IN REM INVALIDITY PROVISIONS
COVERED THE FULL SPECTRUM OF OPINION.  THE PATENT SECTION OF THE
AMERICAN BAR ASSOCIATION WAS OPPOSED.  HOUSE HEARINGS 464-465.  THE
DEPARTMENT OF JUSTICE FAVORED IT.  ID., AT 622.  THE JUDICIAL
CONFERENCE OF THE UNITED STATES APPROVED THE PROVISION IN PRINCIPLE. 
REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED
STATES, FEB. AND SEPT. 1968, P. 81.  TESTIMONY IN THE SENATE HEARINGS
WAS ALSO VARIED. 

/37/  ALTHOUGH THESE BILLS DIED IN COMMITTEE, IT IS NOTEWORTHY THAT
BY ASCRIBING BINDING EFFECT TO THE FIRST FEDERAL DECLARATION OF
INVALIDITY, SOME OF THE PROPOSED PROVISIONS WENT BEYOND MERE ABROGATION
OF TRIPLETT'S MUTUALITY PRINCIPLE.  HAD THE STATUTES BEEN ENACTED AS
PROPOSED, SEE NN. 34-35, SUPRA, THE QUESTION OF WHETHER THE PATENTEE
HAD A FULL AND FAIR OPPORTUNITY TO LITIGATE THE VALIDITY OF HIS PATENT
IN THE FIRST SUIT WOULD APPARENTLY HAVE BEEN IRRELEVANT ONCE IT WAS
SHOWN THAT THE PATENTEE HAD RECEIVED NOTICE THAT THE VALIDITY OF HIS
PATENT WAS IN ISSUE. 

/38/  SEE GENERALLY SEARS, ROEBUCK & CO. V. STIFFEL CO., 376 U.S.
225, 229-230 (1964); COMPCO CORP. V. DAY-BRITE LIGHTING, 376 U.S. 234
(1964); KENNEDY, PATENT AND ANTITRUST POLICY:  THE SEARCH FOR A UNITARY
THEORY, 35 GEO.WASH.L.REV.  512 (1967). 

/39/  UNITED STATES V. BELL TELEPHONE CO., 128 U.S. 315, 357, 370
(1888); SEE ALSO KATZINGER CO. V. CHICAGO MFG. CO., 329 U.S. 394, 400
401 (1947); CUNO CORP. V. AUTOMATIC DEVICES CORP., 314 U.S. 84, 92
(1941); A. & P. TEA CO. V. SUPERMARKET CORP., 340 U.S. 147, 154-155
(1950) (CONCURRING OPINION). 

/40/  SEE ALSO BRULOTTE V. THYS CO., 379 U.S. 29 (1964);
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392 (1947); UNITED
STATES V. GYPSUM CO., 333 U.S. 364, 389 (1948); SCOTT PAPER CO. V.
MARCALUS CO., 326 U.S. 249 (1945); MORTON SALT CO. V. SUPPIGER CO., 314
U.S. 488, 491-492 (1942); ETHYL GASOLINE CORP. V. UNITED STATES, 309
U.S. 436, 455-459 (1940); INTERNATIONAL BUSINESS MACHINES CORP. V.
UNITED STATES, 298 U.S. 131 (1936); CARBICE CORP. V. AMERICAN PATENTS
CORP., 283 U.S. 27 (1931); MOTION PICTURES PATENTS CO. V. UNIVERSAL
FILM CO., 243 U.S. 502 (1917). 

/41/  IN WALKER PROCESS EQUIPMENT, INC. V. FOOD MACHINERY & CHEMICAL
CORP., 382 U.S. 172 (1965), THE DEFENDANT IN AN INFRINGEMENT ACTION WAS
PERMITTED TO COUNTERCLAIM FOR TREBLE DAMAGES UNDER SEC. 4 OF THE
CLAYTON ACT BY ASSERTING THAT THE PATENT WAS INVALID BECAUSE PROCURED
OR ENFORCED WITH KNOWLEDGE OF FRAUD PRACTICED ON THE PATENT OFFICE,
"PROVIDED THE OTHER ELEMENTS NECESSARY TO A (MONOPLOIZATION CASE UNDER
SEC. 2 OF THE SHERMAN ACT) ARE PRESENT."  ID., AT 174. 

/42/  SEE MACGREGOR V. WESTINGHOUSE ELECTRIC & MFG. CO., 329 U.S.
402, 407 (1947); KATZINGER CO. V. CHICAGO MFG. CO., 329 U.S.,AT 398
401; SCOTT PAPER CO. V. MARACALUS CO., SUPRA; SOLA ELECTRIC CO. V.
JEFFERSON ELECTRIC CO., 317 U.S. 173 (1942); WESTINGHOUSE ELECTRIC &
MFG. CO. V. FORMICA INSULATION CO., 266 U.S. 342 (1924); POPE MFG. CO.
V. GORMULLY, 144 U.S. 224, 234 (1892). 

/43/  SEE SEARS, 376 U.S.,AT 229-231; SEE ALSO BECKMAN INSTRUMENTS,
INC. V. TECHNICAL DEVELOPMENT CORP., 433 F.2D 55, 58-59 (CA7 1970);
KRALY V. NATIONAL DISTILLERS & CHEMICAL CORP., 319 F.SUPP.  1349 (ND
ILL. 1970). 

/44/  INCLUDING, APPARENTLY, A SUIT ON A PATENT PREVIOUSLY HELD
INVALID AND AS TO WHICH THE SECOND COURT CAN FIND NO REASONABLE
ARGUMENT FOR VALIDITY.  SEE TIDEWATER PATENT DEVELOPMENT CO. V.
KITCHEN, 371 F.2D 1004, 1013 (CA4 1966); DOLE VALVE CO. V. PERFECTION
BAR EQUIPMENT, INC., 318 F.SUPP.  122 (ND ILL. 1970). 

/45/  SEE NN. 31-33, SUPRA, AND ACCOMPANYING TEXT. 

/46/  SEE, E.G., CASES CITED N. 5, SUPRA; BRIEF FOR PETITIONER B-T
13-14; BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 28 AND 32 N. 12. 

ROBERT H. RINES ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE RICHARD S. PHILLIPS, PAUL J. FOLEY, AND NELSON H. SHAPIRO. 

WILLIAM A. MARSHALL ARGUED THE CAUSE FOR RESPONDENT UNIVERSITY OF
ILLINOIS FOUNDATION.  WITH HIM ON THE BRIEF WERE CHARLES J. MERRIAM AND
BASIL P. MANN.  SIDNEY G. FABER ARGUED THE CAUSE FOR RESPONDENT JFD
ELECTRONICS CORP. WITH HIM ON THE BRIEF WERE JEROME M. BERLINER, ROBERT
C. FABER, AND MYRON C. CASS. 

ASSISTANT ATTORNEY GENERAL MCLAREN ARGUED THE CAUSE FOR THE UNITED
STATES AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL GRAY, PETER L.
STRAUSS, HOWARD E. SHAPIRO, AND WALTER H. FLEISCHER. 

BRIEFS OF AMICI CURIAE WERE FILED BY DONALD R. DUNNER, JAMES B.
GAMBRELL, AND W. BROWN MORTON, JR., FOR THE AMERICAN PATENT LAW
ASSOCIATION; BY THEODORE W. ANDERSON FOR THE AUTOMATIC ELECTRIC CO.; BY
HAROLD F. MCNENNY, JOHN F. PEARNE, AND WALTHER E. WYSS FOR THE FINNEY
CO.; AND BY JOSEPH B. BRENNAN AND RICHARD D. MASON FOR THE KAWNEER CO.,
INC.
..END :










UNITED STATES V. REIDEL, 402 U.S. 351 


       UNITED STATES V. REIDEL

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

DISTRICT OF CALIFORNIA

        NO. 534.  ARGUED JANUARY 20, 1971-- DECIDED MAY 3, 1971 


APPELLEE, WHO HAD ADVERTISED IN THE NEWSPAPER THE SALE TO PERSONS
OVER 21 YEARS OF AGE OF A BOOKLET ENTITLED THE TRUE FACTS ABOUT
IMPORTED PORNOGRAPHY, WAS INDICTED FOR MAILING COPIES OF THE BOOKLET IN
VIOLATION OF 18 U.S.C. 1461, WHICH PROHIBITS THE KNOWING USE OF THE
MAILS FOR THE DELIVERY OF OBSCENE MATTER.  APPELLEE MOVED TO DISMISS
THE INDICTMENT, CONTENDING THAT THE STATUTE WAS UNCONSTITUTIONAL. 
ASSUMING, ARGUENDO, THAT THE BOOKLETS WERE OBSCENE, THE TRIAL JUDGE
GRANTED THE MOTION TO DISMISS ON THE GROUND THAT APPELLEE MADE A
CONSTITUTIONALLY PROTECTED DELIVERY AND THAT SEC. 1461 WAS
UNCONSTITUTIONAL AS APPLIED TO HIM.  HELD:  SECTION 1461 IS NOT
UNCONSTITUTIONAL AS APPLIED TO THE DISTRIBUTION OF OBSCENE MATERIALS TO
WILLING RECIPIENTS WHO STATE THAT THEY ARE ADULTS.  ROTH V. UNITED
STATES, 354 U.S. 476.  THE DECISION IN STANLEY V. GEORGIA, 394 U.S.
557, HOLDING THAT A STATE'S POWER TO REGULATE OBSCENITY DOES NOT EXTEND
TO MERE POSSESSION BY AN INDIVIDUAL IN THE PRIVACY OF HIS OWN HOME, DID
NOT DISTURB ROTH, SUPRA.  PP. 353-356. 

REVERSED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND HARLAN, J., FILED A CONCURRING OPINION, POST, P. 357. 
MARSHALL, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P.
360.  BLACK, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, J.,
JOINED, POST, P. 379. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE DELIVERY OF OBSCENE MATTER.  /1/  THE ISSUE PRESENTED BY THE
JURISDICTIONAL STATEMENT IN THIS CASE IS WHETHER SEC. 1461 IS
CONSTITUTIONAL AS APPLIED TO THE DISTRIBUTION OF OBSCENE MATERIALS TO
WILLING RECIPIENTS WHO STATE THAT THEY ARE ADULTS.  THE DISTRICT COURT
HELD THAT IT WAS NOT.  /2/  WE DISAGREE AND REVERSE THE JUDGMENT. 

        I 

ON APRIL 15, 1970, THE APPELLEE, NORMAN REIDEL, WAS INDICTED ON
THREE COUNTS, EACH COUNT CHARGING HIM WITH HAVING MAILED A SINGLE COPY
OF AN ILLUSTRATED BOOKLET ENTITLED THE TRUE FACTS ABOUT IMPORTED
PORNOGRAPHY.  ONE OF THE COPIES HAD BEEN MAILED TO A POSTAL INSPECTOR
STIPULATED TO BE OVER THE AGE OF 21, WHO HAD RESPONDED TO A NEWSPAPER
ADVERTISEMENT.  /3/  THE OTHER TWO COPIES HAD BEEN SEIZED DURING A
SEARCH OF APPELLEE'S BUSINESS PREMISES; BOTH OF THEM HAD BEEN DEPOSITED
IN THE MAIL BY REIDEL BUT HAD BEEN RETURNED TO HIM IN THEIR ORIGINAL
MAILING ENVELOPES BEARING THE MARK "UNDELIVERED."  AS TO THESE TWO
BOOKLETS, THE GOVERNMENT CONCEDED THAT IT HAD NO EVIDENCE AS TO THE
IDENTITY OR AGE OF THE ADDRESSEES OR AS TO THEIR WILLINGNESS TO RECEIVE
THE BOOKLETS.  NOR DOES THE RECORD INDICATE WHY THE BOOKLETS WERE
RETURNED UNDELIVERED. 

REIDEL MOVED IN THE DISTRICT COURT BEFORE TRIAL TO DISMISS THE
INDICTMENT, CONTENDING, AMONG OTHER THINGS, THAT SEC. 1461 WAS
UNCONSTITUTIONAL.  ASSUMING FOR THE PURPOSE OF THE MOTION THAT THE
BOOKLETS WERE OBSCENE, THE TRIAL JUDGE GRANTED THE MOTION TO DISMISS ON
THE GROUND THAT REIDEL HAD MADE A CONSTITUTIONALLY PROTECTED DELIVERY
AND HENCE THAT SEC. 1461 WAS UNCONSTITUTIONAL AS APPLIED TO HIM.  THE
GOVERNMENT'S DIRECT APPEAL IS HERE UNDER 18 U.S.C. 3731. 

        II 

IN ROTH V. UNITED STATES, 354 U.S. 476 (1957), ROTH WAS CONVICTED
UNDER SEC. 1461 FOR MAILING OBSCENE CIRCULARS AND ADVERTISING.  /4/
THE COURT AFFIRMED THE CONVICTION, HOLDING THAT "OBSCENITY IS NOT
WITHIN THE AREA OF CONSTITUTIONALLY PROTECTED SPEECH OR PRESS," ID., AT
485, AND THAT SEC. 1461, "APPLIED ACCORDING TO THE PROPER STANDARD FOR
JUDGING OBSCENITY, DOES) NOT OFFEND CONSTITUTIONAL SAFEGUARDS AGAINST
CONVICTIONS BASED UPON PROTECTED MATERIAL, OR FAIL TO GIVE MEN IN
ACTING ADEQUATE NOTICE OF WHAT IS PROHIBITED."  ID., AT 492.  ROTH HAS
NOT BEEN OVERRULED.  IT REMAINS THE LAW IN THIS COURT AND GOVERNS THIS
CASE.  REIDEL, LIKE ROTH, WAS CHARGED WITH USING THE MAILS FOR THE
DISTRIBUTION OF OBSCENE MATERIAL.  HIS CONVICTION, IF IT OCCURS AND THE
MATERIALS ARE FOUND IN FACT TO BE OBSCENE, WOULD BE NO MORE VULNERABLE
THAN WAS ROTH'S. 

STANLEY V. GEORGIA, 394 U.S. 557 (1969), COMPELS NO DIFFERENT
RESULT.  THERE, PORNOGRAPHIC FILMS WERE FOUND IN STANLEY'S HOME AND HE
WAS CONVICTED UNDER GEORGIA STATUTES FOR POSSESSING OBSCENE MATERIAL. 
THIS COURT REVERSED THE CONVICTION, HOLDING THAT THE MERE PRIVATE
POSSESSION OF OBSCENE MATTER CANNOT CONSTITUTIONALLY BE MADE A CRIME. 
BUT IT NEITHER OVERRULED NOR DISTURBED THE HOLDING IN ROTH.  INDEED, IN
THE COURT'S VIEW, THE CONSTITUTIONALITY OF PROSCRIBING PRIVATE
POSSESSION OF OBSCENITY WAS A MATTER OF FIRST IMPRESSION IN THIS COURT,
A QUESTION NEITHER INVOLVED NOR DECIDED IN ROTH.  THE COURT MADE ITS
POINT EXPRESSLY:  "ROTH AND THE CASES FOLLOWING THAT DECISION ARE NOT
IMPAIRED BY TODAY'S HOLDING.  AS WE HAVE SAID, THE STATES RETAIN BROAD
POWER TO REGULATE OBSCENITY; THAT POWER SIMPLY DOES NOT EXTEND TO MERE
POSSESSION BY THE INDIVIDUAL IN THE PRIVACY OF HIS OWN HOME."  ID., AT
568.  NOTHING IN STANLEY QUESTIONED THE VALIDITY OF ROTH INSOFAR AS THE
DISTRIBUTION OF OBSCENE MATERIAL WAS CONCERNED.  CLEARLY THE COURT HAD
NO THOUGHT OF QUESTIONING THE VALIDITY OF SEC. 1461 AS APPLIED TO THOSE
WHO, LIKE REIDEL, ARE ROUTINELY DISSEMINATING OBSCENITY THROUGH THE
MAILS AND WHO HAVE NO CLAIM, AND COULD MAKE NONE, ABOUT UNWANTED
GOVERNMENTAL INTRUSIONS INTO THE PRIVACY OF THEIR HOME.  THE COURT
CONSIDERED THIS SUFFICIENTLY CLEAR TO WARRANT SUMMARY AFFIRMANCE OF THE
JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF GEORGIA REJECTING CLAIMS THAT UNDER STANLEY V. GEORGIA, GEORGIA'S
OBSCENITY STATUTE COULD NOT BE APPLIED TO BOOK SELLERS.  GABLE V.
JENKINS, 397 U.S. 592 (1970). 

THE DISTRICT COURT IGNORED BOTH ROTH AND THE EXPRESS LIMITATIONS ON
THE REACH OF THE STANLEY DECISION.  RELYING ON THE STATEMENT IN STANLEY
THAT "THE CONSTITUTION PROTECTS THE RIGHT TO RECEIVE INFORMATION AND
IDEAS . . . REGARDLESS OF THEIR SOCIAL WORTH," 394 U.S.,AT 564, THE
TRIAL JUDGE REASONED THAT "IF A PERSON HAS THE RIGHT TO RECEIVE AND
POSSESS THIS MATERIAL, THEN SOMEONE MUST HAVE THE RIGHT TO DELIVER IT
TO HIM."  HE CONCLUDED THAT SEC. 1461 COULD NOT BE VALIDLY APPLIED
"WHERE OBSCENE MATERIAL IS NOT DIRECTED AT CHILDREN, OR IT IS NOT
DIRECTED AT AN UNWILLING PUBLIC, WHERE THE MATERIAL SUCH AS IN THIS
CASE IS SOLICITED BY ADULTS.  . . ." 

THE DISTRICT COURT GAVE STANLEY TOO WIDE A SWEEP.  TO EXTRAPOLATE
FROM STANLEY'S RIGHT TO HAVE AND PERUSE OBSCENE MATERIAL IN THE PRIVACY
OF HIS OWN HOME A FIRST AMENDMENT RIGHT IN REIDEL TO SELL IT TO HIM
WOULD EFFECTIVELY SCUTTLE ROTH, THE PRECISE RESULT THAT THE STANLEY
OPINION ABJURED.  WHATEVER THE SCOPE OF THE "RIGHT TO RECEIVE" REFERRED
TO IN STANLEY, IT IS NOT SO BROAD AS TO IMMUNIZE THE DEALINGS IN
OBSCENITY IN WHICH REIDEL ENGAGED HERE-- DEALINGS THAT ROTH HELD
UNPROTECTED BY THE FIRST AMENDMENT. 

THE RIGHT STANLEY ASSERTED WAS "THE RIGHT TO READ OR OBSERVE WHAT HE
PLEASES-- THE RIGHT TO SATISFY HIS INTELLECTUAL AND EMOTIONAL NEEDS IN
THE PRIVACY OF HIS OWN HOME."  394 U.S.,AT 565.  THE COURT'S RESPONSE
WAS THAT "A STATE HAS NO BUSINESS TELLING A MAN, SITTING ALONE IN HIS
OWN HOUSE, WHAT BOOKS HE MAY READ OR WHAT FILMS HE MAY WATCH.  OUR
WHOLE CONSTITUTIONAL HERITAGE REBELS AT THE THOUGHT OF GIVING
GOVERNMENT THE POWER TO CONTROL MEN'S MINDS."  IBID.  THE FOCUS OF THIS
LANGUAGE WAS ON FREEDOM OF MIND AND THOUGHT AND ON THE PRIVACY OF ONE'S
HOME.  IT DOES NOT REQUIRE THAT WE FASHION OR RECOGNIZE A
CONSTITUTIONAL RIGHT IN PEOPLE LIKE REIDEL TO DISTRIBUTE OR SELL
OBSCENE MATERIALS.  THE PERSONAL CONSTITUTIONAL RIGHTS OF THOSE LIKE
STANLEY TO POSSESS AND READ OBSCENITY IN THEIR HOMES AND THEIR FREEDOM
OF MIND AND THOUGHT DO NOT DEPEND ON WHETHER THE MATERIALS ARE OBSCENE
OR WHETHER OBSCENITY IS CONSTITUTIONALLY PROTECTED.  THEIR RIGHTS TO
HAVE AND VIEW THAT MATERIAL IN PRIVATE ARE INDEPENDENTLY SAVED BY THE
CONSTITUTION. 

REIDEL IS IN A WHOLLY DIFFERENT POSITION.  HE HAS NO COMPLAINTS
ABOUT GOVERNMENTAL VIOLATIONS OF HIS PRIVATE THOUGHTS OR FANTASIES, BUT
STANDS SQUARELY ON A CLAIMED FIRST AMENDMENT RIGHT TO DO BUSINESS IN
OBSCENITY AND USE THE MAILS IN THE PROCESS.  BUT ROTH HAS SQUARELY
PLACED OBSCENITY AND ITS DISTRIBUTION OUTSIDE THE REACH OF THE FIRST
AMENDMENT AND THEY REMAIN THERE TODAY.  STANLEY DID NOT OVERRULE ROTH
AND WE DECLINE TO DO SO NOW. 

        III 

A POSTSCRIPT IS APPROPRIATE.  ROTH AND LIKE CASES HAVE INTERPRETED
THE FIRST AMENDMENT NOT TO INSULATE OBSCENITY FROM STATUTORY
REGULATION.  BUT THE AMENDMENT ITSELF NEITHER PROSCRIBES DEALINGS IN
OBSCENITY NOR DIRECTS OR SUGGESTS LEGISLATIVE OVERSIGHT IN THIS AREA. 
THE RELEVANT CONSTITUTIONAL ISSUES HAVE ARISEN IN THE COURTS ONLY
BECAUSE LAWMAKERS HAVING THE EXCLUSIVE LEGISLATIVE POWER HAVE
CONSISTENTLY INSISTED ON MAKING THE DISTRIBUTION OF OBSCENITY A CRIME
OR OTHERWISE REGULATING SUCH MATERIALS AND BECAUSE THE LAWS THEY PASS
ARE CHALLENGED AS UNCONSTITUTIONAL INVASIONS OF FREE SPEECH AND PRESS. 

IT IS URGED THAT THERE IS DEVELOPING SENTIMENT THAT ADULTS SHOULD
HAVE COMPLETE FREEDOM TO PRODUCE, DEAL IN, POSSESS, AND CONSUME
WHATEVER COMMUNICATIVE MATERIALS MAY APPEAL TO THEM AND THAT THE LAW'S
INVOLVEMENT WITH OBSCENITY SHOULD BE LIMITED TO THOSE SITUATIONS WHERE
CHILDREN ARE INVOLVED OR WHERE IT IS NECESSARY TO PREVENT IMPOSITION ON
UNWILLING RECIPIENTS OF WHATEVER AGE.  THE CONCEPTS INVOLVED ARE SAID
TO BE SO ELUSIVE AND THE LAWS SO INHERENTLY UNENFORCEABLE WITHOUT
EXTRAVAGANT EXPENDITURES OF TIME AND EFFORT BY ENFORCEMENT OFFICERS AND
THE COURTS THAT BASIC REASSESSMENT IS NOT ONLY WISE BUT ESSENTIAL. 
THIS MAY PROVE TO BE THE DESIRABLE AND EVENTUAL LEGISLATIVE COURSE. 
BUT IF IT IS, THE TASK OF RESTRUCTURING THE OBSCENITY LAWS LIES WITH
THOSE WHO PASS, REPEAL, AND AMEND STATUTES AND ORDINANCES.  ROTH AND
LIKE CASES POSE NO OBSTACLE TO SUCH DEVELOPMENTS. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED. 

              SO ORDERED. 

(FOR DISSENTING OPINION OF MR. JUSTICE BLACK, SEE POST, P. 379.) 

/1/  THE STATUTE IN PERTINENT PART PROVIDES: 

"EVERY OBSCENE, LEWD, LASCIVIOUS, INDECENT, FILTHY OR VILE ARTICLE,
MATTER, THING, DEVICE, OR SUBSTANCE; AND--

        .          .        .          . 

"EVERY WRITTEN OR PRINTED CARD, LETTER, CIRCULAR, BOOK, PAMPHLET,
ADVERTISEMENT, OR NOTICE OF ANY KIND GIVING INFORMATION, DIRECTLY OR
INDIRECTLY, WHERE, OR HOW, OR FROM WHOM, OR BY WHAT MEANS ANY OF SUCH
MENTIONED MATTERS, ARTICLES, OR THINGS MAY BE OBTAINED OR MADE, OR
WHERE OR BY WHOM ANY ACT OR OPERATION OF ANY KIND FOR THE PROCURING OR
PRODUCING OF ABORTION WILL BE DONE OR PERFORMED, OR HOW OR BY WHAT
MEANS CONCEPTION MAY BE PREVENTED OR ABORTION PRODUCED, WHETHER SEALED
OR UNSEALED.  . . .

        .          .          .      . 

"IS DECLARED TO BE NONMAILABLE MATTER AND SHALL NOT BE CONVEYED IN
THE MAILS OR DELIVERED FROM ANY POST OFFICE OR BY ANY LETTER CARRIER. 

"WHOEVER KNOWINGLY USES THE MAILS FOR THE MAILING, CARRIAGE IN THE
MAILS, OR DELIVERY OF ANYTHING DECLARED BY THIS SECTION TO BE
NONMAILABLE, OR KNOWINGLY CAUSES TO BE DELIVERED BY MAIL ACCORDING TO
THE DIRECTION THEREON, OR AT THE PLACE AT WHICH IT IS DIRECTED TO BE
DELIVERED BY THE PERSON TO WHOM IT IS ADDRESSED, OR KNOWINGLY TAKES ANY
SUCH THING FROM THE MAILS FOR THE PURPOSE OF CIRCULATING OR DISPOSING
THEREOF, OR OF AIDING IN THE CIRCULATION OR DISPOSITION THEREOF, SHALL
BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE YEARS,
OR BOTH, FOR THE FIRST SUCH OFFENSE, AND SHALL BE FINED NOT MORE THAN
$10,000 OR IMPRISONED NOT MORE THAN TEN YEARS, OR BOTH, FOR EACH SUCH
OFFENSE THEREAFTER." 

/2/  THE TRIAL JUDGE DID NOT ISSUE A WRITTEN OPINION BUT RULED
ORALLY FROM THE BENCH. 

/3/  THE ADVERTISEMENT WAS AS FOLLOWS: 

"IMPORTED PORNOGRAPHY-- LEARN THE TRUE FACTS BEFORE SENDING MONEY
ABROAD.  SEND $1.00 FOR OUR FULLY ILLUSTRATED BOOKLET.  YOU MUST BE 21
YEARS OF AGE AND SO STATE.  NORMAX PRESS, P.O. BOX 989, FONTANA,
CALIFORNIA, 92335." 

/4/  ROTH V. UNITED STATES WAS HEARD AND DECIDED WITH ALBERTS V.
CALIFORNIA, IN WHICH THE COURT UPHELD THE OBSCENITY PROVISIONS OF THE
CALIFORNIA PENAL CODE. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE OPINION OF THE COURT WHICH, AS I UNDERSTAND IT, HOLDS
THAT THE FEDERAL GOVERNMENT MAY PROHIBIT THE USE OF THE MAILS FOR
COMMERCIAL DISTRIBUTION OF MATERIALS PROPERLY CLASSIFIABLE AS OBSCENE. 
/0/  THE COURT TODAY CORRECTLY REJECTS THE CONTENTION THAT THE
RECOGNITION IN STANLEY V. GEORGIA, 394 U.S. 557 (1969), THAT PRIVATE
POSSESSION OF OBSCENE MATERIALS IS CONSTITUTIONALLY PRIVILEGED UNDER
THE FIRST AMENDMENT CARRIES WITH IT A "RIGHT TO RECEIVE" SUCH MATERIALS
THROUGH ANY MODES OF DISTRIBUTION AS LONG AS ADEQUATE PRECAUTIONS ARE
TAKEN TO PREVENT THE DISSEMINATION TO UNCONSENTING ADULTS AND
CHILDREN.  APPELLEE HERE CONTENDS, IN EFFECT, THAT THE STANLEY "RIGHT
TO RECEIVE"  LANGUAGE, 394 U.S.,AT 564-565, CONSTITUTED RECOGNITION
THAT OBSCENITY WAS CONSTITUTIONALLY PROTECTED FOR ITS CONTENT. 
GOVERNMENTAL EFFORTS TO PROSCRIBE OBSCENITY AS SUCH WOULD, ON THIS
INTERPRETATION, NOT BE CONSTITUTIONAL; RATHER, THE POWER OF BOTH THE
STATE AND FEDERAL GOVERNMENT WOULD NOW BE RESTRICTED TO THE REGULATION
OF THE CONSTITUTIONALLY PROTECTED RIGHT TO ENGAGE IN THIS CATEGORY OF
"SPEECH"  IN LIGHT OF OTHERWISE PERMISSIBLE STATE INTERESTS, SUCH AS
THE PROTECTION OF PRIVACY OR THE PROTECTION OF CHILDREN. 

THAT INTERPRETATION OF STANLEY, HOWEVER, IS FLATLY INCONSISTENT WITH
THE SQUARE HOLDING OF ROTH V. UNITED STATES, 354 U.S. 476, 485 (1957): 

"WE HOLD THAT OBSCENITY IS NOT WITHIN THE AREA OF CONSTITUTIONALLY
PROTECTED SPEECH OR PRESS."  EITHER ROTH MEANS THAT GOVERNMENT MAY
PROSCRIBE OBSCENITY AS SUCH RATHER THAN MERELY REGULATE IT WITH
REFERENCE TO OTHER STATE INTERESTS, OR ROTH MEANS NOTHING AT ALL.  AND
STANLEY, FAR FROM OVERRULING ROTH, DID NOT EVEN PURPORT TO LIMIT THAT
CASE TO ITS FACTS: 

     "WE HOLD THAT THE FIRST AND FOURTEENTH AMENDMENTS PROHIBIT

  MAKING MERE PRIVATE POSSESSION OF OBSCENE MATERIAL A CRIME.  ROTH

  AND THE CASES FOLLOWING THAT DECISION ARE NOT IMPAIRED BY TODAY'S

  HOLDING.  . . ."  394 U.S.,AT 568. 

IN VIEW OF STANLEY'S EXPLICIT REAFFIRMANCE OF ROTH, I DO NOT READ
THE FORMER CASE AS LIMITING GOVERNMENTAL POWER TO DEAL WITH OBSCENITY
TO MODES OF REGULATION GEARED TO PUBLIC INTERESTS TO BE JUDICIALLY
ASSESSED AS LEGITIMATE OR ILLEGITIMATE IN LIGHT OF THE NATURE OF
OBSCENITY AS A SPECIAL CATEGORY OF CONSTITUTIONALLY PROTECTED SPEECH. 
RATHER, I UNDERSTAND STANLEY TO REST IN RELEVANT PART ON THE
PROPOSITION THAT THE POWER WHICH ROTH RECOGNIZED IN BOTH STATE AND
FEDERAL GOVERNMENTS TO PROSCRIBE OBSCENITY AS CONSTITUTIONALLY
UNPROTECTED CANNOT BE EXERCISED TO THE EXCLUSION OF OTHER
CONSTITUTIONALLY PROTECTED INTERESTS OF THE INDIVIDUAL.  THAT TREATMENT
OF STANLEY IS CONSISTENT WITH THE COURT'S APPROACH TO THE PROBLEM OF
PRIOR RESTRAINTS IN THE OBSCENITY AREA; IF GOVERNMENT CHOOSES A SYSTEM
OF PRIOR RESTRAINTS AS AN AID TO ITS GOAL OF PROSCRIBING OBSCENITY, THE
SYSTEM MUST BE DESIGNED TO MINIMIZE IMPACT ON SPEECH WHICH IS
CONSTITUTIONALLY PROTECTED.  BLOUNT V. RIZZI, 400 U.S. 410, 416 (1971);
MARCUS V. SEARCH WARRANT, 367 U.S. 717, 731 (1961).  SEE FREEDMAN V.
MARYLAND, 380 U.S. 51 (1965).     THE ANALOGOUS CONSTITUTIONALLY
PROTECTED INTEREST IN THE STANLEY SITUATION WHICH RESTRICTS
GOVERNMENTAL EFFORTS TO PROSCRIBE OBSCENITY IS THE FIRST AMENDMENT
RIGHT OF THE INDIVIDUAL TO BE FREE FROM GOVERNMENTAL PROGRAMS OF
THOUGHT CONTROL, HOWEVER SUCH PROGRAMS MIGHT BE JUSTIFIED IN TERMS OF
PERMISSIBLE STATE OBJECTIVES.  FOR ME, AT LEAST, STANLEY RESTS ON THE
PROPOSITION THAT FREEDOM FROM GOVERNMENTAL MANIPULATION OF THE CONTENT
OF A MAN'S MIND NECESSITATES A BAN ON PUNISHMENT FOR THE MERE
POSSESSION OF THE MEMORABILIA OF A MAN'S THOUGHTS AND DREAMS, UNLESS
THAT PUNISHMENT CAN BE RELATED TO A STATE INTEREST OF A STRONGER NATURE
THAN THE SIMPLE DESIRE TO PROSCRIBE OBSCENITY AS SUCH.  IN OTHER WORDS,
THE "RIGHT TO RECEIVE" RECOGNIZED IN STANLEY IS NOT A RIGHT TO THE
EXISTENCE OF MODES OF DISTRIBUTION OF OBSCENITY WHICH THE STATE COULD
DESTROY WITHOUT SERIOUS RISK OF INFRINGING ON THE PRIVACY OF A MAN'S
THOUGHTS; RATHER, IT IS A RIGHT TO A PROTECTIVE ZONE ENSURING THE
FREEDOM OF A MAN'S INNER LIFE, BE IT RICH OR SORDID.  CF. WEST VIRGINIA
STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 642 (1943). 

/0/  OF COURSE, THE OBSCENITY VEL NON OF THE MATERIALS IS NOT
PRESENTED AT THIS JUNCTURE OF THE CASE. 

MR. JUSTICE MARSHALL, DISSENTING IN NO. 133, POST, P. 363, AND
CONCURRING IN THE JUDGMENT IN NO. 534. 

ONLY TWO YEARS AGO IN STANLEY V. GEORGIA, 394 U.S. 557 (1969), THE
COURT FULLY CANVASSED THE RANGE OF STATE INTERESTS THAT MIGHT POSSIBLY
JUSTIFY REGULATION OF OBSCENITY.  THAT DECISION REFUSED TO LEGITIMIZE
THE ARGUMENT THAT OBSCENE MATERIALS COULD BE OUTLAWED BECAUSE THE
MATERIALS MIGHT SOMEHOW ENCOURAGE ANTISOCIAL CONDUCT, AND UNEQUIVOCALLY
REJECTED THE OUTLANDISH NOTION THAT THE STATE MAY POLICE THE THOUGHTS
OF ITS CITIZENERY.  THE COURT DID, HOWEVER, APPROVE THE VALIDITY OF
REGULATORY ACTION TAKEN TO PROTECT CHILDREN AND UNWILLING ADULTS FROM
EXPOSURE TO MATERIALS DEEMED TO BE OBSCENE.  THE NEED FOR SUCH
PROTECTION OF COURSE ARISES WHEN OBSCENITY IS DISTRIBUTED OR DISPLAYED
PUBLICLY; AND THE COURT REAFFIRMED THE PRINCIPLES OF ROTH V. UNITED
STATES, 354 U.S. 476 (1957), REDRUP V. NEW YORK, 386 U.S. 767 (1967),
AND OTHER DECISIONS THAT INVOLVED THE COMMERCIAL DISTRIBUTION OF
OBSCENE MATERIALS.  THUS, STANLEY TURNED ON AN ASSESSMENT OF WHICH
STATE INTERESTS MAY LEGITIMATELY UNDERPIN GOVERNMENTAL ACTION, AND IT
IS DISINGENUOUS TO CONTEND THAT STANLEY'S CONVICTION WAS REVERSED
BECAUSE HIS HOME, RATHER THAN HIS PERSON OR LUGGAGE, WAS THE LOCUS OF A
SEARCH. 

I WOULD EMPLOY A SIMILAR ADJUDICATIVE APPROACH IN DECIDING THE CASES
PRESENTLY BEFORE THE COURT.  IN NO. 133 THE MATERIAL IN QUESTION WAS
SEIZED FROM CLAIMANT'S LUGGAGE UPON HIS RETURN TO THE UNITED STATES
FROM A EUROPEAN TRIP.  ALTHOUGH CLAIMANT STIPULATED THAT HE INTENDED TO
USE SOME OF THE PHOTOGRAPHS TO ILLUSTRATE A BOOK WHICH WOULD BE LATER
DISTRIBUTED COMMERCIALLY, THE SEIZED ITEMS WERE THEN IN HIS PURELY
PRIVATE POSSESSION AND THREATENED NEITHER CHILDREN NOR ANYONE ELSE.  IN
MY VIEW, THE GOVERNMENT HAS AMPLE OPPORTUNITY TO PROTECT ITS VALID
INTERESTS IF AND WHEN COMMERCIAL DISTRIBUTION SHOULD TAKE PLACE.  SINCE
THREATS TO THESE INTERESTS ARISE IN THE CONTEXT OF PUBLIC OR COMMERCIAL
DISTRIBUTION, THE MAGNITUDE OF THE THREATS CAN BEST BE ASSESSED WHEN
DISTRIBUTION ACTUALLY OCCURS; AND IT IS ALWAYS POSSIBLE THAT CLAIMANT
MIGHT INCLUDE ONLY SOME OF THE PHOTOGRAPHS IN THE FINAL COMMERCIAL
PRODUCT OR MIGHT LATER ABANDON HIS INTENTION TO USE ANY OF THEM.  /1/
I FIND PARTICULARLY TROUBLING THE PLURALITY'S SUGGESTION THAT THERE IS
NO NEED TO SCRUTINIZE THE GOVERNMENT'S BEHAVIOR BECAUSE A "BORDER
SEARCH" IS INVOLVED.  WHILE NECESSITY MAY DICTATE SOME DIMINUTION OF
TRADITIONAL CONSTITUTIONAL SAFEGUARDS AT OUR NATION'S BORDERS, I WHOULD
HAVE THOUGHT THAT ANY SUCH REDUCTION WOULD HEIGHTEN THE NEED JEALOUSLY
TO PROTECT THOSE LIBERTIES THAT REMAIN RATHER THAN JUSTIFY THE
SUSPENSION OF ANY AND ALL SAFEGUARDS. 

NO. 534 PRESENTS A DIFFERENT SITUATION IN WHICH ALLEGEDLY OBSCENE
MATERIALS WERE DISTRIBUTED THROUGH THE MAILS.  PLAINLY, ANY SUCH MAIL
ORDER DISTRIBUTION POSES THE DANGER THAT OBSCENITY WILL BE SENT TO
CHILDREN, AND ALTHOUGH THE APPELLEE IN NO. 534 INDICATED HIS INTENT TO
SELL ONLY TO ADULTS WHO REQUESTED HIS WARES, THE SOLE SAFEGUARD
DESIGNED TO PREVENT THE RECEIPT OF HIS MERCHANDISE BY MINORS WAS HIS
REQUIREMENT THAT BUYERS DECLARE THEIR AGE.  WHILE THE RECORD DOES NOT
REVEAL THAT ANY CHILDREN ACTUALLY RECEIVED APPELLEE'S MATERIALS, I
BELIEVE THAT DISTRIBUTORS OF PURPORTEDLY OBSCENE MERCHANDISE MAY BE
REQUIRED TO TAKE MORE STRINGENT STEPS TO GUARD AGAINST POSSIBLE RECEIPT
BY MINORS.  THIS CASE COMES TO US WITHOUT THE BENEFIT OF A FULL TRIAL,
AND, ON THIS SPARSE RECORD, I AM NOT PREPARED TO FIND THAT APPELLEE'S
CONDUCT WAS NOT WITHIN A CONSTITUTIONALLY VALID CONSTRUCTION OF THE
FEDERAL STATUTE. 

ACCORDINGLY, I DISSENT IN NO. 133 AND CONCUR IN THE JUDGMENT IN NO.
534. 

/1/  MOREOVER, THE ITEMS SEIZED IN THIS CASE WERE ONLY A COMPONENT
OF A PRODUCT WHICH MIGHT ULTIMATELY BE DISTRIBUTED, AND VIEWING THEM IN
ISOLATION IS INCONSISTENT WITH THE PRINCIPLE THAT DETERMINATIONS OF
OBSCENITY SHOULD FOCUS ON AN ENTIRE WORK, SEE, E.G., ROTH V. UNITED
STATES, 354 U.S. 476, 489 (1957). 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERALY WILSON AND ROGER
A. PAULEY. 

SAM ROSENWEIN ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WAS STANLEY FLEISHMAN. 
..END :



















UNITED STATES V. THIRTY-SEVEN PHOTOGRAPHS, 402 U.S. 363 


       UNITED STATES V. THIRTY-SEVEN (37) PHOTOGRAPHS (LUROS,

           CLAIMANT)

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

           DISTRICT OF CALIFORNIA

        NO. 133.  ARGUED JANUARY 20, 1971-- DECIDED MAY 3, 1971 


CUSTOMS AGENTS SEIZED AS OBSCENE PHOTOGRAPHS POSSESSED BY CLAIMANT
LUROS WHEN HE RETURNED TO THIS COUNTRY FROM EUROPE ON OCTOBER 24,
1969.  SECTION 1305(A) OF 19 U.S.C., PURSUANT TO WHICH THE AGENTS
ACTED, PROHIBITS THE IMPORTATION OF OBSCENE MATERIAL, PROVIDES FOR ITS
SEIZURE AT ANY CUSTOMS OFFICE AND RETENTION PENDING THE JUDGMENT OF THE
DISTRICT COURT, AND SPECIFIES THAT THE COLLECTOR OF CUSTOMS GIVE
INFORMATION OF THE SEIZURE TO THE DISTRICT ATTORNEY, WHO SHALL
INSTITUTE FORFEITURE PROCEEDINGS.  THE AGENTS REFERRED THE MATTER TO
THE UNITED STATES ATTORNEY, WHO BROUGHT FORFEITURE PROCEEDINGS ON
NOVEMBER 6.  LUROS' ANSWER DENIED THAT THE PHOTOGRAPHS WERE OBSCENE AND
COUNTERCLAIMED THAT SECT.  1305(A) WAS UNCONSTITUTIONAL.  HE ASKED FOR
A THREE-JUDGE COURT, WHICH ON NOVEMBER 20 WAS ORDERED TO VE CONVENED. 
FOLLOWING A HEARING ON JANUARY 9, 1970, THE COURT ON JANUARY 27 HELD
SEC. 1305(A) UNCONSTITUTIONAL ON THE GROUNDS THAT THE STATUTE (1)
FAILED TO MEET THE PROCEDURAL REQUIREMENTS OF FREEDMAN V. MARYLAND, 380
U.S. 51, AND (2) WAS OVERLY BROAD AS INCLUDING WITHIN ITS BAN OBSCENE
MATERIAL FOR PRIVATE USE, MAKING IT INVALID UNDER STANLEY V. GEORGIA,
394 U.S. 557.  HELD:  THE JUDGMENT IS REVERSED AND THE CASE REMANDED. 
PP. 367-379. 

309 F.SUPP.  36, REVERSED AND REMANDED. 

MR. JUSTICE WHITE, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE HARLAN,
MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, AND MR. JUSTICE BLACKMUN,
CONCLUDED IN PART I THAT SEC. 1305(A) CAN BE CONSTRUED AS REQUIRING
ADMINISTRATIVE AND JUDICIAL ACTION WITHIN SPECIFIED TIME LIMITS THAT
WILL AVOID THE CONSTITUTIONAL ISSUE THAT WOULD OTHERWISE BE PRESENTED
BY FREEDMAN, SUPRA.  PP. 367-375. 

(A) IN FREEDMAN, UNLIKE THE SITUATION HERE, THE STATUTE FAILING TO
SPECIFY TIME LIMITS WAS ENACTED PURSUANT TO STATE AUTHORITY AND COULD
NOT BE GIVEN AN AUTHORITATIVE CONSTRUCTION BY THIS COURT TO AVOID THE
CONSTITUTIONAL ISSUE.  P. 369. 

(B) THE READING INTO SEC. 1305(A) OF THE TIME LIMITS REQUIRED BY
FREEDMAN, COMPORTS WITH THE LEGISLATIVE PURPOSE OF THE STATUTE AND
FURTHERS THE POLICY OF STATUTORY CONSTRUCTION TO AVOID A CONSTITUTIONAL
ISSUE.  PP. 370-373. 

(C) SECTION 1305(A) MAY BE CONSTITUTIONALLY APPLIED AS CONSTRUED TO
REQUIRE INTERVALS OF NO LONGER THAN 14 DAYS FROM SEIZURE OF THE GOODS
TO THE INSTITUTION OF JUDICIAL PROCEEDINGS FOR THEIR FORFEITURE AND NO
LONGER THAN 60 DAYS FROM THE FILING OF THE ACTION TO FINAL DECISION IN
THE DISTRICT COURT (ABSENT CLAIMANT-INDUCED DELAYS).  PP. 373-374. 

MR. JUSTICE WHITE, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE BRENNAN,
AND MR. JUSTICE BLACKMUN, CONCLUDED IN PART II THAT CONGRESS'
CONSTITUTIONAL POWER TO REMOVE OBSCENE MATERIALS FROM THE CHANNELS OF
COMMERCE IS UNIMPAIRED BY THIS COURT'S DECISION IN STANLEY, SUPRA.  CF.
UNITED STATES V. REIDEL, ANTE, P. 351.  PP. 375-377. 

MR. JUSTICE HARLAN CONCLUDED THAT LUROS, WHO STIPULATED WITH THE
GOVERNMENT THAT THE MATERIALS WERE IMPORTED FOR COMMERCIAL PURPOSES,
LACKED STANDING TO CHALLENGE THE STATUTE FOR OVERBREADTH ON THE GROUND
THAT IT APPLIED TO IMPORTATION FOR PRIVATE USE.  P. 378. 

MR. JUSTICE STEWART, WHILE AGREEING THAT THE FIRST AMENDMENT DOES
NOT PREVENT THE BORDER SEIZURE OF OBSCENE MATERIALS IMPORTED FOR
COMMERCIAL DISSEMINATION AND THAT FREEDMAN V. MARYLAND, 380 U.S. 51,
IMPOSES TIME LIMITS FOR INITIATING FORFEITURE PROCEEDINGS AND
COMPLETING THE JUDICIAL OBSCENITY DETERMINATION, WOULD NOT EVEN
INTIMATE THAT THE GOVERNMENT MAY LAWFULLY SEIZE LITERATURE INTENDED FOR
THE IMPORTER'S PURELY PRIVATE USE.  P. 378. 

WHITE, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION
IN WHICH (AS TO PART I) BURGER, C.J., AND HARLAN, BRENNAN, STEWART, AND
BLACKMUN, JJ., JOINED, AND IN WHICH (AS TO PART II), BURGER, C.J., AND
BRENNAN AND BLACKMUN, JJ., JOINED.  HARLAN, J., POST, P. 377, AND
STEWART, J., POST, P. 378, FILED OPINIONS CONCURRING IN THE JUDGMENT
AND CONCURRING IN PART I OF WHITE, J.'S OPINION.  BLACK, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P. 379. 
MARSHALL, J., FILED A DISSENTING OPINION, ANTE, P. 360. 

MR. JUSTICE WHITE ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, AND MR. JUSTICE
BLACKMUN JOIN.  /0/ 

WHEN MILTON LUROS RETURNED TO THE UNITED STATES FROM EUROPE ON
OCTOBER 24, 1969, HE BROUGHT WITH HIM IN HIS LUGGAGE THE 37 PHOTOGRAPHS
HERE INVOLVED.  UNITED STATES CUSTOMS AGENTS, ACTING PURSUANT TO SEC.
305 OF THE TARIFF ACT OF 1930, AS AMENDED, 46 STAT. 688, 19 U.S.C.
1305(A), /1/  SEIZED THE PHOTOGRAPHS AS OBSCENE.  THEY REFERRED THE
MATTER TO THE UNITED STATES ATTORNEY, WHO ON NOVEMBER 6 INSTITUTED
PROCEEDINGS IN THE UNITED STATES DISTRICT COURT FOR FORFEITURE OF THE
MATERIAL.  LUROS, AS CLAIMANT, ANSWERED, DENYING THE PHOTOGRAPHS WERE
OBSCENE AND SETTING UP A COUNTERCLAIM ALLEGING THE UNCONSTITUTIONALITY
OF SEC. 1305(A) ON ITS FACE AND AS APPLIED TO HIM.  HE DEMANDED THAT A
THREE-JUDGE COURT BE CONVENED TO ISSUE AN INJUNCTION PRAYED FOR IN THE
COUNTERCLAIM.  THE PARTIES STIPULATED A TIME FOR HEARING THE THREE
JUDGE COURT MOTION.  A FORMAL ORDER CONVENING THE COURT WAS ENTERED ON
NOVEMBER 20.  THE PARTIES THEN STIPULATED A BRIEFING SCHEDULE EXPIRING
ON DECEMBER 16.  THE COURT ORDERED A HEARING FOR JANUARY 9, 1970, ALSO
SUGGESTING THE PARTIES STIPULATE FACTS, WHICH THEY DID.  THE
STIPULATION REVEALED, AMONG OTHER THINGS, THAT SOME OR ALL OF THE 37
PHOTOGRAPHS WERE INTENDED TO BE INCORPORATED IN A HARD COVER EDITION OF
THE KAMA SUTRA OF VATSYAYANA, A WIDELY DISTRIBUTED BOOK CANDIDLY
DESCRIBING A LARGE NUMBER OF SEXUAL POSITIONS.  HEARING WAS HELD AS
SCHEDULED ON JANUARY 9, AND ON JANUARY 27 THE THREE-JUDGE COURT FILED
ITS JUDGMENT AND OPINION DECLARING SEC. 1305(A) UNCONSTITUTIONAL AND
ENJOINING ITS ENFORCEMENT AGAINST THE 37 PHOTOGRAPHS, WHICH WERE
ORDERED RETURNED TO LUROS.  309 F.SUPP.  36 (CD CAL. 1970).  THE
JUDGMENT OF INVALIDITY RESTED ON TWO GROUNDS:  FIRST, THAT THE SECTION
FAILED TO COMPLY WITH THE PROCEDURAL REQUIREMENTS OF FREEDMAN V.
MARYLAND, 380 U.S. 51 (1965), AND SECOND, THAT UNDER STANLEY V.
GEORGIA, 394 U.S. 557 (1969), SEC. 1305(A) COULD NOT VALIDLY BE APPLIED
TO THE SEIZED MATERIAL.  WE SHALL DEAL WITH EACH OF THESE GROUNDS
SEPARATELY. 

        I 

IN FREEDMAN V. MARYLAND, SUPRA, WE STRUCK DOWN A STATE SCHEME FOR
ADMINISTRATIVE LICENSING OF MOTION PICTURES, HOLDING "THAT, BECAUSE
ONLY A JUDICIAL DETERMINATION IN AN ADVERSARY PROCEEDING ENSURES THE
NECESSARY SENSITIVITY TO FREEDOM OF EXPRESSION, ONLY A PROCEDURE
REQUIRING A JUDICIAL DETERMINATION SUFFICES TO IMPOSE A VALID FINAL
RESTRAINT."  380 U.S.,AT 58.  TO INSURE THAT A JUDICIAL DETERMINATION
OCCURS PROMPTLY SO THAT ADMINISTRATIVE DELAY DOES NOT IN ITSELF BECOME
A FORM OF CENSORSHIP, WE FURTHER HELD, (1) THERE MUST BE ASSURANCE, "BY
STATUTE OR AUTHORITATIVE JUDICIAL CONSTRUCTION, THAT THE CENSOR WILL,
WITHIN A SPECIFIC BRIEF PERIOD, EITHER ISSUE A LICENSE OR GO TO COURT
TO RESTRAIN SHOWING THE FILM"; (2) "(ANY RESTRAINT IMPOSED IN ADVANCE
OF A FINAL JUDICIAL DETERMINATION ON THE MERITS MUST SIMILARLY BE
LIMITED TO PRESERVATION OF THE STATUS QUO FOR THE SHORTEST FIXED PERIOD
COMPATIBLE WITH SOUND JUDICIAL RESOLUTION"; AND (3) "THE PROCEDURE MUST
ALSO ASSURE A PROMPT FINAL JUDICIAL DECISION" TO MINIMIZE THE IMPACT OF
POSSIBLY ERRONEOUS ADMINISTRATIVE ACTION.  ID., AT 58-59. 

SUBSEQUENTLY, WE INVALIDATED CHICAGO'S MOTION PICTURE CENSORSHIP
ORDINANCE BECAUSE IT PERMITTED AN UNDULY LONG ADMINISTRATIVE PROCEDURE
BEFORE THE INVOCATION OF JUDICIAL ACTION AND ALSO BECAUSE THE
ORDINANCE, ALTHOUGH REQUIRING PROMPT RESORT TO THE COURTS AFTER
ADMINISTRATIVE DECISION AND AN EARLY HEARING, DID NOT ASSURE "A PROMPT
JUDICIAL DECISION OF THE QUESTION OF THE ALLEGED OBSCENITY OF THE
FILM."  TEITEL FILM CORP. V. CUSACK, 390 U.S. 139, 141 (1968).  SO,
TOO, IN BLOUNT V. RIZZI, 400 U.S. 410 (1971), WE HELD UNCONSTITUTIONAL
CERTAIN PROVISIONS OF THE POSTAL LAWS DESIGNED TO CONTROL USE OF THE
MAILS FOR COMMERCE IN OBSCENE MATERIALS.  UNDER THOSE LAWS AN
ADMINISTRATIVE ORDER RESTRICTING USE OF THE MAILS COULD BECOME
EFFECTIVE WITHOUT JUDICIAL APPROVAL, THE BURDEN OF OBTAINING PROMPT
JUDICIAL REVIEW WAS PLACED UPON THE USER OF THE MAILS RATHER THAN THE
GOVERNMENT, AND THE INTERIM JUDICIAL ORDER, WHICH THE GOVERNMENT WAS
PERMITTED, THOUGH NOT REQUIRED, TO OBTAIN PENDING COMPLETION OF
ADMINISTRATIVE ACTION, WAS NOT LIMITED TO PERSERVING THE STATUS QUO FOR
THE SHORTEST FIXED PERIOD COMPATIBLE WITH SOUND JUDICIAL
ADMINISTRATION. 

AS ENACTED BY CONGRESS, SEC. 1305(A) DOES NOT CONTAIN EXPLICIT TIME
LIMITS OF THE SORT REQUIRED BY FREEDMAN, TEITEL, AND BLOUNT.  /2/
THESE CASES DO NOT, HOWEVER, REQUIRE THAT WE PASS UPON THE
CONSTITUTIONALITY OF SEC. 1305(A), FOR IT IS POSSIBLE TO CONSTRUE THE
TRUE THAT WE NOTED IN BLOUNT THAT "IT IS FOR CONGRESS, NOT THIS COURT,
TO REWRITE THE STATUTE," 400 U.S.,AT 419, AND THAT WE SIMILARLY REFUSED
TO REWRITE MARYLAND'S STATUTE AND CHICAGO'S ORDINANCE IN FREEDMAN AND
TEITEL.  ON THE OTHER HAND, WE MUST REMEMBER THAT, "(WHEN THE VALIDITY
OF AN ACT OF THE CONGRESS IS DRAWN IN QUESTION, AND . . . 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 (1932).  ACCORD, E.G., HAYNES V. UNITED STATES,
390 U.S. 85, 92 (1968) (DICTUM); SCHNEIDER V. SMITH, 390 U.S. 17, 27
(1968); UNITED STATES V. RUMELY, 345 U.S. 41, 45 (1953); ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 348 (1936) (BRANDEIS, J.,
CONCURRING).  THIS CARDINAL PRINCIPLE DID NOT GOVERN FREEDMAN, TEITEL,
AND BLOUNT ONLY BECAUSE THE STATUTES THERE INVOLVED COULD NOT BE
CONSTRUED SO AS TO AVOID ALL CONSTITUTIONAL DIFFICULTIES. 

THE OBSTACLE IN FREEDMAN AND TEITEL WAS THAT THE STATUTES WERE
ENACTED PURSUANT TO STATE RATHER THAN FEDERAL AUTHORITY; WHILE FREEDMAN
RECOGNIZED THAT A STATUTE FAILING TO SPECIFY TIME LIMITS COULD BE SAVED
BY JUDICIAL CONSTRUCTION, IT HELD THAT SUCH CONSTRUCTION HAD TO BE
"AUTHORITATIVE," 380 U.S.,AT 59, AND WE LACK JURISDICTION
AUTHORITATIVELY TO CONSTRUE STATE LEGISLATION.  CF. GENERAL TRADING CO.
V. STATE TAX COMM'N, 322 U.S. 335, 337 (1944).  IN BLOUNT, WE WERE
DEALING WITH A FEDERAL STATUTE AND THUS HAD POWER TO GIVE IT AN
AUTHORITATIVE CONSTRUCTION; SALVATION OF THAT STATUTE, HOWEVER, WOULD
HAVE REQUIRED ITS COMPLETE REWRITING IN A MANNER INCONSISTENT WITH THE
EXPRESSED INTENTIONS OF SOME OF ITS AUTHORS.  FOR THE STATUTE AT ISSUE
IN BLOUNT NOT ONLY FAILED TO SPECIFY TIME LIMITS WITHIN WHICH JUDICIAL
PROCEEDINGS MUST BE INSTITUTED AND COMPLETED; IT ALSO FAILED TO GIVE
ANY AUTHORIZATION AT ALL TO THE ADMINISTRATIVE AGENCY, UPON A
DETERMINATION THAT MATERIAL WAS OBSCENE, TO SEEK JUDICIAL REVIEW.  TO
HAVE SAVED THE STATUTE WE WOULD THUS HAVE BEEN REQUIRED TO GIVE SUCH
AUTHORIZATION AND TO CREATE MECHANISMS FOR CARRYING IT INTO EFFECT, AND
WE WOULD HAVE HAD TO DO THIS IN THE FACE OF LEGISLATIVE HISTORY
INDICATING THAT THE POSTMASTER GENERAL, WHEN HE HAD TESTIFIED BEFORE
CONGRESS, HAD EXPRESSLY SOUGHT TO FORESTALL JUDICIAL REVIEW PENDING
COMPLETION OF ADMINISTRATIVE PROCEEDINGS.  SEE 400 U.S.,AT 420 N. 8. 

NO SUCH OBSTACLES CONFRONT US IN CONSTRUING SEC. 1305(A).  IN FACT,
THE READING INTO THE SECTION OF THE TIME LIMITS REQUIRED BY FREEDMAN IS
FULLY CONSISTENT WITH ITS LEGISLATIVE PURPOSE.  WHEN THE STATUTE, WHICH
IN ITS PRESENT FORM DATES BACK TO 1930, WAS FIRST PRESENTED TO THE
SENATE, CONCERN IMMEDIATELY AROSE THAT IT DID NOT PROVIDE FOR
DETERMINATIONS OF OBSCENITY TO BE MADE BY COURTS RATHER THAN
ADMINISTRATIVE OFFICERS AND THAT IT DID NOT REQUIRE THAT JUDICIAL
RULINGS BE OBTAINED PROMPTLY.  IN LANGUAGE STRIKINGLY PARALLEL TO THAT
OF THE COURT IN FREEDMAN, SENATOR WALSH PROTESTED AGAINST THE "ATTEMPT
TO ENACT A LAW THAT WOULD VEST AN ADMINISTRATIVE OFFICER WITH POWER TO
TAKE BOOKS AND CONFISCATE THEM AND DESTROY THEM, BECAUSE, IN HIS
JUDGMENT, THEY WERE OBSCENE OR INDECENT," AND URGED THAT THE LAW
"OBLIGE HIM TO GO INTO COURT AND FILE HIS INFORMATION THERE . . . AND
HAVE IT DETERMINED IN THE USUAL WAY, THE SAME AS EVERY OTHER CRIME IS
DETERMINED."  72 CONG.REC.  5419.  SENATOR WHEELER LIKEWISE COULD NOT
"CONCEIVE HOW ANY MAN" COULD "POSSIBLY OBJECT" TO AN AMENDMENT TO THE
PROPOSED LEGISLATION THAT REQUIRED A CUSTOMS OFFICER, IF HE CONCLUDED
MATERIAL WAS OBSCENE, TO "TURN) IT OVER TO THE DISTRICT ATTORNEY, AND
THE DISTRICT ATTORNEY PROSECUTES THE MAN, AND HE HAS THE RIGHT OF TRIAL
BY JURY IN THAT CASE."  71 CONG.REC.  4466.  OTHER SENATORS SIMILARLY
INDICATED THEIR AVERSION TO CENSORSHIP "BY CUSTOMS CLERKS AND
BUREAUCRATIC OFFICIALS," ID., AT 4437 (REMARKS OF SEN. DILL),
PREFERRING THAT DETERMINATIONS OF OBSCENITY SHOULD BE LEFT TO COURTS
AND JURIES.  SEE, E.G., ID., AT 4433-4439, 4448, 4452-4459; 72
CONG.REC.  5417-5423, 5492, 5497.  SENATORS ALSO EXPRESSED THE CONCERN
LATER EXPRESSED IN FREEDMAN THAT JUDICIAL PROCEEDINGS BE COMMENCED AND
CONCLUDED PROMPTLY.  SPEAKING IN FAVOR OF ANOTHER AMENDMENT, SENATOR
PITTMAN NOTED THAT A CUSTOMS OFFICER SEIZING OBSCENE MATTER "SHOULD
IMMEDIATELY REPORT TO THE NEAREST UNITED STATES DISTRICT ATTORNEY
HAVING AUTHORITY UNDER THE LAW TO PROCEED TO CONFISCATE.  . . ."  ID.,
AT 5420.  COMMENTING ON AN EARLY DRAFT OF ANOTHER AMENDMENT THAT WAS
ULTIMATELY ADOPTED, SENATOR SWANSON NOTED THAT OFFICERS WOULD BE
REQUIRED TO GO TO COURT "IMMEDIATELY."  ID., AT 5422.  THEN HE ADDED: 

"THE MINUTE THERE IS A SUSPICION ON THE PART OF A REVENUE OR CUSTOMS
OFFICER THAT A CERTAIN BOOK IS IMPROPER TO BE ADMITTED INTO THIS
COUNTRY, HE PRESENTS THE MATTER TO THE DISTRICT COURT, AND THERE WILL
BE A PROMPT DETERMINATION OF THE MATTER BY A DECISION OF THAT COURT." 
ID., AT 5424. 

BEFORE IT FINALLY EMERGED FROM CONGRESS, SEC. 1305(A) WAS AMENDED IN
RESPONSE TO OBJECTIONS OF THE SORT VOICED ABOVE:  IT THUS REFLECTS THE
SAME POLICY CONSIDERATIONS THAT INDUCED THIS COURT TO HOLD IN FREEDMAN
THAT CENSORS MUST RESORT TO THE COURTS "WITHIN A SPECIFIED BRIEF
PERIOD" AND THAT SUCH RESORT MUST BE FOLLOWED BY "A PROMPT FINAL
JUDICIAL DECISION.  . . ."  380 U.S.,AT 59.  CONGRESS' SOLE OMISSION
WAS ITS FAILURE TO SPECIFY EXACT TIME LIMITS WITHIN WHICH RESORT TO THE
COURTS MUST BE HAD AND JUDICIAL PROCEEDINGS BE COMPLETED.  NO ONE
DURING THE CONGRESSIONAL DEBATES EVER SUGGESTED INCLUSION OF SUCH
LIMITS, PERHAPS BECAUSE EXPERIENCE HAD NOT YET DEMONSTRATED A NEED FOR
THEM.  SINCE 1930, HOWEVER, THE NEED HAS BECOME CLEAR.  OUR RESEARCHES
HAVE DISCLOSED CASES SANCTIONING DELAYS OF AS LONG AS 40 DAYS AND EVEN
SIX MONTHS BETWEEN SEIZURE OF OBSCENE GOODS AND COMMENCEMENT OF
JUDICIAL PROCEEDINGS.  SEE UNITED STATES V. 77 CARTONS OF MAGAZINES,
300 F.SUPP.  851 (ND CAL. 1969); UNITED STATES V. ONE CARTON POSITIVE
MOTION PICTURE FILM ENTITLED "491," 247 F.SUPP.  450 (SDNY 1965), REV'D
ON OTHER GROUNDS, 367 F.2D 889 (CA2 1966).  SIMILARLY, WE HAVE FOUND
CASES IN WHICH COMPLETION OF JUDICIAL PROCEEDINGS HAS TAKEN AS LONG AS
THREE, FOUR, AND EVEN SEVEN MONTHS.  SEE UNITED STATES V. TEN EROTIC
PAINTINGS, 311 F.SUPP.  884 (MD. 1970); UNITED STATES V. 35 MM COLOR
MOTION PICTURE FILM ENTITLED "LANGUAGE OF LOVE," 311 F.SUPP.  108 (SDNY
1970); UNITED STATES V. ONE CARTON POSITIVE MOTION PICTURE FILM
ENTITLED "491,"  SUPRA.  WE CONCLUDE THAT TO SANCTION SUCH DELAYS WOULD
BE CLEARLY INCONSISTENT WITH THE CONCERN FOR PROMPTNESS THAT WAS SO
FREQUENTLY ARTICULATED DURING THE COURSE OF THE SENATE'S DEBATES, AND
THAT FIDELITY TO CONGRESS' PURPOSE DICTATES THAT WE READ EXPLICIT TIME
LIMITS INTO THE SECTION.  THE ONLY ALTERNATIVE WOULD BE TO HOLD SEC.
1305(A) UNCONSTITUTIONAL IN ITS ENTIRETY, BUT CONGRESS HAS EXPLICITLY
DIRECTED THAT THE SECTION NOT BE INVALIDATED IN ITS ENTIRETY MERELY
BECAUSE ITS APPLICATION TO SOME PERSONS BE ADJUDGED UNLAWFUL.  SEE 19
U.S.C. 1652.  NOR DOES THE CONSTRUCTION OF SEC. 1305(A) TO INCLUDE
SPECIFIC TIME LIMITS REQUIRE US TO DECIDE ISSUES OF POLICY
APPROPRIATELY LEFT TO THE CONGRESS OR RAISE OTHER QUESTIONS UPON WHICH
CONGRESS POSSESSES SPECIAL LEGISLATIVE EXPERTISE, FOR CONGRESS HAS
ALREADY SET ITS COURSE IN FAVOR OF PROMPTNESS AND WE POSSESS AS MUCH
EXPERTISE AS CONGRESS IN DETERMINING THE SOLE REMAINING QUESTION-- THAT
OF THE SPEED WITH WHICH PROSECUTORIAL AND JUDICIAL INSTITUTIONS CAN, AS
A PRACTICAL MATTER, BE EXPECTED TO FUNCTION IN ADJUDICATING SEC.
1305(A) MATTERS.  WE ACCORDINGLY SEE NO REASON FOR DECLINING TO SPECIFY
THE TIME LIMITS WHICH MUST BE INCORPORATED INTO SEC. 1305(A)-- A
SPECIFICATION THAT IS FULLY CONSISTENT WITH CONGRESSIONAL PURPOSE AND
THAT WILL OBVIATE THE CONSTITUTIONAL OBJECTIONS RAISED BY CLAIMANT. 
INDEED, WE CONCLUDE THAT THE LEGISLATIVE HISTORY OF THE SECTION AND THE
POLICY OF GIVING LEGISLATION A SAVING CONSTRUCTION IN ORDER TO AVOID
DECISION OF CONSTITUTIONAL QUESTIONS REQUIRE THAT WE UNDERTAKE THIS
TASK OF STATUTORY CONSTRUCTION. 

WE BEGIN BY EXAMINING CASES IN THE LOWER FEDERAL COURTS IN WHICH
PROCEEDINGS HAVE BEEN BROUGHT UNDER SEC. 1305(A).  THAT EXAMINATION
INDICATES THAT IN MANY OF THE CASES THAT HAVE COME TO OUR ATTENTION THE
GOVERNMENT IN FACT INSTITUTED FORFEITURE PROCEEDINGS WITHIN 14 DAYS OF
THE DATE OF SEIZURE OF THE ALLEGEDLY OBSCENE GOODS, SEE UNITED STATES
V. RELIABLE SALES CO., 376 F.2D 803 (CA4 1967); UNITED STATES V. 1,000
COPIES OF A MAGAZINE ENTITLED "SOLIS," 254 F.SUPP.  595 (MD. 1966);
UNITED STATES V. 56 CARTONS CONTAINING 19,500 COPIES OF A MAGAZINE
ENTITLED "HELLENIC SUN," 253 F.SUPP.  498 (MD. 1966), AFF'D, 373 F.2D
635 (CA4 1067); UNITED STATES V. 392 COPIES OF A MAGAZINE ENTITLED
"EXCLUSIVE," 253 F.SUPP.  485 (MD. 1966); AND JUDICIAL PROCEEDINGS WERE
COMPLETED WITHIN 60 DAYS OF THEIR COMMENCEMENT.  SEE UNITED STATES V.
RELIABLE SALES CO., SUPRA; UNITED STATES V. 1,000 COPIES OF A MAGAZINE
ENTITLED "HELLENIC SUN," SUPRA; UNITED STATES V. 392 COPIES OF A
MAGAZINE ENTITLED "EXCLUSIVE," SUPRA; UNITED STATES V. 127,295 COPIES
OF MAGAZINES, MORE OR LESS, 295 F.SUPP.  1186 (MD. 1968).  GIVEN THIS
RECORD, IT SEEMS CLEAR THAT NO UNDUE HARDSHIP WILL BE IMPOSED UPON THE
GOVERNMENT AND THE LOWER FEDERAL COURTS BY REQUIRING THAT FORFEITURE
PROCEEDINGS BE COMMENCED WITHIN 14 DAYS AND COMPLETED WITHIN 60 DAYS OF
THEIR COMMENCEMENT; NOR DOES A DELAY OF AS MUCH AS 74 DAYS SEEM UNDUE
FOR IMPORTERS ENGAGED IN THE LENGTHY PROCESS OF BRINGING GOODS INTO
THIS COUNTRY FROM ABROAD.  ACCORDINGLY, WE CONSTRUE SEC. 1305(A) TO
REQUIRE INTERVALS OF NO MORE THAN 14 DAYS FROM SEIZURE OF THE GOODS TO
THE INSTITUTION OF JUDICIAL PROCEEDINGS FOR THEIR FORFEITURE AND NO
LONGER THAN 60 DAYS FROM THE FILING OF THE ACTION TO FINAL DECISION IN
THE DISTRICT COURT.  NO SEIZURE OR FORFEITURE WILL BE INVALIDATED FOR
DELAY, HOWEVER, WHERE THE CLAIMANT IS RESPONSIBLE FOR EXTENDING EITHER
ADMINISTRATIVE ACTION OR JUDICIAL DETERMINATION BEYOND THE ALLOWABLE
TIME LIMITS OR WHERE ADMINISTRATIVE OR JUDICIAL PROCEEDINGS ARE
POSTPONED PENDING THE CONSIDERATION OF CONSTITUTIONAL ISSUES
APPROPRIATE ONLY FOR A THREE-JUDGE COURT. 

OF COURSE, WE DO NOT NOW DECIDE THAT THESE ARE THE ONLY
CONSTITUTIONALLY PERMISSIBLE TIME LIMITS.  WE NOTE, FURTHERMORE, THAT
CONSTITUTIONALLY PERMISSIBLE LIMITS MAY VARY IN DIFFERENT CONTEXTS; IN
OTHER CONTEXTS, SUCH AS A CLAIM BY A STATE CENSOR THAT A MOVIE IS
OBSCENE, THE CONSTITUTION MAY IMPOSE DIFFERENT REQUIREMENTS WITH
RESPECT TO THE TIME BETWEEN THE MAKING OF THE CLAIM AND THE INSTITUTION
OF JUDICIAL PROCEEDINGS OR BETWEEN THEIR COMMENCEMENT AND COMPLETION
THAN IN THE CONTEXT OF A CLAIM OF OBSCENITY MADE BY CUSTOMS OFFICIALS
AT THE BORDER.  WE DECIDE NONE OF THESE QUESTIONS TODAY.  WE DO NOTHING
IN THIS CASE BUT CONSTRUE SEC. 1305(A) IN ITS PRESENT FORM, FULLY
COGNIZANT THAT CONGRESS MAY RE-ENACT IT IN A NEW FORM SPECIFYING NEW
TIME LIMITS, UPON WHOSE CONSTITUTIONALITY WE MAY THEN BE REQUIRED TO
PASS. 

SO CONSTRUED, SEC. 1305(A) MAY CONSTITUTIONALLY BE APPLIED TO THE
CASE BEFORE US.  SEIZURE IN THE PRESENT CASE TOOK PLACE ON OCTOBER 24
AND FORFEITURE PROCEEDINGS WERE INSTITUTED ON NOVEMBER 6-- A MERE 13
DAYS AFTER SEIZURE.  MOREOVER, DECISION ON THE OBSCENITY OF LUROS'
MATERIALS MIGHT WELL HAVE BEEN FORTHCOMING WITHIN 60 DAYS HAD CLAIMANT
NOT CHALLENGED THE VALIDITY OF THE STATUTE AND CAUSED A THREE-JUDGE
COURT TO BE CONVENED.  WE HOLD THAT PROCEEDINGS OF SUCH BREVITY FULLY
MEET THE CONSTITUTIONAL STANDARDS SET OUT IN FREEDMAN, TEITEL, AND
BLOUNT.  SECTION 1305(A) ACCORDINGLY MAY BE APPLIED TO THE 37
PHOTOGRAPHS, PROVIDING THAT ON REMAND THE OBSCENITY ISSUE IS RESOLVED
IN THE DISTRICT COURT WITHIN 60 DAYS, EXCLUDING ANY DELAYS CAUSED BY
LUROS. 

    II 

WE NEXT CONSIDER LUROS' SECOND CLAIM, WHICH IS BASED UPON STANLEY V.
GEORGIA, SUPRA.  ON THE AUTHORITY OF STANLEY, LUROS URGED THE TRIAL
COURT TO CONSTRUE THE FIRST AMENDMENT AS FORBIDDING ANY RESTRAINTS ON
OBSCENITY EXCEPT WHERE NECESSARY TO PROTECT CHILDREN OR WHERE IT
INTRUDED ITSELF UPON THE SENSITIVITY OR PRIVACY OF AN UNWILLING ADULT. 
WITHOUT REJECTING THIS POSITION, THE TRIAL COURT READ STANLEY AS
PROTECTING, AT THE VERY LEAST, THE RIGHT TO READ OBSCENE MATERIAL IN
THE PRIVACY OF ONE'S OWN HOME AND TO RECEIVE IT FOR THAT PURPOSE.  IT
THEREFORE HELD THAT SEC. 1305(A), WHICH BARS THE IMPORTATION OF
OBSCENITY FOR PRIVATE USE AS WELL AS FOR COMMERCIAL DISTRIBUTION, IS
OVERBROAD AND HENCE UNCONSTITUTIONAL.  /3/ 

THE TRIAL COURT ERRED IN READING STANLEY AS IMMUNIZING FROM SEIZURE
OBSCENE MATERIALS POSSESSED AT A PORT OF ENTRY FOR THE PURPOSE OF
IMPORTATION FOR PRIVATE USE.  IN UNITED STATES V. REIDEL, ANTE, P. 351,
WE HAVE TODAY HELD THAT CONGRESS MAY CONSTITUTIONALLY PREVENT THE MAILS
FROM BEING USED FOR DISTRIBUTING PORNOGRAPHY.  IN KHIS CASE, NEITHER
LUROS NOR HIS PUTATIVE BUYERS HAVE RIGHTS THAT ARE INFRINGED BY THE
EXCLUSION OF OBSCENITY FROM INCOMING FOREIGN COMMERCE.  BY THE SAME
TOKEN, OBSCENE MATERIALS MAY BE REMOVED FROM THE CHANNELS OF COMMERCE
WHEN DISCOVERED IN THE LUGGAGE OF A RETURNING FOREIGN TRAVELER EVEN
THOUGH INTENDED SOLELY FOR HIS PRIVATE USE.  THAT THE PRIVATE USER
UNDER STANLEY MAY NOT BE PROSECUTED FOR POSSESSION OF OBSCENITY IN HIS
HOME DOES NOT MEAN THAT HE IS ENTITLED TO IMPORT IT FROM ABROAD FREE
FROM THE POWER OF CONGRESS TO EXCLUDE NOXIOUS ARTICLES FROM COMMERCE. 
STANLEY'S EMPHASIS WAS ON THE FREEDOM OF THOUGHT AND MIND IN THE
PRIVACY OF THE HOME.  BUT A PORT OF ENTRY IS NOT A TRAVELER'S HOME. 
HIS RIGHT TO BE LET ALONE NEITHER PREVENTS THE SEARCH OF HIS LUGGAGE
NOR THE SEIZURE OF UNPROTECTED, BUT ILLEGAL, MATERIALS WHEN HIS
POSSESSION OF THEM IS DISCOVERED DURING SUCH A SEARCH.  CUSTOMS
OFFICERS CHARACTERISTICALLY INSPECT LUGGAGE AND THEIR POWER TO DO SO IS
NOT QUESTIONED IN THIS CASE; IT IS AN OLD PRACTICE AND IS INTIMATELY
ASSOCIATED WITH EXCLUDING ILLEGAL ARTICLES FROM THE COUNTRY.  WHATEVER
THE SCOPE OF THE RIGHT TO RECEIVE OBSCENITY ADUMBRATED IN STANLEY, THAT
RIGHT, AS WE SAID IN REIDEL, DOES NOT EXTEND TO ONE WHO IS SEEKING, AS
WAS LUROS HERE, TO DISTRIBUTE OBSCENE MATERIALS TO THE PUBLIC, NOR DOES
IT EXTEND TO ONE SEEKING TO IMPORT OBSCENE MATERIALS FROM ABROAD,
WHETHER FOR PRIVATE USE OR PUBLIC DISTRIBUTION.  AS WE HELD IN ROTH V.
UNITED STATES, 354 U.S. 476 (1957), AND REITERATED TODAY IN REIDEL,
SUPRA, OBSCENITY IS NOT WITHIN THE SCOPE OF FIRST AMENDMENT
PROTECTION.  HENCE CONGRESS MAY DECLARE IT CONTRABAND AND PROHIBIT ITS
IMPORTATION, AS IT HAS ELECTED IN SEC. 1305(A) TO DO. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

(FOR DISSENTING OPINION OF MR. JUSTICE MARSHALL, SEE ANTE, P. 360.) 

/0/  MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ALSO JOIN PART I OF
THE OPINION. 

/1/  19 U.S.C. 1305(A) PROVIDES IN PERTINENT PART: 

"ALL PERSONS PROHIBITED FROM IMPORTING INTO THE UNITED STATES FROM
ANY FOREIGN COUNTRY . . . ANY OBSCENE BOOK, PAMPHLET, PAPER, WRITING,
ADVERTISEMENT, CIRCULAR, PRINT, PICUTRE, DRAWING, OR OTHER
REPRESENTATION, FIGURE, OR IMAGE ON OR OF PAPER OR OTHER MATERIAL, OR
ANY CAST, INSTRUMENT, OR OTHER ARTICLE WHICH IS OBSCENE OR IMMORAL.  .
. . NO SUCH ARTICLES WHETHER IMPORTED SEPARATELY OR CONTAINED IN
PACKAGES WITH OTHER GOODS ENTITLED TO ENTRY, SHALL BE CONTAINED IN
PACKAGES WITH OTHER GOODS ENTITLED TO ENTRY, SHALL BE ADMITTED TO
ENTRY; AND ALL SUCH ARTICLES AND, UNLESS IT APPEARS TO THE SATISFACTION
OF THE COLLECTOR THAT THE OBSCENE OR OTHER PROHIBITED ARTICLES
CONTAINED IN THE PACKAGE WERE INCLOSED THEREIN WITHOUT THE KNOWLEDGE OR
CONSENT OF THE IMPORTER, OWNER, AGENT, OR CONSIGNEE, THE ENTIRE
CONTENTS OF THE PACKAGE IN WHICH SUCH ARTILCES ARE CONTAINED, SHALL BE
SUBJECT TO SEIZURE AND FORFEITURE AS HEREINAFTER PROVIDED.  . . .
PROVIDED, FURTHER, THAT THE SECRETARY OF THE TREASURY MAY, IN HIS
DISCRETION, ADMIT THE SO-CALLED CLASSICS OR BOOKS OF RECOGNIZED AND
ESTABLISHED LITERARY OR SCIENTIFIC MERIT, BUT MAY, IN HIS DISCRETION,
ADMIT SUCH CLASSICS OR BOOKS ONLY WHEN IMPORTED FOR NONCOMMERCIAL
PURPOSES. 

"UPON THE APPEARANCE OF ANY SUCH BOOK OR MATTER AT ANY CUSTOMS
OFFICE, THE SAME SHALL BE SEIZED AND HELD BY THE COLLECTOR TO AWAIT THE
JUDGMENT OF THE DISTRICT COURT AS HEREINAFTER PROVIDED; AND NO PROTEST
SHALL BE TAKEN TO THE UNITED STATES CUSTOMS COURT FROM THE DECISION OF
THE COLLECTOR.  UPON THE SEIZURE OF SUCH BOOK OR MATTER THE COLLECTOR
SHALL TRANSMIT INFORMATION THEREOF TO THE DISTRICT ATTORNEY OF THE
DISTRICT IN WHICH IS SITUATED THE OFFICE AT WHICH SUCH SEIZURE HAS
TAKEN PLACE, WHO SHALL INSTITUTE PROCEEDINGS IN THE DISTRICT COURT FOR
THE FORFEITURE, CONFISCATION, AND DESTRUCTION OF THE BOOK OR MATTER
SEIZED.  UPON THE ADJUDICATION THAT SUCH BOOK OR MATTER THUS SEIZED IS
OF THE CHARACTER THE ENTRY OF WHICH IS BY THIS SECTION PROHIBITED, IT
SHALL BE ORDERED DESTROYED AND SHALL BE DESTROYED.  UPON ADJUDICATION
THAT SUCH BOOK OR MATTER THUS SEIZED IS NOT OF THE CHARACTER THE ENTRY
OF WHICH IS BY THIS SECTION PROHIBITED, IT SHALL NOT BE EXCLUDED FROM
ENTRY UNDER THE PROVISIONS OF THIS SECTION. 

"IN ANY SUCH PROCEEDING ANY PARTY IN INTEREST MAY UPON DEMAND HAVE
THE FACTS AT ISSUE DETERMINED BY A JURY AND ANY PARTY MAY HAVE AN
APPEAL OR THE RIGHT OF REVIEW AS IN THE CASE OF ORDINARY ACTIONS OR
SUITS." 

/2/  THE UNITED STATES URGES THAT WE FIND TIME LIMITS IN 19 U.S.C.
1602 AND 1604.  SECTION 1602 PROVIDES THAT CUSTOMS AGENTS WHO SEIZE
GOODS MUST "REPORT EVERY SUCH SEIZURE IMMEDIATELY" TO THE COLLECTOR OF
THE DISTRICT, WHILE SEC. 1604 PROVIDES THAT, ONCE A CASE HAS BEEN
TURNED OVER TO A UNITED STATES ATTORNEY, IT SHALL BE HIS DUTY
"IMMEDIATELY TO INQUIRE INTO THE FACTS" AND "FORTHWITH TO CAUSE THE
PROPER PROCEEDINGS TO BE COMMENCED AND PROSECUTRED, WITHOUT DELAY," IF
HE CONCLUDES JUDICIAL PROCEEDINGS ARE APPROPRIATE.  WE NEED NOT DECIDE,
HOWEVER, WHETHER SECS. 1602 AND 1604 CAN PROPERLY BE APPLIED TO CURE
THE INVALIDITY OF SEC. 1305(A), FOR EVEN IF THEY WERE APPLICABLE, THEY
WOULD NOT PROVIDE ADEQUATE TIME LIMITS AND WOULD NOT CURE ITS
INVALIDITY.  THE TWO SECTIONS CONTAIN NO SPECIFIC TIME LIMITS, NOR DO
THEY REQUIRE THE COLLECTOR TO ACT PROMPTLY IN REFERRING A MATTER TO THE
UNITED STATES ATTORNEY FOR PROSECUTION.  ANOTHER FLAW IS THAT SEC. 1604
REQUIRES THAT, IF THE UNITED STATES ATTORNEY DECLINES TO PROSECUTE, HE
MUST REPORT THE FACTS TO THE SECRETARY OF THE TREASURY FOR HIS
DIRECTION, BUT THE SECRETARY IS UNDER NO DUTY TO ACT WITH SPEED.  THE
FINAL FLAW IS THAT NEITHER SECTION REQUIRES THE DISTRICT COURT IN WHICH
A CASE IS COMMENCED TO COME PROMPTLY TO A FINAL DECISION. 

/3/  THE DISTRICT COURT'S OPINION IS NOT ENTIRELY CLEAR.  THE COURT
MAY HAVE REASONED THAT LUROS HAD A RIGHT TO IMPORT THE 37 PHOTOGRAPHS
IN QUESTION FOR PLANNED DISTRIBUTION TO THE GENERAL PUBLIC, BUT OUR
DECISION TODAY IN UNITED STATES V. REIDEL, ANTE, P. 351, MAKES IT CLEAR
THAT SUCH REASONING WOULD HAVE BEEN IN ERROR.  ON THE OTHER HAND, THE
DISTRICT COURT MAY HAVE REASONED THAT, WHILE LUROS HAD NO RIGHT TO
IMPORT THE PHOTOGRAPHS FOR DISTRIBUTION, A PERSON WOULD HAVE A RIGHT
UNDER STANLEY TO IMPORT THEM FOR HIS OWN PRIVATE USE AND THAT SEC.
1305(A) WAS THEREFORE VOID AS OVERBROAD BECAUSE IT PROHIBITS BOTH SORTS
OF IMPORTATION.  IF THIS WAS THE COURT'S REASONING, THE PROPER
APPROACH, HOWEVER, WAS NOT TO INVALIDATE THE SECTION IN ITS ENTIRETY,
BUT TO CONSTUE IT NARROWLY AND HOLD IT VALID IN ITS APPLICATION TO
LUROS.  THIS WAS MADE CLEAR IN DOMBROWSKI V. PFISTER, 380 U.S. 479, 491
492 (1965), WHERE THE COURT NOTED THAT, ONCE THE OVERBREADTH OF A
STATUTE HAS BEEN SUFFICIENTLY DEALTH WITH, IT MAY BE APPLIED TO PRIOR
CONDUCT FORESEEABLY WITHIN ITS VALID SWEEP. 

MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT AND IN PART I OF MR.
JUSTICE WHITE'S OPINION. 

I AGREE, FOR THE REASONS SET FORTH IN PART I OF MR. JUSTICE WHITE'S
OPINION, THAT THIS STATUTE MAY AND SHOULD BE CONSTRUED AS REQUIRING
ADMINISTRATIVE AND JUDICIAL ACTION WITHIN SPECIFIED TIME LIMITS THAT
WILL AVOID THE CONSTITUTIONAL ISSUE THAT WOULD OTHERWISE BE PRESENTED
BY FREEDMAN V. MARYLAND, 380 U.S. 51 (1965).  OUR DECISION TODAY IN
UNITED STATES V. REIDEL, ANTE, P. 351, FORECLOSES THE IMPORTATION OF
OBSCENE MATERIALS FOR COMMERCIAL DISTRIBUTION. 

LUROS ALSO ATTACKED THE STATUTE ON ITS FACE AS OVERBROAD BECAUSE OF
ITS APPARENT PROHIBITION OF IMPORTATION FOR PRIVATE USE.  A STATUTORY
SCHEME PURPORTING TO PROSCRIBE ONLY IMPORTATION FOR COMMERCIAL PURPOSES
WOULD CERTAINLY BE SUFFICIENTLY CLEAR TO WITHSTAND A FACIAL ATTACK ON
THE STATUTE BASED ON THE NOTION THAT THE LINE BETWEEN COMMERCIAL AND
PRIVATE IMPORTATION IS SO UNCLEAR AS TO INHIBIT THE ALLEGED RIGHT TO
IMPORT FOR PRIVATE USE.  CF. BREARD V. ALEXANDRIA, 341 U.S. 622
(1951).  IT IS INCONTESTABLE THAT 19 U.S.C. 1305(A) IS INTENDED TO
COVER AT THE VERY LEAST IMPORTATION OF OBSCENE MATERIALS FOR COMMERCIAL
PURPOSES.  SEE N. 1 OF MR. JUSTICE WHITE'S OPINION.  SINCE THE PARTIES
STIPULATED THAT THE MATERIALS WERE IMPORTED FOR COMMERCIAL PURPOSES,
LUROS CANNOT CLAIM THAT HIS PRIMARY CONDUCT WAS NOT INTENDED TO BE
WITHIN THE STATUTE'S SWEEP.  CF. DOMBROWSKI V. PFISTER, 380 U.S. 479,
491-492 (1965).  FINALLY, THE STATUTE INCLUDES A SEVERABILITY CLAUSE. 
19 U.S.C. 1652. 

THUS IT IS APPARENT THAT WE COULD ONLY NARROW THE STATUTE'S SWEEP TO
COMMERCIAL IMPORTATION, WERE WE TO DETERMINE THAT IMPORTATION FOR
PRIVATE USE IS CONSTITUTIONALLY PRIVILEGED.  IN THESE CIRCUMSTANCES,
THE ARGUMENT THAT LUROS SHOULD BE ALLOWED TO RAISE THE QUESTION OF
CONSTITUTIONAL PRIVILEGE TO IMPORT FOR PRIVATE USE, IN ORDER TO PROTECT
THE ALLEGED FIRST AMENDMENT RIGHTS OF PRIVATE IMPORTERS OF OBSCENITY
FROM THE "CHILLING EFFECTS" OF THE STATUTE'S PRESENCE ON THE BOOKS,
SEEMS TO ME TO BE CLEARLY OUTWEIGHED BY THE POLICY THAT THE RESOLUTION
OF CONSTITUTIONAL QUESTIONS SHOULD BE AVOIDED WHERE NOT NECESSARY TO
THE DECISION OF THE CASE AT HAND. 

I WOULD HOLD THAT LUROS LACKED STANDING TO RAISE THE OVERBREADTH
CLAIM.  SEE NOTE, THE FIRST AMENDMENT OVERBREADTH DOCTRINE, 83
HARV.L.REV.  844, 910 (1970).     ON THE FOREGOING PREMISES I JOIN PART
I OF THE COURT'S OPINION AND AS TO PART II, CONCUR IN THE JUDGMENT. 
/1/ 

/1/  AGAIN, AS IN UNITED STATES V. REIDEL, SUPRA, THE OBSCENITY VEL
NON OF THE SEIZED MATERIALS IS NOT PRESENTED AT THIS JUNCTURE OF THE
CASE. 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT AND IN PART I OF MR.
JUSTICE WHITE'S OPINION. 

I AGREE THAT THE FIRST AMENDMENT DOES NOT PREVENT THE BORDER SEIZURE
OF OBSCENE MATERIALS SOUGHT TO BE IMPORTED FOR COMMERCIAL
DISSEMINATION.  FOR THE REASONS EXPRESSED IN PART I OF MR. JUSTICE
WHITE'S OPINION, I ALSO AGREE THAT FREEDMAN V. MARYLAND, 380 U.S. 51,
REQUIRES THAT THERE BE TIME LIMITS FOR THE INITIATION OF FORFEITURE
PROCEEDINGS AND FOR THE COMPLETION OF THE JUDICIAL DETERMINATION OF
OBSCENITY. 

BUT I WOULD NOT IN THIS CASE DECIDE, EVEN BY WAY OF DICTA, THAT THE
GOVERNMENT MAY LAWFULLY SEIZE LITERARY MATERIAL INTENDED FOR THE PURELY
PRIVATE USE OF THE IMPORTER.  /1/  THE TERMS OF THE STATUTE APPEAR TO
APPLY TO AN AMERICAN TOURIST WHO, AFTER EXERCISING HIS CONSTITUTIONALLY
PROTECTED LIBERTY TO TRAVEL ABROAD, /2/  RETURNS HOME WITH A SINGLE
BOOK IN HIS LUGGAGE, WITH NO INTENTION OF SELLING IT OR OTHERWISE USING
IT, EXCEPT TO READ IT.  IF THE GOVERNMENT CAN CONSTITUTIONALLY TAKE THE
OBK AWAY FROM HIM AS HE PASSES THROUGH CUSTOMS, THEN I DO NOT
UNDERSTAND THE MEANING OF STANLEY V. GEORGIA, 394 U.S. 557. 

/1/  AS MR. JUSTICE WHITE'S OPINION CORRECTLY SAYS, EVEN IF SEIZURE
OF MATERIAL FOR PRIVATE USE IS UNCONSTITUTIONAL, THE STATUTE CAN STILL
STAND IN APPROPRIATELY NARROWED FORM, AND THE SEIZURE IN THIS CASE
CLEARLY FALLS WITHIN THE VALID SWEEP OF SUCH A NARROWED STATUTE.  ANTE,
AT 375, N. 3. 

/2/  APTHEKER V. SECRETARY OF STATE, 378 U.S. 500. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 
/2/

        I 

I DISSENT FROM THE JUDGMENTS OF THE COURT FOR THE REASONS STATED IN
MANY OF MY PRIOR OPINIONS.  SEE, E.G., SMITH V. CALIFORNIA, 361 U.S.
147, 155 (1959) (BLACK, J., CONCURRING); GINZBURG V. UNITED STATES, 383
U.S. 463, 476 (1966) (BLACK, J., DISSENTING).  IN MY VIEW THE FIRST
AMENDMENT DENIES CONGRESS THE POWER TO ACT AS CENSOR AND DETERMINE WHAT
BOOKS OUR CITIZENS MAY READ AND WHAT PICUTRES THEY MAY WATCH. 

I PARTICULARLY REGRET TO SEE THE COURT REVIVE THE DOCTRINE OF ROTH
V. UNITED STATES, 354 U.S. 476 (1957), THAT "OBSCENITY" IS SPEECH FOR
SOME REASON UNPROTECTED BY THE FIRST AMENDMENT.  AS THE COURT'S MANY
DECISIONS IN THIS AREA DEMONSTRATE, IT IS EXTREMELY DIFFICULT FOR
JUDGES OR ANY OTHER CITIZENS TO AGREE ON WHAT IS "OBSCENE."  SINCE THE
DISTINCTIONS BETWEEN PROTECTED SPEECH AND "OBSCENITY" ARE SO ELUSIVE
AND OBSCURE, ALMOST EVERY "OBSCENITY" CASE INVOLVES DIFFICULT
CONSTITUTIONAL ISSUES.  AFTER ROTH OUR DOCKET AND THOSE OF OTHER COURTS
HAVE CONSTANTLY BEEN CROWDED WITH CASES WHERE JUDGES ARE CALLED UPON TO
DECIDE WHETHER A PARTICULAR BOOK, MAGAZINE, OR MOVIE MAY BE BANNED.  I
HAVE EXPRESSED BEFORE MY VIEW THAT I CAN IMAGINE NO TASK FOR WHICH THIS
COURT OF LIFETIME JUDGES IS LESS EQUIPPED TO DEAL.  SMITH V.
CALIFORNIA, SUPRA, (BLACK, J., CONCURRING). 

IN VIEW OF THE DIFFICULTIES WITH THE ROTH APPROACH, IT IS NOT
SURPRISING THAT MANY RECENT DECISIONS HAVE AT LEAST IMPLICITLY
SUGGESTED THAT IT SHOULD BE ABANDONED.  SEE STANLEY V. GEORGIA, 394
U.S. 557 (1969); REDRUP V. NEW YORK, 386 U.S. 767 (1967).  DESPITE THE
PROVED SHORTCOMINGS OF ROTH, THE MAJORITY IN REIDEL TODAY REAFFIRMS THE
VALIDITY OF THAT DUBIOUS DECISION.  THUS, FOR THE FORESEEABLE FUTURE
THIS COURT MUST SIT AS A BOARD OF SUPREME CENSORS, SIFTING THROUGH
BOOKS AND MAGAZINES AND WATCHING MOVIES BECAUSE SOME OFFICIAL FEARS
THEY DEAL TOO EXPLICITLY WITH SEX.  I CAN IMAGINE NO MORE DISTASTEFUL,
USELESS, AND TIME-CONSUMING TASK FOR THE MEMBERS OF THIS COURT THAN
PERUSING THIS MATERIAL TO DETERMINE WHETHER IT HAS "REDEEMING SOCIAL
VALUE."  THIS ABSURD SPECTACLE COULD BE AVOIDED IF WE WOULD ADHERE TO
THE LITERAL COMMAND OF THE FIRST AMENDMENT THAT "CONGRESS SHALL MAKE NO
LAW . . . ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS.  . . ." 

        II 

WHOLLY ASIDE FROM MY OWN VIEWS OF WHAT THE FIRST AMENDMENT DEMANDS,
I DO NOT SEE HOW THE REASONING OF MR. JUSTICE WHITE'S OPINION TODAY IN
THIRTY-SEVEN PHOTOGRAPHS CAN BE RECONCILED WITH THE HOLDINGS OF EARLIER
CASES.  THAT OPINION INSISTS THAT THE TRIAL COURT ERRED IN READING
STANLEY V. GEORGIA, SUPRA, "AS IMMUNIZING FROM SEIZURE OBSCENE
MATERIALS POSSESSED AT A PORT OF ENTRY FOR THE PURPOSE OF IMPORTATION
FOR PRIVATE USE."  ANTE, AT 376.  BUT IT IS NEVER SATISFACTORILY
EXPLAINED JUST WHY THE TRIAL COURT'S READING OF STANLEY WAS ERRONEOUS. 
IT WOULD SEEM TO ME THAT IF A CITIZEN HAD A RIGHT TO POSSES "OBSCENE"
MATERIAL IN THE PRIVACY OF HIS HOME HE SHOULD HAVE THE RIGHT TO RECEIVE
IT VOLUNTARILY THROUGH THE MAIL.  CERTAINLY WHEN A MAN LEGALLY
PURCHASES SUCH MATERIAL ABROAD HE SHOULD BE ABLE TO BRING IT WITH HIM
THROUGH CUSTOMS TO READ LATER IN HIS HOME.  THE MERE ACT OF IMPORTATION
FOR PRIVATE USE CAN HARDLY BE MORE OFFENSIVE TO OTHERS THAN IS PRIVATE
PERUSAL IN ONE'S HOME.  THE RIGHT TO READ AND VIEW ANY LITERATURE AND
PICTURES AT HOME IS HALLOW INDEED IF IT DOES NOT INCLUDE A RIGHT TO
CARRY THAT MATERIAL PRIVATELY IN ONE'S LUGGAGE WHEN ENTERING THE
COUNTRY. 

THE PLURALITY OPINION SEEMS TO SUGGEST THAT THIRTY-SEVEN PHOTOGRAPHS
DIFFERS FROM STANLEY BECAUSE "CUSTOMS OFFICERS CHARACTERISTICALLY
INSPECT LUGGAGE AND THEIR POWER TO DO SO IS NOT QUESTIONED IN THIS
CASE.  . . ."  ANTE, AT 376.  BUT SURELY THIS OBSERVATION DOES NOT
DISTINGUISH STANLEY, BECAUSE POLICE FREQUENTLY SEARCH PRIVATE HOMES AS
WELL, AND THEIR POWER TO DO SO IS UNQUESTIONED SO LONG AS THE SEARCH IS
REASONABLE WITHIN THE MEANING OF THE FOURTH AMENDMENT. 

PERHAPS, HOWEVER, THE PLURALITY REASONS SILENTLY THAT A PROHIBITION
AGAINST IMPORTATION OF OBSCENE MATERIALS FOR PRIVATE USE IS
CONSTITUTIONALLY PERMISSIBLE BECAUSE IT IS NECESSARY TO PREVENT
ULTIMATE COMMERCIAL DISTRIBUTION OF OBSCENITY.  IT MAY FEEL THAT AN
IMPORTER'S INTENT TO DISTRIBUTE OBSCENE MATERIALS COMMERCIALLY IS SO
DIFFICULT TO PROVE THAT ALL SUCH IMPORTATION MAY BE OUTLAWED WITHOUT
OFFENDING THE FIRST AMENDMENT.  A VERY SIMILAR ARGUMENT WAS MADE BY THE
STATE IN STANLEY WHEN IT URGED THAT ENFORCEMENT OF A POSSESSION LAW WAS
NECESSARY BECAUSE OF THE DIFFICULTIES OF PROVING INTENT TO DISTRIBUTE
OR ACTUAL DISTRIBUTION.  HOWEVER, THE COURT UNEQUIVOCALLY REJECTED THAT
ARGUMENT BECAUSE AN INDIVIDUAL'S RIGHT TO "READ OR OBSERVE WHAT HE
PLEASES" IS SO "FUNDAMENTAL TO OUR SCHEME OF INDIVIDUAL LIBERTY."  394
U.S.,AT 568. 

FURTHERMORE, ANY ARGUMENT THAT ALL IMPORTATION MAY BE BANNED TO STOP
POSSIBLE COMMERCIAL DISTRIBUTION SIMPLY IGNORES NUMEROUS HOLDINGS OF
THIS COURT THAT LEGISLATION TOUCHING ON FIRST AMENDMENT FREEDOMS MUST
BE PRECISELY AND NARROWLY DRAWN TO AVOID STIFLING THE EXPRESSION THE
AMENDMENT WAS DESIGNED TO PROTECT.  CERTAINLY THE COURT HAS REPEATEDLY
APPLIED THE RULE AGAINST OVERBREADTH IN PAST CENSORSHIP CASES, AS IN
BUTLER V. MICHIGAN, 352 U.S. 380 (1957), WHERE WE HELD THAT THE STATE
COULD NOT QUARANTINE "THE GENERAL READING PUBLIC AGAINST BOOKS NOT TOO
RUGGED FOR GROWN MEN AND WOMEN IN ORDER TO SHIELD JUVENILE INNOCENCE." 
ID., AT 383.  CF. THORNHILL V. ALABAMA, 310 U.S. 88 (1940); UNITED
STATES V. ROBEL, 389 U.S. 258 (1967). 

SINCE THE PLURALITY OPINION OFFERS NO PLAUSIBLE REASON TO
DISTINGUISH PRIVATE POSSESSION OF "OBSCENITY" FROM IMPORTATION FOR
PRIVATE USE, I CAN ONLY CONCLUDE THAT AT LEAST FOUR MEMBERS OF THE
COURT WOULD OVERRULE STANLEY.  OR PERHAPS IN THE FUTURE THAT CASE WILL
BE RECOGNIZED AS GOOD LAW ONLY WHEN A MAN WRITES SALACIOUS BOOKS IN HIS
ATTIC, PRINTS THEM IN HIS BASEMENT, AND READS THEM IN HIS LIVING ROOM. 

THE PLURALITY OPINION APPEARS TO CONCEDE THAT THE CUSTOMS OBSCENITY
STATUTE IS UNCONSTITUTIONAL ON ITS FACE AFTER THE COURT'S DECISION IN
FREEDMAN V. MARYLAND, 380 U.S. 51 (1965), BECAUSE THIS LAW SPECIFIES NO
TIME LIMITS WITHIN WHICH FORFEITURE PROCEEDINGS MUST BE STARTED AGAINST
SEIZED BOOKS OR PICTURES, AND IT DOES NOT REQUIRE A PROMPT FINAL
JUDICIAL HEARING ON OBSCENITY.  ANTE, AT 368-369.  ONCE THE PLURALITY
HAS REACHED THIS DETERMINATION, THE PROPER COURSE WOULD BE TO AFFIRM
THE LOWER COURT'S DECISION.  BUT THE PLURALITY GOES ON TO REWRITE THE
STATUTE BY ADDING SPECIFIC TIME LIMITS.  THE PLURALITY THEN NOTES THAT
THE GOVERNMENT HERE HAS CONVENIENTLY STAYED WITHIN THESE JUDICALLY
MANUFACTURED LIMITS BY ONE DAY, AND ON THAT PREMISE IT CONCLUDES THE
STATUTE MAY BE ENFORCED IN THIS CASE.  IN MY VIEW THE PLURALITY'S
ACTION IN REWRITING THIS STATUTE REPRESENTS A SEIZURE OF LEGISLATIVE
POWER THAT WE SIMPLY DO NOT POSSESS UNDER THE CONSTITUTION. 

CERTAINLY CLAIMANT LUROS HAS STANDING TO RAISE THE CLAIM THAT THE
CUSTOMS STATUTE'S FAILURE TO PROVIDE FOR PROMPT JUDICIAL DECISION
RENDERS IT UNCONSTITUTIONAL.  OUR PREVIOUS DECISIONS MAKE CLEAR THAT
SUCH CENSORSHIP STATUTES MAY BE CHALLENGED ON THEIR FACE AS A VIOLATION
OF FIRST AMENDMENT RIGHTS "WHETHER OR NOT (A DEFENDANT'S) CONDUCT COULD
BE PROSCRIBED BY A PROPERLY DRAWN STATUTE."  FREEDMAN V. MARYLAND,
SUPRA, AT 56.  THIS IS TRUE BECAUSE OF THE "DANGER OF TOLERATING, IN
THE AREA OF FIRST AMENDMENT FREEDOMS, THE EXISTENCE OF A PENAL STATUTE
SUSCEPTIBLE OF SWEEPING AND IMPROPER APPLICATION."  NAACP V. BUTTON,
371 U.S. 415, 433 (1963).  SINCE THIS CENSORSHIP STATUTE IS
UNCONSTITUTIONAL ON ITS FACE, AND CLAIMANT HAS STANDING TO CHALLENGE IT
AS SUCH, THAT SHOULD END THE CASE WITHOUT FURTHER ADO.  BUT THE
PLURALITY NIMBLY AVOIDS THIS RESULT BY WRITING A NEW CENSORSHIP
STATUTE. 

I SIMPLY CANNOT UNDERSTAND HOW THE PLURALITY DETERMINES IT HAS THE
POWER TO SUBSTITUTE THE NEW STATUTE FOR THE ONE THAT THE DULY ELECTED
REPRESENTATIVES OF THE PEOPLE HAVE ENACTED.  THE PLURALITY BETRAYS ITS
UNEASINESS WHEN IT CONCEDES THAT WE SPECIFICALLY REFUSED TO UNDERTAKE
ANY SUCH LEGISLATIVE TASK IN FREEDMAN, SUPRA, AND IN BLOUNT V. RIZZI,
400 U.S. 410 (1971).  AFTER HOLDING THE MARYLAND MOVIE CENSORSHIP LAW
UNCONSTITUTIONAL IN FREEDMAN, THE COURT STATED: 

     "HOW OR WHETHER MARYLAND IS TO INCORPORATE THE REQUIRED

  PROCEDURAL SAFEGUARDS IN THE STATUTORY SCHEME IS, OF COURSE, FOR

  THE STATE TO DECIDE."  380 U.S.,AT 60. 

WITH ALL DEFERENCE, I WOULD SUGGEST THAT THE DECISION WHETHER AND HOW
THE CUSTOMS OBSCENITY LAW SHOULD BE REWRITTEN IS A TASK FOR THE
CONGRESS, NOT THIS COURT.  CONGRESS MIGHT DECIDE TO WRITE AN ENTIRELY
DIFFERENT LAW, OR EVEN DECIDE THAT THE NATION CAN WELL LIVE WITHOUT
SUCH A STATUTE. 

THE PLURALITY CLAIMS TO FIND POWER TO REWRITE THE CUSTOMS OBSCENITY
LAW IN THE STATUTE'S LEGISLATIVE HISTORY AND IN THE RULE THAT STATUTES
SHOULD BE CONSTRUED TO AVOID CONSTITUTIONAL QUESTIONS.  ANTE, AT 373. 
I AGREE, OF COURSE, THAT STATUTES SHOULD BE CONSTRUED TO UPHOLD THIER
CONSTITUTIONALITY WHEN THIS CAN BE DONE WITHOUT MISUSING THE
LEGISLATIVE HISTORY AND SUBSTITUTING A NEW STATUTE FOR THE ONE THAT
CONGRESS HAS PASSED.  BUT THIS RULE OF CONSTRUCTION DOES NOT JUSTIFY
THE PLURALITY'S ACTING LIKE A LEGISLATURE OR ONE OF ITS COMMITTEES AND
REDRAFTING THE STATUTE IN A MANNER NOT SUPPORTED BY THE DELIBERATIONS
OF CONGRESS OR BY OUR PREVIOUS DECISIONS IN CENSORSHIP CASES. 

THE PLURALITY RELIES PRINCIPALLY ON STATEMENTS MADE BY SENATORS
SWANSON AND PITTMAN WHEN THE CUSTOMS OBSCENITY LEGISLATION WAS UNDER
DISCUSSION ON THE SENATE FLOOR.  THE DEFECT IN THE COURT'S RELIANCE IS
THAT THE SENATORS' STATEMENTS DID NOT REFER TO THE VERSION OF THE LAW
THAT WAS PASSED BY CONGRESS.  SENATOR PITTMAN, OBJECTING TO ONE OF THE
VERY FIRST DRAFTS OF THE LAW, SAID: 

"WHY WOULD IT NOT PROTECT THE PUBLIC ENTIRELY IF WE WERE TO PROVIDE
FOR THE SEIZURE AS NOW PROVIDED AND THAT THE PROPERTY SHOULD BE HELD BY
THE OFFICER SEIZING, AND THAT HE SHOULD IMMEDIATELY REPORT TO THE
NEAREST UNITED STATES DISTRICT ATTORNEY HAVING AUTHORITY UNDER THE LAW
TO PROCEED TO CONFISCATE.  . . ."  72 CONG.REC.  5240. 

A FEW MINUTES LATER SENATOR WALSH OF MONTANA ANNOUNCED HE WOULD
PROPOSE AN AMENDMENT "THAT WOULD MEET THE SUGGESTION MADE BY THE
SENATOR FROM NEVADA (MR. PITTMAN).  . . ."  ID., AT 5421. 

  AS SENATOR WALSH FIRST PRESENTED HIS AMENDMENT IT READ: "UPON THE
APPEARANCE OF ANY SUCH BOOK

  OR OTHER MATTER AT ANY CUSTOMS OFFICE THE COLLECTOR THEREOF SHALL
IMMEDIATELY TRANSMIT

  INFORMATION THEREOF TO THE DISTRICT ATTORNEY OF THE DISTRICT IN
WHICH SUCH PORT IS SITUATED,

  WHO SHALL IMMEDIATELY INSTITUTE PROCEEDINGS IN THE DISTRICT COURT
FOR THE FORFEITURE AND

  DESTRUCTION OF THE SAME.  . . ."  IBID. SENATOR SWANSON WAS
REFERRING TO THIS FIRST DRAFT OF THE WALSH AMENDMENT WHEN HE MADE THE
REMARKS CITED BY THE PLURALITY THAT OFFICERS WOULD BE REQUIRED TO GO TO
COURT "IMMEDIATELY" AND THAT THERE WOULD BE A "PROMPT" DECISION ON THE
MATTER.  ID., AT 5422, 5424.  BUT JUST AFTER SWANSON'S STATEMENT THE
WALSH AMENDMENT WAS CHANGED ON THE SENATE FLOOR TO READ AS FOLLOWS: 

"UPON THE SEIZURE OF SUCH BOOK OR MATTER THE COLLECTOR SHALL
TRANSMIT INFORMATION THEREOF TO THE DISTRICT ATTORNEY OF THE DISTRICT
IN WHICH IS SITUATED THE OFFICE AT WHICH SUCH SEIZURE HAS TAKEN PLACE,
WHO SHALL INSTITUTE PROCEEDINGS IN THE DISTRICT COURT FOR THE
FORFEITURE, CONFISCATION, AND DESTRUCTION OF THE BOOK OR MATTER
SEIZED."  ID., AT 5424.  THUS THE REQUIREMENT THAT OFFICERS GO TO COURT
"IMMEDIATELY" WAS DROPPED IN THE SECOND DRAFT OF THE WALSH AMENDMENT,
AND THE LANGUAGE OF THIS SECOND DRAFT WAS ENACTED INTO LAW.  THE
COMMENTS QUOTED AND RELIED UPON BY THE PLURALITY WERE MADE WITH
REFERENCE TO AN AMENDMENT DRAFT THAT WAS NOT ADOPTED BY THE SENATE AND
IS NOT NOW THE LAW.  THIS LEGISLATIVE HISTORY JUST REFERRED TO PROVIDES
NO SUPPORT THAT I CAN SEE FOR THE COURT'S ACTION TODAY.  TO THE EXTENT
THAT THESE DEBATES TELL US ANYTHING ABOUT THE SENATE'S ATTITUDE TOWARD
PROMPT JUDICIAL REVIEW OF CENSORSHIP DECISIONS THEY SHOW SIMPLY THAT
THE ISSUE WAS PUT BEFORE THE SENATE BUT THAT IT DID NOT CHOOSE TO
REQUIRE PROMPT JUDICIAL REVIEW.     THE PLURALITY CONCEDES THAT IN
PREVIOUS CENSORSHIP CASES WE HAVE CONSIDERED THE VALIDITY OF THE
STATUTES BEFORE US ON THEIR FACE, AND WE HAVE REFUSED TO REWRITE THEM. 
ALTHOUGH SOME OF THESE CASES DID INVOLVE STATE STATUTES, IN BLOUNT V.
RIZZI, 400 U.S. 410 (1971), WE SPECIFICALLY DECLINED TO ATTEMPT TO SAVE
A FEDERAL OBSCENITY MAIL-BLOCKING STATUTE BY REDRAFTING IT.  THE COURT
THERE PLAINLY DECLARED:  "IT IS FOR CONGRESS, NOT THIS COURT, TO
REWRITE THE STATUTE."  ID., AT 419.  THE PLURALITY IN ITS OPINION NOW
SEEKS TO DISTINGUISH BLOUNT BECAUSE SAVING THE MAIL-BLOCKING STATUTE BY
REQUIRING PROMPT JUDICIAL REVIEW "WOULD HAVE REQUIRED ITS COMPLETE
REWRITING IN A MANNER INCONSISTENT WITH THE EXPRESSED INTENTIONS OF
SOME OF ITS AUTHORS."  ANTE, AT 369.  BUT THE ONLY "EXPRESSED
INTENTION" CITED BY THE PLURALITY TO SUPPORT THIS ARGUMENT IS TESTIMONY
BY THE POSTMASTER GENERAL THAT HE WANTED TO FORESTALL JUDICIAL REVIEW
PENDING COMPLETION OF ADMINISTRATIVE MAIL-BLOCKING PROCEEDINGS.  ANTE,
AT 370.  THAT INSIFNIFICANT PIECE OF LEGISLATIVE HISTORY WOULD HAVE
POSED NO OBSTACLE TO THE COURT'S SAVING THE MAIL-BLOCKING STATUTE BY
REQUIRING PROMPT JUDICIAL REVIEW AFTER PROMPT ADMINISTRATIVE
PROCEEDINGS.  YET THE COURT IN BLOUNT PROPERLY REFUSED TO UNDERTAKE
SUCH A LEGISLATIVE TASK, JUST AS IT DID IN THE CASES INVOLVING STATE
CENSORSHIP STATUTES. 

THE PLURALITY ALSO PURPORTS TO JUSTIFY ITS JUDICIAL LEGISLATION BY
POINTING TO THE SEVERABILITY PROVISIONS CONTAINED IN 19 U.S.C. 1652. 
IT IS DIFFICULT TO SEE HOW THIS DISTINGUISHES EARLIER CASES, SINCE THE
STATUTES STRUCK DOWN IN FREEDMAN V. MARYLAND, SUPRA, AND TEITEL FILM
CORP. V. CUSACK, 390 U.S. 139 (1968), ALSO CONTAINED SEVERABILITY
PROVISIONS.  SEE MD. ANN. CODE, ART. 66A SEC. 24 (1957), MUNICIPAL CODE
OF CHICAGO SEC. 155-7.4 (1961). 

THE PLURALITY IS NOT ENTIRELY CLEAR WHETHER THE TIME LIMITS IT
IMPOSES STEM FROM THE LEGISLATIVE HISTORY OF THE CUSTOMS LAW OR FROM
THE DEMANDS OF THE FIRST AMENDMENT.  AT ONE POINT WE ARE TOLD THAT 14
DAYS AND 60 DAYS ARE NOT THE "ONLY CONSTITUTIONALLY PERMISSIBLE TIME
LIMITS," AND THAT IF CONGRESS IMPOSES NEW RULES THIS WOULD PRESENT A
NEW CONSTITUTIONAL QUESTION.  ANTE, AT 374.  THIS STRONGLY SUGGESTS THE
TIME LIMITS STEM FROM THE COURT'S POWER TO "INTERPRET" OR "CONSTRUE"
FEDERAL STATUTES, NOT FROM THE CONSTITUTION.  BUT SINCE THE COURT'S
ACTION TODAY HAS NO SUPPORT IN THE LEGISLATIVE HISTORY OR THE WORDING
OF THE STATUTE, IT APPEARS MUCH MORE LIKELY THAT THE TIME LIMITS ARE
DERIVED FROM THE FIRST AMENDMENT ITSELF.  IF THE PLURALITY IS REALLY
DRAWING ITS RULES FROM THE FRIST AMENDMENT, I FIND THE PROCESS OF
DERIVATION BOTH PECULIAR AND DISTURBING.  THE RULES ARE NOT DERIVED BY
CONSIDERING WHAT THE FIRST AMENDMENT DEMANDS, BUT BY SURVEYING
PREVIOUSLY LITIGATED CASES AND THEN GUESSING WHAT LIMITS WOULD NOT POSE
AN "UNDUE HARDSHIP" ON THE GOVERNMENT AND THE LOWER FEDERAL COURTS. 
ANTE, AT 373.  SCANT ATTENTION IS GIVEN TO THE FIRST AMENDMENT RIGHTS
OF PERSONS ENTERING THE COUNTRY.  CERTAINLY IT GIVES LITTLE COMFORT TO
AN AMERICAN BRINGING A BOOK HOME TO COLORADO OR ALABAMA FOR PERSONAL
READING TO BE INFORMED WITHOUT EXPLANATION THAT A 74-DAY DELAY AT NEW
YORK HARBOR IS NOT "UNDUE."  FACED WITH SUCH LENGTHY LEGAL PROCEEDINGS
AND THE NEED TO HIRE A LAWYER FAR FROM HOME, HE IS LIKELY TO BE COERCED
INTO GIVING UP HIS FIRST AMENDMENT RIGHTS.  THUS THE WHIMS OF CUSTOMS
CLERKS OR THE CONGESTION OF THEIR BUSINESS WILL DETERMINE WHAT
AMERICANS MAY READ. 

I WOULD SIMPLY LEAVE THIS STATUTE AS THE CONGRESS WROTE IT AND
AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

I DO NOT UNDERSTAND WHY THE PLURALITY FEELS SO FREE TO ABANDON
PREVIOUS PRECEDENTS PROTECTING THE CHERISHED FREEDOMS OF PRESS AND
SPEECH.  I CANNOT, OF COURSE, BELIEVE IT IS BOWING TO POPULAR PASSIONS
AND WHAT IT PERCEIVES TO BE THE TEMPER OF THE TIMES.  AS I HAVE SAID
BEFORE, "OUR CONSTITUTION WAS NOT WRITTEN IN THE SANDS TO BE WASHED
AWAY BY EACH WAVE OF NEW JUDGES BLOWN IN BY EACH SUCCESSIVE POLITICAL
WIND THAT BRINGS NEW POLITICAL ADMINISTRATIONS INTO TEMPORARY POWER." 
TURNER V. UNITED STATES, 396 U.S. 398, 426 (1970) (BLACK, J.,
DISSENTING).  IN ANY SOCIETY THERE COME TIMES WHEN THE PUBLIC IS SEIZED
WITH FEAR AND THE IMPORTANCE OF BASIC FREEDOMS IS EASILY FORGOTTEN.  I
HOPE, HOWEVER, "THAT IN CALMER TIMES, WHEN PRESENT PRESSURES, PASSIONS
AND FEARS SUBSIDE, THIS OR SOME LATER COURT WILL RESTORE THE FIRST
AMENDMENT LIBERTIES TO THE HIGH PREFERRED PLACE WHERE THEY BELONG IN A
FREE SOCIETY."  DENNIS V. UNITED STATES, 341 U.S. 494, 581 (1951)
(BLACK, J., DISSENTING). 

/2/ (THIS OPINION APPLIES ALSO TO NO. 534, UNITED STATES V. REIDEL,
ANTE, P. 351.) 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON AND ROGER
A. PAULEY. 

STANLEY FLEISHMAN ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS SAM ROSENWEIN. 
..END :





RICHARDSON V. PERALES, 402 U.S. 389 


       RICHARDSON, SECRETARY OF HEALTH, EDUCATION, AND WELFARE V.

           PERALES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 108.  ARGUED JANUARY 13, 1971-- DECIDED MAY 3, 1971 


WRITTEN REPORTS BY PHYSICIANS WHO HAVE EXAMINED CLAIMANT FOR
DISABILITY INSURANCE BENEFITS UNDER SOCIAL SECURITY ACT CONSTITUTE
"SUBSTANTIAL EVIDENCE" SUPPORTING A NONDISABILITY FINDING WITHIN THE
STANDARD OF SEC. 205(G) OF THE ACT, NOTWITHSTANDING THE REPORTS'
HEARSAY CHARACTER, THE ABSENCE OF CROSS-EXAMINATION (THROUGH CLAIMANT'S
FAILURE TO EXERCISE HIS SUBPOENA RIGHTS), AND THE DIRECTLY OPPOSING
TESTIMONY BY THE CLAIMANT AND HIS MEDICAL WITNESS; AND PROCEDURE
FOLLOWED UNDER ACT DOES NOT VIOLATE DUE PROCESS REQUIREMENTS.  PP. 399
410. 

412 F.2D 44 AND 416 F.2D 1250, REVERSED AND REMANDED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND HARLAN, STEWART, WHITE, AND MARSHALL, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, IN WHICH BLACK AND BRENNAN, JJ.,
JOINED, POST, P. 411. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

IN 1966 PEDRO PERALES, A SAN ANTONIO TRUCK DRIVER, THEN AGED 34,
HEIGHT 5 FEET 11 INCHES, WEIGHT ABOUT 220 POUNDS, FILED A CLAIM FOR
DISABILITY INSURANCE BENEFITS UNDER THE SOCIAL SECURITY ACTS.  SECTIONS
216(I)(1), 68 STAT. 1080, AND 223(D)(1), 81 STAT. 868, OF THAT ACT, 42
U.S.C. 416(I)(1) AND 42 U.S.C. 423(D)(1) (1964 ED., SUPP. V), BOTH
PROVIDE THAT THE TERM "DISABILITY" MEANS "INABILITY TO ENGAGE IN ANY
SUBSTANTIAL GAINFUL ACTIVITY BY REASON OF ANY MEDICALLY DETERMINABLE
PHYSICAL OR MENTAL IMPAIRMENT WHICH.  . . ."  /1/  SECTION 205(G), 42
U.S.C. 405(G), RELATING TO JUDICIAL REVIEW, STATES, "THE FINDINGS OF
THE SECRETARY AS TO ANY FACT, IF SUPPORTED BY SUBSTANTIAL EVIDENCE,
SHALL BE CONCLUSIVE.  . . ." 

THE ISSUE HERE IS WHETHER PHYSICIANS' WRITTEN REPORTS OF MEDICAL
EXAMINATIONS THEY HAVE MADE OF A DISABILITY CLAIMANT MAY CONSTITUTE
"SUBSTANTIAL EVIDENCE" SUPPORTIVE OF A FINDING OF NONDISABILITY, WITHIN
THE SEC. 205(G) STANDARD, WHEN THE CLAIMANT OBJECTS TO THE
ADMISSIBILITY OF THOSE REPORTS AND WHEN THE ONLY LIVE TESTIMONY IS
PRESENTED BY HIS SIDE AND IS CONTRARY TO THE REPORTS. 

        I 

IN HIS CLAIM PERALES ASSERTED THAT ON SEPTEMBER 29, 1965, HE BECAME
DISABLED AS A RESULT OF AN INJURY TO HIS BACK SUSTAINED IN LIFTING AN
OBJECT AT WORK.  HE WAS SEEN BY A NEUROSURGEON, DR. RALPH A. MUNSLOW,
WHO FIRST RECOMMENDED CONSERVATIVE TREATMENT.  WHEN THIS PROVIDED NO
RELIEF, MYELOGRAPHY WAS PERFORMED AND SURGERY FOR A POSSIBLE PROTRUDED
INTERVERTEBRAL DISC AT L-5 WAS ADVISED.  THE PATIENT AT FIRST HESITATED
ABOUT SURGERY AND APPEARED TO IMPROVE.  ON RECURRENCE OF PAIN, HOWEVER,
HE CONSENTED TO THE RECOMMENDED PROCEDURE.  DR. MUNSLOW OPERATED ON
NOVEMBER 23.  THE SURGICAL NOTE IS IN THE MARGIN.  /2/  NO DISC
PROTRUSION OR OTHER DEFINITIVE PATHOLOGY WAS IDENTIFIED AT SURGERY. 
THE POST-OPERATIVE DIAGNOSIS WAS:  "NERVE ROOT COMPRESSION SYNDROME,
LEFT."  THE PATIENT WAS DISCHARGED FROM DR. MUNSLOW'S CARE ON JANUARY
25, 1966, WITH A FINAL DIAGNOSIS OF "NEURITIS, LUMBAR, MILD." 

MR. PERALES CONTINUED TO COMPLAIN, BUT DR. MUNSLOW AND DR. MORRIS H.
LAMPERT, A NEUROLOGIST CALLED IN CONSULTATION, WERE STILL UNABLE TO
FIND ANY OBJECTIVE NEUROLOGICAL EXPLANATION FOR HIS COMPLAINTS.  DR.
MUNSLOW ADVISED THAT HE RETURN TO WORK. 

IN APRIL 1966 PERALES CONSULTED DR. MAX MORALES, JR., A GENERAL
PRACTITIONER OF SAN ANTONIO.  DR. MORALES HOSPITALIZED THE PATIENT FROM
APRIL 15 TO MAY 2.  HIS FINAL DISCHARGE DIAGNOSIS WAS:  "BACK SPRAIN,
LUMBO-SACRAL SPINE." 

PERALES THEN FILED HIS CLAIM.  AS REQUIRED BY SEC. 221 OF THE ACT,
42 U.S.C. 421, THE CLAIM WAS REFERRED TO THE STATE AGENCY FOR
DETERMINATION.  THE AGENCY OBTAINED THE HOSPITAL RECORDS AND A REPORT
FROM DR. MORALES.  THE REPORT SET FORTH NO PHYSICAL FINDINGS OR
LABORATORY STUDIES, BUT THE DOCTOR AGAIN GAVE AS HIS DIAGNOSIS:  "BACK
SPRAIN-- LUMBO-SACRAL SPINE," THIS TIME "MODERATELY SEVERE," WITH
"RUPTURED DISK NOT RULED OUT."  THE AGENCY ARRANGED FOR A MEDICAL
EXAMINATION, AT NO COST TO THE PATIENT, BY DR. JOHN H. LANGSTON, AN
ORTHOPEDIC SURGEON.  THIS WAS DONE MAY 25. 

DR. LANGSTON'S ENSUING REPORT TO THE DIVISION OF DISABILITY
DETERMINATION WAS DEVASTATING FROM THE CLAIMANT'S STANDPOINT.  THE
DOCTOR REFERRED TO PERALES' BEING "ON CRUTCHES OR CANE" SINCE HIS
INJURY.  HE NOTED A SLIGHTLY EDEMATOUS CONDITION IN THE LEGS,
ATTRIBUTED TO "INACTIVITY AND SITTING AROUND"; SLIGHT TENDERNESS IN
SOME OF THE MUSCLES OF THE DORSAL SPINE, THOUGHT TO BE DUE TO POOR
POSTURE; AND "A VERY MILD SPRAIN (OF THOSE MUSCLES) WHICH WOULD RESOLVE
WERE HE ACTUALLY TO GET A LITTLE EXERCISE AND MOVE."  APART FROM THIS,
AND FROM THE RESIDUALS OF THE PANTOPAQUE MYELOGRAPHY AND
HEMILAMINECTOMY, DR. LANGSTON FOUND NO ABNORMALITIES OF THE LUMBAR
SPINE.  OTHERWISE, HE DESCRIBED PERALES AS A "BIG PHYSICAL HEALTHY
SPECIMEN . . . OBVIOUSLY HOLDING BACK AND LIMITING ALL OF HIS MOTIONS,
INTENTIONALLY.  . . . HIS UPPER EXTREMITIES, THOUGH THEY ARE COMPLETELY
UNINVOLVED BY HIS INJURY, HE HOLDS VERY RIGIDLY AS THOUGH HE WERE
SEMIPARALYZED.  HIS REACH AND GRASP ARE VERY LIMITED BUT INTENTIONALLY
SO. . . . NEUROLOGICAL EXAMINATION IS ENTIRELY NORMAL TO DETAILED
SENSORY EXAMINATION WITH PINWHEEL, VIBRATORY SENSATIONS, AND LIGHT
TOUCH.  REFLEXES ARE VERY ACTIVE AND THERE IS NO ATROPHY ANYWHERE." 
THE ORTHOPEDIST'S SUMMARIZATION, IMPRESSION, AND PROGNOSIS ARE IN THE
MARGIN.  /3/ 

THE STATE AGENCY DENIED THE CLAIM.  PERALES REQUESTED
RECONSIDERATION.  DR. MORALES SUBMITTED A FURTHER REPORT TO THE AGENCY
AND AN OPINION TO THE CLAIMANT'S ATTORNEY.  THIS OUTLINED THE SURGERY
AND HOSPITALIZATIONS AND HIS OWN CONSERVATIVE AND CONTINUING TREATMENT
OF THE PATIENT, THE MEDICINES PRESCRIBED, THE ADMINISTRATION OF
ULTRASOUND THERAPY, AND THE PATIENT'S CONSTANT COMPLAINTS.  THE DOCTOR
CONCLUDED THAT THE PATIENT HAD NOT MADE A COMPLETE RECOVERY FROM HIS
SURGERY, THAT HE WAS NOT MALINGERING, THAT HIS INJURY WAS PERMANENT,
AND THAT HE WAS TOTALLY AND PERMANENTLY DISABLED.  /4/  HE RECOMMENDED
AGAINST ANY FURTHER SURGERY. 

THE STATE AGENCY THEN ARRANGED FOR AN EXAMINATION BY DR. JAMES M.
BAILEY, A BOARD-CERTIFIED PSYCHIATRIST WITH A SUBSPECIALTY IN
NEUROLOGY.  DR. BAILEY'S REPORT TO THE AGENCY ON AUGUST 30, 1966,
CONCLUDED WITH THE FOLLOWING DIAGNOSIS: 

     "PARANOID PERSONALITY, MANIFESTED BY HOSTILITY, FEELINGS OF

  PERSECUTION AND LONG HISTORY OF STRAINED INTERPERSONAL

  RELATIONSHIPS. 

     "I DO NOT FEEL THAT THIS PATIENT HAS A SEPARATE PSYCHIATRIC

  ILLNESS AT THIS TIME.  IT APPEARS THAT HIS PERSONALITY IS

  CONDUCTIVE TO ANGER, FRUSTRATIONS, ETC." 

THE AGENCY AGAIN REVIEWED THE FILE.  THE BUREAU OF DISABILITY
INSURANCE OF THE SOCIAL SECURITY ADMINISTRATION MADE ITS INDEPENDENT
REVIEW.  THE REPORT AND OPINION OF DR. MORALES, AS THE CLAIMANT'S
ATTENDING PHYSICIAN, WERE CONSIDERED, AS WERE THOSE OF THE OTHER
EXAMINING PHYSICIANS.  THE CLAIM WAS AGAIN DENIED. 

PERALES REQUESTED A HEARING BEFORE A HEARING EXAMINER.  THE AGENCY
THEN REFERRED THE CLAIMANT TO DR. LANGSTON AND TO DR. RICHARD H.
MATTSON FOR ELECTROMYOGRAPHY STUDIES.  DR. MATTSON'S NOTES REFERRED TO
"SOME CHRONIC OR PAST DISTURBANCE OF FUNCTION IN THE NERVE SUPPLY"  TO
THE LEFT AND RIGHT ANTERIOR TIBIALIS MUSCLES AND RIGHT EXTENSOR
DIGITORIUM BREVIS MUSCLES THAT WAS "STRONGLY SUGGESTIVE OF LACK OF
MAXIMAL EFFORT" AND WAS "THE KIND OF FINDING THAT IS TYPICALLY
ASSOCIATED WITH A FUNCTIONAL OR PSYCHOGENIC COMPONENT TO WEAKNESS." 
THERE WAS NO EVIDENCE OF "ANY ACTIVE PROCESS EFFECTING (SIC) THE NERVES
AT PRESENT."  DR. LANGSTON ADVISED THE AGENCY THAT DR. MATTSON'S
FINDING OF "VERY POOR EFFORT" VERIFIED WHAT DR. LANGSTON HAD FOUND ON
THE EARLIER PHYSICAL EXAMINATION. 

THE REQUESTED HEARING WAS SET FOR JANUARY 12, 1967, IN SAN ANTONIO. 
WRITTEN NOTICE THEREOF WAS GIVEN THE CLAIMANT WITH A COPY TO HIS
ATTORNEY.  THE NOTICE CONTAINED A DEFINITION OF DISABILITY, ADVISED THE
CLAIMANT THAT HE SHOULD BRING ALL MEDICAL AND OTHER EVIDENCE NOT
ALREADY PRESENTED, AFFORDED HIM AN OPPORTUNITY TO EXAMINE ALL
DOCUMENTARY EVIDENCE ON FILE PRIOR TO THE HEARINGS, AND TOLD HIM THAT
HE MIGHT BRING HIS OWN PHYSICIAN OR OTHER WITNESSES AND BE REPRESENTED
AT THE HEARING BY A LAWYER. 

THE HEARING TOOK PLACE AT THE TIME DESIGNATED.  A SUPPLEMENTAL
HEARING WAS HELD MARCH 31.  THE CLAIMANT APPEARED AT THE FIRST HEARING
WITH HIS ATTORNEY AND WITH DR. MORALES.  THE ATTORNEY FORMALLY OBJECTED
TO THE INTRODUCTION OF THE SEVERAL REPORTS OF DRS. LANGSTON, BAILEY,
MATTSON, AND LAMPERT, AND OF THE HOSPITAL RECORDS.  VARIOUS GROUNDS OF
OBJECTION WERE ASSERTED, INCLUDING HEARSAY, ABSENCE OF AN OPPORTUNITY
FOR CROSS-EXAMINATION, ABSENCE OF PROOF THE PHYSICIANS WERE LICENSED TO
PRACTICE IN TEXAS, FAILURE TO DEMONSTRATE THAT THE HOSPITAL RECORDS
WERE PROVED UNDER THE BUSINESS RECORDS ACT, AND THE CONCLUSORY NATURE
OF THE REPORTS.  THESE OBJECTIONS WERE OVERRULED AND THE REPORTS AND
HOSPITAL RECORDS WERE INTRODUCED.  THE REPORTS OF DR. MORALES AND OF
DR. MUNSLOW WERE THEN SUBMITTED BY THE CLAIMANT'S COUNSEL AND
ADMITTED. 

AT THE TWO HEARINGS ORAL TESTIMONY WAS SUBMITTED BY CLAIMANT
PERALES, BY DR. MORALES, BY A FORMER FELLOW EMPLOYEE OF THE CLAIMANT,
BY A VOCATIONAL EXPERT, AND BY DR. LEWIS A. LEAVITT, A PHYSICIAN BOARD
CERTIFIED IN PHYSICAL MEDICINE AND REHABILITATION, AND CHIEF OF, AND
PROFESSOR IN, THE DEPARTMENT OF PHYSICAL MEDICINE AT BAYLOR UNIVERSITY
COLLEGE OF MEDICINE.  DR. LEAVITT WAS CALLED BY THE HEARING EXAMINER AS
AN INDEPENDENT "MEDICAL ADVISER," THAT IS, AS AN EXPERT WHO DOES NOT
EXAMINE THE CLAIMANT BUT WHO HEARS AND REVIEWS THE MEDICAL EVIDENCE AND
WHO MAY OFFER AN OPINION.  THE ADVISER IS PAID A FEE BY THE
GOVERNMENT.  THE CLAIMANT, THROUGH HIS COUNSEL, OBJECTED TO ANY
TESTIMONY BY DR. LEAVITT NOT BASED UPON EXAMINATION OR UPON A
HYPOTHETICAL.  DR. LEAVITT TESTIFIED OVER THIS OBJECTION AND WAS CROSS
EXAMINED BY THE CLAIMANT'S ATTORNEY.  HE STATED THAT THE CONSENSUS OF
THE VARIOUS MEDICAL REPORTS WAS THAT PERALES HAD A MILD LOW-BACK
SYNDROME OF MUSCULO-LIGAMENTOUS ORIGIN. 

THE HEARING EXAMINER, IN RELIANCE UPON THE SEVERAL MEDICAL REPORTS
AND THE TESTIMONY OF DR. LEAVITT, OBSERVED IN HIS WRITTEN DECISION,
"THERE IS OBJECTIVE MEDICAL EVIDENCE IN IMPAIRMENT WHICH THE HEAVY
PREPONDERANCE OF THE EVIDENCE INDICATES TO BE OF MILD SEVERITY.  . . .
TAKEN ALTOGETHER, THE HEARING EXAMINER IS OF THE CONCLUSION THAT THE
CLAIMANT HAS NOT MET THE BURDEN OF PROOF."  HE SPECIFICALLY FOUND THAT
THE CLAIMANT "IS SUFFERING FROM A LOW BACK SYNDROME OF MUSCULO
LIGAMENTOUS ORIGIN, AND OF MILD SEVERITY"; THAT WHILE HE "HAS AN
EMOTIONAL OVERLAY TO HIS MEDICAL IMPAIRMENT IT DOES NOT REQUIRE
PSYCHIATRIC TREATMENT AND IS OF MINIMAL CONTRIBUTION, IF ANY, TO HIS
MEDICAL IMPAIRMENT OR TO HIS GENERAL ABILITY TO ENGAGE IN SUBSTANTIAL
GAINFUL ACTIVITY"; THAT "(NEITHER HIS MEDICAL IMPAIRMENT NOR HIS
EMOTIONAL OVERLAY, SINGLY OR IN COMBINATION, CONSTITUTE A DISABILITY AS
DEFINED" IN THE ACT; AND THAT THE CLAIMANT IS CAPABLE OF ENGAGING AS A
SALESMAN IN WORK IN WHICH HE HAD PREVIOUSLY ENGAGED, OF WORKING AS A
WATCHMAN OR GUARD WHERE STRENUOUS ACTIVITY IS NOT REQUIRED, OR AS A
TICKET-TAKER OR JANITOR.  THE HEARING EXAMINER'S DECISION, THEN, WAS
THAT THE CLAIMANT WAS NOT ENTITLED TO A PERIOD OF DISABILITY OR TO
DISABILITY INSURANCE BENEFITS. 

IT IS TO BE NOTED AT THIS POINT THAT SEC. 205(D) OF THE ACT, 42
U.S.C. 405(D), PROVIDES THAT THE SECRETARY HAS POWER TO ISSUE SUBPOENAS
REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES AND THE PRODUCTION
OF EVIDENCE AND THAT THE SECRETARY'S REGULATIONS, AUTHORIZED BY SEC.
205(A), 42 U.S.C. 405(A), PROVIDE THAT A CLAIMANT MAY REQUEST THE
ISSUANCE OF SUBPOENAS, 20 CFR 404.926.  PERALES, HOWEVER, WHO WAS
REPRESENTED BY COUNSEL, DID NOT REQUEST SUBPOENAS FOR EITHER OF THE TWO
HEARINGS. 

THE CLAIMANT THEN MADE A REQUEST FOR REVIEW BY THE APPEALS COUNCIL
AND SUBMITTED AS SUPPLEMENTAL EVIDENCE A JUDGMENT DATED JUNE 2, 1967,
IN PERALES' FAVOR AGAINST AN INSURANCE COMPANY FOR WORKMEN'S
COMPENSATION BENEFITS AGGREGATING $11,665.84, PLUS MEDICAL AND RELATED
EXPENSES, AND A MEDICAL REPORT LETTER DATED DECEMBER 28, 1966, BY DR.
COYLE W. WILLIAMS, APPARENTLY WRITTEN IN SUPPORT OF A WELFARE CLAIM
MADE BY PERALES.  IN HIS LETTER THE DOCTOR NOTED AN ESSENTIALLY
NEGATIVE NEUROLOGICAL AND PHYSICAL EXAMINATION EXCEPT FOR TENDERNESS IN
THE LUMBAR AREA AND LIMITED STRAIGHT LEG RAISING.  HE OBSERVED, "I
CANNOT EXPLAIN ALL HIS SYMPTOMS ON A PHYSICAL BASIS.  I WOULD RECOMMEND
HE WOULD RE-CONDITION HIMSELF AND RETURN TO WORK.  MY ESTIMATION, HE
HAS A 15% PERMANENT PARTIAL DISABILITY THE BODY AS WHOLE."  THE APPEALS
COUNCIL RULED THAT THE DECISION OF THE HEARING EXAMINER WAS CORRECT. 

UPON THIS ADVERSE RULING THE CLAIMANT INSTITUTED THE PRESENT ACTION
FOR REVIEW PURSUANT TO SEC. 205(G).  EACH SIDE MOVED FOR SUMMARY
JUDGMENT ON THE ADMINISTRATIVE TRANSCRIPT.  THE DISTRICT COURT STATED
THAT IT WAS RELUCTANT TO ACCEPT AS SUBSTANTIAL EVIDENCE THE OPINIONS OF
MEDICAL EXPERTS SUBMITTED IN THE FORM OF UNSWORN WRITTEN REPORTS, THE
ADMISSION OF WHICH WOULD HAVE THE EFFECT OF DENYING THE OPPOSITION AN
OPPORTUNITY FOR CROSS-EXAMINATION; THAT THE OPINION OF A DOCTOR WHO HAD
NEVER EXAMINED THE CLAIMANT IS ENTITLED TO LITTLE OR NO PROBATIVE
VALUE, ESPECIALLY WHEN OPPOSED BY SUBSTANTIAL EVIDENCE INCLUDING THE
ORAL TESTIMONY OF AN EXAMINING PHYSICIAN; AND THAT WHAT WAS BEFORE THE
COURT AMOUNTED TO HEARSAY UPON HEARSAY.  THE CASE WAS REMANDED FOR A
NEW HEARING BEFORE A DIFFERENT EXAMINER.  PERALES V. SECRETARY, 288
F.SUPP.  313 (WD TEX. 1968).  ON APPEAL THE FIFITH CIRCUIT NOTED THE
ABSENCE OF ANY REQUEST BY THE CLAIMANT FOR SUBPOENAS AND HELD THAT,
HAVING THIS RIGHT AND NOT EXERCISING IT, HE WAS NOT IN A POSITION TO
COMPLAIN THAT HE HAD BEEN DENIED THE RIGHTS OF CONFRONTATION AND OF
CROSS-EXAMINATION.  IT HELD THAT THE HEARSAY EVIDENCE IN THE CASE WAS
ADMISSIBLE UNDER THE ACT; THAT, SPECIFICALLY, THE WRITTEN REPORTS OF
THE PHYSICIANS WERE ADMISSIBLE IN THE ADMINISTRATIVE HEARING; THAT DR.
LEAVITT'S TESTIMONY ALSO WAS ADMISSIBLE; BUT THAT ALL THIS EVIDENCE
TOGETHER DID NOT CONSTITUTE SUBSTANTIAL EVIDENCE WHEN IT WAS
CONTRADICTED BY EVIDENCE FROM THE ONLY LIVE WITNESSES.  COHEN V.
PERALES, 412 F.2D 44 (1969).     ON REHEARING, THE COURT OF APPEALS
OBSERVED THAT IT DID NOT MEAN BY ITS OPINION THAT UNCORROBORATED
HEARSAY COULD NEVER BE SUBSTANTIAL EVIDENCE SUPPORTIVE OF A HEARING
EXAMINER'S DECISION ADVERSE TO A CLAIMANT.  IT EMPHASIZED THAT ITS
RULING THAT UNCORROBORATED HEARSAY COULD NOT CONSTITUTE SUBSTANTIAL
EVIDENCE WAS APPLICABLE ONLY WHEN THE CLAIMANT HAD OBJECTED AND WHEN
THE HEARSAY WAS DIRECTLY CONTRADICTED BY THE TESTIMONY OF LIVE MEDICAL
WITNESSES AND BY THE CLAIMANT IN PERSON.  COHEN V. PERALES, 416 F.2D
1250 (1969).  CERTIORARI WAS GRANTED IN ORDER TO REVIEW AND RESOLVE
THIS IMPORTANT PROCEDURAL DUE PROCESS ISSUE.  397 U.S. 1035 (1970). 
    II 

WE THEREFORE ARE PRESENTED WITH THE NOT UNCOMMON SITUATION OF
CONFLICTING MEDICAL EVIDENCE.  THE TRIER OF FACT HAS THE DUTY TO
RESOLVE THAT CONFLICT.  WE HAVE, ON THE ONE HAND, AN ABSENCE OF
OBJECTIVE FINDINGS, AN EXPRESSED SUSPICION OF ONLY FUNCTIONAL
COMPLAINTS, OF MALINGERING, AND OF THE PATIENT'S UNWILLINGNESS TO DO
ANYTHING ABOUT REMEDYING AN UNPROVABLE SITUATION.  WE HAVE, ON THE
OTHER HAND, THE CLAIMANT'S AND HIS PERSONAL PHYSICIAN'S EARNEST PLEAS
THAT SIGNIFICANT AND DISABLING RESIDUALS FROM THE MISHAP OF SEPTEMBER
1965 ARE INDEED PRESENT. 

THE ISSUE REVOLVES, HOWEVER, AROUND A SYSTEM WHICH PRODUCES A MASS
OF MEDICAL EVIDENCE IN REPORT FORM.  MAY MATERIAL OF THAT KIND EVER BE
"SUBSTANTIAL EVIDENCE" WHEN IT STANDS ALONE AND IS OPPOSED BY LIVE
MEDICAL EVIDENCE AND THE CLIENT'S OWN CONTRARY PERSONAL TESTIMONY?  THE
COURTS BELOW HAVE HELD THAT IT MAY NOT. 

        III 

THE SOCIAL SECURITY ACT HAS BEEN WITH US SINCE 1935.  ACT OF AUGUST
14, 1935, 49 STAT. 620.  IT AFFECTS NEARLY ALL OF US.  THE SYSTEM'S
ADMINISTRATIVE STRUCTURE AND PROCEDURES, WITH ESSENTIAL DETERMINATIONS
NUMBERING INTO THE MILLIONS, ARE OF A SIZE AND EXTENT DIFFICULT TO
COMPREHEND.  BUT, AS THE GOVERNMENT'S BRIEF HERE ACCURATELY PRONOUNCES,
"SUCH A SYSTEM MUST BE FAIR-- AND IT MUST WORK."  /5/ 

CONGRESS HAS PROVIDED THAT THE SECRETARY 

"SHALL HAVE FULL POWER AND AUTHORITY TO MAKE RULES AND REGULATIONS
AND TO ESTABLISH PROCEDURES . . . NECESSARY OR APPROPRIATE TO CARRY OUT
SUCH PROVISIONS, AND SHALL ADOPT REASONABLE AND PROPER RULES AND
REGULATIONS TO REGULATE AND PROVIDE FOR THE NATURE AND EXTENT OF THE
PROOFS AND EVIDENCE AND THE METHOD OF TAKING AND FURNISHING THE SAME IN
ORDER TO ESTABLISH THE RIGHT TO BENEFIT HEREUNDER."  SEC. 205(A), 42
U.S.C. 405(A).  SECTION 205(B) DIRECTS THE SECRETARY TO MAKE FINDINGS
AND DECISIONS; ON REQUEST TO GIVE REASONABLE NOTICE AND OPPORTUNITY FOR
A HEARING; AND IN THE COURSE OF ANY HEARING TO RECEIVE EVIDENCE.  IT
THEN PROVIDES: 

"EVIDENCE MAY BE RECEIVED AT ANY HEARING BEFORE THE SECRETARY EVEN
THOUGH INADMISSIBLE UNDER RULES OF EVIDENCE APPLICABLE TO COURT
PROCEDURE."  IN CARRYING OUT THESE STATUTORY DUTIES THE SECRETARY HAS
ADOPTED REGULATIONS THAT STATE, AMONG OTHER THINGS: 

"THE HEARING EXAMINER SHALL INQUIRE FULLY INTO THE MATTERS AT ISSUE
AND SHALL RECEIVE IN EVIDENCE THE TESTIMONY OF WITNESSES AND ANY
DOCUMENTS WHICH ARE RELEVANT AND MATERIAL TO SUCH MATTERS.  . . . THE .
. . PROCEDURE AT THE HEARING GENERALLY . . . SHALL BE IN THE DISCRETION
OF THE HEARING EXAMINER AND OF SUCH NATURE AS TO AFFORD THE PARTIES A
REASONABLE OPPORTUNITY FOR A FAIR HEARING."  20 CFR 404.927. 

FROM THIS IT IS APPARENT THAT (A) THE CONGRESS GRANTED THE SECRETARY
THE POWER BY REGULATION TO ESTABLISH HEARING PROCEDURES; (B) STRICT
RULES OF EVIDENCE, APPLICABLE IN THE COURTROOM, ARE NOT TO OPERATE AT
SOCIAL SECURITY HEARINGS SO AS TO BAR THE ADMISSION OF EVIDENCE
OTHERWISE PERTINENT; AND (C) THE CONDUCT OF THE HEARING RESTS GENERALLY
IN THE EXAMINER'S DISCRETION.  THER EMERGES AN EMPHASIS UPON THE
INFORMAL RATHER THAN THE FORMAL.  THIS, WE THINK, IS AS IT SHOULD BE,
FOR THIS ADMINISTRATIVE PROCEDURE, AND THESE HEARINGS, SHOULD BE
UNDERSTANDABLE TO THE LAYMAN CLAIMANT, SHOULD NOT NECESSARILY BE STIFF
AND COMFORTABLE ONLY FOR THE TRAINED ATTORNEY, AND SHOULD BE LIBERAL
AND NOT STRICT IN TONE AND OPERATION.  THIS IS THE OBVIOUS INTENT OF
CONGRESS SO LONG AS THE PROCEDURES ARE FUNDAMENTALLY FAIR. 

  IV 

WITH THIS BACKGROUND AND THIS ATMOSPHERE IN MIND, WE TURN TO THE
STATUTORY STANDARD OF "SUBSTANTIAL EVIDENCE" PRESCRIBED BY SEC.
205(G).  THE COURT HAS CONSIDERED THIS VERY CONCEPT IN OTHER, YET
SIMILAR, CONTEXTS.  THE NATIONAL LABOR RELATIONS ACT, SEC. 10(E), IN
ITS ORIGINAL FORM, PROVIDED THAT THE NLRB'S FINDINGS OF FACT "IF
SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE."  49 STAT. 454.  THE COURT
SIAD THIS MEANT "SUPPORTED BY SUBSTANTIAL EVIDENCE" AND THAT THIS WAS 

"MORE THAN A MERE SCINTILLA.  IT MEANS SUCH RELEVANT EVIDENCE AS A
REASONABLE MIND MIGHT ACCEPT AS ADEQUATE TO SUPPORT A CONCLUSION." 
CONSOLIDATED EDISON CO. V. NLRB, 305 U.S. 197, 229 (1938).  THE COURT
HAS ADHERED TO THAT DEFINITION IN VARYING STATUTORY SITUATIONS.  SEE
NLRB V. COLUMBIAN ENAMELING & STAMPING CO., 306 U.S. 292, 300 (1939);
UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474, 477-487 (1951); CONSOLO
V. FEDERAL MARITIME COMM'N, 383 U.S. 607, 619-620 (1966). 

        V 

WE MAY ACCEPT THE PROPOSITIONS ADVANCED BY THE CLAIMANT, SOME OF
THEM LONG ESTABLISHED, THAT PROCEDURAL DUE PROCESS IS APPLICABLE TO THE
ADJUDICATIVE ADMINISTRATIVE PROCEEDING INVOLVING "THE DIFFERING RULES
OF FAIR PLAY, WHICH THROUGH THE YEARS, HAVE BECOME ASSOCIATED WITH
DIFFERING TYPES OF PROCEEDINGS," HANNAH V. LARCHE, 363 U.S. 420, 442
(1960); THAT "THE 'RIGHT' TO SOCIAL SECURITY BENEFITS IS IN ONE SENSE
'EARNED,'" FLEMMING V. NESTOR, 363 U.S. 603, 610 (1960); AND THAT THE 

"EXTENT TO WHICH PROCEDURAL DUE PROCESS MUST BE AFFORDED THE
RECIPIENT IS INFLUENCED BY THE EXTENT TO WHICH HE MAY BE 'CONDEMNED TO
SUFFER GRIEVOUS LOSS'.  . . . ACCORDINGLY . . . 'CONSIDERATION OF WHAT
PROCEDURES DUE PROCESS MAY REQUIRE UNDER ANY GIVEN SET OF CIRCUMSTANCES
MUST BEGIN WITH A DETERMINATION OF THE PRECISE NATURE OF THE GOVERNMENT
FUNCTION INVOLVED AS WELL AS OF THE PRIVATE INTEREST THAT HAS BEEN
AFFECTED BY GOVERNMENTAL ACTION.'"  GOLDBERG V. KELLY, 397 U.S. 254,
262-263 (1970). 

THE QUESTION, THEN, IS AS TO WHAT PROCEDURAL DUE PROCESS REQUIRES
WITH RESPECT TO EXAMINING PHYSICIANS' REPORTS IN A SOCIAL SECURITY
DISABILITY CLAIM HEARING. 

WE CONCLUDE THAT A WRITTEN REPORT BY A LICENSED PHYSICIAL WHO HAS
EXAMINED THE CLAIMANT AND WHO SETS FORTH IN HIS REPORT HIS MEDICAL
FINDINGS IN HIS AREA OF COMPENTENCE MAY BE RECEIVED AS EVIDENCE IN A
DISABILITY HEARING AND, DESPITE ITS HEARSAY CHARACTER AND AN ABSENCE OF
CROSS-EXAMINATION, AND DESPITE THE PRESENCE OF OPPOSING DIRECT MEDICAL
TESTIMONY AND TESTIMONY BY THE CLAIMANT HIMSELF, MAY CONSTITUTE
SUBSTANTIAL EVIDENCE SUPPORTIVE OF A FINDING BY THE HEARING EXAMINER
ADVERSE TO THE CLAIMANT, WHEN THE CLAIMANT HAS NOT EXERCISED HIS RIGHT
TO SUBPOENA THE REPORTING PHYSICIAN AND THEREBY PROVIDE HIMSELF WITH
THE OPPORTUNITY FOR CROSS-EXAMINATION OF THE PHYSICIAN. 

WE ARE PROMPTED TO THIS CONCLUSION BY A NUMBER OF FACTORS THAT, WE
FELL, ASSURE UNDERLYING RELIABILITY AND PROBATIVE VALUE: 

1.  THE IDENTITY OF THE FIVE REPORTING PHYSICIANS IS SIGNIFICANT. 
EACH REPORT PRESENTED HERE WAS PREPARED BY A PRACTICING PHYSICIAN WHO
HAD EXAMINED THE CLAIMANT.  /6/  A MAJORITY (DRS. LANGSTON, BAILEY, AND
MATTSON) WERE CALLED INTO THE CASE BY THE STATE AGENCY.  ALTHOUGH EACH
RECEIVED A FEE, THAT FEE IS RECOMPENSE FOR HIS TIME AND TALENT
OTHERWISE DEVOTED TO PRIVATE PRACTICE OR OTHER PROFESSIONAL
ASSIGNMENT.  WE CANNOT, AND DO NOT, ASCRIBE BIAS TO THE WORK OF THESE
INDEPENDENT PHYSICIANS, OR ANY INTEREST ON THEIR PART IN THE OUTCOME OF
THE ADMINISTRATIVE PROCEEDING BEYOND THE PROFESSIONAL CURIOSITY A
DEDICATED MEDICAL MAN POSSESSES. 

2.  THE VAST WORKINGS OF THE SOCIAL SECURITY ADMINISTRATIVE SYSTEM
MAKE FOR RELIABILITY AND IMPARTIALITY IN THE CONSULTANT REPORTS.  WE
BEAR IN MIND THAT THE AGENCY OPERATES ESSENTIALLY, AND IS INTENDED SO
TO DO, AS AN ADJUDICATOR AND NOT AS AN ADVOCATE OR ADVERSARY.  THIS IS
THE CONGRESSIONAL PLAN.  WE DO NOT PRESUME ON THIS RECORD TO SAY THAT
IT WORKS UNFAIRLY.  /7/ 

3.  ONE FAMILIAR WITH MEDICAL REPORTS AND THE ROUTINE OF THE MEDICAL
EXAMINATION, GENERAL OR SPECIFIC, WILL RECOGNIZE THEIR ELEMENTS OF
DETAIL AND OF VALUE.  THE PARTICULAR REPORTS OF THE PHYSICIANS WHO
EXAMINED CLAIMANT PERALES WERE BASED ON PERSONAL CONSULTATION AND
PERSONAL EXAMINATION AND RESTED ON ACCEPTED MEDICAL PROCEDURES AND
TESTS.  THE OPERATING NEUROSURGEON, DR. MUNSLOW, PROVIDED HIS PRE
OPERATIVE OBSERVATIONS AND DIAGNOSIS, HIS FINDINGS AT SURGERY, HIS POST
OPERATIVE DIAGNOSIS, AND HIS POST-OPERATIVE OBSERVATIONS.  DR. LAMPERT,
THE NEUROLOGIST, PROVIDED THE HISTORY RELATED TO HIM BY THE PATIENT,
PERALES' COMPLAINTS, THE PHYSICAL EXAMINATION AND NEUROLOGIC TESTS, AND
HIS PROFESSIONAL IMPRESSIONS AND RECOMMENDATIONS.  DR. LANGSTON, THE
ORTHOPEDIST, DID THE SAME POST-OPERATIVELY, AND DESCRIBED THE
ORTHOPEDIC TESTS AND NEUORLOGIC EXAMINATION HE PERFORMED, THE RESULTS
AND HIS IMPRESSIONS AND PROGNOSIS.  DR. MATTSON, WHO DID THE POST
OPERATIVE ELECTROMYOGRAPHY, DESCRIBED THE RESULTS OF THAT TEST, AND HIS
IMPRESSIONS.  AND DR. BAILEY, THE PSYCHIATRIST, RELATED THE HISTORY,
THE PATIENT'S COMPLAINTS, AND THE PSYCHIATRIC DIAGNOSIS THAT EMERGED
FROM THE TYPICAL PSYCHIATRIC EXAMINATION. 

THESE ARE ROUTINE, STANDARD, AND UNBIASED MEDICAL REPORT BY
PHYSICIAN SPECIALISTS CONCERNING A SUBJECT WHOM THEY HAD SEEN.  THAT
THE REPORTS WERE ADVERSE TO PERALES' CLAIM IS NOT IN ITSELF BIAS OR AN
INDICATION OF NONPROBATIVE CHARACTER. 

4.  THE REPORTS PRESENT THE IMPRESSIVE RANGE OF EXAMINATION TO WHICH
PERALES WAS SUBJECTED.  A SPECIALIST IN NEUROSURGERY, ONE IN NEUROLOGY,
ONE IN PSYCHIATRY, ONE IN ORTHOPEDICS, AND ONE IN PHYSICAL MEDICINE AND
REHABILITATION ADD UP TO DEFINITIVE OPINION IN FIVE MEDICAL
SPECIALTIES, ALL SOMEWHAT RELATED, BUT DIFFERENT IN THEIR EMPHASES.  IT
IS FAIR TO SAY THAT THE CLAIMANT RECEIVED PROFESSIONAL EXAMINATION AND
OPINION ON A SCALE BEYOND THE REACH OF MOST PERSONS AND THAT THIS CASE
REVEALS A PATIENT AND CAREFUL ENDEAVOR BY THE STATE AGENCY AND THE
EXAMINER TO ASCERTAIN THE TRUTH. 

5.  SO FAR AS WE CAN DETECT, THERE IS NO INCONSISTENCY WHATSOEVER IN
THE REPORTS OF THE FIVE SPECIALISTS.  YET EACH RESULT WAS REACHED BY
INDEPENDENT EXAMINATION IN THE WRITER'S FIELD OF SPECIALIZED TRAINING. 

6.  ALTHOUGH THE CLAIMANT COMPLAINS OF THE LACK OF OPPORTUNITY TO
CROSS-EXAMINE THE REPORTING PHYSICIANS, HE DID NOT TAKE ADVANTAGE OF
THE OPPORTUNITY AFFORDED HIM UNDER 20 CFR 404.926 TO REQUEST SUBPOENAS
FOR THE PHYSICIANS.  THE FIVE-DAY PERIOD SPECIFIED BY THE REGULATION
FOR THE ISSUANCE OF THE SUBPOENAS SURELY AFFORDED NO REAL OBSTACLE TO
THIS, FOR HE WAS NOTIFIED THAT THE DOCUMENTARY EVIDENCE ON FILE WAS
AVAILABLE FOR EXAMINATION BEFORE THE HEARING AND, FURTHER, A
SUPPLEMENTAL HEARING COULD BE REQUESTED.  IN FACT, IN THIS VERY CASE
THERE WAS A SUPPLEMENTAL HEARING MORE THAN TWO AND A HALF MONTHS AFTER
THE INITIAL HEARINGS.  THIS INACTION ON THE CLAIMANT'S PART SUPPORTS
THE COURT OF APPEALS' VIEW, 412 F.2D, AT 50-51, THAT THE CLAIMANT AS A
CONSEQUENCE IS TO BE PRECLUDED FROM NOW COMPLAINING THAT HE WAS DENIED
THE RIGHTS OF CONFRONTATION AND CROSS-EXAMINATION. 

7.  COURTS HAVE RECOGNIZED THE RELIABILITY AND PROBATIVE WORTH OF
WRITTEN MEDICAL REPORTS EVEN IN FORMAL TRIALS AND, WHILE ACKNOWLEDGING
THEIR HEARSAY CHARACTER, HAVE ADMITTED THEM AS AN EXCEPTION TO THE
HEARSAY RULE.  NOTABLE IS JUDGE PARKER'S WELL-KNOWN RULING IN THE WAR
RISK INSURANCE CASE OF LONG V. UNITED STATES, 59 F.2D 602, 603-604 (CA4
1932), WHICH DESERVES QUOTATION HERE, BUT WHICH, BECAUSE OF ITS LENGTH,
WE DO NOT REPRODUCE.  THE SECOND CIRCUIT HAS MADE A LIKE RULING IN
WHITE V. ZUTELL, 263 F.2D 613, 615 (1959), AND IN SO DOING, RELIED ON
THE BUSINESS RECORDS ACT, 28 U.S.C. 1732. 

8.  PAST TREATMENT BY REVIEWING COURTS OF WRITTEN MEDICAL REPORTS IN
SOCIAL SECURITY DISABILITY CASES IS REVEALING.  UNTIL THE DECISION IN
THIS CASE, THE COURTS OF APPEALS, INCLUDING THE FIFTH CIRCUIT, WITH
ONLY AN OCCASIONAL CRITICISM OF THE MEDICAL REPORT PRACTICE, /8/
UNIFORMLY RECOGNIZED RELIABILITY AND PROBATIVE VALUE IN SUCH REPORTS. 
THE COURTS HAVE REVIEWED ADMINISTRATIVE DETERMINATIONS, AND UPHELD MANY
ADVERSE ONES, WHERE THE ONLY SUPPORTING EVIDENCE HAS BEEN REPORTS OF
THIS KIND, BUTTRESSED SOMETIMES, BUT OFTEN NOT, BY TESTIMONY OF A
MEDICAL ADVISER SUCH AS DR. LEAVITT.  /9/  IN THESE CASES ADMISSIBILITY
WAS NOT CONTESTED, BUT THE DECISIONS DO DEMONSTRATE TRADITIONAL AND
READY ACCEPTANCE OF THE WRITTEN MEDICAL REPORT IN SOCIAL SECURITY
DISABILITY CASES. 

9.  THERE IS AN ADDITIONAL AND PRAGMATIC FACTOR WHICH, ALTHOUGH NOT
CONTROLLING, DESERVES MENTION.  THIS IS WHAT CHIEF JUDGE BROWN HAS
DESCRIBED AS "(THE SHEER MAGNITUDE OF THAT ADMINISTRATIVE BURDEN," AND
THE RESULTING NECESSITY FOR WRITTEN REPORTS WITHOUT "ELABORATION
THROUGH THE TRADITIONAL FACILITY OF ORAL TESTIMONY."  PAGE V.
CELEBREZZE, 311 F.2D 757, 760 (CA5 1963).  WITH OVER 20,000 DISABILITY
CLAIM HEARINGS ANNUALLY, THE COST OF PROVIDING LIVE MEDICAL TESTIMONY
AT THOSE HEARINGS, WHERE NEED HAS NOT BEEN DEMONSTRATED BY A REQUEST
FOR A SUBPOENA, OVER AND ABOVE THE COST OF THE EXAMINATIONS REQUESTED
BY HEARING EXAMINERS, WOULD BE A SUBSTANTIAL DRAIN ON THE TRUST FUND
AND ON THE ENERGY OF PHYSICIANS ALREADY IN SHORT SUPPLY. 

        VI 

1.  PERALES RELIES HEAVILY ON THE COURT'S HOLDING AND STATEMENTS IN
GOLDBERG V. KELLY, SUPRA, PARTICULARLY THE COMMENT THAT DUE PROCESS
REQUIRES NOTICE "AND AN EFFECTIVE OPPORTUNITY TO DEFEND BY CONFRONTING
ANY ADVERSE WITNESSES.  . . ."  397 U.S.,AT 267-268.  KELLY, HOWEVER,
HAD TO DO WITH TERMINATION OF AFDC BENEFITS WITHOUT PRIOR NOTICE.  IT
ALSO CONCERNED A SITUATION, THE COURT SAID, "WHERE CREDIBILITY AND
VERACITY ARE AT ISSUE, AS THEY MUST BE IN MANY TERMINATION
PROCEEDINGS."  397 U.S.,AT 269.     THE PERALES PROCEEDING IS NOT THE
SAME.  WE ARE NOT CONCERNED WITH TERMINATION OF DISABILITY BENEFITS
ONCE GRANTED.  NEITHER ARE WE CONCERNED WITH A CHANGE OR STATUS WITHOUT
NOTICE.  NOTICE WAS GIVEN TO CLAIMANT PERALES.  THE PHYSICIANS' REPORTS
WERE ON FILE AND AVAILABLE FOR INSPECTION BY THE CLAIMANT AND HIS
COUNSEL.  AND THE AUTHORS OF THOSE REPORTS WERE KNOWN AND WERE SUBJECT
TO SUBPOENA AND TO THE VERY CROSS-EXAMINATION THAT THE CLAIMANT ASSERTS
HE HAS NOT ENJOYED.  FURTHER, THE SPECTOR OF QUESTIONABLE CREDIBILITY
AND VERACITY IS NOT PRESENT; THERE IS PROFESSIONAL DISAGREEMENT WITH
THE MEDICAL CONCLUSIONS, TO BE SURE, BUT THERE IS NO ATTACK HERE UPON
THE DOCTORS'  CREDIBILITY OR VERACITY.  KELLY AFFORDS LITTLE COMFORT TO
THE CLAIMANT. 

2.  PERALES ALSO, AS THE COURT OF APPEALS STATED, 412 F.2D, AT 53,
416 F.2D, AT 1251, WOULD DESCRIBE THE MEDICAL REPORTS IN QUESTION AS
"MERE UNCORROBORATED HERESAY" AND WOULD RELATE THIS TO MR. CHIEF
JUSTICE HUGHES' SENTENCE IN CONSOLIDATED EDISON CO. V. NLRB, 305
U.S.,AT 230:  "MERE UNCORROBORATED HEARSAY OR RUMOR DOES NOT CONSTITUTE
SUBSTANTIAL EVIDENCE." 

ALTHOUGH THE REPORTS ARE HEARSAY IN THE TECHNICAL SENSE, BECAUSE
THEIR CONTENT IS NOT PRODUCED LIVE BEFORE THE HEARING EXAMINER, WE FEEL
THAT THE CLAIMANT AND THE COURT OF APPEALS READ TOO MUCH INTO THE
SINGLE SENTENCE FROM CONSOLIDATED EDISON.  THE CONTRAST THE CHIEF
JUSTICE WAS DRAWING, AT THE VERY PAGE CITED, WAS NOT WITH MATERIAL THAT
WOULD BE DEEMED FORMALLY INADMISSIBLE IN JUDICIAL PROCEEDINGS BUT WITH
MATERIAL "WITHOUT A BASIS IN EVIDENCE HAVING RATIONAL PROBATIVE
FORCE."  THIS WAS NOT A BLANKET REJECTION BY THE COURT OF
ADMINISTRATIVE RELIANCE ON HEARSAY IRRESPECTIVE OF RELIABILITY AND
PROBATIVE VALUE.  THE OPPOSITE WAS THE CASE. 

3.  THE CLAIMANT, THE DISTRICT COURT, AND THE COURT OF APPEALS ALSO
CRITICIZE THE USE OF DR. LEAVITT AS A MEDICAL ADVISER.  288 F.SUPP.,AT
314, 412 F.2D, AT 53-54.  SEE ALSO MEFFORD V. GARDNER, 383 F.2D 748,
759-761 (CA6 1967).  INASMUCH AS MEDICAL ADVISERS ARE USED IN
APPROXIMATELY 13% OF DISABILITY CLAIM HEARINGS, COMMENT AS TO THIS
PRACTICE IS INDICATED.  WE SEE NOTHING "REPREHENSIBLE" IN THE PRACTICE,
AS THE CLAIMANT WOULD DESCRIBE IT.  THE TRIAL EXAMINER IS A LAYMAN; THE
MEDICAL ADVISER IS A BOARD-CERTIFIED SPECIALIST.  HE IS USED PRIMARILY
IN COMPLEX CASES FOR EXPLANATION OF MEDICAL PROBLEMS IN TERMS
UNDERSTANDABLE TO THE LAYMAN-EXAMINER.  HE IS A NEUTRAL ADVISER.  THIS
PARTICULAR RECORD DISCLOSES THAT DR. LEAVITT EXPLAINED THE TECHNIQUE
AND SIGNIFICANCE OF ELECTROMYOGRAPHY.  HE DID OFFER HIS OWN OPINION ON
THE CLAIMANT'S CONDITION.  THAT OPINION, HOWEVER, DID NOT DIFFER FROM
THE MEDICAL REPORTS.  DR. LEAVITT DID NOT VOUCH FOR THE ACCURACY OF THE
FACTS ASSUMED IN THE REPORTS.  NO ONE UNDERSTOOD OTHERWISE.  SEE DOE V.
DEPARTMENT OF TRANSPORTATION, 412 F.2D 674, 678-680 (CA8 1969).  WE SEE
NOTHING UNCONSTITUTIONAL OR IMPROPER IN THE MEDICAL ADVISER CONCEPT AND
IN THE PRESENCE OF DR. LEAVITT IN THIS ADMINISTRATIVE HEARING. 

4.  FINALLY, THE CLAIMANT COMPLAINS OF THE SYSTEM OF PROCESSING
DISABILITY CLAIMS.  HE SUGGESTS, AND IS JOINED IN THIS BY THE BRIEFS OF
AMICI, THAT THE ADMINISTRATIVE PROCEDURE ACT, RATHER THAN THE SOCIAL
SECURITY ACT, GOVERNS THE PROCESSING OF CLAIMS AND SPECIFICALLY
PROVIDES FOR CROSS-EXAMINATION, 5 U.S.C. 556(D) (1964 ED., SUPP. V). 
THE CLAIMANT GOES ON TO ASSERT THAT IN ANY EVENT THE HEARING PROCEDURE
IS INVALID ON DUE PROCESS GROUNDS.  HE SAYS THAT THE HEARING EXAMINER
HAS THE RESPONSIBILITY FOR GATHERING THE EVIDENCE AND "TO MAKE THE
GOVERNMENT'S CASE AS STRONG AS POSSIBLE"; THAT NATURALLY HE LEANS
TOWARD A DECISION IN FAVOR OF THE EVIDENCE HE HAS GATHERED; THAT
JUSTICE MUST SATISFY THE APPEARANCE OF JUSTICE, CITING OFFUTT V. UNITED
STATES, 348 U.S. 11, 14 (1954), AND IN RE MURCHISON, 349 U.S. 133, 136
(1955); AND THAT AN "INDEPENDENT HEARING EXAMINER SUCH AS IN THE"
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT SHOULD BE
PROVIDED. 

WE NEED NOT DECIDE WHETHER THE APA HAS GENERAL APPLICATION TO SOCIAL
SECURITY DISABILITY CLAIMS, FOR THE SOCIAL SECURITY ADMINISTRATIVE
PROCEDURE DOES NOT VARY FROM THAT PRESCRIBED BY THE APA.  INDEED, THE
LATTER IS MODELED UPON THE SOCIAL SECURITY ACT.  SEE FINAL REPORT OF
THE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE, CONTAINED
IN ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, S. DOC. NO. 8, 77TH
CONG., 1ST SESS., 157 (1941); SEE ALSO THE REMARKS OF SENATOR MCCARRAN,
CHAIRMAN OF THE JUDICIARY COMMITTEE OF THE SENATE, 92 CONG.REC.  2155. 
THE CITED SEC. 556(D) PROVIDES THAT ANY DOCUMENTARY EVIDENCE "MAY BE
RECEIVED" SUBJECT TO THE EXCLUSION OF THE IRRELEVANT, THE IMMATERIAL,
AND THE UNDULY REPETITIOUS.  IT FURTHER PROVIDES THAT A "PARTY IS
ENTITLED TO PRESENT HIS CASE OR DEFENSE BY ORAL OR DOCUMENTARY EVIDENCE
. . . AND TO CONDUCT SUCH CROSS-EXAMINATION AS MAY BE REQUIRED FOR A
FULL AND TRUE DISCLOSURE OF THE FACTS" AND IN "DETERMINING CLAIMS FOR
MONEY OR BENEFITS . . . AN AGENCY MAY, WHEN A PARTY WILL NOT BE
PREJUDICED THEREBY, ADOPT PROCEDURES FOR THE SUBMISSION OF ALL OR PART
OF THE EVIDENCE IN WRITTEN FORM." 

THESE PROVISIONS CONFORM, AND ARE CONSISTENT WITH, RATHER THAN
DIFFER FROM OR SUPERSEDE, THE AUTHORITY GIVEN THE SECRETARY BY THE
SOCIAL SECURITY ACT'S SECS. 205(A) AND (B) "TO ESTABLISH PROCEDURES,"
AND "TO REGULATE AND PROVIDE FOR THE NATURE AND EXTENT OF THE PROOFS
AND EVIDENCE AND THE METHOD OF TAKING AND FURNISHING THE SAME IN ORDER
TO ESTABLISH THE RIGHT TO BENEFITS," AND TO RECEIVE EVIDENCE "EVEN
THOUGH INADMISSIBLE UNDER RULES OF EVIDENCE "EVEN THOUGH INADMISSIBLE
UNDER RULES OF EVIDENCE APPLICABLE TO COURT PROCEDURE."  HEARSAY, UNDER
EITHER ACT, IS THUS ADMISSIBLE UP TO THE POINT OF RELEVANCY. 

THE MATTER COMES DOWN TO THE QUESTION OF THE PROCEDURE'S INTEGRITY
AND FUNDAMENTAL FAIRNESS.  WE SEE NOTHING THAT WORKS IN DEROGATION OF
THAT INTEGRITY AND OF THAT FAIRNESS IN THE ADMISSION OF CONSULTANTS'
REPORTS, SUBJECT AS THEY ARE TO BEING MATERIAL AND TO THE USE OF THE
SUBPOENA AND CONSEQUENT CROSS-EXAMINATION.  THIS PRECISELY FITS THE
STATUTORILY PRESCRIBED "CROSS-EXAMINATION AS MAY BE REQUIRED FOR A FULL
AND TRUE DISCLOSURE OF THE FACTS."  THAT IS THE STANDARD.  IT IS CLEAR
AND WORKABLE AND DOES NOT FALL SHORT OF PROCEDURAL DUE PROCESS. 

NEITHER ARE WE PERSUADED BY THE ADVOCATE-JUDGE-MULTIPLE-HAT
SUGGESTION.  IT ASSUMES TOO MUCH AND WOULD BRING DOWN TOO MANY
PROCEDURES DESIGNED, AND WORKING WELL, FOR A GOVERNMENTAL STRUCTURE OF
GREAT AND GROWING COMPLEXITY.  THE SOCIAL SECURITY HEARING EXAMINER,
FURTHERMORE, DOES NOT ACT AS COUNSEL.  HE ACTS AS AN EXAMINER CHARGED
WITH DEVELOPING THE FACTS.  THE 44.2% REVERSAL RATE FOR ALL FEDERAL
DISABILITY HEARINGS IN CASES WHERE THE STATE AGENCY DOES NOT GRANT
BENEFITS, M. ROCK, AN EVALUATION OF THE SSA APPEALS PROCESS, REPORT NO.
7, U.S. DEPARTMENT OF HEW, P. 9 (1970), ATTESTS TO THE FAIRNESS OF THE
SYSTEM AND REFUTES THE IMPLICATION OF IMPROPRIETY. 

WE THEREFORE REVERSE AND REMAND FOR FURTHER PROCEEDINGS.  WE
INTIMATE NO VIEW AS TO THE MERITS.  IT IS FOR THE DISTRICT COURT NOW TO
DETERMINE WHETHER THE SECRETARY'S FINDINGS, IN THE LIGHT OF ALL
MATERIAL PROFFERED AND ADMISSIBLE, ARE SUPPORTED BY "SUBSTANTIAL
EVIDENCE" WITHIN THE COMMAND OF SEC. 205(G). 

IT IS SO ORDERED. 

/1/  NOT PERTINENT HERE ARE THE DURATIONAL ASPECTS OF DISABILITY
SPECIFIED IN 

/1/  NOT PERTINENT HERE ARE THE DURATIONAL ASPECTS OF DISABILITY SP
THE STATUTE'S DEFINITION. 

/2/  "MIDLINE INCISION IS MADE IN UPPER BORDER OF THE SPINE OF L4
DOWNWARD IN THE MIDLINE TO THE UPPER SACRUM.  DISSECTION IS CARRIED
DOWN AND IN THE SUBPERIOSTEAL SPACE EXPOSING THE INTERSPACES AT L4-5
AND L5 S1.  AT EACH INTERSPACE, PARTICIAL LAMINECTOMY IS CARRIED OUT ON
THE LEFT AND OF THE BOND ADJACENT TO THE INTERSPACE FOLLOWED BY
RESECTION OF THE INTERVENING LIGAMENT IN ORDER THAT THE INTERSPACE
COULD BE THOROUGHLY EXPLORED BOTH BY INSPECTION AS WELL AS BY
PALPATION.  IN EACH INSTANCE, THERE WAS NO PROTRUSION OF THE DISC
IDENTIFIED.  FURTHER RESECTION DOWNWARD OVER THE SACRUM IS CARRIED OUT
IN ORDER THAT WE DO NOT OVERLOOK THE FRAGMENT OF DISC THAT MAY HAVE
EXTRUDED EXTRA-DURALLY IN THIS SPACE BUT NONE IS FOUND. 

"THERE SEEMS TO BE MORE TIGHTNESS OF STRUCTURES PARTICULARLY OF THE
ROOTS IN THE DURAL SAC AND THE LUMBAR AREA THAN ONE USUALLY
ENCOUNTERED.  IT IS FELT THAT THIS IS THE SITUATION REPRESENTING THE
ROOT COMPRESSION SYNDROME, THE EXACT MECHANICS OF WHICH IS NOT
APPARENT.  IT IS FELT THAT FOR THIS REASON THAT HEMILAMINECTOMY OF THE
LEFT L-5 WOULD AFFORD THE PATIENT ADDITIONAL DECOMPRESSION AND THIS IS
CARRIED OUT.  AFTER THIS HAD BEEN DONE THE DURAL SAC BULGES UPWARD IN A
MORE NORMAL POSITION.  REPEAT INSPECTION THROUGH THE INTACT DURA
REVEALS NO EVIDENCE OF AN INTRADURAL MASS.  LIKEWISE THE ANTERIOR
ASPECT OF THE CANAL APPEARS NORMAL.  . . ." 

/3/  "IMPRESSION:  HE MAY HAVE A VERY MILD CHRONIC BACK SPRAIN
ASSOCIATED WITH THE CONGENITAL ANOMALIES AS SEEN ON X-RAY, BUT IT HAS
BEEN A LONG TIME SINCE I HAVE BEEN SO IMPRESSED WITH THE OBVIOUS
ATTEMPT OF A PATIENT TO EXAGGERATE HIS DIFFICULTIES BY SIMPLY JUST
STANDING THERE AND NOT MOVING-- NOT EVEN THE UNINVOLVED UPPER
EXTREMITIES.  THUS, HE HAS A TREMENDOUS PSYCHOLOGICAL OVERLAY TO THIS
ILLNESS, AND I SINCERELY SUGGEST THAT HE BE SEEN BY A PSYCHIATRIST. 

"PROGNOSIS:  HE SHOULD HAVE INTENSIVE PHYSIO-THERAPY IN THE FORM OF
ACTIVE EXERCISE, INCLUDING WALKING, BICYCLING, AND AN ALL OUT ATTEMPT
AT CONSERVATIVE REHABILITATION.  WERE HE TO FOLLOW THIS PROGRAM, AND
WERE IT TO BE EFFECTIVE, I WOULD ESTIMATE THE TIME NECESSARY AT ABOUT
THREE TO SIX MONTHS.  THIS IS ALSO CONSIDERING THAT HE DOES NOT HAVE
ANY SERIOUS PSYCHIATRIC DISEASE, THOUGH HE OBVIOUSLY DOES HAVE A
TREMENDOUS PSYCHOLOGICAL OVERLAY TO HIS ILLNESS." 

/4/  "DIAGNOSIS IN THIS CASE SHOULD BE CONSIDERED AS CRUSH INJURY TO
DISC IN THE LUMBO-SACRAL REGION OF THE SPINE RESULTING IN EITHER A
RUPTURED DISC OR A SLIPPED DISC WHICH WAS SUBSEQUENTLY OPERATED ON BY
DR. RALPH MUNSLOW.  SINCE THE OPERATION, THE PATIENT HAS NOT MADE A
COMPLETE RECOVERY; ON THE CONTRARY, THE PATIENT CONTINUES TO COMPLAIN
AS BITTERLY NOW AS HE DID PRIOR TO SURGERY. 

"SINCE I STARTED SEEING THIS PATIENT ON APRIL 13, I HAVE HAD
OCCASION TO SEE AND TALK WITH HIM OVER 30 TIMES.  DURING THIS PERIOD
AND WITH THIS NUMBER OF VISITS, I HAVE BECOME THOROUGHLY CONVINCED THAT
THIS MAN IS NOT MALINGERING.  I AM COMPLETELY CONVINCED OF HIS
SINCERITY AND OF THE GENUINE AND TRUTHFUL NATURE OF HIS COMPLAINTS. 
FROM MY OWN OBSERVATIONS AND FROM PHYSICAL EXAMINATION, IT IS MY
CONSIDERED OPINION THAT THIS PATIENT HAS INDEED AN INJURY TO THE LUMBO
SACRAL REGION OF THE SPINE WHICH HAS NOT BEEN CORRECTED BY SURGERY.  MY
OPINION IS THAT THE INJURY SUSTAINED IS OF A PERMANENT NATURE AND THAT
AS THINGS PRESENTLY STAND, THE PATIENT IS TOTALLY, COMPLETELY, AND
PERMANENTLY DISABLED.  IT IS MY CONSIDERED OPINION THAT THIS PATIENT IN
THE CONDITION IN WHICH HE FINDS HIMSELF AT THIS TIME WOULD NOT BE ABLE
TO CONTINUE GAINFUL EMPLOYMENT AS A COMMON LABORER.  INASMUCH AS THIS
PATIENT HAS HAD PREVIOUS SURGERY TO THE AFFECTED AREA, I DO NOT KNOW
THAT FURTHER SURGERY WOULD HAVE ANYTHING TO OFFER HIM, AND HAVE TOLD
HIM THAT ABOUT THE MOST I COULD OFFER HIM WOULD BE A SUPPORT BELT TO
HELP RELIEVE THE SYMPTOMS, BY THE USE OF A WALKING CANE, AND ANALGESICS
FOR RELIEF OF THE SYMPTOMS." 

/5/  BRIEF 14. 

/6/  ALTHOUGH, AS NOTED ABOVE, ONE STATED GROUND OF OBJECTION WAS
THE ABSENCE OF PROOF OF THE PHYSICIANS' TEXAS LICENSURE, WE DO NOT
UNDERSTAND THAT THERE IS ANY SERIOUS ISSUE AS TO THE POSSESSION OF
TEXAS LICENSES BY DRS. MUNSLOW, LAMPERT, LANGSTON, BAILEY, AND
MATTSON. 

/7/  WE ARE ADVISED BY THE GOVERNMENT'S BRIEF, P. 18, NN. 7 AND 8,
THAT IN FISCAL 1968, 515,938 DISABILITY CLAIMS WERE PROCESSED; THAT, OF
THESE, 343,628 (66.601%) WERE ALLOWED PRIOR TO THE HEARING STAGE; THAT
APPROXIMATELY ONE-THIRD OF THE CLAIMS THAT WENT TO HEARING WERE
ALLOWED; AND THAT 320,164 CONSULTANT EXAMINATIONS WERE OBTAINED. 

/8/  RATLIFF V. CELEBREZZE, 338 F.2D 978, 982 (CA6 1964); BUT SEE
MIRACLE V. CELEBREZZE, 351 F.2D 361, 365, 382-383 (CA6 1965). 

/9/  BER V. CELEBREZZE, 332 F.2D 293, 296-298 (CA2 1964); STANCAVAGE
V. CELEBREZZE, 323 F.2D 373, 374 (CA3 1963); DUPKUNIS V. CELEBREZZE,
323 F.2D 380, 382 (CA 3 1963); COCHRAN V. CELEBREZZE, 325 F.2D 137, 138
(CA4 1963); CUTHRELL V. CELEBREZZE, 330 F.2D 48, 50-51 (CA4 1964);
ALDRIDGE V. CELEBREZZE, 339 F.2D 190, 191 (CA5 1964); DODSWORTH V.
CELEBREZZE, 349 F.2D 312, 313-314 (CA5 1965); BRIDGES V. GARDNER, 368
F.2D 86, 89 (CA5 1966); GREEN V. GARDNER, 391 F.2D 606 (CA5 1968);
MARTIN V. FINCH, 415 F.2D 793, 794 (CA5 1969); BREAUX V. FINCH, 421
F.2D 687, 689 (CA5 1970); PHILLIPS V. CELEBREZZE, 330 F.2D 687, 689
(CA6 1964); JUSTICE V. GARDNER, 360 F.2D 998, 1000-1001 (CA6 1966);
MOON V. CELEBREZZE, 340 F.2D 926, 928 (CA7 1065); PIERCE V. GARDNER,
388 F.2D 846, 847 (CA7 1967), CERT. DENIED, 393 U.S. 885; CELEBREZZE V.
SUTTON, 338 F.2D 417, 419-420 (CA8 1964); BRSHER V. CELEBREZZE, 340
F.2D 413, 414 (CA8 1965); MCMULLEN V. CELEBREZZE, 335 F.2D 811, 815
(CA9 1964), CERT. DENIED, 382 U.S. 854; FLAKE V. GARDNER, 399 F.2D 532,
534 (CA9 1968); CELEBREZZE V. WARREN, 339 F.2D 833, 836 (CA10 1964);
MCMILLIN V. GARDNER, 384 F.2D 596, 597 (CA10 1967). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

THIS CLAIMANT FOR SOCIAL SECURITY DISABILITY BENEFITS HAD A SERIOUS
BACK INJURY.  THE DOCTOR WHO EXAMINED HIM TESTIFIED THAT HE WAS
PERMANENTLY DISABLED.  HIS CASE IS DEFEATED, HOWEVER, BY HEARSAY
EVIDENCE OF DOCTORS AND THEIR MEDICAL REPORTS ABOUT THIS CLAIMANT. ONLY
ONE DOCTOR WHO EXAMINED HIM TESTIFIED AT THE HEARING.  FIVE OTHER
DOCTORS WHO HAD ONCE EXAMINED THE CLAIMANT DID NOT TESTIFY AND WERE NOT
SUBJECT TO CROSS-EXAMINATION.  BUT THEIR REPORTS WERE ADMITTED IN
EVIDENCE.  STILL ANOTHER DOCTOR TESTIFIED ON THE HEARSAY IN THE
DOCUMENTS OF THE OTHER DOCTORS.  ALL OF THIS HEARSAY MAY BE RECEIVED,
AS THE ADMINISTRATIVE PROCEDURE ACT (5 U.S.C. 556(D) (1964 ED., SUPP.
V)) PROVIDES THAT "(ANY ORAL OR DOCUMENTARY EVIDENCE MAY BE RECEIVED." 
BUT THIS HEARSAY EVIDENCE CANNOT BY ITSELF BE THE BASIS FOR AN ADVERSE
RULING.  THE SAME SECTION OF THE ACT STATES THAT "(A) PARTY IS ENTITLED
. . . TO CONDUCT SUCH CROSS-EXAMINATION AS MAY BE REQUIRED FOR A FULL
AND TRUE DISCLOSURE OF THE FACTS."  /1/     AS A CONSEQUENCE THE COURT
OF APPEALS SAID: 

     "OUR OPINION HOLDS, AND WE REAFFIRM, THAT MERE UNCORROBORATED

  HEARSAY EVIDENCE AS TO THE PHYSICAL CONDITION OF A CLAIMANT,

  STANDING ALONE AND WITHOUT MORE, IN A SOCIAL SECURITY DISABILITY

  CASE TRIED BEFORE A HEARING EXAMINER, AS IN OUR CASE, IS NOT

SUBSTANTIAL EVIDENCE THAT WILL SUPPORT A DECISION OF THE EXAMINER

  ADVERSE TO THE CLAIMANT, IF THE CLAIMANT OBJECTS TO THE HEARSAY

  EVIDENCE AND IF THE HEARSAY EVIDENCE IS DIRECTLY CONTRADICTED BY

  THE TESTIMONY OF LIVE MEDICAL WITNESSES AND BY THE CLAIMANT WHO

  (TESTIFIES) IN PERSON BEFORE THE EXAMINER, AS WAS DONE IN THE

  CASE AT BAR."  416 F.2D 1250, 1251. 

CROSS-EXAMINATION OF DOCTORS IN THESE PHYSICAL INJURY CASES IS, I
THINK, ESSENTIAL TO A FULL AND FAIR DISCLOSURE OF THE FACTS.  /2/ 

THE CONCLUSION REACHED BY THE COURT OF APPEALS THAT HEARSAY EVIDENCE
ALONE IS NOT "SUBSTANTIAL" ENOUGH TO SUSTAIN A JUDGMENT ADVERSE TO THE
CLAIMANT IS SUPPORTED NOT ONLY BY THE ADMINISTRATIVE PROCEDURE ACT BUT
ALSO BY THE SOCIAL SECURITY ACT ITSELF.  ALTHOUGH CONGRESS PROVIDED IN
THE SOCIAL SECURITY ACT THAT "(EVIDENCE MAY BE RECEIVED AT ANY HEARING
BEFORE THE SECRETARY EVEN THOUGH INADMISSIBLE UNDER RULES OF EVIDENCE
APPLICABLE TO COURT PROCEDURE," SEE 42 U.S.C. 405(B), CONGRESS ALSO
PROVIDED THAT FINDINGS OF THE SECRETARY WERE TO BE CONCLUSIVE ONLY "IF
SUPPORTED BY SUBSTANTIAL EVIDENCE."  42 U.S.C. 405(G).  UNCORROBORATED
HEARSAY UNTESTED BY CROSS-EXAMINATION DOES NOT BY ITSELF CONSTITUTE
"SUBSTANTIAL EVIDENCE."  SEE CONSOLIDATED EDISON CO. V. NLRB, 305 U.S.
197, 230 (1938).  PARTICULARLY WHERE AS IN THIS CASE, A DISABILITY
CLAIMANT APPEARS AND TESTIFIES AS TO THE NATURE AND EXTENT OF HIS
INJURY AND HIS FAMILY DOCTOR TESTIFIES IN HIS BEHALF SUPPORTING THE
FACT OF HIS DISABILITY, THE SECRETARY SHOULD NOT BE ABLE TO SUPPORT AN
ADVERSE DETERMINATION ON THE BASIS OF MEDICAL REPORTS FROM DOCTORS WHO
DID NOT TESTIFY OR THE TESTIMONY OF AN HEW EMPLOYEE WHO NEVER EVEN
EXAMINED THE CLAIMANT AS A PATIENT. 

THIS CASE IS MINUSCULE IN RELATION TO THE STAGGERING PROBLEMS OF THE
NATION.  BUT WHEN A GRAVE INJUSTICE IS WREAKED ON AN INDIVIDUAL BY THE
PRESENTLY POWERFUL FEDERAL BUREAUCRACY, IT IS A MATTER OF CONCERN TO
EVERYONE, FOR THESE DAYS THE AVERAGE MAN CAN SAY:  "THERE BUT FOR THE
GRACE OF GOD GO I." 

ONE DOCTOR WHOSE WORD CAST THIS CLAIMANT INTO LIMBO NEVER SAW HIM,
NEVER EXAMINED HIM, NEVER TOOK HIS VITAL STATISTICS OR SAW HIM TRY TO
WALK OR BEND OR LIFT WEIGHTS. 

HE WAS A "MEDICAL ADIVSER" TO HEW.  THE USE OF CIRCUIT-RIDING
DOCTORS WHO NEVER SEE OR EXAMINE CLAIMANTS TO DEFEAT THEIR CLAIMS
SHOULD BE BENEATH THE DIGNITY OF A GREAT NATION.  THREE OTHER DOCTORS
WHO WERE NOT SUBJECT TO CROSS-EXAMINATION WERE EXPERTS RETAINED AND
PAID BY THE GOVERNMENT.  SOME, WE ARE TOLD, WHO WERE SUBJECT TO NO
CROSS-EXAIMANATION WERE EMPLOYED BY THE WORKMEN'S COMPENSATION
INSURANCE COMPANY TO DEFEAT RESPONDENT'S CLAIM. 

JUDGE SPEARS WHO FIRST HEARD THIS CASE SAID THAT THE WAY HEARING
OFFICERS PARROT "ALMOST WORD FOR WORD THE CONCLUSIONS" OF THE "MEDICAL
ADVISER" PRODUCED "NAUSEA" IN HIM.  JUDGE SPEARS ADDED: 

     "(HEARSAY EVIDENCE IN THE NATURE OF EX PARTE STATEMENTS OF

  DOCTORS ON THE CRITICAL ISSUE OF A MAN'S PRESENT PHYSICAL

  CONDITION IS JUST A VIOLATION OF THE CONCEPT WITH WHICH I AM

FAMILIAR AND WHICH BEARS UPON THE ISSUE OF FUNDAMENTAL FIAR PLAY

  IN A HEARING. 

     "THEN, WHEN YOU PYRAMID HEARSAY FROM A SO-CALLED MEDICAL

  ADVISOR, WHO, HIMSELF, HAS NEVER EXAMINED THE MAN WHO CLAIMS

  BENEFITS, THEN YOU JUST COMPOUND IT-- COMPOUND A SITUATION THAT I

  SIMPLY CANNOT TOLERATE IN MY OWN MIND, AND I CAN'S SEE WHY A

  HEARING EXAMINER WANTS TO ABROGATE HIS DUTY AND HIS

  RESPONSIBILITY AND TURN IT OVER TO SOME MEDICAL ADVISOR." 

REVIEW OF THE EVIDENCE IS OF NO VALUE TO US.  THE VICE IS IN THE
PROCEDURE WHICH ALLOWS IT IN WITHOUT TESTING IT BY CROSS-EXAMINATION. 
THOSE DEFENDING A CLAIM LOOK TO DEFENSE-MINDED EXPERTS FOR THEIR
SALVATION.  THOSE WHO PRESS FOR RECOGNITION OF A CLAIM LOOK TO OTHER
EXPERTS.  THE PROBLEM OF THE LAW IS TO GIVE ADVANTAGE TO NEITHER, BUT
TO LET TRIAL BY ORDEAL OF CROSS-EXAMINATION DISTILL THE TRUTH. 

THE USE BY HEW OF ITS STABLE OF DEFENSE DOCTORS WITHOUT SUBMITTING
THEM TO CROSS-EXAMINATION IS THE CUTTING OF CORNERS-- A PRACTICE IN
WHICH CERTAINLY THE GOVERNMENT SHOULD NOT INDULGE.  THE PRACTICE IS
BARRED BY THE RULES WHICH CONGRESS HAS PROVIDED; AND WE SHOULD ENFORCE
THEM IN THE SPIRIT IN WHICH THEY WERE WRITTEN. 

I WOULD AFFIRM THIS JUDGMENT. 

/1/  S. REP. NO. 752, 79TH CONG., 1ST SESS., 22-23. 

"THE RIGHT OF CROSS-EXAMINATION EXTENDS, IN A PROPER CASE, TO
WRITTEN EVIDENCE SUBMITTED PURSUANT TO THE LAST SENTENCE OF THE
SUBSECTION AS WELL AS TO CASES IN WHICH ORAL OR DOCUMENTARY EVIDENCE IS
RECEIVED IN OPEN HEARING.  . . . TO THE EXTENT THAT CROSS-EXAMINATION
IS NECESSARY TO BRING OUT THE TRUCH, THE PARTY SHOULD HAVE IT. . . ." 

THE HOUSE JUDICIARY COMMITTEE EXPRESSED A LIKE VIEW. 

"THE PROVISION ON ITS FACE DOES NOT CONFER A RIGHT OF SO-CALLED
'UNLIMITED' CROSS-EXAMINATION.  PRESIDING OFFICERS WILL HAVE TO MAKE
THE NECESSARY INITIAL DETERMINATION WHETHER THE CROSS-EXAIMINATION IS
PRESSED TO UNREASONABLE LENGTHS BY A PARTY OR WHETHER IT IS REQUIRED
FOR THE 'FULL AND TRUE DISCLOSURE OF THE FACTS' STATED IN THE
PROVISION.  NOR IS IT THE INTENTION TO ELIMINATE THE AUTHORITY OF
AGENCIES TO CONFER SOUND DISCRETION UPON PRESIDING OFFICERS IN THE
MATTER OF ITS EXTENT.  THE TEST IS-- AS THE SECTION STATES-- WHETHER IT
IS REQUIRED 'FOR A FULL AND TRUE DISCLOSURE OF THE FACTS'.  . . . THE
RIGHT OF CROSS-EXAMINATION EXTENDS, IN A PROPER CASE, TO WRITTEN
EVIDENCE SUBMITTED PURSUANT TO THE LAST SENTENCE OF THE SECTION AS WELL
AS TO CASES IN WHICH ORAL OR DOCUMENTARY EVIDENCE IS RECEIVED IN OPEN
HEARING.  . . . TO THE EXTENT THAT CROSS-EXAMINATION IS NECESSARY TO
BRING OUT THE TRUTH, THE PARTY MUST HAVE IT. . . ."  H.R. REP. NO.
1980, 79TH CONG., 2D SESS., 37. 

/2/  WHILE THE ADMINISTRATIVE PROCEDURE ACT ALLOWS STATUTORY
EXCEPTIONS OF PROCEDURES DIFFERENT FROM THOSE IN THE ACT, 5 U.S.C. 556
(1964 ED., SUPP. V), THERE IS NO EXPLICIT BAN IN THE SOCIAL SECURITY
ACT (42 U.S.C. 405) AGAINST THE RIGHT OF CROSS-EXAMINATION.  AND THE
REGULATIONS OF THE SECRETARY PROVIDE THAT THERE MUST BE "A REASONABLE
OPPORTUNITY FOR A FAIR HEARING."  20 CFR 404.927. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR PETITIONER. 
WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL RUCKELSHAUS, ASSISTANT ATTORNEY GENERAL GRAY, LAWRENCE
G. WALLACE, KATHRYN H. BALDWIN, AND MICHAEL C. FARRAR. 

RICHARD TINSMAN, BY APPOINTMENT OF THE COURT, 398 U.S. 902, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

BRIEFS OF AMICI CURIAE WERE FILED BY FRANKLIN M. SCHULTZ AND JOHN T.
MILLER, JR., FOR THE AMERICAN BAR ASSOCIATION; BY FRANK P. CHRISTIAN,
HARRY B. ADAMS III, AND MELVIN N. EICHELBAUM FOR THE BEXAR COUNTY LEGAL
AID ASSOCIATION; AND BY JONATHAN WEISS FOR THE APPALACHIAN REASEARCH
AND DEFENSE FUND ET AL.
..END :











CALIFORNIA HUMAN RESOURCES DEPT. V. JAVA, 402 U.S. 121 


       CALIFORNIA DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT ET AL.

           V. JAVA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

        NO. 507.  ARGUED FEBRUARY 24, 1971-- DECIDED APRIL 26,
1971 


ADMINISTRATION "REASONABLY CALCULATED TO INSURE FULL PAYMENT OF
UNEMPLOYMENT COMPENSATION WHEN DUE."  IN LIGHT OF THE INTENT OF
CONGRESS TO MAKE PAYMENTS AVAILABLE AT THE EARLIEST STAGE OF
UNEMPLOYMENT AS IS ADMINISTRATIVELY FEASIBLE, IN ORDER TO PROVIDE A
SUBSTITUTE FOR WAGES, THE LANGUAGE "WHEN DUE" MUST BE CONSTRUED TO MEAN
WHEN BENEFITS ARE ALLOWED AS A RESULT OF A HEARING OF WHICH BOTH
PARTIES HAVE NOTICE AND AT WHICH THEY ARE PERMITTED TO PRESENT THEIR
RESPECTIVE POSITIONS.  CALIFORNIA'S INITIAL INTERVIEW PROVIDES SUCH A
HEARING AND ACCORDINGLY ENFORCEMENT OF SEC. 1335 OF THE CALIFORNIA
UNEMPLOYMENT INSURANCE CODE, PROVIDING FOR THE WITHHOLDING OF INSURANCE
BENEFITS UPON AN EMPLOYER'S APPEAL FROM THE INITIAL ELIGIBILITY
DETERMINATION, MUST BE ENJOINED BECAUSE IT CONFLICTS WITH THE
REQUIREMENT OF SEC. 303 (A)(1) OF THE SOCIAL SECURITY ACT.  PP. 124
135. 

317 F.SUPP.  875, AFFIRMED. 

BURGER, C.J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.  DOUGLAS,
J., FILED A CONCURRING OPINION, POST, P. 135. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES THE ISSUE OF WHETHER A STATE MAY, CONSISTENT WITH
SEC. 303(A)(1) OF THE SOCIAL SECURITY ACT, SUSPEND OR WITHHOLD
UNEMPLOYMENT COMPENSATION BENEFITS FROM A CLAIMANT, WHEN AN EMPLOYER
TAKES AN APPEAL FROM AN INITIAL DETERMINATION OF ELIGIBILITY.  SECTION
303(A)(1) OF THE SOCIAL SECURITY ACT, 49 STAT. 626, AS AMENDED, 42
U.S.C. 503(A)(1), PROVIDES THAT BENEFITS MUST BE PAID "WHEN DUE." 

IN LATE SUMMER 1969, APPELLEES JUDITH JAVA AND CARROLL HUDSON,
HAVING BEEN DISCHARGED FROM EMPLOYMENT, APPLIED FOR UNEMPLOYMENT
INSURANCE BENEFITS UNDER THE CALIFORNIA UNEMPLOYMENT INSURANCE
PROGRAM.  APPELLEES WERE GIVEN AN ELIGIBILITY INTERVIEW AT WHICH THE
EMPLOYER DID NOT APPEAR, ALTHOUGH SUCH AN APPEARANCE WAS PERMITTED.  AS
A RESULT OF THAT INTERVIEW BOTH EMPLOYEES WERE RULED ELIGIBLE FOR
BENEFITS.  PAYMENTS BEGAN IMMEDIATELY.  IN EACH CASE THE FORMER
EMPLOYER FILED AN APPEAL AFTER LEARNING OF THE GRANT OF BENEFITS,
CONTENDING THAT BENEFITS SHOULD BE DENIED BECAUSE THE CLAIMANTS WERE
DISCHARGED FOR CAUSE.  IN ACCORDANCE WITH THE PRACTICE OF THE AGENCY
AND PURSUANT TO SEC. 1335 OF THE CALIFORNIA UNEMPLOYMENT INSURANCE CODE
/1/  PAYMENTS AUTOMATICALLY STOPPED.  AT THE SUBSEQUENT HEARINGS BEFORE
AN APPEALS BOARD REFEREE, WHICH STAGE IS ESSENTIALLY AN APPEAL FROM THE
PRELIMINARY DETERMINATION UNDER CALIFORNIA UNEMPLOYMENT INSURANCE CODE
SECS. 1328, 1334, APPELLEE HUDSON'S ELIGIBILITY WAS AFFIRMED, BUT
APPELLEE JAVA WAS RULED INELIGIBLE AND THE INITIAL DETERMINATION WAS
REVERSED. 

PRIOR TO THE HEARINGS BEFORE THE REFEREE, APPELLEES COMMENCED A
CLASS ACTION IN THE UNITED STATES DISTRICT COURT ON BEHALF OF
THEMSELVES AND OTHER CLAIMANTS SIMILARLY SITUATED.  THEY SOUGHT A
DECLARATION THAT SEC. 1335 OF THE CALIFORNIA UNEMPLOYMENT INSURANCE
CODE IS UNCONSTITUTIONAL AND INCONSISTENT WITH THE REQUIREMENTS OF SEC.
303(A)(1) OF THE SOCIAL SECURITY ACT, AND AN ORDER ENJOINING THE
OPERATION OF SEC. 1335. 

A THREE-JUDGE COURT WAS CONVENED, AND IT CONCLUDED THAT SEC. 1335 IS
DEFECTIVE ON BOTH CONSTITUTIONAL AND STATUTORY GROUNDS.  THE DISTRICT
COURT HELD THAT BY NOT PROVIDING FOR A PRETERMINATION HEARING, THE
CALIFORNIA PROCEDURE CONSTITUTES A DENIAL OF PROCEDURAL DUE PROCESS,
RELYING ON GOLDBERG V. KELLY, 397 U.S. 254 (1970).  IT FURTHER HELD
THAT THE APPLICATION OF SEC. 1335, SO AS TO RESULT IN A MEDIAN SEVEN
WEEK DELAY IN PAYMENTS TO CLAIMANTS WHO HAVE BEEN FOUND ELIGIBLE FOR
BENEFITS, CONSTITUTED A FAILURE TO PAY UNEMPLOYMENT COMPENSATION "WHEN
DUE" WITHIN THE MEANING OF SEC. 303(A)(1) OF THE SOCIAL SECURITY ACT. 
THE COURT GRANTED APPELLEES' MOTION FOR A PRELIMINARY INJUNCTION,
ORDERING THE STATE OF CALIFORNIA NOT TO SUSPEND UNEMPLOYMENT BENEFITS
PURSUANT TO SEC. 1335 BECAUSE AN ELIGIBILITY DETERMINATION HAS BEEN
APPEALED. 

        (1) 

WE AGREE WITH THE CONCLUSION OF THE DISTRICT COURT THAT SEC. 1335 OF
THE CALIFORNIA UNEMPLOYMENT INSURANCE CODE CONFLICTS WITH THE
REQUIREMENTS OF SEC. 303(A)(1) OF THE SOCIAL SECURITY ACT.  THIS
HOLDING MAKES IT UNNECESSARY TO REACH THE CONSTITUTIONAL ISSUE INVOLVED
IN GOLDBERG V. KELLY, SUPRA, ON WHICH THE DISTRICT COURT RELIED. 

(2) 

THE IMPORTANCE OF THIS CASE TO WORKERS IS OBVIOUS.  BECAUSE AN
UNDERSTANDING AND THE RESOLUTION OF THE BASIC ISSUE DEPENDS ON
FAMILIARITY WITH A SERIES OF DETAILED PROCEDURES, WE SET OUT FULLY THE
ADMINISTRATIVE SCHEME. 

ALL FEDERAL-STATE COOPERATIVE UNEMPLOYMENT INSURANCE PROGRAMS ARE
FINANCED IN PART BY GRANTS FROM THE UNITED STATES PURSUANT TO THE
SOCIAL SECURITY ACT, 42 U.S.C. 501-503.  NO GRANT MAY BE MADE TO A
STATE FOR A FISCAL YEAR UNLESS THE SECRETARY OF LABOR CERTIFIES THE
AMOUNT TO BE PAID, 42 U.S.C. 502(A).  THE SECRETARY OF LABOR MAY NOT
CERTIFY PAYMENT OF FEDERAL FUNDS UNLESS HE FIRST FINDS THAT THE STATE'S
PROGRAM CONFORMS TO FEDERAL REQUIREMENTS.  IN PARTICULAR, SEC.
303(A)(1) OF THE ACT REQUIRES THAT STATE METHODS OF ADMINISTRATION BE
FOUND "TO BE REASONABLY CALCULATED TO INSURE FULL PAYMENT OF
UNEMPLOYMENT COMPENSATION WHEN DUE."  /2/ 

THE CALIFORNIA UNEMPLOYMENT INSURANCE COMPENSATION PROGRAM, CERTIFIED
BY THE SECRETARY OF LABOR UNDER SEC. 303 OF THE ACT, PROVIDES FOR
PAYMENT OF INSURANCE BENEFITS, OVER AN EXTENDED PERIOD OF TIME, TO
PERSONS WHO FIND THEMSELVES UNEMPLOYED THROUGH NO FAULT OF THEIR OWN. 
CAL. UNEMP.  INS.  CODE SEC. 1251 ET SEQ. IN ORDER TO BE ELIGIBLE FOR
BENEFITS A CLAIMANT IS REQUIRED TO HAVE EARNED A SPECIFIED AMOUNT OF
WAGES DURING HIS BASE PERIOD.  ID., SEC. 1281.  BENEFITS ARE PAID FROM
THE STATE UNEMPLOYMENT FUND, WHICH CONSISTS OF FUNDS COLLECTED FROM
PRIVATE EMPLOYERS, ID., SEC. 976 ET SEQ., AND UNEMPLOYMENT TRUST FUND
PURSUANT TO 42 U.S.C. 501-503, 1101-1105.  THE AMOUNT OF MONEY AN
EMPLOYER IS REQUIRED TO PAY INTO THE STATE FUND IS BASED ON BENEFITS
PAID TO TERMINATED EMPLOYEES WHICH ARE CHARGED TO ITS RESERVE ACCOUNT
AND DISBURSEMENTS FROM THE STATE UNEMPLOYMENT FUND.  CAL. UNEMP.  INS. 
CODE SECS. 1025-1032, 976-978. 

A CLAIMANT, APPEARING AT AN UNEMPLOYMENT INSURANCE OFFICE TO ASSERT
A CLAIM INITIALLY IS ASKED TO FILL OUT FORMS WHICH, TAKEN TOGETHER,
INDICATE THE BASIS OF THE CLAIM, THE NAME OF THE CLAIMANT'S PREVIOUS
EMPLOYER, THE REASON FOR HIS UNEMPLOYMENT, HIS WORK EXPERIENCE, ETC.
THE CLAIMANT IS ASKED TO RETURN TO THE OFFICE THREE WEEKS LATER FOR THE
PURPOSE OF RECEIVING AN ELIGIBILITY BENEFITS RIGHTS INTERVIEW.  THE
ISSUE MOST FREQUENTLY DISPUTED, THE CLAIMANT'S REASON FOR TERMINATION
OF EMPLOYMENT, IS ANSWERED ON FORM DE 1101, AND THE DEPARTMENT
IMMEDIATELY SENDS COPIES OF THIS FORM TO THE AFFECTED EMPLOYER FOR
VERIFICATION.  MEANWHILE THE EMPLOYER IS ASKED TO FURNISH, WITHIN 10
DAYS, "ANY FACTS THEN KNOWN WHICH MAY AFFECT THE CLAIMANT'S ELIGIBILITY
FOR BENEFITS."  CAL. UNEMP.  INS.  CODE SECS. 1327, 1030.  IF THE
EMPLOYER CHALLENGES ELIGIBILITY, THE CLAIMANT MAY THEN BE ASKED TO
COMPLETE FORM DE 4935, WHICH ASKS FOR DETAILED INFORMATION ABOUT THE
TERMINATION OF CLAIMANT'S PREVIOUS JOB.  THE INTERVIEWER HAS, ACCORDING
TO THE LOCAL OFFICE MANUAL (L.O.M.)  USED IN CALIFORNIA, THE
"RESPONSIBILITY TO SEEK FROM ANY SOURCE THE FACTS REQUIRED TO MAKE A
PROMPT AND PROPER DETERMINATION OF ELIGIBILITY."  L.O.M. SEC.
1400.3(2).  "WHENEVER INFORMATION SUBMITTED IS NOT CLEARLY ADEQUATE TO
SUBSTANTIATE A DECISION, THE DEPARTMENT HAS AN OBLIGATION TO SEEK THE
NECESSARY INFORMATION."  L.O.M. SEC. 1400.5(1)(A).  THIS CLEARLY
CONTEMPLATES INQUIRY TO THE LATEST EMPLOYER, AMONG OTHERS. 

THE CLAIMANT THEN APPEARS FOR HIS INTERVIEW.  AT THE INTERVIEW, THE
ELIGIBILITY INTERVIEWER REVIEWS AVAILABLE DOCUMENTS, MAKES CERTAIN THAT
REQUIRED FORMS HAVE BEEN COMPLETED, AND CLARIFIES OR VERIFIES ANY
QUESTIONABLE STATEMENTS.  IF THERE ARE INCONSISTENT FACTS OR QUESTIONS
AS TO ELIGIBILITY, THE CLAIMANT IS ASKED TO EXPLAIN AND OFFER HIS
VERSION OF THE FACTS.  THE INTERVIEWER IS INSTRUCTED TO MAKE TELEPHONE
CONTACT WITH OTHER PARTIES, INCLUDING THE LATEST EMPLOYER, AT THE TIME
OF THE INTERVIEW, IF POSSIBLE.  L.O.M. SEC. 1404.4(20).  INTERESTED
PERSONS, INCLUDING THE EMPLOYER, ARE ALLOWED TO CONFIRM, CONTRADICT,
EXPLAIN, OR PRESENT ANY RELEVANT EVIDENCE.  L.O.M. SEC. 1404.5(21). 

THE ELIGIBILITY INTERVIEWER MUST THEN CONSIDER ALL THE EVIDENCE AND
MAKE A DETERMINATION AS TO ELIGIBILITY.  NORMALLY, THE DETERMINATION IS
MADE AT THE OBTAIN INFORMATION BY MAIL FROM ANY SOURCE, THE
DETERMINATION MAY BE PLACED IN SUSPENSE FOR 10 DAYS AFTER THE DATE OF
INTERVIEW, OR, IF NO RESPONSE IS RECEIVED, NO LATER THAN CLAIMANT'S
NEXT REPORT DAY.  L.O.M. SEC. 1400.3(2((A). 

FROM THE FOREGOING IT CAN BE SEEN THAT THE INTERVIEW FOR THE
DETERMINATION OF ELIGIBILITY IS THE CRITICAL POINT IN THE CALIFORNIA
PROCEDURE.  /3/  IN THE DEPARTMENT'S OWN TERMS, IT IS "THE POINT AT
WHICH ANY ISSUE AFFECTING THE CLAIMANT'S ELIGIBILITY IS DECIDED AND
FULFILLS THE DEPARTMENT'S LEGAL OBLIGATION TO INSURE THAT . . .
(BENEFITS ARE PAID PROMPTLY IF CLAIMANT IS ELIGIBLE."  L.O.M. SEC.
1400.1(1).  IF THE INITIAL DETERMINATION IS FAVORABLE TO THE CLAIMANT,
/4/  PAYMENTS BEGIN IMMEDIATELY, AND FOR 95-98% OF THE CLAIMS, FORMER
EMPLOYERS DO NOT APPEAR OR SEEK A HEARING; /5/  NO FURTHER PROBLEM
ARISES AS TO INITIAL ELIGIBILITY.  THE DEPARTMENT SENDS OUT A NOTICE TO
THE EMPLOYER INFORMING HIM THAT THE CLAIMANT HAS BEEN FOUND ELIGIBLE,
AND THAT THE EMPLOYER MAY APPEAL WITHIN 10 DAYS.  CAL. UNEMP.  INS. 
CODE SEC. 1328.  THE 10-DAY PERIOD MAY BE EXTENDED FOR "GOOD CAUSE." 
IBID. 

IF THE EMPLOYER APPEALS, PAYMENT OF THE CLAIMANT'S BENEFITS IS
STOPPED PENDING DETERMINATION ON APPEAL BEFORE AN APPEALS BOARD
REFEREE.  ID., SEC. 1335; SEE L.O.M. SEC. 1474.  THE AUTOMATIC
SUSPENSION OF BENEFITS UPON THE EMPLOYER'S APPEAL, AFTER AN INITIAL
DETERMINATION OF ELIGIBILITY, IS THE ASPECT OF THE CALIFORNIA PROCEDURE
CHALLENGED HERE.  BY THAT TIME THE CLAIMANT MAY HAVE RECEIVED ONE OR
PERHAPS TWO PAYMENTS.  WHEN THE EMPLOYER APPEALS, A HEARING IS THEN
SCHEDULED AT WHICH BOTH THE PARTIES MAY APPEAR AND BE REPRESENTED, CALL
WITNESSES, AND PRESENT EVIDENCE.  "A REFEREE AFTER AFFORDING A
REASONABLE OPPORTUNITY FOR FAIR HEARING, SHALL, UNLESS SUCH APPEAL IS
WITHDRAWN, AFFIRM, REVERSE, OR MODIFY ANY DETERMINATION WHICH IS
APPEALED . . . ."  CAL. UNEMP.  INS.  CODE SEC. 1334.  THE APPEAL
AFFORDS A DE NOVO CONSIDERATION.  GENERALLY, PROCESSING OF THE
EMPLOYER'S APPEAL TAKES BETWEEN SIX AND SEVEN WEEKS, BETWEEN THE DATE
OF FILING THE APPEAL AND THE DATE OF MAILING THE DECISION OR
DISMISSAL.  /6/ 

IF UPON APPEAL THE REFEREE FINDS THE CLAIMANT ELIGIBLE, PAYMENTS ARE
REINSTATED AT ONCE AND CONTINUE EVEN IF THE EMPLOYER EXERCISES HIS
RIGHT TO APPEAL FURTHER TO THE APPEALS BOARD.  CAL. UNEMP.  INS.  CODE
SEC. 1335(B).  MEANWHILE AS MUCH AS SEVEN TO 10 WEEKS MAY HAVE
ELAPSED.  THE RECORD INDICATES THAT EMPLOYERS ARE SUCCESSFUL IN LESS
THAN 50% OF THEIR APPEALS FROM INITIAL DETERMINATIONS OF ELIGIBILITY. 
/7/  THE REFEREE'S DECISION IS FINAL UNLESS WITHIN 10 DAYS FURTHER
APPEAL IS INITIATED TO THE APPEALS BOARD.  CAL. UNEMP.  INS.  CODE
SECS. 1334, 1336.  THE APPEALS BOARD MUST RENDER A DECISION WITHIN 60
DAYS AFTER THE FILING OF FURTHER EVIDENCE.  ID., SEC. 1337.  IF THE
CLAIMANT IS SUCCESSFUL ON APPEAL, HE RECEIVES A LUMP SUM PAYMENT FOR
WEEKS OF UNEMPLOYMENT PRIOR TO THE REFEREE'S DECISION.  ID., SEC.
1338.  IF THE EMPLOYER IS SUCCESSFUL ON APPEAL, HIS RESERVE ACCOUNT IS
IMMEDIATELY CREDITED WITH ALL MONIES THAT HAVE BEEN PAID HIS FORMER
EMPLOYEE.  HE HAS NO RESPONSIBILITY FOR RECOUPMENT.  ID., SECS. 1335,
1380.  /8/

        (3) 

THE DISPOSITIVE ISSUE IS THE DETERMINATION OF WHETHER SEC. 1335 OF
THE CALIFORNIA UNEMPLOYMENT INSURANCE CODE VIOLATES THE COMMAND OF 42
U.S.C. 503(A)(1) THAT STATE UNEMPLOYMENT COMPENSATION PROGRAMS MUST "BE
REASONABLY CALCULATED TO INSURE FULL PAYMENT OF UNEMPLOYMENT
COMPENSATION WHEN DUE."  THE PURPOSE OF THE FEDERAL STATUTORY SCHEME
MUST BE EXAMINED IN ORDER TO RECONCILE THE APPARENT CONFLICT BETWEEN
THE PROVISION OF THE CALIFORNIA STATUTE AND SEC. 303(A)(1) OF THE
SOCIAL SECURITY ACT. 

IT IS TRUE, AS APPELLANTS ARGUE, THAT THE UNEMPLOYMENT COMPENSATION
INSURANCE PROGRAM WAS NOT BASED ON NEED IN THE SENSE UNDERLYING THE
VARIOUS WELFARE PROGRAMS THAT HAD THEIR GENESIS IN THE SAME PERIOD OF
ECONOMIC STRESS A GENERATION AGO.  A KIND OF "NEED" IS PRESENT IN THE
STATUTORY SCHEME FOR INSURANCE, HOWEVER, TO THE EXTENT THAT ANY "SALARY
REPLACEMENT" INSURANCE FULFILLS A NEED CAUSED BY LOST EMPLOYMENT.  THE
OBJECTIVE OF CONGRESS WAS TO PROVIDE A SUBSTITUTE FOR WAGES LOST DURING
A PERIOD OF UNEMPLOYMENT NOT THE FAULT OF THE EMPLOYEE.  PROBABLY NO
PROGRAM COULD BE DEVISED TO MAKE INSURANCE PAYMENTS AVAILABLE PRECISELY
ON THE NEAREST PAYDAY FOLLOWING THE TERMINATION, BUT TO THE EXTENT THAT
THIS WAS ADMINISTRATIVELY FEASIBLE THIS MUST BE REGARDED AS WHAT
CONGRESS WAS TRYING TO ACCOMPLISH.  THE CIRCUMSTANCES SURROUNDING THE
ENACTMENT OF THE STATUTE CONFIRM THIS. 

THE SOCIAL SECURITY ACT RECEIVED ITS IMPETUS FROM THE REPORT OF THE
COMMITTEE ON ECONOMIC SECURITY, /9/  WHICH WAS ESTABLISHED BY EXECUTIVE
ORDER OF PRESIDENT FRANKLIN D. ROOSEVELT TO STUDY THE WHOLE PROBLEM OF
FINANCIAL INSECURITY DUE TO UNEMPLOYMENT, OLD AGE, DISABILITY, AND
HEALTH.  IN ITS REPORT, TRANSMITTED TO CONGRESS BY THE PRESIDENT ON
JANUARY 17, 1935, THE COMMITTEE RECOMMENDED A PROGRAM OF UNEMPLOYMENT
INSURANCE COMPENSATION AS A "FIRST LINE OF DEFENSE FOR . . . (A WORKER)
ORDINARILY STEADILY EMPLOYED . . . FOR A LIMITED PERIOD DURING WHICH
THERE IS EXPECTATION THAT HE WILL SOON BE REEMPLOYED.  THIS SHOULD BE A
CONTRACTUAL RIGHT NOT DEPENDENT ON ANY MEANS TEST . . . . IT WILL CARRY
WORKERS OVER MOST, IF NOT ALL, PERIODS OF UNEMPLOYMENT IN NORMAL TIMES
WITHOUT RESORT TO ANY OTHER FORM OF ASSISTANCE."  /10/  ESTIMATES OF
POSSIBLE AMOUNTS AND DURATION OF UNEMPLOYMENT BENEFITS WERE MADE BY THE
ACTUARIAL STAFF OF THE COMMITTEE.  ON THE BASIS OF 1922-1933
STATISTICDS, IT WAS ESTIMATED THAT 12 WEEKS OF BENEFITS COULD BE PAID
WITH A TWO-WEEK WAITING PERIOD AT A 4% EMPLOYER CONTRIBUTION RATE. 
/11/  THE LONGEST WAITING PERIOD ENTERING INTO THE ESTIMATES WAS FOUR
WEEKS, INDICATING AN INTENT THAT PAYMENTS SHOULD BEGIN PROMPTLY AFTER
THE EXPIRATION OF A SHORT WAITING PERIOD.     OTHER EVIDENCE IN THE
LEGISLATIVE HISTORY OF THE ACT AND THE COMMENTARY UPON IT SUPPORTS THE
CONCLUSION THAT "WHEN DUE" WAS INTENDED TO MEAN AT THE EARLIEST STAGE
OF UNEMPLOYMENT THAT SUCH PAYMENTS WERE ADMINISTRATIVELY FEASIBLE AFTER
GIVING BOTH THE WORKER AND THE EMPLOYER AN OPPORTUNITY TO BE HEARD. 
THE PURPOSE OF THE ACT WAS TO GIVE PROMPT IF ONLY PARTIAL REPLACEMENT
OF WAGES TO THE UNEMPLOYED, TO ENABLE WORKERS "TO TIDE THEMSELVES OVER,
UNTIL THEY GET BACK TO THEIR OLD WORK OR FIND OTHER EMPLOYMENT, WITHOUT
HAVING TO RESORT TO RELIEF."  /12/  UNEMPLOYMENT BENEFITS PROVIDE CASH
TO A NEWLY UNEMPLOYED WORKER "AT A TIME WHEN OTHERWISE HE WOULD HAVE
NOTHING TO SPEND,"  /13/  SERVING TO MAINTAIN THE RECIPIENT AT
SUBSISTENCE LEVELS WITHOUT THE NECESSITY OF HIS TURNING TO WELFARE OR
PRIVATE CHARITY.  FURTHER, PROVIDING FOR "SECURITY DURING THE PERIOD
FOLLOWING UNEMPLOYMENT"  /14/  WAS THOUGHT TO BE A MEANS OF ASSISTING A
WORKER TO FIND SUBSTANTIALLY EQUIVALENT EMPLOYMENT.  THE FEDERAL RELIEF
ADMINISTRATOR TESTIFIED THAT THE ACT "COVERS A GREAT MANY THOUSANDS OF
PEOPLE WHO ARE THROWN OUT OF WORK SUDDENLY.  IT IS ESSENTIAL THAT THEY
BE PERMITTED TO LOOK FOR A JOB.  THEY SHOULD NOT BE DOING ANYTHING ELSE
BUT LOOKING FOR A JOB."  /15/  FINALLY, CONGRESS VIEWED UNEMPLOYMENT
INSURANCE PAYMENTS AS A MEANS OF EXERTING AN INFLUENCE UPON THE
STABILIZATION OF INDUSTRY.  "THEIR ONLY DISTINGUISHING FEATURE IS THAT
THEY WILL BE SPECIALLY EARMARKED FOR THE USE OF THE UNEMPLOYED AT THE
VERY TIMES WHEN IT IS BEST FOR BUSINESS THAT THEY SHOULD BE SO USED." 
/16/  EARLY PAYMENT OF INSURANCE BENEFITS SERVES TO PREVENT A DECLINE
IN THE PURCHASING POWER OF THE UNEMPLOYED, WHICH IN TURN SERVES TO AID
INDUSTRIES PRODUCING GOODS AND SERVICES.  THE FOLLOWING EXTRACT FROM
THE TESTIMONY OF THE SECRETARY OF LABOR, IN SUPPORT OF THE ACT,
DESCRIBES THE STABILIZATION MECHANISM CONTEMPLATED: 

"I THINK THAT THE IMPORTANCE OF PROVIDING PURCHASING POWER FOR THESE
PEOPLE, EVEN THOUGH TEMPORARY, IS OF VERY GREAT SIGNIFICANCE IN THE
BEGINNING OF A DEPRESSION.  I REALLY BELIEVE THAT PUTTING PURCHASING
POWER IN THE FORM OF UNEMPLOYMENT-INSURANCE BENEFITS IN THE HANDS OF
THE PEOPLE AT THE MOMENT WHEN THE DEPRESSION BEGINS AND WHEN THE FIRST
GROUPS BEGIN TO BE LAID OFF IS BOUND TO HAVE A BENEFICIAL EFFECT.  NOT
ONLY WILL YOU STABLIZE THEIR PURCHASES, BUT THROUGH STABILIZATION OF
THEIR PURCHASES YOU WILL KEEP OTHER INDUSTRIES FROM GOING DOWNWARD, AND
IMMEDIATELY YOU SPREAD WORK BY THAT VERY DEVICE."  /17/ 

WE CONCLUDE THAT THE WORD "DUE" IN SEC. 303(A)(1), WHEN CONSTRUED IN
LIGHT OF THE PURPOSES OF THE ACT, MEANS THE TIME WHEN PAYMENTS ARE
FIRST ADMINISTRATIVELY ALLOWED AS A RESULT OF A HEARING OF WHICH BOTH
PARTIES HAVE NOTICE AND ARE PERMITTED TO PRESENT THEIR RESPECTIVE
POSITIONS; ANY OTHER CONSTRUCTION WOULD FAIL TO MEET THE OBJECTIVE OF
EARLY SUBSTITUTE COMPENSATION DURING UNEMPLOYMENT.  PAYING COMPENSATION
TO AN UNEMPLOYED WORKER PROMPTLY AFTER AN INITIAL DETERMINATION OF
ELIGIBILITY ACCOMPLISHES THE CONGRESSIONAL PURPOSES OF AVOIDING RESORT
TO WELFARE AND STABILIZING CONSUMER DEMANDS; DELAYING COMPENSATION
UNTIL MONTHS HAVE ELAPSED DEFEATS THESE PURPOSES.  IT SEEMS CLEAR
THEREFORE THAT THE CALIFORNIA PROCEDURE, WHICH SUSPENDS PAYMENTS FOR A
MEDIAN PERIOD OF SEVEN WEEKS PENDING APPEAL, AFTER AN INITIAL
DETERMINATION OF ELIGIBILITY HAS BEEN MADE, IS NOT "REASONABLY
CALCULATED TO INSURE FULL PAYMENT OF UNEMPLOYMENT COMPENSATION WHEN
DUE."  /18/

        (4) 

WE ARE NOT PERSUADED BY APPELLANTS' SUGGESTION THAT THE INITIAL
DETERMINATION IS EFFECTIVE IN INSURING THAT BENEFITS ARE LIMITED TO
LEGALLY ELIGIBLE CLAIMANTS.  FROM 95%-98% OF INELIGIBLE CLAIMANTS ARE
SCREENED OUT AT THIS STAGE.  THE PRIMARY INQUIRY AT THE PRELIMINARY
INTERVIEW IS TO EXAMINE THE CLAIMANT'S BASIC ELIGIBILITY UNDER THE
CALIFORNIA STATUTE.  IT IS AN OCCASION WHEN THE CLAIMS OF BOTH THE
EMPLOYER AND THE EMPLOYEE CAN BE HEARD, HOWEVER.  THE REGULATIONS
CONTEMPLATE THAT THE INTERVIEWER SHALL MAKE INQUIRIES OF THE EMPLOYER
INFORMALLY.  THIS MAYNOT ALWAYS FLUSH OUT OBJECTIONS BASED ON DISCHARGE
FOR CAUSE, AS THIS CASE ILLUSTRATES.  NONETHELESS, IF THE EMPLOYER HAS
NOTICE OF THE TIME AND PLACE OF THE PRELIMINARY INTERVIEW, AS WAS THE
CASE HERE, IT IS HIS RESPONSIBILITY TO PRESENT SUFFICIENT DATA TO MAKE
CLEAR HIS OBJECTIONS TO THE CLAIM FOR BENEFITS AND PUT THE INTERVIEWER
IN A POSITION TO BROADEN THE INQUIRY IF NECESSARY.  ANY PROCEDURE OR
REGULATION THAT FAILS TO GIVE NOTICE TO THE EMPLOYER WOULD, OF COURSE,
BE VIOLATIVE OF THE STATUTORY SCHEME AS WE CONSTRUE IT. 

ALTHOUGH THE ELIGIBILITY INTERVIEW IS INFORMAL AND DOES NOT
CONTEMPLATE TAKING EVIDENCE IN THE TRADITIONAL JUDICIAL SENSE, IT HAS
ADVERSARY CHARACTERISTICS AND THE MINIMUM OBLIGATION OF AN EMPLOYER IS
TO INFORM THE INTERVIEWER AND THE CLAIMANT OF ANY DISQUALIFYING
FACTORS.  SO INFORMED, THE INTERVIEWER CAN DIRECT THE INITIAL INQUIRY
TO IDENTIFYING A FRIVOLOUS OR DILATORY CONTENTION BY EITHER PARTY. 

IT WOULD FRUSTRATE ONE OF THE ACT'S BASIC PURPOSES-- PROVIDING A
"SUBSTITUTE" FOR WAGES-- TO PERMIT AN EMPLOYER TO IGNORE THE INITIAL
INTERVIEW OR FAIL TO ASSERT AND DOCUMENT A CLAIMED DEFENSE, AND THEN
EFFECTUATE CESSATION OF PAYMENTS BY ASSERTING A DEFENSE TO THE CLAIM BY
WAY OF APPEAL.  IF THE EMPLOYER FAILS TO PRESENT ANY EVIDENCE, HE HAS
IN EFFECT DEFAULTED, AND NEITHER HE NOR THE STATE CAN WITH
JUSTIFICATION COMPLAIN IF, ON A PRIMA FACIE SHOWING, BENEFITS ARE
ALLOWED.  IF THE EMPLOYER'S DEFENSES ARE NOT ACCEPTED AND THE CLAIM IS
ALLOWED, THAT ALSO CONSTITUTES A DETERMINATION THAT THE BENEFITS ARE
"DUE." 

AS WE HAVE NOTED, THIS CONSTRUCTION OF THE STATUTORY SCHEME
VINDICATES THE CONGRESSIONAL OBJECTIVE; CALIFORNIA'S APPROACH TENDS TO
FRUSTRATE IT.  OUR READING OF THE STATUTE IMPOSES NO HARDSHIP ON EITHER
THE STATE OR THE EMPLOYER /19/ AND GIVES EFFECT TO THE CONGRESSIONAL
OBJECTIVE OF GETTING MONEY INTO THE POCKET OF THE UNEMPLOYED WORKER AT
THE EARLIEST POINT THAT IS ADMINISTRATIVELY FEASIBLE.  THAT IS WHAT THE
UNEMPLOYMENT INSURANCE PROGRAM WAS ALL ABOUT. 

FOR THE REASONS STATED ENFORCEMENT OF SEC. 1335 MUST BE ENJOINED
BECAUSE IT IS INCONSISTENT WITH SEC. 303(A)(1) OF THE SOCIAL SECURITY
ACT.  SEE KING V. SMITH, 392 U.S. 309, 333 (1968); ROSADO V. WYMAN, 397
U.S. 397, 420-421 (1970). 

              AFFIRMED. 

/1/  SECTION 1335 OF THE CALIFORNIA UNEMPLOYMENT INSURANCE CODE
PROVIDES: 

"IF AN APPEAL IS FILED, BENEFITS WITH RESPECT TO THE PERIOD PRIOR TO
THE FINAL DECISION ON THE APPEAL SHALL BE PAID ONLY AFTER SUCH
DECISION, EXCEPT THAT: 

"(A) IF BENEFITS FOR ANY WEEK ARE PAYABLE IN ACCORDANCE WITH A
DETERMINATION BY THE DEPARTMENT IRRESPECTIVE OF ANY DECISION ON THE
ISSUES SET FORTH IN THE APPEAL, SUCH BENEFITS SHALL BE PROMPTLY PAID
REGARDLESS OF SUCH APPEAL, OR 

"(B) IF A REFEREE AFFIRMS A DETERMINATION ALLOWING BENEFITS, SUCH
BENEFITS SHALL BE PAID REGARDLESS OF ANY APPEAL WHICH MAY THEREAFTER BE
TAKEN, AND REGARDLESS OF ANY ACTION TAKEN UNDER SECTION 1336 OR
OTHERWISE BY THE DIRECTOR, APPEALS BOARD, OR OTHER ADMINISTRATIVE BODY
OR BY ANY COURT. 

IF SUCH DETERMINATION IS FINALLY REVERSED NO EMPLOYERS' ACCOUNT
SHALL BE CHARGED WITH BENEFITS PAID BECAUSE OF THAT DETERMINATION." 

/2/  SECTION 303(A)(1) OF THE SOCIAL SECURITY ACT, 42 U.S.C.
503(A)(1), PROVIDES IN PART: 

"(A) THE SECRETARY OF LABOR SHALL MAKE NO CERTIFICATION FOR PAYMENT
TO ANY STATE UNLESS HE FINDS THAT THE LAW OF SUCH STATE, APPROVED BY
THE SECRETARY OF LABOR UNDER THE FEDERAL UNEMPLOYMENT TAX ACT, INCLUDES
PROVISION FOR-- 

"(1) SUCH METHODS OF ADMINISTRATION (INCLUDING AFTER JANUARY 1,
1940, METHODS RELATING TO THE ESTABLISHMENT AND MAINTENANCE OF
PERSONNEL STANDARDS ON A MERIT BASIS, EXCEPT THAT THE SECRETARY OF
LABOR SHALL EXERCISE NO AUTHORITY WITH RESPECT TO THE SELECTION, TENURE
OF OFFICE, AND COMPENSATION OF ANY INDIVIDUAL EMPLOYED IN ACCORDANCE
WITH SUCH METHODS) AS ARE FOUND BY THE SECRETARY OF LABOR TO BE
REASONABLY CALCULATED TO INSURE FULL PAYMENT OF UNEMPLOYMENT
COMPENSATION WHEN DUE." 

/3/  OF THE 226,066 CLAIMANTS RULED ELIGIBLE IN 1968, ONLY 2,602
(1%) WERE FOUND INELIGIBLE BY A STATE REFEREE UPON AN EMPLOYER'S
APPEAL. 

/4/  OF 667,993 DETERMINATIONS ON ELIGIBILITY IN 1968, 441,927 WERE
FAVORABLE TO THE CLAIMANT. 

/5/  IN 1968 THERE WERE ONLY 5,526 DECISIONS ON APPEALS FILED BY
EMPLOYERS. 

/6/  IN 1968 THE PERIOD WAS 49 DAYS; IN 1969 IT WAS 40.5 DAYS. 

/7/  OF 4,159 APPEALS FILED BY AN EMPLOYER BETWEEN JANUARY 1, 1969,
AND SEPTEMBER 30, 1969, 2,023 RESULTED IN DECISIONS FAVORABLE TO THE
EMPLOYER.  (DURING THE SAME PERIOD THERE WERE 14,768 APPEALS FILED BY
CLAIMANTS, 4,838 OF WHICH WERE SUCCESSFUL.)  IN 1968 THERE WERE 5,526
DECISIONS ON APPEALS FILED BY EMPLOYERS, RESULTING IN 2,602 DECISIONS
FAVORABLE TO THE EMPLOYER, AND 2,924 FAVORABLE TO THE CLAIMANT. 

/8/  COUNSEL INFORMED THE COURT THAT RECOUPMENT IS EFFECTED BY THE
DEPARTMENT AS TO APPROXIMATELY 65% OF THE AMOUNTS ERRONEOUSLY PAID;
THIS IS GENERALLY ACCOMPLISHED BY WAY OF OFFSET AGAINST BENEFITS
SUBSEQUENTLY GRANTED IN A LATER UNEMPLOYMENT CLAIM.  THE DEPARTMENT MAY
ALSO FILE A CIVIL ACTION FOR RECOVERY.  SEE CAL. UNEMP.  INS.  CODE
SEC. 2739. 

/9/  REPORT OF THE COMMITTEE ON ECONOMIC SECURITY, HEARINGS ON S.
1130 BEFORE THE SENATE COMMITTEE ON FINANCE, 74TH CONG., 1ST SESS.,
1311 (1935); SEE GENERALLY LARSON & MURRAY, THE DEVELOPMENT OF
UNEMPLOYMENT INSURANCE IN THE UNITED STATES, 8 VAND.L.REV.  181 (1955);
WITTE, DEVELOPMENT OF UNEMPLOYMENT COMPENSATION, 55 YALE L.J. 21, 29-34
(1945). 

/10/  REPORT OF THE COMMITTEE ON ECONOMIC SECURITY, SUPRA, N. 9, AT
1321-1322.  SEE NOTE, CHARITY VERSUS SOCIAL INSURANCE IN UNEMPLOYMENT
COMPENSATION LAWS, 73 YALE L.J. 357 (1963). 

/11/  HEARINGS, SUPRA, N. 9, AT 1321, 1319. 

/12/  H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 7 (1935). 

/13/  STATEMENT OF THE SECRETARY OF LABOR, HEARINGS, SUPRA, N. 9, AT
119.  CF. NASH V. FLORIDA INDUSTRIAL COMM'N, 389 U.S. 235, 239 (1967). 

/14/  SEE S. REP. NO. 628, 74TH CONG., 1ST SESS., 12 (1935). 

/15/  STATEMENT OF FEDERAL RELIEF ADMINISTRATOR AND MEMBER OF THE
COMMITTEE ON ECONOMIC SECURITY, HEARINGS ON H.R. 4120 BEFORE THE HOUSE
COMMITTEE ON WAYS AND MEANS, 74TH CONG., 1ST SESS., 214 (1935). 

/16/  STATEMENT OF SEN. ROBERT F. WAGNER, HEARINGS, SUPRA, N. 9, AT
3. 

/17/ STATEMENT OF THE SECRETARY OF LABOR, HEARINGS, SUPRA, N. 15, AT
182.  SEE CLAGUE, THE ECONOMICS OF UNEMPLOYMENT COMPENSATION, 55 YALE
L.J. 53, 69 (1945). 

/18/  IT WAS UNCONTESTED IN ARGUMENT BEFORE THE DISTRICT COURT THAT
THE AVERAGE PERIOD OF UNEMPLOYMENT IN CALIFORNIA IS APPROXIMATELY NINE
WEEKS. 

/19/  FOR EXAMPLE, AN EMPLOYER'S RESERVE ACCOUNT IS NOT CHARGED IF A
CLAIMANT IS RULED INELIGIBLE BECAUSE OF VOLUNTARY TERMINATION OR
DISCHARGE FOR CAUSE, UNLESS THE EMPLOYER FAILS TO FURNISH THE
INFORMATION REQUIRED.  CAL. UNEMP.  INS.  CODE SEC. 1032, 1030. 

IN DISPOSING OF THE PRAYER FOR A PERMANENT INJUNCTION, IT MAY BE
APPROPRIATE TO JOIN THE SECRETARY OF LABOR AS A PARTY IN ORDER THAT
COMPLETE RELIEF MAY BE ACCORDED. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I AGREE WITH THE OPINION OF THE COURT, I ADD A FEW WORDS. 

THE ARGUMENT OF CALIFORNIA IN THIS CASE IS SURPRISINGLY
DISINGENUOUS.  FIRST IT SEEKS TO DISTINGUISH GOLDBERG V. KELLY, 397
U.S. 254, ON THE GROUND THAT "WELFARE IS BASED ON NEED; UNEMPLOYMENT
INSURANCE IS NOT."  BUT THAT SIMPLY IS NOT TRUE, FOR THE HISTORY MAKES
CLEAR THAT THE THRUST OF THE SCHEME FOR UNEMPLOYMENT BENEFITS WAS TO
TAKE CARE OF THE NEED OF DISPLACED WORKERS, PENDING A SEARCH FOR OTHER
EMPLOYMENT.  SECOND, CALIFORNIA ARGUES THAT DELAY IN PAYMENT OF
BENEFITS UNTIL THE EMPLOYER'S APPEAL IS ENDED IS NECESSARY IN TERMS OF
DUE PROCESS BECAUSE "IT IS THE EMPLOYER'S MONEY WHICH IS USED TO PAY
THE CLAIMANT," HIS ACCOUNT BEING "CHARGED" AND HIS EXPERIENCE RATING
"ADVERSELY AFFECTED" EACH TIME AN EMPLOYEE IS PAID BENEFITS.  IT IS
TRUE THAT THE AMOUNT OF TAXES CONTRIBUTED BY EACH EMPLOYER TO THE
UNEMPLOYMENT FUND VARIES DIRECTLY WITH THE NUMBER OF HIS FORMER
EMPLOYEES WHO QUALIFY FOR UNEMPLOYMENT BENEFITS.  UNDER THE CALIFORNIA
SCHEME, HOWEVER, AN EMPLOYER'S ACCOUNT IS NOT FINALLY CHARGED WITH
BENEFIT PAYMENTS UNTIL AFTER HE HAS EXHAUSTED ALL APPEALS IN THE
ADMINISTRATIVE CHAIN AND ALSO OBTAINED JUDICIAL REVIEW.  IF HE WINS AT
ANY APPELLATE LEVEL, HE IS NOT CHARGED WITH ANY BENEFITS PAID TO HIS
FORMER EMPLOYEE PENDING HIS APPEAL.  CAL. UNEMP.  INS.  CODE SEC. 1335,
1380.  HE HAS NO RESPONSIBILITY FOR RECOUPMENT.  THUS, REGARDLESS OF
WHETHER BENEFITS TO HIS FORMER EMPLOYEES ARE SUSPENDED PENDING HIS
APPEAL, AN EMPLOYER IS ASSURED OF A COMPLETE OPPORTUNITY TO BE HEARD
BEFORE EFFECTIVE ACTION IS TAKEN AGAINST HIM. 

THEREFORE HERE, AS IN GOLDBERG, THE REQUIREMENTS OF PROCEDURAL DUE
PROCESS PROTECT THE PAYMENT OF BENEFITS OWING THE DISPLACED EMPLOYEE
AND THE EMPLOYER HAS NOTICE AND HEARING BEFORE HIS ACCOUNT IS CHARGED. 

WHETHER DUE PROCESS WOULD REQUIRE THE LATTER IS A QUESTION WE DO NOT
REACH.  /1/ 

/1/  CF. LABOR BOARD V. GULLETT GIN CO., 340 U.S. 361.  THOUGH THAT
CASE INVOLVED A QUESTION WHETHER THE LABOR BOARD MUST DEDUCT
UNEMPLOYMENT INSURANCE PAYMENTS FROM BACK-PAY AWARDS, WE SAID: 

"PAYMENTS OF UNEMPLOYMENT COMPENSATION WERE NOT MADE TO THE
EMPLOYEES BY RESPONDENT BUT BY THE STATE OUT OF STATE FUNDS DERIVED
FROM TAXATION.  TRUE, THESE TAXES WERE PAID BY EMPLOYERS, AND THUS TO
SOME EXTENT RESPONDENT HELPED TO CREATE THE FUND.  HOWEVER, THE
PAYMENTS TO THE EMPLOYEES WERE NOT MADE TO DISCHARGE ANY LIABILITY OR
OBLIGATION OF RESPONDENT, BUT TO CARRY OUT A POLICY OF SOCIAL
BETTERMENT FOR THE BENEFIT OF THE ENTIRE STATE."  ID., AT 364. 
ASHER RUBIN, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE CAUSE
FOR APPELLANTS.  WITH HIM ON THE BRIEF WAS THOMAS C. LYNCH, ATTORNEY
GENERAL. 

STEPHEN P. BERZON ARGUED THE CAUSE FOR APPELLEES PRO HAC VICE.  WITH
HIM ON THE BRIEF WAS KENNETH F. PHILLIPS. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL GRAY, ROBERT V. ZENER, AND
PETER G. NASH FOR THE UNITED STATES; BY DUKE W. DUNBAR, ATTORNEY
GENERAL, JOHN P. MOORE, DEPUTY ATTORNEY GENERAL, AND ROBERT L. HARRIS,
ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF COLORADO; BY ROBERT M.
ROBSON, ATTORNEY GENERAL, AND R. LAVAR MARSH, ASSISTANT ATTORNEY
GENERAL, FOR THE STATE OF IDAHO; BY FRANCIS B. BURCH, ATTORNEY GENERAL,
FOR THE STATE OF MARYLAND, JOINED BY THE STATE OF ILLINOIS; BY WARREN
B. RUDMAN, ATTORNEY GENERAL, AND WILLIAM F. CANN, DEPUTY ATTORNEY
GENERAL, FOR THE STATE OF NEW HAMPSHIRE, JOINED BY DAVID M. PACK,
ATTORNEY GENERAL, AND LANCE D. EVANS, ASSISTANT ATTORNEY GENERAL, FOR
THE STATE OF TENNESSEE; BY LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, SAMUEL
A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND BRENDA SOLOFF,
ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF NEW YORK; BY PAUL W.
BROWN, ATTORNEY GENERAL, ANF FRANKLIN R. WRIGHT, ASSISTANT ATTORNEY
GENERAL, FOR THE STATE OF OHIO; AND BY WILLARD Z. CARR, JR., FOR
SOUTHERN CALIFORNIA EDISON CO. ET AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY C. LYONEL
JONES, ED J. POLK, DON B. KATES, JR., AND JOSEPH A. MATERA FOR
CALIFORNIA RURAL LEGAL ASSISTANCE ET AL.; BY J. ALBERT WOLL, LAURENCE
GOLD, AND THOMAS E. HARRIS FOR AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS; BY STEPHEN I. SCHOLOSSBERG, JOHN
A. FILLION, AND JORDAN ROSSEN FOR THE INTERNATIONAL UNION, UAW; AND BY
THE EMPLOYMENT PROJECT, CENTER ON SOCIAL WELFARE POLICY AND LAW. 
..END :






JAMES V. VALTIERRA, 402 U.S. 137 


       JAMES ET AL. V. VALTIERRA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

        NO. 154.  ARGUED MARCH 3-4, 1971-- DECIDED APRIL 26, 1971

           /0/ 


APPELLEES, WHO ARE ELIGIBLE FOR LOW-COST PUBLIC HOUSING, CHALLENGED
THE REQUIREMENT OF ART. XXXIV OF THE CALIFORNIA CONSTITUTION THAT NO
LOW-RENT HOUSING PROJECT BE DEVELOPED, CONSTRUCTED, OR ACQUIRED BY ANY
STATE PUBLIC BODY WITHOUT THE APPROVAL OF A MAJORITY OF THOSE VOTING AT
A COMMUNITY ELECTION, AS VIOLATIVE OF THE SUPREMACY, PRIVILEGES AND
IMMUNITIES, AND EQUAL PROTECTION CLAUSES OF THE UNITED STATES
CONSTITUTION.  A THREE-JUDGE DISTRICT COURT ENJOINED THE ENFORCEMENT OF
THE REFERENDUM PROVISION ON THE GROUND THAT IT DENIED APPELLEES EQUAL
PROTECTION OF THE LAWS, RELYING CHIEFLY ON HUNTER V. ERICKSON, 393 U.S.
385.  HELD:  THE CALIFORNIA PROCEDURE FOR MANDATORY REFERENDUMS, WHICH
IS NOT LIMITED TO PROPOSALS INVOLVING LOW-COST PUBLIC HOUSING, ENSURES
DEMOCRATIC DECISIONMAKING, AND DOES NOT VIOLATE THE EQUAL PROTECTION
CLAUSE.  HUNTER V. ERICKSON, SUPRA, DISTINGUISHED.  PP. 140-143. 

313 F.SUPP.  1, REVERSED AND REMANDED. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND HARLAN, STEWART, AND WHITE, JJ., JOINED.  MARSHALL, J., FILED
A DISSENTING OPINION, IN WHICH BRENNAN AND BLACKMUN, JJ., JOINED, POST,
P. 143.  DOUGLAS, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THESE CASES RAISE BUT A SINGLE ISSUE.  IT GROWS OUT OF THE UNITED
STATES HOUSING ACT OF 1937, 50 STAT. 888, AS AMENDED, 42 U.S.C. 1401 ET
SEQ., WHICH ESTABLISHED A FEDERAL HOUSING AGENCY AUTHORIZED TO MAKE
LOANS AND GRANTS TO STATE AGENCIES FOR SLUM CLEARANCE AND LOW-RENT
HOUSING PROJECTS.  IN RESPONSE, THE CALIFORNIA LEGISLATURE CREATED IN
EACH COUNTY AND CITY A PUBLIC HOUSING AUTHORITY TO TAKE ADVANTAGE OF
THE FINANCING MADE AVAILABLE BY THE FEDERAL HOUSING ACT.  SEE CAL.
HEALTH & SAFETY CODE SEC. 34240.  AT THE TIME THE FEDERAL LEGISLATION
WAS PASSED THE CALIFORNIA CONSTITUTION HAD FOR MANY YEARS RESERVED TO
THE STATE'S PEOPLE THE POWER TO INITIATE LEGISLATION AND TO REJECT OR
APPROVE BY REFERENDUM ANY ACT PASSED BY THE STATE LEGISLATURE.  CAL.
CONST., ART. IV, SEC. 1.  THE SAME SECTION RESERVED TO THE ELECTORS OF
COUNTIES AND CITIES THE POWER OF INITIATIVE AND REFERENDUM OVER ACTS OF
LOCAL GOVERNMENT BODIES.  IN 1950, HOWEVER, THE STATE SUPREME COURT
HELD THAT LOCAL AUTHORITIES' DECISIONS ON SEEKING FEDERAL AID FOR
PUBLIC HOUSING PROJECTS WERE "EXECUTIVE" AND "ADMINISTRATIVE," NOT
"LEGISLATIVE," AND THEREFORE THE STATE CONSTITUTION'S REFERENDUM
PROVISIONS DID NOT APPLY TO THESE ACTIONS.  /1/  WITHIN SIX MONTHS OF
THAT DECISION THE CALIFORNIA VOTERS ADOPTED ARTICLE XXXIV OF THE STATE
CONSTITUTION TO BRING PUBLIC HOUSING DECISIONS UNDER THE STATE'S
REFERENDUM POLICY.  THE ARTICLE PROVIDED THAT NO LOW-RENT HOUSING
PROJECT SHOULD BE DEVELOPED, CONSTRUCTED, OR ACQUIRED IN ANY MANNER BY
A STATE PUBLIC BODY UNTIL THE PROJECT WAS APPROVED BY A MAJORITY OF
THOSE VOTING AT A COMMUNITY ELECTION.  /2/ 

THE PRESENT SUITS WERE BROUGHT BY CITIZENS OF SAN JOSE, CALIFORNIA,
AND SAN MATEO COUNTY, LOCALITIES WHERE HOUSING AUTHORITIES COULD NOT
APPLY FOR FEDERAL FUNDS BECAUSE LOW-COST HOUSING PROPOSALS HAD BEEN
DEFEATED IN REFERENDUMS.  THE PLAINTIFFS, WHO ARE ELIGIBLE FOR LOW-COST
PUBLIC HOUSING, SOUGHT A DECLARATION THAT ARTICLE XXXIV WAS
UNCONSTITUTIONAL BECAUSE ITS REFERENDUM REQUIREMENT VIOLATED:  (1) THE
SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION; (2) THE PRIVILEGES
AND IMMUNITIES CLAUSE; AND (3) THE EQUAL PROTECTION CLAUSE.  A THREE
JUDGE COURT HELD THAT ARTICLE XXXIV DENIED THE PLAINTIFFS EQUAL
PROTECTION OF THE LAWS AND IT ENJOINED ITS ENFORCEMENT.  313 F.SUPP.  1
(ND CAL. 1970).  TWO APPEALS WERE TAKEN FROM THE JUDGMENT, ONE BY SAN
JOSE CITY COUNCIL, AND THE OTHER BY A SINGLE MEMBER OF THE COUNCIL.  WE
NOTED PROBABLE JURISDICTION OF BOTH APPEALS.  398 U.S. 949 (1970); 399
U.S. 925 (1970).  FOR THE REASONS THAT FOLLOW, WE REVERSE. 

THE THREE-JUDGE COURT FOUND THE SUPREMACY CLAUSE ARGUMENT
UNPERSUASIVE, AND WE AGREE.  BY THE HOUSING ACT OF 1037 THE FEDERAL
GOVERNMENT HAS OFFERED AID TO STATE AND LOCAL GOVERNMENTS FOR THE
CREATION OF LOW-RENT PUBLIC HOUSING.  HOWEVER, THE FEDERAL LEGISLATION
DOES NOT PURPORT TO REQUIRE THAT LOCAL GOVERNMENTS ACCEPT THIS OR TO
OUTLAW LOCAL REFERENDUMS ON WHETHER THE AID SHOULD BE ACCEPTED.  WE
ALSO FIND THE PRIVILEGES AND IMMUNITIES ARGUMENT WITHOUT MERIT. 

WHILE THE DISTRICT COURT CITED SEVERAL CASES OF THIS COURT, ITS
CHIEF RELIANCE PLAINLY RESTED ON HUNTER V. ERICKSON, 393 U.S. 385
(1969).  THE FIRST PARAGRAPH IN THE DISTRICT COURT'S DECISION STATED
SIMPLY:  "WE HOLD ARTICLE XXXIV TO BE UNCONSTITUTIONAL.  SEE HUNTER V.
ERICKSON . . . ."  THE COURT BELOW ERRED IN RELYING ON HUNTER TO
INVALIDATE ARTICLE XXXIV.  UNLIKE THE CASE BEFORE US, HUNTER RESTED ON
THE CONCLUSION THAT AKRON'S REFERENDUM LAW DENIED EQUAL PROTECTION BY
PLACING "SPECIAL BURDENS ON RACIAL MINORITIES WITHIN THE GOVERNMENTAL
PROCESS."  ID., AT 391.  IN HUNTER THE CITIZENS OF AKRON HAD AMENDED
THE CITY CHARTER TO REQUIRE THAT ANY ORDINANCE REGULATING REAL ESTATE
ON THE BASIS OF RACE, COLOR, RELIGION, OR NATIONAL ORIGIN COULD NOT
TAKE EFFECT WITHOUT APPROVAL BY A MAJORITY OF THOSE VOTING IN A CITY
ELECTION.  THE COURT HELD THAT THE AMENDMENT CREATED A CLASSIFICATION
BASED UPON RACE BECAUSE IT REQUIRED THAT LAWS DEALING WITH RACIAL
HOUSING MATTERS COULD TAKE EFFECT ONLY IF THEY SURVIVED A MANDATORY
REFERENDUM WHILE OTHER HOUSING ORDINANCES TOOK EFFECT WITHOUT ANY SUCH
SPECIAL ELECTION.  THE OPINION NOTED: 

     "BECAUSE THE CORE OF THE FOURTEENTH AMENDMENT IS THE
PREVENTION

  OF MEANINGFUL AND UNJUSTIFIED OFFICIAL DISTINCTIONS BASED ON

  RACE, (CITING A GROUP OF RACIAL DISCRIMINATION CASES) RACIAL

  CLASSIFICATIONS ARE 'CONSTITUTIONALLY SUSPECT' . . . AND SUBJECT

  TO THE 'MOST RIGID SCRUTINY.'  . . . THEY 'BEAR A FAR HEAVIER

  BURDEN OF JUSTIFICATION' THAN OTHER CLASSIFICATIONS."  ID., AT

  391-392. 

THE COURT CONCLUDED THAT AKRON HAD ADVANCED NO SUFFICIENT REASONS TO
JUSTIFY THIS RACIAL CLASSIFICATION AND HENCE THAT IT WAS
UNCONSTITUTIONAL UNDER THE FOURTEENTH AMENDMENT. 

UNLIKE THE AKRON REFERENDUM PROVISION, IT CANNOT BE SAID THAT
CALIFORNIA'S ARTICLE XXXIV RESTS ON "DISTINCTIONS BASED ON RACE."  ID.,
AT 391.  THE ARTICLE REQUIRES REFERENDUM APPROVAL FOR ANY LOW-RENT
PUBLIC HOUSING PROJECT, NOT ONLY FOR PROJECTS WHICH WILL BE OCCUPIED BY
A RACIAL MINORITY.  AND THE RECORD HERE WOULD NOT SUPPORT ANY CLAIM
THAT A LAW SEEMINGLY NEUTRAL ON ITS FACE IS IN FACT AIMED AT A RACIAL
MINORITY.  CF. COMILLION V. LIGHTFOOT, 364 U.S. 339 (1960).  THE
PRESENT CASE COULD BE AFFIRMED ONLY BY EXTENDING HUNTER, AND THIS WE
DECLINE TO DO. 

CALIFORNIA'S ENTIRE HISTORY DEMONSTRATES THE REPEATED USE OF
REFERENDUMS TO GIVE CITIZENS A VOICE ON QUESTIONS OF PUBLIC POLICY.  A
REFERENDUM PROVISION WAS INCLUDED IN THE FIRST STATE CONSTITUTION, CAL.
CONST. OF 1849, ART. VIII, AND REFERENDUMS HAVE BEEN A COMMONPLACE
OCCURRENCE IN THE STATE'S ACTIVE POLITICAL LIFE.  /3/  PROVISIONS FOR
REFERENDUMS DEMONSTRATE DEVOTION TO DEMOCRACY, NOT TO BIAS,
DISCRIMINATION, OR PREJUDICE.  NONETHELESS, APPELLEES CONTEND THAT
ARTICLE XXXIV DENIES THEM EQUAL PROTECTION BECAUSE IT DEMANDS A
MANDATORY REFERENDUM WHILE MANY OTHER REFERENDUMS ONLY TAKE PLACE UPON
CITIZEN INITIATIVE.  THEY SUGGEST THAT THE MANDATORY NATURE OF THE
ARTICLE XXXIV REFERENDUM CONSTITUTES UNCONSTITUTIONAL DISCRIMINATION
BECAUSE IT HAMPERS PERSONS DESIRING PUBLIC HOUSING FROM ACHIEVING THEIR
OBJECTIVE WHEN NO SUCH ROADBLOCK FACES OTHER GROUPS SEEKING TO
INFLUENCE OTHER PUBLIC DECISIONS TO THEIR ADVANTAGE.  BUT OF COURSE A
LAWMAKING PROCEDURE THAT "DISADVANTAGES" A PARTICULAR GROUP DOES NOT
ALWAYS DENY EQUAL PROTECTION.  UNDER ANY SUCH HOLDING, PRESUMABLY A
STATE WOULD NOT BE ABLE TO REQUIRE REFERENDUMS ON ANY SUBJECT UNLESS
REFERENDUMS WERE REQUIRED ON ALL, BECAUSE THEY WOULD ALWAYS
DISADVANTAGE SOME GROUP.  AND THIS COURT WOULD BE REQUIRED TO ANALYZE
GOVERNMENTAL STRUCTURES TO DETERMINE WHETHER A GUBERNATORIAL VETO
PROVISION OR A FILIBUSTER RULE IS LIKELY TO "DISADVANTAGE" ANY OF THE
DIVERSE AND SHIFTING GROUPS THAT MAKE UP THE AMERICAN PEOPLE. 

FURTHERMORE, AN EXAMINATION OF CALIFORNIA LAW REVEALS THAT PERSONS
ADVOCATING LOW-INCOME HOUSING HAVE NOT BEEN SINGLED OUT FOR MANDATORY
REFERENDUMS WHILE NO OTHER GROUP MUST FACE THAT OBSTACLE.  MANDATORY
REFERENDUMS ARE REQUIRED FOR APPROVAL OF STATE CONSTITUTIONAL
AMENDMENTS, FOR THE ISSUANCE OF GENERAL OBLIGATION LONG-TERM BONDS BY
LOCAL GOVERNMENTS, AND FOR CERTAIN MUNICIPAL TERRITORIAL ANNEXATIONS. 
SEE CAL. CONST., ART. XVIII; ART. XIII, SEC. 40; ART. XI, SEC. 2(B). 
CALIFORNIA STATUTE BOOKS CONTAIN MUCH LEGISLATION FIRST ENACTED BY
VOTER INITIATIVE, AND NO SUCH LAW CAN BE REPEALED OR AMENDED EXCEPT BY
REFERENDUM.  CAL. CONST., ART. IV, SEC. 24(C).  SOME CALIFORNIA CITIES
HAVE WISELY PROVIDED THAT THEIR PUBLIC PARKS MAY NOT BE ALIENATED
WITHOUT MANDATORY REFERENDUMS, SEE, E.G., SAN JOSE CHARTER SEC. 1700. 

THE PEOPLE OF CALIFORNIA HAVE ALSO DECIDED BY THEIR OWN VOTE TO
REQUIRE REFERENDUM APPROVAL OF LOW-RENT PUBLIC HOUSING PROJECTS.  THIS
PROCEDURE ENSURES THAT ALL THE PEOPLE OF A COMMUNITY WILL HAVE A VOICE
IN A DECISION WHICH MAY LEAD TO LARGE EXPENDITURES OF LOCAL
GOVERNMENTAL FUNDS FOR INCREASED PUBLIC SERVICES AND TO LOWER TAX
REVENUES.  /4/  IT GIVES THEM A VOICE IN DECISIONS THAT WILL AFFECT THE
FUTURE DEVELOPMENT OF THEIR OWN COMMUNITY.  THIS PROCEDURE FOR
DEMOCRATIC DECISIONMAKING DOES NOT VIOLATE THE CONSTITUTIONAL COMMAND
THAT NO STATE SHALL DENY TO ANY PERSON "THE EQUAL PROTECTION OF THE
LAWS." 

THE JUDGMENT OF THE THREE-JUDGE COURT IS REVERSED AND THE CASES ARE
REMANDED FOR DISMISSAL OF THE COMPLAINT. 

              REVERSED AND REMANDED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

/0/  TOGETHER WITH NO. 226, SHAFFER V. VALTIERRA ET AL., ALSO ON
APPEAL FROM THE SAME COURT, ARGUED MARCH 4, 1971. 

/1/  HOUSING AUTHORITY V. SUPERIOR COURT, 35 CAL.2D 550, 557-558,
219 P.2D 457, 460-461 (1950). 

/2/  "SECTION 1.  NO LOW RENT HOUSING PROJECT SHALL HEREAFTER BE
DEVELOPED, CONSTRUCTED, OR ACQUIRED IN ANY MANNER BY ANY STATE PUBLIC
BODY UNTIL, A MAJORITY OF THE QUALIFIED ELECTORS OF THE CITY, TOWN OR
COUNTY, AS THE CASE MAY BE, IN WHICH IT IS PROPOSED TO DEVELOP,
CONSTRUCT, OR ACQUIRE THE SAME, VOTING UPON SUCH ISSUE, APPROVE SUCH
PROJECT BY VOTING IN FAVOR THEREOF AT AN ELECTION TO BE HELD FOR THAT
PURPOSE, OR AT ANY GENERAL OR SPECIAL ELECTION. 

"FOR THE PURPOSES OF THIS ARTICLE THE TERM 'LOW RENT HOUSING
PROJECT' SHALL MEAN ANY DEVELOPMENT COMPOSED OF URBAN OR RURAL
DWELLINGS, APARTMENTS OR OTHER LIVING ACCOMMODATIONS FOR PERSONS OF LOW
INCOME, FINANCED IN WHOLE OR IN PART BY THE FEDERAL GOVERNMENT OR A
STATE PUBLIC BODY EXTENDS ASSISTANCE BY SUPPLYING ALL OR PART OF THE
LABOR, BY GUARANTEEING THE PAYMENT OF LIENS, OR OTHERWISE . . . . 

"FOR THE PURPOSES OF THIS ARTICLE ONLY 'PERSONS OF LOW INCOME' SHALL
MEAN PERSONS OR FAMILIES WHO LACK THE AMOUNT OF INCOME WHICH IS
NECESSARY (AS DETERMINED BY THE STATE PUBLIC BODY DEVELOPING,
CONSTRUCTING, OR ACQUIRING THE HOUSING PROJECT) TO ENABLE THEM, WITHOUT
FINANCIAL ASSISTANCE, TO LIVE IN DECENT, SAFE AND SANITARY DWELLINGS,
WITHOUT OVERCROWDING." 

/3/  SEE, E.G., W. CROUCH, THE INITIATIVE AND REFERENDUM IN
CALIFORNIA (1950). 

/4/  PUBLIC LOW-RENT HOUSING PROJECTS ARE FINANCED THROUGH BONDS
ISSUED BY THE LOCAL HOUSING AUTHORITY.  TO BE SURE, THE FEDERAL
GOVERNMENT CONTRACTS TO MAKE CONTRIBUTIONS SUFFICIENT TO COVER INTEREST
AND PRINCIPAL, BUT THE LOCAL GOVERNMENT BODY MUST AGREE TO PROVIDE ALL
MUNICIPAL SERVICES FOR THE UNITS AND TO WAIVE ALL TAXES ON THE
PROPERTY.  THE LOCAL SERVICES TO BE PROVIDED INCLUDE SCHOOLS, POLICE,
AND FIRE PROTECTION, SEWERS, STREETS, DRAINS, AND LIGHTING.  SOME OF
THE COST IS DEFRAYED BY THE LOCAL GOVERNING BODY'S RECEIPT OF 10% OF
THE HOUSING PROJECT RENTALS, BUT OF COURSE THE RENTALS ARE SET
ARTIFICIALLY LOW.  BOTH APPELLANTS AND APPELLEES AGREE THAT THE
BUILDING OF FEDERALLY FINANCED LOW-COST HOUSING ENTAILS COSTS TO THE
LOCAL COMMUNITY.  APPELLANT SHAFFER'S BRIEF 34-35.  APPELLEES' BRIEF
47.  SEE ALSO 42 U.S.C. 1401-1430. 

MR. JUSTICE MARSHALL, WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

BY ITS VERY TERMS, THE MANDATORY PRIOR REFERENDUM PROVISION OF ART.
XXXIV APPLIES SOLELY TO 

"ANY DEVELOPMENT COMPOSED OF URBAN OR RURAL DWELLINGS, APARTMENTS OR
OTHER LIVING ACCOMMODATIONS FOR PERSONS OF LOW INCOME, FINANCED IN
WHOLE OR IN PART BY THE FEDERAL GOVERNMENT OR A STATE PUBLIC BODY OR TO
WHICH THE FEDERAL GOVERNMENT OR A STATE PUBLIC BODY EXTENDS ASSISTANCE
BY SUPPLYING ALL OR PART OF THE LABOR, BY GUARANTEEING THE PAYMENT OF
LIENS, OR OTHERWISE."  PERSONS OF LOW INCOME ARE DEFINED AS 

"PERSONS OR FAMILIES WHO LACK THE AMOUNT OF INCOME WHICH IS
NECESSARY . . . TO ENABLE THEM, WITHOUT FINANCIAL ASSISTANCE, TO LIVE
IN DECENT, SAFE AND SANITARY DWELLINGS, WITHOUT OVERCORWDING."  THE
ARTICLE EXPLICITLY SINGLES OUT LOW-INCOME PERSONS TO BEAR ITS BURDEN. 
PUBLICLY ASSISTED HOUSING DEVELOPMENTS DESIGNED TO ACCOMMODATE THE
AGED, VETERANS, STATE EMPLOYEES, PERSONS OF MODERATE INCOME, OR ANY
CLASS OF CITIZENS OTHER THAN THE POOR, NEED NOT BE APPROVED BY PRIOR
REFERENDA.  /1/ 

IN MY VIEW, ART. XXXIV ON ITS FACE CONSTITUTES INVIDIOUS
DISCRIMINATION WHICH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT PLAINLY PROHIBITS.  "THE STATES, OF COURSE, ARE PROHIBITED BY
THE EQUAL PROTECTION CLAUSE FROM DISCRIMINATING BETWEEN 'RICH' AND
'POOR' AS SUCH IN THE FORMULATION AND APPLICATION OF THEIR LAWS." 
DOUGLAS V. CALIFORNIA, 372 U.S. 353, 361 (1963) (HARLAN, J.,
DISSENTING).  ARTICLE XXXIV IS NEITHER "A LAW OF GENERAL APPLICABILITY
THAT MAY AFFECT THE POOR MORE HARSHLY THAN IT DOES THE RICH," IBID.,
NOR AN "EFFORT TO REDRESS ECONOMIC IMBALANCES," IBID.  IT IS RATHER AN
EXPLICIT CLASSIFICATION ON THE BASIS OF POVERTY-- A SUSPECT
CLASSIFICATION WHICH DEMANDS EXATING JUDICIAL SCRUTINY, SEE MCDONALD V.
BOARD OF ELECTION, 394 U.S. 802, 807 (1969); HARPER V. VIRGINIA BOARD
OF ELECTIONS, 383 U.S. 663 (1966); DOUGLAS V. CALIFORNIA, SUPRA. 

THE COURT, HOWEVER, CHOOSES TO SUBJECT THE ARTICLE TO NO SCRUTINY
WHATSOEVER AND TREATS THE PROVISION AS IF IT CONTAINED A TOTALLY
BENIGN, TECHINICAL ECONOMIC CLASSIFICATION.  BOTH THE APPELLEES AND THE
SOLICITOR GENERAL OF THE UNITED STATES AS AMICUS CURIAE HAVE
STRENUOUSLY ARGUED, AND THE COURT BELOW FOUND, THAT ART. XXXIV, BY
IMPOSING A SUBSTANTIAL BURDEN SOLELY ON THE POOR, VIOLATES THE
FOURTEENTH AMENDMENT.  YET AFTER OBSERVING THAT THE ARTICLE DOES NOT
DISCRIMINATE ON THE BASIS OF RACE, THE COURT'S ONLY RESPONSE TO THE
REAL QUESTION IN THESE CASES IS THE UNRESPONSIVE ASSERTION THAT
"REFERENDUMS DEMONSTRATE DEVOTION TO DEMOCRACY, NOT TO BIAS,
DISCRIMINATION, OR PREJUDICE."  IT IS FAR TOO LATE IN THE DAY TO
CONTEND THAT THE FOURTEENTH AMENDMENT PROHIBITS ONLY RACIAL
DISCRIMINATION; AND TO ME, SINGLING OUT THE POOR TO BEAR A BURDEN NOT
PLACED ON ANY OTHER CLASS OF CITIZENS TRAMPLES THE VALUES THAT THE
FOURTEENTH AMENDMENT WAS DESIGNED TO PROTECT.     I RESPECTFULLY
DISSENT.     /1/  CALIFORNIA LAW AUTHORIZES THE FORMATION OF RENEWAL
AREA AGENCIES WHOSE PURPOSES INCLUDE THE CONSTRUCTION OF "LOW-INCOME,
MIDDLE-INCOME AND NORMAL-MARKET HOUSING," CAL. HEALTH & SAFETY CODE
SEC. 33701 ET SEQ. ONLY LOW-INCOME HOUSING PROGRAMS ARE SUBJECT TO THE
MANDATORY REFERENDUM PROVISION OF ART. XXXIV EVEN THOUGH ALL OF THE
AGENCIES' PROGRAMS MAY RECEIVE SUBSTANTIAL GOVERNMENTAL ASSISTANCE. 

DONALD C. ATKINSON ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANTS
IN NO. 154.  MOSES LASKY ARGUED THE CAUSE FOR APPELLANT IN NO. 226. 
WITH HIM ON THE BRIEFS WAS MALCOLM T. DUNGAN. 

ARCHIBALD COX ARGUED THE CAUSE FOR APPELLEES IN BOTH CASES.  ON THE
BRIEF WERE LOIS P. SHEINFELD AND ANTHONY G. AMSTERDAM.  WARREN
CHRISTOPHER AND DONALD M. WESSLING FILED A BRIEF FOR APPELLEE HOUSING
AUTHORITY OF THE CITY OF SAN JOSE IN BOTH CASES. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN BOTH CASES WERE FILED BY
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL LEONARD, AND
LAWRENCE G. WALLACE FOR THE UNITED STATES, AND BY LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT
ATTORNEY GENERAL, AND GEORGE D. ZUCKERMAN, DOMINICK J. TUMINARO, AND
LLOYD G. MILLIKEN, ASSISTANT ATTORNEYS GENERAL, FOR THE ATTORNEY
GENERAL OF THE STATE OF NEW YORK. 
..END :










PEREZ V. UNITED STATES, 402 U.S. 146 


       PEREZ V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 600.  ARGUED MARCH 22, 1971-- DECIDED APRIL 26, 1971 


PETITIONER WAS CONVICTED OF "LOAN SHARKING" ACITIVITIES, I.E.,
UNLAWFULLY USING EXTORTIONATE MEANS IN COLLECTING AND ATTEMPTING TO
COLLECT AN EXTENSION OF CREDIT, IN VIOLATION OF TITLE II OF THE
CONSUMER CREDIT PROTECTION ACT, AND HIS CONVICTION WAS AFFIRMED ON
APPEAL.  HE CHALLENGES THE CONSTITUTIONALITY OF THE STATUTE ON THE
GROUND THAT CONGRESS HAS NO POWER TO CONTROL THE LOCAL ACTIVITY OF LOAN
SHARKING.  HELD:  TITLE II OF THE CONSUMER CREDIT PROTECTION ACT IS
WITHIN CONGRESS' POWER UNDER THE COMMERCE CLAUSE TO CONTROL ACTIVITIES
AFFECTING INTERSTATE COMMERCE AND CONGRESS' FINDINGS ARE ADEQUATE TO
SUPPORT ITS CONCLUSION THAT LOAN SHARKS WHO USE EXTORTIONATE MEANS TO
COLLECT PAYMENTS ON LOANS ARE IN A CLASS LARGELY CONTROLLED BY
ORGANIZED CRIME WITH A SUBSTANTIALLY ADVERSE EFFECT ON INTERSTATE
COMMERCE.  PP. 149-157. 

426 F.2D 1073, AFFIRMED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, HARLAN, BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  STEWART, J., FILED A DISSENTING OPINION, POST, P. 157. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER TITLE II OF THE CONSUMER CREDIT
PROTECTION ACT, 82 STAT. 159, 18 U.S.C. 891 ET SEQ. (1964 ED., SUPP.
V), AS CONSTRUED AND APPLIED TO PETITIONER, IS A PERMISSIBLE EXERCISE
BY CONGRESS OF ITS POWERS UNDER THE COMMERCE CLAUSE OF THE
CONSTITUTION.  PETITIONER'S CONVICTION AFTER TRIAL BY JURY AND HIS
SENTENCE WERE AFFIRMED BY THE COURT OF APPEALS, ONE JUDGE DISSENTING. 
426 F.2D 1073.  WE GRANTED THE PETITION FOR A WRIT OF CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED.  400 U.S. 915.  WE
AFFIRM THAT JUDGMENT. 

PETITIONER IS ONE OF THE SPECIES COMMONLY KNOWN AS "LOAN SHARKS"
WHICH CONGRESS FOUND ARE IN LARGE PART UNDER THE CONTROL OF "ORGANIZED
CRIME."  /1/  "EXTORTIONATE CREDIT TRANSACTIONS" ARE DEFINED AS THOSE
CHARACTERIZED BY THE USE OR THREAT OF THE USE OF "VIOLENCE OR OTHER
CRIMINAL MEANS" IN ENFORCEMENT.  /2/  THERE WAS AMPLE EVIDENCE SHOWING
PETITIONER WAS A "LOAN SHARK" WHO USED THE THREAT OF VIOLENCE AS A
METHOD OF COLLECTION.  HE LOANED MONEY TO ONE MIRANDA, OWNER OF A NEW
BUTCHER SHOP, MAKING A $1,000 ADVANCE TO BE REPAID IN INSTALLMENTS OF
$105 PER WEEK FOR 14 WEEKS.  AFTER PAYING AT THIS RATE FOR SIX OR EIGHT
WEEKS, PETITIONER INCREASED THE WEEKLY PAYMENT TO $130.  IN TWO MONTHS
MIRANDA ASKED FOR AN ADDITIONAL LOAN OF $2,000 WHICH WAS MADE, THE
AGREEMENT BEING THAT MIRANDA WAS TO PAY $205 A WEEK.  IN A FEW WEEKS
PETITIONER INCREASED THE WEEKLY PAYMENTS TO $330.  WHEN MIRANDA
OBJECTED, PETITIONER TOLD HIM ABOUT A CUSTOMER WHO REFUSED TO PAY AND
ENDED UP IN A HOSPITAL.  SO MIRANDA PAID.  IN A FEW MONTHS PETITIONER
INCREASED HIS DEMANDS TO $500 WEEKLY WHICH MIRANDA PAID, ONLY TO BE
ADVISED THAT AT THE END OF THE WEEK PETITIONER WOULD NEED $1,000. 
MIRANDA MADE THAT PAYMENT BY NOT PAYING HIS SUPPLIERS; BUT, FACED WITH
A $1,000 PAYMENT THE NEXT WEEK, HE SOLD HIS BUTCHER SHOP.  PETITIONER
PURSUED MIRANDA, FIRST MAKING THREATS TO MIRANDA'S WIFE AND THEN
TELLING MIRANDA HE COULD HAVE HIM CASTRATED.  WHEN MIRANDA DID NOT MAKE
MORE PAYMENTS, PETITIONER SAID HE WAS TURNING OVER HIS COLLECTIONS TO
PEOPLE WHO WOULD NOT BE NICE BUT WHO WOULD PUT HIM IN THE HOSPITAL IF
HE DID NOT PAY.  NEGOTIATIONS WENT ON, MIRANDA FINALLY SAYING HE COULD
ONLY PAY $25 A WEEK.  PETITIONER SAID THAT WAS NOT ENOUGH, THAT MIRANDA
SHOULD STEAL OR SELL DRUGS IF NECESSARY TO GET THE MONEY TO PAY THE
LOAN, AND THAT IF HE WENT TO JAIL IT WOULD BE BETTER THAN GOING TO A
HOSPITAL WITH A BROKEN BACK OR LEGS.  HE ADDED, "I COULD HAVE SENT YOU
TO THE HOSPITAL, YOU AND YOUR FAMILY, ANY MOMENT I WANT WITH MY
PEOPLE." 

PETITIONER'S ARREST FOLLOWED.  MIRANDA, HIS WIFE, AND AN EMPLOYEE
GAVE THE EVIDENCE AGAINST PETITIONER WHO DID NOT TESTIFY OR CALL ANY
WITNESSES.  PETITIONER'S ATTACK WAS ON THE CONSTITUTIONALITY OF THE
ACT, STARTING WITH A MOTION TO DISMISS THE INDICTMENT. 

THE CONSTITUTIONAL QUESTION IS A SUBSTANTIAL ONE. 

TWO "LOAN SHARK" AMENDMENTS TO THE BILL THAT BECAME THIS ACT WERE
PROPOSED IN THE HOUSE-- ONE BY CONGRESSMAN POFF OF VIRGINIA, 114
CONG.REC.  1605-1606 AND ANOTHER ONE BY CONGRESSMAN MCDADE OF
PENNSYLVANIA.  ID., AT 1609-1610. 

THE HOUSE DEBATES INCLUDE A LONG ARTICLE FROM THE NEW YORK TIMES
MAGAZINE FOR JANUARY 28, 1968, ON THE CONNECTION BETWEEN THE "LOAN
SHARK" AND ORGANIZED CRIME.  ID., AT 1428-1431.  THE GRUESOME AND
STIRRING EPISODES RELATED HAVE THE FOLLOWING AS A PRELUDE: 

 "THE LOAN SHARK, THEN, IS THE INDISPENSABLE 'MONEYMOVER' OF THE

  UNDERWORLD.  HE TAKES 'BLACK' MONEY TAINTED BY ITS DERIVATION

  FROM THE GAMBLING OR NARCOTICS RACKETS AND TURNS IT 'WHITE' BY

  FUNNELING IT INTO CHANNELS OF LEGITIMATE TRADE.  IN SO DOING, HE

  EXACTS USURIOUS INTEREST THAT DOUBLES THE BLACK-WHITE MONEY IN NO

  TIME; AND, BY HIS SPECIAL DECREES, BY HIS IMPOSITION OF

  IMPOSSIBLE PENALTIES, HE GREASES THE WAY FOR THE UNDERWORLD

  TAKEOVER OF ENTIRE BUSINESSES."  ID., AT 1429. 

THERE WERE OBJECTIONS ON CONSTITUTIONAL GROUNDS.  CONGRESSMAN
ECKHARDT OF TEXAS SAID: 

"SHOULD IT BECOME LAW, THE AMENDMENT WOULD TAKE A LONG STRIDE BY THE
FEDERAL GOVERNMENT TOWARD OCCUPYING THE FILED OF GENERAL CRIMINAL LAW
AND TOWARD EXERCISING A GENERAL FEDERAL POLICE POWER; AND IT WOULD
PERMIT PROSECUTION IN FEDERAL AS WELL AS STATE COURTS OF A TYPICALLY
STATE OFFENSE. 

        .   .          .          . 

"I BELIEVE THAT ALEXANDER HAMILTON, THOUGH A FEDERALIST, WOULD BE
ASTONISHED THAT SUCH A DEEP ENTRENCHMENT ON THE RIGHTS OF THE STATES IN
PERFORMING THEIR MOST FUNDAMENTAL FUNCTION SHOULD COME FROM THE MORE
CONSERVATIVE QUARTER OF THE HOUSE."  ID., AT 1610. 

SENATOR PROXMIRE PRESENTED TO THE SENATE THE CONFERENCE REPORT
APPROVING ESSENTIALLY THE "LOAN SHARK" PROVISIONS SUGGESTED BY
CONGRESSMAN MCDADE, SAYING: 

     "ONCE AGAIN THESE PROVISIONS RAISED SERIOUS QUESTIONS OF

  FEDERAL-STATE RESPONSIBILITIES.  NONETHELESS, BECAUSE OF THE

  IMPORTANCE OF THE PROBLEM, THE SENATE CONFEREES AGREED TO THE

  HOUSE PROVISION.  ORGANIZED CRIME OPERATES ON A NATIONAL SCALE. 

  ONE OF THE PRINCIPAL SOURCES OF REVENUE OF ORGANIZED CRIME COMES

  FROM LOAN SHARKING.  IF WE ARE TO WIN THE BATTLE AGAINST

  ORGANIZED CRIME WE MUSH STRIKE AT THEIR SOURCE OF REVENUE AND

  GIVE THE JUSTICE DEPARTMENT ADDITIONAL TOOLS TO DEAL WITH THE

  PROBLEM.  THE PROBLEM SIMPLY CANNOT BE SOLVED BY THE STATES

ALONE.  WE MUST BRING INTO PLAY THE FULL RESOURCES OF THE FEDERAL

  GOVERNMENT."  ID., AT 14490. 

THE COMMERCE CLAUSE REACHES, IN THE MAIN, THREE CATEGORIES OF
PROBLEMS.  FIRST, THE USE OF CHANNELS OF INTERSTATE OR FOREIGN COMMERCE
WHICH CONGRESS DEEMS ARE BEING MISUSED, AS, FOR EXAMPLE, THE SHIPMENT
OF STOLEN GOODS (18 U.S.C. 2312-2315) OR OF PERSONS WHO HAVE BEEN
KIDNAPED (18 U.S.C. 1201).  SECOND, PROTECTION OF THE INSTRUMENTALITIES
OF INTERSTATE COMMERCE, AS, FOR EXAMPLE, THE DESTRUCTION OF AN AIRCRAFT
(18 U.S.C. 32), OR PERSONS OR THINGS IN COMMERCE, AS, FOR EXAMPLE,
THEFTS FROM INTERSTATE SHIPMENTS (18 U.S.C. 659).  THIRD, THOSE
ACTIVITIES AFFECTING COMMERCE.  IT IS WITH THIS LAST CATEGORY THAT WE
ARE HERE CONCERNED. 

CHIEF JUSTICE MARSHALL IN GIBBONS V. OGDEN, 9 WHEAT.  1, 195, SAID: 

"THE GENIUS AND CHARACTER OF THE WHOLE GOVERNMENT SEEM TO BE, THAT
ITS ACTION IS TO BE APPLIED TO ALL THE EXTERNAL CONCERNS OF THE NATION,
AND TO THOSE INTERNAL CONCERNS WHICH AFFECT THE STATES GENERALLY; BUT
NOT TO THOSE WHICH ARE COMPLETELY WITHIN A PARTICULAR STATE, WHICH DO
NOT AFFECT OTHER STATES, AND WITH WHICH IT IS NOT NECESSARY TO
INTERFERE, FOR THE PURPOSE OF EXECUTING SOME OF THE GENERAL POWERS OF
THE GOVERNMENT.  THE COMPLETELY INTERNAL COMMERCE OF A STATE, THEN, MAY
BE CONSIDERED AS REVERSED FOR THE STATE ITSELF." 

DECISIONS WHICH FOLLOWED DEPARTED FROM THAT VIEW; BUT BY THE TIME OF
UNITED STATES V. DARBY, 312 U.S. 100, AND WICKARD V. FILBURN, 317 U.S.
111, THE BROADER VIEW OF THE COMMERCE CLAUSE ANNOUNCED BY CHIEF JUSTICE
MARSHALL HAD BEEN RESTORED.  CHIEF JUSTICE STONE WROTE FOR A UNANIMOUS
COURT IN 1942 THAT CONGRESS COULD PROVIDE FOR THE REGULATION OF THE
PRICE OF INTRASTATE MILK, THE SALE OF WHICH, IN COMPETITION WITH
INTERSTATE MILK, AFFECTS THE PRICE STRUCTURE AND FEDERAL REGULATION OF
THE LATTER.  UNITED STATES V. WRIGHTWOOD DAIRY CO., 315 U.S. 110.  THE
COMMERCE POWER, HE SAID, "EXTENDS TO THOSE ACTIVITIES INTRASTATE WHICH
SO AFFECT INTERSTATE COMMERCE, OR THE EXERTION OF THE POWER OF CONGRESS
OVER IT, AS TO MAKE REGULATION OF THEM APPROPRIATE MEANS TO THE
ATTAINMENT OF A LEGITIMATE END, THE EFFECTIVE EXECUTION OF THE GRANTED
POWER TO REGULATE INTERSTATE COMMERCE."  ID., AT 119. 

WICKARD V. FILBURN, 317 U.S. 111, SOON FOLLOWED IN WHICH A UNANIMOUS
COURT HELD THAT WHEAT GROWN WHOLLY FOR HOME CONSUMPTION WAS
CONSTITUTIONALLY WITHIN THE SCOPE OF FEDERAL REGULATION OF WHEAT
PRODUCTION BECAUSE, THOUGH NEVER MARKETED INTERSTATE, IT SUPPLIED THE
NEED OF THE GROWER WHICH OTHERWISE WOULD BE SATISFIED BY HIS PURCHASES
IN THE OPEN MARKET.  /3/  WE SAID: 

     "(EVEN IF APPELLEE'S ACTIVITY BE LOCAL AND THOUGH IT MAY NOT
BE

  REGARDED AS COMMERCE, IT MAY STILL, WHATEVER ITS NATURE, BE

REACHED BY CONGRESS IF IT EXERTS A SUBSTANTIAL ECONOMIC EFFECT ON

  INTERSTATE COMMERCE, AND THIS IRRESPECTIVE OF WHETHER SUCH EFFECT

  IS WHAT MIGHT AT SOME EARLIER TIME HAVE BEEN DEFINED AS 'DIRECT'

  OR 'INDIRECT.'"  317 U.S.,AT 125. 

IN UNITED STATES V. DARBY, 312 U.S. 100, THE DECISION SUSTAINING AN
ACT OF CONGRESS WHICH PROHIBITED THE EMPLOYMENT OF WORKERS IN THE
PRODUCTION OF GOODS "FOR INTERSTATE COMMERCE" AT OTHER THAN PRESCRIBED
WAGES AND HOURS, A CLASS OF ACTIVITIES WAS HELD PROPERLY REGULATED BY
CONGRESS WITHOUT PROOF THAT THE PARTICULAR INTRASTATE ACTIVITY AGAINST
WHICH A SANCTION WAS LAID HAD AN EFFECT ON COMMERCE.  A UNANIMOUS COURT
SAID: 

"CONGRESS HAS SOMETIMES LEFT IT TO THE COURTS TO DETERMINE

  WHETHER THE INTRASTATE ACTIVITIES HAVE THE PROHIBITED EFFECT ON

  THE COMMERCE, AS IN THE SHERMAN ACT.  IT HAS SOMETIMES LEFT IT TO

  AN ADMINISTRATIVE BOARD OR AGENCY TO DETERMINE WHETHER THE

  ACTIVITES SOUGHT TO BE REGULATED OR PROHIBITED HAVE SUCH EFFECT,

  AS IN THE CASE OF THE INTERSTATE COMMERCE ACT, AND THE NATIONAL

  LABOR RELATIONS ACT, OR WHETHER THEY COME WITHIN THE STATUTORY

  DEFINITION OF THE PROHIBITED ACT, AS IN THE FEDERAL TRADE

  COMMISSION ACT.  AND SOMETIMES CONGRESS ITSELF HAS SAID THAT A

  PARTICULAR ACTIVITY AFFECTS THE COMMERCE, AS IT DID IN THE

  PRESENT ACT, THE SAFETY APPLIANCE ACT AND THE RAILWAY LABOR ACT. 

  IN PASSING ON THE VALIDITY OF LEGISLATION OF THE CLASS LAST

  MENTIONED THE ONLY FUNCTION OF COURTS IS TO DETERMINE WHETHER THE

  PARTICULAR ACTIVITY REGULATED OR PROHIBITED IS WITHIN THE REACH

  OF THE FEDERAL POWER."  ID., AT 120-121. 

THE CASE IS PARTICULARLY RELEVANT HERE BECAUSE IT INVOLVED A
CRIMINAL PROSECUTION, A UNANIMOUS COURT HOLDING THAT THE ACT WAS
"SUFFICIENTLY DEFINITE TO MEET CONSTITUTIONAL DEMANDS."  ID., AT 125. 
PETITIONER IS CLEARLY A MEMBER OF THE CLASS WHICH ENGAGES IN
"EXTORTIONATE CREDIT TRANSACTIONS" AS DEFINED BY CONGRESS /4/  AND THE
DESCRIPTION OF THAT CLASS HAS THE REQUIRED DEFINITENESS. 

IT WAS THE "CLASS OF ACTIVITIES" TEST WHICH WE EMPLOYED IN ATLANTA
MOTEL V. UNITED STATES, 379 U.S. 241, TO SUSTAIN AN ACT OF CONGRESS
REQUIRING HOTEL OR MOTEL ACCOMMODATIONS FOR NEGRO GUESTS.  THE ACT
DECLARED THAT "'ANY INN, HOTEL, MOTEL, OR OTHER ESTABLISHMENT WHICH
PROVIDES LODGING TO TRANSIENT GUESTS' AFFECTS COMMERCE PER SE."  ID.,
AT 247.  THAT EXERCISE OF POWER UNDER THE COMMERCE CLAUSE WAS
SUSTAINED. 

     "(OUR PEOPLE HAVE BECOME INCREASINGLY MOBILE WITH MILLIONS OF

  PEOPLE OF ALL RACES TRAVELING FROM STATE TO STATE; . . . NEGROES

  IN PARTICULAR HAVE BEEN THE SUBJECT OF DISCRIMINATION IN

  TRANSIENT ACCOMMODATIONS, HAVING TO TRAVEL GREAT DISTANCES TO

  SECURE THE SAME; . . . OFTEN THEY HAVE BEEN UNABLE TO OBTAIN

  ACCOMMODATIONS AND HAVE HAD TO CALL UPON FRIENDS TO PUT THEM UP

  OVERNIGHT . . . AND . . . THESE CONDITIONS HAD BECOME SO ACUTE AS

  TO REQUIRE THE LISTING OF AVAILABLE LODGING FOR NEGROES IN A

  SPECIAL GUIDEBOOK . . ."  ID., AT 252-253. 

IN A COMPANION CASE, KATZENBACH V. MCCLUNG, 379 U.S. 294, WE RULED
ON THE CONSTITUTIONALITY OF THE RESTAURANT PROVISION OF THE SAME CIVIL
RIGHTS ACT WHICH REGULATED THE RESTAURANT "IF . . . IT SERVES OR OFFERS
TO SERVE INTERSTATE TRAVELERS OR A SUBSTANTIAL PORTION OF THE FOOD
WHICH IT SERVES . . . HAS MOVED IN COMMERCE."  ID., AT 298.  APART FROM
THE EFFECT ON THE FLOW OF FOOD IN COMMERCE TO RESTAURANTS, WE SPOKE OF
THE RESTRICTIVE EFFECT OF THE EXCLUSION OF NEGROES FROM RESTAURANTS ON
INTERSTATE TRAVEL BY NEGROES. 

     "(THERE WAS AN IMPRESSIVE ARRAY OF TESTIMONY THAT

 DISCRIMINATION IN RESTAURANTS HAD A DIRECT AND HIGHLY RESTRICTIVE

  EFFECT UPON INTERSTATE TRAVEL BY NEGROES.  THIS RESULTED, IT WAS

  SAID, BECAUSE DISCRIMINATORY PRACTICES PREVENT NEGROES FROM

  BUYING PREPARED FOOD SERVED ON THE PREMISES WHILE ON A TRIP,

  EXCEPT IN ISOLATED AND UNKEMPT RESTAURANTS AND UNDER MOST

  UNSATISFACTORY AND OFTEN UNPLEASANT CONDITIONS.  THIS OBVIOUSLY

  DISCOURAGES TRAVEL AND OBSTRUCTS INTERSTATE COMMERCE FOR ONE CAN

  HARDLY TRAVEL WITHOUT EATING.  LIKEWISE, IT WAS SAID, THAT

  DISCRIMINATION DETERRED PROFESSIONAL, AS WELL AS SKILLED, PEOPLE

FROM MOVING INTO AREAS WHERE SUCH PRACTICES OCCURRED AND THEREBY

  CAUSED INDUSTRY TO BE RELUCTANT TO ESTABLISH THERE."  ID., AT

  300. 

IN EMPHASIS OF OUR POSITION THAT IT WAS THE CLASS OF ACTIVITIES
REGULATED THAT WAS THE MEASURE, WE ACKNOWLEDGED THAT CONGRESS
APPROPRIATELY CONSIDERED THE "TOTAL INCIDENCE" OF THE PRACTICE ON
COMMERCE.  ID., AT 301. 

WHERE THE CLASS OF ACTIVIITES IS REGULATED AND THAT CLASS IS WITHIN
THE REACH OF FEDERAL POWER, THE COURTS HAVE NO POWER "TO EXCISE, AS
TRIVIAL, INDIVIDUAL INSTANCES" OF THE CLASS.  MARYLAND V. WIRTZ, 392
U.S. 183, 193. 

EXTORTIONATE CREDIT TRANSACTIONS, THOUGH PURELY INTRASTATE, MAY IN
THE JUDGMENT OF CONGRESS AFFECT INTERSTATE COMMERCE.  IN AN ANALOGOUS
SITUATION, MR. JUSTICE HOLMES, SPEAKING FOR A UNANIMOUS COURT, SAID:
"(WHEN IT IS NECESSARY IN ORDER TO PREVENT AN EVIL TO MAKE THE LAW
EMBRACE MORE THAN THE PRECISE THING TO BE PREVENTED IT MAY DO SO." 
WESTFALL V. UNITED STATES, 274 U.S. 256, 259.  IN THAT CASE AN OFFICER
OF A STATE BANK WHICH WAS A MEMBER OF THE FEDERAL RESERVE SYSTEM ISSUED
A FRAUDULENT CERTIFICATE OF DEPOSIT AND PAID IT FROM THE FUNDS OF THE
STATE BANK.  IT WAS ARGUED THAT THERE WAS NO LOSS TO THE RESERVE BANK. 
MR. JUSTICE HOLMES REPLIED, "BUT EVERY FRAUD LIKE THE ONE BEFORE US
WEAKENS THE MEMBER BANK AND THEREFORE WEAKENS THE SYSTEM."  ID., AT
259.  IN THE SETTING OF THE PRESENT CASE THERE IS A TIE-IN BETWEEN
LOCAL LOAN SHARKS AND INTERSTATE CRIME.     THE FINDINGS BY CONGRESS
ARE QUITE ADEQUATE ON THAT GROUND.  THE MCDADE AMENDMENT IN THE HOUSE,
AS ALREADY NOTED, WAS THE ONE ULTIMATELY ADOPTED.  AS STATED BY
CONGRESSMAN MCDADE IT GREW OUT OF A "PROFOUND STUDY OF ORGANIZED CRIME,
ITS RAMIFICATIONS AND ITS IMPLICATIONS"  UNDERTAKEN BY SOME 22
CONGRESSMEN IN 1966-1967.  114 CONG.REC.  14391.  THE RESULTS OF THAT
STUDY WERE INCLUDED IN A REPORT, THE URBAN POOR AND ORGANIZED CRIME,
SUBMITTED TO THE HOUSE ON AUGUST 29, 1967, WHICH REVEALED THAT
"ORGANIZED CRIME TAKES OVER $350 MILLION A YEAR FROM AMERICA'S POOR
THROUGH LOAN-SHARKING ALONE."  SEE 113 CONG.REC.  24460-24464. 
CONGRESSMAN MCDADE ALSO RELIED ON THE CHALLENGE OF CRIME IN A FREE
SOCIETY, A REPORT BY THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE (FEBRUARY 1967) WHICH STATED THAT LOAN
SHARKING WAS "THE SECOND LARGEST SOURCE OF REVENUE FOR ORGANIZED
CRIME," ID., AT 189, AND IS ONE WAY BY WHICH THE UNDERWORLD OBTAINS
CONTROL OF LEGITIMATE BUSINESSES.  ID., AT 190. 

THE CONGRESS ALSO KNEW ABOUT NEW YORK'S REPORT, AN INVESTIGATION OF
THE LOAN SHARK RACKET (1965).  SEE 114 CONG.REC.  1428-1431.  THAT
REPORT SHOWS THE LOAN SHARK RACKET IS CONTROLLED BY ORGANIZED CRIMINAL
SYNDICATES, EITHER DIRECTLY OR IN PARTNERSHIP WITH INDEPENDENT
OPERATORS; THAT IN MOST INSTANCES THE RACKET IS ORGANIZED INTO THREE
ECHELONS, WITH THE TOP UNDERWORLD "BOSSES" PROVIDING THE MONEY TO THEIR
PRINCIPAL "LIEUTENANTS," WHO IN TURN DISTRIBUTE THE MONEY TO THE
"OPERATORS" WHO MAKE THE ACTUAL INDIVIDUAL LOANS; THAT LOAN SHARKS
SERVE AS A SOURCE OF FUNDS TO BOOKMAKERS, NARCOTICS DEALERS, AND OTHER
RACKETEERS; THAT VICTIMS OF THE RACKET INCLUDE ALL CLASSES, RICH AND
POOR, BUSINESSMEN AND LABORERS; THAT THE VICTIMS ARE OFTEN COERCED INTO
THE COMMISSION OF CRIMINAL ACTS IN ORDER TO REPAY THEIR LOANS; THAT
THROUGH LOAN SHARKING THE ORGANIZED UNDERWORLD HAS OBTAINED CONTROL OF
LEGITIMATE BUSINESSES, INCLUDING SECURITIES BROKERAGES AND BANKS WHICH
ARE THEN EXPLOITED; AND THAT "(EVEN WHERE EXTORTIONATE CREDIT
TRANSACTIONS ARE PURELY INTRASTATE IN CHARACTER, THEY NEVERTHELESS
DIRECTLY AFFECT INTERSTATE AND FOREIGN COMMERCE."  /5/ 

SHORTLY BEFORE THE CONFERENCE BILL WAS ADOPTED BY CONGRESS A SENATE
COMMITTEE HAD HELD HEARINGS ON LOAN SHARKING AND THAT TESTIMONY WAS
MADE AVAILABLE TO MEMBERS OF THE HOUSE.  SEE 114 CONG.REC.  14390. 

THE ESSENCE OF ALL THESE REPORTS AND HEARINGS WAS SUMMARIZED AND
EMBODIED IN FORMAL CONGRESSIONAL FINDINGS.  THEY SUPPLIED CONGRESS WITH
THE KNOWLEDGE THAT THE LOAN SHARK RACKET PROVIDES ORGANIZED CRIME WITH
ITS SECOND MOST LUCRATIVE SOURCE OF REVENUE, EXACTS MILLIONS FROM THE
POCKETS OF PEOPLE, COERCES ITS VICTIMS INTO THE COMMISSION OF CRIMES
AGAINST PROPERTY, AND CAUSES THE TAKEOVER BY RACKETEERS OF LEGITIMATE
BUSINESSES.  SEE GENERALLY 114 CONG.REC.  14391, 14392, 14395, 14396. 

WE HAVE MENTIONED IN DETAIL THE ECONOMIC, FINANCIAL AND SOCIAL
SETTING OF THE PROBLEM AS REVEALED TO CONGRESS.  WE DO SO NOT TO INFER
THAT CONGRESS NEED MAKE PARTICULARIZED FINDINGS IN ORDER TO LEGISLATE. 
WE RELATE THE HISTORY OF THE ACT IN DETAIL TO ANSWER THE IMPASSIONED
PLEA OF PETITIONER THAT ALL THAT IS INVOLVED IN LOAN SHARKING IS A
TRADITIONALLY LOCAL ACTIVITY.  IT APPEARS, INSTEAD, THAT LOAN SHARKING
IN ITS NATIONAL SETTING IS ONE WAY ORGANIZED INTERSTATE CRIME HOLDS ITS
GUNS TO THE HEADS OF THE POOR AND THE RICH ALIKE AND SYPHONS FUNDS FROM
NUMEROUS LOCALITIES TO FINANCE ITS NATIONAL OPERATIONS. 

              AFFIRMED. 

/1/  SECTION 201(A) OF TITLE II CONTAINS THE FOLLOWING FINDINGS BY
CONGRESS: 

"(1) ORGANIZED CRIME IS INTERSTATE AND INTERNATIONAL IN CHARACTER. 
ITS ACTIVITIES INVOLVE MANY BILLIONS OF DOLLARS EACH YEAR.  IT IS
DIRECTLY RESPONSIBLE FOR MURDERS, WILLFUL INJURIES TO PERSON AND
PROPERTY, CORRUPTION OF OFFICIALS, AND TERRORIZATION OF COUNTLESS
CITIZENS.  A SUBSTANTIAL PART OF THE INCOME OF ORGANIZED CRIME IS
GENERATED BY EXTORTIONATE CREDIT TRANSACTIONS. 

"(2) EXTORTIONATE CREDIT TRANSACTIONS ARE CHARACTERIZED BY THE USE,
OR THE EXPRESS OR IMPLICIT THREAT OF THE USE, OF VIOLENCE OR OTHER
CRIMINAL MEANS TO CAUSE HARM TO PERSON, REPUTATION, OR PROPERTY AS A
MEANS OF ENFORCING REPAYMENT.  AMONG THE FACTORS WHICH HAVE RENDERED
PAST EFFORTS AT PROSECUTION ALMOST WHOLLY INEFFECTIVE HAS BEEN THE
EXISTENCE OF EXCLUSIONARY RULES OF EVIDENCE STRICTER THAN NECESSARY FOR
THE PROTECTION OF CONSTITUTIONAL RIGHTS. 

"(3) EXTORTIONATE CREDIT TRANSACTIONS ARE CARRIED ON TO A
SUBSTANTIAL EXTENT IN INTERSTATE AND FOREIGN COMMERCE AND THROUGH THE
MEANS AND INSTRUMENTALITIES OF SUCH COMMERCE.  EVEN WHERE EXTORTIONATE
CREDIT TRANSACTIONS ARE PURELY INTRASTATE IN CHARACTER, THEY
NEVERTHELESS DIRECTLY AFFECT INTERSTATE AND FOREIGN COMMERCE." 

/2/  SECTION 891 OF 18 U.S.C. (1964 ED., SUPP. V) PROVIDES IN PART: 

"(6) AN EXTORTIONATE EXTENSION OF CREDIT IS ANY EXTENSION OF CREDIT
WITH RESPECT TO WHICH IT IS THE UNDERSTANDING OF THE CREDITOR AND THE
DEBTOR AT THE TIME IT IS MADE THAT DELAY IN MAKING REPAYMENT OR FAILURE
TO MAKE REPAYMENT COULD RESULT IN THE USE OF VIOLENCE OR OTHER CRIMINAL
MEANS TO CAUSE HARM TO THE PERSON, REPUTATION, OR PROPERTY OF ANY
PERSON. 

"(7) AN EXTORTIONATE MEANS IS ANY MEANS WHICH INVOLVES THE USE, OR
AN EXPRESS OR IMPLICIT THREAT OF USE, OF VIOLENCE OR OTHER CRIMINAL
MEANS TO CAUSE HARM TO THE PERSON, REPUTATION, OR PROPERTY OF ANY
PERSON." 

/3/  THAT DECISION HAS BEEN FOLLOWED:  BECKMAN V. MALL, 317 U.S.
597; BENDER V. WICKARD, 319 U.S. 731; UNITED STATES V. HALEY, 358 U.S.
644; UNITED STATES V. OHIO, 385 U.S. 9. 

/4/  SEE N. 2, SUPRA. 

/5/  SEE N. 1, SUPRA. 

MR. JUSTICE STEWART, DISSENTING. 

CONGRESS SURELY HAS POWER UNDER THE COMMERCE CLAUSE TO ENACT
CRIMINAL LAWS TO PROTECT THE INSTRUMENTALITIES OF INTERSTATE COMMERCE,
TO PROHIBIT THE MISUSE OF THE CHANNELS OR FACILITIES OF INTERSTATE
COMMERCE, AND TO PROHIBIT OR REGULATE THOSE INTRASTATE ACTIVITIES THAT
HAVE A DEMONSTRABLY SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE.  BUT
UNDER THE STATUTE BEFORE US A MAN CAN BE CONVICTED WITHOUT ANY PROOF OF
INTERSTATE MOVEMENT, OF THE USE OF THE FACILITIES OF INTERSTATE
COMMERCE, OR OF FACTS SHOWING THAT HIS CONDUCT AFFECTED INTERSTATE
COMMERCE.  I THINK THE FRAMERS OF THE CONSTITUTION NEVER INTENDED THAT
THE NATIONAL GOVERNMENT MIGHT DEFINE AS A CRIME AND PROSECUTE SUCH
WHOLLY LOCAL ACTIVITY THROUGH THE ENACTMENT OF FEDERAL CRIMINAL LAWS. 

IN ORDER TO SUSTAIN THIS LAW WE WOULD, IN MY VIEW, HAVE TO BE ABLE
AT THE LEAST TO SAY THAT CONGRESS COULD RATIONALLY HAVE CONCLUDED THAT
LOAN SHARKING IS AN ACTIVITY WITH INTERSTATE ATTRIBUTES THAT
DISTINGUISH IT IN SOME SUBSTANTIAL RESPECT FROM OTHER LOCAL CRIME.  BUT
IT IS NOT ENOUGH TO SAY THAT LOAN SHARKING HAS INTERSTATE SETTING.  AND
THE CIRCUMSTANCE THAT LOAN SHARKING HAS AN ADVERSE IMPACT ON INTERSTATE
BUSINESS IS NOT A DISTINGUISHING ATTRIBUTE, FOR INTERSTATE BUSINESS
SUFFERS FROM ALMOST ALL CRIMINAL ACTIVITY, BE IT SHOPLIFTING OR
VIOLENCE IN THE STREETS. 

BECAUSE I AM UNABLE TO DISCERN ANY RATIONAL DISTINCTION BETWEEN LOAN
SHARKING AND OTHER LOCAL CRIME, I CANNOT ESCAPE THE CONCLUSION THAT
THIS STATUTE WAS BEYOND THE POWER OF CONGRESS TO ENACT.  THE DEFINITION
AND PROSECUTION OF LOCAL, INTRASTATE CRIME ARE RESERVED TO THE STATES
UNDER THE NINTH AND TENTH AMENDMENTS. 

ALBERT J. KRIEGER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS JOEL M. FINKELSTEIN. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON, BEATRICE
ROSENBERG, AND MARSHALL TAMOR GOLDING. 
..END :


















UNITED STATES V. SOUTHERN UTE INDIANS, 402 U.S. 159 


       UNITED STATES V. SOUTHERN UTE TRIBE OR BAND OF INDIANS

        CERTIORARI TO THE UNITED STATES COURT OF CLAIMS

        NO. 515.  ARGUED MARCH 1, 1971-- DECIDED APRIL 26, 1971 


RESPONDENT'S CLAIMS FOR COMPENSATION AND ACCOUNTING ARE BARRED BY RES
JUDICATA SINCE THEY RELATE TO LAND "FORMERLY OWNED OR CLAIMED BY (THE
CONFEDERATED BANDS OF UTES) IN WESTERN COLORADO, CEDED TO (THE UNITED
STATES) BY THE ACT OF JUNE 14, 1880" AND THUS WERE SUBJECT TO A FINAL
SETTLEMENT REDUCED TO A CONSENT JUDGMENT, TO WHICH RESPONDENT WAS A
PARTY, MADE IN 1950.  PP. 161-174. 

191 CT.CL. 1, 423 F.2D 346, REVERSED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, HARLAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 174. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN 1951 THE SOUTHERN UTE TRIBE OR BAND OF INDIANS, A PART OF THE
CONFEDERATED BANDS OF UTES, BROUGHT THIS CLAIM BEFORE THE INDIAN CLAIMS
COMMISSION.  /1/  THE CLAIM ASSERTED THAT THE UNITED STATES HAD
VIOLATED ITS FIDUCIARY DUTY TO RESPONDENT BY (1) DISPOSING OF 220,000
ACRES OF LAND AS "FREE HOMESTEADS" ALTHOUGH OBLIGATED BY 21 STAT. 203
204 (1880) AND 28 STAT. 678 (1895) TO SELL THE ACREAGE FOR THE
RESPONCENT'S BENEFIT; AND (2) BY FAILING TO ACCOUNT FOR THE PROCEEDS OF
82,000 ACRES OF LAND, WHICH PROCEEDS WERE, UNDER THE SAME ACTS, TO BE
HELD FOR THE RESPONDENT'S BENEFIT.  THE GOVERNMENT'S BASIC DEFENSE WAS
RES JUDICATA BY REASON OF COURT OF CLAIMS CONSENT JUDGMENTS ENTERED IN
1950 BETWEEN THE UNITED STATES AND THE CONFEDERATED BANDS OF UTES,
INCLUDING THE RESPONDENT.  /2/  CONFEDERATED BANDS OF UTE INDIANS V.
UNITED STATES, 117 CT.CL. 433 (1950).  THE INDIAN CLAIMS COMMISSION
REJECTED THE DEFENSE, 17 IND.CL.COMM.  28 (1966); BUT THE COURT OF
CLAIMS, IN AN UNPUBLISHED ORDER, APP. 57-58, REMANDED FOR THE TAKING OF
ADDITIONAL EVIDENCE.  ON REMAND THE COMMISSION AGAIN REJECTED THE
DEFENSE, 21 IND.CL.COMM.  268 (1969), AND THE COURT OF CLAIMS AFFIRMED,
TWO JUDGES DISSENTING.  191 CT.CL. 1, 423 F.2D 346 (1970).  WE GRANTED
CERTIORARI.  400 U.S. 915 (1970).  WE REVERSE. 

THE CONSENT JUDGMENT ENTERED IN THE COURT OF CLAIMS GAVE EFFECT TO A
SETTLEMENT AGREEMENT WHICH RECITED A STIPULATION OF THE PARTIES THAT: 

"(A) JUDGMENT . . . SHALL BE ENTERED IN THIS CAUSE AS FULL
SETTLEMENT AND PAYMENT FOR THE COMPLETE EXTINGUISHMENT OF PLAINTIFFS'
RIGHT, TITLE, INTEREST, ESTATE, CLAIMS AND DEMANDS OF WHATSOEVER NATURE
IN AND TO THE LAND AND PROPERTY IN WESTERN COLORADO CEDED BY PLAINTIFFS
TO DEFENDANT BY THE ACT OF JUNE 15, 1880 (21 STAT. 199), WHICH (A) THE
UNITED STATES SOLD FOR CASH . . . (B) DISPOSED OF AS FREE HOMESTEADS .
. . AND (C) SET ASIDE FOR PUBLIC PURPOSES (BETWEEN 1910 AND 1938) . . .
. THERE IS FILED HEREWITH AND MADE A PART OF THIS STIPULATION SCHEDULE
1, WHICH CONTAINS THE LEGAL DESCRIPTIONS OF (LANDS) . . . DISPOSED OF
BY DEFENDANT AS FREE HOMESTEADS AND THE REMAINING . . . ACRES . . . SET
ASIDE BY THE DEFENDANT FOR PUBLIC PURPOSES . . . . HOWEVER, THE
JUDGMENT TO BE ENTERED IN THIS CASE IS RES JUDICATA, NOT ONLY AS TO THE
LAND DESCRIBED IN SCHEDULE 1, BUT . . . ALSO AS TO ANY LAND FORMERLY
OWNED OR CLAIMED BY THE PLAINTIFFS IN WESTERN COLORADO, CEDED TO
DEFENDANT BY THE ACT OF JUNE 15, 1880 . . . ."  117 CT.CL.,AT 436-437. 
THE LANDS INVOLVED IN THE PRESENT SUIT WERE NOT INCLUDED IN SCHEDULE 1;
RATHER, THE GOVERNMENT RELIES UPON THE CLAUSE THAT THE CONSENT JUDGMENT
WAS "RES JUDICATA . . . ALSO AS TO ANY LAND . . . CEDED TO DEFENDANT BY
THE ACT OF JUNE 15, 1880 . . . ." 

BOTH THE INDIAN CLAIMS COMMISSION AND THE COURT OF CLAIMS REJECTED
THE GOVERNMENT'S RES JUDICATA DEFENSE ON THE GROUND THAT THE CLAIM
CONCERNING THE LANDS INVOLVED IN THIS ACTION WAS NOT COMPROMISED BY THE
1950 SETTLEMENT BECAUSE THOSE LANDS WERE NOT AMONG THE LANDS "CEDED TO
DEFENDANT BY THE ACT OF JUNE 15, 1880." 

DECISION OF THIS CASE TURNS, THEN, UPON THE PROPER INTERPRETATION OF
THE AGREEMENT, EMBODIED IN THE ACT OF 1880, BETWEEN THE UNITED STATES
AND THE UTE INDIANS AS IT RELATES TO THE SETTLEMENT AGREEMENT, REDUCED
TO JUDGMENT IN 1950, BETWEEN THE SAME PARTIES.  THE DETERMINATION OF
THAT INTERPRETATION REQUIRES A SOMEWHAT LENGTHY FACTUAL RECITATION. 

IN THE LATTER HALF OF THE 19TH CENTURY, WHAT IS NOW THE CONFEDERATED
BANDS OF UTES, COMPOSED OF THE UNCOMPAHGRE UTES, THE WHITE RIVER UTES,
AND THE SOUTHERN UTES, EXCHANGED THEIR ABORIGINAL LANDS IN NEW MEXICO,
UTAH, AND COLORADO FOR A RESERVATION OF APPROXIMATELY 15.7 MILLION
ACRES LYING WHOLLY WITHIN COLORADO.  13 STAT. 673 (1864); 15 STAT. 619
(1868).  ALTHOUGH THE ACREAGE WAS UNDIVIDED, THE WHITE RIVER UTES LIVED
IN THE NORTHERN PORTION OF THE RESERVATION, THE UNCOMPAHGRE UTES
INHABITED THE CENTRAL PART, AND THE SOUTHERN UTES OCCUPIED THE SOUTHERN
REGION.  THE RESERVATION, HOWEVER, SURVIVED LITTLE LONGER THAN A DECADE
IN THIS FORM.  IN 1874 THE UTES APPROVED THE BRUNOT CESSION OF 3.7
MILLION ACRES OF THE EAST-CENTRAL PORTION OF THE RESERVATION AFTER
VALUABLE MINERAL DEPOSITS HAD BEEN DISCOVERED THERE.  18 STAT. 36
(1874).  /3/  THE RESULT OF THE CESSION WAS ALMOST TO SEVER THE
RESERVATION, LEAVING THE SOUTHERN UTES WEDGED BETWEEN THE SOUTHERN
BOUNDARY LINE OF THE BRUNOT CESSION AND THE NEW MEXICO BORDER, AT THE
SOUTHERNMOST PART OF THE RESERVATION ON A STRIP OF LAND 15 MILES WIDE
AND 110 MILES LONG.  THIS STRIP, WHICH INCLUDES THE LANDS AT ISSUE
HERE, IS REFERRED TO BE THE PARTIES AS ROYCE AREA 617, AND THE
REMAINDER OF THE RESERVATION AFTER THE BRUNOT CESSION IS REFERRED TO AS
ROYCE AREA 616.  /4/ 

WITHIN EIGHT YEARS, ONLY THE SOUTHERN UTES REMAINED IN COLORADO:
THE WHITE RIVER UTES AND THE UNCOMPAHGRE UTES DEPARTED FOR UTAH BEFORE
1882 AS A CONSEQUENCE OF THE MASSACRE IN 1879 OF INDIAN AGENT MEEKER
AND OTHERS AT WHITE RIVER STATION.  THE PUBLIC OUTCRY OVER THIS
INCIDENT LED TO NEGOTIATIONS WITH THE CONFEDERATED BANDS WHICH PRODUCED
THE ACT OF 1880. 

THE CENTRAL FEATURE OF THE ACT OF 1880 WAS THE TERMINATION OF TRIBAL
OWNERSHIP IN THE RESERVATION LANDS, AND THE LIMITATION OF INDIAN
OWNERSHIP TO SUCH LANDS AS MIGHT BE ALLOCATED IN SEVERALTY TO
INDIVIDUAL INDIANS.  THE PURPOSES OF THAT PROVISION WERE TO DESTROY THE
TRIBAL STRUCTURE AND TO CHANGE THE NOMADIC WAYS OF THE UTES BY FORCIBLY
CONVERTING THEM FROM A PASTORAL TO AN AGRICULTURAL PEOPLE.  SEE 10
CONG.REC.  2059, 2066 (1880).  THE ACT RECITED THAT IT WAS ENACTED TO
ACCEPT "THE AGREEMENT SUBMITTED BY THE CONFEDERATED BANDS OF UTE
INDIANS IN COLORADO, FOR THE SALE OF THEIR RESERVATION IN SAID STATE .
. . ."  21 STAT. 199 (1880).  THUS, IT WAS PROVIDED THAT THE
CONFEDERATED BANDS "CEDE TO THE UNITED STATES ALL THE TERRITORY OF THE
PRESENT UTE RESERVATION IN COLORADO, EXCEPT AS HEREINAFTER PROVIDED FOR
THEIR SETTLEMENT."  21 STAT. 200 (1880).  THE SETTLEMENT PROVISIONS
STIPULATED THAT THE WHITE RIVER UTES WOULD LEAVE COLORADO "AND SETTLE
UPON AGRICULTURAL LANDS ON THE UINTAH RESERVATION IN UTAH," IBID., AND
THAT "(THE UNCOMPAHGRE UTES AGREEE TO REMOVE TO AND SETTLE UPON
AGRICULTURAL LANDS ON GRAND RIVER, NEAR THE MOUTH OF THE GUNNISON
RIVER, IN COLORADO," IBID., OR IF INSUFFICIENT AGRICULTURAL LAND WAS
FOUND THERE, GO TO UTAH (WHICH THEY SOON DID).  THE SOUTHERN UTES WERE
TO "REMOVE TO AND SETTLE UPON THE UNOCCUPIED AGRICULTURAL LANDS ON THE
LA PLATA RIVER, IN COLORADO; AND IF THERE SHOULD NOT BE A SUFFICIENCY
OF SUCH LANDS ON THE LA PLATA RIVER AND IN ITS VICINITY IN COLORADO,
THEN UPON SUCH OTHER UNOCCUPIED AGRICULTURAL LANDS AS MAY BE FOUND ON
THE LA PLATA RIVER OR IN ITS VICINITY IN NEW MEXICO."  IBID.  FINALLY,
IT WAS PROVIDED THAT "ALL THE LANDS NOT SO ALLOTTED, THE TITLE TO WHICH
IS, BY THE SAID AGREEMENT OF THE CONFEDERATED BANDS OF THE UTE INDIANS,
AND THIS ACCEPTANCE BY THE UNITED STATES, RELEASED AND CONVEYED TO THE
UNITED STATES, SHALL BE HELD AND DEEMED TO BE PUBLIC LANDS OF THE
UNITED STATES AND SUBJECT TO DISPOSAL," BUT ONLY FOR THE FINANCIAL
BENEFIT OF THE UTES.  21 STAT. 203-204 (1880). 

THE PLAIN WORDING OF THE ACT CEDES TO THE UNITED STATES ALL OF THE
NONALLOTTED ACREAGE OF THE RESERVATION, INCLUDING THAT IN THE 15-MILE
STRIP (ROYCE AREA 617) OCCUPIED BY THE SOUTHERN UTES.  THE COURT OF
CLAIMS' OPINION ACKNOWLEDGES THIS, STATING THAT: 

     "THE MOST SIGNIFICANT ASPECTS TO BE GLEANED FROM THIS (1880)

  ACT . . . IS THAT THE CONFEDERATED BANDS (SOUTHERN UTES INCLUDED)

  SEEMED TO CEDE THEIR ENTIRE COLORADO RESERVATION-- ROYCE AREA 616

 AND 617-- AND MOREOVER PROMISED TO ACCEPT ALLOTMENTS IN SEVERALTY

  IN VARIOUS SECTORS WITHIN AND BEYOND RESERVATION BOUNDARIES.  AS

  SOLE CONSIDERATION FOR THESE PROMISES, THE BANDS WERE TO RECEIVE

  SHARES IN THE PROCEEDS OF UNALLOTTED LAND SALES REMAINING AFTER

  CERTAIN GOVERNMENT REIMBURSEMENTS.  THE SOUTHERN UTES WERE

  APPORTIONED A ONE-THIRD SHARE AND LIKE THEIR CONFEDERATES

  UNDERSTOOD THAT SUCH MONIES WOULD BE HELD BY DEFENDANT IN TRUST

  FOR THEIR BENEFIT."  191 CT.CL.,AT 10, 423 F.2D, AT 350 (1970). 

THUS, IF INQUIRY WERE TO END WITH THE WORDING OF THE 1880 ACT, THE
CONSENT JUDGMENT BARRED RESPONDENT'S CLAIM. 

THE COMMISSION AND THE COURT OF CLAIMS DID NOT, HOWEVER, END THEIR
INQUIRY WITH THE WORDING OF THE ACT OF 1880.  BOTH OF THOSE TRIBUNALS
CONSIDERED THE CONDUCT OF THE UNITED STATES IN RELATION TO RESPONDENT
TRIBE IN THE YEARS SUBSEQUENT TO PASSAGE OF THE ACT OF 1880.  EVEN SO,
THE BASIS OF THEIR REJECTION OF THE RES JUDICATA DEFENSE DOES NOT
EMERGE FROM THEIR OPINIONS WITH COMPLETE CLARITY.  THE COURT OF CLAIMS
READ THE COMMISSION'S FIRST OPINION, 17 IND.CL.COMM.  28 (1966), AS
HOLDING THAT THE SOUTHERN UTES EXPRESSLY WITHHELD THE SOUTHERN STRIP
FROM THE LANDS CEDED BY THE 1880 ACT:  "THE COMMISSION FOUND THAT THE
ACT OF 1880 'RESERVED' ROYCE AREA 617 FOR THE SOUTHERN UTES."  191
CT.CL.,AT 10, 423 F.2D, AT 350.  SOME LANGUAGE AT THAT POINT OF THE
OPINION SUGGESTED THAT THE COURT OF CLAIMS WAS IN AGREEMENT WITH THAT
VIEW-- "THE FOLLOWING SEQUENCE OF EVENTS . . . SUPPORT THE CONCLUSION
THAT PLAINTIFFS AT ANY RATE DID NOT CEDE THEIR RESERVATION (ROYCE AREA
617) UNDER THE AGREEMENT OF 1880."  IBID.  HOWEVER, THE OPINION LATER
TURNS THE DECISION ON A DIFFERENT THEORY: 

"THE MORE TENABLE THEORY, IN OUR ESTIMATION, IS THAT CONGRESS

  RECOGNIZED THAT BY ITS PROTRACTED ACQUIESCENCE IN THE SOUTHERN

  UTE OCCUPATION, GOVERNMENT RIGHTS TO THE LAND HAD SOMEHOW LAPSED,

  OR THE AGREEMENT NOT BEING EXECUTED FOR SO LONG A TIME, WAS

  RESCINDED AND DEAD.  IT MAY BE THAT THE OBLIGATION TO DEAL JUSTLY

  AND HONORABLY WITH THE INDIAN WARDS DID NOT ALLOW INSISTENCE ON

  FULL IMPLEMENTATION OF THE APPARENT TERMS OF THE 1880 AGREEMENT. 

  ON THE OTHER HAND, THE SOUTHERN UTES OBVIOUSLY DID NOT SEE

  THEMSELVES AS MERE SQUATTERS.  THE CONGRESS THEREFORE DECIDED

 THAT IF THE LAND WAS GOING TO BE ACQUIRED FREE AND CLEAR NEW

  CONSIDERATION WAS NECESSARY.  HENCE WE FIND SECTION 5 OF THE 1895

  AGREEMENT TO BE AN EXPLICIT WAIVER OF THE GOVERNMENT'S RIGHTS

  CREATED IN THE 1880 AGREEMENT, WHATEVER THEY WERE.  IT FOLLOWS

  THEN THAT THE SOUTHERN UTE LANDS IN CONTROVERSY WERE CEDED IN

  1895 NOT 1880."  ID., AT 19-20, 423 F.2D, AT 356. 

THIS REASONING IMPLIES THAT THE HOLDING THAT THE LANDS IN SUIT WERE
NOT CEDED IN 1880 RESTS UPON APPLICATION OF THE DOCTRINES OF ESTOPPEL,
OR WAIVER, OR A COMPOUND OF THOSE DOCTRINES.  WE DISAGREE THAT THE
HISTORY RELIED ON SUPPORTS ANY OF THOSE BASES FOR DECISION, EVEN
ASSUMING (AND WE HAVE SERIOUS DOUBTS) THAT THE PLAIN WORDS OF THE ACT
OF 1880 CAN THUS BE VARIED TO EXCEPT THE LANDS IN SUIT FROM THE PHRASE
"ANY LAND . . . CEDED" IN THE CONSENT JUDGMENT.  WE TURN, THEN,
SERIATIM TO THE EVENTS RELIED UPON BELOW. 

EVEN BEFORE 1880 THE SOUTHERN UTES HAD EXPERIENCED HARSHIP IN LIVING
ON THE SOUTHERN STRIP.  ESSENTIALLY, THEY WERE A PASTORAL PEOPLE AND
THE STRIP WAS SO NARROW THAT IT WAS DIFFICULT TO KEEP THEIR ANIMALS
WITHIN IT.  IN ADDITION, THE WHITE POPULATION TO THE NORTH AND SOUTH OF
THE STRIP WAS INCREASING AND THE RESULTING LINES OF COMMERCE CUT ACROSS
THE STRIP. 

     "THE INDIAN BUREAU, REALIZING THAT THIS STRIP, BY REASON OF
ITS

  NARROWNESS AND OF ITS REMOTENESS FROM THE OTHER PORTION OF THE

  RESERVATION, WAS ENTIRELY UNSUITED TO THE USE OF THE INDIANS,

SUGGESTED THAT NEGOTIATIONS BE ENTERED INTO WITH THEM FOR THE

  CESSION OF THAT STRIP.  IN ACCORDANCE WITH THIS, IN 1878,

  CONGRESS PASSED AN ACT AUTHORIZING SUCH NEGOTIATIONS (U.S. STAT.

  L., VOL. 20, P. 48), AND UNDER THIS AUTHORITY A COMMISSION . . .

  WAS APPOINTED, AND DURING THE SAME YEAR THEY NEGOTIATED AN

  AGREEMENT WITH THE INDIANS WHEREBY THEY AGREED TO EXCHANGE THIS

  STRIP FOR ANOTHER RESERVATION."  S. REP. NO. 279, 53D CONG., 2D

  SESS., 1 (1894). 

BUT BEFORE THE BILL WAS ACTED UPON BY CONGRESS, THE MEEKER MASSACRE
OCCURRED.  /5/  THE OUTCRY FOLLOWING THAT INCIDENT CAUSED CONGRESS TO
ADOPT THE SOLUTION IN THE ACT OF 1880 AFFECTING ALL OF THE UTE TRIBES. 
CONTRARY TO THE APPARENT VIEW OF THE COMMISSION AND COURT OF CLAIMS,
THIS SEGMENT OF HISTORY DOES NOT SHOW AN INTENTION TO TREAT THE
SOUTHERN UTES DIFFERENTLY FROM THE OTHER UTES; RATHER, IT DEMONSTRATES
A CONGRESSIONAL DECISION TO TREAT THE SOUTHERN UTES AS THE WHITE RIVER
AND UNCOMPAHGRE UTES WERE BEING TREATED, SAVE THAT THE WHITE RIVER UTES
WERE BEING COMPLETELY BANISHED FROM COLORADO. 

THE ACT OF 1880 PROVIDED THAT "A COMMISSION SHALL BE SENT TO
SUPERINTEND THE REMOVAL AND SETTLEMENT OF THE UTES, AND TO SEE THAT
THEY ARE WELL PROVIDED WITH AGRICULTURAL AND PASTORAL LANDS SUFFICIENT
FOR THEIR FUTURE SUPPORT . . . ."  21 STAT. 201 (1880).  THE COMMISSION
VISITED THE SOUTHERN UTES TO CARRY OUT THAT MANDATE AND IN 1881 ITS
CHAIRMAN REPORTED TO CONGRESS: 

"DURING MY STAY ON THE RESERVATION I TOOK OCCASION . . . TO TALK TO
THE LEADING MEN . . . ON THE SUBJECT OF THEIR LOCATION IN SEVERALTY. 
IN THESE CONVERSATIONS I CALLED THEIR ATTENTION TO THE FACT THAT THE
WORK THE SURVEYORS WERE DOING WAS THE PRELIMINARY STEP TO SUCH LOCATION
(IN SEVERALTY) . . . . I DID NOT FIND ONE WHO DESIRED A HOUSE, OR WOULD
AGREE TO DWELL IN ONE IF BUILT FOR HIM ON HIS OWN LAND.  IT WILL TAKE
TIME AND CAREFUL MANAGEMENT TO INDUCE THESE INDIANS TO ABANDON THEIR
PRESENT (WAY OF LIVING) AND ADOPT THE NEW MODE OF LIFE CONTEMPLATED BY
THE AGREEMENT. 

      "IN THE MEAN TIME, AND WHILE THE CHANGE IS GOING ON, THEY
MUST

  BE PROTECTED FROM ANNOYANCE . . . . TO PREVENT INTRUSION AND

  GUARANTEE PROPER ORDER AND PROTECTION, I CAN SEE NO OTHER WAY

  THAN TO SO MODIFY THE (1880) AGREEMENT . . . AS TO MAINTAIN THE

  EXTERIOR LINES OF THE STRIP OF LAND ONE HUNDRED MILES LONG AND

  FIFTEEN WIDE, AND PRESERVE ALL THE LAND WITHIN THESE LINES FOR AN

  INDEFINITE ERIOD AS AN INDIAN RESERVATION . . . . THEN THE LAND

  SELECTED, AND UPON WHICH THE INDIANS ARE TO BE LOCATED, CAN BE

 KEPT FREE FROM INTRUDERS." 

<H.R. EXEC. DOC. NO. 1, PT. 5, VOL. 2, 47TH CONG., 1ST SESS., 393
(1882). 

BUT CONGRESS DID NOT CREATE THE RECOMMENDED RESERVATION.  INSTEAD,
CONGRESS TOOK ACTION CONSISTENT WITH ADHERENCE TO THE PLAN OF THE ACT
OF 1880.  THERE HAD BEEN GREAT PRESSURE TO OPEN ROYCE AREAS 616 AND 617
TO HOMESTEADING AFTER THE ACT OF 1880 HAD RESULTED IN THE REMOVAL OF
THE UNCOMPAHGRE AND WHITE RIVER UTES.  THE SOUTHERN UTES WERE, HOWEVER,
STILL OCCUPYING THE SOUTHERN STRIP, ROYCE AREA 617.  THE APPARENT
RESULT WAS THE ACT OF JULY 28, 1882, 22 STAT. 178, WHICH DECLARED THAT
ALL OF THE NORTHERN PORTIONS OF THE RESERVATION FORMERLY OCCUPIED BY
THE UNCOMPAHGRE AND WHITE RIVER UTES, ROYCE AREA 616, WERE NOW PUBLIC
LANDS TO BE DISPOSED OF FOR THE BENEFIT OF THE UTES IN ACCORDANCE WITH
THE ACT OF 1880.  SECTION 2 OF THAT STATUTE PROVIDED THAT THE SECRETARY
OF THE INTERIOR "SHALL, AT THE EARLIEST PRACTICABLE DAY, ASCERTAIN AND
ESTABLISH THE LINE BETWEEN" THE TWO ROYCE AREAS.  22 STAT. 178 (1882). 
WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THAT STATUTE TO SUPPORT A
FINDING THAT IT EVIDENCED A CONGRESSIONAL CONCLUSION THAT THE SOUTHERN
STRIP HAD NOT BEEN CEDED BY THE ACT OF 1880.  ON THE CONTRARY, THE
THRUST OF THE LEGISLATIVE HISTORY IS THAT THE LINE WAS DRAWN TO ASSURE
THAT THERE WOULD BE NO INTERFERENCE WITH THE LAND IN ROYCE AREA 617
AVAILABLE FOR ALLOTMENT TO THE SOUTHERN UTES UNDER THE ACT OF 1880. 
H.R. REP. NO. 799, 53D CONG., 2D SESS., 2 (1894); S. REP. NO. 279, 53D
CONG., 2D SESS., 2, 3-4 (1894).  /6/ 

THE COURT OF CLAIMS ALSO FOUND SUPPORT FOR ITS CONCLUSION IN WHAT
WAS SAID TO A CONGRESSIONAL COMMITTEE BY A UTE SPOKESMAN FOR THE
SOUTHERN UTES AT A MEETING IN THE DISTRICT OF COLUMBIA IN 1886.  THE
SPOKESMAN STATED THAT THE DELEGATION HAD COME "TO SEE IF WE CANNOT
EXCHANGE OUR RESERVATION FOR ANOTHER . . . . THE PRESENT RESERVATION IS
NARROW AND LONG, AND WE WANT TO GO WEST AND SEE IF WE CAN'T SELL IT." 
S. REP. NO. 836, 49TH CONG., 1ST SESS., 1 (1886).  THE COURT OF CLAIMS
VIEWED THIS AS DEMONSTRATING THAT "THE SOUTHERN UTES WERE STILL IN
POSSESSION OF THEIR PART OF THEIR OLD RESERVATION UNDER CLAIM OF
RIGHT."  191 CT.CL.,AT 14, 423 F.2D, AT 353.  WE DO NOT DOUBT THAT THE
SOUTHERN UTES REGARDED THE LANDS THEY OCCUPIED AS "OUR RESERVATION,"
BUT WE FAIL TO SEE HOW THIS NULLIFIES THE CONVEYANCE OF THE STRIP MADE
BY THE ACT OF 1880.  ON THE CONTRARY, THERE IS COGENT EVIDENCE THAT THE
UNITED STATES TOTALLY REJECTED THE INDIANS' CLAIM THAT THE STRIP WAS
"OUR RESERVATION."  AFTER TWO BILLS TO EFFECTUATE THE REMOVAL OF THE
SOUTHERN UTES FAILED TO PASS, CONGRESS ENACTED 25 STAT. 133 (1888)
EMPOWERING "(THE SECRETARY OF THE INTERIOR . . . TO APPOINT A
COMMISSION . . . WITH AUTHORITY TO NEGOTIATE WITH THE BAND OF UTE
INDIANS OF SOUTHERN COLORADO FOR SUCH MODIFICATION OF THEIR TREATY AND
OTHER RIGHTS, AND SUCH EXCHANGE OF THEIR RESERVATION, AS MAY BE DEEMED
DESIRABLE BY SAID INDIANS AND THE SECRETARY OF THE INTERIOR . . . ." 
IBID.  DESPITE THE REFERENCE TO "THEIR RESERVATION," THE PREMISE OF
THIS STATUTE WAS OBVIOUSLY THAT AMELIORATION OF THE PLIGHT OF THE
SOUTHERN UTES WOULD REQUIRE "MODIFICATION OF THEIR TREATY AND OTHER
RIGHTS" AS THEY HAD BEEN FIXED IN THE ACT OF 1880.  EVEN THE COURT OF
CLAIMS THOUGHT THE ACT OF 1888 LITTLE SUPPORT FOR THE RESPONDENTS'
CONTENTION: 

"ALTHOUGH THE LANGUAGE OF THIS ACT TENDS TO FAVOR PLAINTIFFS'
POSITION IT IS BY NO MEANS CONCLUSIVE.  IT MERELY AUTHORIZED THE
ESTABLISHMENT OF A COMMISSION TO ENGAGE THE SOUTHERN UTES IN
NEGOTIATIONS FOR THE PURPOSE OF PERSUADING THEM TO DO BELATEDLY WHAT
THE UNCOMPAHGRE AND WHITE RIVER UTES HAD DONE SOME YEARS EARLIER,
NAMELY, TO VACATE THEIR RESERVATION AND MOVE ELSEWHERE.  A REASONABLE
EXPLANATION FOR THE ACT'S EXCLUSIVE TERMS IS THAT THE SOUTHERN UTES
WERE THE ONLY BAND OF THE CONFEDERATION AS TO WHOM THE 1880 AGREEMENT
WAS STILL EXECUTORY."  191 CT.CL.,AT 15, 423 F.2D, AT 353-354. 

THE COMMISSION FORMED PURSUANT TO THE ACT OF 1888 DID SUCCEED IN
NEGOTIATING AN AGREEMENT WITH THE SOUTHERN UTES, UNDER WHICH THE
SOUTHERN UTES WOULD HAVE UTAH.  THE COURT OF CLAIMS OBSERVED THAT IN
SUCH CASE "(PRESUMABLY, THEIR EVACUATED RESERVATION LANDS WOULD THEN BE
SOLD IN ACCORDANCE WITH THE ACT OF 1880 AND THE PROCEEDS WOULD BE HELD
FOR THE COLLECTIVE BENEFIT OF THE CONFEDERATED BANDS IN THE PRESCRIBED
PROPORTIONS, THAT IS, THE CONSIDERATION VISUALIZED IN THE 1880
AGREEMENT AS ACCRUING TO THE SOUTHERN UTES WOULD STILL ACCRUE."  191
CT.CL.,AT 16, 423 F.2D, AT 354.  IN OTHER WORDS, THE TREATMENT OF THE
SOUTHERN UTES WOULD BE PRECISELY THAT ACCORDED THE UNCOMPAHGRE AND
WHITE RIVER UTES WHEN THEY LEFT COLORADO.  BUT THIS EVENT ONLY SERVES
TO FURNISH STILL MORE PROOF THAT THE GOVERNMENT REMAINED FIRM IN ITS
POSITION THAT THE STRIP WAS CEDED BY THE ACT OF 1880. 

THIS IS CONFIRMED BY THE CONGRESSIONAL REACTION WHEN THE AGREEMENT
WAS SUBMITTED FOR APPROVAL-- NOTHING HAPPENED FOR SIX YEARS AND THE
AGREEMENT WAS AGAIN INTRODUCED IN 1894.  THE OPINION OF THE COURT OF
CLAIMS DEPICTS THE SITUATION: 

"CONCEDING THE 'ANOMALOUS POSITION (OF THE SOUTHERN UTES) OF HAVING
CEDED THEIR RESERVATION AND YET REMAINING ON IT', THE SENATE COMMITTEE
ON INDIAN AFFAIRS FAVORED RATIFICATION (SEN. REP. NO. 279, 53D CONG.,
2D SESS. 2-3 (1894)).  ITS HOUSE COUNTERPART, ALTHOUGH CONCURRING IN
THE VIEW THAT THE SOUTHERN UTES PRESENTED AN ANOMALOUS SITUATION, DID
NOT ASSENT TO RATIFICATION (H.R. REP. NO. 799, 53D CONG., 2D SESS. 2-3
(1894)).  IT BELIEVED THAT THE PROPOSED RESERVATION WAS TOO LARGE FOR
THE SOUTHERN UTES AND HENCE WOULD ENCOURAGE THEIR NOMADIC WAYS. 
THEREFORE, INSTEAD, THE HOUSE COMMITTEE RECOMMENDED ENACTMENT OF A
PENDING BILL WHICH WAS EVENTUALLY PASSED AS THE ACT OF FEBRUARY 20,
1895 (28 STAT. 677).  THE STATED PURPOSE OF THIS ACT WAS TO ANNUL THE
AGREEMENT OF 1888 AND ENFORCE THE TREATY OF 1880 WHICH SOUGHT TO SETTLE
THE INDIANS IN SEVERALTY."  191 CT.CL.,AT 16, 423 F.2D, AT 354.  THIS
RECITAL REFUTES, RATHER THAN SUPPORTS, THE NOTION THAT THE UNITED
STATES FOLLOWED A PATTERN OR COURSE OF CONDUCT AFTER 1880 THAT REGARDED
THE SOUTHERN UTES RATHER THAN THE UNITED STATES AS THE OWNERS OF ROYCE
AREA 617. 

FINALLY, WE CANNOT AGREE WITH THE COURT OF CLAIMS THAT SEC. 5 OF THE
ACT OF 1895 IS "AN EXPLICIT WAIVER OF THE GOVERNMENT'S RIGHTS CREATED
IN THE 1880 AGREEMENT, WHATEVER THEY WERE."  191 CT.CL.,AT 19-20, 423
F.2D, AT 356.  THE ACT OF 1895, IN ADDITION TO ANNULLING THE 1888
AGREEMENT, EXPRESSLY CONFIRMED THE ACT OF 1880 AND DIRECTED THE
SECRETARY OF THE INTERIOR TO PROCEED WITH ALLOTMENTS IN SEVERALTY TO
THE SOUTHERN UTES "IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF
(1880)."  28 STAT. 677 (1895).  IT WENT ON TO SETTLE THE GRIEVANCES OF
THOSE SOUTHERN UTES WHO WANTED THEIR OWN RESERVATION RATHER THAN
ALLOTTMENTS IN SEVERALTY BY PROVIDING THAT "THERE SHALL BE . . . SET
APART AND RESERVED ALL THAT PORTION OF THEIR PRESENT RESERVATION LYING
WEST OF" A DEFINED LINE IN THE STRIP.  ID., AT 678.  WE DO NOT SEE HOW
THE UNITED STATES COULD HAVE "SET APART AND RESERVED" A PORTION OF THE
STRIP FOR A RESERVATION UNLESS THE STRIP BELONGED TO IT.  THE REMAINDER
OF THE STRIP TO THE EAST OF THE NEW RESERVATION WAS TO BE AVAILABLE FOR
ALLOTMENTS IN SEVERALTY TO INDIVIDUAL SOUTHERN UTES AND THE LAND NOT
ALLOTTED WAS TO "BE AND BECOME A PART OF THE PUBLIC DOMAIN" TO BE SOLD
FOR THE BENEFIT OF SAID UTES.  IBID.  SECTION 5 ALLOCATED THE PROCEEDS
FROM THE SALES OF THE LAND OPENED TO PUBLIC SETTLEMENT.  WE LOOK IN
VAIN FOR ANYTHING IN THAT SECTION TO SUPPORT THE CONCLUSION OF THE
COURT OF CLAIMS THAT IT CONTAINS AN "EXPLICIT WAIVER" BY THE UNITED
STATES OF ITS RIGHTS UNDER THE ACT OF 1880 AND THAT "(IT FOLLOWS THEN
THAT THE SOUTHERN UTE LANDS IN CONTROVERSY WERE CEDED IN 1895 NOT
1880."  191 CT.CL.,AT 20, 423 F.2D, AT 356.  THE SENATE REPORT
RECOMMENDING PASSAGE OF THE ACT OF 1895 BELIES THAT CONCLUSION.  THE
REPORT REPEATS, ONCE AGAIN, THE PREVIOUSLY STATED POSITION OF THE
CONGRESS THAT "(ON MARCH 6, 1880, (THE UTES) . . . CEDED THE WHOLE OF
THEIR RESERVATION IN COLORADO TO THE UNITED STATES, EXCEPT SUCH LANDS,
IF ANY, AS MIGHT BE ALLOTTED TO THEM IN SEVERALTY."  S. REP. NO. 279,
SUPRA, AT 2.  WE DISCERN NOTHING IN SEC. 5 SAVE SOME REVISION OF THE
FORMULA FOR ALLOCATION KOF THE PROCEEDS OF THE SALES OF THE UNALLOTTED
LANDS IN THE PORTION OF THE STRIP EAST OF THE RESERVATION.  /7/  WE
FIND ABSOLUTELY NO LANGUAGE THAT THE SOUTHERN UTES MADE ANY CESSION
THEREBY, AND, INDEED, WE ARE CONVINCED THAT THE WORDING IS CONSISTENT
ONLY WITH THE FACT THAT THEY HAD NO LAND TO CEDE.  /8/  THE ACT OF 1895
SIMPLY RESOLVED THE IMPASSE OVER THE ALLOTMENTS IN SEVERALTY WHICH HAD
EXISTED FOR 15 YEARS BECAUSE OF THE SOUTHERN UTES'  RELUCTANCE TO
ACCEPT THEM.  THE UNITED STATES CREATED A NEW RESERVATION FOR THEM,
WHILE STILL PERMITTING ALLOTMENTS TO THOSE SOUTHERN UTES WILLING AND
QUALIFIED TO ENGAGE IN FARMING.  THIS PLAN WAS CLEARLY CONSTRUCTED IN
RELIANCE UPON, NOT IN DEROGATION OF, THE CESSION MADE UNDER THE ACT OF
1880. 

WE THEREFORE HOLD THAT THE CLAIM IN THIS CASE IS RES JUDICATA UNDER
THE 1950 CONSENT JUDGMENT ENFORCING THE SETTLEMENT AGREEMENT "AS TO ANY
LAND . . . CEDED TO DEFENDANT BY THE ACT OF JUNE 15, 1880."  /9/

 REVERSED. 

/1/  THE CLAIM WAS FILED PURSUANT TO THE INDIAN CLAIMS COMMISSION
ACT, 25 U.S.C. 70A.  SEE ALSO 25 U.S.C. 70K. 

/2/  THE 1950 CASES WERE BROUGHT UNDER THE JURISDICTIONAL ACT OF
1938, 52 STAT. 1209.  THE SETTLEMENT REDUCED TO CONSENT JUDGMENT
PRINCIPALLY RELIED UPON BY THE GOVERNMENT IS THAT IN CASE NO. 46640,
117 CT.CL. 433, 436 (1950).  RELATED STIPULATIONS ARE REPORTED AT 117
CT.CL.,AT 434, 438, 440.  THE AGGREGATE AMOUNT OF THE SETTLEMENTS
EXCEEDED $31 MILLION.  THE UNITED STATES ALSO UNSUCCESSFULLY ASSERTED
BELOW DEFENSES OF FAILURE TO STATE A CLAIM AND FAILURE TO JOIN ALL
NECESSARY PARTIES.  THOSE QUESTIONS ARE NOT BEFORE US. 

/3/  THE UNITED STATES ADMITS THAT THE STATED CONSIDERATION WAS NOT
PROMPTLY PAID.  BRIEF FOR PETITIONER 5.  SEE ALSO J. DUNN, MASSACRES OF
THE MOUNTAINS 583-587 (1958). 

/4/  THESE DERIVE FROM A MAP OF INDIAN LAND CESSIONS, PL. CXVI,
DRAWN BY CHARLES ROYCE IN CONNECTION WITH A PUBLISHED STUDY, INDIAN
LAND CESSIONS, 18TH ANN. REP., BUR.  OF AMER.  ETHNOLOGY, PT. 2 (1896
1897). 

/5/  WHILE APPARENTLY THE "MASSACRE" INVOLVED ONLY THE WHITE RIVER
UTES, ALL UTES WERE BLAMED.  SEE EXCHANGE OF CORRESPONDENCE DURING THE
UPRISING AMONG THE INDIAN AGENTS, SECRETARY OF THE INTERIOR, GOVERNOR
OF COLORADO, AND OTHERS PRINTED IN S. EXEC. DOC. NO. 31, 46TH CONG., 2D
SESS. (1880).  SEE ALSO J. DUNN, MASSACRES OF THE MOUNTAINS (1958), AND
U.S. ARMY, MILITARY DIVISION OF THE MISSOURI (GEN. P. SHERIDAN,
COMMANDING), RECORD OF ENGAGEMENTS WITH HOSTILE INDIANS 88-91 (1882). 

/6/  THE COURT OF CLAIMS FOUND PROOF THAT "THE INTERIOR DEPARTMENT
AT LEAST WAS ALREADY VIEWING THE SOUTHERN UTE TERRITORY AS A PERMANENT
RESERVATION NOT CEDED UNDER THE TERMS OF THE 1880 CESSION," 191
CT.CL.,AT 13 F.2D, AT 352, IN A DESCRIPTION OF THE LINE IN AN 1882
LETTER TO THE DISTRICT LAND OFFICES.  WE FIND NOTHING IN THE LETTER TO
THAT EFFECT, AND IN ANY EVENT, IT COULD HARDLY BE THE BASIS FOR
DISREGARDING THE CONGRESSIONALLY EXPRESSED DESIGN. 

/7/  SECTION 5 OF THE ACT OF 1895 PROVIDES IN PERTINENT PART: 

"THAT OUT OF THE MONEYS FIRST REALIZED FROM THE SALE OF SAID LANDS
SO OPENED UP TO PUBLIC SETTLEMENT THERE SHALL BE PAID TO SAID INDIANS
THE SUM OF FIFTY THOUSAND DOLLARS, AS FOLLOWS:  FIVE THOUSAND DOLLARS
ANNUALLY FOR TEN YEARS . . . TO BE EQUALLY DIVIDED AMONG ALL OF SAID
INDIANS PER CAPITA, IRRESPECTIVE OF AGE OR SEX; ALSO THE SUM OF TWENTY
THOUSAND DOLLARS OF SAID PROCEEDS SHALL BE PAID TO THE SECRETARY OF THE
INTERIOR, WHO SHALL INVEST THE SAME IN SHEEP AND DIVIDE THE SAID SHEEP
AMONG THE SAID INDIANS PER CAPITA EQUALLY, IRRESPECTIVE OF AGE OR SEX;
(CERTAIN ALLOTMENTS ALSO MADE TO SPECIFIC CHIEFS AND HEADMEN) . . .
THAT THE BALANCE OF THE MONEY REALIZED FROM THE SALE OF LANDS, AFTER
DEDUCTING EXPENSES OF SALE AND SURVEY, SHALL BE HELD IN THE TREASURY OF
THE UNITED STATES IN TRUST FOR THE SOLE USE AND BENEFIT OF SAID
SOUTHERN UTE INDIANS.  THAT NOTHING HEREIN PROVIDED SHALL IN ANY MANNER
BE CONSTRUED TO CHANGE OR INTERFERE WITH THE RIGHTS OF SAID INDIANS
UNDER ANY OTHER EXISTING TREATY REGARDING ANY ANNUITIES OR TRUST FUNDS
OR THE INTEREST THEREON."  28 STAT. 678 (1895). 

/8/  THE COURT OF CLAIMS ALSO SEEMS TO HAVE PLACED SOME RELIANCE
UPON THE FOLLOWING WORDS IN AN ORDER OF THE ACTING SECRETARY OF THE
INTERIOR IN 1938 WHICH RESTORED TO THE SOUTHERN UTES THAT PORTION OF
ROYCE AREA 617 YET UNDISPOSED OF:     "(PURSUANT TO THE PROVISIONS OF
THE ACT OF FEBRUARY 20, 1895 (28 STAT.L., 677), THE SOUTHERN UTE BAND
OF INDIANS IN COLORADO CEDED TO THE UNITED STATES A LARGE AREA OF THEIR
RESERVATION IN THE STATE OF COLORADO ESTABLISHED EXPRESSLY FOR THEIR
BENEFIT UNDER THE TREATY OF JUNE 15, 1880 (21 STAT.L., 199)," S. DOC.
NO. 194, 76TH CONG., 3D SESS., 659 (1941) (COMPILED BY C. KAPPLER). 

THE COURT OF CLAIMS SUGGESTED THAT THESE WORDS DEMONSTRATED THAT
"(PETITIONER'S) OFFICIALS . . . NOT ONLY CONCEDE THAT THE LANDS WERE
CEDED IN 1895, BUT THEY ALSO ENLIGHTEN US AS TO THE STATUS IT
RETROSPECTIVELY APPLIED TO THE 1880 AGREEMENT."  191 CT.CL.,AT 20, 423
F.2D, AT 356.     AS WE HAVE SAID IN THIS OPINION, WE FIND NO CREATION
OF A RESERVATION FOR THE SOUTHERN UTES IN THE ACT OF 1880, NOR CAN WE
FIND ANY WORDS OF CESSION IN THE ACT OF 1895.  IN ADDITION, RATHER THAN
ATTACHING THE SIGNIFICANCE SUGGESTED BY THE COURT OF CLAIMS, THE QUOTED
WORDS ARE MORE PROPERLY TO BE TREATED AS CARELESS DRAFTSMANSHIP:  THE
TIME OF CESSION, WHETHER 1880 OR 1895, WAS OF ABSOLUTELY NO CONSEQUENCE
TO THE ACT OF RESTORATION OF UNDISPOSED LANDS IN 1938.  FINALLY, THE
QUOTED WORDS DO NOT SUPPORT THE APPLICATION HERE OF THE PRINCIPLE THAT
COURTS SHOULD GIVE WEIGHT TO A CONSISTENT READING OF AN AMBIGUOUS
DOCUMENT BY THE AGENCY CHARGED WITH ITS ENFORCEMENT.  AS OUR OPINION
SHOWS, WE DO NOT FIND EITHER THE ACT OF 1880 OR THAT OF 1895
AMBIGUOUS.  MOREOVER, WHAT CONSISTENCY THE PARTIES HAVE SHOWN IN THE
ENFORCEMENT OF THOSE ACTS, CUTS AGAINST THE CONTENTION OF THE
RESPONDENT. 

/9/  THE COURT OF CLAIMS' UNREPORTED ORDER REMANDED THE CASE TO THE
COMMISSION "FOR THE HEARING OF ADDITIONAL EVIDENCE AND THE MAKING OF
FINDINGS OF FACT WITH RESPECT TO THE INTENTION OF THE PARTIES TO THE
STIPULATION UPON WHICH A FINAL JUDGMENT WAS ENTERED IN COURT OF CLAIMS
CASE NO. 46640 (117 CT.CL. 436) ON JULY 13, 1950."  APP. 57.  THE
COMMISSION'S SUPPLEMENTAL FINDINGS AFTER THE HEARING ON REMAND ARE
REPORTED IN 21 IND.CL.COMM.  268.  WE QUESTION THE PROPRIETY OF THE
REMAND, SEE DELAWARE INDIANS V. CHEROKEE NATION, 193 U.S. 127, 140-141
(1904); UNITED STATES V. WILLIAMS CRAMP & SONS SHIP & ENGINE BUILDING
CO., 206 U.S. 118, 128 (1907), BUT DO NOT DECIDE THE QUESTION SINCE IT
DOES NOT APPEAR THAT THE DECISION OF THE COURT OF CLAIMS TURNED ON ANY
EVIDENCE OF THE INTENTION OF THE PARTIES TO THE STIPULATION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THOUGH THE FACTS OF THIS CASE ARE COMPLEX, THEY PRESENT BUT ONE
MAJOR QUESTION, WHETHER THE LANDS IN QUESTION WERE "CEDED TO DEFENDANT
BY THE ACT OF JUNE 15, 1880," AND INCLUDED IN A CONSENT JUDGMENT
ENTERED BY THE COURT OF CLAIMS IN 1950. 

MORE PRECISELY, WHAT WAS THE STATUS OF THESE LANDS (ROYCE AREA 617)
BETWEEN 1880 AND 1895?  WERE THEY CEDED IN 1880, YET NOT RELEASED BY
THE INDIANS UNTIL 1895?  HOW CAN IT BE SAID THAT ROYCE AREA 617 WAS
CEDED IN 1880 YET RETAINED UNTIL 1895, SINCE, AS THE COURT OF CLAIMS
STATED, "THE SOUTHERN UTES WERE ALLOWED TO REMAIN ON THEIR SURVEYED
RESERVATION FOR 15 YEARS AFTER THE PURPORTED CESSION, AND THE RIGHT TO
REMOVE THEM WITHOUT THEIR FURTHER CONSENT WAS NOT ASSERTED OR
EXERCISED."  191 CT.CL. 1, 19, 423 F.2D 346, 356. 

TWICE THE FACTS HAVE BEEN CONSIDERED, ONCE BY THE INDIAN CLAIMS
COMMISSION AND ONCE BY THE COURT OF CLAIMS.  AND BOTH HAVE RESOLVED THE
QUESTION PRESENTED IN FAVOR OF THE RESPONDENT, SOUTHERN UTES.  THAT
RESULT BELOW IS AMPLY SUPPORTED BY THE RECORD. 

AS OF 1880, THE CONFEDERATED BANDS OF UTE INDIANS OCCUPIED A
RESERVATION OF 12,000,000 ACRES IN WESTERN COLORADO.  THE WHITE RIVER
UTES AND THE UNCOMPAHGRE UTES OCCUPIED THE NORTHERN PORTION (ROYCE AREA
616), AND THE SOUTHERN UTES OCCUPIED AN ALMOST SEPARTED SOURTHERN
THE UNITED STATES.  IT PROVIDED THAT THE CHIEFS WOULD PERSUADE THEIR
PEOPLE 

"TO CEDE TO THE UNITED STATES ALL THE TERRITORY OF THE PRESENT UTE
RESERVATION IN COLORADO, EXCEPT AS HEREINAFTER PROVIDED FOR THEIR
SETTLEMENT. 

    "THE SOUTHERN UTES AGREE TO REMOVE TO AND SETTLE UPON THE

  UNOCCUPIED AGRICULTURAL LANDS ON THE LA PLATA RIVER, IN COLORADO;

  AND IF THERE SHOULD NOT BE A SUFFICIENCY OF SUCH LANDS ON THE LA

  PLATA RIVER AND IN ITS VICINITY IN COLORADO, THEN UPON SUCH OTHER

  UNOCCUPIED ARGICULTURAL LANDS AS MAY BE FOUND ON THE LA PLATA

  RIVER OR IN ITS VICINITY IN NEW MEXICO."  ACT OF JUNE 15, 1880,

  21 STAT. 200. 

THE CESSION OF THE TERRITORY WAS ON THE EXPRESS CONDITION: 

"THAT THE GOVERNMENT OF THE UNITED STATES CAUSE THE LANDS SO SET
APART TO BE PROPERLY SURVEYED AND TO BE DIVIDED AMONG THE SAID INDIANS
IN SEVERALTY . . . ."  ID., AT 200-201.  THE SECRETARY OF THE INTERIOR
WAS AUTHORIZED TO HAVE THE LAND SURVEYED FOR ALLOTMENT.  COMMISSIONERS
WERE TO MAKE THE ALLOTMENTS, 

"AND ALL THE LANDS NOT SO ALLOTED, THE TITLE TO WHICH IS, BY THE
SAID AGREEMENT OF THE CONFEDERATED BANDS OF THE UTE INDIANS, AND THIS
ACCEPTANCE BY THE UNITED STATES, RELEASED AND CONVEYED TO THE UNITED
STATES, SHALL BE HELD AND DEEMED TO BE PUBLIC LANDS OF THE UNITED
STATES . . . ."  ID., AT 203.  THE UTE COMMISSION WAS FORMED.  IN 1881
IT REPORTED TO CONGRESS.  THE UNCOMPAHGRE AND WHITE RIVER UTES HAD BEEN
MOVED, BUT THE SOUTHERN UTES WERE STILL ON THEIR RESERVATION.  THE
CHAIRMAN OF THE COMMISSION HAD DECIDED THAT IT WOULD BE UNWISE TO MOVE
THEM.  /1/ THE ALLOTMENTS, A CONDITION OF THE CESSION, WERE NOT MADE. 
IN 1882, CONGRESS DECLARED ROYCE AREA 616 TO BE PUBLIC LAND (22 STAT.
178).  IT PROVIDED THAT A LINE BE ESTABLISHED BETWEEN ROYCE AREA 616
AND ROYCE AREA 617.  SEC. 2.  THE SECRETARY OF THE INTERIOR ORDERED THE
LINE TO BE DRAWN "(COMMENCING AT THE SOUTHWEST CORNER OF THE UTE CEDED
LANDS; THENCE EXTENDING THE SOUTH BOUNDARY OF THE UTE CEDED LANDS TO
THE WESTERN BOUNDARY OF THE STATE OF COLORADO."  /2/ 

AS OF THIS TIME IF APPEARS THAT NEITHER THE SOUTHERN UTES NOR
OFFICIALS OF THE UNITED STATES THOUGHT THAT ROYCE AREA 617 HAD BEEN
CEDED BY THE ACT OF 1880.  THE SOUTHERN UTES STILL CONSIDERED IT THEIR
RESERVATION /3/  AND THE COMMISSIONER OF INDIAN AFFAIRS APPARENTLY FELT
LIKEWISE /4/ -- ALL OF WHICH IS INCONSISTENT WITH THE THEORY THAT THERE
HAD BEEN A CESSION OF IT IN 1880. 

IN 1888, CONGRESS AUTHORIZED THE SECRETARY OF THE INTERIOR TO
APPOINT A COMMISSION TO NEGOTIATE WITH THE SOUTHERN UTES.  THEY AGREED
TO SETTLE IN UTAH, BUT CONGRESS WOULD NOT APPROVE THE AGREEMENT. 
CONGRESS THEN PASSED THE ACT OF 1895, 28 STAT. 677: 

     "THAT WITHIN SIX MONTHS AFTER THE PASSAGE OF THIS ACT THE

  SECRETARY OF THE INTERIOR SHALL CAUSE ALLOTMENT OF LAND, IN

  SEVERALTY, TO BE MADE TO SUCH OF THE SOUTHERN UTE INDIANS IN

  COLORADO AS MAY ELECT AND BE CONSIDERED BY HIM QUALIFIED TO TAKE

THE SAME OUT OF THE AGRICULTURAL LANDS EMBRACED IN THEIR PRESENT

  RESERVATION IN COLORADO, SUCH ALLOTMENTS TO BE MADE IN ACCORDANCE

  WITH THE PROVISIONS OF THE ACT OF (1880) . . . AND THE AMENDMENTS

  THERETO . . . ."  SEC. 2. 

  "THAT AT THE EXPIRATION OF SIX MONTHS FROM THE PASSAGE OF THIS

  ACT THE PRESIDENT . . . SHALL ISSUE HIS PROCLAMATION DECLARING

  THE LANDS EMBRACED WITHIN THE PRESENT RESERVATION OF SAID INDIANS

  EXCEPT SUCH PORTIONS AS MAY HAVE BEEN ALLOTTED OR RESERVED UNDER

  THE PROVISIONS OF THE PRECEDING SECTIONS OF THIS ACT, OPEN TO

  OCCUPANCY AND SETTLEMENT."  SEC. 4, 28 STAT. 678. 

THE MONEY REALIZED FROM THE SALE OF THE LANDS SET ASIDE WAS TO BE HELD
FOR THE SOLE BENEFIT OF THE SOUTHERN UTE INDIANS.  SECTION 6 DECLARED
THAT THE PROVISIONS OF THE ACT WERE NOT TO TAKE EFFECT UNTIL ACCEPTED
BY A MAJORITY OF THE MALE ADULT INDIANS.  A MAJORITY DID ACCEPT. 

SOME OF THE SOUTHERN UTES TOOK ALLOTMENTS IN SEVERALTY.  THE
WEEMINUCHE UTES, NOW THE UTE MOUNTAIN UTES, ELECTED, HOWEVER, TO SETTLE
ON A TRACT AT THE WEST END OF THEIR "PRESENT RESERVATION."  SEC. 3. 

A SUBSTANTIAL AMOUNT OF LAND IN ROYCE AREA 617 WAS SETTLED BY
WHITES, AND DISPOSED OF BY THE UNITED STATES GOVERNMENT.  THE SUBJECT
OF THE PRESENT SUIT BEFORE THE INDIAN CLAIMS COMMISSION INCLUDES, INTER
ALIA, THE PROCEEDS FROM LAND SOLD AND DAMAGES FOR LAND GIVEN AWAY IN
VIOLATION OF THE ACT OF 1895. 

IN 1934, CONGRESS ALLOWED RESTORATION OF ALL LAND IN ROYCE AREA 617
NOT DISPOSED OF UNDER THE ACT OF 1895.  (48 STAT. 984.)  THE SECRETARY
OF THE INTERIOR RESTORED ALL SUCH LAND TO THE TRIVAL SOVEREIGNTY OF THE
SOUTHERN UTES.  THAT ORDER BEGAN: 

"(PURSUANT TO THE PROVISIONS OF THE ACT OF FEBRUARY 20, 1895 . . .
THE SOUTHERN UTE BAND OF INDIANS IN COLORADO CEDED TO THE UNITED STATES
A LARGE AREA OF THEIR RESERVATION IN THE STATE OF COLORADO ESTABLISHED
EXPRESSLY FOR THEIR BENEFIT UNDER THE TREATY OF JUNE 15, 1880 . . . ." 
(ORDER OF RESTORATION, SEPTEMBER 14, 1938, S. DOC. NO. 194, 76TH CONG.,
3D SESS., 659 (1941) (COMPILED BY C. KAPPLER).) 

THE CONFEDERATED BANDS HAVE SUED THE UNITED STATES IN THE PAST FOR
DAMAGES ARISING OUT OF BREACHES OF THE 1880 TREATY.  ONE SUCH SUIT WAS
SETTLED IN 1950, AND JUDGMENT WAS ENTERED PURSUANT TO A STIPULATION OF
THE PARTIES.  A SCHEDULE OF ALL LAND COVERED BY THE JUDGMENT WAS
INCLUDED, BUT OMISSIONS WERE PROVIDED FOR: 

"SO FAR AS THE PARTIES WITH DILIGENCE HAVE BEEN ABLE TO DETERMINE
THESE DESCRIPTIONS REPRESENT ALL THE LAND SO DISPOSED OF AND SET
ASIDE.  HOWEVER, THE JUDGMENT TO BE ENTERED IN THIS CASE IS RES
JUDICATA, NOT ONLY AS TO THE LAND DESCRIBED IN SCHEDULE 1, BUT, WHETHER
INCLUDED THEREIN OR NOT, ALSO AS TO ANY LAND FORMERLY OWNED OR CLAIMED
BY THE PLAINTIFFS IN WESTERN COLORADO, CEDED TO DEFENDANT BY THE ACT OF
JUNE 15, 1880 . . . ."  117 CT.CL. 433, 437.  NONE OF THE LAND IN ROYCA
AREA 617 (360 SECTIONS OR 21.8% OF THE TOTAL AREA WHICH HAD BEEN
WRONGLY DISPOSED OF) WAS THEREFORE INCLUDED. 

THE INDIAN CLAIMS COMMISSION FOUND THAT THE UNITED STATES HAD
ACKNOWLEDGED BY ITS ACTIONS THAT THE SOUTHERN UTE RESERVATION WAS NOT
CEDED BY THE 1880 AGREEMENT.  THEREFORE, ANY ACCOUNTING WHICH INCLUDED
SOUTHERN UTE LANDS IN CASE NO. 30360, 45 CT.CL. 440 (1910), WAS
ERRONEOUS AND BEYOND THE JURISDICTION OF THE COURT OF CLAIMS TO ENTER. 
THE COURT OF CLAIMS REMANDED THIS CASE TO THE COMMISSION FOR A
DETERMINATION OF THE INTENTION OF THE PARTIES IN ENTERING INTO THE 1950
STIPULATION.  PLAINTIFFS PRODUCED EVIDENCE THAT THEY NEVER INTENDED
ROYCE AREA 617 TO BE COVERED.  THE BROAD LANGUAGE OF THE STIPULATION
WAS TO INSURE THAT MINOR OMISSIONS WERE COVERED.  "DILIGENCE" WOULD NOT
HAVE PERMITTED THE EXCLUSION OF 360 SECTIONS OF LAND.  THE GOVERNMENT
REFUSED TO PRODUCE ANY DOCUMENTS WHICH MIGHT HAVE DISCLOSED THE INTENT
OF ITS SIGNATORIES, CLAIMING THIS WAS THE "WORK PRODUCT."  THE
COMMISSION FOUND NO INTENT TO INCLUDE LAND IN ROYCE AREA 617 IN THE
STIPULATION. 

THE COURT OF CLAIMS FOUND THAT THE LANGUAGE OF THE ACT OF 1880
APPEARED TO BE INCONSISTENT WITH THE FINDINGS OF THE COMMISSION, BUT
THAT THE EVENTS FROM 1880 TO 1895 SUPPORTED ITS CONCLUSION, I.E., THE
DECISION TO POSTPONE ISSUING ALLOTMENTS AND TO PRESERVE THE
RESERVATION, THE SEPARATION OF ROYCE AREA 617 BY THE ACT OF 1882, THE
DESCRIPTION OF THE DIVIDING LINE BY THE SECRETARY OF THE INTERIOR, THE
NEGOTIATIONS WITH THE SOUTHERN UTES TO MOVE, THE BELIEF BY THE
COMMISSIONER OF INDIAN AFFAIRS OF A DUTY TO KEEP WHITE PEOPLE OFF THE
"RESERVATION,"  /5/  THE ACT OF 1888, AND THE ACT OF 1895 PROVIDING
ADDITIONAL COMPENSATION FOR THE SOUTHERN UTES /6/ AND REQUIRING THER
APPROVAL.  /7/  THE EVIDENCE WEIGHED "SUBSTANTIALLY IN FAVOR OF THE
COMMISSION'S INTERPRETATION."  THE GOVERNMENT'S CONDUCT, THE COURT OF
CLAIMS SAID, EVIDENCED A RECOGNITION THAT "BY ITS PROTRACTED
ACQUIESCENCE IN THE SOUTHERN UTE OCCUPATION, GOVERNMENT RIGHTS TO THE
LAND HAD SOMEHOW LAPSED, OR THE AGREEMENT NOT BEING EXECUTED FOR SO
LONG A TIME, WAS RESCINDED AND DEAD."  191 CT.CL.,AT 19, 423 F.2D, AT
356. 

"HENCE WE FIND SECTION 5 OF THE 1895 AGREEMENT TO BE AN EXPLICIT
WAIVER OF THE GOVERNMENT'S RIGHTS CREATED IN THE 1880 AGREEMENT,
WHATEVER THEY WERE. 

  IT FOLLOWS THEN THAT THE SOUTHERN UTE LANDS IN CONTROVERSY WERE
CEDED IN 1895 NOT 1880."  191

CT.CL.,AT 19-20, 423 F.2D, AT 356.  THIS HOLDING WAS SUPPORTED ALSO
BY THE LANGAUGE EMPLOYED BY THE SECRETARY OF THE INTERIOR IN THE
RESTORATION OF 1938.  /8/ 

SINCE THE SOUTHERN UTE LAND WAS NOT CEDED IN 1880, ANY CLAIMS
INVOLVING THAT LAND WERE BEYOND THE MANDATE OF THE JURISDICTIONAL ACT
OF 1909, 35 STAT. 781, AND IMPROVIDENTLY HEARD IN 1910.  LIKEWISE THE
1950 JUDGMENT WAS NO BAR.  NEITHER PARTY HAD INTENDED IT TO APPLY TO
ROYCE AREA 617.  IF THE INTENTION OF THE PARTIES WAS IRRELEVANT, THE
STIPULATION ON ITS FACE WOULD NOT APPLY TO "AREAS NOT EFFECTIVELY
CEDED."  191 CT.CL.,AT 22, 423 F.2D, AT 358. 

THIS COURT NOW REVIEWS THOSE FINDINGS AND REVERSES.  IN DOING SO IT
SIMPLY REMARSHALS THE EVIDENCE FOR THE NEW RESULT, IGNORING THE LIMITS
OF THIS COURT'S APPELLATE JURISDICTION OVER THE COURT OF CLAIMS.  THE
QUESTION PRESENT IS EITHER A QUESTION OF FACT OR, AT BEST, A MIXED
QUESTION OF LAW AND FACT AND THE DETERMINATION OF THE COURT OF CLAIMS
IS BINDING ON THIS COURT IF IT IS SUPPORTED BY SUBSTANTIAL EVIDENCE. 
UNITED STATES V. SWIFT & CO., 270 U.S. 124, 138; UNITED STATES V. OMAHA
TRIBE OF INDIANS, 253 U.S. 275, 281.  THE RESULT BELOW IS CLEARLY
SUPPORTED.  IT IS NOT THE FUNCTION OF THIS COURT TO CONDUCT A TRIAL DE
NOVO ON THE ISSUES.  UNITED STATES V. FELIN & CO., 334 U.S. 624, 650
(JACKSON, J., DISSENTING); UNITED STATES V. PENN MFG. CO., 337 U.S.
198, 207 N. 4. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF CLAIMS. 

/1/  IT HAS BEEN SUGGESTED THAT THE INDIANS REFUSED TO TAKE THE
ALLOTMENTS OR WERE STALLING.  THIS APPEARS INCONSISTENT WITH THE REPORT
OF MR. MANYPENNY, THE CHAIRMAN OF THE UTE COMMISSION.  THE WHITE
SETTLERS WERE DISSATISFIED ON LEARNING THAT THE INDIANS MIGHT BE
ALLOWED TO SETTLE IN CERTAIN VALLEYS WHICH THE SETTLERS DESIRED.  THE
ALLOTMENT, AND SALE OF THE RESIDUE TO WHITES, WOULD LEAVE THE INDIANS
IN "CLOSE PROXIMITY TO THE WHITE SETTLEMENTS (AND) WILL SUBJECT THE
UTES . . . TO CONSTANT ANNOYANCE BY EVIL-DISPOSED PERSONS."  THE
INDIANS HAD TO BE PROTECTED FROM THIS.     "TO PREVENT INTRUSION AND
GUARANTEE PROPER ORDER AND PROTECTION, I CAN SEE NO OTHER WAY THAN TO
SO MODIFY THE (1880) AGREEMENT, SO FAR AS THESE INDIANS ARE CONCERNED,
AS TO MAINTAIN THE EXTERIOR LINES OF THE STRIP OF LAND ONE HUNDRED
MILES LONG AND FIFTEEN WIDE, AND PRESERVE ALL THE LAND WITHIN THESE
LINES FOR AN INDEFINITE PERIOD AS AN INDIAN RESERVATION, AND LET THE
UNITED STATES LAWS IN RELATION TO INDIAN RESERVATIONS HAVE FULL FORCE
THEREIN.  THEN THE LAND SELECTED, AND UPON WHICH THE INDIANS ARE TO BE
LOCATED, CAN BE KEPT FREE FROM INTRUDERS."  (H.R. EXEC. DOC. NO. 1, T.
5, VOL. 2, 47TH CONG., 1ST SESS., 383, 393 (1881)).  HE DID INDICATE
THAT THE INDIANS DID NOT WANT TO LIVE IN HOUSES, BUT NOT THAT THEY
WOULD NOT ACCEPT THE ALLOTMENTS. 

/2/  "FROM THIS DESCRIPTION IT WOULD SEEM THAT THE INTERIOR
DEPARTMENT AT LEAST WAS ALREADY VIEWING THE SOUTHERN UTE TERRITORY AS A
PERMANENT RESERVATION NOT CEDED UNDER THE TERMS OF THE 1880 CESSION. 
SPECIFICALLY, THE LETTER STATES THAT THE SURVEY LINE COMMENCE AT, NOT
IN, THE SOUTHWEST CORNER OF THE CEDED UTE LAND.  ADHERING TO
DEFENDANT'S CONTENTION THAT ALL LANDS WERE CEDED IN 1880, A LITERAL
INTERPRETATION OF THIS LETTER WOULD LEAD TO AN ANOMALOUS RESULT.  IF
THE STARTING POINT WAS PLACED AT THE SOUTHWESTERN CORNER OF UTE CEDED
LAND, THE POINT WOULD COINCIDE WITH THE CONVERGING POINT OF THE NEW
MEXICO, COLORADO AND UTAH BORDERS.  THE LINE COULD NOT EXTEND TO THE
WESTERN BOUNDARY OF COLORADO BECAUSE IT WOULD START THERE."  191
CT.CL.,AT 13, 423 F.2D, AT 352. 

/3/  THE SOUTHERN UTES CAME TO WASHINGTON IN 1886 TO NEGOTIATE FOR
AN EXCHANGE OF THEIR RESERVATION FOR ONE TO THE WEST.  SEE S. REP. NO.
836, 49TH CONG., 1ST SESS., 1-2 (1886). 

/4/  ON APRIL 5, 1886, HE REPORTED TO THE SECRETARY OF THE INTERIOR,
"(WE ARE BOUND BY SOLEMN TREATY STIPULATIONS WITH THESE INDIANS TO
PREVENT WHITE PEOPLE FROM ENTERING UPON OR CROSSING SAID RESERVATION." 
ID., AT 3. 

/5/  N. 4, SUPRA. 

/6/  THE TREATY OF 1880 REQUIRED THAT THE PROCEEDS FROM SALES OF ALL
LAND CEDED UNDER THAT AGREEMENT HAD TO BE CREDITED TO THE BENEFIT OF
ALL UTES.  TO CREDIT THE MONEY RECEIVED ONLY TO THE ACCOUNT OF SOUTHERN
UTES WOULD HAVE BEEN A VIOLATION OF THE TREATY IF THE LAND HAD BEEN
CEDED IN 1880. 

/7/  IF THE LAND HAD BEEN CEDED UNDER THE 1880 AGREEMENT, ACCEPTANCE
OF THE ACT OF 1895 WAS COMPLETELY UNNECESSARY. 

/8/  "THUS, DEFENDANT'S OFFICIALS DO NOT ONLY CONCEDE THAT THE LANDS
WERE CEDED IN 1895, BUT THEY ALSO ENLIGHTEN US AS TO THE STATUS IT
RETROSPECTIVELY APPLIED TO THE 1880 AGREEMENT.  SUCH A STATEMENT BY AN
EXECUTIVE AGENCY BEARING ON THE MEANING OF A TREATY MUST BE ACCORDED
GREAT WEIGHT."  191 CT.CL.,AT 20, 423 F.2D, AT 356. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
KASHIWA, PETER L. STRAUSS, AND EDMUND B. CLAR,. 

GLEN A. WILKINSON ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS RICHARD A. BAENEN. 
..END :









KEYES V. SCHOOL DISTRICT NO. 1, 402 U.S. 182 


       KEYES V. SCHOOL DISTRICT NO. 1

        ON MOTION TO VACATE STAY

        DECIDED APRIL 26, 1971 


COURT OF APPEALS' STAY OF DISTRICT COURT'S DESEGREGATION ORDER
PENDING ISSUANCE OF THIS COURT'S DECISIONS IN SWANN V. BOARD OF
EDUCATION, ANTE, P. 1, AND RELATED CASES, VACATED NOW THAT THE OPINIONS
IN THOSE CASES HAVE BEEN ISSUED. 

VACATED. 

PER CURIAM. 

THE SOLE BASIS FOR THE TENTH CIRCUIT'S ACTION IN GRANTING THE STAY
OF THE DISTRICT COURT'S ORDER IN THIS CASE WAS THE VIEW "THAT IT WOULD
BE UNFAIR TO THE SCHOOL DISTRICT TO COMPEL IT TO TAKE FURTHER STEPS IN
THE IMPLEMENTATION OF THE TOTAL PLAN UNTIL (THE TENTH CIRCUIT) AND THE
PARTY LITIGANTS HAVE THE BENEFIT OF THE UNITED STATES SUPREME COURT
DECISIONS IN THE SWANN AND COMBINED DESEGREGATION CASES . . . ." 

THE DECISIONS IN THOSE CASES HAVING NOW BEEN ANNOUNCED, IT IS PROPER
TO VACATE THE STAY AND REMIT THE MATTER TO THE COURT OF APPEALS FREED
OT ITS EARLIER SPECULATION AS TO THE BEARING OF OUR DECISION IN SWANN
AND RELATED CASES. 

WE, OF COURSE, INTIMATE NO VIEWS UPON THE MERITS OF THE UNDERLYING
ISSUES. 
..END :




















ROSENBERG V. YEE CHIEN WOO, 402 U.S. 49 


       ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION

           SERVICE V. YEE CHIEN WOO

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

        NINTH CIRCUIT

        NO. 156.  ARGUED FEBRUARY 23, 1971-- DECIDED APRIL 21,
1971 


IN 1953, RESPONDENT FLED MAINLAND CHINA, OF WHICH HE WAS A NATIONAL,
GOING TO HONG KONG, WHERE HE RESIDED WITH HIS FAMILY UNTIL 1960, WHEN
HE CAME TO THE UNITED STATES AS A BUSINESS VISITOR.  HE REMAINED IN
THIS COUNTRY, THOUGH HE KEPT HIS BUSINESS IN HONG KONG FOR SEVERAL
YEARS.  HIS TEMPORARY PERMIT HAVING EXPIRED, THE IMMIGRATION AND
NATURALIZATION SERVICE (INS) IN 1966 BEGAN DEPORTATION PROCEEDINGS. 
RESPONDENT THEN SOUGHT CLASSIFICATION AS A REFUGEE UNDER SEC. 203(A)(7)
OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, WHICH PROVIDES THAT
ALIENS MAY APPLY IN ANY NON-COMMUNIST COUNTRY FOR CONDITIONAL ENTRY
INTO THE UNITED STATES IF (I) THEY HAVE FLED FROM ANY COMMUNIST COUNTRY
BECAUSE OF POLITICAL OPINION, (II) ARE REMAINING AWAY FROM THAT COUNTRY
FOR THOSE REASONS, AND (III) ARE NOT NATIONALS OF THE COUNTRY IN WHICH
THEY APPLY FOR CONDITIONAL ENTRY.  THE INS DIRECTOR DENIED RESPONDENT'S
APPLICATION ON THE GROUND THAT SEC. 203(A)(7) REQUIRES THAT "PHYSICAL
PRESENCE IN THE UNITED STATES (BE) A CONSEQUENCE OF AN ALIEN'S FLIGHT
IN SEARCH OF A REFUGE" AND THAT SUCH PRESENCE MUST BE "REASONABLY
PROXIMATE TO THE FLIGHT AND NOT ONE FOLLOWING A FLIGHT REMOTE IN POINT
OF TIME OR INTERVENING RESIDENCE IN A THIRD COUNTRY REASONABLY
CONSTITUTING A TERMINATION OF THE ORIGINAL FLIGHT IN SEARCH OF
REFUGE."  WITHOUT DECIDING WHETHER RESETTLEMENT WOULD HAVE BARRED
RESPONDENT'S CLAIM, THE DISTRICT COURT REVERSED THE INS DETERMINATION,
ON THE GROUND THAT RESPONDENT HAD NEVER FIRMLY RESETTLED IN HONG KONG. 
THE COURT OF APPEALS AFFIRMED ON THE BASIS THAT THE RELEVANT FACTOR WAS
NOT THE "FIRMLY RESETTLED" ISSUE BUT THAT UNDER SEC. 203(A)(7)(III)
RESPONDENT WAS A NATIONAL OF COMMUNIST CHINA, FROM WHICH HE WAS A
REFUGEE, AND NOT A NATIONAL OF HONG KONG.  HELD:  WHETHER A REFUGEE HAS
ALREADY "FIRMLY RESETTLED" IN ANOTHER COUNTRY IS RELEVANT TO
DETERMINING THE AVAILABILITY TO HIM OF THE ASYLUM PROVISION OF SEC.
203(A)(7), SINCE CONGRESS DID NOT INTEND TO GRANT ASYLUM TO A REFUGEE
WHO HAS FOUND PERMANENT SHELTER IN ANOTHER COUNTRY, AND THE SEC.
203(A)(7)(III) NATIONALITY REQUIREMENT IS NO SUBSTITUTE FOR THE
"RESETTLEMENT"  CONCEPT.  PP. 52-58. 

419 F.2D 252, REVERSED AND REMANDED. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND HARLAN, WHITE, AND BLACKMUN, JJ., JOINED.  STEWART, J., FILED
A DISSENTING OPINION, IN WHICH DOUGLAS, BRENNAN, AND MARSHALL, JJ.,
JOINED, POST, P. 58. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, YEE CHIEN WOO, IS A NATIVE OF MAINLAND CHINA, A
COMMUNIST COUNTRY, WHO FLED THAT COUNTRY IN 1953 AND SOUGHT REFUGE IN
HONG KONG.  HE LIVED IN HONG KONG UNTIL 1959 WHEN HE CAME TO THE UNITED
STATES AS A VISITOR TO SELL MERCHANDISE THROUGH A CONCESSION AT A TRADE
FAIR IN PORTLAND, OREGON.  AFTER A SHORT STAY, HE RETURNED TO HONG KONG
ONLY TO COME BACK TO THE UNITED STATES IN 1960 TO PARTICIPATE IN THE
SAN DIEGO FAIR AND INTERNATIONAL TRADE MART TO PROMOTE HIS HONG KONG
BUSINESS.  THEREAFTER HE REMAINED IN THE UNITED STATES ALTHOUGH HE
CONTINUED TO MAINTAIN HIS CLOTHING BUSINESS IN HONG KONG UNTIL 1965. 
IN 1965 RESPONDENT'S WIFE AND SON OBTAINED TEMPORARY VISITOR'S PERMITS
AND JOINED HIM IN THIS COUNTRY.  BY 1966 ALL THREE HAD OVERSTAYED THEIR
PERMITS AND WERE NO LONGER AUTHORIZED TO REMAIN IN THIS COUNTRY.  AFTER
THE IMMIGRATION AND NATURALIZATION SERVICE BEGAN DEPORTATION
PROCEEDINGS, YEE CHIEN WOO APPLIED FOR AN IMMIGRANT VISA CLAIMING A
"PREFERENCE" AS AN ALIEN WHO HAD FLED A COMMUNIST COUNTRY FEARING
PERSECUTION AS DEFINED IN SEC. 203(A)(7) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, AS AMENDED, 79 STAT. 913, 8 U.S. 1153(A)(7)
(1964 ED., SUPP. V). 

THE DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE
DENIED RESPONDENT'S APPLICATION BECAUSE "THE APPLICANT'S PRESENCE IN
THE UNITED STATES . . . WAS NOT AND IS NOT NOW A PHYSICAL PRESENCE
WHICH WAS A CONSEQUENCE OF HIS FLIGHT IN SEARCH OF REFUGE FROM THE
CHINESE MAINLAND."  ON APPEAL WITHIN THE IMMIGRATION AND NATURALIZATION
SERVICE, THE DECISION OF THE DISTRICT DIRECTOR WAS AFFIRMED BY THE
REGIONAL COMMISSIONER ON THE GROUND THAT "CONGRESS DID NOT INTEND THAT
AN ALIEN, THOUGH FORMERLY A REFUGEE, WHO HAD ESTABLISHED ROOTS OR
ACQUIRED A RESIDENCE IN A COUNTRY OTHER THAN THE ONE FROM WHICH HE FLED
WOULD AGAIN BE CONSIDERED A REFUGEE FOR THE PURPOSE OF GAINING ENTRY
INTO AND OR SUBSEQUENTLY ACQUIRING STATUS AS A RESIDENT IN THIS, THE
THIRD COUNTRY." 

RESPONDENT THEN SOUGHT REVIEW IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA WHICH REVERSED THE DISTRICT
DIRECTOR'S DETERMINATION.  THAT COURT, WITHOUT EVER DECIDING WHETHER
RESETTLEMENT WOULD HAVE BARRED RESPONDENT'S CLAIM, FOUND AS A MATTER OF
FACT THAT HE HAD NEVER FIRMLY RESETTLED IN HONG KONG.  /1/  THE
IMMIGRATION AND NATURALIZATION SERVICE APPEALED TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT.  THAT COURT AFFIRMED THE
DISTRICT COURT BECAUSE IN ITS VIEW WHETHER YEE CHIEN WOO WAS "FIRMLY
RESETTLED" IN HONG KONG WAS "IRRELEVANT" TO CONSIDERATION OF HIS
APPLICATION FOR AN IMMIGRATION QUOTA.  IT STATED: 

     "WHETHER APPELLEE WAS FIRMLY RESETTLED IN HONG KONG IS NOT,

  THEN, RELEVANT.  WHAT IS RELEVANT IS THAT HE IS NOT A NATIONAL OF

HONG KONG (OR THE UNITED KINGDOM); THAT HE IS A NATIONAL OF NO

  COUNTRY BUT COMMUNIST CHINA AND AS A REFUGEE FROM THAT COUNTRY

  REMAINS STATELESS."  419 F.2D 252, 254 (1969). 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN A CASE DECIDED AFTER THE
NINTH CIRCUIT DECISION BELOW FACED THE ISSUE OF THE RELEVANCY OF
RESETTLEMENT AND EXPRESSLY DECLINED TO FOLLOW THE NINTH CIRCUIT
INTERPRETATION OF THE STATUTE.  /2/  SHEN V. ESPERDY, 428 F.2D 293
(1970).  WE GRANTED CERTIORARI IN THIS CASE TO RESOLVE THE CONFLICT. 
400 U.S. 864 (1970). 

SINCE 1947 THE UNITED STATES HAS HAD A CONGRESSIONALLY ENACTED
IMMIGRATION AND NATURALIZATION POLICY WHICH GRANTED IMMIGRATION AND
NATURALIZATION POLICY WHICH GRANTED IMMIGRATION PREFERENCES TO
"DISPLACED PERSONS," "REFUGEES," OR PERSONS WHO FLED CERTAIN AREAS OF
THE WORLD BECAUSE OF "PERSECUTION OR FEAR OF PERSECUTION ON ACCOUNT OF
RACE, RELIGION, OR POLITICAL OPINION."  ALTHOUGH THE LANGUAGE THROUGH
WHICH CONGRESS HAS IMPLEMENTED THIS POLICY SINCE 1947 HAS CHANGED
SLIGHTLY FROM TIME TO TIME, THE BASIC POLICY HAS REMAINED CONSTANT-- TO
PROVIDE A HAVEN FOR HOMELESS REFUGEES AND TO FULFILL AMERICAN
RESPONSIBILITIES IN CONNECTION WITH THE INTERNATIONAL REFUGEE
ORGANIZATION OF THE UNITED NATIONS.  THIS POLICY IS CURRENTLY EMBODIED
IN THE "SEVENTH PREFERENCE" OF SEC. 203(A) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 8 U.S.C. 1153(A) (1964 ED., SUPP. V), WHICH
PROVIDES IN PERTINENT PART: 

     "(A) ALIENS WHO ARE SUBJECT TO THE NUMERICAL LIMITATIONS

  SPECIFIED IN SECTION 201(A) SHALL BE ALLOTTED VISAS OR THEIR

  CONDITIONAL ENTRY AUTHORIZED, AS THE CASE MAY BE, AS FOLLOWS:

        .          .          .        . 

     "(7) (ALIENS WHO SATISFY AN IMMIGRATION AND NATURALIZATION

  SERVICE OFFICER AT AN EXAMINATION IN ANY NON-COMMUNIST OR NON

  COMMUNIST-DOMINATED COUNTRY, (A) THAT (I) BECAUSE OF PERSECUTION

  OR FEAR OF PERSECUTION ON ACCOUNT OF RACE, RELIGION, OR POLITICAL

  OPINION THEY HAVE FLED (I) FROM ANY COMMUNIST OR

  COMMUNIST-DOMINATED COUNTRY OR AREA, . . . AND (II) ARE UNABLE OR

  UNWILLING TO RETURN TO SUCH COUNTRY OR AREA ON ACCOUNT OF RACE,

  RELIGION, OR POLITICAL OPINION, AND (III) ARE NOT NATIONALS OF

THE COUNTRIES OR AREAS IN WHICH THEIR APPLICATION FOR CONDITIONAL

  ENTRY IS MADE . . . ." 

THE NINTH CIRCUIT SUPPORTED ITS CONCLUSION THAT THE "FIRMLY
RESETTLED" CONCEPT WAS IRRELEVANT UNDER SEC. 203(A)(7) UPON TWO BASES. 
FIRST, THE COURT NOTED THAT THE "FIRMLY RESETTLED" LANGUAGE WAS FIRST
INTRODUCED IN THE DISPLACED PERSONS ACT OF 1948, 62 STAT. 1009, AND WAS
THEN EXPRESSLY STATED IN THE REFUGEE RELIEF ACT OF 1953, 67 STAT. 400,
BOTH OF WHICH ARE PREDECESSORS OF THE PRESENT LEGISLATION.  /3/
HOWEVER, WHEN THE REFUGEE RELIEF ACT OF 1953 WAS EXTENDED IN 1957, THE
"FIRMLY RESETTLED" LANGUAGE WAS DROPPED IN FAVOR OF A FORMULA DEFINING
AN ELIGIBLE REFUGEE AS "ANY ALIEN WHO, BECAUSE OF PERSECUTION OR FEAR
OF PERSECUTION ON ACCOUNT OF RACE, RELIGION, OR POLITICAL OPINION HAS
FLED OR SHALL FLEE" FROM CERTAIN AREAS.  71 STAT. 643.  THE 1957 ACT
WAS THEN FOLLOWED BY THE FAIR SHARE REFUGEE ACT OF 1960, 74 STAT. 504,
WHICH DEFINED "REFUGEE" AS ONE "NOT A NATIONAL OF THE AREA IN WHICH THE
APPLICATION IS MADE AND (3) (WHO) IS WITHIN THE MANDATE OF THE UNITED
NATIONS HIGH COMMISSIONER FOR REFUGEES."  FINALLY, THE PRESENT
LEGISLATION WAS ADDED TO THE IMMIGRATION AND NATIONALITY ACT IN 1965. 
FROM THE 1957 ABANDONMENT OF THE WORDS "FIRMLY RESETTLED" THE COURT OF
APPEALS DETERMINED THAT CONGRESS HAD PURPOSELY REJECTED "RESETTLEMENT"
AS A TEST FOR ELIGIBILITY FOR REFUGEE STATUS. 

SECOND, THE NINTH CIRCUIT GAVE PARTICULAR SIGNIFICANCE TO THE
STATUTORY REQUIREMENT THAT REFUGEES "ARE NOT NATIONALS OF THE COUNTRIES
OR AREAS IN WHICH THEIR APPLICATION FOR CONDITIONAL ENTRY IS MADE." 
THUS, IN THE COURT'S VIEW, CONGRESS INTENDED TO SUBSTITUTE THE "NOT
NATIONALS" REQUIREMENT FOR THE NOT "FIRMLY RESETTLED" REQUIREMENT.  FOR
SUBSTANTIALLY THE REASONS STATED BY THE SECOND CIRCUIT IN SHEN V.
ESPERDY, 428 F.2D 293 (1970), WE FIND NO CONGRESSIONAL INTENT TO DEPART
FROM THE ESTABLISHED CONCEPT OF "FIRM RESETTLEMENT" AND WE DO NOT GIVE
THE "NOT NATIONALS" REQUIREMENT OF SEC. 203(A)(7)(III) AS BROAD A
CONSTRUCTION AS DID THE COURT BELOW. 

WHILE CONGRESS DID NOT CARRY THE WORDS "FIRMLY RESETTLED" OVER INTO
THE 1957, 1960, AND 1965 ACTS FROM THE EARLIER LEGISLATION, CONGRESS
DID INTRODUCE A NEW REQUIREMENT INTO THE 1957 ACT-- THE REQUIREMENT OF
"FLIGHT."  THE 1957 ACTS, AS WELL AS THE PRESENT LAW, SPEAKS OF PERSONS
WHO HAVE "FLED" TO AVOID PERSECUTION.  /4/  BOTH THE TERMS "FIRMLY
RESETTLED"  AND "FLED" ARE CLOSELY RELATED TO THE CENTRAL THEME OF ALL
23 YEARS OF REFUGEE LEGISLATION-- THE CREATION OF A HAVEN FOR THE
WORLD'S HOMELESS PEOPLE.  THIS THEME IS CLEARLY UNDERLINED BY THE VERY
TITLES OF THE ACTS OVER THE YEARS FROM THE DISPLACED PERSONS ACT IN
1948 THROUGH THE REFUGEE ACT OF 1960.  RESPONDENT'S RELIANCE ON THE
FAIR SHARE REFUGEE ACT OF 1960 TO SHOW THAT CONGRESS ABANDONED THE
"FIRMLY RESETTLED"  CONCEPT IS PARTICULARLY MISPLACED BECAUSE CONGRESS
ENVISIONED THAT LEGISLATION NOT ONLY AS THE MEANS THROUGH WHICH THIS
COUNTRY WOULD FULFILL ITS OBLIGATIONS TO REFUGEES, BUT ALSO AS AN
INCENTIVE TO OTHER NATIONS TO DO LIKEWISE.  /5/  FAR FROM ENCOURAGING
RESETTLED REFUGEES TO LEAVE ONE SECURE HAVEN FOR ANOTHER, THE ACT
ESTABLISHED UNITED STATES QUOTAS AS A PERCENTAGE-- 25%-- OF THE
REFUGEES ABSORBED BY ALL OTHER COOPERATING NATIONS.  THE FAIR SHARE
REFUGEE ACT, LIKE ITS SUCCESSOR AND PREDECESSORS, WAS ENACTED TO HELP
ALLEVIATE THE SUFFERING OF HOMELESS PERSONS AND THE POLITICAL
INSTABILITY ASSOCIATED WITH THEIR PLIGHT.  IT WAS NEVER INTENDED TO
OPEN THE UNITED STATES TO REFUGEES WHO HAD FOUND SHELTER IN ANOTHER
NATION AND HAD BEGUN TO BUILD NEW LIVES.  NOR COULD CONGRESS HAVE
INTENDED TO MAKE REFUGEES IN FLIGHT FROM PERSECUTION COMPETE WITH ALL
OF THE WORLD'S RESETTLED REFUGEES FOR THE 10,200 ENTRIES AND PERMITS
AFFORDED EACH YEAR UNDER SEC. 203(A)(7).  SUCH AN INTERPRETATION WOULD
SUBVERT THE LOFTY GOALS EMBODIES IN THE WHOLE PATTERN OF OUR REFUGEE
LEGISLATION. 

IN SHORT, WE HOLD THAT THE "RESETTLEMENT" CONCEPT IS NOT
IRRELEVANT.  IT IS ONE OF THE FACTORS WHICH THE IMMIGRATION AND
NATURALIZATION SERVICE MUST TAKE INTO ACCOUNT TO DETERMINE WHETHER A
REFUGEE SEEKS ASYLUM IN THIS COUNTRY AS A CONSEQUENCE OF HIS FLIGHT TO
AVOID PERSECUTION.  THE DISTRICT DIRECTOR APPLIED THE CORRECT LEGAL
STANDARD WHEN HE DETERMINED THAT SEC. 203(A)(7) REQUIRES THAT "PHYSICAL
PRESENCE IN THE UNITED STATES (BE) A CONSEQUENCE OF AN ALIEN'S FLIGHT
IN SEARCH OF REFUGE," AND FURTHER THAT "THE PHYSICAL PRESENCE MUST BE
ONE WHICH IS REASONABLY PROXIMATE TO THE FLIGHT AND NOT ONE FOLLOWING A
FLIGHT REMOTE IN POINT OF TIME OR INTERRUPTED BY INTERVENING RESIDENCE
IN A THIRD COUNTRY REASONABLY CONSTITUTING A TERMINATION OF THE
ORIGINAL FLIGHT IN SEARCH OF REFUGE."  /6/ 

FINALLY, WE HOLD THAT THE REQUIREMENT OF SEC. 203(A)(7)(A)(III) THAT
REFUGEES NOT BE "NATIONALS OF THE COUNTRIES OR AREAS IN WHICH THEIR
APPLICATION FOR CONDITIONAL ENTRY IS MADE" IS NOT A SUBSTITUTE FOR THE
"RESETTLEMENT" CONCEPT.  IN THE FIRST PLACE THAT SECTION IS NOT EVEN
APPLICABLE TO RESPONDENT.  HE WAS APPLYING FOR AN IMMIGRANT VISA, NOT A
CONDITIONAL ENTRY PERMIT TO WHICH PART (A)(III) OF SUBSECTION 7 IS
EXPRESSLY LIMITED.  HE HAD ALREADY BEEN GRANTED ENTRY TO THE UNITED
STATES AS A BUSINESS VISITOR.  SECOND, EVEN IF THE PROVISION WERE
APPLICABLE, THE COUNTRY "IN WHICH" RESPONDENT'S APPLICATION WAS MADE
WAS THE UNITED STATES AND HE WAS CERTAINLY NOT A NATIONAL OF THIS
COUNTRY.  HAD HE BEEN A NATIONAL HE OF COURSE WOULD HAVE BEEN ENTITLED
TO REMAIN HERE.  SECTION 203(A)(7)(A)(III) APPLIES ONLY TO APPLICATIONS
FOR CONDITIONAL ENTRY INTO THIS COUNTRY MADE TO IMMIGRATION AND
NATURALIZATION OFFICERS AUTHORIZED TO ACCEPT SUCH APPLICATIONS AT
POINTS OUTSIDE THE UNITED STATES. 

BECAUSE IT WAS UNDER THE ERRONEOUS IMPRESSION THAT RESETTLEMENT WAS
IRRELEVANT TO REFUGEE STATUS UNDER SEC. 203(A)(7), THE COURT OF APPEALS
FAILED TO REVIEW THE DISTRICT COURT'S FINDING THAT RESPONDENT HAD NEVER
FIRMLY RESETTLED IN HONG KONG.  THE DISTRICT DIRECTOR IS, OF COURSE,
ENTITLED TO REVIEW OF THAT DETERMINATION UNDER THE LEGAL TEST SET OUT
IN THIS OPINION AND THE APPROPRIATE STANDARDS FOR JUDICIAL REVIEW. 
CONSEQUENTLY, THE JUDGMENT BELOW IS REVERSED AND THE CASE IS REMANDED
TO THE NINTH CIRCUIT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

        REVERSED AND REMANDED. 

/1/  "WITHOUT EXPRESSING ANY OPINION AS TO WHY CONGRESS CHOSE TO
OMIT THE 'FIRMLY RESETTLED' PROVISION IN THE AMENDMENTS TO THE REFUGEE
RELIEF ACT OF 1953, THIS COURT FINDS THAT PLAINTIFF WAS NEVER 'FIRMLY
RESETTLED' AND STILL QUALIFIES AS A REFUGEE UNDER THE TERMS OF SECTION
203(A)(7).  ACCORDINGLY, THE DISTRICT DIRECTOR ERRED IN DENYING
PLAINTIFF'S APPLICATION."  295 F.SUPP.  1370, 1372 (1968). 

/2/  THE SECOND CIRCUIT DEALT AT LENGTH WITH THE NINTH CIRCUIT'S
OPINION IN THIS CASE, CONCLUDING: 

"IN SO FAR AS YEE CHIEN WOO V. ROSENBERG HOLDS THAT THE CONCEPT OF
FIRM RESETTLEMENT IS IRRELEVANT TO APPLICATIONS MADE UNDER SECTION
203(A)(7) OF THE ACT, WE MUST DISAGREE WITH THE NINTH CIRCUIT."  428
F.2D 293, 298 (1970). 

/3/  THE DISPLACED PERSONS ACT OF 1948 DEFINED A "DISPLACED PERSON"
BY REFERENCE TO THE CONSTITUTION OF THE INTERNATIONAL REFUGEE
ORGANIZATION (IRO) AND TO PERSONS WHO WERE OF CONCERN TO THAT
ORGANIZATION.  PERSONS CEASED TO BE OF CONCERN TO THE IRO WHEN THEY
ACQUIRED A NEW NATIONALITY OR BY THEIR FIRM ESTABLISHMENT.  S. REP. NO.
950, 80TH CONG., 2D SESS., 68. 

THE REFUGEE RELIEF ACT OF 1953 PROVIDED:  "'REFUGEE' MEANS ANY
PERSON IN A COUNTRY OR AREA WHICH IS NEITHER COMMUNIST NOR COMMUNIST
DOMINATED, WHO BECAUSE OF PERSECUTION, FEAR OF PERSECUTION, NATURAL
CALAMITY OR MILITARY OPERATIONS IS OUT OF HIS USUAL PLACE OF ABODE AND
UNABLE TO RETURN THERETO, WHO HAS NOT BEEN FIRMLY RESETTLED, AND WHO IS
IN URGENT NEED OF ASSISTANCE FOR THE ESSENTIALS OF LIFE OR FOR
TRANSPORTATION."  REFUGEE RELIEF ACT OF 1953, SEC. 2(A), 67 STAT. 400. 

/4/  THE 1957 AMENDMENTS TO THE REFUGEE RELIEF ACT OF 1953 DID NOT
MARK ANY GREAT CHANGE IN AMERICAN REFUGEE POLICY.  CONGRESS WAS
PRIMARILY CONCERNED WITH DISTRIBUTING 18,656 VISAS THAT WERE ORIGINALLY
AUTHORIZED UNDER THE 1953 ACT BUT REMAINED UNISSUED WHEN THAT ACT
EXPIRED ON JANUARY 1, 1957.  THE SENATE REPORT ON THE BILL STATES THE
CONGRESSIONAL INTENT:  "IT IS THE INTENTION OF THE COMMITTEE THAT THE
DISTRIBUTION OF THIS REMAINDER WILL BE MADE IN A FAIR AND EQUITABLE
MANNER, WITHOUT ANY PRESCRIBED NUMERICAL LIMITATIONS FOR ANY PARTICULAR
GROUP, ACCORDING TO THE SHOWING OF HARDSHIP, PERSECUTION, AND THE
WELFARE OF THE UNITED STATES."  S. REP. NO. 1057, 85TH CONG., 1ST
SESS., 6.  INDEED, AFTER THE 1957 ACT BECAME LAW THE IMMIGRATION AND
NATURALIZATION SERVICE PROMULGATED AND UNIFORMLY ADMINISTERED
REGULATIONS WHICH SPECIFICALLY REFERRED TO THE RESETTLEMENT
REQUIREMENT.     "SEC. 44.1 DEFINITIONS.              .          .
.          . 

"(F) 'REFUGEE' MEANS ANY PERSON IN A COUNTRY OR AREA WHICH IS
NEITHER COMMUNIST NOR COMMUNIST-DOMINATED, WHO BECAUSE OF PERSECUTION,
FEAR OF PERSECUTION, NATURAL CALAMITY OR MILITARY OPERATIONS IS OUT OF
HIS USUAL PLACE OF ABODE AND UNABLE TO RETURN THERETO, WHO HAS NOT BEEN
FIRMLY RESETTLED AND WHO IS IN URGENT NEED OF ASSISTANCE FOR THE
ESSENTIALS OF LIFE OR FOR TRANSPORTATION."  22 CFR SEC. 44.1 (1958), 22
FED. REG. 10826 (DEC. 27, 1957). 

/5/  CAREFUL STUDY OF THE FAIR SHARE REFUGEE ACT DEMONSTRATES THAT
RESETTLEMENT WAS RELEVANT EVEN UNDER THAT LEGISLATION.  IN ORDER TO
QUALIFY AS A REFUGEE UNDER THE FAIR SHARE REFUGEE ACT, THE ALIEN HAD TO
BE "WITHIN THE MANDATE OF THE UNITED NATIONS HIGH COMMISSIONER FOR
REFUGEES."  SPECIFICALLY EXCLUDED FROM THE COMMISSIONER'S COMPETENCE
WAS A PERSON WHO "IS RECOGNIZED BY THE COMPETENT AUTHORITIES OF THE
COUNTRY IN WHICH HE HAS TAKEN RESIDENCE AS HAVING THE RIGHTS AND
OBLIGATIONS WHICH ARE ATTECHED TO THE POSSESSION OF THE NATIONALITY OF
THAT COUNTRY . . . ."  STATUTE OF THE OFFICE OF THE UNITED NATIONS HIGH
COMMISSIONER FOR REFUGEES, C. II, PAR. 7(B), CONTAINED IN G.A. RES. 428
(V), DECEMBER 14, 1950.  IT APPEARS THAT UNDER THIS STATUTE, YEE CHIEN
WOO PROBABLY WOULD NOT HAVE FALLEN WITHIN THE COMMISSIONER'S MANDATE
BECAUSE ALTHOUGH HE WAS NOT A HONG KONG (OR BRITISH) NATIONAL, HE
POSSESSED VALID HONG KONG IDENTITY PAPERS ENABLING HIM TO RETURN AND
LIVE THERE. 

/6/  THE LEGAL STANDARD EMPLOYED BY THE DISTRICT DIRECTOR AND
APPROVED HERE TODAY DOES NOT EXCLUDE FROM REFUGEE STATUS THOSE WHO HAVE
FLED FROM PERSECUTION AND WHO MAKE THEIR FLIGHT IN SUCCESSIVE STAGES. 
CERTAINLY MANY REFUGEES MAKE THEIR ESCAPE TO FREEDOM FROM PERSECUTION
IN SUCCESSIVE STAGES AND COME TO THIS COUNTRY ONLY AFTER STOPS ALONG
THE WAY.  SUCH STOPS DO NOT NECESSARILY MEAN THAT THE REFUGEE'S AIM TO
REACH THESE SHORES HAS IN ANY SENSE BEEN ABANDONED.  HOWEVER, THERE ARE
MANY REFUGEES WHO HAVE FIRMLY RESETTLED IN OTHER COUNTRIES AND WHO
EITHER NEVER AIMED TO REACH THESE SHORES OR HAVE LONG SINCE ABANDONED
THAT AIM.  IN THE WORDS OF THE DISTRICT DIRECTOR, THE PRESENCE OF SUCH
PERSONS IN THIS COUNTRY IS NOT "ONE WHICH IS REASONABLY PROXIMATE TO
THE FLIGHT" OR IS "REMOTE IN POINT OF TIME OR INTERRUPTED BY
INTERVENING RESIDENCE IN A THIRD COUNTRY."  SUCH PERSONS ARE NOT
ENTITLED TO REFUGEE STATUS UNDER SEC. 203(A)(7). 

IN THIS VERY CASE, THE DISTRICT COURT FOUND THAT YEE CHIEN WOO WAS
NOT FIRMLY RESETTLED EVEN THOUGH HE HAD LIVED IN HONG KONG FOR SIX
YEARS AFTER HIS INITIAL FLIGHT.  WE DO NOT EXPRESS AN OPINION ON THAT
FINDING BUT MERELY REMAND THE CASE TO THE COURT OF APPEALS FOR REVIEW
IN ACCORD WITH THE PROPER LEGAL STANDARD. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

ON MARCH 8, 1966, THE RESPONDENT, WHO FLED MAINLAND CHINA FOR HONG
KONG IN 1953 AND HAS RESIDED IN THE UNITED STATES SINCE MAY 22, 1960,
FILED WITH THE IMMIGRATION AND NATURALIZATION SERVICE AN APPLICATION
FOR ADJUSTMENT OF STATUS PURSUANT TO SEC. 203(A)(7) OF THE IMMIGRATION
AND NATIONALITY ACT, AS AMENDED, 8 U.S.C. 1153(A)(7) (1964 ED., SUPP.
V).  BY THE TERMS OF SEC. 203(A)(7) APPLICANTS FOR ADJUSTMENT OF STATUS
ARE REQUIRED TO SHOW: 

1.  THAT THEY "HAVE BEEN CONTINUOUSLY PHYSICALLY PRESENT IN THE
UNITED STATES FOR A PERIOD OF AT LEAST TWO YEARS PRIOR TO APPLICATION
FOR ADJUSTMENT OF STATUS;" 

2.  THAT "BECAUSE OF PERSECUTION OR FEAR OF PERSECUTION ON ACCOUNT
OF RACE, RELIGION, OR POLITICAL OPINION THEY HAVE FLED (I) FROM ANY
COMMUNIST OR COMMUNIST-DOMINATED COUNTRY OR AREA . . .;" 

3.  THAT THEY "ARE UNABLE OR UNWILLING TO RETURN TO SUCH COUNTRY OR
AREA ON ACCOUNT OF RACE, RELIGION, OR POLITICAL OPINION;" 

4.  THAT THEY "ARE NOT NATIONALS OF THE COUNTRIES OR AREAS IN WHICH
THEIR APPLICATION FOR CONDITIONAL ENTRY IS MADE . . . ." 

THE DISTRICT DIRECTOR DENIED THE RESPONDENT'S APPLICATION FOR
ADJUSTMENT OF STATUS BECAUSE OF "INTERVENING RESIDENCE IN A THIRD
COUNTRY REASONABLY CONSTITUTING A TERMINATION OF THE ORIGINAL FLIGHT IN
SEARCH OF REFUGE."  AN ADMINISTRATIVE APPEAL WAS CERTIFIED TO THE
REGIONAL COMMISSIONER WHO HELD THAT SEC. 203(A)(7) DOES NOT APPLY "TO
ALIENS WHO ALTHOUGH THEY HAD FLED FROM THEIR OWN COUNTRY WERE LATER
RESETTLED IN ANOTHER COUNTRY." 

HAVE "RESETTLED" PRIOR TO HIS APPLICATION FOR CONDITIONAL ENTRY OR
ADJUSTMENT OF STATUS.  A REQUIREMENT THAT AN APPLICANT SHALL NOT HAVE
"FIRMLY RESETTLED" DID APPEAR IN AN EARLIER VERSION OF THE LAW BUT WAS
ELIMINATED BY THE 1957 AMENDMENTS TO THE REFUGEE RELIEF ACT OF 1953. 
THE REQUIREMENT WAS NOT REINTRODUCED IN ANY OF THE SUBSEQUENT
ENACTMENTS.  TO THE CONTRARY, COGNIZANT HOUSE AND SENATE COMMITTEES
REJECTED A PROPOSAL OF THE DEPARTMENT OF STATE THAT CONTAINED A
REQUIREMENT THAT A REFUGEE ALIEN MUST BE ONE WHO "HAS NOT BEEN FIRMLY
RESETTLED . . . ."  S. REP. NO. 1651, 86TH CONG., 2D SESS., 19; H.R.
REP. NO. 1433, 86TH CONG., 2D SESS., 12.  SENATOR KENNEDY, WHO, AS
CHAIRMAN OF THE SUBCOMMITTEE ON IMMIGRATION AND NATURALIZATION OF THE
SENATE JUDICIARY COMMITTEE, PRESIDED OVER SENATE HEARINGS ON THE
PRESENT SEC. 203(A)(7), STATED THAT REFUGEES "(AS DEFINED IN THIS BILL"
"MUST BE CURRENTLY SETTLED IN COUNTRIES OTHER THAN THEIR HOMELANDS." 
111 CONG.REC.  24227.  THIS STATEMENT IS FLATLY INCONSISTENT WITH THE
PROPOSITION THAT THE PERSONS DESCRIBED IN SEC. 203(A)(7) CANNOT HAVE
RESETTLED IN ANOTHER COUNTRY FOLLOWING THEIR ORIGINAL FLIGHT. 

IN THE FACE OF THE UNAMBIGUOUS LANGUAGE OF SEC. 203(A)(7) AND THIS
CLEAR LEGISLATIVE HISTORY, THE COURT TODAY HOLDS THAT A REQUIREMENT OF
FIRM RESETTLEMENT MAY PROPERLY BE READ BACK INTO THE STATUTE SO AS NOT
TO SUBVERT WHAT IT CONSIDERS TO BE THE "CENTRAL THEME" OF REFUGEE
LEGISLATION-- "THE CREATION OF A HAVEN FOR THE WORLD'S HOMELESS
PEOPLE."  I HAVE NO DOUBT THAT IN ENACTING REFUGEE LEGISLATION CONGRESS
INTENDED TO PROVIDE A HAVEN FOR THE HOMELESS.  BUT THE COURT OFFERS NO
REASON TO BELIEVE THAT CONGRESS DID NOT ALSO INTEND TO HELP THOSE
OTHERS WHO HAVE FLED THEIR HOMELAND BECAUSE OF OPPRESSION, HAVE FOUND A
TEMPORARY REFUGE ELSEWHERE, AND NOW DESIRE TO IMMIGRATE TO THE UNITED
STATES.  CONGRESS MAY WELL HAVE CONCLUDED THAT SUCH PEOPLE SHOULD BE
PREFERRED TO IMMIGRANTS WHO HAVE NOT SUFFERED SUCH HARDSHIP.  THE CLEAR
LANGUAGE OF SEC. 203(A)(7) DEMONSTRATES TO ME THAT THIS WAS EXACTLY
WHAT CONGRESS INTENDED TO ACCOMPLISH. 

WHETHER THE ATTORNEY GENERAL HAS DISCRETION CONCERNING THE ORDER IN
WHICH SEC. 203(A)(7) APPLICATIONS ARE PROCESSED IS A DIFFERENT ISSUE
AND ONE THAT IS NOT BEFORE US.  THE ATTORNEY GENERAL HAS NOT SOUGHT TO
INVOKE WHATEVER DISCRETION HE MAY HAVE TO PROCESS THE APPLICATIONS OF
THE HOMELESS BEFORE TURNING TO THOSE WHOSE PLIGHT MAY BE THOUGHT LESS
PRESSING.  /1/  INDEED IT APPEARS THAT IN MANY YEARS A NUMBER OF THE
VISAS ANNUALLY AVAILABLE FOR SEC. 203(A)(7) APPLICANTS HAVE GONE
UNUSED.  /2/ 

THE ONLY ISSUE BEFORE THE COURT IS WHETHER A REFUGEE IS TOTALLY
BARRED FROM ANY CONSIDERATION UNDER SEC. 203(A)(7) BY VIRTUE OF
RESETTLEMENT FOLLOWING FLIGHT.  IN VIEW OF THE LANGUAGE OF THE STATUTE
AND ITS LEGISLATIVE HISTORY, I CANNOT BUT CONCLUDE THAT UNDER SEC.
203(A)(7) THE RESPONDENT WAS ELIGIBLE FOR THE ADJUSTMENT OF STATUS THAT
HE SOUGHT. 

FOR THESE REASONS I DISSENT. 

/1/  SECTION 203(C), 8 U.S.C. 1153(C) (1964 ED., SUPP. V), WHICH
PROVIDES THAT VISAS SHALL BE ISSUED TO ELIGIBLE IMMIGRANTS IN THE ORDER
IN WHICH A PETITION IN BEHALF OF EACH SUCH IMMIGRANT IS FILED WITH THE
ATTORNEY GENERAL, DOES NOT BY ITS TERMS APPLY TO VISAS ISSUED PURSUANT
TO SEC. 203(A)(7).  AND SENATOR KENNEDY STATED THAT UNDER SEC.
203(A)(7) "THE CASES OF GREATEST NEED CAN BE PROCESSED AT ONCE."  111
CONG. REC. 24227. 

/2/  1969 ANNUAL REPORT, IMMIGRATION AND NATURALIZATION SERVICE 38. 

CHARLES GORDON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, JEROME M. FEIT, BEATRICE ROSENBERG, PAUL C. SUMMITT, AND GEORGE
W. MASTERTON. 

GORDON G. DALE ARGUED THE CAUSES AND FILED A BRIEF FOR RESPONDENT. 
..END :

















UNITED STATES V. VUITCH, 402 U.S. 62 


       UNITED STATES V. VUITCH

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA

        NO. 84.  ARGUED JANUARY 12, 1971-- DECIDED APRIL 21, 1971 


APPELLEE PHYSICIAN'S INDICTMENTS FOR PRODUCTING AND ATTEMPTING TO
PRODUCE ABORTIONS IN VIOLATION OF D.C. CODE SEC. 22-201 WAS DISMISSED
BY THE DISTRICT COURT ON THE GROUND OF UNCONSTITUTIONAL VAGUENESS. 
THAT COURT HELD THAT THE WORD "HEALTH" WAS OVERLY VAGUE, AND, RELYING
ON WILLIAMS V. UNITED STATES, 78 U.S.APP.D.C. 147, 138 F.2D 81, HELD
THAT ONCE AN ABORTION IS PROVED, THE BURDEN IS ON THE DOCTOR TO
PERSUADE THE JURY THAT IT WAS NECESSARY TO PRESERVE THE MOTHER'S LIFE
OR HEALTH.  THE GOVERNMENT APPEALED TO THIS COURT UNDER THE CRIMINAL
APPEALS ACT, 18 U.S.C. 3731.  HELD: 

1.  ALTHOUGH THE ABORTION STATUTE APPLIES ONLY TO THE DISTRICT OF
COLUMBIA, THIS COURT HAS JURISDICTION OF THE APPEAL UNDER SEC. 3731,
WHICH PROVIDES FOR DIRECT APPEALS FROM DISTRICT COURT JUDGMENTS "IN ALL
CRIMINAL CASES . . . DISMISSING ANY INDICTMENT WHERE SUCH DECISION IS
BASED UPON THE INVALIDITY . . . OF THE STATUTE UPON WHICH THE
INDICTMENT . . . IS FOUNDED."  ONCE THE APPEAL IS PROPERLY HERE, THIS
COURT SHOULD NOT REFUSE TO CONSIDER IT BECAUSE IT MIGHT HAVE BEEN TAKEN
TO THE COURT OF APPEALS.  PP. 64-67. 

2.  THE STATUTE IS NOT UNCONSTITUTIONALLY VAGUE.  PP. 67-73. 

(A) UNDER SEC. 22-201 THE BURDEN IS ON THE PROSECUTION TO PLEAD AND
PROVE THAT AN ABORTION WAS NOT "NECESSARY FOR THE PRESERVATION OF THE
MOTHER'S LIFE OR HEALTH."  PP. 69-71. 

(B) THE WORD "HEALTH" IN THE STATUTE, IN ACCORD WITH GENERAL USUAGE
AND MODERN UNDERSTANDING, AND A RECENT INTERPRETATION OF SEC. 22-201 BY
THE FEDERAL COURTS, INCLUDES PSYCHOLOGICAL AS WELL AS PHYSICAL WELL
BEING, AND AS THUS CONSTRUED IS NOT OVERLY VAGUE.  PP. 71-72. 

305 F.SUPP.  1032, REVERSED AND REMANDED. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN PART I OF WHICH
BURGER, C.J., AND DOUGLAS, STEWART, AND WHITE, JJ., JOINED, AND IN PART
II OF WHICH BURGER, C.J., AND HARLAN, AND WHITE, AND BLACKMUN, JJ.,
JOINED.  WHITE, J., FILED A CONCURRING OPINION, POST, P. 73.  DOUGLAS,
J., FILED AN OPINION DISSENTING IN PART, POST, P. 74.  HARLAN, J.,
FILED AN OPINION DISSENTING AS TO JURISDICTION, IN WHICH BRENNAN,
MARSHALL, AND BLACKMUN, JJ., JOINED, POST, P. 81.  STEWART, J., FILED
AN OPINION DISSENTING IN PART, POST, P. 96.  BLACKMUN, J., FILED A
SEPARATE OPINION, POST, P. 97. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.  /0/ 

APPELLEE MILAN VUITCH, A LICENSED PHYSICIAN, WAS INDICTED IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR PRODUCING
AND ATTEMPTING TO PRODUCE ABORTIONS IN VIOLATION OF D.C. CODE ANN. SEC.
22-201 (1967).  BEFORE TRIAL, THE DISTRICT JUDGE GRANTED VUITCH'S
MOTION TO DISMISS THE INDICTMENTS ON THE GROUND THAT THE DISTRICT OF
COLUMBIA ABORTION LAW WAS UNCONSTITUTIONALLY VAGUE.  305 F.SUPP.  1032
(DC 1969).  THE UNITED STATES APPEALED TO THIS COURT UNDER THE CRIMINAL
APPEALS ACT, 18 U.S.C. 3731.  WE POSTPONED DECISION ON JURISDICTION TO
THE HEARING ON THE MERITS, 397 U.S. 1061, AND REQUESTED THE PARTIES TO
BRIEF AND ARGUE SPECIFIED QUESTIONS ON THAT ISSUE.  399 U.S. 923.  WE
HOLD THAT WE HAVE JURISDICTION AND THAT THE STATUTE IS NOT
UNCONSTITUTIONALLY VAGUE.  WE REVERSE. 

        I 

THE FIRST QUESTION IS WHETHER WE HAVE JURISDICTION UNDER THE
CRIMINAL APPEALS ACT TO ENTERTAIN THIS DIRECT APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  THAT ACT /1/
GIVES US JURISDICTION OVER DIRECT APPEALS FROM DISTRICT COURT JUDGMENTS
"IN ALL CRIMINAL CASES . . . DISMISSING ANY INDICTMENT . . . WHERE SUCH
DECISION . . . IS BASED UPON THE INVALIDITY . . . OF THE STATUTE UPON
WHICH THE INDICTMENT . . . IS FOUNDED."  18 U.S.C. 3731.  THE DECISION
APPEALED FROM IS A DISMISSAL OF INDICTMENTS ON THE GROUND THAT THE
DISTRICT OF COLUMBIA ABORTION LAW, ON WHICH THE INDICTMENTS WERE BASED,
IS UNCONSTITUTIONALLY VAGUE.  THIS ABORTION STATUTE, D.C. CODE ANN.
SEC. 22-201, IS AN ACT OF CONGRESS APPLICABLE ONLY IN THE DISTRICT OF
COLUMBIA AND WE SUGGESTED THAT THE PARTIES ARGUE WHETHER A DECISION
HOLDING UNCONSTITUTIONAL SUCH A STATUTE IS APPEALABLE DIRECTLY TO THIS
COURT UNDER THE CRIMINAL APPEALS ACT.  THE LITERAL WORDING OF THE ACT
PLAINLY INCLUDES THIS STATUTE, EVEN THOUGH IT APPLIES ONLY TO THE
DISTRICT.  A PIECE OF LEGISLATION SO LIMITED IS NEVERTHELESS A
"STATUTE" IN THE SENSE THAT IT WAS DULY ENACTED INTO LAW BY BOTH HOUSES
OF CONGRESS AND WAS SIGNED BY THE PRESIDENT.  AND THE CRIMINAL APPEALS
ACT CONTAINS NO LANGUAGE THAT PURPORTS TO LIMIT OR QUALIFY THE TERM
"STATUTE."  ON THE CONTRARY, THE ACT AUTHORIZES GOVERNMENT APPEALS FROM
DISTRICT COURTS TO THE SUPREME COURT IN "ALL CRIMINAL CASES" WHERE A
DISTRICT COURT JUDGMENT DISMISSING AN INDICTMENT IS BASED UPON THE
INVALIDITY OF THE STATUTE ON WHICH THE INDICTMENT IS FOUNDED. 

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE CRIMINAL APPEALS
ACT AND ITS AMENDMENTS SUGGESTS NO REASON WHY WE SHOULD DEPART FROM THE
ACT'S LITERAL MEANING AND EXCLUDE DISTRICT OF COLUMBIA (HEREAFTER
SOMETIMES D.C.)  STATUTES FROM ITS COVERAGE.  THE COMMITTEE REPORTS AND
FLOOR DEBATES CONTAIN NO DISCUSSION INDICATING THAT THE TERM "STATUTE"
DOES NOT INCLUDE STATUTES APPLICABLE ONLY TO THE DISTRICT OF COLUMBIA. 
/2/  WE THEREFORE CONCLUDE THAT WE HAVE JURISDICTION OVER THIS APPEAL
UNDER THE CRIMINAL APPEALS ACT. 

OUR BROTHER HARLAN HAS ARGUED IN DISSENT THAT WE DO NOT HAVE
JURISDICTION OVER THIS DIRECT APPEAL.  HE SUGGESTS THAT SUCH A RESULT
IS SUPPORTED BY THE DECISION IN UNITED STATES V. BURROUGHS, 289 U.S.
159 (1933), THE POLICY UNDERLYING THE CRIMINAL APPEALS ACT, AND THE
CANON OF CONSTRUCTION THAT STATUTES GOVERNING DIRECT APPEALS TO THIS
COURT SHOULD BE STRICTLY CONSTRUED. 

IT IS DIFFICULT TO SEE HOW THE BURROUGHS DECISION LENDS MUCH FORCE
TO HIS ARGUMENT, SINCE THAT CASE HELD ONLY THAT THE TERM "DISTRICT
COURT" IN THE CRIMINAL APPEALS ACT DID NOT INCLUDE THE THEN-EXISTING
SUPREME COURT OF THE DISTRICT OF COLUMBIA.  ID., AT 163-164.  THE
DISSENT GOES ON TO SUGGEST THE ACT SHOULD BE CONSTRUED IN LIGHT OF THE
CONGRESSIONAL PURPOSE OF AVOIDING "INCONSISTENT ENFORCEMENT OF CRIMINAL
LAWS."  POST, AT 92.  THIS PURPOSE WOULD NOT BE SERVED BY OUR REFUSING
TO DECIDE THIS CASE NOW AFTER IT HAS BEEN ORALLY ARGUED.  IN THE LAST
SEVERAL YEARS, ABORTION LAWS HAVE BEEN REPEATEDLY ATTACKED AS
UNCONSTITUTIONALLY VAGUE IN BOTH STATE AND FEDERAL COURTS WITH WIDELY
VARYING RESULTS.  A NUMBER OF THESE CASES ARE NOW PENDING ON OUR
DOCKET.  A REFUSAL TO ACCEPT JURISDICTION HERE WOULD ONLY COMPOUND
CONFUSION FOR DOCTORS, THEIR PATIENTS, AND LAW ENFORCEMENT OFFICIALS. 
AS THIS CASE MAKES ABUNDANTLY CLEAR, A RULING ON THE VALIDITY OF A
STATUTE APPLICABLE ONLY TO THE DISTRICT CAN CONTRIBUTE TO GREAT
DISPARITIES AND CONFUSION IN THE ENFORCEMENT OF CRIMINAL LAWS. 
FINALLY, MY BROTHER HARLAN'S DISSENT ALSO APPEARS TO RELY ON THE FACT
THAT THIS COURT HAS NEVER ACCEPTED JURISDICTION OVER A DIRECT APPEAL
UNDER THE CRIMINAL APPEALS ACT INVOLVING THE VALIDITY OF A DISTRICT OF
COLUMBIA STATUTE.  POST, AT 93.  SINCE THIS COURT HAS NEVER EITHER
ACCEPTED OR REJECTED JURISDICTION OF SUCH AN APPEAL, IT IS DIFFICULT TO
SEE HOW THE COMPLETE ABSENCE OF PRECEDENT IN THIS COURT LENDS ANY
WEIGHT WHATEVER TO HIS ARGUMENT.  NEITHER PREVIOUS CASES NOR THE
PURPOSE BEHIND THE CRIMINAL APPEALS ACT PROVIDES ANY SATISFACTORY
REASON WHY THE TERM "STATUTE" SHOULD NOT INCLUDE THOSE STATUTES
APPLICABLE ONLY IN THE DISTRICT OF COLUMBIA. 

ONE OTHER PROCEDURAL PROBLEM REMAINS.  WE ASKED THE PARTIES TO BRIEF
THE QUESTION WHETHER THE GOVERNMENT COULD HAVE APPEALED THIS CASE TO
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT UNDER D.C.
CODE ANN. SEC. 23-105 (SUPP. 1970), AND, IF SO, WHETHER WE SHOULD
REFUSE TO ENTERTAIN THE APPEAL HERE AS A MATTER OF SOUND JUDICIAL
ADMINISTRATION.  THAT D.C. CODE PROVISION STATES: 

     "IN ALL CRIMINAL PROSECUTIONS THE UNITED STATES . . . SHALL

  HAVE THE SAME RIGHT OF APPEAL THAT IS GIVEN TO THE DEFENDANT . .

  . ." 

THE RELATIONSHIP BETWEEN THE CRIMINAL APPEALS ACT AND THIS CODE SECTION
WAS CONSIDERED IN CARROLL V. UNITED STATES, 354 U.S. 394, 411 (1957),
WHERE THE COURT CONCLUDED: 

"(CRIMINAL APPEALS BY THE GOVERNMENT IN THE DISTRICT OF COLUMBIA ARE
NOT LIMITED TO THE CATEGORIES SET FORTH IN 18 U.S.C. 3731 (THE CRIMINAL
APPEALS ACT), ALTHOUGH AS TO CASES OF THE TYPE COVERED BY THAT SPECIAL
JURISDICTIONAL STATUTE, ITS EXPLICIT DIRECTIONS WILL PREVAIL OVER THE
GENERAL TERMS OF (D.C. CODE ANN. SEC. 23-105 (SUPP. 1970)."  SINCE WE
HAVE CONCLUDED ABOVE THAT THIS APPEAL IS COVERED BY THE CRIMINAL
APPEALS ACT, IT WOULD SEEM TO FOLLOW FROM CARROLL THAT THE ACT'S
PROVISIONS CONTROL AND NO APPEAL COULD HAVE BEEN TAKEN TO THE COURT OF
APPEALS.  ALTHOUGH CARROLL SEEMS TO BE DISPOSITIVE, IT HAS BEEN
SUGGESTED THAT IT MAY NOW BE LIMITED BY UNITED STATES V. SWEET, 399
U.S. 517 (1970), WHICH CONTAINS SOME LANGUAGE SUGGESTING THAT THE
GOVERNMENT MAY BE EMPOWERED TO TAKE AN APPEAL TO THE COURT OF APPEALS
UNDER SEC. 23-105 EVEN WHEN A DIRECT APPEAL WOULD BE PROPER HERE UNDER
THE CRIMINAL APPEALS ACT.  ID., AT 518.  WE DO NOT ELABORATE UPON THAT
SUGGESTION.  WE ONLY HOLD THAT ONCE AN APPEAL IS PROPERLY HERE UNDER
THE CRIMINAL APPEALS ACT, WE SHOULD NOT REFUSE TO CONSIDER IT BECAUSE
IT MIGHT HAVE BEEN TAKEN TO ANOTHER COURT. 

II 

WE TURN NOW TO THE MERITS.  APPELLEE MILAN VUITCH WAS INDICTED FOR
PRODUCING AND ATTEMPTING TO PRODUCE ABORTIONS IN VIOLATION OF D.C. CODE
ANN. SEC. 22-201.  THAT ACT PROVIDES IN PART: 

     "WHOEVER, BY MEANS OF ANY INSTRUMENT, MEDICINE, DRUG OR OTHER

  MEANS WHATEVER, PROCURES OR PRODUCES, OR ATTEMPTS TO PROCURE OR

  PRODUCE AN ABORTION OR MISCARRIAGE ON ANY WOMAN, UNLESS THE SAME

  WERE DONE AS NECESSARY FOR THE PRESERVATION OF THE MOTHER'S LIFE

  OR HEALTH AND UNDER THE DIRECTION OF A COMPETENT LICENSES

  PRACTITIONER OF MEDICINE, SHALL BE IMPRISONED IN THE PENITENTIARY

  NOT LESS THAN ONE YEAR OR NOT MORE THAN TEN YEARS . . . ." 

WITHOUT WAITING FOR TRIAL, THE DISTRICT JUDGE DISMISSED THE INDICTMENTS
ON THE GROUND THAT THE ABORTION STATUTE WAS UNCONSTITUTIONALLY VAGUE. 
IN HIS VIEW, SET OUT SUBSTANTIALLY IN FULL BELOW, /3/  THE STATUTE WAS
VAGUE FOR TWO PRINCIPAL REASONS: 

1. THE FACT THAT ONCE AN ABORTION WAS PROVED A PHYSICIAN "IS
PRESUMED GUILTY AND REMAINS SO UNLESS A JURY CAN BE PERSUADED THAT HIS
ACTS WERE NECESSARY FOR THE PRESERVATION OF THE WOMAN'S LIFE OF
HEALTH." 

2.  THE PRESENCE OF THE "AMBIVALENT AND UNCERTAIN WORD 'HEALTH.'" 

IN CONCLUDING THAT THE STATUTE PLACES THE BURDEN OF PERSUASION ON
THE DEFENDANT ONCE THE FACT OF AN ABORTION HAS BEEN PROVED, /4/  THE
COURT RELIED ON WILLIAMS V. UNITED STATES, 78 U.S.APP.D.C. 147, 138
F.2D 81 (1943).  THERE THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT HELD THAT THE PROSECUTION WAS NOT REQUIRED TO PROVE AS
PART OF ITS CASE IN CHIEF THAT THE OPERATION WAS NOT NECESSARY TO
PRESERVE LIFE OR HEALTH.  ID., AT 147, 149, 138 F.2D, AT 81, 83.  THE
COURT INDICATED THAT ONCE THE PROSECUTION ESTABLISHED THAT AN ABORTION
HAD BEEN PERFORMED THE DEFENDANT WAS REQUIRED "TO COME FORWARD WITH
EVIDENCE WHICH WITH OR WITHOUT OTHER EVIDENCE IS SUFFICIENT TO CREATE A
REASONABLE DOUBT OF GUILT."  ID., AT 150, 138 F.2D, AT 84.  THE
DISTRICT COURT HERE APPEARS TO HAVE READ WILLIAMS AS HOLDING THAT ONCE
AN ABORTION IS PROVED, THE BURDEN OF PERSUADING THE JURY THAT IT WAS
LEGAL (I.E., NECESSARY TO THE PRESERVATION OF THE OF THE MOTHER'S LIFE
OR HEALTH) IS CAST UPON THE PHYSICIAN.  WHETHER OR NOT THIS IS A
CORRECT READING OF WILLIAMS, WE BELIEVE IT IS AN ERRONEOUS
INTERPRETATION OF THE STATUTE.  CERTAINLY A STATUTE THAT OUTLAWED ONLY
A LIMITED CATEGORY OF ABORTIONS BUT "PRESUMED" GUILT WHENEVER THE MERE
FACT OF ABORTION WAS ESTABLISHED, WOULD AT THE VERY LEAST PRESENT
SERIOUS CONSTITUTIONAL PROBLEMS UNDER THIS COURT'S PREVIOUS DECISIONS
INTERPRETING THE FIFTH AMENDMENT.  TOT V. UNITED STATES, 319 U.S. 463
(1943); LEARY V. UNITED STATES, 395 U.S. 6, 36 (1969).  BUT OF COURSE
STATUTES SHOULD BE CONSTRUED WHENEVER POSSIBLE SO AS TO UPHOLD THEIR
CONSTITUTIONALITY. 

THE STATUTE DOES NOT OUTLAW ALL ABORTIONS, BUT ONLY THOSE WHICH ARE
NOT PERFORMED UNDER THE DIRECTION OF A COMPETENT, LICENSED PHYSICIAN,
AND THOSE NOT NECESSARY TO PRESERVE THE MOTHER'S LIFE OR HEALTH.  IT IS
A GENERAL GUIDE TO THE INTERPRETATION OF CRIMINAL STATUTES THAT WHEN AN
EXCEPTION IS INCORPORATED IN THE ENACTING CLAUSE OF A STATUTE, THE
BURDEN IS ON THE PROSECUTION TO PLEAD AND PROVE THAT THE DEFENDANT IS
NOT WITHIN THE EXCEPTION.  WHEN CONGRESS PASSED THE DISTRICT OF
COLUMBIA ABORTION LAW IN 1901 AND AMENDED IT IN 1953, IT EXPRESSLY
AUTHORIZED PHYSICIANS TO PERFORM SUCH ABORTIONS AS ARE NECESSARY TO
PRESERVE THE MOTHER'S "LIFE OR HEALTH."  BECAUSE ABORTIONS WERE
AUTHORIZED ONLY IN MORE RESTRICTIVE CIRCUMSTANCES UNDER PREVIOUS D.C.
LAW, THE CHANGE MUST REPRESENT A JUDGMENT BY CONGRESS THAT IT IS
DESIRABLE THAT WOMEN BE ABLE TO OBTAIN ABORTIONS NEEDED FOR THE
PRESERVATION OF THEIR LIVES OR HEALTH.  /5/  IT WOULD BE HIGHLY
ANOMALOUS FOR A LEGISLATURE TO AUTHORIZE ABORTIONS NECESSARY FOR LIFE
OR HEALTH AND THEN TO DEMAND THAT A DOCTOR, UPON PAIN OF ONE TO TEN
YEARS' IMPRISONMENT, BEAR THE BURDEN OF PROVING THAT AN ABORTION HE
PERFORMED FELL WITHIN THAT CATEGORY.  PLACING SUCH A BURDEN OF PROOF ON
A DOCTOR WOULD BE PECULIARLY INCONSISTENT WITH SOCIETY'S NOTIONS OF THE
RESPONSIBILITIES OF THE MEDICAL PROFESSION.  GENERALLY, DOCTORS ARE
ENCOURAGED BY SOCIETY'S EXPECTATIONS, BY THE STRICTURES OF MALPRACTICE
LAW AND BY THEIR OWN PROFESSIONAL STANDARDS TO GIVE THEIR PATIENTS SUCH
TREATMENT AS IS NECESSARY TO PRESERVE THEIR HEALTH.  WE ARE UNABLE TO
BELIEVE THAT CONGRESS INTENDED THAT A PHYSICIAN BE REQUIRED TO PROVE
HIS INNOCENCE.  WE THEREFORE HOLD THAT UNDER D.C. CODE ANN. SEC. 22
201, THE BURDEN IS ON THE PROSECUTION TO PLEAD AND PROVE THAT AN
ABORTION WAS NOT "NECESSARY FOR THE PRESERVATION OF THE MOTHER'S LIFE
OR HEALTH." 

THERE REMAINS THE CONTENTION THAT THE WORD "HEALTH" IS SO IMPRECISE
AND HAS SO UNCERTAIN A MEANING THAT IT FAILS TO INFORM A DEFENDANT OF
THE CHARGE AGAINST HIM AND THEREFORE THE STATUTE OFFENDS THE DUE
PROCESS CLAUSE OF THE CONSTITUTION.  SEE, E.G., LANZETTA V. NEW JERSEY,
306 U.S. 451 (1939).  WE HOLD THAT IT DOES NOT.  THE TRIAL COURT
APPARENTLY FELT THAT THE TERM WAS VAGUE BECAUSE THERE "IS NO INDICATION
WHETHER IT INCLUDES VARYING DEGREES OF MENTAL AS WELL AS PHYSICAL
HEALTH."  305 F.SUPP.,AT 1034.  IT IS TRUE THAT THE LEGISLATIVE HISTORY
OF THE STATUTE GIVES NO GUIDANCE AS TO WHETHER "HEALTH" REFERS TO BOTH
A PATIENT'S MENTAL AND PHYSICAL STATE.  THE TERM "HEALTH" WAS
INTRODUCED INTO THE LAW IN 1901 WHEN THE STATUTE WAS ENACTED IN
SUBSTANTIALLY ITS PRESENT FORM.  THE HOUSE REPORT /6/  ON THE BILL
CONTAINS NO DISCUSSION OF THE TERM "HEALTH" AND THERE WAS NO SENATE
REPORT.  NOR HAVE WE FOUND ANY DISTRICT OF COLUMBIA CASES PRIOR TO THIS
DISTRICT COURT DECISION THAT SHED ANY LIGHT ON THE QUESTION.  SINCE
THAT DECISION, HOWEVER, THE ISSUE HAS BEEN CONSIDERED IN DOE V. GENERAL
HOSPITAL OF THE DISTRICT OF COLUMBIA, 313 F.SUPP.  1170 (DC 1970). 
THERE DISTRICT JUDGE WADDY CONSTRUED THE STATUTE TO PERMIT ABORTIONS
"FOR MENTAL HEALTH REASONS WHETHER OR NOT THE PATIENT HAD A PREVIOUS
HISTORY OF MENTAL DEFECTS."  ID., AT 1174-1175.  THE SAME CONSTRUCTION
WAS FOLLOWED BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT IN FURTHER PROCEEDINGS IN THE SAME CASE.  140
U.S.APP.D.C. 149 AND 153, 434 F.2D 423 AND 427 (1970).  WE SEE NO
REASON WHY THIS INTERPRETATION OF THE STATUTE SHOULD NOT BE FOLLOWED. 
CERTAINLY THIS CONSTRUCTION ACCORDS WITH THE GENERAL USAGE AND MODERN
UNDERSTANDING OF THE WORD "HEALTH,"  WHICH INCLUDES PSYCHOLOGICAL AS
WELL AS PHYSICAL WELL-BEING.  INDEED WEBSTER'S DICTIONARY, IN ACCORD
WITH THAT COMMON USAGE, PROPERLY DEFINES HEALTH AS THE "(STATE OF BEING
. . . SOUND IN BODY (OR) MIND."  VIEWED IN THIS LIGHT, THE TERM
"HEALTH" PRESENTS NO PROBLEM OF VAGUENESS.  INDEED, WHETHER A
PARTICULAR OPERATION IS NECESSARY FOR A PATIENT'S PHYSICAL OR MENTAL
HEALTH IS A JUDGMENT THAT PHYSICIANS ARE OBVIOUSLY CALLED UPON TO MAKE
ROUTINELY WHENEVER SURGERY IS CONSIDERED.     WE THEREFORE HOLD THAT
PROPERLY CONSTRUED THE DISTRICT OF COLUMBIA ABORTION LAW IS NOT
UNCONSTITUTIONALLY VAGUE, AND THAT THE TRIAL COURT ERRED IN DISMISSING
THE INDICTMENTS ON THAT GROUND.  APPELLEE HAS SUGGESTED THAT THERE ARE
OTHER REASONS WHY THE DISMISSAL OF THE INDICTMENTS SHOULD BE AFFIRMED. 
ESSENTIALLY, THESE ARGUMENTS ARE BASED ON THIS COURT'S DECISION IN
GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965).  ALTHOUGH THERE WAS SOME
REFERENCE TO THESE ARGUMENTS IN THE OPINION OF THE COURT BELOW, WE READ
IT AS HOLDING SIMPLY THAT THE STATUTE WAS VOID FOR VAGUENESS BECAUSE IT
FAILED IN THAT COURT'S LANGUAGE TO "GIVE THAT CERTAINTY WHICH DUE
PROCESS OF LAW CONSIDERS ESSENTIAL IN A CRIMINAL STATUTE."  305
F.SUPP.,AT 1034.  SINCE THAT QUESTION OF VAGUENESS WAS THE ONLY ISSUE
PASSED UPON BY THE DISTRICT COURT IT IS THE ONLY ISSUE WE REACH HERE. 
UNITED STATES V. BORDEN CO., 308 U.S. 188 (1939); UNITED STATES V.
PETRILLO, 332 U.S. 1 (1947); UNITED STATES V. BLUE, 384 U.S. 251, 256
(1966). 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              REVERSED. 

/0/  THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, MR. JUSTICE STEWART,
AND MR. JUSTICE WHITE JOIN IN PART I OF THIS OPINION.  THE CHIEF
JUSTICE, MR. JUSTICE HARLAN, MR. JUSTICE WHITE, AND MR. JUSTICE
BLACKMUN JOIN IN PART II OF THIS OPINION. 

/1/  THE ACT STATES IN PERTINENT PART: 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED STATES IN
ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES: 

"FROM A DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING ANY
INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF, WHERE SUCH DECISION OR
JUDGMENT IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED."  18 U.S.C. 3731. 

/2/  SEE H.R. CONF. REP. NO. 8113, 59TH CONG., 2D SESS.; H.R. REP.
NO. 2119, 59TH CONG., 1ST SESS.; H.R. REP. NO. 45 AND S. REP. NO. 868,
77TH CONG., 1ST SESS.; H.R. CONF. REP. NO. 2052, 77TH CONG., 2D SESS. 

/3/  THE DISTRICT JUDGE STATED: 

"IT IS SUGGESTED THAT THESE WORDS ('AS NECESSARY FOR THE
PRESERVATION OF THE MOTHER'S LIFE OR HEALTH') ARE NOT PRECISE; THAT, AS
INTERPRETED, THEY IMPROPERLY LIMIT THE PHYSICIAN IN CARRYING OUT HIS
PROFESSIONAL RESPONSIBILITIES; AND THAT THEY INTERFERE WITH A WOMAN'S
RIGHT TO AVOID CHILDBIRTH FOR ANY REASON.  THE WORD 'HEALTH' IS NOT
DEFINED AND IN FACT REMAINS SO VAGUE IN ITS INTERPRETATION AND THE
PRACTICE UNDER THE ACT THAT THERE IS NO INDICATION WHETHER IT INCLUDES
VARYING DEGREES OF MENTAL AS WELL AS PHYSICAL HEALTH.  WHILE THE LAW
GENERALLY HAS BEEN CAREFUL NOT TO INTERFERE WITH MEDICAL JUDGMENT OF
COMPETENT PHYSICIANS IN TREATMENT OF INDIVIDUAL PATIENTS, THE PHYSICIAN
IN THIS INSTANCE IS PLACED IN A PARTICULARLY UNCONSCIONABLE POSITION
UNDER THE CONFLICTING AND INADEQUATE INTERPRETATIONS OF THE D.C.
ABORTION STATUTE NOW PREVAILING.  THE COURT OF APPEALS ESTABLISHED BY
SUCH EARLY CASES AS PECKHAM V. UNITED STATES, 96 U.S.APP.D.C. 312, 226
F.2D 34 (1955), CERT. DENIED 350 U.S. 912, 76 S.CT. 195, 100 L.ED. 800,
AND WILLIAMS V. UNITED STATES, 78 U.S.APP.D.C. 147, 138 F.2D 81153
A.L.R. 1213 (1943), THAT UPON THE GOVERNMENT ESTABLISHING THAT A
PHYSICIAN COMMITTED AN ABORTION, THE BURDEN SHIFTED TO THE PHYSICIAN TO
JUSTIFY HIS ACTS.  IN OTHER WORDS, HE IS PRESUMED GUILTY AND REMAINS SO
UNLESS A JURY CAN BE PERSUADED THAT HIS ACTS WERE NECESSARY FOR THE
PRESERVATION OF THE WOMAN'S LIFE OR HEALTH.  THESE HOLDINGS, WHICH MAY
WELL OFFEND THE FIFTH AMENDMENT OF THE CONSTITUTION INTERPRETED IN
RECENT DECISIONS SUCH AS LEARY V. UNITED STATES, 395 U.S. 6 89 S.CT.
1532, 23 L.ED. 2D 57 (1969), AND UNITED STATES V. GAINEY, 380 U.S 63,
85 S.CT. 754, 13 L.ED. 2D 658 (1965), ALSO EMPHASIZES THE LACK OF
NECESSARY PRECISION IN THIS CRIMINAL STATUTE.  THE JURY'S ACCEPTANCE OR
NONACCEPTANCE OF AN INDIVIDUAL DOCTOR'S INTERPRETATION OF THE
AMBIVALENT AND UNCERTAIN WORD 'HEALTH' SHOULD NOT DETERMINE WHETHER HE
STANDS CONVICTED OF A FELONY, FACING TEN YEARS' IMPRISONMENT.  HIS
PROFESSIONAL JUDGMENT MADE IN GOOD FAITH SHOULD NOT BE CHALLENGED. 
THERE IS NO CLEAR STANDARD TO GUIDE EITHER THE DOCTOR, THE JURY OR THE
COURT.  NO BODY OF MEDICAL KNOWLEDGE DELINEATES WHAT DEGREE OF MENTAL
OR PHYSICAL HEALTH OR COMBINATION OF THE TWO IS REQUIRED TO MAKE AN
ABORTION CONDUCTED BY A COMPETENT PHYSICIAN LEGAL OR ILLEGAL UNDER THE
CODE . . . ."  305 F.SUPP.  1032, 1034. 

/4/  THE TRIAL COURT ALSO CITED PECKHAM V. UNITED STATES, 96
U.S.APP.D.C. 312, 226 F.2D 34 (1955), AS DEALING WITH THE D.C. ABORTION
LAW.  HOWEVER, THE OPINION IN THAT CASE DOES NOT DISCUSS THE BURDEN OF
PROOF UNDER THE STATUTE. 

/5/  BEFORE 1901 THE EXISTING STATUTE ALLOWED ABORTION ONLY "FOR THE
PURPOSE OF PRESERVING THE LIFE OF ANY WOMAN PREGNANT . . . ."  W.
ALBERT & B. LOVEJOY, THE COMPILED STATUTES IN FROCE IN THE DISTRICT OF
COLUMBIA, C. XVI, SEC. 15, P. 159 (1894). 

/6/  H.R. REP. NO. 1017, 56TH CONG., 1ST SESS. 

/7/  OUR BROTHER DOUGLAS APPEARS TO FEAR THAT JURIES MIGHT CONVICT
DOCTORS IN ANY ABORTION CASE SIMPLY BECAUSE SOME JURORS BELIEVE ALL
ABORTIONS ARE EVIL.  OF COURSE SUCH A DANGER EXISTS IN ALL CRIMINAL
CASES, NOT MERELY THOSE INVOLVING ABORTIONS.  BUT THERE ARE WELL
ESTABLISHED METHODS DEFENDANTS MAY USE TO PROTECT THEMSELVES AGAINST
SUCH JURY PREJUDICE:  CONTINUANCES, CHANGES OF VENUE, CHALLENGES TO
PROSPECTIVE JURORS ON VOIR DIRE, AND MOTIONS TO SET ASIDE VERDICTS
WHICH MAY HAVE BEEN PRODUCED BY PREJUDICE.  AND OF COURSE A COURT
SHOULD ALWAYS SET ASIDE A JURY VERDICT OF GUILT WHEN THERE IS NOT
EVIDENCE FROM WHICH A JURY COULD FIND A DEFENDANT GUILTY BEYOND A
REASONABLE DOUBT. 

MR. JUSTICE WHITE, CONCURRING. 

I JOIN THE COURT'S OPINION AND JUDGMENT.  AS TO THE FACIAL VAGUENESS
ARGUMENT, I HAVE THESE FEW ADDITIONAL WORDS.  THIS CASE COMES TO US
UNILLUMINATED BY FACTS OR RECORD.  THE DISTRICT COURT'S HOLDING THAT
THE DISTRICT OF COLUMBIA STATUTE IS UNCONSTITUTIONALLY VAGUE ON ITS
FACE BECAUSE IT PROSCRIBES ALL ABORTIONS EXCEPT THOSE NECESSARY FOR THE
PRESERVATION OF THE MOTHER'S LIFE OR HEALTH WAS A JUDGMENT THAT THE
AVERAGE PERSON COULD NOT UNDERSTAND WHICH ABORTIONS WERE PERMITTED AND
WHICH WERE PROHIBITED.  BUT SURELY THE STATUTE PUTS EVERYONE ON
ADEQUATE NOTICE THAT THE HEALTH OF THE MOTHER, WHATEVER THAT PHRASE
MEANS, IS THE GOVERNING STANDARD.  IT SHOULD ALSO BE ABSOLUTELY CLEAR
THAT A DOCTOR IS NOT FREE TO PERFORM AN ABORTION ON REQUEST WITHOUT
CONSIDERING WHETHER THE PATIENT'S HEALTH REQUIRES IT.  NO ONE OF
AVERAGE INTELLIGENCE COULD BELIEVE THAT UNDER THIS STATUTE ABORTIONS
NOT DICTATED BY HEALTH CONSIDERATIONS ARE LEGAL.  THUS EVEN IF THE
"HEALTH" STANDARD WERE UNCONSTITUTIONALLY VAGUE, WHICH I AGREE IS NOT
THE CASE, THE STATUTE IS NOT VOID ON ITS FACE SINCE IT REACHES A CLASS
OF CASES IN WHICH THE MEANING OF "HEALTH" IS IRRELEVANT AND NO POSSIBLE
VAGUENESS PROBLEM COULD ARISE.  WE DO NOT, OF COURSE, KNOW WHETHER THIS
IS ONE OF THOSE CASES.  UNTIL WE DO FACIAL VAGUENESS CLAIMS MUST FAIL. 
CF. UNITED STATES V. DIARY CORP., 372 U.S. 29 (1963). 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

WHILE I AGREE WITH PART I OF THE COURT'S OPINION THAT WE HAVE
JURISDICTION OVER THIS APPEAL, I DO NOT THINK THE STATUTE MEETS THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS. 

THE DISTRICT OF COLUMBIA CODE MAKES IT A FELONY FOR A PHYSICIAN TO
PERFORM AN ABORTION "UNLESS THE SAME WERE DONE AS NECESSARY FOR THE
PRESERVATION OF THE MOTHER'S LIFE OR HEALTH."  D.C. CODE ANN. SEC. 22
201 (1967). 

I AGREE WITH THE COURT THAT A PHYSICIAN-- WITHIN THE LIMITS OF HIS
OWN EXPERTISE-- WOULD BE ABLE TO SAY THAT AN ABORTION AT A PARTICULAR
TIME PERFORMED ON A DESIGNATED PATIENT WOULD OR WOULD NOT BE NECESSARY
FOR THE "PRESERVATION" OF HER "LIFE OR HEALTH."  THAT JUDGMENT,
HOWEVER, IS HIGHLY SUBJECTIVE, DEPENDENT ON THE TRAINING AND INSIGHT OF
THE PARTICULAR PHYSICIAN AND HIS STANDARD AS TO WHAT IS "NECESSARY" FOR
THE "PRESERVATION: OF THE MOTHER'S "LIFE OR HEALTH." 

THE ANSWERS MAY WELL DIFFER, PHYSICIAN TO PHYSICIAN.  THOSE TRAINED
IN CONVENTIONAL OBSTETRICS MAY HAVE ONE ANSWER; THOSE WITH DEEPER
PSYCHIATRIC INSIGHT MAY HAVE ANOTHER.  EACH ANSWER IS CLEAR TO THE
PARTICULAR PHYSICIAN.  IF WE COULD READ THE ACT AS MAKING THAT
DETERMINATION CONCLUSIVE, NOT SUBJECT TO REVIEW BY JUDGE AND BY JURY,
THE CASE WOULD BE SIMPLE, AS MR. JUSTICE STEWART POINTS OUT.  BUT THAT
DOES SUCH VIOLENCE TO THE STATUTORY SCHEME THAT I BELIEVE IT IS BEYOND
THE RANGE OF JUDICIAL INTERPRETATION SO TO READ THE ACT.  IF IT IS TO
BE REVISED IN THAT MANNER, CONGRESS SHOULD DO IT. 

HENCE I READ THE ACT, AS DID THE DISTRICT COURT, AS REQUIRING
SUBMISSION TO THE COURT AND JURY OF THE PHYSICIAN'S DECISION.  WHAT
WILL THE JURY SAY?  THE PREJUDICES OF JURORS ARE CUSTOMARILY TAKEN CARE
OF BY CHALLENGES FOR CAUSE AND BY PEREMPTORY CHALLENGES.  BUT VAGUENESS
OF CRIMINAL STATUTES INTRODUCES ANOTHER ELEMENT THAT IS
UNCONTROLLABLE.  ARE THE CONCEPTS SO VAGUE THAT POSSIBLE OFFENDERS HAVE
NO SAFE GUIDELINES FOR THEIR OWN PREDILECTIONS AND PREJUDICES?  IS THE
STATUTORY STANDARD SO EASY TO MANIPULATE THAT ALTHOUGH PHYSICIANS CAN
MAKE GOOD-FAITH DECISIONS BASED ON THE STANDARD, JURIES CAN NONETHELESS
MAKE FELONS OUT OF THEM? 

THE COURT SAID IN LANZETTA V. NEW JERSEY, 306 U.S. 451, 453, 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." 

A THREE-JUDGE COURT IN EVALUATING A TEXAS STATUTORY STANDARD AS TO
WHETHER AN ABORTION WAS ATTEMPTED "FOR THE PURPOSE OF SAVING THE LIFE
OF THE MOTHER" SAID: 

"HOW LIKELY MUST DEATH BE?  MUST DEATH BE CERTAIN IF THE ABORTION IS
NOT PERFORMED?  IS IT ENOUGH THAT THE WOMAN COULD NOT UNDERGO BIRTH
WITHOUT AN ASCERTAINABLY HIGHER POSSIBILITY OF DEATH THAN WOULD
NORMALLY BE THE CASE?  WHAT IF THE WOMAN THREATENED SUICIDE IF THE
ABORTION WAS NOT PERFORMED?  HOW IMMINENT MUST DEATH BE IF THE ABORTION
IS NOT PERFORMED?  IS IT SUFFICIENT IF HAVING THE CHILD WILL SHORTEN
THE LIFE OF THE WOMAN BY A NUMBER OF YEARS?"  ROE V. WADE, 314 F.SUPP. 
1217, 1223. 

THE ROE CASE WAS FOLLOWED BY A THREE-JUDGE COURT IN DOE V. SCOTT,
321 F.SUPP.  1385, WHICH STRUCK DOWN AN ILLINOIS STATUTE WHICH
SANCTIONED AN ABORTION "NECESSARY FOR THE PRESERVATION OF THE WOMAN'S
LIFE."  AND SEE PEOPLE V. BELOUS, 71 CAL.2D 954, 458 P.2D 194. 

A DOCTOR MAY WELL REMOVE AN APPENDIX FAR IN ADVANCE OF RUPTURE IN
ORDER TO PREVENT A RISK THAT MAY NEVER MATERIALIZE.  MAY HE ACT IN A
SIMILAR WAY UNDER THIS ABORTION STATUTE? 

MAY HE PERFORM ABORTIONS ON UNMARRIED WOMEN WHO WANT TO AVOID THE
"STIGMA" OF HAVING AN ILLEGITIMATE CHILD?  IS BEARING A "STIGMA" A
"HEALTH" FACTOR?  ONLY IN ISOLATED CASES?  OR IS IT SUCH WHENEVER THE
WOMAN IS UNMARRIED? 

IS ANY UNWANTED PREGNANCY A "HEALTH" FACTOR BECAUSE IT IS A SOURCE
OF ANXIETY? 

IS AN ABORTION "NECESSARY" IN THE STATUTORY SENSE IF THE DOCTOR
THOUGHT THAT AN ADDITIONAL CHILD IN A FAMILY WOULD UNDULY TAX THE
MOTHER'S PHYSICAL WELL-BEING BY REASON OF THE ADDITIONAL WORK WHICH
WOULD BE FORCED UPON HER? 

WOULD A DOCTOR BE VIOLATING THE LAW IF HE PERFORMED AN ABORTION
BECAUSE THE ADDED EXPENSE OF ANOTHER CHILD IN THE FAMILY WOULD DRAIN
ITS RESOURCES, LEAVING AN ANXIOUS MOTHER WITH AN INSUFFICIENT BUDGET TO
BUY NUTRITIOUS FOOD? 

IS THE FATE OF AN UNWANTED CHILD OR THE PLIGHT OF THE FAMILY INTO
WHICH IT IS BORN RELEVANT TO THE FACTOR OF THE MOTHER'S "HEALTH"? 

MR. JUSTICE HOLMES, IN HOLDING THAT "UNREASONABLE" RESTRAINT OF
TRADE WAS AN ADEQUATE CONSTITUTIONAL STANDARD OF CRIMINALITY, SAID IN
NASH V. UNITED STATES, 229 U.S. 373, 377, THAT "THE LAW IS FULL OF
INSTANCES WHERE A MAN'S FATE DEPENDS ON HIS ESTIMATING RIGHTLY, THAT
IS, AS THE JURY SUBSEQUENTLY ESTIMATES IT, SOME MATTER OF DEGREE.  IF
HIS JUDGMENT IS WRONG, NOT ONLY MAY HE INCUR A FINE OR A SHORT
IMPRISONMENT, AS HERE; HE MAY INCUR THE PENALTY OF DEATH." 

HE WROTE IN A CONTEXT OF ECONOMIC REGULATIONS WHICH ARE RESTRAINED
BY FEW, IF ANY, CONSTITUTIONAL GUARANTEES. 

WHERE, HOWEVER, CONSTITUTIONAL GUARANTEES ARE IMPLICATED, THE
STANDARDS OF CERTAINTY ARE MORE EXACTING. 

WINTERS V. NEW YORK, 333 U.S. 507, 514, 519, HELD VOID FOR VAGUENESS
A STATE STATUTE WHICH AS CONSTRUED MADE IT A CRIME TO PRINT STORIES OF
CRIME "SO MASSED AS TO INCITE TO CRIME," SINCE SUCH A REGULATORY SCHEME
TRENCHED ON FIRST AMENDMENT RIGHTS OF THE PRESS. 

THE STANDARD OF "SACRILEGIOUS" CAN BE USED IN SUCH AN ACCORDION-LIKE
WAY AS TO INFRINGE ON RELIGIOUS RIGHTS PROTECTED BY THE FIRST
AMENDMENT.  JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495, 505. 

THE REQUIREMENT OF A "NARROWLY DRAWN" STATUTE WHEN THE REGULATION
TOUCHES A PROTECTED CONSTITUTIONAL RIGHT (CANTWELL V. CONNECTICUT, 310
U.S. 296, 311; THORNHILL V. ALABAMA, 310 U.S. 88, 100) IS ONLY ANOTHER
FACET OF THE VOID-FOR-VAGUENESS PROBLEM.    WHAT THE COURT HELD IN
HERNDON V. LOWRY, 301 U.S. 242, IS EXTREMELY RELEVANT HERE.  THE BAN OF
PUBLICATIONS MADE TO INCITE INSURRECTION WAS HELD TO SUFFER THE VICE OF
VAGUENESS: 

"THE STATUTE, AS CONTRUED AND APPLIED IN THE APPELLANT'S TRIAL,

  DOES NOT FURNISH A SUFFICIENTLY ASCERTAINABLE STANDARD OF GUILT. 

        .          .          .          . 

"EVERY PERSON WHO ATTACKS EXISTING CONDITIONS, WHO AGITATES FOR A
CHANGE IN THE FORM OF GOVERNMENT, MUST TAKE THE RISK THAT IF A JURY
SHOULD BE OF OPINION HE OUGHT TO HAVE FORESEEN THAT HIS UTTERANCES
MIGHT CONTRIBUTE IN ANY MEASURE TO SOME FUTURE FORCIBLE RESISTANCE TO
THE EXISTING GOVERNMENT HE MAY BE CONVICTED OF THE OFFENSE OF INCITING
INSURRECTION . . . . THE LAW, AS THUS CONSTRUED, LICENSES THE JURY TO
CREATE ITS OWN STANDARD IN EACH CASE."  ID., AT 261, 262, 263. 

IF THESE REQUIREMENTS OF CERTAINTY ARE NOT IMPOSED THEN THE TRIERS
OF FACT HAVE "A POWER TO INVADE IMPERCEPTIBLY (AND THUS UNREVIEWABLY) A
REALM OF CONSTITUTIONALLY PROTECTED PERSONAL LIBERTIES."  NOTE, THE
VOID-FOR-VAGUENESS DOCTRINE IN THE SUPREME COURT, 109 U.PA.L.REV.  67,
104 (1960). 

ABORTION TOUCHES INTIMATE AFFAIRS OF THE FAMILY, OF MARRIAGE, OF
SEX, WHICH IN GRISWOLD V. CONNECTICUT, 381 U.S. 479, WE HELD TO INVOLVE
RIGHTS ASSOCIATED WITH SEVERAL EXPRESS CONSTITUTIONAL RIGHTS AND WHICH
ARE SUMMED UP IN "THE RIGHT OF PRIVACY."  THEY INCLUDE THE RIGHT TO
PROCREATE (SKINNER V. OKLAHOMA, 316 U.S. 535), THE RIGHT TO MARRY
ACROSS THE COLOR LINE (LOVING V. VIRGINIA, 388 U.S. 1), THE INTIMATE
FAMILIAL RELATIONS BETWEEN CHILDREN AND PARENTS (MEYER V. NEBRASKA, 262
U.S. 390; LEVY V. LOUISIANA, 391 U.S. 68, 71-72).  THERE IS A
COMPELLING PERSONAL INTEREST IN MARITAL PRIVACY AND IN THE LIMITATION
OF FAMILY SIZE.  AND ON THE OTHER SIDE IS THE BELIEF OF MANY THAT THE
FETUS, ONCE FORMED, IS A MEMBER OF THE HUMAN FAMILY AND THAT MERE
PERSONAL INCONVENIENCE CANNOT JUSTIFY THE FETUS' DESTRUCTION.  THIS IS
NOT TO SAY THAT GOVERNMENT IS POWERLESS TO LEGISLATE ON ABORTIONS.  YET
THE LAWS ENACTED MUST NOT TRENCH ON CONSTITUTIONAL GUARANTEES WHICH
THEY CAN EASILY DO UNLESS CLOSELY CONFINED. 

ABORTION STATUTES DEAL WITH CONDUCT WHICH IS HEAVILY WEIGHTED WITH
RELIGIOUS TEACHINGS AND ETHICAL CONCEPTS.  /1/  MR. JUSTICE JACKSON
ONCE SPOKE OF THE "TREACHEROUS GROUNDS WE TREAD WHEN WE UNDERTAKE TO
TRANSLATE ETHICAL CONCEPTS INTO LEGAL ONES, CASE BY CASE."  JORDAN V.
DE GEORGE, 341 U.S. 223, 242 (DISSENTING OPINION).  THE DIFFICULTY AND
DANGER ARE COMPOUNDED WHEN RELIGION ADDS ANOTHER LAYER OF PREJUDICE. 
/2/  THE END RESULT IS THAT JURIES CONDEMN WHAT THEY PERSONALLY
DISAPPROVE. 

THE SUBJECT OF ABORTIONS-- LIKE CASES INVOLVING OBSCENITY /3/  -- IS
ONE OF THE MOST INFLAMMATORY ONES TO REACH THE COURT.  PEOPLE INSTANTLY
TAKE SIDES AND THE PUBLIC, FROM WHOM JURIES ARE DRAWN, MAKES UP ITS
MIND ONE WAY OR THE OTHER BEFORE THE CASE IS EVEN ARGUED.  THE
INTERESTS OF THE MOTHER AND THE FETUS ARE OPPOSED.  ON WHICH SIDE
SHOULD THE STATE THROW ITS WEIGHT?  THE ISSUE IS VOLATILE; AND IT IS
RESOLVED BY THE MORAL CODE WHICH AN INDIVIDUAL HAS.  THAT MEANS THAT
JURORS MAY GIVE IT SUCH MEANING AS THEY CHOOSE, WHILE PHYSICIANS ARE
LEFT TO OPERATE OUTSIDE THE LAW.  UNLESS THE STATUTORY CODE OF CONDUCT
IS STABLE AND IN VERY NARROW BOUNDS, JURIES HAVE A WIDE RANGE AND
PHYSICIANS HAVE NO RELIABLE GUIDEPOSTS.  THE WORDS "NECESSARY FOR THE
PRESERVATION OF THE MOTHER'S LIFE OR HEALTH" BECOME FREE-WHEELING
CONCEPTS, TOO EASILY TAKING ON MEANING FROM THE JUROR'S PREDILECTIONS
OR RELIGIOUS PREJUDICES. 

I WOULD AFFIRM THE DISMISSAL OF THESE INDICTMENTS AND LEAVE TO THE
EXPERTS THE DRAFTING OF ABORTION LAWS /4/  THAT PROTECT GOOD-FAITH
MEDICAL PRACTITIONERS FROM THE TREACHERIES OF THE PRESENT LAW. 

/1/  "THERE REMAINS THE MORAL ISSUE OF ABORTION AS MURDER.  WE
SUBMIT THAT THIS IS INSOLUBLE, A MATTER OF RELIGIOUS PHILOSOPHY AND
RELIGIOUS PRINCIPLE AND NOT A MATTER OF FACT.  WE SUGGEST THAT THOSE
WHO BELIEVE ABORTION IS MURDER NEED NOT AVAIL THEMSELVES OF IT.  ON THE
OTHER HAND, WE DO NOT BELIEVE THAT SUCH CONVICTION SHOULD LIMIT THE
FREEDOM OF THOSE NOT BOUND BY IDENTICAL RELIGIOUS CONVICTION.  ALTHOUGH
THE MORAL ISSUE HANGS LIKE A THREATENING CLOUD OVER ANY OPEN DISCUSSION
OF ABORTION, THE MORAL ISSUES ARE NOT ALL ONE-SIDED.  THE PSYCHOANALYST
ERIK ERIKSON STATED THE OTHER SIDE WELL WHEN HE SUGGESTED THAT 'THE
MOST DEADLY OF ALL POSSIBLE SINS IS THE MUTILATION OF A CHILD'S
SPIRIT.'  THERE CAN BE NOTHING MORE DESTRUCTIVE TO A CHILD'S SPIRIT
THAN BEING UNWANTED, AND THERE ARE FEW THINGS MORE DISRUPTIVE TO A
WOMAN'S SPIRIT THAN BEING FORCED WITHOUT LOVE OR NEED INTO
MOTHERHOOD."  THE RIGHT TO ABORTION:  A PSYCHIATRIC VIEW 218-219 (GROUP
FOR THE ADVANCEMENT OF PSYCHIATRY, VOL. 7, PUB. NO. 75, 1969). 

/2/  MR. JUSTICE CLARK RECENTLY WROTE:  "THROUGHOUT HISTORY
RELIGIOUS BELIEF HAS WIELDED A VITAL INFLUENCE ON SOCIETY'S ATTITUDE
REGARDING ABORTION.  THE RELIGIOUS ISSUES INVOLVED ARE PERHAPS THE MOST
FREQUENTLY DEBATED ASPECTS OF ABORTION.  AT THE CENT OF THE
ECCLESIASTICAL DEBATE IS THE CONCEPT OF 'ENSOULMENT' OR 'PERSON-HOOD,'
I.E., THE TIME AT WHICH THE FETUS BECOMES A HUMAN ORGANISM.  THE
REVEREND JOSEPH F. DONSEEL OF FORDHAM UNIVERSITY ADMITTED THAT NO ONE
CAN DETERMINE WITH CERTAINTY THE EXACT MOMENT AT WHICH 'ENSOULMENT'
OCCURS, BUT WE MUST DEAL WITH THE MORAL PROBLEMS OF ABORTING A FETUS
EVEN IF IT HAS NOT TAKEN PLACE.  MANY ROMAN CATHOLICS BELIEVE THAT THE
SOUL IS A GIFT OF GOD GIVEN AT CONCEPTION.  THIS LEADS TO THE
CONCLUSION THAT ABORTING A PREGNANCY AT ANY TIME AMOUNTS TO THE TAKING
OF A HUMAN LIFE AND IS THEREFORE AGAINST THE WILL OF GOD.  OTHERS,
INCLUDING SOME CATHOLICS, BELIEVE THAT ABORTION SHOULD BE LEGAL UNTIL
THE BABY IS VIABLE, I.E., ABLE TO SUPPORT ITSELF OUTSIDE THE WOMB.  IN
BALANCING THE EVILS, THE LATTER CONCLUDE THAT THE EVIL OF DESTROYING
THE FETUS IS OUTWEIGHED BY THE SOCIAL EVILS ACCOMPANYING FORCED
PREGNANCY AND CHILDBIRTH."  RELIGION, MORALITY, AND ABORTION:  A
CONSTITUTIONAL APPRAISAL, 2 LOYOLA U.L.REV.(L.A.) 1, 4 (1969). 

/3/  I HAVE EXPRESSED MY VIEWS ON THE VAGUENESS OF CRIMINAL LAWS
GOVERNING OBSCENITY IN DYSON V. STEIN, 401 U.S. 200, 204 (DISSENTING
OPINION).  AND SEE THE DISSENT OF MR. JUSTICE BLACK IN GINZBERG V.
UNITED STATES, 383 U.S. 463, 476. 

/4/  CLARK, SUPRA, N. 2, AT 10-11. 

CF. NEW YORK'S NEW ABORTION LAW EFFECTIVE JULY 1, 1970, N.Y. PENAL
LAW SEC. 125.05, SUBD. 3 (SUPP. 1970-1971): 

"AN ABORTIONAL ACT IS JUSTIFIABLE WHEN COMMITTED UPON A FEMALE WITH
HER CONSENT BY A DULY LICENSED PHYSICIAN ACTING (A) UNDER A REASONABLE
BELIEF THAT SUCH IS NECESSARY TO PRESERVE HER LIFE, OR, (B) WITHIN
TWENTY-FOUR WEEKS FROM THE COMMENCEMENT OF HER PREGNANCY.  A PREGNANT
FEMALE'S COMMISSION OF AN ABORTIONAL ACT UPON HERSELF IS JUSTIFIABLE
WHEN SHE ACTS UPON THE ADVICE OF A DULY LICENSED PHYSICIAN (1) THAT
SUCH ACT IS NECESSARY TO PRESERVE HER LIFE, OR, (2) WITHIN TWENTY-FOUR
WEEKS FROM THE COMMENCEMENT OF HER PREGNANCY.  THE SUBMISSION BY A
FEMALE TO AN ABORTIONAL ACT IS JUSTIFIABLE WHEN SHE BELIEVES THAT IT IS
BEING COMMITTED BY A DULY LICENSED PHYSICIAN, ACTING UNDER A REASONABLE
BELIEF THAT SUCH ACT IS NECESSARY TO PRESERVE HER LIFE, OR, WITHIN
TWENTY-FOUR WEEKS FROM THE COMMENCEMENT OF HER PREGNANCY."  AND SEE
HALL, THE TRUTH ABOUT ABORTION IN NEW YORK, 13 COLUMBIA FORUM, WINTER
1970, P. 18; SCHWARTZ, THE ABORTION LAWS, 67 OHIO ST.MED.J. 33 (1971). 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, AND MR. JUSTICE BLACKMUN JOIN, DISSENTING AS TO
JURISDICTION. 

APPELLEE VUITCH WAS INDICTED IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA FOR VIOLATIONS OF D.C. CODE ANN. SEC. 22-201
(1967), THE DISTRICT OF COLUMBIA ABORTION STATUTE.  THIS STATUTE IS
APPLICABLE ONLY WITHIN THE DISTRICT OF COLUMBIA.  ON PRETRIAL MOTION BY
VUITCH, THE INDICTMENTS WERE DISMISSED ON THE GROUND THAT THE ABORTION
STATUTE WAS UNCONSTITUTIONALLY VAGUE.  THE UNITED STATES APPEALED
DIRECTLY TO THIS COURT UNDER THE TERMS OF THE CRIMINAL APPEALS ACT OF
1907, 18 U.S.C. 3731, RELYING ON THE PROVISION ALLOWING DIRECT APPEAL
"(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."  /1/  IT IS NOT
CONTESTED THAT, BUT FOR THIS PROVISION OF THE CRIMINAL APPEALS ACT, THE
GOVERNMENT WOULD HAVE A RIGHT OF APPEAL TO THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT UNDER D.C. CODE ANN. SEC. 23-105 (SUPP.
1970), WHICH PROVIDES: 

     "IN ALL CRIMINAL PROSECUTIONS THE UNITED STATES OR THE
DISTRICT

  OF COLUMBIA, AS THE CASE MAY BE, SHALL HAVE THE SAME RIGHT OF

  APPEAL THAT IS GIVEN TO THE DEFENDANT, INCLUDING THE RIGHT TO A

  BILL OF EXCEPTIONS:  PROVIDED, THAT IF ON SUCH APPEAL IT SHALL BE

  FOUND THAT THERE WAS ERROR IN THE RULINGS OF THE COURT DURING A

  TRIAL, A VERDICT IN FAVOR OF THE DEFENDANT SHALL NOT BE SET

  ASIDE." 

THE COURT TODAY-- RELYING ON THE GENERIC REFERENCE TO "STATUTES" AND
"ALL CRIMINAL CASES" IN THE TEXT OF 18 U.S.C. 3731 AND THE ABSENCE OF
AN EXPRESS EXCLUSION OF STATUTES APPLICABLE ONLY WITHIN THE DISTRICT OF
COLUMBIA-- CONCLUDES THAT 18 U.S.C. 3731 RATHER THAN D.C. CODE ANN.
SEC. 23-105 PROVIDES THE PROPER APPELLATE ROUTE FOR THIS CASE.  I MUST
DISAGREE. 

        I 

THE HISTORICAL DEVELOPMENT OF THE GOVERNMENT'S RIGHT TO APPEAL IN
CRIMINAL CASES BOTH IN THE DISTRICT OF COLUMBIA AND THROUGHOUT THE
NATION IS SURVEYED IN CARROLL V. UNITED STATES, 354 U.S. 394 (1957). 
CODE OF 1901.  31 STAT. 1341.  PRIOR TO THE CRIMINAL ACT OF 1907, THE
GOVERNMENT HAD NO RIGHT OF APPEAL IN CRIMINAL CASES OUTSIDE OF THE
DISTRICT OF COLUMBIA.  TO REMEDY THIS SITUATION, A BILL WAS INTRODUCED
IN THE HOUSE OF REPRESENTATIVES.  THAT BILL PRACTICALLY TRACKED THE
LANGUAGE OF THE D.C. STATUTE, AND MADE NO PROVISION FOR DIRECT APPEAL
TO THIS COURT.  40 CONG.REC.  5408.  THE ACCOMPANYING HOUSE REPORT
DESCRIBED THE BILL AS FOLLOWS:  "THE ACCOMPANYING BILL WILL EXTEND
(SEC. 935) OF THE CODE OF THE DISTRICT OF COLUMBIA TO ALL DISTRICTS IN
THE UNITED STATES."  H.R. REP. NO. 2119, 59TH CONG., 1ST SESS., 2
(1906).  THAT BILL PASSED THE HOUSE, BUT THE SENATE COMMITTEE ON THE
JUDICIARY REJECTED THE HOUSE APPROACH OF SIMPLY EXTENDING THE
PROVISIONS OF THE D.C. APPEALS STATUTE TO THE REST OF THE NATION; THE
SENATE COMMITTEE INSTEAD SUBSTITUTED A MORE NARROWLY DRAWN MEASURE
WHICH ENUMERATED SPECIFIC SUBSTANTIVE CATEGORIES OF CRIMINAL CASES TO
BE APPEALABLE BY THE GOVERNMENT AND ALLOCATED JURISDICTION OVER THESE
APPEALS BETWEEN THE SUPREME COURT AND THE THEN CIRCUIT COURTS OF
APPEALS ACCORDING TO THE ALLOCATION OF APPELLATE JURISDICTION FOR CIVIL
CASES ESTABLISHED IN THE CIRCUIT COURT OF APPEALS ACT OF 1891.  S. REP.
NO. 3922, 59TH CONG., 1ST SESS. (1906).  SEE CARROLL V. UNITED STATES,
SUPRA, AT 402 N. 11.  EVEN THAT BILL AS NARROWED COULD NOT PASS THE
SENATE; IT PROVOKED EXTENDED DEBATE IN WHICH THE OPPONENTS OF THE
MEASURE FOCUSED ON THE POTENTIAL FOR ABUSE OF INDIVIDUAL RIGHTS ARISING
FROM REPEATED COURT PROCEEDINGS, DELAYS IN APPEALS, AND RESTRAINTS ON
PERSONAL FREEDOM WHILE THE GOVERNMENT PROSECUTED ITS APPEAL.  SEE
GENERALLY UNITED STATES V. SISSON, 399 U.S. 267 (1970).  THE UPSHOT OF
THESE DEBATES WAS THAT SENATOR ENLSON, THE BILL'S FLOOR MANAGER IN THE
SENATE, AGREED TO ACCEPT A VARIETY OF AMENDMENTS WHICH FURTHER NARROWED
THE CATEGORIES OF CASES APPEALABLE BY THE GOVERNMENT AND MADE SPECIAL
PROVISION FOR THE DEFENDANT'S RELEASE ON HIS OWN RECOGNIZANCE.  SEE 41
CONG.REC.  2818-2825.  /2/ 

IT IS AT THIS POINT THAT SENATOR CLARKE OF ARKANSAS OFFERED AN
AMENDMENT LIMITING THE GOVERNMENT'S RIGHT TO APPEAL DECISIONS
DISMISSING INDICTMENTS OR ARRESTING JUDGMENTS FOR INSUFFICIENCY OF THE
INDICTMENT TO INSTANCES WHERE THE DECISION WAS BASED UPON "THE
INVALIDITY OR CONSTRUCTION OF THE STATUTE."  THE PURPOSE OF THAT
AMENDMENT WAS DESCRIBED BY SENATOR CLARKE AS FOLLOWS: 

     "MR. PRESIDENT, THE OBJECT OF THE AMENDMENT IS TO LIMIT THE

  RIGHT OF APPEAL UPON THE PART OF THE GENERAL GOVERNMENT TO THE

  VALIDITY OR CONSTITUTIONALITY OF THE STATUTE IN WHICH THE

  PROSECUTION IS PROCEEDING.  IT HAS BEEN ENLARGED BY THE ADDITION

  OF ANOTHER CLAUSE, WHICH GIVES THE RIGHT OF APPEAL WHERE THE

  CONSTRUCTION BY THE TRIAL COURT IS SUCH AS TO DECIDE THAT THERE

 IS NO OFFENSE COMMITTED, NOTWITHSTANDING THE VALIDITY OF THE

  STATUTE, AND IN OTHER RESPECTS THE PROCEEDING MAY REMAIN INTACT. 

  I THINK THAT IS A BROAD ENOUGH RIGHT TO CONCEDE TO THE GENERAL

  GOVERNMENT IN THE PROSECUTION OF PERSONS IN THE COURT. 

        .          .          .   . 

     "IN VIEW OF THE DEFECTS THAT RECENT YEARS HAVE DISCLOSED, I DO

  NOT BELIEVE IT TO BE SOUND POLICY TO GO BEYOND THE NECESSITIES AS

  THEY HAVE DEVELOPED DEFECTS IN OUR PROCEDURE.  A CASE RECENTLY

  OCCURRING HAS DRAWN ATTENTION TO THE FACT THAT IF A CIRCUIT JUDGE

  OR A DISTRICT JUDGE HOLDING THE CIRCUIT SHOULD DETERMINE THAT A

  STATUTE OF CONGRESS WAS INVALID, THE UNITED STATES IS WITHOUT

MEANS OF HAVING THAT MATTER SUBMITTED TO A TRIBUNAL THAT UNDER

  THE CONSTITUTION HAS POWER TO SETTLE THAT QUESTION.  I DO NOT

  BELIEVE THE REMEDY OUGHT TO BE ANY WIDER THAN THE MISCHIEF THAT

  HAS BEEN DISCLOSED.  I DO NOT BELIEVE THAT ANY ADDITIONAL

  ADVANTAGES OUGHT TO BE GIVEN TO THE GENERAL GOVERNMENT IN THE

  PROSECUTION OF PERSONS ARRAIGNED IN COURT, BUT I DO BELIEVE THE

  PARAGRAPH OUGHT TO BE PERFECTED IN THAT BEHALF, SO AS TO PROVIDE

  THAT THERE SHALL BE AN APPEAL TO THE COURT HAVING AUTHORITY TO

  GIVE UNIFORMITY TO THE PRACTICE WHICH SHALL PREVAIL IN ALL THE

  COURTS OF THE UNITED STATES, AND THAT THEY SHALL BE READY TO SAY,

  AND SAY PROMPTLY, WHAT THE STATUTE MEANS AND WHETHER OR NOT IT
IS

  A VALID STATUTE. 

        .          .        .          . 

     "SO I THINK THIS AMENDMENT GIVES EXPRESSION TO THE PROPOSITION

  THAT THE REMEDY WE PROVIDE HERE NOW SHOULD BE NO WIDER THAN THE

  DEFECT THAT HAS BEEN DISCLOSED IN THE PRECEDING CRIMINAL

  PROCEDURE; AND THAT IS THAT WHENEVER THE VALIDITY OF A STATUTE

  HAS BEEN ADVERSELY DECIDED BY A TRIAL COURT, WHEREVER ITS

  UNCONSTITUTIONALITY HAS BEEN PRONOUNCED BY A TRIAL COURT, THE

  GOVERNMENT OUGHT TO HAVE THE RIGHT TO PROMPTLY SUBMIT THAT TO THE

  TRIBUNAL HAVING AUTHORITY TO DISPOSE OF SUCH QUESTIONS IN ORDER

  THAT THERE MAY BE A UNIFORM ENFORCEMENT OF THE LAW THROUGHOUT THE

  ENTIRE LIMITS OF THE UNITED STATES. 

      "THIS IS THE PURPOSE I HAVE, MR. PRESIDENT, AND HAVING

  DISCUSSED IT WITH THE DISTINGUISHED SENATOR FROM WISCONSIN . . .

  AND THE DISTINGUISHED SENATOR FROM MINNESOTA (MR. NELSON), WE

  AGREED THAT THAT WOULD PROBABLY MEET THE DEFECT."  41

  CONG.REC.  2819-2820. 

SEE GENERALLY 41 CONG.REC.  2819-2822. 

THE BILL AS THUS AMENDED PASSED THE SENATE; THE HOUSE DISAGREED TO
THE SENATE AMENDMENT, BUT YIELDED IN CONFERENCE.  THE BILL IN
CONFERENCE WAS AMENDED TO PROVIDE FOR DIRECT APPEALS TO THE SUPREME
COURT.  SEE H.R. CONF. REP. NO. 8113, 59TH CONG., 2D SESS. (1907).  NO
EXPLANATION WAS GIVEN IN THE CONFERENCE REPORT FOR THE EXCLUSIVE DIRECT
APPEAL ROUTE. 

I DRAW FROM THESE LEGISLATIVE MATERIALS THE FOLLOWING RELEVANT
PROPOSITIONS:  (1) THE CONGRESS WAS DEFINITELY ADVERTENT TO THE
EXISTENCE OF A GOVERNMENTAL APPEAL RIGHT IN CRIMINAL CASES WITHIN THE
DISTRICT; (2) THE CONGRESS EXPLICITLY REJECTED THE SIMPLE APPROACH OF
EXTENDING THE D.C. PROVISION TO THE NATION; (3) THE PARTICULAR
PROVISION OF THE ACT RELIED ON BY THE GOVERNMENT AS SUPPORTING ITS
DIRECT APPEAL IN THIS CASE WAS AMENDED WITH A VIEW TO LIMITING ITS
REACH TO A RELATIVELY PRECISE DEFECT, I.E., THE DEBILITATING EFFECT ON
THE ENFORCEMENT OF CRIMINAL LAWS ARISING FROM CONFLICTING JUDICIAL
INTERPRETATIONS; AND (4) THE SUBSTITUTION OF AN EXCLUSIVE DIRECT APPEAL
TO THIS COURT, WHILE NOT EXPRESSLY EXPLAINED, IS PERFECTLY COMPATIBLE
WITH THE GOAL OF PROMPTLY ACHIEVING UNIFORMITY IN CONSTRUCTION OF
STATUTES APPLICABLE NATIONWIDE, WHILE AT THE SAME TIME BEING WHOLLY
UNNECESSARY TO THE RESOLUTION OF CONFLICTING DISTRICT COURT
CONSTRUCTIONS OF LOCAL D.C. STATUTES, GIVEN THE EXISTENCE OF A RIGHT OF
APPEAL TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

        II 

THE QUESTION OF OVERLAP BETWEEN THE APPELLATE ROUTES AVAILABLE TO
THE GOVERNMENT IN CRIMINAL CASES UNDER THE D.C. CODE AND 18 U.S.C. 3731
WAS FIRST DEALT WITH BY THIS COURT IN UNITED STATES V. BURROUGHS, 289
U.S. 159 (1933).  IN BURROUGHS THE DEFENDANTS WERE INDICTED IN THE THEN
SUPREME COURT OF THE DISTRICT OF COLUMBIA FOR VIOLATION OF THE FEDERAL
CORRUPT PRACTICES ACT, A STATUTE OF NATIONWIDE APPLICABILITY.  THEY
SUCCESSFULLY DEMURRED ON TWO GROUNDS:  ONE INVOLVING THE CONSTRUCTION
OF THE STATUTE, AND THE OTHER INVOLVING THE SUFFICIENCY OF THE
INDICTMENT AS A PLEADING.  THE GOVERNMENT TOOK AN APPEAL TO THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA UNDER THE D.C. APPEALS
STATUTE.  THE APPELLATE COURT CERTIFIED TO THIS COURT THE QUESTION
WHETHER IT HAD JURISDICTION OVER AN APPEAL WHERE A SEC. 3731-TYPE
CHALLENGE WAS JOINED WITH A CHALLENGE TO THE SUFFICIENCY OF THE
INDICTMENT AS A PLEADING.  THE COURT DISPOSED OF THE QUESTION BY
HOLDING THAT THE CRIMINAL APPEALS ACT IS INAPPLICABLE TO ANY CRIMINAL
CASE APPEALABLE UNDER THE PROVISIONS OF THE D.C. CODE: 

     "THE CRIMINAL APPEALS ACT, IN NAMING THE COURTS FROM WHICH

  APPEALS MAY BE TAKEN TO THIS COURT, EMPLOYS THE PHRASE 'DISTRICT

  COURTS'; NOT 'COURTS OF THE UNITED STATES,' OR 'COURTS EXERCISING

  THE SAME JURISDICTION AS DISTRICT COURTS.'  WE NEED NOT, HOWEVER,

  DETERMINE WHETHER THE STATUTE SHOULD BE CONSTRUED TO EMBRACE

  CRIMINAL CASES TRIED IN THE SUPREME COURT OF THE DISTRICT IF SEC.

  935 OF THE DISTRICT CODE WERE NOT IN EFFECT.  THAT SECTION DEALS

  COMPREHENSIVELY WITH APPEALS IN CRIMINAL CASES FROM ALL OF THE

  COURTS OF FIRST INSTANCE OF THE DISTRICT AND CONFERS ON THE COURT

  OF APPEALS JURISDICTION OF APPEALS BY THE GOVERNMENT SEEKING

REVIEW OF THE JUDGMENTS OF THOSE COURTS.  THE CRIMINAL APPEALS

  ACT, ON THE OTHER HAND, AFFECTS ONLY CERTAIN SPECIFIED CLASSES OF

  DECISIONS IN DISTRICT COURTS, CONTAINS NO REPEALING CLAUSE, AND

  NO REFERENCE TO THE COURTS OF THE DISTRICT OF COLUMBIA OR THE

  TERRITORIAL COURTS, UPON MANY OF WHICH JURISDICTION IS CONFERRED

  BY LANGUAGE QUITE SIMILAR TO THAT OF THE CODE OF LAW OF THE

  DISTRICT.  WE CANNOT CONSTRUE IT AS IMPLIEDLY REPEALING THE

  COMPLETE APPELLATE SYSTEM CREATED FOR THE DISTRICT OF COLUMBIA BY

  SEC. 935 OF THE CODE, IN THE ABSENCE OF EXPRESSION ON THE PART OF

  CONGRESS INDICATING THAT PURPOSE.  IMPLIED REPEALS ARE NOT

  FAVORED; AND IF EFFECT CAN REASONABLY BE GIVEN TO BOTH STATUTES,

  THE PRESUMPTION IS THAT THE EARLIER IS INTENDED TO REMAIN IN

  FORCE . . . ."  289 U.S.,AT 163-164.  /3/

THE HOLDING IN BURROUGHS ESTABLISHED A COMPLETE SEPARATION OF THE TWO
STATUTORY SCHEMES FOR GOVERNMENT APPEALS IN CRIMINAL CASES; THE ESSENCE
OF THE COURT'S RATIONALE WAS A PRESUMPTION AGAINST IMPLIED REPEALS. 

IN 1942, CONGRESS AMENDED THE CRIMINAL APPEALS ACT TO PROVIDE FOR
GOVERNMENT APPEALS TO THE COURTS OF APPEALS FROM ALL DECISIONS
DISMISSING INDICTMENTS OR ARRESTING JUDGMENTS OF CONVICTIONS EXCEPT
WHERE A RIGHT OF DIRECT APPEAL TO THIS COURT EXISTS.  56 STAT. 271. 
THE NEW AMENDMENT EXPRESSLY INCLUDED THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT AS ONE OF THE INTERMEDIATE
APPELLATE TRIBUNALS TO WHICH THE GOVERNMENT COULD APPEAL; /4/  IN
ADDITION, THE ACT ADDED A NEW PROVISION TO THE JUDICIAL CODE
ESTABLISHING APPELLATE JURISDICTION IN THE THEN CIRCUIT COURTS OF
APPEALS "IN CRIMINAL CASES ON APPEALS TAKEN BY THE UNITED STATES IN
CASES WHERE SUCH APPEALS ARE PERMITTED BY LAW."  56 STAT. 272.  THE
LATTER PROVISION ALSO EXPRESSLY INCORPORATED THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA COURT.  /5/ IBID. 

THE LEGISLATIVE HISTORY OF THE 1942 AMENDMENT OFFERS NO EXPLICATION
OF CONGRESSIONAL INTENT IN INCLUDING THE D.C. COURTS WITHIN THE ACT. 
/6/  IT IS CERTAIN THAT THIS AMENDMENT GENERATES SOME FORM OF OVERLAP
BETWEEN THE TWO STATUTORY SCHEMES FOR GOVERNMENTAL APPEALS IN CRIMINAL
CASES.  IN CARROLL V. UNITED STATES, 354 U.S. 394, 411 (1957), THE
COURT RECOGNIZED THE NEW SITUATION CREATED BY THE 1942 AMENDMENT: 

"IT MAY BE CONCLUDED, THEN, THAT EVEN TODAY CRIMINAL APPEALS BY THE
GOVERNMENT IN THE DISTRICT OF COLUMBIA ARE NOT LIMITED TO THE
CATEGORIES SET FORTH IN 18 U.S.C. 3731, ALTHOUGH AS TO CASES OF THE
TYPE COVERED BY THAT SPECIAL JURISDICTIONAL STATUTE, ITS EXPLICIT
DIRECTIONS WILL PREVAIL OVER THE GENERAL TERMS OF (HE D.C. STATUTE) . .
. ."  THAT, HOWEVER, LEAVES OPEN THE QUESTION WHICH CASES COME WITHIN
THE CATEGORIES SET FORTH IN 18 U.S.C. 3731. 

       III 

AFTER THIS COURT'S HOLDING IN BURROUGHS, IT WAS CLEAR THAT IF
CONGRESS WISHED TO EFFECTUATE ANY DISPLACEMENT OFTHE PRE-1970 ROUTE FOR
GOVERNMENT APPEALS OF CRIMINAL CASES WITHIN THE DISTRICT OF COLUMBIA,
SOME EXPRESS MANIFESTATION OF ITS INTENT WAS REQUIRED.  THE 1942
AMENDMENT FOLLOWED THE BURROUGHS DECISION.  SINCE CONGRESS THEN ACTED
TO CREATE SOME OVERLAP BETWEEN THE TWO STATUTES WITHOUT FURTHER
LIMITING THE CATEGORIES OF DIRECTLY APPEALABLE CRIMINAL CASES, IT MAY
BE ARGUED THAT WE SHOULD PRESUME CONGRESS INTENDED, AS OF 1942, TO
EMBRACE WITHIN THE VERY SPECIAL APPEALS PROCEDURES OF 18 U.S.C. 3731
CRIMINAL CASES BASED UPON STATUTES APPLICABLE ONLY WITHIN THE
DISTRICT. 

BUT THAT PRESUMPTION FROM A COMPLETELY SILENT LEGISLATIVE RECORD
FLIES IN THE FACE OF THE PRINCIPLE THAT STATUTES CREATING A RIGHT OF
DIRECT APPEAL TO THIS COURT SHOULD BE NARROWLY CONSTRUED.  CF. SWIFT &
CO. V. WICKHAM, 382 U.S. 111, 128-129 (1965); FLORIDA LIME GROWERS V.
JACOBSEN, 362 U.S. 73, 92-93 (1960) (FRANKFURTER, J., DISSENTING). 
AND, IN LIGHT OF THE LEGISLATIVE HISTORY OF THE 1907 ACT AND THIS
COURT'S EXPLICIT HOLDING IN BURROUGHS THAT THE 1907 ACT HAD NO IMPACT
ON CASES APPEALABLE UNDER THE D.C. PROVISION, IT IS ESPECIALLY
INAPPROPRIATE TO RELY ON THE ABSENCE OF ANY FURTHER LIMITING LANGUAGE
IN THE 1942 AMENDMENT AS A JUSTIFICATION FOR READING THE TERM "STATUTE"
AS ENCOMPASSING CRIMINAL PROSECUTIONS IN THE DISTRICT BASED ON LOCAL
AS WELL AS NATIONWIDE STATUTES. 

THE LEGISLATIVE HISTORY OF THE 1907 ACT SUGGESTS A PERFECTLY
PLAUSIBLE REASON FOR INTERPRETING THE LANGUAGE "BASED UPON THE
INVALIDITY OR CONSTRUCTION OF THE STATUTE" AS EXCLUDING D.C. STATUTES:
THAT LANGUAGE WAS PUT IN THE ACT BY SENATOR CLARKE WITH THE EXPRESS
INTENTION OF LIMITING THE ACT'S GOAL TO REMEDYING THE PRECISE DEFECT OF
INCONSISTENT ENFORCEMENT OF CRIMINAL STATUTES ARISING FROM THE LACK OF
A GOVERNMENT APPEAL.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT CONSTITUTES A PERFECTLY ADEQUATE APPELLATE TRIBUNAL FOR
RESOLVING CONFLICTING INTERPRETATIONS GIVEN LOCAL STATUTES BY JUDGES
WITHIN THE DISTRICT OF COLUMBIA.  /7/  WHERE, HOWEVER, THE GOVERNMENT
BRINGS A PROSECUTION IN THE DISTRICT OF COLUMBIA BASED ON A STATUTE OF
NATIONWIDE APPLICABILITY, THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT CANNOT ACHIEVE UNIFORMITY IN THE ENFORCEMENT OF THE
STATUTE. 

AS AN ORIGINAL PROPOSITION, THEN, A CONSTRUCTION OF THE RELEVANT
PROVISIONS OF THE 1907 ACT AS EXCLUDING CRIMINAL CASES IN THE DISTRICT
BROUGHT UNDER LOCAL STATUTES BUT INCLUDING CASES BROUGHT UNDER
NATIONWIDE STATUTES WOULD HAVE BEEN CONSISTENT BOTH WITH THE EXPRESS
PURPOSE OF SENATOR CLARKE'S AMENDMENT AND THE CANON OF STRICT
CONSTRUCTION AS APPLIED TO DIRECT APPEALS STATUTES.  /8/  BUT THE COURT
IN BURROUGHS TOOK THE POSITION THAT CONGRESS COULD NOT DISPLACE THE PRE
EXISTING APPELLATE ROUTE TO ANY EXTENT WITHOUT INDICATING AN EXPRESS
INTENT TO DO SO; BURROUGHS, SIGNIFICANTLY, INVOLVED A PROSECUTION UNDER
A STATUTE OF NATIONWIDE APPLICABILITY.  SUBSEQUENTLY, CONGRESS DID
EXPRESSLY INDICATE AN INTENT TO DISPLACE THE ALTERNATIVE APPELLATE
ROUTE AVAILABLE WITHIN THE DISTRICT.  THE EXTENT OF THAT DISPLACEMENT,
I THINK, SHOULD NOW BE MEASURED BY THE EXPRESS GOAL OF THE RELEVANT
PROVISION OF THE 1907 ACT, AS LIMITED BY SENATOR CLARK:  AVOIDANCE OF
INCONSISTENT ENFORCEMENT OF CRIMINAL LAWS.  THAT THEORY OF LEGISLATIVE
PURPOSE-- COMBINED WITH THE BURROUGHS HOLDING THAT CONGRESS SHOULD BE
REQUIRED TO AFFIRMATIVELY INDICATE AN INTENT TO DISPLACE THE PRIOR
APPELLATE ROUTE-- YIELDS AN INTERPRETATION OF THE 1907 ACT AS AMENDED
IN 1942 WHICH IS CONSISTENT WITH THE CANON OF STRICT CONSTRUCTION
GENERALLY APPLIED TO DIRECT APPEALS STATUTES.  /9/

        IV 

I HAVE LITTLE DOUBT THAT, HAD THE CRIMINAL APPEALS ACT NOT BEEN
RECENTLY AMENDED TO DISPENSE WITH DIRECT APPEALS TO THIS COURT, SEE N.
1, SUPRA, THE INTERPRETATION OF THE ACT I HAVE SUGGESTED WOULD BE
ADOPTED BY THE COURT.  THIS COURT HAS NEVER TAKEN JURISDICTION OVER A
DIRECT APPEAL FROM A DISMISSAL OF A PROSECUTION BROUGHT IN THE DISTRICT
OF COLUMBIA FOR VIOLATION OF A STATUTE APPLICABLE WITHIN THE DISTRICT. 
IT IS WORTH NOTING THAT, GIVEN THE COURT'S ADHERENCE TO THE PRINCIPLES
OF CARROLL V. UNITED STATES, SUPRA, THE RATHER ABSURD WASTE OF OUR
JUDICIAL RESOURCES ON CASES SUCH AS UNITED STATES V. WATERS, 175 F.2D
340, APPEAL DISMISSED ON MOTION OF THE UNITED STATES, 335 U.S. 869
(1948), AND UNITED STATES V. SWEET, 399 U.S. 517 (1970), SEE N. 8,
SUPRA, COULD NOT EVEN BE AVOIDED BY THE EXERCISE OF GOVERNMENTAL
DISCRETION IN CHOOSING APPELLATE ROUTES.  IN LIGHT OF CARROLL, I CANNOT
BELIEVE THAT A PERFECTLY ACCEPTABLE READING OF CONGRESSIONAL PURPOSE
UNDERPINNING THE DEFINITION OF CATEGORIES OF CASES DIRECTLY APPEALABLE
UNDER 18 U.S.C. 3731 WHICH EXCLUDES STATUTES APPLICABLE ONLY WITHIN THE
DISTRICT OF COLUMBIA WOULD HAVE BEEN TURNED DOWN BY THE COURT. 

OF COURSE, THE RECENT ELIMINATION OF THE DIRECT APPEAL ROUTE REMOVES
A GREAT DEAL OF THE INCENTIVE TO CONTINUE THE STRINGENT STANDARDS OF
CONSTRUCTION WITH RESPECT TO THIS STATUTE THAT HAVE TRADITIONALLY
PREVAILED IN THIS COURT.  INDEED, AT THIS STAGE OF THE GAME, THE CANON
OF STRICT CONSTRUCTION PRODUCES THE IRONIC RESULT OF COMPELLING A
RELATIVELY GREATER EXPENDITURE OF JUDICIAL ENERGIES IN ASSESSING OUR
JURISDICTION OVER THE REMAINDER OF THE CRIMINAL CASES PENDING IN THE
DISTRICT COURTS OF THE NATION AT THE TIME OF THE MOST RECENT AMENDMENT
THAN WOULD BE INVOLVED IN DECIDING THOSE CASES ON THE MERITS. 
NONETHELESS, THIS VERY TERM WE HAVE INDICATED THAT WE INTEND TO ADHERE
TO THE RULES OF CONSTRUCTION EVOLVED BY THIS COURT DURING THE LONG AND
TORTUOUS HISTORY OF THIS STATUTE.  UNITED STATES V. WELLER, 401 U.S.
254 (1971). 

THE ONLY RESPONSE WE ARE OFFERED IS THAT THE INTERESTS OF AVOIDING
INCONSISTENT ENFORCEMENT OF CRIMINAL LAWS ARGUES FOR EXERCISING
JURISIDICTION OVER THIS CASE BECAUSE SIMILAR STATUTES IN OTHER
JURISDICTIONS ARE UNDER ATTACK ON VAGUENESS GROUNDS.  SEE THE COURT'S
OPINION, AT 65-66.  SURELY THOSE OF MY BRETHREN WHO SUBSCRIBE TO THE
VIEWS ON JURISDICTION EXPRESSED IN THE OPINION OF THE COURT MUST
RECOGNIZE THAT WE CANNOT LIMIT THE CATEGORY OF APPEALABLE CASES UNDER
THIS PROVISION OF THE ACT TO PROSECUTIONS BROUGHT UNDER D.C. STATUTES
WHICH ARE (A) DUPLICATED IN OTHER JURISDICTIONS, AND (B) UNDER ATTACK
ON SIMILAR FEDERAL QUESTION GROUNDS IN OTHER JURISDICTIONS.  THE
PROFFERED RESPONSE IS, THEREFORE, NOT TRULY A REASON FOR CONCLUDING WE
HAVE JURISDICTION OVER THE RELEVANT CATEGORY OF CASES; RATHER, IT IS A
REASON FOR EXERCISING OUR POWER IN THIS ONE CASE TO SETTLE DR. VUTICH'S
VAGUENESS CLAIM IN SPITE OF THE ABSENCE OF THE JURISDICTIONAL
PREREQUISITES WHICH LEGITIMIZE THE EXERCISE OF THAT JUDICIAL POWER. 
    V 

HAVING CONCLUDED THAT THE GOVERNMENT CANNOT DIRECTLY APPEAL THE
DISMISSAL OF THE INDICTMENTS TO THIS COURT UNDER THE PROVISIONS OF 18
U.S.C. 3731, IT ALSO FOLLOWS THAT WE CANNOT UTILIZE THE REMAND
PROVISIONS OF THAT STATUTE TO REROUTE THE APPEAL TO THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  HOWEVER, WE DO HAVE
JURISDICTION TO DETERMINE OUR JURISDICTION, AND, IN THE ANALOGOUS THREE
JUDGE COURT SITUATION WHERE AN ALTERNATIVE APPELLATE ROUTE EXISTS BUT
THE STATUTE ACCORDING THIS COURT DIRECT JURISDICTION OVER THE CERTAIN
APPEALS INCLUDES NO REMAND PROCEDURE, THIS COURT HAS VACATED
THEJUDGMENT OF THE COURT OF ORIGINAL JURISDICTION AND REMANDED THE CASE
TO THAT COURT FOR THE ENTRY OF A FRESH DECREE FROM WHICH TIMELY APPEAL
MAY BE TAKEN TO THE PROPER APPELLATE TRIBUNAL.  ROCKEFELLER V. CATHOLIC
MEDICAL CENTER OF BROOKLYN & QUEENS, 397 U.S. 820 (1970).  THE INSTANT
CASE, OF COURSE, IS A CRIMINAL PROSECUTION, AND THERE IS A
CONSIDERATION NOT PRESENT IN THE THREE-JUDGE COURT SITUATION:  I.E.,
THE ADDITIONAL ANXIETY CAUSED THE DEFENDANT BY VIRTUE OF THE
GOVERNMENT'S ERRONEOUS CHOICE OF APPELLATE ROUTES.  BUT, WHILE 18
U.S.C. 3731 CANNOT EMPOWER US TO TRANSFER THE CASE, THAT STATUTE IS
STILL RELEVANT AS AN EXPRESSION OF CONGRESSIONAL POLICY TO SAVE THE
GOVERNMENT'S APPEAL WHERE AN ERRONEOUS CHOICE OF APPELLATE ROUTES IS
MADE, EVEN AT THE EXPENSE OF ADDITIONAL ANXIETY TO THE DEFENDANT. 
ACCORDINGLY, I THINK THE PROPER DISPOSITION OF THIS CASE WOULD BE TO
VACATE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE CASE FOR THE
ENTRY OF A FRESH JUDGMENT FROM WHICH THE GOVERNMENT COULD TAKE A TIMELY
APPEAL TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
PURSUANT TO D.C. CODE ANN. SEC. 23-105. 

VI 

NOTWITHSTANDING THE VIEWS ON JURISDICTION EXPRESSED ABOVE, AND
SPEAKING ONLY FOR MYSELF, AND NOT FOR THOSE OF MY BRETHREN WHO AGREE
WITH MY DISCUSSION OF THE JURISDICTIONAL ISSUE IN THIS CASE, I HAVE
CONCLUDED, SUBSTANTIALLY FOR THE REASONS SET FORTH IN MR. JUSTICE
BLACKMUN'S SEPARATE OPINION, THAT I SHOULD ALSO REACH THE MERITS. 
ACCORDINGLY, I CONCUR IN PART II OF THE COURT'S OPINION AND THE
JUDGMENT OF THE COURT. 

/1/ THE TEXT OF 18 U.S.C. 3731 WAS AS FOLLOWS: 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED STATES IN
ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES: 

"FROM A DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING ANY
INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF, WHERE SUCH DECISION OR
JUDGMENT IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED. 

"FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION FOR
INSUFFICIENCY OF THE INDICTMENT OR INFORMATION, WHERE SUCH DECISION IS
BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE
INDICTMENT OR INFORMATION IS FOUNDED. 

"FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY. 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS TO A COURT OF APPEALS 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 EXCEPT WHERE A DIRECT
APPEAL TO THE SUPREME COURT OF THE UNITED STATES IS PROVIDED BY THIS

"FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION EXCEPT WHERE A
DIRECT APPEAL TO THE SUPREME COURT OF THE UNITED STATES IS PROVIDED BY
THIS SECTION. 

"THE APPEAL IN ALL SUCH CASES SHALL BE TAKEN WITHIN THIRTY DAYS
AFTER THE DECISION OR JUDGMENT HAS BEEN RENDERED AND SHALL BE
DILIGENTLY PROSECUTED. 

"PENDING THE PROSECUTION AND DETERMINATION OF THE APPEAL IN THE
FOREGOING INSTANCES, THE DEFENDANT SHALL BE ADMITTED TO BAIL ON HIS OWN
RECOGNIZANCE. 

"IF AN APPEAL SHALL BE TAKEN, PURSUANT TO THIS SECTION, TO THE SUPREME
COURT OF THE UNITED STATES WHICH, IN THE OPINION OF THAT COURT, SHOULD
HAVE BEEN TAKEN TO A COURT OF APPEALS, THE SUPREME COURT SHALL REMAND
THE CASE TO THE COURT OF APPEALS, WHICH SHALL THEN HAVE JURISDICTION TO
HEAR AND DETERMINE THE SAME AS IF THE APPEAL HAD BEEN TAKEN TO THAT
COURT IN THE FIRST INSTANCE. 

"IF AN APPEAL SHALL BE TAKEN PURSUANT TO THIS SECTION TO ANY COURT
OF APPEALS WHICH, IN THE OPINION OF SUCH COURT, SHOULD HAVE BEEN TAKEN
DIRECTLY TO THE SUPREME COURT OF THE UNITED STATES, SUCH COURT SHALL
CERTIFY THE CASE TO THE SUPREME COURT OF THE UNITED STATES, WHICH SHALL
THEREUPON HAVE JURISDICTION TO HEAR AND DETERMINE THE CASE TO THE SAME
EXTENT AS IF AN APPEAL HAD BEEN TAKEN DIRECTLY TO THAT COURT." 

AS NOTED IN UNITED STATES V. WELLER, 401 U.S. 254 (1971), THESE
PROVISIONS WERE AMENDED BY SEC. 14(A) OF THE OMNIBUS CRIME CONTROL ACT
OF 1970, 84 STAT. 1890.  BUT CASES BEGUN IN THE DISTRICT COURT BEFORE
THE NEW STATUTE TOOK EFFECT ARE NOT AFFECTED.  SEE UNITED STATES V.
WELLER, SUPRA, AT 255 N. 1. 

/2/  THE BILL HAD BEEN AMENDED EARLIER TO REQUIRE THE GOVERNMENT TO
TAKE AN APPEAL WITHIN 30 DAYS.  41 CONG.REC.  2193-2194. 

/3/  THE COURT'S OPINION CHARACTERIZES BURROUGHS AS HAVING "HELD
ONLY THAT THE TERM 'DISTRICT COURT' IN THE CRIMINAL APPEALS ACT DID NOT
INCLUDE THE THEN-EXISTING SUPREME COURT OF THE DISTRICT OF COLUMBIA." 
ANTE, AT 65.  AS I READ THE ITALICIZED PORTION OF THE ABOVE-QUOTED
PASSAGE, THAT IS THE PRECISE QUESTION THAT THE BURROUGHS COURT
CONCLUDED IT DID NOT HAVE TO DECIDE, IN LIGHT OF ITS HOLDING THAT THE
CRIMINAL APPEALS ACT COULD NOT, BY IMPLICATION, EFFECT THE REPEAL OF
SEC. 935 OF THE DISTRICT CODE. 

/4/  THESE EXPLICIT REFERENCES WERE SUBSEQUENTLY OMITTED BY
AMENDMENT IN 1949, 63 STAT. 97, WHICH ALTERED THE LANGUAGE OF THE
STATUTE TO CONFORM TO THE CHANGED NOMENCLATURE OF THE FEDERAL COURTS. 

/5/  THIS LAST PROVISION WAS AN AMENDMENT TO 28 U.S.C. 225 (1940
ED.); SEE 56 STAT. 272 AND CARROLL V. UNITED STATES, SUPRA, AT 398 N.
5. 

/6/  THE FOCUS WAS ON THE DECISION TO ACCORD THE GOVERNMENT A RIGHT
OF APPEAL TO THE COURTS OF APPEALS WHERE NO DIRECT APPEAL TO THIS COURT
LAY.  SEE H.R. REP. NO. 45, 77TH CONG., 1ST SESS. (1941); S. REP. NO.
868, 77TH CONG., 1ST SESS. (1941). 

/7/  THE GOVERNMENT SUGGESTS A CONSTRUCTION OF THE CRIMINAL APPEALS
ACT EXCLUDING D.C. STATUTES WOULD REQUIRE THE COURT TO EXCLUDE OTHER
CRIMINAL STATUTES OF ONLY LIMITED TERRITORIAL APPLICATION, E.G., 18
U.S.C. 1111-1112 (PUNISHING HOMICIDE "(WITHIN THE SPECIAL MARITIME AND
TERRITORIAL JURISDICTION OF THE UNITED STATES"); 18 U.S.C. 1151-1165
(REGULATING OFFENSES WITHIN INDIAN TERRITORY).  SEE BRIEF FOR THE
UNITED STATES 15-16.  BUT I WOULD NOT CONSTRUE 18 U.S.C. 3731 AS
EXCLUDING D.C. CRIMINAL CASES PUNISHABLE UNDER D.C. STATUTES BECAUSE
THEY ARE OF LIMITED TERRITORIAL APPLICATION; RATHER, THE POINT IS THAT
GIVEN THE EXISTENCE OF A PRIOR RIGHT OF GOVERNMENT APPEAL, THE RISKS OF
DISUNIFORMITY WHICH SENATOR CLARKE DESCRIBED THE STATUTE AS INTENDED TO
CURE DO NOT EXIST. 

/8/  THE GOVERNMENT SUGGESTS, IN ITS SUPPLEMENTAL MEMORANDUM FOR THE
UNITED STATES 6-7, THAT A CONSTRUCTION OF THE 1907 ACT EXCLUDING
STATUTES APPLICABLE ONLY WITH THE DISTRICT OF COLUMBIA FROM THE SCOPE
OF THE FIRST TWO PROVISIONS LEADS TO THE "ANOMALOUS CONSEQUENCE" THAT
18 U.S.C. 3731 WOULD STILL ALLOW A DIRECT APPEAL IN A D.C. CASE WHERE
THE MOTION-IN-BAR PROVISION IS CONCERNED.  E.G., UNITED STATES V.
SWEET, 399 U.S. 517 (1970).  THE ALLEGED "ANOMALY" WOULD SEEM TO ARGUE
FOR THE CONCLUSION THAT D.C. CASES INVOLVING THE MOTION-IN-BAR
PROVISION ARE NOT DIRECTLY APPEALABLE HERE, EITHER.  CERTAINLY, THE
COURT'S DISPOSITION IN SWEET WOULD NOT FORECLOSE THAT RESULT. 

IN ANY EVENT, THE PURPOSE SENATOR CLARKE HAD IN MIND IN OFFERING HIS
LIMITING AMENDMENT WITH REGARD TO THE FIRST TWO PROVISIONS OF 18 U.S.C.
3731 WAS RATHER CLEARLY EXPRESSED; THAT HE FAILED TO ADDRESS HIMSELF TO
THE MOTION-IN-BAR PROVISION-- WHICH, AFTER ALL, RECEIVED VERY LITTLE
ATTENTION IN THE PROLONGED DEBATES ON THE FLOOR OF THE SENATE-- HARDLY
JUSTIFIES AN EXPANSIVE READING OF THE OTHER PROVISIONS OF THE ACT. 

/9/  THE GOVERNMENT RELIES PRINCIPALLY ON SHAPIRO V. THOMPSON, 394
U.S. 618, 625 N. 4 (1969), AS SUPPORTING ITS CONSTRUCTION OF THE
GENERIC REFERENCE TO "STATUTES" IN 18 U.S.C. 3731 TO INCLUDE STATUTES
APPLICABLE ONLY WITHIN THE DISTRICT OF COLUMBIA.  SHAPIRO DEALT WITH 28
U.S.C. 2282, WHICH REQUIRES A THREE-JUDGE COURT TO HEAR REQUESTS FOR
INJUNCTIONS AGAINST THE ENFORCEMENT OF "ANY ACT OF CONGRESS" WHEN THE
GROUND FOR THE REQUESTED RELIEF IS THE ALLEGED UNCONSTITUTIONALITY OF
THE ACT.  DECISIONS OF SUCH THREE-JUDGE COURTS ARE, UNDER THE
CIRCUMSTANCES SET FORTH IN 29 U.S.C. 1253, DIRECTLY APPEALABLE TO THIS
COURT.  IN SHAPIRO, THE COURT NOTED AT LEAST ONE PRIOR INSTANCE WHERE
THE COURT HAD TAKEN JURISDICTION OVER A CASE INVOLVING A STATUTE
APPLICABLE ONLY WITHIN THE DISTRICT AND THEN STATED: "SECTION 2282
REQUIRES A THREE-JUDGE COURT TO HEAR A CHALLENGE TO THE
CONSTITUTIONALITY OF 'ANY ACT OF CONGRESS.'  WE SEE NO REASON TO MAKE
AN EXCEPTION FOR ACTS OF CONGRESS PERTAINING TO THE DISTRICT OF
COLUMBIA."  394 U.S.,AT 625 N. 4. 

THE SHAPIRO APPROACH IS OBVIOUSLY INAPPROPRIATE FOR THE PRESENT
PROBLEM.  FIRST, DESPITE THE GOVERNMENT'S ASSERTION TO THE CONTRARY,
SEE BRIEF FOR THE UNITED STATES 15, THE PHRASE "ANY ACT OF CONGRESS" IS
ARGUABLY BROADER THAN A GENERIC REFERENCE TO "STATUTES."  INDEED, THE
SHAPIRO COURT EXPLICITLY CHOSE TO EMPHASIZE THE PRESENCE OF THE WORD
"ANY" IN THE RELEVANT PORTION OF THAT STATUTE.  SECOND, WHILE AN
EXERCISE OF JURISDICTION IN A CASE WHERE JURISDICTION IS NOT CHALLENGED
IS OF LITTLE PRECEDENTIAL VALUE, THE COURT IN SHAPIRO STILL CHOSE TO
TAKE NOTE OF SUCH A PRIOR CASE; IN THE PRESENT CONTEXT, THIS COURT HAS
NEVER TAKEN JURISDICTION OF A SEC. 3731 APPEAL INVOLVING A STATUTE
APPLICABLE ONLY WITHIN THE DISTRICT. 

THIRD, AND MOST IMPORTANTLY, CONGRESS AT THE TIME OF THE THREE-JUDGE
COURT ACTS ALTERED THE PRINCIPLES OF BOTH ORIGINAL AND APPELLATE
JURISDICTION FOR THE SUBSTANTIVE CATEGORIES OF LITIGATION INVOLVED; THE
NEW PROCEDURAL ROUTES REFLECT CRUCIAL CONSIDERATIONS OF COMITY BETWEEN
SOVEREIGNS AND AMONG THE BRANCHES OF THE FEDERAL GOVERNMENT.  SEE
GENERALLY CURRIE, THE THREE-JUDGE DISTRICT COURT IN CONSTITUTIONAL
LITIGATION, 32 U.CHI.L.REV.  1 (1964).  THERE IS NO LEGISLATIVE HISTORY
SUPPORTING THE NOTION THAT THE NEW PROCEDURES WERE NARROWED TO
ALLEVIATE PARTICULAR DEFECTS OF INCONSISTENT CONSTITUTIONAL
INTERPRETATION DUE TO THE ABSENCE OF ANY APPELLATE ROUTE FOR THE
SUBSTANTIVE CATEGORIES OF CASES TO BE INCLUDED WITHIN THE ACT. 

IN THESE CIRCUMSTANCES, IT IS FAIR TO CONCLUDE THAT THE PRINCIPLE OF
STRICT CONSTRUCTION APPLICABLE TO SUCH STATUTES MUST YIELD TO THE
"INERT LANGUAGE" OF THE STATUTE.  CF. FLORIDA LIME GROWERS V. JACOBSEN,
362 U.S. 73, 92 (1960) (FRANKFURTER, J., DISSENTING). 

MR. JUSTICE STEWART, DISSENTING IN PART. 

I AGREE THAT WE HAVE JURISDICTION OF THIS APPEAL FOR THE REASONS
STATED IN PART I OF THE COURT'S OPINION. 

AS TO THE MERITS OF THIS CONTROVERSY, I SHARE AT LEAST SOME OF THE
CONSTITUTIONAL DOUBTS ABOUT THE ABORTION STATUTE EXPRESSED BY THE
DISTRICT COURT.  BUT, AS THIS COURT TODAY CORRECTLY POINTS OUT,
"STATUTES SHOULD BE CONSTRUED WHENEVER POSSIBLE SO AS TO UPHOLD THEIR
CONSTITUTIONALITY."  THE STATUTE BEFORE US CAN BE SO CONSTRUED, I
THINK, SIMPLY BY EXTENDING THE REASONING OF THE COURT'S OPINION TO ITS
LOGICAL CONCLUSION. 

THE STATUTE LEGALIZES ANY ABORTION PERFORMED "UNDER THE DIRECTION OF
A COMPETENT LICENSED PRACTIONER OF MEDICINE" IF "NECESSARY FOR THE
PRESERVATION OF THE MOTHER'S LIFE OR HEALTH."  UNDER THE STATUTE,
THEREFORE, THE LEGAL PRACTICE OF MEDICINE IN THE DISTRICT OF COLUMBIA
INCLUDES THE PERFORMING OF ABORTIONS.  FOR THE PRACTICE OF MEDICINE
CONSISTS OF DOING THOSE THINGS WHICH, IN THE JUDGMENT OF A PHYSICIAN,
ARE NECESSARY TO PRESERVE A PATIENT'S LIFE OR HEALTH.  AS THE COURT
SAYS, "WHETHER A PARTICULAR OPERATION IS NECESSARY FOR A PATIENT'S
PHYSICAL OR MENTAL HEALTH IS A JUDGMENT THAT PHYSICIANS ARE OBVIOUSLY
CALLED UPON TO MAKE ROUTINELY WHENEVER SURGERY IS CONSIDERED." 

IT FOLLOWS, I THINK, THAT WHEN A PHYSICIAN HAS EXERCISED HIS
JUDGMENT IN FAVOR OF PERFORMING AN ABORTION, HE HAS, BY HYPOTHESIS, NOT
VIOLATED THE STATUTE.  TO PUT IT ANOTHER WAY, I THINK THE QUESTION OF
WHETHER THE PERFORMANCE OF AN ABORTION IS "NECESSARY FOR THE . . .
MOTHER'S LIFE OR HEALTH" IS ENTRUSTED UNDER THE STATUTE EXCLUSIVELY TO
THOSE LICENSED TO PRACTICE MEDICINE, WITHOUT THE OVERHANDING RISK OF
INCURRING CRIMINAL LIABILITY AT THE HANDS OF A SECOND-GUESSING LAY
JURY.  I WOULD HOLD, THEREFORE, THAT "A COMPETENT LICENSED PRACTITIONER
OF MEDICINE" IS WHOLLY IMMUNE FROM BEING CHARGED WITH THE COMMISSION OF
A CRIMINAL OFFENSE UNDER THIS LAW. 

IT IS TRUE THAT THE STATUTE CAN BE CONSTRUED IN OTHER WAYS, AS MR.
JUSTICE DOUGLAS HAS MADE CLEAR.  BUT I WOULD GIVE IT THE READING I HAVE
INDICATED "IN THE CANDID SERVICE OF AVOIDING A SERIOUS CONSTITUTIONAL
DOUBT."  UNITED STATES V. RUMELY, 345 U.S. 41, 47. 

MR. JUSTICE BLACKMUN. 

ALTHOUGH I JOIN MR. JUSTICE HARLAN IN HIS CONCLUSION THAT THIS CASE
IS NOT PROPERLY HERE BY DIRECT APPEAL UNDER 18 U.S.C. 3731, A MAJORITY,
AND THUS THE COURT, HOLDS OTHERWISE.  THE CASE IS THEREFORE HERE AND
REQUIRES DECISION. 

THE FIVE JUSTICES CONSTITUTING THE MAJORITY, HOWEVER, ARE DIVIDED ON
THE MERITS.  ONE FEELS THAT D.C. CODE ANN. SEC. 22-201 (1967) LACKS THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS AND WOULD AFFIRM THE DISMISSAL
OF THE INDICTMENTS.  ONE WOULD HOLD THAT A LICENSED PHYSICIAN IS IMMUNE
FROM CHARGE UNDER THE STATUTE.  THREE WOULD HOLD THAT, PROPERLY
CONSTRUED, THE STATUTE IS NOT UNCONSTITUTIONALLY VAGUE AND THAT THE
DISMISSAL OF THE INDICTMENTS ON THAT GROUND WAS ERROR.     BECAUSE OF
THE INABILITY OF THE JURISDICTIONAL-ISSUE MAJORITY TO AGREE UPON THE
DISPOSITION OF THE CASE, I FEEL OBLIGATED NOT TO REMAIN SILENT AS TO
THE MERITS.  SEE SCREWS V. UNITED STATES, 325 U.S. 91, 134 (1945)
(ADDENDUM BY MR. JUSTICE RUTLEDGE); UNITED STATES V. JORN, 400 U.S.
470, 487-488 (1971) (STATEMENT OF BLACK AND BRENNAN, JJ.); MILLS V.
ALABAMA, 384 U.S. 214, 222-223 (1966) (SEPARATE OPINION OF HARLAN, J.);
KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369 U.S. 153, 174, 179 (1962)
(STEWART, J., CONCURRING IN PART, AND WARREN, C.J., DISSENTING). 
ASSUMING, AS I MUST IN THE LIGHT OF THE COURT'S DECISION, THAT THE
COURT DOES HAVE JURISDICTION OF THE APPEAL, I JOIN PART II OF MR.
JUSTICE BLACK'S OPINION AND THE JUDGMENT OF THE COURT. 

SAMUEL HUNTINGTON ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WILSON, JEROME M. FEIT, AND ROGER A. PAULEY. 

JOSEPH L. NELLIS AND NORMAN DORSEN ARGUED THE CAUSE FOR APPELLEE. 
WITH MR. NELLIS ON THE BRIEF WAS JOSEPH SITNICK. 

BRIEFS OF AMICI CURIAE WERE FILED BY DAVID W. LOUISELL FOR DR. BART
HEFFERNAN; BY ALFRED L. SCANLAN, THOMAS J. FORD, AND GARY R. ALEXANDER
FOR DR. WILLIAM F. COLLITON, JR., ET AL.; BY ROBERT E. DUNNE FOR ROBERT
L. SASSONE; BY MARILYN G. ROSE FOR THE NATIONAL LEGAL PROGRAM ON HEALTH
PROBLEMS OF THE POOR; BY SYLVIA S. ELLISON FOR HUMAN RIGHTS FOR WOMEN,
INC.; BY LOLA BOSWELL FOR THE JOINT WASHINGTON OFFICE FOR SOCIAL
CONCERN ET AL.; AND BY RALPH TEMPLE, MELVIN L. WULF, AND NORMA G. ZARKY
FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL.
..END :














EHLERT V. UNITED STATES, 402 U.S. 99 


       EHLERT V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 120.  ARGUED JANUARY 13, 1971-- DECIDED APRIL 21, 1971 


THE REFUSAL OF PETITIONER'S LOCAL BOARD TO REOPEN HIS CLASSIFICATION
AND PASS ON HIS CONSCIENTIOUS OBJECTOR CLAIM, MADE AFTER MAILING OF HIS
INDUCTION NOTICE BUT BEFORE INDUCTION, ON THE BASIS OF A SELECTIVE
SERVICE REGULATION THAT PERMITTED POST-INDUCTION NOTICE REOPENING ONLY
FOR A "CHANGE IN THE REGISTRANT'S STATUS RESULTING FROM CIRCUMSTANCES
OVER WHICH THE REGISTRANT HAD NO CONTROL," HELD NOT UNREASONABLE AS A
LIMITATION ON THE TIME WITHIN WHICH A LOCAL BOARD MUST ACT ON SUCH A
CLAIM, IN LIGHT OF THE GOVERNMENT'S ASSURANCE THAT ONE WHOSE BELIEFS
ASSERTEDLY CRYSTALLIZE AFTER MAILING OF AN INDUCTION NOTICE WILL HAVE
FULL OPPORTUNITY TO OBTAIN AN IN-SERVICE DETERMINATION OF HIS CLAIM
WITHOUT HAVING TO PERFORM COMBATANT TRAINING OR SERVICE PENDING SUCH
DISPOSTION.  PP. 101-107. 

422 F.2D 332, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, HARLAN, WHITE, AND BLACKMUN, JJ., JOINED.  DOUGLAS,
J., FILED A DISSENTING OPINION, POST, P. 108.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED, POST, P. 119. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER A SELECTIVE SERVICE LOCAL BOARD
MUST REOPEN THE CLASSIFICATION OF A REGISTRANT WHO CLAIMS THAT HIS
CONSCIENTIOUS OBJECTION TO WAR IN ANY FORM CRYSTALLIZED BETWEEN THE
MAILING OF HIS NOTICE TO REPORT FOR INDUCTION AND HIS SCHEDULED
INDUCTION DATE.  THE PETITIONER BEFORE US MADE NO CLAIM TO
CONSCIENTIOUS OBJECTOR STATUS UNTIL AFTER HE RECEIVED HIS INDUCTION
NOTICE.  BEFORE THE INDUCTION DATE, HE THEN WROTE TO HIS LOCAL BOARD
AND ASKED TO BE ALLOWED TO PRESENT HIS CLAIM.  HE REPRESENTED THAT HIS
VIEWS HAD MATURED ONLY AFTER THE INDUCTION NOTICE HAD MADE IMMEDIATE
THE PROSPECT OF MILITARY SERVICE.  AFTER SELECTIVE SERVICE PROCEEDINGS
NOT MATERIAL HERE, THE PETITIONER'S LOCAL BOARD NOTIFIED HIM THAT IT
HAD DECLINED TO REOPEN HIS CLASSIFICATION BECAUSE THE CRYSTALLIZATION
OF HIS CONSCIENTIOUS OBJECTION DID NOT CONSTITUTE THE "CHANGE IN THE
REGISTRANT'S STATUS RESULTING FROM CIRCUMSTANCES OVER WHICH THE
REGISTRANT HAD NO CONTROL" REQUIRED FOR POST-INDUCTION NOTICE REOPENING
UNDER A SELECTIVE SERVICE REGULATION.  /1/  THE PETITIONER THEN REFUSED
TO SUBMIT TO INDUCTION, AND A GRAND JURY IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA INDICTED HIM FOR
VIOLATION OF THE MILITARY SELECTIVE SERVICE ACT OF 1967.  /2/ 

THE PETITIONER WAIVED TRIAL BY JURY, AND THE DISTRICT COURT, HOLDING
THAT RIPENING OF CONSCIENTIOUS OBJECTOR VIEWS COULD NOT BE A
CIRCUMSTANCE OVER WHICH A REGISTRANT HAD NO CONTROL, FOUND THE
PETITIONER GUILTY.  THE CONVICTION WAS AFFIRMED BY THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT, SITTING EN BANC, AND WE GRANTED
CERTIORARI, 397 U.S. 1074, TO RESOLVE A CONFLICT AMONG THE CIRCUITS
OVER THE INTERPRETATION OF THE GOVERNING SELECTIVE SERVICE REGULATION. 
/3/ 

A REGULATION EXPLICITLY PROVIDING THAT NO CONSCIENTIOUS OBJECTOR
CLAIM COULD BE CONSIDERED BY A LOCAL BOARD UNLESS FILED BEFORE THE
MAILING OF AN INDUCTION NOTICE WOULD, WE THINK, BE PERFECTLY VALID,
PROVIDED THAT NO INDUCTEE COULD BE ORDERED TO COMBATANT TRAINING OR
SERVICE BEFORE A PROMPT, FAIR, AND PROPER IN-SERVICE DETERMINATION OF
HIS CLAIM.  THE MILITARY SELECTIVE SERVICE ACT OF 1967 CONFERS ON THE
PRESIDENT AUTHORITY "TO PRESCRIBE THE NECESSARY RULES AND REGULATIONS
TO CARRY OUT THE PROVISIONS OF THIS TITLE . . . ."  50 U.S.C. APP.
460(B)(1).  TO READ OUT OF THE AUTHORITY DELEGATED BY THIS SECTION THE
POWER TO MAKE REASONABLE TIMELINESS RULES WOULD RENDER IT IMPOSSIBLE TO
REQUIRE THE SUBMISSION, BEFORE MAILING OF AN INDUCTION NOTICE, OF A
CLAIM MATURED BEFORE THAT TIME.  THE SYSTEM NEEDS AND HAS THE POWER TO
MAKE REASONABLE TIMELINESS RULES FOR THE PRESENTATION OF CLAIMS TO
EXEMPTION FROM SERVICE.  /4/ 

A REGULATION BARRING POST-INDUCTION NOTICE PRESENTATION OF
CONSCIENTIOUS OBJECTOR CLAIMS, WITH THE PROVISO MENTIONED, WOULD BE
ENTIRELY REASONABLE AS A TIMELINESS RULE.  SELECTIVE SERVICE BOARDS
MUST ALREADY HANDLE PRENOTICE CLAIMS, AND THE MILITARY HAS PROCEDURES
FOR PROCESSING CONSCIENTIOUS OBJECTOR CLAIMS THAT MATURE IN THE
SERVICE.  ALLOCATION OF THE BURDEN OF HANDLING CLAIMS THAT FIRST ARISE
IN THE BRIEF PERIOD BETWEEN NOTICE AND INDUCTION SEEMS WELL WITHIN THE
DISCRETION OF THOSE CONCERNED WITH CHOOSING THE MOST FEASIBLE MEANS FOR
OPERATING THE SELECTIVE SERVICE AND MILITARY SYSTEMS.  FURTHER,
REQUIRING IN-SERVICE PRESENTATION OF POST-NOTICE CLAIMS WOULD DEPRIVE
NO REGISTRANT OF ANY LEGAL RIGHT AND WOULD NOT LEAVE A "NO MAN'S LAND"
TIME PERIOD IN WHICH A CLAIM THEN ARISING COULD NOT BE PRESENTED IN ANY
FORUM. 

THE ONLY UNCONDITIONAL RIGHT CONFERRED BY STATUTE UPON CONSCIENTIOUS
OBJECTORS IS EXEMPTION FROM COMBATANT TRAINING AND SERVICE.  /5/  THE
SELECTIVE SERVICE LAW, INDEED, PROVIDES FOR NONCOMBATANT TRAINING AND
SERVICE FOR THOSE OBJECTORS TO WHOSE INDUCTION THERE IS NO OBSTACLE. 
/6/  THE RIGHT TO CIVILIAN SERVICE "IN LIEU OF . . . INDUCTION" ARISES
ONLY IF A REGISTRANT'S "CLAIM IS SUSTAINED BY THE LOCAL BOARD."  IT
DOES NOT FOLLOW, GIVEN THE POWER TO MAKE REASONABLE TIMELINESS RULES,
THAT A REGISTRANT HAS AN UNCONDITIONAL RIGHT TO PRESENT HIS CLAIM TO
THE LOCAL BOARD BEFORE INDUCTION, ANY MORE THAN HE HAS SUCH A RIGHT
AFTER INDUCTION.  CONGRESS SEEMS RATHER CAREFULLY TO HAVE CONFINED THE
UNCONDITIONAL RIGHT CREATED BY THE STATUTE TO IMMUNITY FROM COMBATANT
TRAINING AND SERVICE.  CONSEQUENTLY, REQUIRING THOSE WHOSE
CONSCIENTIOUS OBJECTION HAS NOT CRYSTALLIZED UNTIL AFTER THEIR
INDUCTION NOTICES TO PRESENT THEIR CLAIMS AFTER INDUCTION WOULD WORK NO
DEPRIVATION OF STATUTORY RIGHTS, SO LONG AS THE CLAIMANTS WERE NOT
SUBJECTED TO COMBATANT TRAINING OR SERVICE UNTIL THEIR CLAIMS HAD BEEN
ACTED UPON. 

THAT THOSE WHOSE VIEWS ARE LATE IN CRYSTALLIZING CAN BE REQUIRED TO
WAIT, HOWEVER, DOES NOT MEAN THEY CAN BE DEPRIVED OF A FULL AND FAIR
OPPORTUNITY TO PRESENT THE MERITS OF THEIR CONSCIENTIOUS OBJECTOR
CLAIMS FOR CONSIDERATION UNDER THE SAME SUBSTANTIVE CRITERIA THAT MUST
GUIDE THE SELECTIVE SERVICE SYSTEM.  SEE WELSH V. UNITED STATES, 398
U.S. 333.  THE VERY ASSERTION OF CRYSTALLIZATION JUST BEFORE INDUCTION
MIGHT CAST DOUBT UPON THE GENUINENESS OF SOME CLAIMS, BUT THERE IS NO
REASON TO SUPPOSE THAT SUCH CLAIMS COULD NOT BE EVERY BIT AS BONA FIDE
AND SUBSTANTIAL AS THE CLAIMS OF THOSE WHOE CONSCIENTIOUS OBJECTION
RIPENS BEFORE NOTICE OR AFTER INDUCTION.  IT WOULD BE WHOLLY ARBITRARY
TO DENY THE LATE CRYSTALLIZER A FULL OPPORTUNITY TO OBTAIN A
DETERMINATION ON THE MERITS OF HIS CLAIM TO EXEMPTION FROM COMBATANT
TRAINING AND SERVICE JUST BECAUSE HIS CONSCIENTIOUS SCRUPLES TOOK SHAPE
DURING A BRIEF PERIOD IN LEGAL LIMBO.  /7/  A SYSTEM IN WHICH SUCH
PERSONS COULD PRESENT THEIR CLAIMS AFTER INDUCTION, WITH THE ASSURANCE
OF NO COMBATANT TRAINING OR SERVICE BEFORE OPPORTUNITY FOR A RULING ON
THE MERITS, WOULD BE WHOLLY CONSISTENT WITH THE CONSCIENTIOUS OBJECTOR
STATUTE.  /8/ 

THE REGULATION WE MUST INTERPRET IN THIS CASE DOES NOT UNAMBIGUOUSLY
CREATE SUCH A SYSTEM.  RATHER, IT BARS POST-NOTICE REOPENING "UNLESS
THE LOCAL BOARD FIRST SPECIFICALLY FINDS THERE HAS BEEN A CHANGE IN THE
REGISTRANT'S STATUS RESULTING FROM CIRCUMSTANCES OVER WHICH THE
REGISTRANT HAD NO CONTROL."  IT IS CLEAR THAT THE REGULATION WAS MEANT
TO COVER AT LEAST SUCH NONVOLITIONAL CHANGES AS INJURY TO THE
REGISTRANT OR DEATH IN HIS FAMILY MAKING HIM THE SOLE SURVIVING SON. 
THE GOVERNMENT URGES THAT THE REGULATION BE CONFINED TO JUST SUCH
"OBJECTIVELY IDENTIFIABLE" AND "EXTRANEOUS" EVENTS AND CIRCUMSTANCES. 
THE PETITIONER CONTENDS THAT POST-NOTICE CRYSTALLIZATION OF
CONSCIENTIOUS OBJECTION IS BOTH A "CIRCUMSTANCE" WITHIN THE MEANING OF
THE REGULATION AND ONE OVER WHICH THE REGISTRANT HAS NO CONTROL. 

WE NEED NOT TAKE SIDES IN THE SOMEWHAT THEOLOGICAL DEBATES ABOUT THE
NATURE OF "CONTROL" OVER ONE'S OWN CONSCIENCE THAT THE PHRASING OF THIS
REGULATION HAS FORCED UPON SO MANY FEDERAL COURTS.  RATHER, SINCE THE
MEANING OF THE LANGUAGE IS NOT FREE FROM DOUBT, WE ARE OBLIGATED TO
REGARD AS CONTROLLING A REASONABLE, CONSISTENTLY APPLIED ADMINISTRATIVE
INTERPRETATION IF THE GOVERNMENT'S BE SUCH.  IMMIGRATION SERVICE V.
STANISIC, 395 U.S. 62, 72; THORPE V. HOUSING AUTHORITY, 393 U.S. 268,
276; UDALL V. TALLMAN, 380 U.S. 1, 16-17; BOWLES V. SEMINOLE ROCK &
SAND CO., 325 U.S. 410, 413-414. 

THE GOVERNMENT ARGUES FOR AN INTERPRETATION IDENTICAL IN EFFECT WITH
THE UNAMBIGUOUS RULE HYPOTHECATED ABOVE, WHICH, WE HAVE SAID, WOULD
CLEARLY BE A REASONABLE TIMELINESS RULE, CONSISTENT WITH THE
CONSCIENTIOUS OBJECTOR STATUTE.  THE GOVERNMENT'S INTERPRETATION IS A
PLAUSIBLE CONSTRUCTION OF THE LANGUAGE OF THE ACTUAL REGULATION, THOUGH
ADMITTEDLY NOT THE ONLY POSSIBLE ONE.  GIVEN THE AMBIGUITY OF THE
LANGUAGE, IT IS WHOLLY RATIONAL TO CONFINE IT TO THOSE "OBJECTIVELY
IDENTIFIABLE" AND "EXTRANEOUS" CIRCUMSTANCES THAT ARE MOST LIKELY TO
PROVE MANAGEABLE WITHOUT PUTTING UNDUE BURDENS ON THE ADMINISTRATION OF
THE SELECTIVE SERVICE SYSTEM.  IT APPEARS, MOREOVER, THAT THIS POSITION
HAS BEEN CONSISTENTLY URGED BY THE GOVERNMENT IN LITIGATION WHEN IT WAS
NOT FORECLOSED BY ADVERSE LOCAL PRECEDENT. 

THERE REMAINS FOR CONSIDERATION WHETHER THE CONDITIONS FOR THE
VALIDITY OF SUCH A RULE, DISCUSSED ABOVE, ARE MET IN PRACTICE.  IT
APPEARS UNDISPUTED THAT WHEN AN INDUCTEE PRESENTS A PRIMA FACIE CLAIM
OF CONSCIENTIOUS OBJECTION THAT COMPLIES WITH TIMELINESS RULES FOR IN
SERVICE COGNIZABILITY, HE IS GIVEN DUTY INVOLVING THE MINIMUM
PRACTICABLE CONFLICT WITH HIS ASSERTED BELIEFS.  /9/  IT IS THUS
EVIDENT THAT ARMED FORCES POLICY SUBSTANTIALLY MEETS THE REQUIREMENT OF
NO COMBAT TRAINING OR SERVICE BEFORE AN OPPORTUNITY FOR A RULING ON THE
CLAIM. 

AS FOR THE ABSENCE OF ANY NO MAN'S LAND, THE PERTINENT MILITARY
REGULATIONS ARE SOMEWHAT INCONSISTENT IN THEIR PHRASING, PERHAPS
BECAUSE OF THE SHARP DIVISION AMONG THE COURTS OF APPEALS.  THEY
CONTAIN LANGUAGE APPEARING TO RECOGNIZE THE OBLIGATION OF THE SERVICE
TO HEAR THE CLAIMS OF THOSE WHOSE ALLEGED CONSCIENTIOUS OBJECTION HAS
CRYSTALLIZED BETWEEN NOTICE AND INDUCTION, BUT THEY ALSO CONTAIN
FORMULATIONS SEEMING TO LOOK THE OTHER WAY.  /10/  WE ARE ASSURED,
HOWEVER, BY A LETTER INCLUDED IN THE BRIEFS IN THIS CASE FROM THE
GENERAL COUNSEL OF THE DEPARTMENT OF THE ARMY TO THE DEPARTMENT OF
JUSTICE, THAT PRESENT PRACTICE ALLOWS PRESENTATION OF SUCH CLAIMS, AND
THAT THERE THUS EXISTS NO POSSIBILITY THAT LATE CRYSTALLIZERS WILL FIND
THEMSELVES WITHOUT A FORUM IN WHICH TO PRESS THEIR CLAIMS.  /11/  OUR
CONCLUSION IN THIS CASE IS BASED UPON THAT ASSURANCE.  /12/  FOR IF,
CONTRARY TO THAT ASSURANCE, A SITUATION SHOULD ARISE IN WHICH NEITHER
THE LOCAL BOARD NOR THE MILITARY HAD MADE AVAILABLE A FULL OPPORTUNITY
TO PRESENT A PRIMA FACIE CONSCIENTIOUS OBJECTION CLAIM FOR
DETERMINATION UNDER ESTABLISHED CRITERIA, SEE WELSH V. UNITED STATES,
SUPRA, A WHOLLY DIFFERENT CASE WOULD BE PRESENTED. 

GIVEN THE PREVAILING INTERPRETATION OF THE ARMY REGULATION, WE HOLD
THAT THE COURT OF APPEALS DID NOT MISCONSTRUE THE SELECTIVE SERVICE
REGULATION IN HOLDING THAT IT BARRED PRESENTATION TO THE LOCAL BOARD OF
A CLAIM THAT ALLEGEDLY AROSE BETWEEN MAILING OF A NOTICE OF INDUCTION
AND THE SCHEDULED INDUCTION DATE.  ACCORDINGLY THE JUDGMENT OF THE
COURT OF APPEALS FOR THE NINTH CIRCUIT IS

              AFFIRMED. 

/1/  32 CFR 1625.2 (1971) PROVIDES, IN PERTINENT PART: 

"(THE CLASSIFICATION OF A REGISTRANT SHALL NOT BE REOPENED AFTER THE
LOCAL BOARD HAS MAILED TO SUCH REGISTRANT AN ORDER TO REPORT FOR
INDUCTION . . . OR AN ORDER TO REPORT FOR CIVILIAN WORK AND STATEMENT
OF EMPLOYER . . . UNLESS THE LOCAL BOARD FIRST SPECIFICALLY FINDS THERE
HAS BEEN A CHANGE IN THE REGISTRANT'S STATUS RESULTING FROM
CIRCUMSTANCES OVER WHICH THE REGISTRANT HAD NO CONTROL." 

/2/  MILITARY SELECTIVE SERVICE ACT OF 1967, SEC. 12(A), 50 U.S.C.
APP. 462(A) (1964 ED., SUPP. V), PROVIDES IN PERTINENT PART: 

"(ANY PERSON . . . WHO . . . REFUSES . . . SERVICE IN THE ARMED FORCES
. . . OR 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 . . . 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 . . . ." 

/3/  IN ACCORD WITH THE POSITION OF THE NINTH CIRCUIT, SEE UNITED
STATES V. AL-MAJIED MUHAMMAD, 364 F.2D 223, 224 (CA4); DAVIS V. UNITED
STATES, 374 F.2D 1, 4 (CA5); UNITED STATES V. TAYLOR, 351 F.2D 228, 230
(CA6) (SEMBLE). 

CONTRA, UNITED STATES V. GEAREY, 368 F.2D 144, 150 (CA 2), 379 F.2D
915 (AFTER REMAND), CERT. DENIED, 389 U.S. 959; SCOTT V. COMMANDING
OFFICER, 431 F.2D 1132, 1136 (CA3); UNITED STATES V. NORDLOF, 440 F.2D
840 (CA7); KEENE V. UNITED STATES, 266 F.2D 378, 384 (CA10); SWIFT V.
DIRECTOR OF SELECTIVE SERVICE, -- U.S.APP.D.C.-- , 448 F.2D 1147.  SEE
ALSO UNITED STATES V. STOPPELMAN, 406 F.2D 127, 131 N. 7 (CA1)
(DICTUM), CERT. DENIED, 395 U.S. 981. 

/4/  THE POWER OF THE SELECTIVE SERVICE SYSTEM TO SET REASONABLE
TIME LIMITS FOR PRESENTATION OF CLAIMS, WITH THE PENALTY OF FORFEITURE
FOR NONCOMPLIANCE, SEEMS NEVER TO HAVE BEEN QUESTIONED BY ANY COURT. 
SEE, E.G., UNITED STATES V. GEAREY, 368 F.2D 144, 149 AND N. 9 (CA2). 

/5/  THE STATUTE ON CONSCIENTIOUS OBJECTION BEGINS: 

"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."  MILITARY SELECTIVE SERVICE ACT OF 1967, SEC. 6(J), 81 STAT.
104, 50 U.S.C. APP. 456(J) (1964 ED., SUPP. V). 

/6/  IBID.: 

"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, IN LIEU OF SUCH INDUCTION,
BE ORDERED BY HIS LOCAL BOARD, SUBJECT TO SUCH REGULATIONS AS THE
PRESIDENT MAY PRESCRIBE, TO PERFORM FOR A PERIOD EQUAL TO THE PERIOD
PRESCRIBED IN (MILITARY SELECTIVE SERVICE ACT OF 1967, SEC. 4(B), 50
U.S.C. APP. 454(B)) SUCH CIVILIAN WORK CONTRIBUTING TO THE MAINTENANCE
OF THE NATIONAL HEALTH, SAFETY, OR INTEREST AS THE LOCAL BOARD PURSUANT
TO PRESIDENTIAL REGULATIONS MAY DEEM APPROPRIATE . . . ."     /7/
SINCE SUCH A "NO MAN'S LAND" WOULD BE INTOLERABLE, OUR DECISION TODAY
SIMPLY INVOLVES SETTLING IN WHICH FORUM LATE CRYSTALLIZERS MUST HAVE AN
OPPORTUNITY FOR A RULING ON THE MERITS.  WHETHER THEY MUST HAVE SUCH AN
OPPORTUNITY AT ALL CANNOT BE OPEN TO QUESTION.  OF COURSE, A CLAIMANT
WHO, AFTER INDUCTION, DECLINED TO UTILIZE AVAILABLE ADMINISTRATIVE
PROCEDURES OR WHO FAILED TO OBSERVE REASONABLE AND PROPERLY PUBLICIZED
TIME CUTOFFS MIGHT FORFEIT HIS CLAIM. 

/8/  THERE IS NO REASON TO SUPPOSE THAT A SELECTIVE SERVICE LOCAL
BOARD, FACED WITH THE NEED TO FILL ITS MONTHLY QUOTAS, WOULD BE MORE
SENSITIVE IN APPLYING THE LEGAL STANDARDS THAT GOVERN ALL CONSCIENTIOUS
OBJECTOR CLAIMS THAN WOULD THE ARMY, WHOSE MISSION IS TO TRAIN
INDUCTEES AS MEMBERS OF MILITARY UNITS OF MAXIMUM EFFECTIVENESS AND
MORALE. 

/9/  DEPARTMENT OF DEFENSE DIRECTIVE NO. 1300.6, SEC. VI B (MAY 10,
1968): 

"WITH RESPECT TO PERSONS WHO HAVE ALREADY SERVED A PORTION OF THEIR
OBLIGATED SERVICE WHO REQUEST DISCHARGE OR NON-COMBATANT SERVICE FOR
CONSCIENTIOUS OBJECTION, THE FOLLOWING ACTIONS WILL BE TAKEN:

        .          .     .          . 

"2.  PENDING DECISION ON THE CASE AND TO THE EXTENT PRACTICABLE THE
PERSON WILL BE EMPLOYED IN DUTIES WHICH INVOLVE THE MINIMUM CONFLICT
WITH HIS ASSERTED BELIEFS . . . ." 

ARMY REGULATION NO. 635-20, PARA. 6A (JULY 31, 1970): 

"(INDIVIDUALS WHO HAVE SUBMITTED FORMAL APPLICATIONS . . . FOR
DISCHARGE BASED ON CONSCIENTIOUS OBJECTION WILL BE RETAINED IN THEIR
UNITS AND ASSIGNED DUTIES PROVIDING THE MINIMUM PRACTICABLE CONFLICT
WITH THEIR ASSERTED BELIEFS PENDING A FINAL DECISION ON THEIR
APPLICATIONS.  IN THE CASE OF TRAINEES, THIS MEANS THAT THEY WILL NOT
BE REQUIRED TO TRAIN IN THE STUDY, USE, OR HANDLING OF ARMS OR WEAPONS
. . . ." 

/10/  SEE ARMY REGULATION NO. 635-20, ARA 3: 

"A.  CONSIDERATION WILL BE GIVEN TO REQUESTS FOR SEPARATION BASED ON
BONA FIDE CONSCIENTIOUS OBJECTION TO PARTICIPATION IN WAR, IN ANY FORM,
WHEN SUCH OBJECTION DEVELOPS SUBSEQUENT TO ENTRY INTO THE MILITARY
SERVICE. 

"B.  FEDERAL COURTS HAVE HELD THAT A CLAIM TO EXEMPTION FROM
MILITARY SERVICE UNDER SELECTIVE SERVICE LAWS MUST BE INTERPOSED PRIOR
TO NOTICE OF INDUCTION, AND FAILURE TO MAKE TIMELY CLAIM FOR EXEMPTION
CONSTITUTES WAIVER OF THE RIGHT TO CLAIM . . . . REQUESTS FOR DISCHARGE
AFTER ENTERING MILITARY SERVICE WILL NOT BE FAVORABLY CONSIDERED WHEN-
 

"(1) BASED ON CONSCIENTIOUS OBJECTION WHICH EXISTED, BUT WHICH WAS
NOT CLAIMED PRIOR TO NOTICE OF INDUCTION, ENLISTMENT OR APPOINTEMENT." 

SEE ALSO DEPARTMENT OF DEFENSE DIRECTIVE NO. 1300.6, SEC. IV B 2. 

/11/  "YOU ALSO ASKED WHETHER THE ARMY ALLOWS A SOLDIER TO FILE FOR
DISCHARGE IN INSTANCES WHERE HIS CONSCIENTIOUS OBJECTOR VIEWS ARE FIXED
AFTER NOTICE OF INDUCTION BUT PRIOR TO ENTRY INTO THE MILITARY
SERVICE.  PRESENT PRACTICE GRANTS THE SOLDIER THE OPPORTUNITY TO FILE
IN SUCH CASES." 

THE LETTER ADDITIONALLY EXPLAINS THE COMPOSITION AND OPERATION OF
THE ARMY I-O CONSCIENTIOUS OBJECTOR REVIEW BOARD, WHICH HAS THE
RESPONSIBILITY OF RULING ON APPLICATIONS FOR CONSCIENTIOUS OBJECTOR
DISCHARGES.  THE BOARD IS COMPOSED OF A SENIOR OFFICER, AN OFFICER IN
THE JUDGE ADVOCATE GENERAL CORPS, A CHAPLAIN, AND A MEDICAL CORPS
OFFICER.  ONLY TWO VOTES ARE REQUIRED TO APPROVE AN APPLICATION. 

/12/  THE SAME LETTER FROM THE GENERAL COUNSEL OF THE DEPARTMENT OF
THE ARMY REPORTS THAT THE IDENTICAL INTERPRETATION PREVAILED IN 1965,
WHEN THE PETITIONER FIRST WAS ORDERED TO REPORT FOR INDUCTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE RATHER STUFFY JUDICIAL NOTION THAT AN INDUCTEE'S REALIZATION
THAT HE HAS A "CONSCIENTIOUS" OBJECTION TO WAR IS NOT A CIRCUMSTANCE
OVER WHICH HE HAS "NO CONTROL" WITHIN THE MEANING OF THE REGULATION /1/
IS BELIED BY EXPERIENCE.  SAUL OF TARSUS WOULD BE A GOOD WITNESS:
/2/ 

     "NOW AS HE JOURNEYED HE APPROACHED DAMASCUS, AND SUDDENLY A

  LIGHT FROM HEAVEN FLASHED ABOUT HIM.  AND HE FELL TO THE GROUND

  AND HEARD A VOICE SAYING TO HIM, 'SAUL, SAUL, WHY DO YOU

  PERSECUTE ME?'  AND HE SAID, 'WHO ARE YOU, LORD?'  AND HE SAID,

  'I AM JESUS, WHOM YOU ARE PERSECUTING; BUT RISE AND ENTER THE

CITY, AND YOU WILL BE TOLD WHAT YOU ARE TO DO.'" 

THE STORIES OF SUDDEN CONVERSION ARE LEGION IN RELIGIOUS HISTORY;
AND THERE IS NO REASON WHY THE SELECTIVE SERVICE BOARDS SHOULD NOT
RECOGNIZE THEM, DEAL WITH THEM, AND, IF SINCERE, ACT ON THEM EVEN
THOUGH THEY COME AFTER NOTICE OF INDUCTION HAS BEEN RECEIVED. 

THE COURT HOLDS THAT THE PROPER REMEDY IS IN-SERVICE PROCESSING OF
THESE CLAIMS.  THAT IS TO SAY, THE CLAIMS THAT COME SO LATE, EVEN
THOUGH THEY COME PRIOR TO INDUCTION, ARE TO BE PROCESSED BY MILITARY
RATHER THAN BY CIVILIAN PERSONNEL. 

THIS CONCLUSION IS NOT REQUIRED BY THE REGULATION FOR, AS I HAVE
SAID, SUDDEN CONVERSION IS A COMMONPLACE IN RELIGIOUS EXPERIENCES.  AND
WE DEAL HERE WITH RELIGIOUS, ETHICAL, PHILOSOPHICAL ATTITUDES THAT ARE
COMMONLY SUMMARIZED IN CAPSULE FORM BY REFERENCE TO "CONSCIENCE." 

IT IS THEREFORE A TOUR DE FORCE FOR THE COURT TO SAY THAT IN-SERVICE
PROCESSING BY THE MILITARY IS REQUIRED.  CERTAINLY THAT RESULT IS NOT
MANDATED BY THE ACT.  /3/  SINCE IT IS NOT, WE HAVE A CHOICE IN
CONSTRUCTION WHICH REALLY INVOLVES A CHOICE OF POLICY.  FACED WITH THAT
CHOICE WE SHOULD NOT HESITATE TO LEAVE THESE MATTERS TO CIVILIAN
AUTHORITIES. 

CHIEF JUSTICE STONE, BEFORE COMING TO THIS BENCH, SERVED WITH TWO
OTHER LAWYERS NAMED BY PRESIDENT WILSON TO SCREEN CONSCIENTIOUS
OBJECTORS IN WORLD WAR I. ONE OF THE THREE WAS IN THE MILITARY, THE
OTHER TWO WERE CIVILIANS.  IN THE ACCOUNT HE WROTE, HE SAID:  /4/ 

     "(IT WAS THE RELATIVELY SMALL RESIDUE OF NON-RELIGIOUS

  OBJECTORS WHO BROUGHT TO THE BOARD ITS REAL PERPLEXITIES.  WHILE

  CONSCIENCE IS COMMONLY ASSOCIATED WITH RELIGIOUS CONVICTIONS, ALL

  EXPERIENCE TEACHES US THAT THE SUPREME MORAL IMPERATIVE WHICH

  SOMETIMES ACTUATES MEN TO CHOOSE ONE COURSE OF ACTION IN

  PREFERENCE TO ANOTHER AND TO ADHERE TO IT AT ALL COSTS MAY BE

  DISSOCIATED FROM WHAT IS COMMONLY RECOGNIZED AS RELIGIOUS

  EXPERIENCE.  THE PRESIDENT'S ORDER EXPRESSLY RECOGNIZED THAT

SCRUPLES AGAINST PARTICIPATING IN WAR MIGHT BE CONSCIENTIOUS

  ALTHOUGH NOT RELIGIOUS.  HOW TO DETECT THE PRESENCE OF SUCH

  SCRUPLES AND TO DISTINGUISH THEM FROM THE MERE EXTREMIST SUPPORT

  OF MORE OR LESS NOVEL SOCIAL OR POLITICAL THEORIES AND FROM MERE

  INDIVIDUALISTIC RESISTANCE TO THE WILL OF THE MAJORITY, SUCH AS

  ONE SOMETIMES SEES IN THE PETULANT DISOBEDIENCE OF AN

  ILL-DISCIPLINED CHILD, WAS THE DIFFICULT TASK." 

THE MIND OF THE MILITARY HAS REACTED MORE VIOLENTLY TO THE
CONSCIENTIOUS OBJECTOR THAN THE MIND OF THE PRIEST OR OTHER CIVILIAN. 

THE STORY OF IN-SERVICE PROCESSING OF THESE CLAIMS IN WORLD WAR I IS
AN UNPLEASANT ONE: 

"THE PHRASE 'WELL-RECOGNIZED RELIGIOUS SECT' WAS GIVEN THE MOST
RIGOROUS INTERPRETATION, AND ANY WHO BASED CONSCIENTIOUS OBJECTIONS ON
POLITICAL RATHER THAN RELIGIOUS FOUNDATIONS GOT SHORT SHRIFT.  SUCH
OBJECTORS WERE EITHER 'SHOT TO DEATH BY MUSKETRY,' 'IMPRISONED FOR LONG
TERMS BY COURT MARTIAL,' OR SUBJECTED TO INDIGNITIES AND PHYSICAL
VIOLENCE 'BY THEIR MORE PATRIOTIC FELLOWS.'"  /5/ 

ANOTHER ACCOUNT /6/  IS SUBSTANTIALLY THE SAME: 

     "IN MILITARY CAMP AND PRISON ALIKE, OBJECTORS WERE OFTEN

  SUBJECTED TO INDIGNITIES AND TO PHYSICAL CRUELTY.  SOME WERE

  BEATEN; OTHERS WERE HUNG BY THEIR FINGERS TO THE DOORS OF THEIR

  CELLS IN SUCH A WAY THAT THEIR FEET BARELY TOUCHED THE FLOOR.  IN

  ONE CASE, AN OBJECTOR WHO REFUSED TO DON THE ARMY UNIFORM WAS

  KEPT IN A DAMP CELL, WHERE HE CONTRACTED PNEUMONIA AND DIED.  HIS

  DEAD BODY WAS THEN DRESSED IN THE UNIFORM THAT IN LIFE HE HAD

  SPURNED, AND, THUS ATTIRED, WAS SENT HOME TO HIS FAMILY.  A

NUMBER OF OBJECTORS AMONG THE ABSOLUTISTS WENT ON HUNGER STRIKES

  AND HAD TO BE FED FORCIBLY." 

ACCORDING TO THE ACCOUNTS, THE TREATMENT OF CONSCIENTIOUS OBJECTORS
IN WORLD WAR II WAS NOT AS SEVERE AS IN WORLD WAR I. BUT THE MAIN
DISCIPLINARY DEVICE WAS TO GIVE THE MAN AN ORDER AND THEN COURT-MARTIAL
HIM FOR FAILURE TO OBEY THE ORDER.  "HERE PUNISHMENT VARIED, BUT COMMON
SENTENCES FOR OBJECTORS WERE FIVE TO TEN YEARS, ALTHOUGH THESE WERE NOT
INFREQUENTLY REDUCED ON REVIEW BY WASHINGTON.  SENTENCES ON THE WHOLE
WERE MUCH LIGHTER THAN THOSE IMPOSED BY COURTS-MARTIAL DURING THE FIRST
WORLD WAR BUT MORE SEVERE, ON THE AVERAGE, THAN THOSE METED OUT BY
CIVIL COURTS DURING THE SECOND WORLD WAR.  SENTENCES OF GENERAL COURTS
MARTIAL WERE SERVED IN THE SEVERAL DISCIPLINARY BARRACKS OF THE ARMY,
BUT IN SOME INSTANCES OBJECTORS WERE FIRST SENT TO A 'REHABILITATION
CENTER,' WHERE THE ARMY GAVE PRISONERS A SECOND CHANCE TO 'REFORM'; IF
'REFORMATION' DID NOT TAKE PLACE, THEY SERVED OUT THEIR SENTENCES IN
THE DISCIPLINARY BARRACKS.  ARMY REGULATIONS PROVIDED FOR PERIODIC AND
AUTOMATIC CLEMENCY REVIEWS, THE FIRST DURING THE INITIAL SIX MONTHS OF
THE SENTENCE AND SUBSEQUENT REVIEWS ONCE EACH YEAR."  /7/ 

I HAVE PLACED IN THE APPENDIX TO THIS DISSENT A SUMMARY OF A RECENT
(1969) RECORD IN ONE MILITARY CENTER, SHOWING HOW ONE CONSCIENTIOUS
OBJECTOR IN JONES V. LEMOND, 396 U.S. 1227, WAS TREATED. 

I DO NOT SUGGEST THAT EVERY DETENTION CENTER IN THE ARMED SERVICES
IS LIKE THE BRIG ON TREASURE ISLAND, SAN FRANCISCO BAY.  NOR DO I
SUGGEST THAT EVERY CONSCIENTIOUS OBJECTOR IS TREATED AS CRUELLY AS WAS
THE PLAINTIFF IN THE LEMOND CASE.  I DO SUGGEST HOWEVER THAT IN MY TIME
EVERY CONSCIENTIOUS OBJECTOR WAS "FAIR GAME" TO MOST TOP SERGEANTS WHO
CONSIDERED THAT HE HAD A "YELLOW STREAK" AND THEREFORE WAS A COWARD OR
WAS UN-AMERICAN.  THE CONSCIENTIOUS OBJECTOR NEVER HAD AN EASY TIME
ASSERTING FIRST AMENDMENT RIGHTS IN THE ARMED SERVICES. 

WHAT MIGHT HAPPEN TO HIM IN THE BARRACKS OR IN THE DETENTION CENTER
IS, OF COURSE, NOT THE MEASURE OF WHAT WOULD TRANSPIRE AT THE
HEARINGS.  BUT THE MILITARY MIND IS EDUCATED IN OTHER VALUES; IT DOES
NOT REFLECT THE HUMANISTIC, PHILOSOPHICAL VALUES MOST GERMANE TO
FERRETING OUT FIRST AMENDMENT CLAIMS THAT ARE GENUINE. 

OUR DECISIONS ON CONSCIENTIOUS OBJECTION LEAVE CONSIDERABLE LATITUDE
FOR ADMINISTRATIVE FINDINGS.  ON ONE HAND GILLETTE V. UNITED STATES AND
NEGRE V. LARSEN, 401 U.S. 437, MAKE IT CLEAR THAT OBJECTION TO A
PARTICULAR WAR WILL NOT QUALIFY FOR CONSCIENTIOUS OBJECTOR STATUS.  ON
THE OTHER HAND, BOTH UNITED STATES V. SEEGER, 380 U.S. 163, AND WELSH
V. UNITED STATES, 398 U.S. 333, DEMONSTRATE THAT THE OBJECTOR NEED NOT
BE RELIGIOUS AND HIS VIEWS MAY BE BASED ON BROAD HUMANISTIC GROUNDS. 
THERE ARE SUBTLETIES IN THESE POSITIONS FOR, AS NOTED, "SEC.  6(J)'S
EXCLUSION OF THOSE PERSONS WITH 'ESSENTIALLY POLITICAL, SOCIOLOGICAL,
OR PHILOSOPHICAL VIEWS OR A MERELY PERSONAL MORAL CODE' SHOULD (NOT) BE
READ TO EXCLUDE THOSE WHO HOLD STRONG BELIEFS ABOUT OUR DOMESTIC AND
FOREIGN AFFAIRS OR EVEN THOSE WHOSE CONSCIENTIOUS OBJECTION TO
PARTICIPATION IN ALL WARS IS FOUNDED TO A SUBSTANTIAL EXTENT UPON
CONSIDERATIONS OF PUBLIC POLICY."  398 U.S., AT 342 (OPINION OF BLACK,
J.). 

THUS UNDER THE COURT'S INTERPRETATIONS OF SEC. 6(J) THOSE WHO DO NOT
QUALIFY ARE THOSE WHO LACK SINCERITY, DO NOT OPPOSE ALL WARS, OR THOSE
WHO REST THEIR BELIEFS "SOLELY UPON CONSIDERATIONS OF POLICY,
PRAGMATISM, OR EXPEDIENCY."  ID., AT 342-343.  DECISION AS TO WHETHER
AN INDIVIDUAL IS ENTITLED TO A CONSCIENTIOUS OBJECTOR STATUS UNDER
THESE BROAD CRITERIA REQUIRES GREAT SENSITIVITY ON THE PART OF THOSE
WHO HAVE THE FINAL SAY. 

EHLERT'S CLAIM ITSELF FALLS SOMEWHERE BETWEEN GILLETTE AND WELSH. 
IN ADDITION IT RAISES CLAIMS BETWEEN PRAGMATISM AND A RESPECT FOR HUMAN
LIFE AND VALUES.  HIS BELIEFS ARE NOT RELIGIOUS IN NATURE.  HE STATED
THEY CAME FROM "THE INTELLECTUAL ATMOSPHERE OF THE UNIVERSITY OF
CALIFORNIA AND ITS SURROUNDINGS AND THE NATURAL WORKINGS OF AN EAGER-TO
KNOW AND QUESTIONING MIND."  IN A LETTER REFUSING INDUCTION HE STATED
HIS OBJECTION WAS "THAT THE SOLE PURPOSE OF MILITARY SERVICE IN THIS
COUNTRY TODAY IS PREPARATION FOR A NUCLEAR ORGASM WHICH WOULD BE
TOTALLY DESTRUCTIVE OF HUMAN LIFE AND VALUES."  ON HIS FORM 150 HE
WROTE "THAT SERVICE IN THE ARMED FORCES OF THIS COUNTRY AT THIS TIME IS
WORK TOWARD THE END OF THE DESTRUCTION OF THE HUMAN RACE.  I CONSIDER
THAT MY DUTY NOT TO WORK FOR THE DESTRUCTION OF THE HUMAN RACE IS
SUPERIOR TO ANY DUTIES WHICH MAY ARISE FROM ANY HUMAN RELATION."  HE
ADDED HE WOULD USE FORCE WHERE ITS USE "WOULD NOT MAKE MORE PROBABLY
THE DESTRUCTION OF THE HUMAN RACE." 

WHILE IT APPEARS THAT EHLERT'S CLAIM MAY BE SUFFICIENTLY CLOSE TO
GILLETTE TO FORECLOSE HIS CLAIM, OTHER CLAIMS IN THIS SENSITIVE AREA
MAY NOT BE AS CLOSE TO GILLETTE, YET ALSO MAY BE BEYOND WELSH.  IN A
CHOICE BETWEEN CIVILIAN AND MILITARY FACTFINDERS DEALING IN AN AREA OF
CONSCIENCE CLEARLY THE FORMER ARE TO BE PREFERRED. 

MOREOVER, PROOF OF A CONSCIENTIOUS OBJECTOR'S CLAIM WILL USUALLY BE
MUCH MORE DIFFICULT AFTER INDUCTION THAN BEFORE.  MILITARY EXIGENCIES
MAY TAKE HIM FAR FROM HIS NEIGHBORHOOD, THE ONLY PLACE WHERE HE CAN
FIND THE FRIENDS AND ASSOCIATES WHO KNOW HIM.  HIS CHANCES OF HAVING A
FAIR HEARING ARE THEREFORE LESSENED WHEN THE HEARING ON HIS CLAIM IS
RELEGATED TO IN-SERVICE PROCEDURES.  FOR THESE REASONS I WOULD RESOLVE
ANY AMBIGUITIES IN THE LAW IN FAVOR OF PRE-INDUCTION REVIEW OF HIS
CLAIM AND NOT RELEGATE HIM TO THE REGIME WHERE MILITARY PHILOSOPHY,
RATHER THAN THE FIRST AMENDMENT, IS SUPREME.     BEYOND ALL THESE
ARGUMENTS IS A CONSTITUTIONAL ONE.  INDUCTION ITSELF MAY VIOLATE THE
PRIVILEGES OF CONSCIENCE ENGRAINED IN THE FIRST AMENDMENT.  A COMPELLED
ACT WAS THE HEART OF THE CASE PRESENTED BY BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624, WHEN CHILDREN OF JEHOVAH'S WITNESSES PROTESTED
THE REQUIREMENT THAT THEY SALUTE THE FLAG.  WE SAID: 

     "STRUGGLES TO COERCE UNIFORMITY OF SENTIMENT IN SUPPORT OF
SOME

  END THOUGH ESSENTIAL TO THEIR TIME AND COUNTRY HAVE BEEN WAGED BY

MANY GOOD AS WELL AS BY EVIL MEN.  NATIONALISM IS A RELATIVELY

  RECENT PHENOMENON BUT AT OTHER TIMES AND PLACES THE ENDS HAVE

  BEEN RACIAL OR TERRITORIAL SECURITY, SUPPORT OF A DYNASTY OR

  REGIME, AND PARTICULAR PLANS FOR SAVING SOULS.  AS FIRST AND

  MODERATE METHODS TO ATTAIN UNITY HAVE FAILED, THOSE BENT ON ITS

  ACCOMPLISHMENT MUST RESORT TO AN EVER-INCREASING SEVERITY.  AS

  GOVERNMENTAL PRESSURE TOWARD UNITY BECOMES GREATER, SO STRIFE

  BECOMES MORE BITTER AS TO WHOSE UNITY IS SHALL BE.  PROBABLY NO

  DEEPER VISION OF OUR PEOPLE COULD PROCEED FROM ANY PROVACATION

  THAN FROM FINDING IT NECESSARY TO CHOOSE WHAT DOCTRINE AND WHOSE

  PROGRAM PUBLIC EDUCATIONAL OFFICIALS SHALL COMPEL YOUTH TO UNITE

  IN EMBRACING.  ULTIMATE FUTILITY OF SUCH ATTEMPTS TO COMPEL

  COHERENCE IS THE LESSON OF EVERY SUCH EFFORT . . . . THOSE WHO

  BEGIN COERCIVE ELIMINATION OF DISSENT SOON FIND THEMSELVES

  EXTERMINATING DISSENTERS.  COMPULSORY UNIFICATION OF OPINION

  ACHIEVES ONLY THE UNANIMITY OF THE GRAVEYARD. 

     "IT SEEMS TRITE BUT NECESSARY TO SAY THAT THE FIRST AMENDMENT

  TO OUR CONSTITUTION WAS DESIGNED TO AVOID THESE ENDS BY AVOIDING

  THESE BEGINNINGS."  ID. AT 640-641. 

TO SOME CONSCIENTIOUS OBJECTORS, TAKING THE ONE STEP FORWARD IS AN
ACT VIOLATING THE CONSCIENCE, SINCE WEARING THE UNIFORM IN ANY FORM IS
AS REVOLTING TO THEM AS SALUTING THE FLAG WAS TO THE CHILDREN IN THE
BARNETTE CASE.  /8/  TO ANOTHER CONSCIENTIOUS OBJECTOR THE BEARING OF
ARMS, NOT ACTING AS ORDERLIES, SAY, IN MILITARY HOSPITALS, IS THE ACT
AT WHICH HE REBELS.  THE SORTING AND SIFTING OF THESE CLAIMS AND ALL
VARIETIES OF THEM ARE BEST PROCESSED BY CIVILIANS RATHER THAN THE
MILITARY.  THE PRESENT REGULATIONS PERMIT IT AND I WOULD RESOLVE ANY
AMBIGUITIES IN FAVOR OF THE PROCEDURE MOST PROTECTIVE OF THE RIGHTS OF
CONSCIENCE INVOLVED HERE. 

I THEREFORE DISSENT FROM AFFIRMANCE OF THE JUDGMENT BELOW. 

/1/  32 CFR 1625.2 (1971). 

/2/  9 ACTS 3-6 (REV. STANDARD ED. 1952). 

/3/ SEE SEC. 6(J) OF THE MILITARY SELECTIVE SERVICE ACT OF 1967, 81
STAT. 104, 50 U.S.C. APP. 456(J) (1964 ED., SUPP. V):  "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.  AS USED
IN THIS SUBSECTION, THE TERM 'RELIGIOUS TRAINING AND BELIEF' DOES NOT
INCLUDE ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR PHILOSOPHICAL VIEWS, OR
A MERELY PERSONAL MORAL CODE." 

/4/  STONE, THE CONSCIENTIOUS OBJECTOR, 21 COL.U.Q. 253, 263
(1919). 

/5/  A MASON, HARLAN FISKE STONE:  PILLAR OF THE LAW 102 (1956). 

/6/  M. SIBLEY & P. JACOB, CONSCRIPTION OF CONSCIENCE 15 (1952). 

/7/  ID., AT 108. 

/8/  SEE UNITED STATES V. FREEMAN, 388 F.2D 246, 248-249. 

        APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING 

ON SEPTEMBER 15, 1969, I ENTERED A STAY IN THE CASE OF JONES V.
LEMOND, 396 U.S. 1227.  JONES WAS IN THE UNITED STATES NAVY AND HIS
CLAIM TO DISCHARGE AS A CONSCIENTIOUS OBJECTOR AROSE FIVE MONTHS AFTER
HIS ENLISTMENT.  ACCORDING TO THE ALLEGATION HE HAD MADE MANY ATTEMPTS
OVER A PERIOD OF SOME 37 DAYS TO FILE AN APPLICATION TO BE DISCHARGED
AS A CONSCIENTIOUS OBJECTOR.  HE WAS UNABLE TO MAKE A FILING OR OBTAIN
A HEARING.  HE WENT AWOL ON THAT ACCOUNT AND LATER SURRENDERED HIMSELF
AND WITH THE HELP OF LEGAL ADVICE PRESSED FOR PROCESSING OF HIS
CONSCIENTIOUS OBJECTOR CLAIM. 

I DID NOT REACH THE MERITS OF THAT CONTROVERSY, BUT IN VIEW OF THE
REPRESENTATIONS MADE I RESTRAINED THE NAVY FROM CONFINING JONES IN THE
BRIG AT TREASURE ISLAND, WHICH ACCORDING TO THE AFFIDAVITS PRESENTED TO
ME HAD BECOME A HOUSE OF HORROR. 

"AFTER SITTING IN THE ROOM APPROXIMATELY 45 MINUTES, I HEARD MR.
FOREMAN SAY, 'HE IS AN ESCAPE RISK AND IS TO BE SENTENCED FOR 5 MONTHS-
HE IS NOT TO BE ALLOWED TO PHONE ANYONE.'  IMMEDIATELY AFTER I HEARD
MR. FOREMAN SPEAK, A MARINE SERGEANT OPENED THE DOOR AND SAID TO ME
'EMPTY YOUR POCKETS, F . . . ER.'  I BEGAN TO EMPTY MY POCKETS TO WHICH
THE SERGEANT SAID, 'HURRY UP, GODDAMNIT.'  WHEN I HAD FINISHED EMPTYING
MY POCKETS THE SERGEANT SAID, 'UP AGAINST THE WALL-- SPREAD YOUR ARMS
AND LEGS.'  I SPREAD MY ARMS OUT AGAINST THE WALL AND PLACED MY FEET
APPROXIMATELY 3 1/2 FEET APART.  THE SERGEANT KICKED MY LEGS SEVERAL
TIMES AND SAID, 'MOVE THEM FURTHER.'  I THEN STRETCHED THEM AS FAR AS
POSSIBLE, SO THE SERGEANT KICKED ME A COUPLE OF MORE TIMES TO MAKE SURE
THEY WERE SPREAD AS FAR AS POSSIBLE.  HE THEN FRISKED ME, WHICH
INVOLVED SLAPPING AND SHOVING ME AGAINST THE WALL.  WHEN HE FINISHED
HIS SO-CALLED FRISK, HE HANDCUFFED MY HANDS BEHIND ME AND SAID,
'ALRIGHT, LET'S GO-- ONE F-- K-UP AND I'LL BUST YOUR F-- KIN HEAD
OPEN.' 

"I WAS THEN TAKEN TO THE BRIG AND TOLD TO STAND IN FRONT OF THE
FENCE WITH MY NOSE ON THE CANVAS.  I STOOD AT ATTENTION WITH MY NOSE ON
THE CANVAS AND THE SERGEANT WENT INTO THE MAIN CONTROL ROOM. 

"ABOUT 5 MINUTES LATER THE SERGEANT CAME OUT WITH ANOTHER SERGEANT. 
THE SERGEANT SAID 'EMPTY YOUR POCKETS.'  I TOOK OUT A PEN AND CHOW PASS
AND OFFERED THEM TO THE SECOND SERGEANT.  HE SAID, 'DON'T POINT AT ME F
- KER, PUT THAT S-- T IN YOUR HAT.'  I EMPTIED MY POCKETS AND PUT
EVERYTHING INTO MY HAT.  THE SERGEANT SAID, 'PUT IT ON THE GROUND.' 
THE SERGEANT SAID TO THE OTHER SERGEANT, 'HE'S STILL PRETTY SALTY-- I
GOT HIM WHEN I PICKED HIM UP, BUT HE STILL THINKS HE'S TOUGH.'  THE
REPLY WAS, 'DON'T WORRY, HE WON'T BE SO TOUGH, I KNOW WHAT TO DO WITH
HIM.'  HE SAID, 'SPREAD YOUR ARMS AND LEGS TURD.'  I SPREAD OUT AGAINST
THE CANVAS.  HE STARTED KICKING ME AND YELLING, 'SPREAD OUT A-- HOLE.' 
HE KEPT KICKING ME AND YELLING UNTIL I FELL DOWN AND THEN SAID, 'WHAT'S
WRONG WITH YOU PUSSY CAN'T YOU STAND UP-- GET UP.'  I STOOD UP AND HE
SAID 'SPREAD OUT GODDAMNIT.'  HE STARTED KICKING ME AGAIN.  WHEN I FELL
TO MY KNEES AGAINST THE CANVAS HE STOPPED AND SAID, 'CAN'T YOU STAND UP
SQUID?'  THIS TIME I GOT UP AND SPREAD OUT HANDS ON THE CANVAS BEFORE
HE COULD SAY SO.  HE THEN PUSHED MY FACE INTO THE CANVAS, SLAPPED MY
NECK AND ARMS, PUNCHED ME IN THE SIDES, YANKED THE CROTCH OF MY
DUNGAREES PAINFULLY BETWEEN MY LEGS, SLAPPED AND PINCHED MY LEGS AND
SAID, 'ALRIGHT NOW STAND AT ATTENTION.'  HE HAD NOW FINISHED FRISKING
ME SO THEY BOTH WENT BACK INTO THE CONTROL ROOM TAKING WITH THEM THE
CONTENTS OF MY POCKETS IN MY HAT. 

"AFTER MUCH VERBAL HARASSMENT, I WAS TAKEN TO MY CELL. 

"A COUPLE OF HOURS LATER I HEARD THE ORANGE BADGES MARCH IN.  THEY
LIVE IN THE ANNEX IN 6' X 6' X 8' CELLS, 3 MEN PER CELL.  I HEARD A
CORPORAL YELLING AT AN ORANGE BADGE FOR NOT RUNNING FAST ENOUGH DURING
THE PHYSICAL EXERCISE PERIOD.  HE THEN MADE THE ORANGE BADGE DO PUSH
UPS UNTIL HE COLLAPSED.  THEN I COULD HEAR THE CORPORAL HITTING THE MAN
AND THE MAN CRYING AND SCREAMING FOR HIM TO STOP.  WHEN THE CORPORAL
STOPPED THEY TOOK THE MAN BACK OUT INTO THE COMPOUND TO RUN AND THAT
WAS THE LAST I HEARD OF HIM. 

"DINNER WAS BROUGHT TO MY CELL AND I ATE IT ON THE FLOOR AS I DID
WITH ALL THE REST OF MY MEALS. 

"EARLY IN THE EVENING A CORPORAL STARTED HARASSING A CONFINEE WHO
WAS LOCKED IN THE SUIICIDE RISK CELL.  SUICIDE RISKS HAVE TO SIT IN THE
CELLS, WHICH I FOUND TO BE VERY COLD WITH MY CLOTHES ON, IN NOTHING BUT
A PAIR OF UNDERWEAR.  THE CORPORAAL KEPT ANTAGONIZING THE MAN UNTIL HE
STARTED SCREAMING AND CRYING.  ONCE THE CORPORAL SUCCEEDED IN BREAKING
THE CONFINEE HE STARTED LAUGHING, AT WHICH TIME THE OTHER CORPORAL
SAID, 'WHY DON'T YOU KICK HIS ASS FOR MAKING SO MUCH NOISE?' 

"THE NEXT DAY I WAS TAKEN FOR A HAIRCUT.  ANOTHER CONFINEE CUT MY
HAIR AND WHILE DOING SO HE DROPPED A CLIP BUT COULDN'T FIND IT.  I TOLD
HIM WHERE IT WAS AND HE SAID, 'DON'T LET THEM CATCH YOU TALKING TO ME,
THEY'LL KICK YOUR ASS.'  I KEPT QUIET. 

"AFTER MUCH MORE HARRASSMENT, I WENT BACK TO MY CELL AND I HEARD A
MAN COUGHING AND THEN A CORPORAL YELLING AT HIM TO SHUT UP.  TWO OTHER
CORPORALS JOINED IN HARRASSING THE MAN AND WHEN HE COULDN'T STOP
COUGHING THEY PULLED HIM OUT OF THE CELL AND MADE HIM DIVE ON A CUP ON
THE FLOOR PRETENDING IT WAS A GRENADE.  THEY GOT SEVERAL OTHER MEN OUT
OF THEIR CELLS AND HAD THEM ALL DIVING ON THE CUP WITH THE COUGHING MAN
ON THE BOTTOM EACH TIME. 

"IT WASN'T LONG AFTER THE GRENADE DRILLS WHEN THE TURNKEY CAME TO MY
CELL AND LET ME OUT.  HE HAD ME FOLD UP MY BLANKET AND PICK UP MY
LOCKER AND PULLED ME OUT TO THE CONTROL OFFICE.  IN THE OFFICE THERE
WERE 4 OR 5 SERGEANTS AND A STAFF SERGEANT YELLING AND SCREAMING ALL
TYPES OF PHRASES, SUCH AS, 'YOU'LL BE BACK, F-- KER AND THEN YOU'LL
REALLY GET IT.'  I NOW WAS TOLD TO STAND HOLDING MY FOOTLOCKER WITH MY
ARMS EXTENDED AND THEY SEEMED TO FORGET ME FOR A MOMENT. 

"THEN THEY BEGAN TALKING AMONG THEMSELVES AND I REALIZED THAT MY
LAWYER, DON JELINEK AND LOREN BASHAM, A MEMBER OF THE RESISTANCE, WERE
OUTSIDE THE BRIG IN A CAR AND THEY APPARENTLY INSISTED ON REMAINING
THERE UNTIL I WAS RELEASED.  THE SERGEANT SAID 'THIS GUY (JELINEK) JUST
PISSED ME OFF BECAUSE HE JUST CHARGED IN HERE AND SLAPPED THIS ORDER
DOWN AND SAID "GET THIS MAN OUT."'  THE THE SERGEANT SAID, 'I HAVE A
PSYCHIATRIST OVER HERE (POINTING TO THE MEDICAL BUILDING RIGHT BEHIND
US), WHO WILL BACK ME UP SAYING I AM NOT RESPONSIBLE FOR ANYTHING I
DO.'  HE THEN ADDED, 'IN A MINUTE I AM GOING TO GO OUT AND BLOW THEIR
HEADS OFF.' 

"THEN THE SERGEANT SEEMED TO GAIN CONTROL OF HIMSELF.  THE MP THEN
TURNED TO ME AND SAID, 'JUST TRY AND RUN BOY, I WOULD LOVE TO BLOW YOUR
HEAD RIGHT OFF.' 

"I WAS THEN ALLOWED OUTSIDE THE BRIG WHERE I SAW MY LAWYER WHO SPOKE
TO ME, BUT I WAS AFRAID TO ANSWER HIM FOR THE FEAR THEY WOULD BEAT OR
SHOOT US. 

"I KNOW THEY WORKED ME OVER BECAUSE OF ANGER BECAUSE THE MILITARY
COURT OF APPEALS GAVE ME AN ORDER KEEPING ME OUT OF THE BRIG.  NOW THAT
A SECOND COURT ORDER HAS GOTTEN ME OUT OF THE BRIG, I FEEL THEY WILL
KILL ME IF I HAVE TO GO BACK IN AGAIN." 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

SELECTIVE SERVICES REGULATION 1625.2, 32 CFR 1625.2 (1971), RELIEVES
A LOCAL BOARD OF ITS GENERAL OBLIGATION TO CONSIDER A REGISTRANT'S
CLAIM FOR DEFERMENT WHENEVER THE CLAIM IS RECIEVED AFTER THE NOTICE TO
REPORT FOR INDUCTION HAS BEEN MAILED "UNLESS THE LOCAL BOARD FIRST
SPECIFICALLY FINDS THERE HAS BEEN A CHANGE IN THE REGISTRANT'S STATUS
RESULTING FROM CIRCUMSTANCES OVER WHICH THE REGISTRANT HAD NO
CONTROL."  THE COURT OF APPEALS HELD THAT THIS REGULATION RELIEVED THE
LOCAL BOARD OF THE NECESSITY OF CONSIDERING ANY CLAIM THAT A
REGISTRANT'S CONSCIENTIOUS OBJECTION TO WAR HAD CRYSTALLIZED AFTER
RECEIPT OF AN INDUCTION NOTICE BECAUSE, IN THE COURT'S VIEW,
REGISTRANTS HAVE CONTROL OVER SUCH CHANGES IN THEIR BELIEFS.  422 F.2D
332 (CA 9) 1970).  THE COURT HERE FINDS IT UNNECESSARY TO COME TO GRIPS
WITH THIS HOLDING AND CONSIDER WHETHER A CONSCIENTIOUS OBJECTION CLAIM
COMES WITHIN THE TERMS OF THIS REGULATION, SINCE IT FINDS THE
INTERPRETATION OF THE REGULATION CONTROLLED BY "A REASONABLE,
CONSISTENTLY APPLIED ADMINISTRATIVE INTERPRETATION."  ANTE, AT 105. 

I CANNOT DEFER TO AN INTERPRETATION I CANNOT DISCOVER.  ALL OF THE
CASES CITED BY THE COURT MAKE CLEAR THAT JUDICIAL INTERPRETATION OF AN
AMBIGUOUS REGULATION IS TO BE INFORMED BY REFERENCE TO ADMINISTRATIVE
PRACTICE IN INTERPRETING AND APPLYING A REGULATION, NOT BY REFERENCE TO
POSITIONS TAKEN FOR THE PURPOSE OF LITIGATION.  SEE CASES CITED, ANTE,
AT 105.  CF. CITIZENS TO PRESERVE OVERTON PARK V. VOLPE, 401 U.S. 402,
419 (1971).  THE NATIONAL SELECTIVE SERVICE OFFICE HAS APPARENTLY MADE
NO NATIONAL ADMINISTRATIVE INTERPRETATION OF THE REGULATION.  THE ONLY
OTHER INFORMATION PRESENTLY BEFORE US INDICATES THAT STATE SELECTIVE
SERVICE HEADQUARTERS IN NORTH CAROLINA AND CALIFORNIA HAVE INTERPRETED
THE REGULATION TO REQUIRE LOCAL BOARDS TO CONSIDER "LATE
CRYSTALLIZATION" CLAIMS AND TO CONSIDER WHETHER THE REGISTRANT'S
CONSCIENTIOUS OBJECTION WAS A CHANGE OCCURRING AFTER RECEIPT OF HIS
INDUCTION NOTICE OVER WHICH HE HAD NO CONTROL.  BRIEF FOR PETITIONER 28
N. 53.  IF ANYTHING, THIS SUGGESTS THAT PETITIONER'S INTERPRETATION
SHOULD PREVAIL.  ON THIS STATE OF THE RECORD, HOWEVER, I HARDLY THINK
ADMINISTRATIVE PRACTICE CAN PROPERLY FORM THE BASIS OF DECISION. 

MOREOVER, I DO NOT FIND THE REGULATION TO BE AMBIGUOUS.  IN THE
CONTEXT OF A BLANKET SELECTIVE SERVICE REGULATION APPLICABLE TO ALL
CLAIMS FOR DEFERMENT AND EXEMPTION, THE REFERENCE TO "CIRCUMSTANCES"
MUST BE TAKEN TO REFER TO ANY CONDITIONS RELEVANT TO ELIGIBILITY FOR A
DEFERMENT OR EXEMPTION.  SINCE CONSCIENTIOUS OBJECTION TO WAR IS THE
BASIS FOR A DEFERMENT, IT MUST CONSTITUTE A "CIRCUMSTANCE" WITHIN THE
PLAIN MEANING OF THE REGULATION.  THE QUESTION, THEREFORE, IS WHETHER
THAT CIRCUMSTANCE CAN BE ONE "OVER WHICH THE REGISTRANT HAD NO
CONTROL."  ON THAT SCORE, I FULLY AGREE WITH THE DISSENT OF JUDGE
MERRILL BELOW: 

     "ONE SIMPLY CANNOT ORDER HIS CONSCIENCE TO BE STILL OR MAKE

  HIMSELF BELIEVE WHAT HE DOES NOT BELIEVE AND I MUST REJECT THE

  IMPLICATION THAT IT IS RIGHT AND PROPER THAT ONE SHOULD SUFFER

  LOSS OF STATUS FOR HAVING FAILED TO BRING HIS CONSCIENCE TO

  HEEL. 

     "CONSCIENTIOUS OBJECTION, IN TRUTH, IS A CONTRADICTION OF

  CONTROL.  JUST AS A CONVICTION HONESTLY DICTATED BY CONSCIENCE

CANNOT BE BANISHED AT THE WILL OF THE HOLDER, SO, CONVERSELY, A

  BELIEF CONVENIENTLY SUBJECT TO THE CONTROL OF THE HOLDER IS NOT

  CONSCIENTIOUSLY ENTERTAINED."  422 F.2D, AT 339. 

IN SUM, I THINK THE REGULATION MEANS THAT LATE-CRYSTALLIZATION
CLAIMS ASSERTED PRIOR TO INDUCTION SHOULD BE PROCESSED BY CIVILIAN
PERSONNEL OF THE LOCAL BOARDS, WHO HAVE BEEN DESIGNATED BY THE CONGRESS
AS THE APPROPRIATE DECISIONMAKERS IN THESE CASES, RATHER THAN BY
MILITARY PERSONNEL DURING IN-SERVICE PROCESSING.  I DISSENT. 

PAUL N. HALVONIK ARGUED THE CAUSE FOR PETITION.  WITH HIM ON THE
BRIEFS WERE STANLEY J. FRIEDMAN, MORTIMER H. HERZSTEIN, AND MARVIN M.
KARPATKIN. 

ASSISTANT ATTORNEY GENERAL REHNQUIST ARGUED THE CAUSE FOR THE UNITED
STATES.  ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL WILSON, BEATRICE ROSENBERG, AND MARSHALL TAMOR
GOLDING. 

NORMAN LEONARD FILED A BRIEF FOR THE LAWYERS' SELECTIVE SERVICE
PANEL OF SAN FRANCISCO AS AMICUS CURIAE URGING REVERSAL. 
..END :




SWANN V. BOARD OF EDUCATION, 402 U.S. 1 


       SWANN ET AL. V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 281.  ARGUED OCTOBER 12, 1970-- DECIDED APRIL 20, 1971

           /0/ 


THE CHARLOTTE-MECKLENBURG SCHOOL SYSTEM, WHICH INCLUDES THE CITY OF
CHARLOTTE, NORTH CAROLINA, HAD MORE THAN 84,000 STUDENTS IN 107 SCHOOLS
IN THE 1968-1969 SCHOOL YEAR.  APPROXIMATELY 29% (24,000) OF THE PUPILS
WERE NEGRO, ABOUT 14,000 OF WHOM ATTENDED 21 SCHOOLS THAT WERE AT LEAST
99% NEGRO.  THIS RESULTED FROM A DESEGREGATION PLAN APPROVED BY THE
DISTRICT COURT IN 1965, AT THE COMMENCEMENT OF THIS LITIGATION.  IN
1968 PETITIONER SWANN MOVED FOR FURTHER RELIEF BASED ON GREEN V. COUNTY
SCHOOL BOARD, 391 U.S. 430, WHICH REQUIRED SCHOOL BOARDS TO "COME
FORWARD WITH A PLAN THAT PROMISES REALISTICALLY TO WORK . . . NOW . . .
UNTIL IT IS CLEAR THAT STATE-IMPOSED SEGREGATION HAS BEEN COMPLETELY
REMOVED."  THE DISTRICT COURT ORDERED THE SCHOOL BOARD IN APRIL 1969 TO
PROVIDE A PLAN FOR FACULTY AND STUDENT DESEGREGATION.  FINDING THE
BOARD'S SUBMISSION UNSATISFACTORY, THE DISTRICT COURT APPOINTED AN
EXPERT TO SUBMIT A DESEGREGATION PLAN.  IN FEBRUARY 1970, THE EXPERT
AND THE BOARD PRESENTED PLANS, AND THE COURT ADOPTED THE BOARD'S PLAN,
AS MODIFIED, FOR THE JUNIOR AND SENIOR HIGH SCHOOLS, AND THE EXPERT'S
PROPOSED PLAN FOR THE ELEMENTARY SCHOOLS.  THE COURT OF APPEALS
AFFIRMED THE DISTRICT COURT'S ORDER AS TO FACULTY DESEGREGATION AND THE
SECONDARY SCHOOL PLANS, BUT VACATED THE ORDER RESPECTING ELEMENTARY
SCHOOLS, FEARING THAT THE PROVISIONS FOR PAIRING AND GROUPING OF
ELEMENTARY SCHOOLS WOULD UNREASONABLY BURDEN THE PUPILS AND THE BOARD. 
THE CASE WAS REMANDED TO THE DISTRICT COURT FOR RECONSIDERATION AND
SUBMISSION OF FURTHER PLANS.  THIS COURT GRANTED CERTIORARI AND
DIRECTED REINSTATEMENT OF THE DISTRICT COURT'S ORDER PENDING FURTHER
PROCEEDINGS IN THAT COURT.  ON REMAND THE DISTRICT COURT RECEIVED TWO
NEW PLANS, AND ORDERED THE BOARD TO ADOPT A PLAN, OR THE EXPERT'S PLAN
WOULD REMAIN IN EFFECT.  AFTER THE BOARD "ACQUIESCED" IN THE EXPERT'S
PLAN, THE DISTRICT COURT DIRECTED THAT IT REMAIN IN EFFECT.  HELD: 

1.  TODAY'S OBJECTIVE IS TO ELIMINATE FROM THE PUBLIC SCHOOLS ALL
VESTIGES OF STATE-IMPOSED SEGREGATION THAT WAS HELD VIOLATIVE OF EQUAL
PROTECTION GUARANTEES BY BROWN V. BOARD OF EDUCATION, 347 U.S. 483, IN
1954.  P. 15. 

2.  IN DEFAULT BY THE SCHOOL AUTHORITIES OF THEIR AFFIRMATIVE
OBLIGATION TO PROFFER ACCEPTABLE REMEDIES, THE DISTRICT COURTS HAVE
BROAD POWER TO FASHION REMEDIES THAT WILL ASSURE UNITARY SCHOOL
SYSTEMS.  P. 16. 

3.  TITLE IV OF THE CIVIL RIGHTS ACT OF 1964 DOES NOT RESTRICT OR
WITHDRAW FROM THE FEDERAL COURTS THEIR HISTORIC EQUITABLE REMEDIAL
POWERS.  THE PROVISO IN 42 U.S.C. 2000C-6 WAS DESIGNED SIMPLY TO
FORECLOSE ANY INTERPRETATION OF THE ACT AS EXPANDING THE EXISTING
POWERS OF THE FEDERAL COURTS TO ENFORCE THE EQUAL PROTECTION CLAUSE. 
PP. 16-18. 

4.  POLICY AND PRACTICE WITH REGARD TO FACULTY, STAFF,
TRANSPORTATION, EXTRACURRICULAR ACTIVITIES, AND FACILITIES ARE AMONG
THE MOST IMPORTANT INDICIA OF A SEGREGATED SYSTEM, AND THE FIRST
REMEDIAL RESPONSIBILITY OF SCHOOL AUTHORITIES IS TO ELIMINATE INVIDIOUS
RACIAL DISTINCTIONS IN THOSE RESPECTS.  NORMAL ADMINISTRATIVE PRACTICE
SHOULD THEN PRODUCE SCHOOLS OF LIKE QUALITY, FACILITIES, AND STAFFS. 
PP. 18-19. 

5.  THE CONSTITUTION DOES NOT PROHIBIT DISTRICT COURTS FROM USING
THEIR EQUITY POWER TO ORDER ASSIGNMENT OF TEACHERS TO ACHIEVE A
PARTICULAR DEGREE OF FACILITY DESEGREGATION.  UNITED STATES V.
MONTGOMERY COUNTY BOARD OF EDUCATION, 395 U.S. 225, WAS PROPERLY
FOLLOWED BY THE LOWER COURTS IN THIS CASE.  PP. 19-20. 

6.  IN DEVISING REMEDIES TO ELIMINATE LEGALLY IMPOSED SEGREGATION,
LOCAL AUTHORITIES AND DISTRICT COURTS MUST SEE TO IT THAT FUTURE SCHOOL
CONSTRUCTION AND ABANDONMENT ARE NOT USED AND DO NOT SERVE TO
PERPETUATE OR RE-ESTABLISH A DUAL SYSTEM.  PP. 20-21. 

7.  FOUR PROBLEM AREAS EXIST ON THE ISSUE OF STUDENTS ASSIGNMENT: 

(1) RACIAL QUOTAS.  THE CONSTITUTIONAL COMMAND TO DESEGREGATE
SCHOOLS DOES NOT MEAN THAT EVERY SCHOOL IN THE COMMUNITY MUST ALWAYS
REFLECT THE RACIAL COMPOSITION OF THE SYSTEM AS A WHOLE; HERE THE
DISTRICT COURT'S VERY LIMITED USE OF THE RACIAL RATIO-- NOT AS AN
INFLEXIBLE REQUIREMENT, BUT AS A STARTING POINT IN SHAPING A REMEDY--
WAS WITHIN ITS EQUITABLE DISCRETION.  PP. 22-25. 

(2) ONE-RACE SCHOOLS.  WHILE THE EXISTENCE OF A SMALL NUMBER OF ONE
RACE, OR VIRTUALLY ONE-RACE, SCHOOLS DOES NOT IN ITSELF DENOTE A SYSTEM
THAT STILL PRACTICES SEGREGATION BY LAW, THE COURT SHOULD SCRUTINIZE
SUCH SCHOOLS AND REQUIRE THE SCHOOL AUTHORITIES TO SATISFY THE COURT
THAT THE RACIAL COMPOSITION DOES NOT RESULT FROM PRESENT OR PAST
DISCRIMINATORY ACTION ON THEIR PART.  PP. 25-26. 

AN OPTIONAL MAJORITY-TO-MINORITY TRANSFER PROVISION HAS LONG BEEN
RECOGNIZED AS A USEFUL PART OF A DESEGREGATION PLAN, AND TO BE
EFFECTIVE SUCH ARRANGEMENT MUST PROVIDE THE TRANSFERRING STUDENT FREE
TRANSPORTATION AND AVAILABLE SPACE IN THE SCHOOL TO WHICH HE DESIRES TO
MOVE.  PP. 26-27. 

(3) ATTENDANCE ZONES.  THE REMEDIAL ALTERING OF ATTENDANCE ZONES IS
NOT, AS AN INTERIM CORRECTIVE MEASURE, BEYOND THE REMEDIAL POWERS OF A
DISTRICT COURT.  A STUDENT ASSIGNMENT PLAN IS NOT ACCEPTABLE MERELY
BECAUSE IT APPEARS TO BE NEUTRAL, FOR SUCH A PLAN MAY FAIL TO
COUNTERACT THE CONTINUING EFFECTS OF PAST SCHOOL SEGREGATION.  THE
PAIRING AND GROUPING OF NONCONTIGUOUS ZONES IS A PERMISSIBLE TOOL;
JUDICIAL STEPS GOING BEYOND CONTIGUOUS ZONES SHOULD BE EXAMINED IN
LIGHT OF THE OBJECTIVES TO BE SOUGHT.  NO RIGID RULES CAN BE LAID DOWN
TO GOVERN CONDITIONS IN DIFFERENT LOCALITIES.  PP. 27-29. 

(4) TRANSPORTATION.  THE DISTRICT COURT'S CONCLUSION THAT ASSIGNMENT
OF CHILDREN TO THE SCHOOL NEAREST THEIR HOME SERVING THEIR GRADE WOULD
NOT EFFECTIVELY DISMANTLE THE DUAL SCHOOL SYSTEM IS SUPPORTED BY THE
RECORD, AND THE REMEDIAL TECHNIQUE OF REQUIRING BUS TRANSPORTATION AS A
TOOL OF SCHOOL DESEGREGATION WAS WITHIN THAT COURT'S POWER TO PROVIDE
EQUITABLE RELIEF.  AN OBJECTION TO TRANSPORTATION OF STUDENTS MAY HAVE
VALIDITY WHEN THE TIME OR DISTANCE OF TRAVEL IS SO GREAT AS TO RISK
EITHER THE HEALTH OF THE CHILDREN OR SIGNIFICANTLY IMPINGE ON THE
EDUCATIONAL PROCESS; LIMITS ON TRAVEL TIME WILL VARY WITH MANY FACTORS,
BUT PROBABLY WITH NONE MORE THAN THE AGE OF THE STUDENTS.  PP. 29-31. 

8.  NEITHER SCHOOL AUTHORITIES NOR DISTRICT COURTS ARE
CONSTITUTIONALLY REQUIRED TO MAKE YEAR-BY-YEAR ADJUSTMENTS OF THE
RACIAL COMPOSITION OF STUDENT BODIES ONCE A UNITARY SYSTEM HAS BEEN
ACHIEVED.  PP. 31-32. 

431 F.2D 138, AFFIRMED AS TO THOSE PARTS IN WHICH IT AFFIRMED THE
DISTRICT COURT'S JUDGMENT.  THE DISTRICT COURT'S ORDER OF AUGUST 7,
1970, IS ALSO AFFIRMED. 

BURGER, C.J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO REVIEW IMPORTANT ISSUES AS TO
THE DUTIES OF SCHOOL AUTHORITIES AND THE SCOPE OF POWERS OF FEDERAL
COURTS UNDER THIS COURT'S MANDATES TO ELIMINATE RACIALLY SEPARATE
PUBLIC SCHOOLS ESTABLISHED AND MAINTAINED BY STATE ACTION.  BROWN V.
BOARD OF EDUCATION, 347 U.S. 483 (1954) (BROWN I). 

THIS CASE AND THOSE ARGUED WITH IT /1/  AROSE IN STATES HAVING A
LONG HISTORY OF MAINTAINING TWO SETS OF SCHOOLS IN A SINGLE SCHOOL
SYSTEM DELIBERATELY OPERATED TO CARRY OUT A GOVERNMENTAL POLICY TO
SEPARATE PUPILS IN SCHOOLS SOLELY ON THE BASIS OF RACE.  THAT WAS WHAT
BROWN V. BOARD OF EDUCATION WAS ALL ABOUT.  THESE CASES PRESENT US WITH
THE PROBLEM OF DEFINING IN MORE PRECISE TERMS THAN HERETOFORE THE SCOPE
OF THE DUTY OF SCHOOL AUTHORITIES AND DISTRICT COURTS IN IMPLEMENTING
BROWN I AND THE MANDATE TO ELIMINATE DUAL SYSTEMS AND ESTABLISH UNITARY
SYSTEMS AT ONCE.  MEANWHILE DISTRICT COURTS AND COURTS OF APPEALS HAVE
STRUGGLED IN HUNDREDS OF CASES WITH A MULTITUDE AND VARIETY OF PROBLEMS
UNDER THIS COURT'S GENERAL DIRECTIVE.  UNDERSTANDABLY, IN AN AREA OF
EVOLVING REMEDIES, THOSE COURTS HAD TO IMPROVISE AND EXPERIMENT WITHOUT
DETAILED OR SPECIFIC GUIDELINES.  THIS COURT, IN BROWN I, APPROPRIATELY
DEALT WITH THE LARGE CONSTITUTIONAL PRINCIPLES; OTHER FEDERAL COURTS
HAD TO GRAPPLE WITH THE FLINTY, INTRACTABLE REALITIES OF DAY-TO-DAY
IMPLEMENTATION OF THOSE CONSTITUTIONAL COMMANDS.  THEIR EFFORTS, OF
NECESSITY, EMBRACED A PROCESS OF "TRIAL AND ERROR," AND OUR EFFORT TO
FORMULATE GUIDELINES MUST TAKE INTO ACCOUNT THEIR EXPERIENCE. 

        I 

THE CHARLOTTE-MECKLENBURG SCHOOL SYSTEM, THE 43D LARGEST IN THE
NATION, ENCOMPASSES THE CITY OF CHARLOTTE AND SURROUNDING MECKLENBURG
COUNTY, NORTH CAROLINA.  THE AREA IS LARGE-- 550 SQUARE MILES--
SPANNING ROUGHLY 22 MILES EAST-WEST AND 36 MILES NORTH-SOUTH.  DURING
THE 1968-1969 SCHOOL YEAR THE SYSTEM SERVED MORE THAN 84,000 PUPILS IN
107 SCHOOLS.  APPROXIMATELY 71% OF THE PUPILS WERE FOUND TO BE WHITE
AND 29% NEGRO.  AS OF JUNE 1969 THERE WERE APPROXIMATELY 24,000 NEGRO
STUDENTS IN THE SYSTEM, OF WHOM 21,000 ATTENDED SCHOOLS WITHIN THE CITY
OF CHARLOTTE.  TWO-THIRDS OF THOSE 21,000-- APPROXIMATELY 14,000 NEGRO
STUDENTS-- ATTENDED 21 SCHOOLS WHICH WERE EITHER TOTALLY NEGRO OR MORE
THAN 99% NEGRO. 

THIS SITUATION CAME ABOUT UNDER A DESEGREGATION PLAN APPROVED BY THE
DISTRICT COURT AT THE COMMENCEMENT OF THE PRESENT LITIGATION IN 1965,
243 F.SUPP.  667 (WDNC), AFF'D, 369 F.2D 29 (CA4 1966), BASED UPON
GEOGRAPHIC ZONING WITH A FREE-TRANSFER PROVISION.  THE PRESENT
PROCEEDINGS WERE INITIATED IN SEPTEMBER 1968 BY PETITIONER SWANN'S
MOTION FOR FURTHER RELIEF BASED ON GREEN V. COUNTY SCHOOL BOARD, 391
U.S. 430 (1968), AND ITS COMPANION CASES.  /2/  ALL PARTIES NOW AGREE
THAT IN 1969 THE SYSTEM FELL SHORT OF ACHIEVING THE UNITARY SCHOOL
SYSTEM THAT THOSE CASES REQUIRE. 

THE DISTRICT COURT HELD NUMEROUS HEARINGS AND RECEIVED VOLUMINOUS
EVIDENCE.  IN ADDITION TO FINDING CERTAIN ACTIONS OF THE SCHOOL BOARD
TO BE DISCRIMINATORY, THE COURT ALSO FOUND THAT RESIDENTIAL PATTERNS IN
THE CITY AND COUNTY RESULTED IN PART FROM FEDERAL, STATE, AND LOCAL
GOVERNMENT ACTION OTHER THAN SCHOOL BOARD DECISIONS.  SCHOOL BOARD
ACTION BASED ON THESE PATTERNS, FOR EXAMPLE, BY LOCATING SCHOOLS IN
NEGRO RESIDENTIAL AREAS AND FIXING THE SIZE OF THE SCHOOLS TO
ACCOMMODATE THE NEEDS OF IMMEDIATE NEIGHBORHOODS, RESULTED IN
SEGREGATED EDUCATION.  THESE FINDINGS WERE SUBSEQUENTLY ACCEPTED BY THE
COURT OF APPEALS. 

IN APRIL 1969 THE DISTRICT COURT ORDERED THE SCHOOL BOARD TO COME
FORWARD WITH A PLAN FOR BOTH FACULTY AND STUDENT DESEGREGATION. 
PROPOSED PLANS WERE ACCEPTED BY THE COURT IN JUNE AND AUGUST 1969 ON AN
INTERIM BASIS ONLY, AND THE BOARD WAS ORDERED TO FILE A THIRD PLAN BY
NOVEMBER 1969.  IN NOVEMBER THE BOARD MOVED FOR AN EXTENSION OF TIME
UNTIL FEBRUARY 1970, BUT WHEN THAT WAS DENIED THE BOARD SUBMITTED A
PARTIALLY COMPLETED PLAN.  IN DECEMBER 1969 THE DISTRICT COURT HELD
THAT THE BOARD'S SUBMISSION WAS UNACCEPTABLE AND APPOINTED AN EXPERT IN
EDUCATION ADMINISTRATION, DR. JOHN FINGER, TO PREPARE A DESEGREGATION
PLAN.  THEREAFTER IN FEBRUARY1970, THE DISTRICT COURT WAS PRESENTED
WITH TWO ALTERNATIVE PUPIL ASSIGNMENT PLANS-- THE FINALIZED "BOARD
PLAN" AND THE "FINGER PLAN." 

THE BOARD PLAN.  AS FINALLY SUBMITTED, THE SCHOOL BOARD PLAN CLOSED
SEVEN SCHOOLS AND REASSIGNED THEIR PUPILS.  IT RESTRUCTURED SCHOOL
ATTENDANCE ZONES TO ACHIEVE GREATER RACIAL BALANCE BUT MAINTAINED
EXISTING GRADE STRUCTURES AND REJECTED TECHNIQUES SUCH AS PAIRING AND
CLUSTERING AS PART OF A DESEGREGATION EFFORT.  THE PLAN CREATED A
SINGLE ATHLETIC LEAGUE, ELIMINATED THE PREVIOUSLY RACIAL BASIS OF THE
SCHOOL BUS SYSTEM, PROVIDED RACIALLY MIXED FACULTIES AND ADMINISTRATIVE
STAFFS, AND MODIFIED ITS FREE-TRNASFER PLAN INTO AN OPTIONAL MAJORITY
TO-MINORITY TRANSFER SYSTEM. 

THE BOARD PLAN PROPOSED SUBSTANTIAL ASSIGNMENT OF NEGROES TO NINE OF
THE SYSTEM'S 10 HIGH SCHOOLS, PRODUCING 17% TO 36% NEGRO POPULATION IN
EACH.  THE PROJECTED NEGRO ATTENDANCE AT THE 10TH SCHOOL, INDEPENDENCE,
WAS 2%.  THE PROPOSED ATTENDANCE ZONES FOR THE HIGH SCHOOLS WERE
TYPICALLY SHAPED LIKE WEDGES OF A PIE, EXTENDING OUTWARD FROM THE
CENTER OF THE CITY TO THE SUBURBAN AND RURAL AREAS OF THE COUNTY IN
ORDER TO AFFORD RESIDENTS OF THE CENTER CITY AREAS ACCESS TO OUTLYING
SCHOOLS. 

AS FOR JUNIOR HIGH SCHOOLS, THE BOARD PLAN REZONED THE 21 SCHOOL
AREAS SO THAT IN 20 THE NEGRO ATTENDANCE WOULD RANGE FROM 0% TO 38%.
THE OTHER SCHOOL, LOCATED IN THE HEART OF THE NEGRO RESIDENTIAL AREA,
WAS LEFT WITH AN ENROLLMENT OF 90% NEGRO. 

THE BOARD PLAN WITH RESPECT TO ELEMENTARY SCHOOLS RELIED ENTIRELY
UPON GERRYMANDERING OF GEOGRAPHIC ZONES.  MORE THAN HALF OF THE NEGRO
ELEMENTARY PUPILS WERE LEFT IN NINE SCHOOLS THAT WERE 86% TO 100%
NEGRO; APPROXIMATELY HALF OF THE WHITE ELEMENTARY PUPILS WERE ASSIGNED
TO SCHOOLS 86% TO 100% WHITE. 

THE FINGER PLAN.  THE PLAN SUBMITTED BY THE COURT-APPOINTED EXPERT,
DR. FINGER, ADOPTED THE SCHOOL BOARD ZONING PLAN FOR SENIOR HIGH
SCHOOLS WITH ONE MODIFICATION:  IT REQUIRED THAT AN ADDITIONAL 300
NEGRO STUDENTS BE TRANSPORTED FROM THE NEGRO RESIDENTIAL AREA OF THE
CITY TO THE NEARLY ALL-WHITE INDEPENDENCE HIGH SCHOOL. 

THE FINGER PLAN FOR THE JUNIOR HIGH SCHOOLS EMPLOYED MUCH OF THE
REZONING PLAN OF THE BOARD, COMBINED WITH THE CREATION OF NINE
"SATELLITE" ZONES.  /3/  UNDER THE SATELLITE PLAN, INNER-CITY NEGRO
STUDENTS WERE ASSIGNED BY ATTENDANCE ZONES TO NINE OUTLYING
PREDOMINATELY WHITE JUNIOR HIGH SCHOOLS, THEREBY SUBSTANTIALLY
DESEGREGATING EVERY JUNIOR HIGH SCHOOL IN THE SYSTEM. 

THE FINGER PLAN DEPARTED FROM THE BOARD PLAN CHIEFLY IN ITS HANDLING
OF THE SYSTEM'S 76 ELEMENTARY SCHOOLS.  RATHER THAN RELYING SOLELY UPON
GEOGRAPHIC ZONING, DR. FINGER PROPOSED USE OF ZONING, PAIRING, AND
GROUPING TECHNIQUES, WITH THE RESULT THAT STUDENT BODIES THROUGHOUT THE
SYSTEM WOULD RANGE FROM 9% TO 38% NEGRO.  /4/ 

THE DISTRICT COURT DESCRIBED THE PLAN THUS: 

"LIKE THE BOARD PLAN, THE FINGER PLAN DOES AS MUCH BY REZONING
SCHOOL ATTENDANCE LINES AS CAN REASONABLY BE ACCOMPLISHED.  HOWEVER,
UNLIKE THE BOARD PLAN, IT DOES NOT STOP THERE.  IT GOES FURTHER AND
DESEGREGATES ALL THE REST OF THE ELEMENTARY SCHOOLS BY THE TECHNIQUE OF
GROUPING TWO OR THREE OUTLYING SCHOOLS WITH ONE BLACK INNER CITY
SCHOOL; BY TRANSPORTING WHITE STUDENTS FROM THE FIFTH AND SIXTH GRADES
FROM THE OUTLYING WHITE SCHOOLS TO THE INNER CITY BLACK SCHOOL."  UNDER
THE FINGER PLAN, NINE INNER-CITY NEGRO SCHOOLS WERE GROUPED IN THIS
MANNER WITH 24 SURBURBAN WHITE SCHOOLS. 

ON FEBRUARY 5, 1970, THE DISTRICT COURT ADOPTED THE BOARD PLAN, AS
MODIFIED BY DR. FINGER, FOR THE JUNIOR AND SENIOR HIGH SCHOOLS.  THE
COURT REJECTED THE BOARD ELEMENTARY SCHOOL PLAN AND ADOPTED THE FINGER
PLAN AS PRESENTED.  IMPLEMENTATION WAS PARTIALLY STAYED BY THE COURT OF
APPEALS FOR THE FOURTH CIRCUIT ON MARCH 5, AND THIS COURT DECLINES TO
DISTURB THE FOURTH CIRCUIT'S ORDER, 397 U.S. 978 (1970). 

ON APPEAL THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S ORDER
AS TO FACULTY DESEGREGATION AND THE SECONDARY SCHOOL PLANS, BUT VACATED
THE ORDER RESPECTING ELEMENTARY SCHOOLS.  WHILE AGREEING THAT THE
DISTRICT COURT PROPERLY DISAPPROVED THE BOARD PLAN CONCERNING THESE
SCHOOLS, THE COURT OF APPEALS FEARED THAT THE PAIRING AND GROUPING OF
ELEMENTARY SCHOOLS WOULD PLACE AN UNREASONABLE BURDEN ON THE BOARD AND
THE SYSTEM'S PUPILS.  THE CASE WAS REMANDED TO THE DISTRICT COURT FOR
RECONSIDERATION AND SUBMISSION OF FURTHER PLANS.  431 F.2D 138.  THIS
COURT GRANTED CERTIORARI, 399 U.S. 926, AND DIRECTED REINSTATEMENT OF
THE DISTRICT COURT'S ORDER PENDING FURTHER PROCEEDINGS IN THAT COURT. 

ON REMAND THE DISTRICT COURT RECEIVED TWO NEW PLANS FOR THE
ELEMENTARY SCHOOLS:  A PLAN PREPARED BY THE UNITED STATES DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE (THE HEW PLAN) BASED ON CONTIGUOUS
GROUPING AND ZONING OF SCHOOLS, AND A PLAN PREPARED BY FOUR MEMBERS OF
THE NINE-MEMBER SCHOOL BOARD (THE MINORITY PLAN) ACHIEVING
SUBSTANTIALLY THE SAME RESULTS AS THE FINGER PLAN BUT APPARENTLY WITH
SLIGHTLY LESS TRANSPORTATION.  A MAJORITY OF THE SCHOOL BOARD DECLINES
TO AMEND ITS PROPOSAL.  AFTER A LENGTHY EVIDENTIARY HEARING THE
DISTRICT COURT CONCLUDED THAT ITS OWN PLAN (THE FINGER PLAN), THE
MINORITY PLAN, AND AN EARLIER DRAFT OF THE FINGER PLAN WERE ALL
REASONABLE AND ACCEPTABLE.  IT DIRECTED THE BOARD TO ADOPT ONE OF THE
THREE OR IN THE ALTERNATIVE TO COME FORWARD WITH A NEW, EQUALLY
EFFECTIVE PLAN OF ITS OWN; THE COURT ORDERED THAT THE FINGER PLAN WOULD
REMAIN IN EFFECT IN THE EVENT THE SCHOOL BOARD DECLINED TO ADOPT A NEW
PLAN.  ON AUGUST 7, THE BOARD INDICATED IT WOULD "ACQUIESCE" IN THE
FINGER PLAN, REITERATING ITS VIEW THAT THE PLAN WAS UNREASONABLE.  THE
DISTRICT COURT, BY ORDER DATED AUGUST 7, 1970, DIRECTED THAT THE FINGER
PLAN REMAIN IN EFFECT. 

        II 

NEARLY 17 YEARS AGO THIS COURT HELD, IN EXPLICIT TERMS, THAT STATE
IMPOSED SEGREGATION BY RACE IN PUBLIC SCHOOLS DENIES EQUAL PROTECTION
OF THE LAWS.  AT NO TIME HAS THE COURT DEVIATED IN THE SLIGHTEST DEGREE
FROM THAT HOLDING OR ITS CONSTITUTIONAL UNDERPINNINGS.  NONE OF THE
PARTIES BEFORE US CHALLENGES THE COURT'S DECISION OF MAY 17, 1954,
THAT 

"IN THE FIELD OF PUBLIC EDUCATION THE DOCTRINE OF 'SEPARATE BUT
EQUAL' HAS NO PLACE.  SEPARATE EDUCATIONAL FACILITIES ARE INHERENTLY
UNEQUAL.  THEREFORE, WE HOLD THAT THE PLAINTIFFS AND OTHERS IMILARLY
SITUATED . . . ARE, BY REASON OF THE SEGREGATION COMPLAINED OF,
DEPRIVED OF THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE
FOURTEENTH AMENDMENT . . . . 

     "BECAUSE THESE ARE CLASS ACTIONS, BECAUSE OF THE WIDE

  APPLICABILITY OF THIS DECISION, AND BECAUSE OF THE GREAT VARIETY

  OF LOCAL CONDITIONS, THE FORMULATION OF DECREES IN THESE CASES

  PRESENTS PROBLEMS OF CONSIDERABLE COMPLEXITY."  BROWN V. BOARD OF

  EDUCATION, SUPRA, AT 495. 

NONE OF THE PARTIES BEFORE US QUESTIONS THE COURT'S 1955 HOLDING IN
BROWN II, THAT 

"SCHOOL AUTHORITIES HAVE THE PRIMARY RESPONSIBILITY FOR ELUCIDATING,
ASSESSING, AND SOLVING THESE PROBLEMS; COURTS WILL HAVE TO CONSIDER
WHETHER THE ACTION OF SCHOOL AUTHORITIES CONSTITUTES GOOD FAITH
IMPLEMENTATION OF THE GOVERNING CONSTITUTIONAL PRINCIPLES.  BECAUSE OF
THEIR PROXIMITY TO LOCAL CONDITIONS AND THE POSSIBLE NEED FOR FURTHER
HEARINGS, THE COURTS WHICH ORIGINALLY HEARD THESE CASES CAN BEST
PERFORM THIS JUDICIAL APPRAISAL.  ACCORDINGLY, WE BELIEVE IT
APPROPRIATE TO REMAND THE CASES TO THOSE COURTS. 

     "IN FASHIONING AND EFFECTUATING THE DECREES, THE COURTS WILL
BE

GUIDED BY EQUITABLE PRINCIPLES.  TRADITIONALLY, EQUITY HAS BEEN

  CHARACTERIZED BY A PRACTICAL FLEXIBILITY IN SHAPING ITS REMEDIES

  AND BY A FACILITY FOR ADJUSTING AND RECONCILING PUBLIC AND

  PRIVATE NEEDS.  THESE CASES CALL FOR THE EXERCISE OF THESE

  TRADITIONAL ATTRIBUTES OF EQUITY POWER.  AT STAKE IS THE PERSONAL

  INTEREST OF THE PLAINTIFFS IN ADMISSION TO PUBLIC SCHOOLS AS SOON

  AS PRACTICABLE ON A NONDISCRIMINATORY BASIS.  TO EFFECTUATE THIS

  INTEREST MAY CALL FOR ELIMINATION OF A VARIETY OF OBSTACLES IN

  MAKING THE TRANSITION TO SCHOOL SYSTEMS OPERATED IN ACCORDANCE

 WITH THE CONSTITUTIONAL PRINCIPLES SET FORTH IN OUR MAY 17, 1954,

  DECISION.  COURTS OF EQUITY MAY PROPERLY TAKE INTO ACCOUNT THE

  PUBLIC INTEREST IN THE ELIMINATION OF SUCH OBSTACLES IN A

  SYSTEMATIC AND EFFECTIVE MANNER.  BUT IT SHOULD GO WITHOUT SAYING

  THAT THE VITALITY OF THESE CONSTITUTIONAL PRINCIPLES CANNOT BE

  ALLOWED TO YIELD SIMPLY BECAUSE OF DISAGREEMENT WITH THEM." 

  BROWN V. BOARD OF EDUCATION, 349 U.S. 294, 299-300 (1955). 

OVER THE 16 YEARS SINCE BROWN II, MANY DIFFICULTIES WERE ENCOUNTERED
IN IMPLEMENTATION OF THE BASIC CONSTITUTIONAL REQUIREMENT THAT THE
STATE NOT DISCRIMINATE BETWEEN PUBLIC SCHOOL CHILDREN ON THE BASIS OF
THEIR RACE.  NOTHING IN OUR NATIONAL EXPERIENCE PRIOR TO 1955 PREPARED
ANYONE FOR DEALING WITH CHANGES AND ADJUSTMENTS OF THE MAGNITUDE AND
COMPLEXITY ENCOUNTERED SINCE THEN.  DELIBERATE RESISTANCE OF SOME TO
THE COURT'S MANDATES HAS IMPEDED THE GOOD-FAITH EFFORTS OF OTHERS TO
BRING SCHOOL SYSTEMS INTO COMPLIANCE.  THE DETAIL AND NATURE OF THESE
DILATORY TACTICS HAVE BEEN NOTED FREQUENTLY BY THIS COURT AND OTHER
COURTS.     BY THE TIME THE COURT CONSIDERED GREEN V. COUNTY SCHOOL
BOARD, 391 U.S. 430, IN 1968, VERY LITTLE PROGRESS HAD BEEN MADE IN
MANY AREAS WHERE DUAL SCHOOL SYSTEMS HAD HISTORICALLY BEEN MAINTAINED
BY OPERATION OF STATE LAWS.  IN GREEN, THE COURT WAS CONFRONTED WITH A
RECORD OF A FREEDOM-OF-CHOICE PROGRAM THAT THE DISTRICT COURT HAD FOUND
TO OPERATE IN FACT TO PRESERVE A DUAL SYSTEM MORE THAN A DECADE AFTER
BROWN II.  WHILE ACKNOWLEDGING THAT A FREEDOM-OF-CHOICE CONCEPT COULD
BE A VALID REMEDIAL MEASURE IN SOME CIRCUMSTANCES, ITS FAILURE TO BE
EFFECTIVE IN GREEN REQUIRED THAT:     "THE BURDEN ON A SCHOOL BOARD
TODAY IS TO COME FORWARD WITH A PLAN THAT PROMISES REALISTICALLY TO
WORK . . . NOW . . . UNTIL IT IS CLEAR THAT STATE-IMPOSED SEGREGATION
HAS BEEN COMPLETELY REMOVED."  GREEN, SUPRA, AT 439. 

THIS WAS PLAIN LANGUAGE, YET THE 1969 TERM OF COURT BROUGHT FRESH
EVIDENCE OF THE DILATORY TACTICS OF MANY SCHOOL AUTHORITIES.  ALEXANDER
V. HOLMES COUNTY BOARD OF EDUCATION, 396 U.S. 19, RESTATED THE BASIC
OBLIGATION ASSERTED IN GRIFFIN V. SCHOOL BOARD, 377 U.S. 218, 234
(1964), AND GREEN, SUPRA, THAT THE REMEDY MUST BE IMPLEMENTED
FORTHWITH. 

THE PROBLEMS ENCOUNTERED BY THE DISTRICT COURT AND COURTS OF APPEALS
MAKE PLAIN THAT WE SHOULD NOW TRY TO AMPLIFY GUIDELINES, HOWEVER
INCOMPLETE AND IMPERFECT, FOR THE ASSISTANCE OF SCHOOL AUTHORITIES AND
COURTS.  /5/  THE FAILURE OF LOCAL AUTHORITIES TO MEET THEIR
CONSTITUTIONAL OBLIGATIONS AGGRAVATED THE MASSIVE PROBLEM OF CONVERTING
FROM THE STATE-ENFORCED DISCRIMINATION OF RACIALLY SEPARATE SCHOOL
SYSTEMS.  THIS PROCESS HAS BEEN RENDERED MORE DIFFICULT BY CHANGES
SINCE 1954 IN THE STRUCTURE AND PATTERNS OF COMMUNITIES, THE GROWTH OF
STUDENT POPULATION, /6/  MOVEMENT OF FAMILIES, AND OTHER CHANGES, SOME
OF WHICH HAD MARKED IMPACT ON SCHOOL PLANNING, SOMETIMES NEUTRALIZING
OR NEGATING REMEDIAL ACTION BEFORE IT WAS FULLY IMPLEMENTED.  RURAL
AREAS ACCUSTOMED FOR HALF A CENTURY TO THE CONSOLIDATED SCHOOL SYSTEMS
IMPLEMENTED BY BUS TRANSPORTATION COULD MAKE ADJUSTMENTS MORE READILY
THAN METROPOLITAN AREAS WITH DENSE AND SHIFTING POPULATION, NUMEROUS
SCHOOLS, CONGESTED AND COMPLEX TRAFFIC PATTERNS. 

        III 

THE OBJECTIVE TODAY REMAINS TO ELIMINATE FROM THE PUBLIC SCHOOLS ALL
VESTIGES OF STATE-IMPOSED SEGREGATION.  SEGREGATION WAS THE EVIL STRUCK
DOWN BY BROWN I AS CONTRARY TO THE EQUAL PROTECTION GUARANTEES OF THE
CONSTITUTION.  THAT WAS THE VIOLATION SOUGHT TO BE CORRECTED BY THE
REMEDIAL MEASURES OF BROWN II.  THAT WAS THE BASIS FOR THE HOLDING IN
GREEN THAT SCHOOL AUTHORITIES ARE "CLEARLY CHARGED WITH THE AFFIRMATIVE
DUTY TO TAKE WHATEVER STEPS MIGHT BE NECESSARY TO CONVERT TO A UNITARY
SYSTEM IN WHICH RACIAL DISCRIMINATION WOULD BE ELIMINATED ROOT AND
BRANCH."  391 U.S., AT 437-438. 

IF SCHOOL AUTHORITIES FAIL IN THEIR AFFIRMATIVE OBLIGATIONS UNDER
THESE HOLDINGS, JUDICIAL AUTHORITY MAY BE INVOKED.  ONCE A RIGHT AND A
VIOLATION HAVE BEEN SHOWN, THE SCOPE OF A DISTRICT COURT'S EQUITABLE
POWERS TO REMEDY PAST WRONGS IS BROAD, FOR BREADTH AND FLEXIBILITY ARE
INHERENT IN EQUITABLE REMEDIES. 

"THE ESSENCE OF EQUITY JURISDICTION HAS BEEN THE POWER OF THE
CHANCELLOR TO DO EQUITY AND TO MOULD EACH DECREE TO THE NECESSITIES OF
THE PARTICULAR CASE.  FLEXIBILITY RATHER THAN RIGIDITY HAS
DISTINGUISHED IT.  THE QUALITIES OF MERCY AND PRACTICALITY HAVE MADE
EQUITY THE INSTRUMENT FOR NICE ADJUSTMENT AND RECONCILIATION BETWEEN
THE PUBLIC INTEREST AND PRIVATE NEEDS AS WELL AS BETWEEN COMPETING
PRIVATE CLAIMS."  HECHT CO. V. BOWLES, 321 U.S. 321, 329-330 (1944),
CITED IN BROWN II, SUPRA, AT 300. 

THIS ALLOCATION OF RESPONSIBLITY ONCE MADE, THE COURT ATTEMPTED FROM
TIME TO TIME TO PROVIDE SOME GUIDELINES FOR THE EXERCISE OF THE
DISTRICT JUDGE'S DISCRETION AND FOR THE REVIEWING FUNCTION OF THE
COURTS OF APPEALS.  HOWEVER, A SCHOOL DESEGREGATION CASE DOES NOT
DIFFER FUNDAMENTALLY FROM OTHER CASES INVOLVING THE FRAMING OF
EQUITABLE REMEDIES TO REPAIR THE DENIAL OF A CONSTITUTIONAL RIGHT.  THE
TASK IS TO CORRECT, BY A BALANCING OF THE INDIVIDUAL AND COLLECTIVE
INTERESTS, THE CONDITION THAT OFFENDS THE CONSTITUTION. 

IN SEEKING TO DEFINE EVEN IN BROAD AND GENERAL TERMS HOW FAR THIS
REMEDIAL POWER EXTENDS IT IS IMPORTANT TO REMEMBER THAT JUDICIAL POWERS
MAY BE EXERCISED ONLY ON THE BASIS OF A CONSTITUTIONAL VIOLATION. 
REMEDIAL JUDICIAL AUTHORITY DOES NOT PUT JUDGES AUTOMATICALLY IN THE
SHOES OF SCHOOL AUTHORITIES WHOSE POWERS ARE PLENARY.  JUDICIAL
AUTHORITY ENTERS ONLY WHEN LOCAL AUTHORITY DEFAULTS. 

SCHOOL AUTHORITIES ARE TRADITIONALLY CHARGED WITH BROAD POWER TO
FORMULATE AND IMPLEMENT EDUCATIONAL POLICY AND MIGHT WELL CONCLUDE, FOR
EXAMPLE, THAT IN ORDER TO PREPARE STUDENTS TO LIVE IN A PLURALISTIC
SOCIETY EACH SCHOOL SHOULD HAVE A PRESCRIBED RATIO OF NEGRO TO WHITE
STUDENTS REFLECTING THE PROPORTION FOR THE DISTRICT AS A WHOLE.  TO DO
THIS AS AN EDUCATIONAL POLICY IS WITHIN THE BROAD DISCRETIONARY POWERS
OF SCHOOL AUTHORITIES; ABSENT A FINDING OF A CONSTITUTIONAL VIOLATION,
HOWEVER, THAT WOULD NOT BE WITHIN THE AUTHORITY OF A FEDERAL COURT.  AS
WITH ANY EQUITY CASE, THE NATURE OF THE VIOLATION DETERMINES THE SCOPE
OF THE REMEDY.  IN DEFAULT BY THE SCHOOL AUTHORITIES OF THEIR
OBLIGATION TO PROFFER ACCEPTABLE REMEDIES, A DISTRICT COURT HAS BROAD
POWER TO FASHION A REMEDY THAT WILL ASSURE A UNITARY SCHOOL SYSTEM. 

THE SCHOOL AUTHORITIES ARGUE THAT THE EQUITY POWERS OF FEDERAL
DISTRIT COURTS HAVE BEEN LIMITED BY TITLE IV OF THE CIVIL RIGHTS ACT OF
1964, 42 U.S.C. 2000C.  THE LANGUAGE AND THE HISTORY OF TITLE IV SHOWS
THAT IT WAS ENACTED NOT TO LIMIT BUT TO DEFINE THE ROLE OF THE FEDERAL
GOVERNMENT IN THE IMPLEMENTATION OF THE BROWN I DECISION.  IT
AUTHORIZES THE COMMISSIONER OF EDUCATION TO PROVIDE TECHNICAL
ASSISTANCE TO LOCAL BOARDS IN THE PREPARATION OF DESEGREGATION PLANS,
TO ARRANGE "TRAINING INSTITUTES" FOR SCHOOL PERSONNEL INVOLVED IN
DESEGREGATION EFFORTS, AND TO MAKE GRANTS DIRECTLY TO SCHOOLS TO EASE
THE TRANSITION TO UNITARY SYSTEMS.  IT ALSO AUTHORIZES THE ATTORNEY
GENERAL, IN SPECIFIED CIRCUMSTANCES, TO INITIATE FEDERAL DESEGREGATION
SUITS.  SECTION 2000CB) DEFINES "DESEGREGATION" AS IT IS USED IN TITLE
IV: 

     "'DESEGREGATION' MEANS THE ASSIGNMENT OF STUDENTS TO PUBLIC

  SCHOOLS WITHOUT REGARD TO THEIR RACE, COLOR, RELIGION, OR

  NATIONAL ORIGIN, BUT 'DESEGREGATION' SHALL NOT MEAN THE

  ASSIGNMENT OF STUDENTS TO PUBLIC SCHOOLS IN ORDER TO OVERCOME

  RACIAL IMBALANCE." 

SUITS, CONTAINS THE FOLLOWING PROVISO: 

"NOTHING HEREIN SHALL EMPOWER ANY OFFICIAL OR COURT OF THE UNITED
STATES TO ISSUE ANY ORDER SEEKING TO ACHIEVE A RACIAL BALANCE IN ANY
SCHOOL BY REQUIRING THE TRANSPORTATION OF PUPILS OR STUDENTS FROM ONE
SCHOOL TO ANOTHER OR ONE SCHOOL DISTRICT TO ANOTHER IN ORDER TO ACHIEVE
SUCH RACIAL BALANCE, OR OTHERWISE ENLARGE THE EXISTING POWER OF THE
COURT TO INSURE COMPLIANCE WITH CONSTITUTIONAL STANDARDS." 

ON THEIR FACE, THE SECTIONS QUOTED PURPORT ONLY TO INSURE THAT THE
PROVISIONS OF TITLE IV OF THE CIVIL RIGHTS ACT OF 1964 WILL NOT BE READ
AS GRANTING NEW POWERS.  THE PROVISO IN SEC. 2000C-6 IS IN TERMS
DESIGNED TO FORECLOSE ANY INTERPRETATION OF THE ACT AS EXPANDING THE
EXISTING POWERS OF FEDERAL COURTS TO ENFORCE THE EQUAL PROTECTION
CLAUSE.  THERE IS NO SUGGESTION OF AN INTENTION TO RESTRICT THOSE
POWERS OR WITHDRAW FROM COURTS THEIR HISTORIC EQUITABLE REMEDIAL
POWERS.  THE LEGISLATIVE HISTORY OF TITLE IV INDICATES THAT CONGRESS
WAS CONCERNED THAT THE ACT MIGHT BE READ AS CREATING A RIGHT OF ACTION
UNDER THE FOURTEENTH AMENDMENT IN THE SITUATION OF SO-CALLED "DE FACTO
SEGREGATION," WHERE RACIAL IMBALANCE EXISTS IN THE SCHOOL BUT WITH NO
SHOWING THAT THIS WAS BROUGHT ABOUT BY DISCRIMINATORY ACTION OF STATE
AUTHORITIES.  IN SHORT, THERE IS NOTHING IN THE ACT THAT PROVIDES US
MATERIAL ASSISTANCE IN ANSWERING THE QUESTION OF REMEDY FOR STATE
IMPOSED SEGREGATION IN VIOLATION OF BROWN I. THE BASIS OF OUR DECISION
MUST BE THE PROHIBITION OF THE FOURTEENTH AMENDMENT THAT NO STATE SHALL
"DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE
LAWS." 

        IV 

WE TURN NOW TO THE PROBLEM OF DEFINING WITH MORE PARTICULARITY THE
RESPONSIBILITIES OF SCHOOL AUTHORITIES IN DESEGREGATING A STATE
ENFORCED DUAL SCHOOL SYSTEM IN LIGHT OF THE EQUAL PROTECTION CLAUSE. 
ALTHOUGH THE SEVERAL RELATED CASES BEFORE US ARE PRIMARILY CONCERNED
WITH PROBLEMS OF STUDENT ASSIGNMENT, IT MAY BE HELPFUL TO BEGIN WITH A
BRIEF DISCUSSION OF OTHER ASPECTS OF THE PROCESS. 

IN GREEN, WE POINTED OUT THAT EXISTING POLICY AND PRACTICE WITH
REGARD TO FACULTY, STAFF, TRANSPORTATION, EXTRACURRICULAR ACTIVITIES,
AND FACILITIES WERE AMONG THE MOST IMPORTANT INDICIA OF A SEGREGATED
SYSTEM.  391 U.S., AT 435.  INDEPENDENT OF STUDENT ASSIGNMENT, WHERE IT
IS POSSIBLE TO IDENTIFY A "WHITE SCHOOL" OR A "NEGRO SCHOOL" SIMPLY BY
REFERENCE TO THE RACIAL COMPOSITION OF TEACHERS AND STAFF, THE QUALITY
OF SCHOOL BUILDINGS AND EQUIPMENT, OR THE ORGANIZATION OF SPORTS
ACTIVITIES, A PRIMA FACIE CASE OF VIOLATION OF SUBSTANTIVE
CONSTITUTIONAL RIGHTS UNDER THE EQUAL PROTECTION CLAUSE IS SHOWN. 

WHEN A SYSTEM HAS BEEN DUAL IN THESE RESPECTS, THE FIRST REMEDIAL
RESPONSIBILITY OF SCHOOL AUTHORITIES IS TO ELIMINATE INVIDIOUS RACIAL
DISTINCTIONS.  WITH RESPECT TO SUCH MATTERS AS TRANSPORTATION,
SUPPORTING PERSONNEL, AND EXTRACURRICULAR ACTIVITIES, NO MORE THAN THIS
MAY BE NECESSARY.  SIMILAR CORRECTIVE ACTION MUST BE TAKEN WITH REGARD
TO THE MAINTENANCE OF BUILDINGS AND THE DISTRIBUTION OF EQUIPMENT.  IN
THESE AREAS, NORMAL ADMINISTRATIVE PRACTICE SHOULD PRODUCE SCHOOLS OF
LIKE QUALITY, FACILITIES, AND STAFFS.  SOMETHING MORE MUST BE SAID,
HOWEVER, AS TO FACULTY ASSIGNMENT AND NEW SCHOOL CONSTRUCTION. 

IN THE COMPANION DAVIS CASE, POST, P. 33, THE MOBILE SCHOOL BOARD
HAS ARGUED THAT THE CONSTITUTION REQUIRES THAT TEACHERS BE ASSIGNED ON
A "COLOR BLIND" BASIS.  IT ALSO ARGUES THAT THE CONSTITUTION PROHIBITS
DISTRICT COURTS FROM USING THEIR EQUITY POWER TO ORDER ASSIGNMENT OF
TEACHERS TO ACHIEVE A PARTICULAR DEGREE OF FACULTY DESEGREGATION.  WE
REJECT THAT CONTENTION. 

IN UNITED STATES V. MONTGOMERY COUNTY BOARD OF EDUCATION, 395 U.S.
225 (1969), THE DISTRICT COURT SET AS A GOAL A PLAN OF FACULTY
ASSIGNMENT IN EACH SCHOOL WITH A RATIO OF WHITE TO NEGRO FACULTY
MEMBERS SUBSTANTIALLY THE SAME THROUGHOUT THE SYSTEM.  THIS ORDER WAS
PREDICATED ON THE DISTRICT COURT FINDING THAT: 

     "THE EVIDENCE DOES NOT REFLECT ANY REAL ADMINISTRATIVE
PROBLEMS

  INVOLVED IN IMMEDIATELY DESEGREGATING THE SUBSTITUTE, TEACHERS,

  THE STUDENT TEACHERS, THE NIGHT SCHOOL FACULTIES, AND IN THE

  EVOLVEMENT OF A REALLY LEGALLY ADEQUATE PROGRAM FOR THE

  SUBSTANTIAL DESEGREGATION OF THE FACULTIES OF ALL SCHOOLS IN THE

  SYSTEM COMMENCING WITH THE SCHOOL YEAR 1968-69."  QUOTED AT 395

  U.S., AT 232. 

THE DISTRICT COURT IN MONTGOMERY THEN PROCEEDED TO SET AN INITIAL
RATIO FOR THE WHOLE SYSTEM OF AT LEAST TWO NEGRO TEACHERS OUT OF EACH
12 IN ANY GIVEN SCHOOL.  THE COURT OF APPEALS MODIFIED THE ORDER BY
ELIMINATING WHAT IT REGARDED AS "FIXED MATHEMATICAL" RATIOS OF FACULTY
AND SUBSTITUTED AN INITIAL REQUIREMENT OF "SUBSTANTIALLY OR
APPROXIMATELY" A FIVE-TO-ONE RATIO.  WITH RESPECT TO THE FUTURE, THE
COURT OF APPEALS HELD THAT THE NUMERICAL RATIO SHOULD BE ELIMINATED AND
THAT COMPLIANCE SHOULD NOT BE TESTED SOLELY BY THE ACHIEVEMENT OF
SPECIFIED PROPORTIONS.  ID., AT 234. 

WE RESERVED THE COURT OF APPEALS AND RESTORED THE DISTRICT COURT'S
ORDER IN ITS ENTIRETY, HOLDING THAT THE ORDER OF THE DISTRICT JUDGE 

"WAS ADOPTED IN THE SPIRIT OF THIS COURT'S OPINION IN GREEN . . . IN
THAT HIS PLAN 'PROMISES REALISTICALLY TO WORK, AND PROMISES
REALISTICALLY TO WORK NOW.'  THE MODIFICATIONS ORDERED BY THE PANEL OF
THE COURT OF APPEALS, WHILE OF COURSE NOT INTENDED TO DO SO, WOULD, WE
THINK, TAKE FROM THE ORDER SOME OF ITS CAPACITY TO EXPEDITE, BY MEANS
OF SPECIFIC COMMANDS, THE DAY WHEN A COMPLETELY UNIFIED, UNITARY,
NONDISCRIMINATORY SCHOOL SYSTEM BECOMES A REALITY INSTEAD OF A HOPE . .
. . WE ALSO BELIEVE THAT UNDER ALL THE CIRCUMSTANCES OF THIS CASE WE
FOLLOW THE ORIGINAL PLAN OUTLINED IN BROWN II . . . BY ACCEPTING THE
MORE SPECIFIC AND EXPEDITIOUS ORDER OF (DISTRICT) JUDGE JOHNSON . . .
."  395 U.S., AT 235-236 (EMPHASIS IN ORIGINAL).  THE PRINCIPLES OF
MONTGOMERY HAVE BEEN PROPERLY FOLLOWED BY THE DISTRICT COURT AND THE
COURT OF APPEALS IN THIS CASE. 

THE CONSTRUCTION OF NEW SCHOOLS AND THE CLOSING OF OLD ONES ARE TWO
OF THE MOST IMPORTANT FUNCTIONS OF LOCAL SCHOOL AUTHORITIES AND ALSO
TWO OF THE MOST COMPLEX.  THEY MUST DECIDE QUESTIONS OF LOCATION AND
CAPACITY IN LIGHT OF POPULATION GROWTH, FINANCES, LAND VALUES, SITE
AVAILABILITY, THROUGH AN ALMOST ENDLESS LIST OF FACTORS TO BE
CONSIDERED.  THE RESULT OF THIS WILL BE A DECISION WHICH, WHEN COMBINED
WITH ONE TECHNIQUE OR ANOTHER OF STUDENT ASSIGNMENT, WILL DETERMINE THE
RACIAL COMPOSITION OF THE STUDENT BODY IN EACH SCHOOL IN THE SYSTEM. 
OVER THE LONG RUN, THE CONSEQUENCES OF THE CHOICES WILL BE FAR
REACHING.  PEOPLE GRAVITATE TOWARD SCHOOL FACILITIES, JUST AS SCHOOLS
ARE LOCATED IN RESPONSE TO THE NEEDS OF PEOPLE.  THE LOCATION OF
SCHOOLS MAY THUS INFLUENCE THE PATTERNS OF RESIDENTIAL DEVELOPMENT OF A
METROPOLITAN AREA AND HAVE IMPORTANT IMPACT ON COMPOSITION OF INNER
CITY NEIGHBORHOODS. 

IN THE PAST, CHOICES IN THIS RESPECT HAVE BEEN USED AS A POTENT
WEAPON FOR CREATING OR MAINTAINING A STATE-SEGREGATED SCHOOL SYSTEM. 
IN ADDITION TO THE CLASSIC PATTERN OF BUILDING SCHOOLS SPECIFICALLY
INTENDED FOR NEGRO OR WHITE STUDENTS, SCHOOL AUTHORITIES HAVE
SOMETIMES, SINCE BROWN, CLOSED SCHOOLS WHICH APPEARED LIKELY TO BECOME
RACIALLY MIXED THROUGH CHANGES IN NEIGHBORHOOD RESIDENTIAL PATTERNS. 
THIS WAS SOMETIMES ACCOMPANIED BY BUILDING NEW SCHOOLS IN THE AREAS OF
WHITE SUBURBAN EXPANSION FARTHEST FROM NEGRO POPULATION CENTERS IN
ORDER TO MAINTAIN THE SEPARATION OF THE RACES WITH A MINIMUM DEPARTURE
FROM THE FORMAL PRINCIPLES OF "NEIGHBORHOOD ZONING."  SUCH A POLICY
DOES MORE THAN SIMPLY INFLUENCE THE SHORT-RUN COMPOSITION OF THE
STUDENT BODY OF A NEW SCHOOL.  IT MAY WELL PROMOTE SEGREGATED
RESIDENTIAL PATTERNS, WHICH, WHEN COMBINED WITH "NEIGHBORHOOD ZONING,"
FURTHER LOCK THE SCHOOL SYSTEM INTO THE MOLD OF SEPARATION OF THE
RACES.  UPON A PROPER SHOWING A DISTRICT COURT MAY CONSIDER THIS IN
FASHIONING A REMEDY.     IN ASCERTAINING THE EXISTENCE OF A PATTERN OF
SCHOOL CONSTRUCTION AND ABANDONMENT IS THUS A FACTOR OF GREAT WEIGHT. 
IN DEVISING REMEDIES WHERE LEGALLY IMPOSED SEGREGATION HAS BEEN
ESTABLISHED, IT IS THE RESPONSIBILITY OF LOCAL AUTHORITIES AND DISTRICT
COURTS TO SEE TO IT THAT FUTURE SCHOOL CONSTRUCTION AND ABANDONMENT ARE
NOT USED AND DO NOT SERVE TO PERPETUATE OR RE-ESTABLISH THE DUAL
SYSTEM.  WHEN NECESSARY, DISTRICT COURTS SHOULD RETAIN JURISDICTION TO
ASSURE THAT THESE RESPONSIBILITIES ARE CARRIED OUT.  CF. UNITED STATES
V. BOARD OF PUBLIC INSTRUCTION, 395 F.2D 66 (CA5 1968); BREWER V.
SCHOOL BOARD, 397 F.2D (CA4 1968). 

        V 

THE CENTRAL ISSUE IN THIS CASE IS THAT OF STUDENT ASSIGNMENT, AND
THERE ARE ESSENTIALLY FOUR PROBLEM AREAS: 

(1) TO WHAT EXTENT RACIAL BALANCE OR RACIAL QUOTAS MAY BE USED AS AN
IMPLEMENT IN A REMEDIAL ORDER TO CORRECT A PREVIOUSLY SEGREGATED
SYSTEM; 

(2) WHETHER EVERY ALL-NEGRO AND ALL-WHITE SCHOOL MUST BE ELIMINATED
AS AN INDISPENSABLE PART OF A REMEDIAL PROCESS OF DESEGREGATION; 

(3) WHAT THE LIMITS ARE, IF ANY, ON THE REARRANGEMENT OF SCHOOL
DISTRICTS AND ATTENDANCE ZONES, AS A REMEDIAL MEASURE; AND 

(4) WHAT THE LIMITS ARE, IF ANY, ON THE USE OF TRANSPORTATION
FACILITIES TO CORRECT STATE-ENFORCED RACIAL SCHOOL SEGREGATION. 

(1) RACIAL BALANCES OR RACIAL QUOTAS. 

THE CONSTANT THEME AND THRUST OF EVERY HOLDING FROM BROWN I TO DATE
IS THAT STATE-ENFORCED SEPARATION OF RACES IN PUBLIC SCHOOLS IS
DISCRIMINATION THAT VIOLATES THE EQUAL PROTECTION CLAUSE.  THE REMEDY
COMMANDED WAS TO DISMANTLE DUAL SCHOOL SYSTEMS. 

WE ARE CONCERNED IN THESE CASES WITH THE ELIMINATION OF THE
DISCRIMINATION INHERENT IN THE DUAL SCHOOL SYSTEMS, NOT WITH MYRIAD
FACTORS OF HUMAN EXISTENCE WHICH CAN CAUSE DISCRIMINATION IN A
MULTITUDE OF WAYS ON RACIAL, RELIGIOUS, OR ETHNIC GROUNDS.  THE TARGET
OF THE CASES FROM BROWN I TO THE PRESENT WAS THE DUAL SCHOOL SYSTEM. 
THE ELIMINATION OF RACIAL DISCRIMINATION IN PUBLIC SCHOOLS IS A LARGE
TASK AND ONE THAT SHOULD NOT BE RETARDED BY EFFORTS TO ACHIEVE BROADER
PURPOSES LYING BEYOND THEIR SCOPE, ALTHOUGH DESEGREGATION OF SCHOOLS
ULTIMATELY WILL HAVE IMPACT ON OTHER FORMS OF DISCRIMINATION.  WE DO
NOT REACH IN THIS CASE THE QUESTION WHETHER A SHOWING THAT SCHOOL
SEGREGATION IS A CONSEQUENCE OF OTHER TYPES OF STATE ACTION, WITHOUT
ANY DISCRIMINATORY ACTION BY THE SCHOOL AUTHORITIES, IS A
CONSTITUTIONAL VIOLATION REQUIRING REMEDIAL ACTION BY A SCHOOL
DESEGREGATION DECREE.  THIS CASE DOES NOT PRESENT THAT QUESTION AND WE
THEREFORE DO NOT DECIDE IT. 

OUR OBJECTIVE IN DEALING WITH THE ISSUES PRESENTED BY THESE CASES IS
TO SEE THAT SCHOOL AUTHORITIES EXCLUDE NO PUPIL OF A RACIAL MINORITY
FROM ANY SCHOOL, DIRECTLY OR INDIRECTLY, ON ACCOUNT OF RACE; IT DOES
NOT AND CANNOT EMBRACE ALL THE PROBLEMS OF RACIAL PREJUDICE, EVEN WHEN
THOSE PROBLEMS CONTRIBUTE TO DISPROPORTIONATE RACIAL CONCENTRATIONS IN
SOME SCHOOLS. 

IN THIS CASE IT IS URGED THAT THE DISTRICT COURT HAS IMPOSED A
RACIAL BALANCE REQUIREMENT OF 71%-29% ON INDIVIDUAL SCHOOLS.  THE FACT
THAT NO SUCH OBJECTIVE WAS ACTUALLY ACHIEVED-- AND WOULD APPEAR TO BE
IMPOSSIBLE-- TENDS TO BLUNT THAT CLAIM, YET IN THE OPINION AND ORDER OF
THE DISTRICT COURT OF DECEMBER 1, 1969, WE FIND THAT COURT DIRECTING 

"THAT EFFORTS SHOULD BE MADE TO REACH A 71-29 RATIO IN THE VARIOUS
SCHOOLS SO THAT THERE WILL BE NO BASIS FOR CONTENDING THAT ONE SCHOOL
IS RACIALLY DIFFERENT FROM THE OTHERS . . . , (THAT NO SCHOOL (SHOULD)
BE OPERATED WITH AN ALL-BLACK OR PREDOMINANTLY BLACK STUDENT BODY,
(AND) (THAT PUPILS OF ALL GRADES (SHOULD) BE ASSIGNED IN SUCH A WAY
THAT AS NEARLY AS PRACTICABLE THE VARIOUS SCHOOLS AT VARIOUS GRADE
GRADE LEVELS HAVE ABOUT THE SAME PROPORTION OF BLACK AND WHITE
STUDENTS." 

THE DISTRICT JUDGE WENT ON TO ACKNOWLEDGE THAT VARIATION "FROM THAT
NORM MAY BE UNAVOIDABLE."  THIS CONTAINS INTIMATIONS THAT THE "NORM" IS
A FIXED MATHEMATICAL RACIAL BALANCE REFLECTING THE PUPIL CONSTITUENCY
OF THE SYSTEM.  IF WE WERE TO READ THE HOLDING OF THE DISTRICT COURT TO
REQUIRE, AS A MATTER OF SUBSTANTIVE CONSTITUTIONAL RIGHT, ANY
PARTICULAR DEGREE OF RACIAL BALANCE OR MIXING, THAT APPROACH WOULD BE
DISAPPROVED AND WE WOULD BE OBLIGED TO REVERSE.  THE CONSTITUTIONAL
COMMAND TO DESEGREGATE SCHOOLS DOES NOT MEAN THAT EVERY SCHOOL IN EVERY
COMMUNITY MUST ALWAYS REFLECT THE RACIAL COMPOSITION OF THE SCHOOL
SYSTEM AS A WHOLE. 

AS THE VOLUMINOUS RECORD IN THIS CASE SHOWS, /7/  THE PREDICATE FOR
THE DISTRICT COURT'S USE OF THE 71%-29% RATIO WAS TWOFOLD:  FIRST, ITS
EXPRESS FINDING, APPROVED BY THE COURT OF APPEALS AND NOT CHALLENGED
HERE, THAT A DUAL SCHOOL SYSTEM HAD BEEN MAINTAINED BY THE SCHOOL
AUTHORITIES AT LEAST UNTIL 1969; SECOND, ITS FINDING, ALSO APPROVED BY
THE COURT OF APPEALS, THAT THE SCHOOL BOARD HAD TOTALLY DEFAULTED IN
ITS ACKNOWLEDGED DUTY TO COME FORWARD WITH AN ACCEPTABLE PLAN OF ITS
OWN, NOTWITHSTANDING THE PATIENT EFFORTS OF THE DISTRICT JUDGE WHO, ON
AT LEAST THREE OCCASIONS, URGED THE BOARD TO SUBMIT PLANS.  /8/  AS THE
STATEMENT OF FACTS SHOWS, THESE FINDINGS ARE ABUNDANTLY SUPPORTED BY
THE RECORD.  IT WAS BECAUSE OF THIS TOTAL FAILURE OF THE SCHOOL BOARD
THAT THE DISTRICT COURT WAS OBLIGED TO TURN TO OTHER QUALIFIED SOURCES,
AND DR. FINGER WAS DESIGNATED TO ASSIST THE DISTRICT COURT TO DO WHAT
THE BOARD SHOULD HAVE DONE. 

WE SEE THEREFORE THAT THE USE MADE OF MATHEMATICAL RATIOS WAS NO
MORE THAN A STARTING POINT IN THE PROCESS OF SHAPING A REMEDY, RATHER
THAN AN INFLEXIBLE REQUIREMENT.  FROM THAT STARTING POINT THE DISTRICT
COURT PROCEEDED TO FRAME A DECREE THAT WAS WITHIN ITS DISCRETIONARY
POWERS, AS AN EQUITABLE REMEDY FOR THE PARTICULAR CIRCUMSTANCES.  /9/
AS WE SAID IN GREEN, A SCHOOL AUTHORITY'S REMEDIAL PLAN OR A DISTRICT
COURT'S REMEDIAL DECREE IS TO BE JUDGED BY ITS EFFECTIVENESS. 
AWARENESS OF THE RACIAL COMPOSITION OF THE WHOLE SCHOOL SYSTEM IS
LIKELY TO BE A USEFUL STARTING POINT IN SHAPING A REMEDY TO CORRECT
PAST CONSTITUTIONAL VIOLATIONS.  IN SUM, THE VERY LIMITED USE MADE OF
MATHEMATICAL RATIOS WAS WITHIN THE EQUITABLE REMEDIAL DISCRETION OF THE
DISTRICT COURT. 

(2) ONE-RACE SCHOOLS. 

THE RECORD IN THIS CASE REVEALS THE FAMILIAR PHENOMENON THAT IN
METROPOLITAN AREAS MINORITY GROUPS ARE OFTEN FOUND CONCENTRATED IN ONE
PART OF THE CITY.  IN SOME CIRCUMSTANCES CERTAIN SCHOOLS MAY REMAIN ALL
OR LARGELY OF ONE RACE UNTIL NEW SCHOOLS CAN BE PROVIDED OR
NEIGHBORHOOD PATTERNS CHANGE.  SCHOOLS ALL OR PREDOMINATELY OF ONE RACE
IN A DISTRICT OF MIXED POPULATION WILL REQUIRE CLOSE SCRUTINY TO
DETERMINE THAT SCHOOL ASSIGNMENTS ARE NOT PART OF STATE-ENFORCED
SEGREGATION. 

IN LIGHT OF THE ABOVE, IT SHOULD BE CLEAR THAT THE EXISTENCE OF SOME
SMALL NUMBER OF ONE-RACE, OR VIRTUALLY ONE-RACE SCHOOLS WITHIN A
DISTRICT IS NOT IN AND OF ITSELF THE MARK OF A SYSTEM THAT STILL
PRACTICES SEGREGATION BY LAW.  THE DISTRICT JUDGE OR SCHOOL AUTHORITIES
SHOULD MAKE EVERY EFFORT TO ACHIEVE THE GREATEST POSSIBLE DEGREE OF
ACTUAL DESEGREGATION AND WILL THUS NECESSARILY BE CONCERNED WITH THE
ELIMINATION OF ONE-RACE SCHOOLS.  NO PER SE RULE CAN ADEQUATELY EMBRACE
ALL THE DIFFICULTIES OF RECONCILING THE COMPETING INTEREST INVOLVED;
BUT IN A SYSTEM WITH A HISTORY OF SEGREGATION THE NEED FOR REMEDIAL
CRITERIA OF SUFFICIENT SPECIFICITY TO ASSURE A SCHOOL AUTHORITY'S
COMPLIANCE WITH ITS CONSTITUTIONAL DUTY WARRANTS A PRESUMPTION AGAINST
SCHOOLS THAT ARE SUBSTANTIALLY DISPROPORTIONATE IN THEIR RACIAL
COMPOSITION.  WHERE THE SCHOOL AUTHORITY'S PROPOSED PLAN FOR CONVERSION
FROM A DUAL TO A UNITARY SYSTEM CONTEMPLATES THE CONTINUED EXISTENCE OF
SOME SCHOOLS THAT ARE ALL OR PREDOMINATELY OF ONE RACE, THEY HAVE THE
BURDEN OF SHOWING THAT SUCH SCHOOL ASSIGNMENTS ARE GENUINELY
NONDISCRIMINATORY.  THE COURT SHOULD SCRUTINIZE SUCH SCHOOLS, AND THE
BURDEN UPON THE SCHOOL AUTHORITIES WILL BE TO SATISFY THE COURT THAT
THEIR RACIAL COMPOSITION IS NOT THE RESULT OF PRESENT OR PAST
DISCRIMINATORY ACTION ON THEIR PART. 

AN OPTIONAL MAJORITY-TO-MINORITY TRANSFER PROVISION HAS LONG BEEN
RECOGNIZED AS A USEFUL PART OF EVERY DESEGREGATION PLAN.  PROVISION FOR
OPTIONAL TRANSFER OF THOSE IN THE MAJORITY RACIAL GROUP OF A PARTICULAR
SCHOOL TO OTHER SCHOOLS WHERE THEY WILL BE IN THE MINORITY IS AN
INDISPENSABLE REMEDY FOR THOSE STUDENTS WILLING TO TRANSFER TO OTHER
SCHOOLS IN ORDER TO LESSEN THE IMPACT ON THEM OF THE STATE-IMPOSED
STIGMA OF SEGREGATION.  IN ORDER TO BE EFFECTIVE, SUCH A TRANSFER
ARRANGEMENT MUST GRANT THE TRANSFERRING STUDENT FREE TRANSPORTATION AND
SPACE MUST BE MADE AVAILABLE IN THE SCHOOL TO WHICH HE DESIRES TO
MOVE.  CF. ELLIS V. BOARD OF PUBLIC INSTRUCTION, 423 F.2D 203, 206 (CA5
1970).  THE COURT ORDERS IN THIS AND THE COMPANION DAVIS CASE NOW
PROVIDE SUCH AN OPTION. 

(3) REMEDIAL ALTERING OF ATTENDANCE ZONES. 

THE MAPS SUBMITTED IN THESE CASES GRAPHICALLY DEMONSTRATE THAT ONE
OF THE PRINCIPAL TOOLS EMPLOYED BY SCHOOL PLANNERS AND BY COURTS TO
BREAK UP THE DUAL SCHOOL SYSTEM HAS BEEN A FRANK-- AND SOMETIMES
DRASTIC-- GERRYMANDERING OF SCHOOL DISTRICTS AND ATTENDANCE ZONES.  AN
ADDITIONAL STEP WAS PAIRING, "CLUSTERING," OR "GROUPING" OF SCHOOLS
WITH ATTENDANCE ASSIGNMENTS MADE DELIBERATELY TO ACCOMPLISH THE
TRANSFER OF NEGRO STUDENTS OUT OF FORMERLY SEGREGATED NEGRO SCHOOLS AND
TRANSFER OF WHITE STUDENTS TO FORMERLY ALL-NEGRO SCHOOLS.  MORE OFTEN
THAN NOT, THESE ZONES ARE NEITHER COMPACT /10/  NOR CONTIGUOUS; INDEED
THEY MAY BE ON OPPOSITE ENDS OF THE CITY.  AS AN INTERIM CORRECTIVE
MEASURE, THIS CANNOT BE SAID TO BE BEYOND THE BROAD REMEDIAL POWERS OF
A COURT. 

ABSENT A CONSTITUTIONAL VIOLATION THERE WOULD BE NO BASIS FOR
JUDICIALLY ORDERING ASSIGNMENT OF STUDENTS ON A RACIAL BASIS.  ALL
THINGS BEING EQUAL, WITH NO HISTORY OF DISCRIMINATION, IT MIGHT WELL BE
DESIRABLE TO ASSIGN PUPILS TO SCHOOLS NEAREST THEIR HOMES.  BUT ALL
THINGS ARE NOT EQUAL IN A SYSTEM THAT HAS BEEN DELIBERATELY CONSTRUCTED
AND MAINTAINED TO ENFORCE RACIAL SEGREGATION.  THE REMEDY FOR SUCH
SEGREGATION MAY BE ADMINISTRATIVELY AWKWARD, INCONVENIENT, AND EVEN
BIZARRE IN SOME SITUATIONS AND MAY IMPOSE BURDENS ON SOME; BUT ALL
AWKWARDNESS AND INCONVENIENCE CANNOT BE AVOIDED IN THE INTERIM PERIOD
WHEN REMEDIAL ADJUSTMENTS ARE BEING MADE TO ELIMINATE THE DUAL SCHOOL
SYSTEMS. 

NO FIXED OR EVEN SUBSTANTIALLY FIXED GUIDELINES CAN BE ESTABLISHED
AS TO HOW FAR A COURT CAN GO, BUT IT MUST BE RECOGNIZED THAT THERE ARE
LIMITS.  THE OBJECTIVE IS TO DISMANTLE THE DUAL SCHOOL SYSTEM. 
"RACIALLY NEUTRAL" ASSIGNMENT PLANS PROPOSED BY SCHOOL AUTHORITIES TO A
DISTRICT COURT MAY BE INADEQUATE; SUCH PLANS MAY FAIL TO COUNTERACT THE
CONTINUING EFFECTS OF PAST SCHOOL SEGREGATION RESULTING FROM
DISCRIMINATORY LOCATION OF SCHOOL SITES OR DISTORTION OF SCHOOL SIZE IN
ORDER TO ACHIEVE OR MAINTAIN AN ARTIFICIAL RACIAL SEPARATION.  WHEN
SCHOOL AUTHORITIES PRESENT A DISTRICT COURT WITH A "LOADED GAME BOARD,"
AFFIRMATIVE ACTION IN THE FORM OF REMEDIAL ALTERING OF ATTENDANCE
ZONES IS PROPER TO ACHIEVE TRULY NONDISCRIMINATORY ASSIGNMENTS.  IN
SHORT, AN ASSIGNMENT PLAN IS NOT ACCEPTABLE SIMPLY BECAUSE IT APPEARS
TO BE NEUTRAL. 

IN THIS AREA, WE MUST OF NECESSITY RELY TO A LARGE EXTENT, AS THIS
COURT HAS FOR MORE THAN 16 YEARS, ON THE INFORMED JUDGMENT OF THE
DISTRICT COURTS IN THE FIRST INSTANCE AND ONE COURTS OF APPEALS. 

WE HOLD THAT THE PAIRING AND GROUPING OF NONCONTIGUOUS SCHOOL ZONES
IS A PERMISSIBLE TOOL AND SUCH ACTION IS TO BE CONSIDERED IN LIGHT OF
THE OBJECTIVES SOUGHT.  JUDICIAL STEPS IN SHAPING SUCH ZONES GOING
BEYOND COMBINATIONS OF CONTIGUOUS AREAS SHOULD BE EXAMINED IN LIGHT OF
WHAT IS SAID IN SUBDIVISIONS (1), (2), AND (3) OF THIS OPINION
CONCERNING THE OBJECTIVES TO BE SOUGHT.  MAPS DO NOT TELL THE WHOLE
STORY SINCE NONCONTIGUOUS SCHOOL ZONES MAY BE MORE ACCESSIBLE TO EACH
OTHER IN TERMS OF THE CRITICAL TRAVEL TIME, BECAUSE OF TRAFFIC PATTERNS
AND GOOD HIGHWAYS, THAN SCHOOLS GEOGRAPHICALLY CLOSER TOGETHER. 
CONDITIONS IN DIFFERENT LOCALITIES WILL VARY SO WIDELY THAT NO RIGID
RULES CAN BE LAID DOWN TO GOVERN ALL SITUATIONS. 

(4) TRANSPORTATION OF STUDENTS. 

THE SCOPE OF PERMISSIBLE TRANSPORTATION OF STUDENTS AS AN IMPLEMENT
OF A REMEDIAL DECREE HAS NEVER BEEN DEFINED BY THIS COURT AND BY THE
VERY NATURE OF THE PROBLEM IT CANNOT BE DEFINED WITH PRECISION.  NO
RIGID GUIDELINES AS TO STUDENT TRANSPORTATION CAN BE GIVEN FOR
APPLICATION TO THE INFINITE VARIETY OF PROBLEMS PRESENTED IN THOUSANDS
OF SITUATIONS.  BUS TRANSPORTATION HAS BEEN AN INTEGRAL PART OF THE
PUBLIC EDUCATION SYSTEM FOR YEARS, AND WAS PERHAPS THE SINGLE MOST
IMPORTANT FACTOR IN THE TRANSITION FROM THE ONE-ROOM SCHOOLHOUSE TO THE
CONSOLIDATED SCHOOL.  EIGHTEEN MILLION OF THE NATION'S PUBLIC SCHOOL
CHILDREN, APPROXIMATELY 39%, WERE TRANSPORTED TO THEIR SCHOOLS BY BUS
IN 1969-1970 IN ALL PARTS OF THE COUNTRY. 

THE IMPORTANCE OF BUS TRANSPORTATION AS A NORMAL AND ACCEPTED TOOL
OF EDUCATIONAL POLICY IS READILY DISCERNABLE IN THIS AND THE COMPANION
CASE, DAVIS, SUPRA.  /11/  THE CHARLOTTE SCHOOL AUTHORITIES DID NOT
PURPORT TO ASSIGN STUDENTS ON THE BASIS OF GEOGRAPHICALLY DRAWN ZONES
UNTIL 1965 AND THEN THEY ALLOWED ALMOST UNLIMITED TRANSFER PRIVILEGES. 
THE DISTRICT COURT'S CONCLUSION THAT ASSIGNMENT OF CHILDREN TO THE
SCHOOL NEAREST THEIR HOME SERVING THEIR GRADE WOULD NOT PRODUCE AN
EFFECTIVE DISMANTLING OF THE DUAL SYSTEM IS SUPPORTED BY THE RECORD. 
THUS THE REMEDIAL TECHNIQUES USED IN THE DISTRICT COURT'S ORDER WERE
WITHIN THAT COURT'S POWER TO PROVIDE EQUITABLE RELIEF; IMPLEMENTATION
OF THE DECREE IS WELL WITHIN THE CAPACITY OF THE SCHOOL AUTHORITY. 

THE DECREE PROVIDED THAT THE BUSES USED TO IMPLEMENT THE PLAN WOULD
OPERATE ON DIRECT ROUTES.  STUDENTS WOULD BE PICKED UP AT SCHOOLS NEAR
THEIR HOMES AND TRANSPORTED TO THE SCHOOLS THEY WERE TO ATTEND.  THE
TRIPS FOR ELEMENTARY SCHOOL PUPILS AVERAGE ABOUT SEVEN MILES AND THE
DISTRICT COURT FOUND THAT THEY WOULD TAKE "NOT OVER 35 MINUTES AT THE
MOST."  /12/  THIS SYSTEM COMPARES FAVORABLY WITH THE TRANSPORTATION
PLAN PREVIOUSLY OPERATED IN CHARLOTTE UNDER WHICH EACH DAY 23,000
STUDENTS ON ALL GRADE LEVELS WERE TRANSPORTED AN AVERAGE OF 15 MILES
ONE WAY FOR AN AVERAGE TRIP REQUIRING OVER AN HOUR.  IN THESE
CIRCUMSTANCES, WE FIND NO BASIS FOR HOLDING THAT THE LOCAL SCHOOL
AUTHORITIES MAY NOT BE REQUIRED TO EMPLOY BUS TRANSPORTATION AS ONE
TOOL OF SCHOOL DESEGREGATION.  DESEGREGATION PLANS CANNOT BE LIMITED TO
THE WALK-IN SCHOOL. 

AN OBJECTION TO TRANSPORTATION OF STUDENTS MAY HAVE VALIDITY WHEN
THE TIME OR DISTANCE OF TRAVEL IS SO GREAT AS TO EITHER RISK THE HEALTH
OF THE CHILDREN OR SIGNIFICANTLY IMPINGE ON THE EDUCATIONAL PROCESS. 
DISTRICT COURTS MUST WEIGH THE SOUNDNESS OF ANY TRANSPORTATION PLAN IN
LIGHT OF WHAT IS SAID IN SUBDIVISIONS (1), (2), AND (3) ABOVE.  IT
HARDLY NEEDS STATING THAT THE LIMITS ON TIME OF TRAVEL WILL VARY WITH
MANY FACTORS, BUT PROBABLY WITH NONE MORE THAN THE AGE OF THE
STUDENTS.  THE RECONCILIATION OF COMPETING VALUES IN A DESEGREGATION
CASE IS, OF COURSE, A DIFFICULT TASK WITH MANY SENSITIVE FACETS BUT
FUNDAMENTALLY NO MORE SO THAN REMEDIAL MEASURES COURTS OF EQUITY HAVE
TRADITIONALLY EMPLOYED. 

        VI 

THE COURT OF APPEALS, SEARCHING FOR A TERM TO DEFINE THE EQUITABLE
REMEDIAL POWER OF THE DISTRICT COURTS, USED THE TERM "REASONABLENESS." 
IN GREEN, SUPRA, THIS COURT USED THE TERM "FEASIBLE" AND BY
IMPLICATION, "WORKABLE," "EFFECTIVE," AND "REALISTIC" IN THE MANDATE TO
DEVELOP "A PLAN THAT PROMISES REALISTICALLY TO WORK, AND . . . TO WORK
NOW."  ON THE FACTS OF THIS CASE, WE ARE UNABLE TO CONCLUDE THAT THE
ORDER OF THE DISTRICT COURT IS NOT REASONABLE, FEASIBLE AND WORKABLE. 
HOWEVER, IN SEEKING TO DEFINE THE SCOPE OF REMEDIAL POWER OR THE LIMITS
ON REMEDIAL POWER OF COURTS IN AN AREA AS SENSITIVE AS WE DEAL WITH
HERE, WORDS ARE POOR INSTRUMENTS TO CONVEY THE SENSE OF BASIC FAIRNESS
INHERENT IN EQUITY.  SUBSTANCE, NOT SEMANTICS, MUST GOVERN, AND WE HAVE
SOUGHT TO SUGGEST THE NATURE OF LIMITATIONS WITHOUT FRUSTRATING THE
APPROPRIATE SCOPE OF EQUITY. 

AT SOME POINT, THESE SCHOOL AUTHORITIES AND OTHERS LIKE THEM SHOULD
HAVE ACHIEVED FULL COMPLIANCE WITH THIS COURT'S DECISION IN BROWN I.
THE SYSTEMS WOULD THEN BE "UNITARY" IN THE SENSE REQUIRED BY OUR
DECISIONS IN GREEN AND ALEXANDER. 

IT DOES NOT FOLLOW THAT THE COMMUNITIES SERVED BY SUCH SYSTEMS WILL
REMAIN DEMOGRAPHICALLY STABLE, FOR IN A GROWING, MOBILE SOCIETY, FEW
WILL DO SO.  NEITHER SCHOOL AUTHORITIES NOR DISTRICT COURTS ARE
CONSTITUTIONALLY REQUIRED TO MAKE YEAR-BY-YEAR ADJUSTMENTS OF THE
RACIAL COMPOSITION OF STUDENT BODIES ONCE THE AFFIRMATIVE DUTY TO
DESEGREGATE HAS BEEN ACCOMPLISHED AND RACIAL DISCRIMINATION THROUGH
OFFICIAL ACTION IS ELIMINATED FROM THE SYSTEM.  THIS DOES NOT MEAN THAT
FEDERAL COURTS ARE WITHOUT POWER TO DEAL WITH FUTURE PROBLEMS; BUT IN
THE ABSENCE OF A SHOWING THAT EITHER THE SCHOOL AUTHORITIES OR SOME
OTHER AGENCY OF THE STATE HAS DELIBERATELY ATTEMPTED TO FIX OR ALTER
DEMOGRAPHIC PATTERNS TO AFFECT THE RACIAL COMPOSITION OF THE SCHOOLS,
FURTHER INTERVENTION BY A DISTRICT COURT SHOULD NOT BE NECESSARY. 

FOR THE REASONS HEREIN SET FORTH, THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED AS TO THOSE PARTS IN WHICH IT AFFIRMED THE JUDGMENT
OF THE DISTRICT COURT.  THE ORDER OF THE DISTRICT COURT, DATED AUGUST
7, 1970, IS ALSO AFFIRMED. 

IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 349, CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
ET AL V. SWANN ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  MCDANIEL V. BARRESI, NO. 420, POST, P. 39; DAVIS V. BOARD OF
SCHOOL COMMISSIONERS OF MOBILE COUNTY, NO. 436, POST, P. 33; MOORE V.
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, NO. 444, POST, P. 47; NORTH
CAROLINA STATE BOARD OF EDUCATION V. SWANN, NO. 498, POST, P. 43.  FOR
PURPOSES OF THIS OPINION THE CROSS-PETITIONS IN NOS. 281 AND 349 ARE
TREATED AS A SINGLE CASE AND WILL BE REFERRED TO AS "THIS CASE." 

/2/  RANEY V. BOARD OF EDUCATION, 391 U.S. 443 (1968), AND MONROE V.
BOARD OF COMMISSIONERS, 391 U.S. 450 (1968). 

/3/  A "SATELLITE ZONE" IS AN AREA WHICH IS NOT CONTIGUOUS WITH THE
MAIN ATTENDANCE ZONE SURROUNDING THE SCHOOL. 

/4/  IN ITS OPINION AND ORDER OF DECEMBER 1, 1969, LATER
INCORPORATED IN THE ORDER APPOINTING DR. FINGER AS CONSULTANT, THE
DISTRICT COURT STATED: 

"FIXED RATIOS OF PUPILS IN PARTICULAR SCHOOLS WILL NOT BE SET.  IF
THE BOARD IN ONE OF ITS THREE TRIES HAD PRESENTED A PLAN FOR
DESEGREGATION, THE COURT WOULD HAVE SOUGHT WAYS TO APPROVE VARIATIONS
IN PUPIL RATIOS.  IN DEFAULT OF ANY SUCH PLAN FROM THE SCHOOL BOARD,
THE COURT WILL START WITH THE THOUGHT . . . THAT EFFORTS SHOULD BE MADE
TO REACH A 71-29 RATIO IN THE VARIOUS SCHOOLS SO THAT THERE WILL BE
BASIS FOR CONTENDING THAT ONE SCHOOL IS RACIALLY DIFFERENT FROM THE
OTHERS, BUT TO UNDERSTAND THAT VARIATIONS FROM THAT NORM MAY BE
UNAVOIDABLE."  306 F.SUPP.  1299, 1312. 

/5/  THE NECESSITY FOR THIS IS SUGGESTED BY THE SITUATION IN THE
FIFTH CIRCUIT WHERE 166 APPEALS IN SCHOOL DESEGREGATION CASES WERE
HEARD BETWEEN DECEMBER 2, 1969, AND SEPTEMBER 24, 1970. 

/6/  ELEMENTARY PUBLIC SCHOOL POPULATION (GRADES 1-6) GREW FROM
17,447,000 IN 1954 TO 23,103,000 IN 1969; SECONDARY SCHOOL POPULATION
(BEYOND GRADE 6) GREW FROM 11,183,000 IN 1954 TO 20,775,000 IN 1969. 
DIGEST OF EDUCATIONAL STATISTICS, TABLE 3, OFFICE OF EDUCATION PUB.
10024-64; DIGEST OF EDUCATIONAL STATISTICS, TABLE 28, OFFICE OF
EDUCATION PUB. 10024-70. 

/7/  IT MUST BE REMEMBERED THAT THE DISTRICT COURT ENTERED NEARLY A
SCORE OF ORDERS AND NUMEROUS SETS OF FINDINGS, AND FOR THE MOST PART
EACH WAS ACCOMPANIED BY A MEMORANDUM OPINION.  CONSIDERING THE PRESSURE
UNDER WHICH THE COURT WAS OBLIGED TO OPERATE WE WOULD NOT EXPECT THAT
ALL INCONSISTENCIES AND APPARENT INCONSISTENCIES COULD BE AVOIDED.  OUR
REVIEW, OF COURSE, IS ON THE ORDER OF FEBRUARY 5, 1970, AS AMENDED, AND
AUGUST 7, 1970. 

/8/  THE FINAL BOARD PLAN LEFT 10 SCHOOLS 86% TO 100% NEGRO AND YET
CATEGORICALLY REJECTED THE TECHNIQUES OF PAIRING AND CLUSTERING AS PART
OF THE DESEGREGATION EFFORT.  AS DISCUSSED BELOW, THE CHARLOTTE BOARD
WAS UNDER AN OBLIGATION TO EXERCISE EVERY REASONABLE EFFORT TO REMEDY
THE VIOLATION, ONCE IT WAS IDENTIFIED, AND THE SUGGESTED TECHNIQUES ARE
PERMISSIBLE REMEDIAL DEVICES.  ADDITIONALLY, AS NOTED BY THE DISTRICT
COURT AND COURT OF APPEALS, THE BOARD PLAN DID NOT ASSIGN WHITE
STUDENTS TO ANY SCHOOL UNLESS THE STUDENT POPULATION OF THAT SCHOOL WAS
AT LEAST 60% WHITE.  THIS WAS AN ARBITRARY LIMITATION NEGATING
REASONABLE REMEDIAL STEPS. 

/9/  IN ITS AUGUST 3, 1970, MEMORANDUM HOLDING THAT THE DISTRICT
COURT PLAN WAS "REASONABLE" UNDER THE STANDARD LAID DOWN BY THE FOURTH
CIRCUIT ON APPEAL, THE DISTRICT COURT EXPLAINED THE APPROACH TAKEN AS
FOLLOWS: 

"THIS COURT HAS NOT RULED, AND DOES NOT RULE THAT 'RACIAL BALANCE'
IS REQUIRED UNDER THE CONSTITUTION; NOR THAT ALL BLACK SCHOOLS IN ALL
CITIES ARE UNLAWFUL; NOR THAT ALL SCHOOL BOARDS MUST BUS CHILDREN OR
VIOLATE THE CONSTITUTION; NOR THAT THE PARTICULAR ORDER ENTERED IN THIS
CASE WOULD BE CORRECT IN OTHER CIRCUMSTANCES NOT BEFORE THIS COURT." 

/10/  THE RELIANCE OF SCHOOL AUTHORITIES ON THE REFERENCE TO THE
"REVISION OF . . . ATTENDANCE AREAS INTO COMPACT UNITS," BROWN II, AT
300 IS MISPLACED.  THE ENUMERATION IN THAT OPINION OF CONSIDERATIONS TO
BE TAKEN INTO ACCOUNT BY DISTRICT COURTS WAS PATENTLY INTENDED TO BE
SUGGESTIVE RATHER THAN EXHAUSTIVE.  THE DECISION IN BROWN II TO REMAND
THE CASES DECIDED IN BROWN I TO LOCAL COURTS FOR THE FRAMING OF
SPECIFIC DECREES WAS PREMISED ON A RECOGNITION THAT THIS COURT COULD
NOT AT THAT TIME FORESEE THE PARTICULAR MEANS WHICH WOULD BE REQUIRED
TO IMPLEMENT THE CONSTITUTIONAL PRINCIPLES ANNOUNCED.  WE SAID IN
GREEN, SUPRA, AT 439: 

"THE OBLIGATION OF THE DISTRICT COURTS, AS IT ALWAYS HAS BEEN, IS TO
ASSESS THE EFFECTIVENESS OF A PROPOSED PLAN IN ACHIEVING
DESEGREGATION.  THERE IS NO UNIVERSAL ANSWER TO COMPLEX PROBLEMS OF
DESEGREGATION; THERE IS OBVIOUSLY NO ONE PLAN THAT WILL DO THE JOB IN
EVERY CASE.  THE MATTER MUST BE ASSESSED IN LIGHT OF THE CIRCUMSTANCES
PRESENT AND THE OPTIONS AVAILABLE IN EACH INSTANCE." 

/11/  DURING 1967-1968, FOR EXAMPLE, THE MOBILE BOARD USED 207 BUSES
TO TRANSPORT 22,094 STUDENTS DAILY FOR AN AVERAGE ROUND TRIP OF 31
MILES.  DURING 1966-1967, 7,116 STUDENTS IN THE METROPOLITAN AREA WERE
BUSED DAILY.  IN CHARLOTTE-MECKLENBURG, THE SYSTEM AS A WHOLE, WITHOUT
REGARD TO DESEGREGATION PLANS, PLANNED TO BUS APPROXIMATELY 23,000
STUDENTS THIS YEAR, FOR AN AVERAGE DAILY ROUND TRIP OF 15 MILES.  MORE
ELEMENTARY SCHOOL CHILDREN THAN HIGH SCHOOL CHILDREN WERE BUSED, AND
FOUR- AND FIVE-YEAR-OLDS TRAVEL THE LONGEST ROUTES IN THE SYSTEM. 

/12/  THE DISTRICT COURT FOUND THAT THE SCHOOL SYSTEM WOULD HAVE TO
EMPLOY 138 MORE BUSES THAN IT HAD PREVIOUSLY OPERATED.  BUT 105 OF
THOSE BUSES WERE ALREADY AVAILABLE AND THE OTHERS COULD EASILY BE
OBTAINED.  ADDITIONALLY, IT SHOULD BE NOTED THAT NORTH CAROLINA
REQUIRES PROVISION OF TRANSPORTATION FOR ALL STUDENTS WHO ARE ASSIGNED
TO SCHOOLS MORE THAN ONE AND ONE-HALF MILES FROM THEIR HOMES.  N.C.
GEN. STAT. SEC. 115-186(B) (1966). 

JULIUS LEVONNE CHAMBERS AND JAMES M. NABRIT III ARGUED THE CAUSE FOR
PETITIONERS IN NO. 281 AND RESPONDENTS IN NO. 349.  WITH THEM ON THE
BRIEFS WERE JACK GREENBERG, NORMAN J. CHACHKIN, CO. O. PEARSON, AND
ANTHONY G. AMSTERDAM. 

WILLIAM J. WAGONNER AND BENJAMIN S. HORACK ARGUED THE CAUSE AND
FILED BRIEFS FOR RESPONDENTS IN NO. 281 AND PETITIONERS IN NO. 349. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE IN BOTH CASES.  WITH HIM ON THE BRIEF WAS ASSISTANT
ATTORNEY GENERAL LEONARD. 

BRIEFS OF AMICI CURIAE IN NO. 281 WERE FILED BY EARL FAIRCLOTH,
ATTORNEY GENERAL, ROBERT J. KELLY, DEPUTY ATTORNEY GENERAL, RONALD W.
SABO, ASSISTANT ATTORNEY GENERAL, AND RIVERS BUFORD FOR THE STATE OF
FLORIDA; BY ANDREW P. MILLER, ATTORNEY GENERAL, WILLIAM G. BROADDUS AND
THEODORE J. MARKOW, ASSISTANT ATTORNEYS GENERAL, LEWIS F. POWELL, JR.,
JOHN W. RIELY, AND GUY K. TOWER FOR THE COMMONWEALTH OF VIRINIA; BY
CLAUDE R. KIRK, JR., PRO SE, AND GERALD MAGER FOR CLAUDE R. KIRK, JR.,
GOVERNOR OF FLORIDA; BY W. F. WOMBLE FOR THE WINSTON-SALEM/FORSYTH
COUNTY BOARD OF EDUCATION; BY RAYMOND B. WITT, JR., AND EUGENE N.
COLLINS FOR THE CHATTANOOGA BOARD OF EDUCATION; BY KENNETH W. CLEARY
FOR THE SCHOOL BOARD OF OF MANATEE COUNTY, FLORIDA; BY W. CROSBY FEW
AND JOHN M. ALLISON FOR THE SCHOOL BOARD OF HILLSBOROUGH COUNTY,
FLORIDA; BY SAM J. ERVIN, JR., CHARLES R. JONAS, AND ERNEST F. HOLLINGS
FOR THE CLASSROOM TEACHERS ASSOCIATION OF THE CHARLOTTE-MECKLENBURG
SCHOOL SYSTEM, INC.; BY MARK WELLS WHITE, JR., FOR MRS. H. W. CULLEN ET
AL., MEMBERS OF THE BOARD OF EDUCATION OF THE HOUSTON INDEPENDENT
SCHOOL DISTRICT; BY JACK PETREE FOR THE BOARD OF EDUCATION OF MEMPHIS
CITY SCHOOLS; BY SHERWOOD W. WISE FOR THE JACKSON CHAMBER OF COMMERCE,
INC., ET AL.; BY STEPHEN J. POLLAK, BENJAMINE W. BOLEY, AND DAVID RUBIN
FOR THE NATIONAL EDUCATION ASSOCIATION; BY WILLIAM L. TAYLOR, RICHARD
B. SOBOL, AND JOSEPH L. RAUH, JR., FOR THE UNITED NEGRO COLLEGE FUND,
INC., ET AL.; BY OWEN H. PAGE FOR CONCERNED CITIZENS ASSOCIATION, INC.;
BY CHARLES S. CONLEY, FLOYD B. MCKISSICK, AND CHARLES S. SCOTT FOR THE
CONGRESS OF RACIAL EQUALITY; BY THE TENNESSEE FEDERATION FOR
CONSTITUTIONAL GOVERNMENT ET AL.; BY WILLIAM C. CRAMER, PRO SE, AND
RICHARD B. PEET, JOINED BY ALBERT W. WATSON ET AL., FOR WILLIAM C.
CRAMER; BY CHARLES E. BENNETT, PRO SE, JAMES C. RINAMAN, JR., AND
YARDLEY D. BUCKMAN FOR CHARLES E. BENNETT; BY CALVIN H. CHILDRESS AND
M. T. BOHANNON, JR., FOR DAVID E. ALLGOOD ET AL.; BY WILLIAM B. SPONG,
JR., AND BY NEWTON COLLIER ESTES. 
..END :



DAVIS V. SCHOOL COMM'RS OF MOBILE COUNTY, 402 U.S. 33 


       DAVIS ET AL. V. BOARD OF SCHOOL COMMISSIONERS OF MOBILE

           COUNTY ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 436.  ARGUED OCTOBER 13-14, 1970-- DECIDED APRIL 20,

           1971 


EAST OF THE MAJOR HIGHWAY THAT DIVIDES THE METROPOLITAN AREA OF
MOBILE, ALA., LIVE 94% OF THE AREA'S NEGRO STUDENTS, AND THE SCHOOLS
THERE ARE 65% NEGRO AND 35% WHITE.  WEST OF THE HIGHWAY THE SCHOOLS ARE
12% NEGRO AND 88% WHITE.  THE COURT OF APPEALS APPROVED A DESEGREGATION
PLAN WHICH, LIKE THE DISTRICT COURT'S PLAN, INSOFAR AS THOSE AREAS WERE
CONCERNED, TREATED THE WESTERN SECTION AS ISOLATED FROM THE EASTERN,
WITH UNIFIED GEOGRAPHIC ZONES AND PROVIDING NO TRANSPORTATION OF
STUDENTS FOR DESEGREGATION PURPOSES.  THOUGH SOME REDUCTION IN THE
NUMBER OF ALL-NEGRO SCHOOLS WAS ACHIEVED FOR THE 1970-1971 SCHOOL YEAR,
NINE ELEMENTARY SCHOOLS IN THE EASTERN SECTION (ATTENDED BY 64% OF ALL
NEGRO ELEMENTARY SCHOOL PUPILS IN THE METROPOLITAN AREA) WERE OVER 90%
NEGRO, AND OVER HALF OF THE NEGRO JUNIOR AND SENIOR HIGH SCHOOL
STUDENTS WENT TO ALL-NEGRO OR NEARLY ALL-NEGRO SCHOOLS.  WITH REGARD TO
THE FACULTY AND STAFF RATIO IN EACH OF MOBILE COUNTY'S SCHOOLS, THE
COURT OF APPEALS DIRECTED THE DISTRICT COURT TO REQUIRE THE SCHOOL
BOARD TO ESTABLISH "SUBSTANTIALLY THE SAME" RATIO AS THAT FOR THE WHOLE
DISTRICT.  HELD: 

1.  THE COURT OF APPEALS DECISION DEALING WITH THE FACULTY AND STAFF
RATIO IS AFFIRMED.  SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION,
ANTE, P. 1, AT 19-20.  P. 35. 

2.  THE COURT OF APPEALS DECISION DEALING WITH THE FACULTY AND
METROPOLITAN MOBILE IN ISOLATION FROM THE REST OF THE SCHOOL SYSTEM,
AND IN NOT ADEQUATELY CONSIDERING THE POSSIBLE USE OF ALL AVAILABLE
TECHNIQUES TO ACHIEVE THE MAXIMUM AMOUNT OF PRACTICABLE DESEGREGATION. 
P. 38. 

430 F.2D 883 AND 889, AFFIRMED IN PART AND REVERSED AND REMANDED IN
PART. 

BURGER, C.J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

PETITIONERS IN THIS CASE CHALLENGE AS INADEQUATE A SCHOOL
DESEGREGATION PLAN FOR MOBILE COUNTY, ALABAMA.  THE COUNTY IS LARGE AND
POPULOUS, EMBRACING 1,248 SQUARE MILES AND THE CITY OF MOBILE.  THE
SCHOOL SYSTEM HAD 73,500 PUPILS IN 91 SCHOOLS AT THE BEGINNING OF THE
1969 ACADEMIC YEAR; APPROXIMATELY 58% OF THE PUPILS WERE WHITE AND 42%
NEGRO.  DURING THE 1967-1968 SCHOOL YEAR, THE SYSTEM TRANSPORTED 22,000
PUPILS DAILY IN OVER 200 SCHOOL BUSES, BOTH IN THE RURAL AREAS OF THE
COUNTY AND IN THE OUTLYING AREAS OF METROPOLITAN MOBILE. 

THE PRESENT DESEGREGATION PLAN EVOLVED FROM ONE DEVELOPED BY THE
DISTRICT COURT IN RESPONSE TO THE DECISION OF THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT IN DAVIS V. BOARD OF SCHOOL COMM'RS, 414 F.2D 609
(CA5 1969), THAT AN EARLIER DESEGREGATION PLAN FORMULATED BY THE
DISTRICT COURT ON THE BASIS OF UNIFIED GEOGRAPHIC ZONES WAS
"CONSTITUTIONALLY INSUFFICIENT AND UNACCEPTABLE, AND SUCH ZONES MUST BE
REDRAWN."  THE COURT OF APPEALS HELD THAT THAT EARLIER PLAN HAD
"IGNORED THE UNEQUIVOCAL DIRECTIVE TO MAKE A CONSCIOUS EFFORT IN
LOCATING ATTENDANCE ZONES TO DESEGREGATE AND ELIMINATE PAST
SEGREGATION."  ID., AT 610. 

THE DISTRICT COURT RESPONDED WITH A NEW ZONING PLAN WHICH LEFT
18,623, OR 60%, OF THE SYSTEM'S 30,800 NEGRO CHILDREN IN 19 ALL-NEGRO
OR NEARLY ALL-NEGRO SCHOOLS.  ON APPEAL, THE COURT OF APPEALS REVIEWED
ALL ASPECTS OF DESEGREGATION IN MOBILE COUNTY.  ADDITIONAL INFORMATION
WAS REQUESTED REGARDING EARLIER DESEGREGATION PLANS FOR THE RURAL PARTS
OF THE COUNTY, AND THOSE PLANS WERE APPROVED.  THEY ARE NOT BEFORE US
NOW.  THE COURT OF APPEALS CONCLUDED THAT WITH RESPECT TO FACULTY AND
STAFF DESEGREGATION THE BOARD HAD "ALMOST TOTALLY FAILED TO COMPLY"
WITH EARLIER ORDERS, AND DIRECTED THE DISTRICT COURT TO REQUIRE THE
BOARD TO ESTABLISH A FACULTY AND STAFF RATIO IN EACH SCHOOL
"SUBSTANTIALLY THE SAME" AS THAT FOR THE ENTIRE DISTRICT.  430 F.2D
883, 886.  WE AFFIRM THAT PART OF THE COURT OF APPEALS' OPINION FOR THE
REASONS GIVEN IN SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION,
ANT, P. 1, AT 19-20. 

REGARDING JUNIOR AND SENIOR HIGH SCHOOLS, THE COURT OF APPEALS
REVERSED THE DISTRICT COURT AND DIRECTED IMPLEMENTATION OF A PLAN THAT
WAS INTENDED TO ELIMINATE THE SEVEN ALL-NEGRO SCHOOLS REMAINING UNDER
THE DISTRICT COURT'S SCHEME.  THIS WAS TO BE ACHIEVED THROUGH PAIRING
AND ADJUSTING GRADE STRUCTURES WITHIN METROPOLITAN MOBILE, WITHOUT BUS
TRANSPORTATION OR SPLIT ZONING.  THE COURT OF APPEALS THEN TURNED TO
THE DIFFICULT PROBLEM OF DESEGREGATING THE ELEMENTARY SCHOOLS OF
METROPOLITAN MOBILE.  THE METROPOLITAN AREA IS DIVIDED BY A MAJOR NORTH
SOUTH HIGHWAY.  ABOUT 94% OF THE NEGRO STUDENTS IN THE METROPOLITAN
AREA LIVE ON THE EAST SIDE OF THE HIGHWAY BETWEEN IT AND THE MOBILE
RIVER.  THE SCHOOLS ON THAT SIDE OF THE HIGHWAY ARE 65% NEGRO AND 35%
WHITE.  ON THE WEST SIDE OF THE HIGHWAY, HOWEVER, THE SCHOOLS ARE 12%
NEGRO AND 88% WHITE.  UNDER THE DISTRICT COURT'S ELEMENTARY SCHOOL PLAN
FOR THE METROPOLITAN AREA, THE EASTERN AND WESTERN SECTIONS WERE
TREATED AS DISTINCT, WITHOUT EITHER INTERLOCKING ZONES OR
TRANSPORTATION ACROSS THE HIGHWAY.  NOT SURPRISINGLY, IT WAS EASY TO
DESEGREGATE THE WESTERN SECTION, BUT IN THE EAST THE DISTRICT COURT
LEFT 12 ALL-NEGRO OR NEARLY ALL-NEGRO ELEMENTARY SCHOOLS, SERVING OVER
90% OF ALL THE NEGRO ELEMENTARY STUDENTS IN THE METROPOLITAN AREA. 

THE COURT OF APPEALS REJECTED THIS SOLUTION IN FAVOR OF A MODIFIED
VERSION OF A PLAN SUBMITTED BY THE DEPARTMENT OF JUSTICE.  AS FURTHER
MODIFIED AFTER A SECOND APPEAL, THIS PLAN REDUCED THE NUMBER OF ALL
NEGRO OR NEARLY ALL-NEGRO ELEMENTARY SCHOOLS FROM 12 TO SIX SCHOOLS,
PROJECTED TO SERVE 5,310 STUDENTS, OR ABOUT 50% OF THE NEGRO ELEMENTARY
STUDENTS IN THE METROPOLITAN AREA.  LIKE THE DISTRICT COURT'S PLAN, THE
COURT OF APPEALS' PLAN WAS BASED ON TREATING THE WESTERN SECTION IN
ISOLATION FROM THE EASTERN.  THERE WERE UNIFIED GEOGRAPHIC ZONES, AND
NO TRANSPORTATION OF STUDENTS FOR PURPOSES OF DESEGREGATION.  THE
REDUCTION IN THE NUMBER OF ALL-NEGRO SCHOOLS WAS ACHIEVED THROUGH
PAIRING, REZONING, AND ADJUSTING GRADE STRUCTURES WITHIN THE EASTERN
SECION.  WITH YET FURTHER MODIFICATIONS NOT MATERIAL HERE, THIS PLAN
WENT INTO EFFECT AT THE BEGINNING OF THE 1970-1971 SCHOOL YEAR. 

THE ENROLLMENT FIGURES FOR THE 1970-1971 SCHOOL YEAR SHOW THAT THE
PROJECTIONS ON WHICH THE COURT OF APPEALS BASED ITS PLAN FOR
METROPOLITAN MOBILE WERE INACCURATE.  UNDER THE COURT OF APPEALS' PLAN
AS ACTUALLY IMPLEMENTED, NINE ELEMENTARY SCHOOLS IN THE EASTERN SECTION
OF METROPOLITAN MOBILE WERE OVER 90% NEGRO AS OF SEPTEMBER 21, 1970
(INSTEAD OF SIX AS PROJECTED), AND THEY HOUSED 7,651 STUDENTS, OR 64%
OF ALL THE NEGRO ELEMENTARY SCHOOL PUPILES IN THE METROPOLITAN AREA. 
MOREOVER, THE ENROLLMENT FIGURES INDICATE THAT 6,746 NEGRO JUNIOR AND
SENIOR HIGH SCHOOL STUDENTS IN METROPOLITAN MOBILE, OR OVER HALF, WERE
THEN ATTENDING ALL-NEGRO OR NEARLY ALL-NEGRO SCHOOLS, RATHER THAN NONE
AS PROJECTED BY THE COURT OF APPEALS.  THESE FIGURES ARE DERIVED FROM A
REPORT OF THE SCHOOL BOARD TO THE DISTRICT COURT; THEY WERE BROUGHT TO
OUR ATTENTION IN A SUPPLEMENTAL BRIEF FOR PETITIONERS FILED ON OCTOBER
10, 1970, AND HAVE NOT BEEN CHALLENGED BY RESPONDENTS. 

AS WE HAVE HELD, "NEIGHBORHOOD SCHOOL ZONING," WHETHER BASED
STRICTLY ON HOME-TO-SCHOOL DISTANCE OR ON "UNIFIED GEOGRAPHIC ZONES,"
IS NOT THE ONLY CONSTITUTIONALLY PERMISSIBLE REMEDY; NOR IS IT PER SE
ADEQUATE TO MEET THE REMEDIAL RESPONSIBILITIES OF LOCAL BOARDS.  HAVING
ONCE FOUND A VIOLATION, THE DISTRICT JUDGE OR SCHOOL AUTHORITIES SHOULD
MAKE EVERY EFFORT TO ACHIEVE THE GREATEST POSSIBLE DEGREE OF ACTUAL
DESEGREGATION, TAKING INTO ACCOUNT THE PRACTICALITIES OF THE
SITUATION.  A DISTRICT COURT MAY AND SHOULD CONSIDER THE USE OF ALL
AVAILABLE TECHNIQUES INCLUDING RESTRUCTURING OF ATTENDANCE ZONES AND
BOTH CONTIGUOUS AND NONCONTIGUOUS ATTENDANCE ZONES.  SEE SWANN, SUPRA,
AT 22-31.  THE MEASURE OF ANY DESEGREGATION PLAN IS ITS EFFECTIVENESS. 

ON THE RECORD BEFORE US, IT IS CLEAR THAT THE COURT OF APPEALS FELT
CONSTRAINED TO TREAT THE EASTERN PART OF METROPOLITAN MOBILE IN
ISOLATION FROM THE REST OF THE SCHOOL SYSTEM, AND THAT INADEQUATE
CONSIDERATION WAS GIVEN TO THE POSSIBLE USE OF BUS TRANSPORTATION AND
SPLIT ZONING.  FOR THESE REASONS, WE REVERSE THE JUDGMENT OF THE COURT
OF APPEALS AS TO THE PARTS DEALING WITH STUDENT ASSIGNMENT, AND REMAND
THE CASE FOR THE DEVELOPMENT OF A DECREE "THAT PROMISES REALISTICALLY
TO WORK, AND PROMISES REALISTICALLY TO WORK NOW."  GREEN V. COUNTY
SCHOOL BOARD, 391 U.S. 430, 439 (1968). 

IT IS SO ORDERED. 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONS.  WITH HIM ON THE
BRIEFS WERE JAMES M. NABRIT III, MICHAEL DAVIDSON, NORMAN J. CHACHKIN,
AND ANTHONY G. AMSTERDAM. 

ABRAM L. PHILIPS, JR., ARGUED THE CAUSE FOR RESPONDENTS BOARD OF
SCHOOL COMMISSIONERS OF MOBILE COUNTY ET AL. WITH HIM ON THE BRIEF WERE
GEORGE F. WOOD, JOHN J. SPARKMAN, JAMES B. ALLEN, AND JACK EDWARDS. 
SAMUEL L. STOCKMAN ARGUED THE CAUSE FOR RESPONDENTS MOBILE COUNTY
COUNCIL PARENT-TEACHER ASSOCIATIONS ET AL. WITH HIM ON THE BRIEF WERE
W. A. KIMBROUGH, JR., AND JOHN W. ADAMS, JR. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE.  WITH HIM ON THE BRIEF WAS ASISTANT ATTORNEY GENERAL
LEONARD. 

BRIEFS OF AMICI CURIAE WERE FILED BY ALBERT P. BREWER, GOVERNOR,
MACDONALD GALLION, ATTORNEY GENERAL, AND JOSEPH D. PHELPS, SPECIAL
ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF ALABAMA; BY A. F. SUMMER,
ATTORNEY GENERAL, AND SEMMES LUCKETT, SPECIAL ASSISTANT ATTORNEY
GENERAL, FOR THE STATE OF MISSISSIPPI; BY ROBERT V. LIGHT AND HERSCHEL
H. FRIDAY FOR THE LITTLE ROCK SCHOOL DISTRICT ET AL., AND BY WILLIAM L.
TAYLOR, RICHARD B. SOBOL, AND JOSEPH L. RAUH, JR., FOR THE UNITED NEGRO
COLLEGE FUND, INC., ET AL.
..END :
























MCDANIEL V. BARRESI, 402 U.S. 39 


       MCDANIEL, SUPERINTENDENT OF SCHOOLS, ET AL. V. BARRESI ET

           AL.

        CERTIORARI TO THE SUPREME COURT OF GEORGIA

        NO. 420.  ARGUED OCTOBER 13, 1970-- DECIDED APRIL 20, 1971 


THE BOARD OF EDUCATION OF CLARKE COUNTY, GA. (WITH A TWO-TO-ONE WHITE
NEGRO ELEMENTARY SCHOOL SYSTEM RATIO), DEVISED A STUDENT ASSIGNMENT
PLAN FOR DESEGREGATING ELEMENTARY SCHOOLS WHICH ESTABLISHES GEOGRAPHIC
ZONES DRAWN TO PROMOTE DESEGREGATION AND ALSO PROVIDES THAT PUPILS IN
HEAVILY CONCENTRATED NEGRO "POCKETS" WALK OR GO BY BUS TO SCHOOLS IN
OTHER ATTENDANCE ZONES.  THE RESULTING NEGRO ELEMENTARY ENROLLMENT
RANGES FROM 20% TO 40% IN ALL BUT TWO SCHOOLS, WHERE IT IS 50%.
RESPONDENT PARENTS SUED TO ENJOIN THE PLAN'S OPERATION.  THE STATE
TRIAL COURT DENIED AN INJUNCTION.  THE GEORGIA SUPREME COURT REVERSED,
HOLDING THAT THE PLAN VIOLATED (1) EQUAL PROTECTION BECAUSE IT
"(TREATED) STUDENTS DIFFERENTLY BECAUSE OF THEIR RACE," AND (2) THE
CIVIL RIGHTS ACT OF 1964, BECAUSE TITLE IV PROHIBITS A SCHOOL BOARD
FROM REQUIRING BUSING TO ACHIEVE A RACIAL BALANCE.  HELD: 

1.  IN COMPLIANCE WITH ITS DUTY TO CONVERT TO A UNITARY SYSTEM, THE
SCHOOL BOARD PROPERLY TOOK RACE INTO ACCOUNT IN FIXING THE ATTENDANCE
LINES.  P. 41. 

2.  TITLE IV, A DIRECTION TO FEDERAL OFFICIALS, DOES NOT RESTRICT
STATE OFFICIALS IN ASSIGNING STUDENTS WITHIN THEIR SYSTEMS.  PP. 41
42. 

226 GA. 456, 175 S.E.2D 649, REVERSED. 

BURGER, C.J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO REVIEW A STATE COURT ORDER
ENJOINING THE OPERATION OF A SCHOOL DESEGREGATION PLAN.  THE ACTION WAS
BROUGHT IN THE SUPERIOR COURT OF CLARKE COUNTY, GEORGIA, BY PARENTS OF
CHILDREN ATTENDING PUBLIC ELEMENTARY SCHOOLS IN THAT COUNTY.  NAMED AS
DEFENDANTS WERE THE SUPERINTENDENT OF EDUCATION AND MEMBERS OF THE
CLARKE COUNTY BOARD OF EDUCATION.  THE TRIAL COURT DENIED RESPONDENTS'
REQUEST FOR AN INJUNCTION, BUT ON APPEAL THE SUPREME COURT OF GEORGIA
REVERSED, 226 GA. 456, 175 S.E.2D 649 (1970).  THIS COURT THEN GRANTED
CERTIORARI, 400 U.S. 804 (1970). 

BEGINNING IN 1963, THE CLARKE COUNTY BOARD OF EDUCATION BEGAN A
VOLUNTARY PROGRAM TO DESEGREGATE ITS PUBLIC SCHOOLS.  THE STUDENT
ASSIGNMENT PLAN PRESENTLY AT ISSUE, INVOLVING ONLY ELEMENTARY SCHOOLS,
HAS BEEN IN EFFECT SINCE THE START OF THE 1969 ACADEMIC YEAR.  THE
PLAN, ADOPTED BY THE BOARD OF EDUCATION AND APPROVED BY THE DEPARTMENT
OF HEALTH, EDUCATION, AND WELFARE, /1/  RELIES PRIMARILY UPON
GEOGRAPHIC ATTENDANCE ZONES DRAWN TO ACHIEVE GREATER RACIAL BALANCE. 
ADDITIONALLY, THE PUPILS IN FIVE HEAVILY NEGRO "POCKETS"  EITHER WALK
OR ARE TRANSPORTED BY BUS TO SCHOOLS LOCATED IN OTHER ATTENDANT ZONES. 
/2/  AS A CONSEQUENCE THE NEGRO ENROLLMENT OF EACH ELEMENTARY SCHOOL IN
THE SYSTEM VARIES GENERALLY BETWEEN 20% AND 40%, ALTHOUGH TWO SCHOOLS
HAVE A 50% NEGRO ENROLLMENT.  THE WHITE-NEGRO RATIO OF ELEMENTARY
PUPILS IN THE SYSTEM IS APPROXIMATELY TWO TO ONE. 

RESPONDENTS CONTEND IN THIS ACTION THAT THE BOARD'S DESEGREGATION
PLAN VIOLATES THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION AND
TITLE IV OF THE CIVIL RIGHTS ACT OF 1964.  THE SUPREME COURT OF GEORGIA
UPHELD BOTH CONTENTIONS, CONCLUDING FIRST THAT THE PLAN VIOLATED THE
EQUAL PROTECTION CLAUSE "BY TREATING STUDENTS DIFFERENTLY BECAUSE OF
THEIR RACE."  THE COURT CONCLUDED ALSO THAT TITLE IV PROHIBITED THE
BOARD FROM "REQUIRING THE TRANSPORTATION OF PUPILS OR STUDENTS FROM ONE
SCHOOL TO ANOTHER . . . IN ORDER TO ACHIEVE SUCH RACIAL BALANCE . . .
."  WE REJECT THESE CONTENTIONS. 

THE CLARKE COUNTY BOARD OF EDUCATION, AS PART OF ITS AFFIRMATIVE
DUTY TO DISESTABLISH THE DUAL SCHOOL SYSTEM, PROPERLY TOOK INTO ACCOUNT
THE RACE OF ITS ELEMENTARY SCHOOL CHILDREN IN DRAWING ATTENDANCE
LINES.  TO HAVE DONE OTHERWISE WOULD HAVE SEVERELY HAMPERED THE BOARD'S
ABILITY TO DEAL EFFECTIVELY WITH THE TASK AT HAND.  SCHOOL BOARDS THAT
OPERATED DUAL SCHOOL SYSTEMS ARE "CLEARLY CHARGED WITH THE AFFIRMATIVE
DUTY TO TAKE WHATEVER STEPS MIGHT BE NECESSARY TO CONVERT TO A UNITARY
SYSTEM IN WHICH RACIAL DISCRIMINATION WOULD BE ELIMINATED ROOT AND
BRANCH."  GREEN V. COUNTY SCHOOL BOARD, 391 U.S. 430, 437-438 (1968). 
IN THIS REMEDIAL PROCESS, STEPS WILL ALMOST INVARIABLY REQUIRE THAT
STUDENTS BE ASSIGNED "DIFFERENTLY BECAUSE OF THEIR RACE."  SEE SWANN V.
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ANT, P. 1; YOUNGBLOOD V.
BOARD OF PUBLIC INSTRUCTION, 430 F.2D 625, 630 (CA5 1970).  ANY OTHER
APPROACH WOULD FREEZE THE STATUS QUO THAT IS THE VERY TARGET OF ALL
DESEGREGATION PROCESSES. 

NOR IS THE BOARD'S PLAN BARRED BY TITLE IV OF THE CIVIL RIGHTS ACT
OF 1964.  THE SECTIONS RELIED UPON BY RESPONDENTS (42 U.S.C. 2000CB),
2000C-6) ARE DIRECTED ONLY AT FEDERAL OFFICIALS AND ARE DESIGNED SIMPLY
TO FORECLOSE ANY INTERPRETATION OF THE ACT AS EXPANDING THE POWERS OF
FEDERAL OFFICIALS TO ENFORCE THE EQUAL PROTECTION CLAUSE.  SWANN,
SUPRA, AT 17.  TITLE IV CLEARLY DOES NOT RESTRICT STATE SCHOOL
AUTHORITIES IN THE EXERCISE OF THEIR DISCRETIONARY POWERS TO ASSIGN
STUDENTS WITHIN THEIR SCHOOL SYSTEMS. 

              REVERSED. 

/1/  IT MAY WELL BE THAT THE BOARD OF EDUCATION ADOPTED THE PRESENT
STUDENT-ASSIGNMENT PLAN BECAUSE OF URGINGS OF FEDERAL OFFICIALS AND
FEAR OF LOSING FEDERAL FINANCIAL ASSISTANCE.  THE STATE TRIAL COURT,
HOWEVER, MADE NO FINDINGS ON THESE MATTERS.  NO FEDERAL OFFICIALS ARE
PARTIES IN THIS CASE. 

/2/  WHERE THE DISTANCE BETWEEN THE STUDENT'S RESIDENCE AND HIS
ASSIGNED SCHOOL IS MORE THAN 1 1/2 MILES, FREE TRANSPORTATION IS
PROVIDED.  THERE IS NO CHALLENGE HERE TO THE FEASIBILITY OF THE
TRANSPORTATION PROVISIONS OF THE PLAN.  THE ANNUAL TRANSPORTATION
EXPENSES OF THE PRESENT PLAN ARE REPORTED IN THE RECORD TO BE $11,070
LESS THAN THE SCHOOL SYSTEM SPENT ON TRANSPORTATION DURING THE 1968
1969 SCHOOL YEAR UNDER DUAL OPERATION. 

EUGENE A. EPTING ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

E. FREEMAN LEVERETT ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 

BRIEFS OF AMICI CURIAE WERE FILED BY SOLICITOR GENERAL GRISWOLD AND
ASSISTANT ATTORNEY GENERAL LEONARD FOR THE UNITED STATES, AND BY ARTHUR
K. BOLTON, ATTORNEY GENERAL, HAROLD N. HILL, JR., EXECUTIVE ASSISTANT
ATTORNEY GENERAL, AND ALFRED L. EVANS, JR., AND J. LEE PERRY, ASSISTANT
ATTORNEYS GENERAL, FOR THE STATE OF GEORGIA. 
..END :














BOARD OF EDUCATION V. SWANN, 402 U.S. 43 


       NORTH CAROLINA STATE BOARD OF EDUCATION ET AL. V. SWANN ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF NORTH CAROLINA

        NO. 498.  ARGUED OCTOBER 13, 1970-- DECIDED APRIL 20, 1971 


NORTH CAROLINA'S ANTI-BUSING LAW, WHICH FLATLY FORBIDS ASSIGNMENT OF
ANY STUDENT ON ACCOUNT OF RACE OR FOR THE PURPOSE OF CREATING A RACIAL
BALANCE OR RATIO IN THE SCHOOLS AND WHICH PROHIBITS BUSING FOR SUCH
PURPOSES, HELD INVALID AS PREVENTING IMPLEMENTATION OF DESEGREGATION
PLANS REQUIRED BY THE FOURTEENTH AMENDMENT.  PP. 45-46. 

312 F.SUPP.  503, AFFIRMED. 

BURGER, C.J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON DIRECT APPEAL PURSUANT TO 28 U.S.C. 1253 FROM
THE JUDGMENT OF A THREE-JUDGE COURT IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA.  THE DISTRICT COURT
DECLARED UNCONSTITUTIONAL A PORTION OF THE NORTH CAROLINA GENERAL
STATUTES KNOWN AS THE ANTI-BUSING LAW, /1/  AND GRANTED AN INJUNCTION
AGAINST ITS ENFORCEMENT.  /2/  THE PROCEEDING BEFORE THE THREE-JUDGE
COURT WAS AN ANCILLARY PROCEEDING CONNECTED WITH THE SCHOOL
DESEGREGATION CASE HERETOFORE DISCUSSED, SWANN V. CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION, ANTE, P. 1.  THE INSTANT APPEAL WAS TAKEN BY THE
NORTH CAROLINA STATE BOARD OF EDUCATION AND FOUR STATE OFFICIALS.  WE
GRANTED THE CHARLOTTE-MECKLENBURG SCHOOL BOARD'S MOTION TO JOIN IN THE
APPEAL, 400 U.S. 804 (1970). 

WHEN THE LITIGATION IN THE SWANN CASE RECOMMENCED IN THE SPRING OF
1969, THE DISTRICT COURT SPECIFICALLY DIRECTED THAT THE SCHOOL BOARD
CONSIDER ALTERING ATTENDANCE AREAS, PAIRING OR CONSOLIDATION OF
SCHOOLS, BUS TRANSPORTATION OF STUDENTS, AND ANY OTHER METHOD WHICH
WOULD EFFECTUATE A RACIALLY UNITARY SYSTEM.  THAT LITIGATION WAS
ACTIVELY PROSECUTED.  THE BOARD SUBMITTED A SERIES OF PROPOSALS, ALL
REJECTED BY THE DISTRICT COURT AS INADEQUATE.  IN THE MIDST OF THIS
LITIGATION OVER THE REMEDY TO IMPLEMENT THE DISTRICT COURT'S ORDER, THE
NORTH CAROLINA LEGISLATURE ENACTED THE ANTI-BUSING BILL, SET FORTH IN
RELEVANT PART IN FOOTNOTE 1. 

FOLLOWING ENACTMENT OF THE ANTI-BUSING STATUTE THE PLAINTIFFS IN THE
SWANN CASE OBTAINED LEAVE TO FILE A SUPPLEMENTAL COMPLAINT WHICH SOUGHT
INJUNCTIVE AND DECLARATORY RELIEF AGAINST THE STATUTE.  THEY SOUGHT TO
CONVENE A THREE-JUDGE COURT, BUT NO ACTION WAS TAKEN ON THE REQUESTS AT
THAT TIME BECAUSE THE SCHOOL BOARD THOUGHT THAT THE ANTI-BUSING LAW DID
NOT INTERFERE WITH THE SCHOOL BOARD'S PROPOSED PLAN TO TRANSPORT ABOUT
4,000 NEGRO CHILDREN TO WHITE SURBURBAN SCHOOLS.  306 F.SUPP 1291 (WDNC
1969).  OTHER PARTIES WERE ADDED AS DEFENDANTS BY ORDER OF THE DISTRICT
COURT DATED FEBRUARY 25.  IN ADDITION, CERTAIN PERSONS WHO HAD BROUGHT
A SUIT IN STATE COURT TO ENJOIN OR IMPEDE THE ORDER OF THE FEDERAL
COURT, THE ATTORNEYS FOR THOSE LITIGANTS, AND STATE JUDGES WHO AT
VARIOUS TIMES ENTERED INJUNCTIONS AGAINST THE SCHOOL AUTHORITIES AND
BLOCKED COMPLIANCE WITH ORDERS OF THE DISTRICT COURT WERE ALSO JOINED;
A THREE-JUDGE COURT WAS THEN CONVENED. 

WE OBSERVED IN SWANN, SUPRA, AT 16, THAT SCHOOL AUTHORITIES HAVE WIDE
DISCRETION IN FORMULATING SCHOOL POLICY, AND THAT AS A MATTER OF
EDUCATIONAL POLICY SCHOOL AUTHORITIES MAY WELL CONCLUDE THAT SOME KIND
OF RACIAL BALANCE IN THE SCHOOLS IS DESIRABLE QUITE APART FROM ANY
CONSTITUTIONAL REQUIREMENTS.  HOWEVER, IF A STATE-IMPOSED LIMITATION ON
A SCHOOL AUTHORITY'S DISCRETION OPERATES TO INHIBIT OR OBSTRUCT THE
OPERATION OF A UNITARY SCHOOL SYSTEM OR IMPEDE THE DISESTABLISHING OF A
DUAL SCHOOL SYSTEM, IT MUST FALL; STATE POLICY MUST GIVE WAY WHEN IT
OPERATES TO HINDER VINDICATION OF FEDERAL CONSTITUTIONAL GUARANTEES. 

THE LEGISLATION BEFORE US FLATLY FORBIDS ASSIGNMENT OF ANY STUDENT
ON ACCOUNT OF RACE OR FOR THE PURPOSE OF CREATING A RACIAL BALANCE OR
RATIO IN THE SCHOOLS.  THE PROHIBITION IS ABSOLUTE, AND IT WOULD
INESCAPABLY OPERATE TO OBSTRUCT THE REMEDIES GRANTED BY THE DISTRICT
COURT IN THE SWANN CASE.  BUT MORE IMPORTANT THE STATUTE EXPLOITS AN
APPARENTLY NEUTRAL FORM TO CONTROL SCHOOL ASSIGNMENT PLANS BY DIRECTING
THAT THEY BE "COLOR BLIND"; THAT REQUIREMENT, AGAINST THE BACKGROUND OF
SEGREGATION, WOULD RENDER ILLUSORY THE PROMISE OF BROWN V. BOARD OF
EDUCATION, 347 U.S. 483 (1954).  JUST AS THE RACE OF STUDENTS MUST BE
CONSIDERED IN DETERMINING WHETHER A CONSTITUTIONAL VIOLATION HAS
OCCURRED, SO ALSO MUST RACE BE CONSIDERED IN FORMULATING A REMEDY.  TO
FORBID, AT THIS STAGE, ALL ASSIGNMENTS MADE ON THE BASIS OF RACE WOULD
DEPRIVE SCHOOL AUTHORITIES OF THE ONE TOOL ABSOLUTELY ESSENTIAL TO
FULFILLMENT OF THEIR CONSTITUTIONAL OBLIGATION TO ELIMINATE EXISTING
DUAL SCHOOL SYSTEMS. 

SIMILARLY, THE FLAT PROHIBITION AGAINST ASSIGNMENT OF STUDENTS FOR
THE PURPOSE OF CREATING A RACIAL BALANCE MUST INEVITABLY CONFLICT WITH
THE DUTY OF SCHOOL AUTHORITIES TO DISESTABLISH DUAL SCHOOL SYSTEMS.  AS
WE HAVE HELD IN SWANN, THE CONSTITUTION DOES NOT COMPEL ANY PARTICULAR
DEGREE OF RACIAL BALANCE OR MIXING, BUT WHEN PAST AND CONTINUING
CONSTITUTIONAL VIOLATIONS ARE FOUND, SOME RATIOS ARE LIKELY TO BE
USEFUL STARTING POINTS IN SHAPING A REMEDY.  AN ABSOLUTE PROHIBITION
AGAINST USE OF SUCH A DEVICE-- EVEN AS A STARTING POINT-- CONTRAVENES
THE IMPLICIT COMMAND OF GREEN V. COUNTY SCHOOL BOARD, 391 U.S. 430
(1968), THAT ALL REASONABLE METHODS BE AVAILABLE TO FORMULATE AN
EFFECTIVE REMEDY. 

WE LIKEWISE CONCLUDE THAT AN ABSOLUTE PROHIBITION AGAINST
TRANSPORTATION OF STUDENTS ASSIGNED ON THE BASIS OF RACE, "OR FOR THE
PURPOSE OF CREATING A BALANCE OR RATIO," WILL SIMILARLY HAMPER THE
ABILITY OF LOCAL AUTHORITIES TO EFFECTIVELY REMEDY CONSTITUTIONAL
VIOLATIONS.  AS NOTED IN SWANN, SUPRA, AT 29, BUS TRANSPORTATION HAS
LONG BEEN AN INTEGRAL PART OF ALL PUBLIC EDUCATIONAL SYSTEMS, AND IT IS
UNLIKELY THAT A TRULY EFFECTIVE REMEDY COULD BE DEVISED WITHOUT
CONTINUED RELIANCE UPON IT. 

THE REMAINDER OF THE ORDER OF THE DISTRICT COURT IS AFFIRMED FOR THE
REASONS STATED IN ITS OPINION, 312 F.SUPP.  503. 

AFFIRMED. 

/1/  SO FAR AS HERE RELEVANT, N.C. GEN. STAT. SEC. 115-176.1 (SUPP.
1969) READS AS FOLLOWS: 

"NO STUDENT SHALL BE ASSIGNED OR COMPELLED TO ATTEND ANY SCHOOL ON
ACCOUNT OF RACE, CREED, COLOR OR NATIONAL ORIGIN, OR FOR THE PURPOSE OF
CREATING A BALANCE OR RATIO OF RACE, RELIGION OR NATIONAL ORIGINS. 
INVOLUNTARY BUSSING OF STUDENTS IN CONTRAVENTION OF THIS ARTICLE IS
PROHIBITED, AND PUBLIC FUNDS SHALL NOT BE USED FOR ANY SUCH BUSSING." 

/2/  312 F.SUPP 503 (1970).  THE OPINION AS PRINTED GRANTS ONLY
DECLARATORY RELIEF.  HOWEVER, THE DISTRICT COURT AMENDED ITS ORIGINAL
OPINION BY WITHDRAWING PART V AND ENTERING AN ORDER DATED JUNE 22,
1970, WHICH ENJOINED ALL PARTIES "FROM ENFORCING, OR SEEKING THE
ENFORCEMENT OF," THE PORTION OF THE STATUTE FOUND UNCONSTITUTIONAL. 

ANDREW A. VANORE, JR., ASSISTANT ATTORNEY GENERAL OF NORTH CAROLINA,
ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WERE ROBERT B.
MORGAN, ATTORNEY GENERAL, AND RALPH MOODY, DEPUTY ATTORNEY GENERAL. 

JAMES M. NABRIT III ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE JACK GREENBERG, NORMAN J. CHACHKIN, J. LEVONNE CHAMBERS, C.
O. PEARSON, AND ANTHONY G. AMSTERDAM. 

SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY GENERAL LEONARD
FILED A BRIEF FOR THE UNITED STATES AS AMICUS CURIAE. 
..END :



















MOORE V. BOARD OF EDUCATION, 402 U.S. 47 


       MOORE ET AL. V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF NORTH CAROLINA

        NO. 444.  ARGUED OCTOBER 13, 1970-- DECIDED APRIL 20, 1971 


SINCE BOTH PARTIES IN THIS ACTION CHALLENGING A SCHOOL DESEGREGATION
PLAN SEEK THE SAME RESULT, VIZ., A HOLDING THAT NORTH CAROLINA'S ANTI
BUSING LAW IS CONSTITUTIONAL, THERE IS NO ART. III CASE OR
CONTROVERSY.  ADDITIONALLY, ON THE FACTS OF THIS CASE, NO DIRECT APPEAL
TO THIS COURT LIES UNDER 28 U.S.C. 1253. 

312 F.SUPP.  503, APPEAL DISMISSED FOR LACK OF JURISDICTION. 

PER CURIAM. 

APPELLANTS SEEK REVIEW OF THE DECISION OF THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA DECLARING A PORTION OF
THE NORTH CAROLINA ANTI-BUSING STATUTE UNCONSTITUTIONAL, AND ENJOINING
ITS ENFORCEMENT.  IT IS A COMPANION CASE TO NO. 498, NORTH CAROLINA
STATE BOARD OF EDUCATION V. SWANN, ANTE, P. 43.  WE POSTPONED DECISION
ON THE QUESTION OF JURISDICTION, 400 U.S. 803 (1970), AND AFTER HEARING
ON THE MERITS WE NOW DISMISS THE APPEAL FOR LACK OF JURISDICTION. 

AT THE HEARING BOTH PARTIES ARGUED TO THE THREE-JUDGE COURT THAT THE
ANTI-BUSING LAW WAS CONSTITUTIONAL AND URGED THAT THE ORDER OF THE
DISTRICT COURT ADOPTING THE FINGER PLAN SHOULD BE SET ASIDE.  WE ARE
THUS CONFRONTED WITH THE ANOMALY THAT BOTH LITIGANTS DESIRE PRECISELY
THE SAME RESULT, NAMELY A HOLDING THAT THE ANTI-BUSING STATUTE IS
CONSTITUTIONAL.  THERE IS, THEREFORE, NO CASE OR CONTROVERSY WITHIN THE
MEANING OF ART. III OF THE CONSTITUTION.  MUSKRAT V. UNITED STATES, 219
U.S. 346 (1911).  ADDITIONALLY, SINCE NEITHER PARTY SOUGHT AN
INJUNCTION TO RESTRAIN A STATE OFFICER FROM ENFORCING A STATE STATUTE
ALLEGED TO BE UNCONSTITUTIONAL, 28 U.S.C. 2281, THIS IS NOT AN APPEAL
FROM "ANY CIVIL ACTION, SUIT OR PROCEEDING REQUIRED . . . TO BE HEARD .
. . BY A DISTRICT COURT OF THREE JUDGES," 28 U.S.C. 1253, AND HENCE NO
DIRECT APPEAL TO THIS COURT IS AVAILABLE. 

              DISMISSED. 

WHITEFORD S. BLAKENEY ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEF WAS WILLIAM H. BOOE. 

WILLIAM J. WAGGONER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS BENJAMIN S. HORACK. 

SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY GENERAL LEONARD
FILED A BRIEF FOR THE UNITED STATES AS AMICUS CURIAE. 
..END :

















UNITED TRANSPORTATION UNION V. MICHIGAN BAR, 401 U.S. 576 


       UNITED TRANSPORTATION UNION V. STATE BAR OF MICHIGAN

        CERTIORARI TO THE SUPREME COURT OF MICHIGAN

      NO. 434.  ARGUED JANUARY 20, 1971-- DECIDED APRIL 5, 1971 


RESPONDENT BROUGHT THIS ACTION TO ENJOIN THE BROTHERHOOD OF RAILROAD
TRAINMEN (LATER MERGED INTO PETITIONER) FROM ENGAGING IN GROUP LEGAL
ACTIVITY FOR THE STATED PURPOSE OF ASSISTING WORKERS IN FILING DAMAGE
SUITS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT (FELA).  RESPONDENT
CHARGED THAT THE UNION HAD RECOMMENDED TO ITS MICHIGAN MEMBERS SELECTED
CHICAGO ATTORNEYS WHOSE FEES WOULD NOT EXCEED 25% OF THE AMOUNT
RECOVERED.  THE UNION'S ANSWER ADMITTED, INTER ALIA, THAT IT HAD
ENGAGED IN THE PRACTICE OF PROTECTING ITS MEMBERS AGAINST LARGE FEES
AND INCOMPETENT COUNSEL AND THAT UNION MEMBERS WERE REIMBURSED FOR
TRANSPORTING INJURED MEMBERS TO THE LEGAL COUNSEL'S OFFICES.  ON THE
BASIS OF THE PLEADINGS AND ONE WITNESS' TESTIMONY THAT A LARGE NUMBER
OF MICHIGAN FELA CLAIMANTS WERE REPRESENTED BY THE UNION'S CHICAGO
COUNSEL, THE TRIAL COURT ISSUED AN INJUNCTION.  WHILE THAT DECISION WAS
ON APPEAL, THIS COURT DECIDED BROTHERHOOD OF RAILROAD TRAINMEN V.
VIRGINIA STATE BAR, 377 U.S. 1, AND THE MICHIGAN SUPREME COURT
THEREAFTER REMANDED THE CASE TO THE TRIAL COURT FOR FURTHER
CONSIDERATION.  FOLLOWING RESPONDENT'S MOTION FOR JUDGMENT, THAT COURT,
ADOPTING THE DECREE ENTERED AGAINST THE UNION IN TRAINMEN AFTER THIS
COURT'S REMAND, ENJOINED THE UNION FROM "GIVING OR FURNISHING LEGAL
ADVICE TO ITS MEMBERS OR THEIR FAMILIES"; FURNISHING ATTORNEYS THE
NAMES OF INJURED MEMBERS OR INFORMATION RELATING TO THEIR INJURIES;
ACCEPTING COMPENSATION FOR THE SOLICITATION OF LEGAL EMPLOYMENT FOR ANY
LAWYER; AND FROM CONTROLLING THE LAWYER'S FEES.  THE MICHIGAN SUPREME
COURT AFFIRMED.  HELD:  THE INJUNCTION ISSUED AGAINST THE UNION IN THIS
CASE VIOLATED ITS RIGHT UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO
ENGAGE IN GROUP ACTIVITY TO ENABLE ITS MEMBERS TO MEET THE COSTS OF
LEGAL REPRESENTATION AND OTHERWISE TO SECURE MEANINGFUL ACCESS TO THE
COURTS, TRAINMEN, SUPRA; UNITED MINE WORKERS V. ILLINOIS STATE BAR
ASSN., 389 U.S. 217; NAACP V. BUTTON, 371 U.S. 415.  PP. 579-586. 

383 MICH. 201, 174 N.W.2D 811, REVERSED. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED.  HARLAN, J.,
FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, POST, P.
586.  WHITE, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN
PART, IN WHICH BLACKMUN, J., JOINED, POST, P. 600.  STEWART, J., TOOK
NO PART IN THE DECISION OF THE CASE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE MICHIGAN STATE BAR BROUGHT THIS ACTION IN JANUARY 1959 TO ENJOIN
THE MEMBERS OF THE BROTHERHOOD OF RAILROAD TRAINMEN /1/  FROM ENGAGING
IN ACTIVITIES UNDERTAKEN FRO THE STATED PURPOSE OF ASSISTING THEIR
FELLOW WORKERS, THEIR WIDOWS AND FAMILIES, TO PROTECT THEMSELVES FROM
EXCESSIVE FEES AT THE HANDS OF INCOMPETENT ATTORNEYS IN SUITS FOR
DAMAGES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  /2/  THE COMPLAINT
CHARGED, AS FACTORS RELEVANT TO THE CAUSE OF ACTION, THAT THE UNION
RECOMMENDED SELECTED ATTORNEYS TO ITS MEMBERS AND THEIR FAMILIES, THAT
IT SECURED A COMMITMENT FROM THOSE ATTORNEYS THAT THE MAXIMUM FEE
CHARGED WOULD NOT EXCEED 25% OF THE RECOVERY, AND THAT IT RECOMMENDED
CHICAGO LAWYERS TO REPRESENT MICHIGAN CLAIMANTS.  THE STATE BAR'S
COMPLAINT APPEARS TO BE A PLEA FOR COURT PROTECTION OF UNLIMITED LEGAL
FEES.  THE UNION'S ANSWERS ADMITTED THAT IT HAD ENGAGED IN THE PRACTICE
OF PROTECTING MEMBERS AGAINST LARGE FEES AND INCOMPETENT COUNSEL; THAT
SINCE 1930 IT HAD RECOMMENDED, WITH RESPECT TO FELA CLAIMS, THAT
INJURED MEMBER EMPLOYEES, AND THEIR FAMILIES, CONSULT ATTORNEYS
DESIGNATED BY THE UNION AS "LEGAL COUNSEL"; THAT PRIOR TO MARCH 1959,
IT HAD INFORMED THE INJURED MEMBERS AND THEIR FAMILIES THAT THE LEGAL
COUNSEL WOULD NOT CHARGE IN EXCESS OF 25% OF ANY RECOVERY; AND THAT
UNION REPRESENTATIVES WERE REIMBURSED FOR TRANSPORTING INJURED
EMPLOYEES, OR THEIR FAMILIES, TO THE LEGAL COUNSEL OFFICES. 

THE ONLY EVIDENCE INTRODUCED IN THIS CASE WAS THE TESTIMONY OF ONE
EMPLOYEE OF THE ASSOCIATION OF AMERICAN RAILROADS IN 1961 THAT FROM
1953 THROUGH 1960 A LARGE NUMBER OF MICHIGAN FELA CLAIMANTS WERE
REPRESENTED BY THE UNION'S DESIGNATED CHICAGO LEGAL COUNSEL.  BASED ON
THIS EVIDENCE AND THE UNION'S ADMISSIONS SET OUT ABOVE, THE STATE TRIAL
COURT IN 1962 ISSUED AN ORDER ENJOINING THE UNION'S ACTIVITIES ON THE
GROUND THAT THEY VIOLATED THE STATE STATUTE MAKING IT A MISDEMEANOR TO
"SOLICIT" DAMAGE SUITS AGAINST RAILROADS.  /3/  THE UNION APPEALED TO
THE MICHIGAN SUPREME COURT, BUT BEFORE THE CASE WAS ARGUED ON APPEAL,
THIS COURT HANDED DOWN ITS DEICSION IN BROTHERHOOD OF RAILROAD TRAINMEN
V. VIRGINIA STATE BAR, 377 U.S. 1 (1964), INVOLVING A SIMILAR
INJUNCTION SECURED BY THE VIRGINIA STATE BAR AGAINST THE UNION.  WE
HELD IN THAT CASE THAT THE FIRST AMENDMENT GUARANTEES OF FREE SPEECH,
PETITION, AND ASSEMBLY GIVE RAILROAD WORKERS THE RIGHT TO COOPERATE IN
HELPING AND ADVISING ONE ANOTHER IN ASSERTING THEIR RIGHTS UNDER THE
FELA.  WHILE NOT DECIDING EVERY QUESTION THAT POSSIBLY COULD BE RAISED,
OUR OPINION LEFT NO DOUBT THAT WORKERS HAVE A RIGHT UNDER THE FIRST
AMENDMENT TO ACT COLLECTIVELY TO SECURE GOOD, HONEST LAWYERS TO ASSERT
THEIR CLAIMS AGAINST RAILROADS. 

ACKNOWLEDGING OUR DECISION IN TRAINMEN, THE MICHIGAN SUPREME COURT
REMANDED THE INSTANT CASE TO THE STATE TRIAL COURT WITH PERMISSION FOR
AMENDMENT OF THE COMPLAINT "TO SEEK, IF IT BE SO ADVISED, RELIEF NOT
INCONSISTENT WITH THE SUPREME COURT'S SAID OPINION."  374 MICH. 152,
155, 132 N.W.2D 78, 79.  AFTER REMAND, THE STATE BAR MADE A MOTION FOR
FURTHER PROCEEDINGS.  THAT MOTION WAS HEARD ON FEBRUARY 5, 1965, AT
WHICH TIME THE BAR DECLINED TO AMEND ITS COMPLAINT.  FOR REASONS NOT
EXPLAINED IN THE RECORD, THE CASE LINGERED IN THE TRIAL COURT UNTIL MAY
24, 1968.  ON THAT DATE, AFTER A MOTION FOR JUDGMENT BY THE STATE BAR
AND ARGUMENTS ON THE MOTION, THE TRIAL COURT ADOPTED VERBATIM THE
INJUNCTION ENTERED IN THE VIRGINIA STATE COURTS AFTER OUR REMAND IN
TRAINMEN. 

IN AFFIRMING THE TRIAL COURT DECREE, THE MATERIAL PART OF WHICH IS
SET OUT BELOW, /4/  THE MICHIGAN SUPREME COURT GAVE OUR HOLDING IN
TRAINMEN THE NARROWEST POSSIBLEREADING, /5/  FOCUSING ONLY ON THE
SPECIFIC LITERAL LANGUAGE OF THE INJUNCTIVE PROVISIONS CHALLENGED IN
THAT CASE RATHER THAN THE BROAD RANGE OF UNION ACTIVITIES HELD TO BE
PROTECTED BY THE FIRST AMENDMENT.  SIMILARLY, THE MICHIGAN COURT
ERRONEOUSLY RESTRICTED OUR HOLDING IN UNITED MINE WORKERS V. ILLINOIS
STATE BAR ANNS., 389 U.S. 217 (1967), TO "THE OPERATIVE PORTION" OF THE
ILLINOIS DECREE PROHIBITING ANY FINANCIAL CONNECTION BETWEEN THE
ATTORNEY AND THE UNION.  THE MICHIGAN SUPREME COURT FAILED TO FOLLOW
OUR DECISIONS IN TRAINMEN, UNITED MINE WORKERS, AND NAACP V. BUTTON,
371 U.S. 415 (1963), UPHOLDING THE FIRST AMENDMENT PRINCIPLE THAT
GROUPS CAN UNITE TO ASSERT THEIR LEGAL RIGHTS AS EFFECTIVELY AND
ECONOMICALLY AS PRACTICABLE.  WHEN APPLIED, AS IT MUST BE, TO THE
UNION'S ACTIVITIES REFLECTED IN THE RECORD OF THIS CASE, THE FIRST
AMENDMENT FORBIDS THE RESTRAINTS IMPOSED BY THE INJUNCTION HERE UNDER
REVIEW FOR THE FOLLOWING AMONG OTHER REASONS. 

FIRST.  THE DECREE APPROVED BY THE MICHIGAN SUPREME COURT ENJOINS
THE UNION FROM "GIVING OR FURNISHING LEGAL ADVICE TO ITS MEMBERS OR
THEIR FAMILIES."  GIVEN ITS BROADEST MEANING, THIS PROVISION WOULD BAR
THE UNION'S MEMBERS, OFFICERS, AGENTS, OR ATTORNEYS FROM GIVING ANY
KIND OF ADVICE OR COUNSEL TO AN INJURED WORKER OR HIS FAMILY CONCERNING
HIS FELA CLAIM.  IN TRAINMEN WE UPHELD THE COMMONSENSE PROPOSITION THAT
SUCH ACTIVITY IS PROTECTED BY THE FIRST AMENDMENT.  MOREOVER, THE PLAIN
MEANING OF THIS PARTICULAR INJUNCTIVE PROVISION WOULD EMPHATICALLY DENY
THE RIGHT OF THE UNION TO EMPLOY COUNSEL TO REPRESENT ITS MEMBERS, A
RIGHT EXPLICITLY UPHELD IN UNITED MINE WORKERS /6/  AND NAACP V.
BUTTON. 

WE CANNOT ACCEPT THE RESTRICTED INTERPRETATION OF THIS PROVISION
URGED BY THE STATE BAR, AND ACCEPTED BY OUR BROTHER HARLAN, THAT IT
ONLY PROHIBITS THE UNION OR ITS MEMBERS THEMSELVES FROM "PRACTICING
LAW."  THE RECOR8 IS DEVOID OF ANY EVIDENCE OR ALLEGATION OF SUCH
CONDUCT ON THE PART OF THE UNION OR ITS MEMBERS.  A DECREE MUST RELATE
SPECIFICALLY AND EXCLUSIVELY TO THE PLEADINGS AND PROOF.  IF NOT SO
RELATED, THE PROVISION, BECAUSE OF ITS VAGUENESS, WILL JEOPARDIZE THE
EXERCISE OF PROTECTED FREEDOMS.  THIS INJUNCTION, LIKE A CRIMINAL
STATUTE, PROHIBITS CONDUCT UNDER FEAR OF PUNISHMENT.  THEREFORE, WE
LOOK AT THE INJUNCTION AS W LOOK AT A STATUTE, AND IF UPON ITS FACE IT
ABRIDGES RIGHTS GUARANTEED BY THE FIRST AMENDMENT, IT SHOULD BE STRUCK
DOWN.  OUR STATEMENT IN NAACP V. BUTTON CONCERNING THE STATUTE THERE IN
QUESTION IS EQUALLY APPLICABLE TO THE INJUNCTION NOW BEFORE US:  "(WE
CANNOT ASSUME THAT, IN ITS SUBSEQUENT ENFORCEMENT, AMBIGUITIES WILL BE
RESOLVED IN FAVOR OF ADEQUATE PROTECTION OF FIRST AMENDMENT RIGHTS." 
371 U.S.,AT 438. 

SECOND.  THE DECREE ALSO ENJOINS THE UNION FROM FURNISHING TO ANY
ATTORNEY THE NAMES OF INJURED MEMBERS OR INFORMATION RELATING TO THEIR
INJURIES.  THE INVESTIGATION OF ACCIDENTS BY UNION STAFF FOR PURPOSES
OF GATHERING EVIDENCE TO ASSIST THE INJURED WORKER OR HIS FAMILY IN
ASSERTING FELA CLAIMS WAS PART OF THE UNION PRACTICE UPHELD IN
TRAINMEN.  377 U.S.,AT 4 N. 8.  IT WOULD SEEM AT LEAST A LITTLE STRANGE
NOW TO HOLD THAT THE UNION CANNOT COMMUNICATE THAT INFORMATION TO THE
INJURED MEMBER'S ATTORNEY.  /7/ 

THIRD.  A PROVISION OF THE DECREE ENJOINS THE MEMBERS OF THE UNION
FROM "ACCEPTING OR RECEIVING COMPENSATION OF ANY KIND, DIRECTLY OR
INDIRECTLY, FOR THE SOLICITATION OF LEGAL EMPLOYMENT FOR ANY LAWYER,
WHETHER BY WAY OF SALARY, COMMISSION OR OTHERWISE."  THE UNION CONCEDED
THAT PRIOR TO 1959, UNION REPRESENTATIVES WERE REIMBURSED FOR THEIR
ACTUAL TIME SPENT AND OUT-OF-POCKET EXPENSES INCURRED IN BRINGING
INJURED MEMBERS OR THEIR FAMILIES TO THE OFFICES OF THE LEGAL COUNSEL. 
SINCE THE MEMBERS OF A UNION HAVE A FIRST AMENDMENT RIGHT TO HELP AND
ADVISE EACH OTHER IN SECURING EFFECTIVE LEGAL REPRESENTATION, THERE CAN
BE NO DOUBT THAT TRANSPORTATION OF INJURED MEMBERS TO AN ATTORNEY'S
OFFICE IS WITHIN THE SCOPE OF THAT PROTECTED ACTIVITY.  TO THE EXTENT
THAT THE INJUNCTION PROHIBITS THIS PRACTICE, IT IS INVALID UNDER
TRAINMEN, UNITED MINE WORKERS, AND NAACP V. BUTTON. 

FOURTH.  OUR BROTHERS HARLAN AND WHITE APPARENTLY ACCEPT THE STATE
BAR CONTENTION THAT THE PROVISION PROHIBITING COMPENSATION TO UNION
REPRESENTATIVES FOR SOLICITATION REFERS TO COMPENSATION PAID BY THE
ATTORNEY RATHER THAN THE UNION.  AND SO INTERPRETED.  IT SUPPLEMENTS
THE TWO PROVISIONS WHICH PROHIBIT THE UNION FROM SHARING IN LEGAL FEES
RECEIVED BY THE RECOMMENDED COUNSEL.  THERE IS NO BASIS FOR THIS
RESTRAINT.  SUCH ACITIVITY IS NOT EVEN SUGGESTED IN THE COMPLAINT. 
THERE IS NOT A LINE OF EVIDENCE CONCERNING SUCH PRACTICE IN THE RECORD
IN THIS CASE.  IF THERE IS ANY SUCH SUGGESTION, IT IS IN RECORDS IN
OTHER CASES INVOLVING OTHER PARTIES IN OTHER COURTS, RECORDS UPON WHICH
WE BELIEVE OUR BROTHER HARLAN ERRONEOUSLY SEEKS TO RELY.  IN FACT, THE
EXPLANATION FOR THE APPEARANCE OF THE PROVISIONS IN THIS DECREE APPEARS
TO BE THE MICHIGAN COURT'S VERBATIM ADOPTION OF A VIRGINIA INJUNCTION
ISSUED IN A DIFFERENT CASE ON DIFFERENT PLEADINGS RELATING TO DIFFERENT
FACTS.  DECREES BETWEEN LITIGANTS SHOULD NOT REST ON ANY SUCH
UNSUPPORTABLE BASIS AS THIS. 

OUR BROTHER HARLAN APPEARS TO CONCEDE THAT THE STATE BAR HAS NEITHER
ALLEGED NOR PROVED THAT THE UNION HAS ENGAGED IN THE PAST, IS PRESENTLY
ENGAGING OR PLANS TO ENGAGE, IN THE SHARING OF LEGAL FEES. 
NONETHELESS, HE SUGGESTS THAT THE INJUNCTIONAGAINST SUCH CONDUCT IS
JUSTIFIED IN ORDER TO REMOVE ANY "TEMPTATION" FOR THE UNION TO
PARTICIPATE IN SUCH ACTIVITIES.  WE CANNOT ACCEPT THIS NOVEL CONCEPT OF
EQUITY JURISDICTION THAT WOULD OPEN THE COURTS TO CLAIMS FOR
INJUNCTIONS AGAINST "TEMPTATION," AND WOULD DEEM POTENTIAL "TEMPTATION"
TO BE A SUFFICIENT BASIS FOR THE ISSUANCE OF AN INJUNCTION.  INDEED,
IT WOULD APPEAR THAT JURISDICTION OVER "TEMPTATION" HAS HERETOFORE BEEN
RESERVED TO THE CHURCHES. 

AN INJUNCTION CAN ISSUE ONLY AFTER THE PLAINTIFF HAS ESTABLISHED
THAT THE CONDUCT SOUGHT TO BE ENJOINED IS ILLEGAL AND THAT THE
DEFENDANT, IF NOT ENJOINED, WILL ENGAGE IN SUCH CONDUCT.  IN HITCHMAN
COAL & COKE CO. V. MITCHELL, 245 U.S. 229, 262 (1917), THIS COURT
STRUCK THE PORTIONS OF A DECREE ENJOINING A UNION FROM PICKETING AND
PHYSICAL VIOLENCE BECAUSE THERE WAS NO EVIDENCE THAT EITHER OF THESE
FORMS OF INTERFERENCE WAS THREATENED.  /8/  LIKEWISE IN THE PRESENT
CASE, WITH RESPECT TO THE PROHIBITION AGAINST SHARING LEGAL FEES, THE
STATE BAR SIMPLY HAS MADE NO SHOWING THAT SUCH CONDUCT WAS THREATENED. 
INDEED, IT HAS MADE NO SHOWING AT ALL.  THEREFORE, THAT PROVISION OF
THE DECREE, TO USE AN OFTEN QUOTED SLOGAN, WOULD APPEAR TO BE NOT ONLY
UNJUSTIFIED, BUT ALSO "ARBITRARY AND CAPRICIOUS." 

FIFTH.  FINALLY, THE CHALLENGED DECREE BARS THE UNION FROM
CONTROLLING, DIRECTLY OR INDIRECTLY, THE FEES CHARGED BY ANY LAWYER. 
THE COMPLAINT ALLEGED THAT THE UNION SOUGHT TO PROTECT ITS MEMBERS FROM
EXCESSIVE LEGAL FEES BY SECURING AN AGREEMENT FROM THE COUNSEL IT
RECOMMENDS THAT THE FEE WILL NOT EXCEED 25% OF THE RECOVERY, AND THAT
THE PERCENTAGE WILL INCLUDE ALL EXPENSES INCIDENTAL TO INVESTIGATION
AND LITIGATION.  THE UNION IN ITS ANSWER ADMITTED THAT PRIOR TO 1959 IT
SECURED SUCH AGREEMENTS FOR THE PROTECTION OF ITS MEMBERS. 

UNITED MINE WORKERS UPHELD THE RIGHT OF WORKERS TO ACT COLLECTIVELY
TO OBTAIN AFFORDABLE AND EFFECTIVE LEGAL REPRESENTATION.  ONE OF THE
ABUSES SOUGHT TO BE REMEDIED BY THE MINE WORKERS' PLAN WAS THE
SITUATION PURSUANT TO WHICH MEMBERS "WERE REQUIRED TO PAY FORTY OR
FIFTY PER CENT OF THE AMOUNTS RECOVERED IN DAMAGE SUITS, FOR ATTORNEY
FEES."  389 U.S.,AT 219.  THE MINE WORKERS DEALT WITH THE PROBLEM BY
EMPLOYING AN ATTORNEY ON A SALARY BASIS, THEREBY PROVIDING FREE LEGAL
REPRESENTATION FOR ITS MEMBERS IN ASSERTING THEIR CLAIMS BEFORE THE
STATE WORKMEN'S COMPENSATION BOARD.  THE UNION IN THE INSTANT CASE
SOUGHT TO PROTECT ITS MEMBERS AGAINST THE SAME ABUSE BY LIMITING THE
FEE CHARGED BY RECOMMENDED ATTORNEYS.  IT IS HARD TO BELIEVE THAT A
COURT OF JUSTICE WOULD DENY A COOPERATIVE UNION OF WORKERS THE RIGHT TO
PROTECT ITS INJURED MEMBERS, AND THEIR WIDOWS AND CHILDREN, FROM THE
INJUSTICE OF EXCESSIVE FEES AT THE HANDS OF INADEQUATE COUNSEL. 
INDEED, THE MICHIGAN COURT WAS FORECLOSED FROM SO DOING BY OUR DECISION
IN UNITED MINE WORKERS.  /9/ 

IN THE CONTEXT OF THIS CASE WE DEAL WITH A COOPERATIVE UNION OF
WORKERS SEEKING TO ASSIST ITS MEMBERS IN EFFECTIVELY ASSERTING CLAIMS
UNDER THE FELA.  BUT THE PRINCIPLE HERE INVOLVED CANNOT BE LIMITED TO
THE FACTS OF THIS CASE.  AT ISSUE IS THE BASIC RIGHT TO GROUP LEGAL
ACTION, A RIGHT FIRST ASSERTED IN THIS COURT BY AN ASSOCIATION OF
NEGROES SEEKING THE PROTECTION OF FREEDOMS GUARANTEED BY THE
CONSTITUTION.  THE COMMON THREAD RUNNING THROUGH OUR DECISIONS IN NAACP
V. BUTTON, TRAINMEN, AND UNITED MINE WORKERS IS THAT COLLECTIVE
ACTIVITY UNDERTAKEN TO OBTAIN MEANINGFUL ACCESS TO THE COURTS IS A
FUNDAMENTAL RIGHT WITHIN THE PROTECTION OF THE FIRST AMENDMENT. 
HOWEVER, THAT RIGHT WOULD BE A HOLLOW PROMISE IF COURTS COULD DENY
ASSOCIATIONS OF WORKERS OR OTHERS THE MEANS OF ENABLING THEIR MEMBERS
TO MEET THE COSTS OF LEGAL REPRESENTATION.  THAT WAS THE HOLDING IN
UNITED MINE WORKERS, TRAINMEN, AND NAACP V. BUTTON.  THE INJUNCTION IN
THE PRESENT CASE CANNOT STAND IN THE FACE OF THESE PRIOR DECISIONS. 
          REVERSED. 

/1/  ON JANUARY 1, 1969, AFTER THE DECREE WAS ENTERED IN THE COURT
BELOW, THE BROTHERHOOD OF RAILROAD TRAINMEN MERGED INTO A NEWLY CREATED
UNION, THE UNITED TRANSPORTATION UNION.  THE SUCCESSOR UNION IS THE
PETITIONER IN THIS CASE. 

/2/  35 STAT. 65, AS AMENDED, 45 U.S.C. 51-60. 

/3/  SECTION 750.410, MICH. COMP. LAWS (1948), IN RELEVANT PART
PROVIDES: 

"ANY PERSON . . . OR ORGANIZATION OF ANY KIND, EITHER INCORPORATED
OR UNINCORPORATED . . . WHO SHALL DIRECTLY OR INDIRECTLY . . . SOLICIT
ANY PERSON INJURED AS THE RESULT OF AN ACCIDENT . . . FOR THE PURPOSE
OF REPRESENTING SUCH PERSON IN MAKING CLAIM FOR DAMAGES . . . SHALL BE
GUILTY OF A MISDEMEANOR . . . . " 

/4/  THE DECREE ENTERED BY THE MICHIGAN TRIAL COURT PERMANENTLY
RESTRAINED AND ENJOINED THE UNION: 

"FROM GIVING OR FURNISHING LEGAL ADVICE TO ITS MEMBERS OR THEIR
FAMILIES; FROM INFORMING ANY LAWYER OR LAWYERS THAT AN ACCIDENT HAS
BEEN SUFFERED BY A MEMBER OR NON-MEMBER OF THE SAID BROTHERHOOD AND
FURNISHING THE NAME AND ADDRESS OF SUCH INJURED OR DECEASED PERSON FOR
THE PURPOSE OF OBTAINING LEGAL EMPLOYMENT FOR ANY LAYWER; FROM STATING
OR SUGGESTING THAT A RECOMMENDED LAWYER WILL DEFRAY EXPENSES OF ANY
KIND OR MAKE ADVANCES FOR ANY PURPOSE TO SUCH INJURED PERSONS OR THEIR
FAMILIES PENDING SETTLEMENT OF THEIR CLAIM; FROM CONTROLLING, DIRECTLY
OR INDIRECTLY, THE FEES CHARGED OR TO BE CHARGED BY ANY LAWYER; FROM
ACCEPTING OR RECEIVING COMPENSATION OF ANY KIND, DIRECTLY OR
INDIRECTLY, FOR THE SOLICITATION OF LEGAL EMPLOYMENT FOR ANY LAWYER,
WHETHER BY WAY OF SALARY, COMMISSION OR OTHERWISE; FROM SHARING IN ANY
MANNER IN THE LEGAL FEES OF ANY LAWYER OR COUNTENANCING THE SPLITTING
OF OR SHARING IN SUCH FEES WITH ANY LAYMAN OR LAY AGENCY; AND FROM
SHARING IN ANY RECOVERY FOR PERSONAL INJURY OR DEATH BY GIFT,
ASSIGNMENT OR OTHERWISE." 

/5/  383 MICH. 201, 174 N.W.2D 811. 

/6/  THE DECREE OVERTURNED IN UNITED MINE WORKERS ALSO ENJOINED THE
UNION FROM:  "GIVING LEGAL COUNSEL AND ADVICE."  389 U.S.,AT 218 N. 1. 
IT WAS CONCEDED IN THAT CASE THAT THE PROVISION WAS DIRECTED AT THE
UNION'S EMPLOYMENT OF AN ATTORNEY. 

/7/  OUR BROTHER HARLAN SUGGESTS THAT THE INJURED MEMBER SHOULD BE
FREE TO DIRECT THE COLLECTED INFORMATION TO WHATEVER LAWYER HE CHOOSES,
RATHER THAN FOR THE UNION TO GIVE IT TO THE UNION'S RECOMMENDED LEGAL
COUNSEL.  HOWEVER THE INJUNCTION PROHIBITS THE UNION FROM FURNISHING
THE INFORMATION TO "ANY LAWYER," APPARENTLY INCLUDING BOTH RECOMMENDED
AND NONRECOMMENDED COUNSEL ALIKE.  THE INJUNCTION WOULD PROHIBIT THE
INJURED MEMBER'S ATTORNEY, REGARDLESS OF WHETHER OR NOT HE WAS
RECOMMENDED BY THE UNION, FROM COMMUNICATING WITH THE UNION'S
REPRESENTATIVE WHO INVESTIGATED THE ACCIDENT, IS FAMILIAR WITH THE
FACTS, AND, OTHER THAN THE INJURED MEMBER HIMSELF, IS PROBABLY THE
PERSON MOST QUALIFIED TO ANSWER THE ATTORNEY'S QUESTIONS AND ASSIST IN
PREPARATION OF THE CLAIM.  TO SATISFY THE MICHIGAN COURT'S NOTION THAT
DIRECT COMMUNICATION BETWEEN THE UNION AND THE MEMBER'S ATTORNEY IS
SOMEHOW UNLAWFUL, IT SEEMS OUR BROTHER HARLAN WOULD RESTRICT THE
UNION'S EFFORTS, WHICH WE EXPRESSLY APPROVED IN TRAINMEN, OF ASSISTING
THE INJURED MEMBER IN PREPARING HIS CASE FOR TRIAL, TO A WRITTEN
ACCIDENT REPORT FILED WITH THE INJURED MEMBER. 

/8/  MR. JUSTICE BRANDEIS DISSENTED ON THE GROUND THAT THIS
PRINCIPLE SHOULD HAVE BEEN APPLIED TO STRIKE THE OTHER PROVISIONS OF
THE INJUNCTION AS WELL.  245 U.S.,AT 263 (BRANDEIS, J., DISSENTING). 

/9/  THE INJUNCTION ALSO BARS THE UNION "FROM STATING OR SUGGESTING
THAT A RECOMMENDED LAWYER WILL DEFRAY EXPENSES OF ANY KIND OR MAKE
ADVANCES FOR ANY PURPOSE TO SUCH INJURED PERSONS OR THEIR FAMILIES
PENDING SETTLEMENT OF THEIR CLAIM."  THE ONLY ALLEGATION IN THE
COMPLAINT POSSIBLY RELATING TO THIS INJUNCTIVE PROVISION IS THAT THE
UNION REPRESENTATIVES INFORMED THE INJURED MEMBERS THAT THE 25% FEE
INCLUDED ALL EXPENSES.  THIS PROVISION OF THE INJUNCTION, THEREFORE, IS
INVALID FOR THE SAME REASONS THAT THE PROVISION LIMITING FEES IS
INVALID. 

MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

THE COURT'S CONCLUSIONS WITH RESPECT TO THE ISSUES PRESENTED BY THE
CASE AT BAR ARE, IN MY VIEW, FLAWED BY THE ABSENCE OF ANY EXAMINATION
OF THE RELATIONSHIP BETWEEN THIS CASE AND THE SUBSTANTIALLY
CONTEMPORAENOUS PROCEEDINGS IN ILLINOIS AND VIRGINIA AGAINST THE SAME
UNION WITH RESPECT TO THE SAME CHARGES OF UNPROFESSIONAL CONDUCT IN THE
BROTHERHOOD'S "LEGAL AID DEPARTMENT." 

        I 

THE HISTORY OF THE ESTABLISHMENT OF THE LEGAL AID DEPARTMENT AND THE
EARLY ATTACKS UPON IT BY STATE AND LOCAL BAR ASSOCIATIONS, WITH THE
ASSISTANCE AND ENCOURAGEMENT OF THE ASSOCIATION OF AMERICAN RAILROADS,
HAS BEEN FULLY RECOUNTED ELSEWHERE.  SEE BODLE, GROUP LEGAL SERVICES:
THE CASE FOR BRT, 12 U.C.L.A.L.REV.  306, 307-317 (1965); NOTE, 50
CORNELL L.Q. 344 (1965).  THE MOST SIGNIFICANT POINT IN THIS HISTORY,
FOR PRESENT PURPOSES, CAME IN THE LATE 1950'S.  WITH DISCIPLINARY
PROCEEDINGS PENDING AGAINST ITS REGIONAL COUNSEL IN CHICAGO, /1/  THE
BROTHERHOOD COUNTERATTACKED BY MOVING IN THE SUPREME COURT OF ILLINOIS
FOR A DECLARATION THAT THE BROTHERHOOD'S PLAN WAS BOTH LEGAL AND
COMPATIBLE WITH THE MINIMUM STANDARDS OF PROFESSIONAL CONDUCT.  AFTER
HEARINGS BEFORE A SPECIAL COMMISSIONER, THE ILLINOIS COURT FOUND THAT
THE BASIC FACTS WITH RESPECT TO THE OPERATION OF THE LEGAL AID
DEPARTMENT WERE NOT SERIOUSLY DISPUTED: 

      "AS IT PRESENTLY OPERATES, THE LEGAL AID DEPARTMENT OF THE

  BROTHERHOOD MAINTAINS A CENTRAL OFFICE IN CLEVELAND, OIHO, AT THE

  NATIONAL HEADQUARTERS OF THE BROTHERHOOD.  IN THAT OFFICE IT HAS

  A STAFF CONSISTING OF A CHIEF CLERK, A RESEARCH ANALYST, THREE

  STENOGRAPHERS AND A FILE CLERK.  IT ALSO HAS A NUMBER OF REGIONAL

  INVESTIGATORS.  THE CLEVELAND OFFICE SERVES AS A CLEARING HOUSE

  WHICH RECEIVES REPORTS FROM ALL BROTHERHOOD LODGES OF INSTANCES

IN WHICH MEMBERS HAVE BEEN INJURED OR KILLED IN RAILROAD

ACCIDENTS.  IT NOTIFIES THE APPROPRIATE REGIONAL INVESTIGATOR AND

  REGIONAL COUNSEL OF ALL ACCIDENTS. 

        .          .          .          . 

     "BY AGREEMENT WITH THE BROTHERHOOD THE ATTORNEYS WHO ARE

  DESIGNATED AS REGIONAL COUNSEL CHARGE A FEE OF TWENTY-FIVE PER

  CENT OF THE AMOUNT RECOVERED IN EACH CASE, WHETHER RECOVERY IS BY

  SETTLEMENT OR BY JUDGMENT.  REGIONAL COUNSEL HAVE ALSO AGREED TO

  AND DO PAY ALL COURT COSTS, INVESTIGATION COSTS, COSTS OF

  DOCTORS' EXAMINATIONS, EXPERT WITNESS FEES, TRANSCRIPT COSTS AND

  THE COST OF OPERATING THE LEGAL AID DEPARTMENT OF THE UNION

  (INCLUDING THE DEPARTMENT'S RATABLE SHARE OF THE EXPENSES OF THE

  BROTHERHOOD'S CONVENTIONS).  ALL EXPENSES OF THE LEGAL AID

  DEPARTMENT ARE APPORTIONED AMONG THE SIXTEEN REGIONAL COUNSEL IN

  THE RATIO THAT THEIR RESPECTIVE GROSS FEES BEAR TO THE TOTAL

  GROSS RECOVERIES THROUGHOUT THE COUNTRY . . . . 

     "THE BROTHERHOOD CONSTITUTION REQUIRES THAT EACH LOCAL LODGE

  APPOINT SOMEONE WHOSE DUTY IT IS TO FILL OUT AN ACCIDENT REPORT

  WHENEVER A MEMBER IS INJURED AND ALSO TO MAKE CONTACT WITH THE

INJURED MAN, OR THE RELATIVES OF A MAN WHO IS KILLED, AND MAKE IT

  KNOWN THAT LEGAL ADVICE WILL BE GIVEN FREE OF CHARGE BY THE

  REGIONAL COUNSEL.  HE ALSO MAKES KNOWN THE AVAILABILITY OF

  REGIONAL COUNSEL TO HANDLE THE CLAIM AND ANY ENSUING LITIGATION

  FOR A TOTAL CHARGE OF TWENTY-FIVE PER CENT OF THE AMOUNT

  RECOVERED BY SETTLEMENT OR BY LITIGATION.  THE TWENTY-FIVE PER

  CENT INCLUDES ALL EXPENSES OF INVESTIGATION AND LITIGATION. 

     "THE LODGE MEMBER WHO INVESTIGATES THE OCCURRENCE AND MAKES

  CONTACT WITH THE INJURED MAN RECOMMENDS AND URGES THAT REGIONAL

  COUNSEL BE CONSULTED AND EMPLOYED.  THESE MEN CARRY BLANK COPIES

OF CONTRACTS EMPLOYING THE REGIONAL COUNSEL'S FRIM AS ATTORNEYS. 

  THE REGIONAL INVESTIGATORS EMPLOYED BY THE LEGAL AID DEPARTMENT

  ALSO CARRY THESE CONTRACTS.  IF A SIGNED CONTRACT IS NOT OBTAINED

  BY AN INVESTIGATOR IN THE FIELD, AN INVESTIGATOR OFTEN BRINGS THE

  INTERESTED PARTIES TO THE OFFICE OF THE REGIONAL COUNSEL IN

  CHICAGO.  THE INJURED MAN MAY BE ACCOMPANIED BY HIS WIFE, AND IF

  THE INTERESTED PARTY IS A WIDOW, THE WIFE OF THE INVESTIGATOR

  ALSO MAKES THE TRIP.  THE EXPENSES OF THESE TRIPS ARE PAID

  IMMEDIATELY BY REGIONAL COUNSEL.  THE LODGE MEMBER WHO

  INVESTIGATES AND URGES THE EMPLOYMENT OF REGIONAL COUNSEL IS ALSO

  COMPENSATED BY REGIONAL COUNSEL AT HIS REGULAR HOURLY WAGE RATE

  FOR TIME SPENT IN INVESTIGATING THE CASE AND IN MAKING THE TRIP

  TO CHICAGO.  THESE AMOUNTS ARE PAID WHETHER OR NOT THE REGIONAL

  COUNSEL IS RETAINED, AND REGARDLESS OF THE ULTIMATE OUTCOME.  IN

  ADDITION (THE REGIONAL COUNSEL IN CHICAGO) TESTIFIED, 'THERE ARE

  MANY TIMES WHEN ONE OF THE BOYS WILL BRING IN A CASE, AND TAKING

  CARE OF THE INVESTIGATION, ETC., THEY ARE GIVEN A GRATUITY OF

$100 OR $150.'"  IN RE BROTHERHOOD OF RAILROAD TRAINMEN, 13

  ILL.2D 391, 392-395, 150 N.E.2D 163, 165-166 (1958). 

ON THE BASIS OF THE FACTS THUS FOUND, THE COURT LAID DOWN THE
FOLLOWING GUIDELINES TO INDICATE TO THE BROTHERHOOD WHAT IT COULD AND
COULD NOT DO IN CONNECTION WITH PERSONAL INJURY AND WRONGFUL DEATH
CLAIMS WITH RESPECT TO ITS MEMBERS: 

"WE ARE OF THE OPINION THAT THE BROTHERHOOD MAY PROPERLY MAINTAIN A
STAFF TO INVESTIGATE INJURIES TO ITS MEMBERS.  IT MAY SO CONDUCT THOSE
INVESTIGATIONS THAT THEIR RESULTS ARE OF MAXIMUM VALUE TO ITS MEMBERS
IN PROSECUTING THEIR INDIVIDUAL CLAIMS, AND IT MAY MAKE THE REPORTS OF
THOSE INVESTIGATIONS AVAILABLE TO THE INJURED MAN OR HIS SURVIVORS. 
SUCH INVESTIGATIONS CAN BE FINANCED DIRECTLY AND WITHOUT UNDUE BURDEN
BY THE 218,000 MEMBERS OF THE BROTHERHOOD. 

     "THE BROTHERHOOD MAY ALSO MAKE KNOWN TO ITS MEMBERS GENERALLY,

  AND TO INJURED MEMBERS AND THEIR SURVIVORS IN PARTICULAR, FIRST,

  THE ADVISABILITY OF OBTAINING LEGAL ADVICE BEFORE MAKING A

  SETTLEMENT AND SECOND, THE NAMES OF ATTORNEYS WHO, IN ITS

  OPINION, HAVE THE CAPACITY TO HANDLE SUCH CLAIMS SUCCESSFULLY. 

  ITS EMPLOYEES, HOWEVER, MAY NOT CARRY CONTRACTS FOR THE

  EMPLOYMENT OF ANY LAWYER, OR PHOTOSTATS OF SETTLEMENT CHECKS.  NO

  FINANCIAL CONNECTION OF ANY KIND BETWEEN THE BROTHERHOOD AND ANY

  LAWYER IS PERMISSIBLE.  NO LAWYER CAN PROPERLY PAY ANY AMOUNT

  WHATSOEVER TO THE BROTHERHOOD OR ANY OF ITS DEPARTMENTS, OFFICRES

  OR MEMBERS AS COMPENSATION, REIMBURSEMENT OF EXPENSES OR GRATUITY

  IN CONNECTION WITH THE PROCUREMENT OF A CASE.  NOR CAN THE

  BROTHERHOOD FIX THE FEES TO BE CAHRGED FOR SERVICES TO ITS

  MEMBERS.  THE RELATIONSHIP OF THE ATTORNEY TO HIS CLIENT MUST

  REMAIN AN INDIVIDUAL AND A PERSONAL ONE. 

     "THE COURSE THUS OUTLINED, IF ADOPTED, WILL MAKE IT POSSIBLE

  FOR THE BROTHERHOOD TO ACHIEVE ITS LEGITIMATE OBJECTIVES WITHOUT

  TEARING DOWN THE STANDARDS OF THE LEGAL PROFESSION."  ID., AT

  397-398, 150 N.E.2D, AT 167-168. 

THE COURT GAVE THE BROTHERHOOD OVER A YEAR, UNTIL JULY 1, 1959, TO
BRING ITSELF INTO COMPLIANCE WITH THESE STANDARDS.  ID., AT 399, 150
N.E.2D, AT 168. 

THE DECREE THUS RENDERED APPEARED TO SATISFY BOTH THE BROTHERHOOD
AND THE BAR.  SEE NOTE, 50 CORNELL L.Q. 344, 348 AND N. 32 (1965);
BODLE, GROUP LEGAL SERVICES:  THE CASE FOR BRT, 12 U.C.L.A.L.REV.  306,
317 (1965).  BY LETTER DATED MARCH 16, 1959, THE PRESIDENT OF THE
BROTHERHOOD DIRECTED ALL LEGAL COUNSEL "TO LIVE UP TO SAID OPINION IN
ITS ENTIRETY" ON PAIN OF BEING REMOVED FROM OFFICE AND REPORTED TO THE
LOCAL BAR ASSOCIATION.  THE LETTER ALSO ANNOUNCED THAT "(THE
BROTHERHOOD WILL FINANCE ITS LEGAL AID DEPARTMENT, AND WILL INVESTIGATE
ACCIDENTS SO THAT IT WILL BE ACQUAINTED WITH THE CAUSE OF SAID
ACCIDENTS, AND BY SO DOING WILL BE ABLE TO REMEDY ANY VIOLATION OF THE
FEDERAL EMPLOYERS' LIABILITY ACT AND THE SAFETY APPLIANCE ACT.  THE
RESULT OF SUCH INVESTIGATION SHALL BE MADE AVAILABLE ONLY TO THE
INJURED PERSON."  APP. 16-17.  THE OPINION OF THE ILLINOIS COURT AND
THE LETTER OF THE BRT PRESIDENT DIRECTING COMPLIANCE THEREWITH BECAME
THE BASIS FOR CONSENT JUDGMENTS IN NEBRASKA, /2/  MISSOURI, /3/  AND
SEVERAL OTHER STATES.  /4/ 

THE VIRGINIA BAR, HOWEVER, WAS NOT CONTENT WITH THE ANTI
SOLICITATION MEASURES ORDERED BY THE ILLINOIS COURT, /5/  AND IT
PRESSED FOR AND OBTAINED A MORE SWEEPING DECREE.  THAT DECREE, AS
ORIGINALLY ENTERED, RESTRAINED THE BROTHERHOOD 

"(1) FROM GIVING OR FURNISHING LEGAL ADIVCE TO ITS MEMBERS OR THEIR
FAMILIES; (2) FROM HOLDING OUT LAWYERS SELECTED BY IT AS THE ONLY
APPROVED LAWYERS TO AID THE MEMBERS OR THEIR FAMILIES; (3) FROM
INFORMING ANY LAWYER THAT AN ACCIDENT HAS OCCURRED AND FURNISHING THE
NAME AND ADDRESS OF AN INJURED OR DECEASED MEMBER FOR THE PURPOSE OF
OBTAINING LEGAL EMPLOYMENT FOR SUCH LAWYER; (4) OR IN ANY OTHER MANNER
SOLICITING OR ENCOURAGING SUCH LEGAL EMPLOYMENT OF THE SELECTED
LAWYERS; (5) FROM STATING OR SUGGESTING THAT SUCH SELECTED LAWYERS WILL
DEFRAY EXPENSES AND MAKE ADVANCES TO CLIENTS PENDING SETTLEMENT OF
CLAIMS; (6) FROM CONTROLLING, DIRECTLY OR INDIRECTLY, FEES CHARGED OR
TO BE CHARGED BY ANY LAWYER; (7) FROM MAKING COMPENSATION FOR THE
SOLICITATION OF LEGAL EMPLOYMENT FOR ANY LAWYER, WHETHER BY WAY OF
SALARY, COMMISSION OR OTHERWISE; (8) FROM IN ANY MANNER SHARING IN THE
LEGAL FEES OF ANY LAWYER, OR COUNTENANCING THE SPLITTING OF SUCH FEES
WITH ANY LAYMAN OR LAY AGENCY; (9) AND FROM DOING ANY ACT OR
COMBINATION OF ACTS, AND FROM FORMULATING AND PUTTING INTO PRACTICE ANY
PLAN, PATTERN OR DESIGN, THE RESULT OF WHICH IS TO CHANNEL LEGAL
EMPLOYMENT TO ANY PARTICULAR LAYWER OR GROUP OF LAYWERS; (10) AND, IN
GENERAL, FROM VILATING THE LAWS GOVERNING THE PRACTICE OF LAW IN THE
COMMONWEALTH OF VIRGINIA."  BROTHERHOOD OF RAILROAD TRAINMEN V.
COMMONWEALTH EX REL. VIRGINIA STATE BAR, 207 VA. 182, 184 N. 1, 149
S.E.2D 265, 266-267, N. 1 (1966) (NUMBERS HAVE BEEN INSERTED FOR
CONVENIENT REFERENCE). 

THE BROTHERHOOD SOUGHT AND OBTAINED REVIEW BY THIS COURT, LIMITING
ITS ATTACK TO THE PROVISIONS NUMBERED (2), (4), AND (9) ABOVE.  SEE
BROTHERHOOD OF RAILROAD TRAINMEN V. VIRGINIA EX REL. VIRGINIA STATE
BAR, 377 U.S. 1, 4-5 (1964).  THIS WAS APPARENTLY THE RESULT OF A
TACTICAL DECISION, FOR IT ENABLED THE BROTHERHOOD TO ARGUE THAT IT HAD
ACQUIESCED IN THE RESTRAINTS IMPOSED ON ITS ACTIVITIES BY THE ILLINOIS
SUPREME COURT, WHICH THAT COURT HAD HELD WERE ADEQUATE TO PROTECT THE
ETHICS OF THE LEGAL PROFESSION AND THE PUBLIC INTEREST.  /6/  THE
BROTHERHOOD THEREFORE COULD TAKE THE POSITION THAT IT CONTESTED THE
VIRGINIA DECREE ONLY BECAUSE "THE (VIRGINIA) BAR SOUGHT A MORE
RESTRICTIVE INJUNCTION THAN THE ILLINOIS OPINION SUGGESTED."  REPLY
BRIEF 29, BROTHERHOOD OF RAILROAD TRAINMEN V. VIRGINIA EX REL. VIRGINIA
STATE BAR, NO. 34, O.T. 1963. 

THIS COURT ACCEPTED THE BROTHERHOOD'S CONTENTIONS AND REVERSED.  ON
REMAND, THE VIRGINIA COURTS DELETED THE PROVISIONS STRUCK DOWN BY THIS
COURT, REPLACED PROVISION (10) WITH A PROHIBITION ON "SHARING IN ANY
RECOVERY FOR PERSONAL INJURY OR DEATH BY GIFT, ASSIGNMENT OR
OTHERIWSE," ALTERED THE WORDING OF THE REMAINING PROVISIONS IN MINOR
RESPECTS, AND UPHELD THE MODIFIED DECREE AS CONSISTENT WITH THIS
COURT'S MANDATE.  207 VA. 182, 149 S.E.2D 265 (1966).  THE BROTHERHOOD
DID NOT SEEK REVIEW OF THIS DECISION, AND IT BECAME FINAL IN DUE
COURSE. 

        II 

GIVEN THIS BACKGROUND, WITH WHICH COUNSEL BELOW AND THE TRIAL JUDGE
WERE GENERALLY FAMILIAR, THE PROCEEDINGS NOW UNDER REVIEW APPEAR IN A
SUBSTANTIALLY DIFFERENT POSTURE.  THE STATE BAR'S COMPLAINT CHARGED
UNLAWFUL SOLICITATION OF BUSINESS.  THE BROTHERHOOD'S ANSWER, AFTER
ADMITTING THE CHARGES IN SOME RESPECTS AND DENYING THEM IN OTHERS, SET
UP THE ILLINOIS SUPREME COURT OPINION AS AN AFFIRMATIVE DEFENSE, NOTING
THAT THE MICHIGAN STATE BAR HAD BEEN AWARE OF THAT PROCEEDING AND HAD
ASSISTED IN IT, ALTHOUGH IT WAS NOT FORMALLY A PARTY.  THE ANSWER
OBSERVED THAT THE ILLINOIS COURT HAD DECLARED CERTAIN FEATURES OF THE
BROTHERHOOD'S ACTIVITIES LAWFUL AND OTHER FEATURES UNLAWFUL AND
DIRECTED THE DISCONTINUANCE OF THE LATTER.  THE ANSWER THEN AVERRED
THAT AFTER THE FILING OF THE MICHIGAN COMPLAINT THE BROTHERHOOD HAD
BROUGHT ITSELF INTO COMPLIANCE WITH THE ILLINOIS OPINION.  THE ANSWER
QUOTED THE ABOVE-MENTIONED LETTER FROM THE BROTHERHOOD'S PRESIDENT AS
PROOF.  ON THIS BASIS, THE BROTHERHOOD CONTENDED THAT THE CONDUCT
COMPLAINED OF EITHER WAS PERMISSIBLE OR HAD TERMINATED, SO THAT THE
BILL SHOULD BE DISMISSED FOR WANT OF EQUITY AND FOR MOOTNESS.  APP. 15
17. 

IN ITS REPLY THE STATE BAR SPECIFICALLY RELIED ON THE BROTHERHOOD'S
ADMISSIONS IN THE ILLINOIS PROCEEDINGS AND THE FINDINGS OF THE ILLINOIS
COURT AS WORKING AN ESTOPPEL OF THE DEFENDANTS WITH RESPECT TO AT LEAST
SOME OF THE MATTERS THERE IN ISSUE.  APP. 20-24.  /7/ HOWEVER, THE
REPLY LEAVES UNCLEAR JUST WHAT THE BAR CONSIDERED TO BE INVOLVED IN THE
MICHIGAN LAWSUIT.  IT DESCRIBED THE MICHIGAN BAR'S CAUSE OF ACTION AS
BOTH BROADER AND NARROWER THAN THE ILLINOIS LAWSUIT.  APP. 23-24.  THE
NEXT PLEADING FILED, A "STATEMENT OF CLAIM," DID LITTLE TO CLARIFY
MATTERS.  IT REFERRED ONLY TO THE BROTHERHOOD'S SCHEME OF SOLICITATION
OF LEGAL BUSINESS, BUT INCLUDED ALLEGATIONS THAT AS PART OF THE SCHEME
REGIONAL COUNSEL MADE PAYMENTS TO THE BROTHERHOOD AND TO REGIONAL
INVESTIGATORS AND ALSO CONTRIBUTED TO THE FINANCIAL SUPPORT OF CLIENTS
DURING THE PENDENCY OF LITIGATION.  APP. 29. 

THE TRIAL JUDGE APPARENTLY SOUGHT TO CLEAR UP THE CONFUSION AS TO
JUST WHAT WAS IN ISSUE BY INCLUDING IN THE PRETRIAL SUMMARY A PROVISION
THAT "(IN THE EVENT THERE IS NOT A CONSENT DECREE, DEFENDANTS HAVE BEEN
REQUESTED TO ADVISE WHAT ISSUE IN MICHIGAN IS DIFFERENT THAN IN THE
OTHER STATES WHERE CONSENT DECREES HAVE ENTERED."  APP. 30.  THERE IS
NOTHING IN THE RECORD TO INDICATE THAT THE DEFENDANTS RESPONDED TO THIS
REQUEST IN A WAY DESIGNED TO LIMIT THE ISSUES TO SOLICITATION. 

AFTER THE INITIAL HEARING IN THIS CASE THE TRIAL JUDGE ENTERED A
DECREE THAT INTER ALIA PROHIBITED THE BROTHERHOOD FROM "(ENGAGING IN
ANY ACTIVITY, CONDUCT OR ENDEAVOR CONDEMNED BY THE SUPREME COURT OF
ILLINOIS IN IN RE BROTHERHOOD OF RAILROAD TRAINMEN."  APP. 117.  IN
THIS CONNECTION HE OBSERVED THAT "ALTHOUGH CERTAIN SPECIFIC ACTIVITIES
AND CONDUCT AS CONTAINED IN THE ILLINOIS DECISION WERE NOT SPECIFICALLY
PLEADED IN THE INSTANT SUIT, NEVERTHELESS, BY THE DEFENDANTS' ANSWER,
THEY HAVE BEEN INDIRECTLY INJECTED INTO THIS LITIGATION AND SHOULD BE
COVERED BY THE COURT'S ORDER."  APP. 112.  INASMUCH AS THE ACTIVITIES
REFERRED TO, SEE SUPRA, AT 587-589, WERE DIRECTLY RELATED TO THE
SOLICITATION CHARGED IN THE STATE BAR'S COMPLAINT, I CONSIDER THIS
DECISION BY THE JUDGE TO BE ENTIRELY JUSTIFIABLE.     WHILE IT IS
UNFORTUNATE THAT THE RECORD IS AS STALE AS IT IS, THERE IS AMPLE
EVIDENCE TO INDICATE THAT THE BROTHERHOOD'S CONDUCT, AT LEAST AS OF THE
TIME THE BILL OF COMPLAINT WAS FILED, WAS OF SUCH A CHARACTER AS TO
CALL FOR THE DECREE BEFORE US. THE BROTHERHOOD, DESPITE ITS REPEATED
ALLEGATIONS THAT THE OBJECTIONABLE FEATURES OF THIS CONDUCT CEASED IN
APRIL 1959, FAILED TO INTRODUCE ANY PROOF TO THAT EFFECT DURING THE
EVIDENTIARY HEARING IN 1961.  IN THE 1965 AND 1968 PROCEEDINGS ON
REMAND FROM THE MICHIGAN SUPREME COURT, THE BROTHERHOOD DID NOT REQUEST
A REOPENING OF THE RECORD, OR EVEN ASSERT THAT THERE HAD BEEN ANY
SIGNIFICANT CHANGE IN FACTUAL CIRCUMSTANCES SINCE THE ORIGINAL
PROCEEDINGS.  MOREOVER, MICHIGAN LAW PROVIDES FOR MODIFICATION OF A
CONTINUING INJUNCTION UPON A PROPER SHOWING OF CHANGED CIRCUMSTANCES. 
SEE FIRST PROTESTANT REFORMED CHURCH V. DEWOLF, 358 MICH. 489, 495, 100
N.W.2D 254, 257 (1960) (DICTUM), CITING UNITED STATES V. SWIFT & CO.,
286 U.S. 106, 114 (1932).  WITH MATTERS IN THIS POSTURE, I AM CONTENT
TO PASS ON THE VALIDITY OF THE DECREE DESPITE THE STATE OF THE RECORD. 

        III 

I AGREE THAT, IN LIGHT OF THIS COURT'S RECENT DECISIONS, ONE PORTION
OF THE MICHIGAN DECREE-- THAT PROHIBITING THE UNION FROM CONTROLLING
THE FEES CHARGED BY ATTORNEYS-- CANNOT STAND.  IN UNITED MINE WORKERS
V. ILLINOIS BAR ASSN., 389 U.S. 217 (1967), THE COURT HELD THAT AS A
MATTER OF FEDERAL CONSTITUTUIONAL LAW A LABOR UNION IS ENTITLED TO
ENGAGE AN ATTORNEY TO REPRESENT ITS MEMBERS IN MATTERS OF COLLECTIVE
INTEREST, FREE OF DIRECT FINANCIAL CHARGE TO THEM.  WHILE I BELIEVED
THEN AND STILL BELIEVE THAT THIS WAS AN UNSOUND PIECE OF CONSTITUTIONAL
ADJUDICATION, I AM UNABLE TO DISTINGUISH THE FACTS OF MINE WORKERS FROM
THOSE IN THE CASE AT BAR, WHERE A UNION AGREED WITH ATTORNEYS AS TO THE
MAXIMUM FEE TO BE CHARGED ITS MEMBERS IN MATTERS OF COLLECTIVE
INTEREST.  DESPITE THE BROTHERHOOD'S PRIOR ACQUIESCENCE IN THE DECREES
IN VIRGINIA AND OTHER STATES, I FIND THE UNFORESEEABLE CHANGE IN THE
LAW WROUGHT BY THE MINE WORKERS DECISION SUFFICIENT TO JUSTIFY
RELIEVING IT FROM THE CONSEQUENCES OF TAKING THAT POSITION.  SEE
RESTATEMENT OF JUDGMENTS SEC. 70 (1942); 1B J. MOORE, FEDERAL PRACTICE
PARA. 0.448 (1965).  I THEREFORE CONCUR IN THE COURT'S VACATING THIS
PORTION OF THE MICHIGAN DECREE.  IN ALL OTHER RESPECTS I THINK THE
DECREE IS CONSISTENT WITH OUR PAST DECISIONS AND OTHERWISE VALID. 

THE FIRST PORITION OF THAT DECREE PROHIBITS THE BROTHERHOOD FROM
"GIVING OR FURNISHING LEGAL ADVICE TO ITS MEMBERS OR THEIR FAMILIES." 
I DO NOT UNDERSTAND THAT THE COURT'S "COMMONSENSE" APPROACH TO THE
FIRST AMENDMENT EXTENDS TO THE POINT THAT LAYMEN ARE CONSTITUTIONALLY
ENTITLED TO GIVE LEGAL ADVICE TO OTHER LAYMEN.  I THINK IT PLAIN THAT
THE PROVISION WAS INTENDED TO PROHIBIT ONLY SUCH CONDUCT.  IT IS
MANIFESTLY BASED ON THE VIRGINIA DECREE, WHERE THE CORRESPONDING
PROVISION WAS SUPPORTED BY THE CHANCELLOR'S FINDING THAT "(IN
FURTHERANCE OF THE PLAN THE DEFENDANT BROTHERHOOD HAS ADVISED, AND
CONTINUES TO ADVISE, ITS MEMBERS AND THE FAMILIES OF DECEASED MEMBERS
WITH RESPECT TO THE LEGAL ASPECTS OF THEIR CLAIMS."  207 VA.,AT 183 N.
1, 149 S.E.2D, AT 266 N. 1.  THE PROVISION IS ALSO RELATED TO THE
PROHIBITION IN THE 1962 MICHIGAN DECREE AGAINST "(TELLING ANY PERSON OR
HIS REPRESENTATIVES THAT SAID PERSON HAS A CAUSE OF ACTION, THE AMOUNT
HE IS ENTITLED TO RECOVER, WHERE SUIT SHOULD BE FILED, OR DOING ANY
OTHER ACT OR THING WHICH CONSTITUTES THE PRACTICE OF LAW WITHIN THE
STATE OF MICHIGAN."  APP. 117.  I THEREFORE CAN ONLY CONSIDER FANCIFUL
THE COURT'S SUGGESTION THAT THE "PLAIN MEANING" OF THIS PROHIBITION
"WOULD EMPHATICALLY DENY THE RIGHT OF THE UNION TO EMPLOY COUNSEL TO
REPRESENT ITS MEMBERS."  ANTE, AT 581.  IN ANY EVENT, IF THERE IS ANY
AMBIGUITY IN THE DECREE THE APPROPRIATE COURSE IS TO CLARIFY IT, NOT TO
STRIKE IT DOWN. 

THE SECOND PROVISION OF THE DECREE, PROHIBITING THE BROTHERHOOD FROM
FURNISHING ATTORNEYS WITH INFORMATION ABOUT ACCIDENTS AND THE NAMES AND
ADDRESSES OF INJURED WORKERS, ORDERS IT TO REFRAIN FROM CONDUCT THAT IT
AVERRED BUT DID NOT PROVE HAD BEEN TERMINATED.  NOTHING IN OUR PRIOR
DECISIONS APPROVES THE SOLICITATION OF BUSINESS BY LAWYERS EXCEPT
INSOFAR AS THE SOLICITATION MAY BE BE CORRELATIVE TO THE RIGHTS OF THE
CLIENTS.  SEE BROTHERHOOD OF RAILROAD TRAINMEN V. VIRGINIA EX REL.
VIRGINIA STATE BAR, 377 U.S.,AT 8.  THERE IS NO REASON IN TERMS OF
FIRST AMENDMENT INTERESTS WHY THE BROTHERHOOD SHOULD NOT BE OBLIGED TO
GIVE THE RESULTS OF ITS INVESTIGATIONS TO THE INJURED PERSON TO TAKE TO
WHATEVER LAWYER HE CHOOSES RATHER THAN FOR THE BROTHERHOOD TO GIVE IT
TO THE LAWYER IT PREFERS.  THE PROVISION IS PLAINLY APPROPRIATE AS A
MEANS OF ENSURING THAT THE INJURED WORKMAN HAS A TRULY FREE CHOICE.  IN
EFFECT THIS PROVISION OF THE DECREE IS DESIGNED TO FEND AGAINST
"AMBULANCE CHASING," AN ACTIVITY THAT I CAN HARDLY SUPPOSE THE COURT
THINKS IS PROTECTED BY THE FIRST AMENDMENT. 

ANOTHER PROVISION OF THE DECREE PROHIBITS THE BROTHERHOOD AND ITS
MEMBERS FROM "STATING OR SUGGESTING THAT A RECOMMENDED LAWYER WILL
DEFRAY EXPENSES OF ANY KIND OR MAKE ADVANCES FOR ANY PURPOSE TO SUCH
INJURED PERSONS OR THEIR FAMILIES PENDING SETTLEMENT OF THEIR CLAIM." 
I THINK IT A CLOSE QUESTION WHETHER THE CONDUCT THUS PROSCRIBED IS
PROTECTED UNDER THIS COURT'S OPINION IN BROTHERHOOD OF RAILROAD
TRAINMEN V. VIRGINIA EX REL. VIRGINIA STATE BAR, SUPRA.  AS PETITIONER
ADMITS, WHILE IT IS NOT GENERALLY IMPROPER FOR AN ATTORNEY TO MAKE
ADVANCES TO CLIENTS, IT IS CONSIDERED IMPROPER FOR HIM TO USE THE FACT
THAT HE MAKES THEM AS A DRAWING CARD IN AN EFFORT TO SECURE
PROFESSIONAL EMPLOYMENT.  AT THE SAME TIME, THERE IS NO CONTENTION MADE
THAT THE REPRESENTATION THUS PROSCRIBED IS INACCURATE, AND
MISAPPREHENSION ON THIS SCORE MAY WELL BE THE DETERMINATIVE FACTOR IN
AN INJURED MAN'S DECISION NOT TO SEEK LEGAL ADVICE IN CONNECTION WITH
HIS CLAIM.  ON BALANCE, I CONCLUDE THAT THE EQUITIES DO NOT CALL FOR
RELIEVING PETITIONER OF ITS CONSIDERED DECISION TO ACQUIESCE IN THIS
PORTION OF THE VIRGINIA DECREE AND THE CORRESPONDING PORTIONS OF
CONSENT DECREES ENTERED IN OTHER STATES. 

THE REMAINING PROVISIONS OF THE DECREE PROHIBIT THE BROTHERHOOD FROM
SHARING IN LEGAL FEES OR RECOVERIES, AND PROHIBIT THE MEMBERS FROM
ACCEPTING COMPENSATION FOR SOLICITATION OF BUSINESS FOR A LAWYER. 
THESE PROVISIONS ARE ENTIRELY APPROPRIATE TO REMOVE ANY TEMPTATION FOR
THE REPRESENTATIVES OF THE BROTHERHOOD TO OVERBEAR THE INJURED MAN'S
CHOICE OF LEGAL REPRESENTATION.  THEY PROHIBIT CONDUCT WHICH HAS LONG
BEEN CONSIDERED UNETHICAL, AND WHICH IN NO SIGNIFICANT WAY ADVANCES THE
INTERESTS THAT THE COURT'S PRIOR DECISIONS IN THIS FIELD SOUGHT TO
PROTECT.  I SEE NO BASIS WHATEVER FOR STRIKING DOWN THESE PROVISIONS OF
THE DECREE.  /8/ 

FOR THESE REASONS I WOULD SUSTAIN THE JUDGMENT OF THE MICHIGAN
SUPREME COURT, WITH THE EXCEPTION ALREADY NOTED FOR THE PROHIBITION ON
CONTROLLING THE FEES CHARGED BY ANY LAWYER.  HOWEVER, IT IS APPROPRIATE
FOR ME TO MAKE A FEW GENERAL REMAKRS IN CLOSING.  I SHARE MY BROTHERS'
CONCERN WITH THE PROBLEMS OF PROVIDING MEANINGFUL ACCESS TO COMPETENT
LEGAL ADVICE FOR PERSONS IN THE MIDDLE AND LOWER ECONOMIC STRATA OF OUR
SOCIETY.  THIS IS A MATTER OF PUBLIC CONCERN DESERVING OUR BEST EFFORTS
AT RESOLUTION, A TASK THAT THE ORGANIZED BAR MAY BE THOUGHT TO HAVE
BEEN TOO SLOW IN RECOGNIZING.  NOR DO I CONDONE, ANY MORE THAN MY
BRETHERN, THE NEFARIOUS PRACTICES THAT CALLED FORTH THE BROTHERHOOD'S
PLAN BEFORE US TODAY. 

BUT THE ISSUE PRESENTED FOR DECISION IS NOT THE DESIRABILITY OF
GROUP LEGAL SERVICES, OR THE WAYS IN WHICH THE TRADITIONAL CONCEPTS OF
PROFESSIONAL ETHICS SHOULD BE MODIFIED TO TAKE ACCOUNT OF THE CHANGES
IN SOCIAL STRUCTURE AND SOCIAL NEEDS SINCE THE 19TH CENTURY.  THE
ISSUE, RATHER, IS THE SCOPE LEFT BY THE FEDERAL CONSTITUTION FOR STATE
ACTION IN THE REGULATION OF THE PRACTICE OF LAW.  DESPITE THE FIRST
AMENDMENT IMPLICATIONS OF DENIAL OF ACCESS TO THE COURTS IN OTHER
SITUATIONS, SEE NAACP V. BUTTON, 371 U.S. 415, 452-455 (1963)
(DISSENTING OPINION), ALL THAT IS INVOLVED HERE IS A COMBINATION OF
PURCHASERS OF SERVICES SEEKING TO INCREASE THEIR MARKET POWER.  THE
RELATIONSHIP TO FIRST AMENDMENT INTERESTS SEEMS TO ME REMOTE AT BEST. 
CF. ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 19-20 (1945). 
RECOGNIZING THAT A MAJORITY OF MY BRETHREN FELT OTHERWISE IN
BROTHERHOOD OF RAILROAD TRAINMEN V. VIRGINIA EX REL. VIRGINIA STATE
BAR, 377 U.S. 1 (1964), AND UNITED MINE WORKERS V. ILLINOIS BAR ASSN.,
389 U.S. 217 (1967), I ACCEPT THEIR CONCLUSION.  I WOULD NOT, HOWEVER,
EXTEND THOSE CASES FURTHER THAN IS REQUIRED BY THEIR LOGIC. 
ACCORDINGLY, WITH THE ONE EXCEPTION NOTED, I WOULD AFFIRM THE JUDGMENT
BELOW. 

/1/  THE CHICAGO REGIONAL COUNSEL HAD JURISDICTION OVER THE LOWER
PENINSULA OF MICHIGAN, WHERE THIS LAWSUIT WAS BROUGHT.  APP. 14. 

/2/  STATE EX REL. BECK V. LUSH, 170 NEB. 376, 103 N.W.2D 136
(1960). 

/3/  HULSE V. BROTHERHOOD OF RAILROAD TRAINMEN, 340 S.W.2D 404 (MO.
1960). 

/4/  INITIALLY IT APPEARED THAT A CONSENT DEGREE MIGHT BE ENTERED IN
THE MICHIGAN PROCEEDINGS, BUT THIS POSSIBILITY NEVER EVENTUATED.  APP.
30-31. 

/5/  SEE THE TESTIMONY OF PETITIONER'S PRESIDENT DURING PRETRIAL
PROCEEDINGS IN THE VIRGINIA CASE THAT "(IF WE THOUGHT FOR A MOMENT"
THAT A CONSENT DECREE ALONG THE LINES OF THE ILLINOIS OPINION WOULD BE
ACCEPTABLE "WE WOULD MAKE IT EFFECTIVE TOMORROW."  APP. 91, BROTHERHOOD
OF RAILROAD TRAINMEN V. VIRGINIA EX REL. VIRGINIA STATE BAR, 377 U.S. 1
(1964). 

/6/  THE COURT ACKNOWLEDGED THIS LIMITATION ON THE BROTHERHOOD'S
CONTENTIONS: 

"CERTAIN OTHER PROVISIONS OF THE DECREE ENJOIN THE BROTHERHOOD FROM
SHARING COUNSEL FEES WITH LAWYERS WHOM IT RECOMMENDED AND FROM
COUNTENANCING THE SHARING OF FEES BY ITS REGIONAL INVESTIGATORS.  THE
BROTHERHOOD DENIES THAT IT HAS ENGAGED IN SUCH PRACTICES SINCE 1959, IN
COMPLIANCE WITH A DECREE OF THE SUPREME COURT OF ILLINOIS.  SEE IN RE
BROTHERHOOD OF RAILROAD TRAINMEN, 13 ILL.2D 391, 150 N.E.2D 163.  SINCE
THE BROTHERHOOD IS NOT OBJECTING TO THE OTHER PROVISIONS OF THE DECREE
EXCEPT INSOFAR AS THEY MIGHT LATER BE CONSTRUED AS BARRING THE
BROTHERHOOD FROM HELPING INJURED WORKERS OR THEIR FAMILIES BY
RECOMMENDING THAT THEY NOT SETTLE WITHOUT A LAWYER AND BY RECOMMENDING
CERTAIN LAWYERS SELECTED BY THE BROTHERHOOD, IT IS ONLY TO THAT EXTENT
THAT WE PASS UPON THE VALIDITY OF THE OTHER PROVISIONS."  377 U.S.,AT 5
N. 9. 

/7/  THE REPLY ALSO REFERRED IN PASSING TO ACTIONS IN COURTS OF
OTHER STATES WHERE THE BROTHERHOOD HAS BEEN CONDEMNED FOR ENGAGING IN
"THE SAME OR SIMILAR PRACTICES AS THOSE AT ISSUE IN THIS CAUSE."  APP.
24. 

/8/  THE BROTHERHOOD EXPLICITLY ADMITTED IN ITS ANSWER THAT ITS
MEMBERS HAD IN THE PAST RECEIVED COMPENSATION FROM REGIONAL COUNSEL FOR
SERVICES IN FURNISHING CLIENTS, APP. 17, AND THE OPINION OF THE
ILLINOIS SUPREME COURT, ON WHICH THE BROTHERHOOD RELIED, DETAILED THE
MANNER IN WHICH REGIONAL COUNSEL WERE REQUIRED TO SUPPORT THE
BROTHERHOOD'S LEGAL AID DEPARTMENT.  SEE SUPRA, AT 587.  THIS SCHEME
WAS THE END PRODUCT OF AN EVOLUTION FROM MORE DIRECT FORMS OF FEE
SPLITTING, A PROCESS DESCRIBED IN HULSE V. BROTHERHOOD OF RAILROAD
TRAINMEN, 340 S.W.2D 404, 408-409 (MO. 1960).  THE COURT BELOW, HAVING
FOUND THE EVIL IN A MATURED FORM, WAS ENTITLED TO PROSCRIBE AS WELL THE
STRAIGHTFORWARD MANIFESTATION IN WHICH IT HAD BEGUN.  MOREOVER, IT IS
WELL SETTLED THAT A COURT OF EQUITY, LIKE AN ADMINISTRATIVE AGENCY,
"CANNOT BE REQUIRED TO CONFINE ITS ROAD BLOCK TO THE NARROW LANE THE
TRANSGRESSOR HAS TRAVELED; IT MUST BE ALLOWED EFFECTIVELY TO CLOSE ALL
ROADS TO THE PROHIBITED GOAL, SO THAT ITS ORDER MAY NOT BE BY-PASSED
WITH IMPUNITY."  FTC V. RUBEROID CO., 343 U.S. 470, 473 (9152)
(FOOTNOTE OMITTED).  SEE, E.G., LOCAL 167 V. UNITED STATES, 291 U.S.
293 (1934); ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436 (1940);
UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319 (1947). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACKMUN JOINS, CONCURRING
IN PART AND DISSENTING IN PART. 

THE FIRST PROVISION IN THE DECREE PROHIBITING THE UNION FROM GIVING
OR FURNISHING LEGAL ADVICE TO ITS MEMBERS OR THEIR FAMILIES IS
OVERBROAD IN LIGHT OF UNITED MINE WORKERS V. ILLINOIS BAR ASSN., 389
U.S. 217 (1967), AND SHOULD BE NARROWED TO PROHIBIT ONLY LEGAL ADVICE
BY NONLAWYERS.  ALSO, I AGREE WITH THE COURT THAT THE PORTION OF THE
DECREE FORBIDDING THE SETTING OF FEES BY UNION-LAWYER AGREEMENT CANNOT
STAND.  OTHERWISE, HOWEVER, I DO NOT READ THE DECREE AS BEING
INCONSISTENT WITH OUR PRIOR CASES AND I WOULD NOT NOW EXTEND THEM TO
SET ASIDE THIS DECREE IN ITS ENTIRETY. 

JOHN J. NAUGHTON ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

A. D. RUEGSEGGER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE PHILLIP C. KELLY AND LOUIS ROSENZWEIG. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING REVERSAL. 
..END :











UNITED STATES V. FREED, 401 U.S. 601 


       UNITED STATES V. FREED ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

   DISTRICT OF CALIFORNIA

        NO. 345.  ARGUED JANUARY 11, 1971-- DECIDED APRIL 5, 1971 


IN HAYNES V. UNITED STATES, 390 U.S. 85, THE COURT HELD INVALID UNDER
THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT PROVISIONS OF THE
NATIONAL FIREARMS ACT, WHICH CONSTITUTED PARTS OF AN INTERRELATED
STATUTORY SCHEME FOR TAXING CERTAIN CLASSES OF FIREARMS PRIMARILY USED
FOR UNLAWFUL PURPOSES, AND MADE THE POTENTIALLY INCRIMINATING
INFORMATION AVAILABLE TO STATE AND OTHER OFFICIALS.  TO ELIMINATE THE
DEFECTS REVEALED BY HAYNES, CONGRESS AMENDED THE ACT SO THAT ONLY A
POSSESSOR WHO LAWFULLY MAKES, MANUFACTURES, OR IMPORTS FIREARMS CAN AND
MUST REGISTER THEM.  THE TRANSFEROR MUST IDENTIFY HIMSELF, DESCRIBE THE
FIREARM, AND GIVE THE NAME AND ADDRESS OF THE TRANSFEREE, WHOSE
APPLICATION MUST BE SUPPORTED BY FINGERPRINTS AND A PHOTOGRAPH AND A
LAW ENFORCEMENT OFFICIAL'S CERTIFICATE IDENTIFYING THEM AS THOSE OF THE
TRANSFEREE AND STATING THAT THE WEAPON IS INTENDED FOR LAWFUL USES. 
ONLY AFTER THE TRANSFEROR'S RECEIPT OF THE APPROVED APPLICATION FORM
MAY THE FIREARM TRANSFER BE LEGALLY MADE.  A TRANSFEREE DOES NOT AND
CANNOT REGISTER THOUGH POSSESSION OF AN UNREGISTERED FIREARM IS
ILLEGAL.  NO INFORMATION OR EVIDENCE FURNISHED UNDER THE ACT CAN BE
USED AS EVIDENCE AGAINST A REGISTRANT OR APPLICANT "IN A CRIMINAL
PROCEEDING WITH RESPECT TO A VIOLATION OF LAW OCCURRING PRIOR TO OR
CONCURRENTLY WITH THE FILING OF THE APPLICATION OR REGISTRATION, OR THE
COMPILING OF THE RECORDS CONTAINING THE INFORMATION OR EVIDENCE," AND
NO INFORMATION FILED, IS AS A MATTER OF ADMINISTRATION, DISCLOSED TO
OTHER FEDERAL LOCAL, OR STATE AGENCIES.  APPELLEES, WHO HAD BEEN
INDICTED UNDER THE AMENDED ACT FOR POSSESSING AND CONSPIRING TO POSSESS
UNREGISTERED HAND GRENADES, FILED MOTIONS TO DISMISS, WHICH THE
DISTRICT COURT GRANTED ON THE GROUND THAT THE AMENDED ACT, LIKE ITS
PREDECESSOR, COMPELS SELF-INCRIMINATION AND THAT THE INDICTMENT
CONTRAVENES DUE PROCESS REQUIREMENTS BY FAILING TO ALLEGE SCIENTER. 
APPELLEES ALSO CONTEND THAT THE PROVISIONS RELATING TO FINGERPRINTS AND
PHOTOGRAPHS WILL CAUSE FUTURE INCRIMINATION.  HELD: 

1.  THE REVISED STATUTORY SCHEME OF THE AMENDED ACT, WHICH
SIGNIFICANTLY ALTERS THE SCHEME PRESENTED IN HAYNES, DOES NOT INVOLVE
ANY VIOLATION OF THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT. 
PP. 605-607. 

2. THE AMENDED ACT FULLY PROTECTS A PERSON AGAINST INCRIMINATION FOR
PAST OR PRESENT VIOLATIONS, AND CREATES NO SUBSTANTIAL HAZARDS OF
FUTURE INCRIMINATION.  P. 606. 

3.  THE AMENDED ACT'S PROHIBITION AGAINST A PERSON'S "RECEIVING) OR
POSSESSING) A FIREARM WHICH IS NOT REGISTERED TO HIM," REQUIRES NO
SPECIFIC INTENT AND THE ABSENCE OF SUCH A REQUIREMENT IN THIS
ESSENTIALLY REGULATORY STATUTE IN THE AREA OF PUBLIC SAFETY DOES NOT
VIOLATE DUE PROCESS REQUIREMENTS EITHER AS RESPECTS THE SUBSTANTIVE
COUNT OR THE CONSPIRACY COUNT.  PP. 607-610. 

REVERSED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, HARLAN, BRENNAN (AS TO PART I), STEWART, WHITE,
MARSHALL, AND BLACKMUN, JJ., JOINED.  BRENNAN, J., FILED AN OPINION
CONCURRING IN THE JUDGMENT, POST, P. 610. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

FOLLOWING OUR DECISION IN HAYNES V. UNITED STATES, 390 U.S. 85,
CONGRESS REVISED THE NATIONAL FIREARMS ACT WITH THE VIEW OF ELIMINATING
THE DEFECTS IN IT WHICH WERE REVEALED IN HAYNES.  /1/ 

AT THE TIME OF HAYNES "ONLY WEAPONS USED PRINCIPALLY BY PERSONS
ENGAGED IN UNLAWFUL ACTIVITIES WOULD BE SUBJECTED TO TAXATION."  ID.,
AT 87.  UNDER THE ACT, AS AMENDED, ALL POSSESSORS OF FIREARMS AS
DEFINED IN THE ACT /2/  ARE COVERED, EXCEPT THE FEDERAL GOVERNMENT.  26
U.S.C. 5841 (1964 ED., SUPP. V). 

AT THE TIME OF HAYNES ANY POSSESSOR OF A WEAPON INCLUDED IN THE ACT
WAS COMPELLED TO DISCLOSE THE FACT OF HIS POSSESSION BY REGISTRATION AT
ANY TIME HE HAD ACQUIRED POSSESSION, A PROVISION WHICH WE HELD MEANT
THAT A POSSESSOR MUST FURNISH POTENTIALLY INCRIMINATING INFORMATION
WHICH THE FEDERAL GOVERNMENT MADE AVAILABLE TO STATE, LOCAL, AND OTHER
FEDERAL OFFICIALS.  ID., AT 95-100.  UNDER THE PRESENT ACT /3/  ONLY
POSSESSORS WHO LAWFULLY MAKE, MANUFACTURE, OR IMPORT FIREARMS CAN AND
MUST REGISTER THEM; THE TRANSFEREE DOES NOT AND CANNOT REGISTER.  IT
IS, HOWEVER, UNLAWFUL FOR ANY PERSON "TO RECEIVE OR POSSESS A FIREARM
WHICH IS NOT REGISTERED TO HIM IN THE NATIONAL FIREARMS REGISTRATION
AND TRANSFER RECORD."  /4/ 

AT THE TIME OF HAYNES, AS ALREADY NOTED, THERE WAS A PROVISION FOR
SHARING THE REGISTRATION AND TRANSFER INFORMATION WITH OTHER LAW
ENFORCEMENT OFFICIALS.  ID., AT 97-100.  THE REVISED STATUTE EXPLICITLY
STATES THAT NO INFORMATION OR EVIDENCE PROVIDED IN COMPLIANCE WITH THE
REGISTRATION OR TRANSFER PROVISIONS OF THE ACT CAN BE USED, DIRECTLY OR
INDIRECTLY, AS EVIDENCE AGAINST THE REGISTRANT OR APPLICANT "IN A
CRIMINAL PROCEEDING WITH RESPECT TO A VIOLATION OF LAW OCCURRING TO OR
CONCURRENTLY WITH THE FILING OF THE APPLICATION OR REGISTRATION, OR THE
COMPILING OF THE RECORDS CONTAINING THE INFORMATION OR EVIDENCE."  /5/
THE SCOPE OF THE PRIVILEGE EXTENDS, OF COURSE, TO THE HAZARDS OF
PROSECUTION UNDER STATE LAW FOR THE SAME OR SIMILAR OFFENSES.  SEE
MALLOY V. HOGAN, 378 U.S. 1; MARCHETTI V. UNITED STATES, 390 U.S. 39,
54.  AND THE APPELLEES, APPARENTLY FEARFUL THAT THE ACT AS WRITTEN DOES
NOT UNDERTAKE TO BAR THE USE OF FEDERAL FILINGS IN STATE PROSECUTIONS,
URGE THAT THOSE RISKS ARE REAL IN THIS CASE.  IT IS SAID THAT
CALIFORNIA STATUTES /6/  PUNISH THE POSSESSION OF GRENADES AND THAT
FEDERAL REGISTRATION WILL INCRIMINATE APPELLEES UNDER THAT LAW. 

THE SOLICITOR GENERAL, HOWEVER, REPRESENTS TO US THAT NO INFORMATION
FILED IS AS A MATTER OF PRACTICE DISCLOSED TO ANY LAW ENFORCEMENT
AUTHORITY EXCEPT AS THE FACT OF NONREGISTRATION MAY BE NECESSARY TO AN
INVESTIGATION OR PROSECUTION UNDER THE PRESENT ACT. 

THE DISTRICT COURT NONETHELESS GRANTED THE MOTION TO DISMISS ON TWO
GROUNDS:  (1) THE AMENDED ACT, LIKE THE VERSION IN HAYNES, VIOLATES THE
SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT; AND (2) THE
CONSPIRACY "TO POSSESS DESTRUCTIVE DEVICES" AND THE POSSESSION CHARGED
DO NOT ALLEGE THE ELEMENT OF SCIENTER.  THE CASE IS HERE ON DIRECT
APPEAL.  18 U.S.C. 3731.  AND SEE UNITED STATES V. SPECTOR, 343 U.S.
169; UNITED STATES V. NARDELLO, 393 U.S. 286. 

        I 

WE CONCLUDE THAT THE AMENDED ACT DOES NOT VIOLATE THE SELF
INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT WHICH PROVIDES THAT NO
PERSON "SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF."  AS NOTED, A LAWFUL TRANSFER OF A FIREARM MAY BE ACCOMPLISHED
ONLY IF IT IS ALREADY REGISTERED.  THE TRANSFEROR-- NOT THE TRANSFEREE-
DOES THE REGISTERING.  THE TRANSFEROR PAYS THE TRANSFER TAX AND
RECEIVES A STAMP /7/  DENOTING PAYMENT WHICH HE AFFIXES TO THE
APPLICATION SUBMITTED TO THE INTERNAL REVENUE SERVICE.  THE TRANSFEROR
MUST IDENTIFY HIMSELF, DESCRIBE THE FIREARM TO BE TRANSFERRED, AND THE
NAME AND ADDRESS OF THE TRANSFEREE.  IN ADDITION, THE APPLICATION MUST
BE SUPPORTED BY THE PHOTOGRAPH AND FINGERPRINTS OF THE TRANSFEREE AND
BY A CERTIFICATE OF A LOCAL OR FEDERAL LAW ENFORCEMENT OFFICIAL THAT HE
IS SATISFIED THAT THE PHOTOGRAPH AND FINGERPRINTS ARE THOSE OF THE
TRANSFEREE AND THAT THE WEAPON IS INTENDED FOR LAWFUL USES.  /8/  ONLY
AFTER RECEIPT OF THE APPROVED APPLICATION FORM IS IT LAWFUL FOR THE
TRANSFEROR TO HAND THE FIREARM OVER TO THE TRANSFEREE.  AT THAT TIME HE
IS TO GIVE THE APPROVED APPLICATION TO THE TRANSFEREE.  /9/  AS NOTED,
THE SOLICITOR GENERAL ADVISES US THAT THE INFORMATION IN THE HANDS OF
INTERNAL REVENUE SERVICE, AS A MATTER OF PRACTICE, IS NOT AVAILABLE TO
STATE OR OTHER FEDERAL AUTHORITIES AND, AS A MATTER OF LAW, CANNOT BE
USED AS EVIDENCE IN A CRIMINAL PROCEEDING WITH RESPECT TO A PRIOR OR
CONCURRENT VIOLATION OF LAW.  /10/ 

THE TRANSFEROR-- NOT THE TRANSFEREE-- MAKES ANY INCRIMINATING &
STATEMENTS.  TRUE, THE TRANSFEREE, IF HE WANTS THE FIREARM, MUST
COOPERATE TO THE EXTENT OF SUPPLYING FINGERPRINTS AND PHOTOGRAPH.  BUT
THE INFORMATION HE SUPPLIES MAKES HIM THE LAWFUL, NOT THE UNLAWFUL,
POSSESSOR OF THE FIREARM.  INDEED, THE ONLY TRANSFEREES WHO MAY
LAWFULLY RECEIVE A FIREARM ARE THOSE WHO HAVE NOT COMMITTED CRIMES IN
THE PAST.  THE ARGUMENT, HOWEVER, IS THAT FURNISHING THE PHOTOGRAPH AND
FINGERPRINTS WILL INCRIMINATE THE TRANSFEREE IN THE FUTURE.  BUT THE
CLAIMANT IS NOT CONFRONTED BY "SUBSTANTIAL AND 'REAL'" BUT MERELY
"TRIFLING OR IMAGINARY HAZ ARDS OF INCRIMINATION"-- FIRST BY REASON OF
THE STATUTORY BARRIER AGAINST USE IN A PROSECUTION FOR PRIOR OR
CONCURRENT OFFENSES, AND SECOND BY REASON OF THE UNAVAILABILITY OF THE
REGISTRATION DATA, AS A MATTER OF ADMINISTRATION, TO LOCAL, STATE, AND
OTHER FEDERAL AGENCIES.  MARCHETTI V. UNITED STATES, SUPRA, AT 53-54. 
CF. MINOR V. UNITED STATES, 396 U.S. 87, 94.  SINCE THE STATE AND OTHER
FEDERAL AGENCIES NEVER SEE THE INFORMATION, HE IS LEFT IN THE SAME
POSITION AS IF HE HAD NOT IGVEN IT, BUT "HAD CLAIMED HIS PRIVILEGE IN
THE ABSENCE OF A . . . GRANT OF IMMUNITY."  MURPHY V. WATERFRONT
COMM'N, 378 U.S. 52, 79.  THIS, COMBINED WITH THE PROTECTION AGAINST
USE TO PROVE PRIOR OR CONCURRENT OFFENSES, SATISFIES THE FIFTH
AMENDMENT REQUIREMENTS RESPECTING SELF-INCRIMINATION.  /11/ 

APPELLEES' ARGUMENT ASSUMES THE EXISTENCE OF A PERIPHERY OF THE SELF
INCRIMINATION CLAUSE WHICH PROTECTS A PERSON AGAINST INCRIMINATION NOT
ONLY AGAINST PAST OR PRESENT TRANSGRESSIONS BUT WHICH SUPPLIES
INSULATION FOR A CAREER OF CRIME ABOUT TO BE LAUNCHED.  WE CANNOT GIVE
THE SELF-INCRIMINATION CLAUSE SUCH AN EXPANSIVE INTERPRETATION. 

ANOTHER ARGUMENT GOES TO THE QUESTION OF ENTRAPMENT.  BUT THAT IS AN
ISSUE FOR THE TRIAL, NOT FOR A MOTION TO DISMISS. 

        II 

WE ALSO CONCLUDE THAT THE DISTRICT COURT ERRED IN DISMISSING THE
INDICTMEN?  FOR ABSENCE OF AN ALLEGATION OF SCIENTER. 

THE ACT REQUIRES NO SPECIFIC INTENT OR KNOWLEDGE THAT THE HAND
GREANDES WERE UNREGISTERED.  IT MAKES IT UNLAWFUL FOR ANY PERSON "TO
RECEIVE OR POSSESS A FIREARM WHICH IS NOT REGISTERED TO HIM."  /12/  BY
THE LOWER COURT DECISIONS AT THE TIME THAT REQUIREMENT WAS WRITTEN INTO
THE ACT THE ONLY KNOWLEDGE REQUIRED TO BE PROVED WAS KNOWLEDGE THAT THE
INSTRUMENT POSSESSED WAS A FIREARM.  SEE SIPES V. UNITED STATES, 321
F.2D 174, 179, AND CASES CITED. 

THE PRESENCE OF A "VICIOUS WILL" OR MENS REA (MORISSETTE V. UNITED
STATES , 342 U.S. 246, 251) WAS LONG A REQUIREMENT OF CRIMINAL
RESPONSIBILITY.  BUT THE LIST OF EXCEPTIONS GREW, ESPECIALLY IN THE
EXPANDING REGULATORY AREA INVOVLING ACTIVITIES AFFECTING PUBLIC HEALTH,
SAFETY, AND WELFARE.  ID., AT 254.  THE STATUTORY OFFENSE OF
EMBEZZLEMENT, BORROWED FROM THE COMMON LAW WHERE SCIENTER WAS
HISTORICALLY REQUIRED, WAS IN A DIFFERENT CATEGORY.  /13/  ID., AT 260
261. 

     "(WHERE CONGRESS BORROWS TERMS OF ART IN WHICH ARE ACCUMULATED

  THE LEGAL TRADITION AND MEANING OF CENTURIES OF PRACTICE, IT

  PRESUMABLY KNOWS AND ADOPTS THE CLUSTER OF IDEAS THAT WERE

  ATTACHED TO EACH BORROWED WORD IN THE BODY OF LEARNING FROM WHICH

  IT WAS TAKEN AND THE MEANINGS ITS USE WILL CONVEY TO THE JUDICIAL

  MIND UNLESS OTHERWISE INSTRUCTED."  ID., AT 263. 

AT THE OTHER EXTREME IS LAMBERT V. CALIFORNIA, 355 U.S. 225, IN
WHICH A MUNICIPAL CODE MADE IT A CRIME TO REMAIN IN LOS ANGELES FOR
MORE THAN FIVE DAYS WITHOUT REGISTERING IF A PERSON HAD BEEN CONVICTED
OF A FELONY.  THE MERE FAILURE TO REGISTER, WE HELD, WAS QUITE "UNLIKE
THE COMMISSION OF ACTS, OR THE FAILURE TO ACT UNDER CIRCUMSTANCES THAT
SHOULD ALERT THE DOER TO THE CONSEQUENCES OF HIS DEED."  ID., AT 228. 
THE FACT THAT THE ORDINANCE WAS A CONVENIENT LAW ENFORCEMENT TECHNIQUE
DID NOT SAVE IT. 

"WHERE A PERSON DID NOT KNOW OF THE DUTY TO REGISTER AND WHERE THERE
WAS NO PROOF OF THE PROBABILITY OF SUCH KNOWLEDGE, HE MAY NOT BE
CONVICTED CONSISTENTLY WITH DUE PROCESS.  WERE IT OTHERWISE, THE EVIL
WOULD BE AS GREAT AS IT IS WHEN THE LAW IS WRITTEN IN PRINT TOO FINE TO
READ OR IN A LANGUAGE FOREIGN TO THE COMMUNITY."  ID., AT 229-230. 

IN UNITED STATES V. DOTTERWEICH, 320 U.S. 277, 284, A CASE DEALING
WITH THE IMPOSITION OF A PENALTY ON A CORPORATE OFFICER WHOSE FIRM
SHIPPED ADULTERATED AND MISBRANDED DRUGS IN VIOLATION OF THE FOOD AND
DRUG ACT, WE APPROVED THE PENALTY "THOUGH CONSCIOUSNESS OF WRONGDOING
BE TOTALLY WANTING." 

THE PRESENT CASE IS IN THE CATEGORY NEITHER OF LAMBERT NOR
MORISSETTE, BUT IS CLOSER TO DOTTERWEICH.  THIS IS A REGULATORY MEASURE
IN THE INTEREST OF THE PUBLIC SAFETY, WHICH MAY WELL BE PREMISED ON THE
THEORY THAT ONE WOULD HARDLY BE SURPRISED TO LEARN THAT POSSESSION OF
HAND GRENADES IS NOT AN INNOCENT ACT.  /14/  THEY ARE HIGHLY DANGEROUS
OFFENSIVE WEAPONS, NO LESS DANGEROUS THAN THE NARCOTICS INVOLVED IN
UNITED STATES V. BALINT, 258 U.S. 250, 254, WHERE A DEFENDANT WAS
CONVICTED OF SALE OF NARCOTICS AGAINST HIS CLAIM THAT HE DID NOT KNOW
THE DRUGS WERE COVERED BY A FEDERAL ACT.  WE SAY WITH CHIEF JUSTICE
TAFT IN THAT CASE: 

"IT IS VERY EVIDENT FROM A READING OF IT THAT THE EMPHASIS OF THE
IN THESE DANGEROUS DRUGS BY THE TAXING OFFICERS OF THE GOVERNMENT AND
THAT IT MERELY USES A CRIMINAL PENALTY TO SECURE RECORDED EVIDENCE OF
THE DISPOSITION OF SUCH DRUGS AS A MEANS OF TAXING AND RESTRAINING THE
TRAFFIC.  ITS MANIFEST PURPOSE IS TO REQUIRE EVERY PERSON DEALING IN
DRUGS TO ASCERTAIN AT HIS PERIL WHETHER THAT WHICH HE SELLS COMES
WITHIN THE INHIBITION OF THE STATUTE, AND IF HE SELLS THE INHIBITED
DRUG IN IGNORANCE OF ITS CHARACTER, TO PENALIZE HIM.  CONGRESS WEIGHED
THE POSSIBLE INJUSTICE OF SUBJECTING AN INNOCENT SELLER TO A PENALTY
AGAINST THE EVIL OF EXPOSING INNOCENT PURCHASERS TO DANGER FROM THE
DRUG, AND CONCLUDED THAT THE LATTER WAS THE RESULT PREFERABLY TO BE
AVOIDED."  ID., AT 253-254. 

              REVERSED. 

/1/  SEE S. REP. NO. 1501, 90TH CONG., 2D SESS., 26, 42, 48, 52;
H.R. CONF. REP. NO. 1956, 90TH CONG., 2D SESS., 35. 

/2/  26 U.S.C. 5845(F) (1964 ED., SUPP. V) DEFINES "DESTRUCTIVE
DEVICE" TO INCLUDE "GRENADES" WHICH ARE INVOLVED IN THE PRESENT CASE. 

/3/  TITLE 26 U.S.C. 5812(A) (1964 ED., SUPP. V) PROVIDES: 

"A FIREARM SHALL NOT BE TRANSFERRED UNLESS (1) THE TRANSFEROR OF THE
FIREARM HAS FILED WITH THE SECRETARY OR HIS DELEGATE A WRITTEN
APPLICATION, IN DUPLICATE, FOR THE TRANSFER AND REGISTRATION OF THE
FIREARM TO THE TRANSFEREE ON THE APPLICATION FORM PRESCRIBED BY THE
SECRETARY OR HIS DELEGATE; (2) ANY TAX PAYABLE ON THE TRANSFER IS PAID
AS EVIDENCED BY THE PROPER STAMP AFFIXED TO THE ORIGINAL APPLICATION
FORM; (3) THE TRANSFEREE IS IDENTIFIED IN THE APPLICATION FORM IN SUCH
MANNER AS THE SECRETARY OR HIS DELEGATE MAY BY REGULATIONS PRESCRIBE,
EXCEPT THAT, IF SUCH PERSON IS AN INDIVIDUAL, THE IDENTIFICATION MUST
INCLUDE HIS INGGERPRINTS AND HIS PHOTOGRAPH; (4) THE TRANSFEROR OF THE
FIREARM IS IDENTIFIED IN THE APPLICATION FORM IN SUCH MANNER AS THE
SECRETARY OR HIS DELEGATE MAY BY REGULATIONS PRESCRIBE; (5) THE FIREARM
IS IDENTIFIED IN THE APPLICATION FORM IN SUCH MANNER AS THE SECRETARY
OR HIS DELEGATE MAY BY REGULATIONS PRESCRIBE; AND (6) THE APPLICATION
FORM SHOWS THAT THE SECRETARY OR HIS DELEGATE HAS APPROVED THE TRANSFER
AND THE REGISTRATION OF THE FIREARM TO THE TRANSFEREE.  APPLICATIONS
SHALL BE DENIED IF THE TRANSFER, RECEIPT, OR POSSESSION OF THE FIREARM
WOULD PLACE THE TRANSFEREE IN VIOLATION OF LAW." 

TITLE 26 U.S.C. 5812(B) (1964 ED., SUPP. V) PROVIDES: 

"THE TRANSFEREE OF A FIREARM SHALL NOT TAKE POSSESSION OF THE
FIREARM UNLESS THE SECRETARY OR HIS DELEGATE HAS APPROVED THE TRANSFER
AND REGISTRATION OF THE FIREARM TO THE TRANSFEREE AS REQUIRED BY
SUBSECTION (A) OF THIS SECTION." 

TITLE 26 U.S.C. 5841(B) (1964 ED., SUPP. V) PROVIDES: 

"EACH MANUFACTURER, IMPORTER, AND MAKER SHALL REGISTER EACH FIREARM
HE MANUFACTURES, IMPORTS, OR MAKES.  EACH FIREARM TRANSFERRED SHALL BE
REGISTERED TO THE TRANSFEREE BY THE TRANSFEROR." 

/4/  26 U.S.C. 5861(D) (1964 ED., SUPP. V). 

/5/  26 U.S.C. 5848 (1964 ED., SUPP. V); AND SEE 26 CFR 179.202. 

/6/  PENAL CODE SEC. 12303 (1970). 

/7/  26 U.S.C. 5811 (1964 ED., SUPP. V). 

/8/  26 U.S.C. 5812(A) (1964 ED., SUPP. V); 26 CFR 179.98-179.99. 

/9/  26 CFR 179.100.     /10/  26 U.S.C. 5848 (1964 ED., SUPP. V);
26 CFR 179.202. 

/11/  WE DO NOT REACH THE QUESTION OF "USE IMMUNITY" AS OPPOSED TO
"TRANSACTIONAL IMMUNITY," CF. PICCIRILLO V. NEW YORK, 400 U.S. 548, BUT
ONLY HOLD THAT, UNDER THIS STATORY SCHEME, THE HAZARDS OF SELF
INCRIMINATION ARE NOT REAL. 

/12/  26 U.S.C. 5861(D) (1964 ED., SUPP. V). 

/13/  AS RESPECTS THE MORISETTE CASE, J. MARSHALL, INTENTION-- IN
LAW AND SOCIETY 138 )1968), SAYS: 

"THE DEFENDANT WISHED TO TAKE GOVERNMENT PROPERTY FROM A GOVERNMENT
BOMBING RANGE, HE HAD THE CAPACITY TO TAKE IT, HE HAD THE OPPORTUNITY,
HE TRIED AND SUCCEEDED IN TAKING IT (HIS WISH WAS FULFILLED, HIS ACT
ACCOMPLISHED).  FOR RECOVERY IN A TORT ACTION NO MORE WOULD HAVE TO BE
SHOWN TO ESTABLISH LIABILITY, BUT THE COURT HELD THAT TO MAKE HIS
ACTION CRIMINAL 'A FELONIOUS INTENT,' MENS REA, HAD TO BE ESTABLISHED. 
THIS COULD NOT BE PRESUMED FROM HIS ACTIONS, WHICH WERE OPEN, WITHOUT
CONCEALMENT, AND IN THE BELIEF-- ACCORDING TO HIS STATEMENT-- THAT THE
PROPERTY HAD BEEN ABANDONED.  IN OTHER WORDS, FOR THE HAPPENING TO BE
CRIMINAL, THE WISH HAD TO BE TO ACCOMPLISH SOMETHING CRIMINAL.  SO IN
DISCUSSING INTENT WE MAY HAVE WISHES OF TWO DIFFERENT CHARACTERS:  ONE
GIVING A BASIS FOR CIVIL LIABILITY (THE WISH TO TAKE PROPERTY NOT ON'E
OWN), AND ANOTHER WHICH WOULD SUPPORT CRIMINAL LIABILITY AS WELL AS
CIVIL (TAKING PROPERTY WITH CRIMINAL INTENT)." 

/14/  WE NEED NOT DECIDE WHETHER A CRIMINAL CONSPIRACY TO DO AN ACT
"INNOCENT IN ITSELF" AND NOT KNOWN BY THE ALLEGED CONSPIRATORS TO BE
PROHIBITED MUST BE ACTUATED BY SOME CORRUPT MOTIVE OTHER THAN THE
INTENTION TO DO THE ACT WHICH IS PROHIBITED AND WHICH IS THE OBJECT OF
THE CONSPIRACY.  AN AGREEMENT TO ACQUIRE HAND GRENADES IS HARDLY AN
AGREEMENT INNOCENT IN ITSELF.  THEREFORE WHAT WE HAVE SAID OF THE
SUBSTANTIVE OFFENSE SATISFIES ON THESE SPECIAL FACTS THE REQUIREMENTS
FOR A CONSPIRACY.  CF. UNITED STATES V. MACK, 112 F.2D 290. 

MR. JUSTICE BRENNAN, CONCURRING IN THE JUDGMENT OF REVERSAL. 

I AGREE THAT THE AMENDMENTS TO THE NATIONAL FIREARMS ACT, 26 U.S.C.
5841-5872 (1964 ED., SUPP. V), DO NOT VIOLATE THE FIFTH AMENDMENT'S
PRIVILEGE AGAINST SELF-INCRIMINATION, AND JOIN PART I OF THE OPINION OF
THE COURT.  HOWEVER, I DO NOT JOIN PART II OF THE OPINION; ALTHOUGH I
REACH THE SAME RESULT AS THE COURT ON THE INTENT THE GOVERNMENT MUST
PROVE TO CONVICT, I DO SO BY ANOTHER ROUTE. 

I JOIN PART I ON MY UNDERSTANDING OF THE ACT'S NEW IMMUNITY
PROVISION.  26 U.S.C. 5848 (1964 ED., SUPP. V).  THE AMENDED
REGISTRATION PROVISIONS OF THE NATIONAL FIREARMS ACT DO NOT POSE ANY
REALISTIC POSSIBILITY OF SELF-INCRIMINATION OF THE TRANSFEREE UNDER
FEDERAL LAW.  AN EFFECTIVE REGISTRATION OF A COVERED FIREARM WILL
RENDER THE TRANSFEREE'S POSSESSION OF THAT FIREARM LEGAL UNDER FEDEAL
LAW.  IT IS ONLY APPELLEES' CONTENTION THAT REGISTRATION OR APPLICATION
FOR REGISTRATION WILL INCRIMINATE THEM UNDER CALIFORNIA LAW THAT RAISES
THE FIFTH AMENDMENT ISSUE IN THIS CASE.  SPECIFICALLY, APPELLEES ASSERT
THAT CALIFORNIA LAW OUTLAWS POSSESSION OF HAND GRENADES AND THAT
REGISTRATION UNDER FEDERAL LAW WOULD, THEREFORE, INCRIMINATE THEM UNDER
STATE LAW.  ASSUMING THAT APPELLEES CORRECTLY INTERPRET CALIFORNIA LAW,
I THINK THAT THE ACT'S IMMUNITY PROVISION SUFFICES TO SUPPLANT THE
CONSTITUTIONAL PROTECTION.  SECTION 5848 PROVIDES IN PERTINENT PART: 

     "NO INFORMATION OR EVIDENCE OBTAINED FROM AN APPLICATION . . .

  SHALL . . . BE USED, DIRECTLY OR INDIRECTLY, AS EVIDENCE AGAINST

THAT PERSON IN A CRIMINAL PROCEEDING WITH RESPECT TO A VIOLATION

  OF LAW OCCURRING PRIOR TO OR CONCURRENTLY WITH THE FILING OF THE

  APPLICATION . . . " 

IN MY JUDGMENT, THIS PROVISION WOULD PREVENT A STATE FROM MAKING ANY
USE OF A FEDERAL REGISTRATION OR APPLICATION, OR ANY FRUITS THEREOF, IN
CONNECTION WITH A PROSECUTION UNDER THE STATE'S POSSESSION LAW.  /1/
THIS WOULD BE TRUE EVEN IF THE STATE CHARGED A TRANSFEREE WITH
POSSESSION OF THE FIREARM ON A DATE AFTER THE DATE THE APPLICATION WAS
FILED, BECAUSE POSSESSION IS A CONTINUING VIOLATION.  /2/  THEREFORE,
FOR PURPOSES OF THE STATE'S POSSESSION LAW, A TRANSFEREE'S CONTINUED
POSSESSION OF A REGISTERED FIREARM WOULD CONSTITUTE "A VIOLATION OF LAW
OCCURRING . . . CONCURRENTLY WITH THE FILING OF THE APPLICATION." 

I AGREE WITH THE COURT THAT THE SELF-INCRIMINATION CLAUSE OF THE
FIFTH AMENDMENT DOES NOT REQUIRE THAT IMMUNITY BE GIVEN AS TO THE USE
OF SUCH INFORMATION IN CONNECTION WITH CRIMES THAT THE TRANSFEREE MIGHT
POSSIBLY COMMIT IN THE FUTURE WITH THE REGISTERED FIREARM.  THE ONLY
DISCLOSURE REQUIRED UNDER THE AMENDED ACT IS THAT THE TRANSFEREE HAS
RECEIVED A FIREARM AND IS IN POSSESSION OF IT.  THUS, IN CONNECTION
WITH THE PRESENT GENERAL REGISTRATION SCHEME, "(THE RELEVANT CLASS OF
ACTIVITIES 'PERMEATED WITH CRIMINAL STATUTES,'" MACKEY V. UNITED
STATES, POST, AT 710 (BRENNAN, J., CONCURRING IN JUDGMENT), IS LIMITED
TO THE CLASS OF ACTIVITIES RELATING TO POSSESSION OF FIREARMS.  ID., AT
707-711.  SINCE I READ THE STATUTE'S IMMUNITY PROVISION TO PROVIDE
IMMUNITY CO-EXTENSIVE WITH THE PRIVILEGE IN THAT REGARD, I FIND NO
FIFTH AMENDMENT BAR TO THE ENFORCEMENT OF THE FEDERAL STATUTE. 

THE COURT'S DISCUSSION OF THE INENT THE GOVERNMENT MUST PROVE TO
CONVICT APPELLEES OF VIOLATION OF 26 U.S.C. 5861(D) (1964 ED., SUPP. V)
DOES NOT DISPEL THE CONFUSION SURROUNDING A DIFFICULT, BUT VITALLY
IMPORTANT, AREA OF THE LAW.  THIS CASE DOES NOT RAISE QUESTIONS OF
"CONSCIOUSNESS OF WRONGDOING" OR "BLAMEWORTHINESS."  IF THE ANCIENT
MAXIM THAT "IGNORANCE OF THE LAW IS NO EXCUSE" HAS ANY RESIDUAL
VALIDITY, IT INDICATES THAT THE ORDINARY INTENT REQUIREMENT-- MENS REA-
OF THE CRIMINAL LAW DOES NOT REQUIRE KNOWLEDGE THAT AN ACT IS ILLEGAL,
WRONG, OR BLAMEWORTHY.  NOR IS IT POSSIBLE TO DECIDE THIS CASE BY A
SIMPLE PROCESS OF CLASSIFYING THE STATUTE INVOLVED AS A "REGULATORY" OR
A "PUBLIC WELFARE" MEASURE.  TO CONVICT APPELLEES OF POSSESSION OF
UNREGISTERED HAND GRENADES, THE GOVERNMENT MUST PROVE THREE MATERIAL
ELEMENTS:  (1) THAT APPELLEES POSSESSED CERTAIN ITEMS; (2) THAT THE
ITEMS POSSESSED WERE HAND GRENADES; AND (3) THAT THE HAND GRENADES WERE
NOT REGISTERED.  THE GOVERNMENT AND THE COURT AGREE THAT THE PROSECUTOR
MUST PROVE KNOWING POSSESSION OF THE ITEMS AND ALSO KNOWLEDGE THAT THE
ITEMS POSSESSED WERE HAND GRENADES.  THUS WHILE THE COURT DOES HOLD
THAT NO INTENT AT ALL NEED BE PROVED IN REGARD TO ONE ELEMENT OF THE
OFFENSE-- THE UNREGISTERED STATUS OF THE GRENADES-- KNOWLEDGE MUST
STILL BE PROVED AS TO THE OTHER TWO ELEMENTS.  CONSEQUENTLY, THE
NATIONAL FIREARMS ACT DOES NOT CREATE A CRIME OF STRICT LIABILITY AS TO
ALL ITS ELEMENTS.  IT IS NO HELP IN DECIDING WHAT LEVEL OF INTENT MUST
BE PROVED AS TO THE THIRD ELEMENT TO DECLARE THAT THE OFFENSE FALLS
WITHIN THE "REGULATORY" CATEGORY. 

FOLLOWING THE ANALYSIS OF THE MODEL PENAL CODE, /3/  I THINK WE MUST
RECOGNIZE, FIRST, THAT "(THE EXISTENCE OF A MENS REA IS THE RULE OF,
RATHER THAN THE EXCEPTION TO, THE PRINCIPLES OF ANGLO-AMERICAN CRIMINAL
JURISPRUDENCE."  DENNIS V. UNITED STATES, 341 U.S. 494, 500 (1951)
(VINSON, C.J., ANNOUNCING JUDGMENT); SMITH V. CALIFORNIA, 361 U.S. 147,
150 (1959); /4/  SECOND, THAT MENS REA IS NOT A UNITARY CONCEPT, BUT
MAY VARY AS TO EACH ELEMENT OF A CRIME; AND THIRD, THAT ANGLO-AMERICAN
LAW HAS DEVELOPED SEVERAL IDENTIFIABLE AND ANALYTICALLY DISTINCT LEVELS
OF INTENT, E.G., NEGLIGENCE, RECKLESSNESS, KNOWLEDGE, AND PURPOSE.  /5/
TO DETERMINE THE MENTAL ELEMENT REQUIRED FOR CONVICTION, EACH MATERIAL
ELEMENT OF THE OFFENSE MUST BE EXAMINED AND THE DETERMINATION MADE WHAT
LEVEL OF INTENT CONGRESS INTENDED THE GOVERNMENT TO PROVE, TAKING INTO
ACCOUNT CONSTITUTIONAL CONSIDERATIONS, SEE SCREWS V. UNITED STATES, 325
U.S. 91 (1945), AS WELL AS THE COMMON-LAW BACKGROUND, IF ANY, OF THE
CRIME INVOLVED.  SEE MORISSETTE V. UNITED STATES, 342 U.S. 246 (1952). 

ALTHOUGH THE LEGISLATIVE HISTORY OF THE AMENDMENTS TO THE NATIONAL
FIREARMS ACT IS SILENT ON THE LEVEL OF INTENT TO BE PROVED IN
CONNECTION WITH EACH ELEMENT OF THE OFFENSE, WE ARE NOT WITHOUT SOME
GUIDEPOSTS.  I BEGIN WITH THE PROPOSITION STATED IN MORISSETTE V.
UNITED STATES, 342 U.S.AT 250, THAT THE REQUIREMENT OF MENS REA "IS NO
PROVINCIAL OR TRANSIENT NOTION.  IT IS AS UNIVERSAL AND PERSISTENT IN
MATURE SYSTEMS OF LAW AS BELIEF IN FREEDOM OF THE HUMAN WILL AND A
CONSEQUENT ABILITY AND DUTY OF THE NORMAL INDIVIDUAL TO CHOOSE BETWEEN
GOOD AND EVIL."  IN REGARD TO THE FIRST TWO ELEMENTS OF THE OFFENSE,
(1) POSSESSION OF ITEMS THAT (2) ARE HAND GRENADES, THE GENERAL RULE IN
FAVOR OF SOME INTENT REQUIREMENT FINDS CONFIRMATION IN THE CASE LAW
UNDER THE PROVISIONS REPLACED BY THE PRESENT AMENDMENTS.  THE CASES
HELD THAT A CONVICTION OF AN INDIVIDUAL OF ILLEGAL POSSESSION OF
UNREGISTERED FIREARMS HAD TO BE SUPPORTED BY PROOF THAT HIS POSSESSION
WAS "WILLING AND CONSCIOUS" AND THAT HE KNEW THE ITEMS POSSESSED WERE
FIREARMS.  E.G., SIPES V. UNITED STATES, 321 F.2D 174, 179 (CA8 1963);
UNITED STATES V. DECKER, 292 F.2D 89 (CA6 1961).  CONGRESS DID NOT
DISAPPROVE THESE CASES, AND WE MAY THEREFORE PROPERLY INFER THAT
CONGRESS MEANT THAT THE GOVERNMENT MUST PROVE KNOWLEDGE WITH REGARD TO
THE FIRST TWO ELEMENTS OF THE OFFENSE UNDER THE AMENDED STATUTE. 

THE THIRD ELEMENT-- THE UNREGISTERED STATUS OF THE GRENADES--
PRESENTS MORE DIFFICULTY.  PROOF OF INTENT WITH REGARD TO THIS ELEMENT
WOULD REQUIRE THE GOVERNMENT TO SHOW THAT THE APPELLEES KNEW THAT THE
GRENADES WERE UNREGISTERED OR NEGLIGENTLY OR RECKLESSLY FAILED TO
ASCERTAIN WHETHER THE WEAPONS WERE REGISTERED.  IT IS TRUE THAT SUCH A
REQUIREMENT WOULD INVOLVE KNOWLEDGE OF LAW, BUT IT DOES NOT INVOLVE
"CONSCIOUSNESS OF WRONGDOING" IN THE SENSE OF KNOWLEDGE THAT ONE'S
ACTIONS WERE PROHIBITED OR ILLEGAL.  /6/  RATHER, THE DEFINITION OF THE
CRIME, AS WRITTEN BY CONGRESS, REQUIRES PROOF OF CIRCUMSTANCES THAT
INVOLVE A LEGAL ELEMENT, NAMELY WHETHER THE GRENADES WERE REGISTERED IN
ACCORDANCE WITH FEDERAL LAW.  THE KNOWLEDGE INVOLVED IS SOLELY
KNOWLEDGE OF THE CIRCUMSTANCES THAT THE LAW HAS DEFINED AS MATERIAL TO
THE OFFENSE.  THE MODEL PENAL CODE ILLUSTRATES THE DISTINCTION: 

     "IT SHOULD BE NOTED THAT THE GENERAL PRINCIPLE THAT IGNORANCE

  OR MISTAKE OF LAW IS NO EXCUSE IS USUALLY GREATLY OVERSTATED; IT

  HAS NO APPLICATION WHEN THE CIRCUMSTANCES MADE MATERIAL BY THE

  DEFINITION OF THEOFFENSE INCLUDE A LEGAL ELEMENT.  SO, FOR

  EXAMPLE, IT IS IMMATERIAL IN THEFT, WHEN CLAIM OF RIGHT IS

  ADDUCED IN DEFENSE, THAT THE CLAIM INVOLVES A LEGAL JUDGMENT AS

 TO THE RIGHT OF PROPERTY.  IT IS A DEFENSE BECAUSE KNOWLEDGE THAT

  THE PROPERTY BELONGS TO SOMEONE ELSE IS A MATERIAL ELEMENT OF THE

  CRIME AND SUCH KNOWLEDGE MAY INVOLVE MATTER OF LAW AS WELL AS

  FACT . . . . THE LAW INVOLVED IS NOT THE LAW DEFINING THE

  OFFENSE; IT IS SOME OTHER LEGAL RULE THAT CHARACTERIZES THE

  ATTENDANT CIRCUMSTANCES THAT ARE MATERIAL TO THE OFFENSE."  MODEL

  PENAL CODE SEC. 2.02, COMMENT 131 (TENT.  DRAFT NO. 4, 1955). 

THEREFORE, AS WITH THE FIRST TWO ELEMENTS, THE QUESTION IS SOLELY
ONE OF CONGRESSIONAL INTENT.  AND WHILE THE QUESTION IS NOT AN EASY
ONE, TWO FACTORS PERSUADE ME THAT PROOF OF MENS REA AS TO THE
UNREGISTERED STATUS OF THE GRENADES IS NOT REQUIRED.  FIRST, AS THE
COURT NOTES, THE CASE LAW UNDER THE PROVISIONS REPLACED BY THE CURRENT
LAW DISPENSED WITH PROOF OF INTENT IN CONNECTION WITH THIS ELEMENT. 
SIPES V. UNITED STATES, SUPRA.  SECOND, THE FIREARMS COVERED BY THE ACT
ARE MAJOR WEAPONS SUCH AS MACHINEGUNS AND SAWED-OFF SHOTGUNS; DECEPTIVE
WEAPONS SUCH AS FLASHLIGHT GUNS AND FOUNTAIN PEN GUNS; AND MAJOR
DESTRUCTIVE DEVICES SUCH AS BOMBS, GRENADES, MINES, ROCKETS, AND LARGE
CALIBER WEAPONS INCLUDING MORTARS, ANTITANK GUNS, AND BAZOOKAS. 
WITHOUT EXCEPTION, THE LIKELIHOOD OF GOVERNMENTAL REGULATION OF THE
DISTRIBUTION OF SUCH WEAPONS IS SO GREAT THAT ANYONE MUST BE PRESUMED
TO BE AWARE OF IT.  IN THE CONTEXT OF A TAXING AND REGISTRATION SCHEME,
I THEREFORE THINK IT REASONABLE TO CONCLUDE THAT CONGRESS DISPENSED
WITH THE REQUIREMENT OF INTENT IN REGARD TO THE UNREGISTERED STATUS OF
THE WEAPON, AS NECESSARY TO EFFECTIVE ADMINISTRATION OF THE STATUTE. 

/1/  NO QUESTION OF TRANSACTIONAL IMMUNITY IS RAISED HERE SINCE THE
CASE INVOLVES INCRIMINATION UNDER THE LAWS OF A JURISDICTION DIFFERENT
FROM THE ONE COMPELLING THE INCRIMINATING INFORMATION.  PICCIRILLO V.
NEW YORK, 400 U.S. 548, 552 (BRENNAN, J., DISSENTING). 

/2/  THE RESULT WOULD BE THE SAME IF A TRANSFEREE MOVED FROM A STATE
WHERE POSESSESSION WAS LEGAL TO A STATE WHERE POSSESSION WAS ILLEGAL. 
THE TIME WHEN THE POSSESSION BECAME ILLEGAL CANNOT AFFECT THE
CONTINUING NATURE OF THE ACT OF POSSESSION. 

/3/  ALI MODEL PENAL CODE SEC. 2.02, COMMENT 123-132 (TENT.  DRAFT
NO. 4, 1955). 

/4/  "STILL, IT IS DOUBTLESS COMPETENT FOR THE (GOVERNMENT) TO CREATE
STRICT CRIMINAL LIABILITIES BY DEFINING CRIMINAL OFFENSES WITHOUT ANY
ELEMENT OF SCIENTER-- THOUGH . . . THERE IS PRECEDENT IN THIS COURT
THAT THIS POWER IS NOT WITHOUT LIMITATIONS.  SEE LAMBERT V. CALIFORNIA,
355 U.S. 225."  SMITH V. CALIFORNIA, 361 U.S. 147, 150 (1959).  THE
SITUATIONS IN WHICH STRICT LIABILITY MAY BE IMPOSED WERE STATED BY
JUDGE, NOW MR. JUSTICE BLACKMUN:  "(WHERE A FEDERAL CRIMINAL STATUTE
OMITS MENTION OF INTENT AND WHERE IT SEEMS TO INVOLVE WHAT IS BASICALLY
A MATTER OF POLICY, WHERE THE STANDARD IMPOSED IS, UNDER THE
CIRCUMSTANCES, REASONABLE AND ADHERENCE THERETO PROPERLY EXPECTED OF A
PERSON, WHERE THE PENALTY IS RELATIVELY SMALL, WHERE CONVICTION DOES
NOT GRAVELY BESMIRCH, WHERE THE STATUTORY CRIME IS NOT ONE TAKEN OVER
FROM THE COMMON LAW, AND WHERE CONGRESSIONAL PURPOSE IS SUPPORTING, THE
STATUTE CAN BE CONSTRUED AS ONE NOT REQUIRING CRIMINAL INTENT." 
HOLDRIDGE V. UNITED STATES, 282 F.2D 302, 310 (CA8 1960).     /5/
THESE DIFFERENT LEVELS OF INTENT ARE DEFINED IN THE CODE.  ALI MODEL
PENAL CODE SEC. 2.02 (PROP.  OFFICIAL DRAFT 1962).  THIS COURT HAS
RELIED ON THE CODE'S DEFINITIONS.  LEARY V. UNITED STATES, 395 U.S. 6,
46 N. 93 (1969); TURNER V. UNITED STATES, 396 U.S. 398, 416 N. 29
(1970). 

/6/  PROOF OF SOME CRIMES MAY INCLUDE A REQUIREMENT OF PROOF OF
ACTUAL KNOWLEDGE THAT THE ACT WAS PROHIBITED BY LAW, OR PROOF OF A
PURPOSE TO BRING ABOUT THE FORBIDDEN RESULT.  SEE JAMES V. UNITED
STATES, 366 U.S. 213 (1961); BOYCE MOTOR LINES V. UNITED STATES, 342
U.S. 337 (1952).  UNITED STATES V. MURDOCK, 290 U.S. 389 (1933).  SEE
GENERALLY NOTE, COUNSELING DRAFT RESISTANCE:  THE CASE FOR A GOOD FAITH
BELIEF DEFENSE, 78 YALE L.J. 1008, 1022-1037 (1969).  CF. MODEL PENAL
CODE SEC. 2.02(2)(A) (PROP.  OFFICIAL DRAFT 1962) (DEFINITION OF
"PURPOSELY"). 

MATTHEW J. ZINN ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON PETER L. STRAUSS, BEATRICE ROSENBERG, AND MERVYN HAMBURG. 

LUKE MCKISSACK ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES. 
..END :







INVESTMENT CO. INSTITUTE V. CAMP, 401 U.S. 617 


       INVESTMENT COMPANY INSTITUTE ET AL. V. CAMP, COMPTROLLER OF

           THE CURRENCY, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

   DISTRICT OF COLUMBIA CIRCUIT

        NO. 61.  ARGUED DECEMBER 15, 1970-- DECIDED APRIL 5, 1971

           /1/ 


PETITIONERS IN NO. 61, AN ASSOCIATION OF OPEN-END INVESTMENT
COMPANIES AND SEVERAL INDIVIDUAL SUCH COMPANIES, ATTACK (1) PORTIONS OF
THE COMPTROLLER OF THE CURRENCY'S REGULATION 9, PURPORTING TO AUTHORIZE
BANKS TO OPERATE COLLECTIVE INVESTMENT FUNDS, AS VIOLATIVE OF THE GLASS
STEAGALL BANKING ACT OF 1933 AND (2) THE COMPTROLLER'S APPROVAL GIVEN
FIRST NATIONAL CITY BANK TO OPERATE A COLLECTIVE INVESTMENT FUND. 
PETITIONER IN NO. 59 SEEKS REVIEW OF A SECURITIES AND EXCHANGE
COMMISSION (SEC) ORDER EXEMPTING THAT FUND FROM CERTAIN PROVISIONS OF
THE INVESTMENT COMPANY ACT OF 1940.  THE DISTRICT COURT CONCLUDED IN
NO. 61 THAT THE CHALLENGED PROVISIONS OF REGULATION 9 WERE INVALID. 
THE COURT OF APPEALS, AFTER CONSOLIDATING THE CASES, HELD THAT THE
COMPTROLLER'S AND THE SEC'S ACTIONS WERE CONSONANT WITH THE RELEVANT
STATUTES, AND AFFIRMED THE SEC'S ORDER AND REVERSED THE DISTRICT COURT
HELD: 

1.  PETITIONERS IN NO. 61 DO NOT LACK STANDING TO CHALLENGE WHETHER
NATIONAL BANKS MAY LEGALLY ENTER A FIELD IN COMPETITION WITH THEM. 
DATA PROCESSING SERVICE V. CAMP, 397 U.S. 150.  PP. 620-621. 

2.  THE OPERATION OF A COLLECTIVE INVESTMENT FUND OF THE KIND
APPROVED BY THE COMPTROLLER, THAT IS IN DIRECT COMPETITION WITH THE
MUTUAL FUND INDUSTRY, INVOLVES A BANK IN THE UNDERWRITING, ISSUING,
SELLING, AND DISTRIBUTING OF SECURITIES IN VIOLATION OF SECS. 16 AND 21
OF THE GLASS-STEAGALL ACT.  PP. 621-639. 

136 U.S.APP.D.C. 241, 420 F.2D 83, REVERSED IN NO. 61, AND VACATED
IN NO. 59. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BLACK,
DOUGLAS, BRENNAN, WHITE, AND MARSHALL, JJ., JOINED.  HARLAN, J., POST,
P. 639, AND BLACKMUN, J., POST, P. 642, FILED DISSENTING OPINIONS. 
BURGER, C.J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THESE
CASES. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THESE COMPANION CASES INVOLVE A DOUBLE-BARRELED ASSAULT UPON THE
EFFORTS OF A NATIONAL BANK TO GO INTO THE BUSINESS OF OPERATING A
MUTUAL INVESTMENT FUND.  THE PETITIONERS IN NO. 61 ARE AN ASSOCIATION
OF OPEN-END INVESTMENT COMPANIES AND SEVERAL INDIVIDUAL SUCH
COMPANIES.  THEY BROUGHT AN ACTION IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA, ATTACKING PORTIONS OF REGULATION 9 ISSUED
BY THE COMPTROLLER OF THE CURRENCY, /1A/  ON THE GROUND THAT THIS
REGULATION, IN PURPORTING TO AUTHORIZE BANKS TO ESTABLISH AND OPERATE
COLLECTIVE INVESTMENT FUNDS, SOUGHT TO PERMIT ACTIVITIES PROHIBITED TO
NATIONAL BANKS OR THEIR AFFILIATES BY VARIOUS PROVISIONS OF THE GLASS
STEAGALL BANKING ACT OF 1933, 48 STAT. 162.  /2/  THE PETITIONERS ALSO
SPECIFICALLY ATTACKED THE COMPTROLLER'S APPROVAL OF THE APPLICATION OF
FIRST NATIONAL CITY BANK OF NEW YORK FOR PERMISSION TO ESTABLISH AND
OPERATE A COLLECTIVE INVESTMENT FUND.  IN NO. 59 THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS FILED A PETITION IN THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SEEKING REVIEW OF
AN ORDER OF THE SECURITIES AND EXCHANGE COMMISSION THAT PARTIALLY
EXEMPTED THE COLLECTIVE INVESTMENT FUND OF FIRST NATIONAL CITY BANK OF
NEW YORK FROM VARIOUS PROVISIONS OF THE INVESTMENT COMPANY ACT OF
1940.  /3/ 

IN NO. 61 THE DISTRICT COURT CONCLUDED THAT THE CHALLENGED
PROVISIONS OF REGULATION 9 WERE INVALID UNDER THE GLASS-STEAGALL ACT. 
/4/  THE COMPTROLLER AND FIRST NATIONAL CITY BANK APPEALED FROM THIS
DECISION, AND THE APPEAL WAS CONSOLIDATED WITH THE PETITION FOR REVIEW
IN NO. 59.  THE COURT OF APPEALS HELD THAT THE ACTIONS TAKEN BY THE
SECURITIES AND EXCHANGE COMMISSION AND THE COMPTROLLER WERE FULLY
CONSONANT WITH THE STATUTES COMMITTED TO THEIR REGULATORY SUPERVISION. 
ACCORDINGLY, IT AFFIRMED THE ORDER OF THE COMMISSION AND REVERSED THE
JUDGMENT OF THE DISTRICT COURT.  /5/  WE GRANTED CERTIORARI TO CONSIDER
IMPORTANT QUESTIONS PRESENTED UNDER FEDERAL REGULATORY STATUTES.  /6/
FOR THE REASONS THAT FOLLOW, WE HOLD REGULATION 9 INVALID INSOFAR AS IT
AUTHORIZES THE SALE OF INTERESTS IN AN INVESTMENT FUND OF THE TYPE
ESTABLISHED BY FIRST NATIONAL CITY BANK PURSUANT TO THE COMPTROLLER'S
APPROVAL.  THIS DISPOSITION MAKES IT UNNECESSARY TO CONSIDER THE
PROPRIETY OF THE ACTION OF THE SECURITIES AND EXCHANGE COMMISSION IN
AFFORDING THIS FUND EXEMPTION FROM CERTAIN OF THE PROVISIONS OF THE
INVESTMENT COMPANY ACT OF 1940. 

     I 

IN NO. 61 IT IS URGED AT THE OUTSET THAT PETITIONERS LACK STANDING
TO QUESTION WHETHER NATIONAL BANKS MAY LEGALLY ENTER A FIELD IN
COMPETITION WITH THEM.  THIS CONTENTION IS FORECLOSED BY DATA
PROCESSING SERVICE V. CAMP, 397 U.S. 150.  THERE WE HELD THAT COMPANIES
THAT OFFERED DATA PROCESSING SERVICES TO THE GENERAL BUSINESS COMMUNITY
HAD STANDING TO SEEK JUDICIAL REVIEW OF A RULING BY THE COMPTROLLER
THAT NATIONAL BANKS COULD MAKE DATA PROCESSING SERVICES AVAILABLE TO
OTHER BANKS AND TO BANK CUSTOMERS.  WE HELD THAT DATA PROCESSING
COMPANIES WERE SUFFICIENTLY INJURED BY THE COMPETITION THAT THE
COMPTROLLER HAD AUTHORIZED TO CREATE A CASE OR CONTROVERSY.  THE INJURY
TO THE PETITIONERS IN THE INSTANT CASE IS INDISTINGUISHABLE.  WE ALSO
CONCLUDED THAT CONGRESS DID NOT INTENT "TO PRECLUDE JUDICIAL REVIEW OF
ADMINISTRATIVE RULINGS BY THE COMPTROLLER AS TO THE LEGITIMATE SCOPE OF
ACTIVITIES AVAILABLE TO NATIONAL BANKS UNDER (THE NATIONAL BANK ACT)." 
397 U.S.,AT 157.  THIS IS PRECISELY THE REVIEW THAT THE PETITIONERS
HAVE SOUGHT IN THIS CASE.  FINALLY, WE CONCLUDED THAT CONGRESS HAD
ARGUABLY LEGISLATED AGAINST THE COMPETITION THAT THE PETITIONERS SOUGHT
TO CHALLENGE, AND FROM WHICH FLOWED THEIR INJURY.  WE NOTED THAT
WHETHER CONGRESS HAD INDEED PROHIBITED SUCH COMPETITION WAS A QUESTION
FOR THE MERITS.  IN THE DISCUSSION THAT FOLLOWS IN THE BALANCE OF THIS
OPINION WE DEAL WITH THE MERITS OF THE PETITIONERS' CONTENTIONS AND
CONCLUDE THAT CONGRESS DID LEGISLATE AGAINST THE COMPETITION THAT THE
PETITIONERS CHALLENGE.  THERE CAN BE NO REAL QUESTION, THEREFORE, OF
THE PETITIONERS' STANDING IN THE LIGHT OF THE DATA PROCESSING CASE. 
SEE ALSO ARNOLD TOURS V. CAMP, 400 C.S. 45. 

        II 

THE ISSUE BEFORE US IS WHETHER THE COMPTROLLER OF THE CURRENCY MAY,
CONSISTENTLY WITH THE BANKING LAWS, AUTHORIZE A NATIONAL BANK TO OFFER
ITS CUSTOMERS THE OPPORTUNITY TO INVEST IN A STOCK FUND CREATED AND
MAINTAINED BY THE BANK.  BEFORE 1963 NATIONAL BANKS WERE PROHIBITED BY
ADMINISTRATIVE REGULATION FROM OFFERING THIS SERVICE.  THE BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM, WHICH UNTIL 1962 HAD
REGULATORY JURISDICTION OVER ALL THE TRUST ACTIVITIES OF NATIONAL
BANKS, ALLOWED THE COLLECTIVE INVESTMENT OF TRUST ASSETS ONLY FOR "THE
INVESTMENT OF FUNDS HELD FOR TRUE FIDUCIARY PURPOSES."  THE APPLICABLE
REGULATION, REGULATION F, SPECIFIED THAT "THE OPERATION OF SUCH COMMON
TRUST FUNDS AS INVESTMENT TRUSTS FOR OTHER THAN STRICTLY FIDUCIARY
PURPOSES IS HEREBY PROHIBITED."  THE BOARD CONSISTENTLY RULED THAT IT
WAS IMPROPER FOR A BANK TO USE "A COMMON TRUST FUND AS AN INVESTMENT
TRUST ATTRACTING MONEY SEEKING INVESTMENT ALONE AND TO EMBARK UPON WHAT
WOULD BE IN EFFECT THE SALE OF PARTICIPATIONS IN A COMMON TRUST FUND TO
THE PUBLIC AS INVESTMENTS."  26 FED.RESERVE BULL.  393 (1940); SEE ALSO
42 FED.RESERVE BULL.  228 (1956); 41 FED.RESERVE BULL.  142 (1955). 

IN 1962 CONGRESS TRANSFERRED JURISDICTION OVER MOST OF THE TRUST
ACTIVITIES OF NATIONAL BANKS FROM THE BOARD OF GOVERNORS OF THE FEDERAL
RESERVE SYSTEM TO THE COMPTROLLER OF THE CURRENCY, WITHOUT MODIFYING
ANY PROVISION OF SUBSTANTIVE LAW.  PUB. L. 87-722, 76 STAT. 668, 12
U.S.C. 92A.  THE COMPTROLLER THEREUPON SOLICITED SUGGESTIONS FOR
IMPROVING THE REGULATIONS APPLICABLE TO TRUS?  ACTIVITIES. 
SUBSEQUENTLY, NEW REGULATIONS WERE PROPOSED WHICH EXPRESSLY AUTHORIZED
THE COLLECTIVE INVESTMENT OF MONIES DELIVERED TO THE BANK FOR
INVESTMENT MANAGEMENT, SO-CALLED MANAGING AGENCY ACCOUNTS.  THESE
PROPOSED REGULATIONS WERE OFFICIALLY PROMULGATED IN 1963 WITH CHANGES
NOT MATERIAL HERE.  /7/  IN 1965 THE FIRST NATIONAL CITY BANK OF NEW
YORK SUBMITTED FOR THE COMPTROLLER'S APPROVAL A PLAN FOR THE COLLECTIVE
INVESTMENT OF MANAGING AGENCY ACCOUNTS.  THE COMPTROLLER PROMPTLY
APPROVED THE PLAN, AND IT IS NOW IN OPERATION.  THIS PLAN, WHICH
DEPARTS IN SOME RESPECTS FROM THE PLAN ENVISAGED BY THE COMPTROLLER'S
REGULATION, IS EXPECTED, THE BRIEFS TELL US, TO BE A MODEL FOR OTHER
BANKS WHICH DECIDE TO OFFER THEIR CUSTOMERS A COLLECTIVE INVESTMENT
SERVICE.  /8/ 

UNDER THE PLAN THE BANK CUSTOMER TENDERS BETWEEN $10,000 AND
$500,000 TO THE BANK, TOGETHER WITH AN AUTHORIZATION MAKING THE BANK
THE CUSTOMER'S MANAGING AGENT.  THE CUSTOMER'S INVESTMENT IS ADDED TO
THE FUND, AND A WRITTEN EVIDENCE OF PARTICIPATION IS ISSUED WHICH
EXPRESSES IN "UNITS OF PARTICIPATION" THE CUSTOMER'S PROPORTIONATE
INTEREST IN FUND ASSETS.  UNITS OF PARTICIPATION ARE FREELY REDEEMABLE,
AND TRANSFERABLE TO ANYONE WHO HAS EXECUTED A MANAGING AGENCY AGREEMENT
WITH THE BANK.  THE FUND IS REGISTERED AS AN INVESTMENT COMPANY UNDER
THE INVESTMENT COMPANY ACT OF 1940.  THE BANK IS THE UNDERWRITER OF THE
FUND'S UNITS OF PARTICIPATION WITHIN THE MEANING OF THAT ACT.  THE FUND
HAS FILED A REGISTRATION STATEMENT PURSUANT TO THE SECURITIES ACT OF
1933.  THE FUND IS SUPERVISED BY A FIVE-MEMBER COMMITTEE ELECTED
ANNUALLY BY THE PARTICIPANTS PURSUANT TO THE INVESTMENT COMPANY ACT OF
1940.  THE SECURITIES AND EXCHANGE COMMISSION HAS EXEMPTED THE FUND
FROM THE INVESTMEN?  COMPANY ACT TO THE EXTENT THAT A MAJORITY OF THIS
COMMITTEE MAY BE AFFILIATED WITH THE BANK, AND IT IS EXPECTED THAT A
MAJORITY ALWAYS WILL BE OFFICERS IN THE BANK'S TRUST AND INVESTMENT
DIVISION.  /9/  THE ACTUAL CUSTODY AND INVESTMENT OF FUND ASSETS IS
CARRIED OUT BY THE BANK AS INVESTMENT ADVISOR PURSUANT TO A MANAGEMENT
AGREEMENT.  ALTHOUGH THE ANVESTMENT COMPANY ACT REQUIRES THAT THIS
MANAGEMENT AGREEMENT BE APPROVED ANNUALLY BY THE COMMITTEE, INCLUDING A
MAJORITY OF THE UNAFFILIATED MEMBERS, OR BY THE PARTICIPANTS, IT IS
EXPECTED THAT THE BANK WILL CONTINUE TO BE INVESTMENT ADVISOR. 

 III 

SEVENTH, PROVIDES THAT THE "BUSINESS OF DEALING IN SECURITIES AND STOCK
(BY A NATIONAL BANK) SHALL BE LIMITED TO PURCHASING AND SELLING SUCH
SECURITIES AND STOCK WITHOUT RECOURSE, SOLELY UPON THE ORDER, AND FOR
THE ACCOUNT OF, CUSTOMERS, AND IN NO CASE FOR ITS OWN ACCOUNT . . . .
EXCEPT AS HEREINAFTER PROVIDED OR OTHERWISE PERMITTED BY LAW, NOTHING
HEREIN CONTAINED SHALL AUTHORIZE THE PURCHASE BY (A NATIONAL BANK) FOR
ITS OWN ACCOUNT OF ANY SHARES OF STOCK OF ANY CORPORATION."  /10/  THE
PETITIONERS CONTEND THAT A PURCHASE OF STOCK BY A BANK'S INVESTMENT
FUND IS A PURCHASE OF STOCK BY A BANK FOR ITS OWN ACCOUNT IN VIOLATION
OF THIS SECTION. 

ANY ISSUE OF SECURITIES OR STOCK."  AND SEC. 21 OF THE SAME ACT, 12
U.S.C. 378(A), PROVIDES THAT "IT SHALL BE UNLAWFUL-- (1) FOR ANY
PERSON, FIRM, CORPORATION ASSOCIATION, BUSINESS TRUST, OR OTHER SIMILAR
ORGANIZATION, ENGAGED IN THE BUSINESS OF ISSUING, UNDERWRITING,
SELLING, OR DISTRIBUTING, AT WHOLESALE OR RETAIL, OR THROUGH SYNDICATE
PARTICIPATION, STOCKS, BONDS, DEBENTURES, NOTES, OR OTHER SECURITIES,
TO ENGAGE AT THE SAME TIME TO ANY EXTENT WHATEVER IN THE BUSINESS OF
(DEPOSIT BANKIGN)."  THE PETITIONERS CONTEND THAT THE CREATION AND
OPERATION OF AN INVESTMENT FUND BY A BANK WHICH OFFERS TO ITS CUSTOMERS
THE OPPORTUNITY TO PURCHASE AN INTEREST IN THE FUND'S ASSETS
CONSTITUTES THE ISSUING, UNDERWRITING, SELLING, OR DISTRIBUTING OF
SECURITIES OR STOCKS IN VIOLATION OF THESE SECTIONS. 

THE QUESTIONS RAISED BY THE PETITIONERS ARE NOVEL AND SUBSTANTIAL. 
NATIONAL BANKS WERE GRANTED TRUST POWERS IN 1913.  FEDERAL RESERVE ACT,
SEC. 11, 38 STAT. 261.  THE FIRST COMMON TRUST FUND WAS ORGANIZED IN
1927, AND SUCH FUNDS WERE EXPRESSLY AUTHORIZED BY THE FEDERAL RESERVE
BOARD BY REGULATION F PROMULGATED IN 1937.  REPORT ON COMMINGLED OR
COMMON TRUST FUNDS ADMINISTERED BY BANKS AND TRUST COMPANIES, H.R. DOC.
NO. 476, 76TH CONG., 2D SESS., 4-5 (1939).  FOR AT LEAST A GENERATION,
THEREFORE, THERE HAS BEEN NO REASON TO DOUBT THAT A NATIONAL BANK CAN,
CONSISTENTLY WITH THE BANING LAWS, COMMINGLE TRUST FUNDS ON THE ONE
HAND, AND ACT AS A MANAGING AGENT ON THE OTHER.  NO PROVISION OF THE
BANKING LAW SUGGESTS THAT IT IS IMPROPER FOR A NATIONAL BANK TO POOL
TRUST ASSETS, OR TO ACT AS A MANAGING AGENT FOR INDIVIDUAL CUSTOMERS,
OR TO PURCHASE STOCK FOR THE ACCOUNT OF ITS CUSTOMERS.  BUT THE UNION
OF THESE POWERS GIVES BIRTH TO AN INVESTMENT FUND WHOSE ACTIVITIES ARE
OF A DIFFERENT CHARACTER.  THE DIFFERENCES BETWEEN THE INVESTMENT FUND
THAT THE COMPTROLLER HAS AUTHORIZED AND A CONVENTIONAL OPEN-END MUTUAL
FUND ARE SUBTLE AT BEST, AND IT IS UNDISPUTED THAT THIS BANK INVESTMENT
FUND FINDS ITSELF IN DIRECT COMPETITIONWITH THE MUTUAL FUND INDUSTRY. 
ONE WOULD SUPPOSE THAT THE BUSINESS OF A MUTUAL FUND CONSISTS OF BUYING
STOCK "FOR ITS OWN ACCOUNT" AND OF "ISSUING" AND "SELLING" "STOCK" OR
"OTHER SECURITIES" EVIDENCING AN UNDIVIDED AND REDEEMABLE INTEREST IN
THE ASSETS OF THE FUND.  /11/  ON THEIR FACE, SECS. 16 AND 21 OF THE
GLASS-STEAGALL ACT APPEAR CLEARLY TO PROHIBIT THIS ACTIVITY BY NATIONAL
BANKS.  /12/ 

BUT WE CANNOT COME LIGHTLY TO THE CONCLUSION THAT THE COMPTROLLER
HAS AUTHORIZED ACTIVITY THAT VIOLATES THE BANKING LAWS.  IT IS SETTLED
THAT COURTS SHOULD GIVE GREAT WEIGHT TO ANY REASONABLE CONSTRUCTION OF
A REGULATORY STATUTE ADOPTED BY THE AGENCY CHARGED WITH THE ENFORCEMENT
OF THAT STATUTE.  THE COMPTROLLER OF THE CURRENCY IS CHARGED WITH THE
ENFORCEMENT OF THE BANKING LAWS TO AN EXTENT THAT WARRANTS THE
INVOCATION OF THIS PRINCIPLE WITH RESPECT TO HIS DELIBERATIVE
CONCLUSIONS AS TO THE MEANING OF THESE LAWS.  SEE FIRST NATIONAL BANK
V. MISSOURI, 263 U.S. 640, 658. 

THE DIFFICULTY HERE IS THAT THE COMPTROLLER ADOPTED NO EXPRESSLY
ARTICULATED POSITION AT THE ADMINISTRATIVE LEVEL AS TO THE MEANING AND
IMPACT OF THE PROVISIONS OF SECS. 16 AND 21 AS THEY AFFECT BANK
INVESTMENT FUNDS.  THE COMPTROLLER PROMULGATED REGULATION 9 WITHOUT
OPINION OR ACCOMPANYING STATEMENT.  HIS SUBSEQUENT REPORT TO CONGRESS
DID NOT ADVERT TO THE PROHIBITIONS OF THE GLASS-STEAGALL ACT. 
COMPTROLLER OF THE CURRENCY, 101ST ANNUAL REPORT 14-15 (1963).  /13/
TO BE SURE, COUNSEL FOR THE COMPTROLLER IN THE COURSE OF THIS
LITIGATION, AND SPECIFICALLY IN HIS BRIEFS AND ORAL ARGUMENT IN THIS
COURT, HAS RATIONALIZED THE BASIS OF REGULATION 9 WITH GREAT
PROFESSIONAL COMPETENCE.  BUT THIS IS HARDLY TANTAMOUNT TO AN
ADMINISTRATIVE INTERPRETATION OF SECS. 16 AND 21.  IN BURLINGTON TRUCK
LINES V. UNITED STATES, 371 U.S. 156, WE SAID, "THE COURTS MAY NOT
ACCEPT APPELLATE COUNSEL'S POST HOC RATIONALIZATIONS FOR AGENCY ACTION
. . . . FOR THE COURTS TO SUBSTITUTE THEIR OR COUNSEL'S DISCRETION FOR
THAT OF THE (AGENCY) IS INCOMPATIBLE WITH THE ORDERLY FUNCTIONING OF
THE PROCESS OF JUDICIAL REVIEW."  ID., AT 168-169.  CONGRESS HAS
DELEGATED TO THE ADMINISTRATIVE OFFICIAL AND NOT TO APPELLATE COUNSEL
THE RESPONSIBILITY FOR ELABORATING AND ENFORCING STATUTORY COMMANDS. 
IT IS THE ADMINISTRATIVE OFFICIAL AND NOT APPELLATE COUNSEL WHO
PSOSESSES THE EXPERTISE THAT CAN ENLIGHTEN AND RATIONALIZE THE SEARCH
FOR THE MEANING AND INTENT OF CONGRESS.  QUITE OBVIOUSLY THE
COMPTROLLER SHOULD NOT GRANT NEW AUTHORITY TO NATIONAL BANKS UNTIL HE
IS SATISFIED THAT THE EXERCISE OF THIS AUTHORITY WILL NOT VIOLATE THE
INTENT OF THE BANKING LAWS.  IF HE FACES SUCH QUESTIONS ONLY AFTER HE
HAS ACTED, THERE IS SUBSTANTIAL DANGER THAT THE MOMENTUM GENERATED BY
INITIAL APPROVAL MAY SERIOUSLY IMPAIR THE ENFORCEMENT OF THE BANKING
LAWS THAT CONGRESS ENACTED.  IV 

THERE IS NO DISPUTE THAT ONE OF THE OBJECTIVES OF THE GLASS-STEAGALL
ACT WAS TO PROHIBIT COMMERCIAL BANKS, BANKS THAT RECEIVE DEPOSITS
SUBJECT TO REPAYMENT, LEND MONEY, DISCOUNT AND NEGOTIATE PROMISSORY
NOTES AND THE LIKE, FROM GOING INTO THE INVESTMENT BANKING BUSINESS. 
MANY COMMERCIAL BANKS WERE INDIRECTLY ENGAGED IN THE INVESTMENT BANKING
BUSINESS WHEN THE ACT WAS PASSED IN 1933.  EVEN BEFORE THE PASSAGE OF
THE ACT IT WAS GENERALLY BELIEVED THAT IT WAS IMPROPER FOR A COMMERCIAL
BANK TO ENGAGE IN INVESTMENT BANKING DIRECTLY.  /14/  BUT IN 1908 BANKS
BEGAN THE PRACTICE OF ESTABLISHING SECURITY AFFILIATES THAT ENGAGED IN,
INTER ALIA, THE BUSINESS OF FLOATING BOND ISSUES AND, LESS FREQUENTLY,
UNDERWRITING STOCK ISSUES.  /15/  THE GLASS-STEAGALL ACT CONFIRMED THAT
NATIONAL BANKS COULD NOT ENGAGE IN INVESTMENT BANKING DIRECTLY, AND IN
ADDITION MADE AFFILIATION WITH AN ORGANIZATION SO ENGAGED ILLEGAL.  ONE
EFFECT OF THE ACT WAS TO ABOLISH THE SECURITY AFFILIATES OF COMMERCIAL
BANKS.  /16/ 

IT IS APPARENT FROM THE LEGISLATIVE HISTORY OF THE ACT WHY CONGRESS
FELT THAT THIS DRASTIC STEP WAS NECESSARY.  THE FAILURE OF THE BANK OF
UNITED STATES IN 1930 WAS WIDELY ATTRIBUTED TO THAT BANK'S ACTIVITIES
WITH RESPECT TO ITS NUMEROUS SECURITIES AFFILIATES.  /17/  MOREOVER,
CONGRESS WAS CONCERNED THAT COMMERCIAL BANKS IN GENERAL AND MEMBER
BANKS OF THE FEDERAL RESERVE SYSTEM IN PARTICULAR HAD BOTH AGGRAVATED
AND BEEN DAMAGED BY STOCK MARKET DECLINE PARTLY BECAUSE OF THEIR DIRECT
AND INDIRECT INVOLVEMENT IN THE TRADING AND OWNERSHIP OF SPECULATIVE
SECURITIES.  /18/  THE GLASS-STEAGALL ACT REFLECTED A DETERMINATION
THAT POLICIES OF COMPETITION, CONVENIENCE, OR EXPERTISE WHICH MIGHT
OTHERWISE SUPPORT THE ENTRY OF COMMERCIAL BANKS INTO THE INVESTMENT
BANKING BUSINESS WERE OUTWEIGHED BY THE "HAZARDS" AND "FINANCIAL
DANGERS" THAT ARISE WHEN COMMERCIAL BANKS ENGAGE IN THE ACTIVITIES
PROSCRIBED BY THE ACT.  /19/ 

THE HAZARDS THAT CONGRESS HAD IN MIND WERE NOT LIMITED TO THE
OBVIOUS DANGER THAT A BANK MIGHT INVEST ITS OWN ASSETS IN FROZEN OR
OTHERWISE IMPRUDENT STOCK OR SECURITY INVESTMENTS.  FOR OFTEN
SECURITIES AFFILIATES HAD OPERATED WITHOUT DIRECT ACCESS TO THE ASSETS
OF THE BANK.  THIS WAS BECAUSE SECURITIES AFFILIATES HAD FREQUENTLY
BEEN ESTABLISHED WITH CAPITAL PAID IN BY THE BANK'S STOCKHOLDERS, OR BY
THE PUBLIC, OR THROUGH THE ALLOCATION OF A LEGAL DIVIDEND ON BANK STOCK
FOR THIS PURPOSE.  /20/  THE LEGISLATIVE HISTORY OF THE GLASS-STEAGALL
ACT SHOWS THAT CONGRESS ALSO HAD IN MIND AND REPEATEDLY FOCUSED ON THE
MORE SUBTLE HAZARDS THAT ARISE WHEN A COMMERCIAL BANK GOES BEYOND THE
BUSINESS OF ACTING AS FIDUCIARY OR MANAGING AGENT AND ENTERS THE
INVESTMENT BANKING BUSINESS EITHER DIRECTLY OR BY ESTABLISHING AN
AFFILIATE TO HOLD AND SELL PARTICULAR INVESTMENTS.  THIS COURSE PLACES
NEW PROMOTIONAL AND OTHER PRESSURES ON THE BANK WHICH IN TURN CREATE
NEW TEMPTATIONS.  FOR EXAMPLE, PRESSURES ARE CREATED BECAUSE THE BANK
AND THE AFFILIATE ARE CLOSELY ASSOCIATED IN THE PUBLIC MIND, AND SHOULD
THE AFFILIATE FARE BADLY, PUBLIC CONFIDENCE IN THE BANK MIGHT BE
IMPAIRED.  AND SINCE PUBLIC CONFIDENCE IS ESSENTIAL TO THE SOLVENCY OF
A BANK, THERE MIGHT EXIST A NATURAL TEMPTATION TO SHORE UP THE
AFFILIATE THROUGH UNSOUND LOANS OR OTHER AID.  /21/  MOREOVER, THE
PRESSURE TO SELL A PARTICULAR INVESTMENT AND TO MAKE THE AFFILIATE
SUCCESSFUL MIGHT CREATE A RISK THAT THE BANK WOULD MAKE ITS CREDIT
FACILITIES MORE FREELY AVAILABLE TO THOSE COMPANIES IN WHOSE STOCK OR
SECURITIES THE AFFILIATE HAS INVESTED OR BECOME OTHERWISE INVOLVED. 
CONGRESS FEARED THAT BANKS MIGHT EVEN GO SO FAR AS TO MAKE UNSOUND
LOANS TO SUCH COMPANIES.  /22/  IN ANY EVENT, IT WAS THOUGHT THAT THE
BANK'S SALESMAN'S INTEREST MIGHT IMPAIR ITS ABILITY TO FUNCTION AS AN
IMPARTIAL SOURCE OF CREDIT.  /23/ 

CONGRESS WAS ALSO CONCERNED THAT BANK DEPOSITORS MIGHT SUFFER LOSSES
ON INVESTMENTS THAT THEY PURCHASED IN RELIANCE ON THE RELATIONSHIP
BETWEEN THE BANK AND ITS AFFILIATE.  /24/  THIS LOSS OF CUSTOMER GOOD
WILL MIGHT "BECOME AN IMPORTANT HANDICAP TO A BANK DURING A MAJOR
PERIOD OF SECURITY MARKET DELFATION."  /25/  MORE BROADLY, CONGRESS
FEARED THAT THE PROMITIONAL NEEDS OF INVESTMENT BANKING MIGHT LEAD
COMMERCIAL BANKS TO LEND THEIR REPUTATION FOR PRUDENCE AND RESTRAINT TO
THE ENTERPRISE OF SELLING PARTICULAR STOCKS AND SECURITIES, AND THAT
THIS COULD NOT BE DONE WITHOUT THAT REPUTATION BEING UNDERCUT BY THE
RISKS NECESSARILY INCIDENT TO THE INVESTMENT BANKING BUSINESS.  /26/
THERE WAS ALSO PERCEIVED THE DANGER THAT WHEN COMMERCIAL BANKS WERE
SUBJECT TO THE PROMOTIONAL DEMANDS OF INVESTMENT BANKING, THEY MIGHT BE
TEMPTED TO MAKE LOANS TO CUSTOMERS WITH THE EXPECTATION THAT THE LOAN
WOULD FACILITATE THE PURCHASE OF STOCKS AND SECURITIES.  /27/  THERE
WAS EVIDENCE BEFORE CONGRESS THAT LOANS FOR INVESTMENT WRITTEN BY
COMMERCIAL BANKS HAD DONE MUCH TO FEED THE SPECULATIVE FEVER OF THE
LATE 1920'S.  /28/  SENATOR GLASS MADE IT PLAIN THAT IT WAS "THE FIXED
PURPOSE OF CONGRESS" NOT TO SEE THE FACILITIES OF COMMERCIAL BANKING
DIVERTED INTO SPECULATIVE OPERATIONS BY THE AGGRESSIVE AND PROMOTIONAL
CHARACTER OF THE INVESTMENT BANKING BUSINESS.  /29/ 

ANOTHER POTENTIAL HAZARD THAT VERY MUCH CONCERNED CONGRESS AROSE
FROM THE PLAIN CONFLICT BETWEEN THE PROMOTIONAL INTEREST OF THE
INVESTMENT BANKER AND THE OBLIGATION OF THE COMMERCIAL BANKER TO RENDER
DISINTERESTED INVESTMENT ADVICE.  SENATOR BULKLEY STATED: 

     "OBVIOUSLY, THE BANKER WHO HAS NOTHING TO SELL TO HIS

  DEPOSITORS IS MUCH BETTER QUALIFIED TO ADVISE DISINTERESTEDLY AND

  TO REGARD DILIGENTLY THE SAFETY OF DEPOSITORS THAN THE BANKER WHO

USES THE LIST OF DEPOSITORS IN HIS SAVINGS DEPARTMENT TO

DISTRIBUTE CIRCULARS CONCERNING THE ADVANTAGES OF THIS, THAT, OR

  THE OTHER INVESTMENT ON WHICH THE BANK IS TO RECEIVE AN

  ORIGINATING PROFIT OR AN UNDERWRITING PROFIT OR A DISTRIBUTION

  PROFIT OR A TRADING PROFIT OR ANY COMBINATION OF SUCH PROFITS." 

  /30/ 

CONGRESS HAD BEFORE IT EVIDENCE THAT SECURITY AFFILIATES MIGHT BE
DRIVEN TO UNLOAD EXCESSIVE HOLDINGS THROUGH THE TRUST DEPARTMENT OF THE
SPONSOR BANK.  /31/  SOME WITNESSES AT THE HEARINGS EXPRESSED THE VIEW
THAT THIS PRACTICE CONSTITUTED SELF-DEALING IN VIOLATION OF THE
TRUSTEE'S OBLIGATION OF LOYALTY, AND INDEED THAT IT WOULD BE IMPROPER
FOR A BANK'S TRUST DEPARTMENT TO PURCHASE ANYTHING FROM THE BANK'S
SECURITIES AFFILIATE.  /32/ 

IN SUM, CONGRESS ACTED TO KEEP COMMERCIAL BANKS OUT OF THE
INVESTMENT BANKING BUSINESS LARGELY BECAUSE IT BELIEVED THAT THE
PROMOTIONAL INCENTIVES OF INVESTMENT BANKING AND THE INVESTMENT
BANKER'S PECUNIARY STAKE IN THE SUCCESS OF PARTICULAR INVESTMENT
OPPORTUNITIES WAS DESTRUCTIVE OF PRUDENT AND IDSINTERESTED COMMERCIAL
BANKING AND OF PUBLIC CONFIDENCE IN THE COMMERCIAL BANKING SYSTEM.  AS
SENATOR BULKLEY PUT IT: 

"IF WE WANT BANKING SERVICE TO BE STRICTLY BANKING SERVICE, WITHOUT
THE EXPECTATION OF ADDITIONAL PROFITS IN SELLING SOMETHING TO
CUSTOMERS, WE MUST KEEP THE BANKS OUT OF THE INVESTMENT SECURITY
BUSINESS."  /33/

        V 

THE LANGUAGE THAT CONGRESS CHOSE TO ACHIEVE THIS PURPOSE INCLUDES THE
PROHIBITIONS OF SEC. 16 THAT A NATIONAL BANK "SHALL NOT UNDERWRITE ANY
ISSUE OF SECURITIES OR STOCK" AND SHALL NOT PURCHASE "FOR ITS OWN
ACCOUNT . . . ANY SHARES OF STOCK OF ANY CORPORATION," AND THE
PROHIBITION OF SEC. 21 AGAINST ENGAGING IN "THE BUSINESS OF ISSUING,
UNDERWRITING, SELLING, OR DISTRIBUTING . . . STOCKS, BONDS, DEBENTURES,
NOTES, OR OTHER SECURITIES."  IN THIS LITIGATION THE COMPTROLLER TAKES
THE POSITION THAT THE OPERATION OF A BANK INVESTMENT FUND IS CONSISTENT
WITH THESE PROVISIONS, BECAUSE PARTICIPATING INTERESTS IN SUCH A FUND
ARE NOT "SECURITIES" WITHIN THE MEANING OF THE ACT.  IT IS ARGUED THAT
A BANK INVESTMENT FUND SIMPLY MAKES AVAILABLE TO THE SMALL INVESTOR THE
BENEFIT OF INVESTMENT MANAGEMENT BY A BANK TRUST DEPARTMENT WHICH WOULD
OTHERWISE BE AVAILABLE ONLY TO LARGE INVESTORS, AND THAT THE OPERATION
OF AN INVESTMENT FUND CREATES NO PROBLEMS THAT ARE NOT PRESENT WHENEVER
A BANK INVESTS IN SECURITIES FOR THE ACCOUNT OF CUSTOMERS. 

BUT THERE IS NOTHING IN THE PHRASING OF EITHER SEC. 16 OR SEC. 21
THAT SUGGESTS A NARROW READING OF THE WORD "SECURITIES."  TO THE
CONTRARY, THE BREADTH OF THE TERM IS IMPLICIT IN THE FACT THAT THE
ANTECEDENT STATUTORY LANGUAGE ENCOMPASSES NOT ONLY EQUITY SECURITIES
BUT ALSO SECURITIES REPRESENTING DEBT.  AND CERTAINLY THERE IS NOTHING
IN THE LANGUAGE OF THESE PROVISIONS TO SUGGEST THAT THE SALE OF AN
INTEREST IN THE BUSINESS OF BUYING, HOLDING, AND SELLING STOCKS FOR
INVESTMENT IS TO BE DISTINGUISHED FROM THE SALE OF AN INTEREST IN A
COMMERCIAL OF INDUSTRIAL ENTERPRISE. 

INDEED, THERE IS DIRECT EVIDENCE THAT CONGRESS SPECIFICALLY
CONTEMPLATED THAT THE WORD "SECURITY" INCLUDES AN INTEREST IN AN
INVESTMENT FUND.  THE GLASS-STEAGALL ACT WAS THE PRODUCT OF HEARINGS
CONDUCTED PURSUANT TO SENATE RESOLUTION 71 WHICH INCLUDED AMONG THE
TOPICS TO BE INVESTIGATED THE IMPACT ON THE BANKING SYSTEM OF THE
FORMATION OF INVESTMENT AND SECURITY TRUSTS.  /34/  THE SUB-COMMITTEE
FOUND THAT ONE OF THE ACTIVITIES IN WHICH BANK SECURITY AFFILIATES
ENGAGED WAS THAT OF AN INVESTMENT TRUST:  "BUYING AND SELLING
SECURITIES ACQUIRED PURELY FOR INVESTMENT OR SPECULATIVE PURPOSES." 
/35/  SINCE CONGRESS GENERALLY INTENDED TO DIVORCE COMMERCIAL BANKING
FROM THE KINDS OF ACTIVITIES IN WHICH BANK SECURITY AFFILIATES ENGAGED,
THERE IS REASON TO BELIEVE THAT CONGRESS EXPLICITLY INTENDED TO
PROHIBIT A NATIONAL BANK FROM OPERATING AN INVESTMENT TRUST.  /36/ 

BUT, IN ANY EVENT, WE ARE PERSUADED THAT THE PURPOSES FOR WHICH
CONGRESS ENACTED THE GLASS-STEAGALL ACT LEAVE NO ROOM FOR THE
CONCLUSION THAT A PARTICIPATION IN A BANK INVESTMENT FUND IS NOT A
"SECURITY" WITHIN THE MEANING OF THE ACT.  FROM THE PERSPECTIVE OF
COMPETITION, CONVENIENCE, AND EXPERTISE, THERE ARE ARGUMENTS TO BE MADE
IN SUPPORT OF ALLOWING COMMERCIAL BANKS TO ENTER THE INVESTMENT BANKING
BUSINESS.  BUT CONGRESS DETERMINED THAT THE HAZARDS OUTLINED ABOVE MADE
IT NECESSARY TO PROHIBIT THIS ACTIVITY TO COMMERCIAL BANKS.  THOSE SAME
HAZARDS ARE CLEARLY PRESENT WHEN A BANK UNDERTAKES TO OPERATE AN
INVESTMENT FUND. 

A BANK THAT OPERATES AN INVESTMENT FUND HAS A PARTICULAR INVESTMENT
TO SELL.  IT IS NOT A MATTER OF INDIFFERENCE TO THE BANK WHETHER THE
CUSTOMER BUYS AN INTEREST IN THE FUND OR MAKES SOME OTHER INVESTMENT. 
IF ITS CUSTOMERS CANNOT BE PERSUADED TO INVEST IN THE BANK'S INVESTMENT
FUND, THE BANK WILL LOSE THEIR INVESTMENT BUSINESS AND THE FEE WHICH
THAT BUSINESS WOULD HAVE BROUGHT IN.  EVEN AS TO ACCOUNTS LARGE ENOUGH
TO QUALIFY FOR INDIVIDUAL INVESTMENT MANAGEMENT, THERE MIGHT BE A
POTENTIAL FOR A GREATER PROFIT IF THE INVESTMENT WERE PLACED IN THE
FUND RATHER THAN IN INDIVIDUALLY SELECTED SECURITIES, BECAUSE OF FIXED
COSTS AND ECONOMIES OF SCALE.  THE MECHANICS OF OPERATING AN INVESTMENT
FUND MIGHT ALSO CREATE PROMOTIONAL PRESSURE.  WHEN INTERESTS IN THE
FUND WERE REDEEMED, THE BANK WOULD BE EFFECTIVELY FACED WITH THE CHOISE
OF SELLING STOCKS FROM THE FUND'S PORTFOLIO OR OF SELLING NEW
PARTICIPATIONS TO COVER REDEMPTIONS.  THE BANK MIGHT HAVE A PECUNIARY
INCENTIVE TO CHOOSE THE LATTER COURSE IN ORDER TO AVOID THE COST OF
STOCK TRANSACTIONS UNDERTAKEN SOLELY FOR REDEMPTION PURPOSES. 

PROMOTIONAL INCENTIVES MIGHT ALSO BE CREATED BY THE CIRCUMSTANCE
THAT THE BANK'S FUND WOULD BE IN DIRECT COMPETITION WITH MUTUAL FUNDS
THAT, FROM THE POINT OF VIEW OF THE INVESTOR, OFFERED AN INVESTMENT
OPPORTUNITY COMPARABLE TO THAT OFFERED BY THE BANK.  THE BANK WOULD
WANT TO BE IN A POSITION TO SHOW TO THE PROSPECTIVE CUSTOMER THAT ITS
FUND WAS MORE ATTRACTIVE THAN THE MUTUAL FUNDS OFFERED BY OTHERS.  THE
BANK WOULD HAVE A SALESMAN'S STAKE IN THE PERFORMANCE OF THE FUND, FOR
IF THE FUND WERE LESS SUCCESSFUL THAN THE COMPETITION THE BANK WOULD
LOSE BUSINESS AND THE RESULTING FEES. 

A BANK THAT OPERATED AN INVESTMENT FUND WOULD NECESSARILY PUT ITS
REPUTATION AND FACILITIES SQUARELY BEHIND THAT FUND AND THE INVESTMENT
OPPORTUNITY THAT THE FUND OFFERED.  THE INVESTMENTS OF THE FUND MIGHT
BE CONSERVATIVE OR SPECULATIVE, BUT IN ANY EVENT THE SUCCESS OR FAILURE
OF THE FUND WOULD BE A MATTER OF PUBLIC RECORD.  IMPRUDENT OR
UNSUCCESSFUL MANAGEMENT OF THE BANK'S INVESTMENT FUND COULD BRING ABOUT
A PERHAPS UNJUSTIFIED LOSS OF PUBLIC CONFIDENCE IN THE BANK ITSELF.  IF
IMPRUDENT MANAGEMENT SHOULD PLACE THE FUND IN DISTRESS, A BANK MIGHT
FIND ITSELF UNDER PRESSURE TO RESCUE THE FUND THROUGH MEASURES
INCONSISTENT WITH SOUND BANKING. 

THE PROMOTIONAL AND OTHER PRESSURES INCIDENTAL TO THE OPERATION OF
AN INVESTMENT FUND, IN OTHER WORDS, INVOLVE THE SAME KINDS OF POTENTIAL
ABUSES THAT CONGRESS INTENDED TO GUARD AGAINST WHEN IT LEGISLATED
AGAINST BANK SECURITY AFFILIATES.  IT IS NOT THE SLIGHTEST REFLECTION
ON THE INTEGRITY OF THE MUTUAL FUND INDUSTRY TO SAY THAT THE TRADITIONS
OF THAT INDUSTRY ARE NOT NECESSARILY THE CONSERVATIVE TRADITIONS OF
COMMERCIAL BANKING.  THE NEEDS AND INTEREST OF A MUTUAL FUND ENTERPRISE
MORE NEARLY APPROXIMATE THOSE OF SECURITIES UNDERWRITING THE ACTIVITY
IN WHICH BANK SECURITY AFFILIATES WERE PRIMARILY ENGAGED.  WHEN A BANK
PUTS ITSELF IN COMPETITIONWITH MUTUAL FUNDS, THE BANK MUST MAKE AN
ACCOMMODATION TO THE KIND OF GROUND RULES THAT CONGRESS FIRMLY
CONCLUDED COULD NOT BE PRUDENTLY MIXED WITH THE BUSINESS OF COMMERCIAL
BANKING.     AND THERE ARE OTHER POTENTIAL HAZARDS OF THE KIND CONGRESS
SOUGHT TO ELIMIATE WITH THE PASSAGE OF THE GLASS-STEAGALL ACT.  THE
BANK'S STAKE IN THE INVESTMENT FUND MIGHT DISTORT ITS CREDIT DECISIONS
OR LEAD TO UNSOUND LOANS TO THE COMPANIES IN WHICH THE FUND HAD
INVESTED.  THE BANK MIGHT EXPLOIT ITS CONFIDENTIAL RELATIONSHIP WITH
ITS COMMERCIAL AND INDUSTRIAL CREDITORS FOR THE BENEFIT OF THE FUND. 
THE BANK MIGHT UNDERTAKE, DIRECTLY OR INDIRECTLY, TO MAKE ITS CREDIT
FACILITIES AVAILABLE TO THE FUND OR TO RENDER OTHER AID TO THE FUND
INCONSISTENT WITH THE BEST INTERESTS OF THE BANK'S DEPOSITORS.  THE
BANK MIGHT MAKE LOANS TO FACILITATE THE PURCHASE OF INTERESTS IN THE
FUND.  THE BANK MIGHT DIVERT TALENT AND RESOURCES FROM ITS COMMERCIAL
BANKING OPERATION TO THE PROMOTION OF THE FUND.  MOREOVER, BECAUSE THE
BANK WOULD HAVE A STAKE IN A CUSTOMER'S MAKING A PARTICULAR INVESTMENT
DECISION-- THE DECISION TO INVEST IN THE BANK'S INVESTMENT FUND-- THE
CUSTOMER MIGHT DOUBT THE MOTIVATION BEHIND THE BANK'S RECOMMENDATION
THAT HE MAKE SUCH AN INVESTMENT.  IF THE FUND INVESTMENT SHOULD TURN
OUT BADLY THERE WOULD BE A DANGER THAT THE BANK WOULD LOSE THE GOOD
WILL OF THOSE CUSTOMERS WHO HAD INVESTED IN THE FUND.  IT MIGHT BE
UNLIKELY THAT DISENCHANTMENT WOULD GO SO FAR AS TO THREATEN THE
SOLVENCY OF THE BANK.  BUT BECAUSE BANKS ARE DEPENDENT ON THE
CONFIDENCE OF THEIR CUSTOMERS, THE RISK WOULD NOT BE UNREAL. 

THESE ARE ALL HAZARDS THAT ARE NOT PRESENT WHEN A BANK UNDERTAKES TO
PURCHASE STOCK FOR THE ACCOUNT OF ITS INDIVIDUAL CUSTOMERS OR TO
COMMINGLE ASSETS WHICH IT HAS RECEIVED FOR A TRUE FIDUCIARY PURPOSE
RATHER THAN FOR INVESTMENT.  THESE ACTIVITIES, UNLIKE THE OPERATION OF
AN INVESTMENT FUND, DO NOT GIVE RISE TO A PROMOTIONAL OR SALESMAN'S
STAKE IN A PARTICULAR INVESTMENT; THEY DO NOT INVOLVE AN ENTERPRISE IN
DIRECT COMPETITION WITH AGGRESSIVELY PROMOTED FUNDS OFFERED BY OTHER
INVESTMENT COMPANIES; THEY DO NOT ENTAIL A THREAT TO PUBLIC CONFIDENCE
IN THE BANK ITSELF; AND THEY DO NOT IMPAIR THE BANK'S ABILITY TO GIVE
DISINTERESTED SERVICE AS A FIDUCIARY OR MANAGING AGENT.  IN SHORT,
THERE IS A PLAIN DIFFERENCE BETWEEN THE SALE OF FIDUCIARY SERVICES AND
THE SALE OF INVESTMENTS.  /37/

        VI 

THE GLASS-STEAGALL ACT WAS A PROPHYLACTIC MEASURE DIRECTED AGAINST
CONDITIONS THAT THE EXPERIENCE OF THE 1920'S SHOWED TO BE GREAT
POTENTIALS FOR ABUSE.  THE LITERAL TERMS OF THAT ACT CLEARLY PREVENT
WHAT THE COMPTROLLER HAS SOUGHT TO AUTHORIZE HERE.  BECAUSE THE
POTENTIAL HAZARDS AND ABUSES THAT FLOW FROM A BANK'S ENTRY INTO THE
MUTUAL INVESTMENT BUSINESS ARE THE SAME BASIC HAZARDS AND ABUSES THAT
CONGRESS INTENDED TO ELIMINATE ALMOST 40 YEARS AGO, WE CANNOT BUT APPLY
THE TERMS OF THE FEDERAL STATUTE AS THEY WERE WRITTEN.  WE CONCLUDE
THAT THE OPERATION OF AN INVESTMENT FUND OF THE KIND APPROVED BY THE
COMPTROLLER INVOLVES A BANK IN THE UNDERWRITING, ISSUING, SELLING, AND
DISTRIBUTING OF SECURITIES IN VIOLATION OF SECS. 16 AND 21 OF THE GLASS
STEAGALL ACT.  ACCORDINGLY, WE REVERSE THE JUDGMENT IN NO. 61 AND
VACATE THE JUDGMENT IN NO. 59. 

              IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 59, NATIONAL ASSOCIATION OF SECURITIES
DEALERS, INC. V. SECURITIES AND EXCHANGE COMMISSION ET AL., ARGUED
DECEMBER 14-15, 1970, ALSO ON CERTIORARI TO THE SAME COURT. 

/1A/  12 CFR PT. 9 (1970). 

/2/  THE PROVISIONS OF THE GLASS-STEAGALL ACT ARE CODIFIED IN
VARIOUS SECTIONS SCATTERED THROUGH TITLE 12 OF THE UNITED STATES CODE. 

/3/  THE EXEMPTION WAS GRANTED IN RESPONSE TO AN APPLICATION FILED
PURSUANT TO SEC. 6(C) OF THE ACT, 54 STAT. 802, 15 U.S.C. 80A-6(C). 

/4/  274 F.SUPP.  624. 

/5/  136 U.S.APP.D.C. 241, 420 F.2D 83. 

/6/  397 U.S. 986. 

/7/  12 CFR 9.18(A) PROVIDES THAT:  "WHERE NOT IN CONTRAVENTION OF
LOCAL LAW, FUNDS HELD BY A NATIONAL BANK AS FIDUCIARY MAY BE INVESTED
COLLECTIVELY:  . . . (3) IN A COMMON TRUST FUND, MAINTAINED BY THE BANK
EXCLUSIVELY FOR THE COLLECTIVE INVESTMENT AND REINVESTMENT OF MONIES
CONTRIBUTED THERETO BY THE BANK IN ITS CAPACITY AS MANAGING AGENT UNDER
A MANAGING AGENCY AGREEMENT EXPRESSLY PROVIDING THAT SUCH MONIES ARE
RECEIVED BY THE BANK IN TRUST . . . . " 

/8/  FOR EXAMPLE, THE INVESTMENT FUND PLAN AS ESTABLISHED DOES NOT
PROVIDE THAT THE BANK RECEIVES THE INVESTOR'S MONEY IN TRUST. 

/9/  THE OPINION OF THE COMMISSION AND THE DISSENT OF COMMISSIONER
BUDGE ARE UNOFFICIALLY REPORTED AT CCH FED. SEC. L. REP., 1964-1966
DECISIONS, PARA. 77,332. 

/10/  SECTION 16, AS ENACTED IN 1933, GRANTED NO AUTHORITY TO
PURCHASE STOCK FOR THE ACCOUNT OF CUSTOMERS AND PROHIBITED ANY PURCHASE
OF STOCK BY A NATIONAL BANK.  THE 1935 AMENDMENTS TO THE NATIONAL BANK
ACT INCLUDED A PROVISION INTENDED TO MAKE IT CLEAR THAT A NATIONAL BANK
MAY BUY STOCK FOR THE ACCOUNT OF CUSTOMERS BUT NOT FOR ITS OWN
ACCOUNT.  S. REP. NO. 1007, 74TH CONG., 1ST SESS., 17; H.R. REP. NO.
742, 74TH CONG., 1ST SESS., 18. 

/11/  A MUTUAL FUND IS AN OPEN-END INVESTMENT COMPANY.  THE
INVESTMENT COMPANY ACT OF 1940 DEFINES AN INVESTMENT COMPANY AS AN
"ISSUER" OF "ANY SECURITY" WHICH "IS OR HOLDS ITSELF OUT AS BEING
ENGAGED PRIMARILY . . . IN THE BUSINESS OF INVESTING . . . IN
SECURITIES . . . "  15 U.S.C. 80A-2(1)(21), 80A-3(A)(1).  AN OPEN-END
COMPANY IS ONE "WHICH IS OFFERING FOR SALE OR HAS OUTSTANDING ANY
REDEEMABLE SECURITY OF WHICH IT IS THE ISSUER."  15 U.S.C. 80A
5(A)(1).  AN INVESTMENT COMPANY ALSO INCLUDES A "UNIT INVESTMENT
TRUST":  AN INVESTMENT COMPANY WHICH, AMONG OTHER THINGS, "IS ORGANIZED
UNDER A . . . CONTRACT OF . . . AGENCY . . . AND . . . ISSUES ONLY
REDEEMABLE SECURITIES, EACH OF WHICH REPRESENTS AN UNDIVIDED INTEREST
IN A UNIT OF SPECIFIED SECURITIES . . . . "  15 U.S.C. 80A-4(2). 

/12/  SECTION 20 OF THE ACT, 12 U.S.C. 377, PROHIBITS AFFILIATIONS
BETWEEN BANKS THAT ARE MEMBERS OF THE FEDERAL RESERVE SYSTEM AND
ORGANIZATIONS "ENGAGED PRINCIPALLY IN THE ISSUE, FLOTATION,
UNDERWRITING, PUBLIC SALE, OR DISTRIBUTION AT WHOLESALE OR RETAIL OR
THROUGH SYNDICATE PARTICIPATION OF STOCKS, BONDS, DEBENTURES, NOTES, OR
OTHER SECURITES . . . . "  AND SEC. 32, 12 U.S.C. 78, PROVIDES THAT NO
OFFICER, DIRECTOR, OR EMPLOYEE OF A BANK IN THE FEDERAL RESERVE SYSTEM
MAY SERVE AT THE SAME TIME AS OFFICER, DIRECTOR, OR EMPLOYEE OF AN
ASSOCIATION PRIMARILY ENGAGED IN THE ACTIVITY DESCRIBED IN SEC. 20. 
THE PETITIONERS CONTEND THAT IF A BANK'S INVESTMENT FUND BE CONCEIVED
AS AN ENTITY DISTINCT FROM THE BANK, THEN ITS AFFILIATION WITH THE
INVESTMENT FUND IS IN VIOLATION OF THESE SECTIONS. 

THE BOARD OF GOVERNORS HAS HAD OCCASION TO CONSIDER WHETHER AN
INVESTMENT FUND OF THE TYPE OPERATED BY FIRST NATIONAL CITY BANK
INVOLVES A VIOLATION OF SEC. 32 OF THE GLASS-STEAGALL ACT.  12 CFR
218.111 (1970).  THE BOARD CONCLUDED, BASED ON "GENERAL PRINCIPLES THAT
HAVE BEEN DEVELOPED IN RESPECT TO THE APPLICATION OF SECTION 32," THAT
IT WOULD NOT VIOLATE THAT SECTION FOR OFFICERS OF THE BANK'S TRUST
DEPARTMENT TO SERVE AT THE SAME TIME AS OFFICERS OF THE BANK'S TRUST
DEPARTMENT TO SERVE AT THE SAME TIME AS OFFICERS OF THE INVESTMENT FUND
BECAUSE THE FUND AND THE BANK "CONSTITUTE A SINGLE ENTITY," AND THE
FUND "WOULD BE REGARDED AS NOTHING MORE THAN AN ARM OR DEPARTMENT OF
THE BANK."  THE BOARD CALLED ATTENTION TO SEC. 21 WHOSE PROVISIONS IT
SUMMARIZED AS FORBIDDING "A SECURITIES FIRM OR ORGANIZATION TO ENGAGE
IN THE BUSINESS OF RECEIVING DEPOSITS, SUBJECT TO CERTAIN EXCEPTIONS." 
THE BOARD, HOWEVER, DECLINED TO EXPRESS A POSITION CONCERNING THE
APPLICABILITY OF THIS SECTION BECAUSE OF ITS POLICY NOT TO EXPRESS
VIEWS AS TO THE MEANING OF STATUTES THAT CARRY CRIMINAL PENALTIES.  NOR
HAS THE BOARD EXPRESSED ITS VIEWS ON THE APPLICATION OF ANY OTHER
PROVISION OF THE BANKING LAW TO THE CREATION AND OPERATION OF A BANK
INVESTMENT FUND. 

WE HAVE NO DOUBT BUT THAT THE BOARD'S CONSTRUCTION AND APPLICATION
OF SEC. 32 IS BOTH REASONABLE AND RATIONAL.  THE INVESTMENT FUND
SERVICE AUTHORIZED BY THE COMPTROLLER'S REGULATION AND AS PROVIDED BY
THE FIRST NATIONAL CITY BANK IS A SERVICE AVAILABLE ONLY TO CUSTOMERS
OF THE BANK.  IT IS HELD OUT AS A SERVICE PROVIDED BY THE BANK, AND THE
INVESTMENT FUND BEARS THE BANK'S NAME.  THE BANK HAS EFFECTIVE CONTROL
OVER THE ACTIVITIES OF THE INVESTMENT FUND.  MOREOVER, THERE IS NO
DANGER THAT TO CHARACTERIZE THE BANK AND ITS FUND AS A SINGLE ENTITY
WILL DISSERVE THE PURPOSE OF CONGRESS.  THE LIMITATIONS THAT THE
BANKING LAWS PLACE ON THE ACTIVITIES OF NATIONAL BANKS ARE AT LEAST AS
GREAT AS THE LIMITATIONS PLACED ON THE ACTIVITIES OF THEIR AFFILIATES. 
FOR EXAMPLE, SEC. 32 REFERS TO THE "PUBLIC SALE" OF STOCKS OR
SECURITIES WHILE SEC. 21 PROSCRIBES THE "SELLING" OF STOCKS OR
SECURITIES. 

/13/  A LAW REVIEW ARTICLE WRITTEN BY COMPTROLLER SAXON AND DEPUTY
COMPTROLLER MILLER IN 1965 DID TAKE THE POSITION THAT THE GLASS
STEAGALL ACT IS INAPPLICABLE TO BANK COMMON TRUST FUNDS.  SAXON &
MILLER, COMMON TRUST FUNDS, 53 GEO.L.J. 994 (1965).  BUT THIS VIEW WAS
PREDICATED ON THE ARGUMENT THAT WHEN CONGRESS IN 1936 PROVIDED A TAX
EXEMPTION FOR COMMON TRUST FUNDS MAINTAINED BY A BANK, NOW 26 U.S.C.
584, IT CONTEMPLATED THE EXEMPTION OF COMMON TRUST FUNDS CREATED FOR
STRICTLY INVESTMENT PURPOSES, AND THAT CONSEQUENTLY CONGRESS MUST HAVE
ASSUMED THAT THE BANKING LAWS, WHICH OTHERWISE APPEAR TO PROSCRIBE SUCH
FUNDS, WERE NOT APPLICABLE.  ID., AT 1008-1010.  WHATEVER THE MERITS OF
THIS ARGUMENT, IT HAS NO BEARING ON THE INSTANT LITIGATION.  IT IS
CLEAR THAT THE COLLECTIVE INVESTMENT FUNDS AUTHORIZED BY REGULATION 9
NEED NOT QUALIFY FOR TAX EXEMPTION UNDER SEC. 584; THE FIRST NATIONAL
CITY BANK FUND DOES NOT SO QUALIFY.  MOREOVER, THE POSITION ADVANCED IN
THE BRIEF FILED ON BEHALF OF THE COMPTROLLER IN THIS LITIGATION IS NOT
THAT THE BANKING LAWS ARE INAPPLICABLE TO BANK INVESTMENT FUNDS, BUT
RATHER THAT THE CREATION AND OPERATION OF SUCH FUNDS ARE CONSISTENT
WITH THE BANKING LAWS. 

IT IS NOTEWORTHY THAT THE SEC. 584 EXEMPTION IS AVAILABLE TO COMMON
TRUST FUNDS "MAINTAINED BY A BANK . . . EXCLUSIVELY FOR THE COLLECTIVE
INVESTMENT AND REINVESTMENT OF MONEYS CONTRIBUTED THERETO BY THE BANK
IN ITS CAPACITY AS A TRUSTEE, EXECUTOR, ADMINISTRATOR, OR GUARDIAN . .
. "  THIS LANGUAGE, WHICH MAKES NO REFERENCE TO CONTRIBUTIONS BY THE
BANK IN ITS CAPACITY AS MANAGING AGENT, IS IDENTICAL TO THAT EXEMPTING
SUCH COMMON TRUST FUNDS FROM THE INVESTMENT COMPANY ACT OF 1940, 15
U.S.C. 80A-3(C)(3).  THE SECURITIES AND EXCHANGE COMMISSION HAS TAKEN
THE POSITION THAT COMMINGLED MANAGING AGENCY ACCOUNTS DO NOT COME
WITHIN SEC. 80A-3(C)(3).  SEE STATEMENT OF COMMISSIONER CARY, HEARINGS
ON COMMON TRUST FUNDS-- OVERLAPPING RESPONSIBILITY AND CONFLICT IN
REGULATION, BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON GOVERNMENT
OPERATIONS, 88TH CONG., 1ST SESS., 3 (1963). 

/14/  HEARINGS PURSUANT TO S. RES. 71 BEFORE A SUBCOMMITTEE OF THE
SENATE COMMITTEE ON BANKING AND CURRENCY (HEREAFTER 1931 HEARINGS),
71ST CONG., 3D SESS., 40 (1931); 1920 REPORT OF THE COMPTROLLER OF THE
CURRENCY, QUOTED ID., AT 1067, 1068.  SENATOR GLASS, COMMENTING ON
EARLIER BANKING LEGISLATION, SAID , "WE TRIED TO, AND THOUGHT AT THE
TIME WE HAD, REMOVED THE SYSTEM AS FAR AS POSSIBLE FROM THE INFLUENCE
OF THE STOCK MARKET."  ID., AT 262. 

/15/  ID., AT 1052. 

/16/  REPORT ON INVESTMENT TRUSTS AND INVESTMENT COMPANIES, PT. 2,
H.R. DOC. NO. 70, 76TH CONG., 1ST SESS., 59 (1939). 

/17/  1931 HEARINGS 116-117, 1017, 1068. 

/18/  SEE S. REP. NO. 77, 73D CONG., 1ST SESS., 6, 8, 10. 

/19/  ID., AT 18; SEE 1931 HEARINGS 365; 75 CONG.REC.  9911 (REMARKS
OF SEN. BULKLEY). 

/20/  1931 HEARINGS 41, 192, 1056; 1920 REPORT OF THE COMPTROLLER OF
THE CURRENCY, QUOTED ID., AT 1067. 

/21/  1931 HEARINGS 20, 237, 1063.  SEE ALSO ID., AT 1058, WHERE IT
IS SAID: 

"ACTIVITIES OF A BANK'S SECURITY AFFILIATE AS A HOLDING OR FINANCE
COMPANY OR AN INVESTMENT TRUST ARE ALSO FRAUGHT WITH THE DANGER OF
LARGE LOSSES DURING A DEFLATION PERIOD.  BANK AFFILIATES OF THIS KIND
SHOW A MUCH GREATER TENDENCY TO OPERATE WITH BORROWED FUNDS THAN DO
ORGANIZATIONS OF THIS TYPE WHICH ARE INDEPENDENT OF BANKS, THE REASON
BEING THAT THE IDENTITY OF CONTROL AND MANAGEMENT WHICH PREVAILS
BETWEEN THE BANK AND ITS AFFILIATE TENDS TO ENCOURAGE RELIANCE UPON THE
LENDING FACILITIES OF THE FORMER." 

/22/  SEE ID., AT 1064; 75 CONG.REC.  9912 (REMAKRS OF SEN.
BULKLEY). 

/23/  SEE 1931 HEARINGS 87 (REMARKS OF CHAIRMAN GLASS). 

/24/  SEE 77 CONG.REC.  4028 (REMARKS OF REP. FISH). 

/25/  1931 HEARINGS 1064. 

/26/  SEE 75 CONG.REC.  9912: 

"AND ALTHOUGH SUCH A LOSS WOULD POSSIBLY NOT RESULT IN ANY
SUBSTANTIAL IMPAIRMENT OF THE RESOURCES OF THE BANKING INSTITUTION
OWNING THAT AFFILIATE . . . THERE CAN BE NO DOUBT THAT THE WHOLE
TRANSACTION TENDS TO DISCREDIT THE BANK AND IMPAIR THE CONFIDENCE OF
ITS DEPOSITORS."  (REMARKS OF SEN. BULKLEY.) 

/27/  S. REP. NO. 77, 73D CONG., 1ST SESS., 9-10. 

/28/  1931 HEARINGS 1006-1029; S. REP. NO. 77, 73D CONG., 1ST SESS.,
8-9. 

/29/  75 CONG.REC.  9884.  SEE ALSO S. REP. NO. 77, 73D CONG., 1ST
SESS., 8: 

"THE OUTSTANDING DEVELOPMENT IN THE COMMERCIAL BANKING SYSTEM DURING
THE PREPANIC PERIOD WAS THE APPEARANCE OF EXCESSIVE SECURITY LOANS, AND
OF OVERINVESTMENT IN SECURITIES OF ALL KINDS.  THE EFFECTS OF THIS
SITUATION IN CHANGING THE WHOLE CHARACTER OF THE BANKING PROBLEM CAN
HARDLY BE OVEREMPHASIZED.  NATIONAL BANKS WERE NEVER INTENDED TO
UNDERTAKE INVESTMENT BANKING BUSINESS ON A LARGE SCALE, AND THE WHOLE
TENOR OF LEGISLATION AND ADMINISTRATIVE RULINGS CONCERNING THEM HAS
BEEN AWAY FROM RECOGNITION OF SUCH A GROWTH IN THE DIRECTION OF
INVESTMENT BANKING AS LEGITIMATE."     IN THE SAME VEIN REPRESENTATIVE
STEAGALL SAID: 

"OUR GREAT BANKING SYSTEM WAS DIVERTED FROM ITS ORIGINAL PURPOSES
INTO INVESTMENT ACTIVITIES . . .

        .          . .          . 

"THE PURPOSE OF THE REGULATORY PROVISIONS OF THIS BILL IS TO CALL
BACK TO THE SERVICE OF AGRICULTURE AND COMMERCE AND INDUSTRY THE BANK
CREDIT AND THE BANK SERVICE DESIGNED BY THE FRAMERS OF THE FEDERAL
RESERVE ACT."  77 CONG.REC.  3835. 

/30/  75 CONG.REC.  9912.     /31/  1931 HEARINGS 237; CF. ID., AT
1064. 

/32/  ID., AT 266, 300, 311. 

/33/  75 CONG.REC.  9912. 

/34/  S. RES. 71, 71ST CONG., 2D SESS., IS REPRINTED IN S. REP. NO.
77, 73D CONG., 1ST SESS., 1. 

/35/  1931 HEARINGS 1057.  SEE ALSO ID., AT 307. 

/36/  SEE ALSO SUPRA, N. 21. 

/37/  SEE 26 FED.RESERVE BULL.  393 (1940), QUOTED SUPRA, AT 621. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT HOLDS THAT THE INVESTMENT COMPANY INSTITUTE HAS STANDING
AS A COMPETITOR TO CHALLENGE THE ACTION OF THE COMPTROLLER OF THE
CURRENCY BECAUSE CONGRESS "ARGUABLY LEGISLATED AGAINST THE COMPETITION
THAT THE PETITIONERS SOUGHT TO CHALLENGE, AND FROM WHICH FLOWED THEIR
INJURY."  THE ICI, SAYS THE COURT, IS ENTITLED TO PREVAIL BECAUSE
"CONGRESS DID LEGISLATE AGAINST THE COMPETITION THAT THE PETITIONERS
CHALLENGE."  ANTE, AT 620, 621 (EMPHASIS ADDED.)  I UNDERSTAND THE
COURT TO MEAN BY "LEGISLATED AGAINST THE COMPETITION" NOT ONLY THAT
CONGRESS PROHIBITED BANKS FROM ENTERING THIS FIELD OR ENDEAVOR, BUT
THAT IT DID SO IN PART FOR REASONS STEMMING FROM THE FACT OF THE
REUSLTING COMPETITION.  SEE ANTE, AT 631-634, 636-638.  HOWEVER, THE
COURT CANNOT MEAN BY THIS PHRASE THAT IT WAS CONGRESS'  PURPOSE TO
PROTECT PETITIONERS' CLASS AGAINST COMPETITIVE INJURY FOR, AS ALL THREE
JUDGES ON THE COURT BELOW AGREED, NEITHER THE LANGUAGE OF THE PERTINENT
PROVISIONS OF THE GLASS-STEAGALL ACT NOR THE LEGISLATIVE HISTORY
EVINCES ANY CONGRESSIONAL CONCERN FOR THE INTERESTS OF PETITIONERS AND
OTHERS LIKE THEM IN FREEDOM FROM COMPETITION.  /1/  INDEED, IT APPEARS
REASONABLY PLAIN THAT, IF ANYTHING, THE ACT WAS ADOPTED DESPITE ITS
ANTICOMPETITIVE EFFECTS RATHER THAN BECAUSE OF THEM.  CF. ANTE, AT 630,
636. 

THIS BEING THE CASE, THE DISCUSSION OF STANDING IN HARDIN V.
KENTUCKY UTILITIES CO., 390 U.S. 1, 5-6 (1968), IS DIRECTLY IN POINT: 

"THIS COURT HAS, IT IS TRUE, REPEATEDLY HELD THAT THE ECONOMIC
INJURY WHICH RESULTS FROM LAWFUL COMPETITION CANNOT, IN AND OF ITSELF,
CONFER STANDING ON THE INJURED BUSINESS TO QUESTION THE LEGALITY OF ANY
ASPECT OF ITS COMPETITOR'S OPERATIONS.  RAILROAD CO. V. ELLERMAN, 105
U.S. 166 (1882); ALABAMA POWER CO. V. ICKES, 302 C.S. 464 (1938);
TENNESSEE POWER CO. V. TVA, 306 U.S. 118 (1939); PERKINS V. LUKENS
STEEL CO., 310 U.S. 113 (1940).  BUT COMPETITIVE INJURY PROVIDED NO
BASIS FOR STANDING IN THE ABOVE CASES SIMPLY BECAUSE THE STATUTORY AND
CONSTITUTIONAL REQUIREMENTS THAT THE PLAINTIFF SOUGHT TO ENFORCE WERE
IN NO WAY CONCERNED WITH PROTECTING AGAINST COMPETITIVE INJURY.  IN
CONTRAST, IT HAS BEEN THE RULE, AT LEAST SINCE THE CHICAGO JUNCTION
CASE, 264 U.S. 258 (1924), THAT WHEN THE PARTICULAR STATUTORY PROVISION
INVOKED DOES REFLECT A LEGISLATIVE PURPOSE TO PROTECT A COMPETITIVE
INTEREST, THE INJURED COMPETITOR HAS STANDING TO REQUIRE COMPLIANCE
WITH THAT PROVISION." 

I DO NOT BELIEVE THAT DATA PROCESSING SERVICE V. CAMP, 397 U.S. 150
(1970), AND ARNOLD TOURS V. CAMP, 400 U.S. 45 (1970), REQUIRE THE
OPPOSITE RESULT FROM THE ONE SUGGESTED BY THIS PASSAGE FROM HARDIN. 
DATA PROCESSING HELD THAT, ASIDE FROM "CASE-OR-CONTROVERSY" PROBLEMS
NOT PRESENT HERE, THE CRUCIAL QUESTION IN RULING ON A CHALLENGE TO
STANDING IS "WHETHER THE INTEREST SOUGHT TO BE PROTECTED BY THE
COMPLAINANT IS ARGUABLY WITHIN THE ZONE OF INTERESTS TO BE PROTECTED OR
REGULATED BY THE STATUTE OR CONSTITUTIONAL GUARANTEE IN QUESTION."  398
U.S.,AT 153.  THAT QUESTION WAS RESOLVED IN FAVOR OF THE DATA
PROCESSORS BECAUSE "SEC.  4 (OF THE BANK SERVICE CORPORATION ACT)
ARGUABLY BRINGS A COMPETITOR WITHIN THE ZONE OF INTERESTS PROTECTED BY
IT."  ID. AT 156.  /2/  IN ARNOLD TOURS THE COURT OBSERVED THAT IT WAS
AGAIN DEALING WITH SEC. 4 OF THE BANK SERVICE CORPORATION ACT, AND THAT
"(NOTHING IN THE (DATA PROCESSING) OPINION LIMITED SEC. 4 TO PROTECTING
ONLY COMPETITORS IN THE DATA-PROCESSING FIELD."  400 U.S.,AT 46. 
PLAINLY THESE CASES PROVIDE LITTLE SUPPORT FOR THE COURT'S CONCLUSION
HERE THAT COMPETITORS, AS SUCH, HAVE STANDING UNDER THE GLASS-STEAGALL
ACT AS WELL. 

THE COURT'S HOLDING-- THAT IF CONGRESS PROHIBITED ENTRY INTO A FIELD
OF BUSINESS FOR REASONS RELATING TO COMPETITION, THEN A COMPETITOR HAS
STANDING TO SEEK OBSERVANCE OF THE PROHIBITION-- HAS A SURFACE APPEAL,
BUT, SO FAR AS I CAN SEE, NO SOUND ANALYTICAL BASIS.  CERTAINLY NONE IS
OFFERED.  IN ANY EVENT; IT APPEARS TO ME THAT OUR PRIOR DECISIONS,
PARTICULARLY HARDIN, REQUIRE THE CONCLUSION THAT THE PETITIONERS IN NO.
61 LACK STANDING TO CHALLENGE THE COMPTROLLER'S ACTION.  WHILE I WOULD
NOT FORECLOSE THE POSSIBILITY THAT THOSE CASES SHOULD BE FURTHER
MODIFIED IN SOME RESPECT, /3/  THE COURT HAS NOT UNDERTAKEN TO
REEXAMINE THEM, AND I DEEM IT INAPPROPRIATE FOR ME TO DO SO AS A SINGLE
JUSTICE. 

THE VIEW THAT I TAKE WITH REGARD TO PETITIONERS' STANDING IN NO. 61
MAKES IT UNNECESSARY FOR ME TO REACH THE MERITS IN THAT CASE, BUT IT
DOES REQUIRE ME TO RULE ON THE CONTENTIONS MADE IN NO. 59.  LIKE MR.
JUSTICE BLACKMUN SEE POST, AT 645, I FIND LENGTHY DISCUSSION OF THIS
TOPIC SUPERFLUOUS.  IS THE PROPRIETY OF THE ACTION OF THE SECURITIES
AND EXCHANGE COMMISSION IN INCREASING FROM TWO TO THREE THE NUMBER OF
SEATS OPEN TO BANK OFFICERS ON THE FIVE-MAN COMMITTEE WHICH SERVES AS A
BOARD OF DIRECTORS OF THE ACCOUNT.  /4/  SUBSTANTIALLY FOR THE REASONS
GIVEN BY THE JUDGES OF THE COURT BELOW, 136 U.S.APP.D.C. 241, 249-253,
266, 420 F.2D 83, 91-95, 108, I AM OF THE OPINION THAT THE COMMISSION
DID NOT ABUSE ITS DISCRETION IN DETERMINING THAT THE FACTS OF THIS CASE
MADE APPROPRIATE AN EXERCISE OF THE DISPENSING POWER EXPLICITLY VESTED
IN THE COMMISSION BY 15 U.S.C. 80A-6(C). 

FOR THE REASONS GIVEN HEREIN, I WOULD AFFIRM THE TWO JUDGMENTS UNDER
REVIEW. 

/1/  "IT IS EQUALLY CLEAR THAT GIVING EVEN THE BROADEST READING OF
THE LEGISLATIVE HISTORY EMBELLISHING THE ACT WILL NOT SUPPORT THE
CONCLUSION THAT CONGRESS MEANT TO BESTOW UPON APPELLEES ANY PROTECTION
FROM COMPETITIVE INJURY."  136 U.S.APP.D.C. 241, 263, 420 F.2D 83, 105
(BURGER, J., JOINED BY MILLER, J.)  (FOOTNOTE OMITTED); SEE ALSO ID.,
AT 254, 256-258, 420 F.2D, AT 96, 98-100 (BAZELON, C.J.). 

/2/  SEE ALSO BARLOW V. COLLINS, 397 U.S. 159, 164 (1970). 

/3/  FOR ONE SUGGESTION TO THIS EFFECT, SEE JAFFE, STANDING AGAIN,
84 HARV.L.REV.  633 (1971). 

/4/  BY VIRTUE OF THE "PERSON OR PARTY AGGRIEVED" PROVISION OF THE
INVESTMENT COMPANY ACT, 15 U.S.C. 801-42(A), THERE IS NO DIFFICULTY
SUPPORTING PETITIONER'S STANDING IN NO. 59. 

MR. JUSTICE BLACKMUN, DISSENTING. 

THE COURT'S OPINION AND JUDGMENTS HERE, IT SEEMS TO ME, ARE BASED
MOREON WHAT IS DEEMED TO BE APPROPRIATE AND DESIRABLE NATIONAL BANKING
POLICY THAN ON WHAT IS A NECESSARY JUDICIAL CONSTRUCTION OF THE GLASS
STEAGALL ACT OF ALMOST FOUR DECADES AGO.  IT IS A FAR DIFFERENT THING
TO BE PERSUADED THAT IT IS WISE POLICY TO KEEP NATIONAL BANKS OUT OF
THE BUSINESS OF OPERATING MUTUAL INVESTMENT FUNDS, DESPITE THE
SAFEGUARDS THAT THE COMPTROLLER OF THE CURRENCY AND THE SECURITIES AND
EXCHANGE COMMISSION HAVE PROVIDED, THAN IT IS TO BE PERSUADED THAT
EXISTING AND SOMEWHAT ANCIENT LEGISLATION REQUIRES THAT RESULT.  POLICY
CONSIDERATIONS ARE FOR THE CONGRESS AND NOT FOR THIS COURT. 

I RECOGNIZE AND AM FULLY AWARE OF THE FACTORS AND OF THE ECONOMIC
CONSIDERATIONS THAT LED TO THE ENACTMENT OF THE GLASS-STEAGALL ACT. 
THE SECOND AND THIRD DECADES OF THIS CENTURY ARE NOT THE HAPPIEST
CHAPTER IN THE HISTORY OF AMERICAN BANKING.  DEEP NATIONAL CONCERNS
EMERGED FROM THE DISTRESSFUL EXPERIENCES OF THOSE YEARS AND FROM THE
SAD ENDS TO WHICH CERTAIN BANKING PRACTICES OF THAT TIME HAS LED THE
INDUSTRY.  BUT THOSE THEN-PREVAILING CONDITIONS, THE LEGISLATIVE
HISTORY, AND THE REMEDY CONGRESS PROVIDED, PROMPT ME TO CONCLUDE THAT
WHAT WAS PROSCRIBED WAS THE INVOLVEMENT AND ACTIVITY OF A NATIONAL BANK
IN INVESTMENT, AS CONTRASTED WITH COMMERCIAL, BANKING, IN UNDERWRITING
AND ISSUING, AND IN ACQUIRING SPECULATIVE SECURITIES FOR ITS OWN
ACCOUNT.  THESE WERE THE BANKING SINS OF THAT TIME. 

THE PROPRIETY, HOWEVER, OF A NATIONAL BANK'S ACTING, WHEN NOT IN
CONTRAVENTION OF STATE OR LOCAL LAW, AS AN INTER VIVOS OR TESTAMENTARY
TRUSTEE, AS AN EXECUTOR OR ADMINISTRATOR, AS A GUARDIAN OR COMMITTEE,
AS A CUSTODIAN, AND, INDEED, AS AN AGENT FOR THE INDIVIDUAL CUSTOMER'S
SECURITIES AND FUNDS, SEE CARCABA V. MCNAIR, 68 F.2D 795, 797 (CA5
1934), CERT. DENIED, 292 U.S. 646, IS NOT, AND COULD NOT BE, QUESTED BY
THE PETITIONERS HERE OR BY THE COURT.  THIS BEING SO, THERE IS, FOR ME,
AN ELEMENT OF ILLOGIC IN THE READY ADMISSION BY ALL CONCERNED, ON THE
ONE HAND, THAT A NATIONAL BANK HAS THE POWER TO MANAGE, BY WAY OF A
COMMON TRUST ARRANGEMENT, THOSE FUNDS THAT IT HOLDS AS FIDUCIARY IN THE
TECHNICAL SENSE, AND TO ADMINISTER SEPARATE AGENCY ACCOUNTS, AND IN THE
REJECTION, ON THE OTHER HAND, OF THE PROPRIETY OF THE BANK'S PLACING
AGENCY ASSETS INTO A MUTUAL INVESTMENT FUND.  THE COURT DRAWS ITS
DECISIONAL LINE BETWEEN THE TWO.  I FIND IT IMPOSSIBLE TO LOCATE ANY
STATUTORY ROOT FOR THAT LINE DRAWING.  TO USE THE GLASS-STEAGALL ACT AS
A TOOL FOR THAT DISTINCTION IS, I THINK, A FUNDAMENTAL MISCONCEPTION OF
THE STATUTE. 

ACCORDINGLY, I AM NOT CONVINCED THAT THE CONGRESS, BY THAT ACT OR
OTHERWISE, AS YET HAS PROSCRIBED THE BANKING ENDEAVORS UNDER CHALLENGE
HERE BY COMPETITORS IN A HIGHLY COMPETITIVE FIELD.  NONE OF THE JUDGES
OF THE COURT OF APPEALS WAS SO CONVINCED, AND NEITHER WAS THE
COMPTROLLER OF THE CURRENCY WHOSE EXPERTISE THE COURT CONCEDES.  I
WOULD LEAVE TO CONGRESS THE PRIVILEGE OF NOW PROHIBITING SUCH NATIONAL
BANK ACTIVITY IF THAT IS ITS INTENT AND DESIRE. 

IN PARTS IV AND V OF ITS OPINION THE COURT OUTLINES HAZARDS THAT ARE
PRESENT WHEN A BANK INDULGES IN SPECIFIED ACTIVITIES.  THE COURT THEN
STATES, IN THE LAST PARAGRAPH OF PART V, THAT THOSE HAZARDS ARE NOT
PRESENT WHEN A BANK UNDERTAKES TO PURCHASE STOCK FOR INDIVIDUAL
CUSTOMERS, OR TO COMMINGLE ASSETS HELD IN ITS SEVERAL FIDUCIARY
CAPACITIES, AND THE LIKE.  I MUST DISAGREE.  IT SEEMS TO ME THAT
EXACTLY THE SAME HAZARDS ARE INDEED PRESENT.  A BANK OFFERS ITS
FIDUCIARY SERVICES IN AN ATMOSPHERE OF VIGOROUS COMPETITION.  ONE NEED
ONLY OBSERVE THE CURRENT AND CONTINUOUS ADVERTISING OF CLAIMED
FIDUCIARY SKILLS TO KNOW THAT THIS IS SO AND THAT THE BUSINESS IS ONE
FOR PROFIT.  IN THE FIDUCIARY AREA A BANK IS ENGAGED IN DIRECT
COMPETITION WITH OTHER INVESTMENT CONCEPTS AND WITH NONBANKING
FIDUCIARIES.  FAILURE OR MISADVENTURE OF A SINGLE TRUST MAY CONSTITUTE
A THREAT TO PUBLIC CONFIDENCE AMONG THE BANK'S OTHER TRUST
BENEFICIARIES, PROSPECTIVE TRUSTORS, AND EVEN THE COMMERCIAL ACTIVITIES
OF THE BANK ITSELF.  IT HAS AN INEVITABLE ADVERSE EFFECT UPON THE
BANK'S FULFILLMENT OF WHAT IS FASHIONABLY DESCRIBED TODAY AS ITS "FULL
SERVICE." 

THUS I FEEL THAT THE COURT OVERSTATES ITS CASE WHEN IT SEEKS TO
DIMINISH THE SIGNIFICANCE OF THESE HAZARDS IN THE FIDUCIARY AREA AS
CONTRASTED WITH MUTUAL FUND OPERATION.  AFTER ALL, WE DEAL HERE WITH
SOMETHING AKIN TO THE TRADITIONAL BANKING FUNCTION AND WITH A DEVICE
THAT MAKES AVAILABLE FOR THE SMALL INVESTOR WHAT IS ALREADY AVAILABLE
FOR THE LARGE INVESTOR BY WAY OF THE INDIVIDUAL AGENCY ACCOUNT. 

WHAT THE COURT DECRIES IN THE INVESTMENT FUND IS THE COMBINATION OF
THREE BANKING OPERATIONS, EACH CONCEDEDLY PERMISSIBLE:  ACTING AS AGENT
FOR THE CUSTOMER, PURCHASING FOR THAT CUSTOMER, AND POOLING ASSETS.  IT
IS SAID THAT "THE UNION OF THESE POWERS" GIVES BIRTH TO SOMETHING "OF A
DIFFERENT CHARACTER" AND IS STATUTORILY PROHIBITED.  I DOUBT THAT THOSE
THREE POWERS, EACH ALLOWED BY THE CONTROLLING STATUTES, SOMEHOW OPERATE
IN COMBINATION TO PRODUCE SOMETHING FORBIDDEN BY THOSE SAME CONTROLLING
STATUTES, AND I DOUBT THAT THE UNITIZATION IS SOMETHING MORE THAN OR
SOMETHING DIFFERENT FROM THE MERE SUM OF ITS PARTS AND THAT IT THEREBY
EXPANDS TO ACHIEVE OFFENSIVENESS UNDER THE GLASS-STEAGALL ACT. 

WITH MY POSITION AS TO THE ACT ONLY A MINORITY ONE, DETAILED
DISCUSSION OF THE ADDITIONAL ISSUE, RAISED IN NO. 59, AS TO THE
PROPRIETY OF THE EXEMPTION GRANTED BY THE SECURITIES AND EXCHANGE
COMMISSION, WOULD BE SUPERFLUOUS.  SUFFICE IT TO SAY THAT I AM IN
ACCORD WITH THE VIEWS EXPRESSED IN THE RESPECTIVE OPINIONS ON THIS
ISSUE IN THE COURT OF APPEALS, 136 U.S.APP.D.C. 241, 249-253, 266, 420
F.2D 83, 91-95, AND 108, AND, IN PARTICULAR, BY CHIEF JUDGE BAZELON
WHEN HE CAREFULLY EXAMINED THE FOUR "DANGER ZONES" CONSIDERED BY THE
SEC AND THE PROTECTIONS ERECTED AGAINST THEM, AND THEN CONCURRED IN THE
COMMISSION'S EXERCISE OF JUDGMENT.  I, TOO, FEEL THAT THE COMMISSION
DID NOT ACT ARBITRARILY OR EXCEED ITS STATUTORY AUTHORITY AND THAT ITS
DETERMINATION DESERVES SUPPORT HERE. 

I WOULD AFFIRM THE JUDGMENTS OF THE COURT OF APPEALS. 

G. DUANE VIETH ARGUED THE CAUSE FOR PETITIONERS IN NO. 61.  WITH HIM
ON THE BRIEFS WERE JAMES F. FITZPATRICK, MELVIN SPAETH, AND ROBERT
AUGENBLICK.  JOSEPH B. LEVIN ARUGED THE CAUSE FOR PETITIONER IN NO.
59.  WITH HIM ON THE BRIEFS WAS LLOYD J. DERRICKSON. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR RESPONDENT
CAMP, COMPTROLLER OF THE CURRENCY, IN NO. 61.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
RUCKELSHAUS, RICHARD B. STONE, ALAN S. ROSENTHAL, LEONARD SCHAITMAN,
AND C. WESTBROOK MURPHY.  MR. FRIEDMAN, BY SPECIAL LEAVE OF COURT,
ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS CURIAE URGING
AFFIRMANCE IN NO. 59.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD AND MR. STONE.  ARCHIBALD COX ARGUED THE CAUSE FOR RESPONDENT
FIRST NATIONAL CITY BANK IN BOTH CASES.  WITH HIM ON THE BRIEF WAS
STEPHEN AILES.     ROBERT L. STERN FILED A BRIEF FOR CORPORATE
FIDUCIARIES ASSOCIATION OF CHICAGO AS AMICUS CURIAE URGING AFFIRMANCE
IN BOTH CASES. 
..END :



WILLIAMS V. UNITED STATES, 401 U.S. 646 


       WILLIAMS V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 81.  ARGUED OCTOBER 21, 1970-- DECIDED APRIL 5, 1971

           /1/ 


IN NO. 81, HERE ON DIRECT REVIEW, PETITIONER WAS CONVICTED OF SELLING
NARCOTICS AFTER A TRIAL IN WHICH HEROIN SEIZED IN A SEARCH INCIDENT TO
HIS ARREST WAS INTRODUCED INTO EVIDENCE.  THE COURT OF APPEALS
AFFIRMED, HOLDING THAT THE INTERVENING DECISION IN CHIMEL V.
CALIFORNIA, 395 U.S. 752, NARROWING THE SCOPE OF PERMISSIBLE SEARCHES
INCIDENT TO ARREST, WAS NOT TO BE RETROACTIVELY APPLIED TO SEARCHES
ANTEDATING THE DATE IT WAS DECIDED, AND THAT THE SEARCH WAS VALID UNDER
PRE-CHIMEL LAW.  EVIDENCE AT THE TRIAL OF PETITIONER IN NO. 82 INCLUDED
MARKED BILLS SEIZED DURING A PRE-CHIMEL SEARCH OF HIS APARTMENT
FOLLOWING HIS ARREST ON NARCOTICS CHARGES.  THE ARREST AND SEARCH WERE
UPHELD AT TRIAL, ON DIRECT APPEAL, AND IN THE DISTRICT COURT AND COURT
OF APPEALS IN PROCEEDINGS UNDER 28 U.S.C. 2255.  HELD:  THE JUDGMENTS
ARE AFFIRMED.  PP. 649-666, 699-700. 

NO. 81, 418 F.2D 159, AND NO. 82, AFFIRMED. 

MR. JUSTICE WHITE, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE STEWART,
AND MR. JUSTICE BLACKMUN, CONCLUDED THAT CHIMEL, SUPRA, IS NOT
RETROACTIVE AND SHOULD NOT BE APPLIED TO SEARCHES CONDUCTED PRIOR TO
THE DATE OF THAT DECISION.  PP. 649-659. 

(A) WHERE THE MAJOR PURPOSE OF A NEW CONSTITUTIONAL STANDARD IS NOT
TO OVERCOME AN ASPECT OF A CRIMINAL TRIAL THAT SUBSTANTIALLY IMPAIRS
THE TRUTH-FINDING FUNCTION AND THUS RAISES SERIOUS QUESTIONS ABOUT THE
ACCURACY OF GUILTY VERDICTS IN PAST TRIALS, THE NEW RULE DOES NOT
REQUIRE RETROSPECTIVE APPLICATION.  P. 653. 

(B) THE CONSTITUTION DOES NOT REQUIRE THAT PRE-CHIMEL SEARCHES BE
MEASURED BY THE NEW CHIMEL STANDARDS, DESIST V. UNITED STATES, 394 U.S.
244.  PETITIONERS' RIGHTS UNDER THEN-EXISTING LAW WERE NOT VIOLATED
EITHER BEFORE OR DURING TRIAL, IT SI NOT CLAIMED THAT THE EVIDENCE WAS
CONSTITUTIONALLY INSUFFICIENT TO PROVE GUILT, AND THE PURPOSE OF THE
EXCLUSIONARY RULE WILL BE SUFFICIENTLY IMPLEMENTED BY APPLYING CHIMEL
TO SEARCHES OCCURRING AFTER THE DATE OF DECISION IN THAT CASE.  P.
656. 

(C) THERE IS NO CONSTITUTIONAL DIFFERENCE BETWEEN THE APPLICABILITY
OF CHIMEL TO CONVICTIONS HERE ON DIRECT APPEAL AND THOSE INVOLVING
COLLATERAL PROCEEDINGS, OR BETWEEN FEDERAL AND STATE PRISONERS.  PP.
656-659. 

MR. JUSTICE BRENNAN CONCLUDED THAT THE QUESTION IS NOT WHETHER EVERY
PERSON CONVICTED THROUGH EVIDENCE OBTAINED CONTRARY TO CHIMEL, SUPRA,
IS GUILTY, BUT RATHER WHETHER CHIMEL COMPELS THE CONCLUSION THAT THE
INVASION OF PETITIONERS' PRIVACY, CONDUCTED IN JUSTIFIABLE BUT MISTAKEN
RELIANCE UPON THE CONTINUING VALIDITY OF PRE-CHIMEL STANDARDS, REQUIRES
THE EXCLUSION OF THE FRUITS OF THAT INVASION FROM THE FACTFINDING
PROCESS.  HE AGREED WITH THE PLURALITY OPINION THAT IT DOES NOT, AND
THAT THE CHIMEL RULE SHOULD NOT BE APPLIED RETROACTIVELY.  PP. 660
665. 

MR. JUSTICE BLACK CONCURRED IN THE RESULT ON THE GROUND THAT CHIMEL,
SUPRA WAS WRONGLY DECIDED.  P. 660. 

MR. JUSTICE HARLAN CONCLUDED THAT THE JUDGMENT SHOULD BE AFFIRMED IN
NO. 82, HERE ON COLLATERAL REVIEW, AS THE SEARCH IN THAT CASE SHOULD
NOT BE SUBJECTED TO THE REQUIREMENTS OF CHIMEL, SUPRA, SINCE
PETITIONER'S CONVICTION BECAME FINAL PRIOR TO CHIMEL, THEN-PREVAILING
LAW VALIDATED THE SEARCH, AND THE CONVICTION WAS OBTAINED BY METHODS
NOT FUNDAMENTALLY UNFAIR.  PP. 699-700. 

MR. JUSTICE MARSHALL CONCLUDED THAT THE JUDGMENT IN NO. 82 SHOULD BE
AFFIRMED, AS THE MODE OF ANALYSIS IN THE PLURALITY OPINION IS
APPROPRIATE IN CASES HERE ON COLLATERAL REVIEW, AND THE CHIMEL RULE
SHOULD NOT BE APPLIED RETROACTIVELY IN SUCH CASES.  PP. 665-666. 

WHITE, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION;
IN WHICH BURGER, C.J., AND STEWART AND BLACKMUN, JJ., JOINED.  STEWAR? 
J., FILED A SEPARATE STATEMENT, POST, P. 660.  BRENNAN, J., FILED AN
OPINI8N CONCURRING IN THE JUDGMENT IN NO. 82 AND DISSENTING IN NO. 81,
POST, P. 675.  MARSHALL, J., FILED AN OPINION CONCURRING IN PART AND
DISSENTING IN PART, POST, P. 660.  DOUGLAS, J., TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE WHITE ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE, MR. JUSTICE STEWART, AND MR. JUSTICE
BLACKMUN JOIN. 

THE PRINCIPAL QUESTION IN THESE CASES IS WHETHER CHIMEL V.
CALIFORNIA, 395 U.S. 752 (1969), SHOULD BE APPLIED RETROACTIVELY EITHER
TO THE DIRECT REVIEW OF PETITIONER WILLIAMS' CONVICTION OR IN THE
COLLATERAL PROCEEDING INITIATED BY PETITIONER ELKANICH. 

        I 

IN NO. 81, FEDERAL AGENTS ON MARCH 31, 1967, SECURED A WARRANT TO
ARREST PETITIONER WILLIAMS ON CHARGES OF SELLING NARCOTICS IN VIOLATION
OF 21 U.S.C. 174.  WILLIAMS WAS ARRESTED AT HIS HOME THAT NIGHT.  A
QUANTITY OF HEROIN WAS DISCOVERED AND SEIZED IN THE COURSE OF A SEARCH
INCIDENT TO THE ARREST.  THE TRIAL COURT SUSTAINED THE SEARCH AND THE
HEROIN WAS INTRODUCED IN EVIDENCE.  WILLIAMS WAS CONVICTED AND
SENTENCED TO A 10-YEAR PRISON TERM.  THE JUDGMENT OF CONVICTION WAS
AFFIRMED BY THE COURT OF APPEALS FOR THE NINTH CIRCUIT.  WILLIAMS V.
UNITED STATES, 418 F.2D 159 (CA9 1969).  THAT COURT HELD:  (1) THAT OUR
INTERVENING DECISION IN CHIMEL V. CALIFORNIA, SUPRA, WAS NOT
RETROACTIVE AND DID NOT GOVERN SEARCHES CARRIED OUT PRIOR TO JUNE 23,
1969, THE DATE OF THAT DECISION; AND (2) THAT THE SEARCH WAS VALID
UNDER PRE-CHIMEL LAW EVIDENCED BY UNITED STATES V. RABINOWITZ, 339 U.S.
56 (1950), AND HARRIS V. UNITED STATES, 331 U.S. 145 (1947).  THE COURT
OF APPEALS ALSO REJECTED A CLAIM THAT THE SEARCH WAS INVALID BECAUSE
THE ARREST WAS A MERE PRETEXT FOR AN UNWARRANTED SEARCH.  WE GRANTED
CERTIORARI.  397 U.S. 986 (1970). 

IN NO. 82, PETITIONER ELKANICH WAS CONVICTED ON THREE COUNTS OF
SELLING NARCOTICS IN VIOLATION OF 21 U.S.C. 174.  HE WAS SENTENCED TO
THREE CONCURRENT 10-YEAR SENTENCES.  THE EVIDENCE INTRODUCED INCLUDED
MARKED BILLS GIVEN BY FEDERAL AGENTS TO AN INTERMEDIARY TO USE IN
PURCHASING NARCOTICS.  THE BILLS WERE SEIZED DURING A SEARCH OF
PETITIONER'S APARTMENT FOLLOWING HIS ARREST THERE.  THE SEARCH WAS
CHALLENGED AT TRIAL ON THE GROUND THAT THE ARREST WAS INVALID.  BOTH
THE ARREST AND THE INCIDENT SEARCH WERE UPHELD AT TRIAL AND ON DIRECT
APPEAL, ELKANICH V. UNITED STATES, 327 F.2D 417 (CA9 1964), AS WELL AS
BY THE DISTRICT COURT AND THE COURT OF APPEALS IN SUBSEQUENT
PROCEEDINGS BROUGHT BY PETITIONER UNDER 28 U.S.C. 2255.  WE GRANTED THE
PETITION FOR CERTIORARI TO CONSIDER THE EFFECT, IF ANY, OF OUR CHIMEL
DECISION, WHICH INTERVENED WHEN THE APPEAL FROM DENIAL OF PETITIONER'S
SEC. 2255 APPLICATION WAS PENDING IN THE COURT OF APPEALS.  395 U.S.
1057 (1970).  WE AFFIRM THE JUDGMENTS IN BOTH CASES. 

    II 

ASIDE FROM AN INSUBSTANTIAL CLAIM BY WILLIAMS THAT HIS ARREST WAS
INVALID, /1A/  NEITHER PETITIONER IN THIS COURT SUGGESTS THAT HIS
CONVICTION WAS UNCONSTITUTIONALLY OBTAINED; NO EVIDENCE AND NO
PROCEDURES WERE EMPLOYED AT OR BEFORE TRIAL THAT VIOLATED ANY THEN
GOVERNING CONSTITUTIONAL NORMS.  CONCEDEDLY, THE EVIDENCE SEIZED
INCIDENT TO THE ARREST OF BOTH PETITIONERS WAS BOTH PROPERLY SEIZED AND
ADMITTED UNDER THE FOURTH AMENDMENT AS CONSTRUED AND APPLIED IN HARRIS
IN 1947 AND RABINOWITZ IN 1950.  BOTH HARRIS AND RABINOWITZ, HOWEVER,
WERE DISAPPROVED BY CHIMEL.  THAT CASE CONSIDERABLY NARROWED THE
PERMISSIBLE SCOPE OF SEARCHES INCIDENT TO ARREST, AND PETITIONERS ARGUE
THAT THE SEARCHES CARRIED OUT IN THESE CASES, IF JUDGED BY CHIMEL
STANDARDS, WERE UNREASONABLE UNDER THE FOURTH AMENDMENT AND THE
EVIDENCE SEIZED INADMISSIBLE AT TRIAL.  /2/  HOWEVER, WE REAFFIRM OUR
RECENT DECISIONS IN LIKE SITUATIONS:  CHIMEL IS NOT RETROACTIVE AND IS
NOT APPLICABLE TO SEARCHES CONDUCTED PRIOR TO THE DECISION IN THAT
CASE.  DESIST V. UNITED STATES, 394 U.S. 244 (1969). 

IN LINKLETTER V. WALKER, 381 U.S. 618 (1965), WE DECLINED TO GIVE
COMPLETE RETROACTIVE EFFECT TO THE EXCLUSIONARY RULE OF MAPP V. OHIO,
367 U.S. 643 (1961).  RELYING ON PRIOR CASES, WE FIRMLY REJECTED THE
IDEA THAT ALL NEW INTERPRETATIONS OF THE CONSTITUTION MUST BE
CONSIDERED ALWAYS TO HAVE BEEN THE LAW AND THAT PRIOR CONSTRUCTIONS TO
THE CONTRARY MUST ALWAYS BE IGNORED.  SINCE THAT TIME, WE HAVE HELD TO
THE COURSE THAT THERE IS NO INFLEXIBLE CONSTITUTIONAL RULE REQUIRING IN
ALL CIRCUMSTANCES EITHER ABSOLUTE RETROACTIVITY OR COMPLETE
PROSPECTIVITY FOR DECISIONS CONSTRUING THE BROAD LANGUAGE OF THE BILL
OF RIGHTS.  /3/  NOR HAVE WE ACCEPTED AS A DIVIDING LINE THE SUGGESTED
DISTINCTION BETWEEN CASES ON DIRECT REVIEW AND THOSE ARISING ON
COLLATERAL ATTACK.  /4/  RATHER WE HAVE PROCEEDED TO "WEIGH THE MERITS
AND DEMERITS IN EACH CASE BY LOOKING TO THE PRIOR HISTORY OF THE RULE
IN QUESTION, ITS PURPOSE AND EFFECT, AND WHETHER RETROSPECTIVE
OPERATION WILL FURTHER OR RETARD ITS OPERATION.  LINKLETTER, SUPRA, AT
629.  /5/ 

WHERE THE MAJOR PURPOSE OF NEW CONSTITUTIONAL DOCTRINE IS TO
OVERCOME AN ASPECT OF THE CRIMINAL TRIAL THAT SUBSTANTIALLY IMPAIRS ITS
TRUTH-FINDING FUNCTION AND SO RAISES SERIOUS QUESTIONS ABOUT THE
ACCURACY OF GUILTY VERDICTS IN PAST TRIALS, THE NEW RULE HAS BEEN GIVEN
COMPLETE RETROACTIVE EFFECT.  /6/  NEITHER GOOD-FAITH RELIANCE BY STATE
OR FEDERAL AUTHORITIES ON PRIOR CONSTITUTIONAL LAW OR ACCEPTED
PRACTICE, NOR SEVERE IMPACT ON THE ADMINISTRATION OF JUSTICE HAS
SUFFICED TO REQUIRE PROSPECTIVE APPLICATION IN THESE CIRCUMSTANCES. 

IT IS QUITE DIFFERENT WHERE THE PURPOSE OF THE NEW CONSTITUTIONAL
STANDARD PROSCRIBING THE USE OF CERTAIN EVIDENCE OR A PARTICULAR MODE
OF TRIAL IS NOT TO MINIMIZE OR AVOID ARBITRARY OR UNRELIABLE RESULTS
BUT TO SERVE OTHER ENDS.  IN THESE SITUATIONS THE NEW DOCTRINE RAISES
NO QUESTION ABOUT THE GUILT OF DEFENDANTS CONVICTED IN PRIOR TRIALS. 
MAPP V. OHIO CAST NO DOUBT ON THE RELEVANCE OR PROBITY OF ILLEGALLY
SEIZED EVIDENCE BUT EXCLUDED IT FROM CRIMINAL TRIALS TO DETER OFFICIAL
INVASIONS OF INDIVIDUAL PRIVACY PROTECTED BY THE FOURTH AMENDMENT. 
KATZ V. UNITED STATES, 389 U.S. 347 (1967), OVERRULED OLMSTEAD V.
UNITED STATES, 277 U.S. 438 (1928), AND GOLDMAN V. UNITED STATES, 316
U.S. 129 (1942), AND GAVE EXPANDED FOURTH AMENDMENT PROTECTION AGAINST
NON-CONSENSUAL EAVESDROPPING.  IT FOLLOWED THAT EVIDENCE OBTAINED BY
NONTRESPASSORY ELECTRONIC SURVEILLANCE OF A PUBLIC TELEPHONE BOOTH
BECAME SUBJECT TO THE EXCLUSIONARY RULE, WHICH HAD BEEN FASHIONED BY
THE COURT TO EXACT COMPLIANCE WITH THE AMENDMENT RATHER THAN TO PROTECT
DEFENDANTS FROM CONVICTION ON UNTRUSTWORTHY EVIDENCE.  THUS THE COURT,
WHEN IT CAME TO CONSIDER THE RETROACTIVITY OF MAPP AND KATZ, WAS
DEALING WITH CASES QUITE DIFFERENT FROM THOSE SITUATIONS WHERE EMERGING
CONSTITUTIONAL DOCTRINE CASTS SUCH DOUBT UPON THE SOUNDNESS OF SOME
ASPECT OF PRIOR TRIALS THAT STATE AND FEDERAL GOVERNMENTS WERE
DISENTITLED FROM FURTHER PURSUING THE GOALS OF THEIR CRIMINAL LAW
AGAINST DEFENDANTS CONVICTED IN SUCH PRIOR TRIALS. 

THE PETITIONERS IN BOTH LINKLETTER AND DESIST WERE CONVICTED IN
PROCEEDINGS THAT CONFORMED TO ALL THEN-APPLICABLE CONSTITUTIONAL
NORMS.  IN BOTH CASES THE GOVERNMENT INVOLVED HAD A CONCEDEDLY GUILTY
DEFENDANT IN CUSTODY AND SUBSTANTIAL UNSATISFIED INTERESTS IN ACHIEVING
WITH RESPECT TO SUCH DEFENDANT WHATEVER DETERRENT AND REHABILITATIVE
GOALS UNDERLAY ITS CRIMINAL JUSTICE SYSTEM.  EACH DEFENDANT, LINKLETTER
BY THE HABEAS CORPUS ROUTE, AND DESIST ON DIRECT APPEAL, CLAIMED THE
BENEFIT OF A LATER DECIDED CASE AND DEMANDED A NEW TRIAL.  BUT ORDERING
NEW TRIALS WOULD HAVE INVOLVED NOT ONLY EXPENSE AND EFFORT BUT THE
INEVITABLE RISK OF UNAVAILABLE WITNESSES AND FAULTY MEMORIES; THE
AUTHORITIES MIGHT NOT HAVE HAD THE EVIDENCE THEY ONCE HAD AND MIGHT
HAVE BEEN FORECLOSED FROM OBTAINING OTHER EVIDENCE THEY MIGHT HAVE
SECURED HAD THEY KNOWN THE EVIDENCE THEY WERE USING WAS
CONSTITUTIONALLY SUSPECT.  MOREOVER, IT WAS NOT ESSENTIAL TO THE
DETERRENT PURPOSE OF THE EXCLUSIONARY RULE THAT MAPP AND KATZ BE GIVEN
RETROACTIVE EFFECT; INDEED THAT PURPOSE WOULD HAVE BEEN ONLY MARGINALLY
FURTHERED BY EXTENDING RELIEF TO LINKLETTER, DESIST, AND ALL OTHERS IN
COMPARABLE SITUATIONS.  IN THESE CIRCUMSTANCES, WE FOUND NO
CONSTITUTIONAL WARRANT FOR SETTING ASIDE EITHER CONVICTION.  /7/

        III 

CONSIDERING THAT DESIST REPRESENTS THE SOUND APPROACH TO
RETROACTIVITY CLAIMS IN FOURTH AMENDMENT CASES, WE ARE CONFIDENT THAT
WE ARE NOT CONSTITUTIONALLY BOUND TO APPLY THE STANDARDS OF CHIMEL TO
THE CASES BROUGHT HERE BY ELKANICH AND WILLIAMS.  BOTH PETITIONERS WERE
DULY CONVICTED WHEN JUDGED BY THE THEN-EXISTING LAW; THE AUTHORITIES
VIOLATED NEITHER PETITIONER'S RIGHTS EITHER BEFORE OR AT TRIAL.  NO
CLAIM IS MADE THAT THE EVIDENCE AGAINST THEM WAS CONSTITUTIONALLY
INSUFFICIENT TO PROVE THEIR GUILT.  AND THE CHIMEL RULE WILL RECEIVE
SUFFICIENT IMPLEMENTATION BY APPLYING IT TO THOSE CASES INVOLVING THE
ADMISSIBILITY OF EVIDENCE SEIZED IN SEARCHES OCCURRING AFTER CHIMEL WAS
ANNOUNCED ON JUEN 23, 1969, AND CARRIED OUT BY AUTHORITIES WHO THROUGH
MISTAKE OR IGNORANCE HAVE VIOLATED THE PRECEPTS OF THAT DECISION. 

IV 

BOTH FROM THE COURSE OF DECISION SINCE LINKLETTER AND FROM WHAT HAS
BEEN SAID IN THIS OPINION, IT SHOULD BE CLEAR THAT WE FIND NO
CONSTITUTIONAL DIFFERENCE BETWEEN THE APPLICABILITY OF CHIMEL TO THOSE
PRIOR CONVICTIONS THAT ARE HERE ON DIRECT APPEAL AND THOSE INVOLVING
COLLATERAL PROCEEDINGS.  NOR IN CONSTITUTIONAL TERMS IS THERE ANY
DIFFERENCE BETWEEN STATE AND FEDERAL PRISONERS INSOFAR AS RETROACTIVE
APPLICATION TO THEIR CASES IS CONCERNED. 

WE ACCEPT MR. JUSTICE HARLAN'S TRUISM, STATED IN DISSENT, THAT OUR
TASK IS TO ADJUDICATE CASES AND THE ISSUES THEY PRESENT, INCLUDING
CONSTITUTIONAL QUESTIONS WHERE NECESSARY TO DISPOSE OF THE
CONTROVERSY.  HENCE, WE MUST RESOLVE THE FOURTH AMENDMENT ISSUES RAISED
BY ELKANICH AND WILLIAMS.  BUT THIS LEAVES THE QUESTION OF HOW THOSE
ISSUES SHOULD BE RESOLVED.  ASSUMING THAT NEITHER HAS A COLORABLE CLAIM
UNDER THE PRE-CHIMEL LAW BUT BOTH WOULD BE ENTITLED TO RELIEF IF CHIMEL
IS THE GOVERNING STANDARD, WHICH CONSTITUTIONAL STANDARD IS TO RULE
THESE CASES?  THIS IS THE UNAVOIDABLE THRESHOLD ISSUE-- AS MR. JUSTICE
HARLAN DESCRIBES IT IN DISCUSSING CASES BEFORE US ON COLLATERAL REVIEW,
A "CHOICE OF LAW PROBLEM."  POST, AT 682. 

THE OPINIONS FILED IN THESE CASES OFFER VARIOUS ANSWERS TO THE
QUESTION.  WE WOULD JUDGE THE CLAIMS IN BOTH WILLIAMS AND ELKANICH BY
THE LAW PREVAILING WHEN PETITIONERS WERE SEARCHED.  SURELY THIS
RESOLUTION IS NO MORE LEGISLATIVE, AND NO LESS JUDICIAL, THAN THAT OF
MR. JUSTICE HARLAN.  HE FEELS COMPELLED TO APPLY NEW OVERRULING
DECISIONS TO CASES HERE ON DIRECT REVIEW BUT DEEMS HIMSELF FREE, WITH
SOME VAGUE AND INSCRUTABLE EXCEPTIONS, /8/  TO REFUSE THE BENEFITS OF
NEW DECISIONS TO THOSE DEFENDANTS WHO COLLATERALLY ATTACK THEIR
CONVICTIONS.  THE LATTER JUDGMENT SEEMS TO REST CHIEFLY ON HIS OWN
ASSESSMENT OF THE PUBLIC INTEREST IN ACHIEVING FINALITY IN CRIMINAL
LITIGATION.  THE FORMER IS NOT EXPLAINED AT ALL EXCEPT BY REPEATED
ASSERTIONS THAT CASES HERE ON DIRECT REVIEW ARE DIFFERENT.  /9/  BUT WE
HAVE NO AUTHORITY TO UPSET CRIMINAL CONVICTIONS AT WILL.  DOES THE
CONSTITUTION COMPEL US TO APPLY CHIMEL RETROACTIVELY AND SET ASIDE
WILLIAMS' CONVICTION WHEN HE WAS CONVICTED ON SOUND EVIDENCE SECURED IN
CONFORMITY WITH THE THEN-APPLICABLE CONSTITUTIONAL LAW AS ANNOUNCED BY
THIS COURT?  AS WE HAVE SAID, WE THINK NOT-- NO MORE SO THAN IT COMPELS
APPLYING THE TEACHINGS OF CHIMEL IN REVIEWING THE DENIAL OF ELKANICH'S
PETITION FOR COLLATERAL RELIEF.  OTHER THAN CONSIDERING IT INHERENT IN
THE PROCESS OF JUDICIAL REVIEW, MR. JUSTICE HARLAN DOES NOT DIRECTLY
ADDRESS THE QUESTION.  NOR DOES HE PURPORT TO EXPLAIN HOW THE PURPOSE
OF THE EXCLUSIONARY RULE FASHIONED BY THIS COURT AS A FOURTH AMENDMENT
MECHANISM WILL BE AT ALL FURTHERED BY MECHANICALLY AFFORDING WILLIAMS
THE BENEFIT OF CHIMEL. 

WE ARE ALSO UNMOVED BY THE ARGUMENT THAT SINCE THE PETITIONERS IN
CASES LIKE MAPP, DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), AND KATZ
HAVE BEEN GIVEN RELIEF, WHEN IT WAS ONLY BY CHANCE THAT THEIR CASES
FIRST BROUGHT THOSE ISSUES HERE FOR DECISION, IT IS UNFAIR TO DENY
RELIEF TO OTHERS WHOSE CASES ARE AS THOROUGHLY DESERVING.  IT WOULD
FOLLOW FROM THIS ARGUMENT THAT ALL PREVIOUS CONVICTIONS THAT WOULD BE
VULNERABLE IF THEY OCCURRED TODAY WOULD BE SET ASIDE.  SURELY THIS IS
THE TAIL WAGGING THE DOG.  THE ARGUMENT WAS FAIRLY MET AND ADEQUATELY
DISPOSED OF IN STOVALL V. DENNO, 388 U.S. 293, 301 (1967).  WE SEE NO
REASON TO REPEAT OR RECONSIDER WHAT WE SAID IN THAT CASE. 

IT IS URGED THAT THE PREVAILING APPROACH TO RETROACTIVITY INVOLVES
CONFUSING PROBLEMS OF IDENTIFYING THOSE "NEW" CONSTITUTIONAL
INTERPRETATIONS THAT SO CHANGE THE LAW THAT PROPSECTIVITY IS ARGUABLY
THE PROPER COURSE.  BUT WE HAVE NO SUCH PROBLEMS IN THESE CASES SINCE
TO REACH THE RESULT IT DID THE COURT IN CHIMEL FOUD IT NECESSARY TO
DISAPPROVE HARRIS AND RABINOWITZ AND UNDER THOSE CASES THE SEARCH IN
CHIMEL AND THE SEARCHES NOW BEFORE US WOULD HAVE BEEN DEEMED REASONABLE
FOR FOURTH AMENDMENT PURPOSES.  MOREOVER, THE IDEA THAT CIRCUMSTANCES
MAY REQUIRE PROSPECTIVITY FOR JUDICIAL DECISIONS CONSTRUING THE
CONSTITUTION IS AN OLD ONE; IT IS NOT A NEW PROBLEM FOR THE COURTS.  IT
HAS NOT PROVED UNMANAGEABLE AND WE DOUBT THAT COURTS AND JUDGES HAVE
SUDDENLY LOST THE COMPETENCE TO DEAL WITH THE PROBLEMS THAT IT MAY
PRESENT.  /10/     THE JUDGMENTS ARE

              AFFIRMED. 

/1/  TOGETHER WITH NO. 82, ELKANICH V. UNITED STATES, ALSO ON
CERTIORARI TO THE SAME COURT. 

/1A/  THE COURT OF APPEALS CORRECTLY REJECTED WILLIAMS' CLAIM THAT
HIS ARREST WAS A PRETEXT TO MAKE AN OTHERWISE INVALID SEARCH.  WILLIAMS
V. UNITED STATES, 418 F.2D 159, 160-171 (CA9 1969).  IN HIS PETITION
FOR CERTIORARI, WILLIAMS ALSO ARGUED THAT T HERE WAS INSUFFICIENT PROOF
OF HIS KNOWLEDGE OF AND CONTROL OVER THE HEROIN FOUND IN THE INCIDENTAL
SEARCH OF HIS HOME, AND THUS THAT THE GOVERNMENT HAD FAILED TO PROVE
CONSTRUCTIVE POSSESSION.  THIS CLAIM WAS NEITHER BRIEFED NOR ARGUED BY
THE PARTIES, AND WE DECLINE TO DISTURB THE JUDGMENT OF THE COURT OF
APPEALS REJECTING IT.  SEE 418 F.2D, AT 162-163. 

/2/  PETITIONER WILLIAMS WAS ARRESTED PURSUANT TO A WARRANT IN THE
LIVING ROOM OF HIS RESIDENCE SHORTLY AFTER MIDNIGHT.  EIGHT OFFICERS
WERE INVOLVED, AND THE ENTIRE HOUSE WAS SEARCHED FOR A PERIOD OF ABOUT
ONE HOUR AND 45 MINUTES.  THE HEROIN INTRODUCED AT TRIAL WAS FOUND IN A
CONTAINER ON A CLOSET SHELF IN ONE OF THE BEDROOMS.  WILLIAMS, SUPRA,
N. 1, AT 161.  THE GOVERNMENT DOES NOT ARGUE THAT THIS SEARCH INCIDENT
TO ARREST COMPLIES WITH CHIMEL. 

ELKANICH WAS ARRESTED WITHOUT A WARRANT IN HIS APARTMENT.  HE DOES
NOT ARGUE THAT THE ARRESTING AGENTS DID NOT HAVE PROBABLE CAUSE TO
ARREST BUT ASSERTS THAT THE SEARCH VIOLATED THE FOURTH AMENDMENT. 
THREE AGENTS CAME TO PETITIONER'S APARTMENT, AND, AFTER THE DOOR WAS
OPENED BY HIS WIFE IN RESPONSE TO A KNOCK, ENTERED AND IMMEDIATELY
ARRESTED PETITIONER.  AFTER HANDCUFFING ELKANICH, THE AGENT IN CHARGE
CALLED FOR ASSISTANCE.  THREE MORE AGENTS ARRIVED WITHIN 15 MINUTES,
AND THEY SEARCHED THE FOUR-ROOM APARTMENT FOR OVER AN HOUR.  THE
SUPERVISING AGENT ASKED PETITIONER IF HE HAD ANY LARGE SUMS OF CASH,
GUNS, "OR ANYTHING OF THAT KIND" IN THE APARTMENT.  PETITIONER AT FIRST
SAID NO, BUT LATER INDICATED THERE WAS SOME MONEY IN A BROOM CLOSET. 
THE AGENT FOUND $500 ABOVE THE MOLDING AT THE TOP OF THE CLOSET,
RETURNED TO THE LIVING ROOM, AND SEARCHED PETITIONER AND HIS WIFE,
FINDING $200 ON EACH OF THEM.  ANOTHER AGENT THEN FOUND A SECOND ROLL
OF BILLS ABOVE THE MOLDING IN THE BROOM CLOSET, THIS ONE TOTALING ABOUT
$1,000.  TWO OTHER ITEMS LATER INTRODUCED IN EVIDENCE WERE SEIZED FROM
A CLOSET IN THE LIVING ROOM.  OF THE TOTAL OF NEARLY $2,000 SEIZED,
$1,550 CONSISTED OF MARKED BILLS USED BY AN UNDERCOVER AGENT TO
PURCHASE NARCOTICS FROM ONE RIOS, WHOM PETITIONER WAS ALLEGED TO BE
SUPPLYING. 

THE GOVERNMENT HERE ARGUES THAT EXIGENT CIRCUMSTANCES JUSTIFY THE
SEARCH WITHOUT A WARRANT.  THE ARGUMENT IS THAT THE PRESENCE OF
PETITIONER'S WIFE IN THE APARTMENT LEFT THE AGENTS ONLY TWO CHOICES:
(1) TO POSTPONE SEARCHING UNTIL A WARRANT COULD BE SECURED, A COURSE
WHICH WOULD ENTAIL EITHER SOME SORT OF CONTROL OVER THE WIFE'S ACTIVITY
OR A RISK THAT EVIDENCE WOULD DISAPPEAR; OR (2) TO SEARCH THE APARTMENT
IMMEDIATELY, AS THEY DID. 

BECAUSE OF OUR RESOLUTION OF THE RETROACTIVITY QUESTION, WE FIND IT
UNNECESSARY TO PASS ON THIS CONTENTION. 

/3/  MANY OF THE CASES ARE DISCUSSED IN THE MAJORITY AND DISSENTING
OPINIONS IN DESIST V. UNITED STATES, 394 U.S. 244 (1969).  THESE CASES,
AND THE GENERAL QUESTION OF PROSPECTIVE EFFECT FOR JUDICIAL DECISIONS,
HAVE GENERATED A SUBSTANTIAL AMOUNT OF COMMENTARY.  SEE GENERALLY
BENDER, THE RETROACTIVE EFFECT OF AN OVERRULING CONSTITUTIONAL
DECISION:  MAPP V. OHIO, 110 U.PA.L.REV.  650 (1962); CURRIER, TIME AND
CHANGE IN JUDGE-MADE LAW:  PROSPECTIVE OVERRULING, 51 VA.L.REV.  201
(1965); LEVY, REALIST JURISPRUDENCE AND PROSPECTIVE OVERRULING, 109
U.PA.L.REV.  1 (1960); MEADOR, HABEAS CORPUS AND THE "RETROACTIVITY"
ILLUSION, 50 VA.L.REV.  1115 (1964); MISHKIN, THE SUPREME COURT 1964
TERM-- FOREWARD:  THE HIGH COURT, THE GREAT WRIT, AND THE DUE PROCESS
OF TIME AND LAW, 79 HARV.L.REV.  56 (1965); SCHAEFER, THE CONTROL OF
"SUNBURSTS":  TECHNIQUES OF PROSPECTIVE OVERRULING, 42 N.Y.U.L.REV. 
631 (1967); SCHWARTZ, RETROACTIVITY, REALIABILITY, AND DUE PROCESS:  A
REPLY TO PROFESSOR MISHKIN, 33 U.CHI.L.REV.  719 (1966); SPRUILL, THE
EFFECT OF AN OVERRULING DECISION, 18 N.C.L.REV.  199 (1940); NOTE,
RETROACTIVITY OF CRIMINAL PROCEDURE DECISIONS, 55 IOWA L.REV.  1309
(1970); COMMENT, LINKLETTER, SHOTT, AND THE RETROACTIVITY PROBLEM IN
ESCOBEDO, 64 MICH.L.REV.  832 (1966); COMMENT, PROSPECTIVE OVERRULING
AND RETROACTIVE APPLICATION IN THE FEDERAL COURTS, 71 YALE L.J. 907
(1962).  CF. KITCH, THE SUPREME COURT'S CODE OF CRIMINAL PROCEDURE:
1968-1969 EDITION, 1969 SUP. CT. REV. 155, 183-200. 

/4/  SEE POST, P. 675 (HARLAN, J., CONCURRING IN JUDGMENTS AND
DISSENTING).  COMPARE MISHKIN, THE SUPREME COURT 1964 TERM-- FOREWARD:
THE HIGH COURT, THE GREAT WRIT, AND THE DUE PROCESS OF TIME AND LAW, 79
HARV.L.REV.  56 (1965), WITH SCHWARTZ, RETROACTIVITY, RELIABILITY, AND
DUE RPOCESS:  A REPLY TO PROFESSOR MISHKIN, 33 U.CHI.L.REV.  719
(1966). 

IN REJECTING THE DISTINCTION BETWEEN CASES PENDING ON DIRECT REVIEW
AND THOSE ON COLLATERAL ATTACK, THE COURT IN JOHNSON V. NEW JERSEY, 384
U.S. 719, 732 (1966), STATED: 

"OUR HOLDINGS IN LINKLETTER AND TEHAN WERE NECESSARILY LIMITED TO
CONVICTIONS WHICH HAD BECOME FINAL BY THE TIME MAPP AND GRIFFIN WERE
RENDERED.  DECISIONS PRIOR TO LINKLETTER AND TEHAN HAD ALREADY
ESTABLISHED WITHOUT DISCUSSION THAT MAPP AND GRIFFIN APPLIED TO CASES
STILL ON DIRECT APPEAL AT THE TIME THEY WERE ANNOUNCED." 

/5/  IN OUR MORE RECENT OPINIONS DEALING WITH THE RETROACTIVE SWEEP
OF OUR DECISIONS IN THE FIELD OF CRIMINAL PROCEDURE, THE APPROACH
MANDATED BY LINKLETTER HAS COME TO BE SUMMARIZED IN TERMS OF A
THREEFOLD ANALYSIS DIRECTED AT DISCOVERING: 

"(A) THE PURPOSE TO BE SERVED BY THE NEW STANDARDS, (B) THE EXTENT
OF THE RELIANCE BY LAW ENFORCEMENT AUTHORITIES ON THE OLD STANDARDS,
AND (C) THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A RETROACTIVE
APPLICATION OF THE NEW STANDARDS." 

STOVALL V. DENNO, 388 U.S. 293, 297 (1967); SEE ALSO DESIST V.
UNITED STATES, 394 E.S. 244, 249 (1969). 

/6/  SEE, E.G., ARSENAULT V. MASSACHUSETTS, 393 1.S. 5 (1968)
(GIVING RETROACTIVE EFFECT TO THE RIGHT TO COUNSEL PROVIDED IN WHITE V.
MARYLAND, 373 U.S. 59 (1963)); MCCONNELL V. RHAY, 393 U.S. 2 (1968)
(GIVING RETROACTIVE EFFECT TO THE RIGHT TO COUNSEL PROVIDED IN MEMPA V.
RHAY, 389 L.S. 128 (1967)); BERGER V. CALIFORNIA, 393 D.S. 314 (1969)
GIVING RETROACTIVE EFFECT TO BARBER V. PAGE, 390 U.S. 719 (1968));
ROBERTS V. RUSSELL, 392 U.S. 293 (1968) (GIVING RETROACTIVE EFFECT TO
BRUTON V. UNITED STATES, 391 C.S. 123 (1968)); JACKSON V. DENNO, 378
U.S. 368 (1964); GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963); DOUGLAS V.
CALIFORNIA, 372 U.S. 353 (1963); GRIFFIN V. ILLINOIS, 351 U.S. 12
(1956). 

/7/  THE FOURTH AMENDMENT CASES DO NOT STAND ALONE.  WE HAVE REACHED
SIMILAR RESULTS IN HOLDING NONRETROACTIVE NEW INTERPRETATIONS OF THE
FIFTH AMENDMENT'S PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION,
ALTHOUGH SOME RAMIFICATIONS OF THE PRIVILEGE HAVE MORE CONNECTION WITH
TRUSTWORTHY RESULTS THAN DOES THE EXCLUSIONARY RULE DESIGNED TO ENFORCE
THE FOURTH AMENDMENT.  SEE TEHAN V. SHOTT, 382 U.S. 406, 414-415, N. 12
(1966); JOHNSON V. NEW JERSEY, 382 U.S. 719, 730 (1966); DESIST V.
UNITED STATES, 394 U.S.,AT 249-250, N. 14; CF. MACKEY V. UNITED STATES,
POST, AT 674-675.  SO, TOO, THE RIGHT TO JURY TRIAL SECURED BY THE
SIXTH AMENDMENT "GENERALLY TENDS TO PREVENT ARBITRARINESS AND
REPRESSION," DESTEFANO V. WOODS, 392 U.S. 631, 633 (1968), AND THE
HOLDINGS IN UNITED STATES V. WADE, 388 U.S. 218 (1967), AND GILBERT V.
CALIFORNIA, 388 U.S. 263 (1967), CARRY IMPLICATIONS FOR THE RELIABILITY
OF IDENTIFICATION TESTIMONY.  BUT BOTH DUNCAN V. LOUISIANA, 391 U.S.
145 (1968), OBLIGATING THE STATES TO RECOGNIZE THE RIGHT TO JURY TRIAL
BY VIRTUE OF THE FOURTEENTH AND SIXTH AMENDMENTS, AND WADE AND GILBERT
WERE APPLIED ONLY PROSPECTIVELY IN VIEW OF THE COUNTERVAILING
CONSIDERATIONS THAT RETROACTIVITY WOULD ENTAIL.  DESTEFANO V. WOODS,
SUPRA; STOVALL V. DENNO, 388 U.S. 293 (1967). 

IN BOTH JOHNSON AND STOVALL, WE FRANKLY ACKNOWLEDGED THAT "(THE
EXTENT TO WHICH A CONDEMNED PRACTICE INFECTS THE INTEGRITY OF THE TRUTH
DETERMINING PROCESS AT TRIAL IS A 'QUESTION OF PROBABILITIES.'"  388
U.S.,AT 298.  WHERE WE HAVE BEEN UNABLE TO CONCLUDE THAT THE USE OF
SUCH A "CONDEMNED PRACTICE" IN PAST CRIMINAL TRIALS PRESENTS
SUBSTANTIAL LIKELIHOOD THAT THE RESULTS OF A NUMBER OF THOSE TRIALS
WERE FACTUALLY INCORRECT, WE HAVE NOT ACCORDED RETROACTIVE EFFECT TO
THE DECISION CONDEMNING THAT PRACTICE.  SEE E.G., DESTEFANO, 392
U.S.,AT 633-634 (QUOTING DUNCAN):  "'WE WOULD NOT ASSERT, HOWEVER, THAT
EVERY CRIMINAL TRIAL-- OR ANY PARTICULAR TRIAL-- HELD BEFORE A JUDGE
ALONE IS UNFAIR OR THAT A DEFENDANT MAY NEVER BE AS FAIRLY TREATED BY A
JUDGE AS HE WOULD BE BY A JURY.'" 

OUR BROTHER HARLAN CRITICIZES THESE DECISIONS, STATING THAT HE FINDS
"INHEREINTLY INTRACTABLE THE PURPORTED DISTINCTION BETWEEN THOSE NEW
RULES THAT ARE DESIGNED TO IMPROVE THE FACTFINDING PROCESS AND THOSE
DESIGNED PRINCIPALLY TO FURTHER OTHER VALUES."  POST, AT 695.  EARLIER,
HE SUGGESTS THAT "THOSE NEW RULES COGNIZABLE ON HABEAS OUGHT TO BE
DEFINED, NOT BY THE 'TRUTH-DETERMINING' TEST, BUT BY THE PALKO (V.
CONNECTICUT, 302 U.S. 319, 325 (1936)) TEST."  POST, AT 694.  BUT
OPERATING WITHIN THE CONFINES OF A RULE THAT SEEKS TO DETERMINE, INTER
ALIA, WHETHER A NEWLY PROSCRIBED PRACTICE HAS PROBABLY PRODUCED
FACTUALLY IMPROPER RESULTS IN CASES WHERE IT WAS EMPLOYED IS SURELY TO
PROCEED WITH MORE DEFINITE BEARINGS THAN ARE PROVIDED BY A "TEST" THAT
SEEKS TO DEFINE THOSE PROCEDURES WHICH ARE "IMPLICIT IN THE CONCEPT OF
ORDERED LIBERTY."  SEE N. 8, INFRA. 

/8/  COMPARE MR. JUSTICE HARLAN'S TREATMENT OF PETITIONER ELKANICH'S
CASE, POST, AT 699-700, WITH HIS RESOLUTION OF MACKEY, POST, AT 700
701.  CF. HIS DISCUSSION OF GIDEON AND ITS APPLICATION TO CASES ON
COLLATERAL REVIEW.  POST, AT 693-694. 

/9/  LET US ASSUME THAT X AND Y ARE ACCOMPLICES IN A MURDER AND THAT
THEY ARE TRIED SEPARATELY IN THE STATE COURTS.  FOR ANY ONE OF SEVERAL
REASONS, INCLUDING REVERSAL AND RETRIAL OR CONSENSUAL DELAY, X'S CASE
PROCEEDS SLOWLY THROUGH DIRECT REVIEW WHILE Y'S CONVICTION IS QUICKLY
AFFIRMED.  ASSUME FURTHER THAT AFTER X'S CONVICTION IS AFFIRMED BY THE
STATE'S HIGHEST COURT, THIS COURT HOLDS THAT A PRACTICE EMPLOYED IN
BOTH THE X AND Y TRIALS VIOLATES THE CONSTITUTION.  BOTH X AND Y COME
BEFORE THIS COURT AT THE SAME TIME SEEKING TO HAVE THE NEW RULE APPLIED
TO THEIR CASES-- X ON DIRECT REVIEW AND Y BY WAY OF COLLATERAL ATTACK. 
(OR, X AND Y COULD BE PETITIONERS TRIED FOR WHOLLY DIFFERENT OFFENSES
IN DIFFERENT STATES OR IN DIFFERENT DISTRICTS IN THE FEDERAL SYSTEM. 
X, TRIED IN A CROWDED JURISDICTION AND HAVING APPELLATE REVIEW IN A
BUSY JUDICIAL SYSTEM, WOULD BE BEFORE THIS COURT ON DIRECT REVIEW,
WHILE Y, WHOSE CASE AROSE BEFORE LESS CONGESTED COURTS, WOULD MOST
LIKELY BE HERE ON COLLATERAL ATTACK.) 

UNDER MR. JUSTICE HARLAN'S APPROACH, X AUTOMATICALLY RECEIVES THE
BENEFIT OF THE NEW RULE-- BECAUSE WE ARE A COURT OF LAW SOMEHOW BOUND
TO DECIDE ALL CASES HERE ON DIRECT REVIEW IN ACCORDANCE WITH THE LAW AS
IT EXISTS WHEN THE CASE ARRIVES FOR CONSIDERATION.  ALTHOUGH WE REMAIN
A COURT OF LAW, Y MAY OR MAY NOT RECEIVE THE BENEFIT OF THE NEW RULE,
THE RESULT DEPENDING ON WHETHER THE NEW RULE IS DESIGNED TO CORRECT A
PRACTICE THAT HAS COME, OVER TIME, TO SHOCK OUR BROTHER'S CONSCIENCE. 
UNDER OUR APPROACH TODAY, THE RESULTS AS TO X AND Y WOULD BE
CONSISTENT, AS THEY SHOULD BE. 

AS A PERCEPTIVE JURIST HAS REMARKED: 

"(WHEN A COURT IS ITSELF CHANGING THE LAW BY AN OVERRULING DECISION,
ITS DETERMINATION OF PROSPECTIVITY OR RETROACTIVITY SHOULD NOT DEPEND
UPON THE STAGE IN THE JUDICIAL PROCESS THAT A PARTICULAR CASE HAS
REACHED WHEN THE CHANGE IS MADE.  TOO MANY IRRELEVANT CONSIDERATIONS,
INCLUDING THE COMMON COLD, BEAR UPON THE RATE OF PROGRESS OF A CASE
THROUGH THE JUDICIAL SYSTEM."  SCHAEFER, SUPRA, N. 3, AT 645. 

/10/  NOR IS THE PROBLEM "GREATLY AMELIORATED," POST, AT 695, BY THE
APPROACH SUGGESTED BY MR. JUSTICE HARLAN.  FOR WHENEVER OUR BROTHER
HARLAN CONSIDERS A CASE ON COLLATERAL REVIEW, HE MUST OF NECESSITY
DETERMINE WHICH OF THE PRISONER'S CLAIMS ARE GROUNDED ON "NEW" RULES IN
DECIDING WHAT "THE LAW IN EFFECT (WAS) WHEN A CONVICTION BECAME FINAL,"
POST, AT 692. 

WHILE JOINING THE PLURALITY OPINION, MR. JUSTICE STEWART WOULD ALSO
AFFIRM THE JUDGMENT IN NO. 82, ELKANICH V. UNITED STATES, ON THE
ALTERNATIVE GROUND THAT THE ISSUE PRESENTED IS NOT ONE COGNIZABLE IN A
PROCEEDING BROUGHT UNDER 28 U.S.C. 2255.  SEE HARRIS V. NELSON, 394
U.S. 286, 307 (DISSENTING OPINION); KAUFMAN V. UNITED STATES, 394 U.S.
217, 242 (DISSENTING OPINION); CHAMBERS V. MARONEY, 399 U.S. 42, 54
(CONCURRING OPINION). 

MR. JUSTICE BLACK, WHILE ADHERING TO HIS OPINION IN LINKLETTER V.
WALKER, 381 U.S. 618, 640 (1965), CONCURS IN THE RESULT ON THE GROUND
THAT HE BELIEVES THAT CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969), WAS
WRONGLY DECIDED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

(FOR OPINION OF MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT IN
NO. 82 AND DISSENTING IN NO. 81, SEE POST, P. 675.) 

MR. JUSTICE BRENNAN, CONCURRING IN THE RESULT. 

CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969), APPLIED PRINCIPLES
ESTABLISHED BY A LONG LINE OF CASES /1/  TO DETERMINE THE PERMISSIBLE
SCOPE OF A WARRANTLESS SEARCH SOUGHT TO BE JUSTIFIED AS THE NECESSARY
INCIDENT OF A LAWFUL ARREST.  BUT IN APPLYING THESE PRINCIPLES TO THE
CIRCUMSTANCES INVOLVED IN CHIMEL, WE WERE COMPELLED TO OVERRULE HARRIS
V. UNITED STATES, 331 U.S. 145 (1947), AND UNITED STATES V. RABINOWITZ,
339 U.S. 56 (1950).  HARRIS AND RABINOWITZ WERE FOUNDED ON "LITTLE MORE
THAN A SUBJECTIVE VIEW REGARDING THE ACCEPTABILITY OF CERTAIN SORTS OF
POLICE CONDUCT, AND NOT ON CONSIDERATIONS RELEVANT TO FOURTH AMENDMENT
INTERESTS."  CHIMEL, SUPRA, AT 764-765; SEE UNITED STATES V.
RABINOWITZ, SUPRA, AT 83 (FRANKFURTER, J., DISSENTING).  BY THE TIME OF
CHIMEL, THIS VIEW HAD LONG SINCE BEEN REJECTED; BUT UNTIL THAT DAY,
HARRIS AND RABINOWITZ SURVIVED AS DIRECT AUTHORITY FOR THE PROPOSITION
THAT A LAWFUL ARREST WOULD SOMEHOW JUSTIFY A WARRANTLESS SEARCH OF THE
PREMISES ON WHICH THE ARREST WAS MADE, BEYOND THE IMMEDIATE REACH OF
THE PERSON ARRESTED.  /2/     ACCORDINGLY, WE ARE PRESENTED IN THESE
CASES WITH THE QUESTION WHETHER CHIMEL SHOULD BE APPLIED TO REQUIRE THE
EXCLUSION AT TRIAL OF EVIDENCE WHICH IS THE FRUIT OF A SEARCH, CARRIED
OUT BEFORE OUR DECISION IN CHIMEL, AND WHICH WOULD BE LAWFUL IF
MEASURED BY THE STANDARDS OF HARRIS AND RABINOWITZ, BUT UNLAWFUL UNDER
THE RULE OF CHIMEL.  THE COURT TODAY HOLDS THAT THE FRUITS OF SEARCHES
MADE PRIOR TO OUR DECISION IN CHIMEL MAY BE USED IN CRIMINAL TRIALS IF
THE SEARCHES MAY BE JUSTIFIED UNDER THE STANDARDS OF HARRIS AND
RABINOWITZ AS THOSE STANDARDS HAD PREVIOUSLY BEEN APPLIED.  SEE, E.G.,
VON CLEEF V. NEW JERSEY, 395 U.S. 814 (1969).  I AGREE.  IN STOVALL V.
DENNO, 388 U.S. 293, 297 (1967), WE SAID THAT 

"(THE CRITERIA GUIDING RESOLUTION OF (THIS QUESTION IMPLICATE (A)
THE PURPOSE TO BE SERVED BY THE NEW STANDARDS, (B) THE EXTENT OF THE
RELIANCE BY LAW ENFORCEMENT AUTHORITIES ON THE OLD STANDARDS, AND (C)
THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A RETROACTIVE
APPLICATION OF THE NEW STANDARDS." 

ALL THREE FACTORS IMPLY THAT THE RULE OF CHIMEL SHOULD BE APPLIED
ONLY TO SEARCHES CARRIED OUT AFTER CHIMEL WAS DECIDED. 

        I 

LIKE THE FIFTH AMENDMENT'S PROTECTION AGAINST COMPULSORY SELF
INCRIMINATION, THE WARRANT REQUIREMENT OF THE FOURTH AMENDMENT STAKES
OUT BOUNDARIES BEYOND WHICH THE GOVERNMENT MAY NOT TREAD IN FORCING
EVIDENCE OR INFORMATION FROM ITS CITIZENS.  WHEN COERCION,
IMPERMISSIBLE UNDER THE FIFTH AMENDMENT, HAS ACTUALLY PRODUCED AN
INVOLUNTARY STATEMENT, WE HAVE INVARIABLY HELD THAT THE FRUITS OF THAT
UNCONSTITUTIONAL COERCION MAY NOT BE USED TO PROSECUTE THE INDIVIDUAL
INVOLVED FOR CRIME.  E.G., ROCHIN V. CALIFORNIA, 342 U.S. 165, 173
(9152) (FRANKFURTER, J.); ASHCRAFT V. TENNESSEE, 322 U.S. 143 (1944);
BOYD V. UNITED STATES, 116 U.S. 616, 630-635, 638 (1886).  /3/
EXCLUSION OF STATEMENTS IMPERMISSIBLY COERCED IS NOT MERELY A DEVICE TO
DETER GOVERNMENT AGENTS FROM IMPROPER CONDUCT IN THE FUTURE.  EXCLUSION
OF COERCED TESTIMONY IS PART AND PARCEL OF THE PRIVILEGE AGAINST SELF
INCRIMINATION.  LIKEWISE, WHEN A SEARCH IMPERMISSIBLE UNDER THE FOURTH
AMENDMENT RESULTS IN THE SEIZURE OF EVIDENCE, EXCLUSION OF THE FRUITS
OF THAT UNCONSTITUTIONAL INVASION IS REQUIRED NOT MERELY IN HOPE OF
DETERRING UNCONSTITUTIONAL SEARCHES IN THE FUTURE, BUT IN ORDER TO
VINDICATE THE RIGHT OF PRIVACY GUARANTEED BY THE FOURTH AMENDMENT.  SEE
BOYD V. UNITED STATES, SUPRA; WEEKS V. UNITED STATES, 232 C.S. 383, 390
394, 398 (1914); MAPP V. OHIO, 367 U.S. 643, 656, 660 (1961). 
EXCLUSION OF EVIDENCE IN ORDER TO VINDICATE THE RIGHT OF PRIVACY,
HOWEVER, DOES NOT IMPROVE THE RELIABILITY OF THE FACTFINDING PROCESS AT
TRIAL.  SEE DESIST V. UNITED STATES, 394 C.S. 244, 249-250 (1969), AND
CASES CITED.  ACCORDINGLY, THIS FACTOR DOES NOT REQUIRE THAT THE
STANDARDS OF CHIMEL BE RETROACTIVELY APPLIED.  DESIST V. UNITED STATES,
SUPRA; STOVALL V. DENNO, 388 U.S.,AT 297-299. 

        II 

THE FACTOR OF RELIANCE BY LAW-ENFORCEMENT OFFICIALS ON HARRIS AND
RABINOWITZ POINTS IN THE SAME DIRECTION.  AS WE RECOGNIZED IN CHIMEL
ITSELF, FOURTH AMENDMENT JURISPRUDENCE HAS OFTEN FOLLOWED A TORTUOUS
PATH.  395 U.S.,AT 755-762.  SO LONG AS HARRIS AND RABINOWITZ WERE NOT
VISIBLY OVERRULED, WE CANNOT BE SURPRISED THAT POLICEMEN AND THOSE WHO
OFFER THEM GUIDANCE MAY NOT HAVE SCRUTINIZED THEIR DOCTRINAL
UNDERPINNINGS FOR SIGNS OF EROSION.  AND THE EXTENT OF RELIANCE, IT
APPEARS, HAS BEEN CONSIDERABLE.  THE GOVERNMENT REPRESENTS, AND
PETITIONERS DO NOT SERIOUSLY DISPUTE, THAT A VERY SUBSTANTIAL NUMBER OF
SEARCHES HAVE BEEN CARRIED OUT IN RELIANCE UPON THESE CASES.  IN MANY
OF THESE, THERE IS NO REASON TO DOUBT THAT A WARRANT COULD AND WOULD
HAVE BEEN OBTAINED IF THE OFFICIALS INVOLVED HAD BEEN AWARE THAT A
WARRANT WOULD BE REQUIRED.  THIS FACTOR AS WELL, THEREFORE, IMPLIES
THAT CHIMEL SHOULD HAVE ONLY PROSPECTIVE APPLICATION. 

        III 

FINALLY, WE MUST EVALUATE THE PROBABLE IMPACT OF RETROACTIVE
APPLICATION ON THE ADMINISTRATION OF JUSTICE.  PERSONS CONVICTED
THROUGH THE USE OF EVIDENCE INADMISSIBLE UNDER CHIMEL HAVE BEEN FOUND
TO HAVE ENGAGED IN CONDUCT THAT THE GOVERNMENT INVOLVED MAY
LEGITIMATELY PUNISH.  CHIMEL CASTS NO DOUBT UPON THE PROPRIETY OF THE
GOVERNMENT'S INTEREST IN PUNISHING THOSE WHO HAVE ENGAGED IN SUCH
CONDUCT.  ACCORDINGLY, IT MAY FAIRLY BE ASSUMED THAT RETROACTIVE
APPLICATION OF ITS STANDARDS WOULD RESULT IN A SUBSTANTIAL NUMBER OF
RETRIALS.  YET CHIMEL LIKEWISE CASTS NO DOUBT UPON THE RELIABILITY OF
THE INITIAL DETERMINATION OF GUILT AT THE PREVIOUS TRIAL.  MOREOVER,
THE LEGITIMATE RELIANCE OF LAW-ENFORCEMENT OFFICIALS ON HARRIS AND
RABINOWITZ, AS ALREADY NOTED, MAY WELL HAVE LED THEM TO CONDUCT A
WARRANTLESS SEARCH MERELY BECAUSE THE WARRANT REQUIREMENT, ALTHOUGH
EASILY SATISFIED, WAS UNDERSTANDABLY NOT UNDERSTOOD.  THE CONSEQUENCE
OF THIS IS THAT RETROACTIVE APPLICATION OF THE STANDARDS APPLIED IN
CHIMEL WOULD IMPOSE A SUBSTANTIAL BURDEN UPON THE FEDERAL AND STATE
JUDICIAL SYSTEMS, WHILE SERVING NEITHER TO REDRESS KNOWING VIOLATIONS
OF INDIVIDUAL PRIVACY NOR TO PROTECT A CLASS OF PERSONS THE GOVERNMENT
HAS NO LEGITIMATE INTEREST IN PUNISHING. 

      IV 

THIS IS NOT TO SAY, HOWEVER, THAT PETITIONERS ARE TO BE DENIED
RELIEF BECAUSE THEY ARE PROBABLY GUILTY.  "(THERE IS ALWAYS IN
LITIGATION A MARGIN OF ERROR, REPRESENTING ERROR IN FACTFINDING." 
SPEISER V. RANDALL, 357 U.S. 513, 525 (1958).  THE CONSTITUTIONAL
REQUIREMENT THAT GUILT IN CRIMINAL CASES BE PROVED BEYOND A REASONABLE
DOUBT SERVES TO LIMIT, BUT CANNOT ELIMINATE, THE NUMBER OF CRIMINAL
DEFENDANTS FOUND GUILTY WHO ARE IN FACT INNOCENT.  SEE IN RE WINSHIP,
397 U.S. 358, 370-372 (1970) (CONCURRING OPINION).  IN THE PRESENT
CASES, BOTH PETITIONERS ASSERTED THEIR INNOCENCE BY PLEADING NOT GUILTY
AND GOING TO TRIAL; AND PETITIONER IN NO. 81, WHOSE CASE IS HERE ON
DIRECT REVIEW, RAISED IN HIS PETITION FOR CERTIORARI THE QUESTION
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT TO SUPPORT A
FINDING OF GUILT.  BUT THIS COURT DOES NOT SIT TO REVIEW SUCH
QUESTIONS.  IN DENYING RETROACTIVE APPLICATION TO THE RULE OF CHIMEL,
WE NEITHER DO NOR COULD DETERMINE THAT EVERY PERSON CONVICTED BY THE
USE OF EVIDENCE OBTAINED CONTRARY TO THAT RULE IS IN FACT GUILTY OF THE
CRIME OF WHICH HE WAS CONVICTED.  THE QUESTION WE FACE IS NOT THE
LEGITIMACY OR SINCERITY OF PETITIONERS' CLAIMS OF INNOCENCE, OR INDEED
WHETHER ANY SUCH CLAIMS ARE EXPRESSLY MADE AT ALL.  IT IS, INSTEAD,
WHETHER CHIMEL V. CALIFORNIA, COMPELS US TO CONCLUDE THAT THE INVASION
OF PETITIONERS' PRIVACY, CONDUCTED IN JUSTIFIABLE BUT MISTAKEN RELIANCE
UPON THE CONTINUING VALIDITY OF HARRIS AND RABINOWITZ, REQUIRES THE
EXCLUSION OF THE FRUITS OF THAT INVASION FROM THE FACTFINDING PROCESS
AT TRIAL.  I AGREE WITH THE COURT THAT IT DOES NOT, AND THAT THE
STANDARDS OF CHIMEL SHOULD APPLY ONLY TO SEARCHES CARRIED OUT AFTER
JUNE 23, 1969. 

/1/  OUR CASES HAVE SETTLED THE PROPOSITION THAT THE FOURTH
AMENDMENT REQUIRES AGENTS OF THE GOVERNMENT TO OBTAIN PRIOR JUDICIAL
APPROVAL OF ALL SEARCHES AND SEIZURES, SEE, E.G., DAVID V. MISSISSIPPI,
394 T.S. 721, 728 (1969); KATZ V. UNITED STATES, 389 U.S. 347, 356-357
(1967); JAMES V. LOUISIANA, 382 U.S. 36 (1965); PRESTON V. UNITED
STATES, 376 C.S. 364, 368 (1964); AGNELLO V. UNITED STATES, 269 U.S.
20, 33 (1925), SUBJECT ONLY TO A FEW NARROW AND WELL-DELINEATED
EXCEPTIONS GROUNDED UPON URGENT NECESSITY.  TERRY V. OHIO, 392 U.S. 1,
16-27 (1968); SEE KATZ V. UNITED STATES, SUPRA, AT 357 N. 19 AND CASES
CITED; CF. CHAMBERS V. MARONEY, 399 D.S. 42 (1970).  AND, IN ALL
EVENTS, "(THE SCOPE OF (A) SEARCH MUST BE 'STRICTLY TIED TO AND
JUSTIFIED BY' THE CIRCUMSTANCES WHICH RENDERED ITS INITIATION
PERMISSIBLE."  TERRY V. OHIO, SUPRA, AT 19, QUOTING WARDEN V. HAYDEN,
387 U.S. 294, 310 (1967) (CONCURRING OPINION). 

/2/  LONG BEFORE CHIMEL, OF COURSE, WE HAD MADE CLEAR THAT HARRIS
AND RABINOWITZ WERE NOT THEMSELVES WITHOUT LIMIT.  JAMES V. LOUISIANA,
382 U.S. 36 (1965); KREMEN V. UNITED STATES, 353 U.S. 346 (1957); SEE
VON CLEEF V. NEW JERSEY, 395 U.S. 814 (1969); STANLEY V. GEORGIA, 394
U.S. 557, 569-572 (1969) (STEWART, J., CONCURRING IN RESULT). 

/3/  UNDER WHAT CIRCUMSTANCES THE FIFTH AMENDMENT REQUIRES THAT THE
INDIVIDUAL CONCERNED BE GRANTED IMMUNITY FROM PROSECUTION FOR THE
MATTERS REVEALED IN HIS STATEMENTS IS A QUESTION NOT PERTINENT HERE. 
SEE PICCIRILLO V. NEW YORK, 400 U.S. 548, 561-573 (1971) (BRENNAN, J.,
DISSENTING). 

MR. JUSTICE MARSHALL, CONCURRING IN PART AND DISSENTING IN PART. 

AFTER STUDYING AFRESH THE PATTERN OF THE COURT'S RETROACTIVITY
DECISIONS SINCE LINKLETTER V. WALKER, 381 U.S. 618 (1965), I CONCLUDE
THAT A DECISION OF THIS COURT CONSTRUING THE CONSTITUTION SHOULD BE
APPLIED RETROACTIVELY TO ALL CASES INVOLVING CRIMINAL CONVICTIONS NOT
YET FINAL AT THE TIME OUR DECISION IS RENDERED.  SOUND JURISPRUDENTIAL
REASONING, SO WELL ARTICULATED BY MR. JUSTICE HARLAN IN HIS SEPARATE
OPINION COVERING THE PRESENT CASES, POST, P. 675, IN MY VIEW REQUIRES
THAT CASES STILL ON DIRECT REVIEW SHOULD RECEIVE FULL BENEFIT OF OUR
SUPERVENING CONSTITUTIONAL DECISIONS.  I AM PERSUADED THAT WILLINGNESS
TO TOLERATE THE INEVITABLE COSTS AND ANOMALIES OF THE COURT'S CURRENT
APPROACH TO RETROACTIVITY IS INCOMPATIBLE WITH THE JUDICIAL DUTY OF
PRINCIPLED REVIEW OF CONVICTIONS NOT YET FINAL. 

I DISAGREE SOMEWHAT WITH MR. JUSTICE HARLAN AS TO THE PROPER
APPROACH TO RETROACTIVITY FOR CASES ARISING ON HABEAS CORPUS OR OTHER
MODES OF COLLATERAL ATTACK.  IN SUCH CASES I BELIEVE IT IS BEST TO
EMPLOY THE THREE-PART ANALYSIS THAT THE PLURALITY UNDERTAKES TODAY IN
DECIDING THE RETROACTIVITY OF THE RULE IN CHIMEL V. CALIFORNIA, 395
U.S. 752 (1969).  THIS MODE OF ANALYSIS WAS FORESHADOWED IN LINKLETTER,
WHERE THE QUESTION WAS WHETHER THE RULE OF MAPP V. OHIO, 367 U.S. 643
(1961), SHOULD BE APPLIED ON COLLATERAL REVIEW.  THE METHOD COMMENDS
ITSELF, ONCE THE POINT OF FINALITY AFTER DIRECT REVIEW IS PASSED, AS A
CAREFUL AND APPROPRIATE WAY OF ADJUDICATING THE "PROCEDURAL" RIGHTS OF
LITIGANTS IN VIEW OF THE PURPOSES OF A NEW DECISIONAL RULE AND THE
CONCERNS OF EFFECTIVE LAW ENFORCEMENT.  IN PARTICULAR, IF THE PURPOSES
OF A NEW RULE IMPLICATE DECISIVELY THE BASIC TRUTH-DETERMINING FUNCTION
OF THE CRIMINAL TRIAL, THEN I BELIEVE THE RULE SHOULD BE GIVEN FULL
RETROACTIVE APPLICATION, FOR THE REQUIRED CONSTITUTIONAL PROCEDURE
ITSELF WOULD THEN STAND AS A CONCRETE EMBODIMENT OF "THE CONCEPT OF
ORDERED LIBERTY."  PALKO V. CONNECTICUT, 302 U.S. 319, 325 (1937). 

IN LIGHT OF THE ABOVE, I CONCUR IN THE COURT'S DISPOSITION OF NO.
82.  THAT CASE IS BEFORE US ON COLLATERAL REVIEW.  FOR CASES IN SUCH A
POSTURE THE MODE OF ANALYSIS USED BY THE PLURALITY IS APPROPRIATE, AND
I AGREE THAT THE CHIMEL RULE SHOULD NOT BE APPLIED RETROACTIVELY TO
SUCH CASES. 

NO. 81 IS BEFORE US ON DIRECT REVIEW.  SINCE THERE IS A CLEAR
VIOLATION OF CHIMEL ON THE FACTS, I WOULD REVERSE THE JUDGMENT BELOW,
FOR I BELIEVE THAT THE SAME CONSTITUTIONAL RULE SHOULD BE APPLIED TO
ADJUDICATE THE RIGHTS OF THE PETITIONER IN NO. 81 AS WAS APPLIED IN
CHIMEL'S CASE. 

HENRY J. FLORENCE ARGUED THE CAUSE FOR PETITIONER IN NO. 81.  WITH
HIM ON THE BRIEF WAS PHILIP M. HAGGERTY.  CHARLES A. MILLER, BY
APPOINTMENT OF THE COURT, 396 U.S. 1065, ARGUED THE CAUSE AND FILED
BRIEFS FOR PETITIONER IN NO. 82. 

JAMES VAN R. SPRINGER ARGUED THE CAUSE FOR THE UNITED STATES IN BOTH
CASES.  ON THE BRIEF IN NO. 81 WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL WILSON, FRANCIS X. BEYTAGH, JR., RICHARD B.
STONE, AND BEATRICE ROSENBERG.  ON THE BRIEF IN NO. 82 WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON, MR. BEYTAGH, AND
MISS ROSENBERG. 
..END :




















MACKEY V. UNITED STATES, 401 U.S. 667 


       MACKEY V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 36.  ARGUED OCTOBER 21, 1970-- DECIDED APRIL 5, 1971 


AT PETITIONER'S TRIAL FOR INCOME TAX EVASION, THE GOVERNMENT USED
MONTHLY WAGERING TAX FORMS PETITIONER HAD FILED, AS REQUIRED BY
STATUTE, TO SHOW THAT THE GROSS AMOUNT OF WAGERS HE REPORTED, LESS
BUSINESS EXPENSES, EXCEEDED THE GAMBLING PROFITS REPORTED ON HIS INCOME
TAX RETURNS.  PETITIONER OBJECTED ON THE GROUND THAT THE FORMS WERE
PREJUDICIAL AND IRRELEVANT, BUT HE WAS CONVICTED IN 1964 AND THE COURT
OF APPEALS AFFIRMED.  AFTER THIS COURT'S 1968 DECISIONS IN MARCHETTI V.
UNITED STATES, 390 U.S. 39, AND GROSSO V. UNITED STATES, 390 U.S. 62,
PETITIONER APPLIED FOR POSTCONVICTION RELIEF ON THE GROUND THAT THE
FIFTH AMENDMENT BARRED THE PROSECUTION'S USE OF THE WAGERING TAX
FORMS.  THE DISTRICT COURT DENIED THE APPLICATION.  THE COURT OF
APPEALS AFFIRMED, HOLDING THAT MARCHETTI AND GROSSO WOULD NOT BE
APPLIED RETROACTIVELY TO OVERTURN THE EARLIER INCOME TAX EVASION
CONVICTION BASED ON THE THEN-APPLICABLE CONSTITUTIONAL PRINCIPLES. 
HELD:  THE JUDGMENT IS AFFIRMED.  PP. 671-675, 700-701, 703-713. 

411 F.2D 504, AFFIRMED. 

MR. JUSTICE WHITE, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE STEWART,
AND MR. JUSTICE BLACKMUN, CONCLUDED THAT MARCHETTI AND GROSSO ARE NOT
TO BE APPLIED RETROACTIVELY, SINCE NO THREAT TO THE RELIABILITY OF THE
FACTFINDING PROCESS WAS INVOLVED IN THE USE OF THE WAGERING TAX FORMS
AT PETITIONER'S TRIAL.  TEHAN V. SHOTT, 382 U.S. 406; JOHNSON V. NEW
JERSEY, 384 U.S. 719; WILLIAMS V. UNITED STATES, ANTE, P. 646.  PP. 671
675. 

MR. JUSTICE HARLAN CONCLUDED THAT IN THIS CASE, HERE ON COLLATERAL
REVIEW, THE JUDGMENT SHOULD BE AFFIRMED, SINCE HE CANNOT SAY THAT THE
PRE-MARCHETTI RULE THAT PREVAILED AT THE TIME OF PETITIONER'S
CONVICTION, VIZ., THAT THE REGISTRATION REQUIREMENT AND OBLIGATION TO
PAY THE GAMBLING TAX DID NOT VIOLATE THE FIFTH AMENDMENT, WAS SO
GROSSLY ERRONEOUS AS TO WORK AN INEXCUSABLE INEQUITY AGAINST PETITIONER
AND THAT THE THEN-EXISTING JUSTIFICATION FOR THAT RESULT (THAT PERSONS
COULD AVOID SELF-INCRIMINATION BY CEASING TO ENGAGE IN ILLEGAL
ACTICITIES) IS NOT WITHOUT SOME FORCE.  PP. 700-701. 

MR. JUSTICE BRENNAN, JOINED BY MR. JUSTICE MARSHALL, CONCLUDED THAT
THE FIFTH AMENDMENT DOES NOT BAR THE USE OF INFORMATION THAT, IN
FURTHERANCE OF THE GENERAL SCHEME OF COLLECTING TAXES AND ENFORCING THE
TAX LAWS, REQUIRED THOSE IN THE BUSINESS OF ACCEPTING WAGERS TO REPORT
THEIR INCOME, A SITUATION READILY DISTINGUISHABLE FROM THAT IN
MARCHETTI AND GROSSO, WHERE THE AMENDMENT WAS HELD TO BAR FORCED
DISCLOSURE OF INFORMATION THAT WOULD HAVE SUBJECTED THE INDIVIDUAL
CONCERNED TO THE "REAL AND APPRECIABLE" HAZARD OF SELF-INCRIMINATION
FOR VIOLATING PERVASIVE STATE OR FEDERAL LAWS PROSCRIBING GAMBLING. 
PP. 703-713. 

WHITE, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION
IN WHICH BURGER, C.J., AND STEWART AND BLACKMUN, JJ., JOINED.  HARLAN,
J., FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 675. 
BRENNAN, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH
MARSHALL, J., JOINED, POST, P. 702.  DOUGLAS, J., FILED A DISSENTING
OPINION, IN WHICH BLACK, J., JOINED, POST.  P. 713. 

MR. JUSTICE WHITE ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE, MR. JUSTICE STEWART, AND MR. JUSTICE
BLACKMUN JOIN. 

AN INDICTMENT WAS RETURNED IN MARCH 1963 CHARGING PETITIONER FRED T.
MACKEY IN FIVE COUNTS OF EVADING PAYMENT OF INCOME TAXES BY WILLFULLY
PREPARING AND CAUSING TO BE PREPARED FALSE AND FRAUDULENT TAX RETURNS
FOR THE YEARS 1956 THROUGH 1970, IN VIOLATION OF 26 U.S.C. 7201.  ON
JANUARY 21, 1964, A JURY IN THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF INDIANA FOUND MACKEY GUILTY ON ALL FIVE COUNTS.  /1/  THE
CONVICTION WAS AFFIRMED ON APPEAL BY THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT IN THE SPRING OF 1965.  345 F.2D 499 (CA7), CERT.
DENIED, 382 U.S. 824 (1965). 

AT PETITIONER'S TRIAL, THE GOVERNMENT USED THE NETWORTH METHOD TO
PROVE EVASION OF INCOME TAXES.  /2/  AS PART OF ITS CASE, IT INTRODUCED
60 WAGERING EXCISE TAX RETURNS-- ONE FOR EVERY MONTH OF EACH OF THE
FIVE YEARS COVERED BY THE INDICTMENT-- FILED BY PETITIONER PURSUANT TO
26 U.S.C. 4401.  A SUMMARY EXHIBIT PREPARED FROM THESE RETURNS AND
PETITIONER'S INCOME TAX RETURNS WERE ALSO INTRODUCED, AND AN INTERNAL
REVENUE SERVICE TECHNICAL ADVISOR TESTIFIED THAT FOR THE YEARS IN
QUESTION THE TOTALS OF THE GROSS AMOUNT OF WAGERS REPORTED ON THE
WAGERING TAX RETURNS, LESS THE EXPENSES OF RUNNING PETITIONER'S "POLICY
WHEEL" OPERATION AS REPORTED ON HIS ANNUAL INCOME TAX RETURNS, EXCEEDED
THE NET PROFITS FROM GAMBLING REPORTED ON THE PETITIONER'S INCOME TAX
RETURNS.  DEFENSE COUNSEL OBJECTED TO THE INTRODUCTION OF THESE
EXHIBITS, ARGUING THAT THEY WERE PREJUDICIAL, INFLAMMATORY, AND
IRRELEVANT; THE GOVERNMENT RESPONDED THAT THE WAGERING TAX RETURNS AND
THE SUMMARY EXHIBIT WERE RELEVANT BECAUSE THEY SHOWED A LIKELY SOURCE
OF UNREPORTED INCOME.  THE EXHIBITS WERE ADMITTED, AND THE COURT OF
APPEALS FOUND, WITHOUT SPECIFIC DISCUSSION, NO ERROR IN THE RULING. 
/3/ 

ON JANUARY 29, 1968, THIS COURT HELD THAT THE FIFTH AMENDMENT
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION WAS A VALID DEFENSE TO
A PROSECUTION FOR FAILURE TO REGISTER AS A GAMBLER AND TO PAY THE
RELATED OCCUPATIONAL AND GAMBLING EXCISE TAXES UNDER 26 U.S.C. 4401,
4411, 4412.  MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968); GROSSO V.
UNITED STATES, 340 U.S. 62 (1968).  PETITIONER, WHO HAD BEGUN SERVING
HIS SENTENCE IN DECEMBER 1965, FILED ON FEBRUARY 12, 1968, A MOTION
PURSUANT TO 28 U.S.C. 2255 TO VACATE HIS SENTENCE AND SET ASIDE THE
JUDGMENT OF CONVICTION ON AUTHORITY OF MARCHETTI AND GROSSO.  MOTION
WAS DENIED BY THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA,
/4/  AND THE COURT OF APPEALS AFFIRMED.  411 F.2D 504 (CA7 1969). 

ALTHOUGH THE COURT OF APPEALS SUGGESTED THAT PETITIONER'S ARGUMENT
THAT HE HAD NOT WAIVED THE FIFTH AMENDMENT CLAIM BY HIS FAILURE TO
RAISE IT AT TRIAL WAS OPEN TO QUESTION, 411 F.2D, AT 506-507, IT
SPECIFICALLY HELD THAT MARCHETTI AND GROSSO WOULD NOT BE APPLIED
RETROACTIVELY TO UPSET A PRE-MARCHETTI CONVICTION FOR EVADING PAYMENT
OF INCOME TAX SIMPLY BECAUSE THE WAGERING EXCISE TAX RETURNS FILED
PURSUANT TO 26 U.S.C. 4401 WERE INTRODUCED IN EVIDENCE AT TRIAL. 
EMPLOYING THE THREE FOLD ANALYSIS SET FORTH IN OUR RETROACTIVITY
DECISIONS, SEE, E.G., STOVALL V. DENNO, 388 U.S. 293, 297 (1967), THE
COURT OF APPEALS FOUND THAT LAW ENFORCEMENT OFFICIALS HAD RELIED ON THE
OLD RULE, THAT RETROACTIVE APPLICATION OF MARCHETTI AND GROSSO IN CASES
SUCH AS PETITIONER'S WOULD HAVE A SUBSTANTIAL IMPACT ON THE
ADMINISTRATION OF JUSTICE, AND THAT "(THE UNRELIABILITY OF THE FACT
FINDING PROCESS WHICH IS THE TOUCHSTONE OF RETROACTIVITY IS SIMPLY NOT
THREATENED BY THE IMPERSONAL COMMAND OF THE WAGERING TAX LAWS."  411
F.2D, AT 509.  WE GRANTED CERTIORARI.  396 U.S. 954. 

        I 

IN UNITED STATES V. KAHRIGER, 345 U.S. 22 (1953), A PROSECUTION FOR
FAILURE TO REGISTER AND PAY THE GAMBLING TAX, THIS COURT HELD THAT THE
REGISTRATION REQUIREMENT AND THE OBLIGATION TO PAY THE GAMBLING TAX DID
NOT VIOLATE THE FIFTH AMENDMENT.  THE COURT CONSTRUED THE PRIVILEGE AS
RELATING "ONLY TO PAST ACTS, NOT TO FUTURE ACTS THAT MAY OR MAY NOT BE
COMMITTED.  . . . UNDER THE REGISTRATION PROVISIONS OF THE WAGERING
TAX, APPELLEE IS NOT COMPELLED TO CONFESS TO ACTS ALREADY COMMITTED, HE
IS MERELY INFORMED BY THE STATUTE THAT IN ORDER TO ENGAGE IN THE
BUSINESS OF WAGERING IN THE FUTURE HE MUST FULFILL CERTAIN
CONDITIONS."  345 U.S., AT 32-33.  LEWIS V. UNITED STATES, 348 U.S. 419
(1955), REAFFIRMED THIS CONSTRUCTION OF THE FIFTH AMENDMENT.  THIRTEEN
YEARS LATER WE COULD NOT AGREE WITH WHAT WAS DEEMED AN "EXCESSIVELY
NARROW"  VIEW OF THE SCOPE OF THE PRIVILEGE.  390 U.S.,AT 52.  THE
"FORCE OF THE CONSTITUTIONAL PROHIBITION IS (NOT) DIMINISHED MERELY
BECAUSE CONFESSION OF A GUILTY PURPOSE PRECEDES THE ACT WHICH IT IS
SUBSEQUENTLY EMPLOYED TO EVIDENCE."  390 U.S.,AT 54.  THE GAMBLING
REGISTRATION AND TAX REQUIREMENTS WERE HELD TO PRESENT SUBSTANTIAL
RISKS OF SELF-INCRIMINATION AND THEREFORE TO BE UNENFORCEABLE;
IMPOSITION OF CRIMINAL PENALTIES FOR NONCOMPLIANCE WAS AN IMPERMISSIBLE
BURDEN ON THE EXERCISE OF THE PRIVILEGE. 

UNTIL MARCHETTI AND GROSSO, THEN, THE REGISTRATION AND GAMBLING TAX
PROVISIONS HAD THE EXPRESS APPROVAL OF THIS COURT; THE FIFTH AMENDMENT
PROVIDED NO DEFENSE TO A CRIMINAL PROSECUTION FOR FAILURE TO COMPLY. 
BUT AS OF JANUARY 29, 1968, THE PRIVILEGE WAS EXPANDED TO EXCUSE
NONCOMPLIANCE.  THE STATUTORY REQUIREMENT TO REGISTER AND FILE GAMBLING
TAX RETURNS WAS HELD TO COMPEL SELF-INCRIMINATION AND THE PRIVILEGE
BECAME A COMPLETE DEFENSE TO A CRIMINAL PROSECUTION FOR FAILURE TO
REGISTER AND PAY THE RELATED TAXES.  IT FOLLOWED THAT THE REGISTRATION
AND EXCISE TAX RETURNS FILED IN RESPONSE TO THE STATUTORY COMMAND WERE
COMPELLED STATEMENTS WITHIN THE MEANING OF THE FIFTH AMENDMENT AND
ACCORDINGLY WERE INADMISSIBLE IN EVIDENCE AS PART OF THE PROSECUTION'S
CASE IN CHIEF.  THE QUESTION BEFORE US IS WHETHER THE MARCHETTI-GROSSO
RULE APPLIES RETROACTIVELY AND INVALIDATES MACKEY'S CONVICTION BECAUSE
HIS GAMBLING EXCISE TAX RETURNS WERE INTRODUCED AGAINST HIM AT HIS
TRIAL FOR INCOME TAX EVASION. 

WE HAVE TODAY REAFFIRMED THE NONRETROACTIVITY OF DECISIONS
OVERRULING PRIOR CONSTRUCTIONS OF THE FOURTH AMENDMENT.  WILLIAMS V.
UNITED STATES AND ELKANICH V. UNITED STATES, ANTE, P. 646.  THE
DECISION IN THOSE CASES REPRESENTS THE APPROACH TO THE QUESTION OF WHEN
TO ACCORD RETROACTIVE SWEEP TO A NEW CONSTITUTIONAL RULE TAKEN BY THIS
COURT IN THE LINES OF CASES FROM LINKLETTER /5/ IN 1965 TO DESIST /6/
IN 1969.  AMONG THOSE CASES WERE TWO WHICH DETERMINED THAT EARLIER
DECISIONS EXTENDING THE REACH OF THE FIFTH AMENDMENT PRIVILEGE AGAINST
COMPELLED SELF-INCRIMINATION WOULD NOT BE RETROACTIVELY APPLIED TO
INVALIDATE PRIOR CONVICTIONS THAT IN ALL RESPECTS CONFORMED TO THE THEN
CONTROLLING LAW. 

IN TEHAN V. SHOTT, 382 U.S. 406 (1966), THE COURT DECLINED TO APPLY
THE RULE OF GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965), TO PRISONERS
SEEKING COLLATERAL RELIEF.  GRIFFIN HAD CONSTRUED THE FIFTH AMENDMENT
TO FORBID COMMENT ON DEFENDANTS' FAILURE TO TESTIFY, THEREBY REMOVING A
BURDEN FROM THE EXERCISE OF THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION AND FURTHER IMPLEMENTING ITS PURPOSE.  THE BASIC PURPOSE
OF THE PRIVILEGE, WE SAID, WAS NOT RELATED TO "PROTECTING THE INNOCENT
FROM CONVICTION."  382 U.S.,AT 415; THE PRIVILEGE "IS NOT AN ADJUNCT TO
THE ASCERTAINMENT OF TRUTH," BUT IS AIMED AT SERVING THE COMPLEX OF
VALUES ON WHICH IT HAS HISTORICALLY RESTED.  382 U.S.,AT 416.  GIVEN
THIS PURPOSE, CLEAR RELIANCE ON THE PRE-GRIFFIN RULES, AND THE
FRUSTRATION OF STATE INTERESTS WHICH RETROACTIVITY WOULD HAVE ENTAILED,
WE REFUSED RELIEF TO A STATE PRISONER SEEKING COLLATERAL RELIEF
ALTHOUGH THE PROSECUTOR'S COMMENT ON HIS FAILURE TO TAKE THE STAND AT
HIS TRIAL WOULD HAVE INFRINGED THE NEW RULE THAT WAS ANNOUNCED IN
GRIFFIN AND WAS BEING APPLIED IN CONTEMPORARY TRIALS. 

JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966), REAFFIRMED THIS VIEW OF
THE FIFTH AMENDMENT BY DECLINING TO APPLY THE MIRANDA /7/  RULES TO
CASES PENDING ON DIRECT REVIEW AS WELL AS TO THOSE INVOLVING
APPLICATIONS FOR COLLATERAL RELIEF.  STATING THAT THE "PRIME PURPOSE OF
THESE RULINGS IS TO GUARANTEE FULL EFFECTUATION OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION, THE MAINSTAY OF OUR ADVERSARY SYSTEM OF
CRIMINAL JUSTICE," 382 U.S.,AT 729, THE COURT ALSO RECOGNIZED THAT THE
NEW RULES TO SOME EXTENT DID GUARD AGAINST THE POSSIBILITY OF
UNRELIABLE ADMISSIONS GIVEN DURING CUSTODIAL INTERROGATION.  ID., AT
730.  THE QUESTION, HOWEVER, WAS ONE OF "PROBABILITIES."  THE HAZARD OF
UNTRUSTWORTHY RESULTS IN PAST TRIALS WAS NOT SUFFICIENTLY APPARENT TO
REQUIRE RETROACTIVE APPLICATION IN VIEW OF THE EXISTING, WELL-DEFINED
REMEDIES AGAINST THE USE OF MANY INVOLUNTARY CONFESSIONS, THE OBVIOUS
FACT THAT THE NEW WARNINGS HAD NOT BEEN STANDARD PRACTICE PRIOR TO
MIRANDA, AND THE CONSEQUENT DISRUPTION TO THE ADMINISTRATION OF THE
CRIMINAL LAW. 

 II 

GUIDED BY OUR DECISIONS DEALING WITH THE RETROACITIVITY OF NEW
CONSTITUTIONAL INTERPRETATIONS OF THE BROAD LANGUAGE OF THE BILL OF
RIGHTS, WE AGREE WITH THE COURT OF APPEALS THAT MARCHETTI AND GROSSO
SHOULD NOT HAVE ANY RETROACTIVE EFFECT ON MACKEY'S CONVICTION. 
PETITIONER WAS CONVICTED IN STRICT ACCORDANCE WITH THEN-APPLICABLE
CONSTITUTIONAL NORMS.  MACKEY WOULD HAVE A SIGNIFICANT CLAIM ONLY IF
MARCHETTI AND GROSSO MUST BE GIVEN FULL RETROACTIVE SWEEP.  BUT IN
OVERRULING KAHRIGER AND LEWIS, THE COURT'S PURPOSE WAS TO PROVIDE FOR A
BROADER IMPLEMENTATION OF THE FIFTH AMENDMENT PRIVILEGE-- A PRIVILEGE
THAT DOES NOT INCLUDE AT ITS CORE A CONCERN FOR IMPROVING THE
RELIABILITY OF THE RESULTS REACHED AT CRIMINAL TRIALS.  THERE IS NO
INDICATION IN MARCHETTI OR GROSSO THAT ONE OF THE CONSIDERATIONS WHICH
MOVED THE COURT TO HOLD THAT THE CONGRESS COULD NOT CONSTITUTIONALLY
COMPEL CITIZENS TO REGISTER AS GAMBLERS AND FILE RELATED TAX RETURNS
WAS THE PROBABLE UNRELIABILITY OF SUCH STATEMENTS ONCE GIVEN. 
PETITIONER HAS NOT ADVANCED ANY OBJECTIVE CONSIDERATIONS SUGGESTING
SUCH UNRELIABILITY.  THE WAGERING TAX RETURNS INTRODUCED IN EVIDENCE AT
HIS TRIAL HAVE NONE OF THE CHARACTERISTICS, AND HENCE NONE OF THE
POTENTIAL UNRELIABILITY, OF COERCED CONFESSIONS PRODUCED BY "OVERT AND
OBVIOUS COERCION."  JOHNSON, 384 U.S.,AT 730.  NOR DOES MACKEY SUGGEST
THAT HIS RETURNS-- MADE UNDER OATH-- WERE INACCURATE IN ANY RESPECT. 
/8/  THUS, A GAMBLING EXCISE TAX RETURN, LIKE PHYSICAL EVIDENCE SEIZED
IN VIOLATION OF A NEW INTERPRETATION OF THE FOURTH AMENDMENT, IS
CONCEDEDLY RELEVANT AND PROBATIVE EVEN THOUGH OBTAINED BY THE
GOVERNMENT THROUGH MEANS SINCE DEFINED BY THIS COURT AS
CONSTITUTIONALLY OBJECTIONABLE.  AS IN DESIST, ELKANICH, AND WILLIAMS,
THE RESULT HERE SHOULD BE THAT A PRE-MARCHETTI TRIAL IN WHICH THE
GOVERNMENT EMPLOYED SUCH EVIDENCE IS NOT SET ASIDE THROUGH RETROACTIVE
APPLICATION OF THE NEW CONSTITUTIONAL PRINCIPLE. 

THE SHORT OF THE MATTER IS THAT MARCHETTI AND GROSSO RAISE NOT THE
SLIGHTEST DOUBT ABOUT THE ACCURACY OF THE VERDICT OF GUILT RETURNED
HERE.  UNDER THESE CIRCUMSTANCES, THE PRINCIPLES REPRESENTED BY
ELKANICH AND WILLIAMS, AS WELL AS BY TEHAN AND JOHNSON, MUST CONTROL. 
FOR TEHAN AND JOHNSON INDICATE THAT EVEN THOUGH DECISIONS
REINTERPRETING THE FIFTH AMENDMENT MAY CREATE MARGINAL DOUBTS AS TO THE
ACCURACY OF THE RESULTS OF PAST TRIALS, THE PURPOSES OF THOSE DECISIONS
ARE ADEQUATELY SERVED BY PROSPECTIVE APPLICATION.  ACCORDINGLY, THE
JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  PETITIONER RECEIVED A SENTENCE OF FIVE YEARS' IMPRISONMENT AND
A FINE OF $10,000 ON EACH COUNT, THE PRISON TERMS TO BE SERVED
CONCURRENTLY. 

/2/  THIS METHOD OF PROSECUTION IS DISCUSSED AND APPROVED IN HOLLAND
V. UNITED STATES, 348 U.S. 121 (1954); FRIEDBERG V. UNITED STATES, 348
U.S. 142 (1954); SMITH V. UNITED STATES, 348 U.S. 147 (1954); UNITED
STATES V. CALDERON, 348 U.S. 160 (1954). 

/3/  IN REJECTING PETITIONER'S APPLICATION FOR RELIEF UNDER 28
U.S.C. 2255, THE DISTRICT JUDGE SO READ THE COURT OF APPEALS' EARLIER
OPINION.  SEE APP. 28. 

/4/  THE DISTRICT COURT ADVANCED SEVERAL REASONS FOR DENYING
PETITIONER'S APPLICATION.  SEE APP. 27-38.  NOTING THAT WITH GAMBLING
EXCISE TAX RETURNS "THERE IS LITTLE DANGER OF THEIR UNRELIABILITY OTHER
THAN THEIR POSSIBLE UNDERSTATEMENT OF LIABILITY."  ID., AT 32, THE
DISTRICT JUDGE HELD THAT MARCHETTI AND GROSSO SHOULD NOT BE APPLIED TO
PETITIONER'S CASE: 

"AN EXAMINATION OF THESE AND OTHER CASES REVEALS NO INSTANCE WHERE
THE (SUPREME) COURT HAS GIVEN RETROACTIVE APPLICATION TO AN
EXCLUSIONARY RULE OR OTHER CONSTITUTIONAL GUARANTEE WHERE THE
RELIABILITY OF THE FACT FINDING PROCESS HAD NOT BEEN JEOPARDIZED.  THE
BRIEFS FOR (MACKEY) HAVE SUGGESTED NONE.  IN (PETITIONER) MACKEY'S
TRIAL, THE INTRODUCTION OF THE WAGERING TAX FORMS DID NOT JEOPARDIZE
THE INTEGRITY OF THE TRIAL EXCEPT TO THE EXTENT THAT THEY SHOWED THAT
HE WAS ENGAGED IN ILLEGAL ACTIVITIES OTHER THAN THAT CHARGED.  THIS
POSSIBILITY WAS RAISED BY MACKEY'S ATTORNEYS AT THE TRIAL, AND
APPARENTLY ON APPEAL, AND BOTH TIMES THE COURTS HELD THAT THERE WAS NO
ERROR."  ID., AT 36.     WE NOTE IN REFERENCE TO THE LAST POINT
MENTIONED BY THE DISTRICT JUDGE THAT AT TRIAL THE COURT'S CHARGE TO THE
JURY INCLUDED SEVERAL STRONG ADMONITIONS TO THE EFFECT THAT THE
QUESTION OF WHETHER ANY BUSINESS RUN BY PETITIONER WAS LEGAL OR ILLEGAL
WAS IRRELEVANT TO THE OFFENSE CHARGED IN THE INDICTMENT-- FAILURE TO
REPORT INCOME FOR FIVE YEARS.  SEE BRIEF FOR THE UNITED STATES 11. 

/5/  LINKLETTER V. WALKER, 381 U.S. 618 (1965). 

/6/  DESIST V. UNITED STATES, 394 U.S. 244 (1969). 

/7/  MIRANDA V. ARIZONA, 384 U.S. 436 (1966).     /8/  SEE N. 4,
SUPRA. 

MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENTS IN NOS. 36 AND 82
AND DISSENTING IN NO. 81. 

THESE THREE CASES HAVE ONE QUESTION IN COMMON:  THE EXTENT TO WHICH
NEW CONSTITUTIONAL RULES PRESCRIBED BY THIS COURT FOR THE CONDUCT OF
CRIMINAL CASES ARE APPLICABLE TO OTHER SUCH CASES WHICH WERE LITIGATED
UNDER DIFFERENT BUT THEN-PREVAILING CONSTITUTIONAL RULES. 

ONE OF THESE CASES IS BEFORE US ON DIRECT REVIEW, NO. 81, WILLIAMS,
THE OTHER TWO BEING HERE ON COLLATERAL REVIEW, NO. 82, ELKANICH, AND
NO. 36, MACKEY.  IN EACH INSTANCE THE NEW RULE IS HELD NOT APPLICABLE,
AND, IN CONSEQUENCE, THE JUDGMENTS BELOW ARE AFFIRMED, WITHOUT REACHING
THE MERITS OF THE UNDERLYING QUESTIONS PRESENTED.  TWO OF THE CASES,
WILLIAMS AND ELKANICH, INVOLVE THE COURT'S DECISION IN CHIMEL V.
CALIFORNIA, 395 U.S. 752 (1969), CHANGING THE RULE AS TO THE SCOPE OF
PERMISSIBLE SEARCHES AND SEIZURES INCIDENT TO A LAWFUL ARREST.  THE
OTHER CASE, MACKEY, INVOLVES THE COURT'S DECISIONS IN MARCHETTI V.
UNITED STATES, 390 U.S. 39 (1968), AND GROSSO V. UNITED STATES, 390
U.S. 62 (1968), CHANGING THE RULE AS TO THE APPLICATION OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION WITH RESPECT TO CRIMINAL
PROSECUTIONS ARISING UNDER THE FEDERAL GAMBLING TAX STATUTES. 

TODAY'S DECISIONS MARK ANOTHER MILESTONE IN THE DEVELOPMENT OF THE
COURT'S "RETROACTIVITY" DOCTRINE, WHICH CAME INTO BEING SOMEWHAT LESS
THAN SIX YEARS AGO IN LINKLETTER V. WALKER, 381 U.S. 618 (1965).  THAT
DOCTRINE WAS THE PRODUCT OF THE COURT'S DISQUIETUDE WITH THE IMPACTS OF
ITS FAST-MOVING PACE OF CONSTITUTIONAL INNOVATION IN THE CRIMINAL
FIELD.  SOME MEMBERS OF THE COURT, AND I HAVE COME TO REGRET THAT I WAS
AMONG THEM, INITIALLY GRASPED THIS DOCTRINE AS A WAY OF LIMITING THE
REACH OF DECISIONS THAT SEEMED TO THEM FUNDAMENTALLY UNSOUND.  OTHERS
RATIONALIZED THIS RESORT TO PROSPECTIVITY AS A "TECHNIQUE" THAT
PROVIDED AN "IMPETUS . . . FOR THE IMPLEMENTATION OF LONG OVERDUE
REFORMS, WHICH OTHERWISE COULD NOT BE PRACTICABLY EFFECTED."  JENKINS
V. DELAWARE, 395 U.S. 213, 218 (1969).  THE UPSHOT OF THIS CONFLUENCE
OF VIEWPOINTS WAS THAT THE SUBSEQUENT COURSE OF LINKLETTER BECAME
ALMOST AS DIFFICULT TO FOLLOW AS THE TRACKS MADE BY A BEAST OF PREY IN
SEARCH OF ITS INTENDED VICTIM.  SEE MY DISSENTING OPINION IN DESIST V.
UNITED STATES, 394 U.S. 244, 256-257 (1969).  SEE ALSO UNITED STATES V.
UNITED STATES COIN & CURRENCY, POST, P. 728 (APPENDIX TO CONCURRING
OPINION OF BRENNAN, J.).  IT WAS THIS TRAIN OF EVENTS THAT IMPELLED ME
TO SUGGEST TWO TERMS AGO IN DESIST THAT THE TIME HAD COME FOR US TO
PAUSE TO CONSIDER JUST WHERE THESE HAPHAZARD DEVELOPMENTS MIGHTS BE
LEADING US.  THAT IS WHAT I HAD THOUGHT UNDERLAY THE TAKING OF THESE
CASES, AND THEIR COMPANIONS, UNITED STATES V. UNITED STATES COIN &
CURRENCY, POST, P. 715, AND HILL V. CALIFORNIA, POST, P. 797. 
REGRETTABLY, HOWEVER, THIS OPPORTUNITY HAS LARGELY EVENTUATED IN LITTLE
MORE THAN A REAFFIRMATION OF THE POST-LINKLETTER DEVELOPMENTS. 

WHAT EMERGES FROM TODAY'S DECISIONS IS THAT IN THE REALM OF
CONSTITUTIONAL ADJUDICATION IN THE CRIMINAL FIELD THE COURT IS FREE TO
ACT, IN EFFECT, LIKE A LEGISLATURE, MAKING ITS NEW CONSTITUTIONAL RULES
WHOLLY OR PARTIALLY RETROACTIVE OR ONLY PROSPECTIVE AS IT DEEMS WISE. 
I COMPLETELY DISAGREE WITH THIS POINT OF VIEW.  WHILE I DO NOT
SUBSCRIBE TO THE BLACKSTONIAN THEORY THAT THE LAW SHOULD BE TAKEN TO
HAVE ALWAYS BEEN WHAT IT IS SAID TO MEAN AT A LATER TIME, I DO BELIEVE
THAT WHETHER A NEW CONSTITUTIONAL RULE IS TO BE GIVEN RETROACTIVE OR
SIMPLY PROSPECTIVE EFFECT MUST BE DETERMINED UPON PRINCIPLES THAT
COMPORT WITH THE JUDICIAL FUNCTION, AND NOT UPON CONSIDERATIONS THAT
ARE APPROPRIATE ENOUGH FOR A LEGISLATIVE BODY. 

I 

AT THE OUTSET, I THINK IT IS CLEAR THAT CHOOSING A BINDING,
GENERALLY APPLICABLE INTERPRETATION OF THE CONSTITUTION PRESENTS A
PROBLEM WHOLLY DIFFERENT FROM THAT OF CHOOSING WHETHER TO APPLY THE
RULE SO EVOLVED "RETROACTIVELY" TO OTHER CASES ARISING ON DIRECT
REVIEW. 

IN ADOPTING A PARTICULAR CONSTITUTIONAL PRINCIPLE, THIS COURT VERY
PROPERLY WEIGHTS THE NATURE AND PURPOSES OF VARIOUS COMPETING
ALTERNATIVES, INCLUDING THE EXTENT TO WHICH A PROPOSED RULE WILL
ENHANCE THE INTEGRITY OF THE CRIMINAL PROCESS AND PROMOTE THE EFFICIENT
ADMINISTRATION OF JUSTICE, AS WELL AS THE EXTENT TO WHICH JUSTIFIABLE
EXPECTATIONS HAVE GROWN UP SURROUNDING ONE RULE OR ANOTHER.  INDEED, IT
IS THIS VERY PROCESS OF WEIGHING SUCH FACTORS THAT SHOULD CONSTITUTE
THE CORE OF OUR TASK IN GIVING CONCRETE EMBODIMENT TO THOSE
CONSTITUTIONAL COMMANDS THAT GOVERN THE PROCEDURES BY WHICH THE STATE
AND FEDERAL GOVERNMENTS ENFORCE THEIR CRIMINAL LAWS. 

BUT WE POSSESS THIS AWESOME POWER OF JUDICIAL REVIEW, THIS DUTY TO
BIND COORDINATE BRANCHES OF THE FEDERAL SYSTEM WITH OUR VIEW OF WHAT
THE CONSTITUTION DICTATES, ONLY BECAUSE WE ARE A COURT OF LAW, AN
APPELLATE COURT CHARGED WITH THE RESPONSIBILITY OF ADJUDICATING CASES
OR CONTROVERSIES ACCORDING TO THE LAW OF THE LAND AND BECAUSE THE LAW
APPLICABLE TO ANY SUCH DISPUTE NECESSARILY INCLUDES THE FEDERAL
CONSTITUTION.  THAT IS THE CLASSIC EXPLANATION FOR THE BASIS OF
JUDICIAL REVIEW, AN EXPLANATION FIRST PUT FORTH BY CHIEF JUSTICE
MARSHALL IN MARBURY V. MADISON, 1 CRANCH 137, 177-178 (1803), AND FROM
THAT DAY TO THIS THE SOLE CONTINUING RATIONALE FOR THE EXERCISE OF THIS
JUDICIAL POWER: 

     "CERTAINLY ALL THOSE WHO HAVE FRAMED WRITTEN CONSTITUTIONS

  CONTEMPLATE THEM AS FORMING THE FUNDAMENTAL AND PARAMOUNT LAW OF

  THE NATION . . .

        .      .          .          . 

     "IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL

  DEPARTMENT TO SAY WHAT THE LAW IS.  THOSE WHO APPLY THE RULE TO

  PARTICULAR CASES, MUST OF NECESSITY EXPOUND AND INTERPRET THAT

  RULE.  IF TWO LAWS CONFLICT WITH EACH OTHER, THE COURTS MUST

  DECIDE ON THE OPERATION OF EACH. 

        .          .      .          . 

     "IF THEN THE COURTS ARE TO REGARD THE CONSTITUTION; AND THE

  CONSTITUTION IS SUPERIOR TO ANY ORDINARY ACT OF THE LEGISLATURE;

  THE CONSTITUTION, AND NOT SUCH ORDINARY ACT, MUST GOVERN THE CASE

  TO WHICH THEY BOTH APPLY." 

WE ANNOUNCE NEW CONSTITUTIONAL RULES, THEN, ONLY AS A CORRELATIVE OF
OUR DUAL DUTY TO DECIDE THOSE CASES OVER WHICH WE HAVE JURISDICTION AND
TO APPLY THE FEDERAL CONSTITUTION AS ONE SOURCE OF THE MATRIX OF
GOVERNING LEGAL RULES.  WE CANNOT RELEASE CRIMINALS FROM JAIL MERELY
BECAUSE WE THINK ONE CASE IS A PARTICULARLY APPROPRIATE ONE IN WHICH TO
APPLY WHAT READS LIKE A GENERAL RULE OF LAW OR IN ORDER TO AVOID MAKING
NEW LEGAL NORMS THROUGH PROMULGATION OF DICTA.  THIS SERIOUS
INTERFERENCE WITH THE CORRECTIVE PROCESS IS JUSTIFIED ONLY BY
NECESSITY, AS PART OF OUR TASK OF APPLYING THE CONSTITUTION TO CASES
BEFORE US.  SIMPLY FISHING ONE CASE FROM THE STREAM OF APPELLATE
REVIEW, USING IT AS A VEHICLE FOR PRONOUNCING NEW CONSTITUTIONAL
STANDARDS, AND THEN PERMITTING A STREAM OF SIMILAR CASES SUBSEQUENTLY
TO FLOW BY UNAFFECTED BY THAT NEW RULE CONSTITUTE AN INDEFENSIBLE
DEPARTURE FROM THIS MODEL OF JUDICIAL REVIEW. 

IF WE DO NOT RESOLVE ALL CASES BEFORE US ON DIRECT REVIEW IN LIGHT
OF OUR BEST UNDERSTANDING OF GOVERNING CONSTITUTIONAL PRINCIPLES, IT IS
DIFFICULT TO SEE WHY WE SHOULD SO ADJUDICATE ANY CASE AT ALL.  IF THERE
IS NO NEED FOR AN ANTI-MAJORITARIAN JUDICIAL CONTROL OVER THE CONTENT
OF OUR LEGAL SYSTEM IN NINE CASES PRECISELY LIKE THAT PRESENTED BY MR.
CHIMEL'S DISPUTE WITH THE STATE OF CALIFORNIA, IT IS HARD TO SEE THE
NECESSITY, WISDOM, OR JUSTIFICATION FOR IMPOSING THAT CONTROL IN THE
CHIMEL CASE ITSELF.  IN TRUTH, THE COURT'S ASSERTION OF POWER TO
DISREGARD CURRENT LAW IN ADJUDICATING CASES BEFORE US THAT HAVE NOT
ALREADY RUN THE FULL COURSE OF APPELLATE REVIEW, IS QUITE SIMPLY AN
ASSERTION THAT OUR CONSTITUTIONAL FUNCTION IS NOT ONE OF ADJUDICATION
BUT IN EFFECT OF LEGISLATION.  WE APPLY AND DEFINITIVELY INTERPRET THE
CONSTITUTION, UNDER THIS VIEW OF OUR ROLE, NOT BECAUSE WE ARE BOUND TO,
BUT ONLY BECAUSE WE OCCASIONALLY DEEM IT APPROPRIATE, USEFUL, OR WISE. 
THAT SORT OF CHOICE MAY PERMISSIBLY BE MADE BY A LEGISLATURE OR A
COUNCIL OF REVISION, BUT NOT BY A COURT OF LAW. 

THE NOTION THAT CASES BEFORE US ON DIRECT REVIEW NEED NOT BE
ADJUDICATED IN ACCORDANCE WITH THOSE LEGAL PRINCIPLES GOVERNING AT THE
TIME WE ARE POSSESSED OF JURISDICTION IN THE CASE ENTAILS ADDITIONAL
SIGNIFICANT UNTOWARD CONSEQUENCES.  BY THIS DOCTRINE ALL OTHER COURTS
IN THIS COUNTRY ARE, IN EFFECT, REDUCED LARGELY TO THE ROLE OF
AUTOMATONS, DIRECTED BY US TO APPLY MECHANISTICALLY ALL THEN-SETTLED
FEDERAL CONSTITUTIONAL CONCEPTS TO EVERY CASE BEFORE THEM.  NO LONGER
DO THE INFERIOR COURTS-- AND, IN THE CONSTITUTIONAL REALM, ALL COURTS
ARE INFERIOR TO US-- BEAR RESPONSIBILITY FOR DEVELOPING OR INTERPRETING
THE CONSTITUTION.  FOR IT IS A NECESSARY COROLLARY OF THIS CURRENT
RETROACTIVITY DOCTRINE THAT AN INFERIOR COURT ERRS WHEN IT ARRIVES AT A
RESULT WHICH THIS COURT SUBSEQUENTLY ADOPTS BUT LATER DECIDES MUST
OPERATE PROSPECTIVELY ONLY.  SEE MY DISSENT IN DESIST, 394 U.S.,AT
259.  CF. UNITED STATES V. WHITE, POST, P. 754 (PART II), AND MY
DISSENTING OPINION IN THAT CASE, POST, P. 768.  SEE ALSO UNITED STATES
V. UNITED STATES COIN & CURRENCY, POST, P. 730 (WHITE, J.,
DISSENTING).  ALTHOUGH IT IS NECESSARY FOR THE PROPER FUNCTIONING OF
THE FEDERAL SYSTEM THAT THIS COURT POSSESS THE LAST WORD ON ISSUES OF
FEDERAL CONSTITUTIONAL LAW, IT IS INTOLERABLE THAT WE TAKE TO OURSELVES
THE SOLE ABILITY TO SPEAK TO SUCH PROBLEMS. 

REFUSAL TO APPLY NEW CONSTITUTIONAL RULES TO ALL CASES ARISING ON
DIRECT REVIEW MAY WELL SUBSTANTIALLY DETER THOSE WHOSE FINANCIAL
RESOURCES ARE BARELY SUFFICIENT TO WITHSTAND THE COSTS OF LITIGATING TO
THIS COURT, OR ATTORNEYS WHO ARE WILLING TO MAKE SACRIFICES TO PERFORM
THEIR PROFESSIONAL OBLIGATION IN ITS BROADEST SENSE, FROM ASSERTING
RIGHTS BOTTOMED ON CONSTITUTIONAL INTERPRETATIONS DIFFERENT FROM THOSE
CURRENTLY PREVAILING IN THIS COURT.  MORE IMPORTANTLY, IT TENDS TO CUT
THIS COURT LOOSE FROM THE FORCE OF PRECEDENT, ALLOWING US TO
RESTRUCTURE ARTIFICIALLY THOSE EXPECTATIONS LEGITIMATELY CREATED BY
EXTANT LAW AND THEREBY MITIGATE THE PRACTICAL FORCE OF STARE DECISIS,
LINKLETTER V. WALKER, 381 U.S.,AT 644 (BLACK, J., DISSENTING), A FORCE
WHICH OUGHT PROPERLY TO BEAR ON THE JUDICIAL RESOLUTION OF ANY LEGAL
PROBLEM.  CF. MORAGNE V. STATES MARINE LINES, 398 U.S. 375, 403
(1970). 

ONE COULD CATALOGUE VIRTUALLY AD INFINITUM WHAT I VIEW AS
UNACCEPTABLE ANCILLARY CONSEQUENCES OF THIS ASPECT OF THE COURT'S
AMBULATORY RETROACTIVITY DOCTRINE.  FOR ME, THE FACT THAT THIS DOCTRINE
ENTAILS AN INEXPLICABLE AND UNJUSTIFIABLE DEPARTURE FROM THE BASIC
PRINCIPLE UPON WHICH RESTS THE INSTITUTION OF JUDICIAL REVIEW IS
SUFFICIENT TO RENDER IT UNTENABLE.  I CONTINUE TO BELIEVE THAT A PROPER
PERCEPTION OF OUR DUTIRES AS A COURT OF LAW, CHARGED WITH APPLYING THE
CONSTITUTION TO RESOLVE EVERY LEGAL DISPUTE WITHIN OUR JURISDICTION ON
DIRECT REVIEW, MANDATES THAT WE APPLY THE LAW AS IT IS AT THE TIME, NOT
AS IT ONCE WAS.  INQUIRY INTO THE NATURE, PURPOSES, AND SCOPE OF A
PARTICULAR CONSTITUTIONAL RULE IS ESSENTIAL TO THE TASK OF DECIDING
WHETHER THAT RULE SHOULD BE MADE THE LAW OF THE LAND.  THAT INQUIRY IS,
HOWEVER, QUITE SIMPLY IRRELEVANT IN DECIDING, ONCE A RULE HAS BEEN
ADOPTED AS PART OF OUR LEGAL FABRIC, WHICH CASES THEN PENDING IN THIS
COURT SHOULD BE GOVERNED BY IT.

        II 

OF THE CASES PRESENTLY UNDER DISCUSSION, ONLY WILLIAMS INVOLVES
DIRECT REVIEW OF A NONFINAL CRIMINAL JUDGMENT.  THE OTHER TWO, ELKANICH
AND MACKEY, WERE BROUGHT HERE BY PERSONS IN FEDERAL CUSTODY, SEEKING
RELEASE THROUGH ISSUANCE OF A WRIT OF HABEAS CORPUS.  /1/  AT THE TIME
THEIR CONVICTIONS BECAME FINAL, THERE WAS NO CONSTITUTIONAL ERROR IN
THE CONVICTION OF EITHER.  SINCE THAT TIME SUBSEQUENT DECISIONS OF THIS
COURT HAVE FORMULATED NEW CONSTITUTIONAL RULES THAT INVALIDATE THE
PROCEDURES LIKE THOSE INVOLVED IN THEIR TRIALS. 

WHILE, AS I HAVE JUST STATED, I THINK IT CLEAR WHAT LAW SHOULD BE
APPLIED TO NONFINAL CONVICTIONS HERE ON DIRECT REVIEW, THE CHOICE OF
LAW PROBLEM AS IT APPLIES TO CASES HERE ON HABEAS SEEMS TO ME A MUCH
MORE DIFFICULT ONE.  HOWEVER, THAT CHOICE, IN MY VIEW, IS ALSO ONE THAT
CAN BE RESPONSIBLY MADE ONLY BY FOCUSING, IN THE FIRST INSTANCE, ON THE
NATURE, FUNCTION, AND SCOPE OF THE ADJUDICATORY PROCESS IN WHICH SUCH
CASES ARISE.  THE RELEVANT FRAME OF REFERENCE, IN OTHER WORDS, IS NOT
THE PURPOSE OF THE NEW RULE WHOSE BENEFIT THE PETITIONER SEEKS, BUT
INSTEAD THE PURPOSES FOR WHICH THE WRIT OF HABEAS CORPUS IS MADE
AVAILABLE. 

AS I FIRST POINTED OUT IN MY DISSENT IN DESIST, 394 U.S.,AT 260-261,
THIS COURT'S FUNCTION IN REVIEWING A DECISION ALLOWING OR DISALLOWING A
WRIT OF HABEAS CORPUS IS, AND ALWAYS HAS BEEN, SIGNIFICANTLY DIFFERENT
FROM OUR ROLE IN REVIEWING ON DIRECT APPEAL THE VALIDITY OF NONFINAL
CRIMINAL CONVICTIONS.  WHILE THE ENTIRE THEORETICAL UNDERPINNINGS OF
JUDICIAL REVIEW AND CONSTITUTIONAL SUPREMACY DICTATE THAT FEDERAL
COURTS HAVING JURISDICTION ON DIRECT REVIEW ADJUDICATE EVERY ISSUE OF
LAW, INCLUDING FEDERAL CONSTITUTIONAL ISSUES, FAIRLY IMPLICATED BY THE
TRIAL PROCESS BELOW AND PROPERLY PRESENTED ON APPEAL, FEDERAL COURTS
HAVE NEVER HAD A SIMILAR OBLIGATION ON HABEAS CORPUS.     HABEAS CORPUS
ALWAYS HAS BEEN A COLLATERAL REMEDY, PROVIDING AN AVENUE FOR UPSETTING
JUDGMENTS THAT HAVE BECOME OTHERWISE FINAL.  IT IS NOT DESIGNED AS A
SUBSTITUTE FOR DIRECT REVIEW.  THE INTEREST IN LEAVING CONCLUDED
LITIGATION IN A STATE OF REPOSE, THAT IS, REDUCING THE CONTROVERSY TO A
FINAL JUDGMENT NOT SUBJECT TO FURTHER JUDICIAL REVISION, MAY QUITE
LEGITIMATELY BE FOUND BY THOSE RESPONSIBLE FOR DEFINING THE SCOPE OF
THE WRIT TO OUTWEIGH IN SOME, MANY, OR MOST INSTANCES THE COMPETING
INTEREST IN READJUDICATING CONVICTIONS ACCORDING TO ALL LEGAL STANDARDS
IN EFFECT WHEN A HABEAS PETITION IS FILED.  INDEED, THIS INTEREST IN
FINALITY MIGHT WELL LEAD TO A DECISION TO EXCLUDE COMPLETELY CERTAIN
LEGAL ISSUES, WHETHER OR NOT PROPERLY DETERMINED UNDER THE LAW
PREVAILING AT THE TIME OF TRIAL, FROM THE COGNIZANCE OF COURTS
ADMINISTERING THIS COLLATERAL REMEDY.  THIS HAS ALWAYS BEEN THE CASE
WITH COLLATERAL ATTACKS ON FINAL CIVIL JUDGMENTS.  /2/  MORE
IMMEDIATELY RELEVANT HERE IS THE FACT THAT PRIOR TO BROWN V. ALLEN, 344
U.S. 443 (1953), FEDERAL COURTS WOULD NEVER CONSIDER THE MERITS OF A
CONSTITUTIONAL CLAIM RAISED ON HABEAS IF THE PETITIONER HAD A FAIR
OPPORTUNITY TO RAISE HIS ARGUMENTS IN THE ORIGINAL CRIMINAL PROCEEDING,
SEE MY DISSENT IN FAY V. NOIA, 374 U.S. 391, 449-463 (1963), UNLESS THE
PETITIONER ATTACKED THE CONSTITUTIONALITY OF THE FEDERAL, EX PARTE
SIEBOLD, 100 U.S. 371 (1880), OR STATE, CROWLEY V. CHRISTENSEN, 137
U.S. 86 (1890), STATUTE UNDER WHICH HE HAD BEEN CONVICTED.  SEE
GENERALLY BATOR, FINALITY IN CRIMINAL LAW AND FEDERAL HABEAS CORPUS FOR
STATE PRISONERS, 76 HARV.L.REV.  441, 463 (1963); NOTE, DEVELOPMENTS IN
THE LAW-- FEDERAL HABEAS CORPUS, 83 HARV.L.REV.  1040, 1042-1062
(1970). 

THUS, PRIOR TO BROWN V. ALLEN, IT MUST HAVE BEEN CRYSTAL CLEAR THAT
THE "RETROACTIVITY" OF A NEW CONSTITUTIONAL RULE WAS A FUNCTION OF THE
SCOPE AND PURPOSES OF THE HABEAS CORPUS WRIT.  ABSENT UNUSUAL
CIRCUMSTANCES, A NEW RULE WAS NOT COGNIZABLE ON HABEAS SIMPLY BECAUSE
OF THE LIMITED SCOPE OF THE WRIT.  WHILE THE EXTENT OF INQUIRY INTO
ALLEGED CONSTITUTIONAL ERROR ON HABEAS HAS BEEN DRASTICALLY EXPANDED IN
THE PAST 20 YEARS, THE RETROACTIVITY PROBLEM REMAINS ANALYTICALLY
CONSTANT.  IN MY VIEW, THE ISSUES RESPECTIVELY PRESENTED BY THE TWO
CASES I TREAT HERE THAT ARISE ON COLLATERAL REVIEW (ELKANICH AND
MACKEY)-- WHETHER THE NEW RULES OF THE CHIMEL CASE AND THE MARCHETTI
AND GROSSO CASES SHOULD BE APPLIED "RETROACTIVELY"-- MUST BE CONSIDERED
AS NONE OTHER THAN A PROBLEM AS TO THE SCOPE OF THE HABEAS WRIT.  WE
CAN PROPERLY DECLINE TO APPLY THE CHIMEL RULE, OR THE PRINCIPLES OF
MARCHETTI AND GROSSO, TO THE PRESENT CASES ONLY IF THAT IS CONSISTENT
WITH THE REASONS FOR THE PROVISION, IN OUR FEDERAL LEGAL SYSTEM, OF A
HABEAS CORPUS PROCEEDING TO TEST THE VALIDITY OF AN INDIVIDUAL'S
OFFICIAL CONFINEMENT. 

THUS I AM LED TO MAKE SOME INQUIRY INTO THE PURPOSES OF HABEAS.  AT
THE OUTSET I MUST NOTE THAT THIS FACES ME WITH DIFFICULT PROBLEMS.  I
HAVE CONSISTENTLY PROTESTED A LONG COURSE OF HABEAS DECISIONS IN THIS
COURT WHICH, I STILL BELIEVE, CONSTITUTE AN UNSOUND EXTENSION OF THE
HISTORIC SCOPE OF THE WRIT AND AN UNFORTUNATE DISPLAY OF INSENSITIVITY
TO THE PRINCIPLES OF FEDERALISM WHICH UNDERLIE THE AMERICAN LEGAL
SYSTEM.  SEE, E.G., FAY V. NOIA, 372 U.S. 391, 448 (1963); SANDERS V.
UNITED STATES, 373 U.S. 1, 23 (1963); KAUFMAN V. UNITED STATES, 394
U.S. 217, 242 (1969); TOWNSEND V. SAIN, 372 U.S. 293, 325 (1963
(STEWART, J., DISSENTING).  IF I FELT FREE TO DECIDE THE PRESENT CASES
CONSISTENTLY WITH MY OWN VIEWS OF THE LEGITIMATE ROLE OF THE GREAT
WRIT, I SHOULD HAVE LITTLE DIFFICULTY.  BUT AS MY VIEWS ON THIS SCORE
HAVE NOT COMMENDED THEMSELVES TO MOST OF MY BRETHREN, I FEEL OBLIGED TO
APPROACH THESE TWO COLLATERAL CASES WITHIN THE FRAMEWORK OF CURRENT
HABEAS CORPUS DOCTRINE.  THIS IS NOT AN EASY EXERCISE, FOR PRESENT
HABEAS CORPUS DECISIONS PROVIDE LITTLE ASSISTANCE IN FATHOMING THE
UNDERLYING UNDERSTANDING OF HABEAS CORPUS UPON WHICH THESE DECISIONS
HAVE BEEN PREMISED.  THE SHORT OF THE MATTER IS THAT THIS COURT HAS IN
RECENT TIMES YET TO PRODUCE ANY CONSIDERED, COHERENT STATEMENT OF THE
GENERAL PURPOSES OF HABEAS.  IN CONSIDERING THE PROBLEM OF
"RETROACTIVITY" ON DIRECT REVIEW, IT IS POSSIBLE TO WORK FROM A GENERAL
CLASSIC THEORY OF JUDICIAL REVIEW, BUT WHILE THE SPECIFIC USES OF THE
HABEAS WRIT HAVE GREATLY MULTIPLIED, THE EARLIER PERCEPTION OF ITS
GENERAL METES AND BOUNDS HAS BEEN SWALLOWED UP AND GONE UNREPLACED. 
ABOUT THE ONLY WAY TO PROCEED IS TO WORK FROM THE BOTTOM UP,
ASCERTAINING FIRST WHICH ISSUES ARE COGNIZABLE ON HABEAS, AND WHICH ARE
NOT, AND THEREAFTER INFERRING WHAT MUST BE THOUGHT TO BE THE NATURE OF
THE WRIT. 

I START WITH THE PROPOSITION THAT HABEAS LIES TO INQUIRE INTO EVERY
CONSTITUTIONAL DEFECT IN ANY CRIMINAL TRIAL, WHERE THE PETITIONER
REMAINS "IN CUSTODY" BECAUSE OF THE JUDGMENT IN THAT TRIAL, UNLESS THE
ERROR COMMITTED WAS KNOWINGLY AND DELIBERATELY WAIVED OR CONSTITUTES
MERE HARMLESS ERROR.  THAT SEEMS TO BE THE IMPLICIT PREMISE OF BROWN V.
ALLEN, SUPRA, AND THE CLEAR PURPORT OF KAUFMAN V. UNITED STATES, SUPRA.
THIS IS NOT TO SAY, HOWEVER, THAT THE FUNCTION OF HABEAS CORPUS IS TO
PROVIDE A FEDERAL FORUM FOR DETERMINING WHETHER ANY INDIVIDUAL IS
PRESENTLY "IN CUSTODY IN VIOLATION OF THE CONSTITUTION . . . OF THE
UNITED STATES," 28 U.S.C. 2254 (1964 ED., SUPP. V), IN THE SENSE THAT
THE BASIS FOR HIS INCARCERATION WOULD, UNDER THE LAW EXISTING AT THE
TIME A PETITION IS FILED OR ADJUDICATED, AS DISTINGUISHED FROM THE LAW
THAT WAS APPLICABLE AT THE TIME HIS CONVICTION BECAME FINAL, BE HELD
FREE OF CONSTITUTIONAL ERROR.  CF. MEADOR, HABEAS CORPUS AND THE
"RETROACTIVITY" ILLUSION, 50 VA.L.REV.  1115 (1964). 

WHILE IT HAS BEEN GENERALLY, ALTHOUGH NOT UNIVERSALLY, ASSUMED THAT
HABEAS COURTS SHOULD APPLY CURRENT CONSTITUTIONAL LAW TO HABEAS
PETITIONERS BEFORE THEM, /3/  IT DO NOT BELIEVE THIS IS OR SHOULD BE
THE CORRECT VIEW.  FIRST, NO SUCH PROPOSITION HAS EVER BEEN SQUARELY
CONSIDERED AND EMBRACED BY THIS COURT, AT LEAST SINCE THE RECENT
PROLIFERATION OF CRIMINAL DEFENDANTS' PROTECTED CONSTITUTIONAL RIGHTS
AND THE CONCOMITANT EXPANSION OF THE WRIT.  /4/  MOREOVER, APPLYING
CURRENT CONSTITUTIONAL STANDARDS TO CONVICTIONS FINALIZED WHILE
DIFFERENT VIEWS WERE ASCENDANT APPEARS UNNECESSARY TO ACHIEVE THE ENDS
SOUGHT BY BROWN AND KAUFMAN.  THE PRIMARY JUSTIFICATION GIVEN BY THE
COURT FOR EXTENDING THE SCOPE OF HABEAS TO ALL ALLEGED CONSTITUTIONAL
ERRORS IS THAT IT PROVIDES A QUASI-APPELLATE REVIEW FUNCTION, FORCING
TRIAL AND APPELLATE COURTS IN BOTH THE FEDERAL AND STATE SYSTEM TO TOE
THE CONSTITUTIONAL MARK.  SEE KAUFMAN V. UNITED STATES, 394 U.S.,AT
226.  HOWEVER, THE OPINION IN KAUFMAN ITSELF CONCEDES THAT THERE IS NO
NEED TO APPLY NEW CONSTITUTIONAL RULES ON HABEAS TO SERVE THE INTERESTS
PROMOTED BY THAT DECISION.  394 U.S.,AT 229.  FURTHER, AS I EXPLAIN IN
THE MARGIN BELOW, /5/  CONGRESS, IN AT LEAST ONE SIGNIFICANT REGARD,
SEEMS PLAINLY TO HAVE DISAPPROVED THE NOTION THAT SUPERVENING
CONSTITUTIONAL INTERPRETATION OUGHT TO APPLY ON HABEAS INVOLVING STATE
CONVICTIONS. 

CLEARLY, IT IS AT LEAST FAIR TO REGARD THIS ISSUE AS NOT YET SETTLED
BY THIS COURT.  CONSEQUENTLY, I GO ON TO INQUIRE HOW IT OUGHT TO BE
RESOLVED.  FOR ME, WITH A FEW EXCEPTIONS, THE RELEVANT COMPETING
POLICIES PROPERLY BALANCE OUT TO THE CONCLUSION THAT, GIVEN THE CURRENT
BROAD SCOPE OF CONSTITUTIONAL ISSUES COGNIZABLE ON HABEAS, IT IS
SOUNDER, IN ADJUDICATING HABEAS PETITIONS, GENERALLY TO APPLY THE LAW
PREVAILING AT THE TIME A CONVICTION BECAME FINAL THAN IT IS TO SEEK TO
DISPOSE OF ALL THESE CASES ON THE BASIS OF INTERVENING CHANGES IN
CONSTITUTIONAL INTERPRETATION. 

I DO NOT MEAN TO NEGLECT THE FORCE OF COUNTERVAILING CONTENTIONS. 
ASSURING EVERY STATE AND FEDERAL PRISONER A FORUM IN WHICH HE CAN
CONTINUALLY LITIGATE THE CURRENT CONSTITUTIONAL VALIDITY OF THE BASIS
FOR HIS CONVICTION TENDS TO ASSURE A UNIFORMITY OF ULTIMATE TREATMENT
AMONG PRISONERS; PROVIDES A METHOD OF CORRECTING ABUSES NOW, BUT NOT
FORMERLY, PERCEIVED AS SEVERELY DETRIMENTAL TO SOCIETAL INTERESTS; AND
TENDS TO PROMOTE A ROUGH FORM OF JUSTICE, ALBEIT BELATED, IN THE SENSE
THAT CURRENT CONSTITUTIONAL NOTIONS, IT MAY BE HOPED, RING MORE
"CORRECT" OR "JUST" THAN THOSE THEY DISCARDED. 

IN MY VIEW, HOWEVER, THESE INTERESTS ARE TOO EASILY OVERSTATED. 
SOME DISCRIMINATION MUST ALWAYS EXIST IN THE LEGAL TREATMENT OF
CRIMINAL CONVICTS WITHIN A SYSTEM WHERE THE GOVERNING LAW IS
CONTINUOUSLY SUBJECT TO CHANGE.  AND IT HAS BEEN THE LAW, PRESUMABLY
FOR AT LEAST AS LONG AS ANYONE CURRENTLY IN JAIL HAS BEEN INCARCERATED,
THAT PROCEDURES UTILIZED TO CONVICT THEM MUST HAVE BEEN FUNDAMENTALLY
FAIR, THAT IS, IN ACCORDANCE WITH THE COMMAND OF THE FOURTEENTH
AMENDMENT THAT "(NO STATE SHALL . . . DEPRIVE ANY PERSON OF LIFE,
LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW."  TWINING V. NEW
JERSEY, 211 U.S. 78 (1908).  MOREOVER, IT IS TOO EASY TO SUGGEST THAT
CONSTITUTIONAL UPDATING IS NECESSARY IN ORDER TO ASSURE THAT THE SYSTEM
ARRIVES ONLY AT "CORRECT" RESULTS.  BY HYPOTHESIS, A FINAL CONVICTION,
STATE OR FEDERAL, HAS BEEN ADJUDICATED BY A COURT COGNIZANT OF THE
FEDERAL CONSTITUTION AND DUTY BOUND TO APPLY IT.  TO ARGUE THAT A
CONCLUSION REACHED BY ONE OF THESE "INFERIOR" COURTS IS SOMEHOW FOREVER
ERRONEOUS BECAUSE YEARS LATER THIS COURT TOOK A DIFFERENT VIEW OF THE
RELEVANT CONSTITUTIONAL COMMAND CARRIES MORE EMOTIONAL THAN ANALYTIC
FORCE.  NO ONE HAS PUT THIS POINT BETTER THAN MR. JUSTICE JACKSON, IN
HIS CONCURRING OPINION IN BROWN V. ALLEN, 344 U.S.,AT 540: 

"(REVERSAL BY A HIGHER COURT IS NOT PROOF THAT JUSTICE IS THEREBY
BETTER DONE.  THERE IS NO DOUBT THAT IF THERE WERE A SUPER-SUPREME
COURT, A SUBSTANTIAL PROPORTION OF OUR REVERSALS OF STATE COURTS WOULD
ALSO BE REVERSED.  WE ARE NOT FINAL BECAUSE WE ARE INFALLIBLE, BUT WE
ARE INFALLIBLE ONLY BECAUSE WE ARE FINAL." 

MORE IMPORTANTLY, THERE ARE OPERATIVE COMPETING POLICIES IN THIS
AREA WHICH I REGARD AS SUBSTANTIAL.  IT IS, I BELIEVE, A MATTER OF
FUNDAMENTAL IMPORT THAT THERE BE A VISIBLE END TO THE LITIGABLE ASPECT
OF THE CRIMINAL PROCESS.  FINALITY IN THE CRIMINAL LAW IS AN END WHICH
MUST ALWAYS BE KEPT IN PLAIN VIEW.  SEE, E.G., FAY V. NOIA, 372 U.S.,AT
445 (CLARK, J., DISSENTING); SPENCER V. TEXAS, 385 U.S. 554, 583 (1967)
(WARREN, C.J., CONCURRING AND DISSENTING).  SEE ALSO BATOR, FINALITY IN
CRIMINAL LAW AND FEDERAL HABEAS CORPUS FOR STATE PRISONERS, 76
HARV.L.REV.  441 (1963); FRIENDLY, IS INNOCENCE IRRELEVANT?  COLLATERAL
ATTACK ON CRIMINAL JUDGMENTS, 38 U.CHI.L.REV.  142, 146-151 (1970).  AS
I HAVE STATED BEFORE, "BOTH THE INDIVIDUAL CRIMINAL DEFENDANT AND
SOCIETY HAVE AN INTEREST IN INSURING THAT THERE WILL AT SOME POINT BE
THE CERTAINTY THAT COMES WITH AN END TO LITIGATION, AND THAT ATTENTION
WILL ULTIMATELY BE FOCUSED NOT ON WHETHER A CONVICTION WAS FREE FROM
ERROR BUT RATHER ON WHETHER THE PRISONER CAN BE RESTORED TO A USEFUL
PLACE IN THE COMMUNITY."  SANDERS V. UNITED STATES, 373 U.S.,AT 24-25
(HARLAN, J., DISSENTING).  AT SOME POINT, THE CRIMINAL PROCESS, IF IT
IS TO FUNCTION AT ALL, MUST TURN ITS ATTENTION FROM WHETHER A MAN OUGHT
PROPERLY TO BE INCARCERATED TO HOW HE IS TO BE TREATED ONCE CONVICTED. 
IF LAW, CRIMINAL OR OTHERWISE, IS WORTH HAVING AND ENFORCING, IT MUST
AT SOME TIME PROVIDE A DEFINITIVE ANSWER TO THE QUESTIONS LITIGANTS
PRESENT OR ELSE IT NEVER PROVIDES AN ANSWER AT ALL.  SURELY IT IS AN
UNPLEASANT TASK TO STRIP A MAN OF HIS FREEDOM AND SUBJECT HIM TO
INSTITUTIONAL RESTRAINTS.  BUT THIS DOES NOT MEAN THAT IN SO DOING, WE
SHOULD ALWAYS BE HALTING OR TENTATIVE.  NO ONE, NOT CRIMINAL
DEFENDANTS, NOT THE JUDICIAL SYSTEM, NOT SOCIETY AS A WHOLE IS
BENEFITED BY A JUDGMENT PROVIDING A MAN SHALL TENTATIVELY GO TO JAIL
TODAY, BUT TOMORROW AND EVERY DAY THEREAFTER HIS CONTINUED
INCARCERATION SHALL BE SUBJECT TO FRESH LITIGATION ON ISSUES ALREADY
RESOLVED. 

A RULE OF LAW THAT FAILS TO TAKE ACCOUNT OF THESE FINALITY INTERESTS
WOULD DO MORE THAN SUBVERT THE CRIMINAL PROCESS ITSELF.  IT WOULD ALSO
SERIOUSLY DISTORT THE VERY LIMITED RESOURCES SOCIETY HAS ALLOCATED TO
THE CRIMINAL PROCESS.  WHILE MEN LANGUISH IN JAIL, NOT UNCOMMONLY FOR
OVER A YEAR, AWAITING A FIRST TRIAL ON THEIR GUILT OR INNOCENCE, IT IS
NOT EASY TO JUSTIFY EXPENDING SUBSTANTIAL QUANTITIES OF THE TIME AND
ENERGIES OF JUDGES, PROSECUTORS, AND DEFENSE LAWYERS LITIGATING THE
VALIDITY UNDER PRESENT LAW OF CRIMINAL CONVICTIONS THAT WERE PERFECTLY
FREE FROM ERROR WHEN MADE FINAL.  SEE FRIENDLY, SUPRA, AT 148-149. 
THIS DRAIN ON SOCIETY'S RESOURCES IS COMPOUNDED BY THE FACT THAT
ISSUANCE OF THE HABEAS WRIT COMPELS A STATE THAT WISHES TO CONTINUE
ENFORCING ITS LAWS AGAINST THE SUCCESSFUL PETITIONER TO RELITIGATE
FACTS BURIED IN THE REMOTE PAST THROUGH PRESENTATION OF WITNESSES WHOSE
MEMORIES OF THE RELEVANT EVENTS OFTEN HAVE DIMMED.  THIS VERY ACT OF
TRYING STALE FACTS MAY WELL, IRONICALLY, PRODUCE A SECOND TRIAL NO MORE
RELIABLE AS A MATTER OF GETTING AT THE TRUTH THAN THE FIRST.  SEE
AMSTERDAM, SEARCH, SEIZURE, AND SECTION 2255:  A COMMENT, 112
U.PA.L.REV.  378, 384 (1964). 

IN SUM, WHILE THE CASE FOR CONTINUALLY INQUIRING INTO THE CURRENT
CONSTITUTIONAL VALIDITY OF CRIMINAL CONVICTIONS ON COLLATERAL ATTACK IS
NOT AN INSUBSTANTIAL ONE, IT IS BY NO MEANS OVERWHELMING.  MOST
INTERESTS SUCH A DOCTRINE WOULD SERVE WILL BE ADEQUATELY PROTECTED BY
THE CURRENT RULE THAT ALL CONSTITUTIONAL ERRORS NOT WAIVED OR HARMLESS
ARE CORRECTIBLE ON HABEAS AND BY DEFINING SUCH ERRORS ACCORDING TO THE
LAW IN EFFECT WHEN A CONVICTION BECAME FINAL.  THOSE INTERESTS NOT
SERVED BY THIS INTERMEDIATE POSITION ARE, IN MY VIEW, LARGELY
OVERRIDDEN BY THE INTERESTS IN FINALITY.     ALTHOUGH NOT NECESSARY TO
THE RESOLUTION OF EITHER OF THE TWO COLLATERAL CASES NOW HERE, FOR SAKE
OF COMPLETENESS I VENTURE TO ADD THAT I WOULD MAKE TWO EXCEPTIONS TO
THIS GENERAL PRINCIPLE.  FIRST, THE ABOVE DISCUSSION IS WRITTEN ONLY
WITH NEW "PROCEDURAL DUE PROCESS"  RULES IN MIND, THAT IS, THOSE
APPLICATIONS OF THE CONSTITUTION THAT FORBID THE GOVERNMENT TO UTILIZE
CERTAIN TECHNIQUES OR PROCESSES IN ENFORCING CONCEDEDLY VALID SOCIETAL
PROSCRIPTIONS ON INDIVIDUAL BEHAVIOR.  /6/  NEW "SUBSTANTIVE DUE
PROCESS" RULES, THAT IS, THOSE THAT PLACE, AS A MATTER OF
CONSTITUTIONAL INTERPRETATION, CERTAIN KINDS OF PRIMARY, PRIVATE
INDIVIDUAL CONDUCT BEYOND THE POWER OF THE CRIMINAL LAW-MAKING
AUTHORITY TO PROSCRIBE, /7/  MUST, IN MY VIEW, BE PLACED ON A DIFFERENT
FOOTING.  AS I NOTED ABOVE, THE WRIT HAS HISTORICALLY BEEN AVAILABLE
FOR ATTACKING CONVICTIONS ON SUCH GROUNDS.  /8/  THIS, I BELIEVE, IS
BECAUSE IT REPRESENTS THE CLEAREST INSTANCE WHERE FINALITY INTERESTS
SHOULD YIELD.  THERE IS LITTLE SOCIETAL INTEREST IN PERMITTING THE
CRIMINAL PROCESS TO REST AT A POINT WHERE IT OUGHT PROPERLY NEVER TO
REPOSE.  MOREOVER, ISSUANCE OF THE WRIT ON SUBSTANTIVE DUE PROCESS
GROUNDS ENTAILS NONE OF THE ADVERSE COLLATERAL CONSEQUENCES OF RETRIAL
I HAVE DESCRIBED ABOVE.  THUS, THE OBVIOUS INTEREST IN FREEING
INDIVIDUALS FROM PUNISHMENT FOR CONDUCT THAT IS CONSTITUTIONALLY
PROTECTED SEEMS TO ME SUFFICIENTLY SUBSTANTIAL TO JUSTIFY APPLYING
CURRENT NOTIONS OF SUBSTANTIVE DUE PROCESS TO PETITIONS FOR HABEAS
CORPUS.  SEE GENERALLY PART II OF MY OPINION FOR THE COURT IN UNITED
STATES V. UNITED STATES COIN & CURRENCY, POST, P. 722. 

SECONDLY, I THINK THE WRIT OUGHT ALWAYS TO LIE FOR CLAIMS OF
NONOBSERVANCE OF THOSE PROCEDURES THAT, AS SO APTLY DESCRIBED BY MR.
JUSTICE CARDOZO IN PALKO V. CONNECTICUT, 302 U.S. 319, 325 (1937), ARE
"IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY."  TYPICALLY, IT SHOULD BE
THE CASE THAT ANY CONVICTION FREE FROM FEDERAL CONSTITUTIONAL ERROR AT
THE TIME IT BECAME FINAL, WILL BE FOUND, UPON REFLECTION, TO HAVE BEEN
FUNDAMENTALLY FAIR AND CONDUCTED UNDER THOSE PROCEDURES ESSENTIAL TO
THE SUBSTANCE OF A FULL HEARING.  HOWEVER, IN SOME SITUATIONS IT MIGHT
BE THAT TIME AND GROWTH IN SOCIAL CAPACITY, AS WELL AS JUDICIAL
PERCEPTIONS OF WHAT WE CAN RIGHTLY DEMAND OF THE ADJUDICATORY PROCESS,
WILL PROPERLY ALTER OUR UNDERSTANDING OF THE BEDROCK PROCEDURAL
ELEMENTS THAT MUST BE FOUND TO VITIATE THE FAIRNESS OF A PARTICULAR
CONVICTION.  FOR EXAMPLE, SUCH, IN MY VIEW, IS THE CASE WITH THE RIGHT
TO COUNSEL AT TRIAL NOW HELD A NECESSARY CONDITION PRECEDENT TO ANY
CONVICTION FOR A SERIOUS CRIME.  SEE MY SEPARATE OPINION IN GIDEON V.
WAINWRIGHT, 372 U.S. 335, 349 (1963), WHERE I CONCURRED IN CONFERRING
THIS RIGHT ON A STATE PRISONER, SEEKING STATE HABEAS CORPUS, ON THE
GROUNDS THAT THIS "NEW" RULE WAS MANDATED BY PALKO.  HENCE, I WOULD
CONTINUE TO APPLY GIDEON ITSELF ON HABEAS, EVEN TO CONVICTIONS MADE
FINAL BEFORE THAT DECISION WAS RENDERED.  OTHER POSSIBLE EXCEPTIONS TO
THE FINALITY RULE I WOULD LEAVE TO BE WORKED OUT IN THE CONTEXT OF
ACTUAL CASES BROUGHT BEFORE US THAT RAISE THE ISSUE. 

SUBSEQUENT REFLECTION UPON WHAT I WROTE IN DESIST, WHERE I UNDERTOOK
TO EXPOSE IN A PRELIMINARY WAY SOME OF THE CONSIDERATIONS I THOUGHT
OUGHT TO GOVERN THE PROBLEM OF DECIDING WHICH, IF ANY, NEW
CONSTITUTIONAL RULES SHOULD BE HELD COGNIZABLE IN HABEAS PROCEEDINGS,
LEADS ME TO THESE ADDITIONAL OBSERVATIONS.  THERE I TENTATIVELY
SUGGESTED WE MIGHT APPLY THOSE NEW RULES THAT "SIGNIFICANTLY IMPROVE
THE PRE-EXISTING FACT-FINDING PROCEDURES" MANDATED BY THE FEDERAL
CONSTITUTION.  394 U.S.,AT 262.  CF. MISHKIN, THE SUPREME COURT 1964
TERM-- FOREWORD:  THE HIGH COURT, THE GREAT WRIT, AND THE DUE PROCESS
OF TIME AND LAW, 79 HARV.L.REV.  56, 77-101 (1965).  AS INDICATED
ABOVE, I AM NOW PERSUADED THAT THOSE NEW RULES COGNIZABLE ON HABEAS
OUGHT TO BE DEFINED, NOT BY THE "TRUTH-DETERMINING" TEST, BUT BY THE
PALKO TEST.  MY REASONS ARE SEVERAL.  FIRST, ADHERENCE TO PRECEDENT,
PARTICULARLY KAUFMAN V. UNITED STATES, MUST INELUCTABLY LEAD ONE TO THE
CONCLUSION THAT IT IS NOT A PRINCIPAL PURPOSE OF THE WRIT TO INQUIRE
WHETHER A CIMINAL CONVICT DID IN FACT COMMIT THE DEED ALLEGED. 
ADDITIONALLY, RECENT DECISIONS OF THIS COURT, E.G., COLEMAN V. ALABAMA,
399 U.S. 1 (1970), HAVE REVEALED JUST HOW MARGINALLY EFFECTIVE ARE SOME
NEW RULES PURPORTEDLY AIMED AT IMPROVING THE FACT-FINDING PROCESS.  I
CANNOT BELIEVE THAT THE INTEREST IN FINALITY IS ALWAYS OUTWEIGHED BY
THE INTERESTS PROTECTED IN CASES LIKE COLEMAN.  CF. SPENCER V. TEXAS,
385 U.S.,AT 583 (WARREN, C.J., CONCURRING AND DISSENTING).  I BELIEVE
PALKO MORE CORRECTLY MARKS THE TIPPING POINT OF FINALITY INTERESTS, NOT
ONLY IN TERMS OF DIVINING WHICH NEW RULES SHOULD APPLY ON HABEAS, BUT
ALSO IN ITS REMINDER THAT A PARTICULAR RULE MAY BE MORE OR LESS CRUCIAL
TO THE FAIRNESS OF A CASE DEPENDING ON ITS OWN FACTUAL SETTING. 
FINALLY, I FIND INHERENTLY INTRACTABLE THE PURPORTED DISTINCTION
BETWEEN THOSE NEW RULES THAT ARE DESIGNED TO IMPROVE THE FACTFINDING
PROCESS AND THOSE DESIGNED PRINCIPALLY TO FURTHER OTHER VALUES.  FOR A
PERFECT EXAMPLE, NOTE THE PLURALITY'S DIFFICULTY TODAY IN EXPLAINING,
ON THAT BASIS, RETROACTIVITY DECISIONS SUCH AS JOHNSON V. NEW JERSEY,
384 U.S. 719 (1966); STOVALL V. DENNO, 388 U.S. 293 (1967); AND
DESTEFANO V. WOODS, 392 U.S. 631 (1968).  WILLIAMS V. UNITED STATES,
ANTE, AT 655-656, N. 7. 

SECONDLY, IN DESIST I WENT TO SOME LENGTHS TO POINT OUT THE
INEVITABLE DIFFICULTIES THAT WILL ARISE IN ATTEMPTING "TO DETERMINE
WHETHER A PARTICULAR DECISION HAS REALLY ANNOUNCED A 'NEW' RULE AT ALL
OR WHETHER IT HAS SIMPLY APPLIED A WELL-ESTABLISHED CONSTITUTIONAL
PRINCIPLE TO GOVERN A CASE WHICH IS CLOSELY ANALOGOUS TO THOSE WHICH
HAVE BEEN PREVIOUSLY CONSIDERED IN THE PRIOR CASE LAW."  394 U.S.,AT
263.  SEE GENERALLY ID., AT 263-269.  I REMAIN FULLY COGNIZANT OF THESE
PROBLEMS AND REALIZE THEY WILL PRODUCE SOME DIFFICULTIES IN
ADMINISTERING THE WRIT, BUT BELIEVE THEY WOULD BE GREATLY AMELIORATED
BY ADEQUATE RECOGNITION OF THE PRINCIPLE OF FINALITY IN THE OPERATION
OF THE CRIMINAL PROCESS. 

        III 

I REALIZE, OF COURSE, THAT THIS OPINION, WHICH IS ALREADY
UNFORTUNATELY LENGTHY, HAS THUS FAR NOT BEEN DIRECTLY RESPONSIVE TO THE
PLURALITY OPINIONS ANNOUNCED IN THESE CASES.  ESSENTIALLY THIS IS
BECAUSE I DO NOT PERCEIVE THE ISSUES RAISED BY THESE CASES FROM THE
SAME PERSPECTIVE AS MY BRETHREN.  CERTAIN ASPECTS OF THE OTHER OPINIONS
ANNOUNCED TODAY DO, HOWEVER, FAIRLY CALL FOR A RESPONSE BOTH BECAUSE
THEY CONTAIN SOME SMALL SEEDS OF A CHALLENGE TO WHAT I HAVE SAID ABOVE
AND BECAUSE I THINK, WITH RESPECT, THAT WHAT IS WRITTEN TODAY BY SOME
OF THOSE WHO WOULD GIVE VIRTUALLY UNLIMITED SWEEP TO THIS
"RETROACTIVITY" DOCTRINE STRIKINGLY ILLUMINATES THE FAULTY PREMISES OF
THE THINKING IN THIS ENTIRE FIELD. 

IN THE PLURALITY OPINIONS IN WILLIAMS AND ELKANICH, AND MACKEY THE
ONLY CHALLENGE I PERCEIVE TO MY VIEWS IS THE SINGLE ASSERTION THAT MY
ANALYSIS IS UNTENABLE BECAUSE UNSUPPORTED BY PRECEDENT.  WILLIAMS V.
UNITED STATES, ANTE, AT 651-652.  TRULY, THIS IS A REMARKABLE CLAIM. 
FOR LINKLETTER V. WALKER, SUPRA, THE WELLSPRING OF THE CURRENT
RETROACTIVITY DOCTRINE, TOOK AS ITS POINT OF DEPARTURE THE VERY
DISTINCTION BETWEEN DIRECT REVIEW AND COLLATERAL ATTACK WHICH I HAVE
ARGUED IS CRUCIAL TO ANY ANALYSIS IN THIS FIELD, A DISTINCTION WHICH
THE COURT NOW FIRMLY DISCARDS. 

FURTHER, AS THE DISSENTING OPINION IN UNITED STATES V. UNITED STATES
COIN & CURRENCY, POST, AT 735, POINTS OUT, IN AN ANALOGOUS SITUATION,
THE LEGISLATIVE REPEAL OF A CRIMINAL STATUTE, "THE JUDGE-MADE RULE WAS
THAT THOSE WHOSE CONVICTIONS HAD BEEN FINALLY AFFIRMED WHEN REPEAL TOOK
PLACE RECEIVED NO BENEFIT FROM THE NEW RULE; BUT REPEAL OF A STATUTE
ABATED PENDING PROSECUTIONS AND REQUIRED REVERSAL OF CONVICTIONS STILL
ON APPEAL WHEN THE LAW WAS CHANGED."  IN OTHER WORDS, THE PRECISE
DISTINCTION I HAVE URGED BETWEEN DIRECT REVIEW AND COLLATERAL ATTACK,
BASED NOT ON THE NATURE OF THE ACT OF CHANGING THE LAW OR OF THE NEW
LAW THUS PRONOUNCED BUT, INSTEAD, ON THE NATURE OF THE ADJUDICATORY
CONTEXT IN WHICH THE CLAIM OF LEGAL ERROR WAS PRESENTED HAS
CONSISTENTLY BEEN THE MODEL FOR THE JUDICIAL PROCESS.  INDEED, IT WOULD
SEEM THAT THE ONLY PRECEDENTIAL SUPPORT FOR THE POSITION THAT PREVAILS
TODAY IS THAT CONFLICTING AND CONFUSING FLURRY OF "RETROACTIVITY"
OPINIONS THAT COMMENCED LESS THAN FIVE YEARS AGO WITH JOHNSON V. NEW
JERSEY, 384 U.S. 719 (1966). 

OTHER ASPECTS OF THE DISSENT IN COIN & CURRENCY, SUPRA, MIGHT, IT
SEEMS TO ME, BE CONSTRUED AS A FURTHER CHALLENGE TO THE VIEWS I HAVE
EXPRESSED HERE SINCE THAT OPINION IS SUBSCRIBED TO BY A MAJORITY OF
THOSE MEMBERS OF THE COURT WHO HAVE DETERMINED THAT, FOR PURPOSES OF
DECIDING WHETHER NEW SEARCH AND SEIZURE RULES APPLY TO SUBSEQUENT CASES
ARISING IN FEDERAL COURTS, THE PROCESS INVOKED BY THE LITIGANTS IS
IRRELEVANT.  IN ANY EVENT, I FIND THE IMPLICATIONS OF THE ANALYSIS
UNDERLYING THAT DISSENT STARTLING.  FOR EXAMPLE, THAT CONGRESS
CURRENTLY PROVIDES THAT STATUTORY REPEAL SHALL NOT ABATE PENDING
PROSECUTIONS OR REQUIRE REVERSAL OF NONFINAL CONVICTIONS SEEMS TO ME A
SINGULARLY UNHELPFUL BIT OF INFORMATION.  WE SIT AS A COURT OF LAW, NOT
A COUNCIL OF REVISION.  OUR POWERS OF JUDICIAL REVIEW ARE JUDICIAL, NOT
LEGISLATIVE, IN NATURE.  THE ASSERTION THAT THIS EVIDENCE IS RELEVANT
DATA FOR RESOLVING THE PROBLEMS AT HAND SERVES AT BEST ONLY TO MAKE
EXPLICIT THAT WHICH I HAVE ATTEMPTED TO DEMONSTRATE IN PART I OF THIS
OPINION-- THAT THE RETROACTIVITY ANALYSIS CURRENTLY ASCENDANT IN THIS
COURT PROCEEDS ON THE FALSE AND UNACCEPTABLE PREMISE THAT
CONSTITUTIONAL INTERPRETATION IS NOT PURELY A JUDICIAL, BUT, RATHER,
SOMETHING AKIN TO A LEGISLATIVE, PROCESS.  IF, IN FACT, THAT PREMISE IS
TRUE WE OUGHT NOT TO BE WRITING RETROACTIVITY OPINIONS BUT INSTEAD
RELINQUISHING SOME OF OUR POWERS OF JUDICIAL REVIEW. 

THE DISSENTING OPINION ATTEMPTS TO PALLIATE ITS INVOCATION OF THE
LEGISLATIVE PROCESS BY ALTERNATELY SUGGESTING THAT THE TYPICAL
STATUTORY RULE IS, BECAUSE WIDESPREAD, PART OF OUR FABRIC OF "POSITIVE
LAW" AND THE ISSUE, THEREFORE, IS WHETHER THIS COURT SHOULD CARRY THIS
POLICY OVER TO THE REALM OF CONSTITUTIONAL INTERPRETATION.  THREE CASES
ARE CITED THAT ALLEGEDLY REVEAL WE ARE NOT FORECLOSED FROM TAKING THIS
COURSE.  THE SHORT ANSWER TO ALL THIS REMAINS THE SAME:  THE
DISTINCTION BETWEEN JUDICIAL AND LEGISLATIVE POWER IS EQUALLY WOVEN
DEEPLY INTO THE FABRIC OF OUR POSITIVE LAW.  SO, TOO, IS THE NOTION
THAT THIS COURT DEFINITIVELY INTERPRETS THE CONSTITUTION ONLY BECAUSE
ITS ROLE AS A COURT OF LAW REQUIRES IT TO DO SO.  IT IS NOT SURPRISING,
THEN, TO DISCOVER UPON CLOSER ANALYSIS THAT THE CITED CASES DO NOT BEAR
THE HEAVY WEIGHT PLACED ON THEM.  GELPCKE V. CITY OF DUBUQUE, 1 WALL. 
175 (1864), HOLDS ONLY THAT STATE COURTS MAY BE COMPELLED IN SOME
SITUATIONS BY PARTICULAR PROVISIONS OF THE FEDERAL CONSTITUTION TO
APPLY CERTAIN NEW RULES PROSPECTIVELY ONLY.  NO SUCH CLAIM HAS EVER
BEEN MADE ABOUT THESE NEW CONSTITUTIONAL RULES OF CRIMINAL PROCEDURE. 
GREAT NORTHERN R. CO. V. SUNBURST OIL & REFINING CO., 287 U.S. 358
(1932), MERELY HOLDS THAT THE FEDERAL CONSTITUTION IMPOSES NO BARRIER
TO A STATE COURT'S DECISION TO APPLY A NEW STATE COMMON-LAW RULE
PROSPECTIVELY ONLY.  IS IT NOT SUFFICIENT ANSWER TO THE DISSENTERS'
FINAL ASSERTION OF PRECEDENTIAL SUPPORT TO POINT OUT THAT CHICTO COUNTY
DRAINAGE DISTRICT V. BAXTER STATE BANK, 308 U.S. 371 (1940), WAS A
COLLATERAL ATTACK ON A CIVIL JUDGMENT ALREADY OTHERWISE FINAL AND
ENTITLED TO RES JUDICATA EFFECT?  AND, FURTHER, THAT IT WAS WRITTEN BY
THE SAME CHIEF JUSTICE, HUGHES, WHO HAD HELD SIX YEARS EARLIER IN
UNITED STATES V. CHAMBERS, 291 U.S. 217 (1934), THAT REPEAL OF THE
EIGHTEENTH AMENDMENT ABATED ALL PROSECUTIONS BEGUN, AND REQUIRED
REVERSAL ON DIRECT REVIEW OF ALL CONVICTIONS OBTAINED, UNDER STATUTES
DEPENDENT FOR THEIR CONSTITUTIONALITY ON THE REPEALED AMENDMENT, YET
DID NOT AFFECT FINAL CONVICTIONS SO OBTAINED? 

        IV 

BECAUSE MY COMPREHENSION OF THE RELEVANT ISSUES DIVERGES SO
SUBSTANTIALLY FROM THAT OF THE COURT IT IS NECESSARY FOR ME TO DISCUSS
SEPARATELY MY VIEW AS TO THE PROPER DISPOSITION OF EACH OF THESE THREE
CASES. 

        A 

WILLIAMS V. UNITED STATES (DIRECT REVIEW).  AS THIS CASE IS HERE ON
DIRECT REVIEW, I WOULD APPLY TO ITS RESOLUTION THE RULE ENUNCIATED IN
CHIMEL V. CALIFORNIA, 395 U.S. 752.  THE PLURALITY CORRECTLY DESCRIBES
THE SALIENT FACTS IN THIS CASE AT N. 2 OF ITS OPINION, ANTE, AT 650
651, AND I AGREE THEY PLAINLY REVEAL A VIOLATION OF CHIMEL.  INDEED,
THE NINTH CIRCUIT PANEL BELOW, ALTHOUGH IT HELD CHIMEL NONRETROACTIVE,
EXPLICITLY FOUND THE SEARCH HERE INVOLVED INCONSISTENT WITH THE
DICTATES OF CHIMEL.  418 F.2D 159, 161 (CA9 1969).  CONSEQUENTLY, I
WOULD REVERSE THE JUDGMENT BELOW AND REMAND WITH INSTRUCTIONS TO VACATE
THE JUDGMENT OF CONVICTION. 

        B 

ELKANICH V. UNITED STATES (COLLATERAL REVIEW).  I AGREE, BUT FOR
WHOLLY DIFFERENT REASONS, WITH THE COURT'S VIEW, EXPRESSED IN N. 2 OF
ITS OPINION, ANTE, AT 651, THAT WE NEED NOT EVALUATE THE SEARCH OF
ELKANICH'S APARTMENT IN LIGHT OF THE PRECEPTS OF CHIMEL.  HIS
CONVICTION BECAME FINAL FIVE YEARS PRIOR TO CHIMEL'S PROMULGATION, AND
PREVAILING LAW AT THAT TIME CERTAINLY VALIDATED THE SEARCH HERE
INVOLVED.  SEE UNITED STATES V. RABINOWITZ, 339 U.S. 56 (1950), AND
HARRIS V. UNITED STATES, 331 U.S. 145 (1947).  AN APPRAISAL OF THE
FACTS SURROUNDING THIS SEARCH LEADS ME QUITE EASILY TO CONCLUDE THAT
THE PRECEDURES USED IN OBTAINING THIS CONVICTION WERE NOT SO
FUNDAMENTALLY DEVOID OF THE NECESSARY ELEMENTS OF PROCEDURAL DUE
PROCESS AS TO REQUIRE UPSETTING THIS CONVICTION IN SPITE OF THE FACT
THAT IT WAS PERFECTLY LAWFUL WHEN MADE FINAL.  THE AGENTS HERE CLEARLY
HAD PROBABLE CAUSE TO ARREST PETITIONER, WERE NOT UNDERTAKING A FISHING
EXPEDITION FOR ANY EVIDENCE THEY MIGHT FIND BUT, RATHER, WERE LOOKING
FOR SPECIFIC ITEMS THAT THEY HAD REASON TO BELIEVE MIGHT BE CONCEALED
IN VARIOUS PLACES AROUND THE PREMISES AND, INDEED, GENERALLY LIMITED
THEIR SEARCH TO AREAS INDICATED BY PETITIONER.  I WOULD AFFIRM THE
JUDGMENT BELOW.              C 

MACKEY V. UNITED STATES (COLLATERAL REVIEW).  PETITIONER IN THIS
CASE SEEKS RELIEF FROM CONFINEMENT BY WAY OF HABEAS.  AT HIS TRIAL FOR
EVADING PAYMENT OF INCOME TAXES, PART OF THE GOVERNMENT'S CASE IN CHIEF
CONSISTED OF THE INTRODUCTION OF 60 WAGERING EXCISE TAX RETURNS.  AT
THE TIME HIS CONVICTION BECAME FINAL IN 1965, THE INTRODUCTION OF THESE
STATEMENTS WOULD HAVE BEEN PERMISSIBLE UNDER THE AUTHORITY OF UNITED
STATES V. KAHRIGER, 345 U.S. 22 (1953).  I FIND IT UNNECESSARY TO
INQUIRE WHETHER IT INEVITABLY FOLLOWS FROM THE NEW RULE ENUNCIATED IN
MARCHETTI AND GROSSO THAT SUCH A PROCEDURE WOULD TODAY BE HELD AN
UNACCEPTABLE ABIRDGMENT OF PETITIONER'S FIFTH AMENDMENT RIGHT TO BE
FREE OF COMPULSORY SELF-INCRIMINATION.  FOR, EVEN ASSUMING THE LATTER
CASES, IF APPLICABLE, WOULD PRODUCE A DIFFERENT RESULT, I CANNOT
CONCLUDE THAT THIS CHANGE IN THE LAW WOULD BE SUFFICIENT TO ENTITLE
PETITIONER TO THE ISSUANCE OF A WRIT OF HABEAS CORPUS. 

MACKEY IS NOT ASSERTING THAT THE CONDUCT FOR WHICH HE IS BEING
PUNISHED, EVADING PAYMENT OF HIS FEDERAL INCOME TAXES, HAS BEEN HELD TO
BE CONSTITUTIONALLY IMMUNE FROM PUNISHMENT.  IN THIS REGARD, MACKEY'S
CLAIM DIFFERS FROM THAT RAISED BY THE RESPONDENT IN COIN & CURRENCY,
ALSO DECIDED TODAY, WHERE MARCHETTI AND GROSSO DO OPERATE TO RENDER
CONGRESS POWERLESS TO PUNISH THE CONDUCT THERE AT ISSUE.  INSTEAD,
MACKEY'S CLAIM IS THAT THE PROCEDURES UTILIZED IN PROCURING HIS
CONVICTION WERE VITIATED BY THE MARCHETTI AND GROSSO DECISIONS.  SINCE
MATTERS OF PROCEDURE RATHER THAN SUBSTANCE ARE INVOLVED, SEE PART II OF
THIS OPINION, I WOULD APPLY TO THE RESOLUTION OF THIS HABEAS PETITION
THE LAW IN EFFECT AT THE TIME MACKEY'S CONVICTION BECAME FINAL, ABSENT
A SHOWING THAT THE PROCEDURES EMPLOYED WERE FUNDAMENTALLY UNFAIR. 
WHILE KAHRIGER DID INDEED, IN MY JUDGMENT, REST UPON AN "EXCESSIVELY
NARROW" VIEW OF THE SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION,
I CANNOT SAY THAT HINDSIGHT REVEALS THAT JUDGMENT TO HAVE BEEN SO
GROSSLY ERRONEOUS AS TO AMOUNT TO THE PERPETRATION OF AN INEXCUSABLE
INEQUITY AGAINST MACKEY IN THESE CIRCUMSTANCES.  DESPITE OUR REJECTION
OF IT AS A MATTER OF FIFTH AMENDMENT POLICY, THE PRIOR JUSTIFICATION OF
THE GOVERNMENT'S ACTIVITY IN THIS AREA-- THAT PERSONS AFFECTED COULD
AVOID INCRIMINATION BY CEASING TO ENGAGE IN ILLEGAL ACTIVITIES-- IS NOT
WITHOUT SOME FORCE. 

ALTHOUGH THE QUESTION IS, FOR ME, NOT FREE OF DIFFICULTY, I WOULD
AFFIRM THE JUDGMENT BELOW FOR THE REASONS STATED ABOVE. 

        V 

IN CONCLUSION, THE COURT IN DECIDING THESE CASES SEEMS LARGELY TO
HAVE FORGOTTEN THE LIMITATIONS THAT ACCOMPANY ITS FUNCTIONS AS A COURT
OF LAW.  FOR THE RETROACTIVITY DOCTRINE ANNOUNCED TODAY BESPEAKS MORE
CONSIDERATIONS OF POLICY THAN OF LEGAL PRINCIPLE.  TREATING DIRECT AND
COLLATERAL REVIEW AS IF THEY WERE OF ONE PIECE SEEMS TO ME FAULTY
ANALYSIS, IGNORING, AS IT DOES, THE JURISPRUDENTIAL CONSIDERATIONS THAT
DIFFERENTIATE THE TWO KINDS OF ADJUDICATORY FUNCTIONS.  AS A COURT OF
LAW WE HAVE NO RIGHT ON DIRECT REVIEW TO TREAT ONE CASE DIFFERENTLY
FROM ANOTHER WITH RESPECT TO CONSTITUTIONAL PROVISIONS APPLICABLE TO
BOTH.  AS REGARDS CASES COMING HERE ON COLLATERAL REVIEW, THE PROBLEM
OF RETROACTIVITY IS IN TRUTH NONE OTHER THAN ONE OF RESETTLING THE
LIMITS OF THE REACH OF THE GREAT WRIT, WHICH UNDER THE RECENT DECISIONS
OF THIS COURT HAS BEEN GIVEN ALMOST BOUNDLESS SWEEP.  /9/  UNTIL THE
COURT IS PREPARED TO DO THIS I CAN SEE NO REALLY SATISFACTORY SOLUTION
TO THE RETROACTIVITY PROBLEM.  MEANWHILE, I VERY MUCH REGRET TO SEE THE
EXISTING FREE-WHEELING APPROACH TO THAT PROBLEM NOW REWRITTEN INTO THE
JURISPRUDENCE OF THIS COURT. 

I WOULD AFFIRM THE JUDGMENTS IN NOS. 36 AND 82 AND REVERSE THE
JUDGMENT IN NO. 81 UPON THE PREMISES DISCUSSED IN THIS OPINION. 

/1/  I REALIZE, OF COURSE, THAT STATE PRISONERS ARE ENTITLED TO SEEK
RELEASE VIA HABEAS CORPUS UNDER 28 U.S.C. 2241, WHILE FEDERAL PRISONERS
TECHNICALLY UTILIZE WHAT IS DENOMINATED A MOTION TO VACATE JUDGMENT
UNDER 28 U.S.C. 2255.  HOWEVER, OUR CASES MAKE THESE REMEDIES VIRTUALLY
CONGRUENT AND THE PURPOSE OF SUBSTITUTING A MOTION TO VACATE FOR THE
TRADITIONAL HABEAS ACTION IN THE FEDERAL SYSTEM WAS SIMPLY TO ALTER ONE
MINOR JURISDICTIONAL BASIS FOR THE WRIT.  SEE UNITED STATES V. HAYMAN,
342 U.S. 205 (1952).  AS I DO NOT PROPOSE TO MAKE ANY DISTINCTION, FOR
RETROACTIVITY PURPOSES, BETWEEN STATE AND FEDERAL PRISONERS SEEKING
COLLATERAL RELIEF, I SHALL REFER THROUGHOUT THIS OPINION TO BOTH
PROCEDURES AS THE WRIT OF HABEAS CORPUS, AND CASES BEFORE US INVOLVING
SUCH JUDGMENTS AS CASES HERE ON COLLATERAL REVIEW. 

/2/  FOR EXAMPLE, WE HAVE MORE THAN ONCE IN RECENT YEARS HAD BEFORE
US A LIBEL CASE IN WHICH A PARTY WAS ALLEGEDLY LIBELED AND BROUGHT SUIT
FOR REDRESS PRIOR TO THIS COURT'S DECISION IN NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254 (1964), WHERE WE ANNOUNCED A NEW CONSTITUTIONAL
RULE GOVERNING LIABILITY IN LIBEL SUITS BROUGHT BY PUBLIC OFFICIALS. 
YET NO ONE CONNECTED WITH SUCH CASES HAS EVER BEEN HEARD TO DO SO MUCH
AS HINT THAT THE NEW YORK TIMES RULES IS NOT APPLICABLE BECAUSE THE
CONDUCT COMPLAINED OF OCCURRED OR THE SUIT WAS BROUGHT BEFORE THIS NEW
RULE WAS PROMULGATED.  SEE, E.G., ROSENBLATT V. BAER, 383 U.S. 75
(1966).  CF. THORPE V. HOUSING AUTHORITY, 393 U.S. 268, 281-283
(1969). 

CONVERSELY, IS IT NOT PERFECTLY CLEAR THAT, HAD SUCH A PARTY
PROCURED AND COLLECTED A FINAL DAMAGE AWARD PRIOR TO NEW YORK TIMES,
THE DEFENDANT COULD NOT HAVE URGED THAT THE CASE BE REOPENED SOLELY
BECAUSE OF OUR SUBSEQUENT DECISION IN THAT CASE?  ABSENT PROOF OF FRAUD
OR WANT OF JURISDICTION IN THE TRIAL COURT THAT JUDGMENT WOULD BE RES
JUDICATA AND ENTITLED TO FULL FAITH AND CREDIT THROUGHOUT THE LAND. 

THIS IS NOT TO SUGGEST THAT CIVIL AND CRIMINAL COLLATERAL ATTACK
OUGHT NECESSARILY TO BE PRECISELY CONGRUENT IN THE FEDERAL SYSTEM.  BUT
CERTAINLY IT ILLUSTRATES THAT THE LAW HAS ALWAYS PERCEIVED COLLATERAL
ATTACK AS A PROBLEM QUITE DIFFERENT FROM DIRECT APPEAL. 

/3/  PROFESSOR MISHKIN HAS POINTED OUT THAT "PRIOR TO LINKLETTER,
THE CRITERIA APPLIED IN FEDERAL HABEAS CORPUS PROCEEDINGS WERE
UNIFORMLY THE CONSTITUTIONAL STANDARDS IN EFFECT AT THE TIME OF THOSE
PROCEEDINGS, REGARDLESS OF WHEN THE CONVICTION WAS ACTUALLY ENTERED." 
MISHKIN, THE SUPREME COURT 1964 TERM-- FOREWARD:  THE HIGH COURT, THE
GREAT WRIT, AND THE DUE PROCESS OF TIME AND LAW, 79 HARV.L.REV.  56, 78
(1965).  SEE ALSO, E.G., NOTE, DEVELOPMENTS IN THE LAW-- FEDERAL HABEAS
CORPUS, 83 HARV.L.REV.  1040, 1151, 1153 (1970); SANDERS V. UNITED
STATES, 373 U.S. 1, 17 (1963); MILLER V. GLADDEN, 341 F.2D 972, 975
(CA9 1965). 

FOR A COUNTER-EXAMPLE, SEE MILTON V. WAINWRIGHT, 306 F.SUPP.  929
(SD FLA. 1969), WHERE A DISTRICT JUDGE ADJUDICATING A HABEAS PETITION
DECLINED TO CONSIDER ANY OF THIS COURT'S DECISIONS RELATING TO
INVOLUNTARY CONFESSIONS THAT POSTDATED 1958, THE TIME AT WHICH THE
PETITIONER'S MURDER CONVICTION BECAME FINAL.  SEE ALSO N. 4, INFRA. 

/4/  ARGUABLY, RECK V. PATE, 367 U.S. 433 (1961), TACITLY HOLDS THAT
HABEAS PETITIONS MUST BE JUDGED IN ACCORDANCE WITH CURRENT LAW.  THE
COURT THERE DIRECTED THE ISSUANCE OF THE WRIT ON THE GROUND THAT
PETITIONER'S CONVICTION, WHICH BECAME FINAL IN 1936, HAD BEEN PROCURED
BY THE INTRODUCTION INTO EVIDENCE OF AN ILLEGALLY OBTAINED CONFESSION,
RELYING HEAVILY ON CASES DECIDED BY THIS COURT SUBSEQUENT TO 1936.  THE
DISTRICT COURT, IN DENYING RELIEF, HAD CLEARLY HELD THAT THE
ADMISSIBILITY OF HIS CONFESSION WAS TO BE JUDGED BY STANDARDS
PREVAILING IN 1936.  UNITED STATES EX REL. RECK V. RAGEN, 172 F.SUPP. 
734, 745-746 (ND ILL. 1959).  HOWEVER, THIS CHOICE OF LAW PROBLEM WAS
NOT EXPRESSLY ADVERTED TO AND THE CASE AROSE BEFORE THIS COURT PRODUCED
THE RECENT ENLARGEMENT OF NEW CONSTITUTIONAL RULES OF CRIMINAL
PROCEDURE. 

/5/  IN 1966, CONGRESS AMENDED THE HABEAS STATUTES TO DEAL WITH THIS
COURT'S DISCUSSION IN SANDERS V. UNITED STATES, 373 U.S. 1 (1963), OF
RES JUDICATA PRINCIPLES AS THEY APPLY TO HABEAS CORPUS.  ONE SUBSECTION
OF THAT NEW STATUTE PROVIDES: 

"IN A HABEAS CORPUS PROCEEDING BROUGHT IN BEHALF OF A PERSON IN
CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT, A PRIOR JUDGMENT OF
THE SUPREME COURT OF THE UNITED STATES ON AN APPEAL OR REVIEW . . . OF
THE DECISION OF SUCH STATE COURT, SHALL BE CONCLUSIVE AS TO ALL ISSUES
OF FACT OR LAW . . . ACTUALLY ADJUDICATED BY THE SUPREME COURT THEREIN,
UNLESS THE APPLICANT . . . SHALL PLEAD AND THE COURT SHALL FIND THE
EXISTENCE OF A MATERIAL AND CONTROLLING FACT WHICH DID NOT APPEAR IN
THE RECORD OF THE PROCEEDING IN THE SUPREME COURT (AND COULD NOT HAVE
BEEN PUT IN BY EXERCISING DUE DILIGENCE)."  28 U.S.C. 2244(C) (1964
ED., SUPP. V). 

UNLESS ONE IS TO READ "FACT" AS INCLUDING A CHANGE IN THE LAW, IT
WOULD SEEM THAT CONGRESS HAS PROVIDED IN THESE CIRCUMSTANCES FOR
FINALITY AS TO LEGAL DETERMINATIONS.  THAT "FACT" IS PROPERLY READ
NARROWLY SEEMS THE BETTER VIEW IN LIGHT OF SUBSECTIONS (A) AND (B)
WHICH PERMIT A SUBSEQUENT HABEAS PETITION (WHERE THERE WAS NO SUPREME
COURT REVIEW) IF IT PRESENTS A "NEW GROUND" OR "A FACTUAL OR OTHER
GROUND NOT ADJUDICATED ON THE (PRIOR) HEARING."  ALTHOUGH THE
LEGISLATIVE HISTORY IS EXTREMELY SPARSE, IT FULLY SUPPORTS THIS
READING.  BOTH THE HOUSE AND SENATE COMMITTEE REPORTS ACCOMPANYING
THESE AMENDMENTS STATED THAT THE PURPOSE OF THE REFORMULATION OF SEC.
2244 WAS TO INTRODUCE A GREATER MEASURE OF FINALITY INTO THE LAW BY
PROVIDING FOR A QUALIFIED APPLICATION OF THE RES JUDICATA CONCEPT.  SEE
H.R. REP. NO. 1892, 89TH CONG., 2D SESS., 3, 8 (1966); S. REP. NO.
1797, 89TH CONG., 2D SESS., 2 (1966).  THERE WAS NO RELEVANT FLOOR
DEBATE ON THESE AMENDMENTS. 

NOR DO I THINK THE CONVERSE INFERENCE CAN PROPERLY BE DRAWN THAT, IF
CONGRESS PROVIDED LEGAL FINALITY FOR THOSE PRISONERS WHOSE CONVICTIONS
HAD BEEN AFFIRMED BY US, IT INTENTIONALLY DETERMINED THAT OTHER
CONVICTS SHOULD BE ABLE TO AVAIL THEMSELVES OF ALL NEW CONSTITUTIONAL
RULES ON HABEAS.  THE LANGUAGE OF SUBSECTIONS (A) AND (B) CERTAINLY
DOES NOT COMPEL SUCH A CONCLUSION.  THE CONGRESSIONAL COMMITTEE REPORTS
NEITHER STATE NOR FAIRLY IMPLY THAT THESE AMENDMENTS WERE DESIGNED TO
ACHIEVE THE MAXIMUM FEASIBLE OR DESIRABLE FINALITY IN HABEAS
PROCEEDINGS.  MOST IMPORTANT, IT IS DIFFICULT TO IMAGINE WHAT WOULD BE
THE RATIONALE FOR SUCH A DISTINCTION MERELY BETWEEN THOSE WHO HAVE AND
HAVE NOT, AT SOME TIME IN THE REMOTE PAST, HAD FULL REVIEW OF THEIR
CASES IN THIS COURT. 

/6/  I HAVE IN MIND, OF COURSE, DECISIONS SUCH AS GIDEON V.
WAINWRIGHT, 372 U.S. 335 (1963); MAPP V. OHIO, 367 U.S. 643 (1961);
MIRANDA V. ARIZONA, 384 U.S. 436 (1966); CHIMEL V. CALIFORNIA, 395 U.S.
752 (1969). 

/7/  FOR EXAMPLE, STREET V. NEW YORK, 394 U.S. 576 (1969); STANLEY
V. GEORGIA, 394 U.S. 557 (1969); GRISWOLD V. CONNECTICUT, 381 U.S. 479
(1965); LOVING V. VIRGINIA, 388 U.S. 1 (1967).  SOME RULES MAY HAVE
BOTH PROCEDURAL AND SUBSTANTIVE REMIFICATIONS, AS I HAVE USED THOSE
TERMS HERE.  SEE, E.G., MY DISCUSSION IN PART IV-C OF THIS OPINION OF
THE DIVERGENT WAYS MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968), AND
GROSSO V. UNITED STATES, 390 U.S. 62 (1968), BEAR ON THE PROBLEMS
RAISED BY TODAY'S FIFTH AMENDMENT CASES. 

/8/  SEE, E.G., EX PARTE SIEBOLD, 100 U.S. 371 (1880); BROWLEY V.
CHRISTENSEN, 137 U.S. 86 (1890); YICK WO V. HOPKINS, 118 U.S. 356
(1886).  AND SEE CASES COLLECTED IN AMSTERDAM, SEARCH, SEIZURE, AND
THE DISCUSSION THEREIN OF THE FINALITY IMPLICATIONS SUCH INSTANCES
PRESENT. 

/9/  FOR EXAMPLE, THOUGH CORRECT IN ITS RESULT, I AM NOW OF THE VIEW
THAT LINKLETTER WOULD HAVE BEEN BETTER DECIDED HAD IT SIMPLY HELD THAT
FEDERAL HABEAS CORPUS DOES NOT LIE FOR CLAIMED ERRORS IN THE
INTRODUCTION OF ILLEGALLY SEIZED EVIDENCE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING IN THE JUDGMENT. 

THREE YEARS AGO WE HELD THAT THE FEDERAL WAGERING TAX STATUTES, 26
U.S.C. 4401 ET SEQ., SUBJECTED THOSE TO WHOM THEY APPLIED TO SUCH A
REAL AND SUBSTANTIAL DANGER OF SELF-INCRIMINATION THAT THOSE STATUTES
COULD "NOT BE EMPLOYED TO PUNISH CRIMINALLY THOSE PERSONS WHO HAVE
DEFENDED A FAILURE TO COMPLY WITH THEIR REQUIREMENTS WITH A PROPER
ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION."  MARCHETTI V.
UNITED STATES, 390 U.S. 39, 42 (1968); GROSSO V. UNITED STATES, 390
U.S. 62 (1968).  THIS CASE PRESENTS THE QUESTION WHAT, IF ANY, USE THE
GOVERNMENT IS ENTITLED TO MAKE OF WAGERING EXCISE TAX RETURNS, FILED
PURSUANT TO THE STATUTORY SCHEME, IN A PROSECUTION FOR INCOME TAX
EVASION.  SINCE I BELIEVE THE FIFTH AMENDMENT DOES NOT PREVENT THE USE
OF SUCH RETURNS TO SHOW A LIKELY SOURCE OF UNREPORTED INCOME IN A
CRIMINAL PROSECUTION FOR INCOME TAX EVASION, I CONCUR IN THE JUDGMENT
OF THE COURT.  /1/

        I 

THE RELEVANT FACTS MAY BE BRIEFLY STATED.  AS REQUIRED BY STATUTE,
PETITIONER FROM 1956 THROUGH 1960 FILED MONTHLY WAGERING EXCISE TAX
RETURNS SHOWING HIS NAME, ADDRESS, AND THE GROSS AMOUNT OF WAGERS
ACCEPTED BY HIM DURING THE MONTH IN QUESTION.  /2/  HE WAS SUBSEQUENTLY
INDICTED FOR WILLFULLY ATTEMPTING TO EVADE PAYMENT OF HIS INCOME TAXES
FOR THOSE YEARS.  26 U.S.C. 7201.  AT TRIAL, THE GOVERNMENT USED THE
WAGERING TAX RETURNS TO SHOW THAT THE GROSS AMOUNT OF WAGERS REPORTED,
LESS THE EXPENSES OF PETITIONER'S BUSINESS AS REPORTED ON HIS ANNUAL
INCOME TAX RETURNS, WAS GREATER THAN THE PROFITS FROM GAMBLING REPORTED
ON THOSE SAME ANNUAL RETURNS.  THE COURT OF APPEALS AFFIRMED OVER
PETITIONER'S CLAIM THAT THE RETURNS WERE INFLAMMATORY, PREJUDICIAL, AND
IRRELEVANT.  345 F.2D 499 (CA7 1965).  AFTER OUR DECISIONS IN MARCHETTI
V. UNITED STATES, SUPRA, AND GROSSO V. UNITED STATES, SUPRA, PETITIONER
FILED AN APPLICATION FOR POSTCONVICTION RELIEF ON THE GROUND THAT USE
OF THE WAGERING TAX RETURNS WAS BARRED BY THE FIFTH AMENDMENT.  THE
APPLICATION WAS DENIED BY THE DISTRICT COURT IN AN UNREPORTED OPINION,
AND THE DENIAL WAS AFFIRMED BY THE COURT OF APPEALS.  411 F.2D 504 (CA7
1969).              II 

AT FIRST GLANCE, PETITIONER'S ARGUMENT APPEARS COMEPLLINGLY SIMPLE. 
SINCE THE INFORMATION REQUIRED OF HIM UNDER THE FEDERAL WAGERING TAX
STATUTES PRESENTED A REAL AND SUBSTANTIAL DANGER OF SUBJECTING HIM TO
CRIMINAL PROSECUTION FOR HIS GAMBLING ACTIVITIES, THE GOVERNMENT LACKED
THE POWER TO COMPEL THE INFORMATION ABSENT A WAIVER OF HIS FIFTH
AMENDMENT PRIVILEGE UNLESS IT PROVIDED THE NECESSARY IMMUNITY FROM
PROSECUTION.  MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968); GROSSO V.
UNITED STATES, 390 U.S. 62 (1968); HEIKE V. UNITED STATES, 227 U.S.
131, 143-144 (1913); COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 584-586
(1892).  SINCE PETITIONER FILED THE WAGERING TAX RETURNS UNDER THREAT
OF CRIMINAL PROSECUTION FOR FAILURE TO DO SO, 26 U.S.C. 7203, AND SINCE
HE NEVER KNOWINGLY WAIVED HIS FIFTH AMENDMENT PRIVILEGE, SEE GROSSO V.
UNITED STATES, SUPRA, AT 70-71, HE IS ENTITLED TO THE IMMUNITY REQUIRED
BY THE FIFTH AMENDMENT.  ADAMS V. MARYLAND, 347 U.S. 179, 181 (1954). 
THEREFORE, PETITIONER ARGUES, THE GOVERNMENT WAS FORECLOSED FROM USING
THE INFORMATION PROVIDED BY HIM ON THE WAGERING TAX RETURNS AGAINST HIM
IN A CRIMINAL PROSECUTION FOR EVASION OF THE INCOME TAX. 

BUT IN MARCHETTI AND GROSSO, WE DEALT WITH THE QUESTION WHETHER, IN
LIGHT OF POSSIBLE USES OF TESTIMONIAL EVIDENCE SOUGHT TO BE COMPELLED
OVER A CLAIM OF PRIVILEGE, THE FIFTH AMENDMENT ALLOWS THE INDIVIDUAL
CONCERNED TO WITHHOLD THE EVIDENCE WITHOUT PENALTY.  IN THE PRESENT
CASE, HOWEVER, WE DEAL WITH THE SCOPE OF IMMUNITY REQUIRED WHEN THE
PRIVILEGE IS CLAIMED AND THE EVIDENCE IS NEVERTHELESS COMPELLED.  THIS
DISTINCTION, IN MY VIEW CRITICAL, IS OVERLOOKED BY PETITIONER.  WHERE
TESTIMONY HAS BEEN REFUSED, ADJUDICATION OF NECESSITY MUST TAKE PLACE
IN SOMETHING OF A VACUUM.  ALTHOUGH AN INDIVIDUAL MAY NOT "DRAW A
CONJURER'S CIRCLE AROUND THE WHOLE MATTER" BY REFUSING TO PROVIDE ANY
EXPLANATION WHY THE INFORMATION SOUGHT MIGHT BE INCRIMINATING, UNITED
STATES V. SULLIVAN, 274 U.S. 259, 264 (1927), HE NEED NOT PROVIDE THE
INCRIMINATING EVIDENCE IN ORDER TO DEMONSTRATE THAT THE PRIVILEGE WAS
VALIDLY INVOKED, HOFFMAN V. UNITED STATES, 341 U.S. 479, 486 (1951). 
IN SUCH CIRCUMSTANCE, SANCTIONS MAY BE APPLIED FOR REFUSAL TO TESTIFY
ONLY IF IT IS "'PERFECTLY CLEAR, FROM A CAREFUL CONSIDERATION OF ALL
THE CIRCUMSTANCES IN THE CASE . . . THAT THE ANSWERS) CANNOT POSSIBLY
HAVE (A) TENDENCY' TO INCRIMINATE."  ID., AT 488, QUOTING TEMPLE V.
COMMONWEALTH, 75 VA. 892, 898 (1881) (EMPHASIS IN ORIGINAL). 

BUT WHERE THE INDIVIDUAL HAS SUCCUMBED TO COMPULSION AND PROVIDED
THE INFORMATION SOUGHT, FINER ANALYTICAL TOOLS MAY BE EMPLOYED.  "A
FACTUAL RECORD SHOWING, FOR EXAMPLE, THE SUBSTANCE OF THE INDIVIDUAL'S
COMPELLED TESTIMONY, THE WAY THAT TESTIMONY WAS SUBSEQUENTLY USED BY
THE PROSECUTOR, AND THE CRIME FOR WHICH THE INDIVIDUAL WAS ULTIMATELY
PROSECUTED, PROVIDES IMPORTANT CONSIDERATIONS TO ANCHOR AND INFORM THE
CONSTITUTIONAL JUDGMENT."  PICCIRILLO V. NEW YORK, 400 U.S. 548, 558
(1971) (BRENNAN, J., DISSENTING).  THUS, EVEN WHEN THE PRIVILEGE
AGAINST SELF-INCRIMINATION PERMITS AN INDIVIDUAL TO REFUSE TO ANSWER
QUESTIONS ASKED BY THE GOVERNMENT, IF FALSE ANSWERS ARE GIVEN THE
INDIVIDUAL MAY BE PROSECUTED FOR MAKING FALSE STATEMENTS.  UNITED
STATES V. KNOX, 396 U.S. 77, 80-83 (1969). 

THE FLAW IN PETITIONER'S ARGUMENT LIES IN ITS MISUNDERSTANDING OF
MARCHETTI AND GROSSO AS APPLIED TO A SITUATION WHERE TESTIMONIAL
EVIDENCE HAS BEEN COMPELLED OVER A CLAIM OF PRIVILEGE.  FOR WE DID NOT,
IN THOSE CASES, CASE ANY DOUBT UPON THE POWER OF THE UNITED STATES TO
IMPOSE TAXES ON UNLAWFUL, AS WELL AS ON LAWFUL ACTIVITIES.  390 U.S.,AT
44; SEE UNITED STATES V. SULLIVAN, 274 U.S.,AT 263.  NOR DID WE SUGGEST
THAT THE FIFTH AMENDMENT WOULD MAKE IT IMPOSSIBLE FOR CONGRESS TO
CONSTRUCT AN ENFORCEABLE STATUTORY SCHEME FOR REPORTING BY INDIVIDUALS
OF THEIR ILLICIT GAINS.  SEE 390 U.S.,AT 72 (BRENNAN, J., CONCURRING). 
RATHER, WE NOTED THAT "(THE LAWS OF EVERY STATE, EXCEPT NEVADA, INCLUDE
BROAD PROHIBITIONS AGAINST GAMBLING, WAGERING, AND ASSOCIATED
ACTIVITIES," AND THAT EVEN NEVADA IMPOSED "CRIMINAL PENALTIES UPON
LOTTERIES AND CERTAIN OTHER WAGERING ACTIVITIES TAXABLE UNDER (THE
FEDERAL) STATUTES."  ID., AT 44-46.  WE NOTED THAT FEDERAL STATUTES
PROHIBIT THE USE OF THE MAILS AND OF INTERSTATE COMMERCE FOR MANY
ACTIVITIES ANCILLARY TO WAGERING.  /3/  ID., AT 44.  ON THAT BASIS WE
CONCLUDED THAT "THROUGHOUT THE UNITED STATES, WAGERING IS 'AN AREA
PERMEATED WITH CRIMINAL STATUTES,' AND THOSE ENGAGED IN WAGERING ARE A
GROUP 'INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES.'  ALBERTSON V. SACB,
382 U.S. 70, 79."  MARCHETTI, 390 U.S.,AT 47.  ACCORDINGLY,
REGISTRATION AND PAYMENT OF THE OCCUPATIONAL TAX, OR THE FILING OF A
WAGERING EXCISE TAX RETURN THAT THE GOVERNMENT REQUIRED AS A
PREREQUISITE TO PAYMENT OF THE EXCISE TAX, /4/  WOULD SUBJECT THE
INDIVIDUAL CONCERNED TO "'REAL AND APPRECIABLE,' AND NOT MERELY
'IMAGINARY AND UNSUBSTANTIAL,' HAZARDS OF SELF-INCRIMINATION."  ID., AT
48; GROSSO, 390 U.S.,AT 64-67.  SINCE WE FOUND THE "REQUIRED RECORDS"
DOCTRINE OF SHAPIRO V. UNITED STATES, 335 U.S. 1 (1948), INAPPLICABLE
TO THE STATUTORY REQUIREMENT THAT A GAMBLER ADMIT HIS PRESENT OR FUTURE
INVOLVEMENT IN GAMBLING ACTIVITY, MARCHETTI, 390 U.S.,AT 55-57; GROSSO,
390 U.S.,AT 67-69, WE HELD THAT THE PRIVILEGE AGAINST SELF
INCRIMINATION WAS AVAILABLE TO THE PETITIONERS AS A DEFENSE TO
PROSECUTION FOR FAILURE TO REGISTER FOR, REPORT, OR PAY THE FEDERAL
WAGERING TAXES.  /5/ 

HAD THE PRESENT CASE ARISEN IN THE CONTEXT OF A FEDERAL
INVESTIGATION DESIGNED SIMPLY TO UNCOVER EVIDENCE OF CRIMINAL ACTIVITY,
WE WOULD NEED TO GO NO FURTHER.  /6/  IN SUCH A SITUATION, PETITIONER
WOULD BE ENTITLED TO "ABSOLUTE IMMUNITY . . . FROM PROSECUTION (UNDER
FEDERAL LAWS) FOR ANY TRANSACTION REVEALED IN THAT TESTIMONY." 
PICCIRILLO V. NEW YORK, 400 U.S.,AT 562 (BRENNAN, J., DISSENTING);
COUNSELMAN V. HITCHCOCK, 142 U.S.,AT 584-586.  BUT ALTHOUGH WE
RECOGNIZED IN MARCHETTI THAT "CONGRESS INTENDED INFORMATION OBTAINED AS
A CONSEQUENCE OF REGISTRATION AND PAYMENT OF THE (GAMBLING)
OCCUPATIONAL TAX TO BE PROVIDED TO INTERESTED PROSECUTING AUTHORITIES,"
MARCHETTI, 390 U.S.,AT 58-59, /7/  WE NEVERTHELESS CONCLUDED THAT THE
"UNITED STATES' PRINCIPAL INTEREST IS EVIDENTLY THE COLLECTION OF
REVENUE, AND NOT THE PUNISHMENT OF GAMBLERS."  ID., AT 57; SEE UNITED
STATES V. CALAMARO, 354 U.S. 351, 358 (1957). 

THIS DUAL PURPOSE IS SIGNIFICANT HERE.  FOR WHILE THE GOVERNMENT MAY
NOT UNDERTAKE THE PROSECUTION OF CRIME BY INQUIRING OF INDIVIDUALS WHAT
CRIMINAL ACTS THEY HAVE LATELY PLANNED OR COMMITTED, IT MAY SURROUND A
TAXING OR REGULATORY SCHEME WITH REPORTING REQUIREMENTS DESIGNED TO
INSURE COMPLIANCE WITH THE SCHEME.  SEE MARCHETTI, 390 U.S.,AT 44, 60;
GROSSO, 390 U.S.,AT 72-74 (CONCURRING OPINION).  IN THE LATTER
SITUATION, THE PRIVILEGE MAY NOT BE CLAIMED IF THE DANGER OF
INCRIMINATION IS ONLY THAT THE INFORMATION REQUIRED MAY SHOW A
VIOLATION OF THE TAXING OR REGULATORY SCHEME.  THUS IN SHAPIRO V.
UNITED STATES, 335 U.S. 1 (1948), WE UPHELD A CONVICTION BASED UPON
RECORDS OF SALES PROVIDED UNDER COMPULSION OF A REGULATION UNDER THE
EMERGENCY PRICE CONTROL ACT, 56 STAT. 23.  THE PRIVILEGE HAD BEEN
CLAIMED ON THE BASIS THAT THE RECORDS WOULD (AS THEY DID) PROVIDE
EVIDENCE OF A VIOLATION OF THE ACT.  WE REJECTED THE CLAIM, REASONING
THAT THE GOVERNMENT HAS POWER TO COMPEL "'SUITABLE INFORMATION OF
TRANSACTIONS WHICH ARE THE APPROPRIATE SUBJECTS OF GOVERNMENTAL
REGULATION AND THE ENFORCEMENT OF RESTRICTIONS VALIDLY ESTABLISHED.'" 
ID., AT 33.  /8/  AND IN UNITED STATES V. SULLIVAN, 274 U.S. 259
(1927), WE REJECTED A CLAIM THAT THE PRIVILEGE AGAINST SELF
INCRIMINATION ALLOWED AN INDIVIDUAL WHOSE INCOME WAS EARNED IN CRIME TO
FILE NO FORM OF INCOME TAX RETURN WHATSOEVER.  ALTHOUGH DUBIOUS, WE
NOTED THE POSSIBILITY THAT THE PRIVILEGE COULD BE CLAIMED TO EXCUSE
REPORTING THE AMOUNT OF INCOME EARNED BECAUSE THAT ALONE WOULD DISCLOSE
THE CRIMINAL ACTIVITIES THAT HAD PRODUCED THE INCOME.  ID., AT 263
264.  BUT NEITHER IN SULLIVAN NOR IN ANY OTHER OF OUR CASES IS THERE
THE SLIGHTEST SUGGESTION THAT AN INDIVIDUAL MAY REFUSE TO DISCLOSE THE
INCOME HE HAS EARNED SOLELY BECAUSE SUCH DISCLOSURE WILL INDICATE A
FAILURE TO PAY THE TAXES IMPOSED ON THAT INCOME. 

OF COURSE, THE GOVERNMENT MAY NOT INSULATE INQUIRIES DESIGNED TO
PRODUCE INCRIMINATING INFORMATION MERELY BY LABELING THE INQUIRY A
NECESSARY INCIDENT OF A REGULATORY SCHEME.  WHERE THE ESSENCE OF A
STATUTORY SCHEME IS TO FORBID A GIVEN CLASS OF ACTIVITIES, IT MAY NOT
BE ENFORCED BY REQUIRING INDIVIDUALS TO REPORT THEIR VIOLATIONS.  SEE
MARCHETTI, SUPRA; HAYNES V. UNITED STATES, 390 U.S. 85 (1968);
ALBERTSON V. SACB, 382 U.S. 70 (1965).  BUT WHERE THE STATUTORY SCHEME
IS NOT DESIGNED TO FORBID CERTAIN ACTS, BUT ONLY TO REQUIRE THAT THEY
BE DONE IN A CERTAIN WAY, THE GOVERNMENT MAY ENFORCE ITS REQUIREMENTS
BY A COMPULSORY SCHEME OF REPORTING, DIRECTED AT ALL WHO ENGAGE IN
THOSE ACTIVITIES, AND NOT ON ITS FACE DESIGNED SIMPLY TO ELICIT
INCRIMINATING INFORMATION.  SHAPIRO V. UNITED STATES, SUPRA; SEE
ALBERTSON V. SACB, SUPRA, AT 77-80. 

VIEWED IN THIS LIGHT, THEN, MARCHETTI AND GROSSO ARE THE OUTGROWTH
OF TWO PRINCIPLES INAPPLICABLE TO THE PROBLEM AT HAND.  THE FIRST IS
THAT WHEN A GIVEN CLASS OF ACTIVITIES IS, IN THE MAIN, MADE CRIMINAL BY
EITHER STATE OR FEDERAL LAW, AN INDIVIDUAL MAY NOT BE COMPELLED TO
DISCLOSE WHETHER HE ENGAGES IN ACTIVITIES WITHIN THE CLASS UNLESS HIS
DISCLOSURE IS COMPENSATED BY THE REQUISITE GRANT OF IMMUNITY.  /9/
MARCHETTI, SUPRA; HAYNES V. UNITED STATES, SUPRA; ALBERTSON V. SACB,
SUPRA.  THE SECOND IS THAT SUCH INDIVIDUALS MAY LIKEWISE NOT BE
COMPELLED, ABSENT SUFFICIENT IMMUNITY, TO DISCLOSE THE DETAILS OF THEIR
ACTIVITIES WITHIN SUCH A SUSPECT CLASS:  FOR IF THE MERE ADMISSION OF
ENGAGING IN ANY OF A CLASS OF ACTIVITIES IS SUFFICIENTLY LIKELY TO LEAD
TO CRIMINAL PROSECUTION THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION
MAY BE INVOKED, ADMISSION OF THE DETAILS OF THESE ACTIVITIES IS A
FORTIORI LIKELY TO LEAD TO INCRIMINATION.  GROSSO, SUPRA. 

NEITHER OF THESE PRINCIPLES, HOWEVER, CONTROLS THE CASE AT HAND. 
THE RELEVANT CLASS OF ACTIVITIES "PERMEATED WITH CRIMINAL STATUTES,"
ALBERTSON V. SACB, 382 U.S.,AT 79, IS THE CLASS OF ACTIVITIES RELATED
TO GAMBLING.  BUT THIS CASE DOES NOT INVOLVE A PROSECUTION FOR GAMBLING
OR RELATED ACTIVITES.  IT INVOLVES A PROSECUTION FOR INCOME TAX
EVASION, BY USE OF INFORMATION COMPELLED PURSUANT TO A SCHEME REQUIRING
ALL THOSE WHO ENGAGE IN THE BUSINESS OF ACCEPTING WAGERS /10/  TO
REPORT THEIR INCOME TWICE.  FOR THE REASONS DISCUSSED ABOVE, THE
GOVERNMENT MAY VALIDLY ENFORCE THE TAX LAWS BY A SCHEME OF REQUIRED
REPORTS, DIRECTED AT ALL PERSONS ENGAGING IN CERTAIN TYPES OF ACTIVITY,
AND REQUIRING THEM TO REPORT THE AMOUNT OF THEIR INCOME SO THAT THE
GOVERNMENT MAY INSURE THAT THE REQUISITE TAXES HAVE BEEN PAID.  IF SUCH
A REPORTING REQUIREMENT RAISES A SUBSTANTIAL DANGER OF INCRIMINATION
UNDER STATE OR FEDERAL STATUTES MAKING CRIMINAL THE ACTIVITY THAT IS
BEING TAXES, AN INDIVIDUAL MAY, OF COURSE, ASSERT THE PRIVILEGE AGAINST
SELF-INCRIMINATION AND REFUSE TO DISCLOSE THE INFORMATION SOUGHT.  WE
SO HELD IN MARCHETTI AND GROSSO.  AND IF THE INFORMATION HAS BEEN
COMPELLED OVER A CLAIM OF PRIVILEGE, APPLICATION OF THOSE CASES
REQUIRES THAT THE INDIVIDUAL BE PROTECTED AGAINST THE USE OF THAT
INFORMATION IN STATE PROSECUTIONS UNDER THE STATUTES MAKING CRIMINAL
THE TAXED ACTIVITY, AND TO COMPLETE IMMUNITY FROM PROSECUTION UNDER
FEDERAL STATUTES OF LIKE KIND.  PICCIRILLO V. NEW YORK, 400 U.S.,AT 561
574 (BRENNAN, J., DISSENTING); ADAMS V. MARYLAND, 347 U.S.,AT 181;
COUNSELMAN V. HITCHCOCK, 142 U.S.,AT 584-586; CF. MURPHY V. WATERFRONT
COMM'N, 378 7.S. 52, 79, AND N. 18 (1964).  HE IS, IN SHORT, ENTITLED
TO THE PROTECTION REQUIRED BY THE FIFTH AMENDMENT.  BUT HERE THE
GOVERNMENT WAS ENTITLED TO DEMAND THE INFORMATION THAT PETITIONER
SUPPLIED-- HIS GROSS INCOME FROM WAGERING-- IN ORDER TO ENFORCE THE TAX
LAWS.  PETITIONER WAS ENTITLED TO CLAIM THE PRIVILEGE ONLY BECAUSE OF
THE POSSIBILITY OF PROSECUTION UNDER STATE OR FEDERAL GAMBLING LAWS. 
NO SUCH PROSECUTION IS INVOLVED HERE.  "ONCE THE REASON FOR THE
PRIVILEGE CEASES, THE PRIVILEGE CEASES."  ULLMANN V. UNITED STATES, 350
U.S. 422, 439 (1956).  SINCE THE UNITED STATES WAS ENTITLED TO DEMAND
THE INFORMATION AT ISSUE HERE FOR THE PURPOSE TO WHICH IT WAS
EVENTUALLY PUT, THE DANGER THAT PETITIONER'S DISCLOSURES MIGHT ALSO
HAVE BEEN IMPERMISSIBLY USED DOES NOT PREVENT THEIR PRESENT, LEGITIMATE
USE EVEN THOUGH THE DANGER OF IMPERMISSIBLE USE WOULD JUSTIFY REFUSAL
TO PROVIDE THE INFORMATION AT ALL.  /11/

        III 

FINALLY, OUR DECISIONS IN BOTH MARCHETTI AND GROSSO NOT TO ATTEMPT
TO SALVAGE THE STATUTORY SCHEME BY IMPOSING USE USE RESTRICTIONS DO NOT
REQUIRE THAT, ONCE EVIDENCE HAS ACTUALLY BEEN COMPELLED, WE REFUSE TO
PROTECT A VALID GOVERNMENTAL INTEREST BY RESTRICTING USE OF THAT
EVIDENCE ANY MORE THAN IS REQUIRED BY THE FIFTH AMENDMENT.  FOR
ALTHOUGH WE RECOGNIZED IN MARCHETTI THAT "THE IMPOSITION OF USE
RESTRICTIONS WOULD DIRECTLY PRECLUDE EFFECTUATION OF A SIGNIFICANT
ELEMENT OF CONGRESS' PURPOSES IN ADOPTING THE WAGERING TAXES," 390
U.S.,AT 59, THE PRIMARY BASIS FOR OUR REFUSAL TO IMPOSE SUCH
RESTRICTIONS WAS THAT "THE IMPOSITION OF SUCH RESTRICTIONS WOULD
NECESSARILY OBLIGE STATE PROSECUTING AUTHORITIES TO ESTABLISH IN EACH
CASE THAT THEIR EVIDENCE WAS UNTAINTED BY ANY CONNECTION WITH
INFORMATION OBTAINED AS A CONSEQUENCE OF THE WAGERING TAXES; THE
FEDERAL REQUIREMENTS WOULD THUS BE PROTECTED ONLY AT THE COST OF
HAMPERING, PERHAPS SERIOUSLY, ENFORCEMENT OF STATE PROHIBITIONS AGAINST
GAMBLING."  IBID.  /12/  SINCE A BALANCE BETWEEN EFFECTIVE STATE
ENFORCEMENT OF GAMBLING LAWS AND THE INTERESTS OF THE FEDERAL TREASURY
WAS ONE TO BE STRUCK BY CONGRESS, AND NOT THIS COURT, WE DECLINED TO
IMPOSE THE PROPOSED RESTRICTIONS.  ID., AT 59-60.  AND IN GROSSO, WE
MERELY NOTED THAT IT WOULD BE "INAPPROPRIATE TO IMPOSE SUCH
RESTRICTIONS UPON ONE PORTION OF A STATUTORY SYSTEM, WHEN WE HAVE
CONCLUDED THAT IT WOULD BE IMPROPER, FOR REASONS DISCUSSED IN
MARCHETTI, TO DO SO UPON 'AN INTEGRAL PART' OF THE SAME SYSTEM."  390
U.S.,AT 69.  ONCE AGAIN, HOWEVER, DIFFERENT CONSIDERATIONS APPLY WHEN
THE QUESTION IS NOT WHETHER INFORMATION MAY BE COMPELLED BUT RATHER TO
WHAT USES COMPELLED INFORMATION MAY BE PUT.  ONCE THE RETURN HAS BEEN
FILED, PROSECUTION UNDER STATE GAMBLING LAWS CAN TAKE PLACE ONLY IF THE
STATE CAN DESMONSTRATE THAT ITS EVIDENCE IS NOT TAINTED BY INFORMATION
DERIVED FROM THE INCRIMINATORY ASPECTS OF THE RETURN.  SINCE DISCLOSURE
ONCE MADE MAY NEVER BE COMPLETELY UNDONE, THIS BURDEN MUST BE BORNE BY
THE STATE REGARDLESS OF WHAT ADDITIONAL RESTRICTIONS ARE IMPOSED UPON
USE OF THE RETURN.  ACCORDINGLY, THE CONSIDERATIONS THAT LED US TO
DECLINE THE IMPOSITION OF USE RESTRICTIONS FOR THE FUTURE IN MARCHETTI
AND GROSSO ARE NOT COMPELLING IN SITUATIONS WHERE THE INCRIMINATING
INFORMATION HAS ALREADY BEEN DISCLOSED.  PETITIONER IS THEREFORE
ENTITLED TO THE IMMUNITY REQUIRED BY THE FIFTH AMENDMENT, AND TO NO
MORE.  SINCE I BELIEVE THE AMENDMENT IS NO BAR TO THE USE TO WHICH HIS
WAGERING TAX RETURNS WERE PUT, I CONCUR IN THE JUDGMENT OF THE COURT. 

/1/  THIS VIEW OF THE CASE MAKES IT UNNECESSARY FOR ME TO DECIDE
WHETHER PETITIONER'S CONVICTION SHOULD BE EXAMINED WITHOUT REGARD TO
THE STANDARDS EMBODIED IN MARCHETTI AND GROSSO.  THE BALANCE OF THIS
OPINION IS WRITTEN ON THE ASSUMPTION THAT MARCHETTI AND GROSSO ARE
APPLICABLE. 

/2/  SEE 26 U.S.C. 6011(A); TREAS. REG. SEC. 44.6011(A)-1(A), 26 CFR
44.6011(A)-1(A). 

/3/  SEE 18 U.S.C. 1084 (INTERSTATE TRANSMISSION OF WAGERING
INFORMATION), SECS. 1301-1304 (CONDUCT OF LOTTERIES BY MAILS OR
BROADCASTING), SEC. 1952 (INTERSTATE TRAVEL IN AID OF, INTER ALIA,
GAMBLING), SEC. 1953 (INTERSTATE TRANSPORTATION OF WAGERING
PARAPHERNALIA). 

/4/  WE WERE INFORMED BY THE UNITED STATES IN GROSSO THAT THE
WAGERING EXCISE TAX WOULD NOT BE ACCEPTED UNLESS ACCOMPANIED BY THE
REQUIRED RETURN.  390 U.S.,AT 65. 

/5/  IN ADDITION, WE DECLINED IN BOTH MARCHETTI AND GROSSO THE
GOVERNMENT'S INVITATION TO SALVAGE THE STATUTORY SCHEME BY IMPOSING USE
RESTRICTIONS ON THE INFORMATION REQUIRED.  MARCHETTI, 390 U.S.,AT 58
60; GROSSO, 390 U.S.,AT 69.  THE RELEVANCE OF THIS TO THE ISSUE BEFORE
US IS DISCUSSED INFRA, AT 711-713.  FOR THE MOMENT IT IS SUFFICIENT TO
NOTE THAT EVEN THE IMPOSITION OF USE RESTRICTIONS COULD NOT HAVE SAVED
THE CONVICTIONS AT ISSUE IN THOSE CASES, FOR THE PETITIONERS OBVIOUSLY
HAD NO WAY OF KNOWING, WHEN THEY FAILED TO REGISTER AND FILE THE
REQUIRED FORMS, THAT USE RESTRICTIONS MIGHT BE IMPOSED.  SEE MURPHY V.
WATEFRONT COMM'N, 378 U.S. 52, 79-80 (1964); REINA V. UNITED STATES,
364 U.S. 507, 514-515 (1960). 

/6/  SEE N. 1, SUPRA. 

/7/  IN GROSSO, WE REMARKED THAT "ALTHOUGH THERE IS NO STATUTORY
INSTRUCTION, AS THERE IS FOR THE OCCUPATIONAL TAX, THAT STATE AND LOCAL
PROSECUTING OFFICERS BE PROVIDED LISTINGS OF THOSE WHO HAVE PAID THE
EXCISE TAX, NEITHER HAS CONGRESS IMPOSED EXPLICIT RESTRICTIONS UPON THE
USE OF INFORMATION OBTAINED AS A CONSEQUENCE OF PAYMENT OF THE TAX,"
AND THAT THE REVENUE SERVICE IN FACT DISSEMINATED SUCH INFORMATION TO
"INTERESTED PROSECUTING AUTHORITIES."  GROSSO, 390 U.S.,AT 66. 

/8/  THE REGULATION UPHELD IN SHAPIRO REQUIRED ONLY THE KEEPING OF
RECORDS, AND NOT THEIR REPORTING; THE INFORMATION THERE WAS COMPELLED
PURSUANT TO AN ADMINISTRATIVE SUBPOENA.  BUT AS WE NOTED IN MARCHETTI,
THIS SITUATION IS CONSTITUTIONALLY INDISTINGUISHABLE FROM A SIMPLE
REPORTING REQUIREMENT.  390 U.S.,AT 56 N. 14. 

/9/  SINCE THE STATUTORY SCHEME IN MARCHETTI AND GROSSO PROVIDED NO
IMMUNITY WHATSOEVER, AND SINCE THOSE CASES AROSE IN THE CONTEXT OF AN
ATTEMPT BY THE GOVERNMENT TO PUNISH INDIVIDUALS FOR FAILURE TO DISCLOSE
THE INFORMATION REQURESTED, WE HAD NO OCCASION THERE TO DETERMINE THE
PRECISE SCOPE OF THE IMMUNITY THAT WOULD BE REQUIRED TO DISPLACE THE
PRIVILEGE. 

/10/  THE FEW EXCEPTIONS TO THIS REQUIREMENT ARE NOTED IN MARCHETTI,
390 U.S.,AT 42. 

/11/  THE FILING OF A WAGERING TAX RETURN (OR REGISTRATION AS A
PROSPECTIVE GAMBLER) NECESSARILY INVOLVES AN ADMISSION THAT ONE HAS
ENGAGED IN, OR INTENDS TO ENGAGE IN GAMBLING.  SINCE GAMBLING AND
RELATED ACTIVITIES ARE VERY LIKELY TO BE CRIMINAL UNDER STATE OR
FEDERAL LAW, THE GOVERNMENT LACKS POWER TO COMPEL SUCH AN ADMISSION
ABSENT THE REQUISITE GRANT OF IMMUNITY.  THIS WAS THE QUESTION INVOLVED
IN MARCHETTI AND GROSSO.  BUT WHAT IS RELEVANT TO THE PRESENT CASE IS
NOT WHETHER PETITIONER WAS INVOLVED IN CRIMINAL ACTIVITY, BUT WHETHER
HE PAID THE TAXES IMPOSED ON HIS INCOME.  I HAVE INDICATED ABOVE WHY I
BELIEVE THAT THE GOVERNMENT MAY ENFORCE AN OTHERWISE UNOBJECTIONABLE
SCHEME DESIGNED TO INSURE THAT INDIVIDUALS REPORT THE AMOUNT OF THEIR
INCOME IN ORDER TO ENFORCE THE TAX LAWS.  IT THEREFORE FOLLOWS THAT THE
REGISTRATION AND REPORTING REQUIREMENTS OF THE FEDERAL WAGERING TAX
STATUTES COULD PROPERLY BE ENFORCED UNDER A STATUTE GRANTING THOSE WHO
COMPLIED WITH THE REQUIREMENTS IMMUNITY FROM PROSECUTION UNDER FEDERAL
STATUTES THAT OUTLAW GAMBLING AND RELATED ACTIVITIES, AND PROTECTION
AGAINST THE USE OF INFORMATION CONTAINED IN THE RETURNS IN AID OF
PROSECUTION UNDER STATE OR FEDERAL LAWS MAKING SUCH ACTIVITIES
CRIMINAL. 

/12/  THAT THIS WAS THE PRIMARY BASIS FOR OUR REFUSAL IS EVIDENCED
BY OUR RECOGNITION THAT THE "UNITED STATES' PRINCIPAL INTEREST IS
EVIDENTLY THE COLLECTION OF REVENUE, AND NOT THE PUNISHMENT OF
GAMBLERS."  390 U.S.,AT 57.  ABSENT THE NECESSITY FOR BALANCING STATE
AND FEDERAL INTERESTS, WE WOULD SURELY NOT HAVE CRIPPLED THE PRIMARY
PURPOSE OF THE STATUTES BECAUSE A SECONDARY PURPOSE WAS NECESSARILY
DISABLED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I HAD ASSUMED THAT ALL CRIMINAL AND CIVIL DECISIONS INVOLVING
CONSTITUTIONAL DEFENSES WHICH GO IN FAVOR OF THE DEFENDANT WERE
NECESSARILY RETROACTIVE.  THAT IS TO SAY, THE CONSTITUTION HAS FROM
CHIEF JUSTICE JAY'S TIME BEEN RETROACTIVE, /1/  FOR THERE WERE NO
DECISIONS ON THE POINTS PRIOR THERETO.  MARCHETTI V. UNITED STATES, 390
U.S. 39, AND GROSSO V. UNITED STATES, 390 U.S. 62, EXONERATED
DEFENDANTS WHO, WHEN THEY FAILED TO FILE RETURNS, WERE NOT BY REASON OF
UNITED STATES V. KAHRIGER, 345 U.S. 22, ENTITLED TO A CONSTITUTIONAL
IMMUNITY.  WHY MARCHETTI AND GROSSO ARE ENTITLED TO RELIEF AND MACKEY
IS NOT, IS A MYSTERY.  IT IS SAID THAT MACKEY'S GAMBLING RETURN, "LIKE
PHYSICAL EVIDENCE SEIZED IN VIOLATION OF A NEW INTERPRETATION OF THE
FOURTH AMENDMENT, IS CONCEDEDLY RELEVANT AND PROBATIVE EVEN THOUGH
OBTAINED BY THE GOVERNMENT THROUGH MEANS SINCE DEFINED BY THIS COURT AS
CONSTITUTIONALLY OBJECTIONABLE."  THE SAME COULD BE SAID OF MARCHETTI
AND GROSSO.  YET THEIR CONVICTIONS WERE REVERSED. 

I COULD UNDERSTAND TODAY'S DECISION IF MARCHETTI AND GROSSO HAD
ANNOUNCED ONLY A PROSPECTIVE RULE APPLICABLE TO ALL LIKE DEFENDANTS. 
BUT WHEN THE DEFENDANTS IN THOSE CASES ARE GIVEN THE BENEFIT OF A NEW
CONSTITUTIONAL RULE FORGED BY THE COURT, IT IS NOT COMPREHENSIBLE, IF
JUSTICE RATHER THAN THE FORTUITOUS CIRCUMSTANCES OF THE TIME OF THE
TRIAL IS THE STANDARD, WHY ALL VICTIMS OF THE OLD UNCONSTITUTIONAL RULE
SHOULD NOT BE TREATED EQUALLY. 

I CAN FIND NOTHING IN THE CONSTITUTION THAT AUTHORIZES SOME
CONSTITUTIONAL RULES TO BE PROSPECTIVE AND OTHERS TO BE RETROACTIVE. 
THE MAJORITY OFTEN SAYS THE TEST IS WHETHER A NEW RULE AFFECTS THE
INTEGRITY OF THE FACTFINDING PROCESS, DESIST V. UNITED STATES 394 U.S.
244.  YET EVEN THAT TEST IS NOT APPLIED WHEN THE MAJORITY THINKS THAT
THE IMPACT OF THE NEW RULE, IF APPLIED WITH DUE REGARD TO THE EQUAL
PROTECTION CLAUSE, WOULD BE "DEVASTATING."  TEHAN V. SHOTT, 382 U.S.
406, 419.  THE CONSTITUTION GRANTS THIS COURT NO SUCH LEGISLATIVE
POWERS. 

MY VIEWS HAVE BEEN EXPRESSED IN LINKLETTER V. WALKER, 381 U.S. 618,
640, AND JOHNSON V. NEW JERSEY, 384 U.S. 719, 736, AND I ADHERE TO
THEM.  I WOULD CONTINUE TO CONSTRUE ALL CONSTITUTIONAL SAFEGUARDS
"STRICTLY." 

/1/  SEE CHISHOLM V. GEORGIA, 2 DALL.  419. 

WILLIAM M. WARD ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

MATTHEW J. ZINN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, FRANCIS X. BEYTAGH, JR., BEATRICE ROSENBERG, AND MERVYN
HAMBURG. 
..END :
















UNITED STATES V. U.S. COIN & CURRENCY, 401 U.S. 715 


       UNITED STATES V. UNITED STATES COIN & CURRENCY

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 5.  ARGUED FEBRUARY 25-26, 1969-- REARGUED OCTOBER 20,

           1970-- DECIDED APRIL 5, 1971 


THE UNITED STATES BROUGHT THIS ACTION FOR THE FORFEITURE OF MONEY IN
THE POSSESSION OF ONE ANGELINI WHEN HE WAS ARRESTED FOR FAILING TO
REGISTER AS A GAMBLER AND TO PAY THE GAMBLING TAX REQUIRED BY 26 U.S.C.
4411, 4412, AND 4901.  HAVING FOUND THAT THE MONEY HAD BEEN USED IN
VIOLATION OF THOSE LAWS, THE DISTRICT COURT ORDERED FORFEITURE UNDER 26
U.S.C. 7302.  AFTER THE COURT OF APPEALS AFFIRMED, THE CASE WAS
REMANDED FOR FURTHER CONSIDERATION IN THE LIGHT OF THIS COURT'S
SUBSEQUENT DECISIONS IN MARCHETTI V. UNITED STATES, 390 U.S. 39, AND
GROSSO V. UNITED STATES, 390 U.S. 62, WHICH HELD THAT GAMBLERS HAD THE
FIFTH AMENDMENT RIGHT TO REMAIN SILENT DESPITE THE STATUTORY
REQUIREMENT THAT THEY SUBMIT REPORTS THAT COULD INCRIMINATE THEM.  THE
COURT OF APPEALS THEREAFTER ORDERED THE MONEY'S RETURN, HAVING
CONCLUDED THAT ANGELINI COULD ASSERT HIS FIFTH AMENDMENT PRIVILEGE. 
THE GOVERNMENT CONTENDS THAT (1) THE MARCHETTI-GROSSO RATIONALE IS
INAPPLICABLE TO SEC. 7302 FORFEITURE PROCEEDINGS BECAUSE UNDER THAT
PROVISION "ANY PROPERTY INTENDED FOR USE IN VIOLATING THE . . .
INTERNAL REVENUE LAWS" IS SUBJECT TO FORFEITURE REGARDLESS OF THE
PROPERTY OWNER'S GUILT, AND (2) MARCHETTI AND GROSSO SHOULD NOT BE
GIVEN RETROACTIVE EFFECT.  HELD: 

1.  THE FIFTH AMENDMENT PRIVILEGE MAY PROPERLY BE INVOKED IN THIS
CASE SINCE THE FORFEITURE STATUTES, WHEN VIEWED IN THEIR ENTIRETY, ARE
INTENDED TO PENALIZE ONLY PERSONS SIGNIFICANTLY INVOLVED IN A CRIMINAL
ENTERPRISE.  PP. 717-722. 

2.  THE MARCHETTI-GROSSO RULE HAS RETROACTIVE EFFECT IN A FORFEITURE
PROCEEDING UNDER SEC. 7302.  PP. 722-724. 

393 F.2D 499, AFFIRMED. 

HARLAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BLACK,
DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED.  BLACK, J., FILED A
CONCURRING STATEMENT, POST, P. 724.  BRENNAN, J., FILED A CONCURRING
OPINION, POST, P. 724.  WHITE, J., FILED A DISSENTING OPINION, IN WHICH
BURGER, C.J., AND STEWART AND BLACKMUN, JJ., JOINED, POST, P. 730. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

AFTER DONALD J. ANGELINI HAD BEEN CONVICTED OF FAILING TO REGISTER AS
A GAMBLER AND TO PAY THE RELATED GAMBLING TAX REQUIRED BY FEDERAL LAW,
26 U.S.C. 4411, 4412, 4901, THE UNITED STATES INSTITUTED THE FORFEITURE
PROCEEDING TO OBTAIN $8,674 WHICH ANGELINI HAD IN HIS POSSESSION AT THE
TIME OF HIS ARREST.  THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS FOUND THAT THE MONEY WAS BEING USED IN A BOOKMAKING OPERATION
IN VIOLATION OF THESE INTERNAL REVENUE LAWS AND ORDERED FORFEITURE
UNDER 26 U.S.C. 7302 WHICH PROVIDES: 

     "IT SHALL BE UNLAWFUL TO HAVE OR POSSESS ANY PROPERTY INTENDED

  FOR USE IN VIOLATING THE PROVISIONS OF THE INTERNAL REVENUE LAWS

  . . . AND NO PROPERTY RIGHTS SHALL EXIST IN ANY SUCH PROPERTY . .

  . . " 

WHEN THE COURT OF APPEALS AFFIRMED, WE GRANTED CERTIORARI, SUB NOM.
ANGELINI V. UNITED STATES, 390 U.S. 204, AND REMANDED THE CASE FOR
FURTHER CONSIDERATION IN THE LIGHT OF OUR DECISIONS IN MARCHETTI V.
UNITED STATES, 390 U.S. 39 (1968), AND GROSSO V. UNITED STATES, 390
U.S. 62 (1968), WHICH PRECLUDED THE CRIMINAL CONVICTION OF GAMBLERS WHO
PROPERLY ASSERT THEIR PRIVILEGE AGAINST SELF-INCRIMINATION AS A GROUND
FOR THEIR FAILURE TO COMPLY WITH THESE ASPECTS OF THE GAMBLING TAX
LAW.  A UNANIMOUS PANEL OF THE COURT OF APPEALS CONCLUDED THAT ANGELINI
MIGHT PROPERLY ASSERT HIS FIFTH AMENDMENT PRIVILEGE IN THIS FORFEITURE
PROCEEDING AND ORDERED THE RETURN OF THE SEIZED MONEY.  393 F.2D 499
(1968).  SINCE THE COURT OF APPEALS FOR THE SIXTH CIRCUIT SUBSEQUENTLY
CAME TO THE OPPOSITE CONCLUSION, /1/  WE GRANTED THE GOVERNMENT'S
PETITION FOR CERTIORARI IN THE PRESENT CASE, 393 U.S. 949 (1968), IN
ORDER TO RESOLVE THE CONFLICT.  THE CASE WAS FIRST ARGUED AT THE 1968
TERM AND REARGUED AT THE CURRENT TERM.  WE NOW AFFIRM THE DECISION
BELOW. 

        I 

THE GOVERNMENT'S PRINCIPAL ARGUMENT TURNS UPON AN EXCEEDINGLY NARROW
CONSTRUCTION OF OUR DECISIONS IN MARCHETTI AND GROSSO.  IN THOSE CASES,
WE TOOK PAINS TO MAKE IT CLEAR THAT THE COURT IN NO WAY DOUBTED THE
GOVERNMENT'S POWER TO ASSESS AND COLLECT TAXES ON UNLAWFUL GAMBLING
ACTIVITIES.  IT WAS ONLY THE METHOD CONGRESS HAD ADOPTED IN COLLECTING
THE TAX THAT RAISED THE FIFTH AMENDMENT QUESTION.  THE STATUTE
COMMANDED THAT GAMBLERS SUBMIT SPECIAL REGISTRATION STATEMENTS AND TAX
RETURNS THAT CONTAINED INFORMATION WHICH COULD WELL INCRIMINATE THEM IN
MANY CIRCUMSTANCES.  BECAUSE THE RISK OF SELF-INCRIMINATION WAS
SUBSTANTIAL, WE HELD THAT A FIFTH AMENDMENT PRIVILEGE COULD BE RAISED
AS A DEFENSE TO A CRIMINAL PROSECUTION CHARGING FAILURE TO FILE THE
REQUIRED FORMS.  SINCE IT WAS ONLY THIS METHOD OF TAX COLLECTION WHICH
WAS SUBJECT TO CONSTITUTIONAL OBJECTION, WE INDICATED THAT THE
GOVERNMENT REMAINED FREE TO COLLECT TAXES DUE UNDER THE STATUTE SO LONG
AS IT DID NOT ATTEMPT TO PUNISH THE TAXPAYER FOR HIS FAILURE TO FILE
THE REQUIRED DOCUMENTS. 

THE GOVERNMENT NOW RELIES HEAVILY ON THE FACT THAT MARCHETTI AND
GROSSO ONLY HELD THAT "A CLAIM OF PRIVILEGE PRECLUDES A CRIMINAL
CONVICTIONPREMISED ON FAILURE TO PAY THE TAX."  /2/  IT ARGUES THAT
JUST AS IT MAY COLLECT TAXES IN A CIVIL ACTION, THE GOVERNMENT MAY ALSO
INITIATE FORFEITURE PROCEEDINGS-- WHICH ARE ALSO FORMALLY CIVIL IN
NATURE-- WITHOUT OFFENDING MARCHETTI AND GROSSO.  BUT AS BOYD V. UNITED
STATES, 116 U.S. 616, 634 (1886), MAKES CLEAR, "PROCEEDINGS INSTITUTED
FOR THE PURPOSE OF DECLARING THE FORFEITURE OF A MAN'S PROPERTY BY
REASON OF OFFENCES COMMITTED BY HIM, THOUGH THEY MAY BE CIVIL IN FORM,
ARE IN THEIR NATURE CRIMINAL" FOR FIFTH AMENDMENT PURPOSES.  FROM THE
RELEVANT CONSTITUTIONAL STANDPOINT THERE IS NO DIFFERENCE BETWEEN A MAN
WHO "FORFEITS" $8,674 AS A RESULT OF THE SAME COURSE OF CONDUCT.  IN
BOTH INSTANCES, MONEY LIABILITY IS PREDICATED UPON A FINDING OF THE
OWNER'S WRONGFUL CONDUCT; IN BOTH CASES, THE FIFTH AMENDMENT APPLIES
WITH EQUAL FORCE.  SEE ALSO ONE 1958 PLYMOUTH SEDAN V. PENNSYLVANIA,
380 U.S. 693, 700 (1965). 

THE GOVERNMENT DOES NOT SERIOUSLY CONTEND OTHERWISE.  INSTEAD IT
PLACES GREAT EMPHASIS ON THE PECULIAR NATURE OF THE PROCEEDINGS
AUTHORIZED UNDER SEC. 7302.  BOYD, WE ARE TOLD, WAS ONLY CONCERNED WITH
FORFEITURES WHICH ARE IMPOSED "BY REASON OF OFFENCES COMMITTED BY" THE
OWNER.  116 U.S.,AT 634.  IN THE PRESENT ACTION, HOWEVER, THE
GOVERNMENT CONTENDS THAT THE GUILT OF THE OWNER OF THE MONEY IS
IRRELEVANT.  THE FORFEITURE STATUTE, IT IS NOTED, SIMPLY AUTHORIZES
CONFISCATION OF "ANY PROPERTY INTENDED FOR USE IN VIOLATING THE
PROVISIONS OF THE INTERNAL REVENUE LAWS"; IT DOES NOT REQUIRE THAT
ANGELINI BE THE ONE WHO POSSESSED THE REQUISITE INTENTION.  IF, FOR
EXAMPLE, ANGELINI HAD LEFT THE MONEY IN A BOOKMAKER'S OFFICE WITHOUT
HAVING ANY REASON TO KNOW THAT ILLEGAL ACTIVITIES WOULD TAKE PLACE
THERE, THE GOVERNMENT READS THE STATUTE AS PERMITTING CONFISCATION IF
IT CAN BE SHOWN THAT THE BOOKMAKER USED ANGELINI'S MONEY IN ILLEGAL
WAGERING ACTIVITIES.  SINCE, UNDER THE GOVERNMENT'S VIEW, THE GUILT OR
INNOCENCE OF THE ACTUAL OWNER OF THE MONEY IS IRRELEVANT IN AN ACTION
UNDER SEC. 7302, THE GOVERNMENT URGES THAT THE PRESENT FORFEITURE
SHOULD NOT BE CONSIDERED THE RESULT OF A "CRIMINAL"  PROCEEDING FOR
FIFTH AMENDMENT PURPOSES. 

IF WE WERE WRITING ON A CLEAN SLATE, THIS CLAIM THAT SEC. 7302
OPERATES TO DEPRIVE TOTALLY INNOCENT PEOPLE OF THEIR PROPERTY WOULD
HARDLY BE COMPELLING.  ALTHOUGH IT IS TRUE THAT THE STATUTE DOES NOT
SPECIFICALLY STATE THAT THE PROPERTY SHALL BE SEIZED ONLY IF ITS OWNER
SIGNIFICANTLY PARTICIPATED IN THE CRIMINAL ENTERPRISE, WE WOULD NOT
READILY INFER THAT CONGRESS INTENDED A DIFFERENT MEANING.  CF.
MORISSETTE V. UNITED STATES, 342 U.S. 246 (1952).  HOWEVER, AS OUR PAST
DECISIONS HAVE RECOGNIZED, CENTURIES OF HISTORY SUPPORT THE
GOVERNMENT'S CLAIM THAT FORFEITURE STATUTES SIMILAR TO THIS ONE HAVE AN
EXTRAORDINARILY BROAD SCOPE.  SEE GOLDSMITH-GRANT CO. V. UNITED STATES,
254 U.S. 505 (1921); UNITED STATES V. ONE FORD COUPE, 272 U.S. 321
(1926).  TRADITIONALLY, FORFEITURE ACTIONS HAVE PROCEEDED UPON THE
FICTION THAT INANIMATE OBJECTS THEMSELVES CAN BE GUILTY OF WRONGDOING. 
SEE DOBBINS'S DISTILLERY V. UNITED STATES, 96 U.S. 395, 399-401 (1878);
THE PALMYRA, 12 WHEAT.  1, 14 (1827).  SIMPLY PUT, THE THEORY HAS BEEN
THAT IF THE OBJECT IS "GUILTY," IT SHOULD BE HELD FORFEIT.  IN THE
WORDS OF A MEDIEVAL ENGLISH WRITER, "WHERE A MAN KILLETH ANOTHER WITH
THE SWORD OF JOHN AT STILE, THE SWORD SHALL BE FORFEIT AS DEODAND, AND
YET NO DEFAULT IS IN THE OWNER."  /3/  THE MODERN FORFEITURE STATUTES
ARE THE DIRECT DESCENDANTS OF THIS HERITAGE, WHICH IS SEARCHINGLY
CONSIDERED BY MR. JUSTICE HOLMES IN A BRILLIANT CHAPTER IN HIS BOOK,
THE COMMON LAW.  /4/  THE FORFEITURE ACTION IN THE PRESENT CASE WAS
INSTITUTED AS AN IN REM PROCEEDING IN WHICH THE MONEY ITSELF IS THE
FORMAL RESPONDENT.  MORE REMARKABLE, THE GOVERNMENT'S COMPLAINT CHARGES
THE MONEY WITH THE COMMISSION OF AN ACTIONABLE WRONG.  /5/ 

IT WOULD APPEAR THEN THAT HISTORY DOES SUPPORT THE GOVERNMENT'S
CONTENTION REGARDING THE OPERATION OF THIS FORFEITURE STATUTE, AS DO
SEVERAL DECISIONS RENDERED BY THE COURTS OF APPEALS.  /6/  BUT BEFORE
THE GOVERNMENT'S ATTEMPT TO DISTINGUISH THE BOYD CASE COULD EVEN BEGIN
TO CONVINCE, WE WOULD FIRST HAVE TO BE SATISFIED THAT A FORFEITURE
STATUTE, WITH SUCH A BROAD SWEEP, DID NOT RAISE SERIOUS CONSTITUTIONAL
QUESTIONS UNDER THAT PORTION OF THE FIFTH AMENDMENT WHICH COMMANDS THAT
NO PERSON SHALL BE "DEPRIVED OF . . . PROPERTY, WITHOUT DUE PROCESS OF
LAW; NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST
COMPENSATION."  EVEN BLACKSTONE, WHO IS NOT KNOWN AS A BITING CRITIC OF
THE ENGLISH LEGAL TRADITION, CONDEMNED THE SEIZURE OF THE PROPERTY OF
THE INNOCENT AS BASED UPON A "SUPERSTITION" INHERITED FROM THE "BLIND
DAYS" OF FEUDALISM.  /7/  AND THIS COURT IN THE PAST HAS RECOGNIZED THE
DIFFICULTY OF RECONCILING THE BROAD SCOPE OF TRADITIONAL FORFEITURE
DOCTRINE WITH THE REQUIREMENTS OF THE FIFTH AMENDMENT.  SEE, E.G.,
GOLDSMITH-GRANT CO. V. UNITED STATES, SUPRA.  CF. UNITED STATES V. ONE
FORD COACH, 307 U.S. 219, 236-237 (1939). 

WE NEED NOT PURSUE THAT INQUIRY ONCE AGAIN, HOWEVER, BECAUSE WE
THINK THAT THE GOVERNMENT'S ARGUMENT FAILS ON ANOTHER SCORE.  FOR THE
BROAD LANGUAGE OF SEC. 7302 CANNOT BE UNDERSTOOD WITHOUT CONSIDERING
THE TERMS OF THE OTHER STATUTES WHICH REGULATE FORFEITURE PROCEEDINGS. 
AN EXPRESS STATUTORY PROVISION PERMITS THE INNOCENT OWNER TO PROVE TO
THE SECRETARY OF THE TREASURY THAT THE "FORFEITURE WAS INCURRED WITHOUT
WILLFUL NEGLIGENCE OR WITHOUT ANY INTENTION ON THE PART OF THE
PETITIONER . . . TO VIOLATE THE LAW . . . . "  19 U.S.C. 1618.  /8/
UPON THIS SHOWING, THE SECRETARY IS AUTHORIZED TO RETURN THE SEIZED
PROPERTY "UPON SUCH TERMS AND CONDITIONS AS HE DEEMS REASONABLE AND
JUST."  IT IS NOT TO BE PRESUMED THAT THE SECRETARY WILL NOT
CONSCIENTIOUSLY FULFILL THIS TRUST, AND THE COURTS HAVE INTERVENED WHEN
THE INNOCENT PETITIONER'S PROTESTS HAVE GONE UNHEEDED.  UNITED STATES
V. EDWARDS, 368 F.2D 722 (CA4 1966); COTONIFICIO BUSTESE, S.A. V.
MORGENTHAU, 74 APP.D.C. 13, 121 F.2D 884 (1941) (RUTLEDGE, J.).  WHEN
THE FORFEITURE STATUTES ARE VIEWED IN THEIR ENTIRETY, IT IS MANIFEST
THAT THEY ARE INTENDED TO IMPOSE A PENALTY ONLY UPON THOSE WHO ARE
SIGNIFICANTLY INVOLVED IN A CRIMINAL ENTERPRISE.  /9/  IT FOLLOWS FROM
BOYD, MARCHETTI, AND GROSSO THAT THE FIFTH AMENDMENT'S PRIVILEGE MAY
PROPERLY BE INVOKED IN THESE PROCEEDINGS.  /10/

        II 

THE GOVERNMENT NEXT CONTENDS THAT IN ANY EVENT OUR DECISIONS IN
MARCHETTI AND GROSSO SHOULD NOT BE RETROACTIVELY APPLIED TO GOVERN
SEIZURES OF PROPERTY TAKING PLACE BEFORE THESE DECISIONS WERE HANDED
DOWN ON JANUARY 29, 1968.  IT IS SAID THAT IN RELIANCE ON THE COURT'S
EARLIER DECISIONS IN KAHRIGER AND LEWIS, /11/  WHICH UPHELD THE
VALIDITY OF THE GAMBLING TAX AND REGISTRATION REQUIREMENTS,
"$6,686,098.22 WORTH OF MONEY AND PROPERTY HAS BEEN SEIZED UNDER 26
U.S.C. 7302."  BRIEF FOR THE UNITED STATES 32-33.  THE SOLICITOR
GENERAL CONCEDES, HOWEVER, THAT THIS FIGURE OVERESTIMATES THE
GOVERNMENT'S STAKE IN THE RETROACTIVITY QUESTION SINCE "THERE ARE NO
RELIABLE STATISTICS INDICATING WHAT PERCENTAGE (OF THE PROPERTY SEIZED)
WAS EVENTUALLY RETURNED TO CLAIMANTS" WHO PROVED TO THE SECRETARY OF
THE TREASURY THAT THEY WERE NOT SIGNIFICANTLY INVOLVED IN CRIMINAL
GAMBLING ACTIVITIES.  ID., AT 33.  NEVERTHELESS, THE GOVERNMENT
CONTENDS THAT SIMPLY BECAUSE SOME LITIGATION MAY BE ANTICIPATED AS
GAMBLERS ATTEMPT TO RECLAIM THEIR PROPERTY, THE RETROACTIVE EFFECT OF
THE NEW RULE SHOULD BE LIMITED. 

WE CANNOT AGREE.  UNLIKE SOME OF OUR EARLIER RETROACTIVITY
DECISIONS, WE ARE NOT HERE CONCERNED WITH THE IMPLEMENTATION OF A
PROCEDURAL RULE WHICH DOES NOT UNDERMINE THE BASIC ACCURACY OF THE
FACTFINDING PROCESS AT TRIAL.  LINKLETTER V. WALKER, 381 U.S. 618
(1965); TEHAN V. SHOTT, 382 U.S. 406 (1966); JOHNSON V. NEW JERSEY, 384
U.S. 719 (1966); STOVALL V. DENNO, 388 U.S. 293 (1967).  RATHER,
MARCHETTI AND GROSSO DEALT WITH THE KIND OF CONDUCT THAT CANNOT
CONSTITUTIONALLY BE PUNISHED IN THE FIRST INSTANCE.  THESE CASES HELD
THAT GAMBLERS IN ANGELINI'S POSITION HAD THE FIFTH AMENDMENT RIGHT TO
REMAIN SILENT IN THE FACE OF THE STATUTE'S COMMAND THAT THEY SUBMIT
REPORTS WHICH COULD INCRIMINATE THEM.  IN THE ABSENCE OF A WAIVER OF
THAT RIGHT, SUCH PERSONS COULD NOT PROPERLY BE PROSECUTED AT ALL. 

GIVEN THE AIM OF THE MARCHETTI-GROSSO RULE, IT SEEMS CLEAR THAT THE
GOVERNMENT MUST BE REQUIRED TO UNDERGO THE RELATIVELY INSIGNIFICANT
INCONVENIENCE INVOLVED IN DEFENDING ANY LAWSUITS THAT MAY BE
ANTICIPATED.  INDEED, THIS CONCLUSION FOLLOWS A FORTIORI FROM THOSE
DECISIONS MANDATING THE RETROACTIVE APPLICATION OF THOSE NEW RULES
WHICH SUBSTANTIALLY IMPROVE THE ACCURACY OF THE FACTFINDING PROCESS AT
TRIAL.  /12/  IN THOSE CASES, RETROACTIVITY WAS HELD REQUIRED BECAUSE
THE FAILURE TO EMPLOY SUCH RULES AT TRIAL MEANT THERE WAS A SIGNIFICANT
CHANCE THAT INNOCENT MEN HAD BEEN WRONGFULLY PUNISHED IN THE PAST.  IN
THE CASE BEFORE US, HOWEVER, EVEN THE USE OF IMPECCABLE FACTFINDING
PROCEDURES COULD NOT LEGITIMATE A VERDICT DECREEING FORFEITURE, FOR WE
HAVE HELD THAT THE CONDUCT BEING PENALIZED IS CONSTITUTIONALLY IMMUNE
FROM PUNISHMENT.  NO CIRCUMSTANCES CALL MORE FOR THE INVOCATION OF A
RULE OF COMPLETE RETROACTIVITY.  /13/

              AFFIRMED. 

/1/  UNITED STATES V. ONE 1965 BUICK, 392 F.2D 672, REHEARING
DENIED, 397 F.2D 782. 

/2/  GROSSO V. UNITED STATES, 390 U.S.,AT 70 N. 7; SEE ALSO
MARCHETTI V. UNITED STATES, 390 U.S.,AT 41-42, 61. 

/3/  QUOTED FROM O. HOLMES, THE COMMON LAW 23 (M. HOWE ED. 1963). 

/4/  HOMES, SUPRA, N. 3, LECTURE 1. 

/5/  THE LIBEL CHARGED THAT:  "ON ONE OR MORE OF THE AFOREMENTIONED
DATES . . . AFORESAID RESPONDENTS (I.E., THE MONEY) HAD BEEN USED AND
WERE INTENDED TO BE USED IN VIOLATION OF THE INTERNAL REVENUE LAWS OF
THE UNITED STATES OF AMERICA . . . WHEREFORE, FRANK E. MCDONALD, UNITED
STATES ATTORNEY FOR THE NORTHERN DISTRICT OF ILLINOIS . . . PRAYS . . .
THAT AFORESAID RESPONDENTS BE ADJUDGED AND DECREED FORFEITED TO THE
UNITED STATES OF AMERICA."  APP. 5-6.     /6/  UNITED STATES V. BRIDE,
308 F.2D 470 (CA9 1962); UNITED STATES V. ONE 1958 PONTIAC COUPE, 298
F.2D 421 (CA7 1962); CF. UNITED STATES V. ONE 1957 OLDSMOBILE
AUTOMOBILE, 256 F.2D 931 (CA5 1958). 

/7/  1 W. BLACKSTONE, COMMENTARIES, C. 8, *300. 

/8/  ALTHOUGH THIS STATUTE APPEARS IN TITLE 19, REGULATING
FORFEITURES UNDER THE CUSTOMS LAWS, 26 U.S.C. 7327 PROVIDES THAT:  "THE
PROVISIONS OF LAW APPLICABLE TO THE REMISSION OR MITIGATION BY THE
SECRETARY OR HIS DELEGATE OF FORFEITURES UNDER THE CUSTOMS LAWS SHALL
APPLY TO FORFEITURES INCURRED OR ALLEGED TO HAVE BEEN INCURRED UNDER
THE INTERNAL REVENUE LAWS."     /9/  IT IS NOTEWORTHY THAT THE LIBEL
INSTITUTED BY THE UNITED STATES MADE CLAIM TO THE $8,674 BECAUSE "A
BUSINESS WAS BEING OPERATED BY DONALD ANGELINI, IN VIOLATION OF (THE
GAMBLING TAX PROVISIONS),"  APP. 5, AND THAT THE EVIDENCE INTRODUCED AT
TRIAL WAS CONSISTENT ONLY WITH THIS THEORY OF LIABILITY. 

/10/  IN THE PRESENT CASE, THE GOVERNMENT HAS NOT SUGGESTED THAT THE
FIFTH AMENDMENT PROVIDES ANGELINI WITH A DEFENSE ONLY WITH RESPECT TO
HIS FAILURE TO FILE THE REQUIRED REGISTRATION AND TAX FORMS, AND THAT
THE GAMBLER'S FAILURE TO PAY THE REQUIRED TAX MAY STILL BE PUNISHED
CONSISTENTLY WITH MARCHETTI AND GROSSO.  THIS ARGUMENT WAS PROPERLY
ABANDONED BY THE SOLICITOR GENERAL ON REARGUMENT IN MARCHETTI AND
GROSSO, SEE BRIEF FOR THE UNITED STATES ON REARGUMENT 37-41, MARCHETTI
V. UNITED STATES AND GROSSO V. UNITED STATES, SUPRA, AND WE HELD IN
GROSSO THAT, "(ALTHOUGH FAILURES TO PAY THE EXCISE TAX AND TO FILE A
RETURN ARE SEPARATELY PUNISHABLE UNDER 26 U.S.C. 7203, THE TWO
OBLIGATIONS MUST BE CONSIDERED INSEPARABLE FOR PURPOSES OF MEASURING
THE HAZARDS OF SELF-INCRIMINATION WHICH MIGHT STEM FROM PAYMENT OF THE
EXCISE TAX."  390 U.S.,AT 65.  SIMILARLY, MARCHETTI RULED THAT:  "THE
STATUTORY OBLIGATIONS TO REGISTER AND TO PAY THE OCCUPATIONAL TAX ARE
ESSENTIALLY INSEPARABLE ELEMENTS OF A SINGLE REGISTRATION PROCEDURE." 
390 U.S.,AT 42-43, AND SEE N. 3.  CONSEQUENTLY, IT APPEARS CLEAR THAT
THE FIFTH AMENDMENT PROVIDES GAMBLERS IN ANGELINI'S POSITION WITH A
COMPLETE DEFENSE. 

/11/  UNITED STATES V. KAHRIGER, 345 U.S. 22 (1953); LEWIS V. UNITED
STATES, 348 U.S. 419 (1955). 

/12/  SEE, E.G., ROBERTS V. RUSSELL, 392 U.S. 293 (1968); MCCONNELL
V. RHAY, 393 U.S. 2 (1968); ARSENAULT V. MASSACHUSETTS, 393 U.S. 5
(1968); BERGER V. CALIFORNIA, 393 D.S. 314 (1969). 

/13/  IN THE VIEW OF THE WRITER OF THIS OPINION, THE FACT THAT THIS
CASE HAD NOT BECOME FINAL BY THE TIME OF THIS COURT'S DECISIONS IN
MARCHETTI AND GROSSO SUFFICES, WITHOUT MORE, TO REQUIRE REJECTION OF
THE GOVERNMENT'S CONTENTION RESPECTING NONRETROACTIVITY.  SEE, E.G.,
DESIST V. UNITED STATES, 394 1.S. 244, 256 (HARLAN, J., DISSENTING),
AND MACKEY V. UNITED STATES, ANTE, P. 675 (HARLAN, J., CONCURRING IN
JUDGMENTS AND DISSENTING). 

MR. JUSTICE BLACK CONCURS IN THE COURT'S JUDGMENT AND THE OPINION SO
FAR AS IT GOES.  HE WOULD GO FURTHER AND NOW OVERRULE LINKLETTER V.
WALKER, 381 U.S. 618 (1965), AND ITS PROGENY. 

MR. JUSTICE BRENNAN, CONCURRING. 

I JOIN THE OPINION OF THE COURT.  THE DISSENT WOULD HAVE US HOLD
THAT THE GOVERNMENT MAY CONTINUE INDEFINITELY TO ENFORCE CRIMINAL
PENALTIES AGAINST INDIVIDUALS WHO HAD THE TEMERITY TO ENGAGE IN CONDUCT
PROTECTED BY THE BILL OF RIGHTS BEFORE THE DAY THAT THIS COURT HELD THE
CONDUCT PROTECTED.  ANY SUCH HOLDING WOULD HAVE NO MORE SUPPORT IN
REASON THAN IT DOES IN OUR CASES. 

        I 

FRANK RECOGNITION OF THE POSSIBLE IMPACT OF RETROACTIVE APPLICATION
OF CONSTITUTIONAL DECISIONS ON THE ADMINISTRATION OF CRIMINAL JUSTICE
HAS LED THIS COURT TO ESTABLISH GUIDELINES TO DETERMINE THE
RETROACTIVITY OF "CONSTITUTIONAL RULES OF CRIMINAL PROCEDURE."  STOVALL
V. DENNO, 388 U.S. 293, 296 (1967).  SINCE "(EACH CONSTITUTIONAL RULE
OF CRIMINAL PROCEDURE HAS ITS OWN DISTINCT FUNCTIONS, ITS OWN
BACKGROUND OF PRECEDENT, AND ITS OWN IMPACT ON THE ADMINISTRATION OF
JUSTICE," THE "RETROACTIVITY OR NONRETROACTIVITY OF A RULE IS NOT
AUTOMATICALLY DETERMINED BY THE PROVISION OF THE CONSTITUTION ON WHICH
THE DICTATE IS BASED."  JOHNSON V. NEW JERSEY, 384 U.S. 719, 728
(1966).  BUT ALTHOUGH "(THE EXTENT TO WHICH A CONDEMNED PRACTICE
INFECTS THE INTEGRITY OF THE TRUTH-DETERMINING PROCESS AT TRIAL IS A
'QUESTION OF PROBABILITIES,'" STOVALL V. DENNO, 388 U.S.,AT 298,
QUOTING JOHNSON V. NEW JERSEY, 384 U.S.,AT 729, AS A GENERAL MATTER
"(WHERE THE MAJOR PURPOSE OF NEW CONSTITUTIONAL DOCTRINE IS TO OVERCOME
AN ASPECT OF THE CRIMINAL TRIAL WHICH SUBSTANTIALLY IMPAIRS ITS TRUTH
FINDING FUNCTION AND SO RAISES SERIOUS QUESTIONS ABOUT THE ACCURACY OF
GUILTY VERDICTS IN PAST TRIALS, THE NEW RULE HAS BEEN GIVEN COMPLETE
RETROACTIVE EFFECT."  WILLIAMS V. UNITED STATES, ANTE, AT 653. 
"NEITHER GOOD-FAITH RELIANCE BY STATE OR FEDERAL AUTHORITIES ON PRIOR
CONSTITUTIONAL LAW OR ACCEPTED PRACTICE, NOR SEVERE IMPACT ON THE
ADMINISTRATION OF JUSTICE HAS SUFFICED TO REQUIRE PROSPECTIVE
APPLICATION IN THESE CIRCUMSTANCES."  IBID.  /1/ 

THE REASONING THAT UNDERLIES THESE GUIDELINES IS CLEAR.  THE STATES
AND THE FEDERAL GOVERNMENT HAVE, OF COURSE, A LEGITIMATE INTEREST IN
THE EVENHANDED ENFORCEMENT OF SUCH SANCTIONS AS THEY DESIRE TO IMPOSE
UPON ANY CONDUCT THAT THEY MAY CONSTITUTIONALLY PROHIBIT.  BY
DEFINITION A "NEW RULE OF CRIMINAL PROCEDURE" CASTS NO DOUBT UPON THE
POWER OF GOVERNMENT TO PUNISH CERTAIN CONDUCT, BUT ONLY UPON THE
LEGITIMACY OF THE PROCESS BY WHICH PERSONS WERE FOUND TO HAVE ENGAGED
IN THAT CONDUCT.  OF COURSE A GOVERNMENT HAS NO LEGITIMATE INTEREST IN
UPHOLDING AN UNCONSTITUTIONAL SYSTEM OF CRIMINAL PROCEDURE.  BUT
ACCEPTING THE RESULTS THAT AN UNCONSTITUTIONAL PROCEDURE HAS REACHED IN
THE PAST DOES NOT UPHOLD SUCH A SYSTEM FOR THE FUTURE.  NOTWITHSTANDING
THE NEW PROCEDURAL RULE THE GOVERNMENT RETAINS A LEGITIMATE INTEREST IN
SANCTIONING CONDUCT THAT IT MAY CONSTITUTIONALLY PROHIBIT. 
ACCORDINGLY, WHEN A NEW PROCEDURAL RULE HAS CAST NO SUBSTANTIAL DOUBT
UPON THE RELIABILITY OF DETERMINATIONS OF GUILT IN CRIMINAL CASES, WE
HAVE DENIED THE RULE RETROACTIVE EFFECT WHERE A CONTRARY DECISION WOULD
"IMPOSE A SUBSTANTIAL BURDEN (OF RETRIALS) UPON THE . . . JUDICIAL
SYSTEM . . . WHILE SERVING NEITHER TO REDRESS KNOWING VIOLATIONS OF
(CONSTITUTIONAL RIGHTS) NOR TO PROTECT A CLASS OF PERSONS THE
GOVERNMENT HAS NO LEGITIMATE INTEREST IN PUNISHING."  WILLIAMS V.
UNITED STATES, ANTE, AT 664 (BRENNAN, J., CONCURRING IN RESULT); SEE
DESIST V. UNITED STATES, 394 C.S. 244 (1969).  BUT SINCE THE GOVERNMENT
HAS NO LEGITIMATE INTEREST IN PUNISHING THOSE INNOCENT OF WRONGDOING,
CF. THOMPSON V. LOUISVILLE, 362 U.S. 199 (1960), WHEN A NEW PROCEDURAL
RULE CASTS DOUBT UPON THE RELIABILITY OF A SUBSTANTIAL PROPORTION OF
PAST CONVICTIONS OBTAINED WITHOUT ITS PROTECTIONS, WE HAVE REQUIRED THE
NEW RULE BE GIVEN FULL RETROACTIVE EFFECT.  WILLIAMS V. UNITED STATES,
ANTE, AT 653.  FROM THIS IT FOLLOWS A FORTIORI THAT A DECISION HOLDING
CERTAIN CONDUCT BEYOND THE POWER OF GOVERNMENT TO SANCTION OR PROHIBIT
MUST BE APPLIED TO PREVENT THE CONTINUING IMPOSITION OF SANCTIONS FOR
CONDUCT ENGAGED IN BEFORE THE DATE OF THAT DECISION.  FOR THE DECISION
DOES FAR MORE THAN CAST DOUBT UPON THE RELIABILITY OF THE GUILT
DETERMINING PROCESS.  IT MAKES THE QUESTION OF RELIABILITY IRRELEVANT,
FOR IT ESTABLISHES BEYOND PERADVENTURE THAT THE GOVERNMENT HAS NO
LEGITIMATE INTEREST IN PUNISHING SUCH CONDUCT AT ALL.  SEE EX PARTE
SIEBOLD, 100 U.S. 371, 376-377 (1880).  ACCORDINGLY, IT MAY NO LONGER
CONTINUE TO PUNISH IT.

        II 

THE DISSENT SEEKS TO EXPLAIN ITS VIEW OF THIS CASE ON THE GROUND
THAT EVEN AFTER THIS COURT HAS DECLARED CERTAIN INDIVIDUAL CONDUCT
BEYOND THE POWER OF GOVERNMENT TO PROHIBIT, THE GOVERNMENT RETAINS AN
"INTEREST IN MAINTAINING THE RULE OF LAW AND IN DEMONSTRATING THAT
THOSE WHO DEFY THE LAW DO NOT DO SO WITH IMPUNITY" BY PUNISHING THOSE
PERSONS WHO ENGAGED IN CONSTITUTIONALLY PROTECTED CONDUCT BEFORE IT WAS
SO DECLARED BY THIS COURT.  POST, AT 735.  THIS ARGUMENT, OF COURSE,
HAS NOTHING WHATEVER TO DO WITH THE RULE OF LAW.  IT EXALTS MERELY THE
RULE OF JUDGES BY APPROVING PUNISHMENT OF AN INDIVIDUAL FOR THE LESE
MAJESTE OF ASSERTING A CONSTITUTIONAL RIGHT BEFORE WE SAID HE HAD IT.
IN LIGHT OF OUR FREQUENT REITERATION THAT THE USUAL MODE OF CHALLENGING
AN UNCONSTITUTIONAL STATUTE IS EXPECTED TO BE VIOLATION OF THE STATUTE
AND ADJUDICATION OF THE CONSTITUTIONAL CHALLEGE IN A CRIMINAL
PROCEEDING, SEE, E.G., DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157, 163
(9143); DOMBROWSKI V. PFISTER, 380 U.S. 479, 484-485 (1965), IT IS
DIFFICULT TO SEE HOW THIS ARGUMENT AMOUNTS TO MORE THAN A FLAT
STATEMENT THAT THOSE WHO ASSERT THEIR CONSTITUTIONAL RIGHTS BEFORE WE
HAVE DECLARED THEM MAY NOT DO SO WITH IMPUNITY. 

IF THE DISSENT TODAY MEANS WHAT IT SAYS, IT WOULD APPEAR TO FOLLOW
THAT VIRGINIA MIGHT KEEP IN JAIL INTERRACIAL MARRIED COUPLES WHOSE ONLY
OFFENSE WAS COHABITATION WITHIN THE STATE, SO LONG AS THE COHABITATION
WAS PRIOR TO LOVING V. VIRGINIA, 388 U.S. 1 (1967); OR THAT ARKANSAS
COULD STILL DISCHARGE SCHOOL TEACHERS WHO TAUGHT EVOLUTION BEFORE WE
STRUCK DOWN THE RELEVANT STATUTE IN EPPERSON V. ARKANSAS, 393 U.S. 97
(1968).  OF COURSE THE DISSENTERS WOULD NEVER UPHOLD SUCH ACTION.  BUT
IF THERE IS ANY DISTINCTION BETWEEN THESE CASES AND THE CASE AT BAR, IT
CAN ONLY BE THAT ANGELINI IS ASSERTING HIS PRIVILEGE AGAINST SELF
INCRIMINATION, RATHER THAN A RIGHT UNDER THE FIRST OR FOURTEENTH
AMENDMENT.  WHATEVER MAY BE THE RELEVANCE OF THE SOURCE OF A NEW
CONSTITUTIONAL RULE IN DETERMINING THE EXTENT TO WHICH IT AFFECTS THE
RELIABILITY OF THE FACTFINDING PROCESS AT TRIAL, HOWEVER, THERE IS NO
JUSTIFICATION FOR ALLOWING THE GOVERNMENT GREATER POWER TO VINDICATE
ITS NONEXISTENT INTEREST IN ENFORCING AN UNCONSTITUTIONAL STATE THAT
PUNISHES ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION THAN TO
VINDICATE ITS INTEREST IN ENFORCING A STATUTE THAT PUNISHES THE
ASSERTION OF ANY OTHER CONSTITUTIONAL RIGHT. 

/1/  THE FEW CASES IN WHICH WE HAVE RECOGNIZED THAT A NEW
CONSTITUTIONAL RULE MAY IN SOME CIRCUMSTANCES IMPROVE THE ACCURACY OF
THE FACTFINDING PROCESS, WHILE AT THE SAME TIME DENYING RETROACTIVE
APPLICATION TO THAT RULE, DO NOT IN MY VIEW UNDERCUT THE FORCE OF THESE
STATEMENTS.  THE RELEVANT CASES ARE COLLECTED AND DISCUSSED IN AN
APPENDIX TO THIS OPINION, INFRA, P. 728. 

        APPENDIX TO OPINION OF BRENNAN, J.,

        CONCURRING 

OUR CASES SHOW LITTLE DEVIATION FROM THE PRINCIPLE THAT NEW
CONSTITUTIONAL RULES OF CRIMINAL PROCEDURE THAT AFFECT THE INTEGRITY OF
THE FACTFINDING PROCESS WILL, IN GENERAL, BE RETROACTIVELY APPLIED.  IN
TEHAN V. SHOTT, 382 U.S. 406 (1966), WE DENIED RETROACTIVE EFFECT TO
GRIFFIN V. CALIFORNIA, 382 U.S. 609 (1965), DESPITE OUR RECOGNITION
THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION WHICH GRIFFIN PROTECTED
DID IN SOME CIRCUMSTANCES SERVE AS AN ADJUNCT TO TRUTH.  382 U.S.,AT
414-415, N. 12, QUOTING MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 55
(1964).  BUT IN TEHAN WE NOTED SPECIFICALLY THAT THE PRIVILEGE AGAINST
SELF-INCRIMINATION IS NOT PRIMARILY "AN ADJUNCT TO THE ASCERTAINMENT OF
TRUTH," 382 U.S.,AT 416, AND EMPHASIZED AS WELL THAT RETROACTIVE
APPLICATION OF GRIFFIN WOULD, IN THE STATES CONCERNED, "HAVE AN IMPACT
UPON THE ADMINISTRATION OF THEIR CRIMINAL LAW SO DEVASTATING AS TO NEED
NO ELABORATION."  ID., AT 419.  SIMILARLY, IN JOHNSON V. NEW JERSEY,
384 U.S. 719 (1966), WE DENIED RETROACTIVE EFFECT TO ESOBEDO V.
ILLINOIS, 378 U.S. 478 (1964), AND MIRANDA V. ARIZONA, 384 D.S. 436
(1966), NOTWITHSTANDING OUR RECOGNITION THAT THE PRINCIPLES ANNOUNCED
IN THOSE CASES WOULD IN SOME CIRCUMSTANCES GUARD AGAINST THE
POSSIBILITY OF UNRELIABLE CONFESSIONS.  384 U.S.,AT 730.  BUT WE
EMPHASIZED IN JOHNSON THAT STRICT PRE-MIRANDA STANDARDS WERE AVAILABLE
TO THOSE DESIRING TO TEST THE ADMISSIBILITY OF CONFESSIONS, IBID., AS
WELL AS POINTING OUT THE SEVERE IMPACT THAT RETROACTIVITY WOULD HAVE ON
STATE CRIMINAL PROCESSES.  ID., AT 731-732.  IN STOVALL V. DENNO, 388
U.S. 293 (1967), WE DENIED RETROACTIVE EFFECT TO UNITED STATES V. WADE,
388 U.S. 218 (1967), AND GILBERT V. CALIFORNIA, 388 U.S. 263 (1967),
BECAUSE OF UNCERTAINTY ABOUT THE FREQUENCY WITH WHICH VIOLATION OF THE
RULE THERE ANNOUNCED WOULD ACTUALLY RESULT IN INJUSTICE, THE
AVAILABILITY OF A DUE PROCESS STANDARD TO REMEDY AT LEAST THE MORE
SERIOUS INJUSTICES, AND THE "UNUSUAL FORCE OF THE COUNTERVAILING
CONSIDERATIONS."  STOVALL V. DENNO, 388 U.S.,AT 299.  FINALLY, IN
DESTEFANO V. WOODS, 392 U.S. 631 (1968), WE DENIED RETROACTIVE EFFECT
TO DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), AND BLOOM V. ILLINOIS, 391
U.S. 194 (1968), HOLDING RESPECTIVELY THAT THE STATES MUST AFFORD
CRIMINAL DEFENDANTS A JURY TRIAL ON DEMAND IN SERIOUS CRIMINAL CASES,
AND THAT THE RIGHT TO JURY TRIAL EXTENDS TO TRIALS FOR SERIOUS CRIMINAL
CONTEMPTS.  AS TO DUNCAN, RETROACTIVITY WAS DENIED BECAUSE WE
CONSIDERED THAT THERE WAS LITTLE LIKELIHOOD THAT BENCH TRIALS, AS A
WHOLE, WOULD BE UNFAIR, AND BECAUSE RETROACTIVE APPLICATION COULD IN
SOME STATES REOPEN EVERY CONVICTION FOR SERIOUS CRIME.  392 U.S.,AT 633
634.  AS TO BLOOM, WE RECOGNIZED THAT ONE GROUND FOR THE RESULT WAS
"THE BELIEF THAT CONTEMPT TRIALS, WHICH OFTEN OCCUR BEFORE THE VERY
JUDGE WHO WAS THE OBJECT OF THE ALLEGEDLY CONTEMPTUOUS BEHAVIOR, WOULD
BE MORE FAIRLY TRIED IF A JURY DETERMINED GUILT."  ID., AT 634.  BUT
THE FIRM TRADITION OF NONJURY TRIALS IN CONTEMPT CASES, COMBINED WITH
THE ADVERSE IMPACT OF RETROACTIVITY ON THE ADMINISTRATION OF JUSTICE,
COMBINED TO PERSUADE US THAT BLOOM SHOULD BE APPLIED PROSPECTIVELY
ONLY.  ID., AT 634-635.  IN ADDITION, IT SHOULD BE NOTED THAT THIS
COURT HAS NOT BEEN HESITANT TO REVERSE CONTEMPT CONVICTIONS BECAUSE OF
THE POSSIBILITY OF INVOLVEMENT ON THE PART OF THE JUDGE.  SEE MAYBERRY
V. PENNSYLVANIA, 400 U.S. 455 (1971), AND CASES CITED.     EXAMINATION
OF THESE CASES, THEREFORE, INDICATES THAT IN ALL CASES SAVE
DESTEFANO/BLOOM, WE REGARDED AS RELATIVELY SMALL THE LIKELIHOOD THAT
NONCOMPLIANCE WITH THE NEW RULE WOULD HAVE RESULTED IN SERIOUS
INJUSTICE IN ANY PAST CASES.  MOREOVER, IN ALL CASES SAVE TEHAN AND
DESTEFANO/DUNCAN, ALTERNATIVE METHODS WERE STILL AVAILABLE TO THOSE WHO
COULD DEMONSTRATE THAT THE FEARED INJUSTICE HAD IN FACT RESULTED. 
TAKEN IN COMBINATION, THESE FACTORS LEAD ME TO CONCLUDE THAT THE CASES
DISCUSSED IN THIS APPENDIX DO NOT UNDERCUT THE FORCE OF THE PROPOSITION
AT ISSUE. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE STEWART,
AND MR. JUSTICE BLACKMUN JOIN, DISSENTING. 

  I 

NONE OF ANGELINI'S RIGHTS UNDER THE FIFTH AMENDMENT WERE VIOLATED
WHEN THIS FORFEITURE PROCEEDING WAS BEGUN AND CONCLUDED IN THE DISTRICT
COURT.  IN VIOLATION OF THE INTERNAL REVENUE CODE, ANGELINI HAD FAILED
TO REGISTER AS A GAMBLER AND TO PAY THE RELATED GAMBLING TAX; HE WAS
SUBJECT TO CRIMINAL PENALTIES FOR THE DEFAULT; AND UNITEDSTATES V.
KAHRIGER, 345 U.S. 22 (1953), AND LEWIS V. UNITED STATES, 348 U.S. 419
(1955), HAD SPECIFICALLY HELD THAT THE STATUTORY OBLIGATION TO FILE AND
PAY WAS NOT COMPULSORY SELF-INCRIMINATION PROSCRIBED BY THE FIFTH
AMENDMENT.  THE AMENDMENT AT THAT TIME AFFORDED ANGELINI NO DEFENSE
EITHER TO A CRIMINAL CHARGE FOR REFUSAL TO REGISTER AND PAY OR TO A
FORFEITURE PROCEEDING BASED ON THE SAME OFFENSES. 

AFTER AFFIRMANCE OF THE FORFEITURE JUDGMENT IN THE COURT OF APPEALS,
HOWEVER, OUR DECISIONS IN MARCHETTI V. UNITED STATES, 390 1.S. 39
(1968), AND GROSSO V. UNITED STATES, 390 U.S. 62 (1968), INTERVENED. 
KAHRIGER AND LEWIS WERE OVERRULED.  OBLIGATORY FILING AND PAYMENT WERE
HELD VIOLATIVE OF THE FIFTH AMENDMENT.  IT FOLLOWED THAT FAILURE TO
COMPLY WITH THE STATUTE THEREAFTER COULD NOT BE PUNISHED BY LAW. 
ANGELINI NOW CLAIMS THE BENEFIT OF THE NEW CONSTITUTIONAL DOCTRINE
ANNOUNCED BY MARCHETTI-GROSSO. 

OF COURSE, WE ARE NOT FREE TO SET ASIDE CONVICTIONS OR FORFEITURES
AT WILL.  THE FORFEITURE JUDGMENT IMPOSED HERE MUST STAND UNLESS THE
CONSTITUTION OTHERWISE COMMANDS.  MORE SPECIFICALLY, WE ARE EMPOWERED
TO SET ASIDE THE JUDGMENT ONLY IF WE ARE CONSTITUTIONALLY COMPELLED TO
GIVE MARCHETTI AND GROSSO RETROACTIVE APPLICATION. 

IT IS NOW FIRMLY SETTLED THAT THE CONSTITUTION DOES NOT REQUIRE
EVERY NEW INTERPRETATION OF THE BILL OF RIGHTS TO BE RETROSPECTIVELY
APPLIED.  THE CASES FROM LINKLETTER V. WALKER, 381 U.S. 618 (1965), TO
WILLIAMS V. UNITED STATES, ANTE, P. 646, PROVE AT LEAST THIS MUCH. 
THEY ALSO SQUARELY HOLD THAT RETROACTIVE SWEEP OF NEWLY ANNOUNCED
CONSTITUTIONAL DOCTRINE IS NOT REQUIRED WHERE VIOLATION OF THAT
DOCTRINE RAISES NO SUBSTANTIAL DOUBTS ABOUT THE FACTUAL ACCURACY OF
GUILTY VERDICTS RENDERED UNDER PREVIOUS LAW.  BUT IF THE NEW RULE IS
SUCH THAT ITS NONOBSERVANCE IN THE PAST CASTS SUBSTANTIAL DOUBT ON THE
RELIABILITY OF PRIOR CONVICTIONS, ALL PRIOR VERDICTS INVOLVING SUCH A
VIOLATION MUST BE SET ASIDE REGARDLESS OF COUNTERVAILING ARGUMENTS
ABOUT THE IMPACT ON STATE AND FEDERAL INTERESTS IN MAINTAINING CRIMINAL
JUDGMENTS. 

SO FAR, THE COURT AND I ARE APPARENTLY IN COMPLETE AGREEMENT.  BUT I
CANNOT JOIN THE COURT IN ITS DISPOSITION OF THIS CASE.  THE MAJORITY'S
REASONING IS SIMPLE:  IF WE ARE REQUIRED TO APPLY RETROACTIVELY ANY NEW
CONSITUTIONAL INTERPRETATION CASTING SERIOUS DOUBT ON THE ACCURACY OF
PRIOR VERDICTS, WE ARE ALSO COMPELLED TO SET ASIDE CONVICTIONS OR
PENALTIES BASED ON CONDUCT THAT SUBSEQUENT DECISIONS-- EXPRESSLY
CONTRARY TO PRIOR DECISIONS OF THIS COURT-- HOLD TO BE CONSTITUTIONALLY
PROTECTED.  IF VERDICTS MAY NOT STAND WHERE THE NEW RULE CASTS DOUBT ON
THE INTEGRITY OF PRIOR TRIALS, SURELY, IT IS ARGUED, A JUDGMENT SUCH AS
THE ONE AGAINST ANGELINI MUST BE SET ASIDE BECAUSE THERE SHOULD NEVER
HAVE BEEN A TRIAL AT ALL. 

BUT THIS APPROACH IS NO MORE THAN A BEGUILING VERBALISM.  THERE IS
NO DOUBT IN THIS CASE THAT ANGELINI FAILED TO REGISTER, FILE HIS
RETURNS, AND PAY HIS TAX; NOR IS THERE ANY SUGGESTION THAT EITHER
ANGELINI'S CONVICTION OR THE INSTANT FORFEITURE PROCEEDINGS WERE IN ANY
WAY UNFAIR OR DEPARTED FROM CONTROLLING NORMS.  THE ARGUMENT HERE IS
NOT THAT NEW CONSTITUTIONAL INSIGHT RAISES DOUBTS WHETHER ANGELINI
COMMITTED THE ACTS GIVING RISE TO THE FORFEITURE OR THE ACCURACY OF THE
PROCEDURES EMPLOYED IN DETERMINING WHETHER HE ACTED AS CHARGED; RATHER,
IT IS THAT THE FORFEITURE JUDGMENT MUST BE SET ASIDE BECAUSE BASED ON
CONDUCT WHICH MARCHETTI-GROSSO HAVE DECLARED TO BE CONSTITUTIONALLY
IMMUNE.  AS ANGELINI WOULD HAVE IT, COMPLETE RETROACTIVITY MUST ALWAYS
BE GIVEN TO DECISIONS INVALIDATING ON CONSTITUTIONAL GROUNDS ANY
SUBSTANTIVE CRIMINAL STATUTE.  ANY STATUTE DEFINING CRIMINAL CONDUCT,
IF DECLARED UNCONSTITUTIONAL, IS VOID AB INITIO. 

I FAIL TO FIND ANY SUCH COMMAND, EXPRESS OR IMPLIED, IN THE FIFTH
AMENDMENT OR IN ANY OTHER PROVISION OF THE CONSTITUTION.  NOR DOES THE
COURT CARE TO EXPLAIN THE RESULT IT REACHES.  IT DOES NOT EMBRACE THE
THEORY THAT THE CONSTITUTION MUST BE UNDERSTOOD ALWAYS TO HAVE MEANT
WHAT THE COURT NOW SAYS IT MEANS.  IT DOES NOT DENY THAT THIS COURT
MAKES CONSTITUTIONAL LAW.  NOR DOES IT ASSERT THAT PRIOR
INTERPRETATIONS OF THE CONSTITUTION WERE NEVER VALID LAW AND MUST
ALWAYS BE DISREGARDED.  BUT APPARENTLY A STATUTE MAKING CERTAIN CONDUCT
CRIMINAL, ONCE INVALIDATED HERE, WAS NEVER THE LAW ALTHOUGH THIS COURT
FORMERLY HELD THAT IT WAS AND HAD REGULARLY AFFIRMED CONVICTIONS UNDER
IT OVER EXPLICIT CONSTITUTIONAL CHALLENGE.  I AM NOT PREPARED TO AGREE
WITH THIS PROPOSITION. 

        II 

HAD ANGELINI REGISTERED AND PAID THE FEDERAL TAX AND THEN BEEN TRIED
PRIOR TO MARCHETTI-GROSSO FOR VIOLATING FEDERAL INTERSTATE GAMBLING
LAWS OR STATE LAWS MAKING GAMBLING A CRIME, THE ADMISSIONS CONTAINED IN
HIS REGISTRATION AND GAMBLING TAX RETURNS WOULD HAVE BEEN RELEVANT AND
PRESUMPTIVELY RELIABLE EVIDENCE OF GUILT, PROPERLY ADMISSIBLE UNDER
KAHRIGER AND LEWIS.  AND IF AFTER MARCHETTI-GROSSO, ANGELINI HAD
COMPLAINED ABOUT THE USE OF THIS EVIDENCE, TEHAN V. SHOTT, 382 U.S. 406
(1966), AND JOHNSON V. NEW JERSEY, 384 U.S. 719, 732 (1966), WOULD
SURELY DICTATE DENIAL OF RELIEF WHETHER ANGELINI CAME HERE ON DIRECT
REVIEW OF HIS CONVICTION OR FROM DENIAL OF COLLATERAL RELIEF. 

IF WE WOULD NOT UPSET A CONVICTION WHERE ANGELINI REGISTERED AND
FILED TAX RETURNS AND THESE FILED STATEMENTS WERE USED AGAINST HIM IN A
CRIMINAL PROSECUTION, NEITHER SHOULD WE IMPLEMENT THE MARCHETTI-GROSSO
READING OF THE FIFTH AMENDMENT BY APPLYING IT WHERE THERE HAS BEEN NO
SELF-INCRIMINATION BUT A CONVICTION OR FORFEITURE FOR FAILURE TO
REGISTER OR PAY THE TAX.  IN MACKEY V. UNITED STATES, ANTE, P. 667, IT
SEEMS TO ME THAT A MAJOR PREDICATE FOR PERMITTING MACKEY'S GAMBLING TAX
RETURNS TO BE USED AGAINST HIM IN A CRIMINAL PROSECUTION WAS THAT THOSE
RETURNS WERE NOT COMPELLED ADMISSIONS-- THAT MACKEY'S FIFTH AMENDMENT
RIGHTS WERE NOT VIOLATED BY THE STATUTORY REQUIREMENT TO REGISTER, FILE
RETURNS, AND PAY THE GAMBLING TAX, FOR THAT ISSUE WAS CONTROLLED BY
KAHRIGER AND LEWIS, NOT BY MARCHETTI AND GROSSO.  ANGELINI IS IN NO
BETTER POSITION THAN WAS MACKEY TO ARGUE SUCCESSFULLY THAT THE
REGISTRATION STATUTE WAS INVALID WHEN HE DECIDED TO IGNORE IT OR THAT
THE STATUTE CALLED FOR "COMPELLED" INCRIMINATING ADMISSIONS.  TO URGE
THAT THE INTEGRITY OF THE FORFEITURE PROCEEDING AGAINST ANGELINI IS
DESTROYED BECAUSE MARCHETTI-GROSSO FORBADE ANY FORFEITURES AT ALL IS
MERELY TO REASSERT OR ASSUME THAT THOSE DECISIONS MUST BE GIVEN
RETROACTIVE EFFECT.  IN TERMS OF IMPLEMENTING THE PURPOSE OF MARCHETTI
AND GROSSO AND THE FIFTH AMENDMENT, I SEE NO DIFFERENCE BETWEEN
CONVICTIONS OR FORFEITURES FOR NONCOMPLIANCE WITH THE STATUTE AND THOSE
OBTAINED BY USING THE FRUITS OF COMPLIANCE WITH THAT SAME STATUTE. 
ANGELINI'S FUNDS WERE VALIDLY AND ACCURATELY FORFEITED FOR FAILING TO
FILE HIS RETURNS CONTRARY TO A STATUTE THAT THIS COURT HAD UPHELD AS
CONSISTENT WITH THE FIFTH AMENDMENT.  RELIEF TO ANGELINI WOULD MERELY
REMOVE RETROACTIVELY A BURDEN ON CONDUCT, WHICH WHEN JUDGED BY CURRENT
CASES, WAS AN EXERCISE OF HIS SELF-INCRIMINATION PRIVILEGE, BUT WHICH
WHEN IT OCCURRED AND UNDER THE THEN-CONTROLLING LAW WAS A BREACH OF
DUTY HE WAS LEGALLY BOUND TO PERFORM. 

        III 

IT IS TRUE THAT IF THIS JUDGMENT OF FORFEITURE WERE AFFIRMED THE LAW
WOULD COUNTENANCE A PENALTY FOR PAST CRIMINAL ACTS THAT ARE WHOLLY
INNOCENT UNDER THE CURRENT LAW.  IT IS ALSO TRUE THAT WHEN THE LAW NO
LONGER CENSURES CERTAIN ACTS, THE GOVERNMENT SURRENDERS ITS INTEREST IN
DETERRING PRIOR DELINQUENTS OR THE PUBLIC GENERALLY FROM ENGAGING IN A
PARTICULAR FORM OF CONDUCT THAT ONCE WAS CRIMINAL BUT IS NOW
UNOBJECTIONABLE BEHAVIOR.  BUT THERE REMAINS THE INTEREST IN
MAINTAINING THE RULE OF LAW AND IN DEMONSTRATING THAT THOSE WHO DEFY
THE LAW DO NOT DO SO WITH IMPUNITY.  CLEARLY, THE CONSTITUTION DOES NOT
REQUIRE THE AUTHORITIES TO VINDICATE THIS INTEREST UPON THE DEMISE OF A
CRIMINAL LAW AND SOME OF US MAY THINK IT UNWISE TO DO SO.  BUT IS THE
INTEREST SO INSUBSTANTIAL THAT THE CONSTITUTION FORBIDS A STATE OR THE
FEDERAL GOVERNMENT FROM CONTINUING TO PUNISH BEHAVIOR WHICH WAS ONCE
BUT IS NOT NOW CRIMINAL CONDUCT?  I THINK NOT. 

THE QUESTION IS AN OLD ONE FOR BOTH COURTS AND LEGISLATURES AND MY
ANSWER IS NOT NOVEL, EITHER IN THE CONTEXT OF THE REPEAL OF A CRIMINAL
STATUTE OR IN THE CONTEXT OF A COURT DECISION OVERRULING A PRIOR CASE
WITH RESPECT TO THE CONSTITUTIONALITY OF A STATUTE. 

THE COMMON LAW NEVER ATTACHED COMPLETE RETROSPECTIVITY TO THE REPEAL
OF A CRIMINAL STATUTE.  ABSENT STATUTORY GUIDANCE, THE JUDGE-MADE RULE
WAS THAT THOSE WHOSE CONVICTIONS HAD BEEN FINALLY AFFIRMED WHEN REPEAL
TOOK PLACE RECEIVED NO BENEFIT FROM THE NEW RULE; BUT REPEAL OF A
STATUTE ABATED PENDING PROSECUTIONS AND REQUIRED REVERSAL OF
CONVICTIONS STILL ON APPEAL WHEN THE LAW WAS CHANGED.  UNITED STATES V.
CHAMBERS, 291 U.S. 217 (1934); MASSEY V. UNITED STATES, 291 U.S. 608
(1934); UNITED STATES V. TYNEN, 11 WALL.  88 (1871); YEATON V. UNITED
STATES, 5 CRANCH 281 (1809); IN RE KLINE, 70 OHIO ST. 25, 70 N.E. 511
(1904); STATE V. ADDINGTON, 2 BAILEY (S.C.)  516 (1831); EX PARTE
ANDRES, 91 TEX.CR.R. 93, 237 S.W. 283 (1922); SEE ALSO 1 SUTHERLAND,
STATUTORY CONSTRUCTION SEC. 2046 (1943 ED.). 

THE COURTS NEVERTHELESS HONORED PROVISIONS IN REPEALING STATUTES
SAVING PROSECUTIONS AND FORFEITURES FOR CONDUCT COMMITTED WHILE THE
FORMER STATUTE WAS IN EFFECT.  THE IRRESTIBILE, 7 WHEAT.  551 (1822); 1
SUTHERLAND, SUPRA, SEC. 2050.  MOREOVER, IN 1871, CONGRESS ENACTED THE
FOLLOWING GENERAL STATUTE WHICH, AMONG OTHER THINGS, SAVED ONGOING
CRIMINAL PROSECUTIONS FROM ABATEMENT FOLLOWING REPEAL OF A PENAL
STATUTE: 

"(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."  16 STAT. 432. 

THIS SECTION WAS CARRIED FORWARD AND EVENTUALLY BROADENED BY
AMENDMENT "TO PROVIDE THAT THE EXPIRATION OF A TEMPORARY STATUTE SHALL
NOT HAVE THE EFFECT OF PREVENTING PROSECUTION OF AN OFFENSE COMMITTED
UNDER THE TEMPORARY STATUTE" BY MAKING "APPLICABLE TO VIOLATIONS OF
TEMPORARY STATUTES THE SAME RULE THAT IS NOW IN EFFECT IN RESPECT TO
OFFENSES AGAINST STATUTES THAT HAVE BEEN REPEALED."  H.R. REP. NO. 261,
78TH CONG., 1ST SESS., 1 (1943).  /1/  TODAY, 46 STATES, AS WELL AS THE
FEDERAL GOVERNME;NT, MAKE PROVISION FOR SAVING PENDING CRIMINAL
PROSECUTIONS FROM THE REPEAL OF THE UNDERLYING STATUTE.  /2/  THE
PREVAILING LEGISLATIVE POLICY AND POSITIVE LAW THUS IS THAT NEITHER THE
REPEAL OF A STATUTE NOR THE EXPIRATION OF A TEMPORARY ACT SHALL RELEASE
OR EXTINGUISH PENALITIES, FORFEITURES, OR LIABILITIES INCURRED UNDER
STATUTES NO LONGER IN FORCE.  CONDUCT PERFECTLY INNOCENT UNDER CURRENT
LAW IS NEVERTHELESS PUNISHABLE IF IT OCCURRED WHILE A VALID CRIMINAL
STATUTE PROSCRIBED IT.  THE COURTS HAVE REGULARLY ENFORCED 1 U.S.C.
109, THE FEDERAL SAVING STATUTE, NEVER SUGGESTING THAT IT WAS
CONSTITUTIONALLY INFORM OR EVEN FUNDAMENTALLY UNFAIR AND FRANKLIN
RECOGNIZING THAT THE GOVERNMENT IS FREE TO MAINTAIN THE INTEGRITY OF
THE LAW BY INSISTING THAT THOSE WHO VIOLATE IT SUFFER THE
CONSEQUENCES.  /3/ 

OF COURSE, THE CASE BEFORE US DOES NOT INVOLVE THE LEGISLATIVE
REPEAL OF AN EXISTING CRIMINAL STATUTE BUT A CONSTRUCTION OF THE FIFTH
AMENDMENT BY THIS COURT CONTRARY TO PAST INTERPRETATIONS OF THAT
AMENDMENT AND HAVING THE EFFECT OF BARRING ENFORCEMENT OF 26 U.S.C.
7203 AGAINST THOSE REFUSING TO REGISTER AS GAMBLERS AND PAY THE
GAMBLING TAX.  AS TO THOSE PERSONS, AT LEAST THOSE FAILING TO FILE AND
PAY AFTER JANUARY 29, 1968, 26 U.S.C. 7203 MAY NOT CONSTITUTIONALLY BE
ENFORCED.  DOES SUCH A DECLARATION CONCERNING A LAW WHICH THIS COURT
HAD PREVIOUSLY VALIDATED MEAN THAT THE LAW WAS TO THIS EXTENT VOID FROM
THE MOMENT IT WAS ENACTED?  IF SO, IT WOULD APPEAR THAT NOT ONLY SHOULD
PENDING PROSECUTIONS ABATE, BUT ALSO ALL PREVIOUS CONVICTIONS SHOULD BE
VULNERABLE TO HABEAS CORPUS PETITIONS ALLEGING THAT PETITIONERS ARE IN
CUSTODY PURSUANT TO AN UNCONSTITUTIONAL LAW.  OR SHOULD THE STATUTE
VALIDATED BY PRIOR COURT DECISIONS BE CONSIDERED A VALID LAW UNTIL THE
DATE OF ITS INVALIDATION AND ITS DEMISE TREATED AS CONGRESS TREATS THE
REPEAL OF A STATUTE? 

NEITHER OF THESE ALTERNATIVES HAS FOUND UNQUALIFIED SUPPORT IN THIS
COURT.  THERE ARE STATEMENTS IN THE CASES INDICATING THAT AN
UNCONSTITUTIONAL LAW MUST BE TREATED AS HAVING NO EFFECT WHATSOEVER
FROM THE VERY DATE OF ITS ENACTMENT.  CHICAGO, I. & L.R. CO. V.
HACKETT, 228 U.S. 559 (1913); NORTON V. SHELBY COUNTY, 118 U.S. 425
(1886); EX PARTE SIEBOLD, 100 U.S. 371, 376 (1880).  /4/  BUT THIS VIEW
HAS NOT PREVAILED.  INGELPCKE V. CITY OF DUBUQUE, 1 WALL.  175, 206
(1864), THE CITY ISSUED BONDS PURSUANT TO LEGISLATIVE AUTHORIZATION
THAT THE IOWA SUPREME COURT HAD UPHELD AS CONSTITUTIONAL.  THE SAME
COURT THEN OVERRULED ITSELF AND HELD THE STATUTORY AUTHORIZAION TO BE
VOID.  THIS COURT REFUSED TO ALLOW THE STATE COURT TO GIVE RETROACTIVE
EFFECT TO THE OVERRULING DECISION BY INVALIDATING THE BONDS, SAYING
THAT THE LEGISLATURE COULD NOT IMPAIR THE OBLIGATION OF AN EXISTING
CONTRACT AND THAT THE SAME PRINCIPLE APPLIES "WHERE THERE IS A CHANGE
OF JUDICIAL DECISION AS TO THE CONSTITUTIONAL POWER OF THE LEGISLATURE
TO ENACT THE LAW.  TO THIS RULE, THUS ENLARGED, WE ADHERE.  IT IS THE
LAW OF THIS COURT."  /5/ 

GREAT NORTHERN R. CO. V. SUNBURST OIL & REFINING CO., 287 U.S. 358
(1932), /6/  WAS ANOTHER INDICATION THAT THE COURT CLEARLY REJECTED ANY
ALL-INCLUSIVE PRINCIPLE OF RETROACTIVITY FOR COURT DECISIONS
DECLARATIVE OF A CHANGE IN THE LAW.  IN CHICOT COUNTY DRAINAGE DISTRICT
V. BAXTER STATE BANK, 308 U.S. 371 (1940Y, THIS COURT WAS FACED WITH
THE QUESTION WHETHER RETROACTIVE EFFECT SHOULD BE ACCORDED AN EARLIER
DECISION DECLARING A FEDERAL STATUTE UNCONSTITUTIONAL, ASHTON V.
CAMERON COUNTY DISTRICT, 298 U.S. 513 (1936).  REFERRING EXPRESSLY TO
NORTON, CHIEF JUSTICE HUGHES STATED THAT THE BROAD LANGUAGE IN THAT
OPINION "MUST BE TAKEN WITH QUALIFICATIONS."  308 U.S.,AT 374.  AS HE
ASSERTED: 

"THE ACTUAL EXISTENCE OF A STATUTE, PRIOR TO (A DETERMINATION OF
UNCONSTITUTIONALITY), 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.  THESE QUESTIONS ARE AMONG THE MOST DIFFICULT OF THOSE
WHICH HAVE ENGAGED THE ATTENTION OF COURTS, STATE AND FEDERAL, AND IT
IS MANIFEST FROM NUMEROUS DECISIONS THAT AN ALL-INCLUSIVE STATEMENT OF
A PRINCIPLE OF ABSOLUTE RETROACTIVE INVALIDITY CANNOT BE JUSTIFIED." 
IBID. 

THIS CLEAR REJECTION OF THE IDEA THAT EVERY DECISION DECLARING A
STATUTE UNCONSTITUTIONAL HAD RETROACTIVE SWEEP WAS ONE OF THE
UNDERPINNINGS OF LINKLETTER V. WALKER, 381 U.S. 618, 622-629 (1965),
AND HAS BEEN INVOKED SINCE LINKLETTER.  /7/  IT WAS AGAINST THIS
BACKGROUND THAT THIS COURT HAD FASHIONED RULES TO DEAL WITH THE IMPACT
ON PENDING AND CLOSED CRIMINAL CASES OF DECISIONS THAT OVERRULED PRIOR
DECISIONS CONSTRUING THE VARIOUS PROVISIONS OF THE BILL OF RIGHTS.  AND
IT IS AGAINST THIS BACKGROUND THAT I WOULD REVERSE THE JUDGMENT OF THE
COURT OF APPEALS. 

/1/  IN A LETTER TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES IN
SUPPORT OF THIS BROADENING AMENDMENT, ATTORNEY GENERAL BIDDLE REFERRED
TO THE COMMON-LAW RULE AS A "DEFICIENCY (WHICH) HAS BEEN CURED AS
CONCERNS OFFENSES COGNIZABLE UNDER A STATUTE THAT HAS BEEN EXPRESSLY
REPEALED, AS DISTINGUISHED FROM ONE THAT EXPIRES BY ITS OWN TERMS." 
SEE H.R. REP. NO. 261, 78TH CONG., 1ST SESS., 1 (1943).  HE THEN
INDICATED THAT THERE WAS DOUBT ABOUT WHETHER THE GENERAL SAVING
PROVISION IDENTICAL TO THAT ENACTED IN 1871 (BY THEN 1 U.S.C. 29 (1940
ED.))  APPLIED TO VIOLATIONS OF TEMPORARY STATUTES THAT EXPIRED BEFORE
PROSECUTIONS COULD BE CONCLUDED.  THE ATTORNEY GENERAL NEXT STATED THAT
A NUMBER OF WARTIME STATUTES OF A TEMPORARY NATURE HAD BEEN ENACTED,
AND THAT TO FORESTALL QUESTIONS ABOUT THEIR ENFORCEABILITY AFTER
EXPIRATION "IT APPEARS DESIRABLE TO ENACT LEGISLATION WHICH WOULD
EXPRESSLY PERMIT PROSECUTIONS AFTER THE LAPSE OF SUCH TEMPORARY
STATUTES FOR VIOLATIONS COMMITTED WHILE THE ACT IS IN FORCE."  H.R.
REP. NO. 261, SUPRA, AT 2. 

/2/  THE 46 STATES ARE:  ALABAMA: ALA. CODE, TIT. 1, SEC. 11 (1958);
ALASKA:  ALASKA STAT. SEC. 01.05.021 (1962); ARIZONA:  ARIZ. REV. STAT.
ANN. SECS. 1-246, 1-247 (1956); SEE ALSO ID., SECS. 1-244, 1-249;
ARKANSAS:  ARK. STAT. ANN. SEC. 1-103 (1947); CALIFORNIA:  CAL. GOVT.
CODE SEC. 9608 (1966); COLORADO:  COLO. REV. STAT. ANN. SECS. 135-1-7,
135-4-7 (1963); CONNECTICUT:  CONN. GEN. STAT. REV. SEC. 54-194 (1968);
FLORIDA:  FLA. CONST., ART. 10, SEC. 9; GEORGIA:  GA. CODE ANN. SEC. 26
103 (1953); HAWAII:  HAWAII REV. LAWS SEC. 1-11 (1968); IDAHO:  IDAHO
CODE SEC. 67-513 (1947); ILLINOIS:  ILL. REV. STAT., C. 131, SEC. 4
(1969); INDIANA:  IND. ANN. STAT. SEC. 1-303, 1-307 (1967); IOWA:  IOWA
CODE SEC. 4.1(1) (1971); KANSAS:  KAN. STAT. ANN. SEC. 77-201 (1969);
KENTUCKY:  KY. REV. STAT. SEC. 446.110 (1962); LOUISIANA:  LA. REV.
STAT. SEC. 24:171 (1950); MAINE:  ME. REV. STAT. ANN., TIT. 1, SEC. 302
(SUPP. 1970-1971); MARYLAND:  MD. ANN. CODE, ART. 1, SEC. 3 (1957);
MASSACHUSETTS:  MASS. GEN. LAWS ANN., C. 4, SEC. 6 (1966); MICHIGAN:
MICH. COMP. LAWS SEC. 8.4A (1948); MINNESOTA:  MINN. STAT. SEC. 645.35
(1967); MISSISSIPPI: MISS.  CODE ANN. SEC. 2608 (1957); MISSOURI:  MO.
REV. STAT. SEC. 1.160 (1969); MONTANA:  MONT. REV. CODES ANN. SEC. 43
514 (1961); NEBRASKA:  NEB. REV. STAT. SEC. 49-301 (1968); NEVADA:
NEV. REV. STAT. SEC. 169.235 (1968); NEW HAMPSHIRE:  N.H. REV. STAT.
ANN. SEC. SEC. 21:38 (1955); NEW JERSEY:  N.J. REV. STAT. SEC. 1:1-15
(1937); NEW MEXICO: N.M. CONST., ART. 4, SEC. 33; NEW YORK:  N.Y. GEN.
CONSTR.  LAW SEC. 94 (1951); NORTH CAROLINA:  N.C. GEN. STAT. SECS. 164
4, 164-5 (1964); NORTH DAKOTA:  N.D. CENT. CODE SEC. 1-02-17 (1959)
(SAVES PENALTIES, FINES LIABILITIES, OR FORFEITURES INCURRED UNDER A
REPEALED STATUTE AND PROVIDES THAT THE REPEALED ACT REMAINS IN FORCE
FOR THE PURPOSE OF ENFORCING SUCH FINES, PENALTIES, OR FORFEITURES;
HOWEVER, UNLESS THE REPEALING STATUTE EXPRESSLY PROVIDES OTHERWISE, IN
CASES TRIED BOTH BEFORE AND AFTER THE REPEAL, THE REPEALING STATUTE HAS
THE EFFECT OF "EXTINGUISHING ANY JAIL OR PRISON SENTENCE THAT MAY BE,
OR THAT HAS BEEN, IMPOSED, BY REASON OF SAID LAW . . . . "  IBID.; BUT
SEE IN RE CHAMBERS, 69 N.D. 309, 285 N.W. 862 (1939), WHERE THE COURT
HELD THAT INSOFAR AS SEC. 1-02-17 PURPORTED TO EXTINGUISH PRISON
SENTENCES IMPOSED AFTER TRIAL WHICH PRECEDED THE EFFECTIVE DATE OF THE
REPEALING STATUTE, THE SECTION WAS UNCONSTITUTIONAL UNDER N.D. CONST.
SEC. 76, WHICH VESTS POWER TO PARDON IN THE GOVERNOR AND THE BOARD OF
PARDSON); OHIO:  OHIO REV. CODE ANN. SEC. 1.20 (1969); OKLAHOMA:  OKLA.
CONST., ART. 5, SEC. 54; OREGON:  ORE.  REV.  STAT. SEC. 161.040
(1967); RHODE ISLAND:  R.I. GEN. LAWS ANN. SEC. 43-3-23 (1956); SOUTH
DAKOTA:  S.D. COMPILED LAWS ANN. SEC. 2-14-18 (1967); TENNESSEE:  TENN.
CODE ANN. SEC. 1-301 (1955); UTAH:  UTAH CODE ANN. SEC. 68-3-5 (1968);
VERMONT:  VT. STAT. ANN., TIT. 1, SEC. 214 (SUPP. 1970); VIRGINIA:  VA.
CODE ANN. SEC. 1-16 (1950); WASHINGTON:  WASH. REV. CODE SEC. 10.01.040
(1956); WEST VIRGINIA:  W.VA. CODE ANN. SEC. 2-2-8 (1966); WISCONSIN:
WISC.  STAT.  SEC. 990.04 (1967); WYOMING:  WYO. STAT. ANN. SEC. 8-21
(1957). 

OF THE FOUR OTHER STATES, DELAWARE HAS A PROVISION BUT IT APPLIES
ONLY TO SAVE PROSECUTIONS FOR ANY OFFENSES COMMITTED UNDER LAWS
REPEALED WHEN THE STATE'S COMPREHENSIVE CODE OF 1953 WAS ADOPTED.  DEL.
CODE ANN., TIT. 1, SEC. 104 (1953).  SEE ALSO PA. STAT. ANN., TIT. 46,
SEC. 596 (1969), A GENERAL SAVING PROVISION APPLICABLE ONLY TO REPEAL
OF "CIVIL PROVISIONS."  HOWEVER, UNDER PA. STAT. ANN., TIT. 46, SEC.
582, IF THE REPEAL OF A PENAL STATUTE IS ACCOMPANIED BY A RE-ENACTMENT
AT THE SAME TIME OF THE REPEALED LAW'S PROVISIONS IN "SUBSTANTIALLY THE
SAME TERMS," A PROSECUTION WILL BE SAVED.  SEE COMMONWEALTH V. DAVIS, 4
PA. D. & C. 2D 182 (1954).  TEX. PEN.  CODE, ART. 14.16 (1952),
PROVIDES:  "THE REPEAL OF A LAW WHERE THE REPEALING STATUTE SUBSTITUTES
NO OTHER PENALTY WILL EXEMPT FROM PUNISHMENT ALL PERSONS WHO MAY HAVE
VIOLATED SUCH REPEALED LAW, UNLESS IT BE OTHERWISE DECLARED IN THE
REPEALING STATUTE."  BUT TEX. PEN.  CODE, ART. 17.19 SAVES PROSECUTIONS
FOR OFFENSES COMMITTED UNDER STATUTES REPEALED WHEN THE NEW PENAL CODE
TOOK EFFECT.  SOUTH CAROLINA APPARENTLY HAS NO GENERAL SAVING PROVISION
APPLICABLE TO CRIMINAL PROSECUTIONS. 

/3/  UNITED STATES V. REISINGER, 128 U.S. 398 (1888) (ENFORCING ONE
OF THE PREDECESSORS OF 1 U.S.C. 109); ALLEN V. GRAND CENTRAL AIRCRAFT
CO., 347 U.S. 535, 553-555 (1954); MOOREHEAD V. HUNTER, 198 F.2D 52
(CA10 1952); LOVELY V. UNITED STATES, 175 F.2D 312, 316-318 (CA4 1949);
REHBERG V. UNITED STATES, 174 F.2D 121 (CA5 1949); LADNER V. UNITED
STATES, 168 F.2D 771 (CA5 1948).  1 SUTHERLAND, STATUTORY CONSTRUCTION
2048 (1943 ED.).  SEE ALSO FLEMING V. MOHAWK WRECKING & LUMBER CO., 331
U.S. 111, 119 (1947); DUFFEL V. UNITED STATES, 95 U.S.APP.D.C. 242, 221
F.2D 523 (1954); CF. UNITED STATES V. CURTISS-WRIGHT EXPORT CORP., 299
U.S. 304, 331-333 (1936); UNITED STATES V. HARK, 320 U.S. 531 (1944)
(REVERSING AN ORDER QUASHING AN INDICTMENT CHARGING VIOLATION OF
MAXIMUM PRICE REGULATION THAT HAD BEEN REVOKED PRIOR TO THE DATE THE
INDICTMENT WAS RETURNED ON THE GROUND THAT THE STATUTE UNDER WHICH THE
REGULATION WAS ISSUED REMAINED IN EFFECT AFTER REVOCATION). 

IN UNITED STATES V. CHAMBERS, 291 U.S. 217 (1934), THIS COURT WAS
FACED WITH THE QUESTION OF WHAT EFFECT REPEAL OF THE EIGHTEENTH
AMENDMENT BY THE TWENTY-FIRST AMENDMENT ON DECEMBER 5, 1933, WOULD HAVE
ON CRIMINAL PROSECUTIONS CONTINUED OR BEGUN UNDER THE NATIONAL
PROHIBITION ACT AFTER THE REPEALING AMENDMENT HAD BEEN RATIFIED.  IN AN
OPINION BY CHIEF JUSTICE HUGHES, THE COURT APPLIED THE COMMON-LAW RULE
OF TYNEN AND YEATON AND HELD THAT PENDING PROSECUTIONS, INCLUDING THOSE
STILL ON DIRECT REVIEW, WOULD BE ABATED.  THE QUESTION OF WHETHER THE
TWENTY-FIRST AMENDMENT HAD ANY EFFECT ON CONVICTIONS WHICH HAD BECOME
FINAL BEFORE THE DATE OF RATIFICATION WAS SPECIFICALLY RESERVED.  291
U.S.,AT 226.  THEREAFTER, THE COURTS OF APPEALS HELD THAT DEFENDANTS
WHOSE CONVICTIONS HAD BECOME FINAL BEFORE THE TWENTY-FIRST AMENDMENT
WAS RATIFIED HAD TO SERVE THEIR SENTENCES.  UNITED STATES EX REL.
RANDALL V. UNITED STATES MARSHAL, 143 F.2D 830 (CA2 1944); ODEKIRK V.
RYAN, 85 F.2D 313 (CA6 1936); UNITED STATES EX REL. CHERAMIE V. DUTTON,
74 F.2D 740 (CA5 1935), CERT. DENIED SUB NOM. UNITED STATES EX REL.
CHERAMIE V. FREUDENSTEIN, 295 U.S. 733 (1935); RIVES V. O'HEARNE, 64
APP.D.C. 48, 73 F.2D 984 (1934); MOSS V. UNITED STATES, 72 F.2D 30 (CA4
1934); THE HELEN, 72 F.2D 772 (CA3 1934) (COMMON-LAW RULE OF CHAMBERS
APPLIED TO A FORFEITURE); UNITED STATES EX REL. BENTON V. HILL, 72 F.2D
826 (CA3 1934); UNITED STATES EX REL. VOORHEES V. HILL, 72 F.2D 826
(CA3 1934); UNITED STATES EX REL. NERBONNE V. HILL, 70 F.2D 1006 (CA3
1934). 

IN CHAMBERS, THE COURT REJECTED THE GOVERNMENT'S SUGGESTION THAT THE
GENERAL SAVING PROVISION-- THE PREDECESSOR OF SEC. 109-- SUPPORTED THE
CONTINUATION OF PROSECUTIONS PENDING WHEN THE REPEALING AMENDMENT WAS
RATIFIED.  THE SAVING STATUTE WAS DISCUSSED AS PASSED IN RECOGNITION OF
THE PRINCIPLE THAT UNLESS A REPEALED LAW IS "CONTINUED IN FORCE BY
COMPETENT AUTHORITY," 291 U.S.,AT 224, REPEAL HALTS ENFORCEMENT. 
CONGRESS HAD THE POWER TO PROPOSE THE TWENTY-FIRST AMENDMENT SO AS TO
INCLUDE A SAVING PROVISION, BUT NOT TO VARY THE AMENDMENT'S TERMS ONCE
IT WAS ADOPTED.  SINCE AS ADOPTED THE AMENDMENT GAVE CONGRESS NO POWER
TO EXTEND THE OPERATION OF THE NATIONAL PROHIBITION ACT, WHICH WAS
DEPRIVED OF ITS FORCE BY THE ACTION OF THE PEOPLE IN REPEALING THE
EIGHTEENTH AMENDMENT, THE COURT CONCLUDED THAT THE GENERAL SAVING
PROVISION HAD NO APPLICATION.  IBID. 

THERE CAN BE NO DOUBT THAT A COURT WHICH HAD JUST DECIDED GREAT
NORTHERN R. CO. V. SUNBURST OIL & REFINING CO., 287 U.S. 358 (1932),
WOULD CONSIDER THE JUDICIARY AS "COMPETENT AUTHORITY" TO FASHION A RULE
THAT A STATUTE, THOUGH CHANGED BY INTERPRETATION, NEVERTHELESS REMAINED
IN FORCE AND APPLICABLE TO EVENTS THAT TRANSPIRED BEFORE THE CHANGE
OCCURRED.  SEE NN. 6-7, INFRA, AND ACCOMPANYING TEXT. 

/4/  IN NORTON, MR. JUSTICE FIELD DECLARED: 

"AN UNCONSTITUTIONAL ACT IS NOT A LAW; IT CONFERS NO RIGHTS; IT
IMPOSES NO DUTIES; IT AFFORDS NO PROTECTION; IT CREATES NO OFFICE; IT
IS, IN LEGAL CONTEMPLATION, AS INOPERATIVE AS THOUGH IT HAD NEVER BEEN
PASSED."  118 U.S.,AT 442. 

/5/  THE COURT SO HELD OVER THE DISSENT OF MR. JUSTICE MILLER WHO
SAID: 

"THE SUPREME COURT OF IOWA IS NOT THE FIRST OR THE ONLY COURT WHICH
HAS CHANGED ITS RULINGS ON QUESTIONS AS IMPORTANT AS THE ONE NOW
PRESENTED.  I UNDERSTAND THE DOCTRINE TO BE IN SUCH CASES, NOT THAT THE
LAW IS CHANGED, BUT THAT IT WAS ALWAYS THE SAME AS EXPOUNDED BY THE
LATER DECISION, AND THAT THE FORMER DECISION WAS NOT, AND NEVER HAD
BEEN, THE LAW, AND IS OVERRULED FOR THAT VERY REASON.  THE DECISION OF
THIS COURT CONTRAVENES THIS PRINCIPLE, AND HOLDS THAT THE DECISION OF
THE COURT MAKES THE LAW, AND IN FACT, THAT THE SAME STATUTE OR
CONSTITUTION MEANS ONE THING IN 1853, AND ANOTHER THING IN 1859."  1
WALL., AT 211. 

SEE ALSO LOEB V. COLUMBIA TOWNSHIP TRUSTEES, 179 U.S. 472, 492
(1900); DOUGLASS V. COUNTY OF PIKE, 101 U.S. 677, 687 (1880). 

/6/  SUNBURST REJECTED THE CLAIM THAT A STATE COURT COULD NOT
CONSTITUTIONALLY REFUSE TO MAKE ITS RULING RETROACTIVE.  MR. JUSTICE
CARDOZO HELD: 

"A STATE IN DEFINING THE LIMITS OF ADHERENCE TO PRECEDENT MAY MAKE A
CHOICE FOR ITSELF BETWEEN THE PRINCIPLE OF FORWARD OPERATION AND THAT
OF RELATION BACKWARD.  IT MAY SAY THAT DECISIONS OF ITS HIGHEST COURT,
THOUGH LATER OVERRULED, ARE LAW NONE THE LESS FOR INTERMEDIATE
TRANSACTIONS.  INDEED THERE ARE CASES INTIMATING, TOO BROADLY, THAT IT
MUST GIVE THEM THAT EFFECT; BUT NEVER HAS DOUBT BEEN EXPRESSED THAT IT
MAY SO TREAT THEM IF IT PLEASES, WHENEVER INJUSTICE OR HARDSHIP WILL
THEREBY BE AVERTED.  ON THE OTHER HAND, IT MAY HOLD TO THE ANCIENT
DOGMA THAT THE LAW DECLARED BY ITS COURTS HAD A PLATONIC OR IDEAL
EXISTENCE BEFORE THE ACT OF DECLARATION, IN WHICH EVENT THE DISCREDITED
DECLARATION WILL BE VIEWED AS IF IT HAD NEVER BEEN, AND THE
RECONSIDERED DECLARATION AS LAW FROM THE BEGINNING.  THE ALTERNATIVE IS
THE SAME WHETHER THE SUBJECT OF THE NEW DECISION IS COMMON LAW OR
STATUTE.  THE CHOICE FOR ANY STATE MAY BE DETERMINED BY THE JURISTIC
PHILOSOPHY OF THE JUDGES OF HER COURTS, THEIR CONCEPTIONS OF LAW, ITS
ORIGIN AND NATURE."  287 U.S. 358, AT 364-365 (CITATIONS OMITTED,
FOOTNOTES OMITTED, EMPHASIS IN ORIGINAL).     /7/  SEE CITY OF PHOENIX
V. KOLODZIEJSKI, 399 L.S. 204, 213-215 (1970); CIPRIANO V. CITY OF
HOUMA, 395 U.S. 701, 706 (1969); CF. TEHAN V. SHOTT, 382 U.S. 406
(1966), WHERE THE PROSECUTOR'S COMMENT ABOUT THE DEFENDANT'S FAILURE TO
TAKE THE STAND WAS AUTHORIZED, WHEN MADE, BY ART. I, SEC. 10, OF THE
CONSTITUTION OF OHIO AND OHIO REV. CODE SEC. 2945.43. 

JEROME M. FEIT ARGUED THE CAUSE FOR THE UNITED STATES ON THE
REARGUMENT.  PHILIP A. LACOVARA ARGUED THE CAUSE FOR THE UNITED STATES,
PRO HAC VICE, ON THE ORIGINAL ARGUMENT.  ON THE BRIEF WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, FRANCIS X.
BEYTAGH, JR., BEATRICE ROSENBERG, AND LAWRENCE P. COHEN. 

ANNA R. LAVIN REARGUED THE CAUSE FOR RESPONDENT.  WITH HER ON THE
BRIEFS WAS EDWARD J. CALIHAN, JR. 

CHARLES ALAN WRIGHT, MARVIN K. COLLIE, AND HARRY M. REASONER FILED A
BRIEF FOR JOSEPH P. LUCIA AS AMICUS CURIAE ON THE REARGUMENT. 
..END :









UNITED STATES V. WHITE, 401 U.S. 745 


       UNITED STATES V. WHITE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 13.  ARGUED NOVEMBER 10, 1969-- REARGUED OCTOBER 20,

           1970-- DECIDED APRIL 5, 1971 


RESPONDENT WAS CONVICTED IN 1966 OF NARCOTICS VIOLATIONS FOLLOWING A
TRIAL WHERE EVIDENCE WAS ADMITTED OF CERTAIN INCRIMINATING STATEMENTS
OF RESPONDENT THAT WERE OVERHEARD BY WARRANTLESS ELECTRONIC
EAVESDROPPING BY GOVERNMENT AGENTS BY MEANS OF A TRANSMITTER WHICH AN
INFORMER CONSENTED TO WEAR DURING HIS MEETINGS WITH RESPONDENT.  THE
INFORMER COULD NOT BE LOCATED AT TRIAL, AND THE TRIAL COURT OVERRULED
OBJECTIONS TO THE TESTIMONY OF THE AGENTS WHO CONDUCTED THE ELECTRONIC
SURVEILLANCE.  READING KATZ V. UNITED STATES, 389 U.S. 347 (1967), AS
OVERRULING ON LEE V. UNITED STATES, 343 U.S. 747 (1952), THE COURT OF
APPEALS HELD THAT THE AGENTS' TESTIMONY WAS IMPERMISSIBLE UNDER THE
FOURTH AMENDMENT, AND REVERSED RESPONDENT'S CONVICTION.  HELD:  THE
JUDGMENT IS REVERSED.  PP. 748-756. 

405 F.2D 838, REVERSED. 

MR. JUSTICE WHITE, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE STEWART,
AND MR. JUSTICE BLACKMUN, CONCLUDED THAT: 

1.  THE GOVERNMENT'S USE OF AGENTS WHO THEMSELVES MAY REVEAL THE
CONTENTS OF CONVERSATIONS WITH AN ACCUSED DOES NOT VIOLATE THE FOURTH
AMENDMENT, AND THISCOURT'S DECISION IN KATZ V. UNITED STATES, SUPRA,
DOES NOT DISTURB THE RATIONALE OF ON LEE, SUPRA, IN THIS RESPECT AND
REQUIRE A DIFFERENT RESULT BECAUSE THE AGENT USES ELECTRONIC EQUIPMENT
TO TRANSMIT THE CONVERSATIONS TO OTHER AGENTS.  PP. 748-754. 

2.  THE UNAVAILABILITY OF THE INFORMANT AS A WITNESS DOES NOT CREATE
ANY FOURTH AMENDMENT ISSUE.  PP. 753-754. 

3.  SINCE THE DECISION IN KATZ V. UNITED STATES, SUPRA, WAS NOT
RETROACTIVE, DESIST V. UNITED STATES, 394 U.S. 244, THE COURT OF
APPEALS ERRED IN NOT ADJUDICATING THIS CASE BY THE PRE-KATZ LAW
ESTABLISHED BY ON LEE TO THE EFFECT THAT THE ELECTRONIC SURVEILLANCE
DID NOT INVOLVE A FOURTH AMENDMENT VIOLATION.  P. 754. 

MR. JUSTICE BLACK CONCURRED IN THE JUDGMENT FOR THE REASONS SET
FORTH IN HIS DISSENT IN KATZ V. UNITED STATES, 389 H.S. 347, 364.  P.
754. 

MR. JUSTICE BRENNAN, TO THE EXTENT THAT HE JOINED IN THE COURT'S
JUDGMENT, CONCLUDED THAT DESIST V. UNITED STATES, SUPRA, REQUIRES
REVERSAL OF THE COURT OF APPEALS' JUDGMENT.  P. 755. 

WHITE, J., ANNOUNCED THE COURT'S JUDGMENT, AND DELIVERED AN OPINION
IN WHICH BURGER, C.J., AND STEWART AND BLACKMUN, JJ., JOINED.  BLACK,
J., FILED A STATEMENT CONCURRING IN THE JUDGMENT, POST, P. 754. 
BRENNAN, J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 755. 
DOUGLAS, J., POST, P. 756, HARLAN, J., POST, P. 768, AND MARSHALL, J.,
POST, P. 795, FILED DISSENTING OPINIONS. 

MR. JUSTICE WHITE ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE, MR. JUSTICE STEWART, AND MR. JUSTICE
BLACKMUN JOIN. 

IN 1966, RESPONDENT JAMES A. WHITE WAS TRIED AND CONVICTED UNDER TWO
CONSOLIDATED INDICTMENTS CHARGING VARIOUS ILLEGAL TRANSACTIONS IN
NARCOTICS VIOLATIVE OF 26 U.S.C. 4705(A) AND 21 U.S.C. 174.  HE WAS
FINED AND SENTENCED AS A SECOND OFFENDER TO 25-YEAR CONCURRENT
SENTENCES.  THE ISSUE BEFORE US IS WHETHER THE FOURTH AMENDMENT BARS
FROM EVIDENCE THE TESTIMONY OF GOVERNMENTAL AGENTS WHO RELATED CERTAIN
CONVERSATIONS WHICH HAD OCCURRED BETWEEN DEFENDANT WHITE AND A
GOVERNMENT INFORMANT, HARVEY JACKSON, AND WHICH THE AGENTS OVERHEARD BY
MONITORING THE FREQUENCY OF A RADIO TRANSMITTER CARRIED BY JACKSON AND
CONCEALED ON HIS PERSON.  /1/  ON FOUR OCCASIONS THE CONVERSATIONS TOOK
PLACE IN JACKSON'S HOME; EACH OF THESE CONVERSATIONS WAS OVERHEARD BY
AN AGENT CONCEALED IN A KITCHEN CLOSET WITH JACKSON'S CONSENT AND BY A
SECOND AGENT OUTSIDE THE HOUSE USING A RADIO RECEIVER.  FOUR OTHER
CONVERSATIONS-- ONE IN RESPONDENT'S HOME, ONE IN A RESTAURANT, AND TWO
IN JACKSON'S CAR-- WERE OVERHEARD BY THE USE OF RADIO EQUIPMENT.  THE
PROSECUTION WAS UNABLE TO LOCATE AND PRODUCE JACKSON AT THE TRIAL AND
THE TRIAL COURT OVERRULED OBJECTIONS TO THE TESTIMONY OF THE AGENTS WHO
CONDUCTED THE ELECTRONIC SURVEILLANCE.  THE JURY RETURNED A GUILTY
VERDICT AND DEFENDANT APPEALED. 

THE COURT OF APPEALS READ KATZ V. UNITED STATES, 389 U.S. 347
(1967), AS OVERRULING ON LEE V. UNITED STATES, 343 U.S. 747 (1952), AND
INTERPRETING THE FOURTH AMENDMENT TO FORBID THE INTRODUCTION OF THE
AGENTS' TESTIMONY IN THE CIRCUMSTANCES OF THIS CASE.  ACCORDINGLY, THE
COURT REVERSED BUT WITHOUT ADVERTING TO THE FACT THAT THE TRANSACTIONS
AT ISSUE HERE HAD OCCURRED BEFORE KATZ WAS DECIDED IN THIS COURT.  IN
OUR VIEW, THE COURT OF APPEALS MISINTERPRETED BOTH THE KATZ CASE AND
THE FOURTH AMENDMENT AND IN ANY EVENT ERRED IN APPLYING THE KATZ CASE
TO EVENTS THAT OCCURRED BEFORE THAT DECISION WAS RENDERED BY THIS
COURT.  /2/

I 

UNTIL KATZ V. UNITED STATES, NEITHER WIRETAPPING NOR ELECTRONIC
EAVESDROPPING VIOLATED A DEFENDANT'S FOURTH AMENDMENT RIGHTS "UNLESS
THERE HAS BEEN AN OFFICIAL SEARCH AND SEIZURE OF HIS PERSON, OR SUCH A
SEIZURE OF HIS PAPERS OR HIS TANGIBLE MATERIAL EFFECTS, OR AN ACTUAL
PHYSICAL INVASION OF HIS HOUSE 'OR CURTILAGE' FOR THE PURPOSE OF MAKING
A SEIZURE."  OLMSTEAD V. UNITED STATES, 277 U.S. 438, 466 (1928);
GOLDMAN V. UNITED STATES, 316 U.S. 129, 135-136 (1942).  BUT WHERE
"EAVESDROPPING WAS ACCOMPLISHED BY MEANS OF AN UNAUTHORIZED PHYSICAL
PENETRATION INTO THE PREMISES OCCUPIED" BY THE DEFENDANT, ALTHOUGH
FALLING SHORT OF A "TECHNICAL TRESPASS UNDER THE LOCAL PROPERTY LAW,"
THE FOURTH AMENDMENT WAS VIOLATED AND ANY EVIDENCE OF WHAT WAS SEEN AND
HEARD, AS WELL AS TANGIBLE OBJECTS SEIZED, WAS CONSIDERED THE
INADMISSIBLE FRUIT OF AN UNLAWFUL INVASION.  SILVERMAN V. UNITED
STATES, 365 U.S. 505, 509, 511 (1961); SEE ALSO WONG SUN V. UNITED
STATES, 371 U.S. 471 (1963); BERGER V. NEW YORK, 388 U.S. 41, 52
(1967); ALDERMAN V. UNITED STATES, 394 U.S. 165, 177-178 (1969). 

KATZ V. UNITED STATES, HOWEVER, FINALLY SWEPT AWAY DOCTRINES THAT
ELECTRONIC EAVESDROPPING IS PERMISSIBLE UNDER THE FOURTH AMENDMENT
UNLESS PHYSICAL INVASION OF A CONSTITUTIONALLY PROTECTED AREA PRODUCED
THE CHALLENGED EVIDENCE.  IN THAT CASE GOVERNMENT AGENTS, WITHOUT
PETITIONER'S CONSENT OR KNOWLEDGE, ATTACHED A LISTENING DEVICE TO THE
OUTSIDE OF A PUBLIC TELEPHONE BOOTH AND RECORDED THE DEFENDANT'S END OF
HIS TELEPHONE CONVERSATIONS.  IN DECLARING THE RECORDINGS INADMISSIBLE
IN EVIDENCE IN THE ABSENCE OF A WARRANT AUTHORIZING THE SURVEILLANCE,
THE COURT OVERRULED OLMSTEAD AND GOLDMAN AND HELD THAT THE ABSENCE OF
PHYSICAL INTRUSION INTO THE TELEPHONE BOOTH DID NOT JUSTIFY USING
ELECTRONIC DEVICES IN LISTENING TO AND RECORDING KATZ' WORDS, THEREBY
VIOLATING THE PRIVACY ON WHICH HE JUSTIFIABLY RELIED WHILE USING THE
TELEPHONE IN THOSE CIRCUMSTANCES. 

THE COURT OF APPEALS UNDERSTOOD KATZ TO RENDER INADMISSIBLE AGAINST
WHITE THE AGENTS' TESTIMONY CONCERNING CONVERSATIONS THAT JACKSON
BROADCAST TO THEM.  WE CANNOT AGREE.  KATZ INVOLVED NO REVELATION TO
THE GOVERNMENT BY A PARTY TO CONVERSATIONS WITH THE DEFENDANT NOR DID
THE COURT INDICATE IN ANY WAY THAT A DEFENDANT HAS A JUSTIFIABLE AND
CONSTITUTIONALLY PROTECTED EXPECTATION THAT A PERSON WITH WHOM HE IS
CONVERSING WILL NOT THEN OR LATER REVEAL THE CONVERSATION TO THE
POLICE. 

HOFFA V. UNITED STATES, 385 U.S. 293 (1966), WHICH WAS LEFT
UNDISTURBED BY KATZ, HELD THAT HOWEVER STRONGLY A DEFENDANT MAY TRUST
AN APPARENT COLLEAGUE, HIS EXPECTATIONS IN THIS RESPECT ARE NOT
PROTECTED BY THE FOURTH AMENDMENT WHEN IT TURNS OUT THAT THE COLLEAGUE
IS A GOVERNMENT AGENT REGULARLY COMMUNICATING WITH THE AUTHORITIES.  IN
THESE CIRCUMSTANCES, "NO INTEREST LEGITIMATELY PROTECTED BY THE FOURTH
AMENDMENT IS INVOLVED," FOR THAT AMENDMENT AFFORDS NO PROTECTION TO "A
WRONGDOER'S MISPLACED BELIEF THAT A PERSON TO WHOM HE VOLUNTARILY
CONFIDES HIS WRONGDOING WILL NOT REVEAL IT."  HOFFA V. UNITED STATES,
AT 302.  NO WARRANT TO "SEARCH AND SEIZE" IS REQUIRED IN SUCH
CIRCUMSTANCES, NOR IS IT WHEN THE GOVERNMENT SENDS TO DEFENDANT'S HOME
A SECRET AGENT WHO CONCEALS HIS IDENTITY AND MAKES A PURCHASE OF
NARCOTICS FROM THE ACCUSED, LEWIS V. UNITED STATES, 385 U.S. 206
(1966), OR WHEN THE SAME AGENT, UNBEKNOWN TO THE DEFENDANT, CARRIES
ELECTRONIC EQUIPMENT TO RECORD THE DEFENDANT'S WORDS AND THE EVIDENCE
SO GATHERED IS LATER OFFERED IN EVIDENCE.  LOPEZ V. UNITED STATES, 373
U.S. 427 (1963). 

CONCEDING THAT HOFFA, LEWIS, AND LOPEZ REMAINED UNAFFECTED BY KATZ,
/3/  THE COURT OF APPEALS NEVERTHELESS READ BOTH KATZ AND THE FOURTH
AMENDMENT TO REQUIRE A DIFFERENT RESULT IF THE AGENT NOT ONLY RECORDS
HIS CONVERSATIONS WITH THE DEFENDANT BUT INSTANTANEOUSLY TRANSMITS THEM
ELECTRONICALLY TO OTHER AGENTS EQUIPPED WITH RADIO RECEIVERS.  WHERE
THIS OCCURS, THE COURT OF APPEALS HELD, THE FOURTH AMENDMENT IS
VIOLATED AND THE TESTIMONY OF THE LISTENING AGENTS MUST BE EXCLUDED
FROM EVIDENCE. 

TO REACH THIS RESULT IT WAS NECESSARY FOR THE COURT OF APPEALS TO
HOLD THAT ON LEE V. UNITED STATES WAS NO LONGER GOOD LAW.  IN THAT
CASE, WHICH INVOLVED FACTS VERY SIMILAR TO THE CASE BEFORE US, THE
COURT FIRST REJECTED CLAIMS OF A FOURTH AMENDMENT VIOLATION BECAUSE THE
INFORMER HAD NOT TRESPASSED WHEN HE ENTERED THE DEFENDANT'S PREMISES
AND CONVERSED WITH HIM.  TO THIS EXTENT THE COURT'S RATIONALE CANNOT
SURVIVE KATZ.  SEE 389 U.S.,AT 352-353.  BUT THE COURT ANNOUNCED A
SECOND AND INDEPENDENT GROUND FOR ITS DECISION; FOR IT WENT ON TO SAY
THAT OVERRULING OLMSTEAD AND GOLDMAN WOULD BE OF NO AID TO ON LEE SINCE
HE "WAS TALKING CONFIDENTIALLY AND INDISCREETLY WITH ONE HE TRUSTED,
AND HE WAS OVERHEARD . . . . IT WOULD BE A DUBIOUS SERVICE TO THE
GENUINE LIBERTIES PROTECTED BY THE FOURTH AMENDMENT TO MAKE THEM
BEDFELLOWS WITH SPURIOUS LIBERTIES IMPROVISED BY FARFETCHED ANALOGIES
WHICH WOULD LIKEN EAVESDROPPING ON A CONVERSATION, WITH THE CONNIVANCE
OF ONE OF THE PARTIES, TO AN UNREASONABLE SEARCH OR SEIZURE.  WE FIND
NO VIOLATION OF THE FOURTH AMENDMENT HERE."  343 U.S.,AT 753-754.  WE
SEE NO INDICATION IN KATZ THAT THE COURT MEANT TO DISTURB THAT
UNDERSTANDING OF THE FOURTH AMENDMENT OR TO DISTURB THE RESULT REACHED
IN THE ON LEE CASE, /4/  NOR ARE WE NOW INCLINED TO OVERTURN THIS VIEW
OF THE FOURTH AMENDMENT. 

CONCEDEDLY A POLICE AGENT WHO CONCEALS HIS POLICE CONNECTIONS MAY
WRITE DOWN FOR OFFICIAL USE HIS CONVERSATIONS WITH A DEFENDANT AND
TESTIFY CONCERNING THEM, WITHOUT A WARRANT AUTHORIZING HIS ENCOUNTERS
WITH THE DEFENDANT AND WITHOUT OTHERWISE VIOLATING THE LATTER'S FOURTH
AMENDMENT RIGHTS.  HOFFA V. UNITED STATES, 385 U.S.,AT 300-303.  FOR
CONSTITUTIONAL PURPOSES, NO DIFFERENT RESULT IS REQUIRED IF THE AGENT
INSTEAD OF IMMEDIATELY REPORTING AND TRANSCRIBING HIS CONVERSATIONS
WITH DEFENDANT, EITHER (1) SIMULTANEOUSLY RECORDS THEM WITH ELECTRONIC
EQUIPMENT WHICH HE IS CARRYING ON HIS PERSON, LOPEZ V. UNITED STATES,
SUPRA; (2) OR CARRIES RADIO EQUIPMENT WHICH SIMULTANEOUSLY TRANSMITS
THE CONVERSATIONS EITHER TO RECORDING EQUIPMENT LOCATED ELSEWHERE OR TO
OTHER AGENTS MONITORING THE TRANSMITTING FREQUENCY.  ON LEE V. UNITED
STATES, SUPRA.  IF THE CONDUCT AND REVELATIONS OF AN AGENT OPERATING
WITHOUT ELECTRONIC EQUIPMENT DO NOT INVADE THE DEFENDANT'S
CONSTITUTIONALLY JUSTIFIABLE EXPECTATIONS OF PRIVACY, NEITHER DOES A
SIMULTANEOUS RECORDING OF THE SAME CONVERSATIONS MADE BY THE AGENT OR
BY OTHERS FROM TRANSMISSIONS RECEIVED FROM THE AGENT TO WHOM THE
DEFENDANT IS TALKING AND WHOSE TRUSTWORTHINESS THE DEFENDANT
NECESSARILY RISKS. 

OUR PROBLEM IS NOT WHAT THE PRIVACY EXPECTATIONS OF PARTICULAR
DEFENDANTS IN PARTICULAR SITUATONS MAY BE OR THE EXTENT TO WHICH THEY
MAY IN FACT HAVE RELIED ON THE DISCRETION OF THEIR COMPANIONS.  VERY
PROBABLY, INDIVIDUAL DEFENDANTS NEITHER KNOW NOR SUSPECT THAT THEIR
COLLEAGUES HAVE GONE OR WILL GO TO THE POLICE OR ARE CARRYING RECORDERS
OR TRANSMITTERS.  OTHERWISE, CONVERSATION WOULD CEASE AND OUR AND OUR
PROBLEM WITH THESE ENCOUNTERS WOULD BE NONEXISTENT OR FAR DIFFERENT
FROM THOSE NOW BEFORE US.  OUR PROBLEM, IN TERMS OF THE PRINCIPLES
ANNOUNCED IN KATZ, IS WHAT EXPECTATIONS OF PRIVACY ARE CONSTITUTIONALLY
"JUSTIFIABLE"-- WHAT EXPECTATIONS THE FOURTH AMENDMENT WILL PROTECT IN
THE ABSENCE OF A WARRANT.  SO FAR, THE LAW PERMITS THE FRUSTRATION OF
ACTUAL EXPECTATIONS OF PRIVACY BY PERMITTING AUTHORITIES TO USE THE
TESTIMONY OF THOSE ASSOCIATES WHO FOR ONE REASON OR ANOTHER HAVE
DETERMINED TO TURN TO THE POLICE, AS WELL AS BY AUTHORIZING THE USE OF
INFORMANTS IN THE MANNER EXEMPLIFIED BY HOFFA AND LEWIS.  IF THE LAW
GIVES NO PROTECTION TO THE WRONGDOER WHOSE TRUSTED ACCOMPLICE IS OR
BECOMES A POLICE AGENT, NEITHER SHOULD IT PROTECT HIM WHEN THAT SAME
AGENT HAS RECORDED OR TRANSMITTED THE CONVERSATIONS WHICH ARE LATER
OFFERED IN EVIDENCE TO PROVE THE STATE'S CASE.  SEE LOPEZ V. UNITED
STATES, 373 U.S. 427 (1963). 

INESCAPABLY, ONE CONTEMPLATING ILLEGAL ACTIVITIES MUST REALIZE AND
RISK THAT HIS COMPANIONS MAY BE REPORTING TO THE POLICE.  IF HE
SUFFICIENTLY DOUBTS THEIR TRUSTWORTHINESS, THE ASSOCIATION WILL VERY
PROBABLY END OR NEVER MATERIALIZE.  BUT IF HE HAS NO DOUBTS, OR ALLAYS
THEM, OR RISKS WHAT DOUBT HE HAS, THE RISK IS HIS.  IN TERMS OF WHAT
HIS COURSE WILL BE, WHAT HE WILL OR WILL NOT DO OR SAY, WE ARE
UNPERSUADED THAT HE WOULD DISTINGUISH BETWEEN PROBABLE INFORMERS ON THE
ONE HAND AND PROBABLE INFORMERS WITH TRANSMITTERS ON THE OTHER.  GIVEN
THE POSSIBILITY OR PROBABILITY THAT ONE OF HIS COLLEAGUES IS
COOPERATING WITH THE POLICE, IT IS ONLY SPECULATION TO ASSERT THAT THE
DEFENDANT'S UTTERANCES WOULD BE SUBSTANTIALLY DIFFERENT OR HIS SENSE OF
SECURITY ANY LESS IF HE ALSO THOUGHT IT POSSIBLE THAT THE SUSPECTED
COLLEAGUE IS WIRED FOR SOUND.  AT LEAST THERE IS NO PERSUASIVE EVIDENCE
THAT THE DIFFERENCE IN THIS RESPECT BETWEEN THE ELECTRONICALLY EQUIPPED
AND THE UNEQUIPPED AGENT IS SUBSTANTIAL ENOUGH TO REQUIRE DISCRETE
CONSTITUTIONAL RECOGNITION, PARTICULARLY UNDER THE FOURTH AMENDMENT
WHICH IS RULED BY FLUID CONCEPTS OF "REASONABLENESS." 

NOR SHOULD WE BE TOO READY TO ERECT CONSTITUTIONAL BARRIERS TO
RELEVANT AND PROBATIVE EVIDENCE WHICH IS ALSO ACCURATE AND RELIABLE. 
AN ELECTRONIC RECORDING WILL MANY TIMES PRODUCE A MORE RELIABLE
RENDITION OF WHAT A DEFENDANT HAS SAID THAN WILL THE UNAIDED MEMORY OF
A POLICE AGENT.  IT MAY ALSO BE THAT WITH THE RECORDING IN EXISTENCE IT
IS LESS LIKELY THAT THE INFORMANT WILL CHANGE HIS MIND, LESS CHANCE
THAT THREAT OR INJURY WILL SUPPRESS UNFAVORABLE EVIDENCE AND LESS
CHANCE THAT CROSS-EXAMINATION WILL CONFOUND THE TESTIMONY. 
CONSIDERATIONS LIKE THESE OBVIOUSLY DO NOT FAVOR THE DEFENDANT, BUT WE
ARE NOT PREPARED TO HOLD THAT A DEFENDANT WHO HAS NO CONSTITUTIONAL
RIGHT TO EXCLUDE THE INFORMER'S UNAIDED TESTIMONY NEVERTHELESS HAS A
FOURTH AMENDMENT PRIVILEGE AGAINST A MORE ACCURATE VERSION OF THE
EVENTS IN QUESTION. 

IT IS THUS UNTENABLE TO CONSIDER THE ACTIVITIES AND REPORTS OF THE
POLICE AGENT HIMSELF, THOUGH ACTING WITHOUT A WARRANT, TO BE A
"REASONABLE" INVESTIGATIVE EFFORT AND LAWFUL UNDER THE FOURTH AMENDMENT
BUT TO VIEW THE SAME AGENT WITH A RECORDER OR TRANSMITTER AS CONDUCTING
AN "UNREASONABLE" AND UNCONSTITUTIONAL SEARCH AND SEIZURE.  OUR OPINION
IS CURRENTLY SHARED BY CONGRESS AND THE EXECUTIVE BRANCH TITLE III,
OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, 82 STAT. 212, 18
U.S.C. 2510 ET SEQ. (9164 ED., SUPP. V), AND THE AMERICAN BAR
ASSOCIATION.  PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, ELECTRONIC
SURVEILLANCE SEC. 4.1 (APPROVED DRAFT 1971).  IT IS ALSO THE RESULT
REACHED BY PRIOR CASES IN THIS COURT.  ON LEE, SUPRA; LOPEZ V. UNITED
STATES, SUPRA. 

NO DIFFERENT RESULT SHOULD OBTAIN WHERE, AS IN ON LEE AND THE
INSTANT CASE, THE INFORMER DISAPPEARS AND IS UNAVAILABLE AT TRIAL; FOR
THE ISSUE OF WHETHER SPECIFIED EVENTS ON A CERTAIN DAY VIOLATE THE
FOURTH AMENDMENT SHOULD NOT BE DETERMINED BY WHAT LATER HAPPENS TO THE
INFORMER.  HIS UNAVAILABILITY AT TRIAL AND PROFFERING THE TESTIMONY OF
OTHER AGENTS MAY RAISE EVIDENTIARY PROBLEMS OR POSE ISSUES OF
PROSECUTORIAL MISCONDUCT WITH RESPECT TO THE INFORMER'S DISAPPEARANCE,
BUT THEY DO NOT APPEAR CRITICAL TO DECIDING WHETHER PRIOR EVENTS
INVADED THE DEFENDANT'S FOURTH AMENDMENT RIGHTS.              II 

THE COURT OF APPEALS WAS IN ERROR FOR ANOTHER REASON.  IN DESIST V.
UNITED STATES, 394 U.S. 244 (1969), WE HELD THAT OUR DECISION IN KATZ
V. UNITED STATES APPLIED ONLY TO THOSE ELECTRONIC SURVEILLANCES THAT
OCCURRED SUBSEQUENT TO THE DATE OF THAT DECISION.  HERE THE EVENTS IN
QUESTION TOOK PLACE IN LATE 1965 AND EARLY 1966, LONG PRIOR TO KATZ. 
WE ADHERE TO THE RATIONALE OF DESIST, SEE WILLIAMS V. UNITED STATES,
ANTE, P. 646.  IT WAS ERROR FOR THE COURT OF APPEALS TO DISPOSE OF THIS
CASE BASED ON ITS UNDERSTANDING OF THE PRINCIPLES ANNOUNCED IN THE KATZ
CASE.  THE COURT SHOULD HAVE JUDGED THIS CASE BY THE PRE-KATZ LAW AND
UNDER THAT LAW, AS ON LEE CLEARLY HOLDS, THE ELECTRONIC SURVEILLANCE
HERE INVOLVED DID NOT VIOLATE WHITE'S RIGHTS TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

      IT IS SO ORDERED. 

/1/  WHITE ARGUES THAT JACKSON, THOUGH ADMITTEDLY "COGNIZANT" OF THE
PRESENCE OF TRANSMITTING DEVICES ON HIS PERSON, DID NOT VOLUNTARILY
CONSENT THERETO.  BECAUSE THE COURT BELOW DID NOT REACH THE ISSUE OF
JACKSON'S CONSENT, WE DECLINE TO DO SO.  SIMILARLY, WE DO NOT CONSIDER
WHITE'S CLAIM THAT THE GOVERNMENT'S ACTIONS VIOLATED STATE LAW. 

/2/  A PANEL OF THREE JUDGES ON MARCH 18, 1968, REVERSED THE
CONVICTION, ONE JUDGE DISSENTING.  A REHEARING EN BANC WAS GRANTED, AND
ON JANUARY 7, 1969, THE FULL COURT FOLLOWED THE PANEL'S DECISION, THREE
JUDGES DISSENTING.  405 F.2D 838. 

/3/  IT FOLLOWS FROM OUR OPINION THAT WE REJECT RESPONDENT'S
CONTENTIONS THAT LOPEZ SHOULD BE OVERRULED. 

/4/  OTHER COURTS OF APPEALS HAVE CONSIDERED ON LEE VIABLE DESPITE
KATZ.  DANCY V. UNITED STATES, 390 F.2D 370 (CA5 1968); LONG V. UNITED
STATES, 387 F.2D 377 (CA5 1967); KORAN V. UNITED STATES, 408 F.2D 1321
(CA5 1969).  SEE ALSO UNITED STATES V. KAUFER, 406 F.2D 550 (CA2),
AFF'D PER CURIAM, 394 T.S. 458 (1969); UNITED STATES V. JACKSON, 390
F.2D 317 (CA2 1968); DOTY V. UNITED STATES, 416 F.2D 887 (CA10 1968),
ID., AT 893 (REHEARING 1969). 

MR. JUSTICE BLACK, WHILE ADHERING TO HIS VIEWS EXPRESSED IN
LINKLETTER V. WALKER, 381 U.S. 618, 640 (1965), CONCURS IN THE JUDGMENT
OF THE COURT FOR THE REASONS SET FORTH IN HIS DISSENT IN KATZ V. UNITED
STATES, 389 U.S. 347, 364 (1967). 

MR. JUSTICE BRENNAN, CONCURRING IN THE RESULT. 

I AGREE THAT DESIST V. UNITED STATES, 394 D.S. 244 (1969), REQUIRES
REVERSAL OF THE JUDGMENT OF THE COURT OF APPEALS.  THEREFORE, A
MAJORITY OF THE COURT SUPPORTS DISPOSITION OF THIS CASE ON THAT
GROUND.  HOWEVER, MY BROTHERS DOUGLAS, HARLAN, AND WHITE ALSO DEBATE
THE QUESTION WHETHER ON LEE V. UNITED STATES, 343 U.S. 747 (1952), MAY
ANY LONGER BE REGARDED AS SOUND LAW.  MY BROTHER WHITE ARGUES THAT ON
LEE IS STILL SOUND LAW.  MY BROTHERS DOUGLAS AND HARLAN ARGUE THAT IT
IS NOT.  NEITHER POSITION COMMANDS THE SUPPORT OF A MAJORITY OF THE
COURT.  FOR MYSELF, I AGREE WITH MY BROTHERS DOUGLAS AND HARLAN.  BUT I
GO FURTHER.  IT IS MY VIEW THAT THE REASONING OF BOTH MY BROTHERS
DOUGLAS AND HARLAN COMPELS THE CONCLUSION THAT LOPEZ V. UNITED STATES,
373 U.S. 427 (1963), IS ALSO NO LONGER SOUND LAW.  IN OTHER WORDS, IT
IS MY VIEW THAT CURRENT FOURTH AMENDMENT JURISPRUDENCE INTERPOSES A
WARRANT REQUIREMENT NOT ONLY IN CASES OF THIRD-PARTY ELECTRONIC
MONITORING (THE SITUATION IN ON LEE AND IN THIS CASE) BUT ALSO IN CASES
OF ELECTRONIC RECORDING BY A GOVERNMENT AGENT OF A FACE-TO-FACE
CONVERSATION WITH A CRIMINAL SUSPECT, WHICH WAS THE SITUATION IN
LOPEZ.  FOR I ADHERE TO THE DISSENT IN LOPEZ, 373 U.S.,AT 446-471, IN
WHICH, TO QUOTE MY BROTHER HARLAN, POST, AT 778 N. 12, "THE DOCTRINAL
BASIS OF OUR SUBSEQUENT FOURTEENTH AMENDMENT DECISIONS MAY BE SAID TO
HAVE HAD ITS GENESIS."  KATZ V. UNITED STATES, 389 U.S. 347 (1967),
ADOPTED THAT "DOCTRINAL BASIS" AND THUS, IT SEEMS TO ME, AGREED WITH
THE ARGUMENT IN THE LOPEZ DISSENT THAT "SUBSEQUENT DECISIONS AND
SUBSEQUENT EXPERIENCE HAVE SAPPED WHATEVER VITALITY (ON LEE) MAY ONCE
HAVE HAD; THAT IT SHOULD NOW BE REGARDED AS OVERRULED" AND THAT THE
SITUATION IN LOPEZ "IS RATIONALLY INDISTINGUISHABLE."  373 U.S.,AT
447.  THE REASONS IN SUPPORT OF THOSE CONCLUSIONS ARE SET FORTH FULLY
IN THE LOPEZ DISSENT AND NEED NOT BE REPEATED HERE.  IT SUFFICES TO SAY
THAT FOR THOSE REASONS I REMAIN OF THE VIEW THAT THE FOURTH AMENDMENT
IMPOSES THE WARRANT REQUIREMENT IN BOTH THE ON LEE AND LOPEZ
SITUATIONS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

        I 

THE ISSUE IN THIS CASE IS CLOUDED AND CONCEALED BY THE VERY
DISCUSSION OF IT IN LEGALISTIC TERMS.  WHAT THE ANCIENTS KNEW AS
"EAVESDROPPING," WE NOW CALL "ELECTRONIC SURVEILLANCE"; BUT TO EQUATE
THE TWO IS TO TREAT MAN'S FIRST GUNPOWDER ON THE SAME LEVEL AS THE
NUCLEAR BOMB.  ELECTRONIC SURVEILLANCE IS THE GREATEST LEVELER OF HUMAN
PRIVACY EVER KNOWN.  HOW MOST FORMS OF IT CAN BE HELD "REASONABLE"
WITHIN THE MEANING OF THE FOURTH AMENDMENT IS A MYSTERY.  TO BE SURE,
THE CONSTITUTION AND BILL OF RIGHTS ARE NOT TO BE READ AS COVERING ONLY
THE TECHNOLOGY KNOWN IN THE 18TH CENTURY.  OTHERWISE ITS CONCEPT OF
"COMMERCE" WOULD BE HOPELESS WHEN IT COMES TO THE MANAGEMENT OF MODERN
AFFAIRS.  AT THE SAME TIME THE CONCEPTS OF PRIVACY WHICH THE FOUNDERS
ENSHRINED IN THE FOURTH AMENDMENT VANISH COMPLETELY WHEN WE SLAVISHLY
ALLOW AN ALL-POWERFUL GOVERNMENT, PROCLAIMING LAW AND ORDER,
EFFICIENCY, AND OTHER BENIGN PURPOSES, TO PENETRATE ALL THE WALLS AND
DOORS WHICH MEN NEED TO SHIELD THEM FROM THE PRESSURES OF A TURBULENT
LIFE AROUND THEM AND GIVE THEM THE HEALTH AND STRENGTH TO CARRY ON. 

THAT IS WHY A "STRICT CONSTRUCTION" OF THE FOURTH AMENDMENT IS
NECESSARY IF EVERY MAN'S LIBERTY AND PRIVACY ARE TO BE CONSTITUTIONALLY
HONORED. 

WHEN FRANKLIN D. ROOSEVELT ON MAY 21, 1940, AUTHORIZED WIRETAPPING
IN CASES OF "FIFTH COLUMN" ACTIVITIES AND SABOTAGE AND LIMITED IT
"INSOFAR AS POSSIBLE TO ALIENS," HE SAID THAT "UNDER ORDINARY AND
NORMAL CIRCUMSTANCES WIRE-TAPPING BY GOVERNMENT AGENTS SHOULD NOT BE
CARRIED ON FOR THE EXCELLENT REASON THAT IT IS ALMOST BOUND TO LEAD TO
ABUSE OF CIVIL RIGHTS."  SEE APPENDIX I TO THIS DISSENT.  YET AS JUDGE
FERGUSON SAID IN UNITED STATES V. SMITH, 321 F.SUPP.  424, 429: 

     "(THE GOVERNMENT SEEMS TO APPROACH THESE DISSIDENT DOMESTIC

  ORGANIZATIONS IN THE SAME FASHION AS IT DEALS WITH UNFRIENDLY

  FOREIGN POWERS.  THE GOVERNMENT CANNOT ACT IN THIS MANNER WHEN

  ONLY DOMESTIC POLITICAL ORGANIZATIONS ARE INVOLVED, EVEN IF THOSE

  ORGANIZATIONS ESPOUSE VIEWS WHICH ARE INCONSISTENT WITH OUR

PRESENT FORM OF GOVERNMENT.  TO DO SO IS TO RIDE ROUGHSHOD OVER

  NUMEROUS POLITICAL FREEDOMS WHICH HAVE LONG RECEIVED

  CONSTITUTIONAL PROTECTION.  THE GOVERNMENT CAN, OF COURSE,

  INVESTIGATE AND PROSECUTE CRIMINAL VIOLATIONS WHENEVER THESE

  ORGANIZATIONS, OR RATHER THEIR INDIVIDUAL MEMBERS, STEP OVER THE

  LINE OF POLITICAL THEORY AND GENERAL ADVOCACY AND COMMIT ILLEGAL

  ACTS." 

TODAY NO ONE PERHAPS NOTICES BECAUSE ONLY A SMALL, OBSCURE CRIMINAL
IS THE VICTIM.  BUT EVERY PERSON IS THE VICTIM, FOR THE TECHNOLOGY WE
EXALT TODAY IS EVERYMAN'S MASTER.  ANY DOUBTERS SHOULD READ ARTHUR R.
MILLER'S THE ASSAULT ON PRIVACY (1971).  AFTER DESCRIBING THE
MONITORING OF CONVERSATIONS AND THEIR STORAGE IN DATA BANKS, PROFESSOR
MILLER GOES ON TO DESCRIBE "HUMAN MONITORING" WHICH HE CALLS THE
"ULTIMATE STEP IN MECHANICAL SNOOPING"-- A DEVICE FOR SPOTTING
UNORTHODOX OR ABERRATIONAL BEHAVIOR ACROSS A WIDE SPECTRUM.  "GIVEN THE
ADVANCING STATE OF BOTH THE REMOTE SENSING ART AND THE CAPACITY OF
COMPUTERS TO HANDLE AN UNINTERRUPTED AND SYMOPTIC DATA FLOW, THERE SEEM
TO BE NO PHYSICAL BARRIERS LEFT TO SHIELD US FROM INTRUSION."  ID., AT
46. 

WHEN ONE READS WHAT IS GOING ON IN THIS AREA TODAY, OUR JUDICIAL
TREATMENT OF THE SUBJECT SEEM AS REMOTE FROM REALITY AS THE WELL-KNOWN
BARON PARKE WAS REMOTE FROM THE SOCIAL PROBLEMS OF HIS DAY.  SEE
CHAPMAN, "BIG BROTHER" IN THE JUSTICE DEPARTMENT, THE PROGRESSIVE,
APRIL 1971, P. 27. 

        II 

WE HELD IN BERGER V. NEW YORK, 388 U.S. 41, THAT WIRETAPPING IS A
SEARCH AND SEIZURE WITHIN THE MEANING OF THE FOURTH AMENDMENT AND
THEREFORE MUST MEET ITS REQUIREMENTS, VIZ., THERE MUST BE A PRIOR
SHOWING OF PROBABLE CAUSE, THE WARRANT AUTHORIZING THE WIRETAP MUST
PARTICULARLY DESCRIBE "THE PLACE TO BE SEARCHED, AND THE PERSONS OR
THINGS TO BE SEIZED," AND THAT IT MAY NOT HAVE THE BREADTH, GENERALITY,
AND LONG LIFE OF THE GENERAL WARRANT AGAINST WHICH THE FOURTH AMENDMENT
WAS AIMED. 

IN KATZ V. UNITED STATES, 389 U.S. 347, WE HELD THAT AN ELECTRONIC
DEVICE, USED WITHOUT TRESPASS ONTO ANY GIVEN ENCLOSURE (THERE A
TELEPHONE BOOTH), WAS A SEARCH FOR WHICH A FOURTH AMENDMENT WARRANT WAS
NEEDED.  /1/  MR. JUSTICE STEWART, SPEAKING FOR THE COURT, SAID:
"WHEREVER A MAN MAY BE, HE IS ENTITLED TO KNOW THAT HE WILL REMAIN FREE
FROM UNREASONABLE SEARCHES AND SEIZURES."  ID., AT 359. 

AS A RESULT OF BERGER AND OF KATZ, BOTH WIRETAPPING AND ELECTRONIC
SURVEILLANCE THROUGH A "BUG" OR OTHER DEVICE ARE NOW COVERED BY THE
FOURTH AMENDMENT. 

THERE WERE PRIOR DECISIONS REPRESENTING AN OPPOSED VIEW.  IN ON LEE
V. UNITED STATES, 343 U.S. 747, AN UNDERCOVER AGENT WITH A RADIO
TRANSMITTER CONCEALED ON HIS PERSON INTERVIEWED THE DEFENDANT WHOSE
WORDS WERE HEARD OVER A RADIO RECEIVER BY ANOTHER AGENT DOWN THE
STREET.  THE IDEA, DISCREDITED BY KATZ, THERE THERE WAS NO VIOLATION OF
THE FOURTH AMENDMENT BECAUSE THERE WAS NO TRESPASS, WAS THE CORE OF THE
ON LEE DECISION.  ID., AT 751-754. 

LOPEZ V. UNITED STATES, 373 U.S. 427, WAS ALSO PRE-BERGER AND PRE
KATZ.  THE GOVERNMENT AGENT THERE INVOLVED CARRIED A POCKET WIRE
RECORDER WHICH THE COURT SAID "WAS NOT PLANTED BY MEANS OF AN UNLAWFUL
PHYSICAL INVASION OF PETITIONER'S PREMISES UNDER CIRCUMSTANCES WHICH
WOULD VIOLATE THE FOURTH AMENDMENT."  ID., AT 439. 

MR. JUSTICE BRENNAN, DISSENTING, STATED THE PHILOSOPHY OF KATZ SOON
TO BE ADOPTED: 

     "(THERE IS A QUALITATIVE DIFFERENCE BETWEEN ELECTRONIC

  SURVEILLANCE, WHETHER THE AGENTS CONCEAL THE DEVICES ON THEIR

  PERSONS OR IN WALLS OR UNDER BEDS, AND CONVENTIONAL POLICE

  STRATAGEMS SUCH AS EAVESDROPPING AND DISGUISE.  THE LATTER DO NOT

  SO SERIOUSLY INTRUDE UPON THE RIGHT OF PRIVACY.  THE RISK OF

  BEING OVERHEARD BY AN EAVESDROPPER OR BETRAYED BY AN INFORMER OR

  DECEIVED AS TO THE IDENTITY OF ONE WITH WHOM ONE DEALS IS

  PROBABLY INHERENT IN THE CONDITIONS OF HUMAN SOCIETY.  IT IS THE

  KIND OF RISK WE NECESSARILY ASSUME WHENEVER WE SPEAK.  BUT AS

SOON AS ELECTRONIC SURVEILLANCE COMES INTO PLAY, THE RISK CHANGES

  CRUCIALLY.  THERE IS NO SECURITY FROM THAT KIND OF EAVESDRPPING,

  NO WAY OF MITIGATING THE RISK, AND SO NOT EVEN A RESIDUUM OF TRUE

  PRIVACY . . . 

      " . . . ELECTRONIC AIDS ADD A WHOLLY NEW DIMENSION TO

  EAVESDROPPING.  THEY MAKE IT MORE PENETRATING, MORE

INDISCRIMINATE, MORE TRULY OBNOXIOUS TO A FREE SOCIETY. 

 ELECTRONIC SURVEILLANCE, IN FACT, MAKES THE POLICE OMNISCIENT;

  AND POLICE OMNISCIENCE IS ONE OF THE MOST EFFECTIVE TOOLS OF

  TYRANNY."  373 U.S.,AT 465-466. 

IT IS URGED BY THE DEPARTMENT OF JUSTICE THAT ON LEE BE ESTABLISHED
AS THE CONTROLLING DECISION IN THIS FIELD.  I WOULD STAND BY BERGER AND
KATZ AND REAFFIRM THE NEED FOR JUDICIAL SUPERVISION /2/  UNDER THE
FOURTH AMENDMENT OF THE USE OF ELECTRONIC SURVEILLANCE WHICH,
UNCONTROLLED, PROMISES TO LEAD US INTO A POLICE STATE. 

THESE WERE WHOLLY PRE-ARRANGED EPISODES OF SURVEILLANCE.  THE FIRST
WAS IN THE INFORMANT'S HOME TO WHICH RESPONDENT HAD BEEN INVITED.  THE
SECOND WAS ALSO IN THE INFORMER'S HOME, THE NEXT DAY.  THE THIRD WAS
FOUR DAYS LATER AT THE HOME OF THE RESPONDENT.  THE FOURTH WAS IN THE
INFORMER'S CAR TWO DAYS LATER.  TWELVE DAYS AFTER THAT A MEETING IN THE
INFORMER'S HOME WAS INTRUDED UPON.  THE SIXTH OCCURRED AT A STREET
RENDEZVOUS.  THE SEVENTH WAS IN THE INFORMER'S HOME AND THE EIGHTH IN A
RESTAURANT OWNED BY RESPONDENT'S MOTHER-IN-LAW.  SO FAR AS TIME IS
CONCERNED THERE IS NO EXCUSE FOR NOT SEEKING A WARRANT.  AND WHILE
THERE IS ALWAYS AN EFFORT INVOLVED IN PREPARING AFFIDAVITS OR OTHER
EVIDENCE IN SUPPORT OF A SHOWING OF PROBABLE CAUSE, THAT BURDEN WAS
GIVEN CONSTITUTIONAL SANCTION IN THE FOURTH AMENDMENT AGAINST THE
ACTIVITIES OF THE AGENTS OF GEORGE III.  IT WAS DESIGNED NOT TO PROTECT
CRIMINALS BUT TO PROTECT EVERYONE'S PRIVACY. 

ON LEE AND LOPEZ ARE OF A VINTAGE OPPOSED TO BERGER AND KATZ. 
HOWEVER THEY MAY BE EXPLAINED, THEY ARE PRODUCTS OF THE OLD COMMON-LAW
NOTIONS OF TRESPASS.  KATZ, ON THE OTHER HAND, EMPHASIZED THAT WITH FEW
EXCEPTIONS "SEARCHES CONDUCTED OUTSIDE THE JUDICIAL PROCESS, WITHOUT
PRIOR APPROVAL BY JUDGE OR MAGISTRATE, ARE PER SE UNREASONABLE UNDER
THE FOURTH AMENDMENT . . . "  389 U.S.,AT 357.  CAMARA V. MUNICIPAL
COURT, 387 U.S. 523, PUT ADMINISTRATIVE SEARCHES UNDER THE FOURTH
AMENDMENT.  WE HELD THAT ADMINISTRATIVE ACTIONS, LIKE OTHER SEARCHES,
IMPLICATED OFFICIALS IN AN INVASION OF PRIVACY AND THAT THE FOURTH
AMENDMENT WAS MEANT TO GUARD AGAINST THE ARBITRARINESS OF ANY SUCH
INVASION.  WE SAID: 

"WE SIMPLY CANNOT SAY THAT THE PROTECTIONS PROVIDED BY THE WARRANT
PROCEDURE ARE NOT NEEDED IN THIS CONTEXT; BROAD STATUTORY SAFEGUARDS
ARE NO SUBSTITUTE FOR INDIVIDUALIZED REVIEW, PARTICULARLY WHEN THOSE
SAFEGUARDS MAY ONLY BE INVOKED AT THE RISK OF A CRIMINAL PENALTY." 
ID., AT 533. 

IN CHIMEL V. CALIFORNIA, 395 U.S. 752, IN CONSIDERING THE
CONSTITUTIONALITY OF A SEARCH INCIDENT TO AN ARREST WE HELD THAT, WHILE
THE AREA IN THE IMMEDIATE REACH OF AN ARRESTEE IS "REASONABLE" THOUGH
MADE WITHOUT A WARRANT, A SEARCH BEYOND THAT ZONE MAY GENERALLY BE MADE
"ONLY UNDER THE AUTHORITY OF A SEARCH WARRANT."  ID., AT 763.  AND IN
TWO "STOP AND FRISK" CASES, TERRY V. OHIO, 392 U.S. 1, AND DAVIS V.
MISSISSIPPI, 394 H.S. 721, WE HELD THAT ANY RESTRAINT OF THE PERSON,
HOWEVER BRIEF, WAS SUBJECT TO JUDICIAL INQUIRY ON "REASONABLENESS" (392
U.S.,AT 19) AND THAT "THE FOURTH AMENDMENT GOVERNS ALL INTRUSIONS BY
AGENTS OF THE PUBLIC UPON PERSONAL SECURITY . . . . "  ID., AT 18 N.
15. 

WE HAVE MOVED FAR AWAY FROM THE RATIONALE OF ON LEE AND LOPEZ AND
ONLY A RETROGRESSIVE STEP OF LARGE DIMENSIONS WOULD BRING US BACK TO
IT. 

THE THREADS OF THOUGHT RUNNING THROUGH OUR RECENT DECISIONS ARE THAT
THESE EXTENSIVE INTRUSIONS INTO PRIVACY MADE BY ELECTRONIC SURVEILLANCE
MAKE SELF-RESTRAINT BY LAW ENFORCEMENT OFFICIALS AN INADEQUATE
PROTECTION, THAT THE REQUIREMENT OF WARRANTS UNDER THE FOURTH AMENDMENT
IS ESSENTIAL TO A FREE SOCIETY.  /3/  MONITORING, IF PREVALENT,
CERTAINLY KILLS FREE DISCOURSE AND SPONTANEIOUS UTTERANCES.  FREE
DISCOURSE-- A FIRST AMENDMENT VALUE-- MAY BE FRIVOLOUS OR SERIOUS,
HUMBLE OR DEFIANT, REACTIONARY OR REVOLUTIONARY, PROFANE OR IN GOOD
TASTE; BUT IT IS NOT FREE IF THERE IS SURVEILLANCE.  /4/  FREE
DISCOURSE LIBERATES THE SPIRIT, THOUGH IT MAY PRODUCE ONLY FROTH.  THE
INDIVIDUAL MUST KEEP SOME FACTS CONCERNING HIS THOUGHTS WITHIN A SMALL
ZONE OF PEOPLE.  AT THE SAME TIME HE MUST BE FREE TO POUR OUT HIS WOES
OR INSPIRATIONS OR DREAMS TO OTHERS.  HE REMAINS THE SOLE JUDGE AS TO
WHAT MUST BE SAID AND WHAT MUST REMAIN UNSPOKEN.  THIS IS THE ESSENCE
OF THE IDEA OF PRIVACY IMPLICIT IN THE FIRST AND FIFTH AMENDMENTS AS
WELL AS IN THE FOURTH. 

THE PHILOSOPHY OF THE VALUE OF PRIVACY REFLECTED IN THE FOURTH
AMENDMENT'S BAN ON "UNREASONABLE SEARCHES AND SEIZURES" HAS BEEN
FORCEFULLY STATED BY A FORMER ATTORNEY GENERAL OF THE UNITED STATES:

     "PRIVACY IS THE BASIS OF INDIVIDUALITY.  TO BE ALONE AND BE
LET

  ALONE, TO BE WITH CHOSEN COMPANY, TO SAY WHAT YOU THINK, OR DON'T

  THINK, BUT TO SAY WHAT YOU WILL, IS TO BE YOURSELF.  SOLITUDE IS

  IMPERATIVE, EVEN IN A HIGH RISE APARTMENT.  PERSONALITY DEVELOPS

  FROM WITHIN.  TO REFLECT IS TO KNOW YOURSELF.  CHARACTER IS

  FORMED THROUGH YEARS OF SELF-EXAMINATION.  WITHOUT THIS

  OPPORTUNITY, CHARACTER WILL BE FORMED LARGELY BY UNCONTROLLED

EXTERNAL SOCIAL STIMULATIONS.  AMERICANS ARE EXCESSIVELY

 HOMOGENIZED ALREADY. 

     "FEW CONVERSATIONS WOULD BE WHAT THEY ARE IF THE SPEAKESR

  THOUGHT OTHERS WERE LISTENING.  SILLY, SECRET, THOUGHTLESS AND

  THOUGHTFUL STATEMENTS WOULD ALL BE AFFECTED.  THE SHEER NUMBERS

  IN OUR LIVES, THE ANNONYMITY OF URBAN LIVING AND THE INABILITY TO

INFLUENCE THINGS THAT ARE IMPORTANT ARE DEPERSONALIZING AND

 DEHUMANIZING FACTORS OF MODERN LIFE.  TO PENETRATE THE LAST

  REFUGE OF THE INDIVIDUAL, THE PRECIOUS LITTLE PRIVACY THAT

  REMAINS, THE BASIS OF INDIVIDUAL DIGNITY, CAN HAVE MEANING TO THE

  QUALITY OF OUR LIVES THAT WE CANNOT FORESEE.  IN TERMS OF PRESENT

  VALUES, THAT MEANING CANNOT BE GOOD. 

     "INVASIONS OF PRIVACY DEMEAN THE INDIVIDUAL.  CAN A SOCIETY BE

  BETTER THAN THE PEOPLE COMPOSING IT?  WHEN A GOVERNMENT DEGRADES

  ITS CITIZENS, OR PERMITS THEM TO DEGRADE EACH OTHER, HOWEVER

  BENEFICENT THE SPECIFIC PURPOSE, IT LIMITS OPPORTUNITIES FOR

  INDIVIDUAL FULFILLMENT AND NATIONAL ACCOMPLISHMENT.  IF AMERICA

  PERMITS FEAR AND ITS FAILURE TO MAKE BASIC SOCIAL REFORMS TO

  EXCUSE POLICE USE OF SECRET ELECTRONIC SURVEILLANCE, THE PRICE

  WILL BE DEAR INDEED.  THE PRACTICE IS INCOMPATIBLE WITH A FREE

  SOCIETY."  R. CLARK, CRIME IN AMERICA 287 (1970). 

NOW THAT THE DISCREDITED DECISIONS IN ON LEE AND LOPEZ ARE
RESUSCITATED AND REVIVED, MUST EVERYONE LIVE IN FEAR THAT EVERY WORD HE
SPEAKS MAY BE TRANSMITTED OR RECORDED /5/  AND LATER REPEATED TO THE
ENTIRE WORLD?  I CAN IMAGINE NOTHING THAT HAS A MORE CHILLING EFFECT ON
PEOPLE SPEAKING THEIR MINDS AND EXPRESSING THEIR VIEWS ON IMPORTANT
MATTERS.  THE ADVOCATES OF THAT REGIME SHOULD SPEND SOME TIME IN
TOTALITARIAN COUNTRIES AND LEARN FIRSTHAND THE KIND OF REGIME THEY ARE
CREATING HERE.  /6/

III 

THE DECISION NOT TO MAKE KATZ RETROACTIVE TO ANY ELECTRONIC
SURVEILLANCE WHICH OCCURRED PRIOR TO DECEMBER 18, 1967 (THE DAY WE
DECIDED KATZ), IS NOT, IN MY VIEW, A TENABLE ONE FOR THE REASONS STATED
BY MR. JUSTICE HARLAN AND ME IN OUR DISSENTS IN DESIST V. UNITED
STATES, 394 U.S. 244, 255, 256. 

/1/  SEE GREENAWALT, THE CONSENT PROBLEM IN WIRETAPPING &
EAVESDROPPING:  SURREPTITIOUS MONITORING WITH THE CONSENT OF A
PARTICIPANT IN A CONVERSATION, 68 COL.L.REV.  189; KITCH, KATZ V.
UNITED STATES:  THE LIMITS OF THE FOURTH AMENDMENT, 1968 SUP. CT. REV.
133; NOTE, POLICE UNDERCOVER AGENTS:  NEW THREAT TO FIRST AMENDMENT
FREEDOMS, 37 GEO.WASH.L.REV.  634; COMMENT, ELECTRONIC SURVEILLANCE:
THE NEW STANDARDS, 35 BROOKLYN L.REV.  49. 

THE RELAXING OF CONSTITUTIONAL REQUIREMENTS BY THE EXECUTIVE BRANCH
IS APPARENT FROM THE APPENDICES TO THIS DISSENT. 

/2/  OSBORN V. UNITED STATES, 385 D.S. 323, WAS HELD TO BE IN THAT
TRADITION, AS THE FEDERAL DISTRICT JUDGES, PRIOR TO THE USE OF THE
RECORDING DEVICE BY THE AGENT AND WITH FULL KNOWLEDGE OF THE ALLEGED
LAW VIOLATION INVOLVED, "AUTHORIZED THE USE OF A RECORDING DEVICE FOR
THE NARROW AND PARTICULARIZED PURPOSE OF ASCERTAINING THE TRUTH" OF THE
CHARGE.  ID., AT 330. 

/3/  THE TYRANNY OF SURVEILLANCE THAT IS NOT SUPERVISED IN THE
FOURTH AMENDMENT MANNER IS TOLD BY JUDGE GESELL IN UNITED STATES V.
JONES, 292 F.SUPP.  1001, 1008-1009, WHERE THE COMPETITION BETWEEN
AGENCIES AND THE UNCONTROLLED ACTIVITIES OF SUBORDINATES ENDED UP WITH
GOVERNMENT ITSELF PLAYING AN IGNOBLE ROLE. 

CF. AMERICAN BAR ASSOCIATION, PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, ELECTRONIC SURVEILLANCE SECS. 4.1, 5.2 (APPROVED DRAFT 1971). 

/4/  CONGRESSMAN MIKVA OF ILLINOIS, IN SPEAKING OF THE SPREAD OF
MILITARY SURVEILLANCE OF CIVILIANS-- ANOTHER FACET OF THE PROBLEM IN
THE INSTANT CASE-- RECENTLY SAID: 

"AT ONE POINT THEY REFERRED TO 'INFILTRATING PUBLIC MEETINGS' AT
WHICH SENATOR STEVENSON AND I SPOKE, AND I WONDERED HOW YOU
'INFILTRATE' A PUBLIC MEETING.  PERHAPS THEY WANTED TO COMPILE EVIDENCE
TO BE USED IN SOME FUTURE MILITARY COURT-- EVIDENCE THAT I WAS DISLOYAL
TO THE MILITARY ESTABLISHMENT BECAUSE I SUGGESTED THAT WE CUT MANPOWER
BY TEN PER CENT LAST YEAR, OR BECAUSE I VOTED AGAINST THEIR
APPROPRIATIONS IN THE TWO YEARS I'VE BEEN HERE. 

        .          .          .          . 

"WHEN THEY START INVESTIGATING POLITICAL FIGURES, THERE IS NO PLACE
YOU CAN DRAW THE LINE AND MAINTAIN ANY KIND OF CIVILIAN CONTROL . . .

        .          .          .          . 

"WE HAVE BECOME A FEARFUL PEOPLE.  THERE WAS A TIME WHEN WE FEARED
ONLY OUR ENEMIES ABROAD.  NOW WE SEEM TO BE AS FEARFUL OF OUR ENEMIES
AT HOME, AND DEPENDING ON WHOM YOU TALK TO, THOSE ENEMIES CAN INCLUDE
PEOPLE UNDER THIRTY, PEOPLE WITH FOREIGN NAMES, PEOPLE OF DIFFERENT
RACES, PEOPLE IN THE BIG CITIES.  WE HAVE BECOME A SUSPICIOUS NATION,
AS AFRAID OF BEING DESTROYED FROM WITHIN AS FROM WITHOUT. 

"UNFORTUNATELY, THE MANIFESTATIONS OF THAT KIND OF FEAR AND
SUSPICION ARE POLICE-STATE MEASURES."  A NATION IN FEAR, THE
PROGRESSIVE, FEB. 1971, PP. 18, 19-20. 

/5/  SENATOR EDWARD LONG, WHO INTENSIVELY INVESTIGATED WIRETAPPING
AND "BUGGING" SAID: 

"YOU WOULD BE AMAZED AT THE DIFFERENT WAYS YOU CAN NOW BE 'BUGGED.' 
THERE IS TODAY A TRANSMITTER THE SIZE OF AN ASPIRIN TABLET WHICH CAN
HELP TRANSMIT CONVERSATIONS IN YOUR ROOM TO A LISTENING POST UP TO 10
MILES AWAY. 

"AN EXPERT CAN DEVISE A BUG TO FIT INTO ALMOST ANY PIECE OF
FURNITURE IN YOUR ROOM.  AND EVEN IF YOU FIND THE BUG, YOU WILL HAVE NO
EVIDENCE OF WHO PUT IT THERE.  A UNITED STATES SENATOR WAS BUGGED BY A
TRANSMITTER SECRETLY PLACED INTO A LAMP WHICH HIS WIFE WAS HAVING FIXED
AT THE SHOP.  WHEN EXPERTS SEARCHED FOR THE TRANSMITTER, IT WAS GONE. 

"A LEADING ELECTRONICS EXPERT TOLD BY SUBCOMMITTEE LAST YEAR THAT
WIRETAPPING AND BUGGING IN INDUSTRIAL ESPIONAGE TRIPLES EVERY YEAR.  HE
SAID THAT NEW BUGGING DEVICES ARE SO SMALL AND CLEVERLY CONCEALED THAT
IT TAKES SEARCH EQUIPMENT COSTING OVER ONE HUNDRED THOUSAND DOLLARS AND
AN EXPERT WITH 10 YEARS OF FIELD EXPERIENCE TO DISCOVER THEM.  TEN
YEARS AGO, THE SAME SEARCH FOR BUGS COULD HAVE BEEN DONE WITH EQUIPMENT
COSTING ONLY ONE-FOURTH AS MUCH. 

"IN CALIFORNIA WE FOUND A BUSINESSMAN WHO HAD BEEN SO FRIGHTENED BY
ELECTRONIC EAVESDROPPING DEVICES WHICH HAD BEEN CONCEALED IN HIS
OFFICE, THAT HE IS NOW SPENDING THOUSANDS OF DOLLARS HAVING HIS OFFICE
SEARCHED EACH DAY, TAKING HIS PHONE APART EVERY MORNING, AND STATIONING
A SPECIAL GUARD OUTSIDE HIS OFFICE 24 HOURS A DAY. 

"HE IS ONE OF A GROWING NUMBER OF MEN IN INDUSTRY WHO LIVE IN
CONSTANT FEAR THAT WHAT THEY SAY IS BEING LISTENED TO BY THEIR
COMPETITOR."  19 ADM.L.REV.  442, 444.  AND SEE E. LONG, THE INTRUDERS
(1966). 

/6/  "A TECHNOLOGICAL BREAKTHROUGH IN TECHNIQUES OF PHYSICAL
SURVEILLANCE NOW MAKES IT POSSIBLE FOR GOVERNMENT AGENTS AND PRIVATE
PERSONS TO PENETRATE THE PRIVACY OF HOMES, OFFICES, AND VEHICLES; TO
SURVEY INDIVIDUALS MOVING ABOUT IN PUBLIC PLACES; AND TO MONITOR THE
BASIC CHANNELS OF COMMUNICATION BY TELEPHONE, TELEGRAPH, RADIO,
TELEVISION, AND DATA LINE.  MOST OF THE 'HARDWARE' FOR THIS PHYSICAL
SURVEILLANCE IS CHEAP, READILY AVAILABLE TO THE GENERAL PUBLIC,
RELATIVELY EASY TO INSTALL, AND NOT PRESENTLY ILLEGAL TO OWN.  AS OF
THE 1960'S, THE NEW SURVEILLANCE TECHNOLOGY IS BEING USED WIDELY BY
GOVERNMENT AGENCIES OF ALL TYPES AND AT EVERY LEVEL OF GOVERNMENT, AS
WELL AS BY PRIVATE AGENTS FOR A RAPIDLY GROWING NUMBER OF BUSINESSES,
UNIONS, PRIVATE ORGNAIZATIONS, AND INDIVIDUALS IN EVERY SECTION OF THE
UNITED STATES.  INCREASINGLY, PERMANENT SURVEILLANCE DEVICES HAVE BEEN
INSTALLED IN FACILITIES USED BY EMPLOYEES OR THE PUBLIC.  WHILE THERE
ARE DEFENSES AGAINST 'OUTSIDE' SURVEILLANCE, THESE ARE SO COSTLY AND
COMPLEX AND DEMAND SUCH CONSTANT VIGILANCE THAT THEIR USE IS FEASIBLE
ONLY WHERE OFFICIAL OR PRIVATE MATTERS OF THE HIGHEST SECURITY ARE TO
BE PROTECTED.  FINALLY, THE SCIENTIFIC PROSPECTS FOR THE NEXT DECADE
INDICATE A CONTINUING INCREASE IN THE RANGE AND VERSATILITY OF THE
LISTENING AND WATCHING DEVICES, AS WELL AS THE POSSIBILITY OF COMPUTER
PROCESSING OF RECORDINGS TO IDENTIFY AUTOMATICALLY THE SPEAKERS OR
TOPICS UNDER SURVEILLANCE.  THESE ADVANCES WILL COME JUST AT THE TIME
WHEN PERSONAL CONTACTS, BUSINESS AFFAIRS, AND GOVERNMENT OPEATIONS ARE
BEING CHANNELED MORE AND MORE INTO ELECTRONIC SYSTEMS SUCH AS DATA
PHONE LINES AND COMPUTER COMMUNICATIONS."  A. WESTIN, PRIVACY AND
FREEDOM 365-366 (1967).              APPENDIX I TO OPINION OF DOUGLAS,
J.,

DISSENTING

        THE WHITE HOUSE

        WASHINGTON    MAY 21, 1940 

CONFIDENTIAL

        MEMORANDUM FOR THE

        ATTORNEY GENERAL 

I HAVE AGREED WITH THE BROAD PURPOSE OF THE SUPREME COURT DECISION
RELATING TO WIRE-TAPPING IN INVESTIGATIONS.  THE COURT IS UNDOUBTEDLY
SOUND BOTH IN REGARD TO THE USE OF EVIDENCE SECURED OVER TAPPED WIRES
IN THE PROSECUTION OF CITIZENS IN CRIMINAL CASES; AND IS ALSO RIGHT IN
ITS OPINION THAT UNDER ORDINARY AND NORMAL CIRCUMSTANCES WIRE-TAPPING
BY GOVERNMENT AGENTS SHOULD NOT BE CARRIED ON FOR THE EXCELLENT REASON
THAT IT IS ALMOST BOUND TO LEAD TO ABUSE OF CIVIL RIGHTS. 

HOWEVER, I AM CONVINCED THAT THE SUPREME COURT NEVER INTENDED ANY
DICTUM IN THE PARTICULAR CASE WHICH IT DECIDED TO APPLY TO GRAVE
MATTERS INVOLVING THE DEFENSE OF THE NATION. 

IT IS, OF COURSE, WELL KNOWN THAT CERTAIN OTHER NATIONS HAVE BEEN
ENGAGED IN THE ORGANIZATION OF PROPAGANDA OF SO-CALLED "FIFTH COLUMNS"
IN OTHER COUNTRIES AND IN PREPARATION FOR SABOTAGE, AS WELL AS IN
ACTUAL SABOTAGE. 

IT IS TOO LATE TO DO ANYTHING ABOUT IT AFTER SABOTAGE,
ASSASSINATIONS AND "FIFTH COLUMN" ACTIVITIES ARE COMPLETED. 

YOU ARE, THEREFORE, AUTHORIZED AND DIRECTED IN SUCH CASES AS YOU MAY
APPROVE, AFTER INVESTIGATION OF THE NEED IN EACH CASE, TO AUTHORIZE THE
NECESSARY INVESTIGATION AGENTS THAT THEY ARE AT LIBERTY TO SECURE
INFORMATION BY LISTENING DEVICES DIRECTED TO THE CONVERSATION OR OTHER
COMMUNICATIONS OF PERSONS SUSPECTED OF SUBVERSIVE ACTIVITIES AGAINST
THE GOVERNMENT OF THE UNITED STATES, INCLUDING SUSPECTED SPIES.  YOU
ARE REQUESTED FURTHERMORE TO LIMIT THESE INVESTIGATIONS SO CONDUCTED TO
A MINIMUM AND TO LIMIT THEM INSOFAR AS POSSIBLE TO ALIENS. 

(SEAL)

              (S) F.D.R.

        APPENDIX II TO OPINION OF DOUGLAS, J.,

DISSENTING

        ADMINISTRATIVELY CONFIDENTIAL

  THE WHITE HOUSE

        WASHINGTON    JUNE 30, 1965

        MEMORANDUM FOR THE HEADS OF

        EXECUTIVE DEPARTMENTS

        AND AGENCIES 

I AM STRONGLY OPPOSED TO THE INTERCEPTION OF TELEPHONE CONVERSATIONS
AS A GENERAL INVESTIGATIVE TECHNIQUE.  I RECOGNIZE THAT MECHANICAL AND
ELECTRONIC DEVICES MAY SOMETIMES BE ESSENTIAL IN PROTECTING OUR
NATIONAL SECURITY.  NEVERTHELESS, IT IS CLEAR THAT INDISCRIMINATE USE
OF THOSE INVESTIGATIVE DEVICES TO OVERHEAR TELEPHONE CONVERSATIONS,
WITHOUT THE KNOWLEDGE OR CONSENT OF ANY OF THE PERSONS INVOLVED, COULD
RESULT IN SERIOUS ABUSES AND INVASIONS OF PRIVACY.  IN MY VIEW, THE
INVASION OF PRIVACY OF COMMUNICATIONS IS A HIGHLY OFFENSIVE PRACTICE
WHICH SHOULD BE ENGAGED IN ONLY WHERE THE NATIONAL SECURITY IS AT
STAKE.  TO AVOID ANY MISUNDERSTANDING ON THIS SUBJECT IN THE FEDERAL
GOVERNMENT, I AM ESTABLISHING THE FOLLOWING BASIC GUIDELINES TO BE
FOLLOWED BY ALL GOVERNMENT AGENCIES: 

(1) NO FEDERAL PERSONNEL IS TO INTERCEPT TELEPHONE CONVERSATIONS
WITHIN THE UNITED STATES BY ANY MECHANICAL OR ELECTRONIC DEVICE,
WITHOUT THE CONSENT OF ONE OF THE PARTIES INVOLVED, (EXCEPT IN
CONNECTION WITH INVESTIGATIONS RELATED TO THE NATIONAL SECURITY). 

(2) NO INTERCEPTION SHALL BE UNDERTAKEN OR CONTINUED WITHOUT FIRST
OBTAINING THE APPROVAL OF THE ATTORNEY GENERAL. 

(3) ALL FEDERAL AGENCIES SHALL IMMEDIATELY CONFORM THEIR PRACTICES
AND PROCEDURES TO THE PROVISIONS OF THIS ORDER. 

UTILIZATION OF MECHANICAL OR ELECTRONIC DEVICES TO OVERHEAR NON
TELEPHONE CONVERSATIONS IS AN EVEN MORE DIFFICULT PROBLEM, WHICH RASIES
SUBSTANTIAL AND UNRESOLVED QUESTIONS OF CONSTITUTIONAL INTERPRETATION. 
I DESIRE THAT EACH AGENCY CONDUCTING SUCH INVESTIGATIONS CONSULT WITH
THE ATTORNEY GENERAL TO ASCERTAIN WHETHER THE AGENCY'S PRACTICES ARE
FULLY IN ACCORD WITH THE LAW AND WITH A DECENT REGARD FOR THE RIGHTS OF
OTHERS. 

EVERY AGENCY HEAD SHALL SUBMIT TO THE ATTORNEY GENERAL WITHIN 30
DAYS A COMPLETE INVENTORY OF ALL MECHANICAL AND ELECTRONIC EQUIPMENT
AND DEVICES USED FOR OR CAPABLE OF INTERCEPTING TELEPHONE
CONVERSATIONS.  IN ADDITION, SUCH REPORTS SHALL CONTAIN A LIST OF ANY
INTERCEPTIONS CURRENTLY AUTHORIZED AND THE REASON FOR THEM. 

              (S) LYNDON B. JOHNSON 

MR. JUSTICE HARLAN, DISSENTING. 

THE UNCONTESTED FACTS OF THIS CASE SQUARELY CHALLENGE THE CONTINUING
VIABILITY OF ON LEE V. UNITED STATES, 343 U.S. 747 (1952).  AS THE
PLURALITY OPINION OF MR. JUSTICE WHITE ITS MAKES CLEAR, IMPORTANT
CONSTITUTIONAL DEVELOPMENTS SINCE ON LEE MANDATE THAT WE REASSESS THAT
CASE, WHICH HAS CONTINUED TO GOVERN OFFICIAL BEHAVIOR OF THIS SORTIN
SPITE OF THE SUBSEQUENT EROSION OF ITS DOCTRINAL FOUNDATIONS.  WITH ALL
RESPECT, MY AGREEMENT WITH THE PLURALITY OPINION ENDS AT THAT POINT. 

I THINK THAT A PERCEPTION OF THE SCOPE AND ROLE OF THE FOURTH
AMENDMENT, AS ELUCIDATED BY THIS COURT SINCE ON LEE WAS DECIDED, AND
FULL COMPREHENSION OF THE PRECISE ISSUE AT STAKE LEAD TO THE CONCLUSION
THAT ON LEE CAN NO LONGER BE REGARDED AS SOUND LAW.  NOR DO I THINK THE
DATE WE DECIDED KATZ V. UNITED STATES, 389 U.S. 347 (1967), CAN BE
DEEMED CONTROLLING BOTH FOR THE REASONS DISCUSSED IN MY DISSENT IN
DESIST V. UNITED STATES, 394 U.S. 244, 256 (1969), AND MY SEPARATE
OPINION IN MACKEY V. UNITED STATES (AND COMPANION CASES), ANTE, P. 675
(THE CASE BEFORE US BEING HERE ON DIRECT REVIEW), AND BECAUSE, IN MY
VIEW, IT REQUIRES NO DISCUSSION OF THE HOLDING IN KATZ, AS
DISTINGUISHED FROM ITS UNDERLYING RATIONALE AS TO THE REACH OF THE
FOURTH AMENDMENT, TO COMPREHEND THE CONSTITUTIONAL INFIRMITY OF ON
LEE. 

        I 

BEFORE TURNING TO MATTERS OF PRECEDENT AND POLICY, SEVERAL
PRELIMINARY OBSERVATIONS SHOULD BE MADE.  WE DEAL HERE WITH THE
CONSTITUTIONAL VALIDITY OF INSTANTANEOUS THIRD-PARTY ELECTRONIC
EAVESDROPPING, CONDUCTED BY FEDERAL LAW ENFORCEMENT OFFICERS, WITHOUT
ANY PRIOR JUDICIAL APPROVAL OF THE TECHNIQUE UTILIZED, BUT WITH THE
CONSENT AND COOPERATION OF A PARTICIPANT IN THE CONVERSATION, /1/  AND
WHERE THE SUBSTANCE OF THE MATTER ELECTRONICALLY OVERHEARD /2/  IS
RELATED IN A FEDERAL CRIMINAL TRIAL BY THOSE WHO EAVESDROPPED AS
DIRECT, NOT MERELY CORROBORATIVE, EVIDENCE OF THE GUILT OF THE
NONCONSENTING PARTY.  THE MAGNITUDE OF THE ISSUE AT HAND IS EVIDENCED
NOT SIMPLY BY THE OBVIOUS DOCTRINAL DIFFICULTY OF WEIGHING SUCH
ACTIVITY IN THE FOURTH AMENDMENT BALANCE, BUT ALSO, AND MORE
IMPORTANTLY, BY THE PREVALENCE OF POLICE UTILIZATION OF THIS
TECHNIQUE.  PROFESSOR WESTIN HAS DOCUMENTED IN CAREFUL DETAIL THE
NUMEROUS DEVICES THAT MAKE TECHNOLOGICALLY FEASIBLE THE ORWELLIAN BIG
BROTHER.  OF IMMEDIATE RELEVANCE IS HIS OBSERVATION THAT "'PARTICIPANT
RECORDING,' IN WHICH ONE PARTICIPANT IN A CONVERSATION OR MEETING,
EITHER A POLICE OFFICER OR A CO-OPERATING PARTY, WEARS A CONCEALED
DEVICE THAT RECORDS THE CONVERSATION OR BROADCASTS IT TO OTHERS NEARBY
. . . IS USED TENS OF THOUSANDS OF TIMES EACH YEAR THROUGHOUT THE
COUNTRY, PARTICULARLY IN CASES INVOLVING EXTORTION, CONSPIRACY,
NARCOTICS, GAMBLING, PROSTITUTION, CORRUPTION BY POLICE OFFICIALS . . .
SIMILAR CRIMES."  /3/ 

MOREOVER, AS I SHALL UNDERTAKE TO SHOW LATER IN THIS OPINION, THE
FACTORS THAT MUST BE RECKONED WITH IN REACHING CONSTITUTIONAL
CONCLUSIONS RESPECTING THE USE OF ELECTRONIC EAVESDROPPING AS A TOOL OF
LAW ENFORCEMENT ARE EXCEEDINGLY SUBTLE AND COMPLEX.  THEY HAVE PROVOKED
SHARP DIFFERENCES OF OPINION BOTH WITHIN AND WITHOUT THE JUDICIARY, AND
THE ENTIRE PROBLEM HAS BEEN THE SUBJECT OF CONTINUING STUDY BY VARIOUS
GOVERNMENTAL AND NONGOVERNMENTAL BODIES.  /4/ 

FINALLY, GIVEN THE IMPORTANCE OF ELECTRONIC EAVESDROPPING AS A
TECHNIQUE FOR COPING WITH THE MORE DEEP-SEATED KINDS OF CRIMINAL
ACTIVITY, AND THE COMPLEXITIES THAT ARE ENCOUNTERED IN STRIKING A
WORKABLE CONSTITUTIONAL BALANCE BETWEEN THE PUBLIC AND PRIVATE
INTERESTS AT STAKE, I BELIEVE THAT THE COURTS SHOULD PROCEED WITH
SPECIALLY MEASURED STEPS IN THIS FIELD.  MORE PARTICULARLY, I THINK
THIS COURT SHOULD NOT FORECLOSE ITSELF FROM RECONSIDERING DOCTRINES
THAT WOULD PREVENT THE STATES FROM SEEKING, INDEPENDENTLY OF THE
NICETIES OF FEDERAL RESTRICTIONS AS THEY MAY DEVELOP, SOLUTIONS TO SUCH
VEXING PROBLEMS, SEE MAPP V. OHIO, 367 U.S. 643 (1961), AND KER V.
CALIFORNIA, 374 U.S. 23 (1963), AND SEE ALSO BERGER V. NEW YORK, 388
U.S. 41 (1967); BALDWIN V. NEW YORK, 399 U.S. 66, 117 (1970)
(DISSENTING OPINION); CALIFORNIA V. GREEN, 399 U.S. 149, 172 (1970)
(CONCURRING OPINION).  I ALSO THINK THAT IN THE ADJUDICATION OF FEDERAL
CASES, THE COURT SHOULD LEAVE AMPLE ROOM FOR CONGRESSIONAL
DEVELOPMENTS. 

        II 

ON THESE PREMISES I MOVE TO THE PROBLEM OF THIRD-PARTY "BUGGING." 
TO BEGIN BY TRACING CAREFULLY THE EVOLUTION OF FOURTH AMENDMENT
DOCTRINE IN POST-ON LEE DECISIONS HAS PROVED USEFUL IN SEVERAL
RESPECTS.  IT SERVES TO CAST IN PERSPECTIVE BOTH THE ISSUE INVOLVED
HERE AND THE IMPERATIVE NECESSITY FOR RECONSIDERING ON LEE AFRESH. 
ADDITIONALLY, A FULL EXPOSITION OF THE DYNAMICS OF THE DECLINE OF THE
TRESPASS RATIONALE UNDERLYING ON LEE STRIKINGLY ILLUMINATES THE
DEFICIENCIES OF THE PLURALITY OPINION'S RETROACTIVITY ANALYSIS. 

        A 

ON LEE INVOLVED CIRCUMSTANCES VIRTUALLY IDENTICAL TO THOSE NOW
BEFORE US.  THERE, GOVERNMENT AGENTS ENLISTED THE SERVICES OF CHIN POY,
A FORMER FRIEND OF LEE, WHO WAS SUSPECTED OF ENGAGING IN ILLEGAL
NARCOTICS TRAFFIC.  POY WAS EQUIPPED WITH A "MINIFON" TRANSMITTING
DEVICE WHICH ENABLED OUTSIDE GOVERNMENT AGENTS TO MONITOR POY'S
CONVERSATIONS WITH LEE.  IN THE PRIVACY OF HIS LAUNDRY, LEE MADE
DAMAGING ADMISSIONS TO POY WHICH WERE OVERHEARD BY THE AGENTS AND LATER
RELATED AT TRIAL.  POY DID NOT TESTIFY.  MR. JUSTICE JACKSON, WRITING
FOR FIVE JUSTICES, HELD THE TESTIMONY ADMISSIBLE.  WITHOUT REACHING THE
QUESTION OF WHETHER A CONVERSATION COULD BE THE SUBJECT OF A "SEIZURE"
FOR FOURTH AMENDMENT PURPOSES, AS YET AN UNANSWERED IF NOT COMPLETELY
OPEN QUESTION, /5/  THE COURT CONCLUDED THAT IN THE ABSENCE OF A
TRESPASS, /6/  NO CONSTITUTIONAL VIOLATION HAD OCCURRED.  /7/ 

THE VALIDITY OF THE TRESPASS RATIONALE WAS QUESTIONABLE EVEN AT THE
TIME THE DECISION WAS RENDERED.  IN THIS RESPECT ON LEE RESTED ON
COMMON-LAW NOTIONS AND LOOKED TO A WANING ERA OF FOURTH AMENDMENT
JURISPRUDENCE.  THREE MEMBERS OF THE COURT REFUSED TO JOIN WITH JUSTICE
JACKSON, AND WITHIN 10 YEARS THE COURT EXPRESSLY DISAVOWED AN APPROACH
TO FOURTH AMENDMENT QUESTIONS THAT LOOKED TO COMMON-LAW DISTINCTIONS. 
SEE, E.G., JONES V. UNITED STATES, 362 U.S. 257 (1960); SILVERMAN V.
UNITED STATES, 365 L.S. 505 (1961); LANZA V. NEW YORK, 370 U.S. 139
(1962). 

IT IS, OF COURSE, TRUE THAT THE OPINION IN ON LEE DREW SOME SUPPORT
FROM A BRIEF ADDITIONAL ASSERTION THAT "EAVESDROPPING ON A
CONVERSATION, WITH THE CONNIVANCE OF ONE OF THE PARTIES" RAISES NO
FOURTH AMENDMENT PROBLEM.  343 U.S.,AT 754.  BUT SURELY IT IS A
MISREADING OF THAT OPINION TO VIEW THIS UNELABORATED ASSERTION AS A
WHOLLY INDEPENDENT GROUND FOR DECISION.  AT THE VERY LEAST, THIS
RATIONALE NEEDS SUBSTANTIAL BUTTRESSING IF IT IS TO PERSIST IN OUR
CONSTITUTIONAL JURISPRUDENCE AFTER THE DECISIONS I DISCUSS BELOW. 
INDEED, THE PLURALITY OPINION IN THE PRESENT CASE, IN GREATLY
ELABORATING THE POINT, TACITLY RECOGNIZES THE ANALYTIC INABILITY OF
THIS BARE HYPOTHESIS TO SUPPORT A RULE OF LAW SO PROFOUNDLY IMPORTANT
TO THE PROPER ADMINISTRATION OF JUSTICE.  MOREOVER, IF THIS WAS THE
TRUE RATIONALE OF ON LEE FROM THE OUTSET, IT IS DIFFICULT TO SEE THE
RELEVANCE OF DESIST TO THE RESOLUTION OF THE INSTANT CASE, FOR KATZ
SURELY DOES NOT SPEAK DIRECTLY TO THE CONTINUED VIABILITY OF THAT
GROUND FOR DECISION.  SEE KATZ V. UNITED STATES, 389 U.S.,AT 363 N.
(WHITE,J., CONCURRING). 

BY 1963, WHEN WE DECIDED LOPEZ V. UNITED STATES, 373 U.S. 427, FOUR
MEMBERS OF THE COURT WERE PREPARED TO PRONOUNCE ON LEE AND OLMSTEAD V.
UNITED STATES, 277 U.S. 438 (1928), DEAD.  /8/  THE PYRE, THEY
REASONED, HAD BEEN STOKED BY DECISIONS LIKE WONG SUN V. UNITED STATES,
371 U.S. 471 (1963), WHICH, ON THE ONE HAND, EXPRESSLY BROUGHT VERBAL
COMMUNICATION WITHIN THE SWEEP OF THE FOURTH AMENDMENT, /9/  AND, ON
THE OTHER, REINFORCED OUR SILVERMAN AND JONES DECISIONS WHICH "REFUSED
TO CROWD THE FOURTH AMENDMENT INTO THE MOLD OF LOCAL PROPERTY LAW," 373
U.S.,AT 460 (BRENNAN, J., DISSENTING). 

ALTHOUGH THE COURT'S DECISION IN LOPEZ IS CITED BY THE GOVERNMENT AS
A REAFFIRMATION OF ON LEE, IT CAN HARDLY BE THOUGHT TO HAVE NURTURED
THE QUESTIONABLE RATIONALE OF THAT DECISION OR ITS MUCH-CRITICIZED
ANCESTOR, OLMSTEAD.  TO THE DISCERNING LAWYER LOPEZ COULD ONLY GIVE
PAUSE, NOT COMFORT.  WHILE THE MAJORITY OPINION, OF WHICH I WAS THE
AUTHOR, DECLINED TO FOLLOW THE COURSE FAVORED BY THE DISSENTING AND
CONCURRING JUSTICES BY SOUNDING THE DEATH KNELL FOR OLMSTEAD AND ON
LEE, OUR HOLDING, DESPITE AN ALLUSION TO THE ABSENCE OF "AN UNLAWFUL .
. . INVASION OF A CONSTITUTIONALLY PROTECTED AREA," 373 U.S.,AT 438
439, WAS BOTTOMED ON TWO PREMISES:  THE CORROBORATIVE USE THAT WAS MADE
OF THE TAPE RECORDINGS, WHICH INCREASED RELIABILITY IN THE FACTFINDING
PROCESS, AND THE ABSENCE OF A "RISK" NOT FAIRLY ASSUMED BY PETITIONER. 
THE TAPE RECORDING WAS MADE BY A PARTICIPANT IN THE CONVERSATION AND
THE OPINION EMPHASIZED THIS ABSENCE OF A THIRD-PARTY INTRUSION,
EXPRESSLY NOTING THAT THERE WAS NO "ELECTRONIC EAVESDROPPING ON A
PRIVATE CONVERSATION WHICH GOVERNMENT AGENTS COULD NOT OTHERWISE HAVE
OVERHEARD."  373 U.S.AT 440.  /10/  AS I POINT OUT IN PART III OF THIS
OPINION, IT IS ONE THING TO SUBJECT THE AVERAGE CITIZEN TO THE RISK
THAT PARTICIPANTS IN A CONVERSATION WITH HIM WILL SUBSEQUENTLY DIVULGE
ITS CONTENTS TO ANOTHER, BUT QUITE A DIFFERENT MATTER TO FOIST UPON HIM
THE RISK THAT UNKNOWN THIRD PARTIES MAY BE SIMULTANEOUSLY LISTENING
IN.     WHILE LOPEZ CITED ON LEE WITHOUT DISAVOWAL OF ITS HOLDING, 373
U.S.,AT 438, IT IS ENTIRELY ACCURATE TO SAY THAT WE DID NOT THERE
REAFFIRM IT.  /11/  NO DECISION SINCE LOPEZ GIVES A BREATH OF LIFE TO
THE REASONING THAT LED TO THE ON LEE AND OLMSTEAD RESULTS, AND IT
REQUIRED LITTLE CLAIRVOYANCE TO PREDICT THE DEMISE OF THE BASIC
RATIONALE OF ON LEE AND OLMSTEAD FORESHADOWED BY OUR SUBSEQUENT
OPINIONS IN OSBORN V. UNITED STATES, 385 U.S. 323 (1966), AND BERGER V.
NEW YORK, 388 U.S. 41 (1967). 

ONLY THREE YEARS AFTER LOPEZ, MR. JUSTICE STEWART WRITING FOT THE
COURT INOSBORN V. UNITED STATES, SUPRA, EXPRESSLY ABJURED RELIANCE ON
LOPEZ AND, INSTEAD, APPROVED IDENTICAL CONDUCT BASED ON THE
"CIRCUMSTANCES UNDER WHICH THE TAPE RECORDING WAS OBTAINED IN (THAT)
CASE," FACTS THAT INVOLVED "USING (A RECORDER) UNDER THE MOST PRECISE
AND DISCRIMINATE CIRCUMSTANCES, CIRCUMSTANCES WHICH FULLY MET THE
'REQUIREMENT OF PARTICULARITY' WHICH THE DISSENTING OPINION IN LOPEZ
FOUND NECESSARY."  OSBORN V. UNITED STATES, 385 U.S.,AT 327, 329. 
/12/ 

SINCE OSBORN OUR DECISIONS HAVE SHOWN NO TOLERANCE FOR THE OLD
DIVIDING LINES RESTING, AS THEY DID, ON FICTION AND COMMON-LAW
DISTINCTIONS WITHOUT SOUND POLICY JUSTIFICATION IN THE REALM OF VALUES
PROTECTED BY THE FOURTH AMENDMENT.  THUS, IN ABOLISHING THE "MERE
EVIDENCE RULE" WE ANNOUNCED THAT "THE PRINCIPAL OBJECT OF THE FOURTH
AMENDMENT IS THE PROTECTION OF PRIVACY RATHER THAN PROPERTY," AND ONCE
AGAIN NOTED THE TREND TO DISCARD "FICTIONAL AND PROCEDURAL BARRIERS
RESTED ON PROPERTY CONCEPTS."  WARDEN V. HAYDEN, 387 U.S. 294, 304
(1967).  THAT SAME TERM THE COURT DEMONSTRATED THE NEW FLEXIBILITY IN
FOURTH AMENDMENT DOCTRINE WHEN IT HELD THAT THE WARRANT PROTECTIONS
WOULD BE APPLIED TO ADMINISTRATIVE SEARCHES.  CAMARA V. MUNICIPAL
COURT, 387 U.S. 523 (1967). 

CERTAINLY IF OSBORN, WARDEN, AND CAMARA DID NOT PLAINLY DRAW INTO
QUESTION THE VIGOR OF EARLIER PRECEDENTS, BERGER V. NEW YORK, 388 U.S.
41, DID, AND EXPUNGED ANY REMNANTS OF FORMER DOCTRINE WHICH MIGHT HAVE
BEEN THOUGHT TO HAVE SURVIVED OSBORN AND WARDEN.  /13/  THERE, THE
COURT, FOLLOWING A PATH OPENED BY MR. JUSTICE BRANDEIS'  DISSENT IN
OLMSTEAD, AND SMOOTHED IN OSBORN AND CAMARA, EXPRESSED CONCERN ABOUT
SCIENTIFIC DEVELOPMENTS THAT HAVE PUT WITHIN THE REACH OF THE
GOVERNMENT THE PRIVATE COMMUNICATIONS OF "ANYONE IN ALMOST ANY GIVEN
SITUATION," 388 U.S.,AT 47; IT LEFT NO DOUBT THAT, AS A GENERAL
PRINCIPLE, ELECTRONIC EAVESDROPPING WAS AN INVASION OF PRIVACY AND THAT
THE FOURTH AMENDMENT PROHIBITED UNSUPERVISED "BUGGING."  DISTURBED BY
THE EXTENT OF INTRUSION WHICH "(BY ITS VERY NATURE . . . IS BROAD IN
SCOPE," AND NOTING THAT "(FEW THREATS TO LIBERTY EXIST WHICH ARE
GREATER THAN THAT POSED BY THE USE OF EAVESDROPPING DEVICES," ID., AT
63, THE COURT BROUGHT TO LIFE THE PRINCIPLE OF REASONABLENESS
ADUMBRATED IN OSBORN.  MR. JUSTICE CLARK, WRITING FOR THE MAJORITY,
REITERATED THE NEW APPROACH: 

"(THE 'INDISCRIMINATE USE OF SUCH (BUGGING) DEVICES IN LAW
ENFORCEMENT RAISES GRAVE CONSTITUTIONAL QUESTIONS UNDER THE FOURTH AND
FIFTH AMENDMENTS,' AND IMPOSES 'A HEAVIER RESPONSIBILITY ON THIS COURT
IN ITS SUPERVISION OF THE FAIRNESS OF PROCEDURES . . . '" 388 U.S.,AT
56, QUOTING FROM OSBORN V. UNITED STATES, 385 U.S. 323, 329 N. 7. 

NOR DID THE COURT WAVER IN RESOLVE IN THE FACE OF RESPONDENT'S DIRE
PREDICTION THAT "NEITHER A WARRANT NOR A STATUTE AUTHORIZING
EAVESDROPPING CAN BE DRAWN SO AS TO MEET THE FOURTH AMENDMENT'S
REQUIREMENTS."  /14/  IT WAS SAID THAT "(IF THAT BE TRUE THEN THE
'FRUITS' OF EAVESDROPPING DEVICES ARE BARRED UNDER THE AMENDMENT."  388
U.S.,AT 63.  /15/ 

IF BERGER DID NOT FLATLY SOUND A DIRGE FOR OLMSTEAD, IT ARTICULATED
PRINCIPLES THAT LED MR. JUSTICE DOUGLAS, BY WAY OF CONCURRENCE, TO
COMMENT ON ITS QUIET BURIAL.  388 U.S.,AT 64.  WHILE IT WAS LEFT TO
KATZ TO PERFORM THE LAST RITES, THAT DECISION INEVITABLY FOLLOWED FROM
OSBORN AND BERGER.  THE BERGER MAJORITY'S AFFIRMATIVE CITATION OF ON
LEE FOR THE PRINCIPLE THAT "UNDER SPECIFIC CONDITIONS AND
CIRCUMSTANCES" EAVESDROPPING MAY BE LAWFUL, 388 U.S.,AT 63, SERVES ONLY
TO UNDERSCORE THE EMERGING OPERATIVE ASSUMPTIONS:  THAT THE PARTICULAR
CIRCUMSTANCES OF EACH CASE WILL BE SCRUTINIZED TO THE END OF
ASCERTAINING THE REASONABLENESS OF THE SEARCH, AND THAT WILL DEPEND IN
LARGE MEASURE ON WHETHER PRIOR JUDICIAL AUTHORIZATION, BASED ON A
PARTICULARIZED SHOWING, HAS BEEN OBTAINED.  KATZ V. UNITED STATES,
SUPRA. 

VIEWED IN PERSPECTIVE, THEN, KATZ ADDED NO NEW DIMENSION TO THE
LAW.  AT MOST IT WAS A FORMAL DISPATCH OF OLMSTEAD AND THE NOTION THAT
SUCH PROBLEMS MAY USEFULLY BE RESOLVED IN THE LIGHT OF TRESPASS
DOCTRINE, AND, OF COURSE, IT FREED FROM SPECULATION WHAT WAS ALREADY
EVIDENT, THAT ON LEE WAS COMPLETELY OPEN TO QUESTION. 

    B 

BUT THE DECISIONS OF THIS COURT SINCE ON LEE DO MORE THAN
DEMONSTRATE THAT.THE DOCTRINE OF THAT CASE IS WHOLLY OPEN FOR
RECONSIDERATION, AND HAS BEEN SINCE WELL BEFORE KATZ WAS DECIDED.  THEY
ALSO ESTABLISH SOUND GENERAL PRINCIPLES FOR APPLICATION OF THE FOURTH
AMENDMENT THAT WERE IETHER DIMLY PERCEIVED OR NOT FULLY WORKED OUT AT
THE TIME OF ON LEE.  I HAVE ALREADY TRACED SOME OF THESE PRINCIPLES IN
PART II-A, SUPRA:  THAT VERBAL COMMUNICATION IS PROTECTED BY THE FOURTH
AMENDMENT, THAT THE REASONABLENESS OF A SEARCH DOES NOT DEPEND ON THE
PRESENCE OR ABSENCE OF A TRESPASS, AND THAT THE FOURTH AMENDMENT IS
PRINCIPALLY CONCERNED WITH PROTECTING INTERESTS OF PRIVACY, RATHER THAN
PROPERTY RIGHTS. 

ESPECIALLY WHEN OTHER RECENT FOURTH AMENDMENT DECISIONS, NOT
OTHERWISE SO IMMEDIATELY RELEVANT, ARE READ WITH THOSE ALREADY
DISCUSSED, THE PRIMACY OF AN ADDITIONAL GENERAL PRINCIPLE BECOMES
EQUALLY EVIDENT:  OFFICIAL INVESTIGATORY ACTION THAT IMPINGES ON
PRIVACY MUST TYPICALLY, IN ORDER TO BE CONSTITUTIONALLY PERMISSIBLE, BE
SUBJECTED TO THE WARRANT REQUIREMENT.  PARTICULARLY SIGNIFICANT IN THIS
REGARD ARE CAMARA V. MUNICIPAL COURT, 387 H.S. 523 (1967); TERRY V.
OHIO, 392 U.S. 1 (1968), AND CHIMEL V. CALIFORNIA, 395 H.S. 752
(1969). 

IN CAMARA THE COURT BROUGHT UNDER THE FOURTH AMENDMENT
ADMINISTRATIVE SEARCHES THAT HAD ONCE BEEN THOUGH TO BE WITHOUT ITS
SWEEP.  IN DOING SO THE OPINION EMPHASIZED THE DESIRABILITY OF
ESTABLISHING IN ADVANCE THOSE CIRCUMSTANCES THAT JUSTIFIED THE
INTRUSION INTO A HOME AND SUBMITTING THEM FOR REVIEW TO AN INDEPENDENT
ASSESSOR, /16/  PRINCIPLES THAT THIS COURT HAS ALWAYS DEEMED TO BE AT
THE CORE OF FOURTH AMENDMENT PROTECTIONS.  /17/  IN BRINGING SUCH
SEARCHES WITHIN THE AMBIT OF THE WARRANT REQUIREMENT, CAMARA REJECTED
THE NOTION THAT THE "LESS HOSTILE" NATURE OF THE SEARCH RELEGATED THIS
INVASION OF PRIVACY TO THE 'PERIPHERY" OF FOURTH AMENDMENT CONCERNS. 
387 U.S.,AT 530.  THE CENTRAL CONSIDERATION WAS, THE COURT CONCLUDED,
THAT THESE ADMINISTRATIVE ACTIONS, NO LESS THAN THE TYPICAL SEARCH,
INVOLVED GOVERNMENT OFFICIALS IN AN INVASION OF PRIVACY, AND THAT IT
WAS AGINST THE POSSIBLE ARBITRARINESS OF INVASION THAT THE FOURTH
AMENDMENT WITH ITS WARRANT MACHINERY WAS MEANT TO GUARD.  BERGER AND
KATZ BUILT, AS NOTED EARLIER, ON OSBORN V. UNITED STATES, SUPRA, AND
CAMARA, AND GAVE FURTHER EXPRESSION TO THE PRINCIPLE.  /18/  IT WAS NOT
ENOUGH THAT GOVERNMENT AGENTS ACTED WITH RESTRAINT, FOR REASONABLENESS
MUST IN THE FIRST INSTANCE BE JUDGED IN A DETACHED REALM.  /19/ 

THE SCOPE AND MEANING OF THE RULE HAVE EMERGED WITH EVEN GREATER
CLARITY BY VIRTUE OF OUR HOLDINGS SETTING THE BOUNDARIES FOR THE
EXCEPTIONS.  RECENTLY, IN CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969), WE
REITERATED THE IMPORTANCE OF THE PRIOR INDEPENDENT DETERMINATION OF A
NEUTRAL MAGISTRATE AND UNDERSCORED ITS CENTRALITY TO THE REASONABLENESS
REQUIREMENT OF THE FOURTH AMENDMENT, AND ABANDONED THE HOLDINGS OF
HARRIS V. UNITED STATES, 331 U.S. 145 (1947), AND UNITED STATES V.
RABINOWITZ, 339 U.S. 56 (1950).  WE WERE CONCERNED BY THE BREADTH OF
SEARCHES OCCASIONED BY THE RABINOWITZ RULE WHICH FREQUENTLY PROVED TO
BE AN INVITATION TO A HUNTING EXPEDITION.  SEARCHES INCIDENT TO ARREST,
WE HELD, MUST BE CONFINED TO A LOCUS NO GREATER THAN NECESSARY TO
PREVENT INJURY TO THE ARRESTING OFFICER OR DESTRUCTION OF EVIDENCE. 
395 U.S.,AT 763, 767; CF. TERRY V. OHIO, 392 U.S. 1 (1968). 

TO COMPLETE THE TAPESTRY, THE STRANDS OF DOCTRINE REFLECTED IN THE
SEARCH CASES MUST BE INTERWOVEN WITH THE COURT'S OTHER CONTEMPORARY
HOLDINGS.  MOST SIGNIFICANT ARE TERRY V. OHIO, SUPRA, AND DAVIS V.
MISSISSIPPI, 394 U.S. 721 (1969), WHICH WERE ALSO HARBINGERS OF THE NEW
THRUST IN FOURTH AMENDMENT DOCTRINE.  THERE THE COURT REJECTED THE
CONTENTION THAT ONLY AN ARREST TRIGGERED THE "INCIDENT-TO-ARREST"
EXCEPTION TO THE WARRANT REQUIREMENT OF THEFOURTH AMENDMENT, AND HELD
THAT ANY RESTRAINT OF THE PERSON, HOWEVER BRIEF AND HOWEVER LABELED,
WAS SUBJECT TO A REASONABLENESS EXAMINATION.  392 U.S.,AT 19.  THE
CONTROLLING PRINCIPLE IS "TO RECOGNIZE THAT THE FOURTH AMENDMENT
GOVERNS ALL INTRUSIONS BY AGENTS OF THE PUBLIC UPON PERSONAL SECURITY,
AND TO MAKE THE SCOPE OF THE PARTICULAR INTRUSION, IN LIGHT OF ALL THE
EXIGENCIES OF THE CASE, A CENTRAL ELEMENT IN THE ANALYSIS OF
REASONABLENESS."  392 U.S.,AT 18 N. 15.  SEE ALSO DAVIS V. MISSISSIPPI,
394 U.S.,AT 727.  /20/

        III

        A 

THAT THE FOUNDATIONS OF ON LEE HAVE BEEN DESTROYED DOES NOT, OF
COURSE, MEAN THAT ITS RESULT CAN NO LONGER STAND.  INDEED, THE
PLURALITY OPINION TODAY FASTENS UPON OUR DECISIONS IN LOPEZ, LEWIS V.
UNITED STATES, 385 U.S. 206 (1966), AND HOFFA V. UNITED STATES, 385
U.S. 293 (1966), TO RESIST THE UNDERCURRENTS OF MORE RECENT CASES
EMPHASIZING THE WARRANT PROCEDURE AS A SAFEGUARD TO PRIVACY.  BUT THIS
CATEGORY PROVIDES INSUFFICIENT SUPPORT.  IN EACH OF THESE CASES THE
RISK THE GENERAL POPULACE FACED WAS DIFFERENT FROM THAT SURFACED BY THE
INSTANT CASE.  NO SURREPTITIOUS THIRD EAR WAS PRESENT, AND IN EACH
OPINION THAT FACT WAS CAREFULLY NOTED. 

IN LEWIS, A FEDERAL AGENT POSING AS A POTENTIAL PURCHASER OF
NARCOTICS GAINED ACCESS TO PETITIONER'S HOME AND THERE CONSUMMATED AN
ILLEGAL SALE, THE FRUITS OF WHICH WERE ADMITTED AT TRIAL ALONG WITH THE
TESTIMONY OF THE AGENT.  CHIEF JUSTICE WARREN, WRITING FOR THE
MAJORITY, EXPRESSLY DISTINGUISHED THE THIRD-PARTY OVERHEARING INVOLVED,
BY WAY OF EXAMPLE, IN A CASE LIKE SILVERMAN V. UNITED STATES, SUPRA,
NOTING THAT "THERE, THE CONDUCT PROSCRIBED WAS THAT OF EAVESDROPPERS,
UNKNOWN AND UNWANTED INTRUDERS WHO FURTIVELY LISTENED TO CONVERSATIONS
OCCURRING IN THE PRIVACY OF A HOUSE."  385 U.S.,AT 212.  SIMILARLY IN
HOFFA, MR. JUSTICE STEWART TOOK CARE TO MENTION THAT "SURREPTIIOUS"
MONITORING WAS NOT THERE BEFORE THE COURT, AND SO TOO IN LOPEZ, SUPRA. 

THE PLURALITY OPINION SEEKS TO ERASE THE CRUCIAL DISTINCTION BETWEEN
THE FACTS BEFORE US AND THESE HOLDINGS BY THE FOLLOWING REASONSING:  IF
A CAN RELAY VERBALLY WHAT IS REVEALED TO HIM BY B (AS IN LEWIS AND
HOFFA), OR RECORD AND LATER DIVULGE IT (AS IN LOPEZ), WHAT DIFFERENCE
DOES IT MAKE IF A CONSPIRES WITH ANOTHER TO BETRAY B BY
CONTEMPORANEOUSLY TRANSMITTING TO THE OTHER ALL THAT IS SAID?  THE
CONTENTION IS, IN ESSENCE, AN ARGUMENT THAT THE DISTINCTION BETWEEN
THIRD-PARTY MONITORING AND OTHER UNDERCOVER TECHNIQUES IS ONE OF FORM
AND NOT SUBSTANCE.  THE FORCE OF THE CONTENTION DEPENDS ON THE
EVALUATION OF TWO SEPARABLE BUT INTERTWINED ASSUMPTIONS:  FIRST, THAT
THERE IS NO GREATER INVASION OF PRIVACY IN THE THIRD-PARTY SITUATION,
AND, SECOND, THAT UNCTONROLLED CONSENSUAL SURVEILLANCE IN AN ELECTRONIC
AGE IS A TOLERABLE TECHNIQUE OF LAW ENFORCEMENT, GIVEN THE VALUES AND
GOALS OF OUR POLITICAL SYSTEM.  /21/ 

THE FIRST OF THESE ASSUMPTIONS TAKES AS A POINT OF DEPARTURE THE SO
CALLED "RISK ANALYSIS" APPROACH OF LEWIS, AND LOPEZ, AND TO A LESSER
EXTENT ON LEE, OR THE EXPECTATIONS APPROACH OF KATZ.  SEE DISCUSSION IN
PART II, SUPRA.  WHILE THESE FORMULATIONS REPRESENT AN ADVANCE OVER THE
UNSOPHISTICATED TRESPASS ANALYSIS OF THE COMMON LAW, THEY TOO HAVE
THEIR LIMITATIONS AND CAN, ULTIMATELY, LEAD TO THE SUBSTITUTION OF
WORDS FOR ANALYSIS.  /22/  THE ANALYSIS MUST, IN MY VIEW, TRANSCEND THE
SEARCH FOR SUBJECTIVE EXPECTATIONS OR LEGAL ATTRIBUTION OF ASSUMPTIONS
OF RISK.  OUR EXPECTATIONS, AND THE RISKS WE ASSUME, ARE IN LARGE PART
REFLECTIONS OF LAWS THAT TRANSLATE INTO RULES THE CUSTOMS AND VALUES OF
THE PAST AND PRESENT. 

SINCE IT IS THE TASK OF THE LAW TO FORM AND PROJECT, AS WELL AS
MIRROR AND REFLECT, WE SHOULD NOT, AS JUDGES, MERELY RECITE THE
EXPECTATIONS AND RISKS WITHOUT EXAMINING THE DESIRABILITY OF SADDLING
THEM UPON SOCIETY.  THE CRITICAL QUESTION, THEREFORE, IS WHETHER UNDER
OUR SYSTEM OF GOVERNMENT, AS REFLECTED IN THE CONSTITUTION, WE SHOULD
IMPOSE ON OUR CITIZENS THE RISKS OF THE ELECTRONIC LISTENER OR OBSERVER
WITHOUT AT LEAST THE PROTECTION OF A WARRANT REQUIREMENT. 

THIS QUESTION MUST, IN MY VIEW, BE ANSWERED BY ASSESSING THE NATURE
OF A PARTICULAR PRACTICE AND THE LIKELY EXTENT OF ITS IMPACT ON THE
INDIVIDUAL'S SENSE OF SECURITY BALANCED AGAINST THE UTILITY OF THE
CONDUCT AS A TECHNIQUE OF LAW ENFORCEMENT.  FOR THOSE MORE EXTENSIVE
INTRUSIONS THAT SIGNIFICANTLY JEOPARDIZE THE SENSE OF SECURITY WHICH IS
THE PARAMOUNT CONCERN OF FOURTH AMENDMENT LIBERTIES, I AM OF THE VIEW
THAT MORE THAN SELF-RESTRAINT BY LAW ENFORCEMENT OFFICIALS IS REQUIRED
AND AT THE LEAST WARRANTS SHOULD BE NECESSARY.  CF. TERRY V. OHIO,
SUPRA; DAVIS V. MISSISSIPPI, SUPRA.             B 

THE IMPACT OF THE PRACTICE OF THIRD-PARTY BUGGING, MUST, I THINK, BE
CONSIDERED SUCH AS TO UNDERMINE THAT CONFIDENCE AND SENSE OF SECURITY
IN DEALING WITH ONE ANOTHER THAT IS CHARACTERISTIC OF INDIVIDUAL
RELATIONSHIPS BETWEEN CITIZENS IN A FREE SOCIETY.  IT GOES BEYOND THE
IMPACT ON PRIVACY OCCASIONED BY THE ORDINARY TYPE OF "INFORMER"
INVESTIGATION UPHELD IN LEWIS AND HOFFA.  THE ARGUMENT OF THE PLURALITY
OPINION, TO THE EFFECT THAT IT IS IRRELEVANT WHETHER SECRETS ARE
REVEALED BY THE MERE TATTLETALE OR THE TRANSISTOR, IGNORES THE
DIFFERENCES OCCASIONED BY THIRD-PARTY MONITORING AND RECORDING WHICH
INSURES FULL AND ACCURATE DISCLOSURE OF ALL THAT IS SAID, FREE OF THE
POSSIBILITY OF ERROR AND OVERSIGHT THAT INHERES IN HUMAN REPORTING. 

AUTHORITY IS HARDLY REQUIRED TO SUPPORT THE PROPOSITION THAT WORDS
WOULD BE MEASURED A GOOD DEAL MORE CAREFULLY AND COMMUNICATION
INHIBITED IF ONE SUSPECTED HIS CONVERSATIONS WERE BEING TRANSMITTED AND
TRANSCRIBED.  WERE THIRD-PARTY BUGGING A PREVALENT PRACTICE, IT MIGHT
WELL SMOTHER THAT SPONTANEITY-- REFLECTED IN FRIVOLOUS, IMPETUOUS,
SACRILEGIOUS, AND DEFIANT DISCOURSE-- THAT LIBERATES DAILY LIFE.  /23/
MUCH OFF-HAND EXCHANGE IS EASILY FORGOTTEN AND ONE MAY COUNT ON THE
OBSCURITY OF HIS REMAKRS, PROTECTED BY THE VERY FACT OF A LIMITED
AUDIENCE, AND THE LIKELIHOOD THAT THE LISTENER WILL EITHER OVERLOOK OF
FORGET WHAT IS SAID, AS WELL AS THE LISTENER'S INABILITY TO REFORMULATE
A CONVERSATION WITHOUT HAVING TO CONTEND WITH A DOCUMENTED RECORD. 
/24/  ALL THESE VALUES ARE SACRIFIED BY A RULE OF LAW THAT PERMITS
OFFICIAL MONITORING OF PRIVATE DISCOURSE LIMITED ONLY BY THE NEED TO
LOCATE A WILLING ASSISTANT. 

IT MATTERS LITTLE THAT CONSENSUAL TRANSMITTALS ARE LESS OBNOXIOUS
THAN WHOLLY CLANDESTINE EAVESDROPS.  THIS WAS PUT FORWARD AS
JUSTIFICATION FOR THE CONDUCT IN BOYD V. UNITED STATES, 116 U.S. 616
(1886), WHERE THE GOVERNMENT RELIED ON MITIGATING ASPECTS OF THE
CONDUCT IN QUESTION.  THE COURT, SPEAKING THROUGH MR. JUSTICE BRADLEY,
DECLINED TO COUNTENANCE LITERALISM: 

"THOUGH THE PROCEEDING IN QUESTION IS DIVESTED OF MANY OF THE
AGGRAVATING INCIDENTS OF ACTUAL SEARCH AND SEIZURE, YET, AS BEFORE
SAID, IT CONTAINS THEIR SUBSTANCE AND ESSENCE, AND EFFECTS THEIR
SUBSTANTIAL PURPOSE.  IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS
MILDEST AND LEAST REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL
PRACTICES GET THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT
APPROACHES AND SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE."  116
U.S.,AT 635. 

FINALLY, IT IS TOO EASY TO FORGET-- AND, HENCE, TOO OFTEN FORGOTTEN-
THAT THE ISSUE HERE IS WHETHER TO INTERPOSE A SEARCH WARRANT PROCEDURE
BETWEEN LAW ENFORCEMENT AGENCIES ENGAGING IN ELECTRONIC EAVESDROPPING
AND THE PUBLIC GENERALLY.  BY CASTING ITS "RISK ANALYSIS" SOLELY IN
TERMS OF THE EXPECTATIONS AND RISKS THAT "WRONGDOERS" OR "ONE
CONTEMPLATING ILLEGAL ACTIVITIES" OUGHT TO BEAR, THE PLURALITY OPINION,
I THINK, MISSES THE MARK ENTIRELY.  ON LEE DOES NOT SIMPLY MANDATE THAT
CRIMINALS MUST DAILY RUN THE RISK OF UNKNOWN EAVESDROPPERS PRYING INTO
THEIR PRIVATE AFFAIRS; IT SUBJECTS EACH AND EVERY LAW-ABIDING MEMBER OF
SOCIETY TO THAT RISK.  THE VERY PURPOSE OF INTERPOSING THE FOURTH
AMENDMENT WARRANT REQUIREMENT IS TO REDISTRIBUTE THE PRIVACY RISKS
THROUGHOUT SOCIETY IN A WAY THAT PRODUCES THE RESULTS THE PLURALITY
OPINION ASCRIBES TO THE ON LEE RULE.  ABOLITION OF ON LEE WOULD NOT END
ELECTRONIC EAVESDROPPING.  IT WOULD PREVENT PUBLIC OFFICIALS FROM
ENGAGING IN THAT PRACTICE UNLESS THEY FIRST HAD PROBABLE CAUSE TO
SUSPECT AN INDIVIDUAL OF INVOLVEMENT IN ILLEGAL ACTIVITIES AND HAD
TESTED THEIR VERSION OF THE FACTS BEFORE A DETACHED JUDICIAL OFFICER. 
THE INTEREST ON LEE FAILS TO PROTECT IS THE EXPECTATION OF THE ORDINARY
CITIZEN, WHO HAS NEVER ENGAGED IN ILLEGAL CONDUCT IN HIS LIFE, THAT HE
MAY CARRY ON HIS PRIVATE DISCOURSE FREELY, OPENLY, AND SPONTANEOUSLY
WITHOUT MEASURING HIS EVERY WORD AGAINST THE CONNOTATIONS IT MIGHT
CARRY WHEN INSTANTANEOUSLY HEARD BY OTHERS UNKNOWN TO HIM AND
UNFAMILIAR WITH HIS SITUATION OR ANALYZED IN A COLD, FORMAL RECORD
PLAYED DAYS, MONTHS, OR YEARS AFTER THE CONVERSATION.  INTERPOSITION OF
A WARRANT REQUIREMENT IS DESIGNED NOT TO SHIELD "WRONGDOERS," BUT TO
SECURE A MEASURE OF PRIVACY AND A SENSE OF PERSONAL SECURITY THROUGHOUT
OUR SOCIETY. 

THE FOURTH AMENDMENT DOES, OF COURSE, LEAVE ROOM FOR THE EMPLOYMENT
OF MODERN TECHNOLOGY IN CRIMINAL LAW ENFORCEMENT, BUT IN THE STREAM OF
CURRENT DEVELOPMENTS IN FOURTH AMENDMENT LAW I THINK IT MUST BE HELD
THAT THIRD-PARTY ELECTRONIC MONITORING, SUBJECT ONLY TO THE SELF
RESTRAINT OF LAW ENFORCEMENT OFFICIALS, HAS NO PLACE IN OUR SOCIETY. 

        IV 

I REACH THESE CONCLUSIONS NOTWITHSTANDING SEEMINGLY CONTRARY VIEWS
ESPOUSED BY BOTH CONGRESS AND AN AMERICAN BAR ASSOCIATION STUDY GROUP. 
/25/  BOTH THE ABA STUDY AND TITLE III OF THE OMNIBUS CRIME CONTROL AND
SAFE STREETS ACT OF 1968, 82 STAT. 212, 18 U.S.C. 2510 ET SEQ. (1964
ED., SUPP. V), APPEAR TO REFLECT LITTLE MORE THAN THIS COURT'S PRIOR
DECISIONS.  INDEED, THE COMPREHENSIVE PROVISIONS OF TITLE III ARE
EVIDENCE OF THE EXTENT OF CONGRESSIONAL CONCERN WITH THE IMPACT OF
ELECTRONIC SURVEILLANCE ON THE RIGHT TO PRIVACY.  THIS CONCERN IS
FURTHER MANIFESTED IN THE INTRODUCTORY SECTION OF THE SENATE COMMITTEE
REPORT.  /26/  ALTHOUGH SEC. 2511(2)(C) EXEMPTS CONSENSUAL AND
PARTICIPANT MONITORING BY LAW ENFORCEMENT AGENTS FROM THE GENERAL
PROHIBITIONS AGAINST SURVEILLANCE WITHOUT PRIOR JUDICIAL AUTHORIZATION
AND MAKES THE FRUITS ADMISSIBLE IN COURT, SEE SEC. 2515, CONGRESSIONAL
MALAISE WITH SUCH CONDUCT IS EVIDENCED BY THE CONTRASTINGLY LIMITED
ENDORSEMENT OF CONSENSUAL SURVEILLANCE CARRIED OUT BY PRIVATE
INDIVIDUALS.  /27/  WHILE INDIVIDUAL CONGRESSMEN EXPRESSED CONCERN
ABOUT AND CRITICIZED THE PROVISIONS FOR UNSUPERVISED CONSENSUAL
ELECTRONIC SURVEILLANCE CONTAINED IN SEC. 2511, /28/  THE SENATE
COMMITTEE REPORT COMMENT, TO THE EFFECT THAT "(IT (SEC. 2511(2)(C))
LARGELY REFLECTS EXISTING LAW," S. REP. NO. 1097, 90TH CONG., 2D SESS.,
93-94 (1968), FOLLOWED BY CITATIONS TO ON LEE AND LOPEZ, /29/  STRONGLY
SUGGESTS THAT THE PROVISIONS REPRESENT NOT INTRACTABLE APPROVAL OF
THESE PRACTICES, BUT RATHER AN INTENTION TO ADOPT THESE HOLDINGS AND TO
LEAVE TO THE COURTS THE TASK OF DETERMINING THEIR VIABILITY IN LIGHT OF
LATER HOLDINGS SUCH AS BERGER, OSBORN, AND KATZ.  /30/ 

I FIND IN NEITHER THE ABA STUDY NOR TITLE III ANY JUSTIFICATION FOR
IGNORING THE IDENTIFIABLE DIFFERENCE-- ALBEIT AN ELUSIVE ONE IN THE
PRESENT STATE OF KNOWLEDGE-- BETWEEN THE IMPACT ON PRIVACY OF SINGLE
PARTY INFORMER BUGGING AND THIRD-PARTY BUGGING, WHICH IN MY OPINION
JUSTIFIES DRAWING THE CONSTITUTIONAL LINE AT THIS JUNCTURE BETWEEN THE
TWO AS REGARDS THE NECESSITY FOR OBTAINING A WARRANT.  RECOGNITION OF
THIS DIFFERENCE IS, AT THE BERY LEAST, NECESSARY TO PRESERVE THE
OPENNESS WHICH IS AT THE CORE OF OUR TRADITIONS AND IS SECURE ONLY IN A
SOCIETY THAT TOLERATES OFFICIAL INVASION OF PRIVACY SIMPLY IN
CURCUMSCRIBED SITUATIONS. 

THE FOURTH AMENDMENT PROTECTS THESE TRADITIONS, AND PLACES
LIMITATIONS ON THE MEANS AND CIRCUMSTANCES BY WHICH THE GOVERNMENT MAY
COLLECT INFORMATION ABOUT ITS CITIZENS BY INTRUDING INTO THEIR PERSONAL
LIVES.  THE SPIRIT OF THE PRINCIPLE IS CAPTURED BY THE OFT-QUOTED
LANGUAGE OF BOYD V. UNITED STATES, 116 U.S.,AT 630: 

     "THE PRINCIPLES LAID DOWN IN THIS OPINION (SPEAKING OF ENTICK

  V. CARRYINGTON, 19 HOW.ST.TR. 1029 (1765)) AFFECT THE VERY

  ESSENCE OF CONSTITUTIONAL LIBERTY AND SECURITY.  THEY REACH

  FARTHER THAN THE CONCRETE FORM OF THE CASE THEN BEFORE THE COURT,

  WITH ITS ADVENTITIOUS CIRCUMSTANCES; THEY APPLY TO ALL INVASIONS

 ON THE PART OF THE GOVERNMENT AND ITS EMPLOYES OF THE SANCTITY OF

  A MAN'S HOME AND THE PRIVACIES OF LIFE.  IT IS NOT THE BREAKING

  OF HIS DOORS, AND THE RUMMANGING OF HIS DRAWERS, THAT CONSTITUTES

  THE ESSENCE OF THE OFFENCE; BUT IT IS THE INVASION OF HIS

  INDEFEASIBLE RIGHT OF PERSONAL SECURITY . . . . " 

WHAT THIS MEANS IS THAT THE BURDEN OF GUARDING PRIVACY IN A FREE
SOCIETY SHOULD NOT BE ON ITS CITIZENS; IT IS THE GOVERNMENT THAT MUST
JUSTIFY ITS NEED TO ELECRONICALLY EAVESDROP. 

        V 

NOT CONTENT TO REST UPON THE PROPOSITION THAT ON LEE REMANS SOUND
LAW, THE PLURALITY OPINION WOULD ALSO HOLD THAT THE COURT OF APPEALS
ERRED FURTHER IN DISPOSING "OF THIS CASE BASED ON ITS UNDERSTANDING OF
THE PRINCIPLES ANNOUNCED IN THE KATZ CASE," ANTE, AT 754, BECAUSE
DESIST V. UNITED STATES, 394 U.S. 244 (1969), HELD THAT KATZ GOVERNED
ONLY GOVERNMENTAL CONDUCT OCCURRING AFTER THE DECISION IN KATZ.  IT IS
DIFFICULT TO KNOW WHERE TO BEGIN TO ANALYZE SUCH A TRULY EXTRAORDINARY
ASSERTION RESPECTING THE OPERATION OF THE JUDICIAL PROCESS. 

BECAUSE THIS CASE IS HERE ON DIRECT REVIEW, EVEN WERE THE ISSUES
SQUARELY CONTROLLED BY KATZ, I WOULD UNHESITATINGLY APPLY HERE THE RULE
THERE ADOPTED, FOR THE REASONS FIRST EXPRESSED IN MY DISSENT IN DESIST,
394 U.S.,AT 256, AND ELABORATED IN MY SEPARATE OPINION IN MACKEY V.
UNITED STATES (AND COMPANION CASES), ANTE, P. 675.  I SEE NO PURPOSE IN
REPEATING AT THIS POINT THE ANALYSIS I SET FORTH IN THOSE OPINIONS. 
SUFFICE IT TO SAY THAT, IN DESIST, I WENT TO SOME LENGTH TO POINT OUT,
BY DISCUSSING A HYPOTHETICAL PROPOSITION, THAT THE FAILURE TO APPLY ANY
NEW DECISION BY THIS COURT TO CASES WHICH HAD NOT YET RUN THEIR COURSE
ON DIRECT REVIEW WAS INCONSISTENT WITH THE CASE-BY-CASE APPROACH TO
CONSTITUTIONAL DECISION AND WITH THE PROPER RELATIONSHIP OF THIS COURT
TO THE LOWER FEDERAL COURT TO ADOPT A NEW CONSTITUTIONAL RULE WHICH
THIS COURT SUBSEQUENTLY APPROVED.  394 U.S.,AT 259.  TODAY'S OPINION
STANDS AS ELOQUENT EVIDENCE OF THAT DEFECT. 

INDEED, I FIND THIS DECISION EVEN MORE TROUBLING THAN DESIST.  FOR
THE ERRORS OF DESIST ARE NOT MERELY REPEATED HERE; THEY ARE PLAINLY
COMPOUNDED.  UPON THE PLURALITY OPINION'S OWN ANALYSIS OF THE INSTANT
CASE, IT IS CLEAR THAT KATZ HAS NO DIRECT RELEVANCE TO THE PRESENT
VIABILITY OF ON LEE.  "KATZ INVOLVED NO REVELATION TO THE GOVERNMENT BY
A PARTY TO CONVERSATIONS WITH THE DEFENDANT NOR DID THE COURT INDICATE
IN ANY WAY THAT A DEFENDANT HAS A JUSTIFIABLE AND CONSTITUTIONALLY
PROTECTED EXPECTATION THAT A PERSON WITH WHOM HE IS CONVERSING WILL NOT
THEN OR LATER REVEAL THE CONVERSATION TO THE POLICE."  ANTE, AT 749. 
AS I HAVE ALREADY SHOWN, ONE NEED NOT CITE KATZ TO DEMONSTRATE THE
INABILITY OF ON LEE TO SURVIVE RECENT DEVELOPMENTS WITHOUT AT LEAST
SUBSTANTIAL REFORMULATION.  TO HOLD, THEN, THAT A MERE CITATION OF
KATZ, OR DRAWING UPON THE PHILOSOPHICAL UNDERPINNINGS OF THAT CASE IN
ORDER TO EMPLOY A GENERAL CONSTITUTIONAL APPROACH IN TUNE WITH THAT OF
THE DECISIONS OF THIS COURT, CONFLICTS WITH THE HOLDING OF DESIST IS TO
LET THIS OBSESSION WITH PROSPECTIVITY RUN RIOT. 

APPARENTLY DESIST IS NOW TO BE UNDERSTOOD AS HOLDING THAT ALL LOWER
FEDERAL COURTS ARE DISABLED FROM ADJUDICATING ON THEIR MERITS ALL
ALLEGATIONS OF FOURTH AMENDMENT ERROR NOT SQUARELY SUPPORTED BY A PRIOR
DECISION OF THIS COURT.  IF SO, ONE WONDERS WHAT PURPOSE IS SERVED BY
PROVIDING INTERMEDIATE APPELLATE REVIEW OF CONSTITUTIONAL ISSUES IN THE
FEDERAL CRIMINAL PROCESS.  WE MUST NOT FORGET THAT THIS COURT IS NOT
THE ONLY TRIBUNAL IN THE ENTIRE FEDERAL SYSTEM CHARGED WITH A
RESPONSIBILITY FOR THE NURTURE AND DEVELOPMENT OF THE FOURTH
AMENDMENT.  IT IS ONE THING TO DISABLE ALL FEDERAL COURTS, INCLUDING
THIS COURT, FROM APPLYING THE SETTLED LAW OF THE LAND TO CASES AND
CONTROVERSIES BEFORE THEM-- AS DESIST DOES WITH KATZ-- AND AT LEAST
ANOTHER GIANT STEP BACKWARD TO PRECLUDE LOWER COURTS FROM RESOLVING
WHOLLY DISPARATE CONTROVERSIES IN THE LIGHT OF CONSTITUTIONAL
PRINCIPLES.  CAN IT BE SERIOUSLY CONTENDED, AS THE PLURALITY OPINION
NECESSARILY IMPLIES, THAT THE COURT OF APPEALS SHOULD NOT BE REVERSED
TODAY ON THESE ALTERNATIVE GROUNDS HAD IT SIMPLY OMITTED TO DISCUSS
KATZ?  TO FORCE LOWER FEDERAL COURTS TO ADJUDICATE CONTROVERSIES EITHER
MECHANISTICALLY OR DISINGENUOUSLY IS FOR ME INDEFENSIBLE.  YET THIS IS
PRECISELY WHAT THE PLURALITY OPINION DOES WITH ITS ASSERTION THAT IT IS
ERROR FOR LOWER COURTS TO "DISPOSE" OF A CASE BASED ON THEIR
"UNDERSTANDING OF THE PRINCIPLES ANNOUNCED" IN KATZ FOR THE NEXT YEAR
OR SO. 

I WOULD HOLD THAT ON LEE IS NO LONGER GOOD LAW AND AFFIRM THE
JUDGMENT BELOW. 

/1/  I AGREE WITH THE PLURALITY OPINION, ANTE, AT 747 N. 1, THAT THE
ISSUE OF THE INFORMER'S CONSENT TO UTLIIZATION OF THIS TECHNIQUE IS NOT
PROPERLY BEFORE US.  WHETHER PERSONS CAN, CONSISTENT WITH
CONSTITUTIONAL PROHIBITIONS, BE TRICKED OR COERCED INTO TRANSMITTING
THEIR CONVERSATIONS, WITH OR WITHOUT PRIOR JUDICIAL APPROVAL, AND, IF
NOT, WHETHER OTHER PARTIES TO THE CONVERSATION WOULD HAVE STANDING TO
OBJECT TO THE ADMISSION AGAINST THEM OF EVIDENCE SO OBTAINED, CF.
ALDERMAN V. UNITED STATES, 394 U.S. 165 (1969), ARE QUESTIONS UPON
WHICH I EXPRESS NO OPINION. 

/2/  IN THE CASE AT HAND AGENTS WERE ALSO SURREPTITIOUSLY PLACED IN
RESPONDENT'S HOME AT VARIOUS TIMES.  NO TESTIMONY BY THESE AGENTS WAS
OFFERED AT TRIAL. 

/3/  A WESTIN, PRIVACY AND FREEDOM 131 (1967).  THIS INVESTIGATIVE
TECHNIQUE IS ALSO USED TO UNEARTH "POLITICAL" CRIMES.  "RECORDINGS OF
THE PRIVATE AND PUBLIC MEETINGS OF SUSPECT GROUPS (HAVE) BEEN GROWING. 
POLICE IN MIAMI, FLORIDA, USED A HIDDEN TRANSMITTER ON A POLICE AGENT
TO RECORD STATEMENTS MADE AT MEETINGS OF A RIGHT-WING EXTREMIST GROUP
SUSPECTED OF PLANNING ACTS OF TERRORISM.  IN 1964 A POLICE UNDERCOVER
AGENT OBTAINED RECORDINGS OF INCENDIARY STATEMENTS BY THE LEADER OF A
COMMUNIST SPLINTER MOVEMENT IN HARLEM, AT PRIVATE MEETINGS AND AT A
PUBLIC RALLY, WHICH SERVED AS THE BASIS FOR HIS CONVICTION FOR
ATTEMPTING TO OVERTHROW THE STATE GOVERNMENT."  IBID. 

/4/  PRIOR TO OSBORN V. UNITED STATES, 385 U.S. 323 (1966), AND KATZ
THE ISSUE BEFORE US, IF RAISED, WAS USUALLY DISMISSED IN A ROUTINE
FASHION WITH A CITATION TO ON LEE, BUTTRESSED BY A CITATION TO LOPEZ V.
UNITED STATES, 373 U.S. 427 (1963), WITH NO ATTEMPT TO DISTINGUISH THE
TWO CASES DESPITE THE NARROW RATIONALE OF THE LATTER.  SEE, E.G.,
UNITED STATES V. PASQUINZO, 334 F.2D 74, 75 (CA6 1964); MADDOX V.
UNITED STATES, 337 F.2D 234 (CA5 1964); BUT CF. UNITED STATES V. STONE,
232 F.SUPP.  396 (ND TEX. 1964).  THE FEW AUTHORITIES POST-DATING KATZ
HAVE DIVIDED ON THE CONTINUED VIABILITY OF THE ON LEE RESULT, COMPARE,
E.G., UNITED STATES V. JONES, 292 F.SUPP.  1001 (DC 1968), AND CASES
CITED THEREIN, 292 F.SUPP.,AT 1008, WITH DANCY V. UNITED STATES, 390
F.2D 370 (CA5 1968) (JUDGE FAHY DISSENTING); UNITED STATES V. KAUFER,
406 F.2D 550 (CA2 1969); PEOPLE V. FIEDLER, 30 APP.DIV.2D 476, 294
N.Y.S.2D 368 (1968) JUSTICES GOLDMAN AND BASTOW DISSENTING), AFF'D
WITHOUT OPINION, 24 N.Y.2D 960, 250 N.E.2D 75 (1969).  PERHAPS THE MOST
COMPREHENSIVE TREATMENTS, EXAMINING BOTH THE CASE LAW AND POLICY
CONSIDERATIONS UNDERLYING THE PRECISE ISSUE-- ELECTRONIC SUVEILLANCE
WITH THE CONSENT OF ONE OF THE PARTIES-- ARE BY PROFESSOR GREENAWALT,
THE CONSENT PROBLEM IN WIRETAPPING & EAVESDROPPING:  SURREPTITIOUS
MONITORING WITH THE CONSENT OF A PARTICIPANT IN A CONVERSATION, 68
COL.L.REV.  189 (1968), AND PROFESSOR KITCH, KATZ V. UNITED STATES:
THE LIMITS OF THE FOURTH AMENDMENT, 1968 SUPP.CT.REV.  133.  FOR AN
INTERESTING ANALYSIS OF THE IMPACT OF NONCONSENSUAL BUGGING ON PRIVACY
AND THE ROLE OF PRIOR JUDICIAL AUTHORIZATION SEE SPRITZER, ELECTRONIC
SURVEILLANCE BY LEAVE OF THE MAGISTRATE:  THE CASE IN OPPOSITION, 118
U.PA.L.REV.  169 (1969).  CRIMINAL JUSTICE, ELECTRONIC SURVEILLANCE
SEC. 4.1 (APPROVED DRAFT 1971); J. LANDYNSKI, SEARCH AND SEIZURE AND
THE SUPREME COURT 198-244 (1966); SCHWARGZ, THE LEGITIMATION OF
ELECTRONIC EAVESDROPPING:  THE POLITICS OF "LAW AND ORDER," 67
MICH.L.REV.  455, 495-496 (1969); S. DASH, R. SCHWARTZ, & R. KNOWLTON,
THE EAVESDROPPER 421-441 (1959); COMMENT, EAVESDROPPING, INFORMERS, AND
THE RIGHT OF PRIVACY:  A JUDICIAL TIGHTROPE, 52 CORNELL L.Q. 975
(1967); KING, ELECTRONIC SURVEILLANCE AND CONSTITUTIONAL RIGHTS:  SOME
RECENT DEVELOPMENTS AND OBSERVATIONS, 33 GEO.WASH.L.REV.  240 (1964);
NOTE, WIRETAPPING AND ELECTRONIC SURVEILLANCE-- TITLE III OF THE CRIME
CONTROL ACT OF 1968, 23 RUTGERS L.REV.  319 (1969); BLAKEY & HANCOCK, A
PROPOSED ELECTRONIC SURVEILLANCE CONTROL ACT, 43 NOTRE DAME LAW.  657
(1968); KAMISAR, THE WIRETAPPING-EAVESDROPPING PROBLEM:  A PROFESSOR'S
VIEW, 44 MINN.L.REV.  891 (1960); NOTE, FROM PRIVATE PLACES TO PERSONAL
PRIVACY:  A POST-KATZ STUDY OF FOURTH AMENDMENT PROTECTION, 43
N.Y.U.L.REV.  968, 973-974 (1968); SCOULAR, WIRETAPPING AND
EAVESDROPPING CONSTITUTIONAL DEVELOPMENT FROM OLMSTEAD TO KATZ, 12
ST.LOUIS L.J. 513 (1968); 20 SYRACUSE L.REV.  791 (1969); 14
VILL.L.REV.  758 (1969). 

/5/ SEE GOLDMAN V. UNITED STATES, 316 U.S. 129 (1942).  SILVERMAN V.
UNITED STATES, 365 U.S. 505 (1961), MADE EXPLICIT THAT WHICH WAS STILL
UNCLEAR AFTER GOLDMAN:  WORDS OVERHEAD BY TRESPASS ARE SUBJECT TO
FOURTH AMENDMENT PROTECTION.  SEE ALSO WONG SUN V. UNITED STATES, 371
U.S. 471 (1963). 

/6/  MR. JUSTICE JACKSON REJECTED PETITIONER'S CONTENTION THAT POY'S
DECEPTION VITIATED LEE'S CONSENT TO HIS ENTRY ON THE PREMISES.  343
U.S.,AT 752. 

/7/  343 U.S.,AT 751-752: 

"THE CONDUCT OF CHIN POY AND AGENT LEE DID NOT AMOUNT TO AN UNLAWFUL
SEARCH AND SEIZURE SUCH AS IS PROSCRIBED BY THE FOURTH AMENDMENT.  IN
GOLDMAN V. UNITED STATES, 316 U.S. 129 . . . , THE AGENTS HAD EARLIER
COMMITTED A TRESPASS IN ORDER TO INSTALL A LISTENING DEVICE WITHIN THE
ROOM ITSLEF.  SINCE THE DEVICE FAILED TO WORK, THE COURT EXPRESSLY
RESERVED DECISION AS TO THE EFFECT ON THE SEARCH-AND-SEIZURE QUESTION
OF A TRESPASS IN THAT SITUATION.  PETITIONER IN THE INSTANT CASE HAS
SEIZED UPON THAT DICTUM, APPARENTLY ON THE ASSUMPTION THAT THE PRESENCE
OF A RADIO SET WOULD AUTOMATICALLY BRING HIM WITHIN THE RESERVATION IF
HE CAN SHOW A TRESPASS. 

"BUT PETITIONER CANNOT RAISE THE UNDECIDED QUESTION, FOR HERE NO
TRESPASS WAS COMMITTED.  CHIN POY ENTERED A PLACE OF BUSINESS WITH THE
CONSENT, IF NOT BY THE IMPLIED INVITATION, OF THE PETITIONER." 

/8/  BOTH CHIEF JUSTICE WARREN, IN CONCURRENCE, 373 U.S.,AT 441, AND
MR. JUSTICE BRENNAN, WHO WROTE A DISSENTING OPINION IN WHICH HE WAS
JOINED BY JUSTICES DOUGLAS AND GOLDBERG, 373 U.S.,AT 446, WERE OF THE
VIEW THAT OLMSTEAD AND ON LEE SHOULD BE OVERRULED.  CF. UNITED STATES
V. STONE, 232 F.SUPP.  396 (ND TEX. 1964). 

/9/  WHILE SILVERMAN V. UNITED STATES, 365 U.S. 505, WOULD SEEM TO
HAVE ELIMINATED ANY LINGERING UNCERTAINTY ON THIS SCORE, CF. GOLDMAN V.
UNITED STATES, 316 U.S. 129, WONG SUN ARTICULATED THE UNSPOKEN PREMISE
OF SILVERMAN.  "THE EXCLUSIONARY RULE HAS TRADITIONALLY BARRED FROM
TRIAL PHYSICAL, TANGIBLE MATERIALS OBTAINED EITHER DURING OR AS A
DIRECT RUSULT OF AN UNLAWFUL INVASION.  IT FOLLOWS FROM OUR HOLDING IN
SILVERMAN V. UNITED STATES, 365 U.S. 606, THAT THE FOURTH AMENDMENT MAY
PROTECT AGAINST THE OVERHEARING OF VERBAL STATEMENTS AS WELL AS AGAINST
THE MORE TRADITIONAL SEIZURE OF 'PAPERS AND EFFECTS.'  SIMILARLY,
TESTIMONY AS TO MATTERS OBSERVED DURING AN UNLAWFUL INVASION HAS BEEN
EXCLUDED IN ORDER TO ENFORCE THE BASIC CONSTITUTIONAL POLICIES. 
(CITATION OMITTED.)  THUS, VERBAL EVIDENCE WHICH DERIVES SO IMMEDIATELY
FROM AN UNLAWFUL ENTRY AND AN UNAUTHORIZED ARREST AS THE OFFICERS'
ACTION IN THE PRESENT CASE IS NO LESS THE 'FRUIT' OF OFFICIAL
ILLEGALITY THAN THE MORE COMMON TANGIBLE FRUITS OF THE UNWARRANTED
INTRUSION."  371 U.S.,AT 485.  WHILE I JOINED MR. JUSTICE CLARK'S
DISSENTING OPINION, 371 U.S.,AT 498, OUR DIFFERENCES WITH THE MAJORITY
INVOLVED ONLY THEIR ANALYSIS OF PROBABLE CAUSE. 

/10/  "STRIPPED TO ITS ESSENTIALS, PETITIONER'S ARGUMENT AMOUNTS TO
SAYING THAT HE HAS A CONSTITUTIONAL RIGHT TO RELY ON POSSIBLE FLAWS IN
THE AGENT'S MEMORY, OR TO CHALLENGE THE AGENT'S CREDIBILITY WITHOUT
BEING BESET BY CORROBORATING EVIDENCE THAT IS NOT SUSCEPTIBLE OF
IMPEACHMENT.  FOR NO OTHER ARGUMENT CAN JUSTIFY EXCLUDING AN ACCURATE
VERSION OF A CONVERSATION THAT THE AGENT COULD TESTIFY TO FROM MEMORY. 
WE THINK THE RISK THAT PETITIONER TOOK IN OFFERING A BRIBE TO DAVIS
FAIRLY INCLUDED THE RISK THAT THE OFFER WOULD BE ACCURATELY REPRODUCED
IN COURT, WHETHER BY FAULTLESS MEMORY OR MECHANICAL RECORDING."  373
U.S.,AT 439. 

/11/  THE CHIEF JUSTICE AND DISSENTERS, CONCERNED WITH THE
POSSIBILITY THAT "THE MAJORITY OPINION MAY BE INTERPRETED AS
REAFFIRMING SUB SILENTIO THE RESULT IN ON LEE V. UNITED STATES,"
EXPRESSLY REPUDIATED IT.  373 U.S.,AT 441. 

/12/  IN A FOOTNOTE THE COURT IN OSBORN OUTLINED A NEW APPROACH,
FORESHADOWED BY MR. JUSTICE BRENNAN'S LOPEZ DISSENT, IN WHICH THE
DOCTRINAL BASIS OF OUR SUBSEQUENT FOURTH AMENDMENT DECISIONS MAY BE
SAID TO HAVE HAD ITS GENESIS: 

"THE REQUIREMENTS OF THE FOURTH AMENDMENT ARE NOT INFLEXIBLE, OR
OBTUSELY UNYIELDING TO THE LEGITIMATE NEEDS OF LAW ENFORCEMENT.  IT IS
AT LEAST CLEAR THAT 'THE PROCEDURE OF ANTECEDENT JUSTIFICATION BEFORE A
MAGISTRATE THAT IS CENTRAL TO THE FOURTH AMENDMENT,' (CITATIONS
OMITTED) COULD BE MADE A PRECONDITION OF LAWFUL ELECTRONIC SURVEILLANCE
. . . " OSBORN V. UNITED STATES, 385 U.S. 323, 330 N. 9, QUOTING MR.
JUSTICE BRENNAN'S DISSENTING OPINION IN LOPEZ V. UNITED STATES, 373
U.S.,AT 464. 

JUDGE GESELL IN REVIEWING THE PRECEDENTS HAS RECENTLY CONCLUDED THAT
IT WAS KATZ, READ IN CONJUNCTION WITH OSBORN, THAT BURIED ON LEE. 
UNITED STATES V. JONES, 292 F.SUPP.  1001, 1008 (DC 1968). 

/13/  SEE SCHWARTZ, THE LEGITIMATION OF ELECTRONIC EAVESDROPPING:
THE POLITICS OF "LAW AND ORDER," 67 MICH.L.REV.  455, 458-459 (1969). 

/14/  MY PRINCIPAL DISAGREEMENT WITH THE COURT IN BERGER INVOLVED
THE WISDOM OF REVIEWING THE NEW YORK STATUTE ON ITS FACE RATHER THAN
FOCUSING ON THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE, AND THE
EXPOSITION OF THE APPROPRIATE APPLICATION OF WARRANT PRINCIPLES TO
EAVESDROPPING SITUATIONS.  388 U.S.,AT 96-106. 

/15/  CF. SPRITZER, ELECTRONIC SURVEILLANCE BY LEAVE OF THE
MAGISTRATE:  THE CASE IN OPPOSITION, 118 U.PA.L.REV.  169 (1969). 

/16/  SEE BECK V. OHIO, 379 U.S. 89, 96 (1964), WHERE THE COURT
EMPHASIZED THE IMPORTANCE OF "AN OBJECTIVE PREDETERMINATION"
UNCOMPLICATED BY A PRESENTATION NOT "SUBTLY INFLUENCED BY THE FAMILIAR
SHORTCOMINGS OF HINDSIGHT JUDGMENT." 

/17/  THE CLASSIC EXPOSITION OF THE PURPOSES AND IMPORTANCE OF THE
WARRANT REQUIREMENT IS TO BE FOUND IN THE OPINION OF MR. JUSTICE
JACKSON IN HIS OPINION FOR THE COURT IN JOHNSON V. UNITED STATES, 333
U.S. 10, 13-14 (1948): 

"THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT GRASPED BY
ZEALOUS OFFICERS, IS NOT THAT IT DENIES LAW ENFORCEMENT THE SUPPORT OF
THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM EVIDENCE.  ITS
PROTECTION CONSISTS IN REQUIRING THAT THOSE INFERENCES BE DRAWN BY A
NEUTRAL AND DETACHED MAGISTRATE INSTEAD OF BEING JUDGED BY THE OFFICER
ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING OUT CRIME . .
. . THE RIGHT OF OFFICERS TO THRUST THEMSELVES INTO A HOME IS . . . A
GRAVE CONCERN, NOT ONLY TO THE INDIVIDUAL BUT TO A SOCIETY WHICH
CHOOSES TO DWELL IN REASONABLE SECURITY AND FREEDOM FROM SURVEILLANCE. 
WHEN THE RIGHT OF PRIVACY MUST REASONABLY YIELD TO THE RIGHT OF SEARCH
IS, AS A RULE, TO BE DECIDED BY A JUDICIAL OFFICER, NOT BY A POLICEMAN
OR GOVERNMENT ENFORCEMENT AGENT." 

SEE ALSO TERRY V. OHIO, 392 U.S. A (1968); UNITED STATES V.
VENTRESCA, 380 U.S. 102 (1965); AQUILAR V. TEXAS, 378 U.S. 108 (1964);
UNITED STATES, 365 U.S. 610 (1961); JONES V. UNITED STATES, 362 U.S.
257 (1960); JONES V. UNITED STATES, 357 U.S. 493 (1968); GIORDENELLO V.
UNITED STATES, 357 U.S. 480 (1958); UNITED STATES V. JEFFERS, 342 UL.S.
48 (1951); MCDONALD V. UNITED STATES, 335 U.S. 451 (1948); TRUPIANO V.
UNITED STATES 334 U.S. 699 (1948); UNITED STATES V. LEFKOWITZ, 285 U.S.
452 (1932); AGNELLO V. UNITED STATES, 269 U.S. 20 (1925). 

/18/  SEE PART II-A, SUPRA.  SEE UNITED STATES V. JONES, 292
F.SUPP.  1001 (DC 1968). 

/19/  "'OVER AND AGAIN THIS COURT HAS EMPHASIZED THAT THE MANDATE OF
THE (FOURTH) AMENDMENT REQUIRES ADHERENCE TO JUDICIAL PROCESSES,'
UNITED STATES V. JEFFERS, 342 U.S. 48, 51, AND THAT SEARCHES CONDUCTED
OUTSIDE THE JUDICIAL PROCESS, WITHOUT PRIOR APPROVAL BY JUDGE OR
MAGISTRATE, ARE PER SE UNREASONABLE UNDER THE FOURTH AMENDMENT--
SUBJECT ONLY TO A FEW SPECIFICALLY ESTABLISHED AND WELL-DELINEATED
EXCEPTIONS."  KATZ V. UNITED STATES, 389 U.S.,AT 356-357. 

THE WARRANT PROCEDURE NEED NOT ALWAYS ENTAIL AN INQUIRY INTO THE
EXISTENCE OF PROBABLE CAUSE IN THE USUAL SENSE.  CF. CAMARA V.
MUNICIPAL COURT.  FOR EXAMPLE, WHERE AN INFORMER IS BEING SENT IN TO
INVESTIGATE A DANGEROUS CRIME, AND THERE IS REASON TO BELIEVE HIS
PERSON WOULD BE IN DANGER, MONITORING MIGHT BE JUSTIFIED AND A WARRANT
ISSUED EVEN THOUGH NO PROBABLE CAUSE EXISTED TO BELIEVE THE PARTICULAR
MEETING WOULD PROVIDE EVIDENCE OF PARTICULAR CRIMINAL ACTIVITY.  CF.
WARDEN V. HAYDEN, 387 U.S. 294, 298 (1967); MCDONALD V. UNITED STATES,
335 U.S.,AT 455-456; JOHNSON V. UNITED STATES, 333 U.S.,AT 14-15; KER
V. CALIFORNIA, 374 U.S. 23 (1963); TRUPIANO V. UNITED STATES, 334 U.S.
699 (1948), ALL TAKING THE VIEW THAT EXCEPTIONS TO THE WARRANT
REQUIREMENT MAY BE MADE IN NARROWLY DEFINED SPECIAL CIRCUMSTANCES. 

/20/  I DO NOT CONSIDER CHAMBERS V. MARONEY, 399 U.S. 42 (1970), A
RETREAT FROM THE GENERAL PROPOSITION ESTABLISHED BY KATZ AND CHIMEL. 
WHILE I DISAGREED WITH THE COURT, SEE MY SEPARATE OPINION, 399 U.S.,AT
55, MOVING VEHICLES HAVE ALWAYS PRESENTED A SPECIAL FOURTH AMENDMENT
PROBLEM.  COMPARE CARROLL V. UNITED STATES, 267 U.S. 132 (1925), WITH
AGENLLO V. UNITED STATES, 269 U.S. 20 (1925). 

/21/  PROFESSOR WESTIN HAS OBSERVED: 

"IT IS OBVIOUS THAT THE POLITICAL SYSTEM IN EACH SOCIETY WILL BE A
FUNDAMENTAL FORCE IN SHAPING ITS BALANCE OF PRIVACY, SINCE CERTAIN
PATTERNS OF PRIVACY, DISCLOSURE, AND SURVEILLANCE ARE FUNCTIONAL
NECESSITIES FOR PARTICULAR KINDS OF POLITICAL REGIME.  THIS IS SHOWN
MOST VIVIDLY BY CONTRASTING PRIVACY IN THE DEMOCRATIC AND THE
TOTALITARIAN STATE."  WESTIN, SUPRA, N. 3, AT 23. 

/22/ SEE KITCH, SUPRA, N. 4, AT 141-142, 150-152. 

/23/  GREENAWALT, SUPRA, N. 4; COMMENT, EAVESDROPPING, INFORMERS,
AND THE RIGHT OF PRIVACY:  A JUDICIAL TIGHTROPE, 52 CORNLEE L.Q. 975,
983 (1967); WESTIN, SUPRA, N. 3, AT 390. 

PROFESSOR WESTIN, IN PROJECTING THE CONSEQUENCES OF UNSUPERVISED
PARTICIPANT MONITORING, HAS OBSERVED: 

"(EAVESDROPPING WITH THE CONSENT OF ONE PARTY . . . HAS BEEN THE
BASIC CHARTER FOR PRIVATE-DETECTIVE TAPS AND BUGS, FOR 'OWNER'
EAVESDROPPING ON FACILITIES THAT ARE USED BY MEMBERS OF THE PUBLIC, AND
FOR MUCH FREE-LANCE POLICE EAVESDROPPING.  ALLOWING EAVESDROPPING WITH
THE CONSENT OF ONE PARTY WOULD DESTROY THE STATUTORY PLAN OF LIMITING
THE OFFENSES FOR WHICH EAVESDROPPING BY DEVICE CAN BE USED AND
INSISTING ON A COURT-ORDER PROCESS.  AND AS TECHNOLOGY ENABLES EVERY
MAN TO CARRY HIS MICRO-MINIATURIZED RECORDER EVERYWHERE HE GOES AND
ALLOWS EVERY ROOM TO BE MONITORED SURREPTITIOUSLY BY BUILT-IN
EQUIPMENT, PERMITTING EAVESDROPPING WITH THE CONSENT OF ONE PARTY WOULD
BE TO SANCTION A MEANS OF REPRODUCING CONVERSATION THAT COULD CHOKE OFF
MUCH VITAL SOCIAL EXCHANGE." 

SEE ALSO SEPARATE VIEWS OF SENATOR HART SET FORTH IN S. REP. NO.
1097, 90TH CONG., 2D SESS., 175 (1968); PROPOSED LEGISLATION ON
WIRETAPPING AND EAVESDROPPING AFTER BERGER V. NEW YORK AND KATZ V.
UNITED STATES, 7 BULL.  NO. 2 OF THE ASSOCIATION OF THE BAR OF THE CITY
OF NEW YORK 1, 3, 22-26 (AUG. 1968). 

/24/  FROM THE SAME STANDPOINT IT MAY ALSO BE THOUGHT THAT
ELECTRONIC RECORDING BY AN INFORMER OF A FACE-TO-FACE CONVERSATION WITH
A CRIMINAL SUSPECT, AS IN LOPEZ, SHOULD BE DIFFERENTIATED FROM THIRD
PARTY MONITORING, AS IN ON LEE AND THE CASE BEFORE US, IN THAT THE
LATTER ASSURES REVELATION TO THE GOVERNMENT BY OBVIATING THE
POSSIBILITY THAT THE INFORMER MAY BE TEMPTED TO RENEGE IN HIS
UNDERTAKING TO PASS ON TO THE GOVERNMENT ALL THAT HE HAS LEARNED. 
WHILE THE CONTINUING VITALITY OF LOPEZ IS NOT DRAWN DIRECTLY INTO
QUESTION BY THIS CASE, CANDOR COMPELS ME TO ACKNOWLEDGE THAT THE VIEWS
EXPRESSED IN THIS OPINION MAY IMPINGE UPON THAT PART OF THE REASONING
IN LOPEZ WHICH SUGGESTED THAT A SUSPECT HAS NO RIGHT TO ANTICIPATE
UNRELIABLE TESTIMONY.  I AM NOW PERSUADED THAT SUCH AN APPROACH
MISCONCEIVES THE BASIC ISSUE, FOCUSING, AS IT DOES, ON THE INTERESTS OF
A PARTICULAR INDIVIDUAL RATHER THAN EVALUATING THE IMPACT OF A PRACTICE
ON THE SENSE OF SECURITY THAT IS THE TRUE CONCERN OF THE FOURTH
AMENDMENT'S PROTECTION OF PRIVACY.  DISTINCTIONS DO, HOWEVER, EXIST
BETWEEN LOPEZ, WHERE A KNOWN GOVERNMENT AGENT USES A RECORDING DEVICE,
AND THIS CASE WHICH INVOLVES THIRD-PARTY OVERHEARING.  HOWEVER UNLIKELY
THAT THE PARTICIPANT RECORDER WILL NOT PLAY HIS TAPES, THE FACT OF THE
MATTER IS THAT IN A THIRD-PARTY SITUATION THE INTRUSTON IS
INSTANTANEOUS.  MOREOVER, DIFFERENCES IN THE PRIOR RELATIONSHIP BETWEEN
THE INVESTIGATOR AND THE SUSPECT MAY PROVIDE A FOCUS FOR FUTURE
DISTINCTIONS.  SEE GREENAWALT, SUPRA, N. 4. 

/25/  SEE ABA PROJECT, SUPRA, N. 4.  THE COMMENTARY STATES AT THE
OUTSET:  "THIS STANDARD REFLECTS THE PREVAILING LAW."  THE DRAFTERS
APPARENTLY TAKE AS THEIR STARTING POINT THE RISK ANALYSIS APPROACH,
RELYING ON CASES HOLDING THAT CONTENTS OF LETTERS MAY BE REVEALED WHERE
OTHERWISE LAWFULLY OBTAINED.  STROUD V. UNITED STATES, 251 U.S. 15
(1919); EX PARTE JACKSON, 96 U.S. 727, 737 (1878); SEE ALSO BLAKEY &
HANCOCK, A PROPOSED ELECTRONIC SURVEILLANCE CONTROL ACT, SUPRA, N. 4,
AT 663, N. 11.  THE VARIOUS STATE PROVISIONS ARE SET FORTH IN
GREENAWALT, SUPRA, N. 4, AT 207-211. 

/26/  SEE S. REP. NO. 1097, 90TH CONG., 2D SESS., 69 (1968). 

/27/  SEE SEC. 2511(2)(D), WHICH PROHIBITS NONGOVERNMENTAL RECORDING
AND LISTENING WHEN THE "COMMUNICATION IS INTERCEPTED FOR THE PURPOSE OF
COMMITTING ANY CRIMINAL OR TORTIOUS ACT IN VIOLATION OF THE
CONSTITUTION OR LAWS OF THE UNITED STATES OR OF ANY STATE OR FOR THE
PURPOSE OF COMMITTING ANY OTHER INJURIOUS ACT." 

/28/  SEE S. REP. NO. 1097, SUPRA, N. 26, AT 175 (REMARKS OF SEN.
HART); 114 CONG.REC.  11598-11599, 14470-14472. 

/29/  S. REP. NO. 1097, SUPRA, N. 26, AT 93-94. 

/30/  INDEED, THE PLAIN THRUST OF TITLE III APPEARS TO BE TO
ACCOMODATE THE HOLDINGS OF BERGER AND KATZ, AND PROVIDES CONSIDERABLE
REASSURANCE TO ME IN ADOPTING THE VIEWS EXPRESSED HEREIN WHICH WOULD
DOUBTLESS, WITHOUT MORE, CAST A CLOUD UPON THE CONSTITUTIONALITY OF
SEC. 2511.  SINCE THE TITLE III QUESTION HAS BEEN NEITHER BRIEFED NOR
ARGUED, AS THIS CASE AROSE PRIOR TO ITS ENACTMENT, I WOULD EXPRESSLY
RESERVE JUDGMENT SHOULD IT PROVE UPON FURTHER STUDY THAT CONGRESS HAD
AN AFFIRMATIVE INTENTION TO RESTRICT WARRANT REQUIREMENTS TO
NONCONSENSUAL SURVEILLANCE.  WE WOULD THEN HAVE TO FACE THE QUESTION,
SUMMARILY DEALT WITH IN ANOTHER CONTEXT IN KATZENBACH V. MORGAN, 384
U.S. 641, 651 N. 10 (1966), WHAT DEFERENCE SHOULD BE GIVEN A
CONGRESSIONAL DETERMINATION THAT CERTAIN PROCEDURES NOT PLAINLY
VIOLATIONS OF DUE PROCESS, SHOULD BE PERMITTED.  SEE GREENAWALT, SUPRA,
N. 4, AT 232 N. 207.  WHETHER CONGRESS MAY PLACE RESTRICTIONS ON
BUGGING BY LOCAL LAW ENFORCEMENT NOT MANDATED BY THE FOURTEENTH
AMENDMENT IS ALSO AN UNANSWERED QUESTION.  SEE SPRITZER, SUPRA, N. 15,
AT 177 N. 46. 

MR. JUSTICE MARSHALL, DISSENTING. 

I AM CONVINCED THAT THE CORRECT VIEW OF THE FOURTH AMENDMENT IN THE
AREA OF ELECTRONIC SURVEILLANCE IS ONE THAT BRINGS THE SAFEGUARDS OF
THE WARRANT REQUIREMENT TO BEAR ON THE INVESTIGATORY ACTIVITY INVOLVED
IN THIS CASE.  IN THIS REGARD I AGREE WITH THE DISSENTS OF MR. JUSTICE
DOUGLAS AND MR. JUSTICE HARLAN.  IN SHORT, I BELIEVE THAT ON LEE V.
UNITED STATES, 343 U.S. 747 (1952), CANNOT BE CONSIDERED VIABLE IN
LIGHT OF THE CONSTITUTIONAL PRINCIPLES ARTICULATED IN KATZ V. UNITED
STATES, 389 U.S. 347 (1967), AND OTHER CASES.  AND FOR REASONS
EXPRESSED BY RM. JUSTICE FORTAS IN DISSENT IN DESIST V. UNITED STATES,
394 U.S. 244, 269 (1969), I DO NOT THINK WE SHOULD FEEL CONSTRAINED TO
EMPLOY A DISCARDED THEORY OF THE FOURTH AMENDMENT IN EVALUATING THE
GOVERNMENTAL INTRUSIONS CHALLENGED HERE. 

ASSISTANT ATTORNEY GENERAL WILSON REARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, JOSEPH
J. CONNOLLY, JOHN S. MARTIN, JR., JEROME M. FEIT, BEATRICE ROSENBERG,
AND SIDNEY M. GLAZER. 

JOHN L. BOEGER REARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE MORRIS A. SHENKER AND CHAUNCEY ESKRIDGE. 

ABRAHAM GLASSER AND MAURICE EDELBAUM FILED A BRIEF FOR JOHN G.
BROADY ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :










HILL V. CALIFORNIA, 401 U.S. 797 


       HILL V. CALIFORNIA

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

        NO. 51.  ARGUED JANUARY 19, 1970-- REARGUED OCTOBER 21,

           1970-- DECIDED APRIL 5, 1971 


TWO MEN, WHO WERE DRIVING PETITIONER HILL'S CAR, WERE ARRESTED FOR
NARCOTICS POSSESSION.  A SEARCH OF THE CAR DISCLOSED PROPERTY STOLEN IN
A ROBBERY THE PREVIOUS DAY.  BOTH MEN ADMITTED TAKING PART IN THE
ROBBERY AND IMPLICATED HILL, WHO SHARED AN APARTMENT WITH ONE OF THEM. 
THE GUNS USED IN THE ROBBERY AND OTHER STOLEN PROPERTY WERE REPORTED TO
BE IN THE APARTMENT.  AN INVESTIGATING OFFICER CHECKED OFFICIAL RECORDS
ON HILL, VERIFYING HIS ASSOCIATION WITH ONE OF THE INFORMANTS, HIS
DESCRIPTION, ADDRESS, AND MAKE OF CAR.  THE POLICE, WITH PROBABLE CAUSE
TO ARREST HILL, BUT WITHOUT A SEARCH OR ARREST WARRANT, WENT TO THIS
APARTMENT, AND THERE FOUND A MAN MATCHING HILL'S DESCRIPTION.  THE
ARRESTEE DENIED THAT HE WAS HILL (AND, IN FACT, HE WAS NOT), AND DENIED
KNOWLEDGE OF ANY GUNS IN THE APARTMENT, BUT THE POLICE, WHO SPOTTED A
GUN AND AMMUNITION IN PLAIN VIEW, ARRESTED THE MAN, SEARCHED THE
APARTMENT, AND SEIZED GUNS, STOLEN PROPERTY, OTHER EVIDENTIARY ITEMS,
AND TWO PAGES OF HILL'S DIARY.  HILL WAS CONVICTED OF ROBBERY,
SUBSTANTIALLY ON THE BASIS OF ITEMS SEIZED IN THE SEARCH.  THE TRIAL
JUDGE RULED THAT THE POLICE ACTED IN GOOD FAITH IN BELIEVING THE
ARRESTEE WAS HILL.  THE DISTRICT COURT OF APPEAL AGREED THAT THE
OFFICERS ACTED IN GOOD FAITH AND THAT THE ARREST WAS VALID, BUT THOUGHT
THE SEARCH UNREASONABLE.  THE CALIFORNIA SUPREME COURT REVERSED,
SUSTAINING BOTH THE ARREST AND THE SEARCH.  HILL ARGUES THAT CHIMEL V.
CALIFORNIA, 395 U.S. 752, NARROWING THE PERMISSIBLE SCOPE OF SEARCHES
INCIDENT TO ARREST, DECIDED AFTER THE AFFIRMANCE OF HIS CONVICTION BY
THE STATE COURTS, SHOULD BE APPLIED TO HIS CASE IN THIS COURT ON DIRECT
REVIEW.  HELD: 

1.  CHIMEL, SUPRA, IS INAPPLICABLE TO SEARCHES ANTEDATING THAT
DECISION, REGARDLESS OF WHETHER THE CASE IS ON DIRECT OR COLLATERAL
REVIEW OR INVOLVES STATE OR FEDERAL PRISONERS.  WILLIAMS V. UNITED
STATES, ANTE, P. 646.  P. 802. 

2.  THE ARREST AND SEARCH WERE VALID UNDER THE FOURTH AMENDMENT,
SINCE THE POLICE HAD PROBABLE CAUSE TO ARREST HILL AND REASONABLY
BELIEVED THE ARRESTEE WAS HILL.  ACCORDINGLY, THEY WERE ENTITLED TO DO
WHAT THE LAW ALLOWED THEM TO DO HAD THE ARRESTEE IN FACT BEEN HILL,
THAT IS, TO SEARCH INCIDENT TO ARREST AND TO SEIZE EVIDENCE OF THE
CRIME THEY HAD PROBABLE CAUSE TO BELIEVE HILL COMMITTED.  PP. 802-805. 

3.  SINCE HILL'S ARGUMENT THAT THE ADMISSION INTO EVIDENCE OF PAGES
OF HIS DIARY VIOLATED HIS FIFTH AMENDMENT RIGHTS WAS NOT RAISED BELOW,
IT IS NOT PROPERLY BEFORE THIS COURT.  PP. 805-806. 

69 CAL.2D 550, 446 P.2D 521, AFFIRMED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, AND BLACKMUN, JJ., JOINED.  BLACK, J.,
CONCURRED IN THE RESULT.  HARLAN, J., FILED A CONCURRING AND DISSENTING
OPINION, IN WHICH MARSHALL, J., JOINED, POST, P. 806.  DOUGLAS, J.,
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

ON JUNE 4, 1966, FOUR ARMED MEN ROBBED A RESIDENCE IN STUDIO CITY,
CALIFORNIA.  ON JUNE 5, ALFRED BAUM AND RICHARD BADER WERE ARRESTED FOR
POSSESSION OF NARCOTICS; AT THE TIME OF THEIR ARREST, THEY WERE DRIVING
PETITIONER HILL'S CAR, AND A SEARCH OF THE CAR PRODUCED PROPERTY STOLEN
IN THE STUDIO CITY ROBBERY THE DAY BEFORE.  BADER AND BAUM BOTH
ADMITTED TAKING PART IN THE JUNE 4 ROBBERY, AND BOTH IMPLICATED HILL. 
BADER TOLD THE POLICE THAT HE WAS SHARING AN APARTMENT WITH HILL AT
9311 SEPULVEDA BOULEVARD.  HE ALSO STATED THAT THE GUNS USED IN THE
ROBBERY AND OTHER STOLEN PROPERTY WERE IN THE APARTMENT.  ON JUNE 6,
BAUM AND BADER AGAIN TOLD THE POLICE THAT HILL HAD BEEN INVOLVED IN THE
JUNE 4 ROBBERY. 

ONE OF THE INVESTIGATING OFFICERS THEN CHECKED OFFICIAL RECORDS ON
HILL, VERIFYING HIS PRIOR ASSOCIATION WITH BADER, HIS AGE AND PHYSICAL
DESCRIPTION, HIS ADDRESS, AND THE MAKE OF HIS CAR.  THE INFORMATION THE
OFFICER UNCOVERED CORRESPONDED WITH THE GENERAL DESCRIPTIONS BY THE
ROBBERY VICTIMS AND THE STATEMENTS MADE BY BAUM AND BADER. 

HILL CONCEDES THAT THIS INFORMATION GAVE THE POLICE PROBABLE CAUSE
TO ARREST HIM, AND THE POLICE UNDERTOOK TO DO SO ON JUNE 6.  FOUR
OFFICERS WENT TO THE SEPULVEDA BOULEVARD APARTMENT, VERIFIED THE
ADDRESS, AND KNOCKED.  ONE OF THE OFFICERS TESTIFIED:  "THE DOOR WAS
OPENED AND A PERSON WHO FIT THE DESCRIPTION EXACTLY OF ARCHIE HILL, AS
I HAD RECEIVED IT FROM BOTH THE CARDS AND FROM BAUM AND BADER, ANSWERED
THE DOOR . . . . WE PLACED HIM UNDER ARREST FOR ROBBERY." 

THE POLICE HAD NEITHER AN ARREST NOR A SEARCH WARRANT.  AFTER
ARRESTING THE MAN WHO ANSWERED THE DOOR, THEY ASKED HIM WHETHER HE WAS
HILL AND WHERE THE GUNS AND STOLEN GOODS WERE.  THE ARRESTEE REPLIED
THAT HE WAS NOT HILL, THAT HIS NAME WAS MILLER, THAT IT WAS HILL'S
APARTMENT AND THAT HE WAS WAITING FOR HILL.  HE ALSO CLAIMED THAT HE
KNEW NOTHING ABOUT ANY STOLEN PROPERTY OR GUNS, ALTHOUGH THE POLICE
TESTIFIED THAT AN AUTOMATIC PISTOL AND A CLIP OF AMMUNITION WERE LYING
IN PLAIN VIEW ON A COFFEE TABLE IN THE LIVING ROOM WHERE THE ARREST
TOOK PLACE.  THE ARRESTEE THEN PRODUCED IDENTIFICATION INDICATING THAT
HE WAS IN FACT MILLER, BUT THE POLICE WERE UNIMPRESSED AND PROCEEDED TO
SEARCH THE APARTMENT-- LIVING ROOM, BEDROOM, KITCHEN AREA, AND BATH--
FOR A PERIOD WHICH ONE OFFICER DESCRIBED AS "A COUPLE OF HOURS." 

DURING THE COURSE OF THE SEARCH, THE POLICE SEIZED SEVERAL ITEMS:
RENT RECEIPTS AND PERSONAL CORRESPONDENCE BEARING HILL'S NAME FROM A
DRESSER DRAWER IN THE BEDROOM; A STARTER PISTOL, TWO SWITCHBLADE
KNIVES, A CAMERA AND CASE STOLEN IN THE STUDIO CITY ROBBERY, AND TWO
HOODMASKS MADE FROM WHITE T-SHIRTS, ALL FROM THE BEDROOM; A .22-CALIBER
REVOLVER FROM UNDER THE LIVING ROOM SOFA; AND TWO PAGES OF PETITIONER
HILL'S DIARY FROM A BEDROOM DRESSER DRAWER.  /1/ 

ON OCTOBER 20, 1966, HILL WAS FOUND GUILTY OF ROBBERY ON THE BASIS
OF EVIDENCE PRODUCED AT THE PRELIMINARY HEARING AND THE TRIAL.  /2/
EYEWITNESSES TO THE ROBBERY WERE UNABLE TO IDENTIFY HILL; THE ONLY
SUBSTANTIAL EVIDENCE OF HIS GUILT CONSISTED OF THE ITEMS SEIZED IN THE
SEARCH OF HIS APARTMENT.  IN SUSTAINING THE ADMISSIBILITY OF THE
EVIDENCE, THE TRIAL JUDGE RULED THAT THE ARRESTING IN FACT HILL.  /3/
THE DISTRICT COURT OF APPEAL AGREED THAT MILLER WAS VALID BUT
NONETHELESS THOUGHT THE INCIDENT SEARCH OF HILL'S APARTMENT
UNREASONABLE UNDER THE FOURTH AMENDMENT.  67 CAL.RPTR.  389 (1968). 
/4/  THE CALIFORNIA SUPREME COURT IN TURN RESERVED, SUSTAINING BOTH THE
ARREST AND THE SEARCH.  69 CAL.2D 550, 446 P.2D 521 (1968).  WE GRANTED
CERTIORARI, 396 U.S. 818 (1969), AND NOW AFFIRM THE JUDGMENT OF THE
CALIFORNIA SUPREME COURT. 

        I 

PETITIONER ARGUES THAT CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969),
DECIDED AFTER HIS CONVICTION WAS AFFIRMED BY THE CALIFORNIA SUPREME
COURT, SHOULD BE APPLIED TO HIS CASE, WHTCH IS BEFORE US ON DIRECT
REVIEW.  CHIMEL NARROWED THE PERMISSIBLE SCOPE OF SEARCHES INCIDENT TO
ARREST, BUT IN WILLIAMS V. UNITED STATES AND ELKANICH V. UNITED STATES,
ANTE, P. 646, WE HELD CHIMEL INAPPLICABLE TO SEARCHES OCCURRING BEFORE
THE DATE OF DECISION IN THAT CASE-- REGARDLESS OF WHETHER A CASE WAS
STILL ON DIRECT REVIEW WHEN CHIMEL WAS DECIDED, SEE WILLIAMS, SUPRA, OR
WHETHER A CHIMEL CHALLENGE WAS ASSERTED IN A SUBSEQUENT COLLATERAL
ATTACK ON A CONVICTION.  SEE ELKANICH, SUPRA.  WE ALSO STATED THAT IN
LIGHT OF PAST DECISIONS THERE WAS NO DIFFERENCE IN CONSTITUTIONAL TERMS
BETWEEN STATE AND FEDERAL PRISONERS INSOF,R AS RETROACTIVE APPLICATION
TO THEIR CASES OF A NEW INTERPRETATION OF THE BILL OF RIGHTS IS
CONCERNED.  ANTE, AT 656.  THE SEARCH OF HILL'S APARTMENT, PERMISSIBLE
IN SCOPE UNDER PRE-CHIMEL STANDARDS, WILL NOT BE RETROSPECTIVELY
INVALIDATED BECAUSE OF THAT DECISION. 

        II 

BASED ON OUR OWN EXAMINATION OF THE RECORD, WE FIND NO REASON TO
DISTURB EITHER THE FINDINGS OF THE CALIFORNIA COURTS THAT THE POLICE
HAD PROBABLE CAUSE TO ARREST HILL AND THAT THE ARRESTING OFFICRES HAD A
REASONABLE, GOOD-FAITH BELIEF THAT THE ARRESTEE MILLER WAS IN FACT
HILL, OR THE CONCLUSION THAT "(WHEN THE POLICE HAVE PROBABLE CAUSE TO
ARREST ONE PARTY, AND WHEN THEY REASONABLY MISTAKE A SECOND PARTY FOR
THE FIRST PARTY, THEN THE ARREST OF THE SECOND PARTY IS A VALID
ARREST."  69 CAL.2D, AT 553, 446 P.2D, AT 523.  /5/  THE POLICE
UNQUESTIONABLY HAD PROBALE CAUSE TO ARREST HILL; THEY ALSO HAD HIS
ADDRESS AND A VERIFIED DESCRIPTION.  THE MAILBOX AT THE INDICATED
ADDRESS LISTED HILL AS THE OCCUPANT OF THE APARTMENT.  UPON GAINING
ENTRY TO THE APARTMENT, THEY WERE CONFRONTED WITH ONE WHO FIT THE
DESCRIPTION OF HILL RECEIVED FROM VARIOUS SOURCES.  /6/  THAT PERSON
CLAIMED HE WAS MILLER, NOT HILL.  BUT ALIASES AND FALSE IDENTIFICATIONS
ARE NOT UNCOMMON.  /7/  MOREOVER, THERE WAS A LOCK ON THE DOOR AND
MILLER'S EXPLANATION FOR HIS MODE OF ENTRY WAS NOT CONVINCING.  /8/  HE
ALSO DENIED KNOWLEDGE OF FIREARMS IN THE APARTMENT ALTHOUGH A PISTOL
AND LOADED AMMUNITION CLIP WERE IN PLAIN VIEW IN THE ROOM.  /9/  THE
UPSHOT WAS THAT THE OFFICERS IN GOOD FAITH BELIEVED MILLER WAS HILL AND
ARRESTED HIM.  THEY WERE QUITE WRONG AS IT TURNED OUT, AND SUBJECTIVE
GOOD-FAITH BELIEF WOULD NOT IN ITSELF JUSTIFY EITHER THE ARREST OR THE
SUBSEQUENT SEARCH.  BUT SUFFICIENT PROBABILITY, NOT CERTAINTY, IS THE
TOUCHSTONE OF REASONABLENESS UNDER THE FOURTH AMENDMENT AND ON THE
RECORD BEFORE US THE OFFICERS' MISTAKE WAS UNDERSTANDABLE AND THE
ARREST A REASONABLE RESPONSE TO THE SITUATION FACING THEM AT THE TIME. 

NOR CAN WE AGREE WITH PETITIONER THAT HOWEVER VALID THE ARREST OF
MILLER, THE SUBSEQUENT SEARCH VIOLATED THE FOURTH AMENDMENT.  IT IS
TRUE THAT MILLER WAS NOT HILL; NOR DID MILLER HAVE AUTHORITY OR CONTROL
OVER THE PREMISES, ALTHOUGH AT THE VERY LEAST HE WAS HILL'S GUEST.  BUT
THE QUESTION IS NOT WHAT EVIDENCE WOULD HAVE BEEN ADMISSIBLE AGAINST
HILL (OR AGAINST MILLER FOR THAT MATTER) IF THE POLICE, WITH PROBABLE
CAUSE TO ARREST MILLER, HAD ARRESTED HIM IN HILL'S APARTMENT AND THEN
CARRIED OUT THE SEARCH AT ISSUE.  HERE THERE WAS PROBABLE CAUSE TO
ARREST HILL AND THE POLICE ARRESTED MILLER IN HILL'S APARTMENT,
REASONABLY BELIEVING HIM TO BE HILL.  IN THESE CIRCUMSTANCES THEPOLICE
WERE ENTITLED TO DO WHAT THE LAW WOULD HAVE ALLOWED THEM TO DO IF
MILLER HAD IN FACT BEEN HILL, THAT IS, TO SEARCH INCIDENT TO ARREST AND
TO SEIZE EVIDENCE OF THE CRIME THE POLICE HAD PROBABLE CAUSE TO BELIEVE
HILL HAD COMMITTED.  WHEN JUDGED IN ACCORDANCE WITH "THE FACTUAL AND
PRACTICAL CONSIDERATIONS OF EVERYDAY LIFE ON WHICH REASONABLE AND
PRUDENT MEN, NOT LEGAL TECHNICIANS, ACT," BRINEGAR V. UNITED STATES,
338 U.S. 160, 175 (1949), THE ARREST AND SUBSEQUENT SEARCH WERE
REASONABLE AND VALID UNDER THE FOURTH AMENDMENT. 

        III 

FINALLY, IN HIS BRIEF IN THIS COURT, PETITIONER ARGUES THAT THE
ADMISSION IN EVIDENCE OF THE TWO PAGES OF HIS DIARY-- PAGES WHICH
CONTAINED WHAT AMOUNTED TO A CONFESSION OF THE ROBBERY-- VIOLATED THE
FIFTH AMENDMENT UNDER BOYD V. UNITED STATES, 116 U.S. 616 (1886). 
COUNSEL FOR HILL CONCEDED AT ORAL ARGUMENT THAT THE FIFTH AMENDMENT
ISSUE WAS NOT RAISED AT TRIAL.  NOR WAS THE ISSUE RAISED, BRIEFED, OR
ARGUED IN THE CALIFORNIA APPELLATE COURTS.  /10/  THE PETITION FOR
CERTIORARI LIKEWISE IGNORED IT.  IN THIS POSTURE OF THE CASE, THE
QUESTION, ALTHOUGH BRIEFED AND ARGUED HERE, IS NOT PROPERLY BEFORE US.
IN CARDINALE V. LOUISIANA, 394 U.S. 437 (1969), CERTIORARI WAS GRANTED
TO CONSIDER THE CONSTITUTIONALITY OF A LOUISIANA STATUTE, BUT AT ORAL
ARGUMENT IT DEVELOPED THAT THE FEDERAL QUESTION HAD NEVER BEEN RAISED,
PRESERVED, OR PASSED UPON IN THE STATE COURTS.  RELYING ON A LONG LINE
OF CASES, WE DISMISSED THE WRIT FOR WANT OF JURISDICTION.  394 U.S.,AT
439.  IN ADDITION, WE STATED THAT THERE WERE SOUND POLICY REASONS FOR
ADHERING TO SUCH A RULE.  IN THE CONTEXT OF THE CASE, WE INDICATED THE
DESIRABILITY OF ALLOWING STATE COURTS TO PASS FIRST ON THE
CONSTITUTIONALITY OF STATE STATUTES IN LIGHT OF A FEDERAL
CONSTITUTIONAL CHALLENGE; THIS ASSURES BOTH AN ADEQUATE RECORD AND THAT
THE STATES HAVE FIRST OPPORTUNITY TO PROVIDE A DEFINITIVE
INTERPRETATION OF THEIR STATUTES.  WE ALSO INDICATED THAT A FEDERAL
HABEAS CORPUS REMEDY MIGHT REMAIN IF NO STATE PROCEDURE FOR RAISING THE
ISSUE WAS AVAILABLE FOLLOWING DISMISSAL OF THE WRIT.  THESE
CONSIDERATIONS ARE NO LESS APPLICABLE IN THIS CASE.  WE THEREFORE DO
NOT REACH THE FIFTH AMENDMENT QUESTION AND AFFIRM THE JUDGMENT OF THE
SUPREME COURT OF CALIFORNIA. 

              IT IS SO ORDERED. 

/1/  ALL OF THESE ITEMS, EXCEPT THE RENT RECEIPTS AND
CORRESPONDENCE, WERE LATER INTRODUCED IN EVIDENCE AT THE PRELIMINARY
EXAMINATION INVOLVING BAUM, BADER, AND HILL.  A RADIO STOLEN IN THE
STUDIO CITY ROBBERY WAS ALSO INTRODUCED, SINCE IT WAS FOUND IN HILL'S
CAR WHEN BAUM AND BADER WERE ARRESTED.  FINALLY, THE STATE INTRODUCED
TWO HANDWRITING EXEMPLARS EXECUTED BY PETITIONER HILL AFTER HIS
ARREST.  ALTHOUGH THE RENT RECEIPTS AND PERSONAL CORRESPONDENCE WERE
NOT INTRODUCED IN EVIDENCE, ONE OF THE OFFICERS WHO PARTICIPATED IN THE
ARREST AND SEARCH AT THE HILL APARTMENT TESTIFIED THAT IN THE SAME
DRAWER WHERE HE FOUND THE DIARY PAGES "THERE WERE RENT RECEIPTS,
NUMEROUS STACK OF RENT RECEIPTS AT THIS PARTICULAR APARTMENT, MADE OUT
TO ARCHIE HILL, AND THERE WERE SEVERAL OTHER PIECES OF PAPER,
CORRESPONDENCE, NOTES FROM GIRLS, AND SO FORTH, ALL TO AN ARCHIE OR AN
ARCHIE HILL."  NO OBJECTION WAS OFFERED TO THIS TESTIMONY. 

THEREAFTER, PETITIONER'S CASE WAS SEVERED FROM THAT OF BAUM AND
BADER.  HILL WAIVED A JURY AND SUBMITTED THE CASE FOR TRIAL ON THE
TRANSCRIPT OF THE PRELIMINARY HEARING AND THE EXHIBITS THERE
INTRODUCED.  THE STATE CALLED ONE ADDITIONAL WITNESS AT TRIAL-- OFFICER
GASTALDO-- WHO GAVE A MORE COMPLETE VERSION OF THE INVESTIGATION OF THE
ROBBERY AND OF THE ARREST OF THE MAN WHO TURNED OUT TO BE MILLER.  THE
TWO DIARY PAGES SEIZED IN HILL'S APARTMENT CONTAINED WHAT WAS IN EFFECT
A FULL CONFESSION OF HIS PARTICIPATION IN THE STUDIO CITY ROBBERY.  THE
ADDITIONAL TESTIMONY OF OFFICER GASTALDO WAS CRITICAL IN ESTABLISHING
THE LEGALITY OF THE ARREST AND SUBSEQUENT SEARCH.  AFTER HEARING THIS
TESTIMONY, THE TRIAL JUDGE DENIED PETITIONER'S MOTION TO SUPPRESS THE
ITEMS SEIZED, INCLUDING, OF COURSE, THE DIARY PAGES.  HILL PRESENTED NO
FURTHER EVIDENCE AT TRIAL, AND WAS FOUND GUILTY AS CHARGED.  A MOTION
FOR A NEW TRIAL WAS SUBSEQUENTLY DENIED, AND PETITIONER'S APPEALS IN
THE CALIFORNIA COURTS FOLLOWED. 

IN HIS BRIEF IN THIS COURT, PETITIONER ATTACKS THE ADMISSION OF THE
DIARY PAGES ON A GROUND NEVER ADVANCED BELOW.  FOR THE REASONS
EXPRESSED IN PART III OF THIS OPINION, WE DO NOT RULE UPON THESE
CONTENTIONS. 

/2/  SEE N. 1, SUPRA. 

/3/  THE TRIAL JUDGE STATED: 

"I HAVE FULLY REVIEWED THE EVIDENCE.  I HAVE DETERMINED THAT THE
OFFICER IN GOOD FAITH BELIEVED THAT THE DEFENDANT, OR THAT THE PERSON
WHO WAS ARRESTED-- NOT THE DEFENDANT IN THIS CASE-- WAS BELIEVED BY THE
OFFICER IN GOOD FAITH TO BE MR. HILL, AND THAT WHETHER OR NOT THIS
DOCUMENT CONSISTING OF TWO PAGES OF THE PRIVATE DIARY OF MR. HILL
SHOULD BE ADMITTED DEPENDS ON WHETHER OR NOT AT THE TIME OF THE ARREST
AND THE SEARCH OF THE PREMISES, THE OFFICER ACTED IN GOOD FAITH." 

/4/  JUSTICE FORD STATED: 

"WHILE THE DOCTRINE OF PROBABLE CAUSE ASSURES A BALANCE BETWEEN THE
RIGHTS OF THE INDIVIDUAL AND THOSE OF THE GOVERNMENT WITH RESPECT TO
THE MATTER OF ARREST, THE CONSTITUTIONAL PROTECTION AGAINST
UNREASONABLE SEARCHES, PARTICULARLY OF A PERSON'S HOME, WOULD BE LESS
THAN COMPLETE IF A PLENARY SEARCH COULD BE JUSTIFIED AS INCIDENT TO AN
ARREST OF A PERSON MISTAKENLY BELIEVED BY AN OFFICER TO BE IN IMMEDIATE
CHARGE OF THE PREMISES.  SUCH A CASE IS NOT ONE WHERE THE RIGHT OF
PRIVACY MUST REASONABLY YIELD TO THE RIGHT OF SEARCH."  67 CA.RPTR.,AT
391. 

/5/  THE CALIFORNIA SUPREME COURT RELIED ON PEOPLE V. KITCHENS, 46
CAL.2D 260, 263-264, 294 P.2D 17, 19-20 (1956); PEOPLE V. MILLER, 193
CAL.APP.2D 838, 14 CAL.RPTR.  704 (1961), AND PEOPLE V. CAMPOS, 184
CAL.APP.2D 489, 7 CAL.RPTR.  513 (1960).  SEE ALSO PEOPLE V. LOPEZ, 269
CAL.APP.2D 461, 468 N. 2, 74 CAL.RPTR.  740, 744 N. 2 (1969) (DICTUM). 
/6/  AT THE PRELIMINARY HEARING AND TRIAL, THE ONLY DISPARITIES IN
DESCRIPTION ESTABLISHED WERE THAT MILLER WAS TWO INCHES TALLER AND 10
POUNDS HEAVIER THAN HILL. 

/7/  IN DENYING THE MOTION TO SUPPRESS, THE TRIAL JUDGE TOOK
JUDICIAL NOTICE OF THE FACT "THAT THOSE WHO ARE APPREHENDED AND ARE
ARRESTED MANY TIMES ATTEMPT TO AVOID ARREST BY GIVING FALSE
IDENTIFICATION." 

/8/  PETITIONER POINTS OUT THAT THE OFFICERS HAD NO IDEA HOW MILLER
GAINED ACCESS TO THE HILL APARTMENT, AND ASSERTS THAT IT WAS IMPROPER
FOR THEM TO ASSUME THAT HE WAS LAWFULLY THERE.  IT IS UNDISPUTED THAT
MILLER WAS THE ONLY OCCUPANT OF THE APARTMENT.  ONE OF THE OFFICERS
TESTIFIED THAT THERE WAS A LOCK ON THE DOOR AND THAT HE HAD ASKED
MILLER HOW HE HAD GOTTEN INTO THE APARTMENT; MILLER MADE NO SPECIFIC
REPLY, EXCEPT TO REITERATE THAT HE HAD COME IN AND WAS WAITING FOR
HILL, THE TENANT. 

/9/  PETITIONER ALSO CLAIMS THAT IT WAS UNREASONABLE FOR THE OFFICERS
TO DISREGARD MILLER'S PROFFERED IDENTIFICATION.  HOWEVER, MILLER'S
ANSWER TO THE QUESTION ABOUT FIREARMS COULD REASONABLY BE REGARDED AS
EVASIVE, AND HIS SUBSEQUENT PRODUCTION OF IDENTIFICATION AS THEREFORE
ENTITLED TO LITTLE WEIGHT.  PETITIONER STRESSES THAT MILLER WAS
SUBSEQUENTLY BOOKED IN HIS OWN NAME WHEN TAKEN TO THE STATION HOUSE,
ARGUING THAT THIS DEMONSTRATES THAT THE THAT THE OFFICERS'  BELIEF THAT
MILLER WAS HILL WAS UNREASONABLE.  HOWEVER, THE TRIAL JUDGE FOUND THAT
THE ARRESTING OFFICER WAS NOT RESPONSIBLE FOR THE BOOKING PROCEDURES
UNDER WHICH MILLER WOULD BE BOOKED UNDER WHATEVER NAME HE GAVE AT THE
STATION HOUSE.  THIS CONCLUSION IS BUTTRESSED BY THE FACT THAT MILLER
WAS NOT RELEASED FROM CUSTODY FOR A DAY AND A HALF, AFTER A THOROUGH
CHECK OF HIS IDENTIFICATION REVEALED THAT HE HAD IN FACT TOLD THE TRUTH
ABOUT HIS IDENTITY, DESPITE HIS EVASIVENESS IN DEALING WITH THE
OFFICERS AT THE APARTMENT. 

/10/  TR. OF ORAL REARG.  34-35. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR THE
DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE MARSHALL JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT'S OPINION EXCEPT FOR ITS CONCLUSION THAT THE
CHIMEL CASE IS NOT TO BE APPLIED TO THIS ONE. 

TWO TERMS AGO, IN CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969), WE HELD
THAT A SEARCH WITHOUT A WARRANT, BUT INCIDENT TO A LAWFUL ARREST, MUST
BE NARROWLY CONFINED IN SCOPE IF IT IS TO PASS CONSTITUTIONAL MUSTER. 
IN SUCH CIRCUMSTANCES, WE SAID: 

"THERE IS AMPLE JUSTIFICATION . . . FOR A SEARCH OF THE ARRESTEE'S
PERSON AND THE AREA 'WITHIN HIS IMMEDIATE CONTROL'-- CONSTRUING THAT
PHRASE TO MEAN THE AREA FROM WITHIN WHICH HE MIGHT GAIN POSSESSION OF A
WEAPON OR DESTRUCTIBLE EVIDENCE. 

"THERE IS NO COMPARABLE JUSTIFICATION, HOWEVER, FOR ROUTINELY

  SEARCHING ANY ROOM OTHER THAN THAT IN WHICH AN ARREST OCCURS--

  OR, FOR THAT MATTER, FOR SEARCHING THROUGH ALL THE DESK DRAWERS

  OR OTHER CLOSED OR CONCEALED AREAS IN THAT ROOM ITSELF.  SUCH

  SEARCHES, IN THE ABSENCE OF WELL-RECOGNIZED EXCEPTIONS, MAY BE

  MADE ONLY UNDER THE AUTHORITY OF A SEARCH WARRANT.  THE

  'ADHERENCE TO JUDICIAL PROCESSES' MANDATED BY THE FOURTH

  AMENDMENT REQUIRES NO LESS."  395 U.S.,AT 763 (FOOTNOTE

  OMITTED). 

THE SEARCH HERE INVOLVED, FULLY DESCRIBED IN THE COURT'S OPINION,
PLAINLY EXCEEDED THE BOUNDS SET FORTH IN CHIMEL.  THE STATE CONTENDS
THAT THE SEARCH HERE WAS CONSISTENT WITH CHIMEL BECAUSE CONDUCTED IN
THE EVENING WHEN IT WAS NOT POSSIBLE TO OBTAIN A SEARCH WARRANT. 
WHATEVER VALIDITY SUCH A LIMITING PRINCIPLE MIGHT HAVE IN OTHER
CONTEXTS, IT CERTAINLY CANNOT PROPERLY BE INVOKED HERE.  BAUM AND BADER
HAD IMPLICATED HILL AT LEAST 24 HOURS PRIOR TO THE SEARCH OF HILL'S
APARTMENT.  MOREOVER, THE STATE DOES NOT EXPLAIN WHY IT WOULD NOT HAVE
BEEN POSSIBLE TO OBSERVE THE APARTMENT AFTER THE MISTAKEN ARREST OF
MILLER AS HILL AND THEN TEST BEFORE A MAGISTRATE THE VALIDITY OF THEIR
BELIEF THAT THEY HAD PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT
AUTHORIZING A COMPLETE SEARCH OF THE APARTMENT. 

BECAUSE I BELIEVE THIS CASE REVEALS AN OBVIOUS VIOLATION OF CHIMEL
AND BECAUSE I CONSIDER WE ARE DUTY BOUND TO APPLY THE PRINCIPLES THERE
ENUNCIATED TO CASES, LIKE THIS ONE, BEFORE US ON DIRECT REVIEW, SEE MY
SEPARATE OPINION IN MACKEY V. UNITED STATES (AND COMPANION CASES),
ANTE, P. 675, DECIDED TODAY, I AM COMPELLED TO CAST MY VOTE FOR
REVERSAL OF THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA. 

JOSEPH AMATO, APPOINTED BY THE COURT, 396 U.S. 999, REARGUED THE
CAUSE FOR PETITIONER. 

RONALD M. GEORGE, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, REARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL. 

KEITH C. MONROE FILED A BRIEF FOR THE ORANGE COUNTY CRIMINAL COURTS
BAR ASSOCIATION ET AL. AS AMICI CURIAE URGING REVERSAL.  DUKE W. DUNBAR
ATTORNEY GENERAL, PRO SE, AND JOHN P. MOORE, DEPUTY ATTORNEY GENERAL,
FILED A BRIEF FOR THE ATTORNEY GENERAL OF COLORADO ET AL. AS AMICI
CURIAE. 
..END :











REWIS V. UNITED STATES, 401 U.S. 808 


       REWIS ET AL. V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

        NO. 5342.  ARGUED JANUARY 19, 1971-- DECIDED APRIL 5, 1971 


PETITIONERS CONCUCTED A LOTTERY OPERATION IN FLORIDA, NEAR THE
GEORGIA BORDER.  THEY WERE CONVICTED ALONG WITH TWO GEORGIA RESIDENTS
WHO PLACED BETS AT PETITIONERS' ESTABLISHMENT, OF VIOLATING 18 U.S.C.
1952, THE TRAVEL ACT, WHICH PROHIBITS INTERSTATE TRAVEL WITH THE INTENT
TO "PROMOTE, MANAGE, ESTABLISH, CARRY ON, OR FACILITATE" CERTAIN
ILLEGAL ACTIVITY.  THE DISTRICT COURT INSTRUCTED THE JURY THAT IF THE
GEORGIA BETTORS TRAVELED TO FLORIDA FOR THE PURPOSE OF GAMBLING, THEY
VIOLATED THE ACT, AND THAT A DEFENDANT COULD BE FOUND GUILTY UNDER THE
AIDING AND ABETTING STATUTE, 18 U.S.C. 2, WITHOUT PROOF THAT HE HAD
PERSONALLY PERFORMED EVERY ACT CONSTITUTING THE CHARGED OFFENSE.  THE
COURT OF APPEALS REVERSED THE CONVICTIONS OF THE GEORGIA BETTORS,
HOLDING THAT SEC. 1952 DID NOT MAKE IT A FEDERAL CRIME MERELY TO CROSS
A STATE LINE TO PLACE A BET, ESTABLISHMENT OPERATORS ARE RESPONSIBLE
FOR THE INTERSTATE TRAVEL OF THEIR CUSTOMERS.  HELD:  CONDUCTING A
GAMBLING OPERATION FREQUENTED BY OUT-OF-STATE BETTORS DOES NOT, WITHOUT
MORE, CONSTITUTE A VIOLATION OF THE TRAVEL ACT.  PP. 811-814. 

418 F.2D 1218, REVERSED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL MEMBERS
JOINED EXCEPT WHITE, J., WHO TOOK NO PART IN THE DECISION OF THE CASE. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE, PETITIONERS CHALLENGE THEIR CONVICTIONS UNDER THE
TRAVEL ACT, 18 U.S.C. SEC. 1952, WHICH PROHIBITS INTERSTATE TRAVEL IN
FURTHERANCE OF CERTAIN CRIMINAL ACTIVITY.  /1/  ALTHOUGH THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NARROWED AN EXPANSIVE
INTERPRETATION OF THE ACT, THE COURT OF APPEALS AFFIRMED PETITIONERS'
CONVICTIONS.  FOR THE REASONS STATED BELOW, WE REVERSE. 

PETITIONERS, JAMES REWIS AND MARY LEE WILLIAMS, WERE CONVICTED ALONG
WITH TWO OTHER DEFENDANTS IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF FLORIDA.  /2/  THEIR CONVICTIONS AROSE FROM A
LOTTERY, OR NUMBERS OPERATION, WHICH PETITIONERS ADMITTEDLY RAN IN
YULEE, FLORIDA, A SMALL COMMUNITY LOCATED A FEW MILES SOUTH OF THE
GEORGIA-FLORIDA STATE LINE.  PETITIONERS ARE FLORIDA RESIDENTS, AND
THERE IS NO EVIDENCE THAT THEY AT AND TIME CROSSED STATE LINES IN
CONNECTION WITH THE OPERATION OF THEIR LOTTERY.  THE OTHER TWO
CONVICTED DEFENDANTS ARE GEORGIA RESIDENTS WHO TRAVELED FROM THEIR
GEORGIA HOMES TO PLACE BETS AT PETITIONERS' ESTABLISHMENT IN YULEE. 

THE DISTRICT COURT INSTRUCTED THE JURY THAT MERE BETTORS IN A
LOTTERY VIOLATED FLORIDA LAW, AND THAT IF THE BETTORS TRAVELED
INTERSTATE FOR THE PURPOSE OF GAMBLING, THEY ALSO VIOLATED THE TRAVEL
ACT.  PRESUMABLY REFERRING TO PETITIONERS, THE DISTRICT COURT FURTHER
CHARGED THAT A DEFENDANT COULD BE FOUND GUILTY UNDER THE AIDING AND
ABETTING STATUTE, 18 U.S.C. 2, /3/  WITHOUT PROOF THAT HE PERSONALLY
PERFORMED EVERY ACT CONSTITUTING THE CHARGED OFFENSE.  ON APPEAL, THE
FIFTH CIRCUIT HELD THAT SEC. 1952 DID NOT MAKE IT A FEDERAL CRIME
MERELY TO CROSS A STATE LINE FOR THE PURPOSE OF PLACING A BET AND
REVERSED THE CONVICTIONS OF THE TWO GEORGIA RESIDENTS BECAUSE THE
EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SHOW THAT THEY WERE
ANYTHING OTHER THAN CUSTOMERS OF THE GAMBLING OPERATION.  /4/  HOWEVER,
THE COURT OF APPEALS UPHELD PETITIONERS' CONVICTIONS ON THE GROUND THAT
OPERATORS OF GAMBLING ESTABLISHMENTS ARE RESPONSIBLE FOR THE INTERSTATE
TRAVEL OF THEIR CUSTOMERS.  418 F.2D 1218, 1222. 

WE AGREE WITH THE COURT OF APPEALS THAT IT CANNOT BE SAID, WITH
CERTAINTY SUFFICIENT TO JUSTIFY A CRIMINAL CONVICTION, THAT CONGRESS
INTENDED THAT INTERSTATE TRAVEL BY MERE CUSTOMERS OF A GAMBLING
ESTABLISHMENT SHOULD VIOLATE THE TRAVEL ACT.  /5/  BUT WE ARE UNABLE TO
CONCLUDE THAT CONDUCTING A GAMBLING OPERATION FREQUENTED BY OUT-OF
STATE BETTORS, BY ITSELF, VIOLATES THE ACT.  SECTION 1952 PROHIBITS
INTERSTATE TRAVEL WITH THE INTENT TO "PROMOTE, MANAGE, ESTABLISH, CARRY
ON, OR FACILITATE" CERTAIN KINDS OF ILLEGAL ACTIVITY; AND THE ORDINARY
MEANING OF THIS LANGUAGE SUGGESTS THAT THE TRAVELER'S PURPOSE MUST
INVOLVE MORE THAN THE DESIRE TO PATRONIZE THE ILLEGAL ACTIVITY. 
LEGISLATIVE HISTORY OF THE ACT IS LIMITED, BUT DOES REVEAL THAT SEC.
1952 WAS AIMED PRIMARILY AT ORGANIZED CRIME AND, MORE SPECIFICALLY, AT
PERSONS WHO RESIDE IN ONE STATE WHILE OPERATING OR MANAGING ILLEGAL
ACTIVITIES LOCATED IN ANOTHER.  /6/  IN ADDITION, WE ARE STRUCK BY WHAT
CONGRESS DID NOT SAY.  GIVEN THE EASE WITH WHICH CITIZENS OF OUR NATION
ARE ABLE TO TRAVEL AND THE EXISTENCE OF MANY MULTISTATE METROPOLITAN
AREAS, SUBSTANTIAL AMOUNTS OF CRIMINAL ACTIVITY, TRADITIONALLY SUBJECT
TO STATE REGULATION, ARE PATRONIZED BY OUT-OF-STATE CUSTOMERS.  IN SUCH
A CONTEXT, CONGRESS WOULD CERTAINLY RECOGNIZE THAT AN EXPANSIVE TRAVEL
ACT WOULD ALTER SENSITIVE FEDERAL-STATE RELATIONSHIPS, COULD OVEREXTEND
LIMITED FEDERAL POLICE RESOURCES, AND MIGHT WELL PRODUCE SITUATIONS IN
WHICH THE GEOGRAPHIC ORIGIN OF CUSTOMERS, A MATTER OF HAPPENSTANCE,
WOULD TRANSFORM RELATIVELY MINOR STATE OFFENSES INTO FEDERAL FELONIES. 
IT IS NOT FOR US TO WEIGH THE MERITS OF THESE FACTORS, BUT THE FACT
THAT THEY ARE NOT EVEN DISCUSSED IN THE LEGISLATIVE HISTORY OF SEC.
1952 STRONGLY SUGGESTS THAT CONGRESS DID NOT INTEND THAT THE TRAVEL ACT
SHOULD APPLY TO CRIMINAL ACTIVITY SOLELY BECUASE THAT ACTIVITY IS AT
TIMES PATRONIZED BY PERSONS FROM ANOTHER STATE.  IN SHORT, NEITHER
STATUTORY LANGUAGE NOR LEGISLATIVE HISTORY SUPPORTS SUCH A BROAD
RANGING INTERPRETATION OF SEC. 1952.  AND EVEN IF THIS LACK OF SUPPORT
WERE LESS APPARENT, AMBIGUITY CONCERNING THE AMBIT OF CRIMINAL STATUTES
SHOULD BE RESOLVED IN FAVOR OF LENITY, BELL V. UNITED STATES, 349 U.S.
81, 83 (1955). 

THE GOVERNMENT CONCEDES AS MUCH, BUT OFFERS AN ALTERNATIVE
CONSTRUCTION OF THE TRAVEL ACT-- THAT THE ACT IS VIOLATED WHENEVER THE
OPERATOR OF AN ILLEGAL ESTABLISHMENT CAN REASONABLY FORESEE THAT
CUSTOMERS WILL CROSS STATE LINES FOR THE PURPOSE OF PATRONIZING THE
ILLEGAL OPERATION OR WHENEVER THE OPERATOR ACTIVELY SEEKS TO ATTRACT
BUSINESS FROM ANOTHER STATE.  THE FIRST HALF OF THIS PROPOSED
INTERPRETATION-- REASONABLE FORESEEABILITY OF INTERSTATE PATRONAGE--
DOES NOT MERIT ACCEPTANCE.  WHENEVER INDIVIDUALS ACTUALLY CROSS STATE
LINES FOR THE PURPOSE OF PATRONIZING A CRIMINAL ESTABLISHMENT, IT WILL
ALMOST ALWAYS BE REASONABLE TO SAY THAT THE OPERATORS OF THE
ESTABLISHMENT COULD HAVE FORESEEN THAT SOME OF THEIR CUSTOMERS WOULD
COME FROM OUT OF STATE.  SO, FOR PRACTICAL PURPOSES, THIS ALTERNATIVE
CONSTRUCTION IS ALMOST AS EXPANSIVE AS INTERPRETATIONS THAT WE HAVE
ALREADY REJECTED.  IN ADDITION, THERE IS LITTLE, IF ANY, EVIDENCE THAT
CONGRESS INTENDED THAT FORESEEABILITY SHOULD GOVERN CRIMINAL LIABILITY
UNDER SEC. 1952. 

THERE MAY, HOWEVER, BE GREATER SUPPORT FOR THE SECOND HALF OF THE
GOVERNMENT'S PROPOSED INTERPRETATION-- THAT ACTIVE ENCOURAGEMENT OF
INTERSTATE PATRONAGE VIOLATES THE ACT.  OF COURSE, THE CONDUCT DEEMED
TO CONSTITUTE ACTIVE ENCOURAGEMENT MUST BE MORE THAN MERELY CONDUCTING
THE ILLEGAL OPERATION; OTHERWISE, THIS INTERPRETATION WOULD ONLY
RESTATE OTHER CONSTRUCTIONS WHICH WE HAVE REJECTED.  STILL, THERE ARE
CASES IN WHICH FEDERAL COURTS HAVE CORRECTLY APPLIED SEC. 1952 TO THOSE
INDIVIDUALS WHOSE AGENTS OR EMPLOYEES CROSS STATE LINES IN FURTHERANCE
OF ILLEGAL ACTIVITY, SEE, E.G., UNITED STATES V. CHAMBERS, 382 F.2D
910, 913-914 (CA6 1967); UNITED STATES V. BARROW, 363 F.2D 62, 64-65
(CA3 1966), CERT. DENIED, 385 U.S. 1001 (1967); UNITED STATES V. ZIZZO,
338 F.2D 577, 580 (CA7 (1964), CERT. DENIED, 381 U.S. 915 (1965), AND
THE GOVERNMENT ARGUES THAT THE PRINCIPLES OF THOSE DECISIONS SHOULD BE
EXTENDED TO COVER PERSONS WHO ACTIVELY SEEK INTERSTATE PATRONAGE. 
ALTHOUGH WE ARE CITED TO NO CASES THAT HAVE GONE SO FAR AND ALTHOUGH
MUCH OF WHAT WE HAVE SAID CASTS SUBSTANTIAL DOUBT ON THE GOVERNMENT'S
BROAD ARGUMENT, THERE MAY BE OCCASIONAL SITUATIONS IN WHICH THE CONDUCT
ENCOURAGING INTERSTATE PATRONAGE SO CLOSELY APPROXIMATES THE CONDUCT OF
A PRINCIPAL IN A CRIMINAL AGENCY RELATIONSHIP THAT THE TRAVEL ACT IS
VIOLATED.  BUT WE NEED NOT RULE ON THIS PART OF THE GOVERNMENT'S THEORY
BECAUSE IT IS NOT THE INTERPRETATION OF SEC. 1952 UNDER WHICH
PETITIONERS WERE CONVICTED.  THE JURY WAS NOT CHARGED THAT IT MUST FIND
THAT PETITIONERS ACTIVELY SOUGHT INTERSTATE PATRONAGE.  AND WE ARE NOT
INFORMED OF ANY ACTION BY PETITIONERS, OTHER THAN ACTUALLY CONDUCTING
THEIR LOTTERY, THAT WAS DESIGNED TO ATTRACT OUT-OF-STATE CUSTOMERS.  AS
A RESULT, THE GOVERNMENT'S PROPOSED INTERPRETATION OF THE TRAVEL ACT
CANNOT BE EMPLOYED TO UPHOLD THESE CONVICTIONS. 

              REVERSED. 

/1/  TITLE 18 U.S.C. 1952 (1964 ED. AND SUPP. V) PROVIDES: 

"(A) WHOEVER TRAVELS IN INTERSTATE OR FOREIGN COMMERCE OR USES ANY
FACILITY IN INTERSTATE OR FOREIGN COMMERCE, INCLUDING THE MAIL, WITH
INTENT TO-- 

"(1) DISTRIBUTE THE PROCEEDS OF ANY UNLAWFUL ACTIVITY; OR 

"(2) COMMIT ANY CRIME OF VIOLENCE TO FURTHER ANY UNLAWFUL ACTIVITY;
OR 

"(3) OTHERWISE PROMOTE, MANAGE, ESTABLISH, CARRY ON, OR FACILITATE
THE PROMOTION, MANAGEMENT, ESTABLISHMENT, OR CARRYING ON, OF ANY
UNALWFUL ACTIVITY, 

"AND THEREAFTER PERFORMS OR ATTEMPTS TO PERFORM ANY OF THE ACTS
SPECIFIED IN SUBPARAGRAPHS (1), (2), AND (3), SHALL BE FINED NOT MORE
THAN $10,000 OR IMPRISONED FOR NOT MORE THAN FIVE YEARS, OR BOTH. 

"(B) AS USED IN THIS SECTION 'UNLAWFUL ACTIVITY' MEANS (1) ANY
BUSINESS ENTERPRISE INVOLVING GAMBLING, LIQUOR ON WHICH THE FEDERAL
EXCISE TAX HAS NOT BEEN PAID, NARCOTICS, OR PROSTITUTION OFFENSES IN
VIOLATION OF THE LAWS OF THE STATE IN WHICH THEY ARE COMMITTED OR OF
THE UNITED STATES, OR (2) EXTORTION, BRIBERY, OR ARSON IN VIOLATION OF
THE LAWS OF THE STATE IN WHICH COMMITTED OR OF THE UNITED STATES." 

/2/  PETITIONERS WERE CONVICTED OF EIGHT SUBSTANTIVE VIOLATIONS
UNDER SEC. 1952 AND OF CONSPIRACY TO VIOLATE THE SECTION.  PETITIONER
REWIS WAS SENTENCED TO FIVE YEARS' IMPRISONMENT ON EACH COUNT, TO RUN
CONCURRENTLY.  PETITIONER WILLIAMS WAS SENTENCED TO THREE YEARS'
IMPRISONMENT ON EACH COUNT, TO RUN CONCURRENTLY, SUBJECT TO PAROLE
UNDER 18 U.S.C. 4208(A)(2).  PETITIONER REWIS WAS ALSO CONVICTED OF TWO
COUNTS OF HAVING FAILED TO PURCHASE A WAGERING TAX STAMP.  THESE LATTER
TWO CONVICTIONS WERE REVERSED BY THE COURT OF APPEALS UNDER THE
INTERVENING DECISIONS OF THIS COURT IN MARCHETTI V. UNITED STATES, 390
U.S. 39 (1968), AND GROSSO V. UNITED STATES, 390 U.S. 62 (1968). 

/3/  18 U.S.C. 2 PROVIDES: 

"(A) WHOEVER COMMITS AN OFFENSE AGAINST THE UNITED STATES OR AIDS,
ABETS, COUNSELS, COMMANDS, INDUCES OR PROCURES ITS COMMISSION, IS
PUNISHABLE AS A PRINCIPAL. 

"(B) WHOEVER WILLFULLY CAUSES AN ACT TO BE DONE WHICH IF DIRECTLY
PERFORMED BY HIM OR ANOTHER WOULD BE AN OFFENSE AGAINST THE UNITED
STATES, IS PUNISHABLE AS A PRINCIPAL." 

/4/ 418 F.2D 1218.  THE GOVERNMENT HAS NOT SOUGHT REVIEW OF THAT
PART OF THE COURT OF APPEALS DECISION REVERSING THE CONVICTION OF THE
TWO GEORGIA RESIDENTS. 

/5/  BOTH PARTIES CORRECTLY CONCEDE THAT THE QUESTION IN THIS CASE
ARE SOLELY STATUTORY.  NO ISSUE OF CONSTITUTIONAL DIMENSION IS
PRESENTED. 

/6/  INCORPORATED IN THE SENATE REPORT (S. REP. NO. 644, 87TH CONG.,
1ST SESS., 2-3, DATED JULY 27,1961) THE FOLLOWING APPEARS: 

"THE BILL, S. 1653, WAS INTRODUCED BY THE CHAIRMAN OF THE COMMITTEE,
SENATOR JAMES O. EASTLAND, ON APRIL 18, 1961, ON THE RECOMMENDATION OF
THE ATTORNEY GENERAL, ROBERT F. KENNEDY, AS A PART OF THE ATTORNEY
GENERAL'S LEGISLATIVE PROGRAM TO COMBAT ORGANIZED CRIME AND
RACKETEERING. 

"THE ATTORNEY GENERAL TESTIFIED BEFORE THE COMMITTEE IN SUPPORT OF
THE BILL, S. 1653, ON JUNE 6, 1961, AND COMMENTED: 

"'WE ARE SEEKING TO TAKE EFFECTIVE ACTION AGAINST THE RACKETEER WHO
CONDUCTS AN UNLAWFUL BUSINESS BUT LIVES FAR FROM THE SCENE IN COMFORT
AND SAFETY, AS WELL AS AGAINST OTHER HOODLUMS. 

"'LET ME SAY FROM THE OUTSET THAT WE DO NOT SEEK OR INTEND TO IMPEDE
THE TRAVEL OF ANYONE EXCEPT PERSONS ENGAGED IN ILLEGAL BUSINESSES AS
SPELLED OUT IN THE BILL . . . 

"'THE TARGET CLEARLY IS ORGANIZED CRIME.  THE TRAVEL THAT WOULD BE
BANNED IS TRAVEL "IN FURTHERANCE OF A BUSINESS ENTERPRISE" WHICH
INVOLVES GAMBLING, LIQUOR, NARCOTICS, AND PROSTITUTION OFFENSES OR
EXTORTION OR BRIBERY.  OBVIOUSLY, WE ARE NOT TRYING TO CURTAIL THE
SPORADIC, CASUAL INVOLVEMENT IN THESE OFFENSES, BUT RATHER A CONTINUOUS
COURSE OF CONDUCT SUFFICIENT FOR IT TO BE TERMED A BUSINESS
ENTERPRISE.' 

        .         .          .          . 

"'OUR INVESTIGATIONS ALSO HAVE MADE IT QUITE CLEAR THAT ONLY THE
FEDERAL GOVERNMENT CAN SHUT OFF THE FUNDS WHICH PERMIT THE TOP MEN OF
ORGANIZED CRIME TO LIVE FAR FROM THE SCENE AND, THEREFORE, REMAIN
IMMUNE FROM THE LOCAL OFFICIALS.'" 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 

ALBERT J. DATZ ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

SIDNEY M. GLZER ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, BEATRICE ROSENBERG, AND MICHAEL G. KELLY. 
..END :



ROGERS V. BELLEI, 401 U.S. 815 


       ROGERS, SECRETARY OF STATE V. BELLEI

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

  DISTRICT OF COLUMBIA

        NO. 24.  ARGUED JANUARY 15, 1970-- REARGUED NOVEMBER 12,

           1970-- DECIDED APRIL 5, 1971 


APPELLEE CHALLENGES THE CONSTITUTIONALITY OF SEC. 301(B) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, WHICH PROVIDES THAT ONE WHO
ACQUIRES UNITED STATES CITIZENSHIP BY VIRTUE OF HAVING BEEN BORN ABROAD
TO PARENTS, ONE OF WHOM IS AN AMERICAN CITIZEN, WHO HAS MET CERTAIN
RESIDENCE REQUIREMENTS, SHALL LOSE HIS CITIZENSHIP UNLESS HE RESIDES IN
THIS COUNTRY CONTINUOUSLY FOR FIVE YEARS BETWEEN THE AGES OF 14 AND
28.  THE THREE-JUDGE DISTRICT COURT HELD THE SECTION UNCONSTITUTIONAL,
CITING AFROYIM V. RUSK, 387 U.S. 253, AND SCHNEIDER V. RUSK, 377 U.S.
163.  HELD:  CONGRESS HAS THE POWER TO IMPOSE THE CONDITION SUBSEQUENT
OF RESIDENCE IN THIS COUNTRY ON APPELLEE, WHO DOES NOT COME WITHIN THE
FOURTEENTH AMENDMENT'S DEFINITION OF CITIZENS AS THOSE "BORN OR
NATURALIZED IN THE UNITED STATES," AND ITS IMPOSITION IS NOT
UNREASONABLE, ARBITRARY, OR UNLAWFUL.  AFROYIM V. RUSK, SUPRA, AND
SCHNEIDER V. RUSK, SUPRA, DISTINGIUSHED.  PP. 820-836. 

296 F.SUPP.  1247, REVERSED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND HARLAN, STEWART, AND WHITE, JJ., JOINED.  BLACK, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED, POST,
P. 836.  BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS, J.,
JOINED, POST, P. 845. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

UNDER CONSTITUTIONAL CHALLENGE HERE, PRIMARILY ON FIFTH AMENDMENT
DUE PROCESS GROUNDS, BUT ALSO ON FOURTEENTH AMENDMENT GROUNDS, IS SEC.
301(B) OF THE IMMIGRATION AND NATIONALITY ACT OF JUNE 27, 1952, 66
STAT. 236, 8 U.S.C. 1401(B). 

WHO "SHALL BE NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH." 
PARAGRAPH (7) OF SEC. 301(A) INCLUDES IN THAT DEFINITION A PERSON BORN
ABROAD "OF PARENTS ONE OF WHOM IS AN ALIEN, AND THE OTHER A CITIZEN OF
THE UNITED STATES" WHO HAS MET SPECIFIED CONDITIONS OF RESIDENCE IN
THIS COUNTRY.  SECTION 301(B), HOWEVER, PROVIDES THAT ONE WHO IS A
CITIZEN AT BIRTH UNDER SEC. 301(A)(7) SHALL LOSE HIS CITIZENSHIP
UNLESS, AFTER AGE 14 AND BEFORE AGE 28, HE SHALL COME TO THE UNITED
STATES AND BE PHYSICALLY PRESENT HERE CONTINUOUSLY FOR AT LEAST FIVE
YEARS.  WE QUOTE THE STATUTE IN THE MARGIN.  /1/ 

THE PLAN THUS ADOPTED BY CONGRESS WITH RESPECT TO A PERSON OF THIS
CLASSIFICATION WAS TO BESTOW CITIZENSHIP AT BIRTH BUT TO TAKE IT AWAY
UPON THE PERSON'S FAILURE TO COMPLY WITH A POST-AGE-14 AND PRE-AGE-28
RESIDENTIAL REQUIREMENT.  IT IS THIS DEPRIVAL OF CITIZENSHIP, ONCE
BESTOWED, THAT IS UNDER ATTACK HERE. 

        I 

THE FACTS ARE STIPULATED: 

1.  THE APPELLEE, ALDO MARIO BELLEI (HEREINAFTER THE PLAINTIFF), WAS
BORN IN ITALY ON DECEMBER 22, 1939.  HE IS NOW 31 YEARS OF AGE. 

2.  THE PLAINTIFF'S FATHER HAS ALWAYS BEEN A CITIZEN OF ITALY AND
NEVER HAS ACQUIRED UNITED STATES CITIZENSHIP.  THE PLAINTIFF'S MOTHER,
HOWEVER, WAS BORN IN PHILADELPHIA IN 1915 AND THUS WAS A NATIVE-BORN
UNITED STATES CITIZEN.  SHE HAS RETAINED THAT CITIZENSHIP.  MOREOVER,
SHE HAS FULFILLED THE REQUIREMENT OF SEC. 301(A)(7) FOR PHYSICAL
PRESENCE IN THE UNITED STATES FOR 10 YEARS, MORE THAN FIVE OF WHICH
WERE AFTER SHE ATTAINED THE AGE OF 14 YEARS.  THE MOTHER AND FATHER
WERE MARRIED IN PHILADELPHIA ON THE MOTHER'S 24TH BIRTHDAY, MARCH 14,
1939.  NINE DAYS LATER, ON MARCH 23, THE NEWLYWEDS DEPARTED FOR ITALY. 
THEY HAVE RESIDED THERE EVER SINCE. 

3.  BY ITALIAN LAW THE PLAINTIFF ACQUIRED ITALIAN CITIZNESHIP UPON
HIS BIRTH IN ITALY.  HE RETAINS THAT CITIZENSHIP.  HE ALSO ACQUIRED
UNITED STATES CITIZENSHIP AT HIS BIRTH UNDER REV. STAT. SEC. 1993, AS
AMENDED BY THE ACT OF MAY 24, 1934, SEC. 1, 48 STAT. 797, THEN IN
EFFECT.  /2/  THAT VERSION OF THE STATUTE, AS DOES THE PRESENT ONE,
CONTAINED A RESIDENCE CONDITION APPLICABLE TO A CHILD BORN ABROAD WITH
ONE ALIEN PARENT. 

4.  THE PLAINTIFF RESIDED IN ITALY FROM THE TIME OF HIS BIRTH UNTIL
RECENTLY.  HE CURRENTLY RESIDES IN ENGLAND, WHERE HE HAS EMPLOYMENT AS
AN ELECTRONICS ENGINEER WITH AN ORGANIZATION ENGAGED IN THE NATO
DEFENSE PROGRAM. 

5.  THE PLAINTIFF HAS COME TO THE UNITED STATES FIVE DIFFERENT
TIMES.  HE WAS PHYSICALLY PRESENT HERE DURING THE FOLLOWING PERIODS: 

     APRIL 27 TO JULY 31, 1948 

     JULY 10 TO OCTOBER 5, 1951 

     JUNE TO OCTOBER 1955 

     DECEMBER 18, 1962 TO FEBRUARY 13, 1963 

   MAY 26 TO JUNE 13, 1965.  ON THE FIRST TWO OCCASIONS, WHEN THE
PLAINTIFF WAS A BOY OF EIGHT AND 11, HE ENTERED THE COUNTRY WITH HIS
MOTHER ON HER UNITED STATES PASSPORT.  ON THE NEXT TWO OCCASIONS, WHEN
HE WAS 15 AND JUST UNDER 23, HE ENTERED ON HIS OWN UNITED STATES
PASSPORT AND WAS ADMITTED AS A CITIZEN OF THIS COUNTRY.  HIS PASSPORT
WAS FIRST ISSUED ON JUNE 27, 1952.  HIS LAST APPLICATION APPROVAL, IN
AUGUST 1961, CONTAINS THE NOTATION "WARNED ABT.  301(B)."  THE
PLAINTIFF'S UNITED STATES PASSPORT WAS PERIODICALLY APPROVED TO AND
INCLUDING DECEMBER 22, 1962, HIS 23D BIRTHDAY. 

6.  ON HIS FIFTH VISIT TO THE UNITED STATES, IN 1965, THE PLAINTIFF
ENTERED WITH AN ITALIAN PASSPORT AND AS AN ALIEN VISITOR.  HE HAD JUST
BEEN MARRIED AND HE CAME WITH HIS BIRDE TO VISIT HIS MATERNAL
GRANDPARENTS. 

7.  THE PLAINTIFF WAS WARNED IN WRITING BY UNITED STATES AUTHORITIES
OF THE IMPACT OF SEC. 301(B) WHEN HE WAS IN THIS COUNTRY IN JANUARY
1963 AND AGAIN IN NOVEMBER OF THAT YEAR WHEN HE WAS IN ITALY.  SOMETIME
AFTER FEBRUARY 11, 1964, HE WAS ORALLY ADVISED BY THE AMERICAN EMBASSY
AT ROME THAT HE HAD LOST HIS UNITED STATES CITIZENSHIP PURSUANT TO SEC.
301(B).  IN NOVEMBER 1966 HE WAS SO NOTIFIED IN WRITING BY THE AMERICAN
CONSUL IN ROME WHEN THE PLAINTIFF REQUESTED ANOTHER AMERICAN PASSPORT. 

8.  ON MARCH 28, 1960, PLAINTIFF REGISTERED UNDER THE UNITED STATES
SELECTIVE SERVICE LAWS WITH THE AMERICAN CONSUL IN ROME.  AT THAT TIME
HE ALREADY WAS 20 YEARS OF AGE.  HE TOOK IN ITALY, AND PASSED, A UNITED
STATES ARMY PHYSICAL EXAMINATION.  ON DECEMBER 11, 1963, HE WAS ASKED
TO REPORT FOR INDUCTION IN THE DISTRICT OF COLUMBIA.  THIS INDUCTION,
HOWEVER, WAS THEN DEFERRED BECAUSE OF HIS NATA DEFENSE PROGRAM
EMPLOYMENT.  AT THE TIME OF DEFERMENT HE WAS WARNED OF THE DANGER OF
LOSING HIS UNITED STATES CITIZENSHIP IF HE DID NOT COMPLY WITH THE
RESIDENCE REQUIREMENT.  AFTER FEBRUARY 14, 1964, SELECTIVE SERVICE
ADVISED HIM BY LETTER THAT, DUE TO THE LOSS OF HIS CITIZENSHIP, HE HAD
NO FURTHER OBLIGATION FOR UNITED STATES MILITARY SERVICE. 

PLAINTIFF THUS CONCEDEDLY FAILED TO COMPLY WITH THE CONDITIONS
IMPOSED BY SEC. 301(B) OF THE ACT. 

        II 

THE PLAINTIFF INSTITUTED THE PRESENT ACTION AGAINST THE SECRETARY OF
STATE IN THE SOUTHERN DISTRICT OF NEW YORK.  HE ASKED THAT THE
SECRETARY BE ENJOINED FROM CARRYING OUT AND ENFORCING SEC. 301(B), AND
ALSO REQUESTED A DECLARATORY JUDGMENT THAT SEC. 301(B) IS
UNCONSTITUTIONAL AS VIOLATIVE OF THE FIFTH AMENDMENT'S DUE PROCESS
CLAUSE, THE EIGHTH AMENDMENT'S PUNISHMENT CLAUSE, AND THE NINTH
AMENDMENT, AND THAT HE IS AND ALWAYS HAS BEEN A NATIVE-BORN UNITED
STATES CITIZEN.  BECAUSE, UNDER 28 U.S.C. 1391(E), THE NEW YORK VENUE
WAS IMPROPER, THE CASE WAS TRANSFERRED TO THE DISTRICT OF COLUMBIA.  28
U.S.C. 1406(A). 

A THREE-JUDGE DISTRICT COURT WAS CONVENED.  WITH THE FACTS
STIPULATED, CROSS MOTIONS FOR SUMMARY JUDGMENT WERE FILED.  THE
DISTRICT COURT RULED THAT SEC. 301(B) WAS UNCONSTITUTIONAL, CITING
AFROYIM V. RUSK, 387 U.S. 253 (1967), AND SCHNEIDER V. RUSK, 377 U.S.
163 (1964), AND SUSTAINED THE PLAINTIFF'S SUMMARY JUDGMENT MOTION. 
BELLEI V. RUSK, 296 F.SUPP.  1247 (DC 1969).  THIS COURT NOTED PROBABLE
JURISDICTION, 396 U.S. 811 (1969), AND, AFTER ARGUMENT AT THE 1969
TERM, RESTORED THE CASE TO THE CALENDAR FOR REARGUMENT.  397 U.S. 1060
(1970). 

        III 

THE TWO CASES PRIMARILY RELIED UPON BY THE THREE-JUDGE DISTRICT
COURT ARE, OF COURSE, OF PARTICULAR SIGNIFICANCE HERE. 

SCHNEIDER V. RUSK, 377 U.S. 163 (1964).  MRS. SCHNEIDER, A GERMAN
NATIONAL BY BIRTH, ACQUIRED UNITED STATES CITIZENSHIP DERIVATIVELY
THROUGH HER MOTHER'S NATURALIZATION IN THE UNITED STATES.  SHE CAME TO
THIS COUNTRY AS A SMALL CHILD WITH HER PARENTS AND REMAINED HERE UNTIL
SHE FINISHED COLLEGE.  SHE THEN WENT ABROAD FOR GRADUATE WORK, WAS
ENGAGED TO A GERMAN NATIONAL, MARRIED IN GERMANY, AND STAYED IN
RESIDENCE THERE.  SHE DECLARED THAT SHE HAD NO INTENTION OF RETURNING
TO THE UNITED STATES.  IN 1959, A PASSPORT WAS DENIED BY THE STATE
DEPARTMENT ON THE GROUND THAT SHE HAD LOST HER UNITED STATES
CITIZENSHIP UNDER THE SPECIFIC PROVISIONS OF SEC. 352(A)(1) OF THE
IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. 1484(A)(1), BY CONTINUOUS
RESIDENCE FOR THREE YEARS IN A FOREIGN STATE OF WHICH SHE WAS FORMERLY
A NATIONAL.  THE COURT, BY A FIVE-TO-THREE VOTE, HELD THE STATUTE
VIOLATIVE OF FIFTH AMENDMENT DUE PROCESS BECAUSE THERE WAS NO LIKE
RESTRICTION AGAINST FOREIGN RESIDENCE BY NATIVE-BORN CITIZENS. 

THE DISSENT (MR. JUSTICE CLARK, JOINED BY JUSTICES HARLAND AND
WHITE) BASED ITS POSITION ON WHAT IT REGARDED AS THE LONG ACCEPTANCE OF
EXPATRIATING NATURALIZED CITIZENS WHO VOLUNTARILY RETURN TO RESIDENCE
IN THEIR NATIVE LANDS; POSSIBLE INTERNATIONAL COMPLICATIONS; PAST
DECISIONS APPROVING THE POWER OF CONGRESS TO ENACT STATUTES OF THAT
TYPE; AND THE CONSTITUTION'S DISTINCTIONS BETWEEN NATIVE-BORN AND
NATURALIZED CITIZENS. 

AFROYIM V. RUSK, 387 U.S. 253 (1967).  MR. AFROYIM, A POLISH
NATIONAL BY BIRTH, IMMIGRATED TO THE UNITED STATES AT AGE 19 AND AFTER
14 YEARS HERE ACQUIRED UNITED STATES CITIZENSHIP BY NATURALIZATION. 
TWENTY-FOUR YEARS LATER HE WENT TO ISRAEL AND VOTED IN A POLITICAL
ELECTION THERE.  IN 1960 A PASSPORT WAS DENIED HIM BY THE STATE
DEPARTMENT ON THE GROUND THAT HE HAD LOST HIS UNITED STATES CITIZENSHIP
UNDER THE SPECIFIC PROVISIONS OF SEC. 349(A)(5) OF THE ACT, 8 U.S.C.
1481(A)(5), BY HIS FOREIGN VOTING.  THE COURT, BY A FIVE-TO-FOUR VOTE,
HELD THAT THE FOURTEENTH AMENDMENT'S DEFINITION OF CITIZENSHIP WAS
SIGNIFICANT; THAT CONGRESS HAS NO "GENERAL POWER, EXPRESS OR IMPLIED,
TO TAKE AWAY AN AMERICAN CITIZEN'S CITIZENSHIP WITHOUT HIS ASSENT," 387
U.S.,AT 257; THAT CONGRESS' POWER IS TO PROVIDE A UNIFORM RULE OF
NATURALIZATION AND, WHEN ONCE EXERCISED WITH RESPECT TO THE INDIVIDUAL,
IS EXHAUSTED, CITING MR. CHIEF JUSTICE MARSHALL'S WELL-KNOWN BUT NOT
UNCONTROVERSIAL DICTUM IN OSBORN V. BANK OF THE UNITED STATES, 9
WHEAT.  738, 827 (1824); AND THAT THE "UNDENIABLE PURPOSE" OF THE
FOURTEENTH AMENDMENT WAS TO MAKE THE RECENTLY CONFERRED "CITIZENSHIP OF
NEGROES PERMANENT AND SECURE" AND "TO PUT CITIZENSHIP BEYOND THE POWER
OF ANY GOVERNMENTAL UNIT TO DESTROY," 387 U.S.,AT 263.  PEREZ V.
BROWNELL, 356 U.S. 44 (1958), A FIVE-TO-FOUR HOLDING WITHIN THE DECADE
AND PRECISELY TO THE OPPOSITE EFFECT, WAS OVERRULED. 

THE DISSENT (MR. JUSTICE HARLAN, JOINED BY JUSTICES CLARK, STEWART,
AND WHITE) TOOK ISSUE WITH THE COURT'S CLAIM OF SUPPORT IN THE
LEGISLATIVE HISTORY, WOULD ELUCIDATE THE MARSHALL DICTUM, AND OBSERVED
THAT THE ADOPTION OF THE FOURTEENTH AMENDMENT DID NOT DEPRIVE CONGRESS
OF THE POWER TO EXPATRIATE ON PERMISSIBLE GROUNDS CONSISTENT WITH
"OTHER RELEVANT COMMANDS" OF THE CONSTITUTION.  387 U.S.,AT 292. 

IT IS TO BE OBSERVED THAT BOTH MRS. SCHNEIDER AND MR. AFROYIM HAD
RESIDED IN THIS COUNTRY FOR YEARS.  EACH HAD ACQUIRED UNITED STATES
CITIZENSHIP HERE BY THE NATURALIZATION PROCESS (IN ONE CASE DERIVATIVE
AND IN THE OTHER DIRECT) PRESCRIBED BY THE NATIONAL LEGILSATURE.  EACH,
IN SHORT, WAS COVERED EXPLICITLY BY THE FOURTEENTH AMENDMENT'S VERY
FIRST SENTENCE:  "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."  THIS, OF COURSE,
ACCOUNTS FOR THE COURT'S EMPHASIS IN AFROYIM UPON 'FOURTEENTH AMENDMENT
CITIZENSHIP."  387 U.S.,AT 262. 

        IV 

THE STATUTES CULMINATING IN SEC. 301 MERIT REVIEW: 

1.  THE VERY FIRST CONGRESS, AT ITS SECOND SESSION, PROCEEDED TO
IMPLEMENT ITS POWER, UNDER THE CONSTITUTION'S ART. I, SEC. 8, CL. 4, TO
"ESTABLISH AN UNIFORM RULE OF NATURALIZATION" BY PRODUCING THE ACT OF
MARCH 26, 1790, 1 STAT. 103.  THAT STATUTE, AMONG OTHER THINGS, STATED,
"AND THE CHILDREN OF CITIZENS OF THE UNITED STATES, THAT MAY BE BORN
BEYOND SEA, OR OUT OF THE LIMITS OF THE UNITED STATES, SHALL BE
CONSIDERED AS NATURAL BORN CITIZENS:  PROVIDED, THAT THE RIGHT OF
CITIZENSHIP SHALL NOT DESCEND JTO PERSONS WHOSE FATHERS HAVE NEVER BEEN
RESIDENT IN THE UNITED STATES . . . . " 

2.  A LIKE PROVISION, WITH ONLY MINOR CHANGES IN PHRASING AND WITH
THE SAME EMPHASIS ON PATERNAL RESIDENCE, WAS CONTINUOUSLY IN EFFECT
THROUGH THREE SUCCEEDING NATURALIZATION ACTS.  ACT OF JANUARY 29, 1795,
SEC. 3, 1 STAT. 415; ACT OF APRIL 14, 1802, SEC. 4, 2 STAT. 155; ACT OF
FEBRUARY 10, 1855, C. 71, SEC. 1, 10 STAT. 604.  THE ONLY SIGNIFICANT
DIFFERENCE IS THAT THE 1790, 1795, AND 1802 ACTS READ RETROSPECTIVELY,
WHILE THE 1855 ACT READS PROSPECTIVELY AS WELL.  SEE WEEDIN V. CHIN
BOW, 274 U.S. 657, 664 (1927), AND MONTANA V. KENNEDY, 366 U.S. 308,
311 (1961). 

3.  SECTION 1 OF THE 1855 ACT, WITH CHANGES UNIMPORTANT HERE, WAS
EMBODIED AS SEC. 1993 OF THE REVISED STATUES OF 1874.  /3/ 

4.  THE ACT OF MARCH 2, 1907, SEC. 6, 34 STAT. 1229, PROVIDED THAT
ALL CHILDREN BORN ABROAD WHO WERE CITIZENS UNDER REV. STAT. 1993 AND
WHO CONTINUED TO RESIDE ELSEWHERE, IN ORDER TO RECEIVE GOVERNMENTAL
PROTECTION, WERE TO RECORD AT AGE 18 THEIR INTENTION TO BECOME
RESIDENTS AND REMAIN CITIZENS OF THE UNITED STATES AND WERE TO TAKE THE
OATH OF ALLEGIANCE UPON ATTAINING THEIR MAJORITY.  /4/ 

5.  THE CHANGE IN SEC. 1993 EFFECTED BY THE ACT OF MAY 24, 1934, IS
REFLECTED IN N. 2, SUPRA.  THIS ELIMINATED THE THERETOFORE IMPOSED
RESTRICTION TO THE PATERNAL PARENT AND PROSPECTIVELY GRANTED
CITIZENSHIP, SUBJECT TO A FIVE-YEAR CONTINUOUS RESIDENCE REQUIREMENT
AND AN OATH, TO THE FOREIGN-BORN CHILD OF EITHER A CITIZEN FATHER OR A
CITIZEN MOTHER.  THIS WAS THE FORM OF THE STATUTE AT THE TIME OF
PLAINTIFF'S BIRTH ON DECEMBER 22, 1939. 

6.  THE NATIONALITY ACT OF 1940, SEC. 201, 54 STAT. 1138, CONTAINED
A SIMILAR CONDITION DIRECTED TO A TOTAL OF FIVE YEARS' RESIDENCE IN THE
UNITED STATES BETWEEN THE AGES OF 13 AND 21.  /5/ 

7.  THE IMMIGRATION AND NATIONALITY ACT, BY ITS SEC. 407, 66 STAT.
281, BECAME LAW IN DECEMBER 1952.  ITS SEC. 301(B) CONTAINS A FIVE
YEARS' CONTINUOUS RESIDENCE CONDITION (ALLEVIATED, WITH THE 1957
AMENDMENT, SEE N. 1, BY AN ALLOWANCE FOR ABSENCES LESS THAN 12 MONTHS
IN THE AGGREGATE) DIRECTED TO THE PERIOD BETWEEN 14 AND 28 YEARS OF
AGE.     THE STATUTORY PATTERN, THEREFORE, DEVELOPED AND EXPANDED FROM
(A) ONE, ESTABLISHED IN 1790 AND ENDURING THROUGH THE REVISED STATUTES
AND UNTIL 1934, WHERE CITIZENSHIP WAS SPECIFICALLY DENIED TO THE CHILD
BORN ABROAD OF A FATHER WHO NEVER RESIDED IN THE UNITED STATES; TO (B),
IN 1907, A GOVERNMENTAL PROTECTION CONDITION FOR THE CHILD BORN OF AN
AMERICAN CITIZEN FATHER AND RESIDING ABROAD, DEPENDENT UPON A
DECLARATION OF INTENT AND THE OATH OF ALLEGIANCE AT MAJORITY; TO (C),
IN 1934, A CONDITION, FOR THE CHILD BORN ABROAD OF ONE UNITED STATES
CITIZEN PARENT AND ONE ALIEN PARENT, OF FIVE YEARS' CONTINUOUS
RESIDENCE IN THE UNITED STATES BEFORE AGE 18 AND THE OATH OF ALLEGIANCE
WITHIN SIX MONTHS AFTER MAJORITY; TO (D), IN 1940, A CONDITION, FOR
THAT CHILD, OF FIVE YEARS' RESIDENCE HERE, NOT NECESSARILY CONTINUOUS,
BETWEEN AGES 13 AND 21; TO (3), IN 1952, A CONDITION, FOR THAT CHILD,
OF FIVE YEARS' CONTINUOUS RESIDENCE HERE, WITH ALLOWANCE, BETWEEN AGES
14 AND 28. 

THE APPLICATION OF THESE RESPECTIVE STATUTES TO A PERSON IN
PLAINTIFF BELLEI'S POSITION PRODUCES THE FOLLOWING RESULTS: 

1.  NOT UNTIL 1934 WOULD THAT PERSON HAVE HAD ANY CONCEIVABLE CLAIM
TO UNITED STATES CITIZENSHIP.  FOR MORE THAN A CENTURY AND A HALF NO
STATUTE WAS OF ASSISTANCE.  MATERNAL CITIZENSHIP AFFORDED NO BENEFIT. 
ONE MAY OBSERVE, TOO, THAT IF MR. BELLEI HAD BEEN BORN IN 1933, INSTEAD
OF IN 1939, HE WOULD HAVE NO CLAIM EVEN TODAY.  MONTANA V. KENNEDY,
SUPRA. 

2.  DESPITE THE RECOGNITION OF THE MATERNAL ROOT BY THE 1934
AMENDMENT, IN FEECT AT THE TIME OF PLAINTIFF'S BIRTH, AND DESPITE THE
CONTINUING LIBERALIZATION OF THE SUCCEEDING STATUTES, THE PLAINTIFF
STILL WOULD NOT BE ENTITLED TO FULL CITIZENSHIP BECAUSE, ALTHOUGH HIS
MOTHER MET THE CONDITION FOR HER RESIDENCE IN THE UNITED STATES, THE
PLAINTIFF NEVER DID FULFILL THE RESIDENTIAL CONDITION IMPOSED FOR HIM
BY ANY OF THE STATUTES. 

3.  THIS IS SO EVEN THOUGH THE LIBERALIZING 1940 AND 1952 STATUTES,
ENACTED AFTER THE PLAINTIFF'S BIRTH, WERE APPLICABLE BY THEIR TERMS TO
ONE BORN ABROAD SUBSEQUENT TO MAY 24, 1934, THE DATE OF THE 1934 ACT,
AND WERE AVAILABLE TO THE PLAINTIFF.  SEE NN. 5 AND 1, SUPRA. 

THUS, IN SUMMARY, IT MAY BE SAID FAIRLY THAT, FOR THE MOST PART,
EACH SUCCESSIVE STATUTE, AS APPLIED TO A FOREIGN-BORN CHILD OF ONE
UNITED STATES CITIZEN PARENT, MOVED IN A DIRECTION OF LENIENCY FOR THE
CHILD.  FOR PLAINTIFF BELLEI THE STATUTE CHANGED FROM COMPLETE
DISQUALIFICATION TO CITIZENSHIP UPON A CONDITION SUBSEQUENT, WITH THAT
CONDITION BEING EXPANDED AND MADE LESS ONEROUS, AND, AFTER HIS BIRTH,
WITH THE SUCCEEDING LIBERALIZING PROVISIONS MADE APPLICABLE TO HIM IN
REPLACEMENT OF THE STRICTER STATUTE IN EFFECT WHEN HE WAS BORN.  THE
PLAINTIFF NEVERTHELESS FAILED TO SATISFY ANY FORM OF THE CONDITION. 

        V 

IT IS EVIDENT THAT CONGRESS FELT ITSELF POSSESSED OF THE POWER TO
GRANT CITIZENSHIP TO THE FOREIGN BORN AND AT THE SAME TIME TO IMPOSE
QUALIFICATIONS AND CONDITIONS FOR THAT CITIZENSHIP.  OF COURSE,
CONGRESS OBVIOUSLY FELT THAT WAY, TOO, ABOUT THE TWO EXPATRIATION
PROVISIONS INVALIDATED BY THE DECISIONS IN SCHNEIDER AND AFROYIM. 

WE LOOK AGAIN, THEN, AT THE CONSTITUTION AND FURTHER INDULGE IN
HISTORY'S ASSISTANCE: 

OF INITIAL SIGNIFICANCE, B:CAUSE OF ITS BEING THE FOUNDATION STONE
OF THE COURT'S DECISIONAL STRUCTURE IN AFROYIM, AND, PERHAPS BY A
PROCESS OF AFTER-THE-FACT OSMOSIS, OF THE EARLIER SCHNEIDER AS WELL, IS
THE FOURTEENTH AMENDMENT'S OPENING SENTENCE: 

     "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." 

THE CENTRAL FACT, IN OUR WEIGHING OF THE PLAINTIFF'S CLAIM TO
CONTINUING AND THEREFORE CURRENT UNITED STATES CITIZENSHIP, IS THAT HE
WAS BORN ABROAD.  HE WAS NOT BORN IN THE UNITED STATES.  HE WAS NOT
NATURALIZED IN THE UNITED STATES.  AND HE HAS NOT BEEN SUBJECT TO THE
JURISDICTION OF THE UNITED STATES.  ALL THIS BEING SO, IT SEEMS
INDISPUTABLE THAT THE FIRST SENTENCE OF THE FOURTEENTH AMENDMENT HAS NO
APPLICATION TO PLAINTIFF BELLEI.  HE SIMPLY IS NOT A FOURTEENTH
AMENDMENT-FIRST-SENTENCE CITIZEN.  HIS POSTURE CONTRASTS WITH THAT OF
MR. AFROYIM, WHO WAS NATURALIZED IN THE UNITED STATES, AND WITH THAT OF
MRS. SCHNEIDER, WHOSE CITIZENSHIP WAS DERIVATIVE BY HER PRESENCE HERE
AND BY HER MOTHER'S NATURALIZATION HERE. 

THE PLAINTIFF'S CLAIM THUS MUST CENTER IN THE STATUTORY POWER OF
CONGRESS AND IN THE APPROPRIATE EXERCISE OF THAT POWER WITHIN THE
RESTRICTIONS OF ANY PERTINENT CONSTITUTIONAL PROVISIONS OTHER THAN THE
FOURTEENTH AMENDMENT'S FIRST SENTENCE. 

THE REACH OF CONGRESSIONAL POWER IN THIS AREA IS READILY APPARENT: 

1.  OVER 70 YEARS AGO THE COURT, IN AN OPINION BY MR. JUSTICE GRAY,
REVIEWED AND DISCUSSED EARLY ENGLISH STATUTES RELATING TO RIGHTS OF
INHERITANCE AND OF CITIZENSHIP OF PERSONS BORN ABROAD OF PARENTS WHO
WERE BRITISH SUBJECTS.  UNITED STATES V. WONG KIM ARK, 169 U.S. 649,
668-671 (1898).  THE COURT CONCLUDED THAT "NATURALIZATION BY DESCENT"
WAS NOT A COMMON-LAW CONCEPT BUT WAS DEPENDENT, INSTEAD, UPON STATUTORY
ENACTMENT.  THE STATUTES EXAMINED WERE 25 EDW.  3, STAT. 2 (1350); 29
CAR.  2, C. 6 (1677); 7 ANNE, C. 5, SEC. 3 (1708); 4 GEO. 2, C. 21
(1731); AND 13 GEO. 3, C. 21 (1773).  LATER MR. CHIEF JUSTICE TAFT,
SPEAKING FOR A UNANIMOUS COURT, REFERRED TO THIS "VERY LEARNED AND
USEFUL OPINION OF MR. JUSTICE GRAY" AND OBSERVED "THAT BIRTH WITHIN THE
LIMITS OF THE JURISDICTION OF THE CROWN, AND OF THE UNITED STATES, AS
THE SUCCESSOR OF THE CROWN, FIXED NATIONALITY, AND THAT THERE COULD BE
NO CHANGE IN THIS RULE OF LAW EXCEPT BY STATUTE . . . "  WEEDIN V. CHIN
BOW, 274 U.S.,AT 660.  HE REFERRED TO THE CITED ENGLISH STATUTES AND
STATED, "THESE STATUTES APPLIED TO THE COLONIES BEFORE THE WAR OF
INDEPENDENCE." 

WE THUS HAVE AN ACKNOWLEDGMENT THAT OUR LAW IN THIS AREA FOLLOWS
ENGLISH CONCEPTS WITH AN ACCEPTANCE OF THE JUS SOLI, THAT IS, THAT THE
PLACE OF BIRTH GOVERNS CITIZENSHIP STATUS EXCEPT AS MODIFIED BY
STATUTE. 

2.  THE CONSTITUTION AS ORIGINALLY ADOPTED CONTAINED NO DEFINITION
OF UNITED STATES CITIZENSHIP.  HOWEVER, IT REFERRED TO CITIZENSHIP IN
GENERAL TERMS AND IN VARYING CONTEXTS:  ART. I, SEC. 2, CL. 2,
QUALIFICATIONS FOR MEMBERS OF THE HOUSE; ART. I, SEC. 3, CL. 3,
QUALIFICATIONS FOR SENATORS; ART. II, SEC. 1, CL. 5, ELIGIBILITY FOR
THE OFFICE OF PRESIDENT; ART. III, SEC. 2, CL. 1, CITIZENSHIP AS
AFFECTING JUDICIAL POWER OF THE UNITED STATES.  AND, AS HAS BEEN NOTED,
ART. I, SEC. 8, CL. 4, VESTED CONGRESS WITH THE POWER TO "ESTABLISH AN
UNIFORM RULE OF NATURALIZATION."  THE HISTORICAL REVIEWS IN THE AFROYIM
OPINIONS PROVIDE AN INTIMATION THAT THE CONSTITUTION'S LACK OF
DEFINITIONAL SPECIFICITY MAY WELL HAVE BEEN ATTRIBUTABLE IN PART TO THE
DESIRE TO AVOID ENTANGLEMENT IN THE THEN-EXISTING CONTROVERSY BETWEEN
CONCEPTS OF STATE AND NATIONAL CITIZENSHIP AND WITH THE DIFFICULT
QUESTION OF THE STATUS OF NEGRO SLAVES. 

IN ANY EVENT, ALTHOUGH ONE MIGHT HAVE EXPECTED A DEFINITION OF
CITIZENSHIP IN CONSTITUTIONAL TERMS, NONE WAS EMBRACED IN THE ORIGINAL
DOCUMENT OR, INDEED, IN ANY OF THE AMENDMENTS ADOPTED PRIOR TO THE WAR
BETWEEN THE STATES. 

3.  APART FROM THE PASSING REFERENCE TO THE "NATURAL BORN CITIZEN"
IN THE CONSTITUTION'S ART. II, SEC. 1, CL. 5, WE HAVE, IN THE CIVIL
RIGHTS ACT OF APRIL 9, 1866, 14 STAT. 27, THE FIRST STATUTORY
RECOGNITION AND CONCOMITANT FORMAL DEFINTION OF THE CITIZENSHIP STATUS
OF THE NATIVE BORN:  "(ALL PERSONS BORN IN THE UNITED STATES AND NOT
SUBJECT TO ANY FOREIGN POWER, EXCLUDING INDIANS NOT TAXED, ARE HEREBY
DECLARED TO BE CITIZENS OF THE UNITED STATES . . . . "  THIS, OF
COURSE, FOUND IMMEDIATE EXPRESSION IN THE FOURTEENTH AMENDMENT, ADOPTED
IN 1868, WITH EXPANSION TO "(ALL PERSONS BORN OR NATURALIZED IN THE
UNITED STATES . . . . "  AS HAS BEEN NOTED ABOVE, THE AMENDMENT'S
"UNDENIABLE P,RPOSE" WAS "TO MAKE CITIZENSHIP OF NEGROES PERMANENT AND
SECURE" AND NOT SUBJECT TO CHANGE BY MERE STATUTE.  AFROYIM V. RUSK,
387 U.S.,AT 263.  SEE H. FLACK, ADOPTION OF THE FOURTEENTH AMENDMENT 88
94 (1908). 

MR. JUSTICE GRAY HAS OBSERVED THAT THE FIRST SENTENCE OF THE
FOURTEENTH AMENDMENT WAS "DECLARATORY OF EXISTING RIGHTS, AND
AFFIRMATIVE OF EXISTING LAW," SO FAR AS THE QUALIFICATIONS OF BEING
BORN IN THE UNITED STATES, BEING NATURALIZED IN THE UNITED STATES, AND
BEING SUBJECT TO ITS JURISDICTION ARE CONCERNED.  UNITED STATES V. WONG
KIM ARK, 169 U.S.,AT 688.  THEN FOLLOWS A MOST SIGNIFICANT SENTENCE: 

"BUT IT (THE FIRST SENTENCE OF THE FOURTEENTH AMENDMENT) HAS NOT
TOUCHED THE ACQUISITION OF CITIZENSHIP BY BEING BORN ABROAD OF AMERICAN
PARENTS; AND HAS LEFT THAT SUBJECT TO BE REGULATED, AS IT HAD ALWAYS
BEEN, BY CONGRESS, IN THE EXERCISE OF THE POWER CONFERRED BY THE
CONSTITUTION TO ESTABLISH AN UNIFORM RULE OF NATURALIZATION." 

THUS, AT LONG LAST, THERE EMERGED AN EXPRESS CONSTITUTIONAL
DEFINITION OF CITIZENSHIP.  BUT IT WAS ONE RESTRICTED TO THE
COMBINATION OF THREE FACTORS, EACH AND ALL SIGNIFICANT:  BIRTH IN THE
UNITED STATES, NATURALIZATION IN THE UNITED STATES, AND SUBJECTION TO
THE JURISDICTION OF THE UNITED STATES.  THE DEFINITION OBVIOUSLY DID
NOT APPLY TO ANY ACQUISITION OF CITIZENSHIP BY BEING BORN ABROAD OF AN
AMERICAN PARENT.  THAT TYPE, AND ANY OTHER NOTE COVERED BY THE
FOURTEENTH AMENDMENT, WAS NECESSARILY LEFT TO PROPER CONGRESSIONAL
ACTION. 

4.  THE COURT HAS RECOGNIZED THE EXISTENCE OF THIS POWER.  IT HAS
OBSERVED, "NO ALIEN HAS THE SLIGHTEST RIGHT TO NATURALIZATION UNLESS AL
STATUTORY REQUIREMENTS ARE COMPLIED WITH . . . . "  UNITED STATES V.
GINSBERG, 243 U.S. 472, 475 (1917).  SEE UNITED STATES V. NESS, 245
U.S. 319 (1917); MANEY V. UNITED STATES, 278 U.S. 17 (1928).  AND THE
COURT HAS SPECIFICALLY RECOGNIZED THE POWER OF CONGRESS NOT TO GRANT A
UNITED STATES CITIZEN THE RIGHT TO TRANSMIT CITIZENSHIP BY DESCENT.  AS
HEREINABOVE NOTED, PERSONS BORN ABROAD, EVEN OF UNITED STATES CITIZEN
FATHERS WHO, HOWEVER, ACQUIRED AMERICAN CITIZENSHIP AFTER THE EFFECTIVE
DATE OF THE 1802 ACT, WERE ALIENS.  CONGRESS RESPONDED TO THAT
SITUATION ONLY BY ENACTING THE 1855 STATUTE.  MONTANA V. KENNEDY, 355
U.S.,AT 311.  BUT MORE THAN 50 YEARS HAD EXPIRED DURING WHICH, BECAUSE
OF THE WITHHOLDING OF THAT BENEFIT BY CONGRESS, CITIZENSHIP BY SUCH
DESCENT WAS NOT BESTOWED.  UNITED STATES V. WONG KIM ARK, 169 U.S.,AT
673-674.  THEN, TOO, THE COURT HAS RECOGNIZED THAT UNTIL THE 1934 ACT
THE TRANSMISSION OF CITIZENSHIP TO ONE BORN ABROAD WAS RESTRICTED TO
THE CHILD OF A QUALIF[ING AMERICAN FATHER, AND WITHHELD COMPLETELY FROM
THE CHILD OF A UNITED STATES CITIZEN MOTHER AND AN ALIEN FATHER. 
MONTANA V. KENNEDY, SUPRA. 

FURTHER, IT IS CONCEDED HERE BOTH THAT CONGRESS MAY WITHHOLD
CITIZENSHIP FROM PERSONS LIKE PLAINTIFF BELLEI /6/  AND MAY PRESCRIBE A
PERIOD OF RESIDENCE IN THE UNITED STATES AS A CONDITION PRECEDENT
WITHOUT CONSTITUTIONAL QUESTION.  /7/ 

THUS WE HAVE THE PRESENCE OF CONGRESSIONAL POWER IN THIS AREA, ITS
EXERCISE, AND THE COURT'S SPECIFIC RECOGNITION OF THAT POWER AND OF ITS
HAVING BEEN PROPERLY WITHHELD OR PROPERLY USED IN PARTICULAR
SITUATIONS. 

        VI 

THIS TAKES US, THEN, TO THE ISSUE OF THE CONSTITUTIONALITY OF THE
EXERCISE OF THAT CONGRESSIONAL POWER WHEN IT IS USED TO IMPOSE THE
CONDITION SUBSEQUENT THAT CONFRONTED PLAINTIFF BELLEI.  WE CONCLUDE
THAT ITS IMPOSITION IS NOT UNREASONABLE, ARBITRARY, OR UNLAWFUL, AND
THAT IT WITHSTANDS THE PRESENT CONSTITUTIONAL CHALLENGE. 

1.  THE CONGRESS HAS AN APPROPRIATE CONCERN WITH PROBLEMS ATTENDANT
ON DUAL NATIONALITY.  SAVORGNAN V. UNITED STATES, 338 U.S. 491, 500
(1950); N. BAR-YAACOV, DUAL NATIONALITY XI AND 4 (1961).  THESE
PROBLEMS ARE PARTICULARLY ACUTE WHEN IT IS THE FATHER WHO IS THE
CHILD'S ALIEN PARENT AND THE FATHER CHOOSES TO HAVE HIS FAMILY RESIDE
IN THE COUNTRY OF HIS OWN NATIONALITY.  THE CHILD IS REARED, AT BEST,
IN AN ATMOSPHERE OF DIVIDED LOYALTY.  WE CANNOT SAY THAT A CONCERN THAT
THE CHILD'S OWN PRIMARY ALLEGIANCE IS TO THE COUNTRY OF HIS BIRTH AND
OF HIS FATHER'S ALLEGIANCE IS EITHER MISPLACED OR ARBITRARY. 

THE DUALITY ALSO CREATES PROBLEMS FOR THE GOVERNMENTS INVOLVED.  MR.
JUSTICE BRENNAN RECOGNIZED THIS WHEN, CONCURRING IN KENNEDY V. MENDOZA
MARTINEZ, 372 U.S. 144, 187 (1963), A CASE CONCERNING NATIVE-BORN
CITIZENS, HE OBSERVED:  "WE HAVE RECOGNIZED THE ENTANGLEMENTS WHICH MAY
STEM FROM DUAL ALLEGIANCE . . . . "  IN A FAMOUS CASE MR. JUSTICE
DOUGLAS WROTE OF THE PROBLEM OF DUAL CITIZENSHIP.  KAWAKITA V. UNITED
STATES, 343 U.S. 717, 723-736 (1952).  HE NOTED THAT "(ONE WHO HAS A
DUAL NATIONALITY WILL BE SUBJECT TO CLAIMS FROM BOTH NATIONS, CLAIMS
WHICH AT TIMES MAY BE COMPETING OR CONFLICTING," ID., AT 733; THAT ONE
WITH DUAL NATIONALITY CANNOT TURN THAT STATUS "INTO A FAIR-WEATHER
CITIZENSHIP," ID., AT 736; AND THAT "(CIRCUMSTANCES MAY COMPEL ONE WHO
HAS A DUAL NATIONALITY TO DO ACTS WHICH OTHERWISE WOULD NOT BE
COMPATIBLE WITH THE OBLIGATIONS OF AMERICAN CITIZENSHIP," IBID.  THE
DISTRICT COURT IN THIS VERY CASE CONCEDED: 

"IT IS A LEGITIMATE CONCERN OF CONGRESS THAT THOSE WHO BEAR AMERICAN
CITIZENSHIP AND RECEIVE ITS BENEFITS HAVE SOME NEXUS TO THE UNITED
STATES."  296 F.SUPP.,AT 1252. 

2.  THERE ARE AT LEAST INTIMATIONS IN THE DECIDED CASES THAT A DUAL
NATIONAL CONSTITUTIONALLY MAY BE REQUIRED TO MAKE AN ELECTION.  IN
PERKINS V. ELG, 307 U.S. 325, 329 (1939), THE COURT OBSERVED THAT A
NATIVE-BORN CITIZEN WHO HAD ACQUIRED DUAL NATIONALITY DURING MINORITY
THROUGH HIS PARENTS' FOREIGN NATURALIZATION ABROAD DID NOT LOSE HIS
UNITED STATES CITIZENSHIP "PROVIDED THAT ON ATTAINING MAJORITY HE
ELECTS TO RETAIN THAT CITIZENSHIP AND TO RETURN TO THE UNITED STATES TO
ASSUME ITS DUTIES."  IN KAWAKITA V. UNITED STATES, 343 U.S.,AT 734, THE
COURT NOTED THAT A DUAL NATIONAL "UNDER CERTAIN CIRCUMSTANCES" CAN BE
DEPRIVED OF HIS AMERICAN CITIZENSHIP THROUGH AN ACT OF CONGRESS.  IN
MANDOLI V. ACHESON, 344 U.S. 133, 138 (1952), THE COURT TOOK PAINS TO
OBSERVE THAT THERE WAS NO STATUTE IN EXISTENCE IMPOSING AN ELECTION
UPON THAT DUAL NATIONALITY LITIGANT.     THESE CASES DO NOT FLATLY SAY
THAT A DUTY TO ELECT MAY BE CONSTITUTIONALLY IMPOSED.  THEY SURELY
INDICATE, HOWEVER, THAT THIS IS POSSIBLE, AND IN MANDOLI THE HOLDING
WAS BASED ON THE VERY ABSENCE OF A STATUTE AND NO ON ANY THEORY OF
UNCONSTITUTIONALITY.  AND ALL THREE OF THESE CASES CONCERNED PERSONS
WHO WERE BORN HERE, THAT IS, PERSONS WHO POSSESSED FOURTEENTH AMENDMENT
CITIZENSHIP; THEY DTD NOT CONCERN A PERSON, SUCH AS PLAINTIFF BELLEI,
WHOSE CLAIM TO CITIZENSHIP IS WHOLLY, AND ONLY, STATUTORY. 

3.  THE STATUTORY DEVELOPMENT OUTLINED IN PART IV ABOVE, BY ITSELF
AND WITHOUT REFERENCE TO THE UNDERLYING LEGISLATIVE HISTORY, COMMITTEE
REPORTS, AND OTHER STUDIES, REVEALS A CAREFUL CONSIDERATION BY THE
CONGRESS OF THE PROBLEMS ATTENDANT UPON DUAL NATIONALITY OF A PERSON
BORN ABROAD.  THIS WAS PURPOSEFUL AND NOT ACCIDENTAL.  IT WAS
LEGISLATION STRUCTURED WITH CARE AND IN THE LIGHT OF THEN APPARENT
PROBLEMS. 

4.  THE SOLUTION TO THE DUAL NATIONALITY DILEMMA PROVIDED BY THE
CONGRESS BY WAY OF REQUIRED RESIDENCE SURELY IS NOT UNREASONABLE.  IT
MAY NOT BE THE BEST THAT COULD BE DEVISED, BUT HERE, TOO, WE CANNOT SAY
THAT IT IS IRRATIONAL OR ARBITRARY OR UNFAIR.  CONGRESS FIRST HAS
IMPOSED A CONDITION PRECEDENT IN THAT THE CITIZEN PARENT MUST HAVE BEEN
IN THE UNITED STATES OR ITS POSSESSIONS NOT LESS THAN 10 YEARS, AT
LEAST FIVE OF WHICH ARE AFTER ATTAINING AGE 14.  IT THEN HAS IMPOSED,
AS TO THE FOREIGN-BORN CHILD HIMSELF, THE CONDITION SUBSEQUENT AS TO
RESIDENCE HERE.  THE COURT ALREADY HAD EMPHASIZED THE IMPORTANCE OF
RESIDENCE IN THIS COUNTRY AS THE TALISMAN OF DEDICATED ATTACHMENT,
WEEDIN V. CHIN BOW, 274 U.S.,AT 666-667, AND SAID: 

"IT IS NOT TOO MUCH TO SAY, THEREFORE, THAT CONGRESS AT THAT TIME
(WHEN REV. STAT. SEC. 1993 WAS UNDER CONSIDERATION) ATTACHED MORE
IMPORTANCE TO ACTUAL RESIDENCE IN THE UNITED STATES AS INDICATING A
BASIS RESIDENCE IN THE UNITED STATES AS INDICATING A BASIS FOR
CITIZENSHIP THAN IT DID TO DESCENT FROM THOSE WHO HAD BEEN BORN
CITIZENS OF THE COLONIES OR OF THE STATES BEFORE THE CONSTITUTION.  AS
SAID BY MR. FISH, WHEN SECRETARY OF STATE, TO MINISTER WASHBURN, JUNE
28, 1873, IN SPEAKING OF THIS VERY PROVISO, 'THE HERITABLE BLOOD OF
CITIZENSHIP WAS THUS ASSOCIATED UNMISTAKEABLY WITH RESIDENCE WITHIN THE
COUNTRY WHICH WAS THUS RECOGNIZED AS ESSENTIAL TO FULL CITIZENSHIP.' 
FOREIGN RELATIONS OF THE UNITED STATES, T. 1, 1873, P. 259."  274
U.S.,AT 665-666. 

THE SAME POLICY IS REFLECTED IN THE REQUIRED PERIOD OF RESIDENCE
HERE FOR ALIENS SEEKING NATURALIZATION.  8 U.S.C. 1427(A). 

5.  WE FEEL THAT IT DOES NOT MAKE GOOD CONSTITUTIONAL SENSE, OR
COMPORT WITH LOGIC, TO SAY, ON THE ONE HAND, THAT CONGRESS MAY IMPOSE A
CONDITION PRECEDENT, WITH NO CONSTITUTIONAL COMPLICATION, AND YET BE
POWERLESS TO IMPOSE PRECISELY THE SAME CONDITION SUBSEQUENT.  ANY SUCH
DISTINCTION, OF COURSE, MUST REST, IF IT HAS ANY BASIS AT ALL, ON THE
ASSERTED "PREMISE THAT THE RIGHTS OF CITIZENSHIP OF THE NATIVE BORN AND
OF THE NATURALIZED PERSON ARE OF THE SAME DIGNITY AND ARE COEXTENSIVE,"
SCHNEIDER V. RUSK, 377 U.S.,AT 165, AND ON THE ANNOUNCEMENT THAT
CONGRESS HAS NO "POWER, EXPRESS OR IMPLIED, TO TAKE AWAY AN AMERICAN
CITIZEN'S CITIZENSHIP WITHOUT H;S ASSENT," AFROYIN V. RUSK, 387 U.S.,AT
257.  BUT, AS POINTED OUT ABOVE, THESE WERE UTTERANCES BOTTOMED UPON
FOURTEENTH AMENDMENT CITIZENSHIP AND THAT AMENDMENT'S DIRECT REFERENCE
TO "PERSONS BORN OR NATURALIZED IN THE UNITED STATES."  WE DO NOT
ACCEPT THE NOTION THAT THOSE UTTERANCES ARE NOW TO BE JUDICIALLY
EXTENDED TO CITIZENSHIP NOT BASED UPON THE FOURTEENTH AMENDMENT AND TO
MAKE CITIZENSHIP AN ABSOLUTE.  THAT IT IS NOT AN ABSOLUTE IS
DEMONSTRATED BY THE FACT THAT EVEN FOURTEENTH AMENDMENT CITIZENSHIP BY
NATURALIZATION, WHEN UNLAWFULLY PROCURED, MAY BE SET ASIDE.  AFROYIM V.
RUSK, 387 U.S..AT 267 N. 23. 

6.  A CONTRARY HOLDING WOULD CONVERT WHAT IS CONGRESSIONAL GENEROSITY
INTO SOMETHING UNANTICIPATED AND OBVIOUSLY UNDESIRED BY THE CONGRESS. 
OUR NATIONAL LEGISLATURE INDULGED THE FOREIGN-BORN CHILD WITH
PRESUMPTIVE CITIZENSHIP, SUBJECT TO SUBSEQUENT SATISFACTION OF A
REASONABLE RESIDENCE REQUIREMENT, RATHER THAN TO DENY HIM CITIZENSHIP
OUTRIGHT, AS CONCEDEDLY IT HAD THE POWER TO DO, AND RELEGATE THE CHILD,
IF HE DESIRED AMERICAN CITIZENSHIP, TO THE MORE ARDUOUS REQUIREMENTS OF
THE USUAL NATURALIZATION PROCESS.  THE PLAINTIFF HERE WOULD FORCE THE
CONGRESS TO CHOOSE BETWEEN UNCONDITIONAL CONFERMENT OF UNITED STATES
CITIZENSHIP AT BIRTH AND DEFERMENT OF CITIZENSHIP UNTIL A CONDITION
PRECEDENT IS FULFILLED.  WE ARE NOT CONVINCED THAT THE CONSTITUTION
REQUIRES SO RIGID A CHOICE.  IF IT DOES, THE CONGRESSIONAL RESPONSE
SEEMS OBVIOUS. 

7.  NEITHER ARE WE PERSUADED THAT A CONDITION SUBSEQUENT IN THIS
AREA IMPRESSES ONE WITH "SECOND-CLASS CITIZENSHIP."  THAT CLICHE IS TOO
HANDY AND TOO EASY, AND, LIKE MOST CLICHES, CAN BE MISLEADING.  THAT
THE CONDITION SUBSEQUENT MAY BE BENEFICIAL IS APPARENT IN THE LIGHT OF
THE CONCEDED FACT THAT CITIZENSHIP TO THIS PLAINTIFF WAS FULLY
DENIABLE.  THE PROPER EMPHASIS IS ON WHAT THE STATUTE PERMITS HIM TO
GAIN FROM THE POSSIBLE STARTING POINT OF NONCITIZENSHIP, NOT ON WHAT HE
CLAIMS TO LOSE FROM THE POSSIBLE STARTING POINT OF FULL CITIZENSHIP TO
WHICH HE HAS NO CONSTITUTIONAL RIGHT IN THE FIRST PLACE.  HIS
CITIZENSHIP, WHILE IT LASTS, ALTHOUGH CONDITIONAL, IS NOT "SECOND
CLASS." 

8.  THE PLAINTIFF IS NOT STATELESS.  HIS ITALIAN CITIZENSHIP
REMAINS.  HE HAS LIVED PRACTICALLY ALL HIS LIFE IN ITALY.  HE HAS NEVER
LIVED IN THIS COUNTRY; ALTHOUGH HE HAS VISITED HERE FIVE TIMES, THE
STIPULATED FACTS CONTAIN NO INDICATION THAT HE EVER WILL LIVE HERE.  HE
ASSERTS NO CLAIM OF IGNORANCE OR OF MISTAKE OR EVEN OF HARDSHIP.  HE
WAS WARNED SEVERAL TIMES OF THE PROVISION OF THE STATUTE AND OF HIS
NEED TO TAKE UP RESIDENCE IN THE UNITED STATES PRIOR TO HIS 23D
BIRTHDAY. 

WE HOLD THAT SEC. 301(B) HAS NO CONSTITUTIONAL INFIRMITY IN ITS
APPLICATION TO PLAINTIFF BELLEI.  THE JUDGMENT OF THE DISTRICT COURT IS
REVERSED. 

/1/  "SEC.  301.  (A) THE FOLLOWING SHALL BE NATIONALS AND CITIZENS
OF THE UNITED STATES AT BIRTH:

"(1) A PERSON BORN IN THE UNITED STATES, AND SUBJECT TO THE
JURISDICTION THEREOF;

        .          .     .          . 

"(7) A PERSON BORN OUTSIDE THE GEOGRAPHICAL LIMITS OF THE UNITED
STATES AND ITS OUTLYING POSSESSIONS OF PARENTS ONE OF WHOM IS AN ALIEN,
AND THE OTHER A CITIZEN OF THE UNITED STATES WHO, PRIOR TO THE BIRTH OF
SUCH PERSON, WAS PHYSICALLY PRESENT IN THE UNITED STATES OR ITS
OUTLYING POSSESSIONS FOR A PERIOD OR PERIODS TOTALING NOT LESS THAN TEN
YEARS, AT LEAST FIVE OF WHICH WERE AFTER ATTAINING THE AGE OF FOURTEEN
YEARS:  PROVIDED . . . 

"(B) ANY PERSON WHO IS A NATIONAL AND CITIZEN OF THE UNITED STATES
AT BIRTH UNDER PARAGRAPH (7) OF SUBSECTION (A), SHALL LOSE HIS
NATIONALITY AND CITIZENSHIP UNLESS HE SHALL COME TO THE UNITED STATES
PRIOR TO ATTAINING THE AGE OF TWENTY-THREE YEARS AND SHALL IMMEDIATELY
FOLLOWING ANY SUCH COMING BE CONTINUOUSLY PHYSICALLY PRESENT IN THE
UNITED STATES) FOR AT LEAST FIVE YEARS:  PROVIDED, THAT SUCH PHYSICAL
PRESENCE FOLLOWS THE ATTAINMENT OF THE AGE OF FOURTEEN YEARS AND
PRECEDES THE AGE OF TWENTY-EIGHT YEARS. 

"(C) SUBSECTION (B) SHALL APPLY TO A PERSON BORN ABROAD SUBSEQUENT
TO MAY 24, 1934 . . . . " 

80 STAT. 1322, BY WAY OF ADDITIONS TO THE PROVISO, OMITTED ABOVE; THESE
HAVE NO RELEVANCY HERE.  PUB. L. 85-316, SEC. 16, 71 STAT. 644, 8
U.S.C. 1401B, ENACTED IN SEPTEMBER 1957, PROVIDES THAT ABSENCES OF LESS
THAN 12 MONTHS IN THE AGGREGATE "SHALL NOT BE CONSIDERED TO BREAK THE
CONTINUITY OF (THE) PHYSICAL PRESENCE" REQUIRED BY SEC. 301(B). 

/2/  "ANY CHILD HEREAFTER BORN OUT OF THE LIMITS AND JURISDICTION OF
THE UNITED STATES, WHOSE FATHER OR MOTHER OR BOTH AT THE TIME OF THE
BIRTH OF SUCH CHILD IS A CITIZEN OF THE UNITED STATES, IS DECLARED TO
BE A CITIZEN OF THE UNITED STATES; BUT THE RIGHTS OF CITIZENSHIP SHALL
NOT DESCEND TO ANY SUCH CHILD UNLESS THE CITIZEN FATHER OR CITIZEN
MOTHER, AS THE CASE MAY BE, HAS RESIDED IN THE UNITED STATES PREVIOUS
TO THE BIRTH OF SUCH CHILD.  IN CASES WHERE ONE OF THE PARENTS IS AN
ALIEN, THE RIGHT OF CITIZENSHIP SHALL NOT DESCEND UNLESS THE CHILD
COMES TO THE UNITED STATES AND RESIDES THEREIN FOR AT LEAST FIVE YEARS
CONTINUOUSLY IMMEDIATELY PREVIOUS TO HIS EIGHTEENTH BIRTHDAY, AND
UNLESS, WITHINSIX MONTHS AFTER THE CHILD'S TWENTY-FIRST BIRTHDAY, HE OR
SHE SHALL TAKE AN OATH OF ALLEGIANCE TO THE UNITED STATES OF AMERICA AS
PRESCRIBED BY THE BUREAU OF NATURALIZATION." 

/3/  "ALL CHILDREN HERETOFORE BORN OR HEREAFTER BORN OUT OF THE
LIMITS AND JURISDICTION OF THE UNITED STATES, WHOSE FATHERS WERE OR MAY
BE AT THE TIME OF THEIR BIRTH CITIZENS THEREOF, ARE DECLARED TO BE
CITIZENS OF THE UNITED STATES; BUT THE RIGHTS OF CITIZENSHIP SHALL NOT
DESCEND TO CHILDREN WHOSE FATHERS NEVER RESIDED IN THE UNITED STATES." 

/4/  "THAT ALL CHILDREN BORN OUTSIDE THE LIMITS OF THE UNITED STATES
WHO ARE CITIZENS THEREOF IN ACCORDANCE WITH THE PROVISIONS OF SECTION
NINETEEN HUNDRED AND NINETH-THREE OF THE REVISED STATUTES OF THE UNITED
STATES AND WHO CONTINUE TO RESIDE OUTSIDE THE UNITED STATES SHALL, IN
ORDER TO RECEIVE THE PROTECTION OF THIS GOVERNMENT, BE REQUIRED UPON
REACHING THE AGE OF EIGHTEEN YEARS TO RECORD AT AN AMERICAN CONSULATE
THEIR INTENTION TO BECOME RESIDENTS AND REMAIN CITIZENS OF THE UNITED
STATES AND SHALL BE FURTHER REQUIRED TO TAKE THE OATH OF ALLEGIANCE TO
THE UNITED STATES UPON ATTAINING THEIR MAJORITY." 

/5/  SEC.  201.  THE FOLLOWING SHALL BE NATIONALS AND CITIZENS OF
THE UNITED STATES AT BIRTH:

        .  .          .          . 

"(G) A PERSON BORN OUTSIDE THE UNITED STATES AND ITS OUTLYING
POSSESSIONS OF PARENTS ONE OF WHOM IS A CITIZEN OF THE UNITED STATES
WHO, PRIOR TO THE BIRTH OF SUCH PERSON, HAS HAD TEN YEARS' RESIDENCE IN
THE UNITED STATES OR ONE OF ITS OUTLYING POSSESSIONS, AT LEAST FIVE OF
WHICH WERE AFTER ATTAINING THE AGE OF SIXTEEN YEARS, THE OTHER BEING AN
ALINE:  PROVIDED, THAT IN ORDER TO RETAIN SUCH CITIZENSHIP, THE CHILD
MUST RESIDE IN THE UNITED STATES OR ITS OUTLYING POSSESSIONS FOR A
PERIOD OR PERIODS TOTALING FIVE YEARS BETWEEN THE AGES OF THIRTEEN AND
TWENTY-ONE YEARS:  PROVIDED FURTHER, THAT, IF THE CHILD HAS NOT TAKEN
UP A RESIDENCE IN THE UNITED STATES OR ITS OUTLYING POSSESSIONS BY THE
TIME HE REACHES THE AGE OF SIXTEEN YEARS, OR IF HE RESIDES ABROAD FOR
SUCH A TIME THAT IT BECOMES IMPOSSIBLE FOR HIM TO COMPLETE THE FIVE
YEARS" RESIDENCE IN THE UNITED STATES OR ITS OUTLYING POSSESSIONS
BEFORE REACHING THE AGE OF TWENTY-ONE YEARS, HIS AMERICAN CITIZENSHIP
SHALL THEREUPON CEASE. 

        .          .          .          . 

"(H) THE FOREGOING PROVISIONS OF SUBSECTION (G) CONCERNING RETENTION
OF CITIZENSHIP SHALL APPLY TO A CHILD BORN ABROAD SUBSEQUENT TO MAY 24,
1934." 

/6/  AT ORAL ARGUMENT PLAINTIFF'S COUNSEL CONCEDED THAT "CONGRESS
NEED NOT VEST A PERSON IN HIS POSITION WITH CITIZENSHIP IF IT CHOOSES
NOT TO DO SO."  TR. OF ORAL REARG.  27.  COUNSEL FOR THE AMICI
SYMPATHETIC WITH THE PLAINTIFF'S CAUSE MADE A LIKE CONCESSION.  ID., AT
36. 

/7/  ID., AT 26. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

LESS THAN FOUR YEARS AGO THIS COURT HELD THAT 

"THE FOURTEENTH AMENDMENT WAS DESIGNED TO, AND DOES, PROTECT EVERY
CITIZEN OF THIS NATION AGAINST A CONGRESSIONAL FORCIBLE DESTRUCTION OF
HIS CITIZENSHIP, WHATEVER HIS CREED, COLOR, OR RACE.  OUR HOLDING DOES
NOT MORE THAN TO GIVE TO THIS CITIZEN THAT WHICH IS HIS OWN, A
CONSTITUTIONAL RIGHT TO REMAIN A CITIZEN IN A FREE COUNTRY UNLESS HE
VOLUNTARILY RELINQUISHES THAT CITIZENSHIP."  AFROYIM V. RUSK, 387 U.S.
253, 268 (1967). 

THE HOLDING WAS CLEAR.  CONGRESS COULD NOT, UNTIL TODAY,
CONSISTENTLY WITH THE FOURTEENTH AMENDMENT ENACT A LAW STRIPPING AN
AMERICAN OF HIS CITIZENSHIP WHICH HE HAS NEVER VOLUNTARILY RENOUNCED OR
GIVE UP.  NOW THIS COURT, BY A VOTE OF FIVE TO FOUR THROUGH A SIMPLE
CHANGE IN ITS COMPOSITION, ORVERRULES THAT DECISION. 

THE COURT TODAY HOLDS THAT CONGRESS CAN INDEED ROB A CITIZEN OF HIS
CITIZENSHIP JUST SO LONG AS FIVE MEMBERS OF THIS COURT CAN SATISFY
THEMSELVES THAT THE CONGRESSIONAL ACTION WAS NOT "UNREASONABLE,
ARBITRARY," ANTE, AT 831; "MISPLACED OR ARBITRARY," ANTE, AT 832; OR
"IRRATIONAL OR ARBITRARY OR UNFAIR," ANTE, AT 833.  MY FIRST COMMENT IS
THAT NOT ONE OF THESE "TESTS" APPEARS IN THE CONSTITUTION.  MOREOVER,
IT SEEMS A LITTLE STRANGE TO FIND SUCH "TESTS" AS THESE ANNOUNCED IN AN
OPINION WHICH CONDEMNS THE EARLIER DECISIONS IT OVERRULES FOR THEIR
RESORT TO CLICHES, WHICH IT DESCRIBES AS "TOO HANDY AND TOO EASY, AND,
LIKE MOST CLICHES, CAN BE MISLEADING."  ANTE, AT 835.  THAT DESCRIPTION
PRECISELY FITS THOSE WORDS AND CLAUSES WHICH THE MAJORITY USES, BUT
WHICH THE CONSTITUTION DOES NOT. 

THE CONSTITUTION, WRITTEN FOR THE AGES, CANNOT RISE AND FALL WITH
THIS COURT'S PASSING NOTIONS OF WHAT IS "FAIR," OR "REASONABLE," OR
"ARBITRARY."  THE FOURTEENTH AMENDMENT COMMANDS: 

     "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 WHREIN THEY RESIDE." 

SPEAKING OF THIS VERY LANGUAGE, THE COURT HELD IN AFROYIM THAT NO
AMERICAN CAN BE DEPRIVED OF HIS CITIZENSHIP WITHOUT HIS ASSENT.  TODAY,
THE COURT OVERRULES THAT HOLDING.  THIS PRECIOUS FOURTEENTH AMENDMENT
AMERICAN CITIZENSHIP SHOULD NOT BE BLOWN AROUND BY EVERY PASSING
POLITICAL WIND THAT CHANGES THE COMPOSITION OF THIS COURT.  I DISSENT. 
BELLEI BECAME AN AMERICAN CITIZEN UNDER THE TERMS OF SEC. 1993 OF
THE REVISED STATUTES, AS AMENDED, /1/  AND HE HAS NEITHER RENOUNCED HIS
AMERICAN CITIZENSHIP NOR VOLUNTARILY ASSENTED TO ANY GOVERNMENTAL ACT
TERMINATING IT.  HE HAS NEVER GIVEN ANY INDICATION OF WANTING TO
EXPATRIATE HIMSELF BUT, RATHER, HAS CONSISTENTLY MAINTAINED THAT HE
WANTS TO KEEP HIS AMERICAN CITIZENSHIP.  IN MY VIEW, THE DECISION IN
AFROYIM, THEREFORE, REQUIRES THE COURT TO HOLD HERE THAT BELLEI HAS
BEEN UNCONSTITUTIONALLY DEPRIVED BY SEC. 301(B) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952 /2/  OF HIS RIGHT TO BE AN AMERICAN CITIZEN. 
SINCE SEC. 301(B) DOES NOT TAKE INTO ACCOUNT IN ANY WAY WHETHER THE
CITIZEN INTENDS OR DESIRES TO RELINQUISH HIS CITIZENSHIP, THAT SECTION
IS INEVITABLY INCONSISTENT WITH THE CONSTITUTIONAL PRINCIPLES DECLARED
IN AFROYIM. 

THE COURT TODAY HOLDS THAT THE CITIZENSHIP CLAUSE OF THE FOURTEENTH
AMENDMENT HAS NO APPLICATION TO BELLEI.  THE COURT FIRST NOTES THAT
AFROYIM WAS ESSENTIALLY A CASE CONSTRUING THE CITIZENSHIP CLAUSE OF THE
FOURTEENTH AMENDMENT.  SINCE THE CITIZENSHIP CLAUSE DECLARES THAT:
"ALL PERSONS BORN OR NATURLAIZED IN THE UNITED STATES . . . ARE
CITIZENS OF THE UNITED STATES . . . , " THE COIURT REASONS THAT
THEPROTECTIONS AGAINST INVOLUNTARY EXPATRIATION DECLARED IN AFROYIM DO
NOT PROTECT ALL AMERICAN CITIZENS, BUT ONLY THOSE "BORN OR NATURALIZED
IN THE UNITED STATES."  AFROYIM, THE ARGUMENT RUNS, WAS NATURALIZED IN
THIS COUNTRY SO HE WAS PROTECTED BY THE CITIZENSHIP CLAUSE, BUT BELLEI,
SINCE HE ACQUIRED HIS AMERICAN CITIZENSHIP AT BIRTH IN ITALY AS A
FOREIGN-BORN CHILD OF AN AMERICAN CITIZEN, WAS NEITHER BORN NOR
NATURALIZED IN THE UNITED STATES AND, HENCE, FALLS OUTSIDE THE SCOPE OF
THE FOURTEENTH AMENDMENT GUARANTEES DECLARED IN AFROYIM.  ONE COULD
HARDLY CALL THIS A GENEROUS READING OF THE GREAT PURPOSES THE
FOURTEENTH AMENDMENT WAS ADOPTED TO BRING ABOUT. 

WHILE CONCEDING THAT BELLEI IS AN AMERICAN CITIZEN, THE MAJORITY
STATES:  "HE SIMPLY IS NOT A FOURTEENTH-AMENDMENT-FIRST-SENTENCE
CITIZEN."  THEREFORE, THE MAJORITY REASONS, THE CONGRESSIONAL
REVOCATION OF HIS CITIZENSHIP IS NOT BARRED BY THE CONSTITUTION.  I
CANNOT ACCEPT THE COURT'S CONCLUSION THAT THE FOURTEENTH AMENDMENT
PROTECTS THE CITIZENSHIP OF SOME AMERICANS AND NOT OTHERS. 

INDEED, THE CONCEPT OF A HIERACHY OF CITIZENSHIP, SUGGESTED BY THE
MAJORITY OPINION, WAS FLATLY REJECTED IN SCHNEIDER V. RUSK, 377 U.S.
163 (1964):  "WE START FROM THE PREMISE THAT THE RIGHTS OF CITIZENSHIP
OF THE NATIVE BORN AND OF THE NATURALIZED PERSON ARE OF THE SAME
DIGNITY AND ARE COEXTENSIVE."  ID., AT 165.  THE COURT THERE HELD THAT
CONGRESS COULD NOT DEPRIVE MRS. SCHNEIDER OF HER CITIZENSHIP, WHICH
SHE, LIKE MR. BELLEI IN THE PRESENT CASE, ACQUIRED DERIVATIVELY THROUGH
HER CITIZEN MOTHER.  CONSEQUENTLY, THE MAJORITY IN ITS RUSH TO OVERRULE
AFROYIM MUST ALSO, IN EFFECT, OVERRULE SCHNEIDER AS WELL. 

UNDER THE VIEW ADOPTED BY THE MAJORITY TODAY, ALL CHILDREN BORN TO
AMERICANS WHILE ABROAD WOULD BE EXCLUDED FROM THE PROTECTIONS OF THE
CITIZENSHIP CLAUSE AND WOULD INSTEAD BE RELEGATED TO THE PERMANENT
STATUS OF SECOND-CLASS CITIZENSHIP, SUBJECT TO REVOCATION AT THE WILL
OF CONGRESS.  THE COURT REJECTED SUCH NARROW, RESTRICTIVE, AND SUPER
TECHNICAL INTERPRETATIONS OF THE CITIZENSHIP CLAUSE WHEN IT HELD IN
AFROYIM THAT THAT CLAUSE "WAS DESIGNED TO, AND DOES, PROTECT EVERY
CITIZEN OF THIS NATION . . . . "  387 U.S.,AT 268. 

AFROYIM'S BROAD INTERPRETATION OF THE SCOPE OF THE CITIZENSHIP CLAUSE
FINDS AMPLE SUPPORT IN THE LANGUAGE AND HISTORY OF THE FOURTEENTH
AMENDMENT.  BELLEI WAS NOT "BORN . . . IN THE UNITED STATES," BUT HE
WAS, CONSTITUTIONALLY SPEAKING, "NATURALIZED IN THE UNITED STATES." 
ALTHOUGH THOSE AMERICANS WHO ACQUIRE THEIR CITIZENSHIP UNDER STATUTES
CONFERRING CITIZENSHIP ON THE FOREIGN-BORN CHILDREN OF CITIZENS ARE NOT
POPULARLY THOUGHT AS NATURALIZED CITIZENS, THE USE OF THE WORD
"NATURALIZE" IN THIS WAY HAS A CONSIDERABLE CONSTITUTIONAL HISTORY. 
CONGRESS IS EMPOWERED BY THE CONSTITUTION TO "ESTABLISH AN UNIFORM RULE
OF NATURALIZATION," ART. I, SEC. 8.  ANYONE ACQUIRING CITIZENSHIP
SOLELY UNDER THE EXERCISE OF THIS POWER IS, CONSTITUTIONALLY SPEAKING,
A NATURALIZED CITIZEN.  THE FIRST CONGRESSIONAL EXERCISE OF THIS POWER,
ENTITLED "AN ACT TO ESTABLISH AN UNIFORM RULE OF NATURLAIZATION," WAS
PASSED IN 1790 AT THE SECOND SESSION OF THE FIRST CONGRESS.  IT
PROVIDED IN PART: 

"AND THE CHILDREN OF CITIZENS OF THE UNITED STATES, THAT MAY BE BORN
BEYOND SEA, OR OUT OF THE LIMITS OF THE UNITED STATES, SHALL BE
CONSIDERED AS NATURAL BORN CITIZENS:  PROVIDED, THAT THE RIGHT OF
CITIZENSHIP SHALL NOT DESCEND TO PERSONS WHOSE FATHERS HAVE NEVER BEEN
RESIDENT IN THE UNITED STATES."  1 STAT. 103, 104. 

THIS PROVISION IS THE EARLIEST FORM OF THE STATUTE UNDER WHICH
BELLEI ACQUIRED HIS CITIZENSHIP.  ITS ENACTMENT AS PART OF A "RULE OF
NATURALIZATION" SHOWS, I THINK, THAT THE FIRST CONGRESS CONCEIVED OF
THIS AND MOST LIKELY ALL OTHER PURELY STATUTORY GRANTS OF CITIZENSHIP
AS FORMS OR VARIETIES OF NATURALIZATION.  HOWEVER, THE CLEAREST
EXPRESSION OF THE IDEA THAT BELLEI AND OTHERS SIMIARLY SITUATED SHOULD
FOR CONSTITUTIONAL PURPOSES BE CONSIDERED AS NATURALIZED CITIZENS IS TO
BE FOUND IN UNITED STATES V. WONG KIM ARK, 169 U.S. 649 (1898): 

     "THE FOURTEENTH AMENDMENT OF THE CONSTITUTION . . .

  CONTEMPLATES TWO SOURCES OF CITIZENSHIP, AND TWO ONLY:  BIRTH AND

  NATURALIZATION.  CITIZENSHIP BY NATURALIZATION CAN ONLY BE

  ACQUIRED BY NATURALIZATION UNDER THE AUTHORITY AND IN THE FORMS

  OF LAW.  BUT CITIZENSHIP BY BIRTH IS ESTABLISHED BY THE MERE FACT

 OF BIRTH UNDER THE CIRCUMSTANCES DEFINED IN THE CONSTITUTION. 

  EVERY PERSON BORN IN THE UNITED STATES, AND SUBJECT TO THE

  JURISDICTION THEREOF, BECOMES AT ONCE A CITIZEN OF THE UNITED

  STATES, AND NEEDS NO NATURALIZATION.  A PERSON BORN OUT OF THE

  JURISDICTION OF THE UNITED STATES CAN ONLY BECOME A CITIZEN BY

  BEING NATURALIZED, EITHER BY TREATY, AS IN THE CASE OF THE

  ANNEXATION OF FOREIGN TERRITORY; OR BY AUTHORITY OF CONGRESS,

  EXERCISED EITHER BY DECLARING CERTAIN CLASSES OF PERSONS TO BE

  CITIZENS, AS IN THE ENACTMENTS CONFERRING CITIZENSHIP UPON

  FOREIGN-BORN CHILDREN OF CITIZENS, OR BY ENABLING FOREIGNERS

  INDIVIDUALLY TO BECOME CITIZENS BY PROCEEDINGS IN THE JUDICIAL

TRIBUNALS, AS IN THE ORDINARY PROVISIONS OF THE NATURALIZATION

  ACTS."  159 U.S.,AT 702-703. 

THE COURT IN WONG KIM ARK THUS STATED A BROAD AND COMPREHENSIVE
DEFINITION OF NATURALIZATION.  AS SHOWN IN WONG KIM ARK, NATURALIZATION
WHEN USED IN ITS CONSTITUTIONAL SENSE IS A GENERIC TERM DESCRIBING AND
INCLUDING WITHIN ITS MEANING ALL THOSE MODES OF ACQUIRING AMERICAN
CITIZENSHIP OTHER THAN BIRTH IN THIS COUNTRY.  ALL MEANS OF OBTAINING
AMERICAN CITIZENSHIP WHICH ARE DEPENDENT UPON A CONGRESSIONAL ENACTMENT
ARE FORMS OF NATURALIZATION.  THIS INCLUSIVE DEFINITION HAS BEEN
ADOPTED IN SEVERAL OPINIONS OF THIS COURT BESIDES UNITED STATES V. WONG
KIM ARK, SUPRA.  THIS IN MINOR V. HAPPERSETT, 21 WALL.  162, 167
(1875), THE COURT SAID:  "ADDITIONS MIGHT ALWAYS BE MADE TO THE
CITIZENSHIP OF THE UNITED STATES IN TWO WAYS:  FIRST, BY BIRTH, AND
SECOND, BY NATURALIZATION . . . . (NEW CITIZENS MAY BE BORN OR THEY MAY
BE CREATED BY NATURALIZATION."  AND IN ELK V. WILKINS, 112 U.S. 94
(1884), THE COURT TOOK THE POSITION THAT THE FOURTEENTH AMENDMENT 

"CONTEMPLATES TWO SOURCES OF CITIZENSHIP, AND TWO SOURCES ONLY:
BIRTH AND NATURALIZATION . . . PERSONS NOT . . . SUBJECT TO THE
JURISDICTION OF THE UNITED STATES AT THE TIME OF BIRTH CANNOT BECOME SO
AFTERWARDS, EXCEPT BY BEING NATURALIZED, EITHER INDIVIDUALLY, AS BY
PROCEEDINGS UNDER THE NATURALIZATION ACTS, OR COLLECTIVELY, AS BY THE
FORCE OF A TREATY BY WHICH FOREIGN TERRITORY IS ACQUIRED."  112 U.S.,AT
101-102. 

MOREOVER, THIS CONCEPT OF NATURALIZATION IS THE ONLY ONE PERMITTED
BY THIS COURT'S CONSISTENT ADOPTION OF THE VIEW THAT THE FOURTEENTH
AMENDMENT WAS INTENDED TO SUPPLY A COMPREHENSIVE DEFINITION OF AMERICAN
CITIZENSHIP.  IN AN OPINION WRITTEN SHORTLY AFTER THE FOURTEENTH
AMENDMENT WAS RATIFIED, THE COURT STATED THAT ONE OF THE PRIMARY
PURPOSES OF THE CITIZENSHIP CLAUSE WAS "TO ESTABLISH A CLEAR AND
COMPREHENSIVE DEFINITION OF CITIZENSHIP WHICH SHOULD DECLARE WHAT
SHOULD CONSTITUTE CITIZENSHIP OF THE UNITED STATES, AND ALSO
CITIZENSHIP OF A STATE."  SLAUGHTER-HOUSE CASES, 16 WALL.  36, 73
(1873).  IN HIS STUDY, THE ADOPTION OF THE FOURTEENTH AMENDMENT,
PROFESSOR FLACK SIMILARLY CONCLUDED THAT THE CITIZENSHIP CLAUSE "PUT
BEYOND DOUBT AND CAVIL IN THE ORIGINAL LAW, WHO WERE CITIZENS OF THE
UNITED STATES."  H. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT 89
(1908).  AND IN AFROYIM BOTH MAJORITY AND DISSENTING JUSTICES APPEAR TO
HAVE AGREED ON THE BASIC PROPOSITION THAT THE SCOPE OF THE CITIZENSHIP
CLAUSE, WHATEVER ITS EFFECT, DID REACH ALL CITIZENS.  THE OPINION OF
THE COURT IN AFROYIM DESCRIBED THE CITIZENSHIP CLAUSE AS "CALCULATED
COMPLETELY TO CONTROL THE STATUS OF CITIZENSHIP."  387 U.S.,AT 262. 
AND THE DISSENTING JUSTICES AGREED WITH THIS PROPOSITION TO THE EXTENT
OF HOLDING THAT THE CITIZENSHIP CLAUSE WAS A "DECLARATION OF THE
CLASSES OF INDIVIDUALS TO WHOM CITIZENSHIP INITIALLY ATTACHES."  ID.,
AT 292. 

THE MAJORITY OPINION APPEARS AT TIMES TO RELY ON THE ARGUMENT THAT
BELLEI, WHILE HE CONCEDEDLY MIGHT HAVE BEEN A NATURALIZED CITIZEN, WAS
NOT NATURALIZED "IN THE UNITED STATES."  THIS INTERPRETATION OBVIOUSLY
IMPOSES A LIMITATION ON THE SCOPE OF THE CITIZENSHIP CLAUSE WHICH IS
INCONSISTENT WITH THE CONCLUSION EXPRESSED ABOVE THAT THE FOURTEENTH
AMENDMENT PROVIDES A COMPREHENSIVE DEFINITION OF AMERICAN CITIZENSHIP,
FOR THE MAJORITY'S VIEW WOULD EXCLUDE FROM THE PROTECTION OF THAT
CLAUSE ALL THOSE WHO ACQUIRED AMERICAN CITIZENSHIP WHILE ABROAD.  I
CANNOT ACCEPT THE NARROW AND EXTRAORDINARILY TECHNICAL READING OF THE
FOURTEENTH AMENDMENT EMPLOYED BY THE COURT TODAY.  IF, FOR EXAMPLE,
CONGRESS SHOULD DECIDE TO VEST THE AUTHORITY TO NATURALIZE ALIENS IN
AMERICAN EMBASSY OFFICIALS ABROAD RATHER THAN HAVING THE CEREMONY
PERFORMED IN THIS COUNTRY, I HAVE NO DOUBT THAT THOSE SO NATURALIZED
WOULD BE JUST AS FULLY PROTECTED BY THE FOURTEENTH AMENDMENT AS ARE
THOSE WHO GO THROUGH OUR PRESENT NATURALIZATION PROCEDURES.  RATHER
THAN THE TECHNICAL READING ADOPTED BY THE MAJORITY, IT IS MY VIEW THAT
THE WORD "IN" AS IT APPEARS IN THE PHRASE "IN THE UNITED STATES" WAS
SURELY MEANT TO BE UNDERSTOOD IN TWO SOMEWHAT DIFFERENT SENSES:  ONE
CAN BECOME A CITIZEN OF THIS COUNTRY BY BEING BORN WITHIN IT OR BY
BEING NATURALIZED INTO IT.  THIS INTERPRETATION IS SUPPORTED BY THE
LEGISLATIVE HISTORY OF THE CITIZENSHIP CLAUSE.  THAT CLAUSE WAS ADDED
IN THE SENATE RATHER LATE IN THE DEBATES ON THE FOURTEENTH AMENDMENT,
AND AS ORIGINALLY INTRODUCED ITS REFERENCE WAS TO ALL THOSE "BORN IN
THE UNITED STATES OR NATURALIZED BY THE LAWS THEREOF."  CONG. GLOBE,
39TH CONG., 1ST SESS., 2768.  THE FINAL VERSION OF THE CITIZENSHIP
CLAUSE WAS UNDOUBTEDLY INTENDED TO HAVE THIS SAME SCOPE.  SEE FLACK,
SUPRA, AT 88-89. 

THE MAJORITY TAKES THE POSITION THAT BELLEI, ALTHOUGH ADMITTEDLY A
CITIZEN OF THIS COUNTRY, WAS NOT ENTITLED TO THE PROTECTIONS OF THE
CITIZENSHIP CLAUSE.  I WOULD NOT DEPART FROM THE HOLDING IN AFROYIM
THAT EVERY AMERICAN CITIZEN HAS FOURTEENTH AMENDMENT CITIZENSHIP. 
BELLEI, AS A NATURALIZED AMERICAN, IS ENTITLED TO ALL THE RIGHTS AND
PRIVILEGES OF AMERICAN CITIZENSHIP, INCLUDING THE RIGHT TO KEEP HIS
CITIZENSHIP UNTIL HE VOLUNTARILY RENOUNCES OR RELINQUISHES IT. 

THE COURT TODAY PUTS ASIDE THE FOURTEENTH AMENDMENT AS A STANDARD BY
WHICH TO MEASURE CONGRESSIONAL ACTION WITH RESPECT TO CITIZENSHIP, AND
SUBSTITUTES IN ITS PLACE THE MAJORITY'S OWN VAGUE NOTIONS OF
"FAIRNESS."  THE MAJORITY TAKES A NEW STEP WITH THE RECURRING THEME
THAT THE TEST OF CONSTITUTIONALITY IS THE COURT'S OWN VIEW OF WHAT IS
"FAIR, REASONABLE, AND RIGHT."  DESPITE THE CONCESSION THAT BELLEI WAS
ADMITTEDLY AN AMERICAN CITIZEN, AND DESPITE THE HOLDING IN AFROYIM THAT
THE FOURTEENTH AMENDMENT HAS PUT CITIZENSHIP, ONCE CONFERRED, BEYOND
THE POWER OF CONGRESS TO REVOKE, THE MAJORITY TODAY UPHOLDS THE
REVOCATION OF BELLEI'S CITIZENSHIP ON THE GROUND THAT THE CONGRESSIONAL
ACTION WAS NOT "IRRATIONAL OR ARBITRARY OR UNFAIR."  THE MAJORITY
APPLIES THE "SHOCK-THE-CONSCIENCE" TEST TO UPHOLD, RATHER THAN STRIKE,
A FEDERAL STATUTE.  IT IS A DANGEROUS CONCEPT OF CONSTITUTIONAL LAW
THAT ALLOWS THE MAJORITY TO CONCLUDE THAT, BECAUSE IT CANNOT SAY THE
STATUTE IS "IRRATIONAL OR ARBITRARY OR UNFAIR," THE STATUTE MUST BE
CONSTITUTIONAL. 

OF COURSE THE COURT'S CONSTRUCTION OF THE CONSTITUTION IS NOT A
"STRICT" ONE.  ON THE CONTRARY, IT PROCEEDS ON THE PREMISE THAT A
MAJORITY OF THIS COURT CAN CHANGE THE CONSTITUTION DAY BY DAY, MONTH BY
MONTH, AND YEAR BY YEAR, ACCORDING TO ITS SHIFTING NITIONS OF WHAT IS
FAIR, REASONABLE, AND RIGHT.  THERE WAS LITTLE NEED FOR THE FOUNDES TO
DRAFT A WRITTEN CONSTITUTION IF THIS COURT CAN SAY IT IS ONLY BINDING
WHEN A MAJORITY FINDS IT FAIR, REASONABLE, AND RIGHT TO MAKE IT SO.
THAT IS THE LOOSEST CONSTRUCTION THAT COULD BE EMPLOYED.  IT IS TRUE
THAT ENGLAND HAS MOVED ALONG VERY WELL IN THE WORLD WITHOUT A WRITTEN
CONSTITUTION.  BUT WITH COMPLETE FAMILIARITY WITH THE ENGLISH
EXPERIENCE, OUR ANCESTORS DETERMINED TO DRAFT A WRITTEN CONSTITUTION
WHICH THE MEMBERS OF THIS COURT ARE SWORN TO OBEY.  WHILE I REMAIN ON
THE COURT I SHALL CONTINUE TO OPPOSE THE POWER OF JUDGES, APPOINTED BY
CHANGING ADMINISTRATIONS, TO CHANGE THE CONSTITUTION FROM TIME TO TIME
ACCORDING TO THEIR NOTIONS OF WHAT IS "FAIR" AND "REASONABLE."  I WOULD
DECIDE THIS CASE NOT BY MY VIEWS OF WHAT IS "ARBITRARY," OR WHAT IS
"FAIR," BUT RATHER BY WHAT THE CONSTITUTION COMMANDS. 

I DISSENT.     /1/  SECTION 1993 OF THE REVISED STATUTES, AS AMENDED
BY THE ACT OF MAY 24, 1934, 48 STAT. 797. 

/2/  8 U.S.C. 1401(B). 

MR. JUSTICE BRENNA, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

SINCE THE COURT THIS TERM HAS ALREADY DOWNGRADED CITIZENS RECEIVING
PUBLIC WELFARE, WYMAN V. JMAES, 400 U.S. 309 (1971), AND CITIZENS
HAVING THE MISFORTUNE TO BE ILLEGITIMATE, LABINE V. VINCENT, ANTE, P.
532, I SUPPOSE TODAY'S DECISION DOWNGRADING CITIZENS BORN OUTSIDE THE
UNITED STATES SHOULD HAVE BEEN EXPECTED.  ONCE AGAIN, AS IN JAMES AND
LABINE, THE COURT'S OPINION MAKES EVIDENT THAT ITS HOLDING IS CONTRARY
TO EARLIER DECISIONS.  CONCEDEDLY, PETITIONER WAS A CITIZEN AT BIRTH,
NOT BY CONSTITUTIONAL RIGHT, BUT ONLY THROUGH OPERATION OF A FEDERAL
STATUTE.  IN THE LIGHT OF THE COMPLETE LACK OF RATIONAL BASIS FOR
DISTINGUISHING AMONG CITIZENS WHOSE NATURALIZATION WAS CARRIED OUT
WITHIN THE PHYSICAL BOUNDS OF THE UNITED STATES, AND THOSE, LIKE
BELLEI, WHO MAY BE NATURALIZED OVERSEAS, THE CONCLUSION IS COMPELLED
THAT THE REFERENCE IN THE FOURTEENTH AMENDMENT TO PERSONS "BORN OR
NATURALIZED IN THE UNITED STATES" INCLUDES THOSE NATURALIZED THROUGH
OPERATION OF AN ACT OF CONGRESS, WHEREVER THEY MAY BE AT THE TIME. 
CONGRESS WAS THEREFORE POWERLESS TO STRIP BELLEI OF HIS CITIZENSHIP; HE
COULD LOSE IT ONLY IF HE VOLUNTARILY RENOUNCED OR RELINQUISHED IT.
AFROYIM V. RUSK, 387 U.S. 253 (1967).  I DISSENT. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR APPELLANT ON THE
REARGUMENT.  WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL
WILSON AND CHARLES GORDON.  JOSEPH J. CONNOLLY ARGUED THE CAUSE FOR
APPELLANT ON THE ORIGINAL ARGUMENT. 

O. JOHN ROGGE REARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 

RICHARD N. GARDNER ARGUED THE CAUSE ON THE REARGUMENT FOR THE
ASSOCIATION OF AMERICAN WIVES OF EUROPEANS ET AL. AS AMICI CURIAE
URGING AFFIRMANCE.  WITH HIM ON THE BRIEF WERE ALEXIS C. COUDERT,
EUGENE L. GIRDEN, JOSEPH H. GORDON, DAVID M. GOODER, AND ARLENE TUCK
ULMAN. 

JAMES SINCLAIR, PRO SE, FILED A BRIEF AS AMICUS CURIAE URGING
REVERSAL. 

DONALD L. UNGAR FILED A BRIEF FOR VICENTE GONZALEZ-GOMEZ AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :
















JOHNSON V. UNITED STATES, 401 U.S. 846 


       JOHNSON V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

        NO. 5247.  ARGUED MARCH 24, 1971-- DECIDED APRIL 5, 1971 


139 U.S.APP.D.C. 174, 426 F.2D 651, CERTIORARI DISMISSED AS
IMPROVIDENTLY GRANTED. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

IN THE PETITIONER'S TRIAL ON A CHARGE OF RAPE, THE DISTRICT JUDGE
INSTRUCTED THE JURY THAT IT COULD RETURN A VERDICT OF GUILTY WITH THE
DEATH PENALTY.  YET THAT VERDICT WAS CONSTITUTIONALLY IMPERMISSIBLE IN
LIGHT OF THIS COURT'S DECISION IN UNITED STATES V. JACKSON, 390 U.S.
570.  SEE BAILEY V. UNITED STATES, 132 U.S.APP.D.C. 82, 86 AND N. 3,
405 F.2D 1352, 1356 AND N. 3.  I THINK THE EXTREME PREJUDICE ARISING
FROM THIS ERRONEOUS INSTRUCTION REQUIRES REVERSAL OF THE JUDGMENT OF
CONVICTION AND A REMAND OF THIS CASE FOR A NEW TRAIL.  CF. PRICE V.
GEORGIA, 398 U.S. 323, 331-332. 

WILLIAM J. LIPPMAN, BY APPOINTMENT OF THE COURT, 400 U.S. 940,
ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

SAMUEL HUNTINGTON ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WILSON, AND ROGER A. PAULEY. 
..END :












KITCHENS V. SMITH, 401 U.S. 847 


       KITCHENS V. SMITH, WARDEN

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

GEORGIA

        NO. 6131.  DECIDED APRIL 5, 1971 


PETITIONER CHALLENGES HIS 1944 ROBBERY CONVICTION, WHEN HE WAS NOT
REPRESENTED BY COUNSEL, ON THE BASIS OF GIDEON V. WAINWRIGHT, 372 U.S.
335 (1963).  IN HIS HABEAS CORPUS PETITION HE STATED THAT HE WAS UNABLE
TO OBTAIN COUNSEL "BECAUSE OF HIS IMPOVERISHED CONDITION," AND AT THE
HEARING HE SAID, "I DIDN'T HAVE ANY MONEY AND I DIDN'T HAVE A LAWYER." 
RESPONDENT MADE NO EFFORT TO SHOW THAT PETITIONER WAS NOT INDIGENT AT
THE TIME OF HIS CONVICTION.  THE GEORGIA COURTS DENIED HIS PETITION. 
HELD:  ON THIS RECORD PETITIONER PROVED HE WAS WITHOUT COUNSEL DUE TO
INDIGENCY AT THE TIME OF HIS CONVICTION, AND ACCORDINGLY HE IS ENTITLED
TO RELIEF AS GIDEON IS FULLY RETROACTIVE. 

CERTIORARI GRANTED; 226 GA. 667, 177 S.E.2D 87, REVERSED AND
REMANDED. 

PER CURIAM. 

PETITIONER PLEADED GUILTY TO ROBBERY IN A GEORGIA STATE COURT IN
1944.  HE WAS NOT REPRESENTED BY COUNSEL AT ANY TIME.  WHILE SERVING
HIS SENTENCE, PETITIONER ESCAPED AND DID NOT RETURN TO GEORGIA UNTIL
1969, WHEN HE WAS RETURNED TO FINISH THE REMAINDER OF HIS SENTENCE.  HE
THEN BROUGHT THIS HABEAS CORPUS ACTION IN COUNTY COURT, ALLEGING THAT
HIS CONVICTION WAS VOID UNDER GIDEON V. WAINWRIGHT, 372 U.S. 335
(1963).  THE COUNTY COURT DENIED RELIEF BECAUSE GIDEON WAS "RECENT LAW
AND UNDER THE LAW AT THE TIME OF HIS SENTENCE, THE SENTENCE MET THE
REQUIREMENTS OF THE LAW AT THAT TIME."  THIS WAS ERROR SINCE AS WE HAVE
OFTEN NOTED, GIDEON IS FULLY RETROACTIVE.  SEE, E.G., LINKLETTER V.
WALKER, 381 U.S. 618, 639 (1965); DESIST V. UNITED STATES, 394 U.S.
244, 250 N. 15 (1969); MCCONNELL V. RHAY, 393 U.S. 2, 3 (1968); STOVALL
V. DENNO, 388 U.S. 293, 297-298 (1967). 

ON APPEAL, THE GEORGIA SUPREME COURT AFFIRMED THE DENIAL OF HABEAS
CORPUS ON DIFFERENT GROUNDS, SAYING THAT PETITIONER DID NOT TESTIFY AT
THE HABEAS CORPUS HEARING THAT HE "WANTED A LAWYER, ASKED FOR ONE, OR
MADE ANY EFFORT TO GET ONE" OR THAT "BECAUSE OF HIS POVERTY, OR FOR ANY
OTHER REASON, HE WAS UNABLE TO HIRE A LAWYER."  226 GA. 667, 177 S.E.2D
87-88 (1970). 

AS THIS COURT HAS SAID, HOWEVER, "(IT IS SETTLED THAT WHERE THE
ASSISTANCE OF COUNSEL IS A CONSTITUTIONAL REQUISITE, THE RIGHT TO BE
FURNISHED COUNSEL DOES NOT DEPEND ON A REQUEST."  CARNLEY V. COCHRAN,
369 U.S. 506, 513 (1962).  THIS APPLIES TO GUILTY PLEAS AS WELL AS TO
TRIALS.  UVEGES V. EPNNSYLVANIA, 335 U.S. 437, 441 (1948). 

OF COURSE, TO ESTABLISH HIS RIGHT TO APPOINTED COUNSEL IN 1944,
PETITIONER HAD THE BURDEN OF PROVING HIS INABILITY AT THAT TIME TO HIRE
AN ATTORNEY.  HIS PETITION FOR HABEAS CORPUS SPECIFICALLY AVERRED THAT
HE WAS UNABLE TO OBTAIN COUNSEL "BECAUSE OF HIS IMPOVERISHED CONDITION"
AT THAT TIME.  THE RESPONDENT DENIED THIS ALLEGATION AND THUS PUT THE
MATTER IN ISSUE.  AT THE HEARING, PETITIONER TESTIFIED, "I WAS A LOT
YOUNGER AND I DIDN'T HAVE ANY MONEY AND I DIDN'T HAVE A LAWYER . . . .
"  THE STATE MADE NO EFFORT WHATEVER TO CONTRADICT PETITIONER'S
TESTIMONY THAT HE WAS INDIGENT; NO PART OF ITS CASE WENT TO THE ISSUE
OF INDIGENCY.  IN THIS LIGHT, THE GEORGIA SUPREME COURT'S FINDING THAT
PETITIONER "DID NOT TESTIFY . . . THAT BECAUSE OF HIS POVERTY, OR FOR
ANY OTHER REASON, HE WAS UNABLE TO HIRE A LAWYER" IS EXPLICABLE ONLY
UNDER THE MOST RIGID RULES OF TESTIMONIAL CONSTRUCTION.  THOUGH
PETITIONER DID NOT PRECISELY TESTIFY THAT HIS FAILURE TO OBTAIN A
LAWYER WAS A RESULT OF HIS INDIGENCY, THIS WAS THE UNDENIABLE
IMPLICATION OF HIS TESTIMONY, ESPECIALLY IN VIEW OF THE HABEAS CORPUS
PETITION'S ALLEGATION THAT PETITIONER WAS UNABLE TO HIRE AN ATTORNEY
"BECAUSE OF" HIS INDIGENCY.  THE HEARING BELOW, AS THE TRANSCRIPT
SHOWS, WAS CONDUCTED INFORMALLY.  PETITIONER HAD NO LAWYER, AND
INTRODUCED NO EVIDENCE OTHER THAN HIS OWN TESTIMONY.  HE TESTIFIED
DISCURSIVELY; NO OBJECTIONS WERE MADE BY THE STATE, NOR DID IT CROSS
EXAMINE PETITIONER ON THE ISSUE OF INDIGENCY. 

IT IS OUR VIEW THAT ON THIS RECORD PETITIONER PROVED HE WAS WITHOUT
COUNSEL DUE TO INDIGENCY AT THE TIME OF HIS CONVICTION.  THE PETITION
FOR CERTIORARI IS GRANTED, THE JUDGMENT OF THE GEORGIA SUPREME COURT IS
REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 
..END :














LABINE V. VINCENT, 401 U.S. 532 


       LABINE, TUTRIX V. VINCENT, ADMINISTRATOR

APPEAL FROM THE SUPREME COURT OF LOUISIANA

        NO. 5257.  ARGUED JANUARY 19, 1971-- DECIDED MARCH 29,
1971 


EZRA VINCENT DIED INTESTATE, SURVIED BY ONLY COLLATERIAL RELATIONS
AND AN ILLEGITIMATE DUAGHTER, WHOSE GUARDIAN (APPELLANT) SUED TO HAVE
HER DECLARED VINCENT'S SOLE HEIR.  THE TRIAL COURT RULED THAT UNDER
LOUISIANA LAW THE COLLATERAL RELATIONS TOOK THE DECEDENT'S PROPERTY TO
THE EXCLUSION OF THE DAUGHTER, WHO HAD BEEN ACKNOWLEDGED BY HER FATHER
BUT NOT LEGITIMATED.  THE LOUISIANA COURT OF APPEAL AFFIRMED.  THE
STATE SUPREME COURT DENIED CERTIORARI.  APPELLANT, RELYING ON LEVY V.
LOUISIANA, 391 U.S. 68, CONTENDS THAT LOUISIANA'S INTESTATE SUCCESSION
LAWS THAT BAR AN ILLEGITIMATE CHILD FROM SHARING EQUALLY WITH
LEGITIMATE CHILDREN IN THE FATHER'S ESTATE CONSTITUTE AN INVIDIOUS
DISCRIMINATION VIOLATIVE OF THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE CONSTITUTION.  HELD:  THE LOUISIANA STATUTORY INTESTATE
SUCCESSION SCHEME IS WITHIN THE STATE'S POWER TO ESTABLISH RULES FOR
THE PROTECTION AND STRENGTHENING OF FAMILY LIFE AND FOR THE DISPOSITION
OF PROPERTY, AND IN VIEW OF VARIOUS STATUTORY ALTERNATIVES, NONE OF
WHICH WAS CHOSEN BY VINCNET, DID NOT (UNLIKE THE SITUATION IN LEVY)
CONSTITUTE AN INSURMOUNTABLE BARRIER TO ILLEGITIMATE CHILDREN.  PP. 535
540. 

255 LA. 480, 231 SO.2D 395, AFFIRMED.  SEE:  229 SO.2D 449. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND HARLAN, STEWART, AND BLACKMUN, JJ., JOINED.  HARLAN, J.,
FILED A CONCURRING OPINION, POST, P. 540.  BRENNAN, J., FILED A
DISSENTING OPINION, IN WHICH DOUGLAS, WHITE, AND MARSHALL, JJ., JOINED,
POST, P. 541. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THIS APPEAL THE GUARDIAN (TUTRIX) OF AN ILLEGITIMATE MINOR CHILD
ATTACKS THE CONSTITUTIONALITY OF LOUISIANA'S LAWS THAT BAR AN
ILLEGITIMATE CHILD FROM SHARING EQUALLY WITH LEGITIMATES IN THE ESTATE
OF THEIR FATHER WHO HAD PUBLICLY ACKNOWLEDGED THE CHILD, BUT WHO DIED
WITHOUT A WILL.  TO UNDERSTAND APPELLANT'S CONSTITUTIONAL ARGUMENTS AND
OUR DECISION, IT IS NECESSARY BRIEFLY TO REVIEW THE FACTS GIVING RISE
TO THIS DISPUTE.  ON MARCH 15, 1962, A BABY GIRL, RITA VINCENT, WAS
BORN TO LOU BERTAH PATTERSON (NOW LOU BERTHA LABINE) IN CALCASIEU
PARISH, LOUISIANA.  ON MAY 10, 1962, LOU BERTAH PATTERSON AND EZRA
VINCENT, AS AUTHORIZED BY LOUISIANA LAW, JOINTLY EXECUTED BEFORE A
NOTARY A LOUISANA STATE BOARD OF HEALTH FORM ACKNOWLEDGING THAT EZRA
VINCENT WAS THE "NATURAL FATHER" OF RITA VINCENT.  /1/  THIS PUBLIC
ACKNOWLEDGMENT OF PARENTAGE DID NOT, UNDER LOUISIANA LAW, GIVE THE
CHILD A LEGAL RIGHT TO SHARE EQUALLY WITH LEGITIMATE CHILDREN IN THE
PARENT'S ESTATE BUT IT DID GIVE HER A RIGHT TO CLAIM SUPPORT FROM HER
PARENTS OR THEIR HEIRS.  THE ACKNOWLEDGMENT ALSO GAVE THE CHILD THE
CAPACITY UNDER LOUISIANA LAW TO BE A LIMITED BENEFICIAR[ UNDER HER
FATHER'S WILL IN THE EVENT HE LEFT A WILL NAMING HER, WHICH HE DID NOT
DO HERE. 

EZRA VINCENT DIED INTESTATE, THAT IS, WITHOUT A WILL, ON SEPTEMBER
16, 1968, IN RAPIDES PARISH, LOUISIANA, LEAVING SUBSTANTIAL PROPERTY
WITHIN THE STATE, BUT NO WILL TO DIRECT ITS DISTRIBUTION.  APPELLANT,
AS THE GUARDIAN OF RITA VINCENT, PETITIONED IN STATE COURT FOR THE
APPOINTMENT OF AN ADMINISTRATOR FOR THE FATHER'S ESTATE; FOR A
DECLARATION THAT RITA VINCENT IS THE SOLE HEIR OF EZRA VINCENT; AND FOR
AN ORDER DIRECTING THE ADMINISTRATOR TO PAY SUPPORT AND MAINTENANCE FOR
THE CHILD.  IN THE ALTERNATIVE, APPELLANT SOUGHT A DECLARATION THAT THE
CHILD WAS ENTITLED TO SUPPORT AND MAINTENANCE OF $150 PER MONTH UNDER A
LOUISIANA CHILD SUPPORT LAW.  /2/ 

THE ADMINISTRATOR OF THE SUCCESSION OF EZRA VINCENT ANSWERED THE
PETITION CLAIMING THAT VINCENT'S RELATIVES WERE ENTITLED TO THE WHOLE
ESTATE.  HE RELIED FOR THE CLAIM UPON TWO ARTICLES OF THE LOUISIANA
CIVIL CODE OF 1970; ART. 206, WHICH PROVIDES: 

     "ILLEGITIMATE CHILDREN, THOUGH DULY ACKNOWLEDGED, CAN NOT
CLAIM

  THE RIGHTS OF LEGITIMATE CHILDREN . . . " 

AND ART. 919, WHICH PROVIDES: 

     "NATURAL CHILDREN ARE CALLED TO THE INHERITANCE OF THEIR

  NATURAL FATHER, WHO HAS DULY ACKNOWLEDGED THEM, WHEN HE HAS LEFT

 NO DESCENDANTS NOR ASCENDANTS, NOR COLLATERAL RELATIONS, NOR

  SURVIVING WIFE, AND TO THE EXCLUSION ONLY OF THE STATE." 

THE COURT RULED THAT THE RELATIVES OF THE FATHER WERE HIS COLLATERAL
RELATIONS AND THAT UNDER LOUISIANA'S LAWS OF INTESTATE SUCCESSION TOOK
HIS PROPERTY TO THE EXCLUSION OF ACKNOWLEDGED, BUT NOT LEGITIMATED,
ILLEGITIMATE CHILDREN.  THE COURT, THEREFORE, DISMISSED WITH COSTS THE
GUARDIAN MOTHER'S PETITION TO RECOGNIZE THE CHILD AS AN HEIR.  THE
COURT ALSO RULED THAT IN VIEW OF SOCIAL SECURITY PAYMENTS OF $60 PER
MONTH AND VETERANS ADMINISTRATION PAYMENTS OF $40 PER MONTH AVAILABLE
FOR THE SUPPORT OF THE CHILD, THE GUARDIAN FOR THE CHILD WAS NOT
ENTITLED TO SUPPORT OR MAINTENANCE FROM THE SUCCESSION OF EZRA
VINCENT.  /3/  THE LOUISIANA COURT OF APPEAL, THIRD CIRCUIT, AFFIRMED
AND THE SUPREME COURT OF LOUISIANA DENIED A PETITION FOR WRIT OF
CERTIORARI.  THE CHILD'S GUARDIAN APPEALED AND WE NOTED PROBABLE
JURISDICTION.  400 U.S. 817 (1970). 

IN THIS COURT APPELLANT ARGUES THAT LOUISIANA'S STATUTORY SCHEME FOR
INTESTATE SUCCESSION THAT BARS THIS ILLEGITIMATE CHILD FROM SHARING IN
HER FATHER'S ESTATE CONSTITUTES AN INVIDIOUS DISCRIMINATION AGAINST
ILLEGITIMATE CHILDREN THAT CANNOT STAND UNDER THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE CONSTITUTION.  MUCH RELIANCE IS PLACED UPON
THE COURT'S DECISIONS IN LEVY V. LOUISIANA, 391 U.S. 68 (1968), AND
GLONA V. AMERICAN GUARANTEE & LIABILITY INSURANCE CO., 391 U.S. 73
(1968).  FOR THE REASONS SET OUT BELOW, WE FIND APPELLANT'S RELIANCE ON
THOSE CASES MISPLACED, AND WE DECLINE TO EXTEND THE RATIONALE OF THOSE
CASES WHERE IT DOES NOT APPLY.  ACCORDINGLY, WE AFFIRM THE DECISION
BELOW. 

IN LEVY THE COURT HELD THAT LOUISIANA COULD NOT CONSISTENTLY WITH
THE EQUAL PROTECTION CLAUSE BAR AN ILLEGITIMATE CHILD FROM RECOVERING
FOR THE WRONGFUL DEATH OF ITS MOTHER WHEN SUCH RECOVERIES BY LEGITIMATE
CHILDREN WERE AUTHORIZED.  THE CAUSE OF ACTION ALLEGED IN LEVY WAS IN
TORT.  IT WAS UNDISPUTED THAT LOUISIANA HAD CREATED A STATUTORY TORT
/4/  AND HAD PROVIDED FOR THE SURVIVIAL OF THE DECEASED'S CAUSE OF
ACTION, /5/  SO THAT A LARGE CLASS OF PERSONS INJURED BY THE TORT COULD
RECOVER DAMAGES IN COMPENSATION FOR T4EIR INJURY.  UNDER THOSE
CIRCUMSTANCES THE COURT HELD THAT THE STATE COULD NOT TOTALLY EXCLUDE
FROM THE CLASS OF POTENTIAL PLAINTIFFS ILLEGITIMATE CHILDREN WHO WERE
UNQUESTIONABLY INJURED BY THE TORT THAT TOOK THEIR MOTHER'S LIFE.  LEVY
DID NOT SAY AND CANNOT FAIRLY BE READ TO SAY THAT A STATE CAN NEVER
TREAT AN ILLEGITIMATE CHILD DIFFERENTLY FROM LEGITIMATE OFFSPRING. 
/6/ 

THE PEOPLE OF LOUISIANA, THROUGH THEIR LEGISLATURE HAVE CAREFULLY
REGULATED MANY OF THE PROPERTY RIGHTS INCIDENT TO FAMILY LIFE. 
LOUISIANA LAW PRESCRIBES CERTAIN FORMALITIES REQUISITE TO THE
CONTRACTING OF MARRIAGE.  /7/  ONCE MARRIAGE IS CONTRACTED THERE,
HUSBANDS HAVE OBLIGATIONS TO THEIR WIVES.  /8/  FATHERS HAVE
OBLIGATIONS TO THEIR CHILDREN.  /9/  SHOULD THE CHILDREN PROSPER WHILE
THE PARENTS FALL UPON HARD TIMES, CHILDREN HAVE A STATUTORY OBLIGATION
TO SUPPORT THEIR PARENTS.  /10/  TO FURTHER STRENGTHEN AND PRESERVE
FAMILY TIES, LOUISIANA REGULATES THE DISPOSITION OF PROPERTY UPON THE
DEATH OF A FAMILY MAN.  THE SURVIVING SPOUSE IS ENTITLED TO AN INTEREST
IN THE DECEASED SPOUSE'S ESTATE.  /11/  LEGITIMATE CHILDREN HAVE A
RIGHT OF FORCED HEIRSHIP IN THEIR FATHER'S ESTATE AND CAN EVEN RETRIEVE
PROPERTY TRANSFERRED BY THEIR FATHER DURING HIS LIFETIME IN REDUCTION
OF THEIR RIGHTFUL INTERESTS.  /12/ 

LOUISIANA ALSO HAS A COMPLEX SET OF RULES REGARDING THE RIGHTS OF
ILLEGITIMATE CHILDREN.  CHILDREN BORN OUT OF WEDLOCK AND WHO ARE NEVER
ACKNOWLEDGED BY THEIR PARENTS APPARENTLY HAVE NO RIGHT TO TAKE PROPERTY
BY INTESTATE SUCCESSION FROM THEIR FATHER'S ESTATE.  IN SOME INSTANCES,
THEIR FATHER MAY NOT EVEN BEQUEATH PROPERTY TO THEM BY WILL.  /13/
ILLEGITIMATE CHILDREN ACKNOWLEDGED BY THEIR FATHERS ARE "NATURAL
CHILDREN."  NATURAL CHILDREN CAN TAKE FROM THEIR FATHER BY INTESTATE
SUCCESSION "TO THE EXCLUSION ONLY OF THE STATE."  THEY MAY BE
BEQUEATHED PROPERTY BY THEIR FATHER ONLY TO THE EXTENT OF EITHER ONE
THIRD OR ONE-FOURTH OF HIS ESTATE AND THEN ONLY IF THEIR FATHER IS NOT
SURVIVED BY LEGITIMATE CHILDREN OR THEIR HEIRS.  /14/  FINALLY,
CHILDREN BORN OUT OF WEDLOCK CAN BE LEGITIMATED OR ADOPTED, IN WHICH
CASE THEY MAY TAKE BY INTESTATE SUCCESSION OR BY WILL AS ANY OTHER
CHILD. 

THESE RULES FOR INTESTATE SUCCESSION MAY OR MAY NOT REFLECT THE
INTENT OF PARTICULAR PARENTS.  MANY WILL THINK THAT IT IS UNFORTUNATE
THAT THE RULES ARE SO RIGID.  OTHERS WILL THINK DIFFERENTLY.  BUT THE
CHOICES REFLECTED BY THE INTESTATE SUCCESSION STATUTE ARE CHOICES WHICH
IT IS WITHIN THE POWER OF THE STATE TO MAKE.  THE FEDERAL CONSTITUTION
DOES NOT GIVE THIS COURT THE POWER TO OVERTURN THE STATE'S CHOICE UNDER
THE GUISE OF CONSTITUTIONAL INTERPRETATION BECAUSE THE JUSTICES OF THIS
COURT BELIEVE THAT THEY CAN PROVIDE BETTER RULES.  OF COURSE, IT MAY BE
SAID THAT THE RULES ADOPTED BY THE LOUISIANA LEGISLATURE "DISCRIMINATE"
AGAINST ILLEGITIMATES.  BUT THE RULES ALSO DISCRIMINATE AGAINST
COLLATERAL RELATIONS, AS OPPOSED TO ASCENDANTS, AND AGAINST ASCENDANTS,
AS OPPOSED TO DESCENDANTS.  OTHER RULES DETERMINING PROPERTY RIGHTS
BASED ON FAMILY STATUS ALSO "DISCRIMINATE" IN FAVOR OF WIVES AND
AGAINST "CONCUBINES."  /15/  THE DISSENT ATTEMPTS TO DISTINGUISH THESE
OTHER "DISCRIMINATIONS" ON THE GROUND THAT THEY HAVE A BIOLOGICAL OR
SOCIAL BASIS.  THERE IS NO BIOLOGICAL DIFFERENCE BETWEEN A WIFE AND A
CONCUBINE, NOR DOES THE CONSTITUTIONREQUIRE THAT THERE BE SUCH A
DIFFERENCE BEFORE THE STATE MAY ASSERT ITS POWER TO PROTECT THE WIFE
AND HER CHILDREN AGAINST THE CLAIMS OF A CONCUBINE AND HER CHILDREN. 
THE SOCIAL DIFFERENCE BETWEEN A WIFE AND A CONCUBINE IS ANALOGOUS TO
THE DIFFERENCE BETWEEN A LEGITIMATE AND AN ILLEGITIMATE CHILD.  ONE SET
OF RELATIONSHIPS IS SOCIALLY SANCTIONED, LEGALLY RECOGNIZED, AND GIVES
RISE TO VARIOUS RIGHTS AND DUTIES.  THE OTHER SET OF RELATIONSHIPS IS
ILLICIT AND BEYOND THE RECOGNITION OF THE LAW.  SIMILARLY, THE STATE
DOES NOT NEED BIOLOGICAL OR SOCIAL REASONS FOR DISTINGUISHING BETWEEN
ASCENDANTS AND DESCENDANTS.  SOME OF THESE DISCRIMINATORY CHOICES ARE
PERHAPS MORE CLOSELY CONNECTED TO OUR CONCEPTIONS OF SOCIAL JUSTICE OR
THE WAYS IN WHICH MOST DYING MEN WISH TO DISPOSE OF THEIR PROPERTY THAN
THE LOUISIANA RULES GOVERNING ILLEGITIMATE CHILDREN.  IT MAY BE
POSSIBLE THAT SOME OF THESE CHOICES ARE MORE "RATIONAL" THAN THE
CHOICES INHERENT IN LOUISIANA'S CATEGORIES OF ILLEGITIMATES.  BUT THE
POWER TO MAKE RULES TO ESTABLISH, PROTECT, AND STRENGTHEN FAMILY LIFE
AS WELL AS TO REGULATE THE DISPOSITION OF PROPERTY LEFT IN LOUISIANA BY
A MAN DYING THERE IS COMMITTED BY THE CONSTITUTION OF THE UNITED STATES
AND THE PEOPLE OF LOUISIANA TO THE LEGISLATURE OF THAT STATE.  ABSENT A
SPECIFIC CONSTITUTIONAL GUARANTEE, IT IS FOR THAT LEGISLATURE, NOT THE
LIFE-TENURED JUDGES OF THIS COURT, TO SELECT FROM AMONG POSSIBLE LAWS. 
/16/  WE CANNOT SAY THAT LOUISIANA'S POLICY PROVIDES A PERFECT OR EVEN
A DESIRABLE SOLUTION OR THE ONE WE WOULD HAVE PROVIDED FOR THE PROBLEM
OF THE PROPERTY RIGHTS OF ILLEGITIMATE CHILDREN.  /17/  NEITHER CAN WE
SAY THAT LOUISIANA DOES NOT HAVE THE POWER TO MAKE LAWS FOR
DISTRIBUTION OF PROPERTY LEFT WITHIN THE STATE. 

WE EMPHASIZE THAT THIS IS NOT A CASE, LIKE LEVY, WHERE THE STATE HAS
CREATED AN INSURMOUNTABLE BARRIER TO THIS ILLEGITIMATE CHILD.  THERE IS
NOT THE SLIGHTEST SUGGESTION IN THIS CASE THAT LOUISIANA HAS BARRED
THIS ILLEGITIMATE DAUGHTER HAD HE BOTHERED TO FOLLOW THE SIMPLE
FORMALITIES OF EXECUTING A WILL.  HE COULD, OF COURSE, HAVE LEGITIMATED
THE CHILD BY MARRYING HER MOTHER IN WHICH CASE THE CHILD COULD HAVE
INHERITED HIS PROPERTY EITHER BY INTESTATE SUCCESSION OR BY WILL AS ANY
OTHER LEGITIMATE CHILD.  FINALLY, HE COULD HAVE AWARDED HIS CHILD THE
BENEFIT OF LOUISIANA'S INTESTATE SUCCESSION STATUTE ON THE SAME TERMS
AS LEGITIMATE CHILDREN SIMPLY BY STATING IN HIS ACKNOWLEDGMENT OF
PATERNITY HIS DESIRE TO LEGITIMATE THE LITTLE GIRL.  SEE BERGERON V.
MILLER; 230 SO.2D 417 (LA. APP. 1970). 

IN SHORT, WE CONCLUDE THAT IN THE CIRCUMSTANCES PRESENTED IN THIS
CASE, THERE IS NOTHING IN THE VAGUE GENERALITIES OF THE EQUAL
PROTECTION AND DUE PROCESS CLAUSES WHICH EMPOWERS THIS COURT TO NULLIFY
THE DELIBERATE CHOICES OF THE ELECTED REPRESENTATIVES OF THE PEOPLE OF
LOUISIANA. 

              AFFIRMED. 

/1/  SEE APP. 8. 

/2/  LA. CIV. CODE ANN., ART. 240, PROVIDES:  "FATHERS AND MOTHERS
OWE ALIMONY TO THEIR ILLEGITIMATE CHILDREN, WHEN THEY ARE IN NEED . . .
. "  ART. 241 PROVIDES:  "ILLEGITIMATE CHILDREN HAVE A RIGHT TO CLAIM
THIS ALIMONY, NOT ONLY FROM THEIR FATHER AND MOTHER, BUT EVEN FROM
THEIR HEIRS AFTER THEIR DEATH." 

/3/  RITA VINCENT QUALIFIES AS EZRA VINCENT'S CHILD FOR FEDERAL
SOCIAL SECURITY AND VETERAN'S BENEFITS BY VIRTUE OF HIS ACKNOWLEDGMENT
OF PATERNITY, 42 U.S.C. 416(H)(3)(A)(I)(I) (1964 ED., SUPP. V) AND 38
U.S.C. 101(4) (1964 ED., SUPP. V).  NO QUESTION HAS BEEN RAISED
CONCERNING THE LEGALITY UNDER FEDERAL LAW OF RELIANCE UPON SUCH
BENEFITS TO RELIEVE PARENTS OR THEIR ESTATE FROM THE STATE-IMPOSED
OBLIGATIONS OF CHILD SUPPORT. 

/4/  LA. CIV. CODE ANN., ART. 2315 (1952). 

/5/  IBID. 

/6/  NOR IS GLONA V. AMERICAN GUARANTEE & LIABILITY INSURANCE CO.,
391 U.S. 73 (1968), ANALOGOUS TO THIS CASE.  IN GLONA THE MAJORITY
RELIED ON LOUISIANA'S "CURIOUS COURSE" OF SANCTIONS AGAINST
ILLEGITIMACY TO DEMONSTRATE THAT THERE WAS NO "RATIONAL BASIS" FOR
PROHIBITING A MOTHER FROM RECOVERING FOR THE WRONGFUL DEATH OF HER
SON.  ID., AT 74-75.  EVEN IF WE WERE TO APPLY THE "RATIONAL BASIS"
TEST TO THE LOUISIANA INTESTATE SUCCESSION STATUTE, THAT STATUTE
CLEARLY HAS A RATIONAL BASIS IN VIEW OF LOUISIANA'S INTEREST IN
PROMOTING FAMILY LIFE AND OF DIRECTING THE DISPOSITION OF PROPERTY LEFT
WITHIN THE STATE. 

/7/  LA. CIV. CODE ANN., ARTS. 90-98 (1952). 

/8/  LA. CIV. CODE ANN., ARTS. 119, 120 (1952). 

/9/  "FATHERS AND MOTHERS, BY THE VERY ACT OF MARRYING, CONTRACT
TOGETHER THE OBLIGATION OF SUPPORTING, MAINTAINING, AND EDUCATING THEIR
CHILDREN."  LA. CIV. CODE ANN., ART. 227 (1952).  SEE N. 2, SUPRA. 

/10/  LA. CIV. CODE ANN., ART. 229 (1952). 

/11/  LA. CIV. CODE ANN., ART. 915 (1952). 

/12/  LA. CIV. CODE ANN., ARTS. 1493-1495 (1952). 

/13/  "NATURAL FATHERS AND MOTHERS CAN, IN NO CASE, DISPOSE OF
PROPERTY IN FAVOR OF THEIR ADULTERINE OR INCESTUOUS CHILDREN, UNLESS TO
THE MERE AMOUNT OF WHAT IS NECESSARY TO THEIR SUSTENANCE, OR TO PROCURE
THEM AN OCCUPATION OR PROFESSION BY WHICH TO SUPPORT THEMSELVES."  LA.
CIV. CODE ANN., ART. 1488 (1952).     /14/  LA. CIV. CODE ANN., ART.
1486 (1952). 

/15/  "THOSE WHO HAVE LIVED TOGETHER IN OPEN CONCUBINAGE ARE
RESPECTIVELY INCAPABLE OF MAKING TO EACH OTHER, WHETHER INTER VIVOS OR
MORTIS CAUSA, ANY DONATION OF IMMOVABLES; AND IF THEY MAKE A DONATION
OF MOVABLES, IT CAN NOT EXCEED ONE-TENTH PART OF THE WHOLE VALUE OF
THEIR ESTATE. 

"THOSE WHO AFTERWARDS MARRY ARE EXCEPTED FROM THIS RULE."  LA. CIV.
CODE ANN., ART. 1481 (1952). 

/16/  "NOW THE LAW IN QUESTION IN QUESTION IS NOTHING MORE THAN AN
EXERCISE OF THE POWER WHICH EVERY STATE AND SOVEREIGNTY POSSESSES, OF
REGULATING THE MANNER AND TERM UPON WHICH PROPERTY REAL OR PERSONAL
WITHIN ITS DOMINION MAY BE TRANSMITTED BY LAST WILL AND TESTAMENT, OR
BY INHERITANCE; AND OF PRESCRIBING WHO SHALL AND WHO SHALL NOT BE
CAPABLE OF TAKING IT."  MAGER V. GRIMA, 8 HOW.  490, 493 (1850).  SEE
LYETH V. HOEY, 305 U.S. 188, 193 (1938). 

/17/  SEE KRAUSE, BRINGING THE BASTARD INTO THE GREAT SOCIETY-- A
PROPOSED UNIFORM ACT ON LEGITIMACY, 44 TEX.L.REV.  829 (1966). 

MR. JUSTICE HARLAN, CONCURRING. 

IN JOINING THE OPINION OF THE COURT, I WISH TO ADD A FEW WORDS,
PROMPTED, I MAY SAY, BY THE DISSENTING OPINION, WHICH IN MY VIEW
EVINCES EXTRAVAGANT NOTIONS OF WHAT CONSTITUTES A DENIAL OF "EQUAL
PROTECTION" IN THE CONSTITUTIONAL SENSE. 

IT IS SURELY ENTIRELY REASONABLE FOR LOUISIANA TO PROVIDE THAT A MAN
WHO HAS ENTERED INTO A MARITAL RELATIONSHIP THEREBY UNDERTAKES
OBLIGATIONS TO ANY RESULTING OFFSPRING BEYOND THOSE WHICH HE OWES TO
THE PRODUCTS OF A CASUAL LIAISON, AND THIS WHETHER OR NOT HE ADMITS THE
FACT OF FATHERHOOD IN THE LATTER CASE.  /1/  WITH RESPECT TO A
SUBSTANTIAL PORTION OF MAN'S ESTATE, THESE GREATER OBLIGATIONS STEMMING
FROM MARRIAGE ARE IMPOSED BY THE PROVISION OF LOUISIANA LAW MAKING A
MAN'S LEGITIMATE CHILDREN HIS FORCED HEIRS.  FOR THE REMAINDER OF HIS
ESTATE, THESE OBLIGATIONS ARE NOT ABSOLUTE, BUT ARE CONDITIONAL UPON
HIS NOT DISPOSING OF HIS PROPERTY IN OTHER WAYS.  WITH ALL RESPECT TO
MY DISSENTING BRETHEREN, I DEEM LITTLE SHORT OF FRIVOLOUS THE
CONTENTION THAT THE EQUAL PROTECTIONCLAUSE PROHIBITS ENFORCEMENT OF
MARITAL OBLIGATIONS, IN EITHER THE MANDATORY OR THE SUPPLETIVE FORM. 
SEE H. M. HART & A. SACKS, THE LEGAL PROCESS:  BASIC PROBLEMS IN THE
MAKING AND APPLICATION OF LAW 35-36, 251-256 (TENT.  ED. 1958). 

IN ADDITION TO IMPOSING THESE OBLIGATIONS, LOUISIANA LAW PROHIBITS
TESTAMENTARY DISPOSITIONS TO ONE'S ILLEGITIMATE CHILDREN.  EVEN WERE MY
DISSENTING BRETHREN PREPARED TO HOLD THIS RULE OF LAW UNCONSTITUTIONAL,
TO DO SO WOULD NOT AFFECT THE OUTCOME OF THIS CASE.  FIRST, APPELLANT'S
CHILD IS "NATURAL" RATHER THAN "ILLEGITIMATE"; AND SECOND, IF THE
FATHER DESIRED HER TO HAVE HIS PROPERTY AFTER HIS DEATH, HE DID NOT
MANIFEST THAT DESIRE IN THE APPROPRIATE WAY. 

/1/  LOUISIANA LAW AUTHORIZES ILLEGITIMATE CHILDREN TO CLAIM SUPPORT
NOT ONLY FROM BOTH PARENTS BUT ALSO FROM THE PARENTS' HEIRS.  SEE ANTE,
AT 534 N. 2.  IT THUS GOES CONSIDERABLY BEYOND THE COMMON LAW AND
STATUTES GENERALLY IN FORCE AT THE TIME THE FOURTEENTH AMENDMENT WAS
ADOPTED.  THESE RARELY DID MORE THAN AUTHORIZE PUBLIC OFFICIALS TO
BRING AN ACTION DIRECTING THE PUTATIVE FATHER TO SUPPORT A CHILD WHO
THREATENED TO BECOME A PUBLIC CHARGE.  SEE 2 KENT'S COMMENTARIES *215
AND NN. (B) AND (C) (12TH ED. O. W. HOLMES 1873). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
WHITE, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

IN MY VIEW, LOUISIANA'S INTESTATE SUCCESSION LAWS, INSOFAR AS THEY
TREAT ILLEGITIMATE CHILDREN WHOSE FATHERS HAVE PUBLICLY ACKNOWLEDGED
THEM DIFFERENTLY FROM LEGITIMATE CHILDREN, PLAINLY VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THE COURT TODAY
EFFECTIVELY CONCEDES THIS, AND, TO REACH ITS RESULT, RESORTS TO THE
STARTLING MEASURE OF SIMPLY EXCLUDING SUCH ILLEGITIMATE CHILDREN FROM
THE PROTECTION OF THE CLAUSE, IN ORDER TO UPHOLD THE UNTENABLE AND
DISCREDITED MORAL PREJUDICE OF BYGONE CENTURIES WHICH VINDICTIVELY
PUNISHED NOT ONLY THE ILLEGITIMATES' PARENTS, BUT ALSO THE HAPLESS, AND
INNOCENT, CHILDREN.  BASED UPON SUCH A PREMISE, TODAY'S DECISION CANNOT
EVEN PRETEND TO BE A PRINCIPLED DECISION.  THIS IS SURPRISING FROM
JUSTICES WHO HAVE HERETOFORE SO VIGOROUSLY DECIRED DECISIONMAKING
RESTED UPON PERSONAL PREDILECTIONS, TO BORROW THE COURT'S WORDS, OF
"LIFE-TENURED JUDGES OF THIS COURT."  ANTE, AT 539.  I RESPECTFULLY
DISSENT. 

        I 

IN 1961, EZRA VINCENT WAS 69 YEARS OLD AND LOU BERTHA PATTERSON (NOW
LOU BERTHA LABINE) WAS 41.  THEY WERE UNMARRIED ADULTS LIVING IN RURAL,
SOUTHWEST LOUISIANA, OUTSIDE THE TOWN OF LAKE CHARLES.  SOON AFTER
MEETING EACH OTHER IN 1961, MRS. PATTERSON MOVED IN WITH MR. VINCENT. 
ALTHOUGH THEY DID NOT MARRY, MRS. PATTERSON HAD A DAUGHTER BY MR.
VINCENT ON MARCH 15, 1962.  THE CHILD'S BIRTH CERTIFICATE IDENTIFIED
THE FATHER AND MOTHER BY NAME.  WITHIN TWO MONTHS, MR. VINCENT AND MRS.
PATTERSON APPEARED BEFORE A NOTARY PUBLIC AND EXECUTED A FORM, IN
ACCORDANCE WITH LOUISIANA LAW, ACKNOWLEDGING THAT MR. VINCENT WAS THE
FATHER OF THE CHILD.  A MONTH LATER, THE CHILD'S BIRTH CERTIFICATE WAS
CHANGED TO GIVE THE CHILD MR. VINCENT'S NAME, /1/ AND SHE HAS ALWAYS
BEEN KNOWN SINCE AS RITA NELL VINCENT.  BY ACKNOWLEDGING THE CHILD, MR.
VINCENT BECAME LEGALLY OBLIGATED UNDER STATE LAW TO SUPPORT HER.  /2/
MR. VINCENT AND MRS. PATTERSON CONTINUED TO LIVE TOGETHER AND RAISE
RITA NELL UNTIL MR. VINCENT DIED IN 1968.  HE LEFT NO WILL. 

AS NATURAL TUTRIX OF MR. VINCENT'S ONLY CHILD, RITA NELL'S MOTHER
BROUGHT THIS SUIT ON THE CHILD'S BEHALF SEEKING TO HAVE RITA NELL
DECLARED MR. VINCENT'S SOLE HEIR.  APPLYING LOUISIANA LAW, /3/  THE
TRIAL COURT DISMISSED THE ACTION AND DECLARED MR. VINCENT'S COLLATERAL
RELATIONS-- HIS BROTHERS AND SISTERS-- TO BE HIS HEIRS.  /4/  THE
CHILD'S TUTRIX APPEALED, ARGUING THAT TO TREAT A PUBLICLY ACKNOWLEDGED
ILLEGITIMATE CHILD DIFFERENTLY FROM A LEGITIMATE CHILD WAS A DENIAL OF
EQUAL PROTECTION AND DUE PROCESS.  THE LOUISIANA INTERMEDIATE APPELLATE
COURT AFFIRMED IN ALL RESPECTS, UPHOLDING THE STATE STATUTORY
PROVISIONS AGAINST CONSTITUTIONAL ATTACK, "(HOWEVER UNFAIR IT MAY BE TO
PUNISH INNOCENT CHILDREN FOR THE FAULT OF THEIR PARENTS."  229 SO.2D
449, 452 (1969).  THE LOUISIANA SUPREME COURT DECLINED REVIEW, AND WE
NOTED PROBABLE JURISDICTION.  400 U.S. 817 (1970). 

     II 

THE RATIONALITY AND CONSTITUTIONALITY OF LOUISIANA'S TREATMENT OF
THE ILLEGITIMATE CHILD CAN ONLY BE ANALYZED AGAINST THE BACKGROUND OF A
PROPER UNDERSTANDING OF THAT STATE'S LAW.  UNDER LOUISIANA LAW,
LEGITIMATE CHILDREN HAVE AN AUTOMATIC RIGHT TO INHERIT FROM THEIR
PARENTS.  /5/  LEGITIMATE CHILDREN GENERALLY CANNOT BE DISINHERITED. 
/6/  PROPERTY CANNOT EVEN BE GIVEN AWAY WITHOUT TAKING ACCOUNT OF THE
RIGHTS OF A LEGITIMATE CHILD, SINCE THE PORTION OF THE DECEDENT'S
ESTATE THAT CAN BE GIVEN AWAY OR DISPOSED OF THROUGH DONATIONS INTER
VIVOS OR MORTIS CAUSA IS SHARPLY LIMITED BY LAW FOR THE BENEFIT OF A
PERSON'S LEGITIMATE CHILDREN.  /7/  ACTUALLY THE LOUISIANA CONSTITUTION
PROTECTS THIS SCHEME OF FORCED HEIRSHIP WHICH BENEFITS THE DECEDENT'S
PARENTS AS WELL AS HIS LEGITIMATE CHILDREN.  /8/ 

THIS ENSHRINEMENT OF FORCED HEIRSHIP IN THE STATE CONSTITUTION
SYMBOLIZES LOUISIANA'S EXTENSIVE LEGAL ORDERING OF FAMILIAL AFFAIRS. 
LOUISIANA'S REGULATION OF THE FAMILY COVERS NOT MERELY THE DEVOLUTION
OF PROPERTY UPON THE DEATH OF ANY MEMBER, BUT VIRTUALLY EVERY ASPECT OF
THE DUTIES OWED BY ONE FAMILY MEMBER TO ANOTHER, AND THE AUTHORITY,
PARTICULARLY OF THE FATHER, OVER THE OTHER MEMBERS.  /9/  THIS REFLECTS
THE DERIVATION OF LOUISIANA'S LEGAL TRADITIONS FROM THE FRENCH,
SPANISH, AND ROMAN CIVIL LAW; THEY DO NOT HAVE THEIR ROOTS IN ENGLISH
COMMON LAW: 

     "COUNTRIES WHICH RECEIVED THE ROMAN LAW IN ONE FORM OR ANOTHER

  HAVE TRADITIONALLY ORDERED RELATIONSHIPS BETWEEN CITIZENS IN

  TERMS OF TWO INSTITUTIONS, FAMILY AND OBLIGATION . . . . (THE

  RELATIONSHIPS FORMED BY ROMANIST MAN WERE ALL GROUNDED IN ONE OR

  BOTH OF THESE INSTITUTIONS.  HIS RELATIONSHIP WITH HIS FAMILY WAS

  DETERMINED BY LAW, IT ESTABLISHED HIS STATUS, AND THIS, IN TURN,

  QUALIFIED THE RELATIONSHIPS WHICH HE COULD MAKE WITH THOSE WHO

WERE NOT HIS FAMILY . . . . (A) MAN'S POSITION WITHIN HIS FAJILY

  PASSED INTO THE MODERN ROMAN LAW AS THE SIGNIFICANT QUALIFICATION

  TO FORMING PRIVATE LEGAL RELATIONSHIPS."  TUCKER, SOURCES OF

  LOUISIANA'S LAW OF PERSONS:  BLACKSTONE, DOMAT, AND THE FRENCH

  CODES, 44 TUL.  L. REV. 264, 275-276 (1970).  /10/ 

THUS IT IS THAT LOUISIANA LAW DISTINGUISHES BETWEEN LEGITIMATE
CHILDREN AND ILLEGITIMATE CHILDREN THROUGHOUT THAT LAW'S EXTENSIVE
REGULATION OF FAMILY AFFAIRS.  /11/  BUT, FOR PURPOSES OF THIS CASE, I
NEED ONLY DISCUSS THOSE PORTIONS OF LOUISIANA LAW THAT BEAR UPON
INHERITANCE RIGHTS.  ARTICLE 178 OF THE LOUISIANA CIVIL CODE PROVIDES
IN FULL:  "CHILDREN ARE EITHER LEGITIMATE, ILLEGITIMATE, OR
LEGITIMATED."  NOT ALL ILLEGITIMATE CHILDREN CAN BE LEGITIMATED,
HOWEVER-- ONLY THOSE WHOSE PARENTS DO NOT HAVE LEGITIMATE DESCENDATS OR
ASCENDANTS AND COULD LAWFULLY HAVE MARRIED EACH OTHER AT THE TIME OF
THE CHILD'S CONCEPTION, OR THOSE WHOSE PAREN?S LATER MARRY CAN BE
LEGITIMATED.  /12/  AN ILLEGITIMATE CHILD WHO CAN BE LEGITIMATED
BECOMES A "NATURAL" CHILD WHEN HIS FATHER FORMALLY ACKNOWLEDGES HIM. 
HOWEVER, ARTICLE 206 OF THE LOUISIANA CIVIL CODE PROVIDES THAT,
"(ILLEGITIMATE CHILDREN, THOUGH DULY ACKNOWLEDGED, CAN NOT CLAIM THE
RIGHTS OF LEGITIMATE CHILDREN."  THUS, THE PRIMARY CONSEQUENCE UNDER
LOUISIANA SUCCESSION LAW THAT FLOWS FROM ACKNOWLEDGMENT IS THAT THE
NATURAL CHILD MAY INHERIT UNDER A WILL, AD INHERITS IF THERE IS NO
WILL, ONLY AFTER THE FATHER'S OTHER DESCENDANTS, ASCENDANTS, COLLATERAL
RELATIONS, AND SURVIVING SPOUSE, BUT BEFORE THE ESTATE ESCHEATS TO THE
STATE.  /13/  AN ILLEGITIMATE CHILD WHOSE PARENTS COULD LAWFULLY HAVE
MARRIED EACH OTHER AT THE TIME OF THE CHILD'S CONCEPTION, BUT WHO HAS
NOT BEEN PUBLICLY ACKNOWLEDGED, OR AN ILLEGITIMATE WHOSE PARENTS WERE
NOT CAPABLE OF MARRIAGE AT THE TIME OF CONCEPTION, MAY NO? INHERIT AT
ALL, EITHER BY WILL OR INTESTATE SUCCESSION, "THE LAW ALLOWING THEM
NOTHING MORE THAN A MERE ALIMONY."  LA. CIV. CODE ANN., ART. 920
(1952).  /14/

        III 

UNDER LOUISIANA LAW A LEGITIMATE CHILD WOULD HAVE HAD AN ABSOLUTE
RIGHT TO INHERIT MR. VINCENT'S ESTATE; MR. VINCENT COULD NOT HAVE
TOTALLY DISINHERITED SUCH A CHILD.  THIS IS A CONSEQUENCE OF
LOUISIANA'S "FORCED HEIRSHIP" LAW, IN OTHER WORDS A CONSEQUENCE OF A
STATE DECISION, HOWEVER CONTRARYTHAT MIGHT BE TO MR. VINCENT'S OWN
DESIRES.  SIMILARLY IN THE PRESENT CASE, MR. VINCENT'S ILLEGITIMATE
DAUGHER, THOUGH DULY ACKNOWLEDGED, IS DENIED HIS INTESTATE ESTATE, NOT
BECAUSE HE WISHED THAT RESULT BUT BECAUSE THE STATE PLACES HER BEHIND
MR. VINCENT'S COLLATERAL RELATIONS-- INDEED BEHIND ALL HIS RELATIONS--
IN THE LINE OF SUCCESSION. 

THE STATE'S DISCRIMINATION IS CLEAR AND OBVIOUS.  /15/  ORDINARILY,
EVEN IN CASES OF ECONOMIC REGULATION, THIS COURT WILL INQUIRE, UNDER
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, WHETHER THERE
IS SOME "REASONABLE BASIS" FOR A DISCRIMINATION IN A STATE STATUTE, OR
WHETHER THE DISCRIMINATION IS INVIDIOUS.  E.G., MOREY V. DOUD, 354 U.S.
457 (1957); WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483 (1955); YICK
WO. V. HOPKINS, 118 U.S. 356 (1886).  SUCH AN INQUIRY DOES NOT QUESTION
THE STATE'S POWER TO REGULATE; RAHTER, IT FOCUSES EXCLUSIVELY ON
WHETHER THE STATE HAS LEGISLATED WITHOUT THE INVIDIOUS DISCRIMINATION
THAT IS FORBIDDEN BY THE FOURTEENTH AMENDMENT. 

FOR REASONS NOT ARTICULATED, THE COURT REFUSES TO CONSIDER IN THIS
CASE WHETHER THERE IS ANY REASON AT ALL, OR ANY BASIS WHATEVER, FOR THE
DIFFERENCE IN TREATMENT THAT LOUISIANA ACCORDS TO PUBLICLY ACKNOWLEDGED
ILLEGITIMATES AND TO LEGITIMATE CHILDREN.  RATHER, THE COURT SIMPLY
ASSERTS THAT "THE POWER TO MAKE RULES TO ESTABLISH, PROTECT, AND
STRENGTHEN FAMILY LIFE AS WELL AS TO REGULATE THE DISPOSITION OF
PROPERTY LEFT IN LOUISIANA BY A MAN DYING THERE IS COMMITTED BY THE
CONSTITUTION OF THE UNITED STATES AND THE PEOPLE OF LOUISIANA TO THE
LEGISLATURE OF THAT STATE."  ANTE, AT 538.  BUT NO ONE QUESTIONS
LOUISIANA'S POWER TO PASS INHERITANCE LAWS.  /16/  SURELY THE COURT
CANNOT BE SAYING THAT THE FOURTEENTH AMENDMENT'S EQUAL PROTECTION
CLAUSE IS INAPPLICABLE TO SUBJECTS REGULABLE BY THE STATES-- THAT
EXTRAORDINARY PROPOSITION WOULD REVERSE A CENTURY OF CONSTITUTIONAL
ADJUDICATION UNDER THE EQUAL PROTECTION AND DUE PROCESS CLAUSES.  IT IS
PRECISELY STATE ACTION WHICH IS SUBJECTED BY THE FOURTEENTH AMENDMENT
TO ITS RESTRAINTS.  IT IS, TO SAY THE LEAST, BEWILDERING THAT A COURT
THAT FOR DECADES HAS WRESTLED WITH THE NUANCES OF THE CONCEPT OF "STATE
ACTION" IN ORDER TO ASCERTAIN THE REACH OF THE FOURTEENTH AMENDMENT, IN
THIS CASE HOLDS THAT THE STATE ACTION HERE, BECAUSE IT IS STATE ACTION,
IS INSULATED FROM THESE RESTRAINTS. 

PUTTING ASIDE THE COURT'S REPEATED EMPHASIS ON LOUISIANA'S POWER TO
REGULATE INTESTATE SUCCESSION-- SOMETHING NOT QUESTIONED AND WHOLLY
IRRELEVANT TO THE PRESENT CONSTITUTIONAL ISSUE-- ONLY TWO PASSAGES IN
THE COURT'S OPINION EVEN ATTEMPT AN ARGUMENT IN SUPPORT OF TODAY'S
RESULT.  FIRST, THE COURT TELLS US THAT LOUISIANA INTESTATE SUCCESSION
LAW FAVORS SOME CLASSES OF A DECEASED'S RELATIVES OVER OTHER CLASSES. 
THAT IS CERTAINLY TRUE, BUT THE COURT NOWHERE SUGGESTS WHAT BEARING
THESE OTHER DISCRIMINATIONS HAVE ON THE RATIONALITY OF LOUISIANA'S
DISCRIMINATION AGAINST THE ACKNOWLEDGED ILLEGITIMATE.  IT IS A LITTLE
LIKE ANSWERING A COMPLAINT OF NEGRO SCHOOL CHILDREN AGAINST SEPARATE
LAVATORIES FOR NEGRO AND WHITE STUDENTS BY ARGUING THAT THE SITUATION
IS NO DIFFERENT FROM SEPARATE LAVATORIES FOR BOYS AND GIRLS, OR FOR
ELEMENTARY SCHOOL CHILDREN AND HIGH SCHOOL STUDENTS.  THESE OTHER
DISCRIMINATIONS MAY BE RATIONAL OR IRRATIONAL.  BUT THEIR ONLY
RELEVANCE TO THE RATIONALITY AND CONSTITUTIONALITY OF THE SPECIFIC
CHALLENGED DISCRIMINATION IS THE LIGHT THEY THROW, IF ANY, ON THE BASIS
FOR THAT DISCRIMINATION.  THE CONCLUSION THE COURT APPEARS TO DRAW FROM
ITS ITEMIZATION OF OTHER DISCRIMINATIONS AMONG A DECEASED'S RELATIVES
IS THAT LOUISIANA NEEDS NO JUSTIFICATION AT ALL FOR ANY OF THE
DISTINCTIONS IT DRAWS.  THAT REASONING FLIES IN THE FACE NOT ONLY OF
THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH
AMENDMENT, BUT ALSO OF THE VERY NOTION OF A RULE OF LAW.     THE ONLY
OTHER HINT AT AN ATTEMPT TO SUPPORT TODAY'S RESULT MAY APPEAR IN THE
PURPORTED DISTINCTION OF LEVY V. LOUISIANA, 391 U.S. 68 (1968):  "WE
EMPHASIZE THAT THIS IS NOT A CASE, LIKE LEVY, WHERE THE STATE HAS
CREATED AN INSURMOUNTABLE BARRIER TO THIS ILLEGITIMATE CHILD."  ANTE,
AT 539.  THERE MAY BE TWO IMPLICATIONS IN THIS STATEMENT:  (1) THAT IN
LEVY, THERE WAS AN INSURMOUNTABLE BARRIER TO RECOVERY; AND (2) THAT ANY
DISCRIMINATION THAT FALLS SHORT OF AN "INSURMOUNTABLE BARRIER" IS,
WITHOUT NEED FOR FURTHER ANALYSIS, PERMISSIBLE.  AS TO THE FIRST, LEVY
INVOLVED AN UNACKNOWLEDGED ILLEGITIMATE CHILD.  LOUISIANA PERMITTED AN
ILLEGITIMATE CHILD TO RECOVER IN TORT FOR THE DEATH OF THE CHILD'S
MOTHER, UNDER THE STATE'S WRONGFUL DEATH ACT, ONLY IF THE ILLEGITIMATE
CHILD HAD BEEN ACKNOWLEDGED.  THERE WAS NO INSURMOUNTABLE BARRIER TO
THE CHILD'S RECOVERY; IF THE MOTHER HAD FORMALLY ACKNOWLEDGED THE
CHILD, RECOVERY WOULD HAVE BEEN PERMITTED.  MY BROTHER HARLAN'S DISSENT
EMPHASIZED THIS FACT AND ARGUED THAT THE STATE WAS ENTITLED TO RELY ON
SPECIFIED FORMALITIES.  PLAINLY THEN LEVY DID NOT INVOLVE ANY
"INSURMOUNTABLE BARRIER." 

THE COURT'S SECOND IMPLICATION-- THAT ANY DISCRIMINATION SHORT OF AN
"UNSURMOUNTABLE BARRIER" IS PERMISSIBLE-- IS ONE OF THOSE PROPOSITIONS
THE MERE STATEMENT OF WHICH IS ITS OWN REFUTATION.  LEVY, AS I HAVE
POINTED OUT, HOLDS SQUARELY TO THE CONTRARY SPECIFICALLY IN THE CONTEXT
OF DISCRIMINATION AGAINST ILLEGITIMATE CHILDREN.  AND NUMEROUS OTHER
CASES IN THIS COURT ESTABLISH THE GENERAL PROPOSITION THAT
DISCRIMINATIONS THAT "MERELY" DISADVANTAGE A CLASS OF PERSONS OR
BUSINESSES ARE AS SUBJECT TO THE COMMAND OF THE FOURTEENTH AMENDMENT AS
DISCRIMINATIONS THAT ARE IN SOME SENSE MORE ABSOLUTE.  /17/ 

IN SHORT, THE COURT HAS NOT ANALYZED, OR PERHAPS SIMPLY REFUSES TO
ANALYZE, LOUISIANA'S DISCRIMINATION AGAINST ACKNOWLEDGED ILLEGITIMATES
IN TERMS OF THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT.  /18/  SINCE
I STILL BELIEVE THAT THE CONSTITUTION DOES PROHIBIT A STATE FROM
DENYING ANY PERSON THE "EQUAL PROTECTION OF THE LAWS," I MUST THEREFORE
UNDERTAKE MY OWN ANALYSIS TO DETERMINE, AT A MINIMUM, WHETHER THERE IS
ANY RATIONAL BASIS FOR THE DISCRIMINATION, OR WHETHER THE
CLASSIFICATION BEARS ANY INTELLIGIBLE PROPER RELATIONSHIP TO THE
CONSEQUENCES THAT FLOW FROM IT.  /19/  SEE, E.G., DUNDRIDGE V.
WILLIAMS, 397 U.S. 471 (1970); MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 190
191 (1964); MOREY V. DOUD, SUPRA; GULF, C. & S.F.R. CO. V. ELLIS, 165
U.S. 150, 155 (1897). 

CERTAINLY, THERE IS NO BIOLOGICAL BASIS FOR THE STATE'S
DISTINCTION.  MR. VINCENT'S ILLEGITIMATE DAUGHTER IS RELATED TO HIM
BIOLOGICALLY IN EXACTLY THE SAME WAY AS A LEGITIMATE CHILD WOULD HAVE
BEEN.  IN DEED, IT IS THE IDENTITY OF INTEREST "IN THE BIOLOGICAL AND
IN THE SPIRITUAL SENSE," LEVY V. LOUISIANA, 391 U.S.,AT 72, AND THE
IDENTICAL "INTIMATE, FAMILIAL RELATIONSHIP," ID., AT 71, BETWEEN BOTH
THE LEGITIMATE AND ILLEGITIMATE CHILD, AND THEIR FATHER, WHICH IS THE
VERY BASIS FOR APPELLANT'S CONTENTION THAT THE TWO MUST BE TREATED
ALIKE. 

LOUISIANA MIGHT BE THOUGHT TO HAVE AN INTEREST IN REQUIRING PEOPLE
TO GO THROUGH CERTAIN FORMALITIES IN ORDER TO ELIMINATE COMPLICATED
QUESTIONS OF PROOF AND THE OPPORTUNITY FOR BOTH ERROR AND FRAUD IN
DETERMINING PATERNITY AFTER THE DEATH OF THE FATHER.  THIS ARGUMENT, OF
COURSE, WAS THE FOCAL POINT OF THE DISSENT IN LEVY AND GLONA V.
AMERICAN GUARANTEE & LIABILITY INSURANCE CO., 391 U.S. 73 (1968).  I
LEAVE ASIDE, FOR THE MOMENT, THE FACT THAT THE HOLDINGS OF THOSE TWO
CASES INDICATE THAT THIS CONSIDERATION IS INSUFFICIENT TO JUSTIFY A
DIFFERENCE IN TREATMENT WHEN THERE IS NO DISPUTE OVER THE FACT OF
PARENTAGE.  FOR MY BROTHER HARLAN'S DISSENTING OPINION IN THOSE CASES
EXPLICITLY RECOGNIZED THAT THE STATE'S INTEREST IN THIS REGARD IS FULLY
SATISFIED BY A FORMAL PUBLIC ACKNOWLEDGMENT.  391 U.S.,AT 80.  WHEN A
FATHER HAS FORMALLY ACKNOWLEDGED HIS CHILD OR GONE THROUGH ANY STATE
AUTHORIZED FORMALITY FOR DECLARING PATERNITY, OR WHEN THERE HAS BEEN A
COURT JUDGMENT OF PATERNITY, THERE IS NO POSSIBLE DIFFICULTY OF PROOF,
AND NO OPPORTUNITY FOR FRAUD OR ERROR.  THIS PURPORTED INTEREST
CERTAINLY CAN OFFER NO JUSTIFICATION FOR DISTINGUISHING BETWEEN A
FORMALLY ACKNOWLEDGED ILLEGITIMATE CHILD AND A LEGITIMATE ONE. 

IT IS ALSO IMPORTANT NOT TO OBSCURE THE FACT THAT THE FORMALITY OF
MARRIAGE PRIMARILY SIGNIFIES A RELATIONSHIP BETWEEN HUSBAND AND WIFE,
NOT BETWEEN PARENT AND CHILD.  ANALYSIS OF THE RATIONALITY OF ANY STATE
EFFORT TO IMPOSE OBLIGATIONS BASED UPON THE FACT OF MARRIAGE MUST,
THEREFORE, DISTINGUISH BETWEEN THOSE OBLIGATIONS THAT RUN BETWEEN
PARTIES TO THE MARRIAGE AND THOSE THAT RUN TO OTHERS.  MY BROTHER
HARLAN, UNLIKE HIS COLLEAGUES IN THE MAJORITY, CONCEDES THAT THE EQUAL
PROTECTION CLAUSE REQUIRES A JUSTIFICATION FOR LOUISIANA'S
DISCRIMINATION AGAINST ILLEGITIMATES, AND HE ATTEMPTS ONE; HE ARGUES
THAT IT IS REASONABLE FOR A STATE TO IMPOSE GREATER OBLIGATIONS ON A
MAN IN RESPECT TO HIS WIFE AND THEIR CHILDREN THAN IN RESPECT TO OTHER
WOMEN AND ANY OTHER CHILDREN OF WHOM HE MAY BE THE FATHER.  IN OTHER
WORDS, CONTRARY TO THE LOUISIANA COURT BELOW, HE APPARENTLY BELIEVES
THAT LOUISIANA'S DISCRIMINATION AGAINST ILLEGITIMATES REFLECTS A STATE
POLICY THAT WOULD DISCOURAGE MARRIAGE BY IMPOSING SPECIAL BURDENS, SUCH
AS THOSE OF FORCED HEIRSHIP, UPON THOSE WHO ENTER INTO IT.  HOWEVER
THAT MAY BE, SUCH FORCE AS HIS ARGUMENT MAY HAVE STEMS DIRECTLY FROM
ITS LACK OF SPECIFICITY.  IMPOSITION BY A STATE OF RECIPROCAL
OBLIGATIONS UPON HUSBAND AND WIFE THAT ARE NOT IMPOSED UPON THOSE WHO
DO NOT ENTER INTO A FORMALIZED MARRIAGE RELATIONSHIP IS BASED UPON THE
ASSUMPTIONS (1) THAT MARRIAGE MAY BE PROMOTED THROUGH PRESSURE APPLIED
ON OR BY THE PARTY SEEKING THE BENEFIT OF OBLIGATIONS IMPOSED BY THE
MARRIED STATUS, AND (2) THAT IN ANY EVENT THE CHOICE IS ENTIRELY WITHIN
THE CONTROL OF THE TWO INDIVIDUALS CONCERNED.  THESE ELEMENTS ARE
ENTIRELY LACKING WHEN WE CONSIDER THE RELATIONSHIP OF A CHILD VIS-A-VIS
ITS PARENTS.  PRECISELY THIS POINT WAS MADE APPROVINGLY BY CHANCELLOR
KENT, RELIED UPON BY MY BROTHER HARLAN, EARLY IN THE 19TH CENTURY: 

"THIS RELAXATION IN THE LAWS OF SO MANY OF THE STATES, OF THE

  SEVERITY OF THE COMMON LAW (DISCRIMINATION AGAINST

 ILLEGITIMATES), RESTS UPON THE PRINCIPLE THAT THE RELATION OF

  PARENT AND CHILD, WHICH EXISTS IN THIS UNHAPPY CASE, IN ALL ITS

  NATIVE AND BINDING FORCE, OUGHT TO PRODUCE THE ORDINARY LEGAL

  CONSEQUENCES OF THAT CONSANGUINITY."  2 J. KENT, COMMENTARIES

  *213 (12TH ED. O. HOLMES 1873 .  /20/ 

INTESTATE SUCCESSION LAWS MIGHT SEEK TO CARRY OUT A GENERAL INTENT
OF PARENTS NOT TO PROVIDE FOR PUBLICLY ACKNOWLEDGED ILLEGITIMATE
CHILDREN.  HOWEVER, AS THE SUMMARY OF LOUISIANA LAW I HAVE MADE SHOWS,
ONE OF THE PRIMARY HALLMARKS OF LOUISIANA'S CIVIL CODE IS ITS DETAILED,
EXTENSIVE REGULATION OF THE FAMILY RELATIONSHIP.  ITS DISCRIMINATION
AGAINST THE ILLEGITIMATE IN MATTERS OF INHERITANCE AND SUCCESSION IS
OFFICIAL STATE POLICY, COMPLETELY NEGATING ANY ARGUMENT THAT SUCH
DISCRIMINATION MERELY REPRESENTS A LEGISLATIVE JUDGMENT ABOUT THE
PROBABLE WISHES OF A DECEASED OR THE DESIRES OF MOST PERSONS IN SIMILAR
SITUATIONS.  THE OPINION OF THE STATE COURT BELOW ITSELF ELIMINATES
THAT POSSIBILITY.  THE LOUISIANA COURT AFFIRMATIVELY STATES THAT THE
DISINHERITANCE OF ACKNOWLEDGED ILLEGITIMATES IS IN FURTHERANCE OF
SPECIFIC STATE POLICY GOALS-- GOALS THAT ARE UNRELATED TO PARENTS'
INTENTIONS.  229 SO.2D, AT 452.  FINALLY, VIEWING THE GENERAL STATUTORY
TREATMENT OF ILLEGITIMATES AS A WHOLE, PARTICULARLY THE FACTS THAT ONLY
A NARROW CLASS OF FATHERS CAN LEGITIMATE THEIR CHILDREN BY DECLARATION,
AND THAT UNACKNOWLEDGED AND "ADULTEROUS" ILLEGITIMATES ARE PROHIBITED
FROM INHERITING EVEN BY WILL, I THINK THE CONCLUSION IS COMPELLED THAT
LOUISIANA'S DISCRIMINATION REPRESENTS STATE POLICY, NOT AN ATTEMPT TO
AID IN THE EFFECTUATION OF PRIVATE DESIRES. 

EVEN IF LOUISIANA LAW COULD BE READ AS BEING BASED ON A LEGISLATIVE
JUDGMENT ABOUT PARENTS' INTENT, THE PRESENT DISCRIMINATION AGAINST
ILLEGITIMATES COULD NOT STAND.  IN ORDER TO JUSTIFY A DISCRIMINATION ON
THE GROUND THAT IT REFLECTS A LEGISLATIVE JUDGMENT ABOUT THE DESIRES OF
MOST PERSONS IN SIMILAR SITUATIONS, THERE MUST BE SOME RATIONAL BASIS
/21/  FOR FINDING THAT THE LEGISLATIVE CLASSIFICATION DOES REFLECT
THOSE PERSONS' DESIRES OR INTENTIONS AS A GENERAL MATTER.  THE COURT
MAKES NO ARGUMENT THAT FATHERS WHO HAVE PUBLICLY ACKNOWLEDGED THEIR
ILLEGITIMATE CHILDREN GENERALLY INTEND TO DISINHERIT THEM.  NO
LOUISIANA COURT OPINION OR LOUISIANA LEGISLATIVE PRONOUNCEMENT THAT I
CAN DISCOVER, OR THE ATTORNEY GENERAL OF LOUISIANA IN THIS CASE, HAS
EVER ARGUED THAT THE LOUISIANA SCHEME REFLECTS THE GENERAL INTENTIONS
OF FATHERS OF ILLEGITIMATE CHILDREN IN THAT STATE.  INDEED, THE STATE
COURT BELOW JUSTIFIED THE DISCRIMINATION ON THE GROUND THAT "THE DENIAL
OF INHERITANCE RIGHTS TO ILLEGITIMATES MIGHT REASONABLY BE VIEWED AS
ENCOURAGING MARRIAGE AND LEGITIMATION OF CHILDREN."  229 SO.2D, AT
452.  SUCH DENIAL COULD ENCOUARGE MARRIAGE ONLY IF FATHERS GENERALLY
DESIRE TO LEAVE THEIR PROPERTY TO THEIR ILLEGITIMATE CHILDREN;
OTHERWISE, DISINHERITANCE WOULD NOT OPERATE AS A SANCTION TO ENCOURAGE
MARRIAGE. 

MOREOVER, LOGIC AND COMMON EXPERIENCE ALSO SUGGEST THAT A FATHER WHO
HAS PUBLICLY ACKNOWLEDGED HIS ILLEGITIMATE CHILD WILL NOT GENERALLY
INTEND TO DISINHERIT HIS CHILD.  A MAN WHO PUBLICLY ANNOUNCES THAT HE
HAS FATHERED A CHILD OUT OF WEDLOCK HAS PUBLICLY CLAIMED THAT CHILD FOR
HIS OWN.  HE HAS RISKED PUBLIC OPPROBRIUM, OR OTHER SANCTIONS, TO MAKE
THE PUBLIC ANNOUNCEMENT.  SURELY, IT DOES NOT FOLLOW THAT HE WILL
GENERALLY DESIRE TO DISINHERIT THAT CHILD AND FURTHER DISCREDIT HIS
REPUTATION BY REFUSING TO CONTRIBUTE TO HIS OWN CHILD AT DEATH.  ALL
THE WRITINGS CITED TO US, INCLUDING A UNITED NATIONS STUDY REPORT, /22/
AN ENGLISH STUDY COMMISSION, /23/  THE PROPOSED UNIFORM PROBATE CODE,
/24/  AND A VARIETY OF LAW REVIEW COMMENTARY IN THIS COUNTRY, /25/
SUGGEST PRECISELY THE OPPOSITE CONCLUSION.  MOREOVER, LOUISIANA IS THE
ONLY STATE IN THE COUNTRY THAT DENIES ILLEGITIMATE CHILDREN RIGHTS OF
INHERITANCE FROM THE MOTHER EQUAL TO THOSE OF LEGITIMATE CHILDREN, /26/
AND ONE OF ONLY FOUR STATES THAT HAVE EXPRESSLY PROVIDED BY STATUTE
THAT THE ILLEGITIMATE CHILD MAY NOT INHERIT FROM HIS FATHER.  /27/  THE
LEGISLATURES OF 20 STATES BY STATUTE ALLOW ACKNOWLEDGED ILLEGITIMATE
CHILDREN TO INHERIT EQUALLY FROM THEIR FATHERS.  /28/  THREE STATES
GRANT EQUAL RIGHTS OF INHERITANCE FROM THE FATHER REGARDLESS OF
ACKNOWLEDGMENT.  /29/  THE LEGISLATURES OF THE OTHER 23 STATES HAVE NOT
PASSED UPON THE QUESTION. 

THE COURT NOWHERE MENTIONS THE CENTRAL REALITY OF THIS CASE:
LOUISIANA PUNISHES ILLEGITIMATE CHILDREN FOR THE MISDEEDS OF THEIR
PARENTS.  THE JUDGES OF THE THIRD CIRCUIT COURT OF APPEAL OF LOUISIANA,
WHOSE JUDGMENT THE COURT HERE REVIEWS, UPHELD THE PRESENT
DISCRIMINATION "(HOWEVER UNFAIR IT MAY BE TO PUNISH INNOCENT CHILDREN
FOR THE FAULT OF THEIR PARENTS . . . "  229 SO.2D, AT 452.  IT IS
CERTAINLY UNUSUAL IN THIS COUNTRY FOR A PERSON TO BE LEGALLY
DISADVANTAGED ON THE BASIS OF FACTORS OVER WHICH HE NEVER HAD ANY
CONTROL.  "DISTINCTIONS BETWEEN CITIZENS SOLELY BECAUSE OF THEIR
ANCESTRY ARE BY THEIR VERY NATURE ODIOUS TO A FREE PEOPLE WHOSE
INSTITUTIONS ARE FOUNDED UPON THE DOCTRINE OF EQUALITY."  HIRABAYASHI
V. UNITED STATES, 320 U.S. 81, 100 (1943).  THE STATE COURT BELOW
EXPLICITLY UPHELD THE STATUTE ON THE GROUND THAT THE PUNISHMENT OF THE
CHILD MIGHT ENCOURAGE THE PARENTS TO MARRY.  /30/  IF THAT IS THE
STATE'S OBJECTIVE, IT CAN OBVIOUSLY BE ATTAINED FAR MORE DIRECTLY BY
FOCUSING ON THE PARENTS WHOSE ACTIONS THE STATE SEEKS TO INFLUENCE. 
GIVEN THE IMPORTANCE AND NATURE OF THE DECISION TO MARRY, CF. BODDIE V.
CONNECTICUT, ANTE, P. 371, I THINK THAT DISINHERITING THE ILLEGITIMATE
CHILD MUST BE HELD TO "BEAR NO INTELLIGIBLE PROPER RELATION TO THE
CONSEQUENCES THAT ARE MADE TO FLOW" FROM THE STATE'S CLASSIFICATION. 
GLONA V. AMERICAN GUARANTEE & LIABILITY INSURANCE CO., 391 U.S.,AT 81
(HARLAN, J., DISSENTING). 

IN MY JUDGMENT, ONLY A MORAL PREJUDICE, PREVALENT IN 1825 WHEN THE
LOUISIANA STATUTES UNDER CONSIDERATION WERE ADOPTED, CAN SUPPORT
LOUISIANA'S DISCRIMINATION AGAINST ILLEGITIMATE CHILDREN.  SINCE I CAN
FIND NO RATIONAL BASIS TO JUSTIFY THE DISTINCTION LOUISIANA CREATES
BETWEEN AN ACKNOWLEDGED ILLEGITIMATE CHILD AND A LEGITIMATE ONE, THAT
DISCRIMINATION IS CLEARLY INVIDIOUS.  /31/  MOREY V. DOUD, 354 U.S. 457
(1957).  I THINK THE SUPREME COURT OF NORTH DAKOTA STATED THE CORRECT
PRINCIPLE IN INVALIDATING AN ANALOGOUS DISCRIMINATION IN THAT STATE'S
INHERITANCE LAWS:  "THIS STATUTE, WHICH PUNISHES INNOCENT CHILDREN FOR
THEIR PARENTS' TRANSGRESSSIONS, HAS NO PLACE IN OUR SYSTEM OF
GOVERNMENT, WHICH HAS AS ONE OF ITS BASIC TENETS EQUAL PROTECTION FOR
ALL."  IN RE ESTATE OF JENSEN, 162 N.W.2D 861, 878 (1968). 

/1/  LOUISIANA LAW APPEARS TO DIRECT THAT THE BIRTH CERTIFICATE BE
CHANGED ONLY WHEN THE CHILD HAS BEEN LEGITIMATED.  LA. REV. STAT. SEC.
40:308 (1950). 

/2/  LA. CIV. CODE ANN., ART. 242 (1952). 

/3/  SEE PART II, INFRA. 

/4/  IN ADDITION, THE TRIAL COURT, DESPITE UNCONTRADICTED TESTIMONY
THAT THE CHILD REQUIRED $192 PER MONTH FOR SUPPORT, REJECTED THE CLAIM
FOR ALIMONY FROM HER FATHER'S ESTATE, AS PROVIDED IN LOUISIANA LAW, LA.
CIV. CODE ANN., ARTS. 240-242, 243, 919 (1952), ON THE GROUND THAT THE
CHILD WAS RECEIVING $100 PER MONTH IN SOCIAL SECURITY AND VETERANS
ADMINISTRATION BENEFITS.     /5/  LA. CIV. CODE ANN., ART. 1495 (1952),
PROVIDES: 

"IN THE CASES PRESCRIBED BY THE TWO LAST PRECEEDING ARTICLES
(LEGITIMATE CHILDREN AND PARENTS), THE HEIRS ARE CALLED FORCED HEIRS,
BECAUSE THE DONOR CAN NOT DEPRIVE THEM OF THE PORTION OF HIS ESTATE
RESERVED FOR THEM BY LAW, EXCEPT IN CASES WHERE HE HAS A JUST CAUSE TO
DISINHERIT THEM." 

/6/  IBID.  A PARENT CAN ONLY DISINHERIT A LEGITIMATE CHILD IF THE
PARENT ALLEGES A CERTAIN STATUTORILY DEFINED "JUST CAUSE" IN HIS WILL
AND IN TERMS EXPRESSES HIS DESIRE TO DISINHERIT THE CHILD.  LA. CIV.
CODE ANN., ARTS. 1617-1620 (1952).  ARTICLE 1621 OF THE LOUISIANA CIVIL
CODE SPECIFIES THE "JUST CAUSES" FOR WHICH DISINHERISON IS PERMITTED: 

"THE JUST CAUSES FOR WHICH PARENTS MAY DISINHERIT THEIR CHILDREN ARE
TEN IN NUMBER, TO WIT: 

"1.  IF THE CHILD HAS RAISED HIS OR HER HAND TO STRIKE THE PARENT,
OR IF HE OR SHE HAS ACTUALLY STRUCK THE PARENT; BUT A MERE THREAT IS
NOT SUFFICIENT. 

"2.  IF THE CHILD HAS BEEN GUILTY, TOWARDS A PARENT, OF CRUELTY, OF
A CRIME OR GRIEVOUS INJURY. 

"3.  IF THE CHILD HAS ATTEMPTED TO TAKE THE LIFE OF EITHER PARENT. 

"4.  IF THE CHILD HAS ACCUSED A PARENT OF ANY CAPITAL CRIME, EXCEPT,
HOWEVER, THAT OF HIGH TREASON. 

"5.  IF THE CHILD HAS REFUSED SUSTENANCE TO A PARENT, HAVING MEANS
TO AFFORD IT. 

"6.  IF THE CHILD HAS NEGLECTED TO TAKE CARE OF A PARENT BECOME
INSANE. 

"7.  IF THE CHILD REFUSED TO RANSON THEM, WHEN DETAINED IN
CAPTIVITY. 

"8.  IF THE CHILD USED ANY ACT OF VIOLENCE OR COERCION TO HINDER A
PARENT FROM MAKING A WILL. 

"9.  IF THE CHILD HAS REFUSED TO BECOME SECURITY FOR A PARENT, HAVING
THE MEANS, IN ORDER TO TAKE HIM OUT OF PRISON. 

"10.  IF THE SON OR DAUGHTER, BEING A MINOR, MARRIES WITHOUT THE
CONSENT OF HIS OR HER PARENTS." 

THE PERSONS SEEKING TO TAKE AGAINST THE DISINHERITED FORCED HEIR
MUST PROVE THE TRUTH OF THE "JUST CAUSE" ALLEGED IN THE PARENT'S WILL. 
PENNYWELL V. GEORGE, 164 LA. 630, 114 SO. 493 (1927).  DISHERISON IS
NOT FAVORED.  SUCCESSION OF REEMS, 134 LA. 1033, 64 SO. 898 (1914). 

/7/  LA. CIV. CODE ANN., ART. 1493 (1952), PROVIDES, IN PERTINENT
PART: 

"DONATIONS INTER VIVOS OR MORTIS CAUSA CAN NOT EXCEED TWO-THIRDS OF
THE PROPERTY OF THE DISPOSER, IF HE LEAVES, AT HIS DECEASE, A
LEGITIMATE CHILD; ONE-HALF, IF HE LEAVES TWO CHILDREN; AND ONE-THIRD,
IF HE LEAVES THREE OR A GREATER NUMBER." 

SEE GENERALLY LA. CIV. CODE ANN., ARTS. 1493-1518 (1952). 

/8/  LA. CONST., ART. 4, SEC. 16 (1921). 

/9/  SEE, E.G., LA. CIV. CODE ANN., ARTS. 215-237 (1952). 

/10/  SEE GENERALLY PELLETIER & SONNENREICH, A COMPARATIVE ANALYSIS
OF CIVIL LAW SUCCESSION, 11 VILL.L.REV.  323 (1966). 

/11/  SEE, E.G., LA. CIV. CODE ANN., ARTS. 215-245 (1952). 

/12/  LA. CIV. CODE ANN., ART. 200 (1952), PROVIDES: 

"A NATURAL FATHER OR MOTHER SHALL HAVE THE POWER TO LEGITIMATE HIS
OR HER NATURAL CHILDREN BY AN ACT PASSED BEFORE A NOTARY AND TWO
WITNESSES, DECLARING THAT IT IS THE INTENTION OF THE PARENT MAKING THE
DECLARATION TO LEGITIMATE SUCH CHILD OR CHILDREN.  BUT ONLY THOSE
NATURAL CHILDREN CAN BE LEGITIMATED WHO ARE THE OFFSPRING OF PARENTS
WHO, AT THE TIME OF CONCEPTION, COULD HAVE CONTRACTED MARRIAGE.  NOR
CAN A PARENT LEGITIMATE HIS OR HER NATURAL OFFSPRING IN THE MANNER
PRESCRIBED IN THIS ARTICLE, WHEN THERE EXISTS ON THE PART OF SUCH
PARENT LEGITIMATE ASCENDANTS OR DESCENDANTS." 

LA. CIV. CODE ANN., ART. 198 (1952), PROVIDES: 

"CHILDREN BORN OUT OF MARRIAGE, EXCEPT THOSE WHO ARE BORN FROM AN
INCESTUOUS CONNECTION, ARE LEGITIMATED BY THE SUBSEQUENT MARRIAGE OF
THEIR FATHER AND MOTHER, WHENEVER THE LATTER HAVE FORMALLY OR
INFORMALLY ACKNOWLEDGED THEM FOR THEIR CHILDREN, EITHER BEFORE OR AFTER
THE MARRIAGE." 

/13/  SEE OPPENHEIM, ACKNOWLEDGMENT AND LEGITIMATION IN LOUISIANA--
LOUISIANA ACT 50 OF 1944, 19 TUL.L.REV.  325, 327 (1945). 

/14/  SEE SUCCESSSION OF ELMORE, 124 LA. 91, 49 SO. 989 (1909). 

/15/  AS PART II OF THIS OPINION MAKES CLEAR, ONLY PARENTS OF
ILLEGITIMATE CHILDREN WHO COULD HAVE MARRIED AT THE TIME OF CONCEPTION
AND WHO HAVE NO LEGITIMATE ASCENDANTS OR DESCENDANTS MAY LEGITIMATE
THOSE CHILDREN BY NOTARIAL ACT.  SEE N. 12, SUPRA.  THE COURT RELIES ON
THE FACT THAT MR. VINCENT WAS WITHIN THIS NARROW CLASS OF FATHERS OF
ILLEGITIMATE CHILDREN TO SUGGEST THAT LOUISIANA LAW ALLOWS FATHERS TO
DECIDE WHETHER OR NOT THEIR ILLEGITIMATE CHILDREN WILL INHERIT THE
FATHER'S ESTATE.  ANTE, AT 539.  EVEN AS TO THIS CLASS, HOWEVER,
LOUISIANA LAW PLACES THE BURDEN ON THE FATHER OF A PUBLICLY
ACKNOWLEDGED ILLEGITIMATE CHILD TO TAKE AFFIRMATIVE ACTION TO INHERIT
THAT CHILD, WHILE VIRTUALLY DISABLING THE SAME FATHER FROM
DISINHERITING A LEGITIMATE CHILD, OR, AT LEAST, PLACING A BURDEN OF
AFFIRMATIVE ACTION ON THE FATHER IN ORDER TO DISINHERIT THE LEGITIMATE
CHILD.  THUS, EVEN AS TO THIS SMALL GROUP, THE DISCRIMINATION IMPOSED
BY THE STATE IS CLEAR. 

/16/  THE ONLY CONTEXT IN WHICH THIS STATEMENT MIGHT HAVE RELEVANCE
WOULD BE IN THE CONTEXT OF THE QUESTION, NOT PRESENTED IN THIS CASE, OF
THE POWER OF CONGRESS TO REGULATE THE DEVOLUTION OF PROPERTY UPON THE
DEATH OF CITIZENS OF THE VARIOUS STATES.  IN SUCH A CASE, THE QUESTION
WOULD INDEED BE WHETHER THE CONSTITUTION COMMITS SUCH POWER EXCLUSIVELY
TO THE STATES.  IT SO HAPPENS THAT THIS COURT, IN AN OPINION WRITTEN BY
MY BROTHER BLACK, HAS HELD THAT THE CONSTITUTION DOES NOT COMMIT THE
POWER TO REGULATE INTESTATE SUCCESSION EXCLUSIVELY TO THE STATES. 
UNITED STATES V. OREGON, 366 U.S. 643, 649 (1961) ("THE FACT THAT THIS
(FEDERAL) LAW PERTAINS TO THE DEVOLUTION OF PROPERTY DOES NOT RENDER IT
INVALID.  ALTHOUGH IT IS TRUE THAT THIS IS AN AREA NORMALLY LEFT TO THE
STATES, IT IS NOT IMMUNE UNDER THE TENTH AMENDMENT FROM LAWS PASSED BY
THE FEDERAL GOVERNMENT WHICH ARE, AS IS THE LAW HERE, NECESSARY AND
PROPER TO THE EXERCISE OF A DELEGATED POWER."). 

/17/  E.G., DANDRIDGE V. WILLIAMS, 397 U.S. 471 (1970); MOREY V.
DOUD, SUPRA; HUNTER V. ERICKSON, 393 U.S. 385 (1969); DOUGLAS V.
CALIFORNIA, 372 U.S. 353 (1963); SMITH V. CAHOON, 283 D.S. 553 (1931). 
CF. PLESSY V. FERGUSON, 163 U.S. 537 (1896); BROWN V. BOARD OF
EDUCATION, 347 U.S. 483 (1954). 

/18/  IN ONE SENTENCE IN A FOOTNOTE, THE COURT SAYS, "EVEN IF WE
WERE TO APPLY THE 'RATIONAL BASIS' TEST TO THE LOUISIANA INTESTATE
SUCCESSION STATUTE, THAT STATUTE CLEARLY HAS A RATIONAL BASIS IN VIEW
OF LOUISIANA'S INTEREST IN PROMOTING FAMILY LIFE AND OF DIRECTING THE
DISPOSITION OF PROPERTY LEFT WITHIN THE STATE."  ANTE, AT 536 N. 6.  I
AGREE THAT LOUISIANA HAS AN INTEREST IN PROMOTING FAMILY LIFE AND IN
DIRECTING THE DISPOSITION OF PROPERTY LEFT WITHIN THE STATE.  I DO NOT
UNDERSTAND HOW EITHER OF THESE INTERESTS PROVIDES ANY BASIS FOR
LOUISIANA'S DISCRIMINATION AGAINST THE ACKNOWLEDGED ILLEGITIMATE, AND
THE COURT DOES NOT EXPLAIN THE RELEVANCE OF THESE STATE INTERESTS. 

/19/  IN VIEW OF MY CONCLUSION THAT THE PRESENT DISCRIMINATION
CANNOT STAND EVEN UNDER THE "SOME RATIONAL BASIS" STANDARD, I NEED NOT
REACH THE QUESTIONS WHETHER ILLEGITIMACY IS A "SUSPECT" CLASSIFICATION
THAT THE STATE COULD NOT ADOPT IN ANY CIRCUMSTANCES WITHOUT SHOWING A
COMPELLING STATE INTEREST, OR WHETHER FUNDAMENTAL RIGHTS ARE INVOLVED,
WHICH ALSO WOULD REQUIRE A SHOWING OF A COMPELLING STATE INTEREST.  SEE
LEVY V. LOUISIANA, 391 U.S. 68, 71 (1968); HARPER V. VIRGINIA BOARD OF
ELECTIONS, 383 U.S. 663 (1966); SKINNER V. OKLAHOMA, 316 U.S. 535
(1942).  THIS COURT HAS GENERALLY TREATED AS SUSPECT A CLASSIFICATION
THAT DISCRIMINATES AGAINST AN INDIVIDUAL ON THE BASIS OF FACTORS OVER
WHICH HE HAS NO CONTROL. 

/20/  THE CONCURRING OPINION SUGGESTS THAT THE LEGAL OBLIGATION TO
SUPPORT THE ILLEGITIMATE CHILD IMPOSED BY LOUISIANA LAW GOES
"CONSIDERABLY BEYOND THE COMMON LAW AND STATUTES GENERALLY IN FORCE AT
THE TIME THE FOURTEENTH AMENDMENT WAS ADOPTED."  ANTE, AT 540 N. THE
AUTHORITY CITED BY THE CONCURRENCE FOR THIS PROPOSITION DESCRIBES EARLY
19TH CENTURY AMERICAN LAW ON THE SUBJECT AS FOLLOWS:  & THE MOTHER, OR
REPUTED FATHER, IS GENERALLY IN THIS COUNTRY CHARGEABLE BY LAW WITH THE
MAINTENANCE OF THE BASTARD CHILD; AND IN NEW YORK IT IS IN SUCH WAY AS
ANY TWO JUSTICES OF THE PEACE OF THE COUNTY SHALL THINK MEET; AND THE
GOODS, CHATTELS, AND REAL ESTATE OF THE PARENTS ARE SEIZABLE FOR THE
SUPPORT OF SUCH CHILDREN, IF THE PARENTS HAVE ABSCONDED.  THE REPUTED
FATHER IS LIABLE TO ARREST AND IMPRISONMENT UNTIL HE GIVES SECURITY TO
INDEMNIFY THE TOWN CHARGEABLE WITH THE MAINTENANCE OF THE CHILD.  THESE
PROVISIONS ARE INTENDED FOR THE PUBLIC INDEMNITY, AND WERE BORROWED
FROM THE SEVERAL ENGLISH STATUTES ON THE SUBJECT; AND SIMILAR
REGULATIONS TO COERCE THE PUTATIVE FATHER TO MAINTAIN THE CHILD, AND
INDEMNIFY THE TOWN OR PARISH, HAVE BEEN ADOPTED IN THE SEVERAL
STATES."  2 J.KENT, COMMENTARIES *215 (12TH ED. O. HOLMES 1873). 

/21/  BUT SEE N. 19, SUPRA. 

/22/  SUBCOMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION
OF MINORITIES OF THE COMMISSION ON HUMAN RIGHTS, UNITED NATIONS
ECONOMIC AND SOCIAL COUNCIL, STUDY OF DISCRIMINATION AGAINST PERSONS
BORN OUT OF WDLOCK:  GENERAL PRINCIPLES ON EQUALITY AND NON
DISCRIMINATION IN RESPECT OF PERSONS BORN OUT OF WEDLOCK, U.N. DOC.
3/C/N. 4 SUB. 2./L 453 (JAN. 13, 1967). 

/23/  STONE, REPORT OF THE COMMITTEE ON THE LAW OF SUCCESSION IN
RELATION TO ILLEGITIMATE PERSONS, 30 MOD. L. REV. 552 (1967). 

/24/  NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
UNIFORM PROBATE CODE SEC. 2-109 (OFFICIAL TEXT 1969). 

/25/  NOTE, ILLEGITIMACY, 26 BROOKLYN L. REV. 45 (1959); KRAUSE,
EQUAL PROTECTION FOR THE ILLEGITIMATE, 65 MICH.L.REV.  477 (1967);
KRAUSE, BRINGING THE BASTARD INTO THE GREATY SOCIETY-- A PROPOSED
UNIFORM ACT ON LEGITIMACY, 44 TEX.L.REV.  829 (1966); GRAY & URDOVSKY,
THE COURT ACKNOWLEDGES THE ILLEGITIMATE:  LEVY V. LOUISIANA AND GLONA
V. AMERICAN GUARANTEE & LIABILITY INSURANCE CO., 118 U.PA.L.REV.  1
(1969); NOTE, THE RIGHTS OF ILLEGITIMATES UNDER FEDERAL STATUTES, 76
HARV.L.REV.  337 (1962). 

/26/  SEE THE TABLE SUMMARIZING STATE STATUTES IN NOTE,
ILLEGITIMACY, 26 BROOKLYN L.REV.  45, 76-79 (1959).  IN 1959, NEW YORK
AS WELL AS LOUISIANA DID NOT ALLOW ILLEGITIMATE CHILDREN TO INHERIT
EQUALLY FROM THEIR MOTHERS.  NEW YORK HAS SINCE CHANGED ITS LAW.  N.Y.
EST., POWERS & TRUSTS LAW SEC. 4-1.2(A)(1) (1967). 

/27/  HAWAII REV. LAWS SEC. 577-14 (1968); KY. REV. STAT. SEC.
391.090 (1962); PA. STAT. ANN., TIT. 20, SEC. 1.7 (1950). 

/28/  CAL. PROB.  CODE SEC. 255 (SUPP. 1971); COLO. REV. STAT. ANN.
SEC. 153-2-8 (1963); FLA. STAT. SEC. 731.29 (1965); GA. CODE ANN. SEC.
74-103 (1964); IDAHO CODE SEC. 14-104 (1947); IND. ANN. STAT. SEC. 6
207 (1953) (ADJUDICATION OF PATERNITY REQUIRED); IOWA CODE SEC. 633.222
(1971); KAN. STAT. ANN. SEC. 59-501 (1964); MICH. STAT. ANN. SEC.
27.3178 (153) (SUPP. 1970); MINN. STAT. SEC. 525.172 (1967); MONT. REV.
CODES ANN. SEC. 91-404 (1964); NEB. REV. STAT. SEC. 30-109 (1964); NEV.
REV. STAT. SEC. 134.170 (1967); N.M. STAT. ANN. SEC. 29-1-18 (1953);
N.Y. EST., POWERS & TRUSTS LAW SEC. 4-1.2 (1967) (ORDER OF FILIATION
REQUIRED); OKLA. STAT. ANN., TIT. 84, SEC. 215 (1970); S.D. COMPILED
LAWS ANN. SEC. 29-1-15 (1967); UTAH CODE ANN. SEC. 74-4-10 (1953);
WASH. REV. CODE SEC. 11.04.081 (1967); WIS. STAT. ANN. SEC. 237.06
(SUPP. 1970). 

/29/  ARIZ. REV. STAT. ANN. SEC. 14-206 (1956); N.D. CENT. CODE SEC.
56-01-05 (SUPP. 1969); ORE.  REV.  STAT. SECS. 111.231, 109.060
(1957). 

/30/  THE STATE COURT ALSO ARGUED THAT LOUISIANA'S DISINHERITANCE OF
THE ILLEGITIMATE WOULD SERVE THE STATE'S INTEREST IN THE STABILITY OF
LAND TITLES, BY AVOIDING "THE DISRUPTIONS AND UNCERTAINTIES TO RESULT
FROM UNKNOWN AND NOT EASILY ASCERTAINED CLAIMS THROUGH AVERMENTS OF
PARENTAGE . . . . "  229 SO.2D, AT 452.  THIS IS SIMPLY A VARIATION ON
THE STATE'S INTEREST IN RELYING ON FORMALITIES, SEE SUPRA, AT 552,
WHICH IS COMPLETELY SERVED BY PUBLIC ACKNOWLEDGMENT OF PARENTAGE AND
SIMPLY DOES NOT APPLY TO THE CASE OF ACKNOWLEDGED ILLEGITIMATE
CHILDREN. 

/31/  SEE N. 19, SUPRA. 

JAMES J. COX ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

JAMES A. LEITHEAD ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS NORMAN F. ANDERSON. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY HARRY D. KRAUSE
NORMAN DORSEN, AND MELVIN L. WULF FOR THE AMERICAN CIVIL LIBERTIES
UNION, AND BY JONATHAN WEISS AND DAVID GILMAN FOR THE CENTER ON SOCIAL
WELFARE POLICY AND LAW. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY JACK P. F.
GREMILLION, ATTORNEY GENERAL, FOR THE STATE OF LOUISIANA, AND BY A.
LEON HEBERT AND E. DREW MCKINNIS FOR THE BURAS HEIRS ET AL.
..END :












WHITELEY V. WARDEN, 401 U.S. 560 


       WHITELEY V. WARDEN, WYOMING STATE PENITENTIARY

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 136.  ARGUED JANUARY 13, 1971-- DECIDED MARCH 29, 1971 


A SHERIFF, ACTING ON A TIP, MADE A COMPLAINT BEFORE A MAGISTRATE
CHARGING THAT PETITIONER AND ANOTHER INDIVIDUAL ON THE DATE AND AT THE
PLACE NAMED "DID THEN AND THERE UNLAWFULLY BREAK AND ENTER INTO (THE
DESCRIBED) LOCKED . . . BUILDING," AND A WARRANT WAS ISSUED.  A POLICE
RADIO BULLETIN NAMED AND DESCRIBED THE TWO PERSONS, THE TYPE OF CAR
THEY WERE PROBABLY DRIVING, AND THE AMOUNT AND TYPE OF MONEY TAKEN. 
RELYING ON THE BULLETIN, AN OFFICER IN ANOTHER COUNTY MADE A
WARRANTLESS ARREST OF THE SUSPECTS.  THE CAR WAS THEN SEARCHED AND
VARIOUS INCRIMINATING ITEMS REMOVED, WHICH WERE LATER USED AT
PETITIONER'S TRIAL, WHICH RESULTED IN HIS CONVICTION.  PETITIONER FILED
A HABEAS CORPUS PETITION REITERATING THE CHALLENGE HE HAD MADE AT HIS
ARRAIGNMENT AND TRIAL TO THE CONSTITUTIONALITY OF THE USE OF EVIDENCE
SEIZED DURING A SEARCH INCIDENT TO THE ASSERTEDLY ILLEGAL ARREST.  THE
DISTRICT COURT DENIED THE PETITION, AND THE COURT OF APPEALS AFFIRMED. 
HELD: 

1.  PETITIONER'S ARREST VIOLATED HIS RIGHTS UNDER THE FOURTH AND
FOURTEENTH AMENDMENTS AND THE EVIDENCE SECURED INCIDENT THERETO SHOULD
HAVE BEEN EXCLUDED FROM HIS TRIAL.  PP. 564-569. 

     (A) THE COMPLAINT, WHICH DID NOT MENTION THAT THE SHERIFF
ACTED

  ON AN INFORMER'S TIP, AND WHICH CONSISTED OF NO MORE THAN THE

  SHERIFF'S CONCLUSION THAT THE INDIVIDUALS NAMED COMMITTED THE

  OFFENSE, COULD NOT SUPPORT THE INDEPENDENT JUDGMENT OF A

  DISINTERESTED MAGISTRATE.  P. 565. 

     (B) THE STANDARDS APPLICABLE TO THE FACTUAL BASIS FOR AN

  ARRESTING OFFICER'S PROBABLE-CAUSE ASSESSMENT ARE NO LESS STRICT

  THAN THOSE APPLICABLE TO THE MAGISTRATE'S ASSESSMENT.  HERE THE

  ARRESTING OFFICER HAD NO INFORMATION TO CORROBORATE THE REPORT

THAT THE SUSPECTS HAD COMMITTED THE CRIME AND THE FACT THAT THE

  WARRANTLESS ARREST WAS BASED ON A POLICE RADIO BULLETIN CANNOT

  SUPPLY THE ELEMENT OF PROBABLE CAUSE THAT THE OFFICER WHO ISSUED

  THE BULLETIN LACKED.  PP. 565-567. 

2.  SINCE, NOTWITHSTANDING PETITIONER'S CONSTITUTIONAL CHALLENGE AT
EACH STAGE, RESPONDENT MADE NO ATTEMPT TO SHOW THAT THE MAGISTRATE HAD
MORE INFORMATION THAN WAS PRESENTED IN THE COMPLAINT, HE MAY NOT
ATTEMPT TO DO SO NOW ON REMAND; AND THE WRIT MUST ISSUE UNLESS THE
STATE APPROPRIATELY ARRANGES TO RETRY THE PETITIONER.  P. 569. 

416 F.2D 36, REVERSED AND REMANDED. 

HARLAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
BRENNAN, STEWART, WHITE, AND MARSHALL, JJ., JOINED.  BLACK, J., FILED A
DISSENTING OPINION, IN WHICH BURGER, C.J., JOINED, POST, P. 570. 
BLACKMUN, J., FILED A DISSENTING STATEMENT, POST, P. 575. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WHITELEY, IN 1965, WAS CONVICTED IN THE DISTRICT COURT FOR
THE SECOND JUDICIAL DISTRICT OF THE STATE OF WYOMING ON CHARGES OF
BREAKING AND ENTERING AND BEING AN HABITUAL CRIMINAL.  /1/  BOTH AT HIS
ARRAIGNMENT AND AT TRIAL WHITELEY CHALLENGED THE CONSTITUTIONALITY OF
THE USE OF EVIDENCE SEIZED DURING A SEARCH INCIDENT TO AN ARREST WHICH
HE CLAIMED WAS ILLEGAL.  THE TRIAL COURT OVERRULED PETITIONER'S MOTION
TO SUPPRESS, AND ON APPEAL THE SUPREME COURT OF WYOMING AFFIRMED. 
WHITELEY V. STATE, 418 P.2D 164 (1966).  THIS PROCEEDING COMMENCED WITH
A PETITION FOR HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF WYOMING, WHICH WAS DENIED ON NOVEMBER 25, 1968.  /2/
WHITELEY V. WYOMING, 293 F.SUPP.  381.  ON APPEAL, THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED.  WHITELEY V. MEACHAM,
416 F.2D 36 (1969).  WE GRANTED CERTIORARI, LIMITING THE WRIT TO THE
ISSUE OF THE CONSTITUTIONALITY OF THE ARREST AND ENSUING SEARCH AND
SEIZURE.  397 U.S. 1062 (1970).  /3/  WE REVERSE THE JUDGMENT OF THE
TENTH CIRCUIT FOR THE REASONS STATED HEREIN. 

        I 

THE CIRCUMSTANCES SURROUNDING PETITIONER'S ARREST AND THE INCIDENTAL
SEARCH AND SEIZURE, AS STATED BY THE WYOMING SUPREME COURT, 418 P.2D
164, 165-166, ARE AS FOLLOWS:  /4/ 

     "ON NOVEMBER 23, 1964, CERTAIN BUSINESS ESTABLISHMENTS IN

  SARATOGA WERE BROKEN INTO, INCLUDING THE RUSTIC BAR AND SHIVELY'S

  HARDWARE, THE OFFENSES BEING INVESTIGATED BY THE CARBON COUNTY

  SHERIFF (SHERIFF OBGURN) WHO, ACTING ON A TIP, THE NEXT DAY

  SIGNED A COMPLAINT CHARGING DEFENDANT AND ANOTHER WITH BREAKING

AND ENTERING THE BUILDING IDENTIFIED AS THE RUSTIC BAR.  THIS

  COMPLAINT WAS MADE BEFORE A JUSTICE OF THE PEACE AT APPROXIMATELY

  11:30 A.M. ON THE 24TH, AND A WARRANT ISSUED.  AFTER THE

  INVESTIGATION, THE SHERIFF PUT OUT A STATE ITEM ON THE RADIO TO

  PICK UP TWO SUSPECTS OF THE BREAKING AND ENTERING, DEFENDANT AND

  ANOTHER.  THE MESSAGE WENT TO THE NETWORK AT CASPER AND WAS

  TRANSMITTED OVER THE STATE, RECEIVED BY THE ALBANY COUNTY

  SHERIFF'S OFFICE AND COMMUNICATED TO THE LARAMIE POLICE

  DEPARTMENT, THE MESSAGE GIVING NAMES AND DESCRIPTIONS OF THE TWO

  PERSONS AND ADVISING THE TYPE OF CAR PROBABLY BEING DRIVEN AND

  THE AMOUNT OF MONEY TAKEN, INCLUDING CERTAIN OLD COINS WITH THE

 DATES.  LATE AT NIGHT ON NOVEMBER 24, A LARAMIE PATROLMAN, IN

  RELIANCE ON THE INFORMATION IN THE RADIO ITEM, ARRESTED THE

  DEFENDANT AND HIS COMPANION.  AT THE TIME, THE PATROLMAN HAD NO

  WARRANT FOR DEFENDANT'S ARREST NOR SEARCH WARRANT.  THE OFFICER

  TOGETHER WITH A DEPUTY SHERIFF, WHO HAD COME UP IN THE MEANTIME,

  SEARCHED THE CAR AND REMOVED A NUMBER OF ITEMS INTRODUCED IN

  EVIDENCE, INCLUDING TOOLS AND OLD COINS, IDENTIFIED AT THE TRIAL

  AS TAKEN FROM SHIVELY'S HARDWARE . . . . " 

SHERIFF OGBURN'S COMPLAINT, WHICH PROVIDED THE BASIS FOR THE ARREST
WARRANT ISSUED BY THE JUSTICE OF THE PEACE, IS AS FOLLOWS: 

     "I, C. W. OGBURN, DO SOLEMNLY SWEAR THAT ON OR ABOUT THE 23
DAY

  OF NOVEMBER, A.D. 1964, IN THE COUNTY OF CARBON AND STATE OF

WYOMING, THE SAID HAROLD WHITELEY AND JACK DALEY, DEFENDANTS DID

  THEN AND THERE UNLAWFULLY BREAK AND ENTER A LOCKED AND SEALED

  BUILDING (DESCRIBING THE LOCATION AND OWNERSHIP OF THE

  BUILDING)."  APP. 28. 

A STATE ITEM 881, THE BULLETIN WHICH SHERIFF OGBURN PUT OUT ON THE
RADIO AND WHICH LED TO PETITIONER'S ARREST AND SEARCH BY THE LARAMIE
PATROLMAN, IS AS FOLLOWS: 

"P & H FOR B & E SARATOGA, EARLY A.M. 11-24-64.  SUB. #1.  JACK
DALEY, WMA, 38, DO.O.B. 2-29-(26), 5 FEET 10 INCHES, 175, MED.  BUILD,
MED.  COMP., BLOND AND BLUE.  TAT.  LEFT SHOULDER:  'LOVE ME OR LEAVE
ME.'  #2.  HAROLD WHITLEY, WMA, 43, D.O.B. 6-22-21, 5 FEET 11 INCHES,
180, MED.  BUILD, FAIR COMP. BROWN EYES.  TAT.  ON RIGHT ARM 'BIRD.' 
POSS.  DRIVING 1953 OR 1954 BUICK, LIGHT GREEN BOTTOM, DARK TOP.  WY.
LIC.  2-BAL.  UNKNOWN.  TAKEN:  $281.71 IN SMALL CHANGE, NUMEROUS OLD
COINS RANGING FROM .5[ PIECES TO SILVER DOLLARS, DATED FROM 1853 TO
1908.  WARRAN ISSUES, WILL EXTRADITE.  SPECIAL ATTENTION DENVER . . . .
"  APP. 31.  /5/

        II 

THE DECISIONS OF THIS COURT CONCERNING FOURTH AMENDMENT PROBABLE
CAUSE REQUIREMENTS BEFORE A WARRANT FOR EITHER ARREST OR SEARCH CAN
ISSUE REQUIRE THAT THE JUDICIAL OFFICER ISSUING SUCH A WARRANT BE
SUPPLIED WITH SUFFICIENT INFORMATION TO SUPPORT AN INDEPENDENT JUDGMENT
THAT PROBABLE CAUSE EXISTS FOR THE WARRANT.  /6/  SPINELLI V. UNITED
STATES, 393 U.S. 410 (1969); UNITED STATES V. VENTRESCA, 380 U.S. 102
(1965); AGUILAR V. TEXAS, 378 U.S. 108 (1964); RUGENDORF V. UNITED
STATES, 376 U.S. 528 (1964); JONES V. UNITED STATES, 362 U.S. 257
(1960); GIORDENELLO V. UNITEDSTATES, 357 U.S. 480 (1958).  IN THE
INSTANT CASE-- SO FAR AS THE RECORD STIPULATED TO BY THE PARTIES
REVEALS /7/  -- THE SOLE SUPPORT FOR THE ARREST WARRANT ISSUED AT
SHERIFF OGBURN'S REQUEST WAS THE COMPLAINT REPRODUCED ABOVE.  /8/  THAT
COMPLAINT CONSISTS OF NOTHING MORE THAN THE COMPLAINANT'S CONCLUSION
THAT THE INDIVIDUALS NAMED THEREIN PERPETRATED THE OFFENSE DESCRIBED IN
THE COMPLAINT.  THE ACTUAL BASIS FOR SHERIFF OGBURN'S CONCLUSION WAS AN
INFORMER'S TIP, BUT THAT FACT, AS WELL AS EVERY OTHER OPERATIVE FACT,
IS OMITTED FROM THE COMPLAINT.  UNDER THE CASES JUST CITED, THAT
DOCUMENT ALONE COULD NOT SUPPORT THE INDEPENDENT JUDGMENT OF A
DISINTERESTED MAGISTRATE. 

THE STATE, /9/  HOWEVER, CONTENDS THAT REGARDLESS OF THE SUFFICIENCY
OF THE COMPLAINT TO SUPPORT THE ARREST WARRANT, THE LARAMIE POLICE
OFFICER WHO ACTUALLY MADE THE ARREST POSSESSED SUFFICIENT FACTUAL
INFORMATION TO SUPPORT A FINDING OF PROBABLE CAUSE FOR ARREST WITHOUT A
WARRANT.  IN SUPPORT OF THIS PROPOSITION, THE STATE ARGUES THAT A
REVIEWING COURT SHOULD EMPLOY LESS STRINGENT STANDARDS FOR REVIEWING A
POLICE OFFICER'S ASSESSMENT OF PROBABLE CAUSE AS A PRELUDE TO A
WARRANTLESS ARREST THAN THE COURT WOULD EMPLOY IN REVIEWING A
MAGISTRATE'S ASSESSMENT AS A PRELUDE TO ISSUING AN ARREST OR SEARCH
WARRANT.  /10/  THAT PROPOSITION HAS BEEN CONSISTENTLY REJECTED BY THIS
COURT.  UNITED STATES V. VENTRESCA, 380 U.S.,AT 105-109; AGUILAR V.
TEXAS, 378 U.S.,AT 110-111; JONES V. UNITED STATES, 362 U.S.,AT 270
271.  AND THE REASON FOR ITS REJECTION IS BOTH FUNDAMENTAL AND OBVIOUS:
LESS STRINGENT STANDARDS FOR REVIEWING THE OFFICER'S DISCRETION IN
EFFECTING A WARRANTLESS ARREST AND SEARCH WOULD DISCOURAGE RESORT TO
THE PROCEDURES FOR OBTAINING A WARRANT.  THUS THE STANDARDS APPLICABLE
TO THE FACTUAL BASIS SUPPORTING THE OFFICER'S PROBABLE-CAUSE ASSESSMENT
AT THE TIME OF THE CHALLENGED ARREST AND SEARCH ARE AT LEAST AS
STRINGENT AS THE STANDARDS APPLIED WITH RESPECT TO THE MAGISTRATE'S
ASSESSMENT.  SEE MCCRAY V. ILLINOIS, 386 U.S. 300, 304-305 (1967). 

APPLYING THOSE STANDARDS TO THE INSTANT CASE, THE INFORMATION
POSSESSED BY THE LARAMIE POLICE OFFICER AT THE TIME OF ARREST AND
SEARCH CONSISTED OF:  (1) THE DATA CONTAINED IN STATE BULLETIN 881,
REPRODUCED SUPRA; (2) THE KNOWLEDGE, OBTAINED BY PERSONAL OBSERVATION,
THAT TWO MEN WERE DRIVING A CAR MATCHING THE CAR DESCRIBED IN THE RADIO
BULLETIN; (3) THE KNOWLEDGE, POSSESSED BY ONE OF THE ARRESTING
OFFICERS, THAT ONE OF THE PEOPLE IN THE CAR WAS JACK DALEY, APP. 71;
(4) THE KNOWLEDGE, ACQUIRED BY PERSONAL OBSERVATION, THAT THE OTHER
INDIVIDUAL IN THE CAR FITTED THE DESCRIPTION OF WHITELEY CONTAINED IN
STATE BULLETIN 881; AND (5) THE KNOWLEDGE, ACQUIRED BY THE OFFICER
AFTER STOPPING WHITELEY, THAT HE HAD GIVEN A FALSE NAME.  /11/ 

THIS COURT HAS HELD THAT WHERE THE INITIAL IMPETUS FOR AN ARREST IS
AN INFORMER'S TIP, INFORMATION GATHERED BY THE ARRESTING OFFICERS CAN
BE USED TO SUSTAIN A FINDING OF PROBABLE CAUSE FOR AN ARREST THAT COULD
NOT ADEQUATELY BE SUPPORTED BY THE TIP ALONE.  DRAPER V. UNITED STATES,
358 U.S. 307 (1959).  SEE SPINELLI V. UNITED STATES, 383 U.S. 410
(1969).  BUT THE ADDITIONAL INFORMATION ACQUIRED BY THE ARRESTING
OFFICERS MUST IN SOME SENSE BE CORROBORATIVE OF THE INFORMER'S TIP THAT
THE ARRESTEES COMMITTED THE FELONY OR, AS IN DRAPER ITSELF, WERE IN THE
PROCESS OF COMMITTING THE FELONY.  SEE THE OPINIONS OF THE COURT AND
THAT OF MR. JUSTICE WHITE CONCURRING IN SPINELLI V. UNITED STATES,
SUPRA, AND P. 423.  IN THE PRESENT CASE, THE VERY MOST THE ADDITIONAL
INFORMATION TENDED TO ESTABLISH IS THAT EITHER SHERIFF OBGURN, OR HIS
INFORMANT, OR BOTH OF THEM, KNEW DALEY AND WHITELEY AND THE KIND OF CAR
THEY DROVE; THE RECORD IS DEVOID OF ANY INFORMATION AT ANY STAGE OF THE
PROCEEDING FROM THE TIME OF THE BURGLARY TO THE EVENT OF THE ARREST AND
SEARCH THAT WOULD SUPPORT EITHER THE RELIABILITY OF THE INFORMANT OR
THE INFORMANT'S CONCLUSION THAT THESE MEN WERE CONNECTED WITH THE
CRIME.  SPINELLI V. UNITED STATES, SUPRA; MCCRAY V. ILLINOIS, SUPRA;
AGUILAR V. TEXAS, SUPRA. 

THE STATE, HOWEVER, OFFERS ONE FURTHER ARGUMENT IN SUPPORT OF THE
LEGALITY OF THE ARREST AND SEARCH:  THE LARAMIE POLICE RELIED ON THE
RADIO BULLETIN IN MAKING THE ARREST, AND NOT ON SHERIFF OGBURN'S
UNNAMED INFORMANT.  CLEARLY, IT IS SAID, THEY HAD PROBABLE CAUSE FOR
BELIEVING THAT THE PASSENGERS IN THE CAR WERE THE MEN DESCRIBED IN THE
BULLETIN, AND, IN ACTING ON THE BULLETIN, THEY REASONABLY ASSUMED THAT
WHOEVER AUTHORIZED THE BULLETIN HAD PROBABLE CAUSE TO DIRECT WHITELEY'S
AND DALEY'S ARREST.  TO PREVENT ARRESTING OFFICERS FROM ACTING ON THE
ASSUMPTION THAT FELLOW OFFICERS WHO CALL UPON THEM TO MAKE AN ARREST
HAVE PROBABLE CAUSE FOR BELIEVING THE ARRESTEES ARE PERPETRATORS OF A
CRIME WOULD, IT IS ARGUED, UNDULY HAMPER LAW ENFORCEMENT. 

WE DO NOT, OF COURSE, QUESTION THAT THE LARAMIE POLICE WERE ENTITLED
TO ACT ON THE STRENGTH OF THE RADIO BULLETIN.  CERTAINLY POLICE
OFFICERS CALLED UPON TO AID OTHER OFFICERS IN EXECUTING ARREST WARRANTS
ARE ENTITLED TO ASSUME THAT THE OFFICERS REQUESTING AID OFFERED THE
MAGISTRATE THE INFORMATION REQUISITE TO SUPPORT AN INDEPENDENT JUDICIAL
ASSESSMENT OF PROBABLE CAUSE.  WHERE, HOWEVER, THE CONTRARY TURNS OUT
TO BE TRUE, AN OTHERWISE ILLEGAL ARREST CANNOT BE INSULATED FROM
CHALLENGE BY THE DECISION OF THE INSTIGATING OFFICER TO RELY ON FELLOW
OFFICERS TO MAKE THE ARREST. 

IN SUM, THE COMPLAINT ON WHICH THE WARRANT ISSUED HERE CLEARLY COULD
NOT SUPPORT A FINDING OF PROBABLE CAUSE BY THE ISSUING MAGISTRATE.  THE
ARRESTING OFFICER WAS NOT HIMSELF POSSESSED OF ANY FACTUAL DATA TENDING
TO CORROBORATE THE INFORMER'S TIP THAT DALEY AND WHITELEY COMMITTED THE
CRIME.  /12/  THEREFORE, PETITONER'S ARREST VIOLATED HIS CONSTITUTIONAL
RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS; THE EVIDENCE SECURED
AS AN INCIDENT THERETO SHOULD HAVE BEEN EXCLUDED FROM HIS TRIAL.  MAPP
V. OHIO, 367 U.S. 643 (1961). 

        III 

THERE REMAINS THE QUESTION AS TO THE PROPER DISPOSITION OF THIS
CASE.  THE STATE URGES US TO REMAND SO THAT IT WILL HAVE AN OPPORTUNITY
TO DEVELOP A RECORD WHICH MIGHT SHOW THAT THE ISSUING MAGISTRATE HAD
FACTUAL INFORMATION ADDITIONAL TO THAT PRESENTED IN SHERIFF OGBURN'S
COMPLAINT.  BRIEF FOR RESPONDENT 8-9.  YET THE STATE CONCEDES, AS ON
THE RECORD IT MUST, THAT AT EVERY STAGE IN THE PROCEEDINGS BELOW
PETITIONER ARGUED THE INSUFFICIENCY OF THE WARRANT AS WELL AS THE LACK
OF PROBABLE CAUSE AT THE TIME OF THE ARREST.  BRIEF FOR RESPONDENT 4. 
KNOWING THE BASIS FOR PETITIONER'S CONSTITUTIONAL CLAIM, THE STATE
CHOSE TO TRY THOSE PROCEEDINGS ON THE RECORD IT HAD DEVELOPED IN THE
STATE COURTS.  SEE N. 4, SUPRA.  ITS SOLE EXPLANATION FOR THIS STATE OF
AFFAIRS IS THAT "THE STATE HAS FELT, BASED ON PRECEDENT AND LOGIC, THAT
NO COURT WOULD ACCEPT THE LEGAL REASONING OF PETITIONER."  BRIEF FOR
RESPONDENT 9.  IN THE CIRCUMSTANCES OF THIS CASE, THAT JUSTIFICATION,
AS WE HAVE SHOWN, IS UNTENABLE. 

PURSUANT TO OUR AUTHORITY UNDER 28 U.S.C. 2106 TO MAKE SUCH
DISPOSITION OF THE CASE "AS MAY BE JUST UNDER THE CIRCUMSTANCES," WE
REVERSE THE JUDGMENT OF THE TENTH CIRCUIT AND REMAND WITH DIRECTIONS
THAT THE WRIT IS TO ISSUE UNLESS THE STATE MAKES APPROPRIATE
ARRANGEMENTS TO RETRY PETITIONER.  /13/  CF. GIORDENELLO V. UNITED
STATES, 357 U.S.,AT 487-488. 

              IT IS SO ORDERED. 

/1/  HE WAS GIVEN CONCURRENT SENTENCES ON THE BREAKING AND ENTERING
CHARGES OF ONE TO 10 YEARS AND, IN CONSEQUENCE OF THE RECIDIVIST
CHARGE, IMPRISONMENT FOR LIFE. 

/2/  PRIOR TO COMMENCING FEDERAL HABEAS CORPUS PROCEEDINGS, WHITELEY
HAD FILED A PETITION FOR POST-CONVICTION RELIEF PURSUANT TO THE WYOMING
STATUTES.  NO APPEAL WAS TAKEN FROM THE DENIAL OF THAT PETITION. 

/3/  IN HIS PETITION FOR HABEAS CORPUS, WHITELEY RAISED SEVERAL OTHER
ISSUES WHICH HAD PREVIOUSLY BEEN ADVANCED IN HIS STATE PETITION FOR
POST-CONVICTION RELIEF, BUT NOT IN HIS DIRECT APPEAL TO THE SUPREME
COURT OF WYOMING.  ON THESE OTHER ISSUES, BOTH LOWER FEDERAL COURTS
HELD THAT FAILURE TO APPEAL THE DENIAL OF HIS STATE POST-CONVICTION
PETITION CONSTITUTED NONEXHAUSTION OF STATE REMEDIES.  PETITIONER
SOUGHT TO RAISE THE EXHAUSTION ISSUE IN HIS PRESENT PETITION FOR
CERTIORARI, BUT, AS NOTED IN TEXT, WE GRANTED THE WRIT LIMITED TO THE
SEARCH AND SEIZURE ISSUE DECIDED BY THE LOWER FEDERAL COURTS.     /4/
AT THE OUTSET OF THE FEDERAL HABEAS CORPUS PROCEEDING NOW BEFORE US,
BOTH PARTIES ENTERED INTO THE FOLLOWING STIPULATION, APP. 10: 

"IT IS HEREBY STIPULATED BY AND BETWEEN THE PARTIES THROUGH THEIR
RESPECTIVE COUNSEL THAT, PURUSANT TO THE AGREEMENT OF THE PARTIES IN
OPEN COURT ON FEBRUARY 16, 1968, BOTH SIDES WILL RELY EXCLUSIVELY ON
THE RECORD BEFORE THE TRIAL COURT IN THE ORIGINAL CASE OF THE STATE OF
WYOMING V. HAROLD WHITELEY . . . AND ANY AND ALL PARTS OF THE RECORD ON
APPEAL TO THE STATE OF WYOMING . . . IN THE HEARING ON THE MERITS OF
THIS CASE BEFORE THE (U.S. DISTRICT COURT)."     /5/  A SECOND VERSION
OF STATE ITEM 881 IS IDENTICAL IN ALL RELEVANT RESPECTS EXCEPT THAT IT
OMITS REFERENCE TO THE ARREST WARRANT.  SEE APP. 37. 

/6/  IN KER V. CALIFORNIA, 374 U.S. 23 (1963), THE COURT HELD THAT
THE SAME PROBABLE-CAUSE STANDARDS WERE APPLICABLE TO FEDERAL AND STATE
WARRANTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS.  IN MAPP V. OHIO,
367 U.S. 643 (1961), THE COURT HELD THE EXCLUSIONARY RULE WAS
APPLICABLE TO STATE PROSECUTIONS. 

/7/  SEE N. 4, SUPRA. 

/8/  THE DISSENT SEEMS TO IMPLY THAT "THIS RECORD SHOWS" THAT
SHERIFF OBGURN RECEIVED THE DESCRIPTION OF THE CAR CONTAINED IN THE
RADIO BULLETIN FROM SOMEONE WHO ALSO INFORMED HIM THAT HE ALSO SAW THE
CAR AT THE SCENE OF THE CRIME.  POST, AT 570.  THE RECORD WHOLLY FAILS
TO SUPPORT ANY SUCH IMPLICATION.  SHERIFF OGBURN, WHO TESTIFIED ON FOUR
SEPARATE OCCASIONS AT THE TRIAL, SEE R. 105-112, 187-191, 310-314, 335
337, SAID NOTHING OF THE SORT.  ONLY ONE OTHER WITNESS, LEONARD RUSSELL
MARION, TESTIFIED TO HAVING GIVEN OGBURN ANY INFORMATION ABOUT THE CAR
PRIOR TO WHITELEY'S ARREST; MARION NEVER TESTIFIED TO SEEING THE CAR
NEAR THE SCENE OF THE CRIME.  R. 137-322, 329-330.  INDEED, IT IS QUITE
APPARENT FROM READING MARION'S TESTIMONY THAT HIS OBSERVATIONS OF
WHITELEY ON THE DAY OF THE ROBBERY TOOK PLACE AT HIS OWN HOUSE.  R. 320
321. 

MORE IMPORTANTLY, EVEN THE DISSENT APPARENTLY CONCEDES THAT AS FAR
AS THE RECORD IN THIS CASE REVEALS, THE ONLY INFORMATION SHERIFF OGBURN
COMMUNICATED TO THE MAGISTRATE ISSUING THE WARRANT WAS CONTAINED IN HIS
WRITTEN COMPLAINT REPRODUCED ABOVE.  UNDER THE CASES OF THIS COURT, AN
OTHERWISE INSUFFICIENT, AFFIDAVIT CANNOT BE REHABILITATED BY TESTIMONY
CONCERNING INFORMATION POSSESSED BY THE AFFIANT WHEN HE SOUGHT THE
WARRANT BUT NOT DISCLOSED TO THE ISSUING MAGISTRATE.  SEE AGUILAR V.
TEXAS, 378 U.S. 108, 109 N. 1.  A CONTRARY RULE WOULD, OF COURSE,
RENDER THE WARRANT REQUIREMENTS OF THE FOURTH AMENDMENT MEANINGLESS. 

/9/  SINCE THIS IS A FEDERAL HABEAS CORPUS PROCEEDING, THE STATE IS
TECHNICALLY NOT A PARTY. 

/10/  "THE LEGAL PRINCIPLES RELIED UPON BY THE STATE THROUGHOUT THIS
ENTIRE LITIGATED PROCESS HAVE BEEN BASED ON THE PREMISE THAT A LAW
ENFORCEMENT OFFICER MAY MAKE A WARRANTLESS ARREST IF HE HAS REQUISITE
PROBABLE CAUSE, WHICH CAN BE SOMETHING LESS THAN THE REQUISITE PROBABLE
CAUSE THAT MUST BE PRESENTED TO A JUDICIAL OFFICER PRIOR TO THE
ISSUANCE OF AN ARREST OR SEARCH WARRANT."  BRIEF FOR RESPONDENT 6. 

/11/  AFTER ARRESTING WHITELEY AND DALEY, THE OFFICERS SEARCHED THE
CAR AND DISCOVERED IN THE CAR'S INTERIOR THE OLD COINS TAKEN IN ONE OF
THE BURGLARIES AND DESCRIBED IN THE RADIO BULLETIN.  IN ADDITION, THEY
FOUND BURGLAR'S TOOLS IN THE TRUNK OF THE CAR.  OF COURSE, THE
DISCOVERIES OF AN ILLEGAL SEARCH CANNOT BE USED TO VALIDATE THE
PROBABLE-CAUSE JUDGMENT UPON WHICH THE LEGALITY OF THE SEARCH DEPENDS. 

/12/  THE ARREST WARRANT ISSUED AT ABOUT NOON ON NOVEMBER 24, 1964. 
SEE APP. 53.  STATE BULLETIN 881 WAS BROADCAST AT 3:03 P.M. THAT SAME
DAY.  APP. 31.  IT IS APPARENT THAT SHERIFF OGBURN DID NOT HIMSELF
ACQUIRE ADDITIONAL CORROBORATIVE DATA POSSIBLY SUPPORTING A PROBABLE
CAUSE ARREST AFTER SECURING THE WARRANT. 

/13/  THE STATE MAKES A HALFHEARTED ATTEMPT TO ARGUE THAT THE
INTRODUCTION OF THE ILLEGALLY SEIZED EVIDENCE WAS HARMLESS ERROR.  THE
EVIDENCE, OF COURSE, WAS DAMNING, TO SAY THE LEAST.  SEE N. 10, SUPRA.
THE ONLY OTHER EVIDENCE IMPLICATING WHITELEY WAS HIS ACCOMPLICE'S
TESTIMONY.  IT IS CLEAR THAT THE ERROR CANNOT BE SAID TO BE HARMLESS
UNDER APPLICABLE STANDARDS.  CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1967);
HARRINGTON V. CALIFORNIA, 395 U.S. 250 (1969). 

CONTRARY TO THE IMPLICATIONS IN THE DISSENTING OPINION, SEE POST, AT
571 NO WITNESS AT TRIAL OTHER THAN THE ACCOMPLICE PLACED WHITELEY "NEAR
THE SCENE OF THE CRIME" ON THE NIGHT OF THE ROBBERY. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

WITH ALL RESPECT TO MY BRETHREN WHO AGREE TO THE JUDGMENT AND
OPINION OF THECOURT, I AM CONSTRAINED TO SAY THAT I BELIEVE THE
DECISION HERE IS A GROSS AND WHOLLY INDEFENSIBLE MISCARRIAGE OF
JUSTICE.  FOR THIS REASON IT MAY WELL BE CLASSIFIED AS ONE OF THOSE
CALCULATED TO MAKE MANY GOOD PEOPLE BELIEVE OUR COURT ACTUALLY ENJOYS
FRUSTRATING JUSTICE BY UNNECESSARILY TURNING PROFESSIONAL CRIMINALS
LOOSE TO PREY UPON SOCIETY WITH IMPUNITY.  HERE IS WHAT THIS RECORD
SHOWS: 

ON THE NIGHT OF NOVEMBER 23, 1964, SEVERAL ESTABLISHMENTS, INCLUDING
A BAR AND HARDWARE STORE WERE BROKEN INTO AT THE VILLAGE OF SARATOGA,
WYOMING.  SOME OLD COINS AND OTHER ITEMS WERE TAKEN FROM THE HARDWARE
STORE.  SOME PEOPLE SAW PETITIONER AND HIS COMPANION THAT NIGHT IN OR
NEAR SARATOGA.  THE NEXT MORNING THE SHERIFF, WHO LIVED AT RAWLINS, THE
COUNTY SEAT, ANOTHER VILLAGE IN SPARSELY SETTLED CARBON COUNTY, /1/
INVESTIGATED THE BURGLARIES.  IN ADDITION TO VIEWING THE SCENE OF THE
CRIMES, THE SHERIFF RECEIVED A RATHER DETAILED DESCRIPTION OF THE CAR,
INCLUDING A PORTION OF THE LICENSE PLATE NUMBER, SAID TO HAVE BEEN USED
BY THE BURGLARS.  THE SHERIFF ALSO RECEIVED A TIP THAT PERSUADED HIM
THAT PETITIONER AND HIS COMPANION, JACK DALEY, WERE PROBABLY GUILTY OF
ONE OF THE BURGLARIES.  UPON THE STRENGTH OF THIS TIP, COUPLED WITH HIS
OBSERVATION OF THE SCENE OF THE CRIMES AND THE DESCRIPTION OF THE
VEHICLE, THE SHERIFF PERSONALLY APPEARED BEFORE THE JUSTICE OF THE
PEACE IN RAWLINS TO SECURE A WARRANT FOR THE ARREST OF PETITIONER AND
HIS COMPANION.  AFTER SECURING THE WARRANT HE AUTHORIZED AND SENT A
STATEWIDE RADIO POLICE ALERT DESCRIBINT THE MEN AND THEIR CAR AND
CALLING UPON OFFICERS TO ARREST THEM.  THE NIGHT OF NOVEMBER 24,
POLICEMEN AT LARAMIE, WYOMING, LEARNED THAT PETITIONER'S COMPANION,
DALEY, WAS IN THE CITY.  THEY LOCATED AND STOPPED THE CAR DESCRIBED IN
THE ALERT, FINDING IT OCCUPIED BY TWO MEN MATCHING THE DESCRIPTIONS
CONTAINED IN THE MESSAGE.  ONE OF THE OFFICERS PERSONALLY RECOGNIZED
JACK DALEY.  IN RESPONSE TO A REQUEST FOR IDENTIFICATION, HAROLD
WHITELEY GAVE POLICE A FALSE NAME.  AT THAT POINT THE TWO MEN WERE
ARRESTED AND THE CAR WAS SEARCHED.  OLD COINS, TOOLS, AND OTHER ITEMS
LATER IDENTIFIED AT TRIAL AS HAVING BEEN TAKEN FROM THE BURGLARIZED
HARDWARE STORE WERE FOUND IN THE TRUNK AND INTERIOR OF THE CAR. 

AT THE TRIAL THE SEIZED ITEMS WERE INTRODUCED INTO EVIDENCE OVER
PETITIONER'S OBJECTION.  IN ADDITION, PETITIONER WAS IDENTIFIED AS
HAVING BEEN NEAR THE SCENE OF THE CRIME ON THE NIGHT OF NOVEMBER 23. 
/2/  JACK DALEY, PETITIONER'S COMPANION, TOLD THE JURY IN VIVID DETAIL
HOW HE AND WHITELEY JIMMIED OPEN THE BACK DOOR AND BURGLARIZED THE
HARDWARE STORE.  /3/  PETITIONER TOOK THE STAND AND PRESENTED AN ALIBI
DEFENSE WHICH WAS DSICREDITED BY SEVERAL WITNESSES INCLUDING JACK
DALEY.  PETITIONER WAS CONVICTED AND SENTENCED TO 10 YEARS FOR BURGLARY
AND CONCURRENTLY TO LIFE IMPRISONMENT UNDER WYOMING LAW BECAUSE OF HIS
SEVERAL PRIOR CONVICTIONS.  IT WAS CHARGED AND PROVED THAT HE HAD BEEN
CONVICTED OF THREE FELONIES AND THE RECORD SHOWS THAT HE WAS 43 YEAR OF
AGE AND HAD ALREADY SERVED SIX TIMES IN THE PENITENTIARY.  THE SUPREME
COURT OF WYOMING AFFIRMED THE CONVICTION SEPTEMBER 15, 1966, WHITELEY
V. STATE, 418 P.2D 164, HOLDING THAT THE LARAMIE OFFICERS HAD A RIGHT
AND DUTY TO ARREST THE MEN IN THEIR VEHICLE BECAUSE THEY HAD REASONABLE
GROUND TO BELIEVE THE MEN HAD COMMITTED A BURGLARY AND THAT THEY HAD
THE FRUITS OF THEIR CRIME IN THE CAR, CITING AMONG OTHER CASES CARROLL
V. UNITED STATES, 267 U.S. 132 (1925).  SEE ALSO CHAMBERS V. MARONEY,
399 1.S. 42 (1970). 

I THINK IT IS A DISTORTION OF THE FOURTH AMENDMENT'S MEANING TO HOLD
THAT THIS PETITIONER'S ARREST AND THE SEIZURE OF THE GOODS HE HAD
STOLEN WERE "UNREASONABLE ARREST" AND AN "UNREASONABLE SEIZURE."  IN
DECIDING THIS QUESTION IT SHOULD ALWAYS BE REMEMBERED THAT THE FOURTH
AMENDMENT ITSELF DOES NO? EXPRESSLY COMMAND THAT EVIDENCE OBTAINED BY
ITS INFRACTION SHOULD ALWAYS BE EXCLUDED FROM PROOF. 

THERE WAS CERTAINLY PROBABLE CAUSE TO ARREST THIS MAN.  THE STORE
WAS BURGLARIZED.  THE COUNTY WAS A SPARSELY SETTLED ONE IN WHICH PEOPLE
KNEW ONE ANOTHER.  PETITIONER, WHOSE PREVIOUS LIFE WOULD APPEAR TO HAVE
EARNED FOR HIM THE TITLE OF PROFESSIONAL IN THE STEALING VOCATION, WAS
SEEN AROUND THE STORE WITH HIS CAR THE VERY NIGHT OF THE BURGLARY. 
UNDOUBTEDLY THIS LONGTIME COUNTY SHERIFF (WHO APPEARS STILL TO BE
SHERIFF) WAS BOUND TO KNOW PETITIONER.  THE TIP HE RECEIVED WAS SO
PERSUASIVE TO HIM THAT IN THE PERFORMANCE OF HIS OFFICIAL DUTY HE WAS
WILLING TO ASSUME ALL THE RISK INCIDENT TO HAVING PETITIONER ARRESTED. 
IT SURELY CANNOT BE SAID THAT WHEN A SHERIFF, WITH HIS PRESTIGE AND
STANDING, AND BOND AGAINST CIVIL SUIT, COMMUNICATES AN EMERGENCY
MESSAGE TO ARREST MEN IN CARS AS BURGLARS, A POLICEMAN MUST STAND
SUPINELY BY WHILE TWO PEOPLE DENOUNCED AS BURGLARS GO ALONG THEIR WAY. 
OF COURSE THESE POLICEMEN HAD ENOUGH INFORMATION FROM THE SHERIFF TO
HAVE PROBABLE CAUSE TO ARREST PETITIONER. 

MY DISAGREEMENT WITH THE MAJORITY CONCERNING THE WISDOM AND
CONSTITUTIONAL NECESSITY OF A "LITTLE TRIAL" BEFORE A MAGISTRATE OR
JUSITCE OF THE PEACE PRIOR TO THE ISSUANCE OF A SEARCH OR ARREST
WARRANT IS A MATTER OF RECORD.  SEE AGUILAR V. TEXAS, 378 U.S. 108, 116
(1964) (CLARK, J., DISSENTING); SPINELLI V. UNITED STATES, 393 U.S.
410, 429 (1969) (BLACK, J., DISSENTING).  BUT EVEN ACCEPTING THOSE
DECISIONS, ARGUENDO, THEY DO NOT CONTROL THE DISPOSITION OF THIS CASE
WHICH INVOLVES THE APPREHENSION OF CRIMINALS IN AN AUTOMOBILE MOVING
AWAY FROM THE SCENE OF THE CRIME LESS THAN 24 HOURS AFTER ITS
COMMISSION.  THE SHERIFF'S BELIEF THAT WHITELEY AND DALEY WERE GUILTY,
EVEN IF IT WAS ONLY A "SUSPICION" AS THE MAJORITY SEEMS TO LABEL IT,
GAVE POLICE OFFICERS PROPER GROUNDS TO STOP PETITIONER'S CAR AND
INQUIRE ABOUT ITS PASSENGERS.  TERRY V. OHIO, 392 U.A. 1 (1968).  AND
ONCE THE OFFICERS STOPPED THE CAR AND POSITIVELY IDENTIFIED JACK DALEY,
THEY HAD EVERY REASON TO BELIEVE THAT WHITELEY WAS LYING AND ATTEMPTING
TO ESCAPE DETECTION WHEN HE REPORTED A FALSE NAME.  AT LEAST AT THAT
POINT, IF NOT BEFORE, THE LARAMIE POLICE HAD PROBABLE CAUSE TO ARREST
PETITIONER AND DALEY.  WITH PROBABLE CAUSE TO ARREST THE MEN, THEY ALSO
HAD AUTHORITY TO SEARCH THE CAR.  SUCH A SEARCH COULD BE JUSTIFIED
UNDER EITHER OF TWO THEORIES.  EVEN UNDER CHIMEL V. CALIFORNIA, 395
U.S. 752 (1969), THE SEARCH OF AN AUTOMOBILE INCIDENT TO THE ARREST OF
THE OCCUPANTS IS PERMISSIBLE.  AND IN THIS VERY CASE, THE OFFICERS
FOUND A FULLY LOADED HANDGUN IN THE GLOVE COMPARTMENT.  THE SEARCH WAS
ALSO PERMISSIBLE UNDER THE "MOVABLE VEHICLE" EXCEPTION TO THE USUAL
REQUIREMENT FOR A SEARCH WARRANT.  CHAMBERS V. MARONEY, 399 T.S. 42
(1970); CARROLL V. UNITED STATES, 267 U.S. 132 (1925).  I CONSIDER IT A
TRAVESTY OF JUSTICE TO TURN THIS MAN OUT OF JAIL OR GIVE HIM A NEW
TRIAL SIX YEARS AFTER HE WAS CONVICTED.  /4/ 

FAY V. NOIA, 372 U.S. 391 (1963), DOES NOT, IN MY JUDGMENT, JUSTIFY
WHAT THE COURT IS DOING.  THE TRIAL COURT PASSED ON THIS ISSUE OF
VALIDITY OF PETITIONER'S ARREST SOME YEARS AGO.  LATER HE ASKED FOR
RELIEF THROUGH STATE POST-CONVICTION PROCEDURES ON THE SAME GROUND AND
HIS CLAIM WAS REJECTED.  HE HAS NOW SOUGHT RELIEF THROUGH FEDERAL
HABEAS CORPUS.  AFTER THE UNITED STATES DISTRICT COURT AND THE COURT OF
APPEALS REJECTED HIS UNLAWFUL SEARCH CLAIM, BRINGING TO 10 THE NUMBER
OF STATE AND FEDERAL JUDGES WHO HAVE CONSISTENTLY AND UNANIMOUSLY
REJECTED PETITIONER'S CLAIM, THIS COURT REVERSES HIS JUDGMENT OF
CONVICTION, ALTHOUGH PETITIONER DOES NOT, OF COURSE, NOW ALLEGE HIS
INNOCENCE.  AS I SAID IN KAUFMAN V. UNITED STATES, 394 U.S. 217, 231
(BLACK, J., DISSENTING), THE FAY V. NOIA REMEDY SHOULD BE LIMITED AS IT
WAS BY ITS OWN FACTS, AND CONVICTIONS SHOULD REMAIN FINAL UNLESS A
PETITIONER SEEKING HABEAS CORPUS ALLEGES THAT HE CAN CURRENTLY SHOW HE
WAS INNOCENT.  THERE IS NOT EVEN A SUSPICION HERE THAT THIS HARDENED
CRIMINAL IS INNOCENT AND I WOULD LET HIM STAY IN CONFINEMENT TO SERVE
HIS SENTENCE. 

/1/  THE POPULATION OF CARBON COUNTY ACCORDING TO THE 1970 CENSUS IS
ABOUT 13,000 PERSONS. 

/2/  LEONARD RUSSELL MARION TESTIFIED AT TRIAL THAT HE HAD SEEN
WHITELEY AT HIS HOME IN SARATOGA, A TOWN OF ABOUT 1,000 POPULATION, ON
THE DAY OF THE ROBBERY.  MR. MARION FURTHER TESTIFIED THAT HE OBSERVED
WHITELEY'S CAR AND A PORTION OF THE LICENSE PLATE NUMBER AND GAVE THAT
INFORMATION TO THE SHERIFF.  SEE R. 317-321, 329-330.  THE MAJORITY
FAILS TO RECOGNIZE THAT SARATOGA IS A VERY SMALL COUNTRY TOWN AND THAT
STRANGERS ARE MOST UNLIKELY TO MOVE ABOUT UNNOTICED.  SOMETHING
OBVIOUSLY AROUSED MR. MARION'S SUSPICION OR ELSE HE WOULD NOT HAVE
REPORTED THE OBSERVATION OF PETITIONER AND HIS CAR TO THE SHERIFF. 

/3/  DALEY'S TESTIMONY WAS NOT UNCORROBORATED.  HE TESTIFIED IN
DETAIL ABOUT THE TRIP FROM LARAMIE TO SARATOGA WHERE THE CRIME WAS
COMMITTED WITH STOPS IN MEDICINE BOW AND ELK MOUNTAIN.  ERNEST HORNDEN
TESTIFIED AT TRIAL THAT DALEY AND WHITELEY WERE IN THE DIP BAR IN
MEDICINE BOW ON THE NIGHT OF NOVEMBER 23, 1964, SHORTLY BEFORE THE
BURGLARY.  ANOTHER WITNESS, LEROY HANSEN, TESTIFIED THAT WHITELEY WAS
IN ELK MOUNTAIN ON THE DAY OF THE BURGLARY, SEE R. 315-316.     /4/
THE SEARCH IN THIS CASE TOOK PLACE ON NOVEMBER 24, 1964.  ALTHOUGH I
DISAGREED WITH SPINELLI V. UNITED STATES, 393 U.S. 410 (1969), I HAVE
ALWAYS BELIEVED THAT CONSTITUTIONAL DECISIONS SHOULD BE FULLY
RETROACTIVE IN THEIR APPLICATION.  SEE LINKLETTER V. WALKER, 381 U.S.
618, 640 (1965) (BLACK, J., DISSENTING).  I AM THUS GLAD TO SEE THAT
THE MAJORITY HAS APPARENTLY DECIDED TO APPLY CONSTITUTIONAL DECISIONS
RETROACTIVELY EVEN WHEN THEY DO NOT AFFECT THE "INTEGRITY OF THE FACT
FINDING PROCESS," SEE ID., AT 639, AND WILL GREATLY BURDEN THE
ADMINISTRATION OF JUSTICE, SEE DESIST V. UNITED STATES, 394 U.S. 244,
250 (1969). 

MR. JUSTICE BLACKMUN AGREES WITH MUCH THAT IS SAID BY MR. JUSTICE
BLACK AND ALSO DISSENTS FROM THE OPINION AND JUDGMENT OF THE COURT. 

WILLIAM J. KNUDSEN, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM
ON THE BRIEFS WAS RICHARD A. MULLENS. 

JACK SPEIGHT, ASSISTANT ATTORNEY GENERAL OF WYOMING, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS JAMES E. BARRETT,
ATTORNEY GENERAL. 
..END :






UNITED STATES V. RANDALL, 401 U.S. 513 


       UNITED STATES V. RANDALL, TRUSTEE IN BANKRUPTCY

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 125.  ARGUED FEBRUARY 22, 1971-- DECIDED MARCH 24,
1971 


THE DEBTOR CORPORATION, KEPT IN POSSESSION OF ITS BUSINESS BY COURT
ORDER UNDER CHAPTER XI OF THE BANKRUPTCY ACT, DID NOT COMPLY WITH
REQUIREMENTS THAT IT DEPOSIT WITHHELD TAXES IN A SPECIAL TAX ACCOUNT. 
IT WAS LATER ADJUDICATED A BANKRUPT, AND THE UNITED STATES ASKED THE
BANKRUPTCY COURT TO PAY THE AMOUNT OF WITHHELD TAXES PRIOR TO PAYMENT
OF COSTS AND EXPENSES OF THE BANKRUPTCY PROCEEDINGS, PURSUANT TO 26
U.S.C. 7501(A), WHICH PROVIDES THAT THE AMOUNT OF WITHHELD TAXES "SHALL
BE HELD TO BE A SPECIAL FUND IN TRUST FOR THE UNITED STATES."  THE
REFEREE DENIED THE REQUEST, AND THE DISTRICT COURT AND THE COURT OF
APPEALS AGREED.  HELD:  SECTION 64(A)(1) OF THE BANKRUPTCY ACT, WHICH
IS AN OVERRIDING STATEMENT OF FEDERAL POLICY ON THE QUESTION OF
PRIORITIES, CLEARLY PROVIDES THAT THE FIRST PRIORITY IN PAYMENTS FROM
BANKRUPT ESTATES BELONGS TO THE COSTS AND EXPENSES OF ADMINISTRATION
INCURRED IN THE BANKRUPTCY PROCEEDINGS.  PP. 515-517. 

419 F.2D 1068, AFFIRMED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH HARLAN,
BRENNAN, WHITE, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED A
DISSENTING OPINION IN WHICH BURGER, C.J., AND BLACK AND STEWART, JJ.,
JOINED, POST, P. 518. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

HALO METAL PRODUCTS, INC. (THE DEBTOR) WAS KEPT IN POSSESSION OF ITS
BUSINESS BY COURT ORDER UNDER CHAPTER XI OF THE BANKRUPTCY ACT, 11
U.S.C. 701 ET SEQ. THE ORDER REQUIRED IT TO OPEN THREE SEPARATE BANK
ACCOUNTS FOR ITS GENERAL, PAYROLL, AND TAX INDEBTEDNESS AND TO MAKE
APPROPRIATE DISBURSEMENTS FROM THOSE ACCOUNTS.  SALARIES AND WAGES PAID
WERE TO BE CREDITED AGAINST THE PAYROLL ACCOUNT AND CHECKS FOR WAGES
AND FOR WITHHELD INCOME AND SOCIAL SECURITY TAXES WERE TO BE PAID AFTER
APPROVAL BY THE REFEREE.  CHECKS FOR THE WITHHELD TAXES WERE TO BE PAID
INTO THE TAX ACCOUNT.  WITHDRAWALS FROM THIS ACCOUNT WERE TO BE ALLOWED
ONLY FOR PAYMENT OF WITHHELD TAXES AND WELFARE OBLIGATIONS. 

THE DEBTOR DID NOT COMPLY WITH THOSE REQUIREMENTS.  ALTHOUGH IT
WITHHELD INCOME AND SOCIAL SECURITY TAXES FROM THE WAGES OF ITS
EMPLOYEES, IT DID NOT DEPSOIT THEM IN THE SPECIAL TAX ACCOUNT AND DID
NOT PAY THEM, AS REQUIRED, TO THE UNITED STATES. 

LATER THE DEBTOR WAS ADJUDICATED A BANKRUPT.  THE UNITED STATES,
WHICH HAD PREVIOUSLY FILED A PROOF OF CLAIM IN THE CHAPTER XI
PROCEEDINGS FOR PAYMENT OF THE TAXES, NOW ASKED THE BANKRUPTCY COURT TO
PAY THE AMOUNT OF WITHHELD TAXES PRIOR TO THE PAYMENT OF THE COSTS AND
EXPENSES OF ADMINISTRATION OF THE BANKRUPTCY PROCEEDINGS.  THE REFEREE
DENIED THE REQUEST.  THE DISTRICT COURT AGREED WITH THE REFEREE.  THE
COURT OF APPEALS AFFIRMED THE ORDER DENYING PAYMENT, 419 F.2D 1068. 
THE CASE IS HERE ON PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED
(400 U.S. 817) BECAUSE OF A CONFLICT AMONG THE CIRCUITS, CF. CITY OF
NEW YORK V. RASSNER, 127 F.2D 703; UNITED STATES V. SAMPSELL, 193 F.2D
154; HERCULES SERVICE PARTS CORP. V. UNITED STATES, 202 F.2D 938. 

THE UNITED STATES RELIES FOR ITS PRIORITY ON 26 U.S.C. 7501(A),
WHICH PROVIDES: 

     "WHENEVER ANY PERSON IS REQUIRED TO COLLECT OR WITHHOLD ANY

  INTERNAL REVENUE TAX FROM ANY OTHER PERSON AND TO PAY OVER SUCH

  TAX 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 PENALITIES) AS ARE

  APPLICABLE WITH RESPECT TO THE TAXES FROM WHICH SUCH FUND

  AROSE." 

THE ARGUMENT IS THAT WITHHELD TAXES ARE A TRUST IN FAVOR OF THE
UNITED STATES.  IT IS ANSWERED THAT THE DEBTOR-IN-POSSESSION FAILED TO
SEGREGATE THE TAXES SO WITHHELD; HENCE THERE WAS NO TRUST.  TO THAT THE
UNITED STATES REPLIES THAT SINCE THE DEBTOR-IN-POSSESSION WAS A COURT
APPOINTED OFFICER, THE MISCONDUCT OF THE OFFICER SHOULD NOT DEFEAT THE
TRUST.  /1/  AND, THE ARGUMENT CONTINUES, CREDITORS ARE NOT UNFAIRLY
HARMED SINCE THE TRUST FUNDS WERE NEVER AN ASSET OF THE ESTATE. 

WE DEAL, HOWEVER, WITH A BANKRUPTCY ACT WHICH WE CONCLUDE IS AN
OVERRIDING STATEMENT OF FEDERAL POLICY ON THIS QUESTION OF PRIORITIES. 
PROVIDES: 

     "THE DEBTS TO HAVE PRIORITY, IN ADVANCE OF THE PAYMENT OF

  DIVIDENDS TO CREDITORS, AND TO BE PAID IN FULL OUT OF BANKRUPT

  ESTATES, AND THE ORDER OF PAYMENT, SHALL BE (1) THE COSTS AND

  EXPENSES OF ADMINISTRATION . . . . WHERE AN ORDER IS ENTERED IN A

 PROCEEDING UNDER ANY CHAPTER OF THIS TITLE DIRECTING THAT

  BANKRUPTCY BE PROCEEDED WITH, THE COSTS AND EXPENSES OF

  ADMINISTRATION INCURRED IN THE ENSUING BANKRUPTCY PROCEEDING . .

  . SHALL HAVE PRIORITY IN ADVANCE OF PAYMENT OF THE UNPAID COSTS

  AND EXPENSES OF ADMINISTRATION . . . INCURRED IN THE SUPERSEDED

  PROCEEDING . . . . " 

UNTIL 1926 CLAIMS FOR ADMINISTRATIVE EXPENSES WERE SUBORDINATE TO
TAX CLAIMS.  /2/  IN THAT YEAR THEY WERE PLACED AHEAD OF TAXES.  /3/
THE COSTS AND ADMINISTATIVE EXPENSES OF A TRUSTEE WERE, HOWEVER, STILL
SUBORDINATE TO CLAIMS OF THE REFEREE OR CREDITORS FOR PRESERVING OR
RECOVERING ASSETS.  /4/  IN 1952 THE ACT WAS AMENDED TO GIVE PRIORITY
TO ADMINISTRATIVE EXPENSES OF AN ENSUING BANKRUPTCY PROCEEDING OVER
UNPAID ADMINISTRATIVE EXPENSES OF A SUPERSEDED PROCEEDING.  /5/ 

WE HAVE THEN A PROGRESSIVE LEGISLATIVE DEVELOPMENT THAT (1) MARKS A
DECLINE IN THE GRANT OF A TAX PREFERENCE TO THE UNITED STATES AND (2)
MARKS AN ASCENDING PRIORITY FOR COSTS AND EXPENSES OF ADMINISTRATION. 

WE THINK THE STATUTORY POLICY OF SUBORDINATING TAXES TO COSTS AND
EXPENSES OF ADMINISTRATION WOULD NOT BE SERVED BY CREATING OR ENFORCING
TRUSTS WHICH EAT UP AN ESTATE, LEAVING LITTLE OR NOTHING FOR CREDITORS
AND COURT OFFICERS WHOSE GOODS AND SERVICES CREATED THE ASSETS.  IN
NICHOLAS V. UNITED STATES, 384 U.S. 678, 690-692, WE REJECTED THE CLAIM
OF THE UNITED STATES THAT UNDER SEC. 7501(A) OF THE INTERNAL REVENUE
CODE IT WAS ENTITLED TO INTEREST ACCRUING AFTER THE ARRANGEMENT UNDER
CHAPTER XI AND DURING THE BANKRUPTCY.  WE SO HELD BECAUSE TO ALLOW
INTEREST WOULD RUN COUNTER TO THE "STRONG POLICY OF SEC. 64(A)(1) OF
THE BANKRUPTCY ACT."  ID., AT 691.  TO ALLOW THE PRESENT CLAIMED
PRIORITY FOR THE PRINCIPAL WOULD BY THE SAME TOKEN RUN COUNTER TO THE
GRAIN OF THE BANKRUPTCY ACT. 

THIS CONSTRUCTION CONFORMS WITH A LITERAL READING OF THE SECOND
SENTENCE OF SEC. 7501(A) WHICH MAKES THE AMOUNT OF SUCH FUND PAYABLE
"IN THE SAME MANNER AND SUBJECT TO THE SAME PROVISIONS AND LIMITATIONS
. . . AS ARE APPLICABLE WITH RESPECT TO THE TAXES FROM WHICH SUCH FUND
AROSE."  IN CONFORMITY WITH NICHOLAS WE READ THOSE WORDS AGAINST THE
HISTORY OF THE BANKRUPTCY ACT.  SO READ, THE FUND IS AS SUBORDINATE AS
THE TAXES.  SEE IN RE GREEN, 264 F.SUPP.  849, 851. 

WHAT WE DECIDE TODAY IS ALSO IN ACCORD WITH THOSE DECISIONS WHICH
HOLD THAT THE SPECIFIC PRIORITIES GRANTED BY CONGRESS IN THE BANKRUPTCY
ACT GOVERN GENERALIZED STATUTES GIVING THE UNITED STATES PRIORITY IN A
WIDE RANGE OF SITUATIONS.  /6/  GUARANTEE CO. V. TITLE GUARANTY CO.,
224 U.S. 152; DAVIS V. PRINGLE, 268 U.S. 315. 

              AFFIRMED. 

/1/  "WHERE THE FUNDS ARE RECEIVED BY A PUBLIC OFFICER, SUCH AS A
RECEIVER OR TRUSTEE IN BANKRUPTCY, THE OWNER OF THE FUNDS IS ENTITLED
TO PRIORITY WITH RESPECT TO THE FUNDS SO RECEIVED WITHOUT FURTHER
TRACING."  5 A. SCOTT ON TRUSTS SEC. 521, P. 3652 (3D ED. 1967). 

/2/  3A COLLIER ON BANKRUPTCY 2046-2048, 2155-2156 (14TH ED. 1969). 

/3/  44 STAT. 662. 

/4/  COLLIER, SUPRA, N. 2, AT 2049, 2050 N. 15. 

/5/  66 STAT. 426.  "UNLESS PROVISION IS MADE FOR PAYMENT OF THE
COSTS AND EXPENSES NECESSARY TO LIQUIDATE, ADMINISTER AND CLOSE THE
ESTATE IN THE ENSUING BANKRUPTCY PROCEEDING, AHEAD OF ALL PRIOR
INCURRED AND UNPAID ADMINISTRATION COSTS AND EXPENSES, THERE IS ALWAYS
DANGER OF A BREAKDOWN OF ADMINISTRATION.  THERE SHOULD BE ASSURANCE TO
THE TRUSTEE IN THE ENSUING PROCEEDING THAT THE COSTS AND EXPENSES
INCURRED BY HIM, SUCH AS BOND AND INSURANCE PREMIUMS, COSTS OF
CONDUCTING A PUBLIC SALE AND COMPENSATION FOR HIS SERVICES AND FOR THE
SERVICES OF HIS ATTORNEY WILL BE PAID OUT OF THE ASSETS LIQUIDATED AND
ADMINISTERED BY HIM AHEAD OF THE PRIOR UNPAID COSTS AND EXPENSES."  S.
REP. NO. 1395, 82D CONG., 2D SESS., 5. 

IN 1966 CONGRESS AMENDED SEC. 17 OF THE ACT SO AS TO MAKE
DISCHARGEABLE ALL TAXES DUE AND OWING MORE THAN THREE YEARS PRIOR TO
BANKRUPTCY EXCEPT, INTER ALIA, THOSE WITHHELD OR COLLECTED FROM OTHERS
BUT NOT PAID OVER.  ACT OF JULY 5, 1966, 80 STAT. 270. 

/6/  THE COMPETING ACT IN THOSE CASES WAS REV. STAT. SEC. 3466, WHICH
READ:  "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." 

MR. JUSTICE BLACKMUN, WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND
MR. JUSTICE STEWART, JOIN, DISSENTING. 

I CANNOT ESCAPE THE CONVICTION THAT THE COURT'S RULING ON THIS VERY
NARROW ISSUE DISHONORS PROPERTY OF THE UNITED STATES AND EFFECTS A
WINDFALL FOR THOSE WHO BENEFIT FROM THE RULING. 

THE AMOUNT IN ISSUE CONSISTS OF INCOME AND FICA TAXES ACTUALLY
WITHHELD FROM WAGES OF EMPLOYEES.  THESE ARE NOT TAXES OF THE DEBTOR. 
WERE IT NOT FOR THE WITHHOLDING SCHEME, THE AMOUNTS WOULD HAVE BEEN
PAID OUT TO THE EMPLOYEES AS GROSS WAGES AND IT WOULD HAVE BEEN THEIR
OBLIGATION, AS IT WAS PRIOR TO THE ADOPTION OF WITHHOLDING, TO PAY
THOSE TAXES.  INSTEAD, THE EMPLOYER NOW WITHHOLDS, AND SEC. 7501(A) OF
THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. 7501(A), APPROPRIATELY
IMPRESSES A TRUST UPON THE AMOUNTS WITHHELD.  THE COURT TODAY DEFEATS
THE TRUST ONLY BECAUSE THE ARRANGEMENT DEBTOR IN POSSESSION, A
CORPORATION WHICH THE COURT HAS CHARACTERIZED AS "AN OFFICER OF THE
BANKRUPTCY COURT," NICHOLAS V. UNITED STATES, 384 U.S. 678, 690 (1966),
FLAGRANTLY DISOBEYED THE ARRANGEMENT COURT'S SPECIFIC ORDER TO PAY THE
WITHHOLDING AMOUNTS INTO A SEPARATE BANK ACCOUNT.  THE RESPONDENT
TRUSTEE CONCEDES THAT IF THE ORDER HAD BEEN OBEYED, THE TRUSTEE WOULD
HAVE NO CASE.  TR. OF ORAL ARG. 34. 

THE DECISION IN NICHOLAS DOES NOT DEMAND THE RESULT REACHED BY THE
COURT.  THAT CASE CONCERNED INTEREST ACCRUING DURING BANKRUPTCY, NOT
THE TAX ON WHICH THE INTEREST WAS ASSERTED.  THE PRESENT DECISION IS A
LONG STEP DOWN THE ROAD BEYOND NICHOLAS. 

NEITHER AM I PERSUADED BY THE SUGGESTION MADE BY THE TRUSTEE, AND
SEEMINGLY REFLECTED IN THE COURT'S OPINION, THAT A CONTRARY DECISION
WOULD LEAVE LITTLE OR NOTHING FOR ADMINISTRATIVE COSTS OF THE
BANKRUPTCY PROCEEDING AND THEREFORE WOULD DETER ORDERLY ADMINISTRATION
OF BANKRUPT ESTATES.  I SUSPECT THAT THE FACT OF BANKRUPTCY
ADMINISTRATION OF A VAST NUMBER OF SMALL- OR NO-ASSET CASES IS A
SUFFICIENT REFUTATION OF THAT SUGGESTION. 

I FIND MYSELF IN ACCORD WITH THE VIEWS EXPRESSED BY THE SECOND,
SIXTH, AND NINTH CIRCUITS.  CITY OF NEW YORK V. RASSNER, 127 F.2D 703
(CA2 1942); IN RE AIRLINE-ARISTA PRINTING CORP., 267 F.2D 333 (CA2
1959), AFF'G 156 F.SUPP.  403 (SDNY 1957); HERCULES SERVICE PARTS CORP.
V. UNITED STATES, 202 F.2D 938 (CA6 1953); UNITED STATES V. SAMPSELL,
193 F.2D 154 (CA9 1951).  I WOULD REVERSE. 

RICHARD B. STONE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WALTERS, AND CROMBIE J. D. GARRETT. 

KEVIN J. GILLOGLY ARUGED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS DANIEL C. AHERN. 
..END :
























U.S. V. DISTRICT COURT FOR EAGLE COUNTY, 401 U.S. 520 


       UNITED STATES V. DISTRICT COURT IN AND FOR THE COUNTY OF

           EAGLE ET AL.

        CERTIORARI TO THE SUPREME COURT OF COLORADO

        NO. 87.  ARGUED MARCH 2, 1971-- DECIDED MARCH 24, 1971 


THIS CASE ARISES FROM THE ATTEMPTED JOINDER PURSUANT TO 43 U.S.C. 666
OF THE UNITED STATES AS A DEFENDANT IN A PROCEEDING IN STATE COURT FOR
THE ADJUDICATION OF WATER RIGHTS COVERING THE EAGLE RIVER SYSTEM IN
COLORADO.  UNDER SEC. 666(A) "(CONSENT IS GIVEN TO JOIN THE UNITED
STATES AS A DEFENDANT IN ANY SUIT (1) FOR THE ADJUDICATION OF RIGHTS TO
THE USE OF WATER OF A RIVER SYSTEM OR OTHER SOURCE, OR (2) FOR THE
ADMINISTRATION OF SUCH RIGHTS, WHERE IT APPEARS THAT THE UNITED STATES
(OWNS) OR IS IN THE PROCESS OF ACQUIRING WATER RIGHTS BY APPROPRIATION
UNDER STATE LAW, BY PURCHASE, BY EXCHANGE, OR OTHERWISE . . . . "  THE
UNITED STATES CONTENDED THAT SEC. 666 APPLIES ONLY TO WATER RIGHTS THAT
IT HAD ACQUIRED UNDER STATE LAW AND DOES NOT CONSTITUTE CONSENT TO HAVE
ADJUDICATED IN A STATE COURT THE GOVERNMENT'S RESERVED WATER RIGHTS
ARISING FROM WITHDRAWALS OF LAND FROM THE PUBLIC DOMAIN.  ITS OBJECTION
WAS OVERRULED BY THE TRIAL COURT AND THE COLORADO SUPREME COURT DENIED
THE GOVERNMENT'S MOTION FOR A WRIT OF PROHIBITION.  HELD:  SECTION
666(A) IS AN ALL-INCLUSIVE STATUTORY PROVISION THAT SUBJECTS TO GENERAL
ADJUDICATION IN STATE PROCEEDINGS ALL RIGHTS OF THE UNITED STATES TO
WATER WITHIN A PARTICULAR STATE'S JURISDICTION REGARDLESS OF HOW THEY
WERE ACQUIRED.  ANY CONFLICT BETWEEN ADJUDICATED RIGHTS AND RESERVED
RIGHTS OF THE UNITED STATES, IF PRESERVED IN THE STATE PROCEEDING, CAN
ULTIMATELY BE REVIEWED IN THIS COURT.  PP. 522-526. 

169 COLO. 555, 458 P.2D 760, AFFIRMED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION FOR A UNANIMOUS COURT. 
MR. JUSTICE HARLAN, THOUGH JOINING IN THE OPINION, FILED A CONCURRING
STATEMENT, POST, P. 530. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

EAGLE RIVER IS A TRIBUTARY OF THE COLORADO RIVER; AND WATER DISTRICT
37 IS A COLORADO ENTITY ENCOMPASSING ALL COLORADO LANDS IRRIGATED BY
WATER OF THE EAGLE AND ITS TRIBUTARIES.  THE PRESENT CASE STARTED IN
THE COLORADO COURTS AND IS CALLED A SUPPLEMENTAL WATER ADJUDICATION
UNDER COLO. REV. STAT. ANN. SEC. 148-9-7 (1963).  THE COLORADO COURT
ISSUED A NOTICE WHICH, INTER ALIA, ASKED ALL OWNERS AND CLAIMANTS OF
WATER RIGHTS IN THOSE STREAMS "TO FILE A STATEMENT OF CLAIM AND TO
APPEAR . . . IN REGARD TO ALL WATER RIGHTS OWNED OR CLAIMED BY THEM." 
THE UNITED STATES WAS SERVED WITH THIS NOTICE PURSUANT TO 43 U.S.C.
666.  /1/  THE UNITED STATES MOVED TO BE DISMISSED AS A PARTY,
ASSERTING THT 43 U.S.C. 666 DOES NOT CONSTITUTE CONSENT TO HAVE
ADJUDICATED IN A STATE COURT THE RESERVED WATER RIGHTS OF THE UNITED
STATES. 

THE OBJECTIONS OF THE UNITED STATES WERE OVERRULED BY THE STATE
DISTRICT COURT AND ON A MOTION FOR A WRIT OF PROHIBITION THE COLORADO
SUPREME COURT TOOK THE SAME VIEW.  169 COLO. 555, 458 P.2D 760.  THE
CASE IS HERE ON A PETITION FOR CERTIORARI, WHICH WE GRANTED.  397 U.S.
1005. 

WE AFFIRM THE COLORADO DECREE. 

IT IS CLEAR FROM OUR CASES THAT THE UNITED STATES OFTEN HAS RESERVED
WATER RIGHTS BASED ON WITHDRAWALS FROM THE PUBLIC DOMAIN.  AS WE SAID
IN ARIZONA V. CALIFORNIA, 373 U.S. 546, THE FEDERAL GOVERNMENT HAD THE
AUTHORITY BOTH BEFORE AND AFTER A STATE IS ADMITTED INTO THE UNION "TO
RESERVE WATERS FOR THE USE AND BENEFIT OF FEDERALLY RESERVED LANDS." 
ID., AT 597.  THE FEDERALLY RESERVED LANDS INCLUDE ANY FEDERAL
ENCLAVE.  IN ARIZONA V. CALIFORNIA WE WERE PRIMARILY CONCERNED WITH
INDIAN RESERVATIONS.  ID., AT 598-601.  THE RESERVATION OF WATERS MAY
BE ONLY IMPLIED AND THE AMOUNT WILL REFLECT THE NATURE OF THE FEDERAL
ENCLAVE.  ID., AT AT 600-601.  HERE THE UNITED STATES IS PRIMARILY
CONCERNED WITH RESERVED WATERS FOR THE WHITE RIVER NATIONAL FOREST,
WITHDRAWN IN 1905, COLORADO HAVING BEEN ADMITTED INTO THE UNION IN
1876. 

THE UNITED STATES POINTS OUT THAT COLORADO WATER RIGHTS ARE BASED ON
THE APPROPRIATION SYSTEM WHICH REQUIRES THE PERMANENT FIXING OF RIGHTS
TO THE USE OF WATER AT THE TIME OF THE ADJUDICATION, WITH NO PROVISION
FOR THE FUTURE NEEDS, AS IS OFTEN REQUIRED IN CASE OF RESERVED WATER
RIGHTS.  /2/  IBID.  SINCE THOSE RIGHTS MAY POTENTIALLY BE AT WAR WITH
APPROPRIATIVE RIGHTS, IT IS EARNESTLY URGED THAT 43 U.S.C. 666 GAVE
CONSENT TO JOIN THE UNITED STATES ONLY FOR THE ADJUDICATION OF WATER
RIGHTS WHICH THE UNITED STATES ACQUIRED PURSUANT TO STATE LAW. 

THE CONSENT TO JOIN THE UNITED STATES "IN ANY SUIT (1) FOR THE
ADJUDICATION OF RIGHTS TO THE USE OF WATER OF A RIVER SYSTEM OR OTHER
SOURCE" WOULD SEEM TO BE ALL-INCLUSIVE.  WE DEEM ALMOST FRIVOLOUS THE
SUGGESTION THAT THE EAGLE AND ITS TRIBUTARIES ARE NOT A "RIVER SYSTEM"
WITHIN THE MEANING OF THE ACT.  NO SUIT BY ANY STATE COULD POSSIBLY
ENCOMPASS ALL OF THE WATER RIGHTS IN THE ENTIRE COLORADO RIVER WHICH
RUNS THROUGH OR TOUCHES MANY STATES.  THE "RIVER SYSTEM" MUST BE READ
AS EMBRACING ONE WITHIN THE PARTICULAR STATE'S JURISDICTION.  WITH THAT
TO ONE SIDE, THE FIRST CLAUSE OF SEC. 666(A)(1), READ LITERALLY, WOULD
SEEM TO COVER THIS CASE FOR "RIGHTS TO THE USE OF WATER OF A RIVER
SYSTEM" IS BROAD ENOUGH TO EMBRACE "RESERVED" WATERS. 

THE MAIN RELIANCE OF THE UNITED STATES APPEARS TO BE ON CLAUSE 2 OF
SEC. 666(A) WHICH READS: 

     ". . . FOR THE ADMINISTRATION OF SUCH RIGHTS, WHERE IT APPEARS

THAT THE UNITED STATES IS THE OWNER OF OR IS IN THE PROCESS OF

  ACQUIRING WATER RIGHTS BY APPROPRIATION UNDER STATE LAW, BY

  PURCHASE, BY EXCHANGE, OR OTHERWISE." 

THIS PROVISION DOES NOT QUALIFY SEC. 66(A)(1), FOR (1) AND (2) ARE
SEPARATED BY AN "OR."  YET EVEN IF "OR" BE READ AS "AND," WE SEE NO
DIFFICULTY WITH COLORADO'S POSITION.  SECTION 666(A)(2) OBVIOUSLY
INCLUDES WATER RIGHTS PREVIOUSLY ACQUIRED BY THE UNITED STATES THROUGH
APPROPRIATION OR PRESENTLY IN THE PROCESS OF BEING SO ACQUIRED.  BUT WE
DO NOT READ SEC. 666(A)(2) AS BEING RESTRICTED TO APPROPRIATIVE RIGHTS
ACQUIRED UNDER STATE LAW.  INTHE FIRST PLACE "THE ADMINISTRATION OF
SUCH RIGHTS" IN SEC. 666(A)(2) MUST REFER TO THE RIGHTS DESCRIBED IN
(1) FOR THEY ARE THE ONLY ONES WHICH IN THIS CONTEXT "SUCH" COULD MEAN;
AND AS WE HAVE SEEN THEY ARE ALL-INCLUSIVE, IN TERMS AT LEAST. 
MOREOVER, (2) COVERS RIGHTS ACQUIRED BY APPROPRIATION UNDER STATE LAW
AND RIGHTS ACQUIRED "BY PURCHASE" OR "BY EXCHANGE," WHICH WE ASSUME
WOULD NORMALLY BE APPROPRIATIVE RIGHTS.  BUT IT ALSO INCLUDES WATER
RIGHTS WHICH THE UNITED STATES HAS "OTHERWISE" ACQUIRED.  THE DOCTRINE
OF EJUSDEM GENERIS IS INVOKED TO MAINTAIN THAT "OR OTHERWISE" DOES NOT
ENCOMPASS THE ADJUDICATION OF RESERVED WATER RIGHTS, WHICH ARE IN NO
WAY DEPENDENT FOR THEIR CREATION OR EXISTENCE ON STATE LAW.  /3/  WE
REJECT THAT CONCLUSION FOR WE DEAL WITH AN ALL-INCLUSIVE STATUTE
CONCERNING "THE ADJUDICATION OF RIGHTS TO THE USE OF WATER OF A RIVER
SYSTEM" WHICH IN SEC. 666(A)(1) HAS NO EXCEPTIONS AND WHICH, AS WE READ
IT, INCLUDES APPROPRIATIVE RIGHTS, RIPARIAN RIGHTS, AND RESERVED
RIGHTS. 

IT IS SAID THAT THIS ADJUDICATION IS NOT A "GENERAL" ONE AS REQUIRED
BY DUGAN V. RANK, 372 U.S. 609, 618.  THIS PROCEEDING, UNLIKE THE ONE
IN DUGAN, IS NOT A PRIVATE ONE TO DETERMINE WHETHER NAMED CLAIMANTS
HAVE PRIORITY OVER THE UNITED STATES.  THE WHOLE COMMUNITY OF CLAIMS IS
INVOLVED AND AS SENATOR MCCARRAN, CHAIRMAN OF THE COMMITTEE REPORTING
ON THE BILL, SAID IN REPLY TO SENATOR MAGNUSON:  /4/  "S. 18 IS NOT
INTENDED . . . TO BE USED FOR ANY OTHER PURPOSE THAN TO ALLOW THE
UNITED STATES TO BE JOINED IN A SUIT WHEREIN IT IS NECESSARY TO
ADJUDICATE ALL OF THE RIGHTS OF VARIOUS OWNERS ON A GIVEN STREAM.  THIS
IS SO BECAUSE UNLESS ALL OF THE PARTIES OWNING OR IN THE PROCESS OF
ACQUIRING WATER RIGHTS ON A PARTICULAR STREAM CAN BE JOINED AS PARTIES
DEFENDANT, ANY SUBSEQUENT DECREE WOULD BE OF LITTLE VALUE." 

IT IS SAID, HOWEVER, THAT SINCE THIS IS A SUPPLEMENTAL ADJUDICATION
ONLY THOSE WHO CLAIM WATER RIGHTS ACQUIRED SINCE THE LAST ADJUDICATION
OF THAT WATER DISTRICT ARE BEFORE THE COURT.  /5/  IT IS ALSO SAID THAT
THE EARLIEST PRIORITY DATE DECREED IN SUCH AN ADJUDICATION MUST BE
LATER THAN THE LAST PRIORITY DATE DECREED IN THE PRECEDING
ADJUDICATION.  /6/  THE LAST WATER ADJUDICATION IN THIS WATER
DISTRICT.  THE UNITED STATES ACCORDINGLY SAYS THAT SINCE THE UNITED
STATES CANNOT BE BARRED BY THE PREVIOUS DECREES AND SINCE THE OWNERS OF
PREVIOUSLY DECREED RIGHTS ARE NOT BEFORE THE COURT, THE CONSENT
ENVISAGED BY 43 U.S.C. 666 IS NOT PRESENT. 

WE THINK THAT ARGUMENT IS EXTREMELY TECHNICAL; AND WE DECLINE TO
CONFINE 43 U.S.C. 666 SO NARROWLY.  THE ABSENCE OF OWNERS OF PREVIOUSLY
DECREED RIGHTS MAY PRESENT PROBLEMS GOING TO THE MERITS, IN CASE THERE
DEVELOPS A COLLISION BETWEEN THEM AND ANY RESERVED RIGHTS OF THE UNITED
STATES.  /7/  ALL SUCH QUESTIONS, INCLUDING THE VOLUME AND SCOPE OF
PARTICULAR RESERVED RIGHTS, ARE FEDERAL QUESTIONS WHICH, IF PRESERVED,
CAN BE REVIEWED HERE AFTER FINAL JUDGMENT BY THE COLORADO COURT. 

              AFFIRMED. 

/1/  66 STAT. 560, 43 U.S.C. 666(A), PROVIDES: 

"CONSENT IS GIVEN TO JOIN THE UNITED STATES AS A DEFENDANT IN ANY
SUIT (1) FOR THE ADJUDICATION OF RIGHTS TO THE USE OF WATER OF A RIVER
SYSTEM OR OTHER SOURCE, OR (2) FOR THE ADMINISTRATION OF SUCH RIGHTS,
WHERE IT APPEARS THAT THE UNITED STATES IS THE OWNER OF OR IS IN THE
PROCESS OF ACQUIRING WATER RIGHTS BY APPROPRIATION UNDER STATE LAW, BY
PURCHASE, BY EXCHANGE, OR OTHERWISE, AND THE UNITED STATES IS A
NECESSARY PARTY TO SUCH SUIT.  THE UNITED STATES, WHEN A PARTY TO ANY
SUCH SUIT, SHALL (1) BE DEEMED TO HAVE WAIVED ANY RIGHT TO PLEAD THAT
THE STATE LAWS ARE INAPPLICABLE OR THAT THE UNITED STATES IS NOT
AMENABLE THERETO BY REASON OF ITS SOVEREIGNTY, AND (2) SHALL BE SUBJECT
TO THE JUDGMENTS, ORDERS, AND DECREES OF THE COURT HAVING JURISDICTION,
AND MAY OBTAIN REVIEW THEREOF, IN THE SAME MANNER AND TO THE SAME
EXTENT AS A PRIVATE INDIVIDUAL UNDER LIKE CIRCUMSTANCES:  PROVIDED,
THAT NO JUDGMENT FOR COSTS SHALL BE ENTERED AGAINST THE UNITED STATES
IN ANY SUCH SUIT." 

/2/  SEE COFFIN V. LEFT HAND DITCH CO., 6 COLO. 443, 446; MASON V.
HILLS LAND & CATTLE CO., 119 COLO. 404, 204 P.2D 153. 

/3/  SEE COMMENT, 48 CALIF.L.REV.  94, 111 (1960). 

/4/  S. REP. NO. 755, 82D CONG., 1ST SESS., 9.  AND SEE PACIFIC LIVE
STOCK CO. V. OREGON WATER BED., 241 U.S. 440, 448. 

/5/  COLO. REV. STAT. ANN. SEC. 148-9-7. 

/6/  ID., SEC. 148-9-13. 

/7/  THE COLORADO COURT STATED: 

"WE ARE NOT DETERMINING WHETHER THE UNITED STATES HAS RESERVED WATER
RIGHTS IN CONNECTION WITH LANDS WITHDRAWN SUBSEQUENT TO AUGUST 1, 1876,
THE DATE OF COLORADO'S ADMISSION TO THE UNION; NOR, IF SO, WHETHER
THESE RIGHTS HAVE PRIORITY OVER PREVIOUSLY ADJUDICATED RIGHTS.  THESE
QUESTIONS PROPERLY SHOULD BE DECIDED AFTER THE UNITED STATES PRESENTS
ITS SPECIFIC CLAIMS FOR ADJUDICATION AND THE ISSUES OF FACT AND LAW ARE
CLEARLY DRAWN."  169 COLO.,AT 577, 458 P.2D, AT 770. 

(FOR CONCURRING STATEMENT OF MR. JUSTICE HARLAN, SEE POST, P. 530.) 

DEPUTY ASSISTANT ATTORNEY GENERAL KIECHEL ARGUED THE CAUSE FOR THE
UNITED STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL KASHIWA, FRANCIS X. BEYTAGH, JR., EDMUND B.
CLARK, AND CHARLES N. WOODRUFF. 

KENNETH BALCOMB ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE ROBERT L. MCCARTY, GEORGE L. ZOELLNER, DON H. SHERWOOD, AND
RAPHAEL J. MOSES. 

BRIEFS OF AMICI CURIAE WERE FILED BY GARY K. NELSON, ATTORNEY
GENERAL, AND IRVING A. JENNINGS FOR THE STATE OF ARIZONA ET AL.; BY
THOMAS C. LYNCH, ATTORNEY GENERAL, WALTER S. ROUNTREE, ASSISTANT
ATTORNEY GENERAL AND DAVID B. STANTON, DEPUTY ATTORNEY GENERAL, FOR THE
STATE OF CALIFORNIA; BY DUKE W. DUNBAR, ATTORNEY GENERAL OF COLORADO,
LEE JOHNSON, ATTORNEY GENERAL OF OREGON, HARVEY DICKERSON, ATTORNEY
GENERAL OF NEVADA, ROBERT M. ROBSON, ATTORNEY GENERAL OF IDAHO, ROBERT
L. WOODAHL, ATTORNEY GENERAL OF MONTANA, AND G. KENT EDWARDS, ATTORNEY
GENERAL OF ALASKA, FOR THE STATES OF COLORADO ET AL.; BY G. T.
BLANKENSHIP, ATTORNEY GENERAL, AND W. HOWARD O'BRYAN, JR., ASSISTANT
ATTORNEY GENERAL, FOR THE STATE OF OKLAHOMA; BY VERNON B. ROMNEY,
ATTORNEY GENERAL, ROBERT B. HANSEN, DEPUTY ATTORNEY GENERAL, AND DALLIN
W. JENSEN, ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF UTAH; BY SLADE
GORTON, ATTORNEY GENERAL, AND CHARLES B. ROE, JR., AND HENRY W. IPSEN,
ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF WASHINGTON; AND BY JAMES
E. BARRETT, ATTORNEY GENERAL, STERLING A. CASE, DEPUTY ATTORNEY
GENERAL, AND JACK R. GAGE, SPECIAL ASSISTANT ATTORNEY GENERAL, FOR THE
STATE OF WYOMING. 
..END :














U.S. V. DISTRICT COURT FOR WATER DIV. NO. 5, 401 U.S. 527 


       UNITED STATES V. DISTRICT COURT IN AND FOR WATER DIVISION

           NO. 5 ET AL.

        CERTIORARI TO THE SUPREME COURT OF COLORADO

        NO. 812.  ARGUED MARCH 2, 1971-- DECIDED MARCH 24, 1971 


IN THIS COMPANION CASE TO U.S. V. DISTRICT COURT FOR EAGLE COUNTY,
ANTE, P. 520, THE UNITED STATES HAD BEEN SERVED WITH NOTICE PURSUANT TO
43 U.S.C. 666 OF A PROCEEDING IN STATE COURT FOR THE ADJUDICATION OF
WATER RIGHTS AFFECTING AREAS OF THE STATE IN THE DRAINAGE BASINS OF THE
COLORADO RIVER SYSTEM.  IN ADDITION TO ITS CLAIM THAT SEC. 666 DOES NOT
APPLY TO STATE COURT SUITS AGAINST THE GOVERNMENT FOR ADJUDICATION OF
ITS RESERVED WATER RIGHTS, THE GOVERNMENT CONTENDED THAT THE STATE
STATUTORY PROCEEDINGS INVOLVED IN THIS CASE, WHICH CONTEMPLATED MONTHLY
PROCEEDINGS BEFORE A WATER REFEREE ON WATER RIGHTS APPLICATIONS FILED
WITHIN A PARTICULAR MONTH, DO NOT CONSTITUTE GENERAL ADJUDICATIONS OF
WATER RIGHTS UNDER SEC. 666 BECAUSE ALL THE WATER USERS AND ALL WATER
RIGHTS ON A STREAM SYSTEM ARE NOT IMPLICATED IN THE REFEREE'S
DETERMINATIONS.  THE GOVERNMENT'S CONTENTIONS WERE REJECTED BY THE
STATE COURTS. 

HELD: 

1.  THE STATE COURT HAS JURISDICTION TO ADJUDICATE THE RESERVED
WATER RIGHTS OF THE UNITED STATES.  EAGLE COUNTY, SUPRA.  P. 529. 

2.  THE STATE STATUTORY PROCEEDINGS ARE WITHIN THE SCOPE OF SEC. 666
AND REACH ALL CLAIMS IN THEIR TOTALITY, ALTHOUGH THE ADJUDICATION IS
MADE ON A MONTHLY BASIS.  PP. 529-530. 

AFFIRMED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION FOR A UNANIMOUS COURT. 
MR. JUSTICE HARLAN, THOUGH JOINING IN THE OPINION, FILED A CONCURRING
STATEMENT, POST, P. 530. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO THE EAGLE COUNTY CASE, ANTE, P. 520, AND
INVOLVES AN ACTION BROUGHT UNDER A DIFFERENT STATE STATUTE /1/  IN THE
DISTRICT COURT OF COLORADO FOR WATER DIVISION NO. 5.  /2/  THAT COURT
WAS GIVEN RESPONSIBILITY FOR WATER RIGHTS DETERMINATIONS AFFECTING "ALL
LANDS IN THE STATE OF COLORADO IN THE DRAINAGE BASINS OF THE COLORADO
RIVER AND ALL OF ITS TRIBUTARIES ARISING WITHIN COLORADO, WITH THE
EXCEPTION OF THE GUNNISON RIVER,"  /3/  WHICH INCLUDES THE AREA OF THE
EAGLE RIVER SYSTEM. 

NOTICE WAS SERVED ON THE UNITED STATES PURSUANT TO 43 U.S.C. 666(B)
AND IT MOVED TO QUASH THE SERVICE.  THAT MOTION WAS DENIED.  A WRIT OF
PROHIBITION WAS SOUGHT IN THE SUPREME COURT AND IT WAS ALSO DENIED. 
THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED.  400 U.S. 940. 

THE AREA COVERED BY THIS SUIT INCLUDES VASTLY MORE EXTENSIVE WATER
RIGHTS THAN THOSE INVOLVED IN THE EAGLE COUNTY CASE.  THE FOREST
SERVICE ADMINISTERS FOUR SEPARATE NATIONAL FORESTS IN THE AREA:  THE
WHITE RIVER, ARAPAHO, ROUTT, AND GRAND MESA-UNCOMPAHGRE.  THE
DEPARTMENT OF THE INTERIOR, THROUGH THE BUREAU OF RECLAMATION, THE
NATIONAL PARK SERVICE, THE BUREAU OF LAND MANAGEMENT, THE BUREAU OF
MINES, AND THE BUREAU OF SPORT FISHERIES AND WILDLIFE, MAKES USE OF
WATER IN WATER DIVISION NO. 5 FOR NATIONAL RECREATIONAL AND OVER
PURPOSES.  THE DEPARTMENT OF THE NAVY ADMINISTERS CERTAIN NAVAL
PETROLEUM AND OIL SHALE RESERVES WHICH, IF EVER DEVELOPED, WOULD
REQUIRE WATER TO ACCOMPLISH THE FEDERAL PURPOSE FOR WHICH THE
RESERVATIONS WERE MADE. 

THE MAJOR ISSUE-- THE SCOPE OF THE CONSENT-TO-BE-SUED PROVISION IN
43 U.S.C. 666-- HAS BEEN COVERED IN THE EAGLE COUNTY OPINION AND NEED
NOT BE REPEATED HERE. 

IT IS EMPHASIZED, HOWEVER, THAT THE PROCEDURES UNDER THE NEW ACT ARE
MUCH MORE BURDENSOME ON THE GOVERNMENT THAN THEY WERE UNDER THE OLDER
ACT.  IT IS POINTED OUT THAT THE NEW STATUTE CONTEMPLATES MONTHLY
PROCEEDINGS BEFORE A WATER REFEREE ON WATER RIGHTS APPLICATIONS.  THESE
PROCEEDINGS, IT IS ARGUED, DO NOT CONSTITUTE GENERAL ADJUDICATIONS OF
WATER RIGHTS BECAUSE ALL THE WATER USERS AND ALL WATER RIGHTS ON A
STREAM SYSTEM ARE NOT INVOLVED IN THE REFEREE'S DETERMINATIONS.  THE
ONLY WATER RIGHTS CONSIDERED IN THE PROCEEDING ARE THOSE FOR WHICH AN
APPLICATION HAS BEEN FILED WITHIN A PARTICULAR MONTH.  IT IS ALSO SAID
THAT THE ACT MAKES ALL WATER RIGHTS CONFIRMED UNDER THE NEW PROCEDURE
JUNIOR TO THOSE PREVIOUSLY AWARDED. 

IT IS ARGUED FROM THOSE PREMISES THAT THE PROCEEDING DOES NOT
CONSTITUTE A GENERAL ADJUDICATION WHICH 43 U.S.C. 666 CONTEMPLATED.  AS
WE SAID IN THE EAGLE COUNTY CASE, THE WORDS "GENERAL ADJUDICATION" WERE
USED IN DUGAN V. RANK, 372 U.S. 609, 618, TO INDICATE THAT 43 U.S.C.
666 DOES NOT COVER CONSENT BY THE UNITED STATES TO BE SUED IN A PRIVATE
SUIT TO DETERMINE ITS RIGHTS AGAINST A FEW CLAIMANTS.  THE PRESENT
SUIT, LIKE THE ONE IN THE EAGLE COUNTY CASE, REACHES ALL CLAIMS,
PERHAPS MONTH BY MONTH BUT INCLUSIVELY IN THE TOTALITY; AND, AS WE SAID
IN THE OTHER CASE, IF THERE IS A COLLISION BETWEEN PRIOR ADJUDICATED
RIGHTS AND RESERVED RIGHTS OF THE UNITED STATES, THE FEDERAL QUESTION
CAN BE PRESERVED IN THE STATE DECISION AND BROUGHT HERE FOR REVIEW. 

              AFFIRMED. 

/1/  THE COLORADO WATER RIGHTS DETERMINATION AND ADMINISTRATION ACT
OF 1969, COLO. REV. STAT. ANN. SEC. 148-21-1 ET SEQ., COLO. REV. STAT.
ANN. SEC. 148-21-18(3) (SUPP. 1969). 

/2/  THE 1969 ACT HERE IN QUESTION ABOLISHED THE 70 WATER DISTRICTS
PREVIOUSLY EXISTING AND REPLACED THEM WITH SEVEN WATER DIVISIONS. 

/3/  COLO. REV. STAT. ANN. SEC. 148-21-8(6). 

MR. JUSTICE HARLAND, CONCURRING.  /1/ 

I JOIN IN THE OPINIONS OF THE COURT IN THESE CASES, EXPLICITLY
DISCLAIMING, HOWEVER, THE INTIMATION OF ANY VIEW AS TO THE EXISTENCE
AND SCOPE OF THE SO-CALLED "RESERVED WATER RIGHTS" OF THE UNITED
STATES, EITHER IN GENERAL OR IN THE PARTICULAR SITUATIONS HERE
INVOLVED. 

/1/  THIS STATEMENT APPLIES ALSO TO NO. 87, UNITED STATES V.
DISTRICT COURT IN AND FOR THE COUNTY OF EAGLE ET AL., ANTE, P. 520. 

DEPUTY ASSISTANT ATTORNEY GENERAL KIECHEL ARGUED THE CAUSE FOR THE
UNITED STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL KASHIWA, SAMUEL HUNTINGTON, AND EDMUND B.
CLARK. 

KENNETH BALCOMB ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS ROBERT L. MCCARTY. 
..END :











RADICH V. NEW YORK, 401 U.S. 531 


       RADICH V. NEW YORK

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 169.  ARGUED FEBRUARY 22, 1971-- DECIDED MARCH 24,
1971 


26 N.Y.2D 114, 257 N.E.2D 30, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

RICHARD G. GREEN ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE SHIRLEY FINGERHOOD AND MELVIN L. WULF. 

MICHAEL R. JUVILER ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE FRANK S. HOGAN AND WILLIAM C. DONNINO. 

JOHN B. HIGHTOWER ET AL. FILED A BRIEF AS AMICUS CURIAE URGING
REVERSAL. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ,
FIRST ASSISTANT ATTORNEY GENERAL, AND MARIA L. MARCUS, ASSISTANT
ATTORNEY GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL OF NEW YORK AS
AMICUS CURIAE URGING AFFIRMANCE. 
..END :




















SCHLANGER V. SEAMANS, 401 U.S. 487 


       SCHLANGER V. SEAMANS, SECRETARY OF THE AIR FORCE, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 5481.  ARGUED FEBRUARY 22, 1971-- DECIDED MARCH 23,

1971 


THE DISTRICT COURT FOR THE DISTRICT OF ARIZONA DID NOT HAVE
JURISDICTION TO ENTERTAIN A HABEAS CORPUS APPLICATION BY AN AIR FORCE
ENLISTED MAN IN ARIZONA ON TEMPORARY DUTY ORDERS, AS NO CUSTODIAN,
NEITHER THE COMMANDING OFFICER AT MOODY AIR FORCE BASE IN GEORGIA NOR
ANYONE IN THE CHAIN OF COMMAND, WAS A RESIDENT OF ARIZONA.  PP. 488
492. 

AFFIRMED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED. 
HARLAN, J., CONCURRED IN THE RESULT.  STEWART, J., DISSENTED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION IN THIS CASE IS WHETHER THE DISTRICT COURT FOR THE
DISTRICT OF ARIZONA HAD JURISDICTION TO ENTERTAIN ON THE MERITS
PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS.  HE IS AN
ENLISTED MAN WHO WAS ACCEPTED IN THE AIRMAN'S EDUCATION AND
COMMISSIONING PROGRAM, AN OFFICER TRAINING PROJECT AND WAS ASSIGNED TO
WRIGHT-PATTERSON AIR FORCE BASE (AFB), OHIO "WITH DUTY AT ARIZONA STATE
UNIVERSITY" FOR TRAINING.  WHILE STUDYING IN ARIZONA AND BEFORE
COMPLETION OF THE COURSE, HE WAS REMOVED FROM THE PROGRAM, ALLEGEDLY
FOR ENGAGING IN CIVIL RIGHTS ACTIVITIES ON THE CAMPUS. 

WHILE HE WAS SEEKING ADMINISTRATIVE RELIEF THROUGH COMMAND CHANNELS,
HE WAS REASSIGNED TO MOODY AFB, GEORGIA, TO COMPLETE THE REMAINDER OF
HIS SIX-YEAR REENLISTMENT IN A NONCOMMISSIONED STATUS.  AFTER
EXHAUSTING THOSE REMEDIES HE WAS GIVEN PERMISSIVE TEMPORARY DUTY TO
ATTEND ARIZONA STATE FOR STUDY, THIS TIME BY HIS SUPERIORS AT MOODY AFB
UNDER A DIFFERENT PROGRAM CALLED OPERATION BOOTSTRAP, AND AT HIS OWN
EXPENSE.  /1/ 

THEREAFTER /2/  HE FILED HIS APPLICATION FOR HABEAS CORPUS IN
ARIZONA ALLEGING THAT HIS ENLISTMENT CONTRACT HAD BEEN BREACHED AND
THAT HE WAS BEING DETAINED UNLAWFULLY.  THE DISTRICT COURT DENIED THE
APPLICATION.  THE COURT OF APPEALS AFFIRMED ON THE BASIS OF JARRETT V.
RESOR, 426 F.2D 213.  THE CASE IS HERE ON A PETITION FOR CERTIORARI
WHICH WE GRANTED.  400 U.S. 865. 

THE RESPONDENTS TO THIS SUIT ARE THE SECRETARY OF THE AIR FORCE, THE
COMMANDER OF MOODY AFB, AND THE COMMANDER OF THE AF ROTC PROGRAM ON THE
ARIZONA STATE CAMPUS.  THE LAST RESPONDENT WAS THE ONLY ONE OF THE
THREE PRESENT IN ARIZONA AND HE HAD NO CONTROL OVER PETITIONER WHO
CONCEDEDLY WAS NOT IN HIS CHAIN OF COMMAND, SINCE PETITIONER WAS NOT IN
THE AF ROTC PROGRAM, BUT IN OPERATION BOOTSTRAP.  THE COMMANDING
OFFICER AT MOODY AFB IN GEORGIA DID HAVE CUSTODY AND CONTROL OVER
PETITIONER; BUT HE WAS NEITHER A RESIDENT OF THE ARIZONA JUDICIAL
DISTRICT NOR AMENABLE TO ITS PROCESS. 

IT IS TRUE, OF COURSE, THAT THE COMMANDING OFFICER AT MOODY AFB
EXERTED CONTROL OVER PETITIONER IN THE SENSE THAT HIS ARM WAS LONG AND
PETITIONER WAS EFFECTIVELY SUBJECT TO HIS ORDERS AND DIRECTIONS.  THERE
ARE CASES WHICH SUGGEST THAT SUCH CONTROL TO ESTABLISH CUSTODY MAY BE
ADEQUATE FOR HABEAS CORPUS JURISDICTION EVEN THOUGH THE CONTROL IS
EXERCISED FROM A POINT LOCATED OUTSIDE THE STATE, AS LONG AS THE
PETITIONER IS IN THE DISTRICT OR THE STATE.  DONIGIAN V. LAIRD, 308
F.SUPP.  449.  FOR REASONS TO BE STATED, WE DO NOT REACH THAT
QUESTION. 

THE PROCEDURE GOVERNING ISSUANCE OF THE WRIT IS PROVIDED BY
STATUTE.  THE FEDERAL COURTS MAY GRANT THE WRIT "WITHIN THEIR
RESPECTIVE JURISDICTIONS."  28 U.S.C. 2241(A).  WHILE THE ACT SPEAKS OF
"A PRISONER" (28 U.S.C. 2241(C)), THE TERM HAS BEEN LIBERALLY CONSTRUED
TO INCLUDE MEMBERS OF THE ARMED SERVICES WHO HAVE BEEN UNLAWFULLY
DETAINED, RESTRAINED, OR CONFINED.  EAGLES V. SAMUELS 329 U.S. 304,
312.  THE ACT EXTENDS TO THOSE "IN CUSTODY UNDER OR BY COLOR OF THE
AUTHORITY OF THE UNITED STATES."  28 U.S.C. 2241(C)(1).  THE QUESTION
IN THE INSTANT CASE IS WHETHER ANY CUSTODIAN, OR ONE IN THE CHAIN OF
COMMAND, AS WELL AS THE PERSON DETAINED, MUST BE IN THE TERRITORIAL
JURISDICTION OF THE DISTRICT COURT. 

IN AHRENS V. CLARK, 335 U.S. 188, WE HELD THAT IT WAS NOT SUFFICIENT
IF THE CUSTODIAN ALONE BE FOUND IN THE JURISDICTION WHERE THE PERSONS
DETAINED WERE OUTSIDE THE JURISDICTION /3/  AND THAT JURISDICTION OVER
THE RESPONDENT WAS TERRITORIAL.  /4/  THE DISSENT IN THAT CASE THOUGHT
THAT THE CRITICAL ELEMENT WAS NOT WHERE THE APPLICANT WAS CONFINED BUT
WHERE THE CUSTODIAN WAS LOCATED; THAT IF THE CUSTODIAN WERE IN THE
TERRITORIAL JURISDICTION OF THE DISTRICT COURT, THEN APPROPRIATE RELIEF
COULD BE EFFECTED. 

WHICHEVER VIEW IS TAKEN OF THE PROBLEM IN AHRENS V. CLARK, THE CASE
IS OF LITTLE HELP HERE.  FOR WHILE PETITIONER IS WITHIN THE TERRITORIAL
JURISDICTION OF THE DISTRICT COURT, THE CUSTODIAN-- THE COMMANDER OF
MOODY AFB-- IS NOT.  IN OTHER WORDS, EVEN UNDER THE MINORITY VIEW IN
AHRENS V. CLARK, THE DISTRICT COURT IN ARIZONA HAS NO CUSTODIAN WITHIN
ITS REACH AGAINST WHOM ITS WRIT CAN RUN.  HENCE, EVEN IF WE ASSUME THAT
PETITIONER IS "IN CUSTODY" /5/  IN AIRZONA IN THE SENSE THAT HE IS
SUBJECT TO MILITARY ORDERS AND CONTROL WHICH ACT AS A RESTRAINT ON HIS
FREEDOM OF MOVEMENT (JONES V. CUNNINGHAM, 371 U.S. 236, 240), THE
ABSENCE OF HIS CUSTODIAN IS FATAL TO THE JURISDICTION OF THE ARIZONA
DISTRICT COURT.  CF. RUDICK V. LAIRD, 412 F.2D 16, 21. 

HAD PETITIONER, AT THE TIME OF THE FILING OF THE PETITION, BEEN
UNDER THE COMMAND OF THE AIR FORCE OFFICER ASSIGNED AS LIAISON OFFICER
AT ARIZONA STATE TO SUPERVISE THE EDUCATION AND COMMISSIONING PROGRAM,
WE WOULD HAVE A DIFFERENT QUESTION.  WE DO NOT REACH IT NOR DO WE REACH
ANY ASPECTS OF THE MERITS, VIZ., WHETHER, IF PETITIONER BE RIGHT IN
CONTENDING THAT HIS CONTRACT OF ENLISTMENT WAS BREACHED, HABEAS CORPUS
IS THE APPROPRIATE REMEDY. 

           AFFIRMED. 

/1/  HEADQUARTERS AT MOODY AFB ASSIGNED PETITIONER TO TEMPORARY DUTY
AT ARIZONA STATE UNIVERSITY.  BY ITS TERMS, THE ORDER "ERMITTED
(PETITIONER) TO PROCEED FROM MOODY AFB, GA. TO ARIZONA STATE
UNIVERSITY, TEMPE, AZ, EFFECTIVE ON OR ABOUT 4 JUNE 1969 FOR
APPROXIMATELY 70 DAYS FOR THE PURPOSE OF ATTENDING THE UNIVERSITY UNDER
OPERATION BOOTSTRAP AND THEN RETURN TO MOODY AFB, GA."  THE TRAVEL
AUTHORIZED WAS BE "AT NO EXPENSE TO THE GOVERNMENT." 

PETITIONER ATTENDED ARIZONA STATE IN THE SUMMER OF 1969 AND OBTAINED
HIS DEGREE. 

/2/  THIS ACTION WAS STARTED SHORTLY AFTER PETITIONER HAD OBTAINED HIS
DEGREE AT ARIZONA STATE AND WHILE HE WAS STILL IN ARIZONA. 

/3/  SHORTLY THEREAFTER CONGRESS PROVIDED THAT A PRISONER, NO MATTER
WHERE HELD, COULD BY MOTION INVOKE THE JURISDICTION OF THE SENTENCING
COURT AND BE RELEASED ON A SHOWING THAT THE SENTENCE WAS UNLAWFUL.  28
U.S.C. 2255.  SEE UNITED STATES V. HAYMAN, 342 U.S. 205, 220; KAUFMAN
V. UNITED STATES, 394 U.S. 217. 

LATER CONGRESS MADE AN EXCEPTION TO THE JURISDICTIONAL REQUIREMENT
NOTED IN AHRENS BY ALLOWING A STATE PRISONER TO SEEK HABEAS CORPUS IN
THE DISTRICT WHERE HE WAS SENTENCED, AS WELL AS IN THE DISTRICT WHERE
HE IS CONFINED, PROVIDED BOTH ARE WITHIN THE SAME STATE.  28 U.S.C.
2241(D) (1964 ED., SUPP. V).  AS RESPECTS THAT AMENDMENT THE COURT SAID
IN NELSON V. GEORGE, 399 U.S. 224, 228 N. 5: 

"THE LEGISLATIVE HISTORY OF THE 1966 AMENDMENTS TO 28 U.S.C. 2241(D)
(1964 ED., SUPP. V) SUGGESTS THAT CONGRESS MAY HAVE INTENDED TO ENDORSE
AND PRESERVE THE TERRITORIAL RULE OF AHRENS TO THE EXTENT THAT IT WAS
NOT ALTERED BY THOSE AMENDMENTS.  SEE H.R. REP. NO. 1894, 89TH CONG.,
2D SESS., 1-2 (1966).  SEE ALSO S. REP. NO. 1502, 89TH CONG., 2D SESS.
(1966)." 

/4/  ALTHOUGH BY 28 U.S.C. 1391(E) (1964 ED., SUPP. V), CONGRESS HAS
PROVIDED FOR NATIONWIDE SERVICE OF PROCESS IN A "CIVIL ACTION IN WHICH
EACH DEFENDANT IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES," THE
LEGISLATIVE HISTORY OF THAT SECTION IS BARREN OF ANY INDICATION THAT
CONGRESS EXTENDED HABEAS CORPUS JURISDICTION.  THAT SECTION WAS ENACTED
TO BROADEN THE VENUE OF CIVIL ACTIONS WHICH COULD PREVIOUSLY HAVE BEEN
BROUGHT ONLY IN THE DISTRICT OF COLUMIBA.  SEE H.R. REP. NO. 536, 87TH
CONG., 1ST SESS., 1; S. REP. NO. 1992, 87TH CONG., 2D SESS., 2.  THOUGH
HABEAS CORPUS IS TECHNICALLY "CIVIL," IT IS NOT AUTOMATICALLY SUBJECT
TO ALL THE RULES GOVERNING ORDINARY CIVIL ACTIONS.  SEE HARRIS V.
NELSON, 394 U.S. 286. 

/5/  THE CONCEPT OF "CUSTODY" HAS BEEN AN EVOLVING ONE AS JUDGE
NORTHROP SHOWS IN DONIGIAN V. LAIRD, 308 F.SUPP.  449, 451.  AND SEE
PEYTON V. ROWE, 391 U.S. 54, 64-66.  IN JONES V. CUNNINGHAM, 371 U.S.
236, 238, 240, 243, WE SAID: 

"WHILE LIMITING ITS AVAILABILITY TO THOSE 'IN CUSTODY,' THE STATUTE
DOES NOT ATTEMPT TO MAKR THE BOUNDARIES OF 'CUSTODY' NOR IN ANY WAY
OTHER THAN BY USE OF THAT WORD ATTEMPT TO LIMIT THE SITUATIONS IN WHICH
THE WRIT CAN BE USED . . .

        .          .          .   . 

"HISTORY, USAGE, AND PRECEDENT CAN LEAVE NO DOUBT THAT, BESIDES
PHYSICAL IMPRISONMENT, THERE ARE OTHER RESTRAINTS ON A MAN'S LIBERTY,
RESTRAINTS NOT SHARED BY THE PUBLIC GENERALLY, WHICH HAVE BEEN THOUGHT
SUFFICIENT IN THE ENGLISH-SPEAKING WORLD TO SUPPORT THE ISSUANCE OF
HABEAS CORPUS . . .

.          .          .          . 

"IT (THE GREAT WRIT) IS NOT NOW AND NEVER HAS BEEN A STATIC, NARROW,
FORMALISTIC REMEDY; ITS SCOPE HAS GROWN TO ACHIEVE ITS GRAND PURPOSE--
THE PROTECTION OF INDIVIDUALS AGAINST EROSION OF THEIR RIGHT TO BE FREE
FROM WRONGFUL RESTRAINTS UPON THEIR LIBERTY.  WHILE PETITIONER'S PAROLE
RELEASES HIM FROM IMMEDIATE PHYSICAL IMPRISONMENT, IT IMPOSES
CONDITIONS WHICH SIGNIFICANTLY CONFINE AND RESTRAIN HIS FREEDOM; THIS
IS ENOUGH TO KEEP HIM IN THE 'CUSTODY' OF THE MEMBERS OF THE VIRGINIA
PAROLE BOARD WITHIN THE MEANING OF THE HABEAS CORPUS STATUTE; IF HE CAN
PROVE HIS ALLEGATIONS THIS CUSTODY IS IN VIOLATION OF THE CONSTITUTION,
AND IT WAS THEREFORE ERROR FOR THE COURT OF APPEALS TO DISMISS HIS CASE
AS MOOT INSTEAD OF PERMITTING HIM TO ADD THE PAROLE BOARD MEMBERS AS
RESPONDENTS." 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE STEWART DISSENTS. 

HERBERT P. SCHLANGER, PETITIONER, ARGUED THE CAUSE AND FILED A BRIEF
PRO SE. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR RESPONDENTS.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL GRAY, MORTON
HOLLANDER, AND ROBERT E. KOPP. 

MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION
AS AMICUS CURIAE URGING REVERSAL. 
..END :




















OHIO V. WYANDOTTE CHEMICALS CORP., 401 U.S. 493 


       OHIO V. WYANDOTTE CHEMICALS CORP. ET AL.

MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

        NO. 41, ORIG.  ARGUED JANUARY 18, 1971-- DECIDED MARCH 23,

     1971 


THE STATE OF OHIO FILED A MOTION FOR LEAVE TO FILE A BILL OF
COMPLAINT INVOKING THE COURT'S ORIGINAL JURISDICTION AGAINST DEFENDANT
COMPANIES, INCORPORATED IN MICHIGAN, DELAWARE, AND CANADA, TO ABATE AN
ALLEGED NUISANCE RESULTING IN THE CONTAMINATION AND POLLUTION OF LAKE
ERIE FROM THE DUMPING OF MERCURY INTO ITS TRIBUTARIES.  THE COURT
DECLINES TO EXERCISE ITS JURISDICTION IN THIS CASE SINCE THE ISSUES ARE
BOTTOMED ON LOCAL LAW THAT THE OHIO COURTS ARE COMPETENT TO CONSIDER;
SEVERAL NATIONAL AND INTERNATIONAL BODIES ARE ACTIVELY CONCERNED WITH
THE POLLUTION PROBLEMS INVOLVED HERE; AND THE NATURE OF THE CASE
REQUIRES THE RESOLUTION OF COMPLEX, NOVEL, AND TECHNICAL FACTUAL
QUESTIONS THAT DO NOT IMPLICATE IMPORTANT PROBLEMS OF FEDERAL LAW,
WHICH ARE THE PRIMARY RESPONSIBILITY OF THE COURT.  PP. 495-505. 

DENIED. 

HARLAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, BRENNAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 505. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

BY MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT, OHIO SEEKS TO INVOKE
THIS COURT'S ORIGINAL JURISDICTION.  BECAUSE OF THE IMPORTANCE AND
UNUSUAL CHARACTER OF THE ISSUES TENDERED WE SET THE MATTER FOR ORAL
ARGUMENT, INVITING THE SOLICITOR GENERAL TO PARTICIPATE AND TO FILE A
BRIEF ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE.  FOR REASONS
THAT FOLLOW WE DENY THE MOTION FOR LEAVE TO FILE. 

THE ACTION, FOR ABATEMENT OF A NUISANCE, IS BROUGHT ON BEHALF OF THE
STATE AND ITS CITIZENS, AND NAMES AS DEFENDANTS WYANDOTTE CHEMICALS
CORP. (WYANDOTTE), DOW CHEMICAL CO. (DOW AMERICA), AND DOW CHEMICAL
COMPANY OF CANADA, LTD. (DOW CANADA).  WYANDOTTE IS INCORPORATED IN
MICHIGAN AND MAINTAINS ITS PRINCIPAL OFFICE AND PLACE OF BUSINESS
THERE.  DOW AMERICA IS INCORPORATED IN DELAWARE, HAS ITS PRINCIPAL
OFFICE AND PLACE OF BUSINESS IN MICHIGAN, AND OWNS ALL THE STOCK OF DOW
CANADA.  DOW CANADA IS INCORPORATED, AND DOES BUSINESS, IN ONTARIO.  A
MAJORITY OF DOW CANADA'S DIRECTORS ARE RESIDENTS OF THE UNITED STATES. 

THE COMPLAINT ALLEGES THAT DOW CANADA AND WYANDOTTE HAVE EACH DUMPED
MERCURY INTO STREAMS WHOSE COURSES ULTIMATELY REACH LAKE ERIE, THUS
CONTAMINATING AND POLLUTING THAT LAKE'S WATERS, VEGETATION, FISH, AND
WILDLIFE, AND THAT DOW AMERICA IS JOINTLY RESPONSIBLE FOR THE ACTS OF
ITS FOREIGN SUBSIDIARY.  ASSUMING THE STATE'S ABILITY TO PROVE THESE
ASSERTIONS, OHIO SEEKS A DECREE:  (1) DECLARING THE INTRODUCTION OF
MERCURY INTO LAKE ERIE'S TRIBUTARIES A PUBLIC NUISANCE; (2) PERPETUALLY
ENJOINING THESE DEFENDANTS FROM INTRODUCING MERCURY INTO LAKE ERIE OR
ITS TRIBUTARIES; (3) REQUIRING DEFENDANTS EITHER TO REMOVE THE MERUCRY
FROM LAKE ERIE OR TO PAY THE COSTS OF ITS REMOVAL INTO A FUND TO BE
ADMINISTERED BY OHIO AND USED ONLY FOR THAT PURPOSE; (4) DIRECTING
DEFENDANTS TO PAY OHIO MONETARY DAMAGES FOR THE HARM DONE TO LAKE ERIE,
ITS FISH, WILDLIFE, AND VEGETATION, AND THE CITIZENS AND INHABITANTS OF
OHIO. 

ORIGINAL JURISDICTION IS SAID TO BE CONFERRED ON THIS COURT BY ART.
III OF THE FEDERAL CONSTITUTION.  SECTION 2, CL. 1, OF THAT ARTICLE,
PROVIDES:  "THE JUDICIAL POWER SHALL EXTEND . . . TO CONTROVERSIES . .
. BETWEEN A STATE AND CITIZENS OF ANOTHER STATE . . . AND BETWEEN A
STATE . . . AND FOREIGN . . . CITIZENS OR SUBJECTS."  SECTION 2, CL. 2,
PROVIDES:  "IN ALL CASES . . . IN WHICH A STATE SHALL BE PARTY, THE
SUPREME COURT SHALL HAVE ORIGINAL JURISDICTION."  FINALLY, 28 U.S.C.
1251(B) PROVIDES:  "THE SUPREME COURT SHALL HAVE ORIGINAL BUT NOT
EXCLUSIVE JURISDICTION OF . . . (3) ALL ACTIONS OR PROCEEDINGS BY A
STATE AGAINST THE CITIZENS OF ANOTHER STATE OR AGAINST ALIENS." 

WHILE WE CONSIDER THAT OHIO'S COMPLAINT DOES STATE A CAUSE OF ACTION
THAT FALLS WITHIN THE COMPASS OF OUR ORIGINAL JURISDICTION, WE HAVE
CONCLUDED THAT THIS COURT SHOULD NEVERTHELESS DECLINE TO EXERCISE THAT
JURISDICTION. 

        I 

THAT WE HAVE JURISDICTION SEEMS CLEAR ENOUGH.  /1/  BEYOND DOUBT,
THE COMPLAINT ON ITS FACE REVEALS THE EXISTENCE OF A GENUINE "CASE OR
CONTROVERSY" BETWEEN ONE STATE AND CITIZENS OF ANOTHER, AS WELL AS A
FOREIGN SUBJECT.  DIVERSITY OF CITIZENSHIP IS ABSOLUTE.  NOR IS THE
NATURE OF THE CAUSE OF ACTION ASSERTED A BAR TO THE EXERCISE OF OUR
JURISDICTION.  WHILE WE HAVE REFUSED TO ENTERTAIN, FOR EXAMPLE,
ORIGINAL ACTIONS DESIGNED TO EXACT COMPLIANCE WITH A STATE'S PENAL
LAWS, WISCONSIN V. PELICAN INS. CO., 127 U.S. 265 (1888), OR THAT SEEK
TO EMBROIL THIS TRIBUNAL IN "POLITICAL QUESTIONS," MISSISSIPPI V.
JOHNSON, 4 WALL, 475 (1867); GEORGIA V. STANTON, 6 WALL.  50 (1868),
THIS COURT HAS OFTEN ADJUDICATED CONTROVERSIES BETWEEN STATES AND
BETWEEN A STATE AND CITIZENS OF ANOTHER STATE SEEKING TO ABATE A
NUISANCE THAT EXISTS IN ONE STATE YET PRODUCES NOXIOUS CONSEQUENCES IN
ANOTHER.  SEE MISSOURI V. ILLINOIS, 180 U.S. 208 (1901) (COMPLAINT
FILED), 200 U.S. 496 (1906) (FINAL JUDGMENT); GEORGIA V. TENNESSEE
COPPER CO., 206 U.S. 230 (1907); NEW YORK V. NEW JERSEY, 256 U.S. 296
(1921); NEW JERSEY V. NEW YORK CITY, 283 U.S. 473 (1931).  IN SHORT,
PRECEDENT LEADS ALMOST INELUCTABLY TO THE CONCLUSION THAT WE ARE
EMPOWERED TO RESOLVE THIS DISPUTE IN THE FIRST INSTANCE.  /2/ 

ORDINARILY, THE FOREGOING WOULD SUFFICE TO SETTLE THE ISSUE
PRESENTLY UNDER CONSIDERATION:  WHETHER OHIO SHOULD BE GRANTED LEAVE TO
FILE ITS COMPLAINT.  FOR IT IS A TIME-HONORED MAXIM OF THE ANGLO
AMERICAN COMMON-LAW TRADITION THAT A COURT POSSESSED OF JURISDICTION
GENERALLY MUST EXERCISE IT.  COHENS V. VIRGINIA, 6 WHEAT.  264, 404
(1821).  NEVERTHELESS, ALTHOUGH IT MAY INITIALLY HAVE BEEN CONTEMPLATED
THAT THIS COURT WOULD ALWAYS EXERCISE ITS ORIGINAL JURISDICTION WHEN
PROPERLY CALLED UPON TO DO SO, IT SEEMS EVIDENT TO US THAT CHANGES IN
THE AMERICAN LEGAL SYSTEM AND THE DEVELOPMENT OF AMERICAN SOCIETY HAVE
RENDERED UNTENABLE, AS A PRACTICAL MATTER, THE VIEW THAT THIS COURT
MUST STAND WILLING TO ADJUDICATE ALL OR MOST LEGAL DISPUTES THAT MAY
ARISE BETWEEN ONE STATE AND A CITIZEN OR CITIZENS OF ANOTHER, EVEN
THOUGH THE DISPUTE MAY BE ONE OVER WHICH THIS COURT DOES HAVE ORIGINAL
JURISDICTION. 

AS OUR SOCIAL SYSTEM HAS GROWN MORE COMPLEX, THE STATES HAVE
INCREASINGLY BECOME ENMESHED IN A MULTITUDE OF DISPUTES WITH PERSONS
LIVING OUTSIDE THEIR BORDERS.  CONSIDER, FOR EXAMPLE, THE FREQUENCY
WITH WHICH STATES AND NONRESIDENTS CLASH OVER THE APPLICATION OF STATE
LAWS CONCERNING TAXES, MOTOR VEHICLES, DECEDENTS' ESTATES, BUSINESS
TORTS, GOVERNMENT CONTRACTS, AND SO FORTH.  IT WOULD, INDEED, BE
ANOMALOUS WERE THIS COURT TO BE HELD OUT AS A POTENTIAL PRINCIPAL FORUM
FOR SETTLING SUCH CONTROVERSIES.  THE SIMULTANEOUS DEVELOPMENT OF "LONG
ARM JURISDICTION" MEANS, IN MOST INSTANCES, THAT NO NECESSITY IMPELS US
TO PERFORM SUCH A ROLE.  AND THE EVOLUTION OF THIS COURT'S
RESPONSIBILITIES IN THE AMERICAN LEGAL SYSTEM HAS BROUGHT MATTERS TO A
POINT WHERE MUCH WOULD BE SACRIFIECED, AND LITTLE GAINED, BY OUR
EXERCISING ORIGINAL JURISDICTION OVER ISSUES BOTTOMED ON LOCAL LAW. 
THIS COURT'S PARAMOUNT RESPONSIBILITIES TO THE NATIONAL SYSTEM LIE
ALMOST WITHOUT EXCEPTION IN THE DOMAIN OF FEDERAL LAW.  AS THE IMPACT
ON THE SOCIAL STRUCTURE OF FEDERAL COMMON, STATUTORY, AND
CONSTITUTIONAL LAW HAS EXPANDED, OUR ATTENTION HAS NECESSARILY BEEN
DRAWN MORE AND MORE TO SUCH MATTERS.  WE HAVE NO CLAIM TO SPECIAL
COMPETENCE IN DEALING WITH THE NUMEROUS CONFLICTS BETWEEN STATES AND
NONRESIDENT INDIVIDUALS THAT RAISE NO SERIOUS ISSUES OF FEDERAL LAW. 

THIS COURT IS, MOREOVER, STRUCTURED TO PERFORM AS AN APPELLATE
TRIBUNAL ILL-EQUIPPED FOR THE TASK OF FACTFINDING AND SO FORCED, IN
ORIGINAL CASES AWKWARDLY TO PLAY THE ROLE OF FACTFINDER WITHOUT
ACTUALLY PRESIDING OVER THE INTRODUCTION OF EVIDENCE.  NOR IS THE
PROBLEM MERELY OUR LACK OF QUALIFICATIONS FOR MANY OF THESE TASKS
POTENTIALLY WITHIN THE PURVIEW OF OUR ORIGINAL JURISDICTION; IT IS
COMPOUNDED BY THE FACT THAT FOR EVERY CASE IN WHICH WE MIGHT BE CALLED
UPON TO DETERMINE THE FACTS AND APPLY UNFAMILIAR LEGAL NORMS WE WOULD
UNAVOIDABLY BE REDUCING THE ATTENTION WE COULD GIVE TO THOSE MATTERS OF
FEDERAL LAW AND NATIONAL IMPORT AS TO WHICH WE ARE THE PRIMARY
OVERSEERS. 

THUS, WE THINK IT APPARENT THAT WE MUST RECOGNIZE "THE NEED (FOR)
THE EXERCISE OF A SOUND DISCRETION IN ORDER TO PROTECT THIS COURT FROM
AN ABUSE OF THE OPPORTUNITY TO RESORT TO ITS ORIGINAL JURISDICTION IN
THE ENFORCEMENT BY STATES OF CLAIMS AGAINST CITIZENS OF OTHER STATES." 
MASSACHUSETTS V. MISSOURI, 308 U.S. 1, 19 (1939), OPINION OF CHIEF
JUSTICE HUGHES.  SEE ALSO GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439,
464-465 (1945), AND ID., AT 469-471 (DISSENTING OPINION).  /3/  WE
BELIEVE, HOWEVER, THAT THE FOCUS OF CONCERN EMBODIED IN THE ABOVE
QUOTED STATEMENT OF CHIEF JUSTICE HUGHES SHOULD BE SOMEWHAT REFINED. 
IN OUR OPINION, WE MAY PROPERLY EXERCISE SUCH DISCRETION, NOT SIMPLY TO
SHIELD THIS COURT FROM NOISOME, VEXATIOUS, OR UNFAMILIAR TASKS, BUT
ALSO, AND WE BELIEVE PRINCIPALLY, AS A TECHNIQUE FOR PROMOTING AND
FURTHERING THE ASSUMPTIONS AND VALUE CHOICES THAT UNDERLIE THE CURRENT
ROLE OF THIS COURT IN THE FEDERAL SYSTEM.  PROTECTING THIS COURT PER SE
IS AT BEST A SECONDARY CONSIDERATION.  WHAT GIVES RISE TO THE NECESSITY
FOR RECOGNIZING SUCH DISCRETION IS PRE-EMINENTLY THE DIMISHED SOCIETAL
CONCERN IN OUR FUNCTIONAS A COURT OF ORIGINAL JURISDICTION AND THE
ENHANCED IMPORTANCE OF OUR ROLE AS THE FINAL FEDERAL APPELLATE COURT. 
A BROADER VIEW OF THE SCOPE AND PURPOSES OF OUR DISCRETION WOULD
INADEQUATELY TAKE ACCOUNT OF THE GENERAL DUTY OF COURTS TO EXERCISE
THAT JURISDICTION THEY POSSESS. 

THUS, AT THIS STAGE WE GO NO FURTHER THAN TO HOLD THAT, AS A GENERAL
MATTER, WE MAY DECLINE TO ENTERTAIN A COMPALINT BROUGHT BY A STATE
AGAINST THE CITIZENS OF ANOTHER STATE OR COUNTRY ONLY WHERE WE CAN SAY
WITH ASSURANCE THAT (1) DECLINATION OF JURISDICTION WOULD NOT DISSERVE
ANY OF THE PRINCIPAL POLICIES UNDERLYING THE ARTICLE III JURISDICTIONAL
GRANT AND (2) THE REASONS OF PRACTICAL WISDOM THAT PERSUADE US THAT
THIS COURT IS AN INAPPROPRIATE FORUM ARE CONSISTENT WITH THE
PROPOSITION THAT OUR DISCRETION IS LEGITIMATED BY ITS USE TO KEEP THIS
ASPECT OF THE COURT'S FUNCTIONS ATTUNED TO ITS OTHER RESPONSIBILITIES. 

        II 

IN APPLYING THIS ANALYSIS TO THE FACTS HERE PRESENTED, WE BELIEVE
THAT THE WISER COURSE IS TO DENY OHIO'S MOTION FOR LEAVE TO FILE ITS
COMPLAINT. 

     A 

TWO PRINCIPLES SEEM PRIMARILY TO HAVE UNDERLAIN CONFERRING UPON THIS
COURT ORIGINAL JURISDICTION OVER CASES AND CONTROVERSIES BETWEEN A
STATE AND CITIZENS OF ANOTHER STATE OR COUNTRY.  THE FIRST WAS THE
BELIEF THAT NO STATE SHOULD BE COMPELLED TO RESORT TO THE TRIBUNALS OF
OTHER STATES FOR REDRESS, SINCE PAROCHIAL FACTORS MIGHT OFTEN LEAD TO
THE APPEARANCE, IF NOT THE REALITY, OF PARTIALITY TO ONE'S OWN. 
CHISHOLM V. GEORGIA, 2 DALL.  419, 475-476 (1793); WISCONSIN V. PELICAN
INS. CO., 127 U.S.,AT 289.  THE SECOND WAS THAT A STATE, NEEDING AN
ALTERNATIVE FORUM, OF NECESSITY HAD TO RESORT TO THIS COURT IN ORDER TO
OBTAIN A TRIBUNAL COMPETENT TO EXERCISE JURISDICTION OVER THE ACTS OF
NONRESIDENTS OF THE AGGRIEVED STATE. 

NEITHER OF THESE POLICIES IS, WE THINK, IMPLICATED IN THIS LAWSUIT. 
THE COURTS OF OHIO, UNDER MODERN PRINCIPLES OF THE SCOPE OF SUBJECT
MATTER AND IN PERSONAM JURISDICTION, HAVE A CLAIM AS COMPELLING AS ANY
THAT CAN BE MADE OUT FOR THIS COURT TO EXERCISE JURISDICTION TO
ADJUDICATE THE INSTANT CONTROVERSY, AND THEY WOULD DECIDE IT UNDER THE
SAME COMMON LAW OF NUISANCE UPON WHICH OUR DETERMINATION WOULD HAVE TO
REST.  IN ESSENCE, THE STATE HAS CHARGED DOW CANADA AND WYANDOTTE WITH
THE COMMISSION OF ACTS, ALBEIT BEYOND OHIO'S TERRITORIAL BOUNDARIES,
THAT HAVE PRODUCED AND, IT IS SAID, CONTINUE TO PRODUCE DISASTROUS
EFFECTS WITHIN OHIO'S OWN DOMAIN.  WHILE THIS COURT, AND DOUBTLESS
CANADIAN COURTS, IF CALLED UPON TO ASSESS THE VALIDITY OF ANY DECREE
RENDERED AGAINST EITHER DOW CANADA OR WYANDOTTE, WOULD BE ALERT TO
ASCERTAIN WHETHER THE JUDGMENT RESTED UPON AN EVEN-HANDED APPLICATION
OF JUSTICE, IT IS UNLIKELY THAT WE WOULD TOTALLY DENY OHIO'S COMPETENCE
TO ACT IF THE ALLEGATIONS MADE HERE ARE PROVED TRUE.  SEE, E.G.,
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310 (1945); UNITED
STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416 (CA2 1945); ALI,
RESTATEMENT OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 2D, SEC.
18.  AND WHILE WE CANNOT SPEAK FOR CANADIAN COURTS, WE HAVE BEEN GIVEN
NO REASON TO BELIEVE THEY WOULD BE LESS RECEPTIVE TO ENFORCING A DECREE
RENDERED BY OHIO COURTS THAN ONE ISSUED BY THIS COURT.  THUS, WE DO NOT
BELIEVE EXERCISING OUR DISCRETION TO REFUSE TO ENTERTAIN THIS COMPLAINT
WOULD UNDERMINE ANY OF THE PURPOSES FOR WHICH OHIO WAS GIVEN THE
AUTHORITY TO BRING IT HERE. 

        B 

OUR REASONS FOR THINKING THAT, AS A PRACTICAL MATTER, IT WOULD BE
INAPPROPRIATE FOR THIS COURT TO ATTEMPT TO ADJUDICATE THE ISSUES OHIO
SEEKS TO PRESENT ARE SEVERAL.  HISTORY REVEALS THAT THE COURSE OF THIS
COURT'S PRIOR EFFORTS TO SETTLE DISPUTES REGARDING INTERSTATE AIR AND
WATER POLLUTION HAS BEEN ANYTHING BUT SMOOTH.  IN MISSOURI V. ILLINOIS,
200 U.S. 496, 520-522 (1906), JUSTICE HOLMES WAS AT PAINS TO UNDERSCORE
THE GREAT DIFFICULTY THAT THE COURT FACED IN ATTEMPTING TO PRONOUUNCE A
SUITABLE GENERAL RULE OF LAW TO GOVERN SUCH CONTROVERSIES.  THE
SOLUTION FINALLY GRASPED WAS TO SADDLE THE PARTY SEEKING RELIEF WITH AN
UNUSUALLY HIGH STANDARD OF PROOF AND THE COURT WITH THE DUTY OF
APPLYING ONLY LEGAL PRINCIPLES "WHICH (IT) IS PREPARED DELIBERATELY TO
MAINTAIN AGAINST ALL CONSIDERATIONS ON THE OTHER SIDE," ID., AT 521, AN
ACCOMMODATION WHICH, IN CASES OF THIS KIND, THE COURT HAS FOUND
NECESSARY TO MAINTAIN EVER SINCE.  /4/  SEE, E.G., NEW YORK V. NEW
JERSEY, 256 U.S.,AT 309.  JUSTICE CLARKE'S CLOSING PLEA IN NEW YORK V.
NEW JERSEY, ID., AT 313 STRIKINGLY ILLUSTRATES THE SENSE OF FUTILITY
THAT HAS ACCOMPANIED THIS COURT'S ATTEMPTS TO TREAT WITH THE COMPLEX
TECHNICAL AND POLITICAL MATTERS THAT INHERE IN ALL DISPUTES OF THE KIND
AT HAND: 

     "WE CANNOT WITHHOLD THE SUGGESTION, INSPIRED BY THE

  CONSIDERATION OF THIS CASE, THAT THE GRAVE PROBLEM OF SEWAGE

  DISPOSAL PRESENTED BY THE LARGE AND GROWING POPULATIONS LIVING ON

  THE SHORES OF NEW YORK BAY IS ONE MORE LIKELY TO BE WISELY
SOLVED

  BY COOPERATIVE STUDY AND BY CONFERENCE AND MUTUAL CONCESSION ON

  THE PART OF REPRESENTATIVES OF THE STATES SO VITALLY INTERESTED

  IN IT THAN BY PROCEEDINGS IN ANY COURT HOWEVER CONSTITUTED." 

THE DIFFICULTIES THAT ORDINARILY BESET SUCH CASES ARE SEVERELY
COMPOUNDED BY THE PARTICULAR SETTING IN WHICH THIS CONTROVERSY HAS
REACHED US.  FOR EXAMPLE, THE PARTIES HAVE INFORMED US, WITHOUT
CONTRADICTION, THAT A NUMBER OF OFFICIAL BODIES ARE ALREADY ACTIVELY
INVOLVED IN REGULATING THE CONDUCT COMPLAINED OF HERE.  A MICHIGAN
CIRCUIT COURT HAS ENJOINED WYANDOTTE FROM OPERATING ITS MERCURY CELL
PROCESS WITHOUT JUDICIAL AUTHORIZATION.  THE COMPANY IS, MOREOVER,
CURRENTLY UTILIZING A RECYCLING PROCESS SPECIFICALLY APPROVED BY THE
MICHIGAN WATER RESOURCES COMMISSION AND REMAINS SUBJECT TO THE
CONTINUED SCRUTINY OF THAT AGENCY.  DOW CANADA REPORTS MONTHLY TO THE
ONTARIO WATER RESOURCES COMMISSION ON ITS COMPLIANCE WITH THE
COMMISSION'S ORDER PROHIBITING THE COMPANY FROM PASSING ANY MERCURY
INTO THE ENVIRONMENT.     ADDITIONALLY, OHIO AND MICHIGAN ARE BOTH
PARTICIPANTS IN THE LAKE ERIE ENFORCEMENT CONFERENCE, CONVENED A YEAR
AGO BY THE SECRETARY OF THE INTERIOR PURSUANT TO THE FEDERAL WATER
POLLUTION CONTROL ACT, 62 STAT. 1155, AS AMENDED.  THE CONFERENCE IS
STUDYING ALL FORMS AND SOURCES OF POLLUTION, INCLUDING MERCURY,
INFECTING LAKE ERIE.  THE PURPOSE OF THIS CONFERENCE IS TO PROVIDE A
BASIS FOR CONCERTED REMEDIAL ACTION BY THE STATES OR, IF PROGRESS IN
THAT REGARD IS NOT RAPIDLY MADE, FOR CORRECTIVE PROCEEDINGS INITIATED
BY THE FEDERAL GOVERNMENT.  33 U.S.C. 466G (1964 ED. AND SUPP. V).  AND
THE INTERNATIONAL JOINT COMMISSION, ESTABLISHED BY THE BOUNDARY WATERS
TREATY OF 1909 BETWEEN THE UNITED STATES AND CANADA, 36 STAT. 2448,
ISSUED ON JANUARY 14, 1971, A COMPREHENSIVE REPORT, THE CULMINATION OF
A SIX-YEAR STUDY CARRIED OUT AT THE REQUEST OF THE CONTRACTING PARTIES,
CONCERNING THE CONTAMINATION OF LAKE ERIE.  THAT DOCUMENT MAKES
SPECIFIC RECOMMENDATIONS FOR JOINT PROGRAMS TO ABATE THESE
ENVIRONMENTAL HAZARDS AND RECOMMENDS THAT THE IJC BE GIVEN AUTHORITY TO
SUPERVISE AND COORDINATE THIS EFFORT. 

IN VIEW OF ALL THIS, GRANTING OHIO'S MOTION FOR LEAVE TO FILE WOULD,
IN EFFECT, COMMIT THIS COURT'S RESOURCES TO THE TASK OF TRYING TO
SETTLE A SMALL PIECE OF A MUCH LARGER PROBLEM THAT MANY COMPETENT
ADJUDICATORY AND CONCILIATORY BODIES ARE ACTIVELY GRAPPLING WITH ON A
MORE PRACTICAL BASIS. 

THE NATURE OF THE CASE OHIO BRINGS HERE IS EQUALLY DISCONCERNTING. 
IT CAN FAIRLY BE SAID THAT WHAT IS IN DISPUTE IS NOT SO MUCH THE LAW AS
THE FACTS.  AND THE FACTFINDING PROCESS WE ARE ASKED TO UNDERTAKE IS,
TO SAY THE LEAST, FORMIDABLE.  WE ALREADY KNOW, JUST FROM WHAT HAS BEEN
PLACED BEFORE US ON THIS MOTION, THAT LAKE ERIE SUFFERS FROM SEVERAL
SOURCES OF POLLUTION OTHER THAN MERCURY; THAT THE SCIENTIFIC CONCLUSION
THAT MERCURY IS A SERIOUS WATER POLLUTANT IS A NOVEL ONE; THAT WHETHER
AND TO WHAT EXTENT THE EXISTENCE OF MERCURY IN NATURAL WATERS CAN
SAFELY OR REASONABLY BE TOLERATED IS A QUESTION FOR WHICH THERE IS
PRESENTLY NO FIRM ANSWER; AND THAT VIRTUALLY NO PUBLISHED RESEARCH IS
AVAILABLE DESCRIBING HOW ONE MIGHT EXTRACT MERCURY THAT IS IN FACT
CONTAMINATING WATER.  INDEED, OHIO IS RAISING FACTUAL QUESTIONS THAT
ARE ESSENTIALLY ONES OF FIRST IMPRESSION TO THE SCIENTISTS.  THE NOTION
THAT APPELLATE JUDGES, EVEN WITH THE ASSISTANCE OF A MOST COMPETENT
SPECIAL MASTER, MIGHT APPROPRIATELY UNDERTAKE AT THIS TIME TO UNRAVEL
THESE COMPLEXITIES IS, TO SAY THE LEAST, UNREALISTIC.  NOR WOULD IT
SUFFICE TO IMPOSE ON OHIO AN UNUSUALLY HIGH STANDARD OF PROOF.  THAT
MIGHT SERVE TO MITIGATE OUR PERSONAL DIFFICULTIES IN SEEKING A JUST
RESULT THAT COMPORTS WITH SOUND JUDICIAL ADMINISTRATION, BUT WOULD NOT
LESSEN THE COMPLEXITY OF THE TASK OF PREPARING RESPONSIBLY TO EXERCISE
OUR JUDGMENT, OR THE SERIOUS DRAIN ON THE RESOURCES OF THIS COURT IT
WOULD ENTAIL.  OTHER FACTUAL COMPLEXITIES ABOUND.  FOR EXAMPLE, THE
DEPARTMENT OF THE INTERIOR HAS STATED THAT EIGHT AMERICAN COMPANIES ARE
DISCHARGING, OR HAVE DISCHARGED, MERCURY INTO LAKE ERIE OR ITS
TRIBUTARIES.  WE WOULD, THEN, NEED TO ASSESS THE BUSINESS PRACTICES AND
RELATIVE CULPABILITY OF EACH TO FRAME APPROPRIATE RELIEF AS TO THE ONE
NOW BEFORE US. 

FINALLY, IN WHAT HAS BEEN SAID IT IS VITALLY IMPORTANT TO STRESS
THAT WE ARE NOT CALLED UPON BY THIS LAWSUIT TO RESOLVE DIFFICULT OR
IMPORTANT PORBLEMS OF FEDERAL LAW AND THAT NOTHING IN OHIO'S COMPLAINT
DISTINGUISHES IT FROM ANY ONE OF A HOST OF SUCH ACTIONS THAT MIGHT,
WITH EQUAL JUSTIFICATION, BE COMMENCED IN THIS COURT.  THUS,
ENTERTAINING THIS COMPLAINT NOT ONLY WOULD FAIL TO SERVE THOSE
RESPONSIBILITIES WE ARE PRINCIPALLY CHARGED WITH, BUT COULD WELL PAVE
THE WAY FOR PUTTING THIS COURT INTO A QUANDARY WHEREBY WE MUST OPT
EITHER TO PICK AND CHOOSE ARBITRARILY AMONG SIMILARLY SITUATED
LITIGANTS OR TO DEVOTE TRULY ENORMOUS PORTIONS OF OUR ENERGIES TO SUCH
MATTERS. 

TO SUM UP, THIS COURT HAS FOUND EVEN THE SIMPLEST SORT OF INTERSTATE
POLLUTION CASE AN EXTREMELY AWKWARD VERHICLE TO MANAGE.  AND THIS CASE
IS AN EXTRAORDINARILY COMPLEX ONE BOTH BECAUSE OF THE NOVEL SCIENTIFIC
ISSUES OF FACT INHERENT IN IT AND THE MULTIPLICITY OF GOVERNMENTAL
AGENCIES ALREADY INVOLVED.  ITS SUCCESSFUL RESOLUTION WOULD REQUIRE
PRIMARILY SKILLS OF FACTFINDING, CONCILIATION, DETAILED COORDINATION
WITH-- AND PERHAPS NOT INFREQUENT DEFERENCE TO-- OTHER ADJUDICATORY
BODIES, AND CLOSE SUPERVISION OF THE TECHNICAL PERFORMANCE OF LOCAL
INDUSTRIES.  WE HAVE NO CLAIM TO SUCH EXPERTISE OR REASON TO BELIEVE
THAT, WERE WE TO ADJUDICATE THIS CASE, AND OTHERS LIKE IT, WE WOULD NOT
HAVE TO REDUCE DRASTICALLY OUR ATTENTION TO THOSE CONTROVERSIES FOR
WHICH THIS COURT IS A PROPER AND NECESSARY FORUM.  SUCH A SERIOUS
INTRUSION ON SOCIETY'S INTEREST IN OUR MOST DELIBERATE AND CONSIDERATE
PERFORMANCE OF OUR PARAMOUNT ROLE AS THE SUPREME FEDERAL APPELLATE
COURT COULD, IN OUR VIEW, BE JUSTIFIED ONLY BY THE STRICTEST NECESSITY,
AN ELEMENT WHICH IS EVIDENTLY TOTALLY LACKING IN THIS INSTANCE. 

        III 

WHAT HAS BEEN SAID HERE CANNOT, OF COURSE, BE TAKEN AS DENIGRATING IN
THE SLIGHTEST THE PUBLIC IMPORTANCE OF THE UNDERLYING PROBLEM OHIO
WOULD HAVE US TACKLE.  REVERSING THE INCREASING CONTAMINATION OF OUR
ENVIRONMENT IS MANIFESTLY A MATTER OF FUNDAMENTAL IMPORT AND UTMOST
URGENCY.  WHAT IS DEALT WITH ABOVE ARE ONLY CONSIDERATIONS RESPECTING
THE APPROPRIATE ROLE THIS COURT CAN ASSUME IN EFFORTS TO ERADICATE SUCH
ENVIRONMENTAL BLIGHTS.  WE MEAN ONLY TO SUGGEST THAT OUR COMPETENCE IS
NECESSARILY LIMITED, NOT THAT OUR CONCERN SHOULD BE KEPT WITHIN NARROW
BOUNDS. 

OHIO'S MOTION FOR LEAVE TO FILE ITS COMPLAINT IS DENIED WITHOUT
PREJUDICE TO ITS RIGHT TO COMMENCE OTHER APPROPRIATE JUDICIAL
PROCEEDINGS. 

              IT IS SO ORDERED. 

/1/  THE MATTER IS WELL TREATED IN THE SOLICITOR GENERAL'S AMICUS
BRIEF, WHICH SATISFACTORILY DEALS WITH A NUMBER OF CONSIDERATIONS WHICH
WE FIND IT UNNECESSARY TO DISCUSS IN THIS OPINION. 

/2/  WHILE WE POSSESS JURISDICTION OVER DOW AMERICA AND WYANDOTTE
SIMPLY ON THE BASIS OF THEIR CITIZENSHIP, THE PROBLEM WITH RESPECT TO
DOW CANADA IS QUITE DIFFERENT WITH REGARD TO TWO MAJOR ISSUES:  WHETHER
THAT FOREIGN CORPORATION HAS "CONTACTS" OF THE PROPER SORT SUFFICIENT
TO BRING IT PERSONALLY BEFORE US, AND WHETHER SERVICE OF PROCESS CAN
LAWFULLY BE MADE UPON DOW CANADA.  WERE WE TO DECIDE TO ENTERTAIN THIS
COMPLAINT, HOWEVER, IT SEEMS REASONABLY CLEAR THAT THE BETTER COURSE
WOULD BE TO RESERVE THIS ASPECT OF THE JURISDICTIONAL ISSUE PENDING
ASCERTAINMENT OF ADDITIONAL FACTS, RATHER THAN TO RESOLVE IT NOW. 
THUS, FOR PURPOSES OF RULING ON OHIO'S MOTION FOR LEAVE TO FILE ITS
COMPLAINT, WE TREAT THE QUESTION OF JURISDICTION OVER ALL THREE
DEFENDANTS AS A UNITARY ONE. 

/3/  IN OUR VIEW THE FEDERAL STATUTE, 28 U.S.C. 1251(B)(3),
PROVIDING THAT OUR ORIGINAL JURISDICTION IN CASES SUCH AS THESE IS
MERELY CONCURRENT WITH THAT OF THE FEDERAL DISTRICT COURTS, REFLECTS
THIS SAME JUDGMENT.  HOWEVER, THIS PARTICULAR CASE CANNOT BE DISPOSED
OF BY TRANSFERRING IT TO AN APPROPRIATE FEDERAL DISTRICT COURT SINCE
THIS STATUTE BY ITSELF DOES NOT ACTUALLY CONFER JURISDICTION ON THOSE
COURTS, SEE C. WRIGHT, FEDERAL COURTS 502 (2D ED. 1970), AND NO OTHER
STATUTORY JURISDICTIONAL BASIS EXISTS.  THE FACT THAT THERE IS
DIVERSITY OF CITIZENSHIP AMONG THE PARTIES WOULD NOT SUPPORT DISTRICT
COURT JURISDICTION UNDER 28 U.S.C. 1332 BECAUSE THAT STATUTE DOES NOT
DEAL WITH CASES IN WHICH A STATE IS A PARTY.  NOR WOULD FEDERAL
QUESTION JURISDICTION EXIST UNDER 28 U.S.C. 1331.  SO FAR AS IT APPEARS
FROM THE PRESENT RECORD, AN ACTION SUCH AS THIS, IF OTHERWISE
COGNIZABLE IN FEDERAL DISTRICT COURT, WOULD HAVE TO BE ADJUDICATED
UNDER STATE LAW.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64 (1938). 

/4/  JUSTICE HOLMES' ANALYSIS APPEARS TO REST, IN PART, ON THE FACT
THAT IN THE CASE BEFORE HIM THE CONDUCT COMPLAINED OF WAS THE ACT OF A
SOVEREIGN STATE.  HOWEVER, WE SEE NO REASON WHY THE DETERMINATION TO
IMPOSE A HIGH STANDARD OF PROOF WOULD NOT BE EQUALLY COMPELLING IN A
CASE SUCH AS THE ONE BEFORE US.  ARGUABLY, THE NECESSITY FOR APPLYING
VIRTUALLY UNEXCEPTIONAL LEGAL PRINCIPLES DOES NOT OBTAIN WHERE CONDUCT
NEVER PREVIOUSLY SUBJECTED TO STATE LAW SCRUTINY IS INVOLVED, BUT THIS
IS NOT THE CASE HERE.  SEE TEXT, INFRA. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE COMPLAINT IN THIS CASE PRESENTS BASICALLY A CLASSIC TYPE OF CASE
CONGENIAL TO OUR ORIGINAL JURISDICTION.  IT IS TO ABATE A PUBLIC
NUISANCE.  SUCH WAS THE CLAIM OF GEORGIA AGAINST A TENNESSEE COMPANY
WHICH WAS DISCHARGING NOXIOUS GAS ACROSS THE BORDER INTO GEORGIA. 
GEORGIA V. TENNESSEE COPPER CO., 206 U.S. 230.  THE COURT SAID: 

     "IT IS A FAIR AND REASONABLE DEMAND ON THE PART OF A SOVEREIGN

  THAT THE AIR OVER ITS TERRITORY SHOULD NOT BE POLLUTED ON A GREAT

  SCALE BY SULPHUROUS ACID GAS, THAT THE FORESTS ON ITS MOUNTAINS,

  BE THEY BETTER OR WORSE, AND WHATEVER DOMESTIC DESTRUCTION THEY

  HAVE SUFFERED, SHOULD NOT BE FURTHER DESTROYED OR THREATENED BY

  THE ACT OF PERSONS BEYOND ITS CONTROL, THAT THE CROPS AND

  ORCHARDS ON ITS HILLS SHOULD NOT BE ENDANGERED FROM THE SAME

  SOURCE."  ID., AT 238. 

DUMPING OF SEWAGE IN AN INTERSTATE STREAM, MISSOURI V. ILLINOIS, 200
U.S. 496, OR TOWING GARBAGE TO SEA ONLY TO HAVE THE TIDES CARRY IT TO A
STATE'S BEACHES, NEW JERSEY V. NEW YORK CITY, 283 U.S. 473, HAVE
PRESENTED ANALOGOUS SITUATIONS WHICH THE COURT HAS ENTERTAINED IN SUITS
INVOKING OUR ORIGINAL JURISDICTION.  THE POLLUTION OF LAKE ERIE OR ITS
TRIBUTARIES BY THE DISCHARGE OF MERCURY OR COMPOUNDS THEREOF, IF
PROVED, CERTAINLY CREATES A PUBLIC NUISANCE OF A SERIOUSNESS AND
MAGNITUDE WHICH A STATE BY OUR HISTORIC STANDARDS MAY PROSECUTE OR
PURSUE AS PARENS PATRIAE. 

THE SUIT IS NOT PRECLUDED BY THE BOUNDARY WATERS TREATY OF 1909, 36
STAT. 2448.  ARTICLE IV PROVIDES THAT THE "BOUNDARY WATERS . . . SHALL
NOT BE POLLUTED ON EITHER SIDE TO THE INJURY OF HEALTH OR PROPERTY ON
THE OTHER."  BUT THERE IS NO MACHINERY FOR DIRECT ENFORCEMENT OF ART.
IV. 

ARTICLE VIII EMPOWERS THE INTERNATIONAL JOINT COMMISSION TO "PASS
UPON ALL CASES INVOLVING THE USE OR OBSTRUCTION OR DIVERSION OF THE
WATERS WITH RESPECT TO WHICH UNDER ARTICLES III AND IV . . . THE
APPROVAL OF THIS COMMISSION IS REQUIRED."  THOSE ARTICLES SPECIFICALLY
DESCRIBE THE TYPE OF PROJECTS FOR WHICH APPROVAL IS REQUIRED.  FOR
EXAMPLE, ART. IV STATES THAT THE "(PARTIES . . . WILL NOT PERMIT THE
CONSTRUCTION OR MAINTENANCE . . . OF ANY REMEDIAL OR PROTECTIVE WORKS
OR ANY DAMS OR OTHER OBSTRUCTIONS . . . THE EFFECT OF WHICH IS TO RAISE
THE NATURAL LEVEL OF WATERS ON THE OTHER SIDE OF THE BOUNDARY UNLESS .
. . APPROVED BY THE . . . COMMISSION."  SIGNIFICANTLY, THE PROSCRIPTION
OF POLLUTION, WHICH IMMEDIATELY FOLLOWS THIS PROVISION IN ART. IV, DOES
NOT MENTION APPROVAL OR ACTION BY THE INTERNATIONAL JOINT COMMISSION. 

ARTICLE X DOES VEST THE COMMISSION WITH POWER TO RENDER BINDING
DECISIONS ON MATTERS REFERRED BY CONSENT OF BOTH PARTIES.  BUT ART. X
STATES THAT ANY JOINT REFERENCE "ON THE PART OF THE UNITED STATES . . .
WILL BE BY AND WIT4 THE ADVICE AND CONSENT OF THE SENATE, AND ON THE
PART OF HIS MAJESTY'S GOVERNMENT WITH THE CONSENT OF THE GOVERNOR
GENERAL IN COUNCIL." 

IN OTHER WORDS, SO FAR AS POLLUTION IS CONCERNED, THE TREATY
CONTAINS NO PROVISION FOR BINDING ARBITRATION.  THUS, IT DOES NOT
EVINCE A PURPOSE ON THE PART OF THE NATIONAL GOVERNMENTS OF THE UNITED
STATES AND CANADA TO EXCLUDE THEIR STATES AND PROVINCES FROM SEEKING
OTHER REMEDIES FOR WATER POLLUTION.  INDEED, CONGRESS IN LATER
ADDRESSING ITSELF TO WATER POLLUTION IN THE FEDERAL WATER POLLUTION
CONTROL ACT, 33 U.S.C. 1151 (1970 ED.), SAID IN SEC. 1(C): 

     "NOTHING IN THIS CHAPTER SHALL BE CONSTRUED AS IMPAIRING OR IN

  ANY MANNER AFFECTING ANY RIGHT OR JURISDICTION OF THE STATES WITH

  RESPECT TO THE WATERS (INCLUDING BOUNDARY WATERS) OF SUCH

  STATES." 

THIS LITIGATION, AS IT UNFOLDS, WILL, OF COURSE, IMPLICATE MUCH
FEDERAL LAW.  THE CASE WILL DEAL WITH AN IMPORTANT PORTION OF THE
FEDERAL DOMAIN-- THE NAVIGABLE STREAMS AND THE NAVIGABLE INLAND WATERS
WHICH ARE UNDER THE SOVEREIGNTY OF THE FEDERAL GOVERNMENT.  IT HAS BEEN
CLEAR SINCE POLLARD'S LESSEE V. HAGAN, 3 HOW.  212, DECIDED IN 1845,
THAT NAVIGABLE WATERS WERE SUBJECT TO FEDERAL CONTROL.  THAT PARAMOUNT
FEDERAL DOMINION EXTENDS INTO THE OCEANS BEYOND LOW TIDE.  UNITED
STATES V. CALIFORNIA, 332 U.S. 19. 

CONGRESS HAS ENACTED NUMEROUS LAWS REACHING THAT DOMAIN.  ONE OF THE
MOST PERVASIVE IS THE RIVERS AND HARBORS ACT OF 1899, 30 STAT. 1121, AS
AMENDED, 33 U.S.C. 403, WHICH WAS BEFORE US IN UNITED STATES V.
REPUBLIC STEEL CORP., 362 U.S. 482.  IN THAT CASE WE READ SEC. 13 OF
THE 1899 ACT, 33 U.S.C. 407, WHICHFORBIDS DISCHARGE OF "ANY REFUSE
MATTER OF ANY KIND OR DESCRIPTION WHATEVER OTHER THAN THAT FLOWING FROM
STREETS AND SEWERS AND PASSING THEREFROM IN A LIQUID STATE" AS
INCLUDING PARTICLES IN SUSPENSION.  ID., AT 490. 

IN THE 1930'S FISH AND WILDLIFE LEGISLATION WAS ENACTED GRANTING THE
SECRETARY OF THE INTERIOR VARIOUS HEADS OF JURISDICTION OVER THE
EFFECTS ON FISH AND WILDLIFE OF "DOMESTIC SEWAGE, MINE, PETROLEUM, AND
INDUSTRIAL WASTES, EROSION SILT, AND OTHER POLLUTING SUBSTANCES."  SEE,
E.G., 16 U.S.C. 665.  AMONG OTHER THINGS, THE SECRETARY OF THE INTERIOR
THROUGH THE FISH AND WILDLIFE SERVICE GAVE ADVICE TO THE CORPS OF
ENGINEERS AS RESPECTS THE EFFECTS WHICH PROPOSED DREDGING OR FILLING OF
ESTUARIES WOULD HAVE ON FISH OR WILDLIFE.  /1/     SINCE THAT TIME
OTHER CHANGES HAVE BEEN MADE IN THE DESIGN OF THE FEDERAL SYSTEM OF
WATER CONTROL.  THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED, 33
U.S.C. 1151 (1970 ED.), GIVES BROAD POWERS TO THE SECRETARY TO TAKE
ACTION RESPECTING WATER POLLUTION ON COMPLAINTS OF STATES, AND OTHER
PROCEEDURES TO SECURE FEDERAL ABATEMENT OF THE POLLUTION.  IBID.  THE
NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, 83 STAT. 852, 42 U.S.C. 4331
(1964 ED. SUPP. V), GIVES ELABORATE ECOLOGICAL DIRECTIONS TO FEDERAL
AGENCIES AND SUPPLIES PROCEDURES FOR THEIR ENFORCEMENT. 

ON DECEMBER 23, 1970, THE PRESIDENT ISSUED AN EXECUTIVE ORDER /2/
WHICH CORRELATES THE DUTIES OF THE CORPS OF ENGINEERS AND THE
ADMINISTRATOR OF THE NEW ENVIRONMENTAL PROTECTION AGENCY UNDER THE
FOREGOING STATUTES.  UNDER THAT EXECUTIVE ORDER THE CORPS IN ORDER "TO
REGULATE THE DISCHARGE OF POLLUTANTS AND OTHER REFUSE MATTER INTO THE
NAVIGABLE WATERS OF THE UNITED STATES OR THEIR TRIBUTARIES" IS DIRECTED
AFTER CONSULTATION WITH THE ADMINISTRATOR TO AMEND ITS REGULATIONS
CONCERNING ISSUANCE OF PERMITS.  WHILE THE CORPS IS RESPONSIBLE FOR
GRANTING OR DENYING PERMITS, SEC. 2(A)(2), IT MUST ACCEPT THE FINDINGS
OF THE ADMINISTRATOR RESPECTING "WATER QUALITY STANDARDS,"  SEC.
2(A)(2)(A).  ON DECEMBER 31, 1970, THE CORPS GAVE NOTICE OF ITS NEW
PROPOSED RUELS TO GOVERN DISCHARGES OR DEPOSITS INTO NAVIGABLE WATERS. 
/3/ 

YET THE FEDERAL SCHEME IS NOT PRE-EMPTIVE OF STATE ACTION.  SECTION
1(B) OF THE WATER POLLUTION CONTROL ACT DECLARES THAT THE POLICY OF
CONGRESS IS "TO RECOGNIZE, PRESERVE, AND PROTECT THE PRIMARY
RESPONSIBILITIES AND RIGHTS OF THE STATES IN PREVENTING AND CONTROLLING
WATER POLLUTION."  33 U.S.C. 1151(B) (1970 ED.).  SECTION 10 PROVIDES
THAT EXCEPT WHERE THE ATTORNEY GENERAL HAS ACTUALLY OBTAINED A COURT
ORDER OF POLLUTION ABATEMENT ON BEHALF OF THE UNITED STATES, "STATE AND
INTERSTATE ACTION TO ABATE POLLUTION OF . . . NAVIGABLE WATERS . . .
SHALL NOT . . . BE DISPLACED BY FEDERAL ENFORCEMENT ACTION."  SEC.
10(B), 33 U.S.C. 1160(B) (1970 ED.). 

THE NEW ENVIRONMENTAL QUALITY IMPROVEMENT ACT OF 1970, 84 STAT. 114,
42 U.S.C. 4371 (1970 ED.), WHILE STATING THE GENERAL POLICY OF CONGRESS
IN PROTECTING THE ENVIRONMENT, ALSO STATES:  "THE PRIMARY
RESPONSIBILITY FOR IMPLEMENTING THIS POLICY RESTS WITH STATE AND LOCAL
GOVERNMENTS."  42 U.S.C. 4371(B)(2) (1970 ED.). 

THERE IS MUCH COMPLAINT THAT IN SPITE OF THE ARSENAL OF FEDERAL
POWER LITTLE IS BEING DONE.  /4/  THAT, OF COURSE, IS NOT OUR PROBLEM. 
BUT IT IS OUR CONCERN THAT STATE ACTION IS NOT PRE-EMPTED BY FEDERAL
LAW.  UNDER EXISTING FEDERAL LAW, THE STATES DO INDEED HAVE PRIMARY
RESPONSIBILITY FOR SETTING WATER QUALITY STANDARDS; THE FEDERAL AGENCY
ONLY SETS WATER QUALITY STANDARDS FOR A STATE IF THE STATE DEFAULTS. 
33 U.S.C. 1160(C) (1970 ED.). 

THERE IS NOT A WORD IN FEDERAL LAW THAT BARS STATE ACTION.  IF,
HOWEVER, DEFENDANTS HAD A PERMIT FROM THE CORPS TO DISCHARGE MERCURY
INTO FEDERAL WATERS, THE QUESTION WOULD BE VASTLY DIFFERENT.  BUT THEY
DO NOT, AND SO FAR AS APPEARS THEY ARE NOT UNDER ANY FEDERAL PROCESS
AND ARE NOT PARTIES TO ANY FEDERAL PROCEEDINGS.  IN LIGHT OF THE
HISTORY OF WATER POLLUTION CONTROL EFFORTS IN THIS COUNTRY IT CANNOT BE
DENIED THAT A VAST RESIDUAL AUTHORITY RESTS IN THE STATES.  AND THERE
IS NO BETTER ESTABLISHED REMEDY IN STATE LAW THAN AUTHORITY TO ABATE A
NUISANCE.  /5/ 

MUCH IS MADE OF THE BURDENS AND PERPLEXITIES OF THESE ORIGINAL
ACTIONS.  SOME ARE COMPLEX, NOTABLY THOSE INVOLVING WATER RIGHTS. 

THE DRAINAGE OF LAKE MICHIGAN WITH THE ATTENDANT LOWERING OF WATER
LEVELS, AFFECTING CANADIAN AS WELL AS UNITED STATES INTERESTS, CAME TO
US IN AN ORIGINAL SUIT IN WHICH THE HON. CHARLES E. HUGHES WAS SPECIAL
MASTER.  THIS COURT ENTERED A DECREE, WISCONSIN V. ILLINOIS, 278 U.S.
367, AND HAS SINCE THAT TIME ENTERED SUPPLEMENTARY DECREES.  /6/ 

THE APPORTIONMENT OF THE WATERS OF THE COLORADO BETWEEN ARIZONA AND
CALIFORNIA WAS A MASSIVE UNDERTAKING ENTAILING A SEARCHING ANALYSIS BY
THE SPECIAL MASTER, THE HON. SIMON H. RIFKIND.  OUR DECISION WAS BASED
ON THE RECORD MADE BY HIM AND ON EXCEPTIONS TO HIS REPORT.  ARIZONA V.
CALIFORNIA, 373 U.S. 546. 

THE APPORTIONMENT OF THE WATERS OF THE NORTH PLATTE RIVER AMONG
COLORADO WYOMING, AND NEBRASKA CAME TO US IN AN ORIGINAL ACTION IN
WHICH WE NAMED AS SPECIAL MASTER, HON. MICHAEL J. DOHERTY.  WE ENTERED
A COMPLICATED DECREE, WHICH DISSENTERS VIEWED WITH ALARM, NEBRASKA V.
WYOMING, 325 U.S. 589, BUT WHICH HAS NOT DEMANDED EVEN AN HOUR OF THE
COURT'S TIME DURING THE 26 YEARS SINCE IT WAS ENTERED. 

IF IN THESE ORIGINAL ACTIONS WE SAT WITH A JURY, AS THE COURT ONCE
DID, /7/  THERE WOULD BE POWERFUL ARGUMENTS FOR ABSTENTION IN MANY
CASES.  BUT THE PRACTICE HAS BEEN TO APPOINT A SPECIAL MASTER WHICH WE
CERTAINLY WOULD DO IN THIS CASE.  WE COULD ALSO APPOINT-- OR AUTHORIZE
THE SPECIAL MASTER TO RETAIN-- A PANEL OF SCIENTIFIC ADVISERS.  THE
PROBLEMS IN THIS CASE ARE SIMPLE COMPARED WITH THOSE IN THE WATER CASES
DISCUSSED ABOVE.  IT IS NOW KNOWN THAT METALLIC MERCURY DEPOSITED IN
WATER IS OFTEN TRANSFORMED INTO A DANGEROUS CHEMICAL.  THIS LAWSUIT
WOULD DETERMINE PRIMARILY THE EXTENT, IF ANY, TO WHICH THE DEFENDANTS
ARE CONTRIBUTING TO THAT CONTAMINATION AT THE PRESENT TIME.  IT WOULD
DETERMINE, SECONDARILY, THE REMEDIES WITHIN REACH-- THE IMPORTANCE OF
MERCURY IN THE PARTICULAR MANUFACTURING PROCESSES, THE ALTERNATIVE
PROCESSES AVAILABLE, THE NEED FOR A REMEDY AGAINST A SPECIFIED POLLUTER
AS CONTRASTED TO A BASIN-WIDE REGULATION, AND THE LIKE. 

THE PROBLEM, THOUGH CLOTHED IN CHEMICAL SECRECIES, CAN BE EXPOSED BY
THE EXPERTS.  IT WOULD INDEED BE ONE OF THE SIMPLEST PROBLEMS YET POSED
IN THE CATEGORY OF CASES UNDER THE HEAD OF OUR ORIGINAL JURISDICTION. 

THE DEPARTMENT OF JUSTICE IN A DETAILED BRIEF TELLS US THERE ARE NO
BARRIERS IN FEDERAL LAW TO OUR ASSUMPTION OF JURISDICTION.  /8/  I CAN
THINK OF NO CASE OF MORE TRANSCENDING PUBLIC IMPORTANCE THAN THIS ONE. 

/1/  SEE HEARINGS BEFORE THE SUBCOMMITTEE ON FISHERIES AND WILDLIFE
CONSERVATION OF THE HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES,
SERIAL NO. 90-3, P. 32 ET SEQ. 

/2/  EXEC. ORDER NO. 11574, 35 FED.REG.  19627. 

/3/  35 FED.REG.  20005.  AND SEE 36 FED.REG.  983 CONCERNING ITS
PROPOSED POLICY, PRACTICE, AND PROCEDURE IN THAT REGARD. 

/4/  SEE POLIKOFF, THE INTERLAKE AFFAIR, WASH. MONTHLY,, VOL. 3, NO.
1, P. 7 (MAR. 1971). 

/5/  2 W. BLACKSTONE, COMMENTARIES *218 (COOLEY RTH ED. 1899): 

"(IT IS A NUISANCE TO STOP OR DIVERT WATER THAT USED TO RUN TO
ANOTHER'S MEADOW OR MILL; TO CORRUPT OR POISON A WATER-COURSE, BY
ERECTING A DYEHOUSE OR A LIME-PIT FOR THE USE OF TRADE, IN THE UPPER
PART OF THE STREAM; OR IN SHORT TO DO ANY ACT THEREIN THAT IN ITS
CONSEQUENCES MUST NECESSARILY TEND TO THE PREJUDICE OF ONE'S
NEIGHBOUR.  SO CLOSELY DOES THE LAW OF ENGLAND ENFORCE THAT EXCELLENT
RULE OF GOSPEL MORALITY, OF 'DOING TO OTHERS AS WE WOULD THEY SHOULD DO
UNTO OURSELVES.'" 

/6/  281 U.S. 179, 696; 289 U.S. 395; 309 U.S. 569; 311 U.S. 107;
313 U.S. 547; 388 U.S. 426. 

/7/  GEORGIA V. BRAILSFORD, 3 DALL.  1. 

/8/  THE CASE IS THEREFORE NOT AN APPROPRIATE ONE FOR APPLICATION OF
THE TEACHING OF MASSACHUSETTS V. MELLON, 262 U.S. 447, 485-486, THAT
"(WHILE THE STATE, UNDER SOME CIRCUMSTANCES, MAY SUE (AS PARENS
PATRIAE) FOR THE PROTECTION OF ITS CITIZENS (MISSOURI V. ILLINOIS, 180
U.S. 208, 241), IT IS NO PART OF ITS DUTY OR POWER TO ENFORCE THEIR
RIGHTS IN RESPECT OF THEIR RELATIONS WITH THE FEDERAL GOVERNMENT.  IN
THAT FIELD IT IS THE UNITED STATES, AND NOT THE STATE, WHICH REPRESENTS
THEM AS PARENS PATRIAE, WHEN SUCH REPRESENTATION BECOMES APPROPRIATE;
AND TO THE FORMER, AND NOT TO THE LATTER, THEY MUST LOOK FOR SUCH
PROTECTIVE MEASURES AS FLOW FROM THAT STATUS." 

PAUL W. BROWN, ATTORNEY GENERAL OF OHIO, ARGUED THE CAUSE AND FILED.A
BRIEF FOR PLAINTIFF. 

JOHN M. MOELMAN ARGUED THE CAUSE FOR DEFENDANT WYANDOTTE CHEMICALS
CORP. WITH HIM ON THE BRIEFS WERE THOMAS J. WEITHERS AND MILTON F.
MALLENDER.  IAN W. OUTERBRIDGE, BY SPECIAL LEAVE OF COURT, ARGUED THE
CAUSE FOR DEFENDANT DOW CHEMICAL CO. OF CANADA, LTD.  WITH HIM ON THE
BRIEFS WAS RICHARD W. GALIHER.  HARLEY J. MCNEAL ARGUED THE CAUSE AND
FILED BRIEFS FOR DEFENDANT DOW CHEMICAL CO. 

PETER L. STRAUSS ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL KASHIWA, AND JAMES R. MOORE. 

FRANK J. KELLEY, ATTORNEY GENERAL, ROBERT E. DERENGOSKI, SOLICITOR
GENERAL, AND M. ROBERT CARR, ASSISTANT ATTORNEY GENERAL, FILED A BRIEF
FOR THE STATE OF MICHIGAN AS AMICUS CURIAE. 
..END :












UNITED MINE WORKERS OF AMERICA V. RAILING C. & P. COAL CO., 401 U.S.
486 



       UNITED MINE WORKERS OF AMERICA V. RAILING ET AL., DBA C. &

           P. COAL CO.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FOURTH CIRCUIT

        NO. 1059.  DECIDED MARCH 22, 1971 


CASE REMANDED FOR FURTHER CONSIDERATION, IN LIGHT OF ZENITH RADIO
CORP. V. HAZELTINE RESEARCH, ANTE, P. 321, OF QUESTIONS INVOLVING
ACCRUAL OF CAUSES OF ACTION UNDER SEC. 303 OF THE LABOR MANAGEMENT
RELATIONS ACT AND SEC. 4 OF THE CLAYTON ACT. 

CERTIORARI GRANTED; 429 F.2D 780, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED, AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
CONSIDERATION IN LIGHT OF ZENITH RADIO CORP. V. HAZELTINE RESEARCH,
INC., ANTE, P. 321.  BOTH SEC. 303 OF THE LABOR MANAGEMENT RELATIONS
ACT, 1947, 61 STAT. 158, AS AMENDED, 29 U.S.C. 187, AND SEC. 4 OF THE
CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15 U.S.C. 15, GIVE A CAUSE OF
ACTION FOR INJURY TO BUSINESS OR PROPERTY.  WHETHER SUITS UNDER THE TWO
STATUTES ARE DISTINGUISHABLE FOR PURPOSES OF DETERMINING THE TIME AT
WHICH A CAUSE OF ACTION ACCRUES WARRANTS FURTHER EXPLORATION BY THE
COURT OF APPEALS.  FURTHER ATTENTION SHOULD ALSO BE GIVEN TO THE
QUESTION OF WHY A SEC. 303 CAUSE OF ACTION HAS SUFFICIENTLY ACCRUED TO
BRING SUIT AS SOON AS THE PLAINTIFF SUFFERS DAMAGE BUT HAS NOT
SUFFICIENTLY ACCRUED TO START THE RUNNING OF THE STATUTE OF LIMITATIONS
ON THE DAMAGES ALREADY SUFFERED AND FOR WHICH SUIT MAY BE BUT IS NOT
BROUGHT. 

THE CHIEF JUSTICE AND MR. JUSTICE HARLAN WOULD GRANT THE PETITION
FOR A WRIT OF CERTIORARI AND SET THE CASE FOR ARGUMENT ON THE MERITS. 
..END :









GRIGGS V. DUKE POWER CO., 401 U.S. 424 


       GRIGGS ET AL. V. DUKE POWER CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 FOURTH CIRCUIT

        NO. 124.  ARGUED DECEMBER 14, 1970-- DECIDED MARCH 8, 1971 


NEGRO EMPLOYEES AT RESPONDENT'S GENERATING PLANT BROUGHT THIS ACTION,
PURSUANT TO TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, CHALLENGING
RESPONDENT'S REQUIREMENT OF A HIGH SCHOOL DIPLOMA OR PASSING OF
INTELLIGENCE TESTS AS A CONDITION OF EMPLOYMENT IN OR TRANSFER TO JOBS
AT THE PLANT.  THESE REQUIREMENTS WERE NOT DIRECTED AT OR INTENDED TO
MEASURE ABILITY TO LEARN TO PERFORM A PARTICULAR JOB OR CATEGORY OF
JOBS.  WHILE SEC. 703(A) OF THE ACT MAKES IT AN UNLAWFUL EMPLOYMENT
PRACTICE FOR AN EMPLOYER TO LIMIT, SEGREGATE, OR CLASSIFY EMPLOYEES TO
DEPRIVE THEM OF EMPLOYMENT OPPORTUNITIES OR ADVERSELY TO AFFECT THEIR
STATUS BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN, SEC.
703(H) AUTHORIZES THE USE OF ANY PROFESSIONALLY DEVELOPED ABILITY TEST,
PROVIDED THAT IT IS NOT DESIGNED, INTENDED, OR USED TO DISCRIMINATE. 
THE DISTRICT COURT FOUND THAT RESPONDENT'S FORMER POLICY OF RACIAL
DISCRIMINATION HAD ENDED, AND THAT TITLE VII, BEING PROSPECTIVE ONLY,
DID NOT REACH THE PRIOR INEQUITIES.  THE COURT OF APPEALS REVERSED IN
PART, REJECTING THE HOLDING THAT RESIDUAL DISCRIMINATION ARISING FROM
PRIOR PRACTICES WAS INSULATED FROM REMEDIAL ACTION, BUT AGREED WITH THE
LOWER COURT THAT THERE WAS NO SHOWING OF DISCRIMINATORY PURPOSE IN THE
ADOPTION OF THE DIPLOMA AND TEST REQUIREMENTS.  IT HELD THAT, ABSENT
SUCH DISCRIMINATORY PURPOSE, USE OF THE REQUIREMENTS WAS PERMITTED, AND
REJECTED THE CLAIM THAT BECAUSE A DISPROPORTIONATE NUMBER OF NEGROES
WAS RENDERED INELIGIBLE FOR PROMOTION, TRANSFER, OR EMPLOYMENT, THE
REQUIREMENTS WERE UNLAWFUL UNLESS SHOWN TO BE JOB RELATED.  HELD: 

1.  THE ACT REQUIRES THE ELIMINATION OF ARTIFICIAL, ARBITRARY, AND
UNNECESSARY BARRIERS TO EMPLOYMENT THAT OPERATE INVIDIOUSLY TO
DISCRIMINATE ON THE BASIS OF RACE, AND, IF, AS HERE, AN EMPLOYMENT
PRACTICE THAT OPERATES TO EXCLUDE NEGROES CANNOT BE SHOWN TO BE RELATED
TO JOB PERFORMANCE, IT IS PROHIBITED NOTWITHSTANDING THE EMPLOYER'S
LACK OF DISCRIMINATORY INTENT.  PP. 429-433. 

2.  THE ACT DOES NOT PRECLUDE THE USE OF TESTING OR MEASURING
PROCEDURES, BUT IT DOES PROSCRIBE GIVING THEM CONTROLLING FORCE UNLESS
THEY ARE DEMONSTRABLY A REASONABLE MEASURE OF JOB PERFORMANCE.  PP. 433
436. 

420 F.2D 1225, REVERSED IN PART. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL
MEMBERS JOINED EXCEPT BRENNAN, J., WHO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT IN THIS CASE TO RESOLVE THE QUESTION WHETHER AN
EMPLOYER IS PROHIBITED BY THE CIVIL RIGHTS ACT OF 1964, TITLE VII, FROM
REQUIRING A HIGH SCHOOL EDUCATION OR PASSING OF A STANDARDIZED GENERAL
INTELLIGENCE TEST AS A CONDITION OF EMPLOYMENT IN OR TRANSFER TO JOBS
WHEN (A) NEITHER STANDARD IS SHOWN TO BE SIGNIFICANTLY RELATED TO
SUCCESSFUL JOB PERFORMANCE, (B) BOTH REQUIREMENTS OPERATE TO DISQUALIFY
NEGROES AT A SUBSTANTIALLY HIGHER RATE THAN WHITE APPLICANTS, AND (C)
THE JOBS IN QUESTION FORMERLY HAD BEEN FILLED ONLY BY WHITE EMPLOYEES
AS PART OF A LONGSTANDING PRACTICE OF GIVING PREFERENCE TO WHITES. 
/1/ 

CONGRESS PROVIDED, IN TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, FOR
CLASS ACTIONS FOR ENFORCEMENT OF PROVISIONS OF THE ACT AND THIS
PROCEEDING WAS BROUGHT BY A GROUP OF INCUMBENT NEGRO EMPLOYEES AGAINST
DUKE POWER COMPANY.  ALL THE PETITIONERS ARE EMPLOYED AT THE COMPANY'S
DAN RIVER STEAM STATION, A POWER GENERATING FACILITY LOCATED AT DRAPER,
NORTH CAROLINA.  AT THE TIME THIS ACTION WAS INSTITUTED, THE COMPANY
HAD 95 EMPLOYEES AT THE DAN RIVER STATION, 14 OF WHOM WERE NEGROES; 13
OF THESE ARE PETITIONERS HERE. 

THE DISTRICT COURT FOUND THAT PRIOR TO JULY 2, 1965, THE EFFECTIVE
DATE OF THE CIVIL RIGHTS ACT OF 1964, THE COMPANY OPENLY DISCRIMINATED
ON THE BASIS OF RACE IN THE HIRING AND ASSIGNING OF EMPLOYEES AT ITS
DAN RIVER PLANT.  THE PLANT WAS ORGANIZED INTO FIVE OPERATING
DEPARTMENTS:  (1) LABOR, (2) COAL HANDLING, (3) OPERATIONS, (4)
MAINTENANCE, AND (5) LABORATORY AND TEST.  NEGROES WERE EMPLOYED ONLY
IN THE LABOR DEPARTMENT WHERE THE HIGHEST PAYING JOBS PAID LESS THAN
THE LOWEST PAYING JOBS IN THE OTHER FOUR "OPERATING" DEPARTMENTS IN
WHICH ONLY WHITES WERE EMPLOYED.  /2/  PROMOTIONS WERE NORMALLY MADE
WITHIN EACH DEPARTMENT ON THE BASIS OF JOB SENIORITY.  TRANSFEREES INTO
A DEPARTMENT USUALLY BEGAN IN THE LOWEST POSITION. 

IN 1955 THE COMPANY INSTITUTED A POLICY OF REQUIRING A HIGH SCHOOL
EDUCATION FOR INITIAL ASSIGNMENT TO ANY DEPARTMENT EXCEPT LABOR, AND
FOR TRANSFER FROM THE COAL HANDLING TO ANY "INSIDE" DEPARTMENT
(OPERATIONS, MAINTENANCE, OR LABORATORY).  WHEN THE COMPANY ABANDONED
ITS POLICY OF RESTRICTING NEGROES TO THE LABOR DEPARTMENT IN 1965,
COMPLETION OF HIGH SCHOOL ALSO WAS MADE A PREREQUISITE TO TRANSFER FROM
LABOR TO ANY OTHER DEPARTMENT.  FROM THE TIME THE HIGH SCHOOL
REQUIREMENT WAS INSTITUTED TO THE TIME OF THE HIGH SCHOOL EDUCATION
REQUIREMENT CONTINUED TO PERFORM SATISFACTORILY AND ACHIEVE PROMOTIONS
IN THE "OPERATING" DEPARTMENTS.  FINDINGS ON THIS SCORE ARE NOT
CHALLENGED. 

THE COMPANY ADDED A FURTHER REQUIREMENT FOR NEW EMPLOYEES ON JULY 2,
1965, THE DATE ON WHICH TITLE VII BECAME EFFECTIVE.  TO QUALIFY FOR
PLACEMENT IN ANY BUT THE LABOR DEPARTMENT IT BECAME NECESSARY TO
REGISTER SATISFACTORY SCORES ON TWO PROFESSIONALLY PREPARED APTITUDE
TESTS, AS WELL AS TO HAVE A HIGH SCHOOL EDUCATION.  COMPLETION OF HIGH
SCHOOL ALONE CONTINUED TO RENDER EMPLOYEES ELIGIBLE FOR TRANSFER TO THE
FOUR DESIRABLE DEPARTMENTS FROM WHICH NEGROES HAD BEEN EXCLUDED IF THE
INCUMBENT HAD BEEN EMPLOYED PRIOR TO THE TIME OF THE NEW REQUIRMENT. 
IN SEPTEMBER 1965 THE COMPANY BEGAN TO PERMIT INCUMBENT EMPLOYEES WHO
LACKED A HIGH SCHOOL EDUCATION TO QUALIFY FOR TRANSFER FROM LABOR OR
COAL HANDLING TO AN "INSIDE" JOB BY PASSING TWO TESTS-- THE WONDERLIC
PERSONNEL TEST, WHICH PURPORTS TO MEASURE GENERAL INTELLIGENCE, AND THE
BENNETT MECHANICAL COMPREHENSION TEST.  NEITHER WAS DIRECTED OR
INTENDED TO MEASURE THE ABILITY TO LEARN TO PERFORM A PARTICULAR JOB OR
CATEGORY OF JOBS.  THE REQUISITE SCORES USED FOR BOTH INITIAL HIRING
AND TRANSFER APPROXIMATED THE NATIONAL MEDIAN FOR HIGH SCHOOL
GRADUATES.  /3/ 

THE DISTRICT COURT HAD FOUND THAT WHILE THE COMPANY PREVIOUSLY
FOLLOWED A POLICY OF OVERT RACIAL DISCRIMINATION IN A PERIOD PRIOR TO
THE ACT, SUCH CONDUCT HAD CEASED.  THE DISTRICT COURT ALSO CONCLUDED
THAT TITLE VII WAS INTENDED TO BE PROSPECTIVE ONLY AND, CONSEQUENTLY,
THE IMPACT OF PRIOR INEQUITIES WAS BEYOND THE REACH OF CORRECTIVE
ACTION AUTHORIZED BY THE ACT. 

THE COURT OF APPEALS WAS CONFRONTED WITH A QUESTION OF FIRST
IMPRESSION, AS ARE WE, CONCERNING THE MEANING OF TITLE VII.  AFTER
CAREFUL ANALYSIS A MAJORITY OF THAT COURT CONCLUDED THAT A SUBJECTIVE
TEST OF THE EMPLOYER'S INTENT SHOULD GOVERN, PARTICULARLY IN A CLOSE
CASE, AND THAT IN THIS CASE THERE WAS NO SHOWING OF A DISCRIMINATORY
PURPOSE IN THE ADOPTION OF THE DIPLOMA AND TEST REQUIREMENTS.  ON THIS
BASIS, THE COURT OF APPEALS CONCLUDED THERE WAS NO VIOLATION OF THE
ACT. 

THE COURT OF APPEALS REVERSED THE DISTRICT COURT IN PART, REJECTING
THE HOLDING THAT RESIDUAL DISCRIMINATION ARISING FROM PRIOR EMPLOYMENT
PRACTICES WAS INSULATED FROM REMEDIAL ACTION.  /4/  THE COURT OF
APPEALS NOTED, HOWEVER, THAT THE DISTRICT COURT WAS CORRECT IN ITS
CONCLUSION THAT THERE WAS NO SHOWING OF A RACIAL PURPOSE OR INVIDIOUS
INTENT IN THE ADOPTION OF THE HIGH SCHOOL DIPLOMA REQUIREMENT OR
GENERAL INTELLIGENCE TEST AND THAT THESE STANDARDS HAD BEEN APPLIED
FAIRLY TO WHITES AND NEGROES ALIKE.  IT HELD THAT, IN THE ABSENCE OF A
DISCRIMINATORY PURPOSE, USE OF SUCH REQUIRMENTS WAS PERMITTED BY THE
ACT.  IN SO DOING, THE COURT OF APPEALS REJECTED THE CLAIM THAT BECAUSE
THESE TWO REQUIREMENTS OPERATED TO RENDER INELIGIBLE A MARKEDLY
DISPROPORTIONATE NUMBER OF NEGROES, THEY WERE UNLAWFUL UNDER TITLE VII
UNLESS SHOWN TO BE JOB RELATED.  /5/  WE GRANTED THE WRIT ON THESE
CLAIMS.  399 U.S. 926. 

THE OBJECTIVE OF CONGRESS IN THE ENACTMENT OF TITLE VII IS PLAIN
FROM THE LANGUAGE OF THE STATUTE.  IT WAS TO ACHIEVE EQUALITY OF
EMPLOYMENT OPPORTUNITIES AND REMOVE BARRIERS THAT HAVE OPERATED IN THE
PAST TO FAVOR AN IDENTIFIABLE GROUP OF WHITE EMPLOYEES OVER OTHER
EMPLOYEES.  UNDER THE ACT, PRACTICES, PROCEDURES, OR TESTS NEUTRAL ON
THEIR FACE, AND EVEN NEUTRAL IN TERMS OF INTENT, CANNOT BE MAINTAINED
IF THEY OPERATE TO "FREEZE" THE STATUS QUO OF PRIOR DISCRIMINATORY
EMPLOYMENT PRACTICES. 

THE COURT OF APPEALS' OPINION, AND THE PARTIAL DISSENT, AGREED THAT,
ON THE RECORD IN THE PRESENT CASE, "WHITES REGISTER FAR BETTER ON THE
COMPANY'S ALTERNATIVE REQUIREMENTS" THAN NEGROES.  /6/  420 F.2D 1225,
1239 N. 6.  THIS CONSEQUENCE WOULD APPEAR TO BE DIRECTLY TRACEABLE TO
RACE.  BASIC INTELLIGENCE MUST HAVE THE MEANS OF ARTICULATION TO
MANIFEST ITSELF FAIRLY IN A TESTING PROCESS.  BECAUSE THEY ARE NEGROES,
PETITIONERS HAVE LONG RECEIVED INFERIOR EDUCATION IN SEGREGATED SCHOOLS
AND THIS COURT EXPRESSLY RECOGNIZED THESE DIFFERENCES IN GASTON COUNTY
V. UNITED STATES, 395 U.S. 285 (1969).  THERE, BECAUSE OF THE INFERIOR
EDUCATION RECEIVED BY NEGROES IN NORTH CAROLINA, THIS COURT BARRED THE
INSTITUTION OF A LITERACY TEST FOR VOTER REGISTRATION ON THE GROUND
THAT THE TEST WOULD ABRIDGE THE RIGHT TO VOTE INDIRECTLY ON ACCOUNT OF
RACE.  CONGRESS DID NOT INTEND BY TITLE VII, HOWEVER, TO GUARANTEE A
JOB TO EVERY PERSON REGARDLESS OF QUALIFICATIONS.  IN SHORT, THE ACT
DOES NOT COMMAND THAT ANY PERSON BE HIRED SIMPLY BECAUSE HE WAS
FORMERLY THE SUBJECT OF DISCRIMINATION, OR BECAUSE HE IS A MEMBER OF A
MINORITY GROUP.  DISCRIMINATORY PREFERENCE FOR ANY GROUP, MINORITY OR
MAJORITY, IS PRECISELY AND ONLY WHAT CONGRESS HAS PROSCRIBED.  WHAT IS
REQUIRED BY CONGRESS IS THE REMOVAL OF ARTIFICIAL, ARBITRARY, AND
UNNECESSARY BARRIERS TO EMPLOYMENT WHEN THE BARRIERS OPERATE
INVIDIOUSLY TO DISCRIMINATE ON THE BASIS OF RACIAL OR OTHER
IMPERMISSIBLE CLASSIFICATION. 

CONGRESS HAS NOW PROVIDED THAT TESTS OR CRITERIA FOR EMPLOYMENT OR
PROMOTION MAY NOT PROVIDE EQUALITY OF OPPORTUNITY MERELY IN THE SENSE
OF THE FABLED OFFER OF MILK TO THE STORK AND THE FOX.  ON THE CONTRARY,
CONGRESS HAS NOW REQUIRED THAT THE POSTURE AND CONDITION OF THE JOB
SEEKER BE TAKEN INTO ACCOUNT.  IT HAS-- TO RESORT AGAIN TO THE FABLE--
PROVIDED THAT THE VESSEL IN WHICH THE MILK IS PROFFERED BE ONE ALL
SEEKERS CAN USE.  THE ACT PROSCRIBES NOT ONLY OVERT DISCRIMINATION BUT
ALSO PRACTICES THAT ARE FAIR IN FORM, BUT DISCRIMINATORY IN OPERATION. 
THE TOUCHSTONE IS BUSINESS NECESSITY.  IF AN EMPLOYMENT PRACTICE WHICH
OPERATES TO EXCLUDE NEGROES CANNOT BE SHOWN TO BE RELATED TO JOB
PERFORMANCE, THE PRACTICE IS PROHIBITED. 

ON THE RECORD BEFORE US, NEITHER THE HIGH SCHOOL COMPLETION
REQUIREMENT NOR THE GENERAL INTELLIGENCE TEST IS SHOWN TO BEAR A
DEMONSTRABLE RELATIONSHIP TO SUCCESSFUL PERFORMANCE OF THE JOBS FOR
WHICH IT WAS USED.  BOTH WERE ADOPTED, AS THE COURT OF APPEALS NOTED,
WITHOUT MEANINGFUL STUDY OF THEIR RELATIONSHIP TO JOB-PERFORMANCE
ABILITY.  RATHER, A VICE PRESIDENT OF THE COMPANY TESTIFIED, THE
REQUIREMENTS WERE INSTITUTED ON THE COMPANY'S JUDGMENT THAT THEY
GENERALLY WOULD IMPROVE THE OVERALL QUALITY OF THE WORK FORCE. 

THE EVIDENCE, HOWEVER, SHOWS THAT EMPLOYEES WHO HAVE NOT COMPLETED
HIGH SCHOOL OR TAKEN THE TESTS HAVE CONTINUED TO PERFORM SATISFACTORILY
AND MAKE PROGRESS IN DEPARTMENTS FOR WHICH THE HIGH SCHOOL AND TEST
CRITERIA ARE NOW USED.  /7/  THE PROMOTION RECORD OF PRESENT EMPLOYEES
WHO WOULD NOT BE ABLE TO MEET THE NEW CRITERIA THUS SUGGESTS THE
POSSIBILITY THAT THE REQUIREMENTS MAY NOT BE NEEDED EVEN FOR THE
LIMITED PURPOSE OF PRESERVING THE AVOWED POLICY OF ADVANCEMENT WITHIN
THE COMPANY.  IN THE CONTEXT OF THIS CASE, IT IS UNNECESSARY TO REACH
THE QUESTION WHETHER TESTING REQUIREMENTS THAT TAKE INTO ACCOUNT
CAPABILITY FOR THE NEXT SUCCEEDING POSITION OR RELATED FUTURE PROMOTION
MIGHT BE UTILIZED UPON A SHOWING THAT SUCH LONG-RANGE REQUIREMENTS
FULFILL A GENUINE BUSINESS NEED.  IN THE PRESENT CASE THE COMPANY HAS
MADE NO SUCH SHOWING. 

THE COURT OF APPEALS HELD THAT THE COMPANY HAD ADOPTED THE DIPLOMA
AND TEST REQUIREMENTS WITHOUT ANY "INTENTION TO DISCRIMINATE AGAINST
NEGRO EMPLOYEES."  420 F.2D,AT 1232.  WE DO NOT SUGGEST THAT EITHER THE
DISTRICT COURT OR THE COURT OF APPEALS ERRED IN EXAMINING THE
EMPLOYER'S INTENT; BUT GOOD INTENT OR ABSENCE OF DISCRIMINATORY INTENT
DOES NOT REDEEM EMPLOYMENT PROCEDURES OR TESTING MECHANISMS THAT
OPERATE AS "BUILT-IN HEADWINDS" FOR MINORITY GROUPS AND ARE UNRELATED
TO MEASURING JOB CAPABILITY. 

THE COMPANY'S LACK OF DISCRIMINATORY INTENT IS SUGGESTED BY SPECIAL
EFFORTS TO HELP THE UNDEREDUCATED EMPLOYEES THROUGH COMPANY FINANCING
OF TWO-THIRDS THE COST OF TUITION FOR HIGH SCHOOL TRAINING.  BUT
CONGRESS DIRECTED THE THRUST OF THE ACT TO THE CONSEQUENCES OF
EMPLOYMENT PRACTICES, NOT SIMPLY THE MOTIVATION.  MORE THAN THAT,
CONGRESS HAS PLACED ON THE EMPLOYER THE BURDEN OF SHOWING THAT ANY
GIVEN REQUIREMENT MUST HAVE A MANIFEST RELATIONSHIP TO THE EMPLOYMENT
IN QUESTION. 

THE FACTS OF THIS CASE DEMONSTRATE THE INADEQUACY OF BROAD AND
GENERAL TESTING DEVICES AS WELL AS THE INFIRMITY OF USING DIPLOMAS OR
DEGREES AS FIXED MEASURES OF CAPABILITY.  HISTORY IS FILLED WITH
EXAMPLES OF MEN AND WOMEN WHO RENDERED HIGHLY EFFECTIVE PERFORMANCE
WITHOUT THE CONVENTIONAL BADGES OF ACCOMPLISHMENT IN TERMS OF
CERTIFICATES, DIPLOMAS, OR DEGREES.  DIPLOMAS AND TESTS ARE USEFUL
SERVANTS, BUT CONGRESS HAS MANDATED THE COMMONSENSE PROPOSITION THAT
THEY ARE NOT TO BECOME MASTERS OF REALITY. 

THE COMPANY CONTENDS THAT ITS GENERAL INTELLIGENCE TESTS ARE
SPECIFICALLY PERMITTED BY SEC. 703(H) OF THE ACT.  /8/  THAT SECTION
AUTHORIZES THE USE OF "ANY PROFESSIONALLY DEVELOPED ABILITY TEST" THAT
IS NOT (DESIGNED, INTENDED OR USED TO DISCRIMINATE BECAUSE OF RACE . .
. . " 

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, HAVING ENFORCEMENT
RESPONSIBILITY, HAS ISSUED GUIDELINES INTERPRETING SEC. 703(H) TO
PERMIT ONLY THE USE OF JOB-RELATED TESTS.  /9/  THE ADMINISTRATIVE
INTERPRETATION OF THE ACT BY THE ENFORCING AGENCY IS ENTITLED TO GREAT
DEFERENCE.  SEE, E.G., UNITED STATES V. CITY OF CHICAGO, 400 U.S. 8
(1970); UDALL V. TALLMAN, 380 U.S. 1 (1965); POWER REACTOR CO. V.
ELECTRICIANS, 367 U.S. 396 (1961).  SINCE THE ACT AND ITS LEGISLATIVE
HISTORY SUPPORT THE COMMISSION'S CONSTRUCTION, THIS AFFORDS GOOD REASON
TO TREAT THE GUIDELINES AS EXPRESSING THE WILL OF CONGRESS. 

RIGHTS ACT BUT WAS ADDED IN THE SENATE DURING EXTENDED DEBATE.  FOR A
PERIOD, DEBATE REVOLVED AROUND CLAIMS THAT THE BILL AS PROPOSED WOULD
PROHIBIT ALL TESTING AND FORCE EMPLOYERS TO HIRE UNQUALIFIED PERSONS
SIMPLY BECAUSE THEY WERE PART OF A GROUP FORMERLY SUBJECT TO JOB
DISCRIMINATION.  /10/  PROPONENTS OF TITLE VII SOUGHT THROUGHOUT THE
DEBATE TO ASSURE THE CRITICS THAT THE ACT WOULD HAVE NO EFFECT ON JOB
RELATED TESTS.  SENATORS CASE OF NEW JERSEY AND CLARK OF PENNSYLVANIA,
COMANAGERS OF THE BILL ON THE SENATE FLOOR, ISSUED A MEMORANDUM
EXPLAINING THAT THE PROPOSED TITLE VII "EXPRESSLY PROTECTS THE
EMPLOYER'S RIGHT TO INSIST THAT ANY PROSPECTIVE APPLICANT, NEGRO OR
WHITE, MUST MEET THE APPLICABLE JOB QUALIFICATIONS.  INDEED, THE VERY
PURPOSE OF TITLE VII IS TO PROMOTE HIRING ON THE BASIS OF JOB
QUALIFICATIONS, RATHER THAN ON THE BASIS OF RACE OR COLOR."  110
CONG.REC.  7247.  /11/  DESPITE THESE ASSURANCES, SENATOR TOWER OF
TEXAS INTRODUCED AN AMENDMENT AUTHORIZING "PROFESSIONALLY DEVELOPED
ABILITY TESTS."  PROPONENTS OF TITLE VII OPPOSED THE AMENDMENT BECAUSE,
AS WRITTEN, IT WOULD PERMIT AN EMPLOYER TO GIVE ANY TEST, "WHETHER IT
WAS A GOOD TEST OR NOT, SO LONG AS IT WAS PROFESSIONALLY DESIGNED. 
DISCRIMINATION COULD ACTUALLY EXIST UNDER THE GUISE OF COMPLIANCE WITH
THE STATUTE."  110 CONG.REC.  13504 (REMARKS OF SEN. CASE).     THE
AMENDMENT WAS DEFEATED AND TWO DAYS LATER SENATOR TOWER OFFERED A
SUBSTITUTE AMENDMENT WHICH WAS ADOPTED VERBATIM AND IS NOW THE TESTING
PROVISION OF SEC. 703(H).  SPEAKING FOR THE SUPPORTERS OF TITLE VII,
SENATOR HUMPHREY, WHO HAD VIGOROUSLY OPPOSED THE FIRST AMENDMENT,
ENDORSED THE SUBSTITUTE AMENDMENT, STATING:  "SENATORS ON BOTH SIDES OF
THE AISLE WHO WERE DEEPLY INTERESTED IN TITLE VII HAVE EXAMINED THE
TEXT OF THIS AMENDMENT AND HAVE FOUND IT TO BE IN ACCORD WITH THE
INTENT AND PURPOSE OF THAT TITLE."  110 CONG.REC.  13724.  THE
AMENDMENT WAS THEN ADOPTED.  /12/  FROM THE SUM OF THE LEGISLATIVE
HISTORY RELEVANT IN THIS CASE, THE CONCLUSION IS INESCAPABLE THAT THE
EEOC'S CONSTRUCTION OF SEC. 703(H) TO REQUIRE THAT EMPLOYMENT TESTS BE
JOB RELATED COMPORTS WITH CONGRESSIONAL INTENT. 

NOTHING IN THE ACT PRECLUDES THE USE OF TESTING OR MEASURING
PROCEDURES; OBVIOUSLY THEY ARE USEFUL.  WHAT CONGRESS HAS FORBIDDEN IS
GIVING THESE DEVICES AND MECHANISMS CONTROLLING FORCE UNLESS THEY ARE
DEMONSTRABLY A REASONABLE MEASURE OF JOB PERFORMANCE.  CONGRESS HAS NOT
COMMANDED THAT THE LESS QUALIFIED BE PREFERRED OVER THE BETTER
QUALIFIED SIMPLY BECAUSE OF MINORITY ORIGINS.  FAR FROM DISPARAGING JOB
QUALIFICATIONS AS SUCH, CONGRESS HAS MADE SUCH QUALIFICATIONS THE
CONTROLLING FACTOR, SO THAT RACE, RELIGION, NATIONALITY, AND SEX BECOME
IRRELEVANT.  WHAT CONGRESS HAS COMMANDED IS THAT ANY TESTS USED MUST
MEASURE THE PERSON FOR THE JOB AND NOT THE PERSON IN THE ABSTRACT. 

THE JUDGMENT OF THE COURT OF APPEALS IS, AS TO THAT PORTION OF THE
JUDGMENT APPEALED FROM, REVERSED. 

/1/  THE ACT PROVIDES: 

"SEC. 703.  (A) IT SHALL BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN
EMPLOYER--

        .          .          .          . 

"(2) TO LIMIT, SEGREGATE, OR CLASSIFY HIS EMPLOYEES IN ANY WAY WHICH
WOULD DEPRIVE OR TEND TO DEPRIVE ANY INDIVIDUAL OF EMPLOYMENT
OPPORTUNITIES OR OTHERWISE ADVERSELY AFFECT HIS STATUS AS AN EMPLOYEE,
BECAUSE OF SUCH INDIVIDUAL'S RACE, COLOR, RELIGION, SEX, OR NATIONAL
ORIGIN. 

        .          .          .          . 

"(H) NOTWITHSTANDING ANY OTHER PROVISION OF THIS TITLE, IT SHALL NOT
BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER . . . TO GIVE AND TO
ACT UPON THE RESULTS OF ANY PROFESSIONALLY DEVELOPED ABILITY TEST
PROVIDED THAT SUCH TEST, ITS ADMINISTRATION OR ACTION UPON THE RESULTS
IS NOT DESIGNED, INTENDED OR USED TO DISCRIMINATE BECAUSE OF RACE,
COLOR, RELIGION, SEX OR NATIONAL ORIGIN . . . ."  78 STAT. 255, 42
U.S.C. 2000E-2. 

/2/  A NEGRO WAS FIRST ASSIGNED TO A JOB IN AN OPERATING DEPARTMENT
IN AUGUST 1966, FIVE MONTHS AFTER CHARGES HAD BEEN FILED WITH THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION.  THE EMPLOYEE, A HIGH SCHOOL
GRADUATE WHO HAD BEGUN IN THE LABOR DEPARTMENT IN 1953, WAS PROMOTED TO
A JOB IN THE COAL HANDLING DEPARTMENT. 

/3/  THE TEST STANDARDS ARE THUS MORE STRINGENT THAN THE HIGH SCHOOL
REQUIREMENT, SINCE THEY WOULD SCREEN OUT APPROXIMATELY HALF OF ALL HIGH
SCHOOL GRADUATES. 

/4/  THE COURT OF APPEALS RULED THAT NEGROES EMPLOYED IN THE LABOR
DEPARTMENT AT A TIME WHEN THERE WAS NO HIGH SCHOOL OR TEST REQUIRMENT
FOR ENTRANCE INTO THE HIGHER PAYING DEPARTMENTS COULD NOT NOW BE MADE
SUBJECT TO THOSE REQUIREMENTS, SINCE WHITES HIRED CONTEMPORANEOUSLY
INTO THOSE DEPARTMENTS WERE NEVER SUBJECT TO THEM.  THE COURT OF
APPEALS ALSO REQUIRED THAT THE SENIORITY RIGHTS OF THOSE NEGROES BE
MEASURED ON A PLANTWIDE, RATHER THAN A DEPARTMENTAL, BASIS.  HOUEVER,
THE COURT OF APPEALS DENIED RELIEF TO THE NEGRO EMPLOYEES WITHOUT A
HIGH SCHOOL EDUCATION OR ITS EQUIVALENT WHO WERE HIRED INTO THE LABOR
DEPARTMENT AFTER INSTITUTION OF THE EDUCATIONAL REQUIREMENT. 

/5/  ONE MEMBER OF THAT COURT DISAGREED WITH THIS ASPECT OF THE
DECISION, MAINTAINING, AS DO THE PETITIONERS IN THIS COURT, THAT TITLE
VII PROHIBITS THE USE OF EMPLOYMENT CRITERIA THAT OPERATE IN A RACIALLY
EXCLUSIONARY FASHION AND DO NOT MEASURE SKILLS OR ABILITIES NECESSARY
TO PERFORMANCE OF THE JOBS FOR WHICH THOSE CRITERIA ARE USED. 

/6/  IN NORTH CAROLINA, 1960 CENSUS STATISTICS SHOW THAT, WHILE 34%
OF WHITE MALES HAD COMPLETED HIGH SCHOOL, ONLY 12% OF NEGRO MALES HAD
DONE SO.  U.S. BUREAU OF THE CENSUS, U.S. CENSUS OF POPULATION:  1960,
VOL. 1, CHARACTERISTICS OF THE POPULATION, PT. 35, TABLE 47. 

SIMILARLY, WITH RESPECT TO STANDARDIZED TESTS, THE EEOC IN ONE CASE
FOUND THAT USE OF A BATTERY OF TESTS, INCLUDING THE WONDERLIC AND
BENNETT TESTS USED BY THE COMPANY IN THE INSTANT CASE, RESULTED IN 58%
OF WHITES PASSING THE TESTS, AS COMPARED WITH ONLY 6% OF THE BLACKS. 
DECISION OF EEOC, CCH EMPL.  PRAC.  GUIDE, PARA. 17,304.53 (DEC. 2,
1966).  SEE ALSO DECISION OF EEOC 70-552, CCH EMPL.  PRAC.  GUIDE,
PARA. 6139 (FEB. 19, 1970). 

/7/  FOR EXAMPLE, BETWEEN JULY 2, 1965, AND NOVEMBER 14, 1966, THE
PERCENTAGE OF WHITE EMPLOYEES WHO WERE PROMOTED BUT WHO WERE NOT HIGH
SCHOOL GRADUATES WAS NEARLY IDENTICAL TO THE PERCENTAGE OF NONGRADUATES
IN THE ENTIRE WHITE WORK FORCE. 

/8/  SECTION 703(H) APPLIES ONLY TO TESTS.  IT HAS NO APPLICABILITY
TO THE HIGH SCHOOL DIPLOMA REQUIREMENT. 

/9/  EEOC GUIDELINES ON EMPLOYMENT TESTING PROCEDURES, ISSUED AUGUST
24, 1966, PROVIDE: 

"THE COMMISSION ACCORDINGLY INTERPRETS 'PROFESSIONALLY DEVELOPED
ABILITY TEST' TO MEAN A TEST WHICH FAIRLY MEASURES THE KNOWLEDGE OR
SKILLS REQUIRED BY THE PARTICULAR JOB OR CLASS OF JOBS WHICH THE
APPLICANT SEEKS, OR WHICH FAIRLY AFFORDS THE EMPLOYER A CHANCE TO
MEASURE THE APPLICANT'S ABILITY TO PERFORM A PARTICULAR JOB OR CLASS OF
JOBS.  THE FACT THAT A TEST WAS PREPARED BY AN INDIVIDUAL OR
ORGANIZATION CLAIMING EXPERTISE IN TEST PREPARATION DOES NOT, WITHOUT
MORE, JUSTIFY ITS USE WITHIN THE MEANING OF TITLE VII." 

THE EEOC POSITION HAS BEEN ELABORATED IN THE NEW GUIDELINES ON
EMPLOYEE SELECTION PROCEDURES, 29 CFR 1607, 35 FED.REG.  12333 (AUG. 1,
1970).  THESE GUIDELINES DEMAND THAT EMPLOYERS USING TESTS HAVE
AVAILABLE "DATA DEMONSTRATING THAT THE TEST IS PREDICTIVE OF OR
SIGNIFICANTLY CORRELATED WITH IMPORTANT ELEMENTS OF WORK BEHAVIOR WHICH
COMPRISE OR ARE RELEVANT TO THE JOB OR JOBS FOR WHICH CANDIDATES ARE
BEING EVALUATED."  ID., AT SEC. 1607.4(C). 

/10/  THE CONGRESSIONAL DISCUSSION WAS PROMPTED BY THE DECISION OF A
HEARING EXAMINER FOR THE ILLINOIS FAIR EMPLOYMENT COMMISSION IN MYART
V. MOTOROLA CO. (THE DECISION IS REPRINTED AT 110 CONG.REC.  5662.) 
THAT CASE SUGGESTED THAT STANDARDIZED TESTS ON WHICH WHITES PERFORMED
BETTER THAN NEGROES COULD NEVER BE JUSTIFIED EVEN IF THE NEEDS OF THE
BUSINESS REQUIRED THEM.  A NUMBER OF SENATORS FEARED THAT TITLE VII
MIGHT PRODUCE A SIMILAR RESULT.  SEE REMARKS OF SENATORS ERVIN, 110
CONG.REC.  5614-5616; SMATHERS, ID., AT 5999-6000; HOLLAND, ID., AT
7012-7013; HILL, ID., AT 8447; TOWER, ID., AT 9024; TALMADGE, ID., AT
9025-9026; FULBRIGHT, ID., AT 9599-9600; AND ELLENDER, ID., AT 9600. 

/11/  THE COURT OF APPEALS MAJORITY, IN FINDING NO REQUIRMENT IN
TITLE VII THAT EMPLOYMENT TESTS BE JOB RELATED, RELIED IN PART ON A
QUOTATION FROM AN EARLIER CLARK-CASE INTERPRETATIVE MEMORANDUM
ADDRESSED TO THE QUESTION OF THE CONSTITUTIONALITY OF TITLE VII.  THE
SENATORS SAID IN THAT MEMORANDUM: 

"THERE IS NO REQUIREMENT IN TITLE VII THAT EMPLOYERS ABANDON BONA
FIDE QUALIFICATION TESTS WHERE, BECAUSE OF DIFFERENCES IN BACKGROUND
AND EDUCATION, MEMBERS OF SOME GROUPS.  AN EMPLOYER MAY SET HIS
QUALIFICATIONS AS HIGH AS HE LIKES, HE MAY TEST TO DETERMINE WHICH
APPLICANTS HAVE THESE QUALIFICATIONS, AND HE MAY HIRE, ASSIGN, AND
PROMOTE ON THE BASIS OF TEST PERFORMANCE."  110 CONG.REC.  7213. 

HOWEVER, NOTHING THERE STATED CONFLICTS WITH THE LATER MEMORANDUM
DEALING SPECIFICALLY WITH THE DEBATE OVER EMPLOYER TESTING, 110
CONG.REC.  7247 (QUOTED FROM IN THE TEXT ABOVE), IN WHICH SENATORS
CLARK AND CASE EXPLAINED THAT TESTS WHICH MEASURE "APPLICABLE JOB
QUALIFICATIONS" ARE PERMISSIBLE UNDER TITLE VII.  IN THE EARLIER
MEMORANDUM CLARK AND CASE ASSURED THE SENATE THAT EMPLOYERS WERE NOT TO
BE PROHIBITED FROM USING TESTS THAT DETERMINE QUALIFICATIONS. 
CERTAINLY A REASONABLE INTERPRETATION OF WHAT THE SENATORS MEANT, IN
LIGHT OF T,E SUBSEQUENT MEMORANDUM DIRECTED SPECIFICALLY AT EMPLOYER
TESTING, WAS THAT NOTHING IN THE ACT PREVENTS EMPLOYERS FROM REQUIRING
THAT APPLICANTS BE FIT FOR THE JOB. 

/12/  SENATOR TOWER'S ORIGINAL AMENDMENT PROVIDED IN PART THAT A
TEST WOULD BE PERMISSIBLE "IF . . . IN THE CASE OF ANY INDIVIDUAL WHO
IS SEEKING EMPLOYMENT WITH SUCH EMPLOYER, SUCH TEST IS DESIGNED TO
DETERMINE OR PREDICT WHETHER SUCH INDIVIDUAL IS SUITABLE OR TRAINABLE
WITH RESPECT TO HIS EMPLOYMENT IN THE PARTICULAR BUSINESS OR ENTERPRISE
INVOLVED . . . ."  110 CONG.REC.  13492.  THIS LANGUAGE INDICATES THAT
SENATOR TOWER'S AIM WAS SIMPLY TO MAKE CERTAIN THAT JOB-RELATED TESTS
WOULD BE PERMITTED.  THE OPPOSITION TO THE AMENDMENT WAS BASED ON ITS
LOOSE WORDING WHICH THE PROPONENTS OF TITLE VII FEARED WOULD BE
SUSCEPTIBLE OF MISINTERPRETATION.  THE FINAL AMENDMENT, WHICH WAS
ACCEPTABLE TO ALL SIDES, COULD HARDLY HAVE REQUIRED LESS OF A JOB
RELATION THAN THE FIRST. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE JAMES M. NABRIT III, NORMAN C. AMAKER, WILLIAM L. ROBINSON,
CONRAD O. PEARSON, JULIUS LEVONNE CHAMBERS, AND ALBERT J. ROSENTHAL. 

GEORGE W. FERGUSON, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM
ON THE BRIEF WERE WILLIAM I. WARD, JR., AND GEORGE M. THORPE. 

LAWRENCE M. COHEN ARGUED THE CAUSE FOR THE CHAMBER OF COMMERCE OF
THE UNITED STATES AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HIM ON THE
BRIEF WERE FRANCIS V. LOWDEN, JR., GERARD C. SMETANA, AND MILTON A.
SMITH. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL LEONARD, DEPUTY SOLICITOR
GENERAL WALLACE, DAVID L. ROSE, STANLEY HEBERT, AND RUSSELL SPECTER FOR
THE UNITED STATES; BY LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, PRO SE,
SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND GEORGE D.
ZUCKERMAN AND DOMINICK J. TUMINARO, ASSISTANT ATTORNEYS GENERAL, FOR
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK; AND BY BERNARD KLEIMAN,
ELLIOT BREDHOFF, MICHAEL H. GOTTESMAN, AND GEORGE H. COHEN FOR THE
UNITED STEELWORKERS OF AMERICA, AFL-CIO. 
..END :






















GILLETTE V. UNITED STATES, 401 U.S. 437 


       GILLETTE V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 85.  ARGUED DECEMBER 9, 1970-- DECIDED MARCH 8, 1971

           /1/ 


PETITIONER IN NO. 85, WHO WAS CONVICTED FOR FAILURE TO REPORT FOR
INDUCTION, AND PETITIONER IN NO. 325, WHO SOUGHT DISCHARGE FROM THE
ARMED FORCES UPON RECEIPT OF ORDERS FOR VIETNAM DUTY, CLAIM EXEMPTION
FROM MILITARY SERVICE BECAUSE OF THEIR CONSCIENTIOUS OBJECTION TO
PARTICIPATION IN THE VIETNAM CONFLICT, AS AN "UNJUST" WAR, PURSUANT TO
SEC. 6(J) OF THE MILITARY SELECTIVE SERVICE ACT OF 1967.  THAT SECTION
PROVIDES THAT NO PERSON SHALL BE SUBJECT TO "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."  PETITIONERS ALSO CHALLENGE THE CONSTITUTIONALITY OF SEC. 6(J)
AS CONSTRUED TO COVER ONLY OBJECTORS TO ALL WAR, AS VIOLATIVE OF THE
FREE EXERCISE AND ESTABLISHMENT OF RELIGION CLAUSES OF THE FIRST
AMENDMENT.  HELD: 

1.  THE EXEMPTION FOR THOSE WHO OPPOSE "PARTICIPATION IN WAR IN ANY
FORM" APPLIES TO THOSE WHO OPPOSE PARTICIPATING IN ALL WAR AND NOT TO
THOSE WHO OBJECT TO PARTICIPATION IN A PARTICULAR WAR ONLY, EVEN IF THE
LATTER OBJECTION IS RELIGIOUS IN CHARACTER.  PP. 441-448. 

2.  SECTION 6(J) DOES NOT VIOLATE THE ESTABLISHMENT CLAUSE OF THE
FIRST AMENDMENT.  PP. 448-460. 

(A) THE SECTION ON ITS FACE DOES NOT DISCRIMINATE ON THE BASIS OF
RELIGIOUS AFFILIATION OR BELIEF, AND PETITIONERS HAVE NOT SHOWN THE
ABSENCE OF NEUTRAL, SECULAR BASES FOR THE EXEMPTION.  PP. 450-453. 

(B) THE EXEMPTION PROVISION FOCUSES ON INDIVIDUAL CONSCIENTIOUS
BELIEF AND NOT ON SECTARIAN AFFILIATIONS.  P. 454. 

(C) THERE ARE VALID NEUTRAL REASONS, WITH THE CENTRAL EMPHASIS ON
THE MAINTENANCE OF FAIRNESS IN THE ADMINISTRATION OF MILITARY
CONSCRIPTION, FOR THE CONGRESSIONAL LIMITATION OF THE EXEMPTION TO "WAR
IN ANY FORM," AND THEREFORE SEC. 6(J) CANNOT BE SAID TO REFLECT A
RELIGIOUS PREFERENCE.  PP. 454-460. 

3.  SECTION 6(J) DOES NOT VIOLATE THE FREE EXERCISE CLAUSE.  IT IS
NOT DESIGNED TO INTERFERE WITH ANY RELIGIOUS PRACTICE AND DOES NOT
PENALIZE ANY THEOLOGICAL POSITION.  ANY INCIDENTAL BURDENS FLET BY
PETITIONERS ARE JUSTIFIED BY THE SUBSTANTIAL GOVERNMENTAL INTERESTS
RELATING TO MILITARY CONSCRIPTION.  PP. 461-462. 

NO. 85, 420 F.2D 298, AND NO. 325, 418 F.2D 908, AFFIRMED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND HARLAN, BRENNAN, STEWART, WHITE, AND BLACKMUN, JJ., JOINED. 
BLACK, J., CONCURRED IN THE JUDGMENT AND IN PART I OF THE COURT'S
OPINION.  DOUGLAS, J., FILED DISSENTING OPINIONS, POST, P. 463 AND P.
470. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT THE QUESTION WHETHER CONSCIENTIOUS OBJECTION TO
A PARTICULAR WAR, RATHER THAN OBJECTION TO WAR AS SUCH, RELIEVES THE
OBJECTOR FROM RESPONSIBILITIES OF MILITARY TRAINING AND SERVICE. 
SPECIFICALLY, WE ARE CALLED UPON TO DECIDE WHETHER CONSCIENTIOUS
SCRUPLES RELATING TO A PARTICULAR CONFLICT ARE WITHIN THE PURVIEW OF
ESTABLISHED PROVISIONS /1A/  RELIEVING CONSCIENTIOUS OBJECTORS TO WAR
FROM MILITARY SERVICE.  BOTH PETITIONERS ALSO INVOKE CONSTITUTIONAL
PRINCIPLES BARRING GOVERNMENT INTERFERENCE WITH THE EXERICSE OF
RELIGION AND REQUIRING GOVERNMENTAL NEUTRALITY IN MATTERS OF RELIGION. 

IN NO. 85, PETITIONER GILLETTE WAS CONVICTED OF WILFUL FAILURE TO
REPORT FOR INDUCTION INTO THE ARMED FORCES.  GILLETTE DEFENDED ON THE
GROUND THAT HE SHOULD HAVE BEEN RULED EXEMPT FROM INDUCTION AS A
CONSCIENTIOUS OBJECTOR TO WAR.  IN SUPPORT OF HIS UNSUCCESSFUL REQUEST
FOR CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR, THIS PETITIONER HAD
STATED HIS WILLINGNESS TO PARTICIPATE IN A WAR OF NATIONAL DEFENSE OR A
WAR SPONSORED BY THE UNITED NATONS AS A PEACE-KEEPING MEASURE, BUT
DECLARED HIS OPPOSITION TO AMERICAN MILITARY OPERATIONS IN VIETNAM,
WHICH HE CHARACTERIZED AS "UNJUST."  PETITIONER CONCLUDED THAT HE COULD
NOT IN CONSCIENCE ENTER AND SERVE IN THE ARMED FORCES DURING THE PERIOD
OF THE VIETNAM CONFLICT.  GILLETTE'S VIEW OF HIS DUTY TO ABSTAIN FROM
ANY INVOLVEMENT IN A WAR SEEN AS UNJUST IS, IN HIS WORDS, "BASED ON A
HUMANIST APPROACH TO RELIGION," AND HIS PERSONAL DECISION CONCERNING
MILITARY SERVICE WAS GUIDED BY FUNDAMENTAL PRINCIPLES OF CONSCIENCE AND
DEEPLY HELD VIEWS ABOUT THE PURPOSE AND OBLIGATION OF HUMAN EXISTENCE. 

THE DISTRICT COURT DETERMINED THAT THERE WAS A BASIS IN FACT TO
SUPPORT ADMINISTRATIVE DENIAL OF EXEMPTION IN GILLETTE'S CASE.  THE
DENIAL OF EXEMPTION WAS UPHELD, AND GILLETTE'S DEFENSE TO THE CRIMINAL
CHARGE REJECTED, NOT BECAUSE OF DOUBT ABOUT THE SINCERITY OR THE
RELIGIOUS CHARACTER OF PETITIONER'S OBJECTION TO MILITARY SERVICE, BUT
BECAUSE HIS OBJECTION RAN TO A PARTICULAR WAR.  IN AFFIRMING THE
CONVICTION, THE COURT OF APPEALS CONCLUDED THAT GILLETTE'S
CONSCIENTIOUS BELIEFS "WERE SPECIFICALLY DIRECTED AGAINST THE WAR IN
VIETNAM," WHILE THE RELEVANT EXEMPTION PROVISION OF THE MILITARY
SELECTIVE SERVICE ACT OF 1967, 50 U.S.C. APP. 456(J) (1964 ED., SUPP.
V), "REQUIRES OPPOSITION 'TO PARTICIPATION IN WAR IN ANY FORM.'"  420
F.2D 298, 299-300 (CA2 1970). 

IN NO. 325, PETITIONER NEGRE, AFTER INDUCTION INTO THE ARMY,
COMPLETION OF BASIC TRAINING, AND RECEIPT OF ORDERS FOR VIETNAM DUTY,
COMMENCED PROCEEDINGS LOOKING TO HIS DISCHARGE AS A CONSCIENTIOUS
OBJECTOR TO WAR.  APPLICATION FOR DISCHARGE WAS DENIED, AND NEGRE
SOUGHT JUDICIAL RELIEF BY HABEAS CORPUS.  THE DISTRICT COURT FOUND A
BASIS IN FACT FOR THE ARMY'S REJECTION OF PETITIONER'S APPLICATION FOR
DISCHARGE.  HABEAS RELIEF WAS DENIED, AND THE DENIAL WAS AFFIRMED ON
APPEAL, BECAUSE, IN THE LANGUAGE OF THE COURT OF APPEALS, NEGRE
"OBJECTS TO THE WAR IN VIETNAM, NOT TO ALL WARS," AND THEREFORE DOES
"NOT QUALIFY FOR SEPARATION (FROM THE ARMY), AS A CONSCIENTIOUS
OBJECTOR."  /2/  418 F.2D 908, 909-910 (CA9 1969).  AGAIN, NO QUESTION
IS RAISED AS TO THE SINCERITY OR THE RELIGIOUS QUALITY OF THIS
PETITIONER'S VIEWS.  IN LINE WITH RELIGIOUS COUNSELING AND NUMEROUS
RELIGIOUS TEXTS, NEGRE, A DEVOUT CATHOLIC, BELIEVES THAT IT IS HIS DUTY
AS A FAITHFUL CATHOLIC TO DISCRIMINATE BETWEEN "JUST" AND "UNJUST"
WARS, AND TO FORSWEAR PARTICIPATION IN THE LATTER.  HIS ASSESSMENT OF
THE VIETNAM CONFLICT AS AN UNJUST WAR BECAME CLEAR IN HIS MIND AFTER
COMPLETION OF INFANTRY TRAINING, AND NEGRE IS NOW FIRMLY OF THE VIEW
THAT ANY PERSONAL INVOLVEMENT IN THAT WAR WOULD CONTRAVENE HIS
CONSCIENCE AND "ALL THAT I HAD BEEN TAUGHT IN MY RELIGIOUS TRAINING." 

WE GRANTED CERTIORARI IN THESE CASES, 399 U.S. 925 (1970), IN ORDER
TO RESOLVE VITAL ISSUES CONCERNING THE EXERCISE OF CONGRESSIONAL POWER
TO RAISE AND SUPPORT ARMIES, AS AFFECTED BY THE RELIGIOUS GUARANTEES OF
THE FIRST AMENDMENT.  WE AFFIRM THE JUDGMENTS BELOW IN BOTH CASES. 

        I 

EACH PETITIONER CLAIMS A NONCONSTITUTIONAL RIGHT TO BE RELIEVED OF
THE DUTY OF MILITARY SERVICE IN VIRTUE OF HIS CONSCIENTIOUS SCRUPLES. 
/3/  BOTH CLAIMS TURN ON THE PROPER CONSTRUCTION OF SEC. 6(J) OF THE
MILITARY SELECTIVE SERVICE ACT OF 1967, 50 U.S.C. APP. 456(J) (1964
ED., SUPP. V), WHICH PROVIDES: 

"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."  /4/ 

THIS LANGUAGE CONTROLS GILLETTE'S CLAIM TO EXEMPTION, WHICH WAS
ASSERTED ADMINISTRATIVELY PRIOR TO THE POINT OF INDUCTION.  DEPARTMENT
OF DEFENSE DIRECTIVE NO. 1300.6 (MAY 10, 1968), PRESCRIBES THAT POST
INDUCTION CLAIMS TO CONSCIENTIOUS OBJECTOR STATUS SHALL BE HONORED, IF
VALID, BY THE VARIOUS BRANCHES OF THE ARMED FORCES.  /5/  SECTION 6(J)
OF THE ACT, AS CONSTRUED BY THE COURTS, IS INCORPORATED BY THE VARIOUS
SERVICE REGULATIONS ISSUED PURSUANT TO THE DIRECTIVE, /6/  AND THUS THE
STANDARDS FOR MEASURING CLAIMS OF IN-SERVICE OBJECTORS, SUCH AS NEGRE,
ARE THE SAME AS THE STATUTORY TESTS APPLICABLE IN A PRE-INDUCTION
SITUATION. 

FOR PURPOSES OF DETERMINING THE STATUTORY STATUS OF CONSCIENTIOUS
OBJECTION TO A PARTICULAR WAR, THE FOCAL LANGUAGE OF SEC. 6(J) IS THE
PHRASE, "CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN ANY FORM." 
THIS LANGUAGE, ON A STRAIGHTFORWARD READING, CAN BEAR BUT ONE MEANING;
THAT CONSCIENTIOUS SCRUPLES RELATING TO WAR AND MILITARY SERVICE MUST
AMOUNT TO CONSCIENTIOUS OPPOSITION TO PARTICIPATING PERSONALLY IN ANY
WAR AND ALL WAR.  SEE WELSH V. UNITED STATES, 398 U.S. 333, 340, 342
(1970); ID., AT 347, 357 (CONCURRING IN RESULT).  SEE ALSO UNITED
STATES V. KAUTEN, 133 F.2D 703, 707 (CA2 1943).  IT MATTERS LITTLE FOR
PRESENT PURPOSES WHETHER THE WORDS, "IN ANY FORM," ARE READ TO MODIFY
"WAR" OR "PARTICIPATION."  ON THE FIRST READING, CONSCIENTIOUS SCRUPLES
MUST IMPLICATE "WAR IN ANY FORM," AND AN OBJECTION INVOLVING A
PARTICULAR WAR RATHER THAN ALL WAR WOULD PLAINLY NOT BE COVERED BY SEC.
6(J).  ON THE OTHER READING, AN OBJECTOR MUST OPPOSE "PARTICIPATION IN
WAR."  IT WOULD STRAIN GOOD SENSE TO READ THIS PHRASE OTHERWISE THAN TO
MEAN "PARTICIPATION IN ALL WAR."  FOR THE WORD "WAR"  WOULD STILL BE
USED IN AN UNQUALIFIED, GENERIC SENSE, MEANING WAR AS SUCH.  THUS,
HOWEVER THE STATUTORY CLAUSE BE PARSED, IT REMAINS THAT CONSCIENTIOUS
OBJECTION MUST RUN TO WAR IN ANY FORM.  /7/ 

A DIFFERENT RESULT CANNOT BE SUPPORTED BY RELIANCE ON THE MATERIALS
OF LEGISLATIVE HISTORY.  /8/  PETITIONERS AND AMICI POINT TO NO EPISODE
OR PRONOUNCEMENT IN THE LEGISLATIVE HISTORY OF SEC. 6(J), OR OF
PREDECESSOR PROVISIONS, THAT TENDS TO OVERTHROW THE OBVIOUS
INTERPRETATION OF THE WORDS THEMSELVES.  /9/ 

IT IS TRUE THAT THE LEGISLATIVE MATERIALS REVEAL A DEEP CONCERN FOR
THE SITUATION OF CONSCIENTIOUS OBJECTORS TO WAR, WHO ABSENT SPECIAL
STATUS WOULD BE PUT TO A HARD CHOICE BETWEEN CONTRAVENING IMPERATIVES
OF RELIGION AND CONSCIENCE OR SUFFERING PENALTIES.  MOREOVER, THERE ARE
CLEAR INDICATIONS THAT CONGRESSIONAL RELUCTANCE TO IMPOSE SUCH A CHOICE
STEMS FROM A RECOGNITION OF THE VALUE OF CONSCIENTIOUS ACTION TO THE
DEMOCRATIC COMMUNITY AT LARGE, AND FROM RESPECT FOR THE GENERAL
PROPOSITION THAT FUNDAMENTAL PRINCIPLES OF CONSCIENCE AND RELIGIOUS
DUTY MAY SOMETIMES OVERRIDE THE DEMANDS OF THE SECULAR STATE.  SEE
UNITED STATES V. SEEGER, 380 U.S. 163, 170-172 (1965); UNITED STATES V.
MACINTOSH, 283 U.S. 605, 631-634 (1931) (DISSENTING OPINION).  SEE
GENERALLY SELECTIVE SERVICE SYSTEM MONOGRAPH NO. 11, CONSCIENTIOUS
OBJECTION (1950).  BUT THERE ARE COUNTERVAILING CONSIDERATIONS, WHICH
ARE ALSO THE CONCERN OF CONGRESS, /10/  AND THE LEGISLATIVE MATERIALS
SIMPLY DO NOT SUPPORT THE VIEW THAT CONGRESS INTENDED TO RECOGNIZE ANY
CONSCIENTIOUS CLAIM WHATEVER AS A BASIS FOR RELIEVING THE CLAIMANT FROM
THE GENERAL RESPONSIBILITY OR THE VARIOUS INCIDENTS OF MILITARY
SERVICE.  THE CLAIM THAT IS RECOGNIZED BY SEC. 6(J) IS A CLAIM OF
CONSCIENCE RUNNING AGAINST WAR AS SUCH.  THIS CLAIM, NOT ONE INVOLVING
OPPOSITION TO A PARTICULAR WAR ONLY, WAS PLAINLY THE FOCUS OF
CONGRESSIONAL CONCERN. 

FINDING LITTLE COMFORT IN THE WORDING OR THE LEGISLATIVE HISTORY OF
SEC. 6(J), PETITIONERS RELY HEAVILY ON DICTA IN THE DECISIONAL LAW
DEALING WITH OBJECTORS WHOSE CONSCIENTIOUS SCRUPLES RAN AGAINST WAR AS
SUCH, BUT WHO INDICATED CERTAIN RESERVATIONS OF AN ABSTRACT NATURE.  IT
IS INSTRUCTIVE THAT NONE OF THE CASES RELIED UPON EMBRACES AN
INTERPRETATION OF SEC. 6(J) AT VARIANCE WITH THE CONSTRUCTION WE ADOPT
TODAY.  /11/ 

SICURELLA V. UNITED STATES, 348 U.S. 385 (1955), PRESENTED THE ONLY
PREVIOUS OCCASION FOR THIS COURT TO FOCUS ON THE "PARTICIPATION IN WAR
IN ANY FORM" LANGUAGE OF SEC. 6(J).  IN SICURELLA A JEHOVAH'S WITNESS
WHO OPPOSED PARTICIPATION IN SECULAR WARS WAS HELD TO POSSESS THE
REQUISITE CONSCIENTIOUS SCRUPLES CONCERNING WAR, ALTHOUGH HE WAS NOT
OPPOSED TO PARTICIPATION IN A "THEOCRATIC WAR" COMMANDED BY JEHOVAH. 
THE COURT NOTED THAT THE "THEOCRATIC WAR" RESERVATION WAS HIGHLY
ABSTRACT-- NO SUCH WAR HAD OCCURRED SINCE BIBLICAL TIMES, AND NONE WAS
CONTEMPLATED.  CONGRESS, ON THE OTHER HAND, HAD IN MIND "REAL SHOOTING
WARS," ID., AT 391, AND SICURELLA'S ABSTRACT RESERVATIONS DID NOT
UNDERCUT HIS CONSCIENTIOUS OPPOSITION TO PARTICIPATING IN SUCH WARS. 
PLAINLY SICURELLA CANNOT BE READ TO SUPPORT THE CLAIMS OF THOSE, LIKE
PETITIONERS, WHO FOR A VARIETY OF REASONS CONSIDER ONE PARTICULAR "REAL
SHOOTING WAR" TO BE UNJUST, AND THEREFORE OPPOSE PARTICIPATION IN THAT
WAR.  /12/ 

IT SHOULD BE EMPHASIZED THAT OUR CASES EXPLICATING THE "RELIGIOUS
TRAINING AND BELIEF" CLAUSE OF SEC. 6(J), OR COGNATE CLAUSES OF
PREDECESSOR PROVISIONS, ARE NOT RELEVANT TO THE PRESENT ISSUE.  THE
QUESTION HERE IS NOT WHETHER THESE PETITIONERS' BELIEFS CONCERNING WAR
ARE "RELIGIOUS" IN NATURE.  THUS, PETITIONERS' RELIANCE ON UNITED
STATES V. SEEGER, 380 U.S. 163, AND WELSH V. UNITED STATES, 398 U.S.
333, IS MISPLACED.  NOR DO WE DECIDE THAT CONSCIENTIOUS OBJECTION TO A
PARTICULAR WAR NECESSARILY FALLS WITHIN SEC. 6(J)'S EXPRESSLY EXCLUDED
CLASS /13/  OF "ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR PHILOSOPHICAL
VIEWS, OR A MERELY PERSONAL MORAL CODE."  RATHER, WE HOLD THAT CONGRESS
INTENDED TO EXEMPT PERSONS WHO OPPOSE PARTICIPATING IN ALL WAR--
"PARTICIPATION IN WAR IN ANY FORM"-- AND THAT PERSONS WHO OBJECT SOLELY
TO PARTICIPATION IN A PARTICULAR WAR ARE NOT WITHIN THE PURVIEW OF THE
EXEMPTING SECTION, EVEN THOUGH THE LATTER OBJECTION MAY HAVE SUCH ROOTS
IN A CLAIMANT'S CONSCIENCE AND PERSONALITY THAT IT IS "RELIGIOUS" IN
CHARACTER. 

A FURTHER WORD MAY BE SAID TO CLARIFY OUR STATUTORY HOLDING.  APART
FROM ABSTRACT THEOLOGICAL RESERVATIONS, TWO OTHER SORTS OF RESERVATIONS
CONCERNING USE OF FORCE HAVE BEEN THOUGHT BY LOWER COURTS NOT TO DEFEAT
A CONSCIENTIOUS OBJECTOR CLAIM.  WILLINGNESS TO USE FORCE IN SELF
DEFENSE, IN DEFENSE OF HOME AND FAMILY, OR IN DEFENSE AGAINST IMMEDIATE
ACTS OF AGGRESSIVE VIOLENCE TOWARD OTHER PERSONS IN THE COMMUNITY, HAS
NOT BEEN REGARDED AS INCONSISTENT WITH A CLAIM OF CONSCIENTIOUS
OBJECTION TO WAR AS SUCH.  SEE, E.G., UNITED STATES V. HAUGHTON, 413
F.2D 736, 740-742 (CA9 1969); UNITED STATES V. CARROLL, 398 F.2D 651,
655 (CA3 1968).  BUT SURELY WILLINGNESS TO USE FORCE DEFENSIVELY IN THE
PERSONAL SITUATIONS MENTIONED IS QUITE DIFFERENT FROM WILLINGNESS TO
FIGHT IN SOME WARS BUT NOT IN OTHERS.  CF. SICURELLA V. UNITED STATES,
348 U.S.,AT 389.  SOMEWHAT MORE APPOSITE TO THE INSTANT SITUATION ARE
CASES DEALING WITH PERSONS WHO OPPOSE PARTICIPATING IN ALL WARS, BUT
CANNOT SAY WITH COMPLETE CERTAINTY THAT THEIR PRESENT CONVICTIONS AND
EXISTING STATE OF MIND ARE UNALTERABLE.  SEE, E.G., UNITED STATES V.
OWEN, 415 F.2D 383, 390 (CA8 1969).  UNWILLINGNESS TO DENY THE
POSSIBILITY OF A CHANGE OF MIND, IN SOME HYPOTHETICAL FUTURE
CIRCUMSTANCES, MAY BE NO MORE THAN HUMBLE GOOD SENSE, CASTING NO DOUBT
ON THE CLAIMANT'S PRESENT SINCERITY OF BELIEF.  AT ANY RATE THERE IS AN
OBVIOUS DIFFERENCE BETWEEN PRESENT SINCERE OBJECTION TO ALL WAR, AND
PRESENT OPPOSITION TO PARTICIPATION IN A PARTICULAR CONFLICT ONLY. 

        II 

BOTH PETITIONERS ARGUE THAT SEC. 6(J), CONSTRUED TO COVER ONLY
OBJECTORS TO ALL WAR, VIOLATES THE RELIGIOUS CLAUSES OF THE FIRST
AMENDMENT.  THE FIRST AMENDMENT PROVIDES THAT "CONGRESS SHALL MAKE NO
LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF . . . ."  PETITIONERS CONTEND THAT CONGRESS INTERFERES
WITH FREE EXERCISE OF RELIGION BY FAILING TO RELIEVE OBJECTORS TO A
PARTICULAR WAR FROM MILITARY SERVICE, WHEN THE OBJECTION IS RELIGIOUS
OR CONSCIENTIOUS IN NATURE.  WHILE THE TWO RELIGIOUS CLAUSES--
PERTAINING TO "FREE EXERCISE" AND "ESTABLISHMENT" OF RELIGION-- OVERLAP
AND INTERACT IN MANY WAYS, SEE ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374
U.S. 203, 222-223 (1963); FREUND, PUBLIC AID TO PAROCHIAL SCHOOLS, 82
HARV.L.REV.  1680, 1684 (1969), IT IS BEST TO FOCUS FIRST ON
PETITIONERS' OTHER CONTENTION, THAT SEC. 6(J) IS A LAW RESPECTING THE
ESTABLISHMENT OF RELIGION.  FOR DESPITE FREE EXERCISE OVERTONES, THE
GIST OF THE CONSTITUTIONAL COMPLAINT IS THAT SEC. 6(J) IMPERMISSIBLY
DISCRIMINATES AMONG TYPES OF RELIGIOUS BELIEF AND AFFILIATION.  /14/ 
ON THE ASSUMPTION THAT THESE PETITIONERS' BELIEFS CONCERNING WAR HAVE
ROOTS THAT ARE "RELIGIOUS" IN NATURE, WITHIN THE MEANING OF THE
AMENDMENT AS WELL AS THIS COURT'S DECISIONS CONSTRUING SEC. 6(J),
PETITIONERS ASK HOW THEIR CLAIMS TO RELIEF FROM MILITARY SERVICE CAN BE
PERMITTED TO FAIL, WHILE OTHER "RELIGIOUS" CLAIMS ARE UPHELD BY THE
ACT.  IT IS A FACT THAT SEC. 6(J), PROPERLY CONSTRUED HAS THIS EFFECT. 
YET WE CANNOT CONCLUDE IN MECHANICAL FASHION, OR AT ALL, THAT THE

AN ATTACK FOUNDED ON DISPARATE TREATMENT OF "RELIGIOUS" CLAIMS
INVOKES WHAT IS PERHAPS THE CENTRAL PURPOSE OF THE ESTABLISHMENT CLAUSE
- THE PURPOSE OF ENSURING GOVERNMENTAL NEUTRALITY IN MATTERS OF
RELIGION.  SEE EPPERSON V. ARKANSAS, 393 D.S. 97, 103-104 (1968);
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 15-16 (1947).  HERE THERE IS
NO CLAIM THAT EXEMPTING CONSCIENTIOUS OBJECTORS TO WAR AMOUNTS TO AN
OVERREACHING OF SECULAR PURPOSES AND AN UNDUE INVOLVEMENT OF GOVERNMENT
IN AFFAIRS OF RELIGION.  CF. WALZ V. TAX COMMISSION, 397 U.S. 664, 675
(1970); ID., AT 695 (OPINION OF HARLAN, J.).  TO THE CONTRARY,
PETITIONERS ASK FOR GREATER "ENTANGLEMENT" BY JUDICIAL EXPANSION OF THE
EXEMPTION TO COVER OBJECTORS TO PARTICULAR WARS.  NECESSARILY THE
CONSTITUTIONAL VALUE AT ISSUE IS "NEUTRALITY."  AND AS A GENERAL MATTER
IT IS SURELY TRUE THAT THE ESTABLISHMENT CLAUSE PROHIBITS GOVERNMENT
FROM ABANDONING SECULAR PURPOSES IN ORDER TO PUT AN IMPRIMATUR ON ONE
RELIGION, OR ON RELIGION AS SUCH, OR TO FAVOR THE ADHERENTS OF ANY SECT
OR RELIGIOUS ORGANIZATION.  SEE ENGEL V. VITALE, 370 U.S. 421, 430-431
(1962); TORCASO V. WATKINS, 367 U.S. 488, 495 (1961).  THE METAPHOR OF
A "WALL"  OR IMPASSABLE BARRIER BETWEEN CHURCH AND STATE, TAKEN TOO
LITERALLY, MAY MISLEAD CONSTITUTIONAL ANALYSIS, SEE WALZ V. TAX
COMMISSION, SUPRA, AT 668-669; ZORACH V. CLAUSON, 343 U.S. 306, 312-313
(1952), BUT THE ESTABLISHMENT CLAUSE STANDS AT LEAST FOR THE
PROPOSITION THAT WHEN GOVERNMENT ACTIVITIES TOUCH ON THE RELIGIOUS
SPHERE, THEY MUST BE SECULAR IN PURPOSE, EVENHANDED IN OPERATION, AND
NEUTRAL IN PRIMARY IMPACT.  ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374
U.S.,AT 222; ID., AT 231 (BRENNAN, J., CONCURRING); ID., AT 305
(GOLDBERG, J., CONCURRING). 

        A 

THE CRITICAL WEAKNESS OF PETITIONERS' ESTABLISHMENT CLAIM ARISES
FROM THE FACT THAT SEC. 6(J), ON ITS FACE, SIMPLY DOES NOT DISCRIMINATE
ON THE BASIS OF RELIGIOUS AFFILIATION OR RELIGIOUS BELIEF, APART OF
COURSE FROM BELIEFS CONCERNING WAR.  THE SECTION SAYS THAT ANYONE WHO
IS CONSCIENTIOUSLY OPPOSED TO ALL WAR SHALL BE RELIEVED OF MILITARY
SERVICE.  THE SPECIFIED OBJECTION MUST HAVE A GROUNDING IN "RELIGIOUS
TRAINING AND BELIEF," BUT NO PARTICULAR SECTARIAN AFFILIATION OR
THEOLOGICAL POSITION IS REQUIRED.  THE DRAFT ACT OF 1917, SEC. 4, 40
STAT. 78, EXTENDED RELIEF ONLY TO THOSE CONSCIENTIOUS OBJECTORS
AFFILIATED WITH SOME "WELL-RECOGNIZED RELIGIOUS SECT OR ORGANIZATION"
WHOSE PRINCIPLES FORBADE MEMBERS'  PARTICIPATION IN WAR, BUT THE
ATTEMPT TO FOCUS ON PARTICULAR SECTS APPARENTLY BROKE DOWN IN
ADMINISTRATIVE PRACTICE, WELSH V. UNITED STATES, 398 U.S.,AT 367 N. 19
(CONCURRING IN RESULT), AND THE 1940 SELECTIVE TRAINING AND SERVICE
ACT, SEC. 5(G), 54 STAT. 889, DISCARDED ALL SECTARIAN RESTRICTION. 
/15/  THEREAFTER CONGRESS HAS FRAMED THE CONSCIENTIOUS OBJECTOR
EXEMPTION IN BROAD TERMS COMPATIBLE WITH "ITS LONG-ESTABLISHED POLICY
OF NOT PICKING AND CHOOSING AMONG RELIGIOUS BELIEFS."  UNITED STATES V.
SEEGER, 380 U.S.,AT 175. 

THUS, THERE IS NO OCCASION TO CONSIDER THE CLAIM THAT WHEN CONGRESS
GRANTS A BENEFIT EXPRESSLY TO ADHERENTS OF ONE RELIGION, COURTS MUST
EITHER NULLIFY THE GRANT OR SOMEHOW EXTEND THE BENEFIT TO COVER ALL
RELIGIONS.  FOR SEC. 6(J) DOES NOT SINGLE OUT ANY RELIGIOUS
ORGANIZATION OR RELIGIOUS CREED FOR SPECIAL TREATMENT.  RATHER
PETITIONERS' CONTENTION IS THAT SINCE CONGRESS HAS RECOGNIZED ONE SORT
OF CONSCIENTIOUS OBJECTION CONCERNING WAR, WHATEVER ITS RELIGIOUS
BASIS, THE ESTABLISHMENT CLAUSE COMMANDS THAT ANOTHER, DIFFERENT
OBJECTION BE CARVED OUT AND PROTECTED BY THE COURTS.  /16/ 

PROPERLY PHRASED, PETITIONERS' CONTENTION IS THAT THE SPECIAL
STATUTORY STATUS ACCORDED CONSCIENTIOUS OBJECTION TO ALL WAR, BUT NOT
OBJECTION TO A PARTICULAR WAR, WORKS A DE FACTO DISCRIMINATION AMONG
RELIGIONS.  THIS HAPPENS, SAY PETITIONERS, BECAUSE SOME RELIGIOUS
FAITHS THEMSELVES DISTINGUISH BETWEEN PERSONAL PARTICIPATION IN "JUST"
AND IN "UNJUST"  WARS, COMMENDING THE FORMER AND FORBIDDING THE LATTER,
AND THEREFORE ADHERENTS OF SOME RELIGIOUS FAITHS-- AND INDIVIDUALS
WHOSE PERSONAL BELIEFS OF A RELIGIOUS NATURE INCLUDE THE DISTINCTION--
CANNOT OBJECT TO ALL WARS CONSISTENTLY WITH WHAT IS REGARDED AS THE
TRUE IMPERATIVE OF CONSCIENCE.  OF COURSE, THIS CONTENTION OF DE FACTO
RELIGIOUS DISCRIMINATION, RENDERING SEC. 6(J) FATALLY UNDERINCLUSIVE
CANNOT SIMPLY BE BRUSHED ASIDE.  THE QUESTION OF GOVERNMENTAL
NEUTRALITY IS NOT CONCLUDED BY THE OBSERVATION THAT SEC. 6(J) ON ITS
FACE MAKES NO DISCRIMINATION BETWEEN RELIGIONS, FOR THE ESTABLISHMENT
CLAUSE FORBIDS SUBTLE DEPARTURES FROM NEUTRALITY, "RELIGIOUS
GERRYMANDERS," AS WELL AS OBVIOUS ABUSES.  WALZ V. TAX COMMISSION, 397
U.S.,AT 696 (OPINION OF HARLAN, J.).  SEE ALSO BRAUNFELD V. BROWN, 366
U.S. 599, 607 (1961) (OPINION OF WARREN, C.J.); ILLINOIS EX REL.
MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 213, 232 (1948); MCGOWAN
V. MARYLAND, 366 U.S. 420, 442-444 (1961); ID., AT 468 (SEPARATE
OPINION OF FRANKFURTER, J.).  FOR THE REASONS THAT FOLLOW, WE BELIEVE
THAT PETITIONERS HAVE FAILED TO MAKE THE REQUISITE SHOWING WITH RESPECT
TO SEC. 6(J). 

WITH A DESIGN TO FOSTER OR FAVOR ANY SECT RELIGION, OR CLUSTER OF
RELIGIONS.  /17/  THERE ARE CONSIDERATIONS OF A PRAGMATIC NATURE, SUCH
AS THE HOPELESSNESS OF CONVERTING A SINCERE CONSCIENTIOUS OBJECTOR INTO
AN EFFECTIVE FIGHTING MAN, WELSH V. UNITED STATES, 398 U.S.,AT 369
(WHITE, J., DISSENTING), BUT NO DOUBT THE SECTION REFLECTS AS WELL THE
VIEW THAT "IN THE FORUM OF CONSCIENCE, DUTY TO A MORAL POWER HIGHER
THAN THE STATE HAS ALWAYS BEEN MAINTAINED."  UNITED STATES V.
MACINTOSH, 283 U.S. 605, 633 (1931) (HUGHES, C.J., DISSENTING).  SEE
UNITED STATES V. SEEGER, 380 U.S.,AT 170-172.  WE HAVE NOTED THAT THE
LEGISLATIVE MATERIALS SHOW CONGRESSIONAL CONCERN FOR THE HARD CHOICE
THAT CONSCRIPTION WOULD IMPOSE ON CONSCIENTIOUS OBJECTORS TO WAR, AS
WELL AS RESPECT FOR THE VALUE OF CONSCIENTIOUS ACTION AND FOR THE
PRINCIPLE OF SUPREMACY OF CONSCIENCE.  /18/ 

NATURALLY THE CONSIDERATIONS JUST MENTIONED ARE AFFIRMATIVE IN
CHARACTER, GOING TO SUPPORT THE EXISTENCE OF AN EXEMPTION RATHER THAN
ITS RESTRICTION SPECIFICALLY TO PERSONS WHO OBJECT TO ALL WAR.  THE
POINT IS THAT THESE AFFIRMATIVE PURPOSES ARE NEUTRAL IN THE SENSE OF
THE ESTABLISHMENT CLAUSE.  QUITE APART FROM THE QUESTION WHETHER THE
FREE EXERCISE CLAUSE MIGHT REQUIRE SOME SORT OF EXEMPTION, /19/  IT IS
HARDLY IMPERMISSIBLE FOR CONGRESS TO ATTEMPT TO ACCOMMODATE FREE
EXERCISE VALUES, IN LINE WITH "OUR HAPPY TRADITION" OF "AVOIDING
UNNECESSARY CLASHES WITH THE DICTATES OF CONSCIENCE."  UNITED STATES V.
MACINTOSH, SUPRA, AT 634 (HUGHES, C.J., DISSENTING).  SEE ABINGTON
SCHOOL DISTRICT V. SCHEMPP, 374 U.S.,AT 294-299 (BRENNAN, J.,
CONCURRING); ID., AT 306 (GOLDBERG, J., CONCURRING); ID., AT 309
(STEWART, J., DISSENTING.  SEE ALSO WELSH V. UNITED STATES, 398 U.S.,AT
370-373 (WHITE, J., DISSENTING).  "NEUTRALITY" IN MATTERS OF RELIGION
IS NOT INCONSISTENT WITH "BENEVOLENCE" BY WAY OF EXEMPTIONS FROM
ONEROUS DUTIES, WALZ V. TAX COMMISSION, 397 U.S.,AT 669, SO LONG AS AN
EXEMPTION IS TAILORED BROADLY ENOUGH THAT IT REFLECTS VALID SECULAR
PURPOSES.  IN THE DRAFT AREA FOR 30 YEARS THE EXEMPTING PROVISION HAS
FOCUSED ON INDIVIDUAL CONSCIENTIOUS BELIEF, NOT ON SECTARIAN
AFFILIATION.  THE RELEVANT INDIVIDUAL BELIEF IS SIMPLY OBJECTION TO ALL
WAR, NOT ADHERENCE TO ANY EXTRANEOUS THEOLOGICAL VIEWPOINT.  AND WHILE
THE OBJECTION MUST HAVE ROOTS IN CONSCIENCE AND PERSONALITY THAT ARE
"RELIGIOUS" IN NATURE, THIS REQUIREMENT HAS NEVER BEEN CONSTRUED TO
ELEVATE CONVENTIONAL PIETY OR RELIGIOSITY OF ANY KIND ABOVE THE
IMPERATIVES OF A PERSONAL FAITH. 

IN THIS STATE OF AFFAIRS IT IS IMPOSSIBLE TO SAY THAT SEC. 6(J)
INTRUDES UPON "VOLUNTARISM" IN RELIGIOUS LIFE, SEE ID., AT 694-696
(OPINION OF HARLAN, J.), OR THAT THE CONGRESSIONAL PURPOSE IN ENACTING
SEC. 6(J) IS TO PROMOTE OR FOSTER THOSE RELIGIOUS ORGANIZATIONS THAT
TRADITIONALLY HAVE TAUGHT THE DUTY TO ABSTAIN FROM PARTICIPATION IN ANY
WAR.  A CLAIMANT, SEEKING JUDICIAL PROTECTION FOR HIS OWN CONSCIENTIOUS
BELIEFS, WOULD BE HARD PUT TO ARGUE THAT SEC. 6(J) ENCOURAGES
MEMBERSHIP IN PUTATIVELY "FAVORED" RELIGIOUS ORGANIZATIONS, FOR THE
PAINFUL DILEMMA OF THE SINCERE CONSCIENTIOUS OBJECTOR ARISES PRECISELY
BECAUSE HE FEELS HIMSELF BOUND IN CONSCIENCE NOT TO COMPROMISE HIS
BELIEFS OR AFFILIATIONS. 

        B 

WE CONCLUDE NOT ONLY THAT THE AFFIRMATIVE PURPOSES UNDERLYING SEC.
6(J) ARE NEUTRAL AND SECULAR, BUT ALSO THAT VALID NEUTRAL REASONS EXIST
FOR LIMITING THE EXEMPTION TO ALL WAR, AND THAT THE SECTION THEREFORE
CANNOT BE SAID TO REFLECT A RELIGIOUS PREFERENCE. 

APART FROM THE GOVERNMENT'S NEED FOR MANPOWER, PERHAPS THE CENTRAL
INTEREST INVOLVED IN THE ADMINISTRATION OF CONSCRIPTION LAWS IS THE
INTEREST IN MAINTAINING A FAIR SYSTEM FOR DETERMINING "WHO SERVES WHEN
NOT ALL SERVE."  /20/  WHEN THE GOVERNMENT EXACTS SO MUCH, THE
IMPORTANCE OF FAIR, EVENHANDED, AND UNIFORM DECISIONMAKING IS OBVIOUSLY
INTENSIFIED.  THE GOVERNMENT ARGUES THAT THE INTEREST IN FAIRNESS WOULD
BE JEOPARDIZED BY EXPANSION OF SEC. 6(J) TO INCLUDE CONSCIENTIOUS
OBJECTION TO A PARTICULAR WAR.  THE CONTENTION IS THAT THE CLAIM TO
RELIEF ON ACCOUNT OF SUCH OBJECTION IS INTRINSICALLY A CLAIM OF
UNCERTAIN DIMENSIONS, AND THAT GRANTING THE CLAIM IN THEORY WOULD
INVOLVE A REAL DANGER OF ERRATIC OR EVEN DISCRIMINATORY DECISIONMAKING
IN ADMINISTRATIVE PRACTICE. 

A VIRTUALLY LIMITLESS VARIETY OF BELIEFS ARE SUBSUMABLE UNDER THE
RUBRIC, "OBJECTION TO A PARTICULAR WAR."  /21/  ALL THE FACTORS THAT
MIGHT GO INTO NONCONSCIENTIOUS DISSENT FROM POLICY, ALSO MIGHT APPEAR
AS THE CONCRETE BASIS OF AN OBJECTION THAT HAS ROOTS AS WELL IN
CONSCIENCE AND RELIGION.  INDEED, OVER THE REALM OF POSSIBLE
SITUATIONS, OPPOSITION TO A PARTICULAR WAR MAY MORE LIKELY BE POLITICAL
AND NONCONSCIENTIOUS, THAN OTHERWISE.  SEE UNITED STATES V. KAUTEN, 133
F.2D, AT 708.  THE DIFFICULTIES OF SORTING THE TWO, WITH A SURE HAND,
ARE CONSIDERABLE.  MOREOVER, THE BELIEF THAT A PARTICULAR WAR AT A
PARTICULAR TIME IS UNJUST IS BY ITS NATURE CHANGEABLE AND SUBJECT TO
NULLIFICATION BY CHANGING EVENTS.  SINCE OBJECTION MAY FASTEN ON ANY OF
AN ENORMOUS NUMBER OF VARIABLES, THE CLAIM IS ULTIMATELY SUBJECTIVE,
DEPENDING ON THE CLAIMANT'S VIEW OF THE FACTS IN RELATION TO HIS
JUDGMENT THAT A GIVEN FACTOR OR CONGERIES OF FACTORS COLORS THE
CHARACTER OF THE WAR AS A WHOLE.  IN SHORT, IT IS NOT AT ALL OBVIOUS IN
THEORY WHAT SORTS OF OBJECTIONS SHOULD BE DEEMED SUFFICIENT TO EXCUSE
AN OBJECTOR, AND THERE IS CONSIDERABLE FORCE IN THE GOVERNMENT'S
CONTENTION THAT A PROGRAM OF EXCUSING OBJECTORS TO PARTICULAR WARS MAY
BE "IMPOSSIBLE TO CONDUCT WITH ANY HOPE OF REACHING FAIR AND CONSISTENT
RESULTS . . . ."  BRIEF 28. 

FOR THEIR PART, PETITIONERS MAKE NO ATTEMPT TO PROVIDE A CAREFUL
DEFINITION OF THE CLAIM TO EXEMPTION THAT THEY ASK THE COURTS TO CARVE
OUT AND PROTECT.  THEY DO NOT EXPLAIN WHY OBJECTION TO A PARTICULAR
CONFLICT-- MUCH LESS AN OBJECTION THAT FOCUSES ON A PARTICULAR FACET OF
A CONFLICT-- SHOULD EXCUSE THE OBJECTOR FROM ALL MILITARY SERVICE
WHATEVER, EVEN FROM MILITARY OPERATIONS THAT ARE CONNECTED WITH THE
CONFLICT AT HAND IN REMOTE OR TENUOUS WAYS.  /22/  THEY SUGGEST NO
SOLUTION TO THE PROBLEMS ARISING FROM THE FACT THAT ALTERED
CIRCUMSTANCES MAY QUICKLY RENDER THE OBJECTION TO MILITARY SERVICE
MOOT. 

TO VIEW THE PROBLEM OF FAIRNESS AND EVENHANDED DECISIONMAKING, IN
THE PRESENT CONTEXT, AS MERELY A COMMONPLACE CHORE OF WEEDING OUT
"SPURIOUS CLAIMS," IS TO MINIMIZE SUBSTANTIAL DIFFICULTIES OF REAL
CONCERN TO A RESPONSIBLE LEGISLATIVE BODY.  FOR EXAMPLE, UNDER THE
PETITIONERS' UNARTICULATED SCHEME FOR EXEMPTION, AN OBJECTOR'S CLAIM TO
EXEMPTION MIGHT BE BASED ON SOME FEATURE OF A CURRENT CONFLICT THAT
MOST WOULD REGARD AS INCIDENTAL, OR MIGHT BE PREDICATED ON A VIEW OF
THE FACTS THAT MOST WOULD REGARD AS MISTAKEN.  THE PARTICULAR COMPLAINT
ABOUT THE WAR MAY ITSELF BE "SINCERE," BUT IT IS DIFFICULT TO KNOW HOW
TO JUDGE THE "SINCERITY" OF THE OBJECTOR'S CONCLUSION THAT THE WAR IN
TOTO IS UNJUST AND THAT ANY PERSONAL INVOLVEMENT WOULD CONTRAVENE
CONSCIENCE AND RELIGION.  TO BE SURE WE HAVE RULED, IN CONNECTION WITH
SEC. 6(J), THAT "THE 'TRUTH' OF A BELIEF IS NOT OPEN TO QUESTION";
RATHER, THE QUESTION IS WHETHER THE OBJECTOR'S BELIEFS ARE "TRULY
HELD."  UNITED STATES V. SEEGER, 380 U.S.,AT 185.  SEE ALSO UNITED
STATES V. BALLARD, 322 U.S. 78 (1944).  BUT WE MUST ALSO RECOGNIZE THAT
"SINCERITY" IS A CONCEPT THAT CAN BEAR ONLY SO MUCH ADJUDICATIVE
WEIGHT. 

OURS IS A NATION OF ENORMOUS HETEROGENEITY IN RESPECT OF POLITICAL
VIEWS, MORAL CODES, AND RELIGIOUS PERSUASIONS.  IT DOES NOT BESPEAK AN
ESTABLISHING OF RELIGION FOR CONGRESS TO FORGO THE ENTERPRISE OF
DISTINGUISHING THOSE WHOSE DISSENT HAS SOME CONSCIENTIOUS BASIS FROM
THOSE WHO SIMPLY DISSENT.  THERE IS A DANGER THAT AS BETWEEN TWO WOULD
BE OBJECTORS, BOTH HAVING THE SAME COMPLAINT AGAINST A WAR, THAT
OBJECTOR WOULD SUCCEED WHO IS MORE ARTICULATE, BETTER EDUCATED, OR
BETTER COUNSELED.  THERE IS EVEN A DANGER OF UNINTENDED RELIGIOUS
DISCRIMINATION-- A DANGER THAT A CLAIM'S CHANCES OF SUCCESS WOULD BE
GREATER THE MORE FAMILIAR OR SALIENT THE CLAIM'S CONNECTION WITH
CONVENTIONAL RELIGIOSITY COULD BE MADE TO APPEAR.  AT ANY RATE, IT IS
TRUE THAT "THE MORE DISCRIMINATING AND COMPLICATED THE BASIS OF
CLASSIFICATION FOR AN EXEMPTION-- EVEN A NEUTRAL ONE-- THE GREATER THE
POTENTIAL FOR STATE INVOLVEMENT" IN DETERMINING THE CHARACTER OF
PERSONS' BELIEFS AND AFFILIATIONS, THUS "ENTANGLING) GOVERNMENT IN
DIFFICULT CLASSIFICATIONS OF WHAT IS OR IS NOT RELIGIOUS," OR WHAT IS
OR IS NOT CONSCIENTIOUS.  WALZ V. TAX COMMISSION, 397 U.S.,AT 698-699
(OPINION OF HARLAN, J.).  CF. PRESBYTERIAN CHURCH V. MARY ELIZABETH
BLUE HULL CHURCH, 393 U.S. 440 (1969).  WHILE THE DANGER OF ERRATIC
DECISIONMAKING UNFORTUNATELY EXISTS IN ANY SYSTEM OF CONSCRIPTION THAT
TAKES INDIVIDUAL DIFFERENCES INTO ACCOUNT, NO DOUBT THE DANGERS WOULD
BE ENHANCED IF A CONSCIENTIOUS OBJECTION OF INDETERMINATE SCOPE WERE
HONORED IN THEORY. 

IN ADDITION TO THE INTEREST IN FAIRNESS, THE GOVERNMENT CONTENDS
THAT NEUTRAL SECULAR REASONS FOR THE LINE DRAWN BY SEC. 6(J)-- BETWEEN
OBJECTION TO ALL WAR AND OBJECTION TO A PARTICULAR WAR-- MAY BE FOUND
IN THE NATURE OF THE CONSCIENTIOUS CLAIM THAT THESE PETITIONERS
ASSERT.  OPPOSITION TO A PARTICULAR WAR, STATES THE GOVERNMENT'S BRIEF,
NECESSARILY INVOLVES A JUDGMENT "THAT IS POLITICAL AND PARTICULAR," ONE
"BASED ON THE SAME POLITICAL, SOCIOLOGICAL AND ECONOMIC FACTORS THAT
THE GOVERNMENT NECESSARILY CONSIDERED" IN DECIDING TO ENGAGE IN A
PARTICULAR CONFLICT.  BRIEF 24-26.  TAKEN IN A NARROW SENSE, THESE
CONSIDERATIONS DO NOT JUSTIFY THE DISTINCTION AT ISSUE, FOR HOWEVER
"POLITICAL AND PARTICULAR" THE JUDGMENT UNDERLYING OBJECTION TO A
PARTICULAR WAR, THE OBJECTION STILL MIGHT BE ROOTED IN RELIGION AND
CONSCIENCE, AND ALTHOUGH THE FACTORS UNDERLYING THAT OBJECTION WERE
CONSIDERED AND REJECTED IN THE PROCESS OF DEMOCRATIC DECISIONMAKING,
LIKEWISE THE VIEWPOINT OF AN OBJECTOR TO ALL WAR WAS NO DOUBT
CONSIDERED AND "NECESSARILY" REJECTED AS WELL.  NONETHELESS, IT CAN BE
SEEN ON A CLOSER VIEW THAT THIS LINE OF ANALYSIS, CONJOINED WITH
CONCERN FOR FAIRNESS, DOES SUPPORT THE STATUTORY DISTINCTION. 

TACIT AT LEAST IN THE GOVERNMENT'S VIEW OF THE INSTANT CASES IS THE
CONTENTION THAT THE LIMITS OF SEC. 6(J) SERVE AN OVERRIDING INTEREST IN
PROTECTING THE INTEGRITY OF DEMOCRATIC DECISIONMAKING AGAINST CLAIMS TO
INDIVIDUAL NONCOMPLIANCE.  DESPITE EMPHASIS ON CLAIMS THAT HAVE A
"POLITICAL AND PARTICULAR" COMPONENT, THE LOGIC OF THE CONTENTION IS
SWEEPING.  THUS THE "INTEREST" INVOKED IS HIGHLY PROBLEMATICAL, FOR IT
WOULD SEEM TO JUSTIFY GOVERNMENTAL REFUSAL TO ACCORD ANY BREATHING
SPACE WHATEVER TO NONCOMPLIANT CONDUCT INSPIRED BY IMPERATIVES OF
RELIGION AND CONSCIENCE. 

ON THE OTHER HAND, SOME HAVE PERCEIVED A DANGER THAT EXEMPTING PERSONS
WHO DISSENT FROM A PARTICULAR WAR, ALBEIT ON GROUNDS OF CONSCIENCE AND
RELIGION IN PART, WOULD "OPEN THE DOORS TO A GENERAL THEORY OF
SELECTIVE DISOBEDIENCE TO LAW" AND JEOPARDIZE THE BINDING QUALITY OF
DEMOCRATIC DECISIONS.  REPORT OF THE NATIONAL ADVISORY COMMISSION ON
SELECTIVE SERVICE, IN PURSUIT OF EQUITY:  WHO SERVES WHEN NOT ALL
SERVE?  50 (1967).  SEE ALSO HAMILTON V. REGENTS, 293 U.S. 245, 268
(1934) (CARDOZO, J., CONCURRING).  OTHER FIELDS OF LEGAL OBLIGATION
ASIDE, IT IS UNDOUBTED THAT THE NATURE OF CONSCRIPTION MUCH LESS WAR
ITSELF, REQUIRES THE PERSONAL DESIRES AND PERHAPS THE DISSENTING VIEWS
OF THOSE WHO MUST SERVE TO BE SUBORDINATED IN SOME DEGREE TO THE
PURSUIT OF PUBLIC PURPOSES.  IT IS ALSO TRUE THAT OPPOSITION TO A
PARTICULAR WAR DOES DEPEND INTER ALIA UPON PARTICULARISTIC FACTUAL
BELIEFS AND POLICY ASSESSMENTS BELIEFS AND ASSESSMENTS THAT PRESUMABLY
WERE OVERRIDDEN BY THE GOVERNMENTS THAT DECIDES TO COMMIT LIVES AND
RESOURCES TO A TRIAL OF ARMS.  FURTHER, IT IS NOT UNREASONABLE TO
SUPPOSE THAT SOME PERSONS WHO ARE NOT PREPARED TO ASSERT A
CONSCIENTIOUS OBJECTION, AND INSTEAD ACCEPT THE HARDSHIPS AND RISKS OF
MILITARY SERVICE, MAY WELL AGREE AT ALL POINTS WITH THE OBJECTOR, YET
CONCLUDE, AS A MATTER OF CONSCIENCE, THAT THEY ARE PERSONALLY BOUND BY
THE DECISION OF THE DEMOCRATIC PROCESS.  THE FEAR OF THE NATIONAL
ADVISORY COMMISSION ON SELECTIVE SERVICE, APPARENTLY, IS THAT EXEMPTION
OF OBJECTORS TO PARTICULAR WARS WOULD WEAKEN THE RESOLVE OF THOSE WHO
OTHERWISE WOULD FEEL THEMSELVES BOUND TO SERVE DESPITE PERSONAL COST,
UNEASINESS AT THE PROSPECT OF VIOLENCE, OR EVEN SERIOUS MORAL
RESERVATIONS OR POLICY OBJECTIONS CONCERNING THE PARTICULAR CONFLICT. 

WE NEED NOT AND DO NOT ADOPT THE VIEW THAT A CATEGORICAL, GLOBAL
"INTEREST" IN STIFLING INDIVIDUALISTIC CLAIMS TO NONCOMPLIANCE, IN
RESPECT OF DUTIES GENERALLY EXACTED, IS THE NEUTRAL AND SECULAR BASIS
OF SEC. 6(J).  AS IS SHOWN BY THE LONG HISTORY OF THE VERY PROVISION
UNDER DISCUSSION, IT IS NOT INCONSISTENT WITH ORDERLY DEMOCRATIC
GOVERNMENT FOR INDIVIDUALS TO BE EXEMPTED BY LAW, ON ACCOUNT OF SPECIAL
CHARACTERISTICS, FROM GENERAL DUTIES OF A BURDENSOME NATURE.  BUT REAL
DANGERS-- DANGERS OF THE KIND FEARED BY THE COMMISSION-- MIGHT ARISE IF
AN EXEMPTION WERE MADE AVAILABLE THAT IN ITS NATURE COULD NOT BE
ADMINISTERED FAIRLY AND UNIFORMLY OVER THE RUN OF RELEVANT FACT
SITUATIONS.  SHOULO IT BE THOUGHT THAT THOSE WHO GO TO WAR ARE CHOSEN
UNFAIRLY OR CAPRICIOUSLY, THEN A MOOD OF BITTERNESS AND CYNICISM MIGHT
CORRODE THE SPIRIT OF PUBLIC SERVICE AND THE VALUES OF WILLING
PERFORMANCE OF A CITIZENS' DUTIES THAT ARE THE VERY HEART OF FREE
GOVERNMENT.  IN SHORT, THE CONSIDERATIONS MENTIONED IN THE PREVIOUS
PARAGRAPH, WHEN SEEN IN CONJUNCTION WITH THE CENTRAL PROBLEM OF
FAIRNESS, ARE WITHOUT QUESTION PROPERLY COGNIZABLE BY CONGRESS.  IN
LIGHT OF THESE VALID CONCERNS, WE CONCLUDE THAT IT IS SUPPORTABLE FOR
CONGRESS TO HAVE DECIDED THAT THE OBJECTOR TO ALL WAR-- TO ALL KILLING
IN WAR-- HAS A CLAIM THAT IS DISTINCT ENOUGH AND INTENSE ENOUGH TO
JUSTIFY SPECIAL STATUS, WHILE THE OBJECTOR TO A PARTICULAR WAR DOES
NOT. 

OF COURSE, WE DO NOT SUGGEST THAT CONGRESS WOULD HAVE ACTED
IRRATIONALLY OR UNREASONABLY HAD IT DECIDED TO EXEMPT THOSE WHO OBJECT
TO PARTICULAR WARS.  OUR ANALYSIS OF THE POLICIES OF SEC. 6(J) IS
UNDERTAKEN IN ORDER TO DETERMINE THE EXISTENCE VEL NON OF A NEUTRAL,
SECULAR JUSTIFICATION FOR THE LINES CONGRESS HAS DRAWN.  WE FIND THAT
JUSTIFYING REASONS EXIST AND THEREFORE HOLD THAT THE ESTABLISHMENT
CLAUSE IS NOT VIOLATED. 

        III 

PETITIONERS' REMAINING CONTENTION IS THAT CONGRESS INTERFERES WITH
THE FREE EXERCISE OF RELIGION BY CONSCRIPTING PERSONS WHO OPPOSE A
PARTICULAR WAR ON GROUNDS OF CONSCIENCE AND RELIGION.  STRICTLY VIEWED,
THIS COMPLAINT DOES NOT IMPLICATE PROBLEMS OF COMPARATIVE TREATMENT OF
DIFFERENT SORTS OF OBJECTORS, BUT RATHER MAY BE EXAMINED IN SOME
ISOLATION FROM THE CIRCUMSTANCE THAT CONGRESS HAS CHOSEN TO EXEMPT
THOSE WHO CONSCIENTIOUSLY OBJECT TO ALL WAR.  /23/  AND OUR HOLDING
THAT SEC. 6(J) COMPORTS WITH THE ESTABLISHMENT CLUASE DOES NOT
AUTOMATICALLY SETTLE THE PRESENT ISSUE.  FOR DESPITE A GENERAL HARMONY
OF PURPOSE BETWEEN THE TWO RELIGIOUS CLAUSES OF THE FIRST AMENDMENT,
THE FREE EXERCISE CLAUSE NO DOUBT HAS A REACH OF ITS OWN.  ABINGTON
SCHOOL DISTRICT V. SCHEMPP, 374 U.S.,AT 222-223. 

NONETHELESS, OUR ANALYSIS OF SEC. 6(J) FOR ESTABLISHMENT CLAUSE
PURPOSES HAS REVEALED GOVERNMENTAL INTERESTS OF A KIND AND WEIGHT
SUFFICIENT TO JUSTIFY UNDER THE FREE EXERCISE CLAUSE THE IMPACT OF THE
CONSCRIPTION LAWS ON THOSE WHO OBJECT TO PARTICULAR WARS. 

OUR CASES DO NOT AT THEIR FARTHEST REACH SUPPORT THE PROPOSITION THAT
A STANCE OF CONSCIENTIOUS OPPOSITION RELIEVES AN OBJECTOR FROM ANY
COLLIDING DUTY FIXED BY A DEMOCRATIC GOVERNMENT.  SEE CANTWELL V.
CONNECTICUT , 310 U.S. 296, 303-304 (1940); JACOBSON V. MASSACHUSETTS,
197 U.S. 11, 29 (1905); CF. CLEVELAND V. UNITED STATES 329 U.S. 14, 20
(1946).  TO BE SURE, THE FREE EXERCISE CLAUSE BARS "GOVERNMENTAL
REGULATION OF RELIGIOUS BELIEFS AS SUCH," SHERBERT V. VERNER, 374 U.S.
398, 402 (1963), OR INTERFERENCE WITH THE DISSEMINATION OF RELIGIOUS
IDEAS.  SEE FOWLER V. RHODE ISLAND, 345 U.S. 67 (1953); FOLLETT V.
MCCORMICK, 321 U.S. 573 (1944); MURDOCK V. PENNSYLVANIA, 319 U.S. 105
(1943).  IT PROHIBITS MISUSE OF SECULAR GOVERNMENTAL PROGRAMS "TO
IMPEDE THE OBSERVANCE OF ONE OR ALL RELIGIOUS OR . . . TO DISCRIMINATE
INVIDIOUSLY BETWEEN RELIGIONS, . . . EVEN THOUGH THE BURDEN MAY BE
CHARACTERIZED AS BEING ONLY INDIRECT."  BRAUNFELD V. BROWN, 366 U.S.,AT
607 (OPINION OF WARREN, C.J.).  AND EVEN AS TO NEUTRAL PROHIBITORY OR
REGULATORY LAWS HAVING SECULAR AIMS, THE FREE EXERCISE CLAUSE MAY
CONDEMN CERTAIN APPLICATIONS CLASHING WITH IMPERATIVES OF RELIGION AND
CONSCIENCE, WHEN THE BURDEN ON FIRST AMENDMENT VALUES IS NOT
JUSTIFIABLE IN TERMS OF THE GOVERNMENT'S VALID AIMS.  SEE ID.; SHERBERT
V. VERNER, SUPRA. SEE GENERALLY CLARK, GUIDELINES FOR THE FREE EXERCISE
CLAUSE, 83 HARV.L.REV.  327 (1969).  HOWEVER, THE IMPACT OF
CONSCRIPTION ON OBJECTORS TO PARTICULAR WARS IS FAR FROM UNJUSTIFIED. 
THE CONSCRIPTION LAWS, APPLIED TO SUCH PERSONS AS TO OTHERS, ARE NOT
DESIGNED TO INTERFERE WITH ANY RELIGIOUS RITUAL OR PRACTICE, AND DO NOT
WORK A PENALTY AGAINST ANY THEOLOGICAL POSITION.  THE INCIDENTAL
BURDENS FELT BY PERSONS IN PETITIONERS' POSITION ARE STRICTLY JUSTIFIED
BY SUBSTANTIAL GOVERNMENTAL INTERESTS THAT RELATE DIRECTLY TO THE VERY
IMPACTS QUESTIONED.  AND MORE BROADLY, OF COURSE, THERE IS THE
GOVERNMENT'S INTEREST IN PROCURING THE MANPOWER NECESSARY FOR MILITARY
PURPOSES, PURSUANT TO THE CONSTITUTIONAL GRANT OF POWER TO CONGRESS TO
RAISE AND SUPPORT ARMIES.  ART. I, SEC. 8. 

        IV 

SINCE PETITIONERS' STATUTORY AND CONSTITUTIONAL CLAIMS TO RELIEF
FROM MILITARY SERVICE ARE WITHOUT MERIT, IT FOLLOWS THAT IN GILLETTE'S
CASE (NO. 85) THERE WAS A BASIS IN FACT TO SUPPORT ADMINISTRATIVE
DENIAL OF EXEMPTION, AND THAT IN NEGRE'S CASE (NO. 325) THERE WAS A
BASIS IN FACT TO SUPPORT THE ARMY'S DENIAL OF A DISCHARGE. 
ACCORDINGLY, THE JUDGMENTS BELOW ARE

              AFFIRMED. 

/1/  TOGETHER WITH NO. 325, NEGRE V. LARSEN ET AL., ON CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 

/1A/  THE RELEVANT PROVISIONS ARE SET DOWN INFRA, AT NN. 4, 5, AND
6, AND AT ACCOMPANYING TEXT. 

/2/  SINCE PETITIONER NEGRE IS NO LONGER ON ACTIVE DUTY IN THE ARMY,
THE DISPUTE IN NO. 325 LACKS THE SAME INTENSITY THAT WAS PRESENT AT THE
TIME THAT NEGRE COMMENCED HIS HABEAS ACTION.  HOWEVER, SOME POSSIBILITY
OF VIETNAM DUTY APPARENTLY REMAINS, AND THE GOVERNMENT SEEMS TO CONCEDE
THAT THE CASE HAS NOT BEEN MOOTED.  WE THEREFORE PURSUE THE MATTER NO
FURTHER. 

/3/  BOTH PETITIONERS ASKED TO BE SPARED ALL MILITARY
RESPONSIBILITIES BECAUSE OF THEIR OBJECTIONS TO THE VIETNAM CONFLICT--
GILLETTE SOUGHT EXEMPTION FROM THE DRAFT; NEGRE SOUGHT DISCHARGE FROM
THE ARMY. 

/4/  SECTION 6(J) PROVIDES FURTHER: 

"AS USED IN THIS SUBSECTION, THE TERM 'RELIGIOUS TRAINING AND
BELIEF' 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 . . . , 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, IN LIEU OF SUCH INDUCTION, BE ORDERED . . . TO
PERFORM . . . CIVILIAN WORK CONTRIBUTING TO THE MAINTENANCE OF THE
NATIONAL HEALTH, SAFETY, OR INTEREST . . . " 

/5/  THE DIRECTIVE STATES: 

"IV.  A. NATIONAL POLICY.  (THE CONGRESS . . . HAS DEEMED IT MORE
ESSENTIAL TO RESPECT A MAN'S RELIGIOUS BELIEFS THAN TO FORCE HIM TO
SERVE IN THE ARMED FORCES AND ACCORDINGLY HAS PROVIDED THAT A PERSON
HAVING BONA FIDE RELIGIOUS OBJECTION TO PARTICIPATION IN WAR IN ANY
FORM . . . SHALL NOT BE INDUCTED INTO THE ARMED FORCES . . . 

"IV.  B. DOD POLICY.  CONSISTENT WITH THIS NATIONAL POLICY, BONA
FIDE CONSCIENTIOUS OBJECTION . . . BY PERSONS WHO ARE MEMBERS OF THE
ARMED FORCES WILL BE RECOGNIZED TO THE EXTENT PRACTICABLE AND
EQUITABLE.  OBJECTION TO A PARTICULAR WAR WILL NOT BE RECOGNIZED." 

/6/  DOD DIRECTIVE NO. 1300.6 ITSELF STATES: 

"SINCE IT IS IN THE NATIONAL INTEREST TO JUDGE ALL CLAIMS OF
CONSCIENTIOUS OBJECTION BY THE SAME STANDARDS, WHETHER MADE BEFORE OR
AFTER ENTERING MILITARY SERVICE, SELECTIVE SERVICE SYSTEM STANDARDS
USED IN DETERMINING CONSCIENTIOUS OBJECTOR STATUS) OF DRAFT REGISTRANTS
PRIOR TO INDUCTION SHALL APPLY TO SERVICEMEN WHO CLAIM CONSCIENTIOUS
OBJECTION AFTER ENTERING MILITARY SERVICE." 

SEE ALSO, E.G., ARMY REGULATIONS AR 635-20 (JULY 31, 1970), AND AR
135-25 (SEPT. 2, 1970). 

/7/  MOREOVER, A READING THAT ATTACHES THE WORDS "IN ANY FORM" TO
"PARTICIPATION," RATHER THAN TO "WAR," WOULD RENDER SEC. 6(J) SOMEWHAT
INCOHERENT.  FOR THAT SECTION ITSELF ALLOWS A PERSON HAVING THE
SPECIFIED CONSCIENTIOUS SCRUPLES TO BE ASSIGNED TO NONCOMBATANT SERVICE
IN THE ARMED FORCES, IF HE IS NOT "FOUND TO BE CONSCIENTIOUSLY OPPOSED
TO PARTICIPATION IN SUCH NONCOMBATANT SERVICE."  SEE N. 4, SUPRA.  IN
SHORT, CONGRESS HAD IN MIND THAT CONSCIENTIOUS SCRUPLES SHOULD BE
HONORED IF THEY IMPLICATE OPPOSITION TO "WAR IN ANY FORM," EVEN THOUGH
THE OBJECTOR MAY NOT BE AVERSE TO A NONCOMBATANT FORM OF
"PARTICIPATION." 

/8/  THE ROOTS OF SEC. 6(J) MAY BE FOUND IN THE EARLIEST PERIOD OF
AMERICAN HISTORY.  SEE GENERALLY SELECTIVE SERVICE SYSTEM MONOGRAPH NO.
11, CONSCIENTIOUS OBJECTION 29-38 (1950).  IN 1775 THE CONTINENTAL
CONGRESS ANNOUNCED ITS RESOLVE TO RESPECT THE BELIEFS OF "PEOPLE WHO
FROM RELIGIOUS PRINCIPLES CANNOT BEAR ARMS IN ANY CASE . . . " ID., AT
33-34.  AGAINS?  A BACKGROUND OF STATE CONSTITUTIONAL AND STATUTORY LAW
EXEMPTING CONSCIENTIOUS OBJECTORS FROM MILITIA SERVICE, SEE UNITED
STATES V. SEEGER, 380 U.S. 163, 170-171 (1965), CONGRESS IN 1864
EXPLICITLY EXEMPTED FROM THE FEDERAL DRAFT PERSONS WHO "ARE
CONSCIENTIOUSLY OPPOSED TO THE BEARING OF ARMS, AND WHO ARE PROHIBITED
FROM DOING SO BY THE RULES AND ARTICLES OF FAITH (OF THEIR) RELIGIOUS
DENOMINATIONS."  13 STAT. 9.  THE DRAFT ACT OF 1917 RELIEVED FROM
MILITARY SERVICE ANY PERSON WHO BELONGED TO "ANY WELL-RECOGNIZED
RELIGIOUS SECT OR ORGANIZATION . . . WHOSE EXISTING CREED OR PRINCIPLES
FORBID ITS MEMBERS TO PARTICIPATE IN WAR IN ANY FORM AND WHOSE
RELIGIOUS CONVICTIONS ARE AGAINST WAR OR PARTICIPATION THEREIN . . . "
40 STAT. 78.  THE SENATE REGJECTED AN AMENDMENT TO THE 1917 LEGILSATION
THAT WOULD HAVE GRANTED EXEMPTIONS "(ON THE GROUND OF A CONSCIENTIOUS
OBJECTION TO THE UNDERTAKING OF COMBATANT SERVICE IN THE PRESENT WAR." 
55 CONG.REC.  1478.  SUBSEQUENT EXEMPTION CLAUSES HAVE ELIMINATED ANY
RESTRICTION IN TERMS OF SECTARIAN AFFILIATION, AND HAVE MADE THE
EXEMPTION BROADLY AVAILABLE TO ANY CONSCIENTIOUS OBJECTOR WHOSE
SCRUPLES CONCERNING PARTICIPATION IN WAR ARE GROUNDED IN "RELIGIOUS
TRAINING AND BELIEF."  SELECTIVE TRAINING AND SERVICE ACT OF 1940, SEC.
5(G), 54 STAT. 889.  BUT THE PHRASE "PARTICIPATION IN WAR IN ANY FORM,"
USED IN THE 1917 ENACTMENT, HAS, OF COURSE, SURVIVED THE VARIOUS
REVISIONS OF THE EXEMPTING PROVISION. 

/9/  PETITIONERS' SOLE ARGUMENT HAVING SPECIFIC REFERENCE TO THE
LEGISLATIVE MATERIALS IS UTTERLY FLAWED.  IT RUNS AS FOLLOWS:  THE 1948
REVISION OF THE EXEMPTING PROVISION WAS INSPIRED IN PART BY THE DISSENT
OF CHIEF JUSTICE HUGHES IN UNITED STATES V. MACINTOSH, 283 U.S. 605
(1931); MACINTOSH INVOLVED A CLAIMANT WHOSE CONSCIENTIOUS SCRUPLES
IMPLICATED ONLY "UNJUST" WARS, AND THE DISSENT REMARKED THAT "EMINENT
STATESMEN HERE AND ABROAD" HAVE HELD SUCH VIEWS, ID., AT 635; THUS
CONGRESS CANNOT FAIRLY BE DEEMED TO HAVE EXCLUDED OBJECTORS TO
PARTICULAR WARS FROM THE 1948 EXEMPTING PROVISION, PREDECESSOR TO THE
PRESENT SEC. 6(J).  HOWEVER, THE VERY MOST THAT CAN BE SAID ABOUT
CONGRESSIONAL RELIANCE ON THE MACINTOSH DISSENT IS THAT CONGRESS USED
IT IN FASHIONING A DEFINITION OF THE WORDS "RELIGIOUS TRAINING AND
BELIEF."  SEE UNITED STATES V. SEEGER, 380 U.S.,AT 172-179.  THE
LANGUAGE OF THE EXEMPTING PROVISION THAT IS RELEVANT TO THE PRESENT
DISPUTE-- "PARTICIPATION IN WAR IN ANY FORM"-- WAS NOT ALTERED IN 1948
OR THEREAFTER.  MOREOVER, THE MACINTOSH DISSENT DOES NOT ITSELF SUGGEST
THAT CONSCIENTIOUS OBJECTION TO A PARTICULAR WAR IS OR HAS EVER BEEN A
BASIS FOR RELIEF FROM MILITARY SERVICE-- HIS CONTENTION, AND THAT OF
THE DISSENT, WAS THAT CONSCIENTIOUS UNWILLINGNESS TO BEAR ARMS IS NOT A
DISQUALIFYING FACTOR, UNDER THE LANGUAGE OF THE APPLICABLE LOYALTY
OATH, IN A NATURALIZATION PROCEEDING.  (THE ARGUMENT OF THE DISSENT WAS
LATER ADOPTED BY THE COURT IN GIROUARD V. UNITED STATES, 328 U.S. 61,
64 (1946).) 

/10/  SEE INFRA, AT 454-460.  SEE GENERALLY REPORT OF THE NATIONAL
ADVISORY COMMISSION ON SELECTIVE SERVICE, IN PURSUIT OF EQUITY:  WHO
SERVES WHEN NOT ALL SERVE?  50-51 (1967). 

/11/  PERHAPS MORE SIGNIFICANT IS THE FACT THAT EVEN LOWER COURTS
THAT HAVE GRANTED RELIEF TO CLAIMANTS WHO OBJECT TO PARTICULAR WARS,
HAVE DONE SO ON CONSTITUTIONAL, NOT STATUTORY, GROUNDS, AND HAVE FOUND
SEC. 6(J) DEFECTIVE BECAUSE IT DOES NOT ADMIT OF SUCH RELIEF.  SEE,
E.G., UNITED STATES V. MCFADDEN, 309 F.SUPP.  502 (ND CAL. 1970), APP.
DOCKETED, NO. 422, O.T. 1970; UNITED STATES V. SISSON, 297 F.SUPP.  902
(MASS. 1969), APPEAL DISMISSED FOR WANT OF JURISDICTION, 399 U.S. 267
(1970).  SINCE WE CONCLUDE THAT SEC. 6(J), INTERPRETED IN THE OBVIOUS
WAY, SUFFERS NO CONSTITUTIONAL INFIRMITY, THERE IS NO TEMPTATION TO
EXPAND ITS INTENDED SCOPE BY CONSTRUCTIONAL FIAT IN ORDER TO "SAVE"
IT. 

/12/  AFTER NOTING THAT SICURELLA'S FAITH INVOLVED WILLINGNESS TO
ENGAGE IN THEOCRATIC CONFLICT, THOUGH "WITHOUT CARNAL WEAPONS," THE
COURT STATED:  "THE TEST IS NOT WHETHER THE REGISTRANT IS OPPOSED TO
ALL WAR, BUT WHETHER HE IS OPPOSED . . . TO PARTICIPATION IN WAR."  348
U.S.,AT 390.  THE PLAIN PURPORT OF THIS STATEMENT IS THAT OPPOSITION TO
THEOCRACTIC WAR IS NOT EXACTED, SINCE CONGRESS QUITE REASONABLY
CONSIDERED PARTICIPATION IN "REAL SHOOTING WARS" TO BE THE ONLY SORT OF
PARTICIPATION AT STAKE.  SEE ALSO TAFFS V. UNITED STATES, 208 F.2D 329,
331 (CA8 1953), CERT. DENIED, 347 U.S. 928 (1954). 

/13/  SEE N. 4, SUPRA. 

/14/  PETITIONERS ALSO ASSERT THAT THE FIFTH AMENDMENT'S DUE PROCESS
CLAUSE IS VIOLATED, BECAUSE THE DISTINCTION EMBODIED IN SEC. 6(J)--
BETWEEN OBJECTORS TO ALL WAR AND OBJECTORS TO PARTICULAR WARS-- IS
ARBITRARY AND CAPRICIOUS AND WORKS AN INVIDIOUS DISCRIMINATION IN
CONTRAVENTION OF THE "EQUAL PROTECTION" PRINCIPLES ENCOMPASSED BY THE
FIFTH AMENDMENT.  CF. BOLLING V. SHARPE, 347 U.S. 497, 499 (1954). 
THIS IS NOT AN INDEPENDENT ARGUMENT IN THE CONTEXT OF THESE CASES.  CF.
WALZ V. TAX COMMISSION, 397 U.S. 664, 696 (1970) (OPINION OF HARLAN,
J.).  WE HOLD THAT THE SECTION SURVIVES THE ESTABLISHMENT CLAUSE
BECAUSE THERE ARE NEUTRAL, SECULAR REASONS TO JUSTIFY THE LINE THAT
CONGRESS HAS DRAWN, AND IT FOLLOWS AS A MORE GENERAL MATTER THAT THE
LINE IS NEITHER ARBITRARY NOR INVIDIOUS. 

/15/  SEE N. 8, SUPRA. 

/16/  SINCE WE HOLD THAT THE "PARTICIPATION IN WAR IN ANY FORM"
CLAUSE OF SEC. 6(J) DOES NOT VIOLATE THE FIRST AMENDMENT, THERE IS
LITTLE POINT IN DEALING WITH THE PROBLEMS THAT WOULD BE INVOLVED IN
DECIDING WHETHER INVALIDITY OF THE RESTRICTIVE CLAUSE SHOULD LEAD TO
JUDICIAL NULLIFICATION OF THE EXEMP?ION IN TOTO OR JUDICIAL EXPANSION
TO CURE "UNDERINCLUSIVENESS." 

/17/  THE EXEMPTION PROVISION OF THE DRAFT ACT OF 1917, SEC. 4, 40
STAT. 78, WAS UPHELD IN THE SELECTIVE DRAFT LAW CASES, 245 U.S. 366,
389-390 (1918), AT AN EARLY STAGE IN THE DEVELOPMENT OF FIRST AMENDMENT
DOCTRINE, AGAINST A CONSTITUTIONAL ATTACK APPARENTLY FOUNDED ON BOTH
THE ESTABLSIHMENT AND FREE EXERCISE CLAUSES.  A SINGLE SENTENCE WAS
DEVOTED TO THE COMPLAINANTS' FIRST AMENDMENT ARGUMENT, "BECAUSE WE
THINK ITS UNSOUNDESS IS TOO APPARENT TO REQUIRE US TO DO MORE,"  ID.,
AT 390. 

/18/  SEE SUPRA, AT 445-446. 

/19/  SEE N. 23, INFRA. 

/20/  THE REPORT OF THE NATIONAL ADVISORY COMMISSION ON SELECTIVE
SERVICE (1967) IS APTLY ENTITLED IN PURSUIT OF EQUITY:  WHO SERVES WHEN
NOT ALL SERVE? 

/21/  MATTERS RELEVANT TO SUCH AN OBJECTION, AS THE PAPERS IN THESE
CASES SHOW, ARE WHETHER THE PURPOSES OF THE WAR ARE THOUGHT ULTIMATELY
DEFENSIVE AND PACIFIC, OR OTHERWISE; WHETHER THE CONFLICT IS LEGAL, OR
ITS PROSECUTION DECIDED UPON BY LEGAL MEANS; WHETHER THE IMPLEMENTS OF
WAR ARE USED HUMANELY, OR WHETHER CERTAIN WEAPONS SHOULD BE USED AT
ALL.  A WAR MAY BE THOUGHT "JUST" OR NOT DEPENDING ON ONE'S ASSESSMENT
OF THESE FACTORS AND MANY MORE:  THE CHARACTER OF THE FOE, OR OF
ALLIES; THE PLACE THE WAR IS FOUGHT; THE LIKELIHOOD THAT A MILITARY
CLASH WILL ISSUE IN BENEFITS, OF VARIOUS KINDS, ENOUGH TO OVERRIDE THE
INEVITABLE COSTS OF THE CONFLICT.  AND SO ON. 

/22/ SEE N. 3, SUPRA. 

/23/  WE ARE NOT FACED WITH THE QUESTION WHETHER THE FREE EXERCISE
CLAUSE ITSELF WOULD REQUIRE EXEMPTION OF ANY CLASS OTHER THAN OBJECTORS
TO PARTICULAR WARS.  A FREE EXERCISE CLAIM ON BEHALF OF SUCH OBJECTORS
COLLIDES WITH THE DISTINCT GOVERNMENTAL INTERESTS ALREADY DISCUSSED,
AND, AT ANY RATE, NO OTHER CLAIM IS PRESENTED.  WE NOTE THAT THE COURT
HAS PREVIOUSLY SUGGESTED THAT RELIEF FOR CONSCIENTIOUS OBJECTORS IS NOT
MANDATED BY THE CONSTITUTION.  SEE HAMILTON V. REGENTS, 293 U.S. 246,
264 (1934); UNITED STATES V. MACINTOSH 283 U.S.,AT 623-624; CF. IN RE
SUMMERS, 325 U.S. 561, 572-573 (1945). 

MR. JUSTICE BLACK CONCURS IN THE COURT'S JUDGMENT AND IN PART I OF
THE OPINION OF THE COURT. 

MR. JUSTICE DOUGLAS, DISSENTING IN NO. 85.  /1/ 

GILLETTE'S OBJECTION IS TO COMBAT SERVICE IN THE VIETNAM WAR, NOT TO
WARS IN GENERAL, AND THE BASIS OF HIS OBJECTION IS HIS CONSCIENCE.  HIS
OBJECTION DOES NOT PUT HIM INTO THE STATUTORY EXEMPTION WHICH EXTENDS
TO ONE "WHO, BY REASON OF RELIGIOUS TRAINING AND BELIEF, IS
CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN ANY FORM."  /1A/ 

HE STATED HIS VIEWS AS FOLLOWS: 

     "I OBJECT TO ANY ASSIGNMENT IN THE UNITED STATES ARMED FORCES

  WHILE THIS UNNECESSARY AND UNJUST WAR IS BEING WAGED, ON THE

  GROUNDS OF RELIGIOUS BELIEF SPECIFICALLY 'HUMANISM.'  THIS

  ESSENTIALLY MEANS RESPECT AND LOVE FOR MAN, FAITH IN HIS INHERENT

  GOODNESS AND PERFECTABILITY, AND CONFIDENCE IN HIS CAPABILITY TO

IMPROVE SOME OF THE PAINS OF THE HUMAN CONDITION." 

THIS POSITION IS SUBSTANTIALLY THE SAME AS THAT OF SISSON IN UNITED
STATES V. SISSON, 297 F.SUPP.  902, APPEAL DISMISSED, 399 U.S. 267,
WHERE THE DISTRICT COURT SUMMARIZED THE DRAFTEE'S POSITION AS FOLLOWS: 

"SISSON'S TABLE OF ULTIMATE VALUES IS MORAL AND ETHICAL.  IT
REFLECTS QUITE AS REAL, PERVASIVE, DURABLE, AND COMMENDABLE A
MARSHALLING OF PRIORITIES AS A FORMAL RELIGION.  IT IS JUST AS MUCH A
RESIDUE OF CULTURE, EARLY TRAINING, AND BELIEFS SHARED BY COMPANIONS
AND FAMILY.  WHAT ANOTHER DERIVES FROM THE DISCIPLINE OF A CHURCH,
SISSON DERIVES FROM THE DISCIPLINE OF CONSCIENCE."  297 F.SUPP.,AT
905. 

THERE IS NO DOUBT THAT THE VIEWS OF GILLETTE ARE SINCERE, GENUINE,
AND PROFOUND.  THE DISTRICT COURT IN THE PRESENT CASE FACED SQUARELY
THE ISSUE PRESENTED IN SISSON AND BEING UNABLE TO DISTINGUISH THE CASE
ON THE FACTS REFUSED TO FOLLOW SISSON. 

THE QUESTION, CAN A CONSCIENTIOUS OBJECTOR, WHETHER HIS OBJECTION BE
ROOTED IN "RELIGION" OR IN MORAL VALUES, BE REQUIRED TO KILL?  HAS
NEVER BEEN ANSWERED BY THE COURT.  /2/  HAMILTON V. REGENTS, 293 U.S.
245, DID NO MORE THAN HOLD THAT THE FOURTEENTH AMENDMENT DID NOT
REQUIRE A STATE TO MAKE ITS UNIVERSITY AVAILABLE TO ONE WHO WOULD NOT
TAKE MILITARY TRAINING.  UNITED STATES V. MACINTOSH, 283 U.S. 605,
DENIED NATURALIZATION TO A PERSON WHO "WOULD NOT PROMISE IN ADVANCE TO
BEAR ARMS IN DEFENSE OF THE UNITED STATES UNLESS HE BELIEVED THE WAR TO
BE MORALLY JUSTIFIED."  ID., AT 613.  THE QUESTION OF COMPELLING A MAN
TO KILL AGAINST HIS CONSCIENCE WAS NOT SQUARELY INVOLVED.  MOST OF THE
TALK IN THE MAJORITY OPINION CONCERNED "SERVING IN THE ARMED FORCES OF
THE NATION IN TIME OF WAR."  ID., AT 623.  SUCH SERVICE CAN, OF COURSE,
TAKE PLACE IN NONCOMBATANT ROLES.  THE RULING WAS THAT SUCH SERVICE IS
"DEPENDENT UPON THE WILL OF CONGRESS AND NOT UPON THE SCRUPLES OF THE
INDIVIDUAL, EXCEPT AS CONGRESS PROVIDES."  IBID.  THE DICTA OF THE
COURT IN THE MACINTOSH CASE SQUINT TOWARDS THE DENIAL OF GILLETTE'S
CLAIM, THOUGH AS I HAVE SAID, THE ISSUE WAS NOT SQUARELY PRESENTED. 

YET IF DICTA ARE TO BE OUR GUIDE, MY CHOICE IS THE DICTA OF CHIEF
JUSTICE HUGHES WHO, DISSENTING IN MACINTOSH, SPOKE AS WELL FOR JUSTICE
HOLMES, BRANDEIS, AND STONE: 

     "NOR IS THERE GROUND, IN MY OPINION, FOR THE EXCLUSION OF

  PROFESSOR MACINTOSH BECAUSE HIS CONSCIENTIOUS SCRUPLES HAVE

  PARTICULAR REFERENCE TO WARS BELIEVED TO BE UNJUST.  THERE IS

  NOTHING NEW IN SUCH AN ATTITUDE.  AMONG THE MOST EMINENT

  STATESMEN HERE AND ABROAD HAVE BEEN THOSE WHO CONDEMNED THE

  ACTION OF THEIR COUNTRY IN ENTERING INTO WARS THEY THOUGHT TO BE

  UNJUSTIFIED.  AGREEMENTS FOR THE RENUNCIATION OF WAR PRESUPPOSE A

  PREPONDERANT PUBLIC SENTIMENT AGAINST WARS OF AGGRESION.  IF,

WHILE RECOGNIZING THE POWER OF CONGRESS, THE MERE HOLDING OF

  RELIGIOUS OR CONSCIENTIOUS SCRUPLES AGAINST ALL WARS SHOULD NOT

  DISQUALIFY A CITIZEN FROM HOLDING OFFICE IN THIS COUNTRY, OR AN

  APPLICANT OTHERWISE QUALIFIED FROM BEING ADMITTING TO

  CITIZENSHIP, THERE WOULD SEEM TO BE NO REASON WHY A RESERVATION

  OF RELIGIOUS OR CONSCIENTIOUS OBJECTION TO PARTICIPATION IN WARS

  BELIEVED TO BE UNJUST SHOULD CONSTITUTE SUCH A

  DISQUALIFICATION."  ID., AT 635. 

I THINK THE HUGHES VIEW IS THE CONSTITUTIONAL VIEW.  IT IS TRUE THAT
THE FIRST AMENDMENT SPEAKS OF THE FREE EXERCISE OF RELIGION, NOT OF THE
FREE EXERCISE OF CONSCIENCE OR BELIEF.  YET CONSCIENCE AND BELIEF ARE
THE MAIN INGREDIENTS OF FIRST AMENDMENT RIGHTS.  THEY ARE THE BEDROCK
OF FREE SPEECH AS WELL AS RELIGION.  THE IMPLIED FIRST AMENDMENT RIGHT
OF "CONSCIENCE" IS CERTAINLY AS HIGH AS THE "RIGHT OF ASSOCIATION"
WHICH WE RECOGNIZED IN SHELTON V. TUCKER, 364 U.S. 479, AND NAACP V.
ALABAMA, 357 U.S. 449.  SOME INDEED HAVE THOUGHT IT HIGHER.  /3/ 

CONSCIENCE IS OFTEN THE ECHO OF RELIGIOUS FAITH.  BUT, AS THIS CASE
ILLUSTRATES, IT MAY ALSO BE THE PRODUCT OF TRAVAIL, MEDITATION, OR
SUDDEN REVELATION RELATED TO A MORAL COMPREHNSION OF THE DIMENSIONS OF
A PROBLEM, NOT TO A RELIGION IN THE ORDINARY SENSE. 

TOLSTOY /4/  WROTE OF A MAN, ONE VAN DER VEER, "WHO, AS HE HIMSELF
SAYS, IS NOT A CHRISTIAN, AND WHO REFUSES MILITARY SERVICE, NOT FROM
RELIGIOUS MOTIVES, BUT FROM MOTIVES OF THE SIMPLEST KIND, MOTIVES
INTELLIGIBLE AND COMMON TO ALL MEN, OF WHATEVER RELIGION OR NATION,
WHETHER CATHOLIC, MOHAMMEDAN, BUDDHIST, CONFUCIAN, WHETHER SPANIARDS OR
JAPANESE. 

     "VAN DER VEER REFUSES MILITARY SERVICE, NOT BECAUSE HE FOLLOWS

  THE COMMANDMENT.  'THOU SHALT DO NO MURDER,' NOT BECAUSE HE IS A

  CHRISTIAN, BUT BECAUSE HE HOLDS MURDER TO BE OPPOSED TO HUMAN

  NATURE."  TOLSTOY /5/  GOES ON TO SAY: 

      "VAN DER VEER SAYS HE IS NOT A CHRISTIAN.  BUT THE MOTIVES OF

  HIS REFUSAL AND ACTION ARE CHRISTIAN.  HE REFUSES BECAUSE HE DOES

  NOT WISH TO KILL A BROTHER MAN; HE DOES NOT OBEY, BECAUSE THE

  COMMANDS OF HIS CONSCIENCE ARE MORE BINDING UPON HIM THAN THE

  COMMANDS OF MEN . . . . THEREBY HE SHOWS THAT CHRISTIANITY IS NOT

  A SECT OR CREED WHICH SOME MAY PROFESS AND OTHERS REJECT; BUT

  THAT IT IS NAUGHT ELSE THAN A LIFE'S FOLLOWING OF THAT LIGHT OF

  REASON WHICH ILLUMINES ALL MEN . . . 

     "THOSE MEN WHO NOW BEHAVE RIGHTLY AND REASONABLY DO SO, NOT

  BECAUSE THEY FOLLOW PRESCRIPTIONS OF CHRIST, BUT BECAUSE THAT

  LINE OF ACTION WHICH WAS POINTED OUT EIGHTEEN HUNDRED YEARS AGO

HAS NOW BECOME IDENTIFIED WITH HUMAN CONSCIENCE." 

THE "SPHERE OF INTELLECT AND SPIRIT," AS WE DESCRIBED THE DOMAIN OF
THE FIRST AMENDMENT IN WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE,
319 U.S. 624, 642, WAS RECOGNIZED IN UNITED STATES V. SEEGER, 380 U.S.
163, WHERE WE GAVE A BROAD CONSTRUCTION TO THE STATUTORY EXEMPTION OF
THOSE WHO BY THEIR RELIGIOUS TRAINING OR BELIEF ARE CONSCIENTIOUSLY
OPPOSED TO PARTICIPATION IN WAR IN ANY FORM.  WE SAID:  "A SINCERE AND
MEANINGFUL BELIEF WHICH OCCUPIES IN THE LIFE OF ITS POSSESSOR A PLACE
PARALLEL TO THAT FILLED BY THE GOD OF THOSE ADMITTEDLY QUALIFYING FOR
THE EXEMPTION COMES WITHIN THE STATUTORY DEFINITION."  ID., AT 176. 
/6/ 

SEEGER DOES NOT ANSWER THE PRESENT QUESTION AS GILLETTE IS NOT
"OPPOSED TO PARTICIPATION IN WAY IN ANY FORM." 

BUT THE CONSTITUTIONAL INFIRMITY IN THE PRESENT ACT SEEMS OBVIOUS
ONCE "CONSCIENCE" IS THE GUIDE.  AS CHIEF JUSTICE HUGHES SAID IN THE
MACINTOSH CASE: 

"BUT, IN THE FORUM OF CONSCIENCE, DUTY TO A MORAL POWER HIGHER THAN
THE STATE HAS ALWAYS BEEN MAINTAINED.  THE RESERVATION OF THAT SUPREME
OBLIGATION, AS A MATTER OF PRINCIPLE, WOULD UNQUESTIONABLY BE MADE BY
MANY OF OUR CONSCIENTIOUS AND LAW-ABIDING CITIZENS.  THE ESSENCE OF
RELIGION IS BELIEF IN A RELATION TO GOD INVOLVING DUTIES SUPERIOR TO
THOSE ARISING FROM ANY HUMAN RELATION."  283 U.S.,AT 633-634. 

THE LAW AS WRITTEN IS A SPECIES OF THOSE WHICH SHOW AN INVIDIOUS
DISCRIMINATION IN FAVOR OF RELIGIOUS PERSONS AND AGAINST OTHERS WITH
LIKE SCRUPLES.  MR. JUSTICE BLACK ONCE SAID:  "THE FIRST AMENDMENT HAS
LOST MUCH IF THE RELIGIOUS FOLLOWER AND THE ATHEIST /7/  ARE NO LONGER
TO BE JUDICIALLY REGARDED AS ENTITLED TO EQUAL JUSTICE UNDER LAW." 
ZORACH V. CLAUSON, 343 U.S. 306, 320 (DISSENTING).  WE SAID AS MUCH IN
OUR RECENT DECISION IN EPPERSON V. ARKANSAS, 393 U.S. 97, WHERE WE
STRUCK DOWN AS UNCONSTITUTIONAL A STATE LAW PROHIBITING THE TEACHING OF
THE DOCTRINE OF EVOLUTION IN THE PUBLIC SCHOOLS: 

     "GOVERNMENT IN OUR DEMOCRACY, STATE AND NATIONAL, MUST BE

  NEUTRAL IN MATTERS OF RELIGIOUS THEORY, DOCTRINE, AND PRACTICE. 

  IT MAY NOT BE HOSTILE TO ANY RELIGION OR TO THE ADVOCACY OF

  NO-RELIGION; AND IT MAY NOT AID, FOSTER, OR PROMOTE ONE RELIGION

  OR RELIGIOUS THEORY AGAINST ANOTHER OR EVEN AGAINST THE MILITANT

  OPPOSITE.  THE FIRST AMENDMENT MANDATES GOVERNMENTAL NEUTRALITY

  BETWEEN RELIGION AND RELIGION, AND BETWEEN RELIGION AND

  NONRELIGION."  ID., AT 103-104. 

WHILE THERE IS NO EQUAL PROTECTION CLAUSE IN THE FIFTH AMENDMENT,
OUR DECISIONS ARE CLEAR THAT INVIDIOUS CLASSIFICATIONS VIOLATE DUE
PROCESS.  BOLLING V. SHARPE, 347 U.S. 497, 500, HELD THAT SEGREGATION
BY RACE IN THE PUBLIC SCHOOLS WAS AN INVIDIOUS DISCRIMINATION, AND
SCHNEIDER V. RUSK, 377 1.S. 163, 168-169, REACHED THE SAME RESULT BASED
ON PENALTIES IMPOSED ON NATURALIZED, NOT NATIVE-BORN, CITIZENS.  A
CLASSIFICATION OF "CONSCIENCE" BASED ON A "RELIGION" AND A "CONSCIENCE"
BASED ON MORE GENERALIZED, PHILOSOPHICAL GROUNDS IS EQUALLY INVIDIOUS
BY REASON OF OUR FIRST AMENDMENT STANDARDS. 

I HAD ASSUMED THATTHE WELFARE OF THE SINGLE HUMAN SOUL WAS THE
ULTIMATE TEST OF THE VITALITY OF THE FIRST AMENDMENT. 

THIS IS AN APPROPRIATE OCCASION TO GIVE CONTENT TO OUR DICTUM IN
BOARD OF EDUCATION V. BARNETTE, SUPRA, AT 642: 

"(FREEDOM TO DIFFER IS NOT LIMITED TO THINGS THAT DO NOT MATTER MUCH
. . . . THE TEST OF ITS SUBSTANCE IS THE RIGHT TO DIFFER AS TO THINGS
THAT TOUCH THE HEART OF THE EXISTING ORDER." 

I WOULD REVERSE THIS JUDGMENT. 

/1/  (FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN NO. 325,
NEGRE V. LARSEN, SEE POST, P. 470.) 

/1A/  SECTION 6(J), MILITARY SELECTIVE SERVICE ACT OF 1967, 50
U.S.C. APP. 456(J) (1964 ED., SUPP. V). 

/2/  SEE T. POWELL, CONSCIENCE AND THE CONSTITUTION, IN DEMOCRACY
AND NATIONAL UNITY (W. HUTCHISON ED. 1941). 

IT IS PROBABLY A UNIVERSAL TRUTH THAT "THE ONE THING WHICH
AUTHORITY, WHETHER POLITICAL, SOCIAL, RELIGIOUS OR ECONOMIC, TENDS
INSTINCTIVELY TO FEAR IS THE INSISTENCE OF CONSCIENCE."  MEHTA, THE
CONSCIENCE OF A NATION OR STUDIES IN GANDHISM P. II (CALCUTTA, 1933). 

/3/  SEE M. KONVITZ, RELIGIOUS LIBERTY AND CONSCIENCE 106 (1968);
REDLICH & FEINBERG, INDIVIDUAL CONSCIENCE AND THE SELECTIVE SERVICE
OBJECTOR:  THE IRGHT NOT TO KILL, 44 .N.Y.U.L.REV.  875, 891 (1969): 

"FREE EXPRESSION AND THE RIGHT OF PERSONAL CONSCIENTIOUS BELIEF ARE
CLOSELY ENTERTWINED.  AT THE CORE OF THE FIRST AMENDMENT'S PROTECTION
OF INDIVIDUAL EXPRESSION, IS THE RECOGNITION THAT SUCH EXPRESSION
REPRESENTS THE ORAL OR WRITTEN MANIFESTATION OF CONSCIENCE.  THE
PERFORMANCE OF CERTAIN ACTS, UNDER CERTAIN CIRCUMSTANCES, INVOLVES SUCH
A CRISIS OF CONSCIENCE AS TO INVOKE THE PROTECTIONWHICH THE FIRST
AMENDMENT PROVIDES FOR SIMILAR MANIFESTATIONS OF CONSCIENCE WHEN
EXPRESSED IN VERBAL OR WRITTEN EXPRESSIONS OF THOUGHT.  THE MOST
AWESOME ACT WHICH ANY SOCIETY CAN DEMAND OF A CITIZEN'S CONSCIENCE IS
THE TAKING OF A HUMAN LIFE." 

/4/  L. TOLSOY, WRITINGS ON CIVIL DISOBEDIENCE AND NON-VIOLENCE 12
(1967). 

/5/  ID., AT 15-16.  AND SEE CLARK, GUIDELINES FOR THE FREE EXERCISE
CLAUSE, 83 HARV.L.REV.  327, 337 (1969): 

"THE ARGUMENT IS NOT MERELY THAT AVOIDING COMPULSION OF A MAN'S
CONSCIENCE PRODUCES THE GREATEST GOOD FOR THE GREATEST NUMBER, BUT THAT
SUCH COMPULSION IS ITSELF UNFAIR TO THE INDIVIDUAL CONCERNED.  THE
MORAL CONDEMNATION IMPLICIT IN THE THREAT OF CRIMINAL SANCTIONS IS
LIKELY TO BE VERY PAINFUL TO ONE MOTIVATED BY BELIEF.  FURTHERMORE, THE
COST TO A PRINCIPLED INDIVIDUAL OF FAILING TO DO HIS MORAL DUTY IS
GENERALLY SEVERE, IN TERMS OF SUPERNATURAL SANCTION OR THE LOSS OF
MORAL SELF-RESPECT." 

/6/  IN WELSH V. UNITED STATES, 398 U.S. 333, FOUR JUSTICES
ELABORATED ON SEEGER, STATING: 

"THE COURT (IN SEEGER) MADE IT CLEAR THAT THESE SINCERE AND
MEANINGFUL BELIEFS THAT PROMPT THE REGISTRANT'S OBJECTION TO ALL WARS
NEED NOT BE CONFINED IN EITHER SOURCE OR CONTENT TO TRADITIONAL OR
PAROCHIAL CONCEPTS OF RELIGION . . . . WHAT IS NECESSARY UNDER SEEGER
FOR A REGISTRANT'S CONSCIENTIOUS OBJECTION TO ALL WAR TO BE 'RELIGIOUS'
WITHIN THE MEANING OF SEC. 6(J) IS THAT THIS OPPOSITION TO WAR STEM
FROM THE REGISTRANT'S MORAL, ETHICAL, OR RELIGIOUS BELIEFS ABOUT WHAT
IS RIGHT AND WRONG AND THAT THESE BELIEFS BE HELD WITH THE STRENGTH OF
TRADITIONAL RELIGIOUS CONVICTIONS."  ID. AT 339-340. 

/7/  ARTICLE VI OF THE CONSTITUTION PROVIDES THAT "NO RELIGIOUS TEST
SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY OFFICE OR PUBLIC TRUST
UNDER THE UNITED STATES."  TORCASO V. WATKINS, 367 U.S. 488, UPHELD THE
RIGHT OF A NONBELIEVER TO HOLD PUBLIC OFFICE. 

MR. JUSTICE DOUGLAS, DISSENTING IN NO. 325, NEGRE V. LARSEN. 

I APPROACH THE FACTS OF THIS CASE WITH SOME DIFFIDENCE, AS THEY
INVOLVE DOCTRINES OF THE CATHOLIC CHURCH IN WHICH I WAS NOT RAISED. 
BUT WE HAVE ON ONE OF PETITIONER'S BRIEFS AN AUTHORITATIVE LAY CATHOLIC
SCHOLAR, DR. JOHN T. NOONAN, JR., AND FROM THAT BRIEF I DEDUCE THE
FOLLOWING: 

UNDER THE DOCTRINES OF THE CATHOLIC CHURCH A PERSON HAS A MORAL DUTY
TO TAKE PART IN WARS DECLARED BY HIS GOVERNMENT SO LONG AS THEY COMPLY
WITH THE TESTS OF HIS CHURCH FOR JUST WARS.  /1/  CONVERSELY, A
CATHOLIC HAS A MORAL DUTY NOT TO PARTICIPATE IN UNJUST WARS.  /2/ 

THE FIFTH COMMANDMENT, "THOU SHALL NOT KILL," PROVIDES A BASIS FOR
THE DISTINCTION BETWEEN JUST AND UNJUST WARS.  IN THE 16TH CENTURY
FRANCISCO VICTORIA, DOMINICAN MASTER OF THE UNIVERSITY OF SALAMANCA AND
PIONEER IN INTERNATIONAL LAW, ELABORATED ON THE DISTINCTION.  "IF A
SUBJECT IS CONVINCED OF THE INJUSTICE OF A WAR, HE OUGHT NOT TO SERVE
IN IT, EVEN ON THE COMMAND OF HIS PRINCE.  THIS IS CLEAR, FOR NO ONE
CAN AUTHORIZE THE KILLING OF AN INNOCENT PERSON."  HE REALIZED NOT ALL
MEN HAD THE INFORMATION OF THE PRINCE AND HIS COUNSELLORS ON THE CAUSES
OF A WAR, BUT WHERE "THE PROOFS AND TOKENS OF THE INJUSTICE OF THE WAR
MAY BE SUCH THAT IGNORANCE WOULD BE NO EXCUSE EVEN TO THE SUBJECTS" WHO
ARE NOT NORMALLY INFORMED, THAT IGNORANCE WILL NOT BE AN EXCUSE IF THEY
PARTICIPATE.  /3/  WELL OVER 400 YEARS LATER, TODAY, THE BALTIMORE
CATECHISM MAKES AN EXCEPTION TO THE FIFTH COMMANDMENT FOR A "SOLDIER
FIGHTING A JUST WAR."  /4/ 

NO ONE CAN TELL A CATHOLIC THAT THIS OR THAT WAR IS EITHER JUST OR
UNJUST.  THIS IS A PERSONAL DECISION THAT AN INDIVIDUAL MUST MAKE ON
THE BASIS OF HIS OWN CONSCIENCE AFTER STUDYING THE FACTS.  /5/ 

LIKE THE DISTINCTION BETWEEN JUST AND UNJUST WARS, THE DUTY TO OBEY
CONSCIENCE IS NOT A NEW DOCTRINE IN THE CATHOLIC CHURCH.  WHEN TOLD TO
STOP PREACHING BY THE SANHEDRIN, TO WHICH THEY WERE SUBORDINATE BY LAW,
"PETER AND THE APOSTLES ANSWERED AND SAID, 'WE MUST OBEY GOD RATHER
THAN MEN.'"  /6/  THAT DUTY HAS NOT CHANGED.  POPE PAUL VI HAS
EXPRESSED IT AS FOLLOWS:  "ON HIS PART, MAN PERCEIVES AND ACKNOWLEDGES
THE IMPERATIVES OF THE DIVINE LAW THROUGH THE MEDIATION OF CONSCIENCE. 
IN ALL HIS ACITIVITY A MAN IS BOUND TO FOLLOW HIS CONSCIENCE, IN ORDER
THAT HE MAY COME TO GOD, THE END AND PURPOSE OF LIFE."  /7/ 

WHILE THE FACT THAT THE ULTIMATE DETERMINATION OF WHETHER A WAR IS
UNJUST RESTS ON INDIVIDUAL CONSCIENCE, THE CHURCH HAS PROVIDED GUIDES. 
FRANCISCO VICTORIA REFERRED TO "KILLING OF AN INNOCENT PERSON."  WORLD
WAR II HAD ITS IMPACT ON THE DOCTRINE.  WRITING SHORTLY AFTER THE WAR
CARDINAL OTTAVIANI STATED:  "(MODERN WARS CAN NEVER FULFIL THOSE
CONDITIONS WHICH (AS WE STATED EARLIER ON IN THIS ESSAY) GOVERN--
THEORETICALLY-- A JUST AND LAWFUL WAR.  MOREOVER, NO CONCEIVABLE CAUSE
COULD EVER BE SUFFICIENT JUSTIFICATION FOR THE EVILS, THE SLAUGHTER,
THE DESTRUCTION, THE MORAL AND RELIGIOUS UPHEAVALS WHICH WAR TODAY
ENTAILS.  IN PRACTICE, THEN, A DECLARATION OF WAR WILL NEVER BE
JUSTIFIABLE."  /8/  THE FULL IMPACT OF THE HORRORS OF MODERN WAR WERE
EMPHASIZED IN THE PASTORAL CONSTITUTION ANNOUNCED BY VATICAN II: 

     "THE DEVELOPMENT OF ARMAMENTS BY MODERN SCIENCE HAS

  IMMEASURABLY MAGNIFIED THE HORRORS AND WICKEDNESS OF WAR. 

  WARFARE CONDUCTED WITH THESE WEAPONS CAN INFLICT IMMENSE AND

  INDISCRIMINATE HAVOC WHICH GOES FAR BEYOND THE BOUNDS OF

  LEGITIMATE DEFENSE.  INDEED, IF THE KIND OF WEAPONS NOW STOCKED

  IN THE ARSENALS OF THE GREAT POWERS WERE TO BE EMPLOYED TO THE

  FULLEST, THE RESULT WOULD BE THE ALMOST COMPLETE RECIPROCAL

  SLAUGHTER OF ONE SIDE BY THE OTHER, NOT TO SPEAK OF THE

  WIDESPREAD DEVASTATION THAT WOULD FOLLOW IN THE WORLD AND THE

  DEADLY AFTEREFFECTS RESULTING FROM THE USE OF SUCH ARMS. 

     "ALL THESE FACTORS FORCE US TO UNDERTAKE A COMPLETELY FRESH
REAPPRAISAL OF WAR . . ." 

     "(IT IS ONE THING TO WAGE A WAR OF SELF-DEFENSE; IT IS QUITE

  ANOTHER TO SEEK TO IMPOSE DOMINATION ON ANOTHER NATION . . . " 

THE PASTORAL CONSTITUTION ANNOUNCED THAT "(EVERY ACT OF WAR DIRECTED
TO THE INDISCRIMINATE DESTRUCTION OF WHOLE CITIES OR VAST AREAS WITH
THEIR INHABITANTS IS A CRIME AGAINST GOD AND MAN WHICH MERITS FIRM AND
UNEQUIVOCAL CONDEMNATION."  /9/ 

LOUIS NEGRE IS A DEVOUT CATHOLIC.  IN 1951 WHEN HE WAS FOUR, HIS
FAMILY IMMIGRATED TO THIS COUNTRY FROM FRANCE.  /10/  HE ATTENDED
CATHOLIC SCHOOLS IN BAKERSFIELD, CALIFORNIA, UNTIL GRADUATION FROM HIGH
SCHOOL.  THEN HE ATTENDED BAKERSFIELD JUNIOR COLLEGE FOR TWO YEARS. 
FOLLOWING THAT, HE WAS INDUCTED INTO THE ARMY. 

AT THE TIME OF HIS INDUCTION HE HAD HIS OWN CONVICTIONS ABOUT THE
VIETNAM WAR AND THE ARMY'S GOALS IN THE WAR.  HE WANTED, HOWEVER, TO BE
SURE OF HIS CONVICTIONS.  "I AGREED TO MYSELF THAT BEFORE MAKING ANY
DECISION OR TAKING ANY TYPE OF STAND ON THE ISSUE, I WOULD PERMIT
MYSELF TO SEE AND UNDERSTAND THE ARMY'S EXPLANATION OF ITS REASONS FOR
VIOLENCE IN VIETNAM.  FOR, WITHOUT GETTING AN INSIGHT ON THE SUBJECT,
IT WOULD BE UNFAIR FOR ME TO SAY ANYTHING, WITHOUT REALLY KNOWING THE
ANSWER."  /11/ 

ON COMPLETION OF HIS ADVANCED INFANTRY TRAINING, "I KNEW THAT IF I
WOULD PERMIT MYSELF TO GO TO VIETNAM I WOULD BE VIOLATING MY OWN
CONCEPTS OF NATURAL LAW AND WOULD BE GOING AGAINST ALL THAT I HAD BEEN
TAUGHT IN MY RELIGIOUS TRAINING."  NEGRE APPLIED FOR A DISCHARGE AS A
CONSCIENTIOUS OBJECTOR.  HIS APPLICATION WAS DENIED.  HE THEN REFUSED
TO COMPLY WITH AN ORDER TO PROCEED FOR SHIPMENT TO VIETNAM.  A GENERAL
COURT-MARTIAL FOLLOWED, BUT HE WAS ACQUITTED.  AFTER THAT HE FILED THIS
APPLICATION FOR DISCHARGE AS A CONSCIENTIOUS OBJECTOR. 

NEGRE IS OPPOSED UNDER HIS RELIGIOUS TRAINING AND BELIEFS TO
PARTICIPATION IN ANY FORM IN THE WAR IN VIETNAM.  HIS SINCERITY IS NOT
QUESTIONED.  HIS APPLICATIONFOR A DISCHARGE, HOWEVER, WAS DENIED
BECAUSE HIS RELIGIOUS TRAINING AND BELIEFS LED HIM TO OPPOSE ONLY A
PARTICULAR WAR /12/  WHICH ACCORDING TO HIS CONSCIENCE WAS UNJUST. 
FOR THE REASONS I HAVE STATED IN MY DISSENT IN THE GILLETTE CASE
DECIDED THIS DAY, I WOULD REVERSE THE JUDGMENT. 

/1/ THE THEOLOGICAL BASIS FOR THIS WAS EXPLAINED BY POPE JOHN XXIII
IN PART II OF PACEM IN TERRIS PARA. 46 (PAULIST PRESS 1963): "HUMAN
SOCIETY CAN BE NEITHER WELL-ORDERED NOR PROSPEROUS UNLESS IT HAS SOME
PEOPLE INVESTED WITH LEGITIMATE AUTHORITY TO PRESERVE ITS INSTITUTIONS
. . . . THESE HOWEVER DERIVE THEIR AUTHORITY FROM GOD, AS ST. PAUL
TEACHES IN THE WORDS, THERE EXISTS NO AUTHORITY EXCEPT FROM GOD.  THESE
WORDS OF ST. PAUL ARE EXPLAINED THUS BY ST. JOHN CHRYSOSTOM:  . . .
WHAT I SAY IS, THAT IT IS THE DIVINE WISDOM AND NOT MERE CHANCE, THAT
HAS ORDAINED THAT THERE SHOULD BE GOVERNMENT, THAT SOME SHOULD COMMAND
AND OTHERS OBEY."  PARA. 50 ADDS:  "WHEN, IN FACT, MEN OBEY THEIR
RULERS, IT IS NOT AT ALL AS MEN THAT THEY OBEY THEM, BUT THROUGH THEIR
OBEDIENCE IT IS GOD . . . SINCE HE HAS DECREED THAT MEN'S DEALINGS WITH
ONE ANOTHER SHOULD BE REGULATED BY AN ORDER WHICH HE HIMSELF HAS
ESTABLISHED." 

/2/  "SINCE THE RIGHT TO COMMAND IS REQUIRED BY THE MORAL ORDER AND
HAS ITS SOURCE IN GOD, IT FOLLOWS THAT, IF CIVIL AUTHORITIES LEGISLATE
FOR OR ALLOW ANYTHING THAT IS CONTRARY TO THAT ORDER AND THEREFORE
CONTRARY TO THE WILL OF GOD, NEITHER THE LAWS MADE NOR THE
AUTHORIZATIONS GRANTED CAN BE BINDING ON THE CONSCIENCES OF THE
CITIZENS, SINCE WE MUST OBEY GOD RATHER THAN MEN."  ID., AT PARA. 51. 

/3/  DE INDIS RELECTIO POSTERIOR, SIVE DE IURE BELLI HISPANORUM IN
BARBAROS, TRANSLATED IN CLASSICS OF INTERNATIONAL LAW 173-174 (E. NYS
ED. 1917). 

/4/  P. 205 (OFFICIAL REV. ED. 1949). 

/5/  POPE PAUL VI IN SEC. 16 OF THE PASTORAL CONSTITUTION ON THE
CHURCH IN THE MODERN WORLD STATES: 

"DEEP WITHIN HIS CONSCIENCE MAN DISCOVERS A LAW WHICH HE HAS NOT
LAID UPON HIMSELF BUT WHICH HE MUST OBEY.  ITS VOICE, EVER CALLING HIM
TO LOVE AND TO DO WHAT IS GOOD AND AVOID EVIL, TELLS HIM INWARDLY AT
THE RIGHT MOMENT TO DO THIS OR TO SHUN THAT.  FOR MAN HAS IN HIS HEART
A LAW INSCRIBED BY GOD.  HIS DIGNITY LIES IN OBSERVING THIS LAW, AND BY
IT HE WILL BE JUDGED." 

A. FAGOTHEY, RIGHT AND REASON:  ETHICS IN THEORY AND PRACTICE 38
(4TH ED. 1967) STATES:  "HENCE A CERTAIN CONSCIENCE MUST BE OBEYED, NOT
ONLY WHEN IT IS CORRECT, BUT EVEN WHEN IT IS INVINCIBLY ERRONEOUS
(UNREALIZED ERROR).  CONSCIENCE IS THE ONLY GUIDE A MAN HAS FOR THE
PERFORMANCE OF CONCRETE ACTIONS HERE AND NOW.  BUT AN INVINCIBLY
ERRONEOUS CONSCIENCE CANNOT BE DISTINGUISHED FROM A CORRECT
CONSCIENCE.  THEREFORE IF ONE WERE NOT OBLIGED TO FOLLOW A CERTAIN BUT
INVINCIBLY ERRONEOUS CONSCIENCE, WE SHOULD BE FORCED TO THE ABSURD
CONCLUSIONS THAT ONE WOULD NOT BE OBLIGED TO FOLLOW A CERTAIN AND
CORRECT CONSCIENCE."  ON THIS MATTER SEC. 16 OF THE PASTORAL
CONSTITUTION ADDS:  "YET IT OFTEN HAPPENS THAT CONSCIENCE GOES ASTRAY
THROUGH IGNORANCE WHICH IT IS UNABLE TO AVOID, BUT UNDER SUCH
CIRCUMSTANCES IT DOES NOT LOSE ITS DIGNITY.  THIS CANNOT BE SAID OF THE
MAN WHO TAKES LITTLE TROUBLE TO FIND OUT WHAT IS TRUE AND GOOD." 

/6/  ACTS 5:29 (STANDARD ED. 1900). 

/7/  DECLARATION ON REGIGIOUS FREEDOM I:3 IN DOCUMENTS OF VATICAN
COUNCIL II, P. 369 (NEWMAN PRESS 1966).  SEE ALSO "HUMAN LIFE IN OUR
DAY" ISSUED BY THE NATIONAL CONFERENCE OF CATHOLIC BISHOPS (NOV. 15,
1968):  "WHETHER ORNOT SUCH MODIFICATIONS IN OUR LAWS ARE IN FACT MADE,
WE CONTINUE TO HOPE THAT, IN THE ALL-IMPORTANT ISSUE OF WAR AND PEACE,
ALL MEN WILL FOLLOW THEIR CONSCIENCES.  WE CAN DO NO BETTER THAN TO
RECALL, AS DID THE VATICAN COUNCIL, 'THE PERMANENT BINDING FORCE OF
UNIVERSAL NATURAL LAW AND ITS ALL EMBRACING PRINCIPLES,' TO WHICH
'MAN'S CONSCIENCE ITSELF GIVES EVER MORE EMPHATIC VOICE.'" 

/8/  THE FUTURE OF OFFENSIVE WAR, 30 BLACKFRIARS 415, 419 (1949). 

/9/  PASTORAL CONSTITUTION PARAS. 79, 80. 

/10/  PETITIONER SUGGESTS THAT ONE OF THE REASONS HIS PARENTS LEFT
FRANCE WAS THEIR OPPOSITION TO FRANCE'S PARTICIPATION IN THE INDO-CHINA
WAR. 

/11/  SEE N. 5, SUPRA.  FAGOTHEY, SUPRA, N. 5, AT 37 STATES:  "WHAT
DEGREE OF CERTITUDE IS REQUIRED?  IT IS SUFFICIENT THAT THE CONSCIENCE
BE PRUDENTIALLY CERTAIN.  PRUDENTIAL CERTITUDE IS NOT ABSOLUTE BUT
RELATIVE.  IT EXCLUDES ALL PRUDENT FEAR THAT THE OPPOSITE MAY BE TRUE,
BUT IT DOES NOT RULE OUT IMPRUDENT FEARS BASED ON BARE POSSIBILITIES. 
THE REASONS ARE STRONG ENOUGH TO SATISFY A NORMALLY PRUDENT MAN IN AN
IMPORTANT MATTER, SO THAT HE FEELS SAFE IN PRACTICE THOUGH THERE IS A
THEORETICAL CHANCE OF HIS BEING WRONG.  HE HAS TAKEN EVERY REASONABLE
PRECAUTION, BUT CANNOT GUARANTEE AGAINST RARE CONTINGENCIES AND FREAKS
OF NATURE." 

/12/  "FOR THOES MIDDLE-AGED PEOPLE WHO FIND THEMSELVES BAFFLED BY
THE CURRENT WIDESPREAD RESISTANCE TO THE DRAFT, A STANFORD UNIVERSITY
STUDENT HAS PROVIDED A USEFUL PARALLEL. 

"ADDRESSING A HEARING OF THE SENATE ARMED SERVICE COMMITTEE . . . ,
PETER KNUTSON SAID THAT 'IF, DURING THE COURSE OF THE SECOND WORLD WAR,
AMERICA HAD ENTERED ON THE SIDE OF HITLER'S GERMANY, WOULD YOU HAVE
ALLOWED YOURSELF TO BE DRAFTED?  WOULD YOU HAVE BLINDLY SAID MY COUNTRY
RIGHT OR WRONG? 

"THAT IS ABOUT AS WELL AS THE ANTI-DRAFT CAUSE HAS EVER BEEN STATED
. . . 

"IT MAY SEEM FAR-FETCHED TO SUPPOSE THAT AMERICA EVER WOULD HAVE
FOUGHT ON THE SIDE OF HITLER, BUT THAT TOO IS BESIDE THE POINT.  IF
TODAY'S WORLD WAR II VETERAN WILL TRY TO IMAGINE WHAT HE MIGHT HAVE
DONE HAD HE BEEN DRAFTED UNDER THOSE CIRCUMSTANCES, HE WILL BE ABLE TO
UNDERSTAND SOME PART OF THE DILEMMA THAT THE VIETNAM WAR HAS IMPOSED ON
THIS GENERATION OF DRAFTEES.  IT HAS BEEN A REAL DILEMMA BREEDING
POWERFUL FRUSTRATIONS, AND ITS RESIDUES WILL LONG OUTLAST THE WAR."--
L. H.-- LEWISTON (IDA.)  TRIBUNE. 

CONRAD J. LYNN ARGUED THE CAUSE FOR PETITIONER IN NO. 85.  WITH HIM
ON THE BRIEF WERE LEON FRIEDMAN, MARVIN M. KARPATKIN, AND MELVIN L.
WULF.  RICHARD HARRINGTON ARGUED THE CAUSE FOR PETITIONER IN NO. 325. 
WITH HIM ON THE BRIEFS WERE LEIGH ATHEARN, STUART J. LAND, AND JOHN T.
NOONAN, JR. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES
AND FOR THE OTHER RESPONDENTS IN BOTH CASES.  WITH HIM ON THE BRIEFS
WERE ASSISTANT ATTORNEY GENERAL WILSON AND BEATRICE ROSENBERG. 

GEORGE T. ALTMAN, PRO SE, FILED A BRIEF AS AMICUS CURIAE IN BOTH
CASES.  LEO ROSEN FILED A BRIEF FOR THE AMERICAN ETHICAL UNION AS
AMICUS CURIAE IN NO. 85.  BRIEFS OF AMICI CURIAE IN NO. 325 WERE FILED
BY CHARLES H. TUTTLE AND THOMAS A. SHAW, JR., FOR THE NATIONAL COUNCIL
OF THE CHURCHES OF CHRIST IN THE U.S.A. ET AL.; BY PETER J. DONNICI FOR
THE EXECUTIVE BOARD OF THE NATIONAL FEDERATION OF PRIESTS' COUNCILS; BY
JOSEPH B. ROBISON, EPHRAIM MARGOLIN, STANLEY J. FRIEDMAN, SEYMOUR
FARBER, AND EDWIN J. LUKAS FOR THE AMERICAN JEWISH CONGRESS; BY MICHAEL
N. POLLET AND ELSBETH LEVY BOTHE FOR LOUIS P. FONT; AND BY THE AMERICAN
FRIENDS SERVICE COMMITTEE. 
..END :





















ASKEW V. HARGRAVE, 401 U.S. 476 


       ASKEW, GOVERNOR OF FLORIDA, ET AL. V. HARGRAVE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF FLORIDA

        NO. 573.  ARGUED FEBRUARY 23-24, 1971-- DECIDED MARCH 8,

      1971 


APPELLEES BROUGHT THIS SUIT IN FEDERAL COURT CHALLENGING FLORIDA'S
MILLAGE ROLLBACK LAW AS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT ON THE GROUND THAT IT HAD AN INVIDIOUSLY
DISCRIMINATORY EFFECT IN ITS DISTRIBUTION OF TAXING AUTHORITY FOR
EDUCATIONAL PURPOSES BY A STANDARD RELATED SOLELY TO A COUNTY'S
WEALTH.  APPELLANTS CONTENDED THAT THE STATUTE WAS ONLY PART OF A TOTAL
PLAN MORE NEARLY TO EQUALIZE SCHOOLCHILDREN'S EDUCATIONAL OPPORTUNITIES
ON A STATEWIDE BASIS.  A THREE-JUDGE DISTRICT COURT GRANTED APPELLEES'
MOTION FOR SUMMARY JUDGMENT ON THE BASIS OF THE PLEADINGS AND
APPELLEES' AFFIDAVIT, HAVING REJECTED APPELLANTS' ARGUMENT THAT THE
DISTRICT COURT SHOULD ABSTAIN FROM CONSIDERING THE CASE BECAUSE OF AN
INTERVENING STATE COURT PROCEEDING ATTACKING THE LAW ON STATE
CONSTITUTIONAL GROUNDS.  HELD: 

1.  THE DISTRICT COURT MISTAKENLY RELIED UPON MONROE V. PAPE, 365
U.S. 167, AND MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668, IN REFUSING
TO ABSTAIN FROM DECIDING THE CASE ON THE MERITS PENDING RESOLUTION BY
THE STATE COURTS OF STATE CONSTITUTIONAL CLAIMS, THE SUSTAINMENT OF
WHICH WOULD OBVIATE THE NEED FOR DETERMINING THE FOURTEENTH AMENDMENT
ISSUE.  REETZ V. BOZANICH, 397 U.S. 82, IS AN EXAMPLE OF THE LINE OF
DECISIONS THAT SHOULD INFORM THE DISCRETION OF THE DISTRICT COURT IN
DETERMINING WHETHER TO ABSTAIN. 

2.  SINCE THE MANNER IN WHICH FLORIDA'S OVERALL PROGRAM OPERATES MAY
BE CRITICAL IN RESOLVING THE EQUAL PROTECTION CLAIM, THAT CLAIM SHOULD
BE DECIDED NOT BY SUMMARY JUDGMENT BUT AFTER A FULL HEARING. 

313 F.SUPP.  944, VACATED AND REMANDED. 

PER CURIAM. 

IN 1968, FLORIDA ENACTED A NEW LAW FOR THE FINANCING OF PUBLIC
EDUCATION THROUGH STATE APPROPRIATIONS AND LOCAL AD VALOREM TAXES
ASSESSED BY EACH SCHOOL DISTRICT.  A SECTION OF THE NEW LAW, FLA. STAT.
ANN. SEC. 236.251 (SUPP. 9170), KNOWN AS THE "MILLAGE ROLLBACK LAW,"
PROVIDED THAT, TO BE ELIGIBLE TO RECEIVE STATE MONEYS, A LOCAL SCHOOL
DISTRICT MUST LIMIT AD VALOREM TAXES FOR SCHOOL PURPOSES TO NOT MORE
THAN 10 MILLS OF ASSESSED VALUATION, WITH CERTAIN EXCEPTIONS. 
APPELLEES FILED THIS CLASS ACTION IN THE DISTRICT COURT FOR THE MIDDLE
DISTRICT OF FLORIDA ALLEGING THAT THE MILLAGE ROLLBACK LAW EFFECTED AN
INVIDIOUS DISCRIMINATION, IN VIOLATION OF THE EQUAL PROTECTION CLAUSE,
AGAINST SCHOOL CHILDREN OF PROPERTY-POOR COUNTIES IN THAT 10 MILLS OF
AD VALOREM TAX IN SCHOOL DISTRICTS IN SUCH COUNTIES WOULD PRODUCE LESS
DOLLARS PER CHILD FOR EDUCATIONAL PURPOSES THAN WOULD 10 MILLS OF AD
VALOREM TAX IN OTHER COUNTIES.  A THREE-JUDGE DISTRICT COURT ENTERED A
SUMMARY JUDGMENT IN APPELLEES' FAVOR UPON A DECLARATION THAT THE
MILLAGE ROLLBACK LAW WAS UNCONSTITUTIONAL, AND ENJOINED THE APPELLANTS
FROM WITHHOLDING STATE FUNDS FROM ANY SCHOOL DISTRICT BY VIRTUE OF THE
PROVISIONS OF THAT ACT.  HARGRAVE V. KIRK, 313 F.SUPP.  944 (1970).  WE
NOTED PROBABLE JURISDICTION.  400 U.S. 900 (1970).  WE VACATE AND
REMAND. 

        I 

SUBSEQUENT TO THE FILING OF THIS SUIT, SCHOOL BOARD OF BROWARD
COUNTY V. CHRISTIAN, NO. 69-932, WAS FILED IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT OF LEON COUNTY, FLORIDA.  THAT ACTION ATTACKS
THE MILLAGE ROLLBACK LAW PRIMARILY ON STATE LAW GROUNDS, AS VIOLATIVE
OF PROVISIONS OF THE FLORIDA CONSTITUTION.  THE DISTRICT COURT,
HOWEVER, REJECTED APPELLANTS' ARGUMENT THAT THE COURT "SHOULD ABSTAIN
FROM CONSIDERING THE CASE IN DEFERENCE TO (THE) STATE COURT
PROCEEDING," 313 F.SUPP.,AT 946-947, HOLDING THAT UNDER MONROE V. PAPE,
365 U.S. 167 (1961), AND MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668
)9163), "(THE FACT THAT A STATE REMEDY IS AVAILABLE IS NOT A VALID
BASIS FOR FEDERAL COURT ABSTENTION."  313 F.SUPP.,AT 947.  THE RELIANCE
UPON MONROE V. PAPE AND MCNEESE WAS MISPLACED.  MONROE V. PAPE IS NOT
IN POINT, FOR THERE "THE STATE REMEDY, THOUGH ADEQUATE IN THEORY, WAS
NOT AVAILABLE IN PRACTICE."  365 U.S.,AT 174.  MCNEESE HELD THAT
"ASSERTION OF A FEDERAL CLAIM IN A FEDERAL COURT (NEED NOT) AWAIT AN
ATTEMPT TO VINDICATE THE SAME CLAIM IN A STATE COURT."  373 U.S.,AT
672.  SEE ALSO WISCONSIN V. CONSTANTINEAU, 400 D.S. 433 (1971).  OUR
UNDERSTANDING FROM THE COLLOQUY ON ORAL ARGUMENT WITH COUNSEL FOR THE
PARTIES IS THAT THE CHRISTIAN CASE ASSERTS, NOT THE "SAME CLAIM,"  THAT
IS, THE FEDERAL CLAIM OF ALLEGED DENIAL OF THE FEDERAL RIGHT OF EQUAL
PROTECTION, BUT PRIMARILY STATE LAW CLAIMS UNDER THE FLORIDA
CONSTITUTION, WHICH CLAIMS, IF SUSTAINED, WILL OBVIATE THE NECESSITY OF
DETERMINING THE FOURTEENTH AMENDMENT QUESTION.  IN SUCH CASE, THE LINE
OF DECISIONS OF WHICH REETZ V. BOZANICH, 397 U.S. 82 (1970), IS A
RECENT EXAMPLE, STATES THE PRINCIPLES THAT SHOULD INFORM THE EXERCISE
OF THE DISTRICT COURT'S DISCRETION AS TO WHETHER TO ABSTAIN. 

        II 

SINCE THE CASE MUST BE REMANDED, WE ADD ANOTHER COMMENT.  THE
APPELLEES' MOTION FOR SUMMARY JUDGMENT WAS CONSIDERED ON THE PLEADINGS
AND AN AFFIDAVIT WHICHESSENTIALLY MERELY VERIFIED THE ALLEGATIONS OF
THE AMENDED COMPALINT.  OUR EXAMINATION OF THE PLEADINGS AND THE
AFFIDAVIT PERSUADES US THAT THEY ARE INADEQUATE AS A BASIS FOR DECIDING
THE EQUAL PROTECTION CLAIM.  THEY DO NOT SUFFICIENTLY PRESENT THE FACTS
RELATED TO APPELLANTS' ARGUMENT THAT THE MILLAGE ROLLBACK LAW WAS ONLY
ONE ASPECT OF A COMPREHENSIVE LEGISLATIVE PROGRAM FOR REORGANIZING
EDUCATIONAL FINANCING THROUGHOUT THE STATE TO MORE NEARLY EQUALIZE
EDUCATIONAL OPPORTUNITIES FOR ALL THE SCHOOL CHILDREN OF THE STATE. 
APPELLANTS CONTEND THAT THIS PROGRAM ENACTED A FORMULA CALLING FOR "A
MASSIVE INFUSION OF STATE MONEY INTO THE SEVERAL SCHOOL DISTRICTS,"
WHICH MORE THAN MADE UP THE LOSS SUFFERED BY A SCHOOL DISTRICT UNDER
THE LIMITATION OF 10 MILLS IN THE ASSESSMENT OF AD VALOREM TAXES:  "THE
NET EFFECT OF THE 1968 EDUCATIONAL FINANCING ENACTMENTS WAS NOT ONLY TO
MAKE UP FOR THE LOSS OF FUNDS SUFFERED BY THE COUNTIES REQUIRED TO
REDUCE LOCAL MILLAGE BUT TO GREATLY INCREASE THE MONEYS AVAILABLE TO
THE COUNTIES ON A PER PUPIL BASIS."  APPELLANTS' REPLY BRIEF 4.  SINCE
THE MANNER IN WHICH THE PROGRAM OPERATES MAY BE CRITICAL IN THE
DECISION OF THE EQUAL PROTECTION CLAIM, THAT CLAIM SHOULD NOT BE
DECIDED WITHOUT FULLY DEVELOPING THE FACTUAL RECORD AT A HEARING. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND PART II OF THE
OPINION. 

CHARLES E. MINER, JR., ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEFS WERE RIVERS BUFORD, JR., AND STEPHEN MARC SLEPIN. 

HERSHEL SHANKS ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE ALLAN I. MENDELSOHN, ROBERT M. PERCE, JR., RICHARD H. FRANK,
AND DAVID RUBIN. 

WILLIAM H. ADAMS III FILED A BRIEF FOR THE FLORIDA EDUCATION
RESEARCH FOUNDATION AS AMICUS CURIAE URGING REVERSAL. 
..END :





GROVE PRESS, INC. V. MARYLAND STATE BOARD OF CENSORS, 401 U.S. 480 


       GROVE PRESS, INC., ET AL. V. MARYLAND STATE BOARD OF CENSORS

        APPEAL FROM THE COURT OF APPEALS OF MARYLAND

        NO. 63.  ARGUED NOVEMBER 10, 1970-- DECIDED MARCH 8, 1971 


255 MD. 297, 258 A.2D 240, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION IN
THIS CASE. 

EDWARD DE GRAZIA ARUGED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WERE NATHAN LEWIN, ARNOLD M. WEINER, AND ALAN M. DERSHOWITZ. 

FRANCIS B. BURCH, ATTORNEY GENERAL OF MARYLAND, ARGUED THE CAUSE FOR
APPELLEE.  WITH HIM ON THE BRIEF WAS THOMAS N. BIDDISON, JR., ASSISTANT
ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY FELIX J.
BILGREY FOR THE INTERNATIONAL FILM IMPORTERS & DISTRIBUTORS OF AMERICA,
INC.; BY LOUIS NIZER FOR THE MOTION PICTURE ASSOCIATION OF AMERICA,
INC.; BY LEON FRIEDMAN AND LESTER POLLACK FOR THE NATIONAL ASSOCIATION
OF THEATER OWNERS, INC., AND BY STANLEY FLEISHMAN AND SAM ROSENWEIN FOR
THE ADULT FILM ASSOCIATION OF AMERICAN, INC. 

FRANCIS J. RUDOLPH FILED A BRIEF FOR MORALITY IN MEDIA, INC., AS
AMICUS CURIAE, URGING AFFIRMANCE. 
..END :

















DURHAM V. UNITED STATES, 401 U.S. 481 


       DURHAM V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT

        NO. 5928.  DECIDED MARCH 8, 1971 


NOT UNTIL SEVERAL MONTHS AFTER PETITIONER HAD SEASONABLY FILED A
PETITION FOR REHEARING FROM THE COURT OF APPEALS' AFFIRMANCE OF HIS
CONVICTION AND HE HAD BEEN ADVISED THAT HE WOULD BE NOTIFIED AS SOON AS
THERE WAS A RULING ON THAT PETITION, WAS HE INFORMED (ON FURTHER
INQUIRY) OF THE COURT'S DENIAL THEREOF.  WITHIN THREE WEEKS OF
RECEIVING THAT ADVICE, HE FILED A PETITION FOR CERTIORARI, BUT
THEREAFTER HE DIED.  HELD: 

1.  ON THE FACTS OF THIS CASE, WAIVER OF RULE 22(2)'S TIME
REQUIREMENT FOR FILING A PETITION FOR CERTIORARI IS PROPER. 

2.  DEATH PENDING DIRECT REVIEW, WHETHER BY CERTIORARI (AS IN THIS
CASE) OR APPEAL, OF A FEDERAL CRIMINAL CONVICTION ABATES ALL PREVIOUS
PROSECUTIVE PROCEEDINGS. 

CERTIORARI GRANTED, 419 F.2D 392; VACATED AND REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO DISMISS THE INDICTMENT. 

PER CURIAM. 

PETITIONER WAS CONVICTED OF HAVING KNOWINGLY POSSESSED A COUNTERFEIT
$20 BILL.  AFTER THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED
HIS CONVICTION HE FILED THIS PETITION FOR A WRIT OF CERTIORARI.  WE ARE
NOW ADVISED THAT PETITIONER HAS DIED. 

IT IS TRUE THAT THE PETITION FOR CERTIORARI IS OUT OF TIME UNDER OUR
RULE 22(2), THOUGH TIMELINESS UNDER OUR RULES, OF COURSE, PRESENTS NO
JURISDICTIONAL QUESTION.  SUBSEQUENT TO THE AFFIRMANCE OF HIS
CONVICTION BELOW, PETITIONER FILED A TIMELY PETITION FOR REHEARING. 
UPON HIS INQUIRY TO THE COURT OF APPEALS HE WAS INFORMED THAT HE WOULD
BE NOTIFIED AS TO THE DISPOSITION OF HIS PETITION AS SOON AS THE COURT
ACTED.  WHEN SEVERAL MONTHS PASSED WITHOUT ANY WORD, PETITIONER AGAIN
WROTE TO THAT COURT.  IN REPLY, ON SEPTEMBER 8, 1970, HE RECEIVED A
COPY OF THE ORDER DATED MARCH 5, 1970, DENYING HIS PETITION FOR
REHEARING.  WITHIN THREE WEEKS FROM RECEIPT OF THE DENIAL FROM THE
COURT OF APPEALS HIS PETITION FOR A WRIT OF CERTIORARI WAS DOCKETED IN
THIS COURT.  ON THESE FACTS WAIVER OF OUR RULE 22 IS PROPER. 

OUR CASES WHERE A PETITIONER DIES WHILE A REVIEW IS PENDING ARE NOT
FREE OF AMBIGUITY.  IN A RECENT MANDAMUS ACTION THE PETITIONER DIED AND
WE GRANTED CERTIORARI, VACATED THE JUDGMENT BELOW, AND ORDERED THE
COMPLAINT DISMISSED.  FLETCHER V. BRYAN, 361 U.S. 126.  IN A STATE
HABEAS CORPUS CASE WE GRANTED CERTIORARI AND VACATED THE JUDGMENT SO
THAT THE STATE COURT COULD TAKE WHATEVER ACTION IT DEEMED PROPER. 
GARVIN V. COCHRAN, 371 U.S. 27.  OUR PRACTICE IN CASES ON DIRECT REVIEW
FROM STATE CONVICTIONS HAS BEEN TO DISMISS THE PROCEEDINGS.  SEE
GERSEWITZ V. NEW YORK, 326 U.S. 687.  IN AN EARLIER CASE THE COURT
ANNOUNCED THE APPEAL HAD ABATED, JOHNSON V. TENNESSEE, 214 U.S. 485,
WHILE IN ANOTHER THE COURT STATED THE CAUSE HAD ABATED.  LIST V.
PENNSYLVANIA, 131 U.S. 396. 

IN FEDERAL CRIMINAL CASES WE DEVELOPED THE PRACTICE OF DISMISSING
THE WRIT OF CERTIORARI AND REMANDING THE CAUSE TO THE COURT BELOW. 
SINGER V. UNITED STATES, 323 U.S. 338, 346; AMERICAN TOBACCO CO. V.
UNITED STATES, 328 U.S. 781, 815 N. 11; UNITED STATES V. JOHNSON, 319
U.S. 503, 520 N. 1.  WE HAVE CITED UNITED STATES V. POMEROY, 152 F.
279, REV'D SUB NOM. UNITED STATES V. NEW YORK CENTRAL & H.R.R. CO., 164
F. 324, AND UNITED STATES V. DUNNE, 173 F. 254, IN SUGGESTING SUCH
DISPOSITION ON REMAND "AS LAW AND JUSTICE REQUIRE," BUT BEYOND THIS WE
HAVE BASICALLY ALLOWED THE SCOPE OF THE ABATEMENT TO BE DETERMINED BY
THE LOWER FEDERAL COURTS. 

THE STATUS OF ABATEMENT CAUSED BY DEATH ON DIRECT REVIEW HAS
RECENTLY BEEN DISCUSSED BY THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT
IN CROOKER V. UNITED STATES, 325 F.2D 318.  IN REVIEWING THE CASES THAT
COURT CONCLUDED THAT THE LOWER FEDERAL COURTS WERE UNANIMOUS ON THE
RULE TO BE APPLIED:  DEATH PENDING DIRECT REVIEW OF A CRIMINAL
CONVICTION ABATES NOT ONLY THE APPEAL BUT ALSO ALL PROCEEDINGS HAD IN
THE PROSECUTION FROM ITS INCEPTION.  /1/  ID., AT 320.  AS STATED IN
LIST V. PENNSYLVANIA, SUPRA, ON DEATH OF THE CONVICTED PETITIONER THE
"CAUSE HAS ABATED." 

THE UNANIMITY OF THE LOWER FEDERAL COURTS WHICH HAVE WORKED WITH
THIS PROBLEM OVER THE YEARS FROM POMEROY TO CROOKER IS IMPRESSIVE.  WE
BELIEVE THEY HAVE ADOPTED THE CORRECT RULE.  ACCORDINGLY, THE MOTION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT OF
CERTIORARI ARE GRANTED.  THE JUDGMENT BELOW IS VACATED AND THE CASE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE
INDICTMENT. 

 IT IS SO ORDERED. 

/1/  IT IS SUGGESTED THAT CROOKER IS DIFFERENT BECAUSE IT INVOLVED A
RIGHT OF APPEAL, WHILE HERE WE DEAL WITH A PETITION FOR A WRIT OF
CERTIORARI.  IT IS, OR COURSE, TRUE THAT APPEALS ARE A MATTER OF RIGHT
WHILE DECISIONS ON CERTIORARI PETITIONS ARE WHOLLY DISCRETIONARY. 
CONGRESS, HOWEVER, HAS GIVEN A RIGHT TO PETITION FOR CERTIORARI AND
PETITIONER EXERCISED THAT RIGHT.  NO DECISION HAD BEEN MADE ON THAT
PETITION PRIOR TO HIS DEATH.  SINCE DEATH WILL PREVENT ANY REVIEW ON
THE MERITS, WHETHER THE SITUATION IS AN APPEAL OR CERTIORARI, THE
DISTINCTION BETWEEN THE TWO WOULD NOT SEEM TO BE IMPORTANT FOR PRESENT
PURPOSES. 

MR. JUSTICE MARSHALL, WHOM THE CHIEF JUSTICE AND MR. -USTICE STEWART
JOIN, BELIEVES THAT THE CASE SHOULD BE DISPOSED OF AS FOLLOWS: 

THE PETITIONER HAVING DIED WHILE HIS PETITION FOR CERTIORARI WAS
PENDING BEFORE THIS COURT, WE DISMISS THE PETITION AS MOOT AND DIRECT
THE COURT OF APPEALS TO NOTE THIS ACTION ON ITS RECORDS. 

MR. JUSTICE BLACKMUN, DISSENTING. 

THIS CASE IS HERE ON DURHAM'S PETITION;FOR CERTIORARI AFTER HIS
APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
RESULTED IN THE AFFIRMANCE OF HIS CONVICTION FOR A VIOLATION OF 18
U.S.C. 474.  THE SOLICITOR GENERAL NOW HAS SUGGESTED THAT THE
PETITIONER DIED ON NOVEMBER 20, 1970, WHILE HIS PETITION WAS PENDING
BUT PRIOR TO THIS COURT'S TAKING ANY ACTION UPON IT BY WAY OF GRANT OR
DENIAL. 

THE PETITION IS UNTIMELY.  THE NINTH CIRCUIT'S OPINION WAS FILED ON
NOVEMBER 12, 1969, AND REHEARING WAS DENIED BY THAT COURT ON MARCH 5,
1970.  A PETITION FOR CERTIORARI TO REVIEW THE JUDGMENT OF THE COURT OF
APPEALS IN A CRIMINAL CASE IS TIMELY, UNDER OUR RULE 22(2), ONLY WHEN
IT IS FILED HERE WITHIN 30 DAYS AFTER THE ENTRY OF THE JUDGMENT OR
WITHIN SUCH ADDITIONAL TIME, NOT EXCEEDING 30 DAYS, AS IS ALLOWED BY A
JUSTICE OF THIS COURT FOR GOOD CAUSE SHOWN.  THE PETITION WAS FILED
ONLY ON SEPTEMBER 26, 1970, AND THUS IS OUT OF TIME BY MORE THAN FIVE
MONTHS. 

FURTHER, THE SITUATION IS NOT ONE WHERE THE DECEDENT POSSESSED, AND
HAD EXERCISED, A RIGHT OF APPEAL TO THIS COURT, AND THEN DIED WHILE HIS
APPEAL WAS PENDING.  THAT CONTRASTING AND VERY DIFFERENT SITUATION IS
THE TYPICAL ONE THAT CONFRONTS THE FEDERAL COURTS OF APPEALS AND WITH
WHICH THE EIGHTH CIRCUIT WAS CONCERNED IN CROOKER V. UNITED STATES, 325
F.2D 318 (1963), CITED IN THE COURT'S PER CURIAM OPINION. 

I WOULD MERELY DISMISS THE DECEDENT'S PETITION FOR CERTIORARI,
RATHER THAN DIRECT THE DISMISSAL OF THE INDICTMENT.  THIS DISPOSITION
SEEMS TO ME APPROPRIATELY TO REFLECT THE RULINGS OF AMERICAN TOBACCO
CO. V. UNITED STATES, 328 U.S. 781, 815 N. 11 (1946); SINGER V. UNITED
STATES, 323 U.S. 338, 346 (1945); AND UNITED STATES V. JOHNSON, 319
U.S. 503, 520 N. 1 (1943).  IN CONTRAST, THE DISMISSAL OF THE
INDICTMENT WIPES THE SLATE ENTIRELY CLEAN OF A FEDERAL CONVICTION WHICH
WAS UNSUCCESSFULLY APPEALED THROUGHOUT THE ENTIRE APPEAL PROCESS TO
WHICH THE PETITIONER WAS ENTITLED AS OF RIGHT. 

IF, BY CHANCE, THE SUGGESTION OF DEATH HAS SOME CONSEQUENCE UPON THE
SURVIVOR RIGHTS OF A THIRD PARTY (A FACT NOT APPARENT TO THIS COURT),
THE THIRD PARTY SO AFFECTED IS FREE TO MAKE HIS OWN TIMELY SUGGESTION
OF DEATH TO THE COURT OF APPEALS. 
..END :










BODDIE V. CONNECTICUT, 401 U.S. 371 


       BODDIE ET AL. V. CONNECTICUT ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

 DISTRICT OF CONNECTICUT

        NO. 27.  ARGUED DECEMBER 8, 1969-- REARGUED NOVEMBER 17,

           1970-- DECIDED MARCH 2, 1971 


IN VIEW OF THE BASIC POSITION OF THE MARRIAGE RELATIONSHIP IN OUR
SOCIETY AND THE STATE MONOPOLIZATION OF THE MEANS FOR DISSOLVING THAT
RELATIONSHIP, DUE PROCESS OF LAW PROHIBITS A STATE FROM DENYING, SOLELY
BECAUSE OF INABILITY TO PAY COURT FEES AND COSTS, ACCESS TO ITS COURTS
TO INDIGENTS WHO, IN GOOD FAITH, SEEK JUDICIAL DISSOLUTION OF THEIR
MARRIAGE.  PP. 374-383. 

286 F.SUPP.  968, REVERSED. 

HARLAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED. 
DOUGLAS, J., FILED AN OPINION CONCURRING IN THE RESULT, POST, P. 383. 
BRENNAN, J., FILED AN OPINION CONCURRING IN PART, POST, P. 386.  BLACK,
J., FILED A DISSENTING OPINION, POST, P. 389. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, WELFARE RECIPIENTS RESIDING IN THE STATE OF CONNECTICUT,
BROUGHT THIS ACTION IN THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED,
CHALLENGING AS APPLIED TO THEM, CERTAIN STATE PROCEDURES FOR THE
COMMENCEMENT OF LITIGATION, INCLUDING REQUIREMENTS FOR PAYMENT OF COURT
FEES AND COSTS FOR SERVICE OF PROCESS, THAT RESTRICT THEIR ACCESS TO
THE COURTS IN THEIR EFFORT TO BRING AN ACTION FOR DIVORCE. 

IT APPEARS FROM THE BRIEFS AND ORAL ARGUMENT THAT THE AVERAGE COST
TO A LITIGANT FOR BRINGING AN ACTION FOR DIVORCE IS $60.  SECTION 52
259 OF THE CONNECTICUT GENERAL STATUTES PROVIDES:  "THERE SHALL BE PAID
TO THE CLERKS OF THE SUPREME COURT OR THE SUPERIOR COURT, FOR ENTERING
EACH CIVIL CAUSE, FORTY-FIVE DOLLARS . . . ."  AN ADDITIONAL $15 IS
USUALLY REQUIRED FOR THE SERVICE OF PROCESS BY THE SHERIFF, ALTHOUGH AS
MUCH AS $40 OR $50 MAY BE NECESSARY WHERE NOTICE MUST BE ACCOMPLISHED
BY PUBLICATION.  /1/ 

THERE IS NO DISPUTE AS TO THE INABILITY OF THE NAMED APPELLANTS IN
THE PRESENT CASE TO PAY EITHER THE COURT FEES REQUIRED BY STATUTE OR
THE COST INCURRED FOR THE SERVICE OF PROCESS.  THE AFFIDAVITS IN THE
RECORD ESTABLISH THAT APPELLANTS' WELFARE INCOME IN EACH INSTANCE
BARELY SUFFICES TO MEET THE COSTS OF THE DAILY ESSENTIALS OF LIFE AND
INCLUDES NO ALLOTMENT THAT COULD BE BUDGETED FOR THE EXPENSE TO GAIN
ACCESS TO THE COURTS IN ORDER TO OBTAIN A DIVORCE.  ALSO UNDISPUTED IS
APPELLANTS'"GOOD FAITH" IN SEEKING A DIVORCE. 

ASSUMING, AS WE MUST ON THIS MOTION TO DISMISS THE COMPLAINT, THE
TRUTH OF THE UNDISPUTED ALLEGATIONS MADE BY THE APPELLANTS, IT APPEARS
THAT THEY WERE UNSUCCESSFUL IN THEIR ATTEMPT TO BRING THEIR DIVORCE
ACTIONS IN THE CONNECTICUT COURTS, SIMPLY BY REASON OF THEIR
INDIGENCY.  THE CLERK OF THE SUPERIOR COURT RETURNED THEIR PAPERS "ON
THE GROUND THAT HE COULD NOT ACCEPT THEM UNTIL AN ENTRY FEE HAD BEEN
PAID."  APP. 8-9.  SUBSEQUENT EFFORTS TO OBTAIN A JUDICIAL WAIVER OF
THE FEE REQUIREMENT AND TO HAVE THE COURT EFFECT SERVICE OF PROCESS
WERE TO NO AVAIL.  ID., AT 9. 

APPELLANTS THEREAFTER COMMENCED THIS ACTION IN THE FEDERAL DISTRICT
COURT SEEKING A JUDGMENT DECLARING THAT CONNECTICUT'S STATUTE AND
SERVICE OF PROCESS PROVISIONS, "REQUIRING PAYMENT OF COURT FEES AND
EXPENSES AS A CONDITION PRECEDENT TO OBTAINING COURT RELIEF (ARE)
UNCONSTITUTIONAL (AS) APPLIED TO THESE INDIGENT (APPELLANTS) AND ALL
OTHER MEMBERS OF THE CLASS WHICH THEY REPRESENT."  AS FURTHER RELIEF,
APPELLANTS REQUESTED THE ENTRY OF AN INJUNCTION ORDERING THE
APPROPRIATE OFFICIALS TO PERMIT THEM "TO PROCEED WITH THEIR DIVORCE
ACTIONS WITHOUT PAYMENT OF FEES AND COSTS."  A THREE-JUDGE COURT WAS
CONVENED PURSUANT TO 28 U.S.C. 2281, AND ON JULY 16, 1968, THAT COURT
CONCLUDED THAT "A STATE (MAY) LIMIT ACCESS TO ITS CIVIL COURTS AND
PARTICULARLY IN THIS INSTANCE, TO ITS DIVORCE COURTS, BY THE
REQUIREMENT OF A FILING FEE OR OTHER FEES WHICH EFFECTIVELY BAR PERSONS
ON RELIEF FROM COMMENCING ACTIONS THEREIN."  286 F.SUPP.  968, 972. 

WE NOTED PROBABLE JURISDICTION, 395 U.S. 974 (1969).  THE CASE WAS
HEARD AT THE 1969 TERM AND THEREAFTER WAS SET FOR REARGUMENT AT THE
PRESENT TERM.  399 U.S. 922 (1970).  WE NOW REVERSE.  /2/  OUR
CONCLUSION IS THAT, GIVEN THE BASIC POSITION OF THE MARRIAGE
RELATIONSHIP IN THIS SOCIETY'S HIERARCHY OF VALUES AND THE CONCOMITANT
STATE MONOPOLIZATION OF THE MEANS FOR LEGALLY DISSOLVING THIS
RELATIONSHIP, DUE PROCESS DOES PROHIBIT A STATE FROM DENYING, SOLELY
BECAUSE OF INABILITY TO PAY, ACCESS TO ITS COURTS TO INDIVIDUALS WHO
SEEK JUDICIAL DISSOLUTION OF THEIR MARRIAGES. 

        I 

AT ITS CORE, THE RIGHT TO DUE PROCESS REFLECTS A FUNDAMENTAL VALUE
IN OUR AMERICAN CONSTITUTIONAL SYSTEM.  OUR UNDERSTANDING OF THAT VALUE
IS THE BASIS UPON WHICH WE HAVE RESOLVED THIS CASE. 

PERHAPS NO CHARACTERISTIC OF AN ORGANIZED AND COHESIVE SOCIETY IS
MORE FUNDAMENTAL THAN ITS ERECTION AND ENFORCEMENT OF A SYSTEM OF RULES
DEFINING THE VARIOUS RIGHTS AND DUTIES OF ITS MEMBERS, ENABLING THEM TO
GOVERN THEIR AFFAIRS AND DEFINITIVELY SETTLE THEIR DIFFERENCES IN AN
ORDERLY, PREDICTABLE MANNER.  WITHOUT SUCH A "LEGAL SYSTEM," SOCIAL
ORGANIZATION AND COHESION ARE VIRTUALLY IMPOSSIBLE; WITH THE ABILITY TO
SEEK REGULARIZED RESOLUTION OF CONFLICTS INDIVIDUALS ARE CAPABLE OF
INTERDEPENDENT ACTION THAT ENABLES THEM TO STRIVE FOR ACHIEVEMENTS
WITHOUT THE ANXIETIES THAT WOULD BESET THEM IN A DISORGANIZED SOCIETY. 
PUT MORE SUCCINCTLY, IT IS THIS INJECTION OF THE RULE OF LAW THAT
ALLOWS SOCIETY TO REAP THE BENEFITS OF REJECTING WHAT POLITICAL
THEORISTS CALL THE "STATE OF NATURE." 

AMERICAN SOCIETY, OF COURSE, BOTTOMS ITS SYSTEMATIC DEFINITION OF
INDIVIDUAL RIGHTS AND DUTIES, AS WELL AS ITS MACHINERY FOR DISPUTE
SETTLEMENT, NOT ON CUSTOM OR THE WILL OF STRATEGICALLY PLACED
INDIVIDUALS, BUT ON THE COMMON-LAW MODEL.  IT IS TO COURTS, OR OTHER
QUASI-JUDICIAL OFFICIAL BODIES, THAT WE ULTIMATELY LOOK FOR THE
IMPLEMENTATION OF A REGULARIZED, ORDERLY PROCESS OF DISPUTE
SETTLEMENT.  WITHIN THIS FRAMEWORK, THOSE WHO WROTE OUR ORIGINAL
CONSTITUTION, IN THE FIFTH AMENDMENT, RECOGNIZED THE CENTRALITY OF THE
CONCEPT OF DUE PROCESS IN THE OPERATION OF THIS SYSTEM.  WITHOUT THIS
GUARANTEE THAT ONE MAY NOT BE DEPRIVED OF HIS RIGHTS, NEITHER LIBERTY
NOR PROPERTY, WITHOUT DUE PROCESS OF LAW, THE STATE'S MONOPOLY OVER
TECHNIQUES FOR BINDING CONFLICT RESOLUTION COULD HARDLY BE SAID TO BE
ACCEPTABLE UNDER OUR SCHEME OF THINGS.  ONLY BY PROVIDING THAT THE
SOCIAL ENFORCEMENT MECHANISM MUST FUNCTION STRICTLY WITHIN THESE BOUNDS
CAN WE HOPE TO MAINTAIN AN ORDERED SOCIETY THAT IS ALSO JUST.  IT IS
UPON THIS PREMISE THAT THIS COURT HAS THROUGH YEARS OF ADJUDICATION PUT
FLESH UPON THE DUE PROCESS PRINCIPLE. 

SUCH LITIGATION HAS, HOWEVER, TYPICALLY INVOLVED RIGHTS OF
DEFENDANTS-- NOT, AS HERE, PERSONS SEEKING ACCESS TO THE JUDICIAL
PROCESS IN THE FIRST INSTANCE.  THIS IS BECAUSE OUR SOCIETY HAS BEEN SO
STRUCTURED THAT RESORT TO THE COURTS IS NOT USUALLY THE ONLY AVAILABLE,
LEGITIMATE MEANS OF RESOLVING PRIVATE DISPUTES.  INDEED, PRIVATE
STRUCTURING OF INDIVIDUAL RELATIONSHIPS AND REPAIR OF THEIR BREACH IS
LARGELY ENCOURAGED IN AMERICAN LIFE, SUBJECT ONLY TO THE CAVEAT THAT
THE FORMAL JUDICIAL PROCESS, IF RESORTED TO, IS PARAMOUNT.  THUS, THIS
COURT HAS SELDOM BEEN ASKED TO VIEW ACCESS TO THE COURTS AS AN ELEMENT
OF DUE PROCESS.  THE LEGITIMACY OF THE STATE'S MONOPOLY OVER TECHNIQUES
OF FINAL DISPUTE SETTLEMENT, EVEN WHERE SOME ARE DENIED ACCESS TO ITS
USE, STANDS UNIMPAIRED WHERE RECOGNIZED, EFFECTIVE ALTERNATIVES FOR THE
ADJUSTMENT OF DIFFERENCES REMAIN.  BUT THE SUCCESSFUL INVOCATION OF
THIS GOVERNMENTAL POWER BY PLAINTIFFS HAS OFTEN CREATED SERIOUS
PROBLEMS FOR DEFENDANTS' RIGHTS.  FOR AT THAT POINT, THE JUDICIAL
PROCEEDING BECOMES THE ONLY EFFECTIVE MEANS OF RESOLVING THE DISPUTE AT
HAND AND DENIAL OF A DEFENDANT'S FULL ACCESS TO THAT PROCESS RAISES
GRAVE PROBLEMS FOR ITS LEGITIMACY. 

RECOGNITION OF THIS THEORETICAL FRAMEWORK ILLUMINATES THE PRECISE
ISSUE PRESENTED IN THIS CASE.  AS THIS COURT ON MORE THAN ONE OCCASION
HAS RECOGNIZED, MARRIAGE INVOLVES INTERESTS OF BASIC IMPORTANCE IN OUR
SOCIETY.  SEE, E.G., LOVING V. VIRGINIA, 388 U.S. 1 (1967); SKINNER V.
OKLAHOMA, 316 U.S. 535 (1942); MEYER V. NEBRASKA, 262 U.S. 390 (1923). 
IT IS NOT SURPRISING, THEN, THAT THE STATES HAVE SEEN FIT TO OVERSEE
MANY ASPECTS OF THAT INSTITUTION.  WITHOUT A PRIOR JUDICIAL IMPRIMATUR,
INDIVIDUALS MAY FREELY ENTER INTO AND RESCIND COMMERCIAL CONTRACTS, FOR
EXAMPLE, BUT WE ARE UNAWARE OF ANY JURISDICTION WHERE PRIVATE CITIZENS
MAY COVENANT FOR OR DISSOLVE MARRIAGES WITHOUT STATE APPROVAL.  EVEN
WHERE ALL SUBSTANTIVE REQUIREMENTS ARE CONCEDEDLY MET, WE KNOW OF NO
INSTANCE WHERE TWO CONSENTING ADULTS MAY DIVORCE AND MUTUALLY LIBERATE
THEMSELVES FROM THE CONSTRAINTS OF LEGAL OBLIGATIONS THAT GO WITH
MARRIAGE, AND MORE FUNDAMENTALLY THE PROHIBITION AGAINST REMARRIAGE,
WITHOUT INVOKING THE STATE'S JUDICIAL MACHINERY. 

THUS, ALTHOUGH THEY ASSERT HERE DUE PROCESS RIGHTS AS WOULD-BE
PLAINTIFFS, WE THINK APPELLANTS' PLIGHT, BECAUSE RESORT TO THE STATE
COURTS IS THE ONLY AVENUE TO DISSOLUTION OF THEIR MARRIAGES, IS AKIN TO
THAT OF DEFENDANTS FACED WITH EXCLUSION FROM THE ONLY FORUM EFFECTIVELY
EMPOWERED TO SETTLE THEIR DISPUTES.  RESORT TO THE JUDICIAL PROCESS BY
THESE PLAINTIFFS IS NO MORE VOLUNTARY IN A REALISTIC SENSE THAN THAT OF
THE DEFENDANT CALLED UPON TO DEFEND HIS INTERESTS IN COURT.  FOR BOTH
GROUPS THIS PROCESS IS NOT ONLY THE PARAMOUNT DISPUTE-SETTLEMENT
TECHNIQUE, BUT, IN FACT, THE ONLY AVAILABLE ONE.  IN THIS POSTURE WE
THINK THAT THIS APPEAL IS PROPERLY TO BE RESOLVED IN LIGHT OF THE
PRINCIPLES ENUNCIATED IN OUR DUE PROCESS DECISIONS THAT DELIMIT RIGHTS
OF DEFENDANTS COMPELLED TO LITIGATE THEIR DIFFERENCES IN THE JUDICIAL
FORUM. 

        II 

THESE DUE PROCESS DECISIONS, REPRESENTING OVER A HUNDRED YEARS OF
EFFORT BY THIS COURT TO GIVE CONCRETE EMBODIMENT TO THIS CONCEPT,
PROVIDE, WE THINK, COMPLETE VINDICATION FOR APPELLANTS' CONTENTIONS. 
IN PARTICULAR, PRECEDENT HAS FIRMLY EMBEDDED IN OUR DUE PROCESS
JURISPRUDENCE TWO IMPORTANT PRINCIPLES UPON WHOSE APPLICATION WE REST
OUR DECISION IN THE CASE BEFORE US.

        A 

PRIOR CASES ESTABLISH, FIRST, THAT DUE PROCESS REQUIRES, AT A
MINIMUM, THAT ABSENT A COUNTERVAILING STATE INTEREST OF OVERRIDING
SIGNIFICANCE, PERSONS FORCED TO SETTLE THEIR CLAIMS OF RIGHT AND DUTY
THROUGH THE JUDICIAL PROCESS MUST BE GIVEN A MEANINGFUL OPPORTUNITY TO
BE HEARD.  EARLY IN OUR JURISPRUDENCE, THIS COURT VOICED THE DOCTRINE
THAT "(WHEREVER ONE IS ASSAILED IN HIS PERSON OR HIS PROPERTY, THERE HE
MAY DEFEND," WINDSOR V. MCVEIGH, 93 U.S. 274, 277 (1876).  SEE BALDWIN
V. HALE, 1 WALL.  223 (1864); HOVEY V. ELLIOTT, 167 U.S. 409 (1897). 
THE THEME THAT "DUE PROCESS OF LAW SIGNIFIES A RIGHT TO BE HEARD IN
ONE'S DEFENCE," HOVEY V. ELLIOTT, SUPRA, AT 417, HAS CONTINUALLY
RECURRED IN THE YEARS SINCE BALDWIN, WINDSOR, AND HOVEY.  /3/  ALTHOUGH
"(MANY CONTROVERSIES HAVE RAGED ABOUT THE CRYPTIC AND ABSTRACT WORDS OF
THE DUE PROCESS CLAUSE,"  AS MR. JUSTICE JACKSON WROTE FOR THE COURT IN
MULLANE V. CENTRAL HANOVER TR. CO., 339 U.S. 306 (1950), "THERE CAN BE
NO DOUBT THAT AT A MINIMUM THEY REQUIRE THAT DEPRIVATION OF LIFE,
LIBERTY OR PROPERTY BY ADJUDICATION BE PRECEDED BY NOTICE AND
OPPORTUNITY FOR HEARING APPROPRIATE TO THE NATURE OF THE CASE."  ID.,
AT 313. 

DUE PROCESS DOES NOT, OF COURSE, REQUIRE THAT THE DEFENDANT IN EVERY
CIVIL CASE ACTUALLY HAVE A HEARING ON THE MERITS.  A STATE, CAN, FOR
EXAMPLE, ENTER A DEFAULT JUDGMENT AGAINST A DEFENDANT WHO, AFTER
ADEQUATE NOTICE, FAILS TO MAKE A TIMELY APPEARANCE, SEE WINDSOR, SUPRA,
AT 278, OR WHO, WITHOUT JUSTIFIABLE EXCUSE, VIOLATES A PROCEDURAL RULE
REQUIRING THE PRODUCTION OF EVIDENCE NECESSARY FOR ORDERLY
ADJUDICATION, HAMMOND PACKING CO. V. ARKANSAS, 212 U.S. 322, 351
(1909).  WHAT THE CONSTITUTION DOES REQUIRE IS "AN OPPORTUNITY . . .
GRANTED AT A MEANINGFUL TIME AND IN A MEANINGFUL MANNER,"  ARMSTRONG V.
MANZO, 380 U.S. 545, 552 (1965) (EMPHASIS ADDED), "FOR (A) HEARING
APPROPRIATE TO THE NATURE OF THE CASE," MULLANE V. CENTRAL HANOVER TR.
CO., SUPRA, AT 313.  THE FORMALITY AND PROCEDURAL REQUISITES FOR THE
HEARING CAN VARY, DEPENDING UPON THE IMPORTANCE OF THE INTERESTS
INVOLVED AND THE NATURE OF THE SUBSEQUENT PROCEEDINGS.  /4/  THAT THE
HEARING REQUIRED BY DUE PROCESS IS SUBJECT TO WAIVER, AND IS NOT FIXED
IN FORM DOES NOT AFFECT ITS ROOT REQUIREMENT THAT AN INDIVIDUAL BE
GIVEN AN OPPORTUNITY FOR A HEARING BEFORE HE IS DEPRIVED OF ANY
SIGNIFICANT PROPERTY INTEREST, /5/  EXCEPT FOR EXTRAORDINARY SITUATIONS
WHERE SOME VALID GOVERNMENTAL INTEREST IS AT STAKE THAT JUSTIFIES
POSTPONING THE HEARING UNTIL AFTER THE EVENT.  /6/  IN SHORT, "WITHIN
THE LIMITS OF PRACTICABILITY," ID., AT 318, A STATE MUST AFFORD TO ALL
INDIVIDUALS A MEANINGFUL OPPORTUNITY TO BE HEARD IF IT IS TO FULFILL
THE PROMISE OF THE DUE PROCESS CLAUSE. 

        B 

OUR CASES FURTHER ESTABLISH THAT A STATUTE OR A RULE MAY BE HELD
CONSTITUTIONALLY INVALID AS APPLIED WHEN IT OPERATES TO DEPRIVE AN
INDIVIDUAL OF A PROTECTED RIGHT ALTHOUGH ITS GENERAL VALIDITY AS A
MEASURE ENACTED IN THE LEGITIMATE EXERCISE OF STATE POWER IS BEYOND
QUESTION.  THUS, IN CASES INVOLVING RELIGIOUS FREEDOM, FREE SPEECH OR
ASSEMBLY, THIS COURT HAS OFTEN HELD THAT A VALID STATUTE WAS
UNCONSTITUTIONALLY APPLIED IN PARTICULAR CIRCUMSTANCES BECAUSE IT
INTERFERED WITH AN INDIVIDUAL'S EXERCISE OF THOSE RIGHTS.  /7/ 

NO LESS THAN THESE RIGHTS, THE RIGHT TO A MEANINGFUL OPPORTUNITY TO
BE HEARD WITHIN THE LIMITS OF PRACTICALITY, MUST BE PROTECTED AGAINST
DENIAL BY PARTICULAR LAWS THAT OPERATE TO JEOPARDIZE IT FOR PARTICULAR
INDIVIDUALS.  SEE MULLANE V. CENTRAL HANOVER TR. CO., SUPRA; COVEY V.
TOWN OF SOMERS, 351 U.S. 141 (1956). 

IN MULLANE THIS COURT HELD THAT THE STATUTORY PROVISION FOR NOTICE
BY PUBLICATION IN A LOCAL NEWSPAPER, ALTHOUGH SUFFICIENT AS TO
BENEFICIARIES OF A TRUST WHOSE INTERESTS OR ADDRESSES WERE UNKNOWN TO
THE TRUSTEE, WAS NOT SUFFICIENT NOTICE UNDER THE DUE PROCESS CLAUSE FOR
KNOWN BENEFICIARIES.  SIMILARLY, COVEY HELD THAT NOTICE BY PUBLICATION
IN A FORECLOSURE ACTION, EVEN THOUGH SUFFICIENT TO PROVIDE A NORMAL
PERSON WITH AN OPPORTUNITY FOR A HEARING, WAS NOT SUFFICIENT WHERE THE
DEFENDANT WAS A KNOWN INCOMPETENT.  THE COURT EXPRESSLY REJECTED AN
ARGUMENT THAT "THE FOURTEENTH AMENDMENT DOES NOT REQUIRE THE STATE TO
TAKE MEASURES IN GIVING NOTICE TO AN INCOMPETENT BEYOND THOSE DEEMED
SUFFICIENT IN THE CASE OF THE ORDINARY TAXPAYER."  ID., AT 146. 
JUST AS A GENERALLY VALID NOTICE PROCEDURE MAY FAIL TO SATISFY DUE
PROCESS BECAUSE OF THE CIRCUMSTANCES OF THE DEFENDANT, SO TOO A COST
REQUIREMENT, VALID ON ITS FACE, MAY OFFEND DUE PROCESS BECAUSE IT
OPERATES TO FORECLOSE A PARTICULAR PARTY'S OPPORTUNITY TO BE HEARD. 
THE STATE'S OBLIGATIONS UNDER THE FOURTEENTH AMENDMENT ARE NOT SIMPLY
GENERALIZED ONES; RATHER, THE STATE OWES TO EACH INDIVIDUAL THAT
PROCESS WHICH, IN LIGHT OF THE VALUES OF A FREE SOCIETY, CAN BE
CHARACTERIZED AS DUE. 

  III 

DRAWING UPON THE PRINCIPLES ESTABLISHED BY THE CASES JUST CANVASSED,
WE CONCLUDE THAT THE STATE'S REFUSAL TO ADMIT THESE APPELLANTS TO ITS
COURTS, THE SOLE MEANS IN CONNECTICUT FOR OBTAINING A DIVORCE, MUST BE
REGARDED AS THE EQUIVALENT OF DENYING THEM AN OPPORTUNITY TO BE HEARD
UPON THEIR CLAIMED RIGHT TO A DISSOLUTION OF THEIR MARRIAGES, AND, IN
THE ABSENCE OF A SUFFICIENT COUNTERVAILING JUSTIFICATION FOR THE
STATE'S ACTION, A DENIAL OF DUE PROCESS.  /8/ 

THE ARGUMENTS FOR THIS KIND OF FEE AND COST REQUIREMENT ARE THAT THE
STATE'S INTEREST IN THE PREVENTION OF FRIVOLOUS LITIGATION IS
SUBSTANTIAL, ITS USE OF COURT FEES AND PROCESS COSTS TO ALLOCATE SCARCE
RESOURCES IS RATIONAL, AND ITS BALANCE BETWEEN THE DEFENDANT'S RIGHT TO
NOTICE AND THE PLAINTIFF'S RIGHT TO ACCESS IS REASONABLE. 

IN OUR OPINION, NONE OF THESE CONSIDERATIONS IS SUFFICIENT TO
OVERRIDE THE INTEREST OF THESE PLAINTIFF-APPELLANTS IN HAVING ACCESS TO
THE ONLY AVENUE OPEN FOR DISSOLVING THEIR ALLEGEDLY UNTENABLE
MARRIAGES.  NOT ONLY IS THERE NO NECESSARY CONNECTION BETWEEN A
LITIGANT'S ASSETS AND THE SERIOUSNESS OF HIS MOTIVES IN BRINGING SUIT,
/9/  BUT IT IS HERE BEYOND PRESENT DISPUTE THAT APPELLANTS BRING THESE
ACTIONS IN GOOD FAITH.  MOREOVER, OTHER ALTERNATIVES EXIST TO FEES AND
COST REQUIREMENTS AS A MEANS FOR CONSERVING THE TIME OF COURTS AND
PROTECTING PARTIES FROM FRIVOLOUS LITIGATION, SUCH AS PENALTIES FOR
FALSE PLEADINGS OR AFFIDAVITS, AND ACTIONS FOR MALICIOUS PROSECUTION OR
ABUSE OF PROCESS, TO MENTION ONLY A FEW.  IN THE SAME VEIN WE THINK
THAT RELIABLE ALTERNATIVES EXIST TO SERVICE OF PROCESS BY A STATE-PAID
SHERIFF IN THE STATE IS UNWILLING TO ASSUME THE COST OF OFFICIAL
SERVICE.  THIS IS PERFORCE TRUE OF SERVICE BY PUBLICATION WHICH IS THE
METHOD OF NOTICE LEAST CALCULATED TO BRING TO A POTENTIAL DEFENDANT'S
ATTENTION THE PENDENCY OF JUDICIAL PROCEEDINGS.  SEE MULLANE V. CENTRAL
HANOVER TR. CO., SUPRA.  WE THINK IN THIS CASE SERVICE AT DEFENDANT'S
LAST KNOWN ADDRESS BY MAIL AND POSTED NOTICE IS EQUALLY EFFECTIVE AS
PUBLICATION IN A NEWSPAPER. 

WE ARE THUS LEFT TO EVALUATE THE STATE'S ASSERTED INTEREST IN ITS
FEE AND COST REQUIREMENTS AS A MECHANISM OF RESOURCE ALLOCATION OR COST
RECOUPMENT.  SUCH A JUSTIFICATION WAS OFFERED AND REJECTED IN GRIFFIN
V. ILLINOIS, 351 U.S. 12 (1956).  IN GRIFFIN IT WAS THE REQUIREMENT OF
A TRANSCRIPT BEYOND THE MEANS OF THE INDIGENT THAT BLOCKED ACCESS TO
THE JUDICIAL PROCESS.  WHILE IN GRIFFIN THE TRANSCRIPT COULD BE WAIVED
AS A CONVENIENT BUT NOT NECESSARY PREDICATE TO COURT ACCESS, HERE THE
STATE INVARIABLY IMPOSES THE COSTS AS A MEASURE OF ALLOCATING ITS
JUDICIAL RESOURCES.  SURELY, THEN, THE RATIONALE OF GRIFFIN COVERS THIS
CASE. 

        IV 

IN CONCLUDING THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT REQUIRES THAT THESE APPELLANTS BE AFFORDED AN OPPORTUNITY TO
GO INTO COURT TO OBTAIN A DIVORCE, WE WISH TO RE-EMPHASIZE THAT WE GO
NO FURTHER THAN NECESSARY TO DISPOSE OF THE CASE BEFORE US, A CASE
WHERE THE BONA FIDES OF BOTH APPELLANTS' INDIGENCY AND DESIRE FOR
DIVORCE ARE HERE BEYOND DISPUTE.  WE DO NOT DECIDE THAT ACCESS FOR ALL
INDIVIDUALS TO THE COURTS IS A RIGHT THAT IS, IN ALL CIRCUMSTANCES,
GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT SO
THAT ITS EXERCISE MAY NOT BE PLACED BEYOND THE REACH OF ANY INDIVIDUAL,
FOR, AS WE HAVE ALREADY NOTED, IN THE CASE BEFORE US THIS RIGHT IS THE
EXCLUSIVE PRECONDITION TO THE ADJUSTMENT OF A FUNDAMENTAL HUMAN
RELATIONSHIP.  THE REQUIREMENT THAT THESE APPELLANTS RESORT TO THE
JUDICIAL PROCESS IS ENTIRELY A STATE-CREATED MATTER.  THUS WE HOLD ONLY
THAT A STATE MAY NOT, CONSISTENT WITH THE OBLIGATIONS IMPOSED ON IT BY
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, PRE-EMPT THE RIGHT
TO DISSOLVE THIS LEGAL RELATIONSHIP WITHOUT AFFORDING ALL CITIZENS
ACCESS TO THE MEANS IT HAS PRESCRIBED FOR DOING SO.

REVERSED. 

/1/  APP. 9.  THE DOLLAR FIGURES ARE AVERAGES TAKEN FROM THE
UNDISPUTED ALLEGATIONS OF THE COMPLAINT.  THE PARTICULAR FEE THE
SHERIFF RECEIVES FROM THE PLAINTIFF FOR SERVICE OF PROCESS IN ANY ONE
CASE DEPENDS ON THE DISTANCE HE MUST TRAVEL TO EFFECTUATE SERVICE OF
PROCESS.  CONN. GEN. STAT. REV. 52-261 (1968). 

/2/  FOLLOWING COLLOQUY AT THE ORAL REARGUMENT AS TO THE POSSIBLE
AVAILABILITY OF PUBLIC OR PRIVATE FUNDS TO ENABLE PLAINTIFFS-APPELLANTS
TO DEFRAY THE EXPENSE REQUIREMENTS AT ISSUE IN THIS CASE, THE PARTIES
SUBMITTED FURTHER PAPERS ON THIS SCORE.  NOTHING IN THESE MATERIALS
WOULD JUSTIFY OUR DECLINING TO ADJUDICATE THE CONSTITUTIONAL QUESTION
SQUARELY PRESENTED BY THIS RECORD. 

/3/  SEE GOLDBERG V. KELLY, 397 U.S. 254 (1970); SNIADACH V. FAMILY
FINANCE CORP., 395 U.S. 337 (1969); ARMSTRONG V. MANZO, 380 U.S. 545
(1965); SCHROEDER V. NEW YORK, 371 U.S. 208, 212 (1962); BEST V.
HUMBOLDT PLACER MINING CO., 371 U.S. 334, 338 (1963); COVEY V. TOWN OF
SOMERS, 351 U.S. 141 (1956); MULLANE V. CENTRAL HANOVER TR. CO., 339
U.S. 306 (1950); ANDERSON NAT. BANK V. LUCKETT, 321 U.S. 233, 246
(1944); OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126, 152-153
(1941); MORGAN V. UNITED STATES, 304 U.S. 1 (1938); UNITED STATES V.
ILLINOIS CENTRAL R. CO., 291 U.S. 457, 463 (1934); BRINKERHOFF-FARIS
TRUST & SAVINGS CO. V. HILL, 281 U.S. 673 (1930); COE V. ARMOUR
FERTILIZER WORKS, 237 U.S. 413, 423 (1915); LONDONER V. DENVER, 210
U.S. 373, 385-386 (1908); LOUISVILLE & NASHVILLE R. CO. V. SCHMIDT, 177
U.S. 230, 236 (1900). 

/4/  COMPARE GOLDBERT V. KELLY, SUPRA, WITH IN RE WINSHIP, 397 U.S.
358 (1970).  SEE ALSO BOWLES V. WILLINGHAM, 321 U.S. 503, 520-521
(1944). 

/5/  GOLDBERG V. KELLY, SUPRA; SNIADACH V. FAMILY FINANCE CORP.,
SUPRA; OPP COTTON MILLS V. ADMINISTRATOR, SUPRA, AT 152-153; UNITED
STATES V. ILLINOIS CENTRAL R. CO., SUPRA, AT 463; COE V. ARMOUR
FERTILIZER WORKS, SUPRA. 

/6/  CAFETERIA & RESTAURANT WORKERS UNION V. MCELROY, 367 U.S. 886
(1961); EWING V. MYTINGER & CASSELBERRY, INC., 339 U.S. 594 (1950);
FAHEY V. MALLONEE, 332 U.S. 245 (1947); BOWLES V. WILLINGHAM, SUPRA;
YAKUS V. UNITED STATES, 321 U.S. 414 (1944). 

/7/  E.G., SCHNEIDER V. STATE, 308 U.S. 147 (1939); CANTWELL V.
CONNECTICUT, 310 U.S. 296 (1940); BATES V. LITTLE ROCK, 361 U.S. 516,
527 (1960); SHERBERT V. VERNER, 374 U.S. 398 (1963). 

/8/  AT LEAST ONE COURT HAS ALREADY RECOGNIZED THE SPECIAL NATURE OF
THE DIVORCE ACTION.  JUSTICE SOBEL IN A CASE LIKE THAT BEFORE US TOOK
NOTE OF THE STATE'S INVOLVEMENT IN THE MARITAL RELATIONSHIP: 

"MARRIAGE IS CLEARLY MARKED WITH THE PUBLIC INTEREST.  IN THIS
STATE, A MARRIAGE CANNOT BE DISSOLVED EXCEPT BY 'DUE JUDICIAL
PROCEEDINGS . . . .'  WE HAVE ERECTED BY STATUTE A MONEY HURDLE TO SUCH
DISSOLUTION BY REQUIRING IN MANY CIRCUMSTANCES THE SERVICE OF A SUMMONS
BY PUBLICATION . . . . THIS HURDLE IS AN EFFECTIVE BARRIER TO
(PLAINTIFF'S) ACCESS TO THE COURTS.  THE LOSS OF ACCESS TO THE COURTS
IN AN ACTION FOR DIVORCE IS A RIGHT OF SUBSTANTIAL MAGNITUDE WHEN ONLY
THROUGH THE COURTS MAY REDRESS OR RELIEF BE OBTAINED."  JDFFREYS V.
JEFFREYS, 58 MISC. 2D 1045, 1056, 296 N.Y.S.2D 74, 87 (1968). 

SEE ALSO BROWN V. CHASTAIN, 416 F.2D 1012, 1014 (CA5 1969) (RIVES,
J., DISSENTING). 

/9/  WE THINK COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541 (1949),
HAS NO BEARING ON THIS CASE.  DIFFERENCES BETWEEN DIVORCE ACTIONS AND
DERIVATIVE ACTIONS ASIDE, UNLIKE COHEN, WHERE WE CONSIDERED MERELY A
STATUTE ON ITS FACE, THE APPLICATION OF THIS STATUTE HERE OPERATES TO
CUT OFF ENTIRELY ACCESS TO THE COURTS. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE RESULT. 

I BELIEVE THIS CASE SHOULD BE DECIDED UPON THE PRINCIPLES DEVELOPED
IN THE LINE OF CASES MARKED BY GRIFFIN V. ILLINOIS, 351 U.S. 12.  THERE
WE CONSIDERED A STATE LAW WHICH DENIED PERSONS CONVICTED OF A CRIME
FULL APPELLATE REVIEW IF THEY WERE UNABLE TO PAY FOR A TRANSCRIPT OF
THE TRIAL.  MR. JUSTICE BLACK'S OPINION ANNOUNCING THE JUDGMENT OF THE
COURT STATED: 

     "SUCH A DENIAL IS A MISFIT IN A COUNTRY DEDICATED TO AFFORDING

 EQUAL JUSTICE TO ALL AND SPECIAL PRIVILEGES TO NONE IN THE

  ADMINISTRATION OF ITS CRIMINAL LAW.  THERE CAN BE NO EQUAL

  JUSTICE WHERE THE KIND OF A TRIAL A MAN GETS DEPENDS ON THE

  AMOUNT OF MONEY HE HAS.  DESTITUTE DEFENDANTS MUST BE AFFORDED AS

  ADEQUATE APPELLATE REVIEW AS DEFENDANTS WHO HAVE MONEY ENOUGH TO

  BUY TRANSCRIPTS."  ID., AT 19. 

GRIFFIN HAS HAD A STURDY GROWTH.  "OUR DECISIONS FOR MORE THAN A
DECADE NOW HAVE MADE CLEAR THAT DIFFERENCES IN ACCESS TO THE
INSTRUMENTS NEEDED TO VINDICATE LEGAL RIGHTS, WHEN BASED UPON THE
FINANCIAL SITUATION OF THE DEFENDANT, ARE REPUGNANT TO THE
CONSTITUTION."  ROBERTS V. LAVALLEE, 389 U.S. 40, 42.  SEE ALSO
WILLIAMS V. OKLAHOMA CITY, 395 U.S. 458; LONG V. DISTRICT COURT OF
IOWA, 385 U.S. 192; DRAPER V. WASHINGTON, 372 U.S. 487.  BUT GRIFFIN
HAS NOT BEEN LIMITED TO SECURING A RECORD FOR INDIGENTS WHO APPEAL
THEIR CONVICTIONS.  IF THE MORE AFFLUENT HAVE COUNSEL ON APPEAL, THEN
COUNSEL FOR INDIGENTS MUST BE PROVIDED ON APPEAL OF A CRIMINAL
CONVICTION.  DOUGLAS V. CALIFORNIA, 372 U.S. 353.  THE TIE TO GRIFFIN
WAS EXPLICIT.  "IN EITHER CASE (GRIFFIN OR DOUGLAS) THE EVIL IS THE
SAME:  DISCRIMINATION AGAINST THE INDIGENT."  ID., AT 355. 

IN BURNS V. OHIO, 360 U.S. 252, WE INVALIDATED A PROCEDURE WHEREBY
CASES WITHIN THE JURISDICTION OF THE STATE SUPREME COURT WOULD NOT BE
CONSIDERED IF A PERSON COULD NOT PAY THE FILING FEE.  IN SMITH V.
BENNETT, 365 U.S. 708, WE HELD THAT REQUIRING INDIGENTS TO PAY FILING
FEES BEFORE A WRIT OF HABEAS CORPUS COULD BE CONSIDERED IN STATE COURT
WAS INVALID UNDER THE EQUAL PROTECTION CLAUSE.  HERE CONNECTICUT HAS
PROVIDED REQUIREMENTS FOR MARRIED COUPLES TO OBTAIN DIVORCES AND
BECAUSE OF FILING FEES THE NECESSARY MONEY.  THE MORE AFFLUENT CAN
OBTAIN A DIVORCE; THE INDIGENT CANNOT.  THIS SITUATION IS COMPARABLE TO
BURNS V. OHIO, AND SMITH V. BENNETT. 

THE DUE PROCESS CLAUSE ON WHICH THE COURT RELIES HAS PROVEN VERY
ELASTIC IN THE HANDS OF JUDGES.  "THE DOCTRINE THAT PREVAILED IN
LOCHNER (V. NEW YORK, 198 U.S. 45), COPPAGE (V. KANSAS, 236 U.S. 1),
ADKINS (V. CHILDREN'S HOSPITAL, 261 U.S. 525), (JAY) BURNS (BAKING CO
V. BRYAN, 264 U.S. 504), AND LIKE CASES-- THAT DUE PROCESS AUTHORIZES
COURTS TO HOLD LAWS UNCONSTITUTIONAL WHEN THEY BELIEVE THE LEGISLATURE
HAS ACTED UNWISELY-- HAS LONG SINCE BEEN DISCARDED."  FERGUSON V.
SKRUPA, 372 U.S. 726, 730.  I WOULD NOT INVITE ITS REVIVAL. 

WHATEVER RESIDUAL ELEMENT OF SUBSTANTIVE LAW THE DUE PROCESS CLAUSE
MAY STILL HAVE (THOMPSON V. LOUISVILLE, 362 U.S. 199), IT ESSENTIALLY
REGULATES PROCEDURE.  SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337;
WISCONSIN V. CONSTANTINEAU, 400 U.S. 433.  THE COURT TODAY PUTS "FLESH"
UPON THE DUE PROCESS CLAUSE BY CONCLUDING THAT MARRIAGE AND ITS
DISSOLUTION ARE SO IMPORTANT THAT AN UNHAPPY COUPLE WHO ARE INDIGENT
SHOULD HAVE ACCESS TO THE DIVORCE COURTS FREE OF CHARGE.  FISHING MAY
BE EQUALLY IMPORTANT TO SOME COMMUNITIES.  MAY AN INDIGENT BE EXCUSED
IF HE DOSE NOT OBTAIN A LICENSE WHICH REQUIRES PAYMENT OF MONEY THAT HE
DOES NOT HAVE?  HOW ABOUT A REQUIREMENT OF AN ONEROUS BOND TO PREVENT
SUMMARY EVICTION FROM RENTED PROPERTY?  THE AFFLUENT CAN PUT UP THE
BOND, THOUGH THE INDIGENT MAY NOT BE ABLE TO DO SO.  SEE WILLIAMS V.
SHAFFER, 385 U.S. 1037.  IS HOUSING LESS IMPORTANT TO THE MUCILAGE
HOLDING SOCIETY TOGETHER THAN MARRIAGE?  THE EXAMPLES COULD BE
MULTIPLIED.  I DO NOT SEE THE LENGTH OF THE ROAD WE MUST FOLLOW IF WE
ACCEPT MY BROTHER HARLAN'S INVITATION.  THE QUESTION HISTORICALLY HAS
BEEN WHETHER THE RIGHT CLAIMED IS "OF THE VERY ESSENCE OF A SCHEME OF
ORDERED LIBERTY."  PALKO V. CONNECTICUT, 302 U.S. 319, 325.  THAT MAKES
THE TEST HIGHLY SUBJECTIVE AND DEPENDENT ON THE IDIOSYNCRASIES OF
INDIVIDUAL JUDGES AS LOCHNER, COPPAGE, AND ADKINS ILLUSTRATE. 

THE REACH OF THE EQUAL PROTECTION CLAUSE IS NOT DEFINABLE WITH
MATHEMATICAL PRECISION.  BUT IN SPITE OF DOUBTS BY SOME, /1/  AS IT HAS
BEEN CONSTRUED, RATHER DEFINITE GUIDELINES HAVE BEEN DEVELOPED:  RACE
IS ONE (STRAUDER V. WEST VIRGINIA, 100 U.S. 303; MCLAUGHLIN V. FLORIDA,
379 U.S. 184); ALIENAGE IS ANOTHER (TAKAHASHI V. FISH & GAME COMM'N,
334 U.S. 410); RELIGION IS ANOTHER (SHERBERT V. VERNER, 374 U.S. 398);
POVERTY IS STILL ANOTHER (GRIFFIN V. ILLINOIS, SUPRA); AND CLASS OR
CASTE YET ANOTHER (SKINNER V. OKLAHOMA, 316 U.S. 535). 

THE POWER OF THE STATES OVER MARRIAGE AND DIVORCE IS, OF COURSE,
COMPLETE EXCEPT AS LIMITED BY SPECIFIC CONSTITUTIONAL PROVISIONS.  BUT
COULD A STATE DENY DIVORCES TO DOMICILIARIES WHO WERE NEGROES AND GRANT
THEM TO WHITES?  DENY THEM TO RESIDENT ALIENS AND GRANT THEM TO
CITIZENS?  DENY THEM TO CATHOLICS AND GRANT THEM TO PROTESTANTS?  DENY
THEM TO THOSE CONVICTED OF LARCENY AND GRANT THEM TO THOSE CONVICTED OF
EMBEZZLEMENT? 

HERE THE INVIDIOUS DISCRIMINATION IS BASED ON ONE OF THE GUIDELINES:
POVERTY.     AN INVIDIOUS DISCRIMINATION BASED ON POVERTY IS ADEQUATE
FOR THIS CASE.  WHILE CONNECTICUT HAS PROVIDED A PROCEDURE FOR SEVERING
THE BONDS OF MARRIAGE, A PERSON CAN MEET EVERY REQUIREMENT SAVE COURT
FEES OR THE COST OF SERVICE OF PROCESS AND BE DENIED A DIVORCE. 
CONNECTICUT SAYS IN ITS BRIEF THAT THIS IS JUSTIFIED BECAUSE "THE STATE
DOES NOT FAVOR DIVORCES; AND ONLY PERMITS A DIVORCE TO BE GRANTED WHEN
THOSE CONDITIONS ARE FOUND TO EXIST, IN RESPECT TO ONE OR THE OTHER OF
THE NAMED PARTIES, WHICH SEEM TO THE LEGISLATURE TO MAKE IT PROBABLE
THAT THE INTERESTS OF SOCIETY WILL BE BETTER SERVED AND THAT PARTIES
WILL BE HAPPIER, AND SO THE BETTER CITIZENS, SEPARATE, THAN IF
COMPELLED TO REMAIN TOGETHER."     THUS, UNDER CONNECTICUT LAW DIVORCES
MAY BE DENIED OR GRANTED SOLELY ON THE BASIS OF WEALTH.  JUST AS
DENYING FURTHER JUDICIAL REVIEW IN BURNS AND SMITH, APPELLATE COUNSEL
IN DOUGLAS, AND A TRANSCRIPT IN GRIFFIN CREATED AN INVIDIOUS
DISTINCTION BASED ON WEALTH, SO, TOO, DOES MAKING THE GRANT OR DENIAL
OF A DIVORCE TO TURN ON THE WEALTH OF THE PARTIES.  AFFLUENCE DOES NOT
PASS MUSTER UNDER THE EQUAL PROTECTION CLAUSE FOR DETERMINING WHO MUST
REMAIN MARRIED AND WHO SHALL BE ALLOWED TO SEPARATE. 

/1/  SEE KARST, INVIDIOUS DISCRIMINATION, 16 U.C.L.A.L.REV.  716
(1969). 

MR. JUSTICE BRENNAN, CONCURRING IN PART. 

I JOIN THE COURT'S OPINION TO THE EXTENT THAT IT HOLDS THAT
CONNECTICUT DENIES PROCEDURAL DUE PROCESS IN DENYING THE INDIGENT
APPELLANTS ACCESS TO ITS COURTS FOR THE SOLE REASON THAT THEY CANNOT
PAY A REQUIRED FEE.  "(CONSIDERATION OF WHAT PROCEDURES DUE PROCESS MAY
REQUIRE UNDER ANY GIVEN SET OF CIRCUMSTANCES MUST BEGIN WITH A
DETERMINATION OF THE PRECISE NATURE OF THE GOVERNMENT FUNCTION INVOLVED
AS WELL AS OF THE PRIVATE INTEREST THAT HAS BEEN AFFECTED BY
GOVERNMENTAL ACTION."  CAFETERIA & RESTAURANT WORKERS UNION V. MCELROY,
367 U.S. 886, 895 (1961); GOLDBERG V. KELLY, 397 U.S. 254, 263 (1970). 
WHEN A STATE'S INTEREST IN IMPOSING A FEE REQUIREMENT ON AN INDIGENT IS
COMPARED TO THE INDIGENT'S INTEREST IN BEING HEARD, IT IS CLEAR THAT
THE LATTER IS THE WEIGHTIER.  IT IS AN UNJUSTIFIABLE DENIAL OF A
HEARING, AND THEREFORE A DENIAL OF DUE PROCESS, TO CLOSE THE COURTS TO
AN INDIGENT ON THE GROUND OF NONPAYMENT OF A FEE. 

BUT I CANNOT JOIN THE COURT'S OPINION INSOFAR AS TODAY'S HOLDING IS
MADE TO DEPEND UPON THE FACTOR THAT ONLY THE STATE CAN GRANT A DIVORCE
AND THAT AN INDIGENT WOULD BE LOCKED INTO A MARRIAGE IF UNABLE TO PAY
THE FEES REQUIRED TO OBTAIN A DIVORCE.  A STATE HAS AN ULTIMATE
MONOPOLY OF ALL JUDICIAL PRO-ESS AND ATTENDANT ENFORCEMENT MACHINERY. 
AS A PRACTICAL MATTER, IF DISPUTES CANNOT BE SUCCESSFULLY SETTLED
BETWEEN THE PARTIES, THE COURT SYSTEM IS USUALLY "THE ONLY FORUM
EFFECTIVELY EMPOWERED TO SETTLE THEIR DISPUTES.  RESORT TO THE JUDICIAL
PROCESS BY THESE PLAINTIFFS IS NO MORE VOLUNTARY IN A REALISTIC SENSE
THAN THAT OF THE DEFENDANT CALLED UPON TO DEFEND HIS INTERESTS IN
COURT."  ANTE, AT 376-377.  IN THIS CASE, THE COURT HOLDS THAT
CONNECTICUT'S UNYIELDING FEE REQUIREMENT VIOLATES THE DUE PROCESS
CLAUSE BY DENYING APPELLANTS "AN OPPORTUNITY TO BE HEARD UPON THEIR
CLAIMED RIGHT TO A DISSOLUTION OF THEIR MARRIAGES" WITHOUT A SUFFICIENT
COUNTERVAILING JUSTIFICATION.  ANTE, AT 380.  I SEE NO CONSTITUTIONAL
DISTINCTION BETWEEN APPELLANTS' ATTEMPT TO ENFORCE THIS STATE STATUTORY
RIGHT AND AN ATTEMPT TO VINDICATE ANY OTHER RIGHT ARISING UNDER FEDERAL
OR STATE LAW.  IF FEE REQUIREMENTS CLOSE THE COURTS TO AN INDIGENT HE
CAN NO MORE INVOKE THE AID OF THE COURTS FOR OTHER FORMS OF RELIEF THAN
HE CAN ESCAPE THE LEGAL INCIDENTS OF A MARRIAGE.  THE RIGHT TO BE HEARD
IN SOME WAY AT SOME TIME EXTENDS TO ALL PROCEEDINGS ENTERTAINED BY
COURTS.  THE POSSIBLE DISTINCTIONS SUGGESTED BY THE COURT TODAY WILL
NOT WITHSTAND ANALYSIS. 

IN ADDITION, THIS CASE PRESENTS A CLASSIC PROBLEM OF EQUAL
PROTECTION OF THE LAWS.  THE QUESTION THAT THE COURT TREATS EXCLUSIVELY
AS ONE OF DUE PROCESS INEVITABLY IMPLICATES CONSIDERATIONS OF BOTH DUE
PROCESS AND EQUAL PROTECTION.  CERTAINLY, THERE IS AT ISSUE THE DENIAL
OF A HEARING, A MATTER FOR ANALYSIS UNDER THE DUE PROCESS CLAUSE.  BUT
CONNECTICUT DOES NOT DENY A HEARING TO EVERYONE IN THESE CIRCUMSTANCES;
IT DENIES IT ONLY TO PEOPLE WHO FAIL TO PAY CERTAIN FEES.  THE VALIDITY
OF THIS PARTIAL DENIAL, OR DIFFERENTIATION IN TREATMENT, CAN BE TESTED
AS WELL UNDER THE EQUAL PROTECTION CLAUSE. 

IN GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956), WE HELD UNDER THE EQUAL
PROTECTION CLAUSE AS WELL AS THE DUE PROCESS CLAUSE THAT A STATE MAY
NOT DENY A FREE TRANSCRIPT TO AN INDIGENT, WHERE THE TRANSCRIPT IS
NECESSARY FOR A DIRECT APPEAL FROM HIS CONVICTION.  SUBSEQUENTLY, WE
HAVE APPLIED AND EXTENDED THAT PRINCIPLE IN NUMEROUS CRIMINAL CASES. 
SEE, E.G, ESKRIDGE V. WASHINGTON STATE BOARD OF PRISON TERMS & PAROLES,
357 U.S. 214 (1958); BURNS V. OHIO, 360 U.S. 252 (1959); SMITH V.
BENNETT, 365 U.S. 708 (1961); COPPEDGE V. UNITED STATES, 369 U.S. 438
(1962); LANE V. BROWN, 372 U.S. 477 (1963); DRAPER V. WASHINGTON, 372
U.S. 487 (1963); RINALDI V. YEAGER, 384 U.S. 305 (1966); LONG V.
DISTRICT COURT OF IOWA, 385 U.S. 192 (1966); ROBERTS V. LAVALLEE, 389
U.S. 40 (1967); GARDNER V. CALIFORNIA, 393 U.S. 367 (1969).  THE
RATIONALE OF GRIFFIN COVERS THE PRESENT CASE.  COURTS ARE THE CENTRAL
DISPUTE-SETTLING INSTITUTIONS IN OUR SOCIETY.  THEY ARE BOUND TO DO
EQUAL JUSTICE UNDER LAW, TO RICH AND POOR ALIKE.  THEY FAIL TO PERFORM
THEIR FUNCTION IN ACCORDANCE WITH THE EQUAL PROTECTION CLAUSE IF THEY
SHUT THEIR DOORS TO INDIGENT PLAINTIFFS ALTOGETHER.  WHERE MONEY
DETERMINES NOT MERELY "THE KIND OF TRIAL A MAN GETS,"  GRIFFIN V.
ILLINOIS, SUPRA, AT 19, BUT WHETHER HE GETS INTO COURT AT ALL, THE
GREAT PRINCIPLE OF EQUAL PROTECTION BECOMES A MOCKERY.  A STATE MAY NOT
MAKE ITS JUDICIAL PROCESSES AVAILABLE TO SOME BUT DENY THEM TO OTHERS
SIMPLY BECAUSE THEY CANNOT PAY A FEE.  CF. HARPER V. VIRGINIA BOARD OF
ELECTIONS, 383 U.S. 663 (1966).  IN MY VIEW, CONNECTICUT'S FEE
REQUIREMENT, AS APPLIED TO AN INDIGENT, IS A DENIAL OF EQUAL
PROTECTION. 

MR. JUSTICE BLACK, DISSENTING. 

THIS IS A STRANGE CASE AND A STRANGE HOLDING.  ABSENT SOME SPECIFIC
FEDERAL CONSTITUTIONAL OR STATUTORY PROVISION, MARRIAGE IN THIS COUNTRY
IS COMPLETELY UNDER STATE CONTROL, AND SO IS DIVORCE.  WHEN THE FIRST
SETTLERS ARRIVED HERE THE POWER TO GRANT DIVORCES IN GREAT BRITAIN WAS
NOT VESTED IN THAT COUNTRY'S COURTS BUT IN ITS PARLIAMENT.  AND AS
RECENTLY AS 1888 THIS COURT IN MAYNARD V. HILL, 125 U.S. 190, UPHELD A
DIVORCE GRANTED BY THE LEGISLATURE OF THE TERRITORY OF OREGON.  SINCE
THAT TIME THE POWER OF STATE LEGISLATURES TO GRANT DIVORCES OR VEST
THAT POWER IN THEIR COURTS SEEMS NOT TO HAVE BEEN QUESTIONED.  IT IS
NOT BY ACCIDENT THAT MARRIAGE AND DIVORCE HAVE ALWAYS BEEN CONSIDERED
TO BE UNDER STATE CONTROL.  THE INSTITUTION OF MARRIAGE IS OF PECULIAR
IMPORTANCE TO THE PEOPLE OF THE STATES.  IT IS WITHIN THE STATES THAT
THEY LIVE AND VOTE AND REAR THEIR CHILDREN UNDER LAWS PASSED BY THEIR
ELECTED REPRESENTATIVES.  THE STATES PROVIDE FOR THE STABILITY OF THEIR
SOCIAL ORDER, FOR THE GOOD MORALS OF ALL THEIR CITIZENS, AND FOR THE
NEEDS OF CHILDREN FROM BROKEN HOMES.  THE STATES, THEREFORE, HAVE
PARTICULAR INTERESTS IN THE KINDS OF LAWS REGULATING THEIR CITIZENS
WHEN THEY ENTER INTO, MAINTAIN, AND DISSOLVE MARRIAGES.  THE POWER OF
THE STATES OVER MARRIAGE AND DIVORCE IS COMPLETE EXCEPT AS LIMITED BY
SPECIFIC CONSTITUTIONAL PROVISIONS.  LOVING V. VIRGINIA, 388 U.S. 1, 7
12 (1967). 

THE COURT HERE HOLDS, HOWEVER, THAT THE STATE OF CONNECTICUT HAS SO
LITTLE CONTROL OVER MARRIAGES AND DIVORCES OF ITS OWN CITIZENS THAT IT
IS WITHOUT POWER TO CHARGE THEM PRACTICALLY NOMINAL INITIAL COURT COSTS
WHEN THEY ARE WITHOUT READY MONEY TO PUT UP THOSE COSTS.  THE COURT
HOLDS THAT THE STATE LAW REQUIRING PAYMENT OF COSTS IS BARRED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION.  TWO MEMBERS OF THE MAJORITY BELIEVE THAT THE EQUAL
PROTECTION CLAUSE ALSO APPLIES.  I THINK THE CONNECTICUT COURT COSTS
LAW IS BARRED BY NEITHER OF THOSE CLAUSES. 

IT IS TRUE, AS THE MAJORITY POINTS OUT, THAT THE COURT DID HOLD IN
GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956), THAT INDIGENT DEFENDANTS IN
CRIMINAL CASES MUST BE AFFORDED THE SAME RIGHT TO APPEAL THEIR
CONVICTIONS AS IS AFFORDED TO A DEFENDANT WHO HAS AMPLE FUNDS TO PAY
HIS OWN COSTS.  BUT IN GRIFFIN THE COURT STUDIOUSLY AND CAREFULLY
REFRAINED FROM SAYING ONE WORD OR ONE SENTENCE SUGGESTING THAT THE RULE
THERE ANNOUNCED TO CONTROL RIGHTS OF CRIMINAL DEFENDANTS WOULD CONTROL
IN THE QUITE DIFFERENT FIELD OF CIVIL CASES.  AND THERE ARE STRONG
REASONS FOR DISTINGUISHING BETWEEN THE TWO TYPES OF CASES. 

CRIMINAL DEFENDANTS ARE BROUGHT INTO COURT BY THE STATE OR FEDERAL
GOVERNMENT TO DEFEND THEMSELVES AGAINST CHARGES OF CRIME.  THEY GO INTO
COURT KNOWING THAT THEY MAY BE CONVICTED, AND CONDEMNED TO LOSE THEIR
LIVES, THEIR LIBERTY, OR THEIR PROPERTY, AS A PENALTY FOR THEIR
CRIMES.  BECAUSE OF THIS GREAT GOVERNMENTAL POWER THE UNITED STATES
CONSTITUTION HAS PROVIDED SPECIAL PROTECTIONS FOR PEOPLE CHARGED WITH
CRIME.  THEY CANNOT BE CONVICTED UNDER BILLS OF ATTAINDER OR EX POST
FACTO LAWS.  AND NUMEROUS PROVISIONS OF THE BILL OF RIGHTS-- THE RIGHT
TO COUNSEL, THE RIGHT TO BE FREE FROM COERCED CONFESSIONS, AND OTHER
RIGHTS-- SHIELD DEFENDANTS IN STATE COURTS AS WELL AS FEDERAL COURTS. 
SEE, E.G., BENTON V. MARYLAND, 395 U.S. 784 (1969); DUNCAN V.
LOUISIANA, 391 U.S. 145 (1968); MALLOY V. HOGAN, 378 U.S. 1 (1964);
GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963).  WITH ALL OF THESE
PROTECTIONS SAFEGUARDING DEFENDANTS CHARGED BY GOVERNMENT WITH CRIME,
WE QUITE NATURALLY AND QUITE PROPERLY HELD IN GRIFFIN THAT THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES BOTH BARRED ANY DISCRIMINATION IN
CRIMINAL TRIALS AGAINST POOR DEFENDANTS WHO ARE UNABLE TO DEFEND
THEMSELVES AGAINST THE STATE.  HAD WE NOT SO HELD WE WOULD HAVE BEEN
UNFAITHFUL TO THE EXPLICIT COMMANDS OF THE BILL OF RIGHTS, DESIGNED TO
WRAP THE PROTECTIONS OF THE CONSTITUTION AROUND ALL DEFENDANTS UPON
WHOM THE MIGHTY POWERS OF GOVERNMENT ARE HURLED TO PUNISH FOR CRIME. 

CIVIL LAWSUITS, HOWEVER, ARE NOT LIKE GOVERNMENT PROSECUTIONS FOR
CRIME.  CIVIL COURTS ARE SET UP BY GOVERNMENT TO GIVE PEOPLE WHO HAVE
QUARRELS WITH THEIR NEIGHBORS THE CHANCE TO USE A NEUTRAL GOVERNMENTAL
AGENCY TO ADJUST THEIR DIFFERENCES.  IN SUCH CASES THE GOVERNMENT IS
NOT USUALLY INVOLVED AS A PARTY, AND THERE IS NO DEPRIVATION OF LIFE,
LIBERTY, OR PROPERTY AS PUNISHMENT FOR CRIME.  OUR FEDERAL
CONSTITUTION, THEREFORE, DOES NOT PLACE SUCH PRIVATE DISPUTES ON THE
SAME HIGH LEVEL AS IT PLACES CRIMINAL TRIALS AND PUNISHMENT.  THERE IS
CONSEQUENTLY NO NECESSITY, NO REASON, WHY GOVERNMENT SHOULD IN CIVIL
TRIALS BE HAMPERED OR HANDICAPPED BY THE STRICT AND RIGID DUE PROCESS
RULES THE CONSTITUTION HAS PROVIDED TO PROTECT PEOPLE CHARGED WITH
CRIME. 

THIS DISTINCTION BETWEEN CIVIL AND CRIMINAL PROCEEDINGS IS IMPLICIT
IN COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541 (1949), WHERE WE HELD
THAT A STATUTE REQUIRING SOME, BUT NOT ALL, PLAINTIFFS IN STOCKHOLDER
DERIVATIVE ACTIONS TO POST A BOND DID NOT VIOLATE THE DUE PROCESS OR
THE EQUAL PROTECTION CLAUSE.  THE COHEN CASE IS INDISTINGUISHABLE FROM
THE ONE BEFORE US.  IN COHEN, AS HERE, THE STATUTE APPLIED TO
PLAINTIFFS.  IN BOTH SITUATIONS THE LEGAL RELATIONSHIPS INVOLVED ARE
CREATURES OF THE STATE, EXTENSIVELY GOVERNED BY STATE LAW.  THE EFFECT
OF BOTH STATUTES MAY BE TO DETER FRIVOLOUS OR ILL-CONSIDERED SUITS, AND
IN BOTH INSTANCES THE STATE HAS A CONSIDERABLE INTEREST IN THE
PREVENTION OF SUCH SUITS, WHICH MIGHT HARM THE VERY RELATIONSHIP THE
STATE CREATED AND FOSTERED.  FINALLY, THE EFFECT OF BOTH STATUTES MAY
BE TO CLOSE THE STATE COURTS ENTIRELY TO CERTAIN PLAINTIFFS, A RESULT
THE COURT EXPLICITLY ACCEPTED IN COHEN.  SEE ID., AT 552.  I BELIEVE
THE PRESENT CASE SHOULD BE CONTROLLED BY THE COURT'S THOROUGH OPINION
IN COHEN. 

THE COURT'S SUGGESTED DISTINCTION OF COHEN ON THE GROUND THAT THE
COURT THERE DEALT ONLY WITH THE VALIDITY OF THE STATUTE ON ITS FACE
IGNORES THE FOLLOWING PERTINENT LANGUAGE: 

     "IT IS URGED THAT SUCH A REQUIREMENT WILL FORECLOSE RESORT BY

  MOST STOCKHOLDERS TO THE ONLY AVAILABLE JUDICIAL REMEDY FOR THE

  PROTECTION OF THEIR RIGHTS.  OF COURSE, TO REQUIRE SECURITY FOR

  THE PAYMENT OF ANY KIND OF COSTS, OR THE NECESSITY FOR BEARING

  ANY KIND OF EXPENSE OF LITIGATION, HAS A DETERRING EFFECT.  BUT

  WE DEAL WITH POWER, NOT WISDOM; AND WE THINK, NOTWITHSTANDING

  THIS TENDENCY, IT IS WITHIN THE POWER OF A STATE TO CLOSE ITS

  COURTS TO THIS TYPE OF LITIGATION IF THE CONDITION OF REASONABLE

  SECURITY IS NOT MET."  ID., AT 552. 

RATHER, COHEN CAN ONLY BE DISTINGUISHED ON THE GROUND THAT IT INVOLVED
A STOCKHOLDERS' SUIT, WHILE THIS CASE INVOLVES MARRIAGE, AN INTEREST
"OF BASIC IMPORTANCE IN OUR SOCIETY."  THUS THE COURT'S OPINION APPEARS
TO REST SOLELY ON A PHILOSOPHY THAT ANY LAU VIOLATES DUE PROCESS IF IT
IS UNREASONABLE, ARBITRARY, INDECENT, DEVIATES FROM THE FUNDAMENTAL, IS
SHOCKING TO THE CONSCIENCE, OR FAILS TO MEET OTHER TESTS COMPOSED OF
SIMILAR WORDS OR PHRASES EQUALLY LACKING IN ANY POSSIBLE CONSTITUTIONAL
PRECISION.  THESE CONCEPTS, OF COURSE, MARK NO CONSTITUTIONAL
BOUNDARIES AND CANNOT POSSIBLY DEPEND UPON ANYTHING BUT THE BELIEF OF
PARTICULAR JUDGES, AT PARTICULAR TIMES, CONCERNING PARTICULAR INTERESTS
WHICH THOSE JUDGES HAVE DIVINED TO BE OF "BASIC IMPORTANCE." 

I DO NOT BELIEVE THE WISE MEN WHO SOUGHT TO DRAW A WRITTEN
CONSTITUTION TO PROTECT THE PEOPLE FROM GOVERNMENTAL HARASSMENT AND
OPPRESSION, WHO FEARED ALIKE THE KING AND THE KING'S JUDGES, WOULD HAVE
USED ANY SUCH WORDS OR PHRASES.  SUCH UNBOUNDED AUTHORITY IN ANY GROUP
OF POLITICALLY APPOINTED OR ELECTED JUDGES WOULD UNQUESTIONABLY BE
SUFFICIENT TO CLASSIFY OUR NATION AS A GOVERNMENT OF MEN, NOT THE
GOVERNMENT OF LAWS OF WHICH WE BOAST.  WITH A "SHOCK THE CONSCIENCE"
TEST OF CONSTITUTIONALITY, CITIZENS MUST GUESS WHAT IS THE LAW, GUESS
WHAT A MAJORITY OF NINE JUDGES WILL BELIEVE FAIR AND REASONABLE.  SUCH
A TEST WILFULLY THROWS AWAY THE CERTAINTY AND SECURITY THAT LIES IN A
WRITTEN CONSTITUTION, ONE THAT DOES NOT ALTER WITH A JUDGE'S HEALTH,
BELIEF, OR HIS POLITICS.  I BELIEVE THE ONLY WAY TO STEER THIS COUNTRY
TOWARDS ITS GREAT DESTINY IS TO FOLLOW WHAT OUR CONSTITUTION SAYS, NOT
WHAT JUDGES THINK IT SHOULD HAVE SAID.     FOR THESE REASONS I AM
CONSTRAINED TO REPEAT WHAT I SAID IN DISSENT IN WILLIAMS V. NORTH
CAROLINA, 325 U.S. 226, 271-274 (1945): 

     "I CANNOT AGREE TO THIS LATEST EXPANSION OF FEDERAL POWER AND

  THE CONSEQUENT DIMINUTION OF STATE POWER OVER MARRIAGE AND

  MARRIAGE DISSOLUTION WHICH THE COURT DERIVES FROM ADDING A NEW

  CONTENT TO THE DUE PROCESS CLAUSE.  THE ELASTICITY OF THAT CLAUSE

  NECESSARY TO JUSTIFY THIS HOLDING IS FOUND, I SUPPOSE, IN THE

  NOTION THAT IT WAS INTENDED TO GIVE THIS COURT UNLIMITED

  AUTHORITY TO SUPERVISE ALL ASSERTIONS OF STATE AND FEDERAL POWER

  TO SEE THAT THEY COMPORT WITH OUR IDEAS OF WHAT ARE 'CIVILIZED

STANDARDS OF LAW' . . . .

        .          .  .          . 

     " . . . THIS PERHAPS IS IN KEEPING WITH THE IDEA THAT THE DUE

  PROCESS CLAUSE IS A BLANK SHEET OF PAPER PROVIDED FOR COURTS TO

  MAKE CHANGES IN THE CONSTITUTION AND THE BILL OF RIGHTS IN

  ACCORDANCE WITH THEIR IDEAS OF CIVILIZATION'S DEMANDS.  I SHOULD

  LEAVE THE POWER OVER DIVORCES IN THE STATES." 

SEE ALSO IN RE WINSHIP, 397 U.S. 358, 377 (1970) (BLACK, J.,
DISSENTING). 

ONE MORE THOUGHT ABOUT THE DUE PROCESS AND EQUAL PROTECTION CLAUSES:
NEITHER, IN MY JUDGMENT, JUSTIFIES JUDGES IN TRYING TO MAKE OUR
CONSTITUTION FIT THE TIMES, OR HOLD LAWS CONSTITUTIONAL OR NOT ON THE
BASIS OF A JUDGE'S SENSE OF FAIRNESS.  THE EQUAL PROTECTION CLAUSE IS
NO MORE APPROPRIATE A VEHICLE FOR THE ,SHOCK THE CONSCIENCE" TEST THAN
IS THE DUE PROCESS CLAUSE.  SEE, E.G., MY DISSENT IN HARPER V. VIRGINIA
BOARD OF ELECTIONS, 383 U.S. 663, 675-680 (1966).  THE RULES SET OUT IN
THE CONSTITUTION ITSELF PROVIDE WHAT IS GOVERNMENTALLY FAIR AND WHAT IS
NOT.  NEITHER DUE PROCESS NOR EQUAL PROTECTION PERMITS STATE LAWS TO BE
INVALIDATED ON ANY SUCH NONCONSTITUTIONAL STANDARD AS A JUDGE'S
PERSONAL VIEW OF FAIRNESS.  THE PEOPLE AND THEIR ELECTED
REPRESENTATIVES, NOT JUDGES, ARE CONSTITUTIONALLY VESTED WITH THE POWER
TO AMEND THE CONSTITUTION.  JUDGES SHOULD NOT USURP THAT POWER IN ORDER
TO PUT OVER THEIR OWN VIEWS.  ACCORDINGLY, I WOULD AFFIRM THIS CASE. 

ARTHUR B. LAFRANCE REARGUED THE CAUSE AND FILED BRIEFS FOR
APPELLANTS. 

RAYMOND J. CANNON, ASSISTANT ATTORNEY GENERAL OF CONNECTICUT,
REARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE ROBERT K.
KILLIAN, ATTORNEY GENERAL, AND WILLIAM S. KAPLAN. 

ALLAN ASHMAN FILED A BRIEF FOR THE NATIONAL LEGAL AID AND DEFENDER
ASSOCIATION AS AMICUS CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY FRANCIS B.
BURCH, ATTORNEY GENERAL OF MARYLAND, AND J. MICHAEL MCWILLIAMS,
ASSISTANT ATTORNEY GENERAL, JOINED BY GEORGE F. KUGLER, JR., ATTORNEY
GENERAL OF NEW JERSEY, AND STEPHEN SKILLMAN, ASSISTANT ATTORNEY
GENERAL, AND BY THE FOLLOWING ATTORNEYS GENERAL:  DAVID P. BUCKSON OF
DELAWARE, JACK P. F. GREMILLION OF LOUISIANA, CLARENCE A. H. MEYER OF
NEBRASKA, HARVEY DICKERSON OF NEVADA, HELGI JOHANNESON OF NORTH DAKOTA,
AND LEE JOHNSON OF OREGON. 
..END :









TATE V. SHORT, 401 U.S. 395 


       TATE V. SHORT

        CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS

        NO. 324.  ARGUED JANUARY 14, 1971-- DECIDED MARCH 2, 1971 


PETITIONER, AN INDIGENT, WAS CONVICTED OF TRAFFIC OFFENSES AND FINED
A TOTAL OF $425.  THOUGH TEXAS LAW PROVIDES ONLY FOR FINES FOR SUCH
OFFENSES, IT REQUIRES THAT PERSONS UNABLE TO PAY MUST BE INCARCERATED
FOR SUFFICIENT TIME TO SATISFY THEIR FINES, AT THE RATE OF $5 PER DAY,
WHICH IN PETITIONER'S CASE MEANT AN 85-DAY TERM.  THE STATE COURTS
DENIED HIS PETITION FOR HABEAS CORPUS.  HELD:  IT IS A DENIAL OF EQUAL
PROTECTION TO LIMIT PUNISHMENT TO PAYMENT OF A FINE FOR THOSE WHO ARE
ABLE TO PAY IT BUT TO CONVERT THE FINE TO IMPRISONMENT FOR THOSE WHO
ARE UNABLE TO PAY IT.  WILLIAMS V. ILLINOIS, 399 U.S. 235.  PP.397
401. 

445 S.W.2D 210, REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  BLACKMUN, J., FILED A CONCURRING STATEMENT, POST, P. 401. 
BLACK, J., CONCURRED IN THE RESULT.  HARLAN, J., FILED A STATEMENT
CONCURRING IN THE JUDGMENT, POST, P. 401. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER ACCUMULATED FINES OF $425 ON NINE CONVICTIONS IN THE
CORPORATION COURT OF HOUSTON, TEXAS, FOR TRAFFIC OFFENSES.  HE WAS
UNABLE TO PAY THE FINES BECAUSE OF INDIGENCY /1/  AND THE CORPORATION
COURT, WHICH OTHERWISE HAS NO JURISDICTION TO IMPOSE PRISON SENTENCES,
/2/  COMMITTED HIM TO THE MUNICIPAL PRISON FARM ACCORDING TO THE
PROVISIONS OF A STATE STATUTE AND MUNICIPAL ORDINANCE /3/  WHICH
REQUIRED THAT HE REMAIN THERE A SUFFICIENT TIME TO SATISFY THE FINES AT
THE RATE OF FIVE DOLLARS FOR EACH DAY; THIS REQUIRED THAT HE SERVE 85
DAYS AT THE PRISON FARM.  AFTER 21 DAYS IN CUSTODY, PETITIONER WAS
RELEASED ON BOND WHEN HE APPLIED TO THE COUNTY CRIMINAL COURT OF HARRIS
COUNTY FOR A WRIT OF HABEAS CORPUS.  HE ALLEGED THAT:  "BECAUSE I AM
TOO POOR, I AM, THEREFORE, UNABLE TO PAY THE ACCUMULATED FINE OF
$425."  THE COUNTY COURT HELD THAT "LEGAL CAUSE HAS BEEN SHOWN FOR THE
IMPRISONMENT," AND DENIED THE APPLICATION.  THE COURT OF CRIMINAL
APPEALS OF TEXAS AFFIRMED, STATING:  "WE OVERRULE APPELLANT'S
CONTENTION THAT BECAUSE HE IS TOO POOR TO PAY THE FINES HIS
IMPRISONMENT IS UNCONSTITUTIONAL."  445 S.W.2D 210 (1969).  WE GRANTED
CERTIORARI, 399 U.S. 925 (1970).  WE REVERSE ON THE AUTHORITY OF OUR
DECISION IN WILLIAMS V. ILLINOIS, 399 U.S. 235 (1970). 

THE ILLINOIS STATUTE INVOLVED IN WILLIAMS AUTHORIZED BOTH A FINE AND
IMPRISONMENT.  WILLIAMS WAS GIVEN THE MAXIMUM SENTENCE FOR PETTY THEFT
OF ONE YEAR'S IMPRISONMENT AND A $500 FINE, PLUS $5 IN COURT COSTS. 
THE JUDGMENT, AS PERMITTED BY THE ILLINOIS STATUTE, PROVIDED THAT IF,
WHEN THE ONE-YEAR SENTENCE EXPIRED, WILLIAMS DID NOT PAY THE FINE AND
COURT COSTS, HE WAS TO REMAIN IN JAIL A SUFFICIENT LENGTH OF TIME TO
SATISFY THE TOTAL AMOUNT AT THE RATE OF $5 PER DAY.  WE HELD THAT THE
ILLINOIS STATUTE AS APPLIED TO WILLIAMS WORKED AN INVIDIOUS
DISCRIMINATION SOLELY BECAUSE HE WAS TOO POOR TO PAY THE FINE, AND
THEREFORE VIOLATED THE EQUAL PROTECTION CLAUSE. 

ALTHOUGH THE INSTANT CASE INVOLVES OFFENSES PUNISHABLE BY FINES
ONLY, PETITIONER'S IMPRISONMENT FOR NONPAYMENT CONSTITUTES PRECISELY
THE SAME UNCONSTITUTIONAL DISCRIMINATION SINCE, LIKE WILLIAMS,
PETITIONER WAS SUBJECTED TO IMPRISONMENT SOLELY BECAUSE OF HIS
INDIGENCY.  /4/  IN MORRIS V. SCHOONFIELD, 399 U.S. 508, 509 (1970),
FOUR MEMBERS OF THE COURT ANTICIPATED THE PROBLEM OF THIS CASE AND
STATED THE VIEW, WHICH WE NOW ADOPT, THAT 

     "THE SAME CONSTITUTIONAL DEFECT CONDEMNED IN WILLIAMS ALSO

INHERES IN JAILING AN INDIGENT FOR FAILING TO MAKE IMMEDIATE

  PAYMENT OF ANY FINE, WHETHER OR NOT THE FINE IS ACCOMPANIED BY A

  JAIL TERM AND WHETHER OR NOT THE JAIL TERM OF THE INDIGENT

  EXTENDS BEYOND THE MAXIMUM TERM THAT MAY BE IMPOSED ON A PERSON

  WILLING AND ABLE TO PAY A FINE.  IN EACH CASE, THE CONSTITUTION

  PROHIBITS THE STATE FROM IMPOSING A FINE AS A SENTENCE AND THEN

  AUTOMATICALLY CONVERTING IT INTO A JAIL TERM SOLELY BECAUSE THE

  DEFENDANT IS INDIGENT AND CANNOT FORTHWITH PAY THE FINE IN

  FULL." 

OUR OPINION IN WILLIAMS STATED THE PREMISE OF THIS CONCLUSION IN
SAYING THAT "THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES THAT THE STATUTORY CEILING PLACED ON IMPRISONMENT FOR ANY
SUBSTANTIVE OFFENSE BE THE SAME FOR ALL DEFENDANTS IRRESPECTIVE OF
THEIR ECONOMIC STATUS."  399 U.S.,AT 244.  SINCE TEXAS HAS LEGISLATED A
"FINES ONLY" POLICY FOR TRAFFIC OFFENSES, THAT STATUTORY CEILING
CANNOT, CONSISTENTLY WITH THE EQUAL PROTECTION CLAUSE, LIMIT THE
PUNISHMENT TO PAYMENT OF THE FINE IF ONE IS ABLE TO PAY IT, YET CONVERT
THE FINE INTO A PRISON TERM FOR AN INDIGENT DEFENDANT WITHOUT THE MEANS
TO PAY HIS FINE.  IMPRISONMENT IN SUCH A CASE IS NOT IMPOSED TO FURTHER
ANY PENAL OBJECTIVE OF THE STATE.  IT IS IMPOSED TO AUGMENT THE STATE'S
REVENUES BUT OBVIOUSLY DOES NOT SERVE THAT PURPOSE; THE DEFENDANT
CANNOT PAY BECAUSE HE IS INDIGENT AND HIS IMPRISONMENT, RATHER THAN
AIDING COLLECTION OF THE REVENUE, SADDLES THE STATE WITH THE COST OF
FEEDING AND HOUSING HIM FOR THE PERIOD OF HIS IMPRISONMENT. 

THERE ARE, HOWEVER, OTHER ALTERNATIVES TO WHICH THE STATE MAY
CONSTITUTIONALLY RESORT TO SERVE ITS CONCEDEDLY VALID INTEREST IN
ENFORCING PAYMENT OF FINES.  WE REPEAT OUR OBSERVATION IN WILLIAMS IN
THAT REGARD, 399 U.S.,AT 244-245 (FOOTNOTES OMITTED): 

     "THE STATE IS NOT POWERLESS TO ENFORCE JUDGMENTS AGAINST THOSE

  FINANCIALLY UNABLE TO PAY A FINE; INDEED, A DIFFERENT RESULT

  WOULD AMOUNT TO INVERSE DISCRIMINATION SINCE IT WOULD ENABLE AN

  INDIGENT TO AVOID BOTH THE FINE AND IMPRISONMENT FOR NONPAYMENT

  WHEREAS OTHER DEFENDANTS MUST ALWAYS SUFFER ONE OR THE OTHER

CONVICTION. 

     "IT IS UNNECESSARY FOR US TO CANVASS THE NUMEROUS ALTERNATIVES

  TO WHICH THE STATE BY LEGISLATIVE ENACTMENT-- OR JUDGES WITHIN

  THE SCOPE OF THEIR AUTHORITY-- MAY RESORT IN ORDER TO AVOID

  IMPRISONING AN INDIGENT BEYOND THE STATUTORY MAXIMUM FOR

  INVOLUNTARY NONPAYMENT OF A FINE OR COURT COSTS.  APPELLANT HAS

  SUGGESTED SEVERAL PLANS, SOME OF WHICH ARE ALREADY UTILIZED IN

  SOME STATES, WHILE OTHER RESEMBLE THOSE PROPOSED BY VARIOUS

STUDIES.  THE STATE IS FREE TO CHOOSE FROM AMONG THE VARIETY OF

  SOLUTIONS ALREADY

PROPOSED AND, OF COURSE, IT MAY DEVISE NEW ONES."  /5/ 

WE EMPHASIZE THAT OUR HOLDING TODAY DOES NOT SUGGEST ANY
CONSTITUTIONAL INFIRMITY IN IMPRISONMENT OF A DEFENDANT WITH THE MEANS
TO PAY A FINE WHO REFUSES OR NEGLECTS TO DO SO.  NOR IS OUR DECISION TO
BE UNDERSTOOD AS PRECLUDING IMPRISONMENT AS AN ENFORCEMENT METHOD WHEN
ALTERNATIVE MEANS ARE UNSUCCESSFUL DESPITE THE DEFENDANT'S REASONABLE
EFFORTS TO SATISFY THE FINES BY THOSE MEANS; THE DETERMINATION OF THE
CONSTITUTIONALITY OF IMPRISONMENT IN THAT CIRCUMSTANCE MUST AWAIT THE
PRESENTATION OF A CONCRETE CASE. 

THE JUDGMENT OF THE COURT OF CRIMINAL APPEALS OF TEXAS IS REVERSED
AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 

/1/  AT THE HABEAS CORPUS HEARING THE ASSISTANT DISTRICT ATTORNEY
APPEARING FOR THE STATE STIPULATED:  "WE WOULD STIPULATE HE IS POVERTY
STRICKEN, AND THAT HIS WHOLE FAMILY HAS BEEN FOR ALL PERIODS OF TIME
THEREIN, AND PROBABLY ALWAYS WILL BE."  PETITIONER'S UNCONTRADICTED
TESTIMONY AT THE HEARING WAS THAT, PRIOR TO HIS IMPRISONMENT, HE EARNED
BETWEEN $25 AND $60 A WEEK IN CASUAL EMPLOYMENT.  HE ALSO RECEIVED A
MONTHLY VETERANS ADMINISTRATION CHECK OF $104.  HE HAS A WIFE AND TWO
CHILDREN DEPENDENT ON HIM FOR SUPPORT.  WE WERE ADVISED ON ORAL
ARGUMENT THAT UNDER TEXAS LAW HIS AUTOMOBILE WAS NOT SUBJECT TO
EXECUTION TO COLLECT THE FINES. 

/2/  TEX. CODE CRIM. PROC., ART. 4.14 (1966) PROVIDES: 

"THE CORPORATION COURT IN EACH INCORPORATED CITY, TOWN OR VILLAGE OF
THIS STATE SHALL HAVE JURISDICTION WITHIN THE CORPORATE LIMITS IN ALL
CRIMINAL CASES ARISING UNDER THE ORDINANCES OF SUCH CITY, TOWN OR
VILLAGE, AND SHALL HAVE CONCURRENT JURISDICTION WITH ANY JUSTICE OF THE
PEACE IN ANY PRECINCT IN WHICH SAID CITY, TOWN OR VILLAGE IS SITUATED
IN ALL CRIMINAL CASES ARISING UNDER THE CRIMINAL LAWS OF THIS STATE, IN
WHICH PUNISHMENT IS BY FINE ONLY, AND WHERE THE MAXIMUM OF SUCH FINE
MAY NOT EXCEED TWO HUNDRED DOLLARS, AND ARISING WITHIN SUCH CORPORATE
LIMITS." 

/3/  TEX. CODE CRIM. PROC., ART. 45.53 (1966), PROVIDES IN PERTINENT
PART: 

"A DEFENDANT PLACED IN JAIL ON ACCOUNT OF FAILURE TO PAY THE FINE
AND COSTS CAN BE DISCHARGED ON HABEAS CORPUS BY SHOWING: 

"1.  THAT HE IS TOO POOR TO PAY THE FINE AND COSTS; AND 

"2.  THAT HE HAS REMAINED IN JAIL A SUFFICIENT LENGTH OF TIME TO
SATISFY THE FINE AND COSTS, AT THE RATE OF $5 FOR EACH DAY." 

HOUSTON CODE SEC. 35-8 PROVIDES: 

"EACH PERSON COMMITTED TO THE COUNTY JAIL OR TO THE MUNICIPAL PRISON
FARM FOR NON-PAYMENT OF THEIR FINE ARISING OUT OF HIS CONVICTION OF A
MISDEMEANOR IN THE CORPORATION COURT SHALL RECEIVE A CREDIT AGAINST
SUCH FINE OF FIVE DOLLARS ($5.00) FOR EACH DAY OR FRACTION OF A DAY
THAT HE HAS SERVED." 

/4/  HOUSTON CODE SEC. 35-9 PROVIDES: 

"(ADDITIONAL CREDIT AGAINST THE FINE OF EACH PRISONER MAY BE GRANTED
BY THE SUPERINTENDENT OF THE MUNICIPAL PRISON FARM FOR GOOD CONDUCT,
INDUSTRY AND OBEDIENCE; PROVIDED, HOWEVER, THAT SUCH ADDITIONAL CREDIT
SHALL NOT EXCEED IN TIME MORE THAN ONE-HALF (1/2) DAY CREDIT ON HIS
FINE FOR EACH DAY'S WORK." 

AN IMPLEMENTING REGULATION OF THE FINES BUREAU DIVISION OF THE
HOUSTON CORPORATION COURT INTERPRETS THIS PROVISION AS FOLLOWS: 

"IF A PERSON APPEARS IN COURT AND IS FOUND GUILTY AND DOES NOT HAVE
MONEY TO PAY HIS FINE, HE IS COMMITTED TO JAIL TO SERVE THE AMOUNT OF
THE FINE AT THE RATE OF $5.00 PER DAY.  IN CERTAIN CASES A PERSON MAY
BE ALLOWED $7.50 PER DAY." 

IT DOES NOT APPEAR THAT PETITIONER WAS GRANTED THE INCREASED CREDIT
FOR ANY OF THE 21 DAYS HE SERVED BEFORE HIS RELEASE. 

/5/  SEVERAL STATES HAVE A PROCEDURE FOR PAYING FINES IN
INSTALLMENTS.  E.G., CAL. PENAL CODE SEC. 1205 (1970) (MISDEMEANORS);
DEL. CODE ANN., TIT. 11, SEC. 4332(C) (SUPP. 1968); MD. ANN. CODE, ART.
38, SEC. 4(A)(2) (SUPP. 1970); MASS. GEN. LAWS ANN., C. 279, SEC. 1A
(1959); N.Y. CODE CRIM. PROC. SEC. 470-D(1)(B) (SUPP. 1970); PA. STAT.
ANN., TIT. 19, SEC. 953 (1964); WASH. REV. CODE SEC. 9.92.070. 

THIS PROCEDURE HAS BEEN WIDELY ENDORSED AS EFFECTIVE NOT ONLY TO
COLLECT THE FINE BUT ALSO TO SAVE THE EXPENSE OF MAINTAINING A PRISONER
AND AVOID THE NECESSITY OF SUPPORTING HIS FAMILY UNDER THE STATE
WELFARE PROGRAM WHILE HE IS CONFINED.  SEE, E.G., FINAL REPORT OF THE
NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, PROPOSED NEW
FEDERAL CRIMINAL CODE SEC. 3302(2) (1971); AMERICAN BAR ASSOCIATION,
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, SENTENCING ALTERNATIVES AND
PROCEDURES SEC. 2.7(B), PP. 119-122 (APPROVED DRAFT 1968); PRESIDENT'S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE
REPORT:  THE COURTS 18 (1967); ALI, MODEL PENAL CODE SEC. 302.1(1)
(PROPOSED OFFICIAL DRAFT 1962).  SEE ALSO COMMENT, EQUAL PROTECTION AND
THE USE OF FINES AS PENALTIES FOR CRIMINAL OFFENSES, 1966 U.ILL.L.F.
460; NOTE, THE EQUAL PROTECTION CLAUSE AND IMPRISONMENT OF THE INDIGENT
FOR NONPAYMENT OF FINES, 64 MICH.L.REV.  938 (1966); NOTE, IMPRISONMENT
FOR NONPAYMENT OF FINES AND COSTS:  A NEW LOOK AT THE LAW AND THE
CONSTITUTION, 22 VAND.L.REV.  611 (1969); NOTE, FINES AND FINING-AN
LEGISLATION IN SWEDEN 14 (1947); CORDES, FINES AND THEIR ENFORCEMENT, 2
J.CRIM.SCI.  46 (1950); S. RUBIN, H. WEIHOFEN, G. EDWARDS, & S.
ROSENZWEIG, THE LAW OF CRIMINAL CORRECTION 253 AND N. 154 (1963); E.
SUTHERLAND & D. CRESSEY, PRINCIPLES OF CRIMINOLOGY 276 (6TH ED. 1960). 
SEE ALSO WILLIAMS V. ILLINOIS, 399 U.S.,AT 244-245, N. 21. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN CONCURS IN THE JUDGMENT OF THE COURT ON THE BASIS
OF THE CONSIDERATIONS SET FORTH IN HIS OPINION CONCURRING IN THE RESULT
IN WILLIAMS V. ILLINOIS, 399 U.S. 235, 259 (1970). 

MR. JUSTICE BLACKMUN, CONCURRING. 

THE COURT'S OPINION IS COUCHED IN TERMS OF BEING CONSTITUTIONALLY
PROTECTIVE OF THE INDIGENT DEFENDANT.  I MERELY ADD THE OBSERVATION
THAT THE REVERSAL OF THIS TEXAS JUDGMENT MAY WELL ENCOURAGE STATE AND
MUNICIPAL LEGISLATURES TO DO AWAY WITH THE FINE AND TO HAVE THE JAIL
TERM AS THE ONLY PUNISHMENT FOR A BROAD RANGE OF TRAFFIC OFFENSES. 
ELIMINATING THE FINE WHENEVER IT IS PRESCRIBED AS ALTERNATIVE
PUNISHMENT AVOIDS THE EQUAL PROTECTION ISSUE THAT INDIGENCY OCCASIONS
AND LEAVES ONLY POSSIBLE EIGHTH AMENDMENT CONSIDERATIONS.  IF, AS A
NATION, WE EVER REACH THAT HAPPY POINT WHERE WE ARE WILLING TO SET OUR
PERSONAL CONVENIENCE TO ONE SIDE AND WE ARE REALLY SERIOUS ABOUT
RESOLVING THE PROBLEMS OF TRAFFIC IRRESPONSIBILITY AND THE FRIGHTFUL
CARNAGE IT SPEWS UPON OUR HIGHWAYS, A DEVELOPMENT OF THAT KIND MAY NOT
BE AT ALL UNDESIRABLE. 

NORMAN DORSEN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE PETER SANCHEZ-NAVARRO, JR., AND STANLEY A. BASS. 

JOSEPH G. ROLLINS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE,
FIRST ASSISTANT ATTORNEY GENERAL, ALFRED WALKER, EXECUTIVE ASSISTANT
ATTORNEY GENERAL, AND ROBERT C. FLOWERS AND GILBERT J. PENA, ASSISTANT
ATTORNEYS GENERAL. 

ALLAN ASHMAN FILED A BRIEF FOR THE NATIONAL LEGAL AID AND DEFENDER
ASSOCIATION AS AMICUS CURIAE URGING REVERSAL. 
..END :














CITIZENS TO PRESERVE OVERTON PARK V. VOLPE, 401 U.S. 402 


       CITIZENS TO PRESERVE OVERTON PARK, INC., ET AL. V. VOLPE,

           SECRETARY OF TRANSPORTATION, ET AL.

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 1066.  ARGUED JANUARY 11, 1971-- DECIDED MARCH 2, 1971 


UNDER SEC. 4(F) OF THE DEPARTMENT OF TRANSPORTATION ACT OF 1966 AND
SEC. 138 OF THE FEDERAL-AID HIGHWAY ACT OF 1968, THE SECRETARY OF
TRANSPORTATION MAY NOT AUTHORIZE USE OF FEDERAL FUNDS TO FINANACE
CONSTRUCTION OF HIGHWAYS THROUGH PUBLIC PARKS IF A "FEASIBLE AND
PRUDENT" ALTERNATIVE ROUTE EXISTS.  IF NO SUCH ROUTE IS AVAILABLE, HE
MAY APPROVE CONSTRUCTION ONLY IF THERE HAS BEEN "ALL POSSIBLE PLANNING
TO MINIMIZE HARM" TO THE PARK.  PETITIONERS CONTEND THAT THE SECRETARY
ANNOUNCED THAT HE AGREED WITH THE LOCAL OFFICIALS THAT THE HIGHWAY GO
THROUGH THE PARK; IN SEPTEMBER 1969 THE STATE ACQUIRED THE RIGHT-OF-WAY
INSIDE THE PARK; AND IN NOVEMBER 1969 THE SECRETARY ANNOUNCED FINAL
APPROVAL, INCLUDING THE DESIGN, OF THE ROAD.  NEITHER ANNOUNCEMENT OF
THE SECRETARY WAS ACCOMPANIED BY FACTUAL FINDINGS.  RESPONDENTS
INTRODUCED AFFIDAVITS IN THE DISTRICT COURT, INDICATING THAT THE
SECRETARY HAD MADE THE DECISION AND THAT IT WAS SUPPORTABLE. 
PETITIONERS FILED COUNTER HIGHWAY ADMINISTRATOR.  THE DISTRICT COURT
AND THE COURT OF APPEALS FOUND THAT FORMAL FINDINGS WERE NOT REQUIRED
AND REFUSED TO ORDER THE DEPOSITION OF THE FORMER ADMINISTRATOR.  BOTH
COURTS HELD THAT THE AFFIDAVITS AFFORDED NO BASIS FOR DETERMINING THAT
THE SECRETARY EXCEEDED HIS AUTHORITY.  HELD: 

1.  THE SECRETARY'S ACTION IS SUBJECT TO JUDICIAL REVIEW PURSUANT TO
SEC. 701 OF THE ADMINISTRATIVE PROCEDURE ACT.  PP. 409-413. 

(A) THERE IS NO INDICATION HERE THAT CONGRESS SOUGHT TO LIMIT OR
PROHIBIT JUDICIAL REVIEW.  P. 410. 

(B) THE EXEMPTION FOR ACTION "COMMITTED TO AGENCY DISCRETION" DOES
NOT APPLY AS THE SECRETARY DOES HAVE "LAW TO APPLY," RATHER THAN WIDE
RANGING DISCRETION.  PP. 410-413. 

2. ALTHOUGH UNDER SEC. 706 OF THE ACT DE NOVO REVIEW IS NOT REQUIRED
HERE AND THE SECRETARY'S APPROVAL OF THE ROUTE NEED NOT MEET THE
SUBSTANTIAL-EVIDENCE TEST, THE REVIEWING COURT MUST CONDUCT A
SUBSTANTIAL INQUIRY AND DETERMINE WHETHER THE SECRETARY ACTED WITHIN
THE SCOPE OF HIS AUTHORITY, WHETHER HIS DECISION WAS WITHIN THE SMALL
RANGE OF AVAILABLE CHOICES, AND WHETHER HE COULD HAVE REASONABLY
BELIEVED THAT THERE WERE NO FEASIBLE ALTERNATIVES.  THE COURT MUST FIND
THAT THE ACTUAL CHOICE WAS NOT "ARBITRARY, CAPRICIOUS, AN ABUSE OF
DISCRETION, OR OTHERWISE NOT IN ACCORDANCE WITH LAW," AND THAT THE
SECRETARY FOLLOWED THE NECESSARY PROCEDURAL REQUIREMENTS.  PP. 413
416. 

3.  FORMAL FINDINGS BY THE SECRETARY ARE NOT REQUIRED IN THIS CASE. 
PP. 417-419. 

(A) THE RELEVANT STATUTES DO NOT REQUIRE FORMAL FINDINGS, AND THERE
IS NO AMBIGUITY IN THE SECRETARY'S ACTION.  P. 417. 

(B) ALTHOUGH A REGULATION REQUIRING FORMAL FINDINGS WAS ISSUED AFTER
THE SECRETARY HAD APPROVED THE ROUTE, A REMAND TO HIM IS NOT NECESSARY
AS THERE IS AN ADMINISTRATIVE RECORD FACILITATING FULL AND PROMPT
REVIEW OF THE SECRETARY'S ACTION.  PP. 417-419. 

4.  THE CASE IS REMANDED TO THE DISTRICT COURT FOR PLENARY REVIEW OF
THE SECRETARY'S DECISION.  PP. 419-420. 

(A) THE LOWER COURTS' REVIEW WAS BASED ON LITIGATION AFFIDAVITS,
WHICH ARE NOT THE WHOLE RECORD AND ARE AN INADEQUATE BASIS FOR REVIEW. 
P. 419. 

(B) IN VIEW OF THE LACK OF FORMAL FINDINGS, THE COURT MAY REQUIRE
THE ADMINISTRATIVE OFFICIALS WHO PARTICIPATED IN THE DECISION TO GIVE
TESTIMONY EXPLAINING THEIR ACTION OR REQUIRE THE SECRETARY TO MAKE
FORMAL FINDINGS.  P. 420. 

432 F.2D 1307, REVERSED AND REMANDED. 

MARSHALL, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND HARLAN, STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  BLACK, J.,
FILED A SEPARATE OPINION, IN WHICH BRENNAN, J., JOINED, POST, P. 421. 
BLACKMUN, J., FILED A SEPARATE, POST, P. 422.  DOUGLAS, J., TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

OPINION OF THE COURT BY MR. JUSTICE MARSHALL, ANNOUNCED BY MR.
JUSTICE STEWART. 

THE GROWING PUBLIC CONCERN ABOUT THE QUALITY OF OUR NATURAL
ENVIRONMENT HAS PROMPTED CONGRESS IN RECENT YEARS TO ENACT LEGISLATION
/1/  DESIGNED TO CURB THE ACCELERATING DESTRUCTION OF OUR COUNTRY'S
NATURAL BEAUTY.  WE ARE CONCERNED IN THIS CASE WITH SEC. 4(F) OF THE
DEPARTMENT OF TRANSPORTATION ACT OF 1966, AS AMENDED, /2/  AND SEC.
18(A) OF THE FEDERAL-AID HIGHWAY ACT OF 1968, 82 STAT. 823, 23 U.S.C.
138 (1964 ED., SUPP. V) (HEREAFTER SEC. 138).  /3/  THESE STATUTES
PROHIBIT THE SECRETARY OF TRANSPORTATION FROM AUTHORIZING THE USE OF
FEDERAL FUNDS TO FINANCE THE CONSTRUCTION OF HIGHWAYS THROUGH PUBLIC
PARKS IF A "FEASIBLE AND PRUDENT"  /4/  ALTERNATIVE ROUTE EXISTS.  IF
NO SUCH ROUTE IS AVAILABLE, THE STATUTES ALLOW HIM TO APPROVE
CONSTRUCTION THROUGH PARKS ONLY IF THERE HAS BEEN "ALL POSSIBLE
PLANNING TO MINIMIZE HARM"  /5/  TO THE PARK. 

PETITIONERS, PRIVATE CITIZENS AS WELL AS LOCAL AND NATIONAL
CONSERVATION ORGANIZATIONS, CONTEND THAT THE SECRETARY HAS VIOLATED
THESE STATUTES BY AUTHORIZING THE EXPENDITURE OF FEDERAL FUNDS /6/  FOR
THE CONSTRUCTION OF A SIX-LANE INTERSTATE HIGHWAY THROUGH A PUBLIC PARK
IN MEMPHIS, TENNESSEE.  THEIR CLAIM WAS REJECTED BY THE DISTRICT COURT,
/7/  WHICH GRANTED THE SECRETARY'S MOTION FOR SUMMARY JUDGMENT, AND THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED.  /8/  AFTER ORAL
ARGUMENT, THIS COURT GRANTED A STAY THAT HALTED CONSTRUCTION AND,
TREATING THE APPLICATION FOR THE STAY AS A PETITION FOR CERTIORARI,
GRANTED REVIEW.  /9/  400 U.S. 939.  WE NOW REVERSE THE JUDGMENT BELOW
AND REMAND FOR FURTHER PROCEEDINGS IN THE DISTRICT COURT. 

OVERTON PARK IS A 342-ACRE CITY PARK LOCATED NEAR THE CENTER OF
MEMPHIS.  THE PARK CONTAINS A ZOO, A NINE-HOLE MUNICIPAL GOLF COURSE,
AN OUTDOOR THEATER, NATURE TRAILS, A BRIDLE PATH, AN ART ACADEMY,
PICNIC AREAS, AND 170 ACRES OF FOREST.  THE PROPOSED HIGHWAY, WHICH IS
TO BE A SIX-LANE, HIGH-SPEED, EXPRESSWAY, /10/  WILL SEVER THE ZOO FROM
THE REST OF THE PARK.  ALTHOUGH THE ROADWAY WILL BE DEPRESSED BELOW
GROUND LEVEL EXCEPT WHERE IT CROSSES A SMALL CREEK, 26 ACRES OF THE
PARK WILL BE DESTROYED.  THE HIGHWAY IS TO BE A SEGMENT OF INTERSTATE
HIGHWAY I-40, PART OF THE NATIONAL SYSTEM OF INTERSTATE AND DEFENSE
HIGHWAYS.  /11/  I-40 WILL PROVIDE MEMPHIS WITH A MAJOR EAST-WEST
EXPRESSWAY WHICH WILL ALLOW EASIER ACCESS TO DOWNTOWN MEMPHIS FROM THE
RESIDENTIAL AREAS ON THE EASTERN EDGE OF THE CITY.  /12/ 

ALTHOUGH THE ROUTE THROUGH THE PARK WAS APPROVED BY THE BUREAU OF
PUBLIC ROADS IN 1956 /13/  AND BY THE FEDERAL HIGHWAY ADMINISTRATOR IN
1966, THE ENACTMENT OF SEC. 4(F) OF THE DEPARTMENT OF TRANSPORTATION
ACT PREVENTED DISTRIBUTION OF FEDERAL FUNDS FOR THE SECTION OF THE
HIGHWAY DESIGNATED TO GO THROUGH OVERTON PARK UNTIL THE SECRETARY OF
TRANSPORTATION DETERMINED WHETHER THE REQUIREMENTS OF SEC. 4(F) HAD
BEEN MET.  FEDERAL FUNDING FOR THE REST OF THE PROJECT WAS, HOWEVER,
AVAILABLE; AND THE STATE ACQUIRED A RIGHT-OF-WAY ON BOTH SIDES OF THE
PARK.  /14/  IN APRIL 1968, THE SECRETARY ANNOUNCED THAT HE CONCURRED
IN THE JUDGMENT OF LOCAL OFFICIALS THAT I-40 SHOULD BE BULIT THROUGH
THE PARK.  AND IN SEPTEMBER 1969 THE STATE ACQUIRED THE RIGHT-OF-WAY
INSIDE OVERTON PARK FROM THE CITY.  /15/  FINAL APPROVAL FOR THE
PROJECT-- THE ROUTE AS WELL AS THE DESIGN-- WAS NOT ANNOUNCED UNTIL
NOVEMBER 1969, AFTER CONGRESS HAD REITERATED IN SEC. 138 OF THE FEDERAL
AID HIGHWAY ACT THAT HIGHWAY CONSTRUCTION THROUGH PUBLIC PARKS WAS TO
BE RESTRICTED.  NEITHER ANNOUNCEMENT APPROVING THE ROUTE AND DESIGN OF
I-40 WAS ACCOMPANIED BY A STATEMENT OF THE SECRETARY'S FACTUAL
FINDINGS.  HE DID NOT INDICATE WHY HE BELIEVED THERE WERE NO FEASIBLE
AND PRUDENT ALTERNATIVE ROUTES OR WHY DESIGN CHANGES COULD NOT BE MADE
TO REDUCE THE HARM TO THE PARK. 

PETITIONERS CONTEND THAT THE SECRETARY'S ACTION IS INVALID WITHOUT
SUCH FORMAL FINDINGS /16/  AND THAT THE SECRETARY DID NOT MAKE AN
INDEPENDENT DETERMINATION BUT MERELY RELIED ON THE JUDGMENT OF THE
MEMPHIS CITY COUNCIL.  /17/  THEY ALSO CONTEND THAT IT WOULD BE
"FEASIBLE AND PRUDENT" TO ROUTE I-40 AROUND OVERTON PARK EITHER TO THE
NORTH OR TO THE SOUTH.  AND THEY ARGUE THAT IF THESE ALTERNATIVE ROUTES
ARE NOT "FEASIBLE AND PRUDENT," THE PRESENT PLAN DOES NOT INCLUDE "ALL
POSSIBLE" METHODS FOR REDUCING HARM TO THE PARK.  PETITIONERS CLAIM
THAT I-40 COULD BE BUILT UNDER THE PARK BY USING EITHER OF TWO POSSIBLE
TUNNELING METHODS, /18/  AND THEY CLAIM THAT, AT A MINIMUM, BY USING
ADVANCED DRAINAGE TECHNIQUES /19/  THE EXPRESSWAY COULD BE DEPRESSED
BELOW GROUND LEVEL ALONG THE ENTIRE ROUTE THROUGH THE PARK INCLUDING
THE SECTION THAT CROSSES THE SMALL CREEK. 

RESPONDENTS ARGUE THAT IT WAS UNNECESSARY FOR THE SECRETARY TO MAKE
FORMAL FINDINGS, AND THAT HE DID, IN FACT, EXERCISE HIS OWN INDEPENDENT
JUDGMENT WHICH WAS SUPPORTED BY THE FACTS.  IN THE DISTRICT COURT,
RESPONDENTS INTRODUCED AFFIDAVITS, PREPARED SPECIFICALLY FOR THIS
LITIGATION, WHICH INDICATED THAT THE SECRETARY HAD MADE THE DECISION
AND THAT THE DECISION WAS SUPPORTABLE.  THESE AFFIDAVITS WERE
CONTRADICTED BY AFFIDAVITS INTRODUCED BY PETITIONERS, WHO ALSO SOUGHT
TO TAKE THE DEPOSITION OF A FORMER FEDERAL HIGHWAY ADMINISTRATOR /20/
WHO HAD PARTICIPATED IN THE DECISION TO ROUTE I-40 THROUGH OVERTON
PARK. 

THE DISTRICT COURT AND THE COURT OF APPEALS FOUND THAT FORMAL
FINDINGS BY THE SECRETARY WERE NOT NECESSARY AND REFUSED TO ORDER THE
DEPOSITION OF THE FORMER FEDERAL HIGHWAY ADMINISTRATOR BECAUSE THOSE
COURTS BELIEVED THAT PROBING OF THE MENTAL PROCESSES OF AN
ADMINISTRATIVE DECISIONMAKER WAS PROHIBITED.  AND, BELIEVING THAT THE
SECRETARY'S AUTHORITY WAS WIDE AND REVIEWING COURTS' AUTHORITY NARROW
IN THE APPROVAL OF HIGHWAY ROUTES, THE LOWER COURTS HELD THAT THE
AFFIDAVITS CONTAINED NO BASIS FOR A DETERMINATION THAT THE SECRETARY
HAD EXCEEDED HIS AUTHORITY. 

WE AGREE THAT FORMAL FINDINGS WERE NOT REQUIRED.  BUT WE DO NOT
BELIEVE THAT IN THIS CASE JUDICIAL REVIEW BASED SOLELY ON LITIGATION
AFFIDAVITS WAS ADEQUATE. 

A THRESHOLD QUESTION-- WHETHER PETITIONERS ARE ENTITLED TO ANY
JUDICIAL REVIEW-- IS EASILY ANSWERED.  SECTION 701 OF THE
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 701 (1964 ED., SUPP. V),
PROVIDES THAT THE ACTION OF "EACH AUTHORITY OF THE GOVERNMENT OF THE
UNITED STATES," WHICH INCLUDES THE DEPARTMENT OF TRANSPORTATION, /21/
IS SUBJECT TO JUDICIAL REVIEW EXCEPT WHERE THERE IS A STATUTORY
PROHIBITION ON REVIEW OR WHERE "AGENCY ACTION IS COMMITTED TO AGENCY
DISCRETION BY LAW."  IN THIS CASE, THERE IS NO INDICATION THAT CONGRESS
SOUGHT TO PROHIBIT JUDICIAL REVIEW AND THERE IS MOST CERTAINLY NO
"SHOWING OF 'CLEAR AND CONVINCING EVIDENCE' OF A . . . LEGISLATIVE
INTENT" TO RESTRICT ACCESS TO JUDICIAL REVIEW.  ABBOTT LABORATORIES V.
GARDNER, 387 U.S. 136, 141 (1967).  BROWNELL V. WE SHUNG, 352 U.S. 180,
185 (1956).  /22/ 

SIMILARLY, THE SECRETARY'S DECISION HERE DOES NOT FALL WITHIN THE
EXCEPTION FOR ACTION "COMMITTED TO AGENCY DISCRETION."  THIS IS A VERY
NARROW EXCEPTION.  /23/  BERGER, ADMINISTRATIVE ARBITRARINESS AND
JUDICIAL REVIEW, 65 COL.L.REV.  55 (1965).  THE LEGISLATIVE HISTORY OF
THE ADMINISTRATIVE PROCEDURE ACT INDICATES THAT IT IS APPLICABLE IN
THOSE RARE INSTANCES WHERE "STATUTES ARE DRAWN IN SUCH BROAD TERMS THAT
IN A GIVEN CASE THERE IS NO LAW TO APPLY."  S. REP. NO. 752, 79TH
CONG., 1ST SESS., 26 (1945). 

THE FEDERAL-AID HIGHWAY ACT ARE CLEAR AND SPECIFIC DIRECTIVES.  BOTH
THE DEPARTMENT OF TRANSPORTATION ACT AND THE FEDERAL-AID HIGHWAY ACT
PROVIDE THAT THE SECRETARY "SHALL NOT APPROVE ANY PROGRAM OR PROJECT"
THAT REQUIRES THE USE OF ANY PUBLIC PARKLAND "UNLESS (1) THERE IS NO
FEASIBLE AND PRUDENT ALTERNATIVE TO THE USE OF SUCH LAND, AND (2) SUCH
PROGRAM INCLUDES ALL POSSIBLE PLANNING TO MINIMIZE HARM TO SUCH PARK .
. . ."  23 U.S.C. 138 (1964 ED., SUPP. V); 49 U.S.C. 1653(F) (1964 ED.,
SUPP. V).  THIS LANGUAGE IS A PLAIN AND EXPLICIT BAR TO THE USE OF
FEDERAL FUNDS FOR CONSTRUCTION OF HIGHWAYS THROUGH PARKS-- ONLY THE
MOST UNUSUAL SITUATIONS ARE EXEMPTED. 

DESPITE THE CLARITY OF THE STATUTORY LANGUAGE, RESPONDENTS ARGUE
THAT THE SECRETARY HAS WIDE DISCRETION.  THEY RECOGNIZE THAT THE
REQUIREMENT THAT THERE BE NO "FEASIBLE" ALTERNATIVE ROUTE ADMITS OF
LITTLE ADMINISTRATIVE DISCRETION.  FOR THIS EXEMPTION TO APPLY THE
SECRETARY MUST FIND THAT AS A MATTER OF SOUND ENGINEERING IT WOULD NOT
BE FEASIBLE TO BUILD THE HIGHWAY ALONG ANY OTHER ROUTE.  /24/
RESPONDENTS ARGUE, HOWEVER, THAT THE REQUIREMENT THAT THERE BE NO OTHER
"PRUDENT" ROUTE REQUIRES THE SECRETARY TO ENGAGE IN A WIDE-RANGING
BALANCING OF COMPETING INTERESTS.  THEY CONTEND THAT THE SECRETARY
SHOULD WEIGH THE DETRIMENT RESULTING FROM THE DESTRUCTION OF PARKLAND
AGAINST THE COST OF OTHER ROUTES, SAFETY CONSIDERATIONS, AND OTHER
FACTORS, AND DETERMINE ON THE BASIS OF THE IMPORTANCE THAT HE ATTACHES
TO THESE OTHER FACTORS WHETHER, ON BALANCE, ALTERNATIVE FEASIBLE ROUTES
WOULD BE "PRUDENT." 

BUT NO SUCH WIDE-RANGING ENDEAVOR WAS INTENDED.  IT IS OBVIOUS THAT
IN MOST CASES CONSIDERATIONS OF COST, DIRECTNESS OF ROUTE, AND
COMMUNITY DISRUPTION WILL INDICATE THAT PARKLAND SHOULD BE USED FOR
HIGHWAY CONSTRUCTION WHENEVER POSSIBLE.  ALTHOUGH IT MAY BE NECESSARY
TO TRANSFER FUNDS FROM ONE JURISDICTION TO ANOTHER, /25/  THERE WILL
ALWAYS BE A SMALLER OUTLAY REQUIRED FROM THE PUBLIC PURSE /26/  WHEN
PARKLAND IS USED SINCE THE PUBLIC ALREADY OWNS THE LAND AND THERE WILL
BE NO NEED TO PAY FOR RIGHT-OF-WAY.  AND SINCE PEOPLE DO NOT LIVE OR
WORK IN PARKS, IF A HIGHWAY IS BUILT ON PARKLAND NO ONE WILL HAVE TO
LEAVE HIS HOME OR GIVE UP HIS BUSINESS.  SUCH FACTORS ARE COMMON TO
SUBSTANTIALLY ALL HIGHWAY CONSTRUCTION.  THUS, IF CONGRESS INTENDED
THESE FACTORS TO BE ON AN EQUAL FOOTING WITH PRESERVATION OF PARKLAND
THERE WOULD HAVE BEEN NO NEED FOR THE STATUTES. 

CONGRESS CLEARLY DID NOT INTEND THAT COST AND DISRUPTION OF THE
COMMUNITY WERE TO BE IGNORED /27/  BY THE SECRETARY.  /28/  BUT THE
VERY EXISTENCE OF THE STATUTES /29/  INDICATES THAT PROTECTION OF
PARKLAND WAS TO BE GIVEN PARAMOUNT IMPORTANCE.  THE FEW GREEN HAVENS
THAT ARE PUBLIC PARKS WERE NOT TO BE LOST UNLESS THERE WERE TRULY
UNUSUAL FACTORS PRESENT IN A PARTICULAR CASE OR THE COST OR COMMUNITY
DISRUPTION RESULTING FROM ALTERNATIVE ROUTES REACHED EXTRAORDINARY
MAGNITUDES.  IF THE STATUTES ARE TO HAVE ANY MENAING, THE SECRETARY
CANNOT APPROVE THE DESTRUCTION OF PARKLAND UNLESS HE FINDS THAT
ALTERNATIVE ROUTES PRESENT UNIQUE PROBLEMS. 

PLAINLY, THERE IS "LAW TO APPLY" AND THUS THE EXEMPTION FOR ACTION
"COMMITTED TO AGENCY DISCRETION" IS INAPPLICABLE.  BUT THE EXISTENCE OF
JUDICIAL REVIEW IS ONLY THE START:  THE STANDARD FOR REVIEW MUST ALSO
BE DETERMINED.  FOR THAT WE MUST LOOK TO SEC. 706 OF THE ADMINISTRATIVE
PROCEDURE ACT, 5 U.S.C. 706 (1964 ED., SUPP. V), WHICH PROVIDES THAT A
"REVIEWING COURT SHALL . . .HOLD UNLAWFUL AND SET ASIDE AGENCY ACTION,
FINDINGS, AND CONCLUSIONS FOUND" NOT TO MEET SIX SEPARATE STANDARDS. 
/30/  IN ALL CASES AGENCY ACTION MUST BE SET ASIDE IF THE ACTION WAS
"ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, OR OTHERWISE NOT IN
ACCORDANCE WITH LAW" OR IF THE ACTION FAILED TO MEET STATUTORY,
PROCEDURAL, OR CONSTITUTIONAL REQUIREMENTS.  5 U.S.C.
706(2)(A),(B),(C),(D) (1964 ED., SUPP. V).  IN CERTAIN NARROW,
SPECIFICALLY LIMITED SITUATIONS, THE AGENCY ACTION IS TO BE SET ASIDE
IF THE ACTION WAS NOT SUPPORTED BY "SUBSTANTIAL EVIDENCE."  AND IN
OTHER EQUALLY NARROW CIRCUMSTANCES THE REVIEWING COURT IS TO ENGAGE IN
A DE NOVO REVIEW OF THE ACTION AND SET IT ASIDE IF IT WAS "UNWARRANTED
BY THE FACTS."  5 U.S.C. 706(2)(E),(F) (1964 ED., SUPP. V). 

PETITIONERS ARGUE THAT THE SECRETARY'S APPROVAL OF THE CONSTRUCTION
OF I-40 THROUGH OVERTON PARK IS SUBJECT TO ONE OR THE OTHER OF THESE
LATTER TWO STANDARDS OF LIMITED APPLICABILITY.  FIRST, THEY CONTEND
THAT THE "SUBSTANTIAL EVIDENCE" STANDARD OF SEC. 706(2)(E) MUST BE
APPLIED.  IN THE ALTERNATIVE, THEY CLAIM THAT SEC. 706(2)(F) APPLIES
AND THAT THERE MUST BE A DE NOVO REVIEW TO DETERMINE IF THE SECRETARY'S
ACTION WAS "UNWARRANTED BY THE FACTS."  NEITHER OF THESE STANDARDS IS,
HOWEVER, APPLICABLE. 

REVIEW UNDER THE SUBSTANTIAL-EVIDENCE TEST IS AUTHORIZED ONLY WHEN
THE AGENCY ACTION IS TAKEN PURSUANT TO A RULEMAKING PROVISION OF THE
ADMINISTRATIVE PROCEDURE ACT ITSELF, 5 U.S.C. 553 (1964 ED., SUPP. V),
OR WHEN THE AGENCY ACTION IS BASED ON A PUBLIC ADJUDICATORY HEARING. 
SEE 5 U.S.C. 556, 557 (1964 ED., SUPP. V).  THE SECRETARY'S DECISION TO
ALLOW THE EXPENDITURE OF FEDERAL FUNDS TO BUILD I-40 THROUGH OVERTON
PARK WAS PLAINLY NOT AN EXERCISE OF A RULEMAKING FUNCTION.  SEE 1 K.
DAVIS, ADMINISTRATIVE LAW TREATISE SEC. 5.01 (1958).  AND THE ONLY
HEARING THAT IS REQUIRED BY EITHER THE ADMINISTRATIVE PROCEDURE ACT OR
THE STATUTES REGULATING THE DISTRIBUTION OF FEDERAL FUNDS FOR HIGHWAY
CONSTRUCTION IS A PUBLIC HEARING CONDUCTED BY LOCAL OFFICIALS FOR THE
PURPOSE OF INFORMING THE COMMUNITY ABOUT THE PROPOSED PROJECT AND
ELICITING COMMUNITY VIEWS ON THE DESIGN AND ROUTE.  23 U.S.C. 128 (1964
ED., SUPP. V).  THE HEARING IS NONADJUDICATORY, QUASI-LEGISLATIVE IN
NATURE.  IT IS NOT DESIGNED TO PRODUCE A RECORD THAT IS TO BE THE BASIS
OF AGENCY ACTION-- THE BASIC REQUIREMENT FOR SUBSTANTIAL-EVIDENCE
REVIEW.  SEE H. R. REP. NO. 1980, 79TH CONG., 2D SESS.     PETITIONERS'
ALTERNATIVE ARGUMENT ALSO FAILS.  DE NOVO REVIEW OF WHETHER THE
SECRETARY'S DECISION WAS "UNWARRANTED BY THE FACTS" IS AUTHORIZED BY
SEC. 706(2)(F) IN ONLY TWO CIRCUMSTANCES.  FIRST, SUCH DE NOVO REVIEW
IS AUTHORIZED WHEN THE ACTION IS ADJUDICATORY IN NATURE AND THE AGENCY
FACTFINDING PROCEDURES ARE INADEQUATE.  AND, THERE MAY BE INDEPENDENT
JUDICIAL FACTFINDING WHEN ISSUES THAT WERE NOT BEFORE THE AGENCY ARE
RAISED IN A PROCEEDING TO ENFORCE NONADJUDICATORY AGENCY ACTION.  H.R.
REP. NO. 1980, 79TH CONG., 2D SESS.  NEITHER SITUATION EXISTS HERE. 

EVEN THOUGH THERE IS NO DE NOVO REVIEW IN THIS CASE AND THE
SECRETARY'S APPROVAL OF THE ROUTE OF I-40 DOES NOT HAVE ULTIMATELY TO
MEET THE SUBSTANTIAL-EVIDENCE TEST, THE GENERALLY APPLICABLE STANDARDS
OF SEC. 706 REQUIRE THE REVIEWING COURT TO ENGAGE IN A SUBSTANTIAL
INQUIRY.  CERTAINLY, THE SECRETARY'S DECISION IS ENTITLED TO A
PRESUMPTION OF REGULARITY.  SEE, E.G., PACIFIC STATES BOX & BASKET CO.
V. WHITE, 296 U.S. 176, 185 (1935); UNITED STATES V. CHEMICAL
FOUNDATION, 272 U.S. 1, 14-15 (1926).  BUT THAT PRESUMPTION IS NOT TO
SHIELD HIS ACTION FROM A THOROUGH, PROBING, IN-DEPTH REVIEW. 

THE COURT IS FIRST REQUIRED TO DECIDE WHETHER THE SECRETARY ACTED
WITHIN THE SCOPE OF HIS AUTHORITY.  SCHILLING V. ROGERS, 363 U.S. 666,
676-677 (1960).  THIS DETERMINATION NATURALLY BEGINS WITH A DELINEATION
OF THE SCOPE OF THE SECRETARY'S AUTHORITY AND DISCRETION.  L. JAFFE,
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 359 (1965).  AS HAS BEEN
SHOWN, CONGRESS HAS SPECIFIED ONLY A SMALL RANGE OF CHOICES THAT THE
SECRETARY CAN MAKE.  ALSO INVOLVED IN THIS INITIAL INQUIRY IS A
DETERMINATION OF WHETHER ON THE FACTS THE SECRETARY'S DECISION CAN
REASONABLY BE SAID TO BE WITHIN THAT RANGE.  THE REVIEWING COURT MUST
CONSIDER WHETHER THE SECRETARY PROPERLY CONSTRUED HIS AUTHORITY TO
APPROVE THE USE OF PARKLAND AS LIMITED TO SITUATIONS WHERE THERE ARE NO
FEASIBLE ALTERNATIVE ROUTES OR WHERE FEASIBLE ALTERNATIVE ROUTES
INVOLVE UNIQUELY DIFFICULT PROBLEMS.  AND THE REVIEWING COURT MUST BE
ABLE TO FIND THAT THE SECRETARY COULD HAVE REASONABLY BELIEVED THAT IN
THIS CASE THERE ARE NO FEASIBLE ALTERNATIVES OR THAT ALTERNATIVES DO
INVOLVE UNIQUE PROBLEMS. 

SCRUTINY OF THE FACTS DOES NOT END, HOWEVER, WITH THE DETERMINATION
THAT THE SECRETARY HAS ACTED WITHIN THE SCOPE OF HIS STATUTORY
AUTHORITY.  SECTION 706(2)(A) REQUIRES A FINDING THAT THE ACTUAL CHOICE
MADE WAS NOT "ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, OR
OTHERWISE NOT IN ACCORDANCE WITH LAW."  5 U.S.C. 706(2)(A) (1964 ED.,
SUPP. V).  TO MAKE THIS FINDING THE COURT MUST CONSIDER WHETHER THE
DECISION WAS BASED ON A CONSIDERATION OF THE RELEVANT FACTORS AND
WHETHER THERE HAS BEEN A CLEAR ERROR OF JUDGMENT.  JAFFE, SUPRA, AT
182.  SEE MCBEE V. BOMAR, 296 F.2D 235, 237 (CA6 1961); IN RE
JOSEPHSON, 218 F.2D 174, 182 (CA1 1954); WESTERN ADDITION COMMUNITY
ORGANIZATION V. WEAVER, 294 F.SUPP.  433 (ND CAL. 1968).  SEE ALSO WONG
WING HANG V. IMMIGRATION AND NATURALIZATION SERV., 360 F.2D 715, 719
(CA2 1966).  ALTHOUGH THIS INQUIRY INTO THE FACTS IS TO BE SEARCHING
AND CAREFUL, THE ULTIMATE STANDARD OF REVIEW IS A NARROW ONE.  THE
COURT IS NOT EMPOWERED TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE
AGENCY. 

THE FINAL INQUIRY IS WHETHER SECRETARY'S ACTION FOLLOWED THE
NECESSARY PROCEDURAL REQUIREMENTS.  HERE THE ONLY PROCEDURAL ERROR
ALLEGED IS THE FAILURE OF THE SECRETARY TO MAKE FORMAL FINDINGS AND
STATE HIS REASON FOR ALLOWING THE HIGHWAY TO BE BUILT THROUGH THE
PARK. 

UNDOUBTEDLY, REVIEW OF THE SECRETARY'S ACTION IS HAMPERED BY HIS
FAILURE TO MAKE SUCH FINDINGS, BUT THE ABSENCE OF FORMAL FINDINGS DOES
NOT NECESSARILY REQUIRE THAT THE CASE BE REMANDED TO THE SECRETARY. 
NEITHER THE DEPARTMENT OF TRANSPORTATION ACT NOR THE FEDERAL-AID
HIGHWAY ACT REQUIRES SUCH FORMAL FINDINGS.  MOREOVER, THE
ADMINISTRATIVE PROCEDURE ACT REQUIRMENTS THAT THERE BE FORMAL FINDINGS
IN CERTAIN RULEMAKING AND ADJUDICATORY PROCEEDINGS DO NOT APPLY TO THE
SECRETARY'S ACTION HERE.  SEE 5 U.S.C. 553(A)(2), 554(A) (1964 ED.
SUPP. V).  AND, ALTHOUGH FORMAL FINDINGS MAY BE REQUIRED IN SOME CASES
IN THE ABSENCE OF STATUTORY DIRECTIVES WHEN THE NATURE OF THE AGENCY
ACTION IS AMBIGUOUS, THOSE SITUATIONS ARE RARE.  SEE CITY OF YONKERS V.
UNITED STATES, 320 U.S. 685 (1944); AMERICAN TRUCKING ASSNS.  V. UNITED
STATES, 344 U.S. 298, 320 (1953).  PLAINLY, THERE IS NO AMBIGUITY HERE;
THE SECRETARY HAS APPROVED THE CONSTRUCTION OF I-40 THROUGH OVERTON
PARK AND HAS APPROVED A SPECIFIC DESIGN FOR THE PROJECT. 

PETITIONERS CONTEND THAT ALTHOUGH THERE MAY NOT BE A STATUTORY
REQUIREMENT THAT THE SECRETARY MAKE FORMAL FINDINGS AND EVEN THOUGH
THIS MAY NOT BE A CASE FOR THE REVIEWING COURT TO IMPOSE A REQUIREMENT
THAT FINDINGS BE MADE, DEPARTMENT OF TRANSPORTATION REGULATIONS REQUIRE
THEM.  THIS ARGUMENT IS BASED ON DOT ORDER 5610.1, /31/  WHICH REQUIRES
THE SECRETARY TO MAKE FORMAL FINDINGS WHEN HE APPROVES THE USE OF
PARKLAND FOR HIGHWAY CONSTRUCTION BUT WHICH WAS ISSUED AFTER THE ROUTE
FOR I-40 WAS APPROVED.  /32/  PETITIONERS ARGUE THAT EVEN THOUGH THE
ORDER WAS NOT IN EFFECT AT THE TIME APPROVAL WAS GIVEN TO THE OVERTON
PARK PROJECT AND EVEN THOUGH THE ORDER WAS NOT INTENDED TO HAVE
RETROSPECTIVE EFFECT THE ORDER REPRESENTS THE LAW AT THE TIME OF THIS
COURT'S DECISION AND UNDER THORPE V. HOUSING AUTHORITY, 393 U.S. 268,
281-282 (1969), SHOULD BE APPLIED TO THIS CASE. 

THE THORPE LITIGATION RESULTED FROM AN ATTEMPT TO EVICT A TENANT
FROM A FEDERALLY FUNDED HOUSING PROJECT UNDER CIRCUMSTANCES THAT
SUGGESTED THAT THE EVICTION WAS PROMPTED BY THE TENANT'S OBJECTIONS TO
THE MANAGEMENT OF THE PROJECT.  DESPITE REPEATED REQUESTS, THE HOUSING
AUTHORITY WOULD NOT GIVE AN EXPLANATION FOR ITS ACTION.  THE TENANT
CLAIMED THAT THE EVICTION AND TO AFFORD HER A HEARING DENIED HER DUE
PROCESS.  AFTER DENIAL OF RELIEF IN THE STATE COURTS, THIS COURT
GRANTED CERTIORARI "TO CONSIDER WHETHER (THE TENANT) WAS DENIED DUE
PROCESS BY THE HOUSING AUTHORITY'S REFUSAL TO STATE THE REASONS FOR HER
EVICTION AND TO AFFORD HER A HEARING AT WHICH SHE COULD CONTEST THE
SUFFICIENCY OF THOSE REASONS."  393 U.S.,AT 272. 

WHILE THE CASE WAS PENDING IN THIS COURT, THE DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT ISSUED REGULATIONS REQUIRING HOUSING AUTHORITY
OFFICIALS TO INFORM TENANTS OF THE REASONS FOR AN EVICTION AND TO GIVE
A TENANT THE OPPORTUNITY TO REPLY.  THE CASE WAS THEN REMANDED TO THE
STATE COURTS TO DETERMINE IF THE HUD REGULATIONS WERE APPLICABLE TO
THAT CASE.  THE STATE COURT HELD THEM NOT TO BE APPLICABLE AND THIS
COURT REVERSED ON THE GROUND THAT THE GENERAL RULE IS ,THAT AN
APPELLATE COURT MUST APPLY THE LAW IN EFFECT AT THE TIME IT RENDERS ITS
DECISION."  393 U.S.,AT 281. 

WHILE WE DO NOT QUESTION THAT DOT ORDER 5610.1 CONSTITUTES THE LAW
IN EFFECT AT THE TIME OF OUR DECISION, WE DO NOT BELIEVE THAT THORPE
COMPELS US TO REMAND FOR THE SECRETARY TO MAKE FORMAL FINDINGS.  /33/
HERE, UNLIKE, THE SITUATION IN THORPE, THERE HAS BEEN A CHANGE IN
CIRCUMSTANCES-- ADDITIONAL RIGHT-OF-WAY HAS BEEN CLEARED AND THE 26
ACRE RIGHT-OF-WAY INSIDE OVERTON PARK HAS BEEN PURCHASED BY THE STATE. 
MOREOVER, THERE IS AN ADMINISTRATIVE RECORD THAT ALLOWS THE FULL,
PROMPT REVIEW OF THE SECRETARY'S ACTION THAT IS SOUGHT WITHOUT
ADDITIONAL DELAY WHICH WOULD RESULT FROM HAVING A REMAND TO THE
SECRETARY. 

THAT ADMINISTRATIVE RECORD IS NOT, HOWEVER, BEFORE US.  THE LOWER
COURTS BASED THEIR REVIEW ON THE LITIGATION AFFIDAVITS THAT WERE
PRESENTED.  THESE AFFIDAVITS WERE MERELY "POST HOC" RATIONALIZATIONS,
BURLINGTON TRUCK LINES V. UNITED STATES, SUPRA; SEC V. CHENERY CORP.,
318 U.S. 80, 87 (1943).  AND THEY CLEARLY DO NOT CONSTITUTE THE "WHOLE
RECORD" COMPILED BY THE AGENCY:  THE BASIS FOR REVIEW REQUIRED BY SEC.
706 OF THE ADMINISTRATIVE PROCEDURE ACT.  SEE N. 30, SUPRA. 

THUS IT IS NECESSARY TO REMAND THIS CASE TO THE DISTRICT COURT FOR
PLENARY REVIEW OF THE SECRETARY'S DECISION.  THAT REVIEW IS TO BE BASED
ON THE FULL ADMINISTRATIVE RECORD THAT WAS BEFORE THE SECRETARY AT THE
TIME HE MADE HIS DECISION.  /34/  BUT SINCE THE BARE RECORD MAY NOT
DISCLOSE THE FACOTRS THAT WERE CONSIDERED OR THE SECRETARY'S
CONSTRUCTION OF THE EVIDENCE IT MAY BE NECESSARY FOR THE DISTRICT COURT
TO REQUIRE SOME EXPLANATION IN ORDER TO DETERMINE IF THE SECRETARY
ACTED WITHIN THE SCOPE OF HIS AUTHORITY AND IF THE SECRETARY'S ACTION
WAS JUSTIFIABLE UNDER THE APPLICABLE STANDARD. 

THE COURT MAY REQUIRE THE ADMINISTRATIVE OFFICIALS WHO PARTICIPATED
IN THE DECISION TO GIVE TESTIMONY EXPLAINING THEIR ACTION.  OF COURSE,
SUCH INQUIRY INTO THE MENTAL PROCESSES OF ADMINISTRATIVE DECISIONMAKERS
IS USUALLY TO BE AVOIDED.  UNITED STATES V. MORGAN, 313 U.S. 409, 422
(1941).  AND WHERE THERE ARE ADMINISTRATIVE FINDINGS THAT WERE MADE AT
THE SAME TIME AS THE DECISION, AS WAS THE CASE IN MORGAN, THERE MUST BE
A STRONG SHOWING OF BAD FAITH OR IMPROPER BEHAVIOR BEFORE SUCH INQUIRY
MAY BE MADE.  BUT HERE THERE ARE NO SUCH FORMAL FINDINGS AND IT MAY BE
THAT THE ONLY WAY THERE CAN BE EFFECTIVE JUDICIAL REVIEW IS BY
EXAMINING THE DECISIONMAKERS THEMSELVES.  SEE SHAUGHNESSY V. ACCARDI,
349 U.S. 280 (1955). 

THE DISTRICT COURT IS NOT, HOWEVER, REQUIRED TO MAKE SUCH AN
INQUIRY.  IT MAY BE THAT THE SECRETARY CAN PREPARE FORMAL FINDINGS
INCLUDING THE INFORMATION REQUIRED BY DOT ORDER 5610.1 THAT WILL
PROVIDE AN ADEQUATE EXPLANATION FOR HIS ACTION.  SUCH AN EXPLANATION
WILL, TO SOME EXTENT, BE A "POST HOC RATIONALIZATION" AND THUS MUST BE
VIEWED CRITICALLY.  IF THE DISTRICT COURT DECIDES THAT ADDITIONAL
EXPLANATION IS NECESSARY, THAT COURT SHOULD CONSIDER WHICH METHOD WILL
PROVE THE MOST EXPEDITIOUS SO THAT FULL REVIEW MAY BE HAD AS SOON AS
POSSIBLE. 

              REVERSED AND REMANDED. 

/1/  SEE, E.G., THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, 83
STAT. 852, 42 U.S.C. 4321 ET SEQ. (1964 ED., SUPP. V); ENVIRONMENTAL
EDUCATION ACT, 84 STAT. 1312, 20 U.S.C. 1531 ET SEQ. (1970 ED.); AIR
QUALITY ACT OF 1967, 81 STAT. 485, 42 U.S.C. 1857 ET SEQ. (1964 ED.,
SUPP. V); ENVIRONMENTAL QUALITY IMPROVEMENT ACT OF 1970, 84 STAT. 114,
42 U.S.C. 4371-7374 (1970 ED.). 

/2/  "IT IS HEREBY DECLARED TO BE THE NATIONAL POLICY THAT SPECIAL
EFFORT SHOULD BE MADE TO PRESERVE THE NATURAL BEAUTY OF THE COUNTRYSIDE
AND PUBLIC PARK AND RECREATION LANDS, WILDLIFE AND WATERFOWL REFUGES,
AND HISTORIC SITES.  THE SECRETARY OF TRANSPORTATION SHALL COOPERATE
AND CONSULT WITH THE SECRETARIES OF THE INTERIOR, HOUSING AND URBAN
DEVELOPMENT, AND AGRICULTURE, AND WITH THE STATES IN DEVELOPING
TRANSPORTATION PLANS AND PROGRAMS THAT INCLUDE MEASURES TO MAINTAIN OR
ENHANCE THE NATURAL BEAUTY OF THE LANDS TRAVERSED.  AFTER AUGUST 23,
1968, THE SECRETARY SHALL NOT APPROVE ANY PROGRAM OR PROJECT WHICH
REQUIRES THE USE OF ANY PUBLICLY OWNED LAND FROM A PUBLIC PARK,
RECREATION AREA, OR WILDLIFE AND WATERFOWL REFUGE OF NATIONAL, STATE,
OR LOCAL SIGNIFICANCE AS DETERMINED BY THE FEDERAL, STATE, OR LOCAL
OFFICIALS HAVEING JURIDCITION THEREOF, OR ANY LAND FROM AN HISTORIC
SITE OF NATIONAL, STATE, OR LOCAL SIGNIFICANCE AS SO DETERMINED BY SUCH
OFFICIALS UNLESS (1) THERE IS NO FEASIBLE AND PRUDENT ALTERNATIVE TO
THE USE OF SUCH LAND, AND (2) SUCH PROGRAM INCLUDES ALL POSSIBLE
PLANNING TO MINIMIZE HARM TO SUCH PARK, RECREATIONAL AREA, WILDLIFE AND
WATERFOWL REFUGE, OR HISTORIC SITE RESULTING FROM SUCH USE."  82 STAT.
824, 49 U.S.C. 1653(F) (1964 ED., SUPP. V). 

/3/  "IT IS HEREBY DECLARED TO BE THE NATIONAL POLICY THAT SPECIAL
EFFORT SHOULD BE MADE TO PRESERVE THE NATURAL BEAUTY OF THE COUNTRYSIDE
AND PUBLIC PARK AND RECREATION LANDS, WILDLIFE AND WATERFOWL REFUGES,
AND HISTORIC SITES.  THE SECRETARY OF TRANSPORTATION SHALL COOPERATE
AND CONSULT WITH THE SECRETARIES OF THE INTERIOR, HOUSING AND URBAN
DEVELOPMENT, AND AGRICULTURE, AND WITH THE STATES IN DEVELOPING
TRANSPORTATION PLANS AND PROGRAMS THAT INCLUDE MEASURES TO MAINTAIN OR
ENHANCE THE NATURAL BEAUTY OF THE LANDS TRAVERSED.  AFTER THE EFFECTIVE
DATE OF THE FEDERAL-AID HIGHWAY ACT OF 1968, THE SECRETARY SHALL NOT
APPROVE ANY PROGRAM OR PROJECT WHICH REQUIRES THE USE OF ANY PUBLICLY
OWNED LAND FROM A PUBLIC PARK, RECREATION AREA, OR WILDLIFE AND
WATERFOWL REFUGE OF NATIONAL, STATE, OR LOCAL SIGNIFICANCE AS
DETERMINED BY THE FEDERAL, STATE, OR LOCAL OFFICIALS HAVING
JURISDICTION THEREOF, OR ANY LAND FROM AN HISTORIC SITE OF NATIONAL,
STATE, OR LOCAL SIGNIFICANCE AS SO DETERMINED BY SUCH OFFICIALS UNLESS
(1) THERE IS NO FEASIBLE AND PRUDENT ALTERNATIVE TO THE USE OF SUCH
LAND, AND (2) SUCH PROGRAM INCLUDES ALL POSSIBLE PLANNING TO MINIMIZE
HARM TO SUCH PARK, RECREATIONAL AREA, WILDLIFE AND WATERFOWL REFUGE, OR
HISTORIC SITE RESULTING FROM SUCH USE."  23 U.S.C. 138 (1964 ED., SUPP.
V). 

/4/  49 U.S.C. 1653(F) (1964 ED., SUPP. V); 23 U.S.C. 138 (1964 ED.,
SUPP. V). 

/5/  IBID. 

/6/  SEE 23 U.S.C. 103. 

/7/  THE CASE ORIGINATED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA.  ON APPLICATION OF THE SECRETARY OF
TRANSPORTATION IT WAS TRANSFERRED TO THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE, WHICH ENTERED THE SUMMARY
JUDGMENT. 

/8/  432 F.2D 1307 (CA6 1970). 

/9/  THIS COURT ORDERED THE CASE TO BE HEARD ON AN EXPEDITED
SCHEDULE. 

/10/  THE PROPOSED RIGHT-OF-WAY WILL BE 250 TO 450 FEET WIDE AND
WILL FOLLOW THE ROUTE OF A PRESENTLY EXISTING, NONACCESS BUS ROUTE,
WHICH CARRIES OCCASIONAL BUS TRAFFIC ALONG A 40-TO 50-FOOT RIGHT-OF
WAY. 

/11/  SEE 23 U.S.C. 103(D) (1964 ED., SUPP. V). 

/12/  I-40 WILL ALSO PROVIDE AN EXPRESS BYPASS FOR EAST-WEST TRAFFIC
THROUGH MEMPHIS.     /13/  AT THAT TIME THE BUREAU OF PUBLIC ROADS WAS
A PART OF THE DEPARTMENT OF COMMERCE.  THE DEPARTMENT OF TRANSPORTATION
ACT, 49 U.S.C. 1651 ET SEQ. (1964 ED., SUPP. V), WHICH BECAME EFFECTIVE
ON APRIL 1, 1967, TRANSFERRED THE BUREAU TO THE NEW DEPARTMENT OF
TRANSPORTATION. 

/14/  THE SECRETARY APPROVED THESE ACQUISITIONS IN 1967 SHORTLY
AFTER THE EFFECTIVE DATE OF SEC. 4(F). 

/15/  THE STATE PAID THE CITY $2,000,000 FOR THE 26-ACRE RIGHT-OF
WAY AND $206,000 TO THE MEMPHIS PARK COMMISSION TO REPLACE PARK
FACILITIES THAT WERE TO BE DESTROYED BY THE HIGHWAY.  THE CITY OF
MEMPHIS HAS USED $1,000,000 OF THESE FUNDS TO PAY FOR A NEW 160-ACRE
PARK AND IT IS ANTICIPATED THAT ADDITIONAL PARKLAND WILL BE ACQUIRED
WITH THE REMAINING MONEY. 

/16/  RESPONDENTS ARGUE THAT THE ONLY ISSUE RAISED BY PETITIONERS'
PLEADINGS IS THE FAILURE OF THE SECRETARY TO MAKE FORMAL FINDINGS.  BUT
WHEN PETITIONERS' COMPLAINT IS READ IN THE REVEALING LIGHT OF CONLEY V.
GIBSON, 355 U.S. 41 (1957), IT IS CLEAR THAT PETITIONERS HAVE ALSO
CHALLENGED THE MERITS OF THE SECRETARY'S DECISION. 

/17/  PETITIONERS CONTEND THAT FORMER FEDERAL HIGHWAY ADMINISTRATOR
BRIDWELL'S ACCOUNT OF AN APRIL 3, 1968, MEETING WITH THE MEMPHIS CITY
COUNCIL GIVEN TO THE SENATE SUBCOMMITTEE ON ROADS OF THE SENATE
COMMITTEE ON PUBLIC WORKS SUPPORTS THIS CHARGE.  SEE HEARINGS ON URBAN
HIGHWAY PLANNING, LOCATION, AND DESIGN BEFORE THE SUBCOMMITTEE ON ROADS
OF THE SENATE COMMITTEE ON PUBLIC WORKS, 90TH CONG., 1ST AND 2D SESS.,
PT. 2, PP. 478-480 (1968). 

/18/  PETITIONERS ARGUE THAT EITHER A BORED TUNNEL OR A CUT-AND
COVER TUNNEL, WHICH IS A FULLY DEPRESSED ROUTE COVERED AFTER
CONSTRUCTION, COULD BE BUILT.  RESPONDENTS CONTEND THAT THE
CONSTRUCTION OF A TUNNEL BY EITHER METHOD WOULD GREATLY INCREASE THE
COST OF THE PROJECT, WOULD CREATE SAFETY HAZARDS, AND BECAUSE OF
INCREASES IN AIR POLLUTION WOULD NOT REDUCE HARM TO THE PARK. 

/19/  PETITIONERS CONTEND THAT ADEQUATE DRAINAGE COULD BE PROVIDED
BY USING MECHANICAL PUMPS OR SOME FORM OF INVERTED SIPHON.  THEY CLAIM
THAT SUCH DEVICES ARE OFTEN USED IN EXPRESSWAY CONSTRUCTION. 

/20/  PETITIONERS WANTED TO QUESTION FORMER HIGHWAY ADMINISTRATOR
BRIDWELL.  SEE N. 17, SUPRA. 

/21/  IN ADDITION, THE DEPARTMENT OF TRANSPORTATION ACT MAKES THE
ADMINISTRATIVE PROCEDURE ACT APPLICABLE TO PROCEEDINGS OF THE
DEPARTMENT OF TRANSPORTATION.  49 U.S.C. 1655(H) (1964 ED., SUPP. V). 

/22/  SEE ALSO RUSK V. CORT, 369 U.S. 367, 379-380 (1962). 

/23/  THE SCOPE OF THIS EXCEPTION HAS BEEN THE SUBJECT OF EXTENSIVE
COMMENTARY.  SEE, E.G., BERGER, ADMINISTRATIVE ARBITRARINESS:  A
SYNTHESIS, 78 YALEL.J. 965 (1969); SAFERSTEIN, NONREVIEWABILITY:  A
FUNCTIONAL ANALYSIS OF "COMMITTED TO AGENCY DISCRETION," 82
HARV.L.REV.  367 (1968); DAVIS, ADMINISTRATIVE ARBITRARINESS IS NOT
ALWAYS REVIEWABLE, 51 MINN.L.REV.  643 (1967); BERGER, ADMINISTRATIVE
ARBITRARINESS:  A SEQUEL, 51 MINN.L.REV.  601 (1967). 

/24/ SEE 114 CONG.REC.  19915 (STATEMENT BY REP. HOLIFIELD). 

/25/  SEE N. 15, SUPRA. 

/26/  SEE 114 CONG.REC.  24037 (STATEMENT BY SEN. YARBOROUGH). 

/27/  SEE, E.G., S. REP. NO. 1340, 90TH CONG., 2D SESS., 18-19; H.R.
REP. NO. 1584, 90TH CONG., 2D SESS., 12. 

/28/  THE LEGISLATIVE HISTORY INDICATES THAT THE SECRETARY IS NOT TO
LIMIT HIS CONSIDERATION TO INFORMATION SUPPLIED BY STATE AND LOCAL
OFFICIALS BUT IS TO GO BEYOND THIS INFORMATION AND REACH HIS OWN
INDEPENDENT DECISION.  114 CONG.REC.  24036-24037. 

/29/  THE LEGISLATIVE HISTORY OF BOTH SEC. 4(F) OF THE DEPARTMENT OF
TRANSPORTATION ACT, 49 U.S.C. 1653(F) (1964 ED., SUPP. V), AND SEC. 138
OF THE FEDERAL-AID HIGHWAY ACT, 23 U.S.C. 138 (1964 ED., SUPP. V.), IS
AMBIGUOUS.  THE LEGISLATIVE COMMITTEE REPORTS TEND TO SUPPORT
RESPONDENTS' VIEW THAT THE STATUTES ARE MERELY GENERAL DIRECTIVES TO
THE SECRETARY REQUIRING HIM TO CONSIDER THE IMPORTANCE OF PARKLAND AS
WELL AS COST, COMMUNITY DISRUPTION, AND OTHER FACTORS.  SEE, E.G., S.
REP. NO.1340, 90TH CONG., 2D SESS., 19; H.R. REP. NO. 1584, 90TH CONG.,
2D SESS., 12.  STATEMENTS BY PROPONENTS OF THE STATUTES AS WELL AS THE
SENATE COMMITTEE REPORT ON SEC. 4(F) INDICATE, HOWEVER, THAT THE
SECRETARY WAS TO HAVE LIMITED AUTHORITY.  SEE, E.G., 114 CONG.REC. 
24033-24037; S. REP. NO. 1659, 89TH CONG., 2D SESS., 22.  SEE ALSO H.R.
CONF. REP. NO. 2236, 89TH CONG., 2D SESS., 25.  BECAUSE OF THIS
AMBIGUITY IT IS CLEAR THAT WE MUST LOOK PRIMARILY TO THE STATUTES
THEMSELVES TO FIND THE LEGISLATIVE INTENT. 

/30/  "TO THE EXTENT NECESSARY TO DECISION AND WHEN 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 AN AGENCY ACTION.  THE REVIEWING COURT
SHALL-- 

"(1) COMPEL AGENCY ACTION UNLAWFULLY WITHHELD OR UNREASONABLY
DELAYED; AND 

"(2) HOLD UNLAWFUL AND SET ASIDE AGENCY ACTION, FINDINGS, AND
CONCLUSIONS FOUND TO BE-- 

"(A) ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, OR OTHERWISE NOT
IN ACCORDANCE WITH LAW; 

"(B) CONTRARY TO CONSTITUTIONAL RIGHT, POWER, PRIVILEGE, OR
IMMUNITY; 

"(C) IN EXCESS OF STATUTORY JURISDICTION, AUTHORITY, OR LIMITATIONS,
OR SHORT OF STATUTORY RIGHT;

"(D) WITHOUT OBSERVANCE OF PROCEDURE REQUIRED BY LAW; 

"(E) UNSUPPORTED BY SUBSTANTIAL EVIDENCE IN A CASE SUBJECT TO
OF AN AGENCY HEARING PROVIDED BY STATUTE; OR 

"(F) 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 THOSE PARTS OF IT CITED BY A PARTY, AND DUE ACCOUNT
SHALL BE TAKEN OF THE RULE OF PREJUDICIAL ERROR."  5 U.S.C. 706 (1964
ED., SUPP. V). 

/31/  THE REGULATION WAS PROMULGATED PURSUANT TO EXECUTIVE ORDER
11514, DATED MARCH 5, 1970, 35 FED.REG.  4247, WHICH INSTRUCTED ALL
FEDERAL AGENCIES TO INITIATE PROCEDURES NEEDED TO DIRECT THEIR POLICIES
AND PROGRAMS TOWARD MEETING NATIONAL ENVIRONMENTAL GOALS. 

/32/  DOT ORDER 5610.1 WAS ISSUED ON OCTOBER 7, 1970. 

/33/  EVEN IF FORMAL FINDINGS BY THE SECRETARY WERE MANDATORY, THE
PROPER COURSE WOULD BE TO REMAND THE CASE TO THE DISTRICT COURT
DIRECTING THAT COURT TO ORDER THE SECRETARY TO MAKE FORMAL FINDINGS. 
SEE R. ROBERTSON & F. KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE
UNITED STATES SEC. 446, P. 929 (R. WOLFSON & P. KURLAND ED. 1951).  OF
COURSE, THE DISTRICT COURT IS NOT PROHIBITED FROM REMANDING THE CASE TO
THE SECRETARY.  SEE INFRA, AT 420. 

/34/  THE SOLICITOR GENERAL NOW URGES THAT IN ORDER TO AVOID
ADDITIONAL DELAY THE PROPER COURSE IS TO REMAND THE CASE TO THE
DISTRICT COURT FOR REVIEW OF THE FULL ADMINISTRATIVE RECORD. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

SEPARATE OPINION OF MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE BRENNAN
JOINS. 

I AGREE WITH THE COURT THAT THE JUDGMENT OF THE COURT OF APPEALS IS
WRONG AND THAT ITS ACTION SHOULD BE REVERSED.  I DO NOT AGREE THAT THE
WHOLE MATTER SHOULD BE REMANDED TO THE DISTRICT COURT.  I THINK THE
CASE SHOULD BE SENT BACK TO THE SECRETARY OF TRANSPORTATION.  IT IS
APPARENT FROM THE COURT'S OPINION TODAY THAT THE SECRETARY OF
TRANSPORTATION COMPLETELY FAILED TO COMPLY WITH THE DUTY IMPOSED UPON
HIM BY CONGRESS NOT TO PERMIT A FEDERALLY FINANCED PUBLIC HIGHWAY TO
RUN THROUGH A PUBLIC PARK "UNLESS (1) THERE IS NO FEASIBLE AND PRUDENT
ALTERNATIVE TO THE USE OF SUCH LAND, AND (2) SUCH PROGRAM INCLUES ALL
POSSIBLE PLANNING TO MINIMIZE HARM TO SUCH PARK . . . ."  23 U.S.C. 138
(1964 ED., SUPP. V); 49 U.S.C. 1653(F) (1964 ED., SUPP. V).  THAT
CONGRESSIONAL COMMAND SHOULD NOT BE TAKEN LIGHTLY BY THE SECRETARY OR
BY THIS COURT.  IT REPRESENTS A SOLEMN DETERMINATION OF THE HIGHEST LAW
MAKING BODY OF THIS NATION THAT THE BEAUTY AND HEALTH-GIVING FACILITIES
OF OUR PARKS ARE NOT TO BE TAKEN AWAY FOR PUBLIC ROADS WITHOUT
HEARINGS, FACTFINDINGS, AND POLICY DETERMINATIONS UNDER THE SUPERVISION
OF A CABINET OFFICER-- THE SECRETARY OF TRANSPORTATION.  THE ACT OF
CONGRESS IN CONNECTION WITH OTHER FEDERAL HIGHWAY AID LEGISLATION, /1/
IT SEEMS TO ME, CALLS FOR HEARINGS-- HEARINGS THAT A COURT CAN REVIEW,
HEARINGS THAT DEMONSTRATE MORE THAN MERE ARBITRARY DEFIANCE BY THE
SECRETARY.  WHETHER THE FINDINGS GROWING OUT OF SUCH HEARINGS ARE
LABELED "FORMAL"  OR "INFORMAL" APPEARS TO ME TO BE NO MORE THAN AN
EXERCISE IN SEMANTICS.  WHATEVER THE HEARING REQUIREMENTS MIGHT BE, THE
DEPARTMENT OF TRANSPORTATION FAILED TO MEET THEM IN THIS CASE.  I
REGRET THAT I AM COMPELLED TO CONCLUDE FOR MYSELF THAT, EXCEPT FOR SOME
TOO-LATE FORMULATIONS, APPARENTLY COMING FROM THE SOLICITOR GENERAL'S
OFFICE, THIS RECORD CONTAINS NOT ONE WORD TO INDICATE THAT THE
SECRETARY RAISED EVEN A FINGER TO COMPLY WITH THE COMMAND OF CONGRESS. 
IT IS OUR DUTY, I BELIEVE, TO REMAND THIS WHOLE MATTER BACK TO THE
SECRETARY OF TRANSPORTATION FOR HIM TO GIVE THIS MATTER THE HEARING IT
DESERVES IN FULL GOOD-FAITH OBEDIENCE TO THE ACT OF CONGRESS.  THAT ACT
WAS OBVIOUSLY PASSED TO PROTECT OUR PUBLIC PARKS FROM FORAYS BY ROAD
BUILDERS EXCEPT IN THE MOST EXTRAORDINARY AND IMPERATIVE
CIRCUMSTANCES.  /2/  THIS RECORD DOES NOT DEMONSTRATE THE EXISTENCE OF
SUCH CIRCUMSTANCES.  I DISSENT FROM THE COURT'S FAILURE TO SEND THE
CASE BACK TO THE SECRETARY, WHOSE DUTY HAS NOT YET BEEN PERFORMED. 

/1/  SEE 23 U.S.C. 128 (1964 ED., SUPP. V) AND REGULATIONS
PROMULGATED THEREUNDER, 34 FED.REG.  727-730 (1969). 

/2/  SEE ALSO NAMED INDIVIDUAL MEMBERS OF THE SAN ANTONIO
CONSERVATION SOCIETY V. TEXAS HIGHWAY DEPARTMENT, 400 U.S. 968, 972
(1970) (DISSENTS FROM THE DENIAL OF CERTIORARI). 

MR. JUSTICE BLACKMUN. 

I FULLY JOIN THE COURT IN ITS OPINION AND IN ITS JUDGMENT.  I MERELY
WISH TO STATE THE OBVIOUS:  (1) THE CASE COMES TO THIS COURT AS THE END
PRODUCT OF MORE THAN A DECADE OF ENDEAVOR TO SOLVE THE INTERSTATE
HIGHWAY PROBLEM AT MEMPHIS.  (2) THE ADMINISTRATIVE DECISIONS UNDER
ATTACK HERE ARE NOT THOSE OF A SINGLE SECRETARY; SOME WERE MADE BY THE
PRESENT SECRETARY'S PREDECESSOR AND, BEFORE HIM, BY THE DEPARTMENT OF
COMMERCE'S BUREAU OF PUBLIC ROADS.  (3) THE 1966 ACT AND THE 1968 ACT
HAVE CUT ACROSS FORMER METHODS AND HERE HAVE IMPOSED NEW STANDARDS AND
CONDITIONS UPON A SITUATION THAT ALREADY WAS LARGELY DEVELOPED. 

THIS UNDOUBTEDLY IS WHY THE RECORD IS SKETCHY AND LESS THAN ONE
WOULD EXPECT IF THE PROJECT WERE ONE WHICH HAD BEEN INSTITUTED AFTER
THE PASSAGE OF THE 1966 ACT. 

JOHN W. VARDAMAN, JR., ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEFS WAS EDWARD BENNETT WILLIAMS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR RESPONDENT VOLPE. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL GRAY, ALAN S.
ROSENTHAL, AND DANIEL JOSEPH.  J. ALAN HANOVER ARGUED THE CAUSE FOR
RESPONDENT SPEIGHT.  WITH HIM ON THE BRIEF WERE DAVID M. PACK, ATTORNEY
GENERAL OF TENNESSEE, LURTON C. GOODPASTURE, ASSISTANT ATTORNEY
GENERAL, AND JAMES B. JALENAK. 

BRIEFS OF AMICI CURIAE WERE FILED BY JAMES M. MANIRE AND JACK PETREE
FOR THE CITY OF MEMPHIS ET AL., AND BY ROBERTS B. OWEN AND GERALD P.
NORTON FOR THE COMMITTEE OF 100 ON THE FEDERAL CITY, INC., ET AL.
..END :











HARRIS V. NEW YORK, 401 U.S. 222 


       HARRIS V. NEW YORK

        CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

        NO. 206.  ARGUED DECEMBER 17, 1970-- DECIDED FEBRUARY 24,

           1971 


STATEMENT INADMISSIBLE AGAINST A DEFENDANT IN THE PROSECUTION'S CASE
IN CHIEF BECAUSE OF LACK OF THE PROCEDURAL SAFEGUARDS REQUIRED BY
MIRANDA V. ARIZONA, 384 U.S. 436, MAY, IF ITS TRUSTWORTHINESS SATISFIES
LEGAL STANDARDS, BE USED FOR IMPEACHMENT PURPOSES TO ATTACK THE
CREDIBILITY OF DEFENDANT'S TRIAL TESTIMONY.  SEE WALDER V. UNITED
STATES, 347 U.S. 62.  PP. 223-226. 

25 N.Y.2D 175, 250 N.E.2D 349, AFFIRMED. 

BURGER, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH HARLAN,
STEWART, WHITE, AND BLACKMUN, JJ., JOINED.  BLACK, J., DISSENTED. 
BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL,
JJ., JOINED, POST, P. 226. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT IN THIS CASE TO CONSIDER PETITIONER'S CLAIM THAT
A STATEMENT MADE BY HIM TO POLICE UNDER CIRCUMSTANCES RENDERING IT
INADMISSIBLE TO ESTABLISH THE PROSECUTION'S CASE IN CHIEF UNDER MIRANDA
V. ARIZONA, 384 U.S. 436 (1966), MAY NOT BE USED TO IMPEACH HIS
CREDIBILITY. 

THE STATE OF NEW YORK CHARGED PETITIONER IN A TWO-COUNT INDICTMENT
WITH TWICE SELLING HEROIN TO AN UNDERCOVER POLICE OFFICER.  AT A
SUBSEQUENT JURY TRIAL THE OFFICER WAS THE STATE'S CHIEF WITNESS, AND HE
TESTIFIED AS TO DETAILS OF THE TWO SALES.  A SECOND OFFICER VERIFIED
COLLATERAL DETAILS OF THE SALES, AND A THIRD OFFERED TESTIMONY ABOUT
THE CHEMICAL ANALYSIS OF THE HEROIN. 

PETITIONER TOOK THE STAND IN HIS OWN DEFENSE.  HE ADMITTED KNOWING
THE UNDERCOVER POLICE OFFICER BUT DENIED A SALE ON JANUARY 4, 1966.  HE
ADMITTED MAKING A SALE OF CONTENTS OF A GLASSINE BAG TO THE OFFICER ON
JANUARY 6 BUT CLAIMED IT WAS BAKING POWDER AND PART OF A SCHEME TO
DEFRAUD THE PURCHASER. 

ON CROSS-EXAMINATION PETITIONER WAS ASKED SERIATIM WHETHER HE HAD
MADE SPECIFIED STATEMENTS TO THE POLICE IMMEDIATELY FOLLOWING HIS
ARREST ON JANUARY 7-- STATEMENTS THAT PARTIALLY CONTRADICTED
PETITIONER'S DIRECT TESTIMONY AT TRIAL.  IN RESPONSE TO THE CROSS
EXAMINATION, PETITIONER TESTIFIED THAT HE COULD NOT REMEMBER VIRTUALLY
ANY OF THE QUESTIONS OR ANSWERS RECITED BY THE PROSECUTOR.  AT THE
REQUEST OF PETITIONER'S COUNSEL THE WRITTEN STATEMENT FROM WHICH THE
PROSECUTOR HAD READ QUESTIONS AND ANSWERS IN HIS IMPEACHING PROCESS WAS
PLACED IN THE RECORD FOR POSSIBLE USE ON APPEAL; THE STATEMENT WAS NOT
SHOWN TO THE JURY. 

THE TRIAL JUDGE INSTRUCTED THE JURY THAT THE STATEMENTS ATTRIBUTED
TO PETITIONER BY THE PROSECUTION COULD BE CONSIDERED ONLY IN PASSING ON
PETITIONER'S CREDIBILITY AND NOT AS EVIDENCE OF GUILT.  IN CLOSING
SUMMATIONS BOTH COUNSEL ARGUED THE SUBSTANCE OF THE IMPEACHING
STATEMENTS.  THE JURY THEN FOUND PETITIONER GUILTY ON THE SECOND COUNT
OF THE INDICTMENT.  /1/  THE NEW YORK COURT OF APPEALS AFFIRMED IN A
PER CURIAM OPINION, 25 N.Y.2D 175, 250 N.E.2D 349 (1969). 

AT TRIAL THE PROSECUTION MADE NO EFFORT IN ITS CASE IN CHIEF TO USE
THE STATEMENTS ALLEGEDLY MADE BY PETITIONER, CONCEDING THAT THEY WERE
INADMISSIBLE UNDER MIRANDA V. ARIZONA, 384 U.S. 436 (1966).  THE
TRANSCRIPT OF THE INTERROGATION USED IN THE IMPEACHMENT, BUT NOT GIVEN
TO THE JURY, SHOWS THAT NO WARNING OF A RIGHT TO APPOINTED COUNSEL WAS
GIVEN BEFORE QUESTIONS WERE PUT TO PETITIONER WHEN HE WAS TAKEN INTO
CUSTODY.  PETITIONER MAKES NO CLAIM THAT THE STATEMENTS MADE TO THE
POLICE WERE COERCED OR INVOLUNTARY. 

SOME COMMENTS IN THE MIRANDA OPINION CAN INDEED BE READ AS
INDICATING A BAR TO USE OF AN UNCOUNSELED STATEMENT FOR ANY PURPOSE,
BUT DISCUSSION OF THAT ISSUE WAS NOT AT ALL NECESSARY TO THE COURT'S
HOLDING AND CANNOT BE REGARDED AS CONTROLLING.  MIRANDA BARRED THE
PROSECUTION FROM MAKING ITS CASE WITH STATEMENTS OF AN ACCUSED MADE
WHILE IN CUSTODY PRIOR TO HAVING OR EFFECTIVELY WAIVING COUNSEL.  IT
DOES NOT FOLLOW FROM MIRANDA THAT EVIDENCE INADMISSIBLE AGAINST AN
ACCUSED IN THE PROSECUTION'S CASE IN CHIEF IS BARRED FOR ALL PURPOSES,
PROVIDED OF COURSE THAT THE TRUSTWORTHINESS OF THE EVIDENCE SATISFIES
LEGAL STANDARDS. 

IN WALDER V. UNITED STATES, 347 U.S. 62 (1954), THE COURT PERMITTED
PHYSICAL EVIDENCE, INADMISSIBLE IN THE CASE IN CHIEF, TO BE USED FOR
IMPEACHMENT PURPOSES. 

     "IT IS ONE THING TO SAY THAT THE GOVERNMENT CANNOT MAKE AN

  AFFIRMATIVE USE OF EVIDENCE UNLAWFULLY OBTAINED.  IT IS QUITE

  ANOTHER TO SAY THAT THE DEFENDANT CAN TURN THE ILLEGAL METHOD BY

  WHICH EVIDENCE IN THE GOVERNMENT'S POSSESSION WAS OBTAINED TO HIS

  OWN ADVANTAGE, AND PROVIDE HIMSELF WITH A SHIELD AGAINST

  CONTRADICTION OF HIS UNTRUTHS.  SUCH AN EXTENSION OF THE WEEKS

  DOCTRINE WOULD BE A PERVERSION OF THE FOURTH AMENDMENT. 

     "(THERE IS HARDLY JUSTIFICATION FOR LETTING THE DEFENDANT

  AFFIRMATIVELY RESORT TO PERJURIOUS TESTIMONY IN RELIANCE ON THE

GOVERNMENT'S DISABILITY TO CHALLENGE HIS CREDIBILITY."  347

 U.S.,AT 65. 

IT IS TRUE THAT WALDER WAS IMPEACHED AS TO COLLATERAL MATTERS
INCLUDED IN HIS DIRECT EXAMINATION, WHEREAS PETITIONER HERE WAS
IMPEACHED AS TO TESTIMONY BEARING MORE DIRECTLY ON THE CRIMES CHARGED. 
WE ARE NOT PERSUADED THAT THERE IS A DIFFERENCE IN PRINCIPLE THAT
WARRANTS A RESULT DIFFERENT FROM THAT REACHED BY THE COURT IN WALDER. 
PETITIONER'S TESTIMONY IN HIS OWN BEHALF CONCERNING THE EVENTS OF
JANUARY 7 CONTRASTED SHARPLY WITH WHAT HE TOLD THE POLICE SHORTLY AFTER
HIS ARREST.  THE IMPEACHMENT PROCESS HERE UNDOUBTEDLY PROVIDED VALUABLE
AID TO THE JURY IN ASSESSING PETITIONER'S CREDIBILITY, AND THE BENEFITS
OF THIS PROCESS SHOULD NOT BE LOST, IN OUR VIEW, BECAUSE OF THE
SPECULATIVE POSSIBILITY THAT IMPERMISSIBLE POLICE CONDUCT WILL BE
ENCOURAGED THEREBY.  ASSUMING THAT THE EXCLUSIONARY RULE HAS A
DETERRENT EFFECT ON PROSCRIBED POLICE CONDUCT, SUFFICIENT DETERRENCE
FLOWS WHEN THE EVIDENCE IN QUESTION IS MADE UNAVAILABLE TO THE
PROSECUTION IN ITS CASE IN CHIEF. 

EVERY CRIMINAL DEFENDANT IS PRIVILEGED TO TESTIFY IN HIS OWN
DEFENSE, OR TO REFUSE TO DO SO.  BUT THAT PRIVILEGE CANNOT BE CONSTRUED
TO INCLUDE THE RIGHT TO COMMIT PERJURY.  SEE UNITED STATES V. KNOX, 396
U.S. 77 (1969); CF. DENNIS V. UNITED STATES, 384 U.S. 855 (1966). 
HAVING VOLUNTARILY TAKEN THE STAND, PETITIONER WAS UNDER AN OBLIGATION
TO SPEAK TRUTHFULLY AND ACCURATELY, AND THE PROSECUTION HERE DID NO
MORE THAN UTILIZE THE TRADITIONAL TRUTH-TESTING DEVICES OF THE
ADVERSARY PROCESS.  /2/  HAD INCONSISTENT STATEMENTS BEEN MADE BY THE
ACCUSED TO SOME THIRD PERSON, IT COULD HARDLY BE CONTENDED THAT THE
CONFLICT COULD NOT BE LAID BEFORE THE JURY BY WAY OF CROSS-EXAMINATION
AND IMPEACHMENT. 

THE SHIELD PROVIDED BY MIRANDA CANNOT BE PERVERTED INTO A LICENSE TO
USE PERJURY BY WAY OF A DEFENSE, FREE FROM THE RISK OF CONFRONTATION
WITH PRIOR INCONSISTENT UTTERANCES.  WE HOLD, THEREFORE, THAT
PETITIONER'S CREDIBILITY WAS APPROPRIATELY IMPEACHED BY USE OF HIS
EARLIER CONFLICTING STATEMENTS. 

       AFFIRMED. 

/1/  NO AGREEMENT WAS REACHED AS TO THE FIRST COUNT.  THAT COUNT WAS
LATER DROPPED BY THE STATE. 

/2/  IF, FOR EXAMPLE, AN ACCUSED CONFESSED FULLY TO A HOMICIDE AND
LED THE POLICE TO THE BODY OF THE VICTIM UNDER CIRCUMSTANCES MAKING HIS
CONFESSION INADMISSIBLE, THE PETITIONER WOULD HAVE US ALLOW THAT
ACCUSED TO TAKE THE STAND AND BLANDLY DENY EVERY FACT DISCLOSED TO THE
POLICE OR DISCOVERED AS A "FRUIT" OF HIS CONFESSION, FREE FROM
CONFRONTATION WITH HIS PRIOR STATEMENTS AND ACTS.  THE VOLUNTARINESS OF
THE CONFESSION WOULD, ON THIS THESIS, BE TOTALLY IRRELEVANT.  WE REJECT
SUCH AN EXTRAVAGANT EXTENSION OF THE CONSTITUTIONA.  COMPARE KILLOUGH
V. UNITED STATES, 114 U.S.APP.D.C. 305, 315 F.2D 241 (1962). 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

IT IS CONCEDED THAT THE QUESTION-AND-ANSWER STATEMENT USED TO
IMPEACH PETITIONER'S DIRECT TESTIMONY WAS, UNDER MIRANDA V. ARIZONA,
384 U.S. 436 (1966), CONSTITUTIONALLY INADMISSIBLE AS PART OF THE
STATE'S DIRECT CASE AGAINST PETITIONER.  I THINK THAT THE CONSTITUTION
ALSO DENIED THE STATE THE USE OF THE STATEMENT ON CROSS-EXAMINATION TO
IMPEACH THE CREDIBILITY OF PETITIONER'S TESTIMONY GIVEN IN HIS OWN
DEFENSE.  THE DECISION IN WALDER V. UNITED STATES, 347 U.S. 62 (1954),
IS NOT, AS THE COURT TODAY HOLDS, DISPOSITIVE TO THE CONTRARY.  RATHER,
THAT CASE SUPPORTS MY CONCLUSION. 

THE STATE'S CASE AGAINST HARRIS DEPENDED UPON THE JURY'S BELIEF OF
THE TESTIMONY OF THE UNDERCOVER AGENT THAT PETITIONER "SOLD" THE
OFFICER HEROIN ON JANUARY 4 AND AGAIN ON JANUARY 6.  PETITIONER TOOK
THE STAND AND FLATLY DENIED HAVING SOLD ANYTHING TO THE OFFICER ON
JANUARY 4.  HE COUNTERED THE OFFICER'S TESTIMONY AS TO THE JANUARY 6
SALE WITH TESTIMONY THAT HE HAD SOLD THE OFFICER TWO GLASSINE BAGS
CONTAINING WHAT APPEARED TO BE HEROIN, BUT THAT ACTUALLY THE BAGS
CONTAINED ONLY BAKING POWDER INTENDED TO DECEIVE THE OFFICER IN ORDER
TO OBTAIN $12.  THE STATEMENT CONTRADICTED PETITIONER'S DIRECT
TESTIMONY AS TO THE EVENTS OF BOTH DAYS.  THE STATEMENT'S VERSION OF
THE EVENTS ON JANUARY 4 WAS THAT THE OFFICER HAD USED PETITIONER AS A
MIDDLEMAN TO BUY SOME HEROIN FROM A THIRD PERSON WITH MONEY FURNISHED
BY THE OFFICER.  THE VERSION OF THE EVENTS ON JANUARY 6 WAS THAT
PETITIONER HAD AGAIN ACTED FOR THE OFFICER IN BUYING TWO BAGS OF HEROIN
FROM A THIRD PERSON FOR WHICH PETITIONER RECEIVED $12 AND A PART OF THE
HEROIN.  THUS, IT IS CLEAR THAT THE STATEMENT WAS USED TO IMPEACH
PETITIONER'S DIRECT TESTIMONY NOT ON COLLATERAL MATTERS BUT ON MATTERS
DIRECTLY RELATED TO THE CRIMES FOR WHICH HE WAS ON TRIAL.  /1/ 

WALDER V. UNITED STATES WAS NOT A CASE WHERE TAINTED EVIDENCE WAS
USED TO IMPEACH AN ACCUSED'S DIRECT TESTIMONY ON MATTERS DIRECTLY
RELATED TO THE CASE AGAINST HIM.  IN WALDER THE EVIDENCE WAS USED TO
IMPEACH THE ACCUSED'S TESTIMONY ON MATTERS COLLATERAL TO THE CRIME
CHARGED.  WALDER AHD BEEN INDICTED IN 1950 FOR PURCHASING AND
POSSESSING HEROIN.  WHEN HIS MOTION TO SUPPRESS USE OF THE NARCOTICS AS
ILLEGALLY SEIZED WAS GRANTED, THE GOVERNMENT DISMISSED THE
PROSECUTION.  TWO YEARS LATER WALDER WAS INDICTED FOR ANOTHER NARCOTICS
VIOLATION COMPLETELY UNRELATED TO THE 1950 ONE.  TESTIFYING IN HIS OWN
DEFENSE, HE SAID ON DIRECT EXAMINATION THAT HE HAD NEVER IN HIS LIFE
POSSESSED NARCOTICS.  ON CROSS-EXAMINATION HE DENIED HAT LAW
ENFORCEMENT OFFICERS HAD SEIZED NARCOTICS FROM HIS HOME TWO YEARS
EARLIER.  THE GOVERNMENT WAS THEN PERMITTED TO INTRODUCE THE TESTIMONY
OF ONE OF THE OFFICERS INVOLVED IN THE 1950 SEIZURE, THAT WHEN HE HAD
RAIDED WALDER'S HOME AT THAT TIME HE HAD SEIZED NARCOTICS THERE.  THE
COURT HELD THAT ON FACTS WHERE "THE DEFENDANT WENT BEYOND A MERE DENIAL
OF COMPLICITY IN THE CRIMES OF WHICH HE WAS CHARGED AND MADE THE
SWEEPING CLAIM THAT HE HAD NEVER DEALT IN OR POSSESSED ANY NARCOTICS,"
347 U.S.,AT 65, THE EXCLUSIONARY RULE OF WEEKS V. UNITED STATES, 232
U.S. 383 (1914), WOULD NOT EXTEND TO BAR THE GOVERNMENT FROM REBUTTING
THIS TESTIMONY WITH EVIDENCE, ALTHOUGH TAINTED, THAT PETITIONER HAD IN
FACT POSSESSED NARCOTICS TWO YEARS BEFORE.  THE COURT WAS CAREFUL,
HOWEVER, TO DISTINGUISH THE SITUATION OF AN ACCUSED WHOSE TESTIMONY, AS
IN THE INSTANT CASE, WAS A "DENIAL OF COMPLICITY IN THE CRIMES OF WHICH
HE WAS CHARGED," THAT IS, WHERE ILLEGALLY OBTAINED EVIDENCE WAS USED TO
IMPEACH THE ACCUSED'S DIRECT TESTIMONY ON MATTERS DIRECTLY RELATED TO
THE CASE AGAINST HIM.  AS TO THAT SITUATION, THE COURT SAID: 

"OF COURSE, THE CONSTITUTION GUARANTEES A DEFENDANT THE FULLEST
OPPORTUNITY TO MEET THE ACCUSATION AGAINST HIM.  HE MUST BE FREE TO
DENY ALL THE ELEMENTS OF THE CASE AGAINST HIM WITHOUT THEREBY GIVING
LEAVE TO THE GOVERNMENT TO INTRODUCE BY WAY OF REBUTTAL EVIDENCE
ILLEGALLY SECURED BY IT, AND THEREFORE NOT AVAILABLE FOR ITS CASE IN
CHIEF."  347 U.S.,AT 65. 

FROM THIS RECITAL OF FACTS IT IS CLEAR THAT THE EVIDENCE USED FOR
IMPEACHMENT IN WALDER WAS RELATED TO THE EARLIER 1950 PROSECUTION AND
HAD NO DIRECT BEARING ON "THE ELEMENTS OF THE CASE" BEING TRIED IN
1952.  THE EVIDENCE TENDED SOLELY TO IMPEACH THE CREDIBILITY OF THE
DEFENDANT'S DIRECT TESTIMONY THAT HE HAD NEVER IN HIS LIFE POSSESSED
HEROIN.  BUT THAT EVIDENCE WAS COMPLETELY UNRELATED TO THE INDICTMENT
ON TRIAL AND DID NOT IN ANY WAY INTERFERE WITH HIS FREEDOM TO DENY ALL
ELEMENTS OF THAT CASE AGAINST HIM.  IN CONTRAST, HERE, THE EVIDENCE
USED FOR IMPEACHMENT, A STATEMENT CONCERNING THE DETAILS OF THE VERY
SALES ALLEGED IN THE INDICTMENT, WAS DIRECTLY RELATED TO THE CASE
AGAINST PETITIONER. 

WHILE WALDER DID NOT IDENTIFY THE CONSTITUTIONAL SPECIFICS THAT
GUARANTEE "A DEFENDANT THE FULLEST OPPORTUNITY TO MEET THE ACCUSATION
AGAINST HIM . . . (AND PERMIT HIM TO) BE FREE TO DENY ALL THE ELEMENTS
OF THE CASE AGAINST HIM," IN MY VIEW MIRANDA V. ARIZONA, 384 U.S. 436
(1966), IDENTIFIED THE FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF
INCRIMINATION AS ONE OF THOSE SPECIFICS.  /2/  THAT PRIVILEGE HAS BEEN
EXTENDED AGAINST THE STATES.  MALLOY V. HOGAN, 378 U.S. 1 (1964).  IT
IS FULFILLED ONLY WHEN AN ACCUSED IS GUARANTEED THE RIGHT "TO REMAIN
SILENT UNLESS HE CHOOSES TO SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN
WILL," ID., AT 8.  THE CHOICE OF WHETHER TO TESTIFY IN ONE'S OWN
DEFENSE MUST THEREFORE BE "UNFETTERED," SINCE THAT CHOICE IS AN
EXERCISE OF THE CONSTITUTIONAL PRIVILEGE, GRIFFIN V. CALIFORNIA, 380
U.S. 609 (1965).  GRIFFIN HELD THAT COMMENT BY THE PROSECUTION UPON THE
ACCUSED'S FAILURE TO TAKE THE STAND OR A COURT INSTRUCTION THAT SUCH
SILENCE IS EVIDENCE OF GUILT IS IMPERMISSIBLE BECAUSE IT "FETTERS" THAT
CHOICE-- "(IT CUTS DOWN ON THE PRIVILEGE BY MAKING ITS ASSERTION
COSTLY."  ID., AT 614.  FOR PRECISELY THE SAME REASON THE
CONSTITUTIONAL GUARANTEE FORBIDS THE PROSECUTION TO USE A TAINTED
STATEMENT TO IMPEACH THE ACCUSED WHO TAKES THE STAND:  THE
PROSECUTION'S USE OF THE TAINTED STATEMENT "CUTS DOWN ON THE PRIVILEGE
BY MAKING ITS ASSERTION COSTLY."  IBID.  THUS, THE ACCUSED IS DENIED AN
"UNFETTERED" CHOICE WHEN THE DECISION WHETHER TO TAKE THE STAND IS
BURDENED BY THE RISK THAT AN ILLEGALLY OBTAINED PRIOR STATEMENT MAY BE
INTRODUCED TO IMPEACH HIS DIRECT TESTIMONY DENYING COMPLICITY IN THE
CRIME CHARGED AGAINST HIM.  /3/  WE SETTLED THIS PROPOSITION IN MIRANDA
WHERE WE SAID:     "THE PRIVILEGE AGAINST SELF-INCRIMINATION PROTECTS
THE INDIVIDUAL FROM BEING COMPELLED TO INCRIMINATE HIMSELF IN ANY
MANNER . . . (STATEMENTS MERELY INTENDED TO BE EXCULPATORY BY THE
DEFENDANT ARE OFTEN USED TO IMPEACH HIS TESTIMONY AT TRIAL . . . THESE
STATEMENTS ARE INCRIMINATING IN ANY MEANINGFUL SENSE OF THE WORD AND
MAY NOT BE USED WITHOUT THE FULL WARNINGS AND EFFECTIVE WAIVER REQUIRED
FOR ANY OTHER STATEMENT."  384 U.S.,AT 476-477.  THIS LANGUAGE
COMPLETELY DISPOSES OF ANY DISTINCTION BETWEEN STATEMENTS USED ON
DIRECT AS OPPOSED TO CROSS-EXAMINATION.  /4/  "AN INCRIMINATING
STATEMENT IS AS INCRIMINATING WHEN USED TO IMPEACH CREDIBILITY AS IT IS
WHEN USED AS DIRECT PROOF OF GUILT AND NO CONSTITUTIONAL DISTINCTION
CAN LEGITIMATELY BE DRAWN."  PEOPLE V. KULIS, 18 N.Y.2D 318, 324, 221
N.E.2D 541, 543 (1966) (DISSENTING OPINION). 

THE OBJECTIVE OF DETERRING IMPROPER POLICE CONDUCT IS ONLY PART OF
THE LARGER OBJECTIVE OF SAFEGUARDING THE INTEGRITY OF OUR ADVERSARY
SYSTEM.  THE "ESSENTIAL MAINSTAY" OF THAT SYSTEM, MIRANDA V. ARIZONA,
384 U.S.,AT 460, IS THE PRIVILEGE AGAINST SELF-INCRIMINATION, WHICH FOR
THAT REASON HAS OCCUPIED A CENTRAL PLACE IN OUR JURISPRUDENCE SINCE
BEFORE THE NATION'S BIRTH.  MOREOVER, "WE MAY VIEW THE HISTORICAL
DEVELOPMENT OF THE PRIVILEGE AS ONE WHICH GROPED FOR THE PROPER SCOPE
OF GOVERNMENTAL POWER OVER THE CITIZEN . . . ALL THESE POLICIES POINT
TO ONE OVERRIDING THOUGHT:  THE CONSTITUTIONAL FOUNDATION UNDERLYING
THE PRIVILEGE IS THE RESPECT A GOVERNMENT . . . MUST ACCORD TO THE
DIGNITY AND INTEGRITY OF ITS CITIZENS."  IBID.  THESE VALUES ARE
PLAINLY JEOPARDIZED IF AN EXCEPTION AGAINST ADMISSION OF TAINTED
STATEMENTS IS MADE FOR THOSE USED FOR IMPEACHMENT PURPOSES.  MOREOVER,
IT IS MONSTROUS THAT COURTS SHOULD AID OR ABET THE LAW-BREAKING POLICE
OFFICER.  IT IS ABIDING TRUTH THAT "(NOTHING CAN DESTROY A GOVERNMENT
MORE QUICKLY THAN ITS FAILURE TO OBSERVE ITS OWN LAWS, OR WORSE, ITS
DISREGARD OF THE CHARTER OF ITS OWN EXISTENCE."  MAPP V. OHIO, 367 U.S.
643, 659 (1961).  THUS, EVEN TO THE EXTENT THAT MIRANDA WAS AIMED AT
DETERRING POLICE PRACTICES IN DISREGARD OF THE CONSTITUTION, I FEAR
THAT TODAY'S HOLDING WILL SERIOUSLY UNDERMINE THE ACHIEVEMENT OF THAT
OBJECTIVE.  THE COURT TODAY TELLS THE POLICE THAT THEY MAY FREELY
INTERROGATE AN ACCUSED INCOMMUNICADO AND WITHOUT COUNSEL AND KNOW THAT
ALTHOUGH ANY STATEMENT THEY OBTAIN IN VIOLATION OF MIRANDA CANNOT BE
USED ON THE STATE'S DIRECT CASE, IT MAY BE INTRODUCED IF THE DEFENDANT
HAS THE TEMERITY TO TESTIFY IN HIS OWN DEFENSE.  THIS GOES FAR TOWARD
UNDOING MUCH OF THE PROGRESS MADE IN CONFORMING POLICE METHODS TO THE
CONSTITUTION.  I DISSENT. 

/1/  THE TRIAL TRANSCRIPT SHOWS THAT PETITIONER TESTIFIED THAT HE
REMEMBERED MAKING A STATEMENT ON JANUARY 7; THAT HE REMEMBERED A FEW OF
THE QUESTIONS AND ANSWERS; BUT THAT HE DID NOT "REMEMBER GIVING TOO
MANY ANSWERS."  WHEN ASKED ABOUT HIS BAD MEMORY, PETITIONER, WHO HAD
TESTIFIED THAT HE WAS A HEROIN ADDICT, STATED THAT "MY JOINTS WAS DOWN
AND I NEEDED DRUGS." 

/2/  THREE OF THE FIVE JUDGES OF THE APPELLATE DIVISION IN THIS CASE
AGREED THAT THE STATE'S USE OF PETITIONER'S ILLEGALLY OBTAINED
STATEMENT WAS AN ERROR OF CONSTITUTIONAL DIMENSION.  PEOPLE V. HARRIS,
31 APP.DIV.2D 828, 298 N.Y.S.2D 245 (1969).  HOWEVER, ONE OF THE THREE
HELD THAT THE ERROR DID NOT PLAY A MEANINGFUL ROLE IN THE CASE AND WAS
THEREFORE HARMLESS UNDER OUR DECISION IN CHAPMAN V. CALIFORNIA, 386
U.S. 18 (1967).  HE THEREFORE JOINED IN AFFIRMING THE CONVICTION WITH
THE TWO JUDGES WHO WERE OF THE VIEW THAT THERE WAS NO CONSTITUTIONAL
QUESTION INVOLVED.  31 APP.DIV.2D,AT 830, 298 N.Y.S.2D,AT 249.  I
DISAGREE THAT THE ERROR WAS HARMLESS AND SUBSCRIBE TO THE REASONING OF
THE DISSENTING JUDGES, ID., AT 831-732, 298 N.Y.S.2D AT 250: 

"UNDER THE CIRCUMSTANCES OUTLINED ABOVE, I CANNOT AGREE THAT THIS
ERROR OF CONSTITUTIONAL DIMENSION WAS 'HARMLESS BEYOND A REASONABLE
DOUBT' (CHAPMAN V. CALIFORNIA, 386 U.S. 18, 24).  AN ERROR IS NOT
HARMLESS IF 'THERE IS A REASONABLE POSSIBILITY THAT THE EVIDENCE
COMPLAINED OF MIGHT HAVE CONTRIBUTED TO THE CONVICTION' (FAHY V.
CONNECTICUT, 375 U.S. 85, 86-87).  THE BURDEN OF SHOWING THAT A
CONSTITUTIONAL ERROR IS HARMLESS RESTS WITH THE PEOPLE WHO, IN THIS
CASE, HAVE NOT EVEN ATTEMPTED TO ASSUME THAT DEMONSTRATION (CHAPMAN V.
CALIFORNIA, SUPRA).  SURELY, IT CANNOT BE SAID WITH ANY CERTAINTY THAT
THE IMPROPER USE OF DEFENDANT'S STATEMENT DID NOT TIP THE SCALES
AGAINST HIM, ESPECIALLY WHEN HIS CONVICTION RESTS ON THE TESTIMONY OF
THE SAME UNDERCOVER AGENT WHOSE TESTIMONY WAS APPARENTLY LESS THAN
CONVINCING ON THE JANUARY 4 CHARGE (CF. ANDERSON V. NELSON, 390 U.S.
523, 525).  ON THE CONTRARY, IT IS DIFFICULT TO SEE HOW DEFENDANT COULD
NOT HAVE BEEN DAMAGED SEVERELY BY USE OF THE INCONSISTENT STATEMENT IN
A CASE WHICH, IN THE FINAL ANALYSIS, PITTED HIS WORD AGAINST THE
OFFICER'S.  THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL GRANTED." 

THE COURT OF APPEALS AFFIRMED PER CURIAM ON THE AUTHORITY OF ITS
EARLIER OPINION IN PEOPLE V. KULIS, 18 N.Y.2D 318, 221 N.E.2D 541
(1966).  CHIEF JUDGE FULD AND JUDGE KEATING DISSENTED IN KULIS ON THE
GROUND THAT MIRANDA PRECLUDED USE OF THE STATEMENT FOR IMPEACHMENT
PURPOSES, 18 N.Y.2D,AT 323, 221 N.E.2D, AT 542. 

/3/  IT IS THEREFORE UNNECESSARY FOR ME TO CONSIDER PETITIONER'S
ARGUMENT THAT MIRANDA HAS OVERRULED THE NARROW EXCEPTION OF WALDER
ADMITTING IMPEACHING EVIDENCE ON COLLATERAL MATTERS. 

/4/  SIX FEDERAL COURTS OF APPEALS AND APPELLATE COURTS OF 14 STATES
HAVE REACHED THE SAME RESULT.  UNITED STATES V. FOX, 403 F.2D 97 (CA2
1968); UNITED STATES V. PINTO, 394 F.2D 470 (CA3 1968); BREEDLOVE V.
BETO, 404 F.2D 1019 (CA5 1968); GROSHART V. UNITED STATES, 392 F.2D 172
(CA9 1968); BLAIR V. UNITED STATES, 130 U.S.APP.D.C. 322, 401 F.2D 387
(1968); WHEELER V. UNITED STATES, 382 F.2D 998 (CA10 1967); PEOPLE V.
BARRY, 237 CAL.APP.2D 154, 46 CAL.RPTR.  727 (1965), CERT. DENIED, 386
U.S. 1024 (1967); VELARDE V. PEOPLE, 171 COLO. 261, 466 P.2D 919
(1970); STATE V. GALASSO, 217 SO.2D 326 (FLA. 1968); PEOPLE V. LUNA, 37
ILL.2D 299, 226 N.E.2D 586 (1967); FRANKLIN V. STATE, 6 MD.APP.  572,
252 A.2D 487 (1969); PEOPLE V. WILSON, 20 MICH.APP.  410, 174 N.W.2D 79
(1969); STATE V. TURNBOW, 67 N.M. 241, 354 P.2D 533 (1960); STATE V.
CATRETT, 276 N.C. 86, 171 S.E.2D 398 (1970); STATE V. BREWTON, 247
ORE.  241, 422 P.2D 581, CERT. DENIED, 387 U.S. 943 (1967);
COMMONWEALTH V. PADGETT, 428 PA. 229, 237 A.2D 209 (1968); SPANN V.
STATE, 448 S.W.2D 128 (TEX. CR. APP. 1969); CARDWELL V. COMMONWEALTH,
209 VA. 412, 164 S.E.2D 699 (1968); GAERTNER V. STATE, 35 WIS.2D 159,
150 N.W.2D 370 (1967); SEE ALSO KELLY V. KING, 196 SO.2D 525 (MISS. 
1967).  ONLY THREE STATE APPELLATE COURTS HAVE AGREED WITH NEW YORK. 
STATE V. KIMBROUGH, 109 N.J.SUPER.  57, 262 A.2D 232 (1970); STATE V.
BUTLER, 19 OHIO ST.2D 55, 249 N.E.2D 818 (1969); STATE V. GRANT, 77
WASH.2D 47, 459 P.2D 639 (1969). 

JOEL MARTIN AURNOU ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

JAMES J. DUGGAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS CARL A. VERGARI. 

SYBIL H. LANDAU ARGUED THE CAUSE FOR THE DISTRICT ATTORNEY OF NEW
YORK COUNTY AS AMICUS CURIAE URGING AFFIRMANCE.  WITH HER ON THE BRIEF
WERE FRANK S. HOGAN, PRO SE, AND MICHAEL R. JUVILER. 
..END :

















BOILERMAKERS V. HARDEMAN, 401 U.S. 233 


       INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON

          SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO

           V. HARDEMAN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 123.  ARGUED DECEMBER 16, 1970-- DECIDED FEBRUARY 24,

           1971 


RESPONDENT, WHO WAS A MEMBER OF PETITIONER UNION, ASSAULTED THE
BUSINESS MANAGER OF HIS LOCAL FOR ALLEGEDLY FAILING TO REFER HIM FOR A
JOB, AND WAS TRIED FOR THIS CONDUCT BY THE UNION ON CHARGES OF (1)
CREATING DISSENSION AND WORKING AGAINST THE INTEREST AND HARMONY OF THE
LOCAL, WHICH CARRIED A PENALTY OF EXPULSION, AND (2) THREATENING AND
USING FORCE TO RESTRAIN AN OFFICER FROM DISCHARGING THE DUTIES OF HIS
UNION OFFICE, PUNISHABLE "AS WARRANTED BY THE OFFENSE."  HE WAS FOUND
"GUILTY AS CHARGED" AND EXPELLED FOR AN INDEFINITE PERIOD.  HE LATER
BROUGHT SUIT FOR DAMAGES ALLEGING THAT PETITIONER VIOLATED SEC.
101(A)(5) OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT BY
DENYING HIM A FULL AND FAIR HEARING IN THE DISCIPLINARY PROCEEDINGS. 
THE DISTRICT JUDGE FOUND THAT THERE WAS NO TRANSCRIPT EVIDENCE TO
SUPPORT THE CHARGE OF CREATING DISSENSION, AND SINCE THE UNION TRIBUNAL
HAD RETURNED ONLY A GENERAL VERDICT, HELD THAT RESPONDENT WAS DEPRIVED
OF THE STATUTORY "FULL WAS GRANTED TO CONSIDER WHETHER THE SUBJECT
MATTER WAS PRE-EMPTED BECAUSE EXCLUSIVELY WITHIN THE COMPETENCE OF THE
NATIONAL LABOR RELATIONS BOARD, OR, IF NOT, WHETHER THE COURTS BELOW
HAD APPLIED THE PROPER STANDARD OF REVIEW.  HELD: 

1.  THIS ACTION WAS WITHIN THE COMPETENCE OF THE DISTRICT COURT, AS
THE ISSUES HERE ARE WHETHER RESPONDENT WAS DENIED RIGHTS GUARANTEED HIM
BY SEC. 101(A)(5), AND, IF SO, HIS CONSEQUENT ENTITLEMENT, PURSUANT TO
THE FEDERAL STATUTE, TO DAMAGES FOR THAT DENIAL, QUESTIONS THAT ARE
IRRELEVANT TO THE LEGALITY OF CONDUCT UNDER THE NATIONAL LABOR
RELATIONS ACT.  PP. 237-241. 

2.  SECTION 101(A)(5) DOES NOT EMPOWER COURTS TO DETERMINE WHAT
CONDUCT MAY WARRANT DISCIPLINARY ACTION BY A UNION AGAINST ITS
MEMBERS.  PP. 242-245. 

3.  THE STATUTORY "FULL AND FAIR HEARING" REQUIRES THAT THE CHARGING
PARTY PROVIDE SOME EVIDENCE AT THE HEARING TO SUPPORT THE CHARGES, AND
HERE THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE FINDING THAT
RESPONDENT ASSAULTED THE BUSINESS MANAGER AS CHARGED.  PP. 245-247. 

420 F.2D 485, REVERSED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BLACK, HARLAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  WHITE, J., FILED A CONCURRING OPINION, POST, P. 247.  DOUGLAS,
J., FILED A DISSENTING OPINION, POST, P. 247. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

(HEREAFTER LMRDA) PROVIDES THAT A UNION MEMBER WHO CHARGES THAT HIS
UNION VIOLATED HIS RIGHTS UNDER TILTE I OF THE ACT MAY BRING A CIVIL
ACTION AGAINST THE UNION IN A DISTRICT COURT OF THE UNITED STATES FOR
APPROPRIATE RELIEF.  /1/  RESPONDENT WAS EXPELLED FROM MEMBERSHIP IN
PETITIONER UNION AND BROUGHT THIS ACTION UNDER SEC. 102 IN THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF ALABAMA.  HE ALLEGED THAT IN
EXPELLING HIM THE PETITIONER VIOLATED SEC. 101(A)(5) OF THE ACT, 73
STAT. 523, 29 U.S.C. 411(A)(5) WHICH PROVIDES:  "NO MEMBER OF ANY LABOR
ORGANIZATION MAY BE FINED, SUSPENDED, EXPELLED, OR OTHERWISE
DISCIPLINED EXCEPT FOR NONPAYMENT OF DUES BY SUCH ORGANIZATION OR BY
ANY OFFICER THEREOF UNLESS SUCH MEMBER HAS BEEN (A) SERVED WITH WRITTEN
SPECIFIC CHARGES; (B) GIVEN A REASONABLE TIME TO PREPARE HIS DEFENSE;
(C) AFFORDED A FULL AND FAIR HEARING."  A JURY AWARDED RESPONDENT
DAMAGES OF $152,150.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
AFFIRMED.  420 F.2D 485 (1969).  /2/  WE GRANTED CERTIORARI LIMITED TO
THE QUESTIONS WHETHER THE SUBJECT MATTER OF THE SUIT WAS PRE-EMPTED
BECAUSE EXCLUSIVELY WITHIN THE COMPETENCE OF THE NATIONAL LABOR
RELATIONS BOARD AND, IF NOT PRE-EMPTED, WHETHER THE COURTS BELOW HAD
APPLIED THE PROPER STANDARD OF REVIEW TO THE UNION PROCEEDINGS, 398
U.S. 926 (1970).  WE REVERSE. 

THE CASE ARISES OUT OF EVENTS IN THE EARLY PART OF OCTOBER 1960. 
RESPONDENT, GEORGE HARDEMAN, IS A BOILERMAKER.  HE WAS THEN A MEMBER OF
PETITIONER'S LOCAL LODGE 112.  ON OCTOBER 3, HE WENT TO THE UNION
HIRING HALL TO SEE HERMAN WISE, BUSINESS MANAGER OF THE LOCAL LODGE AND
THE OFFICIAL RESPONSIBLE FOR REFERRING WORKMEN FOR JOBS.  HARDEMAN HAD
TALKED TO A FRIED OF HIS, AN EMPLOYER WHO HAD PROMISED TO ASK FOR HIM
BY NAME FOR A JOB IN THE VICINITY.  HE SOUGHT ASSURANCE FROM WISE THAT
HE WOULD BE REFERRED FOR THE JOB.  WHEN WISE REFUSED TO MAKE A DEFINITE
COMMITMENT, HARDEMAN THREATENED VIOLENCE IF NO WORK WAS FORTHCOMING IN
THE NEXT FEW DAYS. 

ON OCTOBER 4, HARDEMAN RETURNED TO THE HIRING HALL AND WAITED FOR A
REFERRAL.  NONE WAS FORTHCOMING.  THE NEXT DAY, IN HIS WORDS, HE "WENT
TO THE HALL . . . AND WAITED FROM THE TIME THE HALL OPENED UNTIL WE HAD
THE TROUBLE.  I TRIED TO MAKE UP MY MIND WHAT TO DO, WHETHER TO SUE THE
LOCAL OR WISE OR BEAT HELL OUT OF WISE, AND THEN I MADE UP MY MIND." 
WHEN WISE CAME OUT OF HIS OFFICE TO GO TO A LOCAL JOBSITE, AS REQUIRED
BY HIS DUTIES AS BUSINESS MANAGER, HARDEMAN HANDED HIM A COPY OF A
TELEGRAM ASKING FOR HARDEMAN BY NAME.  AS WISE WAS READING THE
TELEGRAM, HARDEMAN BEGAN PUNCHING HIM IN THE FACE. 

HARDEMAN WAS TRIED FOR THIS CONDUCT ON CHARGES OF CREATING
DISSENSION AND WORKING AGAINST THE INTEREST AND HARMONY OF THE LOCAL
LODGE, /3/  AND OF THREATENING AND USING FORCE TO RESTRAIN AN OFFICER
OF THE LOCAL LODGE FROM PROPERLY DISCHARGING THE DUTIES OF HIS OFFICE. 
/4/  THE TRIAL COMMITTEE FOUND HIM "GUILTY AS CHARGED," AND THE LOCAL
LODGE SUSTAINED THE FINDING AND VOTED HIS EXPULSION FOR AN INDEFINITE
PERIOD.  INTERNAL UNION REVIEW OF THIS ACTION, INSTITUTED BY HARDEMAN,
MODIFIED NEITHER THE VERDICT NOR THE PENALTY.  FIVE YEARS LATER,
HARDEMAN BROUGHT THIS SUIT ALLEGING THAT PETITIONER VIOLATED SEC.
101(A)(5) BY DENYING HIM A FULL AND FAIR HEARING IN THE UNION
DISCIPLINARY PROCEEDINGS. 

        I 

WE CONSIDER FIRST THE UNION'S CLAIM THAT THE SUBJECT MATTER OF THIS
LAWSUIT IS, IN THE FIRST INSTANCE, WITHIN THE EXCLUSIVE COMPETENCE OF
THE NATIONAL LABOR RELATIONS BOARD.  THE UNION ARGUES THAT THE GRAVAMEN
OF HARDEMAN'S COMPLAINT-- WHICH DID NOT SEEK REINSTATEMENT, BUT ONLY
DAMAGES FOR WRONGFUL EXPULSION, CONSISTING OF LOSS OF INCOME, LOSS OF
PENSION AND INSURANCE RIGHTS, MENTAL ANGUISH AND PUNITIVE DAMAGES-- IS
DISCRIMINATION AGAINST HIM IN JOB REFERRALS; THAT ANY SUCH CONDUCT ON
THE PART OF THE UNION IS AT THE VERY LEAST ARGUABLY AN UNFAIR LABOR
PRACTICE UNDER SECS. 8(B)(1)(A) AND 8(B)(2) OF THE NATIONAL LABOR
RELATIONS ACT, 61 STAT. 141, AS AMENDED, 29 U.S.C. 158(B)(1)(A),
158(B)(2); AND THAT IN SUCH CIRCUMSTANCES, "THE FEDERAL COURTS MUST
DEFER TO THE EXCLUSIVE COMPETENCE OF THE NATIONAL LABOR RELATIONS BOARD
IF THE DANGER OF . . . INTERFERENCE WITH NATIONAL POLICY IS TO BE
AVERTED."  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236,
245 (1959); SEE LOCAL 100, JOURNEYMEN V. BORDEN, 373 U.S. 690 (1963). 

WE THINK THE UNION'S ARGUMENT IS MISDIRECTED.  HARDEMAN'S COMPLAINT
ALLEGED THAT HIS EXPULSION WAS UNLAWFUL UNDER SEC. 101(A)(5), AND
SOUGHT COMPENSATION FOR THE CONSEQUENCES OF THE CLAIMED WRONGFUL
EXPULSION.  THE CRITICAL ISSUE PRESENTED BY HARDEMAN'S COMPLAINT WAS
WHETHER THE UNION DISCIPLINARY PROCEEDINGS HAD DENIED HIM A FULL AND
FAIR HEARING WITHIN THE MEANING OF SEC. 101(A)(5)(C).  /5/  UNLESS HE
COULD ESTABLISH THIS CLAIM, HARDEMAN WOULD BE OUT OF COURT.  WE HOLD
THAT THIS CLAIM WAS NOT WITHIN THE EXCLUSIVE COMPETENCE OF THE NATIONAL
LABOR RELATIONS BOARD. 

     "'THE DOCTRINE OF PRIMARY JURISDICTION . . . APPLIES WHERE A

  CLAIM IS ORIGINALLY COGNIZABLE IN THE COURTS, AND COMES INTO PLAY

  WHENEVER ENFORCEMENT OF THE CLAIM REQUIRES THE RESOLUTION OF

  ISSUES WHICH, UNDER A REGULATORY SCHEME, HAVE BEEN PLACED WITHIN

  THE SPECIAL COMPETENCE OF AN ADMINISTRATIVE BODY; IN SUCH A CASE

THE JUDICIAL PROCESS IS NSUSPENDED PENDING REFERRAL OF SUCH

  ISSUES TO THE ADMINISTRATIVE BODY FOR ITS VIEWS.'  UNITED STATES

  V. WESTERN PAC. R. CO., 352 U.S. 59, 63-64.  THE DOCTRINE IS

  BASED ON THE PRINCIPLE 'THAT IN CASES RAISING ISSUES OF FACT NOT

  WITHIN THE CONVENTIONAL EXPERIENCE OF JUDGES OR CASES REQUIRING

  THE EXERCISE OF ADMINISTRATIVE DISCRETION, AGENCIES CREATED BY

  CONGRESS FOR REGULATING THE SUBJECT MATTER SHOULD NOT BE PASSED

  OVER,' FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570, 574,

  AND 'REQUIRES JUDICIAL ABSTENTION IN CASES WHERE PROTECTION OF

 THE INTEGRITY OF A REGULATORY SCHEME DICTATES PRELIMINARY RESORT

  TO THE AGENCY WHICH ADMINISTERS THE SCHEME,' UNITED STATES V.

  PHILADELPHIA NAT. BANK, 374 U.S. 321, 353."  LOCAL 189,

  AMALGAMATED MEAT CUTTERS V. JEWEL TEA CO., 381 U.S. 676, 684-685

  (1965) (OPINION OF WHITE, J., ANNOUNCING JUDGMENT). 

THOSE FACTORS SUGGESTING THAT RESORT MUST BE HAD TO THE ADMINISTRATIVE
PROCESS ARE ABSENT FROM THE PRESENT CASE.  THE FAIRNESS OF AN INTERNAL
UNION DISCIPLINARY PROCEEDING IS HARDLY A QUESTION BEYOND "THE
CONVENTIONAL EXPERIENCE OF JUDGES," NOR CAN IT BE SAID TO RAISE ISSUES
"WITHIN THE SPEICIAL COMPETENCE" OF THE NLRB.  SEE NLRB V. ALLIS
CHALMERS MFG. CO., 388 U.S. 175, 181, 193-194 (1967).  AS WE NOTED IN
THAT CASE, THE 86TH CONGRESS WHICH ENACTED SEC. 101(A)(5) WAS "PLAINLY
OF THE VIEW" THAT THE PROTECTIONS EMBODIED THEREIN WERE NEW MATERIAL IN
THE BODY OF FEDERAL LABOR LAW.  288 U.S.,AT 194.  AND THAT SAME
CONGRESS EXPLICITLY REFERRED CLAIMS UNDER SEC. 101(A)(5), NOT TO THE
NLRB, BUT TO THE FEDERAL DISTRICT COURTS.  THIS IS MADE EXPLICIT IN THE
OPENING SENTENCE OF SEC. 102:  "ANY PERSON WHOSE RIGHTS SECURED BY THE
PROVISIONS OF THIS TITLE HAVE BEEN INFRINGED BY ANY VIOLATION OF THIS
TITLE MAY BRING A CIVIL ACTION IN A DISTRICT COURT OF THE UNITED STATES
FOR SUCH RELIEF (INCLUDING INJUNCTIONS) AS MAY BE APPROPRIATE."  OF
COURSE, "(THE PURPOSE OF CONGRESS IS THE ULTIMATE TOUCHSTONE."  RETAIL
CLERKS LOCAL 1625 V. SCHERMERHORN, 375 U.S. 96, 103 (1963).  AND IN
SEC. 102 CONGRESS HAS CLEARLY INDICATED A PURPOSE TO REFER CLAIMS
REGARDING VIOLATION OF SEC. 101(A)(5) TO THE DISTRICT COURTS. 

THE UNION ARGUES THAT HARDEMAN'S SUIT SHOULD NEVERTHELESS HAVE BEEN
DISMISSED BECAUSE HE DID NOT SEEK AN INJUNCTION RESTORING HIM TO
MEMBERSHIP, AND BECAUSE HE DID SEEK DAMAGES FOR LOSS OF EMPLOYMENT SAID
TO BE THE CONSEQUENCE OF HIS EXPULSION FROM THE UNION.  TAKEN TOGETHER,
THESE FACTORS ARE SAID TO SHIFT THE PRIMARY FOCUS OF THE ACTION FROM A
REVIEW OF HARDEMAN'S EXPULSION TO A REVIEW OF ALLEGED UNION
DISCRIMINATION AGAINST HIM IN JOB REFERRALS.  SINCE THIS IS A MATTER
NORMALLY WITHIN THE EXCLUSIVE COMPETENCE OF THE NLRB, SEE LOCAL 100,
JOURNEYMEN V. BORDEN, 373 U.S.,AT 695-696, THE UNION ARGUES THAT
HARDEMAN'S SUIT WAS BEYOND THE COMPETENCE OF THE DISTRICT COURT. 

THE ARGUMENT HAS NO MERIT.  TO BEGIN WITH, THE LANGUAGE OF SEC. 102
DOES NOT APPEAR TO MAKE THE AVAILABILITY OF DAMAGES TURN UPON WHETHER
AN INJUNCTION IS REQUESTED AS WELL.  IF ANYTHING, SEC. 102 CONTEMPLATES
THAT DAMAGES WILL BE THE USUAL, AND INJUNCTIONS THE EXTRAORDINARY FORM
OF RELIEF.  REQUIRING THAT INJUNCTIVE RELIEF BE SOUGHT AS A
PRECONDITION TO DAMAGES WOULD HAVE LITTLE EFFECT OTHER THAN TO FORCE
PLAINTIFFS, AS A MATTER OF COURSE, TO ADD A FEW WORDS TO THEIR
COMPLAINTS SEEKING AN UNDESIRED INJUNCTION.  WE SEE NO REASON TO IMPORT
INTO SEC. 102 SO TRIVIAL A REQUIREMENT. 

NOR ARE OUR PRIOR CASES AUTHORITY FOR SUCH A RESULT.  WE HAVE
REPEATEDLY HELD, OF COURSE, THAT STATE LAW MAY NOT REGULATE CONDUCT
EITHER PROTECTED OR PROHIBITED BY THE NATIONAL LABOR RELATIONS ACT. 
LOCAL 100, JOURNEYMEN V. BORDEN, SUPRA; SAN DIEGO BUILDING TRADES
COUNCIL V. GARMON, 359 U.S.,AT 244; WEBER V. ANHEUSER-BUSCH, INC., 348
U.S. 468, 480-481 (1955); GARNER V. TEAMSTERS UNION, 346 U.S. 485, 490
491 (1953).  WHERE IT HAS NOT BEEN CLEAR WHETHER PARTICULAR CONDUCT IS
PROTECTED, PROHIBITED, OR LEFT TO STATE REGULATION BY THAT ACT, WE HAVE
LIKEWISE REQUIRED COURTS TO STAY THEIR HAND, FOR "COURTS ARE NOT
PRIMARY TRIBUNALS TO ADJUDICATE SUCH ISSUES.  IT IS ESSENTIAL TO THE
ADMINISTRATION OF THE ACT THAT THESE DETERMINATIONS BE LEFT IN THE
FIRST INSTANCE TO THE NATIONAL LABOR RELATIONS BOARD."  BUILDING TRADES
COUNCIL V. GARMON, SUPRA, AT 244-245.  NOR MAY COURTS INTERVENE IN SUCH
MATTERS EVEN TO APPLY THE NATIONAL LABOR RELATIONS ACT, EXCEPT BY THE
NORMAL MECHANISM OF REVIEW OF ACTIONS OF THE NLRB.  FOR RECOGNIZING
THAT "(A) MULTIPLICITY OF TRIBUNALS AND A DIVERSITY OF PROCEDURES ARE
QUITE AS APT TO PRODUCE INCOMPATIBLE OR CONFLICTING ADJUDICATIONS AS
ARE DIFFERENT RULES OF SUBSTANTIVE LAW," GARNER V. TEAMSTERS UNION,
SUPRA, AT 490-491, CONGRESS CONFIDED TO THE NLRB THE PRIMARY POWER OF
INTERPRETATION AND APPLICATION OF THE ACT.  SEE GUSS V. UTAH LABOR
RELATIONS BOARD, 353 U.S. 1 (1957). 

THE PRESENT CASE, HOWEVER, IMPLICATES NONE OF THE PRINCIPLES
DISCUSSED ABOVE.  THERE IS NO ATTEMPT, IN THIS LAWSUIT, TO APPLY STATE
LAW TO MATTERS PRE-EMPTED BY FEDERAL AUTHORITY.  NOR IS THERE AN
ATTEMPT TO APPLY FEDERAL LAW OF GENERAL APPLICATION, WHICH IS LIMITED
IN THE PARTICULAR CIRCUMSTANCES BY THE NATIONAL LABOR RELATIONS ACT. 
NOR IS THERE AN ATTEMPT TO HAVE THE DISTRICT COURT ENFORCE THE
PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT ITSELF, WITHOUT GUIDANCE
FROM THE NLRB.  AS WE HAVE SAID, THE CRITICAL QUESTION IN THIS ACTION
IS WHETHER HARDEMAN WAS AFFORDED THE RIGHTS GUARANTEED HIM BY SEC.
101(A)(5) OF THE LMRDA.  IF HE WAS DENIED THEM, CONGRESS HAS SAID THAT
HE IS ENTITLED TO DAMAGES FOR THE CONSEQUENCES OF THAT DENIAL.  SINCE
THESE QUESTIONS ARE IRRELEVANT TO THE LEGALITY OF CONDUCT UNDER THE
NATIONAL LABOR RELATIONS ACT, THERE IS NO DANGER OF CONFLICTING
INTERPRETATION OF ITS PROVISIONS.  AND SINCE THE LAW APPLIED IS FEDERAL
LAW EXPLICITLY MADE APPLICABLE TO SUCH CIRCUMSTANCES BY CONGRESS, THERE
IS NO DANGER THAT STATE LAW MAY COME IN THROUGH THE BACK DOOR TO
REGULATE CONDUCT THAT HAS BEEN REMOVED BY CONGRESS FROM STATE CONTROL. 
ACCORDINGLY, THIS ACTION WAS WITHIN THE COMPETENCE OF THE DISTRICT
COURT.  /6/

        II 

TWO CHARGES WERE BROUGHT AGAINST HARDEMAN IN THE UNION DISCIPLINARY
PROCEEDINGS.  HE WAS CHARGED WITH VIOLATION OF ART. XIII, SEC. 1, OF
THE SUBORDINATE LODGE CONSTITUTION, WHICH FORBIDS ATTEMPTING TO CREATE
DISSENSION OR WORKING AGAINST THE INTEREST AND HARMONY OF THE UNION,
AND CARRIES A PENALTY OF EXPULSION.  /7/  HE WAS ALSO CHARGED WITH
VIOLATION OF ART. XII, SEC. 1, OF THE SUBORDINATE LODGE BY-LAWS, WHICH
FORBIDS THE THREAT OR USE OF FORCE AGAINST ANY OFFICER OF THE UNION IN
ORDER TO PREVENT HIM FROM PROPERLY DISCHARGING THE DUTIES ON HIS
OFFICE; VIOLATION MAY BE PUNISHED "AS WARRANTED BY THE OFFENSE."  /8/
HARDEMAN'S CONVICTION ON BOTH CHARGES WAS UPHELD IN INTERNAL UNION
PROCEDURES FOR REVIEW. 

THE TRIAL JUDGE INSTRUCTED THE JURY THAT "WHETHER OR NOT HE
(RESPONDENT) WAS RIGHTFULLY OR WRONGFULLY DISCHARGED OR EXPELLED IS A
PURE QUESTION OF LAW FOR ME TO DETERMINE."  HE ASSUMED, BUT DID NOT
DECIDE, THAT THE TRANSCRIPT OF THE UNION DISCIPLINARY HEARING CONTAINED
EVIDENCE ADEQUATE TO SUPPORT CONVICTION OF VIOLATING ART. XII.  HE
HELD, HOWEVER, THAT THERE WAS NO EVIDENCE AT ALL IN THE TRANSCRIPT OF
THE UNION DISCIPLINARY PROCEEDINGS TO SUPPORT THE CHARGE OF VIOLATING
ART. XIII.  THIS HOLDING APPEARS TO HAVE BEEN BASED ON THE FIFTH
CIRCUIT'S DECISION IN BOILERMAKERS V. BRASWELL, 388 F.2D 193 (CA5
1968).  THERE THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAD REASONED
THAT "PENAL PROVISIONS IN UNION CONSTITUTIONS MUST BE STRICTLY
CONSTRUED,"  /9/  AND THAT AS SO CONSTRUED ART. XIII WAS DIRECTED ONLY
TO "THREATS TO THE UNION AS AN ORGANIZATION AND TO THE EFFECTIVE
CARRYING OUT OF THE UNION'S AIMS," NOT TO MERELY PERSONAL
ALTERCATIONS.  388 F.2D,AT 199.  SINCE THE UNION TRIBUNAL HAD RETURNED
ONLY A GENERAL VERDICT, AND SINCE ONE OF THE CHARGES WAS THOUGHT TO BE
SUPPORTED BY NO EVIDENCE WHATSOEVER, THE TRIAL JUDGE HELD THAT HARDEMAN
HAD BEEN DEPRIVED OF THE FULL AND FAIR HEARING GUARANTEED BY SEC.
101(A)(5).  /10/  THE COURT OF APPEALS AFFIRMED, SIMPLY CITING
BRASWELL.  420 F.2D 485 (CA5 1969).     WE FIND NOTHING IN EITHER THE
LANGUAGE OR THE LEGISLATIVE HISTORY OF SEC. 101(A)(5) THAT COULD
JUSTIFY SUCH A SUBSTITUTION OF JUDICIAL FOR UNION AUTHORITY TO
INTERPRET THE UNION'S REGULATIONS IN ORDER TO DETERMINE THE SCOPE OF
OFFENSES WARRANTING DISCIPLINE OF UNION MEMBERS.  SECTION 101(A)(5)
BEGAN LIFE AS A FLOOR AMENDMENT TO S. 1555, THE KENNEDY-ERVIN BILL, IN
THE 86TH CONGRESS.  AS PROPOSED BY SENATOR MCCLELLAN, AND AS ADOPTED BY
THE SENATE ON APRIL 22, 1959, THE AMENDMENT WOULD HAVE FORBIDDEN
DISCIPLINE OF UNION MEMBERS "EXCEPT FOR BREACH OF A PUBLISHED WRITTEN
RULE OF (THE UNION)."  105 CONG.REC.  6476, 6492-6493.  BUT THIS
LANGUAGE DID NOT LONG SURVIVE.  TWO DAYS LATER, A SUBSTITUTE AMENDMENT
WAS OFFERED BY SENATOR KUCHEL, WHO EXPLAINED THAT FURTHER STUDY OF THE
MCCLELLAN AMENDMENT HAD RAISED "SOME RATHER VEXING QUESTIONS."  ID., AT
6720.  THE KUCHEL SUBSTITUTE, ADOPTED THE FOLLOWING DAY, DELETED THE
REQUIREMENT THAT CHARGES BE BASED UPON A PREVIOUSLY PUBLISHED, WRITTEN
UNION RULE; IT TRANSFORMED SENATOR MCCLELLAN'S AMENDMENT, IN RELEVANT
PART, INTO THE PRESENT LANGUAGE OF SEC. 101(A)(5).  ID., AT 6720,
6727.  AS SO 6745.  IDENTICAL LANGUAGE WAS ADOPTED BY THE HOUSE, ID.,
AT 15884, 15891, AND APPEARS IN THE STATUTE AS FINALLY ENACTED. 

THE CONGRESS UNDERSTOOD THAT SENATOR KUCHEL'S AMENDMENT WAS INTENDED
TO MAKE SUBSTANTIVE CHANGES IN SENATOR MCCLELLAN'S PROPOSAL.  SENATOR
KENNEDY HAD SPECIFICALLY OBJECTED TO THE MCCLELLAN AMENDMENT BECAUSE 

     "IN THE CASE OF . . . THE . . . OFFICIAL WHO BRIBED A JUDGE,

  UNLESS THERE WERE A SPECIFIC PROHIBITION AGAINST BRIBERY OF

  JUDICIAL OFFICERS WRITTEN INTO THE CONSTITUTION OF THE UNION,

  THEN NO UNION COULD TAKE DISCIPLINARY ACTION AGAINST (AN) OFFICER

OR MEMBER GUILTY OF BRIBERY. 

        .          .     .          . 

     "IT SEEMS TO ME THAT WE CAN TRUST UNION OFFICERS TO RUN THEIR

  AFFAIRS BETTER THAN THAT."  ID., AT 6491. 

SENATOR KUCHEL DESCRIBED HIS SUBSTITUTE AS MERELY PROVIDING "THE USUAL
REASONABLE CONSTITUTIONAL BASIS" FOR UNION DISCIPLINARY PROCEEDINGS:
UNION MEMBERS WERE TO HAVE "CONSTITUTIONALLY REASONABLE NOTICE AND A
REASONABLE HEARING."  ID., AT 6720.  AFTER THE KUCHEL AMENDMENT PASSED
THE SENATE, SENATOR GOLDWATER EXPLAINED IT TO THE HOUSE COMMITTEE ON
LABOR AND EDUCATION AS FOLLOWS: 

     "(THE BILL OF RIGHTS IN THE SENATE BILL REQUIRES THAT THE
UNION

  MEMBER BE SERVED WITH WRITTEN SPECIFIC CHARGES PRIOR TO ANY

  DISCIPLINARY PROCEEDINGS BUT IT DOES NOT REQUIRE THAT THESE

  CHARGES, TO BE VALID, MUST BE BASED ON ACTIVITY THAT THE UNION

  HAD PROSCRIBED PRIOR TO THE UNION MEMBER HAVING ENGAGED IN SUCH

  ACTIVITY."  LABOR-MANAGEMENT REFORM LEGISLATION, HEARINGS BEFORE

  A JOINT SUBCOMMITTEE OF THE HOUSE COMMITTEE ON EDUCATION AND

  LABOR, 86TH CONG., 1ST SESS., PT. 4, P. 1595 (1959). 

AND SENATOR MCCLELLAN'S TESTIMONY WAS TO THE SAME EFFECT.  ID., PT. 5,
PP. 2235-2236, 2251, 2285. 

WE THINK THAT THIS IS SUFFICIENT TO INDICATE THAT SEC. 101(A)(5) WAS
NOT INTENDED TO AUTHORIZE COURTS TO DETERMINE THE SCOPE OF OFFENSES FOR
WHICH A UNION MAY DISCIPLINE ITS MEMBERS.  /11/  AND IF A UNION MAY
DISCIPLINE ITS MEMBERS FOR OFFENSES NOT PROSCRIBED BY WRITTEN RULES AT
ALL, IT IS SURELY A FUTILE EXERCISE FOR A COURT TO CONSTRUE THE WRITTEN
RULES IN ORDER TO DETERMINE WHETHER PARTICULAR CONDUCT FALLS WITHIN OR
WITHOUT THEIR SCOPE. 

OF COURSE, SEC. 101(A)(5)(A) REQUIRES THAT A MEMBER SUBJECT TO
DISCIPLINE BE "SERVED WITH WRITTEN SPECIFIC CHARGES."  THESE CHARGES
MUST BE, IN SENATOR MCCLELLAN'S WORDS, "SPECIFIC ENOUGH TO INFORM THE
ACCUSED MEMBER OF THE OFFENSE THAT HE HAS ALLEGEDLY COMMITTED."  /12/
WHERE, AS HERE, THE UNION'S CHARGES MAKE REFERENCE TO SPECIFIC WRITTEN
PROVISIONS, SEC. 101(A)(5)(A) OBVIOUSLY EMPOWERS THE FEDERAL COURTS TO
EXAMINE THOSE PROVISIONS AND DETERMINE WHETHER THE UNION MEMBER HAD
BEEN MISLED OR OTHERWISE PREJUDICED IN THE PRESENTATION OF HIS
DEFENSE.  BUT IT GIVES COURTS NO WARRANT TO SCRUTINIZE THE UNION
REGULATIONS IN ORDER TO DETERMINE WHETHER PARTICULAR CONDUCT MAY BE
PUNISHED AT ALL. 

RESPONDENT DOES NOT SUGGEST, AND WE CANNOT DISCERN, ANY POSSIBILITY
OF PREJUDICE IN THE PRESENT CASE.  ALTHOUGH THE NOTICE OF CHARGES WITH
WHICH HE WAS SERVED DOES NOT APPEAR AS SUCH IN THE RECORD, THE
TRANSCRIPT OF THE UNION HEARING INDICATES THAT THE NOTICE DID NOT
CONFINE ITSELF TO A MERE STATEMENT OR CITATION OF THE WRITTEN
REGULATIONS THAT HARDEMAN WAS SAID TO HAVE VIOLATED:  THE NOTICE
APPEARS TO HAVE CONTAINED A DETAILED STATEMENT OF THE FACTS RELATING TO
THE FIGHT THAT FORMED THE BASIS FOR THE DISCIPLINARY ACTION.  /13/

        III 

THERE REMAINS ONLY THE QUESTION WHETHER THE EVIDENCE IN THE UNION
DISCIPLINARY PROCEEDING WAS SUFFICIENT TO SUPPORT THE FINDING OF
GUILT.  SECTION 101(A)(5)(C) OF THE LMRDA GUARANTEES UNION MEMBERS A
"FULL AND FAIR" DISCIPLINARY HEARING, AND THE PARTIES AND THE LOWER
FEDERAL COURTS ARE IN FULL AGREEMENT THAT THIS GUARANTEE REQUIRES THE
CHARGING PARTY TO PROVIDE SOME EVIDENCE AT THE DISCIPLINARY HEARING TO
SUPPORT THE CHARGES MADE.  /14/  THIS IS THE PROPER STANDARD OF
JUDICIAL REVIEW.  WE HAVE REPEATEDLY HELD THAT CONVICTION ON CHARGES
UNSUPPORTED BY ANY EVIDENCE IS A DENIAL OF DUE PROCESS, THOMPSON V.
LOUISVILLE, 362 U.S. 199, 206 (1960); SCHWARE V. BOARD OF BAR
EXAMINERS, 353 U.S. 232, 246-247 (1957); VAJTAUER V. COMMISSIONER OF
IMMIGRATION, 273 U.S. 103, 106 (1927); TISI V. TOD, 264 U.S. 131, 133
134 (1924); AND WE FEEL THAT SEC. 101(A)(5)(C) MAY FAIRLY BE SAID TO
IMPORT A SIMILAR REQUIREMENT INTO UNION DISCIPLINARY PROCEEDINGS. 
SENATOR KUCHEL, WHO FIRST INTRODUCED THE PROVISION, CHARACTERIZED IT ON
THE SENATE FLOOR AS REQUIRING THE "USUAL REASONABLE CONSTITUTIONAL
BASIS" FOR DISCIPLINARY ACTION, 105 CONG.REC.  6720, AND ANY LESSER
STANDARD WOULD MAKE USELESS SEC. 101(A)(5)(A)'S REQUIREMENT OF WRITTEN,
SPECIFIC CHARGES.  A STRICTER STANDARD, ON THE OTHER HAND, WOULD BE
INCONSISTENT WITH THE APPARENT CONGRESSIONAL INTENT TO ALLOW UNIONS TO
GOVERN THEIR OWN AFFAIRS, AND WOULD REQUIRE COURTS TO JUDGE THE
CREDIBILITY OF WITNESSES ON THE BASIS OF WHAT WOULD BE AT BEST A COLD
RECORD.  /15/ 

APPLYING THIS STANDARD TO THE PRESENT CASE, WE THINK THERE IS NO
QUESTION THAT THE CHARGES WERE ADEQUATELY SUPPORTED.  RESPONDENT WAS
CHARGED WITH HAVING ATTACKED WISE WITHOUT WARNING, AND WITH CONTINUING
TO BEAT HIM FOR SOME TIME.  WISE SO TESTIFIED AT THE DISCIPLINARY
HEARING, AND HIS TESTIMONY WAS FULLY CORROBORATED BY ONE OTHER WITNESS
TO THE ALTERCATION.  EVEN HARDEMAN, ALTHOUGH HE CLAIMED HE WAS
THEREAFTER HELD AND BEATEN, ADMITTED HAVING STRUCK THE FIRST BLOW.  ON
SUCH A RECORD THERE IS NO QUESTION BUT THAT THE CHARGES WERE SUPPORTED
BY "SOME EVIDENCE." 

              REVERSED. 

/1/  SECTION 102 OF THE ACT, 73 STAT. 523, 29 U.S.C. 412, PROVIDES: 

"ANY PERSON WHOSE RIGHTS SECURED BY THE PROVISIONS OF THIS TITLE
HAVE BEEN INFRINGED BY ANY VIOLATION OF THIS TITLE MAY BRING A CIVIL
ACTION IN A DISTRICT COURT OF THE UNITED STATES FOR SUCH RELIEF
(INCLUDING INJUNCTIONS) AS MAY BE APPROPRIATE.  ANY SUCH ACTION OF THE
UNITED STATES FOR THE DISTRICT WHERE THE ALLEGED VIOLATION OCCURRED, OR
WHERE THE PRINCIPAL OFFICE OF SUCH LABOR ORGANIZATION IS LOCATED." 

/2/  THE AFFIRMANCE WAS ON THE BASIS OF BOILERMAKERS V. BRASWELL,
388 F.2D 193 (CA5 1968). 

/3/  ARTICLE XIII, SEC. 1, OF THE SUBORDINATE LODGE CONSTITUTION
THEN IN FORCE PROVIDED: 

"ANY MEMBER WHO ENDEAVORS TO CREATE DISSENSION AMONG THE MEMBERS; OR
WHO WORKS AGAINST THE INTEREST AND HARMONY OF THE INTERNATIONAL
BROTHERHOOD OR OF ANY DISTRICT OR SUBORDINATE LODGE; WHO ADVOCATES OR
ENCOURAGES A DIVISION OF THE FUNDS, OR THE DISSOLUTION OF ANY DISTRICT
OR SUBORDINATE LODGE, OR THE SEPARATION OF ANY DISTRICT OR SUBORDINATE
LODGE FROM THE INTERNATIONAL BROTHERHOOD; WHO SUPPORTS OR BECOMES A
MEMBER OF ANY DUAL OR SUBVERSIVE ORGANIZATION WHICH SHALL BE HOSTILE TO
THE INTERNATIONAL BROTHERHOOD OR TO ANY OF ITS SUBORDINATE LODGES, OR
WHICH IS ANTAGONISTIC TO THE PRINCIPLES AND PURPOSES OF THE
INTERNATIONAL BROTHERHOOD, SHALL UPON CONVICTION THEREOF BE PUNISHED BY
EXPULSION FROM THE INTERNATIONAL BROTHERHOOD." 

/4/  ARTICLE XII, SEC. 1, OF THE SUBORDINATE LODGE BY-LAWS THEN IN
FORCE PROVIDED THAT:  "IT SHALL BE A VIOLATION OF THESE BY-LAWS FOR ANY
MEMBER THROUGH THE USE OF FORCE OR VIOLENCE TO RESTRAIN, COERCE OR
INTIMIDATE, OR ATTEMPT TO RESTRAIN, COERCE OR INTIMIDATE ANY OFFICIAL
OF THIS INTERNATIONAL BROTHERHOOD OR SUBORDINATE LODGE TO PREVENT OR
ATTEMPT TO PREVENT HIM FROM PROPERLY DISCHARGING THE DUTIES OF HIS
OFFICE."  VIOLATORS OF ART. XII ARE TO "BE PUNISHED AS WARRANTED BY THE
OFFENSE." 

/5/  HARDEMAN'S COMPLAINT DID NOT CLAIM THAT THE CHARGES WERE
INSUFFICIENTLY SPECIFIC, OR THAT HE DID NOT HAVE ADEQUATE TIME TO
PREPARE HIS DEFENSE IN THE UNION PROCEEDINGS. 

/6/  SEE BOILERMAKERS V. BRASWELL, 388 F.2D,AT 195-197.  ACCORD,
REKANT V. SHOCHTAY-GASOS LOCAL 446, 320 F.2D 271, 273-275 (CA3 1963);
PARKS V. ELECTRICAL WORKERS, 314 F.2D 886, 922-923 (CA4 1963); ADDISON
V. MACHINISTS, 300 F.2D 863 (CA9 1962); MACHINISTS V. KING, 335 F.2D
340, 346-347 (CA9 1964). 

/7/  SEE N. 3, SUPRA. 

/8/  SEE N. 4, SUPRA. 

/9/  388 F.2D,AT 198, QUOTING ALLEN V. THEATRICAL EMPLOYEES, 338
F.2D 309, 316 (CA5 1964). 

/10/  THIS REASONING WAS NOTED BUT NOT SPECIFICALLY ENDORSED IN
BRASWELL, 388 F.2D,AT 198. 

/11/  STATE LAW, IN MANY CIRCUMSTANCES, MAY GO FURTHER.  SEE SUMMERS,
THE LAW OF UNION DISCIPLINE:  WHAT THE COURTS DO IN FACT, 70 YALE L.J.
175 (1960).  BUT CONGRESS, WHICH PRESERVED STATE LAW REMEDIES BY SEC.
103 OF THE LMRDA, 29 U.S.C. 413, WAS WELL AWARE THAT EVEN THE BROAD
LANGUAGE OF SENATOR MCCLELLAN'S ORIGINAL PROPOSAL WAS MORE LIMITED IN
SCOPE THAN MUCH STATE LAW.  SEE 105 CONG.REC.  6481-6489. 

/12/  LABOR-MANAGEMENT REFORM LEGISLATION HEARINGS BEFORE A JOINT
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON EDUCATION AND LABOR, 86TH CONG.,
1ST SESS., PT. 5, P. 2285 (1959). 

/13/  SEE TR. OF UNION DISCIPLINARY HEARING 26-28, 76. 

/14/  VARS V. BOILERMAKERS, 320 F.2D 576 (CA2 1963); ROSEN V.
PAINTERS, 198 F.SUPP.  46 (SDNY 1961), APPEAL DISMISSED, 326 F.2D 400
(CA2 1964); LEWIS V. AMERICAN FEDERATION OF STATE EMPLOYEES, 407 F.2D
1185 (CA3 1969); BOILERMAKERS V. BRASWELL, 388 F.2D 193 (CA5 1968);
BURKE V. BOILERMAKERS, 417 F.2D 1063 (CA9 1969), AFFIRMING 302 F.SUPP. 
1345 (ND CAL. 1967). 

/15/  ALTHOUGH A TRANSCRIPT WAS MADE OF THE UNION PROCEEDINGS IN THE
PRESENT CASE, WE HAVE NO REASON TO BELIEVE THAT THIS IS A UNIVERSAL
PRACTICE. 

MR. JUSTICE WHITE, CONCURRING. 

THE COURT ACCURATELY STATES THE HOLDINGS IN SAN DIEGO BUILDING
TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959), AND LIKE CASES.  BUT
SINCE THE CASE BEFORE US "IMPLICATES NONE OF THE PRINCIPLES," ANTE, AT
240, ANNOUNCED IN THOSE CASES, NEITHER IS THEIR CONTINUING VALIDITY IN
THEIR FULL SWEEP REAFFIRMED BY TODAY'S OPINION.  ON THIS BASIS, I JOIN
THE COURT'S OPINION. 

I ADD AN ADDITIONAL NOTE.  AS THE COURT SAYS, HARDEMAN'S CONVICTION ON
BOTH CHARGES AGAINST HIM WAS UPHELD.  EXPULSION WAS WARRANTED ON EITHER
COUNT.  THE PRINCIPLE OF STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931),
HAS NO APPLICATION IN THIS SITUATION.  TURNER V. UNITED STATES, 396
U.S. 398, 420 (1970); BARENBLATT V. UNITED STATES, 360 U.S. 109, 115
(1959); CLAASSEN V. UNITED STATES, 142 U.S. 140, 146-147 (1891); SEE
ALSO CASES CITED IN STREET V. NEW YORK, 394 U.S. 576, 613 N. 2 (1969)
(WHITE, J., DISSENTING). 

MR. JUSTICE DOUGLAS, DISSENTING. 

GIVES A MEMBER OF A UNION THE RIGHT OF CIVIL REDRESS IN A FEDERAL
DISTRICT COURT AGAINST HIS UNION FOR INFRINGEMENT OF HIS RIGHTS SECURED
BY THE ACT /1/  AT THE SAME TIME SEC. 103, 29 U.S.C. 413, RESERVES TO
MEMBERS ANY REMEDIES THEY MAY HAVE "UNDER ANY STATE OR FEDERAL LAW OR
BEFORE ANY COURT OR OTHER TRIBUNAL, OR UNDER THE CONSTITUTION AND
BYLAWS" OF THEIR UNIONS.  MOREOVER, SEC. 101(A)(5), 29 U.S.C.
411(A)(5), /2/  PROVIDES THAT, EXCEPT FOR NONPAYMENT OF DUES, NO MEMBER
OF A LABOR ORGANIZATION MAY BE EXPELLED OR DISCIPLINED UNTIL THERE HAS
BEEN NOTICE AND A FAIR HEARING. 

THE LATTER RIGHT IS NOT EXCLUSIVE, FOR AS NOTED THE ACT GIVES
MEMBERS REMEDIES FOR INFRINGEMENT OF RIGHTS UNDER THE ACT OR UNDER THE
CONSTITUTION AND BYLAWS OF THE UNION. 

IN THE PRESENT CASE RESPONDENT WENT TO ONE WISE, IN CHARGE OF
REFERRAL OF MEN TO JOBS THROUGH THE UNION HIRING HALL, AND DURING THE
DISCUSSION WHICH FOLLOWED THERE WAS AN ALTERCATION IN WHICH RESPONDENT
HIT WISE.  FOR THAT ASSAULT RESPONDENT WAS FINED IN A CRIMINAL COURT. 
THEREUPON WISE FILED CHARGES AGAINST RESPONDENT FOR VIOLATIONS OF ONE
PROVISION OF THE UNION'S BYLAWS /3/  AND ONE PROVISION OF THE UNION'S
CONSTITUTION.  /4/ 

AT A HEARING BEFORE A COMMITTEE OF THE LOCAL LODGE WHICH HARDEMAN
ATTENDED IT WAS DETERMINED THAT RESPONDENT WAS "GUILTY AS CHARGED." 
THAT DETERMINATION WAS APPROVED BY THE MEMBERSHIP OF THE LOCAL WHICH
VOTED TO SUSPEND HIM FROM MEMBERSHIP "INDEFINITELY." 

RESPONDENT APPEALED TO THE INTERNATIONAL UNION, PETITIONER HERE. 
ACTING THROUGH ITS PRESIDENT AND ITS INTERNATIONAL EXECUTIVE COUNCIL IT
DENIED THE APPEAL. 

THEREAFTER RESPONDENT SUED INTERNATIONAL FOR CONSEQUENTIAL AND
PUNITIVE DAMAGES.  THE CASE WAS TRIED BY A JURY WHICH RETURNED A
VERDICT OF $152,150 AND THE COURT OF APPEALS AFFIRMED.  420 F.2D 485. 
THERE WAS EVIDENCE THAT THERE WAS A GRUDGE BETWEEN WISE AND
RESPONDENT, OUT OF WHICH THE FIST FIGHT OCCURRED.  AND THERE WAS
EVIDENCE THAT THE FORCE OR VIOLENCE WAS AN ATTEMPT TO COERCE WISE "TO
PREVENT HIM FROM PROPERLY DISCHARGING THE DUTIES OF HIS OFFICE" WITHIN
A RATIONAL MEANING OF THE BYLAWS OF THE UNION.  /5/  AND THE DISTRICT
COURT SO CHARGED THE JURY.  BUT, AS THE DISTRICT COURT RULED, THERE WAS
NO EVIDENCE THAT RESPONDENT ENDEAVORED "TO CREATE DISSENSION AMONG THE
MEMBERS" OR TO WORK AGAINST THE "INTEREST AND HARMONY" OF THE UNION
WITHIN THE MEANING OF ART. XIII OF THE CONSTITUTION.  /6/ 

I AGREE THAT A COURT DOES NOT SIT IN REVIEW OF A UNION AS IT DOES OF
AN ADMINISTRATIVE AGENCY.  BUT BY REASON OF SEC. 101(A)(5) JUDICIAL
OVERSIGHT IS MUCH MORE THAN PROCEDURAL; IT PROVIDES IN SUBSECTION (C)
FOR "A FULL AND FAIR HEARING., EVEN IF EVERY CONCEIVABLE PROCEDURAL
GUARANTEE IS PROVIDED, A HEARING IS NOT "FAIR" WHEN ALL SUBSTANTIVE
RIGHTS ARE STRIPPED AWAY TO REACH A PREORDAINED RESULT.  IF THERE IS TO
BE A "FAIR HEARING" THERE MUST, I SUBMIT, BE SOME EVIDENCE DIRECTED TO
THE CHARGES TO SUPPORT THE CONCLUSION. 

MEMBERSHIP IN A UNION MAY BE THE KEY TO LIVELIHOOD ITSELF.  /7/
WITHOUT MEMBERSHIP, THE MEMBER MAY BE CAST INTO THE OUTER DARKNESS, SO
FAR AS EMPLOYMENT IS CONCERNED.  JUST AS THIS COURT CONCLUDED CONGRESS
DID NOT AUTHORIZE EXCLUSIVE BARGAINING AGENTS TO MAKE INVIDIOUS
DISCRIMINATIONS, STEELE V. LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192,
IT IS UNTHINKABLE TO ME THAT CONGRESS IN DESIGNING SEC. 101(A)(5) GAVE
UNIONS THE AUTHORITY TO EXPEL MEMBERS FOR SUCH REASONS AS THEY CHOSE. 
FOR COURTS TO LEND THEIR HAND TO SUCH OPPRESSIVE PRACTICES IS TO PUT
THE JUDICIAL IMPRIMATUR ON THE UNION'S UTTER DISREGARD OF DUE PROCESS
TO REACH ITS OWN ENDS. 

IN BOILERMAKERS V. BRASWELL, ARISING OUT OF THE SAME INCIDENT, THE
COURT OF APPEALS FOLLOWED THAT REASONING.  388 F.2D 193, 199.  IT
SAID: 

     "(THE ACT CHARGED TO BRASWELL WAS A BLOW STRUCK IN ANGER, AND

  NOTHING MORE.  HOWEVER REPREHENSIBLE THIS ACT MAY BE, IT DID NOT

  CONSTITUTE A VIOLATION OF THE PROVISIONS IN THE CHARGES.  ARTICLE

  XIII, SECTION 1 OF THE CONSTITUTION ON ITS FACE IS DIRECTED AT

  THREATS TO THE UNION AS AN ORGANIZATION AND TO THE EFFECTIVE

  CARRYING OUT OF THE UNION'S AIMS.  BRASWELL'S FIST WAS NOT SUCH A

  THREAT." 

AS STATED BY A STUDENT IN THIS AREA:  "(HOW CAN THERE BE A 'FULL AND
FAIR HEARING' WHEN IT RESULTS IN A VERDICT WHICH MOCKS THE EVIDENCE?" 
/8/  OF COURSE, THE REVIEWING THE MERITS OF THE DISPUTE.  BUT IT DOES
SIT TO CHECK INTEMPERATE USE OF UNION POWER; AND IF IT IS TO DISCHARGE
ITS DUTIES, IT MUST CONCLUDE THAT THERE IS SOME EVIDENCE TO SUSTAIN THE
CHARGE.  THIS IS THE VIEW OF THE SECOND, THIRD, AND FIFTH CIRCUITS,
VARS V. BOILERMAKERS, 320 F.2D 576; KELSEY V. PHILADELPHIA LOCAL NO. 8,
419 F.2D 491; BOILERMAKERS V. BRASWELL, 388 F.2D 193, AND I WOULD ADOPT
IT AS THE CONTROLLING LEGAL PRINCIPLE. 

VIOLATION OF ART. XIII OF THE CONSTITUTION CARRIES WITH IT AUTOMATIC
EXPULSION.  VIOLATION OF THE BYLAWS WOULD CARRY PUNISHMENT "AS
WARRANTED BY THE OFFENSE," WHICH, I ASSUME, WOULD JUSTIFY EXPULSION. 
FOR RESPONDENT TO USE FORCE AGAINST WISE WHO WAS IN CHARGE OF REFERRAL
OF MEN TO JOBS THROUGH THE UNION HIRING HALL MAY WELL HAVE BEEN AN
ATTEMPT "TO PREVENT HIM FROM PROPERLY DISCHARGING THE DUTIES OF HIS
OFFICE" WITHIN THE MEANING OF ART. XII.  BUT HOW AN ISOLATED FIST FIGHT
COULD "CREATE DISSENSION" AMONG UNION MEMBERS OR WORK AGAINST THE
UNION'S INTERESTS IN THE OTHER WAYS DESCRIBED IN ART. XIII REMAINS A
MYSTERY. 

THE FINDING OF THE UNION WAS THE GENERAL ONE "GUILTY AS CHARGED." 
UNDER WHICH PROVISION-- CONSTITUTION OR BYLAW-- IT SUSPENDED HIM
INDEFINITELY IS NOT MADE CLEAR.  PERHAPS IT WAS UNDER ONLY ONE OR
PERHAPS UNDER BOTH PROVISIONS. 

IN THAT POSTURE THE CASE IS IN THE CATEGORY OF STROMBERG V.
CALIFORNIA, 283 U.S. 359, WHERE A CONVICTION MIGHT HAVE BEEN VALID
UNDER ONE CHARGE BUT WOULD HAVE BEEN INVALID UNDER THE OTHER; BUT THE
VERDICT BEING A GENERAL ONE, IT WAS IMPOSSIBLE TO TELL UNDER WHICH HE
WAS CONVICTED.  IT IS AS MUCH A DENIAL OF DUE PROCESS TO SUSTAIN A
CONVICTION MERELY BECAUSE A VERDICT OF GUILTY MIGHT HAVE BEEN RENDERED
ON A VALID GROUND AS IT IS TO SEND AN ACCUSED TO PRISON FOLLOWING
CONVICTION OF A CHARGE ON WHICH HE WAS NEVER TRIED.  COLE V. ARKANSAS,
333 U.S. 196, 201.  IT WAS IN THAT TRADITION THAT THE DISTRICT COURT
CHARGED THE JURY:  /9/ 

     "NOW, THAT IS ALL THEY CHARGED HIM WITH WERE THOSE TWO

  AND THERE IS NOTHING IN THIS RECORD THAT WOULD JUSTIFY A FINDING

  OF GUILTY UNDER THOSE SECTIONS.  ALL OF IT IS ABOUT THE FIGHT. 

     "I AM TELLING YOU, AS A MATTER OF LAW, THAT UNDER THE PROOF,

  THE FINDING WHICH RESULTED IN HIS BEING EXPELLED, CANNOT LEGALLY

  STAND AND THEREFORE HE WAS WRONGFULLY EXPELLED." 

SINCE THE FINDING OF "GUILTY AS CHARGED" HAD THAT INFIRMITY, IT
COULD NOT STAND; AND THE JURY WAS JUSTIFIED IN ASSESSING DAMAGES FOR AN
UNLAWFUL EXPULSION.  /10/ 

/1/  SECTION 102 PROVIDES: 

"ANY PERSON WHOSE RIGHTS SECURED BY THE PROVISIONS OF THIS TITLE
HAVE BEEN INFRINGED BY ANY VIOLATION OF THIS TITLE MAY BRING A CIVIL
ACTION IN A DISTRICT COURT OF THE UNITED STATES FOR SUCH RELIEF
(INCLUDING INJUNCTIONS) AS MAY BE APPROPRIATE.  ANY SUCH ACTION AGAINST
A LABOR ORGANIZATION SHALL BE BROUGHT IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT WHERE THE ALLEGED VIOLATION OCCURRED, OR
WHERE THE PRINCIPAL OFFICE OF SUCH LABOR ORGANIZATION IS LOCATED." 

/2/  SECTION 101(A)(5) PROVIDES: 

"NO MEMBER OF ANY LABOR ORGANIZATION MAY BE FINED, SUSPENDED,
EXPELLED, OR OTHERWISE DISCIPLINED EXCEPT FOR NONPAYMENT OF DUES BY
SUCH ORGANIZATION OR BY ANY OFFICER THEREOF UNLESS SUCH MEMBER HAS BEEN
(A) SERVED WITH WRITTEN SPECIFIC CHARGES; (B) GIVEN A REASONABLE TIME
TO PREPARE HIS DEFENSE; (C) AFFORDED A FULL AND FAIR HEARING." 

/3/  ARTICLE XII OF THE BYLAWS PROVIDES: 

"IN ADDITION TO THE OFFENSES AND PENALTIES SET OUT IN THE APPLICABLE
PROVISIONS OF THE INTERNATIONAL AND SUBORDINATE LODGE CONSTITUTION, THE
FOLLOWING OFFENSES AND PENALTIES SHALL BE OBSERVED IN THIS SUBORDINATE
LODGE, AND ANY MEMBER WHO VIOLATES SAME SHALL, IF FOUND GULITY AFTER
PROPER HEARING AS PROVIDED HEREIN, BE PUNISHED AS WARRANTED BY THE
OFFENSE. 

"(1) IT SHALL BE A VIOLATION OF THESE BY-LAWS FOR ANY MEMBER THROUGH
THE USE OF FORCE OR VIOLENCE OR THE THREAT OF THE USE OF FORCE OR
VIOLENCE TO RESTRAIN, COERCE OR INTIMIDATE, OR ATTEMPT TO RESTRAIN,
COERCE OR INTIMIDATE ANY OFFICIAL OF THIS INTERNATIONAL BROTHERHOOD OR
SUBORDINATE LODGE TO PREVENT OR ATTEMPT TO PREVENT HIM FROM PROPERLY
DISCHARGING THE DUTIES OF HIS OFFICE." 

/4/  ARTICLE XIII, SEC. 1, OF THE CONSTITUTION PROVIDES: 

"ANY MEMBER WHO ENDEAVORS TO CREATE DISSENSION AMONG THE MEMBERS; OR
WHO WORKS AGAINST THE INTEREST AND HARMONY OF THE INTERNATIONAL
BROTHERHOOD OR OF ANY DISTRICT OR SUBORDINATE LODGE; WHO ADVOCATES OR
ENCOURAGES A DIVISION OF THE FUNDS, OR THE DISSOLUTION OF ANY DISTRICT
OR SUBORDINATE LODGE, OR THE SEPARATION OF ANY DISTRICT OR SUBORDINATE
LODGE FROM THE INTERNATIONAL BROTHERHOOD; WHO SUPPORTS OR BECOMES A
MEMBER OF ANY DUAL OR SUBVERSIVE ORGANIZATION WHICH SHALL BE HOSTILE TO
THE INTERNATIONAL BROTHERHOOD OR TO ANY OF ITS SUBORDINATE LODGES, OR
WHICH IS ANTAGONISTIC TO THE PRINCIPLES AND PURPOSES OF THE
INTERNATIONAL BROTHERHOOD, SHALL UPON CONVICTION THEREOF BE PUNISHED BY
EXPULSION FROM THE INTERNATIONAL BROTHERHOOD." 

/5/  SEE N. 3, SUPRA. 

/6/  SEE N. 4, SUPRA. 

/7/  HARDEMAN TESTIFIED AT TRIAL THAT FOLLOWING THE LOSS OF HIS
UNION CARD HE WAS UNABLE TO WORK IN THE BOILERMAKER'S TRADE BEYOND ONE
JOB LASTING FIVE DAYS. 

/8/  CHRISTENSEN, UNION DISCIPLINE UNDER FEDERAL LAW:  INSTITUTIONAL
DILEMMAS IN AN INDUSTRIAL DEMOCRACY, 43 N.Y.U.L.REV.  227, 251. 

/9/  THE COURT OF APPEALS AFFIRMED SUMMARILY ON THE BASIS OF
BOILERMAKERS V. BRASWELL, 388 F.2D 193, A CASE ARISING OUT OF THE SAME
FACTUAL SITUATION, AS BRASWELL ALSO ASSAULTED WISE AT THE TIME
RESPONDENT ASSAULTED HIM.  IN BRASWELL, THE COURT OF APPEALS FOUND THAT
THE BLOW WAS "STRUCK IN ANGER, AND NOTHING MORE."  HENCE IT HELD THAT
BRASWELL'S FIST WAS NOT USED AN AN EFFORT TO CREATE DISSENSION AMONG
MEMBERS WITHIN THE MEANING OF ART. XIII OF THE CONSTITUTION.  BY ITS
SUMMARY AFFIRMANCE IN THE PRESENT CASE IT PRESUMABLY REACHED THE SAME
CONCLUSION IN THE PRESENT CASE. 

/10/  IT IS URGED THAT SINCE RESONDENT'S COMPLAINT AROSE OUT OF HIS
EFFORT TO OBTAIN EMPLOYMENT, HIS RELIEF MAY BE SOUGHT ONLY FROM THE
NATIONAL LABOR RELATIONS BOARD.  SEE SAN DIEGO BUILDING TRADES COUNCIL
V. GARMON, 359 U.S. 236; LOCAL 100, JOURNEYMEN V. BORDEN, 373 U.S. 690;
LOCAL 207 V. PERKO, 373 U.S. 701.  THE ARGUMENT IS THAT THE EXPULSION
OF RESPONDENT WAS "ARGUABLY" AN UNFAIR LABOR PRACTICE AND THAT
EXCLUSIVE JURISDICTION THEREFORE WAS WITH THE BOARD.  BUT GARMON
PREVENTS CONFLICTS BETWEEN FEDERAL AND STATE POLICY.  IF THERE IS A
CONFLICT IN THE PRESENT CASE, IT IS BETWEEN TWO FEDERAL AGENCIES; AND
CONGRESS HAS DECLARED IN SEC. 102 OF THE LANDRUM-GRIFFIN ACT THAT THE
FEDERAL COURTS, NOT THE BOARD, ARE TO HAVE THE PRIMARY ROLE. 

LOUIS SHERMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE ELIHU I. LEIFER AND BERNARD CUSHMAN. 

ROBERT E. MCDONALD, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS, AFL-CIO, AS AMICUS CURIAE URGING REVERSAL. 
..END :

















UNITED STATES V. WELLER, 401 U.S. 254 


       UNITED STATES V. WELLER

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

        NO. 77.  ARGUED DECEMBER 10, 1970-- DECIDED FEBRUARY 24,

           1971 


APPELLEE, WHO CLAIMED CONSCIENTIOUS OBJECTOR STATUS, WAS REFUSED
REPRESENTATION BY HIS ATTORNEY AT THE TIME OF HIS PERSONAL APPEARANCE
BEFORE HIS DRAFT BOARD ON THE BASIS OF A SELECTIVE SERVICE REGULATION
PROHIBITING SUCH REPRESENTATION.  SUBSEQUENTLY INDICTED FOR REFUSING TO
SUBMIT TO INDUCTION, APPELLEE FILED A MOTION TO DISMISS, CONTENDING
THAT THE DENIAL OF COUNSEL HAD DEPRIVED HIM OF DUE PROCESS.  THE
DISTRICT COURT GRANTED APPELLEE'S MOTION ON THE GROUND THAT THE
REGULATION WAS NOT AUTHORIZED BY THE MILITARY SELECTIVE SERVICE ACT OF
1967.  THE UNITED STATES FILED A NOTICE OF APPEAL TO THIS COURT, BUT,
AFTER RECONSIDERING AND CONCLUDING THAT THIS COURT LACKED JURISDICTION
TO ENTERTAIN ITS DIRECT APPEAL FROM THE DISTRICT COURT'S ORDER, THE
UNITED STATES MOVED FOR A REMAND TO THE COURT OF APPEALS.  APPELLEE
CONTENDS THAT THE "CONSTRUCTION OF THE STATUTE" DISMISSAL PROVISION OR
THE "MOTION IN BAR" PROVISION OF THE CRIMINAL APPEALS ACT GIVES THIS
COURT JURISDICTION OF THE APPEAL.  HELD: 

1.  THIS COURT HAS NO JURISDICTION OF THE APPEAL UNDER THE
"CONSTRUCTION OF THE STATUTE" PROVISION SINCE THE INTERRELATION OF THE
REGULATION AND THE STATUTE FELL SHORT OF THAT REQUIRED FOR THE
DISMISSAL TO HAVE BEEN BASED UPON THE CONSTRUCTION OF THE STATUTE. 
UNITED STATES V. MERSKY, 361 U.S. 431, DISTINGUISHED.  PP. 257-259. 

2.  THE "MOTION IN BAR" PROVISION APPLIES ONLY WHEN A DEFENDANT,
WHILE NOT DENYING THE COMMISSION OF THE OFFENSE, CLAIMS THAT AN
EXTRANEOUS FACTOR FORECLOSES PROSECUTION.  THAT PROVISION IS
INAPPLICABLE HERE SINCE APPELLEE CONTENDS THAT HIS REFUSAL TO SUBMIT TO
INDUCTION WAS NOT A CRIME BECAUSE OF THE DENIAL OF COUNSEL BY HIS DRAFT
BOARD.  PP. 259-261.  309 F.SUPP.  50, REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BLACK, HARLAN, BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P. 261. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CALLED UPON ONCE AGAIN TO CONSTRUE THE ELUSIVE
PROVISIONS OF THE CRIMINAL APPEALS, ACT, 18 U.S.C. 3731.  /1/  SOMEWHAT
IRONICALLY, THE ARGUMENT THAT WE HAVE NO JURISDICTION OVER THIS APPEAL
IS MADE BY THE APPELLANT, THE UNITED STATES.  THE APPELLEE, ON THE
OTHER HAND, INSISTS THE CASE IS PROPERLY HERE. 

A GRAND JURY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA INDICTED THE APPELLEE FOR REFUSING TO SUBMIT TO
INDUCTION INTO THE ARMED FORCES, A VIOLATION OF 50 U.S.C. APP. 462(A)
(1964 ED., SUPP. V).  /2/  IN THE SELECTIVE SERVICE PROCEEDINGS LEADING
UP TO HIS  INDUCTION NOTICE, THE APPELLEE SOUGHT CONSCIENTIOUS OBJECTOR
STATUS.  HE SPECIFICALLY REQUESTED THAT HIS LAWYER BE ALLOWED TO
ACCOMPANY HIM AT THE TIME OF HIS PERSONAL APPEARANCE BEFORE HIS LOCAL
BOARD, BUT THE BOARD, RELYING ON 32 CFR 1624.1(B), DENIED THE REQUEST
AND CONDUCTED THE PERSONAL APPEARANCE WITHOUT THE APPELLEE'S COUNSEL
PRESENT.  /3/  SUBSEQUENTLY, THE BOARD DECLINED TO REOPEN THE
APPELLEE'S I-A CLASSIFICATION, AND THE APPELLEE UNSUCCESSFULLY
EXHAUSTED ADMINISTRATIVE REVIEW.  HIS ORDER TO REPORT FOR INDUCTION,
HIS REFUSAL TO SUBMIT, AND THIS PROSECUTION FOLLOWED. 

THE APPELLEE MOVED BEFORE TRIAL TO DISMISS HIS INDICTMENT ON THE
GROUND, AMONG OTHERS, THAT THE DENIAL OF COUNSEL AT THE TIME OF HIS
PERSONAL APPEARANCE BEFORE THE BOARD DEPRIVED HIM OF DUE PROCESS OF LAW
UNDER THE FIFTH AMENDMENT.  THE DISTRICT COURT DID NOT SQUARELY DECIDE
THIS CONSTITUTIONAL CLAIM, BUT GRANTED THE MOTION TO DISMISS ON THE
GROUND THAT THE REGULATION PROHIBITING REPRESENTATION BY COUNSEL AT A
REGISTRANT'S PERSONAL APPEARANCE WAS NOT AUTHORIZED BY THE MILITARY
SELECTIVE SERVICE ACT.  309 F.SUPP.  50.  THE COURT RELIED PRIMARILY
UPON GREENE V. MCELROY, 360 U.S. 474, IN WHICH OUR OPINION UNDERSCORED
"THE COURT'S CONCERN THAT TRADITIONAL FORMS OF FAIR PROCEDURE NOT BE
RESTRICTED BY IMPLICATION OR WITHOUT THE MOST EXPLICIT ACTION BY THE
NATION'S LAWMAKERS, EVEN IN AREAS WHERE IT IS POSSIBLE THAT THE
CONSTITUTION PRESENTS NO INHIBITION."  360 U.S.,AT 508.  VIEWING THE
PERSONAL APPEARANCE AS "A CRITICAL STAGE OF AN ADMINISTRATIVE PROCESS
AT WHICH SUBSTANTIAL RIGHTS ARE ADJUDICATED," 309 F.SUPP.,AT 51, THE
DISTRICT COURT FOUND THE VARIOUS PROVISIONS OF THE SELECTIVE SERVICE
ACT CONFERRING RULEMAKING POWER ON THE EXECUTIVE INSUFFICIENT TO
AUTHORIZE A REGULATION DENYING COUNSEL AT LOCAL BOARD HEARINGS.  /4/ 

THE UNITED STATES FILED A NOTICE OF APPEAL TO THIS COURT. 
SUBSEQUENTLY, THE GOVERNMENT RECONSIDERED ITS POSITION AND CONCLUDED
THAT THIS COURT LACKED JURISDICTION OVER THE APPEAL.  ACCORDINGLY, THE
SOLICITOR GENERAL FILED A MOTION ASKING US TO REMAND THE CASE TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.  WE POSTPONED
FURTHER CONSIDERATION OF THE QUESTION OF JURISDICTION UNTIL THE HEARING
OF THE CASE ON THE MERITS.  397 U.S. 985.  WE NOW CONCLUDE THAT THIS
APPEAL IS NOT PROPERLY HERE AND, PURSUANT TO THE PROVISIONS OF THE
CRIMINAL APPEALS ACT, REMAND THE CASE TO THE COURT OF APPEALS.  /5/ 

THE APPELLEE URGES THAT WE HAVE JURISDICTION UNDER EITHER OF TWO
ON THE CONSTRUCTION OF THE STATUTE ON WHICH THE INDICTMENT IS FOUNDED
AND THE OTHER TO MOTIONS IN BAR.  /6/  CONSIDERING FIRST THE
"CONSTRUCTION OF THE STATUTE" PROVISION, THE CONTROLLING PRECEDENT IS
THIS COURT'S DECISION IN UNITED STATES V. MERSKY, 361 U.S. 431.  IN
THAT CASE, AS IN THIS ONE, THERE WERE IN ISSUE BOTH A STATUTE AND A
REGULATION PROMULGATED PURSUANT TO IT.  IN FINDING JURISDICTION IN
MERSKY, HOWEVER, THE COURT NOTED THAT "NEITHER THE STATUTE NOR THE
REGULATIONS ARE COMPLETE WITHOUT THE OTHER, AND ONLY TOGETHER DO THEY
HAVE ANY FORCE.  IN EFFECT, THEREFORE, THE CONSTRUCTION OF ONE
NECESSARILY INVOLVES THE CONSTRUCTION OF THE OTHER . . . . WHEN THE
STATUTE AND REGULATIONS ARE SO INEXTRICABLY INTERTWINED, THE DISMISSAL
MUST BE HELD TO INVOLVE THE CONSTRUCTION OF THE STATUTE."  361 U.S.,AT
438.  /7/ 

THE RELATION BETWEEN THE SELECTIVE SERVICE ACT AND THE REGULATION
FORBIDDING REPRESENTATION BY COUNSEL BEFORE LOCAL BOARDS IS WHOLLY
DIFFERENT FROM THE SITUATION IN MERSKY.  THE REGULATION IS NOT AT ALL
"CALLED FOR BY THE STATUTE ITSELF," 361 U.S.,AT 438.  INDEED, SO
INDEPENDENT ARE THE STATUTE AND THE REGULATION THAT IT WOULD BE
ENTIRELY POSSIBLE FOR A REGULATION COVERING THE SAME SUBJECT MATTER TO
PROVIDE EXACTLY THE REVERSE OF WHAT THE PRESENT REGULATION REQUIRES. 
IT CANNOT BE SAID HERE THAT "THE CONSTRUCTION OF ONE NECESSARILY
INVOLVES THE CONSTRUCTION OF THE OTHER."  SINCE THIS STATUTE AND THIS
REGULATION FALL SO FAR SHORT OF BEING "INEXTRICABLY INTERTWINED," WE
CONCLUDE THAT THE DISMISSAL OF THE APPELLEE'S INDICTMENT WAS NOT "BASED
UPON THE . . . CONSTRUCTION OF THE STATUTE."  /8/ 

WE TURN, ACCORDINGLY, TO THE "MOTION IN BAR" PROVISION OF THE
CRIMINAL APPEALS ACT.  TWO PRELIMINARY OBSERVATIONS ARE NECESSARY. 
FIRST, A "MOTION IN BAR" MUST BE TAKEN TO MEAN WHATEVER WAS MEANT BY A
"SPECIAL PLEA IN BAR" IN THE ACT AS ORIGINALLY PASSED IN 1907.  /9/
SECOND, THIS COURT HAS NEVER SETTLED ON A DEFINITIVE INTERPRETATION OF
WHAT CONSTITUTES A "MOTION IN BAR."  /10/ 

DURING ITS DEBATES ON THE CRIMINAL APPEALS ACT IN 1907, CONGRESS
PAID RELATIVELY LITTLE ATTENTION TO THE "SPECIAL PLEA IN BAR" SECTION
OF THE ACT.  THE CLEAREST STATEMENT OF ITS MEANING WAS GIVEN BY ONE OF
THE BILL'S COSPONSORS, SENATOR PATTERSON: 

     "A SPECIAL PLEA IN BAR IS THAT WHICH IS SET UP AS A SPECIAL

DEFENSE NOTWITHSTANDING THE DEFENDANT MAY BE GUILTY OF THE

  OFFENSES WITH WHICH HE IS CHARGED; IT IS FOR SOME OUTSIDE MATTER;

  YET IT MAY HAVE BEEN CONNECTED WITH THE CASE."  /11/ 

THE TENOR OF THIS DEFINITION ACCORDS WITH TRADITIONAL USAGE, FOR AT
COMMON LAW THE MOST USUAL SPECIAL PLEA IN BAR TOOK THE FORM OF
CONFESSION AND AVOIDANCE.  1 J. CHITTY, TREATISE ON PLEADING AND
PARTIES TO ACTIONS *551-552 (16TH AM. ED. 1883).  IN CRIMINAL CASES THE
MOST COMMON SPECIAL PLEAS IN BAR PRESENTED CLAIMS OF DOUBLE JEOPARDY OR
PARDON, 2 J. BISHOP, NEW CRIMINAL PROCEDURE SEC. 742 (2D ED. 1913), AND
SOMETIMES THE STATUTE OF LIMITATIONS, ID., AT SEC. 799(5). 

A CHARACTERISTIC COMMON TO ALL THESE DEFINITIONS IS THAT A SPECIAL
PLEA IN BAR DID NOT DENY THAT A DEFENDANT HAD COMMITTED THE ACTS
ALLEGED AND THAT THE ACTS WERE A CRIME.  RATHER, IT CLAIMED THAT
NEVERTHELESS HE COULD NOT BE PROSECUTED FOR HIS CRIME BECAUSE OF SOME
EXTRANEOUS FACTOR.  A SITUATION IN WHICH THE DEFENDANT CLAIMS THAT HIS
ACT WAS SIMPLY NOT A CRIME WOULD BE BEYOND THE SCOPE OF THIS TEST. 

OUR DECISIONS ARE CONSISTENT WITH THIS READING OF THE "MOTION IN
BAR" PROVISION.  IN EARLY CASES UNDER THE SECTION, THE MOST FAMILIAR
PLEA IN BAR INTERPOSED THE STATUTE OF LIMITATIONS.  E.G., UNITED STATES
V. GOLDMAN, 277 U.S. 229, 236-237; UNITED STATES V. RABINOWICH, 238
U.S. 78, 83-84.  IN OTHER CASES DEFENDANTS HAVE CLAIMED IMMUNITY
BECAUSE OF PRIOR SELF-INCRIMINATORY TESTIMONY OR A STATUTORY GRANT OF
IMMUNITY.  UNITED STATES V. BLUE, 384 U.S. 251; UNITED STATES V.
HOFFMAN, 335 U.S. 77, 78; UNITED STATES V. MONIA, 317 U.S. 424.  SEE
ALSO UNITED STATE V. EWELL, 383 U.S. 116 (SPEEDY TRIAL); UNITED STATES
V. HARK, 320 U.S. 531 (GOVERNING REGULATION REVOKED AFTER VIOLATION BUT
BEFORE INDICTMENT); UNITED STATES V. THOMPSON, 251 U.S. 407 (FIRST
GRAND JURY REFUSED TO INDICT; CHARGES SUBMITTED TO SECOND GRAND JURY
WITHOUT COURT APPROVAL); UNITED STATE V. CELESTINE, 215 U.S. 278
(CHALLENGE TO FEDERAL JURISDICTION.  /12/ 

TESTING THE APPELLEE'S MOTION TO DISMISS BY THIS STANDARD, WE THINK
IT PLAIN THAT IT CANNOT QUALIFY AS A "MOTION IN BAR."  THE APPELLEE DID
NOT DENY THAT HE REFUSED TO SUBMIT TO INDUCTION, BUT HE CLAIMED THAT
HIS CONDUCT WAS NOT A CRIME BECAUSE OF THE PRIOR DENIAL OF COUNSEL.  HE
HAS NOT CONFESSED TO A CRIME AND CLAIMED IMMUNITY FROM PROSECUTION; HE
ARGUES THAT HE HAS COMMITTED NO CRIME. 

WE CONCLUDE, THEREFORE, THAT WE HAVE NO JURISDICTION OVER THIS
APPEAL UNDER EITHER THE "CONSTRUCTION OF THE STATUTE" OR "MOTION IN
BAR" PROVISIONS OF THE CRIMINAL APPEALS ACT.  ACCORDINGLY, THIS CASE IS
REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
FOR FURTHER PROCEEDINGS IN THAT COURT. 

              IT IS SO ORDERED. 

/1/  THE END OF OUR PROBLEMS WITH THIS ACT IS FINALLY IN SIGHT.  THE
OMNIBUS CRIME CONTROL ACT OF 1970, SEC. 14(A), 84 STAT. 1890, AMENDED
THE CRIMINAL APPEALS ACT TO READ IN PERTINENT PART AS FOLLOWS: 

"IN A CRIMINAL CASE AN APPEAL BY THE UNITED STATES SHALL LIE TO A
COURT OF APPEALS FROM A DECISION, JUDGMENT, OR ORDER OF A DISTRICT
COURT DISMISSING AN INDICTMENT OR INFORMATION AS TO ANY ONE OR MORE
COUNTS, EXCEPT THAT NO APPEAL SHALL LIE WHERE THE DOUBLE JEOPARDY
CLAUSE OF THE UNITED STATE CONSTITUTION PROHIBITS FURTHER
PROSECUTION." 

THIS COURT'S APPELLATE JURISDICTION OF GOVERNMENT APPEALS IN FEDERAL
CRIMINAL CASES HAS THUS BEEN ELIMINATED.  PENDING CASES, HOWEVER, ARE
NOT AFFECTED, SINCE SUBSECTION (B) OF THE AMENDING SECTION PROVIDES: 

"THE AMENDMENTS MADE BY THIS SECTION SHALL NOT APPLY WITH RESPSECT
TO ANY CRIMINAL CASE BEGUN IN ANY DISTRICT COURT BEFORE THE EFFECTIVE
DATE OF THIS SECTION." 

THE OMNIBUS CRIME CONTROL ACT OF 1970 TOOK EFFECT ON JANUARY 2,
1971.  THE APPELLEE IN THIS CASE WAS INDICTED ON JANUARY 15, 1969. 

/2/  MILITARY SELECTIVE SERVICE ACT OF 1967, SEC. 12(A), 50 U.S.C.
APP. 462(A) (1964 ED., SUPP. V), PROVIDES IN PERTINENT PART: 

"(ANY 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 . . . SHALL, UPON CONVICTION IN ANY DISTRICT COURT OF THE
UNITED STATE 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 . . . ." 

/3/  32 CFR 1624.1(B) (1970) PROVIDES IN PERTINENT PART: 

"(NO REGISTRANT MAY BE REPRESENTED BEFORE THE LOCAL BOARD BY ANYONE
ACTING AS ATTORNEY OR LEGAL COUNSEL." 

/4/  THE DISTRICT COURT CITED MILITARY SELECTIVE SERVICE ACT SEC.
10(B)(3), 50 U.S.C. APP. 460(B)(3) (1964 ED, SUPP. V), AND 1(C) OF THE
ACT, 50 U.S.C. APP. 451(C).  SEE ALSO MILITARY SELECTIVE SERVICE ACT
SECS. 5(A)(1), 10(B)(1), 50 U.S.C. APP. 455(A)(1) (1964 ED., SUPP. V),
460(B)(1). 

/5/  SEE 18 U.S.C. 3731:

        .          .          .          . 

"IF AN APPEAL SHALL BE TAKEN, PURSUANT TO THIS SECTION, TO THE
SUPREME COURT OF THE UNITED STATES WHICH, IN THE OPINION OF THAT COURT,
SHOULD HAVE BEEN TAKEN TO A COURT OF APPEALS, THE SUPREME COURT SHALL
REMAND THE CASE TO THE COURT OF APPEALS, WHICH SHALL THEN HAVE
JURISDICTION TO HEAR AND DETERMINE THE SAME AS IF THE APPEAL HAD BEEN
TAKEN TO THAT COURT IN THE FIRST INSTANCE." 

/6/  IBID.: 

"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 . . . DISMISSING ANY INDICTMENT . . .
WHERE SUCH DECISION OR JUDGMENT IS BASED UPON THE . . . CONSTRUCTION OF
THE STATUTE UPON WHICH THE INDICTMENT . . . IS FOUNDED. 

        .          .  .          . 

"FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY." 

/7/  THE DISSENTING OPINIONS WOULD HAVE FOUND JURISDICTION WANTING
IN MERSKY.  361 U.S.,AT 444, 453. 

/8/  IT IS SUGGESTED IN DISSENT THAT WE HAVE JURISDICTION BECAUSE OF
THE LANGUAGE IN 50 U.S.C. APP. 460(B)(3) (1964 ED., SUPP. V) CONFERRING
UPON LOCAL BOARDS THE POWER "TO HEAR AND DETERMINE" CLAIMS FOR
EXEMPTION AND DEFERMENT FROM MILITARY SERVICE.  THE RECORD DOES NOT
INDICATE THAT THIS STATUTORY LANGAUGE WAS MENTIONED BY THE APPELLEE IN
THE DISTRICT COURT, AND THE COURT DID NOT RELY UPON THE "HEAR AND
DETERMINE" CLAUSE IN DISMISSING THE INDICTMENT."  THE THEORY OF THE
DISSENT WAS NOT URGED BEFORE THIS COURT, PERHAPS BECAUSE THE PARTIES
REALIZED THAT IT CAN HARDLY BE SAID THAT A DISMISSAL OF AN INDICTMENT
WAS "BASED UPON" A CONSTRUCTION OF A STATUTORY PROVISION THAT THE
DISTRICT COURT NEVER EVEN CONSIDERED. 

/9/  UNITED STATES V. SISSON, 399 U.S. 267, 292-293, N. 22; NOTE 4
OF ADVISORY COMMITTEE TO FED. RULE CRIM. PROC. 54(C), REPRINTED
FOLLOWING FED. RULE CRIM. PROC. 54, 18 U.S.C. APP. 

/10/  UNITED STATES V. SISSON, 399 U.S.,AT 300 AND NN. 53-54. 

/11/  41 CONG.REC.  2753. 

/12/  ONLY TWO CASES APPEAR DIFFICULT TO RECONCILE WITH THE TEST
ADOPTED IN TEXT, AND THESE ARE OF DUBIOUS PARENTAGE.  IN UNITED STATES
V. COVINGTON, 395 U.S. 57, AND UNITED STATES V. MURDOCK, 284 U.S. 141,
DEFENDANTS WERE BEING PROSECUTED FOR REFUSALS TO ANSWER WHICH THEY
JUSTIFIED ON GROUNDS OF FIFTH AMENDMENT PRIVILEGE.  MURDOCK ITSELF,
HOWEVER, SAID THAT THE PLEA WAS NOT APPROPRIATELY PRESENTED AS ONE IN
BAR.  284 U.S.,AT 151.  IN COVINGTON, WE CITED MURDOCK IN ASSUMING
JURISDICTION.  395 U.S.,AT 59 N. 2.    MR. JUSTICE DOUGLAS,
DISSENTING. 

I BELIEVE THAT THE APPEAL IS PROPERLY HERE AND I BELIEVE THAT UNITED
STATES V. MERSKY, 361 U.S. 431, IS A PRECEDENT THAT SUSTAINS MY VIEW
AND MAY NOT PROPERLY BE DISTINGUISHED AS THE COURT UNDERTAKES TO DO. 

IN MERSKY A STATUTE GOVERNING THE LABELING OF IMPORTED ARTICLES WAS
INVOLVED.  THE ACT MADE IT MANDATORY TO LABEL ARTICLES OF FOREIGN
ORIGIN WITH "THE ENGLISH NAME OF THE COUNTRY OF ORIGIN."  IT ALSO SAID
THAT THE SECRETARY OF THE TREASURY "MAY" DETERMINE THE "WORDS AND
PHRASES OR ABBREVIATIONS" WHICH WERE ACCEPTABLE "AS INDICATING THE
COUNTRY OF ORIGIN."  19 U.S.C. 1304(A).     WE HELD THAT THE ACT AND
THE REGULATION WERE "SO INEXTRICABLY INTERTWINED" THAT DISMISSAL OF THE
INFORMATION "MUST BE HELD TO INVOLVE THE CONSTRUCTION OF THE STATUTE." 
361 U.S.,AT 438. 

IN THE PRESENT CASE THE COURT CONCLUDES THAT THE PROVISION OF THE
MILITARY SELECTIVE SERVICE ACT OF 1967 IN ISSUE AND THE REGULATIONS ARE
"FAR SHORT" OF BEING "INEXTRICABLY INTERTWINED."  BUT, WITH ALL
RESPECT, THE ONLY SECTION OF THE ACT QUOTED IS THE PENAL PROVISION
DEFINING THE CRIME OF REFUSING TO BE INDUCTED.  /1/  THE MORE RELEVANT
WHICH READS IN RELEVANT PART: 

     "SUCH LOCAL BOARDS, OR SEPARATE PANELS THEREOF EACH CONSISTING

  OF THREE OR MORE MEMBERS, SHALL, UNDER RULES AND REGULATIONS

  PRESCRIBED BY THE PRESIDENT (SEC. 10(B)(1)), HAVE THE POWER

  WITHIN THE RESPECTIVE JURISDICTIONS OF SUCH LOCAL BOARDS TO HEAR

  AND DETERMINE, SUBJECT TO THE RIGHT OF APPEAL . . . , ALL

  QUESTIONS OR CLAIMS WITH RESPECT TO INCLUSION FOR, OR EXEMPTION

  OR DEFERMENT FROM, TRAINING AND SERVICE UNDER THIS TITLE . . . .

" 

THE QUESTION TURNS ON THE MEANING OF "TO HEAR AND DETERMINE." 
PRESIDEN?  TRUMAN, PURSUANT TO HIS RULEMAKING POWER GRANTED BY SEC.
10(B)(1), PROMULGATED ON AUGUST 20, 1948, A REGULATION, NOW 32 CFR
1624.1, WHICH DESCRIBED THE KIND OF "HEARING" TO WHICH A REGISTRANT IS
ENTITLED.  /2/  MORE PRECISELY DOES THE POWER "TO HEAR AND DETERMINE"
INCLUDE THE RIGHT OF A REGISTRANT PERSONALLY TO APPEAR?  DOES IT
INCLUDE THE RIGHT OF A REGISTRANT TO APPEAR THROUGH AN ATTORNEY OR WITH
AN ATTORNEY?  IS THE QUESTION TO BE RESOLVED "UNDER THE RULES AND
REGULATIONS PRESCRIBED BY THE PRESIDENT" OR IS THE ACT TO BE READ AS
INCLUDING CONSTITUTIONAL REQUIREMENTS OF COUNSEL?  IN MY VIEW THE POWER
"TO HEAR AND DETERMINE," GRANTED BY THE ACT, MAY INDEED BE MORE
INTERTWINED WITH THE REGULATIONS THAN WAS THE ACT IN THE MERSKY CASE. 
FOR IN THE LATTER, THE ACT, AS NOTED, MADE IT MANDATORY TO LABEL
ARTICLES OF FOREIGN ORIGIN WITH "THE ENGLISH NAME OF THE COUNTRY OF
ORIGIN."  THE POWER OF THE SECRETARY OF THE TREASURY TO PROMULGATE
REGULATIONS WAS THEREFORE A POWER MERELY TO FILL IN DETAILS.  IN
CONTRAST, THE PRESENT ACT LEAVES TO "RULES AND REGULATIONS PRESCRIBED
BY THE PRESIDENT" THE SCOPE AND NATURE OF THE POWER OF A LOCAL BOARD
"TO HEAR AND DETERMINE" THE CLAIMS OF A REGISTRANT.  IS THAT
CONSTITUTIONALLY PERMISSIBLE? 

THIS CASE, RATHER THAN MERSKY, IS MORE NEARLY THE ONE WHERE THE ACT
AND THE REGULATIONS ARE "SO INEXTRICABLY INTERTWINED" THAT DISMISSAL OF
THE PRESENT INDICTMENT "MUST BE HELD TO INVOLVE THE CONSTRUCTION OF THE
STATUTE." 

THE DISTRICT COURT CONSTRUED "HEAR AND DETERMINE" CLAIMS OF
REGISTRANTS "UNDER RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT,"
AS THOSE WORDS ARE USED IN SEC. 10(B)(3) OF THE ACT, NOT TO
AUTHORIZE;THE CONSTITUTIONALLY-SUSPECT ACTION OF REMOVING THE RIGHT TO
BE REPRESENTED BY COUNSEL."  309 F.SUPP.,AT 52.  THE DISTRICT COURT IN
GRANTING THE MOTION TO DISMISS ACCORDINGLY CONCLUDED THAT IT WAS
"LOATHE TO HOLD THAT THE ADMINISTRATIVE DENIAL OF SUCH A RIGHT IS
EITHER AUTHORIZED BY CONGRESS OR IS CONSTITUTIONAL."  ID., AT 56.  I
THEREFORE CANNOT SAY THAT THE DISMISSAL OF THE INDICTMENT WAS NOT BASED
ON A CONSTRUCTION OF THE STATUTE THAT THE DISTRICT COURT NEVER
CONSIDERED. 

I WOULD NOT REMIT THE CASE TO THE COURT OF APPEALS BUT WOULD DECIDE
HERE AND NOW WHETHER IN THE CIRCUMSTANCES HERE PRESENTED THE REGISTRANT
WAS ENTITLED TO THE AID OF COUNSEL AT THE HEARING BEFORE THE BOARD. 

/1/ AS WE NOTED ONLY LAST TERM IN DEALING WITH THIS SAME STATUTE,
"AS A MATTER OF SOUND CONSTRUCTION, HOWEVER, 'STATUTE UPON WHICH THE
INDICTMENT . . . IS FOUNDED' SHOULD BE READ TO INCLUDE THE ENTIRE
STATUTE, AND NOT SIMPLY THE PENALTY PROVISIONS."  UNITED STATES V.
SISSON, 399 U.S. 267, 280 N. 9. 

/2/  THEPREDECESSOR OF 32 CFR 1624.1, AS PROMULGATED BY PRESIDENT
TRUMAN, PROVIDED IN RELEVANT PART: 

"(A) EVERY REGISTRANT, AFTER HIS CLASSIFICATION IS DETERMINED BY THE
LOCAL BOARD (EXCEPT A CLASSIFICATION WHICH IS ITSELF DETERMINED UPON AN
APPEARANCE BEFORE THE LOCAL BOARD UNDER THE PROVISIONS OF THIS PART),
SHALL HAVE AN OPPORTUNITY TO APPEAR IN PERSON BEFORE THE MEMBER OR
MEMBERS OF THE LOCAL BOARD DESIGNATED FOR THE PURPOSE IF HE FILES A
WRITTEN REQUEST THEREFOR WITHIN 10 DAYS AFTER THE LOCAL BOARD HAS
MAILED A NOTICE OF CLASSIFICATION (SSS FORM NO. 110) TO HIM.  SUCH 10
DAY PERIOD MAY NOT BE EXTENDED, EXCEPT WHEN THE LOCAL BOARD FINDS THAT
THE REGISTRANT WAS UNABLE TO FILE SUCH REQUEST WITHIN SUCH PERIOD
BECAUSE OF CIRCUMSTANCES OVER WHICH HE HAD NO CONTROL. 

"(B) NO PERSON OTHER THAN A REGISTRANT SHALL HAVE THE RIGHT TO
APPEAR IN PERSON BEFORE THE LOCAL BOARD, BUT THE LOCAL BOARD MAY, IN
ITS DISCRETION, PERMIT ANY PERSON TO APPEAR BEFORE IT WITH OR ON BEHALF
OF A REGISTRANT:  PROVIDED, THAT IF THE REGISTRANT DOES NOT SPEAK
ENGLISH ADEQUATELY HE MAY APPEAR WITH A PERSON TO ACT AS INTERPRETER
FOR HIM:  AND PROVIDED FURTHER, THAT NO REGISTRANT MAY BE REPRESENTED
BEFORE THE LOCAL BOARD BY ANYONE ACTING AS ATTORNEY OR LEGAL COUNSEL." 
13 FED.REG.  4858. 

ORDER NO. 11350 ON MAY 3, 1967, IN RESPECTS NOT MATERIAL HERE.  32
FED.REG.  6961. 

JAMES VAN R. SPRINGER ARGUED THE CAUSE FOR THE UNITED STATES.  ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, BEATRICE ROSENBERG, PHILIP R. MONAHAN, AND ROGER A. PAULEY. 

MARVIN M. KARPATKIN ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE MICHAEL N. POLLET, MELVIN L. WULF, AND RHODA H. KARPATKIN. 
..END :













MONITOR PATRIOT CO. V. ROY, 401 U.S. 265 


       MONITOR PATRIOT CO. ET AL. V. ROY, EXECUTRIX

    CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE

   NO. 62.  ARGUED DECEMBER 17, 1970-- DECIDED FEBRUARY 24,

           1971. 


JUST BEFORE THE 1960 NEW HAMPSHIRE DEMOCRATICE PRIMARY ELECTION,
PETITIONER NEWSPAPER PUBLISHED A COLUMN CHARACTERIZING SENATORIAL
CANDIDATE ROY AS A "FORMER SMALL-TIME BOOTLEGGER."  ROY, WHO WAS NOT
ELECTED, SUED THE NEWSPAPER AND THE DISTRIBUTOR OF THE COLUMN FOR
LIBEL.  THE JUDGE TOLD THE JURY THAT ROY, AS A CANDIDATE, WAS A "PUBLIC
OFFICIAL," AND THAT A RULE REQUIRING A SHOWING THAT THE ARTICLE WAS
FALSE AND HAD BEEN PUBLISHED "WITH KNOWLEDGE OF ITS FALSITY OR WITH
RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR TRUE," APPLIED AS LONG AS
THE LIBEL CONCERNED "OFFICIAL" AS OPPOSED TO "PRIVATE" CONDUCT.  THE
JURY WAS INSTRUCTED THAT IF IT FOUND THE LIBEL TO BE IN THE "PUBLIC
NO EVIDENCE THAT IT HAD ENGAGED IN KNOWING OR RECKLESS FALSEHOOD, BUT
THAT IT HAD TO DECIDE ON THE "PREPONDERANCE OF THE EVIDENCE" WHETHER
THE NEWSPAPER WAS LIABLE.  IF THE PUBLICATION WAS IN THE "PRIVATE
WAS TRUE AND PUBLISHED ON A "LAWFUL OCCASION," AND (2) "CONDITIONAL
PRIVILEGE," IF THE ARTICLE WAS FALSE BUT IF THE PUBLICATION WAS "ON A
LAWFUL OCCASION, IN GOOD FAITH, FOR A JUSTIFIABLE PURPOSE, AND WITH A
BELIEF FOUNDED ON REASONABLE GROUNDS OF THE TRUTH OF THE MATTER
PUBLISHED."  THE JURY RETURNED A VERDICT AGAINST BOTH THE NEWSPAPER AND
THE DISTRIBUTOR OF THE COLUMN.  THE STATE SUPREME COURT AFFIRMED,
HOLDING THAT THE JURY PROPERLY CONSIDERED WHETHER THE ALLEGED LIBEL WAS
"RELEVANT" TO ROY'S FITNESS FOR OFFICE.  HELD: 

1.  PUBLICATIONS CONCERNING CANDIDATES FOR PUBLIC OFFICE MUST BE
ACCORDED AT LEAST AS MUCH PROTECTION UNDER THE FIRST AND FOURTEENTH
AMENDMENTS AS THOSE CONCERNING OCCUPANTS OF PUBLIC OFFICE.  PP. 270
272. 

2.  AS A MATTER OF CONSTITUTIONAL LAW, A CHARGE OF CRIMINAL CONDUCT,
NO MATTER HOW REMOTE IN TIME OR PLACE, CAN NEVER BE IRRELEVANT TO AN
OFFICIAL'S OR A CANDIDATE'S FITNESS FOR PURPOSES OF APPLYING THE
,KNOWING FALSEHOOD OR RECKLESS DISREGARD" RULE OF NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254.  PP. 272-277. 

3.  THE JURY HERE WAS ERRONEOUSLY PERMITTED TO DETERMINE THAT THE
CRIMINAL CHARGE WAS NOT "RELEVANT" AND THAT THE NEW YORK TIMES STANDARD
WAS INAPPLICABLE.  P. 277. 

109 N.H. 441, 254 A.2D 832, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND HARLAN, BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED. 
WHITE, J., FILED A CONCURRING OPINION, POST, P. 301.  BLACK, J., FILED
AN OPINION CONCURRING IN THE JUDGMENT AND DISSENTING IN PART, IN WHICH
DOUGLAS, J., JOINED, POST, P. 277. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON SEPTEMBER 10, 1960, THREE DAYS BEFORE THE NEW HAMPSHIRE DEMOCRATIC
PARTY'S PRIMARY ELECTION OF CANDIDATES FOR THE UNITED STATES SENATE,
THE CONCORD MONITOR, A DAILY NEWSPAPER IN CONCORD, NEW HAMPSHIRE,
PUBLISHED A SYNDICATED "D.C. MERRY-GO-ROUND" COLUMN DISCUSSING THE
FORTHCOMING ELECTION.  THE COLUMN SPOKE OF POLITICAL MANEUVERING IN THE
PRIMARY CAMPAIGN, REFERRED TO THE CRIMINAL RECORDS OF SEVERAL OF THE
CANDIDATES, AND CHARACTERIZED ALPHONSE ROY, ONE OF THE CANDIDATES, AS A
"FORMER SMALL-TIME BOOTLEGGER."  /1/  ROY WAS NOT ELECTED IN THE
PRIMARY, AND HE SUBSEQUENTLY SUED THE MONITOR PATRIOT CO. AND THE NORTH
AMERICAN NEWSPAPER ALLIANCE (NANA), THE DISTRIBUTOR OF THE COLUMN, FOR
LIBEL. 

THE NEWSPAPER AND NANA OFFERED "TRUTH" AS THEIR PRIMARY DEFENSE AT
TRIAL, AND EVIDENCE WAS PRESENTED ON THE ISSUE OF WHETHER OR NOT ROY
HAD IN FACT BEEN A BOOTLEGGER DURING THE PROHIBITION ERA.  THE
DEFENDANTS ALSO ALLEGED THAT THEY HAD PUBLISHED IN GOOD FAITH, WITHOUT
MALICE, WITH A REASONABLE BELIEF IN THE PROBABLE TRUTH OF THE CHARGE,
AND ON A LAWFUL OCCASION.  AT THE CLOSE OF THE EVIDENCE, THE TRIAL
JUDGE INSTRUCTED THE JURY AT GREAT LENGTH ON THE LAW TO BE APPLIED TO
THE CASE.  THREE POSSIBLE DEFENSES EMERGED FROM THESE JURY
INSTRUCTIONS. 

FIRST, THE TRIAL JUDGE TOLD THE JURY THAT ROY WAS A "PUBLIC OFFICIAL"
BY VIRTUE OF HIS CANDIDACY IN THE PRIMARY.  AS A CONSEQUENCE, A SPECIAL
RULE, REQUIRING A SHOWING THAT THE ARTICLE WAS FALSE AND HAD BEEN
PUBLISHED WITH "KNOWLEDGE OF ITS FALSITY OR WITH A RECKLESS DISREGARD
OF WHETHER IT WAS FALSE OR TRUE,; WOULD APPLY SO LONG AS WHETHER IT WAS
FALSE OR TRUE," WOULD APPLY SO LONG AS THE LIBEL CONCERNED "OFFICIAL
CONDUCT, AS OPPOSED TO "PRIVATE CONDUCT."  THIS PRIVATE-PUBLIC
DISTINCTION WAS ELABORATED AS FOLLOWS:  "IS IT MORE PROBABLE THAN
OTHERWISE THAT THE PUBLICATION THAT THE PLAINTIFF WAS A FORMER SMALL
TIME BOOTLEGGER WAS A PUBLIC AFFAIR ON A PAR WITH OFFICIAL CONDUCT OF
PUBLIC OFFICIALS?"  THE TRIAL JUDGE WENT ON: 

     "AS A CANDIDATE FOR THE UNITED STATES SENATE, THE PLAINTIFF
WAS

  WITHIN THE PUBLIC OFFICIAL CONCEPT, AND A CANDIDATE MUST

  SURRENDER TO PUBLIC SCRUTINY AND DISCUSSION SO MUCH OF HIS

PRIVATE CHARACTER AS AFFECTS HIS FITNESS FOR OFFICE.  THAT IS,

  ANYTHING WHICH MIGHT TOUCH ON ALPHONSE ROY'S FITNESS FOR THE

  OFFICE OF UNITED STATES SENATOR WOULD COME WITHIN THE CONCEPT OF

  OFFICIAL CONDUCT.  IF IT WOULD NOT TOUCH UPON OR BE RELEVANT TO

  HIS FITNESS FOR THE OFFICE FOR WHICH HE WAS A CANDIDATE BUT WAS

  RATHER A BRINGING FORWARD OF THE PLAINTIFF'S LONG FORGOTTEN

  MISCONDUCT IN WHICH THE PUBLIC HAD NO INTEREST, THEN IT WOULD BE

  A PRIVATE MATTER IN THE PRIVATE SECTOR." 

THE JUDGE THEN INSTRUCTED THE JURY THAT IF IT FOUND THE LIBEL TO BE IN
THE "PUBLIC SECTOR" IT MUST BRING IN A VERDICT FOR NANA, SINCE THERE
HAD BEEN NO EVIDENCE THAT NANA HAD ENGAGED IN KNOWING OR RECKLESS
FALSEHOOD, BUT THAT IT STILL HAD TO DECIDE ON THE "PREPONDERANCE OF THE
EVIDENCE" WHETHER THE NEWSPAPER WAS LIABLE. 

SUPPOSING THE PUBLICATION TO BE IN THE "PRIVATE SECTOR," THE TRIAL
JUDGE INSTRUCTED THE JURY THAT THERE WERE TWO POSSIBLE DEFENSES
AVAILABLE TO THE NEWSPAPER AND NANA.  THE FIRST WAS "JUSTIFICATION,"
WHICH WOULD PREVAIL IF THE JURY FOUND THAT THE ARTICLE WAS BOTH TRUE
AND PUBLISHED ON A "LAWFUL OCCASION."  /2/  THE SECOND DEFENSE WAS
"CONDITIONAL PRIVILEGE," WHICH COULD PREVAIL EVEN IF THE JURY FOUND THE
ARTICLE TO BE FALSE, BUT ONLY IF IT ALSO FOUND THAT ITS PUBLICATION WAS
"ON A LAWFUL OCCASION, IN GOOD FAITH, FOR A JUSTIFIABLE PURPOSE, AND
WITH A BELIEF FOUNDED ON REASONABLE GROUNDS OF THE TRUTH OF THE MATTER
PUBLISHED." 

THE JURY RETURNED A VERDICT OF $20,000, OF WHICH $10,000 WAS AGAINST
THE NEWSPAPER AND $10,000 AGAINST NANA.  ON APPEAL, THE NEW HAMPSHIRE
SUPREME COURT AFFIRMED THE JUDGMENT, HOLDING THAT THE TRIAL JUDGE
PROPERLY SENT TO THE JURY THE QUESTION OF WHETHER OR NOT THE PARTICULAR
LIBEL ALLEGED WAS "RELEVANT" TO ROY'S FITNESS FOR OFFICE.  109 N.H.
441, 254 A.2D 832.  WE GRANTED CERTIORARI IN ORDER TO CONSIDER THE
CONSTITUTIONAL ISSUES PRESENTED BY THE CASE.  397 U.S. 904. 

        I 

IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 279-280, WE HELD
THAT THE FIRST AND FOURTEENTH AMENDMENTS REQUIRE "A FEDERAL RULE THAT
PROHIBITS A PUBLIC OFFICIAL FROM RECOVERING DAMAGES FOR A DEFAMATORY
FALSEHOOD RELATING TO HIS OFFICIAL CONDUCT UNLESS HE PROVES THAT THE
STATEMENT WAS MADE WITH 'ACTUAL MALICE'-- THAT IS, WITH KNOWLEDGE THAT
IT WAS FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR
NOT."  THE RULE OF NEW YORK TIMES WAS BASED ON A RECOGNITION THAT THE
FIRST AMENDMENT GUARANTEE OF A FREE PRESS IS INEVITABLY IN TENSION WITH
STATE LIBEL LAWS DESIGNED TO SECURE SOCIETY'S INTEREST IN THE
PROTECTION OF INDIVIDUAL REPUTATION.  THE APPROACH OF NEW YORK TIMES
WAS TO IDENTIFY A CLASS OF PERSON-- THERE PUBLIC OFFICIALS-- AND A TYPE
OF ACTIVITY-- THERE OFFICIAL CONDUCT-- AND TO REQUIRE AS TO DEFAMATIONS
RESPECTING THEM A PARTICULARLY HIGH STANDARD OF LIABILITY-- KNOWING
FALSEHOOD OR RECKLESS DISREGARD OF THE TRUTH.  LATER CASES HAVE MADE IT
CLEAR THAT THE APPLICABILITY OF THIS BASIC APPROACH IS NOT LIMITED TO
THOSE IN PUBLIC OFFICE OR TO THE PERFORMANCE OF OFFICIAL ACTS, OR, FOR
THAT MATTER, TO CONVENTIONAL CIVIL LIBEL SUITS.  GARRISON V. LOUISIANA,
379 U.S. 64; CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130; GREENBELT
COOPERATIVE PUBLISHING ASSN. V. BRESLER, 398 U.S. 6. 

THIS CASE WENT TO THE JURY IN DECEMBER 1966, AFTER OUR DECISIONS IN
NEW YORK TIMES AND GARRISON, BUT BEFORE CURTIS AND GREENBELT.  THE
TRIAL JUDGE INSTRUCTED THE JURY THAT ROY, AS A CANDIDATE FOR ELECTIVE
PUBLIC OFFICE, WAS A "PUBLIC OFFICIAL," AND THAT CHARACTERIZATION HAS
NOT BEEN CHALLENGED HERE.  GIVEN THE LATER CASES, IT MIGHT BE
PREFERABLE TO CATEGORIZE A CANDIDATE AS A "PUBLIC FIGURE," IF FOR NO
OTHER REASON THAN TO AVOID STRAINING THE COMMON MEANING OF WORDS.  BUT
THE QUESTION IS OF NO IMPORTANCE SO FAR AS THE STANDARD OF LIABILITY IN
THIS CASE IS CONCERNED, FOR IT IS ABUNDANTLY CLEAR THAT, WHICHEVER TERM
IS APPLIED, PUBLICATIONS CONCERNING CANDIDATES MUST BE ACCORDED AT
LEAST AS MUCH PROTECTION UNDER THE FIRST AND FOURTEENTH AMENDMENTS AS
THOSE CONCERNING OCCUPANTS OF PUBLIC OFFICE.  THAT NEW YORK TIMES
ITSELF WAS INTENDED TO APPLY TO CANDIDATES, IN SPITE OF THE USE OF THE
MORE RESTRICTED "PUBLIC OFFICIAL" TERMINOLOGY, IS READILY APPARENT FROM
THAT OPINION'S TEXT AND CITATIONS TO CASE LAW.  /3/  AND IF IT BE
CONCEDED THAT THE FIRST AMENDMENT WAS "FASHIONED TO ASSURE THE
UNFETTERED INTERCHANGE OF IDEAS FOR THE BRINGING ABOUT OF POLITICAL AND
SOCIAL CHANGES DESIRED BY THE PEOPLE," ROTH V. UNITED STATES, 354 U.S.
476, 484, THEN IT CAN HARDLY BE DOUBTED THAT THE CONSTITUTIONAL
GUARANTEE HAS ITS FULLEST AND MOST URGENT APPLICATION PRECISELY TO THE
CONDUCT OF CAMPAIGNS FOR POLITICAL OFFICE. 

    II 

THE JURY IN THIS CASE RETURNED VERDICTS AGAINST BOTH THE NEWSPAPER
AND NANA.  IT IS CLEAR, THEREFORE, THAT IT FOUND THE BOOTLEGGER CHARGE
TO BE IN THE "PRIVATE SECTOR,, SINCE IT HAD BEEN INSTRUCTED THAT UNLESS
IT SO FOUND IT COULD NOT IMPOSE LIABILITY ON NANA.  IT IS POSSIBLE THAT
HAVING MADE THIS DETERMINATION, IT THEN CONCLUDED THAT THE CHARGE WAS
TRUE BUT "UNJUSTIFIED"-- THAT IS, THAT IT HAD BEEN PUBLISHED WITHOUT A
"LAWFUL OCCASION."  IN ANY EVENT, UNDER THE TRIAL JUDGE'S INSTRUCTIONS
IT WAS ALSO FREE TO RETURN A MONEY VERDICT IF IT FOUND THAT THE
PUBLICATION WAS FALSE AND HAD NOT BEEN MADE "IN GOOD FAITH," FOR A
JUSTIFIABLE PURPOSE," AND WITH A "BELIEF FOUNDED ON REASONABLE GROUNDS
OF THE TRUTH OF THE MATTER PUBLISHED."  SINCE THIS STANDARD IS FAR LESS
STRINGENT THAN THAT OF KNOWING FALSEHOOD OR RECKLESS DISREGARD OF THE
TRUTH, THE JUDGMENT MUST BE REVERSED UNLESS IT CAN BE SHOWN THAT THE
NEW YORK TIMES RULE IS NOT APPLICABLE BECAUSE OF THE NATURE OF THE
LIBEL IN QUESTION.  CF. OCALA STAR-BANNER CO. V. DAMRON, POST, P. 295. 

THE RESPONDENT ARGUES THAT UNDER NEW YORK TIMES A PLAINTIFF HAS A
SPECIAL BURDEN OF PROOF ONLY AS TO LIBELS "RELATING TO OFFICIAL
CONDUCT," THAT FOR A CANDIDATE "OFFICIAL CONDUCT" MEANS "CONDUCT
RELEVANT TO FITNESS FOR OFFICE," AND THAT THE PUBLIC-PRIVATE ISSUE IS
ONE OF FACT FOR THE JURY.  IN OUR VIEW, HOWEVER, THE SYLLOGISTIC
MANIPULATION OF DISTINCTIONS BETWEEN "PRIVATE SECTORS" AND ;PUBLIC
IN RESOLVING QUESTIONS OF FIRST AMENDMENT PROTECTION. 

IN GARRISON V. LOUISIANA, SUPRA, WE REVERSED A CONVICTION FOR
CRIMINAL LIBEL OF A MAN WHO HAD CHARGED THAT A GROUP OF STATE COURT
JUDGES WERE INEFFICIENT, TOOK EXCESSIVE VACATIONS, OPPOSED OFFICIAL
INVESTIGATIONS OF VICE, AND WERE POSSIBLY SUBJECT TO "RACKETEER
INFLUENCES."  THE LOUISIANA SUPREME COURT HAD HELD THAT THESE
STATEMENTS WERE NOT "CRITICISMS . . . OF THE MANNER IN WHICH ANY ONE OF
THE EIGHT JUDGES CONDUCTED HIS COURT WHEN IN SESSION," BUT RATHER WERE
ACCUSATIONS OF CRIME AND "PERSONAL ATTACKS UPON THE INTEGRITY AND
HONESTY" OF THE JUDGES.  THIS COURT REJECTED THE PROPOSED DISTINCTION: 

"OF COURSE, ANY CRITICISM OF THE MANNER IN WHICH A PUBLIC

OFFICIAL PERFORMS HIS DUTIES WILL TEND TO AFFECT HIS PRIVATE, AS

  WELL AS HIS PUBLIC, REPUTATION.  THE NEW YORK TIMES RULE IS NOT

  RENDERED INAPPLICABLE MERELY BECAUSE AN OFFICIAL'S PRIVATE

  REPUTATION, AS WELL AS HIS PUBLIC REPUTATION, IS HARMED.  THE

  PUBLIC-OFFICIAL RULE PROTECTS THE PARAMOUNT PUBLIC INTEREST IN A

  FREE FLOW OF INFORMATION TO THE PEOPLE CONCERNING PUBLIC

  OFFICIALS, THEIR SERVANTS.  TO THIS END, ANYTHING WHICH MIGHT

  TOUCH ON AN OFFICIAL'S FITNESS FOR OFFICE IS RELEVANT.  FEW

  PERSONAL ATTRIBUTES ARE MORE GERMANE TO FITNESS FOR OFFICE THAN

  DISHONESTY, MALFEASANCE, OR IMPROPER MOTIVATION, EVEN THOUGH

  THESE CHARACTERISTICS MAY ALSO AFFECT THE OFFICIAL'S PRIVATE

 CHARACTER."  379 U.S.,AT 76-77. 

CF. OCALA STAR-BANNER CO. V. DAMRON, SUPRA. 

THE CONSIDERATIONS THAT LED US THUS TO REFORMULATE THE "OFFICIAL
CONDUCT" RULE OF NEW YORK TIMES IN TERMS OF "ANYTHING WHICH MIGHT TOUCH
ON AN OFFICIAL'S FITNESS FOR OFFICE" APPLY WITH SPECIAL FORCE TO THE
CASE OF THE CANDIDATE.  INDEED, WHATEVER VITALITY THE "OFFICIAL
CONDUCT" CONCEPT MAY RETAIN WITH REGARD TO OCCUPANTS OF PUBLIC OFFICE,
CF. GARRISON, SUPRA, AT 72 N. 8, IT IS CLEARLY OF LITTLE APPLICABILITY
IN THE CONTEXT OF AN ELECTION CAMPAIGN.  THE PRINCIPAL ACTIVITY OF A
CANDIDATE IN OUR POLITICAL SYSTEM, HIS "OFFICE," SO TO SPEAK, CONSISTS
IN PUTTING BEFORE THE VOTERS EVERY CONCEIVABLE ASPECT OF HIS PUBLIC AND
PRIVATE LIFE THAT HE THINKS MAY LEAD THE ELECTORATE TO GAIN A GOOD
IMPRESSION OF HIM.  A CANDIDATE WHO, FOR EXAMPLE, SEEKS TO FURTHER HIS
CAUSE THROUGH THE PROMINENT DISPLAY OF HIS WIFE AND CHILDREN CAN HARDLY
ARGUE THAT HIS QUALITIES AS A HUSBAND OR FATHER REMAIN OF "PURELY
PRIVATE" CONCERN.  AND THE CANDIDATE WHO VAUNTS HIS SPOTLESS RECORD AND
STERLING INTEGRITY CANNOT CONVINCINGLY CRY "FOUL."  WHEN AN OPPONENT OR
AN INDUSTRIOUS REPORTER ATTEMPTS TO DEMONSTRATE THE CONTRARY.  /4/  ANY
TEST ADEQUATE TO SAFEGUARD FIRST AMENDMENT GUARANTEES IN THIS AREA MUST
GO FAR BEYOND THE CUSTOMARY MEANING OF THE PHRASE "OFFICIAL CONDUCT." 

GIVEN THE REALITIES OF OUR POLITICAL LIFE, IT IS BY NO MEANS EASY TO
SEE WHAT STATEMENTS ABOUT A CANDIDATE MIGHT BE ALTOGETHER WITHOUT
RELEVANCE TO HIS FITNESS FOR THE OFFICE HE SEEKS.  THE CLASH OF
REPUTATIONS IS THE STAPLE OF ELECTION CAMPAIGNS, AND DAMAGE TO
REPUTATION IS, OF COURSE, THE ESSENCE OF LIBEL.  BUT WHETHER THERE
REMAINS SOME EXIGUOUS AREA OF DEFAMATION AGAINST WHICH A CANDIDATE MAY
HAVE FULL RECOURSE IS A QUESTION WE NEED NOT DECIDE IN THIS CASE.  THE
TRIAL JUDGE PRESENTED THE ISSUE TO THE JURY IN THE FORM OF THE
QUESTION:  "IS IT MORE PROBABLE THAN OTHERWISE THAT THE PUBLICATIONS
THAT THE PLAINTIFF WAS A FORMER SMALL-TIME BOOTLEGGER WAS A PUBLIC
AFFAIR ON A PAR WITH OFFICIAL CONDUCT OF PUBLIC OFFICIALS?"  THIS
INSTRUCTION, AND THE OTHERS LIKE IT, LEFT THE JURY FAR MORE LEEWAY TO
ACT AS CENSORS THAN IS CONSISTENT WITH THE PROTECTION OF THE FIRST AND
FOURTEENTH AMENDMENTS IN THE SETTING OF A POLITICAL CAMPAIGN. 

THE APPLICATION OF THE TRADITIONAL CONCEPTS OF TORT LAW TO THE
CONDUCT OF A POLITICAL CAMPAIGN IS BOUND TO RAISE DANGERS FOR FREEDOM
OF SPPECH AND OF THE PRESS.  THE REASONABLE-MAN STANDARD OF LIABILITY,
FOR EXAMPLE, SERVES ADMIRABLY THE ESSENTIAL FUNCTION OF IMPOSING AN
OBJECTIVE AND SOCIALLY ACCEPTABLE LIMIT ON THE FREEDOM OF AN INDIVIDUAL
TO ACT WITH RELATION TO OTHERS.  BUT UNDER OUR SYSTEM OF GOVERNMENT, WE
HAVE CHOSEN TO AFFORD PROTECTION EVEN TO "OPINIONS THAT WE LOATHE AND
BELIEVE TO BE FRAUGHT WITH DEATH," ABRAMS V. UNITED STATES, 250 U.S.
616, 630 (HOLMES, J., DISSENTING).  A COMMUNITY THAT IMPOSED LEGAL
LIABILITY ON ALL STATEMENTS IN A POLITICAL CAMPAIGN DEEMED
"UNREASONABLE" BY A JURY WOULD HAVE ABANDONED THE FIRST AMENDMENT AS WE
KNOW IT.  LIKEWISE, A "PREPONDERANCE OF THE EVIDENCE" BURDEN OF PROOF
PLAYS AN INDISPENSABLE ROLE IN THE CONTROL OF PRIVATE NEGLIGENCE.  BUT
WE HAVE RECOGNIZED THAT IN THE REALM OF POLITICAL BELIEF "THE TENETS OF
ONE MAN MAY SEEM THE RANKEST ERROR TO HIS NEIGHBOR," AND THAT THE
ADVOCATES WHOM WE PROTECT MAY RESORT TO "EXAGGERATION, TO VILIFICATION
OF MEN WHO HAVE BEEN, OR ARE, PROMINENT IN CHURCH OR STATE, AND EVEN TO
FALSE STATEMENT," CANTWELL V. CONNECTICUT, 310 U.S. 296, 310.  IT IS
SIMPLY INCONSISTENT WITH THIS COMMITMENT TO PERMIT THE IMPOSITION OF
LIABILITY FOR POLITICAL SPEECH THAT "MORE PROBABLY THAN OTHERWISE"  IN
THE OPINION OF THE JURY "WOULD NOT TOUCH UPON OR BE RELEVANT" TO A
CANDIDATE'S FITNESS FOR OFFICE.  CF. SPEISER V. RANDALL, 357 U.S. 513,
525-526; SMITH V. CALIFORNIA, 361 U.S. 147.     IT IS PERHAPS
UNAVOIDABLE THAT IN THE AREA OF TENSION BETWEEN THE CONSTITUTION AND
THE VARIOUS STATE LAWS OF DEFAMATION THERE WILL BE SOME UNCERTAINTY AS
TO WHAT PUBLICATIONS ARE AND WHAT ARE NOT PROTECTED.  THE MENTAL
ELEMENT OF "KNOWING OR RECKLESS DISREGARD"  REQUIRED UNDER THE NEW YORK
TIMES TEST, FOR EXAMPLE, IS NOT ALWAYS OF EASY OF ASCERTAINMENT. 
"INEVITABLY ITS OUTER LIMITS WILL BE MARKED OUT THROUGH CASE-BY-CASE
ADJUDICATION, AS IS TRUE WITH SO MANY LEGAL STANDARDS FOR JUDGING
CONCRETE CASES, WHETHER THE STANDARD IS PROVIDED BY THE CONSTITUTION,
STATUTES, OR CASE LAW."  ST. AMANT V. THOMPSON, 390 U.S. 727, 730-731. 
BUT THERE IS A MAJOR, AND IN THIS CASE DECISIVE, DIFFERENCE BETWEEN
LIABILITY BASED ON A STANDARD OF CARE, AND LIABILITY BASED ON A
JUDGMENT OF THE "RELEVANCE" OF A PAST INCIDENT OF CRIMINAL CONDUCT TO
AN OFFICIAL'S OR A CANDIDATE'S FITNESS FOR OFFICE.  A STANDARD OF CARE
"CAN BE NEUTRAL WITH RESPECT TO CONTENT OF THE SPEECH INVOLVED, FREE OF
HISTORICAL TAINT, AND ADJUSTED TO STRIKE A FAIR BALANCE BETWEEN THE
INTERESTS OF THE COMMUNITY IN FREE CIRCULATION OF INFORMATION AND THOSE
OF INDIVIDUALS IN SEEKING RECOMPENSE FOR HARM DONE BY THE CIRCULATION
OF DEMATORY FALSEHOOD."  CURTIS PUBLISHING CO. V. BUTTS, SUPRA, AT 153
(OPINION OF HARLAN, J.).  A STANDARD OF "RELEVANCE," ON THE OTHER HAND,
ESPECIALLY SUCH A STANDARD APPLIED BY A JURY UNDER THE PREPONDERANCE-OF
THE-EVIDENCE TEST, IS UNLIKELY TO BE NEUTRAL WITH RESPECT TO THE
CONTENT OF SPEECH AND HOLDS A REAL DANGER OF BECOMING AN INSTURMENT FOR
THE SUPPRESSION OF THOSE "VEHEMENT, CAUSTIC, AND SOMETIMES UNPLEASANTLY
SHARP ATTACKS," NEW YORK TIMES, SUPRA, AT 270, WHICH MUST BE PROTECTED
IF THE GUARANTEES OF THE FIRST AND FOURTEENTH AMENDMENTS ARE TO
PREVAIL. 

WE THEREFORE HOLD AS A MATTER OF CONSTITUTIONAL LAW THAT A CHARGE OF
CRIMINAL CONDUCT, NO MATTER HOW REMOTE IN TIME OR PLACE, CAN NEVER BE
IRRELEVANT TO AN OFFICIAL'S OR A CANDIDATE'S FITNESS FOR OFFICE FOR
PURPOSES OF APPLICATION OF THE "KNOWING FALSEHOOD OR RECKLESS
DISREGARD" RULE OF NEW YORK TIMES CO. V. SULLIVAN.  SINCE THE JURY IN
THIS CASE WAS PERMITTED TO MAKE ITS OWN UNGUIDED DETERMINATION THAT THE
CHARGE OF PRIOR CRIMINAL ACTIVITY WAS NOT "RELEVANT," AND THAT THE NEW
YORK TIMES STANDARD WAS THUS INAPPLICABLE, THE JUDGMENT MUST BE
REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

         IT IS SO ORDERED. 

/1/  THE TEXT OF THE PORTION OF THE COLUMN CONCERNING THE NEW
HAMPSHIRE PRIMARY WAS AS FOLLOWS:

        "POLITICAL SNAFU 

"ROCK-RIBBED REPUBLICAN NEW HAMPSHIRE, WHOSE EX-GOV.  SHERMAN ADAMS
WAS TOP KICK IN THE WHITE HOUSE FOR YEARS AND WHOSE SEN. STYLES BRIDGES
IS STILL TOP KICK ON THE GOP SIDE OF THE SENATE, IS SO FOULED UP IN A
PRIMARY SNAFU THAT THE STATE MAY GO DEMOCRATIC THIS YEAR.  THE PRIMARY
VERDICT IS DUE NEXT TUESDAY. 

"EVEN THAT ABLE SENATE STALWART, STYLES BRIDGES, IS RESTIRRING
HIMSELF.  HE HAS NOTHING TO WORRY ABOUT FROM HIS REPUBLICAN OPPONENT,
BUT THE DEMOCRATS HAVE PUT UP A DYNAMIC DARTMOUGH PROFESSOR, HERBERT
HILL, AGAINST HIM.  THE PROFESSOR CAME WITHIN 11,000 VOTES OF DEFEATING
SHERMAN ADAMS, LATELY OF VICUNA-COAT FAME, IN THE 1948 GUBERNATORIAL
RACE. 

"CURIOUSLY, THE DEMOCRATIC PRIMARY HAS BEEN CLUTTERED WITH A MOTLEY
ASSORTMENT OF CANDIDATES WHO HAVE CHALLENGED HILL FOR THE PRIVILEGE OF
RUNNING AGAINST BRIDGES.  THAT SLY, OLD REPUBLICAN DISCLAIMS ANY
CONNECTION WITH IT, BUT HE APPEARS PLEASED OVER THE MUDDYING OF
DEMOCRATIC WATERS. 

"ONE OF HILL'S PRIMARY OPPONENTS FRANK L. SULLIVAN, WAS RELEASED
FROM THE GRASMERE COUNTY WORK FARM JUST IN TIME TO FILE FOR THE
SENATE.  WITH A POLICE RECORD OF NO FEWER THAN 19 CONVICTIONS FOR
DRUNKENNESS SINCE 1945, HE WAS SERVING HIS LATEST 90-DAY SENTENCE. 

        "CURIOUS CALL 

"TO MAKE SURE HE WOULD GET OUT IN TIME TO RUN FOR THE SENATE, A
FORMER SMALL-TIME BOOTLEGGER AND LATER U.S. MARSHALL, ALPHONSE ROY,
TELEPHONED THE GRASMERE WARDEN ABOUT SULLIVAN. 

"RALPH LAVALLEE IN CHARGE OF GRASMERE, ADMITTED TO THIS COLUMN THAT
HE HAD RECEIVED A TELEPHONE INQUIRY FROM ROY AS TO WHETHER SULLIVAN
WOULD BE RELEASED IN TIME TO FILE.  BUT THE WARDEN DENIED ANOTHER
REPORT THAT ROY HAD ANNOUNCED HE WAS CALLING 'ON BEHALF OF MY FRIEND
STYLES.' 

"'I DON'T WANT TO GET IMPLICATED IN ANYTHING LIKE THAT,' SAID
LAVALLEE, 'ROY DIDN'T MENTION SENATOR BRIDGES.' 

"SULLIVAN HAPPILY GOT OUT OF THE WORKHOUSE IN TIME TO RUN FOR THE
MOST DISTINGUISHED LEGISLATIVE BODY IN THE WORLD.  AND WHO SHOULD TURN
UP ON THE BALLOT BUT THE SAME ALPHONSE ROY WHO WAS SO EAGER TO GET HIM
OUT OF THE CLINK. 

"BECAUSE OF THE PECULIAR POPULATION DIVISION OF NEW HAMPSHIRE, THE
IRISH CATHOLICS MAY BE INCLINED TO VOTE FOR A FRANK SULLIVAN WHILE THE
FRENCH CANADIANS COULD BE ATTRACTED BY A NAME LIKE ALPHONSE ROY.  THE
EFFECT WOULD BE TO CUT DOWN HERB HILL'S CHANCES. 

        "CONVICTS FOR SENATOR 

"TWO OTHER CURIOUS CANDIDATES, WHO TRIED TO RUN IN THE DEMOCRATIC
PRIMARY AGAINST HILL, WERE HAROLD P. MCCARTHY WHO HAS A RECORD OF NINE
CONVICTIONS FOR DRUNKENNESS, ASSAULT, AND BRAWLING, AND CLEMENT P.
ROBINSON JR., WHO HAS A RECORD OF SIX BRUSHES WITH THE LAW FOR
DRUNKENNESS AND TRAFFIC VIOLATIONS.  ROBINSON ALSO RECEIVED A 30-DAY
SUSPENDED SENTENCE FOR STEALING TWO POWER LAWNMOWERS AND A CONVICTION
FOR THE NONSUPPORT OF HIS WIFE AND THREE CHILDREN. 

"BUT AT LEAST PROFESSOR HILL MANAGED TO PERSUADE THE NEW HAMPSHIRE
BALLOT LAW COMMISSION INTO KNOCKING MCCARTHY AND ROBINSON OFF THE
BALLOT." 

/2/  THE TRIAL JUDGE GAVE THE JURY THE FOLLOWING DEFINITION OF A
"LAWFUL OCCASION": 

"IF THE END TO BE ATTAINED BY THE PUBLICATION IS JUSTIFIABLE, THAT
IS, TO GIVE USEFUL INFORMATION TO THOSE WHO HAVE A RIGHT AND OUGHT TO
KNOW IN ORDER THAT THEY MAY ACT UPON SUCH INFORMATION, THE OCCASION IS
LAWFUL.  WHERE, HOWEVER, THERE IS MERELY THE COLOR OF A LAWFUL OCCASION
AND THE DEFENDANT, INSTEAD OF ACTING IN GOOD FAITH, ASSUMES TO ACT FOR
SOME JUSTIFIABLE END MERELY AS A PRETENSE TO PUBLISH AND CIRCULATE
DEFAMATORY MATTER, OR FOR OTHER UNLAWFUL PURPOSE, HE IS LIABLE IN THE
SAME MANNER AS IF SUCH PRETENSE HAD NOT BEEN RESORTED TO."  THE TRIAL
JUDGE PLACED THE BURDEN OF SHOWING A "LAWFUL OCCASION" ON THE
DEFENDANTS. 

/3/  ONE OF THE CITATIONS WAS TO A KANSAS DECISION WHICH ADMIRABLY
STATED THE CASE FOR THE INCLUSION OF CANDIDATES WITHIN THE RULE: 

"(IT IS OF THE UTMOST CONSEQUENCE THAT THE PEOPLE SHOULD DISCUSS THE
CHARACTER AND QUALIFICATIONS OF CANDIDATES FOR THEIR SUFFRAGES.  THE
IMPORTANCE TO THE STATE AND TO SOCIETY OF SUCH DISCUSSIONS IS SO VAST,
AND THE ADVANTAGES DERIVED ARE SO GREAT, THAT THEY MORE THAN COUNTER
BALANCE THE INCONVENIENCE OF PRIVATE PERSONS WHOSE CONDUCT MAY BE
INVOLVED, AND OCCASIONAL INJURY TO THE REPUTATIONS OF INDIVIDUALS MUST
YIELD TO THE PUBLIC WELFARE, ALTHOUGH AT TIMES SUCH INJURY MAY BE
GREAT.  THE PUBLIC BENEFIT FROM PUBLICITY IS SO GREAT, AND THE CHANCE
OF INJURY TO PRIVATE CHARACTER SO SMALL, THAT SUCH DISCUSSION MUST BE
PRIVILEGED."  COLEMAN V. MACLENNAN, 78 KAN. 711, 724, 98 P. 281, 286
(1908). 

/4/  A COMMENTATOR WRITING IN 1949 DESCRIBED THE AMBIENCE AS
FOLLOWS: 

"CHARGES OF GROSS INCOMPETENCE, DISREGARD OF THE PUBLIC INTEREST,
COMMUNIST SYMPATHIES, AND THE LIKE HAVE USUALLY FILLED THE AIR; AND
HINTS OF BRIBERY, EMBEZZLEMENT, AND OTHER CRIMINAL CONDUCT ARE NOT
INFREQUENT.  IF ACTIONABLE DEFAMATION IS POSSIBLE IN THIS FIELD, ONE
MIGHT SUPPOSE THAT THE CHIEF ENERGIES OF THE COURTS, FOR SOME TIME
AFTER EVERY POLITICAL CAMPAIGN, WOULD BE ABSORBED BY LIBEL AND SLANDER
SUITS."  NOEL, DEFAMATION OF PUBLIC OFFICERS AND CANDIDATES, 49
COL.L.REV.  875. 

(FOR CONCURRING OPINION OF MR. JUSTICE WHITE, SEE POST, P. 301.) 

SEPARATE OPINION OF MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS
JOINS.  /1/ 

I CONCUR IN THE JUDGMENTS OF THE COURT IN THIS CASE AND IN NO. 109
AND NO. 118, FOR THE REASONS SET OUT IN MY CONCURRING OPINION IN NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 293 (1964), IN MY CONCURRING
AND DISSENTING OPINION IN CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130,
170 (1967), AND IN MR. JUSTICE DOUGLAS' CONCURRING OPINION IN GARRISON
V. LOUISIANA, 379 U.S. 64, 80 (1964).  HOWEVER, I DISSENT FROM THOSE
PORTIONS OF THE OPINIONS IN THIS CASE AND NO. 118 WHICH WOULD PERMIT
THESE LIBEL CASES TO BE TRIED AGAIN UNDER A DIFFERENT SET OF JURY
INSTRUCTIONS.  AS I HAVE STATED BEFORE, "(IT IS TIME FOR THIS COURT TO
ABANDON NEW YORK TIMES CO. V. SULLIVAN AND ADOPT THE RULE TO THE EFFECT
THAT THE FIRST AMENDMENT WAS INTENDED TO LEAVE THE PRESS FREE FROM THE
HARASSMENT OF LIBEL JUDGMENTS."  CURTIS PUBLISHING CO. V. BUTTS, SUPRA,
AT 172 (SEPARATE OPINION OF BLACK, J.). 

/1/  (THIS OPINION APPLIES ALSO TO NO. 109, TIME, INC. V. PAPE,
POST, P. 279, AND NO. 118, OCALA STAR BANNER CO. ET AL. V. DAMRON,
POST, P. 295.) 

EDWARD BENNETT WILLIAMS ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEFS WERE HAROLD UNGAR AND JOSEPH A. MILLIMET. 

STANLEY M. BROWN ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

..END :







TIME, INC. V. PAPE, 401 U.S. 279 


       TIME, INC. V. PAPE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 109.  ARGUED DECEMBER 16, 1970-- DECIDED FEBRUARY 24,

           1971 


IN A DISCUSSION OF "POLICE BRUTALITY AND RELATED PRIVATE VIOLENCE"
IN ITS 1961 REPORT, THE CIVIL RIGHTS COMMISSION MENTIONED THE CASE OF
MONROE V. PAPE, 365 U.S. 167, AND LISTED SOME OF THE ALLEGATIONS OF
MONROE'S CIVIL RIGHTS COMPLAINT FILED AGAINST CERTAIN CHICAGO POLICEMEN
HEADED BY DEPUTY CHIEF OF DETECTIVES PAPE.  IN AN ARTICLE ABOUT THE
REPORT, TIME MAGAZINE QUOTED FROM A SUMMARY OF THE COMPLAINT, WITHOUT
INDICATING THAT THE CHARGES WERE MONROE'S AND NOT THE INDEPENDENT
FINDINGS OF THE COMMISSION.  PAPE SUED THE PETITIONER PUBLISHER FOR
LIBEL.  THE COURT OF APPEALS REVERSED THE DISTRICT COURT'S GRANT OF
TIME'S MOTION FOR SUMMARY JUDGMENT, HOLDING THAT THERE HAD TO BE A
TRIAL ON THE QUESTION OF WHETHER TIME'S FAILURE TO MAKE CLEAR THAT IT
WAS REPORTING NO MORE THAN ALLEGATIONS SHOWED "ACTUAL MALICE"
(KNOWLEDGE THAT THE INFORMATION WAS FALSE OR RECKLESS DISREGARD OF
WHETHER IT WAS FALSE OR NOT) UNDER THE RULE OF NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254.  AT THE TRIAL THE AUTHOR OF THE ARTICLE AND THE
RESEARCHER ADMITTED AWARENESS THAT THE WORDING OF THE REPORT HAD BEEN
SIGNIFICANTLY ALTERED BUT INSISTED THAT ITS REAL MEANING HAD NOT BEEN
CHANGED.  THE DISTRICT COURT GRANTED TIME'S MOTION FOR A DIRECTED
VERDICT AT THE CLOSE OF THE EVIDENCE, BUT THE COURT OF APPEALS
REVERSED, HOLDING THAT THE JURY SHOULD DETERMINE WHETHER THE OMISSION
OF THE WORD "ALLEGED" SHOWED "ACTUAL MALICE."  BOTH COURTS AGREED THAT
PAPE WAS A "PUBLIC OFFICIAL" AND THAT THE ARTICLE CONCERNED HIS
"OFFICIAL CONDUCT."  HELD:  IN THE CIRCUMSTANCES OF THIS CASE THE
MAGAZINE DID NOT ENGAGE IN A "FALSIFICATION" SUFFICIENT IN ITSELF TO
SUSTAIN A JURY FINDING OF "ACTUAL MALICE."  PP. 284-292. 

(A) THE MAGAZINE'S OMISSION OF THE WORD "ALLEGED" AMOUNTED TO THE
ADOPTION OF ONE OF SEVERAL RATIONAL INTERPRETATIONS OF A DOCUMENT
BRISTLING WITH AMBIGUITIES, AND WHILE THAT CHOICE MIGHT REFLECT A
MISCONCEPTION, IT WAS NOT ENOUGH TO CREATE A JURY ISSUE OF "MALICE"
UNDER THE RULE OF NEW YORK TIMES, SUPRA, AS IT WOULD IMPOSE A STRICTER
STANDARD OF LIABILITY ON ERRORS OF INTERPRETATION OR JUDGMENT THAN ON
ERRORS OF HISTORIC FACT.  P. 290. 

(B) THIS HOLDING IS CONFINED TO THE SPECIFIC FACTS OF THIS CASE, AND
NOTHING HEREIN IS TO BE UNDERSTOOD AS MAKING THE WORD "ALLEGED" A
SUPERFLUITY IN PUBLISHED REPORTS OF INFORMATION DAMAGING TO
REPUTATION.  P. 292. 

419 F.2D 980, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  BLACK,
J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH DOUGLAS, J.,
JOINED, ANTE, P. 277.  HARLAN, J., FILED A DISSENTING OPINION, POST, P.
293. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN NOVEMBER 1961, THE UNITED STATES COMMISSION ON CIVIL RIGHTS ISSUED
THE FIFTH VOLUME OF ITS REPORT FOR THAT YEAR, A DOCUMENT ENTITLED
JUSTICE.  A PART OF JUSTICE WAS DEVOTED TO A STUDY OF "POLICE BRUTALITY
AND RELATED PRIVATE VIOLENCE," AND CONTAINED THE FOLLOWING PARAGRAPH: 

     "SEARCH, SEIZURE, AND VIOLENCE:  CHICAGO, 1958.-- THE SUPREME

  COURT OF THE UNITED STATES DECIDED THE CASE OF MONROE V. PAPE ON

  FEBRUARY 20, 1961.  ALTHOUGH THIS DECISION DID NOT FINALLY

  DISPOSE OF THE CASE, IT DID PERMIT THE PLAINTIFF TO SUE SEVERAL

CHICAGO POLICE OFFICERS FOR VIOLATION OF THE FEDERAL CIVIL RIGHTS

  ACTS ON THE BASIS OF A COMPLAINT WHICH ALLEGED THAT: 

     " . . . (ON OCTOBER 29, 1958, AT 5:56 A.M., THIRTEEN CHICAGO

  POLICE OFFICERS LED BY DEPUTY CHIEF OF DETECTIVES PAPE, BROKE

  THROUGH TWO DOORS OF THE MONROE APARTMENT, WOKE THE MONROE COUPLE

  WITH FLASHLIGHTS, AND FORCED THEM AT GUNPOINT TO LEAVE THEIR BED

  AND STAND NAKED IN THE CENTER OF THE LIVING ROOM; THAT THE

  OFFICERS ROUSED THE SIX MONROE CHILDREN AND HERDED THEM INTO THE

  LIVING ROOM; THAT DETECTIVE PAPE STRUCK MR. MONROE SEVERAL TIMES

WITH HIS FLASHLIGHT, CALLING HIM 'NIGGER' AND 'BLACK BOY'; THAT

  ANOTHER OFFICER PUSHED MRS. MONROE; THAT OTHER OFFICERS HIT AND

  KICKED SEVERAL OF THE CHILDREN AND PUSHED THEM TO THE FLOOR; THAT

  THE POLICE RANSACKED EVERY ROOM, THROWING CLOTHING FROM CLOSETS

  TO THE FLOOR, DUMPING DRAWERS, RIPPING MATTRESS COVERS; THAT MR.

  MONROE WAS THEN TAKEN TO THE POLICE STATION AND DETAINED ON

  'OPEN' CHARGES FOR TEN HOURS, DURING WHICH TIME HE WAS

  INTERROGATED ABOUT A MURDER AND EXHIBITED IN LINEUPS; THAT HE WAS

  NOT BROUGHT BEFORE A MAGISTRATE, ALTHOUGH NUMEROUS MAGISTRATE'S

COURTS WERE ACCESSIBLE; THAT HE WAS NOT ADVISED OF HIS PROCEDURAL

  RIGHTS; THAT HE WAS NOT PERMITTED TO CALL HIS FAMILY OR AN

  ATTORNEY; THAT HE WAS SUBSEQUENTLY RELEASED WITHOUT CRIMINAL

  CHARGES HAVING BEEN FILED AGAINST HIM."  JUSTICE 20-21. 

A WEEK LATER, TIME, A WEEKLY NEWS MAGAZINE, CARRIED A REPORT OF THE
COMMISSION'S NEW PUBLICATION.  THE TIME ARTICLE BEGAN: 

     "THE NEW PAPERBACK BOOK HAS 307 PAGES AND THE SIMPLE TITLE

  JUSTICE.  IT IS THE LAST OF FIVE VOLUMES IN THE SECOND REPORT OF

  THE U.S. COMMISSION ON CIVIL RIGHTS, FIRST CREATED BY CONGRESS IN

  1957.  JUSTICE CARRIES A CHILLING TEXT ABOUT POLICE BRUTALITY IN

  BOTH THE SOUTH AND THE NORTH-- AND IT STANDS AS A GRAVE

  INDICTMENT, SINCE ITS FACTS WERE CAREFULLY INVESTIGATED BY FIELD

AGENTS AND IT WAS SIGNED BY ALL SIX OF THE NOTED EDUCATORS WHO

  COMPRISE THE COMMISSION." 

THERE FOLLOWED A DESCRIPTION, WITH NUMEROUS DIRECT QUOTATIONS, OF ONE
OF THE INCIDENTS DESCRIBED IN JUSTICE, AND THEN THE FOLLOWING ACCOUNT
OF THE MONROE INCIDENT: 

     "SHIFTING TO THE NORTH, THE REPORT CITES CHICAGO POLICE

  TREATMENT OF NEGRO JAMES MONROE AND HIS FAMILY, WHO WERE AWAKENED

  IN THEIR WEST SIDE APARTMENT AT 5:45 A.M. BY 13 POLICE OFFICERS,

  OSTENSIBLY INVESTIGATING A MURDER.  THE POLICE, SAYS JUSTICE,

  'BROKE THROUGH TWO DOORS, WOKE THE MONROE COUPLE WITH FLASHLIGHTS

  . . . . '

THE TIME ARTICLE WENT ON TO QUOTE AT LENGTH FROM THE SUMMARY OF THE
MONROE COMPLAINT, WITHOUT INDICATING IN ANY WAY THAT THE CHARGES WERE
THOSE MADE BY MONROE RATHER THAN INDEPENDENT FINDINGS OF THE
COMMISSION. 

PAPE SUED TIME FOR LIBEL IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, THERE BEING DIVERSITY OF CITIZENSHIP. 
TIME MOVED TO DISMISS THE SUIT ON THE GROUND THAT THE ARTICLE WAS FAIR
COMMENT ON A GOVERNMENT REPORT AND THEREFORE PRIVILEGED UNDER ILLINOIS
LAW; THE DISTRICT COURT GRANTED THE MOTION, BUT THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT REVERSED.  318 F.2D 652.  AFTER REMAND, THIS
COURT DECIDED NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, AND ON THE
BASIS OF THAT DECISION THE DISTRICT COURT GRANTED TIME'S MOTION FOR
SUMMARY JUDGMENT.  ON APPEAL, THE COURT OF APPEALS AGAIN REVERSED,
HOLDING THAT THERE MUST BE A TRIAL ON THE QUESTION OF WHETHER TIME'S
FAILURE TO MAKE CLEAR THAT IT WAS REPORTING NO MORE THAN ALLEGATIONS
SHOWED "ACTUAL MALICE."  354 F.2D 558. 

AT THE TRIAL, PAPE CALLED THE POLICEMEN WHO HAD PARTICIPATED IN THE
MONROE RAID.  THEY ALL TESTIFIED THAT NOTHING RESEMBLING THE EVENTS
DESCRIBED IN THE TIME ARTICLE AS FINDINGS OF THE COMMISSION HAD
OCCURRED.  /1/  THERE WAS ALSO EXTENSIVE TESTIMONY FROM THE TIME STAFF
MEMBER WHO HAD WRITTEN THE ARTICLE AND FROM THE "RESEARCHER" WHO HAD
BEEN RESPONSIBLE FOR CHECKING ITS FACTUAL ACCURACY.  THE AUTHOR
TESTIFIED THAT HE HAD WRITTEN THE ARTICLE ON THE BASIS OF THE JUSTICE
REPORT ITSELF, A COMMISSION PRESS RELEASE ACCOMPANYING THE REPORT, AND
A NEW YORK TIMES NEWS STORY DESCRIBING JUSTICE.  HE CONCEDED THAT HE
KNEW THE MEANINGS OF THE WORDS "ALLEGED" AND "COMPLAINT," BUT DENIED
THAT THE TIME ARTICLE WAS FALSE, GIVEN THE FULL CONTEXT OF THE JUSTICE
REPORT.  THE RESEARCHER TESTIFIED THAT SHE HAD CONSULTED SEVERAL
NEWSPAPER ARTICLES DESCRIBING MONROE'S CLAIMS ABOUT THE RAID, AND
SEVERAL ARTICLES DESCRIBING PAPE'S PREVIOUS CAREER.  SHE SAID THAT SHE
HAD ALSO READ TWO DISPATCHES FROM TIME'S CHICAGO CORRESPONDENT, ONE OF
THEM DESCRIBING MONROE'S CHARGES WITHOUT COMMENT AS TO THEIR TRUTH AND
THE OTHER ASSERTING AS FACT THAT THE EVENTS HAD ACTUALLY OCCURRED.  SHE
CONCEDED THAT SHE WAS AWARE OF THE OMISSION OF THE WORD "ALLEGED" IN
THE TIME ARTICLE, BUT SAID THAT SHE BELIEVED THE ARTICLE TO HAVE BEEN
TRUE AS WRITTEN. 

AT THE CLOSE OF THE EVIDENCE, THE DISTRICT COURT GRANTED TIME'S
MOTION FOR A DIRECTED VERDICT, 294 F.SUPP.  1087, AND PAPE APPEALED FOR
A THIRD TIME.  THE COURT OF APPEALS AGAIN REVERSED THE DISTRICT COURT,
HOLDING THAT IT WAS FOR THE JURY TO DETERMINE WHETHER TIME'S OMISSION
OF THE WORD "ALLEGED" SHOWED "ACTUAL MALICE."  419 F.2D 980.  WE
GRANTED CERTIORARI IN ORDER TO DECIDE THE CONSTITUTIONAL ISSUE
PRESENTED UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  397 U.S. 1062. 

THE DISTRICT COURT AND THE COURT OF APPEALS WERE IN AGREEMENT THAT
THE PLAINTIFF PAPE WAS A "PUBLIC OFFICIAL" BY VIRTUE OF HIS POSITION AS
DEPUTY CHIEF OF DETECTIVES OF THE CHICAGO POLICE DEPARTMENT, AND THAT
THE CHARGES CONTAINED IN THE MONROE COMPLAINT, THE JUSTICE REPORT, AND
THE TIME STORY CONCERNED HIS "OFFICIAL CONDUCT."  THE TWO COURTS
DIFFERED ONLY IN THEIR APPLICATION OF THE RULE OF NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254, WHICH "PROHIBITS A PUBLIC OFFICIAL FROM
RECOVERING DAMAGES FOR A DEFAMATORY FALSEHOOD RELATING TO HIS OFFICIAL
CONDUCT UNLESS HE PROVES THAT THE STATEMENT WAS MADE WITH 'ACTUAL
MALICE'-- THAT IS, WITH KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS
DISREGARD OF WHETHER IT WAS FALSE OR NOT."  ID., AT 279-280. 

THE ONLY QUESTION BEFORE US, THEREFORE, IS WHETHER THE COURT OF
APPEALS CORRECTLY APPLIED THIS CONSTITUTIONAL RULE TO THE FACTS OF THIS
CASE IN REVERSING THE DIRECTED VERDICT FOR THE DEFENDANT.  INQUIRIES OF
THIS KIND ARE FAMILIAR UNDER THE SETTLED PRINCIPLE THAT "(IN CASES IN
WHICH THERE IS A CLAIM OF DENIAL OF RIGHTS UNDER THE FEDERAL
CONSTITUTION, THIS COURT IS NOT BOUND BY THE CONCLUSIONS OF LOWER
COURTS, BUT WILL RE-EXAMINE THE EVIDENTIARY BASIS ON WHICH THOSE
CONCLUSIONS ARE FOUNDED."  NIEMOTKO V. MARYLAND, 340 U.S. 268, 271. 
CF. NAPUE V. ILLINOIS, 360 U.S. 264, 271-272.  AND IN CASES INVOLVING
THE AREA OF TENSION BETWEEN THE FIRST AND FOURTEENTH AMENDMENTS ON THE
ONE HAND AND STATE DEFAMATION LAWS ON THE OTHER, WE HAVE FREQUENTLY HAD
OCCASION TO REVIEW "THE EVIDENCE IN THE . . . RECORD TO DETERMINE
WHETHER IT COULD CONSTITUTIONALLY SUPPORT A JUDGMENT" FOR THE
PLAINTIFF.  NEW YORK TIMES, SUPRA, AT 284-285; BECKLEY NEWSPAPERS V.
HANKS, 389 U.S. 81, 83; ST. AMANT V. THOMPSON, 390 U.S. 727; GREENBELT
COOPERATIVE PUBLISHING ASSN. V. BRESLER, 398 U.S. 6, 11. 

THE TIME NEWS ARTICLE REPORTED AS A CHARGE BY THE COMMISION WHAT
WAS, IN ITS LITERAL TERMS, A DESCRIPTION BY THE COMMISSION OF THE
ALLEGATIONS IN A COMPLAINT FILED BY A PLAINTIFF IN A CIVIL RIGHTS
ACTION.  THIS SITUATION DIFFERS IN A NUMBER OF RESPECTS FROM THE
CONVENTIONAL LIBEL CASE.  FIRST, THE PUBLICATION SUED ON WAS NOT TIME'S
INDEPENDENT REPORT OF THE MONROE EPISODE, BUT ITS REPORT OF WHAT THE
CIVIL RIGHTS COMMISSION HAD SAID ABOUT THAT EPISODE.  SECOND, THE
ALLEGED DAMAGE TO REPUTATION WAS NOT THAT ARISING FROM MERE
PUBLICATION, BUT RATHER THAT RESULTING FROM ATTRIBUTION OF THE MONROE
ACCUSATIONS TO AN AUTHORITATIVE OFFICIAL SOURCE.  FINALLY, TIME MADE NO
CLAIM OF GOOD-FAITH ERROR OR MERE NEGLIGENCE.  BOTH THE AUTHOR OF THE
ARTICLE AND THE RESEARCHER ADMITTED AN AWARENESS AT THE TIME OF
PUBLICATION THAT THE WORDING OF THE COMMISSION REPORT HAD BEEN
SIGNIFICANTLY ALTERED, BUT INSISTED THAT ITS REAL MEANING HAD NOT BEEN
CHANGED. 

THE COURT OF APPEALS CONCLUDED THAT IT WAS OBVIOUS THAT THE OMISSION
OF THE WORD "ALLEGATION" OR SOME EQUIVALENT WAS A "FALSIFICATION" OF
THE REPORT.  SINCE THE OMISSION WAS ADMITTEDLY CONSCIOUS AND
DELIBERATE, THE ONLY REMAINING QUESTION IN THE COURT'S VIEW WAS WHETHER
THERE HAD BEEN "MALICE" IN THE SENSE OF AN "INTENT TO INFLICT HARM
THROUGH FALSEHOOD."  SUCH AN INTENT, THE COURT THOUGHT, MIGHT
REASONABLY BE INFERRED FROM THE VERY ACT OF DELIBERATE OMISSION, AND
THE ISSUE OF MALICE WAS CONSEQUENTLY ONE FOR THE JURY. 

ANALYSIS OF THIS KIND MAY BE ADEQUATE WHEN THE ALLEGED LIBEL
PURPORTS TO BE AN EYEWITNESS OR OTHER DIRECT ACCOUNT OF EVENTS THAT
SPEAK FOR THEMSELVES.  FOR EXAMPLE, IN ST. AMANT, SUPRA, IT MADE GOOD
SENSE TO SEPARATE THE QUESTION OF THE TRUTH OF ST. AMANT'S CHARGES OF
CORRUPTION AND OFFICIAL MISBEHAVIOR FROM THE QUESTION OF WEHTHER HE HAD
AN ADEQUATE BASIS TO BELIEVE THEM TRUE.  BUT A VAST AMOUNT OF WHAT IS
PUBLISHED IN THE DAILY AND PERIODICAL PRESS PURPORTS TO BE DESCRIPTIVE
OF WHAT SOMEBODY SAID RATHER THAN OF WHAT ANYBODY DID.  INDEED, PERHAPS
THE LARGEST SHARE OF NEWS CONCERNING THE DOINGS OF GOVERNMENT APPEARS
IN THE FORM OF ACCOUNTS OF REPORTS, SPEECHES, PRESS CONFERENCES, AND
THE LIKE.  THE QUESTION OF THE "TRUTH OF SUCH AN INDIRECT NEWSPAPER
REPORT PRESENTS RATHER COMPLICATED PROBLEMS. 

A PRESS REPORT OF WHAT SOMEONE HAS SAID ABOUT AN UNDERLYING EVENT OF
NEWS VALUE CAN CONTAIN AN ALMOST INFINITE VARIETY OF SHADINGS.  WHERE
THE SOURCE OF THE NEWS MAKES BALD ASSERTIONS OF FACT-- SUCH AS THAT A
POLICEMAN HAS ARRESTED A CERTAIN MAN ON A CRIMINAL CHARGE-- THERE MAY
BE NO DIFFICULTY.  BUT WHERE THE SOURCE ITSELF HAS ENGAGED IN
QUALIFYING THE INFORMATION RELEASED, COMPLEXITIES RAMIFY.  ANY
DEPARTURE FROM FULL DIRECT QUOTATION OF THE WORDS OF THE SOURCE, WITH
ALL ITS QUALIFYING LANGUAGE, INEVITABLY CONFRONTS THE PUBLISHER WITH A
SET OF CHOICES. 

THE CIVIL RIGHTS COMMISSION'S JUSTICE REPORT IS A TYPICAL EXAMPLE OF
THESE PROBLEMS.  THE UNDERLYING STORY THAT GAVE THE REPORT
NEWSWORTHINESS WAS THE PICTURE OF POLICE VIOLENCE AGAINST CITIZENS. 
MANY OF THE INCIDENTS INCLUDED WERE QUITE CLEARLY DESIGNED TO SHOCK,
ANGER, AND ALARM THE READER, INDEED TO MOVE HIM INTO A POSITION OF
SUPPORT FOR SPECIFIC LEGISLATIVE RECOMMENDATIONS OF THE COMMISSION. 
YET THE ATTITUDE OF THE COMMISSION TOWARD THE FACTUAL VERITY OF THE
EPISODES RECOUNTED WAS ANYTHING BUT STRAIGHTFORWARD. 

FIRST, THE EPISODES WERE PRESENTED IN THE CONTEXT OF A REPORT WHICH
FROM THE FIRST PAGE PURPORTED TO BE DEALING WITH A PROBLEM OF
UNQUESTIONABLE REALITY AND SERIOUSNESS: 

     "IN 1931 PRESIDENT HOOVER'S WICKERSHAM COMMITTEE FOUND

  EXTENSIVE EVIDENCE OF POLICE LAWLESSNESS, INCLUDING UNJUSTIFIED

  VIOLENCE.  SIXTEEN YEARS LATER ANOTHER PRESIDENTIAL COMMITTEE,

THIS ONE APPOINTED BY PRESIDENT TRUMAN, CONCLUDED THAT POLICE

  BRUTALITY, ESPECIALLY AGAINST THE UNPOPULAR, THE WEAK, AND THE

  DEFENSELESS, WAS A DISTRESSING PROBLEM.  AND NOW IN 1961 THIS

  COMMISSION MUST REPORT THAT POLICE BRUTALITY IS STILL A SERIOUS

  PROBLEM THROUGHOUT THE UNITED STATES."  JUSTICE 1. 

TWO PAGES LATER, THE REPORT SAID THAT 

   "THE COMMISSION IS PARTICULARLY IMPRESSED BY THE FACT THAT MOST

  POLICE OFFICERS NEVER RESORT TO BRUTAL PRACTICES.  BECAUSE OF

  THIS FACT, INSTANCES OF BRUTALITY OR DISCRIMINATION IN LAW

  ENFORCEMENT STAND OUT IN BOLD RELIEF.  IT IS HOPED THAT BY

  FOCUSING THE ATTENTION OF THE PRESIDENT, THE CONGRESS, AND THE

  PUBLIC ON THESE REMAINING INCONGRUITIES, THIS REPORT MAY

  CONTRIBUTE TO THEIR CORRECTION." 

THIS PROCESS OF FOCUSING ATTENTION BEGAN ON THE NEXT PAGE WITH THE
CHAPTER HEADING, IN LARGE TYPE:  "UNLAWFUL POLICE VIOLENCE."  THERE
FOLLOWED THE CRUCIAL DESCRIPTION OF THE FOUNDATIONS ON WHICH THE
ENSUING REPORTS WERE BASED: 

     "IN THE TEXT OF THIS CHAPTER THE COMMISSION BRIEFLY DESCRIBES

THE ALLEGED FACTS IN 11 TYPICAL CASES OF POLICE BRUTALITY.  THEY

  ARE PRESENTED IN THE BELIEF THAT THEY CONTRIBUTE TO AN

  UNDERSTANDING OF THE PROBLEM.  THE ALLEGATIONS OF MISCONDUCT ARE

  SUPPORTED IN SEVERAL CASES BY CRIMINAL CONVICTIONS OR FINDINGS BY

  IMPARTIAL AGENCIES; IN OTHERS, BY SWORN TESTIMONY, AFFIDAVITS

  FROM EYE WITNESSES, OR BY STAFF FIELD INVESTIGATIONS.  IN NO CASE

  HAS THE COMMISSION DETERMINED CONCLUSIVELY WHETHER THE

  COMPLAINANTS OR THE OFFICERS WERE CORRECT IN THEIR STATEMENTS. 

  THIS IS THE FUNCTION OF A COURT.  THE COMMISSION IS OF THE

  OPINION, HOWEVER, THAT THE ALLEGATIONS APPEARED SUBSTANTIAL

  ENOUGH TO JUSTIFY DISCUSSION IN THIS STUDY." 

THIS STATEMENT MAY FAIRLY BE CHARACTERIZED AS EXTRAVAGANTLY
AMBIGUOUS.  ON THE ONE HAND, WHAT WAS TO FOLLOW WAS "11 TYPICAL CASES
OF POLICE BRUTALITY," EACH OF WHICH "CONTRIBUTES) TO AN UNDERSTANDING
OF THE PROBLEM," AND WAS "SUBSTANTIAL ENOUGH TO JUSTIFY DISCUSSION" IN
THE STUDY.  A RANGE OF SOURCES WAS DESCRIBED, EACH OF A NATURE TO
INSPIRE CONFIDENCE IN THE READER.  BUT, THE READER WAS NONETHELESS TOLD
THAT THESE WERE "ALLEGED FACTS," "ALLEGATIONS OF MISCONDUCT," WHICH HAD
NOT BEEN "DETERMINED CONCLUSIVELY" TO BE "CORRECT."  THE SUGGESTION
THAT SUCH A CONCLUSIVE DETERMINATION COULD BE MADE ONLY BY A COURT
CAPPED THE CONFUSION:  IN CONTEXT IT WAS IMPOSSIBLE TO KNOW WHETHER THE
COMMISSION WAS SEEKING TO ENCOURAGE BELIEF OR SKEPTICISM REGARDING THE
INCIDENTS ABOUT TO BE DESCRIBED.     TURNING THE PAGE, THE READER WAS
CONFRONTED WITH ANOTHER HEADING IN CAPITALS, "PATTERNS OF POLICE
BRUTALITY," AND THEN THE DESCRIPTIONS OF THE VARIOUS INCIDENTS BEGAN. 
EACH HAD AN ITALICIZED HEADING (E.G., "THE KILLING OF A NEGRO IN
GEORGIA:  1943") FOLLOWED BY AN ACCOUNT GIVING BOTH SIDES OF THE STORY
AND CAREFULLY DESCRIBING ALL FACTS AS "ALLEGED" OR USING DIRECT
QUOTATIONS.  THE TONE OF TOTAL NEUTRALITY AS TO THE TRUTH OR FALSITY OF
THE CLAIMS OF BRUTALITY WAS FREQUENTLY MARRED, HOWEVER, BY REMARKS THAT
APPEARED TO INDICATE THE COMMISSION'S UNEXPRESSED VIEWS.  AT THE END OF
A DESCRIPTION ENTITLED "THE KILLING OF A NEGRO IN GEORGIA:  1958," FOR
EXAMPLE, THE REPORT SAID, "(N)O LOCAL DISCIPLINARY OR CRIMINAL ACTION
WAS TAKEN AGAINST ANY OF THE OFFICERS INVOLVED.  THE ATTITUDE OF LOCAL
AUTHORITIES TOWARD POLICE WAS PROTECTIVE IN THIS AND SEVERAL OTHER
CASES OF ALLEGED BRUTALITY THAT OCCURRED WITHIN A BRIEF PERIOD . . .
."  ID., AT 11. 

THE DESCRIPTION OF THE MONROE INCIDENT BORE THE ITALICIZED TITLE:
"SEARCH, SEIZURE, AND VIOLENCE:  CHICAGO, 1958."  UNLIKE THE REPORTS OF
THE OTHER INCIDENTS, HOWEVER, THIS REPORT LIMITED ITSELF TO THE SUMMARY
OF A PLAINTIFF'S COMPLAINT IN A LAWSUIT, AS INDICATED AT THE OUTSET OF
THIS OPINION.  NO ATTEMPT WAS MADE TO GIVE ANY OTHER VERSION OF THE
STORY, AND THE NEXT REPORT ("THE KILLING OF A NEGRO IN CLEVELAD:
1959") FOLLOWED IMMEDIATELY AFTER THE END OF THE QUOTATION. 

IN A CHAPTER ENTITLED "CONCLUSIONS," THE COMMISSION SET FORTH ITS
FINDINGS AND RECOMMENDATIONS.  THESE INCLUDED A FINDING THAT "POLICE
BRUTALITY BY SOME STATE AND LOCAL OFFICERS PRESENTS A SERIOUS AND
CONTINUING PROBLEM IN MANY PARTS OF THE UNITED STATES.  BOTH WHITES AND
NEGROES ARE THE VICTIMS, BUT NEGROES ARE THE VICTIMS OF SUCH BRUTALITY
FAR MORE, PROPORTIONATELY, THAN ANY OTHER GROUP IN AMERICAN SOCIETY." 
THE RECOMMENDATIONS INCLUDED PROPOSALS FOR A GRANT-IN-AID PROGRAM TO
IMPROVE THE QUALITY OF STATE AND LOCAL POLICE FORCES AND FOR PASSAGE OF
A FEDERAL STATUTE OUTLAWING ILLEGAL POLICE VIOLENCE.  ID., AT 109-112. 
SINCE THE SERIES OF INCIDENTS DESCRIBED EARLIER IN THE REPORT WAS THE
ONLY EVIDENCE THE COMMISSION PRESENTED IN SUPPORT OF ITS FINDINGS AND
RECOMMENDATIONS, THERE WAS A LOGICALLY INEVITABLE IMPLICATION THAT THE
COMMISSION MUST HAVE BELIEVED THAT THE INCIDENTS DESCRIBED HAD IN TRUTH
OCCURRED. 

IN LIGHT OF THE TOTALITY OF WHAT WAS SAID IN JUSTICE, WE CANNOT
AGREE THAT, WHEN TIME FAILED TO STATE THAT THE COMMISSION IN REPORTING
THE MONROE INCIDENT HAD TECHNICALLY CONFINED ITSELF TO THE ALLEGATIONS
OF A COMPLAINT, TIME ENGAGED IN A "FALSIFICATION" SUFFICIENT IN ITSELF
TO SUSTAIN A JURY FINDING OF "ACTUAL MALICE."  THE AUTHOR OF THE TIME
ARTICLE TESTIFIED, IN SUBSTANCE, THAT THE CONTEXT OF THE REPORT OF THE
MONROE INCIDENT INDICATED TO HIM THAT THE COMMISSION BELIEVED THAT THE
INCIDENT HAD OCCURRED AS DESCRIBED.  HE THEREFORE DENIED THAT HE HAD
FALSIFIED THE REPORT WHEN HE OMITTED THE WORD "ALLEGED."  THE TIME
RESEARCHER, WHO HAD READ NEWSPAPER STORIES ABOUT THE INCIDENT AND TWO
REPORTS FROM A TIME REPORTER IN CHICAGO, AS WELL AS THE ACCOUNTS OF
PAPE'S EARLIER CAREER, HAD EVEN MORE REASON TO SUPPOSE THAT THE
COMMISSION TOOK THE CHARGES TO BE TRUE. 

TIME'S OMISSION OF THE WORD "ALLEGED" AMOUNTED TO THE ADOPTION OF
ONE OF A NUMBER OF POSSIBLE RATIONAL INTERPRETATIONS OF A DOCUMENT THAT
BRISTLED WITH AMBIGUITIES.  THE DELIBERATE CHOICE OF SUCH AN
INTERPRETATION, THOUGH ARGUABLY REFLECTING A MISCONCEPTION, WAS NOT
ENOUGH TO CREATE A JURY ISSUE OF "MALICE" UNDER NEW YORK TIMES.  TO
PERMIT THE MALICE ISSUE TO GO TO THE JURY BECAUSE OF THE OMISSION OF A
WORD LIKE "ALLEGED," DESPITE THE CONTEXT OF THAT WORD IN THE COMMISSION
REPORT AND THE EXTERNAL EVIDENCE OF THE REPORT'S OVERALL MEANING, WOULD
BE TO IMPOSE A MUCH STRICTER STANDARD OF LIABILITY ON ERRORS OF
INTERPRETATION OR JUDGMENT THAN ON ERRORS OF HISTORIC FACT. 

NEW YORK TIMES WAS PREMISED ON A RECOGNITION THAT, AS MADISON PUT
IT, "SOME DEGREE OF ABUSE IS INSEPARABLE FROM THE PROPER USE OF EVERY
THING; AND IN NO INSTANCE IS THIS MORE TRUE THAN IN THAT OF THE
PRESS."  4 J. ELLIOT'S DEBATES ON THE FEDERAL CONSTITUTION 571 (1876). 
WITH RESPECT TO ERRORS OF FACT IN REPORTING EVENTS, WE SAID IN NEW YORK
TIMES: 

     "A RULE COMPELLING THE CRITIC OF OFFICIAL CONDUCT TO GUARANTEE

THE TRUTH OF ALL HIS FACTUAL ASSERTIONS-- AND TO DO SO ON PAIN OF

  LIBEL JUDGMENTS VIRTUALLY UNLIMITED IN AMOUNT-- LEADS TO . . .

  'SELF-CENSORSHIP.'  ALLOWANCE OF THE DEFENSE OF TRUTH, WITH THE

  BURDEN OF PROVING IT ON THE DEFENDANT, DOES NOT MEAN THAT ONLY

  FALSE SPEECH WILL BE DETERRED.  EVEN COURTS ACCEPTING THIS

  DEFENSE AS AN ADEQUATE SAFEGUARD HAVE RECOGNIZED THE DIFFICULTIES

  OF ADDUCING LEGAL PROOFS THAT THE ALLEGED LIBEL WAS TRUE IN ALL

  ITS FACTUAL PARTICULARS . . . . UNDER SUCH A RULE, WOULD-BE

  CRITICS OF OFFICIAL CONDUCT MAY BE DETERRED FROM VOICING THEIR

CRITICISM, EVEN THOUGH IT IS BELIEVED TO BE TRUE AND EVEN THOUGH

  IT IS IN FACT TRUE, BECAUSE OF DOUBT WHETHER IT CAN BE PROVED IN

  COURT OR FEAR OF THE EXPENSE OF HAVING TO DO SO."  376 U.S.,AT

  279. 

THESE CONSIDERATIONS APPLY WITH EVEN GREATER FORCE TO THE SITUATION
WHERE THE ALLEGED LIBEL CONSISTS IN THE CLAIMED MISINTERPRETATION OF
THE GIST OF A LENGTHY GOVERNMENT DOCUMENT.  WHERE THE DOCUMENT REPORTED
ON IS SO AMBIGUOUS AS THIS ONE WAS, IT IS HARD TO IMAGINE A TEST OF
"TRUTH" THAT WOULD NOT PUT THE PUBLISHER VIRTUALLY AT THE MERCY OF THE
UNGUIDED DISCRETION OF A JURY. 

IN CERTAIN AREAS OF THE LAW OF DEFAMATION, NEW YORK TIMES ADDED TO
THE TORT LAW OF THE INDIVIDUAL STATES A CONSTITUTIONAL ZONE OF
PROTECTION FOR ERRORS OF FACT CAUSED BY NEGLIGENCE.  THE PUBLISHER WHO
MAINTAINS A STANDARD OF CARE SUCH AS TO AVOID KNOWING FALSEHOOD OR
RECKLESS DISREGARD OF THE TRUTH IS THEREBY GIVEN ASSURANCE THAT THOSE
ERRORS THAT NONTHELESS OCCUR WILL NOT LAY HIM OPEN TO AN INDETERMINABLE
FINANCIAL LIABILITY.  THIS PROTECTION WOULD NOT EXIST FOR ERRORS OF
INTERPRETATION WERE THE ANALYSIS OF THE COURT OF APPEALS TO BE ADOPTED,
FOR ONCE A JURY WAS SATISFIED THAT THE INTERPRETATION WAS "WRONG," THE
ERROR ITSELF WOULD BE SUFFICIENT TO JUSTIFY A VERDICT FOR THE
PLAINTIFF. 

IN ST. AMANT V. THOMPSON, SUPRA, AT 731, WE SAID: 

     "OUR CASES . . . HAVE FURNISHED MEANINGFUL GUIDANCE FOR THE

  FURTHER DEFINITION OF A RECKLESS PUBLICATION.  IN NEW YORK TIMES,

  SUPRA, THE PLAINTIFF DID NOT SATISFY HIS BURDEN BECAUSE THE

  RECORD FAILED TO SHOW THAT THE PUBLISHER WAS AWARE OF THE

LIKELIHOOD THAT HE WAS CIRCULATING FALSE INFORMATION.  IN

GARRISON V. LOUISIANA, 379 U.S. 64 (1964) . . . THE OPINION

  EMPHASIZED THE NECESSITY FOR A SHOWING THAT A FALSE PUBLICATION

  WAS MADE WITH A 'HIGH DEGREE OF AWARENESS OF . . . PROBABLE

  FALSITY.'  379 U.S.,AT 74 . . . . THESE CASES ARE CLEAR THAT

  RECKLESS CONDUCT IS NOT MEASURED BY WHETHER A REASONABLY PRUDENT

  MAN WOULD HAVE PUBLISHED, OR WOULD HAVE INVESTIGATED BEFORE

  PUBLISHING.  THERE MUST BE SUFFICIENT EVIDENCE TO PERMIT THE

  CONCLUSION THAT THE DEFENDANT IN FACT ENTERTAINED SERIOUS DOUBTS

  AS TO THE TRUTH OF HIS PUBLICATION.  PUBLISHING WITH SUCH DOUBTS

  SHOWS RECKLESS DISREGARD FOR TRUTH OR FALSITY AND DEMONSTRATES

ACTUAL MALICE." 

APPLYING THIS STANDARD TO TIME'S INTERPRETATION OF THE COMMISSION
REPORT, IT CAN HARDLY BE SAID THAT TIME ACTED IN RECKLESS DISREGARD OF
THE TRUTH.  GIVEN THE AMBIGUITIES OF THE COMMISSION REPORT AS A WHOLE,
AND THE TESTIMONY OF THE TIME AUTHOR AND RESEARCHER, TIME'S CONDUCT
REFLECTED AT MOST AN ERROR OF JUDGMENT.  WE HAVE HELD THAT IF "THE
FREEDOMS OF EXPRESSION ARE TO HAVE THE 'BREATHING SPACE' THAT THEY
'NEED . . . TO SURVIVE,'" MISSTATEMENTS OF THIS KIND MUST HAVE THE
PROTECTION OF THE FIRST AND FOURTEENTH AMENDMENTS.  NEW YORK TIMES,
SUPRA, AT 271-272. 

WE WOULD ADD, HOWEVER, A FINAL CAUTIONARY NOTE.  NOTHING IN THIS
OPINION IS TO BE UNDERSTOOD AS MAKING THE WORD "ALLEGED" A SUPERFLUITY
IN PUBLISHED REPORTS OF INFORMATION DAMAGING TO REPUTATION.  OUR
DECISION TODAY IS BASED ON THE SPECIFIC FACTS OF THIS -ASE, INVOLVING
AS THEY DO A NEWS REPORT OF A PARTICULAR GOVERNMENT PUBLICATION THAT
PURPORTED TO DESCRIBE THE SPECIFIC GROUNDS FOR PERCEIVING IN 1961 "A
SERIOUS PROBLEM THROUGHOUT THE UNITED STATES."  "NEITHER LIES NOR FALSE
COMMUNICATIONS SERVE THE ENDS OF THE FIRST AMENDMENT, AND NO ONE
SUGGESTS THEIR DESIRABILITY OR FURTHER PROLIFERATION.  BUT TO INSURE
THE ASCERTAINMENT AND PUBLICATION OF THE TRUTH ABOUT PUBLIC AFFAIRS, IT
IS ESSENTIAL THAT THE FIRST AMENDMENT PROTECT SOME ERRONEOUS
PUBLICATIONS AS WELL AS TRUE ONES."  ST. AMANT V. THOMPSON, SUPRA, AT
732. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  ON JANUARY 24, 1963, AFTER A JURY FINDING OF LIABILITY,
JUDGMENT WAS ENTERED AGAINST PAPE IN THE CIVIL RIGHTS SUIT BROUGHT
AGAINST HIM BY MONROE.  THE JURY AWARDED MONROE DAMAGES OF $8,000. 
PAPE DID NOT APPEAL, AND THE JUDGMENT WAS SATISFIED. 

(FOR SEPARATE OPINION OF MR. JUSTICE BLACK, SEE ANTE, P. 277.) 

MR. JUSTICE HARLAN, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS, ESSENTIALLY FOR
THE REASONS STATED IN JUDGE DUFFY'S OPINION FOR THAT COURT.  THE
TREATMENT OF THIS CASE BY OUR COURT, HOWEVER, PROMPTS ME TO VENTURE
THESE ADDITIONAL COMMENTS. 

I FULLY AGREE WITH THE RULE FIRST ENUNCIATED IN NEW YORK TIMES CO.
V. SULLIVAN, 376 U.S. 254 (1964), THAT RESTRICTS THE LIABILITY OF THOSE
WHO UTTER DEFAMATORY FALSEHOODS REGARDING PUBLIC OFFICIALS.  WE THERE
RECOGNIZED THAT BECAUSE ,ERRONEOUS STATEMENT IS INEVITABLE IN FREE
CONTENT SUFFICES TO REMOVE THE CONSTITUTIONAL SHIELD FROM CRITICISM OF
OFFICIAL CONDUCT."  ID., AT 273.  BUT THESE CONSIDERATIONS DID NOT
PERSUADE US TO RULE THAT THE CONSTITUTION GRANTS ABSOLUTE IMMUNITY TO
EVERYONE, BE IT THE NEWS MEDIA OR ANYONE ELSE, WHO LIBELS A PUBLIC
OFFICIAL, OR TO CONCLUDE THAT THE USUAL PROCESSES OF LAW ARE INADEQUATE
FOR DEALING WITH THIS KIND OF LITIGATION.  RATHER, WE DECIDED THAT THE
SUBSTANTIAL FIRST AMENDMENT INTERESTS IMPLICATED IN ANY LIBEL SUIT OF
THIS SORT WOULD BE ADEQUATELY SERVED BY A CONSTITUTIONAL RULE THAT
SUBJECTS SUCH A STATEMENT TO THE SANCTIONS OF THE COMMON LAW OF LIBEL
ONLY WHERE IT WAS UTTERED "WITH 'ACTUAL MALICE'-- THAT IS, WITH
KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT
WAS FALSE OR NOT."  ID., AT 280. 

THE STEP TAKEN TODAY, WHEREBY THIS COURT UNDERTAKES TO JUDGE, "ON
THE SPECIFIC FACTS OF THIS CASE," ANTE, AT 292, WHETHER A JURY COULD
REASONABLY FIND THAT TIME MAGAZINE'S CHARACTERIZATION OF THE
COMMISSION'S REPORT WAS SUFFICIENTLY INACCURATE TO PERMIT THE
CONCOMITANT FINDING THAT IT WAS PUBLISHED WITH "MALICE," IS, IN MY
JUDGMENT, NOT WARRANTED. 

I CAN PERCEIVE NO RATIONAL BASIS FOR DISTINGUISHING THIS CASE FROM
ONE IN WHICH A NEWSPAPER OR AN INDIVIDUAL SEEKS TO HAVE THIS COURT
REVIEW THE RECORD UPON WHICH A PROPERLY INSTRUCTED JURY FOUND
LIABILITY, WHERE EVIDENCE SUFFICIENT TO SUPPORT ITS VERDICT EXISTS, AND
WHERE THESE MATTERS HAVE BEEN REVIEWED BY A COURT OF APPEALS APPLYING
CORRECT LEGAL STANDARDS.  AS I SEE THINGS, THE COURT IDENTIFIES NO SUCH
DISTINGUISHING FEATURE ABOUT THIS CASE. 

WHILE IT IS TRUE, OF COURSE, THAT THIS COURT IS FREE TO RE-EXAMINE
FOR ITSELF THE EVIDENTIARY BASES UPON WHICH REST DECISIONS THAT
ALLEGEDLY IMPAIR OR PUNISH THE EXERCISE OF FOURTEENTH AMENDMENT
FREEDOMS, THIS DOES NOT MEAN THAT WE ARE OF NECESSITY ALWAYS, OR EVEN
USUALLY, COMPELLED TO DO SO.  INDEED, IT IS ALMOST IMPOSSIBLE TO
CONCEIVE HOW THIS COURT MIGHT CONTINUE TO FUNCTION EFFECTIVELY WERE WE
TO RESOLVE AFRESH THE UNDERLYING FACTUAL DISPUTES IN ALL CASES
CONTAINING CONSTITUTIONAL ISSUES.  NOR CAN I DISCERN IN THOSE FIRST
AMENDMENT CONSIDERATIONS THAT LED US TO RESTRICT THE STATES' POWERS TO
REGULATE DEFAMATION OF PUBLIC OFFICIALS ANY ADDITIONAL INTEREST THAT IS
NOT SERVED BY THE ACTUAL-MALICE RULE OF NEW YORK TIMES, SUPRA, BUT IS
SUBSTANTIALLY PROMOTED BY UTILIZING THIS COURT AS THE ULTIMATE ARBITER
OF FACTUAL DISPUTES IN THOSE LIBEL CASES WHERE NO UNUSUAL FACTORS, SUCH
AS ALLEGATIONS OF HARASSMENT OR THE EXISTENCE OF A JURY VERDICT RESTING
ON ERRONEOUS INSTRUCTIONS, CF. NEW YORK TIMES, SUPRA, ARE PRESENT. 
WHILE I AM CONFIDENT THAT THE COURT DOES NOT INTEND ITS DECISION TO
HAVE ANY SUCH BROAD REACH, I FEAR THAT WHAT IS DONE TODAY MAY OPEN A
DOOR THAT WILL PROVE DIFFICULT TO CLOSE. 

HAVING DETERMINED THAT THE COURT BELOW PROPERLY DEFINED THE QUALITY
OF PROOF REQUIRED OF PAPE BY NEW YORK TIMES AND THAT IT APPLIED THE
CORRECT STANDARD OF REVIEW IN PASSING UPON THE TRIAL JUDGE'S DECISION
TO GRANT A DIRECTED VERDICT-- DETERMINATIONS THAT I DO NOT THINK MY
BRETHREN DISPUTE-- I WOULD STOP THE INQUIRY AT THIS POINT AND AFFIRM
THE JUDGMENT OF THE COURT OF APPEALS. 

DON H. REUBEN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE HAROLD R. MEDINA, JR., AND LAWRENCE GUNNELS. 

PATRICK W. DUNNE ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE ROBERT J. NOLAN AND EDWARD J. HLADIS. 
..END :



OCALA STAR-BANNER CO. V. DAMRON, 401 U.S. 295 


       OCALA STAR-BANNER CO. ET AL. V. DAMRON

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST

           DISTRICT

        NO. 118.  ARGUED DECEMBER 17, 1970-- DECIDED FEBRUARY 24,

           1971 


PETITIONER NEWSPAPER PUBLISHED A FALSE STORY THAT RESPONDENT, THEN A
MAYOR AND A CANDIDATE FOR COUNTY TAX ASSESSOR, HAD BEEN CHARGED WITH
PERJURY IN FEDERAL COURT, AND RESPONDENT SUED FOR LIBEL.  THE JUDGE
INSTRUCTED THE JURY THAT THE CHARGE WAS LIBELOUS PER SE AND THAT
RESPONDENT COULD RECOVER DAMAGES WITHOUT SHOWING MALICE.  THE JURY
AWARDED COMPENSATORY DAMAGES.  THE JUDGE DENIED THE NEWSPAPER'S MOTION
FOR A NEL TRIAL ON THE BASIS OF THE "ACTUAL MALICE" TEST OF NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254, ON THE GROUND THAT THE ARTICLE DID
NOT REFER TO RESPONDENT'S OFFICIAL CONDUCT.  THE FLORIDA DISTRICT COURT
OF APPEAL AFFIRMED, HOLDING THAT THE NEW YORK TIMES RULE DID NOT
APPLY.  HELD:  A CHARGE OF CRIMINAL CONDUCT AGAINST A PUBLIC OFFICIAL
OR A CANDIDATE FOR PUBLIC OFFICE, NO MATTER HOW REMOTE IN TIME OR
PLACE, IS ALWAYS "RELEVANT TO HIS FITNESS FOR OFFICE" FOR PURPOSES OF
APPLYING THE NEW YORK TIMES RULE OF KNOWING FALSEHOOD OR RECKLESS
DISREGARD OF THE TRUTH.  MONITOR PATRIOT CO. V. ROY, ANTE, P. 265.  PP.
299-301. 

221 SO.2D 459, REVERSED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND HARLAN, BREENAN, WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED. 
WHITE, J., FILED A CONCURRING OPINION, POST, P. 301.  BLACK, J., FILED
AN OPINION CONCURRING IN THE JUDGMENT AND DISSENTING IN PART, IN WHICH
DOUGLAS, J., JOINED, ANTE, P. 277. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE OCALA STAR-BANNER CO., A PETITIONER IN THIS CASE, PUBLISHES A
SMALL DAILY NEWSPAPER SERVING FOUR COUNTIES IN RURAL FLORIDA.  ON APRIL
18, 1966, THE STAR-BANNER PRINTED A STORY TO THE EFFECT THAT THE
RESPONDENT, LEONARD DAMRON, THEN THE MAYOR OF CRYSTAL RIVER IN CITRUS
COUNTY AND A CANDIDATE FOR THE OFFICE OF COUNTY TAX ASSESSOR, HAD BEEN
CHARGED IN A FEDERAL COURT WITH PERJURY, AND THAT HIS CASE HAD BEEN
HELD OVER UNTIL THE FOLLOWING TERM OF THAT COURT.  /1/  THIS STORY WAS
FALSE.  THE RESPONDENT HAD NOT BEEN CHARGED WITH ANY CRIME IN FEDERAL
COURT, NOR HAD ANY CASE INVOLVING HIM BEEN HELD OVER, BUT THE STORY WAS
SUBSTANTIALLY ACCURATE AS TO HIS BROTHER, JAMES DAMRON.  /2/  TWO WEEKS
LATER THE RESPONDENT WAS DEFEATED IN THE ELECTION FOR COUNTY TAX
ASSESSOR. 

HE FILED THE PRESENT SUIT AGAINST THE STAR-BANNER IN THE CIRCUIT
COURT OF MARION COUNTY, FLORIDA, ALLEGING THAT THE ARTICLE WAS
"LIBELOUS PER SE," AND THAT IT HAD CAUSED HIM "IRREPARABLE DAMAGES TO
HIS REPUTATION, AS AN INDIVIDUAL, PUBLIC OFFICER, CANDIDATE FOR PUBLIC
OFFICE AND AS A BUSINESSMAN."  HE ASKED $50,000 AS COMPENSATORY DAMAGES
AND $500,000 AS PUNITIVE DAMAGES.  AT THE TRIAL, THE NEWSPAPER DID NOT
DENY THAT THE STORY WAS WHOLLY FALSE AS TO THE RESPONDENT, AND
EXPLAINED THE ERROR AS THE RESULT OF A "MENTAL ABERRATION" BY ONE OF
THE PAPER'S AREA EDITORS.  THE AREA EDITOR HAD BEEN WORKING FOR THE
PAPER FOR A LITTLE MORE THAN A MONTH.  HE TESTIFIED THAT HE HAD RUN
SEVERAL STORIES ABOUT THE POLITICAL ACTIVITIES OF THE RESPONDENT, BUT
HAD NEVER HEARD OF HIS BROTHER JAMES.  WHEN A LOCAL REPORTER TELEPHONED
IN THE STORY, CORRECTLY IDENTIFYING THE PROTAGONIST AS JAMES DAMRON, HE
INADVERTENTLY CHANGED THE NAME.  THE RESPONDENT PRESENTED EVIDENCE
TENDING TO CAST DOUBT ON THIS EXPLANATION. 

AT THE CLOSE OF THE EVIDENCE, THE RESPONDENT MOVED FOR A DIRECTED
VERDICT ON THE ISSUE OF LIABILITY, AND THE TRIAL JUDGE GRANTED THE
MOTION.  THE CASE THEN WENT TO THE JURY ON THE ISSUE OF DAMAGES, WITH
INSTRUCTIONS WHICH INCLUDED THE FOLLOWING: 

     "THE COURT INSTRUCTS THE JURY THAT YOU NEED NOT CONSIDER

  WHETHER A LIBEL HAS BEEN COMMITTED AND INSTRUCTS YOU THAT THERE

  MUST BE A FINDING IN FAVOR OF THE PLAINTIFF IN ACCORDANCE WITH

  THE OTHER INSTRUCTIONS GIVEN YOU BY THE COURT . . . . YOU ARE

  INSTRUCTED THAT IN THIS CASE THE CHARGE MADE AGAINST THE

  PLAINTIFF WAS LIBELOUS, PER SE, AND THAT IT CREATED A PRESUMPTION

  OF DAMAGE TO THE PLAINTIFF BUT THAT IF THIS PRESUMPTION OF DAMAGE

  IS OVERCOME BY EVIDENCE OFFERED BY THE PARTIES AND THERE IS NO

  PROOF OF GENERAL DAMAGE TO THE PLAINTIFF BY A PREPONDERANCE OF

  THE EVIDENCE, THEN YOU CANNOT AWARD ANYTHING MORE THAN NOMINAL

  DAMAGES TO THE PLAINTIFF.  THE COURT INSTRUCTS THE JURY THAT IF

  YOU BELIEVE FROM THE EVIDENCE AND BY THE INSTRUCTIONS OF THE

  COURT THAT THE PLAINTIFF IS ENTITLED TO RECOVER FROM THE

  DEFENDANTS, THEN IN ADDITION TO ANY COMPENSATORY DAMAGES, IF ANY,

  THAT HE MAY HAVE-- MAY RECOVER, YOU MAY, AS HEREINAFTER STATED,

  AWARD THE PLAINTIFF PUNITIVE DAMAGES WHEN MALICE IS SHOWN OR

IMPLIED . . . . THE COURT INSTRUCTS THE JURY THAT MALICE MAY BE

  IMPLIED OR INFERRED WHERE THE CHARGE OF A FELONY IS IMPUTED TO

  THE PLAINTIFF.  IN OTHER WORDS, IF YOU ARE REASONABLY SATISFIED

  FROM THE EVIDENCE THAT THE DEFENDANTS IMPUTED THE CHARGE OF

  PERJURY TO THE PLAINTIFF, OF WHICH HE WAS NOT GUILTY, THEN YOU

  MAY INFER THAT IT WAS MALICIOUSLY MADE AND IT IS NOT NECESSARY TO

  PROVE ANY EXPRESS MALICE OR ILL-WILL IN ORDER TO WARRANT A

  VERDICT FOR PUNITIVE DAMAGES IN FAVOR OF THE PLAINTIFF." 

THE JURY AWARDED DAMRON COMPENSATORY DAMAGES OF $22,000 BUT FAILED TO
AWARD ANY PUNITIVE DAMAGES. 

THE STAR-BANNER MOVED FOR A NEW TRIAL, ARGUING THAT THE CASE SHOULD
HAVE BEEN SENT TO THE JURY UNDER THE "ACTUAL MALICE" TEST LAID DOWN BY
THIS COURT IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254.  THE TRIAL
JUDGE DENIED THE MOTION ON THE GROUND THAT NEW YORK TIMES AND LATER
CASES "RELATING TO PUBLIC OFFICIALS OR PUBLIC FIGURES IN THE OFFICIAL
CONDUCT OF THEIR OFFICE OR POSITION ARE NOT APPLICABLE TO THIS CAUSE OF
ACTION WHICH WAS FOUNDED UPON A NEWSPAPER PUBLICATION OF THE DEFENDANTS
WHICH WAS LIBELOUS PER SE AND MADE NO REFERENCE TO THE PUBLIC OFFICES
HELD OR SOUGHT BY THE PLAINTIFF."  THE FLORIDA DISTRICT COURT OF APPEAL
AFFIRMED THE JUDGMENT, HOLDING THAT: 

     "AN EXAMINATION OF THE DEFAMATORY PUBLICATION WHICH GAVE RISE

  TO THIS CASE REVEALS THAT THE PLAINTIFF'S OFFICIAL CONDUCT OR THE

  MANNER IN WHICH HE PERFORMED HIS DUTIES WERE NOT THE BASIS FOR

  THE INACCURACY HERE INVOLVED; AND, HENCE, IT DOES NOT COME WITHIN

  THE PROTECTION AFFORDED BY THE RULE ANNOUNCED IN THE NEW YORK

  TIMES CASE.  IT FOLLOWS THEREFORE THAT THE TRIAL JUDGE CORRECTLY

  HELD THAT IT WAS UNNECESSARY FOR THE PLAINTIFF TO SHOW MALICE." 

  221 SO.2D 459, 461. 

THE SUPREME COURT OF FLORIDA REFUSED TO REVIEW THE JUDGMENT, 231 SO.2D
822, AND WE GRANTED CERTIORARI TO CONSIDER THE FEDERAL CONSTITUTIONAL
ISSUES PRESENTED.  /3/  397 U.S. 1073. 

AS THE MAYOR OF CRYSTAL RIVER, THE RESPONDENT LEONARD DAMRON WAS
WITHOUT QUESTION A "PUBLIC OFFICIAL" WITHIN THE MEANING GIVEN THE TERM
IN NEW YORK TIMES CO. V. SULLIVAN, SUPRA.  AS SUCH, HE CLEARLY FELL
WITHIN THE RULE THAT "PROHIBITS A PUBLIC OFFICIAL FROM RECOVERING
DAMAGES FOR A DEFAMATORY FALSEHOOD RELATING TO HIS OFFICIAL CONDUCT
UNLESS HE PROVES THAT THE STATEMENT WAS MADE WITH 'ACTUAL MALICE'--
THAT IS, WITH KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS DISREGARD OF
WHETHER IT WAS FALSE OR NOT."  ID., AT 279-280.  IN HIS STATUS AS A
CANDIDATE FOR THE OFFICE OF COUNTY TAX ASSESSOR, HE FELL WITHIN THE
SAME RULE.  MONITOR PATRIOT CO. V. ROY, ANTE, P. 265. 

YET IT IS CLEAR THAT THE NEW YORK TIMES TEST WAS NOT APPLIED IN THE
TRIAL OF THIS CASE.  THE TRIAL JUDGE HIMSELF RESOLVED THE ISSUES OF
PUBLICATION AND FALSEHOOD AGAINST THE NEWSPAPER.  HE THEN INSTRUCTED
THE JURY THAT SINCE THE ARTICLE WAS "LIBELOUS, PER SE," ITS ONLY TASK
WAS TO DETERMINE DAMAGES.  SINCE THE RESPONDENT WAS PERMITTED TO
RECOVER WITHOUT A FINDING THAT THE NEWSPAPER EITHER KNEW THE ARTICLE
WAS FALSE OR PUBLISHED IT IN RECKLESS DISREGARD OF ITS TRUTH OR
FALSITY, THE JUDGMENT MUST BE REVERSED UNLESS THERE IS SOME BASIS FOR
SAYING THAT THE RULE OF NEW YORK TIMES DOES NOT APPLY TO THE PARTICULAR
LIBEL IN QUESTION.  HENRY V. COLLINS, 380 U.S. 356; CURTIS PUBLISHING
CO. V. BUTTS, 388 U.S. 130, 142-143, 158 (OPINION OF HARLAN, J.);
GREENBELT COOPERATIVE PUBLISHING ASSN. V. BRESLER; 398 U.S. 6. 

THE RESPONDENT URGES UPON US THAT A BASIS FOR DISTINGUISHING NEW
YORK TIMES DOES EXIST, BECAUSE THE RULE OF THAT CASE APPLIES ONLY TO
"OFFICIAL CONDUCT,"  /4/  AND A CHARGE OF INDICTMENT FOR PERJURY
COMMITTED DURING TESTIMONY IN A FEDERAL CIVIL RIGHTS SUIT IS A PURELY
"PRIVATE" LIBEL.  THIS CONTENTION IS DISPOSED OF BY OUR DECISION TODAY
IN MONITOR PATRIOT CO. V. ROY, SUPRA.  IN THAT CASE WE HELD THAT A
CHARGE OF CRIMINAL CONDUCT AGAINST AN OFFICIAL OR A CANDIDATE, NO
MATTER HOW REMOTE IN TIME PURPOSES OF APPLYING THE NEW YORK TIMES RULE
OF KNOWING FALSEHOOD OR RECKLESS DISREGARD OF THE TRUTH.  PUBLIC
DISCUSSION ABOUT THE QUALIFICATIONS OF A CANDIDATE FOR ELECTIVE OFFICE
PRESENTS WHAT IS PROBABLY THE STRONGEST POSSIBLE CASE FOR APPLICATION
OF THE NEW YORK TIMES RULE.  AND UNDER ANY TEST WE CAN CONCEIVE, THE
CHARGE THAT A LOCAL MAYOR AND CANDIDATE FOR A COUNTY ELECTIVE POST HAS
BEEN INDICTED FOR PERJURY IN A CIVIL RIGHTS SUIT IS RELEVANT TO HIS
FITNESS FOR OFFICE.  CF. GARRISON V. LOUISIANA, 379 U.S. 64, 77. 

THE FIRST AND FOURTEENTH AMENDMENTS REQUIRE REVERSAL OF THE
JUDGMENT.  THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

     IT IS SO ORDERED. 

/1/  THE STORY APPEARED UNDER A THREE-COLUMN HEAD ("DAMRON CASE
PASSED OVER TO NEXT U.S. COURT TERM") AND WAS AS FOLLOWS: 

"INGLIS-- A CASE CHARGING LOCAL GARAGE OWNER LEONARD DAMRON WITH
PERJURY WAS PASSED OVER FOR THE PRESENT TERM OF FEDERAL COURT AFTER
DAMRON ENTERED A NOT GUILTY PLEA BEFORE FEDERAL JUDGE HARROLD CARSWELL
IN GAINESVILLE. 

"DAMRON WAS INDICTED BY A FEDERAL GRAND JURY IN TALLAHASSEE LAST
JANUARY AND CHARGED WITH PERJURY IN A 1964 CIVIL CASE WHICH RESULTED IN
DAMAGES OF $65,000 BEING AWARDED TO A YANKEETOWN COUPLE. 

"MRS. GAIL FINLEY ALLEGED THAT LEVY COUNTY DEPUTY SAMMY CASON
SLAMMED ON BRAKES CAUSING HER TO INJURE HER NECK IN OCTOBER OF 1962. 

"CASON AND DEPUTY WALTER BECKHAM WENT TO YANKEETOWN WITH A WARRANT
FOR THE ARREST OF MRS. JEAN RICH SILL, WHO WAS ALLEGEDLY IN THE IZAAC
WALTON LODGE. 

"ACCORDING TO OFFICIALS, THE FINLEYS INTERFERED WITH THE OFFICERS,
WERE ARRESTED AND CHARGED WITH INTERFERING WITH ARREST. 

A CONVICTION OBTAINED IN COUNTY COURT HAS BEEN UPHELD THROUGH
APPEALS BY THE FLORIDA STATE SUPREME COURT. 

"THE CIVIL SUIT WHICH FOLLOWED WAS FILED UNDER AN OLD, LITTLE-USED
FEDERAL STATUTE IN WHICH THE FINLEYS CHARGED FORMER SHERIFF J. W.
TURNER AND CASON WITH A VIOLATION OF THEIR CIVIL RIGHTS. 

"DAMRON TESTIFIED THAT HE HAD SEEN MRS. FINLEY IN A NECK BRACE IN
LATE 1957 OR EARLY 1958 SEVERAL YEARS PRIOR TO THE INCIDENT, BUT
NUMEROUS OTHER WITNESSES, SUMMONED BY THE PLAINTIFF, GAVE TESTIMONY,
SAYING THAT MRS. FINLEY HAD NOT PREVIOUSLY WORN A BRACE. 

"DAMRON WAS RELEASED ON $2,000 BOND, FOLLOWING HIS ARREST BY FEDERAL
MARSHALS JAN. 27." 

/2/  THE STAR-BANNER PRINTED TWO RETRACTIONS BEFORE THE ELECTION. 

/3/  THE RESPONDENT'S ARGUMENT THAT THE NEWSPAPER "ADMITTED
LIABILITY" AT TRIAL, AND THAT THE CONSTITUTIONAL ISSUE OF THE
APPLICABILITY OF NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, IS
THEREFORE NOT PROPERLY BEFORE US, MUST BE REJECTED SINCE BOTH THE TRIAL
COURT ON MOTION FOR NEW TRIAL AND THE STATE APPELLATE COURT CONSIDERED
AND PASSED UPON THE CONSTITUTIONAL QUESTION AS THOUGH PROPERLY RAISED. 
WHYY V. GLASSBORO, 393 U.S. 117, 119; RALEY V. OHIO, 360 U.S. 423, 436;
MANHATTAN LIFE INS. CO. V. COHEN, 234 U.S. 123, 134. 

/4/  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 283 N. 23. 

BOTH THE TRIAL JUDGE ON MOTION FOR NEW TRIAL AND THE DISTRICT COURT
OF APPEAL RESTED THEIR CONCLUSION THAT NEW YORK TIMES DID NOT APPLY
PARTLY ON THE GROUND THAT THE DEFAMATORY ARTICLE NOWHERE MENTIONED THE
RESPONDENT'S STATUS AS MAYOR OF CRYSTAL RIVER OR AS A CANDIDATE FOR
COUNTY TAX ASSESSOR.  THE RESPONDENT HAS NOT PURSUED THAT THEORY HERE. 

(FOR SEPARATE OPINION OF MR. JUSTICE BLACK, SEE ANTE, P. 277.) 

MR. JUSTICE WHITE, CONCURRING.  /1/ 

INEVITABLY, NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964), BY
IMPOSING ON LIBEL AND SLANDER PLAINTIFFS THE BURDEN OF SHOWING KNOWING
OR RECKLESS FALSEHOOD IN SPECIFIED SITUATIONS WILL RESULT IN EXTENDING
CONSTITUTIONAL PROTECTION TO LIES AND FALSEHOODS WHICH, THOUGH NEITHER
KNOWING NOR RECKLESS, DO SEVERE DAMAGE TO PERSONAL REPUTATION.  THE
FIRST AMENDMENT IS NOT SO CONSTRUED, HOWEVER, TO AWARD MERIT BADGES FOR
INTREPID BUT MISTAKEN OR CARELESS REPORTING.  MISINFORMATION HAS NO
MERIT IN ITSELF; STANDING ALONE IT IS AS ANTITHETICAL TO THE PURPOSES
OF THE FIRST AMENDMENT AS THE CALCULATED LIE.  GARRISON V. LOUISIANA,
379 U.S. 64, 75 (1964).  ITS SUBSTANCE CONTRIBUTES NOTHING TO
INTELLIGENT DECISIONMAKING BY CITIZENS OR OFFICIALS; IT ACHIEVES
NOTHING BUT GRATUITOUS INJURY.  THE SOLE BASIS FOR PROTECTING
PUBLISHERS WHO SPREAD FALSE INFORMATION IS THAT OTHERWISE THE TRUTH
WOULD TOO OFTEN BE SUPPRESSED.  THAT INNOCENT FALSEHOODS ARE SOMETIMES
PROTECTED ONLY TO ENSURE ACCESS TO THE TRUTH HAS BEEN NOTED BEFORE, ST.
AMANT V. THOMPSON, 390 U.S. 727, 732 (1968), AND IT IS WELL THAT THE
THOUGHT IS REPEATED TODAY IN TIME, INC. V. PAPE, ANTE, P. 279, AT 292. 

/1/  THIS OPINION APPLIES ALSO TO NO. 62, MONITOR PATRIOT CO. V.
ROY, ANTE, P. 265. 

HAROLD B. WAHL ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

WALLACE DUNN ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :








RAMSEY V. MINE WORKERS, 401 U.S. 302 


       RAMSEY ET AL., DBA LEON NUNLEY COAL CO., ET AL. V. UNITED

           MINE WORKERS OF AMERICA

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

    SIXTH CIRCUIT

        NO. 88.  ARGUED DECEMBER 7, 1970-- DECIDED FEBRUARY 24,

           1971. 


PETITIONER COAL MINE OPERATORS BROUGHT THIS SHERMAN ACT CONSPIRACY
ACTION AGAINST RESPONDENT UNION ALLEGING THAT RESPONDENT HAD EXPRESSLY
OR IMPLIEDLY AGREED WITH THE MAJOR PRODUCERS TO IMPOSE THE PROVISIONS
OF THE 1950 NATIONAL BITUMINOUS COAL WAGE AGREEMENT (NBCWA) ON ALL COAL
MINE OPERATORS, KNOWING THAT THE SMALLER ONES WOULD BE UNABLE TO MEET
THE NBCWA TERMS AND WOULD BE DRIVEN OUT OF BUSINESS.  PETITIONERS BASED
THEIR EXPRESS-AGREEMENT CLAIM ON A LATER AMENDMENT, THE PROTECTIVE WAGE
CLAUSE (PWC), WHEREBY RESPONDENT UNDERTOOK NOT TO ENTER INTO ANY
AGREEMENT WITH OTHER OPERATORS ON A BASIS OTHER THAN THE NBCWA, AND
THEIR IMPLIED-AGREEMENT CLAIM ON THE PWC AND SUBSEQUENT ACTIVITIES OF
RESPONDENT AND THE MAJOR OPERATORS.  FOLLOWING A TRIAL, THE TRIAL JUDGE
DISMISSED THE CASE FOR FAILURE OF PROOF, FINDING THAT THE PWC DID NOT
CONSTITUTE AN EXPRESS COMMITMENT BY RESPONDENT NOT TO BARGAIN WITH
OTHER OPERATORS EXCEPT ON NBCWA TERMS BUT THAT, ALL EVIDENCE
CONSIDERED, AN IMPLIED COMMITMENT TO DO SO WOULD BE INFERRED IF THE
APPLICABLE STANDARD OF PROOF WERE THE PREPONDERANCE-OF-THE-EVIDENCE
STANDARD ORDINARILY APPLIED IN CIVIL CASES.  HE CONCLUDED, HOWEVER,
THAT WHERE A LABOR UNION IS INVOLVED, SEC. 6 OF THE NORRIS-LAGUARDIA
ACT REQUIRES A STANDARD OF "CLEAR PROOF," BOTH WITH RESPECT TO THE
AUTHORITY OF INDIVIDUALS ALLEGED TO HAVE PERFORMED ILLEGAL ACTS ON
BEHALF OF UNIONS AND WITH RESPECT TO WHETHER THE ACTS THEMSELVES
OCCURRED, AMOUNTED TO A CONSPIRACY, AND HAD INJURED THE PLAINTIFF'S
BUSINESS.  SECTION 6 PROVIDES THAT NO ORGANIZATION PARTICIPATING IN A
LABOR DISPUTE SHALL BE LIABLE FOR THE UNLAWFUL ACTS OF INDIVIDUAL
OFFICERS OR MEMBERS EXCEPT UPON "CLEAR PROOF" OF ACTUAL PARTICIPATION
IN OR AUTHORIZATION OF SUCH ACTS.  THE DISTRICT COURT'S JUDGMENT WAS
AFFIRMED BY AN EQUALLY DIVIDED COURT OF APPEALS.  PETITIONERS
ADDITIONALLY URGE A CONSTRUCTION OF THE PWC WHICH WOULD MAKE IT AN
ILLEGAL AGREEMENT FOR WHICH RESPONDENT IS NOT EXEMPT UNDER THE
ANTITRUST LAWS, AND THEY ASK FOR RECONSIDERATION OF THE HOLDING IN MINE
WORKERS V. PENNINGTON, 381 U.S. 657, THAT A UNION IS NOT LIABLE UNDER
THE ANTI-TRUST LAWS WHEN IT CONCLUDES "A WAGE AGREEMENT WITH A MULTI
EMPLOYER BARGAINING UNIT . . . AND AS A MATTER OF ITS OWN POLICY, AND
NOT BY AGREEMENT WITH ALL OR PART OF THE EMPLOYERS OF THAT UNIT, SEEKS)
THE SAME WAGES FROM OTHER EMPLOYERS."  HELD: 

1.  THE ORDINARY PREPONDERANCE-OF-THE-EVIDENCE STANDARD IS
APPLICABLE IN CIVIL ANTITRUST ACTIONS AGAINST LABOR UNIONS EXCEPT WITH
RESPECT TO PROVING THE AUTHORITY OF INDIVIDUAL MEMBERS, OFFICERS, OR
AGENTS OF A UNION TO PERFORM ON BEHALF OF THE UNION THE ACTS COMPLAINED
OF, WHERE THE "CLEAR PROOF" STANDARD APPLIES.  PP. 307-311. 

2.  THIS COURT CANNOT PROPERLY CONSIDER IN THE FIRST INSTANCE
PETITIONERS' ADDITIONAL ARGUMENT ABOUT THE CONSTRUCTION OF THE PWC
SINCE IT IS NOT CLEAR IF THE CONTENTION WAS MADE BELOW AND WHETHER, IN
ANY EVENT, THE RECORD SUPPORTS IT.  PP. 311-312. 

3.  THE COURT'S DECISION IN PENNINGTON IS REAFFIRMED BOTH WITH
RESPECT TO THE HOLDING (1) THAT A UNION MAY MAKE WAGE AGREEMENTS WITH A
MULTI-EMPLOYER BARGAINING UNIT AND IN PURSUIT OF ITS OWN SELF-INTERESTS
SEEK TO SECURE THE SAME TERMS FROM OTHER UNION AGREES WITH AN EMPLOYER
GROUP TO IMPOSE A CERTAIN WAGE SCALE ON OTHER BARGAINING UNITS, THUS
JOINING A CONSPIRACY TO LIMIT COMPETITION.  PP. 312-314. 

416 F.2D 655, REVERSED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BRENNAN, STEWART, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION, IN WHICH BLACK, HARLAN, AND MARSHALL, JJ.,
JOINED, POST, P. 314. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, COAL MINE OPERATORS IN SOUTHEASTERN TENNESSEE, WERE
PLAINTIFFS IN THE TRAIL COURT, WHERE THEIR COMPLAINT ACCUSED RESPONDENT
UNITED MINE WORKERS OF AMERICA OF VIOLATING THE SHERMAN ACT BY
CONSPIRING WITH VARIOUS COAL PRODUCERS TO DRIVE PETITIONERS OUT OF
BUSINESS.  THE MAJOR THRUST OF THE CLAIM WAS THAT THE UNION HAD
EXPRSESLY OR IMPLIEDLY AGREED WITH THE MAJOR PRODUCERS TO IMPOSE THE
PROVISIONS OF THE NATIONAL BITUMINOUS COAL WAGE AGREEMENT (NBCWA),
FIRST EXECUTED BY THE UNION AND CERTAIN COMPANIES IN 1950, ON ALL COAL
MINE OPERATORS, KNOWING THAT SMALL AND NONMECHANIZED OPERATORS WOULD BE
UNABLE TO MEET THE CONTRACT'S TERMS.  THE PURPOSE OF THIS ALLEGED
CONSPIRACY WAS TO ELIMINATE THE MARGINAL OPERATORS, CONTROL PRODUCTION,
AND RESERVE THE MARKET FOR LARGER CONCERNS.  THE CLAIM OF EXPRESS
AGREEMENT RESTED ON THE SO-CALLED PROTECTIVE WAGE CLAUSE (PWC) ADDED TO
THE NBCWA BY AMENDMENT IN 1958.  THE PWC, AFTER RECITING THAT THE
PARTIES AGREED THAT COAL MINES "SHALL BE SO OPERATED AS NOT TO DEBASE
OR LOWER THE STANDARDS OF WAGES, HOURS, SAFETY REQUIREMENTS AND OTHER
CONDITIONS OF WORK, ESTABLISHED BY THIS CONTRACT," PROVIDED AS
FOLLOWS: 

     "DURING THE PERIOD OF THIS CONTRACT, THE UNITED MINE WORKERS
OF

  AMERICA WILL NOT ENTER INTO, BE A PARTY TO, NOR WILL IT PERMIT

  ANY AGREEMENT OR UNDERSTANDING COVERING ANY WAGES, HOURS OR OTHER

CONDITIONS OF WORK APPLICABLE TO EMPLOYEES COVERED BY THIS

  CONTRACT ON ANY BASIS OTHER THAN THOSE SPECIFIED IN THIS CONTRACT

  OR ANY APPLICABLE DISTRICT CONTRACT.  THE UNITED MINE WORKERS OF

  AMERICA WILL DILIGENTLY PERFORM AND ENFORCE WITHOUT

  DISCRIMINATION OR FAVOR THE CONDITIONS OF THIS PARAGRAPH AND ALL

  OTHER TERMS AND CONDITIONS OF THE CONTRACT AND WILL USE AND

  EXERCISE ITS CONTINUING BEST EFFORTS TO OBTAIN FULL COMPLIANCE

  THEREWITH BY EACH AND ALL THE PARTIES SIGNATORY THERETO."  /1/ 

PETITIONERS IN ANY EVENT CLAIMED THAT A CONSPIRATORIAL ARRANGEMENT
BETWEEN THE UNION AND THE MAJOR OPERATORS COULD BE IMPLIED FROM THE
PWC, THE COURSE OF NEGOTIATIONS BETWEEN THE UNION AND THOSE OPERATORS
FROM 1950 FORWARD, /2/  AND THE ENSUING AGREEMENT TO AND COMPLIANCE
WITH THE NATIONAL AGREEMENT AS AMENDED FROM TIME TO TIME, AS WELL AS
FROM THE UNION'S PURCHASE OF A CONTROLLING INTEREST IN WEST KENTUCKY
COAL CO. AND THE LATTER'S ALLEGEDLY PREDATORY PRICING IN THE TVA COAL
MARKET. 

FOLLOWING A TRIAL TO THE COURT ON A VOLUMINOUS RECORD, THE TRIAL
JUDGE WROTE AN EXTENSIVE OPINION CONTAINING HIS FINDINGS AND
CONCLUSIONS LEADING TO A DISMISSAL OF THE CASE FOR FAILURE OF PROOF. 
RAMSEY V. UMW, 265 F.SUPP.  388 (ED TENN. 1967).  HE INTERPRETED THE
PWC AS FORBIDDING DEPARTURE FROM THE CONTRACT TERMS BY THE UNION ONLY
WHERE SIGNATORIES WERE CONCERNED; THE COURT FOUND NOTHING IN THE
CONTRACT OBLIGATING THE UNION TO INSIST ON COMPARABLE TERMS WHEN
DEALING WITH EMPLOYERS OUTSIDE THE BARGAINING UNIT.  AS FOR AN IMPLIED
CONSPIRACY TO STANDARDIZE EMPLOYMENT TERMS THROUGHOUT THE INDUSTRY
AIMED AT DESTROYING MARGINAL PRODUCERS, THE TRAIL COURT SAID THAT
"(WERE THIS CASE BEING TRIED UPON THE USUAL PREPONDERANCE OF THE
EVIDENCE RULE APPLICABLE TO CIVIL CASES, THE COURT WOULD CONCLUDE THAT
THE U.M.W. DID SO IMPLIEDLY AGREE,; BUT THAT ,THE STANDARD OF PROOF
WHERE A LABOR UNION IS INVOLVED IS 'CLEAR PROOF,' AS REQUIRED BY
ORDINARY CIVIL BURDEN OF PERSUASION."  /3/  265 F.SUPP.,AT 412.  JUDGED
BY THIS STRICTER STANDARD, PROOF OF CONSPIRACY WAS FOUND WANTING AND
THE CASE AGAINST THE UNION FAILED. 

A PANEL OF THE COURT OF APPEALS RULED THE TRIAL COURT HAD ERRED IN
APPLYING THE CLEAR-EVIDENCE STANDARD BUT REHEARING EN BANC WAS
GRANTED.  THE COURT OF APPEALS THEN AGREED WITH THE DISTRICT COURT'S
CONSTRUCTION OF THE PWC BUT WITH RESPECT TO THE CLEAR-EVIDENCE
STANDARD, FOUR JUDGES AGREED WITH THE TRIAL JUDGE AND FOUR DISAGREED. 
THE LATTER INSISTED THAT THE ORDINARY PREPONDERANCE-OF-EVIDENCE
STANDARD WAS APPLICABLE IN CIVIL ANTITRUST ACTIONS AGAINST LABOR UNIONS
EXCEPT WITH RESPECT TO PROVING THE AUTHORITY OF INDIVIDUAL MEMBERS,
OFFICERS, AND AGENTS OF THE UNION TO PERFORM THE ACTS COMPLAINED OF ON
BEHALF OF THE UNION.  THE DISTRICT COURT'S JUDGMENT WAS THEREFORE
AFFIRMED BY AN EQUALLY DIVIDED COURT.  RAMSEY V. UMW, 416 F.2D 655 (CA6
1969).  WE GRANTED CERTIORARI.  397 U.S. 1006 (1970). 

        I 

IN A SECTION OF HIS OPINION ENTITLED "LEGAL GUIDELINES," THE
DISTRICT JUDGE INQUIRED AS TO "THE STANDARD OF PROOF THAT MUST GOVERN A
PROCEEDING INVOLVING A SHERMAN ACT CHARGE AGAINST A LABOR UNION."  HIS
ANSWER WAS:  "THE BURDEN OF PROOF BORNE BY THE PLAINTIFF IS NOT THE
USUAL PREPONDERANCE OF THE EVIDENCE RULE APPLICABLE IN CIVIL CASES
GENERALLY.  THE REQUIREMENT IMPOSED BY SECTION 6 OF THE NORRIS
LAGUARDIA ACT IS THAT OF 'CLEAR PROOF' WHERE A LABOR ORGANIZATION IS A
PARTY TO AN ACTION SUCH AS THIS . . . . THAT THE 'CLEAR PROOF' STANDARD
APPLIES TO AN ACTION WHEREIN A LABOR ORGANIZATION IS SOUGHT TO BE
CHARGED WITH A SHERMAN ACT VIOLATION APPEARS SETTLED."  265 F.SUPP.,AT
400.  IN THIS AND OTHER PASSAGES IN THE TRIAL JUDGE'S OPINION, /4/  HE
APPARENTLY DEMANDED CLEAR PROOF RATHER THAN A PREPONDERANCE OF THE
EVIDENCE NOT ONLY WITH RESPECT TO THE AUTHORITY OF THE INDIVIDUALS WHO
WERE ALLEGED TO HAVE PERFORMED CERTAIN ILLEGAL ACTS ON BEHALF OF
UNIONS, BUT ALSO AS TO WHETHER THE ACTS THEMSELVES OCCURRED, WHETHER
THE ACTS PROVED AMOUNTED TO A CONSPIRACY AND WHETHER PLAINTIFFS'
BUSINESSES HAD BEEN INJURED.  THE EIGHT JUDGES OF THE COURT OF APPEALS
ALSO SEEMED TO READ THE TRIAL COURT AS HAVING GIVEN UNLIMITED
APPLICATION TO THE CLEAR-PROOF STANDARD IN THIS ACTION.  APPARENTLY
THEY WERE ALSO CONVINCED THAT THE STANDARD APPLIED BY THE TRIAL COURT
HAD MADE A CRITICAL DIFFERENCE IN THE CASE, FOR THE ISSUE THAT EQUALLY
DIVIDED THEM WAS WHETHER THE CLEAR-PROOF STANDARD SHOULD BE APPLIED TO
ANY MATTERS OTHER THAN THE UNION'S AUTHORIZATION OF THE CONDUCT ALLEGED
AND PROVED.  /5/ 

THE REASONING OF THE LOWER COURTS IN DEPARTING FROM THE USUAL
PREPONDERANCE-OF-EVIDENCE RULE GENERALLY APPLICABLE TO CIVIL ACTIONS IN
FEDERAL COURTS /6/  WAS ROOTED IN SEC. 6 OF THE NORRIS-LAGUARDIA ACT,
47 STAT. 71, 29 U.S.C. 106.  BUT THE TRIAL JUDGE AND FOUR JUDGES OF THE
COURT OF APPEALS READ FAR TOO MUCH INTO SEC. 6, WHICH PROVIDES AS
FOLLOWS: 

     "NO OFFICER OR MEMBER OF ANY ASSOCIATION OR ORGANIZATION, AND

  NO ASSOCIATION OR ORGANIZATION PARTICIPATING OR INTERESTED IN A

  LABOR DISPUTE, SHALL BE HELD RESPONSIBLE OR LIABLE IN ANY COURT

  OF THE UNITED STATES FOR THE UNLAWFUL ACTS OF INDIVIDUAL

  OFFICERS, MEMBERS, OR AGENTS, EXCEPT UPON CLEAR PROOF OF ACTUAL

PARTICIPATION IN, OR ACTUAL AUTHORIZATION OF, SUCH ACTS, OR OF

  RATIFICATION OF SUCH ACTS AFTER ACTUAL KNOWLEDGE THEREOF." 

JUDGE O'SULLIVAN COGENTLY OBSERVED IN THE COURT OF APPEALS THAT:  "THIS
IS PLAIN LANGUAGE WHICH . . . CLEARLY EXPOSES THE SECTION'S
LIMITATION."  416 F.2D,AT 667.  ON ITS FACE SEC. 6 IS NOT ADDRESSED TO
THE QUANTUM OF EVIDENCE REQUIRED TO PROVE THE OCCURRENCE OF THE ALLEGED
"UNLAWFUL ACTS."  IT IS CONCERNED ONLY WITH REQUIRING "CLEAR PROOF"
THAT THE PERSON OR ORGANIZATION CHARGED ACTUALLY PARTICIPATED IN,
AUTHORIZED, OR RATIFIED "SUCH ACTS."  NOTHING IN THE WORDS OF THE
PRESCRIBED FOR ALL ISSUES IN ACTIONS AGAINST A UNION, ITS MEMBERS OR
ITS OFFICERS INVOLVED IN A LABOR DISPUTE.  THE SECTION NEITHER
EXPRESSLY NOR BY IMPLICATION REQUIRES SATISFACTION OF THE CLEAR-PROOF
STANDARD IN DECIDING FACTUAL ISSUES CONCERNING THE COMMISSION VEL NON
OF ACTS BY UNION OFFICERS OR BY MEMBERS ALLEGED TO CONSTITUTE A
CONSPIRACY, OR THE INFERENCES TO BE DRAWN FROM SUCH ACTS, OR CONCERNING
OVERT ACTS IN FURTHERANCE OF THE CONSPIRACY, THE IMPACT ON THE RELEVANT
MARKET OR THE INJURY TO PLAINTIFFS' BUSINESSES. 

THE LEGISLATIVE HISTORY OF SEC. 6 WAS REVIEWED AT LENGTH IN UNITED
BROTHERHOOD OF CARPENTERS V. UNITED STATES, 330 U.S. 395 (1947).  WE
HAVE REVIEWED IT AGAIN AND WE FIND NOTHING TO SUGGEST THAT THE SECTION
MEANS SOMETHING DIFFERENT FROM WHAT ITS LANGUAGE SEEMS TO SAY.  /7/
WITHOUT LABORING THE MATTER-- SINCE NOTHING TO THE CONTRARY IN THE
LEGISLATIVE HISTORY HAS BEEN PRESENTED TO US-- THE SIMPLE CONCERN OF
CONGRESS WAS THAT UNIONS HAD BEEN FOUND LIABLE FOR VIOLENCE AND OTHER
ILLEGAL ACTS OCCURRING IN LABOR DISPUTES WHICH THEY HAD NEVER
AUTHORIZED OR RATIFIED AND FOR WHICH THEY SHOULD NOT BE HELD
RESPONSIBLE.  CONGRESS DISCERNED A TENDENCY IN COURTS TO BLAME UNIONS
FOR EVERYTHING OCCURRING DURING A STRIKE.  NOR WAS THE PROBLEM
NECESSARILY LIMITED TO LABOR UNIONS.  /8/  THE STRAIGHTFORWARD ANSWER
WAS SEC. 6, WITH ITS REQUIREMENT THAT WHEN ILLEGAL ACTS OF ANY
INDIVIDUAL ARE CHARGED AGAINST ONE OF THE MAJOR ANTAGONISTS IN A LABOR
DISPUTE-- WHETHER EMPLOYER OR UNION-- THE EVIDENCE MUST CLEARLY PROVE
THAT THE INDIVIDUAL'S ACTS WERE AUTHORIZED OR RATIFIED.  SEE ID., AT
403.  WE FIND NO SUPPORT IN THE LEGISLATIVE MATERIAL FOR THE NOTION
THAT CONGRESS INTENDED BROADLY TO MODIFY THE STANDARD OF PROOF WHERE
UNION AND EMPLOYER ARE SUED SEPARATELY OR TOGETHER IN CIVIL ACTIONS FOR
DAMAGES INCURRED IN THE COURSE OF LABOR DISPUTES. 

PRIOR CASES IN THIS COURT RELIED ON BY THE COURTS BELOW ARE NOT TO
THE CONTRARY.  CARPENTERS' MAJOR CONCERN WAS SEC. 6.  THE COURT THERE
SAID THAT "(THE LIMITATIONS OF THAT SECTION ARE UPON ALL COURTS OF THE
UNITED STATE IN ALL MATTERS GROWING OUT OF LABOR DISPUTES, COVERED BY
THE ACT, WHICH MAY COME BEFORE THEM."  ID., AT 401.  THE STATEMENT IS
UNEXCEPTIONABLE-- THE FEDERAL COURTS, OF COURSE, MUST HEED SEC. 6 IN
ALL CASES ARISING OUT OF LABOR DISPUTES IN WHICH THE SECTION IS
APPLICABLE.  /9/  HOWEVER, THE LIMITATIONS THE SECTION IMPOSES ARE
THOSE THAT THE SECTION DESCRIBES.  IT IS CLEAR FROM THE REMAINDER OF
THE CARPENTERS OPINION THAT SEC. 6 DEALS ONLY WITH PROVING THE
AUTHORITY OF INDIVIDUALS OR ORGANIZATIONS WHO ACT FOR ANOTHER.  INDEED,
THE COURT THERE REVERSED A JUDGMENT AGAINST A UNION BECAUSE THE TRIAL
COURT HAD FAILED TO INSTRUCT THAT ILLEGAL ACTS COULD NOT BE PROVED
AGAINST THE UNION UNLESS THE EVIDENCE CLEARLY SHOWED THE UNION HAD
AUTHORIZED, PARTICIPATED IN, OR RATIFIED THE COMMISSION OF THOSE ACTS. 

UNITED MINE WORKERS V. GIBBS, 383 U.S. 715 (1966), INSOFAR AS IT
DEALT WITH SEC. 6, WAS CONCERNED ONLY WITH THE FAILURE OF THE EVIDENCE
CLEARLY TO SHOW UNION RESPONSIBILITY FOR ILLEGAL ACTS OF VIOLENCE. 
THERE WAS NO SUGGESTION IN THAT CASE THAT SEC. 6 HAD BROADER SCOPE. 
AND SEC. 6 WAS NOT EVEN INVOLVED IN UNITED MINE WORKERS V. PENNINGTON,
381 U.S. 657 (1965), AS IT CAME TO THIS COURT.  THE SECTION WAS NEITHER
CITED NOR DISCUSSED AND THERE WERE NO INDICATIONS THAT OUR PASSING
REFERENCE, 381 U.S.,AT 665, TO FORFEITURE OF UNION EXEMPTION FROM
ANTITRUST LIABILITY WHEN UNION CONNIVANCE WITH EMPLOYERS IS CLEARLY
SHOWN WAS INTENDED TO ESTABLISH A STRICTER STANDARD OF PROOF IN ACTIONS
CHARGING LABOR UNIONS WITH VIOLATIONS OF THE SHERMAN ACT. 

IN OUR VIEW, SEC. 6 REQUIRES CLEAR AND CONVINCING EVIDENCE ONLY AS
TO THE UNION'S AUTHORIZATION, PARTICIPATION IN, OR RATIFICATION OF THE
ACTS ALLEGEDLY PERFORMED ON ITS BEHALF.  NOR DO WE DISCERN ANY BASIS
FOR OUR FASHIONING A NEW STANDARD OF PROOF APPLICABLE IN ANTITRUST
ACTIONS AGAINST LABOR UNIONS.  ACCORDINGLY, THE DISTRICT COURT ERRED IN
REQUIRING PETITIONERS' COMPLIANCE WITH THE STANDARD OF SEC. 6 IN
PROVING OTHER ELEMENTS OF THEIR TREBLE-DAMAGE CASE AGAINST THE UNION. 

        II 

PETITIONERS ARGUE TWO OTHER MATTERS.  WE ARE URGED TO CONSTRUE THE
PWC AS ITSELF BEING AN ILLEGAL BARGAIN FOR WHICH THE UNION IS NOT
EXEMPT UNDER THE ANTITRUST LAWS.  THE THRUST OF THE ARGUMENT IN THIS
COURT IS THAT BY 1958, WHEN THE PWC WAS FIRST AGREED TO BY THE UNION
AND THE BCOA, THE UNION HAD EXECUTED THE NATIONAL CONTRACT WITH
HUNDREDS OF DIFFERENT BARGAINING UNITS IN ADDITION TO THOSE REPRESENTED
BY THE BCOA.  EVEN IF THE PWC BOUND THE UNION ONLY TO INSIST ON
IDENTICAL CONTRACT TERMS AS AGAINST "SIGNATORIES," THE EFFECT OF THE
CLAUSE, IT IS URGED, WAS TO BIND THE UNION TO THE SAME CONTRACT, AD
INFINITUM, WITH MANY AND DIFFERENT BARGAINING UNITS; THE UNION WAS NO
LONGER FREE TO AGREE TO DIFFERENT TERMS WITH ANY PREVIOUS SIGNATORY TO
THE NBCWA.  /10/  WE FIND NO REFERENCE TO THIS ASPECT OF THE CASE IN
THE OPINIONS IN THE DISTRICT COURT AND THE COURT OF APPEALS.  WE ARE
UNSURE WHETHER IT WAS PRESENTED BELOW AND WHETHER, IN ANY EVENT, THERE
IS RECORD SUPPORT FOR IT.  ACCORDINGLY, WE DEEM IT INAPPROPRIATE TO
CONSIDER IT IN THE FIRST INSTANCE. 

FINALLY, PETITIONERS IN EFFECT ASK US TO RECONSIDER OUR HOLDING IN
PENNINGTON AND OTHER CASES THAT UNDER THE CLAYTON AND NORRIS-LAGUARDIA
ACTS THE UNION INCURS NO LIABILITY UNDER THE ANTITRUST LAWS WHEN IT
CONCLUDES "A WAGE AGREEMENT WITH THE MULTI-EMPLOYER BARGAINING UNIT . .
. AND . . . AS A MATTER OF ITS OWN POLICY, AND NOT BY AGREEMENT WITH
ALL OR PART OF THE EMPLOYERS OF THAT UNIT, SEEKS) THE SAME WAGES FROM
OTHER EMPLOYERS."  381 U.S.,AT 664.  THIS WE DECLINE TO DO.  THE COURT
MADE IT UNMISTAKABLY CLEAR IN ALLEN BRADLEY CO. V. UNION, 325 U.S. 797,
811 (1945), THAT UNILATERAL CONDUCT BY A UNION OF THE TYPE PROTECTED BY
THE CLAYTON AND NORRIS-LAGUARDIA ACTS DOES NOT VIOLATE THE SHERMAN ACT
EVEN THOUGH IT MAY ALSO RESTRAIN TRADE.  "(THESE CONGRESSIONALLY
PERMITTED UNION ACTIVITIES MAY RESTRAIN TRADE IN AND OF THEMSELVES. 
THERE IS NO DENYING THE FACT THAT "THE DESIRABILITY OF SUCH AN
EXEMPTION OF LABOR UNIONS IS A QUESTION FOR THE DETERMINATION OF
CONGRESS."  325 U.S.,AT 810.  WE ADHERE TO THIS VIEW.  BUT NEITHER DO
WE RETREAT FROM THE "ONE LINE WHICH WE CAN DRAW WITH ASSURANCE THAT WE
FOLLOW THE CONGRESSIONAL PURPOSE.  WE KNOW THAT CONGRESS FEARED THE
CONCENTRATED POUER OF BUSINESS ORGANIZATIONS TO DOMINATE MARKETS AND
PRICES . . . . A BUSINESS MONOPOLY IS NO LESS SUCH BECAUSE A UNION
PARTICIPATES, AND SUCH PARTICIPATION IS A VIOLATION OF THE ACT."  ID.,
AT 811.  HENCE WE ALSO ADHERE TO THE DECISION IN PENNINGTON:  "(THE
RELEVANT LABOR AND ANTITRUST POLICIES COMPEL US TO CONCLUDE THAT THE
ALLEGED AGREEMENT BETWEEN UMW AND THE LARGE OPERATORS TO SECURE UNIFORM
LABOR STANDARDS THROUGHOUT THE INDUSTRY, IF PROVED, WAS NOT EXEMPT FROM
THE ANTITRUST LAWS."  381 U.S.,AT 669.  WHERE A UNION, BY AGREEMENT
WITH ONE SET OF EMPLOYERS, INSISTS ON MAINTAINING IN OTHER BARGAINING
UNITS SPECIFIED WAGE STANDARDS RUINOUS TO THE BUSINESS OF THOSE
EMPLOYERS, IT IS LIABLE UNDER THE ANTITRUST LAWS FOR THE DAMAGES CAUSED
BY ITS AGREED-UPON CONDUCT. 

WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              SO ORDERED. 

/1/  IN RETURN THE OPERATORS AGREED "THAT ALL BITUMINOUS COAL MINED,
PRODUCED, OR PREPARED BY THEM, OR ANY OF THEM OR PROCURED OR ACQUIRED
BY THEM OR ANY OF THEM UNDER A SUBCONTRACT ARRANGEMENT" SHOULD BE
PRODUCED UNDER TERMS AND CONDITIONS WHICH ARE AS FAVORABLE TO THE
EMPLOYEES AS THOSE PROVIDED FOR IN THIS CONTRACT. 

IN ANOTHER CASE, TENNESSEE CONSOLIDATED COAL CO. V. UMW, 416 F.2D
1192 (CA6 1969), THE COURT OF APPEALS STATED THAT THE PROTECTIVE WAGE
CLAUSE WAS A "QUID PRO QUO" FOR THE FOREGOING UNDERTAKING OF THE
OPERATORS WHICH WAS DESCRIBED BY THE COURT AS AN AGREEMENT "TO BOYCOTT
COAL NOT PRODUCED IN CONFORMITY WITH THE NATIONAL AGREEMENT."  416
F.2D,AT 1198. 

/2/  THE BITUMINOUS COAL OPERATORS ASSOCIATION (BCOA) WAS FORMED AS
A MULTI-EMPLOYER COLLECTIVE-BARGAINING UNIT IN 1950, JUST AFTER SIGNING
OF THE 1950 NBCWA.  MEMBER EMPLOYERS RANGED FROM THE SMALL TO THE
LARGE, THOUGH ITS MEMBERS MINED ABOUT 50% OF U.S. BITUMINOUS COAL.  IT
FORMED A "NEGOTIATING COMMITTEE" ANALOGOUS TO THE UMW'S "POLICY
COMMITTEE," TO REPRESENT MEMBER EMPLOYERS AT THE BARGAINING TABLE. 
RAMSEY V. UMW, 265 F.SUPP.  388, 407 (EDTENN.  1967).  RELATIONS
BETWEEN UNION AND MANAGEMENT IMPROVED GREATLY DURING THE 1950'S,
LEADING PETITIONERS TO SUGGEST THAT THE ABSENCE OF STRIFE INDICATED THE
RISE OF THE CONSPIRACY.  ID., AT 407-408. 

/3/  THE COURT LATER SAID, "DID NOT THE CLEAR EVIDENCE RULE APPLY,
THE COURT MIGHT HAVE REACHED A DIFFERENT CONCLUSION UPON CERTAIN
ISSUES."  265 F.SUPP.,AT 434. 

/4/ SEE N. 3, SUPRA, AND ACCOMPANYING TEXT. 

/5/  THE UNION URGES NOT ONLY THAT THE TRIAL COURT PROPERLY
UNDERSTOOD THE LIMITED SCOPE OF SEC. 6 BUT ALSO THAT ON MOST IF NOT ALL
SIGNIFICANT ISSUES THE PROOF FAILED EVEN UNDER THE PREPONDERANCE-OF
EVIDENCE RULE.  FOR THE FIRST PROPOSITION THE UNION RELIES ON THE TRIAL
JUDGE'S INSTRUCTIONS TO THE JURY IN A LATER CASE, WHICH ARE REPORTED IN
TENNESSEE CONSOLIDATED COAL CO. V. UMW, 416 F.2D,AT 1200-1203, AND
WHICH ARE SAID TO CONSTRUE SEC. 6 MORE NARROWLY.  BUT WE MUST DECIDE
THE CASE BEFORE US, NOT SOME OTHER ONE IN WHICH THE TRIAL COURT MAY
HAVE EVIDENCED DIFFERENT VIEWS.  HERE THE UNION'S CLAIM IS BELIED BY
THE LANGUAGE OF THE TRIAL COURT'S OPINION AND ITS INTERPRETATION BY THE
EIGHT JUDGES OF THE COURT OF APPEALS.  THE SECOND PROPOSITION-- THAT
THE TRIAL COURT'S CLEAR-EVIDENCE RULING WAS MERE DICTUM-- LEAVES
UNEXPLAINED THE COURT OF APPEALS' AFFIRMANCE BY AN EQUALLY DIVIDED
COURT AS WELL AS THE TRIAL JUDGE'S REMARKS THAT HE WOULD OR MIGHT HAVE
REACHED DIFFERENT RESULTS ON SOME ISSUES, APPARENTLY INCLUDING SOME
ASPECTS OF THE CONSPIRACY ISSUE, IF PREPONDERANCE OF THE EVIDENCE WAS
THE GOVERNING STANDARD.  TO WHAT EXTENT THE PROOF WOULD FAIL UNDER THE
STANDARD WE HERE HOLD APPLICABLE AND WHAT LEGAL DIFFERENCE IT MIGHT
MAKE ARE MATTERS OPEN TO BE DEALT WITH ON REMAND.  WE DO NOTE FROM THE
TRIAL COURT'S OPINION THAT EXCEPT FOR VIOLENCE AND SOME PICKETING,
ISSUES OF UNION RESPONSIBILITY FOR ACTS ALLEGED AND PROVED WERE
NONEXISTENT OR PLAYED LITTLE PART IN THE THINKING OF THE TRIAL JUDGE. 

/6/  "IN CIVIL CASES (THE FACT FINDER'S) DUTY IS TO WEIGH THE
EVIDENCE CAREFULLY, AND TO FIND FOR THE PARTY IN WHOSE FAVOR IT
PREPONDERATES . . . ."  LILIENTHAL'S TOBACCO V. UNITED STATES, 97 U.S.
237, 266 (1878). 

/7/  AS WE NOTED IN UNITED MINE WORKERS V. GIBBS, 383 U.S. 715, 736
N. 26 (1966), THE FULLEST STATEMENT CONCERNING THE BASIS AND IMPACT OF
SEC. 6 IS FOUND IN S. REP. NO. 163, 72D CONG., 1ST SESS., 19-21. 

/8/  "MOREOVER, IT WILL BE OBSERVED THAT THIS SECTION . . . APPLIES
BOTH TO ORGANIZATIONS OF LABOR AND ORGANIZATIONS OF CAPITAL."  ID., AT
19. 

/9/  THE "MORE STRINGENT STANDARDS" OF SEC. 6 WERE MODIFIED BY
CONGRESS FOR PURPOSES OF THE LABOR MANAGEMENT RELATIONS ACT.  UNITED
MINE WORKERS V. GIBBS, 383 U.S. 715, 736 (1966).  SEE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, SEC. 2(13), 61 STAT. 139, 29 U.S.C. 152(13);
LABOR MANAGEMENT RELATIONS ACT, 1947, SECS. 301(E), 303(B), 61 STAT.
157, 159, 29 U.S.C. 185(E), 187(B). 

/10/  FROM THE OPINION OF THE DISTRICT COURT IT APPEARS THAT GEORGE
RAMSEY, ONE OF THE PETITIONERS, "WAS A SIGNATORY TO THE NATIONAL
BITUMINOUS COAL WAGE AGREEMENT FROM THE TIME HE BEGAN OPERATIONS (IN
1954) UNTIL 1960.  IN 1958 HE WAS SUED BY THE WELFARE FUND FOR NON
PAYMENT OF ROYALTIES AND THE FOLLOWING TWO YEARS HIS PAYMENTS TO THE
WELFARE FUND EXCEEDED HIS PROFITS.  IN FACT, HE LOST MONEY IN 1960.  IN
THAT YEAR HIS EMPLOYEES WITHDREW FROM THE U.M.W. CONTRACT."  265
F.SUPP.,AT 428.  OTHER COMPANIES REFUSED TO SIGN THE NATIONAL CONTRACT
AND NEGOTIATED FOR MODIFICATIONS.  "(ON DECEMBER 26, 1962, THE MINERS
IN MOST OF THE SOUTHEASTERN TENNESSEE COAL FIELD CEASED WORKING . . . .
WHILE IT DOES NOT APPEAR THAT THE U.M.W. CALLED THE STRIKE, IT IS CLEAR
THAT IT SANCTIONED AND APPROVED THE STRIKE."  IBID. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
HARLAN, AND MR. JUSTICE MARSHALL CONCUR, DISSENTING. 

THIS PHASE OF THIS PROTRACTED LITIGATION INVOLVES QUITE A DIFFERENT
PROBLEM THAN THE ONE PRESENTED IN UNITED MINE WORKERS V. PENNINGTON,
381 U.S. 657.  PENNINGTON INVOLVED THE QUESTION WHETHER SEC. 20 OF THE
CLAYTON ACT, 38 STAT. 738, AND SEC. 4 OF THE NORRIS-LAGUARDIA ACT, 47
STAT. 70, UNDER THE COMPLAINT THERE MADE EXEMPTED THE UNITED MINE
WORKERS FROM LIABILITY UNDER THE ANTITRUST LAWS.  THAT WAS RECOGNIZED
AS THE SINGLE ISSUE.  ID., AT 661-666.  THE COURT SAID, "(WE THINK A
UNION FORFEITS ITS EXEMPTION FROM THE ANTITRUST LAWS WHEN IT IS CLEARLY
SHOWN THAT IT HAS AGREED WITH ONE SET OF EMPLOYERS TO IMPOSE A CERTAIN
WAGE SCALE ON OTHER BARGAINING UNITS."  ID., AT 665. 

THE QUESTION IN THIS CASE INVOLVES NOT THE SCOPE OF THE EXEMPTION
BUT WHETHER THE SHERMAN ACT HAS BEEN VIOLATED.  AS WE SAID IN APEX
HOSIERY CO. V. LEADER, 310 U.S. 469, 512, "(ACTIVITIES OF LABOR
ORGANIZATIONS NOT IMMUNIZED BY THE CLAYTON ACT ARE NOT NECESSARILY
VIOLATIONS OF THE SHERMAN ACT." 

A UNION-EMPLOYER AGREEMENT TO FORCE OTHER EMPLOYERS OUT OF BUSINESS
CAUSES THE UNION TO LOSE ITS EXEMPTION.  BUT THE FACT THAT A UNION MAY
BE SUED UNDER THE SHERMAN ACT DOES NOT MEAN THAT IT IS NECESSARILY
LIABLE.  THE QUESTION IN THE PRESENT CASE IS, INDEED, ONLY ONE PHASE OF
THE ALLEGED SHERMAN ACT VIOLATION.  IT SOLELY CONCERNS THE KIND OF
PROOF NEEDED. 

THIS PHASE OF THE LITIGATION TURNS ON THE MEANING OF SEC. 6 OF THE
NORRIS-LAGUARDIA ACT, 47 STAT. 71, 29 U.S.C. 106, WHICH PROVIDES: 

     "NO OFFICER OR MEMBER OF ANY ASSOCIATION OR ORGANIZATION, AND

  NO ASSOCIATION OR ORGANIZATION PARTICIPATING OR INTERESTED IN A

  LABOR DISPUTE, SHALL BE HELD RESPONSIBLE OR LIABLE IN ANY COURT

  OF THE UNITED STATES FOR UNLAWFUL ACTS OF INDIVIDUAL OFFICERS,

MEMBERS, OR AGENTS, EXCEPT UPON CLEAR PROOF OF ACTUAL

  PARTICIPATION IN, OR ACTUAL AUTHORIZATION OF, SUCH ACTS, OR OF

  RATIFICATION OF SUCH ACTS AFTER ACTUAL KNOWLEDGE THEREOF." 

THE COURT SAYS THAT:  "ON ITS FACE SEC. 6 IS NOT ADDRESSED TO THE
QUANTUM OF EVIDENCE TO PROVE THE OCCURRENCE OF THE ALLEGED 'UNLAWFUL
ACTS.'"  I RESPECTFULLY DISAGREE. 

UNIONS USUALLY ACT THROUGH OFFICERS, MEMBERS, OR AGENTS, NOT AS A
BODY.  THEIR LIABILITY IS THEREFORE VICARIOUS; AND CONGRESS WAS ANXIOUS
TO SAFEGUARD, CURTAIL, AND LIMIT IT.  THE "CLEAR PROOF" REQUIRED WAS
NOT RESTRICTED TO "CLEAR PROOF" OF AUTHORITY TO ACT OR "CLEAR PROOF" OF
AGENCY OR "CLEAR PROOF" OF AUTHORITY TO COMMIT "THE UNLAWFUL ACTS." 
THE "CLEAR PROOF" REQUIRED WAS "CLEAR PROOF" OF "ACTUAL PARTICIPATION"
IN THE "UNLAWFUL ACTS."  THE "CLEAR PROOF" REQUIRED WAS "CLEAR PROOF"
OF THE "RATIFICATION" OF THE "UNLAWFUL ACTS." 

AUTHORIZATION TO PERFORM THOSE "UNLAWFUL ACTS" LIKE RATIFICATION OF
THEM OR PARTICIPATION IN THEM MUST, IF SEC. 6 IS TO BE GIVEN FULL
VITALITY, BE BASED ON "CLEAR PROOF" THAT THE UNION HAD FULL COMPLICITY
IN THE SCHEME.  /1/  IT IS IN MY VIEW A DRASTIC REWRITING OF SEC. 6 TO
CONCLUDE AS DOES THE COURT THAT:  "THE STRAIGHTFORWARD ANSWER WAS SEC.
6, WITH ITS REQUIREMENT THAT WHEN ILLEGAL ACTS OF ANY INDIVIDUAL ARE
CHARGED AGAINST ONE OF THE MAJOR ANTAGONISTS IN A LABOR DISPUTE--
WHETHER EMPLOYER OR UNION-- THE EVIDENCE MUST CLEARLY PROVE THAT THE
INDIVIDUAL'S ACTS WERE AUTHORIZED OR RATIFIED." 

UNITED MINE WORKERS AND BCOA (BITUMINOUS COAL OPERATORS ASSOCIATION)
ENTERED INTO AN INDUSTRY-WIDE WAGE AGREEMENT IN 1958 WHICH PROVIDED
WAGE SCALES FOR EMPLOYEES OF ALL "SIGNATORY OPERATORS" OF COAL LANDS OR
LEASES. 

IT IS ARGUED THAT THIS AGREEMENT CONSTITUTED AN AGREEMENT BY UNITED
MINE WORKERS TO IMPOSE THE WAGE SCALE ON ALL NONSIGNATORY COAL
OPERATORS IN ORDER TO FORCE SOME (INCLUDING PETITIONERS) OUT OF
BUSINESS.  IF THAT WAS THE AGREEMENT THEN, AS I SAID IN PENNINGTON (381
U.S.,AT 674), THE UNION WOULD HAVE LOST ITS EXEMPTION.  BUT THERE IS
NOT A WORD IN THE AGREEMENT, AS I READ IT, THAT COVERS NONSIGNATORY
OPERATORS. 

IT IS, HOWEVER, CONTENDED THAT EVEN THOUGH THERE IS NO EXPRESS
COMMITMENT TO DRIVE MARGINAL OPERATORS OUT OF BUSINESS, THERE WAS A
CONSPIRACY BETWEEN BCOA AND UNITED MINE WORKERS TO IMPOSE A WAGE SCALE
UPON THE TOTAL INDUSTRY WHICH HAD THE PURPOSE AND EFFECT OF DRIVING THE
SMALL, MARGINAL OPERATORS OUT OF BUSINESS. 

ON THIS ISSUE OF THE CASE, JUDGE WILSON OF THE DISTRICT COURT
RULED: 

     "WERE THIS CASE BEING TRIED UPON THE USUAL PREPONDERANCE OF
THE

  EVIDENCE RULE APPLICABLE TO CIVIL CASES, THE COURT WOULD CONCLUDE

  THAT THE U.M.W. DID SO IMPLIEDLY AGREE.  HOWEVER, THE STANDARD OF

  PROOF WHERE A LABOR UNION IS INVOLVED IS 'CLEAR PROOF,' AS

  REQUIRED BY SECTION 6 OF THE NORRIS-LAGUARDIA ACT, A STANDARD

  DIFFERENT FROM THE ORDINARY CIVIL BURDEN OF PERSUASION.  UNITED

  BROTHERHOOD OF CARPENTERS V. UNITED STATES, 330 U.S. 395 . . .;

  UNITED MINE WORKERS V. GIBBS, 383 U.S. 715 . . . . THE COURT IS

  OF THE OPINION THAT THE EVIDENCE UPON THE RECORD IN THIS CASE

  DOES NOT ESTABLISH SUCH CLEAR AND UNEQUIVOCAL PROOF AS TO WARRANT

  THE COURT IN FINDING THAT THE U.M.W. PURSUED ITS POLICY OF

  UNIFORMITY OF WAGE AND LABOR STANDARDS BY AGREEMENT WITH ONE OR

MORE EMPLOYERS, AD DISTINGUISHED FROM PURSUING SUCH POLICY UPON

  ITS OWN.  THE ONLY DIRECT EVIDENCE IN THE RECORD IS TO THE EFFECT

  THAT THE UNION PURSUED SUCH POLICY UPON ITS OWN, AND NOT IN

  AGREEMENT WITH ANY EMPLOYER."  265 F.SUPP.  388, 412. 

THE ACTION OF UNITED MINE WORKERS OFFICIALS IN AGREEING TO THE WAGE
CLAUSE WAS THE ACTION OF FULLY AUTORIZED AGENTS.  IF THAT IS ALL THAT
THE "CLEAR PROOF" OF SEC. 6 REQUIRES, THE CASE WOULD BE EASY.  FOR THEN
IT WOULD BE IMMATERIAL WHETHER "CLEAR PROOF" OF AN ILLEGAL PURPOSE OR
"PREPONDERANCE OF THE EVIDENCE" WERE THE TEST, FOR WHICHEVER WERE
REQUIRED, THERE WOULD BE NO DIFFERENCE.  IF THEREFORE "CLEAR PROOF" IS
TO SET LABOR-ANTITRUST CASES APART FROM THE REST-- AS IT CLEARLY WAS
DESIGNED TO DO-- IT MUST EMBRACE A UNION PROGRAM TOM IMPOSE A WAGE
SCALE ON THE ENTIRE INDUSTRY WITH THE PURPOSE AND EFFECT OF DRIVING THE
SMALL, MARGINAL OPERATORS OUT OF BUSINESS. 

JUDGE WILSON OF THE DISTRICT COURT AND EIGHT MEMBERS OF THE COURT OF
APPEALS HAVE REVIEWED THE EVIDENCE IN DETAIL.  WHILE THEY AGREE THAT A
CASE AGAINST THE UNION HAD BEEN MADE OUT IF "PREPONDERANCE OF THE
EVIDENCE" IS THE TEST, NONE HAS SUGGESTED THAT THE "CLEAR PROOF" TEST
HAS BEEN SATISFIED IF IT IS TO MEAN && MORE THAN "CLEAR PROOF" OF AN
AGENCY RELATION. 

IN UNITED MINE WORKERS V. GIBBS, 383 U.S. 715, 739, WE SPOKE OF THE
EFFECT OF SEC. 6 IN A CASE WHERE THE UNION IS CHARGED WITH THE DAMAGES
FLOWING FROM VIOLENCE: 

     "WHAT IS REQUIRED IS PROOF, EITHER THAT THE UNION APPROVED THE

  VIOLENCE WHICH OCCURRED, OR THAT IT PARTICIPATED ACTIVELY OR BY

  KNOWING TOLERANCE IN FURTHER ACTS WHICH WERE IN THEMSELVES

  ACTIONABLE UNDER STATE LAW OR INTENTIONALLY DREW UPON THE

  PREVIOUS VIOLENCE FOR THEIR FORCE." 

IF IN GIBBS UNION OFFICIALS WERE AUTHORIZED TO TALK WITH EMPLOYERS
AND TO PROTEST CERTAIN ISSUES THAT THREATENED THE UNION'S INTERESTS,
WOULD THE UNION BE LIABLE IF THE PROTEST BECAME SO HEATED THAT IT
ERUPTED INTO VIOLENCE?  CERTAINLY NOT.  AUTHORIZATION TO USE DYNAMITE
IN THE PROTEST WOULD BE "CLEAR PROOF"; AUTHORIZATION TO CARRY DYNAMITE
FOR A LAWFUL PURPOSE WOULD CERTAINLY NOT BE "CLEAR PROOF" OF THE
AUTHORIZATION TO USE THE DYNAMITE TO DESTROY AN EMPLOYER'S BUSINESS. 

IN THE PRESENT CASE, AUTHORIZATION OF UNION OFFICIALS TO USE THEIR
EFFORTS TO GET AN INDUSTRY-WIDE WAGE SCALE DOES NOT NECESSARILY INCLUDE
AUTHORIZATION TO DRIVE SOME EMPLOYERS OUT OF BUSINESS.  AS MR. JUSTICE
GOLDBERG POINTED OUT IN MEAT CUTTERS V. JEWEL TEA, 381 U.S. 676, 697 ET
SEQ., THERE IS OBVIOUSLY NOTHING ILLEGAL PER SE ABOUT INDUSTRY-WIDE
COLLECTIVE BARGAINING.  /2/  A PARTICULAR AGREEMENT BECOMES VULNERABLE
UNDER THE ANTITRUST LAWS ONLY IF THERE IS "CLEAR PROOF" THAT THE
PURPOSE OF THE UNION /3/  WAS NOT TO ADVANCE THE COAL MINERS' INTERESTS
BUT TO DO IN ONE OR MORE OPERATORS.     BY THE SAME REASONING WE SHOULD
ASK HERE:  WAS THERE "CLEAR PROOF"  THAT THE UNION APPROVED A PLAN TO
DRIVE SMALL, MARGINAL OPERATORS OUT OF BUSINESS?     SINCE ON THIS
RECORD NO ONE HAS SUGGESTED THAT THERE IS SUCH "CLEAR PROOF," THE
JUDGMENT OF THE DISTRICT COURT SHOULD BE AFFIRMED. 

/1/  THAT WAS OUR CONSTRUCTION OF SEC. 6 IN UNITED BROTHERHOOD OF
CARPENTERS V. UNITED STATES, 330 U.S. 395, 410-411.  THAT CONSTRUCTION
PROVOKED MR. JUSTICE FRANKFURTER TO SAY IN DISSENT:  "PRACTICALLY
SPEAKING, THE INTERPRETATION GIVEN BY THE COURT TO SEC. 6 SERVES TO
IMMUNIZE UNIONS, ESPECIALLY THE MORE ALERT AND POWERFUL, AS WELL AS
CORPORATIONS INVOLVED IN LABOR DISPUTES, FROM SHERMAN LAW LIABILITY. 
TO INSIST THAT SUCH IS NOT THE RESULT INTENDED BY THE COURT IS TO DENY
THE PRACTICAL CONSEQUENCES OF THE COURT'S RULING."  ID., AT 422. 

YET, AS S. REP. NO. 163, 72D CONG., 1ST SESS., 19, SAID RESPECTING
SEC. 6:  "OPPOSITION TO THIS SECTION HAS BEEN VOICED ON THE GROUND THAT
IT SEEKS TO ESTABLISH A 'NEW LAW OF AGENCY.'  IN THE FIRST PLACE, THIS
THERE IS NO PROVISION MADE RELIEVING AN INDIVIDUAL FROM RESPONSIBILITY
FOR HIS ACTS, BUT PROVISION IS MADE THAT A PERSON SHALL NOT BE HELD
RESPONSIBLE FOR AN 'UNLAWFUL ACT' EXCEPT UPON 'CLEAR PROOF' OF
PARTICIPATION OR AUTHORIZATION OR RATIFICATION."  AND SEE H.R. CONF.
REP.  NO. 793, 72D CONG., 1ST SESS., 6; H.R. CONF. REP. NO. 821, 72D
CONG., 1ST SESS., 6. 

/2/  MR. JUSTICE GOLDBERG SAID:  "THIS HISTORY ALSO SHOWS THAT LABOR
CONTRACTS ESTABLISHING MORE OR LESS STANDARDIZED WAGES, HOURS, AND
OTHER TERMS AND CONDITIONS OF EMPLOYMENT IN A GIVEN INDUSTRY OR MARKET
AREA ARE OFTEN SECURED EITHER THROUGH BARGAINING WITH MULTI-EMPLOYER
ASSOCIATIONS OR THROUGH BARGAINING WITH MARKET LEADERS THAT SETS A
'PATTERN' FOR AGREEMENTS ON LABOR STANDARDS WITH OTHER EMPLOYERS. 
THESE ARE TWO SIMILAR SYSTEMS USED TO ACHIEVE THE IDENTICAL RESULT OF
FOSTERING LABOR PEACE THROUGH THE NEGOTIATION OF UNIFORM LABOR
STANDARDS IN AN INDUSTRY."  381 U.S.,AT 722. 

/3/  IN THE PRIOR CONGRESS A MEASURE LIKE SEC. 6 WAS INTRODUCED.  IT
IS DESCRIBED IN S. REP. NO. 1060, PT. 2, 71ST CONG., 2D SESS., 18-19:
"(WHY SHOULD AN OFFICER OF A LABOR UNION, WHO HAS SPECIFICALLY ADVISED
MEMBERS THAT VIOLENCE MUST BE AVOIDED, BECOME RESPONSIBLE FOR THE HOT
HEADED ACTION OF SOME MEMBER IN PERHAPS ASSAULTING A STRIKE BREAKER? 
AGAIN, THE RELATIONSHIP BETWEEN OFFICERS AND MEMBERS OF LABOR UNIONS
AND OTHER MEMBERS IS NOT THAT OF EMPLOYER AND EMPLOYEE.  THE OFFICERS
CHOSEN BY A UNION ARE NOT EMPLOYERS OF THE MEMBERSHIP.  THEY HAVE NO
CONTROL OVER THEIR ASSOCIATES BASED UPON THE POWER OF DETERMINING
WHETHER OR NOT THEY WILL EMPLOY THEM.  IT MAY BE ACCEPTED THAT IF A
GROUP ASSOCIATED IN COMMON ACTIVITIES BECOMES CONTROLLED BY A LAWLESS
MAJORITY, IT MAY BE NECESSARY FOR LAW-ABIDING MEN TO DISSOLVE THEIR
ASSOCIATION WITH LAWBREAKERS; BUT THE DOCTRINE THAT A FEW LAWLESS MEN
CAN CHANGE THE CHARACTER OF AN ORGANIZATION WHOSE MEMBERS AND OFFICERS
ARE VERY LARGELY LAW-ABIDING IS ONE WHICH HAS BEEN DEVELOPED PECULIARLY
AS JUDGE-MADE LAW IN LABOR DISPUTES, AND IT IS HIGH TIME THAT, BY
LEGISLATIVE ACTION, THE COURTS SHOULD BE REQUIRED TO UPHOLD THE LONG
ESTABLISHED LAW THAT GUILT IS PERSONAL AND THAT MEN CAN ONLY BE HELD
RESPONSIBLE FOR THE UNLAWFUL ACTS OF ASSOCIATES BECAUSE OF
PARTICIPATION IN, AUTHORIZATION OR RATIFICATION OF SUCH ACTS.  AS A
RULE OF EVIDENCE, CLEAR PROOF SHOULD BE REQUIRED, SO THAT CRIMINAL
GUILT AND CRIMINAL RESPONSIBILITY SHOULD NOT BE IMPUTED BUT PROVEN
BEYOND REASONABLE DOUBT IN ORDER TO IMPOSE LIABILITY." 

JOHN A ROWNTREE ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE CLARENCE E. WALKER, WILLIAM M. ABLES, JR., SIZER CHAMBLISS,
AND A. ALLAN KELLY. 

EDWARD BENNETT WILLIAMS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM
ON THE BRIEF WERE STEVEN M. UMIN, EDWARD L. CAREY, HARRISON COMBS,
WILLARD P. OWENS, E. H. RAYSON, AND M. E. BOIARSKY. 

GUY FARMER FILED A BRIEF FOR THE BITUMINOUS COAL OPERATORS'
ASSOCIATION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :




ZENITH RADIO CORP. V. HAZELTINE RESEARCH, 401 U.S. 321 


       ZENITH RADIO CORP. V. HAZELTINE RESEARCH, INC.

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 80.  ARGUED NOVEMBER 10, 1970-- DECIDED FEBRUARY 24,

           1971 


RESPONDENT (HRI) BROUGHT A PATENT INFRINGEMENT SUIT AGAINST
PETITIONER (ZENITH) IN 1959, AND IN 1963 ZENITH COUNTERCLAIMED FOR
DAMAGES ALLEGING VIOLATIONS OF THE SHERMAN AND CLAYTON ACTS BY HRI'S
PARTICIPATION IN PATENT POOLS IN CANADA, GREAT BRITAIN, AND AUSTRALIA,
RESTRICTING ZENITH'S OPERATIONS IN THOSE COUNTRIES.  A FINDINGS OF FACT
AND CONCLUSIONS OF LAW FAVORING ZENITH.  HRI THEN MOVED TO AMEND ITS
REPLY TO THE COUNTERCLAIM AND TO REOPEN THE RECORD FOR TAKING
ADDITIONAL EVIDENCE.  HRI SOUGHT TO ASSERT DEFENSES OF THE STATUTE OF
LIMITATIONS, AND RELEASE, CLAIMING THAT PART OF THE DAMAGES AWARDED
ZENITH FOR 1959-1963 WERE CAUSED BY PRE-1959 CONDUCT AND THUS BARRED BY
THE STATUTE OF LIMITATIONS, OR WERE BARRED BY A 1957 RELEASE GIVEN BY
ZENITH TO CERTAIN AMERICAN COMPANIES IN SETTLEMENT OF A CIVIL TREBLE
DAMAGE ACTION.  THE TRIAL JUDGE PERMITTED THE DEFENSES TO BE FILED BUT
REFUSED TO REOPEN THE RECORD OR MODIFY HIS FINDINGS AND CONCLUSIONS
CONCERNING THE CANADIAN MARKET.  THE COURT OF APPEALS REVERSED ON THE
GROUND THAT ZENITH HAD FAILED TO PROVE INJURY TO ITS BUSINESS.  THIS
COURT REVERSED WITH RESPECT TO CANADA, HOLDING THAT THERE WAS AMPLE
EVIDENCE OF DAMAGE IN THE CANADIAN MARKET AND NOTING THAT THE TRIAL
JUDGE HAD EITHER REJECTED THE LIMITATIONS AND RELEASE DEFENSES ON THE
MERITS OR DEEMED THEM WAIVED, 395 U.S. 100.  ON REMAND THE COURT OF
APPEALS HELD THAT THE TRIAL JUDGE ERRONEOUSLY REJECTED THE DEFENSES ON
THEIR MERITS.  THAT COURT, WHILE DOUBTING THAT ZENITH'S CLAIM THAT THE
STATUTE OF LIMITATIONS WAS TOLLED (BY REASON OF A GOVERNMENT ANTITRUST
SUIT PENDING FROM 1958 TO 1963 AGAINST VARIOUS COMPANIES PARTICIPATING
ALONG WITH HRI IN THE CANADIAN PATENT POOL), WAS PROPERLY BEFORE IT,
SINCE NO FORMAL PLEA HAD BEEN ENTERED, REJECTED THE TOLLING ARGUMENT,
CONCLUDING THAT TOLLING TAKES PLACE ONLY WITH RESPECT TO PARTIES TO A
GOVERNMENT SUIT AND HRI WAS NOT SUCH A PARTY.  THE COURT FURTHER
ORDERED EVIDENCE TO DETERMINE THE EXTENT OF REDUCTION OF DAMAGES BY
VIRTUE OF THE DEFENSES IT SUSTAINED.  HELD: 

1.  UNDER THE CIRCUMSTANCES OF THIS CASE, THE TRIAL JUDGE DID NOT
ABUSE HIS DISCRETION IF HIS REJECTION OF THE LIMITATIONS AND RELEASE
DEFENSES WAS BASED ON HRI'S WAIVER DUE TO UNTIMELINESS OF THEIR
PRESENTATION.  PP. 328-333. 

2.  THE COURT OF APPEALS ERRONEOUSLY REJECTED ZENITH'S CLAIM THAT
THE STATUTE OF LIMITATIONS WAS TOLLED DURING THE PENDENCY OF THE
GOVERNMENT'S ANTITRUST SUIT AGAINST THE OTHER PARTICIPANTS IN THE
PATENT POOL.  PP. 333-338. 

(A) WHERE, AS HERE, A PLAINTIFF HAS NO REASON TO ANTICIPATE THAT A
CLAIM OF LIMITATIONS WILL BE RAISED AGAINST HIM, HE NEED NOT SET FORTH
HIS CLAIM OF TOLLING UNTIL THE LIMITATIONS CLAIM IS RAISED.  P. 334. 

(B) UNDER 28 U.S.C. 16(B) THE STATUTE OF LIMITATIONS IS TOLLED
AGAINST ALL PARTICIPANTS IN A CONSPIRACY THAT IS THE OBJECT OF A
GOVERNMENT SUIT, WHETHER OR NOT THEY ARE NAMED AS DEFENDANTS OR
CONSPIRATORS THEREIN.  PP. 335-338. 

3.  A PLAINTIFF IN AN ANTITRUST ACTION MAY RECOVER DAMAGES OCCURRING
WITHIN THE STATUTORY LIMITATION PERIOD THAT ARE THE RESULT OF CONDUCT
OCCURRING PRIOR TO THAT PERIOD IF, AT THE TIME OF THE CONDUCT, THOSE
DAMAGES WERE SPECULATIVE, UNCERTAIN, OR OTHERWISE INCAPABLE OF PROOF. 
PP. 338-342. 

4.  THE EFFECT OF A RELEASE UPON COCONSPIRATORS IS TO BE DETERMINED
IN ACCORDANCE WITH THE INTENTION OF THE PARTIES, AND HERE HRI, WHICH
WAS NEITHER A PARTY TO THE 1957 RELEASE NOR A PARENT OR SUBSIDIARY OF A
PARTY, IS NOT ENTITLED TO THE BENEFIT OF THE RELEASE, AS THE AGREEMENT
TO EXCHANGE RELEASES PROVIDED EXPRESSLY THAT THEY WERE "TO BIND OR
BENEFIT" THE PARTY AND "THE PARENT AND SUBSIDIARIES OF THE PARTY GIVING
OR RECEIVING SUCH RELEASE."  PP. 342-348. 

418 F.2D 21, REVERSED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BLACK, DOUGLAS, BRENNAN, MARSHALL, AND BLACKMUN, JJ., JOINED. 
HARLAN, J., FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH
STEWART, J., JOINED, POST, P. 349. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS IS THE SECOND TIME THIS MARATHON LITIGATION HAS BEEN BEFORE US.
IT BEGAN IN 1959 AS A SUIT FOR PATENT INFRINGEMENT BROUGHT BY
HAZELTINE RESEARCH, INC. (HEREAFTER HRI), AGAINST ZENITH.  IN 1963,
ZENITH FILED A COUNTERCLAIM AGAINST HRI ALLEGING VIOLATIONS OF THE
SHERMAN AND CLAYTON ACTS, AS AMENDED, 26 STAT. 209, 38 STAT. 731, 15
U.S.C. 1, 2, 15, 26, BY REASON OF HRI'S PARTICIPATION IN PATENT POOLS
IN CANADA, GREAT BRITAIN, AND AUSTRALIA.  THESE POOLS, IT WAS CLAIMED,
OPERATED TO EXCLUDE ZENITH FROM THOSE FOREIGN MARKETS BY REFUSING TO
GRANT PATENT LICENSES TO AMERICAN MANUFACTURERS SEEKING TO EXPORT
AMERICAN-MADE RADIO AND TELEVISION SETS.  TRIAL WAS HAD WITHOUT A
JURY.  ZENITH SUBMITTED TELLING EVIDENCE AS TO THE EXISTENCE AND
OPERATION OF THE CONSPIRACY AND HRI'S PARTICIPATION IN EACH OF THE
MARKETS.  ZENITH DEMONSTRATED THE FACT AND EXTENT OF ITS BUSINESS
INJURY BY ESTIMATING THE PERCENTAGE OF THE FOREIGN MARKET IT WOULD HAVE
ENJOYED ABSENT THE CONSPIRACY DURING THE FOUR YEARS PRIOR TO 1963 AND
SHOWING THE PORTION IT ACTUALLY ENJOYED DURING THOSE YEARS.  THE
DIFFERENCE BETWEEN THE PROFITS IT ACTUALLY MADE AND THE PROFITS IT
WOULD HAVE MADE IN A FREE MARKET DURING THE FOUR YEARS WAS THE MEASURE
OF THE DAMAGES DEMANDED. 

A YEAR AFTER EVIDENCE WAS CLOSED, THE TRIAL JUDGE ENTERED
PRELIMINARY FINDINGS OF FACT AND CONCLUSIONS OF LAW FAVORING ZENITH. 
HE CONCLUDED THAT ZENITH HAD BEEN DAMAGED $6,297,371 IN THE CANADIAN
MARKET, $9,248,926 IN THE ENGLISH, AND $692,555 IN THE AUSTRALIAN, A
TOTAL OF $16,238,872 BEFORE TREBLING.  HRI THEN MOVED TO AMEND ITS
REPLY TO ZENITH'S COUNTERCLAIM AND TO REOPEN THE RECORD FOR THE TAKING
OF ADDITIONAL EVIDENCE.  THE MOTION SOUGHT LEAVE TO ASSERT THE DEFENSES
OF LIMITATIONS AND RELEASE; THE CLAIM WAS THAT PART OR ALL OF THE
DAMAGES AWARDED TO ZENITH FOR THE FOUR YEARS 1959-1963 WERE CAUSED BY
PRE-1959 CONDUCT AND TO THAT EXTENT WERE BARRED BY THE STATUTE OF
LIMITATIONS, 15 U.S.C. 15B, OR BY A RELEASE GIVEN BY ZENITH TO CERTAIN
AMERICAN COMPANIES IN 1957.  HRI ALSO SOUGHT LEAVE TO PROVE THAT UNTIL
SPECIFIED DATES ZENITH'S EXCLUSION FROM THE ENGLISH AND AUSTRALIAN
MARKETS HAD BEEN DUE, NOT TO THE OPERATION OF THE ALLEGED PATENT POOLS,
BUT TO SUCH MATTERS AS OFFICIAL EMBARGOES, TARIFFS, AND TECHNICAL
FACTORS.  THE TRIAL JUDGE AGREED TO TAKE ADDITIONAL EVIDENCE WITH
RESPECT TO ENGLAND AND AUSTRAILIA BUT REFUSED TO REOPEN THE RECORD FOR
OTHER PURPOSES OR TO MODIFY HIS FINDINGS AND CONCLUSIONS CONCERNING THE
CANADIAN MARKET.  HE DID, HOWEVER, PERMIT THE LIMITATIONS AND RELEASE
DEFENSES TO BE FILED AND, AFTER HEARING EVIDENCE WITH RESPECT TO THE
ENGLISH AND AUSTRALIAN MARKETS, REDUCED HIS AWARD OF DAMAGES WITH
RESPECT TO THEM.  239 F.SUPP.  51 (1965). 

IN THE COURT OF APPEALS, HRI ASSERTED ERROR ON VARIOUS GROUNDS. 
PUTTING ASIDE OTHER ISSUES, THE COURT OF APPEALS REVERSED ON THE GROUND
THAT ZENITH HAD FAILED TO PROVE INJURY TO ITS BUSINESS IN ANY OF THE
THREE MARKETS.  388 F.2D 25 (1967).  WE, IN TURN, AFFIRMED THE JUDGMENT
DENYING RECOVERY FOR THE ALLEGED INJURY IN THE ENGLISH AND AUSTRALIAN
MARKETS, BUT REVERSED WITH RESPECT TO CANADA, HOLDING THAT ZENITH'S
EVIDENCE AMPLY DEMONSTRATED THE FACT OF DAMAGE IN THE CANADIAN MARKET. 
395 U.S. 100 (1969).  WE ALSO NOTED THAT SOME PORTION OF THE DAMAGES
PROVED AND AWARDED RESULTED FROM CONSPIRATORIAL CONDUCT PRIOR TO 1959
AND THAT THE TRIAL JUDGE HAD EITHER REJECTED ON THE MERITS THE DEFENSES
OF LIMITATIONS AND RELEASE OR DEEMED THEM WAIVED.  ID., AT 117 N. 13. 
WE WENT NO FURTHER, HOWEVER, WITH RESPECT TO THE ISSUES SURROUNDING
EITHER DEFENSE. 

THE COURT OF APPEALS ON REMAND ACCEPTED AS DULY PROVED THAT ABSENT
THE CONSPIRACY ZENITH WOULD HAVE ENJOYED A 16% SHARE OF THE CANADIAN
MARKET AND THAT THE DIFFERENCE BETWEEN 16% AND THE SHARE IT ACTUALLY
HAD WAS THE MEASURE OF THE TOTAL DAMAGES INFLICTED BY THE CONSPIRACY
DURING THE FOUR YEARS 1959-1963.  BUT RECOGNIZING THAT SOME PORTION OF
ZENITH'S BUSINESS INJURY RESULTED FROM CONSPIRATORIAL CONDUCT PRIOR TO
1959, THE COURT WENT ON TO HOLD THAT THE TRIAL JUDGE HAD NOT REJECTED
THE DEFENSES OF LIMITATIONS AND RELEASE ON WAIVER GROUNDS BUT HAD
ERRONEOUSLY REJECTED THEM ON THEIR MERITS, AND FURTHER THAT ZENITH'S
CLAIM THAT THE STATUTE HAD BEEN TOLLED HAD BEEN WAIVED BY ZENITH AND
WAS IN ANY EVENT UNSOUND.  FINALLY, THE COURT ORDERED FURTHER EVIDENCE
TO BE TAKEN IN THE TRIAL COURT TO DETERMINE THE EXTENT TO WHICH, IF
ANY, THE DAMAGES AWARDED BY THE TRIAL COURT SHOULD BE REDUCED BY VIRTUE
OF THE DEFENSES SUSTAINED IN THE COURT OF APPEALS.  418 F.2D 21
(1969). 

WE GRANTED CERTIORARI.  397 U.S. 979 (1970).  ZENITH'S PRINCIPAL
CONTENTIONS HERE ARE THAT THE TRIAL JUDGE PROPERLY DEEMED THE
LIMITATIONS AND RELEASE DEFENSES TO HAVE BEEN WAIVED, THAT IF NOT
WAIVED, THE DEFENSES WERE WITHOUT MERIT, AND THAT IF NOT WAIVED, THE
DEFENSES WERE WITHOUT MERIT, AND THAT IN ANY EVENT THE STATUTE OF
LIMITATIONS WAS TOLLED BY THE PENDENCY OF A GOVERNMENT SUIT AGAINST
HRI'S COCONSPIRATORS.  WE NEED NOT DECIDE WHETHER THE TRIAL JUDGE HELD
THE DEFENSES WAIVED OR REJECTED THEM ON THE MERITS, SINCE IN OUR VIEW,
EITHER COURSE WOULD HAVE BEEN LEGALLY SOUND.  WE THEREFORE REVERSE THE
COURT OF APPEALS. 

        I 

WE DEAL FIRST WITH ZENITH'S CLAIM THAT THE DEFENSES OF LIMITATIONS
AND RELEASE WERE PROPERLY HELD BY THE TRIAL COURT TO HAVE BEEN WAIVED. 
TO DO SO IT IS ESSENTIAL BRIEFLY TO OUTLINE THE COURSE OF THE TRIAL AND
EVIDENCE.  ZENITH'S 1963 COUNTERCLAIM ALLEGED THE EXISTENCE OF THE
CONSPIRACY AND THE IMPACT ON ITS BUSINESS AND PRAYED FOR DAMAGES AND
INJUNCTIVE RELIEF, BUT MADE NO ALLEGATIONS AS TO THE TIME PERIOD AS TO
WHICH DAMAGES WERE SOUGHT.  THESE LATTER MATTERS BECAME CLEAR DURING
THE PRETRIAL PROCEEDINGS AND DURING THE COURSE OF THE TRIAL ITSELF.  IN
ITS PRETRIAL BRIEF AND OPENING STATEMENT ZENITH ASSERTED THAT THE
ILLEGAL POOLS HAD EXISTED FOR MANY YEARS; THAT ZENITH HAD
CONSPIRATORIALLY BEEN REFUSED A LICENSE TO IMPORT INTO CANADA; AND THAT
LITIGATION HAD BEEN THREATENED AND POTENTIAL DISTRIBUTORS DISCOURAGED. 
THE CONSPIRACY WAS SAID TO HAVE BEEN NOT ONLY A LONGSTANDING BUT ALSO A
WORLDWIDE ONE, AGAINST CERTAIN MEMBERS OF WHICH THE UNITED STATES
GOVERNMENT HAD BROUGHT AN ANTITRUST ACTION AND ZENITH ITSELF HAD
RECOVERED $10,000,000 IN 1957 IN SETTLEMENT OF A CIVIL TREBLE-DAMAGE
ACTION.  BUT ZENITH DISCLOSED THAT, ALTHOUGH THE CONSPIRACY HAD BEEN
WORLDWIDE AND LONG EXISTING, IT WOULD SEEK TO RECOVER DAMAGES FOR
RESTRAINT OF ITS TRADE IN THE THREE FOREIGN MARKETS ONLY DURING THE
"FOUR-YEAR STATUTORY DAMAGE PERIOD." 

AT TRIAL ZENITH INTRODUCED VOLUMINOUS EVIDENCE WITH RESPECT TO THE
OPERATION- OF THE CONSPIRACY AND ITS IMPACT ON ITS BUSINESS.  THE
TESTIMONY WITH RESPECT TO CANADA WAS THAT IN A FREE MARKET ZENITH WOULD
HAVE HAD THE SAME SHARE OF THE CANADIAN MARKET AS IT ENJOYED IN THE
UNITED STATES AND THAT THE EXISTENCE AND OPERATION OF THE CONSPIRACY
HAD RESTRICTED ITS CANADIAN BUSINESS.  SPECIFICALLY, ZENITH CLAIMED
THAT IN THE FOUR YEARS AFTER JUNE 1, 1959, IT HAD LOST PROFITS
AGGREGATING SOME $6,300,000 AS THE RESULT OF CONSPIRATORIAL CONDUCT BY
THE CANADIAN PATENT POOL DURING AND PRIOR TO THAT PERIOD.  COUNSEL MADE
ZENITH'S POSITION PERFECTLY CLEAR IN HIS SUMMATION AND POST-TRIAL
BRIEF:  EXCEPT FOR THE CANADIAN POOL, ZENITH WOULD HAVE HAD A 16% SHARE
OF THE CANADIAN MARKET, BUT AS A RESULT OF THE POOL IT HAD ONLY A 3%
SHARE.  ZENITH THUS ARGUED THAT IT WAS ENTITLED TO THE FULL DIFFERENCE
BETWEEN 16% AND 3% FOR THE ENTIRE FOUR-YEAR PERIOD.  IT ALSO MADE
SIMILAR CLAIMS WITH RESPECT TO THE ENGLISH AND AUSTRALIAN MARKETS. 

ALTHOUGH ZENITH'S COUNTERCLAIM ON ITS FACE SOUGHT TO RECOVER ALL
DAMAGES SUFFERED IN PAST YEARS WITHOUT RESTRICTION, /1/  HRI PLEADED
NEITHER LIMITATIONS NOR RELEASE IN ITS REPLY TO THE COUNTERCLAIM. 
ZENITH INSTEAD REVEALED ITS OWN AWARENESS OF THE STATUTORY LIMITATION
PERIOD DURING THE TRIAL AND EXPRESSLY RESTRICTED ITS PROOF TO DAMAGES
SUFFERED DURING THE STATUTORY FOUR-YEAR DAMAGE PERIOD.  HOWEVER, ZENITH
SOUGHT TO RECOVER ALL DAMAGES SUFFERED DURING THOSE YEARS EVEN THOUGH
IT WAS UNMISTAKABLY CLEAR THAT SOME OF THIS DAMAGE HAD BEEN CAUSED BY
CONSPIRATORIAL ACTION PRIOR TO 1959.  YET, AT NO TIME DURING THE TRIAL
DID HRI SUGGEST THAT THE STATUTE BARRED ZENITH'S RECOVERY OF ANY PART
OF ITS TOTAL DAMAGE SUFFERED DURING THAT PERIOD.  HRI DID CHALLENGE
ZENITH'S CLAIM THAT IT WOULD HAVE HAD A 16% SHARE OF THE CANADIAN
MARKET ON THE GROUND THAT THE EVIDENCE WAS SPECULATIVE-- INDEED, THAT
IT WAS SO SPECULATIVE THAT ZENITH HAD FAILED ENTIRELY TO SUSTAIN ITS
BURDEN OF PROVING DAMAGE, BUT IT INTERPOSED NO OBJECTION TO ZENITH'S
DEMAND FOR ALL DAMAGES SUSTAINED DURING THE FOUR-YEAR PERIOD, NO MATTER
WHEN THE OPERATIVE ACTS HAD OCCURRED.  NOT UNTIL ONE YEAR AFTER TRIAL,
WHEN IT LEARNED THAT THE JUDGE'S FINDINGS AND CONCLUSIONS WERE
UNFAVORABLE, DID HRI ASSERT THAT PART OF THE POST-1959 DAMAGE WAS THE
RESULT OF PRE-1959 CONDUCT AND WAS BARRED EITHER BY THE STATUTE OF
LIMITATIONS OR BY THE RELEASE GIVEN BY ZENITH IN 1957 IN SETTLEMENT OF
ITS SUIT AGAINST OTHER AMERICAN COMPANIES.  /2/ 

OTHER THAN A GENERAL ATTACK ON THE SUFFICIENCY OF ZENITH'S PROOF OF
DAMAGES AND A DEMAND THAT THE MATTER BE RELITIGATED, HRI'S POST-TRIAL
MOTION HAD THREE PRINCIPAL BRANCHES.  FIRST, IT SOUGHT LEAVE TO FILE
THE DEFENSE OF LIMITATIONS.  THE MOTION IN EFFECT ASSERTED THAT THE
CONSPIRACY, EVEN IF IT HAD CONTINUED DURING THE DAMAGE PERIOD, HAD
COMMITTED NO DAMAGING OVERT ACTS DURING THAT PERIOD, ALL OF ZENITH'S
DAMAGE BEING CAUSED BY PRE-1959 OPERATIONS OF THE POOL.  HRI ASSERTED
AS A LEGAL MATTER THAT THE STATUTE OF LIMITATIONS WOULD THEREFORE BAR
ZENITH'S ENTIRE CLAIM ON THE RECORD THEN BEFORE THE COURT.  SECOND, HRI
SOUGHT TO INTERPOSE THE DEFENSE OF RELEASE.  THE ARGUMENT WAS THAT SOME
OR ALL OF ZENITH'S POST-1959 DAMAGES WERE THE CONSEQUENCE OF POOL
ACTIVITY OCCURRING PRIOR TO THE DATE OF A 1957 RELEASE GIVEN TO
AMERICAN COMPANIES WHICH WERE COCONSPIRATORS OF HRI IN THE CANADIAN
POOL.  THAT RELEASE, IT WAS CLAIMED, ALSO RELEASED HRI.  THIRD, HRI
SOUGHT TO REOPEN THE RECORD TO SHOW THAT UNTIL WELL INTO THE FOUR-YEAR
DAMAGE PERIOD ZENITH'S INABILITY TO ENTER THE ENGLISH AND AUSTRALIAN
MARKETS WAS DUE TO OFFICIAL EMBARGOES, OTHER GOVERNMENTAL POLICIES AND
TECHNICAL DIFFICULTIES RATHER THAN TO THE OPERATIONS OF THE PATENT
POOLS. 

THE MOTION WAS THOROUGHLY AND EXTENSIVELY ARGUED.  WITH RESPECT TO
THE DEFENSES OF LIMITATIONS AND RELEASE, THE TRIAL COURT'S RULING,
AFTER ZENITH OBJECTED TO THEM AS BEING "TOO LATE," WAS EXPRESSED AS
FOLLOWS:  "WELL, THE RECORD WILL SHOW THAT LEAVE IS GIVEN TO FILE THEM
AT THIS TIME, AFTER PROOFS ARE CLOSED AND AFTER FINDINGS HAVE BEEN
MADE."  /3/  THIS RULING WAS IMMEDIATELY FOLLOWED BY THE COURT'S
REFUSAL EITHER TO REOPEN THE RECORD FOR ADDITIONAL EVIDENCE WITH
RESPECT TO CANADA OR TO MODIFY ITS JUDGMENT IN ANY WAY AS TO THAT
MARKET.  THE RECORD AS TO ENGLAND AND AUSTRAILIA, HOWEVER, WAS REOPENED
FOR FURTHER PROOF AS TO THE OPERATIVE FORCES OTHER THAN THE PATENT
POOLS WHICH IN FACT HAD PREVENTED IMPORTATION OF ZENITH'S PRODUCTS INTO
THOSE MARKETS. 

ARGUABLY, SINCE THE TRIAL JUDGE PERMITTED THE LIMITATIONS AND
RELEASE DEFENSES TO BE FILED BUT THEN REJECTED THEM BY REFUSING TO
AMEND THE JUDGEMENT WITH RESPECT TO CANADA, REJECTION WAS NECESSARILY
ON THE MERITS.  BUT THE RECORD ALSO YIELDS TO THE CONSTRUCTION THAT THE
TWO DEFENSES WERE OVERRULED BECAUSE A JUST AND SENSIBLE RULING ON THEIR
MERITS WOULD HAVE REQUIRED A REOPENING OF THE RECORD FOR A VIRTUAL
RETRIAL OF THE ISSUE OF DAMAGES, AN EVENTUALITY WHICH THE TRIAL COURT
DEEMED UNWARRANTED IN VIEW OF HRI'S DELINQUENCY IN RAISING THE
DEFENSES.  IF THIS WAS THE COURSE THE TRIAL JUDGE TOOK, WE WOULD NOT
DISTURB HIS JUDGMENT. 

AT THE TIME OF THE TRIAL RULE 8(C) OF THE FEDERAL RULES OF CIVIL
PROCEDURE REQUIRED THAT ,(IN PLEADING TO A PRECEDING PLEADING, A PARTY
SHALL SET FORTH AFFIRMATIVELY . . . RELEASE . . . STATUTE OF
LIMITATIONS . . . AND ANY OTHER MATTER CONSTITUTING AN AVOIDANCE OR
AFFIRMATIVE DEFENSE."  RULE 12(H) AT THAT TIME PROVIDED THAT "(A) PARTY
WAIVES ALL DEFENSES AND OBJECTIONS WHICH HE DOES NOT PRESENT" EITHER BY
MOTION OR IN ANSWER OR REPLY.  BASED ON THESE RULES, ZENITH CLAIMS THAT
THE TRIAL COURT WAS REQUIRED TO, AND DID, HOLD THE TWO DEFENSES
WAIVED. 

HRI CONTENDS THAT THE DISTRICT COURT SHOULD HAVE GRANTED IT LEAVE TO
AMEND ITS ANSWER UNDER RULE 15(A), WHICH PROVIDES THAT SUCH "LEAVE
SHALL BE FREELY GIVEN WHEN JUSTICE SO REQUIRES."  HRI'S POSITION IS
THAT THE EVIDENCE IN THE RECORD AT THE TIME IT OFFERED ITS DEFENSES
SHOWED THAT ALL OF THE ACTS CAUSING DAMAGE DURING THE 1959-1963 PERIOD
HAD OCCURRED PRIOR TO 1959; FROM THIS IT FOLLOWS THAT ZENITH HAD
FAILED, ACCORDING TO HRI, TO OFFER ANY EVIDENCE UPON WHICH AN AWARD OF
DAMAGES COULD HAVE BEEN SUSTAINED.  IN THE ALTERNATIVE, HRI ARGUES THAT
THE RECORD SHOWED THAT IT HAD BEEN RELEASED FROM ALL LIABILITY FOR
DAMAGES FLOWING FROM PRE-1957 ACTS.  /4/  IN EITHER CASE, HRI URGES
THAT THE DAMAGE AWARD BE SET ASIDE.     IT IS SETTLED THAT THE GRANT OF
LEAVE TO AMEND THE PLEADINGS PURSUANT TO RULE 15(A) IS WITHIN THE
DISCRETION OF THE TRIAL COURT.  FORMAN V. DAVIS, 371 U.S. 178, 182
(1962) (DICTUM).  IN A MATTER AS SUBSTANTIAL AND COMPLEX AS THIS ONE,
WHERE HRI CLAIMED IT HAD BEEN MISLED OR AT THE VERY LEAST ASKED TO BE
RELIEVED OF MISTAKE OR OVERSIGHT, IT MIGHT HAVE BEEN WITHIN THE
DISCRETION OF THE TRIAL JUDGE TO HAVE PERMITTED HRI TO AMEND ITS
PLEADINGS TO INCLUDE THEREIN THE DEFENSES OF LIMITATIONS AND RELEASE. 
BUT, IN DECIDING WHETHER TO PERMIT SUCH AN AMENDMENT, THE TRIAL COURT
WAS REQUIRED TO TAKE INTO ACCOUNT ANY PREJUDICE THAT ZENITH WOULD HAVE
SUFFERED AS A RESULT, SEE KANELOS V. KETTLER, 132 U.S.APP.D.C. 133, 136
137, N. 15, 406 F.2D 951, 954-955, N. 15 (1968):  UNITED STATE V. 47
BOTTLES, MORE OR LESS, 320 F.2D 564, 573-574 (CA3 1963); CADDY-IMLER
CREATIONS V. CADDY, 299 F.2D 79, 84 (CA9 1962); 3 J. MOORE, FEDERAL
PRACTICE PARA. 15.08(4) (2D ED. 1968), AND HERE THE PREJUDICE TO ZENITH
WOULD HAVE BEEN SUBSTANTIAL.  ZENITH'S THEORY THAT ALL OF ITS DAMAGES
SUFFERED DURING THE FOUR-YEAR PERIOD WERE LEGALLY RECOVERABLE HAD BEEN
MADE QUITE CLEAR DURING THE TRIAL, AND ZENITH HAD PROVED UP ITS DAMAGES
IN ACCORDANCE WITH THAT THEORY.  MEANWHILE HRI HAD NEITHER PLEADED ITS
DEFENSES, OBJECTED TO ZENITH'S EVIDENCE, NOR OTHERWISE HINTED THAT POST
1959 DAMAGES CAUSED BY PRE-1959 CONDUCT WERE FOR ANY REASON BARRED
UNTIL LONG AFTER THE RECORD HAD BEEN CLOSED.  TO HAVE THEN SUSTAINED
HRI'S DEFENSES WOULD HAVE BEEN TO DENY ZENITH THE OPPORTUNITY TO PROVE
ITS RECOVERABLE DAMAGES-- A DENIAL THAT HARDLY COMPORTS WITH THE LETTER
OT THE SPIRIT OF RULE 15(A).  AT THE VERY MINUMUM, IF THE DEFENSE OF
LIMITATIONS OR RELEASE WAS TO BE ENTERTAINED AND DEEMED TO BAR THAT
PART OF ZENITH'S DAMAGES RESULTING FROM THE LINGERING CONSEQUENCES OF
PAST ACTS, ZENITH WOULD HAVE BEEN ENTITLED TO PERFECT ITS PROOF AS TO
DAMAGE RESULTING FROM POOL OPERATIONS DURING THE FOUR-YEAR PERIOD, AS
WELL AS TO PROVE, IF IT COULD, WHAT DAMAGES IT MIGHT HAVE SUFFERED IN
THE FUTURE FROM THOSE ACTS.  TO HAVE PERMITTED ZENITH TO PERFECT ITS
PROOF WOULD, OF COURSE, HAVE REQUIRED REOPENING OF THE RECORD AND A
VIRTUAL RETRIAL OF THE ISSUE OF DAMAGES. 

THE TRIAL JUDGE HERE MIGHT HAVE PERMITTED REOPENING.  LIKE A MOTION
UNDER RULE 15(A) TO AMEND THE PLEADINGS, A MOTION TO REOPEN TO SUBMIT
ADDITIONAL PROOF IS ADDRESSED TO HIS SOUND DISCRETION.  SEE, E.G.,
SWARTZ V. NEW YORK CENTRAL R. CO., 323 F.2D 713, 714 (CA7 1963);
LOCKLIN V. SWITZER BROS., 299 F.2D 160, 169-170 (CA9 1961); GAS RIDGE,
INC. V. SUBURBAN AGRICULTURAL PROPERTIES, INC., 150 F.2D 363, 366,
REHEARING DENIED, 150 F.2D 1020 (CA5 1945); 6A J. MOORE, FEDERAL
PRACTICE PARA. 59.04(13) (2D ED. 1966).  BUT THE RECORD IS CLEAR THAT
HE REFUSED TO REOPEN WITH RESPECT TO DAMAGES IN THE CANADIAN MARKET OR
OTHERWISE TO MODIFY THE CANADIAN JUDGMENT, AND THAT HE THEREBY REJECTED
HRI'S PROFFERED DEFENSES.  ALTHOUGH WE ARE NOT PRIVY TO HIS UNEXPRESSED
THINKING AND ALTHOUGH HIS REFUSAL CAN BE READ AS A REJECTION OF THE
DEFENSES ON THE MERITS, IT CAN ALSO BE READ AS A HOLDING THAT THE
DEFENSES WERE, IN EFFECT, WAIVED BY THE UNTIMELINESS OF THEIR
PRESENTATION AND HENCE THAT THE PLEADINGS WOULD NOT BE AMENDED, EXCEPT
AS A MATTER OF FORM, AND THAT THE TRIAL WOULD NOT BE REOPENED. 

ON THE ASSUMPTION THAT THE TRIAL COURT DID HOLD THE DEFENSES OF
LIMITATIONS AND RELEASE TO HAVE BEEN WAIVED, WE CANNOT SAY THAT THE
JUDGE ABUSED HIS DISCRETION OR STRESSED TOO MUCH THE VALUE OF AVOIDING
REOPENING A TRIAL TO LITIGATE MATTERS THAT HRI HAD HAD AN OPPORTUNITY,
BUT NEGLECTED, TO LITIGATE.  NOR IS IT IRRELEVANT IN THIS CONNECTION
THAT HRI'S CENTRAL CLAIMS DURING TRIAL WERE THAT THERE WAS NO
CONSPIRACY AND THAT ZENITH HAD SUFFERED NO DAMAGE AT ALL.  THE DEFENSES
THAT HRI SET OUT IN THE POST-TRIAL MOTIONS WERE IN A SENSE INCONSISTENT
WITH THESE TRIAL CLAIMS, FOR THE DEFENSES CONCEDED, ALBEIT ONLY
ARGUENDO, THAT A CONSPIRACY DID EXIST AND THAT ZENITH, ABSENT THE
CONSPIRACY, WOULD HAVE CONTROLLED A SIZABLE SHARE OF THE CANADIAN
MARKET.  HRI'S POST-TRIAL ARGUMENT, IN EFFECT, WAS ONE OF CONFESSION
AND AVOIDANCE SHOWING THAT THE CONSPIRACY HAD BEEN SO SUCCESSFUL IN THE
PRE-1959 PERIOD THAT IT COULD BE RELATIVELY OR ENTIRELY QUIESCENT FROM
1959 TO 1963 AND NONETHELESS CAUSE ZENITH SUBSTANTIAL DAMAGES IN THOSE
YEARS.  IT IS QUITE POSSIBLE THAT HRI KNEW EXACTLY WHAT IT WAS DOING IN
NOT PRESENTING THIS ARGUMENT DURING TRIAL AND THAT IT REALIZED A NEED
TO PRESENT IT ONLY AFTER IT LEARNED THAT ITS ORIGINAL ARGUMENTS HAD NOT
INDUCED THE COURT TO HOLD IN ITS FAVOR. 

WHATEVER HRI'S REASONS FOR NOT OFFERING ITS LIMITATIONS AND RELEASE
DEFENSES DURING TRIAL, HOWEVER, THE TRIAL COURT WOULD NOT HAVE ERRED IN
CONCLUDING THAT THEY WERE WAIVED. 

        II 

ASSUMING, HOWEVER, THAT THE DISTRICT JUDGE REJECTED THE DEFENSES OF
LIMITATIONS AND RELEASE ON THE MERITS, AS THE COURT OF APPEALS HELD, WE
CONFRONT THE ISSUE OF WHETHER IT IS CONSISTENT WITH THE CONTROLLING
LIMITATIONS STATUTE, 15 U.S.C. 15B, TO PERMIT ZENITH TO RECOVER ALL OF
THE DAMAGES IT SUFFERED DURING THE YEARS 1959-1963 EVEN THOUGH SOME
UNDETERMINED PORTION OF THOSE DAMAGES WAS THE PROXIMATE RESULT OF
CONDUCT OCCURRING MORE THAN FOUR YEARS PRIOR TO THE FILING OF THE
COUNTERCLAIM.  HRI CONTENDS, AND THE COURT OF APPEALS HELD, THAT THE
STATUTE PERMITS THE RECOVERY ONLY OF THOSE DAMAGES CAUSED BY OVERT ACTS
COMMITTED DURING THE FOUR-YEAR PERIOD.  WE DO NOT AGREE. 

        A 

WE TURN FIRST TO ZENITH'S ARGUMENT THAT, EVEN IF THE STATUTE OF
LIMITATIONS WERE TO BE HELD APPLICABLE IN THIS CASE, THE STATUTE WAS
NONETHELESS TOLLED FROM NOVEMBER 24, 1958, TO NOVEMBER 1, 1963, /5/
PURSUANT TO 15 U.S.C. 16(B) BY REASON OF A GOVERNMENT ANTITRUST ACTION
BROUGHT AGAINST VARIOUS AMERICAN COMPANIES PARTICIPATING ALONG WITH HRI
IN THE CANADIAN POOL.  /6/  IF ZENITH IS CORRECT IN THIS RESPECT AND
THE RUNNING OF THE STATUTE OF LIMITATIONS WAS SUSPENDED DURING THE
PENDENCY OF THE GOVERNMENT SUIT, THEN IT WAS ENTITLED AT THE VERY LEAST
TO SUE IN 1963 FOR ANY DAMAGE TO ITS BUSINESS OCCURRING BY REASON OF
CONSPIRATORIAL CONDUCT AT ANY TIME AFTER NOVEMBER 24, 1954. 

THE COURT OF APPEALS REJECTED THE TOLLING ARGUMENT.  IT HAD SOME
DOUBT WHETHER TOLLING WAS PROPERLY BEFORE IT SINCE ZENITH HAD NEVER
ENTERED A FORMAL PLEA OF TOLLING, AND HRI NOW CONTENDS THAT ZENITH'S
FAILURE TO SO PLEAD IN ITS ORIGINAL COMPLAINT BARS IT FOREVER FROM
RAISING SUCH A CLAIM.  THIS CONTENTION IS WITHOUT MERIT.  THE CASES ON
WHICH HRI RELIES THEMSELVES ESTABLISH THAT WHERE, AS HERE, A PLAINTIFF
HAS NO REASON TO ANTICIPATE THAT A CLAIM OF LIMITATIONS WILL BE RAISED
AGAINST HIM, HE NEED NOT SET FORTH HIS CLAIM OF TOLLING UNTIL THE
LIMITATIONS CLAIM IS RAISED.  SEE NATIONAL & TRANSCONTINENTAL TRADING
CORP. V. INTERNATIONAL GENERAL ELEC.  CO., 15 F.R.D. 379, 382 (SDNY
1954).  CF. MOVIECOLOR LTD. V. EASTMAN KADOK CO., 288 F.2D 80, 88 (CA2
1961).  NOR SHOULD ZENITH BE PENALIZED FOR FAILING TO ENTER A FORMAL
PLEA OF TOLLING IN RESPONSE TO HRI'S BELATED LIMITATIONS PLEA, FOR
ZENITH CAN HARDLY BE BLAMED FOR READING THE REMARKS OF THE TRIAL JUDGE
AS A REJECTION OF THE LIMITATIONS DEFENSE ON THE GROUND OF WAIVER. 
ZENITH WAS NEVER UNAMBIGUOUSLY CALLED UPON TO SUBMIT A FORMAL PLEA; TO
HOLD UNDER SUCH CIRCUMSTANCES THAT WANT OF A SUBMISSION AMOUNTS TO A
WAIVER WOULD BE TO TREAT PLEADING AS "A GAME OF SKILL IN WHICH ONE
MISSTEP BY COUNSEL MAY BE DECISIVE TO THE OUTCOME"-- AN APPROACH WE
HAVE CONSISTENTLY REJECTED.  SEE FORMAN V. DAVIS, SUPRA, AT 181-182;
UNITED STATES V. HOUGHAM, 364 U.S. 310, 317 (1960); CONLEY V. GIBSON,
355 U.S. 41, 48 (1957).  THE INTERESTS OF JUSTICE THUS CLEARLY REQUIRE
THAT IF HRI'S LIMITATIONS DEFENSE IS TO BE CONSIDERED ON ITS MERITS,
ZENITH'S CLAIM OF TOLLING MUST BE DEALT WITH AS WELL. 

THE COURT OF APPEALS DID, IN FACT, CONSIDER THE TOLLING ISSUE ON THE
MERITS, BUT CONCLUDED THAT TOLLING TAKES PLACE ONLY WITH RESPECT TO
PARTIES TO A GOVERNMENT SUIT AND HENCE THAT TOLLING DID NOT OCCUR HERE
BECAUSE HRI WAS NOT SUCH A PARTY.  THIS WAS ERROR.  THE LANGUAGE OF 15
U.S.C. 16(B) EXPRESSLY PROVIDES FOR TOLLING OF THE STATUTE OF
LIMITATIONS "IN RESPECT OF EVERY PRIVATE RIGHT OF ACTION . . . BASED IN
WHOLE OR IN PART ON ANY MATTER COMPLAINED OF" IN THE PROCEEDING
INSTITUTED BY THE GOVERNMENT.  (EMPHASIS ADDED.)  ON THE FACE OF THIS
THE GOVERNMENT HAS ALREADY BROUGHT SUIT IS UNDENIABLY BASING ITS CLAIM
IN WHOLE OR IN PART UPON THE MATTER COMPLAINED OF IN THE GOVERNMENT
SUIT, EVEN IF THE DEFENDANT NAMED IN THE PRIVATE SUIT WAS NAMED NEITHER
AS A DEFENDANT NOR AS A COCONSPIRATOR BY THE GOVERNMENT.  IF, THAT IS,
THE GOVERNMENT SUES ONLY CERTAIN CONSPIRATORS, THE FACT OF THE TOLLING
OF THE STATUTE AGAINST THOSE SO PROVED BUT NOT SUED CAN HARDLY BE
DENIED.  NOR COULD TOLLING BE DENIED IF A DEFENDANT HAD NEVER BEEN
SHOWN TO BE A CONSPIRATOR BY THE EVIDENCE OFFERED IN THE EARLIER
GOVERNMENT SUIT, BUT THEN HAD BEEN PROVED TO BE SUCH IN THE SUBSEQUENT
PRIVATE SUIT. 

WE FIND NO INDICATION IN THE LEGISLATIVE HISTORY OF SEC. 16(B) THAT
CONGRESS INTENDED IT TO TOLL THE STATUTE OF LIMITATIONS ONLY AGAINST
PARTIES DEFENDANT IN THE GOVERNMENT ACTION.  NOR IS ANYTHING CITED TO
US IN THIS RESPECT.  /7/  ON THE CONTRARY, AS WE HAVE SAID EARLIER,
CONGRESS, BELIEVING THAT "PRIVATE ANTITRUST LITIGATION IS ONE OF THE
SUREST WEAPONS FOR EFFECTIVE ENFORCEMENT OF THE ANTITRUST LAWS,"
ENACTED SEC. 16(B) IN ORDER TO "ASSIST PRIVATE LITIGANTS IN UTILIZING
ANY BENEFITS THEY MIGHT CULL FROM GOVERNMENT ANTITRUST ACTIONS." 
MINNESOTA MINING & MFG. CO. V. NEW JERSEY WOOD FINISHING CO., 381 U.S.
311, 317-318 (1965).  WE SEE NOTHING DESTRUCTIVE OF CONGRESS' PURPOSE
IN HOLDING THAT SEC. 16(B) TOLLS THE STATUTE OF LIMITATIONS AGAINST ALL
PARTICIPANTS IN A CONSPIRACY WHICH IS THE OBJECT OF A GOVERNMENT SUIT,
WHETHER OR NOT THEY ARE NAMED AS DEFENDANTS OR CONSPIRATORS THEREIN;
INDEED, TO SO HOLD MATERIALLY FURTHERS CONGRESSIONAL POLICY BY
PERMITTING PRIVATE LITIGANTS TO AWAIT THE OUT COME OF GOVERNMENT SUITS
AND USE THE BENEFITS ACCRUING THEREFROM. 

IT IS TRUE THAT THE LOWER FEDERAL COURTS HAVE UNTIL RECENTLY
CONFINED THE OPERATION OF THE SECTION AND HELD IT APPLICABLE ONLY TO
DEFENDANTS NAMED IN THE GOVERNMENT SUIT.  SEE, E.G., SUN THEATRE CORP.
V. RKO RADIO PICTURES, INC., 213 F.2D 284, 290-292 (CA7 1954); MOMAND
V. UNIVERSAL FILM EXCHANGES, INC., 172 F.2D 37, 48 (CA1 1948).  BUT
THESE CASES AND OTHER LIKE THEM, AS WE HAVE INDICATED, FLY IN THE FACY
OF THE LANGUAGE OF THE STATUTE, ARE ANTITHETICAL TO ITS AIMS, AND
CANNOT BE SQUARED WITH OUR RECENT DECISIONS IN MINNESOTA MINING & MFG.
CO. V. NEW JERSEY WOOD FINISHING CO., SUPRA, AND LEH V. GENERAL
PETROLEUM CORP., 382 U.S. 65 (1965).  MINNESOTA MINING HELD THAT SEC.
16(B)'S TOLLING PROVISION WAS NOT CONFINED TO THOSE SITUATIONS IN WHICH
A GOVERNMENT DECREE, BY VIRTUE OF SEC. 16(A), WOULD BE PRIMA FACIE
EVIDENCE AGAINST DEFENDANTS IN A PRIVATE SUIT WHO HAD ALSO BEEN NAMED
AS DEFENDANTS IN A PRIVATE SUIT WHO HAD ALSO BEEN NAMED AS DEFENDANTS
IN A GOVERNMENT SUIT.  IT REJECTED THE VIEW THAT SECS. 16(A) AND 16(B)
ARE WHOLLY INTERDEPENDENT AND COEXTENSIVE; ON THE CONTRARY, SEC. 16(B)
WAS GIVEN ITS FULL SWEEP.  LEH, FOLLOWING MINNESOTA MINING, HELD THAT A
PRIVATE LITIGANT WAS ENTITLED TO THE BENEFIT OF TOLLING ALTHOUGH THE
CONSPIRACY HE ALLEGED COVERED A DIFFERENT TIME, NAMED ADDITIONAL
PARTIES, AND EXCLUDED SOME PARTIES NAMED IN THE PRIOR GOVERNMENT SUIT. 
WHILE LEH DID NOT EXPLICITLY DECIDE WHETHER THE STATUTE WOULD BE TOLLED
WHEN THE SOLE DEFENDANT IN A PRIVATE ACTION COVERING THE SAME GROUND AS
AN EARLIER GOVERNMENT SUIT HAD BEEN NAMED NEITHER AS A CONSPIRATOR NOR
AS A PARTY IN THE GOVERNMENT SUIT, WE DO NOT BELIEVE THAT SUCH A CASE
COULD BE DISTINGUISHED FROM LEH.  CASES IN THE LOWER FEDERAL COURTS
SINCE LEH HAVE ALSO COME TO THIS CONCLUSION.  SEE NEW JERSEY V. MORTON
SALT CO., 387 F.2D 94 (CA3 1967); VERMONT V. CAYUGA ROCK SALT CO., 276
F.SUPP.  970 (ME. 1967); MICHIGAN V. MORTON SALT CO., 259 F.SUPP.  35,
53-56 (MINN. 1966), AFF'D SUB NOM.  HARDY SALT CO. V. ILLINOIS, 377
F.2D 768 (CA8 (1967). 

WE THEREFORE HOLD THAT ZENITH, ALTHOUGH SUING HRI, WHICH WAS NAMED
NEITHER AS A PARTY NOR AS A COCONSPIRATOR IN THE GOVERNMENT SUIT, IS
NOT BARRED FROM OBTAINING THE BENEFITS OF THE TOLLING STATUTE, SINCE IT
IS UNDISPUTED THAT THE CONSPIRACY IN WHICH HRI PARTICIPATED WAS AT
LEAST IN PART THE SAME CONSPIRACY AS WAS THE OBJECT OF THE GOVERNMENT'S
SUIT.  FROM THIS IT FOLLOWS THAT THE ONLY ISSUE STILL REMAINING UPON
HRI'S LIMITATIONS CLAIM IS WHETHER ZENITH CAN RECOVER IN ITS 1963 SUIT
FOR DAMAGES SUFFERED AFTER JUNE 1, 1959, AS THE CONSEQUENCE OF PRE-1954
CONSPIRATORIAL CONDUCT. 

        B 

THE BASIC RULE IS THAT DAMAGES ARE RECOVERABLE UNDER THE FEDERAL
ANTITRUST ACTS ONLY IF SUIT THEREFOR IS "COMMENCED WITHIN FOUR YEARS
AFTER THE CAUSE OF ACTION ACCRUED," 15 U.S.C. 15B, PLUS ANY ADDITIONAL
NUMBER OF YEARS DURING WHICH THE STATUTE OF LIMITATIONS WAS TOLLED. 
GENERALLY, A CAUSE OF ACTION ACCRUES AND THE STATUTE BEGINS TO RUN WHEN
A DEFENDANT COMMITS AN ACT THAT INJURES A PLAINTIFF'S BUSINESS.  SEE,
E.G., SUCKOW BORAX MINES CONSOLIDATED, INC. V. BORAX CONSOLIDATED,
LTD., 185 F.2D 196, 208 (CA9 1950); BLUEFIELDS S.S. CO. V. UNITED FRUIT
CO., 243 F.1, 20 (CA3 1917), APPEAL DISMISSED, 248 U.S. 595 (1919);
2361 STATE CORP. V. SEALY, INC., 263 F.SUPP.  845, 850 (ND ILL. 1967). 
THIS MUCH IS PLAIN FROM THE TREBLE-DAMAGE STATUTE ITSELF.  15 U.S.C.
15.  IN THE CONTEXT OF A CONTINUING CONSPIRACY TO VIOLATE THE ANTITRUST
LAWS, SUCH AS THE CONSPIRACY IN THE INSTANT CASE, THIS HAS USUALLY BEEN
UNDERSTOOD TO MEAN THAT EACH TIME A PLAINTIFF IS INJURED BY AN ACT OF
THE DEFENDANTS A CAUSE OF ACTION ACCRUES TO HIM TO RECOVER THE DAMAGES
CAUSED BY THAT ACT AND THAT, AS TO THOSE DAMAGES, THE STATUTE OF
LIMITATIONS RUNS FROM THE COMMISSION OF THE ACT. SEE, E.G., CRUMMER CO.
V. DU PONT, 223 F.2D 238, 247-248 (CA5 1955); DELTA THEATERS, INC. V.
PARAMOUNT PICTURES, INC., 158 F.SUPP.  644, 648 (ED LA. 1958); MOMAND
V. UNIVERSAL FILM EXCHANGE, INC., 43 F.SUPP.  996, 1006 (MASS. 1942),
AFF'D, 172 F.2D,AT 49.  HOWEVER, EACH SEPARATE CAUSE OF ACTION THAT SO
ACCRUES ENTITLES A PLAINTIFF TO RECOVER NOT ONLY THOSE DAMAGES WHICH HE
HAS SUFFERED AT THE DATE OF ACCRUAL, BUT ALSO THOSE WHICH HE WILL
SUFFER IN THE FUTURE FROM THE PARTICULAR INVASION, INCLUDING WHAT HE
HAS SUFFERED DURING AND WILL PREDICTABLY SUFFER AFTER TRIAL.  SEE,
E.G., FARBENFABRIKEN BAYER, A.G. V. STERLING DRUG, INC., 153 F.SUPP. 
589, 593 (NJ 1957); MOMAND V. UNIVERSAL FILM EXCHANGE, INC., SUPRA, AT
1006.  CF. LAWLOR V. LOEWE, 235 U.S. 522, 536 (1915).  THUS, IF A
PLAINTIFF FEELS THE ADVERSE IMPACT OF AN ANTITRUST CONSPIRACY ON A
PARTICULAR DATE, A CAUSE OF ACTION IMMEDIATELY ACCRUES TO HIM TO
RECOVER ALL DAMAGES INCURRED BY THAT DATE AND ALL PROVABLE DAMAGES THAT
WILL FLOW IN THE FUTURE FROM THE ACTS OF THE CONSPIRATORS ON THAT
DATE.  TO RECOVER THOSE DAMAGES, HE ACCRUAL OF THE ACTION.  ON THE
OTHER HAND, IT IS HORNBOOK LAW, IN ANTITRUST ACTIONS AS IN OTHERS, THAT
EVEN IF INJURY AND A CAUSE OF ACTION HAVE ACCRUED AS OF A CERTAIN DATE,
FUTURE DAMAGES THAT MIGHT ARISE FROM THE CONDUCT SUED ON ARE
UNRECOVERABLE IF THE FACT OF THEIR ACCRUAL IS SPECULATIVE OR THEIR
AMOUNT AND NATURE UNPROVABLE.  MOE LIGHT, INC. V. FOREMAN, 238 F.2D
817, 818 (CA6 1956); CHICAGO & N.W.R. CO. V. DE CLOW, 124 F. 142, 143
(CA8 1903); CULLEY V. PENNSYLVANIA R. CO., 244 F.SUPP.  710, 715 (DEL.
1965).  CF. HOWARD V. STILLWELL & BIERCE MFG. CO., 139 U.S. 199, 206
(1891). 

IN ANTITRUST AND TREBLE-DAMAGE ACTIONS, REFUSAL TO AWARD FUTURE
PROFITS AS TOO SPECULATIVE IS EQUIVALENT TO HOLDING THAT NO CAUSE OF
ACTION HAS YET ACCRUED FOR ANY BUT THOSE DAMAGES ALREADY SUFFERED.  IN
THESE INSTANCES, THE CAUSE OF ACTION FOR FUTURE DAMAGES, IF THEY EVER
OCCUR, WILL ACCRUE ONLY ON THE DATE THEY ARE SUFFERED; THEREAFTER THE
PLAINTIFF MAY SUE TO RECOVER THEM AT ANY TIME WITHIN FOUR YEARS FROM
THE DATE THEY WERE INFLICTED.  CF. SCHENLEY INDUSTRIES V. N.J. WINE &
SPIRIT WHOLESALERS ASSN., 272 F.SUPP.  872, 887-888 (NJ 1967); DELTA
THEATERS, INC. V. PARAMOUNT PICTURES, INC., SUPRA, AT 648-649. 
OTHERWISE FUTURE DAMAGES THAT COULD NOT BE PROVED WITHIN FOUR YEARS OF
THE CONDUCT FROM WHICH THEY FLOWED WOULD BE FOREVER INCAPABLE OF
RECOVERY, CONTRARY TO THE CONGRESSIONAL PURPOSE THAT PRIVATE ACTIONS
SERVE "AS A BULWARK OF ANTITRUST ENFORCEMENT," PERMA LIFE MUFFLERS,
INC. V. INTERNATIONAL PARTS CORP., 392 U.S. 134, 139 (1968), AND THAT
THE ANTITRUST LAWS FULLY "PROTECT THE VICTIMS OF THE FORBIDDEN
PRACTICES AS WELL AS THE PUBLIC," RADOVICH V. NATIONAL FOOTBALL LEAGUE,
352 U.S. 445, 454 (1957).  SEE ALSO LAWLOR V. NATIONAL SCREEN SERV.
CORP., 349 U.S. 322, 329 (1955). 

AS WE HAVE ALREADY SEEN, ACCEPTANCE OF ZENITH'S TOLLING ARGUMENT
REQUIRES FURTHER CONSIDERATION ONLY OF THAT PORTION OF ZENITH'S DAMAGES
SUFFERED DURING THE 1959-1963 PERIOD AS A RESULT OF PRE-1954, FOR IF IT
COULD NOT, IT WOULD FOLLOW FOR THE REASONS STATED ABOVE THAT IT MUST BE
PERMITTED TO RECOVER THEM NOW. 

WE DO NOT, OF COURSE, HAVE THE THINKING OF THE DISTRICT JUDGE ON
THIS ISSUE, AND ORDINARILY THE MATTER OF FUTURE DAMAGES WOULD VERY MUCH
DEPEND ON HIS INFORMED DISCRETION.  /8/  BUT WE ARE RELUCTANT TO RETURN
ANY ISSUE IN THIS LITIGATION FOR ANOTHER ROUND OF PROCEEDINGS IN THE
TRIAL OR APPELLATE COURTS IF WE CAN FAIRLY DISPOSE OF IT AT THIS
JUNCTURE.  AFTER DUE CONSIDERATION, WE HAVE DETERMINED THAT IN THE
CIRCUMSTANCES OF THIS CASE, SEC. 15B WAS NO BAR TO ANY PART OF THE
DAMAGES AWARDED ZENITH BY THE DISTRICT COURT INSOFAR AS THE CANADIAN
MARKET WAS CONCERNED. 

LET US ASSUME THAT ZENITH IN A TREBLE-DAMAGE SUIT BROUGHT IN 1954
HAD PRESENTED EVIDENCE SIMILAR TO THAT WHICH IT PRESENTED IN THE
INSTANT SUIT, INDICATING THAT IT WOULD HAVE HAD THE SAME SHARE OF A
FREE CANADIAN MARKET AS IT DID IN THE UNITED STATES MARKET.  ASSUME
ALSO THAT IT HAD PRESENTED EVIDENCE TO THE EFFECT THAT, STARTING IN
1954, WHEN IT HAD NO SALES IN THE CANADIAN MARKET, IT WOULD HAVE TAKEN
10 YEARS TO REACH THAT SHARE IN A FREE MARKET.  GIVEN SUCH EVIDENCE,
THE QUESTION WOULD BE WHETHER A DISTRICT COURT WOULD HAVE PERMITTED
ZENITH TO RECOVER ESTIMATED PROFITS UPON 90% OF ITS SHARE OF THE
HYPOTHETICAL FREE CANADIAN MARKET FOR ITS ANTICIPATED LOSSES IN 1955,
80% FOR ITS LOSSES IN 1956, AND 70% FOR ITS 1957 LOSSES, AND SO ON. 
/9/ 

WE FIND IT DIFFICULT TO BELIEVE THAT ZENITH COULD HAVE CONVINCED A
DISTRICT COURT SITTING IN 1954 THAT, ALTHOUGH IT CONTEMPLATED A FREE
MARKET FROM THAT TIME FORWARD, IT WOULD STILL BE SUFFERING FROM
PROVABLE INJURY FORWARD, IT WOULD STILL BE SUFFERING FROM PROVABLE
INJURY MORE THAN FIVE YEARS LATER.  IT IS TRUE THAT THE DAMAGES AWARDED
ZENITH IN THIS CASE WERE BASED ON ESTIMATES OF ITS VOLUME OF BUSINESS
IN A FREE MARKET.  BUT THOSE ESTIMATES WERE FOR A PAST PERIOD OF TIME;
THE SIZE AND CONDITIONS IN THE MARKET WERE KNOWN AND THE COMPETITIVE
FORCES WERE IDENTIFIABLE.  ZENITH'S PERFORMANCE DURING THE SAME PERIOD
AND UNDER COMPARABLE CONDITIONS WAS A MATTER OF RECORD.  IT IS QUITE
ANOTHER MATTER TO PREDICT MARKET CONDITIONS AND THE PERFORMANCE OF ONE
COMPETITOR IN THAT MARKET FIVE TO 10 YEARS HENCE.  THE PROCEEDINGS
BEFORE US PUT IN STARK RELIEF THE DIFFICULTIES OF PROVING THE FACT AND
THE AMOUNT OF DAMAGE WOULD HAVE PROBABLY GOTTEN SHORT SHRIFT IN THE
LOWER COURTS IF THEY HAD BEEN PRESSED IN THIS CASE.  IN OUR VIEW, THIS
IS THE VERY TREATMENT SUCH CLAIMS WOULD HAVE RECEIVED HAD ZENITH SUED
IN 1954, AND CLAIMED DAMAGES FOR THE DECADE OF THE SIXTIES.  THE SHORT
OF IT IS THAT ZENITH ASSERTED ITS CAUSE OF ACTION FOR 1959-1963 DAMAGES
WELL WITHIN THE PERIOD DURING WHICH SEC. 15B ENTITLED IT TO SUE. 

III 

ENTIRELY APART FROM ITS STATUTE OF LIMITATIONS DEFENSE, HRI CLAIMS
THAT WHATEVER PART OF THE 1959-1963 DAMAGES WAS CAUSED BY
CONSPIRATORIAL CONDUCT PRIOR TO 1957 IS UNRECOVERABLE BECAUSE OF A
RELEASE EXECUTED IN THAT YEAR BY ZENITH IN SETTLEMENT OF AN ANTITRUST
ACTION AGAINST OTHER COCONSPIRATORS IN THE CANADIAN PATENT POOL.  /10/
THE RELEASE EXTENDED NOT ONLY TO PAST BUT ALSO TO ALL FUTURE DAMAGES
ARISING OUT OF PRE-1957 CONSPIRATORIAL ACTS.  HOWEVER, WHILE IT WAS A
COCONSPIRATOR IN THE CANADIAN POOL, HRI WAS NEITHER A PARTY TO THE 1957
SUIT NOR A PARTY TO THE RELEASE, NOR WAS IT NAMED IN THE RELEASE AS ONE
OF THE PARTIES AFFECTED THEREBY.  NONETHELESS, THE COURT OF APPEALS
HELD HRI ENTITLED TO THE BENEFITS OF THE RELEASE ON THE GROUND THAT
ZENITH HAD FAILED EXPRESSLY TO RESERVE ANY RIGHTS AGAINST HRI, AND IT
THEREFORE REMANDED THE CASE TO THE DISTRICT COURT WITH DIRECTIONS TO
EXCLUDE FROM THE JUDGMENT ANY DAMAGES CAUSED BY PRE-1957 CONDUCT.  WE
AGAIN CONCLUDE THAT THE COURT OF APPEALS ERRED. 

THREE RULES HAVE DEVELOPED TO DEAL WITH THE QUESTION WHETHER THE
RELEASE OF ONE JOINT TORTFEASOR RELEASES OTHER TORTFEASORS WHO ARE NOT
PARTIES TO OR NAMED IN THE RELEASE.  THE ANCIENT COMMON-LAW RULE, WHICH
WAS GROUNDED UPON A FORMALISTIC DOCTRINE THAT A RELEASE EXTINGUISHED
THE CAUSE OF ACTION TO WHICH IT RELATED, WAS THAT A RELEASE OF ONE
JOINT TORTFEASOR RELEASED ALL OTHER PARTIES JOINTLY LIABLE, REGARDLESS
OF THE INTENT OF THE PARTIES.  SEE, E.G., WESTERN EXPRESS CO. V.
SMELTZER, 88 F.2D 94, 95 (CA6 1937); AMERICAN RY. EXPRESS CO. V. STONE,
27 F.2D 8, 10 (CA1 1928); BARRETT V. THIRD AVENUE R. CO., 45 N.Y. 628,
635 (1871); ELLIS V. ESSON, 50 WIS. 138, 146, 6 N.W. 518, 519 (1880). 
WHILE THIS COURT HAS REFERRED TO THIS RULE IN CASES WHERE THE RIGHTS OF
THE LITIGANTS WERE CONTROLLED BY STATE OR FEDERAL COMMON LAW, SEE
CHICAGO & ALTON R. CO. V. WAGNER, 239 U.S. 452, 456-457 (1915); UNITED
STATES V. PRICE, 9 HOW.  83, 92 (1850); HUNT V. RHODES, 1 PET. 1, 16
(1828); WE ARE CITED TO NO CASE WHERE WE HAVE APPLIED THE RULE TO A
STATUTORY CAUSE OF ACTION CREATED UNDER FEDERAL LAW.  INDEED, WE HAVE
EXPRESSLY REPUDIATED THE RULE.  SEE ARO MRG.  CO. V. CONVERTIBLE TOP
CO., 377 U.S. 476, 501 (1964).  CF. BIRDSELL V. SHALIOL, 112 U.S. 485,
489 (1884).  MOREOVER, IN THE LOWER FEDERAL COURTS, CAUSES OF ACTION
BASED UPON FEDERAL STATUTES HAVE GENERALLY BEEN GOVERNED BY ONE OF THE
OTHER TWO RULES.  THE FIRST OF THESE RULES PROVIDES THAT, ALTHOUGH A
RELEASE OF ONE COCONSPIRATOR NORMALLY RELEASES ALL OTHERS, IT WILL NOT
HAVE SUCH AN EFFECT IF A PLAINTIFF EXPRESSLY RESERVES HIS RIGHTS
AGAINST THE OTHERS.  THIS RULE, WHICH HAS BEEN ADOPTED WITH SOME
VARIATION BY STATUTE IN 21 STATES, /11/  BY JUDICIAL DECISION IN
OTHERS, SEE, E.G., MCKENNA V. AUSTIN, 77 U.S.APP.D.C. 228, 233-234, 134
F.2D 659, 664-665 (1943) (ANNOUNCING D.C. LAW); RILEY V. INDUSTRIAL
FINANCE SERVICE CO., 157 TEX. 306, 311, 302 S.W.2D 652, 655 (1957); AND
BY THE FIRST RESTATEMENT, SEE RESTATEMENT, TORTS SEC. 885(1) (1939);
HAS BEEN APPLIED IN A NUMBER OF ANTITRUST CASES.  SEE, E.G., MIAMI
PARTS & SPRING, INC. V. CHAMPION SPARK PLUG CO., 402 F.2D 83, 84 (CA5
1968); TWENTIETH CENTURY-FOX FILM CORP. V. WINCHESTER DRIVE-IN
TEHEATRE, INC., 351 F.2D 925, 931 (CA9 1965); DURA ELECTRIC LAMP CO. V.
WESTINGHOUSE ELECTRIC CORP., 249 F.2D 5, 6-7 (CA3 1957).  IT WAS THIS
RULE THAT THE COURT OF APPEALS FOLLOWED IN THE OPINION BELOW.  A FINAL
RULE, WHICH HAS GAINED SUPPORT IN SEVERAL RECENT DECISIONS AND BEEN
ADOPTED BY THE AMERICAN LAW INSTITUTE IN A TENTATIVE DRAFT OF THE
SECOND RESTATEMENT OF TORTS, PROVIDES THAT THE EFFECT OF A RELEASE UPON
COCONSPIRATORS SHALL BE DETERMINED IN ACCORDANCE WITH THE INTENTIONS OF
THE PARTIES.  SEE WINCHESTER DRIVE-IN THEATRE, INC. V. TWENTIETH
CENTURY-FOX FILM CO., 232 F.SUPP.  556, 561-563 (ND CAL. 1964), REV'D,
TWENTIETH CENTURY-FOX FILM CORP. V. WINCHESTER DRIVE-IN THEATRE, INC.,
SUPRA; YOUNG V. STATE, 455 P.2D 889 (ALASKA, 1969); BREEN V. PECK, 28
N.J. 351, 146 A.2D 665 (1958); RESTATEMENT (SECOND), TORTS SEC. 885(1)
(TENT.  DRAFT NO. 16, 1970); 12 VAND.L.REV.  1414, 1416-1417 (1959). 

WE RECENTLY ADOPTED THE FINAL RULE GIVING EFFECT TO THE INTENTIONS
OF THE PARTIES IN ARO MFG. CO. V. CONVERTIBLE TOP CO., SUPRA, A PATENT
INFRINGEMENT CASE.  THE AGREEMENT IN THAT CASE EXPRESSLY PROVIDED FOR
THE RELEASE OF "FORD, ITS ASSOCIATED COMPANIES . . . (AND) ITS AND
THEIR DEALERS, CUSTOMERS AND USERS OF ITS AND THEIR PRODUCTS" FROM ALL
PAST AND FUTURE INFRINGEMENT CLAIMS.  377 U.S.,AT 493.  THE DOCUMENT,
HOWEVER, DID NOT EXPRESSLY RESERVE THE RELEASOR'S RIGHTS AGAINST
ANYONE.  THE ISSUE IN THE CASE WAS WHETHER ARO, A CONTRIBUTORY
INFRINGER WHICH DID NOT FIT WITHIN ANY OF THE SPECIAL CATEGORIES
ENUMERATED IN THE RELEASE, WAS NONETHELESS LEABLE FOR ITS PAST
CONTRIBUTION TO INFRINGEMENTS.  THE DISTRICT COURT HAD FOUND THAT THE
PARTIES HAD NOT INTENDED TO RELEASE CONTRIBUTORY INFRINGERS SUCH AS
ARO, AND, DESPITE THE ABSENCE OF AN EXPRESS RESERVATION OF RIGHTS
AGAINST SUCH INFRINGERS, WE ACCORDINGLY HELD THAT ARO WAS NOT ENTITLED
TO BENEFIT FROM THE RELEASE.  WE CONCLUDED THAT A RELEASE, "WHICH
CLEARLY INTENDS TO SAVE THE RELEASOR'S RIGHTS AGAINST A PAST
CONTRIBUTORY INFRINGER, DOES NOT AUTOMATICALLY SURRENDER THOSE
RIGHTS."  ID., AT 501. 

WE PERCEIVE NO REASON TO FOLLOW A DIFFERENT RULE IN ANTITRUST
LITIGATION.  INDEED, OF THE THREE AVAILABLE RULES, THE RULE ADOPTED IN
ARO IS MOST CONSISTENT WITH THE AIMS AND PURPOSES OF THE TREBLE-DAMAGE
REMEDY UNDER THE ANTITRUST LAWS.  WE MUST KEEP IN MIND THE MULTISTATE
AND MULTIPARTY CHARACTER OF MUCH PRIVATE ANTITRUST LITIGATION; OFTEN,
DEFENDANTS WHO HAVE CONSPIRED TOGETHER MUST BE SUED IN A NUMBER OF
DIFFERENT STATES IF ALL ARE TO BE REACHED, AND, WHILE DEFENDANTS IN
SOME STATES MAY BE WILLING TO ENTER INTO SETTLEMENTS, DEFENDANTS IN
OTHER MAY NOT.  TO ADOPT THE ANCIENT COMMON-LAW RULE WOULD FRUSTRATE
SUCH PARTIAL SETTLEMENTS, AND THEREBY PROMOTE LITIGATION, WHILE
ADOPTION OF THE FIRST RESTATEMENT RULE WOULD CREATE A TRAP FOR UNWARY
PLAINTIFFS'  ATTORNEYS.  THE STRAIGHTFORWARD RULE IS THAT A PARTY
RELEASES ONLY THOSE OTHER PARTIES WHOM HE INTENDS TO RELEASE.  OUR
CONCLSUION THAT THIS IS THE APPROPRIATE RULE FOR GIVING EFFECT TO
RELEASES UNDER THE ANTITRUST LAWS IS FURTHER BUTTRESSED BY THE
RESTATEMENT'S ABANDONMENT IN A TENTATIVE DRAFT OF THE RULE REQUIRING
EXPRESS RESERVATION OF RIGHTS IN ORDER TO SAVE THEM, AND ITS ADOPTION
OF THE RULE TO WHICH WE ADHERE.  SEE RESTATEMENT (SECOND), TORTS SEC.
885, COMMENTS AND (TENT.  DRAFT NO. 16, 1970). 

THE INTENTION OF THE PARTIES TO THE 1957 RELEASE IS ABSOLUTELY CLEAR
FROM THE CONTRACT MADE PRIOR THERETO IN WHICH THEY AGREED TO EXCHANGE
RELEASES.  /12/  THAT CONTRACT EXPRESSLY PROVIDED FOR RELEASES "TO BIND
OR BENEFIT" THE PARTY AND "THE PARTENT AND SUBSIDIARIES OF THE PARTY
GIVING OR RECEIVING SUCH RELEASE ('SUBSIDIARIES' TO INCLUDE
CORPORATIONS IN WHICH THE PARTY HAS STOCK OWNERSHIP OF 50% OR MORE)." 
/13/  WE ACCORDINGLY HAVE NO HESITANCY IN HOLDING THAT HRI, WHICH WAS
NEITHER A PARTY TO THE 1957 RELEASE NOR A PARENT OR SUBSIDIARY OF A
PARTY, IS NOT NOW ENTITLED TO THE BENEFITS OF THAT RELEASE. 

OF COURSE, TO THE EXTENT THAT THE $10,000,000 SETTLEMENT WHICH
ZENITH RECEIVED IN RETURN FOR THE 1957 RELEASE WAS UNDERSTOOD BY THE
PARTIES TO PROVIDE COMPENSATION FOR FUTURE DAMAGES THAT ZENITH
ANTICIPATED IT WOULD SUFFER DURING 1959-1963 AS A RESULT OF THE PRE
1957 CONDUCT OF THE CANADIAN POOL, HRI WOULD HAVE AVAILABLE TO IT A
DEFENSE OF PAYMENT, FOR IT IS BEING ORDERED BY THE DISTRICT COURT TO
MAKE FULL PAYMENT FOR ALL THE 1959-1963 DAMAGES INFLICTED BY ALL THE
MEMBERS OF THE POOL.  IT IS SETTLED THAT, ENTIRELY APART FROM ANY
RELEASE, A PLAINTIFF WHO HAS RECOVERED ANY ITEM OF DAMAGE FROM ONE
COCONSPIRATOR MAY NOT AGAIN RECOVER THE SAME ITEM FROM ANOTHER
CONSPIRATOR; THE LAW, THAT IS, DOES NOT PERMIT A PLAINTIFF TO RECOVER
DOUBLE PAYMENT.  SEE ARO MFG. CO. V. CONVERTIBLE TOP CO., SUPRA, AT 502
503 (PLURALITY VIEW); MCKENNA V. AUSTIN, SUPRA, AT 234, 134 F.2D,AT
665; RESTATEMENT, TORTS SEC. 885(3) (1939); W. PROSSER, TORTS SEC. 46
(3D ED. 1964).  HOWEVER, THE RECORD BELOW INDICATES THAT A DEFENSE OF
PAYMENT COULD NOT HERE BE SUSTAINED FOR, WHILE THE 1957 RELEASE DID
EXTEND TO FUTURE DAMAGES, THE UNDISPUTED AND UNIMPEACHED TESTIMONY OF
ZENITH'S WITNESSES WAS THAT THE $10,000,000 SETTLEMENT WAS UNDERSTOOD
BY THE PARTIES AS COMPENSATION ONLY FOR ZENITH'S DAMAGES UP TO THE DATE
OF THE RELEASE.  THUS, IT IS NOT SURPRISING THAT, ALTHOUGH HRI DID
ADVANCE A CLAIM OF PAYMENT UPON ITS POST-TRIAL MOTION IN THE DISTRICT
COURT, IT HAS MADE NO SUCH ARGUMENT IN THIS COURT.  SINCE THE CLAIM WAS
UNTIMELY PRESENTED BELOW, WAS NOT PRESSED HERE, AND IS NOT SUSTAINABLE
ON THE FACTS CONTAINED IN THE RECORD, WE SEE NO BASIS FOR ITS FURTHER
CONSIDERATION. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED, WITH INSTRUCTIONS THAT THE COURT OF APPEALS REINSTATE THE
JUDGMENT OF THE DISTRICT COURT WITH RESPECT TO THE CANADIAN MARKET. 

/1/  IT IS TRUE THAT IN ITS MOTION FOR LEAVE TO FILE ITS
COUNTERCLAIM, ZENITH STATED THAT THE COUNTERCLAIM AROSE OUT OF CONDUCT
OF HRI "OCCURRING SINCE THE FILING OF THE ANSWER" IN 1960.  ON THE
BASIS OF THIS STATEMENT, HRI ARGUES THAT ZENITH PRECLUDED ITSELF FROM
RECOVERING DAMAGES RESULTING FROM PRE-ANSWER CONDUCT.  THIS ARGUMENT IS
NOT PERSUASIVE.  THE COUNTERCLAIM ITSELF WAS NOT SO LIMITED, AND ZENITH
MADE ITS POSITION ON DAMAGES ABSOLUTELY CLEAR BY THE OPENING OF TRIAL. 
HRI WAS THEREBY GIVEN BOTH AMPLE NOTICE OF THE SUBSTANCE OF ZENITH'S
CLAIM AND AMPLE OPPORTUNITY TO RESPOND, BUT MADE NO EFFORT DURING TRIAL
TO DO SO. 

/2/  ZENITH SIMILARLY LIMITED ITS CLAIM FOR DAMAGES IN THE ENGLISH
AND AUSTRAILIAN MARKETS TO THE YEARS 1959-1963 AND SIMILARLY SOUGHT TO
RECOVER ALL DAMAGES SUFFERED IN THOSE YEARS WITHOUT REGARD TO THE DATE
OF THE CONDUCT CAUSING THE DAMAGES.  HRI AGAIN DID NOT PLEAD OR ARGUE
THAT ZENITH WAS NOT ENTITLED TO ITS FULL DAMAGES DURING THOSE YEARS IN
THE TWO MARKETS, UNTIL IT MOVED AFTER TRIAL TO SET ASIDE THE JUDGE'S
FINDINGS AND TO REOPEN THE PROOF SO THAT IT COULD SHOW THAT ZENITH'S
EXCLUSION FROM THE MARKETS PRIOR TO 1959 WAS A CONSEQUENCE OF
GOVERNMENTAL RESTRICTIONS AND TECHNICAL DIFFICULTIES RATHER THAN OF
POOL CONDUCT. 

/3/  THE DISTRICT COURT GAVE HRI FIVE DAYS TO FILE ITS AMENDMENTS TO
THE PLEADINGS "NUNC PRO TUNC AS OF" THE DATE OF THE ARGUMENT ON HRI'S
MOTION.  AS A RESULT, THE DEFENSES WERE TECHNICALLY FILED PRIOR TO THE
ENTRY OF JUDGEMENT AND THE TAKING OF APPEAL, WHILE THE DISTRICT COURT
STILL RETAINED JURISDICTION OVER THE SUIT. 

/4/  AT THE TIME HRI RAISED ITS DEFENSES, THE RELEASE ON WHICH IT
RELIED WAS NOT PART OF THE RECORD, ALTHOUGH THE RECORD DID CONTAIN A
CONTRACT BETWEEN THE PARTIES TO THE RELEASE IN WHICH THEY AGREED TO
EXCHANGE RELEASES, AND FREQUENT REFERENCE HAD BEEN MADE DURING TRIAL TO
THE SETTLEMENT OF WHICH THE EXCHANGE OF RELEASES WAS A PART.  THE
RECORD ALSO BELIED HRI'S CLAIM THAT THE CONSPIRACY HAD BEEN DORMANT
DURING 1959-1963, FOR IT CONTAINED A LETTER WRITTEN IN 1962 FROM THE
POOL TO A DISTRIBUTOR OF MOTOROLA PRODUCTS IN CANADA THREATENING
INFRINGEMENT SUITS IF HE CONTINUED TO DISTRIBUTE AMERICAN-MADE PRODUCTS
OF MOTOROLA. 

/5/  ON NOVEMBER 1, 1962, A CONSENT DECREE WAS ENTERED AGAINST THE
LAST DEFENDANT NAMED IN THE GOVERNMENT ACTION, WHICH HAD BEEN COMMENCED
ON NOVEMBER 24, 1958, THEREBY TERMINATING THAT ACTION AS TO ALL
PARTIES.  SEE BARNETT V. WARNER BROS. PICTURES DIST. CORP., 112
F.SUPP.  5, 7 (ND ILL. 1953).  FOR PURPOSES OF THE PRESENT SUIT AGAINST
HRI, WHICH WAS NOT A PARTY TO THE GOVERNMENT ACTION, THE RUNNING OF THE
STATUTE OF LIMITATIONS WAS THUS TOLLED UNTIL NOVEMBER 1, 1963-- ONE
YEAR AFTER THE ENTRY OF THE CONSENT DECREE.  SEE 15 U.S.C. 16(B). 

/6/  THE GOVERNMENT SUIT WAS UNITED STATES V. GENERAL ELECTRIC CO.,
CIVIL ACTION NO. 140-157, WHICH WAS BROUGHT IN THE SOUTHERN DISTRICT OF
NEW YORK.  THE COMPLAINT AND THE FINAL JUDGMENT WERE INTRODUCED IN
EVIDENCE IN THE PRESENT PROCEEDINGS AS PLAINTIFF'S EXHIBITS NOS. 44
47. 

/7/  HRI DOES SUGGEST THAT THE 1955 AMENDMENT OF SEC. 16, SEE 69
STAT. 283, MUST BE UNDERSTOOD AS AN INDICATION OF CONGRESS' APPROVAL OF
EARLIER CASES IN THE LOWER FEDERAL COURTS CONFINING THE OPERATION OF
SEC. 16(B) TO PARTIES DEFENDANT IN GOVERNMENT SUITS.  SEE TEXT INFRA,
THIS PAGE AND 337.  WE ARE UNPERSUADED.  HRI CAN POINT TO NO DIRECT
VOICED ANY VIEWS UPON IT; ON THE CONTRARY, IT APPEARS THAT CONGRESS
LEFT THE MATTER FOR AUTHORITATIVE RESOLUTION IN THE COURTS.  THE TRUE
THRUST OF HRI'S ARGUMENT IS THAT WE MUST FIND CONGRESSIONAL APPROVAL OF
THE EARLIER CASES IN CONGRESS' SILENCE WHENIT RE-ENACTED THE STATUTE. 
WE DID NOT TAKE SUCH AN APPROACH, HOWEVER, IN MINNESOTA MINING & MFG.
CO. V. NEW JERSEY WOOD FINISHING CO., 381 U.S. 311 (1965), AND LEH V.
GENERAL PETROLEUM CORP., 382 U.S. 54 (1965), AND WE DO NOT DO SO HERE. 

/8/  IF THE TRIAL JUDGE HAD PASSED UPON THE QUESTION, HE WELL MIGHT
HAVE CONCLUDED THAT NONE OF THE DAMAGES SUSTAINED BY ZENITH IN THE
CANADIAN MARKET BETWEEN 1959 AND 1963 WAS A CONSEQUENCE OF PRE-1954
CONSPIRATORIAL CONDUCT.  THE TRIAL JUDGE IN EFFECT FOUND THAT, AS TO
ENGLAND AND AUSTRALIA, THE EFFECTS OF CONSPIRATORIAL CONDUCT WERE NO
LONGER FELT BY ZENITH MORE THAN FOUR YEARS AFTER THE CONDUCT HAD
OCCURRED, AND THERE IS NO REASON TO INFER THAT HIS FINDINGS WOULD HAVE
BEEN DIFFERENT IN REGARD TO CANADA EITHER IN THE PRESENT SUIT OR IN A
SUIT BROUGHT IN 1954.  BUT THE TRIAL JUDGE MADE NO SUCH FINDINGS AS TO
CANADA, AND WE LACK POWER TO MAKE THEM FOR HIM. 

/9/  OF COURSE, THESE PERCENTAGES ARE PURELY HYPOTHETICAL.  THEY
REST UPON AN ASSUMPTION THAT, IF ZENITH HAD SUED IN 1954 FOR FUTURE
DAMAGES IN THE CANADIAN MARKET AND HAD CLAIMED THAT IT WOULD TAKE 10
YEARS FOR IT TO ATTAIN ITS FULL SHARE OF THAT MARKET UNDER FREE
COMPETITIVE CONDITIONS, THEN IT WOULD HAVE PROVED THAT IN 1955 IT WOULD
HAVE REACHED 10% OF THAT SHARE, IN 1956, 20%, AND SO ON.  IN EACH YEAR
IT WOULD HAVE RECOVERED DAMAGES FOR THAT PERCENTAGE OF THE SHARE WHICH
IT HAD NOT YET ATTAINED. 

/10/  THE TEXT OF THE RELEASE WAS AS FOLLOWS: 

"TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, GREETING:
KNOW YE, THAT ZENITH RADIO CORPORATION AND THE RAULAND CORPORATION,
EACH A CORPORATION ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE
LAWS OF THE STATE OF ILLINOIS, FOR AND IN CONSIDERATION OF THE SUM OF
ONE DOLLAR ($1.00) LAWFUL MONEY OF THE UNITED STATES OF AMERICA AND
OTHER GOOD AND VALUABLE CONSIDERATION, TO THEM IN HAND PAID BY * . . .
, THE RECEIPT WHEREOF IS HEREBY ACKNOWELDGED, HAVE EACH REMISED,
RELEASED AND FOREVER DISCHARGE THE SIAD * . . . AND ITS SUBSIDIARIES
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS OF AND FROM ALL, AND ALL
MANNER OF ACTION AND ACTIONS, CAUSE AND CAUSES OF ACTION, SUITS, DEBTS,
DUES, SUMS OF MONEY, ACCOUNTS, RECKONING, BONDS, BILLS, SPECIALITIES,
COVENANTS, CONTRACTS, CONTROVERSIES, AGREEMENTS, PROMISES, VARIANCES,
TRESPASSES, DAMAGES, JUDGMENTS, EXTENTS, EXECUTIONS, CLAIMS AND DEMANDS
WHATSOEVER, IN LAW, IN ADMIRALTY, OR IN EQUITY, WHICH AGAINST SAID * .
. . , RADIO CORPORATION AND THE RAULAND CORPORATION AND EACH OF THEM
EVER HAD, NOW HAS OR WHICH EACH OF THEM AND THEIR RESPECTIVE
SUBSIDIARIES, SUCCESSORS AND ASSIGNS, HEREAFTER CAN, SHALL OR MAY HAVE
FOR, UPON OR BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER FROM
THE BEGINNING OF THE WORLD TO THE DAY OF THE DATE OF THESE PRESENTS,
NOT INCLUDING HOWEVER, CLAIMS, IF ANY, FOR UNPAID BALANCES ON ANY GOODS
SOLD AND DELIVERED. 

"*INSERT 

"'RADIO CORPORATION OF AMERICA,' OF 

"'GENERAL ELECTRIC COMPANY,' OR 

"'WESTERN ELECTRIC COMPANY.' 

THIS RELEASE MAY NOT BE CHANGED ORALLY." 

/11/  THE MODEL JOINT OBLIGATIONS ACT, 9B U.L.A. 355, WHICH HAS BEEN
ADOPTED IN REGARD TO TORT CLAIMS BY FOUR STATES, IS MOST SIMILAR TO THE
RULE STATED IN THE TEXT.  IT PROVIDES THAT A RELEASE OF AN OBLIGOR
SHALL RELEASE CO-OBLIGORS TO THE FULL EXTENT OF THE OBLIGOR'S ORIGINAL
LIABILITY, SEC. 5(A), UNLESS THE AMOUNT OF THAT LIABILITY IS NOT KNOWN
TO THE OBLIGEE, SEC. 5(B), OR THE OBLIGEE EXPRESSLY RESERVES HIS RIGHTS
AGAINST THE CO-OBLIGORS.  SEC. 4.  THE FOUR STATES ADOPTING THE ACT ARE
NEVADA, NEV. REV. STAT., C. 101 (1967); NEW YORK, N.Y. GENERAL
OBLIGATIONS LAW SEC. 15-101 (1967); UTAH, UTAH CODE ANN. SECS. 15-4-1
TO 15-4-7 (1953); WISCONSIN, WIS. STAT. SECS. 113.01 TO 113.10 (1967). 

THE UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT, 9 U.L.A. 233,
REVERSES THE PRESUMPTION ARISING FROM THE ABSENCE OF AN EXPRESS
PROVISION IN THE RELEASE.  IT ENACTS THAT "(A) RELEASE BY THE INJURED
PERSON OF ONE JOINT TORTFEASOR . . . DOES NOT DISCHARGE THE OTHER
TORTFEASORS UNLESS THE RELEASE SO PROVIDES . . . ."  SEC. 4.  THE EIGHT
STATES THAT HAVE ADOPTED THE UNIFORM ACT ARE ARKANSAS, ARK. STAT. ANN.
34-1001 TO 34-1009 (1947); DELAWARE, DEL. CODE ANN., TIT. 10, 6301-6308
(1953); HAWAII, HAWAII REV. LAWS 246-10 TO 246-16 (1955); MARYLAND MD.
ANN. CODE, ART. 50, 16 TO 24 (1957); NEW MEXICO, STAT. ANN., TIT. 12,
2082-2089 (1967); RHODE ISLAND, R.I. GEN. LAWS ANN. 10-6-1 TO 10-6-11
(1956); SOUTH DAKOTA, S.D. COMP. LAWS 15-8-11 TO 15-8-22 (1967).  TWO
STATES-- MASSACHUSETTS AND NORTH DAKOTA-HAVE ADOPTED A SLIGHTLY
DIFFERENT 1955 REVISION OF THE ACT.  SEE MASS. GEN. LAWS ANN., C. 231B,
1-4 (SUPP. 1971); N.D. CENT. CODE 32-38-01 TO 32-38-04 (1960).  OTHER
STATES ADOPTING STATUTES AFFECTING THE COMMON LAW OF RELEASE ARE
ALABAMA, ALA. CODE, TIT. 7, 381 (1940); CALIFORNIA, CAL. CODE CIV.
PROC. 875-880 (SUPP. 1970); LOUISIANA, LA, CIV. CODE ANN., ART. 2203
(1952); MICHIGAN, MICH. STAT. ANN. 27A.2925 (1962); MISSOURI, MO. REV.
STAT. 537.060 (1953); MONTANA, MONT. REV. CODES ANN. 93-8108 (1964);
WEST VIRGINIA, W.VA. CODE ANN. 55-7-12 (1966).  THE STATUTES LAST
LISTED DEAL GENERALLY WITH THE CONSTRUCTION OF INSTRUMENTS IN SUIT AND
WITH THE EFFECT AND FORM OF RELEASES IN PARTICULAR. 

/12/  RESORT MAY BE HAD TO THE CONTRACT IN CONSTRUING THE RELEASE
SINCE THE PAROLE EVIDENCE RULE IS USUALLY UNDERSTOOD TO BE OPERATIVE
ONLY AS TO PARTIES TO A DOCUMENT, AND HRI HERE WAS NOT A PARTY TO THE
RELEASE.  SEE STERN V. COMMISSIONER, 137 F.2D 43, 46 (CA2 1943); O'SHEA
V. NEW YORK, C. & ST. L.R. CO., 105 F. 559, 562-563 (CA7 1901);
RESTATEMENT (SECOND), TORTS SEC. 885, COMMENT D (TENT.  DRAFT NO. 16,
1970).  SEE GENERALLY 9 J. WIGMORE, EVIDENCE SEC. 2446 (3D ED. 1940). 

/13/  THE CONTRACT PROVIDED IN RELEVANT PART: 

"1.  . . . RCA, GE AND WESTERN ELECTRIC EACH TO GRANT ZENITH AND
RAULAND, RESPECTIVELY, A GENERAL RELEASE AND ZENITH AND RAULAND EACH TO
GRANT RCA, GE AND WESTERN ELECTRIC, RESPECTIVELY, A GENERAL RELEASE,
EACH SUCH RELEASE, TO THE EXTENT EITHER PARTY MAY REQUEST, TO BIND OR
BENEFIT THE PARENT AND SUBSIDIARIES OF THE PARTY GIVING OR RECEIVING
SUCH RELEASE ('SUBSIDIARIES' TO INCLUDE CORPORATIONS IN WHICH THE PARTY
HAS STOCK OWNERSHIP OF 50% OR MORE)." 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE STEWART JOINS, CONCURRING
IN THE RESULT. 

MY REVIEW OF THE RECORD IN THIS CASE HAS LEFT ME WITH THE FIRM
CONVICTION THAT THE TRIAL JUDGE REJECTED HAZELTINE'S PROFFERED DEFENSES
OF RELEASE AND THE STATUTE OF LIMITATIONS ON THE GROUND THAT THEY WERE
TOO BELATEDLY RAISED.  I AGREE WITH THE COURT THAT SUCH A COURSE WAS
WITHIN THE TRIAL JUDGE'S SOUND DISCRETION.  I THEREFORE FIND IT
UNNECESSARY TO EXPRESS ANY VIEW ON THE REMAINING, DIFFICULT ISSUES
WHICH THE COURT DISCUSSES. 

A CONSIDERATION OF THE POSTURE OF THE CASE AT THE TIME OF THE TRIAL
JUDGE'S RULING FACILITATES AN UNDERSTANDING OF THE RECORD.  TWO YEARS
AFTER THE FILING OF ZENITH'S COUNTERCLAIM, ONE YEAR AFTER THE CLOSE OF
EVIDENCE, NINE MONTHS AFTER THE FILING OF HAZELTINE'S POST-TRIAL BRIEF,
AND TWO MONTHS AFTER THE TRIAL JUDGE HAD MADE PRELIMINARY FINDINGS OF
FACT AND CONCLUSIONS OF LAW, HAZELTINE, REPRESENTED BY NEW COUNSEL,
RAISED FOR THE FIRST TIME ITS DEFENSES OF RELEASE AND THE STATUTE OF
LIMITATIONS.  IT ALSO SOUGHT TO DISPUTE THE QUALITY AND THE SUFFICIENCY
OF THE PROOF OF DAMAGES WITH RESPECT TO THE CANADIAN MARKET, AND IT
RAISED THE ISSUE OF GOVERNMENTAL EMBARGOES IN THE ENGLISH AND
AUSTRALIAN MARKETS. 

THE DISTRICT JUDGE HEARD TWO DAYS OF ARGUMENT, COVERING NEARLY 200
PAGES OF THE APPENDIX, ON BOTH THE MERITS OF THE CONTENTIONS AND THE
EQUITY OF ALLOWING HAZELTINE TO RAISE THEM SO BELATEDLY.  THERE WERE
THREE MAIN LINKS IN THE CHAIN OF HAZELTINE'S REASONING IN SUPPORT OF
ITS CONTENTION THAT IT SHOULD BE ALLOWED THE BENEFIT OF THE RELEASE AND
THE STATUTE OF LIMITATIONS.  FIRST, THE DEFENSES WERE MERITORIOUS AND
WOULD BAR A LARGE PORTION OF THE ENORMOUS POTENTIAL RECOVERY.  SECOND,
HAZELTINE'S LATENESS IN RAISING THE DEFENSES SHOULD BE EXCUSED BECAUSE
ZENITH'S COUNTERCLAIM AND SUPPROTING AFFIDAVIT GAVE NO NOTICE THAT
ZENITH INTENDED TO RELY ON ANY ACTIVITIES OCCURRING BEFORE THE FILING
OF THE ANSWER IN 1961, WHICH WAS WELL WITHIN THE LIMITATION PERIOD
UNDER ANY THEORY.  THIRD, HAZELTINE SHOULD BE EXCUSED FOR FAILING TO
SPOT THE ALLEGED SHIFT IN ZENITH'S THEORY OF RECOVERY DURING THE COURSE
OF THE TRIAL BECAUSE HAZELTINE'S TRIAL COUNSEL WAS PRIMARILY A PATENT
LAWYER WHO WAS NOT COMPLETELY AT HOME IN THE ANTITRUST FIELD.  APP. 68
69, 72-74, 156-162. 

THE DISTRICT JUDGE ON AT LEAST THREE OCCASIONS OBSERVED THAT
HAZELTINE HAD BEEN PUT ON NOTICE OF ZENITH'S THEORY BY THE ALLEGATIONS
OF THE COUNTERCLAIM ITSELF AND BY THE PRETRIAL BRIEFS.  /1/  HE
REPEATEDLY COMMENTED ON TRIAL COUNSEL'S FAILURE TO RAISE THE DEFENSES
OF RELEASE AND THE STATUTE OF LIMITATIONS, /2/  AND IN THE COURSE OF
COLLOQUY MORE DIRECTLY ADDRESSED TO HAZELTINE'S OTHER CONTENTIONS HE
EMPHASIZED THE NECESSITY FOR TRIAL COUNSEL TO PREPARE HIS CASE IF THE
CLIENT WAS NOT TO SUFFER.  /3/  AFTER COUNSEL FOR ZENITH HAS PRESENTED
HIS ARGUMENT, /4/  THE DISTRICT JUDGE HEARD HAZELTINE'S REBUTTAL, APP.
223-250, WITH ONLY ONE SUBSTANTIVE QUESTION:  "YOU DO AGREE THAT THE
STATUTE OF LIMITATIONS CAN BE WAIVED.  YOU AGREE TO THAT, DON'T YOU?" 
APP. 237.     AT THE CONCLUSION OF HIS REBUTTAL ARGUMENT, HAZELTINE'S
ATTORNEY MOVED FOR LEAVE TO FILE "OUR AFFIRMATIVE DEFENSES AS A FORMAL
PLEADING OF RELEASE AND STATUTE OF LIMITATIONS," AND ALSO MOVED TO
DISMISS THE COUNTERCLAIM ON THE BASIS OF THOSE DEFENSES.  APP. 250. 
THE FOLLOWING COLLOQUY THEN OCCURRED: 

"THE COURT:  MR. MCCONNELL (ZENITH'S COUNSEL), DO YOU CARE TO

  ADDRESS YOURSELF VERY BRIEFLY TO THOSE TWO MOTIONS HE JUST MADE? 

  YOU WILL BE LIMITED TO THAT. 

     "MR. KAYSER:  SIR? 

     "THE COURT:  MR. MCCONNELL-- THE ONES THAT HAVE TO DO WITH

  SEEKING TO FILE THESE NEW PLEADINGS ON THE STATUTE OF

  LIMITATIONS. 

     "MR. MCCONNELL:  WELL, THE STATUTE OF LIMITATIONS-- THIS CASE

  IS CLEARLY DISTINGUISHABLE FROM THE EMICH CASE-- 

     "THE COURT:  ALL HE IS DOING IS ASKING LEAVE TO FILE, AND THAT

  IS THE ONLY THING I WISH TO HAVE YOU ADDRESS YOURSELF TO. 

"MR. MCCONNELL:  I THINK IT'S TOO LATE.  HE CAN MAKE IT FOR THE

  RECORD, BUT TO ACTUALLY FILE THEM IN THIS CASE, THE RECORD IS

  MADE.  THE CASE HAS BEEN CLOSED. 

     "THE COURT:  WELL, THE REOCRD WILL SHOW THAT LEAVE IS GIVEN TO

FILE THEM AT THIS TIME, AFTER PROOFS ARE CLOSED AND AFTER

  FINDINGS HAVE BEEN MADE." 

     (THE DISTRICT JUDGE THEN STATED HOW MUCH HE HAD ENJOYED THE

  ARGUMENT OF THE PAST TWO DAYS AND COMPLIMENTED COUNSEL ON THEIR

  PRESENTATIONS.) 

     "THE COURT AT THIS TIME IS PREPARED TO ENTER THE FINAL
JUDGMENT

  AND DECREE OFFERED WITH THE EXCEPTION OF . . . (THE DAMAGES

  ALLEGEDLY SUFFERED IN ENGLAND AND AUSTRALIA.)"  APP. 250-251. 

THE JUDGE THEN INDICATED THAT HE WOULD REOPEN THE RECORD TO RECEIVE
ADDITIONAL EVIDENCE WITH REGARD TO THE EMBARGOES IN ENGLAND AND
AUSTRALIA, BUT THAT THE SCOPE OF THE INQUIRY WOULD BE NARROWLY LIMITED,
AND IN PARTICULAR NO RELITIGATION OF FACTS ADDUCED AT TRIAL WOULD BE
PERMITTED.  THE JUDGE EXPLAINED, "I DO FEEL THAT IN ORDER TO SATISFY
MYSELF, IN ORDER TO DO EQUITY IN THIS MATTER, THAT I WOULD LIKE, TO THE
LIMITED EXTENT EXPRESSED, A REOPENING IN REGARD TO THE MATTERS THAT I
HAVE INDICATED THAT DO TROUBLE ME BY VIRTUE OF THE OFFERS OF PROOF THAT
HAVE BEEN MADE AND THE STATEMENTS THAT HAVE BEEN MADE IN REGARD SOLELY
TO AUSTRALIA AND ENGLAND."  APP. 252-253.  EXCEPT FOR GIVING
HAZELTINE'S COUNSEL FIVE DAYS IN WHICH TO FILE HIS AFFIRMATIVE
DEFENSES, THE JUDGE MADE NO OTHER RELEVANT COMMENTS IN RULING ON THE
MOTIONS. 

I FIND IT IMPOSSIBLE TO BELIEVE THAT THE JUDGE RULED THUS SUMMARILY
ON THE MERITS OF THE COMPLICATED ISSUES OF ANTITRUST LAW TO WHICH THIS
COURT DEVOTES 15 PRINTED PAGES.  I ALSO FIND IT HIGHLY UNLIKELY THAT,
WITHOUT A WORD OF EXPLANATION FOR DEPARTING FROM THE SENTIMENTS HE
EXPRESSED DURING ARGUMENT, THE JUDGE INTENDED TO FORGIVE HAZELTINE'S
FAILURE TO RAISE THE DEFENSES EARLIER.  TO BE SURE, HE MUST HAVE
CONSIDERED THE MERITS SUFFICIENTLY TO SATISFY HIMSELF THAT REFUSAL TO
ALLOW HAZELTINE TO RAISE THESE DEFENSES WORKED NO GROSS INEQUITY.  SEE
FED. RULE CIV. PROC. 15(A).  I REMAIN CONVINCED, HOWEVER, THAT HE
REJECTED THE DEFENSES ONLY AS UNTIMELY RAISED. 

BELIEVING THAT THE COURT OF APPEALS CLEARLY ERRRED IN REACHING THE
OPPOSITE CONCLUSION, /5/  I CONCUR IN THE JUDGMENT OF THE COURT ON THAT
GROUND. 

/1/  FOR EXAMPLE:  "MR. KAYSER (HAZELTINE'S COUNSEL): . . . IT WAS
NOT UNTIL DURING THE TRIAL, AFTER WE HAD THE LONG DODDS AFFIDAVIT AND
ALL OF THIS TESTIMONY THAT SUDDENLY, GRADUALLY THIS NEW THEORY STARTS
TO CREEP IN, THIS NEW THEORY WHERE WE GO BACK AND TRY TO RECOVER AGAIN
BASED ON THESE ALLEGEDLY WRONGFUL ACTS MANY, MANY YEARS AGO. 

"THE COURT:  I MUST ASSUME, TO GO ALONG WITH THAT, THAT COUNSEL AT
THAT TIME DIDN'S READ THE PRETRIAL BRIEF WHICH CLEARLY SET OUT, PRIOR
TO THE TRIAL, THIS THEORY THAT YOU WERE TAKEN BY SURPRISE BY DURING THE
COURSE OF THE TRIAL."  APP. 158.  SEE ALSO APP. 87, 144. 

/2/  FOR EXAMPLE:  "THE COURT:  . . . (READS FROM HAZELTINE'S POST
TRIAL BRIEF.) 

"DO YOU DIFFER WITH COUNSEL'S STATEMENT, YOUR PRIOR COUNSEL'S
STATEMENT 90 DAYS AFTER PROOFS WERE CLOSED? 

"MR. KAYSER:  AS TO WHAT THE ISSUES WERE THAT WERE PRESENTED IN THIS
CASE, YES, YOUR HONOR, I DO.  I MOST DEFINITELY DO. 

"THE COURT:  OF COURSE, YOU KNOW BY NOW THAT THIS IS A NEW THEORY. 
I THINK THAT-- 

"THE COURT:  I MEAN, AT LEAST IT WASN'T ADVANCED IN THIS BRIEF FILED
JUNE 8, 90 DAYS AFTER THE PROOFS CLOSED. 

"MR. KAYSER:  YOUR HONOR, WE FULLY RECOGNIZE THE FACT THAT THE TRIAL
COUNSEL DID NOT REALIZE WHAT WAS HAPPENING TO HIM.  WE FULLY REALIZE
THAT FACT.  IF WE HAD REALIZED IT-- 

"THE COURT:  I MEAN, HE DIDN'T EVEN REALIZE IT 90 DAYS AFTER THE
PROOFS WERE OVER. 

"MR. KAYSER:  YES, YOUR HONOR.  I QUITE AGREE."  APP. 72. 

LATER THE FOLLOWING COLLOQUY OCCURRED: 

"THE COURT:  DO YOU AGREE WITH THE THEORY THAT SOMETIME LITIGATION
MUST END? 

"MR. KAYSER:  YES, YOUR HONOR. 

"THE COURT:  AND THESE OFFERS OF PROOF (WITH RESPECT TO EMBARGOES BY
THE ENGLISH AND AUSTRALIAN GOVERNMENTS) ARE NOW BEING MADE MORE THAN
ONE YEAR AFTER THE PROOF CLOSED ON THIS CASE? 

"MR. KAYSER:  YOUR HONOR, THIS I THINK IS ONE OF THE MOST UNUSUAL
CASES THAT WILL COME INTO A COURTROOM, IN THAT WE HAVE HERE, AS I THINK
WE CAN DEMONSTRATE-- WITHOUT BASIS WE HAVE HERE THE DANGER OF A
JUDGMENT OF ALMOST FORTY-NINE MILLION DOLLARS WHICH WILL SPELL
CORPORATE DEATH, WHICH IS SUBJECT TO THE AFFIRMATIVE DEFENSES OF
LIMITATIONS AND OF RELEASES . . . . 

"THE COURT:  I JUST GOT THROUGH INSTRUCTING A JURY THAT IN
DELIBERATING ON THEIR VERDICT, THEY SHOULD NOT TAKE INTO CONSIDERATION
EITHER SYMPATHY OR PREJUDICE. 

        .          .          .          . 

"MR. KAYSER:  I SUBMIT MOST RESPECTFULLY TO THIS COURT THAT THIS
COURT SHOULD TAKE INTO ACCOUNT EQUITY.  THIS IS NOT A MATTER OF
SYMPATHY.  THIS IS A MATTER OF EQUITY AND A MATTER OF JUSTICE; THAT
THIS JUDGMENT, WHICH WILL SPELL THE DEATH OF THIS CORPORATION, HAS HAD
ABSOLUTELY NO BASIS WHATSOEVER.  IT IS SUBJECT TO AFFIRMATIVE
DEFENSES.  IT WAS ACCOMPLISHED BY A SUBTLE SWITCH IN THEORY.  MAYBE IT
SHOULD HAVE BEEN CAUGHT; MAYBE IT SHOULDN'T.  BUT IS YOUR HONOR GOING
TO PENALIZE THIS CORPORATION-- 

"THE COURT:  I MEAN, IT WASN'T EVEN CAUGHT 90 DAYS AFTER THE PROOFS
CLOSED. 

"MR. KAYSER:  I AGREE, THAT'S TRUE.  I AGREE.  THIS IS A VERY
UNUSUAL CASE; WE RECOGNIZE THAT. 

"THE COURT:  YOU MAY PROCEED."  APP. 108-109.  SEE ALSO.  APP.  71
76 PASSIM, 158-161. 

/3/  FOR EXAMPLE:  "THE COURT:  . . . UNDERLYING WHAT YOU ARE SAYING
(WITH RESPECT TO THE EMBARGOES) IS WHAT IS SAID SO FREQUENTLY IN
APPEALS IN CRIMINAL CASES, THAT THEY ARE WHERE THEY ARE BY VIRTUE OF
INCOMPETENCE OF COUNSEL. 

"NOW, THERE A PERSON'S LIBERTY IS INVOLVED, AND WHAT DO THE COURTS
SAY IN REGARD TO THIS PLEA OF INCOMPETENCY OF COUNSEL? 

"THEY SAY, FIRST, WAS HE COUNSEL OF YOUR CHOICE RATHER THAN
APPOINTED COUNSEL?  AND IF HE WAS, THE COURTS SAY, IN REGARD TO KEEPING
MEN INCARCERATED AND DEPRIVING THEM OF THEIR LIBERTY, THAT UNLESS THE
TRIAL CONDUCTED BY COUNSEL OF THE PRISONER'S CHOICE WAS SUCH A FARCE,
SUCH A FRAUD THAT JUSTICE WOULD BE HORRIFIED BY THE RESULT, THAT SINCE
YOU ARE REPRESENTED BY COUNSEL OF YOUR CHOICE, WHY, AGREED THAT HE
MIGHT NOT BE THE GREATEST IN THE WORLD, BUT HE WAS YOUR LAWYER AND YOU
PICKED HIM OUT.  YOU ARE GOING TO HAVE TO REMAIN INCARCERATED FOR THE
BALANCE OF YOUR TERM. 

"NOW, HOW DO WE GET AROUND THAT ANALOGY IN THIS CASE?"  APP. 140
141. 

HAZELTINE'S ATTORNEY RESPONDED IN TERMS OF HIS THEORY OF SURPRISE,
WHEREUPON THE DISTRICT JUDGE ANSWERED THAT FEDERAL PROCEDURE WAS BASED
ON NOTICE PLEADING AND IN HIS OPINION HAZELTINE HAD BEEN PUT ON
NOTICE.  APP. 141-144. 

SEE ALSO, E.G., APP. 116, 121-123, 146, 155. 

/4/ APP. 169-223.  THE DISTRICT JUDGE ASKED FOR ZENITH'S VIEWS ON
THE MERITS OF THE PROPOSED DEFENSES, BUT HE DID NOT PRESS COUNSEL ON
HIS REPLY.  APP. 186, 189, 193. 

/5/  THE OPINION OF THE COURT OF APPEALS GIVES NO INDICATION THAT
ITS ATTENTION WAS DRAWN TO THE REMARKS OF THE DISTRICT JUDGE DURING
HAZELTINE'S ARGUMENT IN CHIEF, WHICH CAST LIGHT ON HIS RULING ON THE
MOTION FOR LEAVE TO FILE.  ITS ENTIRE DISCUSSION OF THE BASIS FOR THE
DISTRICT COURT'S ACTION READS AS FOLLOWS: 

"ZENITH'S COUNSEL OBJECTED TO THE FILING OF THE DEFENSES ON THE
GROUND THAT THEY CAME TOO LATE AND WERE WAIVED.  THE DISTRICT COURT,
HOWEVER, PERMITTED THE DEFENSES TO BE FILED AND THEREAFTER DENIED HRI'S
MOTION FOR JUDGMENT BASED ON THE DEFENSES . . . . (THE SUPREME COURT
LEFT OPEN THE QUESTION WHETHER THIS RULING WAS ON THE MERITS.)  IT IS
OUR VIEW THAT THE COURT'S RULING WAS NOT ON THE BASIS OF WAIVER, BUT
BECAUSE THE DEFENSES ON THEIR MERITS DID NOT BAR ZENITH'S RECOVERY." 
418 F.2D,AT 23-24. 

THOMAS C. MCCONNELL ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE PHILIP J. CURTIS AND FRANCIS J. MCCONNELL. 

VICTOR P. KAYSER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WERE JOHN T. CHADWELL, C. LEE COOK, JR., JOSEPH V. GIFFIN,
ROBERT F. WARD, AND LAURENCE B. DODDS. 
..END :




RELFORD V. U.S. DISCIPLINARY COMMANDANT, 401 U.S. 355 


       RELFORD V. COMMANDANT, U.S. DISCIPLINARY BARRACKS, FT.

           LEAVENWORTH

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 98.  ARGUED DECEMBER 15-16, 1970-- DECIDED FEBRUARY 24,

           1971 


PETITIONER, THEN AN ARMY CORPORAL, WAS CONVICTED IN 1961 BY A GENERAL
COURT-MARTIAL FOR VIOLATING ARTICLES 134 AND 120 OF THE UNIFORM CODE OF
MILITARY JUSTICE BY KIDNAPING AND RAPING, WITHIN THE BOUNDS OF A
MILITARY RESERVATION, TWO WOMEN-- ONE, WHO WAS WAITING FOR HER
SERVICEMAN BROTHER WHO WAS VISITING THE BASE HOSPITAL; THE OTHER, WHO
WAS ON HER WAY FROM THE HOME ON THE BASE WHERE SHE LIVED WITH HER
SERVICEMAN HUSBAND TO THE POST EXCHANGE WHERE SHE WORKED.  IN THIS
HABEAS CORPUS PROCEEDING THE COURT GRANTED CERTIORARI ON THE ISSUE OF
THE RETROACTIVITY AND SCOPE OF O'CALLAHAN V. PARKER, 395 U.S. 258
(1969), WHICH HELD THAT A COURT-MARTIAL HAD NO JURISDICTION TO TRY A
MEMBER OF THE ARMED FORCES CHARGED WITH ATTEMPTED OFF-POST RAPE OF A
CIVILIAN AND RELATED OFFENSES SINCE SUCH CRIMES WERE NOT "SERVICE
CONNECTED."  HELD: 

1.  THOUGH SOME OF THE FACTORS ARE PRESENT HERE THAT THE COURT
RELIED ON FOR ITS RESULT IN O'CALLAHAN (THE OFFENSES WERE COMMITTED IN
PEACETIME WITHIN THIS COUNTRY'S TERRITORY, DID NOT RELATE TO THE
ACCUSED'S MILITARY DUTIES, WERE TRADITIONALLY COGNIZABLE IN CIVILIAN
COURTS (WHICH WERE AVAILABLE TO TRY THEM), AND DID NOT DIRECTLY FLOUT
MILITARY AUTHORITY OR VIOLATE MILITARY PROPERTY), THIS CASE
SIGNIFICANTLY DIFFERS FROM O'CALLAHAN IN THAT THE CRIMES THERE WERE
COMMITTED BY A SERVICEMAN AWAY FROM HIS BASE AGAINST A VICTIM WHO HAD
NO CONNECTION WITH THE BASE, WHEREAS HERE THE CRIMES WERE COMMITED ON
THE BASE AGAINST WOMEN PROPERLY THERE, ONE OF WHOM WAS RETURNING TO HER
WORK ON THE BASE WHEN THE ATTACK OCCURRED.  PP. 364-365. 

2.  AN OFFENSE COMMITTED BY A SERVICEMAN ON A MILITARY POST THAT
VIOLATES THE SECURITY OF A PERSON OR OF PROPERTY THERE IS SERVICE
CONNECTED AND MAY BE TRIED BY A COURT-MARTIAL.  PP. 367-369. 

3.  THE QUESTION OF O'CALLAHAN'S RETROACTIVITY IS NOT DECIDED.  PP.
369-370. 

409 F.2D 824, AFFIRMED. 

BLACKMUN, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

IN O'CALLAHAN V. PARKER, 395 U.S. 258, DECIDED JUNE 2, 1969, BY A
FIVE-TO-THREE VOTE, THE COURT HELD THAT A COURT-MARTIAL MAY NOT TRY A
MEMBER OF OUR ARMED FORCES CHARGED WITH ATTEMPTED RAPE OF A CIVILIAN,
WITH HOUSEBREAKING, AND WITH ASSAULT WITH INTENT TO RAPE, WHEN THE
ALLEGED OFFENSES WERE COMMITTED OFF-POST ON AMERICAN TERRITORY, WHEN
THE SOLDIER WAS ON LEAVE, AND WHEN THE CHARGES COULD HAVE BEEN
PROSECUTED IN A CIVILIAN COURT.  WHAT IS NECESSARY FOR A COURT-MARTIAL,
THE COURT SAID, IS THAT THE CRIM BE "SERVICE CONNECTED."  395 U.S.,AT
272. 

O'CALLAHAN'S MILITARY TRIAL, OF COURSE, WAS WITHOUT THOSE
CONSTITUTIONAL GUARANTEES, INCLUDING TRIAL BY JURY, TO WHICH HE WOULD
HAVE BEEN ENTITLED HAD HE BEEN PROSECUTED IN A FEDERAL CIVILIAN COURT
IN THE THEN TERRITORY OF HAWAII WHERE THE ALLEGED CRIMES WERE
COMMITTED. 

O'CALLAHAN ALREADY HAS OCCASIONED A SUBSTANTIAL AMOUNT OF SCHOLARLY
COMMENT.  /1/  MUCH OF IT CHARACTERIZES THE DECISION AS A SIGNIFICANT
ONE BECAUSE IT IS SAID TO DEPART FROM LONG-ESTABLISHED, OR AT LEAST
LONG-ACCEPTED, CONCEPTS.  SOME OF THE LITERATURE IS GENERALLY
APPROVING.  /2/  SOME OF IT IS GENERALLY CRITICAL.  /3/  SOME OF IT, AS
DID THE O'CALLAHAN DISSENT, 395 U.S.,AT 284, FORECASTS A PERIOD OF
CONFUSION FOR BOTH THE CIVIL AND THE MILITARY COURTS.  /4/  NOR
SURPRISINGLY, MUCH OF THE LITERATURE IS CONCERNED WITH THE ISSUE OF
O'CALLAHAN'S RETROSPECTIVITY.  SOME WRITERS ASSERT THAT THE HOLDING
MUST BE APPLIED RETROACTIVELY.  /5/  OTHER PREDICT THAT IT WILL NOT BE
SO APPLIED.  /6/  NATURALLY ENOUGH, O'CALLAHAN HAS HAD ITS REFERENCES
IN THE FEDERAL COURTS OF APPEALS /7/  AND IN A SIGNIFICANT NUMBER OF
CASES IN THE UNITED STATES COURT OF MILITARY APPEALS.  /8/ 

IN THE PRESENT FEDERAL HABEAS CORPUS CASE, INSTITUTED SEVERAL YEARS
AFTER THE APPLICANT'S CONVICTION BY COURT-MARTIAL, CERTIORARI WAS
GRANTED "LIMITED TO RETROACTIVITY AND SCOPE OF O'CALLAHAN V. PARKER . .
. ."  397 U.S. 934 (1970).  WE THUS DO NOT RECONSIDER O'CALLAHAN.  OUR
TASK HERE CONCERNS ONLY ITS APPLICATION. 

        I 

ISIAH RELFORD, IN 1961, WAS A CORPORAL ON ACTIVE DUTY IN THE UNITED
STATES ARMY.  HE WAS STATIONED AT FORT DIX, NEW JERSEY. 

ON SEPTEMBER 4, 1961, THE VISITING 14-YEAR-OLD SISTER OF ANOTHER
SERVICEMAN, WHO WAS ON LEAVE FROM HIS ARMY STATION AT FORT CAMPBELL,
KENTUCKY, AND WHO CAME TO FORT DIX WHEN HIS WIFE DELIVERED A CHILD AT
THE BASE HOSPITAL, WAS ABDUCTED AT THE POINT OF A KNIFE FROM AN
AUTOMOBILE IN THE HOSPITAL'S PARKING LOT AS SHE WAITED FOR HER
BROTHER.  THE GIRL WAS RAPED BY HER ABDUCTOR. 

A FEW WEEKS LATER, ON OCTOBER 21, THE WIFE OF AN AIR FORCE MAN
STATIONED AT MCGUIRE AIR FORCE BASE, ADJACENT TO FORT DIX, WAS DRIVING
FROM HER HOME ON THE BASE, WHERE SHE WORKED AS A WAITRESS.  AS THE
WOMAN SLOWED HER AUTOMOBILE FOR A STOP SIGN, A MAN GAINED ENTRY TO THE
CAR FROM THE PASSENGER SIDE AND, WITH A KNIFE AT HER THROAT, COMMANDED
THE WOMAN TO DRIVE ON SOME DISTANCE TO A DIRT ROAD IN THE FORT'S
TRAINING AREA.  SHE WAS RAPED THERE. 

THE SECOND VICTIM, WITH HER ASSAILANT STILL IN THE AUTOMOBILE, WAS
ABLE TO MAKE HER PREDICAMENT KNOWN TO MILITARY POLICE.  THE ASSAILANT
WAS APPREHENDED AND TURNED OUT TO BE RELFORD.  HE IMMEDIATELY ADMITTED
CONSENSUAL INTERCOURSE WITH THE VICTIM.  THE NEXT MORNING, AFTER A
BRIEF INTERROGATION, HE CONFESSED TO KIDNAPING AND RAPING BOTH WOMEN. 

AT THE TIME OF EACH INCIDENT RELFORD WAS IN CIVILIAN CLOTHES. 

IT IS UNDISPUTED THAT THESE EVENTS ALL TOOK PLACE ON THE MILITARY
RESERVATION CONSISTING OF FORT DIX AND THE CONTIGUOUS MCGUIRE AIR FORCE
BASE. 

RELFORD, IN DUE COURSE, WAS CHARGED WITH RAPING AND KIDNAPING EACH
OF THE WOMEN, IN VIOLATION OF ARTS. 120 AND 134, RESPECTIVELY, OF THE
UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 920 AND 934.  /9/  HE WAS
TRIED BY A GENERAL COURT-MARTIAL IN DECEMBER 1961 AND WAS CONVICTED ON
THE FOUR CHARGES.  RELFORD'S SENTENCE WAS THE FORFEITURE OF ALL PAY AND
ALLOWANCES, REDUCTION TO THE LOWEST ENLISTED GRADE, AND DEATH.  THE
CUSTOMARY REFERENCE TO THE STAFF JUDGE ADVOCATE WAS MADE AND THE
CONVENING AUTHORITY APPROVED.  U.C.M.J. ARTS. 60-65, 10 U.S.C. 860
865.  UPON THE REVIEW BY THE ARMY BOARD OF REVIEW, /10/  REQUIRED UNDER
THE CODE'S ART. 66, 10 U.S.C. 866, THE CONVICTION WAS SUSTAINED; THE
SENTENCE, HOWEVER, WAS REDUCED TO HARD LABOR FOR 30 YEARS, TOTAL
FORFEITURES, AND A DISHONORABLE DISCHARGE.  THE COURT OF MILITARY
APPEALS DENIED A PETITION FOR REVIEW ON SEPTEMBER 24, 1963.  UNITED
STATES V. RELFORD, 14 U.S.C.M.A. 678. 

RELFORD'S CASE THUS BECAME FINAL MORE THAN FIVE AND A HALF YEARS
PRIOR TO THIS COURT'S DECISION IN O'CALLAHAN V. PARKER. 

IN 1967, RELFORD, BEING IN CUSTODY IN THE UNITED STATES DISCIPLINARY
BARRACKS AT LEAVENWORTH, KANSAS, FILED HIS APPLICATION FOR A WRIT OF
HABEAS CORPUS WITH THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS.  HE ALLEGED INADEQUATE REPRESENTATION BY COUNSEL IN THE
MILITARY PROCEEDING.  CHIEF JUDGE STANLEY FOUND NO MERIT IN THE CLAIM
AND DENIED THE APPLICATION.  ON APPEAL, RELFORD REPEATED THE INADEQUATE
REPRESENTATION CLAIM AND, FOR THE FIRST TIME, RAISED QUESTIONS AS TO
THE ADMISSIBILITY OF HIS CONFESSION, AS TO A LINEUP PROCEDURE, AND AS
TO THE FAIRNESS OF HIS MILITARY TRIAL.  THE TENTH CIRCUIT REVIEWED ALL
THESE CLAIMS ON THE MERITS, BUT AFFIRMED THE DISTRICT COURT'S DENIAL OF
RELIEF.  RELFORD V. COMMANDANT, 409 F.2D 824 (1969).  /11/ 

THE TENTH CIRCUIT'S OPINION WAS FILED ON APRIL 23, 1969, SEVERAL
WEEKS PRIOR TO THIS COURT'S DECISION IN O'CALLAHAN V. PARKER.  THE
ISSUE AS TO THE PROPRIETY OF TRIAL BY COURT-MARTIAL, PERHAPS
UNDERSTANDABLY, WAS NOT RAISED BEFORE JUDGE STANLEY OR ON THE APPEAL TO
THE TENTH CIRCUIT; THE ISSUE, HOWEVER, HAD BEEN PRESENTED IN
O'CALLAHAN'S CHRONOLOGICALLY EARLIER APPEAL IN HIS HABEAS PROCEEDING. 
SEE UNITED STATES EX REL. O'CALLAHAN V. PARKER, 390 F.2D 360, 363-364
(CA3 1968). 

        II 

THIS CASE, AS DID O'CALLAHAN, OBVIOUSLY FALLS WITHIN THE AREA OF
STRESS BETWEEN THE CONSTITUTIONAL GUARANTEES CONTAINED IN THE
CONSTITUTION'S ART. III, SEC. 2, CL. 3, IN THE SIXTH AMENDMENT, AND
POSSIBLY IN THE FIFTH AMENDMENT, ON THE ONE HAND, AND, ON THE OTHER,
THE POWER VESTED IN THE CONGRESS, BY THE CONSTITUTION'S ART. I, SEC. 8,
CL. 14, "TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND
AND NAVAL FORCES," WITH ITS SUPPORTIVE NECESSARY AND PROPER PROVISION
IN CL. 18, AND THE FIFTH AMENDMENT'S CORRELATIVE EXCEPTION FOR "CASES
ARISING IN THE LAND OR NAVAL FORCES." 

RELFORD ARGUES THAT O'CALLAHAN'S REQUIREMENT THAT THE CRIME BE
"SERVICE CONNECTED" BEFORE A COURT-MARTIAL MAY SIT DEMANDS THAT THE
CRIME ITSELF BE MILITARY IN NATURE, THAT IS, ONE INVOLVING A LEVEL OF
CONDUCT REQUIRED ONLY OF SERVICEMEN AND, BECAUSE OF THE SPECIAL NEEDS
OF THE MILITARY, ONE DEMANDING MILITARY DISCIPLINARY ACTION.  HE
FURTHER STATES THAT THE CHARGES AGAINST HIM-- LIKE THOSE AGAINST
O'CALLAHAN-- DO NOT INVOLVE A LEVEL OF CONDUCT REQUIRED ONLY OF
SERVICEMEN.  HE MAINTAINS THAT OCCURRENCE OF THE CRIMES ON A MILITARY
RESERVATION AND THE MILITARY-DEPENDENT IDENTITY OF ONE OF HIS VICTIMS
DO NOT SUBSTANTIALLY SUPPORT THE MILITARY'S CLAIM OF A SPECIAL NEED TO
TRY HIM. 

IN FURTHER DETAIL, IT IS STATED THAT THE COURT IN O'CALLAHAN
RECOGNIZED THAT A COURT-MARTIAL "REMAINS TO A SIGNIFICANT DEGREE A
SPECIALIZED PART OF THE OVERALL MECHANISM BY WHICH MILITARY DISCIPLINE
IS PRESERVED," 395 U.S.,AT 265; THAT MILITARY COURTS, OF NECESSITY, ARE
NOT IMPARTIAL WEIGHERS OF JUSTICE, BUT HAVE AS THEIR PRIMARY
CONSIDERATION THE ENFORCEMENT OF THE UNIQUE DISCIPLINE REQUIRED OF A
FIGHTING FORCE; AND THAT, AS A CONSEQUENCE, THE COURT-MARTIAL MUST BE
LIMITED TO THE "LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED." 
UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S. 11, 23 (1955), CITING
ANDERSON V. DUNN, 6 WHEAT.  204, 231 (1821). 

IT IS THEN SAID THAT THE LEVEL OF CONDUCT RELFORD IS ALLEGED TO HAVE
VIOLATED, THAT IS, INTERCOURSE ONLY WITH CONSENT, IS THE VERY SAME
LEVEL REQUIRED IN THE CIVILIAN COMMUNITY AND IS NOT ALTERED BY
CONSIDERATIONS OF MILITARY DEPENDENCY; THAT HIS ALLEGED CRIMES ARE NO
MORE MILITARY THAN WERE O'CALLAHAN'S; THAT THE ABILITY OF THE MILITARY
TO PERFORM ITS MISSION REMAINS THE SAME WHETHER THE CRIMES WITH WHICH
HE WAS CHARGED WERE COMMITTED ON BASE OR OFF BASE; THAT ANY INTEREST IN
THE MAINTENANCE OF ORDER ON THE BASE IS ADEQUATELY SERVED BY
APPREHENSION OF THE OFFENDER AND TRIAL IN A CIVILIAN COURT; THAT THE ON
POST/OFF-POST DISTINCTION HAS LITTLE MEANING; THAT IT IS THE NATURE OF
THE CRIME THAT IS IMPORTANT; THAT THE CRIMES CHARGED TO RELFORD STAND
IN CONTRAST TO PURELY MILITARY CRIMES SUCH AS DESERTION, ABSENCE
WITHOUT LEAVE, MISSING MOVEMENT, ASSAULTING A SUPERIOR COMMISSIONED
OFFICER, AND BEING DRUNK ON DUTY, U.C.M.J. ARTS. 85, 86, 87, 90, AND
112, 10 U.S.C. 885, 886, 887, 890, AND 912; AND THAT ONLY CRIMES OF THE
LATTER TYPE HAVE "AN IMMEDIATE ADVERSE IMPACT UPON THE ABILITY OF THE
MILITARY TO PERFORM ITS MISSION," AND ARE "PROPER SUBJECTS FOR THE
EXERCISE OF MILITARY JURISDICTION." 

        III 

IN EVALUATING THE FORCE OF THIS ARGUMENT, THE FACTS OF O'CALLAHAN
AND THE PRECISE HOLDING IN THAT CASE POSSESS PARTICULAR SIGNIFICANCE. 
WE REPEAT:  O'CALLAHAN WAS IN MILITARY SERVICE AT THE TIME AND WAS
STATIONED AT A BASE IN AMERICAN TERRITORY.  HIS OFFENSES, HOWEVER, TOOK
PLACE OFF BASED IN A CIVILIAN HOTEL WHILE HE WAS ON LEAVE AND NOT IN
UNIFORM. 

MR. JUSTICE DOUGLAS, IN SPEAKING FOR THE COURT, SAID: 

     "IN THE PRESENT CASE PETITIONER WAS PROPERLY ABSENT FROM HIS

  MILITARY BASE WHEN HE COMMITTED THE CRIMES WITH WHICH HE IS

  CHARGED.  THERE WAS NO CONNECTION-- NOT EVEN THE REMOTEST ONE--

  BETWEEN HIS MILITARY DUTIES AND THE CRIMES IN QUESTION.  THE

CRIMES WERE NOT COMMITTED ON A MILITARY POST OR ENCLAVE; NOR WAS

  THE PERSON WHOM HE ATTACKED PERFORMING ANY DUTIES RELATING TO THE

  MILITARY.  MOREOVER, HAWAII, THE SITUS OF THE CRIME, IS NOT AN

  ARMED CAMP UNDER MILITARY CONTROL, AS ARE SOME OF OUR FAR-FLUNG

  OUTPOSTS. 

      "FINALLY, WE DEAL WITH PEACETIME OFFENSES, NOT WITH AUTHORITY

  STEMMING FROM THE WAR POWER.  CIVIL COURTS WERE OPEN.  THE

  OFFENSES WERE COMMITTED WITHIN OUR TERRITORIAL LIMITS, NOT IN THE

  OCCUPIED ZONE OF A FOREIGN COUNTRY.  THE OFFENSES DID NOT INVOLVE

  ANY QUESTION OF THE FLOUTING OF MILITARY AUTHORITY, THE SECURITY

  OF A MILITARY POST, OR THE INTEGRITY OF MILITARY PROPERTY."  395

  U.S.,AT 273-274. 

WE STRESS SERIATIM WHAT IS THUS EMPHASIZED IN THE HOLDING: 

1.  THE SERVICEMAN'S PROPER ABSENCE FROM THE BASE. 

2.  THE CRIME'S COMMISSION AWAY FROM THE BASE. 

3.  ITS COMMISSION AT A PLACE NOT UNDER MILITARY CONTROL. 

4.  ITS COMMISSION WITHIN OUR TERRITORIAL LIMITS AND NOT IN AN
OCCUPIED ZONE OF A FOREIGN COUNTRY. 

5.  ITS COMMISSION IN PEACETIME AND ITS BEING UNRELATED TO AUTHORITY
STEMMING FROM THE WAR POWER. 

6.  THE ABSENCE OF ANY CONNECTION BETWEEN THE DEFENDANT'S MILITARY
DUTIES AND THE CRIME. 

7.  THE VICTIM'S NOT BEING ENGAGED IN THE PERFORMANCE OF ANY DUTY
RELATING TO THE MILITARY. 

8.  THE PRESENCE AND AVAILABILITY OF A CIVILIAN COURT IN WHICH THE
CASE CAN BE PROSECUTED. 

9.  THE ABSENCE OF ANY FLOUTING OF MILITARY AUTHORITY. 

10.  THE ABSENCE OF ANY THREAT TO A MILITARY POST. 

11.  THE ABSENCE OF ANY VIOLATION OF MILITARY PROPERTY.  ONE MIGHT
ADD STILL ANOTHER FACTOR IMPLICIT IN THE OTHERS: 

12.  THE OFFENSE'S BEING AMONG THOSE TRADITIONALLY PROSECUTED IN
CIVILIAN COURTS. 

   IV 

THIS LISTING OF FACTORS UPON WHICH THE COURT RELIED FOR ITS RESULT
IN O'CALLAHAN REVEALS, OF COURSE, THAT IT CHOSE TO TAKE AN AD HOC
APPROACH TO CASES WHERE TRIAL BY COURT-MARTIAL IS CHALLENGED.  WE
THEREFORE TURN TO THOSE FACTORS IN RELFORD'S CASE THAT, AS SPELLED OUT
IN O'CALLAHAN'S, BEAR UPON THE COURT-MARTIAL ISSUE. 

IT IS AT ONCE APPARENT THAT ELEMENTS 4, 6, 8, 11, AND 12, AND
PERHAPS 5 AND 9, OPERATE IN RELFORD'S FAVOR AS THEY DID IN
O'CALLAHAN'S:  THE OFFENSES WERE COMMITTED WITHIN THE TERRITORIAL
LIMITS OF THE UNITED STATES; THERE WAS NO CONNECTION BETWEEN RELFORD'S
MILITARY DUTIES AND THE CRIMES WITH WHICH HE WAS CHARGED; COURTS IN NEW
JERSEY WERE OPEN AND AVAILABLE FOR THE PROSECUTION OF RELFORD; DESPITE
THE VIETNAM CONFLICT WE MAY ASSUME FOR PRESENT PURPOSES THAT THE
OFFENSES WERE COMMITTED IN PEACETIME AND THAT THEY WERE UNRELATED TO
ANY PROBLEM OF AUTHORITY STEMMING FROM THE WAR POWER; MILITARY
AUTHORITY, DIRECTLY AT LEAST, WAS NOT FLOUTED; THE INTEGRITY OF
MILITARY PROPERTY WAS NOT VIOLATED; AND THE CRIMES OF RAPE AND
KIDNAPING ARE TRADITIONALLY COGNIZABLE IN THE CIVILIAN COURTS. 

JUST AS CLEARLY, HOWEVER, THE OTHER ELEMENTS, PRESENT AND RELIED UPON
IN O'CALLAHAN'S CASE, ARE NOT AT HAND IN RELFORD'S CASE.  THESE ARE
ELEMENTS 1, 2, 3, 7, AND 10:  RELFORD WAS NOT ABSENT FROM THE BASE; THE
CRIMES WERE COMMITTED ON THE MILITARY ENCLAVE; THE SECOND VICTIM,
BECAUSE OF HER DUTIES AT THE POST EXCHANGE AND BECAUSE OF THE FACT THAT
HER ABDUCTION AND THE ATTACK UPON HER TOOK PLACE AS SHE WAS RETURNING
TO THE PX AT THE END OF A SHORT AND APPROVED BREAK IN HER WORK, WAS
ENGAGED IN THE PERFORMANCE OF A DUTY RELATING TO THE MILITARY; AND THE
SECURITY OF TWO WOMEN PROPERLY ON THE POST WAS THREATENED AND, INDEED,
THEIR PERSONS WERE VIOLATED. 

THERE ARE STILL OTHER SIGNIFICANT ASPECTS OF THE RELFORD OFFENSES:
THE FIRST VICTIM WAS THE SISTER OF A SERVICEMAN WHO WAS THEN PROPERLY
AT THE BASE.  THE SECOND VICTIM WAS THE WIFE OF A SERVICEMAN STATIONED
AT THE BASE; SHE AND HER HUSBAND HAD QUARTERS ON THE BASE AND WERE
LIVING THERE.  TANGIBLE PROPERTY PROPERLY ON THE BASE, THAT IS, TWO
AUTOMOBILES, WERE FORCEFULLY AND UNLAWFULLY ENTERED. 

V 

WITH THE FOREGOING CONTRASTING COMPARISON OF THE PERTINENT FACTUAL
ELEMENTS OF O'CALLAHAN WITH THOSE OF RELFORD'S CASE, WE READILY
CONCLUDE THAT THE CRIMES WITH WHICH RELFORD WAS CHARGED WERE TRIABLE BY
A MILITARY COURT.  WE DO NOT AGREE WITH PETITIONER WHEN HE CLAIMS THAT
THE "APPARENT DISTINCTIONS" BETWEEN THIS CASE AND O'CALLAHAN "EVAPORATE
WHEN VIEWED WITHIN THE CONTEXT OF THE 'SERVICE-CONNECTED' TEST."  /12/
WE STRESS:  (A) THE SECURITY OF PERSONS AND OF PROPERTY ON THE MILITARY
ENCLAVE.  RELFORD CONCEDES THE EXISTENCE OF THIS VITAL INTEREST.  /13/
(B) THE RESPONSIBILITY OF THE MILITARY COMMANDER FOR MAINTENANCE OF
ORDER IN HIS COMMAND AND HIS AUTHORITY TO MAINTAIN THAT ORDER.  SEE
CAFETERIA & RESTAURANT WORKERS UNION V. MCELROY, 367 U.S. 886 (1961). 
RELFORD ALSO CONCEDES THIS.  (C) THE IMPACT AND ADVERSE EFFECT THAT A
CRIME COMMITTED AGAINST A PERSON OR PROPERTY ON A MILITARY BASE, THUS
VIOLATING THE BASE'S VERY SECURITY, HAS UPON MOREALE, DISCIPLINE,
REPUTATION AND INTEGRITY OF THE BASE ITSELF, UPON ITS PERSONNEL AND
UPON THE MILITARY OPERATION AND THE MILITARY MISSION.  (D) THE
CONVICTION THAT ART. I, SEC. 8, CL. 14, VESTING IN THE CONGRESS THE
POWER "TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND
NAVAL FORCES," MEANS, IN APPROPRIATE AREAS BEYOND THE PURELY MILITARY
OFFENSE, MORE THAN THE MERE POWER TO ARREST A SERVICEMAN OFFENDER AND
TURN HIM OVER TO THE CIVIL AUTHORITIES.  THE TERM "REGULATION" ITSELF
IMPLIES, FOR THOSE APPROPRIATE CASES, THE POWER TO TRY AND TO PUNISH. 
(E) THE DISTINCT POSSIBILITY THAT CIVIL COURTS, PARTICULARLY NONFEDERAL
COURTS, WILL HAVE LESS THAN COMPLETE INTEREST, CONCERN, AND CAPACITY
FOR ALL THE CASES THAT VINDICATE THE MILITARY'S DISCIPLINARY AUTHORITY
WITHIN ITS OWN COMMUNITY.  SEE W. WINTHROP, MILITARY LAW AND PRECEDENTS
725 (2D ED. 1896, 1920 REPRINT); WILKINSON, THE NARROWING SCOPE OF
COURT-MARTIAL JURISDICTION:  O'CALLAHAN V. PARKER, 9 WASHBURN, L.J.
193, 208 (1970).  (F) THE VERY POSITIVE IMPLICATION IN O'CALLAHAN
ITSELF, ARISING FROM ITS EMPHASIS ON THE ABSENCE OF SERVICE-CONNECTED
ELEMENTS THERE, THAT THE PRESENCE OF FACTORS SUCH AS GEOGRAPHICAL AND
MILITARY RELATIONSHIPS HAVE IMPORTANT CONTRARY SIGNIFICANCE.  (G) THE
RECOGNITION IN O'CALLAHAN THAT, HISTORICALLY, A CRIME AGAINST THE
PERSON OF ONE ASSOCIATED WITH THE POST WAS SUBJECT EVEN TO THE GENERAL
ARTICLE.  THE COMMENT FROM WINTHROP, SUPRA, AT 724: 

     "THUS CRIMES AS THEFT FROM OR ROBBERY OF AN OFFICER, SOLDIER,

  POST TRADER, OR CAMP-FOLLOWER . . . INASMUCH AS THEY DIRECTLY

  AFFECT MILITARY RELATIONS AND PREJUDICE MILITARY DISCIPLINE, MAY

  PROPERLY BE-- AS THEY FREQUENTLY HAVE BEEN-- THE SUBJECT OF

  CHARGES UNDER THE PRESENT ARTICLE.  ON THE OTHER HAND, WHERE SUCH

  CRIMES ARE COMMITTED UPON OR AGAINST CIVILIANS, AND NOT AT OR

  NEAR A MILITARY CAMP OR POST, OR IN BREACH OR VIOLATION OF A

  MILITARY DUTY OR ORDER, THEY ARE NOT IN GENERAL TO BE REGARDED AS

  WITHIN THE DESCRIPTION OF THE ARTICLE, BUT ARE TO BE TREATED AS

  CIVIL RATHER THAN MILITARY OFFENSES."  (FOOTNOTES OMITTED.) 

CITED BOTH BY THE COURT IN O'CALLAHAN, 395 U.S.,AT 274 N. 19, AND BY
THE DISSENT AT 278-279, CERTAINLY SO INDICATES AND EVEN GOES SO FAR AS
TO INCLUDE AN OFFENSE AGAINST A CIVILIAN COMMITTED "NEAR" A MILITARY
POST.  (H) THE MISREADING AND UNDUE RESTRICTION OF O'CALLAHAN IF IT
WERE INTERPRETED AS CONFINING THE COURT-MARTIAL TO THE PURELY MILITARY
OFFENSES THAT HAVE NO COUNTERPART IN NONMILITARY CRIMINAL LAW.  (I) OUR
INABILITY APPROPRIATELY AND MEANINGFULLY TO DRAW ANY LINE BETWEEN A
POST'S STRICTLY MILITARY AREAS AND ITS NONMILITARY AREAS, OR BETWEEN A
SERVICEMAN-DEFENDANT'S ON-DUTY AND OFF-DUTY ACTIVITIES AND HOURS ON THE
POST. 

THIS LEADS US TO HOLD, AND WE DO SO HOLD, THAT WHEN A SERVICEMAN IS
CHARGED WITH AN OFFENSE COMMITTED WITHIN OR AT THE GEOGRAPHICAL
BOUNDARY OF A MILITARY POST AND VIOLATIVE OF THE SECURITY OF A PERSON
OR OF PROPERTY THERE, THAT OFFENSE MAY BE TRIED BY A COURT-MARTIAL. 
EXPRESSING IT ANOTHER WAY:  A SERVICEMAN'S CRIME AGAINST THE PERSON OF
AN INDIVIDUAL UPON THE BASE OR AGAINST PROPERTY ON THE BASE IS "SERVICE
CONNECTED," WITHIN THE MEANING OF THAT REQUIREMENT AS SPECIFIED IN
O'CALLAHAN, 395 U.S.,AT 272.  THIS DELINEATION, WE FEEL, FULLY COMPORTS
WITH THE STANDARD OF "THE LEAST POSSIBLE POWER ADEQUATE TO THE END
PROPOSED" REFERRED TO IN O'CALLAHAN, 395 U.S.,AT 265. 

BY THIS MEASURE, RELFORD'S ALLEGED OFFENSES WERE OBVIOUSLY SERVICE
CONNECTED.  THERE IS, THEREFORE, NO CONSTITUTIONAL OR STATUTORY BARRIER
AND RELFORD WAS PROPERLY TRIED BY A COURT-MARTIAL. 

        VI 

WE RECOGNIZE THAT ANY AD HOC APPROACH LEAVES OUTER BOUNDARIES
UNDETERMINED.  O'CALLAHAN MARKS AN AREA, PERHAPS NOT THE LIMIT, FOR THE
CONCERN OF THE CIVIL COURTS AND WHERE THE MILITARY MAY NOT ENTER.  THE
CASE TODAY MARKS AN AREA, PERHAPS NOT THE LIMIT, WHERE THE COURT
MARTIAL IS APPROPRIATE AND PERMISSIBLE.  WHAT LIES BETWEEN IS FOR
DECISION AT ANOTHER TIME. 

        VII 

HAVING REACHED THIS RESULT ON THE COURT-MARTIAL ISSUE, THE ADDITIONAL
ISSUE THAT THE PARTIES HAVE ARGUED, OF O'CALLAHAN'S RETROSPECTIVITY,
NEED NOT BE DECIDED.  SEE ALABAMA STATE FEDERATION OF LABOR V. MCADORY,
325 U.S. 450, 461 (1945).  WE RECOGNIZE THAT THE RETROACTIVITY QUESTION
HAS IMPORTANT DIMENSIONS, BOTH DIRECT AND COLLATERAL, AND THAT THE
GOVERNMENT STRONGLY URGES THAT THE QUESTION BE DECIDED HERE AND NOW. 
WE HAVE CONCLUDED, HOWEVER, THAT THE ISSUE IS BETTER RESOLVED IN OTHER
LITIGATION WHERE, PERHAPS, IT WOULD BE SOLELY DISPOSITIVE OF THE CASE. 
WE TAKE SOME COMFORT IN THE HOPE THAT THE PRESENT DECISION SHOULD
ELIMINATE AT LEAST SOME OF THE CONFUSION THAT THE PARTIES AND
COMMENTATORS SAY HAS EMERGED FROM O'CALLAHAN.  /14/

    AFFIRMED. 

/1/  EVERETT, O'CALLAHAN V. PARKER-- MILESTONE OR MILLSTONE IN
MILITARY JUSTICE?, 1969 DUKE L.J. 853; MCCOY, EQUAL JUSTICE FOR
SERVICEMEN:  THE SITUATION BEFORE AND SINCE O'CALLAHAN V. PARKER, 16
N.Y.L.F. 1 (1970); NELSON & WESTBROOK, COURT-MARTIAL JURISDICTION OVER
SERVICEMEN FOR "CIVILIAN" OFFENSES:  AN ANALYSIS OF O'CALLAHAN V.
PARKER, 54 MINN.L.REV.  1 (1969); WILKINSON, THE NARROWING SCOPE OF
COURT-MARTIAL JURISDICTION:  O'CALLAHAN V. PARKER, 9 WASHBURN L.J. 193
(1970); WURTZEL, O'CALLAHAN V. PARKER:  WHERE ARE WE NOW?, 56 A.B.A.J.
686 (1970); THE SUPREME COURT 1968 TERM, 83 HARV.L.REV.  7, 212-220
(1969); O'CALLAHAN V. PARKER, 395 U.S. 258 (1969):  NEW LIMITATION ON
COURT-MARTIAL JURISDICTION, 61 J.CRIM.L.C.& P.S. 195 (1970); COMMENT,
22 BAYLOR L.REV.  64 (1970); COMMENT, 18 J.PUB.L. 471 (1969); COMMENT,
21 MERCER L.REV.  311 (1969); COMMENT, 7 SANDIEGO L.REV.  55 (1970);
COMMENT, 15 VILL.L.REV.  712 (1970); COMMENT, 21 S.C.L.REV.  781
(1969); NOTE, 70 COL.L.REV.  1262 (1970); NOTE, 18 KAN.L.REV.  335
(1970); NOTE, 3 LOYOLA U.L.REV.  188 (1970); NOTE, 24 U.MIAMI L.REV. 
399 (1970); NOTE, 68 MICH.L.REV.  1016 (1970); NOTE, 48 N.C.L.REV.  380
(1970); NOTE, 64 NW.U.L.REV.  930 (1970); RECENT CASES, 49 ORE.L.REV. 
237 (1970); NOTE, 23 SW.L.J. 948 (1969); NOTE, 37 TENN.L.REV.  421
(1970); NOTE, 44 TUL.L.REV.  417 (1970); 36 BROOKLYN L.REV 259 (1970);
19 BUFFALO L.REV.  400 (1970); 38 GEO.WASH.L.REV.  170 (1969); 31 OHIO
ST.L.J. (1970); 22 VAND.L.REV.  1377 (1969). 

/2/  MCCOY, SUPRA; 61 J.CRIM.L.C.&P.S. 195; NOTE, 18 KAN.L.REV. 
335; 19 BUFFALO L.REV.  400; COMMENT, 18 J.PUB.  L. 471. 

/3/  EVERETT, SUPRA; NELSON & WESTBROOK, SUPRA; WILKINSON, SUPRA;
WURTZEL, SUPRA; COMMENT, 15 VILL.L.REV.  712; NOTE, 24 U.MIAMI L.REV. 
399; 38 GEO.WASH.L.REV.  170; 22 VAND.L.REV.  1377. 

/4/  COMMENT, 22 BAYLOR L.REV.  64; COMMENT, 18 J.PUB.  L. 471;
NOTE, 18 KAN.L.REV.  335; NOTE, 23 SW.L.J. 948; NOTE, 24 U.MIAMI
L.REV.  399; 31 OHIO ST.L.J. 630. 

/5/  WILKINSON, SUPRA; COMMENT, 22 BAYLOR L.REV.  64; NOTE, 64
NW.U.L.REV.  930. 

/6/  NELSON & WESTBROOK, SUPRA; COMMENT, 21 S.C.L.REV.  781; NOTE, 3
LOYOLA U.L.REV.  188, 198 N. 67; 44 TUL.L.REV.  417, 424. 

/7/  SEE, E.G., LATNEY V. IGNATIUS, 135 U.S.APP.D.C. 65, 416 F.2D
821 (1969); HARRIS V. CICCONE, 417 F.2D 479, 488 (CA8 1969), CERT.
DENIED, 397 U.S. 1078; GALLAGHER V. UNITED STATES, 191 CT.CL. 546, 423
F.2D 1371 (1970), CERT. DENIED, 400 U.S. 849; SILVERO V. CHIEF OF NAVAL
AIR BASIC TRAINING, 428 F.2D 1009 (CA5 1970); KING V. MOSELEY, 430 F.2D
732 (CA10 1970); ZENOR V. VOGT, 434 F.2D 189 (CA5 1970). 

/8/  UNITED STATES V. BORYS, 18 U.S.C.M.A. 547, 40 C.M.R. 259
(1969); UNITED STATES V. PRATHER, 18 U.S.C.M.A. 560, 40 C.M.R. 272
(1969); UNITED STATES V. BEEKER, 18 U.S.C.M.A. 563, 40 C.M.R. 275
(1969); UNITED STATES V. DERONDE, 18 U.S.C.M.A. 575, 40 C.M.R. 287
(1969); UNITED STATES V. BOYD, 18 U.S.C.M.A. 581, 40 C.M.R. 293 (1969);
UNITED STATES V. COCHRAN, 18 U.S.C.M.A. 588, 40 C.M.R. 300 (1969);
UNITED STATES V. CHANDLER, 18 U.S.C.M.A. 593, 40 C.M.R. 305 (1969);
UNITED STATES V. CRAPO, 18 U.S.C.M.A. 594, 40 C.M.R. 306 (1969); UNITED
STATES V. HARRIS, 18 U.S.C.M.A. 596, 40 C.M.R. 308 (1969); UNITED
STATES V. CASTRO, 18 U.S.C.M.A. 598, 40 C.M.R. 310 (1969); UNITED
STATES V. HENDERSON, 18 U.S.C.M.A. 601, 40 C.M.R. 313 (1969); UNITED
STATES V. RIEHLE 18 U.S.C.M.A. 603, 40 C.M.R. 315 (1969); UNITED STATES
V. WILLIAMS, 18 U.S.C.M.A. 605, 40 C.M.R. 317 (1969); UNITED STATES V.
PAXIAO, 18 U.S.C.M.A. 608, 40 C.M.R. 320 (1969); UNITED STATES V.
SMITH, 18 U.S.C.M.A. 609, 40 C.M.R. 321 (1969); UNITED STATES V.
SHOCKLEY, 18 U.S.C.M.A. 610, 40 C.M.R. 322 (1969); UNITED STATES V.
ROSE, 19 U.S.C.M.A. 3, 41 C.M.R. 3 (1969); UNITED STATES V. ARMSTRONG,
19 U.S.C.M.A. 5, 41 C.M.R. 5 (1969); UNITED STATES V. REGO, 19
U.S.C.M.A. 9, 41 C.M.R. 9 (1969); UNITED STATES V. CAMACHO, 19
U.S.C.M.A. 11, 41 C.MR. 11 (1969); UNITED STATES V. COOK, 19 U.S.C.M.A.
13, 41 C.M.R. 13 (1969); UNITED STATES V. ARMES, 19 U.S.C.M.A. 15, 41
C.M.R. 15 (1969); UNITED STATES V. MORISSEAU, 19 U.S.C.M.A. 17, 41
C.M.R. 17 (1969); UNITED STATES V. PEAK, 19 U.S.C.M.A. 19, 41 C.M.R. 19
(1969); UNITED STATES V. PLAMONDON, 19 U.S.C.M.A. 22, 41 C.M.R. 22
(1969); UNITED STATES V. SHARKEY, 19 U.S.C.M.A. 26, 41 C.M.R. 26
(1969); UNITED STATES V. WEINSTEIN, 19 U.S.C.M.A. 29, 41 C.M.R. 29
(1969); UNITED STATES V. ALLEN, 19 U.S.C.M.A. 31, 41 C.M.R. 31 (1969);
UNITED STATES V. SAFFORD, 19 U.S.C.M.A. 33, 41 C.M.R. 33 (1969); UNITED
STATES V. FRAZIER, 19 U.S.C.M.A. 40, 41 C.M.R. 40 (1969); UNITED STATES
V. NICHOLS, 19 U.S.C.M.A. 43, 41 C.M.R. 43 (1969); UNITED STATES V.
HALLAHAN, 19 U.S.C.M.A. 46, 41 C.M.R. 46 (1969); UNITED STATES V. HUFF,
19 U.S.C.M.A. 56, 41 C.M.R. 56 (1969); UNITED STATES V. KEATON, 19
U.S.C.M.A. 64, 41 C.M.R. 64 (1969); UNITED STATES V. EASTER, 19
U.S.C.M.A. 68, 41 C.M.R. 68 (1969); UNITED STATES V. STEVENSON, 19
U.S.C.M.A. 69, 41 C.M.R. 69 (1969); UNITED STATES V. EVERSON, 19
U.S.C.M.A. 70, 41 C.M.R. 70 (1969); UNITED STATES V. FRYMAN, 19
U.S.C.M.A. 71, 41 C.M.R. 71 (1969); UNITED STATES V. HIGGINBOTHAM, 19
U.S.C.M.A. 73, 41 C.M.R. 73 (1969); UNITED STATES V. ADAMS, 19
U.S.C.M.A. 75, 41 C.M.R. 75 (1969); UNITED STATES V. WYSINGLE, 19
U.S.C.M.A. 81, 41 C.M.R. 81 (1969); UNITED STATES V. GILL, 19
U.S.C.M.A. 93, 41 C.M.R. 93 (1969); UNITED STATES V. MCGONIGAL, 19
U.S.C.M.A. 94, 41 C.M.R. 94 (1969); UNITED STATES V. FIELDS, 19
U.S.C.M.A. 119, 41 C.M.R. 119 (1969); UNITED STATES V. BRYAN, 19
U.S.C.M.A. 184, 41 C.M.R. 184 (1970); UNITED STATES V. BLACKWELL, 19
U.S.C.M.A. 196, 41 C.M.R. 196 (1970); MERCER V. DILLON, 19 U.S.C.M.A.
264, 41 C.M.R. 264 (1970); UNITED STATES V. PETERSON, 19 U.S.C.M.A.
319, 41 C.M.R. 319 (1970); GOSA V. UNITED STATES, 19 U.S.C.M.A. 327, 41
C.M.R. 327 (1970); WRIGHT V. UNITED STATES, 19 U.S.C.M.A. 328, 41
C.M.R. 328, 41 C.M.R. 328 (1970); HOOPER V. LAIRD, 19 U.S.C.M.A. 329,
41 C.M.R. 329 (1970); UNITED STATES V. HAAGENSON, 19 U.S.C.M.A. 332, 41
C.M.R. 332 (1970); IN RE WATSON, 19 U.S.C.M.A. 401, 42 C.M.R. 3 (1970);
BRANT V. UNITED STATES, 19 U.S.C.M.A. 493, 42 C.M.R. 95 (1970); UNITED
STATES V. DANIELS, 19 U.S.C.M.A. 529, 42 C.M.R. 131 (1970); UNITED
STATES V. WILLS, 20 U.S.C.M.A. 8, 42 C.M.R. 200 (1970); UNITED STATES
V. LOVEJOY, 20 U.S.C.M.A. 18, 42 C.M.R. 210 (1970); UNITED STATES V.
ORTIZ, 20 U.S.C.M.A. 21, 42 C.M.R. 213 (1970); UNITED STATES V.
HARGRAVE, 20 U.S.C.M.A. 27, 42 C.M.R. 219 (1970); UNITED STATES V.
DAVIS, 20 U.S.C.M.A. 27, 42 C.M.R. 219 (1970); UNITED STATES V. SNYDER,
20 U.S.C.M.A. 102, 42 C.M.R. 294 (1970); UNITED STATES V. MORLEY, 20
U.S.C.M.A. 179, 43 C.M.R. 19 (1970). 

/9/  RAPE IS SPECIFIED IN ART. 120(A): 

"SEC. 920.  ART. 120.  RAPE AND CARNAL KNOWLEDGE. 

"(A) ANY PERSON SUBJECT TO THIS CHAPTER WHO COMMITS AN ACT OF SECUAL
INTERCOURSE WITH A FEMALE NOT HIS WIFE, BY FORCE AND WITHOUT HER
CONSET, IS GUILTY OF RAPE AND SHALL BE PUNISHED BY DEATH OR SUCH OTHER
PUNISHMENT AS A COURT-MARTIAL MAY DIRECT." 

KIDNAPING IS NOT SPECIFICALLY MENTIONED IN THE CODE.  THE CHARGE FOR
THAT OFFENSE, THEREFORE, WAS LIAD UNDER ART. 134, THE GENERAL ARTICLE: 

"SEC. 934.  ART. 134.  GENERAL ARTICLE. 

"THOUGH NOT SPECIFICALLY MENTIONED IN THIS CHAPTER, ALL DISORDERS
AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINES IN THE
ARMED FORCES, ALL CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE ARMED
FORCES, AND CRIMES AND OFFENSES NOT CAPITAL, OF WHICH PERSONS SUBJECT
TO THIS CHAPTER MAY BE GUILTY, SHALL BE TAKEN COGNIZANCE OF BY A
GENERAL, SPECIAL, OR SUMMARY COURT-MARTIAL, ACCORDING TO THE NATURE AND
DEGREE OF THE OFFENSE, AND SHALL BE PUNISHED AT THE DISCRETION OF THAT
COURT." 

/10/  NOW THE COURT OF MILITARY REVIEW.  82 STAT. 1341, 10 U.S.C.
866 (1964 ED., SUPP. V). 

/11/  WE ARE ADVISED BY THE PARTIES THAT RELFORD WAS RELEASED ON
PAROLE ON MAY 20, 1970. 

/12/  PETITIONER'S BRIEF 9. 

/13/  PETITIONER'S REPLY BRIEF 2. 

/14/  THE SOLICITOR GENERAL SUPPLIED THE FOLLOWING DATA RELATIVE TO
SELECTED TYPES OF OFFENSES OVER WHICH THE ARMY ASSUMED JURISDICTION IN
1967:  (TABLE OMITTED) 

JUDSON W. DETRICK, BY APPOINTMENT OF THE COURT, 397 U.S. 1020, ARGUED
THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR RESPONDENT.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON, DEPUTY
SOLICITOR GENERAL SPRINGER, BEATRICE ROSENBERG, AND ROGER A. PAULEY. 
..END :











BAIRD V. STATE BAR OF ARIZONA, 401 U.S. 1 


       BAIRD V. STATE BAR OF ARIZONA

        CERTIORARI TO THE SUPREME COURT OF ARIZONA

        NO. 15.  ARGUED DECEMBER 8-9, 1969-- REARGUED OCTOBER 14,

           1970-- DECIDED FEBRUARY 23, 1971 


PETITIONER, WHO HAD PASSED THE ARIZONA WRITTEN BAR EXAMINATION,
LISTED ALL THE ORGANIZATIONS TO WHICH SHE BELONGED SINCE AGE 16 ON THE
BAR COMMITTEE QUESTIONNAIRE, BUT REFUSED TO ANSWER THE QUESTION (NO.
27) WHETHER SHE HAD EVER BEEN A MEMBER OF THE COMMUNIST PARTY OR ANY
ORGANIZATION "THAT ADVOCATES OVERTHROW OF THE UNITED STATES GOVERNMENT
BY FORCE OR VIOLENCE."  THE COMMITTEE DECLINED TO PROCESS HER
APPLICATION FURTHER OR RECOMMEND HER ADMISSION TO THE BAR.  THE ARIZONA
SUPREME COURT DENIED HER PETITION FOR AN ORDER TO SHOW CAUSE WHY SHE
SHOULD NOT BE ADMITTED TO PRACTICE LAW.  HELD:  THE JUDGMENT OF THE
ARIZONA SUPREME COURT IS REVERSED AND THE CASE IS REMANDED.  PP. 5-1 . 

REVERSED AND REMANDED. 

MR. JUSTICE BLACK, JOINED BY MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN AND MR. JUSTICE MARSHALL, CONCLUDED THAT VIEWS AND BELIEFS ARE
IMMUNE FROM BAR COMMITTEE INQUISITIONS DESIGNED TO LAY A FOUNDATION FOR
BARRING AN APPLICANT FROM THE PRACTICE OF LAW, WHICH IS A MATTER OF
RIGHT FOR ONE QUALIFIED BY LEARNING AND MORAL CHARACTER.  PP. 5-8. 

(A) A STATE'S POWER TO INQUIRE ABOUT A PERSON'S BELIEFS OR
ASSOCIATIONS IS LIMITED BY THE FIRST AMENDMENT, WHICH PROHIBITS A STATE
FROM EXCLUDING A PERSOM FROM A PROFESSION SOLELY BECAUSE OF MEMBERSHIP
IN A POLITICAL ORGANIZATION OR BECAUSE OF HIS BELIEFS.  PP. 5-6. 

(B) WHILE ARIZONA HAS A LEGITIMATE INTEREST IN DETERMINING WHETHER
PETITIONER'S CHARACTER AND PROFESSIONAL COMPETENCE QUALIFY HER TO
PRACTICE LAW, PETITIONER HAS SUPPLIED THE BAR COMMITTEE WITH EXTENSIVE
PERSONAL AND PROFESSIONAL INFORMATION TO ASSIST ITS DETERMINATION.  PP.
6-7. 

MR. JUSTICE STEWART CONCLUDED THAT QUESTION 27 IS CONSTITUTIONALLY
INFIRM UNDER THE FIRST AND FOURTEENTH AMENDMENTS AS IT IS NOT CONFINED
TO KNOWING MEMBERSHIP IN ANY ORGANIZATION THAT ADVOCATES VIOLENT
OVERTHROW OF THE GOVERNMENT, AND IT IS AN INQUIRY INTO THE PROSCRIBED
AREA OF POLITICAL BELIEFS.  PP. 9-10. 

BLACK, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION,
IN WHICH DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED.  STEWART, J.,
FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 9.  HARLAN, J.,
FILED A DISSENTING OPINION, POST, P. 34.  WHITE, J., FILED A DISSENTING
OPINION, POST, P. 10.  BLACKMUN, J., FILED A DISSENTING OPINION, IN
WHICH BURGER, C. J., AND HARLAN AND WHITE, JJ., JOINED, POST, P. 11. 

MR. JUSTICE BLACK ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR.
JUSTICE MARSHALL JOIN. 

THIS IS ONE OF TWO CASES NOW BEFORE US FROM TWO DIFFERENT STATES IN
WHICH APPLICANTS HAVE BEEN DENIED ADMISSION TO PRACTICE LAW SOLELY
BECAUSE THEY REFUSED TO ANSWER QUESTIONS ABOUT THEIR PERSONAL BELIEFS
OR THEIR AFFILIATIONS WITH ORGANIZATIONS THAT ADVOCATE CERTAIN IDEAS
ABOUT GOVERNMENT.  /1/  SHARP CONFLICTS AND CLOSE DIVISIONS HAVE ARISEN
IN THIS COURT CONCERNING THE POWER OF STATES TO REFUSE TO PERMIT
APPLICANTS TO PRACTICE LAW IN CASES WHERE BAR EXAMINERS HAVE BEEN
SUSPICIOUS ABOUT APPLICANTS' LOYALTIES AND THEIR VIEWS ON COMMUNISM AND
REVOLUTION.  THIS HAS BEEN AN INCREASINGLY DIVISIVE AND BITTER ISSUE
FOR SOME YEARS, ESPECIALLY SINCE SENATOR JOSEPH MCCARTHY FROM WISCONSIN
STIRRED UP ANTI-COMMUNIST FEELINGS AND FEARS BY HIS "INVESTIGATIONS" IN
THE EARLY 1950'S.  ONE APPLICANT NAMED RAPHAEL KONIGSBERG WAS DENIED
ADMISSION IN CALIFORNIA AND THIS COURT REVERSED.  KONIGSBERG V. STATE
BAR, 353 U.S. 252 (1957).  THE STATE NEVERTHELESS DENIED HIM ADMISSION
A SECOND TIME, AND THIS COURT THEN AFFIRMED BY A 5-TO-4 DECISION.  366
U.S. 36 (1961).  AN APPLICANT NAMED RUDOLPH SCHWARE WAS DENIED
ADMISSION IN NEW MEXICO AND THIS COURT REVERSED, WITH FIVE JUSTICES
AGREEING ON ONE OPINION, THREE JUSTICES ON ANOTHER OPINION, AND ONE NOT
PARTICIPATING.  SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232
(1957).  IN ANOTHER CASE AN APPLICANT NAMED GEORGE ANASTAPLO WAS DENIED
ADMISSION IN ILLINOIS ON GROUNDS SIMILAR TO THOSE INVOLVED IN
KONIGSBERG AND SCHWARE, AND THE DENIAL WAS AFFIRMED BY A 5-TO-4
MARGIN.  IN RE ANASTAPLO, 366 U.S. 82 (1961).  SEE ALSO IN RE SUMMERS,
325 U.S. 561 (1945).  WITH SHARP DIVISIONS IN THIS COURT, OUR DOCKET
AND THOSE OF THE COURTS OF APPEALS HAVE BEEN FILED FOR YEARS WITH
LITIGATION INVOLVING INQUISITIONS ABOUT BELIEFS AND ASSOCIATIONS AND
REFUSALS TO LET PEOPLE PRACTICE LAW AND HOLD PUBLIC OR EVEN PRIVATE
JOBS SOLELY BECAUSE PUBLIC AUTHORITIES HAVE BEEN SUSPICIOUS OF THEIR
IDEAS.  /2/  USUALLY THESE DENIALS OF EMPLOYMENT HAVE NOT BEEN BASED ON
ANY OVERT ACTS OF MISCONDUCT OR LAWLESSNESS, AND THE LITIGATION HAS
CONTINUED TO RAISE QUESTIONS OF ALLEGED VIOLATIONS OF THE FIRST
AMENDMENT AND OTHER GUARANTEES OF THE BILL OF RIGHTS.  /3/ 

THE FOREGOING CASES AND OTHERS CONTAIN THOUSANDS OF PAGES OF
CONFUSING FORMULAS, REFINED REASONINGS, AND PUZZLING HOLDINGS THAT
TOUCH ON THE SAME SUSPICIONS AND FEARS ABOUT CITIZENSHIP AND LOYALTY. 
HOWEVER WE HAVE CONCLUDED THE BEST WAY TO HANDLE THIS CASE IS TO
NARRATE ITS SIMPLE FACTS AND THEN RELATE THEM TO THE 45 WORDS THAT MAKE
UP THE FIRST AMENDMENT. 

THESE ARE THE FACTS. 

THE PETITIONER, SARA BAIRD, GRADUATED FROM LAW SCHOOL AT STANFORD
UNIVERSITY IN CALIFORNIA IN 1967.  SO FAR AS THE RECORD SHOWS THERE IS
NOT NOW AND NEVER HAS BEEN A SINGLE MARK AGAINST HER MORAL CHARACTER. 
SHE HAS TAKEN THE EXAMINATION PRESCRIBED BY ARIZONA, AND THE ANSWER OF
THE STATE ADMITS THAT SHE SATISFACTORILY PASSED IT.  AMONG THE
QUESTIONS SHE ANSWERED WAS NO. 25, WHICH CALLED ON HER TO REVEAL ALL
ORGANIZATIONS WITH WHICH SHE HAD BEEN ASSOCIATED SINCE SHE REACHED 16
YEARS OF AGE.  /4/  THIS QUESTION SHE ANSWERED TO THE SATISFACTION OF
THE ARIZONA BAR COMMITTEE.  COMMITTEE.  CONSEQUENTLY THERE IS NO CHARGE
OR INTIMATION THAT MRS. BAIRD HAS NOT LISTED THE ORGANIZATIONS TO WHICH
SHE HAS BELONGED SINCE BECOMING 16.  IN ADDITION, HOWEVER, SHE WAS
ASKED TO STATE WHETHER SHE HAD EVER BEEN A MEMBER OF THE COMMUNIST
PARTY OR ANY ORGANIZATION "THAT ADVOCATES OVERTHROW OF THE UNITED
STATES GOVERNMENT BY FORCE OR VIOLENCE."  /5/  WHEN SHE REFUSED TO
ANSWER THIS QUESTION, THE COMMITTEE DECLINED TO PROCESS HER APPLICATION
FURTHER OR RECOMMEND HER ADMISSION TO THE BAR.  /6/  THE ARIZONA
SUPREME COURT THEN DENIED HER PETITION FOR AN ORDER TO THE COMMITTEE TO
SHOW CAUSE WHY SHE SHOULD NOT BE ADMITTED TO PRACTICE LAW.  WE GRANTED
CERTIORARI.  394 U.S. 957. 

IN ARIZONA IT IS PERJURY TO ANSWER THE BAR COMMITTEE'S QUESTIONS
FALSELY AND PERJURY IS PUNISHABLE AS A FELONY.  ARIZ. REV. STAT. ANN.
SEC. 13-561 (1956).  IN EFFECT THIS YOUNG LADY WAS ASKED BY THE STATE
TO MAKE A GUESS AS TO WHETHER ANY ORGANIZATION TO WHICH SHE EVER
BELONGED "ADVOCATES OVERTHROW OF THE UNITED STATES GOVERNMENT BY FORCE
OR VIOLENCE."  THERE MAY WELL BE PROVISIONS OF THE FEDERAL CONSTITUTION
OTHER THAN THE FIRST AMENDMENT THAT WOULD PROTECT AN APPLICANT TO A
STATE BAR FROM BEING SUBJECTED TO A QUESTION POTENTIALLY SO HAZARDOUS
TO HER LIBERTY.  BUT WHETHER OR NOT THERE ARE OTHER PROVISIONS THAT
PROTECT HER, WE THINK THE FIRST AMENDMENT DOES SO HERE.  THAT
AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH, FORBIDS ANY
"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 . . . "  MR. JUSTICE
ROBERTS, IN REFERRING TO THE FIRST AMENDMENT'S GUARANTEE OF FREEDOM OR
RELIGION, AID: 

"THUS THE AMENDMENT EMBRACES TWO CONCEPTS,-- FREEDOM TO BELIEVE AND
FREEDOM TO ACT.  THE FIRST IS ABSOLUTE BUT, IN THE NATURE OF THINGS,
THE SECOND CANNOT BE.  CONDUCT REMAINS SUBJECT TO REGULATION FOR THE
PROTECTION OF SOCIETY."  CANTWELL V. CONNECTICUT, 310 U.S. 296, 303-304
(1940).  SEE ALSO SCHNEIDER V. STATE, 308 U.S. 147, 160-161 (1939);
WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 642
(1943).  AND WE HAVE MADE IT CLEAR THAT:  "THIS CONJUNCTION OF
LIBERTIES IS NOT PECULIAR TO RELIGIOUS ACTIVITY AND INSTITUTIONS
ALONE.  THE FIRST AMENDMENT GIVES FREEDOM OF MIND THE SAME SECURITY AS
FREEDOM OF CONSCIENCE."  THOMAS V. COLLINS, 323 U.S. 516, 531 (1945). 
THE PROTECTION OF THE FIRST AMENDMENT ALSO EXTENDS TO THE RIGHT OF
ASSOCIATION.  AS WE SAID IN SCHNEIDER V. SMITH, 390 U.S. 17, 25
(1968): 

"THE FIRST AMENDMENT'S BAN AGAINST CONGRESS 'ABRIDGING' FREEDOM OF
SPEECH, THE RIGHT PEACEABLY TO ASSEMBLE AND TO PETITION, AND THE
'ASSOCIATIONAL FREEDOM' . . . THAT GOES WITH THOSE RIGHTS CREATE A
PRESERVE WHERE THE VIEWS OF THE INDIVIDUAL ARE MADE INVIOLATE."  SEE
ALSO SHELTON V. TUCKER, 364 U.S. 479, 485-487 (1960); BATES V. LITTLE
ROCK, 361 U.S. 516 (1960); NAACP V. ALABAMA, 357 U.S. 449 (1958). 

THE FIRST AMENDMENT'S PROTECTION OF ASSOCIATION PROHIBITS A STATE
FROM EXCLUDING A PERSON FROM A PROFESSION OR PUNISHING HIM SOLELY
BECAUSE HE IS A MEMBER OF A PARTICULAR POLITICAL ORGANIZATION OR
BECAUSE HE HOLDS CERTAIN BELIEFS.  UNITED STATES V. ROBEL, 389 U.S.
258, 266 (1967); KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589, 607
(1967).  SIMILARLY, WHEN A STATE ATTEMPTS TO MAKE INQUIRIES ABOUT A
PERSON'S BELIEFS OR ASSOCIATIONS, ITS POWER IS LIMITED BY THE FIRST
AMENDMENT.  BORAD AND SWEEPING STATE INQUIRIES INTO THESE PROTECTED
AREAS, AS ARIZONA HAS ENGAGED IN HERE, DISCOURAGE CITIZENS FROM
EXERCISING RIGHTS PROTECTED BY THE CONSTITUTION.  SHELTON V. TUCKER,
SUPRA; GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S.
539 (1963); CF. SPEISER V. RANDALL, 357 U.S. 513 (1958). 

WHEN A STATE SEEKS TO INQUIRE ABOUT AN INDIVIDUAL'S BELIEFS AND
ASSOCIATIONS A HEAVY BURDEN LIES UPON IT TO SHOW THAT THE INQUIRY IS
NECESSARY TO PROTECT A LEGITIMATE STATE INTEREST.  GIBSON V. FLORIDA
LEGISLATIVE INVESTIGATION COMMITTEE, SUPRA, AT 546.  OF COURSE ARIZONA
HAS A LEGITIMATE INTEREST IN DETERMINING WHETHER PETITIONER HAS THE
QUALITIES OF CHARACTER AND THE PROFESSIONAL COMPETENCE REQUISITE TO THE
PRACTICE OF LAW.  BUT HERE PETITIONER HAS ALREADY SUPPLIED THE
COMMITTEE WITH EXTENSIVE PERSONAL AND PROFESSIONAL INFORMATION TO
ASSIST ITS DETERMINATION.  BY HER ANSWERS TO QUESTIONS OTHER THAN NO.
25, AND HER LISTING OF FORMER EMPLOYERS, LAW SCHOOL PROFESSORS, AND
OTHER REFERENCES, SHE HAS MADE AVAILABLE TO THE COMMITTEE THE
INFORMATION RELEVANT TO HER FITNESS TO PRACTICE LAW.  /7/  AND WHATEVER
JUSTIFICATION MAY BE OFFERED, A STATE MAY NOT INQUIRE ABOUT A MAN'S
VIEWS OR ASSOCIATIONS SOLELY FOR THE PURPOSE OF WITHHOLDING A RIGHT OR
BENEFIT BECAUSE OF WHAT HE BELIEVES. 

MUCH HAS BEEN WRITTEN ABOUT THE APPLICATION OF THE FIRST AMENDMENT
TO CASES WHERE PENALTIES HAVE BEEN IMPOSED ON PEOPLE BECAUSE OF THEIR
BELIEFS.  SOME OF WHAT HAS BEEN WRITTEN IS RECONCILABLE WITH WHAT WE
HAVE SAID HERE AND SOME OF IT IS NOT.  WITHOUT DETAILED REFERENCE TO
ALL PRIOR CASES, IT IS SUFFICIENT TO SAY WE HOLD THAT VIEWS AND BELIEFS
ARE IMMUNE FROM BAR ASSOCIATION INQUISITIONS DESIGNED TO LAY A
FOUNDATION FOR BARRING AN APPLICANT FROM THE PRACTICE OF LAW.  CLEARLY
ARIZONA HAS ENGAGED IN SUCH QUESTIONING HERE.  /8/ 

THE PRACTICE OF LAW IS NOT A MATTER OF GRACE, BUT OF RIGHT FOR ONE
WHO IS QUALIFIED BY HIS LEARNING AND HIS MORAL CHARACTER.  SEE SCHWARE
V. BOARD OF BAR EXAMINERS, SUPRA, AND EX PARTE GARLAND, 4 WALL.  333
1867).  THIS RECORD IS WHOLLY BARREN OF ONE WORD, SENTENCE, OR
PARAGRAPH THAT TENDS TO SHOW THIS LADY IS NOT MORALLY AND
PROFESSIONALLY FIT TO SERVE HONORABLY AND WELL AS A MEMBER OF THE LEGAL
PROFESSION.  IT WAS ERROR NOT TO PROCESS HER APPLICATION AND NOT TO
ADMIT HER TO THE ARIZONA BAR.  THE JUDGMENT OF THE ARIZONA SUPREME
COURT IS REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE OTHER IS NO. 18, IN RE STOLAR, OST, P. 23.  SEE ALSO NO.
49, LAW STUDENTS CIVIL RIGHTS RESEARCH COUNCIL V. WADMOND, POST, P.
154. 

/2/  SEE, E.G., ADLER V. BOARD OF EDUCATION, 342 U.S. 485 (1952);
BEILAN V. BOARD OF EDUCATION, 357 U.S. 399 (1958); ELFBRANDT V.
RUSSELL, 384 U.S. 11 (1966); KEYISHIAN V. BOARD OF REGENTS, 385 U.S.
589 (1967); UNITED STATES V. ROBEL, 389 U.S. 258 (1967). 

/3/  SEE THE CASES CITED IN N. 2, SUPRA.  SEE ALSO SHELTON V.
TUCKER, 364 U.S. 479 (1960); AMERICAN COMMUNICATIONS ASSN. V. DOUDS,
339 U.S. 382, 445 (1950) (BLACK, J., DISSENTING); CF. BATES V. LITTLE
ROCK, 361 U.S. 516 (1960); SPEISER V. RANDALL, 357 U.S. 513 (1958);
WILKINSON V. UNITED STATES, 365 U.S. 399 (1961); NAACP V. ALABAMA, 357
U.S. 449 (1958); BRANDENBURG V. OHIO, 395 U.S. Y44 (1969). 

/4/  APP. 18. 

/5/  QUESTION NO. 27, APP. 18. 

/6/  RESPONSE OF THE COMMITTEE ON EXAMINATIONS AND ADMISSIONS TO
ORDER TO SHOW CAUSE.  APP. 4. 

/7/  RESPONDENT HAS ARGUED THAT EVEN WHEN AN APPLICANT HAS ANSWERED
QUESTION 25, LISTING THE ORGANIZATIONS TO WHICH SHE HAS BELONGED SINCE
THE AGE OF 16, QUESTION 27 STILL SERVES A USEFUL AND LEGITIMATE
FUNCTION.  RESPONDENT URGES: 

"ASSUME AN ANSWER INCLUDING AN ORGANIZATION BY NAME SUCH AS 'THE SONS
AN DAUGHTERS OF I WILL ARISE.'  THIS COULD TRULY BE A CHRISTIAN GROUP
WITH RELIGIOUS OBJECTIVES.  BUT ALSO IT COULD BE AN ORGANIZATION
DEVOTED TO THE OBJECTIVES OF LENIN, STALIN OR ANY OTHER DECEASED PERSON
WHOSE TEACHINGS AND OBJECTIVES WERE NOT CONDUCIVE TO THE CONTINUED
SECURITY AND WELFARE OF OUR GOVERNMENT AND WAY OF LIFE."  BRIEF FOR
RESPONDENT 8. 

THE ORGANIZATIONS PETITIONER LISTED IN RESPONSE TO QUESTION 25 WERE:
CHURCH CHOIR; GIRL SCOUTS; GIRLS ATHLETIC ASSOCIATION; YOUNG
REPUBLICANS, YOUNG DEMOCRATS; STANFORD LAW ASSOCIATION; LAW SCHOOL
CIVIL RIGHTS RESEARCH COUNCIL.  RESPONDENT DOES NOT STATE WHICH OF
THESE ORGANIZATIONS MAY THREATEN THE SECURITY OF THE REPUBLIC. 

/8/  THE COMMITTEE URGES THAT IT IS ENTITLED TO DEMAND AN ANSWER TO
QUESTION 27 BECAUSE: 

"UNLESS WE ARE TO CONCLUDE THAT ONE WHO TRULY AND SINCERELY BELIEVES
IN THE OVERTHROW OF THE UNITED STATES GOVERNMENT BY FORCE AND VIOLENCE
IS ALSO QUALIFIED TO PRACTICE LAW IN OUR ARIZONA COURTS, THEN AN ANSWER
TO THIS QUESTION IS INDEED APPROPRIATE.  THE COMMITTEE AGAIN EMPHASIZES
THAT A MERE ANSWER OF 'YES' WOULD NOT LEAD TO AN AUTOMATIC REJECTION OF
THE APPLICATION.  IT WOULD LEAD TO AN INVESTIGATION AND INTERROGATION
AS TO WHETHER OR NOT THE APPLICANT PRESENTLY ENTERATINS THE VIEW THAT A
VIOLENT OVERTHROW OF THE UNITED STATES GOVERNMENT IS SOMETHING TO BE
SOUGHT AFTER.  IF THE ANSWER TO THIS INQUIRY WAS 'YES' THEN INDEED WE
WOULD REJECT THE APPLICATION AND RECOMMEND AGAINST ADMISSION." 
MEMORANDUM IN SUPPORT OF RESPONSE TO PETITION FOR ORDER TO SHOW CAUSE,
APP. 5-6. 

(FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 34.) 

MR. JUSTICE STEWART, CONCURRING IN JUDGMENT. 

THE COURT HAS HELD THAT UNDER SOME CIRCUMSTANCES SIMPLE INQUIRY INTO
PRESENT OR PAST COMMUNIST PARTY MEMBERSHIP OF AN APPLICANT FOR
ADMISSION TO THE BAR IS NOT AS SUCH UNCONSTITUTIONAL.  KONIGSBERG V.
STATE BAR, 366 U.S. 36; IN RE ANASTAPLO, 366 U.S. 82. 

QUESTION 27, HOWEVER, GOES FURTHER AND ASKS APPLICANTS WHETHER THEY
HAVE EVER BELONGED TO ANY ORGANIZATION "THAT ADVOCATES OVERTHROW OF THE
UNITED STATES GOVERNMENT BY FORCE OR VIOLENCE."  OUR DECISIONS HAVE
MADE CLEAR THAT SUCH INQUIRY MUST BE CONFINED TO KNOWING MEMBERSHIP TO
SATISFY THE FIRST AND FOURTEENTH AMENDMENTS.  SEE, E.G., UNITED STATES
V. ROBEL, 389 U.S. 258, 265-266; LAW STUDENTS CIVIL RIGHTS RESEARCH
COUNCIL V. WADMOND, POST, P. 154, AT 165.  IT FOLLOWS FROM THESE
DECISIONS THAT MERE MEMBERSHIP IN AN ORGANIZATION CAN NEVER, BY ITSELF,
BE SUFFICIENT GROUND FOR A STATE'S IMPOSITION OF CIVIL DISABILITIES OR
CRIMINAL PUNISHMENT.  SUCH MEMBERSHIP CAN BE QUITE DIFFERENT FROM
KNOWING MEMBERSHIP IN AN ORGANIZATION ADVOCATING THE OVERTHROW OF THE
GOVERNMENT BY FORCE OR VIOLENCE, ON THE PART OF ONE SHARING THE
SPECIFIC INTENT TO FURTHER THE ORGANIZATION'S ILLEGAL GOALS.  SEE
SCALES V. UNITED STATES, 367 U.S. 203, 228-230; LAW STUDENTS CIVIL
RIGHTS RESEARCH COUNCIL V. WADMOND, SUPRA.     THERE IS A FURTHER
CONSTITUTIONAL INFIRMITY IN ARIZONA'S QUESTION 27.  THE RESPONDENT
STATE BAR IS THE AGENCY ENTRUSTED WITH THE ADMINISTRATION OF THE
STANDARDS FOR ADMISSION TO PRACTICE LAW IN ARIZONA.  AND THE
RESPONDENT'S EXPLANATION OF ITS PURPOSE IN ASKING THE QUESTION MAKES
CLEAR THAT THE QUESTION MUST BE TREATED AS AN INQUIRY INTO POLITICAL
BELIEFS.  FOR THE RESPONDENT EXPLICITLY STATES THAT IT WOULD RECOMMEND
DENIAL OF ADMISSION SOLELY BECAUSE OF AN APPLICANT'S BELIEFS THAT THE
RESPONDENT FOUND OBJECTIONABLE.  CF. WADMOND, SUPRA, AT 162-163.  YET
THE FIRST AND FOURTEENTH AMENDMENTS BAR A STATE FROM ACTING AGAINST ANY
PERSON MERELY BECAUSE OF HIS BELIEFS.  E.G., WEST VIRGINIA BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624, 642; CANTWELL V. CONNECTICUT, 310
U.S. 296, 303-304.  CF. CARRINGTON V. RASH, 380 U.S. 89, 94. 

MR. JUSTICE WHITE, DISSENTING.  /1/ 

I AM QUITE UNABLE TO JOIN THE OPINIONS OF MR. JUSTICE BLACK ANNOUNCING
THE JUDGMENTS OF THE COURT IN THESE CASES.  IT IS MY VIEW THAT THE
CONSTITUTION DOES NOT REQUIRE A STATE TO ADMIT TO PRACTICE A LAWYER WHO
BELIEVES IN VIOLENCE AND INTENDS TO IMPLEMENT THAT BELIEF IN HIS
PRACTICE OF LAW AND ADVICE TO CLIENTS.  I ALSO BELIEVE THAT THE STATE
MAY ASK AN APPLICANT PRELIMINARY QUESTIONS THAT WILL PERMIT FURTHER
INVESTIGATION AND REASONED, ARTICULATED JUDGMENT AS TO WHETHER THE
APPLICANT WILL OR WILL NOT ADVISE LAWLESS CONDUCT AS A PRACTICING
LAWYER. 

ARIZONA HAS NO INTENTION OF BARRING APPLICANTS BASED ON BELIEF
ALONE.  THIS MY BROTHER BLACKMUN MAKES QUITE CLEAR.  ITS INQUIRIES WERE
DESIGNED TO ASCERTAIN WHETHER AN APPLICANT EXPECTS ACTIVELY TO SUPPORT
ILLEGAL VIOLENCE OR ESPOUSES AN ACTIVIST ROLE IN IMPLEMENTING THAT
IDEA. 

OHIO TAKES MUCH THE SAME APPROACH, AND IN MY VIEW BOTH STATES ARE
RIGHT.  IF, AS A PREFACE TO FURTHER QUESTIONS, NEW YORK MAY ASK WHETHER
AN APPLICANT IS A KNOWING MEMBER OF THE COMMUNIST PARTY, ALTHOUGH THAT
FACT ALONE WOULD NOT BE GROUND FOR EXCLUSION, SEE LAW STUDENTS CIVIL
RIGHTS RESEARCH COUNCIL V. WADMOND, POST, P. 154, ARIZONA AND OHIO MAY
ASK ABOUT SIMPLE MEMBERSHIP FOR THE SAME JUSTIFIABLE REASON.  AND IF
INVESTIGATION REVEALS THE APPLICANT TO BE ACTIVELY FURTHERING THE
ILLEGAL ACTIVITIES OF ANY GROUP OR TO BE WITHOUT COMPREHENSION THAT
ADVISING LAWLESS CONDUCT IS INCOMPATIBLE WITH PROFESSIONAL STANDARDS,
THE STATE SHOULD BE ABLE TO DENY ADMISSION TO THE BAR. 

AS MR. JUSTICE BLACK'S OPINIONS HASTEN TO ASSURE US, A STATE MAY
ASSURE ITSELF OF AN APPLICANT'S "QUALITIES OF CHARACTER" AND
EDUCATIONAL QUALIFICATIONS.  ACCORDINGLY, IT WOULD BE ENTITLED TO MAKE
AN ASSESSMENT OF HIS "HONESTY" AND REFUSE TO LICENSE HIM IF FIRMLY
CONVINCED BY HIS RESPONSES OR OTHER RECORD EVIDENCE THAT HE WOULD NOT
CONFORM TO THE STANDARDS OF INTEGRITY EXPECTED OF THE MEMBERS OF THE
BAR.  NEITHER SHOULD IT BE REQUIRED TO ADMIT TO PRACTICE A PERSON WHO
BELIEVES IN VIOLENT CONDUCT TO ACHIEVE SOCIAL, POLITICAL, OR OTHER ENDS
AND WHO IS CURRENTLY AND ACTIVELY SUPPORTING SUCH ACTIVITIES OR WHO
EXPECTS TO DO SO IN THE COURSE OF ADVISING CLIENTS IN HIS PROFESSIONAL
ROLE.  I THUS SEE NO CONSTITUTIONAL BASIS FOR FORBIDDING THE ASKING OF
PERFECTLY RELEVANT QUESTIONS DESIGNED TO ASCERTAIN WHETHER AN APPLICANT
CONSIDERS IT THE PROPER ROLE OF THE LAWYER, AS PRACTITIONER, TO ADVISE
AND ADVOCATE VIOLENCE AS A MEANS FOR SETTLING DISPUTES OR ACHIEVING
SOCIAL OR POLITICAL ENDS.  I THEREFORE DISSENT FROM THE JUDGMENTS IN
BOTH OF THESE CASES. 

/1/  (THIS OPINION APPLIES ALSO TO NO. 18, IN RE STOLAR, POST, P.
23.) 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
HARLAN, AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THIS, FOR ME, IS NOT AT ALL A CASE INVOLVING MERE PERSONAL BELIEFS
ON THE PART OF SARA BAIRD. 

I HAVE NECESSARILY ASSUMED, AND I TRUST NOT ERRONEOUSLY, THAT
KONIGSBERG V. STATE BAR, 366 U.S. 36, AND IN RE ANASTAPLO, 366 U.S. 82,
BOTH DECIDED ON APRIL 24, 1961, HAVE REMAINED GOOD LAW DESPITE THE
COURT'S THEN CLOSE DIVISION (JUSTICE HARLAN AND JUSTICES FRANKFURTER,
CLARK, WHITTAKER, AND STEWART IN THE MAJORITY; JUSTICE BLACK AND CHIEF
JUSTICE WARREN, AND JUSTICES DOUGLAS AND BRENNAN, DISSENTING).  NEITHER
CASE HAS EVER BEEN EXPRESSLY OVERRULED.  NEITHER IS NOW EXPRESSLY
OVERRULED.  IN EACH OF THE CASES THE COURT DECIDED, AT THE VERY LEAST,
AS MR. JUSTICE STEWART PUTS IT IN HIS SEPARATE CONCURRENCE HERE, THAT
"UNDER SOME CIRCUMSTANCES SIMPLE INQUIRY INTO PRESENT OR PAST COMMUNIST
PARTY MEMBERSHIP OF AN APPLICANT FOR ADMISSION TO THE BAR IS NOT AS
SUCH UNCONSTITUTIONAL." 

I THINK THE COURT REALLY DECIDED MORE THAN THAT.  I SAY THIS BECAUSE
(A) IN KONIGSBERG THE APPLICANT HAD "REITERATED UNEQUIVOCALLY HIS
DISBELIEF IN VIOLENT OVERTHROW, AND STATED THAT HE HAD NEVER KNOWINGLY
BEEN A MEMBER OF ANY ORGANIZATION WHICH ADVOCATED SUCH ACTION," 366
U.S.,AT 39; (B) THE COURT STATED THAT IT THOUGHT IT "CLEAR THAT THE
FOURTEENTH AMENDMENT'S PROTECTION AGAINST ARBITRARY STATE ACTION DOES
NOT FORBID A STATE FROM DENYING ADMISSION TO A BAR APPLICANT SO LONG AS
HE REFUSES TO PROVIDE UNPRIVILEGED ANSWERS TO QUESTIONS HAVING A
SUBSTANTIAL RELEVANCE TO HIS QUALIFICATIONS," 366 U.S.,AT 44; THAT: 

     "WE LIKEWISE REGARD AS UNTENABLE PETITIONER'S CONTENTIONS THAT

  THE QUESTIONS AS TO COMMUNIST PARTY MEMBERSHIP WERE MADE

  IRRELEVANT EITHER BY THE FACT THAT BARE, INNOCENT MEMBERSHIP IS

  NOT A GROUND OF DISQUALIFICATION OR BY PETITIONER'S WILLINGNESS

  TO ANSWER SUCH ULTIMATE QUESTIONS AS WHETHER HE HIMSELF BELIEVED

  IN VIOLENT OVERTHROW OR KNOWINGLY BELONGED TO AN ORGANIZATION

  ADVOCATING VIOLENT OVERTHROW," 366 U.S.,AT 46;

AND THAT: 

     "IT WOULD INDEED BE DIFFICULT TO ARGUE THAT A BELIEF, FIRM

  ENOUGH TO BE CARRIED OVER INTO ADVOCACY, IN THE USE OF ILLEGAL

MEANS TO CHANGE THE FORM OF THE STATE OR FEDERAL GOVERNMENT IS AN

  UNIMPORTANT CONSIDERATION IN DETERMINING THE FITNESS OF

  APPLICANTS FOR MEMBERSHIP IN A PROFESSION IN WHOSE HANDS SO

  LARGELY LIES THE SAFEKEEPING OF THIS COUNTRY'S LEGAL AND

  POLITICAL INSTITUTIONS . . .

        .         .          .          . 

"(WE REGARD THE STATE'S INTEREST IN HAVING LAWYERS WHO ARE DEVOTED
TO THE LAW IN ITS BROADEST SENSE, INCLUDING NOT ONLY ITS SUBSTANTIVE
PROVISIONS, BUT ALSO ITS PROCEDURES FOR ORDERLY CHANGE, AS CLEARLY
SUFFICIENT TO OUTWEIGH THE MINIMAL EFFECT UPON FREE ASSOCIATION
OCCASIONED BY COMPULSORY DISCLOSURE IN THE CIRCUMSTANCES HERE
PRESENTED," 366 U.S.,AT 51-52; AND (C) IN ANASTAPLO IT WAS OBSERVED: 

  "WE HAVE ALSO HELD IN KONIGSBERG THAT THE STATE'S INTEREST IN

  ENFORCING SUCH A RULE AS APPLIED TO REFUSALS TO ANSWER QUESTIONS

  ABOUT MEMBERSHIP IN THE COMMUNIST PARTY OUTWEIGHS ANY DETERRENT

  EFFECT UPON FREEDOM OF SPEECH AND ASSOCIATION, AND HENCE THAT

  SUCH STATE ACTION DOES NOT OFFEND THE FOURTEENTH AMENDMENT."  366

  U.S.,AT 89. 

PETITIONER BAIRD, HOWEVER, ATTACKED THE INTEGRITY OF THESE CASES
BEFORE THE ARIZONA COURT AND AGAIN ATTACKS THEIR INTEGRITY HERE AND
CLAIMS THAT, ALTHOUGH PERHAPS DISTINGUISHABLE, THE CASES "WARRANT . . .
DELIMITING, AND PERHAPS EVEN OVERRULING IN LIGHT OF THE TREND SINCE
1961."  IN MY VIEW, MRS. BAIRD HAS NOW HAD STRIKING SUCCESS IN HER
OVERRULING ENDEAVOR DESPITE THE SEEMING RECOGNITION OF THE TWO CASES IN
THE OPINION OF THE PLURALITY FOR REVERSAL (HEREAFTER PLURALITY) AND THE
SEPARATE CONCURRENCE'S DEFINITE BOW IN THEIR DIRECTION. 

THE PRESENT CASE COMES HERE, AFTER ARGUMENT FOR THE SECOND TIME, IN
A STARK AND CLEAR POSTURE.  MRS. BAIRD, APPLICANT FOR ADMISSION TO THE
BAR OF THE STATE OF ARIZONA, POSSESSOR OF AN ACADEMIC DEGREE FROM
COLORADO COLLEGE, AND POSSESSOR OF A DEGREE IN LAW FROM STANFORD
UNIVERSITY, REFUSES TO ANSWER, OTHER THAN TO SAY "NOT APPLICABLE," THE
27TH INQUIRY OF A QUESTIONNAIRE WHICH THE ARIZONA SUPREME COURT, BY
RULE, HAS MADE A PART OF THE APPLICATION FOR MEMBERSHIP IN THE STATE
BAR.  /1/  THAT QUESTION READS: 

"ARE YOU NOW OR HAVE YOU EVER BEEN A MEMBER OF THE COMMUNIST PARTY
OR ANY ORGANIZATION THAT ADVOCATES OVERTHROW OF THE UNITED STATES
GOVERNMENT BY FORCE OR VIOLENCE?" 

THE APPLICANT BASES THIS REFUSAL (A) ON THE FACT THAT IN HER ANSWER
TO A PRECEDING INQUIRY, THE 25TH, SHE LISTED THE ORGANIZATIONS OF WHICH
SHE HAD BEEN A MEMBER SINCE AGE 16, AND (B) ON THE ASSERTED LEGAL
PROPOSITIONS THAT TO COMPEL HER TO ANSWER IS TO DENY HER FIRST
AMENDMENT RIGHTS OF FREEDOM OF BELIEF AND FREEDOM OF ASSOCIATION, HER
FIFTH AMENDMENT RIGHT NOT TO INCRIMINATE HERSELF, AND HER FOURTEENTH
AMENDMENT RIGHT TO DUE PROCESS. 

IN MY VIEW, APPLICANT BAIRD VASTLY OVERSTATES HER CASE.  ON THIS
RECORD, I WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF ARIZONA IN
DENYING MRS. BAIRD'S PETITION FOR ADMISSION TO PRACTICE LAW IN THE
STATE'S COURTS. 

THERE ARE SEVERAL FACTORS THAT PROMPT MY CONCLUSION: 

1.  MRS. BAIRD IS AN INTELLIGENT AND KNOWLEDGEABLE PERSON.  SHE
HOLDS A COLLEGE DEGREE AND A GRADUATE DEGREE, AND, AS IS ASSUMED HERE,
SHE HAS DEMONSTRATED IN THE BAR EXAMINATION AN ACCEPTABLE KNOWLEDGE AND
MASTERY OF THE LAW.  THERE IS NO CLAIM OF VAGUENESS OR LACK OF
AWARENESS ON HER PART OF PRECISELY WHAT QUESTION 27 MEANT OR OF WHAT IT
WAS INTENDED TO PROBE.  THE APPLICANT OBVIOUSLY KNEW THE SCOPE OF THE
QUESTION AND ITS CONCERN WITH THE PARTY AND WITH FORCEFUL AND VIOLENT
OVERTHROW OF THE GOVERNMENT. 

2.  MRS. BAIRD'S USE OF THE "NOT APPLICABLE" RESPONSE TO QUESTION 27
IS NOT FULLY UNDERSTANDABLE.  OF COURSE, SHE MAY HAVE SO PHRASED THAT
ANSWER HURRIEDLY IN THE PASSING THOUGHT THAT, WITH HER LISTING OF
ORGANIZATIONS IN RESPONSE TO QUESTION 25, BUTTRESSED BY THE STATEMENT,
"THIS LIST INCLUDES ALL ORGANIZATIONS ON THE LIST OBVIOUSLY NOT WITHIN
THE CONTEMPLATION OF QUESTION 27, THE LATTER QUESTION WAS, INDEED, "NOT
APPLICABLE."  AFTER ALL, SHE DID EMPLOY THE SAME "NOT APPLICABLE"
ANSWER ON THE FORM IN NO LESS THAN 16 OTHER PLACES; MOST OF THESE,
BECAUSE OF THEIR CONDITIONAL CONTEXT, COULD WELL HAVE BEEN LEFT BLANK
AND WOULD HAVE BEEN EXPECTED TO BE LEFT BLANK, DESPITE THE GENERAL
INSTRUCTION THAT ALL QUESTIONS WERE TO BE ANSWERED. 

NEVERTHELESS SHE DID RESPOND TO THE INQUIRY IN THAT MANNER AND, AS
HER BRIEF STATES, SHE NOW HAS "DECLINED TO ANSWER" THE QUESTION.  THIS,
THEN, LEAVES THIS LITIGATION IN THE POSTURE WHERE THE RESPONSE TO
QUESTION 27 WAS NOT INADVERTENT AND WAS NOT THE PRODUCT OF ANY
MISUNDERSTANDING OR MISTAKE, WHERE AN ANSWER IS NOW FLATLY REFUSED, AND
WHERE THE APPLICANT, PERHAPS SOMEWHAT DEFIANTLY, IS CONTENT TO HAVE THE
RECORD REMAIN AS IT IS AND TO HAVE HER CASE WON OR LOST ON THAT
RECORD.  THIS IS REMINISCENT OF THE OBSTRUCTIONIST TACTICS CONDEMNED IN
KONIGSBERG AND ANASTAPLO. 

3.  FOR MRS. BAIRD TO SAY THAT BECAUSE SHE HAD ANSWERED QUESTION 25
AND HAD LISTED HER ORGANIZATION MEMBERSHIPS SINCE AGE 16 SHE NEED NOT
RESPOND TO QUESTION 27 IS NO ANSWER AT ALL.  /2/  TO ANSWER THE ONE
QUESTION FULLY AND TO REFUSE TO RESPOND TO THE OTHER EMBRACES AN
OBVIOUS INCONSISTENCY OF POSITION, FOR THE TWO QUESTIONS ARE RELATED. 
FURTHERMORE, THE QUESTIONS ARE NOT DUPLICATIVE.  BY HER REFUSAL TO
ANSWER QUESTION 27, SHE WOULD PLACE ON THE ARIZONA COMMITTEE ON
EXAMINATIONS AND ADMISSIONS /3/  AND ON THE SUPREME COURT OF ARIZONA
THE BURDEN OF DETERMINING WHICH OF THE ORGANIZATIONS SHE LISTED, IF
ANY, WAS AN ARM OF THE COMMUNIST PARTY OR ADVOCATED FORCEFUL OR VIOLENT
OVERTHROW OF THE GOVERNMENT.  THAT, HOWEVER, IS NOT THE TASK OF THE
COMMITTEE OR OF THE ARIZONA SUPREME COURT.  IT IS SARA BAIRD'S TASK. 
IT IS A TRUISM, I THINK, THAT THE COMMUNIST ENDEAVOR WORKS BENEATH THE
SURFACE AS WELL AS IN THE OPEN AND THAT HIGH-SOUNDING NAMES HAVE BEEN
THE FRONT AND THE VERBAL SHIELD FOR SOMETHING VERY DIFFERENT FROM WHAT
THE NAME IMPORTS. 

4.  NO ONE IS IN A BETTER POSITION TO KNOW THE AIM AND PURPOSE AND
ADVOCACY OF AN ORGANIZATION THAN A MEMBER.  CERTAINLY THE COMMITTEE AND
THE ARIZONA SUPREME COURT, WHICH HAVE OTHER THINGS TO DO, ARE NOT
EQUIPPED FOR THE TASK OF CHECKING OUT THE IDENTITY OF EVERY NAMED
ORGANIZATION, ESPECIALLY ONE WHICH MIGHT FOLLOW THE STANDARD OF THE
LESS SAID AND KNOWN, THE BETTER.  AND MRS. BAIRD WOULD PLACE THIS
BURDEN ON THE COMMITTEE BY SUBMITTING PARTIAL ANSWERS.  SHE GIVES THE
APPEARANCE OF PLAYING A GAME.  THE IMPORTANCE OF THE SUBJECT DESERVES
BETTER THAN THAT. 

5.  IT HAS BEEN SAID THAT THE BURDEN IS ON THE APPLICANT. 
APPLICATION OF COURTNEY, 83 ARIX.  231, 233, 319 P.2D 991, 993 (1957). 
BUT A MOST MINIMAL BURDEN IT IS.  HAD SHE ANSWERED "NONE" TO QUESTION
27, THAT WOULD HAVE BEEN THE END OF THE MATTER IN THE ABSENCE OF
OBVIOUS PREVARICATION.  IF SHE WERE IN DOUBT, THE ANSWER "NONE TO MY
KNOWLEDGE" WOULD HAVE ACCOMPLISHED THE SAME RESULT.  SHE CHOSE NEITHER
ANSWER.  SHE CHOSE, INSTEAD, TO REMAIN SILENT AND LESS THAN CANDID. 

6.  THE PLURALITY OPINION, I FEEL, FAILS TO PLACE THE ISSUE IN EXACT
FOCUS.  THIS IS NOT A SITUATION WHERE, AS THAT OPINION STATES, AND EVEN
WOULD DO SO IN A PERJURY CONTEXT, "IN EFFECT THIS YOUNG LADY WAS ASKED
BY THE STATE TO MAKE A GUESS AS TO WHETHER ANY ORGANIZATION TO WHICH
SHE EVER BELONGED 'ADVOCATES OVERTHROW OF THE UNITED STATES GOVERNMENT
BY FORCE OR VIOLENCE.'"  IT FALLS FAR SHORT OF GUESSWORK.  MRS. BAIRD
EITHER KNEW THE ANSWER OR SHE DID NOT KNOW IT.  IF SHE KNEW, SHE
COUPLED HER KNOWLEDGE WITH AN ATTEMPT TO CONCEAL.  IF SHE DID NOT KNOW,
SHE HAD ONLY TO STATE HER LACK OF KNOWLEDGE.  THIS WAS NO "GUESS" AND,
ABSENT THE INTENT TO DECEIVE, IT CERTAINLY WAS NO GUESS FRAUGHT WITH
THE RISKS OF PERJURY.     7.  ALTHOUGH QUESTION 27, CONCEDEDLY, WOULD
HAVE BEEN BETTER PHRASED HAD IT GONE ON TO INQUIRE AS TO THE
APPLICANT'S OWN KNOWING PARTICIPATION IN, AND PROMOTION OF, ILLEGAL
GOALS, A REALISTIC READING OF THE QUESTION DISCLOSES THAT IT IS
DIRECTED NOT AT MERE BELIEF BUT AT ADVOCACY AND AT THE CALL TO VIOLENT
ACTION AND FORCE IN PURSUIT OF THAT ADVOCACY.  CONTRARY TO THE
PLURALITY OPINION'S CONCLUSION AND TO THAT OF THE SEPARATE CONCURRENCE,
I FIND NOTHING IN THIS RECORD THAT INDICATES THAT MRS. BAIRD
AUTOMATICALLY WOULD HAVE BEEN DENIED ADMISSION TO THE BAR HAD SHE
ANSWERED QUESTION 27 IN THE AFFIRMATIVE.  THE RECORD, AND THE
COMMITTEE'S BRIEF HERE, /4/  DISCLOSE EXACTLY THE OPPOSITE.  IN ITS
MEMORANDUM, FILED WITH THE ARIZONA COURT IN SUPPORT OF ITS RESPONSE TO
THE ORDER TO SHOW CAUSE, THE COMMITTEE STATED THAT NO JUDGMENT AS TO
RECOMMENDATION OR NONRECOMMENDATION FOR ADMISSION HAD BEEN MADE; THAT
AN AFFIRMATIVE ANSWER TO QUESTION 27 WOULD LEAD TO FURTHER INQUIRY AS
TO MRS. BAIRD'S EXPECTATION ACTIVELY TO SUPPORT THE OBJECTIVE OF
VIOLENT OVERTHROW; AND THAT, IF HER MEMBERSHIP IS OF A NOMINAL
CHARACTER AND SHE DOES NOT PARTICIPATE IN THE ADVOCACY VIEWS, THERE
WOULD BE NO LEGAL BASIS FOR REFUSING A RECOMMENDATION FOR ADMISSION. 
/5/  THE MATERIAL QUOTED IN THE PLURALITY OPINION'S FOOTNOTE 8 IS FROM
THE BODY OF THE MEMORANDUM; MY READING OF THAT MATERIAL, HOWEVER,
INDICATES ONLY THAT FURTHER INQUIRY IS THEN IN ORDER.  I DO NOT SHARE
THE OPINION'S INTERPRETATION OF THAT MATERIAL AS BEING DIRECTED TO MERE
BELIEF.  THE KEY WORDS ARE WHETHER "VIOLENT OVERTHROW . . . IS
SOMETHING TO BE SOUGHT AFTER."  THAT IS AN INQUIRY INTO WILLINGNESS TO
PARTICIPATE INVIOLENCE. 

8.  THERE IS TALK, OF COURSE, IN THE BRIEFS HERE ABOUT WHETHER
ADMISSION TO THE BAR AND RECEIVING AUTHORITY TO PRACTICE LAW IS A
"RIGHT" OR A "PRIVILEGE."  I AM OLD ENOUGH AND OLD-FASHIONED ENOUGH
ALWAYS TO HAVE REGARDED IT MORE AS A PRIVILEGE THAN AS A RIGHT.  I AT
LEAST THOUGHT THAT WAS THE TRADITION.  A CENTURY AGO MR. JUSTICE FIELD
REFERRED TO THE PRACTICE OF LAW BY A QUALIFIED PERSON AS A RIGHT AND
NOT AS A MATTER OF THE STATE'S GRACE OR FAVOR.  EX PARTE GARLAND, 4
WALL.  333, 379 (1867).  THE ARIZONA COURT HAS SPOKEN IN SIMILAR
TERMS.  APPLICATION OF KLAHR, 102 ARIZ. 529, 531, 433 P.2D 977, 979
(1967).  IT COULD OPPOSITELY BE STATED, WITH JUST AS MUCH ACCURACY, AS
THE BAR IN ITS BRIEF HERE ASSERTS, /6/  THAT "ONE QUALIFIED BY
CHARACTER, INTEGRITY AND LEARNING HAS THE RIGHT TO PRACTICE LAW." 
INDEED, THIS IS PRECISELY THE WAY THE ARIZONA COURT HAS PHRASED IT:
"(THE PRACTICE OF LAW IS NOT A PRIVILEGE BUT A RIGHT, CONDITIONED
SOLELY ON THE REQUIREMENT THAT A PERSON HAVE THE NECESSARY MENTAL,
PHYSICAL AND MORAL QUALIFICATIONS."  APPLICATION OF KLAHR, 102 ARIZ.,AT
531, 433 P.2D,AT 979.  SEE ALSO APPLICATION OF LEVINE, 97 ARIZ. 88, 90
91, 397 P.2D 205, 206-207 (1964), AND APPLICATION OF BURKE, 87 ARIZ.
336, 339, 351 P.2D 169, 172 (1960). 

THE CHARACTERIZATION OF BAR ADMISSION AS A RIGHT OR AS A PRIVILEGE
MAY BE LITTLE MORE THAN AN EXERCISE IN SEMANTICS.  IT SEEMS TO ME THAT,
WHICHEVER IT MAY BE, THE STATE, IN GRANTING THE AUTHORITY TO PRACTICE
LAW, WITH WHAT SURELY IS THE TRUE PRIVILEGE, NOT THE RIGHT, TO BE
ENTRUSTED WITH A CLIENT'S CONFIDENCES, ASPIRATIONS, FREEDOM, LIFE
ITSELF, PROPERTY, AND THE VERY MEANS OF LIVELIHOOD, DEMANDS SOMETHING
MORE OF THE APPLICANT THAN A FORMAL CERTIFICATE OF COMPLETION OF A
COURSE OF LEGAL STUDY AND THE ABILITY ACCEPTABLE TO ANSWER A SERIES OF
QUESTIONS ON A BAR EXAMINATION.  IT PRESUMABLY DEMANDS WHAT
FUNDAMENTALLY IS CHARACTER.  AND IT IS CHARACTER THAT A STATE HOLDS OUT
TO THE PUBLIC WHEN IT AUTHORIZES AN APPLICANT TO PRACTICE LAW. 

9.  JUDGES AND BAR EXAMINERS, OF COURSE, SHOULD HESITATE TO JUDGE
TOO STRICTLY THOSE SEEKING ENTRANCE TO THE PROFESSION.  CERTAINLY THE
IMPATIENCE AND FAR-RANGING ATTITUDES OF YOUTHFUL YEARS ARE NOT, IN
THEMSELVES, DISQUALIFYING.  THAT IS PART OF THE MATURING PROCESS,
ESPECIALLY FOR FUTURE LAWYERS WHO MUST STUDY, EXAMINE, SELECT, AND
DEVELOP THEIR PHILOSOPHIES OF LIFE AND OF THEIR PROFESSION.  MR.
JUSTICE FRANKFURTER EXPRESSED IT WELL: 

"THE BAR HAS NOT ENJOYED PREROGATIVES; IT HAS BEEN ENTRUSTED WITH
ANXIOUS RESPONSIBILITIES . . . FROM A PROFESSION CHARGED WITH SUCH
RESPONSIBILITIES THERE MUST BE EXACTED THOSE QUALITIES OF TRUTH
SPEAKING, OF A HIGH SENSE OF HONOR, OF GRANITE DISCRETION, OF THE
STRICTEST OBSERVANCE OF FIDUCIARY RESPONSIBILITY, THAT HAVE, THROUGHOUT
THE CENTURIES, BEEN COMPENDIOUSLY DESCRIBED AS 'MORAL CHARACTER.' 

        .          .          .          . 

"HISTORY OVERWHELMINGLY ESTABLISHES THAT MANY YOUTHS LIKE THE
PETITIONER WERE DRAWN BY THE MIRAGE OF COMMUNISM DURING THE DEPRESSION
ERA, ONLY TO HAVE EYES LATER OPENED TO REALITY.  SUCH EXPERIENCES NO
DOUBT MAY DISCLOSE A WOOLLY MIND OR NAIVE NOTIONS REGARDING THE
PROBLEMS OF SOCIETY.  BUT FACTS OF HISTORY THAT WE WOULD BE ARBITRARY
IN REJECTING BAR THE PRESUMPTION, LET ALONE AN IRREBUTTABLE
PRESUMPTION, THAT RESPONSE TO FOOLISH, BASELESS HOPES REGARDING THE
BETTERMENT OF SOCIETY MADE THOSE WHO HAD ENTERTAINED THEM BUT WHO LATER
UNDOUBTEDLY CAME TO THEIR SENSES AND THEIR SENSE OF RESPONSIBILITY
'QUESTIONABLE CHARACTERS.'"  SCHWARE V. BOARD OF BAR EXAMINERS, 353
U.S. 232, 247, 251 (1957). 

10.  AN ATTORNEY, WE SOMETIMES TEND TO FORGET, IS AN OFFICER OF THE
COURT.  EX PARTE GARLAND, 4 WALL.,AT 378.  PERHAPS WE READ TOO MUCH
INTO THAT PHRASE.  BUT THERE IS A DISTINCT ELEMENT OF FACT AND OF
HISTORY IN IT.  WE HAVE SEEN, OF LATE, AN OVERABUNDANCE OF COURTROOM
SPECTACLE BROUGHT ABOUT BY ATTORNEYS-- FREQUENTLY THOSE WHO, BEING
UNLICENSED IN THE PARTICULAR STATE, ARE NEVERTHELESS PERMITTED, BY THE
COURT'S INDULGENCE, TO APPEAR FOR CLIENTS IN A GIVEN CASE-- WHO GIVE
INDICATIONS OF IGNORING THEIR RESPONSIBILITY TO THE COURTS AND TO THE
JUDICIAL PROCESS.  QUESTION 27 BEARS UPON THIS FACET OF AN APPLICANT'S
CHARACTER. 

11.  THE PLURALITY OPINION ACKNOWLEDGES THAT ARIZONA HAS A
LEGITIMATE INTEREST IN DETERMINING WHETHER THE APPLICANT HAS THE
"QUALITIES OF CHARACTER" REQUISITE FOR THE PRACTICE OF LAW.  BUT THE
OPINION THEN GOES ON TO PRESCRIBE WHEN, IN ITS JUDGMENT, THE APPLICANT
HAS GIVEN A SUFFICIENT AMOUNT OF INFORMATION TO THE COMMITTEE.  I DOUBT
IF THIS COURT IS THE PROPER TRIBUNAL TO JUDGE THE SUFFICIENCY OF
MATERIAL SUPPLIED FOR LEGAL PRACTICE IN ARIZONA.  OF COURSE THERE IS A
CONSTITUTIONAL LIMIT, BUT THAT LIMIT IS MARKED BY THE RELEVANT, BY THE
EXCESSES OF UNREASONABLENESS AND OF HARASSMENT, AND BY THE OTHERWISE
CONSTITUTIONALLY FORBIDDEN.  IT SHOULD NOT BE MARKED AT AN ARBITRARY
POINT WHERE THE APPLICANT, FOR REASONS OF CONVENIENCE OR ASSUMED SELF
PROTECTION OR CONTRARINESS, DECIDES THAT ENOUGHT IS ENOUGH. 

12.  FINALLY, THE STATE HAS A MEASURE OF A RIGHT TO PROTECT ITSELF. 
ITS AREA OF POSSIBLE VULNERABILITY IS NOWHERE GREATER THAN IN ITS
COURTS AND IN ITS JUDICIAL PROCESS.  COURTROOM EVENTS DISCLOSED IN
RECENT LITIGATION VIVIDLY DEMONSTRATE THIS.  SEE ILLINOIS V. ALLEN, 397
U.S. 337 (1970); MAYBERRY V. PENNSYLVANIA, 400 U.S. 455 (1971). 
ASSURANCE THAT APPLICANT BAIRD AT LEAST PROFESSES TO REFRAIN FROM
FORCEFUL AND VIOLENT OVERTHROW OF THE GOVERNMENT OF WHICH, UPON
ADMISSION, SHE WILL BECOME A TRUE AND WORKING PART, AND UNDER WHICH,
FOR BETTER OR FOR WORSE, SHE HAS LIVED AND, JUDGING BY HER EXCELLENT
EDUCATION, HAS PROSPERED AND ENJOYED SOME BENEFITS, IS A SUBJECT OF
LEGITIMATE INQUIRY. 

AS STATED ABOVE, ON THIS RECORD I WOULD AFFIRM THE JUDGMENT OF THE
SUPREME COURT OF ARIZONA. 

/1/  SEE 102 ARIZ. XXIV, XXIX, AND XXXVII, FOR THE PERTINENT
PROVISIONS OF RULE 28(C) IN EFFECT AT THE TIME MRS. BAIRD SUBMITTED HER
APPLICATION.  THE RULE WAS AMENDED, EFFECTIVE AUGUST 1, 1970, IN WAYS
NOT RELEVANT HERE.  SEE 106 ARIZ. XXXI. 

/2/  THE MAJORITY, OF COURSE, OBVIOUSLY WOULD HOLD THAT QUESTION 25
ALSO WAS IMPERMISSIBLE.  IN RE STOLAR, POST, P. 23.  MRS. BAIRD,
HOWEVER, APPEARS TO HAVE HAD NO HESITANCY IN ANSWERING THAT INQUIRY. 

/3/  SEE ARIZONA SUPREME COURT RULE 28(C). 

/4/ "THE COMMITTEE WOULD AGAIN EMPHASIZE THAT IT HAS FORMED NO
JUDGMENT AS TO WHETHER OR NOT SARA BAIRD SHOULD OR SHOULD NOT BE
RECOMMENDED FOR ADMISSION TO THE BAR OF THIS STATE TO THIS COURT. 

"THE COMMITTEE WOULD AGAIN EMPHASIZE TO THIS COURT THAT IF THE
ANSWER TO QUESTION NO. 27 IS 'YES' THE COMMITTEE WILL THEN ENDEAVOR TO
ASCERTAIN IF SARA BAIRD DOES ADHERE TO THE VIEW THAT THE OVERTHROW OF
THE GOVERNMENT OF THIS STATE AND OF THE UNITED STATES BY FORCE AND
VIOLENCE WOULD BE A DESIRABLE OBJECTIVE AND THAT SHE WOULD EXPECT TO
ACTIVELY SUPPORT SUCH VIEWS.  IF THIS IS THE CONCLUSION REACHED BY THE
COMMITTEE, IT WILL UNDOUBTEDLY REFUSE TO RECOMMEND SARA BAIRD FOR
ADMISSION TO THE BAR OF THE STATE OF ARIZONA.  SHOULD THE CONCLUSION BE
THAT HER MEMBERSHIP IS OF A NOMINAL CHARACTER AND THAT SHE DOES NOT
PARTICIPATE AND ADHERE TO THE VIEWS THAT A VIOLENT OVERTHROW OF OUR
GOVERNMENT IS DESIRABLE, THEN THE COMMITTEE WOULD HAVE NO LEGAL BASIS
FOR REFUSING TO RECOMMEND HER FOR ADMISSION TO PRACTICE LAW UNDER THE
DECISIONS OF THE UNITED STATES SUPREME COURT . . . "  RESPONDENT'S
BRIEF 2. 

"THE COMMITTEE, CONTRARY TO THE REPEATED ASSERTIONS AND INSINUATIONS
TO THE CONTRARY IN PETITIONER'S BRIEF, HAS ALSO MADE IT ABUNDANTLY
CLEAR THAT REGARDLESS OF THE POLITICAL BELIEFS AND VIEWS OF SARA BAIRD
IT IS ONLY IF SHE IS FOUND TO BE ACTIVELY BELIEVE IN THE NOTION AND
ESPOUSES AN ACTIVIST ROLE IN IMPLEMENTING THE NOTION THAT OUR
GOVERNMENT BE DESTROYED BY FORCE AND VIOLENCE THAT A FAVORABLE
RECOMMENDATION WILL BE REFUSED HER BY THE COMMITTEE . . . "
RESPONDENT'S BRIEF 3. 

"THE COMMITTEE HAS NOT AND CANNOT IN GOOD CONSCIENCE CERTIFY TO THE
ARIZONA SUPREME COURT THAT SARA BAIRD HAS THE CHARACTER AND MORAL
FITNESS TO PRACTICE LAW IF SHE DOES ACTIVELY SUPPORT AND ADVOCATE THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE."  RESPONDENT'S BRIEF 6. 

"THE ISSUE IS SIMPLE.  'IS ONE WHO BELIEVES IN AND WHO IS WILLING TO
WORK TO UNDERMINE AND DESTROY THE GOVERNMENT OF THE UNITED STATES
QUALIFIED TO BE ADMITTED TO THE PRACTICE OF LAW?'"  RESPONDENT'S BRIEF
13. 

/5/  THE MEMORANDUM STATES AS ITS CONCLUSION: 

"THE COMMITTEE WOULD AGAIN EMPHASIZE THAT IT HAS FORMED NO JUDGMENT
AS TO WHETHER OR NOT SARA BAIRD SHOULD OR SHOULD NOT BE RECOMMENDED FOR
ADMISSION TO THE BAR OF THIS STATE TO THIS COURT. 

"THE COMMITTEE WOULD AGAIN EMPHASIZE TO THIS COURT THAT IF THE
ANSWER TO QUESTION NO. 27 IS 'YES' THE COMMITTEE WILL THEN ENDEAVOR TO
ASCERTAIN IF SARA BAIRD DOES ADHERE TO THE VIEW THAT THE OVERTHROW OF
THE GOVERNMENT OF THIS STATE AND OF THE UNITED STATES BY FORCE AND
VIOLENCE WOULD BE A DESIRABLE OBJECTIVE AND THAT SHE WOULD EXPECT TO
ACTIVELY SUPPORT SUCH VIEWS.  IF THIS IS THE CONCLUSION REACHED BY THE
COMMITTEE, IT WILL UNDOUBTEDLY REFUSE TO RECOMMEND SARA BAIRD FOR
ADMISSION TO THE BAR OF THE STATE OF ARIZONA.  SHOULD THE CONCLUSION BE
THAT HER MEMBERSHIP IS OF A NOMINAL CHARACTER AND THAT SHE DOES NOT
PARTICIPATE AND ADHERE TO THE VIEWS THAT A VIOLENT OVERTHROW OF OUR
GOVERNMENT IS DESIRABLE, THEN THE COMMITTEE WOULD HAVE NO LEGAL BASIS
FOR REFUSING TO RECOMMEND HER FOR ADMISSION TO PRACTICE LAW . . . " 

/6/  RESPONDENT'S BRIEF 15. 

PETER D. BAIRD REARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE JOHN P. FRANK AND PAUL G. ULRICH. 

MARK WILMER REARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :








IN RE STOLAR, 401 U.S. 23 


       IN RE STOLAR

        CERTIORARI TO THE SUPREME COURT OF OHIO

        NO. 18.  ARGUED DECEMBER 9, 1969-- REARGUED  OCTOBER 14-15,

           1970-- DECIDED FEBRUARY 23, 1971 


PETITIONER, A 1968 LAW SCHOOL GRADUATE AND A MEMBER OF THE NEW YORK
BAR, APPLIED FOR ADMISSION TO THE OHIO BAR.  HE MADE AVAILABLE TO OHIO
ALL THE INFORMATION HE HAD GIVEN THE NEW YORK BAR COMMITTEE, INCLUDING
ANSWERS TO QUESTIONS CONCERNING ORGANIZATIONS WITH WHICH HE WAS
ASSOCIATED, HIS LOYALTY TO THE GOVERNMENT, AND WHETHER HE WAS A MEMBER
OF A GROUP SEEKING TO EFFECT CHANGES IN OUR FORM OF GOVERNMENT OR TO
ADVANCE THE INTERESTS OF A FOREIGN COUNTRY.  BUT PETITIONER REFUSED TO
ANSWER THREE QUESTIONS ON THE OHIO APPLICATION ON THE GROUND THAT THEY
INFRINGED HIS RIGHTS UNDER THE FIRST AND FIFTH AMENDMENTS:  (1)
QUESTION 12(G), WHICH ASKED WHETHER HE WAS A MEMBER OF "ANY
ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE
UNITED STATES BY FORCE," (2) QUESTION 13, WHICH ASKED FOR A LIST OF ALL
"ORGANIZATIONS OF WHICH YOU ARE OR HAVE BEEN A MEMBER," AND (3)
QUESTION 7, WHICH SOUGHT A LIST OF ALL "ORGANIZATIONS OF WHICH YOU ARE
OR HAVE BECOME A MEMBER SINCE REGISTERING AS A LAW STUDENT."  THE OHIO
SUPREME COURT APPROVED THE BAR INVESTIGATING COMMITTEE'S RECOMMENDATION
THAT PETITIONER'S APPLICATION TO TAKE THE BAR EXAMINATION BE DENIED. 
HELD:  THE JUDGMENT OF THE OHIO SUPREME COURT IS REVERSED AND THE CASE
IS REMANDED.  PP. 27-31. 

REVERSED AND REMANDED. 

MR. JUSTICE BLACK, JOINED BY MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL, CONCLUDED THAT IT WAS A DENIAL OF
PETITIONER'S FIRST AMENDMENT RIGHTS TO REFUSE HIM ADMISSION TO THE OHIO
BAR SIMPLY BECAUSE HE DECLINED TO ANSWER QUESTIONS ABOUT HIS BELIEFS
AND ASSOCIATES.  BAIRD V. STATE BAR OF ARIZONA, ANTE, P. 1.  PP. 27
31. 

MR. JUSTICE STEWART CONCLUDED THAT QUESTIONS 7 AND 13 ARE
UNCONSTITUTIONAL UNDER SHELTON V. TUCKER, 364 U.S. 479, AND THAT
QUESTION 12(G), LIKE QUESTION 27 IN BAIRD V. STATE BAR OF ARIZONA,
ANTE, P. 1, IS CONSTITUTIONALLY INFIRM UNDER THE FIRST AND FOURTEENTH
AMENDMENTS SINCE IT IS NOT CONFINED TO KNOWING MEMBERSHIP IN ANY
ORGANIZATION THAT ADVOCATES VIOLENT OVERTHROW OF THE GOVERNMENT.  P.
31. 

BLACK, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN OPINION
IN WHICH DOUGLAS, BRENNAN, AND MARSHALL, JJ., JOINED.  STEWART, J.,
FILED AN OPINION CONCURRING IN THE JUDGMENT, POST, P. 31.  HARLAN, J.,
FILED A DISSENTING OPINION, POST, P. 34.  WHITE, J., FILED A DISSENTING
OPINION, ANTE, P. 10.  BLACKMUN, J., FILED A DISSENTING OPINION IN
WHICH BURGER, C. J., AND HARLAN AND WHITE, JJ., JOINED, POST, P. 31. 

MR. JUSTICE BLACK ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR.
JUSTICE MARSHALL JOIN. 

THIS IS THE SECOND OF TWO CASES /1/  INVOLVING THE REFUSAL OF STATES
TO ADMIT APPLICANTS TO PRACTICE LAW BECAUSE THEY DECLINED TO ANSWER
QUESTIONS RELATING TO THEIR BELIEFS ABOUT GOVERNMENT AND THEIR
AFFILIATIONS WITH ORGANIZATIONS SUSPECTED OF ADVOCATING THE OVERTHROW
OF GOVERNMENT BY FORCE.  THESE CASES, WHICH CONCERN INQUISITIONS ABOUT
LOYALTY AND GOVERNMENT OVERTHROW, ARE RELICS OF A TURBULENT PERIOD
KNOWN AS THE "MCCARTHY ERA," WHICH DREW ITS NAME FROM SENATOR JOSEPH
MCCARTHY FROM WISCONSIN.  WE HAVE JUST REFERRED IN OUR OPINION IN BAIRD
V. STATE BAR OF ARIZONA, ANTE, P. 1, TO THE CONFUSION AND UNCERTAINTY
CREATED BY PAST CASES IN THIS CONSTITUTIONAL FIELD.  THE CENTRAL
QUESTION IN ALL OF THEM HAS BEEN THE SAME, WHETHER INVOLVING LAWYERS,
DOCTORS, MARINE WORKERS, OR STATE OR FEDERAL GOVERNMENT EMPLOYEES,
NAMELY; TO WHAT EXTENT DOES THE FIRST OR FIFTH AMENDMENT OR OTHER
CONSTITUTIONAL PROVISION PROTECT PERSONS AGAINST GOVERNMENTAL INTRUSION
AND INVASION INTO PRIVATE BELIEFS AND VIEWS THAT HAVE NOT RIPENED INTO
ANY PUNISHABLE CONDUCT?  WITHOUT ATTEMPTING IN THAT CASE TO BRING ABOUT
A COMPLETE RECONCILIATION OF ALL THAT THIS COURT HAS PREVIOUSLY SAID
ABOUT THIS PARTICULAR PHASE OF FIRST AMENDMENT PROTECTION, WE HELD THAT
UNDER THE CIRCUMSTANCES PRESENT THERE, MRS. BAIRD COULD NOT,
CONSISTENTLY WITH THE FIRST AMENDMENT, BE DENIED A STATE LICENSE TO
PRACTICE LAW BECAUSE SHE REFUSED TO STATE WHETHER SHE HAD BELONGED TO
THE COMMUNIST PARTY OR ANY ORGANIZATION THAT ADVOCATED OVERTHROW OF THE
UNITED STATES GOVERNMENT BY FORCE.  HERE WE HOLD THAT STOLAR'S REFUSALS
TO ANSWER CERTAIN QUESTIONS ASKED HIM BY THE OHIO BAR COMMITTEE WERE
ALSO PROTECTED BY THE FIRST AMENDMENT. 

THE FACTS ARE THESE: STOLAR, WHOSE HOME IS IN ROCHESTER, NEW YORK,
HAS AN A.B. DEGREE FROM THE UNIVERSITY OF ROCHESTER AND RECEIVED AN
LL.B. DEGREE FROM NEW YORK UNIVERSITY LAW SCHOOL IN 1968.  THE DEAN OF
THAT SHCOOL HAS CERTIFIED THAT STOLAR HAS RECEIVED INSTRUCTIONS IN
LEGAL ETHICS, HAS A GOOD MORAL CHARACTER, AND HAS SUFFICIENT KNOWLEDGE
AND ABILITY TO DISCHARGE THE DUTIES OF AN ATTORNEY AT LAW.  HE HAS A
LICENSE TO PRACTICE LAW IN NEW YORK STATE.  TO BECOME A MEMBER OF THE
NEW YORK BAR, STOLAR WAS ASKED AND ANSWERED THE FOLLOWING QUESTIONS,
ALONG WITH MANY OTHERS: 

     "18.  STATE WHETHER YOU HAVE PARTICIPATED IN ACTIVITIES OF A

 PUBLIC OR PATRIOTIC NATURE OR IN PHILANTHROPIC, RELIGIOUS, OR

  SOCIAL SERVICES?  IF SO, STATE THE FACTS FULLY. 

   "I WAS A CUB SCOUT AND BOY SCOUT AND EXPLORER SCOUT DURING
ELEMENTARY AND HIGH SCHOOL. 

     "I ALSO PARTICIPATED FULLY IN MY TEMPLE'S RELIGIOUS EDUCATION

  PROGRAMS UNTIL I WENT TO COLLEGE. 

     "IN ADDITION, MY TIME SPENT AS A VISTA IS A SERVICE OF THE
ABOVE DESCRIBED NATURE. 

     "19.  DO YOU BELIEVE IN THE PRINCIPLES UNDERLYING THE FORM OF

GOVERNMENT OF THE UNITED STATES?  YES. 

     "20.  STATE WHETHER YOU HAVE BEEN OR ARE A MEMBER OF ANY PARTY

  OR ORGANIZATION ENGAGED IN PROPAGATING OR PLEDGED TO EFFECT

CHANGES IN THE FORM OF GOVERNMENT PROVIDED FOR BY THE UNITED

  STATES CONSTITUTION, OR IN ADVANCING THE INTERESTS OF A FOREIGN

  COUNTRY?  IF SO, STATE THE FACTS FULLY.  NO. 

    "21.  CAN YOU CONSCIENTIOUSLY, AND DO YOU, AFFIRM, WITHOUT ANY

  MENTAL RESERVATION, THAT YOU HAVE BEEN AND ARE LOYAL TO THE

  GOVERNMENT OF THE UNITED STATES?  YES. 

     .          .          .          . 

     "24.  (A) HAVE YOU STUDIED THE CANONS OF ETHICS ADOPTED BY THE

  AMERICAN BAR ASSOCIATION?  YES. 

     "(B) DO YOU UNCONDITIONALLY SUBSCRIBE TO THE SAME?  YES. 

     "(C) WILL YOU CONSCIENTIOUSLY ENDEAVOR TO CONFORM YOUR
PROFESSIONAL CONDUCT TO THEM?  YES." 

IN 1969 MR. STOLAR APPLIED TO THE OHIO BAR FOR ADMISSION TO
PRACTICE.  HE MADE AVAILABLE TO OHIO ALL THE INFORMATION HE HAD
PREVIOUSLY GIVEN THE NEW YORK BAR COMMITTEE, INCLUDING HIS ANSWERS TO
THE NEW YORK QUESTIONS STATED ABOVE.  STOLAR THEN ANSWERED A LONG
SERIES OF QUESTIONS POSED BY THE OHIO COMMITTEE.  IN RESPONSE TO ORAL
INTERROGATION HE STATED: 

"THAT HE IS NOT NOW AND HAS NEVER BEEN A MEMBER OF THE COMMUNIST
PARTY, OF ANY SOCIALIST PARTY, OR OF THE STUDENTS FOR A DEMOCRATIC
SOCIETY, AND . . . THAT HE HAS SIGNED THE STANDARD U.S. ARMY PRE
INDUCTION SECURITY OATH, WHICH HAS REFERENCE TO THE 'ATTORNEY GENERAL'S
LIST.'" 

HOWEVER, STOLAR DECLINED TO ANSWER CERTAIN QUESTIONS ON THE OHIO
APPLICATION ON THE GROUNDS THEY INFRINGED HIS RIGHTS UNDER THE FIRST
AND FIFTH AMENDMENTS.  THESE QUESTIONS WERE: 

     "12.  STATE WHETHER YOU HAVE BEEN, OR PRESENTLY ARE . . . (G)
A

  MEMBER OF ANY ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE

  GOVERNMENT OF THE UNITED STATES BY FORCE . . . 

     "13.  LIST THE NAMES AND ADDRESSES OF ALL CLUBS, SOCIETIES OR

  ORGANIZATIONS OF WHICH YOU ARE OR HAVE BEEN A MEMBER." 

     "7.  LIST THE NAMES AND ADDRESSES OF ALL CLUBS, SOCIETIES OR

  ORGANIZATIONS OF WHICH YOU ARE OR HAVE BEEN A MEMBER SINCE

  REGISTERING AS A LAW STUCENT." 

BECAUSE OF HIS REFUSAL TO ANSWER THESE QUESTIONS, ONE MEMBER OF THE
COMMITTEE WHO INVESTIGATED STOLAR RECOMMENDED THAT HE BE DENIED
ADMISSION.  THE OTHER STATED: 

     "I FOUND MR. STOLAR TO BE HONEST AND FORTHRIGHT.  HIS

  STATEMENTS EVIDENCED ALSO A CERTAIN COMMITMENT TO PRINCIPLE FOR

  ITS OWN SAKE, AN UNUSUALLY GREAT AMOUNT OF SOCIAL AWARENESS, AND

  A DEGREE OF SELF-INTEREST NOT REPREHENSIBLE.  ON THE BASIS OF THE

  INTERVIEW AND THE BACKGROUND ACTUALLY REVEALED IN MR. STOLAR'S

  APPLICATIONS I HAVE NO RELUCTANCE TO RECOMMEND MR. STOLAR FOR

  ADMISSION TO THE PRACTICE OF LAW." 

THE FULL COMMITTEE THEN RECOMMENDED THAT PETITIONER'S APPLICATION TO
TAKE THE OHIO BAR EXAMINATION BE DENIED.  THE OHIO SUPREME COURT
APPROVED THE COMMITTEE'S RECOMMENDATION WITHOUT OPINION.  WE GRANTED
CERTIORARI.  396 U.S. 816. 

WE DEAL FIRST WITH OHIO'S DEMANDS THAT PETITIONER MARTIN STOLAR LIST
ALL THE ORGANIZATIONS TO WHICH HE HAS BELONGED SINCE REGISTERING AS A
LAW STUDENT AND THOSE OF WHICH HE HAS EVER BEEN A MEMBER.  IN OUR VIEW
REQUIRING A BAR APPLICANT TO ANSWER THESE QUESTIONS IS IMPERMISSIBLE IN
LIGHT OF THE FIRST AMENDMENT, AS WAS MADE CLEAR IN SHELTON V. TUCKER,
364 U.S. 479 (1960).  AT ISSUE IN SHELTON WAS AN ARKANSAS STATUTE THAT
REQUIRED EVERY STATE TEACHER, AS A CONDITION OF EMPLOYMENT, TO FILE AN
AFFIDAVIT LISTING EVERY ORGANIZATION TO WHICH HE HAD BELONGED WITHIN
THE PRECEDING FIVE YEARS.  THE COURT NOTED THAT THIS REQUIREMENT
IMPINGED UPON THE TEACHER'S RIGHT TO FREEDOM OF ASSOCIATION BECAUSE IT
PLACED "PRESSURE UPON A TEACHER TO AVOID ANY TIES WHICH MIGHT DISPLEASE
THOSE WHO CONTROL HIS PROFESSIONAL DESTINY . . . "  ID., AT 486. 
SIMILARLY HERE, THE LISTING OF AN ORGANIZATION CONSIDERED BY COMMITTEE
MEMBERS TO BE CONTROVERSIAL OR "SUBVERSIVE" IS LIKELY TO CAUSE DELAY
AND EXTENSIVE INTERROGATION OR SIMPLY DENIAL OF ADMISSION TO THE BAR. 
RESPONDENT COMMITTEE FRANKLY SUGGESTS THAT THE LISTING OF AN
ORGANIZATION WHICH IT FELT "ESPOUSED ILLEGAL AIMS" WOULD CAUSE IT TO
"INVESTIGATE FURTHER."  LAW STUDENTS WHO KNOW THEY MUST SURVIVE THIS
SCREENING PROCESS BEFORE PRACTICING THEIR PROFESSION ARE ENCOURAGED TO
PROTECT THEIR FUTURE BY SHUNNING UNPOPULAR OR CONTROVERSIAL
ORGANIZATIONS.  CF. SPEISER V. RANDALL, 357 U.S. 513 (1958). 

THE COMMITTEE SUGGESTS ITS "LISTING" QUESTION SERVES A LEGITIMATE
INTEREST BECAUSE IT NEEDS TO KNOW WHETHER AN APPLICANT HAS BELONGED TO
AN ORGANIZATION WHICH HAS "ESPOUSED ILLEGAL AIMS" AND WHETHER THE
APPLICANT HIMSELF HAS ESPOUSED SUCH AIMS.  BUT THE FIRST AMENDMENT
PROHIBITS OHIO FROM PENALIZING AN APPLICANT BY DENYING HIM ADMISSION TO
THE BAR SOLELY BECAUSE OF HIS MEMBERSHIP IN AN ORGANIZATION.  BAIRD V.
STATE BAR OF ARIZONA, SUPRA, CF. UNITED STATES V. ROBEL, 389 U.S. 258,
266 (1967); KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589, 607 (1967). 
NOR MAY THE STATE PENALIZE PETITIONER SOLELY BECAUSE HE PERSONALLY, AS
THE COMMITTEE SUGGESTS "ESPOUSES ILLEGAL AIMS."  SEE CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303-304 (1940); BAIRD V. STATE BAR OF
ARIZONA, SUPRA. 

THE COMMITTEE ALSO ARGUES IT NEEDS ANSWERS TO QUESTIONS 7 AND 13
BECAUSE RESPONSES MIGHT DIRECT ITS ATTENTION TO PERSONS WHO HAVE KNOWN
AN APPLICANT AND WHO COULD SUPPLY INFORMATION RELEVANT TO HIS
QUALIFICATIONS.  UNDOUBTEDLY OHIO HAS A LEGITIMATE INTEREST IN
DETERMINING WHETHER AN APPICANT HAS "THE QUALITIES OF CHARACTER AND THE
PROFESSIONAL COMPETENCE REQUISITE TO THE PRACTICE OF LAW."  BAIRD V.
STATE BAR OF ARIZONA, SUPRA.  BUT PETITIONER STOLAR, ALREADY A MEMBER
IN GOOD STANDING OF THE NEW YORK BAR, SUPPLIED THE OHIO COMMITTEE WITH
EXTENSIVE PERSONAL AND PROFESSIONAL INFORMATION AS WELL AS NUMEROUS
CHARACTER REFERENCES TO ENABLE IT TO MAKE THE NECESSARY INVESTIGATION
AND DETERMINATION.  MOREOVER, EVEN THOUGH IRRELEVANT TO HIS FITNESS TO
PRACTICE LAW, STOLAR'S ANSWERS TO QUESTIONS ON THE NEW YORK APPLICATION
PROVIDED OHIO WITH SUBSTANTIALLY THE INFORMATION IT WAS SEEKING BY
QUESTIONS 7, 12(G), AND 13.  THE INFORMATION CONTAINED IN THE TWO
APPLICATIONS INCLUDED PETITIONER'S LAW SCHOOL; EVERY ADDRESS AT WHICH
HE HAD EVER LIVED; THE NAMES, ADDRESSES, AND OCCUPATIONS OF HIS
PARENTS; THE NAMES AND ADDRESSES OF HIS ELEMENTARY SCHOOL, HIS HIGH
SCHOOL AND HIGH SCHOOL RINCIPAL; THE NAMES OF NINE FORMER EMPLOYERS
(WHICH INCLUDED THREE DIFFERENT LAW FIRMS FOR WHICH HE HAD DONE SUMMER
WORK); HIS "CRIMINAL RECORD" (WHICH CONSISTED OF TWO SPEEDING
CONVICTIONS); NINE DIFFERENT PEOPLE AS CHARACTER REFERENCES (TWO OF
WHOM HAD KNOWN STOLAR FOR MORE THAN 20 YEARS); AND EXTENSIVE
INFORMATION ABOUT HIS PREVIOUS ACTIVITIES (E.G., LAW SCHOOL MOOT COURT,
GRADUATE ADVISOR AT N.Y.U., CUB SCOUT, BOY SCOUT, EXPLORER SCOUT, AND
HIS TEMPLE'S RELIGIOUS EDUCATION PROGRAMS). 

WE CONCLUDE ALSO THAT OHIO MAY NOT REQUIRE AN APPLICANT FOR
ADMISSION TO THE BAR TO STATE WHETHER HE HAS BEEN OR IS A "MEMBER OF
ANY ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE
UNITED STATES BY FORCE."  AS WE NOTED ABOVE, THE FIRST AMENDMENT
PROHIBITS OHIO FROM PENALIZING A MAN SOLELY BECAUSE HE IS A MEMBER OF A
PARTICULAR ORGANIZATION.  SEE ALSO BAIRD V. STATE BAR OF ARIZONA,
SUPRA.  SINCE THIS IS TRUE, WE CAN SEE NO LEGITIMATE STATE INTEREST
WHICH IS SERVED BY A QUESTION WHICH SWEEPS SO BROADLY INTO AREAS OF
BELIEF AND ASSOCIATION PROTECTED AGAINST GOVERNMENT INVASION.  CANTWELL
V. CONNECTICUT, 310 U.S. 296, 303-304 (1940); UNITED STATES V. ROBEL,
389 U.S. 258, 266 (1967); KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589,
607 (1967); BAIRD V. STATE BAR OF ARIZONA, SUPRA; BAGGETT V. BULLITT,
377 U.S. 360 (1964). 

THERE IS NOT ONE WORD IN THIS ENTIRE RECORD THAT REFLECTS ADVERSELY
ON MR. STOLAR'S MORAL CHARACTER OR HIS PROFESSIONAL COMPETENCE. 
ALTHOUGH THERE WERE THREE QUESTIONS THAT HE DID NOT ANSWER WITH A
SIMPLE "YES" OR "NO," HE DID ANSWER ALL OF THE COMMITTEE'S QUESTIONS
RELEVANT TO HIS FITNESS AND COMPETENCE TO PRACTICE LAW.  IT IS
DIFFICULT IF NOT IMPOSSIBLE TO SEE HOW THE STATE OF OHIO COULD HAVE
BEEN OBSTRUCTED OR FRUSTRATED TO ANY EXTENT IN DETERMINING MR. STOLAR'S
FITNESS TO PRACTICE LAW BY HIS FAILURE TO ANSWER THE QUESTIONS MORE
FULLY.  THE RECORD SHOWS A YOUNG MAN WHO, FROM HIS BOYHOOD UP, HAD NO
ADVERSE MARKS EXCEPT FOR TWO SPEEDING CONVICTIONS.  HE ANSWERED
NUMEROUS PRYING QUESTIONS ABOUT PERSONAL AFFAIRS THAT COULD HARDLY HAVE
BEEN NECESSARY FOR A STATE INTERESTED ONLY IN WHETHER HE WOULD MAKE AN
HONEST LAWYER FAITHFUL TO HIS CLIENTS.  THE QUESTIONS HE DID NOT ANSWER
RELATED ONLY TO HIS BELIEFS AND ASSOCIATIONS, BOTH PROTECTED BY THE
FIRST AMENDMENT.  THE STATE POINTS TO NOT ONE OVERT ACT ON STOLAR'S
PART THAT EVEN SUGGESTS A POSSIBLE REASON FOR DENYING HIS APPLICATION. 
HERE, AS IN BAIRD V. STATE BAR OF ARIZONA, IT WAS A DENIAL OF A BAR
APPLICANT'S FIRST AMENDMENT RIGHTS TO REFUSE HIM ADMISSION SIMPLY
BECAUSE HE DECLINED TO ANSWER QUESTIONS ABOUT HIS BELIEFS AND
ASSOCIATIONS. 

THE JUDGMENT OF THE OHIO SUPREME COURT IS REVERSED AND THE CASE
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE OTHER IS NO. 15, BAIRD V. STATE BAR OF ARIZONA, ANTE, P.
1.  CF. NO. 49, LAW STUDENTS CIVIL RIGHTS RESEARCH COUNCIL V. WADMOND,
POST, P. 154. 

(FOR DISSENTING OPINION OF MR. JUSTICE WHITE, SEE ANTE, P. 10.) 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT. 

OHIO'S QUESTIONS 7 AND 13 ARE PLAINLY UNCONSTITUTIONAL UNDER SHELTON
V. TUCKER, 364 U.S. 479.  IN ADDITION, QUESTION 12(G) SUFFERS FROM THE
SAME CONSTITUTIONAL DEFICIENCY AS DOES ARIZONA'S QUESTION 27 IN BAIRD
V. STATE BAR OF ARIZONA, ANTE, P. 1.  FOR THESE REASONS I AGREE THAT
THE JUDGMENT BEFORE US MUST BE REVERSED. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
HARLAN, AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THIS CASE, ALSO ARGUED HERE FOR THE SECOND TIME, PRESENTS ANOTHER
INSTANCE OF A WELL-EDUCATED (ACADEMIC DEGREE FROM THE UNIVERSITY OF
ROCHESTER; LAW DEGREE FROM NEW YORK UNIVERSITY) AND OBVIOUSLY ABLE
YOUNG PERSON WHO SEEKS ADMISSION TO THE BAR, BUT, TO AN EXTENT AT
LEAST, UPON HIS OWN TERMS.  HIS CASE IS MADE THE MORE ACUTE AND
APPEALING BECAUSE HE ALREADY HAS BEEN ADMITTED TO PRACTICE IN THE STATE
OF NEW YORK BUT NOW FINDS HIMSELF THWARTED IN A LIKE ENDEAVOR IN OHIO. 
THE DECISIONS IN KONIGSBERG V. STATE BAR, 366 U.S. 36 (1961), AND IN RE
ANASTAPLO, 366 U.S. 82 (1961), ARE AGAIN CHALLENGED.     THE PLURALITY
OPINION HAS SET FORTH THE PERTINENT QUESTIONS ASKED OF MARTIN ROBERT
STOLAR, WHEN HE SOUGHT ADMISSION TO THE NEW YORK BAR IN 1968, AND
STOLAR'S ANSWERS TO THOSE QUESTIONS.  AT THAT TIME HE WAS WILLING TO GO
SO FAR AS SPECIFICALLY TO PROFESS EVEN HIS BELIEF IN THE PRINCIPLES
UNDERLYING THE FORM OF GOVERNMENT OF THE UNITED STATES AND HIS LOYALTY
TO THAT GOVERNMENT, AND ALSO, JUST AS SPECIFICALLY, TO GO SO FAR AS TO
DENY THAT HE WAS, OR EVER HAD BEEN, A MEMBER OF ANY PARTY OR
ORGANIZATION PLEDGED TO EFFECT CHANGES IN THE FORM OF OUR GOVERNMENT OR
ENGAGED IN ADVANCING THE INTEREST OF A FOREIGN COUNTRY.  THE PROPRIETY
OF THESE VERY QUESTIONS, WHICH STOLAR ANSWERED APPARENTLY WITHOUT
HESITATION IN NEW YORK IN 1968, WAS SERIOUSLY QUESTIONED SUBSEQUENTLY
IN LAW STUDENTS CIVIL RIGHTS RESEARCH COUNCIL V. WADMOND, 299 F.SUPP. 
117, 130 (SDNY 1969), NOW AFFIRMED, POST, P. 154. 

IN 1969, IN OHIO, STOLAR APPARENTLY AGAIN HAD NO HESITATION IN
PROFESSING AT ORAL INTERVIEW THAT HE WAS NOT, AND NEVER HAD BEEN, A
MEMBER OF THE COMMUNIST PARTY.  BUT, ALTHOUGH THE ONE SEEMS TO INCLUDE
THE OTHER, HE FLATLY REFUSED, ON STATED FIFTH AMENDMENT GROUNDS, TO SAY
(QUESTION 12(G)) WHETHER HE WAS OR HAD BEEN A MEMBER OF ANY
ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE
UNITED STATES BY FORCE.  HE ALSO REFUSED, ON FIFTH AMENDMENT GROUNDS,
TO LIST (QUESTIONS 13 AND 7) ORGANIZATIONS OF WHICH HE WAS OR HAD BEEN
A MEMBER. 

I MAY ASSUME, FOR PRESENT PURPOSES, THAT THE GENERAL AND BROADLY
PHRASED LIST-YOUR-ORGANIZATIONS INQUIRIES, THAT IS, QUESTIONS 13 AND 7,
ARE IMPROPER AND IMPERMISSIBLE UNDER THE COURT'S HOLDING, BY ANOTHER
FIVE-TO-FOUR VOTE, IN SHELTON V. TUCKER, 364 U.S. 479 (1960), DESPITE
THE PRESENCE OF WHAT SEEMS TO ME TO BE A SOMEWHAT SIGNIFICANT
DIFFERENCE BETWEEN NONTENURED SCHOOL TEACHERS AND ABOUT-TO-BE-LICENSED
ATTORNEYS.  THIS ASSUMPTION, HOWEVER, DOES NOT TERMINATE STOLAR'S CASE,
FOR QUESTIONS 12(G), WITH ITS SPECIFIC INQUIRY ABOUT MEMBERSHIP IN
ORGANIZATIONS ADVOCATING OVERTHROW BY FORCE, REMAINS TO BE CONSIDERED. 

MY POSITION WITH RESPECT TO A REFUSAL TO RESPOND TO A QUESTION SUCH
AS QUESTION 12(G) IS SET FORTH IN MY DISSENT IN BAIRD V. STATE BAR OF
ARIZONA, ANTE, P. 11, AND NEEDS NO DETAILED REPETITION HERE.  I NOTE
ONLY (A) THE INCONSISTENCY OF STOLAR'S WILLINGNESS TO RESPOND ORALLY
AND HIS UNWILLINGNESS TO RESPOND IN WRITING, AND (B) THAT, HERE AGAIN,
MEMBERSHIP, PRESENT OR PAST, IN AN ORGANIZATION OF THE KIND SPECIFIED,
ALTHOUGH RELEVANT IN THE BAR ADMISSION CONTEXT, IN AND OF ITSELF IS NOT
CONCLUSIVE UPON THE ISSUE OF ADMISSION TO THE BAR.  OHIO CONCEDES, AS
ARIZONA DID IN BAIRD, THAT THE SIGNIFICANCE LIES IN SOMETHING MORE THAN
MERE MEMBERSHIP. 

NEITHER AM I CONTENT WITH THE CONCLUSION REACHED IN THE PLURALITY
OPINION THAT STOLAR'S RESPONSES TO NEW YORK IN 1968 SHOULD SUFFICE FOR
RESPONSES TO OHIO IN 1969.  THAT KIND OF REASONING WOULD COMPEL ONE TO
CONCLUDE THAT BECAUSE AN APPLICANT IS ADMITTED TO THE BAR OF ONE STATE,
HE SURELY MUST BE ADMITTED TO THE BAR OF ANY OTHER STATE.  WE MIGHT
REACH THAT FRONTIER ONE DAY ON SOME NEW AND AS YET UNDEVELOPED
CONSTITUTIONAL CONCEPT, BUT I DOUBT WHETHER WE HAVE REACHED IT YET. 
NEW YORK'S RANGE OF INQUIRY AND HER AREA OF PARTICULAR INTEREST MAY
VERY WELL DIFFER FROM OHIO'S, AND EACH MAY BE CONSTITUTIONALLY
PERMISSIBLE.  FURTHER, AN ANSWER TRUE IN 1968 MAY NOT BE TRUE AT ALL IN
1969.  TIME PASSES AND CHANGES CAN TAKE PLACE EVEN WITHIN A FEW
MONTHS. 

ALTHOUGH I READILY CONCEDE THAT THE OHIO QUESTION (JUST AS THE
ARIZONA QUESTION IN BAIRD) COULD HAVE BEEN BETTER PHRASED, THE APPROACH
OF THE PLURALITY FOR REVERSAL TO THE INQUIRY IS, I FEEL, SOMEWHAT
UNREALISTIC.  AS IN BAIRD, AND AS NOTED ABOVE, IT IS NOT A MERE
QUESTION OF MEMBERSHIP PRESENT OR PAST.  IT IS A QUESTION OF KNOWING
MEMBERSHIP AND OF WILLINGNESS TO PARTICIPATE IN THE FORCEFUL
DESTRUCTION OF GOVERNMENT.  THIS IS THE CRUX.  TO FORESTALL INQUIRY AT
THE THRESHOLD STULTIFIES OHIO'S APPROPRIATE CONCERN AS TO FAITHFUL
ADHERENCE TO A LAWYER'S TRUST WHEN THE STATES IS ABOUT TO VEST GREAT
PROFESSIONAL AND FIDUCIARY POWER IN THOSE WHO SEEK ENTRANCE TO THE
BAR. 

ON THIS RECORD, I WOULD AFFIRM. 

MR. JUSTICE HARLAN, CONCURRING IN NO. 49, POST, P. 154, AND
DISSENTING IN NO. 15, ANTE, P. 1, AND NO. 18. 

IN JOINING MR. JUSTICE STEWART'S OPINION FOR THE COURT IN THE
WADMOND CASE, NO. 49, POST, P. 154, AND MR. JUSTICE BLACKMUN'S
DISSENTING OPINIONS IN THE BAIRD CASE, NO. 15, ANTE, P. 11, AND IN THE
PRESENT CASE, I AM CONSTRAINED TO ADD THESE REMARKS.  /1/ 

MY BROTHER BLACK'S OPINION ANNOUNCING THE JUDGMENTS OF THE COURT IN
BAIRD AND IN THE PRESENT CASE, AND HIS DISSENTING OPINION IN THE
WADMOND CASE, COULD EASILY LEAVE THE IMPRESSION THAT THE THREE STATES
INVOLVED ARE DENYING BAR ADMISSION TO PROFESSIONALLY QUALIFIED
CANDIDATES SOLELY BY REASON OF THEIR MEMBERSHIP IN SO-CALLED SUBVERSIVE
ORGANIZATIONS, IRRESPECTIVE OF WHETHER THAT MEMBERSHIP IS BORN OF A
PURELY PHILOSOPHICAL CASE OF MIND OR OF A SPECIFIC PURPOSE TO ENGAGE IN
ILLEGAL ACTION, OR THAT THESE STATES ARE AT LEAST TRYING TO DISCOURAGE
PROSPECTIVE BAR CANDIDATES FROM JOINING SUCH ORGANIZATIONS.  IN THE
LATTER RESPECT, MY BROTHER MARSHALL'S OPINION, POST, P. 185, SEEMS TO
ME TO LEND ITSELF TO A SIMILAR INTERPRETATION.  IF ANYTHING IN THESE
RECORDS COULD FAIRLY BE TAKEN AS POINTING TO EITHER SUCH CONCLUSION, I
WOULD BE FOUND ON THE "REVERSING" SIDE OF THESE CASES.  THE RECORDS,
HOWEVER, ADUMBRATED BY THE REPRESENTATIONS OF THE RESPONSIBLE LAWYERS
WHO APPEARED FOR THE STATES, IN MY OPINION BELIE ANY SUCH INFERENCES. 
THEY SHOW NO MORE THAN A REFUSAL TO CERTIFY CANDIDATES WHO
DELIBERATELY, ALBEIT IN GOOD FAITH, REFUSE TO ASSIST THE BAR-ADMISSION
AUTHORITIES IN THEIR "FITNESS" INVESTIGATIONS BY DECLINING FULLY TO
ANSWER THE QUESTIONNAIRES. 

I COULD HARDLY BELIEVE THAT ANYONE WOULD DISPUTE A STATE'S RIGHT TO
REFUSE ADMISSION TO THE BAR TO AN APPLICANT WHO AVOWED OR WAS SHOWN TO
POSSESS A DEDICATION TO OVERTHROWING GOVERNMENTAL AUTHORITY BY FORCE OR
TO SUPPLANTING THE RULE OF LAW BY INCITEMENT TO INDIVIDUAL OR GROUP
VIOLENCE AS THE BEST MEANS OF ATTAINING DESIRED GOALS.  ONE COULD
QUESTION THE EFFICACY OR WISDOM OF QUESTIONNAIRES OF THE KIND INVOLVED
IN THESE CASES AS A MEANS OF WEEDING OUT OCCASIONAL MISFITS FROM THE
GENERAL RUN OF BAR CANDIDATES, OR CRITICIZE AS UNDULY COMPLICATED OR
PERVASIVE SOME ASPECTS OF SUCH QUESTIONNAIRES.  AND ONE MAY ALSO BE
UNDERSTANDING OF THE CONSIDERATIONS WHICH IN THIS DAY AND AGE BREED
LAWSUITS LIKE THESE.  BUT WE SHOULD NONETHELESS TAKE CARE LEST THE
INDULGING OF SUCH POINTS OF VIEW LEAD US INTO WARPED CONSTITUTIONAL
DECISION. 

IN MY OPINION THE COURSE CHOSEN BY THESE STATES CANNOT BE SAID TO BE
FORBIDDEN BY THE CONSTITUTION.  I DO NOT CONSIDER THAT THE "LESS
DRASTIC MEANS" TEST WHICH HAS BEEN APPLIED IN SOME FIRST AMENDMENT
CASES, SEE NAACP V. ALABAMA, 377 U.S. 288, 307-308 (1964), AND CASES
CITED THEREIN, SUFFICES TO JUSTIFY THIS COURT IN ASSUMING GENERAL
OVERSIGHT OF STATE INVESTIGATORY PROCEDURES RELATING TO BAR
ADMISSIONS.  NOR DO I THINK THAT THE QUESTIONING OF CANDIDATES AS TO
THEIR BELIEFS IN VIOLENT OVERTHROW NECESSARILY RUNS AFOUL OF TRUE FIRST
AMENDMENT CONCERNS.  I DO NOT DISPUTE THAT THE FIRST AMENDMENT, AS
REFLECTED IN THE FOURTEENTH, PREVENTS STATES FROM DENYING ADMISSION TO
CANDIDATES MERELY BECAUSE OF THEORETICAL BELIEFS IN THE "RIGHT" OF
REVOLUTION, BUT I DO MAINTAIN THAT THERE IS NO CONSTITUTIONAL BARRIER
TO DENYING ADMISSION TO THOSE WHO SEEK ENTRY TO THE PROFESSION FOR THE
VERY PURPOSE OF DOING AWAY WITH THE ORDERLY PROCESSES OF LAW, AND THAT
TEMPERATE INQUIRY INTO THE CHARACTER OF THEIR BELIEFS IN THIS REGARD,
WHICH IS ALL THAT IS SHOWN HERE, IS A RELEVANT AND PERMISSIBLE COURSE
TO THAT END.  IT SEEMS TO ME LITTLE SHORT OF CHIMERICAL TO SUGGEST THAT
THE INDEPENDENCE OF THE BAR IS THREATENED UNLESS THIS COURT STEPS IN
AND PUTS A CONSTITUTIONAL END TO SUCH A PRACTICE.  CF. BATES V. LITTLE
ROCK, 361 U.S. 516 (1960); BARENBLATT V. UNITED STATES, 360 U.S. 109
(1959). 

WHILE I HOPE THAT I AM NO LESS SENSITIVE THAN OTHERS ON THE COURT TO
FIRST AMENDMENT VALUES, I MUST SAY THAT THE PERVASIVE SUPERVISION OVER
STATE BAR ADMISSION PROCEDURES WHICH IS NOW ASKED OF US WOULD WORK A
MOST EXTRAVAGANT EXPANSION OF THE CURRENT "CHILLING EFFECTS" APPROACH
TO FIRST AMENDMENT DOCTRINE.  KNOWING SOMETHING OF THE GREAT IMPORTANCE
WHICH THE NEW YORK BAR ATTACHES TO THE INDEPENDENCE OF THE INDIVIDUAL
LAWYER, I HAVE LITTLE DOUBT BUT THAT THE CANDIDATES INVOLVED IN WADMOND
WILL PROMPTLY GAIN ADMISSION TO THE BAR IF THEY STRAIGHTFORWARDLY
ANSWER THE INQURIIES PUT TO THEM WITHOUT FURTHER ADO.  AND I SHOULD BE
GREATLY SURPRISED IF THE SAME WERE NOT TRUE AS TO MRS. BAIRD AND MR.
STOLAR IN ARIZONA AND OHIO.  BUT IF I AM MISTAKEN AND IT SHOULD DEVELOP
THAT ANY OF THESE CANDIDATES ARE EXCLUDED SIMPLY BECAUSE OF UNORTHODOX
OR UNPOPULAR BELIEFS, IT WOULD THEN BE TIME ENOUGH FOR THIS COURT TO
INTERVENE. 

/1/ WHILE PETITIONERS IN NOS. 15 AND 18 HAVE ALSO SOUGHT TO ASSERT
FIFTH AMENDMENT CLAIMS AGAINST SELF-INCRIMINATION, TODAY'S OPINIONS
HAVE TREATED ALL THE CASES ONLY IN TERMS OF FIRST AMENDMENT
CONSIDERATIONS, AND I TOO SHALL PROCEED ON THAT BASIS. 

LEONARD B. BOUDIN REARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS DAVID ROSENBERG. 

ROBERT D. MACKLIN, ASSISTANT ATTORNEY GENERAL, REARGUED THE CAUSE
FOR THE STATE OF OHIO AND THE COLUMBUS BAR ASSOCIATION.  WITH HIM ON
THE BRIEF WERE PAUL W. BROWN, ATTORNEY GENERAL, SHELBY V. HUTCHINS, AND
WILLIAM H. SCHNEIDER. 
..END :



YOUNGER V. HARRIS, 401 U.S. 37 


       YOUNGER, DISTRICT ATTORNEY OF LOS ANGELES COUNTY V. HARRIS

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

           CENTRAL DISTRICT OF CALIFORNIA

        NO. 2.  ARGUED APRIL 1, 1969-- REARGUED APRIL 29 AND

           NOVEMBER 16, 1970-- DECIDED FEBRUARY 23, 1971 


APPELLEE HARRIS, WHO HAD BEEN INDICTED FOR VIOLATING THE CALIFORNIA
CRIMINAL SYNDICALISM ACT, SUED IN THE FEDERAL DISTRICT COURT TO ENJOIN
APPELLANT, THE COUNTY DISTRICT ATTORNEY, FROM PROSECUTING HIM,
CONTENDING THAT THE ACT IS UNCONSTITUTIONAL ON ITS FACE AND INHIBITS
HIM IN EXERCISING HIS FREE-SPEECH RIGHTS.  APPELLEES DAN AND HIRSCH,
CLAIMING THAT THE PROSECUTION OF HARRIS WOULD "INHIBIT" THEM FROM
PEACEFULLY ADVOCATING THE PROGRAM OF THE POLITICAL PARTY TO WHICH THEY
BELONGED, AND APPELLEE BROSLAWSKY, A COLLEGE PROFESSOR, CLAIMING THAT
THE PROSECUTION MADE HIM "UNCERTAIN" AS TO WHETHER HIS TEACHING AND
READING PRACTICES WOULD SUBJECT HIM TO PROSECUTION, INTERVENED AS
PLAINTIFFS.  ALL ASSERTED THAT THEY WOULD SUFFER IRREPARABLE INJURY
UNLESS A FEDERAL INJUNCTION WAS ISSUED.  A THREE-JUDGE COURT, RELYING
ON DOMBROWSKI V. PFISTER, 380 U.S. 479, HELD THE ACT VOID FOR VAGUENESS
AND OVERBREADTH, AND ENJOINED HARRIS' PROSECUTION.  HELD: 

1.  THERE IS NO BASIS FOR EQUITABLE JURISDICTION BASED ON THE
ALLEGATIONS OF APPELLEES OTHER THAN HARRIS, WHO HAVE NOT BEEN INDICTED,
ARRESTED, OR THREATENED WITH PROSECUTION, AND THE NORMAL COURSE OF A
STATE CRIMINAL PROSECUTION CANNOT BE BLOCKED ON THE BASIS OF FEARS OF
PROSECUTION THAT ARE MERELY SPECULATIVE.  PP. 41-42. 

2.  FEDERAL COURTS WILL NOT ENJOIN PENDING STATE CRIMINAL
PROSECUTIONS EXCEPT UNDER EXTRAORDINARY CIRCUMSTANCES WHERE THE DANGER
OF IRREPARABLE LOSS IS BOTH GREAT AND IMMEDIATE IN THAT (UNLIKE THE
SITUATION AFFECTING HARRIS) THERE IS A THREAT TO THE PLAINTIFF'S
FEDERALLY PROTECTED RIGHTS THAT CANNOT BE ELIMINATED BY HIS DEFENSE
AGAINST A SINGLE PROSECUTION.  THE DECISION IN DOMBROWSKI, SUPRA, WHICH
INVOLVED ALLEGED BAD-FAITH HARASSMENT AND IS FACTUALLY DISTINGUISHABLE
FROM THIS CASE, DOES NOT SUBSTANTIALLY BROADEN THE AVAILABILITY OF
INJUNCTIONS AGAINST STATE CRIMINAL PROSECUTIONS.  PP. 43-54. 

281 F.SUPP.  507, REVERSED. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND HARLAN, STEWART, AND BLACKMUN, JJ., JOINED.  STEWART, J., FILED
A CONCURRING OPINION, IN WHICH HARLAN, J., JOINED, POST, P. 54. 
BRENNAN, J., FILED AN OPINION CONCURRING IN THE RESULT, IN WHICH WHITE
AND MARSHALL, JJ., JOINED, POST, P. 56.  DOUGLAS, J., FILED A
DISSENTING OPINION, POST, P. 58. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APPELLEE, JOHN HARRIS, JR., WAS INDICTED IN A CALIFORNIA STATE
COURT, CHARGED WITH VIOLATION OF THE CALIFORNIA PENAL CODE SECS. 11400
AND 11401, KNOWN AS THE CALIFORNIA CRIMINAL SYNDICALISM ACT, SET OUT
BELOW.  /1/  HE THEN FILED A COMPLAINT IN THE FEDERAL DISTRICT COURT,
ASKING THAT COURT TO ENJOIN THE APPELLANT, YOUNGER, THE DISTRICT
ATTORNEY OF LOS ANGELES COUNTY, FROM PROSECUTING HIM, AND ALLEGING THAT
THE PROSECUTION AND EVEN THE PRESENCE OF THE ACT INHIBITED HIM IN THE
EXERCISE OF HIS RIGHTS OF FREE SPEECH AND PRESS, RIGHTS GUARANTEED HIM
BY THE FIRST AND FOURTEENTH AMENDMENTS.  APPELLEES JIM DAN AND DIANE
HIRSCH INTERVENED AS PLAINTIFFS IN THE SUIT, CLAIMING THAT THE
PROSECUTION OF HARRIS WOULD INHIBIT THEM AS MEMBERS OF THE PROGRESSIVE
LABOR PARTY FROM PEACEFULLY ADVOCATING THE PROGRAM OF THEIR PARTY,
WHICH WAS TO REPLACE CAPITALISM WITH SOCIALISM AND TO ABOLISH THE
PROFIT SYSTEM OF PRODUCTION IN THIS COUNTRY.  APPELLEE FARRELL
BROSLAWSKY, AN INSTRUCTOR IN HISTORY AT LOS ANGELES VALLEY COLLEGE,
ALSO INTERVENED CLAIMING THAT THE PROSECUTION OF HARRIS MADE HIM
UNCERTAIN AS TO WHETHER HE COULD TEACH ABOUT THE DOCTRINES OF KARL MARX
OR READ FROM THE COMMUNIST MANIFESTO AS PART OF HIS CLASSWORK.  ALL
CLAIMED THAT UNLESS THE UNITED STATES COURT RESTRAINED THE STATE
PROSECUTION OF HARRIS EACH WOULD SUFFER IMMEDIATE AND IRREPARABLE
INJURY.  A THREE-JUDGE FEDERAL DISTRICT COURT, CONVENED PURSUANT TO 28
U.S.C. 2284, HELD THAT IT HAD JURISDICTION AND POWER TO RESTRAIN THE
DISTRICT ATTORNEY FROM PROSECUTING, HELD THAT THE STATE'S CRIMINAL
SYNDICALISM ACT WAS VOID FOR VAGUENESS AND OVERBREADTH IN VIOLATION OF
THE FIRST AND FOURTEENTH AMENDMENTS, AND ACCORDINGLY RESTRAINED THE
DISTRICT ATTORNEY FROM "FURTHER PROSECUTION OF THE CURRENTLY PENDING
ACTION AGAINST PLAINTIFF HARRIS FOR ALLEGED VIOLATION OF THE ACT."  281
F.SUPP.  507, 517 (1968). 

THE CASE IS BEFORE US ON APPEAL BY THE STATE'S DISTRICT ATTORNEY
YOUNGER, PURSUANT TO 28 U.S.C. 1253.  IN HIS NOTICE OF APPEAL AND HIS
JURISDICTIONAL STATEMENT APPELLANT PRESENTED TWO QUESTIONS:  (1)
WHETHER THE DECISION OF THIS COURT IN WHITNEY V. CALIFORNIA, 274 U.S.
357, HOLDING CALIFORNIA'S LAW CONSTITUTIONAL IN 1927 WAS BINDING ON THE
DISTRICT COURT AND (2) WHETHER THE STATE'S LAW IS CONSTITUTIONAL ON ITS
FACE.  IN THIS COURT THE BRIEF FOR THE STATE OF CALIFORNIA, FILED AT
OUR REQUEST, ALSO ARGUES THAT ONLY HARRIS, WHO WAS INDICTED, HAS
STANDING TO CHALLENGE THE STATE'S LAW, AND THAT ISSUANCE OF THE
INJUNCTION WAS A VIOLATION OF A LONGSTANDING JUDICIAL POLICY AND OF 28
U.S.C. 2283, WHICH PROVIDES: 

     "A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO

  STAY PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED

  BY ACT OF CONGRESS, OR WHERE NECESSARY IN AID OF ITS

  JURISDICTION, OR TO PROTECT OR EFFECTUATE ITS JUDGMENTS." 

SEE, E.G., ATLANTIC COAST LINE R. CO. V. ENGINEERS, 398 U.S. 281, 285
286 (1970).  WITHOUT REGARD TO THE QUESTIONS RAISED ABOUT WHITNEY V.
CALIFORNIA, SUPRA, SINCE OVERRULED BY BRANDENBURG V. OHIO, 395 U.S. 444
(1969), OR THE CONSTITUTIONALITY OF THE STATE LAW, WE HAVE CONCLUDED
THAT THE JUDGMENT OF THE DISTRICT COURT, ENJOINING APPELLANT YOUNGER
FROM PROSECUTING UNDER THESE CALIFORNIA STATUTES, MUST BE REVERSED AS A
VIOLATION OF THE NATIONAL POLICY FORBIDDING FEDERAL COURTS TO STAY OR
PENJOIN PENDING STATE COURT PROCEEDINGS EXCEPT UNDER SPECIAL
CIRCUMSTANCES.  /2/  WE EXPRESS NO VIEW ABOUT THE CIRCUMSTANCES UNDER
WHICH FEDERAL COURTS MAY ACT WHEN THERE IS NO PROSECUTION PENDING IN
STATE COURTS AT THE TIME THE FEDERAL PROCEEDING IS BEGUN. 

        I 

APPELLEE HARRIS HAS BEEN INDICTED, AND WAS ACTUALLY BEING PROSECUTED
BY CALIFORNIA FOR A VIOLATION OF ITS CRIMINAL SYNDICALISM ACT AT THE
TIME THIS SUIT WAS FILED.  HE THUS HAS AN ACUTE, LIVE CONTROVERSY WITH
THE STATE AND ITS PROSECUTOR.  BUT NONE OF THE OTHER PARTIES PLAINTIFF
IN THE DISTRICT COURT, DAN, HIRSCH, OR BROSLAWSKY, HAS SUCH A
CONTROVERSY.  NONE HAS BEEN INDICTED, ARRESTED OR EVEN THREATENED BY
THE PROSECUTOR.  ABOUT THESE THREE THE THREE-JUDGE COURT SAID: 

"PLAINTIFFS DAN AND HIRSCH ALLEGE THAT THEY ARE MEMBERS OF THE
PROGRESSIVE LABOR PARTY, WHICH ADVOCATES CHANGE IN INDUSTRIAL OWNERSHIP
AND POLITICAL CHANGE, AND THAT THEY FEEL INHIBITED IN ADVOCATING THE
PROGRAM OF THEIR POLITICAL PARTY THROUGH PEACEFUL, NON-VIOLENT MEANS,
BECAUSE OF THE PRESENCE OF THE ACT 'ON THE BOOKS,' AND BECAUSE OF THE
PENDING CRIMINAL PROSECUTION AGAINST HARRIS.  PLAINTIFF BROSLAWSKY IS A
HISTORY INSTRUCTOR, AND HE ALLEGES THAT HE IS UNCERTAIN AS TO WHETHER
HIS NORMAL PRACTICE OF TEACHING HIS STUDENTS ABOUT THE DOCTRINES OF
KARL MARX AND READING FROM THE COMMUNIST MANIFESTO AND OTHER
REVOLUTIONARY WORKS MAY SUBJECT HIM TO PROSECUTION FOR VIOLATION OF THE
ACT."  281 F.SUPP.,AT 509.  WHATEVER RIGHT HARRIS, WHO IS BEING
PROSECUTED UNDER THE STATE SYNDICALISM LAW MAY HAVE, DAN, HIRSCH, AND
BROSLAWSKY CANNOT SHARE IT WITH HIM.  IF THESE THREE HAD ALLEGED THAT
THEY WOULD BE PROSECUTED FOR THE CONDUCT THEY PLANNED TO ENGAGE IN, AND
IF THE DISTRICT COURT HAD FOUND THIS ALLEGATION TO BE TRUE-- EITHER ON
THE ADMISSION OF THE STATE'S DISTRICT ATTORNEY OR ON ANY OTHER EVIDENCE
- THEN A GENUINE CONTROVERSY MIGHT BE SAID TO EXIST.  BUT HERE
APPELLEES DAN, HIRSCH, AND BROSLAWSKY DO NOT CLAIM THAT THEY HAVE EVER
BEEN THREATENED WITH PROSECUTION, THAT A PROSECUTION IS LIKELY, OR EVEN
THAT A PROSECUTION IS REMOTELY POSSIBLE.  THEY CLAIM THE RIGHT TO BRING
THIS SUIT SOLELY BECAUSE, IN THE LANGUAGE OF THEIR COMPLAINT, THEY
"FEEL INHIBITED."  WE DO NOT THINK THIS ALLEGATION, EVEN IF TRUE, IS
SUFFICIENT TO BRING THE EQUITABLE JURISDICTION OF THE FEDERAL COURTS
INTO PLAY TO ENJOIN A PENDING STATE PROSECUTION.  A FEDERAL LAWSUIT TO
STOP A PROSECUTION IN A STATE COURT IS A SERIOUS MATTER.  AND PERSONS
HAVING NO FEARS OF STATE PROSECUTION EXCEPT THOSE THAT ARE IMAGINARY OR
SPECULATIVE, ARE NOT TO BE ACCEPTED AS APPROPRIATE PLAINTIFFS IN SUCH
CASES.  SEE GOLDEN V. ZWICKLER, 394 U.S. 103 (1969).  SINCE HARRIS IS
ACTUALLY BEING PROSECUTED UNDER THE CHALLENGED LAWS, HOWEVER, WE
PROCEED WITH HIM AS A PROPER PARTY. 

        II 

SINCE THE BEGINNING OF THIS COUNTRY'S HISTORY CONGRESS HAS, SUBJECT
TO FEW EXCEPTIONS, MANIFESTED A DESIRE TO PERMIT STATE COURTS TO TRY
STATE CASES FREE FROM INTERFERENCE BY FEDERAL COURTS.  IN 1793 AN ACT
UNCONDITIONALLY PROVIDED:  "(NOR SHALL A WRIT OF INJUNCTION BE GRANTED
TO STAY PROCEEDINGS IN ANY COURT OF A STATE . . . "  1 STAT. 335, C.
22, SEC. 5.  A COMPARISON OF THE 1793 ACT WITH 28 U.S.C. 2283, ITS
PRESENT-DAY SUCCESSOR, GRAPHICALLY ILLUSTRATES HOW FEW AND MINOR HAVE
BEEN THE EXCEPTIONS GRANTED FROM THE FLAT, PROHIBITORY LANGUAGE OF THE
OLD ACT.  DURING ALL THIS LAPSE OF YEARS FROM 1793 TO 1970 THE
STATUTORY EXCEPTIONS TO THE 1793 CONGRESSIONAL ENACTMENT HAVE BEEN ONLY
THREE:  (1) "EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF CONGRESS"; (2)
"WHERE NECESSARY IN AID OF ITS JURISDICTION"; AND (3) "TO PROTECT OR
EFFECTUATE ITS JUDGMENTS."  IN ADDITION, A JUDICIAL EXCEPTION TO THE
LONGSTANDING POLICY EVIDENCED BY THE STATUTE HAS BEEN MADE WHERE A
PERSON ABOUT TO BE PRESECUTED IN A STATE COURT CAN SHOW THAT HE WILL,
IF THE PROCEEDING IN THE STATE COURT IS NOT ENJOINED, SUFFER
IRREPARABLE DAMAGES.  SEE EX PARTE YOUNG, 209 U.S. 123 (1908).  /3/ 

THE PRECISE REASONS FOR THIS LONGSTANDING PUBLIC POLICY AGAINST
FEDERAL COURT INTERFERENCE WITH STATE COURT PROCEEDINGS HAVE NEVER BEEN
SPECIFICALLY IDENTIFIED BUT THE PRIMARY SOURCES OF THE POLICY ARE
PLAIN.  ONE IS THE BASIC DOCTRINE OF EQUITY JURISPRUDENCE THAT COURTS
OF EQUITY SHOULD NOT ACT, AND PARTICULARLY SHOULD NOT ACT TO RESTRAIN A
CRIMINAL PROSECUTION, WHEN THE MOVING PARTY HAS AN ADEQUATE REMEDY AT
LAW AND WILL NOT SUFFER IRREPARABLE INJURY IF DENIED EQUITABLE RELIEF. 
THE DOCTRINE MAY ORIGINALLY HAVE GROWN OUT OF CIRCUMSTANCES PECULIAR TO
THE ENGLISH JUDICIAL SYSTEM AND NOT APPLICABLE IN THIS COUNTRY, BUT ITS
FUNDAMENTAL PURPOSE OF RESTRAINING EQUITY JURISDICTION WITHIN NARROW
LIMITS IS EQUALLY IMPORTANT UNDER OUR CONSTITUTION, IN ORDER TO PREVENT
EROSION OF THE ROLE OF THE JURY AND AVOID A DUPLICATION OF LEGAL
PROCEEDINGS AND LEGAL SANCTIONS WHERE A SINGLE SUIT WOULD BE ADEQUATE
TO PROTECT THE RIGHTS ASSERTED.  THIS UNDERLYING REASON FOR RESTRAINING
COURTS OF EQUITY FROM INTERFERING WITH CRIMINAL PROSECUTIONS IS
REINFORCED BY AN EVEN MORE VITAL CONSIDERATION, THE NOTION OF "COMITY,"
THAT IS, A PROPER RESPECT FOR STATE FUNCTIONS, A RECOGNITION OF THE
FACT THAT THE ENTIRE COUNTRY IS MADE UP OF A UNION OF SEPARATE STATE
GOVERNMENTS, AND A CONTINUANCE OF THE BELIEF THAT THE NATIONAL
GOVERNMENT WILL FARE BEST IF THE STATES AND THEIR INSTITUTIONS ARE LEFT
FREE TO PERFORM THEIR SEPARATE FUNCTIONS IN THEIR SEPARATE WAYS.  THIS,
PERHAPS FOR LACK OF A BETTER AND CLEARER WAY TO DESCRIB IT, IS REFERRED
TO BY MANY AS "OUR FEDERALISM," AND ONE FAMILIAR WITH THE PROFOUND
DEBATES THAT USHERED OUR FEDERAL CONSTITUTION INTO EXISTENCE IS BOUND
TO RESPECT THOSE WHO REMAIN LOYAL TO THE IDEALS AND DREAMS OF "OUR
FEDERALISM."  THE CONCEPT DOES NOT MEAN BLIND DEFERENCE TO "STATES'
RIGHTS" ANY MORE THAN IT MEANS CENTRALIZATION OF CONTROL OVER EVERY
IMPORTANT ISSUE IN OUR NATIONAL GOVERNMENT AND ITS COURTS.  THE FRAMERS
REJECTED BOTH THESE COURSES.  WHAT THE CONCEPT DOES REPRESENT IS A
SYSTEM IN WHICH THERE IS SENSITIVITY TO THE LEGITIMATE INTERESTS OF
BOTH STATE AND NATIONAL GOVERNMENTS, AND IN WHICH THE NATIONAL
GOVERNMENT, ANXIOUS THOUGH IT MAY BE TO VINDICATE AND PROTECT FEDERAL
RIGHTS AND FEDERAL INTERESTS, ALWAYS ENDEAVORS TO DO SO IN WAYS THAT
WILL NOT UNDULY INTERFERE WITH THE LEGITIMATE ACTIVITIES OF THE
STATES.  IT SHOULD NEVER BE FORGOTTEN THAT THIS SLOGAN, "OUR
FEDERALISM," BORN IN THE EARLY STRUGGLING DAYS OF OUR UNION OF STATES,
OCCUPIES A HIGHLY IMPORTANT PLACE IN OUR NATION'S HISTORY AND ITS
FUTURE. 

THIS BRIEF DISCUSSION SHOULD BE ENOUGH TO SUGGEST SOME OF THE REASONS
WHY IT HAS BEEN PERFECTLY NATURAL FOR OUR CASES TO REPEAT TIME AND TIME
AGAIN THAT THE NORMAL THING TO DO WHEN FEDERAL COURTS ARE ASKED TO
ENJOIN PENDING PROCEEDINGS IN STATE COURTS IS NOT TO ISSUE SUCH
INJUNCTIONS.  IN FENNER V. BOYKIN, 271 U.S. 240 (1926), SUIT HAD BEEN
BROUGHT IN THE FEDERAL DISTRICT COURT SEEKING TO ENJOIN STATE
PROSECUTIONS UNDER A RECENTLY ENACTED STATE LAW THAT ALLEGEDLY
INTERFERED WITH THE FREE FLOW OF INTERSTATE COMMERCE.  THE COURT, IN A
UNANIMOUS OPINION MADE CLEAR THAT SUCH A SUIT, EVEN WITH RESPECT TO
STATE CRIMINAL PROCEEDINGS NOT YET FORMALLY INSTITUTED, COULD BE PROPER
ONLY UNDER VERY SPECIAL CIRCUMSTANCES: 

     "EX PARTE YOUNG, 209 U.S. 123, AND FOLLOWING CASES HAVE

  ESTABLISHED THE DOCTRINE THAT WHEN ABSOLUTELY NECESSARY FOR

  PROTECTION OF CONSTITUTIONAL RIGHTS COURTS OF THE UNITED STATES

  HAVE POWER TO ENJOIN STATE OFFICERS FROM INSTITUTING CRIMINAL

  ACTIONS.  BUT THIS MAY NOT BE DONE EXCEPT UNDER EXTRAORDINARY

  CIRCUMSTANCES WHERE THE DANGER OF IRREPARABLE LOSS IS BOTH GREAT

  AND IMMEDIATE.  ORDINARILY, THERE SHOULD BE NO INTERFERENCE WITH

  SUCH OFFICERS; PRIMARILY, THEY ARE CHARGED WITH THE DUTY OF

  PROSECUTING OFFENDERS AGAINST THE LAWS OF THE STATE AND MUST

  DECIDE WHEN AND HOW THIS IS TO BE DONE.  THE ACCUSED SHOULD FIRST

  SET UP AND RELY UPON HIS DEFENSE IN THE STATE COURTS, EVEN THOUGH

  THIS INVOLVES A CHALLENGE OF THE VALIDITY OF SOME STATUTE, UNLESS

  IT PLAINLY APPEARS THAT THIS COURSE WOULD NOT AFFORD ADEQUATE

  PROTECTION."  ID., AT 243-244. 

THESE PRINCIPLES, MADE CLEAR IN THE FENNER CASE, HAVE BEEN REPEATEDLY
FOLLOWED AND REAFFIRMED IN OTHER CASES INVOLVING THREATENED
PROSECUTIONS.  SEE, E.G., SPIELMAN MOTOR SALES CO. V. DODGE, 295 U.S.
89 (1935); BEAL V. MISSOURI PAC. R. CO., 312 U.S. 45 (1941); WATSON V.
BUCK, 313 U.S. 387 (1941); WILLIAMS V. MILLER, 317 U.S. 599 (1942);
DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157 (1943). 

IN ALL THESE CASES THE COURT STRESSED THE IMPORTANCE OF SHOWING
IRREPARABLE INJURY, THE TRADITIONAL PREREQUISITE TO OBTAINING AN
INJUNCTION.  IN ADDITION, HOWEVER, THE COURT ALSO MADE CLEAR THAT IN
VIEW OF THE FUNDAMENTAL POLICY AGAINST FEDERAL INTERFERENCE WITH STATE
CRIMINAL PROSECUTIONS, EVEN IRREPARABLE INJURY IS INSUFFICIENT UNLESS
IT IS "BOTH GREAT AND IMMEDIATE."  FENNER, SUPRA.  CERTAIN TYPES OF
INJURY, IN PARTICULAR, THE COST, ANXIETY, AND INCONVENIENCE OF HAVING
TO DEFEND AGAINST A SINGLE CRIMINAL PROSECUTION.  SEE, E.G., EX PARTE
YOUNG, SUPRA, AT 145-147.  THUS, IN THE BUCK CASE, SUPRA, AT 400, WE
STRESSED: 

     "FEDERAL INJUNCTIONS AGAINST STATE CRIMINAL STATUTES, EITHER
IN

THEIR ENTIRETY OR WITH RESPECT TO THEIR SEPARATE AND DISTINCT

  PROHIBITIONS, ARE NOT TO BE GRANTED AS A MATTER OF COURSE, EVEN

  IF SUCH STATUTES ARE UNCONSTITUTIONAL.  'NO CITIZEN OR MEMBER OF

  THE COMMUNITY IS IMMUNE FROM PROSECUTION, IN GOOD FAITH, FOR HIS

  ALLEGED CRIMINAL ACTS.  THE IMMINENCE OF SUCH A PROSECUTION EVEN

  THOUGH ALLEGED TO BE UNAUTHORIZED AND HENCE UNLAWFUL IS NOT ALONE

  GROUND FOR RELIEF IN EQUITY WHICH EXERTS ITS EXTRAORDINARY POWERS

  ONLY TO PREVENT IRREPARABLE INJURY TO THE PLAINTIFF WHO SEEKS ITS

  AID.'  BEAL V. MISSOURI PACIFIC RAILROAD CORP., 312 U.S. 45,

  49." 

AND, SIMILARLY, IN DOUGLAS, SUPRA, WE MADE CLEAR, AFTER REAFFIRMING
THIS RULE, THAT: 

"IT DOES NOT APPEAR FROM THE RECORD THAT PETITIONERS HAVE BEEN
THREATENED WITH ANY INJURY OTHER THAN THAT INCIDENTAL TO EVERY CRIMINAL
PROCEEDING BROUGHT LAWFULLY AND IN GOOD FAITH . . . "  319 U.S.,AT
164.     THIS IS WHERE THE LAW STOOD WHEN THE COURT DECIDED DOMBROWSKI
V. PFISTER, 380 U.S. 479 (1965), AND HELD THAT AN INJUNCTION AGAINST
THE ENFORCEMENT OF CERTAIN STATE CRIMINAL STATUTES COULD PROPERLY ISSUE
UNDER THE CIRCUMSTANCES PRESENTED IN THAT CASE.  /4/  IN DOMBROWSKI,
UNLIKE MANY OF THE EARLIER CASES DENYING INJUNCTIONS, THE COMPLAINT
MADE SUBSTANTIAL ALLEGATIONS THAT: 

"THE THREATS TO ENFORCE THE STATUTES AGAINST APPELLANTS ARE NOT MADE
WITH ANY EXPECTATION OF SECURING VALID CONVICTIONS, BUT RATHER ARE PART
OF A PLAN TO EMPLOY ARRESTS, SEIZURES, AND THREATS OF PROSECUTION UNDER
COLOR OF THE STATUTES TO HARASS APPELLANTS AND DISCOURAGE THEM AND
THEIR SUPPORTERS FROM ASSERTING AND ATTEMPTING TO VINDICATE THE
CONSTITUTIONAL RIGHTS OF NEGRO CITIZENS OF LOUISIANA."  380 U.S.,AT
482.  THE APPELLANTS IN DOMBROWSKI HAD OFFERED TO PROVE THAT THEIR
OFFICES HAD BEEN RAIDED AND ALL THEIR FILES AND RECORDS SEIZED PRUSUANT
TO SEARCH AND WARRANTS THAT WERE LATER SUMMARILY VACATED BY A STATE
JUDGE FOR LACK OF PROBABLE CAUSE.  THEY ALSO OFFERED TO PROVE THAT
DESPITE THE STATE COURT ORDER QUASHING THE WARRANTS AND SUPPRESSING THE
EVIDENCE SEIZED, THE PROSECUTOR WAS CONTINUING TO THREATEN TO INITIATE
NEW PROSECUTIONS OF APPELLANTS UNDER THE SAME STATUTES, WAS HOLDING
PUBLIC HEARINGS AT WHICH PHOTOSTATIC COPIES OF THE ILLEGALLY SEIZED
DOCUMENTS WERE BEING USED, AND WAS THREATENING TO USE OTHER COPIES OF
THE ILLEGALLY SEIZED DOCUMENTS TO OBTAIN GRAND JURY INDICTMENTS AGAINST
THE APPELLANTS ON CHARGES OF VIOLATING THE SAME STATUTES.  THESE
CIRCUMSTANCES, AS VIEWED BY THE COURT SUFFICIENTLY ESTABLISH THE KIND
OF IRREPARABLE INJURY, ABOVE AND BEYOND THAT ASSOCIATED WITH THE
DEFENSE OF A SINGLE PROSECUTION BROUGHT IN GOOD FAITH, THAT HAD ALWAYS
BEEN CONSIDERED SUFFICIENT TO JUSTIFY FEDERAL INTERVENTION.  SEE, E.G.,
BEAL, SUPRA, AT 50.  INDEED, AFTER QUOTING THE COURT'S STATEMENT IN
DOUGLAS CONCERNING THE VERY RESTRICTED CIRCUMSTANCES UNDER WHICH AN
INJUNCTION COULD BE JUSTIFIED, THE COURT IN DOMBROWSKI WENT ON TO SAY: 

     "BUT THE ALLEGATIONS IN THIS COMPLAINT DEPICT A SITUATION IN

  WHICH DEFENSE OF THE STATE'S CRIMINAL PROSECUTION WILL NOT ASSURE

  ADEQUATE VINDICATION OF CONSTITUTIONAL RIGHTS.  THEY SUGGEST THAT

  A SUBSTANTIAL LOSS OF OR IMPARIMENT OF FREEDOMS OF EXPRESSION

WILL OCCUR IF APPELLANTS MUST AWAIT THE STATE COURT'S

DISPOSTITION AND ULTIMATE REVIEW IN THIS COURT OF ANY ADVERSE

  DETERMINATION.  THESE ALLEGATIONS, IF TRUE, CLEARLY SHOW

  IRREPARABLE INJURY."  380 U.S.,AT 485-486. 

AND THE COURT MADE CLEAR THAT EVEN UNDER THESE CIRCUMSTANCES THE
DISTRICT COURT ISSUING THE INJUNCTION WOULD HAVE CONTINUING POWER TO
LIFT IT AT ANY TIME AND REMIT THE PLAINTIFFS TO THE STATE COURTS IF
CIRCUMSTANCES WARRANTED.  380 U.S.,AT 491, 492.  SIMILARLY, IN CAMERON
V. JOHNSON, 390 U.S. 611 (1968), A DIVIDED COURT DENIED AN INJUNCTION
AFTER FINDING THAT THE RECORD DID NOT ESTABLISH THE NECESSARY BAD FAITH
AND HARASSMENT; THE DISSENTING JUSTICES THEMSELVES STRESSED THE VERY
LIMITED ROLE TO BE ALLOWED FOR FEDERAL INJUNCTIONS AGAINST STATE
CRIMINAL PROSECUTIONS AND DIFFERED WITH THE COURT ONLY ON THE QUESTION
WHETHER THE PARTICULAR FACTS OF THAT CASE WERE SUFFICIENT TO SHOW THAT
THE PROSECUTION WAS BROUGHT IN BAD FAITH. 

IT IS AGAINST THE BACKGROUND OF THESE PRINCIPLES THAT WE MUST JUDGE
THE PROPRIETY OF AN INJUNCTION UNDER THE CIRCUMSTANCES OF THE PRESENT
CASE.  HERE A PROCEEDING WAS ALREADY PENDING IN THE STATE COURT,
AFFORDING HARRIS AN OPPORTUNITY TO RAISE HIS CONSTITUTIONAL CLAIMS. 
THERE IS NO SUGGESTION THAT THIS SINGLE PROSECUTION AGAINST HARRIS IS
BROUGHT IN BAD FAITH OR IS ONLY ONE OF A SERIES OF REPEATED
PROSECUTIONS TO WHICH HE WILL BE SUBJECTED.  IN OTHER WORDS, THE INJURY
THAT HARRIS FACES IS SOLELY "THAT INCIDENTAL TO EVERY CRIMINAL
PROCEEDING BROUGHT LAWFULLY AND IN GOOD FAITH," DOUGLAS, SUPRA, AND
THEREFORE UNDER THE SETTLED DOCTRINE WE HAVE ALREADY DESCRIBED HE IS
NOT ENTITLED TO EQUITABLE RELIEF "EVEN IF SUCH STATUTES ARE
UNCONSTITUTIONAL," BUCK, SUPRA. 

THE DISTRICT COURT, HOWEVER, THOUGHT THAT THE COMBROWSKI DECISION
SUBSTANTIALLY BROADENED THE AVAILABILITY OF INJUNCTIONS AGAINST STATE
CRIMINAL PROSEUCTIONS AND THAT UNDER THAT DECISION THE FEDERAL COURTS
MAY GIVE EQUITABLE RELIEF, WITHOUT REGARD TO ANY SHOWING OF BAD FAITH
OR HARASSMENT, WHENEVER A STATE STATUTE IS FOUND "ON ITS FACE" TO BE
VAGUE OR OVERLY BROAD, IN VIOLATION OF THE FIRST AMENDMENT.  WE
RECOGNIZE THAT THERE ARE SOME STATEMENTS IN THE DOMBROWSKI OPINION THAT
WOULD SEEM TO SUPPORT THIS ARGUMENT.  BUT, AS WE HAVE ALREADY SEEN,
SUCH STATEMENTS WERE UNNECESSARY TO THE DECISION OF THAT CASE, BECAUSE
THE COURT FOUND THAT THE PLAINTIFFS HAD ALLEGED A BASIS FOR EQUITABLE
RELIEF UNDER THE LONG-ESTABLISHED STANDARDS.  IN ADDITION, WE DO NOT
REGARD THE REASONS ADDUCED TO SUPPORT THIS POSITION AS SUFFICIENT TO
JUSTIFY SUCH A SUBSTANTIAL DEPARTURE FROM THE ESTABLISHED DOCTRINES
REGARDING THE AVAILABILITY OF INJUNCTIVE RELIEF.  IT IS UNDOUBTEDLY
TRUE, AS THE COURT STATED IN DOMBROWSKI, THAT "(A) CRIMINAL PROSECUTION
UNDER A STATUTE REGULATING EXPRESSION USUALLY INVOLVES IMPONDERABLES
AND CONTINGENCIES THAT THEMSELVES MAY INHIBIT THE FULL EXERCISE OF
FIRST AMENDMENT FREEDOMS."  380 U.S.,AT 486.  BUT THIS SORT OF
"CHILLING EFFECT," AS THE COURT CALLED IT, SHOULD NOT BY ITSELF JUSTIFY
FEDERAL INTERVENTION.  IN THE FIRST PLACE, THE CHILLING EFFECT CANNOT
BE SATISFACTORILY ELIMINATED BY FEDERAL INJUNCTIVE RELIEF.  IN
DOMBROWSKI ITSELF THE COURT STATED THAT THE INJUNCTION TO BE ISSUED
THERE COULD BE LIFTED IF THE STATE OBTAINED AN "ACCEPTABLE LIMITING
CONSTRUCTION" FROM THE STATE COURTS.  THE COURT THEN MADE CLEAR THAT
ONCE THIS WAS DONE, PROSECUTIONS COULD THEN BE BROUGHT FOR CONDUCT
OCCURRING BEFORE THE NARROWING CONSTRUCTION WAS MADE, AND PROPER
CONVICTIONS COULD STAND SO LONG AS THE DEFENDANTS WERE NOT DEPRIVED OF
FAIR WARNING.  380 U.S.,AT 491 N. 7.  THE KIND OF RELIEF GRANTED IN
DOMBROWSKI THUS DOES NOT EFFECTIVELY ELIMINATE UNCERTAINTY AS TO THE
COVERAGE OF THE STATE STATUTE AND LEAVES MOST CITIZENS WITH VIRTUALLY
THE SAME DOUBTS AS BEFORE REGARDING THE DANGER THAT THEIR CONDUCT MIGHT
EVENTUALLY BE SUBJECTED TO CRIMINAL SANCTIONS.  THE CHILLING EFFECT
CAN, OF COURSE, BE ELIMINATED BY AN INJUNCTION THAT WOULD PROHIBIT ANY
PROSECUTION WHATEVER FOR CONDUCT OCCURRING PRIOR TO A SATISFACTORY
REWRITING OF THE STATUTE.  BUT THE STATES WOULD THEN BE STRIPPED OF ALL
POWER TO PROSECUTE EVEN THE SOCIALLY DANGEROUS AND CONSTITUTIONALLY
UNPROTECTED CONDUCT THAT HAD BEEN COVERED BY THE STATUTE, UNTIL A NEW
STATUTE COULD BE PASSED BY THE STATE LEGISLATURE AND APPROVED BY THE
FEDERAL COURTS IN POTENTIALLY LENGTHY TRIAL AND APPELLATE PROCEEDINGS. 
THUS, IN DOMBROWSKI ITSELF THE COURT CAREFULLY REAFFIRMED THE PRINCIPLE
THAT EVEN IN THE DIRECT PROSECUTION IN THE STATE'S OWN COURTS, A VALID
NARROWING CONSTRUCTION CAN BE APPLIED TO CONDUCT OCCURRING PRIOR TO THE
DATE WHEN THE NARROWING CONSTRUCTION WAS MADE, IN THE ABSENCE OF FAIR
WARNING PROBLEMS. 

MOREOVER, THE EXISTENCE OF A "CHILLING EFFECT," EVEN IN THE AREA OF
FIRST AMENDMENT RIGHTS, HAS NEVER BEEN CONSIDERED A SUFFICIENT BASIS,
IN AND OF ITSELF, FOR PROHIBITING STATE ACTION.  WHERE A STATUTE DOES
NOT DIRECTLY ABRIDGE FREE SPEECH, BUT-- WHILE REGULATING A SUBJECT
WITHIN THE STATE'S POWER-- TENDS TO HAVE THE INCIDENTAL EFFECT OF
INHIBITING FIRST AMENDMENT RIGHTS, IT IS WELL SETTLED THAT THE STATUTE
CAN BE UPHELD IF THE EFFECT ON SPEECH IS MINOR IN RELATION TO THE NEED
FOR CONTROL OF THE CONDUCT AND THE LACK OF ALTERNATIVE MEANS FOR DOING
SO.  SCHNEIDER V. STATE, 308 U.S. 147 (1939); CANTWELL V. CONNECTICUT,
310 U.S. 296 (1940); MINE WORKERS V. ILLINOIS BAR ASSN., 389 U.S. 217
(1967).  JUST AS THE INCIDENTAL "CHILLING EFFECT" OF SUCH STATUTES DOES
NOT AUTOMATICALLY RENDER THEM UNCONSTITUTIONAL, SO THE CHILLING EFFECT
THAT ADMITTEDLY CAN RESULT FROM THE VERY EXISTENCE OF OF CERTAIN LAWS
ON THE STATUTE BOOKS DOES NOT IN ITSELF JUSTIFY PROHIBITING THE STATE
FROM CARRYING OUT THE IMPORTANT AND NECESSARY TASK OF ENFORCING THESE
LAWS AGAINST SOCIALLY HARMFUL CONDUCT THAT THE STATE BELIEVES IN GOOD
FAITH TO BE PUNISHABLE UNDER ITS LAWS AND THE CONSTITUTION. 

BEYOND ALL THIS IS ANOTHER, MORE BASIC CONSIDERATION.  PROCEDURES
FOR TESTING THE CONSTITUTIONALITY OF A STATUTE "ON ITS FACE" IN THE
MANNER APPARENTLY CONTEMPLATED BY DOMBROWSKI, AND FOR THEN ENJOINING
ALL ACTION TO ENFORCE THE STATUTE UNTIL THE STATE CAN OBTAIN COURT
APPROVAL FOR A MODIFIED VERSION, ARE FUNDAMENTALLY AT ODDS WITH THE
FUNCTION OF THE FEDERAL COURTS IN OUR CONSTITUTIONAL PLAN.  THE POWER
AND DUTY OF THE JUDICIARY TO DECLARE LAWS UNCONSTITUTIONAL IS IN THE
FINAL ANALYSIS DERIVED FROM ITS RESPONSIBILITY FOR RESOLVING CONCRETE
DISPUTES BROUGHT BEFORE THE COURTS FOR DECISION; A STATUTE APPARENTLY
GOVERNING A DISPUTE CANNOT BE APPLIED BY JUDGES, CONSISTENTLY WITH
THEIR OBLIGATIONS UNDER THE SUPREMACY CLAUSE, WHEN SUCH AN APPLICATION
OF THE STATUTE WOULD CONFLICT WITH THE CONSTITUTION.  MARBURY V.
MADISON, 1 CRANCH 137 (1803).  BUT THIS VITAL RESPONSIBILITY, BROAD AS
IT IS, DOES NOT AMOUNT TO AN UNLIMITED POWER TO SURVEY THE STATUTE
BOOKS AND PASS JUDGMENT ON LAWS BEFORE THE COURTS ARE CALLED UPON TO
ENFORCE THEM.  EVER SINCE THE CONSTITUTIONAL CONVENTION REJECTED A
PROPOSAL FOR HAVING MEMBERS OF THE SUPREME COURT RENDER ADVICE
CONCERNING PENDING LEGISLATION /5/ IT HAS BEEN CLEAR THAT, EVEN WHEN
SUITS OF THIS KIND INVOLVE A "CASE OR CONTROVERSY" SUFFICIENT TO
SATISFY THE REQUIREMENTS OF ARTICLE III OF THE CONSTITUTION, THE TASK
OF ANALYZING A PROPOSED STATUTE, PINPOINTING ITS DEFICIENCIES, AND
REQUIRING CORRECTION OF THESE DEFICIENCIES BEFORE THE STATUTE IS PUT
INTO EFFECT, IS RARELY IF EVER AN APPROPRIATE TASK FOR THE JUDICIARY. 
THE COMBINATION OF THE RELATIVE REMOTENESS OF THE CONTROVERSY, THE
IMPACT ON THE LEGISLATIVE PROCESS OF THE RELIEF SOUGHT, AND ABOVE ALL
THE SPECULATIVE AND AMORPHOUS NATURE OF THE REQUIRED LINE-BY-LINE
ANALYSIS OF DETAILED STATUTES, SEE, E.G., LANDRY V. DALEY, 280 F.SUPP. 
938 (ND ILL. 1968), REV'D SUB NOM.  BOYLE V. LANDRY, POST, P. 77,
ORDINARILY RESULTS IN A KIND OF CASE THAT IS WHOLLY UNSATISFACTORY FOR
DECIDING CONSTITUTIONAL QUESTIONS, WHICHEVER WAY THEY MIGHT BE
DECIDED.  IN LIGHT OF THIS FUNDAMENTAL CONCEPTION OF THE FRAMERS AS TO
THE PROPER PLACE OF THE FEDERAL COURTS IN THE GOVERNMENTAL PROCESSES OF
PASSING AND ENFORCING LAWS, IT CAN SELDOM BE APPROPRIATE FOR THESE
COURTS TO EXERCISE ANY SUCH POWER OF PRIOR APPROVAL OR VETO OVER THE
LEGISLATIVE PROCESS. 

FOR THESE REASONS, FUNDAMENTAL NOT ONLY TO OUR FEDERAL SYSTEM BUT
ALSO TO THE BASIC FUNCTIONS OF THE JUDICIAL BRANCH OF THE NATIONAL
GOVERNMENT UNDER OUR CONSTITUTION, WE HOLD THAT THE DOMBROWSKI DECISION
SHOULD NOT BE REGARDED AS HAVING UPSET THE SETTLED DOCTRINES THAT HAVE
ALWAYS CONFINED VERY NARROWLY THE AVAILABILITY OF INJUNCTIVE RELIEF
AGAINST STATE CRIMINAL PROSECUTIONS.  WE DO NOT THINK THAT OPINION
STANDS FOR THE PROPOSITION THAT A FEDERAL COURT CAN PROPERLY ENJOIN
ENFORCEMENT OF A STATUTE SOLELY ON THE BASIS OF A SHOWING THAT THE
STATUTE "ON ITS FACE" ABRIDGES FIRST AMENDMENT RIGHTS.  THERE MAY, OF
COURSE, BE EXTRAORDINARY CIRCUMSTANCES IN WHICH THE NECESSARY
IRREPARABLE INJURY CAN BE SHOWN EVEN IN THE ABSENCE OF THE USUAL
PREREQUISITES OF BAD FAITH AND HARASSMENT.  FOR EXAMPLE, AS LONG AGO AS
THE BUCK CASE, SUPRA, WE INDICATED: 

"IT IS OF COURSE CONCEIVABLE THAT A STATUTE MIGHT BE FLAGRANTLY AND
PATENTLY VIOLATIVE OF EXPRESS CONSTITUTIONAL PROHIBITIONS IN EVERY
CLAUSE, SENTENCE AND PARAGRAPH, AND IN WHATEVER MANNER AND AGAINST
WHOMEVER AN EFFORT MIGHT BE MADE TO APPLY IT."  313 U.S.,AT 402.  OTHER
UNUSUAL SITUATIONS CALLING FOR FEDERAL INTERVENTION MIGHT ALSO ARISE,
BUT THERE IS NO POINT IN OUR ATTEMPTING NOW TO SPECIFY WHAT THEY MIGHT
BE.  IT IS SUFFICIENT FOR PURPOSES OF THE PRESENT CASE TO HOLD, AS WE
DO, THAT THE POSSIBLE UNCONSTITUTIONALITY OF A STATUTE "ON ITS FACE"
DOES NOT IN ITSELF JUSTIFY AN INJUNCTION AGAINST GOOD-FAITH ATTEMPTS TO
ENFORCE IT, AND THAT APPELLEE HARRIS HAS FAILED TO MAKE ANY SHOWING OF
BAD FAITH, HARASSMENT, OR ANY OTHER UNUSUAL CIRCUMSTANCE THAT WOULD
CALL FOR EQUITABLE RELIEF.  BECAUSE OUR HOLDING RESTS ON THE ABSENCE OF
THE FACTORS NECESSARY UNDER EQUITABLE PRINCIPLES TO JUSTIFY FEDERAL
INTERVENTION, WE HAVE NO OCCASION TO CONSIDER WHETHER 28 U.S.C. 2283,
WHICH PROHIBITS AN INJUNCTION AGAINST STATE COURT PROCEEDINGS "EXCEPT
AS EXPRESSLY AUTHORIZED BY ACT OF CONGRESS" WOULD IN AND OF ITSELF BE
CONTROLLING UNDER THE CIRCUMSTANCES OF THIS CASE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              REVERSED. 

/1/  "SEC.  11400.  DEFINITION 

"'CRIMINAL SYNDICALISM' AS USED IN THIS ARTICLE MEANS ANY DOCTRINE
OR PRECEPT ADVOCATING, TEACHING OR AIDING AND ABETTING THE COMMISSION
OF CRIME, SABOTAGE (WHICH WORD IS HEREBY DEFINED AS MEANING WILFUL AND
MALICIOUS PHYSICAL DAMAGE OR INJURY TO PHYSICAL PROPERTY), OR UNLAWFUL
ACTS OF FORCE AND VIOLENCE OR UNLAWFUL METHODS OF TERRORISM AS A MEANS
OF ACCOMPLISHING A CHANGE IN INUDSTRIAL OWNERSHIP OR CONTROL, OR
EFFECTING ANY POLITICAL CHANGE." 

"SEC. 11401.  OFFENSE; PUNISHMENT 

"ANY PERSON WHO: 

"1.  BY SPOKEN OR WRITTEN WORDS OR PERSONAL CONDUCT ADVOCATES,
TEACHES OR AIDS AND ABETS CRIMINAL SYNDICALISM OR THE DUTY, NECESSITY
OR PROPRIETY OF COMMITTING CRIME, SABOTAGE, VIOLENCE OR ANY UNLAWFUL
METHOD OF TERRORISM AS A MEANS OF ACCOMPLISHING A CHANGE IN INDUSTRIAL
OWNERSHIP OR CONTROL, OR EFFECTING ANY POLITICAL CHANGE; OR 

"2.  WILFULLY AND DELIVERATELY BY SPOKEN OR WRITTEN WORDS JUSTIFIES
OR ATTEMPTS TO JUSTIFY CRIMINAL SYNDICALISM OR THE COMMISSION OR
ATTEMPT TO COMMIT CRIME, SABOTAGE, VIOLENCE OR UNLAWFUL METHODS OF
TERRORISM WITH INTENT TO APPROVE, ADVOCATE OR FURTHER THE DOCTRINE OF
CRIMINAL SYNDICALISM; OR     "3.  PRINTS, PUBLISHES, EDITS, ISSUES OR
CIRCULATES OR PUBLICLY DISPLAYS ANY BOOK, PAPER, PAMPHLET, DOCUMENT,
POSTER OR WRITTEN OR PRINTED MATTER IN ANY OTHER FORM, CONTAINING OR
CARRYING WRITTEN OR PRINTED ADVOCACY, TEACHING, OR AID AND ABETMENT OF,
OR ADVISING, CRIMINAL SYNDICALISM; OR

"4.  ORGANIZES OR ASSISTS IN ORGANIZING, OR IS OR KNOWINGLY BECOMES
A MEMBER OF, ANY ORGANIZATION, SOCIETY, GROUP OR ASSEMBLAGE OF PERSONS
ORGANIZED OR ASSEMBLED TO ADVOCATE, TEACH OR AID AND ABET CRIMINAL
SYNDICALISM; OR 

"5.  WILFULLY BY PERSONAL ACT OR CONDUCT, PRACTICES OR COMMITS ANY
ACT ADVISED, ADVOCATED, TAUGHT OR AIDED AND ABETTED BY THE DOCTRINE OR
PRECEPT OF CRIMINAL SYNDICALISM, WITH INTENT TO ACCOMPLISH A CHANGE IN
INDUSTRIAL OWNERSHIP OR CONTROL, OR EFFECTING ANY POLITICAL CHANGE; 

"IS GUILTY OF A FELONY AND PUNISHABLE BY IMPRISONMENT IN THE STATE
PRISON NOT LESS THAN ONE NOR MORE THAN 14 YEARS." 

/2/  APPELLEES DID NOT EXPLICITLY ASK FOR A DECLARATORY JUDGMENT IN
THEIR COMPLAINT.  THEY DID, HOWEVER, ASK THE DISTRICT COURT TO GRANT
"SUCH OTHER AND FURTHER RELIEF AS TO THE COURT MAY SEEM JUST AND
PROPER," AND THE DISTRICT COURT IN FACT GRANTED A DECLARATORY
JUDGMENT.  FOR THE REASONS STATED IN OUR OPINION TODAY IN SAMUELS V.
MACKELL, POST, P. 66, WE HOLD THAT DECLARATORY RELIEF IS ALSO IMPROPER
WHEN A PROSECUTION INVOLVING THE CHALLENGED STATUTE IS PENDING IN STATE
COURT AT THE TIME THE FEDERAL SUIT IS INITIATED. 

/3/  FOR AN INTERESTING DISCUSSION OF THE HISTORY OF THIS
CONGRESSIONAL POLICY UP TO 1941, SEE TOUCEY V. NEW YORK LIFE INS. CO.,
314 U.S. 118 (1941). 

/4/  NEITHER THE CASES DEALING WITH STANDING TO RAISE CLAIMS OF
VAGUENESS OR OVERBREADTH, E.G., THONRHILL V. ALABAMA, 310 U.S. 88
(1940), NOR THE LOYALTY OATH CASES, E.G., BAGGETT V. BULLITT, 377 U.S.
360 (1964), CHANGEO THE BASIC PRINCIPLES GOVERNING THE PROPRIETY OF
INJUNCTIONS AGAINST STATE CRIMINAL PROSECUTIONS.  IN THE STANDING CASES
WE ALLOWED ATTACKS ON OVERLY BROAD OR VAGUE STATUTES IN THE ABSENCE OF
ANY SHOWING THAT THE DEFENDANT'S CONDUCT COULD NOT BE REGULATED BY SOME
PROPERLY DRAWN STATUTE.  BUT IN EACH OF THESE CASES THE STATUTE WAS NOT
MERELY VAGUE OR OVERLY BROAD "ON ITS FACE"; THE STATUTE WAS HELD TO BE
VAGUE OR OVERLY BROAD AS CONSTRUED AND APPLIED TO A PARTICULAR
DEFENDANT IN A PARTICULAR CASE.  IF THE STATUTE HAD BEEN TOO VAGUE AS
WRITTEN BUT SUFFICIENTLY NARROW AS APPLIED, PROSECUTIONS AND
CONVICTIONS UNDER IT WOULD ORDINARILY HAVE BEEN PERMISSIBLE.  SEE
DOMBROWSKI, SUPRA, AT 491 N. 7. 

IN BAGGETT AND SIMILAR CASES WE ENJOINED STATE OFFICIALS FROM
DISCHARGING EMPLOYEES WHO FAILED TO TAKE CERTAIN LOYALTY OATHS.  WE
HELD THAT THE STATES WERE WITHOUT POWER TO EXACT THE PROMISES INVOLVED,
WITH THEIR VAGUE AND UNCERTAIN CONTENT CONCERNING ADVOCACY AND
POLITICAL ASSOCIATION, AS A CONDITION OF EMPLOYMENT.  APART FROM THE
FACT THAT ANY PLAINTIFF DISCHARGED FOR EXERCISING HIS CONSTITUTIONAL
RIGHT TO REFUSE TO TAKE THE OATH WOULD HAVE HAD NO ADEQUATE REMEDY AT
LAW, THE RELIEF SOUGHT WAS OF COURSE THE KIND THAT RAISES NO SPECIAL
PROBLEM-- AN INJUNCTION AGAINST ALLEGEDLY UNCONSTITUTIONAL STATE ACTION
(DISCHARGING THE EMPLOYEES) THAT IS NOT PART OF A CRIMINAL
PROSECUTION. 

/5/  SEE 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, P. 21
(FARRAND ED. 1911). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN JOINS,
CONCURRING.  /1/ 

THE QUESTIONS THE COURT DECIDES TODAY ARE IMPORTANT ONES.  PERHAPS
AS IMPORTANT, HOWEVER, IS A RECOGNITION OF THE AREAS INTO WHICH TODAY'S
HOLDINGS DO NOT NECESSARILY EXTEND.  IN ALL OF THESE CASES, THE COURT
DEALS ONLY WITH THE PROPER POLICY TO BE FOLLOWED BY A FEDERAL COURT
WHEN ASKED TO INTERVENE BY INJUNCTION OR DECLARATORY JUDGMENT IN A
CRIMINAL PROSECUTION WHICH IS CONTEMPORANEOUSLY PENDING IN A STATE
COURT. 

IN BASING ITS DECISIONS ON POLICY GROUNDS, THE COURT DOES NOT REACH
ANY QUESTIONS CONCERNING THE INDEPENDENT FORCE OF THE FEDERAL ANTI
INJUNCTION STATUTE, 28 U.S.C. 2283.  THUS WE DO NOT DECIDE WHETHER THE
WORD "INJUNCTION" IN SEC. 2283 SHOULD BE INTERPRETED TO INCLUDE A
DECLARATORY JUDGMENT, OR WHETHER AN INJUNCTION TO STAY PROCEEDINGS IN A
STATE COURT IS "EXPRESSLY AUTHORIZED" BY SEC. 1 OF THE CIVIL RIGHTS ACT
OF 1871, NOW 42 U.S.C. 1983.  /1A/  AND SINCE ALL THESE CASES INVOLVE
STATE CRIMINAL PROSECUTIONS, WE DO NOT DEAL WITH THE CONSIDERATIONS
THAT SHOULD GOVERN A FEDERAL COURT WHEN IT IS ASKED TO INTERVENE IN
STATE CIVIL PROCEEDINGS, WHERE, FOR VARIOUS REASONS, THE BALANCE MIGHT
BE STRUCK DIFFERENTLY.  /2/  FINALLY, THE COURT TODAY DOES NOT RESOLVE
THE PROBLEMS INVOLVED WHEN A FEDERAL COURT IS ASKED TO GIVE INJUNCTIVE
OR DECLARATORY RELIEF FROM FUTURE STATE CRIMINAL PROSECUTIONS. 

THE COURT CONFINES ITSELF TO DECIDING THE POLICY CONSIDERATIONS THAT
IN OUR FEDERAL SYSTEM MUST PREVAIL WHEN FEDERAL COURTS ARE ASKED TO
INTERFERE WITH PENDING STATE PROSECUTIONS.  WITHIN THIS AREA, WE HOLD
THAT A FEDERAL COURT MUST NOT, SAVE IN EXCEPTIONAL AND EXTREMELY
LIMITED CIRCUMSTANCES, INTERVENE BY WAY OF EITHER INJUNCTION OR
DECLARATION IN AN EXISTING STATE CRIMINAL PROSECUTION.  /3/  SUCH
CIRCUMSTANCES EXIST ONLY WHEN THERE IS A THREAT OF IRREPARABLE INJURY
"BOTH GREAT AND IMMEDIATE."  A THREAT OF THIS NATURE MIGHT BE SHOWN IF
THE STATE CRIMINAL STATUTE IN QUESTION WERE PATENTLY AND FLAGRANTLY
UNCONSTITUTIONAL ON ITS FACE, ANTE, AT 53-54; CF. EVERS V. DWYER, 358
U.S. 202, OR IF THERE HAS BEEN BAD FAITH AND HARASSMENT-- OFFICIAL
LAWLESSNESS-- IN A STATUTE'S ENFORCEMENT, ANTE, AT 47-49.  IN SUCH
CIRCUMSTANCES THE REASONS OF POLICY FOR DEFERRING TO STATE
ADJUDICATIONS ARE OUTWEIGHED BY THE INJURY FLOWING FROM THE VERY
BRINGING OF THE STATE PROCEEDINGS, BY THE PERVERSION OF THE VERY
PROCESS THAT IS SUPPOSED TO PROVIDE VINDICATION, AND BY THE NEED FOR
SPEEDY AND EFFECTIVE ACTION TO PROTECT FEDERAL RIGHTS.  CF. GEORGIA V.
RACHEL, 384 U.S. 780. 

/1/  (THIS OPINION APPLIES ALSO TO NO. 7, SAMUELS ET AL. V. MACKELL
ET AL., AND NO. 9, FERNANDEZ V. MACKELL ET AL., POST, P. 66; NO. 41,
DYSON ET AL. V. STEIN, POST, P. 200; AND NO. 83, BYRNE ET AL. V.
KARALEXIS ET AL., POST, P. 216.) 

/1A/  SEE ALSO CAMERON V. JOHNSON, 390 U.S. 611, 613-614, N. 3;
DOMBROWSKI V. PFISTER, 380 U.S. 479, 484 N. 2. 

/2/  COURTS OF EQUITY HAVE TRADITIONALLY SHOWN GREATER RELUCTANCE TO
INTERVENE IN CRIMINAL PROSECUTIONS THAN IN CIVIL CASES.  SEE ANTE, AT
43-44; DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157, 163-164.  THE
OFFENSE TO STATE INTERESTS IS LIKELY TO BE LESS IN A CIVIL PROCEEDING. 
A STATE'S DECISION TO CLASSIFY CONDUCT AS CRIMINAL PROVIDES SOME
INDICATION OF THE IMPORTANCE IT HAS ASCRIBED TO PROMPT AND UNENCUMBERED
ENFORCEMENT OF ITS LAW.  BY CONTRAST, THE STATE MIGHT NOT EVEN BE A
PARTY IN A PROCEEDING UNDER A CIVIL STATUTE. 

CF. LAW STUDENTS CIVIL RIGHTS RESEARCH COUNCIL V. WADMOND, POST, P.
154; WISCONSIN V. CONSTANTINEAU, 400 U.S. 433; ROSADO V. WYMAN, 397
U.S. 397. 

THESE CONSIDERATIONS WOULD NOT, TO BE SURE, SUPPORT ANY DISTINCTION
BETWEEN CIVIL AND CRIMINAL PROCEEDINGS SHOULD THE BAN OF 28 U.S.C.
2283, WHICH MAKES NO SUCH DISTINCTION, BE HELD UNAFFECTED BY 42 U.S.C.
1983. 

/3/  THE NEGATIVE PREGNANT IN THIS SENTENCE-- THAT A FEDERAL COURT
MAY, AS A MATTER OF POLICY, INTERVENE WHEN SUCH "EXCEPTIONAL AND
EXTREMELY LIMITED CIRCUMSTANCES" ARE FOUND-- IS SUBJECT TO ANY FURTHER
LIMITATIONS THAT MAY BE PLACED ON SUCH INTERVENTION BY 28 U.S.C. 2283. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE WHITE AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN THE RESULT. 

I AGREE THAT THE JUDGMENT OF THE DISTRICT COURT SHOULD BE REVERSED. 
APPELLEE HARRIS HAD BEEN INDICTED FOR VIOLATIONS OF THE CALIFORNIA
CRIMINAL SYNDICALISM ACT BEFORE HE SUED IN FEDERAL COURT.  HE HAS NOT
ALLEGED THAT THE PROSECUTION WAS BROUGHT IN BAD FAITH TO HARASS HIM. 
HIS CONSTITUTIONAL CONTENTIONS MAY BE ADEQUATELY ADJUDICATED IN THE
STATE CRIMINAL PROCEEDING, AND FEDERAL INTERVENTION AT HIS INSTANCE WAS
THEREFORE IMPROPER.  /1/ 

APPELLEES HIRSCH AND DAN HAVE ALLEGED THAT THEY "FEEL INHIBITED" BY
THE STATUTE AND THE PROSECUTION OF HARRIS FROM ADVOCATING THE PROGRAM
OF THE PROGRESSIVE LABOR PARTY.  APPELLEE BROSLAWSKY HAS ALLEGED THAT
HE "IS UNCERTAIN" WHETHER AS AN INSTRUCTOR IN COLLEGE HISTORY HE CAN
UNDER THE STATUTE GIVE INSTRUCTION RELATING TO THE COMMUNIST MANIFESTO
AND SIMILAR REVOLUTIONARY WORKS.  NONE OF THESE APPELLEES HAS STATED
ANY GROUND FOR A REASONABLE EXPECTATION THAT HE WILL ACTUALLY BE
PROSECUTED UNDER THE STATUTE FOR TAKING THE ACTIONS CONTEMPLATED.  THE
COURT BELOW EXPRESSLY DECLINED TO RELY ON ANY FINDING "THAT . . . DAN,
HIRSCH OR BROSLAWSKY STANDS) IN ANY DANGER OF PROSECUTION BY THE
(STATE), BECAUSE OF THE ACTIVITIES THAT THEY ASCRIBED TO THEMSELVES IN
THE COMPLAINT . . . "  281 F.SUPP.  507, 516.  IT IS TRUE, AS THE COURT
BELOW POINTED OUT, THAT "(WELL-INTENTIONED PROSECUTORS AND JUDICIAL
SAFEGUARDS DO NOT NEUTRALIZE THE VICE OF A VAGUE LAW," BAGGETT V.
BULLITT, 377 U.S. 360, 373 (1964), BUT STILL THERE MUST BE A LIVE
CONTROVERSY UNDER ART. III.  NO THREATS OF PROSECUTION OF THESE
APPELLEES ARE ALLEGED.  ALTHOUGH DAN AND HIRSCH HAVE ALLEGED THAT THEY
DESIRE TO ADVOCATE DOCTRINES OF THE PROGRESSIVE LABOR PARTY, THEY HAVE
NOT ASSERTED THAT THEIR ADVOCACY WILL BE THE SAME GENRE AS THAT WHICH
BROUGHT ON THE PROSECUTION OF HARRIS.  IN SHORT, THERE IS NO REASON TO
THINK THAT CALIFORNIA HAS ANY RIPE CONTROVERSY WITH THEM.  SEE GOLDEN
V. ZWICKLER, 394 U.S. 103 (1969); PEREZ V. LEDESMA, POST, P. 93
(BRENNAN, J., CONCURRING AND DISSENTING). 

/1/  THE DISTRICT COURT ERRONEOUSLY INTERPRETED ZWICKLER V. KOOTA,
389 U.S. 241 (1967), AS AUTHORIZING FEDERAL COURT CONSIDERATION OF A
CONSTITUTIONAL CLAIM AT ISSUE IN A PENDING STATE PROCEEDING, WHETHER OR
NOT THE FEDERAL COURT PLAINTIFF HAD PRESENTED HIS CLAIM TO THE STATE
COURT.  IT SUFFICES HERE TO NOTE THAT IN ZWICKLER NO STATE PROCEEDING
WAS PENDING AT THE TIME JURISDICTION ATTACHED IN THE FEDERAL COURT. 
THE COURT BELOW ASLO THOUGHT IT SIGNIFICANT THAT APPELLEE HARRIS HAD
RAISED HIS CONSTITUTIONAL CLAIM IN THE STATE COURTS IN A MOTION TO
DISMISS THE INDICTMENT AND IN PETITIONS IN THE STATE APPELLATE COURTS
FOR A WRIT OF PROHIBITION.  IT WAS QUESTIONED AT ORAL ARGUMENT WHETHER
CONSTITUTIONAL ISSUES COULD PROPERLY BE RAISED BY THE PROCEDURES
INVOKED BY HARRIS, AND IT WAS SUGGESTED THAT THE DENIAL OF HARRIS'
MOTIONS DID NOT NECESSARILY INVOLVE REJECTION OF HIS CONSTITUTIONAL
CLAIMS.  HOWEVER, EVEN IF THE CALIFORNIA COURTS HAD AT THAT
INTERLOCUTORY STAGE REJECTED HARRIS' CONSTITUTIONAL ARGUMENTS, THAT
REJECTION WOULD NOT HAVE PROVIDED A JUSTIFICATION FOR INTERVENING BY
THE DISTRICT COURT.  HARRIS COULD HAVE SOUGHT DIRECT REVIEW OF THAT
REJECTION OF HIS CONSTITUTIONAL CLAIMS OR HE COULD HAVE RENEWED THE
CLAIMS IN REQUESTS FOR INSTRUCTIONS, AND ON DIRECT REVIEW OF ANY
CONVICTION IN THE STATE COURTS AND IN THIS COURT.  THESE WERE THE
PROPER MODES FOR PRESENTATION AND THESE THE PROPER FORUMS FOR
CONSIDERATION OF THE CONSTITUTIONAL ISSUES. 

MR. JUSTICE DOUGLAS, DISSENTING.  /1/ 

THE FACT THAT WE ARE IN A PERIOD OF HISTORY WHEN ENORMOUS
EXTRAJUDICIAL SANCTIONS ARE IMPOSED ON THOSE WHO ASSERT THEIR FIRST
AMENDMENT RIGHTS IN UNPOPULAR CAUSES EMPHASIZES THE WISDOM OF
DOMBROWSKI V. PFISTER, 380 U.S. 479.  THERE WE RECOGNIZED THAT IN TIMES
OF REPRESSION, WHEN INTERESTS WITH POWERFUL SPOKESMEN GENERATE SYMBOLIC
POGROMS AGAINST NONCONFORMISTS, THE FEDERAL JUDICIARY, CHARGED BY
CONGRESS WITH SPECIAL VIGILANCE FOR PROTECTION OF CIVIL RIGHTS, HAS
SPECIAL RESPONSIBILITIES TO PREVENT AN EROSION OF THE INDIVIDUAL'S
CONSTITUTIONAL RIGHTS. 

DOMBROWSKI REPRESENTS AN EXCEPTION TO THE GENERAL RULE THAT FEDERAL
COURTS SHOULD NOT INTERFERE WITH STATE CRIMINAL PROSECUTIONS.  THE
EXCEPTION DOES NOT ARISE MERELY BECAUSE PROSECUTIONS ARE THREATENED TO
WHICH THE FIRST AMENDMENT WILL BE THE PROFFERED DEFENSE.  DOMBROWSKI
GOVERNS STATUTES WHICH ARE BLUNDERBUSS BY THEMSELVES OR WHEN USED EN
MASSE-- THOSE THAT HAVE AN "OVERBROAD" SWEEP.  "IF THE RULE WERE
OTHERWISE, THE CONTOURS OF REGULATION WOULD HAVE TO BE HAMMERED OUT
CASE BY CASE-- AND TESTED ONLY BY THOSE HARDY ENOUGH TO RISK CRIMINAL
PROSECUTION TO DETERMINE THE PROPER SCOPE OF REGULATION."  ID., AT
487.  IT WAS IN THE CONTEXT OF OVERBROAD STATE STATUTES THAT WE SPOKE
OF THE "CHILLING EFFECT UPON THE EXERCISE OF FIRST AMENDMENT RIGHTS"
CAUSED BY STATE PROSECUTIONS.  IBID. 

AS RESPECTS OVERBROAD STATUTES WE SAID AT LEAST AS EARLY AS 1940 THAT
WHEN DEALING WITH FIRST AMENDMENT RIGHTS WE WOULD INSIST ON STATUTES
"NARROWLY DRAWN TO PREVENT THE SUPPOSED EVIL."  CANTWELL V.
CONNECTICUT, 310 U.S. 296, 307. 

THE SPECIAL CIRCUMSTANCES WHEN FEDERAL INTERVENTION IN A STATE
CRIMINAL PROCEEDING IS PERMISSIBLE ARE NOT RESTRICTED TO BAD FAITH ON
THE PART OF STATE OFFICIALS OR THE THREAT OF MULTIPLE PROSECUTIONS. 
THEY ALSO EXIST WHERE FOR ANY REASON THE STATE STATUTE BEING ENFORCED
IS UNCONSTITUTIONAL ON ITS FACE.  AS MR. JUSTICE BUTLER, WRITING FOR
THE COURT, SAID IN TERRACE V. THOMPSON, 263 U.S. 197, 214: 

"EQUITY JURISDICTION WILL BE EXERCISED TO ENJOIN THE THREATENED
ENFORCEMENT OF A STATE LAW WHICH CONTRAVENES THE FEDERAL CONSTITUTION
WHEREVER IT IS ESSENTIAL IN ORDER EFFECTUALLY TO PROTECT PROPERTY
RIGHTS AND THE RIGHTS OF PERSONS AGAINST INJURIES OTHERWISE
IRREMEDIABLE; AND IN SUCH A CASE A PERSON, WHO AS AN OFFICER OF THE
STATE IS CLOTHED WITH THE DUTY OF ENFORCING ITS LAWS AND WHO THREATENS
AND IS ABOUT TO COMMENCE PROCEEDINGS, EITHER CIVIL OR CRIMINAL, TO
ENFORCE SUCH A LAW AGAINST PARTIES AFFECTED, MAY BE ENJOINED FROM SUCH
ACTION BY A FEDERAL COURT OF EQUITY."     OUR DOMBROWSKI DECISION WAS
ONLY ANOTHER FACET OF THE SAME PROBLEM. 

IN YOUNGER, "CRIMINAL SYNDICALISM" IS DEFINED SO BROADLY AS TO
JEOPARDIZE "TEACHING" THAT SOCIALISM IS PREFERABLE TO FREE ENTERPRISE. 

HARRIS'"CRIME" WAS DISTRIBUTING LEAFLETS ADVOCATING CHANGE IN
INDUSTRIAL OWNERSHIP THROUGH POLITICAL ACTION.  THE STATUTE UNDER WHICH
HE WAS INDICTED WAS THE ONE INVOLVED IN WHITNEY V. CALIFORNIA, 274 U.S.
357, A DECISION WE OVERRULED IN BRANDENBURG V. OHIO, 395 U.S. 444,
449.  /1A/     IF THE "ADVOCACY" WHICH HARRIS USED WAS AN ATTEMPT AT
PERSUASION THROUGH THE USE OF BULLETS, BONBS, AND ARSON, WE WOULD HAVE
A DIFFERENT CASE.  BUT HARRIS IS CHARGED ONLY WITH DISTRIBUTING
LEAFLETS ADVOCATING POLITICAL ACTION TOWARD HIS OBJECTIVE.  HE TRIED
UNSUCCESSFULLY TO HAVE THE STATE COURT DISMISS THE INDICTMENT ON
CONSTITUTIONAL GROUNDS.  HE RESORTED TO THE STATE APPELLATE COURT FOR
WRITS OF PROHIBITION TO PREVENT THE TRIAL, BUT TO NO AVAIL.  HE WENT TO
THE FEDERAL COURT AS A MATTER OF LAST RESORT IN AN EFFORT TO KEEP THIS
UNCONSTITUTIONAL TRIAL FROM BEING SADDLED ON HIM. 

THE "ANTI-INJUNCTION" STATUTE, 28 U.S.C. 2283, /2/  IS NOT A BAR TO
A FEDERAL INJUNCTION UNDER THESE CIRCUMSTANCES.  THAT STATUTE WAS
ADOPTED IN 1793, SEC. 5, 1 STAT. 335, /3/  AND REFLECTED THE EARLY VIEW
OF THE PROPER ROLE OF THE FEDERAL COURTS WITHIN AMERICAN FEDERALISM. 

WHATEVER THE BALANCE OF THE PRESSURES OF LOCALISM AND NATIONALISM
PRIOR TO THE CIVIL WAR, THEY WERE FUNDAMENTALLY ALTERED BY THE WAR. 
THE CIVIL WAR AMENDMENTS MADE CIVIL RIGHTS A NATIONAL CONCERN.  THOSE
AMENDMENTS, ESPECIALLY SEC. 5 OF THE FOURTEENTH AMENDMENT, CEMENTED THE
CHANGE IN AMERICAN FEDERALISM BROUGHT ON BY THE WAR.  CONGRESS
IMMEDIATELY COMMENCED TO USE ITS NEW POWERS TO PASS LEGISLATION.  JUST
AS THE FIRST JUDICIARY ACT, 1 STAT. 73, AND THE "ANTI-INJUNCTION"
STATUTE REPRESENTED THE EARLY VIEWS OF AMERICAN FEDERALISM, THE
RECONSTRUCTION STATUTES, INCLUDING THE ENLARGEMENT OF FEDERAL
JURISDICTION, /4/  REPRESENT A LATER VIEW OF AMERICAN FEDERALISM. 

ONE OF THE JURISDICTION-ENLARGING STATUTES PASSED DURING
RECONSTRUCTION WAS THE ACT OF APRIL 20, 1871.  17 STAT. 13.  BEYOND ITS
JURISDICTIONAL PROVISION THAT STATUTE, NOW CODIFIED AS 42 U.S.C. 1983,
PROVIDES: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,

 REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY,

  SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED

  STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE

  DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY

  THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED

  IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING

  FOR REDRESS." 

A STATE LAW ENFORCEMENT OFFICER IS SOMEONE ACTING UNDER "COLOR OF
LAW" EVEN THOUGH HE MAY BE MISUSING HIS AUTHORITY.  MONROE V. PAPE, 365
U.S. 167.  AND PROSECUTION UNDER A PATENTLY UNCONSTITUTIONAL STATUTE IS
A "DEPRIVATION OF . . . RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY
THE CONSTITUTION."  "SUITS) IN EQUITY" OBVIOUSLY INCLUDES INJUNCTIONS. 
/5/ 

I HOLD TO THE VIEW THAT SEC. 1983 IS INCLUDED IN THE "EXPRESSLY
AUTHORIZED" EXCEPTION TO SEC. 2283, /6/  A POINT NOT RAISED OR
CONSIDERED IN THE MUCH-DISCUSSED DOUGLAS V. CITY OF JEANNETTE, 319 U.S.
157.  THERE IS NO MORE GOOD REASON FOR ALLOWING A GENERAL STATUTE
DEALING WITH FEDERALISM PASSED AT THE END OF THE 18TH CENTURY TO
CONTROL ANOTHER STATUTE ALSO DEALING WITH FEDERALISM, PASSED ALMOST 80
YEARS LATER, THAN TO CONCLUDE THAT THE EARLY CONCEPTS OF FEDERALISM
WERE NOT CHANGED BY THE CIVIL WAR. 

THAT WAS THE VIEW OF JUDGE WILL IN THE BOYLE CASE, LANDRY V. DALEY,
288 F.SUPP.  200, 223.  IN SPEAKING OF THE CIVIL WAR AMENDMENTS AS "A
CONSTITUTIONAL REVOLUTION IN THE NATURE OF AMERICAN FEDERALISM" HE
SAID: 

     "THIS REVOLUTION, IN TURN, REPRESENTS A HISTORICAL JUDGMENT. 

  IT EMPHASIZES THE OVERWHELMING CONCERN OF THE RECONSTRUCTION

  CONGRESSES FOR THE PROTECTION OF THE NEWLY WON RIGHTS OF

  FREEDMEN.  BY INTERPOSING THE FEDERAL GOVERNMENT BETWEEN THE

  STATES AND THEIR INHABITANTS, THESE CONGRESSES SOUGHT TO AVOID

  THE RISK OF NULLIFICATION OF THESE RIGHTS BY THE STATES.  WITH

  THE SUBSEQUENT PASSAGE OF THE ACT OF 1871, CONGRESS SOUGHT TO

  IMPLEMENT THIS PLAN BY EXPANDING THE FEDERAL JUDICIAL POWER. 

  SECTION 1983 IS, THEREFORE, NOT ONLY AN EXPRESSION OF THE

IMPORTANCE OF PROTECTING FEDERAL RIGHTS FROM INFRINGEMENT BY THE

  STATES BUT ALSO, WHERE NECESSARY, THE DESIRE TO PLACE THE

  NATIONAL GOVERNMENT BETWEEN THE STATE AND ITS CITIZENS."  IBID. 

IN BOYLE THE STATUTE MAKES "INTIMIDATION" TO "COMMIT ANY CRIMINAL
OFFENSE" AN OFFENSE.  THE THREE-JUDGE COURT SAID: 

"IT . . . MAKES CRIMINAL THREATS SUCH AS THE FOLLOWING:  (1) THREATS
BY DISSENTIENT GROUPS TO ENGAGE IN DISORDERLY CONDUCT, THREATS BY
RESIDENTS OF A HIGH-CRIME NEIGHBORHOOD TO CARRY CONCEALED WEAPONS FOR
THEIR OWN PROTECTION, AND THREATS BY MOTHERS TO BLOCK A DANGEROUS STATE
HIGHWAY TO DEMONSTRATE THE NEED FOR INCREASED SAFETY MEASURES.  INDEED,
THE PHRASE 'COMMIT ANY CRIMINAL OFFENSE' IS SO BROAD AS TO INCLUDE
THREATS TO COMMIT MISDEAMEANORS PUNISHABLE BY FINE ONLY.  THESE EVILS
ARE NOT SO SUBSTANTIAL THAT THE STATE'S INTEREST IN PROHIBITING THE
THREAT OF THEM OUTWEIGHS THE PUBLIC INTEREST IN GIVING LEGITIMATE
POLITICAL DISCUSSION A WIDE BERTH."  LANDRY V. DALEY, 280 F.SUPP.  938,
964. 

LANDRY AND OTHERS BROUGHT A CLASS ACTION CHALLENGING THE
CONSTITUTIONAL VALIDITY OF FIVE SECTIONS OF THE ILLINOIS STATUTES. 
THEY ALLEGED ARRESTS UNDER ALL BUT TWO OF THE CHALLENGED SECTIONS. 
JUST BEFORE TRIAL THEY ABANDONED THEIR CHALLENGE OF TWO OF THE FIVE
CONSTITUTIONAL AND THE "MOB ACTION" AND "INTIMIDATION" SECTIONS
UNCONSTITUTIONAL.  APPELLANTS HAVE NOT APPEALED THE DETERMINATION THAT
THE "MOB ACTION" SECTION OF THE ILLINOIS STATUTES IS UNCONSTITUTIONAL. 

THE COURT DISMISSES THIS CASE BECAUSE THERE IS NO SHOWING OF
IRREPARABLE INJURY ON WHAT IT DESCRIBES AS "FLIMSY ALLEGATIONS."  POST,
AT 81.  THE COURT STATES:  "THERE IS NOTHING CONTAINED IN THE
ALLEGATIONS OF THE COMPLAINT FROM WHICH ONE COULD INFER THAT ANY ONE OR
MORE OF THE CITIZENS WHO BROUGHT THIS SUIT IS IN ANY JEOPARDY OF
SUFFERING IRREPARABLE INJURY IF THE STATE IS LEFT FREE TO PROSECUTE
UNDER THE INTIMIDATION STATUTE IN THE NORMAL MANNER."  IBID.  LANDRY
AND HIS ASSOCIATES, HOWEVER, ALLEGE THAT APPELLANTS ARE USING THE
INTIMIDATION SECTION ALONG WITH SEVERAL OTHER SECTIONS TO HARASS THEM,
NOT TO PROSECUTE THEM IN THE NORMAL MANNER.  THEY ALLEGE THAT
APPELLANTS ARE ARRESTING THEM WITHOUT WARRANTS OR PROBABLE CAUSE, AND
DETAINING THEM ON EXCESSIVE BAIL.  THEY ALLEGE THAT THE ARRESTS ARE
MADE DURING PEACEFUL DEMONSTRATIONS AND WITHOUT ANY EXPECTATION OF
SECURING VALID CONVICTIONS.  IN SUM, LANDRY AND HIS GROUP ALLEGE THAT
THE "INTIMIDATION" SECTION IS ONE OF SEVERAL STATUTES WHICH APPELLANTS
ARE USING EN MASSE AS PART OF A PLAN TO HARASS THEM AND DISCOURAGE
THEIR EXERCISE OF THEIR FIRST AMENDMENT RIGHTS.  THERE IS THUS A LIVELY
AND EXISTING CASE OR CONTROVERSY CONCERNING FIRST AMENDMENT RIGHTS. 
AND I BELIEVE THAT THE FEDERAL COURT ACTED IN OUR FINEST TRADITION WHEN
IT ISSUED THE STAY. 

AS THE STANDARDS OF CERTAINTY IN STATUTES CONTAINING CRIMINAL
SANCTIONS ARE HIGHER THAN THOSE IN STATUTES CONTAINING CIVIL SANCTIONS,
SO ARE THE STANDARDS OF CERTAINTY TOUCHING ON FREEDOM OF EXPRESSION
HIGHER THAN THOSE IN OTHER AREAS.  WINTERS V. NEW YORK, 333 U.S. 507,
515-516.  "THERE MUST BE ASCERTAINABLE STANDARDS OF GUILT.  MEN OF
COMMON INTELLIGENCE CANNOT BE REQUIRED TO GUESS AT THE MEANING OF THE
ENACTMENT.  THE VAGUENESS MAY BE FROM UNCERTAINTY IN REGARD TO PERSONS
WITHIN THE SCOPE OF THE ACT . . . OR IN REGARD TO THE APPLICABLE TESTS
TO ASCERTAIN GUILT." 

WHERE FREEDOM OF EXPRESSION IS AT STAKE THESE REQUIREMENTS MUST BE
MORE SEDULOUSLY ENFORCED. 

IN YOUNGER THERE IS A PROSECUTION UNDER AN UNCONSTITUTIONAL STATUTE
AND RELIEF IS DENIED.  IN BOYLE THERE IS HARASSMENT BUT AS YET NO
PROSECUTIONS.  ALLEGATIONS OF A PROSECUTION OR HARASSMENT UNDER
FACIALLY UNCONSTITUTIONAL STATUTES SHOULD BE SUFFICIENT FOR THE
EXERCISE OF FEDERAL EQUITY POWERS. 

DOMBROWSKI AND 42 U.S.C. 1983 INDICATE WHY IN BOYLE FEDERAL
INTERVENTION AGAINST ENFORCEMENT OF THE STATE LAWS IS APPROPRIATE.  THE
CASE OF YOUNGER IS EVEN STRONGER.  THERE THE STATE STATUTE CHALLENGED
IS THE PROTOTYPE OF THE ONE WE HELD UNCONSTITUTIONAL IN BRANDENBURG V.
OHIO, SUPRA. 

THE ETERNAL TEMPTATION, OF COURSE, HAS BEEN TO ARREST THE SPEAKER
RATHER THAN TO CORRECT THE CONDITIONS ABOUT WHICH HE COMPLAINS.  I SEE
NO REASON WHY THESE APPELLEES SHOULD BE MADE TO WALK THE TREACHEROUS
GROUND OF THESE STATUTES.  THEY, LIKE OTHER CITIZENS, NEED THE UMBRELLA
OF THE FIRST AMENDMENT AS THEY STUDY, ANALYZE, DISCUSS, AND DEBATE THE
TROUBLES OF THESE DAYS.  WHEN CRIMINAL PROSECUTIONS CAN BE LEVELED
AGAINST THEM BECAUSE THEY EXPRESS UNPOPULAR VIEWS, THE SOCIETY OF THE
DIALOGUE IS IN DANGER. 

/1/  "(THIS OPINION ALSO APPLIES TO NO. 4, BOYLE, JUDGE, ET AL. V.
LANDRY ET AL., POST, P. 77.) 

/1A/  SEE LINDE, "CLEAR AND PRESENT DANGER" REEXAMINED:  DISSONANCE
IN THE BRANDENBURG CONCERTO, 22 STAN.L.REV.  1163 (1970). 

/2/  "A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO
STAY PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT
OF CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO
PROTECT OR EFFECTUATE ITS JUDGMENTS." 

/3/  IN ITS INITIAL FORM THE "ANTI-INJUNCTION" ACT PROVIDED:  "(N)
OR SHALL A WRIT OF INJUNCTION BE GRANTED (BY ANY COURT OF THE UNITED
STATES) TO STAY PROCEEDINGS IN ANY COURT OF A STATE."  THERE WERE NO
EXCEPTIONS.  IN 1874 IT WAS SUBSEQUENTLY MODIFIED BY AN INSERTION OF
THE REVISERS TO READ:  "THE WRIT OF INJUNCTION SHALL NOT BE GRANTED BY
ANY COURT OF THE UNITED STATES TO STAY PROCEEDINGS IN ANY COURT OF A
STATE, EXCEPT IN CASES WHERE SUCH INJUNCTION MAY BE AUTHORIZED BY ANY
LAW RELATING TO PROCEEDINGS IN BANKRUPTCY."  REV. STAT. SEC. 720. 

IN TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118, 133-134, IN
DISCUSSING THE STATUTORY EXCEPTIONS TO THE "ANTI-INJUNCTION" ACT WE
NOTED THAT, WHILE ONLY BANKRUPTCY WAS THE EXPLICIT EXCEPTION, THERE
WERE OTHERS.  (1) THE "REMOVAL ACTS QUALIFY PRO TANTO THE ACT OF
1793."  (2) THE ACT OF 1851 LIMITING SHIPOWNERS' LIABILITY "(BEING A
'SUBSEQUENT STATUTE' TO THE ACT OF 1793 . . . OPERATES AS AN IMPLIED
LEGISLATIVE AMENDMENT TO IT."  WE ALSO ADDED (3) THE INTERPLEADER ACT
OF 1926 AND (4) THE FRAZIER-LEMKE ACT, 47 STAT. 1473.  TOUCEY LIMITED A
LINE OF CASES DEALING WITH NONSTATUTORY EXCEPTIONS TO THE "ANTI
INJUNCTION" ACT.  SHORTLY THEREAFTER THE CURRENT LANGUAGE OF SEC. 2283
WAS WRITTEN INTO THE JUDICIAL CODE.  THE REVISER'S NOTE STATES:  "(THE
REVISED SECTION RESTORES THE BASIC LAW AS GENERALLY UNDERSTOOD AND
INTERPRETED PRIOR TO THE TOUCEY DECISION."  BOTH PRE-TOUCEY AND POST
TOUCEY DECISIONS RECOGNIZE IMPLIED LEGISLATIVE EXCEPTIONS TO THE "ANTI
INJUNCTION" ACT.  SEE PORTER V. DICKEN, 328 U.S. 252; LEITER MINERALS
V. UNITED STATES, 352 U.S. 220. 

/4/  WHAT IS NOW 28 U.S.C. 1343(3) WAS ADDED IN 1871, 17 STAT. 13,
AND THE FEDERAL-QUESTION JURISDICTION OF 28 U.S.C. 1331 WAS ADDED IN
1875.  18 STAT. 470. 

/5/  WE HAVE ALREADY HELD THAT SEC. 1983 REQUIRES NO EXHAUSTION OF
STATE REMEDIES.  MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668. 

/6/  IN ACCORD WITH THE VIEW ARE HONEY V. GOODMAN, 432 F.2D 333
(CA6), AND COOPER V. HUTCHINSON, 184 F.2D 119 (CA3).  OPPOSED ARE GOSS
V. ILLINOIS, 312 F.2D 257 (CA7), AND BAINES V. CITY OF DANVILLE, 337
F.2D 579 (CA4). 

AND SEE MARAIST, FEDERAL INJUNCTIVE RELIEF AGAINST STATE COURT
PROCEEDINGS:  THE SIGNIFICANCE OF DOMBROWSKI, 48 TEX.L.REV.  535, 591
ET SEQ. (1970). 

CLIFFORD K. THOMPSON, JR., DEPUTY ATTORNEY GENERAL OF CALIFORNIA,
ARGUED THE CAUSE FOR APPELLANT ON THE SECOND REARGUMENT.  ALBERT W.
HARRIS, JR., ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE FOR APPELLANT
ON THE ORIGINAL ARGUMENT AND ON THE FIRST REARGUMENT.  WITH THEM ON THE
BRIEFS WERE THOMAS C. LYNCH, ATTORNEY GENERAL, AND EVELLE J. YOUNGER,
PRO SE. 

A. L. WIRIN ARGUED THE CAUSE FOR APPELLEES ON THE REARGUMENTS.  WITH
HIM ON THE BRIEFS WERE FRED OKRAND AND FRANK S. PESTANA.  SAM ROSENWEIN
ARGUED THE CAUSE FOR APPELLEES ON THE ORIGINAL ARGUMENT.  WITH HIM ON
THE BRIEF WAS MR. PESTANA. 
..END :

















SAMUELS V. MACKELL, 401 U.S. 66 


       SAMUELS ET AL V. MACKELL, DISTRICT ATTORNEY OF QUEENS

           COUNTY, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK

        NO. 7.  ARGUED APRIL 1, 1969-- REARGUED APRIL 29 AND

           NOVEMBER 16, 1970-- DECIDED FEBRUARY 23, 1971  /1/ 


APPELLANTS, WHO HAD BEEN INDICTED UNDER NEW YORK'S CRIMINAL ANARCHY
LAW, SOUGHT DECLARATORY AS WELL AS INJUNCTIVE RELIEF AGAINST THEIR
PROSECUTIONS, ON THE GROUND THAT THE LAW IS UNCONSTITUTIONAL.  A THREE
JUDGE DISTRICT COURT UPHELD THE LAW AND DISMISSED THE COMPLAINTS. 
HELD: 

1.  SINCE THERE WAS NO SHOWING THAT APPELLANTS HAVE SUFFERED OR WILL
SUFFER GREAT AND IMMEDIATE IRREPARABLE INJURY BY VIRTUE OF THEIR BEING
PROSECUTED IN THE STATE COURTS, WHERE THEY CAN MAKE THEIR
CONSTITUTIONAL CONTENTIONS, THERE IS NO BASIS FOR FEDERAL INJUNCTIVE
RELIEF.  YOUNGER V. HARRIS, ANTE, P. 37.  P. 68-89. 

2.  THE SAME PRINCIPLES THAT GOVERN THE PROPRIETY OF FEDERAL
INJUNCTIONS OF STATE CRIMINAL PROCEEDINGS GOVERN THE ISSUANCE OF
FEDERAL DECLARATORY JUDGMENTS IN CONNECTION WITH SUCH PROCEEDINGS, AND
APPELLANTS HERE SHOULD HAVE BEEN DENIED DECLARATORY RELIEF WITHOUT
CONSIDERATION OF THE MERITS OF THEIR CONSTITUTIONAL CLAIMS.  PP. 69
74. 

288 F.SUPP.  348, AFFIRMED. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND HARLAN, STEWART, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J., FILED
A CONCURRING OPINION, POST, P. 74.  STEWART, J., FILED A CONCURRING
OPINION, IN WHICH HARLAN, J., JOINED, ANTE, P. 54.  BRENNAN, J., FILED
AN OPINION CONCURRING IN THE RESULT, IN WHICH WHITE AND MARSHALL, JJ.,
JOINED, POST, . 75. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS IN THESE TWO CASES WERE ALL INDICTED IN A NEW YORK
STATE COURT ON CHARGES OF CRIMINAL ANARCHY, IN VIOLATION OF SECS. 160,
161, 163, AND 580(1) OF THE NEW YORK PENAL LAW.  /1A/  THEY LATER FILED
THESE ACTIONS IN FEDERAL DISTRICT COURT, /2/  ALLEGING (1) THAT THE
ANARCHY STATUTE WAS VOID FOR VAGUENESS IN VIOLATION OF DUE PROCESS, AND
AN ABRIDGMENT OF FREE SPEECH, PRESS, AND ASSEMBLY, IN VIOLATION OF THE
FIRST AND FOURTEENTH AMENDMENTS; (2) THAT THE ANARCHY STATUTE HAD BEEN
PRE-EMPTED BY FEDERAL LAW; AND (3) THAT THE NEW YORK LAWS UNDER WHICH
THE GRAND JURY HAD BEEN DRAWN VIOLATED THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT BECAUSE THEY
DISQUALIFIED FROM JURY SERVICE ANY MEMBER OF THE COMMUNITY WHO DID NOT
OWN REAL OR PERSONAL PROPERTY OF THE VALUE OF AT LEAST $250, AND
BECAUSE THE LAWS FURNISHED NO DEFINITE STANDARDS FOR DETERMINING HOW
JURORS WERE TO BE SELECTED.  APPELLANTS CHARGED THAT TRIAL OF THESE
INDICTMENTS IN STATE COURTS WOULD HARASS THEM, AND CAUSE THEM TO SUFFER
IRREPARABLE DAMAGES, AND THEY THEREFORE PRAYED THAT THE STATE COURTS
SHOULD BE ENJOINED FROM FURTHER PROCEEDINGS.  IN THE ALTERNATIVE,
APPELLANTS ASKED THE DISTRICT COURT TO ENTER A DECLARATORY JUDGMENT TO
THE EFFECT THAT THE CHALLENGED STATE LAWS WERE UNCONSTITUTIONAL AND
VOID ON THE SAME GROUNDS.  THE THREE-JUDGE COURT, CONVENED PURSUANT TO
28 U.S.C. 2284, HELD THAT THE NEW YORK CRIMINAL ANARCHY LAW WAS
CONSTITUTIONAL AS IT HAD BEEN CONSTRUED BY THE NEW YORK COURTS AND HELD
THAT THE COMPLAINTS SHOULD THEREFORE BE DISMISSED.  288 F.SUPP.  348
(SDNY 1968).  /3/ 

IN NO. 2, YOUNGER V. HARRIS, ANTE, P. 37, WE TODAY DECIDED ON FACTS
VERY SIMILAR TO THE FACTS IN THESE CASES THAT A UNITED STATES DISTRICT
COURT COULD NOT ISSUE AN INJUNCTION TO STAY PROCEEDINGS PENDING IN A
STATE CRIMINAL COURT AT THE TIME THE FEDERAL SUIT WAS BEGUN.  THIS WAS
BECAUSE IT DID NOT APPEAR FROM THE RECORD THAT THE PLAINTIFFS WOULD
SUFFER IMMEDIATE IRREPARABLE INJURY IN ACCORD WITH THE RULE SET OUT IN
DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157 (1943), AND MANY OTHER
CASES.  SINCE IN THE PRESENT CASE THERE IS LIKEWISE NO SUFFICIENT
SHOWING IN THE RECORD THAT THE PLAINTIFFS HAVE SUFFERED OR WOULD SUFFER
IRREPARABLE INJURY, OUR DECISION IN THE YOUNGER CASE IS DISPOSITIVE OF
THE PRAYERS FOR INJUNCTIONS HERE.  THE PLAINTIFFS IN THE PRESENT CASES
ALSO INCLUDED IN THEIR COMPLAINTS AN ALTERNATIVE PRAYER FOR A
DECLARATORY JUDGMENT, BUT FOR THE REASONS INDICATED BELOW, WE HOLD THAT
THIS ALTERNATIVE PRAYER DOES NOT REQUIRE A DIFFERENT RESULT, AND THAT
UNDER THE CIRCUMSTANCES OF THESE CASES, THE PLAINTIFFS WERE NOT
ENTITLED TO FEDERAL RELIEF, DECLARATORY OR INJUNCTIVE.  ACCORDINGLY WE
AFFIRM THE JUDGMENT OF THE DISTRICT COURT, ALTHOUGH NOT FOR THE REASONS
GIVEN IN THAT COURT'S OPINION. 

IN OUR OPINION IN THE YOUNGER CASE, WE SET OUT IN DETAIL THE
HISTORICAL AND PRACTICAL BASIS FOR THE SETTLED DOCTRINE OF EQUITY THAT
A FEDERAL COURT SHOULD NOT ENJOIN A STATE CRIMINAL PROSECUTION BEGUN
PRIOR TO THE INSTITUTION OF THE FEDERAL SUIT EXCEPT IN VERY UNUSUAL
SITUATIONS, WHERE NECESSARY TO PREVENT IMMEDIATE IRREPARABLE INJURY. 
THE QUESTION PRESENTED HERE IS WHETHER UNDER ORDINARY CIRCUMSTANCES THE
SAME CONSIDERATIONS THAT REQUIRE THE WITHHOLDING OF INJUNCTIVE RELIEF
WILL MAKE DECLARATORY RELIEF EQUALLY INAPPROPRIATE.  THE QUESTION IS
NOT, HOWEVER, A NOVEL ONE.  IT WAS PRESENTED AND FULLY CONSIDERED BY
THIS COURT IN GREAT LAKES CO. V. HUFFMAN, 319 U.S. 293 (1943).  WE FIND
THE REASONING OF THIS COURT IN THE GREAT LAKES CASE FULLY PERSUASIVE
AND THINK THAT ITS HOLDING IS CONTROLLING HERE. 

IN THE GREAT LAKES CASE SEVERAL EMPLOYERS HAD BROUGHT SUIT AGAINST A
LOUISIANA STATE OFFICIAL, SEEKING A DECLARATORY JUDGMENT THAT THE
STATE'S UNEMPLOYMENT COMPENSATION LAW, WHICH REQUIRED THE EMPLOYERS TO
MAKE CONTRIBUTIONS TO A STATE COMPENSATION FUND, WAS UNCONSTITUTIONAL. 
THE LOWER COURTS HAD DISMISSED THE COMPLAINT ON THE GROUND THAT THE
CHALLENGED LAW WAS CONSTITUTIONAL.  THIS COURT AFFIRMED THE DISMISSAL,
"BUT SOLELY ON THE GROUND THAT, IN THE APPROPRIATE EXERCISE OF THE
COURT'S DISCRETION, RELIEF BY WAY OF A DECLARATORY JUDGMENT SHOULD HAVE
BEEN DENIED WITHOUT CONSIDERATION OF THE MERITS."  ID., AT 301-302. 
THE COURT, IN A UNANIMOUS OPINION WRITTEN BY MR. CHIEF JUSTICE STONE,
NOTED FIRST THAT UNDER LONG-SETTLED PRINCIPLES OF EQUITY, THE FEDERAL
COURTS COULD NOT HAVE ENJOINED THE LOUISIANA OFFICIAL FROM COLLECTING
THE STATE TAX AT ISSUE THERE UNLESS, AS WAS NOT TURE IN THAT CASE,
THERE WAS NO ADEQUATE REMEDY AVAILABLE IN THE COURTS OF THE STATE. 
THIS JUDICIAL DOCTRINE HAD BEEN APPROVED BY CONGRESS IN THE THEN-RECENT
TAX INJUNCTION ACT OF 1937, 50 STAT. 738, NOW 28 U.S.C. 1341.  ALTHOUGH
THE DECLARATORY JUDGMENT SOUGHT BY THE PLAINTIFFS WAS A STATUTORY
REMEDY RATHER THAN A TRADITIONAL FORM OF EQUITABLE RELIEF, THE COURT
MADE CLEAR THAT A SUIT FOR DECLARATORY JUDGMENT WAS NEVERTHELESS
"ESSENTIALLY AN EQUITABLE CAUSE OF ACTION,"  AND WAS "ANALOGOUS TO THE
EQUITY JURISDICTION IN SUITS QUIA TIMET OR FOR A DECREE QUIETING
TITLE."  319 U.S., AT 300.  IN ADDITION, THE LEGISLATIVE HISTORY OF THE
FEDERAL DECLARATORY JUDGMENT ACT OF 1934, 48 STAT. 955, AS AMENDED, 28
U.S.C. 2201, SHOWED THAT CONGRESS HAD EXPLICITLY CONTEMPLATED THAT THE
COURTS WOULD DECIDE TO GRANT OR WITHHOLD DECLARATORY RELIEF ON THE
BASIS OF TRADITIONAL EQUITABLE PRINCIPLES.  ACCORDINGLY, THE COURT HELD
THAT IN AN ACTION FOR A DECLARATORY JUDGMENT, "THE DISTRICT COURT WAS
AS FREE AS IN ANY OTHER SUIT IN EQUITY TO GRANT OR WITHHOLD THE RELIEF
PRAYED, UPON EQUITABLE GROUNDS."  319 U.S.,AT 300.  THE COURT'S
APPLICATION OF THESE PRINCIPLES TO THE SPECIFIC PROBLEM OF DECLARATORY
JUDGMENTS RELATING TO THE COLLECTION OF STATE TAXES IS WORTH QUOTING IN
FULL, BECAUSE IT BEARS SO DIRECTLY ON THE PROBLEM BEFORE US IN THE
PRESENT CASE: 

"THE EARLIER REFUSAL OF FEDERAL COURTS OF EQUITY TO INTERFERE WITH
THE COLLECTION OF STATE TAXES UNLESS THE THREATENED INJURY TO THE
TAXPAYER IS ONE FOR WHICH THE STATE COURTS AFFORD NO ADEQUATE REMEDY,
AND THE CONFIRMATION OF THAT PRACTICE BY CONGRESS, HAVE AN IMPORTANT
BEARING UPON THE APPROPRIATE USE OF THE DECLARATORY JUDGMENT PROCEDURE
BY THE FEDERAL COURTS AS A MEANS OF ADJUDICATING THE VALIDITY OF STATE
TAXES. 

     "IT IS TRUE THAT THE ACT OF CONGRESS SPEAKS ONLY OF SUITS 'TO

ENJOIN, SUSPEND, OR RESTRAIN THE ASSESSMENT, LEVY, OR COLLECTION

  OF ANY TAX' IMPOSED BY STATE LAW, AND THAT THE DECLARATORY

  JUDGMENT PROCEDURE MAY BE, AND IN THIS CASE WAS, USED ONLY TO

  PROCURE A DETERMINATION OF THE RIGHTS OF THE PARTIES, WITHOUT AN

  INJUNCTION OR OTHER COERCIVE RELIEF.  IT IS ALSO TRUE THAT THAT

  PROCEDURE MAY IN EVERY PRACTICAL SENSE OPERATE TO SUSPEND

  COLLECTION OF THE STATE TAXES UNTIL THE LITIGATION IS ENDED.  BUT

  WE FIND IT UNNECESSARY TO INQUIRE WHETHER THE WORDS OF THE

  STATUTE MAY BE SO CONSTRUED AS TO PROHIBIT A DECLARATION BY

  FEDERAL COURTS CONCERNING THE INVALIDITY OF A STATE TAX.  FOR WE

ARE OF THE OPINION THAT THOSE CONSIDERATIONS WHICH HAVE LED

  FEDERAL COURTS OF EQUITY TO REFUSE TO ENJOIN THE COLLECTION OF

  STATE TAXES, SAVE IN EXCEPTIONAL CASES, REQUIRE A LIKE RESTRAINT

  IN THE USE OF THE DECLARATORY JUDGMENT PROCEDURE."  319 U.S., AT

  299. 

THE CONTINUING VALIDITY OF THE COURT'S HOLDING IN THE GREAT LAKES
CASE HAS BEEN REPEATEDLY RECOGNIZED AND REAFFIRMED BY THIS COURT.  SEE,
E.G., MACAULEY V. WATERMAN S.S. CORP., 327 U.S. 540, 545 N. 4 (1946);
OTT V. MISSISSIPPI BARGE LINE, 336 U.S. 169, 175 (1949); PUBLIC SERV.
COMM'N V. WYCOFF CO., 344 U.S. 237, 253 (1952) (DOUGLAS, J.,
DISSENTING); ALLEGHENY COUNTY V. MASHUDA CO., 360 U.S. 185, 189 (1959);
ENOCHS V. WILLIAMS PACKING CO., 370 U.S. 1, 8 (1962).  ALTHOUGH WE HAVE
FOUND NO CASE IN THIS COURT DEALING WITH THE APPLICATION OF THIS
DOCTRINE TO CASES IN WHICH THE RELIEF SOUGHT AFFECTS STATE CRIMINAL
PROSECUTIONS RATHER THAN STATE TAX COLLECTIONS, WE CAN PERCEIVE NO
RELEVANT DIFFERENCE BETWEEN THE TWO SITUATIONS WITH RESPECT TO THE
LIMITED QUESTION WHETHER, IN CASES WHERE THE CRIMINAL PROCEEDING WAS
BEGUN PRIOR TO THE FEDERAL CIVIL SUIT, THE PROPRIETY OF DECLARATORY AND
INJUNCTIVE RELIEF SHOULD BE JUDGED BY ESSENTIALLY THE SAME STANDARDS. 
IN BOTH SITUATIONS DEEPLY ROOTED AND LONG-SETTLED PRINCIPLES OF EQUITY
HAVE NARROWLY RESTRICTED THE SCOPE FOR FEDERAL INTERVENTION, AND
ORDINARILY A DECLARATORY JUDGMENT WILL RESULT IN PRECISELY THE SAME
INTERFERENCE WITH AND DISRUPTION OF STATE PROCEEDINGS THAT THE LONG
STANDING POLICY LIMITING INJUNCTIONS WAS DESIGNED TO AVOID.  THIS IS
TRUE FOR AT LEAST TWO REASONS.  IN THE FIRST PLACE, THE DECLARATORY
JUDGMENT ACT PROVIDES THAT AFTER A DECLARATORY JUDGMENT IS ISSUED THE
DISTRICT COURT MAY ENFORCE IT BY GRANTING "(FURTHER NECESSARY OR PROPER
RELIEF," 28 U.S.C. 2202, AND THEREFORE A DECLARATORY JUDGMENT ISSUED
WHILE STATE PROCEEDINGS ARE PENDING MIGHT SERVE AS THE BASIS FOR A
SUBSEQUENT INJUNCTION AGAINST THOSE PROCEEDINGS TO "PROTECT OR
EFFECTUATE" THE DECLARATORY JUDGMENT, 28 U.S.C. 2283, AND THUS RESULT
IN A CLEARLY IMPROPER INTERFERENCE WITH THE STATE PROCEEDINGS. 
SECONDLY, EVEN IF THE DECLARATORY JUDGMENT IS NOT USED AS A BASIS FOR
ACTUALLY ISSUING AN INJUNCTION, THE DECLARATORY RELIEF ALONE HAS
VIRTUALLY THE SAME PRACTICAL IMPACT AS A FORMAL INJUNCTION WOULD.  AS
WE SAID IN THE WYCOFF CASE, 344 U.S., AT 247: 

    "IS THE DECLARATION CONTEMPLATED HERE TO BE RES JUDICATA, SO

  THAT THE (STATE COURT) CANNOT HEAR EVIDENCE AND DECIDE ANY MATTER

  FOR ITSELF?  IF SO, THE FEDERAL COURT HAS VIRTUALLY LIFTED THE

  CASE OUT OF THE STATE (COURT) BEFORE IT COULD BE HEARD.  IF NOT,

  THE FEDERAL JUDGMENT SERVES NO USEFUL PURPOSE AS A FINAL

  DETERMINATION OF RIGHTS." 

SEE ALSO H. J. HEINZ CO. V. WOENS, 189 F.2D 505, 508-509 (CA9 1951). 
WE THEREFORE HOLD THAT, IN CASES WHERE THE STATE CRIMINAL PROSECUTION
WAS BEGUN PRIOR TO THE FEDERAL SUIT, THE SAME EQUITABLE PRINCIPLES
RELEVANT TO THE PROPRIETY OF AN INJUNCTION MUST BE TAKEN INTO
CONSIDERATION BY FEDERAL DISTRICT COURTS IN DETERMINING WHETHER TO
ISSUE A DECLARATORY JUDGMENT, AND THAT WHERE AN INJUNCTION WOULD BE
IMPERMISSIBLE UNDER THESE PRINCIPLES, DECLARATORY RELIEF SHOULD
ORDINARILY BE DENIED AS WELL. 

WE DO NOT MEAN TO SUGGEST THAT A DECLARATORY JUDGMENT SHOULD NEVER
BE ISSUED IN CASES OF THIS TYPE IF IT HAS BEEN CONCLUDED THAT
INJUNCTIVE RELIEF WOULD BE IMPROPER.  THERE MAY BE UNUSUAL
CIRCUMSTANCES IN WHICH AN INJUNCTION MIGHT BE WITHHELD BECAUSE, DESPITE
A PLAINTIFF'S STRONG CLAIM FOR RELIEF UNDER THE ESTABLISHED STANDARDS,
THE INJUNCTIVE REMEDY SEEMED PARTICULARLY INTRUSIVE OR OFFENSIVE; IN
SUCH A SITUATION, A DECLARATORY JUDGMENT MIGHT BE APPROPRIATE AND MIGHT
NOT BE CONTRARY TO THE BASIC EQUITABLE DOCTRINES GOVERNING THE
AVAILABILITY OF RELIEF.  ORDINARILY, HOWEVER, THE PRACTICAL EFFECT OF
THE TWO FORMS OF RELIEF WILL BE VIRTUALLY IDENTICAL, AND THE BASIC
POLICY AGAINST FEDERAL INTERFERENCE WITH PENDING STATE CRIMINAL
PROSECUTIONS WILL BE FRUSTRATED AS MUCH BY A DECLARATORY JUDGMENT AS IT
WOULD BE BY AN INJUNCTION. 

FOR THE REASONS WE HAVE STATED, WE HOLD THAT THE COURT BELOW ERRED
IN PROCEEDING TO A CONSIDERATION OF THE MERITS OF THE NEW YORK CRIMINAL
ANARCHY LAW.  HERE, AS IN THE GREAT LAKES CASE, THE JUDGMENT DISMISSING
THE COMPLAINT WAS BASED ON AN ADJUDICATION THAT THE STATUTES CHALLENGED
HERE ARE CONSTITUTIONAL AND IS THUS IN EFFECT A DECLARATORY JUDGMENT. 
WE AFFIRM THE JUDGMENT DISMISSING THE COMPLAINT, BUT SOLELY ON THE
GROUND THAT, IN THE APPROPRIATE EXERCISE OF THE COURT'S DISCRETION,
RELIEF BY WAY OF DECLARATORY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT
CONSIDERATION OF THE MERITS.  WE, OF COURSE, EXPRESS NO VIEWS ON THE
PROPRIETY OF DECLARATORY RELIEF WHEN NO STATE PROCEEDING IS PENDING AT
THE TIME THE FEDERAL SUIT IS BEGUN. 

              AFFIRMED. 

/1/  TOGETHER WITH NO. 9, FERNANDEZ V. MACKELL, DISTRICT ATTORNEY OF
QUEENS COUNTY, ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

/1A/  THESE PROVISIONS WERE REPEALED EFFECTIVE SEPTEMBER 1, 1967,
AND A NEW CRIMINAL ANARCHY STATUTE, IN SOMEWHAT DIFFERENT FORM, TOOK
EFFECT ON THE SAME DATE. 

/2/  THE COMPLAINT IN NO. 7 WAS FILED IN THE SOUTHERN DISTRICT OF
NEW YORK.  THE COMPLAINT IN NO. 9 WAS ORIGINALLY FILED IN THE EASTERN
DISTRICT, BUT WAS LATER TRANSFERRED TO THE SOUTHERN DISTRICT BY
CONSENT. 

/3/  THE COURT ALSO SAID THAT EVEN IF ITS VIEW ON THE MERITS WAS
WRONG, RELIEF SHOULD BE WITHHELD BECAUSE THE STATUTES BEING CHALLENGED
WERE NO LONGER IN EFFECT.  WITH RESPECT TO THE PLAINTIFFS' CHALLENGE TO
THE SELECTION OF THE GRAND JURY, THE DISTRICT COURT HELD, IN RELIANCE
ON DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157 (1943), THAT THIS CLAIM
COULD BE EFFECTIVELY PRESENTED TO THE NEW YORK COURTS AND THEREFORE DID
NOT CALL FOR FEDERAL INTERVENTION AT THIS STATE. 

(FOR CONCURRING OPINION OF MR. JUSTICE STEWART, SEE ANTE, P. 54.) 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE SAME NEW YORK STATUTES ON ANARCHY THAT WERE SUSTAINED IN GITLOW
V. NEW YORK, 268 U.S. 652, ARE INVOLVED IN THESE CASES.  IT WAS IN THAT
CASE THAT MR. JUSTICE HOLMES, WITH WHOM MR. JUSTICE BRANDEIS CONCURRED,
SAID IN DISSENT:     "IT IS SAID THAT THIS MANIFESTO WAS MORE THAN A
THEORY, THAT IT WAS AN INCITEMENT.  EVERY IDEA IS AN INCITEMENT.  IT
OFFERS ITSELF FOR BELIEF AND IF BELIEVED IT IS ACTED ON UNLESS SOME
OTHER BELIEF OUTWEIGHS IT OR SOME FAILURE OF ENERGY STIFLES THE
MOVEMENT AT ITS BIRTH.  THE ONLY DIFFERENCE BETWEEN THE EXPRESSION OF
AN OPINION AND AN INCITEMENT IN THE NARROWER SENSE IS THE SPEAKER'S
ENTHUSIASM FOR THE RESULT.  ELOQUENCE MAY SET FIRE TO REASON.  BUT
WHATEVER MAY BE THOUGHT OF THE REDUNDANT DISCOURSE BEFORE US IT HAD NO
CHANCE OF STARTING A PRESENT CONFLAGRATION.  IF IN THE LONG RUN THE
BELIEFS EXPRESSED IN PROLETARIAN DICTATORSHIP ARE DESTINED TO BE
ACCEPTED BY THE DOMINANT FORCES OF THE COMMUNITY, THE ONLY MEANING OF
FREE SPEECH IS THAT THEY SHOULD BE GIVEN THEIR CHANCE AND HAVE THEIR
WAY." 

IN GITLOW THE ONLY OVERT ACTS WERE ADVOCACY OF OVERTHROW AND
PUBLICATION OF THE WRITINGS THAT CONTAINED THE ADVOCACY.  ID., AT 655. 
GITLOW AND ITS PROGENY, INCLUDING WHITNEY V. CALIFORNIA, 274 U.S. 357,
WENT INTO THE DISCARD WITH OUR DECISION IN BRANDENBURG V. OHIO, 395
U.S. 444.  IN THAT CASE THE INDICTMENT CHARGED ADVOCATING TERRORISM "BY
WORK OF MOUTH" AS A METHOD OF POLITICAL REFORM AND ASSEMBLY FOR THE
PURPOSE OF SUCH ADVOCACY.  WE HELD THAT NEITHER ADVOCACY NOR ASSEMBLY
IN ORDER TO ADVOCATE POLITICAL ACTION MAY BE MADE PUNISHABLE. 

BRANDENBURG, HOWEVER, IS OF NO HELP TO THESE APPELLANTS.  FOR WHILE
SOME OF THE COUNTS EMBRACE ONLY ADVOCACY OR ACTS WHICH FALL WITHIN ITS
PENUMBRA, STILL OTHERS ARE IN THE FIELD OF ACTIVITIES FAR REMOVED FROM
THE PROTECTION OF THE FIRST AMENDMENT.  THERE IS A QUESTION CONCERNING
SOME OF THE OVERT ACTS-- WHETHER AS I ASKED IN MY DISSENT IN EPTON V.
NEW YORK, 390 U.S. 29, 30, A CONSTITUTIONALLY PROTECTED RIGHT SUCH AS
SPEECH OR ASSEMBLY MAY BE USED AS AN OVERT ACT IN FURTHERANCE OF A
CONSPIRACY.  BUT OTHER OVERT ACTS RELATE TO THE ACQUISITION OF WEAPONS,
GUNPOWDER, AND THE LIKE, AND THE STORING OF GASOLINE TO START FIRES. 
PERSUASION BY SUCH MEANS PLAINLY HAS NO FIRST AMENDMENT PROTECTION. 

IT THEREFORE CANNOT BE SAID THAT THE CASES AGAINST SAMUELS AND
FERNANDEZ ARE PALPABLY UNCONSTITUTIONAL.  IT IS FOR THE STATE COURTS BY
SIFTING OUT THE CHAFF FROM THE CHARGES THROUGH MOTIONS TO STRIKE,
INSTRUCTIONS TO THE JURY, AND OTHER PROCEDURAL DEVICES TO PRESERVE SUCH
FIRST AMENDMENT RIGHTS AS MAY BE INVOLVED HERE.  CERTAINLY VIOLENCE HAS
NO SANCTUARY IN THE FIRST AMENDMENT, AND THE USE OF WEAPONS, GUNPOWDER,
AND GASOLINE MAY NOT CONSTITUTIONALLY MASQUERADE UNDER THE GUISE OF
"ADVOCACY." 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE WHITE AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN THE RESULT. 

I AGREE THAT THE JUDGMENT OF THE DISTRICT COURT SHOULD BE AFFIRMED. 
ALL THE APPELLANTS HAD BEEN INDICTED FOR VIOLATION OF THE NEW YORK
CRIMINAL ANARCHY LAW BEFORE THEIR SUIT IN FEDERAL COURT WAS FILED. 
THEY HAVE NOT ALLEGED FACTS AMOUNTING TO BAD-FAITH HARASSMENT. 
THEREFORE NEITHER A DECLARATORY JUDGMENT NOR AN INJUNCTION WOULD BE
PROPER.  PEREZ V. LEDESMA, POST, P. 93 (SEPARATE OPINION OF BRENNAN,
J.). 

VICTOR RABINOWITZ ARGUED THE CAUSE FOR APPELLANTS IN NO. 7 ON THE
ORIGINAL ARGUMENT AND ON THE REARGUMENTS.  WITH HIM ON THE BRIEFS WERE
LEONARD B. BOUDIN, MICHAEL STANDARD, AND DORIAN BOWMAN.  ELEANOR
JACKSON PIER ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANT IN NO. 9
ON THE ORIGINAL ARGUMENT AND ON THE REARGUMENTS. 

FREDERICK J. LUDWIG ARGUED THE CAUSE FOR APPELLEE MACKELL IN BOTH
CASES ON THE ORIGINAL ARGUMENT AND ON THE REARGUMENTS.  WITH HIM ON THE
BRIEFS WAS THOMAS J. MACKELL, PRO SE.  MARIA L. MARCUS, ASSISTANT
ATTORNEY GENERAL, ARGUED THE CAUSE FOR APPELLEE ATTORNEY GENERAL OF NEW
YORK IN BOTH CASES ON THE ORIGINAL ARGUMENT AND ON THE REARGUMENTS. 
WITH HER ON THE BRIEFS WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, RO
SE, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND HILLEL
HOFFMAN, ASSISTANT ATTORNEY GENERAL. 
..END :







BOYLE V. LANDRY, 401 U.S. 77 


       BOYLE, JUDGE, ET AL. V. LANDRY ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

   NORTHERN DISTRICT OF ILLINOIS

        NO. 4.  ARGUED MARCH 24, 1969-- REARGUED APRIL 29 AND

           NOVEMBER 16, 1970-- DECIDED FEBRUARY 23, 1971 


APPELLEES BROUGHT THIS ACTION FOR INJUNCTIVE AND DECLARATORY RELIEF
AGAINST ENFORCEMENT OF VARIOUS ILLINOIS STATUTES UNDER SOME OF WHICH
CERTAIN APPELLEES HAD BEEN ARRESTED AND ALL OF WHICH THEY CLAIMED WERE
BEING USED TO INTIMIDATE THEM IN THE EXERCISE OF THEIR FIRST AMENDMENT
RIGHTS.  A THREE-JUDGE DISTRICT COURT DECLARED INVALID FOR OVERBREADTH
AND ENJOINED ENFORCEMENT OF A STATUTORY PROVISION (UNDER WHICH NO
APPELLEE HAD BEEN ARRESTED OR CHARGED) THAT PROHIBITED INTIMIDATING A
PERSON BY THREATS TO "(COMMIT ANY CRIMINAL OFFENSE."  HELD:  SINCE NO
APPELLEE SUFFERED, OR WAS THREATENED WITH, GREAT AND IMMEDIATE
IRREPARABLE INJURY AND THE FUTURE APPLICATION OF THE STATUTE TO ANY
APPELLEE WAS MERELY SPECULATIVE, THE DISTRICT COURT WAS NOT WARRANTED
IN INTERFERING WITH STATE LAW ENFORCEMENT BY THE ISSUANCE OF AN
INJUNCTION OR DECLARATORY JUDGMENT.  YOUNGER V. HARRIS, ANTE, P. 37;
SAMUELS V. MACKELL, ANTE, P. 66.  PP. 80-81. 

280 F.SUPP.  938, REVERSED AND REMANDED. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND HARLAN, STEWART, AND BLACKMUN, JJ., JOINED.  BRENNAN, WHITE,
AND MARSHALL, JJ., CONCURRED IN THE RESULT.  DOUGLAS, J., FILED A
DISSENTING OPINION, ANTE, P. 58. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT IN FEDERAL COURT BY SEVEN GROUPS OF NEGRO
RESIDENTS OF CHICAGO, ILLINOIS, SEEKING A DECLARATORY JUDGMENT AND AN
INJUNCTION AGAINST THE ENFORCEMENT OF A NUMBER OF ILLINOIS STATUTES AND
CHICAGO ORDINANCES ON THE GROUNDS THAT THEY VIOLATED VARIOUS PROVISIONS
OF THE FEDERAL CONSTITUTION.  THE COMPLAINT NAMED AS DEFENDANTS AND
SOUGHT RELIEF AGAINST A NUMBER OF OFFICIALS OF COOK COUNTY AND THE CITY
OF CHICAGO: THE MAYOR, THE CHIEF JUDGE, AND TWO MAGISTRATES OF THE
CIRCUIT COURT, THE STATE'S ATTORNEY FOR THE COUNTY, THE SHERIFF, THE
SUPERINTENDENT OF POLICE, THE CITY'S CORPORATION COUNSEL AND HIS
ASSISTANT, AND THREE CITY POLICE OFFICERS.  THEIR COMPLAINT CHALLENGED
AS INVALID THE ILLINOIS STATUTES PROHIBITING MOB ACTION, /1/  RESISTING
ARREST, /2/  AGGRAVATED ASSAULT, /3/  AGRAVATED BATTERY, /4/  AND
INTIMIDATION.  /5/  THEY ALLEGED THAT SOME OF THE PLAINTIFFS HAD BEEN
ARRESTED UNDER SOME OF THESE STATUTES AND THAT THOSE PROSECUTIONS WERE
CURRENTLY PENDING IN ILLINOIS STATE COURTS, AND THAT NEGROES WERE BEING
INTIMIDATED IN THE EXERCISE OF THEIR FIRST AMENDMENT RIGHTS (1) THROUGH
THE WHOLESALE USE OF ALL THE STATUTES ALLEGED TO BE UNCONSTITUTIONAL TO
PROSECUTE MEMBERS OF THE NEGRO COMMUNITY AND (2) THROUGH THE USE OF
ARRESTS WITHOUT PROBABLE CAUSE, COUPLED WITH THE SETTING OF EXORBITANT
BAIL.  THE COMPLAINT CONTENDED THAT THE DEFENDANTS HAD THREATENED TO
ENFORCE ALL OF THE NAMED STATUTES FOR THE SOLE PURPOSE OF HARASSING AND
INTIMIDATING THE PLAINTIFFS.  THEY REQUESTED THE CONVENING OF A THREE
JUDGE FEDERAL COURT UNDER 28 U.S.C. 2281 AND 2284, A DECLARATION THAT
THE CHALLENGED STATUTES WERE UNCONSTITUTIONAL, AND TEMPORARY AND
PERMANENT INJUNCTIONS PROHIBITING THE PENDING AND ANY POSSIBLE FUTURE
PROSECUTIONS UNDER THE STATUTES IN QUESTION. 

THE DEFENDANTS ANSWERED BY OPPOSING THE CONVENING OF A THREE-JUDGE
COURT AND THE ISSUANCE OF A TEMPORARY INJUNCTION, AND MOVED TO DISMISS
THE COMPLAINT ON THE GROUNDS, AMONG OTHERS, THAT (1) AS TO THOSE
PLAINTIFFS AGAINST WHOM PROSECUTIONS WERE THEN PENDING, THERE WAS AN
ADEQUATE REMEDY AT LAW IN THAT THEY WOULD BE ABLE TO PRESENT THEIR
CONSTITUTIONAL CHALLENGES TO THE STATUTES INVOLVED IN THE PENDING
CRIMINAL PROCEEDINGS, AND THAT AS TO SUCH PLAINTIFFS THE COURT WAS
BARRED BY 28 U.S.C. 2283 FROM ISSUING AN INJUNCTION AGAINST STATE COURT
PROCEEDINGS, /6/  AND THAT (2) AS TO THOSE PLAINTIFFS WITHOUT MATTERS
PENDING IN THE STATE COURTS, THERE WERE NO FACTS ALLEGED IN THE
COMPLAINT SHOWING THAT ANY OF THOSE PLAINTIFFS WERE THREATENED WITH
PROSECUTION UNDER ANY OF THE CHALLENGED STATUTES, OR THAT THEY WOULD
SUFFER ANY IRREPARABLE INJURY IF THEY WERE REQUIRED TO DEFEND ANY
PROSECUTION THAT MIGHT BE BROUGHT AGAINST THEM IN STATE COURT. 

THE SINGLE FEDERAL DISTRICT JUDGE DENIED THE DEFENDANTS' MOTION TO
DISMISS AND CONVENED THE THREE-JUDGE COURT.  /7/  THE THREE-JUDGE COURT
UPHELD ALL OF THE CHALLENGED STATUTES EXCEPT FOR ONE SUBSECTION OF THE
MOBACTION STATUTE WHICH PROHIBITED "(THE ASSEMBLY OF 2 OR MORE PERSONS
TO DO AN UNLAWFUL ACT . . . ,"  /8/  AND ONE SUBSECTION OF THE
INTIMIDATION STATUTE WHICH PROHIBITED INTIMIDATING A PERSON BY THREATS
TO "(COMMIT ANY CRIMINAL OFFENSE . . . "  /9/  THESE LAST TWO
SUBSECTIONS WERE DECLARED INVALID ON THE GROUNDS THAT THEY WERE OVERLY
BROAD AND MIGHT SWEEP WITHIN THEIR SCOPE CONDUCT THAT COULD NOT
CONSTITUTIONALLY BE MADE CRIMINAL.  THE COURT DECREED THAT THE
DEFENDANTS-- CITY AND COUNTY OFFICIALS-- "BE AND THEY ARE HEREBY
PERPETUALLY ENJOINED AND RESTRAINED FROM THE ENFORCEMENT OF OR THE
PROSECUTION UNDER" THE TWO STATUTORY SUBSECTIONS IT DECLARED
UNCONSTITUTIONAL.  THE DEFENDANT OFFICIALS DID NOT APPEAL THE THREE
JUDGE COURT'S DECLARATION AND INJUNCTION INVALIDATING THE CHALLENGED
SUBSECTION OF THE MOB-ACTION STATUTE AND THAT HOLDING IS THEREFORE NOT
BEFORE US.  WE HAVE BEFORE US ONLY THE COURT'S DECLARATION OF THE
UNCONSTITUTIONALITY AND INJUNCTION AGAINST THE ENFORCEMENT OF ONE
SUBSECTION OF THE INTIMIDATION STATUTE. 

IT IS OBVIOUS THAT THE ALLEGATIONS OF THE COMPLAINT IN THIS CASE
FALL FAR SHORT OF SHOWING ANY IRREPARABLE INJURY FROM THREATS OR ACTUAL
PROSECUTIONS UNDER THE INTIMIDATION STATUTE OR FROM ANY OTHER CONDUCT
BY STATE OR CITY OFFICIALS.  NOT A SINGLE ONE OF THE CITIZENS WHO
BROUGHT THIS ACTION HAD EVER BEEN PROSECUTED, CHARGED, OR EVEN ARRESTED
UNDER THE PARTICULAR INTIMIDATION STATUTE WHICH THE COURT BELOW HELD
UNCONSTITUTIONAL.  ALL THE CHARGES OF THE COMPLAINT DEAL BROADLY AND
GENERALLY WITH ALL THE STATE STATUTES AND CITY ORDINANCES THAT THE
APPELLEES ORIGINALLY CHALLENGED.  IN FACT, THE COMPLAINT CONTAINS NO
MENTION OF ANY SPECIFIC THREAT BY ANY OFFICER OR OFFICIAL OF CHICAGO,
COOK COUNTY, OR THE STATE OF ILLINOIS TO ARREST OR PROSECUTE ANY ONE OR
MORE OF THE PLAINTIFFS UNDER THAT STATUTE EITHER ONE TIME OR MANY
TIMES.  RATHER, IT APPEARS FROM THE ALLEGATIONS THAT THOSE WHO
ORIGINALLY BROUGHT THIS SUIT MADE A SEARCH OF STATE STATUTES AND CITY
ORDINANCES WITH A VIEW TO PICKING OUT CERTAIN ONES THAT THEY THOUGHT
MIGHT POSSIBLY BE USED BY THE AUTHORITIES AS DEVICES FOR BAD-FAITH
PROSECUTIONS AGAINST THEM.  THERE IS NOTHING CONTAINED IN THE
ALLEGATIONS OF THE COMPLAINT FROM WHICH ONE COULD INFER THAT ANY ONE OR
MORE OF THE CITIZENS WHO BROUGHT THIS SUIT IS IN ANY JEOPARDY OF
SUFFERING IRREPARABLE INJURY IF THE STATE IS LEFT FREE TO PROSECUTE
UNDER THE INTIMIDATION STATUTE IN THE NORMAL MANNER.  AS OUR HOLDINGS
TODAY IN YOUNGER V. HARRIS, ANTE, P. 37, AND SAMUELS V. MACKELL, ANTE,
P. 66, SHOW, THE NORMAL COURSE OF STATE CRIMINAL PROSECUTIONS CANNOT BE
DISRUPTED OR BLOCKED ON THE BASIS OF CHARGES WHICH IN THE LAST ANALYSIS
AMOUNT TO NOTHING MORE THAN SPECULATION ABOUT THE FUTURE.  THE POLICY
OF A CENTURY AND A HALF AGAINST INTERFERENCE BY THE FEDERAL COURTS WITH
STATE LAW ENFORCEMENT IS NOT TO BE SET ASIDE ON SUCH FLIMSY ALLEGATIONS
AS THOSE RELIED UPON HERE. 

FOR THE REASONS SET OUT ABOVE AND FOR THOSE SET OUT AT GREATER
LENGTH TODAY IN YOUNGER AND SAMUELS, WE REVERSE. 

              REVERSED AND REMANDED. 

/1/  ILL. REV. STAT., C. 38, SEC. 25-1 (1967). 

/2/  ILL. REV. STAT., C. 38, SEC. 31-1. 

/3/  ILL. REV. STAT., C. 38, SEC. 12-2. 

/4/  ILL. REV. STAT., C. 38, SEC. 12-4. 

/5/  ILL. REV. STAT., C. 38, SEC. 12-6. 

/6/  28 U.S.C. 2283 PROVIDES THAT: 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

/7/  THE DISTRICT JUDGE FOUND THAT THE CHALLENGES TO VARIOUS CITY
ORDINANCES WERE NOT APPROPRIATE FOR DETERMINATION BY A THREE-JUDGE
COURT AND THESE CLAIMS WERE NOT CERTIFIED TO THE THREE-JUDGE COURT.  IN
ADDITION, THE PLAINTIFFS ABANDONED THEIR CHALLENGE TO THE
CONSTITUTIONALITY OF THE ILLINOIS AGGRAVATED ASSAULT AND AGGRAVATED
BATTERY STATUTES. 

/8/  ILL. REV. STAT., C. 38, SEC. 25-1, PROVIDES THAT: 

"(A) MOB ACTION CONSISTS OF ANY OF THE FOLLOWING:

        .          .     .          . 

"(2) THE ASSEMBLY OF 2 OR MORE PERSONS TO DO AN UNLAWFUL ACT . . .
" 

/9/  ILL. REV. STAT., C. 38, SEC. 12-6, PROVIDES THAT: 

"(A) A PERSON COMMITS INTIMIDATION WHEN, WITH INTENT TO CAUSE
ANOTHER TO PERFORM OR TO OMIT THE PERFORMANCE OF ANY ACT, HE
COMMUNICATES TO ANOTHER A THREAT TO PERFORM WITHOUT LAWFUL AUTHORITY
ANY OF THE FOLLOWING ACTS:

       .          .          .          . 

"(3) COMMIT ANY CRIMINAL OFFENSE . . . " 

MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, AND MR. JUSTICE MARSHALL
CONCUR IN THE RESULT. 

(FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 58.) 

THOMAS E. BRANNIGAN ARGUED THE CAUSE FOR APPELLANTS ON THE SECOND
REARGUMENT.  DEAN H. BILTON ARGUED THE CAUSE FOR APPELLANTS ON THE
FIRST REARGUMENT.  RONALD BUTLER ARGUED THE CAUSE FOR APPELLANTS ON THE
ORIGINAL ARGUMENT.  WITH MESSRS.  BUTLER AND BILTON ON THE BRIEF WERE
DANIEL P. COMAN AND DANIEL W. WEIL. 

ELLIS E. REID ARGUED THE CAUSE FOR APPELLEES ON THE ORIGINAL
ARGUMENT AND ON THE REARGUMENTS.  WITH HIM ON THE BRIEF WERE ROBERT L.
TUCKER AND STANLEY A. BASS. 
..END :















PEREZ V. LEDESMA, 401 U.S. 82 


       PEREZ ET AL. V. LEDESMA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

    DISTRICT OF LOUISIANA

        NO. 60.  ARGUED NOVEMBER 17, 1970-- DECIDED FEBRUARY 23,

           1971 


APPELLEES, WHO HAD BEEN ARRESTED AND CHARGED WITH VIOLATING A
LOUISIANA STATUTE AND A PARISH ORDINANCE BY DISPLAYING FOR SALE
ALLEGEDLY OBSCENE MATERIAL (WHICH WAS SEIZED BY THE ARRESTING
OFFICERS), BROUGHT THIS SUIT IN THE FEDERAL DISTRICT COURT FOR A
DECLARATION THAT THE STATUTE AND ORDINANCE WERE UNCONSTITUTIONAL AND
FOR AN INJUNCTION AGAINST THEIR ENFORCEMENT.  A THREE-JUDGE COURT WHICH
WAS CONVENED UPHELD THE STATUTE AND DECLINED TO ISSUE AN INJUNCTION,
BUT, FINDING THAT THE ARRESTS AND SEIZURE WERE INVALID, ENTERED A
SUPPRESSION ORDER PROHIBITING THE USE IN STATE CRIMINAL PROCEEDINGS OF
THE ILLEGALLY SEIZED MATERIAL AND REQUIRING ITS RETURN TO APPELLEES. 
THE THREE-JUDGE COURT RECOGNIZED THAT IT HAD NO JURISDICTION TO PASS ON
THE CONSTITUTIONALITY OF THE ORDINANCE BUT EXPRESSED THE VIEW THAT THE
ORDINANCE WAS INVALID.  THE SINGLE-JUDGE COURT THEN DECLARED THE
ORDINANCE UNCONSTITUTIONAL.  APPELLANTS APPEALED DIRECTLY TO THIS COURT
FROM THE SUPPRESSION ORDER AND THE DECLARATORY JUDGMENT INVALIDATING
THE ORDINANCE.  HELD: 

1.  THE THREE-JUDGE COURT ERRED IN ISSUING THE SUPPRESSION ORDER AND
THEREBY STIFLING THE THEN-PENDING GOOD-FAITH STATE CRIMINAL PROCEEDING
DURING WHICH THE DEFENSE SHOULD FIRST RAISE ITS CONSTITUTIONAL CLAIMS. 
YOUNGER V. HARRIS, ANTE, P. 37.  PP. 84-85. 

2.  THIS COURT HAS NO JURISDICTION TO REVIEW ON DIRECT APPEAL THE
VALIDITY OF THE ORDER DECLARING THE ORDINANCE INVALID, SINCE IT WAS A
DECISION OF A SINGLE FEDERAL JUDGE AND AS SUCH WAS APPEALABLE ONLY TO
THE COURT OF APPEALS.  PP. 86-88. 

304 F.SUPP.  662, REVERSED IN PART, AND VACATED AND REMANDED IN
PART. 

BLACK, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND HARLAN, STEWART, AND BLACKMUN, JJ., JOINED.  STEWART, J., FILED
A CONCURRING OPINION, IN WHICH BLACKMUN, J., JOINED, POST, P. 89. 
DOUGLAS, J., FILED AN OPINION DISSENTING IN PART, POST, P. 90. 
BRENNAN, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN
PART, IN WHICH WHITE AND MARSHALL, JJ., JOINED, POST, P. 93. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

GIVEN OUR DECISIONS TODAY IN NO. 2, YOUNGER V. HARRIS, ANTE, P. 37;
NO. 7, SAMUELS V. MACKELL, AND NO. 9, FERNANDEZ V. MACKELL, ANTE, P.
66; NO. 4, BOYLE V. LANDRY, ANTE, P. 77; NO. 83, BYRNE V. KARALEXIS,
POST, P. 216; AND NO. 41, DYSON V. STEIN, POST, P. 200, IN WHICH WE
HAVE DETERMINED WHEN IT IS APPROPRIATE FOR A FEDERAL COURT TO INTERVENE
IN THE ADMINISTRATION OF A STATE'S CRIMINAL LAWS, THE DISPOSITION OF
THIS CASE SHOULD NOT BE DIFFICULT. 

        I 

LEDESMA AND THE OTHER APPELLEES OPERATED A NEWSSTAND IN THE PARISH
OF ST. BERNARD, LOUISIANA, WHERE THEY DISPLAYED FOR SALE ALLEGEDLY
OBSCENE MAGAZINES, BOOKS, AND PLAYING CARDS.  AS A RESULT OF THIS
ACTIVITY, APPELLEES WERE CHARGED IN FOUR INFORMATIONS FILED IN STATE
COURT WITH VIOLATIONS OF LOUISIANA STATUTE, LA. REV. STA.  ANN.  SEC.
14:106 (SUPP. 1970), AND ST. BERNARD PARISH ORDINANCE 21-60.  AFTER THE
STATE COURT PROCEEDINGS HAD COMMENCED BY THE FILING OF THE
INFORMATIONS, APPELLEES INSTITUTED THE INSTANT SUIT IN THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, NEW
ORLEANS DIVISION.  SINCE THE APPELLEES SOUGHT A JUDGMENT DECLARING A
STATE STATUTE OF STATEWIDE APPLICATION UNCONSTITUTIONAL, TOGETHER WITH
AN INJUNCTION AGAINST PENDING OR FUTURE PROSECUTIONS UNDER THE STATUTE,
A THREE-JUDGE COURT WAS CONVENED.  THAT COURT HELD THE LOUISIANA
STATUTE CONSTITUTIONAL ON ITS FACE, BUT RULED THAT THE ARRESTS OF
APPELLEES AND THE SEIZURE OF THE ALLEGEDLY OBSCENE MATERIALS WERE
INVALID FOR LACK OF A PRIOR ADVERSARY HEARING ON THE CHARACTER OF THE
SEIZED MATERIALS.  ALTHOUGH THE THREE-JUDGE COURT DECLINED TO ISSUE AN
INJUNCTION AGAINST THE PENDING OR ANY FUTURE PROSECUTIONS, IT DID ENTER
A SUPPRESSION ORDER AND REQUIRE THE RETURN OF ALL THE SEIZED MATERIAL
TO THE APPELLEES.  304 F.SUPP.  662, 667-670 (1969).  THE LOCAL
DISTRICT ATTORNEY AND OTHER LAW ENFORCEMENT OFFICERS APPEALED AND WE
SET THE CASE FOR ARGUMENT BUT POSTPONED THE QUESTION OF JURISDICTION TO
THE HEARING ON THE MERTIS.  399 U.S. 924 (1970).  /1/ 

IT IS DIFFICULT TO IMAGINE A MORE DISRUPTIVE INTERFERENCE WITH THE
OPERATION OF THE STATE CRIMINAL PROCESS SHORT OF AN INJUNCTION AGAINST
ALL STATE PROCEEDINGS.  EVEN THE THREE-JUDGE COURT RECOGNIZED THAT ITS
JUDGMENT WOULD EFFECTIVELY STIFLE THE THEN-PENDING STATE CRIMINAL
PROSECUTION. 

     "IN VIEW OF OUR HOLDING THAT THE ARRESTS AND SEIZURES IN THESE

CASES ARE INVALID FOR WANT OF A PRIOR ADVERSARY JUDICIAL

DETERMINATION OF OBSCENITY, WHICH HOLDING REQUIRES SUPPRESSION

  AND RETURN OF THE SEIZED MATERIALS, THE PROSECUTIONS SHOULD BE

  EFFECTIVELY TERMINATED."  304 F.SUPP.,AT 670. 

MOREOVER, THE DISTRICT COURT RETAINED JURISDICTION "FOR THE PURPOSES OF
HER HEREAFTER ENTERING ANY ORDERS NECESSARY TO ENFORCE" ITS VIEW OF THE
PROPER PROCEDURES IN THE THEN-PENDING STATE OBSCENITY PROSECUTION. 
ACCORDING TO OUR HOLDING IN YOUNGER V. HARRIS, SUPRA, SUCH FEDERAL
INTERFERENCE WITH A STATE PROSECUTION IS IMPROPER.  THE PROPRIETY OF
ARRESTS AND THE ADMISSIBILITY OF EVIDENCE IN STATE CRIMINAL
PROSECUTIONS ARE ORDINARILY MATTERS TO BE RESOLVED BY STATE TRIBUNALS,
SEE STEFANELLI V. MINARD, 342 U.S. 117 (1951), SUBJECT, OF COURSE, TO
REVIEW BY CERTIORARI OR APPEAL IN THIS COURT, OR, IN A PROPER CASE, ON
FEDERAL HABEAS CORPUS.  HERE LEDESMA WAS FREE TO PRESENT HIS FEDERAL
CONSTITUTIONAL CLAIMS CONCERNING ARREST AND SEIZURE OF MATERIALS OR
OTHER MATTERS TO THE LOUISIANA COURTS IN THE MANNER PERMITTED IN THAT
STATE.  ONLY IN CASES OF PROVEN HARASSMENT OR PROSECUTIONS UNDERTAKEN
BY STATE OFFICIALS IN BAD FAITH WITHOUT HOPE OF OBTAINING A VALID
CONVICTION AND PERHAPS IN OTHER EXTRAORDINARY CIRCUMSTANCES WHERE
IRREPARABLE INJURY CAN BE SHOWN IS FEDERAL INJUNCTIVE RELIEF AGAINST
PENDING STATE PROSECUTIONS APPROPRIATE.  SEE YOUNGER V. HARRIS, SUPRA;
EX PARTE YOUNG, 209 U.S. 123 (1908).  THERE IS NOTHING IN THE RECORD
BEFORE US TO SUGGEST THAT LOUISIANA OFFICIALS UNDERTOOK THESE
PROSECUTIONS OTHER THAN IN A GOOD-FAITH ATTEMPT TO ENFORCE THE STATE'S
CRIMINAL LAWS.  WE THEREFORE HOLD THAT THE THREE-JUDGE COURT IMPROPERLY
INTRUDED INTO THE STATE'S OWN CRIMINAL PROCESS AND REVERSE ITS ORDERS
SUPPRESSING EVIDENCE IN THE PENDING STATE PROSECUTION AND DIRECTING THE
RETURN OF ALL SEIZED MATERIALS. 

        II 

AFTER CRIPPLING LOUISIANA'S ABILITY TO ENFORCE ITS CRIMINAL STATUTE
AGAINST LEDESMA, THE THREE-JUDGE COURT EXPRESSED THE VIEW THAT THE
PARISH OF ST. BERNARD ORDINANCE 21-60 WAS INVALID.  ALTHOUGH THE COURT
BELOW RECOGNIZED THAT "IT IS NOT THE FUNCTION OF A THREE-JUDGE FEDERAL
DISTRICT COURT TO DETERMINE THE CONSTITUTIONALITY OR ENJOIN THE
ENFORCEMENT OF A LOCAL ORDINANCE," THE COURT NEVERTHELESS SEIZED THE
"OPPORTUNITY TO EXPRESS ITS VIEWS ON THE CONSTITUTIONALITY OF THE
ORDINANCE."  304 F.SUPP.  662, 670 N. 31 (1969).  JUDGE BOYLE, THE
DISTRICT JUDGE WHO INITIALLY REFERRED THE ACTION TO THE THREE-JUDGE
COURT, ADOPTED THAT COURT'S VIEW AND DECLARED THE PARISH ORDINANCE
INVALID.  THERE IS CONSIDERABLE QUESTION CONCERNING THE PROPRIETY OF
ISSUING A DECLARATORY JUDGMENT AGAINST A CRIMINAL LAW IN THE
CIRCUMSTANCES OF THIS CASE.  /2/

        III 

WE ARE, HOWEVER, UNABLE TO REVIEW THE DECISION CONCERNING THE LOCAL
ORDINANCE BECAUSE THIS COURT HAS NO JURISDICTION TO REVIEW ON DIRECT
APPEAL THE VALIDITY OF A DECLARATORY JUDGMENT AGAINST A LOCAL
ORDINANCE, SUCH AS ST. BERNARD PARISH ORDINANCE 21-60.  EVEN IF AN
ORDER GRANTING A DECLARATORY JUDGMENT AGAINST THE ORDINANCE HAD BEEN
ENTERED BY THE THREE-JUDGE COURT BELOW (WHICH IT HAD NOT), THAT COURT
WOULD HAVE BEEN ACTING IN THE CAPACITY OF A SINGLE-JUDGE COURT.  WE
HELD IN MOODY V. FLOWERS, 387 U.S. 97 (1967), THAT A THREE-JUDGE COURT
WAS NOT PROPERLY CONVENED TO CONSIDER THE CONSTITUTIONALITY OF A
STATUTE OF ONLY LOCAL APPLICATION, SIMILAR TO A LOCAL ORDINANCE.  UNDER
28 U.S.C. 1243 WE HAVE JURISDICTION TO CONSIDER ON DIRECT APPEAL ONLY
THOSE CIVIL ACTIONS "REQUIRED . . . TO BE HEARD AND DETERMINED" BY A
THREE-JUDGE COURT.  SINCE THE CONSTITUTIONALITY OF THIS PARISH
ORDINANCE WAS NOT "REQUIRED . . . TO BE HEARD AND DETERMINED" BY A
THREE-JUDGE PANEL, THERE IS NO JURISDICTION IN THIS COURT TO REVIEW
THAT QUESTION. 

THE FACT THAT A THREE-JUDGE COURT WAS PROPERLY CONVENED IN THIS CASE
TO CONSIDER THE INJUNCTIVE RELIEF REQUESTED AGAINST THE ENFORCEMENT OF
THE STATE STATUTE, DOES NOT GIVE THIS COURT JURISDICTION ON DIRECT
APPEAL OVER OTHER CONTROVERSIES WHERE THERE IS NO INDEPENDENT
JURISDICTIONAL BASE.  EVEN WHERE A THREE-JUDGE COURT IS PROPERLY
CONVENED TO CONSIDER ONE CONTROVERSY BETWEEN TWO PARTIES, THE PARTIES
ARE NOT NECESSARILY ENTITLED TO A THREE-JUDGE COURT AND A DIRECT APPEAL
ON OTHER CONTROVERSIES THAT MAY EXIST BETWEEN THEM.  /3/  SEE PUBLIC
SERVICE COMM'N V. BRASHEAR FREIGHT LINES, 306 U.S. 204 (1939). 

IN THIS CASE, THE ORDER GRANTING THE DECLARATORY JUDGMENT WAS NOT
ISSUED BY A THREE-JUDGE COURT, BUT RATHER BY JUDGE BOYLE, ACTING AS A
SINGLE DISTRICT JUDGE.  THE THREE-JUDGE COURT STATED: 

"THE VIEW EXPRESSED BY THIS COURT CONCERNING THE CONSTITUTIONALITY
OF THE ORDINANCE IS SHARED BY THE INITIATING FEDERAL DISTRICT JUDGE AND
IS ADOPTED BY REFERENCE IN HIS OPINION ISSUED CONTEMPORANEOUSLY
HEREWITH."  304 F.SUPP.,AT 670 N. 31.  THE LAST CLAUSE OF THE QUOTED
SENTENCE INDICATES WHAT, UNDER MOODY V. FLOWERS, MUST BE THE CASE:  THE
DECISION GRANTING DECLARATORY RELIEF AGAINST THE PARISH OF ST. BERNARD
ORDINANCE 21-60 WAS THE DECISION OF A SINGLE FEDERAL JUDGE.  THIS FACT
IS CONFIRMED BY THE ORDERS ENTERED BY THE TWO COURTS.  THE THREE-JUDGE
COURT ENTERED THE FOLLOWING ORDER AT THE END OF ITS OPINION. 

"ACCORDINGLY, FOR THE REASONS ASSIGNED, IT IS ORDERED THAT

  JUDGMENT IN BOTH CASES BE ENTERED DECREEING: 

     "1.  THAT ALL SEIZED MATERIALS BE RETURNED, INSTANTER, TO
THOSE FROM WHOM THEY WERE SEIZED,

     "2.  THAT SAID MATERIALS BE SUPPRESSED AS EVIDENCE IN ANY

  PENDING OR FUTURE PROSECUTIONS OF THE PLAINTIFFS, 

     "3.  THAT THE PRELIMINARY AND PERMANENT INJUNCTIONS PRAYED FOR
BE DENIED, AND 

"4.  THAT JURISDICTION BE RETAINED HEREIN FOR THE ISSUANCE OF

  SUCH FURTHER ORDERS AS MAY BE NECESSARY AND PROPER." 

THE ORDER OF THE SINGLE-JUDGE DISTRICT COURT IS AS FOLLOWS: 

    "FOR THE REASONS ASSIGNED IN THE FOREGOING 3-JUDGE COURT

  OPINION, IT IS ORDERED THAT JUDGMENT BE ENTERED HEREIN

  DECREEING: 

     "1.  THAT ST. BERNARD PARISH ORDINANCE NO. 21-60 IS
UNCONSTITUTIONAL. 

     "2.  THAT JURISDICTION BE RETAINED HEREIN FOR THE ISSUANCE OF

  SUCH FURTHER ORDERS AS MAY BE NECESSARY AND PROPER."  304

  F.SUPP.,AT 670-671. 

THE FACT THAT THE CLERK OF THE DISTRICT COURT MERGED THESE ORDERS
INTO ONE JUDGMENT DOES NOT CONFER JURISDICTION UPON THIS COURT.  IN THE
FIRST PLACE, OUR JURISDICTION CANNOT BE MADE TO TURN ON AN INADVERTENT
ERROR OF A COURT CLERK.  SECOND, THE JURISDICTIONAL STATUTE BY ITS OWN
TERMS GRANTS A DIRECT APPEAL FROM "AN ORDER GRANTING OR DENYING" AN
INJUNCTION.  28 U.S.C. 1253.  SINCE THE ORDER ENTERED BY THE THREE
JUDGE COURT OMITS ANY REFERENCE TO DECLARATORY RELIEF, THE DISCUSSION
OF SUCH RELIEF IN THE COURT'S OPINION IS DICTUM. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED INSOFAR AS IT GRANTS
INJUNCTIVE RELIEF.  IN ALL OTHER RESPECTS THE JUDGMENT IS VACATED AND
THE CASE REMANDED TO THE UNITED STATES DISTRICT COURT WITH INSTRUCTIONS
TO ENTER A FRESH DECREE FROM WHICH THE PARTIES MAY TAKE AN APPEAL TO
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IF THEY SO DESIRE. 

              IT IS SO ORDERED. 

/1/  UNDER 28 U.S.C. 1253 AN AGGRIEVED PARTY IN ANY CIVIL ACTION
REQUIRED TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES
"MAY APPEAL TO THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING . .
. AN INTERLOCUTORY OR PERMANENT INJUNCTION."  THE ORDERS DIRECTING THE
SUPPRESSION OF EVIDENCE AND THE RETURN OF THE SEIZED MATERIAL WERE
INJUNCTIVE ORDERS AGAINST THE APPELLANTS.  THUS, WE HAVE JURISDICTION
TO REVIEW THOSE ORDERS. 

/2/  AT THE TIME THE INSTANT FEDERAL COURT SUIT WAS FILED, THERE WAS
PENDING IN LOUISIANA STATE COURT A CRIMINAL PROSECUTION UNDER THE
PARISH ORDINANCE.  IN SAMUELS V. MACKELL, SUPRA, WE HELD THAT
INTERFERENCE WITH PENDING STATE CRIMINAL PROSECUTIONS BY DECLARATORY
JUDGMENTS IS SUBJECT TO THE SAME RESTRICTIONS CURBING FEDERAL
INTERFERENCE BY INJUNCTION.  ID., AT 73.  AS INDICATED ABOVE, THERE ARE
NO FACTS PRESENT IN THIS RECORD TO SHOW THAT APPELLEES WOULD SUFFER
IRREPARABLE INJURY OF THE KIND NECESSARY TO JUSTIFY FEDERAL INJUNCTIVE
INTERFERENCE WITH THE STATE CRIMINAL PROCESSES. 

/3/  ASIDE FROM THE LIMITED LOCAL APPLICATION OF THE ORDINANCE,
WHICH BARS A DIRECT APPEAL UNDER MOODY V. FLOWERS, 387 U.S. 97 (1967),
THERE IS A QUESTION WHETHER A SUCCESSFUL PARTY CAN PROPERLY MAINTAIN AN
APPEAL.  THE STATUTE, 28 U.S.C. 1253, PERMITS A DIRECT APPEAL ONLY FROM
AN ORDER GRANTING OR DENYING AN INJUNCTION.  THE STATE SUCCESSFULLY
OPPOSED AN INJUNCTION AGAINST THE ENFORCEMENT OF THE PARISH ORDINANCE
IN THE COURT BELOW AND NOW CANNOT APPEAL FROM ITS VICTORY.  SEE GUNN V.
UNIVERSITY COMMITTEE TO END THE WAR IN VIET NAM, 399 U.S. 383, 391
(1970) (WHITE, J., CONCURRING). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BLACKMUN JOINS,
CONCURRING. 

IN JOINING THE OPINION AND JUDGMENT OF THE COURT, I ADD THESE FEW
CONCURRING WORDS. 

THE THREE-JUDGE DISTRICT COURT'S DECREE SUPPRESSING THE USE OF THE
SEIZED MATERIAL AS EVIDENCE AND ORDERING ITS RETURN TO THE APPELLEES
WAS AN INJUNCTIVE ORDER, FROM WHICH AN APPEAL WAS PROPERLY TAKEN
DIRECTLY TO THIS COURT.  28 U.S.C. 1253.  THE DECREE WAS PLAINLY WRONG
UNDER STEFANELLI V. MINARD, 342 U.S. 117, AND I AGREE THAT IT MUST BE
REVERSED.  IN STEFANELLI WE AFFIRMED THE REFUSAL OF A FEDERAL DISTRICT
COURT TO SUPPRESS THE USE IN A PENDING STATE PROSECUTION OF EVIDENCE
THAT THE PETITIONERS ALLEGED HAD BEEN OBTAINED IN AN UNLAWFUL SEARCH. 
OUR RULING THERE IS CLEARLY APPLICABLE TO THE FACTS BEFORE US: 

     "WE HOLD THAT THE FEDERAL COURTS SHOULD REFUSE TO INTERVENE IN

  STATE CRIMINAL PROCEEDINGS TO SUPPRESS THE USE OF EVIDENCE EVEN

  WHEN CLAIMED TO HAVE BEEN SECURED BY UNLAWFUL SEARCH AND

  SEIZURE."  342 U.S.,AT 120. 

SEE ALSO CLEARY V. BOLGER, 371 U.S. 392, 400. 

I ALSO AGREE THAT THE APPEAL FROM THE DECLARATORY JUDGMENT HOLDING
THE PARISH ORDINANCE UNCONSTITUTIONAL IS NOT PROPERLY BEFORE US.  THIS
COURT HAS NO POWER TO CONSIDER THE MERITS OF THAT APPEAL FOR TWO QUITE
DISTINCT REASONS, EACH SUFFICIENT TO DEFEAT OUR JURISDICTION.  FIRST,
THE ORDINANCE IS NEITHER A STATE STATUTE NOR OF STATEWIDE APPLICATION. 
THE CASE THUS PRESENTS A FORTIORI THE SITUATION IN WHICH THE COURT
FOUND NO JURISDICTION IN MOODY V. FLOWERS, 387 U.S. 97, 101.  SECOND,
THE APPEAL IS FROM THE GRANT OF DECLARATORY RELIEF, NOT FROM THE GRANT
OR DENIAL OF AN INJUNCTION, AND JURISDICTION UNDER 28 U.S.C. 1253 IS
THEREFORE LACKING.  GUNN V. UNIVERSITY COMMITTEE TO END THE WAR IN VIET
NAM, 399 U.S. 383; ID., AT 391 (WHITE, J., CONCURRING). 

THIS IS NOT A CASE IN WHICH THE DISTRICT COURT'S ACTION ON THE
PRAYER FOR DECLARATORY RELIEF WAS SO BOUND UP WITH ITS ACTION ON THE
REQUEST FOR AN INJUNCTION THAT THIS COURT MIGHT, ON DIRECT APPEAL,
CONSIDER THE PROPRIETY OF DECLARATORY RELIEF ON PENDENCY GROUNDS.  CF.
ZWICKLER V. KOOTA, 389 U.S. 241; SAMUELS V. MACKELL, ANTE, P. 66. 
INDEED, THE DISTRICT COURT ITSELF RECOGNIZED THAT THE REQUEST FOR A
DECLARATORY JUDGMENT REGARDING THE LOCAL ORDINANCE WAS SO UNRELATED TO
THE PRAYER FOR INJUNCTIVE RELIEF AGAINST THE STATE STATUTE THAT THE
SINGLE DISTRICT JUDGE ENTERED A SEPARATE ORDER DECLARING THE ORDINANCE
UNCONSTITUTIONAL.    MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

        I 

THE THREE-JUDGE PANEL WAS PROPERLY CONVENED UNDER 28 U.S.C. 2281 TO
CONSIDER THE VALIDITY OF A LOUISIANA STATUTE OF GENERAL APPLICATION. 
THAT COURT WAS ALSO ASKED, HOWEVER, TO PASS ON AN ORDINANCE OF ST.
BERNARD PARISH.  BUT I AGREE WITH PART III OF THE OPINION OF THE COURT
WRITTEN BY MR. JUSTICE BLACK THAT WE HAVE NO JURISDICTION OVER THAT
PHASE OF THE LITIGATION. 

IT IS BY NOW ELEMENTARY THAT A THREE-JUDGE COURT MAY NOT BE CONVENED
TO CONSIDER THE VALIDITY OF A LOCAL ORDINANCE OR A STATUTE OF LOCAL
APPLICATION.  MOODY V. FLOWERS, 387 U.S. 97, 101.  THE THREE-JUDGE
COURT RECOGNIZED THAT IT HAD NO JURISDICTION TO PASS UPON THE
CONSTITUTIONALITY OF THE ORDINANCE; BUT IT EXPRESSED "ITS VIEWS . . .
IN THE INTEREST OF JUDICIAL ECONOMY (SINCE IT WAS) SHARED BY THE
INITIATING FEDERAL DISTRICT JUDGE AND IS ADOPTED BY REFERENCE IN HIS
OPINION ISSUED CONTEMPORANEOUSLY HEREWITH."  304 F.SUPP.  662, 670 N.
31.  IT THEN STATED THAT "(WE HAVE EXAMINED THE ORDINANCE AND FIND IT
TO BE UNCONSTITUTIONAL AND UNENFORCEABLE."  ID., AT 670. 

THE SINGLE DISTRICT JUDGE THEN ORDERED THAT A JUDGMENT BE ENTERED,
HOLDING THAT THE ORDINANCE WAS UNCONSTITUTIONAL.  304 F.SUPP.,AT 671. 
THAT ORDER IS OBVIOUSLY THE JUDGMENT WHICH IS THE BASIS OF AN APPEAL. 
LATER ON, THE CLERK ALSO ENTERED A JUDGMENT TO THAT EFFECT FOR THE
THREE-JUDGE COURT. 

THE JUDGMENT ENTERED PURSUANT TO THE ORDER OF THE SINGLE DISTRICT
JUDGE SHOULD GO TO THE COURT OF APPEALS FOR REVIEW, NOT TO THIS COURT. 
MOREOVER, EVEN IF THE JUDGMENT ENTERED BY THE CLERK WAS AUTHORIZED BY
THE THREE-JUDGE COURT, IT IS NOT PROPERLY HERE.  FOR THE ORDER OR
JUDGMENT CONCERNING THE ORDINANCE WOULD BE HERE ONLY IF THE THREE-JUDGE
COURT HAD PENDENT JURISDICTION OVER THE CLAIM. 

PENDENT JURISDICTION DOES EXTEND TO NONCONSTITUTIONAL GROUNDS FOR
CHALLENGING A STATUTE WHEN A CONSTITUTIONAL CHALLENGE IS ALSO RAISED. 
SILER V. LOUISVILLE & N. R. CO., 213 U.S. 175; DAVIS V. WALLACE, 257
U.S. 478, STERLING V. CONSTANTIN, 287 U.S. 378, 393; UNITED STATES V.
GEORGIA PUB. SERV. COMM'N, 371 U.S. 285; FLORIDA LIME GROWERS V.
JACOBSEN, 362 U.S. 73, 75-85; AND FLAST V. COHEN, 392 U.S. 83, 88-91. 
STATE CAUSES OF ACTION HAVE BEEN APPENDED TO FEDERAL CAUSES OF ACTION
IN A ONE-JUDGE COURT WHERE ALL CAUSES OF ACTION AROSE OUT OF THE SAME
SET OF FACTS.  UNITED MINE WORKERS V. GIBBS, 383 U.S. 715.  THIS CASE,
HOWEVER, DOES NOT INVOLVE A CHALLENGE TO ONE STATUTE OR A REQUEST FOR
ONE AWARD OF RELIEF ON DIFFERENT GROUNDS, BUT A CHALLENGE TO TWO
DIFFERENT LAWS ON THE SAME GROUNDS.  THE ONLY ARGUMENT FOR CONSIDERING
BOTH THESE LAWS TOGETHER IS THAT LEDESMA WAS CHARGED UNDER BOTH.  THIS
IS NOT SUFFICIENT, UNDER ANY RULING OF THIS COURT, TO GIVE
JURISDICTION, ON DIRECT APPEAL, OVER THE RULING.  THE APPELLANTS DID
NOT CHALLENGE THE JURISDICTION OF THE THREE-JUDGE COURT OR THE
APPELLATE JURISDICTION OF THIS COURT OVER THIS CLAIM.  BUT SUBJECT
MATTER JURISDICTION OF THE FEDERAL COURTS MAY NOT BE BESTOWED BY THE
PARTIES.  UNITED STATES V. GRIFFIN, 303 U.S. 226, 229.  THE CASES CITED
BY APPELLANTS DO NOT SUPPORT JURISDICTION OVER THIS CLAIM.  ZEMEL V.
RUSK, 381 U.S. 1, ALLOWED A CHALLENGE TO AN ADMINISTRATIVE ACTION, AS
NOT AUTHORIZED BY STATUTE, TO BE JOINED WITH A CONSTITUTIONAL ATTACK ON
THE STATUTES WHICH PURPORTEDLY AUTHORIZED THE ACTION.  MILKY WAY
PRODUCTIONS V. LEARY (TOGETHER WITH NEW YORK FEED CO. V. LEARY), 305
F.SUPP.  288, WAS A PER CURIAM AFFIRMANCE, WITHOUT OPINION.  397 U.S.
98.  THE ISSUES PRESENTED TO THIS COURT WERE CONCEDED BY ALL PARTIES TO
BE CONSTITUTIONAL ATTACKS ON THE OBSCENITY STATUTES AND THE ARREST
WARRANT STATUTES OF NEW YORK.  BECAUSE THE THREE-JUDGE COURT HAD
JURISDICTION OVER THE ATTACK ON THE ARREST WARRANT STATUTES,
INDEPENDENT OF ANY OTHER CLAIM, THE ISSUE OF PENDENT JURISDICTION WAS
NOT INVOLVED AND WAS NOT RAISED.  /1/  THEREFORE, THAT PROBLEM WAS NOT
CONSIDERED IN OUR PER CURIAM, AND OUR AFFIRMANCE WAS NOT A HOLDING ON
PENDENT JURISDICTION.  WE CANNOT DECIDE PEREZ ON THE BASIS OF MILKY
WAY, BUT ONLY ON THE BASIS OF APPLICABLE PRECEDENT AND REASON.  AND NO
PRECEDENT OR REASON IS ADVANCED FOR ANY ENLARGEMENT OF PENDENT
JURISDICTION. 

IF A REWRITING OF THE LAW ON PENDENT JURISDICTION IS TO BE DONE, THE
CONGRESS SHOULD DO IT. 

THE PRESENT JUDGMENT SHOULD BE REVIEWED IN THE COURT OF APPEALS, NOT
HERE.  RORICK V. COMM'RS, 307 U.S. 208. 

        II 

AS TO THE ORDERS OF THE THREE-JUDGE COURT SUPPRESSING EVIDENCE IN
THE PROSECUTION UNDER THE LOUISIANA STATUTE, WHICH THE COURT SETS
ASIDE, I DISSENT.  MY VIEWS, WHICH ARE NOT CONGENIAL TO THE MAJORITY,
ARE SET FORTH AT SOME LENGTH IN YOUNGER V. HARRIS, ANTE, P. 58, AND
DYSON V. STEIN, POST, P. 204, DECIDED THIS DAY. 

/1/  NONE OF THE PARTIES RAISED ANY QUESTION CONCERNING PENDENT
JURISDICTION IN THIS COURT. 

NEW YORK FEED COMPLAINED THAT THE ARREST, WITHOUT PRIOR ADVERSARY
HEARING, WAS UNCONSTITUTIONAL. 

MILKY WAY ATTACKED THE ARREST WARRANT STATUTES AS UNCONSTITUTIONAL
"AS APPLIED IN LAW," ALLEGING THEY WERE OVERBROAD, AN ILLEGAL PRIOR
RESTRAINT, AND VAGUE. 

THE ATTORNEY GENERAL OF NEW YORK, IN BOTH CASES, TREATED THE CLAIM
AS AN ATTACK ON THE CONSTITUTIONALITY OF THE ARREST WARRANT STATUTES
AND ARGUED THAT THEY WERE CONSTITUTIONAL. 

THE DISTRICT ATTORNEY ARGUED THAT PETITIONERS' ATTACK ON THE ARREST
WARRANT STATUTES WAS IMPROPER BECAUSE THEY DID NOT PRECLUDE THE
ADVERSARY HEARING.  HE DID NOT, HOWEVER, RAISE ANY JURISDICTIONAL
QUESTIONS AS TO THE POWER OF THE THREE-JUDGE COURT TO PASS ON THE
LEGALITY OF THE ARRESTS. 

THE CITY OF NEW YORK RAISED NO JURISDICTIONAL CHALLENGE. 

IN REPLY, BOTH PETITIONERS ARGUED THAT THE ARREST WARRANT STATUTES
WERE "UNCONSTITUTIONAL AS APPLIED IN LAW." 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE WHITE AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

THIS CASE PRESENTS QUESTIONS REGARDING FEDERAL COURT INTERVENTION
AFFECTING THE ADMINISTRATION OF STATE CRIMINAL LAWS THAT WERE NOT
PRESENTED IN NO. 2, YOUNGER V. HARRIS, ANTE, P. 37; NO. 7, SAMUELS V.
MACKELL, AND NO. 9, FERNANDEZ V. MACKELL, ANTE, P. 66; NO. 4, BOYLE V.
LANDRY, ANTE, P. 77; NO. 83, BYRNE V. KARALEXIS, POST, P. 216; AND NO.
41, DYSON V. STEIN, POST, P. 200, ALL DECIDED TODAY. 

APPELLEES OPERATE A NEWSTAND IN THE PARISH OF ST. BERNARD,
LOUISIANA.  ON JANUARY 27, 1969, SHERIFF'S OFFICERS OF THE PARISH,
WITHOUT WARRANTS, RAIDED THE NEWSSTAND, SEIZED ALLEGEDLY OBSCENE
MAGAZINES, BOOKS, AND PLAYING CARDS FROM THE SHELVES, AND ARRESTED
APPELLEE AUGUST M. LEDESMA, JR., AN OWNER, FOR DISPLAYING OBSCENE
MATERIALS FOR SALE.  ON FEBRUARY 10, 1969, FOUR INFORMATIONS WERE FILED
IN THE STATE DISTRICT COURT, TWO CHARGING LEDESMA WITH THE CRIME OF
OBSCENITY IN VIOLATION OF A LOUISIANA STATUTE, LA. REV. STAT. ANN. SEC.
14:106 (SUPP. 1970), AND TWO CHARGING HIM WITH OBSCENITY IN VIOLATION
OF ST. BERNARD PARISH ORDINANCE 21-60.  THE STATUTE AND ORDINANCE
APPEAR AS AN APPENDIX TO THIS OPINION.  ON FEBRUARY 17, 1969, APPELLEES
FILED THE INSTANT ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA, NEW ORLEANS DIVISION.  THEIR COMPLAINT
SOUGHT A JUDGMENT UNDER THE FEDERAL DECLARATORY JUDGMENT ACT, 28 U.S.C.
2201, DECLARING THE STATE STATUTE AND PARISH ORDINANCE
UNCONSTITUTIONAL; AN INJUNCTION AGAINST PENDING AND FUTURE PROSECUTIONS
UNDER EITHER ENACTMENT; AND AN INJUNCTION DIRECTING THE RETURN OF THE
SEIZED MAGAZINES, BOOKS, AND PLAYING CARDS AND SUPPRESSING THEIR USE AS
EVIDENCE IN ANY PENDING OR FUTURE CRIMINAL PROSECUTION AGAINST THE
APPELLEES.  A THREE-JUDGE COURT WAS CONVENED.  PRIOR TO THE FEDERAL
COURT HEARING, THE APPELLANT ENTERED A NOLLE PROSEQUI IN THE STATE
COURT ON THE TWO INFORMATIONS CHARGING VIOLATION OF THE PARISH
ORDINANCE. 

THE THREE-JUDGE COURT FILED AN OPINION HOLDING (1) THAT THE
LOUISIANA STATUTE WAS CONSTITUTIONAL IN ITS FACE; (B) THAT THE PARISH
ORDINANCE WAS UNCONSTITUTIONAL ON ITS FACE; AND (C) THAT THE ARREST OF
APPELLEE LEDESMA AND THE SEIZURE OF THE MAGAZINES, BOOKS, AND PLAYING
CARDS WERE UNCONSTITUTIONAL IN THE ABSENCE OF A PRIOR JUDICIAL
ADVERSARY HEARING DETERMINING THAT THE SEIZED MATERIALS WERE OBSCENE. 
304 F.SUPP.  662 (1969).  THE COURT STATED THAT BECAUSE IT WAS
CONFIDENT THE APPELLANTS WOULD COMPLY WITH THE COURT'S VIEWS IT WAS
"UNNECESSARY TO ISSUE ANY INJUNCTIONS" AGAINST "PENDING OR FUTURE
PROSECUTIONS OR FUTURE ARRESTS AND SEIZURES."  304 F.SUPP.,AT 670.  IN
PERTINENT PART THE JUDGMENT ENTERED ON AUGUST 14, 1969, THEREFORE
DECREED: 

     "1.  THAT ALL SEIZED MATERIALS BE RETURNED, INSTANTER, BY THE

  (APPELLANTS) TO THOSE (APPELLEES) FROM WHOM THEY WERE SEIZED, 

     "2.  THAT SAID MATERIALS BE SUPPRESSED AS EVIDENCE IN ANY

  PENDING OR FUTURE PROSECUTIONS OF THE (APPELLEES), 

     "3.  THAT THE PRELIMINARY AND PERMANENT INJUNCTIONS PRAYED FOR
BE DENIED, 

     "4.  THAT ST. BERNARD PARISH ORDINANCE NO. 21-60 IS
UNCONSTITUTIONAL."  APP. 106-107. 

WE POSTPONED CONSIDERATION OF THE QUESTION OF JURISDICTION TO THE
HEARING ON THE MERITS.  399 U.S. 924 (1970).  IN ADDITION TO THE
QUESTIONS PRESENTED IN THE JURISDICTIONAL STATEMENT, OUR ORDER
REQUESTED THE PARTIES TO BRIEF AND ARGUE THE FOLLOWING QUESTIONS: 

     "(1) WAS IT AN APPROPRIATE EXERCISE OF DISCRETION FOR THE

  THREE-JUDGE COURT TO GRANT THE RELIEF IN PARAGRAPHS 1 AND 2 OF

  THE JUDGMENT OF AUGUST 14, 1969, IN VIEW OF THE PENDENCY OF THE

  STATE PROSECUTION CHARGING VIOLATION OF LOUISIANA REVISED

  STATUTES SEC. 14:106? 

     "(2) WAS IT AN APPROPRIATE EXERCISE OF DISCRETION FOR THE

  THREE-JUDGE COURT IN PARAGRAPH 4 OF SAID JUDGMENT TO DECLARE THE

  ST. BERNARD PARISH ORDINANCE NO. 21-60 UNCONSTITUTIONAL?" 

I AGREE WITH THE COURT (1) THAT THIS IS A PROPER APPEAL TO THIS
COURT, AND (2) THAT IT WAS NOT AN APPROPRIATE EXERCISE OF DISCRETION
FOR THE THREE-JUDGE COURT TO GRANT THE RELIEF IN PARAGRAPHS 1 AND 2 OF
THE JUDGMENT OF AUGUST 14, 1969.  I DISSENT, HOWEVER, FROM THE HOLDING
OF THE COURT THAT THE DECLARATORY JUDGMENT WHICH IS PARAGRAPH 4 OF THE
JUDGMENT OF THE THREE-JUDGE COURT IS NOT PROPERLY BEFORE US FOR
REVIEW.  I THINK THAT IT IS AND, ON THE MERITS, WOULD HOLD THAT IT WAS
AN APPROPRIATE EXERCISE OF DISCRETION FOR THE COURT IN PARAGRAPH 4 TO
DECLARE ST. BERNARD PARISH ORDINANCE NO. 21-60 UNCONSTITUTIONAL. 
UNCONSTITUTIONAL.  I WOULD, THEREFORE, REVERSE AND SET ASIDE PARAGRAPHS
1 AND 2 OF THE JUDGMENT OF AUGUST 14, 1969, BUT IN ALL OTHER RESPECTS
WOULD AFFIRM THAT JUDGMENT. 

        I

        JURISDICTION 

APPELLANTS' ASSERTION OF A RIGHT OF DIRECT APPEAL TO THIS COURT
RELIES UPON 28 U.S.C. 1253.  THAT SECTION PERMITS AN APPEAL IN ANY
CIVIL ACTION REQUIRED TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF
THREE JUDGES "FROM AN ORDER GRANTING OR DENYING . . . AN INTERLOCUTORY
OR PERMANENT INJUNCTION."  /1/  PARAGRAPH 3 OF THE ORDER OF AUGUST 14,
1969, DECREES:  "THAT THE PRELIMINARY AND PERMANENT INJUNCTIONS
(AGAINST PENDING AND FUTURE PROSECUTIONS) PRAYED FOR BE DENIED."  BUT
SEC. 1253 DOES NOT PERMIT THESE APPELLANTS TO APPEAL THIS PORTION OF
THE JUDGMENT, SINCE THEY PREVAILED TO THE EXTENT OF THIS DENIAL OF
APPELLEES' PRAYERS FOR INJUNCTIVE RELIEF.  GUNN V. UNIVERSITY COMMITTEE
TO END THE WAR IN VIET NAM, 399 U.S. 383, 391 (1970) (WHITE, J.,
CONCURRING).  HOWEVER, PARAGRAPHS 1 AND 2 OF THE JUDGMENT ARE
INJUNCTIVE ORDERS AGAINST APPELLANTS DIRECTING THEM NOT TO USE THE
SEIZED MATERIALS AS EVIDENCE AGAINST APPELLEES IN ANY PENDING OR FUTURE
PROSECUTIONS AND DIRECTING THE RETURN OF THOSE MATERIALS.  THESE
PROVISIONS CLEARLY QUALIFIED THE JUDGMENT AS AN ORDER "GRANTING . . .
AN . . . INJUNCTION," FROM WHICH APPELLANTS COULD APPEAL DIRECTLY TO
THIS COURT. 

        II

        THE INJUNCTIONS 

THE COMPANION CASES DECIDED TODAY HOLD THAT A FEDERAL COURT SHOULD
NOT INTERFERE BY INJUNCTION WITH AN EXISTING STATE CRIMINAL PROSECUTION
PENDING AGAINST THE FEDERAL COURT PLAINTIFF AT THE TIME THE FEDERAL
ACTION IS BROUGHT, EXCEPT UPON A SHOWING THAT GREAT, IMMEDIATE, AND
IRREPARABLE INJURY IS THREATENED.  SUCH A SHOWING MAY BE, FOR EXAMPLE,
IN THE FORM OF BAD-FAITH HARASSMENT OF THE FEDERAL COURT PLAINTIFF BY
STATE LAW ENFORCEMENT OFFICIALS.  THESE DECISIONS ADHERE TO THE POLICY
ESTABLISHED BY THIS COURT THAT, IN THE ABSENCE OF SUCH SHOWING, "(IT IS
GENERALLY TO BE ASSUMED THAT STATE COURTS AND PROSECUTORS WILL OBSERVE
(IN THE PENDING PROSECUTION) CONSTITUTIONAL LIMITATIONS AS EXPOUNDED BY
THIS COURT."  DOMBROWSKI V. PFISTER, 380 U.S. 479, 484 (1965).  WHILE
THE THREE-JUDGE COURT SUSTAINED THE CONSTITUTIONALITY OF THE STATE
STATUTE ON ITS FACE (A HOLDING NOT BEFORE US ON THIS APPEAL), THE COURT
INTERFERED WITH THE PENDING STATE PROSECUTION UNDER THE STATUTE TO THE
EXTENT OF ORDERING THE RETURN OF THE SEIZED MATERIALS AND SUPPRESSING
THEIR USE AS EVIDENCE IN THE PROSECUTION, THUS LEAVING THE STATE FREE
TO PROCEED WITH THE PROSECUTION ON THE BASIS OF OTHER EVIDENCE.  THIS
INTERFERENCE WAS IMPROPER ON THIS RECORD.  THERE IS AN UTTER ABSENCE OF
ANY EVIDENCE THAT THE SEIZURES AND THE ARREST OF APPELLEE LEDESMA, AND
THE FILING OF THE INFORMATIONS ACCUSING LEDESMA OF VIOLATION OF THE
STATE STATUTE, WERE UNDERTAKEN IN BAD FAITH TO HARASS APPELLEES, OR FOR
ANY PURPOSE EXCEPT THE GOOD-FAITH ENFORCEMENT OF THE STATE'S CRIMINAL
LAWS.  I HAVE NO OCCASION TO CONSIDER, AND INTIMATE NO VIEW UPON, THE
HOLDING OF THE FEDERAL DISTRICT COURT THAT, AS TO THE SEIZURES AND THE
ARREST OF APPELLEE LEDESMA, "THE CONCLUSION IS IRRESISTIBLE IN LOGIC
AND IN LAW THAT NONE OF THESE MAY BE CONSTITUTIONALLY UNDERTAKEN PRIOR
TO AN ADVERSARY JUDICIAL DETERMINATION OF OBSCENITY."  304 F.SUPP.,AT
667.  /2/  THAT APPEAL TO FEDERAL CONSTITUTIONAL PROTECTIONS WAS OPEN
TO APPELLEE LEDESMA IN THE STATE PROSECUTION BY WAY OF CHALLENGE, IN
ANY MANNER PERMITTED BY LOUISIANA CRIMINAL PROCEDURE, TO THE VALIDITY
OF THE ARREST, AND OBJECTIONS TO ADMISSION INTO EVIDENCE OF, OR MOTIONS
TO SUPPRESS USE OF, THE MATERIALS.  IN DOMBROWSKI, THE COURT EXPRESSLY
INCLUDED CONTROVERSIES OVER THE ADMISSIBILITY OF EVIDENCE AS
CONTROVERSIES WHICH, WITHOUT MORE, INVOLVED "NO SPECIAL CIRCUMSTANCES
TO WARRANT CUTTING SHORT THE NORMAL ADJUDICATION OF CONSTITUTIONAL
DEFENSES IN THE COURSE OF A (STATE) CRIMINAL PROSECUTION."  380 U.S.AT
485.  THE COURT SAID: "IT IS DIFFICULT TO THINK OF A CASE IN WHICH AN
ACCUSED COULD PROPERLY BRING A STATE PROSECUTION TO A HALT WHILE A
FEDERAL COURT DECIDES HIS CLAIM THAT CERTAIN EVIDENCE IS RENDERED
INADMISSIBLE BY THE FOURTEENTH AMENDMENT."  ID., AT 485 N. 3.  WHILE
THERE MAY BE CIRCUMSTANCES IN WHICH A FEDERAL COURT COULD PROPERLY
ADJUDICATE SUCH A CLAIM, THIS RECORD DISCLOSES NONE WHICH JUSTIFIED
THIS THREE-JUDGE COURT IN DOING SO.  I THEREFORE JOIN THE COURT IN
CONCLUDING THAT PARAGRAPHS 1 AND 2 OF THE JUDGMENT SHOULD BE REVERSED
AND SET ASIDE. 

        III

        THE DECLARATORY JUDGMENT AS TO THE PARISH ORDINANCE 

THRESHOLD QUESTIONS MUST BE ANSWERED BEFORE THE MERITS OF THE
DECLARATORY JUDGMENT WHICH IS PARAGRAPH 4 OF THE JUDGMENT OF THE THREE
JUDGE COURT ARE REACHED. 

THE FIRST THRESHOLD QUESTION IS WHETHER THE DECLARATORY JUDGMENT IS
PROPERLY BEFORE US FOR REVIEW.  TWO OPINIONS, BOTH WRITTEN BY JUDGE
BOYLE WHO INITIATED THE THREE-JUDGE PANEL, WERE FILED ON JULY 14, 1969,
ONE FOR THE THREE-JUDGE COURT AND THE OTHER A SEPARATE OPINION OF JUDGE
BOYLE.  JUDGE BOYLE'S OPINION FOR THE THREE JUDGES EXPLAINED:
"ALTHOUGH IT IS NOT THE FUNCTION OF A THREE-JUDGE FEDERAL DISTRICT
COURT TO DETERMINE THE CONSTITUTIONALITY OR ENJOIN THE ENFORCEMENT OF A
LOCAL ORDINANCE, AS DISTINGUISHED FROM STATUTES OF STATE-WIDE
APPLICATION, MOODY V. FLOWERS, 387 U.S. 97 (1967), THE COURT TAKES THIS
OPPORTUNITY TO EXPRESS ITS VIEWS ON THE CONSTITUTIONALITY OF THE
ORDINANCE IN THE INTEREST OF JUDICIAL ECONOMY.  THE VIEW EXPRESSED BY
THIS COURT CONCERNING THE CONSTITUTIONALITY OF THE ORDINANCE IS SHARED
BY THE INITIATING FEDERAL DISTRICT JUDGE AND IS ADOPTED BY REFERENCE IN
HIS OPINION ISSUED CONTEMPORAENOUSLY HEREWITH."  304 F.SUPP.,AT 670 N.
31.  JUDGE BOYLE'S SEPARATE OPINION WAS A BRIEF STATEMENT:  "FOR THE
REASONS ASSIGNED IN THE FOREGOING 3-JUDGE COURT OPINION, IT IS ORDERED
THAT JUDGMENT BE ENTERED HEREIN DECREEING:  1.  THAT ST. BERNARD PARISH
ORDINANCE NO. 21-60 IS UNCONSTITUTIONAL.  2.  THAT JURISDICTION BE
RETAINED HEREIN FOR THE ISSUANCE OF SUCH FURTHER ORDERS AS MAY BE
NECESSARY AND PROPER."  304 F.SUPP.,AT 671. 

THE COURT HOLDS THAT WE HAVE NO JURISDICTION TO REVIEW THE
DECLARATORY JUDGMENT ON THE PREMISE THAT THE DECLARATORY JUDGMENT
AGAINST THE LOCAL ORDINANCE WAS NOT ISSUED BY THE THREE-JUDGE COURT BUT
RATHER BY JUDGE BOYLE ACTING AS A SINGLE JUDGE.  WITH ALL RESPECT THIS
IS NOT THE CASE.  BOTH THE COURT AND MY BROTHERS DOUGLAS AND STEWART
INSIST THAT JUDGE BOYLE'S SEPARATE STATEMENT WAS IN FACT A JUDGMENT.  I
WOULD SUPPOSE JUDGE BOYLE HIMSELF IS THE BEST AUTHORITY AS TO THAT AND
HE EXPRESSLY REFERRED TO THE STATEMENT AS "HIS OPINION."  APPEALS ARE,
OF COURSE, TAKEN FROM JUDGMENTS AND NOT FROM OPINIONS.  NO JUDGMENT WAS
ENTERED BY JUDGE BOYLE PURSUANT TO HIS SEPARATE OPINION AND THEREFORE
THERE EXISTED NO JUDGMENT PURSUANT TO THE ORDER OF THE SINGLE JUDGE TO
GO TO THE COURT OF APPEALS FOR REVIEW.  THE ONLY JUDGMENT ENTERED IN
THE CASE WAS THAT ENTERED BY THE THREE-JUDGE COURT ON AUGUST 14, 1969. 
SINCE THE INJUNCTIONS IN PARAGRAPHS 1 AND 2 RENDERED THAT JUDGMENT
APPEALABLE DIRECTLY TO THIS COURT, PARAGRAPH 4 OF THAT JUDGMENT, THE
DECLARATORY JUDGMENT, IS NECESSARILY BEFORE US. 

HOWEVER, OTHER CONSIDERATIONS REQUIRE THAT WE DECIDE WHETHER THE
THREE-JUDGE COURT PROPERLY RENDERED THE DECLARATORY JUDGMENT.  OUR PER
CURIAM AFFIRMANCE IN MILKY WAY PRODUCTIONS V. LEARY, 305 F.SUPP.  288
(SDNY 1969), AFF'D, 397 U.S. 98 (1970), FULLY SUPPORTS THE ACTION OF
THE THREE-JUDGE COURT IN DOING SO.  THAT CASE DID NOT PRESENT ATTACKS
ON A STATUTE AND ORDINANCE BUT RATHER ATTACKS ON TWO DIFFERENT NEW YORK
STATUTES.  THE FIRST ATTACK WAS ON N.Y. PENAL LAW SEC. 235.00 (1965),
NEW YORK'S GENERAL OBSCENITY STATUTE.  THE SECOND ATTACK WAS ON N.Y.
CODE CRIM. PROC. SECS. 148-150 (SUPP. 1970 1971).  THE DISTRICT COURT
HELD THAT A THREE-JUDGE COURT WAS REQUIRED TO DEAL WITH THE ATTACK ON
SEC. 235.00 SINCE THE CLAIM WAS THAT THAT SECTION WAS FACIALLY
UNCONSTITUTIONAL.  HOWEVER, THE ATTACK ON SECS. 148-150 OF THE CODE OF
CRIMINAL PROCEDURE WAS NOT THAT THOSE SECTIONS WERE FACIALLY
UNCONSTITUTIONAL BUT ONLY THAT THOSE SECTIONS WERE UNCONSTITUTIONALLY
INVOKED BEFORE THERE HAD BEEN AN ADVERSARY JUDICIAL DETERMINATION ON
THE OBSCENITY OF THE PUBLICATIONS IN QUESTION (I.E., AS APPLIED).  THE
DISTRICT COURT ACKNOWLEDGED THAT THE ATTACK ON THE CODE PROVISIONS WAS
THUS PROBABLY NOT FOR DETERMINATION BY THREE JUDGES, BUT "AS A SIMPLE
CLAIM OF OFFICIAL LAWLESSNESS, COGNIZABLE BY ONE JUDGE."  305
F.SUPP.,AT 295.  NEVERTHELESS, THE DISTRICT COURT, INVOKING THE
PRINCIPLE THAT ONCE THREE-JUDGE COURT JURISDICTION IS ESTABLISHED ON
ONE CLAIM, THE COURT MAY CONSIDER OTHER ISSUES THAT ALONE WOULD NOT
HAVE CALLED FOR THREE JUDGES, HELD THAT, SINCE THERE WAS THREE-JUDGE
JURISDICTION OF THE CLAIM OF THE FACIAL UNCONSTITUTIONALITY OF SEC.
235.00, JURISDICTION EXISTED ALSO TO DETERMINE THE MERITS OF THE CLAIM
THAT THE CRIMINAL PROCEDURE PROVISIONS WERE UNCONSTITUTIONALLY
APPLIED.  305 F.SUPP.,AT 295-296.  OUR AFFIRMANCE SUSTAINED THIS
HOLDING.  PLAINLY THAT AFFIRMANCE GOVERNS THIS CASE AND SUSTAINS THE
PROPRIETY OF THE ACTION OF THE THREE-JUDGE COURT IN PASSING ON THE
CONSTITUTIONALITY OF THE ORDINANCE.  APPELLANTS CONCEDE THAT MILKY WAY
FORECLOSES ANY CHALLENGE ON THEIR PART TO THE ACTION OF THE THREE-JUDGE
COURT.  INDEED, THEY REGARD THE ACTION OF THE THREE-JUDGE COURT AS
SUPPORTED BY THE CASES IN THIS COURT AUTHORIZING THREE-JUDGE COURTS TO
CONSIDER ATTACKS ON STATUTES ON NONCONSTITUTIONAL GROUNDS WHEN THOSE
COURTS ARE PROPERLY CONVENED TO HEAR CONSTITUTIONAL CHALLENGES TO THE
STATUTES.  /3/ 

THE APPELLANTS ARGUE, HOWEVER, THAT NO CONTROVERSY REQUISITE TO
RELIEF UNDER THE FEDERAL DECLARATORY JUDGMENT ACT EXISTED AFTER THE
NOLLE PROSEQUI WAS ENTERED.  THIS ARGUMENT PRESENTS THE SECOND
THRESHOLD QUESTION. 

APPELLANTS RELY UPON GOLDEN V. ZWICKLER, 394 U.S. 103 (1969).  IN
THAT CASE A NEW YORK CRIMINAL STATUTE PROHIBITED THE DISTRIBUTION OF
ANONYMOUS HANDBILLS IN ELECTION CAMPAIGNS.  A DISTRIBUTOR OF ANONYMOUS
HANDBILLS OPPOSING THE RE-ELECTION OF A CONGRESSMAN SOUGHT IN FEDERAL
COURT A JUDGMENT DECLARING THE STATUTE UNCONSTITUTIONAL.  THE FEDERAL
ACTION WAS BROUGHT AFTER REVERSAL BY THE NEW YORK COURTS OF THE
APPELLEE'S CONVICTION FOR DISTRIBUTING HANDBILLS DURING AN EARLIER
CAMPAIGN OF THE CONGRESSMAN.  SEE ZWICKLER V. KOOTA, 389 U.S. 241
(1967).  APPELLEE DESIRED TO DISTRIBUTE HANDBILLS DURING A FORTHCOMING
CAMPAIGN OF THAT CONGRESSMAN, BUT THE CONGRESSMAN HAD RETIRED FROM
CONGRESS TO BECOME A JUSTICE OF THE NEW YORK SUPREME COURT.  IN THOSE
CIRCUMSTANCES THE COURT HELD THAT NO "CONTROVERSY" REQUISITE TO
DECLARATORY RELIEF EXISTED, SINCE ZWICKLER'S ONLY TARGET WAS A
PARTICULAR CONGRESSMAN AND "THE PROSPECT WAS NEITHER REAL NOR IMMEDIATE
OF A CAMPAIGN INVOLVING THE CONGRESSMAN."  394 U.S.,AT 109. 

THE SITUATION HERE IS QUITE DIFFERENT, HOWEVER.  "BASICALLY, THE
QUESTION IN EACH CASE IS WHETHER THE FACTS ALLEGED, UNDER ALL THE
CIRCUMSTANCES, SHOW THAT THERE IS A SUBSTANTIAL CONTROVERSY, BETWEEN
PARTIES HAVING ADVERSE LEGAL INTERESTS, OF SUFFICIENT IMMEDIACY AND
REALITY TO WARRANT THE ISSUANCE OF A DECLARATORY JUDGMENT."  MARYLAND
CASUALTY CO. V. PACIFIC COAL & OIL CO., 312 U.S. 270, 273 (1941). 
APPELLEES' COMPLAINT EXPRESSLY ALLEGES, AND THERE WAS NO EVIDENCE OR
FINDING TO THE CONTRARY, THAT APPELLEES "DESIRE TO CONTINUE TO KEEP FOR
SALE AND TO SELL" THE PUBLICATIONS AND PLAYING CARDS IN QUESTION. 
THUS, UNLIKE THE SITUATION IN GOLDEN, THE QUESTION OF THE
CONSTITUTIONALITY OF THE ORDINANCE IS "PRESENTED IN THE CONTEXT OF A
SPECIFIC LIVE GRIEVANCE."  394 U.S.,AT 110.  THIS CONCLUSION IS
BUTTRESSED BY THE FINDING OF THE THREE-JUDGE COURT THAT "(APPELLEES)
FEAR PROSECUTION (UNDER THE ORDINANCE) AT SOME FUTURE DATE."  304
F.SUPP.,AT 670.  INDEED, IN LIGHT OF THE APPELLANTS'  AGGRESSIVE
PROSECUTION OF APPELLEES, THE INFERENCE IS PERMISSIBLE THAT ANY
ATTEMPTS BY APPELLEES TO CONTINUE TO DISPLAY THE QUESTIONED
PUBLICATIONS FOR SALE MIGHT WELL AGAIN BE MET WITH PROSECUTIONS UNDER
BOTH THE STATUTE AND ORDINANCE.  THERE IS NO QUESTION THAT THERE IS A
CONTINUING CONTROVERSY BETWEEN THE APPELLANTS AND THE STATE INVOLVING
THE SALE OF ALLEGEDLY OBSCENE PUBLICATIONS.  APPELLANTS DID NOT ASSERT
THE CONTRARY BEFORE THE DISTRICT COURT, NOR DO THEY ASSERT THE CONTRARY
HERE.  /4/  I CONCLUDE THAT IT CANNOT BE SAID THAT THE THREE-JUDGE
COURT ERRED IN FINDING THAT THERE EXISTED THE "CONTROVERSY" REQUISITE
UNDER THE FEDERAL DECLARATORY JUDGMENT ACT. 

THE THIRD THRESHOLD QUESTION IS WHETHER THE STATE PROSECUTION UNDER
THE ORDINANCE WAS "PENDING" SO AS TO MAKE FEDERAL INTERVENTION
INAPPROPRIATE.  THE FACT IS, AS I HAVE ALREADY NOTED, THAT INFORMATIONS
AGAINST APPELLEE LEDESMA FOR VIOLATION OF THE ORDINANCE WERE
OUTSTANDING WHEN THIS FEDERAL SUIT WAS FILED.  HOWEVER, THE NOLLE
PROSEQUI OF THOSE INFORMATIONS WAS ENTERED BEFORE THE THREE-JUDGE COURT
CONVENED AND HEARD THE CASE.  THAT COURT THEREFORE TREATED THE CASE AS
ONE IN WHICH NO PROSECUTION UNDER THE ORDINANCE WAS PENDING.  THIS WAS
NOT ERROR.  THE AVAILABILITY OF DECLARATORY RELIEF WAS CORRECTLY
REGARDED TO DEPEND UPON THE SITUATION AT THE TIME OF THE HEARING AND
NOT UPON THE SITUATION WHEN THE FEDERAL SUIT WAS INITIATED.  SEE GOLDEN
V. ZWICKLER, 394 U.S.,AT 108.  THE PRINCIPLES OF COMITY AS THEY APPLY
TO FEDERAL COURT INTERVENTION, TREATED BY THE COURT TODAY IN NOS. 2, 4,
7, 9, 41, AND 83, SEE SUPRA, AT 93, PRESENT THIS ISSUE.  THE KEY
PREDICATE TO ANSWERING THE QUESTION WHETHER A FEDERAL COURT SHOULD STAY
ITS HAND, IS WHETHER THERE IS A PENDING STATE PROSECUTION WHERE THE
FEDERAL COURT PLAINTIFF MAY HAVE HIS CONSTITUTIONAL DEFENSES HEARD AND
DETERMINED.  ORDINARILY, THAT QUESTION MAY BE ANSWERED MERELY BY
EXAMINING THE DATES UPON WHICH THE FEDERAL AND STATE ACTIONS WERE
FILED.  IF THE STATE PROSECUTION WAS FIRST FILED AND IF IT PROVIDES AN
ADEQUATE FORUM FOR THE ADJUDICATION OF CONSTITUTIONAL RIGHTS, THE
FEDERAL COURT SHOULD NOT ORDINARILY INTERVENE.  WHEN, HOWEVER, AS HERE,
AT THE TIME OF THE FEDERAL HEARING THERE IS NO STATE PROSECUTION TO
WHICH THE FEDERAL COURT PLAINTIFF MAY BE RELEGATED FOR THE ASSERTION OF
HIS CONSTITUTIONAL DEFENSES, THE PRIMARY REASON FOR REFUSING
INTERVENTION IS ABSENT.  HERE, THERE WAS NO OTHER FORUM FOR THE
ADJUDICATION OF APPELLEES'  CONSTITUTIONAL OBJECTIONS TO THE
ORDINANCE. 

THERE IS, OF COURSE, SOME INTRUSION INTO A STATE ADMINISTRATION OF
ITS CRIMINAL LAWS WHENEVER A FEDERAL COURT RENDERS A DECLARATORY
JUDGMENT UPON THE CONSTITUTIONALITY OF A STATE CRIMINAL ENACTMENT.  THE
COURT HOLDS TODAY IN SAMUELS V. MACKELL, SUPRA, THAT CONSIDERATIONS OF
FEDERALISM ORDINARILY MAKE THE INTRUSION IMPERMISSIBLE IF A STATE
PROSECUTION UNDER THAT ENACTMENT IS PROCEEDING AT THE TIME THE FEDERAL
SUIT IS FILED.  THE COURT SAYS, "(IN CASES WHERE THE STATE CRIMINAL
PROSECUTION WAS BEGUN PRIOR TO THE FEDERAL SUIT, THE SAME EQUITABLE
PRINCIPLES RELEVANT TO THE PROPRIETY OF AN INJUNCTION MUST BE TAKEN
INTO CONSIDERATION BY FEDERAL DISTRICT COURTS IN DETERMINING WHETHER TO
ISSUE A DECLARATORY JUDGMENT, AND . . . WHERE AN INJUNCTION WOULD BE
IMPERMISSIBLE UNDER THESE PRINCIPLES, DECLARATORY RELIEF SHOULD
ORDINARILY BE DENIED AS WELL."  ID., AT 73.  BUT CONSIDERATIONS OF
FEDERALISM ARE NOT CONTROLLING WHEN NO STATE PROSECUTION IS PENDING AND
THE ONLY QUESTION IS WHETHER DECLARATORY RELIEF IS APPROPRIATE.  IN
SUCH CASE, THE CONGRESSIONAL SCHEME THAT MAKES THE FEDERAL COURTS THE
PRIMARY GUARDIANS OF CONSTITUTIONAL RIGHTS, AND THE EXPRESS
CONGRESSIONAL AUTHORIZATION OF DECLARATORY RELIEF, AFFORDED BECAUSE IT
IS A LESS HARSH AND ABRASIVE REMEDY THAN THE INJUNCTION, BECOME THE
FACTORS OF PRIMARY SIGNIFICANCE. 

THE CONTROVERSY OVER THE POWER OF FEDERAL COURTS TO DECLARE STATE
STATUTES UNCONSTITUTIONAL AND TO ENJOIN THEIR ENFORCEMENT HAS ROOTS
THAT REACH BACK AT LEAST TO CHISHOLM V. GEORGIA, 2 DALL.  419 (1793),
WHERE IN A CONTRACT ACTION THIS COURT HELD THAT A STATE COULD BE SUED
BY A CITIZEN OF ANOTHER STATE.  "THAT DECISION . . . CREATED SUCH A
SHOCK OF SURPRISE THROUGHOUT THE COUNTRY THAT, AT THE FIRST MEETING OF
CONGRESS THEREAFTER, THE ELEVENTH AMENDMENT TO THE CONSTITUTION WAS
ALMOST UNANIMOUSLY PROPOSED, AND WAS IN DUE COURSE ADOPTED BY THE
LEGISLATURES OF THE STATES."  HANS V. LOUISIANA, 134 U.S. 1, 11 (1890)
(BRADLEY, J.).  THE AMENDMENT WAS THOUGHT TO HAVE OVERRULED CHISHOLM. 
ALTHOUGH THE AMENDMENT MIGHT HAVE BEEN CONSTRUED TO GIVE A BROAD
IMMUNITY FROM FEDERAL SUITS TO STATES AND STATE OFFICIALS ACTING
PURSUANT TO STATE POLICY, THAT CONSTRUCTION WAS REJECTED IN OSBORN V.
BANK OF THE UNITED STATES, 9 WHEAT.  738, 847-848 (1824).  OSBORN
INVOLVED A CONFISCATORY STATE TAX ON A FEDERAL INSTRUMENTALITY.  IN
SUSTAINING A FEDERAL COURT INJUNCTION AGAINST THE STATE TAX, CHIEF
JUSTICE MARSHALL ANALYZED THE CONTROVERSY OVER FEDERAL JUDICIAL POWER
AS TESTING THE VIABILITY OF OUR FEDERAL SYSTEM: 

"THE ELEVENTH AMENDMENT . . . HAS EXEMPTED A STATE FROM THE SUITS OF
CITIZENS OF OTHER STATES . . .; AND THE VERY DIFFICULT QUESTION IS TO
BE DECIDED, WHETHER, IN SUCH A CASE, THE COURT MAY ACT UPON THE AGENTS
EMPLOYED BY THE STATE, AND ON THE PROPERTY IN THEIR HANDS. 

     "BEFORE WE TRY THIS QUESTION BY THE CONSTITUTION, IT MAY NOT
BE

  TIME MISAPPLIED, IF WE PAUSE FOR A MOMENT, AND REFLECT ON THE

  RELATIVE SITUATION OF THE UNION WITH ITS MEMBERS, SHOULD THE

  OBJECTION PREVAIL. 

      "A DENIAL OF JURISDICTION FORBIDS ALL INQUIRY INTO THE NATURE

  OF THE CASE.  IT APPLIES TO CASES PERFECTLY CLEAR IN THEMSELVES;

  TO CASES WHERE THE GOVERNMENT IS IN THE EXERCISE OF ITS BEST

  ESTABLISHED AND MOST ESSENTIAL POWERS, AS WELL AS TO THOSE WHICH

  MAY BE DEEMED QUESTIONABLE.  IT ASSERTS, THAT THE AGENTS OF A

  STATE, ALLEGING THE AUTHORITY OF A LAW VOID IN ITSELF, BECAUSE

  REPUGNANT TO THE CONSTITUTION, MAY ARREST THE EXECUTION OF ANY

  LAW IN THE UNITED STATES."  9 WHEAT.,AT 847-848. 

THOUGH RECOGNIZING THE SENSITIVITY OF GRANTING INJUNCTIONS IN THIS
CONTEXT, THE COURT HELD THAT NEITHER THE ELEVENTH AMENDMENT NOR ANY
PRINCIPLES OF FEDERALISM PREVENTED THE LOWER FEDERAL COURTS FROM GIVING
SUCH RELIEF WHERE NECESSARY TO VINDICATE PARAMOUNT FEDERAL LAW IN A
CASE WHERE A STATE WAS NOT ITSELF A PARTY OF RECORD.  THE BROAD REACH
OF THE REASONING IN OSBORN HAS SINCE BEEN QUALIFIED, SEE GENERALLY L.
JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 213-222 (1965), BUT
THE BASIC PRINCIPLE THAT IN APPROPRIATE CIRCUMSTANCES FEDERAL COURTS
WILL EXERCISE THEIR EQUITY POWER AGAINST STATE OFFICIALS TO PROTECT
RIGHTS SECURED AND ACTIVITIES AUTHORIZED BY PARAMOUNT FEDERAL LAW
REMAINS FIRMLY EMBEDDED IN OUR JURISPRUDENCE.  PENNOYER V. MCCONNAUGHY,
140 U.S. 1, 9-18 (1891); EX PARTE YOUNG, 209 U.S. 123 (1908); TRUAX V.
RAICH, 239 U.S. 33, 37-38 (1915); TERRACE V. THOMPSON, 263 U.S. 197,
214-215 (1923).  SEE ALSO LEITER MINERALS V. UNITED STATES, 352 U.S.
220, 225-226 (1957) (FRANKFURTER, J.). 

EX PARTE YOUNG WAS THE CULMINATION OF EFFORTS BY THIS COURT TO
HARMONIZE THE PRINCIPLES OF THE ELEVENTH AMENDMENT WITH THE EFFECTIVE
SUPREMACY OF RIGHTS AND POWERS SECURED ELSEWHERE IN THE CONSTITUTION. 
DURING THE YEARS BETWEEN OSBORN AND YOUNG, AND PARTICULARLY AFTER THE
CIVIL WAR, CONGRESS UNDERTOOK TO MAKE THE FEDERAL COURTS THE PRIMARY
GUARDIANS OF CONSTITUTIONAL RIGHTS.  THIS HISTORY WAS REVIEWED IN
ZWICKLER V. KOOTA, 389 U.S.,AT 245-249.  THE PRINCIPAL FOUNDATIONS OF
THE EXPANDED FEDERAL JURISDICTION IN CONSTITUTIONAL CASES WERE THE
CIVIL RIGHTS ACT OF 1871, 17 STAT. 13, WHICH IN SEC. 1 EMPOWERED THE
FEDERAL COURTS TO ADJUDICATE THE CONSTITUTIONALITY OF ACTIONS OF ANY
PERSON TAKEN UNDER COLOR OF STATE STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, SEE 42 U.S.C. 1983, 28 U.S.C. 1343(3), AND THE
JUDICIARY ACT OF 1875, 18 STAT. 470, WHICH GAVE LOWER FEDERAL COURTS
GENERAL FEDERAL-QUESTION JURISDICTION, SEE 28 U.S.C. 1331.  THESE TWO
STATUTES, TOGETHER, AFTER 1908, WITH THE DECISION IN EX PARTE YOUNG,
ESTABLISHED THE MODERN FRAMEWORK FOR FEDERAL PROTECTION OF
CONSTITUTIONAL RIGHTS FROM STATE INTERFERENCE.  THAT FRAMEWORK HAS BEEN
STRENGTHENED AND EXPANDED BY SUBSEQUENT ACTS OF CONGRESS AND SUBSEQUENT
DECISIONS OF THIS COURT. 

EX PARTE YOUNG INVOLVED A STATE REGULATORY STATUTE WITH PENAL
SANCTIONS.  AT THE SUIT OF RAILRAOD STOCKHOLDERS, A FEDERAL CIRCUIT
COURT TEMPORARILY ENJOINED THE RAILROAD FROM COMPLYING WITH THE
STATUTE, AND ALSO TEMPORARILY ENJOINED YOUNG, THE STATE ATTORNEY
GENERAL, FROM INSTITUTING ANY PROCEEDINGS TO ENFORCE THE STATUTE. 
YOUNG NEVERTHELESS BROUGHT AN ENFORCEMENT PROCEEDING IN A STATE COURT,
AND WAS THEREUPON HELD IN CONTEMPT BY THE CIRCUIT COURT.  HE BROUGHT
HABEAS CORPUS IN THIS COURT, CONTENDING THAT THE CIRCUIT COURT LACKED
JURISDICTION TO HOLD HIM IN CONTEMPT.  THIS COURT HELD, FIRST, THAT THE
ORIGINAL SUIT WAS PROPERLY WITHIN THE GENERAL FEDERAL-QUESTION
JURISDICTION OF THE CIRCUIT COURT; SECOND, THAT "INDIVIDUALS, WHO, AS
OFFICERS OF THE STATE, ARE CLOTHED WITH SOME DUTY IN REGARD TO THE
ENFORCEMENT OF THE LAWS OF THE STATE, AND WHO THREATEN AND ARE ABOUT TO
COMMENCE PROCEEDINGS, EITHER OF A CIVIL OR CRIMINAL NATURE, TO ENFORCE
AGAINST PARTIES AFFECTED AN UNCONSTITUTIONAL ACT, VIOLATING THE FEDERAL
CONSTITUTION, MAY BE ENJOINED BY A FEDERAL COURT OF EQUITY FROM SUCH
ACTION, 209 U.S.,AT 155-156; AND, THIRD, THAT A FEDERAL COURT OF EQUITY
HAS POWER IN APPROPRIATE CIRCUMSTANCES TO ENJOIN A FUTURE STATE
CRIMINAL PROSECUTION:  "WHEN (THE STATE) PROCEEDING IS BROUGHT TO
ENFORCE AN ALLEGED UNCONSTITUTIONAL STATUTE, WHICH IS THE SUBJECT
MATTER OF INQUIRY IN A SUIT ALREADY PENDING IN A FEDERAL COURT, THE
LATTER COURT HAVING FIRST OBTAINED JURISDICTION OVER THE SUBJECT
MATTER, HAS THE RIGHT, IN BOTH CIVIL AND CRIMINAL CASES, TO HOLD AND
MAINTAIN SUCH JURISDICTION, TO THE EXCLUSION OF ALL OTHER COURTS, UNTIL
ITS DUTY IS FULLY PERFORMED."  209 U.S.,AT 161-162. 

THE DECISION IN EX PARTE YOUNG PROVOKED A REACTION NOT UNLIKE THAT
WHICH GREETED CHISHOLM V. GEORGIA.  OPPOSITION FOCUSED PRINCIPALLY ON
THE POWER OF LOWER FEDERAL COURTS, AND OF SINGLE JUDGES OF SUCH COURTS,
TO ISSUE PRELIMINARY INJUNCTIONS, OFTEN EX PARTE, AGAINST THE
ENFORCEMENT OF STATE STATUTES, GENERALLY REGULATORY STATUTES CARRYING
PENALTIES.  SEE GENERALLY KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144,
154 (1963); H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 848-849 (1953); HUTCHESON, A CASE FOR THREE JUDGES, 47
HARV.L.REV.  795, 803-810 (1934); CURRIE, THE THREE-JUDGE DISTRICT
COURT IN CONSTITUTIONAL LITIGATION, 32 U.CHI.L.REV.  1, 5-7 (1964). 
THE OPINION IN EX PARTE YOUNG ANTICIPATED THE PROBLEM.  THE COURT NOTED
THE OBJECTION "THAT THE NECESSARY RESULT OF UPHOLDING THIS SUIT IN THE
CIRCUIT COURT WILL BE TO DRAW TO THE LOWER FEDERAL COURTS A GREAT FLOOD
OF LITIGATION OF THIS CHARACTER, WHERE ONE FEDERAL JUDGE WOULD HAVE IT
IN HIS POWER TO ENJOIN PROCEEDINGS BY STATE OFFICIALS TO ENFORCE THE
LEGISLATIVE ACTS OF THE STATE, EITHER BY CRIMINAL OR CIVIL ACTIONS." 
209 U.S.,AT 166.  THE SAME YEAR THE CASE WAS DECIDED CONGRESS
CONSIDERED A MEASURE TO DISABLE THE LOWER FEDERAL COURTS FROM ENJOINING
ENFORCEMENT OF STATE STATUTES, BUT THE PROPOSAL FAILED TO ATTRACT
SUFFICIENT SUPPORT FOR PASSAGE.  SEE 42 CONG.REC.  4848-4849 (1908). 
TWO YEARS LATER, A SIMILAR MEASURE PASSED THE HOUSE, SEE 46 CONG.REC. 
313, 316 (1910), BUT THE SENATE WOULD NOT ACCEPT IT.  SEE F.
FRANKFURTER AND J. LANDIS, THE BUSINESS OF THE SUPREME COURT 143
(1927).  HOWEVER, THE SAME YEAR, CONGRESS DID RESPOND TO EX PARTE
YOUNG.  IT DID NOT ATTEMPT TO OVERRULE THE CASE BY CONSTITUTIONAL
AMENDMENT OR BY STATUTE; IT DID NOT SEEK TO CONTAIN IT BY EXPANDING THE
STATUTORY BAR AGAINST FEDERAL INJUNCTIONS OF STATE PROCEEDINGS, 28
U.S.C. 2283, BEYOND STAYS OF SUITS ALREADY INSTITUTED; IT DID NOT
FOLLOW THE PRECEDENT OF THE ELEVENTH AMENDMENT BY EXCLUDING A CLASS OF
LITIGATION FROM FEDERAL JURISDICTION; NOR DID IT ANTICIPATE THE
TECHNIQUE OF THE NORRIS-LAGUARDIA ACT BY FORBIDDING THE USE OF THE
INJUNCTION IN A DEFINED CLASS OF CASES, SEE 47 STAT. 70, 29 U.S.C. 101
115.  RATHER, CONGRESS RATIFIED THE ACTIVE ROLE ASSIGNED TO THE FEDERAL
COURTS BY THE POST-CIVIL WAR LEGISLATION AND ACCEPTED THE BASIC
HOLDINGS OF EX PARTE YOUNG, BUT PROVIDED THAT A PRELIMINARY INJUNCTION
AGAINST ENFORCEMENT OF A STATE STATUTE COULD BE ISSUED ONLY BY A THREE
JUDGE DISTRICT COURT, SEE 36 STAT. 557, NOW 28 U.S.C. 2281, /5/  AND
THAT THE DECISION OF SUCH A COURT GRANTING OR DENYING AN INJUNCTION
WOULD BE DIRECTLY APPEALABLE TO THIS COURT.  SEE 28 U.S.C. 1253.  THUS
THE THREE-JUDGE COURT ACT CONFIRMED CONGRESS' ACCEPTANCE OF EX PARTE
YOUNG AND THE COURSE OF FEDERAL ADJUDICATION OF THE CONSTITUTIONALITY
OF STATE STATUTES WHICH IT REPRESENTED, REPRESENTED, /6/  AND CONGRESS
HAS NEVER DEPARTED FROM THAT ACCEPTANCE ON ANY OF THE SEVERAL OCCASIONS
WHEN IT HAS AMENDED THE ACT.  AS PROFESSOR WRIGHT HAS WRITTEN, "(THE
DOCTRINE OF EX PARTE YOUNG SEEMS INDISPENSABLE TO THE ESTABLISHMENT OF
CONSTITUTIONAL GOVERNMENT AND THE RULE OF LAW."  C. WRIGHT, HANDBOOK OF
THE LAW OF FEDERAL COURTS 186 (2D ED. 1970).  /7/ 

DURING THE PERIOD LEADING UP TO AND FOLLOWING EX PARTE YOUNG THE
FEDERAL INJUNCTION SUIT BECAME THE CLASSIC METHOD FOR TESTING THE
CONSTITUTIONALITY OF STATE STATUTES.  /8/  THE INJUNCTIVE REMEDY WAS
STRONG MEDICINE, AND THE THREE-JUDGE COURT ACT DID NOT ELIMINATE THE
DEFECTS IN AND THE WIDESPREAD HOSTILITY TO THE INJUNCTIOO PROCEDURE. 
THE PROCEDURE WAS UNSATISFACTORY FOR BOTH PRIVATE PLAINTIFFS AND STATE
DEFENDANTS:  A PLAINTIFF HAD THE BURDEN OF PROVING THE TRADITIONAL
EQUITY REQUIREMENTS FOR AN INJUNCTION; AND IF THE PLAINTIFF PREVAILED
IN COURT, AN INJUNCTION ISSUED AGAINST THE DEFENDANT STATE OFFICIAL,
PARALYZING ENFORCEMENT OF THE STATE STATUTE PENDING FURTHER REVIEW. 
CONSEQUENTLY, IN 1934, WITHOUT EXPANDING OR REDUCING THE SUBJECT MATTER
JURISDICTION OF THE FEDERAL COURTS, OR IN ANY WAY DIMINISHING THE
CONTINUING VITALITY OF EX PARTE YOUNG WITH RESPECT TO FEDERAL
INJUNCTIONS, CONGRESS EMPOWERED THE FEDERAL COURTS TO GRANT A NEW
REMEDY, THE DECLARATORY JUDGMENT.  SEE ACT OF JUNE 14, 1934, C. 512, 48
STAT. 955, NOW 28 U.S.C. 2201. 

THE EXPRESS PURPOSE OF THE FEDERAL DECLARATORY JUDGMENT ACT WAS TO
PROVIDE A MILDER ALTERNATIVE TO THE INJUNCTION REMEDY.  THE HOUSE
COMMITTEE REPORT STATED, "THE PRINCIPLE INVOLVED IN THIS FORM OF
PROCEDURE IS TO CONFER UPON THE COURTS THE POWER TO EXERCISE IN SOME
INSTANCES PREVENTIVE RELIEF; A FUNCTION NOW PERFORMED RATHER CLUMSILY
BY OUR EQUITABLE PROCEEDINGS AND INADEQUATELY BY THE LAW COURTS."  H.R.
REP. NO. 1264, 73D CONG., 2D SESS., 2 (1934).  OF PARTICULAR
SIGNIFICANCE ON THE QUESTION BEFORE US, THE SENATE REPORT MAKES IT EVEN
CLEARER THAT THE DECLARATORY JUDGMENT WAS DESIGNED TO BE AVAILABLE TO
TEST STATE CRIMINAL STATUTES IN CIRCUMSTANCES WHERE AN INJUNCTION WOULD
NOT BE APPROPRIATE: 

     "THE DECLARATORY JUDGMENT DIFFERS IN NO ESSENTIAL RESPECT FROM

  ANY OTHER JUDGMENT EXCEPT THAT IT IS NOT FOLLOWED BY A DECREE FOR

DAMAGES, INJUNCTION, SPECIFIC PERFORMANCE, OR OTHER IMMEDIATELY

  COERCIVE DECREE.  IT DECLARES CONCLUSIVELY AND FINALLY THE RIGHTS

  OF PARTIES IN LITIGATIONS OVER A CONTESTED ISSUE, A FORM OF

  RELIEF WHICH OFTEN SUFFICES TO SETTLE CONTROVERSIES AND FULLY

  ADMINISTER JUSTICE . . . IT HAS BEEN EMPLOYED IN STATE COURTS . .

  . FOR THE DECLARATION OF RIGHTS CONTESTED UNDER A STATUTE OR

  MUNICIPAL ORDINANCE, WHERE IT WAS NOT POSSIBLE OR NECESSARY TO

  OBTAIN AN INJUNCTION. 

        .          .          .          . 

     "THE PROCEDURE HAS BEEN ESPECIALLY USEFUL IN AVOIDING THE

  NECESSITY, NOW SO OFTEN PRESENT, OF HAVING TO ACT AT ONE'S PERIL

  OR TO ACT ON ONE'S RIGHTS BECAUSE OF A FEAR OF INCURRING

  DAMAGES.  SO NOW IT IS OFTEN NECESSARY, IN THE ABSENCE OF THE

  DECLARATORY JUDGMENT PROCEDURE, TO VIOLATE OR PURPORT TO VIOLATE

  A STATUTE IN ORDER TO OBTAIN A JUDICIAL DETERMINATION OF ITS

  MEANING OR VALIDITY.  COMPARE SHREDDED WHEAT CO. V. CITY OF ELGIN

  (284 ILL. 389, 120 N.E. 248, 1918), WHERE THE PARTIES WERE DENIED

  AN INJUNCTION AGAINST THE ENFORCEMENT OF A MUNICIPAL ORDINANCE

 CARRYING A PENALTY, AND WERE ADVISED TO PURPORT TO VIOLATE THE

  STATUTE AND THEN THEIR RIGHTS COULD BE DETERMINED, WITH ERWIN

  BILLIARD PARLOR V. BUCKNER (156 TENN. 278, 300 S.W. 565, 1927),

  WHERE A DECLARATORY JUDGMENT UNDER SUCH CIRCUMSTANCES WAS ISSUED

  AND SETTLED THE CONTROVERSY . . . 

      "THE FACT IS THAT THE DECLARATORY JUDGMENT HAS OFTEN PROVED
SO

  NECESSARY THAT IT HAS BEEN EMPLOYED UNDER OTHER NAMES FOR YEARS,

  AND THAT IN MANY CASES THE INJUNCTION PROCEDURE IS ABUSED IN

  ORDER TO RENDER WHAT IS IN EFFECT A DECLARATORY JUDGMENT.  FOR

  EXAMPLE, IN THE CASE OF PIERCE V. SOCIETY OF SISTERS (268 U.S.

  510, 525 . . . 1925), THE COURT . ISSUED AN INJUNCTION AGAINST

  THE ENFORCEMENT OF AN OREGON STATUTE WHICH WAS NOT TO COME INTO

  FORCE UNTIL 2 YEARS LATER; IN RENDERING A JUDGMENT DECLARING THE

  STATUTE VOID, THE COURT IN EFFECT ISSUED A DECLARATORY JUDGMENT

  BY WHAT WAS, IN EFFECT, APPARENTLY, AN ABUSE OF THE INJUNCTION. 

  SEE ALSO VILLAGE OF EUCLID V. AMBLER REALTY CO. (272 U.S. 365 . .

  . 1926).  MUCH OF THE HOSTILITY TO THE EXTENSIVE USE OF THE

  INJUNCTION POWER BY THE FEDERAL COURTS WILL BE OBVIATED BY

  ENABLING THE COURTS TO RENDER DECLARATORY JUDGMENTS. 

        .          .   .          . 

     "FINALLY, IT MAY BE SAID THAT THE DECLARATORY-JUDGMENT

  PROCEDURE HAS BEEN MOLDED AND SETTLED BY THOUSANDS OF PRECEDENTS,

  SO THAT THE ADMINISTRATION OF THE LAW HAS BEEN DEFINITELY

  CLARIFIED.  THE SUPREME COURT MENTIONED ONE OF ITS PRINCIPAL

  PURPOSES IN TERRACE V. THOMPSON (263 U.S. 197, 216 . . . 1923),

  BY BUTLER, J., WHEN IT SAID: 

     "'THEY ARE NOT OBLIGED TO TAKE THE RISK OF PROSECUTIONS, FINES

  AND IMPRISONMENT AND LOSS OF PROPERTY IN ORDER TO SECURE AN

  ADJUDICATION OF THEIR RIGHTS.'"  S. REP. NO. 1005, 73D CONG., 2D

  SESS., 2-3, 6 (1934). 

BOTH BEFORE AND AFTER THE ENACTMENT OF THE FEDERAL DECLARATORY JUDGMENT
ACT, THE PRACTICE OF THOSE STATES THAT PROVIDED A DECLARATORY REMEDY
WAS TO MAKE IT AVAILABLE TO TEST THE VALIDITY OF CRIMINAL LEGISLATION. 
SEE E. BORCHARD, DECLARATORY JUDGMENTS 1024 (2D ED. 1941).  PROFESSOR
BORCHARD, A LEADING PROPONENT OF THE ACT, TESTIFIED:  "MOST COURTS ARE
UNWILLING TO GRANT INJUNCTIONS . . . ON THE GROUND THAT IT IS A
CRIMINAL STATUTE, BUT YOU CAN GET A DECLARATORY JUDGMENT IN STATES THAT
HAVE IT."  HEARINGS ON H.R. 5623 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 70TH CONG., 1ST SESS., 19 (1928).  HE
TESTIFIED FURTHER THAT "WHEN FEDERAL COURTS DO GET POWER TO RENDER
DECLARATORY JUDGMENTS, INSTEAD OF RENDERING AN INJUNCTION, AS IS NOW
DONE, THAT REQUIRES THREE JUDGES, PLAINTIFF WILL GET A DECLARATORY
JUDGMENT.  YOU WOULD NOT BE ABLE TO GET AN INJUNCTION, IN SUCH CASES,
FROM ONE JUDGE, BUT YOU COULD GET A DECLARATORY JUDGMENT AS TO YOUR
RIGHTS."  ID., AT 39.  INDEED, EARLY IN THE HISTORY OF THE ACT THIS
COURT APPLIED IT TO TEST THE CONSTITUTIONALITY OF A FEDERAL STATUTE
CARRYING CRIMINAL SANCTIONS.  SEE CURRIN V. WALLACE, 306 U.S. 1
(1939).  PROFESSOR BORCHARD ALSO INTRODUCED A WRITTEN STATEMENT IN THE
HEARINGS, WHICH STATED IN PART: 

"(THE DECLARATORY JUDGMENT SERVES ANOTHER USEFUL PURPOSE.  IT OFTEN
HAPPENS THAT COURTS ARE UNWILLING TO GRANT INJUNCTIONS TO RESTRAIN THE
ENFORCEMENT OF PENAL STATUTES OR ORDINANCES, AND RELEGATE THE PLAINTIFF
TO HIS OPTION, EITHER TO VIOLATE THE STATUTE AND TAKE HIS CHANCES IN
TESTING CONSTITUTIONALITY ON A CRIMINAL PROSECUTION, OR ELSE TO FOREGO,
IN THE FEAR OF PROSECUTION, THE EXERCISE OF HIS CLAIMED RIGHTS.  INTO
THIS DILEMMA NO CIVILIZED LEGAL SYSTEM OPERATING UNDER A CONSTITUTION
SHOULD FORCE ANY PERSON.  THE COURT, IN EFFECT, BY REFUSING AN
INJUNCTION INFORMS THE PROSPECTIVE VICTIM THAT THE ONLY WAY TO
DETERMINE WHETHER THE SUSPECT IS A MUSHROOM OR A TOADSTOOL, IS TO EAT
IT.  ASSUMING THAT THE PLAINTIFF HAS A VITAL INTEREST IN THE
ENFORCEMENT OF THE CHALLENGED STATUTE OR ORDINANCE, THERE IS NO REASON
WHY A DECLARATORY JUDGMENT SHOULD NOT BE ISSUED, INSTEAD OF COMPELLING
A VIOLATION OF THE STATUTE AS A CONDITION PRECEDENT TO CHALLENGING ITS
CONSTITUTIONALITY."  HEARINGS ON H.R. 5623, SUPRA, AT 75-76.  THE
LEGISLATIVE HISTORY OF THE FEDERAL DECLARATORY JUDGMENT ACT IS
OVERWHELMING THAT DECLARATORY JUDGMENTS WERE TO BE FULLY AVAILABLE TO
TEST THE CONSTITUTIONALITY OF STATE AND FEDERAL CRIMINAL STATUTES. 
MUCH OF THE HOSTILITY TO FEDERAL INJUNCTIONS REFERRED TO IN THE SENATE
REPORT WAS HOSTILITY TO THEIR USE AGAINST STATE OFFICIALS SEEKING TO
ENFORCE STATE REGULATORY STATUTES CARRYING CRIMINAL SANCTIONS; THIS WAS
THE STRONG FEELING THAT PRODUCED THE THREE-JUDGE COURT ACT IN 1910, THE
JOHNSON ACT OF 1934, 28 U.S.C. 1342, AND THE TAX INJUNCTION ACT OF
1937, 28 U.S.C. 1341.  THE FEDERAL DECLARATORY JUDGMENT ACT WAS
INTENDED TO PROVIDE AN ALTERNATIVE TO INJUNCTIONS AGAINST STATE
OFFICIALS, EXCEPT WHERE THERE WAS A FEDERAL POLICY AGAINST FEDERAL
ADJUDICATION OF THE CLASS OF LITIGATION ALTOGETHER.  SEE DISCUSSION,
INFRA, AT 126-128, OF GREAT LAKES CO. V. HUGGMAN, 319 U.S. 293 (1943). 
MOREOVER, THE SENATE REPORT'S CLEAR IMPLICATION THAT DECLARATORY RELIEF
WOULD HAVE BEEN APPROPRIATE IN PIERCE V. SOCIETY OF SISTERS, 268 U.S.
510 (1925), AND VILLAGE OF EUCLID V. AMBLER REALTY CO., 272 U.S. 365
(1926), BOTH CASES INVOLVING FEDERAL ADJUDICATION OF THE
CONSTITUTIONALITY OF A STATE STATUTE CARRYING CRIMINAL PENALTIES, AND
THE REPORT'S QUOTATION FROM TERRACE V. THOMPSON, WHICH ALSO INVOLVED
ANTICIPATORY FEDERAL ADJUDICATION OF THE CONSTITUTIONALITY OF A STATE
CRIMINAL STATUTE, MAKE IT PLAIN THAT CONGRESS ANTICIPATED THAT THE
DECLARATORY JUDGMENT PROCEDURE WOULD BE USED BY THE FEDERAL COURTS TO
TEST THE CONSTITUTIONALITY OF STATE CRIMINAL STATUTES. 

THIS HISTORY COMPELS REJECTION OF THE COURT'S SUGGESTION, ANTE, AT
86 N. 2, THAT ALTHOUGH NO INFORMATIONS WERE PENDING AT THE TIME OF THE
HEARING, DECLARATORY RELIEF WAS INAPPROPRIATE IN THE ABSENCE OF A
SHOWING "THAT APPELLEES WOULD SUFFER IRREPARABLE INJURY OF THE KIND
NECESSARY TO JUSTIFY FEDERAL INJUNCTIVE INTERFERENCE WITH THE STATE
CRIMINAL PROCESSES."  CONGRESS EXPRESSLY REJECTED THAT LIMITATION AND
TO ENGRAFT IT UPON THE AVAILABILITY OF THE CONGRESSIONALLY PROVIDED
DECLARATORY REMEDY IS SIMPLY JUDICIAL DEFIANCE OF THE CONGRESSIONAL
MANDATE.  IT IS NOTHING SHORT OF JUDICIAL REPEAL OF THE STATUTE.  IF
THE STATUTE IS TO BE REPEALED OR REQRITTEN, IT MUST BE DONE BY
CONGRESS, NOT THIS COURT. 

EX PARTE YOUNG MAKES CLEAR THAT THE MOST SIGNIFICANT FACTOR
DETERMINING THE PROPRIETY OF FEDERAL INTERVENTION IS WHETHER A STATE
PROCEEDING EXISTS THAT WAS INITIATED BEFORE THE FEDERAL SUIT WAS
FILED.  THE COURT THERE UPHELD A FEDERAL COURT'S INJUNCTION AGAINST
FUTURE STATE PROCEEDINGS WHERE THE INJUNCTION WAS IN AID OF THE FEDERAL
COURT'S JURISDICTION, BUT THE COURT EXPRESSLY EXCEPTED FROM ITS HOLDING
THE CASE WHERE A STATE PROCEEDING EXISTS WHICH WAS PENDING AT THE TIME
FEDERAL JURISDICTION ATTACHED.  SPECIFICALLY, THE COURT STATED, "BUT
THE FEDERAL COURT CANNOT, OF COURSE, INTERFERE IN A CASE WHERE THE
PROCEEDINGS WERE ALREADY PENDING IN A STATE COURT."  209 U.S.,AT 162. 
THE COURT CITED HARKRADER V. WADLEY, 172 U.S. 148 (1898), IN SUPPORT,
THUS MAKING CLEAR THAT THE RULING WAS INFLUENCED BY THE STATUTORY
PROVISION, FIRST ENACTED IN 1793, PROHIBITING FEDERAL INJUNCTIONS
AGAINST PROCEEDINGS PENDING IN ANY COURT OF A STATE.  THE HISTORY OF
THAT PROVISION, NOW 28 U.S.C. 2283, WAS RECENTLY TRACED IN ATLANTIC
COAST LINE R. CO. V. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, 398 U.S. 281
(1970).  HOWEVER, THE STATUTORY BAR APPLIES ONLY TO PROSECUTIONS BEGUN
BEFORE THE FEDERAL SUIT IS FILED AND DOES NOT PRECLUDE INJUNCTIONS
AGAINST THE INSTITUTION OF FUTURE PROSECUTIONS.  SEE GENERALLY WARREN,
FEDERAL AND STATE COURT INTERFERENCE, 43 HAR.L.REV.  345, 366-378
(1930).  THUS, THE GENERAL RULES THAT FOLLOW FROM EX PARTE YOUNG ARE,
FIRST, THAT WHERE THERE IS NO PENDING STATE PROCEEDING WHEN THE FEDERAL
SUIT IS FILED, A FEDERAL COURT CAN ADJUDICATE CONSTITUTIONAL CLAIMS
AGAINST STATE OFFICIALS AND ISSUE SUCH ORDERS AS ARE NECESSARY TO
PRESERVE ITS JURISDICTION; AND, SECOND, THAT WHERE A STATE PROCEEDING
EXISTS THAT WAS PENDING AT THE TIME SUIT WAS FILED IN FEDERAL COURT THE
FEDERAL COURT SHOULD ORDINARILY DECLINE TO RENDER EITHER DECLARATORY OR
INJUNCTIVE RELIEF.  /9/ 

THESE RULES WERE DEVELOPED FURTHER IN THE LIGHT OF ADDITIONAL
CONSIDERATIONS IN DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965). 
DOMBROWSKI CONFIRMED THE WELL-ESTABLISHED PRINCIPLE THAT CONSTITUTIONAL
DEFENSES TO A STATE CRIMINAL CHARGE MUST BE INITIALLY TESTED IN STATE
RATHER THAN IN FEDERAL COURTS.  SEE DOUGLAS V. CITY OF JEANNETTE, 319
U.S. 157 (1943); CAMERON V. JOHNSON, 390 U.S. 611, 618 (1968); COMPARE
STEFANELLI V. MINARD, 342 U.S. 117 (1951), WITH REA V. UNITED STATES,
350 U.S. 214 (1956).  HOWEVER, DOMBROWSKI ALSO RECOGNIZED THAT
EXCEPTIONAL CIRCUMSTANCES MAY JUSTIFY FEDERAL INTERVENTION WHEN THE
OPPORTUNITY TO RAISE CONSTITUTIONAL DEFENSES AT THE STATE CRIMINAL
TRIAL DOES NOT ASSURE PROTECTION OF THE CONSTITUTIONAL RIGHTS AT
STAKE.  DOMBROWSKI CONSIDERED TWO SITUATIONS IN WHICH "EXCEPTIONAL
CIRCUMSTANCES" CAN EXIST.  FIRST, IF IN ORDER TO DISCOURAGE CONDUCT
PROTECTED BY THE FIRST AMENDMENT OR BY SOME OTHER PROVISION OF THE
CONSTITUTION, /10/  A STATE BRINGS OR THREATENS TO BRING A CRIMINAL
PROSECUTION IN BAD FAITH FOR THE PURPOSE OF HARASSMENT, THE BRINGING OF
THE PROSECUTION OR THE THREAT IS ITSELF A CONSTITUTIONAL DEPRIVATION
SINCE IT SUBJECTS A PERSON TO A BURDEN OF CRIMINAL DEFENSE WHICH HE
SHOULD NOT HAVE TO BEAR, AND THERE THEN EXISTS A SITUATION "IN WHICH
DEFENSE OF THE STATE'S CRIMINAL PROSECUTION WILL NOT ASSURE ADEQUATE
VINDICATION OF CONSTITUTIONAL RIGHTS."  /11/  DOMBROWSKI V. PFISTER,
SUPRA, AT 485; SEE CAMERON V. JOHNSON, SUPRA, AT 621; CF. ACHTENBERG V.
MISSISSIPPI, 393 F.2D 468, 474-475 (CA5 1968).  ACCORDINGLY, IN THIS
CONTEXT A CIVIL SUIT IS AN APPROPRIATE MEANS TO CUT SHORT THE
UNCONSTITUTIONAL STATE PROSECUTION.  THE CIVIL SUIT FOR REMEDIAL RELIEF
MAY APPROPRIATELY BE BROUGHT IN FEDERAL COURT SINCE THE FEDERAL COURTS
ARE THE PRIMARY GUARDIANS OF CONSTITUTIONAL RIGHTS.  ZWICKLER V. KOOTA,
SUPRA.  SECOND, WHERE A CRIMINAL STATUTE PROHIBITS OR SEEMS TO PROHIBIT
CONSTITUTIONALLY PROTECTED CONDUCT, AND TO THAT EXTENT IS
UNCONSTITUTIONALLY VAGUE OR OVERBROAD (A CONTENTION NOT MADE AS TO THE
STATE STATUTE IN THIS CASE), THE OPPORTUNITY TO RAISE CONSTITUTIONAL
DEFENSES AT A CRIMINAL TRIAL IS INADEQUATE TO PROTECT THE UNDERLYING
CONSTITUTIONAL RIGHTS, SINCE IN THAT SITUATION A SUBSTANTIAL NUMBER OF
PEOPLE MAY WELL AVOID THE RISK OF CRIMINAL PROSECUTION BY ABSTAINING
FROM CONDUCT THOUGHT TO BE PROSCRIBED BY THE STATUTE.  EVEN PERSONS
CONFIDENT THAT THEIR CONTEMPLATED CONDUCT WOULD BE HELD TO BE
CONSTITUTIONALLY PROTECTED AND THAT ACCORDINGLY ANY STATE CONVICTION
WOULD BE OVERTURNED MAY BE DETERRED FROM ENGAGING IN SUCH CONDUCT BY
THE PROSPECT OF BECOMING ENMESHED IN PROTRACTED CRIMINAL LITIGATION,
AND BY THE RISK THAT IN THE END, YEARS LATER, THEIR CONFIDENCE WILL
PROVE TO HAVE BEEN MISPLACED AND THEIR RESOURCES WASTED.  THIS
DETERRENCE IS MAGNIFIED BY THE SCOPE THAT VAGUENESS OR OVERBREADTH
GIVES FOR DISCRIMINATORY OR CAPRICIOUS ENFORCEMENT.  FEDERAL
ANTICIPATORY RELIEF IS JUSTIFIED HERE BECAUSE IT IS A PRINCIPAL
FUNCTION OF THE FEDERAL COURTS TO VINDICATE THE CONSTITUTIONAL RIGHTS
OF ALL PERSONS-- THOSE WHO WANT TO OBEY STATE LAWS AS WELL AS THOSE
PREPARED TO DEFY THEM.  /12/  THUS IN DOMBROWSKI WE HELD THAT IN CASES
IN THESE CATEGORIES FEDERAL COURTS MAY PROPERLY INTERVENE IN ORDER TO
ASSURE THE FULL PROTECTION OF FEDERAL CONSTITUTIONAL RIGHTS.  /13/ 

TAKEN TOGETHER, THE PRINCIPLES OF EX PARTE YOUNG AND DOMBROWSKI
ESTABLISH THAT WHETHER A PARTICULAR CASE IS APPROPRIATE FOR FEDERAL
INTERVENTION DEPENDS BOTH ON WHETHER A STATE PROCEEDING IS PENDING AND
ON THE GROUND ASSERTED FOR INTERVENTION.  WHERE THE GROUND IS BAD-FAITH
HARASSMENT, INTERVENTION IS JUSTIFIED WHETHER 8 OR NOT A STATE
PROSECUTION IS PENDING.  INTERVENTION IN SUCH CASES DOES NOT INTERFERE
WITH THE NORMAL GOOD-FAITH ENFORCEMENT OF STATE CRIMINAL LAW BY
CONSTITUTIONAL MEANS, AND DOES NOT NECESSARILY REQUIRE A DECISION ON
THE CONSTITUTIONALITY OF A STATE STATUTE.  IT SIMPLY PREVENTS
PARTICULAR UNCONSTITUTIONAL USE OF THE STATE'S CRIMINAL LAW IN BAD
FAITH AGAINST THE FEDERAL PLAINTIFF.  UNDER DOUGLAS V. CITY OF
JEANNETTE, SUPRA, AT 164, A PERSON HAS NO IMMUNITY FROM A STATE
PROSECUTION "BROUGHT LAWFULLY AND IN GOOD FAITH," BUT HE IS ENTITLED TO
FEDERAL RELIEF FROM A STATE PROSECUTION WHICH AMOUNTS TO BAD-FAITH
HARASSMENT.  /14/ 

THE SITUATION IS DIFFERENT WHERE THE PLAINTIFF SEEKS FEDERAL
INTERVENTION ON THE GROUND THAT A STATE STATUTE IS UNCONSTITUTIONAL,
BUT DOES NOT ALLEGE FACTS SHOWING BAD-FAITH HARASSMENT.  IN CASES OF
THIS SORT, ON WHATEVER PROVISION THE CLAIM OF UNCONSTITUTIONALITY
RESTS, THE JUSTIFICATION FOR INTERVENTION IS THAT INDIVIDUALS SHOULD BE
ABLE TO EXERCISE THEIR CONSTITUTIONAL RIGHTS WITHOUT RUNNING THE RISK
OF BECOMING LAWBREAKERS.  THIS JUSTIFICATION APPLIES WITH FULL FORCE
WHERE THERE IS A CONTINUING LIVE CONTROVERSY AND FEDERAL INTERVENTION
IS SOUGHT WHEN THERE IS NO STATE PROSECUTION IN WHICH THE STATUTE MAY
BE TESTED.  HOWEVER, WHERE FEDERAL INTERVENTION IS SOUGHT AFTER A STATE
PROSECUTION HAS COMMENCED AND WHILE IT IS PENDING, THE INTERESTS
PROTECTED BY FEDERAL INTERVENTION MUST BE WEIGHED AGAINST THE BROAD
COUNTERVAILING PRINCIPLES OF FEDERALISM.  THE PENDING STATE PROCEEDING
ORDINARILY PROVIDES AN EXISTENT, CONCRETE OPPORTUNITY TO SECURE
VINDICATION OF CONSTITUTIONAL CLAIMS IN THE STATE COURTS, WITH ULTIMATE
REVIEW BY THIS COURT.  IN THIS SITUATION COLLATERAL RESORT TO A FEDERAL
COURT WILL NOT SPEED UP THE RESOLUTION OF THE CONTROVERSY SINCE THAT
WILL NOT COME TO AN END IN ANY EVENT UNTIL THE STATE LITIGATION IS
CONCLUDED.  MOREOVER, FEDERAL INTERVENTION MAY DISRUPT THE STATE
PROCEEDING THROUGH THE ISSUANCE OF NECESSARY STAYS OR THE BURDENSOME
NECESSITY FOR THE PARTIES TO PROCEED IN TWO COURTS SIMULTANEOUSLY. 
FEDERAL ADJUDICATION OF THE MATTERS AT ISSUE IN THE STATE PROCEEDING
MAY OTHERWISE BE AN UNWARRANTED AND UNSEEMLY DUPLICATION OF THE STATE'S
OWN ADJUDICATIVE PROCESS.  FOR THESE REASONS, FEDERAL COURTS SHOULD NOT
ORDINARILY INTERVENE BY WAY OF EITHER DECLARATORY OR INJUNCTIVE RELIEF
IN CASES WHERE A STATE COURT PROSECUTION EXISTS THAT BEGAN BEFORE THE
FEDERAL SUIT WAS FILED, AND THE FEDERAL COURT PLAINTIFF ALLEGES ONLY
THAT THE STATE STATUTE BEING APPLIED TO HIM IS UNCONSTITUTIONAL.  CF.
BRILLHART V. EXCESS INS. CO., 316 U.S. 491, 494-495 (1942); WRIGHT,
SUPRA, AT 205.  THE INTERESTS SERVED BY FEDERAL INTERVENTION IN THAT
CONTEXT ARE PLAINTLY OUTWEIGHED BY THE PRINCIPLES OF COMITY ESSENTIAL
TO OUR FEDERAL SYSTEM. 

WHEN NO STATE PROCEEDING IS PENDING AND FEDERAL INTERVENTION IS
THEREFORE APPROPRIATE, /15/  THE FEDERAL COURT MUST DECIDE WHICH OF THE
REQUESTED FORMS OF RELIEF SHOULD BE GRANTED.  ORDINARILY A DECLARATORY
JUDGMENT WILL BE APPROPRIATE IF THE CASE-OR-CONTROVERSY REQUIREMENTS OF
ARTICLE III ARE MET, IF THE NARROW SPECIAL FACTORS WARRANTING FEDERAL
ABSTENTION ARE ABSENT, AND IF THE DECLARATION WILL SERVE A USEFUL
PURPOSE IN RESOLVING THE DISPUTE.  SEE GENERALLY ZWICKLER V. KOOTA,
SUPRA; GOLDEN V. ZWICKLER, SUPRA.  THIS GENERAL RULE CARRIES OUT THE
UNAMBIGUOUS INTENTION OF CONGRESS EXPRESSED IN THE FEDERAL DECLARATORY
JUDGMENT ACT AND REFLECTED IN THE COMMITTEE REPORTS, SUPRA.  THE
PROPRIETY OF AN INJUNCTION SHOULD BE CONSIDERED SEPARATELY AND IN LIGHT
OF THE TRADITIONAL REQUIREMENTS OF EQUITY JURISPRUDENCE AS APPLIED TO
THE PROTECTION OF CONSTITUTIONAL RIGHTS.  SEE, E.G., DOUGLAS V. CITY OF
JEANNETTE, SUPRA; EX PARTE YOUNG, SUPRA; DOMBROWSKI VPFISTER, SUPRA;
CAMERON V. JOHNSON, SUPRA; ZWICKLER V. KOOTA, SUPRA; SEE ALSO HART &
WECHSLER, SUPRA, AT 862-864. 

IT FOLLOWS THAT THE COURT'S STATEMENT TODAY IN SAMUELS V. MACKELL,
THAT IN CASES WHERE THE STATE CRIMINAL PROSECUTION IS PENDING, "THE
SAME EQUITABLE PRINCIPLES RELEVANT TO THE PROPRIETY OF AN INJUNCTION
MUST BE TAKEN INTO CONSIDERATION . . . IN DETERMINING WHETHER TO ISSUE
A DECLARATORY JUDGMENT, AND THAT WHERE AN INJUNCTION WOULD BE
IMPERMISSIBLE . . . DECLARATORY RELIEF SHOULD ORDINARILY BE DENIED AS
WELL," IS NOT APPLICABLE WHEN DETERMINING WHETHER TO ISSUE A
DECLARATORY JUDGMENT IN A CASE WHERE NO STATE CRIMINAL PROSECUTION IS
PENDING.  ITS APPLICABILITY IS PRECLUDED BY THE NATURE OF THE REMEDY
CREATED BY THE FEDERAL DECLARATORY JUDGMENT ACT, AND BY OUR DECISIONS
UNDER THE ACT, CULMINATING IN ZWICKLER V. KOOTA, SUPRA, WHICH ESTABLISH
THAT THE CONSIDERATIONS GOVERNING THE GRANT OF A DECLARATORY JUDGMENT
ARE QUITE DIFFERENT FROM THOSE GOVERNING THE GRANT OF AN INJUNCTION,
EVEN THOUGH BOTH FORMS OF RELIEF ARE DISCRETIONARY AND THUS, IN THE
BROAD SENSE OF THE TERM, "EQUITABLE" IN NATURE.  THE APPLICATION OF THE
MACKELL STATEMENT WHEN NO CRIMINAL PROSECUTION IS PENDING WOULD RUN
COUNTER TO OUR DECISION THIS TERM IN WISCONSIN V. CONSTANTINEAU, 400
U.S. 433, DECIDED JANUARY 19, 1971, WHERE WE FLATLY REJECTED THE
PROPOSITION THAT FEDERAL COURTS SHOULD STAY THEIR HAND UNTIL THE STATE
COURTS HAVE BEEN ASKED TO PASS ON A STATUTE CLEARLY UNCONSTITUTIONAL ON
ITS FACE.  WE THERE SAID: 

    "CONGRESS COULD OF COURSE HAVE ROUTED ALL FEDERAL

CONSTITUTIONAL QUESTIONS THROUGH THE STATE COURT SYSTEMS, SAVING

  TO THIS COURT THE FINAL SAY WHEN IT CAME TO REVIEW OF THE STATE

  COURT JUDGMENTS.  BUT OUR FIRST CONGRESS (IN THE FIRST JUDICIARY

  ACT, 1 STAT. 73) RESOLVED DIFFERENTLY AND CREATED THE FEDERAL

  COURT SYSTEM AND IN TIME GRANTED THE FEDERAL COURTS VARIOUS HEADS

  OF JURISDICTION, WHICH TODAY INVOLVE MOST FEDERAL CONSTITUTIONAL

  RIGHTS . . . 

     " . . . WE WOULD NEGATE THE HISTORY OF THE ENLARGEMENT OF THE

  JURISDICTION OF THE FEDERAL DISTRICT COURTS, IF WE HELD THE

  FEDERAL COURT SHOULD STAY ITS HAND AND NOT DECIDE THE QUESTION

  BEFORE THE STATE COURTS DECIDED IT."  400 U.S.,AT 437-438, 439. 

MOREOVER, THE PREREQUISITES FOR INJUNCTIVE AND DECLARATORY RELIEF
ARE DIFFERENT.  THE AVAILABILITY OF AN ALTERNATIVE ADEQUATE LEGAL
REMEDY ORDINARILY BARS AN INJUNCTION, BUT DOES NOT BAR DECLARATORY
RELIEF, SEE FED. RULE CIV. PROC. 57, UNLESS THE ALTERNATIVE REMEDY WAS
EXPRESSLY CREATED BY STATUTE.  SEE KATZENBACH V. MCCLUNG, 379 U.S. 294,
295-296 (1964).  SIMILARLY, IRREPARABLE INJURY MUST BE SHOWN IN A SUIT
FOR AN INJUNCTION, BUT NOT IN AN ACTION FOR DECLARATORY RELIEF.  AETNA
LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 241 (1937).  OF COURSE, NEITHER
REMEDY MAY BE AFFORDED IN THE ABSENCE OF A LIVE CONTROVERSY.  UNITED
STATES V. ALASKA S.S. CO., 253 U.S. 113 (1920); MARYLAND CASUALTY CO.
V. PACIFIC COAL & OIL CO., 312 U.S. 270, 273 (1941); ZWICKLER V. KOOTA,
SUPRA, AT 244 N. 3.  HOWEVER, THE EXISTENCE OF AN ACTUAL CONTROVERSY
AND THE ADEQUACY OF DECLARATORY RELIEF TO RESOLVE IT ARE ISSUES OFTEN
PRESENTING PARTICULAR DIFFICULTY IN DECLARATORY JUDGMENT ACTIONS, AND
IT IS TO THESE ISSUES THAT JUDICIAL DISCRETION IN SUCH ACTIONS IS
PRIMARILY DIRECTED.  SEE PUBLIC SERVICE COMM'N OF UTAH V. WYCOFF CO.,
344 U.S. 237 (1952). 

THE EFFECTS OF INJUNCTIVE AND DECLARATORY RELIEF IN THEIR IMPACT ON
THE ADMINISTRATION OF A STATE'S CRIMINAL LAWS ARE VERY DIFFERENT.  SEE
GENERALLY KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, 152-155 (1963). 
AN INJUNCTION BARRING INFORCEMENT OF A CRIMINAL STATUTE AGAINST
PARTICULAR CONDUCT IMMUNIZES THAT CONDUCT FROM PROSECUTION UNDER THE
STATUTE.  A BROAD INJUNCTION AGAINST ALL ENFORCEMENT OF A STATUTE
PARALYZES THE STATE'S ENFORCEMENT MACHINERY:  THE STATUTE IS RENDERED A
NULLITY.  A DECLARATORY JUDGMENT, ON THE OTHER HAND, IS MERELY A
DECLARATION OF LEGAL STATUS AND RIGHTS; IT NEITHER MANDATES NOR
PROHIBITS STATE ACTION.  SEE FLEMMING V. NESTOR, 363 U.S. 603, 607
(1960); CURRIE, THE THREE-JUDGE DISTRICT COURT IN CONSTITUTIONAL
LITIGATION, 32 U.CHI.L.REV.  1, 15-16 (1964). 

OF COURSE, A FAVORABLE DECLARATORY JUDGMENT MAY NEVERTHELESS BE
VALUABLE TO THE PLAINTIFF THOUGH IT CANNOT MAKE EVEN AN
UNCONSTITUTIONAL STATUTE DISAPPEAR.  A STATE STATUTE MAY BE DECLARED
UNCONSTITUTIONAL IN TOTO-- THAT IS, INCAPABLE OF HAVING CONSTITUTIONAL
APPLICATIONS; OR IT MAY BE DECLARED UNCONSTITUTIONALLY VAGUE OR
OVERBROAD-- THAT IS, INCAPABLE OF BEING CONSTITUTIONALLY APPLIED TO THE
FULL EXTENT OF ITS PURPORT.  IN EITHER CASE, A FEDERAL DECLARATION OF
UNCONSTITUTIONALITY REFLECTS THE OPINION OF THE FEDERAL COURT THAT THE
STATUTE CANNOT BE FULLY ENFORCED.  IF A DECLARATION OF TOTAL
UNCONSTITUTIONALITY IS AFFIRMED BY THIS COURT, IT FOLLOWS THAT THIS
COURT STANDS READY TO REVERSE ANY CONVICTION UNDER THE STATUTE.  IF A
DECLARATION OF PARTIAL UNCONSTITUTIONALITY IS AFFIRMED BY THIS COURT,
THE IMPLICATION IS THAT THIS COURT WILL OVERTURN PARTICULAR
APPLICATIONS OF THE STATUTE, BUT THAT IF THE STATUTE IS NARROWLY
CONSTRUED BY THE STATE COURTS IT WILL NOT BE INCAPABLE OF
CONSTITUTIONAL APPLICATIONS.  ACCORDINGLY, THE DECLARATION DOES NOT
NECESSARILY BAR PROSECUTIONS UNDER THE STATUTE, AS A BROAD INJUNCTION
WOULD.  THUS, WHERE THE HIGHEST COURT OF A STATE HAS HAD AN OPPORTUNITY
TO GIVE A STATUTE REGULATING EXPRESSION A NARROWING OR CLARIFYING
CONSTRUCTION BUT HAS FAILED TO DO SO, AND LATER A FEDERAL COURT
DECLARES THE STATUTE UNCONSTITUTIONALLY VAGUE OR OVERBROAD, IT MAY WELL
BE OPEN TO A STATE PROSECUTOR, AFTER THE FEDERAL COURT DECISION, TO
BRING A PROSECUTION UNDER THE STATUTE IF HE REASONABLY BELIEVES THAT
THE DEFENDANT'S CONDUCT IS NOT CONSTITUTIONALLY PROTECTED AND THAT THE
STATE COURTS MAY GIVE THE STATUTE A CONSTRUCTION SO AS TO YIELD A
CONSTITUTIONALLY VALID CONVICTION.  EVEN WHERE A DECLARATION OF
UNCONSTITUTIONALITY IS NOT REVIEWED BY THIS COURT, THE DECLARATION MAY
STILL BE ABLE TO CUT DOWN THE DETERRENT EFFECT OF AN UNCONSTITUTIONAL
STATE STATUTE.  THE PERSUASIVE FORCE OF THE COURT'S OPINION AND
JUDGMENT MAY LEAD STATE PROSECUTORS, COURTS, AND LEGISLATORS TO
RECONSIDER THEIR RESPECTIVE RESPONSIBILITIES TOWARD THE STATUTE. 
ENFORCEMENT POLICIES OR JUDICIAL CONSTRUCTION MAY BE CHANGED, OR THE
LEGISLATURE MAY REPEAL THE STATUTE AND START ANEW.  FINALLY, THE
FEDERAL COURT JUDGMENT MAY HAVE SOME RES JUDICATA EFFECT, THOUGH THIS
POINT IS NOT FREE FROM DIFFICULTY AND THE GOVERNING RULES REMAIN TO BE
DEVELOPED WITH A VIEW TO THE PROPER WORKINGS OF A FEDERAL SYSTEM.  /16/
WHAT IS CLEAR, HOWEVER, IS THAT EVEN THOUGH A DECLARATORY JUDGMENT HAS
"THE FORCE AND EFFECT OF A FINAL JUDGMENT," 28 U.S.C. 2201, IT IS A
MUCH MILDER FORM OF RELIEF THAN AN INJUNCTION.  THOUGH IT MAY BE
PERSUASIVE, IT IS NOT ULTIMATELY COERCIVE; NONCOMPLIANCE WITH IT MAY BE
INAPPROPRIATE, BUT IS NOT CONTEMPT. 

THE COURT'S OPINION IN ZWICKLER V. KOOTA CONFIRMED THAT THE
CONSIDERATIONS GOVERNING THE GRANT OF THE TWO REMEDIES ARE QUITE
DIFFERENT.  ZWICKLER V. KOOTA DISTINGUISHED THE PRAYER FOR INJUNCTION
FROM THE PRAYER FOR DECLARATORY RELIEF AND HELD SQUARELY THAT THE
DISTRICT COURT ERRED IN DENYING DECLARATORY RELIEF ON THE GROUND THAT
THERE WAS NO "SHOWING . . . OF 'SPECIAL CIRCUMSTANCES TO JUSTIFY . . .
' INJUNCTIVE RELIEF."  389 U.S., AT 253-254.  THE COURT EXPRESSLY HELD
THAT "A REQUEST FOR A DECLARATORY JUDGMENT THAT A STATE STATUTE IS
OVERBROAD ON ITS FACE MUST BE CONSIDERED INDEPENDENTLY OF ANY REQUEST
FOR INJUNCTIVE RELIEF AGAINST THE ENFORCEMENT OF THAT STATUTE.  WE HOLD
THAT A FEDERAL DISTRICT COURT HAS THE DUTY TO DECIDE THE
APPROPRIATENESS AND THE MERITS OF THE DECLARATORY REQUEST IRRESPECTIVE
OF ITS CONCLUSION AS TO THE PROPRIETY OF THE ISSUANCE OF THE
INJUNCTION."  ID., AT 254.  SEE ALSO MALONE V. EMMET, 278 F.SUPP.  193
(MD ALA. 1967). 

GREAT LAKES CO. V. HUFFMAN, 319 U.S. 293 (1943), IS NOT CONTRARY TO
MY CONCLUSION.  THAT CASE WAS AN ACTION BY EMPLOYERS FOR A DECLARATION
THAT A STATE UNEMPLOYMENT COMPENSATION SCHEME WHICH IMPOSED A TAX UPON
THEM WAS UNCONSTITUTIONAL.  CONGRESS HAS ALWAYS TREATED JUDICIAL
INTERFERENCE WITH THE ENFORCEMENT OF TAX LAWS AS A SUBJECT GOVERNED BY
UNIQUE CONSIDERATIONS, AND THIS COURT HAS CONSISTENTLY ENFORCED THE
CONGRESSIONAL COMMAND THAT "(THE DISTRICT COURTS SHALL NOT ENJOIN,
SUSPEND OR RESTRAIN THE ASSESSMENT, LEVY OR COLLECTION OF ANY TAX UNDER
STATE LAW WHERE A PLAIN, SPEEDY AND EFFICIENT REMEDY MAY BE HAD IN THE
COURTS OF SUCH STATE."  28 U.S.C. 1341.  THIS COURT, WITHOUT RELYING ON
THE PARTICULAR TERMS OF THE STATUTE, HAS TAKEN ITS UNDERLYING POLICY TO
REQUIRE THAT FEDERAL COURTS STAY COMPLETELY OUT OF THE FIELD OF
ANTICIPATORY ADJUDICATION OF TAX CASES SO LONG AS AN ADEQUATE REMEDY IS
OTHERWISE AVAILABLE.  IN GREAT LAKES "WE HELD THAT DECLARATORY RELIEF
THAT A STATE TAX WAS UNCONSTITUTIONAL SHOULD BE DENIED BY THE FEDERAL
COURT.  THE BASIS OF OUR RULING WAS THAT SINCE CONGRESS HAD PROHIBITED
THE FEDERAL COURTS FROM ENJOINING STATE TAXES WHERE AN ADEQUATE REMEDY
WAS AVAILABLE IN THE STATE COURTS, DECLARATORY RELIEF SHOULD ALSO BE
WITHHELD."  PUBLIC SERVICE COMM'N OF UTAH V. WYCOFF CO., 344 U.S. 237,
253 (1952) (DOUGLAS, J., DISSENTING) (CITATION OMITTED).  THUS GREAT
LAKES ADHERED TO THE CONGRESSIONAL RECOGNITION OF THE UNIQUE
CONSIDERATIONS PRESENTED BY ANTICIPATORY TAX LITIGATION.  IBID.  AS THE
STATUTES BARRING ANTICIPATORY RELIEF IN FEDERAL TAX CASES, 26 U.S.C.
7421 (1964 ED., SUPP. V); 28 U.S.C. 2201 (EXPRESS EXCEPTION FOR FEDERAL
TAXES), MAKE ENTIRELY CLEAR, THE UNIQUE CONSIDERATIONS THAT WERE THE
BASIS OF GREAT LAKES RELATE NOT SO MUCH TO CONSIDERATIONS OF FEDERALISM
AS TO THE PECULIAR NEEDS OF TAX ADMINISTRATION.  /17/  CF. AGRICULTURE
ADJUSTMENT ACT AMENDMENTS OF 1935, SEC. 30, 49 STAT. 770, AMENDING ACT
OF MAY 12, 1933, 48 STAT. 31 (7 U.S.C. 623(A)).  IN CONTRAST, THERE IS
NO STATUTORY COUNTERPART OF 28 U.S.C. 1341 APPLICABLE TO INTERVENTION
IN STATE CRIMINAL PROSECUTIONS.  /18/ 

OF COURSE, THE GRANT OR DENIAL OF A DECLARATORY JUDGMENT IS A MATTER
OF SOUND JUDICIAL DISCRETION.  THE STANDARDS FOR THE EXERCISE OF THIS
DISCRETION HAVE BEEN ARTICULATED IN AETNA LIFE INS. CO. V. HAWORTH,
SUPRA; PUBLIC SERVICE COMM'N OF UTAH V. WYCOFF CO., SUPRA, AND IN
ZWICKLER V. KOOTA, SUPRA; SEE SUPRA, AT 120-126.  WHERE A FEDERAL COURT
IS ASKED TO DECLARE THE VALIDITY OR INVALIDITY OF A STATE STATUTE, THIS
DISCRETION IS TO BE EXERCISED "IN THE LIGHT OF THE RELATIONS EXISTING,
UNDER OUR SYSTEM OF GOVERNMENT, BETWEEN THE JUDICIAL TRIBUNALS OF THE
UNION AND OF THE STATES, AND IN RECOGNITION OF THE FACT THAT THE PUBLIC
GOOD REQUIRES THAT THOSE RELATIONS BE NOT DISTURBED BY UNNECESSARY
CONFLICT BETWEEN COURTS EQUALLY BOUND TO GUARD AND PROTECT RIGHTS
SECURED BY THE CONSTITUTION."  EX PARTE ROYALL, 117 U.S. 241, 251
(1886).  HOWEVER, AS THE COURT SAID IN ZWICKLER V. KOOTA: 

"CONGRESS IMPOSED THE DUTY UPON ALL LEVELS OF THE FEDERAL JUDICIARY
TO GIVE DUE RESPECT TO A SUITOR'S CHOICE OF A FEDERAL FORUM FOR THE
HEARING AND DECISION OF HIS FEDERAL CONSTITUTIONAL CLAIMS.  PLAINLY,
ESCAPE FROM THAT DUTY IS NOT PERMISSIBLE MERELY BECAUSE STATE COURTS
ALSO HAVE THE SOLEMN RESPONSIBILITY, EQUALLY WITH THE FEDERAL COURTS, '
. . . TO GUARD, ENFORCE, AND PROTECT EVERY RIGHT GRANTED OR SECURED BY
THE CONSTITUTION OF THE UNITED STATES . . . ,' ROBB V. CONNOLLY, 111
U.S. 624, 637 . . . THE JUDGE-MADE DOCTRINE OF ABSTENTION, FIRST
FASHIONED IN 1941 . . . SANCTIONS SUCH ESCAPE ONLY IN NARROWLY LIMITED
'SPECIAL CIRCUMSTANCES.'  PROPPER V. CLARK, 337 U.S. 472, 492."  389
U.S.,AT 248.  THUS, WHERE NO CRIMINAL PROSECUTION INVOLVING THE FEDERAL
COURT PARTIES IS PENDING WHEN FEDERAL JURISDICTION ATTACHES,
DECLARATORY RELIEF DETERMINING THE DISPUTED CONSTITUTIONAL ISSUE WILL
ORDINARILY BE APPROPRIATE TO CARRY OUT THE PURPOSES OF THE FEDERAL
DECLARATORY JUDGMENT ACT AND TO VINDICATE THE GREAT PROTECTIONS OF THE
CONSTITUTION.     I CONCLUDE THAT THE THREE-JUDGE COURT PROPERLY
EXERCISED ITS DISCRETION IN ISSUING A DECLARATORY JUDGMENT UPON THE
CONSTITUTIONALITY OF ST. BERNARD PARISH ORDINANCE NO. 21-60.  I ALSO
AGREE WITH THE DISTRICT COURT THAT THE ORDINANCE IS UNCONSTITUTIONAL ON
ITS FACE BECAUSE "MORTALLY INFECTED WITH THE VICE OF VAGUENESS."  304
F.SUPP.,AT 670.  APPELLANTS DO NOT ASSERT THE CONTRARY. 

PARAGRAPHS 1 AND 2 OF THE JUDGMENT ENTERED AUGUST 14, 1969, SHOULD
BE REVERSED AND THE JUDGMENT IN ALL OTHER RESPECTS SHOULD BE AFFIRMED. 

/1/  THE FULL TEXT OF 28 U.S.C. 1253 IS AS FOLLOWS: 

"EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO THE
SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION,
SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

/2/  FOR A CONTRARY VIEW TO THAT OF THIS THREE-JUDGE COURT AS TO THE
NECESSITY OF A HEARING PRIOR TO AN ARREST FOR OBSCENITY, SEE MILKY WAY
PRODUCTIONS V. LEARY, 305 F.SUPP.  288, 295-297 (SDNY 1969), AFF'D, 397
U.S. 98 (1970). 

/3/  FLAST V. COHEN, 392 U.S. 83, 88-91 (1968); ZEMEL V. RUSK, 381
U.S. 1, 5-7 (1965); UNITED STATES V. GEORGIA PUB. SERV. COMM'N, 371
U.S. 285, 287-288 (1963); FLORIDA LIME GROWERS V. JACOBSEN, 362 U.S.
73, 75-85 (1960); MILKY WAY PRODUCTIONS V. LEARY, 305 F.SUPP.,AT 295. 

/4/  DESPITE THE ORDER TO RETURN THE SEIZED MATERIALS, APPELLANTS
WERE NOT WITHOUT EVIDENCE ON WHICH TO PROSECUTE APPELLEE LEDESMA.  THE
EVIDENCE OBTAINED ON THE NIGHT OF JANUARY 27, 1969, WAS NOT JUST THE
SEIZED MATERIALS.  THE PARTIES STIPULATED AT THE HEARING BEFORE THE
THREE-JUDGE COURT THAT IMMEDIATELY BEFORE A SHERIFF'S OFFICER ARRESTED
LEDESMA, THE OFFICER PURCHASED TWO ALLEGEDLY OBSCENE MAGAZINES FROM
LEDESMA, AND THAT ANOTHER OFFICER PURCHASED TWO OTHER AND DIFFERENT
PUBLICATIONS FROM HIM.  THE DISTRICT COURT EXPRESSLY EXCEPTED THESE
PURCHASED PUBLICATIONS FROM THOSE ORDERED RETURNED, SAYING, "OF COURSE,
(APPELLANTS) CANNOT BE ORDERED TO RETURN THE PURCHASED MATERIALS, AS IN
THE INSTANCE OF THOSE SEIZED, SINCE TITLE THERETO HAS PASSED."  304
F.SUPP.,AT 667 N. 22. 

/5/  THE THREE-JUDGE COURT ACT OF 1910 ORIGINALLY APPLIED ONLY TO
INTERLOCUTORY INJUNCTIONS AGAINST ENFORCEMENT OF STATE STATUTES.  SEE
SEC. 17, 36 STAT. 557.  A 1913 AMENDMENT EXTENDED THE REQUIREMENTS TO
INTERLOCUTORY INJUNCTIONS AGAINST ENFORCEMENT OF STATE ADMINISTRATIVE
ORDERS.  ACT OF MARCH 4, 1913, C. 160, 37 STAT. 1013.  THE JUDICIARY
ACT OF 1925 EXTENDED THE THREE-JUDGE REQUIREMENT TO PERMANENT
INJUNCTIONS.  43 STAT. 938.  HOWEVER, IN SMITH V. WILSON, 273 U.S. 388
(1927), IT WAS HELD THAT THE THREE-JUDGE REQUIREMENT APPLIED ONLY WHERE
THE APPLICATION FOR A PERMANENT INJUNCTION WAS COUPLED WITH AN
APPLICATION FOR AN INTERLOCUTORY INJUNCTION.  THE 1948 REVISION OF THE
STATUTE MADE THE THREE-JUDGE REQUIREMENT APPLICABLE TO REQUESTS FOR
EITHER INTERLOCUTORY OR PERMANENT RELIEF, WHETHER OR NOT THE OTHER FORM
OF RELIEF WAS SOUGHT.  ACT OF JUNE 25, 1948, 62 STAT. 968. 

/6/  IN 1913 CONGRESS DEALT WITH ANOTHER MAJOR DEFECT IN THE FEDERAL
INJUNCTION PROCEDURE.  INJUNCTION SUITS WERE COMMONLY INSTITUTED IN
FEDERAL COURT SHORTLY AFTER THE ENACTMENT OF COMPLEX STATE REGULATORY
MEASURES AND PRIOR TO THEIR CONSTRUCTION BY THE STATE COURTS.  THE
RESULT WAS THAT IN ONE CASE A FEDERAL COURT GAVE AN INITIAL
CONSTRUCTION TO THE STATE STATUTE AND THEN, ON THE BASIS OF THAT
CONSTRUCTION, ADJUDICATED ITS CONSTITUTIONALITY, THEREBY EXCLUDING THE
STATE COURTS ALTOGETHER.  SEE GENERALLY LOCKWOOD, MAW, & ROSENBERRY,
THE USE OF THE FEDERAL INJUNCTION IN CONSTITUTIONAL LITIGATION, 43
HARV.L.REV.  426, 428-429 (1930).  THE REMEDY PROVIDED BY CONGRESS, 37
STAT. 1013, IS CURRENTLY CODIFIED IN 28 U.S.C. 2284, WHICH PROVIDES IN
PERTINENT PART: 

"A DISTRICT COURT OF THREE JUDGES SHALL, BEFORE FINAL HEARING, STAY
ANY ACTION PENDING THEREIN TO ENJOIN, SUSPEND OR RESTRAIN THE
ENFORCEMENT OR EXECUTION OF A STATE STATUTE OR ORDER THEREUNDER,
WHENEVER IT APPEARS THAT A STATE COURT OF COMPETENT JURISDICTION HAS
STAYED PROCEEDINGS UNDER SUCH STATUTE OR ORDER PENDING THE
DETERMINATION IN SUCH STATE COURT OF AN ACTION TO ENFORCE THE SAME.  IF
THE ACTION IN THE STATE COURT IS NOT PROSECUTED DILIGENTLY AND IN GOOD
FAITH, THE DISTRICT COURT OF THREE JUDGES MAY VACATE ITS STAY AFTER
HEARING UPON TEN DAYS NOTICE SERVED UPON THE ATTORNEY GENERAL OF THE
STATE." 

THE STATUTE HAS PROVED LARGELY INEFFECTUAL PRINCIPALLY BECAUSE OF
THE STAY REQUIREMENT, WHICH PROTECTS THE CONSTITUTIONAL INTERESTS OF
THE FEDERAL COURT PLAINTIFFS.  SEE HART & WECHSLER, SUPRA, AT 854-855;
HUTCHESON, SUPRA, AT 822-823; LOCKWOOD, MAW, & ROSENBERRY, SUPRA, AT
452-453.  HOWEVER, IN CASES WHERE CONSTRUCTION OF COMPLEX STATE
REGULATORY LAW IS CRITICAL TO A CONSTITUTIONAL DECISION, THE FEDERAL
COURTS HAVE DEVELOPED THEIR OWN TECHNIQUES FOR SECURING STATE COURT
CONSIDERATION OF ISSUES OF STATE LAW.  SEE, E.G., PRENTIS V. ATLANTIC
COAST LINE CO., 211 U.S. 210 (1908); RAILROAD COMM'N OF TEXAS V.
PULLMAN CO., 312 U.S. 496 (1941).  THE NARROW SCOPE OF THE DOCTRINE OF
FEDERAL ABSTENTION WAS DELINEATED IN ZWICKLER V. KOOTA, 389 U.S. 241
(1967).  SEE ALSO ALI, STUDY OF THE DIVISION OF JURISDICTION BETWEEN
STATE AND FEDERAL COURTS SEC. 1371, PP. 282-298 (1969); NOTE, FEDERAL
QUESTION ABSTENTION:  JUSTICE FRANKFURTER'S DOCTRINE IN AN ACTIVIST
ERA, 80 HARV.L.REV.  604 (1967). 

/7/  THE AMERICAN LAW INSTITUTE, IN COMMENTS IN CONNECTION WITH ITS
PROPOSED CODIFICATION OF THE ABSTENTION DOCTRINE, OBSERVES:  "SUITS IN
WHICH IT IS CLAIMED THAT STATE LEGISLATIVE OR ADMININSTRATIVE ACTION IS
INVALID BECAUSE CONTRARY TO CONTROLLING FEDERAL LAW PRESENT AN
ESPECIALLY APPEALING CASE FOR ORIGINAL FEDERAL JURISDICTION.  THE
DANGER OF STATE COURT HOSTILITY TO THE FEDERAL CLAIM IS GREATEST IN
SUCH SUITS.  JURISDICTION OF THE FEDERAL COURTS TO HEAR SUCH CASES HAS
BEEN ESTABLISHED AT LEAST SINCE EX PARTE YOUNG, AND IT HAS BEEN RIGHTLY
OBSERVED BY A DISTINGUISHED JUDGE THAT 'THE AUTHORITY AND FINALITY OF
EX PARTE YOUNG CAN HARDLY BE OVERESTIMATED.'  HUTCHESON, A CASE FOR
THREE JUDGES, 47 HARV.L.REV.  795, 799 N. 9 (1934)."  (CITATION
OMITTED.)  ALI, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND
FEDERAL COURTS 282 (1969). 

/8/  AFTER CONGRESS ACCEPTED THE BASIC PRINCIPLES OF EX PARTE YOUNG,
THIS COURT PROMULGATED NEW RULES OF PRACTICE FOR FEDERAL EQUITY, WHICH
REMOVED MANY OF THE OBJECTIONS TO EQUITY PROCEDURE.  SEE 226 U.S. 627
(1912), AND IN PARTICULAR RULE 73, 226 U.S.,AT 670. 

/9/  I PUT TO ONE SIDE THE QUESTION NOT PRESENTED IN EX PARTE YOUNG,
OR IN THIS CASE, WHETHER FEDERAL COURT RELIEF WOULD BE PROPER WHEN A
STATE PROSECUTION PENDING AT THE TIME OF THE FEDERAL HEARING WAS BEGUN
AFTER THE FEDERAL SUIT WAS FILED. 

/10/  DECLARATORY RELIEF SHOULD BE AVAILABLE, WHETHER THE CONDUCT
INHIBITED IS EXPRESSIVE OR OTHER CONDUCT ALLEGED TO BE PROTECTED BY THE
CONSTITUTION.  OF COURSE, THE SPECIAL SENSITIVITY AND IMPORTANCE OF
FIRST AMENDMENTS RIGHTS (THEIR SENSITIVITY TO "CHILLING") IS A
NECESSARY CONSIDERATION IN EVALUATING THE CLAIM OF INHIBITION.  THE
DETERRENCE EMANATING FROM THE EXISTENCE OF A STATUTE PURPORTING TO
PROHIBIT CONSTITUTIONALLY PROTECTED EXPRESSION IS ITSELF PLAINTLY
INCONSISTENT WITH THE FIRST AMENDMENT, ZWICKLER V. KOOTA, 389 U.S. 241,
252 (1967); BAGGETT V. BULLITT, 377 U.S. 360 (1964), WHICH WAS INTENDED
TO PROTECT VIGOROUS, ROBUST, AND UNPOPULAR SPEECH WITHOUT A THREAT OF
PUNISHMENT UNDER STATE LAW.  SEE, E.G., WHITNEY V. CALIFORNIA, 274 U.S.
357, 375-376 (1927) (BRANDEIS, J., CONCURRING); STROMBERG V.
CALIFORNIA, 283 U.S. 359, 369 (1931); ROTH V. UNITED STATES, 354 U.S.
476, 484 (1957); NAACP V. BUTTON, 371 U.S. 415, 429 (1963); NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964). 

/11/  BAD-FAITH HARASSMENT CAN, OF COURSE, TAKE MANY FORMS,
INCLUDING ARRESTS AND PROSECUTIONS UNDER VALID STATUTES WHERE THERE IS
NO REASONABLE HOPE OF OBTAINING A CONVICTION, SEE, EG.G., CAMERON V.
JOHNSON, SUPRA, AT 621, AND A PATTERN OF DISCRIMINATORY ENFORCEMENT
DESIGNED TO INHIBIT THE EXERCISE OF FEDERAL RIGHTS, SEE, E.G., BAILEY
V. PATTERSON, 323 F.2D 201 (CA5 1963).  CF. ALI, STUDY OF THE DIVISION
OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS SEC. 1372(7), PP. 308
310 (1969). 

/12/  THE FEDERAL DECLARATORY JUDGMENT IS NOT A PRIZE TO THE WINNER
OF A RACE TO THE COURTHOUSES, BUT RATHER A DECLARATION OF RIGHTS THAT
OBVIATES THE NEED TO RISK A STATE CRIMINAL PROCEEDING OR A RACE TO THE
COURTHOUSES.  WITHIN THE LIMITS OF ART. III, SEE GOLDEN V. ZWICKLER,
394 U.S. 103 (1969), DOCTRINES OF RIPENESS SHOULD BE SO FASHIONED AS TO
GIVE ADEQUATE ROOM FOR THIS KIND OF RELIEF. 

/13/  TITLE 28 U.S.C. 1343 IS AN INDEPENDENT BASIS OF FEDERAL
JURISDICTION WHERE THE PLAINTIFF SEEKS VINDICATION OF CONSTITUTIONAL
RIGHTS; AND, WHERE THIS PROVISION IS INVOKED TOGETHER WITH 42 U.S.C.
1983, EXHAUSTION OF STATE REMEDIES IS NOT REQUIRED.  MCNEESE V. BOARD
OF EDUCATION, 373 U.S. 668 (1963).  FEDERAL COURT ABSTENTION IS
PARTICULARLY INAPPROPRIATE IN CASES BROUGHT UNDER THE STATUTES DESIGNED
SPECIFICALLY TO AUTHORIZE FEDERAL PROTECTION OF CIVIL RIGHTS.  AS
PROFESSOR WECHSLER HAS STATED, "THERE CONGRESS HAS DECLARED THE
HISTORIC JUDGMENT THAT WITHIN THIS PRECIOUS AREA . . . THERE IS TO BE
NO SLIGHTEST RISK OF NULLIFICATION BY STATE PROCESS.  THE DANGER IS
UNHAPPILY NOT PAST.  IT WOULD BE MOVING IN THE WRONG DIRECTION TO
REDUCE THE JURISDICTION IN THIS FIELD-- NOT BECAUSE THE INTEREST OF THE
STATE IS SMALLER IN SUCH CASES, BUT BECAUSE ITS INTEREST IS OUTWEIGHED
BY OTHER FACTORS OF THE HIGHEST NATIONAL CONCERN."  WECHSLER, FEDERAL
JURISDICTION AND THE REVISION OF THE JUDICIAL CODE, 13 LAW & CONTEMP. 
PROB.  216, 230 (1948). 

/14/  WHETHER IN THIS CONTEXT 28 U.S.C. 2283 BARS INJUNCTIVE RELIEF
I NEED NOT CONSIDER SINCE THERE IS NO INJUNCTION HERE. 

/15/  I DO NOT CONSIDER HERE THE TYPES OF RELIEF AVAILABLE IN CASES
OF BAD-FAITH HARASSMENT DISCUSSED SUPRA, AT N. 11. 

/16/  THE SENATE REPORT NOTED THAT "(THE DECLARATORY JUDGMENT IS A
FINAL, BINDING JUDGMENT BETWEEN ADVERSARY PARTIES AND CONCLUSIVELY
DETERMINES THEIR RIGHTS."  S. REP. NO. 1005, 73D CONG., 2D SESS., 5
(1934).  BUT IN MY VIEW THE FEDERAL COURT'S DUTY TO RENDER A
DECLARATORY JUDGMENT IS NOT THE LESS WHATEVER MAY BE ITS RES JUDICATA
EFFECT AS BETWEEN THE PARTIES TO THE LITIGATION. 

/17/  "(TAXES ARE THE LIFE-BLOOD OF GOVERNMENT, AND THEIR PROMPT AND
CERTAIN AVAILABILITY AN IMPERIOUS NEED.  TIME OUT OF MIND, THEREFORE,
THE SOVEREIGN HAS RESORTED TO MORE DRASTIC MEANS OF COLLECTION."  BULL
V. UNITED STATES, 295 U.S. 247, 259-260 (1935); SEE ALSO BANK OF
COMMERCE V. TENNESSEE, 161 U.S. 134, 146 (1896).  IN PHILLIPS V.
COMMISSIONER, 283 U.S. 589, 595-596 (1931), MR. JUSTICE RANDESI SAID
FOR THE COURT, "WHERE . . . ADEQUATE OPPORTUNITY IS AFFORDED FOR A
LATER JUDICIAL DETERMINATION OF THE LEGAL RIGHTS, SUMMARY PROCEEDINGS
TO SECURE PROMPT PERFORMANCE OF PECUNIARY OBLIGATIONS TO THE GOVERNMENT
HAVE BEEN CONSISTENTLY SUSTAINED.  PROPERTY RIGHTS MUST YIELD
PROVISIONALLY TO GOVERNMENTAL NEED.  THUS, WHILE PROTECTION OF LIFE AND
LIBERTY FROM ADMINISTRATIVE ACTION ALLEGED TO BE ILLEGAL, MAY BE
OBTAINED PROMPTLY BY THE WRIT OF HABEAS CORPUS, THE STATUTORY
PROHIBITION OF ANY 'SUIT FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT
OR COLLECTION OF ANY TAX' POSTPONES REDRESS FOR THE ALLEGED INVATION OF
PROPERTY RIGHTS . . . " (CITATIONS OMITTED).  CF. MATTHEWS V. RODGERS,
284 U.S. 521, 525-526 (1932).  THE SPECIAL REASONS JUSTIFYING THE
POLICY OF FEDERAL NONINTERFERENCE WITH STATE TAX COLLECTION ARE
OBVIOUS.  THE PROCEDURES FOR MASS ASSESSMENT AND COLLECTION OF STATE
TAXES AND FOR ADMINISTRATION AND ADJUDICATION OF TAXPAYERS' DISPUTES
WITH TAX OFFICIALS ARE GENERALLY COMPLEX AND NECESSARILY DESIGNED TO
OPERATE ACCORDING TO ESTABLISHED RULES.  STATE TAX AGENCIES ARE
ORGANIZED TO DISCHARGE THEIR RESPONSIBILITIES IN ACCORDANCE WITH THE
STATE PROCEDURES.  IF FEDERAL DECLARATORY RELIEF WERE AVAILABLE TO TEST
STATE TAX ASSESSMENTS, STATE TAX ADMINISTRATION MIGHT BE THROWN INTO
DISARRAY, AND TAXPAYERS MIGHT ESCAPE THE ORDINARY PROCEDURAL
REQUIREMENTS IMPOSED BY STATE LAW.  DURING THE PENDENCY OF THE FEDERAL
SUIT THE COLLECTION OF REVENUE UNDER THE CHALLENGED LAW MIGHT BE
OBSTRUCTED, WITH CONSEQUENT DAMAGE TO THE STATE'S BUDGET, AND PERHAPS A
SHIFT TO THE STATE OF THE RISK OF TAXPAYER INSOLVENCY.  MOREOVER,
FEDERAL CONSTITUTIONAL ISSUES ARE LIKELY TO TURN ON QUESTIONS OF STATE
TAX LAW, WHICH, LIKE ISSUES OF STATE REGULATORY LAW, ARE MORE PROPERLY
HEARD IN THE STATE COURTS.  SEE GENERALLY S. REP. NO. 1035, 75TH CONG.,
1ST SESS. (1937).  THESE CONSIDERATIONS MAKE CLEAR THAT THE UNDERLYING
POLICY OF THE ANTI-TAX-INJUNCTION STATUTE, 28 U.S.C. 1341, RELIED ON IN
GREAT LAKES, BARS ALL ANTICIPATORY FEDERAL ADJUDICATION IN THIS FIELD,
NOT MERELY FEDERAL INJUNCTIONS.  VERY DIFFERENT CONSIDERATIONS APPLY IN
THE CONTEXT OF STATE CRIMINAL STATUTES CHALLENGED AS UNCONSTITUTIONAL. 
AT ISSUE ON ONE SIDE ARE FUNDAMENTAL PERSONAL RIGHTS, NOT PROPERTY
RIGHTS.  AT RISK ON THE OTHER IS NOT THE CURRENT FINANCING OF STATE
GOVERNMENT, BUT THE FUTURE ENFORCEMENT OF A PARTICULAR CRIMINAL
STATUTE. 

/18/  TITLE 28 U.S.C. 2283 IS CERTAINLY NOT ANALOGOUS TO THE
PROHIBITION OF FEDERAL ANTICIPATORY RELIEF IN TAX CASES.  THAT STATUTE
APPLIES ONLY WHERE THERE IS A PENDING STATE PROCEEDING, DOMBROWSKI V.
PFISTER, 380 U.S.,AT 484 N. 2, WHEREAS THE PRESENT DISCUSSION CONCERNS
THE PROPRIETY OF FEDERAL RELIEF WHERE NO STATE PROCEEDING IS PENDING. 
MOREOVER, UNLIKE THE TAX STATUTES, SEC. 2283 IS NOT DIRECTED TO ANY
PARTICULAR CLASS OF LITIGATION, CRIMINAL OR OTHERWISE, BUT IS DESIGNED
TO PROTECT THE PROCESS OF ORDERLY STATE COURT ADJUDICATION GENERALLY. 
WHEN CONGRESS HAS WANTED TO PROTECT PARTICULAR CATEGORIES OF STATE
BUSINESS FROM ANTICIPATORY FEDERAL INTERVENTION, IT HAS KNOWN NOT TO
SAY SO.  SEE 28 U.S.C. 1341, 1342.  NO SUCH STATUTE APPLIES TO STATE
CRIMINAL LAW ADMINISTRATION.  FINALLY, THE FEDERAL DECLARATORY JUDGMENT
ACT PLAINTLY EVINCES A CONGRESSIONAL INTENT THAT THE STATUTORY TERM
"INJUNCTION" IN SEC. 2283 NOT BE READ TO INCLUDE DECLARATORY
JUDGMENTS.  AN ANALOGOUS QUESTION WAS BEFORE US RECENTLY IN MITCHELL V.
DONOVAN, 398 U.S. 427 (1970).  THERE WE WERE CALLED ON TO DECIDE
WHETHER AN ORDER OF A THREE-JUDGE COURT GRANTING OR DENYING A
DECLARATORY JUDGMENT MAY BE APPEALED TO THIS COURT UNDER 28 U.S.C.
1253, WHICH PROVIDES THAT WITH CERTAIN EXCEPTIONS "ANY PARTY MAY APPEAL
TO THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING . . . AN . . .
INJUNCTION IN ANY CIVIL ACTION . . . REQUIRED . . . TO BE . . .
DETERMINED BY A DISTRICT COURT OF THREE JUDGES."  THE DIRECT-APPEAL
PROVISION OF SEC. 1253 OBVIOUSLY REFLECTS THE PARTICULAR SENSITIVITY OF
GRANTING OR DENYING AN INJUNCTION IN THOSE IMPORTANT CASES REQUIRED TO
BE HEARD BY THREE-JUDGE COURTS.  SEE GENERALLY CURRIE, THE THREE-JUDGE
DISTRICT COURT IN CONSTITUTIONAL LITIGATION, 32 U.CHI.L.REV.  1
(1964).  THE COURT CLEARLY HAD THOSE CONSIDERATIONS IN MIND WHEN IT
OBSERVED, "WHILE THERE ARE SIMILARITIES BETWEEN INJUNCTIONS AND
DECLARATORY JUDGMENTS, THERE ARE ALSO IMPORTANT DIFFERENCES . . . (THIS
COURT'S JURISDICTION UNDER (SEC. 1253) IS TO BE LITERALLY CONSTRUED . .
. IT WOULD HARDLY BE FAITHFUL TO SUCH A CONSTRUCTION TO READ THE
STATUTORY TERM 'INJUNCTION' AS MEANING 'DECLARATORY JUDGMENT.'"  398
U.S.,AT 430-431. 

        APPENDIX TO OPINION OF BRENNAN, J.

   LOUISIANA REVISED STATUTES ANNOTATED 

SEC. 14.106.  OBSCENITY 

A. OBSCENITY IS THE INTENTIONAL: 

(1) EXPOSURE OF ONE'S PERSON IN A PUBLIC PLACE IN SUCH MANNER THAT
ANY PART OF A SEX ORGAN MAY BE SEEN BY ANOTHER PERSON, WITH THE INTENT
OF AROUSING SEXUAL DESIRE. 

(2) PRODUCTION, SALE, EXHIBITION, GIFT, OR ADVERTISEMENT WITH THE
INTENT TO PRIMARILY APPEAL TO THE PRURIENT INTEREST OF THE AVERAGE
PERSON, OF ANY LEWD, LASCIVIOUS, FILTHY OR SEXUALLY INDECENT WRITTEN
COMPOSITION, PRINTED COMPOSITION, BOOK, MAGAZINE, PAMPHLET, NEWSPAPER,
STORY PAPER, WRITING, PHONOGRAPH RECORD, PICTURE, DRAWING, MOTION
PICTURE FILM, FIGURE, IMAGE, WIRE OR TAPE RECORDING OR ANY WRITTEN,
PRINTED OR RECORDED MATTER OF SEXUALLY INDECENT CHARACTER WHICH MAY OR
MAY NOT REQUIRE MECHANICAL OR OTHER MEANS TO BE TRANSMITTED INTO
AUDITORY, VISUAL OR SENSORY REPRESENTATIONS OF SUCH SEXUALLY INDECENT
CHARACTER. 

(3) POSSESSION WITH THE INTENT TO SELL, EXHIBIT, GIVE OR ADVERTISE
ANY OF THE PORNOGRAPHIC MATERIAL OF THE CHARACTER AS DESCRIBED IN
PARAGRAPH (2) ABOVE, WITH THE INTENT TO PRIMARILY APPEAL TO THE
PRURIENT INTERST OF THE AVERAGE PERSON. 

(4) PERFORMANCE BY ANY PERSON OR PERSONS IN THE PRESENCE OF ANOTHER
PERSON OR PERSONS WITH THE INTENT OF AROUSING SEXUAL DESIRE, OF ANY
LEWD, LASCIVIOUS, SEXUALLY INDECENT DANCING, LEWD, LASCIVIOUS OR
SEXUALLY INDECENT POSING, LEWD, LASCIVIOUS OR SEXUALLY INDECENT BODY
MOVEMENT. 

(5) SOLICITATION OR ATTEMPT TO ENTICE ANY UNMARRIED PERSON UNDER THE
AGE OF SEVENTEEN YEARS TO COMMIT ANY ACT PROHIBITED BY THIS SECTION. 

(6) REQUIREMENT BY A PERSON, AS A CONDITION TO A SALE, ALLOCATION,
CONSIGNMENT OR DELIVERY FOR RESALE OF ANY PAPER, MAGAZINE, BOOK,
PERIODICAL OR PUBLICATION TO A PURCHASER OR CONSIGNEE, THAT SUCH
PURCHASER OR CONSIGNEE RECEIVE FOR RESALE ANY OTHER ARTICLE, BOOK OR
PUBLICATION REASONABLY BELIEVED BY SUCH PURCHASER OR CONSIGNEE TO
CONTAIN ARTICLES OR MATERIAL OF ANY KIND OR DESCRIPTION WHICH ARE
DESIGNED, INTENDED OR REASONABLY CALCULATED TO OR WHICH DO IN FACT
APPEAL TO THE PRURIENT INTERESTS OF THE AVERAGE PERSON IN THE
COMMUNITY, AS JUDGED BY CONTEMPORARY COMMUNITY STANDARDS, OR THE
DENYING OR THREATENING TO DENY ANY FRANCHISE OR TO IMPOSE ANY PENALTY,
FINANCIAL OR OTHERWISE, BY REASON OF THE FAILURE OF ANY PERSON TO
ACCEPT SUCH ARTICLES OR THINGS OR BY REASON OF THE RETURN THEREOF. 

(7) DISPLAY OF NUDE PICTURES OF A MAN, WOMAN, BOY OR GIRL IN ANY
PUBLIC PLACE, EXCEPT AS WORKS OF ART EXHIBITED IN ART GALLERIES. 

B. IN PROSECUTIONS FOR OBSCENITY, LACK OF KNOWLEDGE OF AGE OR MARITAL
STATUS SHALL NOT CONSTITUTE A DEFENSE. 

C. WHOEVER COMMITS THE CRIME OF OBSCENITY SHALL BE FINED NOT LESS
THAN ONE HUNDRED DOLLARS NOR MORE THAN FIVE HUNDRED DOLLARS, OR
IMPRISONED FOR NOT MORE THAN SIX MONTHS, OR BOTH. 

WHEN A VIOLATION OF PARAGRAPHS (1), (2), (3), AND (4) OF SUBSECTION
(A) OF THIS SECTION IS WITH OR IN THE PRESENCE OF AN UNMARRIED PERSON
UNDER THE AGE OF SEVENTEEN YEARS, THE OFFENDER SHALL BE FINED NOT MORE
THAN ONE THOUSAND DOLLARS, OR IMPRISONED FOR NOT MORE THAN FIVE YEARS
WITH OR WITHOUT HARD LABOR, OR BOTH. 

AMENDED BY ACTS 1958, NO. 388, SEC. 1; ACTS 1960, NO. 199, SEC. 1;
ACTS 1962, NO. 87, SEC. 1; ACTS 1968, NO. 647, SEC. 1, EMERG.  EFF. 
JULY 20, 1968, AT 1:30 P.M.

        POLICE JURY

ST. BERNARD PARISH

        ST. BERNARD COURTHOUSE ANNEX

        CHALMETTE, LOUISIANA 

EXTRACT OF THE OFFICIAL PROCEEDINGS OF THE POLICE JURY OF THE PARISH
OF ST. BERNARD, STATE OF LOUISIANA, TAKEN AT THE REGULAR MEETING HELD
IN THE POLICE JURY ROOM OF THE COURTHOUSE ANNEX, AT CHALMETTE,
LOUISIANA, ON NOVEMBER 2, 1960, AT ELEVEN O'CLOCK (11:00) A.M. 

ON MOTION OF CELESTINE MELERINE, SECONDED BY JOSEPH V. PAPANIA AND
UPON RECOMMENDATION OF THE DISTRICT ATTORNEY OF THE PARISH OF ST.
BERNARD, THE FOLLOWING ORDINANCE WAS ADOPTED:

        ORDINANCE NO. 21-60 

AN ORDINANCE KNOWN AS THE ORDINANCE OF ST. BERNARD PARISH, RELATIVE
TO PROHIBITING AND DEFINING THE OFFENSE OF OBSCENITY AND INDECENT
LITERATURE, ADDING THERETO THE OFFENSE OF "ATTEMPT," AND PRESCRIBING
PENALTIES FOR THE VIOLATION THEREOF. 


OFFENSE OF OBSCENITY DEFINED AND PROHIBITED. 


BE IT ORDAINED, BY THE POLICE JURY OF THE PARISH OF ST. BERNARD THAT
OBSCENITY IS PROHIBITED AND IS HEREBY DEFINED AS THE INTENTIONAL 


BE IT FURTHER ORDAINED, THAT PUBLIC PERSONAL EXPOSURE OF THE FEMALE
BREAST OR THE SEXUAL ORGANS OR FUNDAMENT OF ANY PERSON OF EITHER SEX. 


BE IT FURTHER ORDAINED, THAT PRODUCTION, SALES, EXHIBITION,
POSSESSION WITH INTENT TO DISPLAY, OR DISTRIBUTION OF ANY OBSCENE,
LEWD, LASCIVIOUS, PRURIENT OR SEXUALLY INDECENT PRINT, ADVERTISEMENT,
PICTURE, PHOTOGRAPH, WRITTEN OR PRINTED COMPOSITION, MODEL, STATUTE,
INSTRUMENT, MOTION PICTURE, DRAWING, PHONOGRAPH RECORDING, TAPE OR WIRE
RECORDING, OR DEVICE OR MATERIAL OF ANY KIND. 


BE IT FURTHER ORDAINED THAT THE PERFORMANCE OF ANY DANCE, SONG, OR ACT
IN ANY PUBLIC PLACE, OR IN ANY PUBLIC MANNER REPRESENTING OR PORTRAYING
OR REASONABLY CALCULATED TO REPRESENT OR PORTRAY ANY ACT OF SEXUAL
INTERCOURSE BETWEEN MALE AND FEMALE PERSONS, OR ANY ACT OF PERVERSE
SEXUAL INTERCOURSE OR CONTACT, OR UNNATURAL CARNAL COPULATION, BETWEEN
PERSONS OF ANY SEX, OR BETWEEN PERSONS AND ANIMALS. 


OR FURTHER, THE PERFORMANCE IN ANY PUBLIC PLACE, OR ANY PUBLIC
MANNER OF ANY OBSCENE, LEWD, LUSTFUL, LASCIVIOUS, PRURIENT OR SEXUALLY
INDECENT DANCE, OR THE RENDITION OF ANY OBSCENE, LEWD, LUSTFUL,
LASCIVIOUS, PRURIENT OR SEXUALLY INDECENT SONG OR RECITATION. 


BE IT FURTHER ORDAINED, PRODUCTION, POSSESSION WITH INTENT TO
DISPLAY, EXHIBITION, DISTRIBUTION, OR SALE OF ANY LITERATURE AS DEFINED
HEREIN CONTAINING ONE OR MORE PICTURES OF NUDE OR SEMI-NUDE FEMAL
PERSONS, WHEREIN THE FEMALE BREAST OR ANY SEXUAL ORGAN IS SHOWN OR
EXHIBITED, AND WHERE, BECAUSE OF THE NUMBER OR MANNER OF PORTRAYAL IN
WHICH SUCH PICTURES ARE DISPLAYED IN SUCH LITERATURE, THEY ARE DESIGNED
TO APPEAL PREDOMINANTLY TO THE PRURIENT INTEREST. 


BE IT FURTHER ORDAINED, THAT IT SHALL ALSO BE UNLAWFUL FOR ANY
PERSON TO ATTEMPT TO COMMIT ANY OF THE VIOLATIONS SET FORTH IN THIS


BE IT FURTHER ORDAINED, THAT ANY PERSON UPON CONVICTION OF A
VIOLATION OF THIS SECTION SHALL BE SENTENCED TO SERVE NOT MORE THAN
NINETY (90) DAYS, OR PAY A FINE OF NOT MORE THAN ONE HUNDRED DOLLARS
($100.00) OR BOTH, IN THE DISCRETION OF THE COURT. 

BE IT FURTHER ORDAINED, THAT PERSONS CONVICTED OF AN ATTEMPT TO
VIOLATE THIS SECTION SHALL BE SENTENCED TO NOT MORE THAN ONE-HALF OF
THE MAXIMUM PENALTY PRESCRIBED, OR PAY NOT MORE THAN HALF OF THE
MAXIMUM FINE OR BOTH, AS SET FORTH ABOVE. 


BE IT FURTHER ORDAINED, THAT THE WORD LITERATURE AS USED HEREIN
MEANS AND INCLUDES A BOOK, BOOKLET, PAMPHLET, LEAFLET, BROCHURE,
CIRCULAR, FOLDER, HANDBILL OR MAGAZINE.  THE WORD PICTURE AS USED
HEREIN MEANS AND INCLUDES ANY PHOTOGRAPH, LITHOGRAPH, DRAWING, SKETCH,
ABSTRACT, POSTER, PAINTING, FIGURE, IMAGE, SILHOUETTE, REPRESENTATION
OR FACSIMILE. 


BE IT FURTHER ORDAINED, THAT THIS ORDINANCE SHALL BE PUBLISHED IN
THE OFFICIAL JOURNAL OF THE PARISH.  THE ST. BERNARD VOICE. 

THIS ORDINANCE HAVING BEEN SUBMITTED TO A VOTE, THE VOTE THEREON WAS
AS FOLLOWS: 

YEAS: HENRY C. SCHINDLER, JR., JOSEPH V. PAPANIA, PETER N. HUFF,
PETER PERNICIARO, LOUIS P. MUNSTER, JOHN W. BOOTH, SR., CLAUDE S.
MUMPHREY, CELESTINE MELERINE, EDWARD L. JEANFREAU, AND MRS. BLANCHE
MOLERO. 

NAYS:  NONE. 

ABSENT:  NONE. 

AND THE ORDINANCE WAS DECLARED ADOPTED ON THIS, THE 2ND DAY OF
NOVEMBER, 1960. 

              (S) VALENTINE RIESS,

  (VALENTINE RIESS),

              PRESIDENT. 

        (S) JOSEPH E. SORCI,

              (JOSEPH E. SORCI),

              SECRETARY. 

        CERTIFICATE 

I CERTIFY 0THAT THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY
OF AN ORDINANCE ADOPTED BY THE ST. BERNARD PARISH POLICE JURY AT A
REGULAR MEETING HELD AT CHALMETTE, LOUISIANA, IN THE POLICE JURY ROOM
AT THE COURTHOUSE ANNEX ON THE 2ND DAY OF NOVEMBER, 1960. 

WITNESS MY HAND AND THE SEAL OF THE ST. BERNARD PARISH POLICE JURY
THIS 11TH DAY OF FEBRUARY, 1969. 

           (S) R. M. MCDOUGALL,

              (R. M. MCDOUGALL),

              SECRETARY. 

CHARLES H. LIVAUDAIS ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEF WAS ROBERT J. KLEES. 

JACK PEEBLES ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
WERE STANLEY FLEISHMAN AND ROBERT EUGENE SMITH. 
..END :











MAGNESIUM CASTING CO. V. NLRB, 401 U.S. 137 


       MAGNESIUM CASTING CO. V. NATIONAL LABOR RELATIONS BOARD

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT

        NO. 370.  ARGUED JANUARY 18-19, 1971-- DECIDED FEBRUARY 23,

  1971 


FOLLOWING A UNIT DETERMINATION HEARING, THE NATIONAL LABOR RELATIONS
BOARD (NLRB) REGIONAL DIRECTOR CONCLUDED THAT THREE INDIVIDUALS WERE
EMPLOYEES RATHER THAN SUPERVISORS AND THUS INCLUDIBLE IN THE PROPOSED
BARGAINING UNIT AT PETITIONER COMPANY'S PLANT.  THE NLRB DENIED
PETITIONER'S REQUEST FOR REVIEW.  FOLLOWING AN ELECTION, THE REGIONAL
DIRECTOR CERTIFIED THE UNION AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE.  SUBSEQUENTLY, THE NLRB UPHELD A FINDING THAT
PETITIONER'S REFUSAL TO BARGAIN CONSTITUTED AN UNFAIR LABOR PRACTICE. 
PETITIONER MOVED FOR RECONSIDERATION ON THE GROUND THAT THE NLRB WAS
REQUIRED TO GIVE PLENARY REVIEW TO THE REGIONAL DIRECTOR'S
REPRESENTATION DETERMINATION BEFORE ISSUING AN UNFAIR LABOR PRACTICE
ORDER BASED ON THAT DETERMINATION.  THE MOTION WAS DENIED AND THE COURT
OF APPEALS ENFORCED THE NLRB'S ORDER.  HELD:  UNDER SEC. 3(B) OF THE
NATIONAL LABOR RELATIONS ACT THE NLRB IS PERMITTED TO DELEGATE TO THE
REGIONAL DIRECTOR ITS AUTHORITY TO DETERMINE THE APPROPRIATE BARGAINING
UNIT, AND PLENARY REVIEW BY THE NLRB OF SUCH DETERMINATION IS NOT
MANDATORY.  PP. 141-143. 

427 F.2D 114, AFFIRMED. 

DOUGLAS, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

STAT. 139, 73 STAT. 542, 29 U.S.C. 153(B), AUTHORIZES THE NATIONAL
LABOR RELATIONS BOARD TO DELEGATE TO ITS REGIONAL DIRECTORS THE POWER
TO DETERMINE THE UNIT APPROPRIATE FOR COLLECTIVE BARGAINING.  /1/  THE
BOARD ACCORDINGLY ADOPTED RULES DELEGATING TO ITS REGIONAL DIRECTORS
ITS POWERS TO DETERMINE REPRESENTATION ISSUES AND DEFINING THE
CONDITIONS WHEN THE BOARD WILL REVIEW THE DETERMINATION OF A REGIONAL
DIRECTOR.  /2/ 

ON FILING OF A REPRESENTATION PETITION, SEC. 9(C)(1) PROVIDES THAT A
HEARING SHALL BE HELD TO DETERMINE IF A QUESTION OF REPRESENTATION
EXISTS AND, IF SO, THE APPROPRIATE BARGAINING UNIT.  IF AN ELECTION IS
DIRECTED AND THE UNION PREVAILS, IT IS CERTIFIED AS THE EMPLOYEES'
BARGAINING REPRESENTATIVE.  AN EMPLOYER WHO CONTESTS THE ELECTION
INCLUDING THE UNIT DETERMINATION, CAN ONLY OBTAIN COURT REVIEW UNDER
SEC. 10 AFTER AN UNFAIR LABOR PRACTICE CHARGE HAS BEEN MADE AGAINST HIM
BY THE BOARD FOR REFUSING TO BARGAIN COLLECTIVELY "WITH THE
REPRESENTATIVES OF HIS EMPLOYEES" AS PROVIDED IN SEC. 8(A)(5). 

IN THAT REVIEW, HOWEVER, THE DETERMINATION OF THE BARGAINING UNIT BY
THE REGIONAL DIRECTOR NEED NOT BE REVIEWED BY THE BOARD.  WHETHER THE
BOARD REVIEWS THE INITIAL DECISION ON THE MERITS, SEE PITTSBURGH PLATE
GLASS CO. V. NLRB, 313 U.S. 146, 162, OR THE EMPLOYER FILAS TO REQUEST
REVIEW OF THE ACTION OF THE REGIONAL DIRECTOR, OR THE BOARD DENIES A
REQUEST FOR REVIEW, THE BOARD HAS DISCRETION TO REOPEN THE ISSUE WHERE
NEWLY DISCOVERED NONCUMULATIVE EVIDENCE IS AVAILABLE.  /3/ 

THE UNITED STEELWORKERS FILED A PETITION REQUESTING A REPRESENTATION
ELECTION AMONG THE PRODUCTION AND MAINTENANCE EMPLOYEES AT PETITIONER'S
HYDE PARK, MASSACHUSETTS, PLANT.  THE REGIONAL DIRECTOR PROVIDED A
HEARING AND THE ESSENTIAL ISSUES TENDERED CONCERNED FOUR INDIVIDUALS
CLASSIFIED AS "ASSISTANT FOREMEN."  THE QUESTION WAS WHETHER THEY WERE
EMPLOYEES AND PROPERLY WITHIN THE UNIT OR SUPERVISORS AS DEFINED IN
SEC. 2(11) OF THE ACT AND THEREFORE EXCLUDED.  THE REGIONAL DIRECTOR
FOUND THAT THREE WERE EMPLOYEES AND ORDERED AN ELECTION IN A UNIT
CONSISTING OF ALL THE EMPLOYEES, INCLUDING THE THREE. 

PETITIONER FILED A REQUEST WITH THE BOARD TO REVIEW THE DECISION OF
THE REGIONAL DIRECTOR THAT THE THREE MEN IN QUESTION WERE EMPLOYEES,
CONTENDING THAT SUCH DETERMINATION WAS CLEARLY ERRONEOUS.  THE BOARD
DENIED PETITIONER'S REQUEST FOR REVIEW AND AN ELECTION WAS HELD. 
THEREAFTER THE REGIONAL DIRECTOR CERTIFIED THE UNION AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF THE EMPLOYEES.  WHEN PETITIONER REFUSED TO
BARGAIN, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE WITH THE
BOARD.  THE TRIAL EXAMINER FOUND FOR THE UNION AND THE BOARD AFFIRMED. 
175 N.L.R.B. NO. 68. 

PETITIONER MOVED FOR RECONSIDERATION CLAIMING THE BOARD MUST REVIEW
THE REGIONAL DIRECTOR'S REPRESENTATION DETERMINATION BEFORE ISSUING AN
UNFAIR LABOR PRACTICE ORDER BASED ON IT.  PETITIONER'S RELIANCE WAS ON
PEPSI-COLA CO. V. NLRB, 409 F.2D 676, DECIDED BY THE COURT OF APPEALS
FOR THE SECOND CIRCUIT.  THE BOARD DENIED THAT MOTION, NOTING ITS
DISAGREEMENT WITH THE PEPSI-COLA CASE. 

THE COURT OF APPEALS ENFORCED THE BOARD'S ORDER, /4/  427 F.2D 114,
THUS CREATING THE CONFLICT AMONG THE CIRCUITS WHICH LED US TO GRANT THE
PETITION FOR CERTIORARI.  400 U.S. 818. 

PETITIONER ARGUES THAT PLENARY REVIEW BY THE BOARD OF THE REGIONAL
DIRECTOR'S UNIT DETERMINATION IS NECESSARY AT SOME POINT. 
HISTORICALLY, THE REPRESENTATION ISSUE ONCE FULLY LITIGATED IN THE
REPRESENTATION PROCEEDING COULD NOT BE RELITIGATED IN AN UNFAIR LABOR
PRACTICE PROCEEDING.  WE SO HELD IN PITTSBURGH PLATE GLASS CO. V. NLRB,
SUPRA.  THAT CASE, OF COURSE, WAS DECIDED WHEN THE DETERMINATION OF THE
APPROPRIATE UNIT WAS MADE BY THE BOARD ITSELF.  IN 1959, SEC. 3(B) WAS
ADDED.  SENATOR GOLDWATER, A MEMBER OF THE CONFERENCE COMMITTEE
EXPLAINED ITS PURPOSE:  /5/ 

     "(SECTION 3(B)) IS A NEW PROVISION, NOT IN EITHER THE HOUSE OR

  SENATE BILLS, DESIGNED TO EXPEDITE FINAL DISPOSITION OF CASES BY

  THE BOARD, BY TURNING OVER PART OF ITS CASELOAD TO ITS REGIONAL

  DIRECTORS FOR FINAL DETERMINATION. 

     "UNDER THIS PROVISION, THE REGIONAL DIRECTORS CAN EXERCISE NO

  AUTHORITY IN REPRESENTATION CASES WHICH IS GREATER OR NOT THE

  SAME AS THE STATUTORY POWERS OF THE BOARD WITH RESPECT TO SUCH

  CASES.  IN THE HANDLING OF SUCH CASES, THE REGIONAL DIRECTORS ARE

REQUIRED TO FOLLOW THE LAWFUL RULES, REGULATIONS, PROCEDURES, AND

  PRECEDENTS OF THE BOARD AND TO ACT IN ALL RESPECTS AS THE BOARD

  ITSELF WOULD ACT. 

        .          .          .          . 

     "THIS AUTHORITY TO DELEGATE TO THE REGIONAL DIRECTORS IS

  DESIGNED, AS INDICATED, TO SPEED THE WORK OF THE BOARD . . . " 

WE TAKE THIS STATEMENT TO REFLECT THE CONSIDERED JUDGMENT OF
CONGRESS THAT THE REGIONAL DIRECTORS HAVE AN EXPERTISE CONCERNING UNIT
DETERMINATIONS.  OR PERHAPS CONGRESS WAS PRIMARILY MOTIVATED BY A
DESIRE TO LIGHTEN THE BOARD'S WORKLOAD AND SPEED UP ITS PROCESSES.  ITS
RECENT REPORT /6/  SHOWS THAT IN FISCAL YEAR 1969, A TOTAL OF 1,999
FORMAL REPRESENTATION DECISIONS WERE ISSUED EITHER DIRECTING ELECTIONS
OR DISMISSING ELECTION PETITIONS; 1,872 OF THESE WERE RENDERED BY
REGIONAL DIRECTORS, AND 127 BY THE BOARD (100 ON DIRECT TRANSFER FROM
THE REGIONAL DIRECTORS FOR INITIAL DECISION AND 27 ON GRANT OF A
REQUEST FOR REVIEW OF THE REGIONAL DIRECTOR'S DECISION). 

BUT FOR THE 1959 AMENDMENT THE BOARD WOULD HAVE DECIDED ALL OF THOSE
CASES. 

WHATEVER THE REASON FOR THE DELEGATION, CONGRESS HAS MADE A CLEAR
CHOICE; AND THE FACT THAT THE BOARD HAS ONLY DISCRETIONARY REVIEW OF
THE DETERMINATION OF THE REGIONAL DIRECTOR CREATES NO POSSIBLE
INFIRMITY WITHIN THE RANGE OF OUR IMAGINATION. 

THE FACT THAT CONGRESS IN 1961 REJECTED A REORGANIZATION PLAN WHICH
WOULD HAVE DELEGATED DECISIONMAKING POWER IN UNFAIR LABOR PRACTICE
CASES TO THE HANDS OF TRIAL EXAMINERS SUBJECT TO DISCRETIONARY BOARD
REVIEW /7/  HAS NO BEARING ON THE PRESENT PROBLEM.  THE CHOICES
CONGRESS MAY MAKE IN DECIDING WHAT DELEGATION OF AUTHORITY IS
APPROPRIATE DO NOT IN THE PRESENT CONTEXT RAISE ANY SEMBLANCE OF A
SUBSTANTIAL QUESTION.  FOR IT IS UNMISTAKABLY PLAIN HERE THAT TY SEC.
3(B) CONGRESS DID ALLOW THE BOARD TO MAKE A DELEGATION OF ITS AUTHORITY
OVER DETERMINATION OF THE APPROPRIATE BARGAINING UNIT TO THE REGIONAL
DIRECTOR. 

THE BOARD'S RULES /8/  MAKE CLEAR THAT THE REGIONAL DIRECTOR IS
REQUIRED TO FOLLOW THE SAME RULES AS THE BOARD RESPECTING FACTFINDING. 
/9/  THE REGIONAL DIRECTOR'S DETERMINATION IF ADOPTED BY THE TRIAL
EXAMINER IN THE UNFAIR LABOR PRACTICE PROCEEDING ACCOMPANIES THE CASE
BOTH TO THE BOARD /10/  AND TO THE COURT OF APPEALS.  /11/  IN THE
PRESENT CASE THE COURT OF APPEALS CONCLUDED THAT THE BOARD'S ORDER WAS
SUPPORTED "BY SUBSTANTIAL EVIDENCE."  /12/ 

CONGRESS HAS REQUIRED NO GREATER SHOWING THAN THAT. 

              AFFIRMED. 

/1/  SEC. 3(B) PROVIDES IN RELEVANT PART: 

"THE BOARD IS ALSO AUTHORIZED TO DELEGATE TO TIS REGIONAL DIRECTORS
ITS POWERS UNDER SECTION 9 TO DETERMINE THE UNIT APPROPRIATE FOR THE
PURPOSE OF COLLECTIVE BARGAINING, TO INVESTIGATE AND PROVIDE FOR
HEARINGS, AND DETERMINE WHETHER A QUESTION OF REPRESENTATION EXISTS,
AND TO DIRECT AN ELECTION OR TAKE A SECRET BALLOT UNDER SUBSECTION (C)
OR (E) OF SECTION 9 AND CERTIFY THE RESULTS THEREOF, EXCEPT THAT UPON
THE FILING OF A REQUEST THEREFOR WITH THE BOARD BY ANY INTERESTED
PERSON, THE BOARD MAY REVIEW ANY ACTION OF A REGIONAL DIRECTOR
DELEGATED TO HIM UNDER THIS PARAGRAPH, BUT SUCH A REVIEW SHALL NOT,
UNLESS SPECIFICALLY ORDERED BY THE BOARD, OPERATE AS A STAY OF ANY
ACTION TAKEN BY THE REGIONAL DIRECTOR . . . " 

/2/  THE RULES ARE CONTAINED IN 29 CFR 102.67.  SUBSECTIONS
102.67(C), (D), AND (F) STATE IN RELEVANT PART: 

"(C) THE BOARD WILL GRANT A REQUEST FOR REVIEW ONLY WHERE COMPELLING
REASONS EXIST THEREFOR.  ACCORDINGLY, A REQUEST FOR REVIEW MAY BE
GRANTED ONLY UPON ONE OR MORE OF THE FOLLOWING GROUNDS: 

"(1) THAT A SUBSTANTIAL QUESTION OF LAW OR POLICY IS RAISED BECAUSE
OF (I) THE ABSENCE OF, OR (II) A DEPARTURE FROM, OFFICIALLY REPORTED
BOARD PRECEDENT. 

"(2) THAT THE REGIONAL DIRECTOR'S DECISION ON A SUBSTANTIAL FACTUAL
ISSUE IS CLEARLY ERRONEOUS ON THE RECORD AND SUCH ERROR PREJUDICIALLY
AFFEXTS THE RIGHTS OF A PARTY. 

"(3) THAT THE CONDUCT OF THE HEARING OR ANY RULING MADE IN
CONNECTION WITH THE PROC-EDING HAS RESULTED IN PREJUDICIAL ERROR. 

"(4) THAT THERE ARE COMPELLING REASONS FOR RECONSIDERATION OF AN
IMPORTANT BOARD RULE OR POLICY. 

"(D) . . . WITH RESPECT TO PARAGRAPH (C)(2) OF THIS SECTION, AND
OTHER GROUNDS WHERE APPROPRIATE, SAID REQUEST MUST CONTAIN A SUMMARY OF
ALL EVIDENCE OR RULINGS BEARING ON THE ISSUES TOGETHER WITH PAGE
CITATIONS FROM THE TRANSCRIPT AND A SUMMARY OF ARGUMENT.  BUT SUCH
REQUEST MAY NOT RAISE ANY ISSUE OR ALLEGE ANY FACTS NOT TIMELY
PRESENTED TO THE REGIONAL DIRECTOR." 

"(F) . . . FAILURE TO REQUEST REVIEW SHALL PRECLUDE SUCH PARTIES
FROM RELITIGATING, IN ANY RELATED SUBSEQUENT UNFAIR LABOR PRACTICE
PROCEEDING, ANY ISSUE WHICH WAS, OR COULD HAVE BEEN, RAISED IN THE
REPRESENTATION PROCEEDING.  DENIAL OF A REQUEST FOR REVIEW SHALL
CONSTITUTE AN AFFIRMANCE OF THE REGIONAL DIRECTOR'S ACTION WHICH SHALL
ALSO PRECLUDE RELITIGATING ANY SUCH ISSUES IN ANY RELATED SUBSEQUENT
UNFAIR LABOR PRACTICE PROCEEDING." 

/3/  SEE RULES, SUPRA, N. 2. 

/4/  THE TENTH CIRCUIT IS IN ACCORD WITH THE FIRST.  SEE MEYER
DAIRY, INC. V. NLRB, 429 F.2D 697, 699-700. 

/5/  105 CONG. REC. 19770. 

/6/  34TH ANNUAL REPORT, TABLE 3B, 201 (1970). 

/7/ 107 CONG.REC.  10223, 12905-12932. 

/8/  SEE RULES, SUPRA, N. 2. 

/9/  29 CFR 102.67(B). 

/10/  29 CFR 102.45(A). 

/11/  29 CFR 101.14. 

/12/  THERE IS NO DIFFERENT STANDARD OF REVIEW PRESCRIBED BY THE
ADMINISTRATIVE PROCEDURE ACT.  5 U.S.C. 706 (1964 ED., SUPP. V).  SEE
UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474, 487. 

LOUIS CHANDLER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS JEROME H. SOMERS. 

NORTON J. COME ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, WM. TERRY BRAY, ARNOLD ORDMAN,
AND DOMINICK L. MANOLI. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JERRY
KRONENBERG AND ALAN RAYWID FOR THE TERMINAL FREIGHT COOPERATIVE
ASSOCIATION, AND BY WILLIAM L. DENNIS FOR OLSON BODIES, INC. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY BERNARD
KLEIMAN, ELLIOT BREDHOFF, MICHAEL H. GOTTESMAN, AND GEORGE H. COHEN FOR
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO, AND BY BENJAMIN RUBENSTEIN
FOR INTERNATIONAL UNION, U.A.W.
..END :









SANKS V. GEORGIA, 401 U.S. 144 


       SANKS ET AL. V. GEORGIA ET AL.

        APPEAL FROM THE SUPREME COURT OF GEORGIA

        NO. 28.  ARGUED DECEMBER 8, 1969-- REARGUED NOVEMBER 17-18,

           1970-- DECIDED FEBRUARY 23, 1971 


AS A CONDITION PRECEDENT TO MAKING A DEFENSE AGAINST A SUMMARY
EVICTION PROCEEDING, GEORGIA LAW PROVIDED THAT THE TENANT POST A SURETY
BOND FOR DOUBLE THE AMOUNT DUE AT THE END OF THE TRIAL, THE LANDLORD
BECOMING ENTITLED TO SUCH DOUBLE RENT SHOULD THE TENANT LOSE HIS CASE. 
FOLLOWING THE GEORGIA SUPREME COURT'S UPHOLDING OF THAT STATUTORY
SCHEME OVER DUE PROCESS AND EQUAL PROTECTION CHALLENGES BY APPELLANTS,
INDIGENT TENANTS SEEKING TO CONTEST SUMMARY EVICTION, APPELLANTS LEFT
THE PREMISES THEIR LANDLORDS INITIALLY SOUGHT TO RECOVER, AND ENTIRELY
NEW LEGISLATION WAS ENACTED CONTAINING NEITHER THE BOND-POSTING NOR
DOUBLE-RENT REQUIREMENT.  HELD:  THESE ENSUING DEVELOPMENTS MAKE IT
INAPPROPRIATE FOR THIS COURT TO RESOLVE THE ISSUES ORIGINALLY RAISED BY
APPELLANTS SINCE IT CANNOT BE DETERMINED TO WHAT EXTENT ADJUDICATION OF
THOSE ISSUES WOULD BE MATERIAL TO ANY FURTHER LITIGATION ENSUING ON
REMAND.  PP. 147-153. 

225 G. 88, 166 S.E.2D 19, APPEAL DISMISSED AND REMANDED. 

HARLAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  BLACK, J., FILED A STATEMENT CONCURRING IN THE JUDGMENT, POST,
P. 153. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WE NOTED PROBABLE JURISDICTION IN THIS CASE, 395 U.S. 974 (1969),
BECAUSE THE JUDGMENT OF THE GEORGIA SUPREME COURT APPEARED TO RAISE
SUBSTANTIAL QUESTIONS UNDER THE FOURTEENTH AMENDMENT THAT WERE
DESERVING OF OUR PLENARY CONSIDERATION, AND BECAUSE WHATEVER CONCLUSION
THIS COURT MIGHT REACH WITH RESPECT TO THEM WOULD DEFINITIVELY SETTLE
THIS ASPECT OF THE LITIGATION.  IN BRIEF, THE GEORGIA SUPREME COURT
UPHELD, OVER DUE PROCESS AND EQUAL PROTECTION CHALLENGES, A STATE
STATUTORY SCHEME THAT COMPELLED APPELLANTS, BOTH INDIGENT PERSONS WHO
SOUGHT TO CONTEST LANDLORD PETITIONS FOR SUMMARY EVICTION FROM THEIR
HOMES, TO POST, AS A CONDITION PRECEDENT TO OFFERING ANY DEFENSE TO
SUMMARY EVICTION, A SURETY BOND IN DOUBLE THE POTENTIAL AMOUNT OF RENT
DUE AT THE END OF TRIAL.  THE STATUTES, THIS ASPECT OF WHICH WAS ALSO
UPHELD BY THE GEORGIA SUPREME COURT, PROVIDED FURTHER THAT THE
LANDLORDS WOULD BECOME ENTITLED TO SUCH DOUBLE RENT SHOULD THE TENANT
APPELLANTS LOSE THEIR CASES. 

THE CASE WAS FIRST HEARD BY US AT THE 1969 TERM, AND WAS THEREAFTER
SET FOR REARGUMENT AT THE PRESENT TERM.  399 U.S. 922 (1970).  AT
REARGUMENT IT BECAME APPARENT THAT EVENTS OCCURRING SUBSEQUENT TO OUR
NOTATION OF PROBABLE JURISDICTION HAS SO DRASTICALLY UNDERMINED THE
PREMISES ON WHICH WE ORIGINALLY SET THIS CASE FOR PLENARY CONSIDERATION
AS TO LEAD US TO CONCLUDE THAT, WITH DUE REGARD FOR THE PROPER
FUNCTIONING OF THIS COURT, WE SHOULD NOT NOW ADJUDICATE IT.

        I 

THE GEORGIA STATUTORY SCHEME UNDER WHICH THIS CASE WAS INITIATED,
GA. CODE ANN. SECS. 61-301 TO 61-305 (1966), AND SEC. 61-306 (SUPP.
1969), OPERATED IN THE FOLLOWING MANNER.  A LANDLORD SEEKING SUMMARY
EVICTION COULD FILE AN AFFIDAVIT IN A LOCAL COURT, ALLEGING THAT THE
TENANT, FOR ONE OR MORE STATUTORILY ENUMERATED REASONS, WAS UNLAWFULLY
HOLDING POSSESSION OF THE PREMISES AND HAD REFUSED THE LANDLORD'S
DEMAND TO RELINQUISH POSSESSION.  (SEC. 61-301.)  WHEN SUCH AN
AFFIDAVIT HAD BEEN FILED THE LOCAL JUDICIAL OFFICER WAS REQUIRED TO
ISSUE A "WARRANT OR PROCESS" TO THE SHERIFF DIRECTING HIM TO "DELIVER
TO THE OWNER" THE PREMISES DESCRIBED IN THE AFFIDAVIT.  (SEC. 61-302.) 
THE SHERIFF WAS TO GIVE THE TENANT FOUR DAYS' NOTICE BEFORE EXECUTING
THE DISPOSSESSORY WARRANT.  (SEC. 61-306 (SUPP. 1969).) 

THE TENANT COULD PREVENT IMMEDIATE EVICTION ONLY BY FILING A COUNTER
AFFIDAVIT, ALLEGING ONE OF SEVERAL SPECIFIED DEFENSES AND ACCOMPANIED
BY A SURETY BOND "FOR THE PAYMENT OF SUCH SUM, WITH COSTS, AS MAY BE
RECOVERED AGAINST HIM ON THE TRIAL OF THE CASE."  (SEC. 61-303.)  ONLY
IF THE TENANT FOLLOWED THESE PROCEDURES WAS HE THEN ENTITLED TO A TRIAL
ON THE ISSUES RAISED BY THE AFFIDAVITS.  (SEC. 61-304.)  AGAINST THIS
BACKGROUND, SEC. 61-305 PROVIDED: 

"IF THE ISSUE SPECIFIED IN THE PRECEDING SECTION SHALL BE DETERMINED
AGAINST THE TENANT, JUDGMENT SHALL GO AGAINST HIM FOR DOUBLE THE RENT
RESERVED OR STIPULATED TO BE PAID, OR IF HE SHALL BE A TENANT AT WILL
OR SUFFERANCE, FOR DOUBLE WHAT THE RENT OF THE PREMISES IS SHOWN TO BE
WORTH . . . " 

IN THE CASE BEFORE US, APPELLANTS SANKS AND MOMMAN WERE SERVED WITH
DISPOSSESSORY WARRANTS ON MAY 21, 1968, AND JULY 17, 1968, RESPECTIVELY
(APP. 3, 18), AND THEN APPLIED FOR (APP. 5, 20), AND EVENTUALLY
OBTAINED (APP. 24-39) FROM THE CIVIL COURT OF FULTON COUNTY A "RULE
NISI" PERMITTING APPELLANTS TO REMAIN IN POSSESSION OF THEIR RESPECTIVE
PREMISES PENDING RESOLUTION OF THE FACTUAL ISSUES RAISED BY THEIR
APPLICATIONS, SO LONG AS THEY TIMELY PAID THEIR RENT INTO COURT DURING
THE PENDENCY OF THE LITIGATION.  BOTH THE BOND-POSTING REQUIREMENT
(SEC. 61-303) AND THE DOUBLE-RENT DAMAGES MEASURE (SEC. 61-305) WERE
DECLARED UNCONSTITUTIONAL AND, HENCE, INAPPLICABLE TO THESE EVICTION
PROCEEDINGS.  (APP. 27-38.)  ON AN INTERLOCUTORY APPEAL, THE TRIAL
COURT'S CONSTITUTIONAL DECLARATIONS WERE SET ASIDE BY THE SUPREME COURT
OF GEORGIA, 225 GA. 88, 166 S.E.2D 19 (1969), AND THE JUDGMENT OF THE
LOWER COURT WAS REVERSED. 

        II 

SINCE WE NOTED PROBABLE JURISDICTION THE POSTURE OF THIS CASE HAS
SHIFTED DRAMATICALLY.  BOTH MRS. MOMMAN AND MRS. SANKS HAVE REMOVED
FROM THE PREMISES ORIGINALLY SOUGHT TO BE RECOVERED BY THEIR
LANDLORDS.  IN ADDITION, THE GEORGIA GENERAL ASSEMBLY HAS REPEALED
VIRTUALLY THE ENTIRE STATUTORY SCHEME THAT HAS GOVERNED THIS LITIGATION
FROM ITS INCEPTION AND REPLACED IT WITH A NEW ONE, EFFECTIVE JULY 1,
1970, THAT CONTAINS NEITHER THE BOND-POSTING NOR DOUBLE-RENT
REQUIREMENT.  1 GA. LAWS 1970, PP. 968-972, GA. CODE ANN. SECS. 61-302
TO 61-305 (SUPP. 1970).  UNDER THE NEW LAW, DISPOSSESSORY ACTIONS WILL
STILL BE COMMENCED BY THE LANDLORD'S EXECUTION OF AN AFFIDAVIT.  NOW,
HOWEVER, THIS MERELY COMPELS THE LOCAL JUDICIAL OFFICER TO CAUSE THE
TENANT TO BE SUMMONED TO A HEARING (SEC. 61-302), AND THE TENANT CAN
RETAIN POSSESSION AND FORCE A TRIAL OF ANY DEFENSES HE MAY WISH TO
RAISE SIMPLY BY ANSWERING THE AFFIDAVIT, ORALLY OR IN WRITING, AT THE
HEARING.  (SEC. 61-303.)  EXPEDITED TRIALS ARE ENCOURAGED.  IF THE
LITIGATION HAS NOT BEEN CONCLUDED WITHIN A MONTH OF THE EXECUTION OF
THE LANDLORD'S AFFIDAVIT, THE TENANT MAY RETAIN POSSESSION BY PAYING
INTO COURT ALL RENT AS IT BECOMES DUE, IN ADDITION TO ANY RENT THAT WAS
DUE BUT NOT PAID PRIOR TO ISSUANCE OF THE SUMMONS.  (SECS. 61-303, 61
304.)  IF THE LANDLORD ULTIMATELY PREVAILS, HIS MONETARY DAMAGES, IF
ANY, ARE TO BE BASED ON THE ACTUAL, NOT DOUBLE, RENT FOUND DUE.  (SEC.
61-305.)  SIMILARLY, THE TENANT MAY, IN EFFECT, STAY EXECUTION OF THE
DISPOSSESSORY WARRANT PENDING APPEAL OF AN ADVERSE DETERMINATION SIMPLY
BY PAYING RENT, AS IT ACCRUES, INTO THE COURT.  (SEC. 61-306.) 

        III 

THE CRUX OF THIS CONTROVERSY FROM ITS INCEPTION HAS BEEN APPELLANTS'
INSISTENCE THAT THEY, NOT THEIR ALLEGED LANDLORDS, HAD THE RIGHT TO
LAWFUL POSSESSION OF THE PREMISES IN DISPUTE AND THEIR DEMANDS THAT
THEY BE PERMITTED TO REMAIN IN POSSESSION PENDING THE OUTCOME OF THE
LITIGATION.  /1/  WITH APPELLANTS' VOLUNTARY REMOVAL FROM THE PREMISES
THIS ASPECT OF THE CASE IS CLEARLY MOOT.  WE HAVE BEEN APPRISED OF NO
BASIS IN THE STATUTES OR CASE LAW FOR ASSUMING THAT WERE THIS COURT NOW
TO HOLD MRS. SANKS AND MRS. MOMMAN WERE CONSTITUTIONALLY ENTITLED TO
PROCEED IN THE TRIAL COURT WITHOUT FIRST POSTING A DOUBLE-RENT BOND,
THEY COULD THEN SEEK A DECREE UNDER THE STATUTES HERE AT ISSUE
RETURNING THEM TO POSSESSION OF THE PREMISES.  THE REPEALED STATUTE
SPOKE ONLY OF ENABLING A TENANT ALREADY IN POSSESSION TO CONTEST
FORCIBLE EVICTION UPON POSTING A BOND.  INDEED, NEITHER APPELLANTS NOR
APPELLEES-- ALL OF WHOM RESIST THE SUGGESTION THAT THE CASE AS A WHOLE
IS MOOT-- CONTEND THAT THIS ASPECT OF IT IS NOT MOOT.  THERE IS THUS NO
REASON TO BELIEVE THAT, ON REMAND, EITHER APPELLANT, IF SUCCESSFUL IN
THIS COURT, COULD LITIGATE, IN THE CONTEXT OF ANY PROCEEDING THAT MIGHT
CONCEIVABLY BE GOVERNED BY ANY OF THE PROVISIONS OF THESE REPEALED
GEORGIA STATUTES, A CLAIM TO BE PUT IN POSSESSION OF THE PREMISES SHE
ORIGINALLY OCCUPIED. 

IN SUPPORT OF THE CONTINUED JUSTICIABILITY OF THE CASE, APPELLANTS
RELY UPON A SUBSIDIARY ASPECT OF THIS CONTROVERSY WHICH THEY CLAIM
REMAINS ALIVE.  WERE THIS COURT TO AFFIRM THE GEORGIA SUPREME COURT ON
THE MERITS, THE CASE WOULD PRESUMABLY BE REMANDED TO THE TRIAL COURT IN
ACCORDANCE WITH THE GEORGIA SUPREME COURT'S MANDATE.  THERE, ARGUE
APPELLANTS, THOSE WHO INITIALLY PROCURED THE DISPOSSESSORY WARRANTS
MIGHT THEN MOVE FOR ENTRY OF A JUDGMENT FOR DOUBLE DAMAGES AS PROVIDED
IN FORMER SEC. 61-305.  APPELLANTS FEAR THAT SUCH A JUDGMENT MIGHT
AUTOMATICALLY BE ENTERED BECAUSE THEIR REMOVAL FROM THE PREMISES MIGHT
BE CONSTRUED AS EFFECTIVELY CONCEDING THEIR LACK OF SUBSTANTIVE
DEFENSES OR THAT, EVEN IF THEY ARE STILL TECHNICALLY ENTITLED TO RAISE
DEFENSES, APPELLANTS' ABILITY TO DO SO WILL BE CONDITIONED ON FIRST
POSTING THE BOND.  SUCH A RESULT IS POSSIBLE ONLY IF A NUMBER OF
FACTORS COALESCE.  FIRST, THE ORIGINAL MOVING PARTIES, THE ALLEGED
LESSORS, WOULD HAVE TO DECIDE TO SEEK SUCH DAMAGES FROM THESE
RELATIVELY IMPECUNIOUS APPELLANTS.  SECOND, THE GEORGIA COURTS WOULD
HAVE TO RULE THAT SUCH REQUEST FOR DAMAGES SHOULD BE ADJUDICATED UNDER
THE REPEALED STATUTES.  THIRD, IT WOULD ALSO BE NECESSARY FOR THE STATE
COURTS TO HOLD THAT THOSE STATUTES CONTEMPLATED AWARDING DOUBLE RENT IN
THE CIRCUMSTANCES HERE AND (SEE INFRA) ON A BASIS THAT RENDERS MATERIAL
THE BOND-POSTING PROVISION. 

BEYOND ALL THIS, THE ORIGINAL POSTURE OF THIS CASE HAS BEEN FURTHER
UPSET BY THE APPARENT FACT THAT PRIOR TO MOVING OUT, AND IN COMPLIANCE
WITH THE ORDER OF THE TRIAL COURT, APPELLANTS PAID THEIR RENT MONEY
INTO THE COURT'S REGISTRY AS IT BECAME DUE, MONEY THAT STILL REMAINS ON
DEPOSIT THERE.  TR. OF ORAL REARG., NOV. 18, 1970, PP. 10-11, 26. 

WITH THE CASE IN THIS COURT THUS SO REORIENTED, IT IS IMPOSSIBLE FOR
US TO PREDICT WHETHER AND TO WHAT EXTENT OUR ADJUDICATION OF THE ISSUES
ORIGINALLY PRESENTED WOULD NOW BE MATERIAL TO ANY FURTHER LITIGATION
THAT MIGHT ENSUE ON REMAND.  WHETHER THE ORIGINAL INITIATING PARTIES
WILL SEEK DOUBLE DAMAGES IS A MATTER WHOLLY BEYOND THE CONTROL OF THIS,
OR ANY OTHER, COURT.  WHETHER THE EXISTENCE OF FUNDS IN THE REGISTRY OF
THE TRIAL COURT WILL NECESSITATE AN ADVERSARY PROCEEDING TO
REDISTRIBUTE THEM AND, IF SO, WHETHER THAT PROCEEDING WOULD BE GOVERNED
BY THE REPEALED STATUTES WHICH, ON THEIR FACE, DO NOT EVEN REMOTELY
SPEAK TO THIS PROBLEM, ARE MATTERS OF PURE CONJECTURE.  BECAUSE THE
FORMER STATUTES PROVIDED FOR DOUBLE DAMAGES ONLY WHERE "THE ISSUE . . .
(IS) DETERMINED AGAINST THE TENANT" (FORMER SEC. 61-305) AND PROVIDED
FOR JOINDER OF ISSUE ONLY WHERE A DOUBLE-RENT BOND HAD FIRST BEEN
POSTED (FORMER SECS. 61-303, 61-304), WE ARE QUITE UNABLE TO SAY
WHETHER THE GEORGIA COURTS WOULD NEVERTHELESS HOLD THIS LANGUAGE
SUFFICIENTLY ELASTIC TO PERMIT A CLAIM FOR DOUBLE DAMAGES WHERE
EVICTION WAS ARRESTED BY COURT ORDER RATHER THAN A BOND, YET
INSUFFICIENTLY FLEXIBLE TO PERMIT SIMULTANEOUS WAIVER OF THE BOND
POSTING REQUIREMENT BEFORE ADJUDICATION OF SUCH A CLAIM.  NOR CAN WE
PREDICT WHETHER AND TO WHAT EXTENT REPEAL OF THE FORMER STATUTORY
SCHEME WOULD, ON REMAND, BE HELD TO ALTER ANY OF THE CONCLUSIONS
RESPECTING IT WHICH THE GEORGIA COURTS MIGHT OTHERWISE ADOPT IN THIS
CONTEXT.  /2/  ALL THESE ISSUES, SO FAR AS IT APPEARS, WOULD BE MATTERS
OF FIRST IMPRESSION FOR THE GEORGIA JUDICIARY. 

        IV 

GIVEN THIS IMPONDERABLE LEGAL TANGLE, INVOLVING, AS IT DOES, PURELY
MATTERS OF STATE LAW, WE PERCEIVE NO OTHER RESPONSIBLE COURSE FOR THIS
COURT THAN TO DECLINE, AT THIS STAGE, TO ADJUDICATE THE ISSUES
ORIGINALLY PRESENTED.  WE DO NOT REST THIS CONCLUSION ON A
DETERMINATION THAT THE CASE IS MOOT.  CONCEIVABLY, APPELLANTS MAY ON
REMAND BE SUBJECTED TO THE DOUBLE-RENT OR BOND-POSTING REQUIREMENTS OF
THE FORMER STATUTES.  BUT IT HAS ALWAYS BEEN A MATTER OF FUNDAMENTAL
PRINCIPLE WITH THIS COURT, A PRINCIPLE DICTATED BY OUR VERY
INSTITUTIONAL NATURE AND CONSTITUTIONAL OBLIGATIONS, THAT WE EXERCISE
OUR POWERS OF JUDICIAL REVIEW ONLY AS A MATTER OF NECESSITY.  AS SAID
IN UNITED STATES V. PETRILLO, 332 U.S. 1, 5 (1947), "WE HAVE
CONSISTENTLY REFRAINED FROM PASSING ON THE CONSTITUTIONALITY OF A
STATUTE UNTIL A CASE INVOLVING IT HAS REACHED A STAGE WHERE THE
DECISION OF A PRECISE CONSTITUTIONAL ISSUE IS A NECESSITY." 
MANIFESTLY, IT CANNOT PLAUSIBLY BE MAINTAINED THAT THIS IS SUCH A
CASE.  INDEED, THE ONLY THING THAT IS NOW APPARENT ABOUT THIS LAWSUIT
IS THAT THE CLEAR-CUT CONSTITUTIONAL ISSUES IT FORMERLY PRESENTED
CANNOT WITH ANY CERTAINTY BE SAID TO BE RELEVANT TO THE ISSUES
REMAINING IN IT, IF, IN FACT, ANY ISSUES DO REMAIN. 

MOREOVER, EVEN WERE THE CONSTITUTIONAL ISSUES CERTAIN TO ARISE BELOW
WE CANNOT FORETELL THE CONTEXT IN WHICH THEY WILL APPEAR.  POSSIBLY THE
DOUBLE-RENT PROVISION WILL BE SUCCESSFULLY INVOKED, BUT NOT THE BOND
POSTING REQUIREMENT.  SIMILARLY, IF THE LATTER IS HELD APPLICABLE, WE
WOULD AT THIS STAGE BE REQUIRED TO ADJUDICATE, IN ADVANCE OF THAT FACT,
ITS VALIDITY AS A PRECONDITION NOT TO RESISTING SUMMARY EVICTION, WHICH
IS ITS NORMAL AND CLEARLY INTENDED USE, BUT TO CONTESTING A CLAIM FOR
DAMAGES ONLY.  THE OPERATIVE COMPETING CONSTITUTIONAL CONSIDERATIONS,
PARTICULARLY THE NATURE AND SCOPE OF THE STATE'S INTEREST IN IMPOSING
SUCH A BARRIER TO LITIGATION, MAY WELL BE SIGNIFICANTLY DIFFERENT
DEPENDING ON THE PRINCIPAL PURPOSES FOR WHICH THE BOND IS REQUIRED. 
YET, GIVEN THE DEBILITATED STATE OF THIS LAWSUIT, WE COULD ADDRESS ONLY
THE SUBSIDIARY PROBLEM-- AND THIS IN A LEGAL CONTEXT WHERE WE WOULD NOT
KNOW WHETHER THAT PROBLEM WILL EVER ARISE. 

THE PRINCIPLE OF PRUDENT RESTRAINT WE INVOKE TODAY IS NOTHING NEW,
ALTHOUGH, HAPPILY, IT HAS NOT FREQUENTLY PROVED NECESSARY TO DISPOSE OF
APPEALS ON THIS BASIS.  UNITED STATES V. FRUEHAUF, 365 U.S. 146 (1961),
PROVIDES AN APT ANALOGY.  THERE THE UNITED STATES HAD APPEALED THE
DISMISSAL OF AN INDICTMENT BROUGHT UNDER SEC. 302(A) OF THE TAFT
HARTLEY ACT, 61 STAT. 157, WHICH MADE IT UNLAWFUL "FOR ANY EMPLOYER TO
PAY OR DELIVER, OR TO AGREE TO PAY OR DELIVER, ANY MONEY OR OTHER THING
OF VALUE TO ANY REPRESENTATIVES OF ANY OF HIS EMPLOYEES," WHERE THE
LOWER COURT HAD CONSTRUED A GOVERNMENT PRETRIAL MEMORANDUM AS A
CONCESSION THAT THE TRANSACTION FORMING THE BASIS OF THE INDICTMENT WAS
A LOAN AND HELD THAT THE STATUTE DID NOT PENALIZE MANAGEMENT FOR
LOANING MONEY TO UNION OFFICIALS.  THIS COURT NOTED PROBABLE
JURISDICTION TO CONSIDER THE VALIDITY OF THIS CONSTRUCTION OF THE
STATUTE, BUT AFTER ORAL ARGUMENT THE SOLICITOR GENERAL REPRESENTED TO
THE COURT THAT HE FELT THE GOVERNMENT WAS FREE, ON REMAND, TO PROVE THE
TRANSACTION CAME WITHIN THE STATUTE BECAUSE ITS PARTICULAR FACTS
REVEALED THIS WAS NOT A BONA FIDE LOAN.  THIS OCCURRENCE LEFT THE
PRECISE ISSUE TO BE DECIDED SO OPAQUE AND THE EXTENT TO WHICH A
DECISION WOULD RESOLVE THE CONTROVERSY SO UNCERTAIN THAT THE COURT, IN
EFFECT, WAS BEING ASKED TO RENDER AN "ADVANCE EXPRESSION OF LEGAL
JUDGMENT UPON ISSUES WHICH REMAIN UNFOCUSED," 365 U.S.,AT 157. 
ACCORDINGLY, THE COURT REMANDED THE CASE WITHOUT FURTHER ADJUDICATION. 

IN THE CASE NOW BEFORE US SUBSEQUENT EVENTS HAVE PRODUCED SIMILAR
CONSEQUENCES.  THE FOCUS OF THIS LAWSUIT HAS BEEN COMPLETELY BLURRED,
IF NOT ALTOGETHER OBLITERATED, AND OUR JUDGMENT ON THE IMPORTANT ISSUES
INVOLVED IS POTENTIALLY IMMATERIAL.  INDEED, THE INSTANT CASE IS
OBVIOUSLY MORE COMPELLING THAN FRUEHAUF, SINCE THIS ONE PRESENTS AN
ISSUE OF CONSTITUTIONAL, NOT STATUTORY, INTERPRETATION. 

SIMILARLY, IN RESCUE ARMY V. MUNICIPAL COURT OF LOS ANGELES, 331
U.S. 549 (1947), THE COURT DECLINED TO ADJUDICATE AN APPEAL PRESENTING
IMPORTANT CONSTITUTIONAL ISSUES BECAUSE THOSE ISSUES WERE, ON CLOSE
INSPECTION, SO INTERTWINED WITH COMPLEX PROBLEMS OF CONSTRUING THE LOS
ANGELES MUNICIPAL CODE THAT IT WAS NOT POSSIBLE TO TELL WITH PRECISION
AT THAT STAGE IN WHAT CONTEXT AND TO WHAT EXTENT THE APPELLANTS'
FREEDOM WAS BEING RESTRAINED.  SO, HERE, WE DO NOT KNOW, ASSUMING THE
BOND-POSTING OR DOUBLE-DAMAGES PROVISIONS ULTIMATELY ARE SUCCESSFULLY
INVOKED, IN WHAT CONTEXT THIS WILL OCCUR, OR WHAT THE PRECISE RATIONALE
FOR APPLYING THEM WILL BE. 

IN SHORT, RESOLUTION BY THIS COURT AT THIS TIME, OF THE ISSUES
ORIGINALLY RAISED BY APPELLANTS WOULD NOT BE APPROPRIATE.  WE LEAVE
OURSELVES COMPLETELY FREE, OF COURSE, TO REVIEW THESE ISSUES SHOULD
APPELLANTS' FEARS THAT THEY WILL BE ADVERSELY AFFECTED BY THE REPEALED
STATUTES SUBSEQUENTLY BE CONFIRMED BY PROCEEDINGS IN THE GEORGIA
COURTS. 

ACCORDINGLY, THE APPEAL WILL BE DISMISSED AND THE CASE REMANDED TO
THE SUPREME COURT OF GEORGIA. 

              IT IS SO ORDERED. 

/1/  MRS. SANKS INTENDED TO CONTEST THE DISPOSSESSORY WARRANT ON THE
GROUND THAT SHE IS NOT, IN FACT, THE TENANT OF THE PERSON SEEKING TO
EVICT HER.  APP. 5. 

/2/  GEORGIA HAS A STATUTORY POLICY DISAPPROVING THE RETROACTIVE
APPLICATION OF NEW STATUTES.  GA. CODE ANN. SEC. 102-104 (1968). 
HOWEVER, THE STATUTE EXPRESSLY DISTINGUISHES "(LAWS LOOKING ONLY TO THE
REMEDY OR MODE OF TRIAL."  CONCEIVABLY, THIS CASE MIGHT BE HELD TO FALL
WITHIN THAT EXCEPTION.  MOREOVER, WE CANNOT FORETELL WHETHER A
SUBSEQUENT MOTION FOR DOUBLE DAMAGES WOULD BE TREATED AS, IN EFFECT, A
NEW LAWSUIT FILED WELL AFTER PASSAGE OF THE NEW ACT. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT OF THE COURT DISMISSING
THIS APPEAL BUT DOES SO SPECIFICALLY ON THE GROUND THAT THE CASE IS NOW
MOOT. 

MICHAEL D. PADNOS REARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEF WERE NANCY S. CHEVES AND JOHN WILLIAM BRENT. 

ALFRED L. EVANS, JR., ASSISTANT ATTORNEY GENERAL OF GEORGIA,
REARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE ARTHUR K.
BOLTON, ATTORNEY GENERAL, HAROLD N. HILL, JR., EXECUTIVE ASSISTANT
ATTORNEY GENERAL, AND A. JOSEPH NARDONE, JR., ASSISTANT ATTORNEY
GENERAL. 

FRANK B. ZEIGLER FILED A BRIEF FOR THE LEGAL AID OFFICE OF SAVANNAH,
INC., AS AMICUS CURIAE URGING REVERSAL. 
..END :















LAW STUDENTS RESEARCH COUNCIL V. WADMOND, 401 U.S. 154 


       LAW STUDENTS CIVIL RIGHTS RESEARCH COUNCIL, INC., ET AL. V.

           WADMOND ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK

        NO. 49.  ARGUED OCTOBER 15, 1970-- DECIDED FEBRUARY 23,

           1971 


APPELLANTS CHALLENGE, PRIMARILY ON FIRST AMENDMENT VAGUENESS AND
OVERBREADTH GROUNDS; THE SYSTEM FOR SCREENING APPLICANTS FOR ADMISSION
TO THE NEW YORK BAR.  TO CARRY OUT THE STATUTORY REQUIREMENT THAT THE
APPELLATE DIVISION OF THE STATE SUPREME COURT "BE SATISFIED THAT SUCH
PERSON POSSESSES THE CHARACTER AND GENERAL FITNESS REQUISITE FOR AN
ATTORNEY AND COUNSELLOR-AT-LAW," COMMITTEES ON CHARACTER AND FITNESS
RECEIVE AFFIDAVITS FROM TWO PERSONS (ONE OF WHOM MUST BE A PRACTICING
ATTORNEY) ACQUAINTED WITH THE APPLICANT, AND A QUESTIONNAIRE COMPLETED
BY THE APPLICANT.  THE COMMITTEES ALSO CONDUCT PERSONAL INTERVIEWS WITH
EACH APPLICANT.  AS THE FINAL STEP BEFORE ADMISSION TO THE BAR, THE
APPLICANT MUST TAKE AN OATH THAT HE WILL SUPPORT THE UNITED STATES AND
NEW YORK CONSTITUTIONS.  APPELLANTS ATTACK THE PROCEDURE, NOT BECAUSE
ANY APPLICANT HAS EVER BEEN UNJUSTIFIABLY DENIED PERMISSION TO PRACTICE
LAW IN NEW YORK, BUT ON THE BASIS THAT IT WORKS A "CHILLING EFFECT"
UPON THE EXERCISE OF FREE SPEECH AND ASSOCIATION OF LAW STUDENTS.  THE
THREE-JUDGE DISTRICT COURT FOUND CERTAIN ITEMS ON THE QUESTIONNAIRE SO
VAGUE, OVERBROAD, AND INTRUSIVE ON APPLICANTS' PRIVACY AS TO BE OF
DOUBTFUL CONSTITUTIONAL VALIDITY, BUT UPHELD THE STATUTE AND RULES AS
VALID ON THEIR FACE, AND WITH THE EXCEPTIONS NOTED, SUSTAINED THE
VALIDITY OF THE PROCEDURE.  HELD: 

1.  THE "CHARACTER AND GENERAL FITNESS" REQUIREMENT FOR ADMISSION TO
THE NEW YORK BAR IS NOT VIOLATIVE OF THE CONSTITUTION.  PP. 159-160. 

(A) THE REQUIREMENT HAS BEEN CONSTRUED BY APPELLEES TO ENCOMPASS NO
MORE THAN "DISHONORABLE CONDUCT RELEVANT TO THE LEGAL PROFESSION."  P.
159. 

(B) THE CURRENT THIRD-PARTY AFFIDAVITS, SETTING FORTH THE NATURE AND
EXTENT OF AFFIANTS' ACQUAINTANCE WITH THE APPLICANT, DO NOT INFRINGE
UPON THE APPLICANT'S RIGHT TO PRIVACY.  P. 160. 

2.  NEW YORK'S RULE THAT AN APPLICANT FURNISH PROOF THAT HE
"BELIEVES IN THE FORM OF GOVERNMENT OF THE UNITED STATES AND IS LOYAL
TO SUCH GOVERNMENT," IS NOT CONSTITUTIONALLY INVALID IN LIGHT OF
APPELLEES' CONSTRUCTION THAT THE RULE PLACES NO BURDEN OF PROOF ON THE
APPLICANT, THAT THE "FORM OF GOVERNMENT" AND THE "GOVERNMENT" REFER
SOLELY TO THE CONSTITUTION, AND THAT "BELIEF" AND "LOYALTY" MEAN NO
MORE THAN WILLINGNESS TO TAKE THE CONSTITUTIONAL OATH AND ABILITY TO DO
SO IN GOOD FAITH.  PP. 161-164. 

3.  THE CHALLENGED ITEMS ON THE MODIFIED QUESTIONNAIRE ARE NOT
CONSTITUTIONALLY INVALID, AS ONE IS PRECISELY TAILORED TO CONFORM TO
THIS COURT'S DECISIONS ON ORGANIZATIONAL MEMBERSHIP AND ASSOCIATION,
AND THE OTHER IS MERELY SUPPORTIVE OF APPELLEES' TASK OF ASCERTAINING
THE APPLICANT'S GOOD FAITH IN TAKING THE CONSTITUTIONAL OATH.  PP. 164
166. 

4.  NEW YORK'S CAREFULLY ADMINISTERED SCREENING SYSTEM DOES NOT
NECESSARILY RESULT IN CHILLING THE EXERCISE OF CONSTITUTIONAL FREEDOMS,
AND WHETHER A DIFFERENT POLICY MIGHT BE WISER RESTS WITH THAT STATE'S
POLICY-MAKING BODIES.  P. 167. 

299 F.SUPP.  117, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND HARLAN, WHITE, AND BLACKMUN, JJ., JOINED.  HARLAN, J., FILED A
CONCURRING OPINION, ANTE, P. 34.  BLACK, J., FILED A DISSENTING
OPINION, IN WHICH DOUGLAS, J., JOINED, POST, P. 174.  MARSHALL, J.,
FILED A DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED, POST, P.
185. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

AN APPLICANT FOR ADMISSION TO THE BAR OF NEW YORK MUST BE A CITIZEN
OF THE UNITED STATES, HAVE LIVED IN THE STATE FOR AT LEAST SIX MONTHS,
AND PASS A WRITTEN EXAMINATION CONDUCTED BY THE STATE BOARD OF LAW
EXAMINERS.  IN ADDITION, NEW YORK REQUIRES THAT THE APPELLATE DIVISION
OF THE STATE SUPREME COURT IN THE JUDICIAL DEPARTMENT WHERE AN
APPLICANT RESIDES MUST "BE SATISFIED THAT SUCH PERSON POSSESSES THE
CHARACTER AND GENERAL FITNESS REQUISITE FOR AN ATTORNEY AND COUNSELLOR
AT-LAW."  NEW YORK JUDICIARY LAW SEC. 90, SUBD. 1, PAR. A (1968).  /1/
TO CARRY OUT THIS PROVISION, THE NEW YORK CIVIL PRACTICE LAW AND RULES
REQUIRE THE APPOINTMENT, IN EACH OF THE FOUR JUDICIAL DEPARTMENTS INTO
WHICH THE SUPREME COURT IS DIVIDED, OF A COMMITTEE OR COMMITTEES ON
CHARACTER AND FITNESS.  /2/  SECTION 528.1 OF THE RULES OF THE NEW YORK
COURT OF APPEALS FOR THE ADMISSION OF ATTORNEYS AND COUNSELLORS-AT-LAW
REQUIRES THAT THE CHARACTER AND GENERAL FITNESS SPECIFIED IN JUDICIARY
LAW SEC. 90 "MUST BE SHOWN BY THE AFFIDAVITS OF TWO REPUTABLE PERSONS
RESIDING IN THE CITY OR COUNTY IN WHICH (THE APPLICANT) RESIDES, ONE OF
WHOM MUST BE A PRACTICING ATTORNEY OF THE SUPREME COURT OF THIS
STATE."  /3/  THE COMMITTEES ALSO REQUIRE THE APPLICANT HIMSELF TO FILL
OUT A QUESTIONNAIRE.  /4/  AFTER RECEIPT OF THE AFFIDAVITS AND
QUESTIONNAIRE, THE COMMITTEES CONDUCT A PERSONAL INTERVIEW WITH EACH
APPLICANT.  AS A FINAL STEP BEFORE ACTUAL ADMISSION TO THE BAR, AN
APPLICANT MUST TAKE AN OATH THAT HE WILL SUPPORT THE CONSTITUTIONS OF
THE UNITED STATES AND OF THE STATE OF NEW YORK.  /5/ 

THIS CASE INVOLVES A BROAD ATTACK, PRIMARILY ON FIRST AMENDMENT
VAGUENESS AND OVERBREADTH GROUNDS, UPON THIS SYSTEM FOR SCREENING
APPLICANTS FOR ADMISSION TO THE NEW YORK BAR.  THE APPELLANTS,
PLAINTIFFS IN THE TRIAL COURT, ARE ORGANIZATIONS AND INDIVIDUALS
CLAIMING TO REPRESENT A CLASS OF LAW STUDENTS AND LAW GRADUATES
SIMILARLY SITUATED, SEEKING OR PLANNING TO SEEK ADMISSION TO PRACTICE
LAW IN NEW YORK.  THEY COMMENCED TWO SEPARATE ACTIONS FOR DECLARATORY
AND INJUNCTIVE RELIEF IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, NAMING AS DEFENDANTS TWO COMMITTEES ON
CHARACTER AND FITNESS AND THEIR MEMBERS AND TWO APPELLATE DIVISIONS AND
THEIR JUDGES.  /6/  THE COMPLAINTS ATTACKED THE STATUTES, RULES, AND
SCREENING PROCEDURES AS INVALID ON THEIR FACE OR AS APPLIED IN THE
FIRST AND SECOND DEPARTMENTS.  A THREE-JUDGE COURT WAS CONVENED AND
CONSOLIDATED THE TWO SUITS. 

IN A THOROUGH OPINION, THE COURT CONSIDERED THE APPELLANTS' CLAIMS
AND FOUND CERTAIN ITEMS ON THE QUESTIONNAIRES AS THEY THEN STOOD TO BE
SO VAGUE, OVERBROAD, AND INTRUSIVE UPON APPLICANTS' PRIVATE LIVES AS TO
BE OF DOUBTFUL CONSTITUTIONAL VALIDITY.  /7/  IT GRANTED THE PARTIAL
RELIEF INDICATED BY THESE FINDINGS, APPROVING OR FURTHER AMENDING THE
REVISED QUESTIONS SUBMITTED BY THE APPELLEES TO CONFORM TO ITS
OPINION.  /8/  IT UPHELD THE STATUTES AND RULES AS VALID ON THEIR FACE
AND, WITH THE EXCEPTIONS NOTED, SUSTAINED THE VALIDITY OF NEW YORK'S
SYSTEM.  THIS APPEAL FOLLOWED, AND WE NOTED PROBABLE JURISDICTION.  396
U.S. 999.  /9/ 

WE NOTE AT THE OUTSET THAT NO PERSON INVOLVED IN THIS CASE HAS BEEN
REFUSED ADMISSION TO THE NEW YORK BAR.  INDEED, THE APPELLANTS POINT TO
NO CASE IN WHICH THEY CLAIM ANY APPLICANT HAS EVER BEEN UNJUSTIFIABLY
DENIED PERMISSION TO PRACTICE LAW IN NEW YORK STATE UNDER THESE OR
EARLIER STATUTES, RULES, OR PROCEDURES.  THE BASIC THRUST OF THE
APPELLANTS' ATTACK IS, RATHER, THAT NEW YORK'S SYSTEM BY ITS VERY
EXISTENCE WORKS A "CHILLING EFFECT" UPON THE FREE EXERCISE OF THE
RIGHTS OF SPEECH AND ASSOCIATION OF STUDENTS WHO MUST ANTICIPATE HAVING
TO MEET ITS REQUIREMENTS. 

I 

THE THREE-JUDGE DISTRICT COURT, ALTHOUGH DIVIDED ON OTHER QUESTIONS,
WAS UNANIMOUS IN FINDING NO CONSTITUTIONAL INFIRMITY IN NEW YORK'S
STATUTORY REQUIREMENT THAT APPLICANTS FOR ADMISSION TO ITS BAR MUST
POSSESS "THE CHARACTER AND GENERAL FITNESS REQUISITE FOR AN ATTORNEY
AND COUNSELLOR-AT-LAW."  /10/  WE HAVE NO DIFFICULTY IN AFFIRMING THIS
HOLDING.  SEE KONIGSBERG V. STATE BAR, 366 U.S. 36, 40-41; SCHWARE V.
BOARD OF BAR EXAMINERS, 353 U.S. 232, 247 (FRANKFURTER, J.,
CONCURRING).  LONG USAGE IN NEW YORK AND ELSEWHERE HAS GIVEN WELL
DEFINED CONTOURS TO THIS REQUIREMENT, WHICH THE APPELLEES HAVE
CONSTRUED NARROWLY AS ENCOMPASSING NO MORE THAN "DISHONORABLE CONDUCT
RELEVANT TO THE LEGAL PROFESSION," SEE 299 F.SUPP.,AT 144 N. 10
(SEPARATE OPINION OF MOTLEY, J.); SEE ALSO SCHWARE V. BOARD OF BAR
EXAMINERS, SUPRA, AT 247 (FRANKFURTER, J., CONCURRING).  THE FEW
REPORTED CASES IN WHICH BAR ADMISSION HAS BEEN DENIED ON CHARACTER
GROUNDS IN NEW YORK ALL APPEAR TO HAVE INVOLVED INSTANCES OF MISCONDUCT
CLEARLY INCONSISTENT WITH THE STANDARDS OF A LAWYER'S CALLING.  /11/ 

THIS COURT ITSELF REQUIRES OF APPLICANTS FOR ADMISSION TO PRACTICE
BEFORE IT THAT "THEIR PRIVATE AND PROFESSIONAL CHARACTERS SHALL APPEAR
TO BE GOOD."  /12/  EVERY STATE, PLUS THE DISTRICT OF COLUMBIA, PUERTO
RICO, AND THE VIRGIN ISLANDS, REQUIRES SOME SIMILAR QUALIFICATION. 
/13/ 

BUT, THE APPELLANTS CONTEND, EVEN THOUGH THE STATUTORY STANDARD MAY
BE CONSTITUTIONALLY VALID, THE METHODS USED BY THE COMMITTEES TO
SATISFY THEMSELVES THAT APPLICANTS MEET THAT STANDARD ARE NOT. 
SPECIFICALLY, THE APPELLANTS OBJECT TO THE TERMS OF THE THIRD-PARTY
AFFIDAVITS ATTESTING TO AN APPLICANT'S GOOD MORAL CHARACTER.  DU6-NG
THIS LITIGATION, THE APPELLEES REVISED THE AFFIDAVIT FORMS IN SEVERAL
RESPECTS.  WHATEVER MAY HAVE BEEN SAID OF THE AFFIDAVITS FORMERLY USED,
WE CAN FIND NOTHING IN THE PRESENT FORMS REMOTELY VULNERABLE TO
CONSTITUTIONAL ATTACK.  IN THE SECOND DEPARTMENT, FOR EXAMPLE, AN
AFFIANT IS ASKED TO STATE WHETHER HE HAS VISITED THE APPLICANT'S HOME
AND, IF SO, HOW OFTEN.  WE THINK IT BORDERS ON THE FRIVOLOUS TO SAY
THAT SUCH AN INQUIRY OFFENDS THE APPLICANT'S "RIGHT TO PRIVACY
PROTECTED BY THE FIRST, FOURTH, NINTH, AND FOURTEENTH AMENDMENTS."  IT
IS THE APPLICANT WHO SELECTS THE TWO PEOPLE WHO WILL SIGN AFFIDAVITS ON
HIS BEHALF, AND THE COMMITTEES MAY REASONABLY INQUIRE AS TO THE NATURE
AND EXTENT OF AN AFFIANT'S ACTUAL ACQUAINTANCE WITH THE APPLICANT. 
/14/

        II 

AS STATED AT THE OUTSET OF THIS OPINION, NEW YORK HAS FURTHER
STANDARDS OF ELIGIBILITY FOR ADMISSION TO ITS BAR.  AN APPLICANT MUST
BE A UNITED STATES CITIZEN AND A NEW YORK RESIDENT OF SIX MONTHS'
STANDING.  AND BEFORE HE MAY BE FINALLY ADMITTED TO PRACTICE, AN
APPLICANT MUST SWEAR (OR AFFIRM) THAT HE WILL SUPPORT THE CONSTITUTIONS
OF THE UNITED STATES AND OF THE STATE OF NEW YORK.  REFLECTING THESE
REQUIREMENTS, RULE 9406 OF THE NEW YORK CIVIL PRACTICE LAW AND RULES
DIRECTS THE COMMITTEES ON CHARACTER AND FITNESS NOT TO CERTIFY AN
APPLICANT FOR ADMISSION "UNLESS HE SHALL FURNISH SATISFACTORY PROOF TO
THE EFFECT" THAT HE IS A CITIZEN OF THE UNITED STATES, HAS RESIDED IN
NEW YORK FOR AT LEAST SIX MONTHS, HAS COMPLIED WITH THE APPLICABLE
STATUTES AND RULES, AND "BELIEVES IN THE FORM OF THE GOVERNMENT OF THE
UNITED STATES AND IS LOYAL TO SUCH GOVERNMENT." 

THE APPELLANTS DO NOT TAKE ISSUE WITH THE CITIZENSHIP AND MINIMUM
RESIDENCE REQUIREMENTS, NOR WITH THE ITEMS ON THE QUESTIONNAIRES FOR
APPLICANTS DEALING WITH THESE REQUIREMENTS.  THEIR CONSTITUTIONAL
ATTACK IS MOUNTED AGAINST THE REQUIREMENT OF BELIEF "IN THE FORM OF"
AND LOYALTY TO THE GOVERNMENT OF THE UNITED STATES, AND UPON THOSE
PARTS OF THE QUESTIONNAIRES DIRECTED THERETO. 

WE DO NOT UNDERSTAND THE APPELLANTS TO QUESTION THE
CONSTITUTIONALITY OF THE ACTUAL OATH AN APPLICANT MUST TAKE BEFORE
ADMISSION TO PRACTICE.  IN ANY EVENT, THERE CAN BE NO DOUBT OF ITS
VALIDITY.  IT MERELY REQUIRES AN APPLICANT TO SWEAR OR AFFIRM THAT HE
WILL "SUPPORT THE CONSTITUTION OF THE UNITED STATES" AS WELL AS THAT OF
THE STATE OF NEW YORK.  SEE KNIGHT V. BOARD OF REGENTS, 269 F.SUPP. 
339, AFF'D PER CURIAM, 390 U.S. 36; HOSACK V. SMILEY, 276 F.SUPP.  876,
AFF'D PER CURIAM, 390 U.S. 744; OHLSON V. PHILLIPS, 304 F.SUPP.  1152,
AFF'D PER CURIAM, 397 U.S. 317.  /15/ 

IF ALL WE HAD BEFORE US WERE THE LANGUAGE OF RULE 9406, WHICH SEEMS
TO REQUIRE AN APPLICANT TO FURNISH PROOF OF HIS BELIEF IN THE FORM OF
THE GOVERNMENT OF THE UNITED STATES AND OF HIS LOYALTY TO THE
GOVERNMENT, THIS WOULD BE A DIFFERENT CASE.  FOR THE LANGUAGE OF THE
RULE LENDS ITSELF TO A CONSTRUCTION THAT COULD RAISE SUBSTANTIAL
CONSTITUTIONAL QUESTIONS, BOTH AS TO THE BURDEN OF PROOF PERMISSIBLE IN
SUCH A CONTEXT UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, SPEISER V. RANDALL, 357 U.S. 513, AND AS TO THE PERMISSIBLE
SCOPE OF INQUIRY INTO AN APPLICANT'S POLITICAL BELIEFS UNDER THE FIRST
AND FOURTEENTH AMENDMENTS, E.G., BAGGETT V. BULLITT, 377 U.S. 360;
BARENBLATT V. UNITED STATES, 360 U.S. 109; SPEISER V. RANDALL, SUPRA,
AT 527; BEILAN V. BOARD OF PUBLIC EDUCATION, 357 U.S. 399; SWEEZY V.
NEW HAMPSHIRE, 354 U.S. 234.  BUT THIS CASE COMES BEFORE US IN A
SIGNIFICANT AND UNUSUAL POSTURE:  THE APPELLEES ARE THE VERY STATE
AUTHORITIES ENTRUSTED WITH THE DEFINITIVE INTERPRETATION OF THE
LANGUAGE OF THE RULE.  WE THEREFORE ACCEPT THEIR INTERPRETATION,
HOWEVER WE MIGHT CONSTRUE THAT LANGUAGE WERE IT LEFT FOR US TO DO SO.
IF THE APPELLEES BE REGARDED AS STATE COURTS, WE ARE OF COURSE BOUND BY
THEIR CONSTRUCTION.  SEE, E.G., BAGGETT V. BULLITT, SUPRA, AT 375;
KINGSLEY INTERNATIONAL PICTURES CORP. V. REGENTS OF THE UNIVERSITY, 360
U.S. 684, 688; SPEISER V. RANDALL, SUPRA, AT 519; TERMINIELLO V.
CHICAGO, 337 U.S. 1, 5-6.  IF THEY ARE VIEWED AS STATE ADMINISTRATIVE
AGENCIES CHARGED WITH ENFORCEMENT AND CONSTRUCTION OF THE RULE, THEIR
VIEW IS AT LEAST ENTITLED TO "RESPECTFUL CONSIDERATION," FOX V.
STANDARD OIL CO., 294 U.S. 87, 96 (CARDOZO, J.), AND WE SEE NO REASON
NOT TO ACCEPT THEIR INTERPRETATION IN THIS CASE. 

THE APPELLEES HAVE MADE IT ABUNDANTLY CLEAR THAT THEIR CONSTRUCTION
OF THE RULE IS BOTH EXTREMELY NARROW AND FULLY COGNIZANT OF PROTECTED
CONSTITUTIONAL FREEDOMS.  /16/  THERE ARE THREE KEY ELEMENTS TO THIS
CONSTRUCTION.  FIRST, THE RULE PLACES UPON APPLICANTS NO BURDEN OF
PROOF.  /17/  SECOND, "THE FORM OF THE GOVERNMENT OF THE UNITED STATES"
AND THE "GOVERNMENT" REFER SOLELY TO THE CONSTITUTION, WHICH IS ALL
THAT THE OATH MENTIONS.  THIRD, "BELIEF" AND "LOYALTY" MEAN NO MORE
THAN WILLINGNESS TO TAKE THE CONSTITUTIONAL OATH AND ABILITY TO DO SO
IN GOOD FAITH. 

ACCEPTING THIS CONSTRUCTION, WE FIND NO CONSTITUTIONAL INVALIDITY IN
RULE 9406.  THERE IS "NO SHOWING OF AN INTENT TO PENALIZE POLITICAL
BELIEFS."  KONIGSBERG V. STATE BAR, 366 U.S.,AT 54.  AT THE MOST, THE
RULE AS AUTHORITATIVELY INTERPRETED BY THE APPELLEES PERFORMS ONLY THE
FUNCTION OF ASCERTAINING THAT AN APPLICANT IS NOT ONE WHO "SWEARS TO AN
OATH PRO FORMA WHILE DECLARING OR MANIFESTING HIS DISAGREEMENT WITH OR
INDIFFERENCE TO THE OATH."  BOND V. FLOYD, 385 U.S. 116, 132. 

        III 

AS THIS CASE COMES TO US FROM THE THREE-JUDGE PANEL, THE
QUESTIONNAIRE APPLICANTS ARE ASKED TO COMPLETE CONTAINS ONLY TWO
NUMBERED QUESTIONS REFLECTING THE DISPUTED PROVISION OF RULE 9406. 
/18/  THEY ARE AS FOLLOWS: 

     "26.  (A) HAVE YOU EVER ORGANIZED OR HELPED TO ORGANIZE OR

  BECOME A MEMBER OF ANY ORGANIZATION OR GROUP OF PERSONS WHICH,

  DURING THE PERIOD OF YOUR MEMBERSHIP OR ASSOCIATION, YOU KNEW WAS

  ADVOCATING OR TEACHING THAT THE GOVERNMENT OF THE UNITED STATES

  OR ANY STATE OR ANY POLITICAL SUBDIVISION THEREOF SHOULD BE

  OVERTHROWN OR OVERTURNED BY FORCE, VIOLENCE OR ANY UNLAWFUL

  MEANS?-- IF YOUR ANSWER IS IN THE AFFIRMATIVE, STATE THE FACTS

BELOW. 

      "(B) IF YOUR ANSWER TO (A) IS IN THE AFFIRMATIVE, DID YOU,

  DURING THE PERIOD OF SUCH MEMBERSHIP OR ASSOCIATION, HAVE THE

  SPECIFIC INTENT TO FURTHER THE AIMS OF SUCH ORGANIZATION OR GROUP

  OF PERSONS TO OVERTHROW OR OVERTURN THE GOVERNMENT OF THE UNITED

  STATES OR ANY STATE OR ANY POLITICAL SUBDIVISION THEREOF BY

  FORCE, VIOLENCE OR ANY UNLAWFUL MEANS? 

     "27.  (A) IS THERE ANY REASON WHY YOU CANNOT TAKE AND
SUBSCRIBE

  TO AN OATH OR AFFIRMATION THAT YOU WILL SUPPORT THE CONSTITUTIONS

  OF THE UNITED STATES AND OF THE STATE OF NEW YORK?  IF THERE IS,

  PLEASE EXPLAIN. 

     "(B) CAN YOU CONSCIENTIOUSLY, AND DO YOU, AFFIRM THAT YOU ARE,

  WITHOUT ANY MENTAL RESERVATION, LOYAL TO AND READY TO SUPPORT THE

  CONSTITUTION OF THE UNITED STATES?"-- . 

IN DEALING WITH THESE QUESTIONS, WE EMPHASIZE AGAIN THAT THERE HAS
BEEN NO SHOWING THAT ANY APPLICANT FOR ADMISSION TO THE NEW YORK BAR
HAS BEEN DENIED ADMISSION EITHER BECAUSE OF HIS ANSWERS TO THESE OR ANY
SIMILAR QUESTIONS, OR BECAUSE OF HIS REFUSAL TO ANSWER THEM. 
NECESSARILY, THEREFORE, WE MUST CONSIDER THE VALIDITY OF THE QUESTIONS
ONLY ON THEIR FACE, IN LIGHT OF RULE 9406 AS CONSTRUED BY THE AGENCIES
ENTRUSTED WITH ITS ADMINISTRATION. 

QUESTION 26 IS PRECISELY TAILORED TO CONFORM TO THE RELEVANT
DECISIONS OF THIS COURT.  OUR CASES ESTABLISH THAT INQUIRY INTO
ASSOCIATIONS OF THE KIND REFERRED TO IS PERMISSIBLE UNDER THE
LIMITATIONS CAREFULLY OBSERVED HERE.  WE HAVE HELD THAT KNOWING
MEMBERSHIP IN AN ORGANIZATION ADVOCATING THE OVERTHROW OF THE
GOVERNMENT BY FORCE OR VIOLENCE, ON THE PART OF ONE SHARING THE
SPECIFIC INTENT TO FURTHER THE ORGANIZATION'S ILLEGAL GOALS, MAY BE
MADE CRIMINALLY PUNISHABLE.  SCALES V. UNITED STATES, 367 U.S. 203, 228
230.  IT IS ALSO WELL SETTLED THAT BAR EXAMINERS MAY ASK ABOUT
COMMUNIST AFFILIATIONS AS A PRELIMINARY TO FURTHER INQUIRY INTO THE
NATURE OF THE ASSOCIATION AND MAY EXCLUDE AN APPLICANT FOR REFUSAL TO
ANSWER.  KONIGSBERG V. STATE BAR, 366 U.S.,AT 46-47.  SEE ALSO, E.G.,
UNITED STATES V. ROBEL, 389 U.S. 258; KEYISHIAN V. BOARD OF REGENTS,
385 U.S. 589; ELFBRANDT V. RUSSELL, 384 U.S. 11; BEILAN V. BOARD OF
PUBLIC EDUCATION, 357 U.S. 399; GARNER V. BOARD OF PUBLIC WORKS, 341
U.S. 716.  /19/  SURELY A STATE IS CONSTITUTIONALLY ENTITLED TO MAKE
SUCH AN INQUIRY OF AN APPLICANT FOR ADMISSION TO A PROFESSION DEDICATED
TO THE PEACEFUL AND REASONED SETTLEMENT OF DISPUTES BETWEEN MEN, AND
BETWEEN A MAN AND HIS GOVERNMENT.  THE VERY CONSTITUTION THAT THE
APPELLANTS INVOKE STANDS AS A LIVING EMBODIMENT OF THAT IDEAL. 

AS TO QUESTION 27, THERE CAN HARDLY BE DOUBT OF ITS CONSTITUTIONAL
VALIDITY IN LIGHT OF OUR EARLIER DISCUSSION OF RULE 9406 AND THE
APPELLEES' CONSTRUCTION OF THAT RULE.  THE QUESTION IS SIMPLY
SUPPORTIVE OF THE APPELLEES' TASK OF ASCERTAINING THE GOOD FAITH WITH
WHICH AN APPLICANT CAN TAKE THE CONSTITUTIONAL OATH.  INDEED, THE
"WITHOUT ANY MENTAL RESERVATION" LANGUAGE OF PART (B) IS THE SAME
PHRASE THAT APPEARS IN THE OATH REQUIRED OF ALL FEDERAL UNIFORMED AND
CIVIL SERVICE PERSONNEL.  5 U.S.C. 3331 (1964 ED., SUPP. V).  NEW
YORK'S QUESTION, HOWEVER, IS LESS DEMANDING THAN THE FEDERAL OATH. 
TAKING THE OATH IS A REQUISITE FOR FEDERAL EMPLOYMENT, BUT THERE IS NO
INDICATION THAT A NEW YORK BAR APPLICANT WOULD NOT BE GIVEN THE
OPPORTUNITY TO EXPLAIN ANY "MENTAL RESERVATION" AND STILL GAIN
ADMISSION TO THE BAR. 

FINALLY, THERE EMERGES FROM THE APPELLANTS' BRIEFS AND ORAL ARGUMENT
A MORE FUNDAMENTAL CLAIM THAN ANY TO WHICH WE HAVE THUS FAR ADVERTED. 
THEY SUGGEST THAT, WHATEVER THE FACIAL VALIDITY OF THE VARIOUS DETAILS
OF A SCREENING SYSTEM SUCH AS NEW YORK'S, THERE INHERES IN SUCH A
SYSTEM SO CONSTANT A THREAT TO APPLICANTS THAT CONSTITUTIONAL
DEPRIVATIONS WILL BE INEVITABLE.  THE IMPLICATION OF THIS ARGUMENT IS
THAT NO SCREENING WOULD BE CONSTITUTIONALLY PERMISSIBLE BEYOND ACADEMIC
EXAMINATION AND EXTREMELY MINIMAL CHECKING FOR SERIOUS, CONCRETE
CHARACTER DEFICIENCIES.  THE PRINCIPAL MEANS OF POLICING THE BAR WOULD
THEN BE THE DETERRENT AND PUNITIVE EFFECTS OF SUCH POST-ADMISSION
SANCTIONS AS CONTEMPT, DISBARMENT, MALPRACTICE SUITS, AND CRIMINAL
PROSECUTIONS. 

SUCH AN APPROACH MIGHT BE WISE POLICY, BUT DECISIONS BASED ON POLICY
ALONE ARE NOT FOR US TO MAKE.  WE HAVE BEFORE US A STATE WHOSE AGENTS
HAVE EVIDENTLY BEEN SCRUPULOUS IN THE USE OF THE POWERS THAT THE
APPELLANTS ATTACK, AND WHO HAVE SHOWN EVERY WILLINGNESS TO KEEP THEIR
INVESTIGATIONS WITHIN CONSTITUTIONALLY PERMISSIBLE LIMITS.  WE ARE NOT
PERSUADED THAT CAREFUL ADMINISTRATION OF SUCH A SYSTEM AS NEW YORK'S
NEED RESULT IN CHILLING EFFECTS UPON THE EXERCISE OF CONSTITUTIONAL
FREEDOMS.  CONSEQUENTLY, THE CHOICE BETWEEN SYSTEMS LIKE NEW YORK'S AND
APPROACHES LIKE THAT URGED BY THE APPELLANTS RESTS WITH THE
LEGISLATURES AND OTHER POLICYMAKING BODIES OF THE INDIVIDUAL STATES. 
NEW YORK HAS MADE ITS CHOICE.  TO DISTURB IT WOULD BE BEYOND THE POWER
OF THIS COURT. 

THE JUDGMENT IS

              AFFIRMED. 

/1/  THE NEW YORK STATUTE, RULES, AND AFFIDAVIT FORMS RELEVANT TO
THE ISSUES IN THIS LITIGATION ARE SET OUT IN THE APPENDIX TO THIS
OPINION. 

/2/  N.Y. CIV. PRAC.  LAW AND RULES, RULE 9401 (1963); SEE ALSO ID.,
RULE 9404. 

THESE RULES, ORIGINALLY ENACTED BY THE STATE LEGISLATURE, MAY BE
AMENDED EITHER BY THE LEGISLATURE OR BY THE NEW YORK JUDICIAL
CONFERENCE.  N.Y. JUDICIARY LAW SEC. 229, SUBD. 3 (1968); N.Y. CIV.
PRAC.  LAW AND RULES, RULE 102 (1963). 

/3/  N.Y. JUDICIARY LAW APPENDIX SEC. 528.1 (SUPP. 1970).  THIS
TO THROUGHOUT THE BRIEFS AND EARLIER OPINIONS AS RULE VIII OF THE NEW
YORK COURT OF APPEALS. 

/4/  ANSWERS TO THESE QUESTIONNAIRES ARE TREATED AS CONFIDENTIAL. 

/5/  N.Y. JUDICIARY LAW SEC. 466 (1968); N.Y. CONST., ART. XIII,
SEC. 1. 

/6/  THE SUITS WERE BROUGHT UNDER 28 U.S.C. 1343(3) AND 42 U.S.C.
1983. 

/7/  299 F.SUPP.  117.  THE APPELLEES HAD ALREADY, BOTH BEFORE AND
AFTER THE COMMENCEMENT OF THIS LITIGATION, ELIMINATED OR REVISED
CERTAIN QUESTIONS TO WHICH THE APPELLANTS HAD ORIGINALLY RAISED
OBJECTIONS.  SEE ID. AT 129 AND N. 6. 

/8/  NO CROSS-APPEAL HAS BEEN TAKEN FROM THIS PARTIAL GRANT OF THE
REQUESTED INJUNCTION.  WE THEREFORE HAVE NO OCCASION TO CONSIDER
WHETHER THE DISTRICT COURT'S ACTION WAS CORRECT. 

/9/  OUR JURISDICTION OF THIS APPEAL RESTS ON 28 U.S.C. 1253, THE
THREE-JUDGE PANEL HAVING BEEN PROPERLY CONVENED SINCE THE SUITS
ATTACKED STATE STATUTES AS VIOLATIVE OF THE FEDERAL CONSTITUTION AND
REQUESTED INJUNCTIVE RELIEF, 28 U.S.C. 2281, WHICH THE DISTRICT COURT
PARTIALLY DENIED. 

THE APPELLEES ARE THE COMMITTEES ON CHARACTER AND FITNESS OF THE
FIRST AND SECOND DEPARTMENTS; THEIR INDIVIDUAL MEMBERS; THE FIRST AND
SECOND DEPARTMENTS OF THE APPELLATE DIVISION OF THE SUPREME COURT OF
THE STATE OF NEW YORK; AND THEIR INDIVIDUAL JUSTICES.  THE APPELLEES
CONTEND, AS THEY DID BELOW, THAT THE STATE COURTS AND THEIR JUSTICES
ARE NOT WITHIN THE JURISDICTION OF THE FEDERAL COURTS BECAUSE THEY ARE
NOT "PERSONS" WITHIN THE MEANING 0F 42 U.S.C. 1983.  THE DISTRICT COURT
REJECTED THIS ARGUMENT, REASONING THAT THE COURTS AND THE JUSTICES WERE
ACTING IN AN ADMINISTRATIVE CAPACITY AND THAT AN INJUNCTION HERE COULD
HAVE NO INHIBITING EFFECT ON THE PROPER PERFORMANCE OF JUDICIAL
DUTIES.  299 F.SUPP.,AT 123-124.  THE APPELLEES TOOK NO CROSS-APPEAL
AND DID NOT PRESS THE POINT IN THEIR MOTION TO AFFIRM.  WE THEREFORE
PURSUE THE MATTER NO FURTHER. 

/10/  299 F.SUPP.,AT 124-125 (MAJORITY OPINION OF FRIENDLY, J.);
ID., AT 143-144 (SEPARATE OPINION OF MOTLEY, J.). 

/11/  SEE, E.G., MATTER OF CASSIDY, 268 APP.DIV.  282, 51 N.Y.S.2D
202, AFF'D PER CURIAM, 296 N.Y. 926, 73 N.E.2D 41; MATTER OF PORTNOW,
253 APP.DIV.  395, 2 N.Y.S.2D 553; MATTER OF GREENBLATT, 253 APP.DIV. 
391, 2 N.Y.S.2D 569; MATTER OF PETERS, 221 APP.DIV.  607, 225 N.Y.S.
144, AFF'D PER CURIAM, 250 N.Y. 595, 166 N.E. 337; CF. MATTER OF
ANONYMOUS, 17 N.Y.2D 674, 216 N.E.2D 612. 

CF. ALSO IN RE STOLAR, ANTE, P. 23, IN WHICH IT APPEARS THAT THE
PETITIONER THERE HAD PREVIOUSLY BEEN ADMITTED TO THE NEW YORK BAR UNDER
THE STANDARDS IN USE BEFORE THE COMMENCEMENT OF THIS LITIGATION.  THERE
IS, MOREOVER, NO INDICATION THAT EITHER CHARLES EVANS HUGHES OR JOHN W.
DAVIS, DESPITE THE FEARS REFLECTED IN MR. JUSTICE BLACK'S DISSENTING
OPINION, POST, AT 180-181, ENCOUNTERED ANY DIFFICULTY WHATEVER IN
GAINING ADMISSION TO THE NEW YORK BAR. 

/12/  U.S. SUP. CT. RULE 5(1). 

/13/  SEE 5 1971 MARTINDALE-HUBBELL LAW DIRECTORY, PASSIM (103D ED.
1970). 

/14/  IN THE DISTRICT COURT THE APPELLANTS ALSO ATTACKED--
UNSUCCESSFULLY-- THE PRACTICE OF CONDUCTING PERSONAL INTERVIEWS.  THEY
DO NOT APPEAR TO PRESS SUCH OBJECTIONS HERE, EITHER AS TO THE PRACTICE
GENERALLY OR AS TO THE CONDUCT OF ANY PARTICULAR INTERVIEWS. 

/15/  CF. U.S. CONST., ART. VI, CL. 3: 

"THE SENATORS AND REPRESENTATIVES BEFORE MENTIONED, AND THE MEMBERS
OF THE SEVERAL STATE LEGISLATURES, AND ALL EXECUTIVE AND JUDICIAL
OFFICERS, BOTH OF THE UNITED STATES AND OF THE SEVERAL STATES, SHALL BE
BOUND BY OATH OR AFFIRMATION, TO SUPPORT THIS CONSTITUTION . . . " 

SEE ALSO U.S. SUP. CT. RULE 5(4), REQUIRING AN APPLICANT FOR
ADMISSION TO THE BAR OF THIS COURT TO SWEAR OR AFFIRM THAT HE WILL
"SUPPORT THE CONSTITUTION OF THE UNITED STATES." 

/16/  RULE 9406 DOES NOT ITSELF DIRECTLY IMPINGE UPON APPLICANTS; IT
IS RATHER AN INSTRUCTION TO THE APPELLEES, TOUCHING APPLICANTS ONLY AS
FILTERED THROUGH THE APPELLEES' CONSTRUCTION. 

/17/  AS THIS CASE COMES TO US FROM THE DISTRICT COURT, THE SUM
TOTAL OF WHAT APPLICANTS MUST DO IN THE FIRST INSTANCE TO SATISFY ANY
"BURDEN" PLACED UPON THEM BY THE RULE IS SIMPLY TO ANSWER TWO QUESTIONS
ON THE QUESTIONNAIRE THEY SUBMIT TO THE APPELLEE COMMITTEES.  THESE
QUESTIONS ARE DISCUSSED IN PART III OF THIS OPINION, INFRA. 

/18/  THE DISTRICT COURT ORDERED THE ELIMINATION OR REVISION OF THE
FOLLOWING QUESTIONS CONTAINED IN THE QUESTIONNAIRES AT THE TIME THIS
LITIGATION WAS COMMENCED: 

"26.  HAVE YOU EVER ORGANIZED OR HELPED TO ORGANIZE OR BECOME A
MEMBER OF OR PARTICIPATED IN ANY WAY WHATSOEVER IN THE ACTIVITIES OF
ANY ORGANIZATION OR GROUP OF PERSONS WHICH TEACHES (OR TAUGHT) OR
ADVOCATES (OR ADVOCATED) THAT THE GOVERNMENT OF THE UNITED STATES OR
ANY STATE OR ANY POLITICAL SUBDIVIDION THEREOF SHOULD BE OVERTHROWN OR
OVERTURNED BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS?-- IF YOUR ANSWER
IS IN THE AFFIRMATIVE, STATE THE FACTS BELOW. 

"27.  (A).  DO YOU BELIEVE IN THE PRINCIPLES UNDERLYING THE FORM OF
GOVERNMENT OF THE UNITED STATES OF AMERICA?-- " 

"31.  IS THERE ANY INCIDENT IN YOUR LIFE NOT CALLED FOR BY THE
FOREGOING QUESTIONS WHICH HAS ANY FAVORABLE OR DETRIMENTAL BEARING ON
YOUR CHARACTER OR FITNESS?-- IF THE ANSWER IS 'YES' STATE THE FACTS." 
(IN THE SECOND DEPARTMENT THE WORDS "FAVORABLE OR" DID NOT APPEAR.) 

NONE OF THE ABOVE QUESTIONS IS IN ISSUE HERE. 

/19/  DIVISION OF QUESTION 26 INTO TWO PARTS IS WHOLLY PERMISSIBLE
UNDER KONIGSBERG V. STATE BAR, SUPRA, WHICH APPROVED ASKING WHETHER AN
APPLICANT HAD EVER BEEN A MEMBER OF THE COMMUNIST PARTY WITHOUT ASKING
IN THE SAME QUESTION WHETHER THE APPLICANT SHARED ITS ILLEGAL GOALS. 
MOREOVER, THIS DIVISION NARROWS THE CLASS OF APPLICANTS AS TO WHOM THE
COMMITTEES ARE LIKELY TO FIND FURTHER INVESTIGATION APPROPRIATE.  FOR
THOSE WHO ANSWER PART (A) IN THE NEGATIVE, THAT IS THE END OF THE
MATTER. 

(FOR CONCURRING OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 34.) 

    APPENDIX TO OPINION OF THE COURT 

NEW YORK JUDICIARY LAW (1968):  ARTICLE 4-- APPELLATE DIVISION. 

SEC. 90.  ADMISSION TO AND REMOVAL FROM PRACTICE BY APPELLATE
DIVISION; CHARACTER COMMITTEES 

1.  A. UPON THE STATE BOARD OF LAW EXAMINERS CERTIFYING THAT A
PERSON HAS PASSED THE REQUIRED EXAMINATION, OR THAT THE EXAMINATION HAS
BEEN DISPENSED WITH, THE APPELLATE DIVISION OF THE SUPREME COURT IN THE
DEPARTMENT TO WHICH SUCH PERSON SHALL HAVE BEEN CERTIFIED BY THE STATE
BOARD OF LAW EXAMINERS, IF IT SHALL BE SATISFIED THAT SUCH PERSON
POSSESSES THE CHARACTER AND GENERAL FITNESS REQUISITE FOR AN ATTORNEY
AND COUNSELLOR-AT-LAW, SHALL ADMIT HIM TO PRACTICE AS SUCH ATTORNEY AND
COUNSELLOR-AT-LAW IN ALL THE COURTS OF THIS STATE, PROVIDED THAT HE HAS
IN ALL RESPECTS COMPLIED WITH THE RULES OF THE COURT OF APPEALS AND THE
RULES OF THE APPELLATE DIVISIONS RELATING TO THE ADMISSION OF
ATTORNEYS. 

NEW YORK CIVIL PRACTICE LAW AND RULES (1963):  ARTICLE 94--
ADMISSION TO PRACTICE. 

RULE 9401.  COMMITTEE 

THE APPELLATE DIVISION IN EACH JUDICIAL DEPARTMENT SHALL APPOINT A
COMMITTEE OF NOT LESS THAN THREE PRACTICING LAWYERS FOR EACH JUDICIAL
DISTRICT WITHIN THE DEPARTMENT, FOR THE PURPOSE OF INVESTIGATING THE
CHARACTER AND FITNESS OF EVERY APPLICANT FOR ADMISSION TO PRACTICE AS
AN ATTORNEY AND COUNSELOR AT LAW IN THE COURTS OF THIS STATE.  EACH
MEMBER OF SUCH COMMITTEE SHALL SERVE UNTIL HIS DEATH, RESIGNATION OR
THE APPOINTMENT OF HIS SUCCESSOR.  A LAWYER WHO HAS BEEN OR WHO SHALL
BE APPOINTED A MEMBER OF THE COMMITTEE FOR ONE DISTRICT MAY BE
APPOINTED A MEMBER OF THE COMMITTEE FOR ANOTHER DISTRICT WITHIN THE
SAME DEPARTMENT.     RULE 9404.  CERTIFICATE OF CHARACTER AND FITNESS 

UNLESS OTHERWISE ORDERED BY THE APPELLATE DIVISION, NO PERSON SHALL
BE ADMITTED TO PRACTICE WITHOUT A CERTIFICATE FROM THE PROPER COMMITTEE
THAT IT HAS CAREFULLY INVESTIGATED THE CHARACTER AND FITNESS OF THE
APPLICANT AND THAT, IN SUCH RESPECTS, HE IS ENTITLED TO ADMISSION.  TO
ENABLE THE COMMITTEE TO MAKE SUCH INVESTIGATION THE COMMITTEE, SUBJECT
TO THE APPROVAL OF THE JUSTICES OF THE APPELLATE DIVISION, IS
AUTHORIZED TO PRESCRIBE AND FROM TIME TO TIME TO AMEND A FORM OF
STATEMENT OR QUESTIONNAIRE ON WHICH THE APPLICANT SHALL SET FORTH IN
HIS USUAL HANDWRITING ALL THE INFORMATION AND DATA REQUIRED BY THE
COMMITTEE AND THE APPELLATE DIVISION JUSTICES, INCLUDING SPECIFICALLY
HIS PRESENT AND PAST PLACES OF ACTUAL RESIDENCE, LISTING THE STREET AND
NUMBER, IF ANY, AND THE PERIOD OF TIME HE RESIDED AT EACH PLACE. 

RULE 9406.  PROOF 

NO PERSON SHALL RECEIVE SAID CERTIFICATE FROM ANY COMMITTEE AND NO
PERSON SHALL BE ADMITTED TO PRACTICE AS AN ATTORNEY AND COUNSELOR AT
LAW IN THE COURTS OF THIS STATE, UNLESS HE SHALL FURNISH SATISFACTORY
PROOF TO THE EFFECT: 

1.  THAT HE BELIEVES IN THE FORM OF THE GOVERNMENT OF THE UNITED
STATES AND IS LOYAL TO SUCH GOVERNMENT; 

2.  THAT HE IS A CITIZEN OF THE UNITED STATES; 

3.  THAT HE HAS BEEN AN ACTUAL RESIDENT OF THE STATE OF NEW YORK FOR
SIX MONTHS PRIOR TO THE FILING OF HIS APPLICATION FOR ADMISSION TO
PRACTICE; AND 

4.  THAT HE HAS COMPLIED WITH ALL THE REQUIREMENTS OF THIS RULE AND
WITH ALL THE REQUIREMENTS OF THE APPLICABLE STATUTES OF THIS STATE, THE
APPLICABLE RULES OF THE COURT OF APPEALS AND THE APPLICABLE RULES OF
THE APPELLATE DIVISION IN WHICH HIS APPLICATION IS PENDING, RELATING TO
THE ADMISSION TO PRACTICE AS AN ATTORNEY AND COUNSELOR AT LAW. 

NEW YORK JUDICIARY LAW APPENDIX (SUPP. 1970):  RULES OF THE COURT OF
APPEALS FOR THE ADMISSION OF ATTORNEYS AND COUNSELORS-AT-LAW. 

        PART 528-- PROOF OF MORAL CHARACTER 

SEC. 528.1 GENERAL REGULATION 

EVERY APPLICANT FOR ADMISSION TO THE BAR MUST PRODUCE BEFORE A
COMMITTEE ON CHARACTER AND FITNESS APPOINTED BY AN APPELLATE DIVISION
OF THE SUPREME COURT AND FILE WITH SUCH COMMITTEE EVIDENCE THAT HE
POSSESSES THE GOOD MORAL CHARACTER AND GENERAL FITNESS REQUISITE FOR AN
ATTORNEY AND COUNSELOR AT LAW AS PROVIDED IN SECTION 90 OF THE
JUDICIARY LAW, WHICH MUST BE SHOWN BY THE AFFIDAVITS OF TWO REPUTABLE
PERSONS RESIDING IN THE CITY OR COUNTY IN WHICH HE RESIDES, ONE OF WHOM
MUST BE A PRACTICING ATTORNEY OF THE SUPREME COURT OF THIS STATE. 

SEC. 528.2 SUPPORTING AFFIDAVITS 

SUCH AFFIDAVITS MUST STATE THAT THE APPLICANT IS, TO THE KNOWLEDGE
OF THE AFFIANT, A PERSON OF GOOD MORAL CHARACTER AND MUST SET FORTH IN
DETAIL THE FACTS UPON WHICH SUCH KNOWLEDGE IS BASED.  SUCH AFFIDAVITS
SHALL NOT BE CONCLUSIVE, AND THE COURT MAY MAKE FURTHER EXAMINATION AND
INQUIRY THROUGH ITS COMMITTEE ON CHARACTER AND FITNESS OR OTHERWISE. 

SEC. 528.3 CERTIFICATE OF BOARD OF LAW EXAMINERS 

EVERY APPLICANT WHO PURSUED THE STUDY OF LAW PURSUANT TO THESE RULES
MUST FILE WITH SUCH COMMITTEE ON CHARACTER AND FITNESS HIS CERTIFICATE
FROM THE STATE BOARD OF LAW EXAMINERS SHOWING COMPLIANCE WITH THESE
RULES. 

SEC. 528.4 DISCRETION OF APPELLATE DIVISION 

THE JUSTICES OF THE APPELLATE DIVISION IN EACH DEPARTMENT SHALL
ADOPT FOR THEIR RESPECTIVE DEPARTMENTS SUCH ADDITIONAL RULES FOR
ASCERTAINING THE MORAL AND GENERAL FITNESS OF APPLICANTS AS TO SUCH
JUSTICES MAY SEEM PROPER. 

        AFFIDAVIT WITH RESPECT TO CHARACTER OF APPLICANT 

SUPREME COURT OF THE STATE OF NEW YORK 

APPELLATE DIVISION:  FIRST JUDICIAL DEPARTMENT

        IN THE MATTER OF THE APPLICATION OF 

1.

        . . . *

        FOR ADMISSION TO THE BAR 

STATE OFSS.: 

COUNTY OFSS.: 

2. . . . , BEING DULY SWORN, MAKES THE FOLLOWING STATEMENT: 

3.  RESIDENT OF AFFIANT: 

4.  NATURE OF AFFIANT'S BUSINESS: 

5.  BUSINESS ADDRESS OF AFFIANT: 

6.  LENGTH AND NATURE OF AFFIANT'S ACQUAINTANCE WITH APPLICANT: 

     A. RESIDENCE OF APPLICANT: 

     B. PERSONS WITH WHOM APPLICANT LIVES (IF KNOWN TO AFFIANT): 

7.  AFFIANT'S CONCLUSIONS AS TO APPLICANT'S MORAL CHARACTER: 

8.  FACTS UPON WHICH AFFIANT'S KNOWLEDGE OR OPINION AS TO
APPLICANT'S MORAL CHARACTER IS BASED: 

9.  IF THIS AFFIDAVIT IS MADE BY THE SPONSORING ATTORNEY, HIS
SPONSORS' STATEMENT (SEE ITEMS 8 AND 10 OF INSTRUCTION SHEET) MAY BE
MADE HERE:

              . . .

              (SIGNATURE) 

SWORN TO BEFORE ME THIS . . . 

DAY OF . . . , 19 . . .

        (DO NOT FORGET TO HAVE ALL AFFIDAVITS NOTARIZED)

        (NOTE:  NO BACK SHALL BE PUT ON AFFIDAVITS) 

*GIVE NAME OF APPLICANT AS IT APPEARS ON THE CERTIFICATE OF THE
STATE BOARD OF LAW EXAMINERS. 

        NEW YORK SUPREME COURT,

        APPELLATE DIVISION, SECOND

DEPARTMENT

        IN THE MATTER OF THE

        APPLICATION

        OF 

. . . 

(INSERT NAME OF APPLICANT) 

FOR ADMISSION TO PRACTISE AS AN ATTORNEY AND COUNSELOR-AT-LAW

        FORM FOR AFFIDAVIT

        OF CHARACTER

        AND RESIDENCE

        PLEASE NOTE 

THE ANSWERS TO ALL QUESTIONS ARE TO BE WRITTEN, PREFERABLY IN

  TYPEWRITING, BY OR UNDER THE DIRECTION OF THE AFFIANT.  IT IS

  DESIRED THAT BOTH THE SUBJECT MATTER AND THE LANGUAGE OF EACH

  ANSWER SHALL BE SUPPLIED BY THE AFFIANT AND NOT BY THE

  APPLICANT.  NOTHING NOT PERSONALLY KNOWN TO AFFIANT SHOULD BE

  STATED. 

STATE OF . . . SS.: 

COUNTY OF . . . SS.: 

. . . , THE AFFIANT, BEING DULY SWORN, 

(NAME OF AFFIANT) DEPOSES AND SAYS THAT THE ANSWERS TO THE FOLLOWING
QUESTIONS HAVE BEEN WRITTEN BY OR UNDER THE DIRECTION OF AFFIANT, AND
THAT BOTH QUESTIONS AND ANSWERS HAVE BEEN CAREFULLY READ BY AFFIANT AND
THAT THE SEVERAL ANSWERS ARE TRUE OF AFFIANT'S OWN KNOWLEDGE, EXCEPT
THOSE STATED TO HAVE BEEN MADE ON INFORMATION AND BELIEF, AND THOSE
STATED TO GIVE THE OPINION OR BELIEF OF AFFIANT, AND AS TO THOSE
ANSWERS, AFFIANT BELIEVES THEM TO BE TRUE. 

1.  (A) HOME ADDRESS OF AFFIANT (INCLUDING COUNTY). 

     (B) BUSINESS ADDRESS. 

2.  NATURE OF BUSINESS:  (IF A LAWYER, STATE WHETHER OR NOT YOU ARE
A PRACTISING ATTORNEY OF THE SUPREME COURT OF THE STATE OF NEW YORK,
AND/OR AN ATTORNEY OF ANY COURT OR COURTS IN ANY OTHER STATE, COUNTRY
OR JURISDICTION, SPECIFYING EACH SUCH STATE, COUNTRY OR JURISDICTION,
AND GIVE PLACE OF ADMISSION TO THE BAR, AND APPROXIMATE DATE OF SUCH
ADMISSION.) 

3.  HOW LONG HAVE YOU KNOWN THE APPLICANT PERSONALLY? 

4.  STATE WHETHER YOU ARE RELATED TO APPLICANT BY BLOOD OR MARRIAGE,
OR IF THERE IS ANY BUSINESS, PROFESSIONAL OR SIMILAR RELTATIONSHIP
BETWEEN YOU AND THE APPLICANT OR HIS FAMILY? 

5.  DESCRIBE BRIEFLY YOUR ASSOCIATIONS WITH THE APPLICANT, SETTING
FORTH HOW SUCH ASSOCIATIONS BEGAN, AND INDICATE IN WHAT ACTIVITIES
(BUSINESS, SCHOLASTIC, CULTURAL, RECREATIONAL, ATHLETIC, SOCIAL OR
OTHERWISE) YOU HAVE PARTICIPATED WITH APPLICANT.  IT IS NOT A
SUFFICIENT ANSWER MERELY TO REPEAT THE ABOVE WORDS IN PARENTHESIS, BUT
THE PARTICULAR ACTIVITIES SHOULD BE SPECIFIED. 

6.  HOW OFTEN HAVE YOU COME IN CONTACT WITH APPLICANT DURING THE
ENTIRE PERIOD OF ACQUANTANCE?  ("FREQUENTLY" OR "OFTEN" OR OTHER
INDEFINITE STATEMENT IS NOT A SATISFACTORY ANSWER.) 

7.  WHAT IS YOUR CONCLUSION AS TO APPLICANT'S MORAL CHARACTER? 
(RESERVE DETAILS FOR NEXT QUESTION.) 

8.  STATE IN DETAIL THE FACTS UPON WHICH YOUR KNOWLEDGE OR OPINION
AS TO APPLICANT'S CHARACTER IS BASED. 

9.  HAVE YOU VISITED APPLICANT'S 

     (A) PARENTAL HOME; 

     (B) MARITAL HOME, IF ANY; 

     (C) ANY OTHER HOME OR PLACE OF ABODE APPLICANT MAY HAVE HAD? 

10.  (A) HOW OFTEN HAVE YOU VISITED THE PARENTAL, MARITAL OR OTHER
HOME OR PLACE OF ABODE OF APPLICANT?  ("FREQUENTLY" OR "OFTEN" OR OTHER
INDEFINITE STATEMENT IS NOT A SATISFACTORY ANSWER.  NOTE THAT IN MOST
CASES VISITS WILL BE LESS FREQUENT THAN THE CONTACTS MENTIONED IN Q. 6,
ABOVE.) 

     (B) DURING WHAT YEARS (STATING APPROXIMATE DATES)? 

     (C) AT WHAT ADDRESSES (LISTING THEM SPECIFICALLY)? 

     (INSERT DATE) 

     SWORN TO BEFORE ME THIS) . . . 

     DAY OF . . . 19 . . . )(AFFIANT TO SIGN HERE) 

     . . . 

     (ATTESTING OFFICER TO SIGN HERE) 

     . . . 

     (OFFICIAL DESIGNATION) 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

OF COURSE I AGREE THAT A STATE MAY REQUIRE THAT APPLICANTS AND
MEMBERS OF THE BAR POSSESS THE GOOD "CHARACTER AND GENERAL FITNESS
REQUISITE FOR AN ATTORNEY."  BUT IT MUST BE REMEMBERED THAT THE RIGHT
OF A LAWYER OR BAR APPLICANT TO PRACTICE HIS PROFESSION IS OFTEN MORE
VALUABLE TO HIM THAN HIS HOMES, HOWEVER EXPENSIVE THAT HOME MAY BE.
THEREFORE I THINK THAT WHEN A STATE SEEKS TO DENY AN APPLICANT
ADMISSION OR TO DISBAR A LAWYER, IT MUST PROCEED ACCORDING TO THE MOST
EXACTING DEMANDS OF DUE PROCESS OF LAW.  THIS MUST MEAN AT LEAST THAT
THE RIGHT OF A LAWYER OR BAR APPLICANT TO PRACTICE CANNOT BE LEFT TO
THE MERCIES OF HIS PROSPECTIVE OR PRESENT COMPETITORS.  WHEN IT SEEKS
TO DEPRIVE A PERSON OF THE RIGHT TO PRACTICE LAW, A STATE MUST ACCORD
HIM THE SAME RIGHTS AS WHEN IT SEEKS TO DEPRIVE HIM OF ANY OTHER
PROPERTY.  PERHAPS ALMOST ANYONE WOULD BE STUNNED IF A STATE SOUGHT TO
TAKE AWAY A MAN'S HOUSE BECAUSE HE FAILED TO PROVE HIS LOYALTY OR
REFUSED TO ANSWER QUESTIONS ABOUT HIS POLITICAL BELIEFS.  BUT IT SEEMS
TO ME THAT NEW YORK IS ATTEMPTING TO DEPRIVE PEOPLE OF THE RIGHT TO
PRACTICE LAW FOR PRECISELY THESE REASONS, AND THE COURT IS APPROVING
ITS ACTIONS. 

HERE THE COURT UPHOLDS A NEW YORK LAW WHICH REQUIRES THAT A BAR
APPLICANT NOT BE ADMITTED "UNLESS HE SHALL FURNISH SATISFACTORY PROOF"
THAT HE "BELIEVES IN THE FORM OF THE GOVERNMENT OF THE UNITED STATES
AND IS LOYAL TO SUCH GOVERNMENT."  RULE 9406, NEW YORK CIVIL PRACTICE
LAW AND RULES.  IT ALSO APPROVES CERTAIN QUESTIONS ABOUT POLITICAL
ASSOCIATIONS AND BELIEFS WHICH NEW YORK REQUIRES ALL APPLICANTS TO
ANSWER.  FROM THESE HOLDINGS I DISSENT. 

IN MY VIEW, THE FIRST AMENDMENT ABSOLUTELY PROHIBITS A STATE FROM
PENALIZING A MAN BECAUSE OF HIS BELIEFS.  AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382, 445 (1950) (BLACK, J., DISSENTING).  HENCE A
STATE CANNOT REQUIRE THAT AN APPLICANT'S BELIEF IN OUR FORM OF
GOVERNMENT BE ESTABLISHED BEFORE HE CAN BECOME A LAWYER.  AS MR.
JUSTICE ROBERTS SAID IN CANTWELL V. CONNECTICUT: 

"THUS THE AMENDMENT EMBRACES TWO CONCEPTS,-- FREEDOM TO BELIEVE AND
FREEDOM TO ACT.  THE FIRST IS ABSOLUTE BUT, IN THE NATURE OF THINGS,
THE SECOND CANNOT BE."  310 U.S. 296, 303-304 (1940). 

ASSUMING THAT A NEW YORK STATUTE COULD CONSTITUTIONALLY DELEGATE TO
A COMMITTEE OF LAWYERS THE POWER TO INTERROGATE APPLICANTS FOR THE BAR,
THE SPECIFIC QUESTIONS ASKED IN THIS CASE ARE FLATLY INCONSISTENT WITH
THE FIRST AMENDMENT.  QUESTIONS 26(A) AND 26(B) STATE: 

"(A) HAVE YOU EVER ORGANIZED OR HELPED TO ORGANIZE OR BECOME A

  MEMBER OF ANY ORGANIZATION OR GROUP OF PERSONS WHICH, DURING THE

  PERIOD OF YOUR MEMBERSHIP OR ASSOCIATION, YOU KNEW WAS ADVOCATING

  OR TEACHING THAT THE GOVERNMENT OF THE UNITED STATES OR ANY STATE

  OR ANY POLITICAL SUBDIVISION THEREOF SHOULD BE OVERTHROWN OR

  OVERTURNED BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS?  . . . IF

  YOUR ANSWER IS IN THE AFFIRMATIVE, STATE THE FACTS BELOW. 

      "(B) (DID YOU, DURING THE PERIOD OF SUCH MEMBERSHIP OR

  ASSOCIATION, HAVE THE SPECIFIC INTENT TO FURTHER THE AIMS OF SUCH

  ORGANIZATION OR GROUP OF PERSONS TO OVERTHROW OR OVERTURN THE

  GOVERNMENT OF THE UNITED STATES OR ANY STATE OR ANY POLITICAL

  SUBDIVISION THEREOF BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS?" 

I DO NOT THINK THAT A STATE CAN, CONSISTENTLY WITH THE FIRST
AMENDMENT, EXCLUDE AN APPLICANT BECAUSE HE HAS BELONGED TO
ORGANIZATIONS THAT ADVOCATE VIOLENT OVERTHROW OF THE GOVERNMENT, EVEN
IF HIS MEMBERSHIP WAS "KNOWING" AND HE SHARED THE ORGANIZATION'S AIMS. 
YATES V. UNITED STATES, 354 U.S. 298, 339 (1957) (BLACK, J., CONCURRING
AND DISSENTING).  AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382,
445 (1950) (BLACK, J.,DISSENTING).  THE FIRST AMENDMENT WAS INTENDED TO
MAKE SPEECH FREE FROM GOVERNMENT CONTROL, EVEN SPEECH WHICH IS
DANGEROUS AND UNPOPULAR.  AND INCLUDED WITHIN THE PROTECTION OF THE
FIRST AMENDMENT IS THE RIGHT OF ASSOCIATION; THE RIGHT TO JOIN
ORGANIZATIONS WHICH THEMSELVES ADVOCATE IDEAS.  NAACP V. LITTLE ROCK,
361 U.S. 516, 527 (1960) (BLACK, J., AND DOUGLAS, J., CONCURRING);
SCHNEIDER V. SMITH, 390 U.S. 17 (1968).  IT THEREFORE FOLLOWS FOR ME
THAT GOVERNMENTS SHOULD NOT BE ABLE TO ASK QUESTIONS DESIGNED TO
IDENTIFY PERSONS WHO HAVE BELONGED TO CERTAIN POLITICAL ORGANIZATIONS
AND THEN EXCLUDE THEM FROM THE PRACTICE OF LAW. 

QUESTION 27(B) ASKS:  "CAN YOU CONSCIENTIOUSLY, AND DO YOU, AFFIRM
THAT YOU ARE, WITHOUT ANY MENTAL RESERVATION, LOYAL TO AND READY TO
SUPPORT THE CONSTITUTION OF THE UNITED STATES?"  IN MY VIEW, THIS
QUESTION ALSO INVADES AREAS OF BELIEF PROTECTED BY THE FIRST AMENMENT. 
HERE THE STATE SEEKS TO PROBE AN APPLICANT'S STATE OF MIND TO ASCERTAIN
WHETHER HE IS "WITHOUT ANY MENTAL RESERVATION, LOYAL TO . . . THE
CONSTITUTION."  BUT ASKING ABOUT AN APPLICANT'S MENTAL ATTITUDE TOWARD
THE CONSTITUTION SIMPLY PROBES HIS BELIEFS, AND THESE ARE NOT THE
BUSINESS OF THE STATE.  CANTWELL V. CONNECTICUT, SUPRA; AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, SUPRA (BLACK, J., DISSENTING); CF. IN RE
SUMMERS, 325 U.S. 561, 573 (1945) (BLACK, J., DISSENTING).  FOR THESE
REASONS, I WOULD REVERSE THE JUDGMENT OF THE COURT BELOW. 

WHOLLY ASIDE FROM MY OWN VIEWS IN DISSENT ON WHAT THE FIRST
AMENDMENT DEMANDS, I DO NOT SEE HOW TODAY'S DECISION CAN BE RECONCILED
WITH OTHER DECISIONS OF THIS COURT, TO WHICH I SHALL REFER LATER.  THE
MAJORITY SEEKS TO AVOID THIS CONFLICT BY A PROCESS OF NARROWING
CONSTRUCTION.  IT STATES: 

"FIRST, THE RULE PLACES UPON APPLICANTS NO BURDEN OF PROOF.  SECOND,
'THE FORM OF THE GOVERNMENT OF THE UNITED STATES' AND THE 'GOVERNMENT'
REFER SOLELY TO THE CONSTITUTION, WHICH IS ALL THAT THE OATH MENTIONS. 
THIRD, 'BELIEF' AND 'LOYALTY' MEAN NO MORE THAN WILLINGNESS TO TAKE THE
CONSTITUTIONAL OATH AND ABILITY TO DO SO IN GOOD FAITH."  ANTE, AT
163.  THUS DESPITE THE NEW YORK LAW'S COMMAND THAT NO APPLICANT SHALL
BE AOMITTED "UNLESS HE SHALL FURNISH SATISFACTORY PROOF" OF HIS BELIEF
AND LOYALTY, THE COURT HOLDS THAT THIS LAW PLACES ON HIM NO BURDEN OF
PROOF.  THE COURT SEEMS TO ASSERT THAT THIS "CONSTRUCTION" AVOIDS THE
PROBLEMS POSED BY SPEISER V. RANDALL, 357 U.S. 513 (1958), WHERE WE
HELD THAT TAXPAYERS IN ORDER TO OBTAIN TAX EXEMPTIONS COULD NOT BE MADE
TO BEAR THE BURDEN OF PROVING THAT THEY DID NOT ADVOCATE VIOLENT
OVERTHROW OF THE GOVERNMENT.  WE THERE POINTED OUT THAT SUCH AN
ALLOCATION OF THE BURDEN OF PROOF "CAN ONLY RESULT IN A DETERRENCE OF
SPEECH WHICH THE CONSTITUTION MAKES FREE" BECAUSE THE "MAN WHO KNOWS
THAT HE MUST BRING FORTH PROOF AND PERSUADE ANOTHER OF THE LAWFULNESS
OF HIS CONDUCT NECESSARILY MUST STEER FAR WIDER OF THE UNLAWFUL ZONE
THAN IF THE STATE MUST BEAR THESE BURDENS."  ID., AT 526.  I DO NOT
BELIEVE THE COURT'S NARROWING CONSTRUCTION HERE AVOIDS THE FORCE OF
SPEISER FOR IN THIS CASE THE DISTRICT COURT DETERMINED, AND THE
APPELLEES DO NOT CONTEND OTHERWISE, THAT THE NEW YORK LAW PLACES ON THE
APPLICANT A BURDEN OF "COMING FORWARD WITH SOME EVIDENCE" TO SATISFY
THE COMMITTEE.  299 F.SUPP.  117, 147.  IN MY VIEW, EVEN THIS SHIFTING
OF THE BURDEN OF COMING FORWARD IS IMPERMISSIBLE IN LIGHT OF SPEISER V.
RANDALL.  THE COURT HELD IN SPEISER THAT THE DEFECT IN THE CALIFORNIA
PROCEDURE WAS NOT ONLY THAT THE APPLICANT BORE THE FINAL BURDEN OF
PERSUASION BUT THAT "WHEN THE CONSTITUTIONAL RIGHT TO SPEAK IS SOUGHT
TO BE DETERRED BY A STATE'S GENERAL TAXING PROGRAM DUE PROCESS DEMANDS
THAT THE SPEECH BE UNENCUMBERED UNTIL THE STATE COMES FORWARD WITH
SUFFICIENT PROOF TO JUSTIFY ITS INHIBITION."  ID., AT 528-529. 
ALTHOUGH THAT CASE DEALT WITH A TAX EXEMPTION APPLICABLE TO VETERANS, I
CAN SEE NO REASON WHY THE FIRST AMENDMENT SHOULD OFFER ANY LESS
PROTECTION TO APPLICANTS FOR ADMISSION TO THE BAR.  IF THERE IS TO BE
ANY DIFFERENCE AT ALL, I SHOULD THINK A MAN'S RIGHT TO PRACTICE A
PROFESSION SHOULD BE ACCORDED GREATER PROTECTION THAN HIS RIGHT TO A
TAX EXEMPTION. 

IN PART III OF ITS OPINION THE COURT HOLDS THAT NEW YORK MAY DEMAND
AN ANSWER TO QUESTION 27(B) WHICH ASKS WHETHER THE APPLICANT IS LOYAL
TO THE CONSTITUTION "WITHOUT ANY MENTAL RESERVATION."  /1/  THE
MAJORITY REASONS THAT AN ANSWER TO THIS QUESTION MAY BE REQUIRED
BECAUSE IT ASSISTS THE COMMITTEE IN ASSESSING "THE GOOD FAITH WITH
WHICH AN APPLICANT CAN TAKE THE CONSTITUTIONAL OATH."  THIS
CONSTITUTIONAL OATH REFERRED TO IS SIMPLY A PLEDGE THAT THE APPLICANT
WILL "SUPPORT THE CONSTITUTION OF THE UNITED STATES" AND THAT OF NEW
YORK.  I HAVE NO DOUBT WHATSOEVER ABOUT THE VALIDITY OF THIS OATH.  SEE
KNIGHT V. BOARD OF REGENTS, 269 F.SUPP.  339 (SDNY 1967), AFF'D PER
CURIAM, 390 U.S. 36 (1968).  BUT THE ISSUE HERE IS WHETHER NEW YORK CAN
CONDUCT AN INQUISITION INTO AN APPLICANT'S BELIEFS HOPING TO DISCREDIT
THE SINCERITY OF HIS OATH. 

THE QUESTION REQUIRES AN APPLICANT TO AFFIRM THAT HE HOLDS A CERTAIN
BELIEF, NAMELY THAT HE IS "LOYAL" "WITHOUT ANY MENTAL RESERVATION . . .
TO . . . THE CONSTITUTION."  THIS REQUIREMENT IS A QUITE DIFFERENT
THING FROM NEW YORK'S CONSTITUTIONAL OATH, WHICH IS SIMILAR TO THAT
REQUIRED OF THE PRESIDENT AND OF APPLICANTS FOR ADMISSION TO THE BAR OF
THIS COURT.  THE LATTER ARE PROMISSORY OATHS IN WHICH THE DECLARANT
PROMISES THAT HE WILL PERFORM CERTAIN DUTIES IN THE FUTURE.  BUT
QUESTION 27(B) DOES NOT REQUIRE A PROMISE OF FUTURE ACTION.  IT DEMANDS
THAT AN APPLICANT SWEAR THAT HE HOLDS A CERTAIN BELIEF AT THAT VERY
MOMENT, LOYALTY TO THE CONSTITUTION "WITHOUT ANY MENTAL RESERVATION." 
ASIDE FROM THE SERIOUS VAGUENESS PROBLEMS WHICH INHERE IN AN OATH THAT
ONE IS "LOYAL" "WITHOUT ANY MENTAL RESERVATION," CF. BAGGETT V.
BULLITT, 377 U.S. 360 (1964), THIS IS AN ATTEMPT TO DENY ADMISSION TO
THE BAR FOR FAILURE TO HOLD A CERTAIN BELIEF.  AND WE HAVE CONSISTENTLY
HELD THAT THE FIRST AMENDMENT FORBIDS A STATE TO IMPOSE A SANCTION OR
WITHHOLD A BENEFIT BECAUSE OF WHAT A MAN BELIEVES.  BAIRD V. STATE BAR
OF ARIZONA, ANTE, P. 1, AT 6-7, ID., AT 9 (STEWART, J., CONCURRING IN
JUDGMENT); WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624
(1943); CANTWELL V. CONNECTICUT, SUPRA. 

THE MAJORITY'S REASONING THAT QUESTION 27(B) MAY BE EMPLOYED TO TEST
AN APPLICANT'S SINCERITY ALSO FLATLY IGNORES OUR UNANIMOUS HOLDING IN
BOND V. FLOYD, 385 U.S. 116 (1966).  THERE THE GEORGIA HOUSE OF
REPRESENTATIVES EXCLUDED DULY ELECTED MEMBER JULIAN BOND ON THE GROUNDS
THAT HIS STATEMENTS CRITICIZING THE VIETNAM WAR GAVE "AID AND COMFORT
TO THE ENEMIES OF THE UNITED STATES" AND SHOWED HE DID NOT SUPPORT THE
CONSTITUTION.  ID., AT 125.  WE HELD THAT EXCLUSION ON THESE GROUNDS
VIOLATED BOND'S FIRST AMENDMENT RIGHTS.  THE APPELLEES THERE ARGUED
STRENUOUSLY THAT THE FIRST AMENDMENT DID NOT DEPRIVE THEM OF POWER TO
TEST BOND'S "SINCERITY."  A THREE-JUDGE FEDERAL DISTRICT COURT, ONE
JUDGE DISSENTING, HAD ACCEPTED THE APPELLEES' THEORY.  251 F.SUPP.  333
(1066).  BUT WE REVERSED THE COURT BELOW ON THE GROUND THAT THE
EXISTENCE OF AN OATH OF OFFICE: 

"DOES NOT AUTHORIZE A MAJORITY OF STATE LEGISLATORS TO TEST THE
SINCERITY WITH WHICH ANOTHER DULY ELECTED LEGISLATOR CAN SWEAR TO
UPHOLD THE CONSTITUTION.  SUCH A POWER COULD BE UTILIZED TO RESTRICT
THE RIGHT OF LEGISLATORS TO DISSENT FROM NATIONAL OR STATE POLICY OR
THAT OF A MAJORITY OF THEIR COLLEAGUES UNDER THE GUISE OF JUDGING THEIR
LOYALTY TO THE CONSTITUTION."  385 U.S.,AT 132 THE MAJORITY OFFERS NO
REASON WHY A "SINCERITY TEST"  MAY BE APPLIED TO NEW YORK BAR
APPLICANTS WHEN IT MAY NOT BE APPLIED TO GEORGIA LEGISLATORS. 

PERHAPS THE MAJORITY CONSIDERS IT RELEVANT THAT NEW YORK HAS NOT YET
ACTUALLY EXCLUDED A BAR APPLICANT BECAUSE OF HIS LACK OF "SINCERITY"
AND PERHAPS WOULD NOT PERMIT SUCH AN EXCLUSION.  CERTAINLY THE
UNANIMOUS HOLDING IN BOND SEEMS TO COMPEL THE CONCLUSION THAT IT WOULD
NOT APPROVE DENIAL OF ADMISSION TO THE NEW YORK BAR BECAUSE OF
INSINCERE OATH TAKING.  YET THE MAJORITY OPINION SEEMS TO INDICATE THAT
SUCH EXCLUSION IS PERMISSIBLE.  AND IF NEW YORK CANNOT CONSTITUTIONALLY
USE THE RESULTS OF ITS "SINCERITY TEST" TO EXCLUDE AN APPLICANT, WHAT
VALID STATE INTEREST CAN POSSIBLY BE SERVED BY THIS INQUIRY INTO AN
APPLICANT'S BELIEFS?  BAIRD V. STATE BAR OF ARIZONA, SUPRA, AT 6-7;
GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S. 539
(1963). 

THE ONLY OTHER POSSIBLE GROUND I CAN SEE FOR THE MAJORITY'S FAILURE
TO FOLLOW BOND V. FLOYD IS THAT IT FEELS A STATE LEGISLATOR'S FIRST
AMENDMENT RIGHTS ARE MORE WORTHY OF PROTECTION THAN THOSE OF AN
APPLICANT TO THE BAR.  IF OUR FORM OF REPRESENTATIVE GOVERNMENT IS TO
FUNCTION AS THE FRAMERS OF OUR FEDERAL AND STATE CONSTITUTIONS
INTENDED, THE RIGHT OF LEGISLATORS TO DISSENT FREELY IS ESSENTIAL.  BUT
THE FRAMERS OF THE FIRST AMENDMENT INTENDED ALSO THAT ITS PROTECTION
SHOULD EXTEND NTO TO SOME LIMITED GROUPS BUT TO ALL CITIZENS.  JUST AS
A DEMOCRATIC SOCIETY NEEDS LEGISLATORS WILLING AND ABLE TO CRITICIZE
NATIONAL AND STATE POLICY, SO IT NEEDS LAWYERS WHO WILL DEFEND
UNPOPULAR CAUSES AND CHAMPION UNPOPULAR CLIENTS.  AS I HAVE POINTED OUT
IN ANOTHER CASE INVOLVING REQUIREMENTS FOR ADMISSION TO THE BAR,
SOCIETY NEEDS MEN IN THE LEGAL PROFESSION 

"LIKE CHARLES EVANS HUGHES, SR., LATER MR. CHIEF JUSTICE HUGHES, WHO
STOOD UP FOR THE CONSTITUTIONAL RIGHTS OF SOCIALISTS TO BE SOCIALISTS
AND PUBLIC OFFICIALS DESPITE THE THREATS AND CLAMOROUS PROTESTS OF SELF
PROCLAIMED SUPER PATRIOTS-- MEN LIKE CHARLES EVANS HUGHES, JR., AND
JOHN W. DAVIS, WHO, WHILE AGAINST EVERYTHING FOR WHICH THE COMMUNISTS
STOOD, STRONGLY ADVISED THE CONGRESS IN 1948 THAT IT WOULD BE
UNCONSTITUTIONAL TO PASS THE LAW THEN PROPOSED TO OUTLAW THE COMMUNIST
PARTY-- MEN LIKE LORD ERSKINE, JAMES OTIS, CLARENCE DARROW, AND THE
MULTITUDE OF OTHERS WHO HAVE DARED TO SPEAK IN DEFENSE OF CAUSES AND
CLIENTS WITHOUT REGARD TO PERSONAL DANGER TO THEMSELVES.  THE LEGAL
PROFESSION WILL LOSE MUCH OF ITS NOBILITY AND ITS GLORY IF IT IS NOT
CONSTANTLY REPLENISHED WITH LAWYERS LIKE THESE.  TO FORCE THE BAR TO
BECOME A GROUP OF THOROUGHLY ORTHODOX, TIME-SERVING, GOVERNMENT-FEARING
INDIVIDUALS IS TO HUMILIATE AND DEGRADE IT."  IN RE ANASTAPLO, 366 U.S.
82, 115-116 (1961) (BLACK, J., DISSENTING). 

THE COURT ALSO HOLDS THAT NEW YORK MAY REQUIRE APPLICANTS TO ANSWER
QUESTIONS 26(A) AND 26(B), WHICH INQUIRE ABOUT THEIR ASSOCIATIONAL
ACTIVITIES AND WHICH HAVE BEEN SET OUT IN FULL, SUPRA, AT 175.  I FAIL
TO SEE HOW THE MAJORITY'S APPROVAL OF THESE QUESTIONS CAN BE RECONCILED
WITH BAIRD V. STATE BAR OF ARIZONA, SUPRA, AND IN RE STOLAR, ANTE, P.
23.  THE MAJORITY'S CONCLUSION THAT THESE QUESTIONS DO NOT VIOLATE THE
FIRST AMENDMENT SEEMS TO BE BASED ON THE ASSUMPTION THAT THE STATE MAY
PUNISH A MAN FOR KNOWING MEMBERSHIP IN AN ORGANIZATION WHICH ADVOCATES
VIOLENT OVERTHROW OF THE GOVERNMENT IF HE SPECIFICALLY INTENDS TO BRING
ABOUT SUCH OVERTHROW.  ON THIS ASSUMPTION, THE MAJORITY APPEARS TO
CONCLUDE THAT SINCE SUCH CONDUCT IS CRIMINALLY PUNISHABLE, THE STATE
MAY INQUIRE ABOUT IT IN ORDER TO EXCLUDE AN INDIVIDUAL WHO HAS BEEN A
MEMBER OF ONE OF THESE ORGANIZATIONS WITH THE REQUISITE INTENT. 

IN BAIRD V. STATE BAR OF ARIZONA AND IN RE STOLAR, WE HOLD TODAY
THAT STATES MAY NOT REQUIRE AN APPLICANT TO THE BAR TO ANSWER THE
QUESTION "HAVE YOU BEEN A MEMBER OF ANY ORGANIZATION THAT ADVOCATES
OVERTHROW OF THE GOVERNMENT BY FORCE?"  OHIO RECOGNIZED IN STOLAR THAT
IT COULD NOT EXCLUDE AN APPLICANT UNLESS HE HAD KNOWLEDGE OF THE
ORGANIZATION'S AIMS AT THE TIME OF HIS MEMBERSHIP.  HOWEVER, IT ARGUED
THAT ITS QUESTION WAS APPROPRIATE BECAUSE IT WAS MERELY A PRELUDE TO
DETERMING WHETHER PETITIONER WAS A "KNOWING" MEMBER.  WE REJECTED THAT
ARGUMENT, AND HELD THAT THE FIRST AMENDMENT BARRED OHIO FROM DEMANDING
AN ANSWER TO THAT QUESTION WHICH REQUIRED AN APPLICANT TO SUPPLY
INFORMATION ABOUT POLITICAL ACTIVITIES PROTECTED BY THE FIRST
AMENDMENT.  IN RE STOLAR, SUPRA, AT 30, AND SEE ID., AT 31 (STEWART,
J., CONCURRING IN JUDGMENT).  HERE THE MAJORITY SEEMS TO CONCEDE THAT
NEW YORK COULD NOT POSSIBLY EXCLUDE AN APPLICANT UNLESS HE HAD BEEN A
MEMBER OF AN ORGANIZATION ADVOCATING FORCIBLE OVERTHROW, HE KNEW OF
THESE AIMS, AND HE HAD A SPECIFIC INTENT TO HELP BRING THEM ABOUT. 
ANTE, AT 165-166.  SINCE EVEN ON THE MAJORITY'S THEORY NEW YORK CANNOT
EXCLUDE AN APPLICANT UNLESS ALL THESE REQUIREMENTS ARE MET, WHY IS THE
STATE PERMITTED TO ASK QUESTION 26(A) WHICH MAKES NO REFERENCE TO
"SPECIFIC INTENT"?  IN BAIRD AND STOLAR FIVE MEMBERS OF THE COURT
AGREED THAT QUESTIONS ASKED BY BAR ADMISSIONS COMMITTEES WERE INVALID
BECAUSE THEY INQUIRED ABOUT ACTIVITIES PROTECTED BY THE FIRST
AMENDMENT.  WHY THEN IS THE SAME RESULT NOT REQUIRED HERE?     IT MAY
BE ARGUED, OF COURSE, THAT QUESTION 26 IS SUFFICIENTLY SPECIFIC UNDER
THE MAJORITY'S STANDARD BECAUSE PARTS (A) AND (B) TAKEN TOGETHER DO
INCLUDE A "SPECIFIC INTENT" REQUIREMENT.  BUT THE COURT'S HOLDING
PERMITS THE KNOWLEDGE AND SPECIFIC INTENT ELEMENTS OF QUESTION 26 TO BE
SPLIT INTO TWO PARTS.  THIS ALLOWS THE STATE TO FORCE AN APPLICANT TO
SUPPLY INFORMATION ABOUT HIS ASSOCIATIONS, WHICH, EVEN UNDER THE
MAJORITY'S RATIONALE, ARE PROTECTED BY THE FIRST AMENDMENT. 

BUT EVEN IF QUESTIONS 26(A) AND 26(B) WERE COMBINED INTO ONE
QUESTION, THIS WOULD NOT SATISFY THE STANDARDS SET BY THE COURT IN
UNITED STATES V. ROBEL, 389 U.S. 258 (1967), AND BRANDENBURG V. OHIO,
395 U.S. 444 (1969).  ROBEL INVOLVED A SECTION OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT BARRING MEMBERS OF "COMMUNIST-ACTION"
ORGANIZATIONS FROM DEFENSE EMPLOYMENT.  THE SECTION WAS STRUCK DOWN FOR
OVERBREADTH BECAUSE IT SOUGHT "TO BAR EMPLOYMENT BOTH FOR ASSOCIATION
WHICH MAY BE PROSCRIBED AND FOR ASSOCIATION WHICH MAY NOT BE PROSCRIBED
CONSISTENTLY WITH FIRST AMENDMENT RIGHTS."  389 U.S.,AT 266.  THUS THE
STATUTE WAS FOUND DEFECTIVE BECAUSE IT PURPORTED TO BAR PERSONS ON
ACCOUNT OF MEMBERSHIP WITHOUT REGARD TO WHETHER THEY HAD BEEN KNOWING
MEMBERS AND HAD AN INTENT TO OVERTHROW THE GOVERNMENT.  IN THAT CASE WE
HELD THE FEDERAL GOVERNMENT COULD NOT BAR A MAN FROM PRIVATE EMPLOYMENT
IN DEFENSE FACILITIES UNLESS HE HAD ENGAGED IN CONDUCT WHICH COULD BE
CRIMINALLY PROSCRIBED.  WE RECOGNIZED THAT BANNING A MAN FROM
EMPLOYMENT IS A FORM OF CIVIL PUNISHMENT WHICH MUST MEET THE
REQUIREMENTS OF THE FIRST AMENDMENT.  CF. KEYISHIAN V. BOARD OF
REGENTS, 385 U.S. 589 (1967).  AND IN BRANDENBURG V. OHIO, SUPRA, A
UNANIMOUS COURT MADE CLEAR THAT ASSOCIATION WITH A GROUP TO ADVOCATE
VIOLENCE CANNOT BE PUNISHED CONSISTENTLY WITH THE FIRST AMENDMENT.  IN
BRANDENBURG WE STRUCK DOWN AN OHIO STATUTE WHICH PURPORTED TO MAKE
CRIMINAL THE ACT OF ASSOCIATING WITH AN ASSEMBLY TO ADVOCATE VIOLENCE
TO ACHIEVE POLITICAL REFORM.  THE COURT HELD THAT ADVOCACY OF VIOLENCE
OR THE JOINING WITH OTHERS TO DO SO COULD NOT BE PROSCRIBED "EXCEPT
WHERE SUCH ADVOCACY IS DIRECTED TO INCITING OR PRODUCING IMMINENT
LAWLESS ACTION AND IS LIKELY TO INCITE OR PRODUCE SUCH ACTION."  ID.,
AT 447.  CLEARLY THE NEW YORK QUESTIONS ARE NOT NEARLY SO NARROWLY
DRAWN.  NEW YORK SEEKS TO INQUIRE ABOUT MEMBERSHIP IN ORGANIZATIONS
ADVISING OR TEACHING VIOLENT OVERTHROW, FOR THE PURPOSE OF EXCLUDING
PERSONS WHO KNOWINGLY BELONG TO SUCH ORGANIZATIONS WITH THE REQUISITE
INTENT.  SEE BRIEF FOR APPELLEES 14-15.  HOWEVER, IT DOES NOT SPECIFY
THAT THE ORGANIZATION'S ADVOCACY MUST HAVE BEEN "DIRECTED TO INCITING
OR PRODUCING IMMINENT LAWLESS ACTION" AND "LIKELY TO . . . PRODUCE SUCH
ACTION."  THUS, FOR THEIR FAILURE TO MEET THE BRANDENBURG REQUIREMENTS,
THE NEW YORK QUESTIONS ARE OVERBROAD.  AFTER OUR DECISION IN ROBEL, IT
SHOULD MAKE NO DIFFERENCE THAT NEW YORK THREATENS TO EXCLUDE PEOPLE
FROM THEIR CHOSEN LIVELIHOOD RATHER THAN TO PUT THEM IN JAIL. 

PERHAPS THE MAJORITY FAILS TO RECOGNIZE THE FORCE OF ROBEL AND
BRANDENBURG BECAUSE BAR APPLICANTS SEEK TO BECOME MEMBERS OF A
PROFESSION VERY IMPORTANT TO THE WELFARE OF SOCIETY; IN THE MAJORITY'S
WORDS, A PROFESSION "DEDICATED TO THE PEACEFUL AND REASONED SETTLEMENT
OF DISPUTES BETWEEN MEN, AND BETWEEN A MAN AND HIS GOVERNMENT."  ANTE,
AT 166.  UNFORTUNATELY, THERE IS SOME SUPPORT IN OUR PAST DECISIONS FOR
THE PROPOSITION THAT LAWYERS ARE SUCH A SPECIAL GROUP THAT THEY SHOULD
NOT ENJOY THE FULL MEASURE OF CONSTITUTIONAL RIGHTS ACCORDED OTHER
CITIZENS.  SEE, E.G., COHEN V. HURLEY, 366 U.S. 117 (1961), WHERE THIS
COURT HELD THAT A NEW YORK LAWYER COULD BE DISBARRED SOLELY FOR RELYING
ON THIS PRIVILEGE AGAINST SELF-INCRIMINATION AND REFUSING TO ANSWER
CERTAIN QUESTIONS IN A STATE INVESTIGATION OF PROFESSIONAL MISCONDUCT. 
BUT I HAD THOUGHT THAT ANY SUCH THEORY WAS CLEARLY REPUDIATED BY OUR
DECISION IN SPEVACK V. KLEIN, 385 U.S. 511 (1967), WHICH EXPRESSLY
OVERRULED COHEN.  IN SPEVACK WE HELD THAT NEW YORK COULD NOT DISBAR AN
ATTORNEY FOR TAKING THE FIFTH AMENDMENT IN A DISCIPLINARY PROCEEDING,
AND WE STATED: 

"LIKE THE SCHOOL TEACHER IN SLOCHOWER V. BOARD OF EDUCATION, 350
U.S. 551, AND THE POLICEMEN IN GARRITY V. NEW JERSEY (385 U.S. 493)
LAWYERS ALSO ENJOY FIRST-CLASS CITIZENSHIP."  385 U.S.,AT 516. 

I ADD ONLY A FEW WORDS, SPEAKING AS A MEMBER OF THE BAR.  QUITE
OBVIOUSLY, ITS MEMBERS SHOULD BE MEN OF HIGH CHARACTER AND ABILITY SO
THAT THE BAR CAN FULFILL THE ENORMOUS RESPONSIBILITIES THAT FACE IT.
AT THE SAME TIME, ITS MEMBERS AND THOSE WHO ASPIRE TO MEMBERSHIP SHOULD
NOT BE DISCIPLINED OR DENIED ADMISSION WITHOUT FULL AND UNQUESTIONED
DUE PROCESS OF LAW AND PROTECTION OF ALL THEIR CONSTITUTIONAL RIGHTS. 
DISCIPLINE OR DENIAL OF ADMISSION SHOULD ONLY TAKE PLACE AFTER NOTICE
AND HEARING BEFORE AN UNQUESTIONABLY IMPARTIAL TRIBUNAL.  I MUST REPEAT
ONCE AGAIN THAT CONSISTENTLY WITH DUE PROCESS OF LAW, APPLICANTS FOR A
PROFESSION CANNOT BE TURNED OVER TO THE WHIM OF THEIR PROSPECTIVE
COMPETITORS TO DETERMINE THEIR RIGHT TO PRACTICE.  I THINK THE DISTRICT
COURT DID MAGNIFICENT SERVICE IN STRIPPING THE NEW YORK BAR OF MUCH OF
ITS UNBRIDLED POWER OVER THE ADMISSION OF NEW MEMBERS.  MY ONLY REGRET
IS THAT IT DID NOT STRIP IT FURTHER. 

FOR THE FOREGOING REASONS I RESPECTFULLY DISSENT FROM THE JUDGMENT
OF THE COURT. 

/1/  THE QUESTION IS SET OUT IN FULL, ANTE, AT 165. 

MR. JUSTICE MARSHALL, WHOM MR. JUSTICE BRENNAN JOINS, DISSENTING. 

THIS LITIGATION BEGAN WITH A COMPREHENSIVE CONSTITUTIONAL ATTACK BY
APPELLANTS ON LONGSTANDING STATE RULES AND PRACTICES FOR SCREENING
APPLICANTS FOR ADMISSION TO THE NEW YORK BAR.  /1/  DURING THE COURSE
OF THE LITIGATION SOME OF THESE PRACTICES WERE CHANGED BY APPELLEES;
OTHERS WERE FOUND WANTING BY THE THREE-JUDGE COURT BELOW, AND CHANGED
AS A RESULT OF THAT COURT'S OPINION AND ITS FINAL ORDER.  NOW WE FACE
THE RESIDUUM OF THE APPELLANTS' ORIGINAL CHALLENGE, AND THE COURT TODAY
RATIFIES EVERYTHING LEFT STANDING BY THE COURT BELOW.  I DISSENT FROM
THAT HOLDING BECAUSE I BELIEVE THAT APPELLANTS' BASIC FIRST AMENDMENT
COMPLAINT, TRANSCENDING THE PARTICULARS OF THE ATTACK, RETAINS ITS
VALIDITY.  THE UNDERLYING COMPLAINT, STRENUOUSLY AND CONSISTENTLY
URGED, IS THAT NEW YORK'S SCREENING SYSTEM FOCUSES IMPERMISSIBLY ON THE
POLITICAL ACTIVITIES AND VIEWPOINTS OF BAR APPLICANTS, THAT THE SCHEME
THEREBY OPERATES TO INHIBIT THE EXERCISE OF PROTECTED EXPRESSIVE AND
ASSOCIATIONAL FREEDOMS BY LAW STUDENTS AND OTHERS, AND THAT THIS
CHILLING EFFECT IS NOT JUSTIFIED AS THE NECESSARY IMPACT OF A SYSTEM
DESIGNED TO WINNOW OUT THOSE APPLICANTS DEMONSTRABLY UNFIT TO PRACTICE
LAW. 

AS AN ABSTRACT MATTER I DO NOT TAKE ISSUE WITH THE PROPOSITION THAT
SOME INQUIRY INTO THE QUALIFICATIONS OF BAR APPLICANTS MAY BE MADE,
BEYOND SUCH OBVIOUS THRESHOLD QUALIFICATIONS AS RESIDENCE OR SUCCESS IN
A REGULARLY ADMINISTERED WRITTEN EXAMINATION.  ACCORDINGLY, I WOULD NOT
UPSET THE GENERAL RULES WHICH CHARTER AN INQUIRY AS TO THE "FITNESS" OF
APPLICANTS, ABSENT A SHOWING NOT MADE HERE, THAT IN PRACTICE THE
GENERAL RULES WORK AN IMPERMISSIBLE RESULT.  BUT THIS IS HARDLY THE END
OF THE CASE.  FOR NEW YORK IS NOT CONTENT WITH A POLITICALLY NEUTRAL
INVESTIGATION INTO THE FITNESS OF BAR APPLICANTS TO PRACTICE LAW. 
SCREENING OFFICIALS ARE SPECIFICALLY DIRECTED BY STATE LAW TO ASSESS AN
APPLICANT'S POLITICAL BELIEFS AND LOYALTIES, AND TO SCRUTINIZE HIS
ASSOCIATIONAL AND OTHER POLITICAL ACTIVITIES FOR SIGNS THAT THE
APPLICANT HOLDS CERTAIN VIEWPOINTS.  SUCH AN INQUIRY, IN MY VIEW,
FLATLY OFFENDS THE FIRST AMENDMENT, AND STATE LAWS OR ADMINISTRATIVE
RULES THAT LICENSE SUCH AN INQUIRY MUST BE STRUCK DOWN. 

RULE 9406 OF THE NEW YORK CIVIL PRACTICE LAW AND RULES PRESCRIBES:
"NO PERSON . . . SHALL BE ADMITTED TO PRACTICE . . . UNLESS HE SHALL
FURNISH SATISFACTORY PROOF TO THE EFFECT . . . THAT HE BELIEVES IN THE
FORM OF THE GOVERNMENT OF THE UNITED STATES AND IS LOYAL TO SUCH
GOVERNMENT . . . "  /2/  THE COURT RIGHTLY NOTES THAT RULE 9406 IS
ADDRESSED TO THE APPELLEES, THAT IS, TO THE INVESTIGATING COMMITTEES
WHICH PASS IN THE FIRST INSTANCE ON APPLICATIONS FOR ADMISSION, AND
ALSO TO THE RELEVANT JUDICIAL DEPARTMENT OF THE APPELLATE DIVISION OF
THE NEW YORK SUPREME COURT.  APPELLEES, PURSUANT TO RULE 9406, REQUIRE
BAR APPLICANTS TO ANSWER A QUESTIONNAIRE NOW CONTAINING TWO QUESTIONS
DESIGNED TO UNCOVER INFORMATION ABOUT AN APPLICANT'S POLITICAL
LOYALTIES AND ASSOCIATIONAL AFFILIATIONS.  QUESTION 27, /3/  SET FORTH
IN THE MARGIN, IS ONE NATURAL CONSEQUENCE OF RULE 9406-- PART (B) OF
QUESTION 27 COMMANDS AN APPLICANT TO TELL WHETHER HE IS "WITHOUT ANY
MENTAL RESERVATION, LOYAL TO AND READY TO SUPPORT THE CONSTITUTION." 
QUESTION 26 /4/  REQUIRES AN APPLICANT TO "STATE THE FACTS" CONCERNING
HIS AFFILIATION WITH ANY ORGANIZATION WHICH HE KNEW TO ADVOCATE
POLITICAL CHANGE "BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS."  UNDER THE
SCHEME SET IN OPERATION BY RULE 9406, APPELLEES' JOB IS TO EVALUATE ALL
THE INFORMATION TURNED UP BY THE QUESTIONNAIRE, BY REQUIRED AFFIDAVITS,
BY A PERSONAL INTERVIEW WITH THE APPLICANT, AND BY OTHER MEANS, AND
THEN TO DETERMINE WHETHER AN APPLICANT HAS MADE "SATISFACTORY PROOF" OF
THE SPECIFIED POLITICAL BELIEFS AND LOYALTIES. 

I HAVE NO DOUBT WHATEVER THAT RULE 9406, IF READ TO MEAN WHAT IT
SAYS, MUST FALL AS VIOLATIVE OF SETTLED CONSTITUTIONAL PRINCIPLES, OR
THAT ANY INQUISITION DESIGNED TO IMPLEMENT A RULE SO WRITTEN MUST
EQUALLY BE BARRED.  RULE 9406 DIRECTS SCREENING OFFICIALS TO PROBE THE
CONTENTS OF AN INDIVIDUAL'S POLITICAL PHILOSOPHY IN ORDER TO ASCERTAIN
WHETHER HE ENTERTAINS CERTAIN BELIEFS AS A MATTER OF PERSONAL FAITH. 
THE RULE, WHICH CHARTERS AN INQUISITION, FASTENS, NOT UPON OVERT
CONDUCT, NOR EVEN ON ACTIVITIES THAT INCIDENTALLY INVOLVE THE PUBLIC
EXPOSURE OR ADVOCACY OF IDEAS, BUT ON PERSONAL BELIEF ITSELF.  YET IT
IS A SETTLED PRINCIPLE OF OUR CONSTITUTIONAL ORDER THAT, WHATEVER MAY
BE THE LIMITS OF THE FREEDOM TO ACT ON ONE'S CONVICTIONS, THE FREEDOM
TO BELIEVE WHAT ONE WILL "IS ABSOLUTE."  CANTWELL V. CONNECTICUT, 310
U.S. 296, 303 (1940).  AS WE SAID NOT LONG AGO IN STANLEY V. GEORGIA,
394 U.S. 557, 565 (1969), "OUR WHOLE CONSTITUTIONAL HERITAGE REBELS AT
THE THOUGHT OF GIVING GOVERNMENT THE POWER TO CONTROL MEN'S MINDS." 
THE PREMISE THAT PERSONAL BELIEFS ARE INVIOLATE IS FUNDAMENTAL TO THE
CONSTITUTIONAL SCHEME AS A WHOLE, SEE OLMSTEAD V. UNITED STATES, 277
U.S. 438, 478 (1928) (BRANDEIS, J., DISSENTING), AND THE PREMISE IS NOT
QUESTIONED EVEN IN CASES WHERE THIS COURT HAS DIVIDED SHARPLY OVER THE
EXTENT OF THE FIRST AMENDMENT'S PROTECTIONS.  SEE, E.G., AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 412 (1950) (VINSON, C. J.,
FOR THE COURT), AND ID., AT 446-448 (BLACK, J., DISSENTING).  IN THE
PRESENT CASE WE HAVE A RULE OF NEW YORK LAW WHICH, AS WRITTEN,
SANCTIONS SYSTEMATIC INQUIRY INTO THE BELIEFS OF BAR APPLICANTS, AND
EXCLUDES FROM THE PRACTICE OF LAW PERSONS HAVING BELIEFS THAT ARE NOT
OFFICIALLY APPROVED.  /5/  THIS INQUIRY AND THIS CRITERION FOR
EXCLUSION ARE IMPERMISSIBLE.  HOWEVER WAYWARD OR UNORTHODOX A MAN'S
POLITICAL BELIEFS MAY BE, HE MAY NOT BE KEPT OUT OR DRUMMED OUT OF THE
BAR OR ANY OTHER PROFESSION ON THAT ACCOUNT. 

THE COURT PURPORTS NOT TO UPHOLD-- NOT TO PASS UPON-- RULE 9406
UNVARNISHED.  WHILE CONCEDING THAT THE RULE, AS IT HAS BEEN WRITTEN, IS
CONSTITUTIONALLY PROBLEMATICAL, THE COURT ASSERTS THAT IT SHOULD BE
JUDGED IN LIGHT OF THE "EXTREMELY NARROW" INTERPRETATION PROFFERED BY
APPELLEES, WHO ARE CHARGED WITH ADMINISTERING THE INVESTIGATORY SCHEME
CONTEMPLATED BY THE RULE.  ACCORDING TO THE PROPOSED ADMINISTRATIVE
CONSTRUCTION, RULE 9406 MERELY DIRECTS APPELLEES TO DISCOVER WHETHER A
BAR APPLICANT IS WILLING AND ABLE TO PROMISE THAT HE WILL SUPPORT THE
CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF NEW YORK.  AN OATH
PROMISING SUPPORT FOR THE FEDERAL AND STATE CONSTITUTIONS IS REQUIRED
OF PERSONS ADMITTED TO THE PRACTICE OF OF LAW IN NEW YORK, AS OF STATE
OFFICERS GENERALLY.  /6/  THE COURT'S ARGUMENT, THEN, IS THAT SINCE THE
"SUPPORT" OATH MAY VALIDLY BE REQUIRED, SEE KNIGHT V. BOARD OF REGENTS,
269 F.SUPP.  339 (SDNY 1967), AFF'D PER CURIAM, 390 U.S. 36 (1968), IT
IS PERMISSIBLE FOR APPELLEES TO INQUIRE INTO THE WILLINGNESS AND THE
ABILITY OF APPLICANTS TO TAKE THE SUPPORT OATH IN FULL HONESTY AND GOOD
FAITH-- FURTHER, THAT SINCE RULE 9406 HAS BEEN "CONSTRUED" TO SANCTION
NO MORE THAN SUCH AN INQUIRY INTO APPLICANTS' SINCERETY, THE RULE AND
THE WHOLE INVESTIGATORY SCHEME OF THE RULE SHOULD BE UPHELD. 

THERE ARE SEVERAL FLAWS IN THE COURT'S ANALYSIS.  WE ARE TOLD THAT
WHILE THE RULE MAY BE TOO SWEEPING, THE ADMINISTRATIVE CONSTRUCTION IS
NARROW ENOUGH, SO THE CONSTRUCTION SAVES THE RULE.  BUT THIS ARGUMENT
CANNOT MERIT EMBRACE UNLESS, IN THE FIRST INSTANCE, WE ARE ABLE TO
ASCERTAIN THE MEANING AND THE SWEEP OF THE ADMINISTRATIVE
INTERPRETATION ITSELF.  THE MAJORITY OPINION POINTS TO NO NEW YORK CASE
LAW THAT SHOWS WHAT THE PROFFERED INTERPRETATION MEANS.  NOR, I THINK,
CAN THE COURT COMFORTABLY POINT TO APPELLEES' PAST PRACTICE AS A GUIDE
TO THE PROPER INTERPRETATION OF RULE 9406.  FOR THE OPINIONS BELOW AND
THE PAPERS IN THIS CASE REVEAL THAT THESE APPELLEES, PRIOR TO THE
LAUNCHING OF THIS LITIGATION, THOUGHT IT THEIR DUTY TO MAKE VIRTUALLY
UNLIMITED INQUIRY INTO AN APPLICANT'S ASSOCIATIONAL, POLITICAL, AND
JOURNALISTIC ACTIVITIES.  /7/  THUS PAST ADMINISTRATIVE PRACTICE, WHICH
MAY SOMETIMES BE HELPFUL IN CLARIFYING THE SWEEP OF A DOUBTFUL LAW, CF.
FOX V. STANDARD OIL CO., 294 U.S. 87, 96-97 (1935), IN THIS CASE IS NO
HELP AT ALL IN SETTLING CONSTITUTIONAL DOUBTS CONCERNING THE REACH OF
RULE 9406.  APPELLEES' ANNOUNCEMENT THAT THEY WILL BE MORE RESTRAINED,
AND WILL FOCUS THEIR INQUIRIES ON "SINCERITY," IS OF COURSE ENTITLED TO
THE FULL RESPECT OF A REVIEWING COURT.  NONETHELESS, I DO NOT BELIEVE
THAT RULE 9406 IS SAVED BY THE ANNOUNCEMENT.  AT ANY RATE, WE CERTAINLY
ARE NOT CONFRONTED BY "LONG USAGE" GIVING "WELL-DEFINED CONTOURS," SEE
ANTE, AT 159, TO APPELLEES' PROPOSED CONSTRUCTION OF THE CHALLENGED
RULE.  A SECOND DEFECT OF THE COURT'S ANALYSIS IS THAT ANY ATTEMPT TO
ASSIMILATE RULE 9406 TO THE "SUPPORT" OATH, FOR FIRST AMENDMENT
PURPOSES, MUST FAIL.  THE MAJORITY URGES SUCH AN ASSIMILATION ON THE
THEORY THAT "'THE FORM OF THE GOVERNMENT OF THE UNITED STATES' AND THE
'GOVERNMENT' (TERMS OF RULE 9406) REFER SOLELY TO THE CONSTITUTION,
WHICH IS ALL THAT THE OATH MENTIONS."  YET AS MR. JUSTICE BLACK'S
DISSENT TODAY MAKES CLEAR, THE OATH OF CONSTITUTIONAL SUPPORT IS
PROMISSORY AND FORWARD LOOKING IN NATURE, WHILE THE FOCUS OF THE
CHALLENGED RULE IS QUITE DIFFERENT.  THE OATH OF CONSTITUTIONAL SUPPORT
REQUIRES AN INDIVIDUAL ASSUMING PUBLIC RESPONSIBILITIES TO AFFIRM, IN
ENTIRELY FAMILIAR AND TRADITIONAL LANGUAGE, /8/  THAT HE WILL ENDEAVOR
TO PERFORM HIS PUBLIC DUTIES LAWFULLY.  THIS IS A FAR CRY FROM RULE
9406, OR QUESTION 27(B) OF APPELLEES' QUESTIONNAIRES, BOTH OF WHICH ARE
DESIGNED TO PROBE THE PERSONAL POLITICAL PHILOSOPHY THAT AN APPLICANT
ENTERTAINS, HIS BELIEFS AND LOYALTIES AND EVEN HIS "MENTAL
RESERVATIONS."  TO REQUIRE THE TRADITIONAL OATH OF CONSTITUTIONAL
SUPPORT DOES NOT PUT GOVERNMENT IN THE CENSORIAL BUSINESS OF
INVESTIGATING, SCRUTINIZING, INTERPRETING, AND THEN PENALIZING OR
APPROVING THE POLITICAL VIEWPOINTS OF INDIVIDUALS.  FOR THAT REASON THE
VALIDITY OF THE SUPPORT OATH IS SUI GENERIS, AND DOES NOT SERVE TO
JUSTIFY THE INVESTIGATORY SCHEME SET UP BY RULE 9406. 

SURELY IT IS A MISTAKE TO CONCLUDE THAT BECAUSE A STATE MAY
ADMINISTER A SUPPORT OATH, IT MAY THEREFORE CONDUCT AN INVESTIGATION
INTO.THE BELIEFS AND AFFILIATIONS OF BAR APPLICANTS IN ORDER TO GAUGE
THE DEPTH OF THEIR "WILLINGNESS TO TAKE THE CONSTITUTIONAL OATH AND
ABILITY TO DO SO IN GOOD FAITH."  THE SEEMING LOGIC OF THIS POSITION
WAS FLATLY REPUDIATED IN BOND V. FLOYD, 385 U.S. 116 (1966).  IN THAT
CASE THE COURT CONFRONTED THE RECORD OF AN ACTUAL INQUIRY INTO THE
"SINCERITY" OF A PROSPECTIVE OATH TAKER, AND THE INQUIRY WAS FOUND TO
BE AN IMPERMISSIBLE ENCROACHMENT ON FIRST AMENDMENT FREEDOMS.  THE
COURT NOTED THAT THE POWER "TO TEST THE SINCERITY" OF A PERSON WHO MUST
TAKE AN OATH OF CONSTITUTIONAL SUPPORT "COULD BE UTILIZED TO RESTRICT
THE RIGHT . . . TO DISSENT FROM NATIONAL OR STATE POLICY . . . UNDER
THE GUISE OF JUDGING . . . LOYALTY TO THE CONSTITUTION."  ID., AT 132. 
/9/  THIS IS THE VERY POWER WHICH APPELLEES CLAIM UNDER WHAT THE COURT
CALLS AN "EXTREMELY NARROW" CONSTRUCTION OF RULE 9406.  IT IS A POWER
OF UNCERTAIN AND DANGEROUS DIMENSION, AND PATENTLY SUSCEPTIBLE OF
CENSORIAL ABUSES. 

FOR ME THE CONCLUSION IS INESCAPABLE THAT APPELLEES' CONSTRUCTION,
FAR FROM SAVING RULE 9406, ACTUALLY COMPOUNDS ITS CONSTITUTIONAL
DEFECTS.  THE ORIGINAL VICE OF THE RULE REMAINS.  STATE SCREENING
OFFICIALS STILL ARE LICENSED TO INVESTIGATE AN APPLICANT'S POLITICAL
ACTIVITIES AND AFFILIATIONS, AND TO PROBE HIS BELIEFS AND LOYALTIES AND
"MENTAL RESERVATIONS"-- ALL THIS SUPPOSEDLY FOR THE SAKE OF PROTECTING
THE INTEGRITY OF THE OATH OF CONSTITUTIONAL SUPPORT.  THE PROFESSED
RATIONALE OF THE ENTERPRISE MAY HAVE BEEN REFURBISHED, BUT THE SEARCH
FOR TRUE BELIEF AND UNRESERVED LOYALTY REMAINS.  SO CONSTRUED, RULE
9406 IS PLAINLY OVERBROAD.  IT SANCTIONS OVERREACHING OFFICIAL
INQUIRIES.  IT IS IMPERMISSIBLY SWEEPING AS A CRITERION FOR EXCLUSION
FROM THE BAR.  THE RULE AS INTERPRETED SUFFERS FROM THE VERY DEFECTS
THAT THIS COURT HAS FOUND FATAL TO OTHER SCHEMES THAT HAVE SOUGHT TO
PREDICATE THE GRANT OR DENIAL OF PUBLIC BENEFITS ON A PERSON'S
POLITICAL AFFILIATIONS AND VIEWPOINTS.  SEE, E.G., UNITED STATES V.
ROBEL, 389 U.S. 258 (1967); KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589
(1967); CF. SCHNEIDER V. SMITH, 390 U.S. 17 (1968). 

APPELLEES' GLOSS COMPOUNDS THE DEFECTS OF THE RULE, IN MY VIEW,
BECAUSE THE PROFFERED INTERPRETATION IS VAGUE IN THE EXTREME.  IT IS OF
COURSE CONCEIVABLE THAT AN INQUIRY INTO A BAR APPLICANT'S "SINCERITY"
MIGHT BE QUITE SIMPLE AND DEFINITE IN SCOPE.  APPELLEES SUGGEST IN THE
MOTION TO AFFIRM THAT SOME INQUIRY MIGHT BE USEFUL "TO AVOID THE
DIFFICULTY OF HAVING ONE INDIVIDUAL DEMUR TO THE TAKING OF (THE
SUPPORT) OATH AT THE VERY MOMENT PRIOR TO ADMISSION."  BUT THIS LIMITED
OBJECTIVE OF AVOIDING AN EMBARRASSING DISRUPTION OF THE ADMISSION
CEREMONY IS ADEQUATELY HANDLED BY QUESTION 27(A), AS DRAFTED BY THE
DISTRICT COURT.  PLAINLY, APPELLEES HAVE A GOOD DEAL MORE IN MIND, AS
IS SHOWN BY THEIR INSISTENCE THAT QUESTION 26 AND QUESTION 27(B) AID IN
DETERMINING AN APPLICANT'S "SINCERITY."  THESE ARE THE QUESTIONS THAT
FOCUS ON BELIEFS, LOYALTIES, AND AFFILIATIONS.  I CANNOT SAY THAT A BAR
APPLICANT, A LAW STUDENT, OR ANYONE ELSE IS GIVEN FAIR WARNING AS TO
THE KIND OF POLITICAL ACTIVITIES AND AFFILIATIONS THAT APPELLEES MEAN
TO PENALIZE AS EVIDENCING "INSINCERITY."  THUS, IN MY VIEW, RULE 9406,
AS CONSTRUED, IS FATALLY VAGUE.  STANDARDS OF DEFINITENESS MUST BE
STRICT AS TO LEGAL RULES WHICH TRENCH ON FIRST AMENDMENT ACTIVITIES. 
NAACP V. BUTTON, 371 U.S. 415, 432-433 (1963).  SEE UNITED STATES V.
NATIONAL DAIRY CORP., 372 U.S. 29, 36 (1963).  THE IRREDUCIBLE VICES OF
DUE PROCESS VAGUENESS, ARISING WHEN THOSE WHO MAY BE PENALIZED BY A
LEGAL RULE CANNOT ASCERTAIN THE RULE'S SCOPE AND AVOID ITS BURDENS, SEE
LANZETTA V. NEW JERSEY, 306 U.S. 451, 453 (1939), ARE INEVITABLY
HEIGHTENED WHEN THE RESULT IS DETERRENCE OF PROTECTED ACTIVITY.  CRAMP
V. BOARD OF PUBLIC INSTRUCTION, 368 U.S. 278, 287-288 (1961). 
APPELLANTS' FUNDAMENTAL COMPLAINT THROUGHOUT THIS LITIGATION HAS
CONCERNED THE INHIBITORY IMPACT OF NEW YORK'S SCREENING SYSTEM ON THE
EXERCISE OF FIRST AMENDMENT RIGHTS.  I AGREE THAT THE CHILLING EFFECT
OF RULE 9406, AS CONSTRUED, IS EXACERBATED BY THE SORT OF VAGUENESS
THAT THIS COURT HAS CONDEMNED ON A NUMBER OF HARDLY DISTINGUISHABLE
OCCASIONS.  SEE, E.G., WHITEHILL V. ELKINS, 389 U.S. 54 (1967);
KEYISHIAN V. BOARD OF REGENTS, SUPRA; DOMBROWSKI V. PFISTER, 380 U.S.
479 (1965); BAGGETT V. BULLITT, 377 U.S. 360 (1964); CRAMP V. BOARD OF
PUBLIC INSTRUCTION, SUPRA. 

A FURTHER WORD IS REQUIRED CONCERNING THE VALIDITY OF QUESTION 26 OF
APPELLEES' QUESTIONNAIRE.  THE COURT EXPRESSLY APPROVES QUESTION 26,
BUT FAILS TO CONSIDER THE RELATIONSHIP OF THE QUESTION TO RULE 9406
ITSELF, BEYOND NOTING THAT QUESTION 26 "REFLECTS" THE RULE'S COMMAND
THAT AN APPLICANT'S BELIEFS AND LOYALTIES BE INVESTIGATED.  I BELIEVE
IT IS A MISTAKE TO CONSIDER THE QUESTION ENTIRELY IN ISOLATION FROM THE
INVESTIGATORY SCHEME SET UP BY THE RULE.  SEE WHITEHILL V. ELKINS,
SUPRA, AT 56-57 ("WE MUST CONSIDER THE OATH WITH REFERENCE TO (RELATED
PROVISIONS CONCERNING SUBVERSIVES), NOT IN ISOLATION").  QUESTION 26 IS
UNDENIABLY A KEY PART OF THAT SCHEME.  THE DISTRICT COURT SAW RULE 9406
AS AN INSTRUCTION TO SCREENING OFFICIALS "TO SATISFY THEMSELVES THROUGH
ANALYSIS OF THE FACTUAL DATA BEFORE THEM" THAT AN APPLICANT HAS
REQUISITE BELIEFS AND LOYALTIES.  SEE 299 F.SUPP.,AT 126.  QUESTION 26
IS A POTENT DEVICE FOR UNCOVERING "FACTUAL DATE" ABOUT AN APPLICANT'S
ASSOCIATIONAL AFFILIATIONS. 

QUESTIONS 26(A) ASKS WHETHER THE APPLICANT HAS "EVER ORGANIZED OR
HELPED TO ORGANIZE OR BECOME A MEMBER OF" ANY ASSOCIATION THAT HE KNEW
WAS "ADVOCATING OR TEACHING" THAT ANY LOCAL, STATE, OR FEDERAL
GOVERNMENTAL INSTITUTION "SHOULD BE OVERTHROWN OR OVERTURNED BY FORCE,
VIOLENCE OR ANY UNLAWFUL MEANS."  PLAINLY THIS LANGUAGE COVERS A WIDE
RANGE OF ASSOCIATIONAL ACTIVITIES FULLY PROTECTED BY THE FIRST
AMENDMENT, ALONG WITH SOME CONDUCT THAT MAY NOT BE PRIVILEGED.  THE
QUESTION IS NOT AIMED AT CONCERTED ACTIVITY OF WHATEVER SORT ORIENTED
TO THE DOING OF ILLEGAL ACTS, BUT AT AFFILIATIONS WITH POLITICAL
ASSOCIATIONS THAT "ADVOCATE" OR "TEACH"  CERTAIN POLITICAL IDEAS.  ALL
KINDS AND DEGREES OF AFFILIATION ARE COVERED:  INDIFFERENT AND
ENERGETIC MEMBERS ALIKE, IN WELL-DISCIPLINED ORGANIZATIONS OR IN ANY
TRANSITORY "GROUP OF PERSONS."  THERE IS NO SPECIFICITY IN THE PHRASE,
"OVERTHROWN OR OVERTURNED BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS." 
THE LANGUAGE COVERS ALL ADVOCACY OF THOROUGHGOING POLITICAL CHANGE TO
BE BROUGHT ABOUT PARTLY THROUGH UNLAWFUL ACTS-- ACTS TO BE DONE NOW, OR
AT SOME HYPOTHETICAL FUTURE MOMENT WHICH MAY OR MAY NOT OCCUR-- ACTS OF
BLOODY AND ATROCIOUS TERROR, OR CONSCIENTIOUS ACTION INVOLVING
NONVIOLENT DISOBEDIENCE TO LAW.  "ADVOCATING OR TEACHING" INCLUDES THE
MOST ABSTRACT SORT OF DOCTRINAL DISCOURSE, AND IDEOLOGICAL UTTERANCES
ALTOGETHER ANCILLARY TO THE POLITICAL PROGRAM OF A GIVEN ASSOCIATION. 

EVEN WHEN VIEWED IN ISOLATION FROM RULE 9406, QUESTION 26(A) REVEALS
ITSELF AS AN INDISCRIMINATE AND HIGHLY INTRUSIVE DEVICE DESIGNED TO
EXPOSE AN APPLICANT'S POLITICAL AFFILIATIONS TO THE SCRUTINY OF
SCREENING AUTHORITIES.  AS SUCH, IT COMES INTO CONFLICT WITH PRINCIPLES
THAT BAR OVERREACHING OFFICIAL INQUIRY UNDERTAKEN WITH A VIEW TO
PREDICATING THE DENIAL OF A PUBLIC BENEFIT ON ACTIVITY PROTECTED BY THE
FIRST AMENDMENT.  /10/  THREE PARTICULAR DIFFICULTIES MAY BE
MENTIONED.  FIRST, QUESTION 26(A) IS UNDENIABLY OVER-ROAD IN THAT IT
COVERS THE AFFILIATIONS OF THOSE WHO DO NOT ADHERE TO TEACHINGS
CONCERNING UNLAWFUL POLITICAL CHANGE, OR ARE SIMPLY INDIFFERENT TO THIS
ASPECT OF AN ASSOCIATION'S ACTIVITIES.  ELFBRANDT V. RUSSELL, 384 U.S.
11, 16-19 (1966); APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 510-512
(1964).  SECOND, NO ATTEMPT HAS BEEN MADE TO LIMIT QUESTION 26(A) TO
ASSOCIATIONAL ADVOCACY OF CONCRETE, SPECIFIC, AND IMMINENT ILLEGAL
ACTS, OR TO ASSOCIATIONAL ACTIVITY THAT CREATES A SERIOUS LIKELIHOOD OF
HARM THROUGH IMMINENT ILLEGAL CONDUCT.  SEE BRANDENBURG V. OHIO, 395
U.S. 444, 447-449; KEYISHIAN V. BOARD OF REGENTS, 385 U.S.,AT 599-601. 
THIRD, WOULD-BE BAR APPLICANTS ARE LEFT TO WONDER WHETHER PARTICULAR
POLITICAL ACTS AMOUNT TO "BECOMING) A MEMBER" OF A "GROUP PF PERSONS"--
LAW STUDENTS AND OTHERS, WHEN EMBARKING ON ASSOCIATIONAL ACTIVITIES,
MUST GUESS WHETHER THE ASSOCIATION'S TEACHINGS FALL WITHIN THE NEBULOUS
FORMULA OF QUESTION 26(A), OR, MORE TO THE POINT, WHETHER THEIR OWN
ASSESSMENT OF AN ASSOCIATION'S TEACHINGS WOULD COINCIDE WITH THAT OF
SCREENING OFFICIALS.  THERE ARE PENALTIES FOR FAILING TO "STATE THE
FACTS" REQUIRED BY QUESTION 26(A) WHEN THE TIME TO MAKE APPLICATION
COMES.  THE INDEFINITE SCOPE OF QUESTION 26(A) EXPECTEDLY OPERATES TO
INDUCE PROSPECTIVE APPLICANTS TO RESOLVE DOUBTS BY FAILING TO EXERCISE
THEIR FIRST AMENDMENT RIGHTS.  SEE DOMBROWSKI V. PFISTER, 380 U.S.,AT
493-494; BAGGETT V. BULLITT, 377 U.S.,AT 367-370. 

BUT WHATEVER MAY BE THOUGHT OF QUESTION 26 OR EITHER OF ITS TWO
PARTS STANDING ALONE, /11/  IT REMAINS THAT THE FUNCTION OF THE
QUESTION IS TO GENERATE "FACTUAL DATE" ABOUT AN APPLICANT'S POLITICAL
AFFILIATIONS AND ACTIVITIES TO BE JUDGED ULTIMATELY BY THE OPERATIVE
STANDARDS OF RULE 9406.  DOUBTS CONCERNING THE PROPRIETY OF THE
QUESTION ARE INTENSIFIED WHEN THE QUESTION IS VIEWED REALISTICALLY AS
PART OF THE INVESTIGATORY SCHEME SET UP BY THE RULE.  CF. WHITEHILL V.
ELKINS, 389 U.S. 54 (1967).  IN "STATING) THE FACTS" AS REQUIRED BY
QUESTION 26, AN APPLICANT EXPOSES HIMSELF TO THE GRAVE RISK THAT
SCREENING OFFICIALS WILL FIND HIM WANTING IN RESPECT OF THE REQUISITE
BELIEFS AND LOYALTIES.  THE IMPERMISSIBLE LATITUDE OF RULE 9406 AS A
CRITERION FOR EXCLUSION, IN CONJUNCTION WITH OVERINTRUSIVE PROBING FOR
DETAILS ABOUT AN APPLICANT'S ASSOCIATIONAL AFFILIATIONS, CREATES AN
OBVIOUS IN TERROREM EFFECT ON THE EXERCISE OF FIRST AMENDMENT FREEDOMS
BY LAW STUDENTS AND OTHERS.  THE INTERWOVEN COMPLEXITY AND UNCERTAIN
SCOPE OF THE SCHEME HEIGHTEN THE DANGER THAT CAUTION AND
CONSCIENTIOUSNESS WILL LEAD TO THE FORFEITING OF RIGHTS BY PROSPECTIVE
BAR APPLICANTS.  SEE KEYISHIAN V. BOARD OF REGENTS, SUPRA, AT 604. 
APPELLEES' ATTEMPT TO SAVE THE WHOLE SCHEME BY RESTRICTIVE CONSTRUCTION
OF THE RULE AMOUNTS, IN MY VIEW, TO LITTLE MORE THAN A DECLARATION OF
BENEFICENT INTENT, AND WE HAVE SAID THAT GOOD INTENTIONS "DO NOT
NEUTRALIZE THE VICE" OF VAGUENESS AND OVERBREADTH.  BAGGETT V. BULLITT,
SUPRA, AT 373.  THE VALID AIMS OF APPELLEES' SCREENING EFFORTS CAN BE
ACHIEVED WITHOUT CASTING A PALL ON PROTECTED ACTIVITY.  BUT QUESTION
26, VIEWED IN LIGHT OF RULE 9406, OVERREACHES LEGITIMATE CONCERNS AND
PLACES AN IMPERMISSIBLE BURDEN ON THE EXERCISE OF FUNDAMENTAL RIGHTS. 

FOR THE REASONS STATED I WOULD STRIKE DOWN THE PORTIONS OF RULE 9406
DISCUSSED HEREIN, AS WRITTEN AND CONSTRUED, AND ALSO QUESTIONS 26 AND
27(B).  TO THAT EXTENT I WOULD REVERSE THE DISTRICT COURT. 

/1/  THE ATTACK IS UPON RULES OF STATEWIDE APPLICATION AND PRACTICES
ADMINISTERED BY APPELLEES IN THE FIRST AND SECOND JUDICIAL
DEPARTMENTS. 

/2/  THE FULL TEXT OF RULE 9406 IS PRINTED, ANTE, AT 169. 

/3/  "27.  (A) IS THERE ANY REASON WHY YOU CANNOT TAKE AND SUBSCRIBE
TO AN OATH OR AFFIRMATION THAT YOU WILL SUPPORT THE CONSTITUTIONS OF
THE UNITED STATES AND OF THE STATE OF NEW YORK"  IF THERE IS, PLEASE
EXPLAIN. 

"(B) CAN YOU CONSCIENTIOUSLY, AND DO YOU, AFFIRM THAT YOU ARE,
WITHOUT ANY MENTAL RESERVATION, LOYAL TO AND READY TO SUPPORT THE
CONSTITUTION OF THE UNITED STATES?" 

/4/  "26.  (A) HAVE YOU EVER ORGANIZED OF HELPED TO ORGANIZE OR
BECOME A MEMBER OF ANY ORGANIZATION OR GROUP OF PERSONS WHICH, DURING
THE PERIOD OF YOUR MEMBERSHIP OR ASSOCIATION, YOU KNEW WAS ADVOCATING
OR TEACHING THAT THE GOVERNMENT OF THE UNITED STATES OR ANY STATE OR
ANY POLITICAL SUBDIVISION THEREOF SHOULD BE OVERTHROWN OR OVERTURNED BY
FORCE, VIOLENCE OR ANY UNLAWFUL MEANS?  . . . IF YOUR ANSWER IS IN THE
AFFIRMATIVE, STATE THE FACTS BELOW.     "(B) IF YOUR ANSWER TO (A) IS
IN THE AFFIRMATIVE, DID YOU, DURING THE PERIOD OF SUCH MEMBERSHIP OR
ASSOCIATION, HAVE THE SPECIFIC INTENT TO FURTHER THE AIMS OF SUCH
ORGANIZATION OR GROUP OF PERSONS TO OVERTHROW OR OVERTURN THE
GOVERNMENT OF THE UNITED STATES OR ANY STATE OR ANY POLITICAL
SUBDIVISION THEREOF BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS?"     /5/
IN ADDITION TO THE DEFECTS MENTIONED AT TEXT, RULE 9406, AS WRITTEN,
VIOLATES THE PRINCIPLE OF SPEISER V. RANDALL, 357 U.S. 513 (1958). 
RULE 9406 PROVIDES THAT "NO PERSON SHALL BE ADMITTED" TO THE NEW YORK
BAR "UNLESS HE SHALL FURNISH SATISFACTORY PROOF" OF REQUIRED BELIEFS
AND LOYALTIES.  SPEISER CONDEMNS PLACING EVIDENTIARY BURDENS ON AN
APPLICANT FOR A PUBLIC BENEFIT, WHEN THE BENEFIT MAY BE DENIED BECAUSE
OF THE NATURE OF THE APPLICANT'S EXPRESSIVE AND ASSOCIATIONAL
ACTIVITIES.  DIFFICULTIES IN PROVING THE INNOCENCE OF CONDUCT MAY DETER
PROTECTED ACTIVITY AS MUCH AS A SUBSTANTIVE STANDARD THAT BURDENS
PRIVILEGED ACTIVITY BY ITS TERMS. 

/6/  SEE N.Y. JUDICIARY LAW SEC. 466 AND N.Y. CONST., ART. 13, SEC.
1, PRESCRIBING THE FOLLOWING OATH: 

"I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT THE
CONSTITUTION OF THE UNITED STATES, AND THE CONSTITUTION OF THE STATE OF
NEW YORK, AND THAT I WILL FAITHFULLY DISCHARGE THE DUTIES OF THE OFFICE
OF . . . , ACCORDING TO THE BEST OF MY ABILITY." 

/7/  JUDGE MOTLEY'S SEPARATE OPINION BELOW STATES PROTIONS OF
APPELLEES' ORIGINAL, UNREVISED QUESTIONNAIRES THAT GIVE SOME IDEA OF
APPELLEES' ORIGINAL CONCEPTION OF THEIR MISSION UNDER RULE 9406.  THESE
QUESTIONNAIRES, UTILIZED IN THE FIRST OR THE SECOND JUDICIAL
DEPARTMENT, OR BOTH, ASKED INTER ALIA FOR A LIST OF ALL "UNFAVORABLE
INCIDENTS IN YOUR LIFE," A LIST CONTAINING "EACH AND EVERY CLUB,
ASSOCIATION, SOCIETY OR ORGANIZATION OF WHICH YOU ARE OR HAVE BEEN A
MEMBER," A LIST OF "ANY ARTICLES FOR PUBLICATION" WRITTEN BY AN
APPLICANT.  AN APPLICANT WAS ASKED WHETHER HE HAD EVER "CONTRIBUTED IN
ANY WAY OR SIGNED A PETITION FOR" ANY SUBVERSIVE ORGANIZATION, OR HAD
"PARTICIPATED IN ANY WAY WHATSOEVER" IN SUCH ORGANIZATION'S
ACTIVITIES.  EACH APPLICANT WAS REQUIRED TO ((STATE . . . IN NOT LESS
THAN 100 WORDS" WHAT HE THOUGHT WERE THE "PRINCIPLES UNDERLYING THE
FORM OF GOVERNMENT OF THE UNITED STATES."  SEE 299 F.SUPP.,AT 137-139. 

THE REVISED QUESTIONNAIRES FOR THE TWO DEPARTMENTS, THE ONES PASSED
UPON BY THE COURT BELOW, HAD ELIMINATED THE MOST OBVIOUS CONSTITUTIONAL
DEFECTS OF THE ORIGINAL QUESTIONNAIRES.  STILL, CERTAIN REMAINING
QUESTIONS WERE FOUND WANTING IN THE DISTRICT COURT'S OPINION-- FOR
EXAMPLE, THE PRECURSOR TO PRESENT QUESTION 26.  IN FACT, THE ONLY
QUESTION IN THE PRESENT QUESTIONNAIRE THAT APPEARS TO REFLECT AN
"EXTREMELY NARROW" FOCUS ON INSINCERITY OF A PROSPECTIVE OATH TAKER--
QUESTION 27(A)-- WAS DRAFTED BY THE DISTRICT COURT AS PART OF ITS FINAL
ORDER.  APPELLEES' OWN PROPOSED REWORDING WAS REJECTED. 

/8/  SEE U.S. CONST., ART. VI, CL. 3; U.S. SUP. CT. RULE 5(4). 

/9/  IN THE MOTION TO AFFIRM APPELLEES RELY ON THE FOLLOWING
LANGUAGE IN BOND:  "NOR IS THIS A CASE WHERE A LEGISLATOR SWEARS TO AN
OATH PRO FORMA WHILE DECLARING OR MANIFESTING HIS DISAGREEMENT WITH OR
INDIFFERENCE TO THE OATH."  385 U.S.,AT 132.  THIS NEGATIVE
CHARACTERIZATION OF THE FACTS IN BOND, BARELY A DICTUM, SHOULD NOT BE
READ TO APPROVE SYSTEMATIC INQUIRY INTO BELIEFS AND AFFILIATIONS IN
ORDER TO TEST "SINCERITY."  WHATEVER A STATE MAY DO WHEN AN OATH TAKER
HIMSELF CONTEMPORANEOUSLY "DECLARES" OR "MANIFESTS" CONTEMPT FOR THE
OATH HE IS TAKING, IT IS QUITE A DIFFERENT MATTER TO PUT THE ONUS ON A
PROSPECTIVE OATH TAKER TO SATISFY SCREENING OFFICIALS THAT HIS
POLITICAL ACTIVITIES AND BELIEFS COMPORT WITH THE OFFICIALS' NOTIONS OF
"SINCERITY."  INDEED, QUESTION 27(A), WHICH WAS WRITTEN BY THE DISTRICT
COURT, ADDRESSES THE LIMITED CONCERNS OF THE BOND DICTUM AND HANDLES
THE REMOTE RISK THAT THE OATH-TAKING CEREMONY MIGHT BE DISRUPTED BY AN
UNWILLING APPLICANT.  IN PRESSING THEIR SEARCH FOR SINCERITY BEYOND
QUESTION 27(A), APPELLEES CAST SERIOUS DOUBT ON THEIR OWN ASSERTION
THAT RULE 9406 PLACES NO EVIDENTIARY BURDEN ON AN APPLICANT, AND
THEREBY REINFORCE THE CLAIM THAT RULE 9406 VIOLATES THE PRINCIPLE OF
SPEISER V. RANDALL, 357 U.S. 513 (1958).  SEE N. 5 SUPRA. 

/10/  PART (A) OF QUESTION 26 IS NOT RENDERED HARMLESS BY REASON OF
THE FACT THAT PART (B) LIMITS SOMEWHAT THE BREADTH OF THE QUESTION AS A
WHOLE.  IN THE FIRST PLACE, IT MUST BE REMEMBERED THAT NEITHER PART (A)
NOR PART (B) STATES THE OPERATIVE CRITERION FOR EXCLUDING APPLICANTS ON
THE BASIS OF POLITICAL AFFILIATIONS-- THE CRITERION FOR EXCLUSION, ONE
OF IMPERMISSIBLE LATITUDE, IS GIVEN IN RULE 9406 ITSELF.  SECOND, IF
ALL APPLICANTS WHO ANSWER PART (B) IN THE AFFIRMATIVE WERE THEREFORE
EXCLUDED, WHILE THOSE FALLING WITHIN PART (A) ONLY WERE ADMITTED, THE
RESULT WOULD STILL BE CONSTITUTIONALLY PROBLEMATICAL.  SEE N. 11
INFRA.  THIRD, OVERREACHING INQUIRIES ARE NOT CURED SIMPLY BY ADDING
NARROWER FOLLOW-UP QUESTIONS.  OBVIOUSLY A STATE CANNOT HOPE TO JUSTIFY
THE SORT OF INFORMATIONAL DEMAND CONDEMNED TODAY IN IN RE STOLAR, ANTE,
P. 23, ON THE THEORY THAT THE OVERINTRUSIVE INQUIRY IS PART OF A SERIES
THAT CULMINATES IN A SUFFICIENTLY NARROW QUESTION.  WHEN THE
QUESTIONING IS DIRECTED AT THE POLITICAL ACTIVITIES AND AFFILIATIONS OF
APPLICANTS FOR A PUBLIC BENEFIT, THE SCOPE OF QUESTIONING MUST BE
CAREFULLY LIMITED IN LIGHT OF THE PERMISSIBLE CRITERIA FOR DENYING THE
BENEFIT.  SCHNEIDER V. SMITH, 390 U.S. 17, 24 (1968); SHELTON V.
TUCKER, 364 U.S. 479, 488 (1960).  THERE IS NO JUSTIFICATION FOR A
REQUIREMENT OF OVERBROAD DISCLOSURE THAT CHILLS THE EXERCISE OF FIRST
AMENDMENT FREEDOMS AND IS NOT TAILORED TO SERVE VALID GOVERNMENTAL
INTERESTS.  SEE GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE,
372 U.S. 539, 546 (1963); BATES V. LITTLE ROCK, 361 U.S. 516, 524
(1960); NAACP V. ALABAMA, 357 U.S. 449, 462-463 (1958). 

/11/  PART (B) OF QUESTION 26 LIMITS PART (A) IN ONE RESPECT:
APPLICANTS AFFILIATED WITH AN ASSOCIATION OF THE KIND CHARACTERIZED IN
PART (A), BUT WHO DO NOT ENDORSE THE ASSOCIATION'S TEACHINGS CONCERNING
UNLAWFUL POLITICAL CHANGE, NEED NOT ANSWER PART (B) IN THE
AFFIRMATIVE.  NATURALLY IN OTHER RESPECTS PART (B) HAS THE SAME SWEEP
AS PART (A).  "SPECIFIC INTENT" IN THIS CONTEXT MEANS DOCTRINAL
AGREEMENT WITH THE IDEOLOGICAL TENETS OF PART (A) ASSOCIATIONS-- OR, AS
APPELLEES PUT IT IN THEIR BRIEF, "'SPECIFIC INTENT' TO FURTHER THE
ADVOCACY" OF DRASTIC CHANGE TO BE BROUGHT ABOUT IN PART BY UNLAWFUL
MEANS.  AGAIN THE "UNLAWFUL MEANS" MIGHT BE NONVIOLENT OR BLOO
BLOODTHIRSTY.  THE ASSOCIATION MIGHT BE A DISCUSSION GROUP LASTING FOR
A WEEK.  THE ADVOCACY MIGHT BE ORIENTED TO A FAR AND CONTINGENT FUTURE
OR TO THE HERE AND NOW; IT MIGHT BE INNOCUOUS OR LIKELY TO CAUSE
IMMINENT AND SERIOUS HARM.  A PROSPECTIVE APPLICANT MIGHT WELL BE IN
DOUBT WHETHER PARTICUALR ASSOCIATIONAL ACTIVITY EVINCES "SPECIFIC
INTENT" OR NOT-- OR WHETHER, YEARS LATER PERHAPS, SCREENING OFFICIALS
WOULD BE WILLING TO INFER THIS STATE OF MIND. 

NORMAN DORSEN ARGUED THE CAUSE FOR APPELLANTS.  ON THE BRIEF FOR
APPELLANTS LAW STUDENTS CIVIL RIGHTS RESEARCH COUNCIL, INC. ET AL. WERE
ALAN H. LEVINE, JEREMIAH S. GUTMAN, MELVIN L. WULF, AND SANFORD JAY
ROSEN.  ON THE FRIEF FOR APPELLANTS WEXLER ET AL. WERE LEONARD B.
BOUDIN, VICTOR RABINOWITZ, AND DAVID ROSENBERG. 

DAVID W. PECK ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, DANIEL M. COHEN,
ASSISTANT ATTORNEY GENERAL, AND MICHAEL M. MANEY. 
..END :



















DYSON V. STEIN, 401 U.S. 200 


       DYSON, CHIEF OF POLICE OF DALLAS, ET AL. V. STEIN

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF TEXAS

        NO. 41.  ARGUED APRIL 30, 1970-- REARGUED NOVEMBER 16,

1970-- DECIDED FEBRUARY 23, 1971 


APPELLEE NEWSPAPER PUBLISHER, WHO HAD BEEN CHARGED WITH VIOLATING A
TEXAS LAS PROHIBITING THE POSSESSION OF OBSCENE MATERIALS, BROUGHT THIS
ACTION IN A FEDERAL DISTRICT COURT FOR AN INJUNCTION TO PREVENT THE
DALLAS POLICE FROM ARRESTING HIM AND SEIZING HIS PROPERTY ON OBSCENITY
GROUNDS WITHOUT A PRIOR JUDICIAL DETERMINATION OF OBSCENITY AND FOR A
DECLARATION OF THE RIGHTS OF THE PARTIES WITH RESPECT TO THE STATUTE. 
A THREE-JUDGE COURT WAS CONVENED AND ISSUED DECLARATORY AND INJUNCTIVE
RELIEF, HOLDING TWO PARTS OF THE STATUTE UNCONSTITUTIONAL AND RULING
THAT ANOTHER PART WOULD BE CONSTITUTIONAL ONLY IF THE OBSCENITY
DEFINITION WAS CHANGED.  HELD:  THERE WAS NO FINDING OF IRREPARABLE
INJURY TO APPELLEE AND HENCE NO PROPER BASIS FOR FEDERAL INTERFERENCE
WITH THE PENDING STATE CRIMINAL PROSECUTION.  YOUNGER V. HARRIS, ANTE,
P. 37; SAMUELS V. MACKELL, ANTE, P. 66. 

300 F.SUPP.  602, VACATED AND REMANDED. 

PER CURIAM 

THE APPELLEE, STEIN, PUBLISHED A BI-WEEKLY NEWSPAPER, THE DALLAS
NOTES.  STEIN WAS CHARGED WITH TWO VIOLATIONS OF ART. 527, SEC. 1, OF
THE TEXAS PENAL CODE, WHICH THEN PROHIBITED, AMONG OTHER THINGS, THE
POSSESSION OF OBSCENE MATERIALS.  /1/  WHILE THESE TWO CASES WERE
PENDING IN STATE COURTS, STEIN BROUGHT THE PRESENT ACTION IN A FEDERAL
DISTRICT COURT UNDER 42 U.S.C. 1983, 1985, REPRESENTING HIMSELF AND A
CLASS CONSISTING OF PRESENT AND FUTURE EMPLOYEES OF AND CONTRIBUTORS TO
HIS NEWSPAPER.  THE DEFENDANTS WERE THE DISTRICT ATTORNEY OF DALLAS
COUNTY, AND THE DALLAS CHIEF OF POLICE.  HE SOUGHT: 

"(PERMANENT INJUNCTIVE RELIEF AGAINST THE DALLAS POLICE

DEPARTMENT, REQUIRING THAT . . . THERE BE NO ARREST OF PLAINTIFF,

  NOR SEIZURE OF HIS PROPERTY ON GROUNDS OF OBSCENITY WITHOUT A

  PRIOR JUDICIAL DETERMINATION OF THE OBSCENE CHARACTER OF THE

  MATERIAL IN QUESTION: . . . 

" . . . THAT THE COURT ADJUDGE, DECREE AND DECLARE THE RIGHTS

  OF THE PARTIES WITH RESPECT TO THE APPLICATION OF ARTICLE 527 OF

  THE TEXAS PENAL CODE; 

     " . . . THAT THE COURT GRANT SUCH OTHER AND FURTHER RELIEF AS
IS JUST AND EQUITABLE." 

A THREE-JUDGE COURT WAS CONVENED.  28 U.S.C. 2284.  THAT COURT
REFUSED TO REQUIRE A HEARING ON THE OBSCENE CHARACTER OF THE MATERIAL
BEFORE ITS SEIZURE AND THE ARREST OF THE PLAINTIFF.  IT HELD THAT THE
REQUEST FOR SUCH RELIEF WAS "BASED ON THE ALLEGED HARASSMENT AND . . .
NOT AN ATTACK UPON THE CONSTITUTIONALITY OF A STATUTE."  THE COURT WENT
ON TO EMPHASIZE THAT ITS CONSIDERATION DID "NOT IN ANY WAY INVOLVE AN
APPRAISAL OF THE CONSTITUTIONALITY OF THE APPLICATION OF ARTICLE 527 TO
PLAINTIFF.  OUR SOLE CONCERN IS THE DETERMINATION OF WHETHER THE
STATUTE IS CONSTITUTIONALLY DEFECTIVE ON ITS FACE."  THE THREE-JUDGE
COURT THEN TURNED TO THE STATUTE ITSELF, AND HELD THAT SECS. 1 AND 2
WERE UNCONSTITUTIONAL, AND THAT SEC. 3 WOULD BE CONSTITUTIONAL ONLY IF
THE DEFINITION OF OBSCENITY WERE CHANGED SOMEWHAT.  THE COURT ISSUED
APPROPRIATE DECLARATORY AND INJUNCTIVE RELIEF EFFECTUATING ITS
CONCLUSIONS.  300 F.SUPP.  602 (1969).  TEXAS OFFICIALS APPEALED, AND
WE NOTED PROBABLE JURISDICTION.  396 U.S. 954 (1969). 

TODAY WE HAVE AGAIN STRESSED THE RULE THAT FEDERAL INTERVENTION
AFFECTING PENDING STATE CRIMINAL PROSECUTIONS, EITHER BY INJUNCTION OR
BY DECLARATORY JUDGMENT, IS PROPER ONLY WHERE IRREPARABLE INJURY IS
THREATENED.  DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157 (1943).  THE
EXISTENCE OF SUCH INJURY IS A MATTER TO BE DETERMINED CAREFULLY UNDER
THE FACTS OF EACH CASE.  IN THIS CASE THE DISTRICT COURT MADE NO
FINDINGS OF ANY IRREPARABLE INJURY AS DEFINED BY OUR DECISIONS TODAY;
THEREFORE, THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE
IS REMANDED FOR RECONSIDERATION IN LIGHT OF YOUNGER V. HARRIS, ANTE, P.
37, AND SAMUELS V. MACKELL, ANTE, P. 66.  SEE ALSO BOYLE V. LANDRY,
ANTE, P. 77. 

              IT IS SO ORDERED. 

/1/  TEXAS PENAL CODE, ART. 527, 1961 TEX. GEN. LAWS, C. 461, SEC.
1, PROVIDED: 

"SECTION 1.  WHOEVER SHALL KNOWINGLY PHOTOGRAPH, ACT IN, POSE FOR,
MODEL FOR, PRINT, SELL, OFFER FOR SALE, GIVE AWAY, EXHIBIT, TELEVISE,
PUBLISH, OR OFFER TO PUBLISH, OR HAVE IN HIS POSSESSION OR UNDER HIS
CONTROL, OR OTHERWISE DISTRIBUTE, MAKE, DISPLAY, OR EXHIBIT ANY OBSCENE
BOOK, MAGAZINE, STORY, PAMPHLET, PAPER, WRITING, CARD, ADVERTISEMENT,
CIRCULAR, PRINT, PICTURES, PHOTOGRAPH, MOTION PICTURE FILM, IMAGE,
CAST, SLIDE, FIGURE, INSTRUMENT, STATUE, DRAWING, PHONOGRAPH RECORD,
MECHANICAL RECORDING, OR PRESENTATION, OR OTHER ARTICLE WHICH IS
OBSCENE, SHALL BE FINED NOT MORE THAN ONE THOUSAND DOLLARS ($1,000) NOR
IMPRISONED MORE THAN ONE (1) YEAR IN THE COUNTY JAIL OR BOTH. 

"SEC. 2.  WHOEVER SHALL KNOWINGLY OFFER FOR SALE, SELL, GIVE AWAY,
EXHIBIT, TELEVISE, OR OTHERWISE DISTRIBUTE, MAKE, DISPLAY, OR EXHIBIT
ANY OBSCENE BOOK, MAGAZINE, STORY, PAMPHLET, PAPER, WRITING, CARD,
ADVERTISEMENT, CIRCULAR, PRINT, PICTURES, PHOTOGRAPH, MOTION PICTURE
FILM, IMAGE, CAST, SLIDE, FIGURE, INSTRUMENT, STATUE, DRAWING,
PHONOGRAPH RECORD, MECHANICAL RECORDING, OR PRESENTATION, OR OTHER
ARTICLE WHICH IS OBSCENE, TO A MINOR SHALL BE FINED NOT MORE THAN TWO
THOUSAND, FIVE HUNDRED DOLLARS ($2,500) NOR IMPRISONED IN THE COUNTY
JAIL MORE THAN TWO (2) YEARS OR BOTH. 

"SEC. 3.  FOR PURPOSES OF THIS ARTICLE THE WORD 'OBSCENE' IS DEFINED
AS WHETHER TO THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY
STANDARDS, THE DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE APPEALS
TO PRURIENT INTERESTS.  PROVIDED, FURTHER, FOR THE PURPOSE OF THIS
ARTICLE, THE TERM 'CONTEMPORARY COMMUNITY STANDARDS' SHALL IN NO CASE
INVOLVE A TERRITORY OR GEOGRAPHIC AREA LESS THAN THE STATE OF TEXAS. 

"SEC. 4.  WHOEVER SHALL BE CONVICTED FOR THE SECOND TIME OF A
VIOLATION OF THIS ARTICLE SHALL BE DEEMED GUILTY OF A FELONY AND SHALL
BE PUNISHED BY CONFINEMENT IN THE STATE PENITENTIARY FOR NOT MORE THAN
FIVE (5) YEARS OR BY A FINE OF NOT MORE THAN TEN THOUSAND DOLLARS
($10,000) OF BY BOTH SUCH FINE AND IMPRISONMENT. 

"SEC. 5.  IT SHALL BE A DEFENSE TO ANY CHARGES BROUGHT HEREUNDER IF
SUCH PROHIBITED MATTER OR ACT SHALL BE REGULARLY IN USE IN ANY BONA
FIDE, RELIGIOUS, EDUCATIONAL OR SCIENTIFIC INSTITUTION OR THE BUSJECT
OF A BONA FIDE SCIENTIFIC INVESTIGATION. 

"THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO ANY MOTION PICTURES
PRODUCED OR MANUFACTURED AS COMMERCIAL MOTION PICTURES WHICH (1) HAVE
THE SEAL UNDER THE PRODUCTION CODE OF THE MOTION PICTURE ASSOCIATION OF
AMERICA, INC.; OR (2) LEGALLY MOVE IN INTERSTATE COMMERCE UNDER FEDERAL
LAW; OR (3) ARE LEGALLY IMPORTED FROM FOREIGN COUNTRIES INTO THE UNITED
STATES AND HAVE BEEN PASSED BY A CUSTOMS OFFICE OF THE UNITED STATES
GOVERNMENT AT ANY PORT OF ENTRY. 

"THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO ANY DAILY OR WEEKLY
NEWSPAPER. 

"SEC. 6.  THE DISTRICT COURTS OF THIS STATE AND THE JUDGES THEREOF
SHALL HAVE FULL POWER, AUTHORITY, AND JURISDICTION, UPON APPLICATION BY
ANY DISTRICT OR COUNTY ATTORNEY WITHIN THEIR RESPECTIVE JURISDICTIONS,
TO ISSUE ANY AND ALL PROPER RESTRAINING ORDERS, TEMPORARY AND PERMANENT
INJUNCTIONS, AND ANY OTHER WRITS AND PROCESSES APPROPRIATE TO CARRY OUT
AND ENFORCE THE PROVISIONS OF THIS ACT." 

MR. JUSTICE WHITE CONCURS IN THE RESULT. 

(FOR CONCURRING OPINION OF MR. JUSTICE STEWART, SEE ANTE, P. 54.) 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING IN THE RESULT. 

MY BROTHER DOUGLAS' DISSENTING OPINION DESCRIBES GRAPHICALLY THE
POLICE CONDUCT UPON WHICH APPELLEE RESTED HIS ALLEGATIONS OF BAD FAITH
AND HARASSMENT.  IF PROVED, THESE ALLEGATIONS WOULD JUSTIFY FEDERAL
INTERVENTION.  THE MASS SEIZURE OF SOME TWO TONS OF THE ISSUES OF THE
NEWSPAPER WITHOUT A PRIOR JUDICIAL DETERMINATION OF THE ALLEGED
OBSCENITY OF THE ISSUES WAS UNCONSTITUTIONAL.  MARCUS V. SEARCH
WARRANT, 367 U.S. 717 (1961); BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S.
58 (1963); A QUANTITY OF BOOKS V. KANSAS, 378 U.S. 205 (1964). 
SIMILARLY, THE MASS SEIZURE OF THE TOOLS AND EQUIPMENT REQUIRED TO
PREPARE THE NEWSPAPER-- INSOFAR AS IT DISABLED APPELLEE FROM PUBLISHING
FUTURE ISSUES-- INFRINGED THE PRINCIPLE OF NEAR V. MINNESOTA, 283 U.S.
697 (1931). 

BUT THESE QUESTIONS ARE NOT BEFORE US.  THE THREE-JUDGE COURT BELOW
REMANDED TO A SINGLE JUDGE FOR DETERMINATION ALL QUESTIONS ADVANCED BY
APPELLEE EXCEPT THE CONTENTION THAT THE TEXAS STATUTE WAS
UNCONSTITUTIONAL ON ITS FACE, AND THE APPELLEE DOES NOT CHALLENGE THIS
ORDER TO REMAND HERE.  I, THEREFORE, WOULD REVERSE THE JUDGMENT OF THE
DISTRICT COURT, EXCEPT FOR PARAGRAPH 4, FOR THE REASONS STATED IN MY
SEPARATE OPINION IN PEREZ V. LEDESMA, ANTE, P. 93. 

MR. DOUGLAS, DISSENTING. 

        I 

THE TWO RAIDS IN THIS CASE WERE SEARCH-AND-DESTROY MISSIONS IN THE
VIETNAMESE SENSE OF THE PHRASE.  IN EACH CASE THE POLICE CAME AT
NIGHT.  THE FIRST SEARCH WARRANT AUTHORIZED A SEARCH AND SEIZURE OF
"OBSCENE ARTICLES AND MATERIALS, TO-WIT: PICTURES, PHOTOGRAPHS,
DRAWINGS AND OBSCENE LITERATURE" CONCEALED AT A GIVEN ADDRESS.  THE
SEIZURES INCLUDED:  TWO TONS OF A NEWSPAPER (DALLAS NOTES), ONE
PHOTOGRAPH ENLARGER, TWO PORTABLE TYPEWRITERS, TWO ELECTRIC
TYPEWRITERS, ONE CAMERA, "NUMEROUS OBSCENE PHOTOGRAPHS," AND $5.43 IN
MONEY.  /1/  THE SECOND WARRANT WAS ISSUED 16 DAYS LATER, IN RESPONSE
TO A CLAIM THAT MARIHUANA WAS CONCEALED ON THE PREMISES.  IT AUTHORIZED
THE OFFICERS "TO SEARCH FOR AND SEIZE THE SAID NARCOTIC DRUG AND
DANGEROUS DRUG IN ACCORDANCE WITH THE LAW IN SUCH CASES PROVIDED."  NOT
FINDING ANY MARIHUANA ON THE PREMISES, THE SERGEANT ASKED INSTRUCTIONS
FROM HIS LIEUTENANT.  HE WAS TOLD TO SEIZE PORNOGRAPHIC LITERATURE AND
ANY EQUIPMENT USED TO MAKE IT.  HE "DIDN'T KNOW WHAT TO SEIZE AND WHAT
NOT TO SEIZE SO (HE) JUST TOOK EVERYTHING."  "EVERYTHING" INCLUDED A
POLAROID CAMERA, A KODAK BROWNIE, A FLOCON CAMERA, A KODAK LAMP, A
FLOATING FIXTURE LAMP, A THREE-DRAWER DESK CONTAINING PRINTERS'
SUPPLIES, A DRAFTING SQUARE, A DRAFTING TABLE, TWO DRAWING BOARDS, A
MAILING TUBE, TWO TELEPHONES, A STAPLER, FIVE CARDBOARD BOXES
CONTAINING DOCUMENTS, ONE ELECTRIC TYPEWRITER, AND ONE TYPEWRITER
DESK.  A POSTER OF MAO TSE-TUNG, CREDIT CARDS, COSTUME JEWELRY, CANS OF
SPICES, A BROWN SWEATER, AND A STATUTE OF A MAN AND WOMAN IN AN EMBRACE
WERE ALSO SEIZED.  THUS THE NEWSPAPER DALLAS NOTES, A BI-MONTHLY, WAS
EFFECTIVELY PUT OUT OF BUSINESS.  /2/ 

IT WOULD BE DIFFICUTL TO FIND IN OUR BOOKS A MORE LAWLESS SEARCH-AND
DESTROY RAID, UNLESS IT BE THE ONE IN KREMEN V. UNITED STATES, 353 U.S.
346.  IF THIS SEARCH-AND-DESTROY TECHNIQUE CAN BE EMPLOYED AGAINST THIS
DALLAS NEWSPAPER, THEN IT CAN BE DONE TO THE NEW YORK TIMES, THE
WASHINGTON POST, THE SEATTLE POST INTELLIGENCER, THE YAKIMA HERALD
REPUBLIC, THE SACRAMENTO BEE, AND ALL THE REST OF OUR NEWSPAPERS.  FOR,
AS I SHALL POINT OUT, THE TEXAS STATUTE GOVERNING "OBSCENITY"  /3/  IS
PLAINLY UNCONSTITUTIONAL. 

GOVERNMENT CERTAINLY HAS NO POWER TO CLOSE DOWN NEWSPAPERS.  EVEN
CENSORSHIP-- WHETHER FOR OBSCENITY, FOR IRRESPONSIBLE REPORTING OR
EDITORIALS, OR OTHERWISE-- IS TABOO.  AS CHIEF JUSTICE HUGHES SAID IN
NEAR V. MINNESOTA, 283 U.S. 697, DECIDED IN 1931: 

"(THE ADMINISTRATION OF GOVERNMENT HAS BECOME MORE COMPLEX, THE
OPPORTUNITIES FOR MALFEASANCE AND CORRUPTION HAVE MULTIPLIED, CRIME HAS
GROWN TO MOST SERIOUS PROPORTIONS, AND THE DANGER OF ITS PROTECTION BY
UNFAITHFUL OFFICIALS AND OF THE IMPAIRMENT OF THE FUNDAMENTAL SECURITY
OF LIFE AND PROPERTY BY CRIMINAL ALLIANCES AND OFFICIAL NEGLECT,
EMPHASIZES THE PRIMARY NEED OF A VIGILANT AND COURAGEOUS PRESS,
ESPECIALLY IN GREAT CITIES.  THE FACT THAT THE LIBERTY OF THE PRESS MAY
BE ABUSED BY MISCREANT PURVEYORS OF SCANDAL DOES NOT MAKE ANY THE LESS
NECESSARY THE IMMUNITY OF THE PRESS FROM PREVIOUS RESTRAINT IN DEALING
WITH OFFICIAL MISCONDUCT.  SUBSEQUENT PUNISHMENT FOR SUCH ABUSES AS MAY
EXIST IS THE APPROPRIATE REMEDY, CONSISTENT WITH CONSTITUTIONAL
PRIVILEGE."  ID., AT 719-720.  I AGREE WITH THAT VIEW. 

IT IS SAID, HOWEVER, THAT THESE ISSUES ARE NOT BEFORE US AS THE CASE
HAS BEEN REMANDED TO A SINGLE JUDGE TO PASS ON THEM.  BUT WE DEAL WITH
PLAIN ERROR, AS THE STATE STATUTE IS UNCONSTITUTIONAL ON ITS FACE AND
WE SHOULD PUT AN END TO LAWLESS RAIDS UNDER IT.  /4/

        II 

THE CONSTITUTIONAL MANDATE THAT GOVERNMENT /5/  "SHALL MAKE NO LAW .
. . ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS" PRECLUDES IN MY
VIEW ANY FORM OF CENSORSHIP.  VICIOUS, IRRESPONSIBLE, AND DEPRAVED AS
THE PRESS OFTEN IS, THE CONSTITUTIONAL REMEDY IS NOT CENSORSHIP.  /6/
THE ANTIDOTE IS EDUCATION, PINNING OUR FAITH TO THE JEFFERSONIAN CREED
THAT BY EDUCATION WE MAY IN TIME BECOME A MATURE PEOPLE.  /7/ 

I HAVE SET FORTH MY VIEWS OVER AND OVER AGAIN AS TO WHY THE FIRST
AMENDMENT SHOULD BE STRICTLY CONSTRUED; AND THEY NEED NOT BE REPEATED
HERE.  IT IS DIFFICULT-- INDEED IMPOSSIBLE-- TO READ THE CONSTITUTIONAL
MANDATE THAT GOVERNMENT "SHALL MAKE NO LAW" ABRIDGING FREEDOM OF THE
PRESS TO MEAN THAT GOVERNMENT "MAY MAKE SOME LAWS" ABRIDGING THAT
FREEDOM.  CERTAINLY A STRICT CONSTRUCTIONIST CANNOT SO READ IT. 

     "THE COURT SAYS IT HAS BEEN TRYING TO BALANCE THE INTERESTS OF

  SOCIETY IN PROTECTING ITSELF FROM THE SUPPOSED EVILS OF OBSCENE

  MATERIAL WITH THE REAL INTEREST IN FREEDOM OF EXPRESSION.  THERE

IS AMPLE EVIDENCE THAT THE CLEAR AND DEFINITE LANGUAGE OF THE

  FIRST AMENDMENT WAS INTENDED TO PRECLUDE THE VERY PROBLEM OF

  BALANCING ASSUMED BY THE COURT.  THE FIRST AMENDMENT HOLDS THAT

  THE INTEREST OF SOCIETY IN FREEDOM OF EXPRESSION /8/  IS MORE

  IMPORTANT THAN THE HARM THAT MIGHT FLOW FROM OBSCENE MATERIAL. 

  THE VERY INTEREST IN PROTECTION FROM INJURY FROM OBSCENE MATERIAL

  WOULD BE BETTER SERVED BY ALLOWING EACH INDIVIDUAL TO MAKE A FREE

  APPRAISAL OF PORNOGRAPHIC MATERIAL.  A HALLMARK OF AN IMMATURE

AND INSECURE SOCIETY IS THE CENSORSHIP OF IDEAS.  CENSORSHIP,

  WHICH INSULATES ALL FROM WHAT SOME SUPPOSE TO BE EVIL, MERELY

  MAGNIFIES THAT INSECURITY.  IF SOCIETY DOES SUCH A POOR JOB OF

  EDUCATING ITSELF SO THAT FOUR LETTER WORDS AND EXPLICIT PICTURES

  ARE DANGEROUS, THE REMEDY IS TO IMPROVE THE EDUCATIONAL PROCESS,

  NOT TO OUTLAW CERTAIN PUBLICATIONS.  WHILE THE FIRST AMENDMENT

  DOES NOT MANDATE BETTER EDUCATION IT DOES PROHIBIT THE CENSORSHIP

  OF IDEAS.  THIS USE OF A BALANCING TEST EVIDENCES A MISCON

  MISCONCEPTION OF THE CONSTITUTIONAL NATURE OF SOCIETY.  THERE IS

NOTHING TO BALANCE.  SOCIETY'S SECURITY FLOWS DIRECTLY AND SOLELY

  FROM THE FREEDOM AND SECURITY OF EACH INDIVIDUAL."  31 ALBANY

  L.REV.  143, 151 (1967). 

IF I AM CORRECT IN CONCLUDING THAT A STATE CAN MAKE "NO LAW"
CENSORING THE PRESS BECAUSE OF OBSCENITY, THEN A PUBLISHER THREATENED
BY SUCH A LAW CAN GO INTO A FEDERAL COURT TO ENJOIN STATE OFFICIALS
FROM ENFORCING THE LAW, AS I MADE CLEAR IN MY DISSENT IN YOUNGER V.
HARRIS, ANTE, AT 59.  THE SPECIAL CIRCUMSTANCES WHERE SUCH FEDERAL
INTERVENTION IS PERMISSIBLE ARE NOT RESTRICTED TO BAD FAITH ON THE PART
OF STATE OFFICIALS OR THE THREAT OF MULTIPLE PROSECUTIONS.  AS MR.
JUSTICE BUTLER, WRITING FOR THE COURT, SAID IN TERRACE V. THOMPSON, 263
U.S. 197, 214:     "EQUITY JURISDICTION WILL BE EXERCISED TO ENJOIN THE
THREATENED ENFORCEMENT OF A STATE LAW WHICH CONTRAVENES THE FEDERAL
CONSTITUTIONA WHEREVER IT IS ESSENTIAL IN ORDER EFFECTUALLY TO PROTECT
PROPERTY RIGHTS AND THE RIGHTS OF PERSONS AGAINST INJURIES OTHERWISE
IRREMEDIABLE; AND IN SUCH A CASE A PERSON, WHO AS AN OFFICER OF THE
STATE IS CLOTHED WITH THE DUTY OF ENFORCING ITS LAWS AND WHO THREATENS
AND IS ABOUT TO COMMENCE PROCEEDINGS, EITHER CIVIL OR CRIMINAL, TO
ENFORCE SUCH A LAW AGAINST PARTIES AFFECTED, MAY BE ENJOINED FROM SUCH
ACTION BY A FEDERAL COURT OF EQUITY."  AND SEE WATSON V. BUCK, 313 U.S.
387, 402. 

NO POSSIBLE CONSTRUCTION OF THIS STATE LAW CAN SAVE IT.  THIS IS NOT
A SITUATION WHERE MERE OVERBREADTH OF A STATE STATUTE MAY HAVE CHILLING
OR CRIPPLING EFFECTS ON FIRST AMENDMENT RIGHTS.  THIS IS A CASE WHERE
TEXAS HAS ENTERED A FIELD WHICH THE CONSTITUTION BARS ALL THE STATES
AND THE FEDERAL GOVERNMENT FROM ENTERING. 

THE TEXAS OBSCENITY STATUTE, AS I VIEW IT, MEETS PRECISELY THE
HYPOTHETICAL STATUTE WE DISCUSSED IN WATSON V. BUCK, 313 U.S. 387,
402: 

     "IT IS OF COURSE CONCEIVABLE THAT A STATUTE MIGHT BE
FLAGRANTLY

  AND PATENTLY VIOLATIVE OF EXPRESS CONSTITUTIONAL PROHIBITIONS IN

  EVERY CLAUSE, SENTENCE AND PARAGRAPH, AND IN WHATEVER MANNER AND

  AGAINST WHOMEVER AN EFFORT MIGHT BE MADE TO APPLY IT." 

NO CLEARER CASE JUSTIFYING FEDERAL INTERVENTION TO PREVENT A STATE
CRIMINAL TRIAL CAN BE IMAGINED. 

NO PENDING PROSECUTIONS ARE SOUGHT TO BE ENJOINED, ONLY FUTURE
ONES.  /9/  SUCH AN INJUNCTION IS NOT IMPERMISSIBLE UNDER 28 U.S.C.
2283.  SEE DOMBROWSKI V. PFISTER, 380 U.S. 479, 484 N. 2, AND MY
DISSENT IN YOUNGER V. HARRIS, ANTE, AT 65.  APPELLEE ALSO ASKED FOR
DECLARATORY RELIEF.  IF ZWICKLER V. KOOTA, 389 U.S. 241, MEANS
ANYTHING, IT MEANS THAT SUCH RELIEF CAN ALSO BE GRANTED. 

        III 

IF A PUBLICATION DEEMED "OBSCENE" IS NOT UNDER THE UMBRELLA OF THE
FIRST AMENDMENT, THEN I DO NOT SEE HOW IT ENJOYS MANY CONSTITUTIONAL
SAFEGUARDS.  THAT WHICH IS OUT FROM UNDER THE FIRST AMENDMENT WOULD
NORMALLY BE SUBJECT TO THE POLICE POWER OF THE STATES.  YET THE
CONSTITUTION CONTAINS NO STANDARDS OR SUGGESTIONS OF STANDARDS
RESPECTING THE VAST ARRAY OF SUBJECTS THAT VARIOUS VOCAL GROUPS WOULD
LIKE TO HAVE SUPPRESSED-- OBSCENITY, SACRILEGE, UN-AMERICANISM, ANTI
CLERICAL IDEAS, ATHEISTIC OR ANTI-ECCLESIASTICAL IDEAS, COMMUNISM,
RACISM, AND SO ON.  UNDER THE CONSTITUTION AS WRITTEN THERE ARE NO
STANDARDS OF "GOOD" OR "BAD" FOR THE PRESS.  SINCE THERE IS NO
CONSTITUTIONAL DEFINITION OF OBSCENITY, THE DEFINITION MUST BE LARGELY,
IF NOT EXCLUSIVELY, FOR LEGISLATIVE DETERMINATION.  ABSENT A
CONTROLLING CONSTITUTIONAL STANDARD, I WOULD THINK THAT A LEGISLATURE
COULD TREAT LITERATURE AS IT TREATS SEWAGE EFFLUENT OR INFECTIOUS
DISEASE.  THAT IS NOT A HAPPY PROSPECT, FOR SOME WOULD PUT EVEN THE
SONG OF SOLOMON UNDER THE BAN.  IT IS, I FEAR, WHERE WE END ONCE WE
LOSE OUR FIRST AMENDMENT MOORINGS.  ADMINISTRATIVE CENSORSHIP, HOWEVER,
IS ONE THING.  CRIMINAL PUNISHMENT IS QUITE ANOTHER.  PUBLISHING
"OBSCENE" LITERATURE CANNOT, AS I VIEW IT, BE MADE A CRIME UNDER OUR
CONSTITUTIONAL STANDARDS. 

"WHATEVER 'OBSCENITY' IS, IT IS IMMEASURABLE AS A CRIME AND
DELINEABLE ONLY AS A SIN.  AS A SIN, IT IS PRESENT ONLY IN THE MINDS OF
SOME AND NOT IN THE MINDS OF OTHERS.  IT IS ENTIRELY TOO SUBJECTIVE FOR
LEGAL SANCTION.  THERE ARE AS MANY DIFFERENT DEFINITIONS OF OBSCENITY
AS THERE ARE MEN; AND THEY ARE AS UNIQUE TO THE INDIVIDUAL AS ARE HIS
DREAMS."  NOTE, THE SUBSTANTIVE LAW OF OBSCENITY: AN ADVENTURE IN
QUICKSAND, 13 N.Y.L.F. 81, 131 (1967). 

WHAT APPEALS TO "PRURIENT INTERESTS" DESCRIBES SIN TO SOME BUT NOT
TO OTHERS AND SEEMS TO ME TO BE FAR TOO VAGUE TO PASS MUSTER AS A
CRIMINAL, AS DISTINGUISHED FROM AN ADMINISTRATIVE, STATUTE.  /10/ 

I SEE NO HELP ON THE VAGUENESS PROBLEM EVEN IF THE TEST "UTTERLY
WITHOUT REDEEMING SOCIAL IMPORTANCE" WERE ADDED TO THE CRIMINAL
STANDARD, AS IT WAS IN JACOBELLIS V. OHIO, 378 U.S. 184, 191.  /11/
THAT IS A MEASUREMENT WHICH AGAIN IS WHOLLY SUBJECTIVE.  IT CANNOT BE
RELATED TO ANYTHING BUT THE JUDGE'S OR JURORS' SOPHISTICATION OR STAGE
OF CULTURAL DEVELOPMENT.  NOR DO I THINK THE PROBLEM IS HELPED BY
INTRODUCING THE CONCEPT OF "CONTEMPORARY COMMUNITY STANDARDS" WHETHER
THAT REFERS TO THE PUBLIC AT LARGE OR A LOCAL COUNTY OR TOWN STANDARD. 
ID., AT 193. 

THE TWO TESTS-- THIS COURT'S AND THAT OF TEXAS-- SEEM TO ME TO BE
SUBSTANTIALLY IDENTICAL.  I DO NOT SEE HOW EITHER CAN BE HELD TO BE
CONSTITUTIONAL.  THE STANDARD OF GUILT IS WHOLLY SUBJECTIVE.  THE
JURORS CAN CONVICT OR ACQUIT ACCORDING TO THEIR OWN PERSONAL TASTES,
THEIR CULTURAL STANDARD, THEIR LITERACY, AND THEIR TOLERANCE FOR
OPPOSED IDEAS.  AND THE SAME WOULD BE TRUE OF JUDGES.  IT MEANS THAT A
BOOK THAT IS HAILED AS WHOLESOME IN ONE COUNTY MAY BE THE CAUSE OF
PUNISHMENT IN ANOTHER COUNTY OF THE SAME STATE. 

THE EVIDENCE IN OBSCENITY PROSECUTIONS IS USUALLY EXPERT TESTIMONY. 
ANALYSTS, ENGLISH LITERATURE SCHOLARS, AND OTHERS OFTEN HAVE HELPFUL
AND INFORMED VIEWS, ONE WAY OR THE OTHER.  IT SEEMS IMPOSSIBLE, IF WE
CONTINUE TO SANCTION THE USE OF THESE VAGUE STANDARDS IN CRIMINAL
PROSECUTIONS, THAT VERDICTS WILL BE RENDERED WHICH ARE BASED ON THE
RECORD AND NOT ON THE EMOTIONAL FACTORS REFLECTING THE PREJUDICES OF
THE JUDGE OR JURORS. 

UNCERTAINTY, RATHER THAN CERTAINTY, IS THE STANDARD.  THE BOOK,
PLAY, POEM, OR MOVIE IS APPROVED OR CONDEMNED ON THE BASIS OF THE
PERSONAL BELIEFS OF THE JUDGE OR JURORS, NOT ON THE BAN OF A STATUTE
CONTAINING CLEAR AND OBJECTIVE STANDARDS. 

THE CONCEPT OF "UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE" WILL
DIVIDE EVEN THE EXPERTS.  IT IS RISKY AND PERILOUS BUSINESS TO SEND MEN
TO PRISON ON SUCH PROVOCATIVE ISSUES, WHICH CONFUSE PEOPLE AND CREATE
IRRECONCILABLE DIFFERENCES EVEN AMONG THE JUDGES WHO SENTENCE THEM OR
APPROVE THEIR CONVICTIONS. 

IN THESE CRIMINAL CASES DEALING WITH OBSCENITY, WE LEAVE PEOPLE
CONFUSED AND IN THE DARK AS TO WHETHER THEY ARE OR ARE NOT CRIMINALS. 
CRIMINAL LAWS MUST GIVE FAIR WARNING; AND A PERSON RECEIVES NO REAL
WARNING WHEN HE CROSSES THE LINE BETWEEN THE LAWFUL AND THE UNLAWFUL,
UNDER THE TEXAS STATUTE /12/  OR UNDER THE STANDARD APPROVED BY THE
COURT. 

WHERE CONSTITUTIONAL RIGHTS MAY BE INFRINGED, WINTERS V. NEW YORK,
333 U.S. 507, SHOULD BE OUR GUIDE.  THERE AN "OBSCENE" MAGAZINE WAS
DEFINED TO INCLUDE THOSE WHICH "MASSED" STORIES OF BLOODSHED AND LUST
TO INCITE CRIMES.  ID., AT 513.  WE HELD THAT STANDARD TO BE TOO VAGUE
TO SATISFY CONSTITUTIONAL STANDARDS.  /13/ 

"THE STANDARDS OF CERTAINTY IN STATUTES PUNISHING FOR OFFENSES IS
HIGHER THAN IN THOSE DEPENDING PRIMARILY UPON CIVIL SANCTION FOR
ENFORCEMENT.  THE CRIME 'MUST BE DEFINED WITH APPROPRIATE
DEFINITENESS.'  . . . THERE MUST BE ASCERTAINABLE STANDARDS OF GUILT. 
MEN OF COMMON INTELLIGENCE CANNOT BE REQUIRED TO GUESS AT THE MEANING
OF THE ENACTMENT.  THE VAGUENESS MAY BE FROM UNCERTAINTY IN REGARD TO
PERSONS WITHIN THE SCOPE OF THE ACT, . . . OR IN REGARD TO THE
APPLICABLE TESTS TO ASCERTAIN GUILT."  ID., AT 515-516.  AND SEE WRIGHT
V. GEORGIA, 373 U.S. 284, 292; SMITH V. CALIFORNIA, 361 U.S. 147, 151;
UNITED STATES V. HARRISS, 347 U.S. 612; BEAUHARNAIS V. ILLINOIS, 343
U.S. 250, 264; WILLIAMS V. UNITED STATES, 341 U.S. 97; CANTWELL V.
CONNECTICUT, 310 U.S. 296. 

MY VIEW, HOWEVER, IS THAT ANY REGIME OF CENSORSHIP OVER LITERATURE
WHETHER EXPRESSED IN A CRIMINAL STATUTE /14/  OR AN ADMINISTRATIVE /15/
PROCEDURE IS UNCONSTITUTIONAL BY REASON OF THE COMMAND OF THE FIRST
AMENDMENT. 

/1/  THIS INDISCRIMINATE SEIZURE IS HARDLY SURPRISING SINCE NONE OF
THE OFFICERS KNEW WHAT TO SEIZE, AS THE QUESTIONING OF THE LIEUTENANT
IN CHARGE OF THE RAID SHOWS: 

"Q.  WHAT INSTRUCTIONS DID YOU GIVE THE OFFICERS IN EFFECTING THIS
SEARCH AND SEIZURE AS TO WHAT THEY WERE TO DO? 

"A.  THEY WERE TO SEARCH FOR ANY ABSCENE MATERIAL THEY COULD FIND. 
ALL OF OUR OFFICERS KNOW WHAT OBSCENE MATERIAL IS. 

"Q.  WHAT IS OBSCENE MATERIAL? 

"A.  WELL, I WISH YOU HADN'T ASK (SIC) THAT.  I TAKE THAT BACK.  THEY
DON'T KNOW, NEITHER DO I. 

"Q.  WHAT INSTRUCTIONS HAD YOU GIVEN THEM IN TERMS OF WHAT THEY WERE
TO DO? 

"A.  TO SEARCH FOR OBSCENE MATERIAL AND SEIZE IT. 

"Q.  WHAT DEFINITION, IF ANY, DID YOU GIVE THEM AS TO OBSCENE
MATERIAL? 

"A.  I DIDN;T." 

/2/  APPELLEE STEIN HAS SINCE REACHED AN AGREEMENT WITH THE DALLAS
POLICE DEPARTMENT BY WHICH IT RETURNED MOST OF THE PROPERTY TO HIM IN
RETURN FOR HIS EXECUTION OF AN INDEMNITY AND RELEASE AGREEMENT.  THE
BINDING EFFECT OF SUCH AN AGREEMENT, WHICH REQUIRED STEIN TO CHOOSE
BETWEEN THE RETURN OF HIS PROPERTY SO THAT HE COULD CONTINUE
PUBLISHING, AND ASSERTION OF HIS CIVIL RIGHTS UNDER SUCH PROVISIONS AS
42 U.S.C. 1983, IS NOT AT ISSUE HERE. 

THE DALLAS POLICE DEPARTMENT STILL HOLDS "FILM NEGATIVES, EIGHT OR
TEN PHOTOGRAPHS, ONE MOVIE ADVERTISEMENT POSTER, ONE LITHO COPY OF
PAPER, AND A REPRESENTATIVE NUMBER OF BACK ISSUES OF PAPER ENTITLED
'DALLAS NOTES' OR 'NOTES FROM THE UNDERGROUND.'" 

/3/  ARTICLE 527 DEFINED "OBSCENE" AS FOLLOWS IN SEC. 3: 

"(WHETHER TO THE AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY
STANDARDS, THE DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE APPEALS
TO PRURIENT INTERESTS.  PROVIDED, FURTHER, FOR THE PURPOSE OF THIS
ARTICLE, THE TERM 'CONTEMPORARY COMMUNITY STANDARDS' SHALL IN NO CASE
INVOLVE A TERRITORY OR GEOGRAPHIC AREA LESS THAN THE STATE OF TEXAS." 

AFTER THE THREE-JUDGE COURT DECISION, ART. 527 WAS AMENDED TO DEFINE
"OBSCENE" AS "MATERIAL (A) THE DOMINANT THEME OF WHICH, TAKEN AS A
WHOLE, APPEALS TO A PRURIENT INTEREST; (B) WHICH IS PATENTLY OFFENSIVE
BECAUSE IF AFFRONTS CONTEMPORARY COMMUNITY STANDARDS RELATING TO THE
DESCRIPTION OR REPRESENTATION OF SEXUAL MATTERS; AND (C) WHICH IS
UTTERLY WITHOUT REDEEMING SOCIAL VALUE." 

AND "PRURIENT INTEREST" WAS DEFINED AS "A SHAMEFUL OR MORBID
INTEREST IN NUDITY, SEX, OR EXCRETION, WHICH GOES SUBSTANTIALLY BEYOND
CUSTOMARY LIMITS OF CANDOR IN DESCRIPTION OR REPRESENTATION OF SUCH
MATTERS.  IF IT APPEARS FROM THE CHARACTER OF THE MATERIAL OR THE
CIRCUMSTANCES OF ITS DISSEMINATION THAT THE SUBJECT MATTER IS DESIGNED
FOR A SPECIALLY SUSCEPTIBLE AUDIENCE, THE APPEAL OF THE SUBJECT MATTER
SHALL BE JUDGED WITH REFERENCE TO SUCH AUDIENCE."  TEX. PENAL CODE,
ART. 527, SEC. 1 (SUPP. 1970-1971). 

/4/  THE APPELLEE DID NOT APPEAL FROM THE DECISION OF THE DISTRICT
COURT TO REMAND THE ISSUE OF HARASSMENT TO A ONE-JUDGE COURT,
APPARENTLY SINCE THE RULING THAT THE STATUTE WAS UNCONSTITUTIONAL MADE
SUCH FURTHER RELIEF UNNECESSARY, AS ALL THE HARASSMENT RESULTED FROM
THE ENFORCEMENT OF THE STATUTE.  IN THIS COURT APPELLEE HAS ARGUED THAT
HIS "CONSTITUTIONAL RIGHTS (ARE) THREATENED BY THE EXISTENCE OF THE
TEXAS OBSCENITY STATUTE AND THE OVERBEARING MEANS CHOSEN TO ENFORCE
IT."  HE HAS RAISED THE ISSUE OF HARASSMENT HERE AND THE DOCUMENTARY
EVIDENCE IN SUPPORT OF HIS CLAIM IS OVERWHELMING. 

/5/ THE FIRST AMENDMENT, ORIGINALLY APPLICABLE ONLY TO THE FEDERAL
GOVERNMENT, WAS BY VIRTUE OF THE FOURTEENTH AMENDMENT MADE APPLICABLE
TO THE STATES IN 1931 IN STROMBERG V. CALIFORNIA, 283 U.S. 359. 

/6/  THOMAS JEFFERSON WROTE, "I DEPLORE . . . THE PUTRID STATE INTO
WHICH OUR NEWSPAPERS HAVE PASSED, AND THE MALIGNITY, THE VULGARITY, AND
MENDACIOUS SPIRIT OF THOSE WHO WRITE THEM . . . IT IS HOWEVER AN EVIL
FRO WHICH THERE IS NO REMEDY, OUR LIBERTY DEPENDS ON THE FREEDOM OF THE
PRESS, AND THAT CANNOT BE LIMITED WITHOUT BEING LOST."  JEFFERSON,
DEMOCRACY, SELECTED AND ARRANGED BY S. PADOVER 150-151 (1939). 

/7/  MR. JUSTICE BRANDEIS, CONCURRING WHITNEY V. CALIFORNIA, 274
U.S. 357, 375-376, SAID: 

"THOSE WHO WON OUR INDEPENDENCE . . . BELIEVED THAT FREEDOM TO THINK
AS YOU WILL AND TO SPEAK AS YOU THINK ARE MEANS INDISPENSABLE TO THE
DISCOVERY AND SPREAD OF POLITICAL TRUTH; THAT WITHOUT FREE SPEECH AND
ASSEMBLY DISCUSSION WOULD BE FUTILE; THAT WITH THEM, DISCUSSION AFFORDS
ORDINARILY ADEQUATE PROTECTION AGAINST THE DISSEMINATION OF NOXIOUS
DOCTRINE; THAT THE GREATEST MENACE TO FREEDOM IS AN INERT PEOPLE; THAT
PUBLIC DISCUSSION IS A POLITICAL DUTY; AND THAT THIS SHOULD BE A
FUNDAMENTAL PRINCIPLE OF THE AMERICAN GOVERNMENT . . . BELIEVING IN THE
POWER OF REASON AS APPLIED THROUGH PUBLIC DISCUSSION, THEY ESCHEWED
SILENCE COERCED BY LAW-- THE ARGUMENT OF FORCE IN ITS WORST FORM. 
RECOGNIZING THE OCCASIONAL TYRANNIES OF GOVERNING MAJORITIES, THEY
AMENDED THE CONSTITUTION SO THAT FREE SPEECH AND ASSEMBLY SHOULD BE
GUARANTEED." 

/8/  WE DEAL WITH A LARGE AND CONSIDERABLE PROBLEM.  THERE ARE THOSE
WHO BELIEVE THAT AN "ETHIC OF SEXUALITY JOINED WITH AN ETHIC OF THE
WHOLENESS OF LIFE" (F. DARLING, WILDERNESS AND PLENTY 75 (1970) HAS A
CLOSE RELATION NOT ONLY TO POPULATION CONTROL BUT TO A REVERENCE FOR
BOTH THE LAND AND ANIMAL LIFE. 

/9/  THE AMENDED COMPLAINT ASKED FOR AN INJUNCTION ONLY AGAINST
FUTURE ARRESTS AND PROSECUTIONS UNDER THE TEXAS STATUTE, ART. 527, AND
A DECLARATION THAT THE STATUTE WAS UNCONSTITUTIONAL.  SEE N. 3, SUPRA. 

/10/  THIS BUSINESS OF LEVELING THE POWER OF THE FEDERAL OR STATE
GOVERNMENT AGAINST A PERSON IN A CRIMINAL PROSECUTION IS AN "AWESOME"
POWER AS MR. JUSTICE BLACK HAS STATED: 

"EXPERIENCE, AND WISDOM FLOWING OUT OF THAT EXPERIENCE, LONG AGO LED
TO THE BELIEF THAT AGENTS OF GOVERNMENT SHOULD NOT BE VESTED WITH POWER
AND DISCRETION TO DEFINE AND PUNISH AS CRIMINAL PAST CONDUCT WHICH HAD
NOT BEEN CLEARLY DEFINED AS A CRIME IN ADVANCE."  GINZBURG V. UNITED
STATES, 383 U.S. 463, 477.     /11/  SEE N. 3, SUPRA. 

/12/  EVEN THE POLICE HAVE NO GUIDANCE AS TO THE KIND OF BOOKS TO BE
SEIZED.  SEE N. 1, SUPRA. 

/13/  EVEN WHERE FIRST AMENDMENT OR OTHER CONSTITUTIONAL RIGHTS ARE
NOT INVOLVED, NO ONE MAY BE REQUIRED "TO SPECULATE AS TO THE MEANING OF
PENAL STATUTES."  LANZETTA V. NEW JERSEY, 306 U.S. 451, 453.  CHIEF
JUSTICE MARSHALL SAID IN UNITED STATES V. WILTBERGER, 5 WHEAT.  76,
105, THAT IN DETERMINING THE CERTAINTY NEEDED IN A PENAL LAW FOR ITS
VALIDITY THE "PROBABILITY" THAT THE LEGISLATURE MAY HAVE DESIRED TO
INCLUDE A SPECIES OF ACTIVITY WITHIN AN ACT IS NOT ENOUGH.  AND SEE
UNITED STATES V. LACHER, 134 U.S. 624, 628; PIERCE V. UNITED STATES,
314 U.S. 306. 

/14/  SEE MR. JUSTICE BLACK'S OPINION IN KINGSLEY INTERNATIONAL
PICTURES CORP. V. REGENTS, 360 U.S. 684, 690 (CONCURRING). 

SEE MY OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 508
(DISSENTING); SMITH V. CALIFORNIA, 361 U.S. 147, 167 (CONCURRING);
GINZBURG V. UNITED STATES, 383 U.S. 463, 482 (DISSENTING). 

/15/  SEE MR. JUSTICE BLACK'S SEPARATE OPINION IN A QUANTITY OF
BOOKS V. KANSAS, 378 U.S. 205, 213. 

LONNY F. ZWIENER, ASSISTANT ATTORNEY GENERAL OF TEXAS, REARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WERE CRAWFORD C. MARTIN,
ATTORNEY GENERAL, NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL, PAT
BAILEY, EXECUTIVE ASSISTANT ATTORNEY GENERAL, ROBERT C. FLOWERS,
ASSISTANT ATTORNEY GENERAL, HENRY WADE, PRO SE, WILSON JOHNSTON, N.
ALEX BICKLEY, THOMAS B. THORPE, AND PRESTON DIAL. 

DAVID R. RICHARDS REARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEFS WAS MELVIN L. WULF. 

STANLEY FLEISHMAN FILED A BRIEF PRO SE ET AL. AS AMICI CURIAE URGING
AFFIRMANCE. 
..END :















BYRNE V. KARALEXIS, 401 U.S. 216 


       BYRNE, DISTRICT ATTORNEY OF SUFFOLK COUNTY, ET AL. V.

           KARALEXIS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS

        NO. 83.  ARGUED APRIL 30, 1970-- REARGUED NOVEMBER 17,

           1970-- DECIDED FEBRUARY 23, 1971. 


APPELLEES, INDICTED FOR VIOLATING THE MASSACHUSETTS OBSCENITY LAW AS
A RESULT OF EXHIBITING THE FILM, "I AM CURIOUS (YELLOW)," BROUGHT THIS
ACTION IN THE FEDERAL DISTRICT COURT FOR AN INJUNCTION AGAINST THE
ENFORCEMENT OF THE STATUTE AND FOR A DECLARATION OF ITS
UNCONSTITUTIONALITY.  A THREE-JUDGE DISTRICT COURT, HOLDING THAT
APPELLEES MIGHT BE IRREPARABLY INJURED IF UNABLE TO SHOW THE FILM,
GRANTED INJUNCTIVE RELIEF.  HELD:  THE DISTRICT COURT MADE NO FINDING
THAT THE THREAT TO APPELLEES' FEDERALLY PROTECTED RIGHTS "(COUNT) NOT
BE ELIMINATED BY (THEIR) DEFENSE AGAINST A SINGLE CRIMINAL
PROSECUTION," TO MEET THE GREAT AND IMMEDIATE IRREPARABLE INJURY
REQUIREMENT OF YOUNGER V. HARRIS, ANTE, P. 37, AT 46, BEFORE A FEDERAL
INJUNCTION OF STATE CRIMINAL PROCEEDINGS CAN PROPERLY ISSUE.  THE
JUDGMENT IS THEREFORE VACATED AND THE CASE REMANDED FOR RECONSIDERATION
IN THE LIGHT OF YOUNGER, SUPRA, AND SAMUELS V. MACKELL, ANTE, P. 66. 

306 F.SUPP.  1363, VACATED AND REMANDED. 

PER CURIAM. 

THIS IS AN APPEAL FROM THE ORDER OF A THREE-JUDGE COURT GRANTING A
PRELIMINARY INJUNCTION AGAINST ANY CIVIL OR CRIMINAL PROCEEDINGS IN
STATE COURTS AGAINST THE APPELLEES.  APPELLANT BYRNE IS THE DISTRICT
ATTORNEY OF SUFFOLK COUNTY, MASSACHUSETTS.  THE APPELLEES OWN AND
OPERATE A MOTION PICTURE THEATER IN BOSTON.  AS A RESULT OF EXHIBITING
THE FILM ENTITLED "I AM CURIOUS (YELLOW)" AT THEIR THEATER, APPELLEES
WERE CHARGED BY DISTRICT ATTORNEY BYRNE WITH VIOLATING MASSACHUSETTS
GENERAL LAWS, CHAPTER 272, SEC. 28A, WHICH PROHIBITS THE POSSESSION OF
OBSCENE FILMS FOR THE PURPOSE OF EXHIBITION.  /1/ 

AFTER THE FILING OF THE ORIGINAL STATE INDICTMENTS AGAINST THEM
APPELLEES BROUGHT THE PRESENT ACTION IN FEDERAL COURT.  /2/  THEY
SOUGHT AN INJUNCTION AGAINST BOTH PENDING AND FUTURE PROSECUTIONS UNDER
THE MASSACHUSETTS OBSCENITY LAW, AND A DECLARATION THAT THE STATE
OBSCENITY LAW WAS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED.  /3/
THE THREE-JUDGE DISTRICT COURT HELD THAT APPELLEES HAD A PROBABILITY OF
SUCCESS IN HAVING THE STATUTE DECLARED UNCONSTITUTIONAL, THAT
ABSTENTION WOULD BE IMPROPER, AND THAT APPELLEES MIGHT SUFFER
IRREPARABLE INJURY IF THEY WERE UNABLE TO SHOW THE FILM.  THE THREE
JUDGE COURT, ONE JUDGE DISSENTING, THEREFORE GRANTED A PRELIMINARY
INJUNCTION, FORBIDDING THE INITIATION OF ANY FUTURE PROSECUTIONS OR THE
EXECUTION OF THE SENTENCE IMPOSED IN THE STATE PROCEEDINGS THEN
PENDING.  306 F.SUPP.  1363 (1969).  THE DISTRICT ATTORNEY APPEALED. 
WE GRANTED A STAY OF THE DISTRICT COURT ORDER, 396 U.S. 976 (1969), AND
SUBSEQUENTLY NOTED PROBABLE JURISDICTION, 397 U.S. 985 (1970). 

IN DISCUSSING THE SUBJECT OF IRREPARABLE INJURY, THE COURT SAID: 

"WE DO NOT AGREE WITH DEFENDANT'S CONTENTION THAT THERE IS NO
INDICATION OF IRREPARABLE INJURY.  EVEN IF MONEY DAMAGES COULD BE
THOUGHT IN SOME CASES ADEQUATE COMPENSATION FOR DELAY, THIS DEFENDANT
WILL PRESUMABLY BE IMMUNE.  WE AGREE WITH PLAINTIFFS THAT THE BOX
OFFICE RECEIPTS, IF THERE IS A SUBSTANTIAL DELAY, CAN BE EXPECTED TO BE
SMALLER.  A MOVING PICTURE MAY WELL BE A DIMINISHING ASSET.  IT HAS
BEEN SAID, ALSO, THAT IN ASSESSING INJURY THE CHILLING EFFECT UPON THE
FREEDOM OF EXPRESSION OF OTHERS IS TO BE CONSIDERED.  SEE DOMBROWSKI V.
PFISTER, 1965, 380 U.S. 479, 486-489."  306 F.SUPP.,AT 1367.  THERE
WAS, HOWEVER, NO FINDING BY THE DISTRICT COURT THAT THE THREAT TO
APPELLEES' FEDERALLY PROTECTED RIGHTS IS "ONE THAT CANNOT BE ELIMINATED
BY (THEIR) DEGENSE AGAINST A SINGLE CRIMINAL PROSECUTION."  YOUNGER V.
HARRIS, ANTE, P. 37, AT 46.  BECAUSE THE DISTRICT COURT, IN CONSIDERING
THE PROPRIETY OF INJUNCTIVE AND DECLARATORY RELIEF IN THIS CASE, WAS
WITHOUT THE GUIDANCE PROVIDED TODAY BY OUR DECISIONS IN YOUNGER V.
HARRIS, SUPRA, AND SAMUELS V. MACKELL, ANTE, P. 66, WE VACATE THE
JUDGMENT BELOW AND REMAND FOR RECONSIDERATION IN LIGHT OF THOSE
DECISIONS. 

  IT IS SO ORDERED. 

/1/  MASS. GEN. LAWS, C. 272, SEC. 28A, PROVIDES: 

"IMPORTING, PRINTING, DISTRIBUTING OR POSSESSING OBSCENE THINGS. 

"WHOEVER IMPORTS, PRINTS, PUBLISHES, SELLS OR DISTRIBUTES A
PAMPHLET, BALLAD, PRINTED PAPER, PHONOGRAPHIC RECORD, OR OTHER THING
WHICH IS OBSCENE, INDECENT OR IMPURE, OR AN OBSCENE, INDECENT OR IMPURE
PRINT, PICTURE, FIGURE, IMAGE OR DESCRIPTION, OR BUYS, PROCURES,
RECEIVES OR HAS IN HIS POSSESSION ANY SUCH PAMPHLET, BALLAD, PRINTED
PAPER, PHONOGRAPHIC RECORD, OBSCENE, INDECENT OR IMPURE PRINT, PICTURE,
FIGURE, IMAGE OR OTHER THING, FOR THE PURPOSE OF SALE, EXHIBITION, LOAN
OR CIRCULATION, SHALL BE PUNISHED . . . " 

/2/  WHILE THE FEDERAL ACTION WAS PENDING THOSE INDICTMENTS WERE
DISMISSED FOR DEFECTS UNDER MASSACHUSETTS LAW AND NEW STATE INDICTMENTS
WERE RETURNED.  UNDER THESE CIRCUMSTANCES WE TREAT THE STATE
PROSECUTION AS PENDING AT THE TIME THE FEDERAL SUIT WAS INITIATED. 

/3/  THE APPELLEES' PRAYER FOR RELIEF, AS AMENDED, READ AS FOLLOWS: 

"WHEREFORE, PLAINTIFFS PRAY: 

"(1) THAT A PRELIMINARY INJUNCTION AND A PERMANENT INJUNCTION BE
GRANTED PROHIBITING THE DEFENDANT, HIS AGENTS OR SERVANTS, FROM ANY
FURTHER SEIZURES OF PRINTS OF THE MOTION PICTURE 'I AM CURIOUS
(YELLOW)' WITHOUT A PRIOR ADVERSARY PROCEEDING IN AN APPROPRIATE COURT
IN MASSACHUSETTS AS TO THE ALLEGED OBSCENITY OF THE MOTION PICTURE. 

"(2) THAT THE COURT ORDER THE DEFENDANT TO RETURN TO THE PLAINTIFFS
HEREIN THE PRINT OF THE MOTION PICTURE 'I AM CURIOUS (YELLOW)' SEIZED
BY THE DEFENDANT, HIS AGENTS OR SERVANTS, ON THURSDAY, MAY 29, 1969;
THAT THE COURT ORDER THE SUPPRESSION OF ITS EVIDENCE IN THE CASES NOW
PENDING AGAINST THE PLAINTIFFS HEREIN IN SUFFOLK SUPERIOR COURT AS
AFORESAID; BOTH FOR THE REASON THAT THERE WAS NO PRIOR ADVERSARY
PROCEEDING BEFORE SEIZURE OF THE PRINT, WHICH WAS THEN EXHIBITED TO THE
GRAND JURY AND THE BASIS UPON WHICH INDICTMENTS WERE RETURNED. 

"(3) THAT THIS COURT ORDER A PRELIMINARY INJUNCTION, AND THAT
FOLLOWING APPROPRIATE HEARING, A PERMANENT INJUNCTION, AGAINST THE
DEFENDANT, HIS AGENTS OR SERVANTS, FROM ANY FURTHER CONTINUATION OF THE
PROSECUTION OF THE PLAINTIFFS HEREIN IN THE SAID SIX ACTIONS NOW
PENDING IN THE SUFFOLK SUPERIOR COURT (DOCKET NUMBERS 42587, THROUGH
42592) UNTIL SUCH TIME AS THE SAID SECTIONS 32 AND 28A OF MASSACHUSETTS
GENERAL LAWS, CHAPTER 272, HAVE BEEN APPROPRIATELY ALTERED AND
AMENDED. 

"(4) YOUR PLAINTIFFS FURTHER PRAY THAT AN INJUNCTION ISSUE
RESTRAINING THIS PROSECUTION OF THE MOTION PICTURE 'I AM CURIOUS
(YELLOW),' OR ANY FURTHER PROSECUTION IN THIS JURISDICTION OF THE
MOTION PICTURE 'I AM CURIOUS (YELLOW)' ON THE GROUNDS THAT IT IS
'ALLEGEDLY OBSCENE.'  PLAINTIFFS CONTEND AND PRAY HEREIN ON THE BASIS
THAT ANY SUCH PROSECUTION IS 'WITHOUT HOPE OF SUCCESS.'  . . . 

"(5) THAT THIS COURT DECLARE AND SAY THAT SECTION 28A OF CHAPTER 272
OF THE MASSACHUSETTS GENERAL LAWS IS UNCONSTITUTIONAL OF (SIC) ITS
FACE, AND UNCONSTITUTIONAL IN ITS APPLICATION TO THE PLAINTIFFS HEREIN,
ALL IN ACCORDANCE WITH TITLE 28 U.S.C., 2201. 

"(6) THAT THIS COURT DECLARE AND SAY THAT THE MOTION PICTURE 'I AM
CURIOUS (YELLOW)' IS NOT OBSCENE WITHIN THE CONSTITUTIONAL DEFINITION
OF OBSCENITY AS SET FORTH BY THE UNITED STATES SUPREME COURT IN REDRUP
V. NEW YORK, 386 U.S. 767 (1967) . . . 

"(7) THAT THIS COURT RESTRAIN ANY FUTURE PROSECUTIONS OF THE MOTION
PICTURE 'I AM CURIOUS (YELLOW)' ON THE GROUNDS THAT IT IS 'ALLEGEDLY
OBSCENE' WITHIN THE TERMS OF SECTION 28A OF CHAPTER 272, FOR THE REASON
THAT THERE IS NO WAY THAT ANY FUTURE DEFENDANT IN SUCH PROSECUTION
COULD 'KNOW THE WORK TO BE OBSCENE.' 

"(8) THAT ANY FURTHER PROSECUTIONS OF THE MOTION PICTURE 'I AM
CURIOUS (YELLOW)' ON THE GROUNDS THAT IT IS 'ALLEGEDLY OBSCENE' AND
THEREFORE VIOLATIVE OF SECTION 28A OF CHAPTER 272 OF MASSACHUSETTS
GENERAL LAWS BE RESTRAINED UNTIL SUCH TIME AS THE MASSACHUSETTS COURTS
AFFIRM THAT THE STANDARDS FOR FINDING A WORK OBSCENE WITHIN THE
CONSTITUTIONAL DEFINITION OF OBSCENITY AS SET FORTH IN REDRUP V. NEW
YORK, SUPRA, ARE THAT-- (1) THAT THE WORK WAS BEING SHOWN TO THOSE
UNDER THE AGE OF 18; (2) OR THAT THE WORK WAS AN INVASION OF PRIVACY;
OR (3) THAT THE WORK WAS BEING ADVERTISED IN A 'PANDERING' MANNER. 

"(9) THAT THIS COURT ISSUE AN INJUNCTION RESTRAINING ANY FURTHER
PROSECUTIONS OF THE PLAINTIFFS HEREIN FOR THE SHOWING OF THE MOTION
PICTURE 'I AM CURIOUS (YELLOW)' ON THE GROUNDS THAT ANY PROSECUTION IS
'WITHOUT HOPE OF SUCCESS' . . . 

"(10) FOR SUCH OTHER AND FURTHER RELIEF AS THIS COURT SHALL DEEM
ESSENTIAL OR PROPER IN ACCORDANCE WITH EQUITY AND LAW." 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS APPEAL. 

(FOR CONCURRING OPINION OF MR. JUSTICE STEWART, SEE ANTE, P. 54.) 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE WHITE AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

THE INJUNCTION APPEALED FROM ISSUED DECEMBER 6, 1969, AFTER
APPELLEES' CONVICTIONS IN STATE COURT ON NOVEMBER 12, 1969, OF
EXHIBITING AN OBSCENE FILM IN VIOLATION OF STATE LAW.  IN THE ABSENCE
OF ANY SHOWING OF BAD FAITH OR HARASSMENT, APPELLEES WERE THEREFORE
OBLIGED TO PURSUE THEIR CONSTITUTIONAL DEFENSES ON APPEAL FROM THE
CONVICTIONS TO THE STATE APPELLATE COURT, AND THE FEDERAL DISTRICT
COURT ERRED IN ENJOINING APPELLANTS FROM INTERFERING WITH FUTURE
SHOWINGS OF THE FILM.  FREEDMAN V. MARYLAND, 380 U.S. 51, 60 (1965),
LIMITED TO PRESERVATION OF THE STATUS QUO FOR THE SHORTEST, FIXED
PERIOD COMPATIBLE WITH SOUND JUDICIAL RESOLUTION, ANY RESTRAINT IMPOSED
IN ADVANCE OF PROMPT, FINAL, JUDICIAL DETERMINATION OF THE QUESTION OF
THE FILM'S ALLEGED OBSCENITY.  SEE ALSO LEE ART THEATER V. VIRGINIA,
392 U.S. 636 (1968).  BUT THERE WAS INTERFERENCE FROM JULY THROUGH
NOVEMBER; APPELLANT BYRNE HONORED A STIPULATION MADE JULY 15 IN FEDERAL
COURT NOT TO SEIZE THE FILM OR INTERFERE WITH ITS EXHIBITION PENDING
THE OUTCOME OF THE TRIAL.  BYRNE WITHDREW FROM THE STIPULATION AND
THREATENED TO MOVE AGAINST FURTHER EXHIBITION OF THE FILM ONLY AFTER
THE CONVICTIONS WERE OBTAINED.  CLEARLY, HE WAS NOT REQUIRED TO
CONTINUE TO STAY HIS HAND PENDING THE OUTCOME OF APPEALS FROM THE
CONVICTIONS; FREEDMAN WAS SATISFIED BY A "PROMPT JUDICIAL DECISION BY
THE TRIAL COURT," TEITEL FILM CORP. V. CUSACK, 390 U.S. 139, 142
(1968); INTERSTATE CIRCUIT, INC. V. CITY OF DALLAS, 390 U.S. 676, 690
N. 22 (1968).  RATHER THAN REMAND I WOULD THEREFORE REVERSE THE
JUDGMENT OF THE DISTRICT COURT FOR THE REASONS STATED IN MY OPINION IN
PEREZ V. LEDESMA, ANTE, P. 93. 

ROBERT H. QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, PRO SE, REARGUED
THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WERE JOSEPH J. HURLEY,
FIRST ASSISTANT ATTORNEY GENERAL, JOHN J. IRWIN, JR., RUTH I. ABRAMS,
AND LAWRENCE P. COHEN, ASSISTANT ATTORNEYS GENERAL, GARRETT H. BYRNE,
PRO SE, AND THEODORE A. GLYNN, JR. 

NATHAN LEWIN AND ALAN M. DERSHOWITZ ARGUED THE CAUSE FOR APPELLEES
ON THE REARGUMENT.  EDWARD DE GRAZIA AND MR. LEWIN ARGUED THE CAUSE FOR
APPELLEES ON THE ORIGINAL ARGUMENT.  WITH THEM ON THE BRIEF WAS HERBERT
S. SWARTZ. 

PETER L. STRAUSS ARGUED THE CAUSE FOR THE UNITED STATES ON THE
REARGUMENT AS AMICUS CURIAE URGING REVERSAL.  FRANCIS X. BEYTAGH, JR.,
ARGUED THE CAUSE FOR THE UNITED STATES ON THE ORIGINAL ARGUMENT.  WITH
THEM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WILSON, JEROME M. FEIT, AND ROGER A. PAULEY. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY STANLEY
FLEISHMAN AND SAM ROSENWEIN FOR NATIONAL GENERAL CORP. ET AL., AND BY
THOMAS R. ASHER, MICHAEL SCHNEIDERMAN, AND MELVIN L. WULF FOR THE
AMERICAN CIVIL LIBERTIES UNION ET AL.
..END :
























UNITED STATES V. JORN, 400 U.S. 470 


       UNITED STATES V. JORN

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF UTAH

        NO. 19.  ARGUED JANUARY 12, 1970-- REARGUED OCTOBER 22,

           1970-- DECIDED JANUARY 25, 1971 


APPELLEE WAS TRIED IN FEDERAL DISTRICT COURT ON AN INFORMATION
CHARGING HIM WITH WILLFULLY ASSISTING IN THE PREPARATION OF FRAUDULENT
INCOME TAX RETURNS.  FOLLOWING THE INPANELING OF THE JURY, THE
PROSECUTOR CALLED TO THE STAND A TAXPAYER WHOM APPELLEE ALLEGEDLY HAD
AIDED IN PREPARING HIS RETURN.  AT DEFENSE COUNSEL'S SUGGESTION, THE
JUDGE WARNED THE WITNESS OF HIS CONSTITUTIONAL RIGHTS.  THE WITNESS
EXPRESSED HIS WILLINGNESS TO TESTIFY, STATING THAT HE HAD BEEN WARNED
OF HIS RIGHTS WHEN FIRST CONTACTED BY THE INTERNAL REVENUE SERVICE
(IRS).  THE JUDGE REFUSED TO PERMIT HIM TO TESTIFY UNTIL HE HAD
CONSULTED AN ATTORNEY, INDICATING THAT HE DID NOT BELIEVE THE WITNESS
HAD BEEN WARNED BY THE IRS.  ALTHOUGH THE PROSECUTOR ADVISED THE JUDGE
THAT THE REMAINING WITNESSES HAD BEEN WARNED OF THEIR RIGHTS BY THE IRS
UPON INITIAL CONTACT, THE JUDGE STATED THAT THE WARNINGS WERE PROBABLY
INADEQUATE.  THEREUPON HE DISCHARGED THE JURY AND ABORTED THE TRIAL SO
THAT THE WITNESSES COULD CONSULT WITH ATTORNEYS.  THE CASE WAS SET FOR
RETRIAL BEFORE ANOTHER JURY, BUT ON APPELLEE'S PRETRIAL MOTION THE
JUDGE DISMISSED THE INFORMATION ON THE GROUND OF FORMER JEOPARDY.  THE
GOVERNMENT FILED A DIRECT APPEAL TOTHIS COURT.  HELD:  THE JUDGMENT IS
AFFIRMED.  PP. 473-488. 

AFFIRMED. 

MR. JUSTICE HARLAN, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE MARSHALL, CONCLUDED THAT: 

1.  THE SUSTAINMENT OF A MOTION IN BAR BASED ON A PLEA OF FORMER
JEOPARDY IS APPEALABLE BY THE GOVERNMENT, AS LONG AS THE MOTION WAS
SUSTAINED, AS HERE, PRIOR TO THE IMPANELING OF THE JURY IN THE
SUBSEQUENT PROCEEDING AT WHICH THE MOTION WAS MADE.  CF. UNITED STATES
V. SISSON, 397 U.S. 267.  PP. 473-478. 

2.  THE FIFTH AMENDMENT'S DOUBLE JEOPARDY CLAUSE REPRESENTS A
CONSTITUTIONAL POLICY OF FINALITY FOR THE DEFENDANT'S BENEFIT IN
FEDERAL CRIMINAL PROCEEDINGS.  PP. 479-486. 

(A) ALTHOUGH IT IS RECOGNIZED THAT A DEFENDANT CAN BE REPROSECUTED
AFTER A SUCCESSFUL APPEAL, DOUBLE JEOPARDY POLICIES ARE NOT CONFINED TO
THE PREVENTION OF PROSECUTORIAL OR JUDICIAL OVERREACHING.  PP. 483
484. 

(B) THE DEFENDANT HAS THE OPTION TO HAVE HIS CASE CONSIDERED BY THE
FIRST JURY, AND WHERE THE JUDGE, ACTING WITHOUT DEFENDANT'S CONSENT,
ABORTS THE TRIAL, THE DEFENDANT HAS BEEN DEPRIVED OF HIS "VALUED RIGHT
TO HAVE HIS TRIAL COMPLETED BY A PARTICULAR TRIBUNAL."  P. 484. 

(C) IN THE ABSENCE OF DEFENDANT'S MOTION FOR A MISTRIAL, THE
DOCTRINE OF "MANIFEST NECESSITY," UNITED STATES V. PEREZ, 9 WHEAT. 
579, 580, COMMANDS TRIAL JUDGES NOT TO FORECLOSE THE DEFENDANT'S OPTION
UNTIL A SCRUPULOUS EXERCISE OF JUDICIAL DISCRETION WARRANTS THE
CONCLUSION THAT JUSTICE WOULD NOT BE SERVED BY A CONTINUATION OF THE
TRIAL.  PP. 485-486. 

(D) A JUDGE MUST TEMPER THE DECISION WHETHER OR NOT TO SHORT THE
TRIAL BY CONSIDERING THE IMPORTANCE TO THE DEFENDANT OF BEING ABLE
FINALLY TO CONCLUDE HIS CONFRONTATION WITH SOCIETY THROUGH THE VERDICT
OF A TRIBUNAL THAT HE MIGHT BELIEVE IS FAVORABLE TO HIM.  P. 480. 

3.  THE TRIAL JUDGE HERE ABUSED HIS DISCRETION, AND ACCORDINGLY
APPELLEE'S REPROSECUTION WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE.  PP.
486-487. 

MR. JUSTICE BLACK AND MR. JUSTICE BRENNAN CONCLUDED THAT THE COURT
LACKS JURISDICTION OF THE APPEAL UNDER 18 U.S.C. 3731 BECAUSE THE TRIAL
JUDGE'S ACTION AMOUNTED TO AN ACQUITTAL, BUT THEY JOIN THE COURT'S
JUDGMENT IN VIEW OF THE DECISION OF A MAJORITY OF THE COURT TO REACH
THE MERITS.  PP. 487-488. 

STEWART, J., JOINED BY WHITE AND BLACKMUN, JJ., AGREE ONLY THAT THE
COURT HAS JURISDICTION OF THE APPEAL, AS CONCLUDED BY HARLAN, J. SEE
POINT 1 OF SYLLABUS, SUPRA. 

HARLAN, J., ANNOUNCED THE JUDGMENT OF THE COURT IN AN OPINION IN
WHICH BURGER, C.J., AND DOUGLAS AND MARSHALL, JJ., JOINED.  BURGER,
C.J., FILED A CONCURRING OPINION, POST, P. 487.  BLACK AND BRENNAN,
JJ., FILED A STATEMENT CONCURRING IN THE JUDGMENT, POST, P. 488. 
STEWART, J., FILED A DISSENTING OPINION IN WHICH WHITE AND BLACKMUN,
JJ., JOINED, POST, P. 488. 

MR. JUSTICE HARLAN ANNOUNCED THE JUDGMENT OF THE COURT IN AN OPINION
JOINED BY THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, AND MR. JUSTICE
MARSHALL. 

THE GOVERNMENT DIRECTLY APPEALS THE ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF UTAH DISMISSING, ON THE GROUND OF
FORMER JEOPARDY, AN INFORMATION CHARGING THE DEFENDANT-APPELLEE WITH
WILLFULLY ASSISTING IN THE PREPARATION OF FRAUDULENT INCOME TAX
RETURNS, IN VIOLATION OF 26 U.S.C. 7206(2). 

APPELLEE WAS ORIGINALLY CHARGED IN FEBRUARY 1968 WITH 25 COUNTS OF
VIOLATING SEC. 7206(2).  HE WAS BROUGHT TO TRIAL BEFORE CHIEF JUDGE
RITTER ON AUGUST 27, 1968.  AFTER THE JURY WAS CHOSEN AND SWORN, 14 OF
THE COUNTS WERE DISMISSED ON THE GOVERNMENT'S MOTION.  THE TRIAL THEN
COMMENCED, THE GOVERNMENT CALLING AS ITS FIRST WITNESS AN INTERNAL
REVENUE SERVICE AGENT IN ORDER TO PUT IN EVIDENCE THE REMAINING 11
ALLEGEDLY FRAUDULENT INCOME TAX RETURNS THE DEFENDANT WAS CHARGED WITH
HELPING TO PREPARE.  AT THE TRIAL JUDGE'S SUGGESTION, THESE EXHIBITS
WERE STIPULATED TO AND INTRODUCED IN EVIDENCE WITHOUT OBJECTION.  THE
GOVERNMENT'S FIVE REMAINING WITNESSES WERE TAXPAYERS WHOM THE DEFENDANT
ALLEGEDLY HAD AIDED IN PREPARATION OF THESE RETURNS. 

AFTER THE FIRST OF THESE WITNESSES WAS CALLED, BUT PRIOR TO THE
COMMENCEMENT OF DIRECT EXAMINATION, DEFENSE COUNSEL SUGGESTED THAT
THESE WITNESSES BE WARNED OF THEIR CONSTITUTIONAL RIGHTS.  THE TRIAL
COURT AGREED AND PROCEEDED, IN CAREFUL DETAIL, TO SPELL OUT THE
WITNESS' RIGHT NOT TO SAY ANYTHING THAT MIGHT BE USED IN A SUBSEQUENT
CRIMINAL PROSECUTION AGAINST HIM AND HIS RIGHT, IN THE EVENT OF SUCH A
PROSECUTION, TO BE REPRESENTED BY AN ATTORNEY.  THE FIRST WITNESS
EXPRESSED A WILLINGNESS TO TESTIFY AND STATED THAT HE HAD BEEN WARNED
OF HIS CONSTITUTIONAL RIGHTS WHEN THE INTERNAL REVENUE SERVICE FIRST
CONTACTED HIM.  THE TRIAL JUDGE INDICATED HOWEVER, THAT HE DID NOT
BELIEVE THE WITNESS HAD BEEN GIVEN ANY WARNING AT THE TIME HE WAS FIRST
CONTACTED BY THE IRS, AND REFUSED TO PERMIT HIM TO TESTIFY UNTIL HE HAD
CONSULTED AN ATTORNEY. 

THE TRIAL JUDGE THEN ASKED THE PROSECUTING ATTORNEY IF HIS REMAINING
FOUR WITNESSES WERE SIMILARLY SITUATED.  THE PROSECUTOR RESPONDED THAT
THEY HAD BEEN WARNED OF THEIR RIGHTS BY THE IRS UPON INITIAL CONTACT. 
THE JUDGE, EXPRESSING THE VIEW THAT ANY WARNINGS THAT MIGHT HAVE BEEN
GIVEN WERE PROBABLY INADEQUATE, PROCEEDED TO DISCHARGE THE JURY; HE
THEN CALLED ALL THE TAXPAYERS INTO COURT, AND INFORMED THEM OF THEIR
CONSTITUTIONAL RIGHTS AND OF THE CONSIDERABLE DANGERS OF UNWITTINGLY
MAKING DAMAGING ADMISSIONS IN THESE FACTUAL CIRCUMSTANCES.  FINALLY, HE
ABORTED THE TRIAL SO THE WITNESSES COULD CONSULT WITH ATTORNEYS. 

THE CASE WAS SET FOR RETRIAL BEFORE ANOTHER JURY, BUT ON PRETRIAL
MOTION BY THE DEFENDANT, JUDGE RITTER DISMISSED THE INFORMATION ON THE
GROUND OF FORMER JEOPARDY.  THE GOVERNMENT FILED A DIRECT APPEAL TO
THIS COURT, AND WE NOTED PROBABLE JURISDICTION.  396 U.S. 810 (1969). 
THE CASE WAS ARGUED AT THE 1969 TERM AND THEREAFTER SET FOR REARGUMENT
AT THE PRESENT TERM.  397 U.S. 1060 (1970). 

        I 

APPELLEE CONTENDS AT THE THRESHOLD, THAT OUR DECISION IN UNITED
STATES V. SISSON, 399 U.S. 267, 302-307 (1970), WHICH FOLLOWED OUR
NOTING OF PROBABLE JURISDICTION IN THIS CASE, FORECLOSES APPEAL BY THE
GOVERNMENT UNDER THE MOTION-IN-BAR PROVISIONS OF 18 U.S.C. 3731 PRIOR
TO ITS RECENT AMENDMENT.  /1/  THE QUESTION WAS FULLY BRIEFED AND
ARGUED ON REARGUMENT. 

THE STATUTE PROVIDED, IN RELEVANT PART, FOR AN APPEAL BY THE
GOVERNMENT DIRECT TO THE SUPREME COURT "(FROM THE DECISION OR JUDGMENT
SUSTAINING A MOTION IN BAR, WHEN THE DEFENDANT HAS NOT BEEN PUT IN
JEOPARDY."  APPELLEE CONCEDES, AS INDEED HE MUST UNDER THE PRIOR
RULINGS OF THIS COURT, THAT HIS PLEA OF FORMER JEOPARDY CONSTITUTED A
"MOTION IN BAR" WITHIN THE MEANING OF THE STATUTE.  /2/  THE ISSUE IS
WHETHER APPELLEE HAD BEEN "PUT IN JEOPARDY" BY VIRTUE OF THE IMPANELING
OF THE JURY IN THE FIRST PROCEEDING BEFORE THE DECLARATION OF
MISTRIAL.  IN SISSON, SUPRA, THE OPINION OF THE COURT /3/  -- IN
DISCUSSING THE APPLICABILITY OF THE MOTION-IN-BAR PROVISION TO THE
GOVERNMENT'S DIRECT APPEAL OF THE TRIAL JUDGE'S ACTION THERE--
CONCLUDED, INTER ALIA, THAT THE "PUT IN JEOPARDY" LANGUAGE APPLIED
WHENEVER THE JURY HAD BEEN IMPANELED, EVEN IF THE DEFENDANT MIGHT
CONSTITUTIONALLY HAVE BEEN RETRIED UNDER THE DOUBLE JEOPARDY PROVISIONS
OF THE FIFTH AMENDMENT.  399 U.S.,AT 302-307.  /4/ 

HERE THE JURY IN THE FIRST PROCEEDING HAD BEEN IMPANELED BEFORE THE
MISTRIAL RULING, BUT APPELLEE'S MOTION TO DISMISS ON GROUNDS OF FORMER
JEOPARDY WAS MADE PRIOR TO THE EMPANELING OF THE SECOND JURY.  THE
GOVERNMENT CONTENDS THAT THE IMPANELING OF THE JURY MUST BE UNDERSTOOD
TO APPLY TO THE JURY WHOSE IMPANELING WAS, IN THE FIRST INSTANCE,
ESSENTIAL TO SUSTAIN THE PLEA ON THE MERITS.  APPELLEE CONTENDS THAT
THE CONSTRUCTION PUT ON THE STATUTE IN THE SISSON OPINION REQUIRES THE
CONCLUSION THAT THE GOVERNMENT MAY NOT APPEAL WHEN A JURY IN THE PRIOR
PROCEEDING FOR THE OFFENSE IN QUESTION HAS BEEN IMPANELED. 

WE THINK THE GOVERNMENT HAS THE BETTER OF THE ARGUMENT.  /5/  THE
COURT'S OPINION IN SISSON DEALT WITH THE PROBLEM PRESENTED BY THE TRIAL
JUDGE'S ORDER PURPORTING TO ARREST THE ENTRY OF JUDGMENT ON THE GUILTY
VERDICT RETURNED BY THE VERY JURY WHOSE IMPANELING WAS CLAIMED TO
CONSTITUTE "JEOPARDY" WITHIN THE MEANING OF THE MOTION-IN-BAR
PROVISION.  THE CONCLUSION THAT JEOPARDY HAD ATTACHED BY THE IMPANELING
OF THE JURY IN THAT PROCEEDING RESTED ON THE VIEW THAT THE CONGRESS WAS
CONCERNED, IN GRANTING THE GOVERNMENT APPEAL RIGHTS IN CERTAIN CLASSES
OF CASES, TO AVOID SUBJECTING THE DEFENDANT TO A SECOND TRIAL WHERE THE
FIRST TRIAL HAD TERMINATED IN A MANNER FAVORABLE TO THE DEFENDANT
EITHER BECAUSE OF A JURY VERDICT OR BECAUSE OF JUDICIAL ACTION.  SEE
SISSON, SUPRA, AT 293-300.  THE "COMPROMISE ORIGINS" OF THE CRIMINAL
APPEALS ACT, SEE ID., AT 307, REFLECTED THIS CONCERN, AND THAT CONCERN
IS AN IMPORTANT CONSIDERATION SUPPORTING THE CANON OF STRICT
CONSTRUCTION TRADITIONALLY APPLIED TO THIS STATUTE.  SEE ID., AT 296
300; WILL V. UNITED STATES, 389 U.S. 90, 96-98 (1967). 

IN THE MISTRIAL SITUATION, THE JUDICIAL RULING THAT IS
CHRONOLOGICALLY ANALOGOUS TO THE SISSON FACTS WOULD BE THE DECLARATION
OF A MISTRIAL AFTER THE FIRST JURY HAD BEEN IMPANELED.  OBVIOUSLY, THE
GOVERNMENT COULD NOT HAVE APPEALED JUDGE RITTER'S ORIGINAL DECLARATION
OF MISTRIAL.  SINCE A MISTRIAL RULING EXPLICITLY CONTEMPLATES
REPROSECUTION OF THE DEFENDANT, THE NONAPPEALABILITY OF THIS JUDICIAL
ACTION FITS WITH CONGRESSIONAL ACTION IN EXCLUDING PLEAS IN ABATEMENT
FROM THE CLASS OF CASES WARRANTING APPELLATE REVIEW.  THE NONAPPEALABLE
STATUS OF RULINGS OF THIS SORT IS FULLY EXPLAINABLE IN TERMS OF A
POLICY DISFAVORING APPEALS FROM INTERLOCUTORY RULINGS.  SEE THE
DISCUSSION IN WILL V. UNITED STATES, SUPRA, AT 96-98. 

BUT IT DOES NOT FOLLOW FROM THE NONAPPEALABILITY OF RULINGS WHICH
ARE ESSENTIALLY INTERLOCUTORY INSOFAR AS THEY EXPRESSLY CONTEMPLATE
RESUMPTION OF THE PROSECUTION, THAT CONGRESS INTENDED TO FORECLOSE
GOVERNMENTAL APPEAL FROM THE SUSTAINING OF A LATER MOTION IN BAR ON THE
TRIAL JUDGE'S CONCLUSION THAT CONSTITUTIONAL DOUBLE JEOPARDY POLICIES
REQUIRE THAT THE EARLIER MISTRIAL RULING NOW BE ACCORDED THE EFFECT OF
BARRING REPROSECUTION.  INDEED, WHEN WE RECALL THAT PLEAS OF FORMER
JEOPARDY WERE THE PARADIGN ILLUSTRATIONS OF MOTIONS IN BAR AT COMMON
LAW, SEE N. 2, SUPRA, IT SEEMS MUCH MORE LIKELY THAT THE CONGRESSIONAL
DECISION TO ALLOW GOVERNMENTAL APPEALS FROM THE JUDGE'S DECISION
SUSTAINING A MOTION IN BAR WAS INTENDED TO PERMIT REVIEW OF LATER
JUDICIAL ACTION POSSIBLY PREMISED ON ERRONEOUS THEORIES CONCERNING
CONSTITUTIONAL EFFECTS ATTACHING TO THE EARLIER INTERLOCUTORY RULING. 

CONSISTENTLY WITH THE COURT'S OPINION IN SISSON, THE SUSTAINING OF A
MOTION IN BAR BASED ON A PLEA OF FORMER JEOPARDY WOULD BE APPEALABLE AS
LONG AS THE MOTION IN BAR WAS SUSTAINED PRIOR TO THE IMPANELING OF THE
JURY IN THE SUBSEQUENT PROCEEDING.  /6/  SINCE JUDGE RITTER IN THIS
CASE DISMISSED THE INFORMATION ON APPELLEE'S PLEA OF FORMER JEOPARDY
PRIOR TO THE IMPANELING OF THE SECOND JURY, WE CONCLUDE THAT THE
DECISION IS DIRECTLY APPEALABLE BY THE GOVERNMENT AS A MOTION IN BAR
BEFORE THE DEFENDANT WAS "PUT IN JEOPARDY" WITHIN THE MEANING OF THE
APPLICABLE STATUTE.  HENCE WE PROCEED TO THE MERITS OF APPELLEE'S CLAIM
THAT REPROSECUTION AFTER THE DECLARATION OF MISTRIAL IN THE EARLIER
PROCEEDING WOULD VIOLATE HIS FIFTH AMENDMENT RIGHTS.  /7/

        II 

THE FIFTH AMENDMENT PROHIBITION AGAINST PLACING A DEFENDANT "TWICE
IN JEOPARDY" REPRESENTS A CONSTITUTIONAL POLICY OF FINALITY FOR THE
DEFENDANT'S BENEFIT IN FEDERAL CRIMINAL PROCEEDINGS.  /8/  A POWER IN
GOVERNMENT TO SUBJECT THE INDIVIDUAL TO REPEATED PROSECUTIONS FOR THE
SAME OFFENSE WOULD CUT DEEPLY INTO THE FRAMEWORK OF PROCEDURAL
PROTECTIONS WHICH THE CONSTITUTION ESTABLISHES FOR THE CONDUCT OF A
CRIMINAL TRIAL.  AND SOCIETY'S AWARENESS OF THE HEAVY PERSONAL STRAIN
WHICH A CRIMINAL TRIAL REPRESENTS FOR THE INDIVIDUAL DEFENDANT IS
MANIFESTED IN THE WILLINGNESS TO LIMIT THE GOVERNMENT TO A SINGLE
CRIMINAL PROCEEDING TO VINDICATE ITS VERY VITAL INTEREST IN ENFORCEMENT
OF CRIMINAL LAWS.  BOTH OF THESE CONSIDERATIONS ARE EXPRESSED IN GREEN
V. UNITED STATES, 355 U.S. 184, 187-188 (1957), WHERE THE COURT NOTED
THAT THE POLICY UNDERLYING THIS PROVISION "IS THAT THE STATE WITH ALL
ITS RESOURCES AND POWER SHOULD NOT BE ALLOWED TO MAKE REPEATED ATTEMPTS
TO CONVICT AN INDIVIDUAL FOR AN ALLEGED OFFENSE, THEREBY SUBJECTING HIM
TO EMBARRASSMENT, EXPENSE AND ORDEAL AND COMPELLING HIM TO LIVE IN A
CONTINUING STATE OF ANXIETY AND INSECURITY, AS WELL AS ENHANCING THE
POSSIBILITY THAT EVEN THOUGH INNOCENT HE MAY BE FOUND GUILTY."  THESE
CONSIDERATIONS HAVE LED THIS COURT TO CONCLUDE THAT A DEFENDANT IS
PLACED IN JEOPARDY IN A CRIMINAL PROCEEDING ONCE THE DEFENDANT IS PUT
TO TRIAL BEFORE THE TRIER OF THE FACTS, WHETHER THE TRIER BE A JURY OR
A JUDGE.  SEE GREEN V. UNITED STATES, SUPRA, AT 188; WADE V. HUNTER,
336 U.S. 684, 688 (1949). 

BUT IT IS ALSO TRUE THAT A CRIMINAL TRIAL IS, EVEN IN THE BEST OF
CIRCUMSTANCES, A COMPLICATED AFFAIR TO MANAGE.  THE PROCEEDINGS ARE
DEPENDENT IN THE FIRST INSTANCE ON THE MOST ELEMENTARY SORT OF
CONSIDERATIONS, E.G., THE HEALTH OF THE VARIOUS WITNESSES, PARTIES,
ATTORNEYS, JURORS, ETC., ALL OF WHOM MUST BE PREPARED TO ARRIVE AT THE
COURTHOUSE AT SET TIMES.  AND WHEN ONE ADDS THE SCHEDULING PROBLEMS
ARISING FROM CASE OVERLOADS, AND THE SIXTH AMENDMENT'S REQUIREMENT THAT
THE SINGLE TRIAL TO WHICH THE DOUBLE JEOPARDY PROVISION RESTRICTS THE
GOVERNMENT BE CONDUCTED SPEEDILY, IT BECOMES READILY APPARENT THAT A
MECHANICAL RULE PROHIBITING RETRIAL WHENEVER CIRCUMSTANCES COMPEL THE
DISCHARGE OF A JURY WITHOUT THE DEFENDANT'S CONSENT WOULD BE TOO HIGH A
PRICE TO PAY FOR THE ADDED ASSURANCE OF PERSONAL SECURITY AND FREEDOM
FROM GOVERNMENTAL HARASSMENT WHICH SUCH A MECHANICAL RULE WOULD
PROVIDE.  AS THE COURT NOTED IN WADE V. HUNTER, SUPRA, AT 689, "A
DEFENDANT'S VALUED RIGHT TO HAVE HIS TRIAL COMPLETED BY A PARTICULAR
TRIBUNAL MUST IN SOME CIRCUMSTANCES BE SUBORDINATED TO THE PUBLIC'S
INTEREST IN FAIR TRIALS DESIGNED TO END IN JUST JUDGMENTS." 

THUS THE CONCLUSION THAT "JEOPARDY ATTACHES" WHEN THE TRIAL
COMMENCES EXPRESSES A JUDGMENT THAT THE CONSTITUTIONAL POLICIES
UNDERPINNING THE FIFTH AMENDMENT'S GUARANTEE ARE IMPLICATED AT THAT
POINT IN THE PROCEEDINGS.  THE QUESTION REMAINS, HOWEVER, IN WHAT
CIRCUMSTANCES RETRIAL IS TO BE PRECLUDED WHEN THE INITIAL PROCEEDINGS
ARE ABORTED PRIOR TO VERDICT WITHOUT THE DEFENDANT'S CONSENT. 

IN DEALING WITH THAT QUESTION, THIS COURT HAS, FOR THE MOST PART,
EXPLICITLY DECLINED THE INVITATION OF LITIGANTS TO FORMULATE RULES
BASED ON CATEGORIES OF CIRCUMSTANCES WHICH WILL PERMIT OR PRECLUDE
RETRIAL.  THUS, IN UNITED STATES V. PEREZ, 9 WHEAT.  579 (1824), THIS
COURT HELD THAT A DEFENDANT IN A CAPITAL CASE MIGHT BE RETRIED AFTER
THE TRIAL JUDGE HAD, WITHOUT THB DEFENDANT'S CONSENT, DISCHARGED A JURY
THAT REPORTED ITSELF UNABLE TO AGREE.  MR. JUSTICE STORY'S OPINION FOR
THE COURT IN PEREZ EXPRESSED THE FOLLOWING THOUGHTS ON THE PROBLEM OF
REPROSECUTION AFTER A MISTRIAL HAD BEEN DECLARED WITHOUT THE CONSENT OF
THE DEFENDANT: 

"WE THINK, THAT IN ALL CASES OF THIS NATURE, THE LAW HAS INVESTED
COURTS OF JUSTICE 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.  THEY ARE TO
EXERCISE A SOUND DISCRETION ON THE SUBJECT; AND IT IS IMPOSSIBLE TO
DEFINE ALL THE CIRCUMSTANCES, WHICH WOULD RENDER IT PROPER TO
INTERFERE.  TO BE SURE, THE POWER OUGHT TO BE USED WITH THE GREATEST
CAUTION, UNDER URGENT CIRCUMSTANCES, AND FOR VERY PLAIN AND OBVIOUS
CAUSES; AND, IN THE CAPITAL ESPECIALLY, COURTS SHOULD BE EXTREMELY
CAREFUL HOW THEY INTERFERE WITH ANY OF THE CHANCES OF LIFE, IN FAVOUR
OF THE PRISONER.  BUT, AFTER ALL, THEY HAVE THE RIGHT TO ORDER THE
DISCHARGE; AND THE SECURITY WHICH THE PUBLIC HAVE FOR THE FAITHFUL,
SOUND, AND CONSCIENTIOUS EXERCISE OF THIS DISCRETION, RESTS, IN THIS,
AS IN OTHER CASES, UPON THE RESPONSIBILITY OF THE JUDGES, UNDER THEIR
OATHS OF OFFICE."  ID., AT 580.     THE PEREZ CASE HAS SINCE BEEN
APPLIED BY THIS COURT AS A STANDARD OF APPELLATE REVIEW FOR TESTING THE
TRIAL JUDGE'S EXERCISE OF HIS DISCRETION IN DECLARING A MISTRIAL
WITHOUT THE DEFENDANT'S CONSENT.  E.G., SIMMONS V. UNITED STATES, 142
U.S. 148 (1891) (REPROSECUTION NOT BARRED WHERE MISTRIAL DECLARED
BECAUSE LETTER PUBLISHED IN NEWSPAPER RENDERED JUROR'S IMPARTIALITY
DOUBTFUL); LOGAN V. UNITED STATES, 144 U.S. 263 (1892) (REPROSECUTION
NOT BARRED WHERE JURY DISCHARGED AFTER 40 HOURS OF DELIBERATION FOR
INABILITY TO REACH A VERDICT); THOMPSON V. UNITED STATES, 155 U.S. 271
(1894) (REPROSECUTION NOT BARRED WHERE JURY DISCHARGED BECAUSE ONE
JUROR HAD SERVED ON GRAND JURY INDICTING DEFENDANT); WADE V. HUNTER,
336 U.S. 684 (1949) (RETRIAL NOT BARRED WHERE MILITARY COURT-MARTIAL
DISCHARGED DUE TO TACTICAL NECESSITY IN THE FIELD).  /9/ 

BUT A MORE RECENT CASE-- GORI V. UNITED STATES, 367 U.S. 364 (1961)-
WHILE ADHERING IN THE MAIN TO THE PEREZ THEME OF A "MANIFEST
NECESSITY" STANDARD OF APPELLATE REVIEW-- DOES SUGGEST THE POSSIBILITY
OF A VARIATION ON THAT THEME ACCORDING TO A DETERMINATION BY THE
APPELLATE COURT AS TO WHICH PARTY TO THE CASE WAS THE BENEFICIARY OF
THE MISTRIAL RULING.  IN GORI, THE COURT WAS CALLED UPON TO REVIEW THE
ACTION OF A TRIAL JUDGE IN DISCHARGING THE JURY WHEN IT APPEARED TO THE
JUDGE THAT THE PROSECUTION'S QUESTIONING OF A WITNESS MIGHT LEAD TO THE
INTRODUCTION OF EVIDENCE OF PRIOR CRIMES.  WE UPHELD REPROSECUTION
AFTER THE MISTRIAL IN AN OPINION WHICH, WHILE APPLYING THE PRINCIPLE OF
PEREZ, APPEARS TO TIE THE JUDGMENT THAT THERE WAS NO ABUSE OF
DISCRETION IN THESE CIRCUMSTANCES TO THE FACT THAT THE JUDGE WAS ACTING
"IN THE SOLE INTEREST OF THE DEFENDANT."  367 U.S.,AT 369; SEE ALSO THE
DISSENTING OPINION OF MR. JUSTICE DOUGLAS, ID., AT 370.  /10/ 

IN THE INSTANT CASE, THE GOVERNMENT, RELYING PRINCIPALLY ON GORI,
CONTENDS THAT EVEN IF WE CONCLUDE THE TRIAL JUDGE HERE ABUSED HIS
DISCRETION, REPROSECUTION SHOULD BE PERMITTED BECAUSE THE JUDGE'S
RULING "BENEFITED" THE DEFENDANT AND ALSO CLEARLY WAS NOT COMPELLED BY
BAD-FAITH PROSECUTORIAL CONDUCT AIMED AT TRIGGERING A MISTRIAL IN ORDER
TO GET ANOTHER DAY IN COURT.  IF THE JUDGMENT AS TO WHO WAS "BENEFITED"
BY THE MISTRIAL RULING TURNS ON THE APPELLATE COURT'S CONCLUSION
CONCERNING WHICH PARTY THE TRIAL JUDGE WAS, IN POINT OF PERSONAL
MOTIVATION, TRYING TO PROTECT FROM PREJUDICE, IT SEEMS REASONABLY CLEAR
FROM THE TRIAL RECORD HERE THAT THE JUDGE'S INSISTENCE ON STOPPING THE
TRIAL UNTIL THE WITNESSES WERE PROPERLY WARNED WAS MOTIVATED BY THE
DESIRE TO PROTECT THE WITNESSES RATHER THAN THE DEFENDANT.  BUT THE
GOVERNMENT APPEARS TO VIEW THE QUESTION OF "BENEFIT" AS TURNING ON AN
APPELLATE COURT'S POST HAC ASSESSMENT AS TO WHICH PARTY WOULD IN FACT
HAVE BEEN AIDED IN THE HYPOTHETICAL EVENT THAT THE WITNESSES HAD BEEN
CALLED TO THE STAND AFTER COUNSULTING WITH THEIR OWN ATTORNEYS ON THE
COURSE OF CONDUCT THAT WOULD BEST SERVE TO INSULATE THEM PERSONALLY
FROM CRIMINAL AND CIVIL LIABILITY FOR THE FRAUDULENT TAX RETURNS.  THAT
CONCEPTION OF BENEFIT, HOWEVER, INVOLVES NOTHING MORE THAN AN EXERCISE
IN PURE SPECULATION.  IN SUM, WE ARE UNABLE TO CONCLUDE ON THIS RECORD
THAT THIS IS A CASE OF A MISTRIAL MADE "IN THE SOLE INTEREST OF THE
DEFENDANT."  SEE GORI V. UNITED STATES, SUPRA. 

FURTHER, WE THINK THAT A LIMITATION ON THE ABUSE-OF-DISCRETION
PRINCIPLE BASED ON AN APPELLATE COURT'S ASSESSMENT OF WHICH SIDE
BENEFITED FROM THE MISTRIAL RULING DOES NOT ADEQUATELY SATISFY THE
POLICIES UNDERPINNING THE DOUBLE JEOPARDY PROVISION.  REPROSECUTION
AFTER A MISTRIAL HAS UNNECESSARILY BEEN DECLARED BY THE TRIAL COURT
OBVIOUSLY SUBJECTS THE DEFENDANT TO THE SAME PERSONAL STRAIN AND
INSECURITY REGARDLESS OF THE MOTIVATION UNDERLYING THE TRIAL JUDGE'S
ACTION.  THE GOVERNMENT CONTENDS, HOWEVER, THAT THE POLICIES EVINCED BY
THE DOUBLE JEOPARDY PROVISION DO NOT REACH THIS SORT OF INJURY; RATHER
THE UNNECESSARILY INFLICTED SECOND TRIAL MUST, IN THE GOVERNMENT'S
VIEW, APPEAR TO BE THE RESULT OF A MISTRIAL DECLARATION WHICH "UNFAIRLY
AIDS THE PROSECUTION OR HARASSES THE DEFENSE."  GOVT. BRIEF 8. 

CERTAINLY IT IS CLEAR BEYOND QUESTION THAT THE DOUBLE JEOPARDY
CLAUSE DOES NOT GUARANTEE A DEFENDANT THAT THE GOVERNMENT WILL BE
PREPARED, IN ALL CIRCUMSTANCES, TO VINDICATE THE SOCIAL INTEREST IN LAW
ENFORCEMENT THROUGH THE VEHICLE OF A SINGLE PROCEEDING FOR A GIVEN
OFFENSE.  THUS, FOR EXAMPLE, REPROSECUTION FOR THE SAME OFFENSE IS
PERMITTED WHERE THE DEFENDANT WINS A REVERSAL ON APPEAL OF A
CONVICTION.  UNITED STATES V. BALL, 163 U.S. 662 (1896); SEE GREEN V.
UNITED STATES, 355 U.S. 184, 189 (1957).  THE DETERMINATION TO ALLOW
REPROSECUTION IN THESE CIRCUMSTANCES REFLECTS THE JUDGMENT THAT THE
DEFENDANT'S DOUBLE JEOPARDY INTERESTS, HOWEVER DEFINED, DO NOT GO SO
FAR AS TO COMPEL SOCIETY TO SO MOBILIZE ITS DECISIONMAKING RESOURCES
THAT IT WILL BE PREPARED TO ASSURE THE DEFENDANT A SINGLE PROCEEDING
FREE FROM HARMFUL GOVERNMENTAL OR JUDICIAL ERROR.  BUT IT IS ALSO CLEAR
THAT RECOGNITION THAT THE DEFENDANT CAN BE REPROSECUTED FOR THE SAME
OFFENSE AFTER SUCCESSFUL APPEAL DOES NOT COMPEL THE CONCLUSION THAT
DOUBLE JEOPARDY POLICIES ARE CONFINED TO PREVENTION OF PROSECUTORIAL OR
JUDICIAL OVERREACHING.  FOR THE CRUCIAL DIFFERENCE BETWEEN
REPROSECUTION AFTER APPEAL BY THE DEFENDANT AND REPROSECUTION AFTER A
SUA SPONTE JUDICIAL MISTRIAL DECLARATION IS THAT IN THE FIRST SITUATION
THE DEFENDANT HAS NOT BEEN DEPRIVED OF HIS OPTION TO GO TO THE FIRST
JURY AND, PERHAPS, END THE DISPUTE THEN AND THERE WITH AN ACQUITTAL. 
ON THE OTHER HAND, WHERE THE JUDGE, ACTING WITHOUT THE DEFENDANT'S
CONSENT, ABORTS THE PROCEEDING, THE DEFENDANT HAS BEEN DEPRIVED OF HIS
"VALUED RIGHT TO HAVE HIS TRIAL COMPLETED BY A PARTICULAR TRIBUNAL." 
/11/  SEE WADE V. HUNTER, 336 U.S.,AT 680. 

IF THAT RIGHT TO GO TO A PARTICULAR TRIBUNAL IS VALUED, IT IS
BECAUSE, INDEPENDENT OF THE THREAT OF BAD-FAITH CONDUCT BY JUDGE OR
PROSECUTOR, THE DEFENDANT HAS A SIGNIFICANT INTEREST IN THE DECISION
WHETHER OR NOT TO TAKE THE CASE FROM THE JURY WHEN CIRCUMSTANCES OCCUR
WHICH MIGHT BE THOUGHT TO WARRANT A DECLARATION OF MISTRIAL.  THUS,
WHERE CIRCUMSTANCES DEVELOP NOT ATTRIBUTABLE TO PROSECUTORIAL OR
JUDICIAL OVERREACHING, A MOTION BY THE DEFENDANT FOR MISTRIAL IS
ORDINARILY ASSUMED TO REMOVE ANY BARRIER TO REPROSECUTION, EVEN IF THE
DEFENDANT'S MOTION IS NECESSITATED BY PROSECUTORIAL OR JUDICIAL ERROR. 
/12/  IN THE ABSENCE OF SUCH A MOTION, THE PEREZ DOCTRINE OF MANIFEST
NECESSITY STANDS AS A COMMAND TO TRIAL JUDGES NOT TO FORECLOSE THE
DEFENDANT'S OPTION UNTIL A SCRUPULOUS EXERCISE OF JUDICIAL DISCRETION
LEADS TO THE CONCLUSION THAT THE ENDS OF PUBLIC JUSTICE WOULD NOT BE
SERVED BY A CONTINUATION OF THE PROCEEDINGS.  SEE UNITED STATES V.
PEREZ, 9 WHEAT.,AT 580. 

THE CONSCIOUS REFUSAL OF THIS COURT TO CHANNEL THE EXERCISE OF THAT
DISCRETION ACCORDING TO RULES BASED ON CATEGORIES OF CIRCUMSTANCES, SEE
WADE V. HUNTER, 336 U.S.,AT 691, REFLECTS THE ELUSIVE NATURE OF THE
PROBLEM PRESENTED BY JUDICIAL ACTION FORECLOSING THE DEFENDANT FROM
GOING TO HIS JURY.  BUT THAT DISCRETION MUST STILL BE EXERCISED;
UNQUESTIONABLY AN IMPORTANT FACTOR TO BE CONSIDREED IS THE NEED TO HOLD
LITIGANTS ON BOTH SIDES TO STANDARDS OF RESPONSIBLE PROFESSIONAL
CONDUCT IN THE CLASH OF AN ADVERSARY CRIMINAL PROCESS.  YET WE CANNOT
EVOLVE RULES BASED ON THE SOURCE OF THE PARTICULAR PROBLEM GIVING RISE
TO A QUESTION WHETHER A MISTRIAL SHOULD OR SHOULD NOT BE DECLARED,
BECAUSE, EVEN IN CIRCUMSTANCES WHERE THE PROBLEM REFLECTS ERROR ON THE
PART OF ONE COUNSEL OR THE OTHER, THE TRIAL JUDGE MUST STILL TAKE CARE
TO ASSURE HIMSELF THAT THE SITUATION WARRANTS ACTION ON HIS PART
FORECLOSING THE DEFENDANT FROM A POTENTIALLY FAVORABLE JUDGMENT BY THE
TRIBUNAL. 

IN SUM, COUNSEL FOR BOTH SIDES PERFORM IN AN IMPERFECT WORLD; IN
THIS AREA, BRIGHT-LINE RULES BASED ON EITHER THE SOURCE OF THE PROBLEM
OR THE INTENDED BENEFICIARY OF THE RULING WOULD ONLY DISSERVE THE VITAL
COMPETING INTERESTS OF THE GOVERNMENT AND THE DEFENDANT.  THE TRIAL
JUDGE MUST RECOGNIZE THAT LACK OF PREPAREDNESS BY THE GOVERNMENT TO
CONTINUE THE TRIAL DIRECTLY IMPLICATES POLICIES UNDERPINNING BOTH THE
DOUBLE JEOPARDY PROVISION AND THE SPEEDY TRIAL GUARANTEE.  CF. DOWNUM
V. UNITED STATES, 372 U.S. 734 (1963).  ALTERNATIVELY, THE JUDGE MUST
BEAR IN MIND THE POTENTIAL RISKS OF ABUSE BY THE DEFENDANT OF SOCIETY'S
UNWILLINGNESS TO UNNECESSARILY SUBJECT HIM TO REPEATED PROSECUTIONS. 
YET, IN THE FINAL ANALYSIS, THE JUDGE MUST ALWAYS TEMPER THE DECISION
WHETHER OR NOT TO ABORT THE TRIAL BY CONSIDERING THE IMPORTANCE TO THE
DEFENDANT OF BEING ABLE, ONCE AND FOR ALL, TO CONCLUDE HIS
CONFRONTATION WITH SOCIETY THROUGH THE VERDICT OF A TRIBUNAL HE MIGHT
BELIEVE TO BE FAVORABLY DISPOSED TO HIS FATE. 

        III 

APPLYING THESE CONSIDERATIONS TO THE RECORD IN THIS CASE, WE MUST
CONCLUDE THAT THE TRIAL JUDGE HERE ABUSED HIS DISCRETION IN DISCHARGING
THE JURY.  DESPITE ASSURANCES BY BOTH THE FIRST WITNESS AND THE
PROSECUTING ATTORNEY THAT THE FIVE TAXPAYERS INVOLVED IN THE LITIGATION
HAD ALL BEEN WARNED OF THEIR CONSTITUTIONAL RIGHTS, THE JUDGE REFUSED
TO PERMIT THEM TO TESTIFY, FIRST EXPRESSING HIS DISBELIEF THAT THEY
WERE WARNED AT ALL, AND THEN EXPRESSING HIS VIEWS THAT ANY WARNINGS
THAT MIGHT HAVE BEEN GIVEN WOULD BE INADEQUATE.  APP. 41-42.  IN
PROBING THE ASSUMED INADEQUACY OF THE WARNINGS THAT MIGHT HAVE BEEN
GIVEN, THE PROSECUTOR WAS ASKED IF HE REALLY INTENDED TO TRY A CASE FOR
WILLFULLY AIDING IN THE PREPARATION OF FRAUDULENT RETURNS ON A THEORY
THAT WOULD NOT INCREMINATE THE TAXPAYERS.  WHEN THE PROSECUTOR STARTED
TO ANSWER THAT HE INTENDED TO DO JUST THAT, THE JUDGE CUT HIM OFF IN
MIDSTREAM AND IMMEDIATELY DISCHARGED THE JURY.  APP. 42-43.  IT IS
APPARENT FROM THE RECORD THAT NO CONSIDERATION WAS GIVEN TO THE
POSSIBILITY OF A TRIAL CONTINUANCE; INDEED, THE TRIAL JUDGE ACTED SO
ABRUPTLY IN DISCHARGING THE JURY THAT, HAD THE PROSECUTOR BEEN DISPOSED
TO SUGGEST A CONTINUANCE, OR THE DEFENDANT TO OBJECT TO THE DISCHARGE
OF THE JURY, THERE WOULD HAVE BEEN NO OPPORTUNITY TO DO SO.  WHEN ONE
EXAMINES THE CIRCUMSTANCES SURROUNDING THE DISCHARGE OF THIS JURY, IT
SEEMS ABUNDANTLY APPARENT THAT THE TRIAL JUDGE MADE NO EFFORT TO
EXERCISE A SOUND DISCRETION TO ASSURE THAT, TAKING ALL THE
CIRCUMSTANCES INTO ACCOUNT, THERE WAS A MANIFEST NECESSITY FOR THE SUA
SPONTE DECLARATION OF THIS MISTRIAL.  UNITED STATES V. PEREZ, 9
WHEAT.,AT 580.  THEREFORE, WE MUST CONCLUDE THAT IN THE CIRCUMSTANCES
OF THIS CASE, APPELLEE'S REPROSECUTION WOULD VIOLATE THE DOUBLE
JEOPARDY PROVISION OF THE FIFTH AMENDMENT. 

AFFIRMED. 

/1/  THESE PROVISIONS OF THE CRIMINAL APPEALS ACT HAVE RECENTLY BEEN
AMENDED.  SEE N. 6, INFRA.  HOWEVER, THE NEW AMENDMENT DOES NOT APPLY
TO CASES BEGUN IN THE DISTRICT COURT BEFORE THE EFFECTIVE DATE OF
ENACTMENT.  IBID.  OUR JURISDICTION OVER THE PRESENT APPEAL IS
THEREFORE CONTROLLED BY THE TERMS OF THE CRIMINAL APPEALS ACT AS
CODIFIED AT 18 U.S.C. 3731. 

/2/  THE COMMON-LAW EQUIVALENT OF THE MOTION IN BAR WAS USED TO
RAISE THE DEFENSES OF PRIOR ACQUITTAL, PRIOR CONVICTION, AND PARDON. 
SEE UNITED STATES V. MURDOCK, 284 U.S. 141, 151 (1931).  WHETHER THE
MOTION-IN-BAR PROVISION IS CONSTRUED BROADLY TO REACH ANY PLEA HAVING
THE EFFECT OF PREVENTING FURTHER PROSECUTIONS, SEE UNITED STATES V.
MERSKY, 361 U.S. 431, 441-443 (1960) (BRENNAN, J., CONCURRING), OR
NARROWLY TO REACH ONLY PLEAS IN THE NATURE OF CONFESSION AND AVOIDANCE,
SEE ID., AT 455-458 (STEWART, J., DISSENTING), APPELLEE'S PLEA OF
FORMER JEOPARDY BASED ON THE PRIOR DECLARATION OF MISTRIAL WOULD BE
INCLUDED.  CF. UNITED STATES V. BLUE, 384 U.S. 251, 254 (1966).  SEE
GENERALLY UNITED STATES V. SISSON, 399 U.S. 267, 300 N. 53 (1970). 

/3/  THE PORTION OF THE COURT'S OPINION IN SISSON UNDER DISCUSSION
HERE WAS JOINED IN BY ONLY FOUR MEMBERS OF THE COURT. 

/4/  MR. JUSTICE WHITE'S DISSENTING OPINION CONTENDED THAT THE
JEOPARDY LANGUAGE APPLIES TO PRECLUDE GOVERNMENTAL APPEAL ONLY WHERE
THE DEFENDANT'S REPROSECUTION WOULD BE BARRED BY THE CONSTITUTION. 

/5/  THE GOVERNMENT RELIES IN PART ON UNITED STATES V. TATEO, 377
U.S. 463 (1964), AND UNITED STATES V. OPPENHEIMER, 242 U.S. 85 (1916),
AS SUSTAINING JURISDICTION UNDER 18 U.S.C. 3731 TO REVIEW THE TRIAL
COURT'S ACTION IN GRANTING A PRETRIAL MOTION TO DISMISS ON DOUBLE
JEOPARDY GROUNDS AFTER THE PRIOR PROCEEDING ENDED IN A MISTRIAL.  IN
TATEO, HOWEVER, JURISDICTION WAS NEITHER RAISED BY THE PARTIES NOR
CONSIDERED BY THE COURT; THEREFORE, IT IS OF LITTLE SIGNIFICANCE ON THE
JURISDICTION POINT.  IN OPPENHEIMER, THE MOTION IN BAR IN THE SECOND
PROCEEDING RESTED ON AN EARLIER PRETRIAL MOTION BASED ON THE STATUTE OF
LIMITATIONS; THE THEORY OF THE SECOND PLEA WAS RES JUDICATA. 

/6/  APPELLEE POINTS OUT THAT RULE 12(B)(1) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE PERMITS THE DEFENDANT TO RAISE THE DEFENSE OF FORMER
JEOPARDY ON MOTION BEFORE OR AFTER THE IMPANELING OF THE JURY.  SEE
NOTES OF THE ADVISORY COMMITTEE, 8 J. MOORE, FEDERAL PRACTICE PARA.
12.01(2) (2D ED. 1970).  THUS, IT IS SUGGESTED THAT THE DEFENDANT MAY
DEPRIVE THE GOVERNMENT OF ITS APPEAL SIMPLY BY DELAYING HIS MOTION TO
DISMISS UNTIL THE JURY HAS BEEN IMPANELED.  THIS PROBLEM, OF COURSE, IN
INHERENT IN THE STRUCTURE OF THE CRIMINAL APPEALS ACT PRIOR TO
AMENDMENT; FOR EXAMPLE, THE DEFENDANT UNDER RULE 12(B)(1) MAY ALSO
DELAY HIS STATUTE OF LIMITATIONS PLEA UNTIL AFTER THE IMPANELING OF THE
JURY, SEE IBID, THEREBY DEPRIVING THE GOVERNMENT OF ITS SEC. 3731
APPEAL TO THIS COURT.  SOON AFTER THE PASSAGE OF THE ORIGINAL ACT, THE
ATTORNEY GENERAL RECOGNIZED THE PROBLEM AND PROPOSED THAT THE ACT BE
AMENDED TO REQUIRE COUNSEL FOR THE DEFENDANT TO RAISE AND ARGUE SUCH
QUESTIONS BEFORE JEOPARDY ATTACHES.  SEE SISSON, SUPRA, AT 305-306.  A
RECENTLY ENACTED AMENDMENT TO THE CRIMINAL APPEALS ACT UNDERTAKES TO
DEAL WITH THE PROBLEM BY ALLOWING THE GOVERNMENT TO APPEAL "TO A COURT
OF APPEALS FROM A DECISION, JUDGMENT, OR ORDER OF A DISTRICT COURT
DISMISSING AN INDICTMENT OR INFORMATION AS TO ANY ONE OR MORE COUNTS,
EXCEPT THAT NO APPEAL SHALL LIE WHERE THE DOUBLE JEOPARDY CLAUSE OF THE
UNITED STATES CONSTITUTION PROHIBITS FURTHER PROSECUTION."  OMNIBUS
CRIME CONTROL ACT OF 1970, SEC. 14(A)(1), 84 STAT. 1890 (JANUARY 2,
1971).  HOWEVER, THE AMENDMENT IS NOT APPLICABLE TO ANY CRIMINAL CASE
BEGUN IN ANY DISTRICT COURT BEFORE THE EFFECTIVE DATE OF THE
AMENDMENT.  ID., SEC. 14(B).  SEE ALSO S. REP. NO. 91-1296, PP. 6-7. 

/7/  IT IS CLEAR FROM THE RECORD IN THIS CASE THAT JUDGE RITTER'S
ACTION CANNOT, AS TWO MEMBERS OF THE COURT SUGGEST, BE CLASSIFIED AS AN
"ACQUITTAL" FORPURPOSES OF THIS COURT'S JURISDICTION OVER THE APPEAL
UNDER 18 U.S.C. 3731.  FIRST, JUDGE RITTER'S ACTION AT THE ORIGINAL
TRIAL CLEARLY CONTEMPLATED REPROSECUTION OF THE DEFENDANT AFTER THE
WITNESSES HAD CONSULTED WITH ATTORNEYS.  SEE APP. 46 AND MR. JUSTICE
STEWART'S DISSENT, POST, AT 488-489, N. 1.  JUDGE RITTER'S SUBSEQUENT
ACTION DISMISSING THE INFORMATION WAS SIMPLY PUT ON THE GROUND OF
DEFENDANT'S PLEA OF FORMER JEOPARDY, WITHOUT FURTHER EXPLANATION.  APP.
60.  BUT THE PARTIES BELOW PUT THE QUESTION OF FORMER JEOPARDY TO JUDGE
RITTER EXCLUSIVELY IN TERMS OF THE COURT'S LINE OF CASES CONCERNING
RESPROSECUTABILITY AFTER MISTRIAL DECLARATIONS WITHOUT THE DEFENDANT'S
CONSENT.  SEE APP. 55-59, WHICH CONTAIN THE ENTIRE POST-MISTRIAL
PROCEEDINGS BEFORE JUDGE RITTER. 

OF COURSE, AS WE NOTED IN SISSON, SUPRA, AT 290, THE TRIAL JUDGE'S
CHARACTERIZATION OF HIS OWN ACTION CANNOT CONTROL THE CLASSIFICATION OF
THE ACTION FOR PURPOSES OF OUR APPELLATE JURISDICTION.  BUT SISSON GOES
ON TO ARTICULATE THE CRITERION OF AN "ACQUITTAL" FOR PURPOSES OF
ASSESSING OUR JURISDICTION TO REVIEW: THE TRIAL JUDGE'S DISPOSITION IS
AN "ACQUITTAL" IF IT IS "A LEGAL DETERMINATION ON THE BASIS OF FACTS
ADDUCED AT THE TRIAL RELATING TO THE GENERAL ISSUE OF THE CASE.  . . .
"  SISSON, SUPRA, AT 290 N. 19.  THE RECORD IN THIS CASE IS UTTERLY
DEVOID OF ANY INDICATION OF RELIANCE BY JUDGE RITTER ON FACTS RELATING
TO THE GENERAL ISSUE OF THE CASE, THEREBY SURELY DISTINGUISHING THIS
CASE FROM SISSON, AND, ONE WOULD THINK, UNDER THE VERY REASONING OF
SISSON, COMPELLING THE CONCLUSION THAT WHATEVER ELSE JUDGE RITTER MAY
HAVE DONE, HE DID NOT "ACQUIT" THE DEFENDANT IN THE RELEVANT SENSE. 

/8/  TWO TERMS AGO THE DOUBLE JEOPARDY PROVISION OF THE FIFTH
AMENDMENT WAS MADE DIRECTLY APPLICABLE TO THE STATES.  SEE BRENTON V.
MARYLAND, 395 U.S. 784 (1969). 

/9/  SEE ALSO ANNOTATION:  DOUBLE JEOPARDY-- MISTRIAL, 6 L.ED. 2D
1509; J. SIGLER, DOUBLE JEOPARDY 39-47 (1969). 

/10/  AND SEE ANNOTATION, SUPRA, N. 9, AT 1511; SIGLER, SUPRA, N. 9,
AT 44-45. 

/11/  WE THINK THAT NOTHING SAID IN UNITED STATES V. TATEO, 377 U.S.
463, 467 (1964), CAN PROPERLY BE TAKEN AS INDICATING A CONTRARY VIEW. 
FOR THERE, EVEN THOUGH DEFENDANT'S GUILTY PLEA WHICH ABORTED THE TRIAL
WAS SUBSEQUENTLY HELD TO HAVE BEEN COERCED BY JUDICIAL ACTION, THE
DEFENDANT NONETHELESS WAS NOT FORECLOSED OF HIS OPTION TO GO TO THE
JURY IF HE CHOSE TO DO SO, AND THEREAFTER RELY ON POST-CONVICTION
PROCEEDINGS TO REDRESS THE WRONG DONE TO HIM BY THE JUDGE.  IN OTHER
WORDS, THE QUESTION OF "VOLUNTARINESS" FOR PURPOSES OF ASSESSING THE
VALIDITY OF A PLEA OF GUILTY-- WHETHER OFFERED BEFORE OR AT TRIAL--
MUST BE DISTINGUISHED FROM THE QUESTION OF "VOLUNTARINESS" FOR PURPOSES
OF ASSESSING REPROSECUTABILITY UNDER THE DOUBLE JEOPARDY CLAUSE. 

/12/  CONVERSELY, WHERE A DEFENDANT'S MISTRIAL MOTION IS
NECESSITATED BY JUDICIAL OR PROSECUTORIAL IMPROPRIETY DESIGNED TO AVOID
AN ACQUITAL, REPROSECUTION MIGHT WELL BE BARRED.  CF. UNITED STATES V.
TATEO, SUPRA, AT 468 N. 3; N. 11, SUPRA. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN IN THE PLURALITY OPINION AND IN THE JUDGMENT OF THE COURT NOT
WITHOUT SOME RELUCTANCE, HOWEVER, SINCE THE CASE REPRESENTS A PLAIN
FRUSTRATION OF THE RIGHT TO HAVE THIS CASE TRIED, ATTRIBUTABLE SOLELY
TO THE CONDUCT OF THE TRIAL JUDGE.  IF THE ACCUSED HAD BROUGHT ABOUT
THE ERRONEOUS MISTRIAL RULING WE WOULD HAVE A DIFFERENT CASE, BUT THIS
RECORD SHOWS NOTHING TO TAKE APPELLEE'S CLAIMS OUTSIDE THE CLASSIC MOLD
OF BEING TWICE PLACED IN JEOPARDY FOR THE SAME OFFENSE. 

MR. JUSTICE BLACK AND MR. JUSTICE BRENNAN BELIEVE THAT THE COURT
LACKS JURISDICTION OVER THIS APPEAL UNDER 18 U.S.C. 3731 BECAUSE THE
ACTION OF THE TRIAL JUDGE AMOUNTED TO AN ACQUITTAL OF APPELLEE AND
THEREFORE THERE WAS NO DISCRETION LEFT TO THE TRIAL JUDGE TO PUT
APPELLEE AGAIN IN JEOPARDY.  HOWEVER, IN VIEW OF A DECISION BY A
MAJORITY OF THE COURT TO REACH THE MERITS, THEY JOIN THE JUDGMENT OF
THE COURT. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE WHITE AND MR. JUSTICE
BLACKMUN JOIN, DISSENTING. 

THE PLURALITY OPINION TODAY SAYS THAT WHEVENER A TRIAL JUDGE IN A
CRIMINAL CASE HAS "ABUSED HIS DISCRETION" IN DECLARING A MISTRIAL ON
HIS OWN MOTION, THE CONSTITUTIONAL GUARANTEE AGAINST DOUBLE JEOPARDY
CATEGORICALLY OPERATES TO FORESTALL A TRIAL OF THE CASE ON THE MERITS. 
I CANNOT AGREE. 

THE DISTRICT JUDGE'S DECISION TO DECLARE A MISTRIAL IN THIS CASE WAS
BASED ON HIS BELIEF THAT THE PROSECUTION WITNESSES, WHO WERE TO TESTIFY
THAT THEY HAD SUBMITTED FALSE INCOME TAX RETURNS PREPARED BY THE
DEFENDANT, HAD NOT BEEN ADEQUATELY WARNED THAT THEY MIGHT THEMSELVES
INCUR CRIMINAL LIABILITY BY THEIR TESTIMONY.  THE JUDGE APPARENTLY
INTENDED SIMPLY TO POSTPONE THE CASE SO THAT THE WITNESSES COULD BE
FULLY APPRISED OF THEIR CONSTITUTIONAL RIGHTS, /1/  AND A SECOND TRIAL
WAS SCHEDULED BEFORE A NEW JURY.  HOWEVER, BEFORE THE NEW TRIAL DATE
DEFENDANT FILED A MOTION TO DISMISS THE INFORMATION ON THE GROUND OF
FORMER JEOPARDY, AND THE JUDGE GRANTED THE MOTION.  THE GOVERNMENT
APPEALED DIRECTLY TO THIS COURT.  /2/ 

IT IS, OF COURSE, COMMON GROUND THAT THERE ARE MANY CIRCUMSTANCES
UNDER WHICH A TRIAL JUDGE MAY DISCHARGE A JURY AND ORDER A NEW TRIAL,
WITHOUT ENCOUNTERING ANY DOUBLE JEOPARDY PROBLEMS.  ONE EXAMPLE IS
WHERE THE JUDGE ACTS AT THE INSTANCE OF THE DEFENDANT HIMSELF.  SEE
UNITED STATES V. TATEO, 377 U.S. 463, 467.  ANOTHER IS WHERE THE JURY
CANNOT REACH A VERDICT, AND THERE THE TRIAL JUDGE MAY PROCEED ON HIS
OWN INITIATIVE, EVEN OVER THE ACTIVE OBJECTION OF THE DEFENDANT, TO
DECLARE A MISTRIAL.  UNITED STATES V. PEREZ, 9 WHEAT.  579.  CF.
SIMMONS V. UNITED STATES, 142 U.S. 148; WADE V. HUNTER, 336 U.S. 684. 
ON THE OTHER HAND, THERE ARE SITUATIONS WHERE THE CIRCUMSTANCES UNDER
WHICH THE MISTRIAL WAS DECLARED MAY BE SUCH AS TO BAR A FUTURE
PROSECUTION.  ONE EXAMPLE IS WHERE A "JUDGE EXERCISES HIS AUTHORITY TO
HELP THE PROSECUTION, AT A TRIAL IN WHICH ITS CASE IS GOING BADLY, BY
AFFORDING IT ANOTHER, MORE FAVORABLE OPPORTUNITY TO CONVICT THE
ACCUSED."  GORI V. UNITED STATES, 367 U.S. 364,369.  I SHOULD SUPPOSE
THAT WHETHER MISCONDUCT OF THIS KIND OCCURS AT THE INSTANCE OF THE
PROSECUTOR OF ON THE TRIAL JUDGE'S SOLE INITIATIVE, THERE IS NO
QUESTION BUT THAT THE GUARANTEE AGAINST DOUBLE JEOPARDY WOULD MAKE
ANOTHER TRIAL IMPERMISSIBLE. 

THE PRESENT CASE DOES NOT FALL NEATLY INTO ANY OF THESE CONVENTIONAL
CATEGORIES.  THERE WAS NO REQUEST FOR A MISTRIAL FROM DEFENSE COUNSEL
(ALTHOUGH HIS SUGGESTION THAT THE WITNESSES BE WARNED OF THEIR
CONSTITUTIONAL RIGHTS MAY HAVE TRIGGERED THE COURSE OF EVENTS THAT
FOLLOWED), AND THE CASE CERTAINLY CANNOT BE ANALOGIZED TO THAT OF A
HUNG JURY.  CONVERSELY, THE MISTRIAL WAS NOT REQUESTED BY THE
PROSECUTOR, AND THERE IS NOT THE SLIGHTEST INDICATION THAT HE DESIRED
IT TO OCCUR.  NOR IS THERE ANY SUGGESTION THAT THIS WAS A SITUATION
INVOLVING "HARASSMENT,"  OR AN ATTEMPT BY JUDGE OR PROSECUTOR TO
ENHANCE THE POSSIBILITY OF CONVICTION IN A SECOND TRIAL. 

THE PLURALITY OPINION PURPORTS TO RESOLVE THE MATTER BY ADOPTING A
RULE OF "ABUSE OF DISCRETION" BY THE TRIAL JUDGE.  THIS STANDARD IS
SAID TO DERIVE FROM . THE STATEMENT OF THE COURT IN THE LEADING CASE OF
UNITED STATES V. PEREZ, SUPRA, AT 580. 

"WE THINK, THAT IN ALL CASES OF THIS NATURE, THE LAW HAS INVESTED
COURTS OF JUSTICE 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.  THEY ARE TO
EXERCISE A SOUND DISCRETION ON THE SUBJECT; AND IT IS IMPOSSIBLE TO
DEFINE ALL THE CIRCUMSTANCES, WHICH WOULD RENDER IT PROPER TO
INTERFERE.  TO BE SURE, THE POWER OUGHT TO BE USED WITH THE GREATEST
CAUTION, UNDER URGENT CIRCUMSTANCES, AND FOR VERY PLAN AND OBVIOUS
CAUSES.  . . . BUT, AFTER ALL, THEY HAVE THE RIGHT TO ORDER THE
DISCHARGE; AND THE SECURITY WHICH THE PUBLIC HAVE FOR THE FAITHFUL,
SOUND, AND CONSCIENTIOUS EXERCISE OF THIS DISCRETION, RESTS, IN THIS,
AS IN OTHER CASES, UPON THE RESPONSIBILITY OF THE JUDGES, UNDER THEIR
OATHS OF OFFICE." 

THE PLURALITY OPINION APPEARS TO CONSTRUE THIS PASSAGE TO MEAN THAT
AN APPELLATE COURT, IN DETERMINING THE APPLICABILITY OF THE DOUBLE
JEOPARDY GUARANTEE, MUST MEASURE THE TRIAL JUDGE'S ACTION IN DECLARING
THE MISTRIAL AGAINST A STANDARD OF GOOD TRIAL PRACTICE.  IF THE TRIAL
JUDGE HAS CONSPICUOUSLY FAILED TO MEET SUCH A STANDARD, THEN,
REGARDLESS OF THE NATURE OR THE CONSEQUENCES OF THE ERROR, THE
CONSTITUTION BARS ANOTHER TRIAL.  IN MY VIEW, THIS REASONING IS BOTH
OVERBROAD AND FLATLY INCONSISTENT WITH THIS COURT'S DECISION IN GORI V.
UNITED STATES, SUPRA. 

IN THAT CASE, THE TRIAL JUDGE HAD DISCHARGED THE JURY DURING THE
FIRST DAY OF TRIAL, TAKING SUCH ACTION APPARENTLY TO FORESTALL
PREJUDICIAL ERROR AFTER INFERRING THAT THE PROSECUTING ATTORNEY'S LINE
OF QUESTIONING PRESAGED INQUIRY CALCULATED TO INFORM THE JURY OF OTHER
CRIMES BY THE ACCUSED.  THE COURT OF APPEALS HELDTHAT THE DECLARATION
OF A MISTRIAL UNDER THESE CIRCUMSTANCES DID NOT PREVENT A NEW TRIAL ON
THE MERITS. 

"HERE THE DEFENDANT WAS IN NO WAY HARMED BY THE BRIEF TRIAL WHICH,
INDEED, REVEALED TO HIM THE PROSECUTION'S ENTIRE CASE.  HE WAS THUS IN
A POSITION TO START ANEW WITH A CLEAN SLATE, WITH ALL POSSIBILITY OF
PREJUDICE ELIMINATED AND WITH FOREKNOWLEDGE OF THE CASE AGAINST HIM. 
THE SITUATION WAS QUITE UNLIKE THE MORE TROUBLESOME PROBLEMS FOUND IN
VARIOUS OF THE CASES, AS WHERE THE PROSECUTION DESIRES TO STRENGTHEN
HIS CASE ON A NEW START OR OTHERWISE PROVOKES THE DECLARATION OF
MISTRIAL, OR THE COURT HAS ACTED TO THE PREJUDICE OF THE ACCUSED, OR
THE ACCUSED HAS ACTUALLY BEEN SUBJECT TO TWO TRIALS FOR ESSENTIALLY THE
SAME OFFENSE.  ON THE OTHER HAND, FOR THE DEFENDANT TO RECEIVE
ABSOLUTION FOR HIS CRIME, LATER PROVEN QUITE COMPLETELY, BECAUSE THE
JUDGE ACTED TOO HASTILY IN HIS INTEREST, WOULD BE AN INJUSTICE TO THE
PUBLIC IN THE PARTICULAR CASE AND A DISASTROUS PRECEDENT FOR THE
FUTURE."  282 F.2D 43, 48 (CA2 1960).  THIS COURT DECLINED TO PASS ON
THE COURT OF APPEALS' JUDGMENT THAT THERE HAD BEEN NO ABUSE OF
DISCRETION, NOTED THAT THE CASE INVOLVED NEITHER HARASSMENT NOR AN
ATTEMPT TO AUGMENT THE CHANCES OF CONVICTION, AND CONCLUDED: 

"SUFFICE THAT WE ARE UNWILLING, WHERE IT CLEARLY APPEARS THAT A
MISTRIAL HAS BEEN GRANTED IN THE SOLE INTEREST OF THE DEFENDANT, TO
HOLD THAT ITS NECESSARY CONSEQUENCE IS TO BAR ALL RETRIAL.  IT WOULD
HARK BACK TO THE FORMALISTIC ARTIFICIALITIES OF SEVENTEENTH CENTURY
CRIMINAL PROCEDURE SO TO CONFINE OUR FEDERAL TRIAL COURTS BY COMPELLING
THEM TO NAVIGATE A NARROW COMPASS BETWEEN SCYLLA AND CHARYBDIS.  WE
WOULD NOT THUS MAKE THEM UNDULLY HESITANT CONSCIENTIOUSLY TO EXERCISE
THEIR MOST SENSITIVE JUDGMENT-- ACCORDING TO THEIR OWN LIGHTS IN THE
IMMEDIATE EXIGENCIES OF TRIAL-- FOR THE MORE EFFECTIVE PROTECTION OF
THE CRIMINAL ACCUSED."  367 U.S.,AT 369-370. 

GORI ESTABLISHED, I THINK CORRECTLY, THAT THE SIMPLE PHRASE "ABUSE
OF DISCERETION" IS NOT ENOUGH IN ITSELF TO RESOLVE DOUBLE JEOPARDY
QUESTIONS IN CASES OF THIS KIND.  WHETHER OR NOT THERE HAS BEEN AN
"ABUSE OF DISCRETION" SUFFICIENT TO BAR RETRIAL CANNOT BE DETERMINED
WITHOUT REFERENCE TO THE PURPOSE AND EFFECT OF THE MISTRIAL RULING. 
THE REAL QUESTION IS WHETHER THERE HAS BEEN AN "ABUSE" OF THE TRIAL
PROCESS RESULTING IN PREJUDICE TO THE ACCUSED, BY WAY OF HARASSMENT OR
THE LIKE, SUCH AS TO OUTWEIGH SOCIETY'S INTEREST IN THE PUNISHMENT OF
CRIME.  IT IS IN THIS CONTEXT, RATHER THAN SIMPLY IN TERMS OF GOOD
TRIAL PRACTICE, THAT THE TRIAL JUDGE'S "ABUSE OF DISCRETION" MUST BE
ASSESSED IN DECIDING THE QUESTION OF DOUBLE JEOPARDY.  /3/ 

APPLYING THESE CONSIDERATIONS TO THE RECORD IN THIS CASE, IT SEEMS
CLEAR TO ME THAT A TRIAL ON THE MERITS WOULD NOT VIOLATE THE
CONSTITUTIONAL GUARANTEE.  IT IS QUITE TRUE, AS THE PLURALITY OPINION
INSISTS, THAT THE MISTRIAL WAS DECLARED FOR THE BENEFIT OF THE
WITNESSES RATHER THAN IN THE "SOLE INTEREST OF THE DEFENDANT."  BUT
EXCEPT FOR THE INCONVENIENCE OF DELAY ALWAYS CAUSED BY A MISTRIAL, THE
JUDGE'S RULING COULD NOT POSSIBLY HAVE INJURED THE DEFENDANT.  HAD THE
WITNESSES HEEDED THE TRIAL JUDGE'S ADVICE, IT IS AT LEAST POSSIBLE THAT
THE DEFENDANT'S POSITION MIGHT HAVE BEEN VERY SUBSTANTIALLY IMPROVED BY
THEIR REFUSAL TO TESTIFY UPON THE GROUNDS OF THE GUARANTEE AGAINST
COMPULSORY SELF-INCRIMINATION.  THE LINE OF QUESTIONING THAT RESULTED
IN THE MISTRIAL MAY HAVE BEEN INITIATED BY DEFENSE COUNSEL WITH JUST
SUCH A RESULT IN MIND.  THERE IS, OF COURSE, NO SHOWING OF AN INTENT ON
THE PART OF EITHER THE PROSECUTOR OR THE JUDGE TO HARASS THE DEFENDANT
OR TO ENHANCE THE CHANCES OF CONVICTION IN A SECOND TRIAL.  AND AS IN
GORI, THE DEFENSE WAS GIVEN A COMPLETE PREVIEW OF THE GOVERNMENT'S
CASE.  EVEN ASSUMING THAT THE TRIAL JUDGE'S ACTION WAS PLAINLY IMPROPER
BY ANY STANDARD OF GOOD TRIAL PRACTICE, THE CIRCUMSTANCES UNDER WHICH
THE MISTRIAL WAS DECLARED DID NOT INVOLVE "ABUSE" OF A KIND TO INVOKE
THE CONSTITUTIONAL GUARANTEE AGAINST DOUBLE JEOPARDY.     I
RESPECTFULLY DISSENT FROM THE JUDGMENT OF THE COURT. 

/1/  THE TRIAL JUDGE STATED: 

"SO THIS CASE IS VACATED, SETTING IS VACATED THIS AFTERNOON, AND IT
WILL BE CALENDARED AGAIN; AND, BEFORE IT IS CALENDARED AGAIN, I AM
GOING TO HAVE THESE WITNESSES IN AND TALK TO THEM AGAIN BEFORE I WILL
PERMIT THEM TO TESTIFY."  APP. 46. 

/2/  I AGREE THAT THE COURT HAS JURISDICTION OF THIS APPEAL, FOR THE
REASONS SET OUT IN PART I OF THE PLURALITY OPINION. 

/3/  DOWNUM V. UNITED STATES, 372 U.S. 734, IS NOT TO THE CONTRARY. 
AS THE PLURALITY OPINION TODAY POINTS OUT, THAT CASE RECOGNIZED THAT
"LACK OF PREPAREDNESS BY THE GOVERNMENT TO CONTINUE THE TRIAL DIRECTLY
IMPLICATES POLICIES UNDERPINNING BOTH THE DOUBLE JEOPARDY PROVISION AND
THE SPEEDY TRIAL GUARANTEE," ANTE, AT 486.  FAILURE OF THE PROSECUTION
TO GO FORWARD WITH ITS CASE IN AN EXPEDITIOUS AND ORDERLY MANNER IS
QUITE DIFFERENT FROM EVEN A SERIOUS ERROR IN TRIAL PROCEDURE BY THE
PRESIDING JUDGE.  IT IS, OF COURSE, WELL SETTLED THAT WHEN A JURY
VERDICT IS REVERSED ON APPEAL BECAUSE OF AN ERROR BY THE TRIAL JUDGE, A
NEW TRIAL IS PERMITTED, E.G., FORMAN V. UNITED STATES, 361 U.S. 416;
BRYAN V. UNITED STATES, 338 U.S. 552.  AND IN UNITED STATES V. TATEO,
377 U.S. 463, THE COURT HELD RETRIAL NOT BARRED BY THE DOUBLE JEOPARDY
CLAUSE WHERE THE FIRST TRIAL WAS TERMINATED ON A PLEA OF GUILTY COERCED
BY CLEARLY IMPROPER STATEMENTS BY THE TRIAL JUDGE DURING THE
PROCEEDINGS. 

RICHARD B. STONE ARGUED THE CAUSE FOR THE UNITED STATES ON THE
REARGUMENT.  LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES
ON THE ORIGINAL ARGUMENT.  WITH MR. STONE ON THE BRIEF ON THE
REARGUMENT WERE SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY
GENERAL WALTERS.  ON THE BRIEF ON THE ORIGINAL ARGUMENT WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WALTERS, PETER L. STRAUSS,
AND JOSEPH M. HOWARD. 

DENIS R. MORILL, BY APPOINTMENT OF THE COURT, 396 U.S. 899, REARGUED
THE CAUSE AND FILED BRIEFS FOR APPELLEE. 
..END :














USNER V. LUCKENBACH OVERSEAS CORP., 400 U.S. 494 


       USNER V. LUCKENBACH OVERSEAS CORP. ET AL.

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 47.  ARGUED NOVEMBER 18, 1970-- DECIDED JANUARY 25,

           1971 


ISOLATED, PERSONAL ACT OF NEGLIGENCE BY A FELLOW LONGSHOREMAN
RESULTING IN INJURY TO PETITIONER DID NOT MAKE SHIPOWNER LIABLE ON
GROUND OF UNSEAWORTHINESS OF VESSEL, AS INJURY WAS NOT CAUSED BY SHIP'S
CONDITION, APPURTENANCES, CARGO, OR CREW.  THERE IS A "COMPLETE
DIVORCEMENT OF UNSEAWORTHINESS LIABILITY FROM CONCEPTS OF NEGLIGENCE." 
MITCHELL V. TRAWLER RACER, 362 U.S. 539, 550.  PP. 496-500. 

413 F.2D 984, AFFIRMED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT IN WHICH BURGER,
C.J., AND WHITE, MARSHALL, AND BLACKMUN, JJ., JOINED.  DOUGLAS, J.,
FILED A DISSENTING OPINION IN WHICH BLACK AND BRENNAN, JJ., JOINED,
POST, P. 501.  HARLAN, J., FILED A DISSENTING OPINION, POST, P. 503. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, A LONGSHOREMAN EMPLOYED BY AN INDEPENDENT STEVEDORING
CONTRACTOR, WAS INJURED WHILE ENGAGED WITH HIS FELLOW EMPLOYEES IN
LOADING CARGO ABOARD THE S.S. EGAR F. LUCKENBACH.  HE BROUGHT THIS
ACTION FOR DAMAGES AGAINST THE RESPONDENTS, THE OWNER AND THE CHARTERER
OF THE SHIP, IN A FEDERAL DISTRICT COURT, ALLEGING THAT HIS INJURIES
HAD BEEN CAUSED BY THE SHIP'S UNSEAWORTHINESS. 

IN THE COURSE OF PRETRIAL PROCEEDINGS THE CIRCUMSTANCES UNDER WHICH
THE PETITIONER HAD BEEN INJURED WERE FULLY DISCLOSED, AND THEY ARE NOT
IN DISPUTE.  ON THE DAY IN QUESTION THE SHIP LAY MOORED TO A DOCK IN
NEW ORLEANS, LOUISIANA, RECEIVING CARGO FROM A BARGE POSITIONED
ALONGSIDE.  THE LOADING OPERATIONS WERE PERFORMED BY THE PETITIONER AND
HIS FELLOW LONGSHOREMEN UNDER THE DIRECTION OF THEIR EMPLOYER.  SOME OF
THE MEN WERE ON THE SHIP, OPERATING THE PORT WINCH AND BOOM AT THE NO.
2 HATCH.  THE PETITIONER AND OTHERS WERE ON THE BARGE, WHERE THEIR JOB
WAS TO "BREAK OUT" THE BUNDLES OF CARGO BY SECURING THEM TO A SLING
ATTACHED TO THE FALL EACH TIME IT WAS LOWERED FROM THE SHIP'S BOOM BY
THE WINCH OPERATOR.  THE LOADING OPERATIONS HAD BEEN PROCEEDING IN THIS
MANNER FOR SOME TIME, UNTIL UPON ONE OCCASION THE WINCH OPERATOR DID
NOT LOWER THE FALL FAR ENOUGH.  FINDING THE SLING BEYOND HIS REACH, THE
PETITIONER MOTIONED TO THE FLAGMAN STANDING ON THE DECK OF THE SHIP TO
DIRECT THE WINCH OPERATOR TO LOWER THE FALL FARTHER.  THE WINCH
OPERATOR THEN LOWERED THE FALL, BUT HE LOWERED IT TOO FAR AND TOO
FAST.  THE SLING STRUCK THE PETITIONER, KNOCKING HIM TO THE DECK OF THE
BARGE AND CAUSING HIS INJURIES.  NEITHER BEFORE NOR AFTER THIS
OCCURRENCE WAS ANY DIFFICULTY EXPERIENCED WITH THE WINCH, BOOM, FALL,
SLING, OR ANY OTHER EQUIPMENT OR APPURTENANCE OF THE SHIP OR HER
CARGO. 

THE RESPONDENTS MOVED FOR SUMMARY JUDGMENT IN THE DISTRICT COURT,
UPON THE GROUND THAT A SINGLE NEGLIGENT ACT BY A FELLOW LONGSHOREMAN
COULD NOT RENDER THE SHIP UNSEAWORTHY.  THE DISTRICT COURT DENIED THE
MOTION, BUT GRANTED THE RESPONDENTS LEAVE TO TAKE AN INTERLOCUTORY
APPEAL UNDER 28 U.S.C. 1292(B).  /1/  THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT ALLOWED THE APPEAL AND, REVERSING THE
DISTRICT COURT, DIRECTED THAT THE RESPONDENTS' MOTION FOR SUMMARY
JUDGMENT BE GRANTED.  413 F.2D 984.  IT WAS THE APPELLATE COURT'S VIEW
THAT "'(INSTANT UNSEAWORTHINESS'  RESULTING FROM 'OPERATIONAL
NEGLIGENCE' OF THE STEVEDORING CONTRACTOR IS NOT A BASIS FOR RECOVERY
BY AN INJURED LONGSHOREMAN."  413 F.2D,AT 985-986.  WE GRANTED
CERTIORARI, 397 U.S. 933, BECAUSE OF A CONFLICT AMONG THE CIRCUITS ON
THE BASIC ISSUE PRESENTED.  /3/ 

THE DEVELOPMENT IN ADMIRALTY LAW OF THE DOCTRINE OF UNSEAWORTHINESS
AS A PREDICATE FOR A SHIPOWNER'S LIABILITY FOR PERSONAL INJURIES OR
DEATH HAS BEEN FULLY CHRONICLED ELSEWHERE, AND IT WOULD SERVE NO USEFUL
PURPOSE TO REPEAT THE DETAILS OF THAT DEVELOPMENT HERE.  /3/  SUFFICE
IT TO RECALL THAT FROM ITS HUMBLE ORIGIN AS A DICTUM IN AN OBSCURE CASE
IN 1922, /4/  THE DOCTRINE OF LIABILITY BASED UPON UNSEAWORTHINESS HAS
EXPERIENCED A MOST EXTRAORDINARY EXPANSION IN A SERIES OF CASES DECIDED
BY THIS COURT OVER THE LAST 25 YEARS.  /5/  THE COURT'S DECISIONS IN
SOME OF THOSE CASES HAVE BEEN SEVERELY QUESTIONED, BY DISSENTING
JUSTICES AND BY OTHERS, ON THE BASIS OF HISTORY, REASON, AND LOGIC. 
/6/  THE PRESENT CASE, HOWEVER, OFFERS NO OCCASION TO RE-EXAMINE ANY OF
OUR PREVIOUS DECISIONS.  WE MAY ACCEPT IT AS FULLY SETTLED THAT A
SHIPOWNER'S LIABILITY FOR AN UNSEAWORTHY VESSEL EXTENDS BEYOND THE
MEMBERS OF THE CREW AND INCLUDES A LONGSHOREMAN LIKE THE PETITIONER. 
/7/  WE MAY ACCEPT IT AS SETTLED, TOO, THAT THE SHIPOWNER IS LIABLE
THOUGH THE UNSEAWORTHINESS BE TRANSITORY, /8/  AND THOUGH THE INJURY BE
SUFFERED ELSEWHERE THAN ABOARD THE SHIP.  /9/  BUT THESE PROPOSITIONS
DO NOT DISPOSE OF THE CASE BEFORE US.  FOR THE QUESTION HERE GOES TO
THE VERY DEFINITION OF WHAT UNSEAWORTHINESS IS AND WHAT IT IS NOT. 

A MAJOR BURDEN OF THE COURT'S DECISIONS SPELLING OUT THE NATURE AND
SCOPE OF THE CAUSE OF ACTION FOR UNSEAWORTHINESS HAS BEEN INSISTENCE
UPON THE POINT THAT IT IS A REMEDY SEPARATE FROM, INDEPENDENT OF, AND
ADDITIONAL TO OTHER CLAIMS AGAINST THE SHIPOWNER, WHETHER CREATED BY
STATUTE /10/  OR UNDER GENERAL MARITIME LAW.  /11/ MORE SPECIFICALLY,
THE COURT HAS REPEATEDLY TAKEN PAINS TO POINT OUT THAT LIABILITY BASED
UPON UNSEAWORTHINESS IS WHOLLY DISTINCT FROM LIABILITY BASED UPON
NEGLIGENCE.  /12/  THE REASON, OF COURSE, IS THAT UNSEAWORTHINESS IS A
CONDITION, AND HOW THAT CONDITION CAME INTO BEING-- WHETHER BY
NEGLIGENCE OR OTHERWISE-- IS QUITE IRRELEVANT TO THE OWNER'S LIABILITY
FOR PERSONAL INJURIES RESULTING FROM IT. 

WE HAD OCCASION TO EMPHASIZE THIS BASIC DISTINCTION AGAIN IN
MITCHELL V. TRAWLER RACER, 362 U.S. 539.  THERE THE UNSEAWORTHY
CONDITION CAUSING THE PLAINTIFF'S INJURY WAS A SHIP'S RAIL MADE
SLIPPERY BY THE PRESENCE OF FISH GURRY AND SLIME.  THE TRIAL JUDGE HAD
INSTRUCTED THE JURY THAT THE SHIPOWNER COULD BE HELD LIABLE FOR THIS
UNSEAWORTHY CONDITION ONLY UPON A FINDING THAT THE SLIME AND GURRY HAD
BEEN ON THE SHIP'S RAIL FOR A TIME LONG ENOUGH FOR THE RESPONDENT TO
HAVE LEARNED ABOUT IT AND TO HAVE REMOVED IT.  THE COURT OF APPEALS
AFFIRMED THE JUDGMENT FOR THE DEFENDANT SHIPOWNER, HOLDING THAT AT
LEAST WITH RESPECT TO "AN UNSEAWORTHY CONDITION WHICH ARISES ONLY
DURING THE PROGRESS OF THE VOYAGE," THE SHIPOWNER'S OBLIGATION "IS
MERELY TO SEE THAT REASONABLE CARE IS USED UNDER THE CIRCUMSTANCES . .
. INCIDENT TO THE CORRECTION OF THE NEWLY ARISEN DEFECT."  265 F.2D
426, 432.  WE REVERSED THE JUDGMENT, HOLDING THAT THE TRIAL AND
APPELLATE COURTS HAD BEEN WRONG IN CONFUSING LIABILITY FOR NEGLIGENCE
WITH LIABILITY FOR UNSEAWORTHINESS.  WHAT HAS EVOLVED IN OUR CASE LAW,
WE SAID, IS THE "COMPLETE DIVORCEMENT OF UNSEAWORTHINESS LIABILITY FROM
CONCEPTS OF NEGLIGENCE."  362 U.S.,AT 550. 

TRAWLER RACER INVOLVED THE DEFECTIVE CONDITION OF A PHYSICAL PART OF
THE SHIP ITSELF.  BUT OUR CASES HAVE HELD THAT THE SCOPE OF
UNSEAWORTHINESS MIGHT ARISE FROM ANY NUMBER OF CIRCUMSTANCES.  HER GEAR
MIGHT BE DEFECTIVE, /13/  HER APPURTENANCES IN DISREPAIR, /14/  HER
CREW UNFIT.  /15/  THE NUMBER OF MEN ASSIGNED TO PERFORM A SHIPBOARD
TASK MIGHT BE INSUFFICIENT.  /16/  THE METHOD OF LOADING HER CARGO, OR
THE MANNER OF ITS STOWAGE, MIGHT BE IMPROPER.  /17/  FOR ANY OF THESE
REASONS, OR OTHERS, A VESSEL MIGHT NOT BE REASONABLY FIT FOR HER
INTENDED SERVICE. 

WHAT CAUSED THE PETITIONER'S INJURIES IN THE PRESENT CASE, HOWEVER,
WAS NOT THE CONDITION OF THE SHIP, HER APPURTENANCES, HER CARGO, OR HER
CREW, /18/  BUT THE ISOLATED, PERSONAL NEGLIGENT ACT OF THE
PETITIONER'S FELLOW LONGSHOREMAN.  TO HOLD THAT THIS INDIVIDUAL ACT OF
NEGLIGENCE RENDERED THE SHIP UNSEAWORTHY WOULD BE TO SUBVERT THE
FUNDAMENTAL DISTINCTION BETWEEN UNSEAWORTHINESS AND NEGLIGENCE THAT WE
HAVE SO PAINSTAKINGLY AND REPEATEDLY EMPHASIZED IN OUR DECISIONS.  /19/
IN TRAWLER RACER, SUPRA, THERE EXISTED A CONDITION OF UNSEAWORTHINESS,
AND WE HELD IT WAS ERROR TO REQUIRE A FINDING OF NEGLIGENT CONDUCT IN
ORDER TO HOLD THE SHIPOWNER LIABLE.  THE CASE BEFORE US PRESENTS THE
OTHER SIDE OF THE SAME COIN.  FOR IT WOULD BE EQUALLY ERRONEOUS HERE,
WHERE NO CONDITION OF UNSEAWORTHINESS EXISTED, TO HOLD THE SHIPOWNER
LIABLE FOR A THIRD PARTY'S SINGLE AND WHOLLY UNFORESEEABLE ACT OF
NEGLIGENCE.  THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

     IT IS SO ORDERED. 

/1/  28 U.S.C. 1292(B) PROVIDES AS FOLLOWS: 

"WHEN A DISTRICT JUDGE, IN MAKING IN A CIVIL ACTION AN ORDER NOT
OTHERWISE APPEALABLE UNDER THIS SECTION, SHALL BE OF THE OPINION THAT
SUCH ORDER INVOLVES A CONTROLLING QUESTION OF LAW AS TO WHICH THERE IS
SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION AND THAT AN IMMEDIATE
APPEAL FROM THE ORDER MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION
OF THE LITIGATION, HE SHALL SO STATE IN WRITING IN SUCH ORDER.  THE
COURT OF APPEALS MAY THEREUPON, IN ITS DISCRETION, PERMIT AN APPEAL TO
BE TAKEN FROM SUCH ORDER, IF APPLICATION IS MADE TO IT WITHIN TEN DAYS
AFTER THE ENTRY OF THE ORDER:  PROVIDED, HOWEVER, THAT APPLICATION FOR
AN APPEAL HEREUNDER SHALL NOT STAY PROCEEDINGS IN THE DISTRICT COURT
UNLESS THE DISTRICT JUDGE OR THE COURT OF APPEALS OR A JUDGE THEREOF
SHALL SO ORDER." 

/2/  COMPARE CANDIANO V. MOORE-MCCORMACK LINES, 382 F.2D 961 (CA2);
ALEXANDER V. BETHLEHEM STEEL CORP., 382 F.2D 963 (CA2); CLEARY V.
UNITED STATES LINES CO., 411 F.2D 1009 (CA2); BENABLE V. A/S DET
FORENEDE DAMPSHIBSSELSKAB, 399 F.2D 347 (CA4), WITH GRIGSBY V. COASTAL
MARINE SERVICE, 412 F.2D 1011 (CA5), AND TIM V. AMERICAN PRESIDENT
LINES, 409 F.2D 385 (CA9). 

/3/  SEE MITCHELL V. TRAWLER RACER, 362 U.S. 539; ID., AT 550
(FRANKFURTER, J., DISSENTING); SEE ALSO, G. GILMORE & C. BLACK, THE LAW
OF ADMIRALTY 315-332 (1957); TETREAULT, SEAMEN, SEAWORTHINESS, AND THE
RIGHTS OF HARBOR WORKERS, 39 CORNELL L.Q. 381. 

/4/  CARLISLE PACKING CO. V. SANDANGER, 259 U.S. 255.  THERE IT WAS
SAID, "(WE THINK THE TRIAL COURT MIGHT HAVE TOLD THE JURY THAT WITHOUT
REGARD TO NEGLIGENCE THE VESSEL WAS UNSEAWORTHY WHEN SHE LEFT THE DOCK
. . . AND THAT IF THUS UNSEAWORTHY AND ONE OF THE CREW RECEIVED DAMAGE
AS THE DIRECT RESULT THEREOF, HE WAS ENTITLED TO RECOVER COMPENSATORY
DAMAGES."  259 U.S.,AT 259. 

/5/  MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96; SEAS SHIPPING CO. V.
SIERACKI, 328 U.S. 85 POPE & TALBOT, INC. V. HAWN, 346 U.S. 406; ALASKA
STEAMSHIP CO. V. PETTERSON, 347 U.S. 396; ROGERS V. UNITED STATES
LINES, 347 U.S. 984; BOUDOIN V. LYKES BROS. S.S. CO., 348 U.S. 336;
CRUMADY V. THE J.H. FISSER, 358 U.S. 423; MITCHELL V. TRAWLER RACER,
362 U.S. 539; A. & G. STEVEDORES V. ELLERMAN LINES, 369 U.S. 355;
GUTIERREZ V. WATERMAN S.S. CORP., 373 U.S. 206; WALDRON V. MOORE
MCCORMACK LINES, 386 U.S. 724. 

/6/  SEE, E.G., MAHNICH V. SOUTHERN S.S. CO., SUPRA, AT 105
(ROBERTS, J., JOINED BY FRANKFURTER, J., DISSENTING), SEAS SHIPPING CO.
V. SIERACKI, SUPRA, AT 103 (STONE, C.J., JOINED BY FRANKFURTHER AND
BURTON, JJ., DISSENTING); POPE & TALBOT, INC. V. HAWN, SUPRA, AT 419
(JACKSON, J., JOINED BY REED AND BURTON, JJ., DISSENTING); ALASKA
STEAMSHIP CO. V. PETTERSON, SUPRA (BURTON, J., JOINED BY FRANKFURTER
AND JACKSON, JJ., DISSENTING); MITCHELL V. TRAWLER RACER, SUPRA, AT 550
(FRANKFURTER J., JOINED BY HARLAN AND WHITTAKER, JJ., DISSENTING);
GUTIERREZ V. WATERMAN S.S. CORP., SUPRA, AT 216 (HARLAN, J.,
DISSENTING); WALDRON V. MOORE-MCCORMACK LINES, SUPRA, AT 729 (WHITE,
J., JOINED BY HARLAN, BRENNAN, AND STEWART, JJ., DISSENTING). 

SEE ALSO G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY 315-332 (1957);
TETREAULT, SEAMAN, SEAWORTHINESS, AND THE RIGHT OF HARBOR WORKERS, 39
CORNELL L.Q. 381. 

/7/  SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85. 

/8/  CRUMADY V. THE J.H. FISSER, 358 U.S. 423; MITCHELL V. TRAWLER
RACER, 362 U.S. 539. 

/9/  GUTIERREZ V. WATERMAN S.S. CORP., 373 U.S. 206. 

/10/  E.G., THE JONES ACT, 41 STAT. 1007, 46 U.S.C. 688.  THE
PETITIONER IN THE PRESENT CASE WAS FULLY COVERED, OR COURSE, BY THE
PROVISIONS OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT,
33 U.S.C. 901 ET SEQ. 

/11/  E.G., MAINTENANCE AND CURE.  SEE CALMAR S.S. CORP. V. TAYLOR,
303 U.S. 525; WATERMAN S.S. CORP. V. JONES, 318 U.S. 724; FARRELL V.
UNITED STATES, 336 U.S. 511; WARREN V. UNITED STATES, 340 U.S. 523. 

/12/  E.G., SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85, 94:  "(THE
LIABILITY IS NEITHER LIMITED BY CONCEPTIONS OF NEGLIGENCE NOR
CONTRACTUAL IN CHARACTER." 

/13/  MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96. 

/14/  SEAS SHIPPING CO., V. SIERACKI, 328 U.S. 85. 

/15/  BOUDOIN V. LYKES BROS. S.S. CO., 348 U.S. 336. 

/16/  WALDRON V. MOORE-MCCORMACK LINES, 386 U.S. 724. 

/17/  A. & G. STEVEDORES V. ELLERMAN LINES, 369 U.S. 355; GUTIERREZ
V. WATERMAN S.S. CORP., 373 U.S. 206. 

/18/  NO MEMBER OF THE SHIP'S CREW WAS IN ANY WAY INVOLVED IN THIS
CASE. 

/19/  THE PETITIONER'S RELIANCE UPON OUR SUMMARY PER CURIAM REVERSAL
OF A JUDGMENT FOR THE SHIPOWNER IN MASCUILLI V. UNITED STATES, 387 U.S.
237, IS MISPLACED.  THERE A LONGSHOREMAN HAD BEEN KILLED DURING A
LOADING OPERATION ABOARD A GOVERNMENT VESSEL WHEN, UNDER THE STRAIN OF
THE OPPOSING PULL OF TWO WINCHES, A HEAVY SHACKLE PARTED, RECOLLED, AND
STRUCK THEM.  THE PETITION FOR CERTIORARI POSED THREE QUESTIONS:  (1)
DID A PRIOR UNSEAWORTHY CONDITION COME INTO PLAY BY THE TIGHTLINE
CONDITION?  (2) DID THE NEGLIGENT HANDLING OF PROPER EQUIPMENT BY THE
LONGSHOREMEN CREATE A DANGEROUS CONDITION RENDERING THE VESSEL
UNSEAWORTHY?  (3) WAS THE VESSEL UNSEAWORTHY BECAUSE THE LONGSHOREMEN
WERE NOT "EQUAL IN DISPOSITION AND SEAMANSHIP TO THE ORDINARY MEN IN
THE CALLING," AS WAS FOUND IN BOUDOIN V. LYKES BROS. S.S. CO., 348 U.S.
336? 

OUR PER CURIAM REVERSAL CITED TWO CASES:  MAHNICH V. SOUTHERN
S.S.CO., 321 U.S. 96, AND CRUMADY V. THE J. H. FISSER, 358 U.S. 423. 
MAHNICH INVOLVED A DEFECTIVE ROPE, CRUMADY A DEFECTIVE WINCH.  IT SEEMS
EVIDENT, THEREFORE, THAT IT WAS THE FIRST QUESTION POSED BY THE
PETITION FOR CERTIORARI TO WHICH THE COURT GAVE AN AFFIRMATIVE ANSWER. 
MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

WHILE PETITIONER WAS WORKING ON A BARGE LOADING CARGO INTO A HATCH
OF THE SHIP, HE WAS INJURED AS A RESULT OF THE NEGLIGENT OPERATION OF A
WINCH.  THE WINCH WAS PART OF THE SHIP AND THE WINCH OPERATOR WAS A
MEMBER OF THE CREW OF STEVEDORES.  THE INJURY WAS CAUSED BY A LOWERING
OF A SLING, WHICH CARRIED THE CARGO, TOO QUICKLY AND TOO FAR. 

PRIOR TO THE 1970 TERM THE JUDGMENT DENYING RECOVERY WOULD HAVE BEEN
REVERSED, PROBABLY OUT OF HAND.  WE HELD IN MAHNICH V. SOUTHER S.S.
CO., 321 U.S. 96, THAT THE OBLIGATION OF AN OWNER TO FURNISH A
SEAWORTHY SHIP EXTENDS TO SEAWORTHY APPLICANCES.  WE ALSO HELD THAT THE
OWNER WAS NOT INSULATED FROM LIABILITY BY THE "NEGLIGENT FAILURE" OF
HIS OFFICERS OR MEMBERS OF THE CREW TO FURNISH SEAWORTHY APPLIANCES. 
ID., AT 101.  IN MAHNICH, THE STAGING FROM WHICH THE SEAMAN FELL WAS AN
UNSEAWORTHY APPLIANCE BECAUSE OF THE DEFECTIVE ROPE WITH WHICH IT WAS
RIGGED.  THERE WAS SOUND ROPE ON BOARD BUT DEFECTIVE ROPE WAS USED. 
THE FACT THAT THE MATE AND BOATSWAIN WERE NEGLIGENT IN SELECTING
DEFECTIVE ROPE WAS HELD TO BE NO DEFENSE. 

IN CRUMADY V. THE J.H. FISSER, 358 U.S. 423, A WINCH WAS NOT
INHERENTLY DEFECTIVE AS WAS THE ROPE IN MAHNICH.  BUT IS WAS USED IN A
WAY WHICH MADE IT UNSAFE AND DANGEROUS FOR THE WORK AT HAND.  WHILE THE
RIGGING WOULD TAKE ONLY THREE TONS OF STRESS, THE CUTOFF OF THE WINCH,
"ITS SAFETY DEVIDE," WAS SET AT TWICE THAT LIMIT.  ID., AT 427.  AND SO
THE ROPE SLING BROKE AND INJURED THE SEAMAN.  THE VESSEL WHICH PAID THE
DAMAGES WAS ALLOWED TO RECOVER OVER FROM THE STEVEDORES WHOSE
NEGLIGENCE WITH THE WINCH MADE THE VESSEL PRO TANTO UNSEAWORTHY. 

IN MASCUILLI V. UNITED STATES, 387 U.S. 237, NEGLIGENT USE OF A
WINCH IN A LOADING OPERATION SO OBVIOUSLY MADE THE VESSEL PRO TANTO
UNSEAWORTHY THAT WE REVERSED OUT OF HAND A JUDGMENT OF NO LIABILITY,
CITING MAHNICH AND CRUMADY. 

WHAT WE SAID IN MITCHELL V. TRAWLER RACER, 362 U.S. 539, 550, ABOUT
THE "COMPLETE DIVORCEMENT OF UNSEAWORTHINESS LIABILITY FROM CONCEPTS ON
NEGLIGENCE" RELATED TO A CONDITION WHICH MADE THE VESSEL NOT
"REASONABLY SUITABLE FOR HER INTENDED SERVICE."  YET ALONGSIDE THAT
CONVENTIONAL TYPE OF UNSEAWORTHINESS RESULTING FROM OPERATIONAL
NEGLIGENCE. 

INDEED, THE DOCTRINE OF OPERATIONAL NEGLIGENCE WHICH CAUSES
UNSEAWORTHINESS HAS HAD A STURDY GROWTH.  CHIEF JUSTICE STONE, WRITING
FOR THE COURT IN MAHNICH, SHOWED THAT THIS DOCTRINE GOES AT LEAST AS
FAR BACK AS THE OSCEOLA, 189 U.S. 158, DECIDBD IN 1903.  SEE 321 U.S.,
AT 101-104.  THE INTERVENING DECISION OF PLAMALS V. PINAR DEL RIO, 277
U.S. 151, WHICH LOOKED THE OTHER WAY, WAS DECIDED IN 1928.  IT WAS
AROUND THAT CASE THAT JUSTICES ROBERTS AND FRANKFURTER TURNED THEIR
DISSENT, SAYING THAT UNLESS THE COURT FOLLOWED PRECEDENT "THE LAW
BECOMES NOT A CHART TO GOVERN CONDUCT BUT A GAME OF CHANCE; INSTEAD OF
SETTLING RIGHTS AND LIABILITIES IT UNSETTLES THEM."  321 U.S.,AT 112. 
THE ADDED: 

"RESPECT FOR TRIBUNALS MUST FALL WHEN THE BAR AND THE PUBLIC COME TO
UNDERSTAND THAT NOTHING THAT HAS BEEN SAID IN PRIOR ADJUDICATION HAS
FORCE IN A CURRENT CONTROVERSY."  ID., AT 113. 

JUSTICES ROBERTS AND FRANKFURTER BITTERLY EXPRESSED THAT VIEW IN
MAHNICH WHEN PINAR DEL RIO WAS OVERRULED-- A FREAK DECISION NOT IN
KEEPING WITH THE MAINSTREAM OF THE LAW THAT HAD COME BEFORE. 

CHANGES IN MEMBERSHIP DO CHANGE DECISIONS; AND THOSE CHANGES ARE
EXPECTED AT THE LEVEL OF CONSTITUTIONAL LAW.  BUT WHEN PRIVATE RIGHTS
NOT ROOTED IN THE CONSTITUTION ARE AT ISSUE, IT IS SURPRISING TO FIND
LAW MADE BY NEW JUDGES TAKING THE PLACE OF LAW MADE BY PRIOR JUDGES. 

UP TO TODAY OPERATIONAL NEGLIGENCE HAS BEEN ONE STURDY TYPE OF
UNSEAWORTHINESS.  /1/  I WOULD LET IT CONTINUE AS THE PREVAILING RULE
UNLESS CONGRESS IN ITS WISDOM CHANGES IT. 

/1/  THE SECOND CIRCUIT ADOPTED THE VIEW THAT WHILE ONE ACT OF
OPERATIONAL NEGLIGENCE WOULD NOT MAKE A VESSEL UNSEAWORTHY,
UNSEAWORTHINESS DID RESULT IF THE NEGLIGENT ACT WAS INCIDENT TO A
CONTINUOUS COURSE OF OPERATION AS WHERE A WRONG HATCH COVER WAS USED,
GRILLEA V. UNITED STATES, 232 F.2D 919, BUT NOT BY AN ISOLATED ACT AS
WHERE A BOOM WAS CARRYING A DANGEROUS STRESS DUE TO A NEGLIGENT ACT. 
PUDDU V. ROYAL NETHERLANDS S.S. CO., 303 F.2D 752.  THE DIFFERENCE IN
THE TWO CASES WAS STATED AS FOLLOWS: 

"A SHIP IS NOT UNSEAWORTHY BECAUSE IT HAS GLASS IN A WINDOW WHICH
MIGHT BE BROKEN.  THE INJURIES OF A SEAMAN WHO NEGLIGENTLY BREAKS SUCH
A GLASS ARE NOT THE RESULT OF UNSEAWORTHINESS, NOR ARE THE INJURIES OF
A SEAMAN WHO IS CUT BY THE FALLING GLASS.  BUT INJURY INCURRED IN
STEPPING ON THE BROKEN GLASS DOES RESULT FROM UNSEAWORTHINESS."  ID.,
AT 757. 

THE SECOND CIRCUIT, HOWEVER, REFUSED TO FOLLOW GRILLEA AFTER OUR
MASCUILLI DECISION.  CANDIANO V. MOORE-MCCORMACK LINES, 382 F.2D 961;
ALEXANDER V. BETHLEHEM STEEL CORP., 382 F.2D 963; CLEARY V. UNITED
STATES LINES CO., 411 F.2D 1009; TARABOCCHIA V. ZIM ISRAEL NAVIGATION
CO., 417 F.2D 476.  THE FOURTH CIRCUIT FOLLOWED SUIT VENABLE V. A/S DET
FORENEDE DAMPSKIBSSELSKAB, 399 F.2D 347; LUNDY V. ISTHMIAN LINES, 423
F.2D 913. 

ONLY THE FIFTH CIRCUIT IN THE INSTANT CASE AND IN GRIGSBY V. COASTAL
MARINE SERVICE, 412 F.2D 1011, AND THE NINTH IN TIM V. AMERICAN
PRESIDENT LINES, 409 F.2D 385, STOOD AGAINST THE RULE OF MASCUIILI. 

MR. JUSTICE HARLAN, DISSENTING. 

PAST DECISIONS OF THIS COURT HAVE EXPANDED THE DOCTRINE OF
UNSEAWORTHINESS ALMOST TO THE POINT OF ABSOLUTE LIABILITY.  IT HAVE
OFTEN PROTESTED AGAINST THIS DEVELOPMENT.  SEE, E.G., THE CASES CITED
BY THE COURT, ANTE, AT 497 N. 6.  BUT I MUST IN GOOD CONSCIENCE REGARD
THE PARTICULAR ISSUE IN THIS CASE AS HAVING BEEN DECIDED BY DRUMADY V-
THE J.H. FISSER, 358 U.S. 423 (1959), EVEN IF PRIOR DECISIONS DID NOT
INEXORABLY POINT TO THAT RESULT.  AS MY BORTHER DOUGLAS STATES, CRUMADY
CANNOT JUSTLY BE DISTINGUISHED FROM THE CASE BEFORE US.  MUCH AS I
WOULD WELCOME A THOROUGHGOING RE-EXAMINATION OF THE PAST COURSE OF
DEVELOPMENTS IN THE UNSEAWORTHINESS DOCTRINE, I FEAR THAT THE COURT'S
ACTION TODAY CAN ONLY RESULT IN COMPOUNDING THE CURRENT DIFFICULTIES OF
THE LOWER COURTS WITH THIS AREA OF LAW. 

H. ALVA BRUMFIELD ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE EVANGELINE M. VAVRICK AND H. ALVA BRUMFIELD III. 

CHARLES KAHLMEYER, JR., ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM
ON THE BRIEF WERE THOMAS W. THORNE, JR., AND BENJAMIN W. YANCEY. 

ARTHUR J. MANDELL FILED A BRIEF FOR THE AMERICAN TRIAL LAWYERS
ASSOCIATION AS AMICUS CURIAE URGING REVERSAL. 
..END :




















GROPPI V. WISCONSIN, 400 U.S. 505 


       GROPPI V. WISCONSIN

        APPEAL FROM THE SUPREME COURT OF WISCONSIN

        NO. 26.  ARGUED DECEMBER 7, 1970-- DECIDED JANUARY 25,
1971 


STATE LAW THAT CATEGORICALLY PREVENTS A CHANGE OF VENUE FOR A JURY
TRIAL IN A CRIMINAL CASE, REGARDLESS OF THE EXTENT OF LOCAL PREJUDICE
AGAINST THE DEFENDANT, SOLELY ON THE GROUND THAT THE CRIME WITH WHICH
HE IS CHARGED IS A MISDEMEANOR HELD VIOLATIVE OF THE RIGHT TO TRIAL BY
AN IMPARTIAL JURY GUARANTEED BY THE FOURTEENTH AMENDMENT.  PP. 507
512. 

41 WIS.2D 312, 164 N.W.2D 266, VACATED AND REMANDED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,
HARLAN, BRENNAN, WHITE, AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED
A CONCURRING OPINION, IN WHICH BURGER, C.J., JOINED, POST, P. 512. 
BLACK, J., FILED A DISSENTING OPINION, POST, P. 515. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON AUGUST 31, 1967, DURING A PERIOD OF CIVIL DISTURBANCES IN
MILWAUKEE, WISCONSIN, THE APPELLANT, A ROMAN CATHOLIC PRIEST, WAS
ARRESTED IN THAT CITY ON A CHARGE OF RESISTING ARREST.  UNDER WISCONSIN
LAW THAT OFFENSE IS A MISDEMEANOR, PUNISHABLE BY A FINE OF NOT MORE
THAN $500 OR IMPRISONMENT IN THE COUNTY JAIL FOR NOT MORE THAN ONE
YEAR, OR BOTH.  /1/  AFTER A SERIES OF CONTINUANCES, THE APPELLANT WAS
BROUGHT TO TRIAL BEFORE A JURY IN A MILWAUKEE COUNTY COURT ON FEBRUARY
8, 1968.  THE FIRST MORNING OF THE TRIAL WAS OCCUPIED WITH QUALIFYING
THE JURORS, DURING THE COURSE OF WHICH THE APPELLANT EXHAUSTED ALL OF
HIS PEREMPTORY CHALLENGES.  /2/  THE TRIAL THEN PROCEEDED, AND AT ITS
CONCLUSION THE JURY CONVICTED THE APPELLANT AS CHARGED. 

PRIOR TO THE TRIAL, COUNSEL FOR THE APPELLANT FILED A MOTION FOR A
CHANGE OF VENUE FROM MILWAUKEE COUNTY "TO A COUNTY WHERE COMMUNITY
PREJUDICE AGAINST THIS DEFENDANT DOES NOT EXIST AND WHERE AN INPARTIAL
JURY TRIAL CAN BE HAD."  THE MOTION ASKED THE COURT TO TAKE JUDICIAL
NOTICE OF "THE MASSIVE COVERAGE BY ALL NEWS MEDIA IN THIS COMMUNITY OF
THE ACTIVITIES OF THIS DEFENDANT," OR, IN THE ALTERNATIVE, THAT "THE
DEFENDANT BE PERMITTED TO OFFER PROOF OF THE NATURE AND EXTENT THEREOF,
ITS EFFECT UPON THIS COMMUNITY AND ON THE RIGHT OF DEFENDANT TO AN
IMPARTIAL JURY TRIAL."  THE TRIAL JUDGE DENIED THE MOTION, MAKING CLEAR
THAT HIS RULING WAS BASED EXCLUSIVELY ON HIS VIEW THAT WISCONSIN LAW
DID NOT PERMIT A CHANGE OF VENUE IN MIDSEMEANOR CASES.  /3/ 

ON APPEAL, THE SUPREME COURT OF WISCONSIN AFFIRMED THE CONVICTION. 
41 WIS.2D 312, 164 N.W.2D 266.  IT HELD THAT THE TRIAL JUDGE HAD BEEN
CORRECT IN HIS UNDERSTANDING THAT A WISCONSIN STATUTE FORECLOSED THE
POSSIBILITY OF A CHANGE OF VENUE IN A MISDEMEANOR PROSECUTION.  /4/  IT
FURTHER HELD THAT THIS STATE LAW WAS CONSTITUTIONALLY VALID, POINTING
OUT THAT "IT WOULD BE EXTREMELY UNUSUAL FOR A COMMUNITY AS A WHOLE TO
PREJUDICE THE GUILT OF ANY PERSON CHARGED WITH A MISDEMEANOR."  41
WIS.2D,AT 317, 164 N.W.2D,AT 268.  THE COURT ALSO NOTED THAT A
DEFENDANT IN A WISCONSIN MISDEMEANOR PROSECUTION HAS A RIGHT TO ASK FOR
CONTINUANCES AND TO CHALLENGE PROSPECTIVE JURORS ON VOIR DIRE, AND IF
"THESE MEASURES ARE STILL NOT SUFFICIENT TO PROVIDE AN IMPARTIAL JURY,
THE VERDICT CAN BE SET ASIDE AFTER TRIAL BASED ON THE DENIAL OF A FAIR
AND IMPARTIAL TRIAL."  41 WIS.2D,AT 321, 164 N.W.2D,AT 270.  TWO
MEMBERS OF THE COURT DISSENTED, BELIEVING THAT THE STATE STATUTE DID
NOT ABSOLUTELY FORBID A CHANGE OF VENUE IN A MISDEMEANOR PROSECUTION,
AND THAT IF THE STATUTE DID CONTAIN SUCH A PROHIBITION IT WAS
CONSTITUTIONALLY INVALID.  41 WIS.2D,AT 325, 164 N.W.2D,AT 272. 

THIS APPEAL FOLLOWED, AND WE NOTED PROBABLE JURISDICTION.  398 U.S.
957.  AS THE CASE REACHES US WE MUST, OF COURSE, ACCEPT THE
CONSTRUCTION THAT THE SUPREME COURT OF WISCONSIN HAS PUT UPON THE STATE
STATUTE.  E.G., KINGSLEY PICTURES CORP. V. REGENTS, 360 U.S. 684, 688. 
THE QUESTION BEFORE US, THEREFORE, GOES TO THE CONSTITUTIONALITY OF A
STATE LAW THAT CATEGORICALLY PREVENTS A CHANGE OF VENUE FOR A CRIMINAL
JURY TRIAL, REGARDLESS OF THE EXTENT OF LOCAL PREJUDICE AGAINST THE
DEFENDANT, ON THE SOLE GROUND THAT THE CHARGE AGAINST HIM IS LABELED A
MISDEMEANOR.  /5/  WE HOLD THAT THIS QUESTION WAS ANSWERED CORRECTLY BY
THE DISSENTING JUSTICES IN THE SUPREME COURT OF WISCONSIN.  /6/ 

THE ISSUE IN THIS CASE IS NOT WHETHER THE FOURTEENTH AMENDMENT
REQUIRES A STATE TO ACCORD A JURY TRIAL TO A DEFENDANT ON A CHARGE SUCH
AS THE APPELLANT FACED HERE.  /7/  THE ISSUE CONCERNS, RATHER, THE
NATURE OF THE JURY TRIAL THAT THE FOURTEENTH AMENDMENT COMMANDS, WHEN
TRIAL BY JURY IS WHAT THE STATE HAS PURPORTED TO ACCORD.  /8/  WE HAD
OCCASION TO CONSIDER THIS PRECISE QUESTION ALMOST 10 YEARS AGO IN IRVIN
V. DOWD, 366 U.S. 717.  THERE WE FOUND THAT AN INDIANA CONVICTION COULD
NOT CONSTITUTIONALLY STAND BECAUSE THE JURY HAD BEEN INFECTED BY
COMMUNITY PREJUDICE BEFORE THE TRIAL HAD COMMENCED.  WHAT THE COURT
SAID IN THAT CASE IS WHOLLY RELEVANT HERE: 

"IN ESSENCE, THE RIGHT TO JURY TRIAL GUARANTEES TO THE CRIMINALLY
ACCUSED A FAIR TRIAL BY A PANEL OF IMPARTIAL, "INDIFFERENT"  JURORS. 
THE FAILURE TO ACCORD AN ACCUSED A FAIR HEARING VIOLATES EVEN THE
MINIMAL STANDARDS OF DUE PROCESS.  IN RE OLIVER, 333 U.S. 257; TUMEY V.
OHIO, 273 U.S. 510.  'A FAIR TRIAL IN A FAIR TRIBUNAL IS A BASIC
REQUIREMENT OF DUE PROCESS.'  IN RE MURCHISON, 349 U.S. 133, 136.  IN
THE ULTIMATE ANALYSIS, ONLY THE JURY CAN STRIP A MAN OF HIS LIBERTY OR
HIS LIFE.  IN THE LANGUAGE OF LORD COKE, A JUROR MUST BE AS
'INDIFFERENT AS HE STANDS UNSWORNE.'  CO. LITT.  155B.  HIS VERDICT
MUST BE BASED UPON THE EVIDENCE DEVELOPED AT THE TRIAL.  CF. THOMPSON
V. CITY OF LOUISVILLE, 362 U.S. 199.  THIS IS TRUE, REGARDLESS OF THE
HEINOUSNESS OF THE CRIME CHARGED, THE APPARENT GUILT OF THE OFFENDER OR
THE STATION IN LIFE WHICH HE OCCUPIES.  IT WAS SO WRITTEN INTO OUR LAW
AS EARLY AS 1807 BY CHIEF JUSTICE MARSHALL IN 1 BURR'S TRIAL 416.  . .
. "  366 U.S.,AT 722. 

THERE ARE MANY WAYS TO TRY TO ASSURE THE KIND OF IMPARTIAL JURY THAT
THE FOURTEENTH AMENDMENT GUARANTEES.  /9/  IN SHEPPARD V. MAXWELL, 384
U.S. 333, THE COURT ENUMERATED MANY OF THE PROCEDURES AVAILABLE,
PARTICULARLY IN THE CONTEXT OF A JURY THREATENED BY THE POISONOUS
INFLUENCE OF PREJUDICIAL PUBLICITY DURING THE COURSE OF THE TRIAL
ITSELF.  384 U.S.,AT 357-363.  HERE WE ARE CONCERNED WITH THE METHODS
AVAILABLE TO ASSURE AN IMPARTIAL JURY IN A IN A SITUATION WHERE,
BECAUSE OF PREJUDICIAL PUBLICITY OR FOR SOME OTHER REASON, THE
COMMUNITY FROM WHICH THE JURY IS TO BE DRAWN MAY ALREADY BE PERMEATED
WITH HOSTILITY TOWARD THE DEFENDANT.  THE PROBLEM IS AN ANCIENT ONE. 
MR. JUSTICE HOLMES STATED NO MORE THAN A COMMONPLACE WHEN, TWO
GENERATIONS AGO, HE NOTED THAT "(ANY JUDGE WHO HAS SAT WITH JURIES
KNOWS THAT IN SPITE OF FORMS THEY ARE EXTREMELY LIKELY TO BE
IMPREGNATED BY THE ENVIRONING ATMOSPHERE."  FRANK V. MANGUM, 237 U.S.
309, 349 (DISSENTING OPINION). 

ONE WAY TO TRY TO MEET THE PROBLEM IS TO GRANT A CONTINUANCE OF THE
TRIAL IN THE HOPE THAT IN THE COURSE OF TIME THE FIRES OF PREJUDICE
WILL COOL.  BUT THIS HOPE MAY NOT BE REALIZED, AND CONTINUANCES,
PARTICULARLY IF THEY ARE REPEATED, WORK AGAINST THE IMPORTANT VALUES
IMPLICIT IN THE CONSTITUTIONAL GUARANTEE OF A SPEEDY TRIAL.  /10/
ANOTHER WAY IS TO PROVIDE A METHOD OF JURY QUALIFICATION THAT WILL
PROMOTE, THROUGH THE EXERCISE OF CHALLENGES TO THE VENIRE-- PEREMPTORY
AND FOR CAUSE-- THE EXCLUSION OF PROSPECTIVE JURORS INFECTED WITH THE
PREJUDICE OF THE COMMUNITY FROM WHICH THEY COME.  BUT THIS PROTECTION,
AS IRVIN V. DOWD, SUPRA, SHOWS, IS NOT ALWAYS ADEQUATE TO EFFECTUATE
THE CONSTITUTIONAL GUARANTEE.  /11/ 

ON AT LEAST ONE OCCASION THIS COURT HAS EXPLICITLY HELD THAT ONLY A
CHANGE OF VENUE WAS CONSTITUTIONALLY SUFFICIENT TO ASSURE THE KIND OF
IMPARTIAL JURY THAT IS GUARANTEED BY THE FOURTEENTH AMENDMENT.  THAT
WAS IN THE CASE OF RIDEAU V. LOUISIANA, 373 U.S. 723.  WE HELD THAT "IT
WAS A DENIAL OF DUE PROCESS OF LAW TO REFUSE THE REQUEST FOR A CHANGE
OF VENUE, AFTER THE PEOPLE OF CALCASIEU PARISH HAD BEEN EXPOSED
REPEATEDLY AND IN DEPTH" TO THE PRETRIAL PUBLICITY THERE INVOLVED.  373
U.S., AT 726.  RIDEAU WAS NOT DECIDED UNTIL 1963, BUT ITS MESSAGE
ECHOES MORE THAN 200 YEARS OF HUMAN EXPERIENCE IN THE ENDLESS QUEST FOR
THE FAIR ADMINISTRATION OF CRIMINAL JUSTICE.  /12/ 

IT IS DOUBTLESS TRUE, AS THE SUPREME COURT OF WISCONSIN SAID, THAT
COMMUNITY PREJUDICE IS NOT OFTEN AROUSED AGAINST A MAN ACCUSED ONLY OF
A MISDEMEANOR.  BUT UNDER THE CONSTITUTION A DEFENDANT MUST BE GIVEN AN
OPPORTUNITY TO SHOW THAT A CHANGE OF VENUE IS REQUIRED IN HIS CASE. 
THE WISCONSIN STATUTE WHOLLY DENIED THAT OPPORTUNITY TO THE APPELLANT. 

ACCORDINGLY, THE JUDGMENT IS VACATED, AND THE CASE IS REMANDED TO
THE SUPREME COURT OF WISCONSIN FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  /13/

IT IS SO ORDERED. 

/1/  "WHOEVER KNOWINGLY RESISTS OR OBSTRUCTS AN OFFICER WHILE SUCH
OFFICER IS DOING ANY ACT IN HIS OFFICIAL CAPACITY AND WITH LAWFUL
AUTHORITY, MAY BE FINED NOT MORE THAN $500 OR IMPRISONED NOT MORE THAN
ONE YEAR IN COUNTY JAIL OR BOTH."  WIS. STAT. SEC. 946.41(1) (1967). 

/2/  APPARENTLY NO TRANSCRIPT WAS MADE OF THE VOIR DIRE
PROCEEDINGS. 

/3/  THE COURT: "SO, THEREFORE, THE CHANGE OF VENUE AS ASKED FOR IN
THE MOTION FOR A CHANGE OF VENUE WILL BE DENIED; IT NOT BEING PROVIDED
FOR IN THE WISCONSIN STATUTES.  . . . NO, I'M DENYING THE MOTION FOR A
CHANGE OF VENUE BECAUSE THIS IS A MISDEMEANOR CASE AND NOT A FELONY. 
AND THE WISCONSIN STATUTE DOES NOT PROVIDE FOR A CHANGE OF VENUE IN A
MISDEMEANOR MATTER." 

/4/ THE RELEVANT STATUTE IN EFFECT AT THE TIME OF THE APPELLANT'S
TRIAL WAS WIS. STAT. SEC. 956.03(3) (1967), WHICH PROVIDED: 

"IF A DEFENDANT WHO IS CHARGED WITH A FELONY FILES HIS AFFIDAVIT THAT
AN IMPARTIAL TRIAL CANNOT BE HAD IN THE COUNTY, THE COURT MAY CHANGE
THE VENUE OF THE ACTION TO ANY COUNTY WHERE AN IMPARTIAL TRIAL CAN BE
HAD.  ONLY ONE CHANGE MAY BE GRANTED UNDER THIS SUBSECTION." 

WIS. STAT. SEC. 971.22, EFFECTIVE JULY 1, 1970, NOW PERMITS A CHANGE
OF VENUE IN ALL CRIMINAL CASES.  SEE WIS. LAWS 1969, C. 255, P. 650. 

/5/  WE REJECT THE SUGGESTION THAT THE APPELLANT IS NOT IN A
POSITION TO ATTACK THE STATUTE BECAUSE HE MADE AN INSUFFICIENT SHOWING
OF COMMUNITY PREJUDICE.  HIS MOTION FOR A CHANGE OF VENUE EXPLICITLY
ASKED IN THE ALTERNATIVE THAT HE BE PERMITTED TO "OFFER PROOF" OF THE
NATURE AND EXTENT OF THE LOCAL PREJUDICE AGAINST HIM.  HIS MOTION WAS
DENIED IN ITS ENTIRETY, THUS FORECLOSING ANY OPPORTUNITY TO PRODUCE
EVIDENCE OF A PREJUDICED COMMUNITY.  THE TRIAL COURT'S RULING WAS, OF
COURSE, WHOLLY CONSISTENT WITH ITS VIEW THAT IT WAS POWERLESS TO GRANT
A CHANGE OF VENUE UNDER WISCONSIN LAW, REGARDLESS OF WHAT SHOWING OF
LOCAL PREJUDICE MIGHT HAVE BEEN MADE. 

/6/  ACCORD, PAMPLIN V. MASON, 364 F.2D 1 (CA5); STATE EX REL. RICCO
V. BIGGS, 198 ORE.  413, 255 P.2D 1055. 

/7/  THAT QUESTION WAS ANSWERED AFFIRMATIVELY IN BALDWIN V. NEW
YORK, 399 U.S. 66. 

/8/  WISCONSIN GRANTS A RIGHT TO TRIAL BY JURY IN ALL MISDEMEANOR
CASES.  SEE STATE EX REL. MURPHY V. VOSS, 34 WIS.2D 501, 505, 149
N.W.2D 595, 597; STATE EX REL. SAUK COUNTY DISTRICT ATTORNEY V.
GALLMAR, 32 WIS.2D 406, 410, 145 N.W.2D 670, 672. 

/9/  THE SIXTH AMENDMENT PROVIDES THAT "(IN ALL CRIMINAL
PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO . . . AN IMPARTIAL
JURY.  . . . " 

/10/  SEE KLOPFER V. NORTH CAROLINA, 386 U.S. 213, SMITH V. HOOEY,
393 U.S. 374; DICKEY V. FLORIDA, 398 U.S. 30; ID., AT 39 (BRENNAN, J.,
CONCURRING). 

/11/  SEE GENERALLY BROEDER, VOIR DIRE EXAMINATIONS:  AN EMPIRICAL
STUDY, 38 S.CAL.L.REV.  503 (1965). 

/12/  SEE REX V. HARRIS, 3 BURR.  1330, 1333, 97 ENG.REP.  858, 859
(K.B. 1762):  "NOTWITHSTANDING THE LOCALITY OF SOME SORTS OF ACTIONS,
OR OF INFORMATIONS FOR MISDEMEANORS, IF THE MATTER CAN NOT BE TRIED AT
ALL, OR CAN NOT BE FAIRLY AND IMPARTIALLY TRIED IN THE PROPER COUNTY,
IT SHALL BE TRIED IN THE NEXT ADJOINING COUNTY."  (LORD MANSFIELD.) 

SEE ALSO CROCKER V. JUSTICES OF THE SUPERIOR COURT, 208 MASS. 162,
178-179, 94 N.E. 369, 376-377 (1911): 

"THIS REVIEW DEMONSTRATES THAT THE GREAT WEIGHT OF AUTHORITY
SUPPORTS THE VIEW THAT COURTS, WHICH BY STATUTE OR CUSTOM POSSESS A
JURISDICTION LIKE THAT OF THE KINGS BENCH BEFORE OUR REVOLUTION, HAVE
THE RIGHT TO CHANGE THE PLACE OF TRIAL, WHEN JUSTICE REQUIRES IT, TO A
COUNTY WHERE AN IMPARTIAL TRIAL MAY BE HAD. 

" . . . THERE CAN BE NO JUSTICE IN A TRIAL BY JURORS INFLAMED BY
PASSION, WARPED BY PREJUDICE, AWED BY VIOLENCE, MENACED BY THE
VIRULENCE OF PUBLIC OPINION OR MANIFESTLY BIASED BY ANY INFLUENCES
OPERATING EITHER OPENLY OR INSIDIOUSLY TO SUCH AN EXTENT AS TO POISON
THE JUDGMENT AND PREVENT THE FREEDOM OF FAIR ACTION.  JUSTICE CANNOT BE
ASSURED IN A TRIAL WHERE OTHER CONSIDERATIONS ENTER THE MINDS OF THOSE
WHO ARE TO DECIDE THAT THE SINGLE DESIRE TO ASCERTAIN AND DECLARE THE
TRUTH ACCORDING TO THE LAW AND THE EVIDENCE.  A COURT OF GENERAL
JURISDICTION OUGHT NOT TO BE LEFT POWERLESS UNDER THE LAW TO DO WITHIN
REASON ALL THAT THE CONDITIONS OF SOCIETY AND HUMAN NATURE PERMIT TO
PROVIDE AN UNPREJUDICED PANEL FOR A JURY TRIAL." 

SEE ALSO, E.G., STATE V. ALBEE, 61 N.H. 423, 60 AM.REP.  325
(1881). 

/13/  WHETHER CORRECTIVE RELIEF CAN BE AFFORDED THE APPELLANT SHORT
OF A NEW TRIAL WILL BE FOR THE WISCONSIN COURTS TO DETERMINE IN THE
FIRST INSTANCE.  CF. COLEMAN V. ALABAMA, 399 U.S. 1, 10-11. 

MR. JUSTICE BLACKMUN, WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

ALTHOUGH I AGREE IN LARGE PART WITH THE REASONING OF MR. JUSTICE
BLACK'S OPINION IN DISSENT, I NEVERTHELESS JOIN IN THE COURT'S JUDGMENT
THAT THIS CONVICTION OF FATHER GROPPI MUST BE VACATED AND THE CASE
REMANDED FOR FURTHER PROCEEDINGS.  IN SO DOING, HOWEVER, I FEEL
COMPELLED TO MAKE THE FOLLOWING OBSERVATIONS:     1.  THE PRIMARY
ISSUE, IT SEEMS TO ME, IS WHETHER THE APPELLANT (HEREAFTER DEFENDANT)
RECEIVED A FAIR TRIAL, NOT WHETHER, AS A MATTER OF ABSTRACT
CONSTITUTIONAL LAW, HE WAS ENTITLED TO A CHANGE OF VENUE IN A WISCONSIN
MISDEMEANOR PROSECUTION IN 1968. 

2.  A FAIR TRIAL, OF COURSE, IS FUNDAMENTAL.  NO ONE DISPUTES THAT. 
AS THE COURT POINTS OUT IN FOOTNOTE 12 OF ITS OPINION, THIS PRINCIPLE
OF ENGLISH-AMERICAN JURISPRUDENCE WAS EVOLVED PRIOR TO THE EMBODIEMENT
OF THE TREASURED CONCEPTS OF AN IMPARTIAL JURY IN THE SIXTH AMENDMENT
AND OF DUE PROCESS IN THE FIFTH AND FOURTEENTH. 

3.  IF THE DEFENSE BELIEVES THAT A FAIR TRIAL IS UNLIKELY BECAUSE OF
COMMUNITY PREJUDICE, THAT IS A MATTER FOR PROOF BY THE DEFENSE, AND,
WHEN PROVED, SHOULD CONSTITUTIONALLY WARRANT, AND INDEED DEMAND, A
CHANGE OF VENUE IN ANY CASE, WHETHER THE PROSECUTION BE FOR A FELONY OR
FOR A MISDEMEANOR. 

4.  THUS, I FIND MYSELF IN AGREEMENT WITH THE TWO DISSENTING
JUSTICES OF THE SUPREME COURT OF WISCONSIN AND WITH THAT COURT'S CHIEF
JUSTICE, IN CONCURRING IN THE RESULT OF THE MAJORITY OPINION, WHEN THE
THREE CONCLUDE, 41 WIS.2D 312, 324, 325, 164 N.W.2D 266, 272, THAT A
CHANGE OF VENUE IN A MISDEMEANOR CASE IS CONSTITUTIONALLY REQUIRED UPON
A PROPER SHOWING. 

5.  I AM AT A LOSS TO UNDERSTAND HOW A CHANGE OF VENUE STATUTE
EXPRESSED IN POSITIVE BUT PERMISSIVE TERMS AND SPECIFICALLY APPLICABLE
TO FELONY CASES CAN BE CONSTRUED TO EMBODY A NEGATIVE PROHIBITION FOR
MISDEMEANOR CASES, PARTICULARLY WITH REGARD TO SO FUNDAMENTAL A RIGHT
AS THE RIGHT TO HAVE A TRIAL UNTAINTED BY COMMUNITY PREJUDICE.  THE
STATUTORY INTERPRETATION SO MADE IS ALL THE MORE UNEXPECTED BECAUSE IT
RAISES AN OTHERWISE QUITE AVOIDABLE CONSTITUTIONAL ISSUE. 

6.  BUT THE WISCONSIN COURT HAS SPOKEN AND, BY MAJORITY VOTE, HAS
CONSTRUED THE STATE STATUTE THEN IN EFFECT IN THAT VERY WAY. 
CONSTRUCTION OF THE STATUTE IS THE STATE COURT'S TASK.  IT IS NOT OUR
TASK.  AND WE ARE BOUND BY THE WISCONSIN COURT'S DECISION AS TO THE
MEANING AND APPLICATION OF A WISCONSIN STATUTE. 

7.  THE RECORD BEFORE US LEAVES MUCH TO BE DESIRED.  IT DISCLOSES NO
FORMAL OFFER OF PROOF OF THE KIND CUSTOMARILY MADE.  IT CONTAINS NO
TRANSCRIPT OF THE VOIR DIRE, AND THUS THERE IS NO WAY IN WHICH WE OR
ANYONE ELSE CAN EVALUATE FROM THE VOIR DIRE THE PRESENCE, OR THE
POSSIBILITY OF THE PRESENCE, OF ACTUAL PREJUDICE IN ANY MEMBER OF THE
JURY PANEL.  ALTHOUGH A "MOTION AFTER VERDICT" WAS MADE AND ALTHOUGH IT
REFERRED TO "THE GROUND OF COMMUNITY PREJUDICE," THE MOTION DOES NOT IN
SO MANY WORDS ASSERT THAT THIS DEFENDANT ACTUALLY WAS DENIED A FAIR AND
IMPARTIAL TRIAL.  NEITHER IS THE MOTION SUPPORTED BY AFFIDAVITS
INCORPORATING THE CLAIMED PREJUDICIAL MEDIA REPORTS. 

8.  THE JURY APPEARS TO HAVE BEEN SELECTED EXPEDITIOUSLY AND WITHOUT
DIFFICULTY DURING A SINGLE MORNING.  AND WE NOTE WHAT APPEARS TO BE
CONFLICTING EVIDENCE IN THE RECORD AS TO FATHER GROPPI'S BEHAVIOR AT
THE POINT OF HIS ARREST, EVIDENCE WHICH WOULD SUPPORT A FAIR JURY'S
CONCLUSION EITHER WAY, THAT IS, THAT HE DID RESIST ARREST OR THAT HE
DID NOT RESIST ARREST, WITHIN THE MEANING AND APPLICATION OF THE
WISCONSIN STATUTE.  ON BALANCE, IN THE FACE OF WHAT MAY BE REGARDED AS
A RULING BY THE TRIAL COURT THAT NO SHOWIN, HOWEVER PERSUASIVE, OF
COMMUNITY PREJUDICE AND ITS EFFECT UPON THE JURY ACTUALLY SELECTED
COULD COMMAND A CHANGE OF VENUE IN THIS MISDEMEANOR CASE, I AM CONTENT
TO JOIN IN THE VACATION OF THE JUDGMENT OF CONVICTION AND IN THE REMAND
IN ORDER TO ALLOW THE DEFENDANT TO ATTEMPT TO MAKE HIS PROOF. 

9.  I WOULD STRESS, HOWEVER, MORE THAN BY THE THREE-LINE FINAL
FOOTNOTE WHICH MAY BE LOST TO THE READER WHO IS MORE INTERESTED IN THE
NOTORIETY OF THE CASE THAN IN WHAT WE ARE DOING TODAY BY WAY OF
SPECIFIC RULING, THAT THIS REMAND DOES NOT NECESSARILY MEAN A NEW TRIAL
FOR FATHER GROPPI, AND FREEDOM FROM HIS CONVICTION ON THE CHARGE OF
RESISTING ARREST.  THE DEFENDANT IS TO HAVE HIS OPPORTUNITY TO
DEMONSTRATE PREJUDICE AND THE LIKELIHOOD OF AN UNFAIR TRIAL.  IF HE
FAILS IN THAT QUEST, OR IF HE NOW REFUSED TO UNDERTAKE IT, THE JUDGMENT
OF CONVICTION MAY BE REINSTATED.  IF HE DOES NOT FAIL, THEN OF COURSE
THE CONVICTION FALLS AND THE STATE IS REMITTED TO ITS CHOICE BETWEEN A
NEW TRIAL OR A DISMISSAL OF THE CHARGE. 

10.  FINALLY, I DOUBT VERY MUCH WHETHER THIS RATHER UNIMPORTANT CASE,
BUT AN ADMITTEDLY SENSITIVE ONE BECAUSE OF THE IDENTITY OF THE
DEFENDANT AND THE MEANS HE HAS SELECTED TO MAKE HIS PROTESTS KNOWN, AT
ALL APPROACHES THE CIRCUMSTANCES AND THE OFFENSIVE CHARACTER OF WHAT
THIS COURT CONDEMNED IN SHEPPARD V. MAXWELL, 384 U.S. 333 (1966), IN
RIDEAU V. LOUISIANA, 373 U.S. 723 (1963), AND IN IRVIN V. DOWD, 366
U.S. 717 (1961), CITED IN THE COURT'S OPINION.  NEVERTHELESS,
UNFAIRNESS ANYWHERE, IN SMALL CASES AS WELL AS IN LARGE, IS ABHORRED,
IS TO BE FERRETED OUT, AND IS TO BE ELIMINATED.  DESPITE THE
UNSATISFACTORY RECORD, THIS DEFENDANT MUST HAVE HIS OPPORTUNITY TO
DEMONSTRATE WHAT HE ALLEGES. 

MR. JUSTICE BLACK, DISSENTING. 

I DISSENT FROM THE COURT'S VACATION OF THE JUDGMENT OF CONVICTION. 
I AGREE, OF COURSE, THAT THIS APPELLANT IS ENTITLED TO TRIAL BEFORE AN
IMPARTIAL JURY.  THIS RIGHT IS GUARANTEED BY THE SIXTH AMENDMENT AND
MADE BINDING ON THE STATES BY THE FOURTEENTH.  ANTE, AT 509.  CF.
PARKER V. GLADDEN, 385 U.S. 363 (1966); SEE ALSO ADAMSON V. CALIFORNIA,
332 U.S. 46, 68 (1947) (BLACK, J., DISSENTING). 

AS THE WISCONSIN SUPREME COURT SUGGESTED, THE RIGHT TO TRIAL BEFORE
AN IMPARTIAL JURY CAN BE PROTECTED IN MANY WAYS:  BY GRANTING A
CONTINUANCE UNTIL COMMUNITY PASSIONS SUBSIDE; BY CHALLENGING JURORS FOR
CAUSE AND BY PEREMPTORY CHALLENGES DURING VOIR DIRE PROCEEDINGS.  BUT
IT SIMPLY CANNOT BE SAID THAT THE RIGHT TO TRIAL BY AN IMPARTIAL JURY
MUST NECESSARILY INCLUDE A RIGHT TO CHANGE OF VENUE.  IT MAY OR MAY NOT
BE WISER TO IMPLEMENT THE SIXTH AMENDMENT BY A CHANGE OF VENUE
PROVISION, BUT IN MY VIEW, THE CONSTITUTION DOES NOT REQUIRE IT.  IF
THE USUAL DEVICES FOR PROTECTION OF THE SIXTH AMENDMENT RIGHT TO TRIAL
BY AN IMPARTIAL JURY ARE INSUFFICIENT, THE DEFENDANT CAN ALWAYS BE
GIVEN A NEW TRIAL ON THE GROUND OF JURY PREJUDICE. 

THE COURT SUGGESTS THAT RIDEAU V. LOUISIANA, 373 U.S. 723 (1963),
CONTROLS THE DISPOSITION OF THIS CASE.  BUT THERE WE HELD THAT
PREJUDICIAL PUBLICITY WAS SO EXTENSIVE THAT IT WAS A DENIAL OF DUE
PROCESS TO REFUSE A MOTION FOR CHANGE OF VENUE WHERE THE STATE HAD
PROVIDED FOR VENUE CHANGES AS A METHOD OF ENSURING AN IMPARTIAL JURY. 
SEE LA. REV. STAT. SEC. 15:293 (1950).  HERE WISCONSIN HAS NOT CHOSEN
TO PROVIDE THAT MEANS OF IMPLEMENTING THE SIXTH AMENDMENT RIGHT IN
MISDEMEANOR CASES.  SO LONG AS A DEFENDANT CAN PROTECT HIS SIXTH
AMENDMENT RIGHT BY A MOTION FOR A NEW TRIAL, I SEE NO CONSTITUTIONAL
INFIRMITY IN THE WISCONSIN STATUTE.  NOR DOES IRVIN V. DOWD, 366 U.S.
717 (1961), COMPEL THE MAJORITY'S RESULT.  THERE WE HELD THAT A MOTION
FOR A SECOND CHANGE OF VENUE SHOULD HAVE BEEN GRANTED DESPITE A STATE
STATUTE WHICH SEEMINGLY PERMITTED ONLY ONE CHANGE.  HOWEVER, WE
CAREFULLY POINTED OUT THAT THE INDIANA SUPREME COURT HAD PREVIOUSLY
HELD AS A MATTER OF STATE LAW THAT THE STATUTE'S LITERAL WORDING DID
NOT FORECLOSE A SECOND CHANGE OF VENUE.  366 U.S.,AT 721, CITING GANNON
V. PORTER CIRCUIT COURT, 239 IND. 637, 159 N.E.2D 713 (1959). 

THIS IS NOT A CASE WHERE A STATE HAS MADE IT IMPOSSIBLE FOR A
DEFENDANT TO IMPLEMENT HIS RIGHT TO AN IMPARTIAL JURY TRIAL.  WISCONSIN
LAW PROVIDES FOR VOIR DIRE AND CONTINUANCES, AND THIS APPELLANT
EXERCISED HIS RIGHT TO MAKE PEREMPTORY CHALLENGES TO JURORS.  IN
HOLDING THAT APPELLANT HAD NO CONSTITUTIONAL RIGHT TO A CHANGE OF VENUE
IN A MISDEMEANOR CASE, THE WISCONSIN SUPREME COURT POINTED OUT THAT HE
COULD RAISE THE CLAIM OF DENIAL OF AN IMPARTIAL JURY BY A MOTION FOR A
NEW TRIAL IN ACCORDANCE WITH WISCONSIN PROCEDURE.  41 WIS.2D 312, 321,
164 N.W.2D 266, 270 (1969).  OF COURSE IT IS DIFFICULT, EVEN IN A SMALL
COUNTY, TO SHOW THAT ITS POPULATION IS SO SATURATED WITH PREJUDICE THAT
NO IMPARTIAL JURY CAN BE SELECTED FROM THAT GROUP.  IT IS LIKELY TO BE
ESPECIALLY DIFFICULT IN A COUNTY AS LARGE AS MILWAUKEE, WITH ITS
POPULATION OF MORE THAN ONE MILLION.  HOWEVER DIFFICULT THAT MAY BE,
APPELLANT HAS A RIGHT UNDER WISCONSIN LAW TO BRING FORTH ANY RELEVANT
EVIDENCE TO SHOW THAT THE JURY THAT TRIED HIM WAS NOT IMPARTIAL.  I
WOULD REMAND THIS CASE FOR A HEARING ON A MOTION FOR A NEW TRIAL. 

ELIZABETH B. DUBOIS ARGUED THE CAUSE FOR APPELLANT.  WITH HER ON THE
BRIEFS WERE JACK GREENBERG, MICHAEL MELTSNER, ANTHONY G. ARMSTERDAM,
THOMAS M. JACOBSON, AND ROBERT E. SUTTON. 

SVERRE O. TINGLUM, ASSISTANT ATTORNEY GENERAL OF WISCONSIN, ARGUED
THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WERE ROBERT W. WARREN,
ATTORNEY GENERAL, AND ROY G. MITA, ASSISTANT ATTORNEY GENERAL. 
..END :




















DONALDSON V. UNITED STATES, 400 U.S. 517 


       DONALDSON, FKA SWEET V. UNITED STATES ET AL.

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 65.  ARGUED NOVEMBER 19, 1970-- DECIDED JANUARY 25,

           1971 


IN FURTHERANCE OF AN INVESTIGATION OF PETITIONER'S TAX RETURNS,
RESPONDENT GRANDY, AN INTERNAL REVENUE SERVICE (IRS) SPECIAL AGENT,
ISSUED SUMMONSES TO PETITIONER'S PUTATIVE FORMER EMPLOYER (ACME) AND
ITS ACCOUNTANT FOR THE PRODUCTION OF ACME'S RECORDS OF PETITIONER'S
EMPLOYMENT AND COMPENSATION DURING THE YBARS UNDER INVESTIGATION.  THE
SUMMONSES WERE ISSUED UNDER SEC. 7602 OF THE INTERNAL REVENUE CODE OF
1954, WHICH AUTHORIZES IRS EXAMINATIONS OF RECORDS AND WITNESSES FOR
THE PURPOSE OF DETERMINING TAX LIABILITY.  THEREAFTER RESPONDENTS,
PURSUANT TO 26 U.S.C. 7402(B) AND 7604(A), FILED IN THE DISTRICT COURT
PETITIONS FOR ENFORCEMENT OF THE SUMMONSES.  PETITIONER FILED MOTIONS
TO INTERVENE IN THE ENFORCEMENT PROCEEDING, RELYING ON FED. RULE CIV.
PROC. 24(A)(2), WHICH, INTER ALIA, PROVIDES FOR INTERVENTION IN AN
ACTION "WHEN THE APPLICANT CLAIMS AN INTEREST RELATING TO THE PROPERTY
OR TRANSACTION WHICH IS THE SUBJECT OF THE ACTION.  . . . "  PETITIONER
ALLEGED THAT THE IRS AGENTS WERE INVESTIGATING HIM SOLELY TO OBTAIN
EVIDENCE CONCERNING CRIMINAL VIOLATIONS OF THE TAX LAWS AND THAT
CONSEQUENTLY THE SUMMONSES WERE NOT ISSUED FOR ANY PURPOSE WITHIN THE
SCOPE OF SEC. 7602 AND COULD NOT BE ENFORCED.  THE COURT DENIED
PETITIONER'S MOTIONS AND ORDERED THAT THE RECORDS BE PRODUCED.  THE
COURT OF APPEALS AFFIRMED.  HELD: 

1.  PETITIONER HAS NO PROPRIETARY INTEREST IN THE ACME RECORDS (HIS
SOLE INTEREST THEREIN BEING THAT THEY PRESUMABLY CONTAIN DETAILS OF
PAYMENTS TO HIM), AND SINCE HE HAS NO OTHER PROTECTABLE INTEREST BY WAY
OF PRIVILEGE OR OTHERWISE, HE HAS NO ABSOLUTE RIGHT UNDER FED. RULE
CIV. PROC 24(A)(2) TO INTERVENE IN THE IRS SUMMONS ENFORCEMENT
PROCEEDING.  PP. 527-531. 

2.  UNDER SEC. 7602 AN IRS SUMMONS MAY BE USED IN CONNECTION WITH A
TAX INVESTIGATION IF (AS IN THIS CASE) IT IS ISSUED IN GOOD FAITH AND
PRIOR TO A RECOMMENDATION FOR PROSECUTION.  PP. 531-536. 

418 F.2D 1213, AFFIRMED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BLACK, HARLAN, STEWART, WHITE, AND MARSHALL, JJ., JOINED. 
DOUGLAS, J., FILED A CONCURRING OPINION, POST, P. 536.  BRENNAN, J.,
FILED A STATEMENT CONCURRING IN THE RESULT, POST, P. 536. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

WE ARE HERE CONCERNED WITH PROBLEMS ARISING IN CONNECTION WITH THE
ISSUANCE AND JUDICIAL ENFORCEMENT OF AN INTERNAL REVENUE SUMMONS
DIRECTED TO SOMEONE OTHER THAN THE INDIVIDUAL TAXPAYER. 

KEVIN L. DONALDSON, FORMERLY KNOWN AS MERTON H. SWEET, APPARENTLY
WAS ONCE EMPLOYED BY, OR WAS A PERFORMER FOR, ACME CIRCUS OPERATING
CO., INC., DBA CLYDE BEATTY-COLE BROS. CIRCUS.  /1/  MR. DONALDSON
(SOMETIMES REFERRED TO HEREIN AS THE "TAXPAYER") IS AN INDIVIDUAL WHOSE
INCOME TAX RETURNS FOR THE CALENDAR YEARS 1964-1967, INCLUSIVE, ARE
UNDER INVESTIGATION BY THE INTERNAL REVENUE SERVICE. 

ON SEPTEMBER 12 AND 13, 1968, SPECIAL AGENT JOHN P. GRADY,
PURPORTEDLY ACTING UNDER THE AUTHORITY OF SEC. 7602, /2/  ISSUED AND
SERVED SEPARATE SUMMONSES TO ACME AND TO JOSEPH J. MERCURIO, ACME'S
ACCOUNTANT, COMMANDING THEIR APPEARANCE BEFORE GRADY ON SEPTEMBER 23
AND 24 "TO GIVE TESTIMONY RELATING TO THE TAX LIABILITY" OF DONALDSON
AND TO PRODUCE CERTAIN OF ACME'S RECORDS HAVING TO DO WITH THE
TAXPAYER.  THE RECORDS SPECIFIED WERE "APPLICATIONS FOR EMPLOYMENT
AND/OR ANY OTHER RECORDS CONTAINING BACKGROUND DATA INCLUDING SOCIAL
SECURITY NUMBER FURNISHED YOU BY" THE TAXPAYER; ALL CONTRACTS BETWEEN
THE TAXPAYER AND ACME AND BETWEEN HIM "AND THE VARIOUS ORGANIZATIONS
SPONSORING PERFORMANCES OF THE CIRCUS . . . DURING . . . 1964 THROUGH
1967, INCLUSIVE"; FORMS 1099 AND W-2 ISSUED TO THE TAXPAYER; A SCHEDULE
OF THE PAYMENTS MADE TO THE TAXPAYER BY THE SPONSORING ORGANIZATIONS;
CHECKS AND VOUCHERS RELATING TO PAYMENTS TO THE TAXPAYER BY ACME;
EXPENSE VOUCHERS SUBMITTED BY THE TAXPAYER; RECORDS CONTAINING
INFORMATION AS TO THE IDENTIFICATION OF EACH SPONSORING ORGANIZATION;
AND "CORRESPONDENCE OR OTHER RECORDS RELATING TO THE FOREGOING OR TO
ANY OTHER FINANCIAL TRANSACTIONS BETWEEN ACME" AND THE TAXPAYER DURING
1964-1967, INCLUSIVE. 

SHORTLY PRIOR TO THE ISSUANCE OF THESE SUMMONSES, THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, UPON PETITIONS FILED
BY THE TAXPAYER, ISSUED TEMPORARY RESTRAINING ORDERS, AND THEN, AS TO
MERCURIO, A PRELIMINARY INJUNCTION, RESTRAINING MERCURIO AND ACME FROM
COMPLYING WITH GRADY'S REQUESTS OR WITH ANY SUBSEQUENT SOMMONS
DIRECTING THE PRODUCTION OF THE RECORDS "UNTIL SUCH TIME AS AN ORDER OF
A COURT OF COMPETENT JURISDICTION HAS BEEN ISSUED REQUIRING SUCH
COMPLIANCE." 

ON NOVEMBER 25, 1968, THE UNITED STATES AND AGENT GRADY, PURSUANT TO
26 U.S.C. 7402(B) AND 7604(A), /3/  FILED PETITIONS WITH THE SAME
FEDERAL COURT FOR THE JUDICIAL ENFORCEMENT OF THE SUMMONSES DIRECTED TO
MERCURIO AND TO ACME.  THE PETITIONERS WERE SUPPORTED BY AFFIDAVITS OF
GRADY AND OF SPECIAL AGENT BRUCE B. MILLER.  /4/  EACH AFFIDAVIT WAS TO
THE EFFECT THAT THE AFFIANT WAS CONDUCTING OR ASSISTING IN THE CONDUCT
OF "AN INVESTIGATION FOR THE PURPOSE OF ASCERTAINING THE CORRECT INCOME
TAX LIABILITY" OF THE TAXPAYER FOR THE YEARS 1964-1967, INCLUSIVE, AND
THAT IT WAS "NECESSARY" TO EXAMINE THE RECORDS AND TO TAKE THE
TESTIMONY REQUESTED IN ORDER TO ASCERTAIN THE TAXPAYER'S CORRECT INCOME
TAX LIABILITY FOR THOSE YEARS. 

IN RESPONSE TO THE ENSUING ORDERS TO SHOW CAUSE, THE TAXPAYER,
PURPORTEDLY PURSUANT TO FED. RULE CIV. PROC. 24(A)(2), FILED MOTIONS TO
INTERVENE IN THE ENFORCEMENT PROCEEDINGS.  HE ACCOMPANIED EACH MOTION
WITH A PROPOSED ANSWER.  IN THE ANSWER HE ALLEGED THAT SPECIAL AGENTS
GRADY AND MILLER WERE GUILTY OF BAD FAITH IN ASSERTING THAT THEY WERE
CONDUCTING AN INVESTIGATION TO ASCERTAIN THE TAXPAYER'S CORRECT INCOME
TAX LIABILITY FOR THE YEARS IN QUESTION; THAT THE TWO AGENTS WERE
ASSIGNED TO INTELLIGENCE DIVISIONS OF THE SERVICE; THAT THEY WERE
INVESTIGATING THE TAXPAYER "FOR THE EXPRESS AND SOLE PURPOSE OF
OBTAINING EVIDENCE CONCERNING ANY VIOLATIONS OF THE CRIMINAL STATUTE
APPLICABLE TO THE TAX LAWS OF THE UNITED STATES"; AND THAT, AS A
CONSEQUENCE, THE SUMMONSES WERE NOT ISSUED FOR ANY PURPOSE WITHIN THE
SCOPE OF SEC. 7602.  IT WAS ALSO ASSERTED, ALTHOUGH APPARENTLY IT IS
NOT NOW URGED HERE, THAT THE REQUESTS IN THE SUMMONSES WERE OVERLY
BROAD AND "WITHOUT A SHOWING OF PARTICULARIZED RELEVANCY,"  AND THAT
THE TAXPAYER, UNDER THE CONSTITUTION, "IS ENTITLED TO BE SECURE IN HIS
PERSONAL PAPERS AND PERSONAL EFFECTS FROM UNREASONABLE SEARCHES AND
SEIZURES." 

MERCURIO AND ACME, ON THEIR PART, ALSO FILED RESPONSES TO THE ORDERS
TO SHOW CAUSE.  EACH ALLEGED THAT "WERE IT NOT FOR" THE PRELIMINARY
INJUNCTION OR TEMPORARY RESTRAINING ORDER THERETOFORE ENTERED, "THE
RESPONDENT WOULD HAVE COMPLIED WITH THE SUMMONS."  /5/ 

THE ORDERS TO SHOW CAUSE WERE RETURNABLE BEFORE JUDGE LIEB.  AFTER
THE SUBMISSION OF MEMORANDA AND ARGUMENT, BUT WITHOUT THE INTRODUCTION
OF TESTIMONY, THE COURT DENIED THE MOTIONS TO INTERVENE AND ORDERED
MERCURIO AND ACME TO APPEAR BEFORE GRADY AND TO PRODUCE THE RECORDS
REQUESTED.  THE COURT THEN CONSOLIDATED THE TWO CASES FOR PURPOSES OF
APPEAL AND GRANTED STAYS PENDING APPEAL.  THE FIFTH CIRCUIT AFFIRMED. 
UNITED STATES V. MERCURIO, 418 F.2D 1213 (CA5 1969). 

CERTIORARI WAS GRANTED, 397 U.S. 933 (1970), BECAUSE THE CASE
APPEARED TO RAISE IMPORTANT QUESTIONS RELATING TO THE ADMINISTRATION
AND ENFORCEMENT OF THE REVENUE LAWS, AND BECAUSE THE COURTS OF APPEALS
HAVE DIFFERED IN THEIR READING OF REISMAN V. CAPLIN, 375 U.S. 440
(1964).  /6/

        I 

DESPITE THE CONTRARY INTIMATIONS IN THE MOTIONS TO INTERVENE, THERE
IS NOW NO CONSTITUTIONAL ISSUE IN THE CASE.  THE TAXPAYER ON ORAL
ARGUMENT SO CONCEDED.  /7/  IN ANY EVENT, THAT QUESTION APPEARS TO HAVE
BEEN SETTLED LONG AGO WHEN THE COURT UPHELD, AGAINST FOURTH AMENDMENT
CHALLENGE, AN INTERNAL REVENUE SUMMONS ISSUED UNDER THE REVENUE ACT OF
1921 AND DIRECTED TO A THIRD-PARTY BANK.  FIRST NAT. BANK V. UNITED
STATES, 267 U.S. 576 (1925), AFF'G 295 F. 142, 143 (SD ALA. 1924).  SEE
ALSO UNITED STATES V. FIRST.  NAT.  BANK, 274 F.SUPP.  283, 284 (ED KY.
1967), AFF'D SUB NOM. JUSTICE V. UNITED STATES, 390 U.S. 199 (1968),
AND UNITED STATES V. SHLOM, 420 F.2D 263, 266 (CA2 1969), CERT. DENIED,
397 U.S. 1974 (1970). 

        II 

WE EMPHASIZE INITIALLY, AS DID JUDGE TUTTLE IN HIS OPINION FOR THE
COURT OF APPEALS, 418 F.2D,AT 1214, THAT WHAT IS SOUGHT HERE BY THE
INTERNAL REVENUE SERVICE FROM MERCURIO AND FROM ACME IS THE PRODUCTION
OF ACME'S RECORDS AND NOT THE RECORDS OF THE TAXPAYER.  FURTHER, AS
JUDGE TUTTLE ALSO EMPHASIZED, THIS IS NOT A CASE WHERE A SUMMONS HAS
BEEN ISSUED TO THE TAXPAYER HIMSELF SEEKING ACCESS TO HIS BOOKS AND
INFORMATION FROM HIS MOUTH.  NEITHER IS IT A CASE WHERE THE SUMMONS IS
DIRECTED AT THE TAXPAYER'S RECORDS IN THE HANDS OF HIS ATTORNEY OR HIS
ACCOUNTANT, WITH THE ATTENDANT QUESTIONS OF PRIVILEGE, OR EVEN IN THE
HANDS OF ANYONE WITH WHOM THE TAXPAYER HAS A CONFIDENTIAL RELATIONSHIP
OF ANY KIND.  EACH OF THE SUMMONSES HERE, WE REPEAT, WAS DIRECTED TO A
THIRD PERSON WITH RESPECT TO WHOM NO ESTABLISHED LEGAL PRIVILEGE, SUCH
AS THAT OF ATTORNEY AND CLIENT, EXISTS, AND HAD TO DO WITH RECORDS IN
WHICH THE TAXPAYER HAS NO PROPRIETARY INTEREST OF ANY KIND, WHICH ARE
OWNED BY THE THIRD PERSON, WHICH ARE IN HIS HANDS, AND WHICH RELATE TO
THE THIRD PERSON'S BUSINESS TRANSACTIONS WITH THE TAXPAYER. 

        III 

MR. JUSTICE CLARK, IN PART II OF HIS OPINION FOR A UNANIMOUS COURT
IN REISMAN, 375 U.S.,AT 445-446, REVIEWED THE STATUTORY STRUCTURE THAT
CONGRESS HAS PROVIDED FOR THE ISSUANCE AND ENFORCEMENT OF AN INTERNAL
REVENUE SUMMONS.  IT WILL PERHAPS BE REWARDING FOR US TO OUTLINE THAT
STRUCTURE ONCE AGAIN. 

OR HIS DELEGATE "TO THE EXTENT HE DEEMS IT PRACTICABLE" TO CAUSE
TREASURY DEPARTMENT OFFICERS OR EMPLOYEES "TO PROCEED . . . AND INQUIRE
AFTER AND CONCERNING" ALL PERSONS "WHO MAY BE LIABLE TO PAY ANY
INTERNAL REVENUE TAX."  THE SECTION THUS FLATLY IMPOSES UPON THE
SECRETARY THE DUTY TO CANVASS AND TO INQUIRE.  THIS IS AN OLD STATUTE. 
IT HAS ROOTS IN THE FIRST OF THE MODERN GENERAL INCOME TAX ACTS,
NAMELY, THE TARIFF ACT OF OCTOBER 3, 1913, SEC. II, PARA., 38 STAT.
178, AND PRIOR TO THAT, IN SEC. 3172, AS AMENDED OF THE REVISED
STATUTES OF 1874. 

PURPOSE OF ASCERTAINING THE CORRECTNESS OF ANY RETURN . . . DETERMINING
THE LIABILITY OF ANY PERSON FOR ANY INTERNAL REVENUE TAX . . . OR
COLLECTING ANY SUCH LIABILITY . . . (TO SUMMON THE PERSON LIABLE FOR
TAX . . . OR ANY PERSON HAVING POSSESSION, CUSTODY, OR CARE OF BOOKS OF
ACCOUNT CONTAINING ENTRIES RELATING TO THE BUSINESS OF THE PERSON
LIABLE FOR TAX . . . OR ANY OTHER PERSON THE SECRETARY OR HIS DELEGATE
MAY DEEM PROPER, TO APPEAR . . . AND TO PRODUCE SUCH BOOKS, PAPERS,
RECORDS, OR OTHER DATA, AND TO GIVE SUCH TESTIMONY, UNDER OATH, AS MAY
BE RELEVANT OR MATERIAL TO SUCH INQUIRY . . . . " 

PROVISION FOR PERSONAL ENFORCEMENT OF THE SUMMONS BY THE SECRETARY OR
HIS DELEGATE.  IF ENFORCEMENT IS DESIRED, HE MUST PROCEED UNDER SEC.
7402(B), OR ITS SISTER AND ESSENTIALLY IDENTICAL STATUTE, SEC. 7604(A),
SEE N. 3, SUPRA, EACH OF WHICH GRANTS THE DISTRICT COURTS OF THE UNITED
STATES JURISDICTION "BY APPROPRIATE PROCESS TO COMPEL SUCH ATTENDANCE,
TESTIMONY, OR PRODUCTION." 

THEN, AS MR. JUSTICE CLARK POINTED OUT, 375 U.S., AT 446: 

     "ANY ENFORCEMENT ACTION UNDER THIS SECTION (SEC. 7402(B))
WOULD

  BE AN ADVERSARY PROCEEDING AFFORDING A JUDICIAL DETERMINATION OF

  THE CHALLENGES TO THE SUMMONS AND GIVING COMPLETE PROTECTION TO

  THE WITNESS.  IN SUCH A PROCEEDING ONLY A REFUSAL TO COMPLY WITH

AN ORDER OF THE DISTRICT JUDGE SUBJECTS THE WITNESS TO CONTEMPT

  PROCEEDINGS." 

FINALLY, SEC. 7605(A) PROVIDES THAT THE TIME AND PLACE OF THE
EXAMINATION "SHALL BE SUCH . . . AS MAY BE FIXED BY THE SECRETARY OR
HIS DELEGATE AND AS ARE REASONABLE UNDER THE CIRCUMSTANCES" AND, WITH
RESPECT TO A SEC. 7602 SUMMONS, THAT "THE DATE FIXED FOR APPEARANCE . .
. SHALL NOT BE LESS THAN 10 DAYS FROM THE DATE OF THE SUMMONS." 

THUS THE SUMMONS IS ADMINISTRATIVELY ISSUED BUT ITS ENFORCEMENT IS
ONLY BY FEDERAL COURT AUTHORITY IN "AN ADVERSARY PROCEEDING" AFFORDING
THE OPPORTUNITY FOR CHALLENGE AND "COMPLETE PROTECTION TO THE
WITNESS." 

        IV 

REISMAN WAS AN ACTION, INSTITUTED BY ATTORNEYS FOR A HUSBAND AND
WIFE, FOR DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE COMMISSIONER OF
INTERNAL REVENUE AND AN ACCOUNTING FIRM WHICH HAD BEEN WORKING ON THE
TAXPAYER-COUPLE'S FINANCIAL RECORDS AT THEIR REQUEST.  THE COMMISSIONER
HAD ISSUED SUMMONSES TO THE ACCOUNTING FIRM FOR THE PRODUCTION OF WORK
PAPERS AND CORRESPONDENCE.  IT WAS CONTENDED THAT THE ENFORCED
PRODUCTION OF THE PAPERS WAS AN UNLAWFUL APPROPRIATION OF THE
ATTORNEYS' WORK PRODUCT AND TRIAL PREPARATION.  THE COURT CONCLUDED
THAT THE PETITIONER-ATTORNEYS POSSESSED AN ADEQUATE REMEDY AT LAW AND
THAT THE COMPLAINT, THEREFORE, WAS SUBJECT TO DISMISSAL.  IN REACHING
THIS CONCLUSION, THE COURT EMPHASIZED THEEMPLOYMENT OF THE ACCOUNTING
FIRM BY THE ATTORNEYS "TO ASSIST THEM IN CONNECTION WITH CERTAIN CIVIL
AND CRIMINAL TAX PROCEEDINGS ARISING FROM THE ALLEGED TAX LIABILITY OF
THE" TAXPAYERS: THAT THE PRODUCTS OF THE JOINT WORK OF THE ACCOUNTANTS
AND THE ATTORNEYS "WERE KEPT SEPARATE IN THE ACCOUNTING FIRM'S FILES
AND LABELED AS THE PROPERTY OF" THE ATTORNEYS; THAT AT THE TIME OF THE
SERVICE OF THE SUMMONSES "THERE WERE FOUR CIVIL TAX CASES PENDING IN
THE TAX COURT CONTESTING ALLEGED DEFICIENCIES" AND, IN ADDITION, "A
CRIMINAL INVESTIGATION OF MR. BROMLEY ON THE TAX MATTERS WAS IN
PROGRESS." 

THE COURT NOTED THAT THE PETITIONERS MADE NO CLAIM THAT SEC. 7602
"SUFFERS ANY CONSTITUTIONAL INFIRMITY ON ITS FACE" AND THAT THE
GOVERNMENT CONCEDED THAT "A WITNESS OR ANY INTERESTED PARTY MAY ATTACK
THE SUMMONS BEFORE THE HEARING OFFICER."  THE COURT AGREED.  IT WENT ON
TO OBSERVE THAT "IN TAX ENFORCEMENT OR RIGHT TO LEVY ANY SANCTIONS";
AND THAT "IN ANY OF THESE PROCEDURES BEFORE EITHER THE DISTRICT JUDGE
OR UNITED STATES COMMISSIONER, THE WITNESS MAY CHALLENGE THE SUMMONS ON
ANY APPROPRIATE GROUND."  AMONG SUCH GROUNDS THE COURT INCLUDED "THE
DEFENSES THAT THE MATERIAL IS SOUGHT FOR THE IMPROPER PURPOSE OF
OBTAINING EVIDENCE FOR USE IN A CRIMINAL PROSECUTION" OR THE DEFENSE
THAT IT IS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE.  IT WENT ON TO
SAY, "IN ADDITION, THIRD PARTIES MIGHT INTERVENE TO PROTECT THEIR
INTERESTS, OR IN THE EVENT THE TAXPAYER IS NOT A PARTY TO THE SUMMONS
BEFORE THE HEARING OFFICER, HE, TOO, MAY INTERVENE" AND THAT THIS
"WOULD BE TRUE WHETHER THE CONTEMPT BE OF A CIVIL OF CRIMINAL NATURE." 
FINALLY, IT SAID THAT THERE WOULD NO DIFFERENCE SHOULD THE WITNESS
INDICATE "THAT HE WOULD VOLUNTARILY TURN THE PAPERS OVER." 

TEN MONTHS LATER THE COURT DECIDED UNITED STATES V. POWELL, 379 U.S.
48 (1964), AND ITS COMPANION CASE, RYAN V. UNITED STATES, 379 U.S. 61
(1964).  THESE CONCERNED, RESPECTIVELY, INTERNAL REVENUE SUMMONSES
ISSUED TO THE PRESIDENT OF A CORPORATE TAXPAYER AND TO AN INDIVIDUAL
TAXPAYER WITH RESPECT TO RE-EXAMINATIONS AND TAX YEARS FOR WHICH
ASSESSMENTS WOULD BE BARRED EXCEPT FOR FRAUD.  THE COURT WAS PRIMARILY
CONCERNED WITH THE STANDARDS THE INTERNAL REVENUE SERVICE MUST MEET IN
ORDER TO OBTAIN JUDICIAL ENFORCEMENT OF ITS ORDERS.  IT HELD THAT
PROBABLE CAUSE TO SUSPECT FRAUD WAS NOT REQUIRED UNDER THE STATUTES AND
THAT THE COMMISSIONER NEED SHOW ONLY "THAT THE INVESTIGATION WILL BE
CONDUCTED PURSUANT TO A LEGITIMATE PURPOSE, THAT THE INQUIRY MAY BE
RELEVANT TO THE PURPOSE, THAT THE INFORMATION SOUGHT IS NOT ALREADY
WITHIN THE COMMISSIONER'S POSSESSION, AND THAT THE ADMINISTRATIVE STEPS
REQUIRED BY THE CODE HAVE BEEN FOLLOWED.  . . . "  AGAIN IT WAS
EMPHASIZED THAT AT THE ADVERSARY HEARING TO WHICH THE TAXPAYER IS
ENTITLED BEFORE ENFORCEMENT IS ORDERED, HE MAY CHALLENGE THE SUMMONS ON
ANY APPROPRIATE GROUND.  IT WAS ALSO STATED THAT THE BURDEN OF SHOWING
AN ABUSE OF THE COURT'S PROCESS IS ON THE TAXPAYER. 

        V 

WITH ALL THIS AS BACKGROUND, OUR CENTRAL INQUIRY HERE IS AS TO
DONALDSON'S RIGHT TO INTERVENE IN THE SUMMONS PROCEEDINGS.  DONALDSON
HAD OBTAINED PRELIMINARY RELIEF (IN THE FORM OF A TEMPORARY RESTRAINING
ORDER AND, AS TO MERCURIO, IN THE FORM OF THE SUCCEEDING PRELIMINARY
INJUNCTION AS WELL) IN HIS WELF-INSTITUTED ACTIONS TO RESTRAIN
MERCURIO'S AND ACME'S VOLUNTARY COMPLIANCE WITH GRADY'S REQUEST.  BUT
WHEN THE ENFORCEMENT PROCEEDINGS WERE INSTITUTED BY THE UNITED STATES
AND GRADY, THE TAXPAYER WAS NOT SUCCESSFUL EITHER AS TO INTERVENTION OR
AS TO RELIEF BY WAY OF RESTRAINT. 

IN HIS MOTION TO INTERVENE, AND HERE (BUT APPARENTLY NOT AT ORAL
ARGUMENT IN THE COURT OF APPEALS, SEE 418 F.2D,AT 1215), DONALDSON
WOULD TAKE COMFORT FROM THE PROVISIONS OF FED. RULE CIV. PROC.
24(A)(2).  /8/  HE ASSERTS THAT, WITHIN THE RULE'S LITERAL LANGUAGE, HE
POSSESSSES "AN INTEREST RELATING TO THE PROPERTY OR TRANSACTION WHICH
IS THE SUBJECT OF THE (ENFORCEMENT) ACTION AND HE IS SO SITUATED THAT
THE DISPOSITION OF THE ACTION MAY AS A PRACTICAL MATTER IMPAIR OR
IMPEDE HIS ABILITY TO PROTECT THAT INTEREST," AND THAT HIS INTEREST IS
NOT ADEQUATELY REPRESENTED BY THE PARTIES (MERCURIO AND ACME) TO THE
ENFORCEMENT PROCEEDINGS.  HE WOULD BUTTRESS THIS APPROACH BY RELIANCE
UPON THE REFERENCE TO BOTH SEC. 7604(A) AND THE CIVIL RULES IN N. 18 IN
POWELL, 379 U.S.,AT 58, /9/  AND BY RELIANCE UPON LANGUAGE APPEARING IN
REISMAN, 375 U.S.,AT 445.  /10/ 

IN OUR VIEW, HOWEVER, THE TAXPAYER'S ARGUMENT GOES TOO FAR IN ITS
READING OF RULE 24(A)(2) AND OF THE QUOTATIONS FROM POWELL AND FROM
REISMAN.  THE CIVIL RULES, OF COURSE, DO HAVE AN APPLICATION TO A
SUMMONS PROCEEDING.  RULE 81(A)(3) EXPRESSLY SO PROVIDES.  /11/  BUT
THE CIVIL RULES ARE NOT INFLEXIBLE IN THIS APPLICATION.  RULE 81(A)(3)
GOES ON SPECIFICALLY TO RECOGNIZE THAT A DISTRICT COURT, BY LOCAL RULE
OR BY ORDER, MAY LIMIT THE APPLICATION OF THE RULES IN A SUMMONS
PROCEEDING.  SEE 7 J. MOORE, FEDERAL PRACTICE, PARA. 81.00(1), P. 442
(2D ED. 1970).  THIS FEATURE WAS RECOGNIZED AS PURPOSEFUL BY THE
ADVISORY COMMITTEE WHEN THE PERTINENT LANGUAGE WAS ADDED TO RULE
81(A)(3) IN 1946.  ID.,AT PARA. 81.01(6), P. 4413 (2D ED. 1970).  THE
POST-POWELL CASES, TOO, ARE CLEARLY AND CONSISTENTLY TO THE EFFECT THAT
THE FOOTNOTE IN POWELL WAS NOT INTENDED TO IMPAIR A SUMMARY ENFORCEMENT
PROCEEDING SO LONG AS THE RIGHTS OF THE PARTY SUMMONED ARE PROTECTED
AND AN ADVERSARY HEARING, IF REQUESTED, IS MADE AVAILABLE.  UNITED
STATES V. GAJEWSKI, 419 F.2D 1088, 1090-1092 (CAS 1969), CERT. DENIED,
397 U.S. 1040 (1970); VENN V. UNITED STATES, 400 F.2D 207, 212 N. 12
(CA5 1968); MCGARRY'S, INC. V. ROSE, 344 F.2D 416, 418 (CA1 1965).  WE
AGREE WITH THAT CONCLUSION. 

SIMILARLY, THE REISMAN LANGUAGE SET FORTH IN N. 10, SUPRA, DOES NOT
GUARANTEE INTERVENTION FOR THE TAXPAYER.  CERTAINLY IT RECITES THAT THE
PROPOSBD WITNESS "OR ANY INTERESTED PARTY" MAY ATTACK THE SUMMONS
BEFORE THE HEARING OFFICER, AS WELL AS BEFORE THE DISTRICT COURT IN ANY
ENSUING ENFORCEMENT PROCEEDING, AND CERTAINLY IT RECITES THAT THE PARTY
SUMMONED AND ONE "AFFECTED BY A DISCLOSURE MAY APPEAR OR INTERVENE"
BEFORE THE COURT.  BUT THIS LANGUAGE, AS WELL AS SUBSEQUENT COMMENTS IN
REISMAN, /12/  IS PERMISSIVE ONLY AND IS NOT MANDATORY.  THE LANGUAGE
RECOGNIZES THAT THE DISTRICT COURT, UPON THE CUSTOMARY SHOWING, MAY
ALLOW THE TAXPAYER TO INTERVENE.  TWO INSTANCES WHERE INTERVENTION IS
APPROPRIATE WERE SPECIFIED, NAMELY, WHERE "THE MATERIAL IS SOUGHT FOR
THE IMPROPER PRUPOSE OF OBTAINING EVIDENCE FOR USE IN A CRIMINAL
PROSECUTION" OR WHERE "IT IS PROTECTED BY THE ATTORNEY-CLIENT
PRIVILEGE."  THUS, THE COURT RECOGNIZED THAT INTERVENTION BY A TAXPAYER
IN AN ENFORCEMENT PROCEEDING MIGHT WELL BE ALLOWED WHEN THE
CIRCUMSTANCES ARE PROPER.  BUT THE COURT DID NOT THERE PRONOUNCE, EVEN
WHEN CONFRONTED WITH A SITUATION CONCERNING AN ATTORNEY'S WORK PRODUCT,
THAT THE TAXPAYER POSSESSES AN ABSOLUTE RIGHT TO INTERVENE IN ANY
INTERNAL REVENUE SUMMONS PROCEEDING.  THE USUAL PROCESS OF BALANCING
OPPOSING EQUITIES IS CALLED FOR. 

WE, THUS, ARE NOT IN AGREEMENT WITH THE HOLDINGS OR IMPLICATIONS IN
UNITED STATES V. BENFORD, 406 F.2D 1192, 1194 (CA7 1969); UNITED STATES
V. BANK OF COMMERCE, 405 F.2D 931 (CA3 1969); AND JUSTICE V. UNITED
STATES, 365 F.2D 312, 314 (CA6 1966), TO THE EFFECT THAT, UNDER
REISMAN, A TAXPAYER MAY INTERVENE AS OF RIGHT SIMPLY BECAUSE IT IS HIS
TAX LIABILITY THAT IS THE SUBJECT OF THE SUMMONS.  INSTEAD, WE AGREE
WITH THE OPPOSING CONCLUSION REACHED BY THE FIFTH CIRCUIT HERE, 418
F.2D,AT 1218, AND IN IN RE COLE, 342 F.2D 5, 7-8(CA2), CERT. DENIED,
381 U.S. 950 (1965), AND O'DONNELL V. SULLIVAN, 364 F.2D 43, 44(CA1),
CERT. DENIED, 385 U.S. 969 (1966). 

        VI 

WE TURN, THEN, TO DONALDSON'S PARTICULAR SITUATION.  THE MATERIAL
SOUGHT, AS HAS BEEN NOTED, CONSISTS ONLY OF ACME'S ROUTINE BUSINESS
RECORDS IN WHICH THE TAXPAYER HAS NO PROPRIETARY INTEREST OF ANY KIND,
WHICH ARE NOT THE WORK PRODUCT OF HIS ATTORNEY OR ACCOUNTANT, AND WHICH
ENJOY NO ESTABLISHED ATTORNEY-CLIENT OR OTHER PRIVILEGE.  DONALDSON'S
ONLY INTEREST-- AND OF COURSE IT LOOMS LARGE IN HIS EYES-- LIES IN THE
FACT THAT THOSE RECORDS PRESUMABLY CONTAIN DETAILS OF ACME-TO-DONALDSON
PAYMENTS POSSESSING SIGNIFICANCE FOR FEDERAL INCOME TAX PURPOSES. 

THIS ASSERTED INTEREST, HOWEVER, IS NOTHING MORE THAN A DESIRE BY
DONALDSON TO COUNTER AND OVERCOME MERCURIO'S AND ACME'S WILLINGNESS,
UNDER SUMMONS, TO COMPLY AND TO PRODUCE RECORDS. 

THE NATURE OF THE "INTEREST" URGED BY THE TAXPAYER IS APPARENT FROM
THE FACT THAT THE MATERIAL IN QUESTION (ONCE WE ASSUME ITS RELEVANCE)
WOULD NOT BE SUBJECT TO SUPPRESSION IF THE GOVERNMENT OBTAINED IT BY
OTHER ROUTINE MEANS, SUCH AS BY ACME'S INDEPENDENT AND VOLUNTARY
DISCLOSURE PRIOR TO SUMMONS, OR BY WAY OF IDENTIFIABLE DEDUCTIONS IN
ACME'S OWN INCOME TAX RETURNS, OR THROUGH MERCURIO'S APPEARANCE AS A
TRIAL WITNESS, OR BY SUBPOENA OF THE RECORDS FOR TRIAL.  THIS INTEREST
CANNOT BE THE KIND CONTEMPLATED BY RULE 24(A)(2) WHEN IT SPEAKS IN
GENERAL TERMS OF "AN INTEREST RELATING TO THE PROPERTY OR TRANSACTION
WHICH IS THE SUBJECT OF THE ACTION."  WHAT IS OBVIOUSLY MEANT THERE IS
A SIGNIFICANTLY PROTECTABLE INTEREST.  AND THE TAXPAYER, TO THE EXTENT
THAT HE HAS SUCH A PROTECTABLE INTEREST, AS, FOR EXAMPLE, BY WAY OF
PRIVILEGE, OR TO THE EXTENT HE MAY CLAIM ABUSE OF PROCESS, MAY ALWAYS
ASSERT THAT INTEREST OR THAT CLAIM IN DUE COURSE AT ITS PROPER PLACE IN
ANY SUBSEQUENT TRIAL.  CF. UNITED STATES V. BLUE, 384 U.S. 251 (1966). 

WE THEREFORE HOLD THAT THE TAXPAYER'S INTEREST IS NOT ENOUGH AND IS
NOT OF SUFFICIENT MAGNITUDE FOR US TO CONCLUDE THAT HE IS TO BE ALLOWED
TO INTERVENE.  WERE WE TO HOLD OTHERWISE, AS HE WOULD HAVE US DO, WE
WOULD UNWARRANTEDLY CAST DOUBT UPON AND STULTIFY THE SERVICE'S EVERY
INVESTIGATORY MOVE. 

        VII 

THIS CONCLUSION COULD DISPOSE OF THE CASE, FOR OUR MAIN CONCERN HERE
IS WITH THE TAXPAYER'S ASSERTED RIGHT TO INTERVENE IN THE PARTICULAR
ENFORCEMENT PROCEEDINGS.  DONALDSON, HOWEVER, STRENUOUSLY URGES, IN
ADDITION, THAT AN INTERNAL REVENUE SUMMONS PROCEEDING MAY NOT BE
UTILIZED AT ALL IN AID OF AN INVESTIGATION THAT HAS THE POTENTIALITY OF
RESULTING IN A RECOMMENDATION THAT A CRIMINAL PROSECUTION BE INSTITUTED
AGAINST THE TAXPAYER. 

HE ARGUES THAT A SUMMONS SO USED IS INVALID AND UNENFORCEABLE
BECAUSE IT IS OUTSIDE THE SCOPE OF SEC. 7602.  THE GOVERNMENT NATURALLY
ARGUES THE CONTRARY. 

THE ARGUMENT CENTERS IN THE ABOVE-MENTIONED DICTUM IN REISMAN, 375
U.S.,AT 449: 

"(THE WITNESS MAY CHALLENGE THE SUMMONS ON ANY APPROPRIATE GROUND. 
THIS WOULD INCLUDE, AS THE CIRCUITS HAVE HELD, THE DEFENSES THAT THE
MATERIAL IS SOUGHT FOR THE IMPROPER PURPOSE OF OBTAINING EVIDENCE FOR
USE IN A CRIMINAL PROSECUTION, BOREN V. TUCKER, 239 F.2D 767, 772-773,
AS WELL AS THAT IT IS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE.  . .
. " 

WE NOTE INITIALLY THAT, DESPITE THE DICTUM, THE COURTS OF APPEALS IN
OPINIONS ISSUED SINCE REISMAN WAS DECIDED, APPEAR UNIFORMLY TO APPROVE
THE USE OF A SUMMONS IN AN INVESTIGATION THAT IS LIKELY TO LEAD TO
CIVIL LIABILITY AS WELL AS TO CRIMINAL PROSECUTION.  /13/  THE USE OF A
SUMMONS ALSO HAS BEEN APPROVED, EVEN WHERE IT IS ALLEGED THAT ITS
PURPOSE IS TO UNCOVER CRIME, IF NO CRIMINAL PROSECUTION AS YET HAS BEEN
INSTITUTED.  /14/  ON THE OTHER HAND, IT HAS BEEN SAID, USUALLY CITING
REISMAN, THAT WHERE THE SOLE OBJECTIVE OF THE INVESTIGATION IS TO
OBTAIN EVIDENCE FOR USE IN A CRIMINAL PROSECUTION, THE PURPOSE IS NOT A
LEGITIMATE ONE AND ENFORCEMENT MAY BE DENIED.  /15/  THIS, OF COURSE,
WOULD LIKELY BE THE CASE WHERE A CRIMINAL PROSECUTION HAS BEEN
INSTITUTED AND IS PENDING AT THE TIME OF ISSUANCE OF THE SUMMONS. 

IT IS PRECISELY THE LATTER SITUATION-- WHERE THE SOLE OBJECT OF THE
INVESTIGATION IS TO GATHER DATA FOR CRIMINAL PROSECUTION-- THAT IS THE
SUBJECT OF THE REISMAN DICTUM.  THIS IS EVIDENT FROM THE FACT THAT THE
DICTUM ITSELF EMBRACES THE CITATION OF BOREN V. TUCKER, 239 F.2D 767,
772-773 (CA9 1956), AN OPINION IN WHICH, AT THE PAGES CITED, THE NINTH
CIRCUIT VERY CAREFULLY DISTINGUISHED UNITED STATES V. O'CONNOR, 118
F.SUPP.  248 (MASS. 1953), A CASE WHERE THE TAXPAYER ALREADY WAS UNDER
INDICTMENT.  THE REISMAN DICTUM IS TO BE READ IN THE LIGHT OF ITS
CITATION OF BOREN, AND OF BOREN'S OWN CITATION OF O'CONNOR; WHEN SO
READ, THE DICTUM COMES INTO PROPER FOCUS AS APPLICABLE TO THE SITUATION
OF A PENDING CRIMINAL CHARGE OR, AT MOST, OF AN INVESTIGATION SOLELY
FOR CRIMINAL PURPOSES. 

ANY OTHER HOLDING, OF COURSE, WOULD THWART AND DEFEAT THE
APPROPRIATE INVESTIGATORY POWERS THAT THE CONGRESS HAS PLACED IN "THE
SECRETARY OR HIS DELEGATE."  WHEN GRADY'S SUMMONSES WERE ISSUED TO
MERCURIO AND TO ACME, DONALDSON WAS NOT UNDER INDICTMENT AND, INDEED,
NO RECOMMENDATION HAD BEEN MADE FOR HIS PROSECUTION.  THAT HE MIGHT BE
INDICTED AND PROSECUTED WAS ONLY A POSSIBILITY, NO MORE AND NO LESS IN
HIS CASE THAN IN THE CASE OF ANY OTHER TAXPAYER WHOSE INCOME TAX RETURN
IS UNDERGOING AUDIT.  PROSECUTION WILL NECESSARILY DEPEND ON THE RESULT
OF THAT AUDIT AND ON WHAT THE EXAMINATION AND INVESTIGATION REVEAL. 

WE BEAR IN MIND THAT THE INTERNAL REVENUE SERVICE IS ORGANIZED TO
CARRY OUT THE BROAD RESPONSIBILITIES OF THE SECRETARY OF THE TREASURY
UNDER SEC. 7801(A) OF THD 1954 CODE FOR THE ADMINISTRATION AND
ENFORCEMENT OF THE INTERNAL REVENUE LAWS.  /16/  SEE INTERNAL REVENUE
SERVICE ORGANIZATION AND FUNCTIONS, SEC. 1112 ET SEQ., 35 FED.REG. 
2417 ET SEQ. (1970).  WE FURTHER BEAR IN MIND THAT THE SERVICE HAS
DISTRICT OFFICES, EACH WITH AN AUDIT DIVISION AND A CRIMINAL DIVISION;
THAT THE AUDIT DIVISION'S PROGRAM EMPHASIZES THE CIVIL ASPECTS OF
ENFORCEMENT BUT EMBRACES "PARTICIPATION WITH SPECIAL AGENTS OF THE
INTELLIGENCE DIVISION IN THE CONDUCT OF TAX FRAUD INVESTIGATIONS," SEC.
1118.4; THAT THE INTELLIGENCE DIVISION ENFORCES THE CRIMINAL STATUTES
AFFECTING INCOME AND CERTAIN OTHER TAXES AND DEVELOPS INFORMATION
CONCERNING ALLEGED CRIMINAL VIOLATIONS, SEC. 1118.6; THAT EACH
ASSISTANT REGIONAL COMMISSIONER FOR INTELLIGENCE DEVELOPS PROGRAMS FOR
THE INVESTIGATION OF ALLEGED TAX FRAUDS AND "CERTAIN OTHER CIVIL AND
ALLEGED CRIMINAL VIOLATIONS OF TAX LAWS" AND "APPROVES OR DISAPPROVES
RECOMMENDATIONS FOR PROSECUTION," SEC. 1114.(10); AND THAT
RECOMMENDATIONS FOR PROSECUTION ARE PROCESSED THROUGH THE OFFICE OF
REGIONAL COUNSEL AND BY THAT OFFICE OT THE DEPARTMENT OF JUSTICE, SEC.
1116(3).  THIS DEMONSTRATES THAT THE SPECIAL AGENT MAY WELL CONDUCT HIS
INVESTIGATION JOINTLY WITH AN AGENT FROM THE AUDIT DIVISION; THAT THEIR
COMBINED EFFORTS ARE DIRECTED TO BOTH CIVIL AND CRIMINAL INFRACTIONS;
AND THAT ANY DECISION TO RECOMMEND PROSECUTION COMES ONLY AFTER THE
INVESTIGATION IS COMPLETE OR IS SUFFICIENTLY FAR ALONG TO SUPPORT
APPROPRIATE CONCLUSIONS.  THE FACT THAT A FULL-SCALE TAX FRAUD
INVESTIGATION IS BEING MADE DOES NOT NECESSARILY MEAN THAT PROSECUTION
ENSUES WHEN TAX LIABILITY BECOMES APPARENT.  /17/ 

CONGRESS CLEARLY HAS AUTHORIZED THE USE OF THE SUMMONS IN
INVESTIGATING WHAT MAY PROVE TO BE CRIMINAL CONDUCT.  THE REGULATIONS
ARE POSITIVE.  TREAS. REGS. SBC.  301.7602-1(C)(4), 26 CFR SEC.
301.7602-1(C)(4).  THE UNDERLYING STATUTES ARE JUST AS AUTHORITATIVE. 
CODE AND, HENCE, IN THE AUTHORIZING SEC. 7602, TO INCLUDE ANY ADDITION
OR PENALTY.  SECTION 7602 CONTAINS NO RESTRICTION; FURTHER, IT HAS ITS
ASCERTAINABLE ROOTS IN THE 1939 CODE'S SEC. 3614 AND, ALSO SEC. 3615(A)
(C), WHICH, BY ITS VERY LANGUAGE AND BY ITS PROXIMITY TO SEC. 3616 AND
SEC. 3654, APPEARS TO AUTHORIZE THE USE OF THE SUMMONS FOR
INVESTIGATION INTO CRIMINAL CONDUCT.  THERE IS NO STATUTORY SUGGESTION
FOR ANY MEANINGFUL LINE OF DISTINCTION, FOR CIVIL AS COMPARED WITH
CRIMINAL PURPOSES, AT THE POINT OF A SPECIAL AGENT'S APPEARANCE.  SEE
MATHIS V. UNITED STATES, 391 U.S. 1, 4 (1968).  TO DRAW A LINE WHERE A
SPECIAL AGENT APPEARS WOULD REQUIRE THE SERVICE, IN A SITUATION OF
SUSPECTED BUT UNDETERMINED FRAUD, TO FORGO EITHER THE USE OF THE
SUMMONS OR THE POTENTIALITY OF AN ULTIMATE RECOMMENDATION FOR
PROSECUTION.  WE REFUSE TO DRAW THAT LINE AND THUS TO STULTIFY
ENFORCEMENT OF FEDERAL LAW.  SEE UNITED STATES V. KORDEL, 397 U.S. 1,
11 (1970).     WE HOLD THAT UNDER SEC. 7602 AN INTERNAL REVENUE SUMMONS
MAY BE ISSUED IN AID OF AN INVESTIGATION IF IT IS ISSUED IN GOOD FAITH
AND PRIOR TO A RECOMMENDATION FOR CRIMINAL PROSECUTION. 

              AFFIRMED. 

/1/  THE RECORD DOES NOT SPECIFICALLY SUPPORT THE FACT OF
DONALDSON'S EMPLOYMENT BY, OR PERFORMANCE FOR, ACME.  IN THE CONTEXT OF
THE CASE, HOWEVER, THIS IS IMPLIED AND, OBVIOUSLY, THE INVESTIGATION IS
DIRECTED TO THE ASCERTAINMENT OF THE FACT.     /2/  "SEC.  7602. 
EXAMINATION OF BOOKS AND WITNESSES 

"FOR THE PURPOSE OF ASCERTAINING THE CORRECTNESS OF ANY RETURN,
MAKING A RETURN WHERE NONE HAS BEEN MADE, DETERMINING THE LIABILITY OF
ANY PERSON FOR ANY INTERNAL REVENUE TAX . . . OR COLLECTING ANY SUCH
LIABILITY, THE SECRETARY OR HIS DELEGATE IS AUTHORIZED-- 

"(1) TO EXAMINE ANY BOOKS, PAPERS, RECORDS, OR OTHER DATA WHICH MAY
BE RELEVANT OR MATERIAL TO SUCH INQUIRY; 

"(2) TO SUMMON THE PERSON LIABLE FOR TAX . . . OR ANY PERSON HAVING
POSSESSION, CUSTODY, OR CARE OF BOOKS OF ACCOUNT CONTAINING ENTRIES
RELATING TO THE BUSINESS OF THE PERSON LIABLE FOR TAX . . . OR ANY
OTHER PERSON THE SECRETARY OR HIS DELEGATE MAY DEEM PROPER, TO APPEAR
BEFORE THE SECRETARY OR HIS DELEGATE AT A TIME AND PLACE NAMED IN THE
SUMMONS AND TO PRODUCE SUCH BOOKS, PAPERS, RECORDS, OR OTHER DATA, AND
TO GIVE SUCH TESTIMONY, UNDER OATH, AS MAY BE RELEVANT OR MATERIAL TO
SUCH INQUIRY; AND 

"(3) TO TAKE SUCH TESTIMONY OF THE PERSON CONCERNED, UNDER OATH, AS
MAY BE RELEVANT OR MATERIAL TO SUCH INQUIRY." 

/3/  "SEC.  7402.  JURISDICTION OF DISTRICT COURTS

        .          .          .          . 

"(B) TO ENFORCE SUMMONS-- IF ANY PERSON IS SUMMONED UNDER THE
INTERNAL REVENUE LAWS TO APPEAR, TO TESTIFY, OR TO PRODUCE BOOKS,
PAPERS, OR OTHER DATA, THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT IN WHICH SUCH PERSON RESIDES OR MAY BE FOUND SHALL HAVE
JURISDICTION BY APPROPRIATE PROCESS TO COMPEL SUCH ATTENDANCE,
TESTIMONY, OR PRODUCTION OF BOOKS, PAPERS, OR OTHER DATA." 

"SEC. 7604.  ENFORCEMENT OF SUMMONS 

"(A) JURISDICTION OF DISTRICT COURT.-- IF ANY PERSON IS SUMMONED
UNDER THE INTERNAL REVENUE LAWS TO APPEAR, TO TESTIFY, OR TO PRODUCE
BOOKS, PAPERS, RECORDS, OR OTHER DATA, THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT IN WHICH SUCH PERSON RESIDES OR IS FOUND SHALL HAVE
JURISDICTION BY APPROPRIATE PROCESS RESIDES OR IS FOUND SHALL HAVE
JURISDICTION BY APPROPRIATE PROCESS TO COMPEL SUCH ATTENDANCE,
TESTIMONY, OR PRODUCTION OF BOOKS, PAPERS, RECORDS, OR OTHER DATA." 

/4/  AGENT GRADY WORKED FROM THE TAMPA DISTRICT OFFICE OF THE
INTERNAL REVENUE SERVICE, AND AGENT MILLER FROM THE NEW ORLEANS
DISTRICT OFFICE.  THE TAXPAYER HAD A NEW ORLEANS ADDRESS; MERCURIO AND
ACME POSSESSED FLORIDA ADDRESSES. 

/5/  MERCURIO AND ACME ARE NOT ACTIVE PARTIES TO THE PRESENT
REVIEW.  THEY ADVISE THE COURT THAT THEY ARE "READY TO FOLLOW THE
ORDERS OF THE COURT, AND ARE NOMINAL PARTIES ONLY." 

/6/  COMPARE THE FIFTH CIRCUIT'S HOLDING IN THE PRESENT CASE; IN RE
COLE, 342 F.2D 5(CA2), CERT. DENIED, 381 U.S. 950 (1965); AND O'DONNEL
V. SULLIVAN, 364 F.2D 43, 44 (CA1 1966), WITH UNITED STATES V. BENFORD,
406 F.2D 1192 (CA7 1969); UNITED STATES V. BANK OF COMMERCE, 405 F.2D
931 (CA3 1969); AND JUSTICE V. UNITED STATES, 365 F.2D 312 (CA6 1966). 

/7/  TR. OF ORAL ARG. 9-10. 

/8/  "RULE 24. 

"INTERVENTION 

"(A) INTERVENTION OF RIGHT.  UPON TIMELY APPLICATION ANYONE SHALL BE
PERMITTED TO INTERVENE IN AN ACTION: . . . (2) WHEN THE APPLICANT
CLAIMS AN INTEREST RELATING TO THE PROPERTY OR TRANSACTION WHICH IS THE
SUBJECT OF THE ACTION AND HE IS SO SITUATED THAT THE DISPOSITION OF THE
ACTION MAY AS A PRACTICAL MATTER IMPAIR OR IMPEDE HIS ABILITY TO
PROTECT THAT INTEREST, UNLESS THE APPLICANT'S INTEREST IS ADEQUATELY
REPRESENTED BY EXISTING PARTIES." 

/9/  "BECAUSE SEC. 7604(A) CONTAINS NO PROVISION SPECIFYING THE
PROCEDURE TO BE FOLLOWED IN INVOKING THE COURT'S JURISDICTION, THE
FEDERAL RULES OF CIVIL PROCEDURE APPLY.  . . . THE PROCEEDINGS ARE
INSTITUTED BY FILING A COMPLAINT, FOLLOWED BY ANSWER AND HEARING.  . .
. " 

/10/  "HOWEVER, THE GOVERNMENT CONCEDES THAT A WITNESS OR ANY
INTERESTED PARTY MAY ATTACK THE SUMMONS BEFORE THE HEARING OFFICER. 
THERE ARE CASES AMONG THE CIRCUITS WHICH HOLD THAT BOTH PARTIES
SUMMONED AND THOSE AFFECTED BY A DISCLOSURE MAY APPEAR OR INTERVENE
BEFORE THE DISTRICT COURT AND CHALLENGE THE SUMMONS BY ASSERTING THEIR
CONSTITUTIONAL OR OTHER CLAIMS.  . . . WE AGREE WITH THAT VIEW AND SEE
NO REASON WHY THE SAME RULE WOULD NOT APPLY BEFORE THE HEARING
OFFICER." 

/11/  "RULE 81. 

"APPLICABILITY IN GENERAL 

"(A) TO WHAT PROCEEDINGS APPLICABLE. 

        .  .          .          . 

"(3) . . . THESE RULES APPLY . . . TO PROCEEDINGS TO COMPEL THE
GIVING OF TESTIMONY OR PRODUCTION OF DOCUMENTS IN ACCORDANCE WITH A
SUBPOENA ISSUED BY AN OFFICER OR AGENCY OF THE UNITED STATES UNDER ANY
STATUTE OF THE UNITED STATES EXCEPT AS OTHERWISE PROVIDED BY STATUTE OR
BY RULES OF THE DISTRICT COURT OR BY ORDER OF THE COURT IN THE
PROCEEDINGS." 

/12/  "FURTHERMORE, WE HOLD THAT IN ANY OF THESE PROCEDURES BEFORE
EITHER THE DISTRICT JUDGE OR UNITED STATES COMMISSIONER, THE WITNESS
MAY CHALLENGE THE SUMMONS ON ANY APPROPRIATE GROUND.  THIS WOULD
INCLUDE, AS THE CIRCUITS HAVE HELD, THE DEFENSES THAT THE MATERIAL IS
SOUGHT FOR THE IMPROPER PURPOSE OF OBTAINING EVIDENCE FOR USE IN A
CRIMINAL PROSECUTION . .  . AS WELL AS THAT IT IS PROTECTED BY THE
ATTORNEY-CLIENT PRIVILEGE . . . . IN ADDITION, THIRD PARTIES MIGHT
INTERVENE TO PROTECT THEIR INTERESTS, OR IN THE EVENT THE TAXPAYER IS
NOT A PARTY TO THE SUMMONS BEFORE THE HEARING OFFICER, HE, TOO, MAY
INTERVENE."  375 U.S.,AT 449. 

/13/  WILD V. UNITED STATES, 362 F.2D 206, 209 (CA9 1966); MCGARRY
V. RILEY, 363 F.2D 421, 424 (CA1), CERT. DENIED, 385 U.S. 969 (1966);
VENN V. UNITED STATES, 400 F.2D 207, 210 (CA5 1968); SANFORD V. UNITED
STATES, 358 F.2D 685, 586 (CA5 1966); UNITED STATES V. HAYES, 408 F.2D
932, 936 (CA7), CERT. DENIED, 396 U.S. 835 (1969); UNITED STATES V.
GIORDANO, 419 F.2D 564, 568 (CA8 1969), CERT. DENIED, 397 U.S. 1037
(1970); UNITED STATES V. CHIKATA, 427 F.2D 385, 390 (CA9 1970); UNITED
STATES V. DEGROSA, 405 F.2D 926, 928 (CA3), CERT. DENIED SUB NOM.
ZUDICK V. UNITED STATES, 394 U.S. 973 (1969); SEE UNITED STATES V.
FIRST NAT. BANK, 274 F.SUPP.  283, 285 (ED KY. 1967), AFF'D SUB NOM.
JUSTICE V. UNITED STATES, 390 U.S. 199 (1968). 

/14/  UNITED STATES V. ERDNER, 422 F.2D 835, 836 (CA3 1970); UNITED
STATES V. MICHIGAN BELL TEL. CO., 415 F.2D 1284, 1286 (CA6 1969);
HOWFIELD, INC. V. UNITED STATES, 409 F.2D 694, 697 (CA9 1969); UNITED
STATES V. RUGGEIRO, 425 F.2D 1069, 1070 (CA9 1970), PETITION FOR
CERTIORARI PENDING SUB NOM.  KYRIACO V. UNITED STATES, NO. 448, O.T.
1970. 

/15/  WILD V. UNITED STATES, 362 F.2D,AT 208-209; VENN V. UNITED
STATES, 400 F.2D,AT 210; UNITED STATES V. ROUNDTREE, 420 F.2D 845, 851
(CA5 1969).  SEE UNITED STATES V. O'CONNOR, 118 F.SUPP.  248 ( MASS.
1953). 

/16/  "SEC.  7801.  AUTHORITY OF DEPARTMENT OF THE TREASURY 

"(A) POWERS AND DUTIES OF SECRETARY.-- EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED BY LAW, THE ADMINISTRATION AND ENFORCEMENT OF THIS TITLE SHALL
BE PERFORMED BY OR UNDER THE SUPERVISION OF THE SECRETARY OF THE
TREASURY." 

/17/  IN 1969, 2,080 FULL-SCALE TAX FRAUD INVESTIGATIONS WERE
UNDERTAKEN BY THE INTELLIGENCE DIVISIONS.  ONLY 1,049, OR APPROXIMATELY
HALF, OF THESE RESULTED IN RECOMMENDATIONS FOR PROSECUTION.  IN THE
1,031 CASES NOT RECOMMENDED FOR PROSECUTION, SOME $20,000,000 IN
DEFICIENCIES AND PENALTIES RESULTED AND WERE EARMARKED FOR COLLECTION
CIVILLY.  1969 ANNUAL REPORT OF THE COMMISSIONER OF INTERNAL REVENUE 28
31. 

MR. JUSTICE BRENNAN, BELIEVING THAT UNDER THE FACTS OF THIS CASE
PETITIONER HAS ESTABLISHED NO RIGHT TO INTERVENE, CONCURS IN THE
RESULT. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE PETITIONER IS THE SUBJECT OF AN INVESTIGATION BY THE
INTELLIGENCE DIVISION OF THE INTERNAL REVENUE SERVICE WHICH SEEKS TO
OBTAIN INFORMATION REGARDING FINANCIAL TRANSACTIONS BETWEEN THE
PETITIONER-TAXPAYER AND THE ACME CIRCUS OPERATING CO. SUMMONSES HAVE
BEEN SERVED ON ACME AND ITS ACCOUNTANT, MR. MERCURIO, IN ORDER TO
OBTAIN TESTIMONY AND TO REVIEW RECORDS RELATING TO PETITIONER.  THE
PETITIONER IS ATTEMPTING TO PREVENT ACME AND MERCURIO FROM COMPLYING
WITH THE SUMMONSES AND TO PREVENT THE FEDERAL DISTRICT COURT FROM
ENFORCING THOSE SUMMONSES.  HE SOUGHT TO INTERVENE IN THE ENFORCEMENT
PROCEEDINGS, ALLEGING THAT HE HAS A VITAL INTEREST IN THE LITIGATION
AND THAT THE SUMMONSES ARE NOT ENFORCEABLE BECAUSE THEY WERE ISSUED
IMPROPERLY, TO GATHER INFORMATION FOR A CRIMINAL PROSECUTION.  THE
DISTRICT COURT DENIED HIS MOTION TO INTERVENE AND ENFORCED THE
SUMMONSES BUT STAYED ITS MANDATE.  THE COURT OF APPEALS AFFIRMED BUT
CONTINUED THE STAY PENDING DISPOSITION BY THIS COURT.  AS YET THERE HAS
BEEN NO HEARING BEFORE THE SPECIAL AGENT, AND THIS COURT RULES ONLY
THAT SUCH A HEARING MAY PROCEED ON THE SUMMONSES ISSUED. 

ON THESE FACTS, I CONCUR WITH THE COURT'S DECISION.  THERE IS
NOTHING IN THE LANGUAGE OF SEC. 7602 TO LIMIT THE ISSUANCE OF SUMMONSES
TO CIVIL INVESTIGATIONS.  THEREFORE, EVEN THOUGH PETITIONER IS THE
SUBJECT OF A CRIMINAL INVESTIGATION, THAT IS NO BAR TO THE ISSUANCE OF
THE SUMMONSES.  IT IS TRUE THAT A PERSON WHO IS SUMMONED MAY OBJECT
THAT THE PRODUCTION OF RECORDS OR TESTIFYING WOULD VIOLATE HIS RIGHTS
UNDER THE FOURTH OR FIFTH AMENDMENTS.  AND A TAXPAYER WOULD CLEARLY
HAVE STANDING TO RAISE A CLAIM OF VIOLATION OF HIS CONSTITUTIONAL
RIGHTS IF A THIRD PARTY WERE ORDERED TO PRODUCE RECORDS BELONGING TO
THE TAXPAYER.  UNITED STATES V. KORDEL, 397 U.S. 1, 7; REISMAN V.
CAPLIN, 375 U.S. 440, 445.  BUT IT IS DIFFICULT TO SEE HOW THE
SUMMONING OF A THIRD PARTY, AND THE RECORDS OF A THIRD PARTY, CAN
VIOLATE THE RIGHTS OF THE TAXPAYER, EVEN IF A CRIMINAL PROSECUTION IS
CONTEMPLATED OR IN PROGRESS.  THERE IS NO RIGHT TO BE FREE FROM
INCRIMINATION BY THE RECORDS OR TESTIMONY OF OTHERS. 

THE TAXPAYER MAY, HOWEVER, PROTECT HIS INTERESTS IN ANY HEARINGS
HELD PURSUANT TO SEC. 7602.  THE INTERNAL REVENUE SERVICE IS CLEARLY
CONDUCTING A CRIMINAL INVESTIGATION OF THE PETITIONER.  THAT IS THE
FUNCTION OF SPECIAL AGENTS.  /1/  THE PURPOSE OF THE SUMMONSES IS TO
GATHER EVIDENCE FOR A CRIMINAL PROSECUTION.  AT SUCH "INVESTIGATIONS"
THE SUMMONED PARTY MAY OR MAY NOT BE PUT UNDER OATH, AT THE DISCRETION
OF THE AGENT.  HE DOES HAVE THE RIGHT TO BE ACCOMPANIED BY COUNSEL OR
AN ACCOUNTANT.  BUT THE INTERNAL REVENUE SERVICE HAS TAKEN THE POSITION
THAT THE TAXPAYER WHO IS BEING INVESTIGATED IS NOT ENTITLED TO BE
PRESENT AT SUCH "EX PARTE INVESTIGATIONS."  /2/  MOREOVER, HE NORMALLY
IS NOT GIVEN NOTICE OF THE ISSUANCE OF THE SUMMONS TO THE THIRD PARTY. 
OUR DECISIONS, HOWEVER, MAKE CLEAR THAT THE TAXPAYER HAS THE RIGHT TO
BE PRESENT AT THE HEARING AND TO CONFRONT AND CROSS-EXAMINE WITNESSES
AND INSPECT EVIDENCE AGAINST HIM. 

THE TRADITIONAL FEDERAL METHOD FOR GATHERING SUCH INFORMATION IS THE
GRAND JURY.  BEFORE THAT BODY THERE IS NO RIGHT TO COUNSEL AND
CONFRONTATION, BUT OTHER PROTECTIONS ARE PRESENT, NONE OF WHICH EXIST
HERE.  THE COURT IN A FIVE-TO-FOUR DECISION RELIED ON THE ANALOGY TO
THE GRAND JURY IN IN RE GROBAN, 352 U.S. 330, 333, RULING THAT A PERSON
HAS NO RIGHT TO COUNSEL WHEN ORDERED TO TESTIFY BEFORE A FIRE MARSHAL. 
MR. JUSTICE BLACK STATED, I THINK, THE CORRECT VIEW IN HIS DISSENT: 

     "(ANY SURFACE SUPPORT THE GRAND JURY PRACTICE MAY LEND

  DISAPPEARS UPON ANALYSIS OF THAT INSTITUTION.  THE TRADITIONAL

  ENGLISH AND AMERICAN GRAND JURY IS COMPOSED OF 12 TO 23 MEMBERS

  SELECTED FROM THE GENERAL CITIZENRY OF THE LOCALITY WHERE THE

  ALLEGED CRIME WAS COMMITTED.  THEY BRING INTO THE GRAND JURY ROOM

  THE EXPERIENCE, KNOWLEDGE AND VIEWPOINT OF ALL SECTIONS OF THE

  COMMUNITY.  THEY HAVE NO AXES TO GRIND AND ARE NOT CHARGED

  PERSONALLY WITH THE ADMINISTRATION OF THE LAW.  NO ONE OF THEM IS

  A PROSECUTING ATTORNEY OR LAW-ENFORCEMENT OFFICER FERRETING OUT

  CRIME.  IT WOULD BE VERY DIFFICULT FOR OFFICERS OF THE STATE

  SERIOUSLY TO ABUSE OR DECEIVE A WITNESS IN THE PRESENCE OF THE

GRAND JURY.  SIMILARLY THE PRESENCE OF THE JURORS OFFERS A

SUBSTANTIAL SAFEGUARD AGAINST THE OFFICERS' MISREPRESENTATION,

  UNINTENTIONAL OR OTHERWISE, OF THE WITNESS' STATEMENTS AND

  CONDUCT BEFORE THE GRAND JURY.  THE WITNESS CAN CALL ON THE GRAND

  JURORS IF NEED BE FOR THEIR NORMALLY UNBIASED TESTIMONY AS TO

  WHAT OCCURRED BEFORE THEM. 

    .          .          .          . 

     "(THE FIRE MARSHAL'S INTERROGATION IS, AND APPARENTLY WAS

  INTENDED TO BE, AND IMPORTANT AND INTEGRAL PART IN THE

  PROSECUTION OF THE PERSONS FOR ARSON OR A SIMILAR CRIME.  THE

  RIGHTS OF A PERSON WHO IS EXAMINED IN CONNECTION WITH SUCH CRIMES

  SHOULD NOT BE DESTROYED MERELY BECAUSE THE INQUIRY IS GIVEN THE

  EUPHONIOUS LABEL 'ADMINISTRATIVE.'"  352 U.S.,AT 346-347, 349. 

IN ANONYMOUS V. BAKER, 360 U.S. 287, ANOTHER FIVE-TO-FOUR DECISION,
THE COURT UPHELD THE POWER OF A JUDGE IN NEW YORK, ACTING AS A ONE-MAN
GRAND JURY, TO INTERROGATE A WITNESS WITH BENEFIT OF COUNSEL, AGAIN
RELYING ON THE DISTINCTION BETWEEN INVESTIGATION AND PROSECUTION.  ID.,
AT 294.  MR. JUSTICE BLACK AGAIN STATED THE CORRECT VIEW IN HIS DISSENT
THAT THIS PROCEDURE ALLOWED A STATE OFFICIAL TO LAY THE GROUNDWORK FOR
A FUTURE PROSECTUION WITHOUT THE PROTECTION OF THE PRESENCE OF
COUNSEL. 

IN HANNAH V. LARCHE, 363 U.S. 420, REGISTRARS WHO WERE ACCUSED OF
RACIAL DISCRIMINATION ASKED TO BE ALLOWED TO CONFRONT AND CROSS-EXAMINE
WITNESSES APPEARING BEFORE THE COMMISSION ON CIVIL RIGHTS.  A MAJORITY
FOUND NO SUCH RIGHT BECAUSE THE COMMISSION DID NOT "ADJUDICATE" OR
"ISSUE ORDERS" BUT ONLY FOUND FACTS.  THAT CRIMINAL PROSECUTIONS MIGHT
FOLLOW WAS "PURELY CONJECTURAL."  THE SOLICITOR GENERAL RELIES ON THIS
CASE FOR APPROVAL OF OF THE PROCEDURES ADOPTED BY THE INTERNAL REVENUE
SERVICE.     MY VIEW HAS NOT CHANGED: 

"THERE IS . . . ONLY ONE WAY THE CHIEF EXECUTIVE MAY MOVE AGAINST A
PERSON ACCUSED OF A CRIME AND DENY HIM THE RIGHT OF CONFRONTATION AND
CROSS-EXAMINATION AND THAT IS BY THE GRAND JURY."  363 U.S.,AT 497. 
"(THE GRAND JURY IS) THE ONLY ACCUSATORY BODY IN THE FEDERAL GOVERNMENT
THAT IS RECOGNIZED BY THE CONSTITUTION.  I WOULD ALLOW NO OTHER ENGINE
OF GOVERNMENT, EITHER EXECUTIVE OR LEGISLATIVE, TO TAKE (ITS) PLACE--
AT LEAST WHEN THE RIGHT OF CONFRONTATION AND CROSS-EXAMINATION ARE
DENIED THE ACCUSED AS IS DONE IN THESE CASES."  ID., AT 499. 

IN JENKINS V. MCKEITHEN, 395 U.S. 411, THE COURT DEALT WITH ANOTHER
STATE INVESTIGATIVE COMMISSION.  THERE, HOWEVER, THE AUTHORITY OF THE
COMMISSION WAS LIMITED TO ASCERTAINING FACTS REGARDING VIOLATIONS OF
CRIMINAL LAW AND REPORTING ITS FINDINGS FOR CRIMINAL PROSECUTION. 
THERE WAS NO RIGHT TO CROSS-EXAMINE FOR NONWITNESSES AND THE RIGHT WAS
LIMITED FOR WINTESSES.  THE COURT HELD THAT THE COMMISSION EXERCISED AN
ACCUSATORY FUNCTION AND WAS EMPOWERED TO BRAND PEOPLE AS CRIMINALS. 
ID., AT 427-428.  THEREFORE, DUE PROCESS REQUIRED THE RIGHT TO CONFRONT
AND CROSS-EXAMINE THE WINTESSES AGAINST HIM. 

GIVEN THE IDENTITY OF PURPOSE OF THE INVESTIGATIONS IN JENKINS AND
THIS CASE, THE RULE OF JENKINS CLEARLY APPLIES TO THE TAXPAYER IN THIS
SUIT.  THE REQUIREMENTS OF PROCEDURAL DUE PROCESS DO NOT BECOME MORE
LAX WHEN FEDERAL RATHER THAN STATE CRIMINAL INVESTIGATIONS ARE
INVOLVED. 

THE PROCEEDING CONTEMPLATED IN THE SUMMONSES SERVED ON ACME AND
MERCURIO IS A CRIMINAL INVESTIGATION.  THE RESULT WITH BE A
DETERMINATION OF WHETHER TO BRING CRIMINAL CHARGES.  THE SPECIAL AGENT
WILL PERFORM THE FUNCTION TRADITIONALLY RESERVED TO THE GRAND JURY IN
OUR FEDERAL GOVERNMENT.  THE TEACHING OF THE JENKINS CASE IS THAT SUCH
A PROCEEDING MAY NOT BE HELD WITHOUT AFFORDING THE TAXPAYER AN
OPPORTUNITY TO ATTEND, TO CROSS-EXAMINE, AND TO REBUT. 

/1/  THOUGH THE SOLICITOR GENERAL ARGUES THAT AN INVESTIGATION BY A
SPECIAL AGENT MIGHT HAVE CIVIL AS WELL AS CRIMINAL RESULTS, AND THE
FINAL DECISION TO PROSECUTE IS NOT MADE UNTIL AFTER AN INVESTIGATION,
AND APPROVAL BY A REGIONAL COUNSEL, HE ADMITS THAT THE SPECIAL AGENT IS
ONLY ASSIGNED TO THE CASE "AS A RESULT OF SOME ALLEGATIONS OR
INDICATION OF CRIMINAL CONDUCT."  INDEED THE INTELLIGENCE DIVISION
"ENFORCES THE CRIMINAL STATUTES . . . BY DEVELOPING INFORMATION
CONCERNING ALLEGED CRIMINAL VIOLATIONS THEREOF.  . . . "  INTERNAL
REVENUE SERVICE ORGANIZATION AND FUNCTIONS SEC. 1118.6, 35 FED.REG. 
2454. 

/2/  AN EXCEPTION IS MADE WHERE THE TAXPAYER ASSERTS A PRIVILEGED
RELATIONSHIP WITH THE PERSON SUMMONED, SUCH AS ATTORNEY-CLIENT. 

ROBERT E. MELDMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS LOUIS L. MELDMAN. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES ET AL. ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WALTERS, DEPUTY SOLICITOR GENERAL SPRINGER, SAMUEL HUNTINGTON, JOSEPH
M. HOWARD, AND JOHN P. BURKE. 
..END :




















PHILLIPS V. MARTIN MARIETTA CORP., 400 U.S. 542 


       PHILLIPS V. MARTIN MARIETTA CORP.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

   FIFTH CIRCUIT

        NO. 73.  ARGUED DECEMBER 9, 1970-- DECIDED JANUARY 25,
1971 


UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AN EMPLOYER MAY NOT,
IN THE ABSENCE OF BUSINESS NECESSITY, REFUSE TO HIRE WOMEN WITH PRE
SCHOOL-AGE WHILE HIRING MEN WITH SUCH CHILDREN. 

411 F.2D 1, VACATED AND REMANDED. 

PER CURIAM. 

PETITIONER MRS. IDA PHILLIPS COMMENCED AN ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA UNDER TITLE
VII OF THE CIVIL RIGHTS ACT OF 1964 /0/  ALLEGING THAT SHE HAD BEEN
DENIED EMPLOYMENT BECAUSE OF HER SEX.  THE DISTRICT COURT GRANTED A
SUMMARY JUDGMENT FOR MARTIN MARIETTA CORP. (MARTIN) ON THE BASIS OF THE
FOLLOWING SHOWING:  (1) IN 1966 MARTIN INFORMED MRS. PHILLIPS THAT IT
WAS NOT ACCEPTING JOB APPLICATIONS FROM WOMEN WITH PRE-SCHOOL-AGE
CHILDREN; (2) AS OF THE TIME OF THE MOTION FOR SUMMARY JUDGMENT, MARTIN
EMPLOYED MEN WITH PRE-SCHOOL-AGE CHILDREN; (3) AT THE TIME MRS.
PHILLIPS APPLIED, 70-75% OF THE APPLICANTS FOR THE POSITION SHE SOUGHT
WERE WOMEN; 75-80% OF THOSE HIRED FOR THE POSITION, ASSEMBLY TRAINEE,
WERE WOMEN, HENCE NO QUESTION OF BIAS AGAINST WOMEN AS SUCH WAS
PRESENTED. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED, 411 F.2D 1, AND
DENIED A REHEARING EN BANC, 416 F.2D 1257 (1969).  WE GRANTED
CERTIORARI.  397 U.S. 960 (1970). 

OF LIKE QUALIFICATIONS BE GIVEN EMPLOYMENT OPPORTUNITIES IRRESPECTIVE
OF THEIR SEX.  THE COURT OF APPEALS THEREFORE ERRED IN READING THIS
EACH HAVING PRE-SCHOOL-AGE CHILDREN.  THE EXISTENCE OF SUCH CONFLICTING
FAMILY OBLIGATIONS, IF DEMONSTRABLY MORE RELEVANT TO JOB PERFORMANCE
FOR A WOMAN THAN FOR A MAN, COULD ARGUBLY BE A BASIS FOR DISTINCTION
UNDER SEC. 703(E) OF THE ACT.  BUT THAT IS A MATTER OF EVIDENCE TENDING
TO SHOW THAT THE CONDITION IN QUESTION "IS A BONA FIDE OCCUPATIONAL
QUALIFICATION REASONABLY NECESSARY TO THE NORMAL OPERATION OF THAT
PARTICULAR BUSINESS OR ENTERPRISE."  THE RECORD BEFORE US, HOWEVER, IS
NOT ADEQUATE FOR RESOLUTION OF THESE IMPORTANT ISSUES.  SEE KENNEDY V.
SILAS MASON CO., 334 U.S. 249, 256-257 (1948).  SUMMARY JUDGMENT WAS
THEREFORE IMPROPER AND WE REMAND FOR FULLER DEVELOPMENT OF THE RECORD
AND FOR FURTHER CONSIDERATION. 

              VACATED AND REMANDED. 

/0/  SECTION 703 OF THE ACT, 78 STAT. 255, 42 U.S.C. 2000E-2,
PROVIDES AS FOLLOWS: 

"(A) IT SHALL BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER-- 

"(1) TO FAIL OR REFUSE TO HIRE OR TO DISCHARGE ANY INDIVIDUAL, OR
OTHERWISE TO DISCRIMINATE AGAINST ANY INDIVIDUAL WITH RESPECT TO HIS
COMPENSATION, TERMS, CONDITIONS, OR PRIVILEGES OF EMPLOYMENT, BECAUSE
OF SUCH INDIVIDUAL'S RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN . .
.

       .          .          .          . 

"(E) NOTWITHSTANDING ANY OTHER PROVISION OF THIS TITLE, (1) IT SHALL
NOT BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER TO HIRE AND
EMPLOY EMPLOYEES . . . ON THE BASIS OF . . . RELIGION, SEX, OR NATIONAL
ORIGIN IN THOSE CERTAIN INSTANCES WHERE RELIGION, SEX, OR NATIONAL
ORIGIN IS A BONA FIDE OCCUPATIONAL QUALIFICATION REASONABLY NECESSARY
TO THE NORMAL OPERATION OF THAT PARTICULAR BUSINESS OR ENTERPRISE.  . .
. " 

MR. JUSTICE MARSHALL, CONCURRING. 

WHILE I AGREE THAT THIS CASE MUST BE REMANDED FOR A FULL DEVELOPMENT
OF THE FACTS, I CANNOT AGREE WITH THE COURT'S INDICATION THAT A "BONA
FIDE OCCUPATIONAL QUALIFICATION REASONABLY NECESSARY TO THE NORMAL
OPERATION OF" MARTIN MARIETTA'S BUSINESS COULD BE ESTABLISHED BY A
SHOWING THAT SOME WOMEN, EVEN THE VAST MAJORITY, WITH PRE-SCHOOL-AGE
CHILDREN HAVE FAMILY RESPONSIBILITIES THAT INTERFERE WITH JOB
PERFORMANCE AND THAT MEN DO NOT USUALLY HAVE SUCH RESPONSIBILITIES. 
CERTAINLY, AN EMPLOYER CAN REQUIRE THAT ALL OF HIS EMPLOYEES, BOTH MEN
AND WOMEN, MEET MINIMUM PERFORMANCE STANDARDS, AND HE CAN TRY TO INSURE
COMPLIANCE BY REQUIRING PARENTS, BOTH MOTHERS AND FATHERS, TO PROVIDE
FOR THE CARE OF THEIR CHILDREN SO THAT JOB PERFORMANCE IS NOT
INTERFERED WITH. 

BUT THE COURT SUGGESTS THAT IT WOULD NOT REQUIRE SUCH UNIFORM
STANDARDS.  I FEAR THAT IN THIS CASE, WHERE THE ISSUE IS NOT SQUARELY
BEFORE US, THE COURT HAS FALLEN INTO THE TRAP OF ASSUMING THAT THE ACT
PERMITS ANCIENT CANARDS ABOUT THE PROPER ROLE OF WOMEN TO BE A BASIS
FOR DISCRIMINATION.  CONGRESS, HOWEVER, SOUGHT JUST THE OPPOSITE
RESULT. 

BY ADDING /1/  THE PROHIBITION AGAINST JOB DISCRIMINATION BASED ON
SEX TO THE 1964 CIVIL RIGHTS ACT CONGRESS INTENDED TO PREVENT EMPLOYERS
FROM REFUSING "TO HIRE AN INDIVIDUAL BASED ON STEREOTYPED
CHARACTERIZATIONS OF THE SEXES."  EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, GUIDELINES ON DISCRIMINATION BECAUSE OF SEX, 29 CFR SEC.
1604.1(A)(1)(II).  SEE BOWE V. COLGATE-PALMOLIVE CO. 416 F.2D 711 (CA7
1969); WEEKS V. SOUTHERN BELL TEL. & TEL. CO., 408 F.2D 228 (CA5
1969).  EVEN CHARACTERIZATIONS OF THE PROPER DOMESTIC ROLES OF THE
SEXES WERE NOT TO SERVE AS PREDICATES FOR RESTRICTING EMPLOYMENT
OPPORTUNITY.  /2/  THE EXCEPTION FOR A "BONA FIDE OCCUPATIONAL
QUALIFICATION" WAS NOT INTENDED TO SWALLOW THE RULE. 

THAT EXCEPTION HAS BEEN CONSTRUED BY THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, WHOSE REGULATIONS ARE ENTITLED TO "GREAT
DEFERENCE," UDALL V. TALLMAN, 380 U.S. 1, 16 (1965), TO BE APPLICABLE
ONLY TO JOB SITUATIONS THAT REQUIRE SPECIFIC PHYSICAL CHARACTERISTICS
NECESSARILY POSSESSED BY ONE ONE SEX.  /3/  THUS THE EXCEPTION WOULD
APPLY WHERE NECESSARY "FOR THE PURPOSE OF AUTHENTICITY OR GENUINENESS"
/4/  IN THE EMPLOYMENT OF ACTORS OR ACTRESSES, FASHION MODELS, AND THE
LIKE.  /5/  IF THE EXCEPTION IS TO BE LIMITED /6/  AS CONGRESS
INTENDED, THE COMMISSION HAS GIVEN IT THE ONLY POSSIBLE CONSTRUCTION. 

WHEN PERFORMANCE CHARACTERISTICS OF AN INDIVIDUAL ARE INVOLVED, EVEN
WHEN PARENTAL ROLES ARE CONCERNED, EMPLOYMENT OPPORTUNITY MAY BE
LIMITED ONLY BY EMPLOYMENT CRITERIS THAT ARE NEUTRAL AS TO THE SEX OF
THE APPLICANT. 

/1/  THE BAN ON DISCRIMINATION BASED ON SEX WAS ADDED TO THE ACT BY
AN AMENDMENT OFFERED DURING THE DEBATE IN THE HOUSE BY REP. SMITH OF
VIRGINIA.  110 CONG.REC.  2577. 

/2/  SEE NEAL V. AMERICAN AIRLINES, INC., 1 CCH EMPLOYMENT PRACTICES
GUIDE (EEOC 1968); COLVIN V. PIEDMONT AVIATION, INC., 1 CCH EMPLOYMENT
PRACTICES GUIDE PARA. 6003 (EEOC 1968); 110 CONG.REC.  2578 (REMARKS OF
REP. BASS). 

/3/  THE COMMISSION'S REGULATIONS PROVIDE: 

"SEX AS A BONA FIDE OCCUPATIONAL QUALIFICATION. 

"(A) THE COMMISSION BELIEVES THAT THE BONA FIDE OCCUPATIONAL
QUALIFICATION EXCEPTION AS TO SEX SHOULD BE INTERPRETED NARROWLY. 
LABELS-- 'MEN'S JOBS' AND 'WOMEN'S JOBS'-- TEND TO DENY EMPLOYMENT
OPPORTUNITIES UNNECESSARILY TO ONE SEX OR THE OTHER. 

"(1) THE COMMISSION WILL FIND THAT THE FOLLOWING SITUATIONS DO NOT
WARRANT THE APPLICATION OF THE BONA FIDE OCCUPATIONAL QUALIFICATION
EXCEPTION: 

"(I) THE REFUSAL TO HIRE A WOMAN BECAUSE OF HER SEX, BASED ON
ASSUMPTIONS OF THE COMPARATIVE EMPLOYMENT CHARACTERISTICS OF WOMEN IN
GENERAL.  FOR EXAMPLE, THE ASSUMPTION THAT THE TURNOVER RATE AMONG
WOMEN IS HIGHER THAN AMONG MEN. 

"(II) THE REFUSAL TO HIRE AN INDIVIDUAL BASED ON STEREOTYPED
CHARACTERIZATIONS OF THE SEXES.  SUCH STEREOTYPES INCLUDE, FOR EXAMPLE,
THAT MEN ARE LESS CAPABLE OF ASSEMBLING INTRICATE EQUIPMENT; THAT WOMEN
ARE LESS CAPABLE OF AGGRESSIVE SALESMANSHIP.  THE PRINCIPLE OF NON
DISCRIMINATION REQUIRES THAT INDIVIDUALS BE CONSIDERED ON THE BASIS OF
INDIVIDUAL CAPACITIES AND NOT ON THE BASIS OF ANY CHARACTERISTICS
GENERALLY ATTRIBUTED TO THE GROUP. 

"(III) THE REFUSAL TO HIRE AN INDIVIDUAL BECAUSE OF THE PREFERENCES
OF OF CO-WORKERS, THE EMPLOYER, CLIENTS OR CUSTOMERS EXCEPT AS COVERED
SPECIFICALLY IN SUBPARAGRAPH (2) OF THIS PARAGRAPH. 

"(IV) THE FACT THAT THE EMPLOYER MAY HAVE TO PROVIDE SEPARATE
FACILITIES FOR A PERSON OF THE OPPOSITE SEX WILL NOT JUSTIFY
DISCRIMINATION UNDER THE BONA FIDE OCCUPATIONAL QUALIFICATION EXCEPTION
UNLESS THE EXPENSE WOULD BE CLEARLY UNREASONABLE. 

"(2) WHERE IT IS NECESSARY FOR THE PURPOSE OF AUTHENTICITY OR
GENUINESS, THE COMMISSION WILL CONSIDER SEX TO BE A BONA FIDE
OCCUPATIONAL QUALIFICATION, E.G., AN ACTOR OR ACTRESS. 

"(B)(1) MANY STATES HAVE ENACTED LAWS OR PROMULGATED ADMINISTRATIVE
REGULATIONS WITH RESPECT TO THE EMPLOYMENT OF FEMALES.  AMONG THESE
LAWS ARE THOSE WHICH PROHIBIT OR LIMIT THE EMPLOYMENT OF FEMALES, E.G.,
THE EMPLOYMENT OF FEMALES IN CERTAIN OCCUPATIONS, IN JOBS REQUIRING THE
LIFTING OR CARRYING OF WEIGHTS EXCEEDING CERTAIN PRESCRIBED LIMITS,
DURING CERTAIN HOURS OF THE NIGHT, OF FOR MORE THAN A SPECIFIED NUMBER
OF HOURS PER DAY OR PER WEEK. 

"(2) THE COMMISSION BELIEVES THAT SUCH STATE LAWS AND REGULATIONS,
ALTHOUGH ORIGINALLY PROMULGATED FOR THE PURPOSE OF PROTECTING FEMALES,
HAVE CEASED TO BE RELEVANT TO OUR TECHNOLOGY OR TO THE EXPANDING ROLE
OF FEMALE WORKER IN OUR ECONOMY.  THE COMMISSION HAS FOUND THAT SUCH
LAWS AND REGULATIONS DO NOT TAKE INTO ACCOUNT THE CAPACITIES,
PREFERENCES, AND ABILITIES OF INDIVIDUAL FEMALES AND TEND TO
DISCRIMINATE RATHER THAN PROTECT.  ACCORDINGLY, THE COMMISSION HAS
CONCLUDED THAT SUCH LAWS AND REGULATIONS CONFLICT WITH TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964 AND WILL NOT BE CONSIDERED A DEFENSE TO AN
OTHERWISE ESTABLISHED UNLAWFUL EMPLOYMENT PRACTICE OR AS A BASIS FOR
THE APPLICATION OF THE BONA FIDE OCCUPATIONAL QUALIFICATION
EXCEPTION."  29 CFR SEC. 1604.1. 

/4/  29 CFR SEC. 1604.1(A)(2), N. 3, SUPRA. 

/5/  SEE 110 CONG.REC.  7217 (MEMORANDUM OF SENS.  CLARK AND CASE). 

/6/  110 CONG.REC.  7213 (MEMORANDUM OF SENS.  CLARK AND CASE). 

WILLIAM L. ROBINSON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE JACK GREENBERG, JAMES M. NABRIT, III, NORMAN C. AMAKER,
AND EARL M. JOHNSON. 

DONALD T. SENTERFITT ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE WILLIAM Y. AKERMAN, PAUL A. PORTER, VICTOR H. KRAMER,
DENNIS G. LYONS, JAMES A. DOBKIN, CLARK C. VOGEL, JAMES T. ELLISON, J.
THOMAS CARDWELL, AND GEORGE T. EIDSON, JR. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL LEONARD, ROBERT T. MOORE, AND
STANLEY P. HEBERT. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY DOROTHY KENYON,
NORMAN DORSEN, PAULI MURRAY, AND MELVIN L. WULF FOR THE AMERICAN CIVIL
LIBERTIES UNION; BY GILBERT FELDMAN FOR THE AIR LINE STEWARDS AND
STEWARDESSES ASSOCIATION, LOCAL 550, TRANSPORT WORKERS UNION OF
AMERICA, AFL-CIO; BY JACOB D. HYMAN, FAITH A. SEIDENBERG, MARGUERITE
REWALT, AND PHINEAS INDRITZ FOR NOW LEGAL DEFENSE AND EDUCATION FUND,
INC.; AND BY SYLVIA ELLISON FOR HUMAN RIGHTS FOR WOMEN, INC.
..END :






PICCIRILLO V. NEW YORK, 400 U.S. 548 


       PICCIRILLO V. NEW YORK

        CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

        NO. 97.  ARGUED NOVEMBER 9, 1970-- DECIDED JANUARY 25,
1971 


WRIT OF CERTIORARI, GRANTED TO RESOLVE QUESTION WHETHER
"TRANSACTIONAL" RATHER THAN "USE" IMMUNITY IS CONSTITUTIONALLY REQUIRED
TO COMPEL A WITNESS TO TESTIFY BEFORE A NEW YORK GRAND JURY, IS
DISMISSED AS IMPROVIDENTLY GRANTED IN LIGHT OF ANOTHER DECISION BY
HIGHEST STATE COURT HOLDING THAT TRANSACTIONAL IMMUNITY IS REQUIRED IN
NEW YORK AND THAT ITS EARLIER DECISION IN THE INSTANT CASE MAY HAVE
RESTED ON THAT PREMISE. 

24 N.Y.2D 598, 249 N.E.2D 412, CERTIORARI DISMISSED. 

PER CURIAM. 

THE OCCASION FOR GRANTING THE WRIT IN THIS CASE WAS TO RESOLVE THE
IMPORTANT QUESTION WHETHER IT IS NECESSARY TO ACCORD "TRANSACTIONAL"
IMMUNITY, SEE COUNSELMAN V. HITCHCOCK, 142 U.S. 547 (1892), TO COMPEL A
WITNESS TO GIVE TESTIMONY BEFORE A STATE GRAND JURY OVER HIS CLAIM OF
THE PRIVILEGE AGAINST SELF-INCRIMINATION, OR WHETHER MERE "USE"
IMMUNITY SUFFICES TO THAT END, SEE, E.G., MURPHY V. WATERFRONT COMM'N,
378 U.S. 52 (1964); UNIFORMED SANITATION MEN ASSN. V. COMMISSIONER OF
SANITATION OF THE CITY OF NEW YORK, 426 F.2D 619 (CA2 1970). 

AFTER CONSIDERING THE BRIEFS AND ORAL ARGUMENTS OF THE PARTIES ON
THIS WRIT, WE HAVE REACHED THE CONCLUSION THAT THE DECISION OF THE NEW
YORK COURT OF APPEALS IN GOLD V. MENNA, 25 N.Y.2D 475, 255 N.E.2D 235
(1969), WHICH MAKES CLEAR THAT TRANSACTIONAL IMMUNITY IS REQUIRED IN
NEW YORK AND ALSO INDICATES THAT SUCH COURT'S EARLIER DECISION IN THE
CASE BEFORE US, PEOPLE V. LA BELLO, 24 N.Y.2D 598, 249 N.E.2D 412
(1969), MAY HAVE RESTED ON THAT PREMISE, MAKES THIS CASE AN
INAPPROPRIATE VEHICLE FOR DECIDING A QUESTION OF SUCH FAR-REACHING
IMPORTANCE. 

WITH THE INTERVENING DECISION IN GOLD, NO CONTROVERSY ANY LONGER
EXISTS BETWEEN THE PARTIES AS TO THE QUESTION WHICH IMPELLED US TO
GRANT THE WRIT; WHETHER, IN THE CIRCUMSTANCES INVOLVED IN THIS CASE,
PICCIRILLO WAS ENTITLED TO "USE" OR "TRANSACTIONAL" IMMUNITY.  WHILE IT
IS TRUE, THAT TECHNICALLY SPEAKING, ISSUES REMAIN IN THE CASE
CONCERNING THE KIND OF IMMUNITY REQUIRED BY FEDERAL LAW AND, IF IT BE
"TRANSACTIONAL" RATHER THAN "USE" IMMUNITY IN SUCH A CASE AS THIS, THE
PROPER SCOPE OF SUCH IMMUNITY, BOTH ISSUES ARISE ONLY AGAINST STERILE
BACKGROUND OF AGREEMENT BETWEEN THE PARTIES THAT PICCIRILLO IS ENTITLED
TO "TRANSACTIONAL" IMMUNITY UNDER STATE LAW.  THUS, OUR DETERMINATION
UPON THE FUNDAMENTAL CONSTITUTIONAL QUESTION UNDERLYING THIS CASE WOULD
BE IN NO SENSE NECESSARY TO ITS RESOLUTION IN THIS INSTANCE. 

IN THIS POSTURE OF AFFAIRS, WE CONCLUDE THAT THE WRIT OF CERTIORARI
SHOULD BE DISMISSED AS IMPROVIDENTLY GRANTED. 

     IT IS SO ORDERED. 

MR. JUSTICE BLACK DISSENTS FROM THE DISMISSAL OF THIS WRIT AS
IMPROVIDENTLY GRANTED.  HE WOULD VACATE THE JUDGMENT BELOW AND REMAND
THE CASE TO THE NEW YORK COURT OF APPEALS FOR RECONSIDERATION IN LIGHT
OF ITS LATER OPINION IN GOLD V. MENNA, 25 N.Y.2D 475, 255 N.E.2D 235. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MARSHALL, CONCURS,
DISSENTING. 

I DO NOT APPROVE DISMISSAL OF THIS WRIT AS IMPROVIDENTLY GRANTED. 

PETITIONER WAS INDICTED FOR ASSAULT COMMITTED BY THE USE OF TIRE
IRONS.  HE PLEADED GUILTY AND WAS SENTENCED TO IMPRISONMENT.  SHORTLY
THEREAFTER A GRAND JURY WAS IMPANELED TO INVESTIGATE THE ASSAULT ON THE
VICTIM AND THE CONSPIRACIES ARISING IN CONNECTION WITH IT.  PETITIONER,
WHILE STILL SERVING THE SENTENCE ON THE ASSAULT CONVICTION, WAS CALLED
TO TESTIFY BEFORE THE GRAND JURY. 

AFTER REFUSING TO TESTIFY, PETITIONER WAS GRANTED IMMUNITY.  HE THEN
TESTIFIED TO THE ASSAULT WHICH HE HAD PERPETRATED BY THE USE OF TIRE
IRONS.  FOUR DAYS LATER A POLICE OFFICER TESTIFIED BEFORE THE GRAND
JURY THAT AFTER CHASE, HE HAD ARRESTED PETITIONER AND ANOTHER, AND
THEREUPON HAD TAKEN THE TIRE IRONS FROM THEM.  THE OFFICER ALSO
TESTIFIED THAT FOLLOWING PETITIONER'S ARREST PETITIONER HAD OFFERED THE
OFFICER A BRIBE TO CHANGE HIS TESTIMONY.  PETITIONER WAS SUBSEQUENTLY
INDICTED BY THE GRAND JURY FOR BRIBERY, AND, FOLLOWING AN UNSUCCESSFUL
MOTION TO DISMISS BASED ON THE GRANT OF IMMUNITY, HE PLEADED GUILTY TO
ATTEMPTED BRIBERY.  THE NEW YORK COURT OF APPEALS HELD FOUR-TO-THREE
THAT THE NEW YORK IMMUNITY STATUTE ONLY PROHIBITED USE OF TESTIMONY AND
THE FRUITS OF THE TESTIMONY IN A SUBSEQUENT CRIMINAL PROCEEDING AND
THAT THE POLICE OFFICER'S TESTIMONY WAS IN NO WAY DERIVED FROM ANYTHING
PETITIONER SAID.  24 N.Y.2D 598, 249 N.E.2D 412. 

COUNSELMAN V. HITCHCOCK, 142 U.S. 547, HELD THAT ONCE IMMUNITY WAS
GRANTED, IT PROTECTED THE WITNESS AGAINST PROSECUTION NOT ONLY FOR A
CRIME THAT RELATES TO THE PRECISE TESTIMONY GIVEN BUT ALSO FOR THE
FRUITS OF SUCH TESTIMONY.  ID., AT 564-565.  BUT THE COURT WENT
FURTHER:  "IN VIEW OF THE CONSTITUTIONAL PROVISION, A STATUTORY
ENACTMENT, TO BE VALID, MUST AFFORD ABSOLUTE IMMUNITY AGAINST FUTURE
PROSECUTION FOR THE OFFENSE TO WHICH THE QUESTION RELATES."  ID., AT
586.  IN BROWN V. WALKER, 161 U.S. 591, WHICH INVOLVED ANOTHER FEDERAL
PROSECUTION, THE IMMUNITY STATUTE PROVIDED THAT THE WITNESS WOULD BE
PROTECTED "ON ACCOUNT OF ANY TRANSACTION . . . CONCERNING WHICH HE MAY
TESTIFY."  ID., AT 594.  THE COURT HELD THAT THE IMMUNITY OFFERED WAS
COTERMINOUS WITH THE PRIVILEGE AND THAT THE WITNESS COULD THEREFORE BE
COMPELLED TO TESTIFY.  THUS, "TRANSACTIONAL IMMUNITY" BECAME PART OF
THE FABRIC OF OUR FEDERAL CONSTITUTIONAL LAW.  SEE ULLMANN V. UNITED
STATES, 350 U.S. 422, 438. 

NOW THAT THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT IS
APPLICABLE TO THE STATES, MALLOY V. HOGAN, 378 U.S. 1, THE SAME
IMMUNITY AGAINST STATE PROSECUTIONS MUST BE GRANTED AGAINST FEDERAL
PROSECUTIONS.  ID., AT 10-11.  /1/ 

SUBSEQUENT TO PETITIONER'S CASE THE NEW YORK COURT OF APPEALS
UNANIMOUSLY CONCLUDED THAT THEIR STATUTE PROVIDES TRANSACTIONAL
IMMUNITY.  GOLD V. MENNA, 25 N.Y.2D 475, 255 N.E.2D 235.  NEVERTHELESS,
THAT COURT ALSO CONCLUDED THAT PETITIONER WOULD NOT HAVE BENEFITED FROM
THE CHANGE OF LAW BECAUSE HE GAVE NO TESTIMONY WHICH RELATED TO THE
OFFENSE FOR WHICH HE WAS PROSECUTED.  ID., AT 481 N. 1, 255 N.E.2D,AT
238 N. 1.  THAT APPROACH TO THE PROBLEM IS NOT IN KEEPING WITH THE
GENEROUS INTERPRETATIONS WHICH THE FIFTH AMENDMENT HAS HERETOFORE
RECEIVED BY THIS COURT. 

PETITIONER HAD JUST TESTIFIED TO THE GRAND JURY CONCERNING FACTS
WHICH PROVIDED THE UNDERLYING BASIS FOR THE BRIBERY CHARGE.  THE GRAND
JURY KNEW PETITIONER HAD ASSAULTED A MAN WITH TIRE IRONS BECAUSE
PETITIONER HIMSELF TOLD THEM SO.  THE TIRE IRONS WERE THE "EVIDENCE"
WHICH ACCORDING TO THE POLICE OFFICER PETITIONER HAD TRIED TO BRIBE HIM
"TO GET RID OF."  THEY WERE THE SAME TIRE IRONS USED IN THE ASSAULT FOR
WHICH HE WAS CONVICTED AND SENTENCED, NOT TIRE IRONS USED TO COMMIT
ANOTHER ASSAULT.  MOREOVER, THE BRIBERY CHARGE GREW OUT OF
CONVERSATIONS WHICH PETITIONER HAD WITH THE POLICE OFFICER THE DAY OF
HIS ARRAIGNMENT ON THE ASSAULT CHARGE.  IT SEEMS OBVIOUS THAT, IF THE
TRANSACTIONAL TEST IS TO BE HONORED, THIS IS ONE OF THE CLEAREST
INSTANCES IN WHICH TO DO SO. 

ACCORDINGLY, I WOULD REVERSE THE DECISION BELOW. 

/1/  THE PRESENT CASE IS NOT COMPLICATED BY THE QUESTION WHETHER
STATE IMMUNITY MUST EXTEND IMMUNITY AGAINST FEDERAL PROSECUTION.  SEE
MURPHY V. WATERFRONT COMM'N, 378 U.S. 52.  CF. ABBATE V. UNITED STATES,
359 U.S. 187. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

THIS CASE PRESENTS THE QUESTION OF THE LIMITATIONS REQUIRED BY THE
FIFTH AMDENMENT'S SELF-INCRIMINATION CLAUSE UPON SUBSEQUENT STATE
PROSECUTIONS OF AN INDIVIDUAL COMPELLED BY THE STATE TO ANSWER
INCRIMINATING QUESTIONS.  SINCE, IN MY VIEW, THIS CASE PRESENTS A
RECORD THAT COMPELS US TO DECIDE THAT QUESTION, I CANNOT AGREE THAT THE
COURT MAY DISMISS THE WRIT OF CERTIORARI AS IMPROVIDENTLY GRANTED.  I
THEREFORE REACH THE MERITS AND WOULD REVERSE THE JUDGMENT OF CONVICTION
AND REMAND THE CASE WITH DIRECTIONS TO DISMISS THE INDICTMENT. 

I 

PETITIONER AND A CODEFENDANT WERE ARRESTED ON MARCH 19, 1964, BY A
NEW YORK POLICE OFFICER, WILLIAM SEWELL, FOR ASSAULTING ONE GRAHAM, A
HOUSING CONTRACTOR.  PATROLMAN SEWALL RECOVERED THE TIRE IRONS USED IN
THE ASSAULT FROM PETITIONER AND THE CODEFENDANT AT THE TIME OF THE
ARREST.  THE FOLLOWING DAY, THE TWO DEFENDANTS WERE ARRAIGNED AND
RELEASED ON BOND.  BUT BEFORE LEAVING THE COURTHOUSE, THEY APPROACHED
PATROLMAN SEWALL AND OFFERED HIM $1,000 OR $1,500 TO DISPOSE OF THE
SEIZED WEAPONS.  THE HONEST SEWELL REFUSED THE OFFER AND IMMEDIATELY
NOTIFIED THE DISTRICT ATTORNEY OF THE BRIBE ATTEMPT.  AT THE REQUEST OF
THE PROSECUTOR, SEWELL LATER ATTENDED A MEETING WITH PETITIONER TO
CONFIRM THE BRIBE OFFER.  THE RELEVANT NARRATIVE SKIPS A YEAR DURING
WHICH PETITIONER AND HIS CODEFENDANT WERE INDICTED FOR ATTEMPTED
ASSAULT, PLEADED GUILTY, AND WERE SENTENCED TO JAIL.  ON MARCH 18,
1965, A YEAR AFTER THE ASSAULT AND BRIBERY ATTEMPT, PETITIONER WAS
SUMMONED FROM JAIL TO APPEAR BEFORE A GRAND JURY INVESTIGATING THE
POSSIBILITY OF CRIMINAL CONSPIRACIES IN CONNECTION WITH THE ASSAULT ON
GRAHAM.  THE PROSECUTOR, AFTER INFORMING PETITIONER OF THE PURPOSE OF
THE INVESTIGATION, TOLD HIM THAT THE GRAND JURY WAS GOING TO VOTE ON
WHETHER TO GIVE PETITIONER IMMUNITY AND EXPLAINED THE MEANING OF
IMMUNITY TO PETITIONER AS FOLLOWS: 

"I AM GOING TO ASK THIS GRAND JURY TO VOTE ON THE QUESTION OF GIVING
YOU IMMUNITY AND UNDER PENAL LAW SECTION 2447 FOR THE TESTIMONY THAT
YOU WILL GIVE IN THIS GRAND JURY AND THAT MEANS ANYTHING THAT I ASK YOU
AND ANY ANSWERS THAT YOU GIVE IN ANSWER TO MY QUESTIONS IF IT CONNECTS
YOU WITH THE CRIME YOU CANNOT BE PROSECUTED FOR IT.  THAT'S IMMUNITY,
DO YOU UNDERSTAND THAT?"  APP. 33.  WHEN THE GRAND JURY VOTED TO GRANT
IMMUNITY, THE PETITIONER SAID THAT HE WOULD ANSWER THE PROSECUTOR'S
QUESTIONS, BUT THAT HE WOULD LIKE TO CONSULT HIS LAWYER.  THE
PROSECUTOR REFUSED PERMISSION, STATING: 

"UNDER THESE CIRCUMSTANCES YOU ARE NOT A DEFENDANT, YOU ARE A WITN
SS, YOU HAVE BEEN GIVEN IMMUNITY.  THAT MEANS YOU CANNOT BE
PROSECUTED.  YOUR RIGHTS ARE FULLY PROTECTED AND THERE IS NO REASON FOR
YOUR CONFERRING WITH YOUR ATTORNEY, DO YOU UNDERSTAND THAT?"  APP. 34. 
/1/ PETITIONER THEN ANSWERED ALL QUESTIONS ADMITTING, INTER ALIA, THAT
HE AND HIS CODEFENDANT HAD BEEN HIRED TO ASSAULT AND HAD IN FACT
ASSAULTED GRAHAM; THAT THE TIRE IRONS IN THE POSSESSION OF THE POLICE
WERE THE INSTRUMENTS THEY HAD USED IN THE ASSAULT; AND THAT THEY HAD
BEEN SURPRISED IN THE MIDST OF THE ASSAULT AND HAD RUN AWAY BUT HAD
BEEN CAUGHT BY THE POLICE.  THE BRIBERY ATTEMPT WAS NOT MENTIONED. 

FOUR DAYS LATER, PATROLMAN SEWELL APPEARED BEFORE THE SAME GRAND
JURY AND TESTIFIED ABOUT THE BRIBE ATTEMPT.  SEVERAL MONTHS THEREAFTER,
THE GRAND JURY INDICTED PETITIONER AND HIS CODEFENDANT FOR OFFERING A
BRIBE.  PETITIONER MOVED TO DISMISS THE INDICTMENT ON THE GROUND THAT
THE CRIME CHARGED INVOLVED SUBJECT MATTER FOR WHICH PETITIONER HAD BEEN
GRANTED IMMUNITY, AS REQUIRED BY THE FEDERAL CONSTITUTION.  WHEN THE
TRIAL COURT DENIED THE MOTION, PETITIONER PLEADED GUILTY.  THE NEW YORK
COURT OF APPEALS AFFIRMED THE CONVICTION, THREE JUDGES DISSENTING. 
PEOPLE V. LA BELLO, 24 N.Y.2D 598, 249 N.E.2D 412 (1969).  THE NEW YORK
COURT INTERPRETED USE OF THE WINTESS' TESTIMONY AND ANY EVIDENCE
DERIVED THEREFROM."  24 N.Y.2D,AT 604, 249 N.E.2D,AT 416.  AFTER
HOLDING THAT THIS "USE" IMMUNITY SATISFIED THE REQUIREMENTS OF THE
FIFTH AMENDMENT, THE NEW YORK COURT AFFIRMED PETITIONER'S CONVICTION
BASED ON ITS FINDINGS THAT "(WHATEVER EVIDENCE MIGHT HAVE BEEN REVEALED
BY THE APPELLANTS' TESTIMONY WAS WHOLLY INSUBSTANTIAL" AND THAT "THE
INDICTMENT WAS NOT THE PRODUCT OF THAT TESTIMONY."  24 N.Y.2D,AT 605,
249 N.E.2D,AT 416. 

SEVEN MONTHS AFTER ITS DECISION IN PETITIONER'S CASE, THE NEW YORK
COURT OF APPEALS ON DECEMBER 4, 1969, IN A CASE WHOLLY UNRELEATED TO
PETITIONER'S, REVERSED ITSELF ON THE PROPER INTERPRETATION OF THE NEW
YORK IMMUNITY STATUTE, HOLDING THAT THE NEW YORK STATUTE GRANTED
"IMMUNITY FROM PROSECUTION FOR ANY CRIME REVEALED BY A WITNESS'
TESTIMONY BEFORE A GRAND JURY."  GOLD V. MENNA, 25 N.Y.2D 475, 481, 255
N.E.2D 235, 238.  IN A FOOTNOTE TO GOLD, THE NEW YORK COURT STATED THAT
EVEN UNDER ITS NEW INTERPRETATION, PETITIONER'S CONVICTION WAS
CORRECTLY AFFIRMED BECAUSE HE AND HIS CODEFENDANT "GAVE NO TESTIMONY
WHICH RELATED OR PERTAINED TO THE OFFENSE FOR WHICH THEY WERE
PROSECUTED AND OF WHICH THEY WERE CONVICTED."  25 N.Y.2D,AT 481 N. 1,
255 N.E.2D,AT 238 N. 1.  WE GRANTED CERTIORARI, 397 U.S. 933 (1970). 

        II 

THE FACT THAT THE NEW YORK COURT OF APPEALS HAS REVERSED ITSELF AND
CHANGED ITS INTERPRETATION OF THE NEW YORK IMMUNITY STATUTE TO GRANT
"TRANSACTIONAL" IMMUNITY, AND NOT MERELY "USE" IMMUNITY AS THAT COURT
HELD WHEN IT AFFIRMED PETITIONER'S CONVICTION, PROVIDES NO BASIS FOR
DISMISSING THE WRIT OF CERTIORARI AS IMPROVIDENTLY GRANTED.  THE STATE
COURT'S INTERPRETATION OF STATE LAW IS AT BEST ONLY TANGENTIALLY
RELATED TO THE FEDERAL CONSTITUTIONAL QUESTION PRESENTED IN THIS CASE. 
THE PETITIONER HERE, UPON BEING TOLD "(YOU HAVE BEEN GIVEN IMMUNITY. 
THAT MEANS YOU CANNOT BE PROSECUTED," PROCEEDED TO TESTIFY AND ANSWER
ALL QUESTIONS PUT TO HIM ABOUT THE GRAHAM ASSAULT.  SUBSEQUENTLY, HE
WAS INDICTED AND CONVICTED FOR THE BRIBERY ATTEMPT WHICH AROSE OUT OF
THAT ASSAULT.  THE NEW YORK COURTS HAVE AFFIRMED PETITIONER'S
CONVICTION FOR BRIBERY, HOLDING THAT THE IMMUNITY GRANTED BY THE STATE
STATUTE DID NOT BAR THE PRESENT CONVICTION.  AT THAT POINT, THE
RELEVANCE TO THE CONSTITUTIONAL QUESTION OF THE SCOPE OF IMMUNITY
AFFORDED BY THE STATE COURT'S INTERPRETATION OF STATE LAW ENDED.  THE
QUESTION FOR THIS COURT IS WHETHER THE FIFTH AMENDMENT, AS APPLIED TO
THE STATES BY THE FOURTEENTH AMENDMENT, PERMITS THE PRESENT CONVICTION
TO STAND IN LIGHT OF THE SUBSTANCE OF THE COMPELLED TESTIMONY AND THE
NATURE AND BASIS OF THAT CONVICTION.  THAT IS A MATTER OF FEDERAL
CONSTITUTIONAL LAW WHICH DOES NOT DEPEND UPON THE INTERPRETATION OF THE
NEW YORK IMMUNITY STATUTE.     THE COURT'S WHOLLY WRONG FOCUS UPON THE
PARTICULAR STATE IMMUNITY STATUTE /2/  INVOLVED RESULTS FROM ITS
FAILURE TO DISTINGUISH TWO DIFFERENT PROCEDURAL POSTURES IN WHICH THE
QUESTION OF THE SCOPE OF IMMUNITY REQUIRED BY THE FIFTH AMENDMENT CAN
BE RAISED.  FIRST, AN INDIVIDUAL MAY RELY ON THE FIFTH AMENDMENT
PRIVILEGE AND REFUSE TO ANSWER A QUESTION AFTER HE HAS BEEN GRANTED
IMMUNITY PURSUANT TO AN IMMUNITY STATUTE AND ORDERED TO RESPOND.  IF HE
IS THEN HELD IN CONTEMPT (OR OTHERWISE PENALIZED) FOR HIS REFUSAL TO
ANSWER, THE QUESTION PRESENTED IN REVIEWING THE CONTEMPT CONVICTION (OR
OTHER SANCTION) IS WHETHER THE STATUTORY GRANT OF IMMUNITY IS CO
EXTENSIVE WITH THE SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION. 
MALLORY V. HOGAN, 378 U.S. 1 (1964); COUNSELMAN V. HITCHCOCK, 142 U.S.
547 (1892).  IF THE IMMUNITY GRANTED IS FOUND TO BE CO-EXTENSIVE WITH
THE PRIVILEGE, THEN THE WITNESS' REFUSAL TO ANSWER BASED ON THE
PRIVILEGE WAS UNJUSITIFED, AND THE FINDING OF CONTEMPT IS PROPER. 
BROWN V. WALKER, 161 U.S. 591 (1896).  IF, ON THE OTHER HAND, THE
IMMUNITY GRANTED BY THE STATUTE FALLS SHORT OF THE CONSTITUTIONAL
REQUIREMENT, THE WITNESS PROPERLY RELIED UPON HIS CONSTITUTIONAL
PRIVILEGE, AND ANY SANCTION IMPOSED CANNOT STAND.  MCCARTHY V.
ARNDSTEIN, 266 U.S. 34, 42 (1924).  IN THESE CASES, ANALYSIS THEREFORE
NECESSARILY FOCUSES ON THE PARTICULAR PROVISIONS OF THE IMMUNITY
STATUTE IN QUESTION AND ON THE NUANCES OF ITS INTERPRETATION BECAUSE
THERE IS NOTHING ELSE BEFORE THE COURT.  NO TESTIMONY HAS YET BEEN
COMPELLED, AND THERE HAS BEEN NO SUBSEQUENT PROSECUTION IN ANY WAY
RELATED TO COMPELLED TESTIMONY.  MOST OF THE CASES IN WHICH THIS COURT
HAS CONSIDERED QUESTIONS OF IMMUNITY FALL INTO THIS CATEGORY, /3/  AS
DO THE THREE CASES OTHER THAN THE PRESENT CASE CITED IN THE COURT'S PER
CURIAM OPINION. 

THE SECOND CLASS OF CASES, REPRESENTED BY THE PRESENT ONE, INVOLVES
CASES IN WHICH AN INDIVIDUAL IS GRANTED IMMUNITY, PROCEEDS TO TESTIFY,
AND IS THEN PROSECUTED AND CONVICTED FOR AN OFFENSE RELATED TO THAT
TESTIMONY.  ONCE THE CONVICTION IS UPHELD UNDER THE IMMUNITY STATUTE,
THE QUESTION IN THESE CASES BECOMES, NOT WHETHER THE STATUTE GRANTS
ADEQUATE IMMUNITY, BUT, RATHER, WHETHER THE CONVICTION INVOLVED, GIVEN
THE SUBSTANCE OF THE COMPELLED TESTIMONY, FALLS WITHIN THE
CONSTITUTIONALLY REQUIRED IMMUNITY.  THIS DECISION, OF COURSE, MUST BE
MADE ON THE BASIS OF FEDERAL STANDARDS UNDER THE FIFTH AMENDMENT. 
MALLORY V. HOGAN, SUPRA. 

SINCE THE PRESENT CASE FALLS INTO THE SECOND GROUP OF CASES, ANY
UNCERTAINTY OVER THE INTERPRETATION OF THE STATE IMMUNITY STATUTE HAS
LITTLE BEARING ON THE QUESTION WHETHER THIS COURT, HAVING AGREED TO
HEAR THE CASE, OUGHT TO DECIDE THE MERITS.  WHAT IS RELEVANT IS THAT
THE PRESENT CASE COMES TO THIS COURT WITH A COMPLETE FACTUAL RECORD
RAISING THE CONSITUTIONAL QUESTION OF THE SCOPE OF IMMUNITY REQUIRED BY
THE FIFTH AMENDMENT PRIVILEGE.  IT IS WORTH NOTING THAT CASES FALLING
IN THE FIRST CLASS PRESENT THE COURT WITH A BARE RECORD, CONSISTING OF
NO MORE THAN THE TEXT OF THE IMMUNITY STATUTE IN QUESTION AND THE
WITNESS' REFUSAL TO ANSWER A QUESTION.  WITHOUT A FACTUAL RECORD, THE
COURT IS REQUIRED TO DECIDE "ABSTRACT CONTROVERSIES) OVER THE USE OF .
. . WORDS," REGAL KNITWEAR CO. V. NLRB, 324 U.S. 9, 15 (1945), EVEN
THOUGH THE COURT HAS LONG RECOGNIZED THAT IMPORTANT CONSTITUTIONAL
ISSUES ARE BEST DECIDED ON THE BASIS OF FACTUAL RECORDS WHICH TENDER
THE "UNDERLYING CONSTITUTIONAL ISSUES IN CLEAN-CUT AND CONCRETE FORM." 
RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 584 (1947).  THE ABSENCE
OF SUCH A RECORD IS PARTICULARLY UNFORTUNATE IN THESE FIFTH AMENDMENT
CASES BECAUSE THE CONSTITUTIONAL ISSUE POSED DEPENDS UPON A JUDGMENT AS
TO HOW BROAD A PROTECTION IS NECESSARY TO SERVE THE VALUES, PURPOSES,
AND POLICIES UNDERLYING THE FIFTH AMENDMENT.  A FACTUAL RECORD SHOWING,
FOR EXAMPLE, THE SUBSTANCE OF THE INDIVIDUAL'S COMPELLED TESTIMONY, THE
WAY THAT TESTIMONY WAS SUBSEQUENTLY USED BY THE PROSECUTOR, AND THE
CRIME FOR WHICH THE INDIVIDUAL WAS ULTIMATELY PROSECUTED, PROVIDES
IMPORTANT CONSIDERATIONS TO ANCHOR AND INFORM THE CONSTITUTIONAL
JUDGMENT. 

UNLIKE MOST OF THE CASES IN WHICH THIS COURT HAS CONSIDERED THE
SCOPE OF IMMUNITY REQUIRED BY THE FIFTH AMENDMENT, THE PRESENT CASE
OFFERS THE COURT THAT FACTUAL BACKGROUND. 

IN THE NATURE OF A CONFESSION AND AVOIDANCE, THE PER CURIAM CONCEDES
THAT THE ISSUES "CONCERNING THE KIND OF IMMUNITY REQUIRED BY FEDERAL
LAW AND, IF IT BE 'TRANSACTIONAL' RATHER THAN 'USE' IMMUNITY IN SUCH A
CASE AS THIS, THE PROPER SCOPE OF SUCH IMMUNITY" ARE PRESENTED BY
PETITIONER'S CASE, BUT OFFERS THREE STATEMENTS IN SUPPORT OF
DISMISSAL.  FIRST, THE COURT STATES THAT "NO CONTROVERSY ANY LONGER
EXISTS BETWEEN THE PARTIES AS TO THE QUESTION WHICH IMPELLED US TO
GRANT THE WRIT:  WHETHER, IN THE CIRCUMSTANCES INVOLVED IN THIS CASE,
PICCIRILLO WAS ENTITLED TO 'USE' OR 'TRANSACTIONAL' IMMUNITY."  AS THE
FIRST SENTENCE OF THE PER CURIAM ITSELF RECOGNIZES, THE QUESTION WHICH
IMPELLED US TO GRANT THE WRIT WAS WHETHER THE FEDERAL CONSTITUTION
REQUIRES "USE" OR "TRANSACTIONAL" IMMUNITY, AS THOSE TERMS HAVE BEEN
DEFINED IN FEDERAL CONSTITUTIONAL LAW.  THE PARTIES HAVE ALWAYS
DISAGREED AND CONTINUE TO DISAGREE OVER THAT QUESTION, /4/  THUS THE
COURT'S STATEMENT THAT "NO CONTROVERSY ANY LONGER EXISTS . . . AS TO
(THAT) QUESTION" IS SIMPLY CONTRARY TO FACT. 

THE COURT THEN SUGGESTS THAT THE "AGREEMENT BETWEEN THE PARTIES THAT
PICCIRILLO IS ENTITLED TO 'TRANSACTIONAL' IMMUNITY UNDER STATE LAW"
SOMEHOW RENDERS THIS CASE AN INAPPROPRIATE ONE FOR OUR DECISION ON THE
FEDERAL CONSTITUTIONAL QUESTION.  THE PHRASE "TRANSACTIONAL" IMMUNITY
IS JUST THAT-- A PHRASE OR SHORTLAND SYMBOL.  SOMETHING LABELED
"TRANSACTIONAL" IMMUNITY BY A STATE COURT MAY OR MAY NOT COINCOIDE WITH
THE CONSTITUTIONAL "TRANSACTIONAL" IMMUNITY DEFINED BY FEDERAL
CONSTITUTIONAL STANDARDS.  THUS IT IS FAIR TO DESCRIBE THE "AGREEMENT"
BETWEEN THE PARTIES TO WHICH THE COURTS REFERS, AS MERELY AN AGREEMENT
THAT THE NEW YORK COURT OF APPEALS, IN DESCRIBING THE IMMUNITY GRANTED
BY THE STATE STATUTE, USED THE LABEL "TRANSACTIONAL" IMMUNITY. 
MOREOVER, SINCE THE STATE HAS FINALLY AFFIRMED PETITIONER'S CONVICTION
IN THIS CASE, THE PRECISE FORMULATION OF THE IMMUNITY GRANTED BY STATE
LAW DOES NOT, IN ANY EVENT, HAVE ANY RELEVANCE TO OUR CONSIDERATION OF
THE CONSTITUTIONAL VALIDITY OF PETITIONER'S CONVICTION.  /5/  THE COURT
MAKES NO REFERENCE TO WHAT IS RELEVANT-- THE FACTS OF PETITIONER'S
COMPELLED TESTIMONY AND HIS PRESENT CONVICTION. 

FINALLY, THE COURT ASSERTS THAT "OUR DETERMINATION UPON THE
FUNDAMENTAL CONSTITUTIONAL QUESTION UNDERLYING THIS CASE WOULD BE IN NO
SENSE NECESSARY TO ITS RESOLUTION IN THIS INSTANCE."  THIS IS SIMPLY
NOT SO.  IF THE COURT RESOLVES THIS CASE, IT MUST MAKE A "DETERMINATION
UPON THE FUNDAMENTAL CONSTITUTIONAL QUESTION."  INDEED, THE PER CURIAM
HAS ALREADY CONCEDED THAT.  THE ISSUE IS WHY RESOLUTION OF THIS CASE,
AND HENCE DECISION ON THE CONSTITUTIONAL QUESTION, IS BEING WITHHELD. 
IN MY JUDGMENT, THE COURT HAS YET TO ARTICULATE A REASON FOR NOT
DECIDING THIS CASE. 

IN SUM, THE COURT ATTEMPTS, NONE TOO SUCCESSFULLY IN MY JUDGMENT, TO
CREATE A SMOKESCREEN BY FOCUSING ON QUESTIONS OF STATE LAW. 
PETITIONER'S CONVICTION, WITHOUT MORE, SQUARELY RAISES THE FEDERAL
CONSTITUTIONAL QUESTION ON A CONCRETE, FACTUAL RECORD WHICH PROVIDES AN
EXCELLENT BASIS FOR CONSTITUTIONAL ADJUDICATION.  UNDER THESE
CIRCUMSTANCES, THERE EXISTS NO BASIS UPON WHICH THE COURT CAN JUSTIFY
DISMISSAL OF THE WRIT OF CERTIORARI AS IMPROVIDENTLY GRANTED.  I
THEREFORE TURN TO THE MERITS. 

        III 

ONLY ONE SOVEREIGNTY, NEW YORK STATE, IS INVOLVED.  THUS THE CASE
RAISES THE BASIC QUESTION OF THE CONSTITUTIONAL RESTRICTIONS UPON THE
POWER OF A STATE GOVERNMENT TO PROSECUTE AN INDIVIDUAL FOR MATTERS
RELATED TO INCRIMINATING TESTIMONY WHICH THAT STATE HAS COMPELLED THE
INDIVIDUAL TO GIVE.  UNLIKE, FOR EXAMPLE, MURPHY V. WATERFRONT COMM'N,
378 U.S. 52 (1964), THERE IS NO PROBLEM HERE OF LIMITATIONS IMPOSED ON
OTHER JURISDICTIONS BY NEW YORK'S ACT OF COMPELLING PETITIONER TO
TESTIFY AGAINST HIMSELF.  A,ND "WHERE THERE IS ONLY ONE GOVERNMENT
INVOLVED, BE IT STATE OR FEDERAL, NOT ONLY IS THE DANGER OF PROSECUTION
MORE IMMINENT AND INDEED THE LIKELY PURPOSE OF THE INVESTIGATION TO
FACILITATE PROSECUTION AND CONVICTION, BUT THAT AUTHORITY HAS THE
CHOICE OF EXCHANGING IMMUNITY FOR THE NEEDED TESTIMONY."  ID., AT 98
(WHITE, J., CONCURRING). 

I BELIEVE THAT THE FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF
INCRIMINATION REQUIRES THAT ANY JURISDICTION THAT COMPELS A MAN TO
INCRIMINATE HIMSELF GRANT HIM ABSOLUTE IMMUNITY UNDER ITS LAWS FROM
PROSECUTION FOR ANY TRANSACTION REVEALED IN THAT TESTIMONY.  /6/  SUCH
TRANSACTIONAL IMMUNITY, IN MY VIEW, STEERS A WELL-CONCEIVED MIDDLE PATH
BETWEEN, ON THE ONE HAND, A POSITION THAT NO IMMUNITY STATUTE CAN
SUPPLANT THE CONSTITUTIONAL PRIVILEGE AND, ON THE OTHER, A POSITION
THAT AFFORDS THE INDIVIDUAL THE ALTOGETHER TOO NARROW PROTECTION OF USE
IMMUNITY AS APPLIED TO INCRIMINATE HIMSELF.  WHILE A POSITION BROADER
THAN TRANSACTIONAL IMMUNITY FINDS SOME SUPPORT IN THE LANGUAGE AND
HISTORY OF THE FIFTH AMENDMENT, /7/  THE REQUIREMENTS OF TODAY'S
SOCIETY AND BROAD GOVERNMENTAL ECONOMIC REGULATION COMBINED WITH THE
EXISTENCE OF THE ADEQUATE ALTERNATIVE OF TRANSACTIONAL IMMUNITY
CONVINCE ME THAT THE CONSTITUTION DOES NOT REQUIRE SO SWEEPING AN
INTERPRETATION AS COMPLETELY TO INVALIDATE THE IMMUNITY TECHNIQUE. 
MERE USE IMMUNITY, WHICH PROTECTS THE INDIVIDUAL ONLY AGAINST THE
ACTUAL USE OF HIS COMPELLED TESTIMONY AND ITS FRUITS, SATISFIES NEITHER
THE LANGUAGE OF THE CONSTITUTION ITSELF NOR THE VALUES, PURPOSES, AND
POLICIES THAT THE PRIVILEGE WAS HISTORICALLY DESIGNED TO SERVE AND THAT
IT MUST SERVE IN A FREE COUNTRY.  FINALLY, THIS COURT'S DECISIONS IN
THE COURSE OF THE PAST CENTURY HAVE CONSISTENTLY READ THE CONSTITUTION
AS REQUIRING NO MORE, BUT NO LESS, THAN TRANSACTIONAL IMMUNITY. 

THE FIFTH AMENDMENT'S GUARANTEE AGAINST SELF-INCRIMINATION-- "NO
PERSON . . . SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS
AGAINST HIMSELF"-- HAS OCCUPIED A CENTRAL PLACE IN OUR JURISPRUDENCE,
SINCE BEFORE THE NATION'S BIRTH: 

      "BY 1776 THE PRINCIPLE OF THE NEMO TENETUR MAXIM WAS SIMPLY

  TAKEN FOR GRANTED AND SO DEEPLY ACCEPTED THAT ITS CONSTITUTIONAL

  EXPRESSION HAD THE MECHANICAL QUALITY OF A RITUALISTIC GESTURE IN

  FAVOR OF A SELF-EVIDENT TRUTH NEEDING NO EXPLANATION."  L. LEVY,

  ORGINS OF THE FIFTH AMENDMENT 430 (1968). 

NOT ONLY THE FEDERAL CONSTITUTION, BUT EVERY STATE GUARANTEES THE
INDIVIDUAL THE PRIVILEGE AGAINST SELF-INCRIMINATION, ALL STATES SAVE
TWO BY PROVISION IN THE STATE CONSTITUTION.  /8/  THIS COURT HAS
REPEATEDLY EMPHASIZED ITS ROLE AS GUARDIAN AGAINST EVEN INADVERTENT OR
GRADUAL EROSION OF THE GUARANTEE.  "THIS PROVISION MUST HAVE A BROAD
CONSTRUCTION IN FAVOR OF THE RIGHT WHICH IT WAS INTENDED TO SECURE." 
COUNSELMAN V. HITCHCOCK, 142 U.S.,AT 562.  THE COURT'S HOLDING THAT THE
FIFTH AMENDMENT PRIVILEGE "IS ALSO PROTECTED BY THE FOURTEENTH
AMENDMENT AGAINST ABRIDGMENT BY THE STATES," MALLORY V. HOGAN, 378 U.S.
1, 6 (1964), IS MODERN AFFIRMATION THAT THE PRIVILEGE IS THE "ESSENTIAL
MAINSTAY" OF THE AMERICAN ACCUSATIORIAL SYSTEM OF CRIMINAL PROSECUTION,
ID., AT 7; MALLOY HELD THAT THE FOURTEENTH AMENDMENT APPLIED THE
PRIVILEGE'S REQUIREMENTS TO THE STATES AS FULLY AS TO FEDERAL
GOVERNMENT. 

THE WORDS OF THE FIFTH AMENDMENT DO NOT, IN TERMS, SUGGEST THAT
GOVERNMENT MAY COMPEL MEN TO INCRIMINATE THEMSELVES PROVIDED IT
PROMISES THAT IT WILL NOT PROSECUTE THEM FOR THE CRIMES REVEALED.  THE
CLAUSE DOES NOT PROHIBIT A PROSECUTION OR CONVICTION; IT PROHIBITS THE
APPLICATION VEL NON OF COMPULSION TO AN INDIVIDUAL TO FORCE TESTIMONY
THAT INCRIMINATES HIM, REGARDLESS OF WHETHER HE IS ACTUALLY
PROSECUTED.  HISTORICALLY, ONE OF THE MAJOR EVILS SOUGHT TO BE ALLAYED
BY THE DEVELOPMENT OF THE PRIVILEGE WAS THE USE OF TORTURE TO EXTRACT A
CONFESSION, /9/  NOT THE SUBSEQUENT USE OF THE CONFESSION IN A CRIMINAL
TRIAL.  WE CONTINUE TO RECOGNIZE THIS DISTINCTION; FOR EXAMPLE, WE
PERMIT THE USE OF VOLUNTARY CONFESSIONS IN CRIMINAL PROSECUTIONS.  /10/
THUS WE OBJECT NOT SO MUCH TO CONVICTING A MAN ON THE BASIS OF
EVIDENCE FROM HIS OWN MOUTH, BUT RATHER TO THE PRACTICE OF COMPELLING
HIM TO INCRIMINATE HIMSELF, REGARDLESS OF A SUBSEQUENT PROSECUTION. 

IMPLICITLY, OF COURSE, "IN ANY CRIMINAL CASE" SUGGESTS A LIMITATION
UPON THE REACH OF THE PRIVILEGE, ALTHOUGH EVER SINCE MR. CHIEF JUSTICE
MARSHALL'S OPINION IN THE AARON BURR CASE, THE REACH HAS BEEN THE
POSSIBILITY OF A CRIMINAL CHARGE, NOT WHETHER ONE IS IN FACT BROUGHT. 
UNITED STATES V. BURR, 25 F.CAS 38 (NO. 14692E) (C.C.D. VA. 1807).  BUT
IF THERE IS NO POSSIBILITY OF A CRIMINAL CASE, THEN THE PRIVILEGE WOULD
NOT APPLY.  AND THAT IS PRECISELY THE BASIS ON WHICH THIS COURT HAS
CONSISTENTLY UPHELD GRANTS OF IMMUNITY FROM BROWN V. WALKER, 161 U.S.
591 (1896), TO ULLMANN V. UNITED STATES, 350 U.S. 422 (1956): 

" (IF (A MAN'S) TESTIMONY OPERATES) AS A COMPLETE PARDON FOR THE
OFFENSE TO WHICH IT RELATES-- A STATUTE ABSOLUTELY SECURING TO HIM SUCH
IMMUNITY FROM PROSECUTION WOULD SATISFY THE DEMANDS OF THE CLAUSE IN
QUESTION."  BROWN V. WALKER, 161 U.S.,AT 595.  OR, AS THE COURT PUT IT
MORE SUCCINCTLY 10 YEARS LATER, 

"IF THE CRIMINALITY HAS ALREADY BEEN TAKEN AWAY, THE AMENDMENT
CEASES TO APPLY."  HALE V. HENKEL, 201 U.S. 43, 67 (1906). 

IT IS CLEAR, OF COURSE, THAT MERE "USE" IMMUNITY DOES NOT "OPERATE
AS A COMPLETE PARDON FOR THE OFFENSE," NOR DOES IT TAKE THE CRIMINALITY
AWAY FROM THE TESTIMONY IN QUESTION.  IF THE INDIVIDUAL IS ONLY
PROMISED THAT THE GOVERNMENT WILL NOT ACTUALLY USE HIS COMPELLED
TESTIMONY OR ITS FRUITS TO CONVICT HIM, HE IS STILL BEING COMPELLED TO
TESTIFY AGAINST HIMSELF "IN (A) CRIMINAL CASE," IN CLEAR CONTRADICTION
OF THE CONSTITUTIONAL COMMAND.  HE IS STILL BEING FORCED BY THE STATE
TO ADMIT CRIMINAL CONDUCT FOR WHICH HE MAY BE PUNISHED, ALBEIT NOT ON
THE BASIS OF HIS COMPELLED TESTIMONY. 

THE POLICIES AND PURPOSES WHICH THE PRIVILEGE SERVES ARE PROMOTED BY
THE TRANSACTIONAL IMMUNITY STANDARD.  MR. JUSTICE FRANKFURTHER'S OFT
QUOTED REMARK THAT "(THE PRIVILEGE AGAINST SELF-INCRIMINATION IS A
SPECIFIC PROVISION OF WHICH IT IS PECULIARLY TRUE THAT 'A PAGE OF
HISTORY IS WORTH A VOLUME OF LOGIC,'" ULLMANN V. UNITED STATES, 350
U.S.,AT 438, REFLECTS THE FACT THAT THE PRIVILEGE SAFEGUARDS MANY
INTERRELATED FUNDAMENTAL VALUES:  "IT WILL NOT DO, THEREFORE, TO ASSIGN
ONE ISOLATED POLICY TO THE PRIVILEGE," MURPHY V. WATERFRONT COMM'N, 378
U.S.,AT 56 N. 5, AND ATTEMPT TO ARGUE FROM "THE" POLICY SO IDENTIFIED. 
IN MURPHY, THE COURT IDENTIFIED SOME OF THE COMPLEX OF VALUES THAT THE
PRIVILEGE SERVES: 

"(OUR UNWILLINGNESS TO SUBJECT THOSE SUSPECTED OF CRIME TO THE CRUEL
TRILEMMA OF SELF-ACCUSATION, PERJURY OR CONTEMPT; OUR PREFERENCE FOR AN
ACCUSATORIAL RATHER THAN AN INQUISITIORIAL SYSTEM OF CRIMINAL JUSTICE;
OUR FEAR THAT SELF-INCRIMINATING STATEMENTS WILL BE ELICITED BY
INHUMANE TREATMENT AND ABUSES; OUR SENSE OF FAIR PLAY WHICH DICTATES 'A
FAIR STATE-INDIVIDUAL BALANCE BY REQUIRING THE GOVERNMENT TO LEAVE THE
INDIVIDUAL ALONE UNTIL GOOD CAUSE IS SHOWN FOR DISTRUBING HIM AND BY
REQUIRING THE GOVERNMENT IN ITS CONTEST WITH THE INDIVIDUAL TO SHOULDER
THE ENTIRE LOAD'; OUR RESPECT FOR THE INVIOLABILITY OF THE HUMAN
PERSONALITY AND OF THE RIGHT OF EACH INDIVIDUAL 'TO A PRIVATE ENCLAVE
WHERE HE MAY LEAD A PRIVATE LIFE'; OUR DISTRUST OF SELF-DEPRECATORY
STATEMENTS; AND OUR REALIZATION THAT THE PRIVILEGE, WHILE SOMETIMES 'A
SHELTER TO THE GUILTY,' IS OFTEN 'A PROTECTION TO THE INNOCENT.'"  ID.,
AT 55. 

I QUOTE THIS SUMMARY OF SOME OF THE VALUES AND PURPOSES SERVED BY
THE PRIVILEGE AT SUCH LENGTH BECAUSE I THINK IT IS NOTEWORTHY THAT
MANY, IF NOT MOST, OF THEM ARE SEVERELY INFRINGED BY COMPELLING AN
INDIVIDUAL TO TESTIFY UNDER ANY CIRCUMSTANCES.  I DO NOT SEEK TO REOPEN
THE DEBATE OF BROWN V. WALKER, SUPRA, AND ULLMANN V. UNITED STATES,
SUPRA, WHETHER THE FIFTH AMENDMENT IS COMPATIBLE WITH IMMUNITY STATUTES
OF ANY NATURE, NOT ONLY BECAUSE THE COMPETING CONSIDERATIONS IDENTIFIED
IN THOSE OPINIONS AND MY BORTHER WHITE'S CONCURRING OPINION IN MURPHY,
378 U.S.,AT 93-96, AS WELL AS THE LANGUAGE OF THE FIFTH AMENDMENT,
CONVINCE ME THAT THAT RESULT IS NOT REQUIRED, IT IS, HOWEVER, IMPORTANT
TO APPRECIATE THE BREADTH AND SIGNIFICANCE OF THE VALUES THAT THE FIFTH
AMENDMENT WAS DESIGNED TO PROTECT. 

IN LIGHT OF THOSE VALUES, IT SEEMS CLEAR TO ME THAT MERE "USE"
IMMUNITY IS IS INSUFFICIENT WHEN THE GOVERNMENT INVOLVED IS THE ONE
THAT HAS COMPELLED THE INCRIMINATING TESTIMONY.  IT HAS BEEN ARGUED
THAT IF THE STATE IS PROHIBITED FROM USING TESTIMONY OR INFORMATION
OBTAINED BY COMPULSION, THEN BOTH THE GOVERNMENT AND THE INDIVIDUAL ARE
IN THE SAME POSITION AS IF THE WITNESS HAD NOT TESTIFIED.  AS THE
MURPHY STATEMENT OF VALUES SHOWS, FROM THE STANDPOINT OF THE INDIVIDUAL
(WHICH IS ALSO THE STANDPOINT OF THE FIFTH AMENDMENT) THAT IS SIMPLY
NOT TRUE.  THE INDIVIDUAL HAS BEEN COMPELLED TO INCRIMINATE HIMSELF,
AND IF HE IS GRANTED ONLY USE IMMUNITY, COMPELLED TO DO SO IN MATTERS
FOR WHICH HE MAY ULTIMATELY BE PROSECUTED.  EVEN FROM THE STANDPOINT OF
THE STATE IT CLEARLY IS NOT THE SAME POSITION THAT IT WOULD HAVE BEEN
HAD IT NOT COMPELLED THE WITNESS TO TESTIFY.  IT HAS OBVIOUSLY OBTAINED
INFORMATION, WHICH MAY HELP IT TO PURSUE ITS GENERAL INVESTIGATION, AS
WELL AS ITS SPECIFIC INVESTIGATION OF OTHERS.  WHETHER THAT INFORMATION
WILL INABLE THE INVESTIGATION TO GENERATE ENOUGH STEAM AND CONTINUE
LONG ENOUGH TO PRODUCE "INDEPENDENT" EVIDENCE INCRIMINATING THE
INDIVIDUAL ORIGINALLY COMPELLED TO TESTIFY IS AN OPEN QUESTION.  IN
SHORT, USE IMMUNITY LITERALLY MISSES HALF THE POINT OF THE PRIVILEGE,
FOR IT PERMITS THE COMPULSION WITHOUT REMOVING THE CRIMINALITY.  SEE
HALE V. HENKEL, SUPRA. 

FINALLY, THE UNCERTAINTIES OF THE FACTFINDING PROCESS ARGUES
STRONGLY AGAINST "USE" IMMUNITY AND IN FAVOR OF TRANSACTIONAL
IMMUNITY.  THIS COURT HAS RECOGNIZED THAT "(THERE IS ALWAYS IN
LITIGATION A MARGIN OF ERROR, REPRESENTING ERROR IN FACTFINDING, WHICH
BOTH PARTIES MUST TAKE INTO ACCOUNT."  SPEISER V. RANDALL, 357 U.S.
513, 525 (1958).  IN DEALING WITH A SINGLE JURISDICTION, WE OUGHT TO
RECOGNIZE THE ENORMOUS DIFFICULTY IN ATTEMPTING TO ASCERTAIN WHETHER A
SUBSEQUENT PROSECUTION OF AN INDIVIDUAL, WHO HAS PREVIOUSLY BEEN
COMPELLED TO INCRIMINATE HIMSELF IN REGARD TO THE OFFENSE IN QUESTION,
DERIVES FROM THE COMPELLED TESTIMONY OR FROM AN "INDEPENDENT SOURCE." 
FOR ONE THING, ALL THE RELEVANT EVIDENCE WILL OBVIOUSLY BE IN THE HANDS
OF THE GOVERNMENT-- THE GOVERNMENT WHOSE INVESTIGATION INCLUDED
COMPELLING THE INDIVIDUAL INVOLVED TO INCRIMINATE HIMSELF.  MOREOVER,
THIS ARGUMENT DOES NOT DEPEND UPON ASSUMPTIONS OF MISCONDUCT OR
COLLUSION AMONG GOVERNMENT OFFICERS.  IT ASSUMES ONLY THE NORMAL MARGIN
OF HUMAN FALLIBILITY.  MEN WORKING IN THE SAME OFFICE OR DEPARTMENT
EXCHANGE INFORMATION WITHOUT RECORDING CAREFULLY HOW THEY OBTAINED
CERTAIN INFORMATION; IT IS OFTEN IMPOSSIBLE TO REMEMBER IN RETROSPECT
HOW OR WHEN OR FROM WHOM INFORMATION WAS OBTAINED.  BY HYPOTHESIS, THE
SITUATION INVOLVES ONE JURISDICTION WITH PRESUMABLY ADEQUATE EXCHANGE
OF INFORMATION AMONG ITS VARIOUS LAW ENFORCEMENT OFFICERS.  MOREOVER,
THE POSSIBILITY OF SUBTLE INFERENCES DRAWN FROM ACTION OR NON-ACTION ON
THE PART OF FELLOW LAW ENFORCEMENT PERSONNEL WOULD BE DIFFICULT IF NOT
IMPOSSIBLE TO PROVE OR DISPROVE.  THIS DANGER, SUBSTANTIAL WHEN A
SINGLE JURISDICTION BOTH COMPELS INCRIMINATING TESTIMONY AND BRINGS A
LATER PROSECUTION, MAY FADE WHEN THE JURISDICTION BRINGING THE
PROSECUTION DIFFERS FROM THE JURISDICTION THAT COMPELLED THE
TESTIMONY.  CONCERN OVER INFORMAL AND UNDETECTED EXCHANGE OF
INFORMATION IS ALSO CORRESPONDINGLY LESS WHEN TWO DIFFERENT
JURISDICTIONS ARE INVOLVED. 

TRANSACTIONAL IMMUNITY RAISES NONE OF THESE PROBLEMS.  IT PROVIDES
THE INDIVIDUAL WITH AN ASSURANCE THAT HE IS NOT ESTIFYING ABOUT MATTERS
FOR WHICH HE MAY LATER BE PROSECUTED.  NO QUESTION ARISES OF TRACING
THE USE OR NON-USE OF INFORMATION GLEANED FROM THE WITNESS' COMPELLED
TESTIMONY.  THE SOLE QUESTION PRESENTED TO A COURT IS WHETHER THE
SUBSEQUENT PROSECUTION IS RELATED TO THE SUBSTANCE OF THE COMPELLED
TESTIMONY.  BOTH WITNESS AND GOVERNMENT KNOW PRECISELY WHERE THEY
STAND.  RESPECT FOR LAW IS FURTHERED WHEN THE INDIVIDUAL KNOWS HIS
POSITION AND IS NOT LEFT SUSPICIOUS THAT A LATER PROSECUTION WAS
ACTUALLY THE FRUIT OF HIS COMPELLED TESTIMONY. 

THE TRANSACTIONAL IMMUNITY STANDARD WAS FIRST ARTICULATED BY THIS
COURT IN COUNSELMAN V. HITCHCOCK, SUPRA, IN 1892; IT HAS CONSISTENTLY
BEEN REAFFIRMED AND REITERATED IN BOTH HOLDING AND DICTA EVER SINCE,
AND HAS NEVER BEEN SERIOUSLY QUESTIONED IN A CASE INVOLVING THE ACTIONS
OF A SINGLE JURISDICTION.  IN COUNSELMAN, THE COURT HELD THAT THE
IMMUNITY GRANTED BY AN 1868 FEDERAL STATUTE WAS INADEQUATE TO SUPPLANT
THE RIGHT OF THE WITNESS TO RELY ON HIS CONSITUTIONAL PRIVILEGE:  "IN
VIEW OF THE CONSTITUTIONAL PROVISION, A STATUTORY ENACTMENT, TO BE
VALID, MUST AFFORD ABSOLUTE IMMUNITY AGAINST FUTURE PROSECUTION FOR THE
OFFENCE TO WHICH THE QUESTION RELATES."  142 U.S.,AT 586.  FOUR YEARS
LATER, THE COURT IN BROWN V. WALKER, SUPRA, UPHELD A CONTEMPT
CONVICTION FOR A WITNESS' REFUSAL TO ANSWER A QUESTION AFTER HE HAD
BEEN GRANTED IMMUNITY UNDER A NEW 1893 FEDERAL STATUTE ENACTED AFTER
THE COUNSELMAN DECISION.  THE 1893 STATUTE PROVIDED, 

"(NO PERSON SHALL BE PROSECUTED OR SUBJECTED TO ANY PENALTY OF
FORFEITURE FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER OR THING,
CONCERNING WHICH HE MAY TESTIFY."  ACT OF FEBRUARY 11, 1893, 27 STAT.
443, 49 U.S.C. 46.  FINDING THAT UNDER THIS STATUTE A WITNESS'
TESTIMONY "OPERATES) AS A . . . PARDON" FOR CRIMINAL CONDUCT TO WHICH
IT RELATES, THE COURT HELD THAT THE STATUTE "FULLY ACCOMPLISHED" THE
FIFTH AMENDMENT OBJECTIVE.  161 U.S.,AT 610.  ONLY BY RELYING ON FULL
TRANSACTIONAL IMMUNITY DID THE COURT SUSTAIN THE IMMUNITY STATUTE
BEFORE IT OVER THE DISSENT OF FOUR JUSTICES WHO THOUGHT THE STATUTE'S
PROTECTION STILL NOT COEXTENSIVE WITH THE CONSTITUTIONAL PRIVILEGE. 
161 U.S.,AT 610-638 (DISSENTING OPINIONS OF SHIRAS AND FIELD, JJ.). 

IN HALE V. HENKEL, SUPRA, THE COURT SUSTAINED A CONTEMPT CITATION
FOR REFUSING TO ANSWER QUESTIONS AFTER TRANSACTIONAL IMMUNITY HAD BEEN
GRANTED UNDER A FEDERAL IMMUNITY STATUTE, RESTING ON THE PROPOSITION
THAT "IF THE CRIMINALITY HAS ALREADY BEEN TAKEN AWAY, THE AMENDMENT
CEASES TO APPLY."  201 U.S.,AT 67.  IN 1924, MR. JUSTICE BRANDEIS,
SPEAKING FOR A UNAMIOUS COURT, HELD THE PRIVILEGE WAS AVAILABLE TO A
BANKRUPT SUBPOENAED BEFORE A SPECIAL COMMISSIONER FOR EXAMINATION 

"BECAUSE THE PRESENT STATUTE FAILS TO AFFORD COMPLETE IMMUNITY FROM
PROSECUTION.  IF CONGRESS SHOULD HEREAFTER CONCLUDE THAT A FULL
DISCLOSURE OF THE BANKRUPT ESTATE BY THE WITNESS IS OF GREATER
INPORTANCE THAN THE POSSIBILITY OF PUNISHING THEM FOR SOME CRIME IN THE
PAST, IT CAN, AS IN OTHER CASES, CONFER THE POWER OF UNRESTRICTED
EXAMINATION BY PROVIDING COMPLETE IMMUNITY.  COMPARE BROWN V. WALKER,
161 U.S. 591; GLICKSTEIN V. UNITED STATES, 222 U.S. 139, 142; ENSIGN V.
PENNSYLVANIA, 227 U.S. 592."  MCCARTHY V. ARNDSTEIN, 266 U.S. 34, 42. 
SEE ALSO UNITED STATES V. MONIA, 317 U.S. 424, 428 (1943) (COUNSELMAN
"INDICATED CLEARLY THAT NOTHING SHORT OF ABSOLUTE IMMUNITY WOULD
JUSTIFY COMPELLING THE WITNESS TO TESTIFY IF HE CLAIMED HIS
PRIVILEGE"); SMITH V. UNITED STATES, 337 U.S. 137, 147 (1949)
(TRANSACTIONAL IMMUNITY "MET THE 'ABSOLUTE' TEST OF THE CONSTITUTIONAL
PROVISION AGAINST SELF-INCRIMINATION").     BY 1956, MR. JUSTICE
FRANKFURTER, WRITING FOR THE COURT, COULD ASSERT THAT THE 1893 STATUTE,
ENACTED SHORTLY AFTER COUNSELMAN AND ADOPTING THE TRANSACTIONAL
IMMUNITY STANDARD, HAS "BECOME PART OF OUR CONSITUTIONAL FABRIC." 
ULLMAN V. UNITED STATES, 350 U.S. 422, 438.  AGAIN, THE COURT IN
ULLMANN RELIED ON THE TRANSACTIONAL IMMUNITY STANDARD TO REAFFIRM THE
HOLDING OF BROWN V. WALKER AGAINST THE DISSENT OF TWO JUSTICES WHO
REPEATED THE ARGUMENTS OF THE BROWN DISSENTERS THAT EVEN TRANSACTIONAL
IMMUNITY DID NOT SATISFY THE CONSTITUTIONAL PRIVILEGE.  ULLMANN V.
UNITED STATES, SUPRA, AT 440-445. 

ULLMANN'S ASSERTION THAT TRANSACTIONAL IMMUNITY HAS BECOME PART OF
OUR "CONSTITUTIONAL FABRIC" FINDS SUPPORT IN THE ACTION OF CONGRESS IN
THE 78 YEARS SINCE COUNSELMAN FIRST ANNOUNCED THE STANDARD.  CONGRESS
HAS WRITTEN MORE THAN 40 IMMUNITY PROVISIONS INTO VARIOUS FEDERAL
STATUTES DURING THAT TIME, AND WITH ONE MINOR AND UNEXPLAINED EXCEPTION
IN 1898 AND TWO EXCEPTIONS IN 1970, /11/  EVERY PROVISION HAS PROVIDED
FOR TRANSACTIONAL IMMUNITY.  /12/  MOREOVER, AS REFLECTED BY AN
APPENDIX IN PETITIONER'S BRIEF, THE MAJORITY OF STATE IMMUNITY STATUTES
PROVIDE FOR TRANSACTIONAL IMMUNITY, EVEN THOUGH THE STATES WERE NOT
SUBJECT TO THE FULL EFFECT OF THE FIFTH AMENDMENT UNTIL 1964.  MALLOY
V. HOGAN, SUPRA. 

THE WISDOM OF THIS CONSISTENT VIEW OF THE PROTECTION REQUIRED BY THE
FIFTH AMENDMENT IS ILLUSTRATED AND SUPPORTED BY THE FACTS OF THIS
CASE.  AT THE TIME THE PETITIONER WAS SUMMONED FROM HIS PRISON CELL TO
TESTIFY BEFORE THE GRAND JURY, THE PROSECUTOR KNEW THAT THE PETITIONER
HAD OFFERED TO BRIBE PATROLMAN SEWELL.  HE KNEW THAT THE BASIS OF THE
BRIBERY WAS THE ASSAULT ON GRAHAM AND THAT PETITIONER HAD SOUGHT TO
INFLUENCE SEWELL TO DISPOSE OF THE TIRE IRONS INVOLVED IN THE ASSAULT. 
NONETHELESS, THE DISTRICT ATTORNEY MADE HIS DECISION: HE ELECTED TO
CALL PETITIONER BEFORE THE GRAND JURY WHICH WAS INVESTIGATING VARIOUS
CONSPIRACIES ASSOCIATED WITH THAT ASSAULT.  BEFORE THE GRAND JURY, THE
PROSECUTOR OBTAINED IMMUNITY FOR PETITIONER AND, UNDER THE THREAT OF
CONTEMPT, COMPELLED THE PETITIONER TO TESTIFY ABOUT THE ASSAULT AND
ABOUT VARIOUS MATTERS CONNECTED WITH IT.  THE PETITIONER COMPLIED,
RELINQUISHING HIS CONSTITUTIONALLY GUARANTEED RIGHT NOT TO INCRIMINATE
HIMSELF, IN THE FACE OF A CONSIDERED DECISION BY A STATE OFFICIAL TO
UTILIZE OFFICIAL STATE PROCESSES TO COMPEL HIM TO TESTIFY. 

THIS COURT EMPHASIZED IN BROWN V. WALKER, SUPRA, ONE OF THE MAJOR
EVILS THE AMENDMENT WAS DESIGNED TO GUARD AGAINST: 

"(IF AN ACCUSED PERSON BE ASKED TO EXPLAIN HIS APPARENT CONNECTION
WITH A CRIME UNDER INVESTIGATION, THE CASE WITH WHICH THE QUESTIONS PUT
TO HIM MAY ASSUME AN INQUISITORIAL CHARACTER, THE TEMPTATION TO PRESS
THE WITNESS UNDULY, TO BROWBEAT HIM IF HE BE TIMID OR RELUCTANT, TO
PUSH HIM INTO A CORNER, AND TO ENTRAP HIM INTO FATAL CONTRADICTIONS,
WHICH IS SO PAINFULLY EVIDENT IN MANY OF THE EARLIER STATE TRIALS . . .
MADE THE SYSTEM SO ODIOUS AS TO GIVE RISE TO A DEMAND FOR ITS TOTAL
ABOLITION.  . .  .  SO DEEPLY DID THE INQUITITIES OF THE ANCIENT SYSTEM
IMPRESS THEMSELVES UPON THE MINDS OF THE AMERICAN COLONISTS THAT THE
STATES, WITH ONE ACCORD, MADE A DENIAL OF THE RIGHT TO QUESTION AN
ACCUSED PERSON A PART OF THEIR FUNDAMENTAL LAW."  161 U.S.,AT 596-597. 
SO TOO IN THIS CASE:  AN ACCUSED WAS PUT IN THE SAME POSITION, WITH THE
SAME ATTENDANT TEMPTATIONS AND PRESSURES UNDER THE PROSECUTOR.  THAT
THE QUESTIONING OCCURRED IN THE SECRECY OF THE GRAND JURY, DOES NOT
AFFECT THE PROTECTION AFFORDED THE INDIVIDUAL BY THE CONSTITUTION. 
ONLY IF BOTH PROSECUTOR AND WITNESS ARE CLEARLY ON NOTICE THAT
QUESTIONING ABOUT AN INCIDENT WILL RELIEVE THE WITNESS OF ALL CRIMINAL
LIABILITY SUBSTANTIALLY RELATED TO THAT SUBJECT CAN WE GUARANTEE THAT
THE INQUISITORIAL CHARACTER OF THE PROCEEDING WILL BE REMOVED, AND
STILL ALLOW THE PROSECUTOR TO SEEK OUT FACTS RELEVANT TO THE CRIMES OF
OTHERS. 

        IV 

UNDER THE TRANSACTIONAL IMMUNITY STANDARD, I DO NOT BELIEVE THAT
PETITIONER'S CONVICTION CAN STAND.  MR. JUSTICE HOLMES, IN HEIKE V.
UNITED STATES, 227 U.S. 131 (1913), IN INTERPRETING A FEDERAL IMMUNITY
STATUTE SO AS TO RENDER IT "COTERMINOUS WITH WHAT OTHERWISE WOULD HAVE
BEEN THE PRIVILEGE OF THE PERSON CONCERNED," 227 U.S.,AT 142, HELD THAT
"(WHEN THE STATUTE SPEAKS OF TESTIMONY CONCERNING A MATTER IT MEANS
CONCERNING IT IN A SUBSTANTIAL WAY."  ID., AT 144.  I AGREE THAT
IMMUNITY ATTACHES ONLY TO MATTERS SUBSTANTIALLY RELATED TO THE
COMPELLED TESTIMONY. 

PETITIONER TESTIFIED THAT HE HAD COMMITTED THE ASSAULT ON GRAHAM
WITH TIRE IRONS.  HE TESTIFIED THAT THE TIRE IRONS IN THE POSSESSION OF
THE POLICE WERE THE TIRE IRONS THAT HE HAD USED.  HE TESTIFIED THAT HE
WAS CAUGHT IMMBDIATELY AFTER THE ASSAULT BY THE POLICE, TAKEN TO THE
STATION HOUSE, BOOKED ON THE ASSAULT CHARGE, AND RELEASED ON BAIL THE
NEXT DAY.  HIS TESTIMONY CARRIED RIGHT UP TO THE TIME PATROLMAN SEWELL
LATER TESTIFIED THAT PETITIONER OFFERED HIM A BRIBE; IT CONCERNED THE
EVENTS AND UNDERLYING CIRCUMSTANCES THAT GIVE RISE TO THE BRIBE.  IT
ESTABLISHED THE MOTIVE FOR THE BRIBE AND ESTABLISHED ALL THE FACTS
UNDERLYING THE SUBSTANCE OF THE BRIBE.  THESE ARE NOT FACTS THAT HAD
"NO CONNECTION" WITH THE SUBSEQUENT PROSECUTION, SEE KEIKE V. UNITED
STATES, 227 U.S.,AT 143-144; TO THE CONTRARY, THEY WERE NOT MERELY
SUBSTANTIALLY RELATED TO THE BRIBERY CHARGE, BUT ACTUALLY QUITE
PERTINENT TO THAT PROSECUTION.  CONSEQUENTLY, PETITIONER'S MOTION TO
DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED. 

I WOULD REVERSE THE JUDGMENT BELOW AND REMAND WITH INSTRUCTIONS TO
DISMISS THE INDICTMENT. 

/1/  PETITIONER HAS ARGUED THAT HE HAD A RIGHT TO COUNSEL IN THE
CIRCUMSTANCES OF THIS CASE.  IN VIEW OF MY CONCLUSION THAT PETITIONER'S
CONVICTION IS INVALID UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, I HAVE
NO OCCASION TO PASS UPON HIS SIXTH AMENDMENT ARGUMENT. 

/2/  IF THE COURT HAS DOUBTS THAT PETITIONER'S CONVICTION WOULD
STILL BE AFFIRMED IN LIGHT OF THE SUPERVENING CHANGE IN THE
INTERPRETATION OF STATE LAW, THE APPROPRIATE COURSE WOULD BE TO REMAND
TO THE STATE COURT FOR RECONSIDERATION, AS MY BROTHER BLACK SUGGESTS. 
BELL V. MARYLAND, 378 U.S. 226, 228 (1964).  THE COURT'S FAILURE TO DO
SO PRESUMABLY RESTS ON THE NEW YORK COURT'S FOOTNOTE IN ITS LATER
OPINION STATING THAT, IN ITS VIEW, THE TRANSACTIONAL IMMUNITY GRANTED
BY THE NEW YORK STATUTE WOULD NOT AFFECT PETITIONER'S CONVICTION.  BUT
IF PETITIONER'S CONVICTION IS INDEED REGARDED AS FINAL UNDER NEW YORK
LAW, THEN THE CONSTITUTIONAL ISSUE IS POSED WITHOUT REGARD TO NEW YORK
LAW FOR THE REASONS STATED IN THE TEXT. 

/3/  E.G., GARDNER V. BRODERICK, 392 U.S. 273 (1968); UNIFORMED
SANITATION MEN ASSN. V. COMMISSIONER OF SANITATION, 392 U.S. 280
(1968); MALLOY V. HOGAN, 378 U.S. 1 (1964); ULLMANN V. UNITED STATES,
350 U.S. 422 (1956); HOFFMAN V. UNITED STATES, 341 U.S. 479 (1951);
UNITED STATES V. MURODCK, 284 U.S. 141 (1931); MCCARTHY V. ARNDSTEIN,
266 U.S. 34 (1924); HALE V. HENKEL, 201 U.S. 43 (1906); BALLMANN V.
FAGIN, 200 U.S. 186 (1906); JACK V. KANSAS, 199 U.S. 372 (1905); BROWN
V. WALKER, 161 U.S. 591 (1896); COUNSELMAN V. HITCHCOCK, 142 U.S. 547
(1892).  BUT SEE, E.G., ADAMS V. MARYLAND, 347 U.S. 179 (1954); SMITH
V. UNITED STATES, 337 U.S. 137 (1949); FELDMAN V. UNITED STATES, 322
U.S. 487 (1944); HEIKE V. UNITED STATES, 227 U.S. 131 (1913). 

/4/  NOT ONLY DO THE PARTIES DISAGREE ON THE EXTENT OF THE FEDERAL
CONSTITUTIONAL PROTECTION, BUT BOTH PARTIES ALSO SEE A DECISION ON THAT
SHARPLY DISPUTED QUESTION AS NECESSARY TO A DECISION OF THIS CASE: 

COUNSEL FOR RESPONDENT: 

"(IF TRANSACTIONAL IMMUNITY IS REQUIRED BY THE FEDERAL CONSTITUTION,
THEN THE DECISION OF THE COURT OF APPEALS THAT THIS WAS OR WASN'T A
THING AS SPECIFIED IN THE NEW YORK STATE STATUTE, IS A MATTER OF
FEDERAL IMPORTANCE, AND IT IS TO BE DECIDED BY A UNIFORM STANDARD. 

"ON THE OTHER HAND, IF THE ONLY THING THAT THE CONSTITUTION REQUIRES
IS A USE PLUS FRUITS IMMUNITY, THEN WHEN NEW YORK DECIDED WHETHER THIS
CRIME, THIS BRIBERY WAS ONE OF THE THINGS TESTIFIED TO IN THE GRAND
JURY, BECOMES STRICTLY A MATTER OF THE STATE INTERPRETATION OF ITS OWN
STATUTE, AND THERE IS NO FEDERAL CONSTITUTIONAL QUESTION INVOLVED. 

"AND SO IT IS NECESSARY TO DECIDE WHETHER TRANSACTIONAL IMMUNITY IS
REQUIRED BY THE FEDERAL CONSTITUTION.  NOW, THE PETITIONER RELIES A
GREAT DEAL ON THE CASE OF COUNSELMAN VS. HITCHCOCK.  NOW, IT IS OUR
POSITION THAT COUNSELMAN VS. HITCHCOCK IS NOT THE LAW ANY MORE, THAT IT
HAS BEEN OVERRULED, OR IF IT HASN'T, IT SHOULD BE . . . "  TRI.  OF
ORAL ARG. 24. 

COUNSEL FOR PETITIONER: 

"THIS IS THE TRANSACTIONAL) IMUNITY RULE THAT WE ASSERT IS REQUIRED
UNDER THE FIFTH AMENDMENT.  . . . 

"IT IS OUR POSITION THAT THIS IS THE RULE THAT FIRST WAS ENUNCIATED
IN THE FIRST CASE IN THIS COURT TO DEAL WITH THE QUESTION OF IMMUNITY
AND THE ABROGATION OF THE FIFTH AMENDMENT PRIVILEGE IN COUNSELMAN VS.
HITCHCOCK.  IT HAS BEEN CONSTANTLY REITERATED IN NUMEROUS DECISIONS OF
THIS COURT, AND WE BELIEVE IT IS A VERY SOUND RULE. 

        .          .          .          . 

"SO WE FEEL THAT THERE WAS NO QUESTION BUT THAT THERE WAS A
SUBSTANTIAL RELATIONSHIP (BETWEEN THE COMPELLED TESTIMONY AND
PETITIONER'S CONVICTION) AND THAT UNDER THE TRANSACTIONAL IMMUNITY
TEST, WHICH WE CONTEND IS A FEDERAL CONSTITUTIONAL TEST, AND AS IT HAS
BEEN EXPLAINED BY THIS COURT IN HEIKE AND APPLIED IN OTHER CASES, THE
BRIBERY INDICTMENT MUST BE FOUND TO HAVE BEEN COVERED BY THE
TRANSACTIONAL) IMMUNITY TO WHICH THIS PETITIONER WAS ENTITLED."  ID.,
AT 11, 15. 

/5/  SEE SUPRA, AT 555-558. 

/6/  "TRANSACTIONAL" IMMUNITY PRESUPPOSES "USE" IMMUNITY. 
"(COMPELLED TESTIMONY AND ITS FRUITS CANNOT BE USED IN ANY MANNER . . .
IN CONNECTION WITH A CRIMINAL PROSECUTION AGAINST (THE WITNESS)." 
MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 79 (1964). 

/7/  HISTORIANS HAVE NOTED THAT THE CLAUSE ITSELF IS ABSOLUTE AND
MAY NOT ORIGINALLY HAVE BEEN VIEWED AS ALLOWING THE GOVERNMENT TO
COMPEL MEN TO INCRMINATE THEMSELVES IF IT ONLY PROMISED NOT TO
PROSECUTE THEM FOR THE CRIMES REVEALED: 

"THE CLAUSE BY ITS TERMS ALSO PROTECTED AGAINST MORE THAN JUST 'SELF
INCRIMINATION,' A PHRASE THAT HAD NEVER BEEN USED IN THE LONG HISTORY
OF ITS ORIGINS AND DEVELOPMENT.  THE 'RIGHT AGAINST SELF-INCRIMINATION'
IS A SHORT-HAND GLOSS OF MODERN ORIGIN THAT IMPLIES A RESTRICTION NOT
IN THE CONSTITUTIONAL CLAUSE.  THE RIGHT NOT TO BE A WITNESS AGAINST
ONESELF IMPORTS A PRINCIPLE OF WIDER REACH, APPLICABLE, AT LEAST IN
CRIMINAL CASES, TO THE SELF-PRODUCTION OF ANY ADVERSE EVIDENCE,
INCLUDING EVIDENCE THAT MADE ONE THE HERALD OF HIS OWN INFAMY, THEREBY
PUBLICLY DISGRACING HIM. 

        .          .          .          . 

"THE STATE COURTS OF THE FRAMERS' GENERATION FOLLOWED THE EXTENSION
OF THE RIGHT TO COVER SELF-INFAMY AS WELL AS SELF-INCRIMINATION,
ALTHOUGH THE SELF-INFAMY RULE EVENTUALLY FELL INTO DISUSE."  L. LEVY,
ORIGINS OF THE FIFTH AMENDMENT 427, 429 (1968). 

/8/  SEE S. J. WIGMORE, EVIDENCE SEC. 2252 AND N. 3 (MCNAUGHTON REV.
1961). 

/9/  SEE BROWN V. WALKER, 161 U.S. 591, 596-597 (1896); LEVY, N. 7,
SUPRA, AT 426 AND PASSIM. 

/10/  TALMUDIC LAW PROHIBITS THE ADMISSION IN EVIDENCE OF ANY SELF
INCRIMINATORY TESTIMONY OR STATEMENT, EVEN IF VOLUNTARILY GIVEN.  LEVY,
N. 7, SUPRA, AT 433-441. 

/11/  11 U.S.C. 25(A)(10).  THIS IMMUNITY PROVISION WAS FIRST
ENACTED IN THE BANKRUPTCY ACT OF JULY 1, 1898, SEC. 7(A)(9), 30 STAT.
548, SIX YEARS AFTER COUNSELMAN.  PROFESSOR WIGMORE HAS SPECULATED THAT
THE DRAFTERS OF THIS PROVISION WERE HOSTILE TO THE BANKRUPTCY ACT AND
PURPOSELY DRAFTED AN IMPERFECT IMMUNITY.  8 J. WIGMORE, EVIDENCE SEC.
2283, P. 528 (3D 3D 1940).  MCCARTHY V. ARNDSTEIN, 266 U.S. 34 (1924),
ESTABLISHED THAT THE IMMUNITY GRANTED BY THE SECTION IS INADEQUATE TO
REMOVE THE CONSTITUTIONAL PRIVILEGES.  TITLE 18 U.S.C. 6002 (1970 ED.) 
CODIFIES THE USE IMMUNITY PROVISION ENACTED IN THE ORGANIZED CRIME
CONTROL ACT OF 1970, 84 STAT. 927; 21 U.S.C. 884 (1970 ED.) CODIFIES
THE USE IMMUNITY PROVISION ENACTED IN SEC. 514(A) OF THE COMPREHENSIVE
DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970, 84 STAT. 1278. 

/12/  8 J. WIGMORE, EVIDENCE SEC. 2281, P. 495 N. 11 (MCNAUGHTON
REV. 1961), AND 1970 SUPP., P. 51. 

MALVINE NATHANSON ARGUED THE CAUSE FOR PETITIONER.  WITH HER ON THE
BRIEFS WAS WILLIAM E. HELLERSTEIN. 

STANLEY M. MEYER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS EUGENE GOLD. 
..END :
















MAYBERRY V. PENNSYLVANIA, 400 U.S. 455 


       MAYBERRY V. PENNSYLVANIA

        CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA

        NO. 121.  ARGUED DECEMBER 17, 1970-- DECIDED JANUARY 20,

           1971 


UNDER THE FACTS OF THIS CASE, A DEFENDANT IN A STATE CRIMINAL
CONTEMPT PROCEEDING WHO VILIFIED THE JUDGE DURING THE COURSE OF THE
DEFENDANT'S TRIAL IN THE STATE COURT AND WAS SENTENCED BY THAT JUDGE TO
11 TO 22 YEARS FOR THE CONTEMPT, WAS ENTITLED UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO A PUBLIC TRIAL BEFORE ANOTHER
JUDGE.  PP. 462-466. 

434 PA. 478, 255 A.2D 131, VACATED AND REMANDED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND BRENNAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  BURGER C.J., POST, P. 466, AND HARLAN, J., POST, P. 469, FILED
CONCURRING OPINIONS.  BLACK, J., FILED A SEPARATE STATEMENT, POST, P.
466. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER AND TWO CODEFENDANTS WERE TRIED IN A STATE COURT FOR
PRISON BREACH AND HOLDING HOSTAGES IN A PENAL INSTITUTION.  WHILE THEY
HAD APPOINTED COUNSEL AS ADVISERS, THEY REPRESENTED THEMSELVES.  THE
TRIAL ENDED WITH A JURY VERDICT OF GUILTY OF BOTH CHARGES ON THE 21ST
DAY, WHICH WAS A FRIDAY.  THE DEFENDANTS WERE BROUGHT IN FOR SENTENCING
ON THE FOLLOWING MONDAY.  BEFORE IMPOSING SENTENCE ON THE VERDICTS THE
JUDGE PRONOUNCED THEM GUILTY OF CRIMINAL CONTEMPT.  HE FOUND THAT
PETITIONER HAD COMMITTED ONE OR MORE CONTEMPTS ON 11 OF THE 21 DAYS OF
TRIAL AND SENTENCED HIM TO NOT LESS THAN ONE NOR MORE THAN TWO YEARS
FOR EACH OF THE 11 CONTEMPTS OR A TOTAL OF 11 TO 22 YEARS. 

THE SUPREME COURT OF PENNSYLVANIA AFFIRMED BY A DIVIDED VOTE.  434
PA. 478, 255 A.2D 131.  THE CASE IS HERE ON A PETITION FOR WRIT OF
CERTIORARI.  397 U.S. 1020. 

PETITIONER'S CONDUCT AT THE TRIAL COMES AS A SHOCK TO THOSE RAISED
IN THE WESTERN TRADITION THAT CONSIDERS A COURTROOM A HALLOWED PLACE OF
QUIET DIGNITY AS FAR REMOVED AS POSSIBLE FROM THE EMOTIONS OF THE
STREET. 

(1) ON THE FIRST DAY OF THE TRIAL PETITIONER CAME TO THE SIDE BAR TO
MAKE SUGGESTIONS AND OBTAIN RULINGS ON TRIAL PROCEDURES.  PETITIONER
SAID:  "IT SEEMS LIKE THE COURT HAS THE INTENTIONS OF RAILROADING US"
AND MOVED TO DISQUALIFY THE.JUDGE.  THE MOTION WAS DENIED. 
PETITIONER'S OTHER MOTIONS, INCLUDING HIS REQUEST THAT THE DEPUTY
SHERIFFS IN THE COURTROOM BE DRESSED AS CIVILIANS, WERE ALSO DENIED. 
THEN CAME THE FOLLOWING COLLOQUY: 

     "MR. MAYBERRY:  I WOULD LIKE TO HAVE A FAIR TRIAL OF THIS CASE

  AND LIKE TO BE GRANTED A FAIR TRIAL UNDER THE SIXTH AMENDMENT. 

     "THE COURT:  YOU WILL GET A FAIR TRIAL. 

     "MR. MAYBERRY:  IT DOESN'T APPEAR THAT I AM GOING TO GET ONE

  THE WAY YOU ARE OVERRULING ALL OUR MOTIONS AND THAT, AND BEING

  LIKE A HATCHET MAN FOR THE STATE. 

     "THE COURT:  THIS SIDE BAR IS OVER. 

     "MR. MAYBERRY:  WAIT A MINUTE, YOUR HONOR. 

     "THE COURT:  IT IS OVER. 

     "MR. MAYBERRY:  YOU DIRTY SONOFABITCH." 

(2) THE SECOND EPISODE TOOK PLACE ON THE EIGHTH DAY OF THE TRIAL.  A
CODEFENDANT WAS CROSS-EXAMINING A PRISON GUARD AND THE COURT SUSTAINED
OBJECTIONS TO CERTAIN QUESTIONS: 

     "MR. CODISPOTI:  ARE YOU TRYING TO PROTECT THE PRISON

  AUTHORITIES, YOUR HONOR?  IS THAT YOUR REASON? 

     "THE COURT:  YOU ARE OUT OF ORDER, MR. CODISPOTI.  I DON'T
WANT

ANY OUTBURSTS LIKE THAT AGAIN.  THIS IS A COURT OF JUSTICE.  YOU

  DON'T KNOW HOW TO ASK QUESTIONS. 

     "MR. MAYBERRY:  POSSIBLY YOUR HONOR DOESN'T KNOW HOW TO RULE
ON THEM. 

     "THE COURT:  YOU KEEP QUIET. 

     "MR. MAYBERRY:  YOU OUGHT TO BE GILBERT AND SULLIVAN THE WAY

  YOU SUSTAIN THE DISTRICT ATTORNEY EVERY TIME HE OBJECTS TO THE

  QUESTIONS. 

     "THE COURT:  ARE YOU THROUGH?  WHEN YOUR TIME COMES YOU CAN
ASK

  QUESTIONS AND NOT MAKE SPEECHES." 

(3) THE NEXT CHARGE STEMMED FROM THE EXAMINATION OF AN INMATE ABOUT
A RIOT IN PRISON IN WHICH PETITIONER APPARENTLY WAS IMPLICATED.  THERE
WERE MANY QUESTIONS ASKED AND MANY OBJECTIONS SUSTAINED.  AT ONE POINT
THE FOLLOWING OUTBURST OCCURRED: 

  "MR. MAYBERRY:  NOW, I'M GOING TO PRODUCE MY DEFENSE IN THIS

  CASE AND NOT BE RAILROADED INTO ANY LIFE SENTENCE BY ANY DIRTY,

  TYRANNICAL OLD DOG LIKE YOURSELF. 

"THE COURT:  YOU MAY PROCEED WITH YOUR QUESTIONING, MR. MAYBERRY." 

(4) THE FOURTH CHARGE GREW OUT OF AN EXAMINATION OF ANOTHER DEFENSE
WITNESS: 

     "BY MR. MAYBERRY: 

"Q.  I ASK YOU, MR. NARDI, IS THAT AREA, THE HANDBALL COURT, IS

  IT OPEN TO ANY PRISONER WHO WANTS TO PLAY HANDBALL, WHO CARES TO

  GO TO THAT AREA TO PLAY HANDBALL? 

     "A.  YES. 

     "Q.  DID YOU UNDERSTAND THE PRIOR QUESTION WHEN I ASKED YOU IF

  IT WAS FREELY OPEN AND ACCESSIBLE AREA? 

     "THE COURT:  HE ANSWERED YOUR QUESTION.  LET'S GO ON. 

     "MR. MAYBERRY:  I AM ASKING HIM NOW IF HE UNDERSTANDS-- 

     "THE COURT:  HE ANSWERED IT.  NOW, LET'S GO ON. 

     "MR. MAYBERRY:  I ASK YOUR HONOR TO KEEP YOUR MOUTH SHUT WHILE

  I'M QUESTIONING MY OWN WITNESS.  WILL YOU DO THAT FOR ME? 

     "THE COURT:  I WISH YOU WOULD DO THE SAME.  PROCEED WITH YOUR
QUESTIONING." 

(5) THE FIFTH CHARGE RELATES TO A PROTEST WHICH THE DEFENDANTS MADE
THAT AT THE END OF EACH TRIAL DAY THEY WERE DENIED ACCESS TO THEIR
LEGAL DOCUMENTS-- A CONDITION WHICH THE TRIAL JUDGE SHORTLY REMEDIED. 
THE FOLLOWING ENSUED: 

     "MR. MAYBERRY:  YOU'RE A JUDGE FIRST.  WHAT ARE YOU WORKING

  FOR?  THE PRISON AUTHORITIES, YOU BUM? 

     "MR. LIVINGSTON:  I HAVE A MOTION PENDING BEFORE YOUR HONOR. 

     "THE COURT:  I WOULD SUGGEST-- 

     "MR. MAYBERRY:  GO TO HELL.  I DON'T GIVE A GOOD GOD DAMN WHAT

  YOU SUGGEST, YOU STUMBLING DOG." 

MEANWHILE ONE DEFENDANT TOLD THE JUDGE IF HE DID NOT GET ACCESS TO
HIS PAPERS AT NIGHT HE'D "BLOW YOUR HEAD OFF."  ANOTHER DEFENDANT SAID
HE WOULD NOT SIT STILL AND BE "KOWTOWED AND BE RAILROADED INTO A LIFE
IMPRISONMENT."  THEN THE FOLLOWING TRANSPIRED: 

     "MR. MAYBERRY:  YOU STARTED ALL THIS BULLSHIT IN THE
BEGINNING. 

     "THE COURT:  YOU KEEP QUIET. 

     "MR. MAYBERRY:  WAIT A MINUTE. 

     "THE COURT:  YOU KEEP QUIET. 

     "MR. MAYBERRY:  I AM MY OWN COUNSEL. 

"THE COURT:  YOU KEEP QUIET. 

     "MR. MAYBERRY:  ARE YOU GOING TO GAG ME? 

     "THE COURT:  TAKE THESE PRISONERS OUT OF HERE WE WILL TAKE A

  TEN MINUTE RECESS, MEMBERS OF THE JURY." 

(6) THE SIXTH EPISODE HAPPENED WHEN TWO OF THE DEFENDANTS WANTED TO
HAVE SOME TIME TO TALK TO A WITNESS WHOM THEY HAD CALLED.  THE TWO OF
THEM HAD HAD A HEATED EXCHANGE WITH THE JUDGE WHEN THE FOLLOWING
HAPPENED: 

     "MR. MAYBERRY:  JUST ONE MOMENT, YOUR HONOR. 

     "THE COURT:  THIS IS NOT YOUR WITNESS, MR. MAYBERRY.  KEEP
QUIET. 

     "MR. MAYBERRY:  OH, YES, HE IS MY WITNESS, TOO.  HE IS MY

WITNESS, ALSO.  NOW, WE ARE AT THE PENITENTIARY AND IN

SECLUSION.  WE CAN'T TALK TO ANY OF OUR WITNESSES PRIOR TO

PUTTING THEM ON THE STAND LIKE THE DISTRICT ATTORNEY OBVIOUSLY

  HAS THE OPPORTUNITY, AND AS HE OBVIOUSLY MADE USE OF THE

  OPPORTUNITY TO TALK TO HIS WITNESSES.  NOW-- 

 "THE COURT:  NOW, I HAVE RULED, MR. MAYBERRY. 

     "MR. MAYBERRY:  I DON'T CARE WHAT YOU RULED.  THAT IS
UNIMPORTANT.  THE FACT IS-- 

     "THE COURT:  YOU WILL REMAIN QUIET, SIR, AND FINISH THE
EXAMINATION OF THIS WITNESS. 

     "MR. MAYBERRY:  NO, I WON'T BE QUIET WHILE YOU TRY TO DENY ME

 THE RIGHT TO A FAIR TRIAL.  THE ONLY WAY I WILL BE QUIET IS IF

  YOU HAVE ME GAGGED.  NOW, IF YOU WANT TO DO THAT, THAT IS UP TO

  YOU; BUT IN THE MEANTIME I AM GOING TO SAY WHAT I HAVE TO SAY. 

  NOW, WE HAVE THE RIGHT TO SPEAK TO OUR WITNESSES PRIOR TO PUTTING

  THEM ON THE STAND.  THIS IS AN ACCEPTED FACT OF LAW.  IT IS

  NOTHING NEW OR UNUSUAL.  NOW, YOU ARE GOING TO TRY TO FORCE US TO

  HAVE OUR WITNESS TESTIFY TO FACTS THAT HE HAS ONLY A HAZY

  RECOLLECTION OF THAT HAPPENED BACK IN 1965.  NOW, I BELIEVE WE

  HAVE THE RIGHT TO CONFER WITH OUR WITNESS PRIOR TO PUTTING HIM ON

  THE STAND. 

     "THE COURT:  ARE YOU FINISHED? 

     "MR. MAYBERRY:  I AM FINISHED. 

     "THE COURT: PROCEED WITH YOUR EXAMINATION." 

(7) THE SEVENTH CHARGE GREW OUT OF AN EXAMINATION OF A CODEFENDANT
BY PETITIONER.  THE FOLLOWING OUTBURST TOOK PLACE: 

     "BY MR. MAYBERRY: 

   "Q.  NO. DON'T STATE A CONCLUSION BECAUSE GILBERT IS GOING TO

  OBJECT AND SULLIVAN WILL SUSTAIN.  GIVE ME FACTS.  WHAT LEADS YOU

  TO SAY THAT?" 

LATER PETITIONER SAID: 

     "MR. MAYBERRY:  MY WITNESS ISN'T BEING IN AN INQUISITION, YOU

  KNOW.  THIS ISN'T THE SPANISH INQUISITION." 

FOLLOWING OTHER EXCHANGES WITH THE COURT, PETITIONER SAID: 

     "MR. MAYBERRY:  NOW, JUST WHAT DO YOU CALL PROPER?  I HAVE

  ASKED QUESTIONS, NUMEROUS QUESTIONS AND EVERYONE YOU SAID IS

  IMPROPER.  I HAVE ASKED QUESTIONS THAT MY ADVISER HAS GIVEN ME,

  AND I HAVE REPEATED THESE QUESTIONS VERBATIM AS THEY CAME OUT OF

  MY ADVISOR'S MOUTH, AND YOU SAID THEY ARE IMPROPER.  NOW JUST

  WHAT DO YOU CONSIDER PROPER? 

     "THE COURT:  I AM NOT HERE TO EDUCATE YOU, MR. MAYBERRY. 

     "MR. MAYBERRY:  NO. I KNOW YOU ARE NOT.  BUT YOU'RE HERE TO

  RAILROAD ME INTO NO LIFE BIT, EITHER. 

     "MR. CODISPOTI:  TO PROTECT THE RECORD-- 

  "THE COURT:  DO YOU HAVE ANY OTHER QUESTIONS TO ASK THIS
WITNESS? 

     "MR. MAYBERRY:  YOU NEED TO HAVE SOME KIND OF PSYCHIATRIC

  TREATMENT, I THINK.  YOU'RE SOME KIND OF A NUT.  I KNOW YOU'RE

  TRYING TO DO A GOOD JOB FOR THAT WARDEN MARONEY BACK THERE, BUT

  LET'S KEEP IT LOOKING DECENT ANYWAY, YOU KNOW.  DON'T MAKE IT SO

  OBVIOUS, YOUR HONOR." 

(8) A CODEFENDANT WAS REMOVED FROM THE COURTROOM AND WHEN HE
RETURNED PETITIONER ASKED FOR A SEVERANCE. 

     "MR. MAYBERRY:  I HAVE TO ASK FOR A SEVERANCE. 

     "THE COURT:  I HAVE HEARD THAT BEFORE.  IT IS DENIED AGAIN. 
LET'S GO ON." 

(EXCEPTION NOTED.) 

     "MR. MAYBERRY:  THIS IS THE CRAZIEST TRIAL I HAVE EVER SEEN. 

     "THE COURT:  YOU MAY CALL YOUR NEXT WITNESS, MR. MAYBERRY." 

PETITIONER WANTED TO CALL WITNESSES FROM THE PENITENTIARY WHOSE
NAMES HAD NOT BEEN SUBMITTED EARLIER AND FOR WHOM NO SUBPOENAS WERE
ISSUED.  THE COURT RESTRICTED THE WITNESSES TO THE LIST OF THOSE
SUBPOENAED: 

     "MR. MAYBERRY:  BEFORE I GET TO THAT I WOULD HAVE A RULING,
AND

  I DON'T CARE IF IT IS CONTEMPT OR WHATEVER YOU WANT TO CALL IT,

  BUT I WANT A RULING FOR THE RECORD THAT I AM BEING DENIED THESE

  WITNESSES THAT I ASKED FOR MONTHS BEFORE THIS TRIAL EVER BEGAN." 

(9) THE NINTH CHARGE AROSE OUT OF A RULING BY THE COURT ON A
QUESTION CONCERNING THE AVAILABILITY OF TOOLS TO PRISONERS IN THEIR
CELLS. 

     "THE COURT:  I HAVE RULED ON THAT, MR. MAYBERRY.  NOW PROCEED

  WITH YOUR QUESTIONING, AND DON'T ARGUE. 

"MR. MAYBERRY:  YOU'RE ARGUING.  I'M NOT ARGUING, NOT ARGUING WITH
FOOLS." 

(10) THE COURT NEAR THE END OF THE TRIAL HAD PETITIONER EJECTED FROM
THE COURTROOM SEVERAL TIMES.  THE CONTEMPT CHARGE WAS PHRASED AS
FOLLOWS BY THE COURT: 

     "ON DECEMBER 7, 1966, YOU HAVE CREATED A DESPICABLE SCENE IN

REFUSING TO CONTINUE CALLING YOUR WITNESSES AND IN CREATING SUCH

  CONSTERNATION AND UPROAR AS TO CAUSE A TERMINATION OF THE

  TRIAL." 

(11) AS THE COURT PREPARED TO CHARGE THE JURY, PETITIONER SAID: 

     "BEFORE YOU HONOR BEGINS THE CHARGE OF THE JURY DEFENDANT

  MAYBERRY WISHES TO PLACE HIS OBJECTION ON THE RECORD TO THE

  CHARGE AND TO THE WHOLE PROCEEDINGS FROM NOW ON, AND HE WISHES TO

  MAKE IT KNOWN TO THE COURT NOW THAT HE HAS NO INTENTION OF

  REMAINING SILENT WHILE THE COURT CHARGES THE JURY, AND THAT HE IS

 GOING TO CONTINUALLY OBJECT TO THE CHARGE OF THE COURT TO THE

  JURY THROUGHOUT THE ENTIRE CHARGE, AND HE IS NOT GOING TO REMAIN

  SILENT.  HE IS GOING TO DISRUPT THE PROCEEDINGS VERBALLY

  THROUGHOUT THE ENTIRE CHARGE OF THE COURT, AND ALSO HE IS GOING

  TO BE OBJECTING TO BEING FORCED TO TERMINATE HIS DEFENSE BEFORE

  HE WAS FINISHED." 

THE COURT THEREUPON HAD PETITIONER REMOVED FROM THE COUTROOM AND
LATER RETURNED GAGGED.  BUT PETITIONER CAUSED SUCH A COMMOTION UNDER
GAG THAT THE COURT HAD HIM REMOVED TO AN ADJACENT ROOM WHERE A
LOUDSPEAKER SYSTEM MADE THE COURTROOM PROCEEDINGS AUDIBLE.  THE COURT
PHRASED THIS CONTEMPT CHARGE AS FOLLOWS: 

"ON DECEMBER 9, 1966, YOU HAVE CONSTANTLY, BOISTEROUSLY, AND

  INSOLENTLY INTERRUPTED THE COURT DURING ITS ATTEMPTS TO CHARGE

  THE JURY, THEREBY CREATING AN ATMOSPHERE OF UTTER CONFUSION AND

  CHAOS." 

THESE BRAZEN EFFORTS TO DENOUNCE, INSULT, AND SLANDER THE COURT AND
TO PARALYZE THE TRIAL ARE AT WAR WITH THE CONCEPT OF JUSTICE UNDER
LAW.  LAYMEN, FOOLISHLY TRYING TO DEFEND THEMSELVES, MAY UNDERSTANDABLY
CREATE AWKWARD AND EMBARRASSING SCENES.  YET THAT IS NOT THE CHARACTER
OF THE RECORD REVEALED HERE.  WE HAVE HERE DOWNRIGHT INSULTS OF A TRIAL
JUDGE, AND TACTICS TAKEN FROM STREET BRAWLS AND TRANSPORTED TO THE
COURTROOM.  THIS IS CONDUCT NOT "BEFITTING AN AMERICAN COURTROOM," AS
WE SAID IN ILLINOIS V. ALLEN, /1/  397 U.S. 337, 346; AND CRIMINAL
CONTEMPT IS ONE APPROPRIATE REMEDY.  ID., AT 344-345. 

AS THESE SEPARATE ACTS OR OUTBURSTS TOOK PLACE, THE ARSENAL OF
AUTHORITY DESCRIBED IN ALLEN WAS AVAILABLE TO THE TRIAL JUDGE TO KEEP
ORDER IN THE COURTROOM.  HE COULD, WITH PROPRIETY, HAVE INSTANTLY
ACTED, HOLDING PETITIONER IN CONTEMPT, OR EXCLUDING HIM FROM THE
COURTROOM, OR OTHERWISE INSULATING HIS VULGARITY FROM THE COURTROOM. 
THE COURT NOTED IN SACHER V. UNITED STATES, 343 U.S. 1, 10, THAT WHILE
INSTANT ACTION MAY BE TAKEN AGAINST A LAWYER WHO IS GUILTY OF CONTEMPT,
TO PRONOUNCE HIM GUILTY OF CONTEMPT IS "NOT UNLIKELY TO PREJUDICE HIS
CLIENT."  THOSE CONSIDERATIONS ARE NOT PERTINENT HERE WHERE PETITIONER
UNDERTOOK TO REPRESENT HIMSELF.  IN SACHER THE TRIAL JUDGE WAITED UNTIL
THE END OF THE TRIAL TO IMPOSE PUNISHMENT FOR CONTEMPT, THE COURT
SAYING: 

"IF WE WERE TO HOLD THAT SUMMARY PUNISHMENT CAN BE IMPOSED ONLY
INSTANTLY UPON THE EVENT, IT WOULD BE AN INCENTIVE TO PRONOUNCE, WHILE
SMARTING UNDER THE IRRITATION OF THE CONTEMPTUOUS ACT, WHAT SHOULD BE A
WELL-CONSIDERED JUDGMENT.  WE THINK IT LESS LIKELY THAT UNFAIR
CONDEMNATION OF COUNSEL WILL OCCUR IF THE MORE DELIBERATE COURSE BE
PERMITTED."  ID., AT 11. 

GENERALIZATIONS ARE DIFFICULT.  INSTANT TREATMENT OF CONTEMPT WHERE
LAWYERS ARE INVOLVED MAY GREATLY PREJUDICE THEIR CLIENTS BUT IT MAY BE
THE ONLY WISE COURSE WHERE OTHERS ARE INVOLVED.  MOREOVER, WE DO NOT
SAY THAT THE MORE VICIOUS THE ATTACK ON THE JUDGE THE LESS QUALIFIED HE
IS TO ACT.  A JUDGE CANNOT BE DRIVEN OUT OF A CASE.  WHERE, HOWEVER, HE
DOES NOT ACT THE INSTANT THE CONTEMPT IS COMMITTED, BUT WAITS UNTIL THE
END OF THE TRIAL ON BALANCE, IT IS GENERALLY WISE WHERE THE MARKS OF
THE UNSEEMLY CONDUCT HAVE LEFT PERSONAL STINGS TO ASK A FELLOW JUDGE TO
TAKE HIS PLACE.  WHAT CHIEF JUSTICE TAFT SAID IN COOKE V. UNITED
STATES, 267 U.S. 517, 539, IS RELEVANT HERE:   "THE POWER OF CONTEMPT
WHICH A JUDGE MUST HAVE AND EXERCISE IN PROTECTING THE DUE AND ORDERLY
ADMINISTRATION OF JUSTICE AND IN MAINTAINING THE AUTHORITY AND DIGNITY
OF THE COURT IS MOST IMPORTANT AND INDISPENSABLE.  BUT ITS EXERCISE IS
A DELICATE ONE AND CARE IS NEEDED TO AVOID ARBITRARY OR OPPRESSIVE
CONCLUSIONS.  THIS RULE OF CAUTION IS MORE MANDATORY WHERE THE CONTEMPT
CHARGED HAS IN IT THE ELEMENT OF PERSONAL CRITICISM OR ATTACK UPON THE
JUDGE.  THE JUDGE MUST BANISH THE SLIGHTEST PERSONAL IMPULSE TO
REPRISAL, BUT HE SHOULD NOT BEND BACKWARD AND INJURE THE AUTHORITY OF
THE COURT BY TOO GREAT LENIENCY.  THE SUBSTITUTION OF ANOTHER JUDGE
WOULD AVOID EITHER TENDENCY BUT IT IS NOT ALWAYS POSSIBLE.  OF COURSE
WHERE ACTS OF CONTEMPT ARE PALPABLY AGGRAVATED BY A PERSONAL ATTACK
UPON THE JUDGE IN ORDER TO DRIVE THE JUDGE OUT OF THE CASE FOR ULTERIOR
REASONS, THE SCHEME SHOULD NOT BE PERMITTED TO SUCCEED.  BUT ATTEMPTS
OF THIS KIND ARE RARE.  ALL OF SUCH CASES, HOWEVER, PRESENT DIFFICULT
QUESTIONS FOR THE JUDGE.  ALL WE CAN SAY UPON THE WHOLE MATTER IS THAT
WHERE CONDITIONS DO NOT MAKE IT IMPRACTICABLE, OR WHERE THE DELAY MAY
NOT INJURE PUBLIC OR PRIVATE RIGHT, A JUDGE CALLED UPON TO ACT IN A
CASE OF CONTEMPT BY PERSONAL ATTACK UPON HIM, MAY, WITHOUT FLINCHING
FROM HIS DUTY, PROPERLY ASK THAT ONE OF HIS FELLOW JUDGES TAKE HIS
PLACE." 

WE CONCLUDE THAT THAT COURSE SHOULD HAVE BEEN FOLLOWED HERE, AS
MARKED PERSONAL FEELINGS WERE PRESENT ON BOTH SIDES. 

WHETHER THE TRIAL BE FEDERAL OR STATE, THE CONCERN OF DUE PROCESS IS
WITH THE FAIR ADMINISTRATION OF JUSTICE.  AT TIMES A JUDGE HAS NOT BEEN
THE IMAGE OF "THE IMPERSONAL AUTHORITY OF LAW" (OFFUTT V. UNITED
STATES, 348 U.S. 11, 17) BUT HAS BECOME SO "PERSONALLY EMBROILED" WITH
A LAWYER IN THE TRIAL AS TO MAKE THE JUDGE UNFIT TO SIT IN JUDGMENT ON
THE CONTEMPT CHARGE. 

"THE VITAL POINT IS THAT IN SITTING IN JUDGMENT ON SUCH A
MISBEHAVING LAWYER THE JUDGE SHOULD NOT HIMSELF GIVE VENT TO PERSONAL
SPLEEN OR RESPOND TO A PERSONAL GRIEVANCE.  THESE ARE SUBTLE MATTERS,
FOR THEY CONCERN THE INGREDIENTS OF WHAT CONSTITUTES JUSTICE. 
THEREFORE, JUSTICE MUST SATISFY THE APPEARANCE OF JUSTICE."  ID., AT
14. 

OFFUTT DOES NOT FIT THIS CASE, FOR THE STATE JUDGE IN THE INSTANT
CONTROVERSY WAS NOT AN ACTIVIST SEEKING COMBAT.  RATHER, HE WAS THE
TARGET OF PETITIONER'S INSOLENCE.  YET A JUDGE, VILIFIED AS WAS THIS
PENNSYLVANIA JUDGE, NECESSARILY BECOMES EMBROILED IN A RUNNING, BITTER
CONTROVERSY.  NO ONE SO CRUELLY SLANDERED IS LIKELY TO MAINTAIN THAT
CALM DETACHMENT NECESSARY FOR FAIR ADJUDICATION.  IN RE MURCHISON, 349
U.S. 133, WAS A CASE WHERE A JUDGE ACTED UNDER STATE LAW AS A ONE-MAN
GRAND JURY AND LATER TRIED WITNESSES FOR CONTEMPT WHO REFUSED TO ANSWER
QUESTIONS PROPOUNDED BY THE "JUDGE-GRAND JURY."  WE HELD THAT SINCE THE
JUDGE WHO SAT AS A ONE-MAN GRANDJURY WAS PART OF THE ACCUSATORY PROCESS
HE "CANNOT BE, IN THE VERY NATURE OF THINGS, WHOLLY DISINTERESTED IN
THE CONVICTION OR ACQUITTAL OF THOSE ACCUSED."  ID., AT 137.  "FAIR
TRIALS ARE TOO IMPORTANT A PART OF OUR FREE SOCIETY TO LET PROSECUTING
JUDGES BE TRIAL JUDGES OF THE CHARGES THEY PREFER."  IBID. 

IT IS, OF COURSE, NOT EVERY ATTACK ON A JUDGE THAT DISQUALIFIES HIM
FROM SITTING.  IN UNGAR V. SARAFITE, 376 U.S. 575, WE RULED THAT A
LAWYER'S CHALLENGE, THOUGH "DISRUPTIVE, RECALCITRANT AND DISAGREEABLE
COMMENTARY," WAS STILL NOT "AN INSULTING ATTACK UPON THE INTEGRITY OF
THE JUDGE CARRYING SUCH POTENTIAL FOR BIAS AS TO REQUIRE
DISQUALIFICATION."  ID.,AT 584.  MANY OF THE WORDS LEVELED AT THE JUDGE
IN THE INSTANT CASE WERE HIGHLY PERSONAL ASPERSIONS, EVEN "FIGHTING
WORDS"-- "DIRTY SONOFABITCH," "DIRTY TYRANNICAL OLD DOG," "STUMBLING
DOG," AND "FOOL."  HE WAS CHARGED WITH RUNNING A SPANISH INQUISITION
AND TOLD TO "GO TO HELL" AND "KEEP YOUR MOUTH SHUT."  INSULTS OF THAT
KIND ARE APT TO STRIKE "AT THE MOST VULNERABLE AND HUMAN QUALITIES OF A
JUDGE'S TEMPERAMENT."  BLOOM V. ILLINOIS, 391 U.S. 194, 202. 

OUR CONCLUSION IS THAT BY REASON OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT A DEFENDANT IN CRIMINAL CONTEMPT PROCEEDINGS
SHOULD BE GIVEN A PUBLIC TRIAL BEFORE A JUDGE OTHER THAN THE ONE
REVILED BY THE CONTEMNOR.  SEE IN RE OLIVER, 333 U.S. 257.  IN THE
PRESENT CASE THAT REQUIREMENT CAN BE SATISFIED ONLY IF THE JUDGMENT OF
CONTEMPT IS VACATED SO THAT ON REMAND ANOTHER JUDGE, NOT BEARING THE
STRING OF THESE SLANDEROUS REMARKS AND HAVING THE IMPERSONAL AUTHORITY
OF THE LAW, SITS IN JUDGMENT ON THE CONDUCT OF PETITIONER AS SHOWN BY
THE RECORD." 

              VACATED AND REMANDED. 

/1/  PETITIONER WAS SENTENCED FOR CONTEMPT DECEMBER 12, 1966.  THE
PENNSYLVANIA SUPREME COURT AFFIRMED ON APRIL 23, 1969.  WE DECIDED
ILLINOIS V. ALLEN ON MARCH 31, 1970. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND WITH ALL OPINION
EXCEPT THAT PART WHICH INDICATES THAT THE JUDGE WITHOUT A JURY COULD
HAVE CONVICTED MAYBERRY OF CONTEMPT INSTANTANEOUSLY WITH THE OUTBURST. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I CONCUR THE COURT'S OPINION AND ADD THESE ADDITIONAL OBSERVATIONS
CHIEFLY FOR EMPHASIS.  CERTAIN ASPECTS OF THE PROBLEM OF MAINTAINING IN
COURTROOMS THE INDISPENSABLE ATMOSPHERE OF QUIET ORDERLINESS ARE
CRUCIAL.  WITHOUT ORDER AND QUIET,THE ADVERSARY PROCESS MUST FAIL. 
THREE FACTORS SHOULD BE NOTED:  (1) AS MR. JUSTICE DOUGLAS HAS SAID,
THE TRIAL WAS CONDUCTED WITHOUT THE GUIDANCE AFFORDED BY MR. JUSTICE
BLACK'S OPINION FOR THE COURT IN ILLINOIS V. ALLEN, 397 U.S. 337; (2)
ALTHOUGH THE ACCUSED WAS AFFORDED COUNSEL AT HIS TRIAL HE ASSERTED A
RIGHT TO ACT AS HIS OWN COUNSEL AND THE COURT PERMITTED HIM TO DO SO;
(3) WE ARE NOT INFORMED WHETHER PENNSYLVANIA HAS A STATUTE COVERING
OBSTRUCTION OF JUSTICE THAT WOULD REACH THE CONDUCT OF THE ACCUSED
SHOWN BY THIS RECORD. 

       (1) 

AS THE COURT'S OPINION SUGGESTS, THE STANDARDS OF ILLINOIS V. ALLEN,
SUPRA, WOULD HAVE ENABLED THE TRIAL JUDGE TO REMOVE THE ACCUSED FROM
THE COURTROOM AFTER HIS FIRST OUTRAGEOUS ACTIONS AND WORDS, AND TO
SUMMARILY PUNISH HIM FOR CONTEMPT.  THE CONTEMPT POWER, HOWEVER, IS OF
LIMITED UTILITY IN DEALING WITH AN INCORRIGIBLE, A CUNNING PSYCHOPATH,
OR AN ACCUSED BENT ON FRUSTRATING THE PARTICULAR TRIAL OR UNDERMINING
THE PROCESSES OF JUSTICE.  FOR SUCH AS THESE, SUMMARY REMOVAL FROM THE
COURTROOM IS THE REALLY EFFECTIVE REMEDY.  INDEED IT IS ONE, AS THIS
CASE SHOWS, WHERE REMOVAL COULD WELL BE A BENEFIT TO THE ACCUSED IN THE
SENSE THAT ONE EPISODE OF CONTEMPTUOUS CONDUCT WOULD BE LESS LIKELY TO
TURN A JURY AGAINST HIM THAN 11 EPISODES.  AS NOTED BY MR. JUSTICE
BLACK IN ILLINOIS V. ALLEN, AND MR. JUSTICE DOUGLAS HERE, A FIXED RULE
TO FIT EVERY SITUATION IS NOT FEASIBLE; PLAINLY SUMMARY REMOVAL IS THE
MOST SALUTARY REMEDY IN CASES SUCH AS THIS. 

        (2) 

HERE THE ACCUSED WAS ACTING AS HIS OWN COUNSEL BUT HAD A COURT
APPOINTED LAWYER AS WELL.  THIS SUGGESTS THE WISDOM OF THE TRIAL JUDGE
IN HAVING COUNSEL REMAIN IN THE CASE EVEN IN THE LIMITED ROLE OF A
CONSULTANT.  WHEN A DEFENDANT REFUSES COUNSEL, AS HE DID HERE, OR SEEKS
TO DISCHARGE HIM, A TRIAL JUDGE IS WELL ADVISED-- AS SO MANY DO-- TO
HAVE SUCH "STANDBY COUNSEL" TO PERFORM ALL THE SERVICES A TRAINED
ADVOCATE WOULD PERFORM ORDINARILY BY EXAMINATION AND CROSS-EXAMINATION
OF WITNESSES, OBJECTING TO EVIDENCE AND MAKING CLOSING ARGUMENT.  NO
CIRCUMSTANCE THAT COMES TO MIND ALLOWS AN ACCUSED TO INTERFERE WITH THE
ABSOLUTE RIGHT OF A TRIAL JUDGE TO HAVE SUCH "STANDBY COUNSEL" TO
PROTECT THE RIGHTS OF ACCUSED PERSONS "FOOLISHLY TRYING TO DEFEND
THEMSELVES."  AS MR. JUSTICE DOUGLAS SO APTLY DESCRIBED IT.  IN EVERY
TRIAL THERE IS MORE AT STAKE THAN JUST THE INTERESTS OF THE ACCUSED;
THE INTEGRITY OF THE PROCESS WARRANTS A TRIAL JUDGE'S EXERCISING HIS
DISCRETION TO HAVE COUNSEL PARTICIPATE IN THE DEFENSE EVEN WHEN
REJECTED.  A CRIMINAL TRIAL IS NOT A PRIVATE MATTER; THE PUBLIC
INTEREST IS SO GREAT THAT THE PRESENCE AND PARTICIPATION OF COUNSEL,
EVEN WHEN OPPOSED BY THE ACCUSED, IS WARRANTED IN ORDER TO VINDICATE
THE PROCESS ITSELF.  THE VALUE OF THE PRECAUTION OF HAVING INDEPENDENT
COUNSEL, EVEN IF UNWANTED, IS UNDERSCORED BY SITUATIONS WHERE THE
ACCUSED IS REMOVED FROM THE COURTROOM UNDER ILLINOIS V. ALLEN.  THE
PRESENCE OF COUNSEL FAMILIAR WITH THE CASE WOULD AT THE VERY LEAST
BLUNT SIXTH AMENDMENT CLAIMS, ASSUMING THEY WOULD HAVE MERIT, WHEN THE
ACCUSED HAS REFUSED LEGAL ASSISTANCE AND THEN BROUGHT ABOUT HIS OWN
REMOVAL FROM THE PROCEEDINGS. 

        (3) 

THERE ARE OTHER MEANS TO COPE WITH GRAVE MISCONDUCT IN THE
COURTROOM, WHETHER THAT OF THE ACCUSED, HIS COUNSEL, SPECTATORS, OR
OTHERS.  STATUTES DEFINING OBSTRUCTION OF JUSTICE HAVE LONG BEEN IN
FORCE IN MANY STATES, WITH PENALTIES MEASURED IN YEARS OF CONFINEMENT. 
SUCH STATUTES, WHERE AVAILABLE, ARE AN OBVIOUS RESPONSE TO THOSE WHO
SEEK TO FRUSTRATE A PARTICULAR TRIAL OR UNDERMINE THE PROCESSES OF
JUSTICE GENERALLY. 

A REVIEW OF THIS RECORD WARRANTS A CLOSING COMMENT ON THE EXEMPLARY
PATIENCE OF THE TRIAL JUDGE UNDER PROVOCATION FEW HUMAN BEINGS COULD
ACCEPT WITH EQUANIMITY.  OUR HOLDING THAT CONTEMPT CASES WITH PENALTIES
OF THE MAGNITUDE IMPOSED HERE SHOULD BE HEARD BY ANOTHER JUDGE DOES NOT
REFLECT ON HIS PERFORMANCE; IT RELATES RATHER TO A QUESTION OF
PROCEDURE. 

MR. JUSTICE HARLAN, CONCURRING. 

I CONCUR IN THE JUDGMENT OF REVERSAL SOLELY ON THE GROUND THAT THESE
CONTEMPT CONVICTIONS MUST BE REGARDED AS INFECTED BY THE FACT THAT THE
UNPRECEDENTED LONG SENTENCE OF 22 YEARS WHICH THEY CARRIED WAS IMPOSED
BY A JUDGE WHO HIMSELF HAD BEEN THE VICTIM OF PETITIONER'S SHOCKINGLY
ABUSIVE CONDUCT.  THAT CIRCUMSTANCES SEEMS TO ME TO DEPRIVE THE
CONTEMPT PROCEEDING OF THE APPEARANCE OF EVENHANDED JUSTICE WHICH IS AT
THE CORE OF DUE PROCESS.  FOR THIS REASON, I THINK THE CONTEMPT
CONVICTIONS MUST BE SET ASIDE, LEAVING THE STATE FREE TO TRY THE
CONTEMPT SPECIFICATIONS BEFORE ANOTHER JUDGE OR TO PROCEED OTHERWISE
AGAINST THIS PETITIONER. 

IT IS UNFORTUNATE THAT THIS COURT'S DECISION IN ILLINOIS V. ALLEN,
397 U.S. 337 (1970), WAS NOT ON THE BOOKS AT THE TIME THE CRIMINAL CASE
AGAINST THIS PETITIONER WAS ON TRIAL.  THE COURSES WHICH THAT DECISION
LAYS OPEN TO TRIAL JUDGES FOR COPING WITH OUTRAGEOUS COURTROOM TACTICS
OF THE SORT ENGAGED IN BY THIS PETITIONER WOULD DOUBTLESS HAVE ENABLED
JUDGE FIOK TO DEAL WITH THE PETITIONER IN A MANNER THAT WOULDHAVE
OBVIATED THE REGRETTABLE NECESSITY FOR SETTING ASIDE THIS CONTEMPT
CONVICTION. 

CURTIS R. REITZ, BY APPOINTMENT OF THE COURT, 398 U.S. 902, ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

CAROL MAY LOS ARGUED THE CAUSE FOR RESPONDENT, PRO HAC VICE.  WITH
HER ON THE BRIEF WAS ROBERT W. DUGGAN. 
..END :




WISCONSIN V. CONSTANTINEAU, 400 U.S. 433 


       WISCONSIN V. CONSTANTINEAU

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

DISTRICT OF WISCONSIN

        NO. 95.  ARGUED DECEMBER 10, 1970-- DECIDED JANUARY 19,

           1971 


THE POLICE CHIEF OF HARTFORD, WISCONSIN, PURSUANT TO A STATE STATUTE,
CAUSED TO BE POSTED A NOTICE IN ALL RETAIL LIQUOR OUTLETS IN HARTFORD
THAT SALES OR GIFTS OF LIQUOR TO APPELLEE, A RESIDENT OF THAT CITY,
WERE FORBIDDEN FOR ONE YEAR.  THE STATUTE PROVIDES FOR SUCH "POSTING,"
WITHOUT NOTICE OR HEARING, WITH RESPECT TO ANY PERSON WHO "BY EXCESSIVE
DRINKING" PRODUCES CERTAIN CONDITIONS OR EXHIBITS SPECIFIED TRAITS,
SUCH AS EXPOSING HIMSELF OR FAMILY "TO WANT" OR BECOMING "DANGEROUS TO
THE PEACE" OF THE COMMUNITY.  ON APPELLEE'S SUIT SEEKING, INTER ALIA,
INJUNCTIVE RELIEF, A THREE-JUDGE FEDERAL COURT HELD THE STATUTE
UNCONSTITUTIONAL AS VIOLATIVE OF PROCEDURAL DUE PROCESS.  HELD: 

1.  THE LABEL OR CHARACTERIZATION GIVEN AN INDIVIDUAL BY "POSTING,"
THOUGH A MARK OF SERIOUS ILLNESS TO SOME, IS TO OTHERS SUCH A STIGMA OR
BADGE OF DISGRACE THAT PROCEDURAL DUE PROCESS REQUIRES NOTICE AND AN
OPPORTUNITY TO BE HEARD.  PP. 436-437. 

2.  SINCE HERE THE STATE STATUTE IS UNAMBIGUOUS AND THERE IS NO
UNCERTAIN ISSUE OF STATE LAW, THE FEDERAL COURT PROPERLY PROCEEDED TO
DETERMINE THE FEDERAL CONSTITUTIONAL CLAIM.  ZWINCKLER V. KOOTA, 389
U.S. 241, 250-251.  PP. 437-439. 

302 F.SUPP.  861, AFFIRMED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH HARLAN,
BRENNAN, STEWART, WHITE, AND MARSHALL, JJ., JOINED.  BURGER, C.J.,
FILED A DISSENTING OPINION, IN WHICH BLACKMUN, J., JOINED, POST, P.
439.  BLACK, J., FILED A DISSENTING OPINION, IN WHICH BLACKMUN, J.,
JOINED, POST, P. 443. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLEE IS AN ADULT RESIDENT OF HARTFORD, WIS.  SHE BROUGHT SUIT IN
A FEDERAL DISTRICT COURT IN WISCONSIN TO HAVE A WISCONSIN STATUTE
DECLARED UNCONSTITUTIONAL.  /1/  A THREE-JUDGE COURT WAS CONVENED, 28
U.S.C. 2281.  THAT COURT, BY A DIVIDED VOTE, HELD THE ACT
UNCONSTITUTIONAL, 302 F.SUPP.  861, AND WE NOTED PROBABLE
JURISDICTION.  397 U.S. 985. 

THE ACT, WIS. STAT. SEC. 176.26 (1967), PROVIDES THAT DESIGNATED
PERSONS MAY IN WRITING FORBID THE SALE OR GIFT OF INTOXICATING LIQUORS
TO ONE WHO "BY EXCESSIVE DRINKING" PRODUCES DESCRIBED CONDITIONS OR
EXHIBITS SPECIFIED TRAITS, SUCH AS EXPOSING HIMSELF OR FAMILY "TO WANT"
OR BECOMING "DANGEROUS TO THE PEACE" OF THE COMMUNITY.  /2/ 

THE CHIEF OF POLICE OF HARTFORD, WITHOUT NOTICE OR HEARING TO
APPELLEE, CAUSED TO BE POSTED A NOTICE IN ALL RETAIL LIQUOR OUTLETS IN
HARTFORD THAT SALES OF LIQUORS TO APPELLEE WERE FORBIDDEN FOR ONE
YEAR.  THEREUPON THIS SUIT WAS BROUGHT AGAINST THE CHIEF OF POLICE
CLAIMING DAMAGES AND ASKING FOR INJUNCTIVE RELIEF.  THE STATE OF
WISCONSIN INTERVENED AS A DEFENDANT ON THE INJUNCTIVE PHASE OF THE CASE
AND THAT WAS THE ONLY ISSUE TRIED AND DECIDED, THE THREE-JUDGE COURT
HOLDING THE ACT UNCONSTITUTIONAL ON ITS FACE AND ENJOINING ITS
ENFORCEMENT.  THE COURT SAID: 

     "IN 'POSTING' AN INDIVIDUAL, THE PARTICULAR CITY OFFICIAL OR

  SPOUSE IS DOING MORE THAN DENYING HIM THE ABILITY TO PURCHASE

  ALCOHOLIC BEVERAGES WITHIN THE CITY LIMITS.  IN ESSENCE, HE IS

  GIVING NOTICE TO THE PUBLIC THAT HE HAS FOUND THE PARTICULAR

  INDIVIDUAL'S BEHAVIOR TO FALL WITHIN ONE OF THE CATEGORIES

  ENUMERATED IN THE STATUTES.  IT WOULD BE NAIVE NOT TO RECOGNIZE

  THAT SUCH 'POSTING' OR CHARACTERIZATION OF AN INDIVIDUAL WILL

  EXPOSE HIM TO PUBLIC EMBARRASSMENT AND RIDICULE, AND IT IS OUR

  OPINION THAT PROCEDURAL DUE PROCESS REQUIRES THAT BEFORE ONE

ACTING PURSUANT TO STATE STATUTE CAN MAKE SUCH A QUASIJUDICIAL

  DETERMINATION, THE INDIVIDUAL INVOLVED MUST BE GIVEN NOTICE OF

  THE INTENT TO POST AND AN OPPORTUNITY TO PRESENT HIS SIDE OF THE

  MATTER."  302 F.SUPP.,AT 864. 

WE HAVE NO DOUBT AS TO THE POWER OF A STATE TO DEAL WITH THE EVILS
DESCRIBED IN THE ACT.  THE POLICE POWER OF THE STATES OVER INTOXICATING
LIQUORS WAS EXTREMELY BROAD EVEN PRIOR TO THE TWENTY-FIRST AMENDMENT. 
CRANE V. CAMPBELL, 245 U.S. 304.  THE ONLY ISSUE PRESENT HERE IS
WHETHER THE LABEL OR CHARACTERIZATION GIVEN A PERSON BY "POSTING,"
THOUGH A MARK OF SERIOUS ILLNESS TO SOME, IS TO OTHERS SUCH A STIGMA OR
BADGE OF DISGRACE THAT PROCEDURAL DUE PROCESS REQUIRES NOTICE AND AN
OPPORTUNITY TO BE HEARD.  WE AGREE WITH THE DISTRICT COURT THAT THE
PRIVATE INTEREST IS SUCH THAT THOSE REQUIREMENTS OF PROCEDURAL DUE
PROCESS MUST BE MET. 

IT IS SIGNIFICANT THAT MOST OF THE PROVISIONS OF THE BILL OF RIGHTS
ARE PROCEDURAL, FOR IT IS PROCEDURE THAT MARKS MUCH OF THE DIFFERENCE
BETWEEN RULE BY LAW AND RULE BY FIAT. 

WE REVIEWED IN CAFETRIA WORKERS V. MCELROY, 367 U.S. 886, 895, THE
NATURE OF THE VARIOUS "PRIVATE INTERESTS)" THAT HAVE FALLEN ON ONE SIDE
OR THE OTHER OF THE LINE.  SEE ALSO SNIADACH V. FAMILY FINANCE CORP.,
395 U.S. 337, 339-342.  GENERALIZATIONS ARE HAZARDOUS AS SOME STATE AND
FEDERAL ADMINISTRATIVE PROCEDURES ARE SUMMARY BY REASON OF NECESSITY OR
HISTORY.  YET CERTAINLY WHERE THE STATE ATTACHES "A BADGE OF INFAMY" TO
THE CITIZEN, DUE PROCESS COMES INTO PLAY.  WIEMAN V. UPDEGRAFF, 344
U.S. 183, 191.  "(THE RIGHT TO BE HEARD BEFORE BEING CONDEMNED TO
SUFFER GRIEVOUS LOSS OF ANY KIND, EVEN THOUGH IT MAY NOT INVOLVE THE
STIGMA AND HARDSHIPS OF A CRIMINAL CONVICTION, IS A PRINCIPLE BASIC TO
OUR SOCIETY."  ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 123, 168
(FRANKFURTER, J., CONCURRING). 

WHERE A PERSON'S GOOD NAME, REPUTATION, HONOR, OR INTEGRITY IS AT
STAKE BECAUSE OF WHAT THE GOVERNMENT IS DOING TO HIM, NOTICE AND AN
OPPORTUNITY TO BE HEARD ARE ESSENTIAL.  "POSTING" UNDER THE WISCONSIN
ACT MAY TO SOME BE MERELY A MARK OF ILLNESS, TO OTHERS IT IS A STIGMA,
AN OFFICIAL BRANDING OF A PERSON.  THE LABEL IS A DEGRADING ONE.  UNDER
THE WISCONSIN ACT, A RESIDENT OF HARTFORD IS GIVEN NO PROCESS AT ALL. 
THIS APPELLEE WAS NOT AFFORDED A CHANCE TO DEFEND HERSELF.  SHE MAY
HAVE BEEN THE VICTIM OF AN OFFICIAL'S CAPRICE.  ONLY WHEN THE WHOLE
PROCEEDINGS LEADING TO THE PINNING OF AN UNSAVORY LABEL ON A PERSON ARE
AIRED CAN OPPRESSIVE RESULTS BE PREVENTED. 

IT IS SUGGESTED THAT THE THREE-JUDGE COURT SHOULD HAVE STAYED ITS
HAND WHILE THE AGGRIEVED PERSON REPAIRED TO THE STATE COURTS TO OBTAIN
A CONSTRUCTION OF THE ACT OR RELIEF FROM IT.  THE FACT THAT WISCONSIN
DOES NOT RAISE THE POINT DOES NOT, OF COURSE, MEAN THAT IT LACKS
MERIT.  YET THE SUGGESTION IS NOT IN KEEPING WITH THE PRECEDENTS. 

CONGRESS COULD, OF COURSE, HAVE ROUTED ALL FEDERAL CONSTITUTIONAL
QUESTIONS THROUGH THE STATE COURT SYSTEMS, SAVING TO THIS COURT THE
FINAL SAY WHEN IT CAME TO REVIEW OF THE STATE COURT JUDGMENTS.  BUT OUR
FIRST CONGRESS /3/  RESOLVED DIFFERENTLY AND CREATED THE FEDERAL COURT
SYSTEM AND IN TIME GRANTED THE FEDERAL COURTS VARIOUS HEADS OF
JURISDICTION, /4/  WHICH TODAY INVOLVE MOST FEDERAL CONSTITUTIONAL
RIGHTS.  ONCE THAT JURISDICTION WAS GRANTED, THE FEDERAL COURTS
RESOLVED THOSE QUESTIONS EVEN WHEN THEY WERE ENMESHED WITH STATE LAW
QUESTIONS.  IN 1941 WE GAVE VIGOR TO THE SO-CALLED ABSTENTION DOCTRINE
IN RAILROAD COMMISSIONER V. PULLMAN CO., 312 U.S. 496.  IN THAT CASE AN
AUTHORITATIVE RESOLUTION OF A KNOTTY STATE LAW QUESTION MIGHT END THE
LITIGATION AND NOT GIVE RISE TO ANY FEDERAL CONSTITUTIONAL CLAIM.  ID.,
AT 501.  WE, THEREFORE, DIRECTED THE DISTRICT COURT TO RETAIN THE SUIT
PENDING A DETERMINATION BY A STATE COURT OF THE UNDERLYING STATE LAW
QUESTION.  WE APPLIED THE ABSTENTION DOCTRINE MOST RECENTLY IN FORNARIS
V. RIDGE TOOL CO., ANTE, P. 41, WHERE A RELATIVELY NEW PUERTO RICAN
STATUTE, WHICH HAD NOT BEEN AUTHORITATIVELY CONSTRUED BY THE
COMMONWEALTH'S COURTS, "MIGHT BE JUDICIALLY CONFINED TO A MORE NARROW
AMBIT WHICH WOULD AVOID ALL CONSTITUTIONAL QUESTIONS."  WE ORDERED THE
FEDERAL COURTS TO STAY THEIR HANDS UNTIL THE PUERTO RICAN COURTS HAD
SPOKEN.  SPEAKING OF REETZ V. BOZANICH, 397 U.S. 82, WE NOTED THAT THE
"THREE-JUDGE FEDERAL COURT SHOULD NOT HAVE PROCEEDED TO STRIKE DOWN AN
ALASKA LAW WHICH, IF CONSTRUED BY THE ALASKA SUPREME COURT, MIGHT BE SO
CONFINED AS NOT TO HAVE ANY CONSTITUTIONAL INFIRMITY."  ANTE, AT 43. 
BUT THE ABSTENTION RULE ONLY APPLIES WHERE "THE ISSUE OF STATE LAW IS
UNCERTAIN."  HARMAN V. FORSSENIUS, 380 U.S. 528, 534.  THUS OUR
ABSTENTION CASES HAVE DEALT WITH UNRESOLVED QUESTIONS OF STATE LAW
WHICH ONLY A STATE TRIBUNAL COULD AUTHORITATIVELY CONSTRUE.  REETZ V.
BOZANICH, SUPRA; CITY OF MERIDIAN V. SOUTHERN BELL TEL. & TEL. CO., 358
U.S. 639. 

IN THE PRESENT CASE THE WISCONSIN ACT DOES NOT CONTAIN ANY PROVISION
WHATSOEVER FOR NOTICE AND HEARING.  THERE IS NO AMBIGUITY IN THE STATE
STATUTE.  THERE ARE NO PROVISIONS WHICH COULD FAIRLY BE TAKEN TO MEAN
THAT NOTICE AND HEARING MIGHT BE GIVEN UNDER SOME CIRCUMSTANCES OR
UNDER SOME CONSTRUCTION BUT NOT UNDER OTHERS.  THE ACT ON ITS FACE
GIVES THE CHIEF OF POLICE THE POWER TO DO WHAT HE DID TO THE APPELLEE. 
HENCE THE NAKED QUESTION, UNCOMPLICATED BY AN UNRESOLVED STATE LAW, IS
WHETHER THAT ACT ON ITS FACE IS UNCONSTITUTIONAL.  AS WE SAID IN
ZWICKLER V. KOOTA, 389 U.S. 241, 251, ABSTENTION SHOULD NOT BE ORDERED
MERELY TO AWAIT AN ATTEMPT TO VINDICATE THE CLAIM IN A STATE COURT. 
WHERE THERE IS NO AMBIGUITY IN THE STATE STATUTE,THE FEDERAL COURT
SHOULD NOT ABSTAIN BUT SHOULD PROCEED TO DECIDE THE FEDERAL
CONSTITUTIONAL CLAIM.  ID., AT 250-251.  WE WOULD NEGATE THE HISTORY OF
THE ENLARGEMENT OF THE JURISDICTION OF THE FEDERAL DISTRICT COURTS, /5/
IF WE HELD THE FEDERAL COURT SHOULD STAY ITS HAND AND NOT DECIDE THE
QUESTION BEFORE THE STATE COURTS DECIDED IT.

              AFFIRMED. 

/1/  28 U.S.C. 1343 PROVIDES:  "THE DISTRICT COURTS SHALL HAVE
ORIGINAL JURISDICTION OF ANY CIVIL ACTION AUTHORIZED BY LAW TO BE
COMMENCED BY ANY PERSON . . . . (3) TO REDRESS THE DEPRIVATION, UNDER
COLOR OF ANY STATE LAW, STATUTE, ORDINANCE,REGULATION, CUSTOM OR USAGE,
OF ANY RIGHT, PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE
UNITED STATES OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF
CITIZENS OR OF ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED
STATES." 

/2/  SECTION 176.26 READS AS FOLLOWS: 

"(1) WHEN ANY PERSON SHALL BY EXESSIVE DRINKING OF INTOXICATING
LIQUORS, OR FERMENTED MALT BEVERAGES MISSPEND, WASTE OR LESSEN HIS
ESTATE SO AS TO EXPOSE HIMSELF OR FAMILY TO WANT, OR THE TOWN, CITY,
VILLAGE OR COUNTY TO WHICH HE BELONGS TO LIABILITY FOR THE SUPPORT OF
HIMSELF OR FAMILY, OR SO AS THEREBY TO INJURE HIS HEALTH, ENDANGER THE
LOSS THEREOF, OR TO ENDANGER THE PERSONAL SAFETY AND COMFORT OF HIS
FAMILY OR ANY MEMBER THEREOF, OR THE SAFETY OF ANY OTHER PERSON OR THE
SECURITY OF THE PROPERTY OF ANY OTHER PERSON, OR WHEN ANY PERSON SHALL,
ON ACCOUNT OF THE USE OF INTOXICATING LIQUORS OR FERMENTED MALT
BEVERAGES, BECOME DANGEROUS TO THE PEACE OF ANY COMMUNITY, THE WIFE OF
SUCH PERSON, THE SUPERVISORS OF SUCH TOWN, THE MAYOR, CHIEF OF POLICE
OR ALDERMAN OF SUCH CITY, THE TRUSTEES OF SUCH VILLAGE, THE COUNTY
SUPERINTENDENT OF THE POOR OF SUCH COUNTY, THE CHAIRMAN OF THE COUNTY
BOARD OF SUPERVISORS OF SUCH COUNTY, THE DISTRICT ATTORNEY OF SUCH
COUNTY OR ANY OF THEM, MAY IN WRITING SIGNED BY HER, HIM OR THEM,
FORBID ALL PERSONS KNOWINGLY TO SELL OR GIVE AWAY TO SUCH PERSON ANY
INTOXICATING LIQUORS OR FERMENTED MALT BEVERAGES, FOR THE SPACE OF ONE
YEAR AND IN LIKE MANNER MAY FORBID THE SELLING, FURNISHING, OR GIVING
AWAY OF ANY SUCH LIQUORS OR FERMENTED MALT BEVERAGES, KNOWINGLY TO SUCH
PERSON BY ANY PERSON IN ANY TOWN, CITY OR VILLAGE TO WHICH SUCH PERSON
MAY RESORT FOR THE SAME.  A COPY OF SAID WRITING SO SIGNED SHALL BE
PERSONALLY SERVED UPON THE PERSON SO INTENDED TO BE PROHIBITED FROM
OBTAINING ANY SUCH LIQUOR OR BEVERAGE. 

"(2) AND THE WIFE OF SUCH PERSON, THE SUPERVISORS OF ANY TOWN, THE
ALDERMAN OF ANY CITY, THE TRUSTEES OF ANY VILLAGE, THE COUNTY
SUPERINTENDENT OF THE POOR OF SUCH COUNTY, THE MAYOR OF ANY CITY, THE
CHAIRMAN OF THE COUNTY BOARD OF SUPERVISORS OF SUCH COUNTY, THE
DISTRICT ATTORNEY OR SHERIFF OF SUCH COUNTY, MAY, BY A NOTICE MADE AND
SIGNED AS AFORESAID, IN LIKE MANNER FORBID ALL PERSONS IN SUCH TOWN,
CITY OR VILLAGE, TO SELL OR GIVE AWAY INTOXICATING LIQUORS OR DRINKS OR
FERMENTED MALT BEVERAGES TO ANY PERSON GIVEN TO THE EXCESSIVE USE OF
SUCH LIQUORS, DRINKS OR BEVERAGES, SPECIFYING SUCH PERSON, AND SUCH
NOTICE SHALL HAVE THE SAME FORCE AND EFFECT WHEN SUCH SPECIFIED PERSON
IN A NONRESIDENT AS IS HEREIN PROVIDED WHEN SUCH SPECIFIED PERSON IS A
RESIDENT OF SAID TOWN, CITY OR VILLAGE." 

MISDEMEANOR. 

/3/  THE FIRST JUDICIARY ACT IS IN 1 STAT. 73. 

/4/  28 U.S.C. 1343 (3) INVOLVED IN THE PRESENT CASE CAME INTO THE
STATUTES IN 1871.  17 STAT. 13.  IN 1875 CONGRESS ENLARGED FEDERAL
JURISDICTION BY AUTHORIZING THE "FEDERAL QUESTION" JURISDICTION
PRESENTLY CONTAINED IN 28 U.S.C. 1331.  SEE 18 STAT. 470.  WE RECENTLY
REVIEWED THIS HISTORY IN ZWICKLER V. KOOTER, 389 U.S. 241, 245-248. 

/5/  SEE N. 4, SUPRA. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACKMUN JOINS,
DISSENTING. 

THE COURT TODAY STRIKES DOWN, AS UNCONSTITUTIONAL A WISCONSIN
STATUTE THAT HAS NEVER BEEN CHALLENGED OR TESTED IN THE WISCONSIN STATE
COURTS.  THE JUDGES OF WISCONSIN PROBABLY WILL BE TAKEN BY SURPRISE BY
OUR SUMMARY ACTION SINCE FEW, IF ANY, HAVE EVER HEARD OF THIS CASE. 

VERY LIKELY WE REACH A CORRECT RESULT SINCE THE WISCONSIN STATUTE
APPEARS, ON ITS FACE AND IN ITS APPLICATION, TO BE IN CONFLICT WITH
ACCEPTED CONCEPTS OF DUE PROCESS. 

THE REASON FOR MY DISSENT IS THAT IT SEEMS TO ME A VERY ODD BUSINESS
TO STRIKE DOWN A STATE STATUTE, ON THE BOOKS FOR ALMOST 40 YEARS,
WITHOUT ANY OPPORTUNITY FOR THE STATE COURTS TO DISPOSE OF THE PROBLEM
EITHER UNDER THE WISCONSIN CONSTITUTION OR THE U.S. CONSTITUTION.  FOR
ALL WE KNOW, THE STATE COURTS WOULD FIND THIS STATUTE INVALID UNDER THE
STATE CONSTITUTION, /1/ BUT NO ONE ON EITHER SIDE OF THE CASE THOUGHT
TO DISCUSS THIS OR EXHIBIT ANY INTEREST IN THE SUBJECT.  SINCE NO ONE
COULD REASONABLY THINK THAT THE JUDGES OF WISCONSIN HAVE LESS FIDELITY
TO DUE PROCESS REQUIREMENTS OF THE FEDERAL CONSTITUTION THAN WE DO,
THIS CASE IS, FOR ME, A CLASSIC ILLUSTRATION OF ONE IN WHICH WE SHOULD
DECLINE TO ACT UNTIL RESORT TO STATE COURTS HAS BEEN EXHAUSTED.  AT
ORAL ARGUMENT COUNSEL FOR MRS. CONSTANTINEAU WAS CANDID IN SAYING THAT
HE HAD DELIBERTLY AVOIDED RESORT TO THE STATE COURTS BECAUSE HE COULD
SECURE, AND INDEED DID SECURE, A THREE-JUDGE FEDERAL DISTRICT COURT TO
DECIDE THE ISSUE AND, IN THAT POSTURE, APPEAL WOULD LIE DIRECTLY TO
THIS COURT. 

ONLY RECENTLY IN THE 1969 TERM WE HELD UNANIMOUSLY THAT A CHALLENGE,
UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND UNDER
CERTAIN PROVISIONS OF THE ALASKA CONSTITUTION, TO THE CONSTITUTIONALITY
OF A STATE STATUTE RESTRICTING COMMERCIAL SALMON FISHING LICENSES
SHOULD NOT HAVE BEEN DECIDED BY THE FEDERAL DISTRICT COURTS UNTIL THE
COURTS OF ALASKA HAD ACTED.  THERE, AS HERE, THE STATUTE'S CHALLENGER
WANTED TO USE THE "SHORT CUT" CONGRESS HAS AUTHORIZED.  AS HERE, THE
"SHORT CUT" WAS TO CONVENE A THREE-JUDGE FEDERAL DISTRICT COURT WHICH
HELD THE ALASKA STATUTE INVALID.  NOTWITHSTANDING THAT THE LICENSE
APPLICANTS PRESENTED A SOUND CLAIM, MR. JUSTICE DOUGLAS, SPEAKING FOR A
UNANIMOUS COURT, SAID: 

     "WE ARE ADVISED THAT THE PROVISIONS OF THE ALASKA CONSTITUTION

  AT ISSUE HAVE NEVER BEEN INTERPRETED BY AN ALASKA COURT.  THE

  DISTRICT COURT, FEELING SURE OF ITS GROUNDS ON THE MERITS, HELD,

  HOWEVER, THAT THIS WAS NOT A PROPER CASE FOR ABSTENTION, SAYING

  THAT 'IF THE QUESTION HAD BEEN PRESENTED TO AN ALASKA COURT, IT

  WOULD HAVE SHARED OUR CONVICTION THAT THE CHALLENGED GEAR

  LICENSING SCHEME IS NOT SUPPORTABLE.'  297 F.SUPP.,AT 304.  THE

  THREE-JUDGE PANEL WAS A DISTINGUISHED ONE, TWO BEING FORMER

  ALASKA LAWYERS.  AND THEY FELT THAT PROMPT DECISION WAS NECESSARY

  TO AVOID THE 'GRAVE AND IRREPARABLE' INJURY TO THE 'ECONOMIC

  LIVELIHOOD' OF THE APPELLEES WHICH WOULD RESULT, IF THEY COULD

  NOT ENGAGE IN THEIR OCCUPATION 'DURING THIS YEAR'S FORTHCOMING

  FISHING SEASON.'  IDIB. 

     "IT IS, OF COURSE, TRUE THAT ABSTENTION IS NOT NECESSARY

  WHENEVER A FEDERAL COURT IS FACED WITH A QUESTION OF LOCAL LAW,

  THE CLASSIC CASE BEING MEREDITH V. WINTER HAVEN, 320 U.S. 228,

  WHERE FEDERAL JURISDICTION WAS BASED ON DIVERSITY ONLY. 

  ABSTENTION CERTAINLY INVOLVES DUPLICATION OF EFFORT AND EXPENSE

  AND AN ATTENDANT DELAY.  SEE ENGLAND V. LOUISIANA STATE BOARD,

  375 U.S. 411.  THAT IS WHY WE HAVE SAID THAT THIS JUDICIALLY

CREATED RULE WHICH STEMS FROM RAILROAD COMM'N V. PULLMAN CO., 312

  U.S. 496, SHOULD BE APPLIED ONLY WHERE 'THE ISSUE OF STATE LAW IS

  UNCERTAIN.'  HARMAN V. FORSSENIUS, 380 U.S. 528, 534."  REETZ V.

  BOZANICH, 397 U.S. 82, 86 (1970). 

THIS VERY WISE DOCTRINE IS AN ESSENTIAL ONE OF POLICY AND IS A
KEYSTONE OF FEDERALISM.  PREVIOUSLY THIS COURT HAD UNDERSCORED THIS
CONCEPT, SAYING: 

     "PROPER EXERCISE OF FEDERAL JURISDICTION REQUIRES THAT

  CONTROVERSIES INVOLVING UNSETTLED QUESTIONS OF STATE LAW BE

  DECIDED IN THE STATE TRIBUNALS PRELIMINARY TO A FEDERAL COURT'S

  CONSIDERATION OF THE UNDERLYING FEDERAL CONSTITUTIONAL

  QUESTIONS.  . . . IN SUCH A CASE, WHEN THE STATE COURT'S

  INTERPRETATION OF THE STATUTE OR EVALUATION OF ITS VALIDITY UNDER

  THE STATE CONSTITUTION MAY OBVIATE ANY NEED TO CONSIDER ITS

VALIDITY UNDER THE FEDERAL CONSTITUTION, THE FEDERAL COURT SHOULD

  NOT HOLD ITS HANDS, LEST IT RENDER A CONSTITUTIONAL DECISION

  UNNECESSARILY."  CITY OF MERIDAN V. SOUTHERN BELL TEL. & TEL.

  CO., 358 U.S. 639, 640-641 (1959). 

SEE ALSO FORNARIS V. RIDGE TOOL CO., ANTE, P. 41. 

IT IS NO ANSWER TO CONTEND THAT THERE IS NO AMBIGUITY IN THE
WISCONSIN STATUTE AND HENCE NO NEED TO ABSTAIN; IN REETZ THE ALASKA
STATUTE COULD NOT HAVE BEEN MORE PLAIN, OR LESS SUSCEPTIBLE OF A
LIMITING CONSTRUCTION.  YET, IN FURTHERANCE OF THIS COURT'S FIRM POLICY
TO STEER AROUND HEAD-ON COLLISIONS WITH THE STATES BY AVOIDING
UNNECESSARY CONSTITUTIONAL DECISIONS, WE REVERSED THE DISTRICT COURT
AND REMANDED WITH INSTRUCTIONS TO STAY ITS HAND WHILE THE LITIGANTS
EXHAUSTED STATE COURT REMEDIES FOR RESOLUTION OF THEIR CHALLENGE TO THE
STATUTE.  SEE ALSO FORNARIS V. RIDGE TOOL CO., SUPRA.  REETZ CANNOT BE
DISTINGUISHED AND I SEE NO REASON TO DEPART FROM THE PRINCIPLES IT
REAFFIRMED.  /2/ 

I QUITE AGREE THAT THERE IS NO ABSOLUTE DUTY TO ABSTAIN-- TO STAY
OUR HAND-- UNTIL THE STATE COURTS HAVE AT LEAST BEEN ASKED TO CONSTRUE
THEIR OWN STATUTE, BUT FOR ME IT IS THE NEGATION OF SOUND JUDICIAL
ADMINISTRATION-- AND AN UNWARRANTED USE OF A LIMITED JUDICIAL RESOURCE-
TO IMPOSE THIS KIND OF CASE ON A THREE-JUDGE FEDERAL DISTRICT COURT,
AND THEN, BY DIRECT APPEAL, ON THIS COURT.  INDEED, IN MY VIEW, A THREE
JUDGE DISTRICT COURT WOULD BE WELL ADVISED IN CASES SUCH AS THIS,
INVOLVING NO URGENCY OR QUESTION OF LARGE IMPORT, TO DECLINE TO ACT. 

THIS COURT HAS AN ABUNDANCE OF IMPORTANT WORK TO DO, WHICH, IF IT IS
TO BE DONE WELL, SHOULD NOT BE SUBJECT TO THE ADDED PRESSURES OF NON
URGENT STATE CASES WHICH THE STATE COURTS HAVE NEVER BEEN CALLED ON TO
RESOLVE.  NEITHER THE HISTORIC ROLE OF THIS COURT NOR ANY REASONABLE
DUTY PLACED ON US, CALLS FOR OUR DIRECT INTERVENTION WHEN NO REASON FOR
EXPEDITED REVIEW IS SHOWN.  HERE WE HAVE AN EXAMPLE OF AN UNWISE
STATUTE MAKING DIRECT REVIEW PRIMA FACIE AVAILABLE, AND AN
UNWILLINGNESS BY THE COURT TO FOLLOW ITS OWN PRECEDENTS BY DECLINING TO
PASS ON THE WISCONSIN STATUTE BEFORE WISCONSIN COURTS DO SO.  WE SHOULD
REMAND THIS CASE WITH DIRECTIONS TO THE THREE-JUDGE COURT TO REFRAIN
FROM ACTING UNTIL THE WISCONSIN COURTS HAVE ACTED. 

/1/  ALTHOUGH WISCONSIN HAS NO DUE PROCESS CLAUSE AS SUCH, ART. I,
SEC. 1, OF THE WISCONSIN CONSTITUTION HAS BEEN HELD BY THE WISCONSIN
SUPREME COURT TO BE SUBSTANTIALLY EQUIVALENT TO THE LIMITATION ON STATE
ACTION CONTAINED IN THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT.  PAULY V. KEEBLER, 175 WISC.  428, 185 N.W. 554
(1921). 

/2/  HERE THERE IS NOT THE URGENCY PRESENTED BY REETZ WHERE OUR
ACTION IN REMANDING FOR STATE COURT CONSIDERATION EFFECTIVELY PRECLUDED
APPELLEES FROM SECURING A COMMERCIAL FISHING LICENSE FOR AT LEAST ONE
OR MORE SEASONS.  NO SUCH URGENCY IS PRESENTED BY THE INSTANT CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE BLACKMUN JOINS,
DISSENTING. 

I AGREE SUBSTANTIALLY WITH THE DISSENT OF THE CHIEF JUSTICE.  I
WOULD VACATE THE DISTRICT COURT'S JUDGMENT AND REMAND WITH DIRECTIONS
TO WITHHOLD ITS PROCEEDINGS TO ENABLE APPELLEE TO FILE A DECLARATORY
JUDGMENT OR OTHER STATE COURT ACTION CHALLENGING THE POLICE CHIEF'S
POSTING OF NOTICES IN ALL HARTFORD RETAIL LIQUOR OUTLETS FORBIDDING
SALES OR GIFTS OF LIQUORS TO APPELLEE FOR ONE YEAR.  AS THE COURT'S
OPINION, THE CASES THERE CITED, AND THE CHIEF JUSTICE'S DISSENT POINT
OUT, SUCH A COURSE OF ACTION IS JUSTIFIED "WHERE THE ISSUE OF STATE LAW
IS UNCERTAIN" AND WHERE THE STATE COURT MIGHT CONFINE THE STATE LAW'S
MEANING SO "AS NOT TO HAVE ANY CONSTITUTIONAL INFIRMITY."  THE
WISCONSIN ACT APPEARS ON ITS FACE TO GRANT AUTHORITY TO A MAN'S WIFE, A
MAYOR, A TOWN'S SUPERVISORS, THE COUNTY SUPERINTENDENT OF THE POOR, A
SHERIFF, OR A DISTRICT ATTORNEY TO POST NOTICES FOR FORBIDDING LIQUOR
ESTABLISHMENTS FROM GIVING OR SELLING ANY ALCOHOLIC BEVERAGES TO THE
PERSON SO POSTED.  THE EFFECT OF SUCH SWEEPING POWERS, IF THERE IS
NOTHING ELSE IN THE STATE'S LAW TO LIMIT THEM, IS PRACTICALLY THE SAME
AS THAT OF AN OLD COMMON-LAW BILL OF ATTAINDER, AGAINST WHICH OUR
FOREBEARS HAD SUCH AN ABHORRENCE THAT THEY FORBADE IT IN ART. I, SEC.
9, OF THE CONSTITUTION.  SEE, E.G., UNITED STATES V. LOVETT, 328 U.S.
303 (1946).  AND HERE THE WISCONSIN LAW PURPORTS ON ITS FACE TO PLACE
SUCH ARBITRARY AND TYRANNICAL POWER IN THE HANDS OF MINOR OFFICERS AND
OTHERS THAT THESE MODERN BILLS OF ATTAINDER CAN BE ISSUED EX PARTE,
WITHOUT NOTICE OR HEARING OF ANY KIND OR CHARACTER.  IT IS IMPOSSIBLE
FOR ME TO BELIEVE THAT THE SUPREME COURT OF WISCONSIN WOULD UPHOLD ANY
SUCH BOUNDLESS POWER OVER THE LIVES AND LIBERTIES OF ITS CITIZENS.  IT
SEEMS TO ME THEREFORE WHOLLY UNCERTAIN THAT THE STATE LAW HAS THE
MEANING IT PURPORTS TO HAVE, AND I BELIEVE IT IS UNFAIR TO WISCONSIN TO
PERMIT ITS COURTS TO BE DENIED THE OPPORTUNITY OF CONFINING THIS LAW
WITHIN ITS PROPER LIMITS IF IT COULD BE SHOWN THAT THERE ARE OTHER
STATE LAW PROVISIONS THAT COULD PROVIDE SUCH BOUNDARIES.  FOR EXAMPLE,
NOTICE AND HEARING MIGHT BE PROVIDED BY PRINCIPLES OF STATE
ADMINISTRATIVE PROCEDURE ACT. 

I REALIZE THAT THERE ARE MANY CASES WHERE FEDERAL COURTS SHOULD NOT
STAY THEIR HANDS TO PERMIT STATE COURTS TO INTERPRET STATE LAW. 
COMPARE CLAY V. SUN INSURANCE OFFICE, 363 U.S. 207, 2130227 (BLACK, J.,
DISSENTING), WITH BURFORD V. SUN OIL CO., 319 U.S. 315 (1943).  HERE,
HOWEVER, NO STATE COURT APPEARS TO HAVE PASSED ON THIS ACT AT ALL, AND
A STATE DECISION MIGHT WELL APPLY THE BODY OF OTHER STATE LAW TO
REQUIRE NOTICE, HEARING, AND OTHER NECESSARY PROVISIONS TO RENDER THE
CHALLENGED ACT CONSTITUTIONAL. 

BENJAMIN SOUTHWICK, ASSISTANT ATTORNEY GENERAL OF WISCONSIN, ARGUED
THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF WERE ROBERT W. WARREN,
ATTORNEY GENERAL, AND ROBERT D. MARTINSON, ASSISTANT ATTORNEY GENERAL. 

S. A. SCHAPIRO ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 
..END :








PROCUNIER V. ATCHLEY, 400 U.S. 446 


       PROCUNIER, DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS V.

           ATCHLEY

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 44.  ARGUED NOVEMBER 18, 1970-- DECIDED JANUARY 19,

           1971 


RESPONDENT WAS CONVICTED IN 1959 OF MURDERING HIS WIFE.  A RECORDED
STATEMENT, MADE IN JAIL TO AN INSURANCE AGENT IN CONNECTION WITH
DISCUSSION OF A POLICY ON THE LIFE OF RESPONDENT'S WIFE, WAS ADMITTED
INTO EVIDENCE AT THE TRIAL.  THE CALIFORNIA SUPREME COURT AFFIRMED THE
CONVICTION, FINDING THE STATEMENT VOLUNTARY.  RESPONDENT LATER SOUGHT
FEDERAL HABEAS CORPUS RELIEF, CONTENDING THAT THE STATEMENT WAS
INVOLUNTARY.  THE DISTRICT COURT GRANTED RELIEF ON THE GROUND THAT THE
TRIAL COURT HAD EXCLUDED RELEVANT EVIDENCE ON THE ISSUE OF
VOLUNTARINESS AND THUS "DID NOT RELIABLY DETERMINE WHETHER (THE)
CONFESSION WAS VOLUNTARYOR INVOLUNTARY."  THE COURT OF APPEALS
AFFIRMED.  HELD:  AN APPLICANT FOR FEDERAL HABEAS CORPUS RELIEF IS NOT
ENTITLED TO A NEW HEARING ON THE VOLUNTARINESS OF A STATEMENT
INTRODUCED AT HIS TRIAL MERELY BECAUSE HE CAN POINT TO SHORTCOMINGS IN
THE STATE COURT PROCEDURE USED TO DECIDE THE VOLUNTARINESS ISSUE, AS HE
MUST ALSO SHOW (WHICH RESPONDENT DID NOT DO IN THIS CASE) THAT HIS
VERSION OF THE EVENTS, IF TRUE, WOULD REQUIRE THE CONCLUSION THAT THE
STATEMENT WAS INVOLUNTARY.  PP. 451-454. 

412 F.2D 230, REVERSED. 

STEWART, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, HARLAN, BRENNAN, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  BLACK, J., FILED A CONCURRING STATEMENT, POST, P. 454. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1959 A JURY IN A CALIFORNIA TRIAL COURT FOUND THE RESPONDENT
GUILTY OF MURDERING HIS WIFE BY FIRING SIX BULLETS INTO HER BODY AT
CLOSE RANGE.  A KEY PROSECUTION WITNESS AT THE TRIAL WAS RAY TRAVERS,
AN INSURANCE AGENT.  TWO DAYS AFTER THE RESPONDENT'S WIFE WAS KILLED,
TRAVERS VISITED THE RESPONDENT IN JAIL AT THE LATTER'S REQUEST, AND THE
TWO CONVERSED REGARDING AN INSURANCE POLICY ON THE LIFE OF THE
DECEDENT.  DURING THE COURSE OF THIS CONVERSATION THE RESPONDENT TOLD
TRAVERS HIS VERSION OF HOW HIS WIFE HAD BEEN KILLED, ADMITTING THAT HE
HAD LAIN IN WAIT FOR HER WITH A GUN, BUT INSISTING THAT HER SHOOTING
HAD BEEN ACCIDENTAL.  AS HE WAS LEAVING THE JAIL, TRAVERS TOLD THE
SHERIFF'S OFFICERS ABOUT THE RESPONDENT'S STATEMENT.  THEY ASKED HIM IF
HE WOULD BE WILLING TO HAVE HIS NEXT CONVERSATION WITH THE RESPONDENT
ELECTRONICALLY RECORDED, AND, SINCE HE PLANNED TO RETURN TO GET
ADDITIONAL INFORMATION FOR THE INSURANCE COMPANY, HE AGREED.  LATER THE
SAME DAY TRAVERS RETURNED TO THE JAIL AND HAD ANOTHER CONVERSATION WITH
THE RESPONDENT, IN THE COURSE OF WHICH THE RESPONDENT AGAIN GAVE
TRAVERS SUBSTANTIALLY THE SAME ACCOUNT OF THE CIRCUMSTANCES OF HIS
WIFE'S DEATH.  THIS CONVERSATION WAS RECORDED.  /1/  OVER THE OBJECTION
OF DEFENSE COUNSEL, THE RECORDING OF THE SECOND CONVERSATION WAS
ADMITTED IN EVIDENCE AT THE TRIAL.  TRAVERS IN DETAILED TESTIMONY
VERFIED THE AUTHENTICITY OF THE RECORDING, AND ORALLY RECOUNTED THE TWO
CONVERSATIONS HE HAD HAD WITH THE RESPONDENT.  THE ACCURACY OF THE
RECORDING AND OF TRAVER'S TESTIMONY WAS NOT QUESTIONED; INDEED, WHEN
THE RESPONDENT TOOK THE STAND HE GAVE SUBSTANTIALLY THE SAME ACCOUNT OF
HOW HIS WIFE HAD BEEN KILLED THAT HE HAD GIVEN TO TRAVERS. 

ON APPEAL TO THE SUPREME COURT OF CALIFORNIA, THE RESPONDENT
CONTENDED THAT THE SECOND CONVERSATION WITH TRAVERS WAS AN INVOLUNTARY
CONFESSION, AND THAT THE RECORD OF THE CONVERSATION AND TRAVERS'
SUPPORTING TESTIMONY HAD, THEREFORE, BEEN WRONGLY ADMITTED IN EVIDENCE
AT THE TRIAL.  THE STATE APPELLATE COURT UNANIMOUSLY REJECTED THIS
CONTENTION AND AFFIRMED THE CONVICTION.  PEOPLE V. ATCHLEY, 53 CAL.2D
160, 346 P.2D 764.  PROCEEDING UPON THE PROPOSITION THAT "ANY STATEMENT
BY AN ACCUSED RELATIVE TO THE OFFENSE CHARGED IS INADMISSIBLE AGAINST
HIM IF MADE INVOLUNTARILY."  JUSTICE TRAYNOR'S OPINION FOR THE SUPREME
COURT OF CALIFORNIA REASONED AS FOLLOWS: 

"TRAVERS TESTIFIED THAT NO THREATS WERE MADE, THAT NO INDUCEMENTS
WERE OFFERED, AND THAT IN AN EARLIER CONVERSATION DEFENDANT HAD
VOLUNTEERED SUBSTANTIALLY THE SAME STATEMENTS WITHOUT BEING ASKED. 
DEFENDANT AT NO TIME CONTRADICTED THIS TESTIMONY OR SUGGESTED THAT ANY
OF HIS RECORDED STATEMENTS WERE UNTRUE.  MOREOVER, THE RECORDED
CONVERSATION DEMONSTRATES THAT TRAVERS REFERRED TO THE INSURANCE POLICY
TO EXPLAIN WHY HE WAS ASKING QUESTIONS AND NOT AS AN INDUCEMENT FOR ANY
PARTICULAR ANSWERS.  THE TRIAL COURT LISTENED TO THE TAPE IN CHAMBERS
BEFORE RULING ON ITS ADMISSIBILITY.  THERE IS THEREFORE NO MERIT IN
DEFENDANT'S CONTENTION THAT THE RECORDING WAS ADMITTED WITHOUT A PROPER
SHOWING THAT HIS STATEMENTS WERE MADE VOLUNTARILY. 

     "DEFENDANT ALSO CONTENDS THAT THE RECORDING WAS OBTAINED BY

  SUCH FRAUD THAT ITS USE AS EVIDENCE WAS INCONSISTENT WITH DUE

  PROCESS.  HE RELIES PRIMARILY ON LEYRA V.DENNO, 347 U.S. 566.  .
.

  . ALTHOUGH THERE WAS A SIMILAR DECEPTION IN THE PRESENT CASE,

  THERE WAS NO COMPARABLE MENTAL COERCION.  THE DECEPTION ITSELF

  DOES NOT RENDER DEFENDANT'S STATEMENTS INADMISSIBLE, FOR IT WAS

  NOT OF A TYPE REASONABLY LIKELY TO PROCURE AN UNTRUE STATEMENT. 
.

  . .

     "WHILE CROSS-EXAMINING TRAVERS AS TO THE VOLUNTARINESS OF

  DEFENDANT'S RECORDED STATEMENTS, DEFENSE COUNSEL ATTEMPTED TO ASK

  WHETHER DEFENDANT HAD COMPLAINED TO TRAVERS OF NOT BEING

  PERMITTED BY THE POLICE, DESPITE NUMEROUS REQUESTS, TO TALK TO A

 LAWYER.  THE TRIAL COURT SUSTAINED AN OBJECTION TO THIS QUESTION

  AND EXPLAINED TO THE JURY THAT THE ANSWER WOULD HAVE NO BEARING

  ON THE QUESTION OF VOLUNTARINESS.  DEFENDANT CORRECTLY CONTENDS

  THAT THIS RULING WAS ERRONEOUS, BUT FAILS TO SHOW THAT IT WAS

  PREJUDICIAL.  ALTHOUGH A REFUSAL TO PERMIT DEFENDANT TO TALK TO

  COUNSEL SUGGESTS AN INTENT TO COERCE, IT SEEMS HIGHLY IMPROBABLE

  THAT EITHER THE TRIAL JUDGE OR THE JURY WOULD HAVE INFERRED

  COERCION FROM SUCH A REFUSAL ALONE IN THE LIGHT OF THE

  SUBSTANTIAL AND UNCONTRADICTED EVIDENCE THAT NO COERCION OCCURRE

."  53 CAL.,2D,AT 170-171, 346 P.2D,AT 769-770. 

THIS COURT GRANTED CERTIORARI.  /2/  AFTER HEARING ARGUMENT, WE
DISPOSED OF THE CASE AS FOLLOWS: 

     "AFTER HEARING ORAL ARGUMENT AND FULLY EXAMINING THE RECORD,
WE

  CONCLUDE THAT THE TOTALITY OF CIRCUMSTANCES AS THE RECORD MAKES

  THEM MANIFEST DID NOT WARRANT BRINGING THE CASE HERE. 

  ACCORDINGLY, THE WRIT IS DISMISSED."  /3/ 

IN 1967 THE RESPONDENT INITIATED THE PRESENT HABEAS CORPUS
PROCEEDING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA.  HE CONTENDED THAT DECISIONS OF THIS COURT
RENDERED SUBSEQUENT TO HIS DIRECT APPEAL HAD ESTABLISHED THAT THE
RECORDING OF HIS CONVERSATION WITH TRAVERS HAD BEEN UNCONSTITUTIONALLY
INTRODUCED INTO EVIDENCE, AND THAT HE WAS ACCORDINGLY ENTITLED TO A NEW
TRIAL.  IT WAS ASSERTED THAT HIS STATEMENTS WERE INVOLUNTARY UNDER THE
CRITERIA STATED IN JOHNSON V. NEW JERSEY, 384 U.S. 719, BECAUSE HE HAD
BEEN DENIED ACCESS TO A LAWYER AND BECAUSE HE HAD NOT BEEN ADVISED OF
HIS RIGHT TO REMAIN SILENT; AND THAT IN ANY EVENT THE PROCEDURES USED
TO DETERMINE THE VOLUNTARINESS OF THESE STATEMENTS WERE
CONSTITUTIONALLY INADEQUATE UNDER THE CRITERIA STATED IN JACKSON V.
DENNO, 378 U.S. 368. 

THE DISTRICT COURT, ALTHOUGH MAKING CLEAR THAT IT WAS NOT
"PRESSENTLY ABLE TO SAY THAT THE CONFESSION WAS INVOLUNTARY,"
NONETHELESS CONCLUDED THAT THE RESPONDENT WAS ENTITLED TO RELIEF
BECAUSE THE STATE TRIAL COURT HAD "EXCLUDED RELEVANT AND PERHAPS
CRUCIAL EVIDENCE ON THE ISSUE OF WHETHER THE CONFESSION WAS VOLUNTARY"
AND THUS "DID NOT RELIABLY DETERMINE WHETHER ATCHLEY'S CONFESSION WAS
VOLUNTARY OR INVOLUNTARY."  300 F.SUPP.  68, 71, 72.  THE EXCLUDED
EVIDENCE THAT THE DISTRICT COURT THOUGHT "RELEVANT AND PERHAPS CRUCIAL"
HAD TO DO WITH WHAT THE POLICE HAD SAID TO TRAVERS BEFORE THE RECORDED
INTERVIEW, WHETHER THE RESPONDENT HAD BEEN TRYING TO OBTAIN A LAWYER,
WHETHER TRAVERS HAD DECEIVED THE RESPONDENT ABOUT HIS MOTIVES AND
FEIGNED SYMPATHY, WHETHER THE RESPONDENT KNEW THAT THE CONVERSATION WAS
BEING RECORDED, AND, FINALLY, WITH THE RESPONDENT'S INTELLECTUAL AND
EDUCATIONAL QUALIFICATIONS.  BECAUSE INQUIRY INTO THESE MATTERS HAD
BEEN RESTRICTED, THE FEDERAL COURT HELD THAT THE WRONG STANDARD OF
VOLUNTARINESS HAD BEEN APPLIED IN THE STATE TRIAL PROCEEDING. 
ACCORDINGLY, THE DISTRICT COURT RULED THAT THE RESPONDENT WAS ENTITLED
TO A NEW HEARING IN THE EVENT THAT THE STATEMENTS SHOULD BE FOUND
INVOLUNTARY, TO A NEW TRIAL.  THE COURT OF APPEALS /4/  AFFIRMED ON THE
OPINION OF THE DISTRICT COURT, JUDGE BARNES DISSENTING, AND WE GRANTED
CERTIORARI.  /5/ 

IN JACKSON, THE COURT HELD THAT TO COMMIT THE DETERMINATION OF THE
VOLUNTARINESS OF A CONFESSION SOLELY TO THE SAME JURY THAT DECIDED
GUILT WAS INCONSISTENT WITH THE CONSTITUTIONAL REQUIREMENT THAT THE
PROCEDURES USED TO DETERMINE VOLUNTARINESS BE RELIABLE.  CONCERN FOR
THE RELIABILITY OF THE PROCEDURES UTILIZED TO DECIDE THE VOLUNTARINESS
ISSUE WAS ALSO REFLECTED IN TOWNSEND V. SAIN, 372 U.S. 293, WHERE IT
WAS HELD THAT A STATE TRIAL COURT'S RESOLUTION OF A DISPUTED ISSUE OF
HISTORICAL FACT COULD NOT BE DISPOSITIVE IN A LATER FEDERAL HABEAS
CORPUS PROCEEDING UNLESS THE PETITIONER HAD HAD A "FULL AND FAIR
HEARING" ON THAT ISSUE IN THE TRIAL COURT.  /6/ 

BUT THOSE DECISIONS DID NOT ESTABLISH THAT AN APPLICANT FOR FEDERAL
HABEAS CORPUS IS ENTITLED TO A NEW HEARING ON THE VOLUNTARINESS ISSUE,
IN EITHER THE FEDERAL OR STATE COURTS, MERELY BECAUSE HE CAN POINT TO
SHORTCOMINGS IN THE PROCEDURES USED TO DECIDE THE ISSUE OF
VOLUNTARINESS IN THE STATE COURTS.  OUR DECISIONS MAKE CLEAR THAT HE
MUST ALSO SHOW THAT HIS VERSION OF EVENTS, IF TRUE, WOULD REQUIRE THE
CONCLUSION THAT HIS CONFESSION WAS INVOLUNTARY.  THUS IN TOWNSEND V.
SAIN, SUPRA, WE DID NOT REACH THE QUESTION WHETHER A HEARING WAS
REQUIRED UNTIL WE HAD DETERMINED, AS A THRESHOLD MATTER, THAT THE
APPLICATION FOR HABEAS CORPUS ALLEGED FACTS WHICH, IF TRUE, WOULD
ESTABLISH THAT THE PETITIONER HAD BEEN DEPRIVED OF CONSTITUTIONAL
RIGHTS BY THE USE OF AN INVOLUNTARY CONFESSION.  372 U.S.,AT 309.  WE
SAID THAT "THE FEDERAL DISTRICT COURT COULD NOT CONCLUDE THAT THE STATE
TRIAL JUDGE ADMITTED THE CONFESSION BECAUSE HE DISBELIEVED THE EVIDENCE
WHICH WOULD SHOW THAT IT WAS INVOLUNTARY."  ID., AT 321.  AND IN
JACKSON V. DENNO, SUPRA, WE DID NOT JUMP FROM THE PREMISE THAT THE
PROCEDURES USED TO DETERMINE VOLUNTARINESS WERE INADEQUATE, TO THE
CONCLUSION THAT THE PETITIONER WAS ENTITLED TO A NEW HEARING.  INSTEAD,
WE POINTED OUT: 

   "THIS IS NOT A CASE WHERE THE FACTS CONCERNING THE

CIRCUMSTANCES SURROUNDING THE CONFESSION ARE UNDISPUTED AND THE

  TASK IS ONLY TO JUDGE THE VOLUNTARINESS OF THE CONFESSION BASED

  UPON THE CLEARLY ESTABLISHED FACTS AND IN ACCORDANCE WITH PROPER

  CONSTITUTIONAL STANDARDS.  HERE THERE ARE SUBSTANTIAL FACTS IN

  DISPUTE.  . . . WHETHER JACKSON IS ENTITLED TO RELIEF DEPENDS
UPON

  HOW THESE FACTS ARE RESOLVED, FOR IF THE STATE IS TO BE BELIEVED

  WE CANNOT SAY THAT JACKSON'S CONFESSION WAS INVOLUNTARY, WHEREAS

  IF JACKSON'S VERSION OF THE FACTS IS ACCEPTED THE CONFESSION WAS

  INVOLUNTARY AND INADMISSIBLE."  378 U.S.,AT 391-392. 

THE REASON FOR THIS APPROACH IS OBVIOUS.  UNLESS THE RESULT OF THE
HABEAS CORPUS PROCEEDING TURNS ON DISPUTED ISSUES OF HISTORICAL FACT, A
REHEARING ON THE ISSUE OF THE INVOLUNTARINESS OF A DEFENDANT'S
INCRIMINATING STATEMENT WOULD BE AN EXERCISE IN FUTILITY, SINCE THE
APPLICANT FOR FEDERAL HABEAS WOULD NOT BE ENTITLED TO RELIEF EVEN IF
HIS ALLEGATIONS OF HISTORICAL FACT SHOULD BE FOUND TO BE TRUE.  YET THE
DISTRICT COURT IN THIS CASE QUITE EVIDENTLY FAILED TO MAKE THE
THRESHOLD DETERMINATION THAT THE RESPONDENT WOULD BE ENTITLED TO RELIEF
IF HIS ALLEGATIONS WERE BELIEVED.  RATHER THE COURT, DISAVOWING ANY
PRESENT ABILITY TO SAY WHETHER THE RESPONDENT'S STATEMENT WAS
INVOLUNTARY, SAID ONLY THAT "THE TRIAL COURT COULD HAVE MORE
COMPETENTLY DETERMINED WHETHER (THE RESPONDENT'S) WILL WAS OVERBORNE"
HAD THE CIRCUMSTANCES SURROUNDING THE STATEMENT BEEN MORE FULLY
EXPLORED.  300 F.SUPP.,AT 72. 

THE RESPONDENT'S TRIAL TOOK PLACE SEVERAL YEARS BEFORE THE DECISIONS
OF THE COURT IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, AND MIRANDA V.
ARIZONA, 384 U.S. 436, AND THOSE DECISIONS HAVE NOT BEEN GIVEN
RETROACTIVE EFFECT.  JOHNSON V. NEW JERSEY, 384 U.S. 719.  THE
ADMISSIBILITY OF THE RESPONDENT'S STATEMENT AS A CONSTITUTIONAL MATTER
WAS GOVERNED, THEREFORE, BY THE CONTEMPORARY CASE LAW ELABORATING THE
DUE PROCESS STANDARD OF VOLUNTARINESS.  THE QUESTION WAS WHETHER THE
WILL OF THE DEFENDANT HAD BEEN OVERBORNE SO THAT THE STATEMENT WAS NOT
HIS FREE AND VOLUNTARY ACT, AND THAT QUESTION WAS TO BE RESOLVED IN
LIGHT OF THE TOTALITY OF THE CIRCUMSTANCES.  SEE, E.G., DAVIS V. NORTH
CAROLINA, 384 U.S. 737; HAYNES V. WASHINGTON, 373 U.S. 503, 513-516;
SPANO V. NEW YORK, 360 U.S. 315, 323; ASHCRAFT V. TENNESSEE, 322 U.S.
143, 147-148. 

THERE IS NO REASON TO INFER THAT THE SUPREME COURT OF CALIFORNIA DID
NOT APPLY THE CORRECT CONSTITUTIONAL CRITERIA IN REVIEWING THE ISSUE,
AND THE COURT QUITE CLEARLY ASSUMED THE TRUTH OF THE RESPONDENT'S
VERSION OF THE HISTORICAL FACTS STILL IN DISPUTE, IN HOLDING THAT HIS
STATEMENT WAS NOT INVOLUNTARY. 

THE RESPONDENT CONTENDED THAT HIS CONFESSION WAS INVOLUNTARY BECAUSE
HE HAD BEEN DENIED A LAWYER, BECAUSE HE HAD NOT BEEN ADVISED OF HIS
RIGHT TO REMAIN SILENT, BECAUSE HE HAD THOUGHT HE WAS GIVING TRAVERS
INFORMATION THAT TRAVERS NEEDED TO OBTAIN THE INSURANCE MONEY, BECAUSE
HE HAD THOUGHT THAT WHAT HE TOLD TRAVERS WOULD BE HELD IN CONFIDENCE,
BECAUSE HE HAD NOT KNOWN THAT HIS CONVERSATION WITH TRAVERS WAS BEING
RECORDED, AND BECAUSE HE WAS LOWER THAN AVERAGE IN INTELLIGENCE AND
EDUCATIONAL ATTAINMENTS.  OF THESE SIX ASSERTEDLY COERCIVE FACTORS,
THREE WENT ONLY TO THE WEIGHT TO BE GIVEN OTHER EVIDENCE OF ACTUAL
COERCION.  LOW INTELLIGENCE, DENIAL OF THE RIGHT TO COUNSEL, AND
FAILURE TO ADVISE OF THE RIGHT TO REMAIN SILENT WERE NOT IN THEMSELVES
COERCIVE.  RATHER THEY WERE RELEVANT ONLY IN ESTABLISHING A SETTING IN
WHICH ACTUAL COERCION MIGHT HAVE BEEN EXERTED TO OVERCOME THE WILL OF
THE SUSPECT.  SEE DARWIN V. CONNECTICUT, 391 U.S. 346; GREENWALD V.
WISCONSIN, 390 U.S. 519; DAVIS V. NORTH CAROLINA, SUPRA.  THE
CIRCUMSTANCE THAT THE CONVERSATION WAS RECORDED WITHOUT THE
RESPONDENT'S KNOWLEDGE DID NOT TEND TO SHOW EITHER ACTUAL COERCION OR A
POTENTIALLY COERCIVE SETTING.  THE FACTUAL ISSUE WHETHER THE RESPONDENT
THOUGHT HIS STATEMENTS TO TRAVERS WOULD BE HELD IN CONFIDENCE WAS
RESOLVED IN THE TRIAL COURT.  TRAVERS TESTIFIED THAT HE ADVISED THE
RESPONDENT THAT WHAT HE SAID WOULD HAVE TO BE REPORTED TO THE INSURANCE
COMPANY AND THAT THE RESPONDENT KNEW IT WOULD BE A MATTER OF RECORD. 
THIS TESTIMONY WAS NOT CONTRADICTED, AND THERE WAS NO REASON FOR THE
CALIFORNIA SUPREME COURT TO DISTURB THE FINDING, IMPLICIT IN THE TRIAL
RECORD, THAT THE RESPONDENT HAD HAD NO REASON TO BELIEVE THAT TRAVERS
WOULD NOT REPEAT WHAT HE HAD BEEN TOLD.  SEE TOWNSEND V. SAIN, 372 U.S.
293, 314.  THE REMAINING CONTENTION WAS THAT THE RESPONDENT'S STATEMENT
WAS IMPROPERLY INDUCED BY THE SUGGESTION THAT TRAVERS NEEDED THE
INFORMATION IN ORDER TO OBTAIN INSURANCE MONEY FOR ATCHLEY'S CHILDREN
AND STEPCHILDREN.  THE CALIFORNIA SUPREME COURT PROPERLY FOUND THAT
"THE RECORDED CONVERSATION DEMONSTRATES THAT TRAVERS REFERRED TO THE
INSURANCE POLICY TO EXPLAIN WHY HE WAS ASKING QUESTIONS AND NOT AS AN
INDUCEMENT FOR ANY PARTICULAR ANSWERS."     IT IS CLEAR THAT THE
CALIFORNIA COURTS GAVE FULL CONSIDERATION TO THE ISSUE OF THE
VOLUNTARINESS OF THE RESPONDENT'S STATEMENT, AND THAT THEY APPLIED
CORRECT STANDARDS OF CONSTITUTIONAL LAW IN UPHOLDING ITS ADMISSION IN
EVIDENCE.  ACCORDINGLY, THE DISTRICT COURT WAS IN ERROR IN REQUIRING A
NEW TRIAL OF CLAIMS THAT WERE LONG AGO FULLY, FAIRLY, AND CORRECTLY
DETERMINED IN THE COURTS OF CALIFORNIA. 

              THE JUDGMENT IS REVERSED. 

/1/  NO CHARGES HAD BEEN FILED AGAINST THE RESPONDENT AT THE TIME OF
THESE CONVERSATIONS.  CF. MASSIAH V. UNITED STATES, 377 U.S. 201. 

/2/  362 U.S. 987. 

/3/  366 U.S. 207. 

/4/  412 F.2D 230. 

/5/  397 U.S. 905. 

/6/  CONGRESS IN 1966 AMENDED 28 U.S.C. 2254 (SEE 1964 ED., SUPP.
V), SO AS SUBSTANTIALLY TO CODIFY MOST OF THE HABEAS CORPUS CRITERIA
SET OUT IN TOWNSEND V. SAIN. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND SUBSTANTIALLY ALL OF
THE OPINION. 

ROBERT R. GRANUCCI, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, ALBERT W. HARRIS, JR., ASSISTANT ATTORNEY GENERAL,
AND WILLIAM D. STEIN, DEPUTY ATTORNEY GENERAL. 

CHARLES A. LEGGE ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

..END :





















KENNERLY V. DISTRICT COURT OF MONTANA, 400 U.S. 423 


       KENNERLY ET AL V. DISTRICT COURT OF THE NINTH JUDICIAL

           DISTRICT OF MONTANA ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

      MONTANA

        NO. 5370.  DECIDED JANUARY 18, 1971 


PETITIONERS UNSUCCESSFULLY MOVED TO DISMISS AN ACTION FOR A 1964 DEBT
BROUGHT AGAINST THEM, ON THE GROUND THAT THE MONTANA COURTS LACKED
JURISDICTION BECAUSE THEY WERE BLACKFEET INDIANS AND THE TRANSACTIONS
TOOK PLACE ON THE INDIAN RESERVATION.  SECTION 7 OF THE ACT OF AUGUST
15, 1953, PROVIDED IN PART THAT A STATE NOT HAVING CIVIL JURISDICTION
OVER INDIANS COULD "ASSUME JURISDICTION AT SUCH TIME AND IN SUCH MANNER
AS THE PEOPLE OF THE STATE SHALL, BY AFFIRMATIVE LEGISLATIVE ACTION,
OBLIGATE AND BIND THE STATE TO ASSUMPTION THEREOF."  MONTANA TOOK NO
AFFIRMATIVE LEGISLATIVE ACTION WITH RESPECT TO THE BLACKFEET
RESERVATION.  IN 1967 THE BLACKFEET TRIBAL COUNCIL ADOPTED AN ACT
PROVIDING FOR CONCURRENT JURISDICTION IN THE TRIBAL COURT AND THE STATE
COURTS OF ANY SUIT WHERE THE DEFENDANT IS A MEMBER OF THE TRIBE.  TITLE
IV OF THE CIVIL RIGHTS ACT OF 1968 REPEALED SEC. 7 OF THE 1953 ACT AND
PROVIDED FOR THE ASSUMPTION OF STATE JURISDICTION "ONLY WHERE THE
ENROLLED INDIANS WITHIN THE AFFECTED AREA OF SUCH INDIAN COUNTRY ACCEPT
SUCH JURISDICTION BY A MAJORITY VOTE OF THE ADULT INDIANS VOTING AT A
SPECIAL ELECTION HELD FOR THAT PURPOSE."  HELD:  THE TRIBAL COUNCIL'S
UNILATERAL ACTION WAS INSUFFICIENT TO VEST JURISDICTION IN THE MONTANA
COURTS UNDER EITHER THE 1953 ACT, WHICH REQUIRED AFFIRMATIVE STATE
LEGISLATIVE ACTION, OR UNDER THE 1968 ACT, WHICH CALLS FOR A MAJORITY
VOTE OF ALL ENROLLED INDIANS. 

CERTIORARI GRANTED; 154 MONT. 488, 466 P.2D 85, VACATED AND
REMANDED. 

PER CURIAM. 

THIS CASE ARISES ON PETITION FOR CERTIORARI FROM A JUDGMENT OF THE
SUPREME COURT OF MONTANA.  THE PETITION FOR CERTIORARI AND THE MOTION
TO PROCEED IN FORMA PAUPERIS ARE GRANTED.  FOR REASONS APPEARING BELOW,
WE VACATE THE JUDGMENT OF THE SUPREME COURT OF MONTANA AND REMAND THE
CASE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

PETITIONERS ARE MEMBERS OF THE BLACKFEET INDIAN TRIBE AND RESIDE ON
THE BLACKFEET INDIAN RESERVATION IN MONTANA.  THE TRIBE IS DULY
ORGANIZED UNDER THE INDIAN REORGANIZATION ACT OF JUNE 18, 1934, 48
STAT. 984, 25 U.S.C. 461 ET SEQ. IN JULY AND AUGUST OF 1964,
PETITIONERS PURCHASED SOME FOOD ON CREDIT FROM A GROCERY STORE LOCATED
WITHIN THE TOWN LIMITS OF BROWNING, A TOWN INCORPORATED UNDER THE LAWS
OF MONTANA BUT LOCATED WITHIN THE EXTERIOR BOUNDARIES OF THE BLACKFEET
RESERVATION. 

A SUIT WAS COMMENCED IN THE MONTANA STATE COURTS AGAINST PETITIONERS
ON THE DEBT ARISING FROM THESE TRANSACTIONS.  PETITIONERS MOVED TO
DISMISS THE SUIT ON THE GROUND THAT THE STATE COURTS LACKED
JURISDICTION BECAUSE THE DEFENDANTS WERE MEMBERS OF THE BLACKFEET TRIBE
AND THE TRANSACTIONS TOOK PLACE ON THE INDIAN RESERVATION.  THE LOWER
STATE COURT OVERRULED THE MOTION AND PETITIONERS, PURSUANT TO MONTANA
RULES OF PROCEDURE, PETITIONED THE SUPREME COURT OF MONTANA FOR A "WRIT
OF SUPERVISORY CONTROL" TO REVIEW THIS LOWER COURT RULING.  THE STATE
SUPREME COURT TOOK JURISDICTION AND AFFIRMED. 

PRIOR TO THE PASSAGE OF TITLE IV OF THE CIVIL RIGHTS ACT OF 1968, 82
STAT. 78, 25 U.S.C. 1321-1326 (1964 ED., SUPP. V), DISCUSSED INFRA,
STATE ASSUMPTION OF CIVIL JURISDICTION-- IN SITUATIONS WHERE CONGRESS
HAD NOT EXPLICITLY EXTENDED JURISDICTION /1/  -- WAS GOVERNED BY SEC. 7
OF THE ACT OF AUGUST 15, 1953, 67 STAT. 590.  SECTION 7 OF THAT STATUTE
PROVIDED: 

   "THE CONSENT OF THE UNITED STATES IS HEREBY GIVEN TO ANY OTHER

  STATE NOT HAVING JURISDICTION WITH RESPECT TO CRIMINAL OFFENSES

  OR CIVIL CAUSES OF ACTION, OR WITH RESPECT TO BOTH, AS PROVIDED

  FOR IN THIS ACT (REFERRING TO SECS. 2 AND 4, SEE N. 1, SUPRA), TO

  ASSUME JURISDICTION AT SUCH TIME AND IN SUCH MANNER AS THE PEOPLE

  OF THE STATE SHALL, BY AFFIRMATIVE LEGISLATIVE ACTION, OBLIGATE

  AND BIND THE STATE TO ASSUMPTION THEREOF." 

PURSUANT TO THIS STATUTE, THE MONTANA LEGISLATURE ENACTED CHAPTER 81,
LAWS OF 1963 (SECS. 83-801, 83-806, MONTANA REV. CODES ANN. (1966)),
EXTENDING CRIMINAL, BUT NOT CIVIL, JURISDICTION OVER INDIANS OF THE
FLATHEAD INDIAN RESERVATION.  BUT MONTANA NEVER TOOK "AFFIRMATIVE
LEGISLATIVE ACTION"-- CONCERNING EITHER CIVIL OR CRIMINAL JURISDICTION-
WITH RESPECT TO THE BLACKFEET RESERVATION. 

HOWEVER, ON NOVEMBER 20, 1967, THE BLACKFEET TRIBAL COUNCIL ADOPTED
CHAPTER 2, CIVIL ACTION, SEC. 1, AS PART OF THE BLACKFEET TRIBAL LAW
AND ORDER CODE, WHICH PROVIDES, IN RELEVANT PART: 

"THE TRIBAL COURT AND THE STATE SHALL HAVE CONCURRENT AND NOT

  EXCLUSIVE JURISDICTION OF ALL SUITS WHEREIN THE DEFENDANT IS A

  MEMBER OF THE TRIBE WHICH IS BROUGHT BEFORE THE COURTS.  . . . "

THE MONTANA SUPREME COURT RELIED ON THIS PRE-1968 TRIBAL COUNCIL ACTION
AS AN ALTERNATIVE BASIS FOR THE ASSERTION OF STATE CIVIL JURISDICTION
OVER THE INSTANT LITIGATION.  /2/  IN WILLIAMS V. LEE, 358 U.S. 217
(1959), A NON-INDIAN BROUGHT SUIT AGAINST A NAVAJO INDIAN FOR A DEBT
ARISING OUT OF A TRANSACTION WHICH TOOK PLACE ON THE NAVAJO
RESERVATION.  THE ARIZONA STATE SUPREME COURT UPHELD THE EXERCISE OF
JURISDICTION AND WE REVERSED.  IN THE INSTANT CASE, THE MONTANA SUPREME
COURT ATTEMPTED TO RECONCILE ITS RESULT WITH WILLIAMS ON THE THEORY
THAT THE TRANSFER OF JURISDICTION BY UNILATERAL TRIBAL ACTION IS
CONSISTENT WITH THE EXERCISE OF TRIBAL POWERS OF SELF-GOVERNMENT.  154
MONT. 486, 466 P.2D 85.  /3/ 

THE COURT IN WILLIAMS, IN THE PROCESS OF DISCUSSING THE GENERAL
QUESTION OF STATE ACTION IMPINGING ON THE AFFAIRS OF RESERVATION
INDIANS, NOTED THAT "(ESSENTIALLY, ABSENT GOVERNING ACTS OF CONGRESS,
THE QUESTION HAS ALWAYS BEEN WHETHER THE STATE ACTION INFRINGED ON THE
RIGHT OF RESERVATION INDIANS TO MAKE THEIR OWN LAWS AND BE RULED BY
THEM."  358 U.S.,AT 220.  WITH REGARD TO THE PARTICULAR QUESTION OF THE
EXTENSION OF STATE JURISDICTION OVER CIVIL CAUSES OF ACTION BY OR
AGAINST INDIANS ARISING IN INDIAN COUNTRY, THERE WAS, AT THE TIME OF
THE TRIBAL COUNCIL RESOLUTION, A "GOVERNING ACT OF CONGRESS," I.E., THE
ACT OF 1953.  SECTION 7 OF THAT STATUTE CONDITIONED THE ASSUMPTION OF
STATE JURISDICTION ON "AFFIRMATIVE LEGISLATIVE ACTION" BY THE STATE;
THE ACT MADE NO PROVISION WHATSOEVER FOR TRIBAL CONSENT, EITHER AS A
NECESSARY OR SUFFICIENT CONDITION TO THE ASSUMPTION OF STATE
JURISDICTION.  NOR WAS THE REQUIREMENT OF AFFIRMATIVE LEGISLATION
ACTION AN IDLE CHOICE OF WORDS; THE LEGISLATIVE HISTORY OF THE 1953
STATUS SHOWS THAT THE REQUIREMENT WAS INTENDED TO ASSURE THAT STATE
JURISDICTION WOULD NOT BE EXTENDED UNTIL THE JURISDICTIONS TO BE
RESPONSIBLE FOR THE PORTION OF INDIAN COUNTRY CONCERNED MANIFESTED BY
POLITICAL ACTION THEIR WILLINGNESS AND ABILITY TO DISCHARGE THEIR NEW
RESPONSIBILITIES.  SEE H. R. REP. NO. 848, 83D CONG., 1ST SESS., 6, 7
(1953); WILLIAMS, SUPRA, AT 220-221.  OUR CONCLUSION AS TO THE INTENDED
GOVERNING FORCE OF SEC. 7 OF THE 1953 ACT IS REINFORCED BY THE
COMPREHENSIVE AND DETAILED CONGRESSIONAL SCRUITINY MANIFESTED IN THOSE
INSTANCES WHERE CONGRESS HAS UNDERTAKEN TO EXTEND THE CIVIL OR CRIMINAL
JURISDICTIONS OF CERTAIN STATES TO INDIAN COUNTRY.  SEE N. 1, SUPRA. 

IN WILLIAMS, THE COURT WENT ON TO NOTE THE ABSENCE OF AFFIRMATIVE
CONGRESSIONAL ACTION, OR AFFIRMATIVE LEGISLATIVE ACTION BY THE PEOPLE
OF ARIZONA WITHIN THE MEANING OF THE 1953 ACT.  358 U.S.,AT 222-223. 
HERE IT IS CONCEDED THAT MONTANA TOOK NO AFFIRMATIVE LEGISLATIVE ACTION
WITH RESPECT TO THE BLACKFEET RESERVATION.  THE UNILATERAL ACTION OF
THE TRIBAL COUNCIL WAS INSUFFICIENT TO VEST MONTANA WITH JURISDICTION
OVER INDIAN COUNTRY UNDER THE 1953 ACT. 

THE REMAINING QUESTION IS WHETHER THE PRE-1968 MANIFESTATION OF
TRIBAL CONSENT BY TRIBAL COUNCIL ACTION CAN OPERATE TO VEST MONTANA
WITH JURISDICTION UNDER THE PROVISION OF THE CIVIL RIGHTS ACT OF 1968. 
TITLE IV OF THE 1968 STATUTE REPEALED SEC. 7 OF THE 1953 ACT /4/  AND
SUBSTUTITED A NEW REGULATORY SCHEME FOR THE EXTENSION OF STATE CIVIL
AND CRIMINAL JURISDICTION TO LITIGATION INVOLVING INDIANS ARISING IN
INDIAN COUNTRY.  SEE 25 U.S.C. 1321-1326 (1964 ED., SUPP. V).  SECTION
402(A) OF THE ACT, 25 U.S.C. 1322(A) (1964 ED., SUPP. V), DEALING WITH
CIVIL JURISDICTION, PROVIDES: 

     "THE CONSENT OF THE UNITED STATES IS HEREBY GIVEN TO ANY STATE

  NOT HAVING JURISDICTION OVER CIVIL CAUSES OF ACTION BETWEEN

  INDIANS OR TO WHICH INDIANS ARE PARTIES WHICH ARISE IN THE AREAS

  OF INDIAN COUNTRY SITUATED WITHIN SUCH STATE TO ASSUME, WITH THE

  CONSENT OF THE TRIBE OCCUPYING THE PARTICULAR INDIAN COUNTRY OR

  PART THEREOF WHICH WOULD BE AFFECTED BY SUCH ASSUMPTION, SUCH

  MEASURE OF JURISDICTION OVER ANY OR ALL SUCH CIVIL CAUSES OF

  ACTION ARISING WITHIN SUCH INDIAN COUNTRY OR ANY PART THEREOF AS

  MAY BE DETERMINED BY SUCH STATE TO THE SAME EXTENT THAT SUCH

  STATE HAS JURISDICTION OVER OTHER CIVIL CAUSES OF ACTION, AND

  THOSE CIVIL LAWS OF SUCH STATE THAT ARE OF GENERAL APPLICATION TO

  PRIVATE PERSONS OR PRIVATE PROPERTY SHALL HAVE THE SAME FORCE AND

 EFFECT WITHIN SUCH INDIAN COUNTRY OR PART THEREOF AS THEY HAVE

  ELSEWHERE WITHIN THAT STATE." 

PROVIDES: 

    "STATE JURISDICTION ACQUIRED PURSUANT TO THIS SUBCHAPTER WITH

  RESPECT TO CRIMINAL OFFENSES OR CIVIL CAUSES OF ACTION, OR WITH

  RESPECT TO BOTH, SHALL BE APPLICABLE IN INDIAN COUNTRY ONLY WHERE

  THE ENROLLED INDIANS WITHIN THE AFFECTED AREA OF SUCH INDIAN

  COUNTRY ACCEPT SUCH JURISDICTION BY A MAJORITY VOTE OF THE ADULT

  INDIANS VOTING AT A SPECIAL ELECTION HELD FOR THAT PURPOSE.  THE

  SECRETARY OF THE INTERIOR SHALL CALL SUCH SPECIAL ELECTION UNDER

SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, WHEN REQUESTED TO

  DO SO BY THE TRIBAL COUNCIL OR OTHER GOVERNING BODY, OR BY 20 PER

  CENTUM OF SUCH ENROLLED ADULTS." 

WE THINK THE MEANING OF THESE PROVISIONS IS CLEAR:  THE TRIBAL CONSENT
THAT IS PREREQUISITE TO THE ASSUMPTION OF STATE JURISDICTION UNDER THE
PROVISIONS OF TITLE IV OF THE ACT MUST BE MANIFESTED BY MAJORITY VOTE
OF THE ENROLLED INDIANS WITHIN THE AFFECTED AREA OF INDIAN COUNTRY. 
/5/  LEGISLATIVE ACTION BY THE TRIBAL COUNCIL DOES NOT COMPORT WITH THE
EXPLICIT REQUIREMENTS OF THE ACT. 

FINALLY, WITH REGARD TO THE 1968 ENACTMENT, THIS CASE PRESENTS NO
QUESTION CONCERNING THE POWER OF THE INDIAN TRIBES TO PLACE TIME,
GEOGRAPHICAL, OR OTHER CONDITIONS ON THE "TRIBAL CONSENT" TO STATE
EXERCISE OF JURISDICTION.  RATHER, WE ARE PRESENTED SOLELY WITH A
QUESTION OF THE PROCEDURES BY WHICH "TRIBAL CONSENT" MUST BE MANIFESTED
UNDER THE NEW ACT.  THUS THE SUGGESTION MADE IN DISSENT THAT, UNDER
TODAY'S DISPOSITION, "(THE RESERVATION INDIANS MUST NOW CHOOSE BETWEEN
EXCLUSIVE TRIBAL COURT JURISDICTION ON THE ONE HAND AND PERMANENT
IRREVOCABLE STATE JURISDICTION ON THE OTHER," IS INCORRECT.  /6/ 

THE JUDGMENT OF THE SUPREME COURT OF MONTANA IS VACATED AND THE CASE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  FOR EXAMPLE, SEC. 4 OF THE ACT OF AUGUST 15, 1953, 67 STAT.
589, 28 U.S.C. 1360(A), EXTENDED JURISDICTION OVER CIVIL CAUSES OF
ACTION ARISING IN INDIAN COUNTRY TO WHICH INDIANS ARE PARTIES TO FIVE
STATES.  THE STATUTE IS ILLUSTRATIVE OF THE DETAILED REGULATORY
SCRUTINY WHICH CONGRESS HAS TRADITIONALLY BROUGHT TO BEAR ON THE
EXTENSION OF STATE JURISDICTION, WHETHER CIVIL OR CRIMINAL, TO ACTIONS
TO WHICH INDIANS ARE PARTIES ARISING IN INDIAN COUNTRY.  SEE ALSO SEC.
2 OF THE ACT, 67 STAT. 588, 18 U.S.C. SEC. 1162, EXTENDING CRIMINAL
JURISDICTION TO THE SAME STATES OVER OFFENSES INVOLVING INDIANS
COMMITTED IN INDIAN COUNTRY.  MONTANA WAS NOT ONE OF THE FIVE STATES
ACCORDED CIVIL AND CRIMINAL JURISDICTION UNDER THESE SECTIONS OF THE
STATUTE. 

/2/  AS DISCUSSED, INFRA, SEC. 403(B) OF THE CIVIL RIGHTS ACT OF
1968, 82 STAT. 79, 25 U.S.C. 1323(B) (1964 ED., SUPP. V), REPEALED SEC.
7 OF THE ACT OF 1953.  BUT SEC. 403(B) PROVIDES:  "SUCH REPEAL SHALL
NOT AFFECT ANY CESSION OF JURISDICTION MADE PURSUANT TO (SEC. 7) PRIOR
TO ITS REPEAL."  FURTHER, SECS. 402 AND 406 OF THE 1968 ACT, WHICH
GOVERN THE ASSUMPTION OF CIVIL JURISDICTION BY STATES, APPEAR TO COVER
ONLY STATES NOT PRESENTLY HAVING SUCH JURISDICTION. 

THE INSTANT LITIGATION COMMENCED AFTER THE PASSAGE OF THE 1968 ACT. 
HOWEVER, SINCE THE TRIBAL COUNCIL ACTION PRECEDED THE 1968 ACT-- AND
UNDER THE STATE COURT'S REASONING VESTED THE STATE WITH JURISDICTION AT
THAT TIME-- WE MUST CONSIDER THE VALIDITY OF THE STATE'S ASSERTION OF
JURISDICTION UNDER THE 1953 ACT AS WELL AS THE 1968 ACT. 

/3/  THE MONTANA SUPREME COURT ALSO SOUGHT TO DISTINGUISH WILLIAMS
OUTRIGHT ON THE GROUND THAT THE PLAINTIFF IN THAT CASE HAD, AT ONE
POINT, SECURED A WRIT OF ATTACHMENT ON INDIAN-OWNED LIVESTOCK ON THE
NAVAJO RESERVATION, BRINGING INTO PLAY SPECIAL FEDERAL PROTECTIVE
POLICIES WITH REGARD TO INDIAN LIVESTOCK.  HOWEVER, THE ARIZONA SUPREME
COURT JUDGMENT UNDER REVIEW IN WILLIAMS HAD SET ASIDE THE WRIT OF
ATTACHMENT ON THE VERY BASIS RELIED UPON BY THE MONTANA SUPREME COURT
IN ITS OPINION IN THIS CASE AS A DISTINGUISHING GROUND.  WILLIAMS V.
LEE, 83 ARIZ. 241, 247-248, 319 P.2D 998, 1002-1003 (1958).  RESPONDENT
IN WILLIAMS DID NOT SEEK REVIEW OF THAT PORTION OF THE JUDGMENT, AND,
OF COURSE, THE COURT'S OPINION IN WILLIAMS MAKES NO REFERENCE TO THE
ATTACHMENT. 

/4/  BUT SEE N. 2, SUPRA. 

/5/  THE PLAIN MEANING OF THE STATUTE IS REINFORCED BY THE
LEGISLATIVE HISTORY.  TITLE IV OF THE 1968 ACT WAS OFFERED AND
PRINCIPALLY SPONSORED BY SENATOR ERVIN OF NORTH CAROLINA AS PART OF AN
AMENDMENT BY WAY OF A SUBSTITUTE TO H.R. 2516, WHICH EVENTUALLY BECAME
PART OF THE CIVIL RIGHTS ACT OF 1968.  SEE 114 CONG.REC.  393-395.  IN
DISCUSSING TITLE IV, SENATOR ERVIN STATED, ID., AT 394: 

"THIS TITLE REPEALS SECTION 7 (OF THE 1953 ACT) AND AUTHORIZES
STATES TO ASSERT CIVIL AND CRIMINAL JURISDICTION IN INDIAN COUNTRY ONLY
AFTER ACQUIRING THE CONSENT OF THE TRIBES IN THE STATES BY REFERENDUM
OF ALL RESERVATED INDIANS." 

SEE ALSO S. REP. NO. 721, 90TH CONG., 1ST SESS., 32 (1967)
(ADDITIONAL VIEWS OF SEN. ERVIN).  SENATOR ERVIN'S PROPOSALS WERE
EVENTUALLY ADOPTED AS AN AMENDMENT TO THE DIRKSEN AMENDMENT TO THE 1968
ACT.  SEE 114 CONG. REC. 5836-5838. 

/6/  THE DISSENT'S REBUTTING FOOTNOTE INFERS FROM THE EXPRESS
ALLOWANCE FOR SELECTIVE STATE EXERCISE OF JURISDICTION A CONGRESSIONAL
INTENT TO EXCLUDE SELECTIVE TRIBAL CONSENT TO STATE EXERCISE OF
JURISDICTION.  THAT INFERENCE IS SO OBVIOUSLY NOT COMPELLED BY EITHER
THE LANGUAGE OR STRUCTURE OF 25 U.S.C. 1322(A) (1964 ED., SUPP. V), THE
FULL TEXT OF WHICH IS QUOTED ABOVE, THAT WE THINK NO FURTHER RESPONSE
IS NEEDED.  WE REITERATE, HOWEVER, THAT WITH RESPECT TO THE 1968
ENACTMENT, TODAY'S DECISION IS CONCERNED SOLELY WITH PROCEDURAL
MECHANISMS BY WHICH TRIBAL CONSENT MUST BE REGISTERED. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

THIS CASE DOES NOT INVOLVE STATE ACTION INFRINGING "THE RIGHT OF
RESERVATION INDIANS TO MAKE THEIR OWN LAWS AND BE RULED BY THEM." 
WILLIAMS V. LEE, 358 U.S. 217, 220.  TO THE CONTRARY, THE EXERCISE OF
STATE JURISDICTION COMPLAINED OF HERE WAS EXPRESSLY AUTHORIZED BY
TRIBAL LAW.  BLACKFEET TRIBAL LAW AND ORDER CODE, C. 2, SEC. 1.  THE
COURT HOLDS THAT THIS TRIBAL LAW IS INVALID BECAUSE CONGRESS HAS
RESTRICTED THE RIGHT OF INDIAN SELF-GOVERNMENT BY SPECIFYING THE
EXCLUSIVE PROCEDURE BY WHICH RESERVATION INDIANS MAY CONFER ON A STATE
COURT JURISDICTION OVER THEM.     I THINK THAT CONGRESS DID NOT INTEND
IN ENACTING EITHER SEC. 7 OF THE ACT OF AUGUST 15, 1953, 67 STAT. 590,
OR THE SUCCESSOR TO THAT SECTION, TITLE IV OF THE CIVIL RIGHTS ACT OF
1968, SECS. 402(A), 406, 25 U.S.C. 1322, 1326 (1964 ED., SUPP. V), TO
INVALIDATE TRIBAL LEGISLATION THAT AUTHORIZES STATE COURTS TO TAKE
JURISDICTION OVER ACTIONS BROUGHT AGAINST A MEMBER OF THE TRIBE.  IT IS
PLAIN TO ME THAT THESE STATUTES REFLECT ONLY A CONGRESSIONAL
DETERMINATION THAT THERE IS A NEED FOR PROTECTIVE LIMITATIONS WHEN
STATE JURISDICTION OVER RESERVATION INDIANS IS TO BE PERMANENTLY
AUTHORIZED.  BUT I CAN FIND IN THESE STATUTES NO SUGGESTION THAT
CONGRESS DETERMINED THAT SUCH LIMITATIONS ARE NECESSARY WHEN
RESERVATION INDIANS PASS A LAW THAT AUTHORIZES STATE COURT JURISDICTION
OVER THEM.  NOR CAN I SEE ANY REASON TO SUPPOSE THAT TO INVALIDATE SUCH
A LAW WILL EFFECTUATE THE PURPOSE OF CONGRESS.  WHEN STATE COURT
JURISDICTION OVER RESERVATION INDIANS RESTS ON TRIBAL LEGISLATION, AS
DISTINCT FROM A PERMANENT FEDERAL AUTHORIZATION, THE INTERESTS OF THE
RESERVATION INDIANS ARE FULLY PROTECTED BY THEIR ABILITY TO REPEAL THE
GRANT OF JURISDICTION TO THE STATE COURTS AND THEREBY TO RETURN
EXCLUSIVE JURISDICTION TO THEIR OWN COURTS. 

THE DECISION REACHED BY THE COURT TODAY SUBSTANTIALLY FRUSTRATES
PRODUCTIVE SELF-GOVERNMENT BY RESERVATION INDIANS BECAUSE IT
UNJUSTIFIABLY REDUCES THE OPTIONS AVAILABLE TO THEM WITH RESPECT TO
STATE COURT JURISDICTION.  THE RESERVATION INDIANS MUST NOW CHOOSE
BETWEEN EXCLUSIVE TRIBAL COURT JURISDICTION ON THE ONE HAND AND
PERMANENT, IRREVOCABLE STATE JURISDICTION ON THE OTHER.  /1/  THIS
MEANS THAT BECAUSE OF A TEMPORARY INABILITY TO MAINTAIN A TRIBAL COURT,
RESERVATION INDIANS MAY FIND IT NECESSARY TO CEDE JURISDICTION TO A
STATE FOR ALL TIME.  IT ALSO MEANS THAT RESERVATION INDIANS DO NOT HAVE
THE OPTION OF A TRIAL PERIOD OF STATE JURISDICTION UNDER THE AUTHORITY
OF THEIR OWN LAWS.  I CANNOT BELIEVE THAT CONGRESS INTENDED TO WITHDRAW
THESE OPTIONS. 

FINALLY, IT SEEMS TO ME QUITE WRONG TO INVALIDATE AN ENACTMENT OF
THE BLACKFEET TRIBAL COUNCIL, WHICH IS NOT A PARTY TO THIS LITIGATION,
WITHOUT FIRST GIVING THE COUNCIL AN OPPORTUNITY AT LEAST TO SUBMIT A
BRIEF IN SUPPORT OF ITS LEGISLATION.  BEFORE DECIDING THIS CASE THE
COURT REQUESTED THE SOLICITOR GENERAL TO SUBMIT THE VIEWS OF THE UNITED
STATES, WHOSE LAW THE COURT NOW INTERPRETS AS CONTROLLING.  I SHOULD
HAVE THOUGHT THE MOST BASIC PRINCIPLES OF FAIR PLAY WOULD DICTATE A
LIKE REQUEST TO THE BLACKFEET TRIBAL COUNCIL BEFORE THE COURT STRIKES
DOWN ITS LAW AS INVALID. 

/1/  THE COURT SUGGESTS THAT THIS DILEMMA IS IMAGINARY BECAUSE THE
TRIBE MAY ATTACH CONDITIONS TO ITS CONSENT.  I FAIL TO UNDERSTAND HOW
THE PROBLEM CAN BE AVOIDED IN THIS WAY.  WHEN STATE JURISDICTION IS
ASSUMED PURSUANT TO 25 U.S.C. 1322(A) (1964 ED., SUPP. V), IT IS THE
STATE AND NOT THE TRIBE THAT DETERMINES THE SCOPE OF THE JURISDICTION
TO WHICH THE TRIBE MAY CONSENT.  THAT SECTION AUTHORIZES A STATE TO
ASSUME "SUCH MEASURE OF JURISDICTION OVER ANY OR ALL SUCH CIVIL CAUSES
OF ACTION ARISING WITHIN SUCH INDIAN COUNTRY OR ANY PART THEREOF AS MAY
BE DETERMINED BY SUCH STATE.  . . . "
..END :

















PERKINS V. MATTHEWS, 400 U.S. 379 


       PERKINS ET AL. V. MATTHEWS, MAYOR OF THE CITY OF CANTON, ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF MISSISSIPPI

        NO. 46.  ARGUED OCTOBER 20, 1970-- DECIDED JANUARY 14,
1971 


APPELLANTS, VOTERS AND CANDIDATES FOR CITY OFFICES, SOUGHT TO ENJOIN
THE 1969 ELECTION IN CANTON, MISSISSIPPI, ALLEGING THAT THE 1969
REQUIREMENTS DIFFERED FROM THOSE IN EFFECT ON NOVEMBER 1, 1964, AND AT
THE LAST CITY ELECTION IN 1965, AND THAT THE CITY SOUGHT TO ENFORCE THE
CHANGED REQUIREMENTS WITHOUT FOLLOWING THE APPROVAL PROCEDURE SET FORTH
IN SEC. 5 OF THE VOTING RIGHTS ACT OF 1965.  SECTION 5 PRECLUDES A
STATE OR POLITICAL SUBDIVISION COVERED BY THE ACT FROM ADMINISTERING
"ANY VOTING QUALIFICATION OR PREREQUISITE TO VOTING, OR STANDARD,
PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING DIFFERENT FROM THAT IN
FORCE OR EFFECT ON NOVEMBER 1, 1964," WITHOUT FIRST SUBMITTED THE
CHANGE TO THE U.S. ATTORNEY GENERAL OR SECURING A DECLARATORY JUDGMENT
FROM THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THAT THE CHANGE
DOES NOT HAVE A RACIALLY DISCRIMINATORY PURPOSE OR EFFECT.  CANTON,
WHICH IS COVERED BY THE ACT, SOUGHT TO ENFORCE CHANGES (1) IN LOCATION
OF POLLING PLACES, (2) IN MUNICIPAL BOUNDARIES THROUGH ANNEXATIONS OF
ADJUACENT AREAS, THUS INCREASING THE NUMBER OF ELIGIBLE VOTERS, AND (3)
FROM WARD TO AT-LARGE ELECTION OF ALDERMEN.  THOUGH AT-LARGE ELECTION
OF ALDERMEN WAS CALLED FOR BY A 1962 MISSISSIPPI STATUTE, THE 1965
CANTON ELECTION WAS BY WARDS.  A SINGLE DISTRICT JUDGE, RELYING ON
ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544, TEMPORARILY RESTRAINED
THE ELECTION, BUT A THREE-JUDGE COURT, AFTER EXAMINING THE CHALLENGED
CHANGES TO DETERMINE WHETHER THEY HAD "A DISCRIMINATORY PURPOSE OF
EFFECT," DISSOLVED THE INJUNCTION AND DISMISSED THE COMPLAINT.  HELD: 

1.  THE THREE-JUDGE COURT SHOULD HAVE CONSIDERED ONLY THE ISSUE OF
"WHETHER A PARTICULAR STATE ENACTMENT IS SUBJECT TO THE PROVISIONS OF
THE VOTING RIGHTS ACT, AND THEREFORE MUST BE SUBMITTED FOR APPROVAL
BEFORE ENFORCEMENT."  ALLEN, SUPRA, AT 559.  PP. 383-387. 

2.  EACH OF THE CHALLENGED CHANGES FALLS WITHIN SEC. 5 AS A
"STANDARD, PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING DIFFERENT FROM
THAT IN FORCE OR EFFECT ON NOVEMBER 1, 1964," AND REQUIRES PRIOR
SUBMISSION.  PP. 387-395. 

(A) CHANGED LOCATIONS OF POLLING PLACES COME WITHIN SEC. 5 SINCE
SUCH CHANGES MAY AFFECT ONE'S ABILITY TO VOTE AND MAY HAVE A RACIALLY
DISCRIMINATORY PURPOSE OF EFFECT.  PP. 387-388. 

(B) CHANGES IN BOUNDARY LINES THROUGH ANNEXATIONS, BY DETERMINING
WHO MAY VOTE IN CITY ELECTIONS THROUGH INCLUSION OF CERTAIN VOTERS AND
BY DILUTING THE WEIGHT OF THE VOTES OF THOSE WHO HAD THE FRANCHISE
PRIOR TO ANNEXATION, IN VIEW OF THE GREAT POTENTIAL FOR RACIAL
DISCRIMINATION IN VOTING, CLEARLY COME WITHIN THE SCOPE OF SEC. 5.  PP.
388-394. 

(C) THE CHANGE FROM WARD TO AT-LARGE ELECTION OF ALDERMEN COMES
WITHIN THE PURVIEW OF SEC. 5 SINCE THE PROCEDURE IN FACT "IN FORCE OR
EFFECT" ON NOVEMBER 1, 1964, WAS THE ELECTION OF ALDERMEN BY WARDS. 
PP. 394-395. 

3.  THE APPROPRIATE REMEDY SHOULD BE DETERMINED BY THE DISTRICT
COURT AFTER HEARING THE VIEWS OF THE PARTIES.  PP. 395-397. 

301 F.SUPP.  565, REVERSED AND REMANDED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT IN WHICH DOUGLAS,
STEWART, WHITE AND MARSHALL, JJ., JOINED.  BLACKMUN, J., FILED AN
OPINION CONCURRING IN THE JUDGMENT, IN WHICH BURGER, C. J., JOINED,
POST, P. 397.  HARLAN, J., FILED A CONCURRING AND DISSENTING OPINION,
POST, P. 397.  BLACK, J., FILED A DISSENTING OPINION, POST, P. 401. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

1973C (1964 ED., SUPP. V), /1/  PROVIDES THAT WHENEVER A STATE OR
POLITICAL SUBDIVISION COVERED BY THE ACT /2/  SHALL ENACT OR SEEK TO
ADMINISTER "ANY VOTING QUALIFICATION OF PREREQUISITE TO VOTING, OR
STANDARD, PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING DIFFERENT FROM
THAT IN FORCE OR EFFECT ON NOVEMBER 1, 1964 . . .  NO PERSON SHALL BE
DENIED THE RIGHT TO VOTE FOR FAILURE TO COMPLY WITH SUCH QUALIFICATION,
PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE" IF THE STATE OR
SUBDIVISION HAS NOT FIRST OBTAINED A DECLARATORY JUDGMENT IN THE UNITED
STATED DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THAT SUCH
QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE "DOES NOT
HAVE THE PURPOSE AND WILL NOT HAVE THE EFFECT OF DENYING OR ABRIDGING
THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR," OR UNLESS THE CHIEF
LEGAL OFFICER OR OTHER APPROPRIATE OFFICIAL OF SUCH STATE OR
SUBDIVISION HAS SUBMITTED THE QUALIFICATION, PREREQUISITE, STANDARD,
PRACTICE, OR PROCEDURE TO THE ATTORNEY GENERAL OF THE UNITED STATES
"AND THE ATTORNEY GENERAL HAS NOT INTERPOSED AN OBJECTION WITHIN SIXTY
DAYS AFTER SUCH SUBMISSION."  THE QUESTION IN THIS CASE IS WHETHER THE
CITY OF CANTON, MISSISSIPPI, WAS PRECLUDED BY SEC. 5 FROM ENFORCING AT
THE 1969 ELECTIONS FOR MAYOR AND ALDERMEN CERTAIN CHANGES WITH RESPECT
TO VOTING NOT FIRST SUBMITTED TO THE ATTORNEY GENERAL OR TO THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. 

APPELLANTS, VOTERS AND CANDIDATES FOR MAYOR OR ALDERMAN, SOUGHT TO
ENJOIN THE 1969 ELECTIONS IN THIS ACTION BROUGHT IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.  /3/  THEY
ALLEGED THAT THE REQUIREMENTS AT THE 1969 ELECTIONS DIFFERED FROM THOSE
IN EFFECT ON NOVEMBER 1, 1964, AND AT THE LAST MAYORAL AND ALDERMANIC
ELECTIONS IN 1965 BECAUSE OF (1) CHANGES IN LOCATIONS OF THE POLLING
PLACES, (2) CHANGES IN THE MUNICIPAL BOUNDARIES THROUGH ANNEXATIONS OF
ADJACENT AREAS WHICH ENLARGED THE NUMBER OF ELIGIBLE VOTERS, /4/  AND
(3) A CHANGE FROM WARD TO AT-LARGE ELECTION OF ALDERMEN.  THE CITY OF
CANTON, THEY ALLEGED, SOUGHT TO ENFORCE THESE CHANGES WITHOUT FIRST
SUBMITTING THEM TO THE ATTORNEY GENERAL OR OBTAINING A DECLARATORY
JUDGMENT UNDER SEC. 5.  PENDING THE CONVENING OF THE COURT OF THREE
JUDGES REQUIRED BY SEC. 5, A SINGLE JUDGE TEMPORARILY RESTRAINED THE
LEECTIONS, WHICH WERE ORIGINALLY SCHEDULED FOR THE SPRING OF 1969.  THE
THREE-JUDGE COURT, HOWEVER, AFTER HEARING, DISSOLVED THE TEMPORARY
INJUNCTION AND DISMISSED THE COMPLAINT.  301 F.SUPP.  565 (1969).  THE
ELECTIONS WERE THEN HELD IN OCTOBER 1969 WITH THE CHALLENGED CHARGES IN
EFFECT.  /5/  WE NOTED PROBABLE JURISDICTION.  397 U.S. 903 (1970).  WE
REVERSE. 

        I 

THE THREE-JUDGE COURT MISCONCEIVED THE PERMISSIBLE SCOPE OF ITS
INQUIRY INTO APPELLANTS' ALLEGATIONS.  OUR DECISION IN ALLEN V. STATE
BOARD OF ELECTIONS, 393 U.S. 544 (1969), HANDED DOWN TWO MONTHS BEFORE
THIS ACTION WAS INSTITUTED, SETTLED THAT QUESTION.  THE INQUIRY SHOULD
HAVE BEEN LIMITED TO THE DETERMINATION WHETHER "A STATE REQUIREMENT IS
COVERED BY SEC. 5, BUT HAS NOT BEEN SUBJECTED TO THE REQUIRED FEDERAL
SCRUTINY."  ID., AT 561.  ALLEN HELD EXPLICITLY "(THE ONLY ISSUE IS
WHETHER A PARTICULAR STATE ENACTMENT IS SUBJECT TO THE PROVISIONS OF
THE VOTING RIGHTS ACT, AND THEREFORE MUST BE SUBMITTED FOR APPROVAL
BEFORE ENFORCEMENT."  ID., AT 558-559.  FOR EMPHASIS, WE ADDED: 

"IT IS IMPORTANT TO DISTINGUISH THE INSTANT CASES FROM THOSE

  BROUGHT BY A STATE SEEKING A DECLARATORY JUDGMENT THAT ITS NEW

  VOTING LAWS DO NOT HAVE A DISCRIMINATORY PURPOSE OR EFFECT . . .

  . IN THE LATTER TYPE OF CASES THE SUBSTANTIVE QUESTIONS NECESSARY

  FOR APPROVAL (I.E., DISCRIMINATORY PURPOSE OR EFFECT) ARE

  LITIGATED, WHILE IN THE CASES HERE DECIDED THE ONLY QUESTION IS

  WHETHER THE NEW LEGISLATION MUST BE SUBMITTED FOR APPROVAL." 

  ID., AT 555-556, N. 19. 

THE SINGLE JUDGE WHO FIRST ACTED IN THIS CASE BEFORE THE THREE-JUDGE
COURT WAS CONVENED RECOGNIZED THAT ALLEN SO LIMITED THE INQUIRY.  IN
HIS UNREPORTED ORAL OPINION GRANTING TEMPORARY RELIEF, HE CORRECTLY
STATED: 

"THE ONLY QUESTIONS TO BE DECIDED BY . . . THE THREE JUDGE COURT TO
BE DESIGNATED, (ARE) WHETHER OR NOT THE STATE OF MISSISSIPPI OR ANY OF
ITS POLITICAL SUBDIVISIONS HAVE ACTED IN SUCH A WAY AS TO CAUSE OR
CONSTITUTE A VOTING QUALIFICATION OR PREREQUISITE TO VOTING OR
STANDARD, PRACTICE OR PROCEDURE WITH RESPECT TO VOTING WITHIN THE
MEANING OF SECTION 5 OF THE VOTING RIGHTS ACT OF 1965, WHICH CHANGED
THE SITUATION THAT EXISTED AS OF NOVEMBER 1, 1964, AND WHETHER OR NOT
PRIOR TO DOING SO THE CITY HAD FILED A REQUEST FOR DECLARATORY JUDGMENT
WITH THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OR
ASKED FOR APPROVAL OF THE ATTORNEY GENERAL OF THE UNITED STATES . . .
." 

HE CORRECTLY OBSERVED FURTHER THAT, ALTHOUGH THERE WAS NO PROOF THAT
THE CHALLENGED ANNEXATIONS WHICH CHANGED THE CITY'S BOUNDARIES WERE
MADE FOR THE PURPOSE OF DENYING ANYONE ANY VOTING RIGHT OR ANY RIGHT
GUARANTEED BY THE FOURTEENTH OR FIFTEENTH AMENDMENTS, "THE CASE OF
ALLEN VERSUS STATE BOARD OF ELECTIONS HELD THAT IT IS NOT THE FUNCTION
OR PREROGATIVE OF THIS COURT, EVEN IF IT WERE NOW SITTING AS A THREE
JUDGE COURT, TO DETERMINE THE MOTIVE OF THE CITY IN EXTENDING ITS
BOUNDARY."  FOR ALLEN HAD EXPLICITLY HELD THAT, AS BETWEEN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AND OTHER DISTRICT
COURTS "CONGRESS INTENDED TO TREAT 'COVERAGE' QUESTIONS DIFFERENTLY
FROM 'SUBSTANTIVE DISCRIMINATION' QUESTIONS," 393 U.S.,AT 559, AND
THEREFORE:  "WE DO NOT CONSIDER WHETHER THIS CHANGE HAS A
DISCRIMINATORY PURPOSE OR EFFECT."  393 U.S.,AT 570.  THIS IS NOT TO
SAY THAT A DISTRICT COURT LIMITED TO DECIDING A "COVERAGE" QUESTION
SHOULD CLOSE ITS EYES TO THE CONGRESSIONAL PURPOSE IN ENACTING SEC. 5--
TO PREVENT THE INSTITUTION OF CHANGES WHICH MIGHT HAVE THE PURPOSE OR
EFFECT OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR
COLOR, FOR CONGRESS MEANT TO REACH "THE SUBTLE, AS WELL AS THE OBVIOUS,
STATE REGULATIONS . . . " WHICH MAY HAVE THAT EFFECT.  393 U.S.,AT
565.  WHAT IS FORECLOSED TO SUCH DISTRICT COURT IS WHAT CONGRESS
EXPRESSLY RESERVED FOR CONSIDERATION BY THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA OR THE ATTORNEY GENERAL-- THE DETERMINATION
WHETHER A COVERED CHANGE DOES OR DOES NOT HAVE THE PURPOSE OR EFFECT
"OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR
COLOR." 

THE SINGLE JUDGE MADE THE LIMITED EXAMINATION OF THE CLAIMS
CONCERNING BOUNDARY EXTENSIONS AND SELECTION OF POLLING PLACES
PERMITTED BY ALLEN AND, ON THE BASIS OF PRELIMINARY FINDINGS THAT BOTH
WERE REQUIRED TO BE SUBMITTED UNDER SEC. 5, GRANTED THE TEMPORARY
INJUNCTION.  /6/  BUT THE THREE-JUDGE COURT (WHICH INCLUDED THE SINGLE
JUDGE) DID NOT ADHERE TO ALLEN'S HOLDING.  AS WE READ THE OPINION OF
THE THREE-JUDGE COURT, THE CHALLENGED CHANGES WERE EXAMINED ON THE
MERITS TO DETERMINE WHETHER THEY HAD "A DISCRIMINATORY PURPOSE OR
EFFECT."  THIS EMERGES WITH PARTICULAR CLARITY IN THE COURT'S
CONSIDERATION OF THE ANNEXATIONS.  CANTON'S FAILURE TO OBTAIN PRIOR
APPROVAL OF THE ANNEXATIONS WAS HELD NOT TO VIOLATE THE ACT ON THE
EXPRESS GROUND THAT "THE BLACK VOTERS STILL HAD A MAJORITY OF NOT LESS
THAN 600 AFTER THE EXPANSIONS WERE EFFECTED."  301 F.SUPP.,AT 567. 
SIMILARLY, IN CONSIDERING THE CHANGE FROM WARD TO AT-LARGE ELECTION OF
ALDERMEN, AS PROVIDED BY A 1962 MISSISSIPPI STATUTE, MISS.  CODE ANN.
SEC. 3374-36 (SUPP. 1968), THE COURT REMARKED, "SINCE A MAJORITY OF THE
VOTERS IN CANTON ARE BLACK IT IS EQUALLY TRUE THAT UNDER THE 1962 ACT
THE BLACK VOTERS HAVE THE POWER, IF THEY WISH TO BE INFLUENCED BY RACE
ALONE TO ELECT AN ALL BLACK GOVERNING BODY."  ID., AT 568. 

IT IS TRUE THAT THE THREE-JUDGE COURT DISCLAIMED RELIANCE ON LACK OF
DISCRIMINATORY EFFECT AS THE BASIS FOR ITS HOLDING THAT THE CHANGE FROM
WARD TO AT-LARGE ELECTION OF ALDERMEN WAS NOT COVERED BY SEC. 5; THE
COURT STATED THAT ITS DECISION RESTED ON THE FACT THAT THE 1962 LAW
ANTEDATED THE VOTING RIGHTS ACT OF 1965 AND SHOULD BE COMPLIED WITH
"REGARDLESS OF WHETHER (THE CITY) COMPLIED IN 1965."  IBID.  IT IS
FURTHER TRUE THAT IN FINDING "NO MERIT" IN THE CHALLENGE TO THE
RELOCATION OF THE POLLING PLACES, THE COURT BASED THE HOLDING ON PROOFS
THAT "(THE CHANGES WERE MADE NECESSARY BECAUSE ONE PLACE DID NOT HAVE
SPACE FOR VOTING MACHINES, TWO OTHERS HAD TO BE MOVED BECAUSE THEY HAD
BEEN SITUATED ON PRIVATE PROPERTY (BANK LOBBIES) AND PERMISSION TO USE
THE SPACE HAD BEEN WITHDRAWN, AND ANOTHER WAS MOVED OUT OF THE
COURTHOUSE TO A SCHOOL BUILDING BECAUSE FACILITIES WERE MORE AMPLE AND
THE MOVE ELIMINATED ANY INTERFERENCE WITH SESSIONS OF THE VARIOUS
COURTS SITTING AT THE COURTHOUSE."  IBID.  NEVERTHELESS, THESE
CONSIDERATIONS, SO FAR AS RELEVANT, ARE RELEVANT ONLY TO THE QUESTIONS
RESERVED BY SEC. 5 FOR CONSIDERATION BY THE ATTORNEY GENERAL OF THE
UNITED STATES OR THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. 

HOWEVER, IN THE INTEREST OF JUDICIAL ECONOMY, WE SHALL NOT REMAND TO
THE DISTRICT COURT FOR THE MAKING OF A PROPERLY LIMITED INQUIRY.  THE
RECORD IS ADEQUATE TO ENABLE US TO DECIDE WHETHER THE CHALLENGED
CHANGES SHOULD HAVE BEEN SUBMITTED FOR APPROVAL, AND WE SHALL,
THEREFORE, DECIDE THAT QUESTION. 

        II 

WE HELD IN ALLEN THAT CONGRESS INTENDED THAT THE ACT BE GIVEN "THE
BROADEST POSSIBLE SCOPE" TO REACH "ANY STATE ENACTMENT WHICH ALTERED
THE ELECTION LAW OF A COVERED STATE IN EVEN A MINOR WAY."  393 U.S.,AT
566, 567.  "IT IS SIGNIFICANT THAT CONGRESS CHOSE NOT TO INCLUDE EVEN .
. . MINOR EXCEPTIONS (E.G., CHANGING FROM PAPER BALLOTS TO VOTING
MACHINES) IN SEC. 5, THUS INDICATING AN INTENTION THAT ALL CHANGES, NO
MATTER HOW SMALL, BE SUBJECTED TO SEC. 5 SCRUTINY."  ID., AT 568. 
TESTED BY THAT STANDARD, EACH OF THE THREE CHANGES CHALLENGED IN THIS
CASE FALLS WITHIN SEC. 5, IF NOT AS A "VOTING QUALIFICATION OR
PREREQUISITE TO VOTING," AT ALL EVENTS AS A "STANDARD, PRACTICE, OR
PROCEDURE WITH RESPECT TO VOTING DIFFERENT FROM THAT IN FORCE OR EFFECT
ON NOVEMBER 1, 1964." 

EVEN WITHOUT GOING BEYOND THE PLAIN WORDS OF THE STATUTE, WE THINK
IT CLEAR THAT THE LOCATION OF POLLING PLACES CONSTITUTES A "STANDARD,
PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING."  THE ABSTRACT RIGHT TO
VOTE MEANS LITTLE UNLESS THE RIGHT BECOMES A REALITY AT THE POLLING
PLACE ON ELECTION DAY.  THE ACCESSIBILITY, PROMINENCE, FACILITIES, AND
PRIOR NOTICE OF THE POLLING PLACE'S LOCATION ALL HAVE AN EFFECT ON A
PERSON'S ABILITY TO EXERCISE HIS FRANCHISE.  GIVEN SEC. 5'S EXPLICIT
CONCERN WITH BOTH THE PURPOSE AND THE EFFECT OF A VOTING "STANDARD,
PRACTICE, OR PROCEDURE," THE LOCATION OF POLLING PLACES COMES WITHIN
THE SECTION'S COVERAGE.  MOREOVER, THE LEGISLATIVE HISTORY PROVIDES
AMPLE SUPPORT FOR THE CONCLUSION THAT CONGRESS INTENDED SEC. 5 TO COVER
A CHANGE IN POLLING PLACES.  BEFORE THE SENATE JUDICIARY COMMITTEE, THE
ATTORNEY GENERAL EXPLICITLY TESTIFIED THAT A CHANGE IN "THE PLACE OF
REGISTRATION" AND A CHANGE "FROM A PAPER BALLOT TO A MACHINE" WERE
CHANGES OF THE KIND THAT SEC. 5 WAS DESIGNED TO REACH.  /7/  PLAINLY
THE RELOCATION OF THE POLLING PLACES IS PRECISELY THE SAME KIND OF
CHANGE.  MOREOVER, THERE INHERES IN THE DETERMINATION OF THE LOCATION
OF POLLING PLACES AN OBVIOUS POTENTIAL FOR "DENYING OR ABRIDGING THE
RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR."  79 STAT. 439, 42 U.S.C.
SEC. 1973C (1964 ED., SUPP. V).  LOCATIONS AT DISTANCES REMOTE FROM
BLACK COMMUNITIES OR AT PLACES CALCULATED TO INTIMINDATE BLACKS FROM
ENTERING, OR FAILURE TO PUBLICIZE CHANGES ADEQUATELY MIGHT WELL HAVE
THAT EFFECT.  CONSEQUENTLY, WE THINK IT CLEAR THAT SEC. 5 REQUIRES
PRIOR SUBMISSION OF ANY CHANGES IN THE LOCATION OF POLLING PLACES. 

CHANGING BOUNDARY LINES BY ANNEXATIONS WHICH ENLARGE THE CITY'S
NUMBER OF ELIGIBLE VOTERS ALSO CONSTITUTES THE CHANGE OF A "STANDARD,
PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING."  CLEARLY, REVISION OF
BOUNDARY LINES HAS AN EFFECT ON VOTING IN TWO WAYS:  (1) BY INCLUDING
CERTAIN VOTERS WITHIN THE CITY AND LEAVING OTHERS OUTSIDE, IT
DETERMINES WHO MAY VOTE IN MUNICIPAL ELECTION AND WHO MAY NOT; (2) IT
DILUTES THE WEIGHT OF THE VOTES OF THE VOTERS TO WHOM THE FRANCHISE WAS
LIMITED BEFORE THE ANNEXATION, AND "THE RIGHT OF SUFFRAGE CAN BE DENIED
BY A DEBASEMENT OR DILUTION OF THE WEIGHT OF A CITIZEN'S VOTE JUST AS
EFFECTIVELY AS BY WHOLLY PROHIBITING THE FREE EXERCISE OF THE
FRANCHISE."  REYNOLDS V. SIMS, 377 U.S. 533, 555 (1964).  MOREOVER,
SEC. 5 WAS DESIGNED TO COVER CHANGES HAVING A POTENTIAL FOR RACIAL
DISCRIMINATION IN VOTING, AND SUCH POTENTIAL INHERES IN A CHANGE IN THE
COMPOSITION OF THE ELECTORATE AFFECTED BY AN ANNEXATION.  GOMILLION V.
LIGHTFOOT, 364 U.S. 339 (1960), PROVIDES A CLEARCUT ILLUSTRATION OF THE
POTENTIAL OF BOUNDARY CHANGES FOR "DENYING OR ABRIDGING THE RIGHT TO
VOTE ON ACCOUNT OF RACE OR COLOR."  IN ADDITION, BASED ON THE FINDINGS
OF AN 18-MONTH STUDY OF THE OPERATION OF THE VOTING RIGHTS ACT BY THE
UNITED STATES CIVIL RIGHTS COMMISSION, THE COMMISSION'S DIRECTOR
REPORTED TO CONGRESS THAT GERRYMANDERING AND BOUNDARY CHANGES HAD
BECOME PRIME WEAPONS FOR DISCRIMINATING AGAINST NEGRO VOTERS: 

     "THE HISTORY OF WHITE DOMINATION IN THE SOUTH HAS BEEN ONE OF

  ADAPTIVENESS, AND THE PASSAGE OF THE VOTING RIGHTS ACTS AND THE

  INCREASED BLACK REGISTRATION THAT FOLLOWED HAS RESULTED IN NEW

  METHODS TO MAINTAIN WHITE CONTROL OF THE POLITICAL PROCESS. 

     "FOR EXAMPLE, STATE LEGISLATURES AND POLITICAL PARTY
COMMITTEES

  IN ALABAMA AND MISSISSIPPI HAVE ADOPTED LAWS OR RULES SINCE THE

  PASSAGE OF THE ACT WHICH HAVE HAD THE PURPOSE OR EFFECT OF

  DILUTING THE VOTES OF NEWLY ENFRANCHISED NEGRO VOTERS.  THESE

MEASURES HAVE TAKEN THE FORM OF SWITCHING TO AT-LARGE ELECTIONS

  WHERE NEGRO VOTING STRENGTH IS CONCENTRATED IN PARTICULAR

  ELECTION DISTRICTS, FACILITATING THE CONSOLIDATION OF

  PREDOMINANTLY NEGRO AND PREDOMINANTLY WHITE COUNTIES, AND

  REDRAWING THE LINES OF DISTRICTS TO DIVIDE CONCENTRATIONS OF

  NEGRO VOTING STRENGTH."  HEARINGS ON VOTING RIGHTS ACT EXTENSION

  BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE

  JUDICIARY, 91ST CONG., 1ST SESS., SER.  3, P.17 (1969) (REMARKS
OF

  MR. GLICKSTEIN).  /8/ 

IN FAIRLEY V. PATTERSON, 393 U.S. 544 (1969), A COMPANION CASE TO
ALLEN, THIS COURT HELD THAT SEC. 5 APPLIED TO A CHANGE FROM DISTRICT TO
AT-LARGE ELECTION OF COUNTY SUPERVISORS ON THE GROUND THAT 

"(THE RIGHT TO VOTE CAN BE AFFECTED BY A DILUTION OF VOTING POWER AS
WELL AS BY AN ABSOLUTE PROHIBITION ON CASTING A BALLOT.  SEE REYNOLDS
V. SIMS, 377 U.S. 533, 555 (1964)."  393 U.S.,AT 569.  MR. JUSTICE
HARLAN'S SEPARATE OPINION IN THAT CASE ACCURATELY RECOGNIZED THAT THE
COURT'S HOLDING RESTED ON ITS CONCLUSION THAT "CONGRESS INTENDED TO
ADOPT THE CONCEPT OF VOTING ARTICULATED IN REYNOLDS V. SIMS, 377 U.S.
533 (1964), AND PROTECT NEGROES AGAINST A DILUTION OF THEIR VOTING
POWER."  FAIRLEY V. PATTERSON, SUPRA, AT 588.  IN TERMS OF DILUATION OF
VOTING POWER, THERE IS NO DIFFERENCE BETWEEN A CHANGE FROM DISTRICT TO
AT-LARGE ELECTION AND AN ANNEXATION THAT CHANGES BOTH THE BOUNDARIES
AND WARD LINES OF A CITY TO INCLUDE MORE VOTERS.  WE FOLLOW FAIRLEY AND
HOLD THAT SEC. 5 APPLIES TO THE ANNEXATIONS IN THIS CASE. 

OUR CONCLUSION THAT BOTH THE LOCATION OF THE POLLING PLACES AND
MUNICIPAL BOUNDARY CHANGES COME WITHIN SEC. 5 DRAWS FURTHER SUPPORT
FROM THE INTERPRETATION FOLLOWED BY THE ATTORNEY GENERAL IN HIS
ADMINISTRATION OF THE STATUTE.  "(THIS COURT SHOWS GREAT DEFERENCE TO
THE INTERPRETATION GIVEN THE STATUTE BY THE OFFICERS OR AGENCY CHARGED
WITH ITS ADMINISTRATION."  UDALL V. TALLMAN, 380 U.S. 1, 16 (1965). 
THE ATTORNEY GENERAL'S INTERPRETATION WAS RECENTLY REPORTED BY
OFFICIALS OF THE DEPARTMENT OF JUSTICE IN TESTIMONY RELATED TO THE
EXTENSION OF THE 1965 ACT.  /9/  THEY TESTIFIED THAT THE DEPARTMENT
REGARDED RELOCATING POLLING PLACES AND ANNEXING TERRITORY /10/  AS
FALLING WITHIN THE ACT.  THEIR TESTIMONY ALSO INDICATED THAT THIS
INTERPRETATION WAS ACCEPTED BY AT LEAST SOME AFFECTED STATES AND
POLITICAL SUBDIVISIONS, WHICH HAD SUBMITTED SUCH CHANGES FOR THE
ATTORNEY GENERAL'S APPROVAL.  HEARINGS ON AMENDMENTS TO THE VOTING
RIGHTS ACT OF 1965 BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF
THE SENATE COMMITTEE ON THE JUDICIARY, 91ST CONG., 1ST SESS., 248
(1969), ID., 2D SESS., 506 (1970). 

IN SUPPORT OF THIS TESTIMONY, THE JUSTICE DEPARTMENT SUBMITTED A
FORMAL TABLE SHOWING THE 313 CHANGES IN LAWS WITH RESPECT TO VOTING
WHICH HAD BEEN SUBMITTED TO THE ATTORNEY GENERAL AND ACTED UPON BY HIM
BETWEEN 1965 AND 1969.  THE DEPARTMENT DIVIDED ITS RESPONSES TO THESE
SUBMISSIONS INTO THREE CATEGORIES:  (1) CHANGES THAT THE DEPARTMENT DID
NOT CONSIDER WITHIN THE SCOPE OF SEC. 5; (2) CHANGES THAT THE
DEPARTMENT CONSIDERED WITHIN THE SCOPE OF SEC. 5, BUT TO WHICH THE
DEPARTMENT DID NOT OBJECT; AND (3) CHANGES WITHIN THE SCOPE OF SEC. 5
TO WHICH THE DEPARTMENT OBJECTED AS DISCRIMINATORY.  EVERY CHANGE IN
BOUNDARY OR ELECTION DISTRICT LINES /11/  AS WELL AS EVERY CHANGE IN
POLLING PLACES SHOWN IN THAT TABLE WAS CONSIDERED BY THE DEPARTMENT TO
BE WITHIN THE SCOPE OF SEC. 5.  HEARING ON VOTING RIGHTS ACT EXTENSION
BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 91ST
CONG., 1ST SESS., SER.  3, PP. 308-313 (1969). 

THE CHANGE FROM WARD TO AT-LARGE ELECTIONS OF ALL ALDERMEN WAS OF
COURSE A CHANGE WITHIN THE COVERAGE OF THE ACT.  FAIRLEY V. PATTERSON,
SUPRA, IS DISPOSITIVE OF THAT QUESTION.  HOWEVER, THE QUESTION ARISES
IN THIS CASE IN A PECULIAR CONTEXT.  THE CHANGE TO AT-LARGE ELECTIONS
WAS MANDATED BY A MISSISSIPPI STATUTE ENACTED IN 1962.  BUT CANTON
IGNORED THE MANDATE IN THE CONDUCT OF THE 1965 MUNICIPAL ELECTIONS AND,
AS IN 1961, ELECTED ALDERMEN BY WARDS.  /12/  CANTON NOW ARGUES THAT IT
HAD NO CHOICE BUT TO COMPLY WITH THE 1962 STATUTE IN THE 1969
ELECTIONS. 

WE HAVE CONCLUDED, NEVERTHELESS, THAT THE CHANGE TO AT-LARGE
ELECTIONS REQUIRED FEDERAL SCRUTINY UNDER SEC. 5.  THAT SECTION IN
EXPRESS TERMS REACHES ANY STANDARD, PRACTICE, OR PROCEDURE "DIFFERENT
FROM THAT IN FORCE OR EFFECT ON NOVEMBER 1, 1964."  IN OUR VIEW, SEC.
5'S REFERENCE TO THE PROCEDURE "IN FORCE OR EFFECT ON NOVEMBER 1,
1964," MUST BE TAKEN TO MEAN THE PROCEDURE THAT WOULD HAVE BEEN
FOLLOWED IF THE ELECTION HAD BEEN HELD ON THAT DATE.  THAT JUDGMENT IS
NECESSARILY A MATTER OF INFERENCE IN THIS CASE SINCE CANTON DID NOT
HOLD A MUNIPICAL ELECTION ON NOVEMBER 1, 1964.  BUT IN DRAWING THAT
INFERENCE, THERE IS LITTLE REASON TO BLIND OURSELVES TO RELEVANT
EVIDENCE IN THE RECORD BY RESTRICTING OUR GAZE TO EVENTS THAT OCCURRED
BEFORE THAT DATE.  ORDINARILY WE PRESUME THAT OFFICIALS WILL ACT IN
ACCORDANCE WITH LAW.  SEE FIRST NATIONAL BANK OF ALBUQUERQUE V.
ALBRIGHT, 208 U.S. 548, 553 (1908).  IF THE ONLY AVAILABLE FACTS SHOWED
THAT CANTON CONDUCTED ITS 1961 ELECTION BY WARDS BUT THAT THE
MISSISSIPPI LEGISLATURE HAD SUBSEQUENTLY ENACTED A STATUTE IN 1962
REQUIRING FUTURE MUNICIPAL ELECTIONS TO BE HELD AT LARGE, CANTON
OFFICIALS WOULD BE ENTITLED TO THE WEIGHT OF THAT PRESUMPTION. 

WITH THE BENEFIT OF HINDSIGHT, HOWEVER, WE KNOW THAT CANTON ELECTED
ITS ALDERMEN BY WARDS IN ITS JUNE 1965 MUNICIPAL ELECTION.  THE RECORD
REFLECTS NO RELEVANT CHANGE BETWEEN NOVEMBER 1964 AND JUNE 1965 TO
SUGGEST THAT A DIFFERENT PROCEDURE WOULD HAVE BEEN IN EFFECT IF THE
ELECTIONS HAD BEEN HELD SEVEN MONTHS EARLIER.  CONSEQUENTLY, WE
CONCLUDE THAT THE PROCEDURE IN FACT "IN FORCE OR EFFECT" IN CANTON ON
NOVEMBER 1, 1964, WAS TO ELECT ALDERMEN BY WARDS.  THAT FUFFICED TO
BRING THE 1969 CHANGE WITHIN SEC. 5.  AS WAS THE CASE IN ALLEN, "IT IS
CLEAR, HOWEVER, THAT THE NEW PROCEDURE WITH RESPECT TO VOTING IS
DIFFERENT FROM THE PROCEDURE IN EFFECT WHEN . . . (CANTON) BECAME
SUBJECT TO THE ACT . . . ."  393 U.S.,AT 570.  THE BEARING OF THE 1962
STATUTE UPON THE CHANGE WAS FOR THE ATTORNEY GENERAL OR THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA TO DECIDE. 

     III 

THE APPELLANTS HAVE URGED THAT, IN ADDITION TO REVERSING THE
DISTRICT COURT JUDGMENT, THE COURT SHOULD SET ASIDE THE ELECTIONS HELD
IN OCTOBER 1969, AND ORDER NEW ELECTIONS HELD FORTHWITH IN WHICH THE
CHANGES CHALLENGED IN THIS CASE MAY NOT BE ENFORCED.  IN ALLEN WE
DECLINED A LIKE INVITATION AND GAVE THAT DECISION ONLY PROSPECTIVE
EFFECT, PRIMARILY BECAUSE THE SCOPE OF SEC. 5 COVERAGE WAS THEN AN
ISSUE OF FIRST IMPRESSION AND "SUBJECT TO RATIONAL DISAGREEMENT."  393
U.S.,AT 572.  THAT REASONING IS INAPPLICABLE IN THIS CASE SINCE ALLEN
WAS DECIDED TWO MONTHS BEFORE THE ORIGINALLY SCHEDULED DATES OF THE
CANTON ELECTIONS. 

IN ARGUING FOR NEW ELECTIONS, APPELLANTS EMPHASIZE THE DESIRE OF
CONGRESS TO ENSURE THAT STATES AND SUBDIVISIONS COVERED BY THE ACT NOT
INSTITUTE NEW LAWS WITH RESPECT TO VOTING THAT MIGHT HAVE A RACIALLY
DISCRIMINATORY PURPOSE OR EFFECT.  ON THE BASIS OF THE LEGISLATIVE
HISTORY, THERE IS LITTLE QUESTION THAT CONGRESS SOUGHT TO ACHIEVE THIS
GOAL BY RELYING UPON THE VOLUNTARY SUBMISSION BY AFFECTED STATES AND
SUBDIVISIONS OF ALL CHANGES IN SUCH LAWS BEFORE ENFORCING THEM. 
FAILURE OF THE AFFECTED GOVERNMENTS TO COMPLY WITH THE STATUTORY
REQUIREMENT WOULD NULLIFY THE ENTIRE SCHEME SINCE THE DEPARTMENT OF
JUSTICE DOES NOT HAVE THE RESOURCES TO POLICE EFFECTIVELY ALL THE
STATES AND SUBDIVISIONS COVERED BY THE ACT, SEE ALLEN, 393 U.S.,AT 556,
AND SINCE PRIVATE SUITS SEEM UNLIKELY TO SUFFICIENTLY SUPPLEMENT
FEDERAL SUPERVISION.  MOREOVER, BASED UPON AMPLE PROOF OF REPEATED
EVASION OF COURT DECREES AND OF EXTENDED LITIGATION DESIGNED TO DELAY
THE IMPLEMENTATION OF FEDERAL CONSTITUTIONAL RIGHTS, CONGRESS EXPRESSLY
INDICATED ITS INTENTION THAT THE STATES AND SUBDIVISIONS, RATHER THAN
CITIZENS SEEKING TO EXERCISE THEIR RIGHTS, BEAR THE BURDEN OF DELAYS IN
LITIGATION.  /13/ 

AT THE SAME TIME, WE RECOGNIZE THAT, IN DETERMINING THE APPROPRIATE
REMEDY, OTHER FACTORS MAY BE RELEVANT, SUCH AS THE NATURE OF THE
CHANGES COMPLAINED OF, AND WHETHER IT WAS REASONABLY CLEAR AT THE TIME
OF THE ELECTION THAT THE CHANGES WERE COVERED BY SEC. 5.  IN CERTAIN
CIRCUMSTANCES, FOR EXAMPLE, IT MIGHT BE APPROPRIATE TO ENTER AN ORDER
AFFORDING LOCAL OFFICIALS AN OPPORTUNITY TO SEEK FEDERAL APPROVAL AND
ORDERING A NEW ELECTION ONLY IF LOCAL OFFICIALS FAIL TO DO SO OR IF THE
REQUIRED FEDERAL APPROVAL IS NOT FORTHCOMING.  SINCE THE DISTRICT COURT
IS MORE FAMILIAR WITH THE NUANCES OF THE LOCAL SITUATION THAN ARE WE,
AND HAS HEARD THE EVIDENCE IN THIS CASE, WE THINK THE QUESTION OF THE
APPROPRIATE REMEDY IS FOR THAT COURT TO DETERMINE, IN THE FIRST
INSTANCE, AFTER HEARING THE VIEWS OF BOTH PARTIES.  /14/ 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED, AND THE CASE IS
REMANDED TO THAT COURT WITH INSTRUCTIONS TO ISSUE INJUNCTIONS
RESTRAINING THE FURTHER ENFORCEMENT OF THE CHANGES UNTIL SUCH TIME AS
THE APPELLEES ADEQUATELY DEMONSTRATE COMPLIANCE WITH SEC. 5, AND FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE FULL TEXT OF SEC. 5, 42 U.S.C. 1973C (1964 ED., SUPP. V),
PROVIDES: 

"WHENEVER A STATE OR POLITICAL SUBDIVISION WITH RESPECT TO WHICH THE
PROHIBITIONS SET FORTH IN SECTION 1973BA) OF THIS TITLE ARE IN EFFECT
SHALL ENACT OR SEEK TO ADMINISTER ANY VOTING QUALIFICATION OR
PREREQUISITE TO VOTING, OR STANDARD, PRACTICE, OR PROCEDURE WITH
RESPECT TO VOTING DIFFERENT FROM THAT IN FORCE OR EFFECT ON NOVEMBER 1,
1964, SUCH STATE OR SUBDIVISION MAY INSTITUTE AN ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR A DECLARATORY
JUDGMENT THAT SUCH QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR
PROCEDURE DOES NOT HAVE THE PURPOSE AND WILL NOT HAVE THE EFFECT OF
DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR, AND
UNLESS AND UNTIL THE COURT ENTERS SUCH JUDGMENT NO PERSON SHALL BE
DENIED THE RIGHT TO VOTE FOR FAILURE TO COMPLY WITH SUCH QUALIFICATION,
PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE:  PROVIDED, THAT SUCH
QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE MAY BE
ENFORCED WITHOUT SUCH PROCEEDING IF THE QUALIFICATION, PREREQUISITE,
STANDARD, PRACTICE, OR PROCEDURE HAS BEEN SUBMITTED BY THE CHIEF LEGAL
OFFICER OR OTHER APPROPRIATE OFFICIAL OF SUCH STATE OR SUBDIVISION TO
THE ATTORNEY GENERAL AND THE ATTORNEY GENERAL HAS NOT INTERPOSED AN
OBJECTION WITHIN SIXTY DAYS AFTER SUCH SUBMISSION, EXCEPT THAT NEITHER
THE ATTORNEY GENERAL'S FAILURE TO OBJECT NOR A DECLARATORY JUDGMENT
ENTERED UNDER THIS SECTION SHALL BAR A SUBSEQUENT ACTION TO ENJOIN
ENFORCEMENT OF SUCH QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR
PROCEDURE.  ANY ACTION UNDER THIS SECTION SHALL BE HEARD AND DETERMINED
BY A COURT OF THREE JUDGES IN ACCORDANCE WITH THE PROVISIONS OF SECTION
2284 OF TITLE 28 AND ANY APPEAL SHALL LIE TO THE SUPREME COURT." 

/2/  MISSISSIPPI AND ITS SUBDIVISIONS HAVE BEEN DETERMINED TO BE
COVERED BY THE ACT.  30 FED.REG.  9897 (AUG. 6, 1965). 

/3/  "(AN INDIVIDUAL MAY BRING A SUIT FOR DECLARATORY JUDGMENT AND
INJUNCTIVE RELIEF, CLAIMING THAT A STATE REQUIREMENT IS COVERED BY SEC.
5, BUT HAS NOT BEEN SUBJECTED TO THE REQUIRED FEDERAL SCRUTINY."  ALLEN
V. STATE BOARD OF ELECTIONS, 393 U.S. 544, 561 (1969).  WE CONSTRUED
THE STATUTE TO REQUIRE SUCH A SUIT TO BE HEARD BY A THREE-JUDGE COURT. 
IBID. 

/4/  APPELLANTS ALLEGED THAT PRIOR TO THE VOTING RIGHTS ACT OF 1965,
LESS THAN 200 BLACK CITIZENS OF CANTON WERE QUALIFIED ELECTORS.  AT THE
TRIAL OF THIS LAWSUIT, ONE OF THE APPELLANTS TESTIFIED THAT THERE WERE
APPROXIMATELY 3,050 REGISTERED BLACK ELECTORS AND 2,850 WHITE ELECTORS,
FOR THE 1969 ELECTION.  BASED ON AN AVERAGE INDEX OF TWO VOTERS PER
RESIDENCE, THE DISTRICT COURT CONCLUDED THAT THE 1969 FIGURES INCLUDED
APPROXIMATELY 82 BLACK VOTERS AND 176 WHITE VOTERS FROM THE ANNEXATIONS
IN THIS CASE.  THE ANNEXATIONS IN THIS CASE ALSO INCREASED THE LAND
AREA OF THE CITY BY APPROXIMATELY 50% AND REQUIRED THE BOUNDARIES OF
ALL FOUR ELECTION WARDS TO BE CHANGED TO CONFORM TO THE NEW CITY
LIMITS. 

/5/  THE MUNICIPAL PRIMARY ELECTIONS WERE ORIGINALLY SCHEDULED FOR
MAY 13 AND 20, 1969, AND THE MUNICIPAL GENERAL ELECTIONS FOR JUNE 3,
1969.  THE PRIMARY ELECTIONS WERE ACTUALLY HELD OCTOBER 7 AND 14, AND
THE GENERAL ELECTION OCTOBER 28, 1969, AFTER THE THREE-JUDGE COURT
DISSOLVED THE TEMPORARY INJUNCTION.     /6/  THE CLAIM CONCERNING THE
CHANGE FROM WARD TO AT-LARGE ELECTION OF ALDERMEN WAS ADDED BY
AMENDMENT. 

/7/  "THE CHAIRMAN:  I SAY, IS IT NOT A FACT THAT THE KEYSTONE OF
THIS SITUATION IS THAT THESE CHANGES IN PROCEDURES THAT WE ARE TALKING
ABOUT, LIKE CHANGING FROM A PAPER BALLOT TO A MACHINE, MAY NOT LIKELY
HAVE THE EFFECT OF DENYING OR ABRIDGING RIGHTS GUARANTEED BY THE 15TH
AMENDMENT? 

"MR. KATZENBACH: . . . EVEN IN A SENSE A MOST INNOCENT KIND OF LAW,
AS OUR EXPERIENCES HAVE INDICATED TIME AND TIME AGAIN, CAN BE USED. 
YOU CHANGE THE PLACE OF REGISTRATION, FOR INSTANCE."  HEARINGS ON H.R.
6400 BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY,
89TH CONG., 1ST SESS., SER.  2, P. 62 (1965). 

/8/  ONE CONGRESSMAN WHO HAD SUPPORTED THE 1965 ACT OBSERVED, "WHEN
I VOTED FOR THE VOTING RIGHTS ACT OF 1965, I HOPED THAT 5 YEARS WOULD
BE AMPLE TIME.  BUT RESISTANCE TO PROGRESS HAS BEEN MORE SUBTLE AND
MORE EFFECTIVE THAN I THOUGHT POSSIBLE.  A WHOLE ARSENAL OF RACIST
WEAPONS HAS BEEN PERFECTED.  BOUNDARY LINES HAVE BEEN GERRYMANDERED,
ELECTIONS HAVE BEEN SWITCHED TO AN AT-LARGE BASIS, COUNTIES HAVE BEEN
CONSOLIDATED, ELECTIVE OFFICES HAVE BEEN ABOLISHED WHERE BLACKS HAD A
CHANCE OF WINNING, THE APPOINTMENT PROCESS HAS BEEN SUBSTITUTED FOR THE
ELECTIVE PROCESS, ELECTION OFFICIALS HAVE WITHHELD THE NECESSARY
INFORMATION FOR VOTING OR RUNNING FOR OFFICE, AND BOTH PHYSICAL AND
ECONOMIC INTIMIDATION HAVE BEEN EMPLOYED. 

"SECTION 5 WAS INTENDED TO PREVENT THE USE OF MOST OF THESE
DEVICES.  BUT APPARENTLY THE STATES RARELY OBEYED THE MANDATE OF THAT
HEARINGS ON VOTING RIGHTS ACT EXTENSION BEFORE SUBCOMMITTEE NO. 5 OF
THE HOUSE COMMITTEE ON THE JUDICIARY, 91ST CON., 1ST SESS., SER.  3,
PP. 3-4 (1969) (REMARKS OF REP. MCCULLOCH). 

/9/  CONGRESS HAS EXTENDED THE LIFE OF THE 1965 ACT, INCLUDING SEC.
5, FROM 1970 TO 1975.  VOTING RIGHTS ACT AMENDMENTS OF 1970, PUB. L. 91
285, 84 STAT. 314. 

/10/  IN ITS AMICUS BRIEF FILED IN THIS COURT IN FAIRLEY V.
PATTERSON, NO. 25, O.T. 1968, THE GOVERMENT TOOK THE POSITION THAT SEC.
5 APPLIED TO "LAWS (THAT) SUBSTANTIALLY CHANGE THE CONSTITUENCY OF
CERTAIN ELECTED OFFICIALS . . . . THERE IS SURELY NO DOUBT TODAY THAT
THE RIGHT TO VOTE CAN BE CURTAILED AS EFFECTIVELY BY AN IMPERMISSIBLE
DEMARCATION OF AN ELECTED OFFICIAL'S CONSTITUENCY AS BY THE DESTRUCTION
OF BALLOTS OR THE REFUSAL TO PERMIT ACCESS TO THE VOTING BOOTH." 
MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE 13.  WHILE THE
GOVERNMENT WAS ARGUING THERE THAT SEC. 5 REACHED A CHANGE FROM WARD TO
AT-LARGE ELECTIONS, ITS INTERPRETATION IS EQUALLY GERMANE TO THE
BOUNDARY ANNEXATIONS IN THE PRESENT CASE.  MR. JUSTICE HARLAN ARGUES
THAT THE APPARENT CLARITY OF THE DEPARTMENT'S POSITION, TAKEN BEFORE
CONGRESSIONAL COMMITTEES AND BEFORE THIS COURT, IS CLOUDED BY THE
DEPARTMENT'S FAILURE TO CHALLENGE UNSUBMITTED ANNEXATIONS IN COVERED
STATES.  HOWEVER, THE GOVERNMENT, IN ITS AMICUS BRIEF IN FAIRLEY,
SPECIFICALLY DENIED THAT ANY SIGNIFICANCE COULD BE ATTRIBUTED TO THE
GOVERNMENT'S FAILURE TO BRING SUIT.  IN ARGUING THAT SEC. 5 APPLIED TO
REDISTRICTING AND REAPPORTIONMENT IN STATES COVERED BY THE ACT, THE
GOVERNMENT STATED: 

"NOR CAN THE ATTORNEY GENERAL'S FAILURE TO (BRING SUIT) IN CASES
INVOLVING REAPPORTIONMENT AND REDISTRICTING BE PROPERLY VIEWED AS
UNDERMINING THESE SECTION 5 CASES OR REFUTING THE CLEAR CONGRESSIONAL
INTENT THAT THAT PROVISION SHOULD BE GIVEN BROAD SCOPE.  THE MOST THAT
CAN BE ASSUMED FROM PAST SILENCE IS THAT THE ATTORNEY GENERAL WAS NOT
PREPARED TO INTERPOSE AN OBJECTION TO THE CHANGES BEING EFFECTED . . .
."  MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE, SUPRA, AT 22. 

MOREOVER, THERE IS NO INDICATION THAT THE ATTORNEY GENERAL OR OTHER
JUSTICE DEPARTMENT OFFICIALS WERE AWARE OF THE BOUNDARY CHANGES
REFERRED TO IN THE DISSENTING OPINION; NO MENTION OF THEM APPEARS IN
ANY OF THE EXTENSIVE CONGRESSIONAL MATERIALS ON THE JUSTICE
DEPARTMENT'S ENFORCEMENT ACTIVITIES UNDER SEC. 5, SUBMITTED TO CONGRESS
IN RELATION TO THE RECENT EXTENSION OF THE ACT FROM 1970 TO 1975. 
HEARINGS ON AMENDMENTS TO THE VOTING RIGHTS ACT OF 1965 BEFORE THE
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE
JUDICIARY, 91ST CONG., 1ST AND 2D SESS.  (1969, 1970); HEARINGS ON
VOTING RIGHTS ACT EXTENSION BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 91ST CONG., 1ST SESS., SER.  3 (1969). 
FIANLLY, ATTRIBUTING SIGNIFICANCE TO ANY APPARENT FAILURE OF THE
GOVERNMENT TO ACT IS PARTICULARLY HAZARDOUS IN THIS CASE.  SECTION 5
WAS ENACTED IN LARGE PART BECAUSE OF THE ACKNOWLEDGED AND ANTICIPATED
INABILITY OF THE JUSTICE DEPARTMENT-- GIVEN LIMITED RESOURCES-- TO
INVESTIGATE INDEPENDENTLY ALL CHANGES WITH RESPECT TO VOTING ENACTED BY
STATES AND SUBDIVISIONS COVERED BY THE ACT.  SEE N. 13, INFRA.  FOR
THAT REASON, SEC. 5 PLACES THE BURDEN ON THE AFFECTED POLITIES TO
SUBMIT ALL CHANGES FOR PRIOR APPROVAL.  THAT THE DEPARTMENT MAY HAVE
BEEN UNABLE TO DISCOVER AND INVESTIGATE CHANGES NOT REPORTED TO IT
SHOULD NOT, IN THESE CIRCUMSTANCES, BE SURPRISING, AND DOES NOT CAST
ANY SERIOUS DOUBT ON EXPLICIT OFFICIAL STATEMENTS OF THE DEPARTMENT'S
INTERPRETATION OF THE STATUTE. 

/11/  THE TABLE REFLECTS THE FACT THAT ONLY SOUTH CAROLINA HAS
COMPLIED RIGOROUSLY WITH SEC. 5.  THROUGH JUNE 1969, IT SUBMITTED 252
CHANGES FOR APPROVAL, INCLUDING ALL THREE ANNEXATIONS (AND ONE
CONSOLIDATION) THAT WERE APPROVED BY THE STATE LEGISLATURE BETWEEN 1965
AND 1969.  NO POLITICAL SUBDIVISIONS OF SOUTH CAROLINA, HOWEVER,
SUBMITTED ANY CHANGES ON THEIR OWN INITIATIVE.  GEORGIA AND ITS
SUBDIVISIONS HAD SUBMITTED 60 CHANGES FOR APPROVAL, INCLUDING ONE
ANNEXATION, ONE CONSOLIDATION OF ELECTION DISTRICTS, AND TWO CHANGES IN
THE LINES OF ELECTION DISTRICTS.  IT IS TRUE THAT THE GEORGIA SESSION
LAWS REFLECT NUMEROUS ANNEXATIONS THAT WERE NOT SUBMITTED TO THE
ATTORNEY GENERAL.  IT IS ALSO TRUE THAT THE GEORGIA SESSION LAWS
REFLECT AT LEAST AN EQUAL NUMBER OF CHANGES, OBVIOUSLY COVERED UNDER
ANY INTERPRETATION OF SEC. 5, THAT WERE ALSO NOT SUBMITTED.  FOR
EXAMPLE, IN 1965, THE GEORGIA STATE LEGISLATURE ENACTED THE FOLLOWING
ACTS, EACH APPLICABLE TO ONE MUNICIPALITY, WHICH WERE NOT SUBMITTED TO
THE ATTORNEY GENERAL; FOUR ACTS CHANGING VOTER QUALIFICATIONS IN
MUNICIPAL ELECTIONS, THREE ACTS CHANGING MUNICIPAL ELECTIONS FROM PAPER
BALLOTS TO VOTING MACHINES, FOUR ACTS COMPLETELY REVISING MUNICIPAL
ELECTION CODES, AND TWO ACTS REQUIRING A MAJORITY VOTE, INSTEAD OF A
PLURALITY, FOR ELECTION OF CITY OFFICIALS.  IN 1968, THE GEORGIA STATE
LEGISLATURE ENACTED THE FOLLOWING ACTS, EACH APPLICABLE TO ONE
MUNICIPALITY, WHICH WERE NOT SUBMITTED TO THE ATTORNEY GENERAL: SEVEN
ACTS CHANGING THE DATES OF MUNICIPAL ELECTIONS AND INCREASING THE TERMS
OF MUNICIPAL OFFICIALS, ONE ACT CREATING A VOTER RESIDENCY REQUIREMENT
AND AN OATH TO BE TAKEN BY ALL VOTERS, ONE ACT CHANGING THE NUMBER OF
ALDERMEN AND REQUIRING A MAJORITY VOTE FOR ELECTION OF ALDERMEN, ONE
ACT CHANGING VOTER QUALIFICATIONS, AND ONE ACT COMPLETELY REVISING A
MUNICIPAL ELECTION CODE.  NOR IS THIS AN EXHAUSTIVE LIST EVEN FOR THOSE
TWO YEARS.  THE REMAINING FOUR STATES COVERED BY THE ACT-- MISSISSIPPI,
ALABAMA, LOUISIANA, AND VIRGINIA-- HAVE SUBMITTED A COMBINED TOTAL OF
33 CHANGES.  THE ONLY CONCLUSION TO BE DRAWN FROM THIS UNFORTUNATE
RECORD IS THAT ONLY ONE STATE IS REGULARLY COMPLYING WITH SEC. 5'S
REQUIREMENT. 

/12/  THE REASON FOR CANTON'S FAILURE TO CONFORM ITS ELECTION TO
STATE LAW DOES NOT APPEAR IN THE RECORD.  ON ORAL ARGUMENT, APPELLEE'S
COUNSEL STATED THAT THE LAPSE WAS DUE TO HIS OVERLOOKING THE 1962 LAW. 

/13/  E.G., HEARINGS ON H.R. 6400 BEFORE SUBCOMMITTEE NO. 5 OF THE
HOUSE COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., SER.  2, PP.
60, 72 (1965); HEARINGS ON S. 1564 BEFORE THE SENATE COMMITTEE ON THE
JUDICIARY, 89TH CONG., 1ST SESS, PT. 1, PP. 14-17 (1965); 111 CONG.
REC. 10727 (1965) (REMARKS OF SEN. TYDINGS); ID., AT 15645, 15648
(REMARKS OF REP. CELLER); ID., AT 16221 (REMARKS OF REP. CORMAN). 
OPPONENTS OF THE ACT ALSO RECOGNIZED THE SEVERITY OF SEC. 5'S
REQUIREMENTS.  E.G., ID., AT 10725 (REMARKS OF SEN. TALMADGE); ID., AT
15657 (REMARKS OF REP. WILLIS). 

/14/  WE ADD ONLY ONE RESTRICTION: IF THE DISTRICT COURT DECIDES
THAT A NEW ELECTION IS REQUIRED, CANTON SHOULD BE PERMITTED TO ENFORCE
ANY CHANGES AT THE NEW ELECTION FOR WHICH IT CAN OBTAIN FEDERAL
APPROVAL. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING
IN THE JUDGMENT. 

GIVEN THE DECISION IN ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S.
544 (1969), A CASE NOT CITED BY THE DISTRICT COURT, I JOIN IN THE
JUDGMENT OF REVERSAL AND IN THE ORDER OF REMAND. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

OUR ROLE IN THIS CASE, AS THE COURT CORRECTLY RECOGNIZES, IS LIMITED
TO DETERMINATION WHETHER SEC. 5 OF THE VOTING RIGHTS ACT OF 1965, 42
U.S.C. 1973C (1964 ED., SUPP. V), REQUIRED THE CITY OF CANTON TO OBTAIN
FEDERAL APPROVAL OF THE WAY IT PROPOSED TO RUN ITS 1969 ELECTIONS.  FOR
THIS REASON, I AM UNABLE TO JOIN THE DISSENTING OPINION OF MR. JUSTICE
BLACK, POST, P. 401, ALTHOUGH, LIKE HIM, I SEE LITTLE LIKELIHOOD THAT
THE CHANGES HERE INVOLVED HAD A DISCRIMINATORY PURPOSE OR EFFECT. 

I AGREE WITH THE COURT, AND FOR SUBSTANTIALLY THE REASONS IT GIVES,
THAT THE CITY SHOULD HAVE SUBMITTED THE RELOCATION OF POLLING PLACES
FOR FEDERAL APPROVAL.  BUT I CANNOT AGREE THAT IT WAS OBLIGED TO FOLLOW
THAT COURSE WITH RESPECT TO THE OTHER TWO MATTERS HERE AT ISSUE. 

        I 

WHETHER OR NOT CONGRESS COULD CONSTITUTIONALLY REQUIRE A STATE TO
SUBMIT ALL CHANGES IN ITS LAWS FOR FEDERAL APPROVAL, EF. SOUTH CAROLINA
V. KATZENBACH, 383 U.S. 301, 358-362 (1966) (SEPARATE OPINION OF BLACK,
J.), THE VOTING RIGHTS ACT DOES NOT PURPORT TO DO SO.  SECTION 5
REQUIRES SUBMISSION OF CHANGES "WITH RESPECT TO VOTING" ONLY.  THE
COURT SEEMS TO INTERPRET THIS RESTRICTION AS INCLUDING ANY CHANGE IN
STATE LAW WHICH HAS AN EFFECT ON VOTING, IF CHANGES OF THAT TYPE HAVE
"A POTENTIAL FOR RACIAL DISCRIMINATION IN VOTING."  ANTE, P. 389.  THE
LIMITATION IMPLIED BY THE LATTER CLAUSE WILL PROVE MEANINGLESS AS A
PRACTICAL MATTER.  GIVEN A CHANGE WITH AN EFFECT ON VOTING, A SET OF
CIRCUMSTANCES MAY BE CONCEIVED WITH RESPECT TO ALMOST ANY SITUATION IN
WHICH THE CHANGE WILL BEAR MORE HEAVILY ON ONE RACE THAN ON ANOTHER. 
IN EFFECT, THEREFORE, THE COURT REQUIRES SUBMISSION OF ANY CHANGE WHICH
HAS AN EFFECT ON VOTING.  I THINK IT PLAIN THAT THE STATUTORY PHRASE--
"WITH RESPECT TO VOTING"-- WAS INTENDED TO HAVE MORE LIMITED COMPASS. 

THE LEGISLATIVE HISTORY OF THE VOTING RIGHTS ACT WAS EXAMINED IN THE
MAJORITY OPINION AND A SEPARATE OPINION IN ALLEN V. STATE BOARD OF
ELECTIONS, 393 U.S. 544, 564-571, 588-591 (1969).  NO USEFUL PURPOSE
WOULD BE SERVED BY RETRAVERSING GROUND COVERED THERE.  THE COURT
CONCLUDED FROM ITS REVIEW OF THE HISTORY THAT SEC. 5 WAS "INTENDED TO
REACH ANY STATE ENACTMENT WHICH ALTERED THE ELECTION LAW OF A COVERED
STATE IN EVEN A MINOR WAY."  ID., AT 566.  THE COURT'S OPINIONS IN BOTH
ALLEN AND THIS CASE ARE DEVOID OF EVIDENCE OF A LEGISLATIVE INTENT TO
GO BEYOND THE STATE'S ELECTION LAW AND TO REACH MATTERS SUCH AS
ANNEXATIONS, WHICH AFFECT VOTING ONLY INCIDENTALLY AND PERIPHERALLY. 
FAIRLEY V. PATTERSON, DECIDED WITH ALLEN, AND THE REMARKS OF THE
SOLICITOR GENERAL IN HIS AMICUS BRIEF IN THAT CASE ARE PLAINLY
DISTINGUISHABLE ON THIS BASIS.  AT LEAST IN THE ABSENSE OF A CONTRARY
ADMINISTRATIVE INTERPRETATION, I WOULD NOT GO BEYOND ALLEN TO HOLD THAT
ANNEXATIONS ARE WITHIN THE SCOPE OF SEC. 5.  THE COURT'S ASSERTION THAT
THE ATTORNEY GENERAL DOES IN FACT INTERPRET THE ACT DIFFERENTLY SEEMS
TO ME TO GIVE TOO MUCH WEIGHT TO THE PASSING REMARK OF AN ASSISTANT
ATTORNEY GENERAL.  CF. ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S.,AT
568-569.  /1/

        II 

FAIRLEY V. PATTERSON HELD THAT A CHANGE FROM ELECTION BY DISTRICTS
TO ELECTION AT LARGE WAS WITHIN THE SCOPE OF SEC. 5.  THE QUESTION FOR
DETERMINATION HERE IS WHICH OF THE TWO PROCEDURES WAS "IN FORCE OR
EFFECT ON NOVEMBER 1, 1964."  THE COURT INTERPRETS THE QUOTED PHRASE TO
MEAN THE PROCEDURE WHICH PROBABLY WOULD HAVE BEEN FOLLOWED IF AN
ELECTION HAD BEEN HELD ON THE CRUCIAL DATE, REGARDLESS OF THE
PROVISIONS OF CONTROLLING STATE LAW.  WHILE THIS INTERPRETATION IS NOT
WHOLLY UNREASONABLE, I FIND IT UNLIKELY THAT IT IS THE ONE CONGRESS
WOULD HAVE PREFERRED IF IT HAD THOUGHT ABOUT THE PROBLEM.  RESOLUTION
OF THE HYPOTHETICAL FACTUAL QUESTION REQUIRED BY THE COURT'S TEST WOULD
BE QUITE INCONVENIENT, IF NOT UNMANAGEABLE, FOR THE ATTORNEY GENERAL OR
THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, FAR FROM THE SCENE. 
/2/  MOREOVER, UNDER THE COURT'S TEST, RESULTS MAY TURN ON THE SEEMING
FORTUITY THAT IN THE FIRST ELECTION AFTER NOVEMBER 1, 1964, LOCAL
OFFICIALS FORGOT ABOUT A CONTROLLING STATUTE OF STATEWIDE APPLICATION
AND NO PRIVATE CITIZEN BROUGHT SUIT TO HAVE THE ELECTION SET ASIDE. 
BARRING STATE ATTEMPTS TO RESURRECT LONG-IGNORED STATUTES, I WOULD
INTERPRET "PROCEDURE . . . IN FORCE OR EFFECT ON NOVEMBER 1, 1964," TO
MEAN THE PROCEDURE REQUIRED BY STATE LAW.  UNDER THIS INTERPRETATION I
WOULD HOLD THAT THE CHANGE FROM ELECTION BY WARDS TO ELECTION AT LARGE
OCCURRED ON THE EFFECTIVE DATE OF THE 1962 STATE STATUTE, AND THEREFORE
THAT IT DID NOT REQUIRE APPROVAL UNDER SEC. 5. 

        III 

I MUST CONFESS THAT I AM SOMEWHAT MYSTIFIED BY THE COURT'S
DISCUSSION OF THE APPROPRIATE REMEDY IN THIS CASE.  FOR THE REASONS SET
OUT IN MY PARTIAL DISSENT IN ALLEN, 398 U.S.,AT 593-594, I WOULD DIRECT
THE HOLDING OF NEW ELECTIONS IF, AND ONLY IF, THE CITY FAILS TO OBTAIN
APPROVAL FROM THE APPROPRIATE FEDERAL OFFICIALS WITHIN A REASONABLE
TIME.  IF SUCH APPROVAL IS FORTHCOMING, I SEE NO JUSTIFICATION FOR
REQUIRING A RERUN OF THE 1969 ELECTIONS.  SEE THE OPINION OF MR.
JUSTICE BLACK, POST, THIS PAGE.  IF THE APPROVAL IS NOT FORTHCOMING,
THE FACT OF VIOLATION OF THE FEDERAL STATUTE, AS INTERPRETED BY THIS
COURT, AND THE POSSIBILITY THAT THE CHANGES HAD A DISCRIMINATORY
PURPOSE OR EFFECT SEEM TO ME TO REQUIRE NEW ELECTIONS IN THE ABSENCE OF
EXCEPTIONAL CIRCUMSTANCES WHICH I CANNOT NOW FORESEE.  IN ANY EVENT,
THE DISTRICT COURT IS ENTITLED TO MORE GUIDANCE ON THIS SCORE THAN THE
COURT PROVIDES.     /1/  THE FACT THAT THE ATTORNEY GENERAL HAS
EXPRESSED HIS OPINION ON THE MERITS OF THE HANDFUL OF BORDER CHANGES
WHICH HAVE BEEN PRESENTED TO HIM, RATHER THAN DISMISSING THEM AS NOT
WITHIN THE SCOPE OF SEC. 5, SEEMS TO ME TO BE ENTITLED TO LITTLE WEIGHT
IN THE FACE OF THE ENORMOUS NUMBER OF ANNEXATIONS WHICH HAVE NOT BEEN
SUBMITTED TO HIM AND WHICH HE HAS DONE NOTHING ABOUT.  IN THE FISCAL
YEAR BEGINNING JULY 1, 1967, THERE WERE OVER 40 MUNICIPAL ANNEXATIONS
IN SOUTH CAROLINA, 1967-1968 REPORT OF THE SECRETARY OF STATE OF SOUTH
CAROLINA 165-166.  NONE OF THESE WERE SUBMITTED FOR APPROVAL OF THE
ATTORNEY GENERAL.  HEARINGS ON VOTING RIGHTS ACT EXTENSION BEFORE
SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 91ST CONG.,
1ST SESS., SER.  3, PP. 310-312 (1969).  THE GEORGIA SESSION LAWS FOR
THE YEARS 1965 TO 1969 REVEAL OVER 100 BOUNDARY CHANGES IN GEORGIA
CITIES.  ONLY ONE WAS SUBMITTED TO THE ATTORNEY GENERAL, AND THAT ONE
ALSO INVOLVED REDRAWING OF WARD LINES.  SO FAR AS THE FACE OF THE
STATUTE, ACT OF MARCH 2, 1966, NO. 235, GA., LAWS 1966, P. 2729,
REVEALS, THE REDRAWING OF WARD LINES MAY HAVE COMPLETELY ALTERED THE
POLITICAL MAP OF THE CITY.  IN THE CASE AT HAND, THE OLD WARD LINES
WERE SIMPLY EXTENDED TO THE NEW CITY LIMITS. 

/2/  ASSUMING THAT THE STATUTE REQUIRES DETERMINATION OF THIS
HYPOTHETICAL FACTUAL QUESTION, I WOULD HAVE THOUGHT THAT IT SHOULD BE
PASSED ON BY THE DISTRICT COURT IN THE FIRST INSTANCE.  THE RECORD IS
SIMPLY TOO SPARSE TO REVEAL WHY THE 1962 STATUTE WAS NOT FOLLOWED IN
1965, OR WHETHER THE SAME CAUSE WOULD HAVE BEEN OPERATIVE A YEAR
EARLIER.  IF THE DEFENDANTS ARE NOT ENTITLED TO PREVAIL ON THE THEORY
THAT THE PLAINTIFFS FAILED TO COME FORWARD WITH ADEQUATE PROOF OF THE
PROCEDURE IN FORCE OR EFFECT IN 1964, THEY ARE AT LEAST ENTITLED TO A
HEARING AT WHICH THEY MAY ADDRESS THEMSELVES TO THE ISSUE. 

MR. JUSTICE BLACK, DISSENTING. 

IN SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301 (1966), THIS COURT
UPHELD THE VOTING RIGHTS ACT OF 1965 AS A LEGITIMATE EXERCISE OF
CONGRESSIONAL POWER TO ENFORCE THE PROVISIONS OF THE FIFTEENTH
AMENDMENT.  I AGREED WITH THE MAJORITY THAT CONGRESS HAD BROAD POWER
UNDER SEC. 2 OF THE FIFTEENTH AMENDMENT TO ENFORCE THE BAN ON RACIAL
DISCRIMINATION IN VOTING.  HOWEVER, I DISSENTED VIGOROUSLY FROM THE
MAJORITY'S CONCLUSION THAT EVERY PART OF SEC. 5 OF THE VOTING RIGHTS
ACT WAS CONSTITUTIONAL.  THE FEARS WHICH PRECIPITATED MY DISSENT IN
KATZENBACH HAVE BEEN FULLY REALIZED IN THIS CASE.  THE MAJORITY,
RELYING ON LATZENBACH, NOW ACTUALLY HOLDS THAT THE CITY OF CANTON,
MISSISSIPPI, A LITTLE TOWN OF 10,000 PERSONS, CANNOT CHANGE FOUR
POLLING PLACES FOR ITS ELECTION OF ALDERMEN WITHOUT FIRST OBTAINING
FEDERAL APPROVAL. 

SUBDIVISION SUBJECT TO THE ACT MAY ADOPT ANY VOTING LAW OR ELECTION
PRACTICE DIFFERENT FROM THAT IN EFFECT ON NOVEMBER 1, 1964, WITHOUT
FIRST GOING ALL THE WAY TO WASHINGTON TO SUBMIT THE PROPOSED CHANGE TO
THE UNITED STATES ATTORNEY GENERAL OR TO OBTAIN FAVORABLE DECLARATORY
JUDGMENT FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA.  /1/  I HAVE STATED MY BELIEF, IN DISSENTS IN KATZENBACH AND
ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544 (1969), THAT THIS
CONSTITUTION BECAUSE IT DEPRIVES A FEW STATES AND THEIR POLITICAL
SUBDIVISIONS OF THE POWER TO MAKE THEIR OWN LAWS AND GOVERN THEMSELVES
WITHOUT ADVANCE FEDERAL APPROVAL.  UNDER OUR CONSTITUTION AS THE
FOUNDING FATHERS DRAFTED IT AND AS THE PEOPLE HAVE ADOPTED AND AMENDED
IT, I BELIEVE THE POWER OF THE STATES TO INITIATE AND ENFORCE THEIR OWN
LAWS CANNOT BE SO EASILY TAKEN AWAY. 

THIS CASE POIGNANTLY DEMONSTRATES THE EXTENT TO WHICH THE FEDERAL
GOVERNMENT HAS USURPED THE FUNCTION OF LOCAL GOVERNMENT FROM THE LOCAL
PEOPLE TO PLACE IT IN THE HANDS OF THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA AND THE UNITED STATES ATTORNEY GENERAL, BOTH
BEING OVER A THOUSAND MILES AWAY FROM CANTON, MISSISSIPPI.  THE LAST
ELECTION FOR ALDERMEN IN THE CITY OF CANTON BEFORE THE ONE HERE IN
ISSUE WAS HELD IN 1965.  IF THE PROCEDURES USED IN THE 1965 ELECTION
HAD BEEN USED IN THE 1969 ELECTION, FOUR OF THE FIVE ALDERMEN WOULD
HAVE BEEN ELECTED FROM WARDS.  IN TWO OF THESE WARDS WHITE VOTERS WERE
IN A MAJORITY AND IN THE OTHER TWO BLACK VOTERS WERE IN A MAJORITY. 
ONE ALDERMAN WOULD HAVE BEEN ELECTED AT LARGE.  THE CITY ADOPTED THREE
CHANGES FOR THE 1969 ELECTIONS.  DETAILED CONSIDERATION OF THESE
CHANGES SHOWS THAT THEY PERTAINED SOLELY TO LOCAL CONCERNS IN WHICH THE
NATIONAL GOVERNMENT HAS NO PROPER INTEREST AND DID NOT INVOLVE RACIAL
DISCRIMINATION. 

POLLING PLACES.-- THE CITY ALTERED FOUR OF THE LOCAL POLLING
PLACES.  TWO WERE MOVED BECAUSE THE OLD POLLING PLACES HAD BEEN LOCATED
ON PRIVATE PROPERTY AND THE OWNERS WOULD NO LONGER CONSENT TO THE USE
OF THEIR PROPERTY FOR VOTING.  I FIND IT INCREDIBLE TO BELIEVE THAT
CONGRESS INTENDED THAT THE PEOPLE OF CANTON WOULD HAVE TO TRAVEL TO
WASHINGTON TO GET THE ATTORNEY GENERAL'S CONSENT TO RENT NEW POLLING
PLACES.  ANOTHER POLLING PLACE HAS MOVED BECAUSE THE OLD ONE DID NOT
HAVE SUFFICIENT SPACE TO ACCOMMODATE VOTING MACHINES.  FINALLY, THE
FOURTH PLACE WAS MOVED FROM A COURTHOUSE TO A PUBLIC SCHOOL TO
ELIMINATE INTERFERENCE WITH COURTROON PROCEEDINGS.  IT IS DIFFICULT FOR
ME TO IMAGAINE A MATTER MORE PECULIARLY AND EXCLUSIVELY FIT FOR LOCAL
DETERMINATION THAN THE LOCATION OF POLLING PLACES FOR THE ELECTION OF
TOWN ALDERMEN.  NOR IS THERE THE SLIGHTEST INDICATION THAT ANY OF THESE
CHANGES WERE MOTIVATED BY OR RESULTED IN RACIAL DISCRIMINATION.  THE
UNITED STATES DISTRICT COURT UNANIMOUSLY AGREED ON UNDISPUTED EVIDENCE
THAT THE APPELLANTS'  ATTACK ON THE CHANGES IN POLLING PLACES HAD "NO
MERIT."  /2/  YET, THE MAJORITY OF THIS COURT HAS NOW DECIDED THAT THE
CITY OF CANTON CANNOT MOVE ITS POLLING PLACES WITHOUT FIRST SUBMITTING
THE PROPOSED CHANGE TO THE POLITICALLY APPOINTED ATTORNEY GENERAL OR A
DISTRICT COURT OVER A THOUSAND MILES AWAY.  PRESUMABLY, THE MAJORITY IS
READY TO HOLD, IF NECESSARY, THAT THE CITY OF CANTON COULD NOT CHANGE
FROM BALLOTS TO VOTING MACHINES WITHOUT OBTAINING SIMILAR FEDERAL
APPROVAL.  I DISSENT FROM ANY SUCH UTTER DEGRADATION OF THE POWER OF
THE STATES TO GOVERN THEIR OWN AFFAIRS. 

BOUNDARY EXTENSIONS.-- THE MAJORITY ALSO FINDS THAT CANTON VIOLATED
THE ACT BY MAKING THREE SEPARATE EXTENSIONS OF THE CITY'S BOUNDARIES
BETWEEN 1965 AND 1969.  THE 1965 EXTENSION OF THE CITY LIMITS ADDED 46
NEGRO VOTERS TO THE VOTER REGISTRATION ROLLS.  THAT ANNEXATION ADDED NO
WHITE VOTERS.  THE 1966 ANNEXATION ADDED 28 BLACK VOTERS AND 187 WHITE
VOTERS.  THE 1968 ANNEXATION ADDED EIGHT BLACK VOTERS AND 144 WHITE
VOTERS.  IN SUM, THE THREE EXTENSIONS ADDED 82 BLACK VOTERS AND 331
WHITE VOTERS.  THESE FIGURES MUST BE VIEWED IN RELATION TO THE VOTING
POPULATION OF THE CITY ON JANUARY 12, 1969, WHEN THERE WERE 2,052 WHITE
VOTERS AND 2,794 NEGRO VOTERS.  /3/  IT IS APPARENT THAT EVEN IF THESE
1969 FIGURES INCLUDED NO VOTERS FROM THE ANNEXED AREAS, THE ADDITIONS
WOULD NOT ALTER THE RACIAL BALANCE OF VOTERS IN CANTON.  MOREOVER, IT
IS UNDISPUTED THAT AT THE TIME OF THE ELECTION IN QUESTION AN ABSOLUTE
MAJORITY OF THE VOTERS IN CANTON WAS BLACK.  FINALLY, THE DISTRICT
COURT FOUND THAT THE ANNEXATIONS WERE NOT PART OF "A STRATAGEM
DELIBERATELY DESIGNED TO OVERTURN A BLACK MAJORITY AT THE MUNICIPAL
POLLS."  /4/ 

IN MY VIEW, THE CONSTITUTION PROHIBITS THE FEDERAL GOVERNMENT FROM
REQUIRING FEDERAL APPROVAL OF STATE LAWS BEFORE THEY CAN BECOME
EFFECTIVE.  PROPOSALS FOR SUCH CONGRESSIONAL VETO POWER OVER STATE LAWS
WERE MADE AT THE CONSTITUTIONAL CONVENTION AND OVERWHELMINGLY
REJECTED.  /5/  THE FOURTEENTH AMENDMENT DID NOT ALTER THE BASIC
STRUCTURE OF OUR FEDERAL SYSTEM OF GOVERNMENT.  THE FOURTEENTH
AMENDMENT DID BAR DISCRIMINATION OF ACCOUNT OF RACE AND DID GIVE THE
FEDERAL GOVERNMENT POWER TO ENFORCE THE BAN ON RACIAL DISCRIMINATION. 
IN THIS CASE THE CONGRESS HAS ATTEMPTED TO ENFORCE THE BAN ON RACIAL
DISCRIMINATION BY REQUIRING THE STATES TO SUBMIT THEIR LAWS OR
PRACTICES TO FEDERAL APPROVAL EVEN BEFORE THEY ARE INITIATED.  IN MY
VIEW THAT REQUIREMENT ATTEMPTS TO ACCOMPLISH THE CONSTITUTIONAL END OF
BANNING RACIAL DISCRIMINATION BY A MEANS-- REQUIRING SUBMISSION OF
PROPOSED STATE LAWS TO THE ATTORNEY GENERAL-- THAT VIOLATES THE LETTER
AND THE SPIRIT OF THE CONSTITUTION.  BUT HERE THE COURT GOES EVEN
FURTHER:  IT PERMITS THE USE OF AN UNCONSTITUTIONAL MEANS IN A CASE
WHERE THE PARTIES HAVE NOT SHOWN RACIAL DISCRIMINATION. 

AT-LARGE ELECTIONS.-- IN 1962, BEFORE CONGRESS ENACTED THE VOTING
RIGHTS ACT OF 1965, MISSISSIPPI PASSED A STATE STATUTE REQUIRING CITIES
TO CONDUCT ALL ELECTIONS FOR ALDERMEN BY HAVING ALL CANDIDATES RUN AT
LARGE.  /6/  FOR SOME REASON NOT REVEALED IN THE RECORD, THE CITY OF
CANTON FAILED TO COMPLY WITH THAT LAW IN THE 1965 ELECTIONS FOR
ALDERMEN.  THE MAJORITY NOW HOLDS THAT BECAUSE CANTON VIOLATED
MISSISSIPPI LAW IN THE 1965 ELECTIONS, THE CITY MUST VIOLATE THE SAME
LAW AGAIN IN FUTURE ELECTIONS UNLESS THE OFFICIALS OF CANTON SECURE
FEDERAL PERMISSION TO ABIDE BY THE ADMITTEDLY VALID LAW OF THEIR
STATE. 

IN MY VIEW CONGRESS DID NOT INTEND AND THE CONSTITUTION DOES NOT
PERMIT SUCH A PERVERSION OF OUR FEDERAL SYSTEM OF GOVERNMENT.  NOR CAN
THE MAJORITY SUPPORT ITS UNPRECEDENTED DECISION ON THE GROUNDS OF
RACIAL DISCRIMINATION.  IT IS BEYOND MY COMPREHENSION HOW THE CHANGE
FROM WARDS TO AN AT-LARGE ELECTION CAN DISCRIMINATE AGAINST NEGROES ON
ACCOUNT OF THEIR RACE IN A CITY THAT HAS AN ABSOLUTE MAJORITY OF NEGRO
VOTERS. 

ONE VICE OF SEC. 5 IS THAT IT ATTEMPTS TO SHORTCUT THE FEDERAL
GOVERNMENT'S JOB IN POLICING RACIAL DISCRIMINATION IN VOTING BY
RADICALLY CURTAILING THE POWER OF CERTAIN STATES TO CONDUCT THEIR OWN
ELECTIONS WHILE LEAVING OTHER STATES WHOLLY FREE OF ANY SUCH
RESTRAINT.  MOREOVER, SEC. 5 IS UNNECESSARY TO THE ENFORCEMENT OF THE
VOTING RIGHTS ACT AND CAN ONLY SERVE TO CAUSE IRRITATION AND PERNICIOUS
DIVISIVENESS IN THOSE STATES TO WHICH IT APPLIES.  WHEN MISSISSIPPI OR
ANY OTHER STATE ABRIDGES THE RIGHTS OF CITIZENS ON ACCOUNT OF RACE, THE
PROPER COURSE FOR THE UNITED STATES IS TO INSTITUTE SUIT IN A FEDERAL
COURT TO HAVE THE DISCRIMINATORY PRACTICE HALTED.  OF COURSE, IN SUCH
PROCEEDINGS, THE STATE STATUTE OR PRACTICE IS PRESUMED VALID, AND IT IS
UP TO THE ATTORNEY GENERAL TO PROVE THAT THE CHALLENGED ACT OR PRACTICE
IS DISCRIMINATORY.  ONLY AFTER DISCRIMINATION HAS BEEN ESTABLISHED DOES
THE FEDERAL GOVERNMENT HAVE THE POWER UNDER THE FOURTEENTH AMENDMENT
AND THE SUPREMACY CLAUSE TO INTERFERE WITH THE STATE'S CONDUCT OF ITS
OWN AFFAIRS. 

THIS ACT ATTEMPTS TO REVERSE THE PROPER ORDER OF THINGS.  NOW THE
CONGRESS PRESUMES-- A PRESUMPTION WHICH THE COURT UPHOLDS-- THAT STATE
STATUTES REGULATING VOTING ARE DISCRIMINATORY AND ENJOINS THEIR
ENFORCEMENT UNTIL THE STATE CAN CONVINCE DISTANT FEDERAL JUDGES OR
POLITICALLY APPOINTED OFFICIALS THAT THE STATUTE IS NOT
DISCRIMINATORY.  THIS PERMITS THE FEDERAL GOVERNMENT TO SUSPEND THE
EFFECTIVENESS OR ENFORCEMENT OF A STATE ACT BEFORE DISCIMINATION IS
PROVED.  BUT I THINK THE FEDERAL GOVERNMENT IS WITHOUT POWER TO SUSPEND
A STATE STATUTE BEFORE DISCRIMINATION IS PROVED.  THE INEVITABLE EFFECT
OF SUCH A REVERSAL OF ROLES IS WHAT HAS HAPPENED IN THIS CASE-- A
NONDISCRIMINATORY STATE PRACTICE OR STATUTE IS VOIDED WHOLLY WITHOUT
CONSTITUTIONAL AUTHORITY. 

EXCEPT AS APPLIED TO A FEW SOUTHERN STATES IN A RENEWED SPIRIT OF
RECONSTRUCTION, THE PEOPLE OF THIS COUNTRY WOULD NEVER STAND FOR SUCH A
PERVERSION OF THE SEPARATION OF AUTHORITY BETHEEN STATE AND FEDERAL
GOVERNMENTS.  NEVER WOULD NEW YORK OR CALIFORNIA BE REQUIRED TO COME
BEGGING TO THE CITY OF WASHINGTON BEFORE IT COULD ENFORCE THE VALID
ENACTMENTS OF ITS OWN LEGISLATURE.  NEVER WOULD THIS LAW HAVE EMERGED
FROM CONGRESSIONAL COMMITTEE HAD IT APPLIED TO THE ENTIRE UNITED
STATES.  OUR PEOPLE ARE MORE JEALOUS OF THEIR OWN LOCAL GOVERNMENTS
THAN TO PERMIT SUCH A BOLD SEIZURE OF THEIR AUTHORITY.  /7/ 

FINALLY, I DISSENT FROM THE REMEDY ADOPTED BY THE COURT.  THE
MAJORITY ADDS INSULT TO INJURY BY REMANDING THIS CASE TO THE DISTRICT
COURT WITH INSTRUCTIONS TO DETERMINE WHETHER CANTON SHOULD BE REQUIRED
TO HOLD A NEW ELECTION.  THIS COURT HAS ALWAYS HERETOFORE BEEN RIGHTLY
HESITANT IN INTERFERING WITH ELECTIONS EVEN FOR THE GROSSEST ABUSES. 
THE MAJORITY NOW DEPARTS FROM OUR MANY PRECEDENTS FOR RESTRAINT IN
ELECTION CASES AND SUGGESTS TO THE DISTRICT COURT THAT IT MAY BE
APPROPRIATE TO INVALIDATE THE 1969 ELECTION AND REQUIRE THE VILLAGE TO
UNDERGO THE GREAT EXPENSE AND TREMENDOUS DISRUPTION OF A NEW ELECTION. 
SUCH A REMAND OF THIS CASE IS INAPPROPRIATE FOR AT LEAST TWO REASONS. 
FIRST, THE MAJORITY'S DECISION IS NOT PREDICATED UPON ANY ACTUAL
DISCRIMINATION AGAINST VOTERS BY THE CITY OF CANTON, BUT MERELY UPON A
FAILURE TO SEEK FEDERAL APPROVAL FOR DE MINIMIS CHANGES IN ITS ELECTION
MACHINERY.  THE MAJORITY DOES NOT PRETEND THAT ANY ACTUAL
DISCRIMINATION HAS BEEN PROVED IN THIS CASE.  CITATIONS TO THE FINDING
OF THE UNITED STATES CIVIL RIGHTS COMMISSION ABOUT PAST INSTANCES OF
RACIAL DISCRIMINATION AND TO STATEMENTS MADE BY CONGRESSMEN WHO
SUPPORTED THE 1965 VOTING RIGHTS ACT DO NOT PROVE DISCRIMINATION IN
THIS CASE.  IN THE ABSENCE OF AFFIRMATIVE PROOF OF RACIAL
DISCRIMINATION, I BELIEVE IT WOULD BE AN ABUSE OF ANY REMEDIAL
DISCRETION THAT MAY BE VESTED IN THE FEDERAL JUDICIARY TO COMPEL CANTON
TO HOLD A NEW ELECTION.  SECOND, I BELIEVE THAT IN REMANDING THIS CASE,
MY BRETHREN ARE NEGLECTING THEIR CONSTITUTIONAL DUTY TO DECIDE AN ISSUE
NECESSARY TO THE FULL DISPOSITION OF THIS CASE.  THIS CASE HAS BEEN IN
LITIGATION SINCE MAY 1969 AND THE ELECTION HAS ALREADY BEEN POSTPONED
ONCE.  BY THE TIME THE MAJORITY'S MANDATE IS ACTED UPON BY THE DISTRICT
COURT AND WE HAVE DISPOSED OF THE JURISDICTIONAL STATEMENT WHICH WILL
INEVITABLY FOLLOW, CANTON'S 1973 ELECTIONS WILL BE JUST AROUND THE
CORNER.  IN THIS POSTURE, TO REQUIRE A NEW ELECTION WOULD NOT BE A
REMEDY FOR A CONSTITUTIONAL OR STATUTORY WRONG BUT A HARSH AND
OPPRESSIVE PUNISHMENT WHOLLY UNWARRANTED BY THE FACTS OF THIS CASE. 
CASE.  MOREOVER, AN ORDER DIRECTING A NEW ELECTION WOULD BE A "SHOTGUN"
SANCTION, DAMAGING ALL OF THE CANDIDATES AND ALL OF THE PEOPLE IN
CANTON.  USELESS CAMPAIGN EXPENSES WOULD HAVE TO BE BORNE BY BOTH WHITE
AND BLACK CANDIDATES.  AND THE TOWN, THROUGH PROPERTY OR SALES TAXES
IMPOSED ON ALL CITIZENS, BLACK OR WHITE, RICH OR POOR, WOULD HAVE TO
COLLECT TAX MONEY TO PAY THE EXPENSES OF A NEW ELECTION.  I NEED NOT
REMIND THE DISTRICT JUDGES BELOW THAT ELECTIONS ARE EXPENSIVE AND THAT
ALL SOUTHERN TOWNS ARE NOT RICH.  I AM CONVINCED THAT IF THE MAJORITY
WERE TO CONFRONT THE ISSUE OF AN APPROPRIATE REMEDY NOW, THE COURT
WOULD NOT VOID THE ELECTION OR COMPEL THE CITY TO HOLD A NEW ELECTION. 
TO THE CONTRARY, THE 1969 ELECTION WOULD BE UPHELD BECAUSE THE ALLEGED
VIOLATIONS OF THE ACT ARE SO VERY MINOR AND SO CLEARLY TECHNICAL.  WE
SHOULD NOT FORGET THAT WHILE IT IS EASY FOR JUDGES TO ORDER NEW
ELECTIONS, IT WILL BE NEITHER EASY NOR INEXPENSIVE FOR THE LITTLE CITY
OF CANTON TO COMPLY WITH SUCH AN ORDER. 

FOR THE REASONS SET OUT ABOVE AND IN MY DISSENTS IN SOUTH CAROLINA
V. KATZENBACH, SUPRA, AND ALLEN V. STATE BOARD OF ELECTIONS, SUPRA, I
UOULD AFFIRM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT.  /8/ 

/1/  VOTING RIGHTS ACT OF 1965, SEC. 5, 42 U.S.C. 1973C (1964 ED.,
SUPP. V). 

/2/  301 F.SUPP.,AT 568. 

/3/  ID., AT 566-567. 

/4/  ID., AT 567. 

/5/  SEE DEBATES IN THE FEDERAL CONVENTION OF 1787 AS REPORTED BY
JAMES MADISON IN DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION
OF AMERICAN STATES 605, 789, 856 (1927). 

/6/  CHAPTER 537 OF THE LAWS OF MISSISSIPPI OF 1962, PROVIDES: 

"ALL ALDERMEN SHALL BE SELECTED BY VOTE OF THE ENTIRE ELECTORATE OF
THE MUNICIPALITY.  THOSE MUNICIPALITIES WHICH DETERMINE TO SELECT ONE
ALDERMAN FROM EACH OF THE FOUR (4) WARDS SHALL SELECT ONE FROM THE
CANDIDATES FOR ALDERMAN FROM EACH PARTICULAR WARD WHO SHALL BE A
RESIDENT OF SAID WARD BY MAJORITY VOTE OF THE ENTIRE ELECTORATE OF THE
MUNICIPALITY." 

A STRONG ARGUMENT CAN BE MADE THAT THIS STATUTE WAS "PROCEDURE WITH
RESPECT TO VOTING . . . IN FORCE OR EFFECT ON NOVEMBER 1, 1964," IN
WHICH CASE THE OFFICIALS OF CANTON WERE PROHIBITED BY THE VOTING RIGHTS
ACT FROM NOT ENFORCING IT ABSENT FEDERAL APPROVAL. 

/7/  SECTION 5 OF THIS ACT AND ITS ENFORECEMENT BY THE COURT IS
REMINISCENT OF TREATMENT ACCORDED THE COLONIES BY THE BRITISH KING. 
SOME OF THE COLONIES' COMPLAINTS OF JULY 4, 1776, WERE: 

"HE HAS REFUSED HIS ASSET TO LAWS, THE MOST WHOLESOME AND NECESSARY
FOR THE PUBLIC GOOD.-- HE HAS FORBIDDEN HIS GOVERNORS TO PASS LAWS OF
IMMEDIATE AND PRESSING IMPORTANCE, UNLESS SUSPENDED IN THEIR OPERATION
TILL HIS ASSENT SHOULD BE OBTAINED; AND WHEN SO SUSPENDED, HE HAS
UTTERLY NEGLECTED TO ATTEND TO THEM.-- HE HAS REFUSED TO PASS OTHER
LAWS FOR THE ACCOMMODATION OF LARGE DISTRICTS OF PEOPLE, UNLESS THOSE
PEOPLE WOULD RELINQUISH THE RIGHT OF REPRESENTATION IN THE LEGISLATURE,
A RIGHT INESTIMABLE TO THEM AND FORMIDABLE TO TYRANTS ONLY.-- HE HAS
CALLED TOGETHER LEGISLATIVE BODIES AT PLACES UNUSUAL, UNCOMFORTABLE,
AND DISTANT FROM THE DEPOSITORY OF THEIR PUBLIC RECORDS, FOR THE SOLE
PURPOSE OF FATIGUING THEM INTO COMPLIANCE WITH HIS MEASURES . . . ." 
DECLARATION OF INDEPENDENCE (JULY 4, 1776). 

/8/  MY BROTHERS THE CHIEF JUSTICE AND MR. JUSTICE BLACKMUN HAVE
STATED THAT "(GIVEN THE DECISION IN ALLEN V. STATE BOARD OF ELECTIONS .
. . (THEY) JOIN IN THE JUDGMENT" OF THE COURT IN THIS CASE.  I HAVE TO
ADMIT THAT I DO NOT PRECISELY UNDERSTAND WHAT THEY MEAN BY "GIVEN
ALLEN."  NEITHER THE CHIEF JUSTICE NOR MR. JUSTICE BLACKMUN WAS A
MEMBER OF THE COURT WHEN ALLEN WAS DECIDED.  THEY ARE CERTAINLY NOT
BOUND BY THE COURT'S PAST MISTAKES IF THEY THINK, AS I DO, THAT ALLEN
WAS A MISTAKE.  YET, I DO NOT UNDERSTAND THAT "GIVEN ALLEN,"
NECESSARILY MEANS THAT THEY NOW AGREE TO WHAT WAS DECIDED IN THAT
CASE.  I BELIEVE THAT ALLEN WAS WRONGLY DECIDED AND WOULD OVERRULE IT
NOW.  MOREOVER, I DO NOT BELIEVE THAT ACCEPTANCE OF THE COURT'S
DECISION IN ALLEN NECESSITATES COMPELLING THE CITY OF CANTON TO SEEK
THE ATTORNEY GENERAL'S CONSENT TO EITHER THE CHANGES IN LOCAL POLLING
PLACES OR THE OTHER CHANGES AT ISSUE IN THIS CASE. 

ARMAND DERFNER ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANTS. 

ROBERT L. GOZA ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE A. F. SUMMER, ATTORNEY GENERAL OF MISSISSIPPI, AND WILLIAM
A. ALLAIN, ASSISTANT ATTORNEY GENERAL. 
..END :














BLOUNT V. RIZZI, 400 U.S. 410 


       BLOUNT, POSTMASTER GENERAL, ET AL. V. RIZZI, DBA THE MAIL

           BOX

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

           DISTRICT OF CALIFORNIA

        NO. 55.  ARGUED NOVEMBER 10, 1970-- DECIDED JANUARY 14,
1971

            /0/ 


TITLE 39 U.S.C. 4006 PERMITS THE POSTMASTER GENERAL TO STAMP AS
"UNLAWFUL" AND RETURN TO THE SENDER LETTERS ADDRESSED TO ANY PERSON AND
TO PROHIBIT THE PAYMENT OF POSTAL MONEY ORDERS TO THAT PERSON IF HE
FINDS, ON "EVIDENCE SATISFACTORY TO (HIM)," THAT THE PERSON IS
OBTAINING OR SEEKING MONEY THROUGH THE MAILS FOR "AN OBSCENE . . .
MATTER" OR IS USING THE MAILS TO DISTRIBUTE INFORMATION ABOUT HOW SUCH
ITEMS MAY BE OBTAINED.  UNDER DEPARTMENTAL REGULATIONS, FOLLOWING
COMPLAINT AND NOTICE OF HEARING, A JUDICIAL OFFICER HOLDS A HEARING AND
RENDERS HIS OPINION "WITH ALL DUE SPEED," FROM WHICH THERE IS AN
ADMINISTRATIVE APPEAL.  SECTION 4007 PERMITS DISTRICT COURTS TO ORDER
THE DEFENDANT'S INCOMING MAIL DETAINED PENDING COMPLETION OF THE SEC.
4006 PROCEEDINGS, UPON A SHOWING OF "PROBABLE CAUSE" TO BELIEVE THAT
SEC. 4006 IS BEING VIOLATED, UNDER THE STANDARDS FIXED BY FED. RULE
CIV. PROC. 65.  IN NO. 55, APPELLEE, A RETIAL MAGAZINE DISTRIBUTOR
AGAINST WHOM THE POSTMASTER GENERAL HAD INSTITUTED A SEC. 4006
PROCEEDING, BROUGHT AN ACTION IN THE DISTRICT COURT SEEKING DECLARATORY
AND INJUNCTIVE RELIEF.  A THREE-JUDGE COURT HELD THE STATUTE
UNCONSTITUTIONAL FOR FAILURE TO MEET THE REQUIREMENTS OF FREEDMAN V.
MARYLAND, 380 U.S. 51, WHICH HELD WITH RESPECT TO A SCHEME OF
ADMINISTRATIVE CENSORSHIP THAT (1) THE CENSOR MUST INITIATE JUDICIAL
REVIEW AND PROVE THAT THE MATERIAL IS UNPROTECTED EXPRESSION; (2)
"PROMPT JUDICIAL REVIEW" IS MANDATORY; AND (3) ANY RESTRAINT BEFORE A
FINAL JUDICIAL DETERMINATION MUST BE LIMITED TO THE SHORTEST, FIXED
PERIOD COMPATIBLE WITH SOUND JUDICIAL RESOLUTION.  IN NO. 58, WHERE THE
POSTMASTER GENERAL APPLIED FOR A SEC. 4007 ORDER, THE DISTRICT COURT,
ON APPELLEE DISTRIBUTOR'S COUNTERCLAIM, HELD SEC. 4006 UNCONSTITUTIONAL
UNDER FREEDMAN V. MARYLAND, SUPRA, AND THAT SEC. 4007'S "PROBABLE
CAUSE" STANDARD WAS CONSTITUTIONALLY INSUFFICIENT TO SUPPORT A
TEMPORARY MAIL DETENTION ORDER.  HELD:  THE ADMINISTRATIVE CENSORSHIP
SCHEME CREATED BY 39 U.S.C. 4006, 4007 VIOLATES THE FIRST AMENDMENT
SINCE IT LACKS ADEQUATE SAFEGUARDS AGAINST UNDUE INHIBITION OF
PROTECTED EXPRESSION.  FREEDMAN V. MARYLAND, SUPRA.  PP. 416-422. 

(A) THE STATUTORY SCHEME DOES NOT REQUIRE GOVERNMENTALLY INITIATED
JUDICIAL PARTICIPATION IN THE PROCEDURE BARRING THE MAGAZINES FROM THE
MAILS OR ASSURING PROMPT JUDICIAL REVIEW.  PP. 417-418. 

(B) THE AUTHORITY GIVEN THE POSTMASTER GENERAL UNDER SEC. 4007 TO
APPLY FOR A COURT ORDER FOR TEMPORARY MAIL DETENTION DOES NOT CURE THE
DEFECTS IN SEC. 4006 SINCE THE PROCEDURE IS ONLY DISCRETIONARY AND THE
REQUIREMENT FOR PROMPT JUDICIAL REVIEW IS NOT SATISFIED BY A "PROBABLE
CAUSE" FINDING.  PP. 419-420. 

(C) SECTION 4007 FAILS TO PROVIDE THAT ANY RESTRAINT PRECEDING A
FINAL JUDICIAL DETERMINATION "BE LIMITED TO PRESERVATION OF THE STATUS
QUO FOR THE SHORTEST FIXED PERIOD COMPATIBLE WITH SOUND JUDICIAL
RESOLUTION."  380 U.S.,AT 59.  PP. 421-422.  NO. 55, 305 F.SUPP.  634;
NO. 58, 306 F.SUPP.  1023, AFFIRMED. 

BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND DOUGLAS, HARLAN, STEWART, WHITE, MARSHALL, AND BLACKMUN, JJ.,
JOINED.  BLACK, J., CONCURRED IN THE RESULT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

NO. 55 (HEREAFTER MAIL BOX) DRAWS INTO QUESTION THE CONSTITUTIONALITY
OF 39 U.S.C. 4006 (NOW 39 U.S.C. 3006, POSTAL REORGANIZATION ACT, /OA/
84 STAT. 747), UNDER WHICH THE POSTMASTER GENERAL, FOLLOWING
ADMINISTRATIVE HEARINGS, MAY HALT USE OF THE MAILS AND OF POSTAL MONEY
ORDERS FOR COMMERCE IN ALLEGEDLY OBSCENE MATERIALS.  NO. 58 (HEREAFTER
BOOK BIN) ALSO DRAWS INTO QUESTION THE CONSITUTIONALITY OF SEC. 4006,
AND, IN ADDITION, THE CONSTITUTIONALITY OF 39 U.S.C. 4007 (NOW 39
U.S.C. 3007), 84 STAT. 748, UNDER WHICH THE POSTMASTER GENERAL MAY
OBTAIN A COURT ORDER PERMITTING HIM TO DETAIN THE DEFENDANT'S INCOMING
MAIL PENDING THE OUTCOME OF SEC. 4006 PROCEEDINGS AGAINST HIM. 

39 U.S.C. 4006 PROVIDES IN PERTINENT PART: 

     "UPON EVIDENCE SATISFACTORY TO THE POSTMASTER GENERAL THAT A

  PERSON IS OBTAINING OR ATTEMPTING TO OBTAIN REMITTANCES OF MONEY

OR PROPERTY OF ANY KIND THROUGH THE MAIL FOR AN OBSCENE . . .

  MATTER . . . , OR IS DEPOSITING OR CAUSING TO BE DEPOSITED IN THE

  UNITED STATES MAIL INFORMATION AS TO WHERE, HOW, OR FROM WHOM THE

  SAME MAY BE OBTAINED, THE POSTMASTER GENERAL MAY-- 

     "(1) DIRECT POSTMASTERS AT THE OFFICE AT WHICH REGISTERED

  LETTERS OR OTHER LETTERS OR MAIL ARRIVE, ADDRESSED TO SUCH A

  PERSON OR TO HIS REPRESENTATIVE, TO RETURN THE REGISTERED LETTERS

  OR OTHER LETTERS OR MAIL TO THE SENDER MARKED 'UNLAWFUL'; AND 

     "(2) FORBID THE PAYMENT BY A POSTMASTER TO SUCH A PERSON OR
HIS

  REPRESENTATIVE OF ANY MONEY ORDER OR POSTAL NOTE DRAWN TO THE

ORDER OF EITHER AND PROVIDE FOR THE RETURN TO THE REMITTERS OF

  THE SUMS NAMED IN THE MONEY ORDERS OR POSTAL NOTES." 

PROCEEDINGS UNDER SEC. 4006 ARE CONDUCTED ACCORDING TO DEPARTMENTAL
REGULATIONS.  A PROCEEDING IS BEGUN BY THE GENERAL COUNSEL OF THE POST
OFFICE DEPARTMENT BY WRITTEN COMPLAINT AND NOTICE OF HEARING.  39 CFR
SECS. 952.5, 952.7, 952.8.  THE JUDICIAL OFFICER OF THE DEPARTMENT
HOLDS A TRIAL-TYPE HEARING AT WHICH A FULL RECORD IS TRANSCRIBED.  HE
RENDERS AN OPINION WHICH INCLUDES FINDINGS OF FACT AND A STATEMENT OF
REASONS.  39 CFR SECS. 925.9-952.25.  THE DECISION IS TO "BE RENDERED
WITH ALL DUE SPEED," 39 CFT 952.24(A), AND THERE IS AN ADMINISTRATIVE
APPEAL.  39 CFR 952.25.  NO SEC. 4006 ORDER MAY ISSUE AGAINST THE
DEFENDANT UNTIL COMPLETION OF THE ADMINISTRATIVE PROCEEDING.  IF,
HOWEVER, THE POSTMASTER GENERAL WISHES TO DETAIN THE DEFENDANT'S
INCOMING MAIL BEFORE THE TERMINATION OF THE SEC. 4006 PROCEEDINGS, HE
MAY APPLY TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT IN WHICH
THE DEFENDANT RESIDES, UNDER 39 U.S.C. 4007, WHICH IN PERTINENT PART
PROVIDES:  /1/ 

     "IN PREPARATION FOR OR DURING THE PENDENCY OF PROCEEDINGS
UNDER

  (SEC. 4006) OF THIS TITLE, THE UNITED STATES DISTRICT COURT IN

  THE DISTRICT IN WHICH THE DEFENDANT RECEIVES HIS MAIL SHALL, UPON

  APPLICATION THEREFOR BY THE POSTMASTER GENERAL AND UPON A SHOWING

  OF PROBABLE CAUSE TO BELIEVE THE STATUTE IS BEING VIOLATED, ENTER

  A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION PURSUANT

  TO RULE 65 OF THE FEDERAL RULES OF CIVIL PROCEDURE DIRECTING THE

  DETENTION OF THE DEFENDANT'S INCOMING MAIL BY THE POSTMASTER

  PENDING THE CONCLUSION OF THE STATUTORY PROCEEDINGS AND ANY

  APPEAL THEREFROM.  THE DISTRICT COURT MAY PROVIDE IN THE ORDER

THAT THE DETAINED MAIL BE OPEN TO EXAMINATION BY THE DEFENDANT

  AND SUCH MAIL BE DELIVERED AS IS CLEARLY NOT CONNECTED WITH THE

  ALLEGED UNLAWFUL ACTIVITY.  AN ACTION TAKEN BY A COURT HEREUNDER

  DOES NOT AFFECT OR DETERMINE ANY FACT AT ISSUE IN THE STATUTORY

  PROCEDDINGS."  /2/ 

IN MIAL BOX, THE POSTMASTER GENERAL BEGAN ADMINISTRATIVE PROCEEDINGS
UNDER SEC. 4006 ON NOVEMBER 1, 1968.  THE ADMINISTRATIVE HEARING WAS
CONCLUDED DECEMBER 5, 1968.  THE JUDICIAL OFFICER FILED HIS DECISION
DECEMBER 31, 1968, FINDING THAT THE SPECIFIED MAGAZINES WERE OBSCENE
AND, THEREFORE, ENTERED A SEC. 4006 ORDER-- 61 DAYS AFTER THE COMPLAINT
WAS FILED.  MAIL BOX FILED A COMPLAINT IN THE UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SEEKING A DECLARATORY
JUDGMENT THAT SEC. 4006 WAS UNCONSTITUTIONAL AND AN INJUNCTION AGAINST
ENFORCEMENT OF THE ADMINISTRATIVE ORDER.  A THREE-JUDGE COURT WAS
CONVENED AND HELD THAT 39 U.S.C. 4006 "IS UNCONSTITUTIONAL ON ITS FACE,
BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF FREEDMAN V. MARYLAND
(1965) 380 U.S. 51 . . . ."  305 F.SUPP.  634, 635 (1969).  THE COURT,
THEREFORE, VACATED THE ADMINISTRATIVE ORDER, DIRECTED THE DELIVERY
"FORTHWITH" OF ALL MAIL ADDRESSED TO MAIL BOX, AND ENJOINED ANY
PROCEEDINGS TO ENFORCE SEC. 4006. 

IN BOOK BIN, THE POSTMASTER GENERAL APPLIED TO THE DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA FOR A SEC. 4007 ORDER PENDING THE
COMPLETION OF SEC. 4006 PROCEEDINGS AGAINST BOOK BIN.  /3/  BOOK BIN
COUNTERCLAIMED, ASSERTING THAT BOTH SECS. 4006 AND 4007 WERE
UNCONSTITUTIONAL AND THAT THEIR ENFORCEMENT SHOULD BE ENJOINED.  A
THREE-JUDGE COURT WAS CONVENED AND HELD BOTH SECTIONS
UNCONSTITUTIONAL.  IT AGREED WITH THE THREE-JUDGE COURT IN MAIL BOX
THAT THE PROCEDURES OF SEC. 4006 WERE FATALLY DEFICIENT UNDER FREEDMAN
V. MARYLAND, 380 U.S. 51 (1965), AND ALSO HELD THAT THE FINDING UNDER
SEC. 4007 MERELY OF "PROBABLE CAUSE" TO BELIEVE MATERIAL WAS OBSCENE
WAS NOT A CONSTITUTIONALLY SUFFICIENT STANDARD TO SUPPORT A TEMPORARY
MAIL DETENTION ORDER.  306 F.SUPP.  1023 (1969). 

WE NOTED PROBABLE JURISDICTION OF THE GOVERNMENT'S APPEALS.  397
U.S. 959, 960 (1970).  WE AFFIRM THE JUDGMENT IN EACH CASE. 

OUR DISCUSSION APPROPRIATELY BEINGS WITH MR. JUSTICE HOLMES'
FREQUENTLY QUOTED ADMONITION THAT, "THE UNITED STATES MAY GIVE UP THE
POST OFFICE WHEN IT SEES FIT, BUT WHILE IT CARRIES IT ON THE USE OF THE
MAILS IS ALMOST AS MUCH A PART OF FREE SPEECH AS THE RIGHT TO USE OUR
TONGUES . . . ."  MILWAUKEE SOCIAL DEMOCRATIC PUB. CO., V. BURLESON,
255 U.S. 407, 437 (1921) (DISSENTING OPINION); SEE ALSO LAMONT V.
POSTMASTER GENERAL, 381 U.S. 301 (1965).  SINCE SEC. 4006 ON ITS FACE,
AND SEC. 4007 AS APPLIED, ARE PROCEDURES DESIGNED TO DENY USE OF THE
MAILS TO COMMERCIAL DISTRIBUTORS OF OBSCENE LITERATURE, THOSE
PROCEDURES VIOLATE THE FIRST AMENDMENT UNLESS THEY INCLUDE BUILT-IN
SAFEGUARDS AGAINST CURTAILMENT OF CONSTITUTIONALLY PROTECTED
EXPRESSION, FOR GOVERNMENT "IS NOT FREE TO ADOPT WHATEVER PROCEDURES IT
PLEASES FOR DEALING WITH OBSCENITY . . . WITHOUT REGARD TO THE POSSIBLE
CONSEQUENCES FOR CONSTITUTIONALLY PROTECTED SPEECH."  MARCUS V. SEARCH
WARRANT, 367 U.S. 717, 731 (1961).  RATHER, THE FIRST AMENDMENT
REQUIRES THAT PROCEDURES BE INCORPORATED THAT "ENSURE AGAINST THE
CURTAILMENT OF CONSTITUTIONALLY PROTECTED EXPRESSION, WHICH IS OFTEN
SEPARATED FROM OBSCENITY ONLY BY A DIM AND UNCERTAIN LINE . . . OUR
INSISTENCE THAT REGULATIONS OF OBSCENITY SCRUPULOUSLY EMBODY THE MOST
RIGOROUS PROCEDURAL SAFEGARDS . . . IS . . . BUT A SPECIAL INSTANCE OF
THE LARGER PRINCIPLE THAT THE FREEDOMS OF EXPRESSION MUST BE RINGED
ABOUT WITH ADEQUATE BULWARKS . . . ."  BANTAM BOOKS, INC. V. SULLIVAN,
372 U.S. 58, 66 (1963).  SINCE WE HAVE RECOGNIZED THAT "THE LINE
BETWEEN SPEECH UNCONDITIONALLY GUARANTEED AND SPEECH WHICH MAY
LEGITIMATELY BE REGULATED . . . IS FINELY DRAWN . . . (THE SEPARATION
OF LEGITIMATE FROM ILLEGITIMATE SPEECH CALLS FOR . . . SENSITIVE TOOLS
. . . ."  SPEISER V. RANDALL, 375 U.S. 513, 525 (1958). 

THE PROCEDURE ESTABLISHED BY SEC. 4006 AND THE IMPLEMENTING
REGULATIONS OMIT THOSE "SENSITIVE TOOLS" ESSENTIAL TO SATISFY THE
REQUIREMENTS OF THE FIRST AMENDMENT.  THE THREE-JUDGE COURTS CORRECTLY
HELD IN THESE CASES THAT OUR DECISION IN FREEDMAN V. MARYLAND, 380 U.S.
51 (1965) COMPELS THIS CONCLUSION.  WE THERE CONSIDERED THE
CONSTITUTIONALITY OF A MOTION PICTURE CENSORSHIP PROCEDURE ADMINISTERED
BY A STATE BOARD OF CENSORS.  WE HELD THAT TO AVOID CONSTITUTIONAL
INFIRMITY A SCHEME OF ADMINISTRATIVE CENSORSHIP MUST:  PLACE THE
BURDENS OF INITIATING JUDICIAL REVIEW AND OF PROVING THAT THE MATERIAL
IS UNPROTECTED EXPRESSION ON THE CENSOR; REQUIRE "PROMPT JUDICIAL
REVIEW"-- A FINAL JUDICIAL DETERMINATION ON THE MERITS WITHIN A
SPECIFIED, BRIEF PERIOD-- TO PREVENT THE ADMINISTRATIVE DECISION OF THE
CENSOR FROM ACHIEVING AN EFFECT OF FINALITY; AND LIMIT TO PRESERVATION
OF THE STATUS QUO FOR THE SHORTEST, FIXED PERIOD COMPATIBLE WITH SOUND
JUDICIAL RESOLUTION, ANY RESTRAINT IMPOSED IN ADVANCE OF THE FINAL
JUDICIAL DETERMINATION.  380 U.S.,AT 58-60. 

THESE SAFEGUARDS ARE LACKING IN THE ADMINISTRATIVE CENSORSHIP SCHEME
CREATED BY SECS. 4006, 4007, AND THE REGULATIONS.  /4/ 

THE SCHEME HAS NO STATUTORY PROVISION REQUIRING GOVERNMENTALLY
INITIATED JUDICIAL PARTICIPATION IN THE PROCEDURE WHICH BARS THE
MAGAZINES FROM THE MAILS, OR EVEN ANY PROVISION ASSURING PROMPT
JUDICIAL REVIEW.  THE SCHEME DOES DIFFER FROM THE MARYLAND SCHEME
INVOLVED IN FREEDMAN IN THAT UNDER THE MARYLAND SCHEME THE MOTION
PICTURE COULD NOT BE EXHIBITED PENDING CONCLUSION OF THE ADMINISTRATIVE
HEARING, WHEREAS UNDER SEC. 4006 THE ORDER TO RETURN MAIL OR TO REFUSE
TO PAY MONEY ORDERS IS NOT IMPOSED UNTIL THERE HAS BEEN AN
ADMINISTRATIVE DETERMINATION THAT THE MAGAZINES ARE OBSCENE.  THIS,
HOWEVER, DOES NOT REDRESS THE FATAL FLAW OF THE PROCEDURE IN FAILING TO
REQUIRE THAT THE POSTMASTER GENERAL SEEK TO OBTAIN A PROMPT JUDICIAL
DETERMINATION OF THE OBSCENITY OF THE MATERIAL; RATHER, ONCE THE
ADMINISTRATIVE PROCEEDINGS DISAPPROVE THE MAGAZINES THE DISTRIBUTOR
"MUST ASSUME THE BURDEN OF INSTITUTING JUDICIAL PROCEEDINGS AND OF
PERSUADING THE COURTS THAT THE . . .(MAGAZINES ARE) PROTECTED
EXPRESSION."  380 U.S.,AT 59-60.  THE FIRST AMENDMENT DEMANDS THAT THE
GOVERNMENT MUST ASSUME THIS BURDEN.  "THE TEACHING OF OUR CASES IS
THAT, BECAUSE ONLY A JUDICIAL DETERMINATION IN AN ADVERSARY PROCEEDING
ENSURES THE NECESSARY SENSITIVITY TO FREEDOM OF EXPRESSION, ONLY A
PROCEDURE REQUIRING A JUDICIAL DETERMINATION SUFFICES TO IMPOSE A VALID
FINAL RESTRAINT."  380 U.S.,AT 58.  /5/ 

MOREOVER, ONCE A SEC. 4006 ADMINISTRATIVE ORDER HAS BEEN ENTERED
AGAINST THE DISTRIBUTOR, THERE BEING NO PROVISION FOR JUDICIAL REVIEW,
THE POSTMASTER MAY STAMP AS "UNLAWFUL" AND IMMEDIATELY RETURN TO THE
SENDER ORDERS FOR PURCHASE OF THE MAGAZINES ADDRESSED TO THE
DISTRIBUTOR, AND PROHIBIT THE PAYMENT OF POSTAL MONEY ORDERS TO HIM. 
SUCH A SCHEME "PRESENTS PECULIAR DANGERS TO CONSTITUTIONALLY PROTECTED
SPEECH . . . BECAUSE THE CONSOR'S BUSINESS IS TO CENSOR, THERE INHERES
THE DANGER THAT HE MAY WELL BE LESS RESPONSIVE THAN A COURT-- PART OF
AN INDEPENDENT BRANCH OF GOVERNMENT-- TO THE CONSTITUTIONALLY PROTECTED
INTERESTS IN FREE EXPRESSION.  AND IF IT IS MADE UNDULY ONEROUS, BY
REASON OF DELAY OR OTHERWISE, TO SEEK JUDICIAL REVIEW, THE CENSOR'S
DETERMINATION MAY IN PRACTICE BE FINAL."  380 U.S.,AT 57-58." 
APPELLANTS SUGGEST THAT WE AVOID THE CONSTITUTIONAL QUESTION RAISED BY
THE FAILURE OF SEC. 4006 TO PROVIDE THAT THE GOVERNMENT SEEK A PROMPT
JUDICIAL DETERMINATION BY CONSTRUING THAT SECTION TO DENY THE
ADMINISTRATIVE ORDER ANY EFFECT WHATEVER, IF JUDICIAL REVIEW IS SOUGHT
BY THE DISTRIBUTOR, UNTIL THE COMPLETION OF THAT REVIEW.  APART FROM
THE FACT THAT THIS SUGGESTION NEITHER REQUIRES THAT THE APPELLANTS
INITIATE JUDICIAL PROCEEDINGS, NOR PROVIDES FOR A PROMPT JUDICIAL
DETERMINATION, IT IS FOR CONGRESS, NOT THIS COURT, TO REWRITE THE
STATUTE. 

THE AUTHORITY OF THE POSTMASTER GENERAL UNDER SEC. 4007 TO APPLY TO
A DISTRICT COURT FOR AN ORDER DIRECTING THE DETENTION OF THE
DISTRIBUTOR'S INCOMING MAIL PENDING THE CONCLUSION OF THE SEC. 4006
ADMINISTRATIVE PROCEEDINGS AND ANY APPEAL THEREFROM PLAINLY DOES NOT
REMEDY THE DEFECTS IN SEC. 4006.  THAT SECTION DOES NOT PROVIDE A
PROMPT PROCEEDING FOR A JUDICIAL ADJUDICATION OF THE CHALLENGED
OBSCENITY OF THE MAGAZINE.  /7/  FIRST, IT IS ENTIRELY DISCRETIONARY
WITH THE ATTORNEY GENERAL WHETHER TO INSTITUTE A SEC. 4007 ACTION AND,
THEREFORE, THE SECTION DOES NOT SATISFY THE REQUIREMENT THAT THE
APPELLANTS ASSUME THE BURDEN OF SEEKING A JUDICIAL DETERMINATION OF THE
ALLEGED OBSCENITY OF THE MAGAZINES.  SECOND, THE DISTRICT COURT IS
REQUIRED TO GRANT THE RELIEF SOUGHT BY THE POSTMASTER GENERAL UPON A
SHOWING MERELY OF "PROBABLE CAUSE" TO BELIEVE SEC. 4006 IS BEING
VIOLATED.  WE AGREE WITH THE THREE-JUDGE COURT IN BOOK BIN THAT TO
SATISFY THE DEMAND OF THE FIRST AMENDMENT "IT IS VITAL THAT PROMPT
JUDICIAL REVIEW ON THE ISSUE OF OBSCENITY-- RATHER THAN MERELY PROBABLE
CAUSE-- BE ASSURED ON THE GOVERNMENT'S INITIATIVE BEFORE THE SEVERE
RESTRICTIONS IN SECS. 4006, 4007, ARE INVOKED."  306 F.SUPP.,AT 1028. 
INDEED, THE STATUTE EXPRESSLY PROVIDES THAT, "AN ACTION TAKEN BY A
COURT HEREUNDER DOES NOT AFFECT OR DETERMINE ANY FACT AT ISSUE IN THE
STATUTORY PROCEEDINGS."  /8/ 

MOREOVER, SEC. 4007 DOES NOT IN ANY EVENT ITSELF MEET THE REQUISITES
OF THE FIRST AMENDMENT.  ANY ORDER ISSUED BY THE DISTRICT COURT REMAINS
IN EFFECT "PENDING THE CONCLUSION OF THE STATUTORY PROCEEDINGS AND ANY
APPEAL THEREFROM."  /9/  THUS, THE STATUTE NOT ONLY FAILS TO PROVIDE
THAT THE DISTRICT COURT SHOULD MAKE A FINAL JUDICIAL DETERMINATION OF
THE QUESTION OF OBSCENTIY, EXPRESSLY GIVING THAT AUTHORITY TO THE
JUDICIAL OFFICER, BUT IT FAILS TO PROVIDE THAT "(ANY RESTRAINT IMPOSED
IN ADVANCE OF A FINAL JUDICIAL DETERMINATION ON THE MERITS MUST . . .
BE LIMITED TO PRESERVATION OF THE STATUS QUO FOR THE SHORTEST FIXED
PERIOD COMPATIBLE WITH SOUND JUDICIAL RESOLUTION."  380 U.S.,AT 59. 
THE APPELLEES HERE NOT ONLY WERE NOT AFFORDED "PROMPT JUDICIAL REVIEW"
BUT THEY "CAN ONLY GET FULL JUDICIAL REVIEW ON THE QUESTION OF
OBSCENITY-- BY WHICH THE POSTMASTER WOULD BE ACTUALLY BOUND-- AFTER
LENGTHY ADMINISTRATIVE PROCEEDINGS, AND THEN ONLY BY (THEIR) OWN
INITIATIVE.  DURING THE INTERIM, THE PROLONGED THREAT OF AN ADVERSE
ADMINISTRATIVE) DECISION IN SEC. 4006 OR THE REALITY OF A SWEEPING SEC.
4007 ORDER, WILL HAVE A SEVERE RESTRICTION ON THE EXERCISE OF
(APPELLEES') FIRST AMENDMENT RIGHTS-- ALL WITHOUT A FINAL JUDICIAL
DETERMINATION OF OBSCENTIY."  306 F.SUPP.,AT 1028. 

THE JUDGMENTS OF THE THREE-JUDGE COURTS IN NOS. 55 AND 58 ARE

              AFFIRMED. 

/0/  TOGETHER WITH NO. 58, UNITED STATES ETAL.  V. THE BOOK BIN, ON
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF GEORGIA. 

/OA/  THE CODIFICATION OF THE ACT WILL APPEAR IN THE 1970 EDITION OF
THE UNITED STATES CODE.  THIS OPINION TREATS THE OLD CODE SECTIONS AS
CURRENT. 

/1/  SECTION 4006 WAS ENACTED IN 1950.  64 STAT. 451.  IN 1956 THE
POSTMASTER GENERAL SOUGHT AND OBTAINED THE POWER HIMSELF TO ENTER AN
ORDER, PENDING ADMINISTRATIVE PROCEEDINGS UNDER SEC. 4006, THAT ALL
MAIL ADDRESSED TO THE DEFENDANT IN THE SEC. 4006 PROCEEDING BE
IMPOUNDED.  THE ORDER WAS TO EXPIRE AT THE END OF 20 DAYS UNLESS THE
POSTMASTER GENERAL SOUGHT IN A FEDERAL DISTRICT COURT, AN ORDER
CONTINUING THE IMPOUNDING.  70 STAT. 699.  IN 1959, EXTENSIVE HEARINGS
WERE HELD IN THE HOUSE ON THE POST OFFICE'S REQUEST THAT THE 20-DAY
PERIOD BE EXTENDED TO 45 DAYS, AND THAT THE STANDARD OF NECESSITY BE
CHANGED TO "PUBLIC INTEREST."  HEARINGS ON OBSCENE MATTER SENT THROUGH
THE MAIL BEFORE THE SUBCOMMITTEE ON POSTAL OPERATIONS OF THE HOUSE
COMMITTEE ON POST OFFICE AND CIVIL SERVICE, 86TH CONG., 1ST SESS.,
PTS.  1, 2, AND 3 (1959); HEARINGS ON DETENTION OF MAIL FOR TEMPORARY
PERIODS BEFORE THE HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, 86
CONG., 1ST SESS. (1959).  INSTEAD, CONGRESS ENACTED SEC. 4007 WHICH
STRIPPED THE POSTMASTER GENERAL OF HIS POWER TO ISSUE AN INTERIM ORDER
FOR ANY PERIOD, AND DIRECTED HIM TO SEEK SUCH AN ORDER IN A FEDERAL
DISTRICT COURT.  ONE SENATE REPORT EXPRESSED MISGIVINGS WHEN THE
POSTMASTER GENERAL HAD ORIGINALLY SOUGHT THE IMPOUNDING POWER:  "THE
COMMITTEE RECOGNIZES THAT EVEN IN ITS PRESENT FORM THE BILL GIVES THE
POSTMASTER GENERAL EXTRAORDINARY AND SUMMARY POWERS TO IMPOSE A
SUBSTANTIAL PENALTY BY IMPOUNDING A PERSON'S MAIL FOR UP TO 20 DAYS IN
ADVANCE OF ANY HEARING OR ANY REVIEW BY THE COURTS.  SUCH POWER IS
DIRECTLY CONTRARY TO THE LETTER AND SPIRIT OF NORMAL DUE PROCESS, AS
EXEMPLIFIED BY THE ADMINISTRATIVE PROCEDURE ACT, WHICH REQUIRES A
HEARING BEFORE ANY PENALTY MAY BE IMPOSED.  THE POST OFFICE DEPARTMENT
HAS MADE ITS CASE FOR THIS LEGISLATION ON THE GROUNDS THAT A TEMPORARY
AND SUMMARY PROCEDURE IS REQUIRED TO DEAL WITH FLY-BY-NIGHT OPERATORS
USING THE MAILS TO DEFRAUD OR TO PEDDLE PORNOGRAPHY, WHO MAY GO OUT OF
BUSINESS-- OR CHANGE THE NAME OF THEIR BUSINESS OR THEIR BUSINESS
ADDRESS-- BEFORE NORMAL LEGAL PROCEDURES CAN BE BROUGHT INTO
OPERATION.  THE POST OFFICE DEPARTMENT HAS NOT RECOMMENDED, NOR DOES
THIS COMMITTEE APPROVE, THE USE OF THE TEMPORARY IMPOUNDING PROCEDURE
UNDER THIS BILL AS A SUBSTITUTE FOR THE NORMAL PRACTICE OF AN ADVANCE
HEARING OR THE BRINGING OF AN INDICTMENT FOR VIOLATION OF THE CRIMINAL
CODE IN ALL CASES INVOLVING LEGITIMATE AND WELL-ESTABLISHED BUSINESS
OPERATIONS.  THE COMMITTEE WOULD NOT APPROVE THE USE OF THE
EXTRAORDINARY SUMMARY PROCEDURE UNDER THE BILL AGATNST LEGITIMATE
PUBLISHERS OF NEWSPAPERS, MAGAZINES, OR BOOKS IN CASES IN WHICH A
POSTMASTER GENERAL MIGHT TAKE OBJECTION TO AN ARTICLE, AN ISSUE, OR A
VOLUME."  S. REP. NO. 2234, 84TH CONG., 2D SESS., 2-3 (1956). 

/2/  SECTION 4007 ALSO AUTHORIZES THE POSTMASTER GENERAL TO APPLY
FOR AN IMPOUNDING ORDER DURING THE PENDENCY OF PROCEEDINGS UNDER 39
U.S.C. 4005 (1964 ED., SUPP. V), NOW SEC. 3005.  SECTION 4005, AS
AMENDED (82 STAT. 1153), PERMITS THE RETURN TO THE SENDER OF ANY MAIL
SENT TO THE PERPETRATOR OF WHAT THE POSTMASTER GENERAL FINDS TO BE A
SCHEME FOR OBTAINING MONEY BY MEANS OF FALSE REPRESENTATIONS.  THAT
READ MAGAZINE, 333 U.S. 178 (1948).  THE GOVERNMENT DOES NOT ARGUE IN
ITS BRIEF THAT DONALDSON COMPELS THE CONCLUSION THAT SEC. 4006 ALSO IS
CONSTITUTIONAL BUT ONLY THAT "SECTION 4006, LIKE THE FRAUD STATUTE
UPHELD IN DONALDSON . . . MEETS ALL NECESSARY CONSTITUTIONAL
STANDARDS."  BRIEF FOR APPELLANTS 20.  ON ORAL ARGUMENT, THE GOVERNMENT
SUGGESTED THAT AN AFFIRMANCE IN THIS CASE MIGHT JEOPARDIZE THE VALIDITY
OF SEC. 4005 AND THE CONTINUED VITALITY OF DONALDSON.  BUT NO ARGUMENT
WAS OFFERED TO SUPPORT THE SUGGESTION. 

/3/  THE ORDER WAS SOUGHT WITH RESPECT TO A SINGLE ISSUE OF ONE
MAGAZINE. 

/4/  WE THEREFORE HAVE NO OCCASION TO CONSIDER THE ARGUMENT OF
APPELLEES THAT STANLEY V. GEORGIA, 394 U.S. 557 (1969), PRESUPPOSES
THAT AN INDIVIDUAL HAS A CONSTITUTIONAL RIGHT TO OBTAIN POSSESSION OF
THE CHALLENGED MATERIALS BY DELIVERY THROUGH THE MAIL. 

/5/  IN 1962, THREE JUSTICES OF THE COURT STATED:  "(WE HAVE) . . .
NO DOUBT THAT CONGRESS COULD CONSTITUTIONALLY AUTHORIZE A NONCRIMINAL
PROCESS IN THE NATURE OF A JUDICIAL PROCEEDING UNDER CLOSELY DEFINED
PROCEDURAL SAFEGUARDS.  BUT THE SUGGESTION THAT CONGRESS MAY
CONSTITUTIONALLY AUTHORIZE ANY PROCESS OTHER THAN A FULLY JUDICIAL ONE
IMMEDIATELY RAISES THE GRAVEST DOUBTS."  MANUAL ENTERPRISES V. DAY, 370
U.S. 478, 518-519 (1962) (OPINION OF BRENNAN, J.). 

/6/  THE JUDICIAL OFFICER IS APPOINTED BY THE POSTMASTER GENERAL TO
"PERFORM SUCH QUASI-JUDICIAL DUTIES AS THE POSTMASTER GENERAL MAY
DESIGNATE."  39 U.S.C. 308A.  HE FUNCTIONS AS HEARING EXAMINER IN MAY
PROCEEDINGS IN ADDITION TO THOSE UNDER SEC. 4006.  THE APPELLANTS ARGUE
THAT THE JUDICIAL OFFICER ENJOYS "MANY OF THE INSULATIONS THAT JUDGES
ENJOY."  WHAT THE CONSTITUTION REQUIRES, HOWEVER, IS THAT A NONCRIMINAL
CENSORING PROCESS REQUIRE GOVERNMENTALLY INITIATED FULL JUDICIAL
PARTICIPATION.  CLEARLY, SEC. 4006 DOES NOT SO PROVIDE. 

/7/  THE COURT SAID IN FREEDMAN V. MARYLAND THAT THE PROCEDURE
CONSIDERED IN KINGSLEY BOOKS, INC. V. BROWN, 354 U.S. 436 (1957),
PROVIDES "A MODEL . . . (OF AN) . . . INJUNCTIVE PROCEDURE DESIGNED TO
PREVENT THE SALE OF OBSCENE BOOKS."  380 U.S.,AT 60. 

/8/  THIS PROVISION WAS ADDED AT THE REQUEST OF POSTMASTER GENERAL
SUMMERFIELD WHO DESIRED IT EXPRESSLY TO FORESTALL JUDICIAL REVIEW
PENDING COMPLETION OF THE ADMINISTRATIVE PROCEEDING.  "THIS WOULD
GUARANTEE THAT COUNSEL FOR A MAILER WILL NOT BE ABLE TO RAISE
SUCCESSFULLY A BAR TO ALL FURTHER ADMINISTRATIVE PROCEEDINGS IN A CASE
IN WHICH THE GOVERNMENT FAILED TO PREVAIL ON ITS MOTION FOR A
PRELIMINARY INJUNCTION."  LETTER FROM ARTHUR E. SUMMERFIELD, POSTMASTER
GENERAL, TO SENATOR OLIN D. JOHNSTON, CHAIRMAN, SENATE COMMITTEE ON
POST OFFICE AND CIVIL SERVICE, U.S.C. CONG. & ADMIN. NEWS, 86TH CONG.,
2D SESS. 3249 (1960).  IN 1959, POSTMASTER GENERAL SUMMERFIELD HAD
TESTIFIED: 

"IN SPITE OF THE FRUSTRATIONS AND THE LEGAL COMPLICATIONS, AND EVEN
THE COURT DECISIONS (WHICH THE POSTMASTER GENERAL HAD DESCRIBED AS
HANDING DOWN 'THE VERY BROAD DEFINITION OF OBSCENITY'), I FEEL A
RESPONSIBILITY TO THE PUBLIC TO ATTEMPT TO PREVENT THE USE OF THE MAILS
FOR INDECENT MATERIAL, AND TO SEEK INDICTMENTS AND PROSECUTIONS FOR
SUCH OFFENSES, EVEN THOUGH IT MAY BE ARGUED THAT IT FALLS IN THE
CATEGORY OF MATERIAL CONCERNING WHICH THERE HAVE BEEN PREVIOUS RULINGS
FAVORABLE TO THE PROMOTERS."  HEARING ON OBSCENE MATTER SENT THROUGH
THE MAIL BEFORE THE SUBCOMMITTEE ON POSTAL OPERATIONS OF THE HOUSE
COMMITTEE ON POST OFFICE AND CIVIL SERVICE, 86TH CONG., 1ST SESS., PT.
1, . 6 (1959). 

/9/  APPELLANTS POINT OUT THAT ORDERS UNDER SECS. 4006 AND 4007
GENERALLY ALLOW THE ADDRESSEE TO OPEN HIS MAIL AT THE POST OFFICE AND
RECEIVE ANY FIRST CLASS MAIL DEMONSTRATED CLEARLY NOT TO BE CONNECTED
WITH THE ALLEGEDLY UNLAWFUL USE.  THIS PROVISION IS PROVIDED IN LIGHT
OF 39 U.S.C. 4057 WHICH PROVIDES THAT "(ONLY AN EMPOYEE OPENING DEAD
MAIL BY AUTHORITY OF THE POSTMASTER GENERAL, OR A PERSON HOLDING A
SEARCH WARRANT AUTHORIZED BY LAW MAY OPEN ANY LETTER OR PARCEL OF THE
FIRST CLASS WHICH IS IN THE CUSTODY OF THE DEPARTMENT."  SEE ALSO 39
CFR 117.1.  BUT, QUERY WHETHER SUCH PROVISION OF THE ORDER REQUIRES AN
"OFFICIAL ACT," VIZ., EXAMINING THE MAIL, WHICH CONSTITUTES AN
UNCONSTITUIONAL LIMITATION ON THE ADDRESSEE'S FIRST AMENDMENT RIGHTS. 
LAMONT V. POSTMASTER GENERAL, 381 U.S. 301 (1965). 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

PETER L. STAUSS ARGUED THE CASUE FOR APPELLANTS IN BOTH CASES.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL RUCKELSHAUS, ROBERT V. ZENER, DONALD L. HOROWITZ, DAVID NELSON,
AND CHARLES D. HAWLEY. 

STANLEY FLEISHMAN ARGUED THE CAUSE FOR APPELLEE IN NO. 55.  WITH HIM
ON THE BRIEF WAS SAN ROSEWEIN.  ROBERT EUGENE SMITH ARGUED THE CAUSE
FOR APPELLEE IN NO. 58.  WITH HIM ON THE BRIEF WAS HUGH W. GIBERT. 
..END :

















U.S. BULK CARRIERS V. ARGUELLES, 400 U.S. 351 


       U.S. BULK CARRIERS, INC. V. ARGUELLES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

       FOURTH CIRCUIT

        NO. 29.  ARGUED NOVEMBER 12, 1970-- DECIDED JANUARY 13,

           1971 


THE ENACTMENT OF SEC. 301 OF THE LABOR MANAGEMENT RELATIONS ACT,
WHICH PROVIDES FOR THE ENFORCEMENT OF GRIEVANCE AND ARBITRATION
PROVISIONS OF COLLECTIVE-BARGAINING AGREEMENTS IN INDUSTRIES AFFECTING
COMMERCE, DID NOT ABROGATE, BUT MERELY ADDED AN OPTIONAL REMEDY TO, THE
REMEDY OF 46 U.S.C. 596, WHICH PERMITS SEAMEN TO SUE TO WAGES IN
FEDERAL COURT.  PP. 352-538. 

408 F.2D 1065, AFFIRMED. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.
J., AND BLACK, HARLAN, AND BLACKMUN, JJ., JOINED.  BLACK, J., FILED A
CONCURRING STATEMENT, POST, P. 358.  HARLAN, J., FILED A CONCURRING
OPINION, POST, P. 358.  WHITE, J., FILED A DISSENTING OPINION, IN WHICH
BRENNAN, STEWART, AND MARSHALL, JJ., JOINED, POST, P. 366. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR SEAMAN'S WAGES ACCRUING FROM SERVICES RENDERED IN
FOREIGN COMMERCE.  FEDERAL JURISDICTION WAS CLAIMED UNDER 28 U.S.C.
1333 WHICH GRANTS EXCLUSIVE JURISDICTION TO THE DISTRICT COURTS IN ANY
"ADMIRALTY OR MARITIME" CASE.  A COLLECTIVE-BARGAINING AGREEMENT
CONTAINED PROVISIONS CONCERNING WAGES PAYABLE WHEN SEAMEN WERE
DISMISSED OR WHEN THEIR EMPLOYMENT WAS TERMINATED; AND IT PROVIDED A
GRIEVANCE PROCEDURE AND FOR ARBITRATION OF DISPUTED CLAIMS.  THOSE
PROCEDURES WERE NOT PURSUED BY THE SEAMAN.  HE SUED IN THE FEDERAL
COURT INSTEAD. 

THE DISTRICT COURT GRANTED THE EMPLOYER'S MOTION FOR SUMMARY
JUDGMENT, RULING THAT THE PRINCIPLES WE ANNOUNCED IN A SERIES OF
DECISIONS STARTING WITH TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448,
AND EXTENDING TO REPUBLIC STEEL CORP. V. MODDOX, 379 U.S. 65 , GOVERNED
THIS MARITIME CASE AND THAT THE FEDERAL COURT HAD NO JURISDICTION TO
ADJUDICATE THE MARITIME CLAIM BUT ONLY TO ENFORCE THE GRIEVANCE
PROCEDURE OR AN ARBITRATION AWARD THAT MIGHT BE GIVEN.  THE COURT OF
APPEALS REVERSED BY A DIVIDED VOTE, 408 F.2D 1065, AND WE GRANTED
CERTIORARI, 398 U.S. 957. 

THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 136, PROVIDES A
FEDERAL REMEDY TO ENFORCE GRIEVANCE AND ARBITRATION PROVISIONS OF
COLLECTIVE-BARGAINING AGREEMENTS IN AN INDUSTRY "AFFECTING COMMERCE,"
SEC. 301(A), 29 U.S.C. 185(A); AND IT IS CLEAR THAT "COMMERCE" INCLUDES
FOREIGN COMMERCE.  29 U.S.C. 152(6).  IT IS ALSO CLEAR THAT THIS
EMPLOYEE'S BASIC WAGE AND THE OVERTIME RATE OF PAY WERE FIXED OR
DETERMINABLE BY THE COLLECTIVE-BARGAINING AGREEMENT.  AND IT IS
GENERALLY TRUE, AS STATED IN VACA V. SIPES, 386 U.S. 171, 184, THAT
WHEN THE EMPLOYEE'S CLAIM "IS BASED UPON BREACH OF THE COLLECTIVE
BARGAINING AGREEMENT, HE IS BOUND BY TERMS OF THAT AGREEMENT WHICH
GOVERN THE MANNER IN WHICH CONTRACTUAL RIGHTS MAY BE ENFORCED." 

THE QUESTION HERE IS NOT THE CONTINUING VALIDITY OF LINCOLN MILLS
AND ITS PROGENY.  THE QUESTION IS A DISTINCTLY DIFFERENT ONE, AND THAT
IS WHETHER THE EARLIER, EXPRESS, AND ALTERNATIVE METHOD OF COLLECTING
SEAMEN'S WAGES CONTAINED IN 46 U.S.C. 596 HAS BEEN DISPLACED BY SEC.
301 OF THE LABOR MANAGEMENT RELATIONS ACT OR WHETHER SO FAR AS SEAMEN
AND THEIR WAGES ARE CONCERNED SEC. 301 IS ONLY AN OPTIONAL METHOD OF
RESOLVING THE CONTROVERSY. 

TITLE 46 U.S.C. 596, WHICH DERIVES FROM THE ACT OF JULY 20, 1790,
SEC. 6, 1 STAT. 133, PROVIDES IN RELEVANT PART: 

     "THE MASTER OR OWNER OF ANY VESSEL MAKING COASTING VOYAGES

  SHALL PAY TO EVERY SEAMAN HIS WAGES WITHIN TWO DAYS AFTER THE

  TERMINATION OF THE AGREEMENT UNDER WHICH HE WAS SHIPPED, OR AT

THE TIME SUCH SEAMAN IS DISCHARGED, WHICHEVER FIRST HAPPENS; AND

  IN CASE OF VESSELS MAKING FOREIGN VOYAGES, OR FROM A PORT ON THE

  PACIFIC, OR VICE VERSA, WITHIN TWENTY-FOUR HOURS AFTER THE CARGO

  HAS BEEN DISCHARGED, OR WITHIN FOUR DAYS AFTER THE SEAMAN HAS

  BEEN DISCHARGED, WHICHEVER FIRST HAPPENS; AND IN ALL CASES THE

  SEAMAN SHALL BE ENTITLED TO BE PAID AT THE TIME OF HIS DISCHARGE

  ON ACCOUNT OF WAGES A SUM EQUAL TO ONE-THIRD PART OF THE BALANCE

  DUE HIM.  EVERY MASTER OR OWNER WHO REFUSES OR NEGLECTS TO MAKE

PAYMENT IN THE MANNER HEREINBEFORE MENTIONED WITHOUT SUFFICIENT

  CAUSE SHALL PAY TO THE SEAMAN A SUM EQUAL TO TWO DAYS' PAY FOR

  EACH AND EVERY DAY DURING WHICH PAYMENT IS DELAYED BEYOND THE

  RESPECTIVE PERIODS, WHICH SUM SHALL BE RECOVERABLE AS WAGES IN

  ANY CLAIM MADE BEFORE THE COURT . . . ." 

MOREOVER, 46 U.S.C. 597, WHICH ALSO DERIVES FROM THE 1790 ACT,
PROVIDES: 

     "EVERY SEAMAN ON A VESSEL OF THE UNITED STATES SHALL BE

  ENTITLED TO RECEIVE ON DEMAND FROM THE MASTER OF THE VESSEL TO

  WHICH HE BELONGS ONE-HALF PART OF THE BALANCE OF HIS WAGES EARNED

  AND REMAINING UNPAID AT THE TIME WHEN SUCH DEMAND IS MADE AT

  EVERY PORT WHERE SUCH VESSEL, AFTER THE VOYAGE HAS BEEN

  COMMENCED, SHALL LOAD OR DELIVERY CARGO BEFORE THE VOYAGE IS

  ENDED, AND ALL STIPULATIONS IN THE CONTRACT TO THE CONTRARY SHALL

  BE VOID:  PROVIDED, SUCH A DEMAND SHALL NOT BE MADE BEFORE THE

  EXPIRATION OF, NOR OFTENER THAN ONCE IN FIVE DAYS NOR MORE THAN

  ONCE IN THE SAME HARBOR ON THE SAME ENTRY . . . ." 

THE STATUTORY REMEDY SPEAKS IN TERMS OF THE AMOUNT OF WAGES DUE AND
OWING AND THE PENALTIES FOR NONPAYMENT, AND IT SPECIFIES THE TIMETABLE
WITHIN WHICH THE PAYMENTS MUST BE MADE.  SECTION 596 SPEAKS OF A
PENALTY FOR NONPAYMENT RECOVERABLE "AS WAGES IN ANY CLAIM MADE BEFORE
THE COURT."  THIS IMPLIES A RIGHT TO MAKE THE CLAIM TO THE COURT AND
NOT A DUTY TO MAKE IT BEFORE A GRIEVANCE COMMITTEE OR BEFORE AN
ARBITER.  HENCE SEC. 596 DOES NOT WHOLLY JIBE WITH SEC. 301.  WE OFTEN
MUST LEGISLATE INTERSTITIALLY /1/  TO IRON OUT INCONSISTENCIES WITHIN A
STATUTE OR TO FILL GAPS RESULTING FROM LEGISLATIVE OVERSIGHT OR TO
RESOLVE AMBIGUITIES RESULTING FROM A LEGISLATIVE COMPROMISE.  IT IS
EARNESTLY URGED THAT THE GRIEVANCE PROCEDURE ESTABLISHED IN THE
COLLECTIVE-BARGAINING AGREEMENT CAN GIVE EFFECT TO THESE PAYMENTS AND
PENALTY PROVISIONS AND THAT THE AGREEMENT IS THEREFORE NOT IN
DEROGATION OF THE ANCIENT STATUTORY REMEDY WHICH CONGRESS HAS
PROVIDED. 

SEAMEN FROM THE START WERE WARDS OF ADMIRALTY.  SEE ROBERTSON V.
BALDWIN, 165 U.S. 275, 287.  IN 1872 IT WAS PROVIDED THAT THE FEDERAL
COURTS MIGHT APPOINT SHIPPING COMMISSIONERS "TO SUPERINTEND THE
SHIPPING AND DISCHARGE OF SEAMEN" IN OUR MERCHANT FLEET.  CONG. GLOBE,
42D CONG., 2D SESS., 1836.  /2/  COMMISSIONERS INDEED SERVED, 46 U.S.C.
541 (1940 ED.), AS AN ADMINISTRATIVE ADJUNCT OF THE FEDERAL COURTS
UNTIL JULY 16, 1946, WHEN SEC. 104 OF REORGANIZATION PLAN NO. 3 OF 1946
ABOLISHED THEM.  60 STAT. 1098.  NO OTHER ADMINISTRATIVE AGENCY WAS
SUBSTITUTED.  THE FEDERAL COURTS REMAINED AS THE GUARDIANS OF SEAMEN,
THE AGENCIES CHOSEN BY CONGRESS, TO ENFORCE THEIR RIGHTS-- A GUARDIAN
CONCEPT WHICH, SO FAR AS WAGE CLAIMS ARE CONCERNED, IS NOT MUCH
DIFFERENT FROM WHAT IT WAS IN THE 18TH CENTURY. 

WE REVIEWED THE LEGISLATIVE HISTORY OF SEC. 301 IN TEXTILE WORKERS
V. LINCOLN MILLS, 353 U.S.,AT 451-456.  THE MATTER OF FOREMOST CONCERN
IN CONGRESS WAS THE ENFORCEABILITY OF COLLECTIVE-BARGAINING
AGREEMENTS.  THE ESSENCE OF SEC. 301 WAS A NEW FEDERAL POLICY GOVERNED
BY FEDERAL LAW-- "THAT FEDERAL COURTS SHOULD ENFORCE THESE AGREEMENTS
ON BEHALF OF OR AGAINST LABOR ORGANIZATIONS AND THAT INDUSTRIAL PEACE
CAN BE BEST OBTAINED ONLY IN THE WAY."  ID., AT 455.  ENFORCEMENT BY OR
AGAINST LABOR UNIONS WAS THE MAIN BURDEN OF SEC. 301, THOUGH STANDING
BY INDIVIDUAL EMPLOYEES TO SECURE DECLARATIONS OF THEIR LEGAL RIGHTS
UNDER THE COLLECTIVE AGREEMENT WAS RECOGNIZED.  ID., AT 456.  SINCE THE
EMPHASIS WAS ON SUITS BY UNIONS AND AGAINST UNIONS, LITTLE ATTENTION
WAS GIVEN TO THE ASSERTION OF CLAIMS BY INDIVIDUAL EMPLOYEES AND NONE
WHATSOEVER CONCERNING THE IMPACT OF SEC. 301 ON THE SPECIAL PROTECTIVE
PROCEDURES GOVERNING THE COLLECTION OF WAGES OF MARITIME WORKERS.  WE
CAN FIND NO SUGGESTION IN THE LEGISLATIVE HISTORY OF THE LABOR
MANAGEMENT RELATIONS ACT OF 1947 THAT GRIEVANCE PROCEDURES AND
ARBITRATION WERE TO TAKE THE PLACE OF THE OLD SHIPPING COMMISSIONERS OR
TO ASSUME PART OR ALL OF THE ROLES SERVED BY THE FEDERAL COURTS
PROTECTIVE OF THE RIGHTS OF SEAMEN SINCE 1790. 

IT IS EARNESTLY URGED THAT THE LITERALNESS OF THE OLD STATUTE SHOULD
GIVE WAY TO THE PROGRESSIVE PHILOSOPHY OF THE NEW PROCEDURES. 

IT IS SAID THAT ARBITRATION WOULD BE MOST APPROPRIATE BECAUSE "A
FAMILIARITY WITH THE CUSTOMS AND PRACTICES OF SHIPPING WOULD BE
DISTINCTLY HELPFUL IN ASSESSING THE VALIDITY OF THE CLAIMS," AND THE
"UNDERLYING WAGE CLAIMS (ARE) BASED ON FACTUAL DISPUTES."  RESOLVING
FACTUAL DISPUTES IS HARDLY UNCOMMON IN FEDERAL DISTRICT COURTS.  AND
WHILE AN ARBITRATOR IN THE AREA MAY HAVE EXPERTISE, FOR 180 YEARS
FEDERAL COURTS HAVE BEEN PROTECTING THE RIGHTS OF SEAMEN AND ARE NOT
WITHOUT KNOWLEDGE IN THE AREA. 

IT IS ALSO SAID THAT THE INFORMAL, READILY AVAILABLE GRIEVANCE AND
ARBITRATION PROCEDURES MIGHT DEFEAT ANY OVERREACHING AND DELAY BY THE
EMPLOYER WHICH SEC. 596 WAS DESIGNED TO REACH.  WE DO NOT HOLD THAT
SEC. 596 IS THE EXCLUSIVE REMEDY OF THE SEAMAN.  HE MAY, IF HE CHOOSES,
USE THE PROCESSES OF GRIEVANCE AND ARBITRATION.  YET, UNLIKE CONGRESS,
WE ARE NOT IN A POSITION TO SAY THAT HIS INTERESTS USUALLY WILL BE BEST
SERVED THROUGH SEC. 301 RATHER THAN THROUGH SEC. 596. 

THE LITERAL CONFLICT BETWEEN THIS ANCIENT SEAMAN'S STATUTE AND THE
RELATIVELY NEW GRIEVANCE PROCEDURE IS ONE WHICH WE THINK CONGRESS
RATHER THAN THIS COURT SHOULD RESOLVE.  WE DO NOT SIT AS A LEGISLATIVE
COMMITTEE OF REVISION.  WE KNOW THAT THIS EMPLOYEE HAS A JUSTICIABLE
CLAIM.  WE KNOW IT IS THE KIND OF CLAIM THAT IS GRIST FOR THE JUDICIAL
MILL.  WE KNOW THAT IN SEC. 596 CONGRESS ALLOWED IT TO BE RECOVERABLE
WHEN MADE TO A COURT.  WE KNOW THAT THIS DISTRICT COURT HAS THE CASE
PROPERLY BEFORE IT UNDER THE HEAD OF MARITIME JURISDICTION.  WE
HESITATE TO ROUTE THIS CLAIMANT THROUGH THE RELATIVELY NEW
ADMINISTRATIVE REMEDY OF THE COLLECTIVE AGREEMENT AND SHUT THE
COURTHOUSE DOOR ON HIM WHEN CONGRESS, SINCE 1790, HAS SAID THAT IT IS
OPEN TO MEMBERS OF HIS CLASS. 

WHAT WE DECIDE TODAY HAS NOTHING WHATSOEVER TO DO WITH GRIEVANCE
CLAIMS OF THE MARITIME UNIONS AGAINST EMPLOYERS OR THE CLAIMS OF
EMPLOYERS AGAINST THEM, FOR NEITHER IS TOUCHED BY SEC. 596.  WE DEAL
ONLY WITH THE SEAMAN'S PERSONAL WAGE CLAIMS. 

MARITIME UNIONS, OF COURSE, LIKE OTHER UNIONS, GAIN "PRESTIGE" BY
PROCESSING GRIEVANCE CLAIMS.  REPUBLIC STEEL CORP. V. MADDOX, SUPRA, AT
653.  AND EMPLOYER INTERESTS ARE SERVED "BY LIMITING THE CHOICE OF
REMEDIES AVAILABLE TO AGGRIEVED EMPLOYEES."  IBID.  IN MADDOX, THERE
WAS NO EXPRESS EXCEPTION GOVERNING INDIVIDUAL CLAIMS OF EMPLOYEES FROM
SEC. 301 GRIEVANCE PROCEDURES AND WE DECLINED TO CARVE ONE OUT UNDER
THE CIRCUMSTANCES THERE PRESENT.  THE CIRCUMSTANCES HERE ARE QUITE
DIFFERENT BECAUSE OF THE EXPRESS JUDICIAL REMEDY CREATED BY SEC. 596. 
THE RELUCTANCE IN MADDOX TO REDESIGN THE STATUTORY REGIME OF SEC. 301
MAKES US EQUALLY RELUCTANT TO REDESIGN THE STATUTORY REGIME OF SEC.
596. 

THE CHRONOLOGY OF THE TWO STATUTES-- SEC. 596 AND SEC. 301-- MAKES
CLEAR THAT THE JUDICIAL REMEDY WAS MADE EXPLICIT IN SEC. 596 AND HAS
NOT CLEARLY TAKEN AWAY BY SEC. 301.  WHAT CONGRESS HAS PLAINLY GRANTED
WE HESITATE TO DENY.  SINCE THE HISTORY OF SEC. 301 IS SILENT ON THE
ABROGATION OF EXISTING STATUTORY REMEDIES OF SEAMEN IN THE MARITIME
FIELD, WE CONSTRUE IT TO PROVIDE ONLY AN OPTIONAL REMEDY TO THEM.  WE
WOULD REQUIRE MUCH MORE TO HOLD THAT SEC. 301 REFLECTS A PHILOSOPHY OF
LEGAL COMPULSION THAT OVERRIDES THE EXPLICIT JUDICIAL REMEDY PROVIDED
BY 46 U.S.C. 596. 

             AFFIRMED. 

/1/  "I RECOGNIZE WITHOUT HESITATION THAT JUDGES DO AND MUST
LEGISLATE, BUT THEY CAN DO SO ONLY INTERSTITIALLY; THEY ARE CONFINED
FROM MOLAR TO MOLECULAR MOTIONS."  SOURTHERN PACIFIC CO. V. JENSEN, 244
U.S. 205, 221 (HOLMES, J., DISSENTING). 

MR. JUSTICE CARDOZO, IN SPEAKING OF THE CONSTRUCTION OF LAWS TO
ACHIEVE JUSTICE AND HARMONY, SAID: 

"ALL DEPARTMENTS OF THE LAW HAVE BEEN TOUCHED AND ELEVATED BY THIS
SPIRIT.  IN SOME, HOMEVER, THE METHOD OF SOCIOLOGY WORKS IN HARMONY
WITH THE METHOD OF PHILOSOPHY OR OF EVOLUTION OR OF TRADITION.  THOSE,
THEREFORE, ARE THE FIELDS WHERE LOGIC AND COHERENCE AND CONSISTENCY
MUST STILL BE SOUGHT AS ENDS.  IN OTHERS, IT SEEMS TO DISPLACE THE
METHODS THAT COMPETE WITH IT.  THOSE ARE THE FIELDS WHERE THE VIRTUES
OF CONSISTENCY MUST YIELD WITHIN THOSE INTERSTITIAL LIMITS WHERE
JUDICIAL POWER MOVES," SELECTED WRITINGS 136 (HALL ED. 1947). 

/2/  AND SEE CONG. GLOBE, 42D CONG., 2D SESS., 1838, 1863, 2172,
2206, 3437, 3572, 3911. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND OPINION OF THE COURT
WHILE STILL ADHERING TO HIS DISSENT IN REPUBLIC STEEL CORP. V. MADDOX,
379 U.S. 650. 

MR. JUSTIC HARLAN, CONCURRING. 

I JOIN IN THE OPINION AND JUDGMENT OF THE COURT, BUT DEEM IT
ADVISABLE TO ADD SOME THOUGHTS OF MY OWN. 

    I 

I DO NOT THINK THAT THE MERE PROVISION BY FEDERAL STATUTE OF A
JUDICIAL FORUM FOR ENFORCEMENT OF THE WAGE CLAIMS OF A SUBELASS OF
WORKERS FORECLOSES APPLICATION OF THE ARBITRATION PRINCIPLES OF TEXTILE
WORKERS V. LINCOLN MILLS, 353 U.S. 488 (1957), AND REPUBLIC STEEL CORP.
V. MADDOX, 379 U.S. 650 (1965); NOR DO I UNDERSTAND THE COURT'S OPINION
TODAY TO SO HOLD.  IN SMITH V. EVENING NEWS ASSN., 371 U.S. 195 (1962),
WE HELD THAT A SUIT IN THE STATE COURTS BY AN INDIVIDUAL EMPLOYEE
CHARGING EMPLOYER DISCRIMINATION IN VIOLATION OF THE COLLECTIVE
BARGAINING AGREEMENT WAS NOT FORECLOSED BY THE AVAILABILITY OF AN
UNFAIR LABOR PRACTICE PROCEEDING BEFORE THE NATIONAL LABOR RELATIONS
BOARD BASED ON THE SAME CONDUCT.  THERE WE EXPLICITLY NOTED THE ABSENCE
OF A GRIEVANCE ARBITRATION PROVISION IN THE CONTRACT WHICH HAD TO BE
EXHAUSTED BEFORE RECOURSE COULD BE HAD TO THE COURTS.  ID., AT 196
N.1.  LATER, IN REPUBLIC STEEL CORP. V. MADDOX, SUPRA, AT 652, WE CITED
THIS PORTION OF SMITH AS SUPPORT FOR THE BROADLY STATED PROPOSITION
THAT "(AS A GENERAL RULE IN CASES TO WHICH FEDERAL LAW APPLIES, FEDERAL
LABOR POLICY REQUIRES THAT INDIVIDUAL EMPLOYEES WISHING TO ASSERT
CONTRACT GRIEVANCES MUST ATTEMPT USE OF THE CONTRACT GRIEVANCE
PROCEDURE AGREED UPON BY EMPLOYER AND UNION AS THE MODE OF REDRESS." 
MADDOX HELD THAT AN EMPLOYEE WAS COMPELLED TO EXHAUST CONTRACTUAL
GRIEVANCE MACHINERY AS A PRECLUDE TO COMMENCING A SEC. 301 SUIT ON THE
CONTRACT IN THE STATE COURT.  FINALLY, IN CAREY V. WESTINGHOUSE CORP.,
375 U.S. 261 (1964), WE HELD THAT A UNION COULD COMPEL AN EMPLOYER TO
ARBITRATE A CONTRACTUAL GRIEVANCE ARISING OUT OF EVENTS WHICH ALSO
MIGHT SUPPORT PROCEEDINGS BEFORE THE NLRB FOR EITHER AN UNFAIR LABOR
PRACTICE UNDER SEC. 8(A)(5) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, OR A PETITION CLARIFYING THE UNION'S REPRESENTATION
CERTIFICATE UNDER SEC. 9(C)(1).  SEE ALSO OLD DUTCH FARMS V. LOCAL 584,
I.B.T., 243 F.SUPP.  246(EDNY 1965); UNITED STATES STEEL CORP. V.
SEAFARERS, 237 F.SUPP.  529(ED PA. 1965).  SEE GENERALLY VACA V. SIPES,
386 U.S. 171, 183-184 (1967). 

SMITH, CAREY, AND MADDOX TOGETHER EVINCE THE FUNDAMENTAL ROLE
ARBITRATION PLAYS IN IMPLEMENTING NATIONAL LABOR RELATIONS POLICY. 
THEY ALSO EVINCE THE CRUCIAL ROLE OF THE FEDERAL JUDICIARY IN FORGING
THE PROPER RELATIONSHIPS AMONG AVAILABLE ARBITRAL, ADMINISTRATIVE, AND
JUDICIAL FORUMS FOR VINDICATING CONTRACTUAL AND STATUTORY RIGHTS OF
EMPLOYERS, UNIONS, AND EMPLOYEES.  IN LIGHT OF THESE CASES, I CANNOT
INFER, FROM THE MERE PROVISION BY CONGRESS OF A FEDERAL JUDICIAL FORUM
FOR ENFORCEMENT OF THE WAGE CLAIMS OF A SUBCLASS OF WORKERS' WAGES,
THAT THIS COURT IS FORECLOSED FROM REQUIRING ARBITRATION UNDER THE
COLLECTIVE-BARGAINING CONTRACT. 

BUT IN FORGING THIS RELATIONSHIP AMONG POTENTIALLY COMPETING FORUMS
FOR THE EFFECTUATION OF CONTRACTUAL AND STATUTORY RIGHTS OF INDIVIDUALS
AND ORGANIZATIONS, WE HAVE ALWAYS PROCEEDED WITH CLOSE ATTENTION TO THE
POLICIES UNDERPINNING BOTH THE DUTY TO ARBITRATE AND THE PROVISION BY
CONGRESS OF RIGHTS AND REMEDIES IN ALTERNATIVE FORUMS.  THIS COURT HAS
ALWAYS RECOGNIZED THAT THE CHOICE OF FORUMS INEVITABLY AFFECTS THE
SCOPE OF THE SUBSTANTIVE RIGHT TO BE VINDICATED BEFORE THE CHOSEN
FORUM.  IN PARTICULAR, WHERE ARBITRATION IS CONCERNED, THE COURT HAS
BEEN ACUTELY SENSITIVE TO THESE DIFFERENCES.  THUS, IN WILKO V. SWAN,
346 U.S. 427 (1953), THE COURT FACED A CONFLICT BETWEEN CONGRESSIONAL
POLICY FAVORING ARBITRATION, AS MANIFESTED IN SEC. 3 OF THE UNITED
STATES ARBITRATION ACT, 9 U.S. 3, AND CONGRESSIONAL POLICY FAVORING
PROTECTION OF SECURITIES PURCHASERS FROM FRAUD, AS MANIFESTED IN SEC.
12(2) OF THE SECURITIES ACT OF 1933, 48 STAT. 84, 15 U.S.C. 77L(2). 
THE COURT CAREFULLY ANALYZED THE IMPACT WHICH REMISSION TO ARBITRATION
WOULD HAVE ON THE SCOPE OF THE SUBSTANTIVE FEDERAL RIGHT INVOLVED IN
THAT CASE AND CONCLUDED THAT CONFLICTING CONGRESSIONAL GOALS WOULD BEST
BE SERVED BY CONSTRUING THE NONWAIVER PROVISIONS OF THE SECURITIES ACT
/1/  AS APPLYING TO THE CHOICE OF A JUDICIAL FORUM AS WELL AS THE
SUBSTANCE OF THE ACT'S PROTECTION.  SEE WILKO V. SWAN, SUPRA, AT 434
439.  CENTRAL TO THE PROCESS OF RECONCILIATION IN THAT CASE WAS THE
RECOGNITION THAT THE EFFECTIVENESS OF ANY PRO-ARBITRATION POLICY IS
DEPENDENT, IN THE FIRST INSTANCE, ON A LIMITED SCOPE OF JUDICIAL REVIEW
OF THE ARBITRATOR'S DETERMINATION. 

AND IN BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198 (1956), IN HOLDING
THAT STATE LAW CONTROLLED ON THE QUESTION OF REFERENCE TO ARBITRATION
IN A DIVERSITY SUIT BROUGHT IN A FEDERAL COURT, THE COURT OFFERED THE
FOLLOWING CONSIDERATIONS ON THE IMPACT WHICH REFERENCE TO ARBITRATION
HAS ON THE SCOPE OF THE SUBSTANTIVE RIGHT: 

"THE NATURE OF THE TRIBUNAL WHERE SUITS ARE TRIED IS AN IMPORTANT
PART OF THE PARCEL OF RIGHTS BEHIND A CAUSE OF ACTION.  THE CHANGE FROM
A COURT OF LAW TO AN ARBITRATION PANEL MAY MAKE A RADICAL DIFFERENCE IN
ULTIMATE RESULT.  . . . ARTIBTRATORS DO NOT HAVE THE BENEFIT OF
JUDICIAL INSTRUCTION ON THE LAW; THEY NEED NOT GIVE THEIR REASONS FOR
THEIR RESULTS; THE RECORD OF THEIR PROCEEDINGS IS NOT AS COMPLETE AS IT
IS IN A COURT TRIAL; AND JUDICIAL REVIEW OF AN AWARD IS MORE LIMITED
THAN JUDICIAL REVIEW OF A TRIAL-- ALL AS DISCUSSED IN WILKO V. SWAN . .
. ."  350 U.S.,AT 203. 

NORMALLY, THE IMPACT ON THE SUBSTANTIVE RIGHT RESULTING FROM THE
DECISION TO REMIT THE INDIVIDUAL TO THE ARBITRAL FORUM IS ACCEPTABLE
BECAUSE THE PARTIES THEMSELVES HAVE CONSENTED TO THAT FORUM.  COMPARE
ATKINSON V. SINCLAIR REFINING CO., 370 U.S. 238 (1962), WITH DRAKE
BAKERIES V. LOCAL 50, AMERICAN BAKERY WORKERS, 370 U.S. 254 (1962). 
AND, WITH RESPECT TO THE INDIVIDUAL EMPLOYEE SEEKING TO BYPASS THE
ARBITRAL FORUM IN A SUIT BROUGHT "SIMPLY ON THE CONTRACT," SEE MADDOX,
SUPRA, AT 657, THE FACT THAT HIS SUBSTANTIVE RIGHTS DERIVE SOLELY FROM
THE CONTRACT, AND THAT HE OWES THOSE RIGHTS TO THE ACTIONS OF HIS UNION
REPRESENTATIVE IN THE COLLECTIVE-BARGAINING PROCESS, WARRANTS THE
EXTENSION OF THE BOUNDARIES OF COLLECTIVE CONSENT TO HIS INDIVIDUAL
REMEDIAL PREFERENCES.  A SUIT SIMPLY ON THE CONTRACT TO ENFORCE
CONTRACTUAL GRIEVANCES IS THE NORMAL LABOR ARBITRATION SITUATION, AND
"IT CANNOT BE SAID, IN THE NORMAL SITUATION, THAT CONTRACT GRIEVANCE
PROCEDURES ARE INADEQUATE TO PROTECT THE INTERESTS OF AN AGGRIEVED
EMPLOYEE UNTIL THE EMPLOYEE HAS ATTEMPTED TO IMPLEMENT THE PROCEDURES
AND FOUND THEM SO."  MADDOZ, SUPRA, AT 653.  IN MADDOX, WE LAID OUT IN
FULL THE STRONG POLICY CONCERNS WHICH SUPPORT EXCLUSIVITY IN THE
ARBITRAL FORUM, SUPRA, AT 653-656, AND THEN EXPRESSLY NOTED THE ABSENCE
OF COUNTERVAILING POSITIVE REASONS WHERE THE SUIT WAS SIMPLY ON THE
CONTRACT.  SUPRA, AT 657.  IT IS THIS STATE OF AFFAIRS THAT SUPPORTS
THE PRESUMPTION OF COMPREHENSIVENESS UNDERPINNING THIS COURT'S SEC 301
LABOR ARBITRATION DOCTRINES.  MADDOX, SUPRA, AT 657. 

        II 

ARGUELLES' SUIT, UNLIKE MADDOX'S SUIT, IS NOT "SIMPLY ON THE
CONTRACT"; HE INVOKES THE COURT'S JURISDICTION SEEKING, IN ADDITION TO
THE OVERTIME WAGES ALLEGEDLY DUE HIM UNDER THE COLLECTIVE-BARGAINING
AGREEMENT, A STATUTORY CLAIM FOR REFUSAL OR NEGLECT TO PAY HIS WAGES
ACCORDING TO THE TIMETABLE PRESCRIBED IN 46 U.S.C. 596 "WITHOUT
SUFFICIENT CAUSE."  IN THIS CIRCUMSTANCE, THE PRESUMPTION OF
COMPREHENSIVENESS OF THE ARBITRAL REMEDY IS, IN MY VIEW, REBUTTED. 

BUT, OF COURSE, THE POLICIES UNDERPINNING MADDOX ARE STILL RELEVANT
TO THE PROCESS OF FORGING RELATIONSHIPS AMONG POTENTIALLY COMPETING
FORUMS IN THIS CASE.  HERE, AS IN MADDOX, THE UNION'S STATUS AS
EXCLUSIVE BARGAINING REPRESENTATIVE WILL MOST CERTAINLY BE BOLSTERED BY
REQUIRING THE EMPLOYEE TO VINDICATE BOTH HIS CONTRACTUAL AND STATUTORY
RIGHTS IN THE ARBITRAL FORUM.  SUPRA, AT 653.  AND, EVEN MORE
IMPORTANTLY, HERE AS IN MADDOX, THE AVAILABILITY OF AN ALTERNATIVE
FORUM FOR VINDICATING BOTH STATUTORY AND CONTRACTUAL RIGHTS ALLEGEDLY
ABRIDGED IN THE SAME TRANSACTION CUTS SIGNIFICANTLY INTO THE
DESIRABILITY OF THE ARBITRAL FORUM FROM THE EMPLOYER'S NEGOTIATING
VIEWPOINT.  MADDOX, SUPRA, AT 656-657.  BUT, IN THE PRESENT CONTEXT, IT
IS CRUCIAL TO RECOGNIZE THAT THESE POLICY CONSIDERATIONS UNDERPINNING
ARBITRATION ARGUE, NOT MERELY FOR REFERENCE TO THE ARBITRATOR AS A
MATTER OF PRIOR EXHAUSTION OF INTERNAL ORGANIZATIONAL REMEDIES, BUT
ALSO FOR EXTREMELY LIMITED JUDICIAL REVIEW OF THE ARBITRATOR'S
DECISION.  INDEED, THIS COURT'S DECISIONS IN THE STEELWORKERS TRILOGY
MAKE VERY CLEAR THAT THE SCOPE OF JUDICIAL REVIEW OF THE ARBITRATOR'S
JUDGMENT WHERE MATTERS OF CONTRACT RIGHTS ARE CONCERNED IS LIMITED TO A
THRESHOLD DETERMINATION OF THE ARBITRABILITY OF THE DISPUTE.  UNITED
STEELWORKERS V. AMERICAN MFG. CO., 363 U.S. 564 (1960); UNITED
STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574 (1960);
UNITED STEELWORKERS V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593
(1960).  THE EXTREME LIMITATION OF JUDICIAL REVIEW, AND THE EXPANSIVE
READING OF CONSENT, ARE BOTH IMPORTANT TO THE TASK OF EFFECTUATING
NATIONAL LABOR POLICY; BOTH ARE LEGITIMIZED, IN MY VIEW, BY THE
DERIVATION OF THE INDIVIDUAL'S SUBSTANTIVE LEGAL RIGHT FROM THE
COLLECTIVE-BARGAINING AGREEMENT. 

WHERE, HOWEVER, THE SEC. 301 DISPUTE IMPLICATES FEDERAL STATUTORY
RIGHTS, IT IS INCUMBENT UPON THIS COURT TO FASHION THE REALTIONSHIPS
AMONG FORUMS ACCORDING TO AN ANALYSIS OF THE POLICIES UNDERPINNING BOTH
SEC. 301 AND THE FEDERAL STATUTE THE EMPLOYEE INVOKES, RATHER THAN
SIMPLY TRANSPOSING IPSO FACTO THE COURT'S LABOR ARBITRATION
JURISPRUDENCE.  THUS, IN THE ANALOGOUS SITUATION WHERE THE DISPUTED
TRANSACTION IMPLICATES BOTH CONTRACTUAL RIGHTS AND RIGHTS ENFORCEABLE
IN NLRB PROCEEDINGS, WE DO NOT SIMPLY ASSUME THAT BECAUSE THE DISPUTE
INVOLVES A CONTRACT GRIEVANCE, AND THE CONTRACT CONTAINS A TYPICALLY
BROAD ARBITRATION PROVISION, REMISSION TO ARBITRATION ON THE
PRESUMPTION OF CONSENT-- COMBINED WITH VIRTUALLY NO REVIEW-- FOLLOWS
AUTOMATICALLY.  RATHER, THE COURT TAKES ACCOUNT OF THE VIEWS OF THE
NLRB, AS THE AGENCY CHARGED WITH ENFORCEMENT OF THE SUBSTANTIVE
STATUTORY RIGHT IN QUESTION, ON THE DIFFICULT ISSUE WHETHER THE
INTERESTS OF NATIONAL LABOR POLICY, AS MANIFESTED BOTH IN SEC. 301 AND
THE UNFAIR LABOR PRACTICE PROVISION, WILL BEST BE SERVED BY REMISSION
TO ARBITRATION.  SEE, E.G., CAREY V. WESTINGHOUSE CORP., 375 U.S.,AT
271-272; SMITH V. EVENING NEWS ASSN., 371 U.S.,AT 197-198. 

        III 

HERE SEAMAN ARGUELLES SEEKS TO VINDICATE A FEDERAL STATUTORY RIGHT
TO PROMPT PAYMENT OF WAGES DUE HIM.  HIS ORIGINAL COMPLAINT STATED A
CAUSE OF ACTION UNDER 46 U.S.C. 596, WHICH PROVIDES AS FOLLOWS: 

    "THE MASTER OR OWNER OF ANY VESSEL MAKING COASTING VOYAGES

  SHALL PAY TO EVERY SEAMAN HIS WAGES WITHIN TWO DAYS AFTER THE

  TERMINATION OF THE AGREEMENT UNDER WHICH HE WAS SHIPPED, OR AT

  THE TIME SUCH SEAMAN IS DISCHARGED, WHICHEVER FIRST HAPPENS; AND

  IN CASE OF VESSELS MAKING FOREIGN VOYAGES, OR FROM A PORT ON THE

  ATLANTIC TO A PORT ON THE PACIFIC, OR VICE VERSA, WITHIN

  TWENTY-FOUR HOURS AFTER THE CARGO HAS BEEN DISCHARGED, OR WITHIN

  FOUR DAYS AFTER THE SEAMAN HAS BEEN DISCHARGED, WHICHEVER FIRST

  HAPPENS; AND IN ALL CASES THE SEAMAN SHALL BE ENTITLED TO BE PAID

  AT THE TIME OF HIS DISCHARGE ON ACCOUNT OF WAGES A SUM EQUAL TO

  ONE-THIRD PART OF THE BALANCE DUE HIM.  EVERY MASTER OR OWNER WHO

  REFUSES OR NEGLECTS TO MAKE PAYMENT IN THE MANNER HEREINBEFORE

  MENTIONED WITHOUT SUFFICIENT CAUSE SHALL PAY TO THE SEAMAN A SUM

  EQUAL TO TWO DAYS' PAY FOR EACH AND EVERY DAY DURING WHICH

  PAYMENT IS DELAYED BEYOND THE RESPECTIVE PERIODS, WHICH SUM SHALL

  BE RECOVERABLE AS WAGES IN ANY CLAIM MADE BEFORE THE COURT . . .

." 

THESE PROVISIONS OF TITLE 46 DERIVE FROM SEC. 6 OF THE ACT OF JULY
20, 1790; SEE 1 STAT. 133.  ALSO DERIVED FROM SEC. 6 OF THE ORIGINAL
ACT IS 46 U.S.C. 597, PROVIDING FOR PART PAYMENT OF WAGES EARNED DURING
INTERIM STOPS IN PORT FOR THE DISCHARGE OF CARGO.  /2/  SECTIONS 596
AND 597 GO BEYOND THE MERE PROVISON OF A FEDERAL JUDICIAL FORUM FOR
VINDICATION OF A WORKER'S WAGE CLAIMS; THEY REPRESENT A CONGRESSIONAL
POLICY TO SECURE TO THE INDIVIDUAL SEAMAN THE PROMPT PAYMENT OF HIS
WAGES /3/  AS PART OF A BROADER PROTECTIVE AND REMEDIAL SCHEME INTENDED
FOR THE BENEFIT OF SEAMEN.  SEE ISBRANDTSEN CO. V. JOHNSON, 343 U.S.
779, 784-786 (1952).  THIS LEGISLATION, THOUGH ANTEDATING THE EMERGENCE
OF MODERN COLLECTIVE-BARGAINING INSTITUTIONS, MUST BE TAKEN TO
REPRESENT A CONTINUING CONGRESSIONAL POLICY TO PROTECT SEAMEN AS
INDIVIDUAL LABORERS. 

IN THE INSTANT CASE, REMISSION TO ARBITRATION UNDER THE USUAL
ASSUMPTION CONCERNING THE SCOPE OF JUDICIAL REVIEW WOULD MEAN THAT A
DENIAL OF THE GRIEVANCE WITHOUT ANY EXPLANATION ON THE ARBITRATOR'S
PART WOULD HAVE TO STAND.  GIVEN THE ASSUMPTION CONCERNING SCOPE OF
JUDICIAL REVIEW, THE SEAMAN'S STATUTORY RIGHT TO DOUBLE WAGES IN THE
EVENT OF FAILURE, "WITHOUT SUFFICIENT CAUSE" TO PAY PROMPTLY WITHIN THE
MEANING OF SEC. 596 IS, AS A PRACTICAL MATTER, SUBJECT TO THE
UNREVIEWABLE DISCRETION OF THE ARBITRATOR. 

BUT THE USUAL ASSUMPTION CONCERNING JUDICIAL REVIEW NEED NOT
NECESSARILY OBTAIN IN SITUATIONS OF THIS SORT, ANY MORE THAN THE USUAL
ASSUMPTIONS CONCERNING THE BOUNDARIES OF THE INDIVIDUAL'S CONSENT TO
THE ACTIONS OF HIS BARGAINING REPRESENTATIVE IN AGREEING TO THE BROAD
ARBITRATION PROVISION NEED NECESSARILY OBTAIN.  TWO POSSIBILITIES
SUGGEST THEMSELVES:  THE ARBITRATOR'S AWARD MIGHT BE REVIEWABLE TO SOME
UNSPECIFIED EXTENT, TO ASCERTAIN WHETHER THE RIGHTS UNDER SECS. 596 AND
597 HAVE BEEN ADEQUATELY PROTECTED, OR THE CLAIM MAY, IN SOME FASHION,
BE SPLIT, EITHER BY DECLINING JURISDICTION AT THE OUTSET OVER THE
CONTRACT PORTION OF THE LITIGATION, OR BY UTILIZING THE VARIOUS DEVICES
OF ABSTENTION.  CF., E.G., UNITED STATES STEEL CORP. V. SEAFARERS, 273
F.SUPP.  529(ED PA. 1965).  AS AN ABSTRACT PROPOSITION, BOTH OPTIONS
HAVE THE UNDESIRABLE CONSEQUENCE OF CUTTING SUBSTANTIALLY INTO THE VERY
EXCLUSIVITY OF THE CONTRACTUAL FORUM WHICH WE SAID IN MADDOX IS
IMPORTANT TO EFFECTUATION OF THE NATIONAL LABOR POLICY FAVORING
ARBITRATION.  SEE MADDOX, SUPRA, AT 653.  AND THE DIFFICULTIES OF
ANALYZING THE RESPECTIVE BOUNDARIES OF THE CONTRACTUAL RIGHT AND THE
STATUTORY RIGHT FORBODE ILL FOR THE EFFICIENT RESOLUTION OF DISPUTES
IMPLICATING BOTH THE CONTRACT RIGHT AND THE FEDERAL STATUTORY RIGHT. 
BUT THE MATTER IS NOT ONE TO BE DECIDED ABSTRACTLY; IT MAY WELL BE THAT
CERTAIN TYPES OF FEDERAL STATUTORY BENEFITS WILL LEND THEMSELVES TO
ARBITRATION OR SPLITTING WITHOUT AN UNACCEPTABLE SACRIFICE IN COMPETING
POLICY INTERESTS. 

HOWEVER, THIS IS NOT SUCH A STATUTE, BECAUSE THE VERY ESSENCE OF THE
LEGISLATIVE POLICY AT STAKE HERE IS ENSURING PROMPTNESS IN THE PAYMENT
OF WAGES.  I THINK IT OBVIOUS THAT THE LEAST DESIRABLE OF ALL SOLUTIONS
WOULD BE TO CREATE A NECESSITY FOR SUITS IN BOTH FORUMS.  IN THIS
CIRCUMSTANCE, I THINK CONFLICTING CONGRESSIONAL POLICIES ARE BEST
RECONCILED BY CONSTRUING 46 U.S.C. 596 AND SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT AS SECURING TO THE SEAMAN AN OPTION TO CHOOSE
BETWEEN ARBITRAL AND JUDICIAL FORUMS WHERE HE STATES A CLAIM UNDER BOTH
THE CONTRACT AND 46 U.S.C. 596.     /1/  SECTION 14 OF THE SECURITIES
ACT OF 1933, 15 U.S.C. 77N, 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." 

/2/  ARGUELLES ATTEMPTED TO AMEND HIS COMPLAINT PRIOR TO THE SUMMARY
JUDGMENT HEARING TO STATE A COMPLAINT UNDER 46 U.S.C. 597 AS WELL AS
SEC. 596.  THE COURT REFUSED THE PROFFERED AMENDMENT PENDING ITS RULING
ON THE SUMMARY JUDGMENT MOTION.  BRIEF FOR RESPONDENT 7N.4. 

/3/  IN COLLIE V. FERGUSSON, 281 U.S. 52, 55 (1930), IN DISCUSSING
WHAT CONSTITUTES SUFFICIENT CAUSE FOR DELAY IN PAYMENT UNDER SEC. 596,
THE COURT NOTED THAT "THE EVIDENT PURPOSE OF THE SECTION (IS) TO SECURE
PROMPT PAYMENT OF SEAMEN'S WAGES . . . AND THUS TO PROTECT THEM FROM
THE HARSH CONSEQUENCES OF ARBITRARY AND UNSCRUPULOUS ACTION OF THEIR
EMPLOYERS, TO WHICH, AS A CLASS, THEY ARE PECULIARLY EXPOSED." 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, AND MR. JUSTICE MARSHALL JOIN, DISSENTING. 

RESPONDENT ARGUELLES IS A SEAMAN WHO SIGNED ONTO THE SS U.S. PECOS,
A MERCHANT SHIP OWNED BY PETITIONER, ON AUGUST 3, 1965, FOR SIX MONTHS'
EMPLOYMENT AT A STATED MONTHLY WAGE.  THE EMPLOYMENT RELATIONSHIP WAS
GOVERNED BY THE COLLECTIVE-BARGAINING AGREEMENT BETWEEN PETITIONER AND
THE NATIONAL MARITIME UNION, AFL-CIO, OF WHICH RESPONDENT IS A MEMBER. 

ON FEBRUARY 3, 1966, THE DAY AFTER RESPONDENT'S SHIPPING PAPERS
EXPIRED BY THEIR TERMS, THE PECOS ANCHORED OFF CAPE ST. JACQUES, SOUTH
VIETNAM, AWAITING AUTHORIZATION TO PROCEED TO SAIGON HARBOR. 
RESPONDENT CONCEDES THAT CONGESTION IN THE HARBOR WAS THE CAUSE OF THE
EXTENDED WAIT OFFSHORE.  /1/  DURING THIS TIME, SAIGON PORT OFFICIALS
REFUSED TO GRANT PRATIQUE, OR QUARANTINE CLEARANCE, TO CREW MEMBERS. 
NONETHELESS, RESPONDENT DEMANDED DISCHARGE OR SHORE LEAVE, BOTH OF
WHICH WERE REFUSED.  /2/  ON FEBRUARY 13, THE PECOS WAS AUTHORIZED TO,
AND DID, PROCEED TO THE HARBOR AND TIE UP AT A DESIGNATED LOCATION. 
UNLOADING OF CARGO BEGAN FEBRUARY 16, AND THE FOLLOWING DAY RESPONDENT
AND OTHER CREW MEMBERS WERE DISCHARGED AND GIVEN A VOUCHER FOR THEIR
WAGES AT THE AMERICAN CONSULATE IN SAIGON.  /3/  THE VOUCHER CALLED FOR
PAYMENT IN AMERICAL CURRENCY AT PETITIONER'S HEADQUARTERS IN GALVESTON,
TEXAS.  ON FEBRUARY 18, RESPONDENT DEPARTED SAIGON BY AIR FOR
GALVESTON, WHERE HE WAS PAID IN CASH ON FEBRUARY 22. 

WHILE IN GALVESTON, RESPONDENT NOTIFIED THE UNION'S LOCAL OFFICE
THAT HE WAS DISSATISFIED WITH THE COMPANY'S REFUSAL TO HONOR CERTAIN
WAGE, PENALTY, AND MISCELLANEOUS CLAIMS.  /4/  THE RESPONDENT WAS
ADVISED TO CONTACT HIS UNION REPRESENTATIVE WITH DETAILS, BUT INSTEAD
OF DOING SO, HE BROUGHT THIS SUIT IN THE DISTRICT COURT UNDER ITS
ADMIRALTY AND MARITIME JURISDICTION, 28 U.S.C. 1333.  RESPONDENT SOUGHT
RECOVERY ON THREE CLAIMS WHICH SURVIVE HERE:  (A) OVERTIME FOR WORK
ALLEGEDLY PERFORMED PRIOR TO FEBRUARY 3, 1966; (B) OVERTIME FOR
WRONGFUL RESTRICTION TO THE SHIP FOR 11 DAYS BETWEEN ARRIVAL AT CAPE
ST. JACQUES ON FEBRUARY 3 AND TYPING UP IN THE PORT OF SAIGON ON
FEBRUARY 13 DESPITE REQUESTS FOR SHORE LEAVE; /5/  (C) A STATUTORY
PENALTY OF $254.95 UNDER 46 U.S.C. 596, /6/  BASED ON TWO DAYS' PAY FOR
EACH DAY BETWEEN FEBRUARY 3 AND FEBRUARY 22, WHEN RESPONDENT WAS PAID
AT GALVESTON.  PETITIONER ANSWERED BY ALLEGING THE FAILURE OF
RESPONDENT TO EXHAUST THE GRIEVANCE AND ARBITRATION PROCEDURES OF THE
COLLECTIVE-BARGAINING AGREEMENT.  /7/  PETITIONER CONTENDS THAT (A) THE
MASTER DID NOT AUTHORIZE ANY OVERTIME WORK BEFORE FEBRUARY 3; (B) THE
RESTRICTION TO SHIP BETWEEN FEBRUARY 3 AND FEBRUARY 13 WAS DUE TO THE
FAILURE OF SAIGON PORT OFFICIALS TO LIFT QUARANTINE RESTRICTIONS, AND
(C) BECAUSE RESPONDENT WAS PAID PROMPTLY BY VOUCHER AT THE AMERICAN
CONSULATE ON THE DAY OF DISCHARGE, NO PENALTY OBTAINS. 

THE COLLECTIVE-BARGAINING AGREEMENT PROVIDES IN RELEVANT PART THAT
(A) NO OVERTIME WORK SHALL BE PERFORMED WITHOUT THE AUTHORIZATION OF
THE MASTER (ART. IV, SEC. 2); (B) WITH EXCEPTIONS NOT RELEVANT HERE, NO
OVERTIME WILL BE PAID FOR RESTRICTION TO SHIP WHEN SUCH RESTRICTION IS
DUE TO THE REGULATION OF GOVERNMENT AUTHORITIES (ART. III, SEC. 2), AND
(C) A SHIP SHALL NOT BE DEEMED TO HAVE ARRIVED IN PORT WHILE IT IS
AWAITING QUARANTINE CLEARANCE (ART. III, SEC. 1(C)). 

THE MERITS OF RESPONDENT'S NONSTATUTORY CLAIMS DEPAND ENTIRELY ON
INTERPRETATION AND APPLICATION OF THE BARGAINING AGREEMENT. 
SPECIFICALLY, THE THRESHOLD QUESTIONS INVOLVED ARE (A) WHETHER THE
RESPONDENT PERFORMED OVERTIME WORK WITH THE AUTHORIZATION OF THE
MASTER; (B) WHETHER THE CREW WAS CONFINED TO SHIP BECAUSE OF THE
ACTIONS OF GOVERNMENT OFFICIALS AND IF SO WHETHER RESPONDENT CAN BASE
HIS CLAIM ON THE ALLEGED FAILURE OF THE MASTER TO SHOW THE REQUIRED
DOCUMENTS TO THE CREW, AND (C) WHETHER THE SHIP HAD ARRIVED "IN PORT"
ON FEBRUARY 3, SO THAT RESPONDENT WAS ENTITLED TO DISCHARGE AND
PAYMENT, OR, IN THE ALTERNATIVE, WHETHER THE FACT THAT RESPONDENT'S
SHIPPING ARTICLES EXPIRED BY THEIR TERMS ON FEBRUARY 2 ENTITLED HIM TO
DISCHARGE AGAINST PETITIONER'S CLAIM THAT WHERE THE CARGO IS STILL
ABOARD IN SUCH CASES THE ARTICLES ARE AUTOMATICALLY EXTENDED.  AN
ADDITONAL QUESTION IS WHETHER RESPONDENT WAS "PAID" ON FEBRUARY 17 OR
FEBRUARY 22, SINCE THE PENALTY ACCRUES ONLY UNTIL THE DATE OF PAYMENT. 

MOST IMPORTANTLY, FOR PURPOSES OF THIS CASE, IT IS CLEAR THAT THE
QUESTION OF WHETHER RESPONDENT WAS ENTITLED TO THE STATUTORY PENALTY
DEPANDS ENTIRELY ON A RESOLUTION OF THESE QUESTIONS.  IF IT DEVELOPS
THAT PETITIONER HAS PAID RESPONDENT ALL WAGES DUE HIM IN A TIMELY
MANNER, THE STATUTORY PENALTY CLAIM ALSO DISAPPEARS. 

THESE QUESTIONS ARE PARTICULARLY WITHIN THE COMPETENCE OF THE
CONTRACTUALLY ESTABLISHED GRIEVANCE PROCEDURE OF THE COLLECTIVE
BARGAINING AGREEMENT.  THEY ARE ALL QUESTIONS OF FACT OR INTERPRETATION
OF VARIOUS PROVISIONS OF THE AGREEMENT.  THERE IS NOT THE SLIGHTEST
INDICATION OF CONTENTION THAT THE GRIEVANCE MACHINERY WOULD BE UNABLE
TO DETERMINE THESE QUESTIONS, OR THAT IT WOULD BE INFERIOR TO A FEDERAL
COURT IN SO DOING.  IT IS CLEAR FROM THE FACE OF THE CLAIMS THAT A
FAMILIARITY WITH THE CUSTOMS AND PRACTICES OF SHIPPING WOULD BE
DISTINCTLY HELPFUL IN ASSESSING THE VALIDITY OF THE CLAIMS.  THIS
FAMILIARITY IS, OF COURSE, ONE OF THE PRIME ATTRIBUTES OF AN
ARBITRATOR.  AS THE COURT SAID IN UNITED STEELWORKERS V. WARRIOR & GULF
NAVIGATION CO., 363 U.S. 574, 582 (1960): 

"THE LABOR ARBITRATOR IS USUALLY CHOSEN BECAUSE OF THE PARTIES'
CONFIDENCE IN HIS KNOWLEDGE OF THE COMMON LAW OF THE SHOP AND THEIR
TRUST IN HIS PERSONAL JUDGMENT TO BRING TO BEAR CONSIDERATIONS WHICH
ARE NOT EXPRESSED IN THE CONTRACT AS CRITERIA FOR JUDGMENT.  THE
PARTIES EXPECT THAT HIS JUDGMENT OF A PARTICULAR GRIEVANCE WILL REFLECT
NOT ONLY WHAT THE CONTRACT SAYS BUT, INSOFAR AS THE COLLECTIVE
BARGAINING AGREEMENT PERMITS, SUCH FACTORS AS THE EFFECT UPON
PRODUCTIVITY OF A PARTICULAR RESULT, ITS CONSEQUENCE TO THE MORALE OF
THE SHOP, HIS JUDGMENT WHETHER TENSIONS WILL BE HEIGHTENED OR
DIMINISHED.  FOR THE PARTIES'  OBJECTIVE IN USING THE ARBITRATION
PROCESS IS PRIMARILY TO FURTHER THEIR COMMON GOAL OF UNINTERRUPTED
PRODUCTION UNDER THE AGREEMENT, TO MAKE THE AGREEMENT SERVE THEIR
SPECIALIZED NEEDS.  THE ABLEST JUDGE CANNOT BE EXPECTED TO BRING THE
SAME EXPERIENCE AND COMPETENCE TO BEAR UPON THE DETERMINATION OF A
GRIEVANCE, BECAUSE HE CANNOT BE SIMILARLY INFORMED." 

IN TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448 (1957), IT WAS HELD
THAT FEDERAL COURTS HAVE JURISDICTION TO SPECIFICALLY ENFORCE THE
ARBITRATION PROVISIONS OF THE COLLECTIVE-BARGAINING AGREEMENT.  AND IT
HAS BEEN CLEAR AT LEAST SINCE REPUBLIC STEEL CORP. V. MADDOX, 379 U.S.
650 (1965), THAT ABSENT EXTRAORDINARY CIRCUMSTANCES NOT ALLEGED HERE,
CONTRACTUAL GRIEVANCE PROCEDURES MUST BE EXHAUSTED BEFORE SUIT CAN BE
BROUGHT.  /8/ 

THE COLLECTIVE AGREEMENT REVEALS THAT THE PARTIES INTENDED ALL
DISPUTES AND GRIEVANCES, NOT MERELY THOSE BASED ON THE CONTRACT, TO BE
RESOLVED IF POSSIBLE THROUGH THE CONTRACTUAL PROCEDURE.  ARTICLE II
PROVIDES A THREE-STEP ON-BOARD GRIEVANCE PROCEDURE FOR "(ANY EMPLOYEE
WHO FEELS THAT HE HAS BEEN UNJUSTLY TREATED OR BEEN SUBJECTED TO AN
UNFAIR CONSIDERATION."  IF NO SATISFACTORY SOLUTION IS REACHED ON
BOARD, THE PARTIES ARE DIRECTED TO PROCEED "THROUGH THE GRIEVANCE
MACHINERY OF THIS AGREEMENT AT THE PORT WHERE SHIPPING ARTICLES ARE
CLOSED OR AT A CONTINENTAL AMERICAN PORT WHERE THE COMPANY MAINTAINS AN
OPERATING OFFICE AND THE UNION MAINTAINS AN AGENT."  PROVISIONS ARE
MADE FOR ANY PARTY TO A "DISPUTE OR GRIEVANCE" TO SEEK EXPEDITIOUS
DETERMINATION FROM THE ARBITRATOR.  ART. XII, SEC. 3.  THE PARTIES MADE
NO PROVISION WHATEVER FOR EXCEPTING STATUTORY PENALTY CLAIMS FROM THE
GRIEVANCE MACHINERY.  PRIOR DECISIONS UNMISTAKABLY LIMIT THE ROLE OF
THE COURTS TO DETERMINING WHETHER A DISPUTE IS ARGUABLY COVERED UNDER
THE ARBITRATION CLAUSE.  "IN THE ABSENCE OF ANY EXPRESS PROVISION
EXCLUDING A PARTICULAR GRIEVANCE FROM ARBITRATION, WE THINK ONLY THE
MOST FORCEFUL EVIDENCE OF A PURPOSE TO EXCLUDE THE CLAIM FROM
ARBITRATION CAN PREVAIL, PARTICULARLY WHERE, AS HERE, THE EXCLUSION
CLAUSE IS VAGUE AND THE ARBITRATION CLAUSE QUITE BROAD."  UNITED
STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., SUPRA, AT 584-585. 

NOR UNTIL NOW HAS THERE BEEN ANY PRINCIPLE THAT REQUIRES CONTRACT
RIGHTS TO BE RESOLVED INTERNALLY BUT DIRECTS STATUTORILY CREATED
REMEDIES TO BE PRESENTED TO THE COURT, AT LEAST WHERE, AS HERE, THE
AVAILABILITY OF THE STATUTORY REMEDY RESTS ON DISPUTED ISSUES THAT ARE
COGNIZABLE UNDER THE ARBITRATION CLAUSE.  IN FACT, THIS COURT AND LOWER
FEDERAL COURTS HAVE ENDORSED THE SUITABILITY OF ARBITRATION TO RESOLVE
FEDERALLY CREATED RIGHTS.  IN WILKO V. SWAN, 346 U.S. 427 (1953), THE
COURT EXPRESSED "HOPE FOR (ARBITRATION'S) USEFULNESS . . . IN
CONTROVERSIES BASED ON STATUTES . . . ."  ID., AT 432.  AND COURTS OF
APPEALS BOTH BEFORE AND AFTER PASSAGE OF SEC. 301 HAVE REQUIRED THAT
FAIR LABOR STANDARDS ACT EMPLOYEES' CLAIMS FOR LIQUIDATED DAMAGES UNDER
29 U.S.C. 216(B) FOR FAILURE TO PAY OVERTIME WAGES BE REFERRED TO
CONTRACTUAL GRIEVANCE PROCEDURES BEFORE BEING PRESENTED TO THE COURT. 
DONAHUE V. SUSQUEHANNA COLLIERIES CO., 138 F.2D 3 (CA3 1943); EVANS V.
HUDSON COAL CO., 165 F.2D 970 (CA3 1948); BECKLEY V. TEYSSIER, 332 F.2D
495 (CA9 1964).  CF. FALLICK V. KEHR, 369 F.2D 899 (CA2 1966); OLD
DUTCH FARMS V. LOCAL 584, I.B.T., 243 F.SUPP.  246 (EDNY 1965); UNITED
STATES STEEL CORP. V. SEAFARERS, 237 F.SUPP.  529(ED PA. 1965).  THAT
THE QUESTION OF PENALTIES OR LIQUIDATED DAMAGES SHOULD BE REFERRED IN
THE FIRST INSTANCE TO APPLICABLE GRIEVANCE PROCEDURES IS ESPECIALLY
PROPER WHERE, AS HERE, THERE ARE ALSO UNDERLYING WAGE CLAIMS BASED ON
FACTUAL DISPUTES, AND WHOSE RESOLUTION WILL DETERMINE WHETHER, AND TO
WHAT EXTENT, THE PENALTY IS DUE.  NEITHER DO I SEE ANY REASON WHY THE
ISSUE OF THE PENALTY WOULD BE UNSUITABLE FOR ARBITRATION EVEN IF THE
OWNER PAID OFF ALL DISPUTED UNDERLYING WAGE CLAIMS, LEAVING ONLY THE
QUESTION OF THE STATUTORY PENALTY.  ON THE CONTRARY, IF RESPONDENT'S
CLAIMS ARE NOT REACHED BY HIS PROMISE TO ARBITRATE, OR IF THE PROMISE
TO ARBITRATE IS UNENFORCEABLE, A MASTER OR OWNER COULD PAY OFF WAGES IN
FULL, BUT GROSSLY LATE, SECURE IN THE KNOWLEDGE THAT THE OBLIGATION TO
PAY THE PENALTY WOULD NOT BE SUSCEPTIBLE OF THE QUICK AND INFORMAL
ARBITRATION PROCESS, BUT MUST AWAIT THE ATTENTION OF A FEDERAL DISTRICT
COURT WHICH MAY BE THOUSANDS OF MILES AWAY.  OVERREACHING AND DELAY
WERE PRECISELY THE EVILS THAT SEC. 596 WAS DESIGNED TO REACH. 
MAVROMATIS V. UNITED GREEK SHIPOWNERS CORP., 179 F.2D 310 (CA1 1950). 

THE COURT TRIES TO AVOID THIS PROBLEM BY HOLDING THAT GRIEVANCE
PROCEDURES ARE AVAILABLE TO THE SEAMAN TO PURSUE IF HE CHOOSES.  THE
EFFECT OF THIS IS TO HOLD CONTRACTUAL REMEDIES ENFORCEABLE BY THE
EMPLOYEE BUT NOT BY THE EMPLOYER.  THIS IS NOT ONLY A CURIOUS
APPLICATION OF SEC. 301 AND CONTRACT PRINCIPLES BUT AN UNWISE DEPARTURE
FROM PAST CASES.  IN REPUBLIC STEEL CORP. V. MADDOX, SUPRA, THE COURT
FORESAW THAT UNDER SUCH CIRCUMSTANCES THE EMPLOYER, "TO LIMIT THE MODES
OF REDRESS THAT COULD BE USED AGAINST HIM," WOULD SIMPLY INSIST IN
FUTURE BARGAINING THAT SUITS FOR OVERTIME PAY /9/  BE ELIMINATED FROM
THE GRIEVANCE PROCEDURE.  THE COURT WAS ENTIRELY CORRECT IN SURMISING
THAT "(THE UNION WOULD HARDLY FAVOR THE ELIMINATION, FOR IT IS IN THE
UNION'S INTEREST TO AFFORD COMPREHENSIVE PROTECTION TO THOSE IT
REPRESENTS, TO PARTICIPATE IN INTERPRETATIONS OF THE CONTRACT, AND TO
HAVE AN ARBITRATOR RATHER THAN A COURT DECIDE SUCH QUESTIONS . . . ." 
379 U.S.,AT 656. 

NOTHING IN THE WORDS OF THE STATUTE WARRANTS DISPENSING WITH
CONTRACTUAL PROCEDURES.  SECTION 596 PROVIDES THAT THE PENALTY "SHALL
BE RECOVERABLE AS WAGES IN ANY CLAIM MADE BEFORE THE COURT."  THE
STATUTE ON ITS FACE MAKES THE PENALTY A WAGE CLAIM; IT WOULD IN NO WAY
BE IN DEROGATION OF THE STATUTE TO REQUIRE THIS CLAIM TO BE PRESENTED
LIKE ANY OTHER WAGE CLAIM.  UNDER THE PRINCIPLES OF REPUBLIC STEEL
CORP. V. MADDOX, SUPRA, THIS MEANS THAT THE INTERNAL REMEDIES MUST
FIRST BE EXHAUSTED. 

EVEN ASSUMING, WITHOUT CONCEDING, THAT SEC. 596 PROVIDES A DIRECT
ROUTE TO FEDERAL COURTS ON PENALTY CLAIMS, SEC. 301 SHOULD AT LEAST
REQUIRE THAT THE CONTRACTUAL BASES FOR THE PENALTY CLAIM BE SETTLED BY
CONTRACTUAL METHODS BEFORE PENALTY CLAIMS MAY BE ADJUDICATED BY THE
COURTS.  THE PENALTY STATUTE IS A DIRECT DESCENDANT OF 1 STAT. 133,
PASSED IN 1790.  SECTION 596 HAS EXISTED UNCHANGED SINCE 1915.  SECTION
301, ON THE OTHER HAND, WAS ENACTED IN 1947 AS A FARREACHING MEASURE
DESIGNED TO SECURE THE ENFORCEMENT OF ARBITRATION AGREEMENTS IN THE
FEDERAL COURTS IN THE BELIEF THAT "INDUSTRIAL PEACE CAN BE BEST
OBTAINED ONLY IN THAT WAY."  TEXTILE WORKERS V. LINCOLN MILLS, SUPRA,
AT 455.  SECTION 301 DID AWAY WITH COMMON-LAW RULES AGAINST ENFORCING
EXECUTORY PROMISES TO ARBITRATE, AND THERE SHOULD BE NO RELUCTANCE TO
ACCOMMODATE SEC. 596 AND THE POLICY OF SEC. 301 BY WITHHOLDING JUDICIAL
RELIEF UNTIL CONTRACTUAL REMEDIES ARE EXHAUSTED.     IT SHOULD ALSO BE
RECALLED THAT EVEN THOUGH A DISPUTE ALSO INVOLVES AN UNFAIR LABOR
PRACTICE OR A REPRESENTATION OR JURISDICTIONAL DISPUTE IT IS
NEVERTHELESS NOT REMOVED FROM THE ARBITRAL PROCESS.  SMITH V. EVENING
NEWS ASSN., 371 U.S. 195 (1962); CAREY V. WESTINGHOUSE CORP., 375 U.S.
261 (1964).  /10/  BOTH THE NATIONAL LABOR RELATIONS BOARD AND THIS
COURT HAVE SHOWN A HIGH REGARD FOR THE INFORMED OPINION OF THE
ARBITRATOR IN SUCH CASES.  INTERNATIONAL HARVESTER CO., 138 N.L.R.B.
923, 925-926 (1962); CAREY V. WESTINGHOUSE CORP., SUPRA, AT 272. 

MOREOVER, PRIOR TO THE PASSAGE OF SEC. 301, NONMARITIME EMPLOYEES,
LIKE SEAMEN, COULD GO TO COURT TO RESOLVE DISPUTES OVER THE MEANING OF
THE COLLECTIVE-BARGAINING AGREEMENT.  GIVEN THE BASIS FOR FEDERAL
JURISDICTION, THEY COULD GO TO FEDERAL COURT.  IN THIS RESPECT THEY
WERE NO DIFFERENT FROM SEAMEN.  WHEN SEC. 301 PROVIDED FOR THE
ENFORCEMENT OF ARBITRATION AGREEMENTS AND, AS INTERPRETED IN MADDOX,
FOR EXHAUSTION OF INTERNAL REMEDIES, THERE IS NOT THE SLIGHTEST
INDICATION THAT CONGRESS INTENDED THAT SEAMEN SHOULD BE TREATED ANY
DIFFERENTLY FROM THEIR NONMARITIME COUNTERPARTS. 

FINALLY, IT IS PERTIMENT TO RECALL THE WORDS OF THE DISTRICT COURT
IN THE INSTANT CASE IN GRANTING SUMMARY JUDGMENT TO THE PETITIONER: 

     "THE POLICY ESTABLISHED BY THE CASES REFERRED TO, THAT MATTERS

  OF THIS SORT SHOULD BE LEFT TO PROCEDURES SET UP BETWEEN THE

  UNION AND THE EMPLOYER, IS, IN THE OPINION OF THE COURT, A MOST

  IMPORTANT POLICY LEST THIS COURT BE INUNDATED WITH SMALL CLAIMS

OF THE TYPE WHICH HAS BEEN PRESENTED TO THE COURT TODAY."  APP.

  55A. 

IN SHORT, THE COURT TODAY MAKES AN UNNECESSARY AND ILL-ADVISED
DETOUR AROUND THE BODY OF ARBITRATION LAW DEVELOPED BY CONGRESS AND
THIS COURT.  ITS REASONS FOR DOING SO, IN MY OPINION, COMPORT WITH
NEITHER THE LANGUAGE OF THE STATUTE NOR CONSIDERATIONS OF SOUND LABOR
AND MARITIME POLICY. 

/1/  BRIEF OF RESPONDENT IN OPPOSITION TO CERTIORARI 1-2. 

/2/  ID., AT 2.  ARTICLE III, SEC. 2, OF THE BARGAINING AGREEMENT
PROVIDES OVERTIME PAY FOR RESTRICTION TO SHIP EXCEPT WHEN SHORE LEAVE
IS PREVENTED BY ORDER OF FOREIGN GOVERNMENTS.  IN SUCH CASES, THE
BARGAINING AGREEMENT REQUIRES THE COMPANY TO "PRODUCE A COPY OF THE
GOVERNMENT RESTRICTION ORDER WHEN THE CREW IS PAID OFF."  RESPONDENT
NOW SEEMS TO CONCEDE THAT THE GOVERNMENT'S FAILURE TO GRANT PRATIQUE
PREVENTED SHORE LEAVE, BUT ALLEGES THAT "THE CAPTAIN FAILED TO CONFORM
TO THE PROCEDURES REQUIRED TO SHOW THE CREW THAT PRATIQUE (CLEARANCE)
WAS REFUSED BY THE S. VITEMAN GOVERMENT (ART. III, SEC. 2 OF AGREEMENT
. . .)."  RESPONDENT SEEMS TO IMPLY, THOUGH THIS IS FAR FROM CLEAR,
THAT THE ALLEGED FAILURE OF THE CAPTAIN TO EXHIBIT THE ORDER RESTORES
RESPONDENT'S RIGHT TO OVERTIME WAGES. 

/3/  PETITIONER ASSERTS THAT "LOCAL CURRENCY RESTRICTIONS" PREVENTED
PAYMENT IN AMERICAN CURRENCY IN SOUTH VIETNAM, AND THAT USE OF VOUCHERS
WAS A "CUSTOMARY AND ACCEPTED" MEANS OF PAYMENT IN FOREIGN PORTS. 

/4/  IN ADDITION TO THE THREE CLAIMS LISTED BELOW, RESPONDENT ALSO
SOUGHT RECOVERY IN THE FEDERAL DISTRICT COURT FOR THE DIFFERENCE
BETWEEN COACH AIR FARE AND FIRST-CLASS AIR FARE TO WHICH HE WAS
ENTITLED UNDER THE CONTRACT, $6.50 AS HIS SHARE OF A LIMOUSINE FROM
HOUSTON AIRPORT TO GALVESTON, AND $8.50 EXCESS BAGGAGE CHARGE.  THE AIR
FARE CLAIM WAS SETTLED DIRECTLY WITH THE AIRLINE, AND RESPONDENT
APPARENTLY ABANDONED THE OTHER TWO CLAIMS DURING THE COURSE OF THE
PROCEEDINGS. 

/5/  SEE N. 2, SUPRA. 

/6/  "THE MASTER OR OWNER OF ANY VESSEL MAKING COASTING VOYAGES
SHALL PAY TO EVERY SEAMAN HIS WAGES WITHIN TWO DAYS AFTER TERMINATION
OF THE AGREEMENT UNDER WHICH HE WAS SHIPPED, OR AT THE TIME SUCH SEAMAN
IS DISCHARGED, WHICHEVER FIRST HAPPENS; AND IN CASE OF VESSELS MAKING
FOREIGN VOYAGES, OR FROM A PORT ON THE ATLANTIC TO A PORT ON THE
PACIFIC, OR VICE VERSA, WITHIN TWENTY-FOUR HOURS AFTER THE CARGO HAS
BEEN DISCHARGED, OR WITHIN FOUR DAYS AFTER THE SEAMAN HAS BEEN
DISCHARGED, WHICHEVER FIRST HAPPENS; AND IN ALL CASES THE SEAMAN SHALL
BE ENTITLED TO BE PAID AT THE TIME OF HIS DISCHARGE ON ACCOUNT OF WAGES
A SUM EQUAL TO ONE-THIRD PART OF THE BALANCE DUE HIM.  EVERY MASTER OR
OWNER WHO REFUSES OR NEGLECTS TO MAKE PAYMENT IN THE MANNER
HEREINBEFORE MENTIONED WITHOUT SUFFICIENT CAUSE SHALL PAY TO THE SEAMAN
A SUM EQUAL TO TWO DAYS' PAY FOR EACH AND EVERY DAY DURING WHICH
PAYMENT IS DELAYED BEYOND THE RESPECTIVE PERIODS, WHICH SUM SHALL BE
RECOVERABLE AS WAGES IN ANY CLAIM MADE BEFORE THE COURT; BUT THIS
OF WHICH ARE ENTITLED TO SHARE IN THE PROFITS OF THE CRUISE OR VOYAGE. 
THIS SECTION SHALL NOT APPLY TO FISHING OR WHALING VESSELS OR YACHTS." 

/7/

  "GRIEVANCES 

"SECTION 1.  DEPARTMENT SPOKESMEN.  THE UNLICENSED PERSONNEL OF EACH
DEPARTMENT EMPLOYED ON BOARD VESSELS OPERATED BY THE COMPANY SHALL HAVE
THE RIGHT TO DESIGNATE A SPOKESMAN BY AND FROM THAT DEPARTMENT.  ANY
EMPLOYEE WHO FEELS THAT HE HAS BEEN UNJUSTLY TREATED OR BEEN SUBJECTED
TO AN UNFAIR CONSIDERATION SHALL ENDEAVOR TO HAVE SAID GRIEVANCE
ADJUSTED BY HIS RESPECTIVE DESIGNATED SPOKESMAN, IN THE FOLLOWING
MANNER: 

"FIRST-- PRESENTATION OF THE COMPLAINT TO HIS IMMEDIATE SUPERIOR. 

"SECOND-- APPEAL TO THE HEAD OF THE DEPARTMENT IN WHICH THE EMPLOYEE
INVOLVED SHALL BE EMPLOYED. 

"THIRD-- APPEAL DIRECTLY TO THE MASTER. 

"SECTION 2.  GRIEVANCE MACHINERY.  IF THE COMPLAINT CANNOT BE
SETTLED TO THE MUTUAL SATISFACTION OF THE EMPLOYEE AND DEPARTMENT HEAD
OR THE MASTER, THE DECISION OF THE MASTER SHALL BE SUPREME AT SEA AND
IN FOREIGN PORTS, AND UNTIL THE VESSEL ARRIVES AT THE PORT WHERE
SHIPPING ARTICLES ARE CLOSED.  SUCH COMPLAINT SHALL BE SETTLED THROUGH
THE GRIEVANCE MACHINERY OF THIS AGREEMENT AT THE POST WHERE SHIPPING
ARTICLES ARE CLOSED OR AT A CONTINENTAL AMERICAN PORT WHERE THE COMPANY
MAINTAINS AN OPERATING OFFICE AND THE UNION MAINTAINS AN AGENT." 

        .          .          .          .

        "ARTICLE XII

        "ARBITRATION 

"SECTION 1.  SETTLEMENT OF DISPUTES PRIOR TO ARBITRATION.  IN CASE A
DISPUTE ARISES OVER THE INTERPRETATION OF ANY OF THE PROVISIONS OF THIS
AGREEMENT, WHETHER THE SAID DISPUTE ORIGINATES ON BOARD SHIP OF ASHORE,
THE UNION AGREES TO TAKE THE MATTER UP WITH THE COMPANY AND MAKE EVERY
EFFORT TO ADJUST THE SAID DISPUTE.  IN THE EVENT THAT NO AMICABLE AND
SATISFACTORY ADJUSTMENT CAN BE MADE BETWEEN THE UNION AND THE COMPANY
AND THE QUESTION IN DISPUTE IS DEEMED TO BE SUFFICIENTLY IMPORTANT TO
EITHER PARTY, THE UNION OR THE COMPANY MAY PRESENT THE QUESTIONS
DISPUTED TO THE DISPUTES BOARD FOR ARBITRATION AS PROVIDED HEREIN. 

.          .          .          . 

"SECTION 3.  NOTWITHSTANDING ANY OF THE FOREGOING, SHOULD A DISPUTE
OR GRIEVANCE ARISE UNDER THIS AGREEMENT WHICH, IN THE OPINION OF THE
PRESIDENT OF THE AMERICAN MERCHANT MARINE INSTITUTE OR HIS DESIGNEEE OR
THE PRESIDENT OF THE NATIONAL MARITIME UNION OR HIS DESIGNEE, REQUIRES
EXPEDITIOUS DETERMINATION, SUCH PART MAY WAIVE THE GRIEVANCE AND
ARBITRATION PROVISIONS REFERRED TO ABOVE AND REQUEST THAT THE DISPUTE
OR GRIEVANCE BE REFERRED TO ARBITRATION AS FOLLOWS: 

"(A) THE DISPUTE OR GRIEVANCE SHALL BE ASSERTED BY NOTICE IN WRITING
TO THE OTHER PARTY AND TO THEODORE W. KHEEL, THE ARBITRATOR UNDER THIS
AGREEMENT.  SUCH NOTICE SHALL CONTAIN A SUMMARY OF THE DISPUTE OR
GRIEVANCE AND THE REASONS FOR REQUESTING A WAIVER OF THE CONTRACT
GRIEVANCE PROCEDURE.  FOLLOWING THE RECEIPT OF SUCH REQUEST THE
ARBITRATOR OR HIS DESIGNEE SHALL, UPON THE BASIS OF THE INFORMATION
SUBMITTED AND ANY FURTHER INFORMATION HE MAY HAVE REQUESTED FROM EITHER
PART, DETERMINE WHETHER THE MATTER SHOULD BE SUBMITTED TO ARBITRATION
OR REFERRED BACK FOR PROCESSING UNDER THE REGULAR GRIEVANCE MACHINERY. 
IN THE LATTER CASE, THE ARBITRATOR SHALL NOTIFY BOTH PARTIES OF HIS
DECISION AND THE GRIEVANCE SHALL BE PROCESSED AS PROVIDED IN SECTIONS 1
AND 2 OF THIS ARTICLE.  IF THE ARBITRATOR OR HIS DESIGNEE SHOULD DECIDE
THAT THE REQUEST TO WAIVE THE REGULAR GRIEVANCE MACHINERY SHOULD BE
GRANTED, HE SHALL SO NOTIFY BOTH PARTIES AND SCHEDULE THE MATTER FOR
PROMPT ARBITRATION." 

  .          .          .          . 

/8/  THE LANGUAGE OF THE COURT IN THAT DECISION IS PERTINENT HERE:
"CONGRESS HAS EXPRESSLY APPROVED CONTRACT GRIEVANCE PROCEDURES AS A
PREFERRED METHOD FOR SETTLING DISPUTES AND STABILIZING THE 'COMMON LAW'
OF THE PLANT . . . . UNION INTEREST IN PROSECUTING EMPLOYEE GRIEVANCES
IS CLEAR.  SUCH ACTIVITY COMPLEMENTS THE UNION'S STATUS AS EXCLUSIVE
BARGAINING REPRESENTATIVE BY PERMITTING IT TO PARTICIPATE ACTIVELY IN
THE CONTINUING ADMINISTRATION OF THE CONTRACT.  IN ADDITION,
CONSCIENTIOUS HANDLING OF GRIEVANCE CLAIMS WILL ENHANCE THE UNION'S
PRESTIGE WITH EMPLOYEES.  EMPLOYER INTERESTS, FOR THEIR PART, ARE
SERVED BY LIMITING THE CHOICE OF REMEDIES AVAILABLE TO AGGRIEVED
EMPLOYEES.  AND IT CANNOT BE SAID, IN THE NORMAL SITUATION, THAT
CONTRACT GRIEVANCE PROCEDURES ARE INADEQUATE TO PROTECT THE INTERESTS
OF AN AGGRIEVED EMPLOYEE UNTIL THE EMPLOYEE HAS ATTEMPTED TO IMPLEMENT
THE PROCEDURES AND FOUND THEM SO. 

"A CONTRARY RULE WHICH WOULD PERMIT AN INDIVIDUAL EMPLOYEE TO
COMPLETELY SIDESTEP AVAILABLE GRIEVANCE PROCEDURES IN FAVOR OF A
LAWSUIT HAS LITTLE TO COMMEND IT.  IN ADDITION TO CUTTING ACROSS THE
INTERESTS ALREADY MENTIONED, IT WOULD DEPRIVE EMPLOYER AND UNION OF THE
ABILITY TO ESTABLISH A UNIFORM AND EXCLUSIVE METHOD FOR ORDERLY
SETTLEMENT OF EMPLOYEE GRIEVANCES.  IF A GRIEVANCE PROCEDURE CANNOT BE
MADE EXCLUSIVE, IT LOSES MUCH OF ITS DESIRABILITY AS A METHOD OF
SETTLEMENT.  A RULE CREATING SUCH A SITUTATION 'WOULD INEVITABLY EXERT
A DISRUPTIVE INFLUENCE UPON BOTH THE NEGOTIATION AND ADMINISTRATION OF
COLLECTIVE AGREEMENTS.'"  379 U.S.,AT 653. 

/9/  THOUGH MADDOX INVOLVED A CLAIM FOR SEVERANCE RATHER THAN
OVERTIME PAY, "(GRIEVANCES DEPENDING ON SEVERANCE CLAIMS ARE NOT
CRITICALLY UNLIKE OTHER TYPES OF GRIEVANCES."  379 U.S.,AT 656. 

/10/  IN CAREY V. WESTINGHOUSE CORP., SUPRA, AT 272, SMITH V.
EVENING NEWS, SUPRA, WAS INTERPRETED AS APPROVING "RESORT TO A TRIBUNAL
OTHER THAN THE BOARD" EVEN THOUGH THE TRIBUNAL IN SMITH WAS A STATE
COURT.  THERE WAS NO INTERNAL GRIEVANCE MACHINERY ESTABLISHED IN THE
COLLECTIVE AGREEMENT IN SMITH. 

GEORGE W. SULLIVAN ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

I. DUKE AVNET ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :















NLRB V. OPERATING ENGINEERS, 400 U.S. 297 


       NATIONAL LABOR RELATIONS BOARD V. LOCAL 825, INTERNATIONAL

           UNION OF OPERATING ENGINEERS, AFL-CIO

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 40.  ARGUED NOVEMBER 18, 1970-- DECIDED JANUARY 12,
1971

/0/ 


A GENERAL CONTRACTOR (BURNS) SUBCONTRACTED CONSTRUCTION WORK TO THREE
COMPANIES, ALL OF WHICH EMPLOYED OPERATING ENGINEERS WHO BELONGED TO
RESPONDENT UNION.  THAT UNION, DISPUTING THE ASSIGNMENT BY ONE OF THE
SUBECONTRACTORS (WHITE) OF AN OPERATION INVOLVING AN ELECTRIC WELDING
MACHINE TO MEMBERS OF ANOTHER LABOR ORGANIZATION, ADVISED BURNS THAT
ALL RESPONDENT'S MEMBERS ON THE JOBSITE WOULD STRIKE UNLESS BURNS BOUND
ITSELF AND THE SUBCONTRACTORS TO GIVE RESPONDENT JURISDICTION OVER
ELECTRIC WELDING MACHINES.  THE UNION WENT ON STRIKE WHEN THE EMPLOYERS
REFUSED TO ACCEDE TO ITS DEMANDS.  AFTER AN ARBITRATOR, TO WHOM BURNS
HAD REFERRED THE MATTER, HELD THAT THERE WAS NO REASON TO CHANGE THE
DISPUTED WORK ASSIGNMENT, RESPONDENT UNION PHYSICALLY PREVENTED
OPERATION OF THE WELDING MACHINE.  THEREAFTER AN UNFAIR LABOR PRACTICES
PROCEEDING AGAINST THE UNION WAS BROUGHT.  THE NATIONAL LABOR RELATIONS
BOARD (NLRB) FOUND THAT BY INDUCING THE SUBCONTRACTORS'  EMPLOYEES TO
STRIKE TO FORCE WHITE TO ASSIGN THE DISPUTED WORK TO THE OPERATING
ENGINEERS THE UNION HAD VIOLATED SEC. 8(B)(4)(D) OF THE NATIONAL LABOR
RELATIONS ACT, WHICH BARS STRIKES FOR THE OBJECT OF "FORCING . . . ANY
EMPLOYER TO ASSIGN PARTICULAR WORK TO EMPLOYEES IN A PARTICULAR LABOR
ORGANIZATION . . . RATHER THAN TO EMPLOYEES IN ANOTHER LABOR
ORGANIZATION . . . ."  THE NLRB ALSO FOUND THAT BY APPLYING ECONOMIC
PRESSURE ON THE NEUTRAL EMPLOYERS THE UNION HAD VIOLATED SEC.
8(B)(4)(B), WHICH BARS A UNION FROM EXERTING COERCIVE PRESSURE ON A
NEUTRAL OR SECONDARY EMPLOYER WHERE "AN OBJECT THEREOF" IS FORCING HIM,
INTER ALIA, "TO CEASE DOING BUSINESS WITH ANY OTHER PERSON."  ON THE
NLRB'S PETITION FOR ENFORCEMENT, THE COURT OF APPEALS SUSTAINED THE
NLRB'S SEC. 8(B)(4)(B) FINDING, CONCLUDING THAT THE UNION'S OBJECTIVE
WAS TO FORCE BURNS "TO USE ITS INFLUENCE WITH THE SUBCONTRACTOR TO
CHANGE THE SUBCONTRACTOR'S CONDUCT, NOT TO TERMINATE THEIR
RELATIONSHIP."  HELD: 

1.  IN SEEKING TO FORCE BURNS TO BIND ALL THE SUBCONTRACTORS ON THE
PROJECT TO A PARTICULAR FORM OF JOB ASSIGNMENTS AND IMPLYING BY ITS
DEMANDS THAT BURNS WOULD HAVE TO FORCE A CHANGE IN WHITE'S POLICY OR
TERMINATE WHITE'S CONTRACT CONTRACT, RESPONDENT UNION ENGAGED IN
FLAGRANT SECONDARY CONDUCT WITHIN THE PROHIBITION OF SEC. 8(B)(4)(B). 
PP. 302-305. 

2.  SECTION 8(B)(4)(D) IS NOT AN EXCLUSIVE REMEDY FOR SECONDARY
PRESSURE AIMED AT INVOLVING A NEUTRAL EMPLOYER IN A JURISDICTIONAL
DISPUTE OVER WORK ASSIGNMENTS MADE BY THE PRIMARY EMPLOYER.  PP. 305
306. 

410 F.2D 5, REVERSED AND REMANDED. 

MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BLACK, HARLAN, BRENNAN, WHITE, AND BLACKMUN, JJ., JOINED. 
DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH STEWART, J., JOINED,
POST, P. 306. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

IN THIS CAUSE WE ARE ASKED TO DETERMINE WHETHER STRIKES BY OPERATING
ENGINEERS AT THE SITE OF THE CONSTRUCTION OF A NUCLEAR POWER GENERATOR
PLANT AT OYSTER CREEK, NEW JERSEY, VIOLATED SEC. 8(B)(4)(B) /1/  OF THE
NATIONAL LABOR RELATIONS ACT.  ALTHOUGH THE NATIONAL LABOR RELATIONS
BOARD FOUND THE STRIKES TO BE IN VIOLATION OF THIS SECTION, THE COURT
OF APPEALS REFUSED TO ENFORCE THE BOARD'S ORDER.  /2/  WE BELIEVE THE
COURT OF APPEALS CONSTRUED THE ACT TOO NARROWLY.  ACCORDINGLY, WE
REVERSE AND REMAND THE CASE FOR CONSIDERATION OF THE PROPRIETY OF THE
BOARD'S ORDER. 

THE GENERAL CONTRACTOR FOR THE PROJECT, BURNS & ROE, INC.,
SUBCONTRACTED ALL OF THE CONSTRUCTION WORK TO THREE COMPANIES-- WHITE
CONSTRUCTION CO., CHICAGO BRIDGE & IRON CO., AND POIRIER & MCLANE CORP.
ALL THREE EMPLOYED OPERATING ENGINEERS WHO WERE MEMBERS OF LOCAL 825,
INTERNATIONAL UNION OF OPERATING ENGINEERS.  BUT WHITE, UNLIKE CHICAGO
BRIDGE AND POIRIER, DID NOT HAVE A COLLECTIVE-BARGAINING AGREEMENT WITH
LOCAL 825. 

IN THE LATTER PART OF SEPTEMBER 1965, WHITE INSTALLED AN ELECTRIC
WELDING MACHINE AND ASSIGNED THE JOB OF PUSHING THE BUTTONS THAT
OPERATED THE MACHINE TO MEMBERS OF THE IRONWORKERS UNION, WHO WERE TO
PERFORM THE ACTUAL WELDING.  UPON LEARNING OF THIS WORK ASSIGNMENT,
LOCAL 825'S JOB STEWARD AND ITS LEAD ENGINEER THREATENED WHITE WITH A
STRIKE IF OPERATING ENGINEERS WERE NOT GIVEN THE WORK.  WHITE, HOWEVER,
REFUSED TO MEET THE DEMAND.  ON SEPTEMBER 29, 1965, THE JOB STEWARD AND
LEAD ENGINEER MET WITH THE CONSTRUCTION MANAGER FOR BURNS, THE GENERAL
CONTRACTOR.  THEY INFORMED HIM THAT THE MEMBERS OF LOCAL 825 WORKING AT
THE JOBSITE HAD VOTED TO STRIKE UNLESS BURNS SIGNED A CONTRACT, WHICH
WOULD BE BINDING /3/  ON ALL THREE SUBCONTRACTORS AS WELL AS BURNS,
GIVING LOCAL 825 JURISDICTION OVER ALL POWER EQUIPMENT, INCLUDING
ELECTRIC WELDING MACHINES, OPERATED ON THE JOBSITE.  ON OCTOBER 1,
AFTER WHITE AND BURNS REFUSED TO ACCEDE TO THE DEMANDS, THE OPERATING
ENGINEERS EMPLOYED BY CHICAGO BRIDGE AND POIRIER AS WELL AS THOSE
EMPLOYED BY WHITE WALKED OFF THE JOB.  THEY STAYED OUT FROM 8 A.M. TO 1
P.M., RETURNING TO WORK WHEN NEGOTIATIONS OVER THEIR DEMANDS STARTED. 

ON OCTOBER 6, BURNS SUBMITTED THE WORK ASSIGNMENT DISPUTE TO THE
NATIONAL JOINT BOARD FOR THE SETTLEMENT OF JURISDICTIONAL DIPUTES FOR
THE CONSTRUCTION INDUSTRY.  /4/  THE SAME DAY, LOCAL 825 THREATENED
BURNS AND ALL THE SUBCONTRACTORS WITH ANOTHER WORK STOPPAGE UNLESS THE
CONTRACTS WERE SIGNED AND THE WORK TRANSFERRED TO THE OPERATING
ENGINEERS.  THE EMPLOYERS AGAIN REFUSED, AND THE OPERATING ENGINEERS
WALKED OFF THE PROJECT.  THIS STRIKE LASTED FROM OCTOBER 7 TO OCTOBER
11. 

ON OCTOBER 20, THE JOINT BOARD NOTIFIED THE PARTIES THAT THERE WAS
NO REASON TO CHANGE THE ASSIGNMENT OF THE DISPUTED WORK.  LOCAL 825 DID
NOT ACCEPT THIS RESOLUTION; AND WHEN THE WELDING MACHINE WAS STARTED ON
NOVEMBER 4, THE OPERATING ENGINEERS SURROUNDED THE MACHINE AND
PHYSICALLY PREVENTED ITS OPERATION.  ON NOVEMBER 8, THE NLRB REGIONAL
DIRECTOR OBTAINED FROM THE UNITED STATES DISTRICT COURT A TEMPORARY
INJUNCTION UNDER SEC. 10(L) /5/  OF THE ACT RESTRAINING THE UNION FROM
COERCING A CESSATION OF BUSINESS ON THE PROJECT OR TO COMPEL WHITE TO
CHANGE THE WORK ASSIGNMENT.  /6/ 

AN UNFAIR LABOR PRACTICE PROCEEDING AGAINST LOCAL 825 SUBSEQUENTLY
ENSUED.  THE BOARD FOUND THAT THE UNION HAD VIOLATED SEC. 8(B)(4)(D)
/7/  OF THE ACT BY INDUCING EMPLOYEES OF WHITE, CHICAGO BRIDGE, AND
POIRIER TO STRIKE TO FORCE WHITE TO TAKE THE DISPUTED WORK AWAY FROM
THE IRONWORKERS AND ASSIGN IT TO THE OPERATING ENGINEERS.  THE COURT OF
APPEALS' APPROVAL OF THIS FINDING IS NOT QUESTIONED HERE.  BUT THE
BOARD'S FINDING THAT LOCAL 825'S ENCOURAGEMENT OF THE CHICAGO BRIDGE
AND POIRIER EMPLOYEES TO STRIKE AND THE UNION'S COERCION OF BURNS
VIOLATED SEC. 8(B)(4)(B) OF THE ACT WAS NOT APPROVED BY THE COURT OF
APPEALS AND IS IN ISSUE HERE. 

        I 

CONGRESSIONAL CONCERN OVER THE INVOLVEMENT OF THIRD PARTIES IN LABOR
DISPUTES NOT THEIR OWN PROMPTED SEC. 8(B)(4)(B).  THIS CONCERN WAS
FOCUSED ON THE "SECONDARY BOYCOTT,"  /8/  WHICH WAS CONCEIVED OF AS
PRESSURE BROUGHT TO BEAR, NOT "UPON THE EMPLOYER WHO ALONE IS A PARTY
(TO A DISPUTE), BUT UPON SOME THIRD PARTY WHO HAS NO CONCERN IN IT"
/9/  WITH THE OBJECTIVE OF FORCING THE THIRD PARTY TO BRING PRESSURE ON
THE EMPLOYER TO AGREE TO THE UNION'S DEMANDS.  /10/ 

COMPROMISE AND ALSO REFLECTS A CONCERN WITH PROTECTING LABOR
ORGANIZATIONS' RIGHT TO EXERT LEGITIMATE PRESSURE AIMED AT THE EMPLOYER
WITH WHOM THERE IS A PRIMARY DISPUTE.  /11/  THIS PRIMARY ACTIVITY IS
PROTECTED EVEN THOUGH IT MAY SERIOUSLY AFFECT NEUTRAL THIRD PARTIES. 
STEELWORKERS (CARRIER CORP.) V. NLRB, 376 U.S. 492, 502 (1964);
ELECTRICAL WORKERS (GENERAL ELECTRIC) V. NLRB, 366 U.S. 667, 673
(1961). 

THUS THERE ARE TWO THREADS TO SEC. 8(B)(4)(B) THAT REQUIRE DISPUTED
CONDUCT TO BE CLASSIFIED AS EITHER "PRIMARY" OR "SECONDARY."  AND THE
TAPESTRY THAT HAS BEEN WOVEN IN CLASSIFYING SUCH CONDUCT IS AMONG THE
LABOR LAW'S MOST INTRICATE.  SEE BROTHERHOOD OF RAILROAD TRAINMEN V.
JACKSONVILLE TERMINAL CO., 394 U.S. 369 (1969).  BUT HERE THE NORMALLY
DIFFICULT TASK OF CLASSIFYING UNION CONDUCT IS EASY.  AS THE COURT OF
APPEALS SAID, THE "RECORD AMPLY JUSTIFIES THE CONCLUSION THAT (BURNS
AND THE NEUTRAL SUBCONTRACTORS) WERE SUBJECTED TO COERCION IN THE FORM
OF THREATS OR WALKOUTS, OR BOTH."  410 F.2D,AT 9.  AND AS THE BOARD
SAID, IT IS CLEAR THAT THIS COERCION WAS DESIGNED "TO ACHIEVE THE
ASSIGNMENT OF (THE) DISPUTED WORK" TO OPERATING ENGINEERS.  162
N.L.R.B. 1617, 1621. 

LOCAL 825'S COERCIVE ACTIVITY WAS AIMED DIRECTLY AT BURNS AND THE
SUBCONTRACTORS THAT WERE NOT INVOLVED IN THE DISPUTE.  THE UNION
ENGAGED IN A STRIKE AGAINST THESE NEUTRAL EMPLOYERS FOR THE SPECIFIC,
OVERT PURPOSE OF FORCING THEM TO PUT PRESSURE ON WHITE TO ASSIGN THE
JOB OF OPERATING THE WELDING MACHINE TO OPERATING ENGINEERS.  LOCAL 825
WAS NOT ATTEMPTING TO APPLY THE FULL FORCE OF PRIMARY ACTION BY
DIRECTING ITS EFFORTS AT ALL PHASES OF BURNS' NORMAL OPERATION AS WAS
THE CASE IN STEELWORKERS (CARRIER) V. NLRB, 376 U.S. 492 (1964), AND
ELECTRICAL WORKERS (GENERAL ELECTRIC) V. NLRB, 366 U.S. 667 (1961).  IT
WAS INSTEAD USING A SORT OF PRESSURE THAT WAS UNMISTAKABLY AND
FLAGRANTLY SECONDARY.  NLRB V. DENVER BUILDING & CONSTRUCTION TRADES
COUNCIL, 341 U.S. 675 (1951). 

THE MORE DIFFICULT TASK IS TO DETERMINE WHETHER ONE OF LOCAL 825'S
OBJECTIVES WAS TO FORCE BURNS AND THE OTHER NEUTRALS TO "CEASE DOING
BUSINESS" WITH WHITE AS SEC. 8(B)(4)(B) REQUIRES.  THE COURT OF APPEALS
CONCLUDED THAT THE UNION'S OBJECTIVE WAS TO FORCE BURNS "TO USE ITS
INFLUENCE WITH THE SUBCONTRACTOR TO CHANGE THE SUBCONTRACTOR'S CONDUCT,
NOT TO TERMINATE THEIR RELATIONSHIP" AND THAT THIS WAS NOT ENOUGH.  410
F.2D,AT 10.  THAT COURT READ THE STATUTE AS REQUIRING THAT THE UNION
DEMAND NOTHING SHORT OF A COMPLETE TERMINATION OF THE BUSINESS
RELATIONSHIP BETWEEN THE NEUTRAL AND THE PRIMARY EMPLOYER.  SUCH A
READING IS TOO NARROW. 

SOME DISRUPTION OF BUSINESS RELATIONSHIPS IS THE NECESSARY
CONSEQUENCE OF THE PUREST FORM OF PRIMARY ACTIVITY.  THESE FORESEEABLE
DISRUPTIONS ARE, HOWEVER, CLEARLY PROTECTED.  STEELWORKERS (CARRIER),
376 U.S.,AT 496; ELECTRICAL WORKERS (GENERAL ELECTRIC), 366 U.S.,AT
682.  LIKEWISE, SECONDARY ACTIVITY COULD HAVE SUCH A LIMITED GOAL AND
THE FORESEEABLE RESULT OF THE CONDUCT COULD BE, WHILE DISRUPTIVE, SO
SLIGHT THAT THE "CEASE DOING BUSINESS" REQUIREMENT IS NOT MET. 

LOCAL 825'S GOAL WAS NOT SO LIMITED NOR WERE THE FORESEEABLE
CONSEQUENCES OF ITS SECONDARY PRESSURE SLIGHT.  THE OPERATING ENGINEERS
SOUGHT TO FORCE BURNS TO BIND ALL THE SUBCONTRACTORS ON THE PROJECT TO
A PARTICULAR FORM OF JOB ASSIGNMENTS.  THE CLEAR IMPLICATION OF THE
DEMANDS WAS THAT BURNS WOULD BE REQUIRED EITHER TO FORCE A CHANGE IN
WHITE'S POLICY OR TO TERMINATE WHITE'S CONTRACT.  THE STRIKES SHUT DOWN
THE WHOLE PROJECT.  IF BURNS WAS UNABLE TO OBTAIN WHITE'S CONSENT,
LOCAL 825 WAS APPARENTLY WILLING TO CONTINUE DISRUPTIVE CONDUCT THAT
WOULD BRING ALL THE EMPLOYERS TO THEIR KNEES. 

CERTAINLY, THE UNION WOULD HAVE PREFERRED TO HAVE THE EMPLOYERS
CAPITULATE TO ITS DEMANDS; IT WANTED TO TAKE THE JOB OF OPERATING THE
WELDING MACHINES AWAY FROM THE IRONWORKERS.  IT WAS WILLING, HOWEVER,
TO TRY TO OBTAIN THIS CAPITULATION BY FORCING NEUTRALS TO COMPEL WHITE
TO MEET UNION DEMANDS.  TO HOLD THAT THIS FLAGRANT SECONDARY CONDUCT
WITH THESE MOST SERIOUS DISRUPTIVE EFFECTS WAS NOT PROHIBITED BY SEC.
8(B)(4)(B) WOULD BE LARGELY TO IGNORE THE ORIGINAL CONGRESSIONAL
CONCERN.  NLRB V. CARPENTERS DIST. COUNCIL, 407 F.2D 804, 806 (CA5
1969). 

        II 

IN ADDITION TO ITS ARGUMENT THAT SEC. 8(B)(4)(B) DOES NOT COVER ITS
CONDUCT, LOCAL 825 ARGUES THAT SEC. 8(B)(4)(D) PROVIDES THE EXCLUSIVE
REMEDY.  CLEARLY, SEC. 8(B)(4)(D) IS, AS THE BOARD AND COURT OF APPEALS
HELD, APPLICABLE.  BUT THAT SECTION IS AIMED AT PROTECTING "THE
EMPLOYER TRAPPED BETWEEN THE . . . CLAIMS" OF RIVAL UNIONS.  NATIONAL
WOODWORK MFRS.  ASSN.  V. NLRB, 386 U.S. 612, 625 (1967).  ALTHOUGH
SEC. 8(B)(4)(D) ALSO APPLIES TO NEUTRALS, THE BASIC PURPOSE IS
DIFFERENT FROM THAT OF SEC. 8(B)(4)(B).  THE PRACTICES HERE WERE UNFAIR
UNDER BOTH SECTIONS AND THERE IS NO INDICATION THAT CONGRESS INTENDED
EITHER SECTION TO HAVE EXCLUSIVE APPLICATION. 

        III 

SINCE THE COURT OF APPEALS DID NOT BELIEVE THAT SEC. 8(B)(4)(B) WAS
APPLICABLE, IT DID NOT CONSIDER THE PROPRIETY OF THE PORTION OF THE
BOARD'S ORDER RELATING TO THAT SECTION.  BUT THE ORDER WAS NOT NARROWLY
CONFINED TO THE CONDUCT INVOLVED HERE; SO WE MUST REMAND THESE CASES
FOR THE COURT OF APPEALS TO CONSIDER WHETHER THE ORDER IS NECESSARY TO
FURTHER THE GOALS OF THE ACT.  SEE COMMUNICATIONS WORKERS V. NLRB, 362
U.S. 479 (1960); NLRB V. EXPRESS PUBLISHING CO., 312 U.S. 426 (1941). 

              REVERSED AND REMANDED. 

/0/  TOGETHER WITH NO. 42, BURNS & ROE, INC., ETAL.  V. LOCAL 825,
INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, ETAL. 

/1/  SEC. 8(B) "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION OR ITS AGENTS--

        .          .          .          . 

"(4)(I) TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE,
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY
PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE
IN EITHER CASE AN OBJECT THEREOF IS--

        .         .          .          . 

"(B) FORCING OR REQUIRING ANY PERSON TO CEASE USING, SELLING,
HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY
OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING BUSINESS
WITH ANY OTHER PERSON, OR FORCING OR REQUIRING ANY OTHER EMPLOYER TO
RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE REPRESENTATIVE OF
HIS EMPLOYEES UNLESS SUCH LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE
REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS OF SECTION 9:
PROVIDED, THAT NOTHING CONTAINED IN THIS CLAUSE (B) SHALL BE CONSTRUED
TO MAKE UNLAWFUL, WHERE NOT OTHERWISE UNLAWFUL, ANY PRIMARY STRIKE OR
PRIMARY PICKETING . . . ."  61 STAT. 141, AS AMENDED, 73 STAT. 542, 29
U.S.C. 158(B)(4)(B). 

/2/  410 F.2D 5. 

/3/  THE PROPOSED CONTRACT PROVIDED IN PART: 

"THIS AGREEMENT SHALL BIND ALL SUB-CONTRACTORS WHILE WORKING FOR AN
EMPLOYER WHO IS A PART TO THIS AGREEMENT.  ANY EMPLOYER WHO SUBLETS ANY
OF HIS WORK MUST SUBLET THE SAME SUBJECT TO ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT. 

"THE EMPLOYER AGREES THAT HE WILL NOT SUBCONTRACT ANY OF HIS WORK,
WHICH IS COVERED BY THE TERMS OF THIS COLLECTIVE BARGAINING AGREEMENT,
TO ANY SUBCONTRACTOR, UNLESS SAID SUBCONTRACTOR AGREES IN WRITING TO
PERFORM SAID WORK SUBJECT TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT
BETWEEN THE EMPLOYER AND THE UNION, INCLUDING AN AGREEMENT TO SUBMIT
WORK JURISDICTIONAL DISPUTES FOR DETERMINATION AS PROVIDED BELOW." 

/4/  A PRIVATE ORGANIZATION THAT ARBITRATES JURISDICTIONAL DISPUTES
IN THE CONSTRUCTION INDUSTRY. 

/5/  29 U.S.C. 160(L). 

/6/  THE OPERATING ENGINEER'S ACTIVITY DID NOT STOP WITH THE
ISSUANCE OF THE INJUNCTION.  WHITE'S ENGINEERS STRUCK AGAIN ON NOVEMBER
17, THIS TIME OSTENSIBLY OVER A DISPUTE CONCERNING THE NUMBER OF
EMPLOYEES ASSIGNED TO OPERATE A RECENTLY INSTALLED ELECTRICAL PUMP. 
LOCAL 825 REPRESENTATIVES IN A DISCUSSION WITH WHITE SAID, HOWEVER,
THAT THIS WALKOUT "WAS MORE OR LESS BECAUSE OF THE ELECTRIC WELDING
MACHINE BEING IN OPERATION."  THE STRIKE LASTED UNTIL DECEMBER 21.  OF
COURSE THE ACTIVITY LIKE THAT ON NOVEMBER 4 DID NOT INVOLVE SEC.
8(B)(4)(B) VIOLATIONS SINCE ONLY THE ENGINEERS WORKING FOR WHITE WERE
INVOLVED.     /7/  SEC. 8(B) "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR
A LABOR ORGANIZATION OR ITS AGENTS--

        .          .       .          . 

"(4)(I) TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE,
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY
PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE
IN EITHER CASE AN OBJECT THEREOF IS--             .          .     .
 . 

"(D) FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE,
CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION
OR IN ANOTHER TRADE, CRAFT, OR CLASS, UNLESS SUCH EMPLOYER IS FAILING
TO CONFORM TO AN ORDER OR CERTIFICATION OF THE BOARD DETERMINING THE
BARGAINING REPRESENTATIVE FOR EMPLOYEES PERFORMING SUCH WORK . . . ." 
29 U.S.C. 158(B)(4)(D). 

/8/  SEE BROTHERHOOD OF RAILROAD TRAINMAN V. JACKSONVILLE TERMINAL
CO., 394 U.S. 369, 386-390 (1969); NATIONAL WOODWORK MFRS.  ASSN.  V;
NLRB, 386 U.S. 612, 624 (1967). 

/9/  ELECTRICAL WORKERS, LOCAL 501 V. NLRB, 181 F.2D 34, 37(CA2
1950), AFF'D, 341 U.S. 694 (1951). 

/10/  THE HOUSE CONFERENCE REPORT EXPLAINED THIS IDEA: 

"THUS IT WAS MADE AN UNFAIR LABOR PRACTICE FOR A UNION TO ENGAGE IN
A STRIKE AGAINST EMPLOYER A FOR THE PURPOSE OF FORCING THAT EMPLOYER TO
CEASE DOING BUSINESS WITH EMPLOYER B. SIMILARLY IT WOULD NOT BE LAWFUL
FOR A UNION TO BOYCOTT EMPLOYER A BECAUSE EMPLOYER A USES OR OTHERWISE
DEALS IN THE GOODS OF, OR DOES BUSINESS WITH, EMPLOYER B."  H.R. CONF.
REP. NO. 510, 80TH CONG., 1ST SESS., 43 (1947). 

/11/  THE SECTION CONTAINS A SPECIFIC PROVISO, WHICH WAS ADDED BY
THE 1959 AMENDMENT TO THE ACT, THAT PROTECTS A "PRIMARY STRIKE OR
PRIMARY PICKETING" THAT IS "NOT OTHERWISE UNLAWFUL."  SEE N. 1, SUPRA. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART CONCURS,
DISSENTING. 

IF WE TAKE THE WORDS OF THE ACT, RATHER THAN WHAT THE COURTS HAVE
INTERPOLATED, AND LAY THEM ALONGSIDE THE FACTS OF THIS CAUSE, I DO NOT
SEE HOW WE CAN FAIRLY SAY THAT LOCAL 825 ENGAGED IN AN "UNFAIR LABOR
PRACTICE" WITHIN THE MEANING OF SEC. 8(B)(4)(B).  LOCAL 825 DID USE
COERCION TO GET JOBS FROM WHITE FOR ITS WORKERS.  THE BOARD TERMED IT
"CAUSING A DISRUPTION OF THE BUSINESS RELATIONSHIP AMONG THE VARIOUS
EMPLOYERS AT THE JOBSITE," WHICH IT HELD WAS WITHIN THE BAN OF SEC.
8(B)(4)(B) SINCE LOCAL 825'S AIM, THOUGH NOT "A TOTAL CANCELLATION OF A
BUSINESS RELATIONSHIP" WITH WHITE, CONSTITUTED A "CEASE DOING BUSINESS"
PURPOSE.  THE BOARD SAID:  "AN OBJECT OF THE RESPONDENT HAS TO FORCE
BURNS TO CEASE DOING BUSINESS WITH WHITE, AND TO FORCE CHICAGO BRIDGE
AND POIRIER TO CEASE DOING BUSINESS WITH BURNS IN ORDER TO COMPEL BURNS
TO CEASE DOING BUSINESS WITH WHITE."  162 N.L.R.B. 1617, 1621-1622. 

YET AS THE TRIAL EXAMINER FOUND:  "RESPONDENT NEVER INDICATED IT
WANTED WHITE OFF THE JOB-- IT WANTED TO HARASS WHITE TO GAIN COMPLIANCE
WITH ITS REQUESTS.  NOR WAS ANY DEMAND MADE UPON BURNS TO CEASE DOING
BUSINESS WITH WHITE.  . . . ALL RESPONDENT WANTED WAS THE WORK, NOT A
SUBSTITUTION OF CONTRACTORS NOR A TERMINATION OF CONTRACTUAL
RELATIONSHIPS BETWEEN THE CONTRACTORS." 

OUR QUESTION TURNS NOT ON THE FINDINGS OF FACT BUT ON THE QUESTION
OF LAW WHICH EMERGES, WHETHER WHAT WAS DONE HAD AS ITS PURPOSE TO
INDUCE THE GENERAL CONTRACTOR AND SUBCONTRACTOR TO "CEASE DOING
BUSINESS" WITH WHITE. 

WE HELD IN NLRB V. DENVER BUILDING & CONSTRUCTION TRADE COUNCIL, 341
U.S. 675, 688, THAT AN EFFORT "TO FORCE" A SUBCONTRACTOR IN THE
POSITION OF WHITE "OFF THE JOB" SATISFIED THE "CEASE DOING BUSINESS"
TEST THOUGH THAT PURPOSE WAS NOT THE EXCLUSIVE ONE.  A STRIKE TO
ACHIEVE THAT END, WE HELD IN ELECTRICAL WORKERS V. NLRB, 341 U.S. 694,
700, ALSO BROUGHT THE COERCIVE MEANS WITHIN THE SAME BAN.  AND IN
STEELWORKERS V. NLRB, 376 U.S. 492, 496, WE HELD THAT A UNION ON STRIKE
AGAINST AN EMPLOYER, CARRIER, HAD NOT VIOLATED THE "CEASE DOING
BUSINESS" BAN, WHEN IT PICKETED AT AN ENTRANCE USED EXCLUSIVELY BY
RAILROAD PERSONNEL "TO INDUCE THE RAILROAD TO CEASE PROVIDING FREIGHT
SERVICE TO CARRIER FOR THE DURATION OF THE STRIKE." 

THE CASE HERE IS PLAINLY DIFFERENT.  THE AIM WAS NOT TO FREEZE OUT
WHITE OR TO CLOSE IT DOWN FOR AN HOUR OR FOR THE DURATION.  IT WAS
MERELY TO GET THE WORK, WHOSE ASSIGNMENT IT CONTROLLED, FOR MEMBERS OF
LOCAL 825.  THE CASE IS THEREFORE THE CLASSIC JURISDICTIONAL CONFLICT
COVERED BY SEC. 8(B)(4)(D) WHICH MAKES "FORCING OR REQUIRING ANY
EMPLOYER TO ASSIGN PARTICULAR WORK TO EMPLOYEES IN A PARTICULAR LABOR
ORGANIZATION" AN UNFAIR LABOR PRACTICE. 

THE BOARD PROPERLY ISSUED A CEASE-AND-DESIST ORDER CONCERNING THE
JURISDICTIONAL DISPUTE CONDEMNED BY SEC. 8(B)(4)(D).  THE FACT THAT (D)
MAY BE INVOLVED DOES NOT NECESSARILY MEAN THAT (B) MAY NOT ALSO BE
INVOLVED, AS THE TWO ARE NOT "MUTUALLY EXCLUSIVE."  LOCAL 5, PLUMBING &
PIPE FITTING INDUSTRY, 137 N.L.R.B. 828, 832.  /1/  BUT WHERE THE FACTS
SHOW ONLY THE JURISDICTIONAL DISPUTE CONDEMNED BY SEC. 8(B)(4)(D) AND
NO PLAN TO CLOSE DOWN WHITE EITHER PERMANENTLY OR FOR A DAY OR EVEN AN
HOUR, WE SHOULD NOT ONLY HOLD THAT SEC. 8(B)(4)(B) IS NOT SATISFIED; WE
SHOULD ALSO HOLD THAT (D) CANNOT DO SERVICE FOR (B) WHERE THERE IS NO
ELEMENT OF "CEASING" TO DO BUSINESS PRESENT. 

/1/  AND SEE LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, 145 N.L.R.B.
1580; MILLWRIGHTS LOCAL 1102, 162 N.L.R.B. 217. 

ARNOLD ORDMAN ARGUED THE CAUSE FOR THE NATIONAL LABOR RELATIONS
BOARD, PETITIONER IN NO. 40 AND RESPONDENT IN NO. 42.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, PETER L. STRAUSS, DOMINICK L.
MANOLI, AND NORTON J. COME.  VINCENT J. APRUZZESE ARGUED THE CAUSE FOR
PETITIONERS IN NO. 42.  WITH HIM ON THE BRIEF WERE FRANCIS A. MASTRO
AND MERRITT T. VISCARDI. 

EARL S. ARONSON ARGUED THE CAUSE FOR RESPONDENT LOCAL 825,
INTERNATIONAL UNION OF OPERATING ENGINEERS, IN BOTH CASES.  WITH HIM ON
THE BRIEF WAS THOMAS E. DURKIN, JR. 

LAURENCE GOLD ARGUED THE CAUSE FOR THE AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS AMICUS CURIAE URGING
AFFIRMANCE IN BOTH CASES.  WITH HIM ON THE BRIEF WERE J. ALBERT WOLL
AND THOMAS E. HARRIS. 

BRIEFS OF AMICI CURIAE URGING REVERSAL IN BOTH CASES WERE FILED BY
WILLIAM B. BARTON AND HARRY J. LAMBETH FOR ASSOCIATED BUILDERS &
CONTRACTORS, INC., AND BY WINTHROP A. JOHNS AND LAWRENCE T. ZIMMERMAN
FOR THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA ETAL. 
..END :


















WYMAN V. JAMES, 400 U.S. 309 


       WYMAN, COMMISSIONER OF NEW YORK DEPARTMENT OF SOCIAL

           SERVICES, ET AL. V. JAMES

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

        NO. 69.  ARGUED OCTOBER 20, 1970-- DECIDED JANUARY 12,
1971 


NEW YORK'S AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM,
STRESSING "CLOSE CONTACT" VITH BENEFICIARIES, REQUIRES HOME VISITS BY
CASEWORKERS AS A CONDITION FOR ASSISTANCE "IN ORDER THAT ANY TREATMENT
OR SERVICE TENDING TO RESTORE (BENEFICIARIES TO A CONDITION OF SELF
SUPPORT AND TO RELIEVE THEIR DISTRESS MAY BE RENDERED AND . . . THAT
ASSISTANCE OR CARE MAY BE GIVEN ONLY IN SUCH AMOUNT AND AS LONG AS
NECESSARY."  VISITATION WITH A BENEFICIARY, WHO IS THE PRIMARY SOURCE
OF INFORMATION TO WELFARE AUTHORITIES AS TO ELIGIBILITY FOR ASSISTANCE,
IS NOT PERMITTED OUTSIDE WORKING HOURS, AND FORCIBLE ENTRY AND SNOOPING
ARE PROHIBITED.  APPELLEE, A BENEFICIARY UNDER THE AFDC PROGRAM, AFTER
RECEIVING SEVERAL DAYS' ADVANCE NOTICE, REFUSED TO PERMIT A CASEWORKER
TO VISIT HER HOME AND, FOLLOWING A HEARING AND ADVICE THAT ASSISTANCE
WOULD CONSEQUENTLY BE TERMINATED, BROUGHT THIS SUIT FOR INJUNCTIVE AND
DECLARATORY RELIEF, CONTENDING THAT A HOME VISITATION IS A SEARCH AND,
WHEN NOT CONSENTED TO OR SUPPORTED BY A WARRANT BASED ON PROBABLE
CAUSE, WOULD VIOLATE HER FOURTH AND FOURTEENTH AMENDMENT RIGHTS.  THE
DISTRICT COURT UPHELD APPELLEE'S CONSTITUTIONAL CLAIM.  HELD:  THE HOME
VISITATION PROVIDED FOR BY NEW YORK LAW IN CONNECTION WITH THE AFDC
PROGRAM IS A REASONABLE ADMINISTRATIVE TOOL AND DOES NOT VIOLATE ANY
RIGHT GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS.  PP. 315
326. 

(A) HOME VISITATION, WHICH IS NOT FORCED OR COMPELLED, IS NOT A
SEARCH IN THE TRADITIONAL CRIMINAL LAW CONTEXT OF THE FOURTH
AMENDMENT.  PP. 317-318. 

(B) EVEN ASSUMING THAT THE HOME VISIT HAS SOME OF THE
CHARACTERISTICS OF A TRADITIONAL SEARCH, NEW YORK'S PROGRAM IS
REASONABLE, AS IT SERVES THE PARAMOUNT NEEDS OF THE DEPENDENT CHILD;
ENABLES THE STATE TO DETERMINE THAT THE INTENDED OBJECTS OF ITS
ASSISTANCE BENEFIT FROM ITS AID AND THAT STATE FUNDS ARE BEING PROPERLY
USED; HELPS ATTAIN PARALLEL FEDERAL RELIEF OBJECTIVES; STRESSES PRIVACY
BY NOT UNNECESSARILY INTRUDING ON THE BENEFICIARY'S RIGHTS IN HER HOME;
PROVIDES ESSENTIAL INFORMATION NOT OBTAINABLE THROUGH SECONDARY
SOURCES; IS CONDUCTED, NOT BY A LAW ENFORCEMENT OFFICER, BUT BY A
CASEWORKER; IS NOT A CRIMINAL INVESTIGATION; AND (UNLIKE THE WARRANT
PROCEDURE, WHICH NECESSARILY IMPLIES CRIMINAL CONDUCT) COMPORTS WITH
THE OBJECTIVES OF WELFARE ADMINISTRATION.  PP 318-324. 

(C) THE CONSEQUENCE OF REFUSAL TO PERMIT HOME VISITATION, WHICH DOES
NOT INVOLVE A SEARCH FOR VIOLATIONS, IS NOT A CRIMINAL PROSECUTION BUT
THE TERMINATION OF RELIEF BENEFITS.  CAMARA V. MUNICIPAL COURT, 387
U.S. 523; SEE V. CITY OF SEATTLE, 387 U.S. 541, DISTINGUISHED.  PP 324
325. 

303 F.SUPP.  935, REVERSED AND REMANDED. 

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C. J., AND BLACK, HARLAN, AND STEWART, JJ., AND WHITE, J. (EXCEPT FOR
PART IV) JOINED.  DOUGLAS, J., FILED A DISSENTING OPINION, POST, P.
326.  MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, J.,
JOINED, POST, P. 338. 

MR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS THE ISSUE WHETHER A BENEFICIARY OF THE PROGRAM
FOR AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) /1/ MAY REFUSE A
HOME VISIT BY THE CASEWORKER WITHOUT RISKING THE TERMINATION OF
BENEFITS. 

THE NEW YORK STATE AND CITY SOCIAL SERVICES COMMISSIONERS APPEAL
FROM A JUDGMENT AND DECREE OF A DIVIDED THREE-JUDGE DISTRICT COURT
HOLDING INVALID AND UNCONSTITUTIONAL IN APPLICATION SEC. 134 OF THE NEW
YORK SOCIAL SERVICES LAW, /2/  SEC. 175 OF THE NEW YORK POLICIES
GOVERNING THE ADMINISTRATION OF PUBLIC ASSISTANCE, /3/  AND SECS.
351.10 AND 351.21 OF TITLE 18 OF THE NEW YORK CODE OF RULES AND
REGULATIONS, /4/  AND GRANTING INJUNCTIVE RELIEF.  JAMES V. GOLDBERG,
303 F.SUPP.  935(SDNY 1969).  THIS COURT NOTED PROBABLE JURISDICTION
BUT, BY A DIVIDED VOTE, DENIED A REQUESTED STAY.  397 U.S. 904. 

THE DISTRICT COURT MAJORITY HELD THAT A MOTHER RECEIVING AFDC RELIEF
MAY REFUSE, WITHOUT FORFEITING HER RIGHT TO THAT RELIEF, THE PERIODIC
HOME VISIT WHICH THE CITED NEW YORK STATUTES AND REGULATIONS PRESCRIBE
AS A CONDITION FOR THE CONTINUANCE OF ASSISTANCE UNDER THE PROGRAM. 
THE BENEFICIARY'S THESIS, AND THAT OF THE DISTRICT COURT MAJORITY, IS
THAT HOME VISITATION IS A SEARCH AND, WHEN NOT CONSENTED TO OR WHEN NOT
SUPPORTED BY A WARRANT BASED ON PROBABLE CAUSE, VIOLATES THE
BENEFICIARY'S FOURTH AND FOURTEENTH AMENDMENT RIGHTS. 

JUDGE MCLEAN, IN DISSENT, THOUGHT IT UNREALISTIC TO REGARD THE HOME
VISIT AS A SEARCH; FELT THAT THE REQUIREMENT OF A SEARCH WARRANT TO
ISSUE ONLY UPON A SHOWING OF PROBABLE CAUSE WOULD MAKE THE AFDC PROGRAM
"IN EFFECT ANOTHER CRIMINAL STATUTE" AND WOULD "INTRODUCE A HOSTILE
ARM'S LENGTH ELEMENT INTO THE RELATIONSHIP" BETWEEN WORKER AND MOTHER,
"A RELATIONSHIP WHICH CAN BE EFFECTIVE ONLY WHEN IT IS BASED UPON
MUTUAL CONFIDENCE AND TRUST"; AND CONCLUDED THAT THE MAJORITY'S HOLDING
STRUCK "A DAMAGING BLOW" TO AN IMPORTANT SOCIAL WELFARE PROGRAM.  303
F.SUPP., AT 946. 

        I 

THE CASE COMES TO US ON THE PLEADINGS AND SUPPORTING AFFIDAVITS AND
WITHOUT THE BENEFIT OF TESTIMONY WHICH AN EXTENDED HEARING WOULD HAVE
PROVIDED.  THE PERTINENT FACTS, HOWEVER, ARE NOT IN DISPUTE. 

PLAINTIFF BARBARA JAMES IS THE MOTHER OF A SON, MAURICE, WHO WAS
BORN IN MAY 1967.  THEY RESIDE IN NEW YORK CITY.  MRS. JAMES FIRST
APPLIED FOR AFDC ASSISTANCE SHORTLY BEFORE MAURICE'S BIRTH.  A
CASEWORKER MADE A VISIT TO HER APARTMENT AT THAT TIME WITHOUT
OBJECTION.  THE ASSISTANCE WAS AUTHORIZED. 

TWO YEARS LATER, ON MAY 8, 1969, A CASE WORKER WROTE MRS. JAMES THAT
SHE WOULD VISIT HER HOME ON MAY 14.  UPON RECEIPT OF THIS ADVICE, MRS.
JAMES TELEPHONED THE WORKER THAT, ALTHOUGH SHE WAS WILLING TO SUPPLY
INFORMATION "REASONABLE AND RELEVANT" TO HER NEED FOR PUBLIC
ASSISTANCE, ANY DISCUSSION WAS NOT TO TAKE PLACE AT HER HOME.  THE
WORKER TOLD MRS. JAMES THAT SHE WAS REQUIRED BY LAW TO VISIT IN HER
HOME AND THAT REFUSAL TO PERMIT THE VISIT WOULD RESULT IN THE
TERMINATION OF ASSISTANCE.  PERMISSION WAS STILL DENIED. 

ON MAY 13 THE CITY DEPARTMENT OF SOCIAL SERVICES SENT MRS. JAMES A
NOTICE OF INTENT TO DISCONTINUE ASSISTANCE BECAUSE OF THE VISITATION
REFUSAL.  THE NOTICE ADVISED THE BENEFICIARY OF HER RIGHT TO A HEARING
BEFORE A REVIEW OFFICER.  THE HEARING WAS REQUESTED AND WAS HELD ON MAY
27.  MRS. JAMES APPEARED WITH AN ATTORNEY AT THAT HEARING.  /5/  THEY
CONTINUED TO REFUSE PERMISSION FOR A WORKER TO VISIT THE JAMES HOME,
BUT AGAIN EXPRESSED WILLINGNESS TO COOPERATE AND TO PERMIT VISITS
ELSEWHERE.  THE REVIEW OFFICER RULED THAT THE REFUSAL WAS A PROPER
GROUND FOR THE TERMINATION OF ASSISTANCE.  HIS WRITTEN DECISION
STATED: 

     "THE HOME VISIT WHICH MRS. JAMES REFUSES TO PERMIT IS FOR THE

  PURPOSE OF DETERMINING IF THERE ARE ANY CHANGES IN HER SITUATION

  THAT MIGHT AFFECT HER ELIGIBILITY TO CONTINUE TO RECEIVE PUBLIC

ASSISTANCE, OR THAT MIGHT AFFECT THE AMOUNT OF SUCH ASSISTANCE,

  AND TO SEE IF THERE ARE ANY SOCIAL SERVICES WHICH THE DEPARTMENT

  OF SOCIAL SERVICES CAN PROVIDE TO THE FAMILY." 

A NOTICE OF TERMINATION ISSUED ON JUNE 2. 

THEREUPON, WITHOUT SEEKING A HEARING AT THE STATE LEVEL, MRS. JAMES,
INDIVIDUALLY AND ON BEHALF OF MAURICE, AND PURPORTING TO ACT ON BEHALF
OF ALL OTHER PERSONS SIMILARLY SITUATED, INSTITUTED THE PRESENT CIVIL
RIGHTS SUIT UNDER 42 U.S.C. 1983.  SHE ALLEGED THE DENIAL OF RIGHTS
GUARANTEED TO HER UNDER THE FIRST, THIRD, FOURTH, FIFTH, SIXTH, NINTH,
TENTH AND FOURTEENTH AMENDMENTS, AND UNDER SUBCHAPTERS IV AND XVI OF
THE SOCIAL SECURITY ACT AND REGULATIONS ISSUED THEREUNDER.  SHE FURTHER
ALLEGED THAT SHE AND HER SON HAVE NO INCOME, RESOURCES, OR SUPPORT
OTHER THAN THE BENEFITS RECEIVED UNDER THE AFDC PROGRAM.  SHE ASKED FOR
DECLARATORY AND INJUNCTIVE RELIEF.  A TEMPORARY RESTRAINING ORDER WAS
ISSUED ON JUNE 13, JAMES V. GOLDBERG, 302 F.SUPP 478 (SDNY 1969), AND
THE THREE-JUDGE DISTRICT COURT WAS CONVENED. 

        II 

THE FEDERAL ASPECTS OF THE AFDC PROGRAM DESERVE MENTION.  THEY ARE
PROVIDED FOR IN SUBCHAPTER IV, PART A, OF THE SOCIAL SECURITY ACT OF
1935, 49 STAT. 627, AS AMENDED, 42 U.S.C. 601-610 (1964 ED. AND SUPP.
V).  SECTION 401 OF THE ACT, 42 U.S.C. 601 (1964 ED., SUPP. V),
SPECIFIES ITS PURPOSE, NAMELY "ENCOURAGING THE CARE OF DEPENDENT
CHILDREN IN THEIR OWN HOMES OR IN THE HOMES OF RELATIVES BY ENABLING
EACH STATE TO FURNISH FINANCIAL ASSISTANCE AND REHABILITATION AND OTHER
SERVICES . . . TO NEEDY DEPENDENT CHILDREN AND THE PARENTS OR RELATIVES
WITH WHOM THEY ARE LIVING TO HELP MAINTAIN AND STRENGTHEN FAMILY LIFE .
. . ."  THE SAME SECTION AUTHORIZES THE FEDERAL APPROPRIATION FOR
APYMENTS TO STATES THAT QUALIFY.  SECTION 402, 42 U.S.C. 602 (1964 ED.,
SUPP. V), PROVIDES THAT A STATE PLAN, AMONG OTHER THINGS, MUST "PROVIDE
FOR GRANTING AN OPPORTUNITY FOR A FAIR HEARING BEFORE THE STATE AGENCY
TO ANY INDIVIDUAL WHOSE CLAIM FOR AID TO FAMILIES WITH DEPENDENT
CHILDREN IS DENIED OR IS NOT ACTED UPON WITH REASONABLE PROMPTNESS";
MUST "PROVIDE THAT THE STATE AGENCY WILL MAKE SUCH REPORTS . . . AS THE
SECRETARY (OF HEALTH, EDUCATION, AND WELFARE) MAY FROM TIME TO TIME
REQUIRE"; MUST "PROVIDE THAT THE STATE AGENCY SHALL, IN DETERMINING
NEED, TAKE INTO CONSIDERATION ANY OTHER INCOME AND RESOURCES OF ANY
CHILD OR RELATIVE CLAIMING AID"; AND MUST "PROVIDE THAT WHERE THE STATE
AGENCY HAS REASON TO BELIEVE THAT THE HOME IN WHICH A RELATIVE AND
CHILD RECEIVING AID RESIDE IS UNSUITABLE FOR THE CHILD BECAUSE OF THE
NEGLECT, ABUSE, OR EXPLOITATION OF SUCH CHILD IT SHALL BRING SUCH
CONDITION TO THE ATTENTION OF THE APPROPRIATE COURT OR LAW ENFORCEMENT
AGENCIES IN THE STATE . . . ."  SECTION 405, 42 U.S.C. 605, PROVIDES
THAT 

"WHENEVER THE STATE AGENCY HAS REASON TO BELIEVE THAT ANY PAYMENTS
OF AID . . . MADE WITH RESPECT TO A CHILD ARE NOT BEING OR MAY NOT BE
USED IN THE BEST INTERESTS OF THE CHILD, THE STATE AGENCY MAY PROVIDE
FOR SUCH COUNSELING AND GUIDANCE SERVICES WITH RESPECT TO THE USE OF
SUCH PAYMENTS AND THE MANAGEMENT OF OTHER FUNDS BY THE RELATIVE . . .
IN ORDER TO ASSURE USE OF SUCH PAYMENTS IN THE BEST INTERESTS OF SUCH
CHILD, AND MAY PROVIDE FOR ADVISING SUCH RELATIVE THAT CONTINUED
FAILURE TO SO USE SUCH PAYMENTS WILL RESULT IN SUBSTITUTION THEREFOR OF
PROTECTIVE PAYMENTS . . . OR IN SEEKING THE APPOINTMENT OF A GUARDIAN .
. . OR IN THE IMPOSITION OF CRIMINAL OR CIVIL PENALTIES . . . ." 

        III 

WHEN A CASE INVOLVES A HOME AND SOME TYPE OF OFFICIAL INTRUSTION
INTO THAT HOME, AS THIS CASE APPEARS TO DO, AN IMMEDIATE AND NATURAL
REACTION IS ONE OF CONCERN ABOUT FOURTH AMENDMENT RIGHTS AND THE
PROTECTION WHICH THAT AMENDMENT IS INTENDED TO AFFORD.  ITS EMPHASIS
INDEED IS UPON ONE OF THE MOST PRECIOUS ASPECTS OF PERSONAL SECURITY IN
THE HOME:  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS, AND EFFECTS . . . ."  THIS COURT HAS CHARACTERIZED THAT
RIGHT AS "BASIC TO A FREE SOCIETY."  WOLF V. COLORADO, 338 U.S. 25, 27
(1949); CAMARA V. MUNICIPAL COURT, 387 U.S. 523, 528 (1967).  AND OVER
THE YEARS THE COURT CONSISTENTLY HAS BEEN MOST PROTECTIVE OF THE
PRIVACY OF THE DWELLING.  SEE, FOR EXAMPLE, BOYD V. UNITED STATES, 116
U.S. 616, 626-630 (1886); MAPP V. OHIO, 367 U.S. 643 (1961); CHIMEL V.
CALIFORNIA, 395 U.S. 752 (1969); VALE V. LOUISIANA, 399 U.S. 30
(1970).  IN CAMARA MR. JUSTICE WHITE, AFTER NOTING THAT THE
"TRANSLATION OF THE ABSTRACT PROHIBITION AGAINST 'UNREASONABLE SEARCHES
AND SEIZURES' INTO WORKABLE GUIDELINES FOR THE DECISION OF PARTICULAR
CASES IS A DIFFICULT TASK," WENT ON TO OBSERVE, 

"NEVERTHELESS, ONE GOVERNING PRINCIPLE, JUSTIFIED BY HISTORY AND BY
CURRENT EXPERIENCE, HAS CONSISTENTLY BEEN FOLLOWED: EXCEPT IN CERTAIN
CAREFULLY DEFINED CLASSES OF CASES, A SEARCH OF PRIVATE PROPERTY
WITHOUT PROPER CONSENT IS 'UNREASONABLE' UNLESS IT HAS BEEN AUTHORIZED
BY A VALID SEARCH WARRANT."  387 U.S.,AT 528-529.  HE POINTED OUT, TOO,
THAT ONE'S FOURTH ADMENDMENT PROTECTION SUBSISTS APART FROM HIS BEING
SUSPECTED OF CRIMINAL BEHAVIOR.  387 U.S.,AT 530. 

        IV 

THIS NATURAL AND QUITE PROPER PROTECTIVE ATTITUDE, HOWEVER, IS NOT A
FACTOR IN THIS CASE, FOR THE SEEMINGLY OBVIOUS AND SIMPLE REASON THAT
WE ARE NOT CONCERNED HERE WITH ANY SEARCH BY THE NEW YORK SOCIAL
SERVICE AGENCY IN THE FOURTH AMENDMENT MEANING OF THAT TERM.  IT IS
TRUE THAT THE GOVERNING STATUTE AND REGULATIONS APPEAR TO MAKE
MANDATORY THE INITIAL HOME VISIT AND THE SUBSEQUENT PERIODIC "CONTACTS"
(WHICH MAY INCLUDE HOME VISITS) FOR THE INCEPTION AND CONTINUANCE OF
AID.  IT IS ALSO TRUE THAT THE CASEWORKER'S POSTURE IN THE HOME VISIT
IS PERHAPS, IN A SENSE, BOTH REHABILITATIVE AND INVESTIGATIVE.  BUT
THIS LATTER ASPECT, WE THINK, IS GIVEN TOO BROAD A CHARACTER AND FAR
MORE EMPHASIS THAN IT DESERVES IF IT IS EQUATED WITH A SEARCH IN THE
TRADITIONAL CRIMINAL LAW CONTEXT.  WE NOTE, TOO, THAT THE VISTATION IN
ITSELF IS NOT FORCED OR COMPELLED, AND THAT THE BENEFICIARY'S DENIAL OF
PERMISSION IS NOT A CRIMINAL ACT.  IF CONSENT TO THE VISITATION IS
WITHHELD, NO VISITATION TAKES PLACE.  THE AID THEN NEVER BEGINS OR
MERELY CEASES, AS THE CASE MAY BE.  THERE IS NO ENTRY OF THE HOME AND
THERE IS NO SEARCH. 

        V 

IF HOWEVER, WE WERE TO ASSUME THAT A CASEWORKER'S HOME VISIT, BEFORE
OR SUBSEQUENT TO THE BENEFICIARY'S INITIAL QUALIFICATION FOR BENEFITS,
SOMEHOW (PERHAPS BECAUSE THE AVERAGE BENEFICIARY MIGHT FEEL SHE IS IN
NO POSITION TO REFUSE CONSENT TO THE VISIT), AND DESPITE ITS INTERVIEW
NATURE, DOES POSSESS SOME OF THE CHARACTERISTICS OF A SEARCH IN THE
TRADITIONAL SENSE, WE NEVERTHELESS CONCLUDE THAT THE VISIT DOES NOT
FALL WITHIN THE FOURTH AMENDMENT'S PROSCRIPTION.  THIS IS BECAUSE IT
DOES NOT DESCEND TO THE LEVEL OF UNREASONABLENESS.  IT IS
UNREASONABLENESS WHICH IS THE FOURTH AMENDMENT'S STANDARD.  TERRY V.
OHIO, 392 U.S. 1, 9 (1968); ELKINS V. UNITED STATES, 364 U.S. 206, 222
(1960).  AND MR. CHIEF JUSTICE WARREN OBSERVED IN TERRY THAT "THE
SPECIFIC CONTENT AND INCIDENTS OF THIS RIGHT MUST BE SHAPED BY THE
CONTEXT IN WHICH IT IS ASSERTED."  392 U.S., AT 9. 

THERE ARE A NUMBER OF FACTORS THAT COMPEL US TO CONCLUDE THAT THE
HOME VISIT PROPOSED FOR MRS. JAMES IS NOT UNREASONABLE: 

1.  THE PUBLIC'S INTEREST IN THIS PARTICULAR SEGMENT OF THE AREA OF
ASSISTANCE TO THE UNFORTUNATE IS PROTECTION AND AID FOR THE DEPENDENT
CHILD WHOSE FAMILY REQUIRES SUCH AID FOR THAT CHILD.  THE FOCUS IS ON
THE CHILD AND, FURTHER, IT IS ON THE CHILD WHO IS DEPENDENT.  THERE IS
NO MORE WORTHY OBJECT OF THE PUBLIC'S CONCERN.  THE DEPENDENT CHILD'S
NEEDS ARE PARAMOUNT, AND ONLY WITH HESITANCY WOULD WE RELEGATE THOSE
NEEDS, IN THE SCALE OF COMPARATIVE VALUES, TO A POSITION SECONDARY TO
WHAT THE MOTHER CLAIMS AS HER RIGHTS. 

2.  THE AGENCY, WITH TAX FUNDS PROVIDED FROM FEDERAL AS WELL AS FROM
STATE SOURCES, IS FULFILLING A PUBLIC TRUST.  THE STATE, WORKING
THROUGH ITS QUALIFIED WELFARE AGENCY, HAS APPROPRIATE AND PARAMOUNT
INTEREST AND CONCERN IN SEEING AND ASSURING THAT THE INTENDED AND
PROPER OBJECTS OF THAT TAX-PRODUCED ASSISTANCE ARE THE ONES WHO BENEFIT
FROM THE AID IT DISPENSES.  SURELY IT IS NOT UNREASONABLE, IN THE
FOURTH AMENDMENT SENSE OR IN ANY OTHER SENSE OF THAT TERM, THAT THE
STATE HAVE AT ITS COMMAND A GENTLE MEANS, OF LIMITED EXTENT AND OF
PRACTICAL AND CONSIDERATE APPLICATION, OF ACHIEVING THAT ASSURANCE. 

3.  ONE WHO DISPENSES PURELY PRIVATE CHARITY NATURALLY HAS AN
INTEREST IN AND EXPECTS TO KNOW HOW HIS CHARITABLE FUNDS ARE UTILIZED
AND PUT TO WORK.  THE PUBLIC, WHEN IT IS THE PROVIDER, RIGHTLY EXPECTS
THE SAME.  IT MIGHT WELL EXPECT MORE, BECAUSE OF THE TRUST ASPECT OF
PUBLIC FUNDS, AND THE RECIPIENT, AS WELL AS THE CASEWORKER, HAS NOT
ONLY AN INTEREST BUT AN OBLIGATION. 

4.  THE EMPHASIS OF THE NEW YORK STATUTES AND REGULATIONS IS UPON
THE HOME, UPON "CLOSE CONTACT" WITH THE BENEFICIARY, UPON RESTORING THE
AID RECIPIENT "TO A CONDITION OF SELF-SUPPORT," AND UPON THE RELIEF OF
HIS DISTRESS.  THE FEDERAL EMPHASIS IS NO DIFFERENT.  IT IS UPON
"ASSISTANCE AND REHABILITATION," UPON MAINTAINING AND STRENGTHENING
FAMILY LIFE, AND UPON "MAXIMUM SELFSUPPORT AND PERSONAL INDEPENDENCE
CONSISTENT WITH THE MAINTENANCE OF CONTINUING PARENTAL CARE AND
PROTECTION . . . ."  42 U.S.C. 601 (1964 ED., SUPP. V); DANDRIDGE V.
WILLIAMS, 397 U.S. 471, 479 (1970), AND ID., AT 510 (HARSHALL, J.,
DISSENTING).  IT REQUIRES COOPERATION FROM THE STATE AGENCY UPON
SPECIFIED STANDARDS AND IN SPECIFIED WAYS.  AND IT IS CONCERNED ABOUT
ANY POSSIBLE EXPLOITATION OF THE CHILD.     5.  THE HOME VISIT, IT IS
TRUE, IS NOT REQUIRED BY FEDERAL STATUTE OR REGULATION.  /6/  BUT IT
HAS BEEN NOTED THAT THE VISIT IS "THE HEART OF WELFARE ADMINISTRATION";
THAT IT AFFORDS "A PERSONAL, REHABILITATIVE ORIENTATION, UNLIKE THAT OF
MOST FEDERAL PROGRAMS"; AND THAT THE "MORE PRONOUNCED SERVICE
ORIENTATION" EFFECTED BY CONGRESS WITH THE 1956 AMENDMENTS TO THE
SOCIAL SECURITY ACT "GAVE REDOUBLED IMPORTANCE TO THE PRACTICE OF HOME
VISITING."  NOTE, REHABILITATION, INVESTIGATION AND THE WELFARE HOME
VISIT, 79 YALE L.J. 746, 748 (1970).  THE HOME VISIT IS AN ESTABLISHED
ROUTINE IN STATES BESIDES NEW YORK.  /7/ 

6.  THE MEANS EMPLOYED BY THE NEW YORK AGENCY ARE SIGNIFICANT.  MRS.
JAMES RECEIVED WRITTEN NOTICE SEVERAL DAYS IN ADVANCE OF THE INTENDED
HOME VISIT.  /8/  THE DATE WAS SPECIFIED.  SECTION 134-A OF THE NEW
YORK SOCIAL SERVICES LAW, EFFECTIVE APRIL 1, 1967, AND SET FORTH IN N.
2, SUPRA, SETS THE TONE.  PRIVACY IS EMPHASIZED.  THE APPLICANT
RECIPIENT IS MADE THE PRIMARY SOURCE OF INFORMATION AS TO ELIGIBILITY. 
OUTSIDE INFORMATIONAL SOURCES, OTHER THAN PUBLIC RECORDS, ARE TO BE
CONSULTED ONLY WITH THE BENEFICIARY'S CONSENT.  FORCIBLE ENTRY OR ENTRY
UNDER FALSE PRETENSES OR VISITATION OUTSIDE WORKING HOURS OR SNOOPING
IN THE HOME ARE FORBIDDEN.  HEW HANDBOOK OF PUBLIC ASSISTANCE
ADMINISTRATION, PT. IV, SECS. 2200(A) AND 2300; 18 NYCRR SECS. 351.1,
351.6, AND 351.7.  ALL THIS MINIMIZES ANY "BURDEN" UPON THE HOMEOWNER'S
RIGHT AGAINST UNREASONABLE INTRUSION. 

7.  MRS. JAMES, IN FACT, ON THIS RECORD PRESENTS NO SPECIFIC
COMPLAINT OF ANY UNREASONABLE INTRUSION OF HER HOME AND NOTHING THAT
SUPPORTS AN INFERENCE THAT THE DESIRED HOME VISIT HAD AS ITS PURPOSE
THE OBTAINING OF INFORMATION AS TO CRIMINAL ACTIVITY.  SHE COMPLAINS OF
NO PROPOSED VISTATION AT AN AWKWARD OR RETIREMENT HOUR.  SHE SUGGESTS
NO FORCIBLE ENTRY.  SHE REFERS TO NO SNOOPING.  SHE DESCRIBES NO
IMPOLITE OR REPREHENSIBLE CONDUCT OF ANY KIND.  SHE ALLEGES ONLY, IN
GENERAL AND NONSPECIFIC TERMS, THAT ON PREVIOUS VISITS AND, ON
INFORMATION AND BELIEF, ON VISITATION AT THE HOME OF OTHER AID
RECIPIENTS, "QUESTIONS CONCERNING PERSONAL RELATIONSHIPS, BELIEFS AND
BEHAVIOR ARE RAISED AND PRESSED WHICH ARE UNNECESSARY FOR A
DETERMINATION OF CONTINUING ELIGIBILITY."  PARADOXICALLY, THIS SAME
COMPLAINT COULD BE MADE OF A CONFERENCE HELD ELSEWHERE THAN IN THE
HOME, AND YET THIS IS WHAT IS SOUGHT BY MRS. JAMES.  THE SAME COMPLAINT
COULD BE MADE OF THE CENSUS TAKER'S QUESTIONS.  SEE MR. JUSTICE
MARSHALL'S OPINION, AS UNITED STATES CIRCUIT JUDGE, IN UNITED STATES V.
RICKENBACKER, 309 F.2D 462 (CA2 1962), CERT. DENIED, 371 U.S. 962. 
WHAT MRS. JAMES APPEARS TO WANT FROM THE AGENCY THAT PROVIDES HER AND
HER INFANT SON WITH THE NECESSITIES FOR LIFE IS THE RIGHT TO RECEIVE
THOSE NECESSITIES UPON HER OWN INFORMATIONAL TERMS, TO UTILIZE THE
FOURTH AMENDMENT AS A WEDGE FOR IMPOSING THOSE TERMS, AND TO AVOID
QUESTIONS OF ANY KIND.  /9/ 

8.  WE ARE NOT PERSUADED, AS MRS. JAMES WOULD HAVE US BE, THAT ALL
INFORMATION PERTINENT TO THE ISSUE OF ELIGIBILITY CAN BE OBTAINED BY
THE AGENCY THROUGH AN INTERVIEW AT A PLACE OTHER THAN THE HOME, OR, AS
THE DISTRICT COURT MAJORITY SUGGESTED, BY EXAMINING A LEASE OR A BIRTH
CERTIFICATE, OR BY PERIODIC MEDICAL EXAMINATIONS, OR BY INTERVIEWS WITH
SCHOOL PERSONNEL.  303 F.SUPP.,AT 943.  ALTHOUGH THESE SECONDARY
SOURCES MIGHT BE HELPFUL, THEY WOULD NOT ALWAYS ASSURE VERIFICATION OF
ACTUAL RESIDENCE OR OF ACTUAL PHYSICAL PRESENCE IN THE HOME, WHICH ARE
REQUISITES FOR AFDC BENEFITS, /10/  OR OF IMPENDING MEDICAL NEEDS. 
AND, OF COURSE, LITTLE CHILDREN, SUCH AS MAURICE JAMES, ARE NOT YET
REGISTERED IN SCHOOL. 

9.  THE VISIT IS NOT ONE BY POLICE OR UNIFORMED AUTHORITY.  IT IS
MADE BY A CASEWORKER OF SOME TRAINING /11/  WHOSE PRIMARY OBJECTIVE IS,
OR SHOULD BE, THE WELFARE, NOT THE PROSECUTION, OF THE AID RECIPIENT
FOR WHOM THE WORKER HAS PROFOUND RESPONSIBILITY.  AS HAS ALREADY BEEN
STRESSED, THE PROGRAM CONCERNS DEPENDENT CHILDREN AND THE NEEDY
FAMILIES OF THOSE CHILDREN.  IT DOES NOT DEAL WITH CRIME OR WITH THE
ACTUAL OR SUSPECTED PERPETRATORS OF CRIME.  THE CASEWORKER IS NOT A
SLEUTH BUT RATHER, WE TRUST, IS A FRIEND TO ONE IN NEED. 

10.  THE HOME VISIT IS NOT A CRIMINAL INVESTIGATION, DOES NOT EQUATE
WITH A CRIMINAL INVESTIGATION, AND DESPITE THE ANNOUNCED FEARS OF MRS.
JAMES AND THOSE WHO WOULD JOIN HER, IS NOT IN AID OF ANY CRIMINAL
PROCEEDING.  IF THE VISITATION SERVES TO DISCOURAGE MISREPRESENTATION
OR FRAUD, SUCH A BYPRODUCT OF THAT VISIT DOES NOT IMPRESS UPON THE
VISIT ITSELF A DOMINANT CRIMINAL INVESTIGATIVE ASPECT.  AND IF THE
VISIT SHOULD, BY CHANCE, LEAD TO THE DISCOVERY OF FRAUD AND A CRIMINAL
PROSECUTION SHOULD FOLLOW, /12/  THEN, EVEN ASSUMING THAT THE EVIDENCE
DISCOVERED UPON THE HOME VISITATION IS ADMISSIBLE, AS ISSUE UPON WHICH
WE EXPRESS NO OPINION, THAT IS A ROUTINE AND EXPECTED FACT OF LIFE AND
A CONSEQUENCE NO GREATER THAN THAT WHICH NECESSARILY ENSUES UPON ANY
OTHER DISCOVERY BY A CITIZEN OF CRIMINAL CONDUCT. 

11.  THE WARRANT PROCEDURE, WHICH THE PLAINTIFF APPEARS TO CLAIM TO
BE SO PRECIOUS TO HER, EVEN IF CIVIL IN NATURE, IS NOT WITHOUT ITS
SERIOUSLY OBJECTIONABLE FEATURES IN THE WELFARE CONTEXT.  IF A WARRANT
COULD BE OBTAINED (THE PLAINTIFF AFFORDS US LITTLE HELP AS TO HOW IT
WOULD BE OBTAINED), IT PRESUMABLY COULD BE APPLIED FOR EX PARTE, ITS
EXECUTION WOULD REQUIRE NO NOTICE, IT WOULD JUSTIFY ENTRY BY FORCE, AND
ITS HOURS FOR EXECUTION /13/ WOULD NOT BE SO LIMITED AS THOSE
PRESCRIBED FOR HOME VISITATION.  THE WARRANT NECESSARILY WOULD IMPLY
CONDUCT EITHER CRIMINAL OR OUT OF COMPLIANCE WITH AN ASSERTED GOVERNING
STANDARD.  OF COURSE, THE FORCE BEHIND THE WARRANT ARGUMENT, WELCOME TO
THE ONE ASSERTING IT, IS THE FACT THAT IT WOULD HAVE TO REST UPON
PROBABLE CAUSE, AND PROBABLE CAUSE IN THE WELFARE CONTEXT, AS MRS.
JAMES CONCEDES, REQUIRES MORE THAN THE MERE NEED OF THE CASEWORKER TO
SEE THE CHILD IN THE HOME AND TO HAVE ASSURANCE THAT THE CHILD IS THERE
AND IS RECEIVING THE BENEFIT OF THE AID THAT HAS BEEN AUTHORIZED FOR
IT.  IN THIS SETTING THE WARRANT ARGUMENT IS OUT OF PLACE. 

IT SEEMS TO US THAT THE SITUATION IS AKIN TO THAT WHERE AN INTERNAL
REVENUE SERVICE AGENT, IN MAKING A ROUTINE CIVIL AUDIT OF A TAXPAYER'S
INCOME TAX RETURN, ASKS THAT THE TAXPAYER PRODUCE FOR THE AGENT'S
REVIEW SOME PROOF OF A DEDUCTION THE TAXPAYER HAS ASSERTED TO HIS
BENEFIT IN THE COMPUTATION OF HIS TAX.  IF THE TAXPAYER REFUSES, THERE
IS, ABSENT FRAUD, ONLY A DISALLOWANCE OF THE CLAIMED DEDUCTION AND A
CONSEQUENT ADDITIONAL TAX.  THE TAXPAYER IS FULLY WITHIN HIS "RIGHTS"
IN REFUSING TO PRODUCE THE PROOF, BUT IN MAINTAINING AND ASSERTING
THOSE RIGHTS A TAX DETRIMENT RESULTS AND IT IS A DETRIMENT OF THE
TAXPAYER'S OWN MAKING.  SO HERE MRS. JAMES HAS THE "RIGHT" TO REFUSE
THE HOME VISIT, BUT A CONSEQUENCE IN THE FORM OF CESSATION OF AID,
SIMILAR TO THE TAXPAYER'S RESULTANT ADDITIONAL TAX, FLOWS FROM THAT
REFUSAL.  THE CHOICE IS ENTIRELY HERS, AND NOTHING OF CONSTITUTIONAL
MAGNITUDE IS INVOLVED. 

        VI 

CAMARA V. MUNICIPAL COURT, 387 U.S. 523 (1967), AND ITS COMPANION
CASE, SEE V. CITY OF SEATTLE, 387 U.S. 541 (1967), BOTH BY A DIVIDED
COURT, ARE NOT INCONSISTENT WITH OUR RESULT HERE.  THOSE CASES
CONCERNED, RESPECTIVELY, A REFUSAL OF ENTRY TO CITY HOUSING INSPECTORS
CHECKING FOR A VIOLATION OF A BUILDING'S OCCUPANCY PERMIT, AND A
REFUSAL OF ENTRY TO A FIRE DEPARTMENT REPRESENTATIVE INTERESTED IN
COMPLIANCE WITH A CITY'S FIRE CODE.  IN EACH CASE A MAJORITY OF THIS
COURT HELD THAT THE FOURTH AMENDMENT BARRED PROSECUTION FOR REFUSAL TO
PERMIT THE DESIRED WARRANTLESS INSPECTION.  FRANK V. MARYLAND, 359 U.S.
360 (1959), A CASE THAT REACHED AN OPPOSING RESULT AND THAT CONCERNED A
REQUEST BY A HEALTH OFFICER FOR ENTRY IN ORDER TO CHECK THE SOURCE OF A
RAT INFESTATION, WAS PRO TANTO OVERRULED.  BOTH FRANK AND CAMARA
INVOLVED DWELLING QUARTERS.  SEE HAD TO DO WITH A COMMERCIAL
WAREHOUSE. 

BUT THE FACTS OF THE THREE CASES ARE SIGNIFICANTLY DIFFERENT FROM
THOSE BEFORE US.  EACH CONCERNED A TRUE SEARCH FOR VIOLATIONS.  FRANK
WAS A CRIMINAL PROSECUTION FOR THE OWNER'S REFUSAL TO PERMIT ENTRY. 
SO, TOO, WAS SEE.  CAMARA HAD TO DO WITH A WRIT OF PROHIBITION SOUGHT
TO PREVENT AN ALREADY PENDING CRIMINAL PROSECUTION.  THE COMMUNITY
WELFARE ASPECTS, OF COURSE, WERE HIGHLY IMPORTANT, BUT EACH CASE AROSE
IN A CRIMINAL CONTEXT WHERE A GENUINE SEARCH WAS DENIED AND PROSECUTION
FOLLOWED. 

IN CONTRAST, MRS. JAMES IS NOT BEING PROSECUTED FOR HER REFUSAL TO
PERMIT THE HOME VISIT AND IS NOT ABOUT TO BE SO PROSECUTED.  HER WISHES
IN THAT RESPECT ARE FULLY HONORED.  WE HAVE NOT BEEN TOLD, AND HAVE NOT
FOUND, THAT HER REFUSAL IS MADE A CRIMINAL ACT BY ANY APPLICABLE NEW
YORK OR FEDERAL STATUTE.  THE ONLY CONSEQUENCE OF HER REFUSAL IS THAT
THE PAYMENT OF BENEFITS CEASES.  IMPORTANT AND SERIOUS AS THIS IS, THE
SITUATION IS NO DIFFERENT THAN IF SHE HAD EXERCISED A SIMILAR NEGATIVE
CHOICE INITIALLY AND REFRAINED FROM APPLYING FOR AFDC BENEFITS.  IF A
STATUTE MADE HER REFUSAL A CRIMINAL OFFENSE, AND IF THIS CASE WERE ONE
CONCERNING HER PROSECUTION UNDER THAT STATUTE, CAMARA AND SEE WOULD
HAVE CONCEIVABLE PERTINENCY. 

VII 

OUR HOLDING TODAY DOES NOT MEAN, OF COURSE, THAT A TERMINATION OF
BENEFITS UPON REFUSAL OF A HOME VISIT IS TO BE UPHELD AGAINST
CONSTITUTIONAL CHALLENGE UNDER ALL CONCEIVABLE CIRCUMSTANCES.  THE
EARLY MORNING MASS RAID UPON HOMES OF WELFARE RECIPIENTS IS NOT
UNKNOWN.  SEE PARRISH V. CIVIL SERVICE COMM'N, 66 CAL.2D 260, 425 P.2D
223 (1967); REICH, MIDNIGHT WELFARE SEARCHES AND THE SOCIAL SECURITY
ACT, 72 YALE L.J. 1347 (1963).  BUT THAT IS NOT THIS CASE.  FACTS OF
THAT KIND PRESENT ANOTHER CASE FOR ANOTHER DAY. 

WE THEREFORE CONCLUDE THAT THE HOME VISITATION AS STRUCTURED BY THE
NEW YORK STATUTES AND REGULATIONS IS A REASONABLE ADMINISTRATIVE TOOL;
THAT IT SERVES A VALID AND PROPER ADMINISTRATIVE PURPOSE FOR THE
DISPENSATION OF THE AFDC PROGRAM; THAT IT IS NOT AN UNWARRANTED
INVASION OF PERSONAL PRIVACY; AND THAT IT VIOLATES NO RIGHT GUARANTEED
BY THE FOURTH AMENDMENT. 

REVERSED AND REMANDED WITH DIRECTIONS TO ENTER A JUDGMENT OF
DISMISSAL. 

              IT IS SO ORDERED. 

/1/  IN GOLDBERG V. KELLY, 397 U.S. 254, 256 N. 1 (1970), THE COURT
OBSERVED THAT AFDC IS A CATEGORICAL ASSISTANCE PROGRAM SUPPORTED BY
FEDERAL GRANTS-IN-AID BUT ADMINISTERED BY THE STATES ACCORDING TO
REGULATIONS OF THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE.  SEE
NEW YORK SOCIAL SERVICES LAW SECS. 343-362 (1966 AND SUPP. 1969-1970). 
ASPECTS OF AFDC HAVE BEEN CONSIDERED IN KING V. SMITH, 392 U.S. 309
(1968); SHAPIRO V. THOMPSON, 394 U.S. 618 (1969); GOLDBERG V. KELLY,
SUPRA; ROSADO V. WYMAN, 397 U.S. 397 (1970); AND DANDRIDGE V. WILLIAMS,
397 U.S. 471 (1970). 

/2/  "SEC.  134.  SUPERVISION 

"THE PUBLIC WELFARE OFFICIALS RESPONSIBLE . . . FOR INVESTIGATING
ANY APPLICATION FOR PUBLIC ASSISTANCE AND CARE, SHALL MAINTAIN CLOSE
CONTACT WITH PERSONS GRANTED PUBLIC ASSISTANCE AND CARE.  SUCH PERSONS
SHALL BE VISITED AS FREQUENTLY AS IS PROVIDED BY THE RULES OF THE BOARD
AND/OR REGULATIONS OF THE DEPARTMENT OR REQUIRED BY THE CIRCUMSTANCES
OF THE CASE, IN ORDER THAT ANY TREATMENT OR SERVICE TENDING TO RESTORE
SUCH PERSONS TO A CONDITION OF SELF-SUPPORT AND TO RELIEVE THEIR
DISTRESS MAY BE RENDERED AND IN ORDER THAT ASSISTANCE OR CARE MAY BE
GIVEN ONLY IN SUCH AMOUNT AND AS LONG AS NECESSARY . . . . THE
CIRCUMSTANCES OF A PERSON RECEIVING CONTINUED CARE SHALL BE
REINVESTIGATED AS FREQUENTLY AS THE RULES OF THE BOARD OR REGULATIONS
OF THE DEPARTMENT MAY REQUIRE." 

1967, PROVIDES: 

"IN ACCORDANCE WITH REGULATIONS OF THE DEPARTMENT, ANY INVESTIGATION
OR REINVESTIGATION OF ELIGIBILITY . . . SHALL BE LIMITED TO THOSE
FACTORS REASONABLY NECESSARY TO INSURE THAT EXPENDITURES SHALL BE IN
ACCORD WITH APPLICABLE PROVISIONS OF THIS CHAPTER AND THE RULES OF THE
BOARD AND REGULATIONS OF THE DEPARTMENT AND SHALL BE CONDUCTED IN SUCH
MANNER SO AS NOT TO VIOLATE ANY CIVIL RIGHT OF THE APPLICANT OR
RECIPIENT.  IN MAKING SUCH INVESTIGATION OR REINVESTIGATION, SOURCES OF
INFORMATION, OTHER THAN PUBLIC RECORDS, SHALL BE CONSULTED ONLY WITH
THE PERMISSION OF THE APPLICANT OR RECIPIENT.  HOWEVER, IF SUCH
PERMISSION IS NOT GRANTED BY THE APPLICANT OR RECIPIENT, THE
APPROPRIATE PUBLIC WELFARE OFFICIAL MAY DENY, SUSPEND OR DISCONTINUE
PUBLIC ASSISTANCE OR CARE UNTIL SUCH TIME AS HE MAY BE SATISFIED THAT
SUCH APPLICANT OR RECIPIENT IS ELIGIBLE THEREFOR." 

/3/  "MANDATORY VISITS MUST BE MADE IN ACCORDANCE WITH LAW THAT
REQUIRES THAT PERSONS BE VISITED AT LEAST ONCE EVERY THREE MONTHS IF
THEY ARE RECEIVING . . . AID TO DEPENDENT CHILDREN . . . ." 

/4/  "SECTION 351.10.  REQUIRED HOME VISITS AND CONTACTS.  SOCIAL
INVESTIGATION AS DEFINED AND ESCRIBED . . . SHALL BE MADE OF EACH
APPLICATION OR REAPPLICATION FOR PUBLIC ASSISTANCE OR CARE AS THE BASIS
FOR DETERMINATION OF INITIAL ELIGIBILITY. 

"A.  DETERMINATION OF INITIAL ELIGIBILITY SHALL INCLUDE CONTACT WITH
THE APPLICANT AND AT LEAST ONE HOME VISIT WHICH SHALL BE MADE PROMPTLY
IN ACCORDANCE WITH AGENCY POLICY . . . ." 

"SECTION 351.21.  REQUIRED CONTACTS.  CONTACTS WITH RECIPIENTS AND
COLLATERAL SOURCES SHALL BE ADEQUATE AS TO CONTENT AND FREQUENCY AND
SHALL INCLUDE HOME VISITS, OFFICE INTERVIEWS, CORRESPONDENCE, REPORTS
ON RESOURCES AND OTHER NECESSARY DOCUMENTATION." 

OR MINOR.  A CHILD OR MINOR SHALL BE CONSIDERED TO BE ELIGIBLE FOR ADC
IF HIS HOME SITUATION IS ONE IN WHICH HIS PHYSICAL, MENTAL AND MORAL
WELL-BEING WILL BE SAFEGUARDED AND HIS RELIGIOUS FAITH PRESERVED AND
PROTECTED.  (1) IN DETERMINING THE ABILITY OF A PARENT OR RELATIVE TO
CARE FOR THE CHILD SO THAT THIS PURPOSE IS ACHIEVED, THE HOME SHALL BE
JUDGED BY THE SAME STANDARDS AS ARE APPLIED TO SELFMAINTAINING FAMILIES
IN THE COMMUNITY.  WHEN, AT THE TIME OF APPLICATION, A HOME DOES NOT
MEET THE USUAL STANDARDS OF HEALTH AND DECENCY BUT THE WELFARE OF THE
CHILD IS NOT ENDANGERED, ADC SHALL BE GRANTED AND DEFINED SERVICES
PROVIDED IN AN EFFORT TO IMPROVE THE SITUATION.  WHERE APPROPRIATE,
CONSULTATION OR DIRECT SERVICE SHALL BE REQUESTED FROM CHILD WELFARE." 
/5/  NO ISSUE OF PROCEDURAL DUE PROCESS IS RAISED IN THIS CASE.  CF.
GOLDBERG V. KELLY, 397 U.S. 254 (1970), AND WHEELER V. MONTGOMERY, 397
U.S. 280 (1970). 

/6/  THE FEDERAL REGULATIONS REQUIRE ONLY PERIODIC REDETERMINATIONS
OF ELIGIBILITY.  HEW HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION, PT.
IV, SEC. 2200(D).  BUT THEY ALSO REQUIRE VERIFICATION OF ELIGIBILITY BY
MAKING FIELD INVESTIGATIONS "INCLUDING HOME VISITS" IN A SELECTED
SAMPLE OF CASES.  PT. II, SEC. 6200(A)(3). 

/7/  SEE, E.G., ALA., MANUAL FOR ADMINISTRATION OF PUBLIC
ASSISTANCE, PT. I-8(B) (1968 REV.); ARIZ., REGULATIONS PROMULGATED
PURSUANT TO REV. STAT. ANN. 46-203 (1956), REG. 3-203.6 (1968); ARK.
STAT. ANN. 83-131 (1960); CAL. STATE DEPT. OF SOCIAL WELFARE HANDBOOK,
C-012.50 (1964); COLO. REV. STAT. ANN. 119-9-1 ET SEQ. (SUPP. 1967), AS
AMENDED, LAWS 1969, C. 279; FLA. PUBLIC ASSISTANCE C. 100; GA. DIVISION
OF SOCIAL ADMINISTRATION-- PUBLIC ASSISTANCE MANUAL, T. III, VD)(2),
PT. VIIIA)(1)(B) (1969); ILL. REV. STAT., C. 23, 4-7 (1967); IND. ANN.
STAT. 52-1247 (1964), DEPT. PUB. WELFARE, RULES & REGS., REG. 2-403
(1965); MICH. PUBLIC ASSISTANCE MANUAL, ITEM 243(3)(F)(REV.)  (1967);
MISS.  CODE ANN. 7177 (1942) (LAWS OF 1940, C.294); MO. PUBLIC
ASSISTANCE MANUAL, DEPT. OF WELFARE, III (1969); NEBRASKA, STATE PLAN
AND MANUAL REGULATIONS, PT. IX, SECS. 5760, 5771; N.J., MANUAL OF
ADMINISTRATION, DIVISION OF PUBLIC WELFARE, PT. II, SECS. 2120, 2122
(1969); N.M. STAT. ANN. SEC. 13-1-13 (1953), HEALTH AND SOCIAL SERVTCES
DEPT. MANUAL, SECS. 211.5, 272.11; S.C. DEPT. OF PUBLIC WELFARE MANUAL,
VOL. IVD)(2); S.D. COMP. LAWS ANN. 28-7-7 (1967) (FORMERLY S.D. CODE
55.3805); TENN. CODE ANN. 14.309 (1955), PUBLIC ASSISTANCE MANUAL, VOL.
II, P. 212 (1968 REV.); WIS. STAT. 49.19(2) (1967). 

/8/  IT IS TRUE THAT THE RECORD CONTAINS 12 AFFIDAVITS, ALL
ESSENTIALLY IDENTICAL, OF AID RECIPIENTS (OTHER THAN MRS. JAMES) WHICH
RECITE THAT A CASEWORKER "MOST OFTEN" COMES WITHOUT NOTICE; THAT WHEN
HE DOES, THE PLANS THE RECIPIENT HAD FOR THAT TIME CANNOT BE CARRIED
OUT; THAT THE VISIT IS "VERY EMBARRASSING TO ME IF THE CASEWORKER COMES
WHEN I HAVE COMPANY"; AND THAT THE CASEWORKER "SOMETIMES ASKS VERY
PERSONAL QUESTIONS" IN FRONT OF CHILDREN. 

/9/  WE HAVE EXAMINED MRS. JAMES' CASE RECORD WITH THE NEW YORK CITY
DEPARTMENT OF SOCIAL SERVICES, WHICH, AS AN EXHIBIT, ACCOMPANIED
DEFENDANT WYMAN'S ANSWER.  IT DISCLOSES NUMEROUS INTERVIEWS FROM THE
TIME OF THE INITIAL ONE ON APRIL 27, 1967, UNTIL THE ATTEMPTED
TERMINATION IN JUNE 1969.  THE RECORD IS REVEALING AS TO MRS. JAMES'
FAILURE EVER REALLY TO TO SATISFY THE REQUIREMENTS FOR ELIGIBILITY; AS
TO CONSTANT AND PEPEATED DEMANDS; AS TO ATTITUDE TOWARD THE CASEWORKER;
AS TO RELUCTANCE TO COOPERATE; AS TO EVASIVENESS; AND AS TO OCCASIONAL
BELIGERENCY.  THERE ARE INDICATIONS THAT ALL WAS NOT ALWAYS WELL WITH
THE INFANT MAURICE (SKULL FRACTURE, A DENT IN THE HEAD, A POSSIBLE RAT
BITE).  THE PICTURE IS A SAD AND UNHAPPY ONE. 

/10/  SEC. 406(A) OF THE SOCIAL SECURITY ACT, AS AMENDED, 42 U.S.C.
606(A)(1964 ED., SUPP. V); SEC 349B1 OF THE NEW YORK SOCIAL SERVICES
LAW. 

/11/  THE AMICUS BRIEF SUBMITTED ON BEHALF OF THE SOCIAL SERVICES
EMPLOYEES UNION LOCAL 371, AFSCME, AFL-CIO, THE BARGAINING
REPRESENTATIVE FOR THE SOCIAL SERVICE STAFF EMPLOYED IN THE NEW YORK
CITY DEPARTMENT OF SOCIAL SERVICES, RECITES THAT "CASEWORKERS ARE
EITHER BADLY TRAINED OR UNTRAINED" AND THAT "(GENERALLY, A CASEWORKER
IS NOT ONLY POORLY TRAINED, BUT ALSO YOUNG AND INEXPERIENCED . . . ." 
DESPITE THIS ASTONISHING DESCRIPTION BY THE UNION OF THE LACK OF
QUALIFICATION OF ITS OWN MEMBERS FOR THE WORK THEY ARE EMPLOYED TO DO,
WE MUST ASSUME THAT THE CASEWORKER POSSESSES AT LEAST SOME
QUALIFICATIONS AND SOME DEDICATION TO DUTY. 

/12/  SEE, FOR EXAMPLE, NEW YORK SOCIAL SERVICES LAW SEC. 145. 

/13/  NEW YORK CODE CRIM. PROC. 801. 

MR. JUSTICE WHITE CONCURS IN THE JUDGMENT AND JOINS THE OPINION OF
THE COURT WITH THE EXCEPTION OF PART IV THEREOF. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WE ARE LIVING IN A SOCIETY WHERE ONE OF THE MOST IMPORTANT FORMS OF
PROPERTY IS GOVERNMENT LARGESSE WHICH SOME CALL THE "NEW PROPERTY." 
/1/  THE PAYROLLS OF GOVERNMENT ARE BUT ONE ASPECT OF THAT "NEW
PROPERTY."  DEFENSE CONTRACTS, HIGHWAY CONTRACTS, AND THE OTHER
MULTIFARIOUS FORMS OF CONTRACTS ARE ANOTHER PART.  SO ARE SUBSIDIES TO
AIR, RAIL, AND OTHER CARRIERS.  SO ARE DISBURSEMENTS BY GOVERNMENT FOR
SCIENTIFIC RESEARCH.  /2/  SO ARE TV AND RADIO LICENSES TO USE THE AIR
SPACE WHICH OF COURSE IS PART OF THE PUBLIC DOMAIN.  OUR CONCERN HERE
IS NOT WITH THOSE SUBSIDIES BUT WITH GRANTS THAT DIRECTLY OR INDIRECTLY
IMPLICATE THE HOME LIFE OF THE RECIPIENTS. 

IN 1969 ROUGHLY 127 BILLION DOLLARS WERE SPENT BY THE FEDERAL,
STATE, AND LOCAL GOVERNMENTS ON "SOCIAL WELFARE."  /3/  TO FARMERS
ALONE ALMOST FOUR BILLION DOLLARS WERE PAID, IN PART FOR NOT GROWING
CERTAIN CROPS.  ALMOST 129,000 FARMERS RECEIVED $5,000 OR MORE, THEIR
TOTAL BENEFITS EXCEEDING $1,450,000,000.  /4/  THOSE PAYMENTS WERE IN
SOME INSTANCES VERY LARGE, A FEW RUNNING A MILLION OR MORE A YEAR.  BUT
THE MAJORITY WERE PAYMENTS UNDER $5,000 EACH. 

YET ALMOST EVERY BENEFICIARY WHETHER RICH OR POOR, RURAL OR URBAN,
HAS A "HOUSE"-- ONE OF THE PLACES PROTECTED BY THE FOURTH AMENDMENT
AGAINST "UNREASONABLE SEARCHES AND SEIZURES."  /5/  THE QUESTION IN
THIS CASE IS WHETHER RECEIPT OF LARGESSE FROM THE GOVERNMENT MAKES THE
HOME OF THE BENEFICIARY SUBJECT TO ACCESS BY AN INSPECTOR OF THE AGENCY
OF OVERSIGHT, EVEN THOUGH THE BENEFICIARY OBJECTS TO THE INTRUSION AND
EVEN THOUGH THE FOURTH AMENDMENT'S PROCEDURE FOR ACCESS TO ONE'S HOUSE
OR HOME IS NOT FOLLOWED.  THE PENALTY HERE IS NOT, OF COURSE, INVASION
OF THE PRIVACY OF BARBARA JAMES, ONLY HER LOSS OF FEDERAL OR STATE
LARGESSE.  THAT HOWEVER, IS MERELY REPHRASING THE PROBLEM.  WHATEVER
THE SEMANTICS, THE CENTRAL QUESTION IS WHETHER THE GOVERNMENT BY FORCE
OF ITS LARGESSE HAS THE POWER TO "BUY UP" RIGHTS GUARANTEED BY THE
CONSTITUTION.  /6/  BUT FOR THE ASSERTION OF HER CONSTITUTIONAL RIGHT,
BARBARA JAMES IN THIS CASE WOULD HAVE RECEIVED THE WELFARE BENEFIT. 

WE SPOKE IN SPEISER V. RANDALL, 357 U.S. 513, OF THE DENIAL OF TAX
EXEMPTIONS BY A STATE BECAUSE OF EXERCISE OF FIRST AMENDMENT RIGHTS. 

"IT CANNOT BE GAINSAID THAT A DISCRIMINATORY DENIAL OF A TAX

  EXEMPTION FOR ENGAGING IN SPEECH IS A LIMITATION ON FREE SPEECH .

  . . . TO DENY AN EXEMPTION FOR ENGAGING IN SPEECH IS A LIMITATION

  ON FREE SPEECH.  . . . TO DENY AN EXEMPTION TO CLAIMANTS WHO

  ENGAGE IN CERTAIN FORMS OF SPEECH IS IN EFFECT TO PENALIZE THEM

  FOR SUCH SPEECH.  ITS DETERRENT EFFECT IS THE SAME AS IF THE

  STATE WERE TO FINE THEM FOR THIS SPEECH."  ID., AT 518. 

LIKEWISE, WHILE SECOND-CLASS MAIL RATES MAY BE GRANTED OR WITHHELD
BY THE GOVERNMENT, WE WOULD NOT ALLOW THEM TO BE GRANTED "ON CONDITION
THAT CERTAIN ECONOMIC OR POLITICAL IDEAS NOT BE DISSEMINATED." 
HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, 156. 

IN SHERBERT V. VERNER, 374 U.S. 398, A STATE PROVIDING UNEMPLOYMENT
INSURANCE REQUIRED RECIPIENTS TO ACCEPT SUITABLE EMPLOYMENT WHEN IT
BECAME AVAILABLE OR LOSE THE BENEFITS.  AN UNEMPLOYED LADY WAS OFFERED
A JOB REQUIRING HER TO WORK SATURDAYS BUT SHE REFUSED BECAUSE SHE WAS A
SEVENTH DAY ADVENTIST TO WHOM SATURDAY WAS THE SABBATH.  THE STATE
CANCELED HER UNEMPLOYMENT BENEFITS AND WE REVERSED, SAYING: 

"THE RULING FORCES HER TO CHOOSE BETWEEN FOLLOWING THE PRECEPTS OF
HER RELIGION AND FORFEITING BENEFITS, ON THE ONE HAND, AND ABANDONING
ONE OF THE PRECEPTS OF HER RELIGION IN ORDER TO ACCEPT WORK, ON THE
OTHER HAND.  GOVERNMENTAL IMPOSITION OF SUCH A CHOICE PUTS THE SAME
KIND OF BURDEN UPON THE FREE EXERCISE OF RELIGION AS WOULD A FINE
IMPOSED AGAINST APPELLANT FOR HER SATURDAY WORSHIP. 

     "NOR MAY THE SOUTH CAROLINA COURT'S CONSTRUCTION OF THE
STATUTE

  BE SAVED FROM CONSTITUTIONAL INFIRMITY ON THE GROUND THAT

  UNEMPLOYMENT COMPENSATION BENEFITS ARE NOT APPELLANT'S 'RIGHT'

  BUT MERELY A 'PRIVILEGE.'  IT IS TOO LATE IN THE DAY TO DOUBT

  THAT THE LIBERTIES OF RELIGION AND EXPRESSION MAY BE INFRINGED BY

  THE DENIAL OF OR PLACING OF CONDITIONS UPON A BENEFIT OR

  PRIVILEGE . . . . (TO CONDITION THE AVAILABILITY OF BENEFITS UPON

  THIS APPELLANT'S WILLINGNESS TO VIOLATE A CARDINAL PRINCIPLE OF

  HER RELIGIOUS FAITH EFFECTIVELY PENALIZES THE FREE EXERCISE OF

  HER CONSTITUTIONAL LIBERTIES."  ID., AT 404, 406. 

THESE CASES ARE IN THE TRADITION OF UNITED STATES V. CHICAGO, M.,
ST. P. & P.R. CO., 282 U.S. 311, 328-329, /7/  WHERE MR. JUSTICE
SUTHERLAND, WRITING FOR THE COURT, SAID: 

"(THE RULE IS THAT THE RIGHT TO CONTINUE THE EXERCISE OF A PRIVILEGE
GRANTED BY THE STATE CANNOT BE MADE TO DEPEND UPON THE GRANTEE'S
SUBMISSION TO A CONDITION PRESCRIBED BY THE STATE WHICH IS HOSTILE TO
THE PROVISIONS OF THE FEDERAL CONSTITUTION."  /8/ 

WHAT WE SAID IN THOSE CASES IS AS APPLICABLE TO FOURTH AMENDMENT
RIGHTS AS TO THOSE OF THE FIRST.  THE FOURTH, OF COURSE, SPEAKS OF
"UNREASONABLE" SEARCHES AND SEIZURES, WHILE THE FIRST IS WRITTEN IN
ABSOLUTE TERMS.  BUT THE RIGHT OF PRIVACY WHICH THE FOURTH PROTECTS IS
PERHAPS AS VIVID IN OUR LIVES AS THE RIGHT OF EXPRESSION SPONSORED BY
THE FIRST.  GRISWOLD V. CONNECTICUT, 381 U.S. 479, 484.  IF THE REGIME
UNDER WHICH BARBARA JAMES LIVES WERE ENTERPRISE CAPITALISM AS, FOR
EXAMPLE, IF SHE RAN A SMALL FACTORY GEARED INTO THE PENTAGON'S
PROCUREMENT PROGRAM, SHE CERTAINLY WOULD HAVE A RIGHT TO DENY
INSPECTORS ACCESS TO HER HOME UNLESS THEY CAME WITH A WARRANT. 

THAT IS THE TEACHING OF CAMARA V. MUNICIPAL COURT, 387 U.S. 523, AND
SEE V. CITY OF SEATTLE, 387 U.S. 541.  IN THOSE CASES WE OVERRULED
FRANK V. MARYLAND, 359 U.S. 360, AND HELD THE FOURTH AMENDMENT
APPLICALBE TO ADMINISTRATIVE SEARCHES OF BOTH THE HOME AND A BUSINESS. 
THE APPLICABLE PRINCIPLE, AS STATED IN CAMARA AS "JUSTIFIED BY HISTORY
AND BY CURRENT EXPERIENCE" IS THAT "EXCEPT IN CERTAIN CAREFULLY DEFINED
CLASSES OF CASES, A SEARCH OF PRIVATE PROPERTY WITHOUT PROPER CONSENT
IS 'UNREASONABLE' UNLESS IT HAS BEEN AUTHORIZED BY A VALID SEARCH
WARRANT."  387 U.S.,AT 528-529.  IN SEE WE ADDED THAT THE "BUSINESSMAN,
LIKE THE OCCUPANT OF A RESIDENCE, HAS A CONSTITUTIONAL RIGHT TO GO
ABOUT HIS BUSINESS FREE FROM UNREASONABLE OFFICIAL ENTRIES UPON HIS
PRIVATE COMMERCIAL PROPERTY."  ID., AT 543.  THERE IS NOT THE SLIGHTEST
HINT IN SEE THAT THE GOVERNMENT COULD CONDITION A BUSINESS LICENSE ON
THE "CONSENT" OF THE LICENSEE TO THE ADMINISTRATIVE SEARCHES WE HELD
VIOLATED THE FOURTH AMENDMENT.  IT IS A STRANGE JURISPRUDENCE INDEED
WHICH SAFEGUARDS THE BUSINESSMAN AT HIS PLACE OF WORK FROM WARRANTLESS
SEARCHES BUT WILL NOT DO THE SAME FOR A MOTHER IN HER HOME. 

IS A SEARCH OF HER HOME WITHOUT A WARRANT MADE "REASONABLE" MERELY
BECAUSE SHE IS DEPENDENT ON GOVERNMENT LARGESSE? 

JUDGE SKELLY WRIGHT HAS STATED THE PROBLEM SUCCINCTLY: 

     "WELFARE HAS LONG BEEN CONSIDERED THE EQUIVALENT OF CHARITY
AND

  ITS RECIPIENTS HAVE BEEN SUBJECTED TO ALL KINDS OF DEHUMANIZING

  EXPERIENCES IN THE GOVERNMENT'S EFFORT TO POLICE ITS WELFARE

  PAYMENTS.  IN FACT, OVER HALF A BILLION DOLLARS ARE EXPENDED

ANNUALLY FOR ADMINISTRATION AND POLICING IN CONNECTION WITH THE

  AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM.  WHY SUCH LARGE

  SUMS ARE NECESSARY FOR ADMINISTRATION AND POLICING HAS NEVER BEEN

  ADEQUATELY EXPLAINED.  NO SUCH SUMS ARE SPENT POLICING THE

  GOVERNMENT SUBSIDIES GRANTED TO FARMERS, AIRLINES, STEAMSHIP

  COMPANIES, AND JUNK MAIL DEALERS, TO NAME BUT A FEW.  THE TRUTH

  IS THAT IN THIS SUBSIDY AREA SOCIETY HAS SIMPLY ADOPTED A DOUBLE

  STANDARD, ONE FOR AID TO BUSINESS AND THE FARMER AND A DIFFERENT

  ONE FOR WELFARE."  PROVERTY, MINORITIES, AND RESPECT FOR LAW,

 1970 DUKE L.J. 425, 437-438. 

IF THE WELFARE RECIPIENT WAS NOT BARBARA JAMES BUT A PROMINENT,
AFFLUENT COTTON OR WHEAT FARMER RECEIVING BENEFIT PAYMENTS FOR NOT
GROWING CROPS, WOULD NOT THE APPROACH BE DIFFERENT?  WELFARE IN AID OF
DEPENDENT CHILDREN, LIKE SOCIAL SECURITY AND UNEMPLOYMENT BENEFITS, HAS
AN AURA OF SUSPICION.  /9/  THERE DOUBTLESS ARE FRAUDS IN EVERY SECTOR
OF PUBLIC WELFARE WHETHER THE RECIPIENT BE A BARBARA JAMES OR SOMEONE
WHO IS PROMINENT OR INFLUENTIAL.  BUT CONSTITUTIONAL RIGHTS-- HERE THE
PRIVACY OF THE HOME-- ARE OBVIOUSLY NOT DEPENDENT ON THE POVERTY OR ON
THE AFFLUENCE OF THE BENEFICIARY.  IT IS THE PRECINCTS OF THE HOME THAT
THE FOURTH AMENDMENT PROTECTS; AND THEIR PRIVACY IS AS IMPORTANT TO THE
LOWLY AS TO THE MIGHTY.  /10/ 

"(STUDIES TELL US THAT THE TYPICAL MIDDLE INCOME AMERICAN REACHES
RETIREMENT AGE WITH A WHOLE BUNDLE OF INTERESTS AND EXPECTATIONS: AS
HOMEOWNER, AS SMALL INVESTOR, AND AS SOCIAL SECURITY 'BENEFICIARY.'  OF
THESE, HIS SOCIAL SECURITY RETIREMENT BENEFITS ARE PROBABLY HIS MOST
IMPORTANT RESOURCE.  SHOULD THIS, THE MOST SIGNIFICANT OF HIS RIGHTS,
BE ENTITLED TO A QUALITY OF PROTECTION INFERIOR TO THAT AFFORDED HIS
OTHER INTERESTS?  IT BECOMES THE TASK OF THE RULE OF LAW TO SURROUND
THIS NEW 'RIGHT' TO RETIREMENT BENEFITS WITH PROTECTIONS AGAINST
ARBITRARY GOVERNMENT ACTION, WITH SUBSTANTIVE AND PROCEDURAL SAFEGUARDS
THAT ARE AS EFFECTIVE IN CONTEXT AS THE SAFEGUARDS ENJOYED BY
TRADITIONAL RIGHTS OF PROPERTY IN THE BEST TRADITION OF THE OLDER
LAW."  /11/     IT MAY BE THAT IN SOME TENEMENTS ONE BABY WILL DO
SERVICE TO SEVERAL WOMEN AND CALL EACH ONE "MOM."  IT MAY BE THAT OTHER
FRAUDS, LESS OBVIOUS, WILL BE PERPETRATED.  BUT IF INSPECTORS WANT TO
ENTER THE PRECINCTS OF THE HOME AGAINST THE WISHES OF THE LADY OF THE
HOUSE, THEY MUST GET A WARRANT.  THE NEED FOR EXIGENT ACTION AS IN
CASES OF "HOT PURSUIT" IS NOT PRESENT, FOR THE LADY WILL NOT DISAPPEAR;
NOR WILL THE BABY.     I WOULD PLACE THE SAME RESTRICTIONS ON
INSPECTORS ENTERING THE HOMES OF WELFARE BENEFICIARIES AS ARE ON
INSPECTORS ENTERING THE HOMES OF THOSE ON THE PAYROLL OF GOVERNMENT, OR
THE HOMES OF THOSE WHO CONTRACT WITH THE GOVERNMENT, OR THE HOMES OF
THOSE WHO WORK FOR THOSE HAVING GOVERNMENT CONTRACTS; THE VALUES OF THE
HOME PROTECTED BY THE FOURTH AMENDMENT ARE NOT PECULIAR TO CAPITALISM
AS WE HAVE KNOWN IT; THEY ARE EQUALLY RELEVANT TO THE NEW FORM OF
SOCIALISM WHICH WE ARE ENTERING.  MOREOVER, AS THE NUMBERS OF
FUNCTIONARIES AND INSPECTORS MULTIPLY, THE NEED FOR PROTECTION OF THE
INDIVIDUAL BECOMES INDEED MORE ESSENTIAL IF THE VALUES OF A FREE
SOCIETY ARE TO REMAIN. 

WHAT LORD ACTION WROTE BISHOP CREIGHTON /12/  ABOUT THE CORRUPTION
OF POWER IS INCREASINGLY PERTINENT TODAY: 

"I CANNOT ACCEPT YOUR CANON THAT WE ARE TO JUDGE POPE AND KING
UNLIKE OTHER MEN, WITH A FAVOURABLE PRESUMPTION THAT THEY DID NO
WRONG.  IF THERE IS ANY PRESUMPTION IT IS THE OTHER WAY AGAINST HOLDERS
OF POWER, INCREASING AS THE POWER INCREASES.  HISTORIC RESPONSIBILITY
HAS TO MAKE UP FOR THE WANT OF LEGAL RESPONSIBILITY.  POWER TENDS TO
CORRUPT AND ABSOLUTE POWER CORRUPTS ABSOLUTELY.  GREAT MEN ARE ALMOST
ALWAYS BAD MEN, EVEN WHEN THEY EXERCISE INFLUENCE AND NOT AUTHORITY:
STILL MORE WHEN YOU SUPERADD THE TENDENCY OR THE CERTAINTY OF
CORRUPTION BY AUTHORITY." 

THE BUREAUCRACY OF MODERN GOVERNMENT IS NOT ONLY SLOW, LUMBERING,
AND OPPRESSIVE; IT IS OMNIPRESENT.  IT TOUCHES EVERYONE'S LIFE AT
NUMEROUS POINTS.  IT PRIES MORE AND MORE INTO PRIVATE AFFAIRS, BREAKING
DOWN THE BARRIERS THAT INDIVIDUALS ERECT TO GIVE THEM SOME INSULATION
FROM THE INTRIGUES AND HARASSMENTS OF MODERN LIFE.  /13/  ISOLATION IS
NOT A CONSTITUTIONAL GUARANTEE; BUT THE SANCTITY OF THE SANCTUARY OF
THE HOME IS SUCH-- AS MARKED AND DEFINED BY THE FOURTH AMENDMENT,
MCDONALD V. UNITED STATES, 335 U.S. 451, 453.  WHAT WE DO TODAY IS TO
DEPRECIATE IT. 

I WOULD SUSTAIN THE JUDGMENT OF THE THREE-JUDGE COURT IN THE PRESENT
CASE. 

/1/  SEE REICH, THE NEW PROPERTY, 73 YALE L.J. 733, 737-739. 

/2/  SEE GINZBURG, WHAT SCIENCE POLICY?, COLUMBIA FORUM, FALL 1970,
P. 12. 

/3/  SEE APPENDIX I TO THIS OPINION. 

/4/  SEE APPENDIX II TO THIS OPINION. 

/5/  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

/6/  SEE NOTE, UNCONSTITUTIONAL CONDITIONS, 73 HARV.L.REV.  1595,
1599. 

/7/  AND SEE HALE, UNCONSTITUTIONAL CONDITIONS AND CONSTITUTIONAL
RIGHTS, 35 COL.L.REV.  321 (1935); FROST & FROST CO. V. RAILROAD
COMM'N, 271 U.S. 583, 594. 

/8/  FLEMMING V. NESTOR, 363 U.S. 603, IS NOT IN ACCORD WITH THAT
TRADITION.  THERE WE UPHELD THE RIGHT OF CONGRESS TO STRIP AWAY ACCRUED
SOCIAL SECURITY BENEFITS.  NESTOR, AN ALIEN, CAME TO THIS COUNTRY IN
1913.  FROM THE ENACTMENT OF THE SOCIAL SECURITY ACT UNTIL 1955 NESTOR
AND HIS EMPLOYERS CONTRIBUTED PAYMENTS TO THE FUND.  IN 1955 NESTOR
BECAME ELIGIBLE FOR OLD-AGE BENEFITS.  ONE YEAR LATER HE WAS DEPORTED
FOR HAVING BEEN A MEMBER OF THE COMMUNIST PARTY BETWEEN 1933 AND 1939--
A TIME WHEN IT WAS PERFECTLY LEGAL TO BE A MEMBER.  IN 1954 CONGRESS
PASSED A LAW WHICH PROVIDED FOR THE LOSS OF SOCIAL SECURITY BENEFITS
FOR ANYONE DEPORTED FOR HAVING BEEN A MEMBER OF THE COMMUNIST PARTY. 
LIKE THE LAW PROVIDING FOR DEPORTATION FOR MEMBERSHIP THIS LAW, TOO,
WAS FULLY RETROACTIVE.  THUS NESTOR WAS DEPORTED AFTER HE HAD RETIRED
BASED ON A LAW CONDEMNING MEMBERSHIP IN THE COMMUNIST PARTY AT THE TIME
WHEN IT WAS LEGAL TO BE A MEMBER, AND STRIPPED OF HIS RETIREMENT INCOME
BASED ON A LAW MHICH WAS TRIGGERED BY THAT DEPORTATION.  WE UPHELD THE
CONSTITUTIONALITY OF THE 1954 LAW BY A 5-4 MAJORITY. 

THE MAJORITY STATED NESTOR'S PROPERTY HAD NOT BEEN TAKEN WITHOUT DUE
PROCESS BECAUSE NESTOR HAD NO PROPERTY RIGHTS; HIS INTEREST WAS
"NONCONTRACTUAL" AND COULD "NOT BE SOUNDLY ANALOGIZED TO THAT OF THE
HOLDER OF AN ANNUITY."  363 U.S.,AT 610.  THE MAJORITY THEN WENT ON TO
HOLD SOCIAL SECURITY BENEFITS ERE ONLY PROTECTED FROM CONGRESSIONAL
ACTION WHICH IS "UTTERLY LACKING IN RATIONAL JUSTIFICATION."  ID., AT
611. 

IF IT WAS UNCONSTITUTIONAL IN SPEISER TO CONDITION A TAX EXEMPTION
ON A LIMITATION ON FREEDOM OF SPEECH, IT WAS EQUALLY UNCONSTITUTIONAL
TO WITHHOLD A SOCIAL SECURITY BENEFIT CONDITIONED ON A LIMITATION OF
FREEDOM OF ASSOCIATION.  A RIGHT-PRIVILEGE DISTINCTION WAS IMPLICITLY
REJECTED IN SPEISER AND EXPLICITLY REJECTED IN SHERBERT.  TODAY'S
DECISION WHEN DEALING WITH A STATE STATUTE JOINS FLEMMING AS AN ANOMALY
IN THE CASES DEALING WITH UNCONSTITUTIONAL CONDITIONS. 

/9/  JUVENAL WROTE: 

"POVERTY'S GREATEST CURSE, MUCH WORSE THAN THE FACT OF IT, IS THAT
IT MAKES MEN OBJECTS OF MIRTH, RIDICULED, HUMBLED, EMBARRASSED." 
SATIRES 39 (INDIANA UNIV.  PRESS 1958). 

IN THE 1837 TERM THE COURT HELD IN CITY OF NEW YORK V. MILN, 11 PET.
102, THAT NEW YORK COULD REQUIRE SHIPS COMING IN FROM ABROAD TO REPORT
THE NAMES, AGES, ETC., OF EVERY PERSON BROUGHT TO THESE SHORES.  THE
COURT SAID:  "WE THINK IT AS COMPETENT AND AS NECESSARY FOR A STATE TO
PROVIDE PRECAUTIONARY MEASURES AGAINST THE MORAL PESTILENCE OF PAUPERS,
VAGABONDS, AND POSSIBLY CONVICTS; AS IT IS TO GUARD AGAINST THE
PHYSICAL PESTILENCE, WHICH MAY ARISE FROM UNSOUND AND INFECTIOUS
ARTICLES IMPORTED, OR FROM A SHIP, THE CREW OF WHICH MAY BE LABOURING
UNDER AN INFECTIOUS DISEASE."  ID., AT 142. 

I REGRETFULLY CONCLUDE THAT TODAY'S DECISION IS IDEOLOGICALLY OF THE
SAME VINTAGE. 

/10/  AN INDIVIDUAL WHO REFUSES TO ALLOW THE HOME VISIT COULD EITHER
BE A WELFARE RECIPIENT AT THE TIME OR AN APPLICANT FOR ASSISTANCE.  IN
NEITHER CASE WOULD THE OUTCOME OF THE REFUSAL BE DIFFERENT. 

IF THE MOTHER IS ALREADY A RECIPIENT, SOCIAL SERVICES REGULATIONS
351.21, 18 NYCRR 351.21, REQUIRES CONTINUING CONTACTS AT HOME BETWEEN
THE RECIPIENT AND THE SOCIAL WORKER.  SHOULD A RECIPIENT REFUSE A VISIT
THEN SEC. 175 OF THE POLICIES GOVERNING THE ADMINISTRATION OF PUBLIC
ASSISTANCE ("MANDATORY VISITS MUST BE MADE IN ACCORDANCE WITH LAW THAT
REQUIRES THAT PERSONS BE VISITED . . . .") WOULD REQUIRE TERMINATION. 
WHEN THE DECISION TO "DISCONTINUE, SUSPEND OR REDUCE" BENEFITS IS MADE,
THE RECIPIENT WOULD RECEIVE A HEARING UNDER SEC. 351.26 AT WHICH THE
RECIPIENT COULD PRESENT "WRITTEN AND ORAL RELEVANT EVIDENCE AND
ARGUMENT TO DEMONSTRATE WHY HIS GRANT SHOULD NOT BE DISCONTINUED,
SUSPENDED OR REDUCED."  SINCE SEC. 134 OF THE SOCIAL SERVICES LAW
REQUIRES VISITS, THE REFUSAL TO ALLOW THE VISIT WOULD APPARENTLY BE
DISPOSITIVE OF THE MATTER. 

THAT SEEMS TO BE CONCEDED HERE BY THE COMMISSIONER.  IN LIGHT OF
THAT FACT, THE FAILURE OF APPELLEE, WHO WENT TO A HEARING AND WAS
DENIED RELIEF, TO PURSUE ANY FURTHER STATE REMEDY SEEMS IRRELEVANT AS
THE ONLY QUESTION POSED WAS THE CONSTITUTIONALITY UNDER THE FOURTH
AMENDMENT OF THE TERMINATION OF ASSISTANCE FOR FAILURE TO AGREE TO THE
WARRANTLESS ENTRY INTO HER HOME. 

EXCEPT IN VERY LIMITED CIRCUMSTANCES (SOCIAL SERVICES REGULATIONS
SECS. 351.10 AND 372 (EMERGENCY ASSISTANCE)) AN INITIAL HOME VISIT AND
INVESTIGATION IS NECESSARY BEFORE RECEIVING BENEFITS.  SHOULD A
POTENTIAL RECIPIENT REFUSE THE INITIAL VISIT, HE WOULD BE NOTIFIED
UNDER SEC. 351.14(B) OF THE REASON FOR THE DENIAL.  THEN HE COULD
REQUEST A "FAIR HEARING" UNDER BOARD RULE 85 AND SOCIAL SERVICES
REGULATIONS 358.  AGAIN IT APPEARS THAT REFUSING THE VISIT WOULD BE
DISPOSITIVE OF THE CLAIM. 

THE EXTENT TO WHICH A PERSON COULD RECEIVE EMERGENCY ASSISTANCE
AFTER REFUSAL OF A VISIT IS UNCLEAR.  SOCIAL SERVICES REGULATIONS 372.3
RECOGNIZES THAT EMERGENCY ASSISTANCE COULD BE AVAILABLE TO A PERSON
WHILE THE "FAIR HEARING" IS PENDING.  IT WOULD SEEM, HOWEVER, THAT
IMPLICIT IN SEC. 372.3 IS THE NOTION THAT, IF THE CLAIM IS DISPOSED OF,
THEN THE EMERGENCY ASSISTANCE WOULD TERMINATE.  ALSO EMERGENCY
ASSISTANCE IS LIMITED TO PERIODS NOT IN EXCESS OF 30 CONSECUTIVE DAYS
IN ANY 12-MONTH PERIOD.  SOCIAL SERVICES REGULATIONS 372.1. 

/11/  JONES, THE RULE OF LAW AND THE WELFARE STATE, 58 COL.L.REV. 
143, 154-155 (1958). 

/12/  J. ACTON, ESSAYS ON FREEDOM AND POWER 364 (H. FINER ED.
1948). 

/13/  MASS RAIDS UPON THE HOMES OF WELFARE RECIPIENTS ARE MATTERS OF
RECORD.  SEE PARRISH V. CIVIL SERVICE COMM'N, 66 CAL.2D 260, 425 P.2D
223, WHERE AN INSPECTOR WAS DISCHARGED BECAUSE HE REFUSED TO ENGAGE IN
SUCH "ILLEGAL ACTIVITY" AND WAS GRANTED RELIEF BY WAY OF BACK PAY. 

        APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING (TABLE
OMITTED)

        APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING (TABLE
OMITTED) 

MR. JUSTICE MARSHALL, WHOM MR. JUSTICE BRENNAN JOINS, DISSENTING. 

ALTHOUGH I SUBSTANTIALLY AGREE WITH ITS INITIAL STATEMENT OF THE
ISSUE IN THIS CASE, THE COURT'S OPINION GOES ON TO IMPLY THAT THE
APPELLEE HAS REFUSED TO PROVIDE INFORMATION GERMANE TO A DETERMINATION
OF HER ELIGIBILITY FOR AFDC BENEFITS.  THE RECORD PLAINLY SHOWS,
HOWEVER, THAT MRS. JAMES OFFERED TO FURNISH ANY INFORMATION THAT THE
APPELLANTS DESIRED AND TO BE INTERVIEWED AT ANY PLACE OTHER THAN HER
HOME.  APPELLANTS REJECTED HER OFFERS AND TERMINATED HER BENEFITS
SOLELY ON THE GROUND THAT SHE REFUSED TO PERMIT A HOME VISIT.  IN
ADDITION, APPELLANTS MAKE NO CONTENTION THAT ANY SORT OF PROBABLE CAUSE
EXISTS TO SUSPECT APPELLEE OF WELFARE FRAUD OR CHILD ABUSE. 

SIMPLY STATED, THE ISSUE IN THIS CASE IS WHETHER A STATE WELFARE
AGENCY CAN REQUIRE ALL RECIPIENTS OF AFDC BENEFITS TO SUBMIT TO
WARRANTLESS "VISITATIONS" OF THEIR HOMES.  IN ANSWERING THAT QUESTION,
THE MAJORITY DODGES BETWEEN CONSTITUTIONAL ISSUES TO REACH A RESULT
CLEARLY INCONSISTENT WITH THE DECISIONS OF THIS COURT.  WE ARE TOLD
THAT THERE IS NO SEARCH INVOLVED IN THIS CASE; THAT EVEN IF THERE WERE
A SEARCH, IT WOULD NOT BE UNREASONABLE; AND THAT EVEN IF THIS WERE AN
UNREASONABLE SEARCH, A WELFARE RECIPIENT WAIVES HER RIGHT TO OBJECT BY
ACCEPTING BENEFITS.  I EMPHATICALLY DISAGREE WITH ALL THREE
CONCLUSIONS.  FURTHERMORE, I BELIEVE THAT BINDING REGULATIONS OF THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE PROHIBIT APPELLANTS FROM
REQUIRING THE HOME VISIT. 

        I 

THE COURT'S ASSERTION THAT THIS CASE CONCERNS NO SEARCH "IN THE
FOURTH AMENDMENT MEANING OF THAT TERM" IS NEITHER "OBVIOUS" NOR
"SIMPLE".  I SHOULD HAVE THOUGHT THAT THE FOURTH AMENDMENT GOVERNS ALL
INTRUSIONS BY AGENTS OF THE PUBLIC UPON PERSONAL SECURITY, TERRY V.
OHIO, 392 U.S. 1, 18 N. 15 (1968).  AS MR. JUSTICE HARLAN HAS SAID: 

"(THE CONSTITUTION PROTECTS THE PRIVACY OF THE HOME AGAINST ALL
UNREASONABLE INTRUSTION OF WHATEVER CHARACTER.  . . . '(IT APPLIES) TO
ALL INVASIONS ON THE PART OF THE GOVERNMENT AND ITS EMPLOYES OF THE
SANCTITY OF A MAN'S HOME,'" POE V. ULLMAN, 367 U.S. 497, 550-551 (1961)
(DISSENTING OPINION).  THIS COURT HAS REJECTED AS "ANOMALOUS" THE
CONTENTION THAT ONLY SUSPECTED CRIMINALS ARE PROTECTED BY THE FOURTH
AMENDMENT, CAMARA V. MUNICIPAL COURT, 387 U.S. 523, 530 (1967).  IN AN
ERA OF RAPIDLY BURGEONING GOVERNMENTAL ACTIVITIES AND THEIR CONCOMITANT
INSPECTORS, CASEWORKERS, AND RESEARCHERS, A RESTRICTION OF THE FOURTH
AMENDMENT TO "THE TRADITIONAL CRIMINAL LAW CONTEXT" TRAMPLES THE
ANCIENT CONCEPT THAT A MAN'S HOME IS HIS CASTLE.  ONLY LAST TERM, WE
REAFFIRMED THAT THIS CONCEPT HAS LOST NONE OF ITS VITALITY, ROWAN V.
UNITED STATES POST OFFICE, 397 U.S. 728, 738 (1970). 

EVEN IF THE FOURTH AMENDMENT DOES NOT APPLY TO EACH AND EVERY
GOVERNMENTAL ENTRY INTO THE HOME, THE WELFARE VISIT IS NOT SOME SORT OF
PURELY BENEVOLENT INSPECTION.  NO ONE QUESTIONS THE MOTIVES OF THE
DEDICATED WELFARE CASEWORKER.  OF COURSE, CASEWORKERS SEEK TO BE
FRIENDS, BUT THE POINT IS THAT THEY ARE ALSO REQUIRED TO BE SLEUTHS. 
THE MAJORITY CONCEDES THAT THE "VISITATION" IS PARTIALLY INVESTIGATIVE,
BUT CLAIMS THAT THIS INVESTIGATIVE ASPECT HAS BEEN GIVEN TOO MUCH
EMPHASIS.  EMPHASIS HAS INDEED BEEN GIVEN.  TIME AND AGAIN, IN BRIEFS
AND AT ORAL ARGUMENT, APPELLANTS EMPHASIZED THE NEED TO ENTER AFDC
HOMES TO GUARD AGAINST WELFARE FRAUD AND CHILD ABUSE, BOTH OF WHICH ARE
FELONIES.  /1/  THE NEW YORK STATUTES PROVIDE EMPHASIS BY REQUIRING ALL
CASEWORKERS TO REPORT ANY EVIDENCE OF FRAUD THAT A HOME VISIT UNCOVERS,
N.Y. SOCIAL SERVICES LAW 145.  AND APPELLANTS HAVE STRENUOUSLY
EMPHASIZED THE IMPORTANCE OF THE VISIT TO PROVIDE EVIDENCE LEADING TO
CIVIL FORFEITURES INCLUDING ELIMINATION OF BENEFITS AND LOSS OF CHILD
CUSTODY. 

ACTUALLY, THE HOME VISIT IS PRECISELY THE TYPE OF INSPECTION
PROSCRIBED BY CAMARA AND ITS COMPANION CASE, SEE V. CITY OF SEATTLE,
387 U.S. 541 (1967), EXCEPT THAT THE WELFARE VISIT IS A MORE SEVERE
INTRUSION UPON PRIVACY AND FAMILY DIGNITY.  BOTH THE HOME VISIT AND THE
SEARCHES IN THOSE CASES ANY CONVEY BENEFITS TO THE HOUSEHOLDER.  FIRE
INSPECTORS GIVE FREQUENT ADVICE CONCERNING FIRE PREVENTION, WIRING
CAPACITY, AND OTHER MATTERS, AND OBVIOUS SELF-INTEREST CAUSES MANY TO
WELCOME THE FIRE OR SAFETY INSPECTION.  SIMILARLY, THE WELFARE
CASEWORKER MAY PROVIDE WELCOME ADVICE ON HOME MANAGEMENT AND CHILD
CARE.  NONETHELESS, BOTH SEARCHES MAY RESULT IN THE IMPOSITION OF CIVIL
PENALTIES-- LOSS OR REDUCTION OF WELFARE BENEFITS OR AN ORDER TO
UPGRADE A HOUSING DEFECT.  THE FACT THAT ONE PURPOSE OF THE VISIT IS TO
PROVIDE EVIDENCE THAT MAY LEAD TO AN ELIMINATION OF BENEFITS IS
SUFFICIENT TO GRANT APPELLEE PROTECTION SINCE CAMARA STATED THAT THE
FOURTH AMENDMENT APPLIES TO INSPECTIONS WHICH CAN RESULT IN ONLY CIVIL
VIOLATIONS, 387 U.S.,AT 531.  BUT HERE THE CASE IS STRONGER SINCE THE
HOME VISIT, LIKE MANY HOUSING INSPECTIONS, MAY LEAD TO CRIMINAL
CONVICTIONS.     THE COURT ATTEMPTS TO DISTINGUISH SEE AND CAMARA BY
TELLING US THAT THOSE CASES INVOLVED "TRUE" AND "GENUINE" SEARCHES. 
THE ONLY CONCRETE DISTINCTION OFFERED IS THAT SEE AND CAMARA CONCERNED
CRIMINAL PROSECUTIONS FOR REFUSAL TO PERMIT THE SEARCH.  THE CAMARA
OPINION DID OBSERVE THAT ONE COULD BE PROSECUTED FOR A REFUSAL TO ALLOW
THAT SEARCH; BUT, APART FROM THE ISSUE OF CONSENT, THERE IS NEITHER
LOGIC IN, NOR PRECEDENT FOR, THE VIEW THAT THE AMBIT OF THE FOURTH
AMENDMENT DEPENDS NOT ON THE CHARACTER OF THE GOVERNMENTAL INTRUSION
BUT ON THE SIZE OF THE CLUB THAT THE STATE WIELDS AGAINST A RESISTING
CITIZEN.  EVEN IF THE MAGNITUDE OF THE PENALTY WERE RELEVANT, WHICH
SANCTION FOR RESISTING THE SEARCH IS MORE SEVERE?  FOR PROTECTING THE
PRIVACY OF HER HOME, MRS. JAMES LOST THE SOLE MEANS OF SUPPORT FOR
HERSELF AND HER INFANT SON.  FOR PROTECTING THE PRIVACY OF HIS
COMMERCIAL WAREHOUSE, MR. SEE RECEIVED A $100 SUSPENDED FINE. 

CONCEDING FOR THE SAKE OF ARGUMENT THAT SOMEONE MIGHT VIEW THE
"VISITATION" AS A SEARCH, THE MAJORITY NONETHELESS CONCLUDES THAT SUCH
A SEARCH IS NOT UNREASONABLE.  HOWEVER, ITS MODE OF REACHING THAT
CONCLUSION DEPARTS FROM THE ENTIRE HISTORY OF FOURTH AMENDMENT CASE
LAW.  OF COURSE, THE FOURTH AMENDMENT TEST IS REASONABLENESS, BUT IN
DETERMINING WHETHER A SEARCH IS REASONABLE, THIS COURT IS NOT FREE
MERELY TO BALANCE, IN A TOTALLY AD HOC FASHION, ANY NUMBER OF
SUBJECTIVE FACTORS.  AN UNBROKEN LINE OF CASES HOLDS THAT, SUBJECT TO A
FEW NARROWLY DRAWN EXCEPTIONS, ANY SEARCH WITHOUT A WARRANT IS
CONSTITUTIONALLY UNREASONABLE, SEE, E.G., AGNELLO V. UNITED STATES, 269
U.S. 20, 32 (1925); JOHNSON V. UNITED STATES, 333 U.S. 10, 13-14
(1948); CHAPMAN V. UNITED STATES, 365 U.S. 610, 613-615 (1961); CAMARA
V. MUNICIPAL COURT, 387 U.S. 523, 528-529 (1967); CHIMEL V. CALIFORNIA,
395 U.S. 752, 762 (1969); VALE V. LOUISIANA, 399 U.S. 30, 34-35
(1970).  IN THIS CASE, NO SUGGESTION THAT EVIDENCE WILL DISAPPEAR, THAT
A CRIMINAL WILL ESCAPE, OR THAT AN OFFICER WILL BE INJURED, JUSTIFIES
THE FAILURE TO OBTAIN A WARRANT.  INSTEAD, THE MAJORITY ASSERTS WHAT
AMOUNTS TO THREE STATE INTERESTS THAT ALLEGEDLY RENDER THIS SEARCH
REASONABLE.  NONE OF THESE INTERESTS IS SUFFICIENT TO CARVE OUT A NEW
EXCEPTION TO THE WARRANT REQUIREMENT. 

FIRST, IT IS ARGUED THAT THE HOME VISIT IS JUSTIFIED TO PROTECT
DEPENDENT CHILDREN FROM "ABUSE" AND "EXPLOITATION."  THESE ARE HEINOUS
CRIMES, BUT THEY ARE NOT CONFINED TO INDIGENT HOUSEHOLDS.  WOULD THE
MAJORITY SANCTION, IN THE ABSENCE OF PROBABLE CAUSE, COMPULSORY VISITS
TO ALL AMERICAN HOMES FOR THE PURPOSE OF DISCOVERING CHILD ABUSE?  OR
IS THIS COURT PREPARED TO HOLD AS A MATTER OF CONSTITUTIONAL LAW THAT A
MOTHER, MERELY BECAUSE SHE IS POOR, IS SUBSTANTIALLY MORE LIKELY TO
INJURE OR EXPLOIT HER CHILDREN?  SUCH A CATEGORICAL APPROACH TO AN
ENTIRE CLASS OF CITIZENS WOULD BE DANGEROUSLY AT ODDS WITH THE TENETS
OF OUR DEMOCRACY. 

SECOND, THE COURT CONTENDS THAT CASEWORKERS MUST ENTER THE HOMES OF
AFDC BENEFICIARIES TO DETERMINE ELIGIBILITY.  INTERESTINGLY, FEDERAL
REGULATIONS DO NOT REQUIRE THE HOME VISIT.  IN FACT, THE REGULATIONS
SPECIFY THE RECIPIENT HIMSELF AS THE PRIMARY SOURCE OF ELIGIBILITY
INFORMATION THEREBY RENDERING AN INSPECTION OF THE HOME ONLY ONE OF
SEVERAL ALTERNATIVE SECONDARY SOURCES.  /2/  THE MAJORITY'S IMPLICATION
THAT A BIANNUAL HOME VISIT SOMEHOW ASSURES THE VERIFICATION OF ACTUAL
RESIDENCE OR ACTUAL PHYSICAL PRESENCE IN THE HOME STRAINS CREDULITY IN
THE CONTEXT OF URBAN POVERTY.  DESPITE THE CASEWORKER'S RESPONSIBILITY
FOR DEPENDENT CHILDREN, HE IS NOT EVEN REQUIRED TO SEE THE CHILDREN AS
A PART OF THE HOME VISIT.  /3/  APPELLANTS OFFER SCANT EXPLANATION FOR
THEIR REFUSAL EVEN TO ATTEMPT TO UTILIZE PUBLIC RECORDS, EXPENDITURE
RECEIPTS, DOCUMENTS SUCH AS LEASES, NON-HOME INTERVIEWS, PERSONAL
FINANCIAL RECORDS, SWORN DECLARATIONS, ETC.-- ALL SOURCES THAT
GOVERNMENTAL AGENCIES REGULARLY ACCEPT AS ADEQUATE TO ESTABLISH
ELIGIBILITY FOR OTHER PUBLIC BENEFITS.  IN THIS SETTING, IT ILL
BEHOOVES APPELLANTS TO REFUSE TO UTILIZE INFORMATIONAL SOURCES LESS
DRASTIC THAN AN INVASION OF THE PRIVACY OF THE HOME. 

WE ARE TOLD THAT THE PLIGHT OF MRS. JAMES IS NO DIFFERENT FROM THAT
OF A TAXPAYER WHO IS REQUIRED TO DOCUMENT HIS RIGHT TO A TAX DEDUCTION,
BUT THIS ANALOGY IS SERIOUSLY FLAWED.  THE RECORD SHOWS THAT MRS. JAMES
HAS OFFERED TO BE INTERVIEWED ANYWHERE OTHER THAN HER HOME, TO ANSWER
ANY QUESTIONS, AND TO PROVIDE ANY DOCUMENTATION THAT THE WELFARE AGENCY
DESIRES.  THE AGENCY CURTLY REFUSED ALL THESE OFFERS AND INSISTED ON
ITS "RIGHT" TO PRY INTO APPELLEE'S HOME.  TAX EXEMPTIONS ARE ALSO
GOVERNMENTAL "BOUNTY."  A TRUE ANALOGY WOULD BE AN INTERNAL REVENUE
SERVICE REQUIREMENT THAT IN ORDER TO CLAIM A DEPENDENCY EXEMPTION, A
TAXPAYER MUST ALLOW A SPECIALLY TRAINED IRS AGENT TO INVADE THE HOME
FOR THE PURPOSE OF QUESTIONING THE OCCUPANTS AND LOOKING FOR EVIDENCE
THAT THE EXEMPTION IS BEING PROPERLY UTILIZED FOR THE BENEFIT OF THE
DEPENDENT.  IF SUCH A SYSTEM WERE EVEN PROPOSED, THE CRIES OF
CONSTITUTIONAL OUTRAGE WOULD BE UNANIMOUS. 

APPELLANTS OFFER A THIRD STATE INTEREST THAT THE COURT SEEMS TO
ACCEPT AS PARTIAL JUSTIFICATION FOR THIS SEARCH.  WE ARE TOLD THAT THE
VISIT IS DESIGNED TO REHABILITATE, TO PROVIDE AID.  THIS IS STRANGE
DOCTRINE INDEED.  A PATERNALISTIC NATION THAT A COMPLAINING CITIZEN'S
CONSTITUTIONAL RIGHTS CAN BE VIOLATED SO LONG AS THE STATE IS SOMEHOW
HELPING HIM IS ALIEN TO OUR NATION'S PHILOSOPHY.  MORE THAN 40 YEARS
AGO, MR. JUSTICE BRANDEIS WARNED: 

"EXPERIENCE SHOULD TEACH US TO BE MOST ON OUR GUARD TO PROTECT
LIBERTY WHEN THE GOVERNMENT'S PURPOSES ARE BENEFICENT."  OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 479 (1928) (DISSENTING OPINION). 

THROUGHOUT ITS OPINION, THE MAJORITY ALTERNATES BETWEEN TWO VIEWS OF
THE STATE'S INTEREST IN REQUIRING THE HOME VISIT.  FIRST WE ARE TOLD
THAT THE STATE'S PURPOSE IS BENEVOLENT SO THAT NO SEARCH IS INVOLVED. 
NEXT WE ARE TOLD THAT THE STATE'S NEED TO PREVENT CHILD ABUSE AND TO
AVOID THE MISAPPROPRIATION OF WELFARE FUNDS JUSTIFIES DISPENSING WITH
THE WARRANT REQUIREMENT.  BUT WHEN ALL THE STATE'S PURPOSES ARE
CONSIDERED AT ONE TIME, I CAN ONLY CONCLUDE THAT THE HOME VISIT IS A
SEARCH AND THAT, ABSENT A WARRANT, THAT SEARCH IS UNREASONABLE.  /4/ 

ALTHOUGH THE COURT DOES NOT AGREE WITH MY CONCLUSION THAT THE HOME
VISIT IS AN UNREASONABLE SEARCH, ITS OPINION SUGGESTS THAT EVEN IF THE
VISIT WERE UNREASONABLE, APPELLEE HAS SOMEHOW WAIVED HER RIGHT TO
OBJECT.  SURELY THE MAJORITY CANNOT BELIEVE THAT VALID FOURTH AMENDMENT
CONSENT CAN BE GIVEN UNDER THE THREAT OF THE LOSS OF ONE'S SOLE MEANS
OF SUPPORT.  NOR HAS MRS. JAMES WAIVED HER RIGHTS.  HAD THE COURT
SQUARELY FACED THE QUESTION OF WHETHER THE STATE CAN CONDITION WELFARE
PAYMENTS ON THE WAIVER OF CLEAR CONSTITUTIONAL RIGHTS, THE ANSWER WOULD
BE PLAIN.  THE DECISIONS OF THIS COURT DO NOT SUPPORT THE NOTION THAT A
STATE CAN USE WELFARE BENEFITS AS A WEDGE TO COERCE "WAIVER" OF FOURTH
AMENDMENT RIGHTS, SEE REICH, MIDNIGHT WELFARE SEARCHES AND THE SOCIAL
SECURITY ACT, 72 YALE L.J. 1347, 1349-1350 (1963); NOTE,
REHABILITATION, INVESTIGATION AND THE WELFARE HOME VISIT, 79 YALE L.J.
746, 758 (1970).  IN SHERBERT V. VERNER, /5/  THIS COURT DID NOT SAY,
"AID MERELY CEASES.  THERE IS NO ABRIDGMENT OF RELIGIOUS FREEDOM."  NOR
DID THE COURT SAY IN SPEISER V. RANDALL, /6/  "THE TAX IS SIMPLY
INCREASED.  NO ONE IS COMPELLED TO RELINQUISH FIRST AMENDMENT RIGHTS." 
AS MY BROTHER DOUGLAS POINTS OUT, THE MAJORITY'S STATEMENT THAT MRS.
JAMES'  "CHOICE (TO BE SEARCHED OR TO LOSE HER BENEFITS) IS ENTIRELY
HERS, AND NOTHING OF CONSTITUTIONAL MAGNITUDE IS INVOLVED" MERELY
RESTATES THE ISSUE.  TO MR. JUSTICE DOUGLAS' ELOQUENT DISCUSSION OF THE
LAW OF UNCONSTITUTIONAL CONDITIONS, I WOULD ADD ONLY THAT THIS COURT
LAST TERM REAFFIRMED SHERBERT AND SPEISER AS APPLICABLE TO THE LAW OF
PUBLIC WELFARE: 

"RELEVANT CONSTITUTIONAL RESTRAINTS APPLY AS MUCH TO THE WITHDRAWAL
OF PUBLIC ASSISTANCE BENEFITS AS TO DISQUALIFICATION FOR UNEMPLOYMENT
COMPENSATION . . . DENIAL OF A TAX EXEMPTION . . . OR . . . DISCHARGE
FROM PUBLIC EMPLOYMENT."  GOLDBERG V. KELLY, 397 U.S. 254, 262 (1970). 

    II 

THE COURT'S EXAMINSTION OF THE CONSITUTIONAL ISSUES PRESENTED BY
THIS CASE HAS CONSTRAINED ME TO RESPOND.  IT WOULD NOT HAVE BEEN
NECESSARY TO REACH THESE QUESTIONS FOR I BELIEVE THAT HEW REGULATIONS,
BINDING ON THE STATES, PROHIBIT THE UNCONSENTED HOME VISIT.  /7/ 

THE FEDERAL HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION PROVIDES: 

"THE (STATE WELFARE) AGENCY ESPECIALLY GUARDS AGAINST VIOLATIONS OF
LEGAL RIGHTS AND COMMON DECENCIES IN SUCH AREAS AS ENTERING A HOME BY
FORCE, OR WITHOUT PERMISSION, OR UNDER FALSE PRETENSES; MAKING HOME
VISITS OUTSIDE OF WORKING HOURS, AND PARTICULARLY MAKING SUCH VISITS
DURING SLEEPING HOURS . . . ."  PART IV, SEC. 2300(A).  ALTHOUGH THE
TONE OF THIS LANGUAGE IS DESCRIPTIVE, HEW REQUIREMENTS ARE STATED IN
TERMS OF PRINCIPLES AND OBJECTIVES, HANDBOOK, PT. I, SEC. 4210(3); AND
APPELLANTS DO NOT CONTEND THAT THIS REGULATION IS MERELY ADVISORY. 
INSTEAD, APPELLANTS RESPOND WITH THE TIRED ASSERTION THAT CONSENT
OBTAINED BY THREATENING TERMINATION OF BENEFITS CONSTITUTES VALID
PERMISSION UNDER THIS REGULATION.  THERE IS NO REASON TO SUSPECT THAT
HEW SHARES THIS CRABBED VIEW OF CONSENT.  THE HANDBOOK, ITSELF, INSISTS
ON CAREFUL SCRUTINY OF PURPORTED CONSENT, PT. IV, SEC. 2400.  SECTION
2200(A) IS DESIGNED TO PROTECT THAT PRIVACY OF WELFARE RECIPIENTS, AND
IT WOULD BE SOMEWHAT IRONIC TO ADOPT A CONSTRUCTION OF THE REGULATION
THAT PROVIDED THAT ANY PERSON WHO INVOKES HIS PRIVACY RIGHTS CEASES TO
BE A RECIPIENT. 

APPELLANTS NEXT OBJECT THAT THE HOME VISIT HAS LONG BEEN A PART OF
WELFARE ADMINISTRATION AND HAS NEVER BEEN DISAPPROVED BY HEW.  THE
SHORT ANSWER TO THIS IS THAT WE DEAL WITH ONLY THE UNCONSENTED HOME
VISIT.  THE GENERAL UTILITY AND ACCEPTANCE OF THE HOME VISIT CASTS
LITTLE LIGHT ON WHETHER HEW MIGHT PREFER NOT TO IMPOSE THE VISIT ON
UNWILLING RECIPIENTS.  APPELLANTS ALSO REMIND US THAT THE FEDERAL
GOVERNMENT ITSELF REQUIRES A LIMITED NUMBER OF HOME VISITS FOR SAMPLING
PURPOSES.  HOWEVER, WHILE THERE MAY WELL BE A SPECIAL NEED TO EMPLOY
MANDATORY VISITS AS A PART OF QUALITY CONTROL SAMPLES, MRS. JAMES' HOME
WAS NOT A PART OF SUCH A SAMPLE.  FURTHERMORE APPELLANTS ADMIT THAT
SEC. 2200(A) GOVERNS THE QUALITY CONTROL PROGRAM; SO IT IS NOT CLEAR
THAT UNCONSENTED HOME VISITS ARE ALLOWED EVEN FOR SAMPLING PURPOSES. 
ALTHOUGH THERE APPEARS TO BE NO REGULATORY HISTORY, APPELLANTS TELL US
SEC. 2200(A) MERELY PERMITS A RECIPIENT TO REFUSE A PARTICULAR HOME
VISIT AND DOES NOT ALLOW HIM TO FORBID HOME VISITS ALTOGETHER.  I
SUPPOSE THAT ONE COULD READ SUCH A LIMITATION INTO THE SECTION, BUT
GIVEN THE REGULATION'S EXPLICIT LANGUAGE, GIVEN THAT HEW DOES NOT
REQUIRE HOME VISITS AND VIEWS THE VISITS AS ONLY ONE OF SEVERAL
ALTERNATIVE SOURCES OF ELIGIBILITY INFORMATION, GIVEN HEW'S CONCERN FOR
THE PRIVACY OF ITS CLIENTS, AND GIVEN THE DURABLE PRINCIPLE OF THIS
COURT THAT DOUBTFUL QUESTIONS OF INTERPRETATION SHOULD BE RESOLVED IN A
MANNER WHICH AVOIDS CONSTITUTIONAL QUESTIONS, UNITED STATES V. DELAWARE
& HUDSON CO., 213 U.S. 366, 407 (1909), I WOULD CONCLUDE THAT MRS.
JAMES IS PROTECTED BY SEC. 2200(A). 

        III 

IN DECIDING THAT THE HOMES OF AFDC RECIPIENTS ARE NOT ENTITLED TO
PROTECTION FROM WARRANTLESS SEARCHES BY WELFARE CASEWORKERS, THE COURT
DECLINES TO FOLLOW PRIOR CASE LAW AND EMPLOYS A RATIONALE THAT, IF
APPLIED TO THE CLAIMS OF ALL CITIZENS, WOULD THREATEN THE VITALITY OF
THE FOURTH AMENDMENT.  THIS COURT HAS OCCASIONALLY PUSHED BEYOND
ESTABLISHED CONSTITUTIONAL CONTOURS TO PROTECT THE VULNERABLE AND TO
FURTHER BASIC HUMAN VALUES.  I FIND NO LITTLE IRONY IN THE FACT THAT
THE BURDEN OF TODAY'S DEPARTURE FROM PRINCIPLED ADJUDICATION IS PLACED
UPON THE LOWLY POOR.  PERHAPS THE MAJORITY HAS EXPLAINED WHY A
COMMERCIAL WAREHOUSE DESERVES MORE PROTECTION THAN DOES THIS POOR
WOMAN'S HOME.  I AM NOT CONVINCED; AND, THEREFORE, I MUST RESPECTFULLY
DISSENT. 

/1/  FOR EXAMPLE, APPELLANTS' REPLY BRIEF OFFERS TWO SPECIFIC
ILLUSTRATIONS OF THE HOME VISIT'S EFFICACY.  IN THE FIRST, A MAN WAS
DISCOVERED IN THE HOME AND BENEFITS WERE TERMINATED.  IN THE SECOND,
CHILD ABUSE WAS DISCOVERED. 

/2/  HEW HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION, PT. IV, SEC.
2200(E)(1). 

/3/  APPELLANTS RESPOND BY ASSERTING THAT IF THE CASEWORKER BECOMES
SUSPICIOUS CONCERNING THE CHILD'S ABSENCE, FURTHER INVESTIGATION MAY
TAKE PLACE.  ONE CERTAINLY WOULD HOPE THAT THE CASEWORKER WOULD
CONTINUE HIS INVESTIGATION, BUT THE FACT REMAINS THAT THE FAILURE TO
REQUIRE THAT THE CHILD BE SEEN UNDERCUTS THE ARGUMENT THAT THE HOME
VISIT IS DESIGNED TO PROTECT THE CHILD'S WELFARE AND NECESSARY TO
VERIFY HIS PRESENCE IN THE HOME. 

/4/  SINCE THE MAJORITY REFUSES TO SANCTION THE WARRANT PROCEDURE IN
ANY FORM, I HAVE NOT DISCUSSED WHAT STANDARD SHOULD BE REQUIRED FOR A
WARRANT TO ISSUE.  CERTAINLY, IF ONE OF THE PURPOSES OF THE WELFARE
SEARCH IS TO OBTAIN EVIDENCE OF CRIMINAL CONDUCT, THAT IS NO REASON TO
PERMIT LESS THAN PROBABLE CAUSE.  AND BECAUSE THE HOME VISIT IS A MORE
SEVERE INTRUSION THAN IS THE HOUSING INSPECTION AND THERE ARE LESS
DRASTIC MEANS TO OBTAIN ELIGIBILITY INFORMATION, I WOULD APPLY THE
ANALYSIS OF CAMARA AND WOULD BE INCLINED TO UTILIZE A TRADITIONAL
PROBABLE CAUSE STANDARD.     /5/  374 U.S. 398 (1963). 

/6/  357 U.S. 513 (1958). 

/7/  IT IS A TIME-HONORED DOCTRINE THAT STATUTES AND REGULATIONS ARE
FIRST EXAMINED BY A REVIEWING COURT TO SEE IF CONSTITUTIONAL QUESTIONS
CAN BE AVOIDED, ASHWANDER V. TVA, 297 U.S. 288, 346-348 (1936)
(BRANDEIS, J., CONCURRING); SEE, E.G., DANDRIDGE V. WILLIAMS, 397 U.S.
471 (1970); KING V. SMITH, 392 U.S. 309 (1968).  THE COURT BELOW CHOSE
NOT TO INVOKE THIS DOCTRINE, AND LITIGATION IN THIS COURT HAS
EMPHASIZED THE CONSTITUTIONAL ISSUES.  HOWEVER, THE NONCONSTITUTIONAL
QUESTIONS WERE BRIEFED BY AN AMICUS CURIAE AND APPELLANTS RESPONDED
FULLY IN THEIR REPLY BRIEF.  THE PARTIES MAY PREFER A DECISION ON
CONSTITUTIONAL GROUNDS; BUT WE, OF COURSE, ARE NOT BOUND BY THEIR
LITIGATION STRATEGIES. 

BRENDA SOLOFF, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR APPELLANT WYMAN.  WITH HER ON THE BRIEF WERE LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, AND SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT
ATTORNEY GENERAL, FOR APPELLANT WYMAN, AND J. LEE RANKIN FOR APPELLANT
GOLDBERG, COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK. 

JONATHAN WEISS ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WAS DAVID GILMAN. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY STEPHEN F.
GORDON AND ERNEST FLEISCHMAN FOR THE SOCIAL SERVICE EMPLOYEES UNION
LOCAL 371, AFSCME, AFL-CIO, AND BY LOIS P. SHEINFELD FOR THE LEGAL AID
SOCIETY OF SAN MATEO COUNTY. 
..END :
























DECKER V. HARPER & ROW PUBLISHERS, 400 U.S. 348 


       DECKER, U.S. DISTRICT JUDGE, ET AL. V. HARPER & ROW

           PUBLISHERS, INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

        NO. 113.  ARGUED DECEMBER 16, 1970-- DECIDED JANUARY 12,

           1971 


423 F.2D 487, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

LEE A. FREEMAN, JR., ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WERE LEE A. FREEMAN, WILLIAM J. SCOTT, ATTORNEY GENERAL OF
ILLINOIS, AND JOHN P. MEYER, SPECIAL ASSISTANT ATTORNEY GENERAL,
CHAUNCEY H. BROWNING, JR., ATTORNEY GENERAL OF WEST VIRGINIA, AND GENE
HAL WILLIAMS, DEPUTY ATTORNEY GENERAL, THEODORE L. SENDAK, ATTORNEY
GENERAL OF INDIANA, AND WENDELL C. HAMACHER, ASSISTANT ATTORNEY
GENERAL, CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, AND WAYNE R.
RODGERS, ASSISTANT ATTORNEY GENERAL, PAUL W. BROWN, ATTORNEY GENERAL OF
OHIO, AND DONALD WECKSTEIN AND TED B. CLEVENGER, ASSISTANT ATTORNEYS
GENERAL, DOUGLAS M. HEAD, ATTORNEY GENERAL OF MINNESOTA, AND ERIC
MILLER, ASSISTANT ATTORNEY GENERAL, ROBERT W. WARREN, ATTORNEY GENERAL
OF WISCONSIN, AND GEORGE F. SIEKER AND THEODORE L. PRIEBE, ASSISTANT
ATTORNEYS GENERAL, KENT FRIZZEL, ATTORNEY GENERAL OF KANSAS, AND J.
EUGENE BALLOUN, SPECIAL ASSISTANT ATTORNEY GENERAL, RICHARD L. CURRY,
DAVID J. YOUNG, CHARLES E. GRIFFITH III, AND ROBERT E. KENDRICK. 

H. TEMPLETON BROWN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WERE ROBERT L. STERN, LEE N. ABRAMS, W. DONALD MCSWEENEY,
EARL E. POLLOCK, PETER GRUENBERGER, CONRAD W. OBERDORFER, EARL A.
JINKINSON, EDGAR E. BARTON, LEO ROSEN, ROGER HUNTING, AND SAMUEL
WEISBARD. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY DAVID T.
SEARLS, HARRY M. REASONER, RAY D. HENSON, AND JOHN C. BARTLETT FOR THE
AMERICAN BAR ASSOCIATION ET AL.; BY ANDREW P. MILLER, ATTORNEY GENERAL,
AND ANTHONY F. TROY AND T. J. MARKOW, ASSISTANT ATTORNEYS GENERAL, FOR
THE COMMONWEALTH OF VIRGINIA; AND BY SAMUEL W. MURPHY, JR., AND GEORGE
S. LEISURE, JR., FOR THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
ET AL. EDWARD S. IRONS AND MARY HELEN SEARS, PRO SESE, FILED A BRIEF AS
AMICI CURIAE. 
..END :



















BRUNO V. PENNSYLVANIA, 400 U.S. 350 


       BRUNO V. PENNSYLVANIA

        CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA

        NO. 205.  ARGUED DECEMBER 14, 1970-- DECIDED JANUARY 12,

           1971 


435 PA. 200, 255 A.2D 519 AND 257 A.2D 47, CERTIORARI DISMISSED AS
IMPROVIDENTLY GRANTED. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

DANIEL L. QUINLAN, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

MILTON O. MOSS ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :








OREGON V. MITCHELL, 400 U.S. 112 


       OREGON V. MITCHELL, ATTORNEY GENERAL

        ON BILL OF COMPLAINT

        NO. 43, ORIG.  ARGUED OCTOBER 19, 1970-- DECIDED DECEMBER

           21, 1970  /0/ 


THESE ORIGINAL ACTIONS INVOLVE THE CONSTITUTIONALITY OF THREE
PROVISIONS OF THE VOTING RIGHTS ACT AMENDMENTS OF 1970 WHICH (1) LOWER
THE MINIMUM AGE OF VOTERS IN BOTH STATE AND FEDERAL ELECTIONS FROM 21
TO 18, (2) BAR THE USE OF LITERACY TESTS (AND SIMILAR VOTING
ELIGIBILITY REQUIREMENTS) FOR A FIVE-YEAR PERIOD IN STATE AND FEDERAL
ELECTIONS IN ANY AREA WHERE SUCH TESTS ARE NOT ALREADY PROSCRIBED BY
THE VOTING RIGHTS ACT OF 1965, AND (3) FORBID STATES FROM DISQUALIFYING
VOTERS IN PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS FOR FAILURE TO
MEET STATE RESIDENCY REQUIREMENTS AND PROVIDE UNIFORM NATIONAL RULES
FOR ABSENTEE VOTING IN SUCH ELECTIONS.  HELD:  (1) THE 18-YEAR-OLD
MINIMUM-AGE REQUIREMENT OF THE VOTING RIGHTS ACT AMENDMENTS IS VALID
FOR NATIONAL ELECTIONS.  (2) THAT REQUIREMENT IS NOT VALID FOR STATE
AND LOCAL ELECTIONS.  (3) THE LITERACY TEST PROVISION IS VALID.  (4)
THE RESIDENCY AND ABSENTEE BALLOTING PROVISIONS ARE VALID.  PP. 117
296. 

RELIEF GRANTED IN PART AND DENIED IN PART. 

MR. JUSTICE BLACK CONCLUDED THAT: 

1.  CONGRESS HAS THE AUTHORITY TO PERMIT 18-YEAR-OLD CITIZENS TO
VOTE IN NATIONAL ELECTIONS, UNDER ART. I, SEC. 4, ART. II, SEC. 1, AND
THE NECESSARY AND PROPER CLAUSE, OF THE CONSTITUTION SINCE THOSE
PROVISIONS FULLY EMPOWER CONGRESS TO MAKE OR ALTER REGULATIONS IN
NATIONAL ELECTIONS, TO SUPERVISE SUCH ELECTIONS, AND TO SET THE
QUALIFICATIONS FOR VOTERS THEREIN.  PP. 117, 119-124. 

2.  BUT UNDER ART. I, SEC. 2, THE STATES HAVE THE POWER TO SET
QUALIFICATIONS TO VOTE IN STATE AND LOCAL ELECTIONS, AND THE WHOLE
CONSTITUTION RESERVES THAT POWER TO THE STATES EXCEPT AS IT HAS BEEN
CURTAILED BY SPECIFIC CONSTITUTIONAL AMENDMENTS.  NO AMENDMENT
(INCLUDING THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND
THE OTHER CIVIL WAR AMENDMENTS) AUTHORIZES CONGRESS' ATTEMPT TO LOWER
THE VOTING AGE IN STATE AND LOCAL ELECTIONS.  PP. 118, 124-131. 

3.  THE LITERACY TEST BAN IS CONSTITUTIONAL UNDER THE ENFORCEMENT
CLAUSES OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS, IN VIEW OF THE
EVIDENCE OF RACIAL DISCRIMINATION THAT CONGRESS FOUND IN VARIOUS PARTS
OF THE NATION:  RACIAL DISCRIMINATION RESULTING FROM LITERACY TESTS,
THE EDUCATIONAL INEQUALITY STEMMING FROM THE "SEPARATE BUT EQUAL" RULE,
AND OTHER RACIALLY DISCRIMINATORY PRACTICES.  PP. 118, 131-134. 

4.  THE PROVISIONS FORBIDDING STATES FROM DISQUALIFYING VOTERS IN
NATIONAL ELECTIONS FOR PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTORS
BECAUSE THEY HAVE NOT MET STATE RESIDENCY REQUIREMENTS AND ESTABLISHING
ABSENTEE BALLOTING RULES ARE VALID UNDER CONGRESS' BROAD POWERS TO
REGULATE FEDERAL ELECTIONS AND MAINTAIN A NATIONAL GOVERNMENT.  /1A/
PP. 118, 134. 

MR. JUSTICE DOUGLAS CONCLUDED THAT:  /1A/ 

1.  THE AUTHORITY OF CONGRESS TO FIX AT 18 THE MINIMUM AGE FOR THE
CIVIL RIGHT OF VOTING IN NATIONAL ELECTIONS DERIVES FROM THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND THE POWER TO
"ENFORCE" GRANTED BY SEC. 5 OF THAT AMENDMENT.  CONGRESS HAD AN
ADEQUATE BASIS FOR CONCLUDING THAT 18-YEAR-OLDS ARE MATURE ENOUGH TO
VOTE AND THAT TO DEPRIVE THEM OF THE FRANCHISE WOULD BE A DENIAL OF
EQUAL PROTECTION.  PP. 135-144. 

3.  THE BAR AGAINST A STATE'S DENYING THE RIGHT TO VOTE IN ANY
FEDERAL, STATE, OR LOCAL ELECTION BECAUSE OF A LITERACY TEST IS
SUSTAINABLE AS APPROPRIATE LEGISLATION TO ENFORCE THE EQUAL PROTECTION
CLAUSE, CONGRESS HAVING CONCLUDED THAT SUCH TESTS HAVE BEEN USED TO
DISCRIMINATE AGAINST THE VOTING RIGHTS OF MINORITY GROUPS AND THAT THE
TESTS ARE NOT NECESSARY TO ENSURE THAT VOTERS BE WELL INFORMED.  PP.
144-147. 

4.  THE RIGHT TO VOTE IN NATIONAL ELECTIONS IS A PRIVILEGE AND
IMMUNITY OF NATIONAL CITIZENSHIP AND THE CONGRESSIONAL JUDGMENT TO BAN
DURATIONAL RESIDENCY REQUIREMENTS IN PRESIDENTIAL AND VICE-PRESIDENTIAL
ELECTIONS IS A MANIFESTLY PERMISSIBLE MEANS OF ENFORCING THAT PRIVILEGE
AND IMMUNITY UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT.  PP. 147-150. 

MR. JUSTICE HARLAN CONCLUDED THAT:  /1A/ 

2.  THE FOURTEENTH AMENDMENT WAS NOT INTENDED TO RESTRICT THE
AUTHORITY OF THE STATES TO ALLOCATE THEIR POLITICAL POWER AS THEY SEE
FIT AND NEITHER THAT AMENDMENT NOR ANY OTHER PROVISION OF THE
CONSTITUTION AUTHORIZES CONGRESS TO SET VOTER QUALIFICATIONS IN STATE
OR LOCAL ELECTIONS.  PP. 154-213. 

3.  THE LITERACY REQUIREMENT CAN BE DEEMED AN APPROPRIATE MEANS OF
ENFORCING THE FIFTEENTH AMENDMENT SINCE CONGRESS COULD HAVE DETERMINED
THAT RACIAL PREJUDICE IS PREVALENT THROUGHOUT THE NATION AND THAT
LITERACY TESTS UNDULY LEND THEMSELVES TO DISCRIMINATORY APPLICATION. 
PP. 216-217. 

MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, AND MR. JUSTICE MARSHALL
CONCLUDED THAT:  /1B/ 

1.  CONGRESS HAS THE POWER TO FORBID THE DISENFRANCHISEMENT IN
NATIONAL ELECTIONS OF PERSONS OVER THE AGE OF 18 BECAUSE OF THEIR AGE,
IN ORDER TO ENFORCE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  THERE WAS AMPLE EVIDENCE TO SUPPORT CONGRESS' CONCLUSION
THAT THE EXCLUSION OF CITIZENS 18 TO 21 YEARS OF AGE FROM THE FRANCHISE
IS UNNECESSARY TO PROMOTE ANY LEGITIMATE INTEREST THE STATES MAY HAVE
IN ASSURING INTELLIGENT AND RESPONSIBLE VOTING.  PP. 239-281. 

3.  THE CONGRESSIONAL DETERMINATION THAT A NATIONWIDE BAN ON
LITERACY TESTS WAS NECESSARY TO PREVENT RACIAL DISCRIMINATION IN VOTING
IS AMPLY SUPPORTED BY THE LEGISLATIVE RECORD, AND THE PROSRIPTION OF
LITERACY TESTS IS WELL WITHIN THE POWER OF CONGRESS GRANTED BY SEC. 2
OF THE FIFTEENTH AMENDMENT.  PP. 231-236. 

4. THERE IS ADEQUATE CONSTITUTIONAL BASIS FOR THE RESIDENCY
PROVISIONS OF THE ACT IN SEC. 5 OF THE FOURTEENTH AMENDMENT, AS THERE
IS AMPLE JUSTIFICATION FOR THE CONGRESSIONAL FINDINGS THAT DURATIONAL
RESIDENCE REQUIREMENTS ABRIDGE THE RIGHT OF FREE INTERSTATE MIGRATION
AND THAT SUCH REQUIREMENTS ARE NOT REASONABLY RELATED TO ANY COMPELLING
STATE INTERESTS.  PP. 236-239. 

MR. JUSTICE STEWART, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN, CONCLUDED THAT:  /1B/ 

2.  CONGRESS HAS NO POWER TO CONFER THE RIGHT TO VOTE IN STATE OR
LOCAL ELECTIONS ON CITIZENS FROM THE AGES OF 18 TO 21 SINCE UNDER THE
CONSTITUTION ONLY THE STATES HAVE THE POWER TO SET VOTING
QUALIFICATIONS.  PP. 293-296. 

3.  THE LITERACY TEST BAN IS CONSTITUTIONAL UNDER THE ENFORCEMENT
CLAUSE OF THE FIFTEENTH AMENDMENT.  PP. 282-284. 

4.  THE RESIDENCY PROVISIONS OF THE ACT ARE CONSTITUTIONAL BECAUSE
CONGRESS, WHILE IT DOES NOT HAVE GENERAL AUTHORITY TO ESTABLISH
QUALIFICATIONS FOR VOTING IN CONGRESSIONAL OR PRESIDENTIAL ELECTIONS,
DOES HAVE THE POWER UNDER THE NECESSARY AND PROPER CLAUSE TO PROTECT
THE PRIVILEGES OF UNITED STATES CITIZENSHIP, INCLUDING THE FREEDOM TO
TRAVEL AND TO CHANGE ONE'S RESIDENCE.  PP. 285-292. 

BLACK, J., DELIVERED AN OPINION ANNOUNCING THE JUDGMENTS OF THE
COURT AND EXPRESSING HIS OWN VIEW OF THE CASES.  DOUGLAS, J., FILED A
SEPARATE OPINION, POST, P. 135.  HARLAN, J., FILED AN OPINION
CONCURRING IN PART, AND DISSENTING IN PART, POST, P. 152.  BRENNAN,
WHITE, AND MARSHALL, JJ., FILED AN OPINION DISSENTING FROM THE
JUDGMENTS IN PART AND CONCURRING IN THE JUDGMENTS IN PART, POST, P.
229.  STEWART, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING
IN PART, IN WHICH BURGER, C. J., AND BLACKMUN, J., JOINED, POST, P.
281. 

MR. JUSTICE BLACK, ANNOUNCING THE JUDGMENTS OF THE COURT IN AN
OPINION EXPRESSING HIS OWN VIEW OF THE CASES. 

IN THESE SUITS CERTAIN STATES RESIST COMPLIANCE WITH THE VOTING
RIGHTS ACT AMENDMENTS OF 1970, PUB. L. 91-285, 84 STAT. 314, BECAUSE
THEY BELIEVE THAT THE ACT TAKES AWAY FROM THEM POWERS RESERVED TO THE
STATES BY THE CONSTITUTION TO CONTROL THEIR OWN ELECTIONS.  /1/  BY ITS
TERMS THE ACT DOES THREE THINGS.  FIRST:  IT LOWERS THE MINIMUM AGE OF
VOTERS IN BOTH STATE AND FEDERAL ELECTIONS FROM 21 TO 18.  SECOND:
BASED UPON A FINDING BY CONGRESS THAT LITERACY TESTS HAVE BEEN USED TO
DISCRIMINATE AGAINST VOTERS ON ACCOUNT OF THEIR COLOR, THE ACT ENFORCES
THE FOURTEENTH AND FIFTEENTH AMENDMENTS BY BARRING THE USE OF SUCH
TESTS IN ALL ELECTIONS, STATE AND NATIONAL, FOR A FIVE-YEAR PERIOD. 
THIRD:  THE ACT FORBIDS STATES FROM DISQUALIFYING VOTERS IN NATIONAL
ELECTIONS FOR PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTORS BECAUSE THEY
HAVE NOT MET STATE RESIDENCY REQUIREMENTS. 

FOR THE REASONS SET OUT IN PART I OF THIS OPINION, I BELIEVE
CONGRESS CAN FIX THE AGE OF VOTERS IN NATIONAL ELECTIONS, SUCH AS
CONGRESSIONAL, SENATORIAL, VICE-PRESIDENTIAL AND PRESIDENTIAL
ELECTIONS, BUT CANNOT SET THE VOTING AGE IN STATE AND LOCAL ELECTIONS. 
FOR REASONS EXPRESSED IN SEPARATE OPINIONS, MY BROTHERS DOUGLAS,
BRENNAN, WHITE, AND MARSHALL JOIN ME IN CONCLUDING THAT CONGRESS CAN
ENFRANCHISE 18-YEAR-OLD CITIZENS IN NATIONAL ELECTIONS, BUT DISSENT
FROM THE JUDGMENT THAT CONGRESS CANNOT EXTEND THE FRANCHISE TO 18-YEAR
OLD CITIZENS IN STATE AND LOCAL ELECTIONS.  FOR REASONS EXPRESSED IN
SEPARATE OPINIONS, MY BROTHERS THE CHIEF JUSTICE, HARLAN, STEWART, AND
BLACKMUN JOIN ME IN CONCLUDING THAT CONGRESS CANNOT INTERFERE WITH THE
AGE FOR VOTERS SET BY THE STATES FOR STATE AND LOCAL ELECTIONS.  THEY,
HOWEVER, DISSENT FROM THE JUDGMENT THAT CONGRESS CAN CONTROL VOTER
QUALIFICATIONS IN FEDERAL ELECTIONS.  THEY, HOWEVER, DISSENT FROM THE
JUDGMENT THAT CONGRESS CAN CONTROL VOTER QUALIFICATIONS IN FEDERAL
ELECTIONS.  IN SUMMARY, IT IS THE JUDGMENT OF THE COURT THAT THE 18
YEAR-OLD VOTE PROVISIONS OF THE VOTING RIGHTS ACT AMENDMENTS OF 1970
ARE CONSTITUTIONAL AND ENFORCEABLE INSOFAR AS THEY PERTAIN TO FEDERAL
ELECTIONS AND UNCONSTITUTIONAL AND UNENFORCEABLE INSOFAR AS THEY
PERTAIN TO STATE AND LOCAL ELECTIONS. 

FOR THE REASONS SET OUT IN PART II OF THIS OPINION, I BELIEVE THAT
CONGRESS, IN THE EXERCISE OF ITS POWER TO ENFORCE THE FOURTEENTH AND
FIFTEENTH AMENDMENTS, CAN PROHIBIT THE USE OF LITERACY TESTS OR OTHER
DEVICES USED TO DISCRIMINATE AGAINST VOTERS ON ACCOUNT OF THEIR RACE IN
BOTH STATE AND FEDERAL ELECTIONS.  FOR REASONS EXPRESSED IN SEPARATE
OPINIONS, ALL OF MY BRETHREN JOIN ME IN THIS JUDGMENT.  THEREFORE THE
LITERACY-TEST PROVISIONS OF THE ACT ARE UPHELD. 

FOR THE REASONS SET OUT IN PART III OF THIS OPINION, I BELIEVE
CONGRESS CAN SET RESIDENCY REQUIREMENTS AND PROVIDE FOR ABSENTEE
BALLOTING IN ELECTIONS FOR PRESIDENTIAL AND VICE-PRESIDENTIAL
ELECTORS.  FOR REASONS EXPRESSED IN SEPARATE OPINIONS, MY BROTHERS THE
CHIEF JUSTICE, DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, AND BLACKMUN
CONCUR IN THIS JUDGMENT.  MY BROTHER HARLAN, FOR THE REASONS STATED IN
HIS SEPARATE OPINION, CONSIDERS THAT THE RESIDENCY PROVISIONS OF THE
STATUTE ARE UNCONSTITUTIONAL.  THEREFORE THE RESIDENCY AND ABSENTEE
BALLOTING PROVISIONS OF THE ACT ARE UPHELD. 

   LET JUDGMENTS BE ENTERED ACCORDINGLY. 

        I 

THE FRAMERS OF OUR CONSTITUTION IN ART. I, SEC. 2, THAT MEMBERS OF
THE HOUSE OF REPRESENTATIVES SHOULD BE ELECTED BY THE PEOPLE AND THAT
THE VOTERS FOR REPRESENTATIVES SHOULD HAVE "THE QUALIFICATIONS
REQUISITE FOR ELECTORS OF THE MOST NUMEROUS BRANCH OF THE STATE
LEGISLATURE."  SENATORS WERE ORIGINALLY TO BE ELECTED BY THE STATE
LEGISLATURES, BUT UNDER THE SEVENTEENTH AMENDMENT SENATORS ARE ALSO
ELECTED BY THE PEOPLE, AND VOTERS FOR SENATORS HAVE THE SAME
QUALIFICATIONS AS VOTERS FOR REPRESENTATIVES.  IN THE VERY BEGINNING
THE RESPONSIBILITY OF THE STATE FOR SETTING THE QUALIFICATIONS AS
VOTERS FOR REPRESENTATIVES.  IN THE VERY BEGINNING THE RESPONSIBILITY
OF THE STATES FOR SETTING THE QUALIFICATIONS OF VOTERS IN CONGRESSIONAL
ELECTIONS WAS MADE SUBJECT TO THE POWER OF CONGRESS TO MAKE OR ALTER
SUCH REGULATIONS IF IT DEEMED IT ADVISABLE TO DO SO.  /2/  THIS WAS
DONE IN ART. I, SEC. 4, OF THE CONSTITUTION WHICH PROVIDES: 

"THE TIMES, PLACES, AND MANNER OF HOLDING ELECTIONS FOR

SENATORS AND REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE

  BY THE LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY

  LAW MAKE OR ALTER SUCH REGULATIONS, EXCEPT AS TO THE PLACES OF

  CHUSING SENATORS." 

MOREOVER, THE POWER OF CONGRESS TO MAKE ELECTION REGULATIONS IN
NATIONAL ELECTIONS IS AUGMENTED BY THE NECESSARY AND PROPER CLAUSE. 
SEE MCCULLOCH V. MARYLAND, 4 WHEAT.  316 (1819).  IN UNITED STATES V.
CLASSIC, 313 U.S. 299 (1941), WHERE THE COURT UPHELD CONGRESSIONAL
POWER TO REGULATE PARTY PRIMARIES, MR. JUSTICE STONE SPEAKING FOR THE
COURT CONSTRUED THE INTERRELATION OF THESE CLAUSES OF THE CONSTITUTION,
STATING: 

"WHILE, IN A LOOSE SENSE, THE RIGHT TO VOTE FOR REPRESENTATIVES IN
CONGRESS IS SOMETIMES SPOKEN OF AS A RIGHT DERIVED FROM THE STATES . .
. THIS STATEMENT IS TRUE ONLY IN THE SENSE THAT THE STATES ARE
AUTHORIZED BY THE CONSTITUTION, TO LEGISLATE ON THE SUBJECT AS PROVIDED
BY SEC. 2 OF ART. I, TO THE EXTENT THAT CONGRESS HAS NOT RESTRICTED
STATE ACTION BY THE EXERCISE OF ITS POWERS TO REGULATE ELECTIONS UNDER
SEC. 4 AND ITS MORE GENERAL POWER UNDER ARTICLE I, SEC. 8, CLAUSE 18 OF
THE CONSTITUTION 'TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER
FOR CARRYING INTO EXECUTION THE FOREGOING POWERS.'"  313 U.S.,AT 315. 
SEE ALSO EX PARTE SIEBOLD, 100 U.S. 371 (1880); EX PARTE YARBROUGH, 110
U.S. 651 (1884); SWAFFORD V. TEMPLETON, 185 U.S. 487 (1902); WILEY V.
SINKLER, 179 U.S. 58 (1900). 

THE BREADTH OF POWER GRANTED TO CONGRESS TO MAKE OR ALTER ELECTION
REGULATIONS IN NATIONAL ELECTIONS, INCLUDING THE QUALIFICATIONS OF
VOTERS, IS DEMONSTRATED BY THE FACT THAT THE FRAMERS OF THE
CONSTITUTION AND THE STATE LEGISLATURES WHICH RATIFIED IT INTENDED TO
GRANT TO CONGRESS THE POWER TO LAY OUT OR ALTER THE BOUNDARIES OF THE
CONGRESSIONAL DISTRICTS.  IN THE RATIFYING CONVENTIONS SPEAKERS "ARGUED
THAT THE POWER GIVEN CONGRESS IN ART. I, SEC. 4, WAS MEANT TO BE USED
TO VINDICATE THE PEOPLE'S RIGHT TO EQUALITY OF REPRESENTATION IN THE
HOUSE," WESBERRY V. SANDERS, 376 U.S. 1, 16 (1964), AND THAT CONGRESS
WOULD "'MOST PROBABLY . . . LAY THE STATE OFF INTO DISTRICTS.'"  AND IN
COLGROVE V. GREEN, 328 U.S. 549 (1946), NO JUSTICE OF THIS COURT
DOUBTED CONGRESS' POWER TO REARRANGE THE CONGRESSIONAL DISTRICTS
ACCORDING TO POPULATION; THE FIGHT IN THAT CASE REVOLVED ABOUT THE
JUDICIAL POWER TO COMPEL REDISTRICTING. 

SURELY NO VOTER QUALIFICATION WAS MORE IMPORTANT TO THE FRAMERS THAN
THE GEOGRAPHICAL QUALIFICATION EMBODIED IN THE CONCEPT OF CONGRESSIONAL
DISTRICTS.  THE FRAMERS EXPECTED CONGRESS TO USE THIS POWER TO
ERADICATE "ROTTEN BURROUGHS,"  /3/  AND CONGRESS HAS IN FACT USED ITS
POWER TO PREVENT STATES FROM ELECTING ALL CONGRESSMEN AT LARGE.  /4/
THERE CAN BE NO DOUBT THAT THE POWER TO ALTER CONGRESSIONAL DISTRICT
LINES IS VASTLY MORE SIGNIFICANT IN ITS EFFECT THAN THE POWER TO PERMIT
18-YEAR-OLD CITIZENS TO GO TO THE POLLS AND VOTE IN ALL FEDERAL
ELECTIONS. 

ANY DOUBT ABOUT THE POWERS OF CONGRESS TO REGULATE CONGRESSIONAL
ELECTIONS, INCLUDING THE AGE AND OTHER QUALIFICATIONS OF THE VOTERS,
SHOULD BE DISPELLED BY THE OPINION OF THIS COURT IN SMILEY V. HOLM, 285
U.S. 355 (1932).  THERE, CHIEF JUSTICE HUGHES WRITING FOR A UNANIMOUS
COURT DISCUSSED THE SCOPE OF CONGRESSIONAL POWER UNDER SEC. 4 AT SOME
LENGTH.  HE SAID: 

"THE SUBJECT MATTER IS THE 'TIMES, PLACES AND MANNER OF HOLDING
ELECTIONS FOR SENATORS AND REPRESENTATIVES.'  IT CANNOT BE DOUBTED THAT
THESE COMPREHENSIVE WORDS EMBRACE AUTHORITY TO PROVIDE A COMPLETE CODE
FOR CONGRESSIONAL ELECTIONS, NOT ONLY AS TO TIMES AND PLACES, BUT IN
RELATION TO NOTICES, REGISTRATION, SUPERVISION OF VOTING, PROTECTION OF
VOTERS, PREVENTION OF FRAUD AND CORRUPT PRACTICES, COUNTING OF VOTES,
DUTIES OF INSPECTORS AND CANVASSERS, AND MAKING AND PUBLICATION OF
ELECTION RETURNS; IN SHORT, TO ENACT THE NUMEROUS REQUIREMENTS AS TO
PROCEDURE AND SAFEGUARDS WHICH EXPERIENCE SHOWS ARE NECESSARY IN ORDER
TO ENFORCE THE FUNDAMENTAL RIGHT INVOLVED.  . . . 

     "THIS VIEW IS CONFIRMED BY THE SECOND CLAUSE OF ARTICLE I,

  SECTION 4, WHICH PROVIDES THAT 'THE CONGRESS MAY AT ANY TIME BY

  LAW MAKE OR ALTER SUCH REGULATIONS,' WITH THE SINGLE EXCEPTION

  STATED.  THE PHRASE 'SUCH REGULATIONS' PLAINLY REFERS TO

  REGULATIONS OF THE SAME GENERAL CHARACTER THAT THE LEGISLATURE OF

  THE STATE IS AUTHORIZED TO PRESCRIBE WITH RESPECT TO

  CONGRESSIONAL ELECTIONS.  IN EXERCISING THIS POWER, THE CONGRESS

  MAY SUPPLEMENT THESE STATE REGULATIONS OR MAY SUBSTITUTE ITS

  OWN.  . . . IT 'HAS A GENERAL SUPERVISORY POWER OVER THE WHOLE

  SUBJECT.'"  ID., AT 366-367. 

IN SHORT, THE CONSTITUTION ALLOTTED TO THE STATES THE POWER TO MAKE
LAWS REGARDING NATIONAL ELECTIONS, BUT PROVIDED THAT IF CONGRESS BECAME
DISSATISFIED WITH THE STATE LAWS, CONGRESS COULD ALTER THEM.  /5/  A
NEWLY CREATED NATIONAL GOVERNMENT COULD HARDLY HAVE BEEN EXPECTED TO
SURVIVE WITHOUT THE ULTIMATE POWER TO RULE ITSELF AND TO FILL ITS
OFFICES UNDER ITS OWN LAWS.  THE VOTING RIGHTS ACT AMENDMENTS OF 1970
NOW BEFORE THIS COURT EVIDENCE DISSATISFACTION OF CONGRESS WITH THE
VOTING AGE SET BY MANY OF THE STATES FOR NATIONAL ELECTIONS.  I WOULD
HOLD, AS HAVE A LONG LINE OF DECISIONS IN THIS COURT, THAT CONGRESS HAS
ULTIMATE SUPERVISORY POWER OVER CONGRESSIONAL ELECTIONS.  /6/
SIMILARLY, IT IS THE PREROGATIVE OF CONGRESS TO OVERSEE THE CONDUCT OF
PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS AND TO SET THE
QUALIFICATIONS FOR VOTERS FOR ELECTORS FOR THOSE OFFICES.  IT CANNOT BE
SERIOUSLY CONTENDED THAT CONGRESS HAS LESS POWER OVER THE CONDUCT OF
PRESIDENTIAL ELECTIONS THAN IT HAS OVER CONGRESSIONAL ELECTIONS.  /7/ 

ON THE OTHER HAND, THE CONSTITUTION WAS ALSO INTENDED TO PRESERVE TO
THE STATES THE POWER THAT EVEN THE COLONIES HAD TO ESTABLISH AND
MAINTAIN THEIR OWN SEPARATE AND INDEPENDENT GOVERNMENTS, EXCEPT INSOFAR
AS THE CONSTITUTION ITSELF COMMANDS OTHERWISE.  MY BROTHER HARLAN HAS
PERSUSIVELY DEMONSTRATED THAT THE FRAMERS OF THE CONSTITUTION INTENDED
THE STATES TO KEEP FOR THEMSELVES, AS PROVIDED IN THE TENTH AMENDMENT,
/8/  THE POWER TO REGULATE ELECTIONS.  MY MAJOR DISAGREEMENT WITH MY
BROTHER HARLAN IS THAT, WHILE I AGREE AS TO THE SATTES' POWER TO
REGULATE THE ELECTIONS OF THEIR OWN OFFICIALS, I BELIEVE, CONTRARY TO
HIS VIEW, THAT CONGRESS HAS THE FINAL AUTHORITY OVER FEDERAL
ELECTIONS.  NO FUNCTION IS MORE ESSENTIAL TO THE SEPARATE AND
INDEPENDENT EXISTENCE OF THE STATES AND THEIR GOVERNMENTS THAN THE
POWER TO DETERMINE WITHIN THE LIMITS OF THE CONSTITUTION, THE
QUALIFICATIONS OF THEIR OWN VOTERS FOR STATE, COUNTY, AND MUNICIPAL
OFFICES AND THE NATURE OF THEIR OWN MACHINERY FOR FILLING LOCAL PUBLIC
OFFICES.  POPE V. WILLIAMS, 193 U.S. 621 (1904); MINOR V. HAPPERSETT,
21 WALL.  162 (1875).  MOREOVER, ART. I, SEC. 2, /9/  IS A CLEAR
INDICATION THAT THE FRAMERS INTENDED THE STATES TO DETERMINE THE
QUALIFICATIONS OF THEIR OWN VOTERS FOR STATE OFFICES, BECAUSE THOSE
QUALIFICATIONS WERE ADOPTED FOR FEDERAL OFFICES UNLESS CONGRESS DIRECTS
OTHERWISE UNDER ART. I, SEC. 4.  IT IS A PLAIN FACT OF HISTORY THAT THE
FRAMERS NEVER IMAGINED THAT THE NATIONAL CONGRESS WOULD SET THE
QUALIFICATIONS FOR VOTERS IN EVERY ELECTION FROM PRESIDENT TO LOCAL
CONSTABLE OR VILLAGE ALDERMAN.  IT IS OBVIOUS THAT THE WHOLE
CONSTITUTION RESERVES TO THE STATES THE POWER TO SET VOTER
QUALIFICATIONS IN STATE AND LOCAL ELECTIONS, EXCEPT TO THE LIMITED
EXTENT THAT THE PEOPLE THROUGH CONSTITUTIONAL AMENDMENTS HAVE
SPECIFICALLY NARROWED THE POWERS OF THE STATES.  AMENDMENTS FOURTEEN,
FIFTEEN, NINETEEN, AND TWENTY-FOUR, EACH OF WHICH HAS ASSUMED THAT THE
STATES HAD GENERAL SUPERVISORY POWER OVER STATE ELECTIONS, ARE EXAMPLES
OF EXPRESS LIMITATIONS ON THE POWER OF THE STATES TO GOVERN
THEMSELVES.  AND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT WAS NEVER INTENDED TO DESTROY THE STATES' POWER TO GOVERN
THEMSELVES, MAKING THE NINETEENTH AND TWENTY-FOURTH AMENDMENTS
SUPERFLUOUS.  MY BROTHER BRENNAN'S OPINION, IF CARRIED TO ITS LOGICAL
CONCLUSION, WOULD, UNDER THE GUISE OF INSURING EQUAL PROTECTION, BLOT
OUT ALL STATE POWER, LEAVING THE 50 STATES AS LITTLEMORE THAN IMPOTENT
FIGUREHEADS.  IN INTERPRETING WHAT THE FOURTEENTH AMENDMENT MEANS, THE
EQUAL PROTECTION CLAUSE SHOULD NOT BE STRETCHED TO NULLIFY THE STATES'
POWERS OVER ELECTIONS WHICH THEY HAD BEFORE THE CONSTITUTION WAS
ADOPTED AND WHICH THEY HAVE RETAINED THROUGHOUT OUR HISTORY. 

OF COURSE, THE ORIGINAL DESIGN OF THE FOUNDING FATHERS WAS ALTERED
BY THE CIVIL WAR AMENDMENTS AND VARIOUS OTHER AMENDMENTS TO THE
CONSTITUTION.  THE THIRTEENTH, FOURTEENTH, FIFTEENTH, AND NINETEENTH
AMENDMENTS HAVE EXPRESSLY AUTHORIZED CONGRESS TO "ENFORCE" THE LIMITED
PROHIBITIONS OF THOSE AMENDMENTS BY "APPROPRIATE LEGISLATION."  THE
SOLICITOR GENERAL CONTENDS IN THESE CASES THAT CONGRESS CAN SET THE AGE
QUALIFICATIONS FOR VOTERS IN STATE ELECTIONS UNDER ITS POWER TO ENFORCE
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.     ABOVE ALL
ELSE, THE FRAMERS OF THE CIVIL WAR AMENDMENTS INTENDED TO DENY TO THE
STATES THE POWER TO DISCRIMINATE AGAINST PERSONS ON ACCOUNT OF THEIR
RACE.  LOVING V. VIRGINIA, 388 U.S. 1 (1967); GOMILLION V. LIGHTFOOT,
364 U.S. 339 (1960); BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954);
SLAUGHTER-HOUSE CASES, 16 WALL.  36, 71-72 (1873).  WHILE THIS COURT
HAS RECOGNIZED THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT IN SOME INSTANCES PROTECTS AGAINST DISCRIMINATIONS OTHER THAN
THOSE ON ACCOUNT OF RACE, /10/  SEE REYNOLDS V. SIMS, 377 U.S. 533
(1964); HADLEY V. JUNIOR COLLEGE DISTRICT, 397 U.S. 50 (1970); SEE ALSO
KOTCH V. BOARD OF RIVER PORT PILOTS, 330 U.S. 552 (1947), AND CASES
CITED THEREIN, IT CANNOT BE SUCCESSFULLY ARGUED THAT THE FOURTEENTH
AMENDMENT WAS INTENDED TO STRIP THE STATES OF THEIR POWER, CAREFULLY
PRESERVED IN THE ORIGINAL CONSTITUTION, TO GOVERN THEMSELVES.  THE
FOURTEENTH AMENDMENT WAS SURELY NOT INTENDED TO MAKE EVERY
DISCRIMINATION BETWEEN GROUPS OF PEOPLE A CONSTITUTIONAL DENIAL OF
EQUAL PROTECTION.  NOR WAS THE ENFORCEMENT CLAUSE OF THE FOURTEENTH
AMENDMENT INTENDED TO PERMIT CONGRESS TO PROHIBIT EVERY DISCRIMINATION
BETWEEN GROUPS OF PEOPLE.  ON THE OTHER HAND, THE CIVIL WAR AMENDMENTS
WERE UNQUESTIONABLY DESIGNED TO CONDEMN AND FORBID EVERY DISTINCTION,
HOWEVER TRIFLING, ON ACCOUNT OF RACE. 

TO FULFILL THEIR GOAL OF ENDING RACIAL DISCRIMINATION AND TO PREVENT
DIRECT OR INDIRECT STATE LEGISLATIVE ENCROACHMENT ON THE RIGHTS
GUARANTEED BY THE AMENDMENTS, THE FRAMERS GAVE CONGRESS POWER TO
ENFORCE EACH OF THE CIVIL WAR AMENDMENTS.  THESE ENFORCEMENT POWERS ARE
BROAD.  IN JONES V. ALFRED H. MAYER CO., 392 U.S. 409, 439 (1968), THE
COURT HELD THAT SEC. 2 OF THE THIRTEENTH AMENDMENT "CLOTHED 'CONGRESS
WITH POWER TO PASS ALL LAWS NECESSARY AND PROPER FOR ABOLISHING ALL
BADGES AND INCIDENTS OF SLAVERY IN THE UNITED STATES.'"  IN CONSTRUING
SEC. 5 OF THE FOURTEENTH AMENDMENT, THE COURT HAS STATED: 

"IT IS NOT SAID THE JUDICIAL POWER OF THE GENERAL GOVERNMENT SHALL
EXTEND TO ENFORCING THE PROHIBITIONS AND TO PROTECTING THE RIGHTS AND
IMMUNITIES GUARANTEED.  IT IS NOT SAID THAT BRANCH OF THE GOVERNMENT
SHALL BE AUTHORIZED TO DECLARE VOID ANY ACTION OF A STATE IN VIOLATION
OF THE PROHIBITIONS.  IT IS THE POWER OF CONGRESS WHICH HAS BEEN
ENLARGED."  EX PARTE VIRGINIA, 100 U.S. 339, 345 (1880).  AND IN SOUTH
CAROLINA V. KATZENBACH, 383 U.S. 301 (1966) (BLACK, J., DISSENTING ON
OTHER GROUNDS), THE COURT UPHELD THE LITERACY TEST BAN OF THE VOTING
RIGHTS ACT OF 1965, 79 STAT. 437, UNDER CONGRESS' FIFTEENTH AMENDMENT
ENFORCEMENT POWER. 

AS BROAD AS THE CONGRESSIONAL ENFORCEMENT POWER IS, IT IS NOT
UNLIMITED.  SPECIFICALLY, THERE ARE AT LEAST THREE LIMITATIONS UPON
CONGRESS' POWER TO ENFORCE THE GUARANTEES OF THE CIVIL WAR AMENDMENTS. 
FIRST, CONGRESS MAY NOT BY LEGISLATION REPEAL OTHER PROVISIONS OF THE
CONSTITUTION.  SECOND, THE POWER GRANTED TO CONGRESS WAS NOT INTENDED
TO STRIP THE STATES OF THEIR POWER TO GOVERN THEMSELVES OR TO CONVERT
OUR NATIONAL GOVERNMENT OF ENUMERATED POWERS INTO A CENTRAL GOVERNMENT
OF UNRESTRAINED AUTHORITY OVER EVERY INCH OF THE WHOLE NATION.  THIRD,
CONGRESS MAY ONLY "ENFORCE" THE PROVISIONS OF THE AMENDMENTS AND MAY DO
SO ONLY BY "APPROPRIATE LEGISLATION."  CONGRESS HAS NO POWER UNDER THE
ENFORCEMENT SECTIONS TO UNDERCUT THE AMENDMENTS' GUARANTEES OF PERSONAL
EQUALITY AND FREEDOM FROM DISCRIMINATION, SEE KATZENBACH V. MORGAN, 384
U.S. 641, 651 N. 10 (1966), OR TO UNDERMINE THOSE PROTECTIONS OF THE
BILL OF RIGHTS WHICH WE HAVE HELD THE FOURTEENTH AMENDMENT MADE
APPLICABLE TO THE STATES.  /11/ 

OF COURSE, WE HAVE UPHELD CONGRESSIONAL LEGISLATION UNDER THE
ENFORCEMENT CLAUSES IN SOME CASES WHERE CONGRESS HAS INTERFERED WITH
STATE REGULATIONS OF THE LOCAL ELECTORAL PROCESS.  IN KATZENBACH V.
MORGAN, SUPRA, THE COURT UPHELD A STATUTE WHICH OUTLAWED NEW YORK'S
REQUIREMENT OF LITERACY IN ENGLISH AS A PREREQUISITE TO VOTING AS THIS
REQUIREMENT WAS APPLIED TO PUERTO RICANS WITH CERTAIN EDUCATIONAL
QUALIFICATIONS.  THE NEW YORK STATUTE OVERRIDDEN BY CONGRESS APPLIED TO
ALL ELECTIONS.  AND IN SOUTH CAROLINA V. KATZENBACH, SUPRA (BLACK, J.,
DISSENTING ON OTHER GROUNDS), THE COURT UPHELD THE LITERACY TEST BAN OF
THE VOTING RIGHTS ACT OF 1965.  THAT ACT PROSCRIBED THE USE OF THE
LITERACY TEST IN ALL ELECTIONS IN CERTAIN AREAS.  BUT DIVISION OF POWER
BETWEEN STATE AND NATIONAL GOVERNMENTS, LIKE EVERY PROVISION OF THE
CONSTITUTION, WAS EXPRESSLY QUALIFIED BY THE CIVIL WAR AMENDMENTS' BAN
ON RACIAL DISCRIMINATION.  WHERE CONGRESS ATTEMPTS TO REMEDY RACIAL
DISCRIMINATION UNDER ITS ENFORCEMENT POWERS, ITS AUTHORITY IS ENHANCED
BY THE AVOWED INTENTION OF THE FRAMERS OF THE THIRTEENTH, FOURTEENTH,
AND FIFTEENTH AMENDMENTS.  CF. HARPER V. VIRGINIA BOARD OF ELECTIONS,
383 U.S. 663, 670 (1966) (BLACK, J., DISSENTING). 

IN ENACTING THE 18-YEAR-OLD VOTE PROVISIONS OF THE ACT NOW BEFORE
THE COURT, CONGRESS MADE NO LEGISLATIVE FINDINGS THAT THE 21-YEAR-OLD
VOTE REQUIREMENT WAS USED BY THE STATES TO DISENFRANCHISE VOTERS ON
ACCOUNT OF RACE.  I SERIOUSLY DOUBT THAT SUCH A FINDING, IF MADE, COULD
BE SUPPORTED BY SUBSTANTIAL EVIDENCE.  SINCE CONGRESS HAS ATTEMPTED TO
INVADE AN AREA PRESERVED TO THE STATES BY THE CONSTITUTION WITHOUT A
FOUNDATION FOR ENFORCING THE CIVIL WAR AMENDMENTS' BAN ON RACIAL
DISCRIMINATION, I WOULD HOLD THAT CONGRESS HAS EXCEEDED ITS POWERS IN
ATTEMPTING TO LOWER THE VOTING AGE IN STATE AND LOCAL ELECTIONS.  ON
THE OTHER HAND, WHERE CONGRESS LEGISLATES IN A DOMAIN NOT EXCLUSIVELY
RESERVED BY THE CONSTITUTION TO THE STATES, ITS ENFORCEMENT POWER NEED
NOT BE TIED SO CLOSELY TO THE GOAL OF ELIMINATING DISCRIMINATION ON
ACCOUNT OF RACE. 

TO INVALIDATE PART OF THE VOTING RIGHTS ACT AMENDMENTS OF 1970,
HOWEVER, DOES NOT MEAN THAT THE ENTIRE ACT MUST FALL OR THAT THE
CONSTITUTIONAL PART OF THE 18-YEAR-OLD PROVISION CANNOT BE GIVEN
EFFECT.  IN PASSING THE VOTING RIGHTS ACT AMENDMENTS OF 1970, CONGRESS
RECOGNIZED THAT THE LIMITS OF ITS POWER UNDER THE ENFORCEMENT CLAUSES
WERE LARGELY UNDETERMINED, AND THEREFORE INCLUDED A BROAD SEVERABILITY
PROVISION: 

     "IF ANY PROVISION OF THIS ACT OR THE APPLICATION OF ANY

  PROVISION THEREOF TO ANY PERSON OR CIRCUMSTANCE IS JUDICIALLY

  DETERMINED TO BE INVALID, THE REMAINDER OF THIS ACT OR THE

  APPLICATION OF SUCH PROVISION TO OTHER PERSONS OR CIRCUMSTANCES

  SHALL NOT BE AFFECTED BY SUCH DETERMINATION."  84 STAT. 318. 

IN THIS CASE, IT IS THE JUDGMENT OF THE COURT THAT TITLE III, LOWERING
THE VOTING AGE TO 18, IS INVALID AS APPLIED TO VOTERS IN STATE AND
LOCAL ELECTIONS.  IT IS ALSO THE JUDGMENT OF THE COURT THAT TITLE III
IS VALID WITH RESPECT TO NATIONAL ELECTIONS.  WE WOULD FAIL TO FOLLOW
THE EXPRESS WILL OF CONGRESS IN INTERPRETING ITS OWN STATUTE IF WE
REFUSED TO SEVER THESE TWO DISTINCT ASPECTS OF TITLE III.  MOREOVER, IT
IS A LONGSTANDING CANON OF STATUTORY CONSTRUCTION THAT LEGISLATIVE
ENACTMENTS ARE TO BE ENFORCED TO THE EXTENT THAT THEY ARE NOT
INCONSISTENT WITH THE CONSTITUTION, PARTICULARLY WHERE THE VALID
PORTION OF THE STATUTE DOES NOT DEPEND UPON THE INVALID PART.  SEE,
E.G., WATSON V. BUCK, 313 U.S. 387 (1941); MARSH V. BUCK, 313 U.S. 406
(1941).  HERE, OF COURSE, THE ENFORCEMENT OF THE 18-YEAR-OLD VOTE IN
NATIONAL ELECTIONS IS IN NO WAY DEPENDENT UPON ITS ENFORCEMENT IN STATE
AND LOCAL ELECTIONS. 

        II 

IN TITLE I OF THE VOTING RIGHTS ACT AMENDMENTS OF 1970 CONGRESS
EXTENDED THE PROVISIONS OF THE VOTING RIGHTS ACT OF 1965 WHICH BAN THE
USE OF LITERACY TESTS IN CERTAIN STATES UPON THE FINDING OF CERTAIN
CONDITIONS BY THE UNITED STATES ATTORNEY GENERAL.  THE COURT UPHELD THE
PROVISIONS OF THE 1965 ACT OVER MY PARTIAL DISSENT IN SOUTH CAROLINA V.
KATZENBACH, SUPRA, AND GASTON COUNTY V. UNITED STATES, 395 U.S. 285
(1969).  THE CONSTITUTIONALITY OF TITLE I IS NOT RAISED BY ANY OF THE
PARTIES TO THESE SUITS.  /12/ 

IN TITLE II OF THE AMENDMENTS CONGRESS PROHIBITED UNTIL AUGUST 6,
1975, THE USE OF ANY TEST OR DEVICE RESEMBLING A LITERACY TEST IN ANY
NATIONAL, STATE, OR LOCAL ELECTION IN ANY AREA OF THE UNITED STATES
WHERE SUCH TEST IS NOT ALREADY PROSCRIBED BY THE VOTING RIGHTS ACT OF
1965.  THE STATE OF ARIZONA MAINTAINS THAT TITLE II CANNOT BE ENFORCED
TO THE EXTENT THAT IT IS INCONSISTENT WITH ARIZONA'S LITERACY TEST
REQUIREMENT, ARIZ. REV. STAT. ANN. SECS. 16-101.A.4, 16-101.A.5
(1956).  I WOULD HOLD THAT THE LITERACY TEST BAN OF THE 1970 AMENDMENTS
IS CONSTITUTIONAL UNDER THE ENFORCEMENT CLAUSE OF THE FIFTEENTH
AMENDMENT AND THAT IS SUPERCEDES ARIZONA'S CONFLICTING STATUTES UNDER
THE SUPREMACY CLAUSE OF THE FEDERAL CONSTITUTION. 

IN ENACTING THE LITERACY TEST BAN OF TITLE II CONGRESS HAD BEFORE IT
A LONG HISTORY OF THE DISCRIMINATORY USE OF LITERACY TESTS TO
DISFRANCHISE VOTERS ON ACCOUNT OF THEIR RACE.  CONGRESS COULD HAVE
FOUND THAT AS LATE AS THE SUMMER OF 1968, THE PERCENTAGE REGISTRATION
OF NONWHITE VOTERS IN SEVEN SOUTHERN STATES WAS SUBSTANTIALLY BELOW THE
PERCENTAGE REGISTRATION OF WHITE VOTERS.  /13/  MOREOVER, CONGRESS HAD
BEFORE IT STRIKING EVIDENCE TO SHOW THAT THE PROVISIONS OF THE 1965 ACT
HAD HAD IN THE SPAN OF FOUR YEARS A REMARKABLE IMPACT ON MINOTIRY GROUP
VOTER REGISTRATION.  /14/  CONGRESS ALSO HAD EVIDENCE TO SHOW THAT
VOTER REGISTRATION IN AREAS WITH LARGE SPANISH-AMERICAN POPULATIONS WAS
CONSISTENTLY BELOW THE STATE AND NATIONAL AVERAGES.  IN ARIZONA, FOR
EXAMPLE, ONLY TWO COUNTIES OUT OF EIGHT WITH SPANISH SURNAME
POPULATIONS IN EXCESS OF 15% SHOWED A VOTER REGISTRATION EQUAL TO THE
STATEWIDE AVERAGE.  /15/  ARIZONA ALSO HAS A SERIOUS PROBLEM OF
DEFICIENT VOTER REGISTRATION AMONG INDIANS.  CONGRESSIONAL CONCERN OVER
THE USE OF A LITERACY TEST TO DISFRANCHISE PUERTO RICANS IN NEW YORK
STATE IS ALREADY A MATTER OF RECORD IN THIS COURT.  KATZENBACH V.
MORTAN, SUPRA.  AND AS TO THE NATION AS A WHOLE, CONGRESS HAD BEFORE IT
STATISTICS WHICH DEMONSTRATE THAT VOTER REGISTRATION AND VOTER
PARTICIPATION ARE CONSISTENTLY GREATER IN STATES WITHOUT LITERACY
TESTS.  /16/ 

CONGRESS ALSO HAD BEFORE IT THIS COUNTRY'S HISTORY OF DISCRIMINATORY
EDUCATIONAL OPPORTUNITIES IN BOTH THE NORTH AND THE SOUTH.  THE
CHILDREN WHO WERE DENIED AN EQUIVALENT EDUCATION BY THE "SEPARATE BUT
EQUAL" RULE OF PLESSY V. FERGUSON, 163 U.S. 537 (1896), OVERRULED IN
BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954), ARE NOW OLD ENOUGH TO
VOTE.  THERE IS SUBSTANTIAL, IF NOT OVERWHELMING, EVIDENCE FROM WHICH
CONGRESS COULD HAVE CONCLUDED THAT IT IS A DENIAL OF EQUAL PROTECTION
TO CONDITION THE POLITICAL PARTICIPATION OF CHILDREN EDUCATED IN A DUAL
SCHOOL SYSTEM UPON THEIR EDUCATIONAL ACHIEVEMENT.  MOREOVER, THE
HISTORY OF THIS LEGISLATION SUGGESTS THAT CONCERN WITH EDUCATIONAL
INEQUALITY WAS PERHAPS UPPERMOST IN THE MINDS OF THE CONGRESSMEN WHO
SPONSORED THE ACT.  THE HEARINGS ARE FILLED WITH REFERENCES TO
EDUCATIONAL INEQUALITY.  FACED WITH THIS AND OTHER EVIDENCE THAT
LITERACY TESTS REDUCE VOTER PARTICIPATION IN A DISCRIMINATORY MANNER
NOT ONLY IN THE SOUTH BUT THROUGHOUT THE NATION, CONGRESS WAS SUPPORTED
BY SUBSTANTIAL EVIDENCE IN CONCLUDING THAT A NATIONWIDE BAN ON LITERACY
TESTS WAS APPROPRIATE TO ENFORCE THE CIVIL WAR AMENDMENTS. 

FINALLY, THERE IS YET ANOTHER REASON FOR UPHOLDING THE LITERACY
TESTS PROVISIONS OF THIS ACT.  IN IMPOSING A NATIONWIDE BAN ON LITERACY
TESTS, CONGRESS HAS RECOGNIZED A NATIONAL PROBLEM FOR WHAT IT IS-- A
SERIOUS NATIONAL DILEMMA THAT TOUCHES EVERY CORNER OF OUR LAND.  IN
THIS LEGISLATION CONGRESS HAS RECOGNIZED THAT DISCRIMINATION ON ACCOUNT
OF COLOR AND RACIAL ORIGIN IS NOT CONFINED TO THE SOUTH, BUT EXISTS IN
VARIOUS PARTS OF THE COUNTRY.  CONGRESS HAS DECIDED THAT THE WAY TO
SOLVE THE PROBLEMS OF RACIAL DISCRIMINATION IS TO DEAL WITH NATIONWIDE
DISCRIMINATION WITH NATIONWIDE LEGISLATION.  COMPARE SOUTH CAROLINA V.
KATZENBACH, SUPRA, AND GASTON COUNTY V. UNITED STATES, SUPRA.

III 

IN TITLE II OF THE VOTING RIGHTS ACT AMENDMENTS CONGRESS ALSO
PROVIDED THAT IN PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS, NO VOTER
COULD BE DENIED HIS RIGHT TO CAST A BALLOT BECAUSE HE HAD NOT LIVED IN
THE JURISDICTION LONG ENOUGH TO MEET ITS RESIDENCY REQUIREMENTS. 
FURTHERMORE, CONGRESS PROVIDED UNIFORM NATIONAL RULES FOR ABSENTEE
VOTING IN PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS.  IN ENACTING
THESE REGULATIONS CONGRESS WAS ATTEMPTING TO INSURE A FULLY EFFECTIVE
VOICE TO ALL CITIZENS IN NATIONAL ELECTIONS.  WHAT I SAID IN PART I OF
THIS OPINION APPLIES WITH EQUAL FORCE HERE.  ACTING UNDER ITS BROAD
AUTHORITY TO CREATE AND MAINTAIN A NATIONAL GOVERNMENT, CONGRESS
UNQUESTIONABLY HAS POWER UNDER THE CONSTITUTION TO REGULATE FEDERAL
ELECTIONS.  THE FRAMERS OF OUR CONSTITUTION WERE VITALLY CONCERNED WITH
SETTING UP A NATIONAL GOVERNMENT THAT COULD SURVIVE.  ESSENTIAL TO THE
SURVIVAL AND TO THE GROWTH OF OUR NATIONAL GOVERNMENT IS ITS POWER TO
FILL ITS ELECTIVE OFFICES AND TO INSURE THAT THE OFFICIALS WHO FILL
THOSE OFFICES ARE AS RESPONSIVE AS POSSIBLE TO THE WILL OF THE PEOPLE
WHOM THEY REPRESENT. 

        IV 

OUR JUDGMENTS TODAY GIVE THE FEDERAL GOVERNMENT THE POWER THE
FRAMERS CONFERRED UPON IT, THAT IS, THE FINAL CONTROL OF THE ELECTIONS
OF ITS OWN OFFICERS.  OUR JUDGMENTS ALSO SAVE FOR THE STATES THE POWER
TO CONTROL STATE AND LOCAL ELECTIONS WHICH THE CONSTITUTION ORIGINALLY
RESERVED TO THEM AND WHICH NO SUBSEQUENT AMENDMENT HAS TAKEN FROM
THEM.  /17/  THE GENERALITIES OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT WERE NOT DESIGNED OR ADOPTED TO RENDER THE STATES
IMPOTENT TO SET VOTER QUALIFICATIONS IN ELECTIONS FOR THEIR OWN LOCAL
OFFICIALS AND AGENTS IN THE ABSENCE OF SOME SPECIFIC CONSTITUTIONAL
LIMITATIONS.     /0/  TOGETHER WITH NO. 44, ORIG., TEXAS V. MITCHELL,
ATTORNEY GENERAL, NO. 46, ORIG., UNITED STATES V. ARIZONA, AND NO. 47,
ORIG., UNITED STATES V. IDAHO, ALSO ON BILLS OF COMPLAINT. 

/1A/  (NOTE:  A NUMBERED CATEGORY THAT IS USED FOR MR. JUSTICE
BLACK'S OPINION IS NOT REPEATED BELOW WHERE THE OPINION BEING HEADNOTED
DOES NOT CONCUR IN THE RESULT WITH RESPECT TO THE POINT INVOLVED IN
THAT CATEGORY.) 

/1B/  SEE NOTE, SUPRA, AT 113. 

/1C/  IN NOS. 43, ORIG., AND 44, ORIG., OREGON AND TEXAS,
RESPECTIVELY, INVOKE THE ORIGINAL JURISDICTION OF THIS COURT TO SUE THE
UNITED STATES ATTORNEY GENERAL SEEKING AN INJUNCTION AGAINST THE
ENFORCEMENT OF TITLE III (18-YEAR-OLD VOTE) OF THE ACT.  IN NO. 46,
ORIG., THE UNITED STATES INVOKES OUR ORIGINAL JURISDICTION SEEKING TO
ENJOIN ARIZONA FROM ENFORCING ITS LAWS TO THE EXTENT THAT THEY CONFLICT
WITH THE ACT, AND DIRECTING THE OFFICIALS OF ARIZONA TO COMPLY WITH THE
PROVISIONS OF TITLE II (NATIONWIDE LITERACY TEST BAN), SEC. 201, 84
STAT. 315, AND TITLE III (18-YEAR-OLD VOTE), SECS. 301, 302, 84 STAT.
318, OF THE ACT.  IN NO. 47, ORIG., THE UNITED STATES INVOKES OUR
ORIGINAL JURISDICTION SEEKING TO ENJOIN IDAHO FROM ENFORCING ITS LAWS
TO THE EXTENT THAT THEY CONFLICT WITH TITLE II (ABOLITION OF RESIDENCY
REQUIREMENTS IN PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS), SEC.
202, 84 STAT. 316, AND TITLE III (18-YEAR-OLD VOTE) OF THE ACT.  NO
QUESTION HAS BEEN RAISED CONCERNING THE STANDING OF THE PARTIES OR THE
JURISDICTION OF THIS COURT. 

/2/  ARTICLE I, SEC. 4, WAS A COMPROMISE BETWEEN THOSE DELEGATES TO
THE CONSTITUTIONAL CONVENTION WHO WANTED THE STATES TO HAVE FINAL
AUTHORITY OVER THE ELECTION OF ALL STATE AND FEDERAL OFFICERS AND THOSE
WHO WANTED CONGRESS TO MAKE LAWS GOVERNING NATIONAL ELECTIONS, 2
J.STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 280-282
(1ST ED. 1833).  THE CONTEMPORARY INTERPRETATION OF THIS COMPROMISE
REVEALS THAT THOSE WHO FAVORED NATIONAL AUTHORITY OVER NATIONAL
ELECTIONS PREVAILED.  SIX STATES INCLUDED IN THEIR RESOLUTION OF
RATIFICATION THE RECOMMENDATION THAT A CONSTITUTIONAL AMENDMENT BE
ADOPTED TO CURTAIL THE POWER OF THE FEDERAL GOVERNMENT TO REGULATE
NATIONAL ELECTIONS.  SUCH AN AMENDMENT WAS NEVER ADOPTED. 

A MAJORITY OF THE DELEGATES TO THE MASSACHUSETTS RATIFYING
CONVENTION MUST HAVE ASSUMED THAT ART. I, SEC. 4, GAVE VERY BROAD
POWERS TO CONGRESS.  OTHERWISE THAT CONVENTION WOULD NOT HAVE
RECOMMENDED AN AMENDMENT PROVIDING: 

"THAT CONGRESS DO NOT EXERCISE THE POWERS VESTED IN THEM BY THE 4TH
REFUSE TO MAKE THE REGULATIONS THEREIN MENTIONED, OR SHALL MAKE
REGULATIONS SUBVERSIVE OF THE RIGHTS OF THE PEOPLE TO A FREE AND EQUAL
REPRESENTATION IN CONGRESS, AGREEABLY TO THE CONSTITUTION."  2
J.ELLIOT'S DEBATES ON THE FEDERAL CONSTITUTION 177 (1876). 

THE SPEECH OF MR. CABOT, ON DELEGATE TO THE MASSACHUSETTS
CONVENTION, WHO ARGUED THAT ART. I, SEC. 4, WAS "TO BE AS HIGHLY PRIZED
AS ANY IN THE CONSTITUTION," EXPRESSED A VIEW OF THE BREADTH OF THAT

"IF THE STATE LEGISLATURES ARE SUFFERED TO REGULATE CONCLUSIVELY THE
ELECTIONS OF THE DEMOCRATIC BRANCH, THEY MAY . . . FINALLY ANNIHILATE
THAT CONTROL OF THE GENERAL GOVERNMENT, WHICH THE PEOPLE OUGHT ALWAYS
TO HAVE.  . . . "  ID., AT 26. 

AND CABOT WAS SUPPORTED BY MR. PARSONS, WHO ADDED: 

"THEY MIGHT MAKE AN UNEQUAL AND PARTIAL DIVISION OF THE STATES INTO
DISTRICTS FOR THE ELECTION OF REPRESENTATIVES, OR THEY MIGHT EVEN
DISQUALIFY ONE THIRD OF THE ELECTORS.  WITHOUT THESE POWERS IN
CONGRESS, THE PEOPLE CAN HAVE NO REMEDY; BUT THE 4TH SECTION PROVIDES A
REMEDY, A CONTROLLING POWER IN A LEGISLATURE, COMPOSED OF SENATORS AND
REPRESENTATIVES OF TWELVE STATES, WITHOUT THE INFLUENCE OF OUR
COMMOTIONS AND FACTIONS, WHO WILL HEAR IMPARTIALLY, AND PRESERVE AND
RESTORE TO THE PEOPLE THEIR EQUAL AND SACRED RIGHTS OF ELECTION."  ID.,
AT 27. 

/3/  SEE WESBERRY V. SANDERS, 376 U.S. 1, 14-16 (1964). 

/4/  SEE, E.G., ACT OF AUG. 8, 1911, 37 STAT. 13. 

/5/  MY BROTHER STEWART HAS CITED THE DEBATES OF THE CONSTITUTIONAL
CONVENTION TO SHOW THAT ELLSWORTH, MASON, MADISON, AND FRANKLIN
SUCCESSFULLY OPPOSED GRANTING CONGRESS THE POWER TO REGULATE FEDERAL
ELECTIONS, INCLUDING THE QUALIFICATIONS OF VOTERS, IN THE ORIGINAL
CONSTITUTION.  I READ THE HISTORY OF OUR CONSTITUTION DIFFERENTLY.  MR.
MADISON, FOR EXAMPLE, EXPLAINED ART. I, SEC. 4, TO THE VIRGINIA
RATIFYING CONVENTION AS FOLLOWS: 

"IT WAS THOUGHT THAT THE REGULATION OF TIME, PLACE, AND MANNER OF
ELECTING THE REPRESENTATIVES, SHOULD BE UNIFORM THROUGHOUT THE
CONTINENT.  SOME STATES MIGHT REGULATE THE ELECTIONS ON THE PRINCIPLES
OF EQUALITY, AND OTHERS MIGHT REGULATE THEM OTHERWISE.  THIS DIVERSITY
WOULD BE OBVIOUSLY UNJUST . . . . SHOULD THE PEOPLE OF ANY STATE BY ANY
MEANS BE DEPRIVED OF THE RIGHT OF SUFFRAGE, IT WAS JUDGED PROPER THAT
IT SHOULD BE REMEDIED BY THE GENERAL GOVERNMENT."  3 J.ELLIOT'S DEBATES
ON THE FEDERAL CONSTITUTION 367 (1876). 

AND MR. MASON, WHO WAS SUPPOSEDLY SUCCESSFUL IN OPPOSING A BROAD
GRANT OF POWER TO CONGRESS TO REGULATE FEDERAL ELECTIONS, STILL FOUND
IT NECESSARY TO SUPPORT AN UNSUCCESSFUL VIRGINIA PROPOSAL TO CURB THE
POWER OF CONGRESS UNDER ART. I, SEC. 4.  ID., AT 403. 

/6/  SEE, E.G., EX PARTE SIEBOLD, 100 U.S. 371 (1880); EX PARTE
YARBROUGH, 110 U.S. 651 (1884); UNITED STATES V. MOSLEY, 238 U.S. 383
(1915); UNITED STATES V. CLASSIC, 313 U.S. 299 (1941). 

/7/  WITH REFERENCE TO THE SELECTION OF THE PRESIDENT AND VICE
PRESIDENT, ART. II, SEC. 1, PROVIDES:  "EACH STATE SHALL APPOINT, IN
SUCH MANNER AS THE LEGISLATURE THEREOF MAY DIRECT, A NUMBER OF
ELECTORS, EQUAL TO THE WHOLE NUMBER OF SENATORS AND REPRESENTATIVES TO
WHICH THE STATE MAY BE ENTITLED IN THE CONGRESS.  . . . "  BUT THIS
COURT IN BURROUGHS V. UNITED STATES, 290 U.S. 534 (1934), UPHELD THE
POWER OF CONGRESS TO REGULATE CERTAIN ASPECTS OF ELECTIONS FOR
PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTORS, SPECIFICALLY REJECTING A
CONSTRUCTION OF ART. II, SEC. 1, THAT WOULD HAVE CURTAILED THE POWER OF
CONGRESS TO REGULATE SUCH ELECTIONS.  FINALLY, AND MOST IMPORTANT,
INHERENT IN THE VERY CONCEPT OF A SUPREME NATIONAL GOVERNMENT WITH
NATIONAL OFFICERS IS A RESIDUAL POWER IN CONGRESS TO INSURE THAT THOSE
OFFICERS REPRESENT THEIR NATIONAL CONSTITUENCY AS RESPONSIVELY AS
POSSIBLE.  THIS POWER ARISES FROM THE NATURE OF OUR CONSTITUTIONAL
SYSTEM OF GOVERNMENT AND FROM THE NECESSARY AND PROPER CLAUSE. 

/8/  "THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE
CONSTITUTION, NOR PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE
STATES RESPECTIVELY, OR TO THE PEOPLE."  U.S. CONST., AMDT. X. 

/9/  "THE HOUSE OF REPRESENTATIVES SHALL BE COMPOSED OF MEMBERS
CHOSEN EVERY SECOND YEAR BY THE PEOPLE OF THE SEVERAL STATES, AND THE
ELECTORS IN EACH STATE SHALL HAVE THE QUALIFICATIONS REQUISITE FOR
ELECTORS OF THE MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE." 

/10/  MY BROTHER BRENNAN RELIES UPON CARRINGTON V. RASH, 380 U.S. 89
(1965); CIPRIANO V. CITY OF HOUMA, 395 U.S. 701 (1969); AND EVANS V.
CORNMAN, 398 U.S. 419 (1970).  THESE TYPICAL EQUAL PROTECTION CASES IN
WHICH I JOINED ARE NOT RELEVANT OR MATERIAL TO OUR DECISION IN THE
CASES BEFORE US.  THE ESTABLISHMENT OF VOTER AGE QUALIFICATIONS IS A
MATTER OF LEGISLATIVE JUDGMENT WHICH CANNOT BE PROPERLY DECIDED UNDER
THE EQUAL PROTECTION CLAUSE.  THE CRUCIAL QUESTION HERE IS NOT WHO IS
DENIED EQUAL PROTECTION, BUT, RATHER, WHICH POLITICAL BODY, STATE OR
FEDERAL, IS EMPOWERED TO FIX THE MINIMUM AGE OF VOTERS.  THE FRAMERS
INTENDED THE STATES TO MAKE THE VOTING AGE DECISION IN ALL ELECTIONS
WITH THE PROVISION THAT CONGRESS COULD OVERRIDE STATE JUDGMENTS
CONCERNING THE QUALIFICATIONS OF VOTERS IN FEDERAL ELECTIONS. 

/11/  SEE:  THE FIRST AMENDMENT, E.G., GITLOW V. NEW YORK, 268 U.S.
652 (1925); CANTWELL V. CONNECTICUT, 310 U.S. 296 (1940); EDWARDS V.
SOUTH CAROLINA 372 U.S. 229 (1963); THE FOURTH AMENDMENT, MAPP V. OHIO,
367 U.S. 643 (1961); THE FIFTH AMENDMENT, CHICAGO, B. & Q.R. CO. V.
CHICAGO, 166 U.S. 226 (1897); MALLOY V. HOGAN, 378 U.S. 1 (1964);
BENTON V. MARYLAND, 395 U.S. 784 (1969); THE SIXTH AMENDMENT, GIDEON V.
WAINWRIGHT, 372 U.S. 335 (1963); POINTER V. TEXAS, 380 U.S. 400 (1965);
KLOPFER V. NORTH CAROLINA, 386 U.S. 213 (1967); DUNCAN V. LOUISIANA,
391 U.S. 145 (1968); AND THE EIGHTH AMENDMENT, ROBINSON V. V.
CALIFORNIA, 370 U.S. 660 (1962). 

/12/  YUMA COUNTY, ARIZONA, IS PRESENTLY SUBJECT TO THE LITERACY
TEST BAN OF THE VOTING RIGHTS ACT OF 1965 PURSUANT TO A DETERMINATION
OF THE ATTORNEY GENERAL UNDER SEC. 4(A) OF THE 1965 ACT.  I DO NOT
UNDERSTAND ARIZONA TO CONTEST THE APPLICATION OF THE 1965 ACT OR ITS
EXTENSION TO THAT COUNTY.  ARIZONA "DOES NOT QUESTION" CONGRESS'
AUTHORITY TO ENFORCE THE FOURTEENTH AND FIFTEENTH AMENDMENTS "WHEN
CONGRESS POSSESS A 'SPECIAL LEGISLATIVE COMPETENTC'"; AND CITES SOUTH
CAROLINA V. KATZENBACH, 383 U.S. 301 (1966), AND KATZENBACH V. MORGAN,
384 U.S. 641 (1966), WITH APPROVAL.  ANSWER AND BRIEF FOR ARIZONA, NO.
46, ORIG., O.T. 1970. 

/13/  HEARINGS ON H.R. 4249, H.R. 5538, AND SIMILAR PROPOSALS BEFORE
SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 91ST CONG.,
1ST SESS., SER.  3, P. 14 (1969). 

/14/  ID., AT 93. 

/15/  HEARINGS ON S. 818, S. 2456, S. 2507, AND TITLE IV OF S. 2029
BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE
COMMITTEE ON THE JUDICIARY, 91ST CONG., 1ST AND 2D SESS., 406 (1969
1970). 

/16/  ID., AT 401. 

/17/  THAT THESE VIEWS ARE NOT NOVEL IS DEMONSTRATED BY MR. JUSTICE
STORY IN HIS COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES,
VOL. 2, PP. 284-285 (1ST ED. 1833): 

"THERE IS, TOO, IN THE NATURE OF SUCH A PROVISION (ART. I, SEC. 4),
SOMETHING INCONGROUS, IF NOT ABSURD.  WHAT WOULD BE SAID OF A CLAUSE
INTRODUCED INTO THE NATIONAL CONSTITUTION TO REGULATE THE STATE
ELECTIONS OF THE MEMBERS OF THE STATE LEGISLATURE?  IT WOULD BE DEEMED
A MOST UNWARRANTABLE TRANSFER OF POWER, INDICATING A PREMEDITATED
DESIGN TO DESTROY THE STATE GOVERNMENTS.  IT WOULD BE DEEMED SO
FLAGRANT A VIOLATION OF PRINCIPLE, AS TO REQUIRE NO COMMENT.  IT WOULD
BE SAID, AND JUSTLY, THAT THE STATE GOVERNMENTS OUGHT TO POSSESS THE
POWER OF SELF-EXISTENCE AND SELF-ORGANIZATION, INDEPENDENT OF THE
PLEASURE OF THE NATIONAL GOVERNMENT.  WHY DOES NOT THE SAME REASONING
APPLY TO THE NATIONAL GOVERNMENT?  WHAT REASON IS THERE TO SUPPOSE,
THAT THE STATE GOVERNMENTS WILL BE MORE TRUE TO THE UNION, THAN THE
NATIONAL GOVERNMENT WILL BE TO THE STATE GOVERNMENTS?" 

MR. JUSTICE DOUGLAS. 

I DISSENT FROM THE JUDGMENTS OF THE COURT INSOFAR AS THEY DECLARE
SEC. 302 OF THE VOTING RIGHTS ACT, 84 STAT. 318, UNCONSTITUTIONAL AS
APPLIED TO STATE ELECTIONS AND CONCUR IN THE JUDGMENTS AS THEY AFFECT
FEDERAL ELECTIONS, BUT FOR DIFFERENT REASONS.  I RELY ON THE EQUAL
PROTECTION CLAUSE AND ON THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE
FOURTEENTH AMENDMENT. 

        I 

THE GRANT OF THE FRANCHISE TO 18-YEAR-OLDS BY CONGRESS IS IN MY VIEW
VALID ACROSS THE BOARD. 

I SUPPOSE THAT IN 1920, WHEN THE NINETEENTH AMENDMENT WAS RATIFIED
GIVING WOMEN THE RIGHT TO VOTE, IT WAS ASSUMED BY MOST CONSTITUTIONAL
EXPERTS THAT THERE WAS NO RELIEF BY WAY OF THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT.  IN MINOR V. HAPPERSETT, 21 WALL.  162,
THE COURT HELD IN THE 1874 TERM THAT A STATE COULD CONSTITUTIONALLY
RESTRICT THE FRANCHISE TO MEN.  WHILE THE FOURTEENTH AMENDMENT WAS
RELIED UPON, THE THRUST OF THE OPINION WAS DIRECTED AT THE PRIVILEGES
AND IMMUNITIES CLAUSE WITH A SUBSIDIARY REFERENCE TO THE DUE PROCESS
CLAUSE.  IT WAS MUCH LATER, INDEEDNOT UNTIL THE 1961 TERM-- NEARLY A
CENTURY AFTER THE FOURTEENTH AMENDMENT WAS ADOPTED-- THAT
DISCRIMINATION AGAINST VOTERS ON GROUNDS OTHER THAN RACE WAS STRUCK
DOWN. 

THE FIRST CASE IN WHICH THIS COURT STRUCK DOWN A STATUTE UNDER THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT WAS STRAUDER V.
WEST VIRGINIA, 100 U.S. 303, DECIDED IN THE 1879 TERM.  /1/  IN THE
1961 TERM WE SQUARELY HELD THAT THE MANNER OF APPORTIONMENT OF MEMBERS
OF A STATE LEGISLATURE RAISED A JUSTICIABLE QUESTION UNDER THE EQUAL
PROTECTION CLAUSE, BAKER V. CARR, 369 U.S. 186.  THAT CASE WAS FOLLOWED
BY NUMEROUS OTHERS, E.G.: THAT ONE PERSON COULD NOT BE GIVEN TWICE OR
10 TIMES THE VOTING POWER OF ANOTHER PERSON IN A STATE-WIDE ELECTION
MERELY BECAUSE HE LIVED IN A RURAL AREA OR IN THE SMALLEST RURAL
COUNTY; /2/  THAT THE PRINCIPLE OF EQUALITY APPLIED TO BOTH HOUSES OF A
BICAMERAL LEGISLATURE; /3/  THAT POLITICAL PARTIES RECEIVE PROTECTION
UNDER THE EQUAL PROTECTION CLAUSE JUST AS VOTERS DO.  /4/ 

THE REAPPORTIONMENT CASES, HOWEVER, ARE NOT QUITE IN POINT HERE,
THOUGH THEY ARE THE TARGET OF MY BROTHER HARLAN'S DISSENT.  HIS
PAINSTAKING REVIEW OF THE HISTORY OF THE EQUAL PROTECTION CLAUSE LEADS
HIM TO CONCLUDE THAT "POLITICAL" RIGHTS ARE NOT PROTECTED THOUGH
"CIVIL" RIGHTS ARE PROTECTED.  THE PROBLEM OF WHAT QUESTIONS ARE
"POLITICAL" HAS BEEN A RECURRING ISSUE IN STHIS COURT FROM THE
BEGINNING, AND WE RECENTLY REVIEWED THEM ALL IN BAKER V. CARR, SUPRA,
AND IN POWELL V. MCCORMACK, 395 U.S. 486.  BAKER V. CARR WAS A
REAPPORTIONMENT CASE AND POWELL V. MCCORMACK INVOLVED THE EXCLUSION
FROM THE HOUSE OF REPRESENTATIVES OF A CONGRESSMAN.  THE ISSUE OF
"POLITICAL" QUESTION VERSUS "JUSTICIABLE" QUESTION WAS ARGUED PRO AND
CON IN THOSE CASES; AND MY BROTHER HARLAN STATED IN BAKER V. CARR, 369
U.S.,AT 330 ET SEQ., AND ON RELATED OCCASIONS (GRAY V. SANDERS, 372
U.S. 368, 382; WESBERRY V. SANDERS, 376 U.S. 1, 20; REYNOLDS V. SIMS,
377 U.S. 533 589) HIS VIEWS ON THE CONSTITUTIONAL DIMENSIONS OF THE
"POLITICAL" QUESTION IN THE SETTING OF THE REAPPORTIONMENT PROBLEM. 
THOSE CASES INVOLVED THE QUESTION WHETHER LEGISLATURE MUST BE SO
STRUCTURED AS TO REFLECT WITH APPROXIMATE EQUALITY THE VOICE OF EVERY
VOTER.  THE ULTIMATE QUESTION WAS WHETHER, ABSENT A PROPER
APPORTIONMENT BY THE LEGISLATURE, A FEDERAL COURT COULD ITSELF MAKE AN
APPORTIONMENT.  THAT KIND OF PROBLEM RAISED ISSUES IRRELEVANT HERE. 
REAPPORTIONMENT, AS OUR EXPERIENCE SHOWS, PRESENTED A TANGLE OF
PARTISAN POLITICS IN WHICH GEOGRAPHY, ECONOMICS, URBAN LIFE, RURAL
CONSTITUENCIES, AND NUMEROUS OTHER NONLEGAL FACTORS PLAY VARYING
ROLES.  THE COMPETENCY OF COURTS TO DEAL WITH THEM WAS CHALLENGED.  YET
WE HELD THESE ISSUES WERE JUSTICIABLE.  NOEN OF THOSE SO-CALLED
"POLITICAL"  QUESTIONS ARE INVOLVED HERE. 

THIS CASE, SO FAR AS EQUAL PROTECTION IS CONCERNED, IS NO WHIT
DIFFERENT FROM A CONTROVERSY OVER A STATE LAW THAT DISQUALIFIES WOMEN
FROM CERTAIN TYPES OF EMPLOYMENT, GOESAERT V. CLEARY, 335 U.S. 464, OR
THAT IMPOSES A HEAVIER PUNISHMENT ON ONE CLASS OF OFFENDER THAN ON
ANOTHER WHOSE CRIME IS NOT INTRINSICALLY DIFFERENT.  SKINNER V.
OKLAHOMA, 316 U.S. 535.  THE RIGHT TO VOTE IS, OF COURSE, DIFFERENT IN
ONE RESPECT FROM THE OTHER RIGHTS IN THE ECONOMIC, SOCIAL, OR POLITICAL
FIELD WHICH, AS INDICATED IN THE APPENDIX TO THIS OPINION, ARE UNDER
THE EQUAL PROTECTION CLAUSE.  THE RIGHT TO VOTE IS A CIVIL RIGHT DEEPLY
EMBEDDED IN THE CONSTITUTION.  ARTICLE I, SEC. 2, PROVIDES THAT THE
HOUSE IS COMPOSED OF MEMBERS "CHOSEN . . . BY THE PEOPLE" AND THE
ELECTORS "SHALL HAVE THE QUALIFICATIONS REQUISITE FOR ELECTORS OF THE
MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE."  THE SEVENTEENTH
AMENDMENT STATES THAT SENATORS SHALL BE "ELECTED BY THE PEOPLE."  THE
FIFTEENTH AMENDMENT SPEAKS OF THE "RIGHT OF CITIZENS OF THE UNITED
STATES TO VOTE"-- NOT ONLY IN FEDERAL BUT IN STATE ELECTIONS.  THE
COURT IN EX PARTE YARBROUGH, 110 U.S. 651, 665, STATED: 

"THIS NEW CONSTITUTIONAL RIGHT WAS MAINLY DESIGNED FOR CITIZENS OF
AFRICAN DESCENT.  THE PRINCIPLE, HOWEVER, THAT THE PROTECTION OF THE
EXERCISE OF THIS RIGHT IS WITHIN THE POWER OF CONGRESS, IS AS NECESSARY
TO THE RIGHT OF OTHER CITIZENS TO VOTE AS TO THE COLORED CITIZEN, AND
TO THE RIGHT TO VOTE IN GENERAL AS TO THE RIGHT TO BE PROTECTED AGAINST
DISCRIMINATION." 

IT WAS IN THAT TRADITION THAT WE SAID IN REYNOLDS V. SIMS, SUPRA, AT
555, "THE RIGHT TO VOTE FREELY FOR THE CANDIDATE OF ONE'S CHOICE IS OF
THE ESSENCE OF A DEMOCRATIC SOCIETY, AND ANY RESTRICTIONS ON THAT RIGHT
STRIKE AT THE HEART OF REPRESENTATIVE GOVERNMENT." 

THIS "RIGHT TO CHOOSE, SECURED BY THE CONSTITUTION," UNITED STATES
V. CLASSIC, 313 U.S. 299, 315, IS A CIVIL RIGHT OF THE HIGHEST ORDER. 
VOTING CONCERNS "POLITICAL" MATTERS; BUT THE RIGHT IS NOT "POLITICAL"
IN THE CONSTITUTIONAL SENSE.  INTERFERENCE WITH IT HAS GIVEN RISE TO A
LONG AND CONSISTENT LINE OF DECISIONS BY THE COURT; AND THE CLAIM HAS
ALWAYS BEEN UPHELD AS JUSTICIABLE.  /5/  WHATEVER DISTINCTION MAY HAVE
BEEN MADE, FOLLOWING THE CIVIL WAR, BETWEEN "CIVIL" AND "POLITICAL"
RIGHTS, HAS PASSED INTO HISTORY.  IN HARPER V; VIRGINIA BOARD OF
ELECTIONS, 383 U.S. 663, 669, WE STATED:  "NOTIONS OF WHAT CONSTITUTES
EQUAL TREATMENT FOR PURPOSES OF THE EQUAL PROTECTION CLAUSE DO
CHANGE."  THAT STATEMENT IS IN HARMONY WITH MY VIEW OF THE FOURTEENTH
AMENDMENT, AS EXPRESSED BY MY BROTHER BRENNAN:  "WE MUST THEREFORE
CONCLUDE THAT ITS FRAMERS UNDERSTOOD THEIR AMENDMENT TO BE A BROADLY
WORDED INJUNCTION CAPABLE OF BEING INTERPRETED BY FUTURE GENERATIONS IN
ACCORDANCE WITH THE VISION AND NEEDS OF THOSE GENERATIONS."  POST, AT
278.  HENCE THE HISTORY OF THE FOURTEENTH AMENDMENT TENDERED BY MY
BROTHER HARLAN IS IRRELEVANT TO THE PRESENT PROBLEM. 

SINCE THE RIGHT IS CIVIL AND NOT "POLITICAL," IT IS PROTECTED BY THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT WHICH IN TURN, BY
SEC. 5 OF THAT AMENDMENT, CAN BE "ENFORCED" BY CONGRESS. 

IN CARRINGTON V. RASH, 380 U.S. 89, WE HELD THAT TEXAS COULD NOT BAR
A PERSON, OTHERWISE QUALIFIED, FROM VOTING MERELY BECAUSE HE WAS A
MEMBER OF THE ARMED SERVICES.  OCCUPATION, WE HELD, WHEN USED TO BAR A
PERSON FROM VOTING, WAS THAT INVIDIOUS DISCRIMINATION WHICH THE EQUAL
PROTECTIONCLAUSE CONDEMNS.  IN EVANS V. CORNMAN, 398 U.S. 419, WE HELD
THAT A STATE COULD NOT DENY THE VOTE TO RESIDENTS OF A FEDERAL ENCLAVE
WHEN IT TREATED THEM AS RESIDENTS FOR MANY OTHER PURPOSES.  IN HARPER
V. VIRGINIA BOARD OF ELECTIONS, 383 U.S., AT 666, WE HELD A STATE COULD
NOT INHARMONY WITH THE EQUAL PROTECTION CLAUSE KEEP A PERSON FROM
VOTING IN STATE ELECTIONS BECAUSE OF "THE AFFLUENCE OF THE VOTER OR
PAYMENT OF ANY FEE."  IN KRAMER V. UNION SCHOOL DISTRICT, 395 U.S. 621,
WE HELD THAT A PERSON COULD NOT BE BARRED FROM VOTING IN SCHOOL BOARD
ELECTIONS MERELY BECAUSE HE WAS A BACHELOR.  SO FAR AS THE EQUAL
PROTECTION CLAUSE WAS CONCERNED, WE SAID THAT THE LINE BETEWEN THOSE
QUALIFIED TO VOTE AND THOSE NOT QUALIFIED TURNS ON WHETHER THOSE
EXCLUDED HAVE "A DISTINCT AND DIRECT INTEREST IN THE SCHOOL MEETING
DECISIONS,"  ID., AT 632.  IN CIPRIANO V. CITY OF HOUMA, 395 U.S. 701,
WE HELD THAT A STATE LAW WHICH GAVE ONLY "PROPERTY TAXPAYERS" THE RIGHT
TO VOTE ON THE ISSUANCE OF REVENUE BONDS OF A MUNICIPAL UTILITY SYSTEM
VIOLATED EQUAL PROTECTION AS "THE BENEFITS AND BURDENS OF THE BOND
ISSUE FELL INDISCRIMINATELY ON PROPERTY OWNER AND NONPROPERTY OWNER
ALIKE."  ID., AT 705.  AND ONLY ON JUNE 23, 1970, WE HELD IN PHOENIX V.
KOLODZIEJSKI, 399 U.S. 204, THAT IT VIOLATES EQUAL PROTECTION TO
RESTRICT THOSE WHO MAY VOTE ON GENERAL OBLIGATION BONDS TO REAL
PROPERTY TAXPAYERS.  WE LOOKED TO SEE IF THERE WERE ANY "COMPELLING
STATE INTEREST" IN THE VOTING RESTRICTIONS.  WE HELD THAT "NONPROPERTY
OWNERS" ARE NOT "SUBSTANTIALLY LESS INTERESTED IN THE ISSUANCE OF THESE
SECURITIES THAN ARE PROPERTY OWNERS," ID., AT 212, AND THAT
PRESUMPTIVELY "WHEN ALL CITIZENS ARE AFFECTED IN IMPORTANT WAYS BY A
GOVERNMENTAL DECISION SUBJECT TO A REFERENDUM, THE CONSTITUTION DOES
NOT PERMIT WEIGHTED VOTING OR THE EXCLUSION OF OTHERWISE QUALIFIED
CITIZENS FROM THE FRANCHISE."  /6/  ID., AT 209.  AND AS RECENTLY AS
NOVEMBER 9, 1970, WE SUMMARILY AFFIRMED A DISTRICT COURT DECISION (310
F.SUPP.  1172) ON THE BASIS OF KOLODZIEJSKI.  PARISH SCHOOL BOARD OF
ST. CHARLES V. STEWART, POST, P. 884, WHERE LOUISIANA GAVE A VOTE ON
MUNICIPAL BOND ISSUES ONLY TO "PROPERTY TAXPAYERS." 

THE POWERS GRANTED CONGRESS BY SEC. 5 OF THE FOURTEENTH AMENDMENT TO
"ENFORCE" THE EQUAL PROTECTION CLAUSE ARE "THE SAME BROAD POWERS
EXPRESSED IN THE NECESSARY AND PROPER CLAUSE, ART. I, SEC. 8, CL. 18." 
KATZENBACH V. MORGAN, 384 U.S. 641, 650.  AS WE STATED IN THAT CASE,
"CORRECTLY VIEWED, SEC. 5 IS A POSITIVE GRANT OF LEGISLATIVE POWER
AUTHORIZING CONGRESS TO EXERCISE ITS DISCRETION IN DETERMINING WHETHER
AND WHAT LEGISLATION IS NEEDED TO SECURE THE GUARANTEES OF THE
FOURTEENTH AMENDMENT."  ID., AT 651. 

CONGRESS MIGHT WELL CONCLUDE THAT A REDUCTION IN THE VOTING AGE FROM
21 TO 18 WAS NEEDED IN THE INTEREST OF EQUAL PROTECTION.  THE ACT
ITSELF BRANDS THE DENIAL THE FRANCHISE TO 18-YEAR-OLDS AS "A
PARTICULARLY UNFAIR TREATMENT OF SUCH CITIZENS IN VIEW OF THE NATIONAL
DEFENSE RESPONSIBILITIES IMPOSED" ON THEM.  SEC. 301(A)(1), VOTING
RIGHTS ACT, 84 STAT. 318.  THE FACT THAT ONLY MALES ARE DRAFTED WHILE
THE VOTE EXTENDS TO FEMALES AS WELL IS NOT RELEVANT, FOR THE FEMALE
COMPONENT OF THESE FAMILIES OR PROSPECTIVE FAMILIES IS ALSO CAUGHT UP
IN WAR AND HIT HARD BY IT.  CONGRESS MIGHT WELL BELIEVE THAT MEN AND
WOMEN ALIKE SHOULD SHARE THE FATEFUL DECISION. 

IT IS SAID, WHY DRAW THE LINE AT 18?  WHY NOT 17?  CONGRESS CAN DRAW
LINES AND I SEE NO REASON WHY IT CANNOT CONCLUDE THAT 18-YEAR-OLDS HAVE
THAT DEGREE OF MATURITY WHICH ENTITLES THEM TO THE FRANCHISE.  THEY ARE
"GENERALLY CONSIDERED BY AMERICAN LAW TO BE MATURE ENOUGH TO CONTRACT,
TO MARRY, TO DRIVE AN AUTOMOBILE, TO OWN A GUN, AND TO BE RESPONSIBLE
FOR CRIMINAL BEHAVIOR AS AN ADULT."  /7/  MOREOVER, WE ARE ADVISED THAT
UNDER STATE LAWS, MANDATORY SCHOOL ATTENDANCE DOES NOT, AS A MATTER OF
PRACTICE, EXTEND BEYOND THE AGE OF 18.  ON ANY OF THESE ITEMS THE
STATES, OF COURSE, HAVE LEEWAY TO RAISE OR LOWER THE AGE REQUIREMENTS. 
BUT VOTING IS "A FUNDAMENTAL MATTER IN A FREE ADN DEMOCRATIC SOCIETY,"
REYNOLDS V. SIMS, 377 U.S. 533, 561-562.  WHERE "FUNDAMENTAL RIGHTS AND
LIBERTIES ARE ASSERTED UNDER THE EQUAL PROTECTION CLAUSE,
CLASSIFICATIONS WHICH MIGHT INVADE OR RESTRAIN THEM MUST BE CLOSELY
SCRUTINIZED AND CAREFULLY CONFINED."  HARPER V. VIRGINIA BOARD OF
ELECTIONS, 383 U.S. 663, 670.  THERE WE WERE SPEAKING OF STATE
RESTRICTIONS ON THOSE RIGHTS.  HERE WE ARE DEALING WITH THE RIGHT OF
CONGRESS TO "ENFORCE" THE PRINCIPLES OF EQUALITY ENSHRINED IN THE
FOURTEENTH AMENDMENT.  THE RIGHT TO "ENFORCE" GRANTED BY SEC. 5 OF THAT
AMENDMENT IS, AS NOTED, PARALLEL WITH THE NECESSARY AND PROPER CLAUSE
WHOSE REACH CHIEF JUSTICE MARSHALL DESCRIBED IN MCCULLOCH V. MARYLAND,
4 WHEAT.  316, 421:  "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." 

EQUALITY OF VOTING BY ALL WHO ARE DEEMED MATURE ENOUGH TO VOTE IS
CERTAINLY CONSISTENT "WITH THE LETTER AND SPIRIT OF THE CONSTITUTION." 
MUCH IS MADE OF THE FACT THAT ART. I, SEC. 4, OF THE CONSTITUTION /8/
GAVE CONGRESS ONLY THEPOWER TO REGULATE THE "MANNER OF HOLDING
ELECTIONS," NOT THE POWER TO FIX QUALIFICATIONS FOR VOTING IN
ELECTIONS.  BUT THE CIVIL WAR AMENDMENTS-- THE THIRTEENTH, FOURTEENTH,
AND FIFTEENTH-- MADE VAST INROADS ON THE POWER OF THE STATES.  EQUAL
PROTECTION BECAME A STANDARD FOR STATE ACTION AND CONGRESS WAS GIVEN
AUTHORITY TO "ENFORCE" IT.  SEE KATZENBACH V. MORGAN, 384 U.S. 641,
647.  THE MANNER OF ENFORCEMENT INVOLVES DISCRETION; BUT THAT
DISCRETION IS LARGELY ENTRUSTED TO THE CONGRESS, NOT TO THE COURTS.  IF
RACIAL DISCRIMINATION WERE THE ONLY CONCERN OF THE EQUAL PROTECTION
CLAUSE, THEN ACROSS-THE-BOARD VOTING REGULATIONS SET BY THE STATES
WOULD BE OF NO CONCERN TO CONGRESS.  BUT IT IS MUCH TOO LATE IN HISTORY
TO MAKE THAT CLAIM, AS THE CASES LISTED IN THE APPENDIX TO THIS OPINION
SHOW.  MOREOVER, ELECTION INEQUALITIES CREATED BY STATE LAWS AND BASED
ON FACTORS OTHER THAN RACE MAY VIOLATE THE EQUAL PROTECTION CLAUSE, AS
WE HAVE HELD OVER AND OVER AGAIN.  THE REACH OF SEC. 5 TO "ENFORCE"
EQUAL PROTECTION BY ELIMINATING ELECTION INEQUALITIES WOULD SEEM QUITE
BROAD.  CERTAINLY THERE IS NOT A WORD OF LIMITATION IN SEC. 5 WHICH
WOULD RESTRICT ITS APPLICABILITY TO MATTERS OF RACE ALONE.  AND IF, AS
STATED IN MCCULLOCH V. MARYLAND, THE MEASURE OF THE POWER OF CONGRESS
IS WHETHER THE REMEDY IS CONSISTENT "WITH THE LETTER AND SPIRIT OF THE
CONSTITUTION," WE SHOULD HAVE NO DIFFICULTY HERE.  WE SAID IN GRAY V.
SANDERS, 372 U.S. 368, 381:  "THE CONCEPTION OF POLITICAL EQUALITY FROM
THE DECLARATION OF INDEPENDENCE, TO LINCOLN'S GETTYSBURG ADDRESS, TO
THE FIFTEENTH, SEVENTEENTH, AND NINETEENTH AMENDMENTS CAN MEAN ONLY ONE
THING-- ONE PERSON, ONE VOTE." 

IT IS A REASONED JUDGMENT THAT THOSE WHO HAVE SUCH A LARGE "STAKE"
IN MODERN ELECTIONS AS 18-YEAR-OLDS, WHETHER IN TIMES OF WAR OR PEACE,
SHOULD HAVE POLITICAL EQUALITY.  AS WAS MADE PLAIN IN THE DISSENT IN
COLGROVE V. GREEN, 328 U.S. 549, 566 (WHOSE REASONING WAS APPROVED IN
GRAY V. SANDERS, 372 U.S. 368, 379), THE EQUAL PROTECTION CLAUSE DOES
SERVICE TO PROTECT THE RIGHT TO VOTE IN FEDERAL AS WELL AS IN STATE
ELECTIONS. 

I WOULD SUSTAIN THE CHOICE WHICH CONGRESS HAS MADE. 

        II 

I LIKEWISE FIND THE OBJECTIONS THAT ARIZONA AND IDAHO MAKE TO THE
LITERACY AND RESIDENCE REQUIREMENTS OF THE 1970 ACT TO BE
INSUBSTANTIAL. 

LITERACY.  WE HELD IN LASSITER V. NORTHAMPTON ELECTION BOARD, 360
U.S. 45, THAT A STATE COULD APPLY A LITERACY TEST IN SELECTING
QUALIFIED VOTERS PROVIDED THE TEST IS NOT "DISCRIMINATORY" AND DOES NOT
CONTRAVENE "ANY RESTRICTION THAT CONGRESS, ACTING PURSUANT TO ITS
CONSTITUTIONAL POWERS, HAS IMPOSED."  ID., AT 51.  THE QUESTION IN
THESE CASES IS WHETHER CONGRESS HAS THE POWER UNDER SEC. 5 OF THE
FOURTEENTH AMENDMENT TO BAR LITERACY TESTS IN ALL FEDERAL, STATE, OR
LOCAL ELECTIONS. 

FEDERAL, STATE, OR LOCAL ELECTION BECAUSE OF "ANY TEST OR DEVICE" WHICH
IS DEFINED, INTER ALIA, TO INCLUDE LITERACY.  /9/  WE TRAVELED MOST OF
THE DISTANCE NEEDED TO WHERE WE UPHELD THE CONSTITUTIONALITY OF AN
EARLIER ACT WHICH PROHIBITED THE APPLICATION OF ENGLISH LITERACY TESTS
TO PERSONS EDUCATED IN PUERTO RICO.  THE POWER OF CONGRESS IN SEC. 5 TO
"ENFORCE" THE EQUAL PROTECTION CLAUSE WAS SUFFICIENTLY BROAD, WE HELD,
TO ENABLE IT TO ABOLISH VOTING REQUIREMENTS WHICH MIGHT PASS MUSTER
UNDER THE EQUAL PROTECTION CLAUSE, ABSENT AN ACT OF CONGRESS.  ID., AT
648-651. 

THE QUESTION , WE SAID, WAS WHETHER THE ACT OF CONGRESS WAS
"APPROPRIATE LEGISLATION TO ENFORCE THE EQUAL PROTECTION CLAUSE": 

"IT WAS WELL WITHIN CONGRESSIONAL AUTHORITY TO SAY THAT THIS NEED OF
THE PUERTO RICAN MINORITY FOR THE VOTE WARRANTED FEDERAL INTRUSION UPON
ANY STATE INTERESTS SERVED BY THE ENGLISH LITERACY REQUIREMENT.  IT WAS
FOR CONGRESS, AS THE BRANCH THAT MADE THIS JUDGMENT, TO ASSESS AND
WEIGH THE VARIOUS CONFLICTING CONSIDERATIONS-- THE RISK OR
PERVASIVENESS OF THE DISCRIMINATION IN GOVERNMENTAL SERVICES, THE
EFFECTIVENESS OF ELIMINATING THE STATE RESTRICTION ON THE RIGHT TO VOTE
AS A MEANS OF DEALING WITH THE EVIL, THE ADEQUACY OR AVAILABILITY OF
ALTERNATIVE REMEDIES, AND THE NATURE AND SIGNIFICANCE OF THE STATE
INTERESTS THAT WOULD BE AFFECTED BY THE NULLIFICATION OF THE ENGLISH
LITERACY REQUIREMENT AS APPLIED TO RESIDENTS WHO HAVE SUCCESSFULLY
COMPLETED THE SIXTH GRADE IN A PUERTO RICAN SCHOOL.  IT IS NOT FOR US
TO REVIEW THE CONGRESSIONAL RESOLUTION OF THESE FACTORS.  IT IS ENOUGH
THAT WE BE ABLE TO PERCEIVE A BASIS UPON WHICH THE CONGRESS MIGHT
RESOLVE THE CONFLICT AS IT DID."  ID., AT 653.     WE ALSO HELD THAT
THE ACT MIGHT BE SUSTAINED AS AN ATTACK ON THE ENGLISH LANGUAGE TEST AS
A DEVICE TO DISCRIMINATE.  ID., AT 654.  AND WE WENT ON TO SAY THAT
CONGRESS MIGHT HAVE CONCLUDED THAT "AS A MEANS OF FURTHERING THE
INTELLIGENT EXERCISE OF THE FRANCHISE, AN ABILITY TO READ OR UNDERSTAND
SPANISH IS AS EFFECTIVE AS ABILITY TO READ ENGLISH FOR THOSE TO WHOM
SPANISH-LANGUAGE NEWSPAPERS AND SPANISH-LANGUAGE RADIO AND TELEVISION
PROGRAMS ARE AVAILABLE TO INFORM THEM OF ELECTION ISSUES AND
GOVERNMENTAL AFFAIRS."  ID., AT 655. 

WE TOOK A FURTHER STEP TOWARD SUSTAINING THE PRESENT TYPE OF LAW IN
GASTON COUNTY V. UNITED STATES, 395 U.S. 285.  THAT DECISION INVOLVED A
PROVISION OF THE VOTING RIGHTS ACT OF 1965 WHICH SUSPENDED THE USE OF
ANY "TEST OR DEVICE," INCLUDING LITERACY, AS A PREREQUISITE TO
REGISTRATION IN A STATE WHICH WAS FOUND BY THE ATTORNEY GENERAL AND THE
DIRECTOR OF THE CENSUS TO HAVE USED IT IN ANY ELECTION ON NOVEMBER 1,
1964, AND IN WHICH LESS THAN 50% OF THE RESIDENTS OF VOTING AGE WERE
REGISTERED OR HAD VOTED.  /10/  GASTON COUNTY, NORTH CAROLINA, WAS SO
CLASSIFIED AND ITS LITERACY TEST WAS THEREUPON SUSPENDED.  IN A SUIT TO
REMOVE THE BAN WE SUSTAINED IT.  WE NOTED THAT CONGRESS HAD CONCLUDED
THAT "THE COUNTY DEPRIVED ITS BLACK RESIDENTS OF EQUAL EDUCATIONAL
OPPORTUNITIES, WHICH IN TURN DEPRIVED THEM OF AN EQUAL CHANCE TO PASS
THE LITERACY TEST."  ID., AT 291.  CONGRESS, IT WAS ARGUED, SHOULD HAVE
EMPLOYED A FORMULA BASED ON EDUCATIONAL DISPARITIES BETWEEN THE RACES
OR ONE BASED ON LITERACY RATES.  ID., AT 292.  BUT THE CHOICE OF
APPROPRIATE REMEDIES IS FOR CONGRESS AND THE RANGE OF AVAILABLE ONES IS
WIDE.  IT WAS NOT A DEFECT IN THE FORMULAETHAT SOME LITERATE NEGROES
WOULD BE TURNED OUT BY NEGRO SCHOOLS. 

"IT IS ONLY REASONABLE TO INFER THAT AMONG BLACK CHILDREN COMPELLED TO
ENDURE A SEGREGATED AND INFERIOR EDUCATION, FEWER WILL ACHIEVE ANY
GIVEN DEGREE OF LITERACY THAN WILL THEIR BETTER-EDUCATED WHITE
CONTEMPORARIES.  AND ON THE GOVERNMENT'S SHOWING, IT WAS CERTAINLY
PROPER TO INFER THAT GASTON COUNTY'S INFERIOR NEGRO SCHOOLS PROVIDED
MANY OF ITS NEGRO RESIDENTS WITH A SUBLITERATE EDUCATION, AND GAVE MANY
OTHERS LITTLE INDUCEMENT TO ENTER OR REMAIN IN SCHOOL."  ID., AT 295
296. 

BY LIKE REASONING CONGRESS IN THE PRESENT LEGISLATION NEED NOT MAKE
FINDINGS AS TO THE INCIDENCE OF LITERACY.  IT CAN RELY ON THE FACT THAT
MOST STATES DO NOT HAVE LITERACY TESTS; THAT THE TESTS HAVE BEEN USED
AT TIMES AS A DISCRIMINATORY WEAPON AGAINST SOME MINORITIES, NOT ONLY
NEGROES BUT AMERICANS OF MEXICAN ANCESTRY, AND AMERICAN INDIANS; THAT
RADIO AND TELEVISION HAVE MADE IT POSSIBLE FOR A PERSON TO BE WELL
INFORMED EVEN THOUGH HE MAY NOT BE ABLE TO READ AND WRITE.  WE KNOW
FROM THE LEGISLATIVE HISTORY THAT THESE AND OTHER DESIDERATA INFLUENCED
CONGRESS IN THE CHOICE IT MADE IN THE PRESENT LEGISLATION; AND WE
CERTAINLY CANNOT SAY THAT THE MEANS USED WERE INAPPROPRIATE. 

RESIDENCE.  THE RESIDENCY REQUIREMENTS OF SEC. 202 RELATE ONLY TO
ELECTIONS FOR PRESIDENT AND VICE PRESIDENT.  SECTION 202 ABOLISHES
DURATIONAL RESIDENCY /11/  AND PROVIDES FOR ABSENTEE VOTING PROVIDED
THAT REGISTRATION MAY BE REQUIRED 30 DAYS PRIOR TO THE ELECTION.  THE
EFFECT OF SEC. 202 IS TO REDUCE ALL STATE DURATIONAL RESIDENCY
REQUIREMENTS TO 30 DAYS. 

IN PRESIDENTIAL ELECTIONS NO PAROCHIAL INTERESTS OF THE STATE,
COUNTY, OR CITY ARE INVOLVED.  CONGRESS FOUND THAT A DURATIONAL
RESIDENCY REQUIREMENT "IN SOME INSTANCES HAS THE IMPERMISSIBLE PURPOSE
OR EFFECT OF DENYING CITIZENS THE RIGHT TO VOTE."  SEC. 202(A)(4).  IT
FOUND IN SEC. 202(A)(3) THAT A DURATIONAL RESIDENCY REQUIREMENT DENIES
CITIZENS THEIR PRIVILEGES AND IMMUNITIES.  /12/ 

THE SEVENTEENTH AMENDMENT STATES THAT SENATORS SHALL BE "ELECTED BY
THE PEOPLE."  ARTICLE I, SEC. 2, PROVIDES THAT THE HOUSE SHALL BE
CHOSEN "BY THE PEOPLE OF THE SEVERAL STATES."  THE RIGHT TO VOTE FOR
NATIONAL OFFICERS IS A PRIVILEGE AND IMMUNITY OF NATIONAL CITIZENSHIP. 
EX PARTE YARBROUGH, 110 U.S. 651; IN RE QUARLES, 158 U.S. 532, 534;
TWINING V. NEW JERSEY, 211 U.S. 78, 97; BURROUGHT V. UNITED STATES, 290
U.S. 534; UNITED STATES V. CLASSIC, 313 U.S. 299, 315.  /13/ 

THE FOURTEENTH AMENDMENT PROVIDED THAT: "NO STATE SHALL MAKE OR
ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF
CITIZENS OF THE UNITED STATES."  DURATIONAL RESIDENCY LAWS OF THE
STATES HAD SUCH EFFECT, SAYS CONGRESS.  THE "CHOICE OF MEANS" TO
PROTECT SUCH A PRIVILEGE PRESENTS "A QUESTION PRIMARILY ADDRESSED TO
THE JUDGMENT OF CONGRESS."  BURROUGHS V. UNITED STATES, SUPRA, AT 547. 
THE RELEVANCE OF THE MEANS WHICH CONGRESS ADOPTS TO THE CONDITION
SOUGHT TO BE REMEDIED, THE DEGREE OF THEIR NECESSITY, AND THE EXTENT OF
THEIR EFFICACY ARE ALL MATTERS FOR CONGRESS.  ID., AT 548. 

THE JUDGMENT WHICH CONGRESS HAS MADE RESPECTING THE BAN OF
DURATIONAL RESIDENCY IN PRESIDENTIAL ELECTIONS IS PLAINLY A PERMISSIBLE
ONE IN ITS EFFORTS UNDER SEC. 5 TO "ENFORCE" THE FOURTEENTH AMENDMENT. 

/1/  STRAUDER WAS TRIED FOR MURDER.  HE HAD SOUGHT REMOVAL TO
FEDERAL COURTS ON THE GROUND THAT "BY VIRTUE OF THE LAWS OF THE STATE
OF WEST VIRGINIA NO COLORED MAN WAS ELIGIBLE TO BE A MEMBER OF THE
GRAND JURY OR TO SERVE ON A PETIT JURY IN THE STATE."  ID., AT 304.  HE
WAS CONVICTED OF MURDER AND THE WEST VIRGINIA SUPREME COURT AFFIRMED. 
THIS COURT HELD THE WEST VIRGINIA STATUTE LIMITING JURY DUTY TO WHITE
ONLY UNCONSTITUTIONAL: 

"WE DO NOT SAY THAT WITHIN THE LIMITS FROM WHICH IT IS NOT EXCLUDED
BY THE AMENDMENT A STATE MAY NOT PRESCRIBE THE QUALIFICATIONS OF ITS
JURORS, AND IN SO DOING MAKE DISCRIMINATIONS.  . . . (THE AIM OF THE
FOURTEENTH AMENDMENT) WAS AGAINST DISCRIMINATION BECAUSE OF RACE OR
COLOR."  100 U.S.,AT 310. 

/2/  GRAY V. SANDERS, 372 U.S. 368; DAVIS V. MANN, 377 U.S. 678;
SWANN V. ADAMS, 385 U.S. 440; KILGARLIN V. HILL, 386 U.S. 120; AVERY V.
MIDLAND COUNTY, 390 U.S. 474; MOORE V. OGILVIE, 394 U.S. 814; HADLEY V.
JUNIOR COLLEGE DISTRICT, 397 U.S. 50. 

/3/  REYNOLDS V. SIMS, 377 U.S. 533; WMCA V. LOMENZO, 377 U.S. 633;
ROMAN V. SINCOCK, 377 U.S. 695. 

/4/  WILLIAMS V. RHODES, 393 U.S. 23.  WE ALSO HELD IN FEDERAL
ELECTIONS THAT THE COMMAND OF ART. I, SEC. 2, OF THE CONSTITUTION THAT
REPRESENTATIVES BE CHOSEN "BY THE PEOPLE OF THE SEVERAL STATES" MEANS
THAT "AS NEARLY AS IS PRACTICABLE ONE MAN'S VOTE IN A CONGRESSIONAL
ELECTION IS TO BE WORTH AS MUCH AS ANOTHER'S," WESBERRY V. SANDERS, 376
U.S. 1, 7-8, AND THAT THAT MEANT "VOTE-DILUTING DISCRIMINATION" COULD
NOT BE ACCOMPLISHED "THROUGH THE DEVICE OF DISTRICTS CONTAINING WIDELY
VARIED NUMBERS OF INHABITANTS."  ID., AT 8; LUCAS V. COLORADO GENERAL
ASSEMBLY, 377 U.S. 713; KIRKPATRICK V. PREISLER, 394 U.S. 526; WELLS V.
ROCKEFELLER, 394 U.S. 542. 

/5/  EX PARTE SIEBOLD, 100 U.S. 371; EX PARTE YARBROUGH, 110 U.S.
651; GUINN V. UNITED STATES, 238 U.S. 347; UNITED STATES V. MOSLEY, 238
U.S. 383; LANE V. WILSON, 307 U.S. 268; UNITED STATES V. CLASSIC, 313
U.S. 299; UNITED STATES V. SAYLOR, 322 U.S. 385. 

/6/  WE NOTED THAT GENERAL OBLIGATION BONDS MAY BE SATISFIED NOT
FROM REAL PROPERTY TAXES BUT FROM REVENUES FROM OTHER LOCAL TAXES PAID
BY NONOWNERS OF PROPERTY AS WELL AS THOSE WHO OWN REALTY.  MOREOVER, WE
NOTED THAT PROPERTY TAXES PAID INITIALLY BY PROPERTY OWNERS ARE OFTEN
PASSED ON TO TENANTS OR CUSTOMERS.  399 U.S.,AT 209-211. 

/7/  ENGDAHL, CONSTITUTIONALITY OF THE VOTING AGE STATUTE, 39 GEO.
WASH. L. REV. 1, 36 (1970). 

/8/  ARTICLE I, SEC. 4, PROVIDES: "(1) THE TIMES, PLACES AND MANNER
OF HOLDING ELECTIONS FOR SENATORS AND REPRESENTATIVES, SHALL BE
PRESCRIBED IN EACH STATE BY THE LEGISLATURE THEREOF; BUT THE CONGRESS
MAY AT ANY TIME BY LAW MAKE OR ALTER SUCH REGULATIONS, EXCEPT AS TO THE
PLACES OF CHUSING SENATORS. 

"(2) THE CONGRESS SHALL ASSEMBLE AT LEAST ONCE IN EVERY YEAR, AND
SUCH MEETING SHALL BE ON THE FIRST MONDAY IN DECEMBER, UNLESS THEY
SHALL BY LAW APPOINT A DIFFERENT DAY." 

/9/  SECTION 201(B) DEFINES "TEST OR DEVICE" AS "ANY REQUIREMENT
THAT A PERSON AS A PREREQUISITE FOR VOTING OR REGISTRATION FOR VOTING
(1) DEMONSTRATE THE ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET
ANY MATTER, (2) DEMONSTRATE ANY EDUCATIONAL ACHIEVEMENT OR HIS
KNOWLEDGE OF ANY PARTICULAR SUBJECT, (3) POSSESS GOOD MORAL CHARACTER,
OR (4) PROVE HIS QUALIFICATIONS BY THE VOUCHER OF REGISTERED VOTERS OR
MEMBERS OF ANY OTHER CLASS."  84 STAT. 315. 

/10/  THE CONSTITUTIONALITY OF THAT PROCEDURE HAS BEEN SUSTAINED IN
SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301. 

/11/  THIS COURT UPHELD DURATIONAL RESIDENCY REQUIREMENTS AS APPLIED
IN PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS ABSENT AN ACT OF
CONGRESS.  SEE DRUEDING V. DEVLIN, 234 F.SUPP.  721 (MD. 1964), AFF'D,
380 U.S. 125.  SUBSEQUENTLY WE VACATED AS MOOT A CASE PRESENTING THE
SAME QUESTION.  HALL V. BEALS, 396 U.S. 45.  THE DISTRICT COURTS HAVE
BEEN FACED WITH THE ISSUE OF DURATIONAL RESIDENCY REQUIREMENTS AS THEY
WOULD BE APPLIED TO CONGRESSIONAL ELECTIONS.  TWO HAVE CONCLUDED THE
REQUIREMENT IS CONSTITUTIONAL.  HOWE V. BROWN, 319 F.SUPP.  862 (ND
OHIO 1970); COCANOWER V. MARSTON 318 F.SUPP.  402 (ARIZ. 1970). 
ADDITIONALLY, ONE OTHER COURT HAS REFUSED A PRELIMINARY INJUNCTION IN A
CASE PRESENTING THE ISSUE.  PALIAVIN V. HOEL, 320 F.SUPP.  66 (WD WIS.
1970).  SOME DISTRICT COURTS, HOWEVER, BELIEVE THAT DRUEDING CANNOT
STAND (ABSENT AN ACT OF CONGRESS) AFTER CARRINGTON V. RASH, 380 U.S.
89; KRAMER V. UNION SCHOOL DISTRICT, 395 U.S. 621; CIPRIANO V. CITY OF
HOUMA, 395 U.S. 701, AND PHOENIX V. KOLODZIEJSKI, 399 U.S. 204. 
ACCORDINGLY THEY HAVE HELD DURATIONAL RESIDENCY REQUIREMENTS FOR
CONGRESSIONAL ELECTIONS (AND BY IMPLICATION PRESIDENTIAL ELECTIONS)
VIOLATE THE EQUAL PROTECTION CLAUSE.  SEE BURG V. CANNIFFE, 315
F.SUPP.  380 (MASS. 1970); BLUMSTEIN V. ELLINGTON,-- F.SUPP.-- (MD
TENN. 1970); HADNOTT V. AMOS, 320 F.SUPP.  107 (MD ALA. 1970); BUFFORD
V. HOLTON, 319 F.SUPP.  843 (ED VA. 1970). 

IN NONE OF THESE CASES WAS AN ACT OF CONGRESS INVOLVED. 

/12/  ARTICLE IV, SEC. 2, OF THE CONSTITUTION PROVIDES: 

"THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL PRIVILEGES AND
IMMUNITIES OF CITIZENS IN THE SEVERAL STATES." 

THE FOURTEENTH AMENDMENT PROVIDES IN SEC. 1 THAT:  "NO STATE SHALL
MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR
IMMUNITIES OF CITIZENS OF THE UNITED STATES." 

/13/  THE CASES RELIED ON BY MY BROTHER HARLAN, POST, AT 214, ARE
NOT TO THE CONTRARY.  SNOWDEN V. HUGHES, 321 U.S. 1, 7, STATES:  "THE
RIGHT TO BECOME A CANDIDATE FOR STATE OFFICE, LIKE THE RIGHT TO VOTE
FOR THE ELECTION OF STATE OFFICERS . . . IS A RIGHT OR PRIVILEGE OF
STATE CITIZENSHIP."  ARGUABLY MINOR V. HAPPERSETT, 21 WALL.  162, IS TO
THE CONTRARY, BUT TO THE EXTENT ITS DICTA INDICATED OTHERWISE, IT WAS
LIMITED IN EX PARTE YARBROUGH.  BREEDLOVE V. SUTTLES, 302 U.S. 277,
OVERRULED BY HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663,
INVOLVED A POLL TAX APPLIED IN BOTH FEDERAL AND STATE ELECTIONS; IT
ERRONEOUSLY CITED YARBROUGH FOR THE PROPOSITION VOTING IS NOT A
PRIVILEGE AND IMMUNITY OF NATIONAL CITIZENSHIP.  POPE V. WILLIAMS, 193
U.S. 621, INVOLVED DURATIONAL RESIDENCY REQUIREMENTS, BUT EXPRESSLY
RESERVED THE QUESTION OF THEIR APPLICATION TO PRESIDENTIAL AND VICE
PRESIDENTIAL ELECTIONS.  OUR HOLDINGS CONCERNING PRIVILEGES AND
IMMUNITIES OF NATIONAL CITIZENSHIP WERE ANALYZED LESS THAN FIVE YEARS
AGO BY MY BROTHER HARLAN.  AFTER REFERRING TO EX PARTE YARBROUGH, AND
UNITED STATES V. CLASSIC, HE STATED THAT THOSE CASES "ARE ESSENTIALLY
CONCERNED WITH THE VINDICATION OF IMPORTANT RELATIONSHIPS WITH THE
FEDERAL GOVERNMENT-- VOTING IN FEDERAL ELECTIONS, INVOLVEMENT IN
FEDERAL LAW ENFORCEMENT, COMMUNICATING WITH THE FEDERAL GOVERNMENT." 
UNITED STATES V. GUEST, 383 U.S. 745, 772 (SEPARATE OPINION). 

CONTRARY TO THE SUGGESTION OF MY BROTHER HARLAN, POST, AT 213, WE
NEED NOT RELY ON THE POWER OF CONGRESS TO DECLARE THE MEANING OF SEC. 1
OF THE FOURTEENTH AMENDMENT.  THIS COURT HAD DETERMINED THAT VOTING FOR
NATIONAL OFFICERS IS A PRIVILEGE AND IMMUNITY OF NATIONAL CITIZENSHIP. 
NO CONGRESSIONAL DECLARATION WAS NECESSARY.  CONGRESSIONAL POWER UNDER
SEC. 5 OF THE FOURTEENTH AMENDMENT IS, AS STATED, BUTTRESSED BY
CONGRESSIONAL POWER UNDER THE NECESSARY AND PROPER CLAUSE.  THUS EVEN
IF THE DURATIONAL RESIDENCY REQUIREMENTS DO NOT VIOLATE THE PRIVILEGES
AND IMMUNITIES CLAUSE, CONGRESS CAN DETERMINE THAT IT IS NECESSARY AND
PROPER TO ABOLISH THEM IN NATIONAL ELECTIONS TO EFFECTUATE AND FURTHER
THE PURPOSE OF SEC. 1 AS IT HAS BEEN DECLARED BY THIS COURT. 

        APPENDIX TO OPINION OF DOUGLAS, J. 

CASES WHICH HAVE STRUCK DOWN STATE STATUTES UNDER THE EQUAL PROTECTION
CLAUSE OTHER THAN STATUTES WHICH DISCRIMINATE ON THE BASIS OF RACE. 

        STATUTES WHICH DISCRIMINATED AGAINST CERTAIN BUSINESS 

GULF, C. & S.F.R. CO. V. ELLIS, 165 U.S. 150; ATCHISON, T. & S.F.R.
CO. V. VOSBURG, 238 U.S. 56 (RAILROAD MUST PAY ATTORNEY FEES IF IT
LOSES SUIT, BUT OTHER BUSINESSES NEED NOT).  KENTUCKY FINANCE CORP. V.
PARAMOUNT AUTO EXCHANGE, 262 U.S. 544; POWER CO. V. SAUNDERS, 274 U.S.
490 (BURDENS PLACED UPON OUT-OF-STATE CORPORATIONS IN LITIGATION). 

STATUTES WHICH FAVORED CERTAIN BUSINESSES 

CONNOLLY V. UNION SEWER PIPE CO., 184 U.S. 540 (EXEMPTION FROM STATE
ANTITRUST LAW FOR AGRICULTURAL GOODS); SMITH V. CAHOON, 283 U.S. 553
(ACT EXEMPTING CERTAIN MOTOR VEHICLES FROM INSURANCE REQUIREMENTS);
MAYFLOWER FARMS V. TEN EYCK, 297 U.S. 166 (ACT ALLOWING CERTAIN MILK
DEALERS TO SELL AT LOWER THAN THE REGULATED PRICE); HARTFORD CO. V.
HARRISON, 301 U.S. 459 (STATUTE PERMITTING MUTUAL, BUT NOT STOCK,
INSURANCE COMPANIES TO ACT THROUGH SALARIED REPRESENTATIVES), AND MOREY
V. DOWD, 354 U.S. 457 (AMERICAN EXPRESS EXEMPTED FROM LICENSING
REQUIREMENTS APPLIED TO "CURRENCY EXCHANGES").              TAXING
STATUTES STRUCK DOWN 

CONCORDIA INS. CO. V. ILLINOIS, 292 U.S. 535; IOWA-DES MOINES BANK
V. BENNETT, 284 U.S. 239; CUMBERLAND COAL CO. V. BOARD, 284 U.S. 23;
QUAKER CITY CAB CO. V. PENNSYLVANIA, 277 U.S. 389; LOUISVILLE GAS CO.
V. COLEMAN, 277 U.S. 32; HANOVER FIRE INS. CO. V. HARDING, 272 U.S.
494; SCHLESINGER V. WISCONSIN, 270 U.S. 230; SIOUX CITY BRIDGE V.
DAKOTA COUNTY, 260 U.S. 441; F. S. ROYSTER GUANO CO. V. VIRGINIA, 253
U.S. 412; AND SOUTHERN R. CO. V. GREENE, 216 U.S. 400. 

        TREATMENT OF CONVICTED CRIMINALS 

RINALDI V. YEAGER, 384 U.S. 305 (STATUTE REQUIRING UNSUCCESSFUL
CRIMINAL APPELLANTS WHO WERE IN JAIL TO PAY COST OF TRIAL TRANSCRIPT);
BAXSTROM V. HEROLD, 383 U.S. 107 (STATUTE DENYING CONVICT A SANITY
HEARING BEFORE A JURY PRIOR TO CIVIL COMMITMENT); AND SKINNER V.
OKLAHOMA, 316 U.S. 535 (STERILIZATION OF SOME CONVICTS.) 

        INDIGENTS 

DOUGLAS V. CALIFORNIA, 372 U.S. 353 (RULE OF CRIMINAL PROCEDURE
WHICH DID NOT PROVIDE COUNSEL FOR APPEAL TO INDIGENTS); AND SHAPIRO V.
THOMPSON, 394 U.S. 618 (DENIAL OF WELFARE BENEFITS BASED ON RESIDENCY
REQUIREMENTS). 

        LEGITIMACY 

GLONA V. AMERICAN GUARANTEE CO., 391 U.S. 73 (MOTHER DENIED RIGHT TO
SUE FOR WRONGFUL DEATH OF ILLEGITIMATE CHILD); AND LEVY V. LOUISIANA,
391 U.S. 68 (ILLEGITIMATE CHILDREN DENIED RECOVERY FOR WRONGFUL DEATH
OF MOTHER). 

        ALIENS 

TRUAX V. RAICH, 239 U.S. 33 (STATUTE LIMITING THE NUMBER OF ALIENS
THAT COULD BE EMPLOYED TO 20%); AND TAKAHASHI V. FISH & GAME
COMMISSION, 334 U.S. 410 (DENIAL OF FISHING RIGHTS TO ALIENS INELIGIBLE
FOR CITIZENSHIP). 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

FROM THE STANDPOINT OF THIS COURT'S DECISIONS DURING AN ERA OF
JUDICIAL CONSTITUTIONAL REVISION IN THE FIELD OF THE SUFFRAGE, USHERED
IN EIGHT YEARS AGO BY BAKER V. CARR, 369 U.S. 186 (1962), I WOULD FIND
IT DIFFICULT NOT TO SUSTAIN ALL THREE ASPECTS OF THE VOTING RIGHTS ACT
AMENDMENTS OF 1970, PUB. L. 91-285, 84 STAT. 314, HERE CHALLENGED. 
FROM THE STANDPOINT OF THE BEDROCK OF THE CONSTITUTIONAL STRUCTURE OF
THIS NATION, THESE CASES BRING US TO A CROSSROAD THAT IS MARKED WITH A
FORMIDABLE "STOP" SIGN.  THAT SIGN COMPELS US TO PAUSE BEFORE WE ALLOW
THOSE DECISIONS TO CARRY US TO THE POINT OF SANCTIONING CONGRESS'
DECISION TO ALTER STATE-DETERMINED VOTER QUALIFICATIONS BY SIMPLE
LEGISLATION, AND TO CONSIDER WHETHER SOUND DOCTRINE DOES NOT IN TRUTH
REQUIRE US TO HOLD THAT ONE OR MORE OF THE CHANGES WHICH CONGRESS HAS
THUS SOUGHT TO MAKE CAN BE ACCOMPLISHED ONLY BY CONSTITUTIONAL
AMENDMENT. 

THE FOUR CASES REQUIRE DETERMINATION OF THE VALIDITY OF THE VOTING
RIGHTS ACT AMENDMENTS IN THREE ASPECTS.  IN NOS. 43, ORIG., AND 44,
ORIG., OREGON AND TEXAS HAVE SOUGHT TO ENJOIN THE ENFORCEMENT OF SEC.
302 OF THE ACT AS APPLIED TO LOWER THE VOTING AGE IN THOSE STATES FROM
21 TO 18.  /1/ 

IN NOS. 46, ORIG., AND 47, ORIG., THE UNITED STATES SEEKS A
DECLARATION OF THE VALIDITY OF THE ACT AND AN INJUNCTION REQUIRING
ARIZONA AND IDAHO TO CONFORM THEIR LAWS TO IT.  THE ACT WOULD LOWER THE
VOTING AGE IN EACH STATE FROM 21 TO 18.  IT WOULD SUSPEND UNTIL AUGUST
6, 1975, THE ARIZONA LITERACY TEST, WHICH REQUIRES THAT APPLICANTS FOR
REGISTRATION BE ABLE TO READ THE UNITED STATES CONSTITUTION IN ENGLISH
AND WRITE THEIR NAMES.  IT WOULD REQUIRE IDAHO TO MAKE SEVERAL CHANGES
IN ITS LAWS GOVERNING RESIDENCY, REGISTRATION,AND ABSENTEE VOTING IN
PRESIDENTIAL ELECTIONS.  AMONG THE MORE SUBSTANTIAL CHANGES, IDAHO'S
PRESENT 60-DAY STATE RESIDENCY REQUIREMENT WILL IN EFFECT BE LOWERED TO
30 DAYS; ITS 30-DAY COUNTY RESIDENCY REQUIREMENT FOR INTRASTATE
MIGRANTS WILL BE ABOLISHED; IDAHO WILL HAVE TO PERMIT VOTING BY
CITIZENS OF OTHER STATES FORMERLY DOMICILED IN IDAHO WHO EMIGRATED TOO
RECENTLY TO REGISTER IN THEIR NEW HOMES; AND IT MUST PERMIT ABSENTEE
REGISTRATION AND VOTING BY PERSONS WHO HAVE LIVED IN IDAHO FOR LESS
THAN SIX MONTHS.  THE RELEVANT PROVISIONS OF THE ACT AND OF THE
CONSTITUTIONS AND LAWS OF THE FOUR STATES ARE SET OUT IN AN APPENDIX TO
THIS OPINION. 

EACH OF THE STATES CONTESTS THE POWER OF CONGRESS TO ENACT THE
PROVISIONS OF THE ACT INVOLVED IN ITS SUIT.  /2/  THE GOVERNMENT PLACES
PRIMARY RELIANCE ON THE POWER OF CONGRESS UNDER SEC. 5 OF THE
FOURTEENTH AMENDMENT TO ENFORCE THE PROVISIONS OF THAT AMENDMENT BY
APPROPRIATE LEGISLATION.  FOR REASONS TO FOLLOW, I AM OF THE OPINION
THAT THE FOURTEENTH AMENDMENT WAS NEVER INTENDED TO RESTRICT THE
AUTHORITY OF THE STATES TO ALLOCATE THEIR POLITICAL POWER AS THEY SEE
FIT AND THEREFORE THAT IT DOES NOT AUTHORIZE CONGRESS TO SET VOTER
QUALIFICATIONS, IN EITHER STATE OR FEDERAL ELECTIONS.  I FIND NO OTHER
SOURCE OF CONGRESSIONAL POWER TO LOWER THE VOTING AGE AS FIXED BY STATE
LAWS, OR TO ALTER STATE LAWS ON RESIDENCY, REGISTRATION,AND ABSENTEE
VOTING, WITH RESPECT TO EITHER STATE OR FEDERAL ELECTIONS.  THE
SUSPENSION OF ARIZONA'S LITERACY REQUIREMENT, HOWEVER, CAN BE DEEMED AN
APPROPRIATE MEANS OF ENFORCING THE FIFTEENTH AMENDMENT, AND I WOULD
SUSTAIN IT ON THAT BASIS. 

        I 

IT IS FITTING TO BEGIN WITH A QUOTATION FROM ONE OF THE LEADING
MEMBERS OF THE 39TH CONGRESS, WHICH PROPOSED ?THE FOURTEENTH AMENDMENT
TO THE STATES IN 1866: 

     "EVERY CONSTITUTION EMBODIES THE PRINCIPLES OF ITS FRAMERS. 
IT

  IS A TRANSCRIPT OF THEIR MINDS.  IF ITS MEANING IN ANY PLACE IS

  OPEN TO DOUBT, OR IF WORDS ARE USED WHICH SEEM TO HAVE NO FIXED

  SIGNIFICATION, WE CANNOT ERR IF WE TURN TO THE FRAMERS; AND THEIR

AUTHORITY INCREASES IN PROPORTION TO THE EVIDENCE WHICH THEY HAVE

  LEFT ON THE QUESTION."  CONG. 1ST SESS., 677 (1866) (SEN.

  SUMNER). 

BELIEVING THIS VIEW TO BE UNDOUBTEDLY SOUND, I TURN TO THE
CIRCUMSTANCES IN WHICH THE FOURTEENTH AMENDMENT WAS ADOPTED FOR
ENLIGHTENMENT ON THE INTENDED REACH OF ITS PROVISIONS.  THIS, FOR ME,
NECESSARY UNDERTAKING HAS UNAVOIDABLY LED TO AN OPINION OF MORE THAN
ORDINARY LENGTH.  EXCEPT FOR THOSE WHO ARE WILLING TO CLOSE THEIR EYES
TO CONSTITUTIONAL HISTORY IN MAKING CONSTITUTIONAL INTERPRETATIONS OR
WHO READ SUCH HISTORY WITH A PRECONCEIVED DETERMINATION TO ATTAIN A
PARTICULAR CONSTITUTIONAL GOAL, I THINK THAT THE HISTORY OF THE
FOURTEENTH AMENDMENT MAKES IT CLEAR BEYOND ANY REASONABLE DOUBT THAT NO
PART OF THE LEGISLATION NOW UNDER REVIEW CAN BE UPHELD AS A LEGITIMATE
EXERCISE OF CONGRESSIONAL POWER UNDER THAT AMENDMENT. 

        A. HISTORICAL SETTING  /3/ 

THE POINT OF DEPARTURE FOR CONSIDERING THE PURPOSE AND EFFECT OF THE
FOURTEENTH AMENDMENT WITH RESPECT TO THE SUFFRAGE SHOULD BE, I THINK,
THE PRE-EXISTING PROVISIONS OF THE CONSTITUTION.  ARTICLE I, SEC. 2,
PROVIDED THAT IN DETERMINING THE NUMBER OF REPRESENTATIVES TO WHICH A
STATE WAS ENTITLED, ONLY THREE-FIFTHS OF THE SLAVE POPULATION SHOULD BE
COUNTED.  /4/  THE SECTION ALSO PROVIDED THAT THE QUALIFICATIONS OF
VOTERS FOR SUCH REPRESENTATIVES SHOULD BE THE SAME AS THOSE ESTABLISHED
BY THE STATES FOR ELECTORS OF THE MOST NUMEROUS BRANCH OF THEIR
RESPECTIVE LEGISLATURES.  ARTICLE I, SEC. 4, PROVIDED THAT SUBJECT TO
CONGRESSIONAL VETO, THE STATES MIGHT PRESCRIBE THE TIMES, PLACES, AND
MANNER OF HOLDING ELECTIONS FOR REPRESENTATIVES.  ARTICLE II, SEC. 1,
PROVIDED THAT THE STATES MIGHT DIRECT THE MANNER OF CHOOSING ELECTORS
FOR PRESIDENT AND VICE PRESIDENT, EXCEPT THAT CONGRESSS MIGHT FIX A
UNIFORM TIME FOR THE CHORE.  /5/  NOTHING IN THE ORIGINAL CONSTITUTION
CONTROLLED THE WAY STATES MIGHT ALLOCATE THEIR POLITICAL POWER EXCEPT
FOR THE GUARANTEE OF A REPUBLICAN FORM OF GOVERNMENT, WHICH APPEARS IN
ART. IV, SEC. 4.  /6/  NO RELEVANT CHANGES IN THE CONSTITUTIONAL
STRUCTURE WERE MADE UNTIL AFTER THE CIVIL WAR. 

AT THE CLOSE OF THAT WAR, THERE WERE SOME FOUR MILLION FREED SLAVES
IN THE SOUTH, NONE OF WHOM WERE PERMITTED TO VOTE.  THE WHITE
POPULATION OF THE CONFEDERACY HAD BEEN OVERWHELMINGLY SYMPATHETIC WITH
THE REBELLION.  SINCE THERE WAS ONLY A COMPARATIVE HANDFUL OF PERSONS
IN THESE STATES WHO WERE NEITHER FORMER SLAVES NOR CONFEDERATE
SYMPATHIZERS, THE PLACE WHERE THE POLITICAL POWER SHOULD BE LODGED WAS
A MOST VEXING QUESTION.  IN A SERIES OF PROCLAMATIONS IN THE SUMMER OF
1865, PRESIDENT ANDRES JOHNSON HAD LAID THE GROUNDWORK FOR THE STATES
TO BE CONTROLLED BY THE WHITE POPULATIONS WHICH HAD HELD POWER BEFORE
THE WAR, ELIMINATING ONLY THE LEADING REBELS AND THOSE UNWILLING TO
SING A LOYALTY OATH.  /7/  THE RADICALS, ON THE OTHER HAND, WERE
ARDENTLY IN FAVOR OF NEGRO SUFFRAGE AS ESSENTIAL TO PREVENT RESURGENT
REBELLION, REQUISITE TO PROTECT THE FREEDMEN, AND NECESSARY TO ENSURE
CONTINUED RADICAL CONTROL OF THE GOVERNMENT.  THIS ARDOR COOLED AS IT
RAN INTO NORTHERN RACIAL PREJUDICE.  AT THAT TIME, ONLY SIX STATES--
MAINE, NEW HAMPSHIRE, VERMONT, MASSACHUSETTS, RHODE ISLAND, AND NEW
YORK-- PERMITTED NEGROES TO VOTE, AND NEW YORK IMPOSED SPECIAL PROPERTY
AND RESIDENCY REQUIREMENTS ON NEGRO VOTERS.  /8/  IN REFERENDA LATE
THAT YEAR, ENFRANCHISING PROPOSALS WERE ROUNDLY BEATEN IN CONNECTICUT,
WISONSIN, MINNESOTA, THE TERRITORY OF COLORADO, AND THE DISTRICT OF
COLUMBIA.  GILLETTE, SUPRA, N. 3, AT 25-26.  SUCH POPULAR REBUFFS LED
THE RADICALS TO PULL IN THEIR HORNS AND HOPE FOR A PROTRACTED PROCESS
OF RECONSTRUCTION DURING WHICH THE NORTH COULD BE EDUCATED TO THE
ADVISABILITY OF NEGRO SUFFRAGE, AT LEAST FOR THE SOUTH.  IN THE
MEANTIME, OF COURSE, IT WOULD BE ESSENTIAL TO BAR SOUTHERN
REPRESENTATION IN CONGRESS LEST A COMBINAION OF SOUTHERNERS AND
DEMOCRATS OBTAIN CONTROL OF THE GOVERNMENT AND FRUSTRATE RADICAL
GOALS. 

THE PROBLEM OF CONGRESSIONAL REPRESENTATION WAS ACUTE.  WITH THE
FREEING OF THE SLAVES, THE THREE-FIFTHS COMPROMISE CEASED TO HAVE ANY
EFFECT.  WHILE PREDICTIONS OF THE PRECISE EFFECT OF THE CHANGE VARIED
WITH THE PERSON DOING THE CALCULATING, THE CONCENSUS WAS THAT THE SOUTH
WOULD BE ENTITLED TO AT LEAST 15 NEW MEMBERS OF CONGRESS, AND, OF
COURSE, A LIKE NUMBER OF NEW PRESIDENTIAL ELECTORS.  THE RADICALS HAD
OTHER RALLYING CRIES WHICH THEY KEPD BEFORE THE PUBLIC IN THE SUMMER OF
1865, BUT ONE AUTHOR GIVES THIS DESCRIPTION OF THE MOOD AS CONGRESS
CONVENED:  /9/ 

     "OF ALL THE MOVEMENTS INFLUENCING THE FOURTEENTH AMENDMENT

  WHICH DEVELOPED PRIOR TO THE FIRST SESSION OF THE THIRTY-NINTH

  CONGRESS, THAT FOR NEGRO SUFFRAGE WAS THE MOST OUTSTANDING.  THE

VOLUME OF PRIVATE AND PUBLIC COMMENT INDICATES THAT IT WAS VIEWED

  AS AN ISSUE OF PRIME IMPORTANCE.  THE CRY FOR A CHANGED BASIS OF

  REPRESENTATION WAS, IN REALITY, SUBSIDIARY TO THIS, AND WAS MEANT

  BY RADICALS TO SECURE IN ANOTHER WAY WHAT NEGRO SUFFRAGE MIGHT

  ACCOMPLISH FOR THEM:  REMOVAL OF THE DANGER OF DEMOCRATIC

  DOMINANCE AS A CONSEQUENCE OF SOUTHERN RESTORATION.  THE DANGER

  OF POSSIBLE REPUDIATION OF THE NATIONAL OBLIGATIONS, AND

  ASSUMPTION OF THE REBEL DEBT, WAS INVARIABLY PRESENTED TO SHOW

  THE NEED FOR NEGRO SUFFRAGE OR A NEW BASIS OF REPRESENTATION. 

SENTIMENT FOR DISQUALIFICATION OF EX-CONFEDERATES, THOUGH A

  NATURAL GROWTH, WELL SUITED SUCH PURPOSES.  THE MOVEMENT TO

  GUARANTEE CIVIL RIGHTS, SPONSORED ORIGINALLY BY THE MORE

  CONSERVATIVE REPUBLICANS, RECEIVED EMPHASIS FROM RADICALS ONLY

  WHEN STATE ELECTIONS INDICATED THAT SUFFRAGE WOULD NOT SERVE AS A

  PARTY PLATFORM." 

WHEN CONGRESS MET, THE RADICALS, LED BY THADDEUS STEVENS, WERE
SUCCESSFUL IN OBTAINING AGREEMENT FOR A JOINT COMMITTEE ON
RECONSTRUCTION, COMPOSED OF 15 MEMBERS, TO "INQUIRE INTO THE CONDITION
OF THE STATES WHICH FORMED THE SO-CALLED CONFEDERATE STATES OF AMERICA,
AND REPORT WHETHER THEY, OR ANY OF THEM, ARE ENTITLED TO BE REPRESENTED
IN EITHER HOUSE OF CONGRESS.  . . . "  CONG. GLOBE, 39TH CONG., 1ST
SESS., 30, 46 (1865) (HEREAFTER GLOBE). 

ALL PAPERS RELATING TO REPRESENTATION OF THE SOUTHERN STATES WERE TO
BE REFERRED TO THE COMMITTEE OF FIFTEEN WITHOUT DEBATE.  THE RESULT,
WHICH MANY HAD NOT FORESEEN, WAS TO ASSERT CONGRESSSIONAL CONTROL OVER
RECONSTRUCTION AND AT THE SAME TIME TO PUT THE CONGRESSIONAL POWER IN
THE HANDS OF A LARGELY RADICAL SECRET COMMITTEE. 

THE JOINT COMMITTEE BEGAN WORK WITH THE BEGINNING OF 1866, AND IN
DUE COURSE, REPORTED A JOINT RESOLUTION, H.R. 51, TO AMEND THE
CONSTITUTION.  THE PROPOSAL WOULD HAVE BASED REPRESENTATION AND DIRECT
TAXES ON POPULATION, WITH A PROVISO THAT 

"WHENEVER THE ELECTIVE FRANCHISE SHALL BE DENIED OR ABRIDGED IN ANY
STATE ON ACCOUNT OF RACE OR COLOR, ALL PERSONS OF SUCH RACE OR COLOR
SHALL BE EXCLUDED FROM THE BASIS OF REPRESENTATION."  GLOBE 351.  THE
RESULT, IF THE SOUTHERN STATES DID NOT PROVIDE FOR NEGRO SUFFRAGE,
WOULD BE A DECREASE IN SOUTHERN REPRESENTATION IN CONGRESS AND THE
ELECTORAL COLLEGE BY SOME 24 SEATS FROM THEIR PRE-WAR POSITION INSTEAD
OF AN INCREASE OF 15.  THE HOUSE, ALTHOUGH SOMEWHAT BALKY, APPROVED THE
MEASURE AFTER LENGTHY DEBATE.  GLOBE 538.  THE SENATE PROVED MORE
INTRACTABLE, AN ODD COMBINATION OF DEMOCRATS, MODERATE REPUBLICANS, AND
EXTREME RADICALS COMBINED TO DEFEAT THE MEASURE, WITH THE RADICALS
BASING THEIR OPPOSITION LARGELY ON THE FEAR THAT THE PROVISO WOULD BE
READ TO AUTHORIZE RACIAL VOTER QUALIFICATIONS AND THUS PREVENT CONGRESS
FROM ENFRANCHISING THE FREEDMEN OTHER POWERS ASSERTEDLY GRANTED BY
OTHER CLAUSES OF THE CONSTITUTION.  SEE, E.G., GLOBE 673-687 (SEN.
SUMNER). 

AT ABOUT THIS SAME TIME THE CIVIL RIGHTS BILL AND THE SECOND
FREEDMEN'S BUREAU BILL WERE BEING DEBATED.  BOTH BILLS PROVIDED A LIST
OF RIGHTS SECURED, NOT INCLUDING VOTING.  /10/  SENATOR TRUMBULL, WHO
REPORTED THE CIVIL RIGHTS BILL ON BEHALF OF THE SENATE JUDICIARY
COMMITTEE, STATED:  I DO NOT WANT TO BRING UP THE QUESTION OF NEGRO
SUFFRAGE IN THE BILL."  GLOBE 606.  HIS HOUSE COUNTERPART EXHIBITED THE
SAME RELUCTANCE.  GLOBE 1162 (CONG. WILSON OF IOWAT).  DESPITE
CONSIDERABLE UNCERTAINTY AS TO THE CONSTITUTIONALITY OF THE MEASURES,
BOTH ULTIMATELY PASSED.  IN THE MIDST OF THE SENATE DEBATES ON THE
BASIS OF REPRESENTATION, PRESIDENT JOHNSON VETOED THE FREEDMEN'S BUREAU
BILL, PRIMARILY ON CONSTITUTIONAL GROUNDS.  THIS VETO, WHICH WAS
NARROWLY SUSTAINED, WAS FOLLOWED SHORTLY BY THE PRESIDENT'S BITTER
ATTACK ON RADICAL RECONSTRUCTION IN HIS WASHINGTON'S BIRTHDAY SPEECH. 
THESE TWO ACTIONS, WHICH WERE FOLLOWED A MONTH LATER BY THE VETO OF THE
CIVIL RIGHTS BILL, REMOVED ANY LINGERING HOPES AMONG THE RADICALS THAT
JOHNSON WOULD SUPPORT THEM IN A THOROUGHGOING PLAN OF RECONSTRUCTION. 
BY THE SAME TOKEN THEY INCREASED THE RADICALS' NEED FOR AN ARTICULATED
PLAN OF THEIR OWN TO BE PUT BEFORE THE COUNTRY IN THE UPCOMING
ELECTIONS AS AN ALTERNATIVE TO THE COURSE THE PRESIDENT WAS TAKING. 

THE SECOND MAJOR PRODUCT OF THE RECONSTRUCTION COMMITTEE, BEFORE THE
RESOLUTION WHICH BECAME THE FOURTEENTH AMENDMENT, WAS A PROPOSAL TO ADD
AN EQUAL RIGHTS PROVISION TO THE CONSTITUTION.  THIS MEASURE, H.R. 63,
WHICH FORESHADOWED SEC. 1 OF THE FOURTEENTH AMENDMENT, READ AS
FOLLOWS: 

     "THE CONGRESS SHALL HAVE POWER TO MAKE ALL LAWS WHICH SHALL BE

  NECESSARY AND PROPER TO SECURE TO THE CITIZENS OF EACH STATE ALL

  PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES, AND

 TO ALL PERSONS IN THE SEVERAL STATES EQUAL PROTECTION IN THE

  RIGHTS OF LIFE, LIBERTY, AND PROPERTY."  GLOBE 1034. 

IT WAS REPORTED BY CONGRESSMAN BINGHAM OF OHIO, WHO LATER OPPOSED
THE CIVIL RIGHTS BILL BECAUSE HE BELIEVED IT UNCONSTITUTIONAL.  GLOBE
1292-1293.  THE AMENDMENT IMMEDIATELY RAN INTO SERIOUS OPPOSITION IN
THE HOUSE AND THE SUBJECT WAS DROPPED.  /11/ 

SUCH WAS THE BACKGROUND OF THE FOURTEENTH AMENDMENT.  CONGRESS, AT
LOGGERHEADS WITH THE PRESIDENT OVER RECONSTRUCTION, HAD NOT COME UP
WITH A PLAN OF ITS OWN AFTER SIX MONTHS OF DELIBERATIONS; BOTH FRIENDS
AND FOES PRODDED IT TO DEVELOP AN ALTERNATIVE.  THE RECONSTRUCTION
COMMITTEE HAD BEEN UNABLE TO PRODUCE ANYTHING WHICH COULD EVEN GET
THROUGH CONGRESS, MUCH LESS OBTAIN THE ADHERENCE OF THREE-FOURTHS OF
THE STATES.  THE RADICALS, COMMITTED TO NEGRO SUFFRAGE, WERE CONFRONTED
WITH WIDESPREAD PUBLIC OPPOSITION TO THAT GOAL AND THE NECESSITY FOR A
RECONSTRUCTION PLAN THAT COULD DO SERVICE AS A PARTY PLATFORM IN THE
ELECTIONS THAT FALL.  THE LANGUAGE OF THE FOURTEENTH AMENDMENT MUST BE
READ WITH AWARENESS THAT IT WAS DESIGNED IN RESPONSE TO THIS
SITUATION. 

        B. THE LANGUAGE OF THE AMENDMENT AND RECONSTRUCTION

           MEASURES 

READ AS FOLLOWS:  /12/ 

     "SEC; 1.  NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL

  ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED

  STATES; NOR SHALL 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. 

     "SEC. 2.  REPRESENTATIVES SHALL BE APPORTIONED AMONG THE

  SEVERAL STATES WHICH MAY BE INCLUDED WITHIN THIS UNION, ACCORDING

TO THEIR RESPECTIVE NUMBERS, COUNTING THE WHOLE NUMBER OF PERSONS

  IN EACH STATE, EXCLUDING INDIANS NOT TAXED.  BUT WHENEVER, IN ANY

  STATE, THE ELECTIVE FRANCHISE SHALL BE DENIED TO ANY PORTION OF

  ITS MALE CITIZENS NOT LESS THAN TWENTY-ONE YEARS OF AGE, OR IN

  ANY WAY ABRIDGED EXCEPT FOR PARTICIPATION IN REBELLION OR OTHER

  CRIME, THE BASIS OF REPRESENTATION IN SUCH STATE SHALL BE REDUCED

  IN THE PROPORTION WHICH THE NUMBER OF SUCH MALE CITIZENS SHALL

  BEAR TO THE WHOLE NUMBER OF MALE CITIZENS NOT LESS THAN

  TWENTY-ONE YEARS OF AGE."  GLOBE 2286. 

IN THE HISTORICAL CONTEXT, NO ONE COULD HAVE UNDERSTOOD THIS
LANGUAGE AS ANYTHING OTHER THAN AN ABANDONMENT OF THE PRINCIPLE OF
NEGRO SUFFRAGE, FOR WHICH THE RADICALS HAD BEEN SO EAGER.  BY THE SAME
TOKEN, THE LANGUAGE COULD HARDLY HAVE BEEN UNDERSTOOD AS AFFECTING THE
PROVISIONS OF THE CONSTITUTION PLACING VOTING QUALIFICATIONS IN THE
HANDS OF THE STATES.  SECTION 1 MUST HAVE BEEN SEEN AS LITTLE MORE THAN
A CONSTITUTIONALIZATION OF THE 1866 CIVIL RIGHTS ACT, CONCEDEDLY ONE OF
THE PRIMARY GOALS OF THAT PORTION OF THE AMENDMENT.  /13/ 

WHILE THESE CONCLUSIONS MAY, I THINK, BE CONFIDENTLY ASSERTED, IT IS
NOT SO EASY TO EXPLAIN JUST HOW CONTEMPORARY OBSERVERS WOULD HAVE
CONSTRUED THE THREE CLAUSES OF SEC. 1 TO REACH THIS RESULT.  /14/  NO
DOUBT IN THE CASE OF MANY CONGRESSMEN IT SIMPLY NEVER OCCURRED TO THEM
THAT THE STATES' LONGSTANDING PLENARY CONTROL OVER VOTER QUALIFICATIONS
WOULD BE AFFECTED WITHOUT EXPLICIT LANGUAGE TO THAT EFFECT.  AND SINCE
NO SPEAKER DURING THE DEBATES ON THE FOURTEENTH AMENDMENT PURSUED THE
CONTENTION THAT SEC. 1 WOULD BE CONSTRUED TO INCLUDE THE FRANCHISE,
THOSE WHO TOOK THE OPPOSITE VIEW RARELY EXPLAINED HOW THEY ARRIVED AT
THEIR CONCLUSIONS. 

IN ATTEMPTING TO UNRAVEL WHAT WAS SELDOM ARTICULATED, THE
APPROPRIATE STARTING POINT IS THE FACT THAT THE FRAMERS OF THE
AMENDMENT EXPECTED THE MOST SIGNIFICANT PORTION OF SEC. 1 TO BE THE
CLAUSE PROHIBITING STATE LAWS "WHICH SHALL ABRIDGE THE PRIVILEGES OR
IMMUNITIES OF CITIZENS OF THE UNITED STATES."  THESE PRIVILEGES WERE NO
DOUBT UNDERSTOOD TO INCLUDE THE ONES SET OUT IN THE FIRST SECTION OF
THE CIVIL RIGHTS ACT.  TO BE PROHIBITED BY LAW FROM ENJOYING THESE
RIGHTS WOULD HARDLY BE CONSISTENT WITH FULL MEMBERSHIP IN A CIVIL
SOCIETY. 

THE SAME IS NOT NECESSARILY TRUE WITH RESPECT TO PROHIBITIONS ON
PARTICIPATION IN THE POLITICAL PROCESS.  MANY MEMBERS OF CONGRESS
ACCEPTED THE JURISPRUDENCE OF THE DAY, IN WHICH THE RIGHTS OF MAN FELL
INTO THREE CATEGORIES:  NATURAL, CIVIL, AND POLITICAL.  THE PRIVILEGES
OF CITIZENS, BEING "CIVIL" RIGHTS, WERE DISTINCT FROM THE RIGHTS
ARISING FROM GOVERNMENTAL ORGANIZATION, WHICH WERE POLITICAL IN
CHARACTER.  /15/ OTHERS NO DOUBT RELIED ON THE EXPERIENCE UNDER THE
SIMILAR LANGUAGE OF ART. IV, SEC. 2, WHICH HAD NEVER BEEN HELD TO
GUARANTEE THE RIGHT TO VOTE.  THE REMARKS OF SENATOR HOWARD OF
MICHIGAN, WHO AS SPOKESMAN FOR THE JOINT COMMITTEE EXPLAINED IN GREATER
DETAIL THAN MOST WHY THE AMENDMENT DID NOT REACH THE SUFFRAGE, CONTAIN
SOMETHING OF EACH VIEW.  SEE GLOBE 2766, QUOTED INFRA, AT 187; NN. 56
AND 57, INFRA; CF. BLAKE V. MCCLUNG, 172 U.S. 239, 256 (1898)
(DICTUM). 

SINCE THE PRIVILEGES AND IMMUNITIES CLAUSE WAS EXPECTED TO BE THE
PRIMARY SOURCE OF SUBSTANTIVE PROTECTION, THE EQUAL PROTECTION AND DUE
PROCESS CLAUSES WERE RELEGATED TO A SECONDARY ROLE, AS THE DEBATES AND
OTHER CONTEMPORARY MATERIALS MAKE CLEAR.  /16/  THOSE CLAUSES, WHICH
APPEAR ON THEIR FACE TO CORRESPOND WITH THE LATTER PORTION OF SEC. 1 OF
THE CIVIL RIGHTS ACT, SEE N. 13, SUPRA, AND TO BE PRIMARILY CONCERNED
WITH PERSON AND PROPERTY, WOULD NOT HAVE BEEN EXPECTED TO ENFRANCHISE
THE FREEDMEN IF THE PRIVILEGES AND IMMUNITIES CLAUSE DID NOT. 

OTHER MEMBERS OF CONGRESS NO DOUBT SAW SEC. 2 OF THE PROPOSED
AMENDMENT AS THE COMMITTEE'S RESOLUTION OF THE RELATED PROBLEMS OF
SUFFRAGE AND REPRESENTATION.  SINCE THAT SECTION DID NOT PROVIDE FOR
ENFRANCHISEMENT, BUT SIMPLY REDUCED REPRESENTATION FOR
DISFRANCHISEMENT, ANY DOUBTS ABOUT THE EFFECT OF THE BROAD LANGUAGE OF
SEC. 1 WERE REMOVED.  CONGRESSMAN BINGHAM, WHO WAS PRIMARILY
RESPONSIBLE FOR THE LANGUAGE OF SEC. 1, STATED THIS VIEW.  GLOBE 2542,
QUOTED INFRA, AT 185.  FINALLY, CHARACTERIZATION OF THE AMENDMENT BY
SUCH FIGURES AS STEVENS AND BINGHAM IN THE HOUSE AND HOWARD IN THE
SENATE, NOT CONTESTED BY THE DEMOCRATS EXCEPT IN PASSING REMARKS, WAS
NO DOUBT SIMPLY ACCEPTED BY MANY MEMBERS OF CONGRESS; THEY, REPEATING
IT, GAVE FURTHER FORCE TO THE INTERPRETATION, WITH THE RESULT THAT, AS
WILL APPEAR BELOW, NOT ONE SPEAKER IN THE DEBATES ON THE FOURTEENTH
AMENDMENT UNAMBIGUOUSLY STATED THAT IT WOULD AFFECT STATE VOTER
QUALIFICATIONS, AND ONLY THREE, ALL OPPONENTS OF THE MEASURE, CAN
FAIRLY BE CHARACTERIZED AS RAISING THE POSSIBILITY.  /17/  FURTHER
EVIDENCE OF THIS ORIGINAL UNDERSTANDING CAN BE FOUND IN LATER EVENTS. 

THE 39TH CONGRESS, WHOCH PROPOSED THE FOURTEENTH AMENDMENT, ALSO
ENACTED THE FIRST RECONSTRUCTION ACT, C. 153, 14 STAT. 428 (1867). 
THIS ACT REQUIRED, AS A CONDITION PRECEDENT TO READMISSION OF THE
SOUTHERN STATES, THAT THEY ADOPT CONSTITUTIONS PROVIDING THAT THE
ELECTIVE FRANCHISE SHOULD BE ENJOYED BY ALL MALE CITIZENS OVER THE AGE
OF 21 WHO HAD BEEN RESIDENTS FOR MORE THAN ONE YEAR AND WERE NOT
DISFRANCHISED FOR TREASON OR COMMON-LAW FELONY; EVEN SO, NO STATE WOULD
BE READMITTED UNTIL A LEGISLATURE ELECTED UNDER THE NEW CONSTITUTION
HAD RATIFIED THE PROPOSED FOURTEENTH AMENDMENT AND THAT AMENDMENT HAD
BECOME PART OF THE CONSTITUTION. 

THE NEXT DEVELOPMENT CAME WHEN THE RATIFICATION DRIVE IN THE NORTH
STALLED.  AFTER A YEAR HAD PASSED DURING WHICH ONLY ONE NORTHERN STATE
HAD RATIFIED THE PROPOSED FOURTEENTH AMENDMENT, ARKANSAS WAS READMITTED
TO THE UNION BY THE ACT OF JUNE 22, 1868, 15 STAT. 72.  THIS
READMISSION WAS BASED ON THE "FUNDAMENTAL CONDITION" THAT THE STATE
CONSTITUTION SHOULD NOT BE AMENDED TO RESTRICT THE FRANCHISE, EXCEPT
WITH REFERENCE TO RESIDENCY REQUIREMENTS.  THREE DAYS LATER THE ACT OF
JUNE 25, 1868, 15 STAT. 73, HELD OUT A PROMISE OF SIMILAR TREATMENT TO
NORTH CAROLINA, SOUTH CAROLINA, LOUISIANA, GEORGIA, ALABAMA, AND
FLORIDA IF THEY WOULD RATIFY THE FOURTEENTH AMENDMENT.  BY HAPPY
COINCIDENCE, THE ASSENT OF THOSE SIX STATES WAS JUST SUFFICIENT TO
COMPLETE THE RATIFICATION PROCESS.  IT CAN HARDLY BE SUGGESTED,
THEREFORE, THAT THE "FUNDAMENTAL CONDITION" WAS EXACTED FROM THEM AS A
MEASURE OF CAUTION LEST THE FOURTEENTH AMENDMENT FAIL OF RATIFICATION. 

THE 40TH CONGRESS, NOT CONTENT WITH ENFRANCHISEMENT IN THE SOUTH,
PROPOSED THE FIFTEENTH AMENDMENT TO EXTEND THE SUFFRAGE TO NORTHERN
NEGROES.  SEE GILLETTE, SUPRA, N. 3, AT 46.  THIS FACT ALONE IS
EVIDENCE THAT THEY DID NOT UNDERSTAND THE FOURTEENTH AMENDMENT TO HAVE
ACCOMPLISHED SUCH A RESULT.  LESS WELL KNOWN IS THE FACT THAT THE 40TH
CONGRESS CONSIDERED AND VERY NERALY ADOPTED A PROPOSED AMENDMENT WHICH
WOULD HAVE EXPRESSLY PROHIBITED NOT ONLY DISCRIMINATORY VOTER
QUALIFICATIONS BUT DISCRIMINATORY QUALIFICATIONS FOR OFFICE AS WELL. 
EACH HOUSE PASSED SUCH A MEASURE BY THE REQUIRED TWO-THIRDS MARGIN. 
CONG. GLOBE, 40TH CONG., 3D SESS., 1318, 1428 (1869).  A CONFERENCE
COMMITTEE, COMPOSED OF SENATORS STEWART AND CONKLING AND
REPRESENTATIVES BOUTWELL, BINGHAM, AND LOGAN, STRUCK OUT THE
OFFICEHOLDING PROVISION, ID., AT 1563, 1593, AND WITH INAUGURATION DAY
ONLY A WEEK AWAY, BOTH HOUSES ACCEPTED THE CONFERENCE REPORT.  ID., AT
1564, 1641.  SEE GENERALLY GILLETTE 58-77.  WHILE THE REASONS FOR THESE
ACTIONS ARE UNCLEAR, IT IS UNLIKELY THAT THEY WERE PROVOKED BY THE IDEA
THAT THE FOURTEENTH AMENDMENT COVERED THE FIELD; SUCH A RATIONALE
SEEMINGLY WOULD HAVE MADE THE ENFRANCHISING PROVISION ITSELF
UNNECESSARY. 

THE 41ST CONGRESS READMITTED THE REMAINING THREE STATES OF THE
CONFEDERACY.  THE ADMITTING ACT IN EACH CASE RECITED GOOD-FAITH
RATIFICATION OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS, AND IMPOSED
THE FUNDAMENTAL CONDITIONS THAT THE STATES SHOULD NOT RESTRICT THE
ELECTIVE FRANCHISE /18/  AND "THAT IT SHALL NEVER BE LAWFUL FOR THE
SAID TATE TO DEPRIVE ANY CITIZEN OF THE UNITED STATES, ON ACCOUNT OF
HIS RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE, OF THE RIGHT TO
HOLD OFFICE UNDER THE CONSTITUTION AND LAWS OF SAID STATE."  ACT OF
JAN. 26, 1870, C. 10, 16 STAT. 62, 63 (VIRGINIA); ACT OF FEB. 23, 1870,
C. 19, 16 STAT. 67, 68 (MISSISSIPPI); ACT OF MAR. 30, 1870, C. 39, 16
STAT. 80, 81 (TEXAS). 

THESE MATERIALS DEMONSTRATE NOT ONLY THAT SEC. 1 OF THE FOURTEENTH
AMENDMENT IS SUSCEPTIBLE OF AN INTERPRETATION THAT IT DOES NOT REACH
SUFFRAGE QUALIFICATIONS, BUT THAT THIS IS THE INTERPRETATION GIVEN BY
THE IMMEDIATELY SUCCEEDING CONGRESSES.  SUCH AN INTERPRETATION IS THE
MOST REASONABLE READING OF THE SECTION IN VIEW OF THE BACKGROUND
AGAINST WHICH IT WAS PROPOSED AND ADOPTED, PARTICULARLY THE DOUBTS
ABOUT THE CONSTITUTIONALITY OF THE CIVIL RIGHTS ACT, THE PREJUDICE IN
THE NORTH AGAINST ANY RECOGNITION OF THE PRINCIPLE OF NEGRO SUFFRAGE,
AND THE BASIC CONSTITUTIONAL STRUCTURE OF LEAVING SUFFRAGE
QUALIFICATIONS WITH THE STATES.  /19/  IF ANY FURTHER CLARIFICATION
WERE NEEDED, ONE WOULD HAVE THOUGHT IT PROVIDED BY THE SECOND SECTION
OF THE SAME AMENDMENT, WHICH SPECIFICALLY CONTEMPLATED THAT THE RIGHT
TO VOTE WOULD BE DENIED OR ABRIDGED BY THE STATES ON RACIAL OR OTHER
GROUNDS.  AS A UNANIMOUS COURT ONCE ASKED, "WHY THIS, IF IT WAS NOT IN
THE POWER OF THE (STATE) LEGISLATURE TO DENY THE RIGHT OF SUFFRAGE TO
SOME MALE INHABITANTS?"  MINOR V. HAPPERSETT, 21 WALL.  162, 174
(1875). 

THE GOVERNMENT SUGGESTS THAT THE LIST OF PROTECTED QUALIFICATIONS IN
SEC. 2 IS "NO MORE THAN DESCRIPTIVE OF VOTING LAWS AS THEY THEN
STOOD."  BRIEF FOR THE UNITED STATES, NOS. 46, ORIG., AND 47, ORIG.,
75.  THIS IS WHOLLY INACCURATE.  ASIDE FROM RACIAL RESTRICTIONS, ALL
STATES HAD RESIDENCY REQUIREMENTS AND MANY HAD LITERACY, PROPERTY, OR
TAXATION QUALIFICATIONS.  ON THE OTHER HAND, SEVERAL OF THE WESTERN
STATES PERMITTED ALIENS TO VOTE IF THEY HAD SATISFIED CERTAIN RESIDENCY
REQUIREMENTS AND HAD DECLARED THEIR INTENTION TO BECOME CITIZENS.  /20/
IT HARDLY SEEMS NECESSARY TO OBSERVE THAT THE POLITICIANS WHO FRAMED
THE FOURTEENTH AMENDMENT WERE FAMILIAR WITH THE MAKEUP OF THE
ELECTORATE.  IN ANY EVENT, THE CONGRESSIONAL DEBATES CONTAIN SUCH PROOF
IN AMPLE MEASURE.  /21/ 

ASSUMING, THEN, THAT SEC. 2 REPRESENTS A DELIBERATE SELECTION OF THE
VOTING QUALIFICATIONS TO BE PENALIZED, WHAT IS THE POINT OF IT?  THE
GOVERNMENT NOTES THAT "IT WAS INTENDED-- ALTHOUGH IT HAS NEVER BEEN
USED-- TO PROVIDE A REMEDY AGAINST EXCLUSION OF THE NEWLY FREED SLAVES
FROM THE VOTE."  BRIEF FOR THE DEFENDANT, NOS. 43, ORIG., AND 44,
ORIG., 20.  UNDOUBTEDLY THIS WAS THE PRIMARY PURPOSE.  BUT THE FRAMERS
OF THE AMENDMENT, WITH THEIR ATTENTION THUS FOCUSED ON RACIAL VOTING
QUALIFICATIONS, COULD HARDLY HAVE BEEN UNAWARE OF SEC. 1.  IF THEY
UNDERSTOOD THAT SECTION TO FORBID SUCH QUALIFICATIONS, THE SIMPLE MEANS
OF PENALIZING THIS CONDUCT WOULD HAVE BEEN TO IMPOSE A REDUCTION OF
REPRESENTATION FOR VOTING DISCRIMINATION IN VIOLATION OF SEC. 1.  THEIR
ADOPTION INSTEAD OF THE AWKWARD PHRASING OF SEC. 2 IS THEREFORE
SIGNIFICANT.     TO BE SURE, ONE MIGHT ARGUE THAT SEC. 2 IS SIMPLY A
RHETORICAL FLOURISH, AND THAT THE QUALIFICATIONS LISTED THERE ARE
MERELY THE ONES WHICH THE FRAMERS DEEMED TO BE CONSISTENT WITH THE
ALLEGED PROHIBITION OF SEC. 1.  THIS ARGUMENT IS NOT ONLY UNREASONABLE
ON ITS FACE AND UNTENABLE IS NOT ONLY UNREASONABLE ON ITS FACE AND
UNTENABLE IN LIGHT OF THE HISTORICAL RECORD; IT IS FATAL TO THE
VALIDITY OF THE REDUCTION OF THE VOTING AGE IN SEC. 302 OF THE ACT
BEFORE US.     THE ONLY SENSIBLE EXPLANATION OF SEC. 2, THEREFORE, IS
THAT THE RACIAL VOTER QUALIFICATIONS IT WAS DESIGNED TO PENALIZE WERE
UNDERSTOOD TO BE PERMITTED BY SEC. 1 OF THE FOURTEENTH AMENDMENT.  THE
AMENDMENT WAS A HALFWAY MEASURE, ADOPTED TO DEPRIVE THE SOUTH OF
REPRESENTATION UNTIL IT SHOULD ENFRANCHISE THE FREEDMEN, BUT TO HAVE NO
PRACTICAL EFFECT IN THE NORTH.  IT WAS POLITICALLY ACCEPTABLE PRECISELY
BECAUSE OF ITS REGIONAL CONSEQUENCES AND ITS AVOIDANCE OF AN EXPLICIT
RECOGNITION OF THE PRINCIPLE OF NEGRO SUFFRAGE.  AS MY BROTHER BLACK
STATES:  "IT CANNOT BE SUCCESSFULLY ARGUED THAT THE FOURTEENTH
AMENDMENT WAS INTENDED TO STRIP THE STATES OF THEIR POWER, CAREFULLY
PRESERVED IN THE ORIGINAL CONSTITUTION, TO GOVERN THEMSELVES."  ANTE,
AT 127.  THE DETAILED HISTORICAL MATERIALS MAKE THIS UNMISTAKABLY
CLEAR. 

        C. THE JOINT COMMITTEE 

THE FIRST PLACE TO LOOK FOR THE UNDERSTANDING OF THE FRAMERS OF THE
FOURTEENTH AMENDMENT IS THE JOURNAL OF THE JOINT COMMITTEE ON
RECONSTRUCTION.  /22/  THE EXACT SEQUENCE OF THE ACTIONS OF THIS
COMMITTEE PRESUMABLY HAD LITTLE OR NO EFFECT ON THE MEMBERS OF CONGRESS
WHO WERE NOT ON THE COMMITTEE, FOR THE COMMITTEE ATTEMPTED TO KEEP ITS
DELIBERATIONS SECRET, /23/  AND THE JOURNAL ITSELF WAS LOST FOR NEARLY
20 YEARS.  /24/  NEVERTHELESS THE JOURNAL, ALTHOUGH ONLY A RECORD OF
PROPOSALS AND VOTES, ILLUSTRATES THE THOUGHTS OF THOSE LEADING FIGURES
OF CONGRESS WHO WERE MEMBERS AND PARTICIPATED IN THE DRAFTING OF THE
AMENDMENT. 

TWO FEATURES EMERGE FROM SUCH A REVIEW WITH STARTLING CLARITY. 
FIRST, THE COMMITTEE REGULARLY REJECTED EXPLICITLY ENFRANCHISING
PROPOSALS IN FAVOR OF PLANS WHICH WOULD POSTPONE ENFRANCHISEMENT, LEAVE
IT TO CONGRESSIONAL DISCRETION, OR ABANDON IT ALTOGETHER.  SECOND, THE
ABANDONMENT OF NEGRO SUFFRAGE AS A GOAL EXACTLY CORRESPONDED WITH THE
ADOPTION OF PROVISIONS TO REDUCE REPRESENTATION FOR DISCRIMINATORY
RESTRICTIONS ON THE BALLOT. 

THIS CORRESPONDENCE WAS PRESENT FROM THE START.  FIVE PLANS WERE
PROPOSED TO DEAL WITH REPRESENTATION.  ONE WOULD HAVE PROHIBITED RACIAL
QUALIFICATIONS FOR VOTERS AND BASED REPRESENTATION ON THE WHOLE NUMBER
OF CITIZENS IN THE STATE; THE OTHER FOUR PROPOSALS CONTAINED NO
ENFRANCHISING PROVISION BUT IN VARIOUS WAYS WOULD HAVE REDUCED
REPRESENTATION FOR STATES WHERE THE VOTE WAS RACIALLY RESTRICTED. 
KENDRICK 41-44.  A SUBCOMMITTEE REDUCED THE FIVE BROPOSALS TO TWO, ONE
PROHIBITING DISCRIMINATION AND THE OTHER REDUCING REPRESENTATION WHERE
IT WAS PRESENT.  ON STEVENS' MOTION THE LATTER ALTERNATIVE WAS ACCEPTED
BY A VOTE OF 11 TO 3, KENDRICK 51; WITH MINOR CHANGES IT WAS
SUBSEQUENTLY REPORTED AS H.R. 51. 

THE SUBCOMMITTEE ALSO PROPOSED THAT WHICHEVER PROVISION ON THE BASIS
OF REPRESENTATION WAS ADOPTED, THE CONGRESS SHOULD BE EMPOWERED TO
LEGISLATE TO SECURE ALL CITIZENS "THE SAME POLITICAL RIGHTS AND
PRIVILEGES" AND ALSO "EQUAL PROTECTION IN THE ENJOYMENT OF LIFE,
LIBERTY AND PROPERTY."  KENDRICK 51.  AFTER THE COMMITTEE REPORTED H.R.
51, IT TURNED TO CONSIDERATION OF THIS PROPOSAL.  AT A MEETING ATTENDED
BY ONLY 10 MEMBERS, A MOTION TO STRIKE OUT THE CLAUSE AUTHORIZING
CONGRESS TO LEGISLATE FOR EQUAL POLITICAL RIGHTS AND PRIVILEGES LOST BY
A VOTE OF SIX TO FOUR.  KENDRICK 57.  AT A SUBSEQUENT MEETING, HOWEVER,
BINGHAM HAD THE SUBCOMMITTEE PROPOSAL REPLACED WITH ANOTHER WHICH DID
NOT MENTION POLITICAL RIGHTS AND PRIVILEGES, BUT WAS OTHERWISE QUITE
SIMILAR.  KENDRICK 61; SEE THE OPINION OF MR. JUSTICE BRENNAN, MR.
JUSTICE WHITE, AND MR. JUSTICE MARSHALL, POST, AT 258-259, FOR THE TEXT
OF THE TWO PROVISIONS.  THE COMMITTEE REPORTED THE SUBSTITUTE AS H.R.
63.  IN THE HOUSE SO MUCH CONCERN WAS EXPRESSED OVER THE CENTRALIZATION
OF POWER THE AMENDMENT WOULD WORK-- A FEW SAID IT WOULD EVEN AUTHORIZE
CONGRESS TO REGULATE THE SUFFRAGE-- THAT THE MATTER WAS DROPPED.  POST,
AT 260. 

THE FOURTEENTH AMENDMENT HAD AS ITS MOST DIRECT ANTECEDENT A
PROPOSAL DRAFTED BY ROBERT DALE OWEN, WHO WAS NOT A MEMBER OF CONGRESS,
AND PRESENTED TO THE JOINT COMMITTEE BY STEVENS.  /25/  ORIGINALLY THE
PLAN PROVIDED FOR MANDATORY ENFRANCHISEMENT IN 1876 AND FOR REDUCTION
OF REPRESENTATION UNTIL THAT DATE.  KENDRICK 82-84.  HOWEVER, STEVENS
WAS PRESSURED BY VARIOUS CONGRESSIONAL DELEGATIONS WHO WANTED NOTHING
TO DO WITH NEGRO SUFFRAGE, EVEN AT A REMOVE OF 10 YEARS.  /26/  HE
THEREFORE SUCCESSFULLY MOVED TO STRIKE OUT THE ENFRANCHISING PROVISION
AND CORRESPONDINGLY TO ABOLISH THE 20-YEAR LIMITATION ON REDUCTION OF
REPRESENTATION FOR RACIAL DISCRIMINATION.  THE MOTION CARRIED BY A VOTE
OF 12 TO 2.  KENDRICK 101. 

BINGHAM WAS THEN SUCCESSFUL IN REPLACING SEC. 1 OF OWEN'S PROPOSAL,
WHICH READ: 

"NO DISCRIMINATION SHALL BE MADE BY ANY STATE, OR BY THE UNITED
STATES, AS TO THE CIVIL RIGHTS OF PERSONS, BECAUSE OF RACE, COLOR, OR
PREVIOUS CONDITION OF SERVITUDE" WITH THE FOLLOWING NOW-FAMILIAR
LANGUAGE: 

"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."  KENDRICK 106.  THE SUMMARY STYLE OF THE
JOURNAL LEAVES UNCLEAR THE REASONS FOR THE CHANGE.  HOWEVER, BINGHAM
HIMSELF HAD RATHER CONSISTENTLY VOTED AGAINST PROPOSALS FOR DIRECT AND
IMMEDIATE ENFRANCHISEMENT, /27/  AND ON THE FACE OF THINGS IT SEEMS
UNLIKELY THAT THE OTHER MEMBERS OF THE JOINT COMMITTEE UNDERSTOOD HIS
PROVISION TO BE AN ENFRANCHISING PROPOSAL.  /28/  THAT THEY DID NOT SO
UNDERSTAND IS DEMONSTRATED BY THE SPEECHES IN THE DEBATES ON THE
FLOOR.  /29/ 

BEFORE I EXAMINE THOSE DEBATES, A WORD OF EXPLANATION IS IN ORDER. 
FOR OBVIOUS REASONS, THE DISCUSSIONS OF VOTER QUALIFICATIONS IN THE
39TH CONGRESS AND AMONG THE PUBLIC WERE CAST PRIMARILY IN TERMS OF
RACIAL DISQUALIFICATIONS.  THIS DOES NOT DETRACT FROM THEIR UTILITY AS
GUIDES TO INTERPRETATION.  WHEN AN INDIVIDUAL SPEAKER SAID THAT THE
AMENDMENT WOULD NOT RESULT IN THE ENFRANCHISEMENT OF NEGROES, HE MUST
HAVE TAKEN ONE OF TWO VIEWS:  EITHER THE AMENDMENT DID NOT REACH VOTER
QUALIFICATIONS AT ALL; OR IT SET STANDARDS LIMITING STATE RESTRICTIONS
ON THE BALLOT, BUT THOSE STANDARDS DID NOT PROHIBIT RACIAL
DISCRIMINATION.  I HAVE ALREADY SET OUT SOME OF THE REASONS WHICH LEAD
ME TO CONCLUDE THAT THE FORMER INTERPRETATION IS CORRECT, AND THAT IT
IS THE UNDERSTANDING SHARED BY THE FRAMERS OF THE AMENDMENT, AS WELL AS
BY ALMOST ALL OF THE OPPONENTS.  THE MERE STATEMENT OF THE LATTER
POSITION APPEARS TO ME TO BE A COMPLETE REFUTATION OF IT.  EVEN ON ITS
WHOLLY UNSUPPORTABLE ASSUMPTIONS (1) THAT CERTAIN FRAMERS OF THE
AMENDMENT CONTEMPLATED THAT THE PRIVILEGES AND IMMUNITIES OF CITIZENS
INCLUDED THE VOTE (2) THAT THEY INTENDED TO PERMIT STATE LAWS TO
ABRIDGE THE PRIVILEGES AND IMMUNITIES OF CITIZENS WHENEVER IT WAS
RATIONAL TO DO SO, AND (3) THAT THEY AGREED ON THE RATIONALITY OF
PROHIBITING THE FREED SLAVES FROM VOTING, THIS REMARKABLE THEORY STILL
FAILS TO EXPLAIN WHY THEY UNDERSTOOD THE AMENDMENT TO PERMIT RACIAL
VOTING QUALIFICATIONS IN THE FREE STATES OF THE NORTH. 

D. IN CONGRESS. 

ON MAY 8, 1866, THADDEUS STEVENS LED OFF DEBATE ON H.R. 127, THE
JOINT RESOLUTION PROPOSING THE FOURTEENTH AMENDMENT.  AFTER EXPLAINING
THE DELAY OF THE JOINT COMMITTEE IN COMING UP WITH A PLAN OF
RECONSTRUCTION, HE APOLOGIZED FOR HIS PROPOSAL IN ADVANCE: 

     "THIS PROPOSITION IS NOT ALL THAT THE COMMITTEE DESIRED.  IT

  FALLS FAR SHORT OF MY WISHES, BUT IT FULFILLS MY HOPES.  I

  BELIEVE IT IS ALL THAT CAN BE OBTAINED IN THE PRESENT STATE OF

  PUBLIC OPINION.  NOT ONLY CONGRESS BUT THE SEVERAL STATES ARE TO

  BE CONSULTED.  UPON A CAREFUL SURVEY OF THE WHOLE GROUND, WE DID

  NOT BELIEVE THAT NINETEEN OF THE LOYAL STATES COULD BE INDUCED TO

  RATIFY ANY PROPOSITION MORE STRINGENT THAN THIS."  GLOBE 2459. 

IN THE CLIMATE OF THETIMES, STEVENS COULD HARDLY HAVE BEEN
UNDERSTOOD AS REFERRING TO ANYTHING OTHER THAN THE FAILURE OF THE
MEASURE TO MAKE SOME PROVISION FOR THE ENFRANCHISEMENT OF THE
FREEDMEN.  HOWEVER, LEST ANY MISTAKE BE MADE, HE RECOUNTED THE HISTORY
OF THE COMMITTEE'S PRIOR EFFORT IN THE FIELD OF REPRESENTATION AND
SUFFRAGE, H.R. 51, WHICH "WOULD SURELY HAVE SECURED THE ENFRANCHISEMENT
OF EVERY CITIZEN AT NO DISTANT PERIOD."  THAT MEASURE WAS DEAD,
"SLAUGHTERED BY A PUERILE AND PEDANTIC CRITICISM," AND "UNLESS THIS
(LESS EFFICIENT, I ADMIT) SHALL PASS, ITS DEATH HAS POSTPONED THE
PROTECTION OF THE COLORED RACE PERHAPS FOR AGES."  IBID. 

WITH THIS EXPLANATION MADE, STEVENS TURNED TO A SECTION-BY-SECTION
STUDY OF THE PROPOSED RESOLUTION.  THE RESULTS TO BE ACHIEVED BY SEC.
1, AS HE SAW IT, WOULD BE EQUAL PUNISHMENT FOR CRIME, EQUAL ENTITLEMENT
TO THE BENEFITS OF "WHATEVER LAW PROTECTS THE WHITE MAN,"  EQUAL MEANS
OF REDRESS, AND EQUAL COMPETENCE TO TESTIFY.  IBID.  IF HE THOUGHT THE
PRECEDING APOLOGY FOR THE FACT THAT IT DID NOT, HIS FAILURE TO MENTION
THAT APPLICATION IS REMARKABLE." 

TURNING THEN TO SEC. 2, STEVENS AGAIN DISCUSSED RACIAL
QUALIFICATIONS FOR VOTING.  HE EXPLAINED THE SECTION AS FOLLOWS: 

"IF ANY STATE SHALL EXCLUDE ANY OF HER ADULT MALE CITIZENS FROM THE
ELECTIVE FRANCHISE, OR ABRIDGE THAT RIGHT, SHE SHALL FORFEIT HER RIGHT
TO REPRESENTATION IN THE SAME PROPORTION.  THE EFFECT OF THIS PROVISION
WILL BE EITHER TO COMPEL THE STATES TO GRANT UNIVERSAL SUFFRAGE OR SO
TO SHEAR THEM OF THEIR POWER AS TO KEEP THEM FOREVER IN A HOPELESS
MINORITY IN THE NATIONAL GOVERNMENT, BOTH LEGISLATIVE AND EXECUTIVE." 
IBID. STEVENS RECOGNIZED THAT IT MIGHT TAKE SEVERAL YEARS FOR THE
COERCIVE EFFECT OF THE AMENDMENT TO RESULT IN NEGRO SUFFRAGE, BUT SINCE
THIS WOULD GIVE TIME FOR EDUCATION AND ENLIGHTENMENT OF THE FREEDMEN,
"THAT SHORT DELAY WOULD NOT BE INJURIOUS."  IBID.  HE DID NOT INDICATE
THAT HE BELIEVED IT WOULD BE UNCONSTITUTIONAL.  HE ADMITTED THAT SEC. 2
WAS NOT SO GOOD AS THE PROPOSAL WHICH HAD BEEN DEFEATED IN THE SENATE,
FOR THAT, BY REDUCING REPRESENTATION BY ALL THE MEMBERS OF A RACE IF
ANY ONE WAS DISCRIMINATED AGAINST, WOULD HAVE HASTENED FULL
ENFRANCHISEMENT.  SECTION 2 ALLOWED PROPORTIONAL CREDIT.  "BUT IT IS A
SHORT STEP FORWARD.  THE LARGE STRIDE WHICH WE IN VAIN PROPOSED IS
DEAD.  . . . "  GLOBE 2460. 

I HAVE DEALT AT LENGTH WITH STEVENS' REMARKS BECAUSE OF HIS
PROMINENT POSITION IN THE HOUSE AND IN THE JOINT COMMITTEE.  THE
REMAINING REMARKS, EXCEPT FOR BINGHAM'S SUMMATION, CAN BE TREATED IN
MORE SUMMARY FASHION.  OF THE SUPPORTERS OF THE AMENDMENT, GARFIELD OF
OHIO, /31/  KELLEY OF PENNSYLVANIA, /32/  BOUTWELL OF MASSACHUSETTS (A
MEMBER OF THE JOINT COMMITTEE), /33/  ELIOT OF MASSACHUSETTS, /34/
BEAMAN OF MICHIGAN, /35/  AND FARNSWORTH OF ILLINOIS, /36/  EXPRESSED
THEIR REGRET THAT THE AMENDMENT DID NOT PROHIBIT RESTRICTIONS ON THE
FRANCHISE.  AS THE QUOTATIONS SET OUT IN THE MARGIN INDICATE, THE
ABSENCE OF SUCH A PROHIBITION WAS GENERALLY ATTRIBUTED TO PREJUDICE IN
THE CONGRESS, IN THE STATES, OR BOTH, TO SUCH AN EXTENT THAT AN
ENFRANCHISING AMENDMENT COULD NOT PASS.  THIS CORRESPONDS WITH THE
FIRST PART OF STEVENS'  INTRODUCTORY SPEECH. 

OTHER SUPPORTERS OF THE AMENDMENT OBVIOUSLY BASED THEIR REMARKS ON
THEIR UNDERSTANDING THAT IT DID NOT AFFECT STATE LAWS IMPOSING
DISCRIMINATORY VOTING QUALIFICATIONS, BUT DID NOT INDICATE THAT THE
OMISSION WAS A DRAWBACK IN THEIR VIEW.  IN THIS GROUP WERE THAYER OF
PENNSYLVANIA, /37/  BROOMALL OF PENNSYLVANIA, /38/  RAYMOND OF NEW
YORK, /39/  MCKEE OF KENTUCKY, /40/  MILLER OF PENNSYLVANIA, /41/
BANKS OF MASSACHUSETTS, /42/  AND ECKLEY OF OHIO.  /43/ 

THE REMAINING MEMBERS OF THE HOUSE WHO SUPPORTED THE FOURTEENTH
AMENDMENT EITHER DID NOT SPEAK AT ALL OR DID NOT ADDRESS THEMSELVES TO
THE SUFFRAGE ISSUE IN ANY VERY CLEAR TERMS.  THOSE IN THE LATTER GROUP
WHO GAVE SPEECHES ON THE PROPOSED AMENDMENT INCLUDED SPALDING OF OHIO,
/44/  LONGYEAR OF MICHIGAN, /45/  AND SHELLABARGER OF OHIO.  /46/  THE
REMAINING REPUBLICAN MEMBERS OF THE JOINT COMMITTEE-- WASHBURNE OF
ILLINOIS, MORRILL OF VERMONT, CONKLING OF NEW YORK, AND BLOW OF
MISSOURI-- DID NOT PARTICIPATE IN THE DEBATES OVER THE AMENDMENT. 

IN THE OPPOSITION TO THE AMENDMENT WERE ONLY THE HANDFUL OF
DEMOCRATS.  EVEN THEY, WITH ONE SEEMING EXCEPTION, DID NOT ASSERT THAT
THE AMENDMENT WAS APPLICABLE TO SUFFRAGE, ALTHOUGH THEY WOULD HAVE BEEN
EXPECTED TO DO SO IF THEY THOUGHT SUCH A READING PLAUSIBLE.  FINCK OF
OHIO AND SHANKLIN OF KENTUCKY DID NOT EVEN MENTION NEGRO SUFFRAGE IN
THEIR ATTACKS ON THE AMENDMENT, ALTHOUGH FINCK DISCUSSED THE REASONS
WHY THE SOUTHERN STATES COULD NOT BE EXPECTED TO RATIFY IT, GLOBE 2460
2462, AND SHANKLIN CHARACTERIZED THE AMENDMENT AS "TYRANNICAL AND
OPPRESSIVE."  GLOBE 2501.  ELDRIDGE OF WISCONSIN /47/  AND RANDALL OF
PENNSYLVANIA /48/  AFFIRMATIVELY INDICATED THEIR UNDERSTANDING THAT
WITH THE AMENDMENT THE RADICALS HAD AT LEAST TEMPORARILY ABANDONED
THEIR CRUSADE FOR NEGRO SUFFRAGE, AS DID FINCK WHEN THE MEASURE
RETURNED FROM THE SENATE WITH AMENDMENTS.  /49/ 

THE OTHER TWO DEMOCRATS TO PARTICIPATE IN THE THREE DAYS OF DEBATE
ON H.R. 127, BOYER OF PENNSYLVANIA AND ROGERS OF NEW JERSEY, HAVE BEEN
A SOURCE OF GREAT COMFORT TO THOSE WHO SET OUT TO PROVE THAT THE
HISTORY OF THE FOURTEENTH AMENDMENT IS INCONCLUSIVE ON THIS ISSUE. 
EACH, IN THE COURSE OF A LENGTHY SPEECH, INCLUDED A SENTENCE WHICH,
TAKEN OUT OF CONTEXT, CAN BE READ TO INDICATE A FEAR THAT SEC. 1 MIGHT
PROHIBIT RACIAL RESTRICTIONS ON THE BALLOT.  BOYER SAID, "THE FIRST
INTENDED TO SECURE ULTIMATELY, AND TO SOME EXTENT INDIRECTLY, THE
POLITICAL EQUALITY OF THE NEGRO RACE."  GLOBE 2467.  ROGERS, COMMENTING
ON THE UNCERTAIN SCOPE OF THE PRIVILEGES AND IMMUNITIES CLAUSE,
OBSERVED:  "THE RIGHT TO VOTE IS A PRIVILEGE."  GLOBE 2538.     WHILE
THESE TWO STATEMENTS ARE PERHAPS INNOCUOUS ENOUGH TO BE LEFT ALONE, IT
IS NOTEWORTHY THAT EACH SPEAKER HAD EARLIER IN THE SESSION DELIVERED A
TIRADE AGAINST THE PRINCIPLE OF NEGRO SUFFRAGE; /50/  IF EITHER
SERIOUSLY BELIEVED THAT THE FOURTEENTH AMENDMENT MIGHT ENFRANCHISE THE
FREEDMEN, HE WAS UNUSUALLY CALM ABOUT THE FACT.  THAT THEY DID NOT
SERIOUSLY INTERPRET THE AMENDMENT IN THIS WAY IS INDICATED AS WELL BY
OTHER ORTIONS OF THEIR SPEECHES.  /51/ 

TWO OTHER OPPONENTS OF THE FOURTEENTH AMENDMENT, PHELPS OF MARYLAND
AND NIBLACK OF INDIANA, MADE STATEMENTS WHICH HAVE BEEN ADDUCED TO SHOW
THAT THERE WAS NO CONSENSUS ON THE APPLICABILITY OF THE FOURTEENTH
AMENDMENT TO SUFFRAGE LAWS.  PHELPS VOICED HIS SENTIMENTS ON MAY 5,
THREE DAYS BEFORE THE BEGINNING OF DEBATE.  /52/  IN THE COURSE OF A
SPEECH URGING A SOFT POLICY ON RECONSTRUCTION, HE EXPRESSED THE FEAR
THAT THE AMENDMENT WOULD AUTHORIZE CONGRESS TO DEFINE THE PRIVILEGES OF
CITIZENS TO INCLUDE THE SUFFRAGE-- OR INDEED THAT IT MIGHT HAVE THAT
EFFECT PROPRIO VIGORE.  GLOBE 2398.  PHELPS DID NOT REPEAT THIS
SENTIMENT AFTER HE WAS CONTRADICTED BY SPEAKER AFTER SPEAKER DURING THE
DEBATES PROPER; INDEED, HE DID NOT TAKE PART IN THE DEBATES AT ALL, BUT
SIMPLY VOTED AGAINST THE AMENDMENT, ALONG WITH MOST OF HIS DEMOCRATIC
COLLEAGUES.  GLOBE 2545.  /53/ 

AS FOR NIBLACK, ON THE FIRST DAY OF DEBATE HE MADE THE FOLLOWING
REMARKS: 

"I GIVE NOTICE THAT I WILL OFFER THE FOLLOWING AMENDMENT IF I SHALL
HAVE THE OPPORTUNITY: 

     "'ADD TO THE FIFTH SECTION AS FOLLOWS: 

     "'PROVIDED, THAT NOTHING CONTAINED IN THIS ARTICLE SHALL BE SO

  CONSTRUED AS TO AUTHORIZE CONGRESS TO REGULATE OR CONTROL THE

  ELECTIVE FRANCHISE WITHIN ANY STATE, OR TO ABRIDGE OR RESTRICT

  THE POWER OF ANY STATE TO REGULATE OR CONTROL THE SAME WITHIN ITS

  OWN JURISDICTION, EXCEPT AS IN THE THIRD SECTION HEREOF

  PRESCRIBED.'"  GLOBE 2465. 

LIKE PHELPS, NIBLACK FOUND IT UNNECESSARY TO PARTICIPATE IN THE
DEBATES.  HE WAS NOT HEARD FROM AGAIN UNTIL THE VOTE ON THE CALL FOR
THE PREVIOUS QUESTION.  AS GARFIELD ASCERTAINED AT THE TIME, THE ONLY
OPPORTUNITY TO AMEND H.R. 127 WOULD ARISE IF THE DEMAND WAS VOTED
DOWN.  NIBLACK VOTED TO SUSTAIN IT.  GLOBE 2545. 

DEBATE IN THE HOUSE WAS SUBSTANTIALLY CONCLUDED BY BINGHAM, THE MAN
PRIMARILY RESPONSIBLE FOR THE LANGUAGE OF SEC. 1.  WITHOUT
EQUIVOCATION, HE STATED: 

"THE AMENDMENT DOES NOT GIVE, AS THE SECOND SECTION SHOWS, THE POWER
TO CONGRESS OF REGULATING SUFFRAGE IN THE SEVERAL STATES. 

     "THE SECOND SECTION EXCLUDES THE CONCLUSION THAT BY THE FIRST

  SECTION SUFFRAGE IS SUBJECTED TO CONGRESSIONAL LAW; SAVE, INDEED,

  WITH THIS EXCEPTION, THAT AS THE RIGHT IN THE PEOPLE OF EACH

  STATE TO A REPUBLICAN GOVERNMENT AND TO CHOOSE THEIR

  REPRESENTATIVES IN CONGRESS IS OF THE GUARANTEES OF THE

  CONSTITUTION, BY THIS AMENDMENT A REMEDY MIGHT BE GIVEN DIRECTLY

  FOR A CASE SUPPOSED BY MADISON, WHERE TREASON MIGHT CHANGE A

  STATE GOVERNMENT FROM A REPUBLICAN TO A DESPOTIC GOVERNMENT, AND

  THEREBY DENY SUFFRAGE TO THE PEOPLE."  GLOBE 2542. 

STEVENS THEN AROSE BRIEFLY IN REBUTTAL.  HE ATTACKED BINGHAM FOR
SAYING IN ANOTHER PORTION OF HIS SPEECH THAT THE DISQUALIFICATION
PROVISION OF SEC. 3 WERE UNENFORCEABLE.  HE DID NOT CONTRADICT-- OR
EVEN REFER TO-- BINGHAM'S INTERPRETAION OF SECS. 1 AND 2.  GLOBE 2544. 
THE VOTE WAS TAKEN AND THE RESOLUTION PASSED IMMEDIATELY THEREAFTER. 
GLOBE 2545. 

TO SAY THAT STEVENS DID NOT CONTRADICT BINGHAM IS TO MINIMIZE THE
FORCE OF THE RECORD.  NOT ONCE, DURING THE THREE DAYS OF DEBATE, DID
ANY SUPPORTER OF THE AMENDMENT CRITICIZE OR CORRECT ANY OF THE
REPUBLICANS OR DEMOCRATS WHO OBSERVED THAT THE AMENDMENT LEFT THE
BALLOT "EXCLUSIVELY UNDER THE CONTROL OF THE STATES."  GLOBE 2542
(BINGHAM).  THIS FACT IS TACITLY ADMITTED EVEN BY THOSE WHO FIND THE
DEBATES "INCONCLUSIVE."  THE ONLY CONTRARY AUTHORITY THEY CAN FIND IN
THE DEBATES IS THE PALE REMARKS OF THE FOUR DEMOCRATS ALREADY
DISCUSSED.  /54/ 

IN THE SENATE, WHICH DID NOT HAVE A GAG RULE, MATTERS PROCEEDED AT A
MORE LEISURELY PACE.  THE INTRODUCTORY SPEECH WOULD NORMALLY HAVE BEEN
GIVEN BY SENATOR FESSENDENOF MAINE, THE CHAIRMAN OF THE JOINT COMMITTEE
ON BEHALF OF THE SENATE, BUT HE WAS STILL WEAK WITH ILLNESS AND UNABLE
TO DELIVER A LENGTHY SPEECH.  THE DUTY OF PRESENTING THE VIEWS OF THE
JOINT COMMITTEE THEREFORE DEVOLVED ON SENATOR HOWARD OF MICHIGAN. 
/55/ 

HOWARD MINCED NO WORDS.  HE STATED THAT 

"THE FIRST SECTION OF THE PROPOSED AMENDMENT DOES NOT GIVE TO EITHER
OF THESE CLASSES THE RIGHT OF VOTING.  THE RIGHT OF SUFFRAGE IS NOT, IN
LAW, ONE OF THE PRIVILEGES OR IMMUNITIES THUS SECURED BY THE
CONSTITUTION.  IT IS MERELY THE CREATURE OF LAW.  IT HAS ALWAYS BEEN
REGARDED IN THIS COUNTRY AS THE RESULT OF POSITIVE LOCAL LAW, NOT
REGARDED AS ONE OF THOSE FUNDAMENTAL RIGHTS LYING AT THE BASIS OF ALL
SOCIETY AND WITHOUT WHICH A PEOPLE CANNOT EXIST EXCEPT AS SLAVES,
SUBJECT TO A DEPOTISM (SIC).  GLOBE 2766.  "THE SECOND SECTION LEAVES
THE RIGHT TO REGULATE THE ELECTIVE FRANCHISE STILL WITH THE STATES, AND
DOES NOT MEDDLE WITH THAT RIGHT."  IBID.  HOWARD STATED THAT WHILE HE
PERSONALLY WOULD HAVE PREFERRED TO SEE THE FREEDMEN ENFRANCHISED, THE
COMMITTEE WAS CONFRONTED WITH THE NECESSITY OF PROPOSING AN AMENDMENT
WHICH COULD BE RATIFIED. 

     "THE COMMITTEE WERE OF OPINION THAT THE STATES ARE NOT YET

  PREPARED TO SANCTION SO FUNDAMENTAL A CHANGE AS WOULD BE THE

  CONCESSION OF THE RIGHT OF SUFFRAGE TO THE COLORED RACE.  WE MAY

  AS WELL STATE IT PLAINLY AND FAIRLY, SO THAT THERE SHALL BE NO

  MISUNDERSTANDING ON THE SUBJECT.  IT WAS OUR OPINION THAT THREE

  FOURTHS OF THE STATES OF THIS UNION COULD NOT BE INDUCED TO VOTE

TO GRANT THE RIGHT OF SUFFRAGE, EVEN IN ANY DEGREE OR UNDER ANY

  RESTRICTION, TO THE COLORED RACE."  IBID.

HOWARD'S FORTHRIGHT ATTEMPT TO PREVENT MISUNDERSTANDING WAS COMPLETELY
SUCCESSFUL INSOFAR AS THE SENTATE WAS CONCERNED; AT LEAST, NO ONE HAS
AT YET DISCOVERED A REMARK DURING THE SENATE DEBATES ON THE PROPOSED
FOURTEENTH AMENDMENT WHICH INDICATES ANY CONTRARY IMPRESSION.  /56/
FOR SOME, HOWEVER, TIME HAS MUDDIED THE CLARITY WITH WHICH HE SPOKE. 
/57/ 

THE SENATE, LIKE THE HOUSE, MADE FREQUENT REFERENCE TO THE FACT THAT
THE PROPOSED AMENDMENT WOULD NOT RESULT IN THE ENFRANCHISEMENT OF THE
FREEDMEN.  THE SUPPORTERS WHO EXPRESSED THEIR REGRET AT THE FACT WERE
WADE OF OHIO, /58/  POLAND OF VERMONT, /59/  STEWART OF NEVADA, /60/
HOWE OF WISCONSIN, /61/  HENDERSON OF MISSOURI, /62/  AND YATES OF
ILLINOIS.  /63/  THE REMARKS OF SENATOR SHERMAN OF OHIO, WHOSE SUPPORT
FOR THE AMENDMENT WAS LUKEWARM, SEE GLOBE 2986, SEEM TO HAVE BEEN BASED
ON THE COMMON INTERPRETATION.  /64/ 

DOOLITTLE OF WISCONSIN, WHOSE SUPPORT FOR THE PRESIDENT RESULTED IN
HIS VIRTUALLY BEING READ OUT OF THE REPUBLICAN PARTY, PROPOSED TO BASE
REPRESENTATION ON ADULT MALE VOTERS.  GLOBE 2942.  IN A DISCUSSION WITH
SENATOR GRIMES OF IOWA, A MEMBER OF THE JOINT COMMITTEE, ABOUT THE
DESIRABILITY OF THIS CHANGE, COOLITTLE DEFENDED HIMSELF BY POINTING OUT
THAT:  "YOUR AMENDMENT PROPOSES TO ALLOW THE STATES TO SAY WHO SHALL
VOTE."  GLOBE 2943.  GRIMES DID NOT RESPOND.  AMONG THE DEMOCRATS, NO
DIFFERENT VIEW WAS EXPRESSED.  THOSE WHOSE REMARKS ARE INFORMATIVE ARE
HENDRICKS OF INDIANA, /65/  COWAN OF PENNSYLVANIA, /66/  DAVIS OF
KENTUCKY, /67/  AND JOHNSON OF MARYLAND.  /68/ 

SENATOR HOWARD, WHO HAD OPENED DEBATE, MADE THE LAST REMARKS IN
FAVOR OF THE AMENDMENT.  HE SAID:

"WE KNOW VERY WELL THAT THE STATES RETAIN THE POWER, WHICH THEY HAVE
ALWAYS POSSESSED, OF REGULATING THE RIGHT OF SUFFRAGE IN THE STATES. 
IT IS THE THEORY OF THE CONSTITUTION ITSELF.  THAT RIGHT HAS NEVER BEEN
TAKEN FROM THEM; NO ENDEAVOR HAS EVER BEEN MADE TO TAKE IT FROM THEM;
AND THE THEORY OF THIS WHOLE AMENDMENT IS, TO LEAVE THE POWER OF
REGULATING THE SUFFRAGE WITH THE PEOPLE OR LEGISLATURES OF THE STATES,
AND NOT TO ASSUME TO REGULATE IT BY ANY CLAUSE OF THE CONSTITUTION OF
THE UNITED STATES."  GLOBE 3039.  SHORTLY THEREAFTER THE AMENDMENT WAS
APPROVED.  GLOBE 3041-3042. 

IN THE HOUSE, THERE WAS A BRIEF DISCUSSION OF THE SENATE AMENDMENTS
AND THE MEASURE GENERALLY, CHIEFLY BY THE DEMOCRATS.  STEVENS THEN
CONCLUDED THE DEBATE AS HE HAD BEGUN IT, EXPRESSING HIS REGRET THAT THE
AMENDMENT WOULD NOT ENFRANCHISE THE FREEDMEN.  /69/  THE HOUSE ACCEPTED
THE SENATE CHANGES AND SENT THE MEASURE TO THE STATES.  GLOBE 3149. 

        E. COLLATERAL EVIDENCE OF CONGRESSIONAL INTENT 

IT HAS BEEN SUGGESTED THAT DESPITE THIS EVIDENCE OF CONGRESSIONAL
UNDERSTANDING, WHICH SEEMS TO ME OVERWHELMING, THE HISTORY IS
NONETHELESS INCONCLUSIVE.  PRIMARY RELIANCE IS PLACED ON DEBATES OVER
H.R. 51, THE JOINT COMMITTEE'S FIRST EFFORT IN THE FIELD OF THE BASIS
OF REPRESENTATION.  IN THESE DEBATES, SOME OF THE MORE EXTREME
RADICALS, TYPIFIED BY SENATOR SUMNER OF MASSACHUSETTS, SUGGESTED THAT
CONGRESS HAD POWER TO INTERFERE WITH STATE VOTER QUALIFICATIONS AT
LEAST TO THE EXTENT OF ENFRANCHISING THE FREEDMEN.  THIS POWER WAS SAID
TO EXIST IN A VARIETY OF CONSTITUTIONAL PROVISIONS, INCLUDING ART. I,
SEC. 2, ART. I, SEC. 4, THE WAR POWER, THE POWER OVER TERRITORIES, THE
GUARANTEE OF A REPUBLICAN FORM OF GOVERNMENT, AND SEC. 2 OF THE
THIRTEENTH AMENDMENT.  THOSE WHO HELD THIS VIEW EXPRESSED CONCERN LEST
THE COMMITTEE'S PROPOSAL BE READ TO AUTHORIZE THE STATES TO
DISCRIMINATE ON RACIAL GROUNDS AND STATED THAT THEY COULD NOT VOTE FOR
THE MEASURE IF SUCH WAS THE CORRECT CONSTRUCTION.  THEY WERE SOMETIMES
COMFORTED BY SUPPORTERS OF THE COMMITTEE PROPOSAL, WHO ASSURED THEM
THAT THERE WOULD BE NO SUCH EFFECT.  FROM THESE STATEMENTS, AND THE
FACT THAT SOME OF THOSE WHO TOOK THE EXTREME VIEW ULTIMATELY DID VOTE
FOR THE PROPOSED FOURTEENTH AMENDMENT, IT IS SOUGHT TO CONSTRUCT A
COUNTER-ARGUMENT:  IF H.R. 51, PROPERLY INTERPRETED, WOULD NOT HAVE
PRECLUDED CONGRESSIONAL EXERCISE OF POWER OTHERWISE EXISTING UNDER THE
CONSTITUTIONAL PROVISIONS REFERRED TO, THEN SEC. 2 OF THE FOURTEENTH
AMENDMENT, PROPERLY INTERPRETED, DOES NOT PRECLUDE THE EXERCISE OF
CONGRESSIONAL POWER UNDER SECS. 1 AND 5 OF THAT AMENDMENT. 

THIS ARGUMENT, HOWEVER, IS EVEN LOGICALLY FALLACIOUS, AND QUITE
UNDERSTANDABLY NONE OF THE OPINIONS FILED TODAY PLACE MUCH RELIANCE ON
IT.  I DO NOT MAINTAIN THAT THE FRAMERS OF THE FOURTEENTH AMENDMENT
TOOK AWAY WITH ONE HAND WHAT THEY HAD GIVEN WITH THE OTHER, BUT SIMPLY
THAT THE AMENDMENT MUST BE CONSTRUED AS A WHOLE, AND THAT FOR THE
REASONS ALREADY GIVEN, SUPRA, AT 167-170, THE INCLUSION OF SEC. 2
DEMONSTRATES THAT THE FRAMERS NEVER INTENDED TO CONFER THE POWER WHICH
MY BRETHREN SEEK TO FIND IN SECS. 1 AND 5.  BINGHAM, FOR ONE,
DISTINGUISHED BETWEEN THESE TWO POSITIONS.  WHEN IT WAS SUGGESTED IN
THE DEBATES OVER H.R. 51 THAT THE PROVISO WOULD REMOVE PRE-EXISTING
CONGRESSIONAL POWER OVER VOTING QUALIFICATIONS, BINGHAM MADE THE
RESPONSE QUOTED BY MY COLLEAGUES.  GLOBE 431-432; SEE POST, AT 276
277.  WHEN IT WAS OBSERVED DURING THE DEBATES OVER THE PROPOSED
FOURTEENTH AMENDMENT THAT SEC. 2 DEMONSTRATED THAT THE AMENDMENT DID
NOT REACH STATE CONTROL OVER VOTING QUALIFICATIONS, BINGHAM WAS THE ONE
MAKING THE OBSERVATION.  GLOBE 2542, QUOTED SUPRA, AT 185.  AS BINGHAM
SEEMS TO HAVE RECOGNIZED, THE SORT OF ARGUMENT HE MADE IN CONNECTION
WITH H.R. 51 IS BESIDE THE POINT WITH RESPECT TO THE FOURTEENTH
AMENDMENT. 

IN ANY EVENT, EVEN DISREGARING ITS ANALYTICAL DIFFICULTIES, THE
ARGUMENT IS BASED ON BLATANT FACTUAL SHORTCOMINGS.  ALL BUT ONE OF THE
SPEAKERS ON WHOSE STATEMENTS PRIMARY RELIANCE IS PLACED STATED, EITHER
DURING THE DEBATES ON THE FOURTEENTH AMENDMENT OR SUBSEQUENTLY, THAT
THE AMENDMENT DID NOT ENFRANCHISE THE FREEDMEN.  /70/ 

FINALLY, SOME OF THOSE DETERMINED TO SUSTAIN THE LEGISLATION NOW
BEFORE US RELY ON SPEECHES MADE BETWEEN TWO AND THREE YEARS AFTER
CONGRESS HAD SENT THE PROPOSED AMENDMENT TO THE STATES.  BOUTWELL AND
STEVENS IN THE HOUSE, AND SUMNER IN THE SENATE, ARGUED THAT THE
FIFTEENTH AMENDMENT OR ENFRANCHISING LEGISLATION WAS UNNECESSARY
BECAUSE THE FOURTEENTH AMENDMENT PROHIBITED RACIAL DISCRIMINATION IN
VOTER QUALIFICATIONS.  EACH HAD EARLIER EXPRESSED THE OPPOSITE
POSITION.  /71/  THEIR SUBSEQUENT ATTEMPTS TO ACHIEVE BY ASSERTION WHAT
THEY HAD NOT HAD THE VOTES TO ACHIEVE BY CONSTITUTIONAL PROCESSES CAN
HARDLY BE ENTITLED TO WEIGHT. 

        F. RATIFICATION 

STATE MATERIALS RELATING TO THE RATIFICATION PROCESS ARE NOT VERY
REVEALING.  FOR THE MOST PART ONLY GUBERNATORIAL MESSAGES AND COMMITTEE
REPORTS HAVE SURVIVED.  /72/  SO FAR AS MY EXAMINATION OF THESE
MATERIALS REVEALS, WHILE THE OPPONENTS OF THE AMENDMENT WERE DIVIDED
AND SOMETIMES EQUIVOCAL ON WHETHER IT MIGHT BE CONSTRUED TO REQUIRE
ENFRANCHISEMENT, /73/  THE SUPPORTERS OF THE AMENDMENT IN THE STATES
APPROACHED THE CONGRESSIONAL PROPONENTS IN THE UNANIMITY OF THEIR
INTERPRETATION.  I HAVE DISCOVERED ONLY ONE BRIEF PASSAGE IN SUPPORT OF
THE AMENDMENT WHICH APPEARS TO BE BASED ON THE ASSUMPTION THAT IT WOULD
RESULT IN ENFRANCHISEMENT.  /74/  THESE REMARKS, IN THE MESSAGE OF THE
GOVERNOR OF ILLINOIS, HAD TO COMPETE IN THE MINDS OF THE LEGISLATORS
WITH THE VIEWPOINT OF THE CHICAGO TRIBUNE.  THIS RADICAL JOURNAL
REPEATEDLY CRITICIZED THE AMENDMENT'S LACK OF AN ENFRANCHISING
PROVISION, AND AT ONE TIME IT EVEN EXPRESSED THE HOPE THAT THE SOUTH
WOULD REFUSE TO RATIFY THE AMENDMENT SO THAT THE NORTH WOULD TURN TO
ENFRANCHISEMENT OF THE FREEDMEN AS THE ONLY MEANS OF RECONSTRUCTION. 
JUNE 25, 1866, QUOTED IN JAMES 177.  IN ALL THE OTHER STATES I HAVE
EXAMINED, WHERE THE MATERIALS ARE SUFFICIENTLY FULL FOR THE
UNDERSTANDING OF A SUPPORTER OF THE AMENDMENT TO APPEAR, HIS
UNDERSTANDING HAS BEEN THAT ENFRANCHISEMENT WOULD NOT RESULT.  /75/ 
THE SCANTY OFFICIAL MATERIALS CAN BE SUPPLEMENTED BY OTHER SOURCES. 
THERE WAS A CONGRESSIONAL ELECTION IN THE FALL OF THE YEAR THE
FOURTEENTH AMENDMENT WENT TO THE STATES.  THE RADICALS RAN ON THE
AMENDMENT AS THEIR RECONSTRUCTION PROGRAM, ATTEMPTING TO FORCE VOTERS
TO CHOOSE BETWEEN THEIR PLAN AND THAT OF PRESIDENT JOHNSON.  FROM THE
CAMPAIGN SPEECHES AND FROM NEWSPAPER REACTIONS, WE CAN GET SOME FURTHER
IDEA OF THE UNDERSTANDING OF THE STATES. 

THE TONE OF THE CAMPAIGN WAS SET BY THE FORMAL REPORT OF THE JOINT
COMMITTEE, WHICH FESSENDEN OPENLY STATED HE HAD COMPOSED AS A PARTISAN
DOCUMENT.  JAMES 147.  INDEED, IT WAS NOT EVEN SUBMITTED TO CONGRESS
UNTIL THE DAY THESENATE APPROVED THE MEASURE, AND THEN ONLY IN
MANUSCRIPT FORM.  GLOBE 3038.  ON THE DELICATE ISSUE OF NEGRO SUFFRAGE,
THE REPORT READ AS FOLLOWS:  /76/ 

"DOUBTS WERE ENTERTAINED WHETHER CONGRESS HAD POWER, EVEN UNDER THE
AMENDED CONSTITUTION, TO PRESCRIBE THE QUALIFICATIONS OF VOTERS IN A
STATE, OR COULD ACT DIRECTLY ON THE SUBJECT.  IT WAS DOUBTFUL, IN THE
OPINION OF YOUR COMMITTEE, WHETHER THE STATES WOULD CONSENT TO
SURRENDER A POWER THEY HAD ALWAYS EXERCISED, AND TO WHICH THEY WERE
ATTACHED.  AS THE BEST IF NOT THE ONLY METHOD OF SURMOUNTING THE
DIFFICULTY, AND AS EMINENTLY JUST AND PROPER IN ITSELF, YOUR COMMITTEE
CAME TO THE CONCLUSION THAT POLITICAL POWER SHOULD BE POSSESSED IN ALL
THE STATES EXACTLY IN PROPORTION AS THE RIGHT OF SUFFRAGE SHOULD BE
GRANTED, WITHOUT DISTINCTION OF COLOR OR RACE.  THIS IT WAS THOUGHT
WOULD LEAVE THE WHOLE QUESTION WITH THE PEOPLE OF EACH STATE, HOLDING
OUT TO ALL THE ADVANTAGE OF INCREASED POLITICAL POWER AS AN INDUCEMENT
TO ALLOW ALL TO PARTICIPATE IN ITS EXERCISE.  SUCH A PROVISION WOULD BE
IN ITS NATURE GENTLE AND PERSUASIVE, AND WOULD LEAD, IT WAS HOPED, AT
NO DISTANT DAY, TO AN EQUAL PARTICIPATION OF ALL, WITHOUT DISTINCTION,
IN ALL THE RIGHTS AND PRIVILEGES OF CITIZENSHIP, THUS AFFORDING A FULL
AND ADEQUATE PROTECTION TO ALL CLASSES OF CITIZENS, SINCE ALL WOULD
HAVE, THROUGH THE BALLOT-BOX, THE POWER OF SELF-PROTECTION. 

   "HOLDING THESE VIEWS, YOUR COMMITTEE PREPARED AN AMENDMENT TO

  THE CONSTITUTION TO CARRY OUT THIS IDEA, AND SUBMITTED THE SAME

  TO CONGRESS.  UNFORTUNATELY, AS WE THINK, IT DID NOT RECEIVE THE

  NECESSARY CONSTITUTIONAL SUPPORT IN THE SENATE, AND THEREFORE

  COULD NOT BE PROPOSED FOR ADOPTION BY THE STATES.  THE PRINCIPLE

  INVOLVED IN THAT AMENDMENT IS, HOWEVER, BELIEVED TO BE SOUND, AND

  YOUR COMMITTEE HAVE AGAIN PROPOSED IT IN ANOTHER FORM, HOPING

  THAT IT MAY RECEIVE THE APPROBATION OF CONGRESS." 

NEWSPAPERS EXPRESSED THE SAME VIEW OF THE REACH OF THE AMENDMENT. 
EVEN WHILE DELIBERATIONS WERE UNDERWAY, PREDICTIONS THAT CONGRESS WOULD
COME UP WITH A PLAN INVOLVING ENFRANCHISEMENT OF THE FREEDMEN HAD
GRADUALLY CEASED.  JAMES 91.  WHEN THE AMENDMENT WAS RELEASED TO THE
PRESS, ANDREW JOHNSON WAS REPORTED AS SEEING IN IT A "PRACTICAL
ABANDONMENT OF THE NEGRO SUFFRAGE ISSUE."  CINCINNATI DAILY COMMERCIAL,
APRIL 30, 1866, QUOTED IN JAMES 117.  THE NEW YORK HERALD HAD REPORTED
EDITORIALLY THAT THE AMENDMENT REFLECTED AN ABANDONMENT OF THE RADICAL
PUSH FOR NEGRO SUFFRAGE AND ACCEPTANCE OF JOHNSON'S POSITION THAT
CONTROL OVER SUFFRAGE RESTED EXCLUSIVELY WITH THE STATES.  MAY 1, 1866,
REPORTED IN JAMES 119.  THE NATION, A RADICAL ORGAN, ATTRIBUTED THE
ABSENCE OF ANY PROVISION ON NEGRO SUFFRAGE TO "SHEER WANT OF CONFIDENCE
IN THE PUBLIC."  2 NATION 545 (MAY 1, 1866), QUOTED IN JAMES 120.  THE
CHICAGO TRIBUNE, ANOTHER RADICAL ORGAN, COMPLAINED THAT SEC. 1 WAS
OBJECTIONABLE AS "SURPLUSAGE," MAY 5, 1866, QUOTED IN JAMES 123, AND
LATER IN THE SAME MONTH CRITICIZED THE MEASURE FOR "POSTPONING, AND NOT
SETTLING" THE MATTER OF EQUAL POLITICAL RIGHTS FOR NEGROES.  MAY 31,
1866, QUOTED IN JAMES 146.  AS DELIBERATIONS CONTINUED, THE REPORTING
WENT ON IN THE SAME VEIN.  THE NEW YORK TIMES REPORTED THAT WITH
ELECTIONS APPROACHING, "NO ONE NOW TALKS OR DREAMS OF FORCING NEGRO
SUFFRAGE UPON THE SOUTHERN STATES."  JUNE 6, 1866.  THE CINCINNATI
DAILY COMMERCIAL AND THE BOSTON DAILY JOURNAL FOR JUNE 7, 1866,
COMMENTED ON THE RADICALS' ABANDONMENT OF NEGRO SUFFRAGE.  JAMES 145. 

MUCH THE SAME PICTURE EMERGES FROM THE CAMPAIGN SPEECHES.  ALTHOUGH
AN OCCASIONAL DEMOCRAT EXPRESSED THE FEAT THAT THE AMENDMENT WOULD OR
MIGHT RESULT IN POLITICAL EQUALITY, /77/  THE SUPPORTERS OF THE
AMENDMENT DENIED SUCH EFFECTS WITHOUT EXCEPTION THAT I HAVE
DISCOVERED.  AMONG THE LEADING CONGRESSIONAL FIGURES WHO STATED IN
CAMPAIGN SPEECHES THAT THE AMENDMENT DID NOT PROHIBIT RACIAL VOTING
QUALIFICATIONS WERE SENATORS HOWE, LANE, SHERMAN, SUMNER, AND TRUMBUL,
AND CONGRESSMEN BINGHAM, DELANO, SCHENCK, AND STEVENS.  SEE JAMES 159
168, 173, 178; FAIRMAN, DOES THE FOURTEENTH AMENDMENT INCORPORATE THE
BILL OF RIGHTS?, 2 STAN.L.REV.  5, 70-78 (1949). 

AS WAS POINTED OUT ABOVE, ALL BUT A HANDFUL OF NORTHERN STATES
PROHIBITED BLACKS FROM VOTING AT ALL, AND OPPOSITION TO A CHANGE WAS
INTENSE.  BETWEEN 1865 AND 1869 REFERENDA ON THE ISSUE REJECTED
IMPARTIAL NEGRO SUFFRAGE IN COLORADO TERRITORY, CONNECTICUT, WISCONSIN,
MINNESOTA (TWICE), THE DISTRICT OF COLUMBIA, NEBRASKA TERRITORY,
KANSAS, OHIO, MICHIGAN, MISSOURI, AND NEW YORK.  ONLY IOWA AND
MINNESOTA ACCEPTED IT, AND THAT ON THE DAY GRANT WAS ELECTED TO THE
PRESIDENCY.  /78/  IT IS INCONCEIVABLE THAT THOSE STATES, IN THAT
CLIMATE, COULD HAVE RATIFIED THE AMENDMENT WITH THE EXPECTATION THAT IT
WOULD REQUIRE THEM TO PERMIT THEIR BLACK CITIZENS TO VOTE. 

SMALL WONDER, THEN, THAT IN EARLY 1869 SUBSTANTIALLY THE SAME GROUP
OF MEN WHO THREE YEARS EARLIER HAD PROPOSED THE FOURTEENTH AMENDMENT
FELT IT NECESSARY TO MAKE FURTHER MODIFICATIONS IN THE CONSTITUTION IF
STATE SUFFRAGE LAWS WERE TO BE CONTROLLED EVEN TO THE MINIMAL DEGREE OF
PROHIBITING QUALIFICATIONS WHICH ON THEIR FACE DISCRIMINATED ON THE
BASIS OF RACE.  IF THE CONSEQUENCES FOR OUR FEDERAL SYSTEM WERE NOT SO
SERIOUS, THE CONTENTION THAT THE HISTORY IS "INCONCLUSIVE" WOULD BE
UNDESERVING OF ATTENTION.  AND, WITH ALL RESPECT, THE TRANSPARENT
FAILURE OF ATTEMPTS TO CAST DOUBT ON THE ORIGINAL UNDERSTANDING IS
SIMPLY FURTHER EVIDENCE OF THE FORCE OF THE HISTORICAL RECORD. 

       II 

THE HISTORY OF THE FOURTEENTH AMENDMENT WITH RESPECT TO SUFFRAGE
QUALIFICATIONS IS REMARKABLY FREE OF THE PROBLEMS WHICH BEDEVIL MOST
ATTEMPTS TO FIND A RELIABLE GUIDE TO PRESENT DECISION IN THE PAGES OF
THE PAST.  INSTEAD, THERE IS VIRTUALLY UNANIMOUS AGREEMENT, CLEARLY AND
REPEATEDLY EXPRESSED, THAT SEC. 1 OF THE AMENDMENT DID NOT REACH
DISCRIMINATORY VOTER QUALIFICATIONS.  IN THIS RATHER REMARKABLE
SITUATION, THE ISSUE OF THE BEARING OF THE HISTORICAL UNDERSTANDING ON
CONSTITUTIONAL INTERPRETATION SQUARELY ARISES. 

I MUST CONFESS TO COMPLETE ASTONISHMENT AT THE POSITION OF SOME OF
MY BRETHREN THAT THE HISTORY OF THE FOURTEENTH AMENDMENT HAS BECOME
IRRELEVANT.  ANTE, AT 139-140.  IN THE SIX YEARS SINCE I FIRST SET OUT
MUCH OF THIS HISTORY, /79/  I HAVE SEEN NO JUSTIFICATION FOR SUCH A
RESULT WHICH APPEARS TO ME AT ALL ADEQUATE.  WITH MATTERS IN THIS
POSTURE, I NEED DO NO MORE BY WAY OF JUSTIFYING MY RELIANCE ON THESE
MATERIALS THAN SKETCH THE FAMILIAR OUTLINES OF OUR CONSTITUTIONAL
SYSTEM. 

WHEN THE CONSTITUTUION WITH ITS ORIGINAL AMENDMENTS CAME INTO BEING,
THE STATES DELEGATED SOME OF THEIR SOVEREIGN POWERS TO THE FEDERAL
GOVERNMENT, SURRENDERED OTHER POWERS, TO THE FEDERAL GOVERNMENT,
SURRENDERED OTHER POWERS, AND EXPRESSLY RETAINED ALL POWERS NOT
DELEGATED OR SURRENDERED.  AMDT. X. THE POWER TO SET STATE VOTING
QUALIFICATIONS WAS NEITHER SURRENDERED NOR DELEGATED, EXCEPT TO THE
EXTENT THAT THE GUARANTEE OF A REPUBLICAN FORM OF GOVERNMENT /80/  MAY
BE THOUGHT TO REQUIRE A CERTAIN MINIMUM DISTRIBUTION OF POLITICAL
POWER.  THE POWER TO SET QUALIFICATIONS FOR VOTERS FOR NATIONAL OFFICE,
CREATED BY THE CONSTITUTION, WAS EXPRESSLY COMMITTED TO THE STATES BY
ART. I, SEC. 2, AND ART. II, SEC. 1.  /81/  BY ART. V, STATES MAY BE
DEPRIVED OF THEIR RETAINED POWERS ONLY WITH THE CONCURRENCE OF TWO
THIRDS OF EACH HOUSE OF CONGRESS AND THREE-FOURTHS OF THE STATES.  NO
ONE ASSERTS THAT THE POWER TO SET VOTING QUALIFICATIONS WAS TAKEN FROM
THE STATES OR SUBJECTED TO FEDERAL CONTROL BY ANY AMENDMENT BEFORE THE
FOURTEENTH.  THE HISTORICAL EVIDENCE MAKES IT PLAIN THAT THE CONGRESS
AND THE STATES PROPOSING AND RATIFYING THAT AMENDMENT AFFIRMATIVELY
UNDERSTOOD THAT THEY WERE NOT LIMITING STATE POWER OVER VOTING
QUALIFICATIONS.  THE EXISTENCE OF THE POWER THEREFORE SURVIVED THE
AMENDING PROCESS, AND, EXCEPT AS IT HAS BEEN LIMITED BY THE FIFTEENTH,
NINETEENTH, AND TWENTY-FOURTH AMENDMENTS, IT STILL EXISTS TODAY.  /82/
INDEED, THE VERY FACT THAT CONSTITUTIONAL AMENDMENTS WERE DEEMED
NECESSARY TO BRING ABOUT FEDERAL OF STATE RESTRICTIONS ON VOTING BY
REASON OF RACE (AMDT. XV), SEX (AMDT. XIX), AND, EVEN WITH RESPECT TO
FEDERAL ELECTIONS, THE FAILURE TO PAY STATE POLL TAXES (AMDT. XXIV), IS
ITSELF FORCEFUL EVIDENCE OF THE COMMON UNDERSTANDING IN 1869, 1919, AND
1962, RESPECTIVELY, THAT THE FOURTEENTH AMENDMENT DID NOT EMPOWER
CONGRESS TO LEGISLATE IN THESE RESPECTS. 

IT MUST BE RECOGNIZED, OF COURSE, THAT THE AMENDING PROCESS IS NOT
THE ONLY WAY IN WHICH CONSTITUTUIONAL UNDERSTANDING ALTERS WITH TIME. 
THE JUDICIARY HAS LONG BEEN ENTRUSTED WITH THE TASK OF APPLYING THE
CONSTITUTION IN CHANGING CIRCUMSTANCES, AND AS CONDITIONS CHANGE THE
CONSTITUTION IN A SENSE CHANGES AS WELL.  BUT WHEN THE COURT GIVES THE
LANGUAGE OF THE CONSTITUTION AN UNFORSEEN APPLICATION, IT DOES SO,
WHETHER EXPLICITLY OR IMPLICITLY, IN THE NAME OF SOME UNDERLYING
PURPOSE OF THE FRAMERS.  /83/  THIS IS NECESSARILY SO; THE FEDERAL
JUDICIARY, WHICH BY EXPRESSS CONSTITUTIONAL PROVISION IS APPOINTED FOR
LIFE, AND THEREFORE CANNOT BE HELD RESPONSIBLE BY THE ELECTORATE, HAS
NO INHERENT GENERAL AUTHORITY TO ESTABLISH THE NORMS FOR THE REST OF
SOCIETY.  IT IS LIMITED TO ELABORATION AND APPLICATION OF THE PRECEPTS
ORDAINED IN THE CONSTITUTION BY THE POLITICAL REPRESENTATIVES OF THE
PEOPLE.  WHEN THE COURT DISREGARDS THE EXPRESS INTENT AND UNDERSTANDING
OF THE FRAMERS, IT HAS INVADED THE REALM OF THE POLITICAL PROCESS TO
WHICH THE AMENDING POWER WAS COMMITTED, AND IT HAS VIOLATED THE
CONSTITUTIONAL STRUCTURE WHICH IT IS ITS HIGHEST DUTY TO PROTECT. 
/84/ 

AS THE COURT IS NOT JUSTIFIED IN SUBSTITUTING ITS OWN VIEWS OF WISE
POLICY FOR THE COMMANDS OF THE CONSTITUTION, STILL LESS IS IT JUSTIFIED
IN ALLOWING CONGRESS TO DISREGARD THOSE COMMANDS AS THE COURT
UNDERSTANDS THEM.  ALTHOUGH CONGRESS' EXPRESSION OF THE VIEW THAT IT
DOES HAVE POWER TO ALTER STATE SUFFRAGE QUALIFICATIONS IS ENTITLED TO
THE MOST RESPECTFUL CONSIDERATION BY THE JUDICIARY, COMING AS IT DOES
FROM A COORDINATE BRANCH OF GOVERNMENT, /85/  THIS CANNOT DISPLACE THE
DUTY OF THIS COURT TO MAKE AN INDEPENDENT DETERMINATION WHETHER
CONGRESS HAS EXCEEDED ITS POWERS.  THE REASON FOR THIS GOES BEYOND
MARSHALL'S ASSERTION THAT:  "IT IS EMPHATICALLY THE PROVINCE AND DUTY
OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS."  MARBURY V.
MADISON, 1 CRANCH 137, 177 (1803).  /86/  IT INHERES IN THE STRUCTURE
OF THE CONSTITUTIONAL SYSTEM ITSELF.  CONGRESS IS SUBJECT TO NONE OF
THE INSTITUTIONAL RESTRAINTS IMPOSED ON JUDICIAL DECISIONMAKING; IT IS
CONTROLLED ONLY BY THE POLITICAL PROCESS.  IN ARTICLE V, THE FRAMERS
EXPRESSED THE VIEW THAT THE POLITICAL RESTRAINTS ON CONGRESS ALONE WERE
AN INSUFFICIENT CONTROL OVER THE PROCESS OF CONSTITUTION MAKING.  THE
CONCURRENCE OF TWO-THIRDS OF EACH HOUSE AND OF THREE-FOURTHS OF THE
STATES WAS NEEDED FOR THE POLITICAL CHECK TO BE ADEQUATE.  TO ALLOW A
SIMPLE MAJORITY OF CONGRESS TO HAVE FINAL SAY ON MATTERS OF
CONSTITUTIONAL INTERPRETATION IS THEREFORE FUNDAMENTALLY OUT OF KEEPING
WITH THE CONSTITUTIONAL STRUCTURE.  NOR IS THAT STRUCTURE ADEQUATELY
PROTECTED BY A REQUIREMENT THAT THE JUDICIARY BE ABLE TO PERCEIVE A
BASIS FOR THE CONGRESSIONAL INTERPRETATION, THE ONLY RESTRICTION LAID
DOWN IN KATZENBACH V. MORGAN, 384 U.S. 641 (1966). 

IT IS SUGGESTED THAT THE PROPER BASIS FOR THE DOCTRINE ENUNCIATED IN
MORGAN LIES IN THE RELATIVE FACTFINDING COMPETENCE OF COURT, CONGRESS,
AND STATE LEGISLATURES.  POST, AT 246-249.  IN THIS VIEW, AS I
UNDERSTAND IT, SINCE CONGRESS IS AT LEAST AS WELL QUALIFIED AS A STATE
LEGISLATURE TO DETERMINE FACTUAL ISSUES, AND FAR BETTER QUALIFIED THAN
THIS COURT, WHERE A DISPUTES IS BASICALLY FACTUAL IN NATURE THE
CONGRESSIONAL FINDING OF FACT SHOULD CONTROL, SUBJECT ONLY TO REVIEW BY
THIS COURT FOR REASONABLENESS. 

IN THE FIRST PLACE, THIS ARGUMENT HAS LITTLE OR NO FORCE AS APPLIED
TO THE ISSUE WHETHER THE FOURTEENTH AMENDMENT COVERS VOTER
QUALIFICATIONS.  INDEED, I DO NOT UNDERSTAND THE ADHERENTS OF MORGAN TO
MAINTAIN THE CONTRARY.  BUT EVEN ON THE ASSUMPTION THAT THE FOURTEENTH
AMENDMENT DOES PLACE A LIMIT ON THE SORTS OF VOTER QUALIFICATIONS WHICH
A STATE MAY ADOPT, I STILL DO NOT SEE ANY REAL FORCE IN THE REASONING. 

WHEN MY BROTHERS REFER TO "COMPLEX FACTUAL QUESTIONS," POST, AT 248,
THEY CALL TO MIND DISPUTES ABOUT PRIMARY, OBJECTIVE FACTS DEALING WITH
SUCH ISSUES AS THE NUMBER OF PERSONS BETWEEN THE AGES OF 18 AND 21, THE
EXTENT OF THEIR EDUCATION, AND SO FORTH.  THE BRIEFS OF THE FOUR STATES
IN THESE CASES TAKE NO ISSUE WITH RESPECT TO ANY OF THE FACTS OF THIS
NATURE PRESENTED TO CONGRESS AND RELIED ON BY MY BROTHERS DOUGLAS,
ANTE, AT 141-143, AND BRENNAN, WHITE, AND MARSHALL, POST, AT 243-246,
279-280.  EXCEPT FOR ONE OR TWO MATTERS OF DUBIOUS RELEVANCE, THESE
FACTS ARE NOT SUBJECT TO RATIONAL DISPUTE.  THE DISAGREEMENT IN THESE
CASES REVOLVES AROUND THE EVALUATION OF THIS LARGELY UNCONTESTED
FACTUAL MATERIAL.  /87/  ON THE ASSUMPTION THAT MATURITY AND EXPERIENCE
ARE RELEVANT TO INTELLIGENT AND RESPONSIBLE EXERCISE OF THE ELECTIVE
FRANCHISE, ARE THE IMMATURITY AND INEXPERIENCE OF THE AVERAGE 18-, 19-,
OR 20-YEAR-OLD SUFFICIENTLY SERIOUS TO JUSTIFY DENYING SUCH A PERSON A
DIRECT VOICE IN DECISIONS AFFECTING HIS OR HER LIFE?  WHETHER OR NOT
THIS JUDGMENT IS CHARACTERIZED AS "FACTUAL," IT CALLS FOR STRIKING A
BALANCE BETWEEN INCOMMENSURATE INTERESTS.  WHERE THE BALANCE IS TO BE
STRUCK DEPENDS ULTIMATELY ON THE VALUES AND THE PERSPECTIVE OF THE
DECISIONMAKER.  IT IS A MATTER AS TO WHICH MEN OF GOOD WILL CAN AND DO
REASONABLY DIFFER. 

I FULLY AGREE THAT JUDGMENTS OF THE SORT INVOLVED HERE ARE BEYOND
THE INSTITUTIONAL COMPETENCE AND CONSTITUTIONAL AUTHORITY OF THE
JUDICIARY.  SEE, E.G., BAKER V. CARR, 369 U.S. 186, 266-330 (1962)
(FRANKFURTER, J., DISSENTING); KRAMER V. UNION SCHOOL DISTRICT, 395
U.S. 621, 634-641 (1969) (STEWART, J., DISSENTING).  THEY ARE PRE
EMINENTLY MATTERS FOR LEGISLATIVE DISCRETION, WITH JUDICIAL REVIEW, IF
IT EXISTS AT ALL, NARROWLY LIMITED.  BUT THE SAME REASONS WHICH IN MY
VIEW WOULD REQUIRE THE JUDICIARY TO SUSTAIN A REASONABLE STATE
RESOLUTION OF THE ISSUE ALSO REQUIRE CONGRESS TO ABSTAIN FROM ENTERING
THE PICTURE. 

JUDICIAL DEFERENCE IS BASED, NOT ON RELATIVE FACTFINDING COMPETENCE,
BUT ON DUE REGARD FOR THE DECISION OF THE BODY CONSTITUTIONALLY
APPOINTED TO DECIDE.  ESTABLISHMENT OF VOTING QUALIFICATIONS IS A
MATTER FOR STATE LEGISLATURES.  ASSUMING ANY AUTHORITY AT ALL, ONLY
WHEN THE COURT CAN SAY WITH SOME CONFIDENCE THAT THE LEGISLATURE HAS
DEMONSTRABLY ERRED IN ADJUSTING THE COMPETING INTERESTS IS IT JUSTIFIED
IN STRIKING DOWN THE LEGISLATIVE JUDGMENT.  THIS ORDER OF THINGS IS
MORE EFFICIENT AND MORE CONGENIAL TO OUR SYSTEM AND, IN MY JUDGMENT,
MUCH MORE LIKELY TO ACHIEVE SATISFACTORY RESULTS THAN ONE IN WHICH THE
COURT HAS A FREE HAND TO REPLACE STATE LEGISLATIVE JUDGMENTS WITH ITS
OWN.  SEE FERGUSON V. SKRUPA, 372 U.S. 726 (1963). 

THE SAME CONSIDERATIONS APPLY, AND WITH ALMOST EQUAL FORCE, TO
CONGRESS' DISPLACEMENT OF STATE DECISIONS WITH ITS OWN IDEAS OF WISE
POLICY.  THE SOLE DISTINCTION BETWEEN CONGRESS AND THE COURT IN THIS
REGARD IS THAT CONGRESS, BEING AN ELECTIVE BODY, PRESUMPTIVELY HAS
POPULAR AUTHORITY FOR THE VALUE JUDGMENT IT MAKES.  BUT SINCE THE STATE
LEGISLATURE HAS A LIKE AUTHORITY, THIS DISTINCTION BETWEEN CONGRESS AND
THE JUDICIARY FALLS SHORT OF JUSTIFYING A CONGRESSIONAL VETO ON THE
STATE JUDGMENT.  THE PERSPECTIVES AND VALUES OF NATIONAL LEGISLATORS ON
THE ISSUE OF VOTING QUALIFICATIONS ARE LIKELY TO DIFFER FROM THOSE OF
STATE LEGISLATORS, BUT I SEE NO REASON A PRIORI TO PREFER THOSE OF THE
NATIONAL FIGURES, WHOSE COLLECTIVE DECISION, APPLYING NATIONWIDE, IS
NECESSARILY LESS ABLE TO TAKE ACCOUNT OF PECULIAR LOCAL CONDITIONS. 
WHETHER ONE AGREES WITH THIS JUDGMENT OR NOT, IT IS THE ONE EXPRESSED
BY THE FRAMERS IN LEAVING VOTER QUALIFICATIONS TO THE STATES.  THE
SUPREMACY CLAUSE DOES NOT, AS MY COLLEAGUES SEEM TO ARGUE, REPRESENT A
JUDGMENT THAT FEDERAL DECISIONS ARE SUPERIOR TO THSOE OF THE STATES
WHENEVER THE TWO MAY DIFFER. 

TO BE SURE, MY COLLEAGUES DO NOT EXPRESSLY SAY THAT CONGRESS OR THIS
COURT IS EMPOWERED BY THE CONSTITUTION TO SUBSTITUTE ITS OWN JUDGMENT
FOR THOSE OF THE STATES.  HOWEVER, BEFORE SUSTAINING A STATE JUDGMENT
THEY REQUIRE A "CLEAR SHOWING THAT THE BURDEN IMPOSED IS NECESSARY TO
PROTECT A COMPELLING AND SUBSTANTIAL GOVERNMENTAL INTEREST."  /88/
POST, AT 238; SEE POST, AT 247 N. 30.  I SHOULD THINK THAT IF THE STATE
INTEREST WERE TRULY "COMPELLING" AND "SUBSTANTIAL," AND A CLEAR SHOWING
COULD BE MADE THAT THE VOTER QUALIFICATION WAS "NECESSARY" TO ITS
PRESERVATION, NO REASONABLE PERSON WOULD THINK THE QUALIFICATION
UNDESIRABLE.  EQUIVALENTLY, IF MY COLLEAGUES OR A MAJORITY OF CONGRESS
DEEM A GIVEN VOTING QUALIFICATION UNDESIRABLE AS A MATTER OF POLICY,
THEY MUST CONSIDER THAT THE STATE INTERESTS INVOLVED ARE NOT
"COMPELLING" OR "SUBSTANTIAL" OR THAT THEY CAN BE ADEQUATELY PROTECTED
IN OTHER WAYS.  IT FOLLOWS THAT MY COLLEAGUES MUST BE PREPARED TO HOLD
INVALID AS A MATTER OF FEDERAL CONSTITUTIONAL LAW ALL STATE VOTING
QUALIFICATIONS WHICH THEY DEEM UNWISE, AS WELL AS ALL SUCH
QUALIFICATIONS WHICH CONGRESS REASONABLY DEEMS UNWISE.  FOR THIS
REASON, I FIND THEIR ARGUMENT SUBJECT TO THE SAME OBJECTION AS IF IT
EXPLICITLY ACKNOWLEDGED SUCH A CONCLUSION. 

IT SEEMS TO ME THAT THE NOTION OF DEFERENCE TO CONGRESSIONAL
INTERPRETATION OF THE CONSTITUTION, WHICH THE COURT PROMULGATED IN
MORGAN, IS DIRECTLY RELATED TO THIS HIGHER STANDARD OF
CONSTITUTIONALITY WHICH THE COURT INTIMATED IN HARPER V. VIRGINIA BOARD
OF ELECTIONS, 383 U.S. 663 (1966), AND BROUGHT TO FRUITION IN KRAMER. 
WHEN THE SCOPE OF FEDERAL REVIEW OF STATE DETERMINATIONS BECAME SO
BROAD AS TO BE JUDICIALLY UNMANAGEABLE, IT WAS NATURAL FOR THE COURT TO
SEEK ASSISTANCE FROM THE NATIONAL LEGISLATURE.  IF THE FEDERAL ROLE
WERE RESTRICTED TO ITS TRADITIONAL AND APPROPRIATE SCOPE, REVIEW FOR
THE SORT OF "PLAIN ERROR" WHICH IS VARIOUSLY DESCRIBED AS "ARBITRARY
AND CAPRICIOUS," "IRRATIONAL," OR "INVIDIOUS," THERE WOULD BE NO CALL
FOR THE COURT TO DEFER TO A CONGRESSIONAL JUDGMENT ON THIS SCORE THAT
IT DID NOT FIND CONVINCING.  WHETHER A STATE JUDGMENT HAS SO EXCEEDED
THE BOUNDS OF REASON AS TO AUTHORIZE FEDERAL INTERVENTION IS NOT A
MATTER AS TO WHICH THE POLITICAL PROCESS IS INTRINSICALLY LIKELY TO
PRODUCE A SOUNDER OR MORE ACCEPTABLE RESULT.  IT IS A MATTER OF THE
DELICATE ADJUSTMENT OF THE FEDERAL SYSTEM.  IN THIS AREA, TO RELY ON
CONGRESS WOULD MAKE THAT BODY A JUDGE IN ITS OWN CAUSE.  THE ROLE OF
FINAL ARBITER BELONGS TO THIS COURT. 

        III 

SINCE I CANNOT AGREE THAT THE FOURTEENTH AMENDMENT EMPOWERED
CONGRESS, OR THE FEDERAL JUDICIARY, TO CONTROL VOTER QUALIFICATIONS, I
TURN TO OTHER ASSERTED SOURCES OF CONGRESSIONAL POWER.  MY BROTHER
BLACK WOULD FIND THAT SUCH POWER EXISTS WITH RESPECT TO FEDERAL
ELECTIONS BY VIRTUE OF ART. I, SEC. 4, AND SEEMINGLY OTHER
CONSIDERATIONS THAT HE FINDS IMPLICIT IN FEDERAL AUTHORITY. 

THE CONSTITUTIONAL PROVISIONS CONTROLLING THE REGULATION OF
CONGRESSIONAL ELECTIONS ARE THE FOLLOWING: 

     ART. I, SEC. 2:  "THE ELECTORS (FOR REPRESENTATIVES) IN EACH

  STATE SHALL HAVE THE QUALIFICATIONS REQUISITE FOR ELECTORS OF THE

MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE." 

     "ART. I, SEC. 4:  "THE TIMES, PLACES, AND MANNER OF HOLDING

ELECTIONS FOR SENATORS AND REPRESENTATIVES, SHALL BE PRESCRIBED

  IN EACH STATE BY THE LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT

  ANY TIME BY LAW MAKE OR ALTER SUCH REGULATIONS, EXCEPT AS TO THE

  PLACES OF CHUSING SENATORS." 

 AMDT. XVII:  "THE ELECTORS (FOR SENATORS) IN EACH STATE SHALL

  HAVE THE QUALIFICATIONS REQUISITE FOR ELECTORS OF THE MOST

  NUMEROUS BRANCH OF THE STATE LEGISLATURES." 

IT IS DIFFICULT TO SEE HOW WORDS COULD BE CLEARER IN STATING WHAT
CONGRESS CAN CONTROL AND WHAT IT CANNOT CONTROL.  SURELY NOTHING IN
THESE PROVISIONS LENDS ITSELF TO THE VIEW THAT VOTING QUALIFICATIONS IN
FEDERAL ELECTIONS ARE TO BE SET BY CONGRESS.  THE REASON FOR THE SCHEME
IS NOT HARD TO FIND.  IN THE CONSTITUTIONAL CONVENTION, MADISON
EXPRESSED THE VIEW THAT:  "THE QUALIFICATIONS OF ELECTORS AND ELECTED
WERE FUNDAMENTAL ARTICLES IN A REPUBLICAN GOVT. AND OUGHT TO BE FIXED
BY THE CONSTITUTION.  IF THE LEGISLATURE COULD REGULATE THOSE OF
EITHER, IT CAN BY DEGREES SUBVERT THE CONSTITUTION."  2
M.FARRAND,RECORDS OF THE FEDERAL CONVENTION OF 1787, PP. 249-250
(1911).  HE EXPLAINED FURTHER IN THE FEDERALIST NO. 52, P. 326 (C.
ROSSITER ED. 1961): 

"TO HAVE REDUCED THE DIFFERENT QUALIFICATIONS IN THE DIFFERENT
STATES TO ONE UNIFORM RULE WOULD PROBABLY HAVE BEEN AS DISSATISFACTORY
TO SOME OF THE STATES AS IT WOULD HAVE BEEN DIFFICULT TO THE
CONVENTION.  THE PROVISION MADE BY THE CONVENTION APPEARS, THEREFORE,
TO BE THE BEST THAT LAY WITHIN THEIR OPTION.  IT MUST BE SATISFACTORY
TO EVERY STATE, BECAUSE IT IS CONFORMABLE TO THE STANDARD ALREADY
ESTABLISHED, OR WHICH MAY BE ESTABLISHED, BY THE STATE ITSELF.  IT WILL
BE SAFE TO THE UNITED STATES BECAUSE, BEING FIXED BY THE STATE
CONSTITUTIONS, IT IS NOT ALTERABLE BY THE STATE GOVERNMENTS, AND IT
CANNOT BE FEARED THAT THE PEOPLE OF THE STATES WILL ALTER THIS PART OF
THEIR CONSTITUTIONS IN SUCH A MANNER AS TO ABRIDGE THE RIGHTS SECURED
TO THEM BY THE FEDERAL CONSTITUTION."  SEE ALSO FEDERALIST NO. 60, P.
371 (C. ROSSITER ED. 1961) (HAMILTON), QUOTED IN THE OPINION OF MR.
JUSTICE STEWART, POST, AT 290, WHICH IS TO THE SAME EFFECT. 

AS TO PRESIDENTIAL ELECTIONS, THE CONSTITUTION PROVIDES: 

     "EACH STATE SHALL APPOINT, IN SUCH MANNER AS THE LEGISLATURE

  THEREOF MAY DIRECT, A NUMBER OF ELECTORS.  . . . "  ART. II, SEC.

  1, CL. 2. 

     "THE CONGRESS MAY DETERMINE THE TIME OF CHUSING THE ELECTORS,

  AND THE DAY ON WHICH THEY SHALL GIVE THEIR VOTES; WHICH DAY SHALL

BE THE SAME THROUGHOUT THE UNITED STATES."  ART. II, SEC. 1, CL.

  4. 

EVEN THE POWER TO CONTROL THE "MANNER" OF HOLDING ELECTIONS, GIVEN WITH
RESPECT TO CONGRESSIONAL ELECTIONS BY ART. I, SEC. 4, IS ABSENT WITH
RESPECT TO THE SELECTION OF PRESIDENTIAL ELECTORS.  /89/  AND, OF
COURSE, THE FACT THAT IT WAS DEEMED NECESSARY TO PROVIDE SEPARATELY FOR
CONGRESSIONAL POWER TO REGULATE THE TIME OF CHOOSING PRESIDENTIAL
ELECTORS AND THE PRESIDENT HIMSELF DEMONSTRATES THAT THE POWER OVER
"TIMES, PLACES AND MANNER" GIVEN BY ART. I, SEC. 4, DOES NOT REFER TO
PRESIDENTIAL ELECTIONS, BUT ONLY TO THE ELECTIONS FOR CONGRESSMEN.  ANY
SHADOW OF A JUSTIFICATION FOR CONGRESSIONAL POWER WITH RESPECT TO
CONGRESSIONAL ELECTIONS THEREFORE DISAPPEARS UTTERLY IN PRESIDENTIAL
ELECTIONS. 

        IV 

WITH THESE MAJOR CONTENTIONS RESOLVED, IT IS CONVENIENT TO CONSIDER
THE THREE SECTIONS OF THE ACT INDIVIDUALLY TO DETERMINE WHETHER THEY
CAN BE SUPPORTED BY ANY OTHER BASIS OF CONGRESSIONAL POWER. 

A. VOTING AGE 

THE ONLY CONSTITUTIONAL BASIS ADVANCED IN SUPPORT OF THE LOWERING OF
THE VOTING AGE IS THE POWER TO ENFORCE THE EQUAL PROTECTION CLAUSE, A
POWER FOUND IN SEC. 5 OF THE FOURTEENTH AMENDMENT.  FOR THE REASONS
ALREADY GIVEN, IT CANNOT BE SAID THAT THE STATUTORY PROVISION IS VALID
AS DECLARATORY OF THE MEANING OF THAT CLAUSE.  ITS VALIDITY THEREFORE
MUST REST ON CONGRESSIONAL POWER TO LOWER THE VOTING AGE AS A MEANS OF
PREVENTING INVIDIOUS DISCRIMINATION THAT IS WITHIN THE PURVIEW OF THAT
CLAUSE. 

THE HISTORY OF THE FOURTEENTH AMENDMENT MAY WELL FORECLOSE THE
POSSIBILITY THAT SEC. 5 EMPOWERS CONGRESS TO ENFRANCHISE A CLASS OF
CITIZENS SO THAT THEY MAY PROTECT THEMSELVES AGAINST DISCRIMINATION
FORBIDDEN BY THE FIRST SECTION, BUT IT IS UNNECESSARY FOR ME TO EXPLORE
THAT QUESTION.  FOR I THINK IT FAIR TO SAY THAT THE SUGGESTION THAT
MEMBERS OF THE AGE GROUP BETWEEN 18 AND 21 ARE THREATENED WITH
UNCONSTITUTIONAL DISCRIMINATION, OR THAT ANY HYPOTHETICAL
DISCRIMINATION IS LIKELY TO BE AFFECTED BY LOWERING THE VOTING AGE, IS
LITTLE SHORT OF FANCIFUL.  I SEE NO JUSTIFICATION FOR STRETCHING TO
FIND ANY SUCH POSSIBILITY WHEN ALL THE EVIDENCE INDICATES THAT CONGRESS
- LED ON BY RECENT DECISIONS OF THIS COURT-- THOUGHT SIMPLY THAT 18
YEAR-OLDS WERE FAIRLY ENTITLED TO THE VOTE AND THAT CONGRESS COULD GIVE
IT TO THEM BY LEGISLATION.  /90/ 

I THEREFORE CONCLUDE, FOR THESE AND OTHER REASONS GIVEN IN THIS
OPINION, THAT IN SEC. 302 OF THE VOTING RIGHTS ACT AMENDMENTS OF 1970
CONGRESS EXCEEDED ITS DELEGATED POWERS. 

        B. RESIDENCY 

FOR REASONS ALREADY STATED, NEITHER THE POWER TO REGULATE VOTING
QUALIFICATIONS IN PRESIDENTIAL ELECTIONS, ASSERTED BY MY BROTHER BLACK,
NOR THE POWER TO DECLARE THE MEANING OF SEC. 1 OF THE FOURTEENTH
AMENDMENT, RELIED ON BY MY BROTHER BLACK, NOR THE POWER TO DECLARE THE
MEANING OF SEC. 1 OF THE FOURTEENTH AMENDMENT, RELIED ON BY MY BROTHER
DOUGLAS, CAN SUPPORT SEC. 202 OF THE ACT.  IT WOULD ALSO BE FRIVOLOUS
TO CONTEND THAT REQUIRING STATES TO ALLOW NEW ARRIVALS TO VOTE IN
PRESIDENTIAL ELECTIONS IS AN APPROPRIATE MEANS OF PREVENTING LOCAL
DISCRIMINATION AGAINST THEM IN OTHER RESPECTS, OR OF FORESTALLING
VIOLATIONS OF THE FIFTEENTH AMENDMENT.  THE REMAINING GROUNDS RELIED ON
ARE THE PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV, SEC. 2, /91/  AND
THE RIGHT TO TRAVEL ACROSS STATE LINES. 

WHILE THE RIGHT OF QUALIFIED ELECTORS TO CAST THEIR BALLOTS AND TO
HAVE THEIR VOTES COUNTED WAS HELD TO BE A PRIVILEGE OF CITIZENSHIP IN
EX PARTE YARBROUGH, 110 U.S. 651 (1884), AND UNITED STATES V. CLASSIC,
313 U.S. 299 (1941), THESE DECISIONS WERE CAREFUL TO OBSERVE THAT IT
REMAINED WITH THE STATES TO DETERMINE THE CLASS OF QUALIFIED VOTERS. 
IT WAS FEDERAL LAW, ACTING ON THIS STATE-DEFINED CLASS, WHICH TURNED
THE RIGHT TO VOTE INTO A PRIVILEGE OF NATIONAL CITIZENSHIP.  AS THE
COURT HAS CONSISTENTLY HELD, THE PRIVILEGES AND IMMUNITIES CLAUSES DO
NOT REACT ON THE MERE STATUS OF CITIZENSHIP TO ENFRANCHISE ANY CITIZEN
WHOM AN OTHERWISE VALID STATE LAW DOES NOT ALLOW TO VOTE.  MINOR V.
HAPPERSETT, 21 WALL.  162, 170-175 (1875); POPE V. WILLIAMS, 193 U.S.
621, 632 (1904); BREEDLOVE V. SUTTLES, 302 U.S. 277, 283 (1937); CF.
SNOWDEN V. HUGHES, 321 U.S. 1 6-7, (1944).  MINORS, FELONS, INSANE
PERSONS, AND PERSONS WHO HAVE NOT SATISFIED RESIDENCY REQUIREMENTS ARE
AMONG THOSE CITIZENS WHO ARE NOT ALLOWED TO VOTE IN MOST STATES.  /92/
THE PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV OF THE CONSTITUTION IS
A DIRECT DESCENDENT OF ART. IV OF THE ARTICLES OF CONFEDERATION: 

     "THE BETTER TO SECURE AND PERPETUATE MUTUAL FRIENDSHIP AND

  INTERCOURSE AMONG THE PEOPLE OF THE DIFFERENT STATES IN THIS

  UNION, THE FREE INHABITANTS OF EACH OF THESE STATES, PAUPERS,

  VAGABONDS, AND FUGITIVES FROM JUSTICE EXCEPTED, SHALL BE ENTITLED

TO ALL PRIVILEGES AND IMMUNITIES OF FREE CITIZENS IN THE SEVERAL

  STATES.  . . . "

IT IS INCONCEIVABLE THAT THESE WORDS WHEN USED IN THE ARTICLES COULD
HAVE BEEN UNDERSTOOD TO ABOLISH STATE DURATIONAL RESIDENCY
REQUIREMENTS.  /93/  THERE IS NOT A VESTIGE OF EVIDENCE THAT ANY
FURTHER EXTENT WAS ENVISIONED FOR THEM WHEN THEY WERE CARRIED OVER INTO
THE CONSTITUTION.  AND, AS I HAVE SHOWN, WHEN THEY WERE SUBSTANTIALLY
REPEATED IN SEC. 1 OF THE FOURTEENTH AMENDMENT IT WAS AFFIRMATIVELY
UNDERSTOOD THAT THEY DID NOT INCLUDE THE RIGHT TO VOTE.  THE PRIVILEGES
AND IMMUNITIES CLAUSE IS THEREFORE UNAVAILING TO SUSTAIN ANY PORTION OF
SEC. 202.     THE RIGHT TO TRAVEL ACROSS STATE LINES, SEE UNITED STATES
V. GUEST, 383 U.S. 745, 757-758 (1966), AND SHAPIRO V. THOMPSON, 394
U.S. 618, 630 (1969), IS LIKEWISE INSUFFICIENT TO REQUIRE IDAHO TO
CONFORM ITS LAWS TO THE REQUIREMENTS OF SEC. 202.  MR. JUSTICE STEWART
JUSTIFIES SEC. 202 SOLELY ON THE POWER UNDER SEC. 5 OF THE FOURTEENTH
AMENDMENT TO ENFORCE THE PRIVILEGES AND IMMUNITIES CLAUSE OF SEC. 1
WHICH HE DEEMS THE BASIS FOR THE RIGHT TO TRAVEL.  POST, AT 285-287.  I
FIND IT IMPOSSIBLE TO SQUARE THE POSITION THAT SEC. 5 AUTHORIZES
CONGRESS TO ABOLISH STATE VOTING QUALIFICATIONS BASED ON RESIDENCY WITH
THE POSITION THAT IT DOES NOT AUTHORIZE CONGRESS TO ABOLISH SUCH
QUALIFICATIONS BASED ON RACE.  SINCE THE HISTORICAL RECORD COMPELS ME
TO ACCEPT THE LATTER POSITION, I MUST REJECT THE FORMER. 

MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, AND MR. JUSTICE MARSHALL DO
NOT ANCHOR THE RIGHT OF INTERSTATE TRAVEL TO ANY SPECIFIC
CONSTITUTIONAL PROVISION.  POST, AT 237-238.  PAST DECISIONS TO WHICH
THEY REFER HAVE RELIED ON THE TWO PRIVILEGES AND IMMUNITIES CLAUSES,
JUST DISCUSSED, THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, AND THE
COMMERCE CLAUSE.  SEE SHAPIRO V. THOMPSON, 394 U.S.,AT 630 N. 8; ID.,
AT 663-671 (DISSENTING OPINION).  THE FIFTH AMENDMENT IS WHOLLY
INAPPLICABLE TO STATE LAWS; AND SURELY THE COMMERCE CLAUSE CANNOT BE
SERIOUSLY RELIED ON TO SUSTAIN THE ACT HERE CHALLENGED.  WITH NO
SPECIFIC CLAUSE OF THE CONSTITUTION EMPOWERING CONGRESS TO ENACT SEC.
202, I FAIL TO SEE HOW THAT NEBULOUS JUDICIAL CONSTRUCT, THE RIGHT TO
TRAVEL, CAN DO SO.

        C. LITERACY 

THE REMAINING PROVISION OF THE VOTING RIGHTS ACT AMENDMENTS INVOLVED
IN THESE CASES IS THE FIVE-YEAR SUSPENSION OF ARIZONA'S REQUIREMENT
THAT REGISTRANTS BE ABLE TO READ THE CONSTITUTION IN ENGLISH AND TO
WRITE THEIR NAMES.  ALTHOUGH THE ISSUE IS NOT FREE FROM DIFFICULTY, I
AM OF THE OPINION THAT THIS PROVISION CAN BE SUSTAINED AS A VALID MEANS
OF ENFORCING THE FIFTEENTH AMENDMENT. 

DESPITE THE LACK OF EVIDENCE OF SPECIFIC INSTANCES OF DISCRIMINATORY
APPLICATION OR EFFECT, CONGRESS COULD HAVE DETERMINED THAT RACIAL
PREJUDICE IS PREVALENT THROUGHOUT THE NATION, AND THAT LITERACY TESTS
UNDULY LEND THEMSELVES TO DISCRIMINATORY APPLICATION, EITHER CONSCIOUS
OR UNCONSCIOUS.  /94/  THIS DANGER OF VIOLATION OF SEC. 1 OF THE
FIFTEENTH AMENDMENT WAS SUFFICIENT TO AUTHORIZE THE EXERCISE OF
CONGRESSIONAL POWER UNDER SEC. 2. 

WHETHER TO ENGAGE IN A MORE PARTICULARIZED INQUIRY INTO THE EXTENT
AND EFFECTS OF DISCRIMINATION, EITHER AS A CONDITION PRECEDENT OR AS A
CONDITION SUBSEQUENT TO SUSPENSION OF LITERACY TESTS, WAS A CHOICE FOR
CONGRESS TO MAKE.  /95/  THE FACT THAT THE SUSPENSION IS ONLY FOR FIVE
YEARS WILL REQUIRE CONGRESS TO RE-EVALUATE AT THE CLOSE OF THAT
PERIOD.  WHILE A LESS SWEEPING APPROACH IN THIS DELICATE AREA MIGHT
WELL HAVE BEEN APPROPRIATE, THE CHOICE WHICH CONGRESS MADE WAS WITHIN
THE RANGE OF THE REASONABLE.  /96/  I THEREFORE AGREE THAT SEC. 201 OF
THE ACT IS A VALID EXERCISE OF CONGRESSIONAL POWER TO THE EXTENT IT IS
INVOLVED IN THIS CASE.  I EXPRESS NO VIEW ABOUT ITS VALIDITY AS APPLIED
TO SUSPEND TESTS SUCH AS EDUCATIONAL QUALIFICATIONS, WHICH DO NOT LEND
THEMSELVES SO READILY TO DISCRIMINATORY APPLICATION OR EFFECT. 

FOR REASONS EXPRESSED IN THIS OPINION, I WOULD GRANT THE RELIEF
REQUESTED IN NOS. 43, ORIG., AND 44, ORIG.  I WOULD DISMISS THE
COMPLAINT IN NO. 47, ORIG., FOR FAILURE TO STATE A CLAIM ON WHICH
RELIEF CAN BE GRANTED.  IN NO. 46, ORIG., I WOULD GRANT DECLARATORY
RELIEF WITH RESPECT TO THE VALIDITY OF SEC. 201 OF THE VOTING RIGHTS
ACT AMENDMENTS AS APPLIED TO ARIZONA'S CURRENT LITERACY TEST; I WOULD
DENY RELIEF IN ALL OTHER RESPECTS, WITH LEAVE TO REAPPLY TO THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA FOR INJUNCTIVE RELIEF
IN THE EVENT IT PROVES NECESSARY, WHICH I AM CONFIDENT IT WILL NOT. 

        V 

IN CONCLUSION I ADD THE FOLLOWING.  THE CONSIDERATION THAT HAS
TROUBLED ME MOST IN DECIDING THAT THE 18-YEAR-OLD AND RESIDENCY
PROVISIONS OF THIS LEGISLATION SHOULD BE HELD UNCONSTITUTIONAL IS
WHETHER I OUGHT TO REGARD THE DOCTRINE OF STARE DECISIS AS PREVENGINT
ME FROM ARRIVING AT THAT RESULT.  FOR AS I INDICATED AT THE OUTSET OF
THIS OPINION, WERE I TO CONTINUE TO CONSIDER MYSELF CONSTRICTED BY
RECENT PAST DECISIONS HOLDING THAT THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT REACHES STATE ELECTORAL PROCESSES, I WOULD,
PARTICULARLY PERFORCE OF THE DECISIONS CITED IN N. 84, SUPRA, BE LED TO
CAST MY VOTE WITH THOSE OF MY BRETHREN WHO ARE OF THE OPINION THAT THE
LOWERING OF THE VOTING AGE AND THE ABOLITION OF STATE RESIDENCY
REQUIREMENTS IN PRESIDENTIAL ELECTIONS ARE WITHIN THE ORDINARY
LEGISLATIVE POWER OF CONGRESS. 

AFTER MUCH REFLECTION I HAVE REACHED THE CONCLUSION THAT I OUGHT NOT
TO ALLOW STARE DECISIS TO STAND IN THE WAY OF CASTING MY VOTE IN
ACCORDANCE WITH WHAT I AM DEEPLY CONVINCED THE CONSTITUTION DEMANDS. 
IN THE ANNALS OF THIS COURT FEW DEVELOPMENTS IN THE MARCH OF EVENTS
HAVE SO IMPERATIVELY CALLED UPON US TO TAKE A FRESH HARD LOOK AT PAST
DECISIONS, WHICH COULD WELL BE MUSTERED IN SUPPORT OF SUCH
DEVELOPMENTS, AS DO THE LEGISLATIVE LOWERING OF THE VOTING AGE, AND,
ALBEIT TO A LESSER EXTENT, THE ELIMINATION OF STATE RESIDENTIAL
REQUIREMENTS IN PRESIDENTIAL ELECTIONS.  CONCLUDING, AS I HAVE, THAT
SUCH DECISIONS CANNOT WITHSTAND CONSTITUTIONAL SCRUTINY, I THINK IT MY
DUTY TO DEPART FROM THEM, RATHER THAN TO LEND MY SUPPORT TO
PERPETUATING THEIR CONSTITUTIONAL ERROR IN THE NAME OF STARE DECISIS. 

IN TAKING THIS POSITION, I FEEL FORTIFIED BY THE EVENT MALAISE AMONG
THE MEMBERS OF THE COURT WITH THOSE DECISIONS.  DESPITE THEM, A
MAJORITY OF THE COURT HOLDS THAT THIS CONGRESSIONAL ATTEMPT TO LOWER
THE VOTING AGE BY SIMPLE LEGISLATION IS UNCONSTITUTIONAL, INSOFAR AS IT
RELATES TO STATE ELECTIONS.  DESPITE THEM, FOUR MEMBERS OF THE COURT
TAKE THE SAME VIEW OF THIS LEGISLATION WITH RESPECT TO FEDERAL
ELECTIONS AS WELL; AND THE FIFTH MEMBER OF THE COURT WHO CONSIDERS THE
LEGISLATION CONSTITUTIONALLY INFIRM AS REGARDS STATE ELECTIONS RELIES
NOT AT ALL ON ANY OF THOSE DECISIONS IN REACHING THE OPPOSITE
CONCLUSION IN FEDERAL ELECTIONS.  AND OF THE EIGHT MEMBERS OF THE COURT
WHO VOTE TO UPHOLD THE RESIDENTIAL PROVISION OF THE STATUTE, ONLY FOUR
APPEAR TO RELY UPON ANY OF THOSE DECISIONS IN REACHING THAT RESULT. 

IN THESE CIRCUMSTANCES I AM SATISFIED THAT I AM FREE TO DECIDE THESE
CASES UNSHACKLED BY A LINE OF DECISIONS WHICH I HAVE FELT FROM THE
START ENTAILED A BASIC DEPARTURE FROM SOUND CONSTITUTIONAL PRINCIPLE. 

/1/  THE ATTORNEY GENERAL OF THE UNITED STATES, A CITIZEN OF NEW
YORK, IS NAMED AS DEFENDANT.  THE JURISDICITONAL BASIS ALLEGED IS ART.
III, SEC. 2, WHICH GIVES THIS COURT ORIGINAL JURISDICTION OVER
CONTROVERSIES BETWEEN A STATE AND A CITIZEN IN ANOTHER STATE.  WE HELD
A SIMILAR SUIT JUSTICIABLE AND OTHERWISE WITHIN OUR ORIGINAL
JURISDICTION IN SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301, 307
(1966).  THE PARTIES HAVE NOT ASKED US TO RE-EXAMINE THE VALIDITY OF
THAT RULING, AND SINCE THE COURT HAS NOT UNDERTAKEN TO DO SO, I AM
CONTENT TO SUSTAIN JURISDICTION ON THE AUTHORITY OF THAT DECISION. 

/2/  IN RESPONSE TO INQUIRIES FROM THE ATTORNEY GENERAL, ARIZONA,
OREGON, AND TEXAS INDICATED WILLINGNESS TO ABIDE BY SEC. 202 OF THE
ACT, GOVERNING RESIDENCY, REGISTRATION, AND ABSENTEE VOTING IN
PRESIDENTIAL ELECTIONS AND TO CONFORM CONFLICTING STATE LAWS. 

/3/  THE ACCOUNT IN THE TEXT IS LARGELY DRAWN FROM J. JAMES, THE
FRAMING OF THE FOURTEENTH AMENDMENT (1956) (HEREAFTER JAMES), AND TO
SOME EXTENT FROM W. GILLETTE, THE RIGHT TO VOTE:  POLITICS AND THE
PASSAGE OF THE FIFTEENTH AMENDMENT (1969) (HEREAFTER GILLETTE), AND B.
KENDRICK, THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON
RECONSTRUCTION (1914) (HEREAFTER KENDRICK), AS WELL. 

/4/  "REPRESENTATIVES AND DIRECT TAXES SHALL BE APPORTIONED AMONG
THE SEVERAL STATES WHICH MAY BE INCLUDED WITHIN THIS UNION, ACCORDING
TO THEIR RESPECTIVE NUMBERS, WHICH SHALL BE DETERMINED BY ADDING TO THE
WHOLE NUMBER OF FREE PERSONS, INCLUDING THOSE BOUND TO SERVICE FOR A
TERM OF YEARS, AND EXCLUDING INDIANS NOT TAXED, THREE FIFTHS OF ALL
OTHER PERSONS." 

/5/  SEE INFRA, AT 209-212, FOR THE TEXT OF THESE PROVISIONS, AND
FOR DISCUSSION OF THE CONTENTION THAT THEY EMPOWER CONGRESS TO SET
QUALIFICATIONS OF VOTERS IN FEDERAL ELECTIONS. 

/6/  "THE UNITED STATES SHALL GUARANTEE TO EVERY STATE IN THIS UNION
A REPUBLICAN FORM OF GOVERNMENT." 

/7/  E.G., PROCLAMATION OF MAY 29, 1865, 13 STAT. 760 (NORTH
CAROLINA). 

/8/  THE TEXTS OF THE STATE CONSTITUTIONS ARE MOST READILY AVAILABLE
IN F. THORPE, THE FEDERAL AND STATE CONSTITUTIONS (1909).  THE
QUALIFICATIONS IMPOSED BY THE VARIOUS STATES THREE YEARS LATER, WHEN
THE FIFTEENTH AMENDMENT WAS PROPOSED, ARE PRESENTED IN TABULAR FORM IN
HEARINGS ON THE VOTING RIGHTS BILL, S. 1564, BEFORE THE SENATE
COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., 128-129 (1965). 

/9/  JAMES 33. 

/10/  SEE GLOBE 209 (FREEDMEN'S BUREAU BILL); GLOBE 211 (CIVIL
RIGHTS BILL). 

/11/  WHILE FORMALLY FURTHER CONSIDERATION WAS POSTPONED UNTIL A
DATE IN APRIL, SIX WEEKS OFF, GLOBE 1095, IT WAS GENERALLY UNDERSTOOD
THAT "APRIL MEANS INDEFINITELY."  2 NATION 289 (MAR. 1, 1866), QUOTED
IN JAMES 87. 

/12/  THE ONLY CHANGE MADE IN SEC. 1 WAS THE ADDITION OF THE
CITIZENSHIP CLAUSE BY THE SENATE.  GLOBE 3041.  THE PRIMARY CHANGE MADE
IN SEC. 2 WAS TO CONDITION REDUCTION OF REPRESENTATION ON DENIAL OR
ABRIDGMENT OF THE RIGHT TO VOTE IN CERTAIN NAMED ELECTIONS, RATHER THAN
TO SPEAK GENERALLY OF DENIAL OR ABRIDGMENT OF "THE ELECTIVE
FRANCHISE."  IBID.  THAT SECTION NOW READS: 

"REPRESENTATIVES SHALL BE APPORTIONED AMONG THE SEVERAL STATES
ACCORDING TO THEIR RESPECTIVE NUMBERS, COUNTING THE WHOLE NUMBER OF
PERSONS IN EACH STATE, EXCLUDING INDIANS NOT TAXED.  BUT WHEN THE RIGHT
TO VOTE AT ANY ELECTION FOR THE CHOICE OF ELECTORS FOR PRESIDENT AND
VICE PRESIDENT OF THE UNITED STATES, REPRESENTATIVES IN CONGRESS, THE
EXECUTIVE AND JUDICIAL OFFICERS OF A STATE, OR THE MEMBERS OF THE
LEGISLATURE THEREOF, IS DENIED TO ANY OF THE MALE INHABITANTS OF SUCH
STATE, BEING TWENTY-ONE YEARS OF AGE, AND CITIZENS OF THE UNITED
STATES, OR IN ANY WAY ABRIDGED, EXCEPT FOR PARTICIPATION IN REBELLION,
OR OTHER CRIME, THE BASIS OF REPRESENTATION THEREIN SHALL BE REDUCED IN
THE PROPORTION WHICH THE NUMBER OF SUCH MALE CITIZENS SHALL BEAR TO THE
WHOLE NUMBER OF MALE CITIZENS TWENTY-ONE YEARS OF AGE IN SUCH STATE." 

/13/  SECTION 1 OF THAT ACT PROVIDED IN PART THAT "ALL PERSONS . . .
SHALL HAVE THE SAME RIGHT, IN EVERY STATE AND TERRITORY IN THE UNITED
STATES, TO MAKE AND ENFORCE CONTRACTS, TO SUE, BE PARTIES, AND GIVE
EVIDENCE, TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND
PERSONAL PROPERTY, AND TO FULL AND EQUAL BENEFIT OF ALL LAWS AND
PROCEEDINGS FOR THE SECURITY OF PERSONS AND PROPERTY, AS IS ENJOYED BY
WHITE CITIZENS, AND SHALL BE SUBJECT TO LIKE PUNISHMENT, PAINS, AND
PENALTIES, AND TO NONE OTHER, ANY LAW, STATUTE, ORDINANCE, REGULATION,
OR CUSTOM, TO THE CONTRARY NOTWITHSTANDING."  ACT OF APR. 9, 1866, SEC.
1, 14 STAT. 27. 

/14/  IN THIS CONNECTION PROFESSOR FAIRMAN'S ADMONITION OF 20 YEARS
AGO IS EVEN MORE FORCEFUL THAN IT WAS WHEN HE WROTE: 

"WE KNOW SO MUCH MORE ABOUT THE CONSTITUTIONAL LAW OF THE FOURTEENTH
AMENDMENT THAN THE MEN WHO ADOPTED IT THAT WE SHOULD REMIND OURSELVES
NOT TO BE SURPIRSED TO FIND THEM VAGUE WHERE WE WANT THEM TO PROVE
SHARP.  EIGHTY YEARS OF ADJUDICATION HAS TAUGHT US DISTINCTIONS AND
SUBTLETIES WHERE THE MEN OF 1866 DID NOT EVEN PERCEIVE THE NEED FOR
ANALYSIS."  FAIRMAN, DOES THE FOURTEENTH AMENDMENT INCORPORATE THE BILL
OF RIGHTS?, 2 STAN.L.REV.  5, 9 (1949). 

/15/  SEE, E.G., GLOBE 599 (SEN. TRUMBULL); GLOBE 1117 (CONG. WILSON
OF IOWA, QUOTING KENT'S COMMENTARIES AND BOUVIER'S LAW DICTIONARY);
GLOBE 1152 (CONG. THAYER).  THESE WERE SOME, HOWEVER, WHO CONSIDERED
THE DISTINCTION EITHER NONEXISTENT OR TOO UNCERTAIN TO BE A BASIS FOR
LEGISLATION.  E.G., GLOBE 477 (SEN. SAULSBURY); GLOBE 1157 (CONG.
THORNTON); GLOBE 1292-1293 (CONG. BINGHAM). 

IT HARDLY SEEMS NECESSARY TO POINT OUT THAT THE JURISPRUDENTIAL
CONCEPT OF "POLITICAL" AS OPPOSED TO "CIVIL" OR "NATURAL" RIGHTS BEARS
NO RELATION TO THAT CLASS OF NONJUSTICIABLE ISSUES PERHAPS
INAPPROPRIATELY KNOWN AS "POLITICAL QUESTIONS."  SEE THE OPINION OF MR.
JUSTICE DOUGLAS, ANTE, AT 137-140. 

/16/  SEE GENERALLY FAIRMAN, DOES THE FOURTEENTH AMENDMENT
INCORPORATE THE BILL OF RIGHTS?, 2 STAN.L.REV.  5 (1949), ESPECIALLY AT
8-9. 

/17/  THE REMARKS OF THESE THREE DEMOCRATS, NIBLACK, BOYER, AND
ROGERS, ARE DISCUSSED INFRA, AT 182-185.  ALSO DISCUSSED THERE ARE THE
REMARKS OF A FOURTH DEMOCRATIC REPRESENTATIVE, PHELPS, WHICH WERE
DELIVERED BEFORE THE START OF DEBATE ON THE PROPOSED FOURTEENTH
AMENDMENT. 

/18/  WHILE THIS PROVISION MIGHT SEEM USELESS IN LIGHT OF THE
FIFTEENTH AMENDMENT, IT WAS DOUBTLESS INTENDED TO PROHIBIT THE
IMPOSITION OF PROPERTY OR LITERACY QUALIFICATIONS WHICH, EVEN THOUGH
FAIRLY APPLIED, WOULD HAVE THE EFFECT OF DISFRANCHISING MOST OF THE
NEGROES.  THE RADICALS HAD SOUGHT TO PROHIBIT SUCH QUALIFICATIONS IN
THE FIFTEENTH AMENDMENT, BUT WERE UNSUCCESSFUL.  SEE GILLETTE 53, 56
62, 69-72, 76. 

/19/  WHILE THE HISTORY INDICATES THAT THE SUPPORTERS OF THE
FOURTEENTH AMENDMENT WOULD HAVE BEEN SURPRISED AT THE SUGGESTION THAT
THE AMENDMENT WOULD HAVE BEEN SURPRISED AT THE SUGGESTION THAT THE
AMENDMENT BROUGHT QUALIFICATIONS FOR STATE OFFICE UNDER FEDERAL
SUPERVISION, OFFICEHOLDING WAS NOT THE FOCUS OF ATTENTION DURING THE
CONSIDERATION OF THE AMENDMENT.  MOREOVER, STATE POWER TO SET VOTER
QUALIFICATIONS, UNLIKE STATE POWER TO SET QUALIFICATIONS FOR OFFICE, IS
EXPLICITLY RECOGNIZED NOT ONLY IN THE ORIGINAL CONSTITUTION BUT IN SEC.
2 OF THE FOURTEENTH AMENDMENT ITSELF.  WHETHER THESE DISTINCTIONS ARE
SUFFICIENT TO JUSTIFY TESTING STATE QUALIFICATIONS FOR OFFICE BY THE
FOURTEENTH AMENDMENT IS A MATTER NOT PRESENTED BY THESE CASES. 
WHERE THE STATE ACTION HAS A RACIAL BASIS, SEE ANDERSON V. MARTIN, 375
U.S. 399 (1964), I AM NOT PREPARED TO ASSUME THAT THE FIFTEENTH
AMENDMENT PROVIDES NO PROTECTION.  DESPITE THE STATEMENT IN THE OPINION
OF MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, AND MR. JUSTICE MARSHALL,
POST, AT 252, I WOULD FIND IT SURPRISING IF A STATE COULD UNDERCUT THE
RIGHT TO VOTE BY TAKING STEPS TO ENSURE THAT ALL CANDIDATES ARE
UNPALATABLE TO VOTERS OF A CERTAIN RACE.  ALTHOUGH AN EXPLICIT
PROVISION ON OFFICEHOLDING WAS DELETED FROM THE PROPOSED FIFTEENTH
AMENDMENT AT THE ELEVENTH HOUR, THE IDEA THAT THE RIGHT TO VOTE WITHOUT
MORE IMPLIES THE RIGHT TO BE VOTED FOR WAS SPECIFICALLY REFERRED TO BY
SUPPORTERS OF THE FIFTEENTH AMENDMENT IN BOTH HOUSES OF CONGRESS.  SEE
CONG. GLOBE, 40TH CONG., 3D SESS., 1425-1426 (1869) (CONG. (BOUTWELL);
ID., AT 1426 (CONG. BUTLER); ID., AT 1629 (SEN. SAWYER.) 

/20/  HEARINGS, SUPRA, N. 8, AT 128-129. 

/21/  SEE, E.G., GLOBE 141-142 (CONG. BLAINE); GLOBE 2766-2767 (SEN.
HOWARD); GLOBE 2769-2770 (SENS.  WADE AND WILSON); GLOBE 3033 (SEN.
HENDERSON). 

/22/  THE JOURNAL IS REPRINTED IN KENDRICK, SUPRA, N. 3, AT 37-129. 

/23/  THE ATTEMPTS WERE NOT ALTOGETHER SUCCESSFUL.  SEE JAMES 108
109. 

/24/  SEE GENERALLY, KENDRICK 18-22.  FOR REASONS TO BE DEVELOPED
BELOW, INFRA, AT 197, THE REPORT OF THE JOINT COMMITTEE, H.R. REP. NO.
30, 39TH CONG., 1ST SESS. (1866), IS LESS USEFUL AS AN INDICATION OF
THE UNDERSTANDING OF THE COMMITTEE AND THE CONGRESS THAN AS AN
INDICATION OF THE UNDERSTANDING OF THE RATIFYING STATES. 

/25/  OWEN'S ACCOUNT OF THE FOURTEENTH AMENDMENT IS GIVEN IN
POLITICAL RESULTS FROM THE VARIOLOID, 35 ATLANTIC MONTHLY 660 (JUNE
1875). 

/26/  SEE JAMES 109-112; GILLETTE 24; OWEN, SUPRA, N. 25, AT 666. 

/27/  SEE THE VOTES ON STEVENS' MOTION TO SELECT THE ALTERNATIVE
WHICH REDUCED REPRESENTATION RATHER THAN THAT WHICH PROHIBITED RACIAL
RESTRICTIONS ON THE BALLOT, KENDRICK 52; BOUTWELL'S MOTION TO CONDITION
READMISSION OF TENNESSEE ON THAT STATE'S AGREEMENT NOT TO DISCRIMINATE
IN ITS VOTER QUALIFICATIONS, KENDRICK 70; STEVENS' MOTION TO STRIKE OUT
THE PROVISION OF THE OWEN PLAN ENFRANCHISING NEGROES AFTER 1876,
KENDRICK 101; AND THE MOTION TO CONDITION READMISSION OF TENNESSEE AND
ARKANSAS ON THEIR HAVING PROVIDED IMPARTIAL MALE SUFFRAGE, AS WELL AS
ON CONFORMING THEIR LAWS AND CONSTITUTIONS TO THE REQUIREMENT OF THIS
PROPOSED AMENDMENT (WHICH INCLUDED BINGHAM'S PROVISION WHEN THIS MOTION
WAS MADE), KENDRICK 109. 

BINGHAM WAS NOT, HOWEVER, WHOLLY OPPOSED TO NEGRO SUFFRAGE.  AS
CHAIRMAN OF THE SUBCOMMITTEE, HE REPORTED THE EQUAL-RIGHTS PROVISION
WHICH WOULD HAVE EMPOWERED CONGRESS TO PROVIDE FOR EQUAL POLITICAL
RIGHTS AND PRIVILEGES, KENDRICK 56, ALTHOUGH HE WAS THE ONE WHO
SUBSEQUENTLY HAD THAT REPLACED WITH THE FIRST EQUAL-RIGHTS PROVISION
REPORTED TO CONGRESS.  KENDRICK 61.  AS ALREADY NOTED, THE SUBSTITUTE
CONTAINED SUBSTANTIALLY IDENTICAL LANGUAGE, BUT OMITTED REFERENCE TO
POLITICAL RIGHTS AND PRIVILEGES.  BINGHAM ALSO VOTED FOR OWEN'S PLAN,
WHICH WOULD HAVE ENFRANCHISED NEGROES IN 1876, WHEN IT WAS FIRST
PRESENTED.  KENDRICK 85.  IN FEBRUARY 1867 HE MOVED TO CONDITION
READMISSION OF THE SOUTHERN STATES ON IMPARTIAL MALE SUFFRAGE AS WELL
AS ON THE STATES' RATIFYING THE FOURTEENTH AMENDMENT AND CONFORMING
THEIR LAWS THERETO.  KENDRICK 123. 

/28/  WHILE ANY GUESS AS TO THE MOTIVES OF BINGHAM AND THE OTHER
MEMBERS OF THE COMMITTEE IS SHEER SPECULATION, IT IS NOT NECESSARILY
TRUE THAT THEY BELIEVED THEY WERE REPLACING SPECIFIC LANGUAGE WITH
GENERAL.  THE AUTHOR OF THE ORIGINAL PLAN, FOR ONE, SEEMS TO HAVE TAKEN
THE OPPOSITE VIEW.  HE GAVE THE FOLLOWING CHARACTERIZATION OF SEC. 1
SOME YEARS LATER: 

"A DECLARATION WHO IS A CITIZEN:  UNNECESSARY, IF WE HAD GIVEN
SUFFRAGE TO THE NEGRO; SINCE THERE COULD BE NO POSSIBLE DOUBT THAT AN
ELECTOR, NATIVEBORN, IS A CITIZEN OF THE UNITED STATES.  ALSO A
SPECIFICATION OF THE PARTICULAR CIVIL RIGHTS TO BE ASSURED:  OUT OF
PLACE, I THINK, IN A CONSTITUTIONAL AMENDMENT, THOUGH NECESSARY AND
PROPER IN A CIVIL RIGHTS BILL."  OWEN, SUPRA, N. 25, AT 666. 

/29/  THE PROCEEDINGS OF THE JOINT COMMITTEE ARE EXAMINED IN GREATER
DETAIL IN THE OPINION OF THE JOINT COMMITTEE ARE EXAMINED IN GREATER
DETAIL IN THE OPINION OF MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, AND
MR. JUSTICE MARSHALL.  POST, AT 257-263.  I AGREE WITH THEIR APPARENT
CONCLUSION THAT THE JOURNAL SHEDS LITTLE LIGHT ON THE CONTEMPORARY
CONSTRUCTION OF THE FOURTEENTH AMENDMENT.  ONE IS LEFT TO DO WHAT HE
CAN WITH THE TWO FACTS NOTED AT THE OUTSET OF THIS SECTION: THAT OF THE
PLANS CONSIDERED BY THE JOINT COMMITTEE, ALL PROVIDED EITHER FOR
REDUCTION OF REPRESENTATION OF FOR ENFRANCHISEMENT WHILE NONE PROVIDED
FOR BOTH AT THE SAME TIME; AND THAT THE COMMITTEE CONSISTENTLY REJECTED
PROVISIONS TO ENFRANCHISE THE FREEDMEN, WITH THE CONCEIVABLE EXCEPTION
OF A PLAN WHICH WAS DEFEATED IN THE HOUSE LARGELY BECAUSE OF THE SCOPE
OF THE POWERS IT TRANSFERRED FROM THE STATES TO THE FEDERAL
GOVERNMENT. 

/30/  UNLESS, OF COURSE, ONE ADOPTS A "CONSPIRACY THEORY" OF THE
HISTORY OF THE FOURTEENTH AMENDMENT.  THUS FAR NO ONE HAS (QUITE) DONE
SO IN THIS CONTEXT. 

/31/  "I REGRET MORE THAN I SHALL BE ABLE TO TELL THIS HOUSE THAT WE
HAVE NOT FOUND THE SITUATIOU (SIC) OF AFFAIRS IN THIS COUNTRY SUCH, AND
THE PUBLIC VIRTUE SUCH THAT WE MIGHT COME OUT ON THE PLAIN,
UNANSWERABLE PROPOSITION THAT EVERY ADULT INTELLIGENT CITIZEN OF THE
UNITED STATES, UNCONVICTED OF CRIME, SHALL ENJOY THE RIGHT OF
SUFFRAGE."  GLOBE 2462. 

/32/  "I SHALL, MR. SPEAKER, VOTE FOR THIS AMENDMENT; NOT BECAUSE I
APPROVE IT.  COULD I HAVE CONTROLLED THE REPORT OF THE COMMITTEE OF
FIFTEEN, IT WOULD HAVE PROPOSED TO GIVE THE RIGHT OF SUFFRAGE TO EVERY
LOYAL MAN IN THE COUNTRY."  GLOBE 2469. 

"SO FAR AS I AM INDIVIDUALLY CONCERNED, I OBJECT TO THE AMENDMENT AS
A WHOLE, BECAUSE IT DOES NOT GO FAR ENOUGH AND PROPOSE TO AT ONCE
ENFRANCHISE EVERY LOYAL MAN IN THE COUNTRY."  IBID. 

/33/  "THE PROPOSITION IN THE MATTER OF SUFFRAGE FALLS SHORT OF WHAT
I DESIRE, BUT SO FAR AS IT GOES IT TENDS TO THE EQUALIZATION OF THE
INEQUALITY AT PRESENT EXISTING; AND WHILE I DEMAND AND SHALL CONTINUE
TO DEMAND THE FRANCHISE FOR ALL LOYAL MALE CITIZENS OF THIS COUNTRY--
AND I CANNOT BUT ADMIT THE POSSIBILITY THAT ULTIMATELY THOSE ELEVEN
STATES MAY BE RESTORED TO REPRESENTATIVE POWER WITHOUT THE RIGHT OF
FRANCHISE BEING CONFERRED UPON THE COLORED PEOPLE-- I SHOULD FEEL
MYSELF DOUBLY HUMILIATED AND DISGRACED, AND CRIMINAL EVEN, IF I
HESITATED TO DO WHAT I CAN FOR A PROPOSITION WHICH EQUALIZES
REPRESENTATION."  GLOBE 2508. 

/34/  "THE SECOND SECTION, MR. SPEAKER, IS, IN MY JUDGMENT, AS
NEARLY CORRECT AS IT CAN BE WITHOUT BEING FULLY, IN FULL MEASURE,
RIGHT.  BUT ONE THING IS RIGHT, AND THAT IS SECURED BY THE AMENDMENT. 
MANIFESTLY NO STATE SHOULD HAVE ITS BASIS OF NATIONAL REPRESENTATION
ENLARGED BY REASON OF A PORTION OF CITIZENS WITHOUT ITS BORDERS TO
WHICH THE ELECTIVE FRANCHISE IS DENIED.  IF POLITICAL POWER SHALL BE
LOST BECAUSE OF SUCH DENIAL, NOT IMPOSED BECAUSE OF PARTICIPATION IN
REBELLION OR OTHER CRIME, IT IS TO BE HOPED THAT POLITICAL INTERESTS
MAY WORK IN THE LINE OF JUSTICE, AND THAT THE END WILL BE THE IMPARTIAL
ENFRANCHISEMENT OF ALL CITIZENS NOT DISQUALIFIED BY CRIME.  WHETHER
THAT END SHALL BE ATTEINED OR NOT, THIS WILL BE SECURED:  THAT THE
MEASURE OF POLITICAL POWER OF ANY STATE SHALL BE DETERMINED BY THAT
PORTION OF ITS CITIZENS WHICH CAN SPEAK AND ACT AT THE POLLS, AND SHALL
NOT BE ENLARGED BECAUSE OF THE RESIDENCE WITHIN THE STATE OF PORTIONS
OF ITS CITIZENS DENIED THE RIGHT OF FRANCHISE.  SO MUCH FOR THE SECOND
BUT ODIOUS INEQUALITIES ARE REMOVED BY IT AND REPRESENTATION WILL BE
EQUALIZED, AND THE POLITICAL RIGHTS OF ALL CITIZENS WILL UNDER ITS
OPERATION BE, AS WE BELIEVE, ULTIMATELY RECOGNIZED AND ADMITTED." 
GLOBE 2511. 

/35/  "I DID HOPE TO SEE THE RIGHTS OF THE FREEDMEN COMPLETELY
ESTABLISHED.  . . . I DID HOPE . . . THAT WE SHOULD HAVE THE MANHOOD
AND MAGNANIMITY TO DECLARE THAT MEN WHO HAVE WIELDED THE SWORD IN
DEFENSE OF THEIR COUNTRY ARE FIT TO BE INTRUSTED WITH THE BALLOT.  BUT
I AM CONVINCED THAT MY EXPECTATIONS, HITHERTO FONDLY CHERISHED, ARE
DOOMED TO SOME DISAPPOINTMENT."  GLOBE 2537. 

/36/  "THIS IS A STEP IN THE RIGHT DIRECTION; AND ALTHOUGH I SHOULD
PREFER TO SEE INCORPORATED INTO THE CONSTITUTION A GUARANTEE OF
UNIVERSAL SUFFRAGE, AS WE CANNOT GET THE REQUIRED TWO THIRDS FOR THAT,
I CORDIALLY SUPPORT THIS PROPOSITION AS THE NEXT BEST."  GLOBE 2540. 

/37/  "(IF THE FREED SLAVES HAD BEEN ADDED) TO THE THINKING, VOTING
MEN OF THE SOUTHERN STATES, IT WOULD BE JUST AND PROPER THAT THAT
ADDITION SHOULD BE REPRESENTED IN THIS BODY.  BUT WE ALL KNOW THAT SUCH
IS NOT THE CASE.  IN THOSE STATES THEMSELVES THE LATE SLAVES DO NOT
ENTER INTO THE BASIS OF LOCAL REPRESENTATION.  . . . 

"WOULD IT NOT BE A MOST UNPRECEDENTED THING THAT WHEN THIS
POPULATION ARE NOT PERMITTED WHERE THEY RESIDE TO ENTER INTO THE BASIS
OF REPRESENTATION IN THEIR OWN STATE, WE SHOULD RECEIVE IT AS AN
ELEMENT OF REPRESENTATION HERE.  . . . " GLOBE 2464. 

/38/  "THE SECOND PROPOSITION IS, IN SHORT, TO LIMIT THE
REPRESENTATION OF THE SEVERAL STATES AS THOSE STATES THEMSELVES SHALL
LIMIT SUFFRAGE.  . . . 

" . . . AND WHY NOT?  IF THE NEGROES OF THE SOUTH ARE NOT TO BE
COUNTED AS A POLITICAL ELEMENT IN THE GOVERNMENT OF THE SOUTH IN THE
STATES, WHY SHOULD THEY BE COUNTED AS A POLITICAL ELEMENT IN THE
GOVERNMENT OF THE COUNTRY IN THE UNION?  IF THEY ARE NOT TO BE COUNTED
AS AGAINST THE SOUTHERN PEOPLE THEMSELVES, WHY SHOULD THEY BE COUNTED
AS AGAINST US?"  GLOBE 2498. 

/39/  H.R. 51 "DEPRIVED (THE SOUTHERN STATES) OF ALL INDUCEMENT FOR
(THE) GRADUAL ADMISSION (OF THE FREEDMEN) TO THE RIGHT OF SUFFRAGE, IN
ASMUCH AS IT EXACTED UNIVERSAL SUFFRAGE AS THE ONLY CONDITION UPON
WHICH THEY SHOULD BE COUNTED IN THE BASIS OF REPRESENTATION AT ALL.  .
. . I VOTED AGAINST A PROPOSITION WHICH SEEMED TO ME SO UNJUST AND SO
INJURIOUS, NOT ONLY TO THE WHITES OF THE SOUTHERN STATES, BUT TO THE
COLORED RACE ITSELF.  WELL, SIR, THAT AMENDMENT WAS REJECTED IN THE
SENATE, AND THE PROPOSITION, AS EMBODIED IN THE COMMITTEE'S REPORT,
COMES BEFORE US IN A VERY DIFFERENT FORM.  IT IS NOW PROPOSED TO BASE
REPRESENTATION UPON SUFFRAGE, UPON THE NUMBER OF VOTERS, INSTEAD OF
UPON THE AGGREGATE POPULATION IN EVERY STATE OF THE UNION.  AND AS I
BELIEVE THAT TO BE ESSENTIALLY JUST, AND LIKELY TO REMEDY THE UNEQUAL
REPRESENTATION OF WHICH COMPLAINT IS SO JUSLY MADE, I SHALL GIVE IT MY
VOTE."  GLOBE 2502. 

LATER, IN DISCUSSION OF SEC. 3, WHICH AT THAT TIME WOULD HAVE
DISFRANCHISED CERTAIN REBELS IN FEDERAL ELECTIONS, RAYMOND REMARKED
THAT THE EFFECT WOULD BE TO ALLOW "ONE FIFTH, ONE EIGHTH, OR ONE TENTH,
AS THE CASE MAY BE, OF THE PEOPLE OF THESE SOUTHERN STATES TO ELECT
MEMBERS FROM THOSE STATES, TO HOLD SEATS UPON THIS FLOOR."  IBID.  IT
IS OBVIOUS THAT THE POSSIBILITY OF NEGROES' VOTING IN THESE ELECTIONS
DID NOT CROSS HIS MIND. 

/40/  "BUT THIS HOUSE IS NOT PREPARED TO ENFRANCHISE ALL MEN; THE
NATION, PERHAPS, IS NOT PREPARED FOR IT TO-DAY; THE COLORED RACE ARE
NOT PREPARED FOR IT, PROBABLY, AND I AM SURE THE REBELS ARE UNFIT FOR
IT; AND AS CONGRESS HAS NOT THE MORAL COURAGE TO VOTE FOR IT, THEN PUT
IN THIS PROVISION WHICH CUTS OFF THE TRAITOR FROM ALL POLITICAL POWER
IN THE NATION, AND THEN WE HAVE SECURED TO THE LOYAL MEN THAT CONTROL
WHICH THEY SO RICHLY DESERVE."  GLOBE 2505. 

/41/  "THIS AMENDMENT WILL SETTLE THE COMPLICATION IN REGARD TO
SUFFRAGE AND REPRESENTATION, LEAVING EACH STATE TO REGULATE THAT FOR
ITSELF, SO THAT IT WILL BE FOR IT TO DECIDE WHETHER OR NOT IT SHALL
HAVE A REPRESENTATION FOR ALL ITS MALE CITIZENS NOT LESS THAN TWENTY
ONE YEARS OF AGE."  GLOBE 2510. 

/42/  "I HAVE NO DOUBT THAT THE GOVERNMENT OF THE UNITED STATES HAS
FULL POWER TO EXTEND THE ELECTIVE FRANCHISE TO THE COLORED POPULATION
OF THE INSURGENT STATES.  I MEAN AUTHORITY; I SAID POWER.  I HAVE NO
DOUBT THAT THE GOVERNMENT OF THE UNITED STATES HAS AUTHORITY TO DO THIS
UNDER THE CONSTITUTION; BUT I DO NOT THINK THEY HAVE THE POWER.  THE
DISTINCTION I MAKE BETWEEN AUTHORITY AND POWER IS THIS:  WE HAVE, IN
THE NATURE OF OUR GOVERNMENT, THE RIGHT TO DO IT; BUT THE PUBLIC
OPINION OF THE COUNTRY IS SUCH AT THIS PRECISE MOMENT AS TO MAKE IT
IMPOSSIBLE WE SHOULD DO IT.  IT WAS THEREFORE MOST WISE ON THE PART OF
THE COMMITTEE ON RECONSTRUCTION TO WAIVE THIS MATTER IN DEFERENCE TO
PUBLIC OPINION."  GLOBE 2532. 

/43/  "IF SOUTH CAROLINA PERSISTS IN WITHHOLDING THE BALLOT FROM THE
COLORED MAN, THEN LET HER TAKE THE ALTERNATIVE WE OFFER, OF CONFINING
HER TO THE WHITE BASIS OF REPRESENTATION.  . . . "  GLOBE 2535. 

/44/  SPALDING'S SPEECHES ARE GIVEN AT GLOBE 2509-2510.  HIS ONLY
REMARKS ADDRESSED TO SECS. 1 AND 2 READ: 

"AS TO THE FIRST MEASURE PROPOSED, A PERSON MAY READ IT FIVE HUNDRED
YEARS HENCE WITHOUT GATHERING FROM IT ANY IDEA THAT THIS REBELLION EVER
EXISTED.  THE SAME MAY BE SAID OF THE SECOND PROPOSITION, FOR IT ONLY
PROPOSES THAT, THE BONDSMEN BEING MADE FREE, THE APPORTIONMENT OF
REPRESENTATIVES IN CONGRESS SHALL BE BASED UPON THE WHOLE NUMBER OF
PERSONS WHO EXERCISE THE ELECTIVE FRANCHISE, INSTEAD OF THE
POPULATION."  GLOBE 2509.     A MONTH LATER, IN THE DEBATE OVER THE
AMENDMENT WHEN IT HAD RETURNED FROM THE SENATE, SPALDING EXPRESSED HIS
VIEWS MORE CLEARLY: 

"I SAY, AS AN INDIVIDUAL, THAT I WOULD MORE CHEERFULLY GIVE MY VOTE
IF THAT PROVISION ALLOWED ALL MEN OF PROPER AGE WHOM WE HAVE MADE FREE
TO JOIN IN THE EXERCISE OF THE RIGHT OF SUFFRAGE IN THIS COUNTRY.  BUT
IF I CANNOT OBTAIN ALL THAT I WISH, I WILL GO HEARTILY TO SECURE ALL WE
CAN OBTAIN."  GLOBE 3146. 

/45/  LONGYEAR'S SPEECH IS PUBLISHED AT GLOBE 2536-2537.  HE DID NOT
IN TERMS ADDRESS HIMSELF TO ANY SECTION EXCEPT THE THIRD.  HOWEVER, IT
IS NOT DIFFICULT TO READ HIS STATEMENT THAT THE PROPOSALS OF THE JOINT
COMMITTEE DISAPPOINTED "THE EXPECTATIONS OF THE PEOPLE" AND HIS
PERSONAL HOPES AS HAVING REFERENCE TO THE ABSENCE OF ANY PROVISION ON
SUFFRAGE. 

/46/  SHELLABARGER SPOKE ONLY BRIEFLY, AND THIS IN CONNECTION WITH
THE DISFRANCHISING SECTION.  IN THE COURSE OF HIS REMARKS HE EXPRESSED
THE VIEW THAT CONGRESSIONAL POWER TO REGULATE VOTER QUALIFICATIONS IN
FEDERAL ELECTIONS WAS GRANTED BY ART. I, SEC. 4.  GLOBE 2512. 

/47/  "WHY IS IT THAT THE GENTLEMAN FROM PENNSYLVANIT (MR. STEVENS)
GIVES UP UNIVERSAL SUFFRAGE?  WHY IS IT THAT HE AND OTHER GENTLEMENT
GIVE UP UNIVERSAL CONFISCATION?  WHY IS IT THAT OTHER GENTLEMEN GIVE UP
UNIVERSAL BUTCHERY OF THAT PEOPLE?  IT IS A COMPROMISE OF WHAT THEY
CALL PRINCIPLE FOR THE PURPOSE OF SAVING THEIR PARTY IN THE NEXT FALL
ELECTION."  GLOBE 2506. 

/48/  "GENTLEMEN HERE ADMIT THAT THEY DESIRE (FEDERAL CONTROL OVER
SUFFRAGE), BUT THAT THE WEAK KNEED OF THEIR PARTY ARE NOT EQUAL TO THE
ISSUE.  YOUR PURPOSE IS THE SAME, AND BUT FOR THAT TIMIDITY YOU WOULD
NOW INGRAFT NEGRO SUFFRAGE UPON OUR CONSTITUTION AND FORCE IT ON THE
ENTIRE PEOPLE OF THIS UNION."  GLOBE 2530. 

/49/  "WHILE THIS (SECOND) SECTION ADMITS THE RIGHT OF THE STATES
THUS TO EXCLUDE NEGROES FROM VOTING, IT SAYS TO THEM, IF YOU DO SO
EXCLUDE THEM THEY SHALL ALSO BE EXCLUDED FROM ALL REPRESENTATION; AND
YOU SHALL SUFFER THE PENALTY BY LOSS OF REPRESENTATION."  GLOBE 3145. 

/50/  BOYER'S SPEECH WAS MADE IN OPPOSITION TO A PROPOSAL TO
ENFRANCHISE NEGROES IN THE DISTRICT OF COLUMBIA.  HE THEN THOUGHT NEGRO
SUFFRAGE A "MONSTROUS PROPOSITION," GLOBE 176, WHICH WAS INCOMPATIBLE
WITH "THE BROAD GENERAL PRINCIPLE THAT THIS IS, AND OF RIGHT OUGHT TO
BE, A WHITE MAN'S GOVERNMENT."  GLOBE 175.  ONE OF ROGERS' HARANGUES ON
THE SUBJECT CAME IN CONNECTION WITH THE SAME BILL.  THERE HE SPOKE OF
"THE MONSTROUS DOCTRINE OF POLITICAL EQUALITY OF THE NEGRO RACE WITH
THE WHITE AT THE BALLOT-BOX," GLOBE 198, AND LAUNCHED INTO AN ATTACK
REMARKABLE FOR ITS VITRIOL. 

/51/  BOYER VIEWED SEC. 3, WHICH AT THE TIME WOULD HAVE PROHIBITED
VOLUNTARY PARTICIPANTS IN THE REBELLION FROM VOTING IN FEDERAL
ELECTIONS, AS "THE MOST OBJECTIONABLE OF ALL PARTS," GLOBE 2467, AS IT
WOULD DISFRANCHISE NINE-TENTHS OF THE VOTING POPULATION OF THE SOUTH
FOR MORE THAN FOUR YEARS.  THE SECOND SECTION HE FOUND OBJECTIONABLE AS
DESIGNED "TO REDUCE THE NUMBER OF SOUTHERN REPRESENTATIVES IN CONGRESS
AND IN THE ELECTORAL COLLEGE; AND ALSO TO OPERATE AS A STANDING
INDUCEMENT TO NEGRO SUFFRAGE."  GLOBE 2467.  THESE REMARKS INDICATE NO
AWARENESS THAT THE FIRST SECTION WOULD INCREASE THE NUMBER OF VOTERS IN
THE SOUTHERN STATES AND ALSO RENDER ANY "INDUCEMENT" TO NEGRO SUFFRAGE
UNNECESSARY. 

ROGERS LATER IN HIS SPEECH ASSERTED: 

"THE COMMITTEE DARE NOT SUBMIT THE BROAD PROPOSITION TO THE PEOPLE
OF THE UNITED STATES OF NEGRO SUFFRAGE.  THEY DARE NOT TO-DAY PASS THE
NEGRO SUFFRAGE BILL WHICH PASSED THIS HOUSE IN THE SENATE OF THE UNITED
STATES BECAUSE, AS I HAVE HEARD ONE HONORABLE AND LEADING MAN ON THE
REPUBLICAN SIDE OF THE HOUSE SAY, IT WOULD SINK INTO OBLIVION THE PARTY
THAT WOULD ADVOCATE BEFORE THE AMERICAN PEOPLE THE EQUAL RIGHT OF THE
NEGRO WITH THE WHITE MAN TO SUFFRAGE."  GLOBE 2538. 

WHEN H.R. 127 WAS RETURNED BY THE SENATE WITH AMENDMENTS, ROGERS
ADDRESSED THE HOUSE AND STATED THAT WHEN THE RECORDS OF THE JOINT
COMMITTEE WERE MADE PUBLIC, IT WOULD BE REVEALED THAT THE COMMITTEE AT
FIRST AGREED TO RECOMMEND UNIVERSAL NEGRO SUFFRAGE, BUT RECONSIDERED
BECAUSE OF THE FORCE OF PUBLIC OPINION.  GLOBE APP. 230.  ROGERS WAS
HIMSELF A MEMBER OF THE JOINT COMMITTEE, AND HE PRESUMABLY WAS
REFERRING TO THE ACCEPTANCE AND THEN REJECTION OF OWEN'S PLAN FOR
ENFRANCHISEMENT IN 1876. 

/52/  THE AMENDMENT, HOWEVER, HAD BEEN RELEASED TO THE PRESS ON
APRIL 28.  JAMES 115. 

/53/  IT IS NOT AMISS TO POINT OUT THAT WHATEVER FORCE PHELPS' AND
ROGERS' INTERPRETATIONS MAY HAVE HAD IN THE FACE OF THE CONTRARY
AUTHORITY, EVEN THEY FORESAW NO DANGER FROM THE EQUAL PROTECTION CLAUSE
AS A SOURCE OF FEDERAL POWER OVER THE SUFFRAGE. 

/54/  LIKE MY COLLEAGUES, POST, AT 264, I FIND IT DIFFICULT TO
UNDERSTAND WHAT BINGHAM MEANT WHEN HE SAID THAT "THE EXERCISE OF THE
ELECTIVE FRANCHISE, THOUGH IT BE ONE OF THE PRIVILEGES OF A CITIZEN OF
THE REPUBLIC, IS EXCLUSIVELY UNDER THE CONTROL OF THE STATES."  GLOBE
2542.  HOWEVER, I DO NOT FIND THIS MYSTERIOUS SENTENCE TO MEAN THAT THE
EXERCISE OF THE ELECTIVE FRANCHISE IS EXCLUSIVELY UNDER THE CONTROL OF
THE STATES AND CONGRESS, NOR DO I FIND IT TO DILUTE THE FORCE OF HIS
EXPLICIT STATEMENTS QUOTED ABOVE THAT SEC. 1 DID NOT REACH THE RIGHT TO
VOTE.  THE GENERAL STATEMENTS BY BINGHAM AND STEVENS TO THE EFFECT THAT
THE AMENDMENT WAS DESIGNED TO ACHIEVE EQUALITY BEFORE THE LAW, OR WOULD
BE EFFECTUATED BY LEGISLATION IN PART, LIKEWISE DO NOT WEAKEN THE FORCE
OF THE STATEMENTS SPECIFICALLY ADDRESSED TO THE SUFFRAGE QUESTION
QUOTED ABOVE. 

/55/  FESSENDEN, HOWEVER, WAS PRESENT IN THE SENATE AND PARTICIPATED
IN THE DISCUSSION.  SEE GLOBE 2763, 2769, 2770.  HE WAS THEREFORE IN A
POSITION TO CORRECT ANY GROSS MISINTERPRETATION OF HIS VIEWS OR OF
THOSE OF THE COMMITTEE. 

/56/  MY COLLEAGUES, POST, AT 264, POINT TO HOWARD'S REFERENCE TO
CORFIELD V. CORYELL, 6 FED.CAS.  546 (NO. 3230) (CCED PA. 1825), IN
ORDER TO "GATHER SOME INTIMATION OF WHAT PROBABLY WILL BE THE OPINION
OF THE JUDICIARY" ON THE SCOPE OF THE PRIVILEGES AND IMMUNITIES CLAUSE
OF SEC. 1.  GLOBE 2765.  AS THE TEXT INDICATES, HOWARD REJECTED JUSTICE
WASHINGTON'S LENGTHY DICTUM INSOFAR AS IT SAID THAT THE PROTECTED
PRIVILEGES AND IMMUNITIES INCLUDED "THE ELECTIVE FRANCHISE, AS
REGULATED AND ESTABLISHED BY THE LAWS OR CONSTITUTION OF THE STATE IN
WHICH IT IS TO BE EXERCISED."  NO OTHER SENATOR QUOTED OR REFERRED TO
THIS PORTION OF WASHINGTON'S OPINION DURING THE DEBATES OVER THE
PROPOSED FOURTEENTH AMENDMENT.  CORFIELD, WHICH HELD THAT NEW JERSEY
COULD CONSTITUTIONALLY RESTRICT ACCESS TO HER OYSTER BEDS TO HER OWN
RESIDENTS, WAS THE LEADING AUTHORITY ON PRIVILEGES AND IMMUNITIES IN
THE MIND OF THE 39TH CONGRESS, BUT IT WAS NOT THE ONLY ONE.  CAMPBELL
V. MORRIS, 3 H. & MCH.  535 (MD. 1797) (SAMUEL CHASE, J.), AND ABBOT V.
BAYLEY, 6 PICK.  89 (MASS. 1827) (PARKER, C.J.), WERE ALSO CITED.  SEE
FAIRMAN, DOES THE FOURTEENTH AMENDMENT INCORPORATE THE BILL OF RIGHTS?,
2 STAN.L.REV.  5, 12-15 (1949).  BOTH SPECIFICALLY STATED THAT THE
PRIVILEGES AND IMMUNITIES PROTECTED BY ART. IV, SEC. 2, DID NOT INCLUDE
THE RIGHT OF SUFFRAGE OR THE RIGHT TO HOLD OFFICE. 

/57/  HOWARD WAS A VERY CLEAR-SPOKEN MAN.  WHEN IT WAS SUGGESTED,
DURING THE DEBATES OVER THE FIFTEENTH AMENDMENT, THAT THE FREEDMEN WERE
ENTITLED TO THE BALLOT BY VIRTUE OF THE PRIVILEGES AND IMMUNITIES
CLAUSE OF THE FOURTEENTH AMENDMENT, HE RECALLED HIS ROLE IN THE FRAMING
OF THAT AMENDMENT AND SAID:  "I FEEL CONSTRAINED TO SAY HERE NOW THAT
THIS IS THE FIRST TIME IT EVER OCCURRED TO ME THAT THE RIGHT TO VOTE
WAS TO BE DERIVED FROM THE FOURTEENTH ARTICLE.  I THINK SUCH A
CONSTRUCTION CANNOT BE MAINTAINED."  CONG. GLOBE, 40TH CONG., 3D SESS.,
1003 (1869).  HE THEN REFERRED TO THE DEBATES, SEC. 2 OF THE FOURTEENTH
AMENDMENT, AND THE FACT THAT "NOBODY EVER SUPPOSED THAT THE RIGHT OF
VOTING OR OF HOLDING OFFICE WAS GUARANTEED BY THAT SECOND SECTION OF
THE FOURTH ARTICLE OF THE OLD CONSTITUTION" TO BOLSTER HIS CONSTRUCTION
OF SEC. 1 OF THE FOURTEENTH AMENDMENT.  IBID. 

"I THINK OUR FRIENDS, THE COLORED PEOPLE OF THE SOUTH, SHOULD NOT BE
EXCLUDED FROM THE RIGHT OF VOTING, AND THEY SHALL NOT BE IF MY VOTE AND
THE VOTES OF A SUFFICIENT NUMBER WHO AGREE WITH ME IN CONGRESS SHALL BE
ABLE TO CARRY IT.  I DO NOT AGREE IN THIS PARTICULAR WITH THE SENATOR
FROM MICHIGAN (MR. HOWARD).  HE YIELDS TO THE PROVISION IN THE
COMMITTEE'S RESOLUTION ON THE SUBJECT RELUCTANTLY, BECAUSE HE DOES NOT
BELIEVE THREE FOURTHS OF THE STATES CAN BE GOT TO RATIFY THAT
PROPOSITION WHICH IS RIGHT AND JUST IN ITSELF.  MY OWN OPINION IS THAT
IF YOU GO DOWN TO THE VERY FOUNDATION OF JUSTICE, SO FAR FROM WEAKENING
YOURSELF WITH THE PEOPLE, YOU WILL STRENGTHEN YOURSELF IMMENSELY BY IT;
BUT I KNOW THAT IT IS NOT THE OPINION OF MANY HERE, AND I SUPPOSE WE
MUST ACCOMMODATE OURSELVES TO THE WILL OF MAJORITIES, AND IF WE CANNOT
DO ALL WE WOULD, DO ALL WE CAN.  I PROPOSE FOR MYSELF TO CONTEND FOR
ALL I CAN GET IN THE RIGHT DIRECTION, AND FINALLY TO GO WITH THOSE WHO
WILL GIVE US ANYTHING THAT IS BENEFICIAL."  GLOBE 2769. 

/59/  "I SHOULD BE MUCH BETTER SATISFIED IF THE RIGHT OF SUFFRAGE
HAD BEEN GIVEN AT ONCE TO THE MORE INTELLIGENT OF ("THE COLORED PEOPLE
OF THE SOUTH") AND SUCH AS HAD SERVED IN OUR ARMY.  . . . BELIEVING
THAT THIS AMENDMENT PROBABLY GOES AS FAR IN FAVOR OF SUFFRAGE TO THE
NEGRO AS IS PRACTICABLE TO ACCOMPLISH NOW, AND HOPING IT MAY IN THE END
ACCOMPLISH ALL I DESIRE IN THIS RESPECT, I SHALL VOTE FOR ITS ADOPTION,
ALTHOUGH I SHOULD BE GLAD TO GO FURTHER."  GLOBE 2963-2964. 

/60/  "IT DECLARES THAT ALL MEN ARE ENTITLED TO LIFE, LIBERTY, AND
PROPERTY, AND IMPOSES UPON THE GOVERNMENT THE DUTY OF DISCHARGING THESE
SOLEMN OBLIGATIONS, BUT FAILS TO ADOPT THE EASY AND DIRECT MEANS FOR
THE ATTAINMENT OF THE RESULTS PROPOSED.  IT REFUSES THE AID OF FOUR
MILLION PEOPLE IN MAINTAINING THE GOVERNMENT OF THE PEOPLE.  . . .
(BUT) IT FURNISHES A CONCLUSIVE ARGUMENT IN FAVOR OF UNIVERSAL AMNESTY
AND IMPARTIAL SUFFRAGE . . . . THE UTTER IMPOSSIBILITY OF A FINAL
SOLUTION OF THE DIFFICULTIES BY THE MEANS PROPOSED WILL CAUSE THE NORTH
TO CLAMOR FOR SUFFRAGE."  GLOBE 2964. 

/61/  "I AM SORRY TO HAVE TO PUT THAT CLAUSE (SEC. 2) INTO OUR
CONSTITUTION, AS I AM SORRY FOR THE NECESSITY WHICH CALLS UPON US TO
PUT THE PRECEDING CLAUSE INTO THE CONSTITUTION.  I WISH THERE WAS NO
COMMUNITY AND NO STATE IN THE UNITED STATES THAT WAS NOT PREPARED TO
SAY WITH MY FRIEND FROM NEVADA (MR. STEWART) THAT ALL MEN MAY BE
REPRESENTED IN THE CONGRESS OF THE UNITED STATES AND SHALL BE
REPRESENTED AND SHALL CHOOSE THEIR OWN REPRESENTATIVES.  THAT IS THE
BETTER DOCTRINE; THAT IS THE TRUE DOCTRINE.  I WOULD MUCH PREFER,
MYSELF, TO UNITE WITH THE PEOPLE OF THE UNITED STATES IN SAYING THAT
HEREAFTER NO MAN SHALL BE EXCLUDED FROM THE RIGHT TO VOTE, THAN TO
UNITE WITH THEM IN SAYING THAT HEREAFTER SOME MEN MAY BE EXCLUDED FROM
THE RIGHT OF REPRESENTATION."  GLOBE APP. 219. 

/62/  HENDERSON, WHO HAD OFFERED A DIRECT ENFRANCHISING PROVISION AS
AN ALTERNATIVE TO THE COMMITTEE'S FIRST EFFORT IN THE FIELD OF
REPRESENTATION, SEE GLOBE APP. 115, STATED THAT HE NOW RECOGNIZED THAT
"THE COUNTRY IS NOT YET PREPARED" TO SHARE POLITICAL POWER WITH
NEGROES, AND HE SUPPORTED THE COMMITTEE PLAN.  GLOBE 3035. 

/63/  "ALTHOUGH WE DO NOT OBTAIN SUFFRAGE NOW, IT IS NOT FAR OFF,
BECAUSE THE GRASPING DESIRE OF THE SOUTH FOR OFFICE, THAT OLD DESIRE TO
RULE AND REIGN OVER THIS GOVERNMENT AND CONTROL ITS DESTINIES, WILL AT
A VERY EARLY DAY HASTEN THE ENFRANCHISEMENT OF THE LOYAL BLACKS." 
GLOBE 3038. 

/64/  "THERE IS NO REASON WHY THE WHITE CITIZENS OF SOUTH CAROLINA
SHOULD VOTE THE POLITICAL POWER OF A CLASS OF PEOPLE WHOM THEY SAY ARE
ENTIRELY UNFIT TO VOTE FOR THEMSELVES.  IF THERE IS ANY PORTION OF THE
PEOPLE OF THIS COUNTRY WHO ARE UNFIT TO VOTE FOR THEMSELVES, THEIR
NEIGHBORS OUGHT TO VOTE FOR THEM."  GLOBE 3986. 

THERE WAS NO INDICATION THAT SHERMAN CONSIDERED SOUTH CAROLINA'S
DISQUALIFICATION ON RACIAL GROUNDS ANY MORE IMPROPER THAN
MASSACHUSETTS' LIMITATIONS OF THE FRANCHISE TO MEN, WHICH HE MENTIONED
IN THE NEXT BREATH. 

/65/  "IF YOU THINK THE NEGRO OUGHT TO HAVE THE RIGHT OF VOTING; IF
YOU ARE IN FAVOR OF IT, AND INTEND IT SHALL BE GIVEN, WHY DO YOU NOT IN
PLAIN WORDS CONFER IT UPON THEM?  IT IS MUCH FAIRER THAN TO SEEK IT BY
INDIRECTION, AND THE PEOPLE WILL DISTINCTLY UNDERSTAND YOU WHEN YOU
PROPOSE SUCH A CHANGE OF THE CONSTITUTION."  GLOBE 2939. 

/66/  "WHAT IS TO BE THE OPERATION OF THIS AMENDMENT?  JUST THIS:
YOUR WHIP ISHELD OVER PENNSYLVANIA, AND YOU SAY TO HER THAT SHE MUST
EITHER ALLOW HER NEGROES TO VOTE OR HAVE ONE MEMBER OF CONGRESS LESS." 
GLOBE 2987. 

/67/  "(THE SECOND SECTION'S) TRUE MEANING WAS INTENDED TO BE
DIFFICULT TO BE REACHED, BUT WHEN UNDERSTOOD, IT IS A MEASURE WHICH
SHRINKS FROM THE RESPONSIBILITY OF OPENLY FORCING NEGRO SUFFRAGE UPON
THE LATE SLAVE STATES BUT ATTEMPTS BY A GREAT PENALTY TO COERCE THEM TO
ACCEPT IT."  GLOBE APP. 240. 

/68/  "IT SAYS THAT EACH OF THE SOUTHERN STATES, AND, OF COURSE,
EACH OTHER STATE IN THE UNION, HAS A RIGHT TO REGULATE FOR ITSELF THE
FRANCHISE, AND THAT CONSEQUENTLY, AS FAR AS THE GOVERNMENT OF THE
UNITED STATES IS CONCERNED, IF THE BLACK MAN IS NOT PERMITTED THE RIGHT
TO THE FRANCHISE, IT WILL BE A WRONG (IF A WRONG) WHICH THE GOVERNMENT
OF THE UNITED STATES WILL BE IMPOTENT TO REDRESS."  GLOBE 3027. 
JOHNSON WAS THE ONLY DEMOCRATIC SENATOR ON THE JOINT COMMITTEE. 

/69/  "WITH (THE REBEL STATES') ENLARGED BASIS OF REPRESENTATION,
AND EXCLUSION OF THE LOYAL MEN OF COLOR FROM THE BALLOT-BOX, I SEE NO
HOPE OF SAFETY UNLESS IN THE PRESCRIPTION OF PROPER ENABLING ACTS,
WHICH SHALL DO JUSTICE TO THE FREEDMEN AND ENJOIN ENFRANCHISEMENT AS A
CONDITION-PRECEDENT."  GLOBE 3148.     /70/  KELLEY: SEE GLOBE 2469,
QUOTED AT N. 32, SUPRA. 

FARNSWORTH:  SEE GLOBE 2540, QUOTED AT N. 36, SUPRA. 

ELIOT:  SEE GLOBE 2511, QUOTED AT N. 34, SUPRA. 

HIGBY:  SEE GLOBE 3978 (DEBATE OVER READMISSION OF TENNESSEE DESPITE
ALL-WHITE ELECTORATE). 

BINGHAM:  SEE GLOBE 2542, QUOTED SUPRA, AT 185; SEE ALSO GLOBE 3979
(DEBATE OVER READMISSION OF TENNESSEE).     STEVENS:  SEE GLOBE 2459
2460, QUOTED SUPRA, AT 175-177; GLOBE 3148, QUOTED AT N. 69, SUPRA. 

RAYMOND:  SEE GLOBE 2502, QUOTED AT N. 39, SUPRA. 

ASHLEY:  SEE GLOBE 2882. 

SUMNER:  SEE N. 71, INFRA. 

FESSENDEN:  SEE H.R. REP. NO. 30, 39TH CONG., 1ST SESS., XIII-XIV
(2866), QUOTED INFRA, AT 197-198. 

YATES:  SEE GLOBE 3038, QUOTED AT N. 63, SUPRA. 

STEWART:  SEE GLOBE 2964, QUOTED AT N. 60, SUPRA. 

WADE:  SEE GLOBE 2769, QUOTED AT N. 58, SUPRA. 

THE EXCEPTION IS SENATOR WILSON OF MASSACHUSETTS, WHO DID NOT
ADDRESS HIMSELF TO THIS ISSUE.  HOWEVER, HE PARTICIPATED IN THE
DEBATES, SEE GLOBE 2770, 2986-2987, AND WAS THEREFORE IN A POSITION TO
EXPRESS DISAGREEMENT WITH THE INTERPRETAION UNIFORMLY OFFERED IN THE
SENATE. 

SECONDARY RELIANCE IS PLACED IN SHELLABARGER, COOK, BOUTWELL,
JULIAN, AND LAWRENCE OF OHIO.  THESE REPRESENTATIVES, WITH THE
EXCEPTION OF BOUTWELL, SEE N. 33, SUPRA, DID NOT PARTICIPATE
SIGNIFICANTLY IN THE DEBATES OVER THE FOURTEENTH AMENDMENT.  THE
SUBSTANCE OF THEIR EARLIER REMARKS IS THAT CONGRESS HAD SOME POWER,
USUALLY BY WAY OF THE GUARANTEE CLAUSE, SEE N. 6, SUPRA, TO OVERSEE
STATE VOTER QUALIFICATIONS.  SHELLABARGER ALSO RELIED ON ART. I, SEC.
4, SEE N. 46, SUPRA; INFRA, AT 210; JULIAN RELIED ON THE THIRTEENTH
AMENDMENT; AND BOUTWELL LOOKED TO THE DECLARATION OF INDEPENDENCE.  THE
RELEVANCE OF THESE VIEWS TO THE SCOPE OF SEC. 1 OF THE FOURTEENTH
AMENDMENT IS NOT APPARENT. 

/71/  STEVENS:  SEE GLOBE 2459-2460, QUOTED SUPRA, AT 175-177; GLOBE
3148, QUOTED AT N. 69, SUPRA; JAMES 163 (CAMPAIGN SPEECH IN FALL OF
1866). 

BOUTWELL:  SEE GLOBE 2508, QUOTED AT N. 33, SUPRA; GLOBE 3976
(DEBATE OVER READMISSION OF TENNESSEE.) 

SUMNER DID NOT ACTUALLY PARTICIPATE IN THE DEBATES ON H.R. 127. 
HOWEVER, AFTER THE CAUCUS OF REPUBLICAN SENATORS HAD AGREED ON THE FORM
OF THE AMENDMENT, SUMNER GAVE NOTICE THAT HE INTENDED TO MOVE TO AMEND
THE BILL ACCOMPANYING THE PROPOSED AMENDMENT.  THIS BILL, S. 292,
PROVIDED THAT ANY CONFEDERATE STATE MIGHT BE READMITTED TO
REPRESENTATION IN CONGRESS ONCE THE PROPOSED AMENDMENT HAD BECOME PART
OF THE CONSTITUTION AND THE PARTICULAR STATE SHOULD HAVE RATIFIED IT
AND MODIFIED ITS CONSTITUTION AND LAWS IN CONFORMITY THEREWITH.  THE
BILL IS REPRINTED IN H.R. REP. NO. 30, 39TH CONG., 1ST SESS., V-VI, AND
IN KENDRICK 117-119.  SUMNER'S AMENDMENT WOULD HAVE PROVIDED THAT A
STATE MIGHT BE READMITTED WHEN IT SHOULD HAVE RATIFIED THE FOURTEENTH
AMENDMENT AND MODIFIED ITS CONSTITUTION AND LAWS IN CONFORMITY
THEREWITH "AND SHALL HAVE FURTHER PROVIDED THAT THERE SHALL BE NO
DENIAL OF THE ELECTIVE FRANCHISE TO CITIZENS OF THE UNITED STATES
BECAUSE OF RACE OR COLOR, AND THAT ALL PERSONS SHALL BE EQUAL BEFORE
THE LAW."  GLOBE 2869. 

SUMNER ALSO REFERRED TO NEGRO SUFFRAGE AS UNFINISHED BUSINESS IN
SPEECHES THAT FALL.  JAMES 173, 178. 

/72/  FOR CITATIONS TO THE STATE MATERIALS, SEE FAIRMAN, DOES THE
FOURTEENTH AMENDMENT INCORPORATE THE BILL OF RIGHTS?, 2 STAN.L.REV.  5,
84-132 (1949). 

/73/  FEAR THAT THE AMENDMENT WOULD REACH VOTING WAS EXPRESSED IN
BREVIER LEGIS.  REP.  (INDIANA) 45-46, 80, 88-89 (1867); TENN. H.R.J.
38 (EXTRA SESS. 1866); FLA. S.J. 102 (1866); N.C.S.J. 96-97 (1866
1867); S.C.H.R.J. 34 (1866); AND TEX. S.J. 422-423 (1866).  THE LAST
FOUR STATES REJECTED THE PROPOSED AMENDMENT.  OPPONENTS OF THE
AMENDMENT STATED OR ASSUMED THAT IT WOULD NOT REACH VOTING
QUALIFICATIONS IN ARK. H.R.J. 288-289 (1866); FLA. S.J. 8-9 (1866);
REPORT OF THE JOINT COMMITTEE ON FEDERAL RELATIONS, MD. H.R. DOC. MM,
P. 15 (MAR. 18, 1867); MASS. H.R. DOC. NO. 149, PP. 7-9, 16-17 (1867);
AND WIS. S.J. 102-103 (1867).  FLA. H.R.J. 76-78 (1866); IND. H.R.J.
102-103 (1867); AND N.H.S.J. 71-72 (1866) ARE EQUIVOCAL. 

/74/  "ARE NOT ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES
AND SUBJECT TO ITS JURISDICTION, RIGHTFULLY CITIZENS OF THE UNITED
STATES AND OF EACH STATE, AND JUSTLY ENTITLED TO ALL THE POLITICAL AND
CIVIL RIGHTS CITIZENSHIP CONFERS?  AND SHOULD ANY STATE POSSESS THE
POWER TO DIVEST THEM OF THESE GREAT RIGHTS EXCEPT FOR TREASON OR OTHER
INFAMOUS CRIME?"  ILL. H.R.J. 40 (1867). 

/75/  IND. H.R.J. 47-48 (1867); KAN. S.J. 45 (1867); MAINE S.J. 23
(1867); MASS. H.R. DOC. NO. 149, PP. 25-26 (1867); NEV. S.J. APP. 9
(1867); VT. S.J. 28 (1866); W.VA. S.J. 19 (1867); WIS. ASSEMBLY J. 33
(1867). 

/76/  H.R. REP. NO. 30, 39TH CONG., 1ST SESS., XIII-XIV (1866). 

/77/  I HAVE FOUND REFERENCES TO ONLY TWO SUCH SPEECHES, ONE BY
SENATOR HENDRICKS AND THE OTHER BY ONE GEORGE M. MORGAN, A CANDIDATE
FOR CONGRESS IN OHIO.  CINCINNATI DAILY COMMERCIAL, AUG. 9, 1866, P. 1,
COL. 4, QUOTED IN FAIRMAN, SUPRA, N. 14, AT 72; CINCINNATI DAILY
COMMERCIAL, AUG. 23, 1866, P. 2, COL. 3, QUOTED IN FAIRMAN, SUPRA, AT
75. 

/78/  SEE GILLETTE, SUPRA, N. 3, AT 25-27. 

/79/  REYNOLDS V. SIMS, 377 U.S. 533, 589 (1964) (DISSENTING
OPINION). 

/80/  ART. IV, SEC. 4.  SEE N. 6, SUPRA, FOR THE TEXT. 

/81/  THE CONTENTION THAT CONGRESS HAS POWER TO OVERRIDE STATE
JUDGMENTS AS TO QUALIFICATIONS FOR VOTING IN FEDERAL ELECTIONS IS
DISCUSSED INFRA, AT 209-212. 

/82/  AMDT. 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." 

AMDT. XIX:  "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 SEX. 

"CONGRESS SHALL HAVE POWER TO ENFORCE THIS ARTICLE BY APPROPRIATE
LEGISLATION." 

AMDT. XXIV:  "SECTION 1.  THE RIGHT OF CITIZENS OF THE UNITED STATES
TO VOTE IN ANY PRIMARY OR OTHER ELECTION FOR PRESIDENT OR VICE
PRESIDENT, FOR ELECTORS FOR PRESIDENT OR VICE PRESIDENT, OR FOR SENATOR
OR REPRESENTATIVE IN CONGRESS, SHALL NOT BE DENIED OR ABRIDGED BY THE
UNITED STATES OR ANY STATE BY REASON OF FAILURE TO PAY ANY POLL TAX OR
OTHER TAX. 

"SEC. 2.  THE CONGRESS SHALL HAVE POWER TO ENFORCE THIS ARTICLE BY
APPROPRIATE LEGISLATION." 

/83/  SEE, E.G., HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S.
663, 670 (1966):  "OUR CONCLUSION, LIKE THAT IN REYNOLDS V. SIMS, (377
U.S. 533 (1964),) IS FOUNDED NOT ON WHAT WE THINK GOVERNMENTAL POLICY
SHOULD BE, BUT ON WHAT THE EQUAL PROTECTION CLAUSE REQUIRES." 

/84/  MOST OF THE CASES IN WHICH THIS COURT HAS USED THE EQUAL
PROTECTION CLAUSE TO STRIKE DOWN STATE VOTER QUALIFICATIONS HAVE BEEN
DECIDED SINCE 1965.  EIGHT SUCH CASES HAVE BEEN DECIDED BY OPINION. 
CARRINGTON V. RASH, 380 U.S. 89 (1965); LOUISIANA V. UNITED STATES, 380
U.S. 145 (1965); KATZENBACH V. MORGAN, 384 U.S. 641 (1966); KRAMER V.
UNION SCHOOL DISTRICT, 395 U.S. 621 (1966); CIPRIANO V. CITY OF HOUMA,
395 U.S. 701 (1969); EVANS V. CORNMAN, 398 U.S. 419 (1970); PHOENIX V.
KOLODZIEJSKI, 399 U.S. 204 (1970).  OTHER CASES HAVE BEEN SUMMARILY
DISPOSED OF.  IN NONE OF THESE CASES DID THE COURT ADVERT TO THE
ARGUMENT BASED ON THE HISTORICAL UNDERSTANDING. 

BEFORE 1965, ALTHOUGH THIS COURT HAD OCCASIONALLY ENTERTAINED ON THE
MERITS CHALLENGES TO STATE VOTER QUALIFICATIONS UNDER THE EQUAL
PROTECTION CLAUSE, ONLY TWO CASES HAD SUSTAINED THE CHALLENGES.  NIXON
V. HERNDON, 273 U.S. 536 (1927), HELD THAT A TEXAS STATUTE LIMITING
PARTICIPATION IN THE DEMOCRATIC PARTY PRIMARY TO WHITES VIOLATED THE
FOURTEENTH AMENDMENT.  NIXON V. CONDON, 286 U.S. 73 (1932), HELD THAT
TEXAS DID NOT AVOID THE REACH OF THE HERNDON DECISION BY TRANSFERRING
TO THE PARTY'S EXECUTIVE COMMITTEE THE POWER TO SET QUALIFICATIONS FOR
PARTICIPATION IN THE PRIMARY.  IN NEITHER OF THE NIXON CASES WAS THE
HISTORY OF THE FOURTEENTH AMENDMENT SUGGESTED TO THE COURT.  BOTH CASES
WERE ARGUED ON THE ASSUMPTION THAT RACIAL PROHIBITIONS ON VOTING IN
STATE GENERAL ELECTIONS WOULD VIOLATE THE FOURTEENTH AS WELL AS THE
FIFTEENTH AMENDMENT.  THIS POTENTIAL LINE OF DECISIONS PROVED ABORTIVE
WHEN UNITED STATES V. CLASSIC, 313 U.S. 299 (1941), LAID THE GROUNDWORK
FOR HOLDING THAT PARTICIPATION IN PARTY PRIMARIES WAS INCLUDED WITHIN
THE "RIGHT . . . TO VOTE" PROTECTED BY THE FIFTEENTH AMENDMENT.  SEE
REYNOLDS V. SIMS, 377 U.S. 533, 614 N. 72 (1964) (DISSENTING OPINION). 
THE NIXON OPINIONS WERE NOT RELIED ON BY THE COURT IN THE SUBSEQUENT
WHITE-PRIMARY CASES, SMITH V. ALLWRIGHT, 321 U.S. 649 (1944), AND TERRY
V. ADAMS, 345 U.S. 461 (1953), AND THEY WERE NOT EVEN REFERRED TO IN
THE RECENT CASES ON VOTER QUALIFICATIONS CITED ABOVE. 

/85/  IN THIS PARTICULAR INSTANCE THE OTHER TWO BRANCHES OF THE
GOVERNMENT HAVE IN FACT EXPRESSED CONFLICTING VIEWS AS TO THE VALIDITY
OF TITLE III OF THE ACT, THE VOTING-AGE PROVISION.  SEE H.R. DOC. NO.
91-326 (1970). 

/86/  IN FACT, HOWEVER, I DO NOT UNDERSTAND HOW THE DOCTRINE OF
DEFERENCE TO RATIONAL CONSTITUTIONAL INTERPRETATION BY CONGRESS,
ESPOUSED BY THE MAJORITY IN KATZENBACH V. MORGAN, 384 U.S. 641 (1966)
IS CONSISTENT WITH THIS STATEMENT OF CHIEF JUSTICE MARSHALL OR WITH OUR
REAFFIRMATION OF IT IN COOPER V. AARON, 358 U.S. 1, 18 (1958): 

"(MARBURY) DECLARED THE BASIC PRINCIPLE THAT THE FEDERAL JUDICIARY
IS SUPREME IN THE EXPOSITION OF THE LAW OF THE CONSTITUTION, AND THAT
THE PRINCIPLE HAS EVER SINCE BEEN RESPECTED BY THIS COURT AND THE
COUNTRY AS A PERMANENT AND INDISPENSABLE FEATURE OF OUR CONSTITUTIONAL
SYSTEM." 

/87/  CONTRAST METROPOLITAN CAS. INS. CO. V. BROWNELL, 294 U.S. 580
(1935), RELIED ON BY MY COLLEAGUES.  IN THAT CASE THE CRUCIAL FACTUAL
ISSUE, ON WHICH THE RECORD WAS SILENT, WAS WHETHER CASUALTY INSURANCE
COMPANIES NOT INCORPORATED IN INDIANA "GENERALLY KEEP THEIR FUNDS AND
MAINTAIN THEIR BUSINESS OFFICES, AND THEIR AGENCIES FOR THE SETTLEMENT
OF CLAIMS, OUTSIDE THE STATE."  294 U.S.,AT 585. 

/88/  IT MIGHT WELL BE ASKED WHY THIS STANDARD IS NOT EQUALLY
APPLICABLE TO THE CONGRESSIONAL EXPANSION OF THE FRANCHISE BEFORE US.
LOWERING OF VOTER QUALIF CATIONS DILUTES THE VOTING POWER OF THOSE WHO
COULD MEET THE HIGHER STANDARD, AND IT HAS BEEN HELD THAT "THE RIGHT OF
SUFFRAGE CAN BE DENIED BY A DEBASEMENT OR DILUTION OF THE WEIGHT OF A
CITIZEN'S VOTE JUST AS EFFECTIVELY AS BY WHOLLY PROHIBITING THE FREE
EXERCISE OF THE FRANCHISE."  REYNOLDS V. SIMS, 377 U.S. 533, 555
(1964).  INTERFERENCE WITH STATE CONTROL OVER QUALIFICATIONS FOR VOTING
IN PRESIDENTIAL ELECTIONS IN ORDER TO ENCOURAGE INTERSTATE MIGRATION
APPEARS PARTICULARLY VULNERABLE TO ANALYSIS IN TERMS OF COMPELLING
FEDERAL INTERESTS. 

/89/  ALTHOUGH MR. JUSTICE BLACK RESTS HIS DECISION IN PART ON THE
ASSUMPTION THAT THE SELECTION OF PRESIDENTIAL ELECTORS IS A "FEDERAL"
ELECTION, THE COURT HELD IN IN RE GREEN, 134 U.S. 377, 379 (1890), AND
REPEATED IN RAY V. BLAIR, 343 U.S. 214, 224-225 (1952), THAT
PRESIDENTIAL ELECTORS ACT BY AUTHORITY OF THE STATES AND ARE NOT
FEDERAL OFFICIALS. 

/90/  AT THE TIME THESE SUITS WERE FILED ONLY TWO OF THE 50 STATES,
GEORGIA AND KENTUCKY, ALLOWED 18-YEAR-OLDS TO VOTE, AND ONLY TWO OTHER
STATES, HAWAII AND ALASKA, SET THE VOTING AGE BELOW 21.  IN SUBSEQUENT
REFERENDA, VOTERS IN 10 STATES DECLINED TO LOWER THE VOTING AGE; FIVE
STATES LOWERED THE VOTING AGE TO 19 OR 20; AND ALASKA LOWERED THE AGE
FROM 19 TO 18.  SEE THE WASHINGTON POST, NOV. 5, 1970, P. A13, COL. T. 

/91/  "THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL
PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES." 

/92/  AT THE TIME THE CONSTITUTION WAS ADOPTED, ADDITIONAL
RESTRICTIONS BASED ON PAYMENT OF TAXES AND OWNERSHIP OF PROPERTY, AS
WELL AS CREED AND SEX, WERE IMPOSED, MAKING THE PROPOSITION EVEN
CLEARER. 

/93/  SEE ART. II:  "EACH STATE RETAINS ITS SOVEREIGNTY, FREEDOM AND
INDEPENDENCE, AND EVERY POWER, JURISDICITON AND RIGHT, WHICH IS NOT BY
THIS CONFEDERATION EXPRESSLY DELEGATED TO THE UNITED STATES, IN
CONGRESS ASSEMBLED." 

/94/  THE LEGISLATIVE HISTORY OF THE VOTING RIGHTS ACT AMENDMENTS
CONTAINS SUFFICIENT EVIDENCE TO THIS EFFECT, IF ANY BE NEEDED. 

/95/  CF. SEC. 4 OF THE VOTING RIGHTS ACT OF 1965, 79 STAT. 438,
WHICH SUSPENDED LITERACY TESTS ONLY IN AREAS FALLING WITHIN A COVERAGE
FORMULA AND ALLOWED REINSTATEMENT OF THE TESTS UPON JUDICIAL
DETERMINATION THAT DURING THE PRECEDING FIVE YEARS NO TESTS HAD BEEN
USED WITH DISCRIMINATORY PURPOSE OR EFFECT.  42 U.S.C. 1973BA)(1964
ED., SUPP. V), AMENDED BY PUB. L. NO. 91-285 SEC. 3, 84 STAT. 315. 

/96/  I ASSUME THAT REASONABLENESS IS THE APPLICABLE STANDARD,
NOTWITHSTANDING THE FACT THAT THE INSTANT LEGISLATION IS CHALLENGED ON
THE GROUND THAT IT IMPROPERLY DILUTES THE VOTES OF LITERATE ARIZONA
CITIZENS.  BUT SEE KRAMER V. UNION SCHOOL DISTRICT, 395 U.S. 621
(1969); N. 88, SUPRA.

        APPENDIX TO OPINION OF HARLAN, J.

        VOTING RIGHTS ACT AMENDMENTS OF 1970, PUB. L. 91-285, 84

           STAT. 314

        TITLE II-- SUPPLEMENTAL PROVISIONS

        APPLICATION OF PROHIBITION TO OTHER STATES 

SEC. 201.  (A) PRIOR TO AUGUST 6, 1975, NO CITIZEN SHALL BE DENIED,
BECAUSE OF HIS FAILURE TO COMPLY WITH ANY TEST OR DEVICE, THE RIGHT TO
VOTE IN ANY FEDERAL STATE, OR LOCAL ELECTION CONDICTED IN ANY STATE OR
POLITICAL SUBDIVISION OF A STATE AS TO WHICH THE PROVISIONS OF SECTION
4(A) OF THIS ACT ARE NOT IN EFFECT BY REASON OF DETERMINATIONS MADE
UNDER SECTION 4(B) OF THIS ACT.     (B) AS USED IN THIS SECTION, THE
TERM "TEST OR DEVICE" MEANS ANY REQUIREMENT THAT A PERSON AS A
PREREQUISITE FOR VOTING OR REGISTRATION FOR VOTING (1) DEMONSTRATE THE
ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY MATTER, (2)
DEMONSTRATE ANY EDUCATIONAL ACHIEVEMENT OR HIS KNOWLEDGE OF ANY
PARTICULAR SUBJECT, (3) POSSESS GOOD MORAL CHARACTER, OR (4) PROVE HIS
QUALIFICATIONS BY THE VOUCHER OF REGISTERED VOTERS OR MEMBERS OF ANY
OTHER CLASS. 

        RESIDENCE REQUIREMENTS FOR VOTING 

SEC. 202.  (A) THE CONGRESS HEREBY FINDS THAT THE IMPOSITION AND
APPLICATION OF THE DURATIONAL RESIDENCY REQUIREMENT AS A PRECONDITION
TO VOTING FOR THE OFFICES OF PRESIDENT AND VICE PRESIDENT, AND THE LACK
OF SUFFICIENT OPPORTUNITIES FOR ABSENTEE REGISTRATION AND ABSENTEE
BALLOTING IN PRESIDENTIAL ELECTIONS-- 

(1) DENIES OR ABRIDGES THE INHERENT CONSTITUTIONAL RIGHT OF CITIZENS
TO VOTE FOR THEIR PRESIDENT AND VICE PRESIDENT; 

(2) DENIES OR ABRIDGES THE INHERENT CONSTITUTIONAL RIGHT OF CITIZENS
TO ENJOY THEIR FREE MOVEMENT ACROSS STATE LINES; 

(3) DENIES OR ABRIDGES THE PRIVILEGES AND IMMUNITIES GUARANTEED TO
THE CITIZENS OF EACH STATE UNDER ARTICLE IV, SECTION 2, CLAUSE 1, OF
THE CONSTITUTION; 

(4) IN SOME INSTANCES HAS THE IMPERMISSIBLE PURPOSE OR EFFECT OF
DENYING CITIZENS THE RIGHT TO VOTE FOR SUCH OFFICERS BECAUSE OF THE WAY
THEY MAY VOTE; 

(5) HAS THE EFFECT OF DENYING TO CITIZENS THE EQUALITY OF CIVIL
RIGHTS, AND DUE PROCESS AND EQUAL PROTECTION OF THE LAWS THAT ARE
GUARANTEED TO THEM UNDER THE FOURTEENTH AMENDMENT; AND 

(6) DOES NOT BEAR A REASONABLE RELATIONSHIP TO ANY COMPELLING STATE
INTEREST IN THE CONDUCT OF PRESIDENTIAL ELECTIONS. 

(B) UPON THE BASIS OF THESE FINDINGS, CONGRESS DECLARES THAT IN
ORDER TO SECURE AND PROTECT THE ABOVE-STATED RIGHTS OF CITIZENS UNDER
THE CONSTITUTION, TO ENABLE CITIZENS TO BETTER OBTAIN THE ENJOYMENT OF
SUCH RIGHTS, AND TO ENFORCE THE GUARANTEES OF THE FOURTEENTH AMENDMENT,
IT IS NECESSARY (1) TO COMPLETELY ABOLISH THE DURATIONAL RESIDENCY
REQUIREMENT AS A PRECONDITION TO VOTING FOR PRESIDENT AND VICE
PRESIDENT, AND (2) TO ESTABLISH NATIONWIDE, UNIFORM STANDARDS RELATIVE
TO ABSENTEE REGISTRATION AND ABSENTEE BALLOTING IN PRESIDENTIAL
ELECTIONS. 

(C) NO CITIZEN OF THE UNITED STATES WHO IS OTHERWISE QUALIFIED TO
VOTE IN ANY ELECTION FOR PRESIDENT AND VICE PRESIDENT SHALL BE DENIED
THE RIGHT TO VOTE FOR ELECTORS FOR PRESIDENT AND VICE PRESIDENT, OR FOR
PRESIDENT AND VICE PRESIDENT, IN SUCH ELECTION BECAUSE OF THE FAILURE
OF SUCH CITIZEN TO COMPLY WITH ANY DURATIONAL RESIDENCY REQUIREMENT OF
SUCH STATE OR POLITICAL SUBDIVISION; NOR SHALL ANY CITIZEN OF THE
UNITED STATES BE DENIED THE RIGHT TO VOTE FOR ELECTORS FOR PRESIDENT
AND VICE PRESIDENT, OR FOR PRESIDENT AND VICE PRESIDENT, IN SUCH
ELECTION BECAUSE OF THE FAILURE OF SUCH CITIZEN TO BE PHYSICALLY
PRESENTIN SUCH STATE OR POLITICAL SUBDIVISION AT THE TIME OF SUCH
ELECTION, IF SUCH CITIZEN SHALL HAVE COMPLIED WITH THE REQUIREMENTS
PRESCRIBED BY THE LAW OF SUCH STATE OR POLITICAL SUBDIVISION PROVIDING
FOR THE CASTING OF ABSENTEE BALLOTS IN SUCH ELECTION. 

(D) FOR THE PURPOSES OF THIS SECTION, EACH STATE SHALL PROVIDE BY
LAW FOR THE REGISTRATION OR OTHER MEANS OF QUALIFICATION OF ALL DULY
QUALIFIED RESIDENTS OF SUCH STATE WHO APPLY, NOT LATER THAN THIRTY DAYS
IMMEDIATELY PRIOR TO ANY PRESIDENTIAL ELECTION, FOR REGISTRATION OR
QUALIFICATION TO VOTE FOR THE CHOICE OF ELECTORS FOR PRESIDENT AND VICE
PRESIDENT OR FOR PRESIDENT AND VICE PRESIDENT IN SUCH ELECTION; AND
EACH STATE SHALL PROVIDE BY LAW FOR THE CASTING OF ABSENTEE BALLOTS FOR
THE CHOICE OF ELECTORS FOR PRESIDENT AND VICE PRESIDENT, OR FOR
PRESIDENT AND VICE PRESIDENTBY ALL DULY QUALIFIED RESIDENTS OF SUCH
STATE WHO MAY BE ABSENT FROM THEIR ELECTION DISTRICT OR UNIT IN SUCH
STATE ON THE DAY SUCH ELECTION IS HELD AND WHO HAVE APPLIED THEREFOR
NOT LATER THAN SEVEN DAYS IMMEDIATELY PRIOR TO SUCH ELECTION AND HAVE
RETURNED SUCH BALLOTS TO THE APPROPRIATE ELECTION OFFICIAL OF SUCH
STATE NOT LATER THAN THE TIME OF CLOSING OF THE POLLS IN SUCH STATE ON
THE DAY OF SUCH ELECTION. 

(E) IF ANY CITIZEN OF THE UNITED STATES WHO IS OTHERWISE QUALIFIED
TO VOTE IN ANY STATE OR POLITICAL SUBDIVISION IN ANY ELECTION FOR
PRESIDENT AND VICE PRESIDENT HAS BEGUN RESIDENCE IN SUCH STATE OR
POLITICAL SUBDIVISION AFTER THE THIRTIETH DAY NEXT PRECEDING SUCH
ELECTION AND, FOR THAT REASON, DOES NOT SATISFY THE REGISTRATION
REQUIREMENTS OF SUCH STATE OR POLITICAL SUBDIVISION HE SHALL BE ALLOWED
TO VOTE FOR THE CHOICE OF ELECTORS FOR PRESIDENT AND VICE PRESIDENT, OR
FOR PRESIDENT AND VICE PRESIDENT, IN SUCH ELECTION, (1) IN PERSON IN
THE STATE OR POLITICAL SUBDIVISION IN WHICH HE RESIDED IMMEDIATELY
PRIOR TO HIS REMOVAL IF HE HAD SATISFIED, AS OF THE DATE OF HIS CHANGE
OF RESIDENCE, THE REQUIREMENTS TO VOTE IN THAT STATE OR POLITICAL
SUBDIVISION, OR (2) BY ABSENTEE BALLOT IN THE STATE OR POLITICAL
SUBDIVISION IN WHICH HE RESIDED IMMEDIATELY PRIOR TO HIS REMOVAL IF HE
SATISFIES, BUT FOR HIS NONRESIDENT STATUS AND THE REASON FOR HIS
ABSENCE, THE REQUIREMENTS FOR ABSENTEE VOTING IF THAT STATE OR
POLITICAL SUBDIVISION. 

(F) NO CITIZEN OF THE UNITED STATES WHO IS OTHERWISE QUALIFIED TO
VOTE BY ABSENTEE BALLOT IN ANY STATE OR POLITICAL SUBDIVISION IN ANY
ELECTION FOR PRESIDENT AND VICE PRESIDENT SHALL BE DENIED THE RIGHT TO
VOTE FOR THE CHOICE OF ELECTORS FOR PRESIDENT AND VICE PRESIDENT, OR
FOR PRESIDENT AND VICE PRESIDENT, IN SUCH ELECTION BECAUSE OF ANY
REQUIREMENT OF REGISTRATION THAT DOES NOT INCLUDE A PROVISION FOR
ABSENTEE REGISTRATION. 

(G) NOTHING IN THIS SECTION SHALL PREVENT ANY STATE OR POLITICAL
SUBDIVISION FROM ADOPTING LESS RESTRICTIVE VOTING PRACTICES THAN THOSE
THAT ARE PRESCRIBED HEREIN. 

        SEPARABILITY 

SEC. 205.  IF ANY PROVISION OF THIS ACT OR THE APPLICATION OF ANY
PROVISION THEREOF TO ANY PERSON OR CIRCUMSTANCE IS JUDICIALLY
DETERMINED TO ?BE INVALID, THE REMAINDER OF THIS ACT OR THE APPLICATION
OF SUCH PROVISION TO OTHER PERSONS OR CIRCUMSTANCES SHALL NOT BE
AFFECTED BY SUCH DETERMINATION. 

        TITLE III-- REDUCING VOTING AGE TO EIGHTEEN IN FEDERAL,

     STATE, AND LOCAL ELECTIONS

        DECLARATION AND FINDINGS 

SEC. 301.  (A) THE CONGRESS FINDS AND DECLARES THAT THE IMPOSITION
AND APPLICATION OF THE REQUIREMENT THAT A CITIZEN BE TWENTY-ONE YEARS
OF AGE AS A PRECONDITION TO VOTING IN ANY PRIMARY OR IN ANY ELECTION-- 

(1) DENIES AND ABRIDGES THE INHERENT CONSTITUTIONAL RIGHTS OF
CITIZENS EIGHTEEN YEARS OF AGE BUT NOT YET TWENTY-ONE YEARS OF AGE TO
VOTE-- A PARTICULARLY UNFAIR TREATMENT OF SUCH CITIZENS IN VIEW OF THE
NATIONAL DEFENSE RESPONSIBILITIES IMPOSED UPON SUCH CITIZENS; 

(2) HAS THE EFFECT OF DENHING TO CITIZENS EIGHTEEN YEARS OF AGE BUT
NOT YET TWENTY-ONE YEARS OF AGE THE DUE PROCESS AND EQUAL PROTECTION OF
THE LAWS THAT ARE GUARANTEED TO THEM UNDER THE FOURTEENTH AMENDMENT OF
THE CONSTITUTION AND 

(3) DOES NOT BEAR A REASONABLE RELATIONSHIP TO ANY COMPELLING STATE
INTEREST. 

(B) IN ORDER TO SECURE THE CONSTITUTIONAL RIGHTS SET FORTH IN
SUBSECTION (A), THE CONGRESS DECLARES THAT IT IS NECESSARY TO PROHIBIT
THE DENIAL OF THE RIGHT TO VOTE TO CITIZENS OF THE UNITED STATES
EIGHTEEN YEARS OF AGE OR OVER. 

        PROHIBITION 

SEC. 302.  EXCEPT AS REQUIRED BY THE CONSTITUTION, NO CITIZEN OF THE
UNITED STATES WHO IS OTHERWISE QUALIFIED TO VOTE IN ANY STATE OR
POLITICAL SUBDIVISION IN ANY PRIMARY OR IN ANY ELECTION SHALL BE DENIED
THE RIGHT TO VOTE IN ANY SUCH PRIMARY OR ELECTION ON ACCOUNT OF AGE IF
SUCH CITIZEN IS EIGHTEEN YEARS OF AGE OR OLDER. 

        EFFECTIVE DATE 

SEC. 305.  THE PROVISIONS OF TITLE III SHALL TAKE EFFECT WITH
RESPECT TO ANY PRIMARY OR ELECTION HELD ON OR AFTER JANUARY 1, 1971. 

    ARIZONA CONSTITUTION 

ART. 7, SEC. 2.  NO PERSON SHALL BE ENTITLED TO VOTE AT ANY GENERAL
ELECTION, OR FOR ANY OFFICE THAT NOW IS, OR HEREAFTER MAY BE, ELECTIVE
BY THE PEOPLE, OR UPON ANY QUESTION WHICH MAY BE SUBMITTED TO A VOTE OF
THE PEOPLE, UNLESS SUCH PERSON BE A CITIZEN OF THE UNITED STATES OF THE
AGE OF TWENTY-ONE YEARS OF OVER, AND SHALL HAVE RESIDED IN THE STATE
ONE YEAR IMMEDIATELY PRECEDING SUCH ELECTION, PROVIDED THAT
QUALIFICATIONS FOR VOTERS AT A GENERAL ELECTION FOR THE PURPOSE OF
ELECTING PRESIDENTIAL ELECTORS SHALL BE AS PRESCRIBED BY LAW.  THE WORD
"CITIZEN" SHALL INCLUDE PERSONS OF THE MALE AND FEMALE SEX. 

        ARIZONA REVISED STATUTES ANNOTATED 

SEC. 16-101.  QUALIFICATIONS OF ELECTOR 

A. EVERY RESIDENT OF THE STATE IS QUALIFIED TO BECOME AN ELECTOR AND
MAY REGISTER TO VOTE AT ALL ELECTIONS AUTHORIZED BY LAW IF HE: 

1.  IS A CITIZEN OF THE UNITED STATES. 

2.  WILL BE TWENTY-ONE YEARS OR MORE OF AGE PRIOR TO THE REGULAR
GENERAL ELECTION NEXT FOLLOWING HIS REGISTRATION. 

3.  WILL HAVE BEEN A RESIDENT OF THE STATE ONE YEAR AND OF THE
COUNTY IN WHICH HE CLAIMS THE RIGHT TO VOTE THIRTY DAYS NEXT PRECEDING
THE ELECTION. 

4.  IS ABLE TO READ THE CONSTITUTION OF THE UNITED STATES IN THE
ENGLISH LANGUAGE IN A MANNER SHOWING THAT HE IS NEITHER PROMPTED NOR
RECITING FROM MEMORY, UNLESS PREVENTED FROM SO DOING BY PHYSICAL
DISABILITY. 

5.  IS ABLE TO WRITE HIS NAME, UNLESS PREVENTED FROM SO DOING BY
PHYSICAL DISABILITY. 

B. AT AN ELECTION HELD BETWEEN THE DATE OF REGISTRATION AND THE NEXT
REGULAR GENERAL ELECTION, THE ELECTOR IS ELIGIBLE TO VOTE IF AT THE
DATE OF THE INTERVENING ELECTION HE IS TWENTY-ONE YEARS OF AGE AND HAS
BEEN A RESIDENT OF THE STATE ONE YEAR AND THE COUNTY THIRTY DAYS. 

C. A PERSON CONVICTED OF TREASON OR A FELONY, UNLESS RESTORED TO
CIVIL RIGHTS, OR AN IDIOT, INSANE PERSON OR PERSON UNDER GUARDIANSHIP
IS NOT QUALIFIED TO REGISTER.  AS AMENDED, LAWS 1970, C. 151, SEC. 1. 

SEC. 16-107.  CLOSING OF REGISTRATIONS. 

A. NO ELECTOR SHALL BE REGISTERED TO VOTE BETWEEN FIVE O'CLOCK P.M.
OF THE DAY WHICH IS TWO MONTHS PRECEDING THE DATE OF THE NEXT PRIMARY
ELECTION AND SEVEN O'CLOCK P.M. OF THE DAY OF THE PRIMARY ELECTION. 

B. NO ELECTOR SHALL BE REGISTERED TO VOTE BETWEEN FIVE O'CLOCK P.M.
OF THE EIGHTH MONDAY PRECEDING A GENERAL ELECTION AND SEVEN O'CLOCK
P.M. OF THE DAY THEREOF.  AS AMENDED, LAWS 1958, C. 48, SEC. 1; LAWS
1970, C. 151, SEC. 5. 

        IDAHO CONSTITUTION 

ART. 6, SEC. 2.  QUALIFICATIONS OF ELECTORS.-- EXCEPT AS IN THIS
ARTICLE OTHERWISE PROVIDED, EVERY MALE OR FEMALE CITIZEN OF THE UNITED
STATES, TWENTY-ONE YEARS OLD, WHO HAS ACTUALLY RESIDED IN THIS STATE OR
TERRITORY FOR SIX MONTHS, AND IN THE COUNTY WHERE HE OR SHE OFFERS TO
VOTE, THIRTY DAYS NEXT PRECEDING THE DAY OF ELECTION, IF REGISTERED AS
PROVIDED BY LAW, IS A QUALIFIED ELECTOR; PROVIDED HOWEVER, THAT EVERY
CITIZEN OF THE UNITED STATES, TWENTY-ONE YEARS OLD, WHO HAS ACTUALLY
RESIDED IN THIS STATE FOR SIXTY DAYS NEXT PRECEDING THE DAY OF
ELECTION, IF REGISTERED AS REQUIRED BY LAW, IS A QUALIFIED ELECTOR FOR
THE SOLE PURPOSE OF VOTING FOR PRESIDENTIAL ELECTORS; AND UNTIL
OTHERWISE PROVIDED BY THE LEGISLATURE, WOMEN WHO HAVE THE
QUALIFICATIONS PRESCRIBED IN THIS ARTICLE MAY CONTINUE TO HOLD SUCH
SCHOOL OFFICES AND VOTE AT SUCH SCHOOL ELECTIONS AS PROVIDED BY THE
LAWS OF IDAHO TERRITORY. 

        IDAHO CODE 

SEC. 34-401.  QUALIFICATIONS OF VOTERS.-- EVERY PERSON OVER THE AGE
OF TWENTY-ONE (21) YEARS, POSSESSING THE QUALIFICATIONS FOLLOWING,
SHALL BE ENTITLED TO VOTE AT ALL ELECTIONS:  HE SHALL BE A CITIZEN OF
THE UNITED STATES AND SHALL HAVE RESIDED IN THIS STATE SIX (6) MONTHS
IMMEDIATELY PRECEDING THE ELECTION AT WHICH HE OFFERS TO VOTE, AND IN
THE COUNTY THIRTY (30) DAYS:  PROVIDED, THAT NO PERSON SHALL BE
PERMITTED TO VOTE AT ANY COUNTY SEAT ELECTION WHO HAS NOT RESIDED IN
THE COUNTY SIX (6) MONTHS, AND IN THE PRECINCT NINETY (90) DAYS, WHERE
HE OFFERS TO VOTE; NOR SHALL ANY PERSON BE PERMITTED TO VOTE AT ANY
ELECTION FOR THE DIVISION OF THE COUNTY, OR STRIKING OFF FROM ANY
COUNTY ANY PART THEREOF, WHO HAS NOT THE QUALIFICATIONS PROVIDED FOR IN
DENIED THE RIGHT TO VOTE AT ANY SCHOOL DISTRICT ELECTION, NOR TO HOLD
ANY SCHOOL DISTRICT OFFICE ON ACCOUNT OF SEX. 

34-408.  ELIGIBILITY OF NEW RESIDENTS TO VOTE.-- EACH CITIZEN OF THE
UNITED STATES WHO, IMMEDIATELY PRIOR TO HIS REMOVAL TO THIS STATE, WAS
A CITIZEN OF ANOTHER STATE AND WHO HAS BEEN A RESIDENT OF THIS STATE
FOR SIXTY (60) DAYS NEXT PRECEDING THE DAY OF ELECTION BUT FOR LESS
THAN THE SIX (6) MONTH PERIOD OF REQUIRED RESIDENCE FOR VOTING PRIOR TO
A PRESIDENTIAL ELECTION, IS ENTITLED TO VOTE FOR PRESIDENTIAL AND VICE
PRESIDENTIAL ELECTORS AT THAT ELECTION BUT FOR NO OTHER OFFICES, IF 

(1) HE OTHERWISE POSSESSES THE SUBSTANTIVE QUALIFICATIONS TO VOTE IN
THIS STATE, EXCEPT THE REQUIREMENT OF RESIDENCE AND REGISTRATION, AND 

(2) HE COMPLIES WITH THE PROVISIONS OF THIS ACT. 

34-409.  APPLICATION FOR PRESIDENTIAL BALLOT BY NEW RESIDENTS.-- A
PERSON DESIRING TO QUALIFY UNDER THIS ACT IN ORDER TO VOTE FOR
PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTORS SHALL BE CONSIDERED AS
REGISTERED WITHIN THE MEANING OF THIS ACT IF ON OR BEFORE TEN (10) DAYS
PRIOR TO THE DATE OF THE GENERAL ELECTION, HE SHALL MAKE AN APPLICATION
IN THE FORM OF AN AFFADAVIT EXECUTED IN DUPLICATE IN THE PRESENCE OF
THE COUNTY AUDITOR, SUBSTANTIALLY AS FOLLOWS.  . . . 

34-413.  VOTING BY NEW RESIDENTS.-- (1) THE APPLICANT, UPON
RECEIVING THE BALLOT FOR PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTORS
SHALL MARK FORTHWITH THE BALLOT IN THE PRESENCE OF THE OCUNTY AUDITOR,
BUT IN A MANNER THAT THE OFFICIAL CANNOT KNOW HOW THE BALLOT IS
MARKED.  HE SHALL THEN FOLD THE BALLOT IN THE COUNTY AUDITOR'S PRESENCE
SO AS TO CONCEAL THE MARKINGS, AND DEPOSIT AND SEAL IT IN AN ENVELOPE
FURNISHED BY THE COUNTY AUDITOR.     34-1101.  ABSENT VOTING
AUTHORIZED.-- ANY QUALIFIED ELECTOR OF THE STATE OF IDAHO WHO IS ABSENT
OR EXPECTS TO BE ABSENT FROM THE ELECTION PRECINCT IN WHICH HE RESIDES
ON THE DAY OF HOLDING ANY ELECTION UNDER ANY OF THE LAWS OF THIS STATE
IN WHICH AN OFFICIAL BALLOT IS REQUIRED, OR WHO IS WITHIN THE ELECTION
PRECINCT AND IS, OR WILL BE, UNABLE, BECAUSE OF PHYSICAL DISABILITY, OR
BECAUSE OF BLINDNESS, TO GO TO THE VOTING PLACE, AND IF REGISTRATION IS
REQUIRED FOR SUCH ELECTION, WH O IS DULY REGISTERED THEREFOR, MAY VOTE
AT ANY SUCH ELECTION, AS HEREINAFTER PROVIDED. 

34-1105.  RETURN OF BALLOT.-- ON MARKING SUCH BALLOT OR BALLOTS SUCH
ABSENT OR DISABLED OR BLIND ELECTOR SHALL REFOLD SAME AS THERETOFORE
FOLDED AND SHALL INCLOSE THE SAME IN SAID OFFICIAL ENVELOPE AND SEAL
SAID ENVELOPE SECURELY AND MAIL BY REGISTERED OR CERTIFIED MAIL OR
DELIVER IT IN PERSON TO THE OFFICER WHO ISSUED SAME; PROVIDED, THAT AN
ABSENTEE BALLOT MUST BE RECEIVED BY THE ISSUING OFFICER BY 12:00
O'CLOCK NOON ON THE DAY OF THE ELECTION BEFORE SUCH BALLOT MAY BE
COUNTED.  SAID BALLOT OR BALLOTS SHALL BE SO MARKED, FOLDED AND SEALED
BY SAID VOTER IN PRIVATE AND SECRETLY.  PROVIDED, THAT WHENEVER THE
DISABILITY OR BLINDNESS MAKES IT NECESSARY THAT THE VOTER SHALL BE
ASSISTED IN MARKING HIS BALLOT, SUCH VOTER MAY HAVE THE ASSISTANCE OF
ANY PERSON OF HIS CHOICE IN MARKING HIS BALLOT. 

    OREGON CONSTITUTION 

ART. II, SEC. 2.  QUALIFICATIONS OF ELECTORS.  (1) EVERY CITIZEN OF
THE UNITED STATES IS ENTITLED TO VOTE IN ALL ELECTIONS NOT OTHERWISE
PROVIDED FOR BY THIS CONSTITUTION IF SUCH CITIZEN: 

(A) IS 21 YEARS OF AGE OR OLDER . . . .

        TEXAS CONSTITUTION 

ART. 6, SEC. 1.  CLASSES OF PERSONS NOT ALLOWED TO VOTE 

VOTE IN THIS STATE, TO WIT: 

FIRST:  PERSONS UNDER TWENTY-ONE (21) YEARS OF AGE. 

SECOND:  IDIOTS AND LUNATICS. 

THIRD:  ALL PAUPERS SUPPORTED BY ANY COUNTY. 

FOURTH:  ALL PERSONS CONVICTED OF ANY FELONY, SUBJECT TO SUCH
EXCEPTIONS AS THE LEGISLATURE MAY MAKE. 

SEC. 2.  QUALIFIED ELECTOR; REGISTRATION; ABSENTEE VOTING. 

SEC. 2.  EVERY PERSON SUBJECT TO NONE OF THE FOREGOING
DISQUALIFICATIONS WHO SHALL HAVE ATTAINED THE AGE OF TWENTY-ONE (21)
YEARS AND WHO SHALL BE A CITIZEN OF THE UNITED STATES AND WHO SHALL
HAVE RESIDED IN THIS STATE ONE (1) YEAR NEXT PRECEDING AN ELECTION AND
THE LAST SIX (6) MONTHS WITHIN THE DISTRICT OR COUNTY IN WHICH SUCH
PERSON OFFERS TO VOTE, SHALL BE DEEMED A QUALIFIED ELECTOR; PROVIDED,
HOWEVER, THAT BEFORE OFFERING TO VOTE AT AN ELECTION A VOTER SHALL HAVE
REGISTERED ANNUALLY, BUT SUCH REQUIREMENT FOR REGISTRATION SHALL NOT BE
CONSIDERED A QUALIFICATION OF AN ELECTOR WITHIN THE MEANING OF THE TERM
"QUALIFIED ELECTOR" AS USED IN ANY OTHER ARTICLE OF THIS CONSTITUTION
IN RESPECT TO ANY MATTER EXCEPT QUALIFICATION AND ELIGIBILITY TO VOTE
AT AN ELECTION.  ANY LEGISLATION ENACTED IN ANTICIPATION OF THE
ADOPTION OF THIS AMENDMENT SHALL NOT BE INVALID BECAUSE OF ITS
ANTIPATORY NATURE.  THE LEGISLATURE MAY AUTHORIZE ABSENTEE VOTING.  AND
THIS PROVISION SHALL BE SELF-ENACTING WITHOUT THE NECESSITY OF FURTHER
LEGISLATION. 

  TEXAS ELECTION CODE 

ARTICLE 5.01.  CLASSES OF PERSONS NOT QUALIFIED TO VOTE 

THE FOLLOWING CLASSES OF PERSONS SHALL NOT BE ALLOWED TO VOTE IN
THIS STATE: 

1.  PERSONS UNDER TWENTY-ONE YEARS OF AGE. 

2.  IDIOTS AND LUNATICS. 

3.  ALL PAUPERS SUPPORTED BY THE COUNTY. 

4.  ALL PERSONS CONVICTED OF ANY FELONY EXCEPT THOSE RESTORED TO
FULL CITIZENSHIP AND RIGHT OF SUFFRAGE OR PARDONED. 

ART. 5.02.  QUALIFICATION AND REQUIREMENTS FOR VOTING 

EVERY PERSON SUBJECT TO NONE OF THE FOREGOING DISQUALIFICATIONS WHO
SHALL HAVE ATTAINED THE AGE OF TWENTY-ONE YEARS AND SHALL HAVE RESIDED
IN THIS STATE ONE YEAR NEXT PRECEDING AN ELECTION AND THE LAST SIX
MONTHS WITHIN THE DISTRICT OR COUNTY IN WHICH SUCH PERSON OFFERS TO
VOTE, AND WHO SHALL HAVE REGISTERED AS A VOTER, SHALL BE DEEMED A
QUALIFIED ELECTOR.  NO PERSON SHALL BE PERMITTED TO VOTE UNLESS HE HAS
REGISTERED IN ACCORDANCE WITH THE PROVISIONS OF THIS CODE.  THE
PROVISIONS OF THIS SECTION, AS MODIFIED BY SECTIONS 35 AND 39 OF THIS
CODE, SHALL APPLY TO ALL ELECTIONS, INCLUDING GENERAL, SPECIAL, AND
PRIMARY ELECTIONS, WHETHER HELD BY THE STATE, BY COUNTY, MUNICIPALITY,
OR OTHER POLITICAL SUBDIVISION OF THE STATE, OR BY A POLITICAL PARTY. 

MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, AND MR. JUSTICE MARSHALL
DISSENT FROM THE JUDGMENTS INSOFAR AS THEY DECLARE SEC. 302
UNCONSTITUTIONAL AS APPLIED TO STATE THE LOCAL ELECTIONS, AND CONCUR IN
THE JUDGMENTS IN ALL OTHER RESPECTS, FOR THE FOLLOWING REASONS. 

THESE CASES DRAW INTO QUESTION THE POWER AND JUDGMENT OF CONGRESS IN
ENACTING TITLES II AND III OF THE VOTING RIGHTS ACT AMENDMENTS OF 1970,
84 STAT. 314.  THE STATE OF ARIZONA CHALLENGES THE POWER OF CONGRESS TO
IMPOSE A NATIONWIDE BAN, UNTIL AUGUST 6, 1975, ON THE USE OF LITERACY
AND CERTAIN OTHER TESTS TO LIMIT THE FRANCHISE IN ANY ELECTION.  THE
STATE OF IDAHO TAKES ISSUE WITH THE ASSERTED CONGRESSIONAL POWER TO
FIND THAT THE IMPOSITION OF A DURATIONAL RESIDENCE REQUIREMENT TO DENY
THE RIGHT TO VOTE IN ELECTIONS FOR PRESIDENT AND VICE PRESIDENT IMPOSES
A BURDEN UPON THE RIGHT OF FREE ENTERSTATE MIGRATION THAT IS NOT
NECESSARY TO FURTHER A COMPELLING STATE INTEREST.  /1/  FINALLY, THE
STATES OF OREGON, TEXAS, ARIZONA, AND IDAHO WOULD HAVE US STRIKE DOWN
AS UNREASONABLE AND BEYOND CONGRESSIONAL POWER THE FINDINGS, EMBODIED
IN SEC. 301(A) OF THE AMENDMENTS, THAT DENYING THE VOTE TO OTHERWISE
QUALIFIED PERSONS 18 TO 21 YEARS OF AGE, WHILE GRANTING IT TO THOSE 21
YEARS OF AGE AND OLDER, VIOLATES THE EQUAL PROTECTION CLAUSE AND IS, IN
ANY EVENT, NOT REASONABLY RELATED TO ANY COMPELLING STATE INTEREST. 
/2/  IN NOS. 43, ORIG., AND 44, ORIG., OREGON AND TEXAS HAVE INVOKED
OUR ORIGINAL JURISDICTION UNDER ART. III, SEC. 2, OF THE CONSTITUTION
TO RESTRAIN THE ATTORNEY GENERAL OF THE UNITED STATES, A CITIZEN OF NEW
YORK, FROM ENFORCING THE 18-YEAR-OLD VOTING PROVISIONS OF THE
AMENDMENTS.  SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301, 307 (1966). 
IN NOS. 46, ORIG., AND 47, ORIG., THE UNITED STATES SEEKS ORDERS
ENJOINING ARIZONA FROM ENFORCING AGE AND LITERACY LIMITATIONS ON THE
FRANCHISE, /3/  AND ENJOINING IDAHO FROM ENFORCING AGE, RESIDENCE AND
ABSENTEE VOTING LIMITATIONS, /4/  INSOFAR AS THOSE LIMITATION ARE
INCONSISTENT WITH THE 1970 AMENDMENTS.  ORIGINAL JURISDICTION, AGAIN,
IS FOUNDED UPON ART. III, SEC. 2, OF THE CONSTITUTION.  SEE UNITED
STATES V. CALIFORNIA, 332 U.S. 19, 22 (1947).  SINCE, IN OUR VIEW,
CONGRESSIONAL POWER TO ENACT THE CHALLENGED AMENDMENT IS FOUND IN THE
ENFORCEMENT CLAUSES OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS, AND
SINCE WE MAY EASILY PERCEIVE A RATIONAL BASIS FOR THE CONGRESSIONAL
JUDGMENTS UNDERLYING EACH OF THEM, WE WOULD DENY RELIEF IN NOS. 43,
ORIG., AND 44, ORIG., AND ISSUE THE REQUESTED ORDERS IN NOS. 46, ORIG.,
AND 47, ORIG. 

        I 

THE VOTING RIGHTS ACT OF 1965, 79 STAT. 438, 42 U.S.C. 1973 ET SEQ.
(1964 ED., SUPP. V), PROSCRIBED THE USE OF ANY "TEST OR DEVICE,"  /5/
INCLUDING LITERACY TESTS, IN STATES OR THEIR POLITICAL SUBDIVISIONS
THAT FELL WITHIN A COVERAGE FORMULA SET FORTH IN SEC. 4(B) OF OF THE
1965 ACT.  42 U.S.C. 1973BA), (B) (1964 ED., SUPP. V.)  ALTHOUGH WE HAD
PREVIOUSLY CONCLUDED THAT LITERACY TESTS, FAIRLY ADMINISTERED, VIOLATE
NEITHER THE FOURTEENTH NOR THE FIFTEENTH AMENDMENT, LASSITER V.
NORTHAMPTON ELECTION BOARD, 360 U.S. 45 (1959), WE NEVERTHELESS UPHELD
THEIR SELECTIVE PROSCRIPTION BY CONGRESS.  SOUTH CAROLINA V.
KATZENBACH, 383 U.S. 301 (1966).  CANVASSING THE "VOLUMINOUS"
LEGISLATIVE HISTORY OF THE 1965 ACT, WE FOUND AMPLE BASIS FOR A
LEGISLATIVE CONCLUSION THAT SUCH A PROSCRIPTION WAS NECESSARY TO COMBAT
THE "INSIDIOUS AND PERVASIVE EVIL" OF RACIAL DISCRIMINATION WITH REGARD
TO VOTING.  ID., AT 308-315.  ACCORDINGLY, WE HELD THE PROSCRIPTION TO
BE WELL WITHIN THE POWER OF CONGRESS GRANTED BY SEC. 2 OF THE FIFTEENTH
AMENDMENT.  ID., AT 327-334.  THREE YEARS LATER, IN GASTON COUNTY V.
UNITED STATES, 395 U.S. 285 (1969), WE SUSTAINED APPLICATION OF THE BAN
ON LITERACY TESTS TO A COUNTY WHERE THERE WAS NO EVIDENCE THAT THE TEST
ITSELF WAS DISCRIMINATORY OR THAT-- AT LEAST SINCE 1962 /6/  -- IT HAD
BEEN ADMINISTERED IN A DISCRIMINATORY MANNER.  NOTWITHSTANDING THIS
FACT, WE NOTED THAT THE RECORD DID CONTAIN SUBSTANTIAL EVIDENCE THAT IN
YEARS PAST, "GASTON COUNTY (HAD) SYSTEMATICALLY DEPRIVED ITS BLACK
CITIZENS OF THE EDUCATIONAL OPPORTUNITIES IT GRANTED TO ITS WHITE
CITIZENS."  ID., AT 297.  SINCE THIS "IN TURN DEPRIVED THEM OF AN EQUAL
CHANCE TO PASS THE LITERACY TEST," ID., AT 291, EVEN IMPARTIAL
ADMINISTRATION OF AN IMPARTIAL TEST WOULD INEVITABLY RESULT IN JUST THE
DISCRIMINATION THAT CONGRESS AND THE FIFTEENTH AMENDMENT HAD SOUGHT TO
PROSCRIBE.  ID., AT 296-297; SEE SOUTH CAROLINA V. KATZENBACH, 383
U.S.,AT 308, 333-334. 

NO CHALLENGE IS MADE IN THE PRESENT CASES EITHER TO THE 1965 ACT OR
TO THE FIVE-YEAR EXTENTION OF ITS BAN ON "TESTS OR DEVICES" EMBODIED IN
TITLE I OF THE 1970 AMENDMENTS.  ARIZONA DOES, HOWEVER, CHALLENGE SEC.
201 OF THE AMENDMENTS, WHICH EXTENDS (UNTIL AUGUST 6, 1975) THE 1965
ACT'S SELECTIVE BAN ON THE USE OF "TESTS OR DEVICES" TO ALL STATES AND
POLITICAL SUBDIVISIONS IN WHICH IT IS NOT ALREADY IN FORCE BY VIRTUE OF
THE 1965 ACT.  IN SUBSTANCE, ARIZONA ARGUES THAT IT IS AND HAS BEEN
PROVIDING EDUCATION OF EQUAL QUALITY FOR ALL ITS CITIZENS; THAT ITS
LITERACY TEST IS BOTH FAIR AND FAIRLY ADMINISTERED; AND THAT THERE IS
NO EVIDENCE IN THE LEGISLATIVE RECORD UPON WHICH CONGRESS COULD HAVE
RELIED TO REACH A CONTRARY CONCLUSION.  IT URGES THAT TO THE EXTENT
THAT ANY CITIZENS OF ARIZONA HAVE BEEN DENIED THE RIGHT TO VOTE BECAUSE
OF ILLITERACY RESULTING FROM DISCRIMINATORY GOVERNMENTAL PRACTICES, THE
UNLAWFUL DISCRIMINATION HAS BEEN BY GOVERNMENTS OTHER THAN THE STATE OF
ARIZONA OR ITS POLITICAL SUBDIVISIONS.  ARIZONA, IT SUGGESTS, SHOULD
NOT HAVE ITS LAWS OVERRIDDEN TO CURE DISCRIMINATION ON THE PART OF
GOVERNMENTAL BODIES ELSEWHERE IN THE COUNTRY. 

WE NEED NOT QUESTION ARIZONA'S ASSERTIONS AS TO THE
NONDISCRIMINATORY CHARACTER, PAST AND PRESENT, OF ITS EDUCATIONAL
SYSTEM.  CONGRESSIONAL POWER TO REMEDY THE EVILS RESULTING FROM STATE
SPONSORED RACIAL DISCRIMINATION DOES NOT END WHEN THE SUBJECT OF THAT
DISCRIMINATION REMOVES HIMSELF FROM THE JURISDICTION IN WHICH THE
INJURY OCCURRED.  "THE CONSTITUTION WAS FRAMED UNDER THE DOMINION OF A
POLITICAL PHILOSOPHY LESS PAROCHIAL IN RANGE.  IT WAS FRAMED UPON THE
THEORY THAT THE PEOPLES OF THE SEVERAL STATES MUST SINK OR SWIM
TOGETHER, AND THAT IN THE LONG RUN PROSPERITY AND SALVATION ARE IN
UNION AND NOT DIVISION."  BALDWIN V. G.A.F. SEELIG, INC., 294 U.S. 511,
523 (1935); SEE EDWARDS V. CALIFORNIA, 314 U.S. 160, 173-176 (1941). 
IN UPHOLDING THE SUSPENSION OF LITERACY TESTS AS APPLIED TO GASTON
COUNTY UNDER THE 1965 ACT, WE COULD SEE "NO LEGAL SIGNIFICANCE" IN THE
POSSIBILITY THAT ADULT RESIDENTS OF THE COUNTY MIGHT HAVE RECEIVED
THEIR EDUCATION "IN OTHER COUNTIES OR STATES ALSO MAINTAINING
SEGREGATED AND UNEQUAL SCHOOL SYSTEMS."  GASTON COUNTY V. UNITED
STATES, 395 U.S.,AT 293 N. 9.  /7/ 

THE LEGISLATIVE HISTORY OF THE 1970 AMENDMENTS CONTAINS SUBSTANTIAL
INFORMATION UPON WHICH CONGRESS COULD HAVE BASED A FINDING THAT THE USE
OF LITERACY TESTS IN ARIZONA AND IN OTHER STATES WHERE THEIR USE WAS
NOT PROSCRIBED BY THE 1965 ACT HAS THE EFFECT OF DENYING THE VOTE TO
RACIAL MINORITIES WHOSE ILLITERACY IS NOT THE CONSEQUENCE OF A
PREVIOUS, GOVERNMENTALLY SPONSORED DENIAL OF EQUAL EDUCATIONAL
OPPORTUNITY.  THE ATTORNEY GENERAL OF ARIZONA TOLD THE SENATE
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS THAT MANY OLDER INDIANS IN THE
STATE WERE "NEVER PRIVILEGED TO ATTEND A FORMAL SCHOOL."  /8/
EXTENSIVE TESTIMONY BEFORE BOTH HOUSES INDICATED THAT RACIAL MINORITIES
HAVE LONG RECEIVED INFERIOR EDUCATIONAL OPPORTUNITIES THROUGHOUT THE
UNITED STATES.  /9/  AND INTERSTATE MIGRATION OF SUCH PERSONS,
PARTICULARLY OF NEGROES FROM THE SOUTHER STATES, HAS LONG BEEN A MATTER
OF COMMON KNOWLEDGE.  /10/ 

MOREOVER, CONGRESS WAS GIVEN TESTIMONY EXPLICITLY RELATING THE
DENIAL OF EDUCATIONAL OPPORTUNITY TO INABILITY TO PASS LITERACY TESTS
IN STATES NOT COVERED BY THE FORMULA CONTAINED IN THE 1965 ACT.  THE
UNITED STATES COMMISSION ON CIVIL RIGHTS REPORTED A SURVEY OF THE
NORTHERN AND WESTERN STATES WHICH CONCLUDED THAT LITERACY TESTS HAVE A
NEGATIVE INPUT UPON VOTER REGISTRATION WHICH "FALLS MOST HEAVILY ON
BLACKS AND PERSONS OF SPANISH SURNAME."  /11/  WITH REGARD SPECIFICALLY
TO ARIZONA, THE CHAIRMAN OF THE NAVAJO TRIBAL COUNCIL TESTIFIED THAT A
GREATER PERCENTAGE OF NAVAJOS ARE REGISTERED IN NEW MEXICO, WHICH HAS
NO LITERACY TEST, THAN IN ARIZONA.  /12/ 

IN SHORT, THERE IS NO QUESTION BUT THAT CONGRESS COULD LEGITIMATELY
HAVE CONCLUDED THAT THE USE OF LITERACY TESTS ANYWHERE IN THE UNITED
STATES HAS THE INEVITABLE EFFECT OF DENYING THE VOTE TO MEMBERS OF
RACIAL MINORITIES WHOSE INABILITY TO PASS SUCH TESTS IS THE DIRECT
CONSEQUENCE OF PREVIOUS GOVERNMENTAL DISCRIMINATION IN EDUCATION. 
ALMOST FIVE YEARS AGO, WE FOUND IN SEC. 2 OF THE FIFTEENTH AMENDMENT AN
AMPLE GRANT OF LEGISLATIVE POWER FOR CONGRESS TO DECREE A SELECTIVE
PROSCRIPTION OF SUCH TESTS IN CERTAIN PORTIONS OF THE COUNTRY.  SOUTH
CAROLINA V. KATZENBACH, 383 U.S.,AT 327-334.  WE HAVE SINCE HELD THAT
POWER AMPLE TO COVER THE PROSCRIPTION OF FAIR LITERACY TESTS, FAIRLY
ADMINISTERED, WHICH NEVERTHELESS OPERATE TO DISENFRANCHISE RACIAL
MINORITIES BECAUSE OF PREVIOUS GOVERNMENTAL DISCRIMINATION AGAINST THEM
IN EDUCATION.  GASTON COUNTY V. UNITED STATES, 395 U.S.,AT 287, 289
293.  FIVE YEARS OF EXPERIENCE WITH THE 1965 ACT PERSUADED CONGRESS
THAT A NATIONWIDE BAN ON LITERACY AND OTHER POTENTIALLY DISCRIMINATORY
TESTS WAS NECESSARY TO PREVENT RACIAL DISCRIMINATION IN VOTING
THROUGHOUT THE COUNTRY.  THAT CONCLUSION IS AMPLY SUPPORTED IN THE
LEGISLATIVE RECORD AND SEC. 201 OF THE 1970 AMENDMENTS IS ACCORDINGLY
WELL WITHIN THE SCOPE OF CONGRESSIONAL POWER.              II 

RESIDENCE REQUIREMENTS RESTRICTING THE RIGHT TO VOTE IN PRESIDENTIAL
ELECTIONS.  I THEIR PLACE, CONGRESS HAS UNDERTAKEN TO PRESCRIBE A
UNIFORM NATIONWIDE SYSTEM OF REGISTRATION AND ABSENTEE VOTING DESIGNED
TO ALLOW ALL OTHERWISE QUALIFIED PERSONS TO VOTE IN SUCH ELECTIONS
REGARDLESS OF THE LENGTH OF TIME THEY HAVE LIVED IN A PARTICULAR
JURISDICTION.  /13/  THE STATES ARE REQUIRED TO KEEP OPEN THEIR
REGISTRATION ROLLS FOR PRESIDENTIAL ELECTIONS UNTIL 30 DAYS PRECEDING
THE ELECTION.  SEC. 202(D).  PERSONS WHO HAVE CHANGED THEIR RESIDENCE
WITHIN 30 DAYS OF THE ELECTION ARE, IF OTHERWISE QUALIFIED, ENTITLED TO
VOTE EITHER IN PERSON OR BY ABSENTEE BALLOT IN THE STATE OF THEIR
PREVIOUS RESIDENCE, SEC. 202(E), AND THE STATES ARE COMPELLED TO PERMIT
THE CASTING OF ABSENTEE BALLOTS BY ALL PROPERLY QUALIFIED PERSONS WHO
HAVE MADE APPLICATION NOT LESS THAN SEVEN DAYS PRIOR TO THE ELECTION,
AND RETURNED THE BALLOT TO THE APPROPRIATE OFFICIALS NOT LATER THAN THE
CLOSING OF POLLS ON ELECTION DAY.  SECS. 202(B), (D).  PROVISION MUST
ALSO BE MADE BY THE STATES TO ALLOW ABSENTEE REGISTRATION.  SEC.
202(F). 

IDAHO CHALLENGES THE POWER OF CONGRESS TO ENACT SUCH LEGISLATION
INSOFAR AS IT CONFLICTS WITH IDAHO'S STATUTORY AND CONSTITUTIONAL
PROVISIONS REGARDING DURATIONAL RESIDENCE REQUIREMENTS FOR VOTING;
REGARDING ABSENTEE VOTING; AND REGARDING ABSENTEE REGISTRATION.  /14/
THE STATE'S ARGUMENT IN BRIEF IS THAT THE CONSTITUTION HAS LEFT TO THE
STATES THE POWER TO SET QUALIFICATIONS FOR VOTERS IN BOTH STATE AND
FEDERAL ELECTIONS, SUBJECT ONLY TO CERTAIN EXPLICIT LIMITATIONS SUCH
AS, FOR EXAMPLE, THOSE IMPOSED BY THE FOURTEENTH, FIFTEENTH,
NINETEENTH, AND TWENTY-FOURTH AMENDMENTS.  ADMITTING THAT UNREASONABLE
RESIDENCE REQUIREMENTS MAY NOT WITHSTAND JUDICIAL SCRUTINY, CARRINGTON
V. RASH, 380 U.S. 89 (1965), IDAHO URGES THAT ITS 60-DAY RESIDENCE
REQUIREMENT IS NECESSARY FOR PROTECTION AGAINST FRAUD, AND FOR
ADMINISTRATIVE PURPOSES.  IN CONSEQUENCE, SEC. 202 OF THE 1970
AMENDMENTS IS SAID TO BE OF NO WEIGHT AGAINST THESE COMPELLING STATE
INTERESTS. 

WHETHER OR NOT THE CONSTITUTION VESTS CONGRESS WITH PARTICULAR POWER
TO SET QUALIFICATIONS FOR VOTING IN STRICTLY FEDERAL ELECTIONS, /15/
WE BELIEVE THERE IS AN ADEQUATE CONSTITUTIONAL BASIS FOR SEC. 202 IN
SEC. 5 OF THE FOURTEENTH AMENDMENT.  FOR MORE THAN A CENTURY, THIS
COURT HAS RECOGNIZED THE CONSTITUTIONAL RIGHT OF ALL CITIZENS TO
UNHINDERED INTERSTATE TRAVEL AND SETTLEMENT.  PASSENGER CASES, 7 HOW. 
283, 492 (1849) (TANEY, C. J.); CRANDALL V. NEVADA, 6 WALL.  35, 43-44
(1868); PAUL V. VIRGINIA, 8 WALL.  168, 180 (1869); EDWARDS V.
CALIFORNIA, 314 U.S. 160 (1941); UNITED STATES V. GUEST, 383 U.S. 745,
757-758 (1966); SHAPIRO V. THOMPSON, 394 U.S. 618, 629-631, 634
(1969).  FROM WHATEVER CONSTITUTIONAL PROVISION THIS RIGHT MAY BE SAID
TO FLOW, /16/  BOTH ITS EXISTENCE AND ITS FUNDAMENTAL IMPORTANCE TO OUR
FEDERAL UNION HAVE LONG BEEN ESTABLISHED BEYOND QUESTION. 

BY DEFINITION, THE IMPOSITION OF A DURATIONAL RESIDENCE REQUIREMENT
OPERATES TO PENALIZE THOSE PERSONS, AND ONLY THOSE PERSONS, WHO HAVE
EXERCISED THEIR CONSTITUTIONAL RIGHT OT INTERSTATE MIGRATION.  OF
COURSE, GOVERNMENTAL ACTION THAT HAS THE INCIDENTAL EFFECT OF BURDENING
THE EXERCISE OF A CONSTITUTIONAL RIGHT IS NOT IPSO FACTO
UNCONSTITUTIONAL.  BUT IN SUCH A CASE, GOVERNMENTAL ACTION MAY
WITHSTAND CONSTITUTIONAL SCRUTINY ONLY UPON A CLEAR SHOWING THAT THE
BURDEN IMPOSED IS NECESSARY TO PROTECT A COMPELLING AND SUBSTANTIAL
GOVERNMENTAL INTEREST.  SHAPIRO V. THOMPSON, 394 U.S.,AT 634; UNITED
STATES V. JACKSON, 390 U.S. 570, 582-583 (1968); SHERBERT V. VERNER,
374 U.S. 398, 406-409 (1963).  AND ONCE IT BE DETERMINED THAT A BURDEN
HAS BEEN PLACED UPON A CONSTITUTIONAL RIGHT, THE ONUS OF DEMONSTRATING
THAT NO LESS INTRUSIVE MEANS WILL ADEQUATELY PROTECT COMPELLING STATE
INTERESTS IS UPON THE PARTY SEEKING TO JUSTIFY THE BURDEN.  SEE SPEISER
V. RANDALL, 357 U.S. 525-526 (1958). 

IN THE PRESENT CASE, CONGRESS HAS EXPLICITLY FOUND BOTH THAT THE
IMPOSITION OF DURATIONAL RESIDENCE REQUIREMENTS ABRIDGES THE RIGHT OF
FREE INTERSTATE MIGRATION AND THAT SUCH REQUIREMENTS ARE NOT REASONABLY
RELATED TO ANY COMPELLING STATE INTERESTS.  1970 AMENDMENTS, SECS.
202(A)(2), (6).  THE LATTER FINDING WAS MADE WITH FULL COGNIZANCE OF
THE POSSIBILITY OF FRAUD AND ADMINISTRATIVE DIFFICULTY.  SENATOR
GOLDWATER, TESTIFYING AT SENATE HEARINGS ON THE BILL, POINTED OUT THAT
40 STATES PRESENTLY ALLOW REGISTRATION UNTIL 30 DAYS OR LESS PRIOR TO
THE ELECTION.  /17/  IDAHO ITSELF ALLOWS REGISTRATION BY THOSE DESIRING
TO VOTE AS NEW RESIDENTS IN PRESIDENTIAL ELECTIONS WITHIN 10 DAYS OF
BALLOTING.  IDAHO CODE SEC. 34-409 (1963).  AND IDAHO'S ASSERTION OF
THE ADMINISTRATIVE UNFEASIBILITY OF MAINTAININT SEPARATE REGISTRATION
LISTS FOR FULLY QUALIFIED VOTERS AND FOR THOSE QUALIFIED ONLY FOR
PRESIDENTIAL BALLOTING IS DIFFICULT TO CREDIT IN LIGHT OF THE FACT THAT
THE IDAHO CONSTITUTION, ART. 6, SEC. 2, ITSELF SETS SEPARATE
QUALIFICATIONS FOR VOTING IN GENERAL AND IN PRESIDENTIAL ELECTIONS. 
THE PROVISIONS FOR ABSENTEE VOTING, AS SENATOR GOLDWATER POINTED OUT ON
THE FLOOR OF THE SENATE, WERE LIKEWISE "DRAWN FROM THE PROVEN PRACTICE
OF THE STATES THEMSELVES."  /18/  THIRTY-SEVEN STATES ALLOW APPLICATION
WITHIN A WEEK OF THE ELECTION, AND 40 PERMIT THE MARKED BALLOT TO BE
RETURNED ON ELECTION DAY.  /19/  FINALLY, IDAHO HAS PROVIDED NO
EVIDENCE BEYOND THE MERE ASSERTION THAT THE SCHEME OF SEC. 202 IS
INADEQUATE TO PROTECT AGAINST FRAUD.  BUT THE ONLY KIND OF FRAUD
ASSERTED IS THE POSSIBILITY OF DUAL VOTING, AND IDAHO HAS PROVIDED NO
EXPLANATION WHY THE 30-DAY PERIOD BETWEEN THE CLOSING OF NEW
REGISTRATIONS AND THE DATE OF ELECTION WOULD NOT PROVIDE, IN LIGHT OF
MODERN COMMUNICATIONS, ADEQUATE TIME TO INSURE AGAINST SUCH FRAUDS. 
ACCORDINGLY, WE FIND AMPLE JUSTIFICATION FOR THE CONGRESSIONAL
CONCLUSION THAT SEC. 202 IS A REASONABLE MEANS FOR ELIMINATING AN
UNNECESSARY BURDEN ON THE RIGHT OF INTERSTATE MIGRATION.  UNITED STATES
V. GUEST, SUPRA.

 III 

THE FINAL QUESTION PRESENTED BY THESE CASES IS THE PROPRIETY OF
TITLE III OF THE 1970 AMENDMENTS, WHICH FORBIDS THE STATES FROM
DISENFRANCHISING PERSONS OVER THE AGE OF 18 BECAUSE OF THEIR AGE. 
CONGRESS WAS OF THE VIEW THAT THIS PROHIBITION, EMBODIED IN SEC. 302 OF
THE AMENDMENTS, WAS NECESSARY AMONG OTHER REASONS IN ORDER TO ENFORCE
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  SEE SECS.
301(A)(2), (B).  THE STATES INVOLVED IN THE PRESENT LITIGATION QUESTION
THE ASSERTION OF CONGRESSIONAL POWER TO MAKE THAT JUDGMENT. 

IT IS IMPORTANT AT THE OUTSET TO RECOGNIZE WHAT IS NOT INVOLVED IN
THESE CASES.  WE ARE NOT FACED WITH AN ASSERTION OF CONGRESSIONAL POWER
TO REGULATE ANY AND ALL ASPECTS OF STATE AND FEDERAL ELECTIONS, OR EVEN
TO MAKE GENERAL RULES FOR THE DETERMINATION OF VOTER QUALIFICATIONS. 
NOR ARE WE FACED WITH THE ASSERTION THAT CONGRESS IS POSSESSED OF
PLENARY POWER TO SET MINIMUM AGES FOR VOTING THROUGHOUT THE STATES. 
EVERY STATE IN THE UNION HAS CONCEDED BY STATUTE THAT CITIZENS 21 YEARS
OF AGE AND OVER ARE CAPABLE OF INTELLIGENT AND RESPONSIBLE EXERCISE OF
THE RIGHT TO VOTE.  THE SINGLE, NARROW QUESTION PRESENTED BY THESE
CASES IS WHETHER CONGRESS WAS EMPOWERED TO CONCLUDE, AS IT DID, THAT
CITIZENS 18 TO 21 YEARS OF AGE ARE NOT SUBSTANTIALLY LESS ABLE. 

WE BELIEVE THERE IS A SERIOUS QUESTION WHETHER A STATUTE GRANTING
THE FRANCHISE TO CITIZENS 21 AND OVER WHILE DENYING IT TO THOSE BETWEEN
THE AGES OF 18 AND 21 COULD, IN ANY EVENT, WITHSTAND PRESENT SCRUTINY
UNDER THE EQUAL PROTECTION CLAUSE.  REGARDLESS OF THE ANSWER TO THIS
QUESTION, HOWEVER, IT IS CLEAR TO US THAT PROPER REGARD FOR THE SPECIAL
FUNCTION OF CONGRESS IN MAKING DETERMINATIONS OF LEGISLATIVE FACT
COMPELS THIS COURT TO RESPECT THOSE DETERMINATIONS UNLESS THEY ARE
CONTRADICTED BY EVIDENCE FAR STRONGER THAN ANYTHING THAT HAS BEEN
ADDUCED IN THESE CASES.  WE WOULD UPHOLD SEC. 302 AS A VALID EXERCISE
OF CONGRESSIONAL POWER UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT. 

A 

ALL PARTIES TO THESE CASES ARE AGREED THAT THE STATES ARE GIVEN
POWER, UNDER THE CONSTITUTION, TO DETERMINE THE QUALIFICATIONS FOR
VOTING IN STATE ELECTIONS.  ART. I, SEC. 2; LASSITER V. NORTHAMPTON
ELECTION BOARD, 360 U.S. 45, 50 (1959); CARRINGTON V. RASH, 380 U.S.
89, 91 (1965).  BUT IT IS NOW SETTLED THAT EXERCISE OF THIS POWER, LIKE
ALL OTHER EXERCISES OF STATE POWER, IS SUBJECT TO THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  CARRINGTON V. RASH, SUPRA; HARPER
V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663 (1966); KRAMER V. UNION
SCHOOL DISTRICT, 395 U.S. 621 (1969); EVANS V. CORNMAN, 398 U.S. 419
(1970).  ALTHOUGH IT ONCE WAS THOUGHT THAT EQUAL PROTECTION REQUIRED
ONLY THAT A GIVEN LEGISLATIVE CLASSIFICATION, ONCE MADE, BE EVENLY
APPLIED, SEE HAYES V. MISSOURI, 120 U.S. 68, 71-72 (1887), FOR MORE
THAN 70 YEARS WE NAVE CONSISTENTLY HELD THAT THE CLASSIFICATIONS
EMBODIED IN A STATE STATUTE MUST ALSO MEET THE REQUIREMENTS OF EQUAL
PROTECTION.  GULF, C. & S.F.R. CO. V. ELLIS, 165 U.S. 150, 155 (1897);
SEE MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 189-191(1964), AND CASES
CITED. 

THE RIGHT TO VOTE HAS LONG BEEN RECOGNIZED AS A "FUNDAMENTAL
POLITICAL RIGHT, BECAUSE PRESERVATIVE OF ALL RIGHTS."  YICK WO V.
HOPKINS, 118 U.S. 356, 370 (1886); SEE REYNOLDS V. SIMS, 377 U.S. 533,
562 (1964); WILLIAMS V. RHODES, 393 U.S. 23, 31 (1968).  "ANY
UNJUSTIFIED DISCRIMINATION IN DETERMINING WHO MAY PARTICIPATE IN
POLITICAL AFFAIRS . . . UNDERMINES THE LEGITIMACY OF REPRESENTATIVE
GOVERNMENT."  KRAMER V. UNION SCHOOL DISTRICT, 395 U.S.,AT 626. 
CONSEQUENTLY, WHEN EXCLUSIONS FROM THE FRANCHISE ARE CHALLENGED AS
VIOLATING THE EQUAL PROTECTION CLAUSE, JUDICIAL SCRUTINY IS NOT
CONFINED TO THE QUESTION WHETHER THE EXCLUSION MAY REASONABLY BE
THROUGHT TO FURTHER A PERMISSIBLE INTEREST OF THE STATE.  CF.
METROPOLITAN CAS. INS. CO. V. BROWNELL, 294 U.S. 580, 583-584 (1935). 
"A MORE EXACTING STANDARD OBTAINS."  KRAMER V. UNION SCHOOL DISTRICT,
395 U.S.,AT 633.  IN SUCH CASES, "THE COURT MUST DETERMINE WHETHER THE
EXCLUSIONS ARE NECESSARY TO PROMOTE A COMPELLING STATE INTEREST."  ID.,
AT 627; CIPRIANO V. CITY OF HOUMA, 395 U.S. 701, 704 (1969). 

IN THE PRESENT CASES, THE STATES JUSTIFY EXCLUSION OF 18-TO 21-YEAR
OLDS FROM THE VOTING ROLLS SOLELY ON THE BASIS OF THE STATES'
INTERESTS IN PROMOTING INTELLIGENT AND RESPONSIBLE EXERCISE OF THE
FRANCHISE.  /20/  THERE IS NO REASON TO QUESTION THE LEGITIMACY AND
IMPORTANCE OF THESE INTERESTS.  BUT STANDARDS OF INTELLIGENCE AND
RESPONSIBILITY, HOWEVER DEFINED, MAY PERMISSIBLY BE APPLIED ONLY TO THE
MEANS WHEREBY A PROSPECTIVE VOTER DETERMINES HOW TO EXERCISE HIS
CHOICE, AND NOT TO THE ACTUAL CHOICE ITSELF.  WERE IT OTHERWISE, SUCH
STANDARDS COULD ALL TOO EASILY SERVE AS MERE EPITHETS DESIGNED TO CLOAK
THE EXCLUSION OF A CLASS OF VOTERS SIMPLY BECAUSE OF THE WAY THEY MIGHT
VOTE.  CF. EVANS V. CORNMAN, 398 U.S.,AT 422-423.  SUCH A STATE PURPOSE
IS, OF COURSE, CONSTITUTIONALLY IMPERMISSIBLE.  CARRINGTON V. RASH, 380
U.S.,AT 94.  WE MUST, THEREFORE, EXAMINE WITH PARTICULAR CARE THE
ASSERTED CONNECTION BETWEEN AGE LIMITATIONS AND THE ADMITTEDLY LAUDABLE
STATE PURPOSE TO FURTHER INTELLIGENT AND RESPONSIBLE VOTING. 

WE DO NOT LACK A STARTING POINT FOR THIS INQUIRY.  ALTHOUGH THE
QUESTION HAS NEVER BEEN SQUARELY PRESENTED, WE HAVE IN THE PAST
INDICATED THAT AGE IS A FACTOR NOT NECESSARILY IRRELEVANT TO
QUALIFICATIONS FOR VOTING.  LASSITER V. NORTHAMPTON ELECTION BOARD, 360
U.S.,AT 51; KRAMER V. UNION SCHOOL DISTRICT, 395 U.S.,AT 625-626.  BUT
RECOGNITION THAT AGE IS NOT IN ALL CIRCUMSTANCES A "CAPRICIOUS OR
IRRELEVANT FACTOR,"  HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S.,
AT 668, DOES NOT INSURE THE VALIDITY OF THE PARTICULAR LIMITATION
INVOLVED HERE.  EVANS V. CORNMAN, 398 U.S.,AT 425-426.  EVERY STATE IN
THE UNION HAS CONCLUDED FOR ITSELF THAT CITIZENS 21 YEARS OF AGE AND
OVER ARE CAPABLE OF RESPONSIBLE AND INTELLIGENT VOTING.  ACCEPTING THIS
JUDGMENT, THERE REMAINS THE QUESTION WHETHER CITIZENS 18 TO 21 YEARS OF
AGE MAY FAIRLY BE SAID TO BE LESS ABLE. 

STATE PRACTICE ITSELF IN OTHER AREAS CASTS DOUBT UPON ANY SUCH
PROPOSITION.  EACH OF THE 50 STATES HAS PROVIDED SPECIAL MECHANISMS FOR
DEALING WITH PERSONS WHO ARE DEEMED INSUFFICIENTLY MATURE AND
INTELLIGENT TO UNDERSTAND, AND TO CONFORM THEIR BEHAVIOR TO, THE
CRIMINAL LAWS OF THE STATE.  /21/  FORTY-NINE OF THE STATES HAVE
CONCLUDED THAT, IN THIS REGARD, 18-YEAR-OLDS ARE INVARIABLY TO BE DEALT
WITH ACCORDING TO PRECISELY THE SAME STANDARDS PRESCRIBED FOR THEIR
ELDERS.  /22/  THIS AT THE VERY LEAST IS EVIDENCE OF A NEARLY UNANIMOUS
LEGISLATIVE JUDGMENT ON THE PART OF THE STATES THEMSELVES THAT
DIFFERENCES IN MATURITY AND INTELLIGENCE BETWEEN 18-YEAR-OLDS AND
PERSONS 21 YEARS OF AGE AND OVER ARE TOO TRIVIAL TO WARRANT SPECIALIZED
TREATMENT FOR ANY OF THE FORMER CLASS IN THE CRITICALLY IMPORTANT
MATTER OF CRIMINAL RESPONSIBILITY.  /23/  SIMILARLY, EVERY STATE
PERMITS 18-YEAR-OLDS TO MARRY, AND 39 STATES DO NOT REQUIRE PARENTAL
CONSENT FOR SUCH PERSONS OF ONE OR BOTH SEXES.  /24/  STATE STATUTORY
PRACTICE IN OTHER AREAS FOLLOWS ALONG THESE LINES, ALBEIT NOT AS
CONSISTENTLY.  /25/ 

UNIFORM STATE PRACTICE IN THE FIELD OF EDUCATION POINTS THE SAME
WAY.  NO STATE IN THE UNION REQUIRES ATTENDANCE AT SCHOOL BEYOND THE
ATE OF 18.  OF COURSE, MANY 18-YEAR-OLDS CONTINUE THEIR EDUCATION TO 21
AND BEYOND.  BUT NO 18-YEAR-OLD WHO DOES NOT DO SO WILL BE
DISENFRANCHISED THEREBY ONCE HE REACHES THE AGE OF 21.  /26/  WHETHER
OR NOT A STATE COULD IN ANY CIRCUMSTANCES CONDITION EXERCISE OF THE
FRANCHISE UPON EDUCATIONAL ACHIEVEMENTS BEYOND THE LEVEL REACHED BY 18
YEAR-OLDS TODAY, THERE IS NO QUESTION BUT THAT NO STATE PURPORTS TO DO
SO.  ACCORDINGLY, THAT 18-YEAR-OLDS AS A CLASS MAY BE LESS EDUCATED
THAN SOME OF OF THEIR ELDERS /27/  CANNOT JUSTIFY RESTRICTION OF THE
FRANCHISE, FOR THE STATES THEMSELVES HAVE DETERMINED THAT THIS
INCREMENTAL EDUCATION IS IRRELEVANT TO VOTING QUALIFICATIONS.  AND
FINALLY, WE HAVE BEEN CITED TO NO MATERIAL WHATSOEVER THAT WOULD
SUPPORT THE PROPOSITION THAT INTELLIGENCE, AS OPPOSED TO EDUCATIONAL
ATTAINMENT, INCREASES BETWEEN THE AGES OF 18 AND 21. 

ONE FINAL POINT REMAINS.  NO STATE SEEKING TO UPHOLD ITS DENIAL OF
THE FRANCHISE TO 18-YEAR-OLDS HAS ADDUCED ANYTHING BEYOND THE MERE
DIFFERENCE IN AGE.  WE HAVE ALREADY INDICATED THAT THE RELEVANCE OF
THIS DIFFERENCE IS CONTRADICTED BY NEARLY UNIFORM STATE PRACTICE IN
OTHER AREAS.  BUT PERHAPS MORE IMPORTANT IS THE UNIFORM EXPERIENCE OF
THOSE STATES-- GEORGIA SINCE 1943, AND KENTUCKY SINCE 1955-- THAT HAVE
PERMITTED 18-YEAR-OLDS TO VOTE.  /28/  WE HAVE NOT BEEN DIRECTED TO A
WORD OF TESTIMONY OR OTHER EVIDENCE THAT WOULD INDICATE EITHER THAT 18
YEAR-OLDS IN THOSE STATES HAVE VOTED ANY LESS INTELLIGENTLY AND
RESPONSIBLY THAN THEIR ELDERS, OR THAT THERE IS ANY REASONABLE GROUND
FOR BELIEF THAT 18-YEAR-OLDS IN OTHER STATES ARE LESS ABLE THAN THOSE
IN GEORGIA AND KENTUCKY.  ON THE OTHER HAND, EVERY PERSON WHO SPOKE TO
THE ISSUE IN EITHER THE HOUSE OR SENATE WAS AGREED THAT 18-YEAR-OLDS IN
BOTH STATES WERE AT LEAST AS INTERESTED, ABLE, AND RESPONSIBLE IN
VOTING AS WERE THEIR ELDERS.  /29/ 

IN SHORT, WE ARE FACED WITH AN ADMITTED RESTRICTION UPON THE
FRANCHISE, SUPPORTED ONLY BY BARE ASSERTIONS AND LONG PRACTICE, IN THE
FACE OF STRONG INDICATIONS THAT THE STATES THEMSELVES DO NOT CREDIT THE
FACTUAL PROPOSITIONS UPON WHICH THE RESTRICTION IS ASSERTED TO REST. 
BUT THERE IS NO REASON FOR US TO DECIDE WHETHER, IN A PROPER CASE, OF
THE EQUAL PROTECTION CLAUSE.  FOR AS OUR DECISIONS HAVE LONG MADE
CLEAR, THE QUESTION WE FACE TODAY IS NOT ONE OF JUDICIAL POWER UNDER
THE EQUAL PROTECTION CLAUSE.  THE QUESTION IS THE SCOPE OF
CONGRESSIONAL POWER UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT.  TO THAT
QUESTION WE NOW TURN. 

        B 

AS WE HAVE OFTEN INDICATED, QUESTIONS OF CONSTITUTIONAL POWER
FREQUENTLY TURN IN THE LAST ANALYSIS ON QUESTIONS OF FACT.  THIS IS
PARTICULARLY THE CASE WHEN AN ASSERTION OF STATE POWER IS CHALLENGED
UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  FOR
ALTHOUGH EQUAL PROTECTION REQUIRES THAT ALL PERSONS "UNDER LIKE
CIRCUMSTANCES AND CONDITIONS" BE TREATED ALIKE, HAYES V. MISSOURI, 120
U.S.,AT 71, SUCH A FORMULATION MERELY RAISES, BUT DOES NOT ANSWER THE
QUESTION WHETHER A LEGISLATIVE CLASSIFICATION HAS RESULTED IN DIFFERENT
TREATMENT OF PERSONS WHO ARE IN FACT "UNDER LIKE CIRCUMSTANCES AND
CONDITIONS." 

LEGISLATURES, AS WELL AS COURTS, ARE BOUND BY THE PROVISIONS OF THE
FOURTEENTH AMENDMENT.  COOPER V. AARON, 358 U.S. 1, 18-20 (1953).  WHEN
A STATE LEGISLATIVE CLASSIFICATION IS SUBJECTED TO JUDICIAL CHALLENGE
AS VIOLATING THE EQUAL PROTECTION CLAUSE, IT COMES BEFORE THE COURTS
CLOAKED BY THE PRESUMPTION THAT THE LEGISLATURE HAS, AS IT SHOULD,
ACTED WITHIN CONSTITUTIONAL LIMITATIONS.  KOTCH V. BOARD OF RIVER PORT
PILOTS, 330 U.S. 552, 556, 563-564 (1947); SEE KRAMER V. UNION SCHOOL
DISTRICT, 395 U.S.,AT 627-628.  ACCORDINGLY, "A STATUTORY
DISCRIMINATION WILL NOT BE SET ASIDE AS THE DENIAL OF EQUAL PROTECTION
OF THE LAWS IF ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO
JUSTIFY IT."  METROPOLITAN CAS. INS. CO. V. BROWNELL, 294 U.S.,AT 584. 

BUT, AS WE HAVE CONSISTENTLY HELD, THIS LIMITATION ON JUDICIAL
REVIEW OF STATE LEGISLATIVE CLASSIFICATIONS IS A LIMITATION STEMMING,
NOT FROM THE FOURTEENTH AMENDMENT ITSELF, BUT FROM THE NATURE OF
JUDICIAL REVIEW.  IT IS SIMPLY A "SALUTARY PRINCIPLE OF JUDICIAL
DECISION," METROPOLITAN CAS. INS. CO. V. BROWNELL, SUPRA, AT 584, ONE
OF THE "SELF-IMPOSED RESTRAINTS INTENDED TO PROTECT (THE COURT) AND THE
STATE AGAINST IRRESPONSIBLE EXERCISE OF (THE COURT'S) UNAPPEALABLE
POWER."  FAY V. NEW YORK, 332 U.S. 261, 282 (1947).  THE NATURE OF THE
JUDICIAL PROCESS MAKES IT AN INAPPROPRIATE FORUM FOR THE DETERMINATION
OF COMPLEX FACTUAL QUESTIONS OF THE KIND SO OFTEN INVOLVED IN
CONSTITUTIONAL ADJUDICATION.  COURTS, THEREFORE, WILL OVERTURN A
LEGISLATIVE DETERMINATION OF A FACTUAL QUESTION ONLY IF THE
LEGISLATURE'S FINDING IS SO CLEARLY WRONG THAT IT MAY BE CHARACTERIZED
AS "ARBITRARY," "IRRATIONAL," OR "UNREASONABLE."  COMMUNIST PARTY V.
CONTROL BOARD, 376 U.S. 1, 94-95 (1961); UNITED STATES V. CAROLENE
PRODUCTS CO., 304 U.S. 144, 152-154 (1938); METROPOLITAN CAS. INS. CO.
V. BROWNELL, 294 U.S.,AT 583-584. 

LIMITATIONS STEMMING FROM THE NATURE OF THE JUDICIAL PROCESS,
HOWEVER, HAVE NO APPLICATION TO CONGRESS.  SECTION 5 OF THE FOURTEENTH
AMENDMENT PROVIDES THAT "THE CONGRESS SHALL HAVE POWER TO ENFORCE, BY
APPROPRIATE LEGISLATION, THE PROVISION OF THIS ARTICLE."  SHOULD
CONGRESS, PURSUANT TO THAT POWER, UNDERTAKE AN INVESTIGATION IN ORDER
TO DETERMINE WHETHER THE FACTUAL BASIS NECESSARY TO SUPPORT A STATE
LEGISLATIVE DISCRIMINATION ACTUALLY EXISTS, IT NEED NOT STOP ONCE IT
DETERMINES THAT SOME REASONABLE MEN COULD BELIEVE THE FACTUAL BASIS
EXISTS.  SECTION 5 EMPOWERS CONGRESS TO MAKE ITS OWN DETERMINATION ON
THE MATTER.  SEE KATZENBACH V. MORGAN, 384 U.S. 641, 654-656 (1966). 
IT SHOULD HARDLY BE NECESSARY TO ADD THAT IF THE ASSERTED FACTUAL BASIS
NECESSARY TO SUPPORT A GIVEN STATE DISCRIMINATION DOES NOT EXIST, SEC.
5 OF THE FOURTEENTH AMENDMENT VESTS CONGRESS WITH POWER TO REMOVE THE
DISCRIMINATION BY APPROPRIATE MEANS.  ID., AT 656-657; FAY V. NEW YORK,
332 U.S.,AT 282-283; EX PARTE VIRGINIA, 100 U.S. 339, 347-348 (1880). 

THE SCOPE OF OUR REVIEW IN SUCH MATTERS HAS BEEN ESTABLISHED BY A
LONG LINE OF CONSISTENT DECISIONS.  "IT IS NOT FOR THE COURTS TO RE
EXAMINE THE VALIDITY OF THESE LEGISLATIVE FINDINGS AND REJECT THEM." 
COMMUNIST PARTY V. CONTROL BOARD, 367 U.S.,AT 94.  "(WHERE WE FIND THAT
THE LEGISLATORS, IN LIGHT OF THE FACTS AND TESTIMONY BEFORE THEM, HAVE
A RATIONAL BASIS FOR FINDING A CHOSEN REGULATORY SCHEME NECESSARY . . .
OUR INVESTIGATION IS AT AN END."  KATZENBACH V. MCCLUNG, 379 U.S. 294,
303-304 (1964); KATZENBACH V. MORGAN, 384 U.S.,AT 653; SEE GALVAN V.
PRESS, 347 U.S. 522, 529 (1954).  /31/ 

THIS SCHEME IS CONSISTENT WITH OUR PRIOR DECISIONS IN RELATED
AREAS.  THE CORE OF DISPUTE OVER THE CONSTITUTIONALITY OF TITLE III OF
THE 1970 AMENDMENTS IS A CONFLICT BETWEEN STATE AND FEDERAL LEGISLATIVE
DETERMINATIONS OF THE FACTUAL ISSUES UPON WHICH DEPENDS DECISION OF A
FEDERAL CONSTITUTIONAL QUESTION-- THE LEGITIMACY, UNDER THE EQUAL
PROTECTION CLAUSE, OF STATE DISCRIMINATION AGAINST PERSONS BETWEEN THE
AGES OF 18 AND 21.  OUR CASES HAVE REPEATEDLY EMPHASIZED THAT, WHEN
STATE AND FEDERAL CLAIMS COME INTO CONFLICT, THE PRIMACY OF FEDERAL
POWER REQUIRES THAT THE FEDERAL FINDING OF FACT CONTROL.  SEE ENGLAND
V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411, 415-417
(1964); TOWNSEND V. SAIN, 372 U.S. 293, 311-312 (1963); TARBLE'S CASE,
13 WALL.  397, 406-407 (1872); CF. UNITED STATES V. DARBY, 312 U.S.
100, 119 (1941).  THE SUPREMACY CLAUSE REQUIRES AN IDENTICAL RESULT
WHEN THE CONFLICT IS ONE OF LEGISLATIVE, NOT JUDICIAL FINDINGS. 

FINALLY, IT IS NO ANSWER TO SAY THAT TITLE III INTRUDES UPON A
DOMAIN RESERVED TO THE STATES-- THE POWER TO SET QUALIFICATIONS FOR
VOTING.  IT IS NO LONGER OPEN TO QUESTION THAT THE FOURTEENTH AMENDMENT
APPLIES TO THIS, AS TO ANY OTHER, EXERCISE OF STATE POWER.  KRAMER V.
UNION SCHOOL DISTRICT, SUPRA, AND CASES CITED.  AS WE SAID IN ANSWER TO
A SIMILAR CONTENTION ALMOST A CENTURY AGO, "THE CONSTITUTION NOW
EXPRESSLY GIVES AUTHORITY FOR CONGRESSIONAL INTERFERENCE AND COMPULSION
IN THE CASES EMBRACED WITHIN THE FOURTEENTH AMENDMENT.  IT IS BUT A
LIMITED AUTHORITY, TRUE, EXTENDING ONLY TO A SINGLE CLASS OF CASES; BUT
WITHIN ITS LIMITS IT IS COMPLETE."  EX PARTE VIRGINIA, 100 U.S.,AT 347
348. 

        C 

OUR BROTHER HARLAN HAS SET OUT IN SOME DETAIL THE HISTORICAL
EVIDENCE THAT PERSUADES HIM THAT THE FRAMERS OF THE FOURTEENTH
AMENDMENT DID NOT BELIEVE THAT THE EQUAL PROTECTION CLAUSE, EITHER
THROUGH JUDICIAL ACTION OR THROUGH CONGRESSIONAL ENFORCEMENT UNDER SEC.
5 OF THE AMENDMENT, COULD OPERATE TO ENFRANCHISE NEGROES IN STATES THAT
DENIED THEM THE VOTE.  ANTE, AT 154-200.  FROM THIS HE HAS CONCLUDED
"THAT THE FOURTEENTH AMENDMENT WAS NEVER INTENDED TO RESTRICT THE
AUTHORITY OF THE STATES TO ALLOCATE THEIR POLITICAL POWER AS THEY SEE
FIT AND THEREFORE THAT IT DOES NOT AUTHORIZE CONGRESS TO SET VOTER
QUALIFICATIONS, IN EITHER STATE OR FEDERAL ELECTIONS."  ANTE, AT 154. 
THIS CONCLUSION, IF ACCEPTED, WOULD SEEM TO REQUIRE AS A COROLLARY THAT
ALTHOUGH STATES MAY NOT, UNDER THE FIFTEENTH AMENDMENT, DISCRIMINATE
AGAINST NEGRO VOTERS, THEY ARE FREE SO FAR AS THE FEDERAL CONSTITUTION
IS CONCERNED TO DISCRIMINATE AGAINST NEGRO OR UNPOPULAR CANDIDATES IN
ANY WAY THEY DESIRE.  NOT SURPRISINGLY, OUR BROTHER HARLAN'S THESIS IS
EXPLICITLY DISAVOWED BY ALL THE STATES PARTY TO THE PRESENT LITIGATION,
/32/  AND HAS BEEN PRESENTED TO US ONLY IN THE BRIEFS AMICI CURIAE OF
VIRGINIA, AND, MISSISSIPPI.  /33/  WE COULD NOT ACCEPT THIS THESIS EVEN
IF IT WERE SUPPORTED BY HISTORICAL EVIDENCE FAR STRONGER THAN ANYTHING
ADDUCED HERE TODAY.  BUT IN OUR VIEW, OUR BROTHER HARLAN'S HISTORICAL
ANALYSIS IS FLAWED BY HIS ASCRIPTION OF 20TH-CENTURY MEANINGS TO THE
WORDS OF 19TH-CENTURY LEGISLATORS.  IN CONSEQUENCE, HIS ANALYSIS
IMPOSES AN ARTIFICIAL SIMPLICITY UPON A COMPLEX ERA, AND PRESENTS, AS
UNIVERSAL, BELIEFS THAT WERE HELD BY MERELY ONE OF SEVERAL GROUPS
COMPETING FOR POLITICAL POWER.  WE CAN ACCEPT NEITHER HIS JUDICIAL
CONCLUSION NOR HIS HISTORICAL PREMISE THAT THE ORIGINAL UNDERSTANDING
OF THE FOURTEENTH AMENDMENT LEFT IT WITHIN THE POWER OF THE STATES TO
DENY THE VOTE TO NEGRO CITIZENS. 

IT IS CLEAR THAT THE LANGUAGE OF THE FOURTEENTH AMENDMENT, WHICH
FORBIDS A STATE TO "DENY TO ANY PERSON WITHIN ITS JURISDICTION THE
EQUAL PROTECTION OF THE LAWS," APPLIES ON ITS FACE TO ALL ASSERTIONS OF
STATE POWER, HOWEVER MADE.  MORE THAN 40 YEARS AGO, THIS COURT FACED
FOR THE FIRST TIME THE QUESTION WHETHER A STATE COULD DENY NEGROES THE
RIGHT TO VOTE IN PRIMARY ELECTIONS.  WRITING FOR A UNANIMOUS COURT, MR.
JUSTICE HOLMES OBSERVED TARTLY THAT "WE FIND IT UNNECESSARY TO CONSIDER
THE FIFTEENTH AMENDMENT, BECAUSE IT SEEMS TO US HARD TO IMAGINE A MORE
DIRECT AND OBVIOUS INFRINGEMENT OF THE FOURTEENTH."  NIXON V. HERNDON,
273 U.S. 536, 540-541 (1927); SEE NIXON V. CONDON, 286 U.S. 73, 83, 87
89 (1932) (CARDOZO, J.); ANDERSON V. MARTIN, 375 U.S. 399 (1964); CF.
RAYMOND V. CHICAGO UNION TRACTION CO., 207 U.S. 20, 35-36 (1907).  IF
THE BROAD LANGUAGE OF THE EQUAL PROTECTION CLAUSE WERE TO BE READ AS
NEVERTHELESS ALLOWING THE STATES TO DENY EQUAL POLITICAL RIGHTS TO ANY
CITIZENS THEY SEE FIT TO EXCLUDE FROM THE POLITICAL PROCESS, FAR MORE
IS INVOLVED THAN MERELY SHIFTING THE DOCTRINAL BASIS OF SUCH CASES AS
NIXON V. HERNDON FROM THE FOURTEENTH TO THE FIFTEENTH AMENDMENT.  FOR
THE FIFTEENTH AMENDMENT APPLIES ONLY TO VOTING, NOT TO THE HOLDING OF
PUBLIC OFFICE; IN CONSEQUENCE, OUR BROTHER HARLAN'S VIEW WOULD APPEAR
TO LEAVE THE STATES FREE TO ENCOURAGE CITIZENS TO CAST THEIR VOTES
SOLELY ON THE BASIS OF RACE (A PRACTICE FOUND TO VIOLATE THE FOURTEENTH
AMENDMENT IN ANDERSON V. MARTIN, SUPRA), OR EVEN PRESUMABLY TO DENY
NEGRO CITIZENS THE RIGHT TO RUN FOR OFFICE AT ALL.  /34/ WE CANNOT
BELIEVE THAT THE EQUAL PROTECTION CLAUSE WOULD PERMIT SUCH
DISCRIMINATION. 

IN ANY EVENT, IT SEEMS TO US, THE HISTORICAL RECORD WILL NOT BEAR
THE WEIGHT OUR BROTHER HARLAN HAS PLACED UPON IT.  HIS EXAMINATION OF
THE HISTORICAL BACKGROUND OF THE FOURTEENTH AMENDMENT LEADS HIM TO
CONCLUDE THAT IT IS "CLEAR BEYOND ANY REASONABLE DOUBT THAT NO PART OF
THE LEGISLATION NOW UNDER REVIEW CAN BE UPHELD AS A LEGITIMATE EXERCISE
OF CONGRESSIONAL POWER UNDER THAT AMENDMENT," ANTE, AT 155, BECAUSE THE
AMENDMENT WAS NOT INTENDED "TO RESTRICT THE AUTHORITY OF THE STATES TO
ALLOCATE THEIR POLITICAL POWER AS THEY SEE FIT."  ANTE, AT 154.  OUR
OWN READING OF THE HISTORICAL BACKGROUND, ON THE OTHER HAND, RESULTS IN
A SOMEWHAT IMPERFECT PICTURE OF AN ERA OF CONSTITUTIONAL CONFUSION,
CONFUSION THAT THE AMENDMENT DID LITTLE TO RESOLVE.  AS THE LEADING
CONSTITUTIONAL LAW WAS CHARACTERIZED DURING THE WAR YEARS BY "A
NOTICEABLE LACK OF LEGAL PRECISION" AND BY "A TENDENCY TOWARD
IRREGULARITY . . . IN LEGISLATION, AND IN LEGAL INTERPRETATION."  J.
RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 515-516 (REV. ED.
1951).  NOR WOULD THE POSTWAR PERIOD OF RECONSTRUCTION BE SUBSTANTIALLY
DIFFERENT. 

FOR SEVERAL DECADES PRIOR TO THE CIVIL WAR, CONSTITUTIONAL
INTERPRETATION HAD BEEN A PRESSING CONCERN OF THE NATION'S LEADING
STATESMEN AND LAWYERS, WHOSE ATTENTION FOCUSED ESPECIALLY ON THE NATURE
OF THE RELATIONSHIP OF THE STATES TO THE FEDERAL GOVERNMENT.  THE ONSET
OF THE CIVIL WAR SERVED ONLY TO RAISE NEW PROBLEMS UPON WHICH THE
ORIGINAL CONSTITUTION OFFERED, AT BEST, ONLY PERIPHERAL GUIDANCE.  THE
GREATEST PROBLEM OF ALL, PERHAPS, WAS THE CHARACTER OF THE CIVIL
CONFLICT-- WHETHER IT WAS TO BE TREATED AS A REBELLION, AS A WAR WITH A
BELLIGERENT STATE, OR AS SOME COMBINATION OF THE TWO.  ANOTHER ISSUE
CONCERNED THE SCOPE OF FEDERAL POWER TO EMANCIPATE THE SLAVES; EVEN
PRESIDENT LINCOLN DOUBTED WHETHER HIS EMANCIPATION PROCLAMATION WOULD
BE OPERATIVE WHEN THE WAR HAD ENDED AND HIS SPECIAL WAR POWERS HAD
EXPIRED.  THIS PARTICULAR ISSUE WAS RESOLVED BY THE THIRTEENTH
AMENDMENT, BUT THAT AMENDMENT ONLY RAISED NEW ISSUES, FOR SOME MEN
DOUBTED THE VALIDITY OF EVEN A CONSTITUTIONAL CHANGE UPON SUCH A
FUNDAMENTAL MATTER AS SLAVERY, PARTICULARLY WHILE THE STATUS OF THE
ELEVEN CONFEDERATE STATES REMAINED UNSETTLED.  SEE ID., AT 12-24, 59
73, 342-404.     THE END OF THE WAR DID NOT BRING AN END TO DIFFICULT
CONSTITUTIONAL QUESTIONS.  TWO PERPLEXING PROBLEMS REMAINED.  THE ONE
WAS THE RELATION OF THE FORMER CONFEDERATE STATES TO THE FEDERAL
GOVERNMENT; THE OTHER WAS THE RELATION OF THE FORMER SLAVES TO THE
WHITE CITIZENS OF THE NATION.  BOTH WERE INTIMATELY RELATED TO THE
POLITICS OF THE DAY, AN UNDERSTANDING OF WHICH IS ESSENTIAL SINCE THE
FOURTEENTH AMENDMENT WAS PRESENTED TO THE NATION AS THE REPUBLICAN
PARTY'S SOLUTION FOR THESE PROBLEMS.  SEE J. JAMES, THE FRAMING OF THE
FOURTEENTH AMENDMENT 169-173 (1956) (HEREAFTER JAMES). 

THE STARTING POINT MUST BE THE KEY FACT THAT, AS OF 1860, THE
REPUBLICANS WERE VERY MUCH THE NATION'S MINORITY PARTY.  LINCOLN HAD
WON THE PRESIDENCY THAT YEAR WITH LESS THAN 40% OF THE POPULAR VOTE,
WHILE THE REPUBLICANS HAD SECURED CONTROL OF CONGRESS ONLY WHEN
SOUTHERN DEMOCRATS HAD LEFT WASHINGTON FOLLOWING THE SECESSION OF THEIR
STATES.  THE COMPROMISE IN THE ORIGINAL CONSTITUTION, BY WHICH ONLY
THREE-FIFTHS OF THE SLAVES IN SOUTHERN STATES WERE COMPUTED IN
DETERMINING REPRESENTATION IN THE HOUSE OF REPRESENTATIVES AND VOTES IN
THE ELECTORAL COLLEGE ALSO WAS A MATTER OF CRITICAL IMPORTANCE IN 1865;
WITH SLAVERY ABOLISHED, SOUTHERN AND HENCE DEMOCRATIC POWER IN THE
HOUSE AND IN THE ELECTORAL COLLEGE WOULD INCREASE.  THE REPUBLICANS HAD
CALCULATED THIS MATTER RATHER CAREFULLY; AS THE CHICAGO TRIBUNE HAD
DEMONSTRATED AS EARLY AS THE SUMMER OF 1865, THE INCREASED SOUTHERN
DELEGATION WOULD NEED ONLY 29 READILY OBTAINABLE DEMOCRATIC VOTES FROM
THE NORTH IN ORDER TO DOMINATE THE HOUSE.  SEE JAMES 21-23.  BUT
REPUBLICANS HAD NO INTENTION OF PERMITTING SUCH A DEMOCRATIC RESURGENCE
TO OCCUR; IN THEIR VIEW, AS ONE REPUBLICAN SENATOR OBSERVED,
REPUBLICANS WOULD BE "FAITHLESS" TO THEIR "TRUST," IF THEY ALLOWED "MEN
WHO HAVE THUS PROVEN THEMSELVES FAITHLESS" TO RECOVER "THE VERY
POLITICAL POWER WHICH THEY HAVE HITHERTO USED FOR THE DESTRUCTION OF
THIS GOVERNMENT."  CONG. GLOBE, 39TH CONG., 1ST SESS. (HEREAFTER GLOBE)
2918 (1866) REMARKS OF SEN. WILLEY).  WHETHER ONE LOOKS UPON SUCH
SENTIMENTS AS A GRASP FOR PARTISAN POLITICAL POWER OR AS AN IDEALISTIC
DETERMINATION THAT THE GAINS OF THE CIVIL WAR NOT BE SURRENDERED, THE
CENTRAL FACT REMAINS THAT REPUBLICANS FOUND IT ESSENTIAL TO BAR OR AT
LEAST TO DELAY THE RETURN OF ALL-WHITE SOUTHERN DELEGATIONS TO
CONGRESS. 

TEMPORARILY, THEY PROPOSED TO DO SO BY REFUSING TO SEAT CONGRESSMEN
FROM THE SECEDED STATES.  THEY USUALLY JUSTIFIED THEIR REFUSAL ON
CONSTITUTIONAL GROUNDS, PRESENTING A VARIETY OF THEORIES AS TO HOW THE
FORMER CONFEDERATE STATES HAD FORFEITED THEIR RIGHTS BY SECESSION.  SEE
GENERALLY E. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION 93-119
(1960).  BUT EXCLUSION OF SOUTHERN REPRESENTATIVES COULD NOT BE A
PERMANENT SOLUTION; A BETTER SOLUTION SEEMED TO BE TO ELECT AT LEAST
SOME REPUBLICAN REPRESENTATIVES FROM THE SOUTH BY ENFRANCISING THE ONLY
CLASS THAT COULD BE EXPECTED TO VOTE REPUBLICAN IN LARGE NUMBERS-- THE
FREEDMEN. 

ACCORDING TO THE CENSUS OF 1860, NEGROES HAD CONSTITUTBED SOME
4,200,000 OF THE TOTAL POPULATION OF 12,200,000 IN THE 15 SLAVE
STATES.  IN TWO STATES-- MISSISSIPPI AND SOUTH CAROLINA-- NEGROES WERE
A SUBSTANTIAL MAJORITY OF THE POPULATION, WHILE IN SEVERAL OTHER STATES
THE POPULATION WAS AT LEAST 40% NEGRO.  THUS, NEGRO SUFFRAGE WOULD
PROBABLY RESULT IN A NUMBER OF NEGRO AND PRESUMABLY REPUBLICAN
REPRESENTATIVES FROM THE SOUTH.  THE DIFFICULTY WAS WITH THE MEANS OF
BRINGING NEGRO SUFFRAGE ABOUT.  SOME, INCLUDING CHIEF JUSTICE CHASE,
LOOKED BACK TOWARD THE EMANCIPATION PROCLAMATION AND CONTENDED THAT
NEGRO SUFFRAGE COULD BE ACHIEVED, AT LEAST IN THE SOUTH, BY MEANS OF A
PRESIDENTIAL PROCLAMATION.  SEE JAMES 5-7; 1 W. FLEMING, DOCUMENTARY
HISTORY OF RECONSTRUCTION 142 (1906).  OTHERS THOUGHT CONGRESSSIONAL
LEGISLATION THE APPROPRIATE VEHICLE FOR GRANTING THE SUFFRAGE, SEE
JAMES 13, 52-53; VAN ALSTYNE, THE FOURTEENTH AMENDMENT, THE "RIGHT" TO
VOTE, AND THE UNDERSTANDING OF THE THIRTY-NINTH CONGRESS 1965 SUPREME
COURT REVIEW 33, 49-51, WHILE STILL OTHERS ARGUED FOR A CONSTITUTIONAL
AMENDMENT.  SEE CINCINNATI DAILY COMMERCIAL, SEPT. 19, 1865, IN JAMES
11-12 (REPORTING SPEECH OF CONG. BINGHAM).  DISAGREEMENT OVER MEANS,
HOWEVER, WAS BUT A MINOR OBSTACLE IN THE PATH OR EQUAL SUFFRAGE; RACIAL
PREJUDICE IN THE NORTH WAS A FAR MORE SIGNIFICANT ONE.  ONLY FIVE NEW
ENGLAND STATES AND NEW YORK PERMITTED ANY NEGROES TO VOTE AS OF 1866,
SEE VAN ALSTYNE, SUPRA, AT 70, AND EXTENSION OF THE SUFFRAGE WAS
REJECTED BY VOTERS IN 17 OF 19 POPULAR REFERENDA HELD ON THE SUBJECT
BETWEEN 1865 AND 1868.  MOREOVER, REPUBLICANS SUFFERED SOME SEVERE
ELECTION SETBACKS IN 1867 ON ACCOUNT OF THEIR SUPPORT OF NEGRO
SUFFRAGE.  SEE W. GILLETTE, THE RIGHT TO VOTE 25-27, 32-38 (1969). 

MEETING IN THE WINTER AND SPRING OF 1866 AND FACING ELECTIONS IN THE
FALL OF THE SAME YEAR, THE REPUBLICANS IN CONGRESS THUS FACED A
DIFFICULT DILEMMA:  THEY DESPERATELY NEEDED NEGRO SUFFRAGE IN ORDER TO
PREVENT TOTAL DEMOCRATIC RESURGENCE IN THE SOUTH, YET THEY FEARED THAT
BY PRESSING FOR SUFFRAGE THEY MIGHT CREATE A REACTION AMONG NORTHERN
WHITE VOTERS THAT WOULD LEAD TO MASSIVE DEMOCRATIC ELECTORAL GAINS IN
THE NORTH.  THEIR TASK WAS THUS TO FRAME A POLICY THAT WOULD PREVENT
TOTAL SOUTHERN DEMOCRATIC RESURGENCE AND THAT SIMULTANEOUSLY WOULD
SERVE AS A PLATFORM UPON WHICH REPUBLICANS COULD GO BEFORE THEIR
NORTHERN CONSTITUTENTS IN THE FALL.  WHAT ULTIMATELY EMERGED AS THE
POLICY AND POLITICAL PLATFORM OF THE REPUBLICAN PARTY WAS THE
FOURTEENTH AMENDMENT.  /35/ 

AS FINALLY ADOPTED, RELEVANT PORTIONS OF THE FOURTEENTH AMENDMENT
READ AS FOLLOWS: 

     SEC. 1.  "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." 

     SEC. 2.  "REPRESENTATIVES SHALL BE APPORTIONED AMONG THE

  SEVERAL STATES ACCORDING TO THEIR RESPECTIVE NUMBERS.  . . . BUT

  WHEN THE RIGHT TO VOTE AT ANY ELECTION . . . IS DENIED TO ANY OF

  THE MALE INHABITANTS OF SUCH STATE, BEING TWENTY-ONE YEARS OF

  AGE, AND CITIZENS OF THE UNITED STATES, OR IN ANY WAY ABRIDGED,

  EXCEPT FOR PARTICIPATION IN REBELLION, OR OTHER CRIME, THE BASIS

  OF REPRESENTATION THEREIN SHALL BE REDUCED IN THE PROPORTION

  WHICH THE NUMBER OF SUCH MALE CITIZENS SHALL BEAR TO THE WHOLE

  NUMBER OF MALE CITIZENS TWENTY-ONE YEARS OF AGE IN SUCH STATE." 

     SEC. 5.  "THE CONGRESS SHALL HAVE POWER TO ENFORCE, BY

  APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS ARTICLE." 

THE KEY PROVISION ON THE SUFFRAGE QUESTION WAS, OF COURSE, SEC. 2,
WHICH WAS TO HAVE THE EFFECT OF REDUCING THE REPRESENTATION OF ANY
STATE WHICH DID NOT PERMIT NEGROES TO VOTE.  SECTION 1 ALSO BEGAN,
HOWEVER, AS A PROVISION AIMED AT SECURING EQUALITY OF "POLITICAL RIGHTS
AND PRIVILEGES"-- A FACT HARDLY SURPRISING IN VIEW OF REPUBLICAN
CONCERN WITH THE QUESTION.  IN THEIR EARLIEST VERSIONS IN THE JOINT
CONGRESSIONAL COMMITTEE ON RECONSTRUCTION, WHICH FRAMED THE FOURTEENTH
AMENDMENT, SECS. 1 AND 2 READ AS FOLLOWS: 

     "(SEC. 1) CONGRESS SHALL HAVE POWER TO MAKE ALL LAWS NECESSARY

 AND PROPER TO SECURE TO ALL CITIZENS OF THE UNITED STATES, IN

  EVERY STATE, THE SAME POLITICAL RIGHTS AND PRIVILEGES; AND TO ALL

  PERSONS IN EVERY STATE EQUAL PROTECTION IN THE ENJOYMENT OF LIFE,

  LIBERTY, AND PROPERTY."  B. KENDRICK, THE JOURNAL OF THE JOINT

  COMMITTEE OF FIFTEEN ON RECONSTRUCTION 51 (1914 (HEREAFTER

  KENDRICK). 

     "(SEC. 2.)  REPRESENTATIVES AND DIRECT TAXES SHALL BE

  APPORTIONED AMONG THE SEVERAL STATES, WHICH MAY BE INCLUDED

WITHIN THIS UNION, ACCORDING TO THEIR RESPECTIVE NUMBERS OF

  PERSONS, DEDUCTING THEREFROM ALL OF ANY RACE OR COLOR, WHOSE

  MEMBERS OR ANY OF THEM ARE DENIED ANY OF THE CIVIL OR POLITICAL

  RIGHTS OR PRIVILEGES."  ID., AT 43. 

THE QUESTION THAT MUST NOW BE PURSUED IS WHETHER SEC. 1 OF THE
AMENDMENT EVER LOST ITS ORIGINAL CONNECTION WITH THE SUFFRAGE
QUESTION. 

IT BECAME EVIDENT AT AN EARLY DATE THAT THE JOINT COMMITTEE DID NOT
WISH TO MAKE CONGRESSIONAL POWER OVER THE SUFFRAGE MORE EXPLICIT THAN
DID THE LANGUAGE OF THE ORIGINAL VERSION OF THE FUTURE SEC. 1.  SIX
DAYS AFTER THAT SECTION HAD BEEN PROPOSED BY A SUBCOMMITTEE, THE FULL
COMMITTEE REFUSED TO ADOPT AN AMENDMENT OFFERED BY SENATOR HOWARD TO
MAKE THE SECTION REFER EXPRESSLY TO "POLITICAL AND ELECTIVE RIGHTS AND
PRIVILEGES," ID., AT 55, AND REFUSED AS WELL TO SUBSTITUTE FOR THE
LANGUAGE:

   "CONGRESS SHALL HAVE POWER TO MAKE ALL LAWS NECESSARY AND

  PROPER TO SECURE TO ALL CITIZENS OF THE UNITED STATES IN EACH

  STATE THE SAME POLITICAL RIGHTS AND PRIVILEGES; AND TO ALL

  PERSONS IN EVERY STATE EQUAL PROTECTION IN THE ENJOYMENT OF LIFE,

  LIBERTY AND PROPERTY." 

THE FOLLOWING LANGUAGE OFFERED BY CONGRESSMAN BOUTWELL: 

     "CONGRESS SHALL HAVE POWER TO ABOLISH ANY DISTINCTION IN THE

  EXERCISE OF THE ELECTIVE FRANCHISE IN ANY STATE, WHICH BY LAW,

  REGULATION OR USAGE MAY EXIST THEREIN."  ID., AT 54-55. 

THE COMMITTEE DID AGREE, HOWEVER, TO RETURN THE PROPOSAL TO A SPECIAL
SUBCOMMITTEE, CHAIRED BY CONGRESSMAN JOHN A. BINAHAM, WHICH AT THE NEXT
MEETING OF THE FULL COMMITTEE REPORTED BACK THE FOLLOWING LANGUAGE: 

     "CONGRESS SHALL HAVE POWER TO MAKE ALL LAWS WHICH SHALL BE

  NECESSARY AND PROPER TO SECURE ALL PERSONS IN EVERY STATE FULL

  PROTECTION IN THE ENJOYMENT OF LIFE, LIBERTY AND PROPERTY; AND TO

  ALL CITIZENS OF THE UNITED STATES IN ANY STATE THE SAME

  IMMUNITIES AND ALSO EQUAL POLITICAL RIGHTS AND PRIVILEGES."  ID.,

  AT 56. 

THIS LANGUAGE, IT SEEMS CLEAR, DID NOT CHANGE THE MEANING OF THE
PROPOSED SEVERAL DAYS LATER BY BINGHAM, ARGUABLY DID.  BINGHAM MOVED
THE FOLLOWING SUBSTITUTE: 

     "THE CONGRESS SHALL HAVE POWER TO MAKE ALL LAWS WHICH SHALL BE

  NECESSARY AND PROPER TO SECURE TO THE CITIZENS OF EACH STATE ALL

  PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES (ART.

  4, SEC. 2); AND TO ALL PERSONS IN THE SEVERAL STATES EQUAL

  PROTECTION IN THE RIGHTS OF LIFE, LIBERTY AND PROPERTY (5TH

  AMENDMENT)."  ID., AT 61. 

THIS SUBSTITUTE WAS ACCEPTED BY A COMMITTEE VOTE OF 7-6. 

NO RECORD OF THE COMMITTEE'S DEBATES HAS BEEN PRESERVED, AND THUS
ONE CAN ONLY GUESS WHETHER BINGHAM'S SUBSTITUTE WAS INTENDED TO CHANGE
THE MEANING OF THE ORIGINAL PROPOSAL.  THE BREAKDOWN OF THE COMMITTEE
VOTE SUGGESTS, HOWEVER, THAT NO CHANGE IN MEANING WAS INTENDED.  THE
SUBSTITUTE WAS SUPPORTED BY MEN OF ALL POLITICAL VIEWS, RANGING FROM
SENATOR HOWARD AND CONGRESSMAN BOUTWELL, RADICALS WHO HAD EARLIER
SOUGHT TO MAKE THE SECTION'S COVERAGE OF SUFFRAGE EXPLICIT, TO
CONGRESSMAN ROGERS, A DEMOCRAT.  SIMILARLY, AMONG THE SIX VOTING
AGAINST THE SUBSTITUTE WERE A RADICAL, STEVENS; A MODERATE, FESSENDEN;
AND A DEMOCRAT, GRIDER.  ID., AT 61.  THUS, WHILE ONE MIGHT CONTINUE TO
ARGUE THAT BINGHAM MEANS HIS SUBSTITUTE TO DO AWAY WITH CONGRESSIONAL
POWER TO LEGISLATE FOR THE PRESERVATION OF EQUAL RIGHTS OF SUFFRAGE,
ONE CAN, WITH AT LEAST EQUAL PLAUSIBILITY, CONTEND THAT BINGHAM SOUGHT
TO DO NO MORE THAN SUBSTITUTE FOR HIS EARLIER SPECIFIC LANGUAGE MORE
GENERAL LANGUAGE WHICH HAD ALREADY APPEARED ELSEWHERE IN THE
CONSTITUTION.  /36/ 

BINGHAM'S PROPOSED AMENDMENT TO THE CONSTITUTION, AS MODIFIED, WAS
NEXT SUBMITTED TO THE HOUSE OF REPRESENTATIVES, WHERE REPUBLICANS
JOINED DEMOCRATS IN ATTACKING IT.  REPUBLICAN REPRESENTATIVE HALE OF
NEW YORK, FOR EXAMPLE, THOUGHT THE AMENDMENT "IN EFFECT A PROVISION
UNDER WHICH ALL STATE LEGISLATION, IN ITS CODES OF CIVIL AND CRIMINAL
JURISPRUDENCE AND PROCEDURE, AFFECTING THE INDIVIDUAL CITIZEN, MAY BE
OVERRIDDEN," GLOBE 1063, WHILE REPRESENTATIVE DAVIS, ALSO A NEW YORK
REPUBLICAN, THOUGHT IT WOULD GIVE CONGRESS POWER TO ESTABLISH "PERFECT
POLITICAL EQUALITY BETWEEN THE COLORED AND THE WHITE RACE OF THE
SOUTH."  ID., AT 1085.  MEANWHILE, THE NEW YORK TIMES, EDITED BY
CONSERVATIVE REPUBLICAN CONGRESSMAN HENRY J. RAYMOND, WONDERED IF THE
PROPOSED AMENDMENT WAS "SIMPLY A PRELIMINARY TO THE ENACTMENT OF NEGRO
SUFFRAGE."  FEB. 19, 1866.  EVEN THE AMENDMENT'S SUPPORTERS RECOGNIZED
THAT IT WOULD CONFER EXTENSIVE POWER UPON THE FEDERAL GOVERNMENT;
REPRESENTATIVE KELLEY, A PENNSYLVANIA RADICAL, WHO SUPPORTED THE
AMENDMENT, CONCLUDED, AFTER A LENGTHY DISCUSSION OF THE RIGHT OF
SUFFRAGE, THAT "THE PROPOSED AMENDMENT . . . (WAS) INTENDED TO SECURE
IT."  GLOBE 1063.  ITS PROPONENTS, HOWEVER, COULD NOT SECURE THE
NECESSARY SUPPORT FOR THE AMENDMENT IN THE HOUSE AND THUS WERE
COMPELLED TO POSTPONE THE MATTER UNTIL A LATER DATE, WHEN THEY FAILED
TO BRING IT AGAIN TO THE FLOOR.  KENDRICK 215. 

MEANWHILE, THE JOINT COMMITTEE HAD RETURNED TO WORK AND HAD BEGUN TO
CONSIDER THE DIRECT ANTECEDENT OF THE FOURTEENTH AMENDMENT, A PROPOSAL
BY ROBERT DALE OWEN WHICH REPRESENTATIVE STEVENS HAD PLACED BEFORE THE
COMMITTEE.  ITS RELEVANT PROVISIONS WERE AS FOLLOWS: 

     "SECTION 1.  NO DISCRIMINATION SHALL BE MADE BY ANY STATE, NOR

  BY THE UNITED STATES, AS TO THE CIVIL RIGHTS OF PERSONS OF RACE,

  COLOR, OR PREVIOUS CONDITION OF SERVITUDE. 

      "SEC. 2.  FROM AND AFTER THE FOURTH DAY OF JULY, IN THE YEAR

  ONE THOUSAND EIGHT HUNDRED AND SEVENTY-SIX, NO DISCRIMINATION

  SHALL BE MADE BY ANY STATE, NOR BY THE UNITED STATES, AS TO THE

  ENJOYMENT BY CLASSES OF PERSONS THE RIGHT OF SUFFRAGE, BECAUSE OF

  RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE. 

     "SEC. 3.  UNTIL THE FOURTH DAY OF JULY, ONE THOUSAND EIGHT

  HUNDRED AND SEVENTY-SIX, NO CLASS OF PERSONS, AS TO THE RIGHT OF

  ANY OF WHOM TO SUFFRAGE DISCRIMINATION SHALL BE MADE BY ANY

  STATE, BECAUSE OF RACE, COLOR, OR PREVIOUS CONDITION OF

  SERVITUDE, SHALL BE INCLUDED IN THE BASIS OF REPRESENTATION. 

.          .          .          . 

     "SEC. 5.  CONGRESS SHALL HAVE POWER TO ENFORCE BY APPROPRIATE

  LEGISLATION, THE PROVISIONS OF THIS ARTICLE."  ID., AT 83-84. 

CONGRESSMAN BINGHAM HAD NOT, HOWEVER, GIVEN UP ON HIS OWN FAVORITE
PROPOSAL, AND HE IMMEDIATELY MOVED TO ADD THE FOLLOWING NEW SECTION TO
THE AMENDMENT: 

     "SEC. 5.  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."  ID.,

AT 87. 

HIS MOTION WAS ADOPTED ON A 10-TO-2 PARTY-LINE VOTE, BUT ITS
ADOPTION WAS ONLY THE BEGINNING OF SOME INTRICATE AND INEXPLICABLE
MANEUVERING.  FOUR DAYS LATER, SENATOR WILLIAMS, AN OREGON RADICAL,
MOVED TO DELETE BINGHAM'S SECTION, AND HIS MOTION WAS CARRIED BY A VOTE
OF 7 TO 5, WITH RADICALS HOWARD AND BOUTWELL AND DEMOCRATS GRIDER AND
JOHNSON VOTING FOR THE MOTION AND STEVENS, BINGHAM, AND DEMOCRAT ROGERS
VOTING AGAINST.  BINGHAM THEN MOVED TO SUBMIT HIS PROPOSAL AS A
SEPARATE AMENDMENT, BUT HE WAS SUPPORTED BY ONLY THE THREE DEMOCRATS ON
THE COMMITTEE.  THE COMMITTEE THEN AGREED TO SUBMIT THE OWEN PROPOSAL
TO CONGRESS WITH ONLY SLIGHT MODIFICATIONS, BUT POSTPONED THE
SUBMISSION UNTIL AFTER ONE FURTHER MEETING TO BE HELD THREE DAYS
HENCE.  ID., AT 98-100. 

AT THIS MEETING, THE PROPOSED FOURTEENTH AMENDMENT WAS SUBSTANTIALLY
REWRITTEN.  FIRST, THE COMMITTEE, BY A VOTE OF 12 TO 2, DELETED SEC. 2,
WHICH HAD BARRED STATES FROM MAKING RACIAL DISCRIMINATIONS IN THE
ENJOYMENT OF THE RIGHT OF SUFFRAGE AFTER 1876, AND CONFORMED SEC. 3, SO
AS TO INSURE THAT IT WOULD REMAIN IN EFFECT AFTER 1876.  AFTER MAKING
NUMEROUS OTHER CHANGES, THE COMMITTEE THEN CONCLUDED ITS DELIBERATIONS
BY REPLACING OWEN'S BAN IN SEC. 1 ON DISCRIMINATION "AS TO CIVIL
RIGHTS" WITH BINGHAM'S NOW FAMILIAR LANGUAGE.  HERE THE VOTE WAS 10 TO
3, WITH THE MAJORITY AGAIN CONTAINING A FULL SPECTRUM OF POLITICAL
VIEWS.  ID., AT 100-106.  THE REASONS FOR THE REWRITING ARE NOT
ENTIRELY CLEAR.  THE ONLY KNOWN EXPLANATION WAS GIVEN BY OWEN IN 1875,
WHEN HE WROTE AN ARTICLE RECALLING A CONTEMPORARY CONVERSATION WITH
STEVENS.  STEVENS HAD REPORTEDLY EXPLAINED THAT THE COMMITTEE'S
ORIGINAL DECISIONS HAD "GOT NOISED ABROAD," AND THAT, AS A RESULT,
SEVERAL STATE DELEGATIONS HAD HELD CAUCUSES WHICH DECIDED THAT THE
EXPLICIT REFERENCES TO "NEGRO SUFFRAGE, IN ANY SHAPE, OUGHT TO BE
EXCLUDED FROM THE PLATFORM.  . . . "  QUOTED IN ID., AT 302.  THUS, THE
PROVISION FOR SUFFRAGE AFTER 1876 HAD TO BE ELIMINATED, BUT STEVENS DID
NOT EXPLAIN WHY BINGHAM'S VERSION OF SEC. 1 WAS THEN SUBSTITUTED FOR
OWEN'S VERSION.  PERHAPS THE CHANGES IN SEC. 1 OF THE AMENDMENT WERE
THOUGHT BY THE COMMITTEE TO BE MERE LINGUISTIC IMPROVEMENTS WHICH DID
NOT SUBSTANTIALLY MODIFY OWEN'S MEANING AND WHICH DID NOT EXTEND ITS
COVERAGE TO POLITICAL AS DISTINGUISHED FROM CIVIL RIGHTS.  BUT, AT THE
VERY LEAST THE COMMITTEE MUST HAVE REALIZED THAT IT WAS SUBSTITUTING
FOR OWEN'S RATHER SPECIFIC LANGUAGE BINGHAM'S FAR MORE ELASTIC LANGUAGE
- LANGUAGE THAT, AS ONE SCHOLAR HAS NOTED, IS FAR MORE "CAPABLE OF
GROWTH" AND "RECEPTIVE TO 'LATITUDINARIAN' CONSTRUCTION."  BICKEL, THE
ORIGINAL UNDERSTANDING AND THE SEGREGATION DECISION, 69 HARV.L.REV.  1,
61, 63 (1955).  IT IS, MOREOVER, AT LEAST EQUALLY PLAUSIBLE THAT THE
COMMITTEE MEANT TO SUBSTITUTE FOR OWEN'S NARROW PROVISION DEALING
SOLELY WITH CIVIL RIGHTS A BROADER PROVISION THAT HAD ORIGINATED AND
BEEN UNDERSTOOD ONLY TWO MONTHS EARLIER AS PROTECGINT EQUALITY IN THE
RIGHT OF SUFFRAGE AS WELL AS EQUALITY OF CIVIL RIGHTS. 

THE PURPOSE OF SEC. 1 IN RELATION TO THE SUFFRAGE EMERGES OUT OF THE
DEBATES ON THE FLOOR OF CONGRESS WITH AN EQUAL OBSCURITY.  IN THE
SEARCH FOR MEANING ONE MUST BEGIN, OF COURSE, WITH THE STATEMENTS OF
LEADING MEN IN CONGRESS, SUCH AS BINGHAM AND HOWARD.  BINGHAM, FOR ONE,
STATED WITHOUT APPARENT EQUIVOCATION THAT "(THE AMENDMENT DOES NOT GIVE
. . . THE POWER TO CONGRESS OF REGULATING SUFFRAGE IN THE SEVERAL
STATES."  GLOBE 2542.  SIMILARLY, SENATOR HOWARD, AFTER NOTING THAT THE
AMENDMENT WOULD ACCORD TO NEGROES THE SAME PROTECTION IN THEIR
FUNDAMENTAL RIGHTS AS THE LAW GAVE TO WHITES, EXPLICITLY CAUTIONED THAT
"THE FIRST SECTION OF THE PROPOSED AMENDMENT DOES NOT GIVE TO EITHER OF
THESE CLASSES THE RIGHT OF VOTING."  GLOBE 2766.  /37/  BUT SUCH
STATEMENTS ARE NOT AS UNAMBIGUOUS AS THEY INITIALLY APPEAR TO BE.
THUS, HOWARD, WITH THAT "LACK OF LEGAL PRECISION" TYPICAL OF THE
PERIOD, STATED THAT THE RIGHT OF SUFFRAGE WAS NOT ONE OF THE PRIVILEGES
AND IMMUNITIES PROTECTED BY THE CONSTITUTION, GLOBE 2766, IMMEDIATELY
AFTER HE HAD READ INTO THE RECORD AN EXCERPT FROM THE CASE OF CORFIELD
V. CORYELL, 6 F.CAS.  546 (NO. 3230) (CCED PA. 1825), AN EXCERPT WHICH
LISTED THE ELECTIVE FRANCHISE AS AMONG THE PRIVILEGES AND IMMUNITIES. 
GLOBE 2765.  BINGHAM WAS EQUALLY AMBIGUOUS, FOR HE TOO THOUGHT THAT THE
ELECTIVE FRANCHISE WAS A CONSTITUTIONALLY PROTECTED PRIVILEGE AND
IMMUNITY.  GLOBE 2542.  INDEED, AT ONE POINT IN THE DEBATES, BINGHAM
MADE WHAT IS FOR US A COMPLETELY INCONGRUOUS STATEMENT: 

"TO BE SURE WE ALL AGREE, AND THE GREAT BODY OF THE PEOPLE OF THIS
COUNTRY AGREE, AND THE COMMITTEE THUS FAR IN REPORTING MEASURES OF
RECONSTRUCTION AGREE, THAT THE EXERCISE OF THE ELECTIVE FRANCHISE,
THOUGH IT BE ONE OF THE PRIVILEGES OF A CITIZEN OF THE REPUBLIC, IS
EXCLUSIVELY UNDER THE CONTROL OF THE STATES."  GLOBE 2542.  BINGHAM
SEEMED TO SAY IN ONE BREATH FIRST, THAT THE FRANCHISE WAS A
CONSTITUTIONALLY PROTECTED PRIVILEGE IN SUPPORT OF WHICH CONGRESS UNDER
SEC. 5 OF THE FOURTEENTH AMENDMENT COULD LEGISLATE AND THEN, IN THE
NEXT BREATH, THAT THE FRANCHISE WAS EXCLUSIVELY UNDER THE CONTROL OF
THE STATES. 

BINGHAM'S WORDS MAKE LITTLE SENSE TO MODERN EARS; YET, WHEN THEY
WERE UTTERED, HIS WORDS MUST HAVE MADE SOME SENSE, AT LEAST TO BINGHAM
AND PROBABLY TO MANY OF HIS LISTENERS.  THE SEARCH FOR THEIR MEANING
PROBABLY OUGHT TO BEGIN WITH ART. IV, SEC. 2-- THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE ORIGINAL CONSTITUTION.  IN THE MINDS OF
MEMBERS OF THE 39TH CONGRESS, THE LEADING CASE TO CONSTRUE THAT CLAUSE
WAS CORFIELD V. CORYELL, SUPRA, WHICH HAD LISTED AMONG A CITIZEN'S
PRIVILEGES AND IMMUNITIES "THE ELECTIVE FRANCHISE, AS REGULATED AND
ESTABLISHED BY THE LAWS OR CONSTITUTION OF THE STATE IN WHICH IT IS TO
BE EXERCISED."  6 F.CAS.,AT 522.  HERE AGAIN IS THE SAME APPARENT
AMBIGUITY THAT LATER OCCURRED IN BINGHAM'S THOUGHT-- THAT THE FRANCHISE
IS A FEDERALLY PROTECTED RIGHT, BUT ONLY TO THE EXTENT IT IS REGULATED
AND ESTABLISHED BY STATE LAW.  THE AMBIGUITY WAS, HOWEVER, ONLY
APPARENT AND NOT REAL, FOR THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE
ORIGINAL CONSTITUTION SERVED A PECULIAR FUNCTION; IT DID NOT CREATE
ABSOLUTE RIGHTS BUT ONLY PLACED A NONCITIZEN OF A STATE "UPON A PERFECT
EQUALITY WITH ITS OWN CITIZENS" AS TO THOSE FUNDAMENTAL RIGHTS ALREADY
CREATED BY STATE LAW.  SCOTT V. SANDFORD, 19 HOW.  393, 407 (1857). 
ACCORD, ID., AT 584 (DISSENTING OPINION).  THE PRIVILEGES AND
IMMUNITIES CLAUSE, THAT IS, WAS A SORT OF EQUAL PROTECTION CLAUSE
ADOPTED FOR THE BENEFIT OF OUT-OF-STATE CITIZENS; /38/  IT REQUIRED FOR
EXAMPLE, THAT IF A STATE GAVE ITS OWN CITIZENS A RIGHT TO ENTER INTO A
LAWFUL BUSINESS, IT COULD NOT ARBITRARILY DENY THE SAME RIGHT TO OUT-OF
STATE CITIZENS SOLELY BECAUSE THEY CAME FROM OUT OF STATE.  SEE WARD V.
MARYLAND, 12 WALL.  418, 430 (1871).  THUS, WHAT BINGHAM MAY HAVE MEANT
IN INDICATING THAT THE FRANCHISE WAS INCLUDED WITHIN THE SCOPE OF THE
PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT WHILE
REMAINING ENTIRELY UNDER THE CONTROL OF THE STATES WAS THAT, ALTHOUGH
THE STATES WOULD BE FREE IN GENERAL TO CONFER THE FRANCHISE UPON
WHOMEVER THEY CHOSE, CONGRESS WOULD HAVE POWER TO BAR THEM FROM RACIAL
OR OTHER ARBITRARY DISCRIMINATIONS IN MAKING THEIR CHOICES.  IN SHORT,
THE PRIVILEGES AND IMMUNITIES CLAUSE MIGHT FOR BINGHAM HAVE MEANT THE
SAME AS THE EQUAL PROTECTION CLAUSE; AS HE LATER EXPLAINED IN A
CAMPAIGN SPEECH, SEC. 1 WAS NOTHING BUT "A SIMPLE, STRONG, PLAIN
DECLARATION THAT EQUAL LAWS AND EQUAL AND EXACT JUSTICE SHALL HEREAFTER
BE SECURED WITHIN EVERY STATE OF THIS UNION . . . . "  CINCINNATI DAILY
COMMERCIAL, AUG. 27, 1866, QUOTED IN JAMES 160. 

ONE WAY, THEN, TO RECONCILE THE SEEMINGLY INCONGRUOUS STATEMENTS OF
BINGHAM IS TO READ HIM AS UNDERSTANDING THAT, WHILE THE FOURTEENTH
AMENDMENT DID NOT TAKE FROM THE STATES NOR GRANT TO CONGRESS PLENARY
POWER TO REGULATE THE SUFFRAGE, IT DID GIVE CONGRESS POWER TO
INVALIDATE DISCRIMINATORY STATE LEGISLATION.  IN HIS WORDS, THE
AMENDMENT TOOK "FROM NO STATE ANY RIGHT WHICH HITHERTO PERTAINED TO THE
SEVERAL STATES OF THE UNION, BUT IT IMPOSED A LIMITATION UPON THE
STATES TO CORRECT THEIR ABUSES OF POWER."  IBID.  OTHERS HAD A SIMILAR
UNDERSTANDING.  THUS, FOR CHARLES SUMNER, "EQUALITY OF POLITICAL RIGHTS
. . . (DID) NOT INVOLVE NECESSARILY WHAT IS SOMETIMES CALLED THE
'REGULATION' OF THE SUFFRAGE BY THE NATIONAL GOVERNMENT, ALTHOUGH THIS
WOULD BE BEST . . . (BUT) SIMPLY REQUIRED) THE ABOLITION OF ANY
DISCRIMINATION AMONG CITIZENS, INCONSISTENT WITH EQUAL RIGHTS."  C.
SUMNER, ARE WE A NATION?  34 (1867).  OR, AS STEVENS EXPLAINED IN
PRESENTING THE AMENDMENT TO THE HOUSE, IT MERELY ALLOWED "CONGRESS TO
CORRECT THE UNJUST LEGISLATION OF THE STATES, SO FAR THAT THE LAW WHICH
OPERATES UPON ONE MAN SHALL OPERATE EQUALLY UPON ALL."  GLOBE 2459. 
CLEAREST OF ALL, PERHAPS WAS THOMAS M. COOLEY IN THE 1871 EDITION OF
HIS CONSTITUTIONAL LIMITATIONS, WHERE HE WROTE: 

"THIS AMENDMENT OF THE CONSTITUTION DOES NOT CONCENTRATE POWER IN
THE GENERAL GOVERNMENT FOR ANY PURPOSE OF POLICE GOVERNMENT WITHIN THE
STATES; ITS OBJECT IS TO PRECLUDE LEGISLATION BY ANY STATE WHICH SHALL
'ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED
STATES,' OR 'DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY WITHOUT
DUE PROCESS OF LAW,' OR 'DENY TO ANY PERSON WITHIN ITS JURISDICTION THE
EQUAL PROTECTION OF THE LAWS'; AND CONGRESS IS EMPOWERED TO PASS ALL
LAWS NECESSARY TO RENDER SUCH UNCONSTITUTIONAL STATE LEGISLATION
INEFFECTUAL."  T. COOLEY, CONSTITUTIONAL LIMITATIONS 294 (2D ED.
1871). 

THEREIS ALSO OTHER EVIDENCE THAT AT LEAST SOME MEMBERS OF CONGRESS
AND OF THE ELECTORATE BELIEVED THAT SEC. 1 OF THE FOURTEENTH AMENDMENT
GAVE CONGRESS POWER TO INVALIDATE DISCRIMINATORY STATE REGULATIONS OF
THE SUFFRAGE.  THUS, CONGRESSMAN ROGERS, A DEMOCRAT WHO HAD SERVED ON
THE JOINT COMMITTEE, AGREED WITH BINGHAM AND HOWARD THAT "THE RIGHT TO
VOTE IS A PRIVILEGE," GLOBE 2538, WHILE CONGRESSMAN BOYER, ANOTHER
DEMOCRAT, FEARED THAT SEC. 1 WAS "INTENDED TO SECURE ULTIMATELY, AND TO
SOME EXTENT INDIRECTLY, THE POLITICAL EQUALITY OF THE NEGRO RACE." 
GLOBE 2467.  A THIRD DEMOCRAT, CONGRESSMAN NIBLACK, THOUGHT THE SECTION
SUFFICIENTLY AMBIGUOUS TO WARN THAT HE MIGHT, ALTHOUGH IN FACT HE NEVER
DID, OFFER THE FOLLOWING ADDITION TO IT: 

     "PROVIDED, THAT NOTHING CONTAINED IN THIS ARTICLE SHALL BE SO

  CONSTRUED AS TO AUTHORIZE CONGRESS TO REGULATE OR CONTROL THE

  ELECTIVE FRANCHISE WITHIN ANY STATE, OR TO ABRIDGE OR RESTRICT

THE POWER OF ANY STATE TO REGULATE OR CONTROL THE SAME WITHIN ITS

  OWN JURISDICTION, EXCEPT AS IN THE THIRD SECTION HEREOF

  PRESCRIBED."  GLOBE 2465. 

REPUBLICANS ALSO ALLUDED ON OCCASION TO THEIR BELIEF THAT THE AMENDMENT
MIGHT GIVE CONGRESS POWER TO PREVENT DISCRIMINATION IN REGARD TO THE
SUFFRAGE.  RADICAL SENATOR STEWART, FOR EXAMPLE, WHILE UNHAPPY THAT THE
AMENDMENT DID NOT DIRECTLY CONFER SUFFRAGE, NEVERTHELESS COULD "SUPPORT
THIS PLAN" BECAUSE IT DID "NOT PRECLUDE CONGRESS FROM ADOPTING OTHER
MEANS BY A TWO-THIRDS VOTE, /39/  WHEN EXPERIENCE SHALL HAVE
DEMONSTRATED, AS IT CERTAINLY WILL, THE NECESSITY FOR A CHANGE OF
POLICY.  IN FACT IT FURNISHES A CONCLUSIVE ARGUMENT IN FAVOR OF
UNIVERSAL AMNESTY AND IMPARTIAL SUFFRAGE."  GLOBE 2964.  LIKEWISE, THE
MORE CONSERVATIVE CONGRESSMAN RAYMOND OF NEW YORK SUPPORTED THE FIRST
ON BEHALF OF EQUAL RIGHTS "IN COURTS AND ELSEWHERE,"  GLOBE 2513, AFTER
THE RADICAL CONGRESSMAN WILSON OF IOWA HAD INFORMED HIM THAT, "IF WE
GIVE A REASONABLE CONSTRUCTION TO THE TERM 'ELSEWHERE,' WE MAY INCLUDE
IN THAT THE JURY-BOX AND THE BALLOT-BOX."  GLOBE 2505.  CONGRESSMAN
STEVENS, MEANWHILE, WAS INFORMING CONGRESS THAT "IF THIS AMENDMENT
PREVAILS YOU MUST LEGISLATE TO CARRY OUT MANY PARTS OF IT," GLOBE 2544,
AND WAS LOOKING FORWARD TO "FURTHER LEGISLATION; IN ENABLING ACTS OR
OTHER PROVISIONS," GLOBE 3148, WHILE EVEN THE JOINT COMMITTEE SUBMITTED
THE AMENDMENT TO THE NATION "IN THE HOPE THAT ITS IMPERFECTIONS MAY BE
CURED, AND ITS DEFICIENCIES SUPPLIED, BY LEGISLATIVE WISDOM . . . . "
REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION, H.R. REP. NO. 30, 39TH
CONG., 1ST SESS., XXI (1866).  NOR DID THE RADICAL REPUBLICAN PRESS
DISAGREE; AS THE LANSING STATE REPUBLICAN ARGUED IN ITS EDITORIAL
COLUMNS, EVEN "IF IMPARTIAL SUFFRAGE, THE REAL VITAL QUESTION OF THE
WHOLE STRUGGLE . . . (WAS) POSTPONED THROUGH THE MULISH OBSTINACY OF
ANDREW JOHNSON,"  "FREEDOM" WOULD "TRIUMPH BY THE ADOPTION OF THE
PROPOSED AMENDMENT,"  WHICH WOULD BE FOLLOWED BY "EQUAL RIGHTS TO ALL .
. . . "  JULY 11, 1866.  AND, OF COURSE, ONCE THE AMENDMENT HAD BEEN
RATIFIED, REPUBLICANS IN CONGRESS BEGAN TO MAKE SPEECHES IN FAVOR OF
LEGISLATION WHICH WOULD IMPLEMENT THE AMENDMENT BY GUARANTEEING EQUAL
SUFFRAGE.  SEE, E.G., CONG. GLOBE, 40TH CONG., 2D SESS., 1966-1967
(1868) (REMARKS OF CONG. STEVENS); 3D SESS., 1008 (1869) REMARKS OF
SEN. SUMNER). 

OF COURSE, FEW OF THE ABOVE STATEMENTS TAKEN FROM CONGRESSIONAL
DEBATES, CAMPAIGN SPEECHES, AND THE PRESS WERE MADE WITH SUCH CLARITY
THAT ITS FRAMERS INTENDED THE FOURTEENTH AMENDMENT TO FUNCTION AS WE
THINK THEY DID.  BUT CLARITY AND PRECISION ARE NOT TO BE EXPECTED IN AN
AGE WHEN MEN ARE CONFRONTING NEW PROBLEMS FOR WHICH OLD CONCEPTS DO NOT
PROVIDE READY SOLUTIONS.  AS WE HAVE SEEN, THE 1860'S WERE SUCH AN AGE,
AND THE MEN WHO FORMULATED THE FOURTEENTH AMENDMENT WERE FACING AN
ESPECIALLY PERPLEXING PROBLEM-- THAT OF CREATING FEDERAL MECHANISMS TO
INSURE THE FAIRNESS OF STATE ACTION WITHOUT IN THE PROCESS DESTROYING
THE RESERVED POWERS OF THE STATES.  IT WOULD, INDEED, BE SURPRISING IF
THE MEN WHO FIRST FACED THIS DIFFICULT PROBLEM WERE POSSESSED OF SUCH
FORESIGHT THAT THEY COULD DEBATE ITS SOLUTION WITH COMPLETE CLARITY AND
CONSISTENCY AND WITH UNIFORMITY OF VIEWS.  THERE IS, IN SHORT, EVERY
REASON TO BELIEVE THAT DIFFERENT MEN RECONCILED IN DIFFERENT AND OFTEN
IMPRECISE WAYS THE FOURTEENTH AMENDMENT'S BROAD GUARANTEE OF EQUAL
RIGHTS AND THE STATEMENTS OF SOME OF ITS FRAMERS THAT IT DID NOT GIVE
CONGRESS POWER TO LEGISLATE UPON THE SUFFRAGE. 

SOME MEN, FOR EXAMPLE, MIGHT HAVE RECONCILED THE BROAD GUARANTEE AND
THE NARROW LANGUAGE BY CONCLUDING THAT NEGROES WERE NOT YET READY TO
EXERCISE THE FRANCHISE AND HENCE THAT A STATE WOULD NOT ACT ARBITRARILY
IN DENYING IT TO THEM WHILE GRANTING IT TO WHITES.  AS THE DEBATES MAKE
CLEAR, PROPONENTS OF THE AMENDMENT DID NOT UNDERSTAND THE EQUAL
PROTECTION CLAUSE TO FORBID STATES TO DISTINGUISH AMONG PERSONS WHERE
JUSTIFICATION FOR DISTINCTIONS APPEARED.  SEE, E.G., GLOBE 1064
(CONGRESSMAN STEVENS).  AT THE TIME THE FOURTEENTH AMENDMENT WAS
ADOPTED, THE OVERWHELMING MAJORITY OF NEGRO RESIDENTS OF THE UNITED
STATES WERE FORMER SLAVES LIVING IN THE SOUTHERN STATES.  MOST OF THEM
WERE ILLITERATE AND UNEDUCATED.  EXCEPT FOR THOSE FEW WHO HAD BEEN
KIDNAPED BY SLAVE TRADERS AFTER REACHING ADULTHOOD, THEY HAD NO PRIOR
EXPERIENCE WITH THE RESPONSIBILITIES OF CITIZENSHIP.  GIVEN THIS STATE
OF AFFAIRS, IT WOULD HARDLY BE SURPRISING IF SOME OF THE FRAMERS OF THE
FOURTEENTH AMENDMENT FELT THAT THE EQUAL PROTECTION CLAUSE WOULD NOT
FORBID THE STATES FROM CLASSIFYING NEGROES AS A GROUP TO BE DENIED THE
RIGHT TO VOTE.  EQUAL PROTECTION HAS NEVER BEEN THOUGHT TO REQUIRE
IDENTICAL TREATMENT OF ALL PERSONS IN ALL RESPECTS.  METROPOLITAN CAS.
INS. CO. V. BROWNELL, 294 U.S.,AT 583-584, AND CASES CITED.  IT
REQUIRES ONLY THAT THE STATE PROVIDE ADEQUATE JUSTIFICATION FOR
TREATING ONE GROUP DIFFERENTLY FROM ANOTHER.  LEVY V. LOUISIANA, 391
U.S. 68 (1968).  ENTIRELY ASIDE FROM ANY CONCEPTS OF RACIAL INEQUALITY
THAT MAY HAVE BEEN HELD BY SOME MEMBERS OF CONGRESS AT THAT TIME, IT
SEEMS CLEAR THAT MANY MEMBERS HAD SERIOUS RESERVATIONS ABOUT THE
ABILITY OF THE MAJORITY OF NEGROES, AFTER CENTURIES OF SLAVERY, TO CAST
AN INTELLIGENT AND RESPONSIBLE VOTE.  SEE, FOR EXAMPLE, THE DEBATES
OVER A PROPOSAL TO ENFRANCHISE NEGROES IN THE DISTRICT OF COLUMBIA IN
CONG. GLOBE, 38TH CONG., 1ST SESS., 2140-2141, 2239-2243, 2248 (1864). 
OF COURSE, WE WOULD NOT NOW HOLD THAT EVEN THE SITUATION EXISTING IN
1866 WOULD JUSTIFY WHOLESALE EXCLUSION OF NEGROES FROM THE FRANCHISE:
OUR DECISIONS HAVE CONSISTENTLY HELD THAT A PARTICULAR GROUP MAY NOT BE
DENIED THE RIGHT TO VOTE MERELY BECAUSE MANY, OR EVEN MOST, OF ITS
MEMBERS COULD PROPERLY BE EXCLUDED.  CARRINGTON V. RASH, 380 U.S., AT
93-96; KRAMER V. UNION SCHOOL DISTRICT, 395 U.S.,AT 632-633; EVANS V.
CORNMAN, 398 U.S.,AT 424-426; CF. TUSSMAN & TENBROEK, THE EQUAL
PROTECTION OF THE LAWS, 37 CALIF.L.REV.  341, 351-352 (1949).  BUT MERE
ADMINISTRATIVE CONVENIENCE WAS ONCE THOUGHT TO BE SUFFICIENT
JUSTIFICATION FOR AN OVERLY BROAD LEGISLATIVE CLASSIFICATION, SO LONG
AT LEAST AS THE RESULTANT DISCRIMINATION COULD BE JUSTIFIED AS TO A
MAJORITY OF THE CLASS AFFECTED.  TERRACE V. THOMPSON, 263 U.S. 197, 218
222 (1923); CF. KOTCH V. BOARD OF RIVER PORT PILOTS, 330 U.S. 552
(1947).  REJECTION OF THIS APPROACH HAS BEEN THE RESULT OF A JUDICIAL
DEVELOPMENT THAT COULD HARDLY HAVE BEEN KNOWN TO THE FRAMERS OF THE
AMENDMENT.  CF. BAXSTROM V. HEROLD, 383 U.S. 107, 114-115 (1966). 

OF COURSE, MANY AMERICANS IN THE 1860'S REJECTED IMPUTATIONS THAT
NEGROES WERE UNREADY FOR THE FRANCHISE AND THUS CONCLUDED THAT
DISTINCTIONS BETWEEN THE RACES IN REGARD TO THE FRANCHISE WOULD
CONSTITUTE DENIALS OF EQUAL PROTECTION.  CONGRESSMAN STEVENS, FOR ONE,
HAD NO DOUBT THAT TO ALLOW A STATE TO DENY THE FRANCHISE TO NEGROES
WOULD BE TO ALLOW IT "TO DISCRIMINATE AMONG THE SAME CLASS."  GLOBE
2460.  AND NEGROES, OF COURSE, INDIGNANTLY REJECTED SUCH IMPUTATIONS,
ARGUING THAT "WE ARE NOT ALL SO ILLITERATE AS YOU SUPPOSE" AND THAT
"EVEN IF WE WERE, OUR INSTINCTS HAVE PROBED BETTER THAN THAT 'EDUCATED
CLASS,' WHOSE 'LITTLE LEARNING' PROMPTED THEM TO ATTEMPT THE IMPOSSIBLE
THING OF DESTROYING THIS GREAT REPUBLIC.  . . . "  LETTER TO THE
EDITOR, NEW YORK TIMES, NOV. 4, 1866. 

AMONG THE MEN WHO REFUSED TO REGARD NEGROES AS ILL PREPARED FOR THE
EXERCISE OF THE FRANCHISE, THERE MAY HVE BEEN SOME WHO DID NOT
UNDERSTAND THE SUBTLE DISTINCTIONS OF CONSTITUTIONAL LAWYERS SUCH AS
BINGHAM AND WHO THUS ACCEPTED AT FACE VALUE ASSURANCES THAT THE
FOURTEENTH AMENDMENT GAVE CONGRESS NO POWER OVER THE SUFFRAGE.  AS A
RESULT, AT LEAST THREE IDENTIFIABLE GROUPS MAY HAVE EXISTED WITHIN THE
REPUBLICAN MAJORITIES THAT ENACTED AND RATIFIED THE AMENDMENT-- THOSE
WHO THOUGHT THAT CONGRESS WOULD HAVE POWER TO INSURE TO NEGROES THE
SAME RIGHT TO SUFFRAGE AS THE STATES GAVE TO WHITES, THOSE WHO THOUGHT
THAT CONGRESS WOULD NOT HAVE SUCH POWER SINCE NEGROES AND WHITES
CONSTITUTED DISTINCE AND DISSIMILAR CLASSES FOR VOTING PURPOSES, AND
THOSE WHO THOUGHT CONGRESS WOULD POSSESS NO POWER AT ALL OVER THE
SUFFRAGE.  PERHAPS ALL THREE SUCH GROUPS DID NOT EXIST IN 1866 IN
CONGRESS AND IN THE NATION AT LARGE, BUT SURELY THE EVIDENCE IS NOT
CLEAR "BEYOND ANY REASONABLE DOUBT" THAT THE ONLY EXISTENT GROUP WAS
THE LAST ONE, CONSISTING OF MEN WHO, DESPITE THE BROAD LANGUAGE OF SEC.
1 AND THE HINTS BY SPEAKERS OF ITS APPLICABILITY TO THE SUFFRAGE,
SIMPLY ASSUMED WITHOUT DEVELOPING ANY ANALYTICAL FRAMEWORK IN SUPPORT
OF THEIR ASSUMPTION THAT THE SECTION WOULD NOT BE SO APPLIED. 

THE EVIDENCE, IN SUM, PLAUSIBLY SUGGESTS THAT THE MEN WHO FRAMED THE
FOURTEENTH AMENDMENT POSSESSED DIFFERING VIEWS AS TO THE LIMITS OF ITS
APPLICABILITY BUT THAT THEY PAPERED OVER THEIR DIFFERENCES BECAUSE
THOSE DIFFERENCES WERE NOT ALWAYS FULLY APPARENT AND BECAUSE THEY COULD
NOT FORESEE WITH PRECISION HOW THEIR AMENDMENT WOULD OPERATE IN THE
FUTURE.  MOREOVER, POLITICAL CONSIDERATIONS MILITATED AGAINST
CLARIFICATION OF ISSUES AND IN FAVOR OF COMPROMISE.  MUCH OF THE NORTH,
AS ALREADY NOTED, OPPOSED NEGRO SUFFRAGE, AND MANY REPUBLICANS IN
CONGRESS HAD TO SEEK RE-ELECTION FROM CONSTITUENCIES WHERE RACIAL
PREJUDICE REMAINED RAMPANT.  REPUBLICANS IN THE FORTHCOMING ELECTIONS
THUS FOUND IT CONVENIENT TO SPEAK DIFFERENTLY BEFORE DIFFERENT
CONSTITUENCIES; AS THE REPUBLICAN STATE CHAIRMAN OF OHIO WROTE, IN
NORTHERN COUNTIES OF THE STATE "SOME OF OUR SPEAKERS HAVE OPENLY
ADVOCATED IMPARTIAL SUFFRAGE, WHILE IN OTHER PLACES IT WAS THOUGHT
NECESSARY, NOT ONLY TO REPUDIATE IT BUT TO OPPOSE IT."  LETTER FROM B.
R. COWAN TO S. P. CHASE, OCT. 12, 1866, QUOTED IN JAMES 168. 
SIMILARLY, SENATOR WILSON OF MASSSACHUSETTS, WHEN ACCUSED SHORTLY AFTER
THE 1866 ELECTIONS OF MISREPRESENTING THE ISSUES OF THE CAMPAIGN IN
DELAWARE BY SAYING NOTHING OF NEGRO SUFFRAGE, REPLIED THAT SINCE HE HAD
BEEN "IN A STATE WHERE NOT MUCH PROGRESS HAD BEEN MADE, I ACTED
SOMEWHAT ON THE SCRIPTURAL PRINCIPLE OF GIVING 'MILK TO BABES.'"  CONG.
GLOBE, 39TH CONG., 2D SESS., 42.  APPARENTLY CONGRESSMAN ASHLEY OF OHIO
ACTED UPON SIMILAR PRINCIPLES, FOR WHEN HE WAS ASKED AFTER THE HOUSE
HAD INITIALLY APPROVED THE AMENDMENT WHETHER CONGRESS HAD "POWER TO
CONFER THE RIGHT OF SUFFRAGE UPON NEGROES IN THE STATES," HE
RESPONDED, 

     "WELL, SIR, I DO NOT INTEND TO PUT MYSELF ON RECORD AGAINST
THE

  RIGHT OF CONGRESS TO DO THAT.  I AM NOT PREPARED NOW TO ARGUE THE

  POINT WITH MY COLLEAGUE; BUT I WILL SAY TO HIM THAT WHEN THE TIME

  COMES FOR THE AMERICAN CONGRESS TO TAKE ACTION ON THE QUESTION, I

  WILL BE READY TO SPEAK.  I WILL NOT SAY NOW WHETHER I WOULD VOTE

  FOR OR AGAINST SUCH A PROPOSITION."  GLOBE 2882. 

THUS, PRECISE LEGAL ANALYSIS AND CLARITY OF THOUGHT WERE BOTH
INTELLECTUALLY DIFFICULT AND POLITICALLY UNWISE.  WHAT REPUBLICANS
NEEDED, IN THE WORDS OF WENDELL PHILLIPS, THE FORMER ABOLITIONIST
LEADER, WAS "A PARTY TRICK TO TIDE OVER THE ELECTIONS AND SAVE TIME,"
AFTER WHICH THEY COULD "FLOAT BACK INTO CONGRESS, ABLE TO PASS AN ACT
THAT SHALL GIVE THE BALLOT TO THE NEGRO AND INITIATE AN AMENDMENT TO
THE CONSTITUTION WHICH SHALL SECURE IT TO HIM."  SPEECH OF WENDELL
PHILLIPS, JULY 4, 1866, QUOTED IN A. HARRIS, A. REVIEW OF THE POLITICAL
CONFLICT IN AMERICA 437 (1876).  SIMILARLY, THE NEW YORK TIMES, EDITED
BY CONGRESSMAN HENRY J. RAYMOND, A CONSERVATIVE REPUBLICAN WHO
ULTIMATELY WOULD SUPPORT THE AMENDMENT, OBSERVED THAT "ALL THE
EXCITEMENT THAT HAD BEEN RAISED ABOUT CONSTITUTIONAL AMENDMENTS . . .
HAS BEEN SIMPLY DUST THROWN IN THE EYES OF THE PUBLIC TO COVER THE
APPROACH TO THE GRAND FUNDAMENTAL, INDISPENSABLE PRINCIPLE OF UNIVERSAL
NEGRO SUFFRAGE . . . . "  APRIL 27, 1866, QUOTED IN HARRIS, SUPRA, AT
433. 

NOT SURPRISINGLY, THE PRODUCT OF SUCH POLITICAL NEEDS WAS AN
AMENDMENT WHICH CONTEMPORARIES SAW WAS VAGUE AND IMPRECISE.  DEMOCRATIC
SENATOR HENDRICKS, FOR EXAMPLE, PROTESTED THAT HE HAD "NOT HEARD ANY
SENATOR ACCURATELY DEFINE, WHAT ARE THE RIGHTS AND IMMUNITIES OF
CITIZENSHIP," GLOBE 3039, WHILE CONGRESSMAN BOYER, ALSO IN ITS
PHRASEOLOGY, BEING OPEN TO AMBIGUITY AND ADMITTING OF CONFLICTING
CONSTRUCTIONS."  GLOBE 2467.  REPUBLICANS, 599, WERE AWARE OF THE
AMENDMENT'S VAGUENESS.  THUS, WHEN HE PRESENTED THE AMENDMENT TO THE
SENATE, SENATOR HOWARD NOTED THAT "IT WOULD BE A CURIOUS QUESTION TO
SOLVE WHAT ARE THE PRIVILEGES AND IMMUNITIES OF CITIZENS" AND PROPOSED
NOT TO CONSIDER THE QUESTION AT LENGTH, SINCE "IT WOULD BE A SOMEWHAT
BARREN DISCUSSION."  INSTEAD, LIKE THE PRE-CIVIL WAR SUPREME COURT,
/40/  HE "VERY MODESTLY DECLINED TO GO INTO A DEFINITION OF THEM,
LEAVING QUESTIONS ARISING UNDER THE CLAUSE TO BE DISCUSSED AND
ADJUDICATED WHEN THEY SHOULD HAPPEN PRACTICALLY TO ARISE."  GLOBE
2765. 

THUS, THE HISTORICAL EVIDENCE DOES NOT POINT TO A SINGLE, CLEAR-CUT
CONCLSUION THAT CONTEMPORARIES VIEWED THE FIRST SECTION OF THE
FOURTEENTH AMENDMENT AS AN EXPLICIT ABANDONMENT OF THE RADICAL GOAL OF
EQUAL SUFFRAGE FOR NEGROES.  RATHER THE EVIDENCE SUGGESTS AN
ALTERNATIVE HYPOTHESIS:  THAT THE AMENDMENT WAS FRAMED BY MEN WHO
POSSESSED DIFFERING VIEWS ON THE GREAT QUESTION OF THE SUFFRAGE AND
WHO, PARTLY IN ORDER TO FORMULATE SOME PROGRAM OF GOVERNMENT AND PARTLY
OUT OF POLITICAL EXPEDIENCY, PAPERED OVER THEIR DIFFERENCES WITH THE
BROAD, ELASTIC LANGUAGE OF SEC. 1 AND LEFT TO FUTURE INTERPRETERS OF
THEIR AMENDMENT THE TASK OF RESOLVING IN ACCORDANCE WITH FUTURE VISION
AND FUTURE NEEDS THE ISSUES THAT THEY LEFT UNRESOLVED.  SUCH A
HYPOTHESIS STRIKES US AS FAR MORE CONSISTENT WITH THE TURBULENT
CHARACTER OF THE TIMES THAN ONE RESTING UPON A BELIEF THAT THE BROAD
LANGUAGE OF THE EQUAL PROTECTION CLAUSE CONTAINED A HIDDEN LIMITATION
UPON ITS OPERATION THAT WOULD PREVENT IT FROM APPLYING TO STATE ACTION
REGULATING RIGHTS THAT COULD BE CHARACTERIZED AS "POLITICAL."  /41/ 

NOR IS SUCH A HYPOTHESIS INCONSISTENT WITH THE SUBSEQUENT ENACTMENT
OF THE FIFTEENTH, NINETEENTH, AND TWENTY-FOURTH AMENDMENTS.  THOSE WHO
SUBMITTED THE FIFTEENTH AMENDMENT TO THE STATES FOR RATIFICATION COULD
WELL HAVE DESIRED THAT ANY PROHIBITION AGAINST RACIAL DISCRIMINATION IN
VOTING STAND UPON A FIRMER FOUNDATION THAN MERE LEGISLATIVE ACTION
CAPABLE OF REPEAL /42/  OR THE VARAGIES OF JUDICIAL DECISION.  /43/  OR
THEY COULD MERELY HAVE CONCLUDED THAT, WHATEVER MIGHT BE THE CASE WITH
OTHER RIGHTS, THE RIGHT TO VOTE WAS TOO IMPORTANT TO ALLOW
DISENFRANCHISEMENT OF ANY PERSON FOR NO BETTER REASON THAN THAT OTHERS
OF THE SAME RACE MIGHT NOT BE QUALIFIED.  AT LEAST SOME OF THE
SUPPORTERS OF THE NINETEENTH AMENDMENT BELIEVED THAT SEX DISCRIMINATION
IN VOTING WAS ITSELF PROSCRIBED BY THE FOURTEENTH AMENDMENT'S GUARANTEE
OF EQUAL PROTECTION.  57 CONG.REC.  3053 (1919).  AND FINALLY, THE
TWENTY-FOURTH AMENDMENT WAS NOT PROPOSED TO THE STATES UNTIL THIS COURT
HAD HELD, IN BREEDLOVE V. SUTTLES, 302 U.S. 277 (1937), /44/  THAT
STATE LAWS REQUIRING PAYMENT OF A POLL TAX AS A PREREQUISITE TO VOTING
DID NOT IPSO FACTO VIOLATE THE EQUAL PROTECTION CLAUSE.  ACCORDINGLY,
WE SEE NO REASON THAT THE MERE ENACTMENT OF THESE AMENDMENTS CAN BE
THOUGHT TO IMPLY THAT THEIR PROPONENTS BELIEVED THE FOURTEENTH
AMENDMENT DID NOT APPLY TO STATE ALLOCATIONS OF POLITICAL POWER.  AT A
DUBIOUS BEST, THESE AMENDMENTS MAY BE READ AS IMPLYING THAT THEIR
PROPONENTS FELT PARTICULAR STATE ALLOCATIONS OF POWER A PROPER EXERCISE
OF POWER UNDER THE EQUAL PROTECTION CLAUSE.     NOR DO WE FIND
PERSUASIVE OUR BROTHER HARLSN'A ARGUMENT THAT SEC. 2 OF THE FOURTEENTH
AMENDMENT WAS INTENDED AS AN EXCLUSIVE REMEDY FOR STATE RESTRICTIONS ON
THE FRANCHISE, AND THAT THEREFORE ANY SUCH RESTRICTIONS ARE PERMISSIBLE
UNDER SEC. 1.  AS CONGRESSMAN BINGHAM EMPHATICALLY TOLD THE HOUSE, WHEN
THE SAME ARGUMENT WAS MADE BY CONGRESSMAN BROMWELL, 

"THERE HAS NOT BEEN SUCH A CONSTRUCTION, IN MY OPINION, OF A LAW
WHICH IMPOSES ONLY A PENALTY, FOR CENTURIES, IF EVER, IN ANY COUNTRY
WHERE THE COMMON LAW OBTAINS.  THE CONSTRUCTION INSISTED UPON BY THE
GENTLEMAN AMOUNTS TO THIS, THAT A LAW WHICH INFLICTS A PENALTY OR WORKS
A FORFEITURE FOR DOING AN ACT, BY IMPLICATION AUTHORIZES THE ACT TO BE
DONE FOR DOING WHICH THE PENALTY IS INFLICTED.  THERE CANNOT BE SUCH A
CONSTRUCTION OF THE PROVISO.  IT IS A PENALTY.  IT SAYS IN TERMS THAT
IF ANY OF THE STATES OF THE UNITED STATES SHALL DISOBEY THE
CONSTITUTION . . . AS A PENALTY SUCH STATE SHALL LOSE POLITICAL POWER
IN THIS HOUSE . . . .

   .          .          .          . 

     "YOU PLACE UPON YOUR STATUTE-BOOK A LAW PUNISHING THE CRIME OF

  MURDER WITH DEATH.  YOU DO NOT THEREBY, BY IMPLICATION, SAY THAT

  ANYBODY MAY, OF RIGHT, COMMIT MURDER.  YOU BUT PASS A PENAL LAW. 

  YOU DO NOT PROHIBIT MURDER IN THE CONSTITUTION; YOU GUARANTY LIFE

  IN THE CONSTITUTION.  YOU DO NOT PROHIBIT THE ABUSE OF POWER BY

  THE MAJORITY IN THE CONSTITUTION IN EXPRESS TERMS, BUT YOU

  GUARANTY THE EQUAL RIGHT OF ALL FREE MALE CITIZENS OF FULL AGE TO

  ELECT REPRESENTATIVES; AND BY THE PROVISO YOU INFLICT A PENALTY

  UPON A STATE WHICH DENIES OR ABRIDGES THAT RIGHT ON ACCOUNT OF

  RACE OR COLOR.  IN DOING THAT WE ARE NOT TO BE TOLD THAT WE

CONFER A POWER TO OVERRIDE THE EXPRESS GUARANTEES OF THE

CONSTITUTION.  WE PROPOSE THE PENALTY IN AID OF THE GUARANTEE,

  NOT IN AVOIDANCE OF IT."  GLOBE 431-432. 

SEE VAN ALSTYNE, SUPRA, 48-68. 

IT MAY BE CONCEIVABLE THAT SEC. 2 WAS INTENDED TO BE THE SOLE REMEDY
AVAILABLE WHEN A STATE DEPRIVED ITS CITIZENS OF THEIR RIGHT TO VOTE,
BUT IT IS AT LEAST EQUALLY PLAUSIBLE THAT CONGRESSIONAL LEGISLATION
PURSUANT TO SECS. 1 AND 5 WAS THOUGHT BY THE FRAMERS OF THE AMENDMENT
TO BE ANOTHER POTENTIAL REMEDY.  SECTION 2, IN SUCH A SCHEME, IS HARDLY
SUPERFLUOUS:  IT WAS OF CRITICAL IMPORTANCE IN ASSURING THAT, SHOULD
THE SOUTHERN STATES DENY THE FRANCHISE TO NEGROES, THE CONGRESS CALLED
UPON TO REMEDY THAT DISCRIMINATION WOULD NOT BE CONTROLLED BY THE
BENEFICIARIES OF DISCRIMINATION THEMSELVES.  AND IT COULD, OF COURSE,
HAVE BEEN EXPECTED TO PROVIDE AT LEAST A LIMITED REMEDY IN THE EVENT
THAT BOTH CONGRESS AND THE COURTS TOOK NO ACTION UNDER SEC. 1.  NEITHER
LOGIC NOR HISTORICAL EVIDENCE COMPELLINGLY SUGGESTS THAT SEC. 2 WAS
INTENDED TO BE MORE THAN A REMEDY SUPPLEMENTARY, AND IN SOME
CONCEIVABLE CIRCUMSTANCES INDISPENSABLE, TO OTHER CONGRESSIONAL AND
JUDICIAL REMEDIES AVAILABLE UNDER SECS. 1 AND 5.  SEE GENERALLY VAN
ALSTYNE, SUPRA. 

THE HISTORICAL RECORD LEFT BY THE FRAMERS OF THE FOURTEENTH
AMENDMENT, BECAUSE IT IS A PRODUCT OF DIFFERING AND CONFLICTING
POLITICAL PRESSURES AND CONCEPTIONS OF FEDERALISM, IS THUS TOO VAGUE
AND IMPRECISE TO PROVIDE US WITH SURE GUIDANCE IN DECIDING THE PENDING
CASES.  WE MUST THEREFORE CONCLUDE THAT ITS FRAMERS UNDERSTOOD THEIR
AMENDMENT TO BE A BROADLY WORDED INJUNCTION CAPABLE OF BEING
INTERPRETED BY FUTURE GENERATIONS IN ACCORDANCE WITH THE VISION AND
NEEDS OF THOSE GENERATIONS.  WE WOULD BE REMISS IN OUR DUTY IF, IN AN
ATTEMPT TO FIND CERTAINTY AMIDST UNCERTAINTY, WE WERE TO MISREAD THE
HISTORICAL RECORD AND CEASE TO INTERPRET THE AMENDMENT AS THIS COURT
HAS ALWAYS INTERPRETED IT.

        D 

THERE REMAINS ONLY THE QUESTION WHETHER CONGRESS COULD RATIONALLY
HAVE CONCLUDED THAT DENIAL OF THE FRANCHISE TO CITIZENS BETWEEN THE
AGES OF 18 AND 21 WAS UNNECESSARY TO PROMOTE ANY LEGITIMATE INTERESTS
OF THE STATES IN ASSURING INTELLIGENT AND RESPONSIBLE VOTING.  THERE IS
NO NEED TO SET OUT THE LEGISLATIVE HISTORY OF TITLE III AT ANY GREAT
LENGTH HERE.  /45/  PROPOSALS TO LOWER THE VOTING AGE TO 18 HAD BEEN
BEFORE CONGRESS AT SEVERAL TIMES SINCE 1942.  /46/  THE SENATE
SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS CONDUCTED EXTENSIVE HEARINGS
ON THE MATTER IN 1968 AND AGAIN IN 1970, /47/  AND THE QUESTION WAS
DISCUSSED AT SOME LENGTH ON THE FLOOR OF BOTH THE HOUSE AND THE
SENATE. 

CONGRESS WAS AWARE, OF COURSE, OF THE FACTS AND STATE PRACTICES
ALREADY DISCUSSED.  /48/  IT WAS AWARE OF THE OPINION OF MANY
HISTORIANS THAT CHOICE OF THE AGE OF 21 AS THE AGE OF MATURITY WAS AN
OUTGROWTH OF MEDIEVAL REQUIREMENTS OF TIME FOR MILITARY TRAINING AND
DEVELOPMENT OF A PHYSIQUE ADEQUTE TO BEAR HEAVY ARMOR.  /49/  IT KNEW
THAT WHEREAS ONLY SIX PERCENT OF 18-YEAR-OLDS IN 1900 HAD COMPLETED
HIGH SCHOOL, 81 PERCENT HAVE DONE SO TODAY.  /50/  CONGRESS WAS AWARE
THAT 18-YEAR-OLDS TODAY MAKE UP A NOT INSUBSTANTIAL PROPORTION OF THE
ADULT WORK FORCE; /51/  AND IT WAS ENTITLED TO DRAW UPON ITS EXPERIENCE
IN SUPREVISING THE FEDERAL ESTABLISHMENT TO DETERMINE THE COMPETENCE
AND RESPONSIBILITY WITH WHICH 18-YEAR-OLDS PERFORM THEIR ASSIGNED
TASKS.  AS CONGRESS RECOGNIZED, ITS JUDGMENT THAT 18-YEAR-OLDS ARE
CAPABLE OF VOTING IS CONSISTENT WITH ITS PRACTICE OF ENTRUSTING THEM
WITH THE HEAVY RESPONSIBILITIES OF MILITARY SERVICE.  SEE SEC.
301(A)(1) OF THE AMENDMENTS.  /52/  FINALLY, CONGRESS WAS PRESENTED
WITH EVIDENCE THAT THE AGE OF SOCIAL AND BIOLOGICAL MATURITY IN MODERN
SOCIETY HAS BEEN CONSISTENTLY DECREASING.  DR. MARGARET MEAD, AN
ANTHROPOLITIST, TESTIFED THAT IN THE PAST CENTURY, THE "AGE OF PHYSICAL
MATURITY HAS BEEN DROPPING AND HAS DROPPED OVER 3 YEARS."  /53/  MANY
SENATORS AND REPRESENTATIVES, INCLUDING SEVERAL INVOLVED IN NATIONAL
CAMPAIGNS, TESTIFIED FROM PERSONAL EXPERIENCE THAT 18-YEAR-OLDS OF
TODAY APPEARED AT LEAST AS MATURE AND INTELLIGENT AS 21-YEAR-OLDS IN
THE CONGRESSMEN'S YOUTH.  /54/ 

FINALLY, AND PERHAPS MOST IMPORTANT, CONGRESS HAD BEFORE IT
INFORMATION ON THE EXPERIENCE OF TWO STATES, GEORGIA AND KENTUCKY,
WHICH HAVE ALLOWED 18-YEAR-OLDS TO VOTE SINCE 1943 AND 1955,
RESPECTIVELY.  EVERY ELECTED REPRESENTATIVE FROM THOSE STATES WHO SPOKE
TO THE ISSUE AGREED THAT, AS SENATOR TALMADGE STATED, "YOUNG PEOPLE (IN
THESE STATES) HAVE MADE THE SOPHISTICATED DECISIONS AND HAVE ASSUMED
THE MATURE RESPONSIBILITIES OF VOTING.  THEIR PERFORMANCE HAS EXCEEDED
THE GREATEST HOPES AND EXPECTATIONS."  /55/ 

IN SUM, CONGRESS HAD AMPLE EVIDENCE UPON WHICH IT COULD HAVE BASED
THE CONCLUSION THAT EXCLUSION OF CITIZENS 18 TO 21 YEARS OF AGE FROM
THE FRANCHISE IS WHOLLY UNNECESSARY TO PROMOTE ANY LEGITIMATE INTEREST
THE STATES MAY HAVE IN ASSURING INTELLIGENT AND RESPONSIBLE VOTING. 
SEE KATZENBACH V. MORGAN, 384 U.S.,AT 653-656.  IF DISCRIMINATION IS
UNNECESSARY TO PROMOTE ANY LEGITIMATE STATE INTEREST, IT IS PLAINLY
UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION CLAUSE, AND CONGRESS HAS
AMPLE POWER TO FORBID IT UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT.  WE
WOULD UPHOLD SEC. 302 OF THE 1970 AMENDMENTS AS A LEGITIMATE EXERCISE
OF CONGRESSIONAL POWER. 

/1/  SECTION 202(A) OF THE AMENDMENTS EMBODIES A CONGRESSIONAL
FINDING THAT 

"THE IMPOSITION AND APPLICATION OF THE DURATIONAL RESIDENCY
REQUIREMENT AS A PRECONDITION TO VOTING FOR THE OFFICES OF PRESIDENT
AND VICE PRESIDENT, AND THE LACK OF SUFFICIENT OPPORTUNITIES FOR
ABSENTEE REGISTRATION AND ABSENTEE BALLOTING IN PRESIDENTIAL ELECTIONS-

        .          .          .          . 

"(2) DENIES OR ABRIDGES THE INHERENT CONSTITUTIONAL RIGHT OF
CITIZENS TO ENJOY THEIR FREE MOVEMENT ACROSS STATE LINES;

        .        .          .          . 

"(6) DOES NOT BEAR A REASONABLE RELATIONSHIP TO ANY COMPELLING STATE
INTEREST IN THE CONDUCT OF PRESIDENTIAL ELECTIONS." 

/2/  SECTION 301(A) OF THE AMENDMENT PROVIDES: 

"THE CONGRESS FINDS AND DECLARES THAT THE IMPOSITION AND APPLICATION
OF THE REQUIREMENT THAT A CITIZEN BE TWENTY-ONE YEARS OF AGE AS A
PRECONDITION TO VOTING IN ANY PRIMARY OR IN ANY ELECTION-- 

"(1) DENIES AND ABRIDGES THE INHERENT CONSTITUTIONAL RIGHTS OF
CITIZENS EIGHTEEN YEARS OF AGE BUT NOT YET TWENTY-ONE YEARS OF AGE TO
VOTE-- A PARTICULARLY UNFAIR TREATMENT OF SUCH CITIZENS IN VIEW OF THE
NATIONAL DEFENSE RESPONSIBILITIES IMPOSED UPON SUCH CITIZENS; 

"(2) HAS THE EFFECT OF DENYING TO CITIZENS EIGHTEEN YEARS OF AGE BUT
NOT YET TWENTY-ONE YEARS OF AGE THE DUE PROCESS AND EQUAL PROTECTION OF
THE LAWS THAT ARE GUARANTEED TO THEM UNDER THE FOURTEENTH AMENDMENT OF
THE CONSTITUTION; AND 

"(3) DOES NOT BEAR A REASONABLE RELATIONSHIP TO ANY COMPELLING STATE
INTEREST." 

/3/  ARIZONA CONSTITUTION, ART. 7, SEC. 2, LIMITS THE FRANCHISE TO
THOSE 21 YEARS OF AGE AND OLDER.  ARIZ. REV. STAT. ANN. SEC. 16-101
(SUPP. 1970) REQUIRES VOTERS TO BE ABLE TO READ THE FEDERAL
CONSTITUTION (IN ENGLISH), AND TO WRITE THEIR NAMES. 

/4/  IDAHO CONSTITUTION, ART. 6, SEC. 2, REQUIRES ALL VOTERS TO BE 21
YEARS OF AGE OR OLDER, AND REQUIRES 60 DAYS' RESIDENCE WITHIN THE STATE
AS A PRECONDITION TO VOTING IN PRESIDENTIAL ELECTIONS.  IDAHO CODE SEC.
34-408 (1963) FURTHER REQUIRES THAT 60-DAY RESIDENTS HAVE BEEN CITIZENS
OF ANOTHER STATE PRIOR TO THEIR REMOVAL TO IDAHO.  PROVISIONS FOR
ABSENTEE BALLOTING ARE CONTAINED, IN ID., SECS. 34-1101 TO 34-1125. 

/5/  SECTION 4(C) OF THE 1965 ACT, 42 U.S.C. 1973BC) (1964 ED.,
SUPP. V), DEFINES A "TEST OR DEVICE" AS "ANY REQUIREMENT THAT A PERSON
AS A PREREQUISITE FOR VOTING OR REGISTRATION FOR VOTING (1) DEMONSTRATE
THE ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY MATTER, (2)
DEMONSTRATE ANY EDUCATIONAL ACHIEVEMENT OR HIS KNOWLEDGE OR ANY
PARTICULAR SUBJECT, (3) POSSESS GOOD MORAL CHARACTER, OR (4) PROVE HIS
QUALIFICATIONS BY THE VOUCHER OF REGISTERED VOTERS OR MEMBERS OF ANY
OTHER CLASS." 

/6/  GASTON COUNTY WAS A SUIT BY THE COUNTY UNDER SEC. 4(A) OF THE
1965 ACT, 42 U.S.C. 1973BA) (1964 ED. SUPP. V), TO REINSTATE THE
COUNTY'S LITERACY TEST.  THECOUNTY WOULD HAVE BEEN ENTITLED TO DO SO
UPON DEMONSTRATION THAT, FOR THE PRECEDING FIVE YEARS, NO "TEST OR
DEVICE" HAD BEEN THERE USED FOR THE PURPOSE OR WITH THE EFFECT OF
ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR. 

/7/  WE THERE RESERVED ONLY THE QUESTION OF THE APPLICATION OF THE
1965 ACT TO SUSPEND LITERACY TESTS "IN THE FACE OF RADICALLY DISPARATE
EDUCATIONAL OR LITERACY ACHIEVEMENTS FOR WHICH A GOVERNMENT BORE NO
RESPONSIBILITY."  395 U.S.,AT 293 N. 8. 

/8/  HEARINGS ON AMENDMENTS TO THE VOTING RIGHTS ACT OF 1965 BEFORE
THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON
THE JUDICIARY, 91ST CONG., 1ST AND 2D SESS., 675 (1969-1970) (HEREAFTER
SENATE HEARINGS).  SCHOOLING OF INDIANS HAS FOR SOME TIME BEEN THE
RESPONSIBILITY OF THE FEDERAL GOVERNMENT.  SEE WARREN TRADING POST CO.
V. ARIZONA TAX COMMISSION, 380 U.S. 685, 690-691 (1965). 

/9/  E.G., SENATE HEARINGS 185-187; HEARINGS ON THE VOTING RIGHTS
ACT EXTENSION BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 91ST CONG., 1ST SESS., SER.  3, PP. 55-57, 223-225 (1969)
(HEREAFTER HOUSE HEARINGS). 

/10/  FOR EXAMPLE, 1960 CENSUS DATA INDICATE THAT FROM 1955 TO 1960,
4,388 BLACKS MOVED FROM SOUTHERN STATES TO ARIZONA, 74,804 TO
CALIFORNIA, AND 74,821 TO NEW YORK.  TABLE 100 IN 1 1960 CENSUS OF
POPULATION, PTS.  4, 6 AND 34. 

/11/  SENATE HEARINGS, 399; SEE ID., AT 400-407. 

/12/  SENATE HEARINGS 678.  TRIBAL CHAIRMAN NAKAI VIEWED ARIZONA'S
LITERACY TEST AS THE PRIMARY CAUSE OF THIS DISPARITY. 

/13/  THE STATES ARE PERMITTED, SHOULD THEY DESIRE, TO ADOPT
PRACTICES LESS RESTRICTIVE THAN THOSE PRESCRIBED BY THE 1970
AMENDMENTS.  SEC. 202(G). 

/14/  SEE N. 4, SUPRA. 

/15/  SEE THE OPINION OF MR. JUSTICE DOUGLAS, ANTE, AT 148-150. 

/16/  SEE SHAPIRO V. THOMPSON, 394 U.S., AT 630 AND N.8; UNITED
STATES V. GUEST, 383 U.S.,AT 757-758. 

/17/  SENATE HEARINGS 282. 

/18/  116 CONG.REC.  6991. 

/19/  IBID.  IDAHO CODE SECS. 34-1101, 34-1102, 34-1103 APPEAR TO
ALLOW APPLICATION TO BE MADE AT ANY TIME.  ID., SEC. 34-1121 ALLOWS
APPLICATION UP TO FIVE DAYS BEFORE THE ELECTION FOR PERSONS IN UNITED
STATES SERVICE.  THE BALLOT MAY BE RETURNED ANY TIME PRIOR TO NOON ON
ELECTION DAY, ID., SEC. 34-1105 (SUPP. 1969).  FINALLY, EFFECTIVE
JANUARY 1, 1971, APPLICATIONS MAY BE MADE UP TO 5 P.M. THE DAY BEFORE
THE ELECTION.  ID., SEC. 34-1002 (SUPP. 1970).  IN SUCH CIRCUMSTANCES,
THE ARGUMENT OF ADMINISTRATIVE IMPOSSIBILITY FROM THE VIEWPOINT OF
IDAHO SEEMS ALMOST CHIMERICAL. 

/20/  IDAHO, IN ADDITION, CLAIMS THAT ITS INTEREST IN SETTING
QUALIFICATIONS FOR VOTERS IN ITS OWN ELECTIONS SERVES, WITHOUT MORE, AS
A COMPELLING STATE INTEREST SUFFICIENT TO JUSTIFY THE CHALLENGED
EXCLUSION.  BUT THERE IS NO STATE INTEREST IN THE MERE EXERCISE OF
POWER; THE POWER MUST BE EXERCISED FOR SOME REASON.  THE ONLY REASON
ASSERTED BY IDAHO FOR THE EXERCISE OF ITS POWER IS THAT ALREADY
MENTIONED-- PROMITION OF INTELLIGENT AND RESPONSIBLE VOTING. 

/21/  116 CONG.REC.  6970 (LIBRARY OF CONGRESS, LEGISLATIVE
REFERENCE SERVICE SURVEY). 

/22/  IBID. 

/23/  NOR DOES THE CALIFORNIA STATUTE, CAL. WELF.  & INST'NS CODE
SEC. 602 (1966), NECESSARILY EVIDENCE A CONTRARY CONCLUSION. 
CALIFORNIA PERMITS ITS JUVENILE COURT TO WAIVE JURISDICTION OF PERSONS
OVER THE AGE OF 16 TO THE REGULAR CRIMINAL COURTS, AND STATE PRACTICE
APPEARS TO BE THAT VERY FEW IF ANY FELONY DEFENDANTS OVER THE AGE OF 18
ARE EVER TRIED AS JUVENILES.  R. BOCHES & J. GOLDFARB, CALIFORNIA
JUVENILE COURT PRACTICE 35-36 (1968).  THIS MAY WELL INDICATE THAT THE
CALIFORNIA STATUTE REFLECTS MERELY A LEGISLATIVE CONCLUSION THAT THE
SLIGHT BURDEN OF WAIVER HEARINGS IS OUTWEIGHED BY THE POSSIBILITY,
HOWEVER SLIGHT, THAT A VERY FEW INDIVIDUALS BETWEEN THE AGES OF 18 AND
21 MIGHT IN FACT BE MORE APPROPRIATELY TREATED AS JUVENILES.     /24/
116 CONG.REC.  6970. 

/25/  FOR EXAMPLE, IN CALIFORNIA, ANY WOMAN 18 YEARS OLD MAY MARRY
WITHOUT PARENTAL CONSENT, AND ANY MAN OF THAT AGE MAY MARRY WITH THE
CONSENT OF ONE PARENT.  CAL. CIV. CODE SEC. 4101 (1970).  ANY MARRIED
PERSON WHO HAS ATTAINED THE AGE OF 18 IS TREATED IN PRECISELY THE SAME
WAY AS ALL PERSONS OF THE AGE OF 21 AND OVER WITH REGARD TO ALL
PROVISIONS OF THE CIVIL CODE, PROBATE CODE, AND CODE OF CIVIL
PROCEDURE, AS WELL AS FOR THE PURPOSE OF MAKING CONTRACTS OR ENTERING
INTO ANY AGREEMENT REGARDING PROPERTY OR HIS ESTATE.  CAL. CIV. CODE
SEC. 25 (SUPP. 1970).  THE STATE LABOR DEPARTMENT TREATS MALES OF THE
AGE OF 18 AND OVER AS ADULTS.  CAL. LABOR CODE SECS. 1172, 3077
(1955).  PERSONS OF THE AGE OF 18 AND OVER MAY SERVE CIVIL PROCESS IN
THE STATE.  CAL. CIV. PROC. CODE SEC. 410 (SUPP. 1970). 

/26/  SOME STATES, OF COURSE, DO ATTEMPT TO CONDITION EXERCISE OF
THE FRANCHISE UPON THE ABILITY TO PASS A LITERACY TEST.  PRESUMABLY
SOME 18-YEAR-OLD ILLITERATES WILL BE LITERATE AT 21.  BUT IN THE LIGHT
OF THE FACT THAT 81 PER CENT OF THE DISENFRANCHISED CLASS ARE HIGH
SCHOOL GRADUATES, IT WOULD SEEM THAT THE NUMBER OF 18-YEAR-OLD
ILLITERATES WHO ARE LITERATE THREE YEARS LATER IS VANISHINGLY SMALL. 
SEE HEARINGS ON S.J. RES. 147 AND OTHERS BEFORE THE SUBCOMMITE ON
CONSTITUTIONAL AMENDMENTS OF THE SENATE COMMITTEE ON THE JUDICIARY,
91ST CONG., 2D SESS., 133 (1970) (SEN. GOLDWATER).  OF COURES, FOR
REASONS THAT APPLY AS WELL TO 18-YEAR-OLDS AS TO OTHERS, WE HAVE TODAY
UPHELD A NATIONWIDE SUSPENSION OF ALL LITERACY TESTS.  ANTE, AT 118. 
BUT IN ANY EVENT, THAT SOME 18-YEAR-OLDS MAY BE ILLITERATE IS HARDLY
SUFFICIENT REASON FOR DISENFRANCHISING THE ENTIRE CLASS.  SEE KRAMER V.
UNION SCHOOL DISTRICT, 395 U.S.,AT 632-633. 

/27/  EIGHTEEN-YEAR-OLDS AS A CLASS ARE BETTER EDUCATED THAN SOME OF
THEIR ELDERS.  THE MEDIAN NUMBER OF SCHOOL YEARS COMPLETED BY 18- AND
19-YEAR-OLDS TWO YEARS AGO WAS 12.2; IT WAS 8.8 FOR PERSONS 65 TO 74. 
BUREAU OF THE CENSUS, EDUCATIONAL ATTAINMENT, TABLE 1 (CURRENT
POPULATION REPORTS, SERIES P-20, NO. 182) (1969). 

/28/  HAWAII AND ALASKA HAVE, SINCE THEIR ADMISSION TO THE UNION IN
1959, ALLOWED THE VOTE TO 19-YEAR-OLDS (ALASKA) AND 20-YEAR-OLDS
(HAWAII). 

/29/  SEE, E.G., 116 CONG.REC.  6433-6434 (SEN. COOK), 6929-6930
(SENS.  TALMADGE AND ERVIN); SENATE HEARINGS 343 (GOV. MADDOX). 

/30/  THE STATE OF FACTS NECESSARY TO JUSTIFY A LEGISLATIVE
DISCRIMINATION WILL OF COURSE VARY WITH THE NATURE OF THE
DISCRIMINATION INVOLVED.  WHEN WE HAVE BEEN FACED WITH STATUTES
INVOLVING NOTHING MORE THAN STATE REGULATION OF BUSINESS PRACTICES, WE
HAVE OFTEN FOUND MERE ADMINISTRATIVE CONVENIENCE SUFFICIENT TO JUSTIFY
THE DISCRIMINATION.  E.G., WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483,
487 488-489 (1955).  BUT WHEN A DISCRIMINATION HAS THE EFFECT OF
DENYING OR INHIBITING THE EXERCISE OF FUNDAMENTAL CONSTITUTIONAL
RIGHTS, WE HAVE REQUIRED THATIT BE NOT MERELY CONVENIENT, BUT
NECESSARY.  KRAMER V. UNION SCHOOL DISTRICT, 395 U.S.,AT 637;
CARRINGTON V. RASH, 380 U.S.,AT 96; SEE UNITED STATES V. O'BRIEN, 391
U.S. 367, 377 (1968); UNITED STATES V. JACKSON, 390 U.S. 570, 582-583
(1968).  AND WE HAVE REQUIRED AS WELL THAT IT BE NECESSARY TO PROMOTE
NOT MERELY A CONSTITUTIONALLY PERMISSIBLE STATE INTEREST, BUT A STATE
INTEREST OF SUBSTANTIAL IMPORTANCE.  KRAMER V. UNION SCHOOL DISTRICT,
SUPRA; CARRINGTON V. RASH, SUPRA; SHELTON V. TUCKER, 365 U.S. 479, 487
490 (1960); SEE UNITED STATES V. O'BRIEN SUPRA. 

/31/  AS WE EMPHASIZED IN KATZENBACH V. MORGAN, SUPRA, "SEC.  5 DOES
NOT GRANT CONGRESS POWER TO . . . ENACT 'STATUTES SO AS IN EFFECT TO
DILUTE EQUAL PROTECTION AND DUE PROCESS DECISIONS OF THIS COURT.'"  384
U.S.,AT 651 N. 10.  AS INDICATED ABOVE, A DECISION OF THIS COURT
STRIKING DOWN A STATE STATUTE EXPRESSES, AMONG OTHER THINGS, OUR
CONCLUSION THAT THE LEGISLATIVE FINDINGS UPON WHICH THE STATUTE IS
BASED ARE SO FAR WRONG AS TO BE UNREASONABLE.  UNLESS CONGRESS WERE TO
UNEARTH NEW EVIDENCE IN ITS INVESTIGATION, ITS IDENTICAL FINDINGS ON
THE IDENTICAL ISSUE WOULD BE NO MORE REASONABLE THAN THOSE OF THE STATE
LEGISLATURE. 

/32/  BRIEF FOR THE STATE OF OREGON 10-13; BRIEF FOR THE STATE OF
TEXAS 10-12; BRIEF FOR THE STATE OF ARIZONA 19; BRIEF FOR THE STATE OF
IDAHO 22, 28-30. 

/33/  BRIEF AMICUS CURIAE FOR THE COMMONWEALTH OF VIRGINIA 13-22;
SEE BRIEF AMICUS CURIAE FOR THE STATE OF MISSISSIPPI 7-11. 

/34/  INDEED, SINCE THE FIRST AMENDMENT IS APPLICABLE TO THE STATES
ONLY THROUGH THE FOURTEENTH, OUR BROTHER HARLAN'S VIEW WOULD APPEAR TO
ALLOW A STATE TO EXCLUDE ANY UNPOPULAR GROUP FROM THE POLITICAL PROCESS
SOLELY UPON THE BASIS OF ITS POLITICAL OPINIONS. 

/35/  REPUBLICANS EXPLICITLY LOOKED UPON THE FOURTEENTH AMENDMENT AS
A POLITICAL PLATFORM.  SEE 2 F. FESSENDEN, LIFE AND PUBLIC SERVICES OF
WILLIAM PITT FESSENDEN 62 (1970); B. KENDRICK, THE JOURNAL OF THE JOINT
COMMITTEE OF FIFTEEN ON RECONSTRUCTION 302 (1914).  SEE ALSO INFRA, AT
262. 

/36/  THE LANGUAGE APPEARS EARLIER IN ART. IV, SEC. 2. 

/37/  AS THE STATEMENTS OF BINGHAM AND HOWARD IN THE TEXT INDICATE,
THE FRAMERS OF THE AMENDMENT WERE NOT ALWAYS CLEAR WHETHER THEY
UNDERSTOOD IT MERELY AS A GRANT OF POWER TO CONGRESS OR WHETHER THEY
THOUGHT, IN ADDITION, THAT IT WOULD CONFER POWER UPON THE COURTS, WHICH
THE COURTS WOULD USE TO ACHIEVE EQUALITY OF RIGHTS.  SINCE SEC. 5 IS
CLEAR IN ITS GRANT OF POWER TO CONGRESS AND WE HAVE CONSISTENTLY HELD
THAT THE AMENDMENT GRANTS POWER TO THE COURTS, THIS ISSUE IS OF
ACADEMIC INTEREST ONLY. 

/38/  ACCORDING TO PAUL V. VIRGINIA, 8 WALL.  168, 180 (1869), THE
PRIVILEGES AND IMMUNITIES CLAUSE IN ART. 4, SEC. 2, SECURED TO CITIZENS
"IN OTHER STATES THE EQUAL PROTECTION OF THEIR LAWS." 

/39/  SENATOR STEWART'S STATEMENT REGARDING THE TWO-THIRDS
REQUIREMENT APPEARS TO REFER TO SEC. 3 OF THE FOURTEENTH AMENDMENT,
WHICH REQUIRES SUCH A MAJORITY FOR LEGISLATION GRANTING AMNESTY TO
FORMER CONFEDERATE LEADERS. 

/40/  THIS COURT HAD TAKEN SUCH AN APPROACH IN CONNER V. ELLIOTT, 18
HOW.  591 (1856). 

/41/  IRONICALLY, THE SAME DISTINCTION BETWEEN "POLITICAL" AND OTHER
RIGHTS WAS DRAWN BY THIS COURT IN PLESSY V. FERGUSON, 163 U.S. 537, 545
546 (1896).  BUT THE COURT THERE CONCLUDED, DIRECTLY CONTRARY TO OUR
BROTHER HARLAN'S POSITION, THAT THE FOURTEENTH AMENDMENT APPLIED TO
"POLITICAL" RIGHTS AND TO THOSE RIGHTS ONLY. 

/42/  AS THADDEUS STEVENS HAD POINTED OUT IN URGING PASSAGE OF THE
FOURTEENTH AMENDMENT DESPITE THE FACT THAT, HE FELT, SOME OF ITS
GUARANTEES COULD BE ENFORCED BY MERE LEGISLATIVE ENACTMENT, "A LAW IS
REPEALABLE BY A MAJORITY."  GLOBE 2459. 

/43/  RADICAL DISENCHANTMENT WITH DECISIONS OF THIS COURT HAD LED,
PRIOR TO THE FIFTEENTH AMENDMENT, TO THE ACT OF MARCH 27, 1868, 15
STAT. 44, WITHDRAWING OUR APPELLATE JURISDICTION OVER CERTAIN HABEAS
CORPUS CASES.  SEE EX PARTE MCCARDLE, 7 WALL.  506, 508, 514-515
(1869). 

/44/  BREEDLOVE HAS BEEN OVERRULED BY HARPER V. VIRGINIA BOARD OF
ELECTIONS, 383 U.S. 663, 669 (1966). 

/45/  FOR A FULL COLLECTION OF THE RELEVANT MATERIALS, SEE NOTE,
LEGISLATIVE HISTORY OF TITLE III OF THE VOTING RIGHTS ACT OF 1970, 8
HARV.J.LEGIS.  123 (1970). 

/46/  SEE 88 CONG.REC.  8312, 8316 (1942). 

/47/  HEARINGS ON S. J. RES. 8, 14, AND 78 BEFORE THE SUBCOMMITTEE
ON CONSTITUTIONAL AMENDMENTS OF THE SENATE COMMITTEE ON THE JUDICIARY,
90TH CONG., 2D SESS. (1968); HEARINGS ON S. J. RES. 147 AND OTHERS
BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS OF THE SENATE
COMMITTEE ON THE JUDICIARY, 91ST CONG., 2D SESS. (1970) (HEREAFTER 1970
HEARINGS). 

/48/ SUPRA, AT 242-246. 

/49/  SEE 116 CONG.REC.  6955; JAMES, THE AGE OF MAJORITY, 4
AM.J.LEGAL HIST. 22 (1960); REPORT OF THE COMMITTEE ON THE AGE OF
MAJORITY PRESENTED TO THE ENGLISH PARLIAMENT 21 (1967). 

/50/  116 CONG.REC.  6435. 

/51/  16 DEPARTMENT OF LABOR, BUREAU OF LABOR STATISTICS, EMPLOYMENT
AND EARNINGS, TABLE A-3 (JUNE 1970). 

/52/  SEE ALSO SENATE HEARINGS 323 (SEN. KENNEDY), 116 CONG.REC. 
5950-5951 (SEN. MANSFIELD); 6433 (SEN. COOK).  SEE GENERALLY NOTE,
SUPRA, N. 45, AT 134-148. 

/53/  1970 HEARINGS AT 223.  DR. W. WALTER MENNINGER, A
PSYCHIATRIST, AND DR. S. I. HAYAKAWA AGREED.  ID., AT 23, 36. 

/54/  E.G., 116 CONG.REC.  5950-5951 (SEN. MANSFIELD); 6433-6434
(SEN. COOK); 6434-6437 (SEN. GOLDWATER); 6929-6930 (SEN. TALMADGE,
JOINED BY SEN. ERVIN); 6950-5951 (SEN. TYDINGS). 

/55/  116 CONG.REC.  6929. 

MR. JUSTICE STEWART, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACKMUN JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

IN THESE CASES WE DEAL WITH THE CONSTITUTIONAL VALIDITY OF THREE
PROVISIONS OF THE VOTING RIGHTS ACT AMENDMENTS OF 1970.  CONGRESS
UNDERTOOK IN THESE PROVISIONS:  (A) TO ABOLISH FOR A FIVE-YEAR PERIOD
ALL LITERACY TESTS AND SIMILAR VOTING ELIGIBILITY REQUIREMENTS IMPOSED
BY ANY STATE IN THE UNION (SEC. 201); (B) TO REMOVE THE RESTRICTIONS
IMPOSED BY STATE DURATIONAL RESIDENCY REQUIREMENTS UPON VOTERS IN
PRESIDENTIAL ELECTIONS (SEC. 202); AND (C) TO REDUCE THE VOTING AGE TO
A MINIMUN OF 18 YEARS FOR ALL VOTERS IN ALL ELECTIONS THROUGHOUT THE
NATION (SEC. 302).  THE COURT TODAY UPHOLDS SEC. 201'S NATIONWIDE
LITERACY TEST BAN AND SEC. 202'S ELIMINATION OF STATE DURATIONAL
RESIDENCY RESTRICTIONS IN PRESIDENTIAL ELECTIONS.  SECTION 302'S
EXTENSION OF THE FRANCHISE TO 18-YEAR-OLD VOTERS IS (BY VIRTUE OF THE
OPINION OF MR. JUSTICE BLACK ANNOUNCING THE JUDGMENTS OF THE COURT)
UPHELD AS APPLIED TO FEDERAL ELECTIONS.  I AGREE WITH THE COURT IN
SUSTAINING THE CONGRESSIONAL BAN ON STATE LITERACY TESTS, FOR
SUBSTANTIALLY THE SAME REASONS RELIED UPON BY MR. JUSTICE BLACK.  I
ALSO AGREE THAT THE ACTION OF CONGRESS IN REMOVING THE RESTRICTIONS OF
STATE RESIDENCY REQUIREMENTS IN PRESIDENTIAL ELECTIONS IS
CONSTITUTIONALLY VALID, BUT I BASE THIS JUDGMENT UPON GROUNDS QUITE
DIFFERENT FROM THOSE RELIED UPON BY MR. JUSTICE BLACK.  AND, FINALLY, I
DISAGREE WITH THE COURT'S CONCLUSION THAT CONGRESS COULD
CONSTITUTIONALLY REDUCE THE VOTING AGE TO 18 FOR FEDERAL ELECTIONS,
SINCE I AM CONVINCED THAT CONGRESS WAS WHOLLY WITHOUT CONSTITUTIONAL
POWER TO ALTER-- FOR THE PURPOSE OF ANY ELECTIONS-- THE VOTING AGE
QUALIFICATIONS NOW DETERMINED BY THE SEVERAL STATES. 

BEFORE TURNING TO A DISCUSSION OF MY VIEWS, IT SEEMS APPROPRIATE TO
STATE THAT WE ARE NOT CALLED UPON IN THESE CASES TO EVALUATE OR
APPRAISE THE WISDOM OF ABOLISHING LITERACY TESTS, OF ALTERING STATE
RESIDENCY REQUIREMENTS, OR OF REDUCING THE VOTING AGE TO 18.  WHATEVER
WE MAY THINK AS CITIZENS, OUR SINGLE DUTY AS JUDGES IS TO DETERMINE
WHETHER THE LEGISLATION BEFORE US WAS WITHIN THE CONSTITUTIONAL POWER
OF CONGRESS TO ENACT.  I FIND IT NECESSARY TO STATE SO ELEMENTARY A
PROPOSITION ONLY BECAUSE CERTAIN OF THE SEPARATE OPINIONS FILED TODAY
CONTAIN MANY PAGES DEVOTED TO A DEMONSTRATION OF HOW BENEFICENT ARE THE
GOALS OF THIS LEGISLATION, PARTICULARLY THE EXTENSION OF THE ELECTORAL
FRANCHISE TO YOUNG MEN AND WOMEN OF 18.  A CASUAL READER COULD EASILY
GET THE IMPRESSION THAT WHAT WE ARE BEING ASKED IN THESE CASES IS
WHETHER OR NOT WE THINK ALLOWING PEOPLE 18 YEARS OLD TO VOTE IS A GOOD
IDEA.  NOTHING COULD BE WIDER OF THE MARK.  MY BROTHERS TO THE
CONTRARY, THERE IS NO QUESTION HERE AS TO THE "JUDGMENT" OF CONGRESS;
THERE ARE QUESTIONS ONLY OF CONGRESS' CONSTITUTIONAL POWER. 

        I 

I CONCUR IN PART II OF MR. JUSTICE BLACK'S OPINION, WHICH HOLDS THAT
THE LITERACY TEST BAN OF SEC. 201 OF THE 1970 AMENDMENTS IS
CONSTITUTIONAL UNDER THE ENFORCEMENT CLAUSE OF THE FIFTEENTH
AMENDMENT.  OUR DECISIONS ESTABLISH THAT THE FIFTEENTH AMENDMENT
"NULLIFIES SOPHISTICATED AS WELL AS SIMPLE-MINDED MODES OF
DISCRIMINATION.  IT HITS ONEROUS PROCEDURAL REQUIREMENTS WHICH
EFFECTIVELY HANDICAP EXERCISE OF THE FRANCHISE BY THE COLORED RACE
ALTHOUGH THE ABSTRACT RIGHT TO VOTE MAY REMAIN UNRESTRICTED AS TO
RACE."  LANE V. WILSON, 307 U.S. 268, 275; CF. GOMILLION V. LIGHTFOOT,
364 U.S. 339.  BECAUSE LITERACY AND ILLITERACY ARE SEEMINGLY NEUTRAL
WITH RESPECT TO RACE, CREED, COLOR, AND SEX, WE UPHELD A LITERACY
REQUIREMENT AGAINST A CLAIM THAT IT WAS INVALID ON ITS FACE UNDER THE
FIFTEENTH AMENDMENT.  LASSITER V. NORTHAMPTON ELECTION BOARD, 360 U.S.
45.  BUT IN GASTON COUNTY V. UNITED STATES, 395 U.S. 285, WE MADE IT
CLEAR THAT CONGRESS HAS AMPLE AUTHORITY UNDER SEC. 2 OF THE FIFTEENTH
AMENDMENT TO DETERMINE THAT LITERACY REQUIREMENTS WORK UNFAIRLY AGAINST
NEGROES IN PRACTICE BECAUSE THEY HANDICAP THOSE NEGROES WHO HABE BEEN
DEPRIVED OF THE EDUCATIONAL OPPORTUNITIES AVAILABLE TO WHITE CITIZENS. 
WE CONSTRUED THE 1965 VOTING RIGHTS ACT IN LIGHT OF THE REPORT OF THE
SENATE JUDICIARY COMMITTEE WHICH SAID, "THE EDUCATIONAL DIFFERENCES
BETWEEN WHITES AND NEGROES IN THE AREAS TO BE COVERED BY THE
PROHIBITIONS-- DIFFERENCES WHICH ARE REFLECTED IN THE RECORD BEFORE THE
COMMITTEE-- WOULD MEAN THAT EQUAL APPLICATION OF THE TESTS WOULD
ABRIDGE 15TH AMENDMENT RIGHTS."  S. REP. NO. 162, PT. 3, 89TH CONG.,
1ST SESS., 16.  SEE ALSO SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301,
308-315. 

CONGRESS HAS NOW UNDERTAKEN TO EXTEND THE BAN ON LITERACY TESTS TO
THE WHOLE NATION.  I SEE NO CONSTITUTIONAL IMPEDIMENT TO ITS DOING SO.
NATIONWIDE APPLICATION REDUCES THE DANGER THAT FEDERAL INTERVENTION
WILL BE PERCEIVED AS UNREASONABLE DISCRIMINATION AGAINST PARTICULAR
STATES OR PARTICULAR REGIONS OF THE COUNTRY.  THIS IN TURN INCREASES
THE LIKELIHOOD OF VOLUNTARY COMPLIANCE WITH THE LETTER AND SPIRIT OF
FEDERAL LAW.  NATIONWIDE APPLICATION FACILITATES THE FREE MOVEMENT OF
CITIZENS FROM ONE STATE TO ANOTHER, SINCE IT ELIMINATES THE PROSPECT
THAT A CHANGE IN RESIDENCE WILL MEAN THE LOSS OF A FEDERALLY PROTECTED
RIGHT.  NATIONAWIDE APPLICATION AVOIDS THE OFTEN DIFFICULT TASK OF
DRAWING A LINE BETWEEN THOSE STATES WHERE A PROBLEM IS PRESSING ENOUGH
TO WARRANT FEDERAL INTERVENTION AND THOSE WHERE IT IS NOT.  SUCH A LINE
MAY WELL APPEAR DISCRIMINATORY TO THOSE WHO THINK THEMSELVES ON THE
WRONG SIDE OF IT.  MOREOVER THE APPLICATION OF THE LINE TO PARTICULAR
STATES CAN ENTAIL A SUBSTANTIAL BURDEN ON ADMINISTRATIVE AND JUDICIARY
MACHINERY AND A DIVERSION OF ENFORCEMENT RESOURCES.  FINALLY,
NATIONWIDE APPLICATION MAY BE REASONABLY THOUGHT APPROPRIATE WHEN
CONGRESS ACTS AGAINST AN EVIL SUCH AS RACIAL DISCRIMINATION WHICH IN
VARYING DEGREES MANIFESTS ITSELF IN EVERY PART OF THE COUNTRY.  A
REMEDY FOR RACIAL DISCRIMINATION WHICH APPLIES IN ALL THE STATES
UNDERLINES AN AWARENESS THAT THE PROBLEM IS A NATIONAL ONE AND REFLECTS
A NATIONAL COMMITMENT TO ITS SOLUTION. 

BECAUSE THE JUSTIFICATION FOR EXTENDING THE BAN ON LITERACY TESTS TO
THE ENTIRE NATION NEED NOT TURN ON WHETHER LITERACY TESTS UNFAIRLY
DISCRIMINATE AGAINST NEGROES IN EVERY STATE IN THE UNION, CONGRESS WAS
NOT REQUIRED TO MAKE STATE-BY-STATE FINDINGS CONCERNING EITHER THE
EQUA6IFY OF EDUCATIONAL OPPORTUNITY OR ACTUAL IMPACT OF LITERACY
REQUIREMENTS ON THE NEGRO CITIZEN'S ACCESS TO THE BALLOT BOX.  IN THE
INTERESTS OF UNIFORMITY, CONGRESS MAY PAINT WITH A MUCH BROADER BRUSH
THAN MAY THIS COURT, WHICH MUST CONFINE ITSELF TO THE JUDICIAL FUNCTION
OF DECIDING INDIVIDUAL CASES AND CONTROVERSIES UPON INDIVIDUAL
RECORDS.  CF. LASSITER V. NORTHAMPTON ELECTION BOARD, SUPRA.  THE
FINDINGS THAT CONGRESS MADE WHEN IT ENACTED THE VOTING RIGHTS ACT OF
1965 WOULD HAVE SUPPORTED A NATIONWIDE BAN ON LITERACY TESTS.  INSTEAD,
AT THAT TIME "CONGRESS CHOSE TO LIMIT ITS ATTENTION TO THE GEOGRAPHIC
AREAS WHERE IMMEDIATE ACTION SEEMED NECESSARY."  SOUTH CAROLINA V.
KATZENBACH, 383 U.S.,AT 328.  EXPERIENCE GAINED UNDER THE 1965 ACT HAS
NOW LED CONGRESS TO CONCLUDE THAT IT SOULD GO THE WHOLE DISTANCE.  THIS
APPROACH TO THE PROBLEM IS A RATIONAL ONE; CONSEQUENTLY, IT IS WITHIN
THE CONSTITUTIONAL POWER OF CONGRESS UNDER SEC. 2 OF THE FIFTEENTH
AMENDMENT. 

        II 

COMPREHENSIVE PROVISION AIMED AT INSURING THAT A CITIZEN WILL NOT BE
DEPRIVED OF THE OPPORTUNITY TO VOTE FOR THE OFFICES OF PRESIDENT AND
VICE PRESIDENT BECAUSE OF A CHANGE OF RESIDENCE.  THOSE WHO TAKE UP A
NEW RESIDENCE MORE THAN 30 DAYS BEFORE A PRESIDENTIAL ELECTION ARE
GUARANTEED THE RIGHT TO REGISTER AND VOTE IN THE STATE TO WHICH THEY
HAVE MOVED NOTWITHSTANDING ANY DURATIONAL RESIDENCY REQUIREMENT IMPOSED
BY STATE LAW, PROVIDED, OF COURSE, THAT THEY ARE OTHERWISE QUALIFIED TO
VOTE.  THOSE WHO TAKE UP A NEW RESIDENCE LESS THAN 30 DAYS BEFORE A
PRESIDENTIAL ELECTION ARE GUARANTEED THE RIGHT TO VOTE, EITHER IN
PERSON OR BY ABSENTEE BALLOT, IN THE STATE FROM WHICH THEY HAVE MOVED,
PROVIDED THAT THEY SATISFIED, AS OF THE DATE OF THEIR CHANGE OF
RESIDENCE, THE REQUIREMENTS TO VOTE IN THAT STATE. 

   A 

CONGRESS, IN MY VIEW, HAS THE POWER UNDER THE CONSTITUTION TO
ERADICATE POLITICAL AND CIVIL DISABILITIES THAT ARISE BY OPERATION OF
STATE LAW FOLLOWING A CHANGE IN RESIDENCE FROM ONE STATE TO ANOTHER. 
FREEDOM TO TRAVEL FROM STATE TO STATE-- FREEDOM TO ENTER AND ABIDE IN
ANY STATE IN THE UNION-- IS A PRIVILEGE OF THE UNITED STATES
CITIZENSHIP.  SHAPIRO V. THOMPSON, 394 U.S. 618; UNITED STATES V.
GUEST, 383 U.S. 745, 757-760; TRUAX V. RAICH, 239 U.S. 33, 39; TWINING
V. NEW JERSEY, 211 U.S. 78, 97; CRANDALL V. NEVADA, 6 WALL.  ET.
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. 
. . . "  IN DISCUSSING THE PRIVILEGES OF CITIZENS OF THE UNITED STATES
WITHIN THE MEANING OF SEC. 1, MR. JUSTICE MILLER WROTE FOR THE COURT IN
THE SLAUGHTER-HOUSE CASES: 

"ONE OF THESE PRIVILEGES IS CONFERRED BY THE VERY ARTICLE UNDER
CONSIDERATION.  IT IS THAT A CITIZEN OF THE UNITED STATES CAN, OF HIS
OWN VOLITION, BECOME A CITIZEN OF ANY STATE OF THE UNION BY A BONA FIDE
RESIDENCE THEREIN, WITH THE SAME RIGHTS AS OTHER CITIZENS OF THAT
STATE."  16 WALL.  36, 80. 

ALTHOUGH SEC. 5 OF THE FOURTEENTH AMENDMENT CONFERS ON CONGRESS THE
"POWER TO ENFORCE, BY APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS
ARTICLE," THIS COURT HAS SUSTAINED THE POWER OF CONGRESS TO PROTECT AND
FACILITATE THE EXERCISE OF PRIVILEGES OF UNITED STATES CITIZENSHIP
WITHOUT REFERENCE TO SEC. 5.  UNITED STATES V. GUEST, 383 U.S.,AT 757
760; UNITED STATES V. CLASSIC, 313 U.S. 299; BURROUGHTS V. UNITED
STATES, 290 U.S. 534.  THESE CASES AND OTHERS ESTABLISH THAT CONGRESS
BRINGS TO THE PROTECTION AND FACILITATION OF THE EXERCISE OF PRIVILEGES
OF UNITED STATES CITIZENSHIP ALL OF ITS POWER UNDER THE NECESSARY AND
PROPER CLAUSE.  CONSEQUENTLY, AS AGAINST THE RESERVED POWER OF THE
STATES, IT IS ENOUGH THAT THE END TO WHICH CONGRESS HAS ACTED BE ONE
LEGITIMATELY WITHIN ITS POWER AND THAT THERE BE A RATIONAL BASIS FOR
THE MEASURES CHOSEN TO ACHIEVE THAT END.  MCCULLOCH V. MARYLAND, 4
WHEAT.  316, 421. 

IN THE LIGHT OF THESE CONSIDERATIONS, SEC. 202 PRESENTS NO
DIFFICULTY.  CONGRESS COULD RATIONALLY CONCLUDE THAT THE IMPOSITION OF
DURATIONAL RESIDENCY REQUIREMENTS UNREASONABLY BURDENS AND SANCTIONS
THE PRIVILEGE OF TAKING UP RESIDENCE IN ANOTHER STATE.  THE OBJECTIVE
OF SEC. 202 IS CLEARLY A LEGITIMATE ONE.  FEDERAL ACTION IS REQUIRED IF
THE PRIVILEGE TO CHANGE RESIDENCE IS NOT TO BE UNDERCUT BY PAROCHIAL
LOCAL SANCTIONS.  NO STATE COULD UNDERTAKE TO GUARANTEE THIS PRIVILEGE
TO ITS CITIZENS.  AT MOST A SINGLE STATE COULD TAKE STEPS TO RESOLVE
THAT ITS OWN LAWS WOULD NOT UNREASONABLY DISCRIMINATE AGAINST THE NEWLY
ARRIVED RESIDENT.  EVEN THIS RESOLVE MIGHT NOT REMAIN FIRM IN THE FACE
OF DISCRIMINATIONS PERCEIVED AS UNFAIR AGAINST THOSE OF ITS OWN
CITIZNES WHO MOVED TO OTHER STATES.  THUS, THE PROBLEM COULD NOT BE
WHOLLY SOLVED BY A SINGLE STATE, OR EVEN BY SEVERAL STATES, SINCE EVERY
STATE OF NEW RESIDENCE AND EVERY STATE OF PRIOR RESIDENCE WOULD HAVE A
NECESSARY ROLE TO PLAY.  IN THE ABSENCE OF A UNANIMOUS INTERSTATE
COMPACT, THE PROBLEM COULD ONLY BE SOLVED BY CONGRESS.  QUITE CLEARLY,
THEN, CONGRESS HAS ACTED TO PROTECT A CONSTITUTIONAL PRIVILEGE THAT
FINDS ITS PROTECTION IN THE FEDERAL GOVERNMENT AND IS NATIONAL IN
CHARACTER.  SLAUGHTER-HOUSE CASES, 16 WALL.,AT 79. 

B 

BUT EVEN THOUGH GENERAL CONSTITUTIONAL POWER CLEARLY EXISTS,
CONGRESS MAY NOT OVERSTEP THE LETTER OR SPIRIT OF ANY CONSTITUTIONAL
RESTRICTION IN THE EXERCISE OF THAT POWER.  FOR EXAMPLE, CONGRESS
CLEARLY HAS POWER TO REGULATE INTERSTATE COMMERCE, BUT IT MAY NOT, IN
THE EXERCISE OF THAT POWER, IMPINGE UPON THE GUARANTEES OF THE BILL OF
RIGHTS.  I HAVE CONCLUDED THAT, WHILE SEC. 202 APPLIES ONLY TO
PRESIDENTIAL ELECTIONS, NOTHING IN THE CONSTITUTION PREVENTS CONGRESS
FROM PROTECTING THOSE WHO HAVE MOVED FROM ONE STATE TO ANOTHER FROM
DISENFRANCHISEMENT IN ANY FEDERAL ELECTION, WHETHER CONGRESSIONAL OR
PRESIDENTIAL. 

THE CONSTITUTION WITHHOLDS FROM CONGRESS ANY GENERAL AUTHORITY TO
CHANGE BY LEGISLATION THE QUALIFICATIONS FOR VOTERS IN FEDERAL
ELECTIONS.  THE MEANING OF THE APPLICABLE CONSTITUTIONAL PROVISIONS IS
PERFECTLY PLAIN.  ARTICLE I, SEC. 2, AND THE SEVENTEENTH AMENDMENT
PRESCRIBE THE QUALIFICATIONS FOR VOTERS IN ELECTIONS TO CHOOSE SENATORS
AND REPRESENTATIVES:  THEY "SHALL HAVE THE QUALIFICATIONS REQUISITE FOR
ELECTORS OF THE MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE."  THE
CONSTITUTION THUS ADOPTS AS THE FEDERAL STANDARD THE STANDARD WHICH
EACH STATE HAS CHOSEN FOR ITSELF.  EX PARTE YARBROUGH, 110 U.S. 651,
663; WILEY V. SINKLER, 179 U.S. 58, 64.  ACCORDINGLY, A STATE LAW THAT
PURPORTED TO ESTABLISH DISTINCT QUALIFICATIONS FOR CONGRESSIONAL
ELECTIONS WOULD BE INVALID AS REPUGNANT TO ART. I, SEC. 2, AND THE
SEVENTEENTH AMENDMENT.  BY THE SAME TOKEN, IT CANNOT BE GAINSAID THAT
FEDERAL LEGISLATION THAT HAD NO OBJECTIVE OTHER THAN TO ALTER THE
QUALIFICATIONS TO VOTE IN CONGRESSIONAL ELECTIONS WOULD BE INVALID FOR
THE SAME REASONS.  WHAT THE CONSTITUTION HAS FIXED MAY NOT BE CHANGED
EXCEPT BY CONSTITUTIONAL AMENDMENT. 

CONTRARY TO THE SUBMISSION OF MY BROTHER BLACK, ART. I, SEC. 4, DOES
NOT CREATE IN THE FEDERAL LEGISLATURE THE POWER TO ALTER THE
CONSTITUTIONALLY ESTABLISHED QUALIFICATIONS TO VOTE IN CONGRESSIONAL
ELECTIONS.  THAT SECTION PROVIDES THAT THE LEGISLATURES IN EACH STATE
SHALL PRESCRIBE THE "TIMES, PLACES, AND MANNER OF HOLDING ELECTIONS FOR
SENATORS AND REPRESENTATIVES," BUT RESERVES IN CONGRESS THE POWER TO
"MAKE OR ALTER SUCH REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING
SENATORS."  THE "MANNER" OF HOLDING ELECTIONS CAN HARDLY BE READ TO
MEAN THE QUALIFICATIONS FOR VOTERS, WHEN IT IS REMEMBERED THAT SEC. 2
OF THE SAME ART. I EXPLICITLY SPEAKS OF THE "QUALIFICATIONS" FOR VOTERS
IN ELECTIONS TO CHOOSE REPRESENTATIVES.  IT IS PLAIN, IN SHORT, THAT
WHEN THE FRAMERS MEANT QUALIFICATIONS THEY SAID "QUALIFICATIONS."  THAT
WORD DOES NOT APPEAR IN ART. I, SEC. 4.  MOREOVER, SEC. 4 DOES NOT GIVE
CONGRESS THE POWER TO DO ANYTHING THAT A STATE MIGHT NOT HAVE DONE,
AND, AS POINTED OUT ABOVE, NO STATE MAY ESTABLISH DISTINCT
QUALIFICATIONS FOR CONGRESSIONAL ELECTIONS.  THE STATES, OF COURSE, ARE
FREE TO PASS SUCH LAWS AS ARE NECESSARY TO ASSURE FAIR ELECTIONS. 
CONGRESSIONAL POWER UNDER SEC. 4 IS EQUALLY BROAD WITH RESPECT TO
CONGRESSIONAL ELECTIONS.  UNITED STATES V. CLASSIC, 313 U.S. 299.  BUT
THE STATES ARE NOT FREE TO PRESCRIBE QUALIFICATIONS FOR VOTERS IN
FEDERAL ELECTIONS WHICH DIFFER FROM THOSE PRESCRIBED FOR THE MOST
NUMEROUS BRANCH OF THE STATE LEGISLATURE.  AND THE POWER OF CONGRESS TO
DO SO CANNOT, THEREFORE, BE FOUND IN ART. I, SEC. 4. 

THIS VIEW IS CONFIRMED BY EXTRINSIC EVIDENCE OF THE INTENT OF THE
FRAMERS OF THE CONSTITUTION.  AN EARLY DRAFT OF THE CONSTITUTION
PROVIDED THAT THE STATES SHOULD FIX THE QUALIFICATIONS OF VOTERS IN
CONGRESSIONAL ELECTIONS SUBJECT TO THE PROVISO THAT THESE
QUALIFICATIONS MIGHT "AT ANY TIME BE ALTERED AND SUPERSEDED BY THE
LEGISLATURE OF THE UNITED STATES."  /1/  THE RECORDS OF THE COMMITTEE
ON DETAIL SHOW THAT IT WAS DECIDED TO STRIKE THE PROVISION GRANTING TO
CONGRESS THE AUTHORITY TO SET VOTING QUALIFICATIONS AND TO ADD IN ITS
STEAD A CLAUSE MAKING THE QUALIFICATIONS "THE SAME FROM TIME TO TIME AS
THOSE OF THE ELECTORS, IN THE SEVERAL STATES, OF THE MOST NUMEROUS
BRANCH OF THEIR OWN LEGISLATURES."  /2/  THE PROPOSED DRAFT REPORTED BY
THE COMMITTEE ON DETAIL TO THE CONVENTION INCLUDED THE FOLLOWING: 

"THE QUALIFICATIONS OF THE ELECTORS SHALL BE THE SAME, FROM TIME TO
TIME, AS THOSE OF THE ELECTORS IN THE SEVERAL STATES, OF THE MOST
NUMEROUS BRANCH OF THEIR OWN LEGISLATURES."  ART. IV, SEC. 1. 

     "THE TIMES AND PLACES AND MANNER OF HOLDING THE ELECTIONS OF

  THE MEMBERS OF EACH HOUSE SHALL BE PRESCRIBED BY THE LEGISLATURE

  OF EACH STATE; BUT THEIR PROVISIONS CONCERNING THEM MAY, AT ANY

  TIME, BE ALTERED BY THE LEGISLATURE OF THE UNITED STATES."  /3/

  ART. IV, SEC. 1. 

ON AUGUST 7, GOUVERNEUR MORRIS MOVED TO STRIKE THE LAST CLAUSE OF
THE PROPOSED ART. IV, SEC. 1, AND EITHER TO PROVIDE A FREEHOLD
LIMITATION ON SUFFRAGE OR TO ADD A CLAUSE PERMITTING CONGRESS TO ALTER
THE ELECTORAL QUALIFICATIONS.  /4/  THIS MOTION WAS OPPOSED BY OLIVER
ELLSWORTH, GEORGE MASON, JAMES MADISON, AND BENJAMIN FRANKLIN. 
ELLSWORTH PROTESTED THAT THE PROPOSAL FAVORED ARISTOCRACY.  IF THE
LEGISLATURE COULD ALTER QUALIFICATIONS, IT COULD DISQUALIFY A GREAT
PROPORTION OF THE ELECTORATE.  /5/  MASON VOICED A SIMILAR OBJECTION. 
"A POWER TO ALTER THE QUALIFICATIONS WOULD BE A DANGEROUS POWER IN THE
HANDS OF THE LEGISLATURE."  /6/  TO THE SAME EFFECT MADISON SAID: 

"THE RIGHT OF SUFFRAGE IS CERTAINLY ONE OF THE FUNDAMENTAL ARTICLES
OF REPUBLICAN GOVERNMENT, AND OUGHT NOT TO BE LEFT TO BE REGULATED BY
THE LEGISLATURE."  /7/ THE PROPOSED MOTION WAS DEFEATED BY A SEVEN-TO
ONE VOTE, /8/  AND NO SUBSTANTIVE CHANGE IN ART. I, SEC. 2, WAS
PROPOSED OR MADE THEREAFTER. 

THUS, ALEXANDER HAMILTON ACCURATELY REPORTED THE INTENT OF THE
CONVENTION WHEN HE WROTE IN THE FEDERALIST NO. 60 THAT THE AUTHORITY OF
THE NATIONAL GOVERNMENT "WOULD BE EXPRESSLY RESTRICTED TO THE
REGULATION OF THE TIMES, THE PLACES, AND THE MANNER OF ELECTIONS.  THE
QUALIFICATIONS OF THE PERSONS WHO MAY CHOOSE OR BE CHOSEN, AS HAS BEEN
REMARKED UPON OTHER OCCASIONS, ARE DEFINED AND FIXED IN THE
CONSTITUTION, AND ARE UNALTERABLE BY THE LEGISLATURE (I.E.,
CONGRESS)." 

DIFFERENT PROVISIONS OF THE CONSTITUTION GOVERN THE SELECTION OF THE
PRESIDENT AND THE VICE PRESIDENT.  ARTICLE II AND THE TWELFTH AMENDMENT
PROVIDE FOR ELECTION BY ELECTORS.  ARTICLE II SPECIFIES THAT EACH STATE
SHALL APPOINT ELECTORS "IN SUCH MANNER AS THE LEGISLATURE THEREOF MAY
DIRECT."  BECAUSE THE CONSTITUTION DOES NOT REQUIRE THE POPULAR
ELECTION OF MEMBERS OF THE ELECTORAL COLLEGE, IT DOES NOT SPECIFY THE
QUALIFICATIONS THAT VOTERS MUST HAVE WHEN THE SELECTION OF ELECTORS IS
BY POPULAR ELECTION.  THIS IS LEFT TO THE STATES IN THE EXERCISE OF
THEIR POWER TO "DIRECT" THE MANNER OF CHOOSING PRESIDENTIAL ELECTORS. 
WILLIAMS V. RHODES, 393 U.S. 23, 29.  WHEN ELECTORS ARE CHOSEN BY
POPULAR ELECTION, THE FEDERAL GOVERNMENT HAS THE POWER TO ASSURE THAT
SUCH ELECTIONS ARE ORDERLY AND FREE FROM CORRUPTION.  BURROUGHS.  V.
UNITED STATES, 290 U.S. 534.  BUT IN BURROUGHS THE COURT NOTED OF THE
ACT UNDER REVIEW:  "NEITHER IN PURPOSE NOR IN EFFECT DOES IT INTERFERE
WITH THE POWER OF A STATE TO APPOINT ELECTORS OR THE MANNER IN WHICH
THEIR APPOINTMENT SHALL BE MADE."  290 U.S.,AT 544.  THE COURT QUOTED
WITH APPROVAL THE FOLLOWING PASSAGE FROM EX PARTE YARBROUGH, 110 U.S.
651:  "THE IMPORTANCE TO THE GENERAL GOVERNMENT OF HAVING THE ACTUAL
ELECTION-- THE VOTING FOR THOSE MEMBERS-- FREE FROM FORCE AND FRAUD IS
NOT DIMINISHED BY THE CIRCUMSTANCE THAT THE QUALIFICATION OF THE VOTER
IS DETERMINED BY THE LAW OF THE STATE WHERE HE VOTES."  290 U.S.,AT
546.  AND IN UNITED STATES V. CLASSIC, 313 U.S. 299, THE COURT WAS
CAREFUL TO POINT OUT THAT IT IS THE "RIGHT OF QUALIFIED VOTERS WITHIN A
STATE TO CAST THEIR BALLOTS AND HAVE THEM COUNTED" WHICH IS A PRIVILEGE
OF UNITED STATES CITIZENSHIP AMENABLE TO CONGRESSIONAL PROTECTION. 
ID., AT 315.  SEE ALSO CORFIELD V. CORYELL, 6 F.CAS.  546, 552 (NO.
3230)(CCED PA.).     THE ISSUE, THEN, IS WHETHER, DESPITE THE
INTENTIONAL WITHHOLDING FROM THE FEDERAL GOVERNMENT OF A GENERAL
AUTHORITY TO ESTABLISH QUALIFICATIONS TO VOTE IN EITHER CONGRESSIONAL
OR PRESIDENTIAL ELECTIONS, THERE EXISTS CONGRESSIONAL POWER TO DO SO
WHEN CONGRESS ACTS WITH THE OBJECTIVE OF PROTECTING A CITIZEN'S
PRIVILEGE TO MOVE HIS RESIDENCE FROM ONE STATE TO ANOTHER.  ALTHOUGH
THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, I AM PERSUADED THAT THE
CONSTITUTIONAL PROVISIONS DISCUSSED ABOVE ARE NOT SUFFICIENT TO PREVENT
CONGRESS FROM PROTECTING A PERSON WHO EXERCISES HIS CONSTITUTIONAL
RIGHT TO ENTER AND ABIDE IN ANY STATE IN THE UNION FROM LOSING HIS
OPPORTUNITY TO VOTE, WHEN CONGRESS MAY PROTECT THE RIGHT OF INTERSTATE
TRAVEL FROM OTHER LESS FUNDAMENTAL DISABILITIES.  THE POWER OF THE
STATES WITH REGARD TO THE FRANCHISE IS SUBJECT TO THE POWER OF THE
FEDERAL GOVERNMENT TO VINDICATE THE UNCONDITIONAL PERSONAL RIGHTS
SECURED TO THE CITIZEN BY THE FEDERAL CONSTITUTION.  WILLIAMS V.
RHODES, SUPRA; CF. SHAPIRO V. THOMPSON, SUPRA.  THE POWER THAT CONGRESS
HAS EXERCISED IN ENACTING SEC. 202 IS NOT A GENERAL POWER TO PRESCRIBE
QUALIFICATIONS FOR VOTERS IN EITHER FEDERAL OR STATE ELECTIONS.  IT IS
CONFINED TO FEDERAL ACTION AGAINST A PARTICULAR PROBLEM CLEARLY WITHIN
THE PURVIEW OF CONGRESSIONAL AUTHORITY.  FINALLY, THE POWER TO
FACILITATE THE CITIZEN'S EXERCISE OF HIS CONSTITUTIONAL PRIVILEGE TO
CHANGE RESIDENCE IS ONE THAT CANNOT BE LEFT FOR EXERCISE BY THE
INDIVIDUAL STATES WITHOUT SERIOUSLY DIMINISHING THE LEVEL OF PROTECTION
AVAILABLE.  AS I HAVE SOUGHT TO SHOW ABOVE, FEDERAL ACTION IS REQUIRED
IF THIS PRIVILEGE IS TO BE EFFECTIVELY MAINTAINED.  WE SHOULD STRIVE TO
AVOID AN INTERPRETATION OF THE CONSTITUTION THAT WOULD WITHHOLD FROM
CONGRESS THE POWER TO LEGISLATE FOR THE PROTECTION OF THOSE
CONSTITUTIONAL RIGHTS THAT THE STATES ARE UNABLE EFFECTIVELY TO
SECURE.  FOR ALL THESE REASONS, I CONCLUDE THAT IT WAS WITHIN THE POWER
TO CONGRESS TO ENACT SEC. 202.  /9/

        III 

UNDERTAKES TO ENFRANCHISE IN ALL FEDERAL, STATE AND LOCAL ELECTIONS
THOSE CITIZENS 18 YEARS OF AGE OR OLDER WHO ARE NOW DENIED THE RIGHT TO
VOTE BY STATE LAW BECAUSE THEY HAVE NOT REACHED THE AGE OF 21. 
ALTHOUGH IT WAS FOUND NECESSARY TO AMEND THE CONSTITUTION IN ORDER TO
CONFER A FEDERAL RIGHT TO VOTE UPON NEGROES /10/  AND UPON FEMALES,
/11/  THE GOVERNMENT ASSERTS THAT A FEDERAL RIGHT TO VOTE CAN BE
CONFERRED UPON PEOPLE BETWEEN 18 AND 21 YEARS OF AGE SIMPLY BY THIS ACT
OF CONGRESS.  OUR DECISION IN KATZENBACH V. MORGAN, 384 U.S. 641, IT IS
SAID, ESTABLISHED THE POWER OF CONGRESS, UNDER SEC. 5 OF THE FOURTEENTH
AMENDMENT, TO NULLIFY STATE LAWS REQUIRING VOTERS TO BE 21 YEARS OF AGE
OR OLDER IF CONGRESS COULD RATIONALLY HAVE CONCLUDED THAT SUCH LAWS ARE
NOT SUPPORTED BY A "COMPELLING STATE INTEREST." 

IN MY VIEW, NEITHER THE MORGAN CASE, NOR ANY OTHER CASE UPON WHICH
THE GOVERNMENT RELIES, ESTABLISHES SUCH CONGRESSIONAL POWER, EVEN
ASSUMING THAT ALL THOSE CASES /12/  WERE RIGHTLY DECIDED.  MR. JUSTICE
BLACK IS SURELY CORRECT WHEN HE WRITES, "IT IS PLAIN FACT OF HISTORY
THAT THE FRAMERS NEVER IMAGINED THAT THE NATIONAL CONGRESS WOULD SET
THE QUALIFICATIONS FOR VOTERS IN EVERY ELECTION FROM PRESIDENT TO LOCAL
CONSTABLE OR VILLAGE ALDERMAN.  IT IS OBVIOUS THAT THE WHOLE
CONSTITUTION RESERVES TO THE STATES THE POWER TO SET VOTER
QUALIFICATIONS IN STATE AND LOCAL ELECTIONS, EXCEPT TO THE LIMITED
EXTENT THAT THE PEOPLE THROUGH CONSTITUTIONAL AMENDMENTS HAVE
SPECIFICALLY NARROWED THE POWERS OF THE STATES."  ANTE, AT 125.  FOR
THE REASONS I HAVE SET OUT IN PART II OF THIS OPINION, IT IS EQUALLY
PLAIN TO ME THAT THE CONSTITUTION JUST AS COMPLETELY WITHHOLDS FROM
CONGRESS THE POWER TO ALTER BY LEGISLATION QUALIFICATIONS FOR VOTERS IN
FEDERAL ELECTIONS, IN VIEW OF THE EXPLICIT PROVISIONS OF ARTICLE I,
ARTICLE II, AND THE SEVENTEENTH AMENDMENT. 

TO BE SURE, RECENT DECISIONS HAVE ESTABLISHED THAT STATE ACTION
REGULATING SUFFRAGE IS NOT IMMUNE FROM THE IMPACT OF THE EQUAL
PROTECTION CLAUSE.  /13/ BUT WE HAVE BEEN CAREFUL IN THOSE DECISIONS TO
NOTE THE UNDOUBTED POWER OF A STATE TO ESTABLISH A QUALIFICATION FOR
VOTING BASED ON AGE.  SEE, E.G., KRAMER V. UNION SCHOOL DISTRICT, 395
U.S. 621, 625; LASSITER V. NORTHAMPTON ELECTION BOARD, 360 U.S.,AT 51. 
INDEED, NONE OF THE OPINIONS FILED TODAY SUGGEST THAT THE STATES HAVE
ANYTHING BUT A CONSTITUTIONALLY UNIMPEACHABLE INTEREST IN ESTABLISHING
SOME AGE QUALIFICATIONS AS SUCH.  YET TO TEST THE POWER TO ESTABLISH AN
AGE QUALIFICATION BY THE "COMPELLING INTEREST" STANDARD IS REALLY TO
DENY A STATE ANY CHOICE AT ALL, BECAUSE NO STATE COULD DEMONSTRATE A
"COMPELLING INTEREST" IN DRAWING THE LINE WITH RESPECT TO AGE AT ONE
POINT RATHER THAN ANOTHER.  OBVIOUSLY, THE POWER TO ESTABLISH AN AGE
QUALIFICATION MUST CARRY WITH IT THE POWER TO CHOOSE 21 AS A REASONABLE
VOTING AGE, AS THE VAST MAJORITY OF THE STATES HAVE DONE.  /14/ 

KATZENBACH V. MORGAN, SUPRA, DOES NOT HOLD THAT CONGRESS HAS THE
POWER TO DETERMINE WHAT ARE AND WHAT ARE NOT "COMPELLING STATE
INTERESTS" FOR EQUAL PROTECTION PURPOSES.  IN MORGAN THE COURT
CONSIDERED THE POWER OF CONGRESS TO ENACT A STATUTE WHOSE PRINCIPAL
EFFECT WAS TO ENFRANCHISE PUERTO RICANS WHO HAD MOVED TO NEW YORK AFTER
RECEIVING THEIR EDUCATION IN SPANISH-LANGUAGE PUERTO RICAN SCHOOLS AND
WHO WERE DENIED THE RIGHT TO VOTE IN NEW YORK BECAUSE THEY WERE UNABLE
TO READ OR WRITE ENGLISH.  THE COURT UPHELD THE STATUTE ON TWO GROUNDS:
THAT CONGRESS COULD CONCLUDE THAT ENHANCING THE POLITICAL POWER OF THE
PUERTO RICAN COMMUNITY BY CONFERRING THE RIGHT TO VOTE WAS AN
APPROPRIATE MEANS OF REMEDYING DISCRIMINATORY TREATMENT IN PUBLIC
SERVICES; AND THAT CONGRESS COULD CONCLUDE THAT THE NEW YORK STATUTE
WAS TAINTED BY THE IMPERMISSIBLE PURPOSE OF DENYING THE RIGHT TO VOTE
TO PUERTO RICANS, AN UNDOUBTED INVIDIOUS DISCRIMINATION UNDER THE EQUAL
PROTECTION CLAUSE.  BOTH OF THESE DECISIONAL GROUNDS WERE FARREACHING. 
THE COURT'S OPINION MADE CLEAR THAT CONGRESS COULD IMPOSE ON THE STATES
A REMEDY FOR THE DENIAL OF EQUAL PROTECTION THAT ELABORATED UPON THE
DIRECT COMMAND OF THE CONSTITUTION, AND THAT IT COULD OVERRIDE STATE
LAWS ON THE GROUND THAT THEY WERE IN FACT USED AS INSTRUMENTS OF
INVIDIOUS DISCRIMINATION EVEN THOUGH A COURT IN AN INDIVIDUAL LAWSUIT
MIGHT NOT HAVE REACHED THAT FACTUAL CONCLUSION.  CF. SWAIN V. ALABAMA,
380 U.S. 202. 

BUT IT IS NECESSARY TO GO MUCH FURTHER TO SUSTAIN SEC. 302.  THE
STATE LAWS THAT IT INVALIDATES DO NOT INVIDIOUSLY DISCRIMINATE AGAINST
ANY DISCRETE AND INSULAR MINORITY.  UNLIKE THE STATUTE CONSIDERED IN
MORGAN, SEC. 302 IS VALID ONLY IF CONGRESS HAS THE POWER NOT ONLY TO
PROVIDE THE MEANS OF ERADICATING SITUATIONS THAT AMOUNT TO A VIOLATION
OF THE EQUAL PROTECTION CLAUSE, BUT ALSO TO DETERMINE AS A MATTER OF
SUBSTANTIVE CONSTITUTIONAL LAW WHAT SITUATIONS FALL WITHIN THE AMBIT OF
THE CLAUSE, AND WHAT STATE INTERESTS ARE "COMPELLING."  I CONCURRED IN
MR. JUSTICE HARLAN'S DISSENT IN MORGAN.  THAT CASE, AS I NOW READ IT,
GAVE CONGRESSIONAL POWER UNDER SEC. 5 THE FURTHEST POSSIBLE LEGITIMATE
REACH.  YET TO SUSTAIN THE CONSTITUTIONALITY OF SEC. 302 WOULD REQUIRE
AN ENORMOUS EXTENSION OF THAT DECISION'S RATIONALE.  I CANNOT BUT
CONCLUDE THAT SEC. 302 WAS BEYOND THE CONSTITUTIONAL POWER OF CONGRESS
TO ENACT. 

/1/  2 M. FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, P. 153
(1911). 

/2/  ID., AT 164. 

/3/  ID., AT 178-179. 

/4/  ID., AT 201, 207. 

/5/  ID., AT 201. 

/6/  ID., AT 202. 

/7/  ID., AT 203. 

/8/  ID., AT 206. 

/9/  WHETHER A PARTICULAR STATE'S DURATIONAL RESIDENCY REQUIREMENT
FOR VOTERS MAY VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT PRESENTS QUESTIONS THAT ARE FOR ME QUITE DIFFERENT FROM THOSE
ATTENDING THE CONSTITUTIONALITY OF SEC. 202.  SEE HOWE V. BROWN, 310
F.SUPP.  862 (ND OHIO 1970); COCANOWER V. MARSTON, 318 F.SUPP.  402
(ARIZ. 1970); BURG V. CANNIFFE, 315 F.SUPP.  380 (MASS. 1970);
BLUMSTEIN V. ELLINGTON,-- F.SUPP.-- (MD TENN. 1970); HADNOTT V. AMOS,
320 F.SUPP.  107 (MD ALA. 1970); BUFFORD V. HOLTON, 319 F.SUPP.  843
(ED VA. 1970); LESTER V. BOARD OF ELECTIONS, 319 F.SUPP.  505 (DC
1970). 

/10/  U.S. CONST. AMDT. XV. 

/11/  U.S. CONST. AMDT. XIX; SEE ALSO MINOR V. HAPPERSETT, 21 WALL. 
162. 

/12/  CARRINGTON V. RASH, 380 U.S. 89 (1965); LOUISIANA V. UNITED
STATES, 380 U.S. 145 (1965); HARPER V. VIRGINIA BOARD OF ELECTIONS, 383
U.S. 663 (1966); KATZENBACH V. MORGAN, 384 U.S. 641 (1966); KRAMER V.
UNION SCHOOL DISTRICT, 395 U.S. 621 (1969); CIPRIANO V. CITY OF HOUMA,
395 U.S. 701 (1969); EVANS V. CORNMAN, 398 U.S. 419 (1970); PHOENIX V.
KOLODZIEJSKI, 399 U.S. 204 (1970). 

/13/  SEE, E.G., CASE- CITED SUPRA, N. 12. 

/14/  IF THE GOVERNMENT IS CORRECT IN ITS SUBMISSION THAT A
PARTICULAR AGE REQUIREMENT MUST MEET THE "COMPELLING INTEREST"
STANDARD, THEN, OF COURSE, A SUBSTANTIAL QUESTION WOULD EXIST WHETHER A
21-YEAR-OLD VOTER QUALIFICATION IS CONSTITUTIONAL EVEN IN THE ABSENCE
OF CONGRESSIONAL ACTION, AS MY BROTHERS POINT OUT.  ANTE, AT 241-246. 
YET IT IS INCONCEIVABLE TO ME THAT THIS COURT WOULD EVER HOLD THAT THE
DENIAL OF THE VOTE TO THOSE BETWEEN THE AGES OF 18 AND 21 CONSTITUTES
SUCH AN INVIDIOUS DISCRIMINATION AS TO BE A DENIAL OF THE EQUAL
PROTECTION OF THE LAWS.  THE ESTABLISHMENT OF AN AGE QUALIFICATION IS
NOT STATE ACTION AIMED AT ANY DISCRETE AND INSULAR MINORITY.  CF.
UNITED STATES V. CAROLENE PRODECTS CO., 304 U.S. 144, 152 N. 4. 
MOREOVER, SO LONG AS A STATE DOES NOT SET THE VOTING AGE HIGHER THAN
21, THE REASONABLENESS OF ITS CHOICE IS CONFIRMED BY THE VERY
FOURTEENTH AMENDMENT UPON WHICH THE GOVERNMENT RELIES.  SECTION 2 OF
THAT AMENDMENT PROVIDES FOR SANCTIONS WHEN THE RIGHT TO VOTE "IS DENIED
TO ANY OF THE MALE INHABITANTS OF SUCH STATE, BEING TWENTY-ONE YEARS OF
AGE, AND CITIZENS OF THE UNITED STATES.  . . . " 

LEE JOHNSON, ATTORNEY GENERAL OF OREGON, ARGUED THE CAUSE FOR
PLAINTIFF IN NO. 43, ORIG.  WITH HIM ON THE BRIEFS WERE DIARMUID F.
O'SCANNLAIN, DEPUTY ATTORNEY GENERAL, JACOB B. TANZER, SOLICITOR
GENERAL, AND AL. J. LAUE AND THOMAS H. DENNEY, ASSISTANT ATTORNEYS
GENERAL.  CHARLES ALAN WRIGHT ARGUED THE CAUSE FOR PLAINTIFF IN NO. 44,
ORIG.  WITH HIM ON THE BRIEF WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL
OF TEXAS, NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL, ALFRED WALKER,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND J. C. DAVIS, W. O. SHULTZ II,
AND JOHN REEVES, ASSISTANT ATTORNEYS GENERAL. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR DEFENDANT IN NOS.
43, ORIG., AND 44, ORIG., AND FOR THE UNITED STATES IN NOS. 46, ORIG.,
AND 47, ORIG.  WITH HIM ON THE BRIEFS WERE ATTORNEY GENERAL MITCHELL,
PRO SE, ASSISTANT ATTORNEY GENERAL LEONARD, PETER L. STRAUSS, AND
SAMUEL HUNTINGTON. 

GARY K. NELSON, ATTORNEY GENERAL OF ARIZONA, AND JOHN M. MCGOWAN II,
SPECIAL ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE AND FILED A BRIEF
FOR DEFENDANT IN NO. 46, ORIG.  ROBERT M. ROBSON, ATTORNEY GENERAL OF
IDAHO, ARGUED THE CAUSE FOR DEFENDANT IN NO. 47, ORIG.  WITH HIM ON THE
BRIEF WAS RICHARD H. GREENER, ASSISTANT ATTORNEY GENERAL. 

BRIEF OF AMICUS CURIAE IN ALL CASES WAS FILED BY A. F. SUMMER,
ATTORNEY GENERAL, DELOS BURKS, FIRST ASSISTANT ATTORNEY GENERAL,
WILLIAM A. ALLAIN, ASSISTANT ATTORNEY GENERAL, AND CHARLES B. HENLEY,
FOR THE STATE OF MISSISSIPPI.  BRIEFS OF AMICI CURIAE IN NOS. 43,
ORIG., 46, ORIG., AND 47, ORIG., WERE FILED BY MELVIN L. WULF FOR THE
AMERICAN CIVIL LIBERTIES UNION, AND BY JOHN R. COSGROVE FOR CITIZENS
FOR LOWERING THE VOTING AGE ET AL. BRIEF OF AMICUS CURIAE IN NOS. 43,
ORIG., AND 46, ORIG., WAS FILED BY WILLIAM A. DOBROVIR, JOSEPH L. RAUH,
JR., DAVID RUBIN, STEPHEN I. SCHLOSSBERG, JOHN A. FILLION, NATHANIEL R.
JONES, CLARENCE MITCHELL, AND J. FRANCIS POHLHAUS FOR THE YOUTH
FRANCHISE COALITION ET AL. BRIEFS OF AMICI CURIAE IN NO. 43, ORIG.,
WERE FILED BY JOSEPH A. CALIFANO, JR., AND CLIFFORD L. ALEXANDER FOR
THE DEMOCRATIC NATIONAL COMMITTEE, AND BY MESSRS.  JONES, MITCHELL, AND
POHLHAUS FOR THE DEPARTMENT OF ARMED SERVICES AND VETERANS AFFAIRS OF
THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE.  BRIEF
OF AMICUS CURIAE FOR THE STATE OF INDIANA IN SUPPORT OF PLAINTIFF IN
NO. 44, ORIG., WAS FILED BY THEODORE L. SENDAK, ATTORNEY GENERAL,
RICHARD C. JOHNSON, CHIEF DEPUTY ATTORNEY GENERAL, AND WILLIAM F.
THOMPSON, ASSISTANT ATTORNEY GENERAL, JOINED BY THE ATTORNEYS GENERAL
FOR THEIR RESPECTIVE STATES, AS FOLLOWS:  JOE PURCELL OF ARKANSAS,
ROBERT M. ROBSON OF IDAHO, JACK P. F. GREMILLION OF LOUISIANA, CLARENCE
A. H. MEYER OF NEBRASKA, WARREN B. RUDMAN OF NEW HAMPSHIRE, ROBERT
MORGAN OF NORTH CAROLINA, HELGI JOHANNESON OF NORTH DAKOTA, PAUL W.
BROWN OF OHIO, GORDON MYDLAND OF SOUTH DAKOTA, VERNON B. ROMNEY OF
UTAH, SLADE GORTON OF WASHINGTON, CHAUNCEY H. BROWNING, JR., OF WEST
VIRGINIA, AND JAMES E. BARRETT OF WYOMING.  BRIEF OF AMICUS CURIAE IN
NO. 47, ORIG., WAS FILED BY ANDREW P. MILLER, ATTORNEY GENERAL, AND
ANTHONY F. TROY AND WALTER A. MCFARLANE, ASSISTANT ATTORNEYS GENERAL,
FOR THE COMMONWEALTH OF VIRGINIA. 
..END :
















DUTTON V. EVANS, 400 U.S. 74 


       DUTTON, WARDEN V. EVANS

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH

CIRCUIT

        NO. 10.  ARGUED OCTOBER 15, 1969-- REARGUED OCTOBER 15,

           1970-- DECIDED DECEMBER 15, 1970 


APPELLEE WAS CONVICTED OF FIRST-DEGREE MURDER FOLLOWING A TRIAL IN
WHICH ONE SHAW TESTIFIED, OVER OBJECTION, CONCERNING A STATEMENT
WILLIAMS (AN ALLEGED ACCOMPLICE) HAD MADE IN THE PRISON WHERE BOTH WERE
INCARCERATED, THAT HAD IT NOT BEEN FOR APPELLEE "WE WOULDN'T BE IN THIS
NOW."  THERE WERE 19 OTHER PROSECUTION WITNESSES, ONE OF WHOM (ANOTHER
ALLEGED ACCOMPLICE) GAVE DETAILED EYEWITNESS TESTIMONY OF THE CRIME AND
THE PARTICIPATION OF THE APPELLEE AND WILLIAMS THEREIN.  SHAW'S
TESTIMONY WAS ADMITTED UNDER A GEORGIA STATUTE WHICH, AS CONSTRUED BY
THE GEORGIA SUPREME COURT, ALLOWS INTO EVIDENCE A COCONSPIRATOR'S OUT
OF-COURT STATEMENT MADE DURING THE CONCEALMENT PHASE OF THE
CONSPIRACY.  FOLLOWING AFFIRMANCE OF THE CONVICTION BY THE GEORGIA
SUPREME COURT, APPELLEE BROUGHT THIS HABEAS CORPUS PROCEEDING IN
FEDERAL COURT.  THE DISTRICT COURT DENIED THE WRIT BUT THE COURT OF
APPEALS REVERSED, HOLDING THAT THE GEORGIA STATUTE VIOLATED APPELLEE'S
RIGHT TO CONFRONTATION SECURED BY THE SIXTH AND FOURTEENTH AMENDMENTS. 
APPELLEE CONTENDS THAT THE GEORGIA HEARSAY EXCEPTION IS
UNCONSTITUTIONAL SINCE IT DIFFERS FROM THE HEARSAY EXCEPTION APPLICABLE
TO CONSPIRACY TRIALS IN THE FEDERAL COURTS, WHICH APPLIES ONLY IF THE
OUT-OF-COURT STATEMENT OF A COCONSPIRATOR WAS MADE IN THE COURSE OF AND
IN FURTHERANCE OF THE CONSPIRACY.  HELD:  THE JUDGMENT IS REVERSED. 
PP. 80-90; 93-100. 

400 F.2D 826, REVERSED. 

MR. JUSTICE STEWART, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE WHITE,
AND MR. JUSTICE BLACKMUN, CONCLUDED THAT: 

1.  THE COCONSPIRATOR HEARSAY EXCEPTION APPLIED BY GEORGIA IS NOT
INVALID UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT, AS
APPLIED TO THE STATES BY THE FOURTEENTH, MERELY BECAUSE IT DOES NOT
COINCIDE WITH THE NARROWER EXCEPTION APPLICABLE IN FEDERAL CONSPIRACY
TRIALS WHICH RESULTS, NOT FROM THE SIXTH AMENDMENT, BUT FROM THE
EXERCISE OF THIS COURT'S RULE-MAKING POWER RESPECTING THE FEDERAL LAW
OF EVIDENCE.  PP. 80-83. 

2.  IN THE CIRCUMSTANCES OF THIS CASE THE ADMISSION INTO EVIDENCE OF
WILLIAMS' STATEMENT DID NOT RESULT IN ANY DENIAL OF APPELLEE'S
CONFRONTATION RIGHT SINCE THE OUT-OF-COURT STATEMENT BORE INDICIA OR
RELIABILITY THAT FULLY WARRANTED ITS BEING PLACED BEFORE THE JURY.  PP.
83-90. 

MR. JUSTICE HARLAN CONCLUDED THAT EXCEPTIONS TO THE RULE AGAINST
HEARSAY MUST BE EVALUATED, NOT BY THE CONFRONTATION CLAUSE (WHICH IS
NOT DESIGNED TO COPE WITH THE MANY FACTORS INVOLVED IN PASSING ON
EVIDENTIARY RULES), BUT BY THE DUE PROCESS STANDARDS OF THE FIFTH AND
FOURTEENTH AMENDMENTS.  THUS EVALUATED, THE GEORGIA STATUTE IS
CONSTITUTIONAL AS APPLIED IN THIS CASE SINCE THE OUT-OF-COURT
DECLARATION AGAINST INTEREST INVOLVED HERE EVINCES SOME LIKELIHOOD OF
TRUSTWORTHINESS AND ITS EXCLUSION FROM EVIDENCE IS THEREFORE NOT
ESSENTIAL TO A FAIR TRIAL.  PP. 93-100. 

STEWART, J., ANNOUNCED THE COURT'S JUDGMENT AND DELIVERED AN
OPINION, IN WHICH BURGER, C. J., AND WHITE AND BLACKMUN, JJ., JOINED. 
BLACKMUN, J., FILED A CONCURRING OPINION, IN WHICH BURGER, C. J.,
JOINED, POST, P. 90.  HARLAN, J., FILED AN OPINION CONCURRING IN THE
RESULT, POST, P. 93.  MARSHALL, J., FILED A DISSENTING OPINION, IN
WHICH BLACK, DOUGLAS, AND BRENNAN, JJ., JOINED, POST, P. 100. 

MR. JUSTICE STEWART ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE WHITE, AND MR. JUSTICE
BLACKMUN JOIN. 

EARLY ON AN APRIL MORNING IN 1964, THREE POLICE OFFICERS WERE
BRUTALLY MURDERED IN GWINNETT COUNTY, GEORGIA.  THEIR BODIES WERE FOUND
A FEW HOURS LATER, HANDCUFFED TOGETHER IN A PINE THICKET, EACH WITH
MULTIPLE GUNSHOT WOUNDS IN THE BACK OF THE HEAD.  AFTER MANY MONTHS OF
INVESTIGATION, GEORGIA AUTHORITIES CHARGED THE APPELLEE, EVANS, AND TWO
OTHER MEN, WADE TRUETT AND VENSON WILLIAMS, WITH THE OFFICERS'
MURDERS.  EVANS AND WILLIAMS WERE INDICTED BY A GRAND JURY; TRUETT WAS
GRANTED IMMUNITY FROM PROSECUTION IN RETURN FOR HIS TESTIMONY. 

EVANS PLEADED NOT GUILTY AND EXERCISED HIS RIGHT UNDER GEORGIA LAW
TO BE TRIED SEPARATELY.  AFTER A JURY TRIAL, HE WAS CONVICTED OF MURDER
AND SENTENCED TO DEATH.  /1/  THE JUDGMENT OF CONVICTION WAS AFFIRMED
BY THE SUPREME COURT OF GEORGIA, /2/  AND THIS COURT DENIED
CERTIORARI.  /3/  EVANS THEN BROUGHT THE PRESENT HABEAS CORPUS
PROCEEDING IN A FEDERAL DISTRICT COURT, ALLEGING, AMONG OTHER THINGS,
THAT HE HAD BEEN DENIED THE CONSTITUTIONAL RIGHT OF CONFRONTATION AT
HIS TRIAL.  THE DISTRICT COURT DENIED THE WRIT, /4/  BUT THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT REVERSED, HOLDING THAT GEORGIA HAD,
INDEED, DENIED EVANS THE RIGHT, GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS, "TO BE CONFRONTED BY THE WITNESSES AGAINST HIM."  /5/ FROM
THAT JUDGMENT AN APPEAL WAS BROUGHT TO THIS COURT, AND WE NOTED
PROBABLE JURISDICTION.  /6/  THE CASE WAS ORIGINALLY ARGUED LAST TERM,
BUT WAS SET FOR REARGUMENT.  397 U.S. 1060. 

IN ORDER TO UNDERSTAND THE CONTEXT OF THE CONSTITUTIONAL QUESTION
BEFORE US, A BRIEF REVIEW OF THE PROCEEDINGS AT EVANS' TRIAL IS
NECESSARY.  THE PRINCIPAL PROSECUTION WITNESS AT THE TRIAL WAS TRUETT,
THE ALLEGED ACCOMPLICE WHO HAD BEEN GRANTED IMMUNITY.  TRUETT DESCRIBED
AT LENGTH AND IN DETAIL THE CIRCUMSTANCES SURROUNDING THE MURDER OF THE
POLICE OFFICERS.  HE TESTIFIED THAT HE, ALONG WITH EVANS AND WILLIAMS,
HAD BEEN ENGAGED IN SWITCHING THE LICENSE PLATES ON A STOLEN CAR PARKED
ON A BACK ROAD IN GWINETT COUNTY WHEN THEY WERE ACCOSTED BY THE THREE
POLICE OFFICERS.  AS THE YOUNGEST OF THE OFFICERS LEANED IN FRONT OF
EVANS TO INSPECT THE IGNITION SWITCH ON THE CAR, EVANS GRABBED THE
OFFICER'S GUN FROM ITS HOLSTER.  EVANS AND WILLIAMS THEN DISARMED THE
OTHER OFFICERS AT GUNPOINT, AND HANDCUFFED THE THREE OF THEM TOGETHER. 
THEY THEN TOOK THE OFFICERS INTO THE WOODS AND KILLED THEM BY FIRING
SEVERAL BULLETS INTO THEIR BODIES AT EXTREMELY CLOSE RANGE.  IN
ADDITION TO TRUETT, 19 OTHER WITNESSES TESTIFIED FOR THE PROSECUTION. 
/7/  DEFENSE COUNSEL WAS GIVEN FULL OPPORTUNITY TO CROSS-EXAMINE EACH
WITNESS, AND HE EXERCISED THAT OPPORTUNITY WITH RESPECT TO MOST OF
THEM. 

ONE OF THE 20 PROSECUTION WITNESSES WAS A MAN NAMED SHAW.  HE
TESTIFIED THAT HE AND WILLIAMS HAD BEEN FELLOW PRISONERS IN THE FEDERAL
PENITENTIARY IN ATLANTA, GEORGIA, AT THE TIME WILLIAMS WAS BROUGHT TO
GWINNETT COUNTY TO BE ARRAIGNED ON THE CHARGES OF MURDERING THE POLICE
OFFICERS.  SHAW SAID THAT WHEN WILLIAMS WAS RETURNED TO THE
PENITENTIARY FROM THE ARRAIGNMENT, HE HAD ASKED WILLIAMS:  "HOW DID YOU
MAKE OUT IN COURT?"  AND THAT WILLIAMS HAD RESPONDED, "IF IT HADN'T
BEEN FOR THAT DIRTY SON-OF-A-BITCH ALEX EVANS, WE WOULDN'T BE IN THIS
NOW."  DEFENSE COUNSEL OBJECTED TO THE INTRODUCTION OF THIS TESTIMONY
UPON THE GROUND THAT IT WAS HEARSAY AND THUS VIOLATIVE OF EVANS' RIGHT
OF CONFRONTATION.  AFTER THE OBJECTION WAS OVERRULED, COUNSEL CROSS
EXAMINED SHAW AT LENGTH. 

THE TESTIMONY OF SHAW RELATING WHAT HE SAID WILLIAMS HAD TOLD HIM
WAS ADMITTED BY THE GEORGIA TRIAL COURT, AND ITS ADMISSION UPHELD BY
THE GEORGIA SUPREME COURT, UPON THE BASIS OF A GEORGIA STATUTE THAT
PROVIDES:  "AFTER THE FACT OF CONSPIRACY SHALL BE PROVED, THE
DECLARATIONS BY ANY ONE OF THE CONSPIRATORS DURING THE PENDENCY OF THE
CRIMINAL PROJECT SHALL BE ADMISSIBLE AGAINST ALL."  /8/  AS THE
APPELLATE COURT PUT IT: 

"'THE RULE IS THAT SO LONG AS THE CONSPIRACY TO CONCEAL THE FACT
THAT A CRIME HAS BEEN COMMITTED OR THE IDENTITY OF THE PERPETRATORS OF
THE OFFENSE CONTINUES, THE PARTIES TO SUCH CONSPIRACY ARE TO BE
CONSIDERED SO MUCH A UNIT THAT THE DECLARATIONS OF EITHER ARE
ADMISSIBLE AGAINST THE OTHER.'  THE DEFENDANT, AND HIS CO-CONSPIRATOR,
WILLIAMS, AT THE TIME THIS STATEMENT WAS MADE, WERE STILL CONCEALING
THEIR IDENTITY, KEEPING SECRET THE FACT THAT THEY HAD KILLED THE
DECEASED, IF THEY HAD, AND DENYING THEIR GUILT.  THERE WAS EVIDENCE
SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE OF CONSPIRACY TO STEAL THE
AUTOMOBILE AND THE KILLING OF THE DECEASED BY THE CONSPIRATORS WHILE
CARRYING OUT THE CONSPIRACY, AND THE STATEMENT BY WILLIAMS MADE AFTER
THE ACTUAL COMMISSION OF THE CRIME, BUT WHILE THE CONSPIRACY CONTINUED
WAS ADMISSIBLE."  /9/ THIS HOLDING WAS IN ACCORD WITH A CONSISTENT LINE
OF GEORGIA DECISIONS CONSTRUING THE STATE STATUTE.  SEE, E.G.,
CHATTERTON V. STATE, 221 GA. 424, 144 S.E.2D 726, CERT. DENIED, 384
U.S. 1015; BURNS V. STATE, 191 GA. 60, 73, 11 S.E.2D 350, 358. 

IT WAS THE ADMISSION OF THIS TESTIMONY OF THE WITNESS SHAW THAT
FORMED THE BASIS FOR THE APPELLEE'S CLAIM IN THE PRESENT HABEAS CORPUS
PROCEEDING THAT HE HAD BEEN DENIED THE CONSTITUTIONAL RIGHT OF
CONFRONTATION IN THE GEORGIA TRIAL COURT.  IN UPHOLDING THAT CLAIM, THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT REGARDED ITS DUTY TO BE "NOT
ONLY TO INTERPRET THE FARMERS' ORIGINAL CONCEPT IN LIGHT OF HISTORICAL
DEVELOPMENTS, BUT ALSO TO TRANSLATE INTO DUE-PROCESS TERMS THE
CONSTITUTIONAL BOUNDARIES OF THE HEARSAY RULE."  /10/  THE COURT UPHLED
THE APPELLEE'S CONSTITUTIONAL CLAIM BECAUSE IT COULD FIND NO "SALIENT
AND COGENT REASONS" FOR THE EXCEPTION TO THE HEARSAY RULE GEORGIA
APPLIED IN THE PRESENT CASE, AN EXCEPTION THAT THE COURT POINTED OUT
WAS BROADER THAN THAT APPLICABLE TO CONSPIRACY TRAILS IN THE FEDERAL
COURTS.  /11/ 

THE QUESTION BEFORE US, THEN, IS WHETHER IN THE CIRCUMSTANCES OF
THIS CASE THE COURT OF APPEALS WAS CORRECT IN HOLDING THAT EVANS'
MURDER CONVICTION HAD TO BE SET ASIDE BECAUSE OF THE ADMISSION OF
SHAW'S TESTIMONY.  IN CONSIDERING THIS QUESTION, WE START BY
RECOGNIZING THAT THIS COURT HAS SQUARELY HELD THAT "THE SIXTH
AMENDMENT'S RIGHT OF AN ACCUSED TO CONFRONT THE WITNESSES AGAINST HIM
IS . . . A FUNDAMENTAL RIGHT . . . MADE OBLIGATORY ON THE STATES BY THE
FOURTEENTH AMENDMENT."  POINTER V. TEXAS, 380 U.S. 400, 403.  SEE ALSO
DOUGLAS V. ALABAMA, 380 U.S. 415; BROOKHART V. JANIS, 384 U.S. 1;
BARBER V. PAGE, 390 U.S. 719; ROBERTS V. RUSSELL, 392 U.S. 293;
ILLINOIS V. ALLEN, 397 U.S. 337; CALIFORNIA V. GREEN, 399 U.S. 149. 
BUT THAT IS NO MORE THAN THE BEGINNING OF OUR INQUIRY. 

        I 

IT IS NOT ARGUED, NOR COULD IT BE, THAT THE CONSTITUTIONAL RIGHT TO
CONFRONTATION REQUIRES THAT NO HEARSAY EVIDENCE CAN EVER BE
INTRODUCED.  IN THE OINTER CASE ITSELF, WE REFERRED TO THE DECISIONS OF
THIS COURT THAT HAVE APPROVED THE ADMISSION OF HEARSAY: 

"THIS COURT HAS RECOGNIZED THE ADMISSIBILITY AGAINST AN ACCUSED OF
DYING DECLARATIONS, MATTOX V. UNITED STATES, 146 U.S. 140, 151, AND OF
TESTIMONY OF A DECEASED WITNESS WHO HAS TESTIFIED AT A FORMER TRIAL,
MATTOX V. UNITED STATES, 156 U.S. 237, 240-244.  SEE ALSO DOWDELL V.
UNITED STATES, SUPRA, 221 U.S.AT 330; KIRBY V. UNITED STATES, SUPRA,
174 U.S.,AT 61.  . . . THERE ARE OTHER ANALOGOUS SITUATIONS WHICH MIGHT
NOT FALL WITHIN THE SCOPE OF THE CONSTITUTIONAL RULE REQUIRING
CONFRONTATION OF WITNESSES."  /12/ 

THE ARGUMENT SEEMS TO BE, RATHER THAT IN ANY GIVEN CASE THE
CONSTITUTION REQUIRES A REAPPRAISAL OF EVERY EXCEPTION TO THE HEARSAY
RULE, NO MATTER HOW LONG ESTABLISHED, IN ORDER TO DETERMINE WHETHER, IN
THE WORDS OF THE COURT OF APPEALS, IT IS SUPPORTED BY "SALIENT AND
COGENT REASONS."  THE LOGIC OF THAT POSITION WOULD SEEM TO REQUIRE A
CONSTITUTIONAL REASSESSMENT OF EVERY ESTABLISHED HEARSAY EXCEPTION,
FEDERAL OR STATE, BUT IN THE PRESENT CASE IT IS ARGUED ONLY THAT THE
HEARSAY EXCEPTION APPLIED BY GEORGIA IS CONSTITUTIONALLY INVALID
BECAUSE IT DOES NOT IDENTICALLY CONFORM TO THE HEARSAY EXCEPTION
APPLICABLE TO CONSPIRACY TRIALS IN THE FEDERAL COURTS.  APPELLEE DOES
NOT CHALLENGE AND WE DO NOT QUESTION THE VALIDITY OF THE COCONSPIRATOR
EXCEPTION APPLIED IN THE FEDERAL COURTS. 

THAT THE TWO EVIDENTIARY RULES ARE NOT IDENTICAL MUST BE READILY
CONCEDED.  IT IS SETTLED THAT IN FEDERAL CONSPIRACY TRIALS THE HEARSAY
EXCEPTION THAT ALLOWS EVIDENCE OF AN OUT-OF-COURT STATEMENT OF ONE
CONSPIRATOR TO BE ADMITTED AGAINST HIS FELLOW CONSPIRATORS APPLIES ONLY
IF THE STATEMENT WAS MADE IN THE COURSE OF AN IN FURTHERANCE OF THE
CONSPIRACY, AND NOT DURING A SUBSEQUENT PERIOD WHEN THE CONSPIRATORS
WERE ENGAGED IN NOTHING MORE THAN CONCEALMENT OF THE CRIMINAL
ENTERPRISE.  LUTWAK V. UNITED STATES, 344 U.S. 604; KRULEWITCH V.
UNITED STATES, 336 U.S. 440.  THE HEARSAY EXCEPTION THAT GEORGIA
APPLIED IN THE PRESENT CASE, ON THE OTHER HAND, PERMITS THE
INTRODUCTION OF EVIDENCE OF SUCH AN OUT-OF-COURT STATEMENT EVEN THOUGH
MADE DURING THE CONCEALMENT PHASE OF THE CONSPIRACY. 

BUT IT DOES NOT FOLLOW THAT BECAUSE THE FEDERAL COURTS HAVE DECLINED
TO EXTEND THE HEARSAY EXCEPTION TO INCLUDE OUT-OF-COURT STATEMENTS MADE
DURING THE CONCEALMENT PHASE OF A CONSPIRACY, SUCH AN EXTENSION
AUTOMATICALLY VIOLATES THE CONFRONTATION CLAUSE.  LAST TERM IN
CALIFORNIA V. GREEN, 399 U.S. 149, WE SAID: 

     "OUR TASK IN THIS CASE IS NOT TO DECIDE WHICH OF THESE

  POSITIONS, PURELY AS A MATTER OF THE LAW OF EVIDENCE, IS THE

  SOUNDER.  THE ISSUE BEFORE US IS THE CONSIDERABLY NARROWER ONE OF

  WHETHER A DEFENDANT'S CONSTITUTIONAL RIGHT 'TO BE CONFRONTED WITH

  THE WITNESSES AGAINST HIM' IS NECESSARILY INCONSISTENT WITH A

  STATE'S DECISION TO CHANGE ITS HEARSAY RULES.  . . . WHILE IT MAY

  READILY BE CONCEDED THAT HEARSAY RULES AND THE CONFRONTATION

  CLAUSE ARE GENERALLY DESIGNED TO PROTECT SIMILAR VALUES, IT IS

QUITE A DIFFERENT THING TO SUGGEST THAT THE OVERLAP IS COMPLETE

  AND THAT THE CONFRONTATION CLAUSE IS NOTHING MORE OR LESS THAN A

  CODIFICATION OF THE RULES OF HEARSAY AND THEIR EXCEPTIONS AS THEY

  EXISTED HISTORICALLY AT COMMON LAW.  OUR DECISIONS HAVE NEVER

  ESTABLISHED SUCH A CONGRUENCE; INDEED, WE HAVE MORE THAN ONCE

  FOUND A VIOLATION OF CONFRONTATION VALUES EVEN THOUGH THE

  STATEMENTS IN ISSUE WERE ADMITTED UNDER AN ARGUABLY RECOGNIZED

  HEARSAY EXCEPTION.  THE CONVERSE IS EQUALLY TRUE:  MERELY BECAUSE

  EVIDENCE IS ADMITTED IN VIOLATION OF A LONG-ESTABLISHED HEARSAY

RULE DOES NOT LEAD TO THE AUTOMATIC CONCLUSION THAT CONFRONTATION

  RIGHTS HAVE BEEN DENIED."  ID., AT 155-156. 

THESE OBSERVATIONS HAVE PARTICULAR FORCE IN THE PRESENT CASE.  FOR
THIS COURT HAS NEVER INDICATED THAT THE LIMITED CONTOURS OF THE HEARSAY
EXCEPTION IN FEDERAL CONSPIRACY TRIALS ARE REQUIRED BY THE SIXTH
AMENDMENT'S CONFRONTATION CLAUSE.  TO THE CONTRARY, THE LIMITS OF THIS
HEARSAY EXCEPTION HAVE SIMPLY BEEN DEFINED BY THE COURT IN THE EXERCISE
OF ITS RULE-MAKING POWER IN THE AREA OF THE FEDERAL LAW OF EVIDENCE. 
/12/  IT IS CLEAR THAT THE LIMITED SCOPE OF THE HEARSAY EXCEPTION IN
FEDERAL CONSPIRACY TRIALS IS A PRODUCT, NOT OT THE SIXTH AMENDMENT, BUT
OF THE COURT'S "DISFAVOR" OF "ATTEMPTS TO BROADEN THE ALREADY PERVASIVE
AND WIDE-SWEEPING NETS OF CONSPIRACY PROSECUTIONS."  GRUNEWALD V.
UNITED STATES, 353 U.S. 391, 404.  AS GRUNEWALD, KRULEWITCH, AND OTHER
CASES IN THIS COURT MAKE CLEAR, THE EVIDENTIARY RULE IS INTERTWINED,
NOT ONLY WITH THE FEDERAL SUBSTANTIVE LAW OF CONSPIRACY, BUT ALSO WITH
SUCH RELATED ISSUES AS THE IMPACT OF THE STATUTE OF LIMITATIONS UPON
CONSPIRACY PROSECUTIONS. 

IN THE CASE BEFORE US SUCH POLICY QUESTIONS ARE NOT PRESENT.  EVANS
WAS NOT PROSECUTED FOR CONSPIRACY IN THE GEORGIA COURT, BUT FOR THE
SUBSTANTIVE OFFENSE OF MURDER.  /14/  AT HIS TRIAL THE STATE PERMITTED
THE INTRODUCTION OF EVIDENCE UNDER A LONG-ESTABLISHED AND WELL
RECOGNIZED RULE OF STATE LAW.  /15/  WE CANNOT SAY THAT THE EVIDENTIARY
RULE APPLIED BY GEORGIA VIOLATES THE CONSTITUTION MERELY BECAUSE IT
DOES NOT EXACTLY COINCIDE WITH THE HEARSAY EXCEPTION APPLICABLE IN THE
DECIDEDLY DIFFERENT CONTEXT OF A FEDERAL PROSECUTION FOR THE
SUBSTANTIVE OFFENSE OF CONSPIRACY. 

        II 

IT IS ARGUED, ALTERNATIVELY, THAT IN ANY EVENT EVANS' CONVICTION
MUST BE SET ASIDE UNDER THE IMPACT OF OUR RECENT DECISIONS THAT HAVE
REVERSED STATE COURT CONVICTIONS BECAUSE OF THE DENIAL OF THE
CONSTITUTIONAL RIGHT OF CONFRONTATION.  THE CASES UPON WHICH THE
APPELLEE EVANS PRIMARILY RELIES ARE POINTER V. TEXAS, SUPRA; DOUGLAS V.
ALABAMA, SUPRA; BROOKHART V. JANIS, SUPRA; BARBER V. PAGE, SUPRA; AND
ROBERTS V. RUSSELL, SUPRA. 

IN THE POINTER CASE IT APPEARED THAT A MAN NAMED PHILLIPS HAD BEEN
THE VICTIM OF ROBBERY IN TEXAS.  AT A PRELIMINARY HEARING, PHILLIPS "AS
CHIEF WITNESS FOR THE STATE GAVE HIS VERSION OF THE ALLEGED ROBBERY IN
DETAIL, IDENTIFYING PETITIONER AS THE MAN WHO HAD ROBBED HIM AT
GUNPOINT."  380 U.S. AT 401.  POINTER HAD NO LAWYER AT THIS HEARING AND
DID NOT TRY TO CROSS-EXAMINE PHILLIPS.  AT POINTER'S SUBSEQUENT TRIAL
THE PROSECUTION WAS PERMITTED TO INTRODUCE THE TRANSCRIPT OF PHILLIPS'
TESTIMONY GIVEN AT THE PRELIMINARY HEARING.  THUS, AS THIS COURT HELD,
THE STATE'S "USE OF THE TRANSCRIPT OF THAT STATEMENT AT THE TRIAL
DENIED PETITIONER ANY OPPORTUNITY TO HAVE THE BENEFIT OF COUNSEL'S
CROSS-EXAMINATION OF THE PRINCIPAL WITNESS AGAINST HIM."  380 U.S.,AT
403.  THE DOUGLAS CASE, DECIDED THE SAME DAY AS POINTER, INVOLVED AN
EVEN MORE FLAGRANT VIOLATION OF THE DEFENDANT'S RIGHT OF
CONFRONTATION.  FOR AT DOUGLAS' TRIAL THE PROSECUTOR HIMSELF WAS
PERMITTED TO READ AN "ENTIRE DOCUMENT" PURPORTING TO BE AN ACCOMPLICE'S
WRITTEN CONFESSION AFTER THE ACCOMPLICE HAD REFUSED TO TESTIFY IN
RELIANCE UPON HIS PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION. 
"THE STATEMENTS FROM THE DOCUMENT AS READ BY THE SOLICITOR RECITED IN
CONSIDERABLE DETAIL THE CIRCUMSTANCES LEADING TO AND SURROUNDING THE
ALLEGED CRIME; OF CRUCIAL IMPORTANCE, THEY NAMED THE PETITIONER AS THE
PERSON WHO FIRED THE SHOTGUN BLAST WHICH WOUNDED THE VICTIM."  380
U.S.,AT 417.  IN REVERSING DOUGLAS' CONVICTION, THIS COURT POINTED OUT
THAT THE ACCOMPLICE'S RELIANCE UPON THE PRIVILEGE AGAINST COMPULSORY
SELF-INCRIMINATION "CREATED A SITUATION IN WHICH THE JURY MIGHT
IMPROPERLY INFER BOTH THAT THE STATEMENT HAD BEEN MADE AND THAT IT WAS
TRUE."  380 U.S.,AT 419.  YET, SINCE THE PROSECUTOR WAS "NOT A WITNESS,
THE INFERENCE FROM HIS READING THAT (THE ACCOMPLICE) MADE THE STATEMENT
COULD NOT BE TESTED BY CROSS-EXAMINATION.  SIMILARLY, (THE ACCOMPLICE)
COULD NOT BE CROSS-EXAMINED ON A STATEMENT IMPUTED TO BUT NOT ADMITTED
BY HIM."  IBID. 

BROOKHART V. JANIS AND BARBER V. PAGE ARE EVEN FURTHER AFIELD.  IN
BROOKHART IT APPEARED THAT THE PETITIONER HAD BEEN "DENIED THE RIGHT TO
CROSS-EXAMINE AT ALL ANY WITNESSES WHO TESTIFIED AGAINST HIM," AND
THAT, ADDITIONALLY, "THERE WAS INTRODUCED AS EVIDENCE AGAINST HIM AN
ALLEGED CONFESSION, MADE OUT OF COURT BY ONE OF HIS CO-DEFENDANTS . . .
WHO DID NOT TESTIFY IN COURT."  384 U.S.,AT 4.  THE ONLY ISSUE IN THE
CASE WAS ONE OF WAIVER, SINCE THE STATE PROPERLY CONCEDED THAT SUCH A
WHOLESALE AND COMPLETE "DENIAL OF CROSS-EXAMINATION WITHOUT WAIVER . .
. WOULD BE CONSTITUTIONAL ERROR OF THE FIRST MAGNITUDE.  . . . "  384
U.S.,AT 3.  IN BARBER THE "PRINCIPAL EVIDENCE" AGAINST THE PETITIONER
WAS A TRANSCRIPT OF PRELIMINARY HEARING TESTIMONY ADMITTED BY THE TRIAL
JUDGE UNDER AN EXCEPTION TO THE HEARSAY RULE THAT, BY ITS TERMS, WAS
APPLICABLE ONLY IF THE WITNESS WAS "UNAVAILABLE."  THIS HEARSAY
EXCEPTION "HAS BEEN EXPLAINED AS ARISING FROM NECESSITY.  . . . "  390
U.S.,AT 722, AND WE DECIDED ONLY THAT OKLAHOMA COULD NOT INVOKE THAT
CONCEPT TO USE THE PRELIMINARY HEARING TRANSCRIPT IN THAT CASE WITHOUT
SHOWING "A GOOD-FAITH EFFORT" TO OBTAIN THE WITNESS' PRESENCE AT THE
TRIAL.  ID., AT 725. 

IN ROBERTS V. RUSSELL WE HELD THAT THE DOCTRINE OF BRUTON V. UNITED
STATES, 391 U.S. 123, WAS APPLICABLE TO THE STATES AND WAS TO BE GIVEN
RETROACTIVE EFFECT.  BUT BRUTON WAS A CASE FAR DIFFERENT FROM THE ONE
NOW BEFORE US.  IN THAT CASE THERE WAS A JOINT TRIAL OF THE PETITIONER
AND A CODEFENDANT, COINCIDENTALLY NAMED EVANS, UPON A CHARGE OF ARMED
POSTAL ROBBERY.  A POSTAL INSPECTOR TESTIFIED THAT EVANS HAD CONFESSED
TO HIM THAT EVANS AND THE PETITIONER HAD COMMITTED THE ROBBERY.  THIS
EVIDENCE WAS, CONCEDEDLY, WHOLLY INADMISSIBLE AGAINST THE PETITIONER. 
EVANS DID NOT TESTIFY.  ALTHOUGH THE TRIAL JUDGE INSTRUCTED THE JURY TO
DISREGARD THE EVIDENCE OF EVANS' CONFESSION IN CONSIDERING THE QUESTION
OF THE PETITIONER'S GUILT, WE REVERSED THE PETITIONER'S CONVICTION. 
THE PRIMARY FOCUS OF THE COURT'S OPINION IN BRUTON WAS UPON THE ISSUE
OF WHETHER THE JURY IN THE CIRCUMSTANCES PRESENTED COULD REASONABLY BE
EXPECTED TO HAVE FOLLOWED THE TRIAL JUDGE'S INSTRUCTIONS.  THE COURT
FOUND THAT "(THE RISK OF PREJUDICE IN PETITIONER'S CASE WAS EVEN MORE
SERIOUS THAN IN DOUGLAS," BECAUSE "THE POWERFULLY INCRIMINATING
EXTRAJUDICIAL STATEMENTS OF A CODEFENDANT, WHO STANDS ACCUSED SIDE-BY
SIDE WITH THE DEFENDANT, ARE DELIBERATELY SPREAD BEFORE THE JURY IN A
JOINT TRIAL."  391 U.S.,AT 127, 135-136.  ACCORDINGLY, WE HELD THAT "IN
THE CONTEXT OF A JOINT TRIAL WE CANNOT ACCEPT LIMITING INSTRUCTIONS AS
AN ADEQUATE SUBSTITUTE FOR PETITIONER'S CONSTITUTIONAL RIGHT OF CROSS
EXAMINATION."  391 U.S.,AT 137.  THERE WAS NOT BEFORE US IN BRUTON "ANY
RECOGNIZED EXCEPTION TO THE HEARSAY RULE," AND THE COURT WAS CAREFUL TO
EMPHASIZE THAT "WE INTIMATE NO VIEW WHATEVER THAT SUCH EXCEPTIONS
NECESSARILY RAISE QUESTIONS UNDER THE CONFRONTATION CLAUSE."  391 U.S.,
AT 128 N. 3. 

IT SEEMS APPARENT THAT THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE
AND THE EVIDENTIARY HEARSAY RULE STEM FROM THE SAME ROOTS.  /16/  BUT
THIS COURT HAS NEVER EQUATED THE TWO, /17/  AND WE DECLINE TO DO SO
NOW.  WE CONFINE OURSELVES, INSTEAD, TO DECIDING THE CASE BEFORE US. 

THIS CASE DOES NOT INVOLVE EVIDENCE IN ANY SENSE "CRUCIAL" OR
"DEVASTATING" AS DID ALL THE CASES JUST DISCUSSED.  IT DOES NOT INVOLVE
THE USE, OR MISUSE, OF A CONFESSION MADE IN THE COERCIVE ATMOSPHERE OF
OFFICIAL INTERROGATION, AS DID DOUGLAS, BROOKHART, BRUTON, AND
ROBERTS.  IT DOES NOT INVOLVE ANY SUGGESTION OF PROSECUTORIAL
MISCONDUCT OR EVEN NEGLIGENCE, AS DID POINTER, DOUGLAS, AND BARBER.  IT
DOES NOT INVOLVE A JOINT TRIAL, AS DID BRUTON AND ROBERTS.  AND IT
CERTAINLY DOES NOT INVOLVE THE WHOLESALE DENIAL OF CROSS-EXAMINATION,
AS DID BROOKHART. 

IN THE TRIAL OF THIS CASE NO LESS THAN 20 WITNESSES APPEARED AND
TESTIFIED FOR THE PROSECUTION.  EVANS' COUNSEL WAS GIVEN FULL
OPPORTUNITY TO CROSS-EXAMINE EVERY ONE OF THEM.  THE MOST IMPORTANT
WITNESS, BY FAR, WAS THE EYEWITNESS WHO DESCRIBED ALL THE DETAILS OF
THE TRIPLE MURDER AND WHO WAS CROSS-EXAMINED AT GREAT LENGTH.  OF THE
19 OTHER WITNESSES, THE TESTIMONY OF BUT A SINGLE ONE IS AT ISSUE
HERE.  THAT ONE WITNESS TESTIFIED TO A BRIEF CONVERSATION ABOUT EVANS
HE HAD HAD WITH A FELLOW PRISONER IN THE ATLANTA PENITENTIARY.  THE
WITNESS WAS VIGOROUSLY AND EFFECTIVELY CROSS-EXAMINED BY DEFENSE
COUNSEL.  /18/  HIS TESTIMONY, WHICH WAS OF PERIPHERAL SIGNIFICANCE AT
MOST, WAS ADMITTED IN EVIDENCE UNDER A COCONSPIRATOR EXCEPTION TO THE
HEARSAY RULE LONG ESTABLISHED UNDER STATE STATUTORY LAW.  THE GEORGIA
STATUTE CAN OBVIOUSLY HAVE MANY APPLICATIONS CONSISTENT WITH THE
CONFRONTATION CLAUSE, AND WE CONCLUDE THAT ITS APPLICATION IN THE
CIRCUMSTANCES OF THIS CASE DID NOT VIOLATE THE CONSTITUTION. 

EVANS WAS NOT DEPRIVED OF ANY RIGHT OF CONFRONTATION ON THE ISSUE OF
WHETHER WILLIAMS ACTUALLY MADE THE STATEMENT RELATED BY SHAW.  NEITHER
A HEARSAY NOR A CONFRONTATION QUESTION WOULD ARISE HAD SHAW'S TESTIMONY
BEEN USED TO PROVE MERELY THAT THE STATEMENT HAD BEEN MADE.  THE
HEARSAY RULE DOES NOT PREVENT A WITNESS FROM TESTIFYING AS TO WHAT HE
HAS HEARD; IT IS RATHER A RESTRICTION ON THE PROOF OF FACT THROUGH
EXTRAJUDICIAL STATEMENTS.  FROM THE VIEWPOINT OF THE CONFRONTATION
CLAUSE, A WITNESS UNDER OATH, SUBJECT TO CROSS-EXAMINATION, AND WHOSE
DEMEANOR CAN BE OBSERVED BY THE TRIER OF FACT, IS A RELIABLE INFORMANT
NOT ONLY AS TO WHAT HE HAS SEEN BUT ALSO AS TO WHAT HE HAS HEARD. 
/19/ 

THE CONFRONTATION ISSUE ARISES BECAUSE THE JURY WAS BEING INVITED TO
INFER THAT WILLIAMS HAD IMPLICITLY IDENTIFIED EVANS AS THE PERPETRATOR
OF THE MURDER WHEN HE BLAMED EVANS FOR HIS PREDICAMENT.  BUT WE
CONCLUDE THAT THERE WAS NO DENIAL OF THE RIGHT OF CONFRONTATION AS TO
THIS QUESTION OF IDENTITY.  FIRST, THE STATEMENT CONTAINED NO EXPRESS
ASSERTION ABOUT PAST FACT, AND CONSEQUENTLY IT CARRIED ON ITS FACE A
WARNING TO THE JURY AGAINST GIVING THE STATEMENT UNDUE WEIGHT.  SECOND,
WILLIAMS' PERSONAL KNOWLEDGE OF THE IDENTITY AND ROLE OF THE OTHER
PARTICIPANTS IN THE TRIPLE MURDER IS ABUNDANTLY ESTABLISHED BY TRUETT'S
TESTIMONY AND BY WILLIAMS' PRIOR CONVICTION.  IT IS INCONCEIVABLE THAT
CROSS-EXAMINATION COULD HAVE SHOWN THAT WILLIAMS WAS NOT IN A POSITION
TO KNOW WHETHER OR NOT EVANS WAS INVOLVED IN THE MURDER.  THIRD, THE
POSSIBILITY THAT WILLIAMS' STATEMENT WAS FOUNDED ON FAULTY RECOLLECTION
IS REMOTE IN THE EXTREME.  FOURTH, THE CIRCUMSTANCES UNDER WHICH
WILLIAMS MADE THE STATEMENT WERE SUCH AS TO GIVE REASON TO SUPPOSE THAT
WILLIAMS DID NOT MISREPRESENT EVANS' INVOLVEMENT IN THE CRIME.  THESE
CIRCUMSTANCES GO BEYOND A SHOWING THAT WILLIAMS HAD NO APPARENT REASON
TO LIE TO SHAW.  HIS STATEMENT WAS SPONTANEOUS, AND IT WAS AGAINST HIS
PENAL INTEREST TO MAKE IT.  THESE ARE INDICIA OF RELIABILITY WHICH HAVE
BEEN WIDELY VIEWED AS DETERMINATIVE OF WHETHER A STATEMENT MAY BE
PLACED BEFORE THE JURY THOUGH THERE IS NO CONFRONTATION OF THE
DECLARANT. 

THE DECISIONS OF THIS COURT MAKE IT CLEAR THAT THE MISSION OF THE
CONFRONTATION CLAUSE IS TO ADVANCE A PRACTICAL CONCERN FOR THE ACCURACY
OF THE TRUTH-DETERMINING PROCESS IN CRIMINAL TRIALS BY ASSURING THAT
"THE TRIER OF FACT (HAS) A SATISFACTORY BASIS FOR EVALUATING THE TRUTH
OF THE PRIOR STATEMENT."  CALIFORNIA V. GREEN, 399 U.S.,AT 161.  EVANS
EXERCISED, AND EXERCISED EFFECTIVELY, HIS RIGHT TO CONFRONTATION ON THE
FACTUAL QUESTION WHETHER SHAW HAD ACTUALLY HEARD WILLIAMS MAKE THE
STATEMENT SHAW RELATED.  AND THE POSSIBILITY THAT CROSS-EXAMINATION OF
WILLIAMS COULD CONCEIVABLY HAVE SHOWN THE JURY THAT THE STATEMENT,
THOUGH MADE, MIGHT HAVE BEEN UNRELIABLE WAS WHOLLY UNREAL. 

ALMOST 40 YEARS AGO, IN SNYDER V. MASSACHUSETTS, 291 U.S. 97, MR.
JUSTICE CARDOZO WROTE AN OPINION FOR THIS COURT REFUSING TO SET ASIDE A
STATE CRIMINAL CONVICTION BECAUSE OF THE CLAIMED DENIAL OF THE RIGHT OF
CONFRONTATION.  THE CLOSING WORDS OF THAT OPINION ARE WORTH REPEATING
HERE: 

"THERE IS DANGER THAT THE CRIMINAL LAW WILL BE BROUGHT INTO CONTEMPT
- THAT DISCREDIT WILL EVEN TOUCH THE GREAT IMMUNITIES ASSURED BY THE
FOURTEENTH AMENDMENT-- IF GOSSAMER POSSIBILITIES OF PREJUDICE TO A
DEFENDANT ARE TO NULLIFY A SENTENCE PRONOUNCED BY A COURT OF COMPETENT
JURISDICTION IN OBEDIENCE TO LOCAL LAW, AND SET THE GUILTY FREE."  291
U.S.,AT 122. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED TO THAT COURT FOR CONSIDERATION OF THE OTHER ISSUES PRESENTED
IN THIS HABEAS CORPUS PROCEEDING.  /20/

              IT IS SO ORDERED. 

/1/  THE PARTIES AGREE THAT THIS DEATH SENTENCE CANNOT BE CARRIED
OUT.  SEE N. 10, INFRA. 

/2/  EVANS V. STATE, 222 GA. 392, 150 S.E.2D 240. 

/3/  385 U.S. 953. 

/4/  THE OPINION OF THE DISTRICT COURT IS UNREPORTED. 

/5/ EVANS V. DUTTON, 400 F.2D 826, 827. 

/6/  393 U.S. 1076.  SINCE, AS WILL APPEAR, THE COURT OF APPEALS
HELD THAT A GEORGIA STATUTE RELIED UPON BY THE STATE AT THE TRIAL WAS
UNCONSTITUTIONAL AS APPLIED, THERE CAN BE NO DOUBT OF THE RIGHT OF
APPEAL TO THIS COURT.  28 U.S.C. 1254(2). 

/7/  THREE OF THESE WERE REBUTTAL WITNESSES.  THERE WERE FOUR
DEFENSE WITNESSES, AND EVANS HIMSELF MADE A LENGTHY UNSWORN STATEMENT. 

/8/  GA. CODE ANN. SEC. 38-306 (1954). 

/9/  EVANS V. STATE, 222 GA. 392, 402, 150 S.E.2D 240, 248. 

/10/  400 F.2D, AT 829. 

/11/  400 F.2D, AT 830, 831. 

/12/  POINTER V. TEXAS, 380 U.S.,AT 407.  SEE ALSO SALINGER V.
UNITED STATES, 272 U.S. 542, 548. 

/13/  SEE 18 U.S.C. 3771.  FED RULE CRIM. PROC. 26 PROVIDES: 

"IN ALL TRIALS THE TESTIMONY OF WITNESSES SHALL BE TAKEN ORALLY IN
OPEN COURT, UNLESS OTHERWISE PROVIDED BY AN ACT OF CONGRESS OR BY THESE
RULES.  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." 

SEE HAWKINS V. UNITED STATES, 358 U.S. 74. 

/14/  WE ARE ADVISED THAT AT THE TIME OF EVANS' TRIAL GEORGIA DID
NOT RECOGNIZE CONSPIRACY AS A SEPARATE, SUBSTANTIVE CRIMINAL OFFENSE. 

/15/  THE GEORGIA RULE IS HARDLY UNIQUE.  SEE, E.G., REED V. PEOPLE,
156 COLO. 450, 402 P.2D 68; DAILEY V. STATE, 233 ALA. 384, 171 SO. 729;
STATE V. ROBERTS, 95 KAN. 280, 147 P. 828.  SEE ALSO 2 F. WHARTON,
CRIMINAL EVIDENCE SEC. 430 (12TH ED. 1955); 

"THE ACTS AND DECLARATIONS OF A CONSPIRATOR ARE ADMISSIBLE AGAINST A
CO-CONSPIRATOR WHEN THEY ARE MADE DURING THE PENDENCY OF THE WRONGFUL
ACT, AND THIS INCLUDES NOT ONLY THE PERPETRATION OF THE OFFENSE BUT
ALSO ITS SUBSEQUENT CONCEALMENT . . . .

        .          .          .      . 

"THE THEORY FOR THE ADMISSION OF SUCH EVIDENCE IS THAT PERSONS WHO
CONSPIRE TO COMMIT A CRIME, AND WHO DO COMMIT A CRIME, ARE AS MUCH
CONCERNED, AFTER THE CRIME, WITH THEIR FREEDOM FROM APPREHENSION, AS
THEY WERE CONCERNED, BEFORE THE CRIME, WITH ITS COMMISSION:  THE
CONSPIRACY TO COMMIT THE CRIME DEVOLVES AFTER THE COMMISSION THEREOF
INTO A CONSPIRACY TO AVOID ARREST AND IMPLICATION." 

THE EXISTENCE OF SUCH A HEARSAY EXCEPTION IN THE EVIDENCE LAW OF
MANY STATES WAS RECOGNIZED IN KRULEWITCH, SUPRA.  336 U.S.,AT 444. 

/16/  IT HAS BEEN SUGGESTED THAT THE CONSTITUTIONAL PROVISION IS
BASED ON A COMMON-LAW PRINCIPLE THAT HAD ITS ORIGIN IN A REACTION TO
ABUSES AT THE TRIAL OF SIR WALTER RALEIGH.  F. HELLER, THE SIXTH
AMENDMENT 104 (1951). 

/17/  SEE NOTE, CONFRONTATION AND THE HEARSAY RULE, 75 YALE L.J.
1434: 

"DESPITE THE SUPERFICIAL SIMILARITY BETWEEN THE EVIDENTIARY RULE AND
THE CONSTITUTIONAL CLAUSE, THE COURT SHOULD NOT BE EAGER TO EQUATE
THEM.  PRESENT HEARSAY LAW DOES NOT MERIT A PERMANENT NICHE IN THE
CONSTITUTION; INDEED, ITS RIPENESS FOR REFORM IS A UNIFYING THEME OF
EVIDENCE LITERATURE.  FROM BENTHAM TO THE AUTHORS OF THE UNIFORM RULES
OF EVIDENCE, AUTHORITIES HAVE AGREED THAT PRESENT HEARSAY LAW KEEPS
RELIABLE EVIDENCE FROM THE COURTROOM.  IF POINTER HAS READ INTO THE
CONSTITUTION A HEARSAY RULE OF UNKNOWN PROPORTIONS, REFORMERS MUST
GRAPPLE NOT ONLY WITH CENTURIES OF INERTIA BUT WITH A CONSTITUTIONAL
PROHIBITION AS WELL."  ID., AT 1436.     /18/  THIS CROSS-EXAMINATION
WAS SUCH AS TO CAST SERIOUS DOUBT ON SHAW'S CREDIBILITY AND, MORE
PARTICULARLY, ON WHETHER THE CONVERSATION WHICH SHAW RELATED EVER TOOK
PLACE. 

/19/  OF COURSE EVANS HAD THE RIGHT TO SUBPOENA WITNESSES, INCLUDING
WILLIAMS, WHOSE TESTIMONY MIGHT SHOW THAT THE STATEMENT HAD NOT BEEN
MADE.  COUNSEL FOR EVANS INFORMED US AT ORAL ARGUMENT THAT HE COULD
HAVE SUBPOENAED WILLIAMS BUT HAD CONCLUDED THAT HIS COURSE WOULD NOT BE
IN THE BEST INTERESTS OF HIS CLIENT. 

/20/  IT WAS CONCEDED AT ORAL ARGUMENT THAT THE DEATH PENALTY
IMPOSED IN THIS CASE CANNOT BE CARRIED OUT, BECAUSE THE JURY WAS
QUALIFIED UNDER STANDARDS VIOLATIVE OF WITHERSPOON V. ILLINOIS, 391
U.S. 510.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS ALREADY SET
ASIDE, UNDER WITHERSPOON, THE DEATH SENTENCE IMPOSED UPON VENSON
WILLIAMS, EVANS' ALLEGED ACCOMPLICE.  SEE WILLIAMS V. DUTTON, 400 F.2D
797, 804-805. 

MR. JUSTICE BLACKMUN, WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

I JOIN MR. JUSTICE STEWART'S OPINION.  FOR ME, HOWEVER, THERE IS AN
ADDITIONAL REASON FOR THE RESULT. 

THE SINGLE SENTENCE ATTRIBUTED IN TESTIMONY BY SHAW TO WILLIAMS
ABOUT EVANS, AND WHICH HAS PROLONGED THIS LITIGATION, WAS, IN MY VIEW
AND IN THE LIGHT OF THE ENTIRE RECORD, HARMLESS ERROR IF IT WAS ERROR
AT ALL.  FURTHERMORE, THE CLAIMED CIRCUMSTANCES OF ITS UTTERANCE ARE SO
INCREDIBLE THAT THE TESTIMONY MUST HAVE HURT, RATHER THAN HELPED, THE
PROSECUTION'S CASE.  ON THIS GROUND ALONE, I COULD BE PERSUADED TO
REVERSE AND REMAND. 

SHAW TESTIFIED THAT WILLIAMS MADE THE REMARK AT ISSUE WHEN SHAW
"WENT TO HIS ROOM IN THE HOSPITAL" AND ASKED WILLIAMS HOW HE MADE OUT
AT A COURT HEARING ON THE PRECEDING DAY.  ON CROSS-EXAMINATION, SHAW
STATED THAT HE WAS THEN IN CUSTODY AT THE FEDERAL PENITENTIARY IN
ATLANTA; THAT HE WORKED AS A CLERK IN THE PRISON HOSPITAL; THAT
WILLIAMS WAS LYING ON THE BED IN HIS ROOM AND FACING THE WALL; THAT HE,
SHAW, WAS IN THE HALL AND NOT IN THE ROOM WHEN HE SPOKE WITH WILLIAMS;
THAT THE DOOR TO THE ROOM "WAS CLOSED"; THAT HE SPOKE THROUGH AN
OPENING ABOUT 10 INCHES SQUARE; THAT THE OPENING "HAS A PIECE OF PLATE
GLASS, WINDOW GLASS, JUST ORDINARY WINDOW GLASS, AND A PIECE OF STEEL
MESH"; THAT THIS DOES NOT IMPEDE TALKING THROUGH THE DOOR; AND THAT ONE
TALKS IN A NORMAL VOICE WHEN HE TALKS THROUGH THAT DOOR.  SHAW CONCEDED
THAT WHEN HE HAD TESTIFIED AT WILLIAMS' EARLIER TRIAL, HE MADE NO
REFERENCE TO THE GLASS IN THE OPENING IN THE DOOR. 

CARMEN DAVID MABRY, CALLED BY THE STATE, TESTIFIED THAT HE WAS WITH
THE UNITED STATES PUBLIC HEALTH SERVICE AND STATIONED AT THE ATLANTA
PENITENTIARY.  HE DESCRIBED THE OPENING IN THE DOOR TO WILLIAMS' ROOM
AND SAID THAT IT CONTAINED A GLASS "AND OVER THAT IS A WIRE MESH, HEAVY
STEEL MESH"; THAT HE HAS "NEVER TRIED TO TALK THROUGH THE DOOR"; THAT,
TO HIS KNOWLEDGE, HE HAS NEVER HEARD "OTHER PEOPLE TALKING THROUGH THE
DOOR"; THAT, DURING HIS 11 YEARS AT THE HOSPITAL, THE GLASS HAS NOT
BEEN OUT OF THE DOOR; AND THAT THE HOSPITAL RECORDS DISCLOSED THAT IT
HAD NOT BEEN OUT. 

I AM AT A LOSS TO UNDERSTAND HOW ANY NORMAL JURY, AS WE MUST ASSUME
THIS ONE TO HAVE BEEN, COULD BE LED TO BELIEVE, LET ALONE BE INFLUENCED
BY, THIS ASTONISHING ACCOUNT BY SHAW OF HIS CONVERSTAION WITH WILLIAMS
IN A NORMAL VOICE THROUGH A CLOSED HOSPITAL ROOM DOOR.  I NOTE, ALSO,
THE FIFTH CIRCUIT'S DESCRIPTION OF SHAW'S TESTIMONY AS "SOMEWHAT
INCREDIBLE" AND AS POSSESSING "BASIC INCREDIBILITY."  400 F.2D, AT 828
N. 4. 

IN SAYING ALL THIS, I AM FULLY AWARE THAT THE FIFTH CIRCUIT PANEL
WENT ON TO OBSERVE, IN THE FOOTNOTE JUST CITED, "WE ARE CONVINCED THAT
IT CANNOT BE CALLED HARMLESS."  AND JUSTICE QUILLIAN, IN SOLE DISSENT
ON THE DIRECT APPEAL TO THE SUPREME COURT OF GEORGIA, STATED, "IT
OBVIOUSLY WAS PREJUDICIAL TO THE DEFENDANT."  222 GA. 392, 408; 150
S.E.2D 240, 251.  HOWEVER, NEITHER THE GEORGIA SUPERIOR COURT JUDGE WHO
TRIED THE CASE NOR THE FEDERAL DISTRICT JUDGE WHO HELD THE HEARING ON
EVANS' PETITION FOR FEDERAL HABEAS CONCLUDED THAT PREJUDICIAL ERROR WAS
PRESENT.  ALSO, WE DO NOT KNOW THE ATTITUDE OF THE GEORGIA SUPREME
COURT MAJORITY, FOR THEY DECIDED THE ISSUE STRICTLY UPON THE PRONOUNCED
LIMITS OF THE LONG-ESTABLISHED GEORGIA HEARSAY RULE, 222 GA.,AT 402;
150 S.E.2D, AT 248, AND PRESUMABLY HAD NO OCCASION TO TOUCH UPON ANY
ALTERNATIVE GROUND SUCH A HARMLESSNESS.  I USUALLY WOULD REFRAIN FROM
PASSING UPON AN ISSUE OF THIS KIND ADVERSELY TO A FEDERAL COURT OF
APPEALS, BUT WHEN THE TRIAL JUDGES DO NOT RULE, I WOULD SUPPOSE THAT WE
ARE AS FREE TO DRAW UPON THE COLD RECORD AS IS THE APPELLATE COURT. 

I ADD AN OBSERVATION ABOUT CORROBORATION.  MARION CALVIN PERRY,
ANOTHER FEDERAL PRISONER AND ONE WHO ADMITTED NUMEROUS PAST
CONVICTIONS, INCLUDING "LARCENY OF AUTOMOBILES," TESTIFIED WITHOUT
OBJECTION THAT HE HAD KNOWN WILLIAMS AND EVANS FOR ABOUT 10 YEARS, AND
TRUETT FOR ABOUT TWO YEARS; THAT HE SPOKE WITH WILLIAMS AND EVANS SOME
25 OR 30 DAYS PRIOR TO THE MURDERS OF THE THREE POLICE OFFICERS; THAT
WILLIAMS OWED HIM MONEY; THAT HE AND WILLIAMS TALKED BY TELEPHONE
"ABOUT ME STEALING SOME CARS FOR HIM"; THAT WILLIAMS TOLD HIM THAT
"ALEX (EVANS) WOULD KNOW WHAT KIND OF CAR HE (WILLIAMS) WOULD WANT";
THAT A FEW DAYS LATER "ME AND ALEX TALKED ABOUT CARS AND I TOLD HIM I
DIDN'T WANT TO MESS WITH VENSON (WILLIAMS)"; THAT EVANS SAID, "IF I GOT
ANY, HE SAID I COULD GET THEM FOR HIM"; THAT SEVEN OR EIGHT DAYS BEFORE
THE MURDERS WILLIAMS ASKED HIM BY TELEPHONE WHETHER HE, PERRY, "STILL
HAD THE OLDSMOBILE SWITCH"; THAT THE WEEK OF THE MURDERS HE ARGUED WITH
EVANS ABOUT HOW MUCH HE SHOULD RECEIVE FOR EACH STOLEN CAR; THAT SIX
DAYS AFTER THE MURDERS HE SAW EVANS AT A FILLING STATION; THAT THEY
TALKED ABOUT THE MURDERS; THAT "I SAID IF I WANTED TO KNOW WHO DID IT,
I WOULD SEE MINE AND YOUR FRIEND"; AND THAT EVANS "GOT MAD AS HELL" AND
"TOLD ME IF I THOUGHT I KNOWED ANYTHING ABOUT IT TO KEEP MY DAMN MOUTH
SHUT." 

ANOTHER WITNESS, LAWRENCE H. HARTMAN, TESTIFIED THAT HIS 1963 RED
OLDSMOBILE HARDTOP WAS STOLEN FROM HOME IN ATLANTA THE NIGHT OF APRIL
16, 1964 (THE MURDERS TOOK PLACE ON THE EARLY MORNING OF APRIL 17).  HE
WENT ON TO TESTIFY THAT THE 1963 OLDSMOBILE FOUND BURNING NEAR THE
SCENE OF THE TRAGEDY WAS HIS AUTOMOBILE.  THERE IS TESTIMONY IN THE
RECORD AS TO THE EARLIER ACQUISITION BY EVANS AND WILLIAMS OF ANOTHER
WRECKED OLDSMOBILE OF LIKE MODEL AND COLOR; AS TO THE TOWING OF THAT
DAMAGED CAR BY A WRECKER MANNED BY WILLIAMS AND EVANS; AND AS TO THE
REPLACEMENT OF GOOD TIRES ON A CHEVROLET OCCUPIED BY WILLIAMS, EVANS,
AND TRUETT, WITH RECAPPED TIRES THEN PURCHASED BY THEM. 

THIS RECORD TESTIMONY, IT SEEMS TO ME, BEARS DIRECTLY AND POSITIVELY
ON THE WILLIAMS-EVANS-TRUETT CAR-STEALING CONSPIRACY AND
ACCOMPLISHMENTS AND PROVIDES INDISPUTABLE CONFIRMATION OF EVANS' ROLE. 
THE REQUIREMENTS OF THE GEORGIA CORROBORATION RULE WERE FULLY SATISFIED
AND SHAW'S INCREDIBLE REMARK FADES INTO PRACTICAL AND LEGAL
INSIGNIFICANCE. 

THE ERROR HERE, IF ONE EXISTS, IS HARMLESS BEYOND A REASONABLE
DOUBT.  CHAPMAN V. CALIFORNIA, 386 U.S. 18, 21-25; HARRINGTON V.
CALIFORNIA, 395 U.S. 250. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

NOT SURPRISINGLY THE DIFFICULT CONSTITUTIONAL ISSUE PRESENTED BY
THIS CASE HAS PRODUCED MULTIPLE OPINIONS.  MR. JUSTICE STEWART FINDS
SHAW'S TESTIMONY ADMISSIBLE BECAUSE IT IS "WHOLLY UNREAL" TO SUGGEST
THAT CROSS-EXAMINATION WOULD HAVE WEAKENED THE EFFECT OF WILLIAMS'
STATEMENT ON THE JURY'S MIND.  MR. JUSTICE BLACKMUN, WHILE CONCURRING
IN THIS VIEW, FINDS ADMISSION OF THE STATEMENT TO BE HARMLESS,
SEEMINGLY BECAUSE HE DEEMS SHAW'S TESTIMONY SO OBVIOUSLY FABRICATED
THAT NO NORMAL JURY WOULD HAVE GIVEN IT CREDENCE.  MR. JUSTICE MARSHALL
ANSWERS BOTH SUGGESTIONS TO MY SATISFACTIONS, BUT HE THEN ADOPTS A
POSITION THAT I CANNOT ACCEPT.  HE APPARENTLY WOULD PREVENT THE
PROSECUTION FROM INTRODUCING ANY OUT-OF-COURT STATEMENT OF AN
ACCOMPLICE UNLESS THERE IS AN OPPORTUNITY FOR CROSS-EXAMINATION, AND
THIS REGARDLESS OF THE CIRCUMSTANCES IN WHICH THE STATEMENT WAS MADE
AND REGARDLESS OF WHETHER IT IS EVEN HEARSAY. 

THE DIFFICULTY OF THIS CASE ARISES FROM THE ASSUMPTION THAT THE CORE
PURPOSE OF THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT IS TO
PREVENT OVERLY BROAD EXCEPTIONS TO THE HEARSAY RULE.  I BELIEVE THIS
ASSUMPTION TO BE WRONG.  CONTRARY TO THINGS AS THEY APPEARED TO ME LAST
TERM WHEN I WROTE IN CALIFORNIA V. GREEN, 399 U.S. 149, 172 (1970), I
HAVE SINCE BECOME CONVINCED THAT WIGMORE STATES THE CORRECT VIEW WHEN
HE SAYS: 

"THE CONSTITUTION DOES NOT PRESCRIBE WHAT KINDS OF TESTIMONIAL
STATEMENTS (DYING DECLARATIONS, OR THE LIKE) SHALL BE GIVEN INFRA
JUDICIALLY,-- THIS DEPENDS ON THE LAW OF EVIDENCE FOR THE TIME BEING,--
BUT ONLY WHAT MODE OF PROCEDURE SHALL BE FOLLOWED-- I.E. A CROSS
EXAMINATING PROCEDURE-- IN THE CASE OF SUCH TESTIMONY AS IS REQUIRED BY
THE ORDINARY LAW OF EVIDENCE TO BE GIVEN INFRA-JUDICIALLY."  5
J.WIDMORE, EVIDENCE 1397, AT 131 (3D ED. 1940). 

THE CONVERSION OF A CLAUSE INTENDED TO REGULATE TRIAL PROCEDURE INTO
A THREAT TO MUCH OF THE EXISTING LAW OF EVIDENCE AND TO FUTURE
DEVELOPMENTS IN THAT FIELD IS NOT AN UNNATURAL SHIFT, FOR THE
PARADIGMATIC EVIL THE CONFRONTATION CLAUSE WAS AIMED AT-- TRIAL BY
AFFIDAVIT /1/  -- CAN BE VIEWED ALMOST EQUALLY WELL AS A GROSS
VIOLATION OF THE RULE AGAINST HEARSAY AND AS THE GIVING OF EVIDENCE BY
THE AFFIANT OUT OF THE PRESENCE OF THE ACCUSED AND NOT SUBJECT TO CROSS
EXAMINATION BY HIM.  BUT HOWEVER NATURAL THE SHIFT MAY BE, ONCE MADE IT
CARRIES THE SEEDS OF GREAT MISCHIEF FOR ENLIGHTENED DEVELOPMENT IN THE
LAW OF EVIDENCE. 

IF ONE WERE TO TRANSLATE THE CONFRONTATION CLAUSE INTO LANGUAGE IN
MORE COMMON USE TODAY, IT WOULD READ:  "IN ALL CRIMINAL PROSECUTIONS,
THE ACCUSED SHALL ENJOY THE RIGHT TO BE PRESENT AND TO CROSS-EXAMINE
THE WITNESSES AGAINST HIM."  NOTHING IN THIS LANGUAGE OR IN ITS 18TH
CENTURY EQUIVALENT WOULD CONNOTE A PURPOSE TO CONTROL THE SCOPE OF THE
RULES OF EVIDENCE.  THE LANGUAGE IS PARTICULARLY ILL-CHOSEN IF WHAT WAS
INTENDED WAS A PROHIBITION ON THE USE OF ANY HEARSAY-- THE POSITION
TOWARD WHICH MY BROTHER MARSHALL IS BEING DRIVEN, ALTHOUGH HE DOES NOT
QUITE YET EMBRACE IT. 

NOR AM I NOW CONTENT WITH THE POSITION I TOOK IN CONCURRENCE IN
CALIFORNIA V. GREEN, SUPRA, THAT THE CONFRONTATION CLAUSE WAS DESIGNED
TO ESTABLISH A PREFERENTIAL RULE, REQUIRING THE PROSECUTOR TO AVOID THE
USE OF HEARSAY WHERE IT IS REASONABLY POSSIBLE FOR HIM TO DO SO-- IN
OTHER WORDS, TO PRODUCE AVAILABLE WITNESSES.  FURTHER CONSIDERATION IN
THE LIGHT OF FACTS SQUARELY PRESENTING THE ISSUE, AS GREEN DID NOT, HAS
LED ME TO CONCLUDE THAT THIS IS NOT A HAPPY INTENT TO BE ATTRIBUTED TO
THE FRAMERS ABSENT COMPELLING LINGUISTIC OR HISTORICAL EVIDENCE
POINTING IN THAT DIRECTION.  IT IS COMMON GROUND THAT THE HISTORICAL
UNDERSTANDING OF THE CLAUSE FURNISHES NO SOLID GUIDE TO ADJUDICATION. 
/2/ 

A RULE REQUIRING PRODUCTION OF AVAILABLE WITNESSES WOULD
SIGNIFICANTLY CURTAIL DEVELOPMENT OF THE LAW OF EVIDENCE TO ELIMINATE
THE NECESSITY FOR PRODUCTION OF DECLARANTS WHERE PRODUCTION WOULD BE
UNDULY INCONVENIENT AND OF SMALL UTILITY TO A DEFENDANT.  EXAMPLES
WHICH COME TO MIND ARE THE BUSINESS RECORDS ACT, 28 U.S.C. 1732-1733,
AND THE EXCEPTIONS TO THE HEARSAY RULE FOR OFFICIAL STATEMENTS, LEARNED
TREATISES, AND TRADE REPORTS.  SEE, E.G., UNIFORM RULES OF EVIDENCE
63(15), 63(30), 63(31); GILSTRAP V. UNITED STATES, 389 F.2D 6 (CA5
1968) (BUSINESS RECORDS); KAY V. UNITED STATES, 255 F.2D 476 (CA4 1958)
(LABORATORY ANALYSIS).  IF THE HEARSAY EXCEPTION INVOLVED IN A GIVEN
CASE IS SUCH AS TO COMMEND ITSELF TO REASONABLE MEN, PRODUCTION OF THE
DECLARANT IS LIKELY TO BE DIFFICULT, UNAVAILING, OR POINTLESS.  IN
UNUSUAL CASES, OF WHICH THE CASE AT HAND MAY BE AN EXAMPLE, THE SIXTH
AMENDMENT GUARANTEES FEDERAL DEFENDANTS THE RIGHT OF COMPULSORY PROCESS
TO OBTAIN THE PRESENCE OF WITNESSES, AND IN WASHINGTON V. TEXAS, 388
U.S. 14 (1967), THIS COURT HELD THAT THE FOURTEENTH AMENDMENT EXTENDS
THE SAME PROTECTION TO STATE DEFENDANTS.  /3/ 

REGARDLESS OF THE INTERPRETATION ONE PUTS ON THE WORDS OF THE
CONFRONTATION CLAUSE, THE CLAUSE IS SIMPLY NOT WELL DESIGNED FOR TAKING
INTO ACCOUNT THE NUMEROUS FACTORS THAT MUST BE WEIGHED IN PASSING ON
THE APPROPRIATENESS OF RULES OF EVIDENCE.  THE FAILURE OF MR. JUSTICE
STEWART'S OPINION TO EXPLAIN THE STANDARD BY WHICH IT TESTS SHAW'S
STATEMENT, OR HOW THIS STANDARD CAN BE SQUARED WITH THE SEEMINGLY
ABSOLUTE COMMAND OF THE CLAUSE, BEARS WITNESS TO THE FACT THAT THE
CLAUSE IS BEING SET A TASK FOR WHICH IT IS NOT SUITED.  THE TASK IS FAR
MORE APPROPRIATELY PERFORMED UNDER THE AEGIS OF THE FIFTH AND
FOURTEENTH AMENDMENTS' COMMANDS THAT FEDERAL AND STATE TRIALS,
RESPECTIVELY, MUST BE CONDUCTED IN ACCORDANCE WITH DUE PROCESS OF LAW. 
IT IS BY THIS STANDARD THAT I WOULD TEST FEDERAL AND STATE RULES OF
EVIDENCE.  /4/ 

IT MUST BE RECOGNIZED THAT NOT EVERYTHING WHICH HAS BEEN SAID IN
THIS COURT'S CASES IS CONSISTENT WITH THIS POSITION.  HOWEVER, THIS
APPROACH IS NOT NECESSARILY INCONSISTENT WITH THE RESULTS THAT HAVE
BEEN REACHED.  OF THE MAJOR "CONFRONTATION" DECISIONS OF THIS COURT,
SEVEN INVOLVED THE USE OF PRIOR-RECORDED TESTIMONY.  /5/  IN THE
ABSENCE OF COUNTERVAILING CIRCUMSTANCES, INTRODUCTION OF SUCH EVIDENCE
WOULD BE AN AFFRONT TO THE CORE MEANING OF THE CONFRONTATION CLAUSE. 
THE QUESTION IN EACH CASE, THEREFORE, WAS WHETHER THERE HAD BEEN
ADEQUATE "CONFRONTATION" TO SATISFY THE REQUIREMENT OF THE CLAUSE. 
REGARDLESS OF THE CORRECTNESS OF THE RESULTS, THE HOLDING THAT THE
CLAUSE WAS APPLICABLE IN THOSE SITUATIONS IS CONSISTENT WITH THE VIEW
OF THE CLAUSE I HAVE TAKEN. 

PASSING ON TO THE OTHER PRINCIPAL CASES, DOWDELL V. UNITED STATES,
221 U.S. 325, 330 (1911), HELD THAT THE CONFRONTATION CLAUSE DID NOT
PROHIBIT THE INTRODUCTION OF "DOCUMENTARY EVIDENCE TO ESTABLISH
COLLATERAL FACTS, ADMISSIBLE UNDER THE COMMON LAW."  WHILE THIS WAS
CHARACTERIZED AS AN EXCEPTION TO THE CLAUSE, RATHER THAN A PROBLEM TO
WHICH THE CLAUSE DID NOT SPEAK, THE RESULT WOULD SEEM CORRECT. 
BROOKHART V. JANIS, 384 U.S. 1 (1966), AND SMITH V. ILLINOIS, 390 U.S.
129 (1968 ), INVOLVED RESTRICTIONS ON THE RIGHT TO CROSS-EXAMINATION OR
THE WHOLESALE DENIAL OF THAT RIGHT.  DOUGLAS V. ALABAMA, 380 U.S. 415
(1965), IS PERHAPS MOST EASILY DEALT WITH BY VIEWING IT AS A CASE OF
PROSECUTIRIAL MISCONDUCT.  ALTERNATIVELY, I WOULD BE PREPARED TO HOLD
AS A MATTER OF DUE PROCESS THAT A CONFESSION OF AN ACCOMPLICE RESULTING
FROM FORMAL POLICE INTERROGATION CANNOT BE INTRODUCED AS EVIDENCE OF
THE GUILT OF AN ACCUSED, ABSENT SOME CIRCUMSTANCE INDICATING
AUTHORIZATION OR ADOPTION.  THE EXCLUSIVE OF SUCH EVIDENCE DATES AT
LEAST FROM TONG'S CASE, KELYNG 17, 18-19, 84 ENG.REP.  1061, 1062 (K.B.
1663), AND IS UNIVERSALLY ACCEPTED.  THIS THEORY WOULD BE ADEQUATE TO
ACCOUNT FOR THE RESULTS OF BOTH DOUGLAS AND BRUTON V. UNITED STATES,
391 U.S. 123 (1968). 

THE REMAINING CONFRONTATION CASE OF SIGNIFICANCE IS KIRBY V. UNITED
STATES, 174 U.S. 47 (1899).  IN THAT CASE A RECORD OF CONVICTION OF
THREE MEN FOR THEFT WAS INTRODUCED AT KIRBYS TRIAL.  THE JUDGE
INSTRUCTED THE JURY THAT THIS JUDGMENT WAS PRIMA FACIE EVIDENCE THAT
THE GOODS WHICH KIRBY WAS ACCUSED OF RECEIVING FROM THE THREE MEN WERE
IN FACT STOLEN.  THIS COURT REVERSED, HOLDING THAT SINCE THE JUDGMENT
WAS THE SOLE EVIDENCE OF THE FACT OF THEFT, KIRBY HAD BEEN DENIED HIS
RIGHT OF CONFRONTATION.  IN MY VIEW THIS IS NOT A CONFRONTATION CASE AT
ALL, BUT A MATTER OF THE SUBSTANTIVE LAW OF JUDGMENTS.  ACCORD, 4
WIGMORE, SUPRA, SEC. 1079, AT 133.  INDEED, THE KIRBY COURT INDICATED
THAT LACK OF CONFRONTATION WAS NOT AT THE HEART OF ITS OBJECTION WHEN
IT SAID THAT THE RECORD WOULD HAVE BEEN COMPETENT EVIDENCE OF THE FACT
OF CONVICTION.  THE CORRECTNESS OF THE RESULT IN KIRBY CAN HARDLY BE
DOUBTED, BUT IT WAS, I THINK, BASED ON THE WRONG LEGAL THEORY. 

JUDGING THE GEORGIA STATUTE HERE CHALLENGED BY THE STANDARDS OF DUE
PROCESS, I CONCLUDE THAT IT MUST BE SUSTAINED.  ACCOMPLISHMENT OF THE
MAIN OBJECT OF A CONSPIRACY WILL SELDOM TERMINATE THE COMMUNITY OF
INTEREST OF THE CONSPIRATORS.  DECLARATIONS AGAINST THAT INTEREST
EVINCE SOME LIKELIHOOD OF TRUSTWORTHINESS.  THE JURY, WITH THE GUIDANCE
OF DEFENSE COUNSEL, SHOULD BE ALERT TO THE OBVIOUS DANGERS OF CREDITING
SUCH TESTIMONY.  AS A PRACTICAL MATTER, UNLESS THE OUT-OF-COURT
DECLARATION CAN BE PROVED BY HEARSAY EVIDENCE, THE FACTS IT REVEALS ARE
LIKELY TO REMAIN HIDDEN FROM THE JURY BY THE DECLARANT'S INVOCATION OF
THE PRIVILEGE AGAINST SELF-INCRIMINATION.  /6/  IN LIGHT OF SUCH
CONSIDERATIONS, A PERSON WEIGHING THE NECESSITY FOR HEARSAY EVIDENCE OF
THE TYPE HERE INVOLVED AGAINST THE DANGER THAT A JURY WILL GIVE IT
UNDUE CREDIT MIGHT REASONABLY CONCLUDE THAT ADMISSION OF THE EVIDENCE
WOULD INCREASE THE LIKELIHOOD OF JUST DETERMINATIONS OF TRUTH. 
APPELLEE HAS NOT SUGGESTED THAT SHAW'S TESTIMONY POSSESSED ANY PECULIAR
CHARACTERISTIC THAT WOULD LESSEN THE FORCE OF THESE GENERAL
CONSIDERATIONS AND REQUIRE, AS A CONSTITUTIONAL MATTER, THAT THE TRIAL
JUDGE EXERCISE RESIDUAL DISCRETION TO EXCLUDE THE EVIDENCE AS UNDULY
INFLAMMATORY.  EXCLUSION OF SUCH STATEMENTS, AS IS DONE IN THE FEDERAL
COURTS, COMMENDS ITSELF TO ME, BUT I CANNOT SAY THAT IT IS ESSENTIAL TO
A FAIR TRIAL.  THE DUE PROCESS CLAUSE REQUIRES NO MORE. 

ON THE PREMISES DISCUSSED IN THIS OPINION, I CONCUR IN THE REVERSAL
OF THE JUDGMENT BELOW. 

/1/  SEE CALIFORNIA V. GREEN, SUPRA, AT 179 (CONCURRING OPINION):
HISTORICALLY, "THE CONFRONTATION CLAUSE WAS MEANT TO CONSTITUTIONALIZE
A BARRIER AGAINST FLAGRANT ABUSES, TRIAL BY ANONYMOUS ACCUSERS, AND
ABSENTEE WITNESSES." 

/2/  SEE ID., AT 175-179, ESPECIALLY 176 N. 8 (CONCURRING OPINION). 

/3/  ALTHOUGH THE FACT IS NOT NECESSARY TO MY CONCLUSTION, I NOTE
THAT COUNSEL FOR EVANS CONCEDED AT ORAL ARGUMENT THAT HE COULD HAVE
SECURED WILLIAMS' PRESENCE TO TESTIFY, BUT DECIDED AGAINST IT.  TR. OF
ORAL ARG. 51, 55. 

/4/  RELIANCE ON THE DUE PROCESS CLAUSES WOULD ALSO HAVE THE VIRTUE
OF SUBJECTING RULES OF EVIDENCE TO CONSTITUTIONAL SCURINY IN CIVIL AND
CRIMINAL TRIALS ALIKE.  IT IS EXCEEDINGLY RARE FOR THE COMMON LAW TO
MAKE ADMISSIBILITY OF EVIDENCE TURN ON WHETHER THE PROCEEDING IS CIVIL
OR CRIMINAL IN NATURE.  SEE 1 WIGMORE, SUPRA, SEC. 4, AT 16-17.  THIS
FEATURE OF OUR JURISPRUDENCE IS A FURTHER INDICATION THAT THE
CONFRONTATION CLAUSE, WHICH APPLIES ONLY TO CRIMINAL PROSECUTIONS, WAS
NEVER INTENDED AS A CONSTITUTIONAL STANDARD FOR TESTING RULES OF
EVIDENCE. 

/5/  REYNOLDS V. UNITED STATES, 98 U.S. 145 (1879); MATTOX V. UNITED
STATES, 156 U.S. 237 (1895); MOTES V. UNITED STATES, 178 U.S. 458
(1900); WEST V. LOUISIANA, 194 U.S. 258 (1904); POINTER V. TEXAS, 380
U.S. 400 (1965); BARBER V. PAGE, 390 U.S. 719 (1968); CALIFORNIA V.
GREEN, 399 U.S. 149 (1970). 

/6/  QUITE APART FROM MALLOY V. HOGAN, 378 U.S. 1 (1964), GEORGIA
HAS LONG RECOGNIZED THE PRIVILEGE.  THE GEORGIA CONSTITUTION OF 1877,
ART. I, SEC. 1, PARA. VI, PROVIDED THAT:  "NO PERSON SHALL BE COMPELLED
TO GIVE TESTIMONY TENDING IN ANY MANNER TO CRIMINATE HIMSELF," AND THE
SAME LANGUAGE APPEARS IN THE PRESENT STATE CONSTITUTION.  GA. CONST. OF
1945, ART. I, SEC. A, PARA. VI.  THE RIGHT HAD PREVIOUSLY BEEN
RECOGNIZED AS A MATTER OF COMMON LAW, EVEN IN CIVIL TRIALS.  SEE E.G.,
MARSHALL V. RILEY, 7 GA. 367 (1849). 

MR. JUSTICE MARSHALL, WHOM MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS,
AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

APPELLEE EVANS WAS CONVICTED OF FIRST-DEGREE MURDER AFTER A TRIAL IN
WHICH A WITNESS NAMED SHAW WAS ALLOWED TO TESTIFY, OVER COUNSEL'S
STRENUOUS OBJECTION, ABOUT A STATEMENT HE CLAIMED WAS MADE TO HIM BY
WILLIAMS, AN ALLEGED ACCOMPLICE WHO HAD ALREADY BEEN CONVICTED IN A
SEPARATE TRIAL.  /1/  ACCORDING TO SHAW, THE STATEMENT, WHICH
IMPLICATED BOTH WILLIAMS AND EVANS IN THE CRIME, WAS MADE IN A PRISON
CONVERSATION IMMEDIATELY AFTER WILLIAMS' ARRAIGNMENT.  WILLIAMS DID NOT
TESTIFY NOR WAS HE CALLED AS A WITNESS.  NEVERTHELESS, THE COURT TODAY
CONCLUDES THAT ADMISSION OF THE EXTRAJUDICIAL STATEMENT ATTRIBUTED TO
AN ALLEGED PARTNER IN CRIME DID NOT DENY EVANS THE RIGHT "TO BE
CONFRONTED WITH THE WITNESSES AGAINST HIM" GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE CONSTITUTION.  IN SO DOING, THE MAJORITY
REACHES A RESULT COMPLETELY INCONSISTENT WITH RECENT OPINIONS OF THIS
COURT, ESPECIALLY DOUGLAS V. ALABAMA, 380 U.S. 415 (1965), AND BRUTON
V. UNITED STATES, 391 U.S. 123 (1968).  IN MY VIEW, THOSE CASES FULLY
APPLY HERE AND ESTABLISH A CLEAR VIOLATION OF EVANS' CONSTITUTIONAL
RIGHTS. 

IN POINTER V. TEXAS, 380 U.S. 400 (1965), THIS COURT FIRST HELD THAT
"THE SIXTH AMENDMENT'S RIGHT OF AN ACCUSED TO CONFRONT THE WITNESSES
AGAINST HIM IS . . . A FUNDAMENTAL RIGHT AND IS MADE OBLIGATORY ON THE
STATES BY THE FOURTEENTH AMENDMENT."  ID., AT 403.  THAT DECISION HELD
CONSTITUTIONALLY INADMISSIBLE A STATEMENT OFFERED AGAINST A DEFENDANT
AT A STATE TRIAL WHERE THE STATEMENT WAS ORIGINALLY MADE AT A
PRELIMINARY HEARING UNDER CIRCUMSTANCES NOT AFFORDING THE DEFENDANT AN
ADEQUATE OPPORTUNITY FOR CROSS-EXAMINATION.  INDEED, WE HAVE SINCE HELD
THAT EVEN CROSS-EXAMINATION AT A PRIOR HEARING DOES NOT SATISFY THE
CONFRONTATION REQUIREMENT, AT LEAST WHERE THE WITNESS WHO MADE THE
STATEMENT IS AVAILABLE TO BE CALLED AT TRIAL.  BARBER V. PAGE, 390 U.S.
719 (1968).  "THE RIGHT TO CONFRONTATION IS BASICALLY A TRIAL RIGHT. 
IT INCLUDES BOTH THE OPPORTUNITY TO CROSS-EXAMINE AND THE OCCASION FOR
THE JURY TO WEIGH THE DEMEANOR OF THE WITNESS."  ID., AT 725. 

IN DOUGLAS V. ALABAMA, SUPRA, THIS COURT APPLIED THE PRINCIPLES OF
POINTER TO A CASE STRIKINGLY SIMILAR TO THIS ONE.  THERE, AS HERE, THE
STATE CHARGED TWO DEFENDANTS WITH A CRIME AND TRIED THEM IN SEPARATE
TRIALS.  THERE, AS HERE, THE STATE FIRST PROSECUTED ONE DEFENDANT
(LOYD) AND THEN USED A STATEMENT BY HIM IN THE TRIAL OF THE SECOND
DEFENDANT (DOUGLAS).  ALTHOUGH THE STATE CALLED LOYD AS A WITNESS, AN
APPEAL FROM HIS CONVICTION WAS PENDING AND HE REFUSED TO TESTIFY ON THE
GROUND THAT DOING SO WOULD VIOLATE HIS FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION. 

WITHOUT REACHING THE QUESTION WHETHER THE PRIVILEGE WAS PROPERLY
INVOKED, /2/  THE COURT HELD THAT THE PROSECUTOR'S READING OF LOYD'S
STATEMENT IN A PURPORTED ATTEMPT TO REFRESH HIS MEMORY DENIED DOUGLAS'
RIGHT TO CONFRONTATION.  "LOYD COULD NOT BE CROSS-EXAMINED ON A
STATEMENT IMPUTED TO BUT NO ADMITTED BY HIM."  380 U.S.,AT 419.  OF
COURSE, DOUGLAS WAS PROVIDED THE OPPORTUNITY TO CROSS-EXAMINE THE
OFFICERS WHO TESTIFIED REGARDING LOYD'S STATEMENT.  "BUT SINCE THEIR
EVIDENCE TENDED TO SHOW ONLY THAT LOYD MADE THE CONFESSION, CROSS
EXAMINATION OF THEM.  . . COULD NOT SUBSTITUTE FOR CROSS-EXAMINATION OF
LOYD TO TEST THE TRUTH OF THE STATEMENT ITSELF."  /3/  ID., AT 420. 
SURELY, THE SAME REASONING COMPELS THE EXCLUSION OF SHAW'S TESTIMONY
HERE.  INDEED, THE ONLY SIGNIFICANT DIFFERENCE BETWEEN DOUGLAS AND THIS
CASE, INSOFAR AS THE DENIAL OF THE OPPORTUNITY TO CROSS-EXAMINE IS
CONCERNED, IS THAT HERE THE STATE DID NOT EVEN ATTEMPT TO CALL WILLIAMS
TO TESTIFY IN EVANS'  TRIAL.  HE WAS PLAINLY AVAILABLE TO THE STATE,
AND FOR ALL WE KNOW HE WOULD HAVE WILLINGLY TESTIFIED, AT LEAST WITH
REGARD TO HIS ALLEGED CONVERSATION WITH SHAW.  /4/ 

FINALLY, WE HAVE APPLIED THE REASONING OF DOUGLAS TO HOLD THAT,
"DESPITE INSTRUCTIONS TO THE JURY TO DISREGARD THE IMPLICATING
STATEMENTS IN DETERMINING THE CODEFENDANT'S GUILT OR INNOCENCE,
ADMISSION AT A JOINT TRIAL OF A DEFENDANT'S EXTRAJUDICIAL CONFESSION
IMPLICATING A CODEFENDANT VIOLATED THE CODEFENDANT'S RIGHT OF CROSS
EXAMINATION SECURED BY THE CONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT."  ROBERTS V. RUSSELL, 392 U.S. 293 (1968), GIVING
RETROACTIVE EFFECT IN BOTH STATE AND FEDERAL TRIALS TO BRUTON V. UNITED
STATES, 391 U.S. 123 (1968).  THUS WILLIAMS' ALLEGED STATEMENT, AN
EXTRAJUDICIAL ADMISSION MADE TO A FELLOW PRISONER, COULD NOT EVEN HAVE
BEEN INTRODUCED AGAINST WILLIAMS IF HE HAD BEEN TRIED IN A JOINT TRIAL
WITH EVANS. 

THE TEACHING OF THIS LINE OF CASES SEEMS CLEAR:  ABSENT THE
OPPORTUNITY FOR CROSS-EXAMINATION, TESTIMONY ABOUT THE IMCRIMINATING
AND IMPLICATING STATEMENT ALLEGEDLY MADE BY WILLIAMS WAS
CONSTITUTIONALLY INADMISSIBLE IN THE TRIAL OF EVANS. 

MR. JUSTICE STEWART'S OPINION FOR REVERSAL CHARACTERIZES AS "WHOLLY
UNREAL" THE POSSIBILITY THAT CROSS-EXAMINATION OF WILLIAMS HIMSELF
WOULD CHANGE THE PICTURE PRESENTED BY SHAW'S ACCOUNT.  A TRIAL LAWYER
MIGHT WELL DOUBT, AS AN ARTICLE OF THE SKEPTICAL FAITH OF THAT
PROFESSION, SUCH A CATEGORICAL PROPHECY ABOUT THE LIKELY RESULTS OF
CAREFUL CROSS-EXAMINATION.  INDEED, THE FACTS OF THIS CASE CLEARLY
DEMONSTRATE THE NECESSITY FOR FULLER FACTUAL DEVELOPMENT WHICH THE
CORRECTIVE TEST OF CROSS-EXAMINATION MAKES POSSIBLE.  THE PLURALITY FOR
REVERSAL PIGEONHOLES THE OUT-OF-COURT STATEMENT THAT WAS ADMITTED IN
EVIDENCE AS A "SPONTANEOUS" UTTERANCE, HENCE TO BE BELIEVED.  AS THE
COURT OF APPEALS CONCLUDED, HOWEVER, THERE IS GREAT DOUBT THAT WILLIAMS
EVEN MADE THE STATEMENT ATTRIBUTED TO HIM.  /5/  MOREOVER, THERE
REMAINS THE FURTHER QUESTION WHAT, IF ANYTHING, WILLIAMS MIGHT HAVE
MEANT BY THE REMARK THAT SHAW RECOUNTED.  MR. JUSTICE STEWART'S OPINION
CONCEDES THAT THE REMARK IS AMBIGUOUS.  PLAINLY IT STANDS AS AN
ACCUSATION OF SOME SORT: "IF IT HADN'T BEEN FOR . . . EVANS," SAID
WILLIAMS, ACCORDING TO SHAW, "WE WOULDN'T BE IN THIS NOW."  AT HIS
TRIAL EVANS HIMSELF GAVE UNSWORN TESTIMONY TO THE EFFECT THAT THE
MURDER PROSECUTION MIGHT HAVE ARISEN FROM ENMITIES THAT EVANS' OWN LAW
ENFORCEMENT ACTIVITIES HAD STIRRED UP IN THE LOCALITY.  DID WILLIAMS'
ACCUSATION RELATE TO EVANS AS A MAN WITH POWERFUL AND UNSCRUPULOUS
ENEMIES, OR EVANS AS A MURDERER?  MR. JUSTICE STEWART'S OPINION OPTS
FOR THE LATTER INTERPRETATION, FOR IT CONCLUDES THAT WILLIAMS' REMARK
WAS "AGAINST HIS PENAL INTEREST" AND HENCE TO BE BELIEVED.  BUT AT THIS
GREAT DISTANCE FROM EVENTS, NO ONE CAN BE CERTAIN.  THE POINT IS THAT
ABSENT CROSS-EXAMINATION OF WILLIAMS HIMSELF, THE JURY WAS LEFT WITH
ONLY THE UNELUCIDATED, APPARENTLY DAMNING, AND PATENTLY DAMAGING
ACCUSATION AS TOLD BY SHAW. 

THUS WE HAVE A CASE WITH ALL THE UNANSWERED QUESTIONS THAT THE
CONFRONTATION OF WITNESSES THROUGH CROSS-EXAMINATION IS MEANT TO AID IN
ANSWERING:  WHAT DID THE DECLARANT SAY, AND WHAT DID HE MEAN, AND WAS
IT THE TRUTH?  IF WILLIAMS HAD TESTIFIED AND BEEN CROSS-EXAMINED,
EVANS' COUNSEL COULD HAVE FULLY EXPLORED THESE AND OTHER MATTERS.  THE
JURY THEN COULD HAVE EVALUATED THE STATEMENT IN THE LIGHT OF WILLIAMS'
TESTIMONY AND DEMEANOR.  AS IT WAS, HOWEVER, THE STATE WAS ABLE TO USE
SHAW TO PRESENT THE DAMAGING EVIDENCE AND THUS TO AVOID CONFRONTING
EVANS WITH THE PERSON WHO ALLEGEDLY GAVE WITNESS AGAINST HIM.  I HAD
THOUGHT THAT THIS WAS PRECISELY WHAT THE CONFRONTATION CLAUSE AS
APPLIED TO THE STATES IN POINTER AND OUR OTHER CASES PREVENTED. 

ALTHOUGH MR. JUSTICE STEWART'S OPINION FOR REVERSAL CONCLUDES THAT
THERE WAS NO VIOLATION OF EVANS' RIGHT OF CONFRONTATION, IT DOES SO IN
THE COMPLETE ABSENCE OF AUTHORITY OR REASONING TO EXPLAIN THAT RESULT. 
FOR EXAMPLE, SUCH FACTS AS THAT WILLIAMS' ALLEGED STATEMENT WAS NOT
MADE DURING OFFICIAL INTERROGATION, WAS NOT IN TRANSCRIPT FORM, AND WAS
NOT INTRODUCED IN A JOINT TRIAL-- THOUGH THEY DIFFERENTIATE SOME OF THE
CASES-- ARE SURELY IRRELEVANT.  OTHER CASES HAVE PRESENTED EACH OF
THESE FACTORS, /6/  AND NO REASON IS OFFERED WHY THE RIGHT OF
CONFRONTATION COULD BE SO LIMITED. 

NOR CAN IT BE ENOUGH THAT THE STATEMENT WAS ADMITTED IN EVIDENCE
"UNDER A LONG-ESTABLISHED AND WELL-RECOGNIZED RULE OF STATE LAW."  MR.
JUSTICE STEWART'S OPINION SURELY DOES NOT MEAN THAT A DEFENDANT'S
CONSTITUTIONAL RIGHT OF CONFRONTATION MUST GIVE WAY TO A STATE
EVIDENTIARY RULE.  THAT MUCH IS ESTABLISHED BY OUR DECISION IN BARBER
V. PAGE, SUPRA, WHICH HELD UNCONSTITUTIONAL THE ADMISSION OF TESTIMONY
IN ACCORDANCE WITH A RULE SIMILARLY WELL RECOGNIZED AND LONG
ESTABLISHED.  HOWEVER, THE PLURALITY FOR REVERSAL NEITHER SUCCEEDS IN
DISTINGUISHING THAT CASE NOR CONSIDERS GENERALLY THAT THERE ARE
INEVITABLY CONFLICTS BETWEEN POINTER AND STATE EVIDENTIARY RULES. 
RATHER, IT ATTEMPTS TO BUTTRESS ITS CONCLUSION MERELY BY ANNOUNCING A
RELUCTANCE TO EQUATE EVIDENTIARY HEARSAY RULES AND THE CONFRONTATION
CLAUSE.  /7/     THE COURT OF APPEALS, HOWEVER, WAS NOT OF THE VIEW
THAT THE CONFRONTATION CLAUSE IMPLIES UNRELENTING HOSTILITY TO WHATEVER
EVIDENCE MAY BE CLASSIFIED AS HEARSAY.  NOR DID THAT COURT HOLD THAT
STATES MUST CONFORM THEIR EVIDENTIARY RULES TO THE HEARSAY EXCEPTIONS
APPLICABLE IN FEDERAL CONSPIRACY TRIALS.  WHILE IT DID NOTE THAT THIS
CASE DOES NOT IN REALITY EVEN INVOLVE THE TRADITIONAL HEARSAY RULE AND
ITS SO CALLED COCONSPIRATORS EXCEPTION, /8/  THAT WAS NOT THE BASIS FOR
ITS DECISION.  RATHER, THE COURT OF APPEALS FOUND IN THE ADMISSION OF
AN INCRIMINATORY AND INCULPATING STATEMENT ATTRIBUTED TO AN ALLEGED
ACCOMPLICE WHO WAS NOT MADE AVAILABLE FOR CROSS-EXAMINATION WHAT IT
TERMED AN OBVIOUS ABRIDGMENT OF EVANS' RIGHT OF CONFRONTATION.  SINCE
THE STATE PRESENTED NO SATISFACTORY JUSTIFICATION FOR THE DENIAL OF
CONFRONTATION, CF. POINTER V. TEXAS, 380 U.S.AT 407, THE COURT OF
APPEALS HELD THAT UNDER DOUGLAS V. ALABAMA AND THIS COURT'S OTHER CASES
EVANS WAS DENIED HIS CONSTITUTIONAL RIGHTS. 

SURELY THE CONSTITUTION REQUIRES AT LEAST THAT MUCH WHEN THE STATE
DENIES A DEFENDANT THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE
WITNESSES AGAINST HIM IN A CRIMINAL TRIAL.  IN ANY CASE, THAT SHAW'S
TESTIMONY WAS ADMITTED IN ACCORDANCE WITH AN ESTABLISHED RULE OF STATE
LAW CANNOT AID MY BRETHREN IN REACHING THEIR CONCLUSION.  CARRIED TO
ITS LOGICAL END, JUSTIFICATION OF A DENIAL OF THE RIGHT OF
CONFRONTATION ON THAT BASIS WOULD PROVIDE FOR THE WHOLESALE AVOIDANCE
OF THIS COURT'S DECISIONS IN DOUGLAS AND BRUTON, /9/  DECISIONS WHICH
MR. JUSTICE STEWART'S OPINION ITSELF REAFFIRMS.  INDEED, IF THAT
OPINION MEANT WHAT IT SAYS, IT WOULD COME VERY CLOSE TO ESTABLISHING IN
REVERSE THE VERY EQUATION IT SEEKS TO AVOID-- AN EQUATION THAT WOULD
GIVE ANY EXCEPTION TO STATE HEARSAY RULE A "PERMANENT NICHE IN THE
CONSTITUTION" IN THE FORM OF AN EXCEPTION TO THE CONFRONTATION CLAUSE
AS WELL. 

FINALLY, THE PLURALITY FOR REVERSAL APPARENTLY DISTINGUISHES THE
PRESENT CASE ON THE GROUND THAT IT "DOES NOT INVOLVE EVIDENCE IN ANY
SENSE 'CRUCIAL' OR 'DEVASTATING.'"  DESPITE THE CHARACTERIZATION OF
SHAW'S TESTIMONY AS "OF PERIPHERAL SIGNIFICANCE AT MOST," HOWEVER, THE
POSSIBILITY OF ITS PREJUDICE TO EVANS WAS VERY REAL.  THE OUTCOME OF
EVANS TRIAL RESTED, IN ESSENCE, ON WHETHER THE JURY WOULD BELIEVE THE
TESTIMONY OF TRUETT WITH REGARD TO EVANS' ROLE IN THE MURDER.  TRUETT
SPOKE AS AN ADMITTED ACCOMPLICE WHO HAD BEEN IMMUNIZED FROM
PROSECUTION.  RELYING ON GEORGIA LAW, NOT FEDERAL CONSTITUTIONAL LAW,
THE TRIAL JUDGE INSTRUCTED THE JURY THAT "YOU CANNOT LAWFULLY CONVICT
UPON THE TESTIMONY OF AN ACCOMPLICE ALONE.  . . . THE TESTIMONY OF AN
ACCOMPLICE MUST BE CORROBORATED.  . . . THE CORROBORATION . . . MUST BE
SUCH AS TO CONNECT THE DEFENDANT WITH THE CRIMINAL ACT."  THE STATE
PRESENTED THE TESTIMONY OF A NUMBER OF OTHER WITNESSES, IN ADDITION TO
THAT OF THE ALLEGED ACCOMPLICE THAT TENDED TO CORROBORATE EVANS'
GUILT.  BUT SHAW'S ACCOUNT OF WHAT WILLIAMS SUPPOSEDLY SAID TO HIM WAS
UNDOUBTEDLY A PART OF THAT CORROBORATING EVIDENCE.  /10/ 

INDEED, MR. JUSTICE STEWART'S OPINION DOES NOT ITSELF UPSET THE
COURT OF APPEALS' FINDING THAT THE ADMISSION OF SHAW'S TESTIMONY, IF
ERRONEOUS, COULD NOT BE CONSIDERED HARMLESS.  BEYOND AND APART FROM THE
QUESTION OF HARMLESS ERROR, MR. JUSTICE STEWART UNDERTAKES AN INQUIRY,
THE PURPOSE OF WHICH I DO NOT UNDERSTAND, INTO WHETHER THE EVIDENCE
ADMITTED IS "CRUCIAL" OR "DEVASTATING."  THE VIEW IS, APPARENTLY, THAT
TO REQUIRE THE EXCLUSION OF EVIDENCE FALLING SHORT OF THAT HIGH
STANDARD OF PREJUDICE WOULD BRING A MOMENT OF CLAMOR AGAINST THE BILL
OF RIGHTS.  I WOULD ESCHEW SUCH WORRIES AND CONFINE THE INQUIRY TO THE
TRADITIONAL QUESTIONS:  WAS THE DEFENDANT AFFORDED THE RIGHT TO
CONFRONT THE WITNESS AGAINST HIM?  AND, IF NOT, WAS THE DENIAL OF HIS
CONSTITUTIONAL RIGHT HARMLESS BEYOND A REASONABLE DOUBT? 

THE FACT IS THAT EVANS MAY WELL HAVE BEEN CONVICTED IN PART BY AN
INCRIMINATORY AND IMPLICATING STATEMENT ATTRIBUTED TO AN ALLEGED
ACCOMPLICE WHO DID NOT TESTIFY AND WHO CONSEQUENTLY COULD NOT BE
QUESTIONED REGARDING THE TRUTH OR MEANING OF THAT STATEMENT.  THE COURT
OF APPEALS CORRECTLY RECOGNIZED THAT THE CONFRONTATION CLAUSE PROHIBITS
SUCH A RESULT, WHETHER THE STATEMENT IS INTRODUCED UNDER THE GUISE OF
REFRESHING A WITNESS' RECOLLECTION AS IN DOUGLAS V. ALABAMA, AGAINST A
CODEFENDANT WITH A LIMITING INSTRUCTION AS IN BRUTON V. UNITED STATES,
OR IN ACCORDANCE WITH SOME OTHER EVIDENTIARY RULE AS HERE. 

I AM TROUBLED BY THE FACT THAT THE PLURALITY FOR REVERSAL, UNABLE
WHEN ALL IS SAID TO PLACE THIS CASE BEYOND THE PRINCIPLED REACH OF OUR
PRIOR DECISIONS, SHIFTS ITS GROUND AND BEGINS A HUNT FOR WHATEVER
"INDICIA OF RELIABILITY" MAY CLING TO WILLIAMS' REMARK, AS TOLD BY
SHAW.  WHETHER WILLIAMS MADE A "SPONTANEOUS" STATEMENT "AGAINST HIS
PENAL INTEREST" IS THE VERY QUESTION THAT SHOULD HAVE BEEN TESTED BY
CROSS-EXAMINATION OF WILLIAMS HIMSELF.  IF "INDICIA OF RELIABILITY" ARE
SO EASY TO COME BY, AND PROVE SO MUCH, THEN IT IS ONLY REASONABLE TO
ASK WHETHER THE CONFRONTATION CLAUSE HAS ANY INDEPENDENT VITALITY AT
ALL IN PROJECTING A CRIMINAL DEFENDANT AGAINST THE USE OF EXTRAJUDICIAL
STATEMENTS NOT SUBJECT TO CROSS-EXAMINATION AND NOT EXPOSED TO A JURY
ASSESSMENT OF THE DECLARANT'S DEMEANOR AT TRIAL.  /11/  I BELIEVE THE
CONFRONTATION CLAUSE HAS BEEN SUNK IF ANY OUT-OF-COURT STATEMENT
BEARING AN INDICIUM OF A PROBATIVE LIKELIHOOD CAN COME IN, NO MATTER
HOW DAMAGING THE STATEMENT MAY BE OR HOW GREAT THE NEED FOR THE TRUTH
DISCOVERING TEST OF CROSS-EXAMINATION.  CF. CALIFORNIA V. GREEN, 399
U.S. 149, 161-162 (1970).  OUR DECISIONS FROM POINTER AND DOUGLAS TO
BRUTON AND ROBERTS REQUIRE MORE THAN THIS MEAGER INQUIRY.  NOR IS THE
LAND "INDICIA"  APPROACH NECESSARY TO AVOID A RAMPAGING CONFRONTATION
CLAUSE THAT TRAMPLES ALL FLEXIBILITY AND INNOVATION IN A STATE'S LAW OF
EVIDENCE.  THAT SPECTER IS ONLY A SPECTER.  /12/  TO DECIDE THIS CASE I
NEED NOT GO BEYOND HITHERTO SETTLED SIXTH AND FOURTEENTH AMENDMENT LAW
TO CONSIDER GENERALLY WHAT EFFECT, IF ANY, THE CONFRONTATION CLAUSE HAS
ON THE COMMON-LAW HEARSAY RULE AND ITS EXCEPTIONS, SINCE NO ISSUE OF
SUCH GLOBAL DIMENSION IS PRESENTED.  CF. BRUTON V. UNITED STATES, 391
U.S.,AT 128 N. 3.  THE INCRIMINATORY EXTRAJUDICIAL STATEMENT OF AN
ALLEGED ACCOMPLICE IS SO INHERENTLY PREJUDICIAL THAT IT CANNOT BE
INTRODUCED UNLESS THERE IS AN OPPORTUNITY TO CROSS-EXAMINE THE
DECLARANT, WHETHER OR NOT HIS STATEMENT FALLS WITHIN A GENUINE
EXCEPTION TO THE HEARSAY RULE. 

IN MY VIEW, EVANS IS ENTITLED TO A TRIAL IN WHICH HE IS FULLY
ACCORDED HIS CONSTITUTIONAL GUARANTEE OF THE RIGHT TO CONFRONT AND
CROSS-EXAMINE ALL THE WITNESSES AGAINST HIM.  I WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS AND LET THIS CASE GO BACK TO THE
GEORGIA COURTS TO BE TRIED WITHOUT THE USE OF THIS OUT-OF-COURT
STATEMENT ATTRIBUTED BY SHAW TO WILLIAMS. 

/1/  SHAW HAD BEEN A WITNESS AT WILLIAMS' TRIAL; HIS TESTIMONY WAS
FULLY ANTICIPATED AND WAS OBJECTED TO BOTH BEFORE AND AFTER ITS
ADMISSION. 

/2/  THIS SAME QUESTION-- WHICH PRESENTS A FUNDAMENTAL CONFLICT
BETWEEN A DEFENDANT'S SIXTH AMENDMENT RIGHTS AND A WITNESS' FIFTH
AMENDMENT PRIVILEGE-- MIGHT HAVE BEEN PRESENT HERE HAD THE STATE CALLED
WILLIAMS TO TESTIFY.  UNDER A VIEW THAT WOULD MAKE AVAILABILITY OF A
DECLARANT THE ONLY CONCERN OF CONFROMTATION, SEE CALIFORNIA V. GREEN,
399 U.S. 149, 172-189 (1970) (HARLAN, J., CONCURRING), THE STATE'S
RIGHT OR DUTY TO COMPEL A CODEFENDANT'S TESTIMONY, BY TIMING OF TRIALS
AND USE OF TESTIMONIAL IMMUNITY, WOULD SEEMINGLY HAVE TO BE DECIDED. 
SEE COMMENT, EXERCISE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION BY
WITNESSES AND CODEFENDANTS:  THE EFFECT UPON THE ACCUSED, 33
U.CHI.L.REV.  151, 165 (1965). 

/3/  CF. BROOKHART V. JANIS, 384 U.S. 1, 4 (1966). 

/4/  MY BROTHER STEWART COMMENTS THAT EVANS MIGHT HAVE BROUGHT
WILLIAMS TO THE COURTHOUSE BY SUBPOENA.  DEFENSE COUNSEL DID NOT DO SO,
BELIEVING THAT WILLIAMS WOULD STAND ON HIS RIGHT NOT TO INCRIMINATE
HIMSELF.  TR. OF ORAL ARG. 55.  BE THAT AS IT MAY, IT REMAINS THAT THE
DUTY TO CONFRONT A CRIMINAL DEFENDANT WITH THE WITNESSES AGAINST HIM
FALLS UPON THE STATE, AND HERE THE STATE WAS ALLOWED TO INTRODUCE
DAMAGING EVIDENCE WITHOUT RUNNING THE RISKS OF TRIAL CONFRONTATION. 
CF. N. 2, SUPRA. 

/5/  AFTER CONSIDERING SHAW'S TESTIMONY AND OTHER EVIDENCE SUBMITTED
AT THE TRIAL, THE COURT OF APPEALS CONCLUDED THAT SHAW'S ACCOUNT OF HIS
CONVERSTATION WITH WILLIAMS WAS NOTABLE FOR "ITS BASIC INCREDIBILITY." 
400 F.2D 826, 828 N. 4. 

/6/  FOR EXAMPLE, POINTER INVOLVED ONLY THE SECOND, AND THAT ONE WAS
NOT PRESENT IN EITHER BRUTON OR ROBERTS. 

/7/  CONSTITUTIONALIZATION OF "ALL COMMON-LAW HEARSAY RULES AND
THEIR EXCEPTIONS," CALIFORNIA V. GREEN, 399 U.S.,AT 174 (CONCURRING
OPINION), WOULD SEEM TO BE A PROSPECT MORE FRIGHTENING THAN REAL.  MUCH
OF THE COMPLEXITY AFFLICTING HEARSAY RULES COMES FROM DEFINITION OF
HEARSAY AS AN OUT-OF-COURT STATEMENT PRESENTED FOR THE TRUTH OF THE
MATTER STATED-- A DEFINITION NOWHERE ADOPTED BY THIS COURT FOR
CONFRONTATION PURPOSES.  RATHER, THE DECISIONS, WHILE LOOKING TO
AVAILABILITY OF A DECLARANT, BARBER V. PAGE, SUPRA, RECOGNIZE THAT
"CROSS-EXAMINATION IS INCLUDED IN THE RIGHT OF AN ACCUSED IN A CRIMINAL
CASE TO CONFRONT THE WITNESSES AGAINST HIM," POINTER V. TEXAS, 380
U.S., AT 404, AND THAT ADMISSION IN THE ABASENCE OF CROSS-EXAMINATION
OF CERTAIN TYPES OF SUSPECT AND HIGHLY DAMAGING STATEMENTS IS ONE OF
THE "THREATS TO A FAIR TRIAL" AGAINST WHICH "THE CONFRONTATION CLAUSE
WAS DIRECTED," BRUTON V. UNITED STATES, 391 U.S.,AT 136. 

/8/  EVANS WAS NOT CHARGED WITH CONSPIRACY NOR COULD HE HAVE BEEN
UNDER GEORGIA LAW.  THE "CONSPIRACY" ELEMENT CAME IN AS PART OF THE
STATE'S LAW, PART OF WHICH GOES FAR BEYOND THE TRADITIONAL HEARSAY
EXCEPTION EVEN AS IT EXISTS WITH REGARD TO THE "CONCEALMENT PHASE" IN
SOME JURISDICTIONS.  INDEED, WILLIAMS' ALLEGED STATEMENT ITSELF NEGATES
THE NOTION THAT EVANS HAD AUTHORIZED WILLIAMS TO SPEAK OR HAD ASSUMED
THE RISK IN ORDER TO ACHIEVE AN UNLAWFUL AIM THROUGH CONCERT OF
EFFORT.  IT IS DIFFICULT TO CONCEIVE HOW WILLIAMS COULD BE PART OF A
CONSPIRACY TO CONCEAL THE CRIME WHEN ALL THE ALLEGED PARTICIPANTS WERE
IN CUSTODY AND HE HIMSELF HAD ALREADY BEEN ARRAIGNED.  AS THIS COURT
STATED IN FISWICK V. UNITED STATES, 329 U.S. 211, 217 (1946), AN
"ADMISSION BY ONE CO-CONSPIRATOR AFTER HE HAS BEEN APPREHENDED IS NOT
IN ANY SENSE A FURTHERANCE OF THE CRIMINAL ENTERPRISE.  IT IS RATHER A
FRUSTRATION OF IT."  ONE LOWER COURT IN GEORGIA HAS ADOPTED ESSENTIALLY
THIS REASONING IN REVERSING A CONVICTION WHERE TESTIMONY SIMILAR TO
THAT OBJECTED TO IN THIS CASE WAS ADMITTED.  SEE GREEN V. STATE, 115
GA.APP.  685, 155 S.E.2D 655 (1967).  BUT SEE N. 9, INFRA. 

/9/  THE GEORGIA RULE INVOLVED HERE, WHICH APPARENTLY MAKES
ADMISSIBLE ALL PRE-TRIAL STATEMENTS AND ADMISSIONS OF AN ALLEGED
ACCOMPLICE OR COCONSPIRATOR, INEVITABLY CONFLICTS WITH THIS COURT'S
DECISIONS REGARDING THE CONFRONTATION CLAUSE.  SEE DARDEN V. STATE, 172
GA. 590, 158 S.E. 414 (1931), AND MITCHELL V. STATE, 86 GA.APP.  292,
71 S.E.2D 756 (1952), WHERE CONFESSIONS OF CODEFENDANTS NOT ON TRIAL
WERE HELD ADMISSIBLE.  INDEED, THE GEORGIA SUPREME COURT SEEMS TO HAVE
RESOLVED THIS CONFLICT IN FAVOR OF THE STATE RULE BY ERRONEOUSLY
CONCLUDING THAT THIS COURT'S DECISIONS ARE BASED ON THE FEDERAL HEARSAY
RULE CONCERNING "A CONFESSION BY ONE OF THE CO-CONSPIRATORS AFTER HE
HAS BEEN APPREHENDED."  PINION V. STATE, 225 GA. 36, 37, 165 S.E.2D
708, 709-710 (1969).  SEE ALSO PARK V. STATE, 225 GA. 618, 170 S.E.2D
687 (1969), PETITION FOR CERT. FILED, NOVEMBER 4, 1969, NO. 57, O.T.
1970 (RENUMBERED). 

/10/  THE TRIAL JUDGE'S INSTRUCTIONS LEFT NO DOUBT THAT THE
STATEMENT ATTRIBUTED TO WILLIAMS COULD PROVIDE THE NECESSARY
CORROBORATION.  SEE TRIAL RECORD 412-413.  INDEED, THE PREJUDICIAL
IMPACT OF SHAW'S TESTIMONY IS GRAPHICALLY REVEALED SIMPLY BY
JUXTAPOSING TWO QUOTATIONS.  FIRST, THERE IS CHARACTERIZATION IN MR.
JUSTICE STEWART'S OPINION OF SHAW'S TESTIMONY, A CHARACTERIZATION THAT
I FIND FAIR ALBEIT STUDIEDLY MILD:  "THE JURY WAS BEING INVITED TO
INFER THAT WILLIAMS HAD IMPLICITLY IDENTIFIED EVANS AS THE PERPETRATOR
OF THE MURDER.  . . . "  SECOND, THERE IS THE TRIAL JUDGE'S CHARGE ON
CORROBORATION OF ACCOMPLICE TESTIMONY:  "SLIGHT EVIDENCE FROM AN
EXTRANEOUS SOURCE IDENTIFYING THE ACCUSED AS A PARTICIPATOR IN THE
CRIMINAL ACT WILL BE SUFFICIENT CORROBORATION OF AN ACCOMPLICE TO
SUPPORT A VERDICT."  IN THE LIGHT OF THE CHARGE AND ON CONSIDERATION OF
THE WHOLE RECORD OF EVANS' TRIAL, IT IS IMPOSSIBLE FOR ME TO BELIEVE
"BEYOND A REASONABLE DOUBT" THAT THE ERROR COMPLAINED OF DID NOT
CONTRIBUTE TO THE VERDICT OBTAINED.  CHAPMAN V. CALIFORNIA, 386 U.S.
18, 24 (1967); HARRINGTON V. CALIFORNIA, 395 U.S. 250, 251 (1969). 

/11/  MR. JUSTICE HARLAN ANSWERS THIS QUESTION WITH DIRECTNESS BY
ADOPTING, TO DECIDE THIS CASE, HIS VIEW OF DUE PROCESS WHICH APPARENTLY
MAKES NO DISTINCTION BETWEEN CIVIL AND CRIMINAL TRIALS, AND WHICH WOULD
PROHIBIT ONLY IRRATIONAL OR UNREASONABLE EVIDENTIARY RULINGS.  NEEDLESS
TO SAY, I CANNOT ACCEPT THE VIEW THAT EVANS' CONSTITUTIONAL RIGHTS
SHOULD BE MEASURED BY A STANDARD CONCEDEDLY HAVING NOTHING TO DO WITH
THE CONFRONTATION CLAUSE.     /12/  SEE N. 7, SUPRA. 

ALFRED L. EVANS, JR., ASSISTANT ATTORNEY GENERAL OF GEORGIA,
REARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF WERE ARTHUR K.
BOLTON, ATTORNEY GENERAL, AND MARION O. GORDON AND MATHEW ROBINS,
ASSISTANT ATTORNEYS GENERAL. 

ROBERT B. THOMPSON REARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLEE. 

SOLICITOR GENERAL GRISWOLD, BY INVITATION OF THE COURT, ARGUED THE
CAUSE FOR THE UNITED STATES AS AMICUS CURIAE ON THE REARGUMENT.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON, JEROME M.
FEIT, BEATRICE ROSENBERG, AND ROGER A. PAULEY. 
..END :












HICKEL V. OIL SHALE CORP., 400 U.S. 48 


       HICKEL, SECRETARY OF THE INTERIOR V. OIL SHALE CORP. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 25.  ARGUED OCTOBER 22, 1970-- DECIDED DECEMBER 8,
1970 


THE GENERAL MINING ACT OF 1872 PROVIDED THAT UNTIL A PATENT ISSUED
FOR LESS THAN $100 WORTH OF LABOR SHALL BE PERFORMED OR IMPROVEMENTS
MADE DURING EACH YEAR," AND THAT A PATENT COULD ISSUE ON A SHOWING THAT
THE CLAIMANT HAD EXPENDED $500 OF LABOR OR IMPROVEMENTS ON THE CLAIM. 
FAILURE TO DO THE ASSESSMENT WORK GENERALLY ENTITLED OTHERS TO RELOCATE
THE CLAIM.  UNDER THE MINERAL LANDS LEASING ACT OF 1920 LANDS
THERETOFORE OPEN TO LOCATION AND ACQUISITION OF TITLE BECAME AVAILABLE
ONLY ON A LEASE BASIS, BUT A SAVING CLAUSE COVERED VALID CLAIMS
EXISTENT ON FEBRUARY 25, 1920, "AND THEREAFTER MAINTAINED IN COMPLIANCE
WITH THE LAWS UNDER WHICH INITIATED."  ALL THE CLAIMS INVOLVED IN THIS
SUIT WERE CANCELED BY THE SECRETARY OF THE INTERIOR IN THE EARLY 1930'S
BECAUSE THE ANNUAL ASSESSMENT WORK, REQUIRED BY THE 1872 ACT, HAD NOT
BEEN PERFORMED.  IN ATTEMPTING TO ESTABLISH THEIR OIL SHALE CLAIMS IN
COLORADO UNDER THE 1872 ACT, RESPONDENTS BROUGHT THIS ACTION IN THE
DISTRICT COURT TO REQUIRE THE SECRETARY OF THE INTERIOR TO PATENT THE
CLAIMS OR TO EXPUNGE HIS RULINGS CANCELING THE CLAIMS FOR LACK OF
ANNUAL ASSESSMENT WORK AND TO ENJOIN HIM FROM ENFORCING THEM.  THE
DISTRICT COURT AND THE COURT OF APPEALS, RULING IN FAVOR OF
RESPONDENTS, HELD THAT THE DEPARTMENT OF THE INTERIOR HAD NO
JURISDICTION TO CANCEL THE CLAIMS.  THE COURTS RELIED ON WILBUR V.
KRUSHNIC, 280 U.S. 306, AND ICKES V. VIRGINIA-COLORADO DEVELOPMENT
CORP., 295 U.S. 639, WHERE THIS COURT DECLINED TO INTERPRET THE MINERAL
LEASING ACT AS REQUIRING THE RETURN TO THE GOVERNMENT OF FULL
POSSESSORY RIGHTS TO LANDS SUBJECT TO OIL SHALE CLAIMS FOR DEFAULTS IN
ASSESSMENT WORK.  THE DECISIONS INDICATED THAT FAILURE TO PERFORM SUCH
WORK MADE THE CLAIMS SUBJECT TO RELOCATION BY OTHERS BUT NOT FORFEITURE
TO THE GOVERNMENT.  HELD: THE SAVING CLAUSE OF THE MINERAL LEASING ACT
MAKES THE UNITED STATES THE BENEFICIARY OF ALL CLAIMS THAT ARE INVALID
FOR LACK OF ASSESSMENT WORK OR OTHERWISE AND THE DEPARTMENT OF THE
INTERIOR HAD SUBJECT MATTER JURISDICTION TO DETERMINE WHETHER
RESPONDENTS' CLAIMS WERE "MAINTAINED" WITHIN THE MEANING OF THAT
CLAUSE, INCLUDING THE PERFORMANCE OF ADEQUATE ASSESSMENT WORK. 
KRUSHNIC, SUPRA, AND VIRGINIA-COLORADO, SUPRA, MUST BE CONFINED TO
SITUATIONS WHERE THERE HAS BEEN SUBSTANTIAL COMPLIANCE WITH THE
ASSESSMENT WORK.  PP. 51-58. 

DOUGLAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BLACK,
BRENNAN, AND BLACKMUN, JJ., JOINED.  BURGER, C.J., AND STEWARD, J.,
FILED A DISSENTING STATEMENT, POST, P. 61.  HARLAN, WHITE, AND
MARSHALL, JJ., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE
CASE. 

MR.JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES SIX GROUPS OF CLAIMS TO OIL SHALE LOCATED IN
COLORADO AND ASSERTED UNDER THE GENERAL MINING ACT OF 1872, 17 STAT.
91, NOW 30 U.S.C. 22, 26, 28, AND 29.  SECTION 28 PROVIDES THAT UNTIL A
PATENT ISSUED "NOT LESS THAN $100 WORTH OF LABOR SHALL BE PERFORMED OR
IMPROVEMENTS MADE DURING EACH YEAR."  /1/  AND SEC. 29 PROVIDES THAT A
PATENT TO THE CLAIM COULD ISSUE ON A SHOWING THAT THE CLAIMANT HAD
EXPENDED $500 WORTH OF LABOR OR IMPROVEMENTS ON THE CLAIM.  THESE
CLAIMS ARE NOT PATENTED AND WERE CANCELED INTHE EARLY 1930'S ON THE
GROUND THAT THE AMOUNT OF LABOR OR IMPROVEMENTS SPECIFIED IN SEC. 28
HAD NOT BEEN MADE "DURING EACH YEAR."  /2/ 

SOME OF THE CLAIMANTS IN THIS CASE APPLIED FOR PATENTS BETWEEN 1955
AND 1962.  THE GENERAL LAND OFFICE REJECTED THE PATENT APPLICATIONS
BECAUSE THE CLAIMS HAD BEEN CANCELED.  ON APPEAL, THE SECRETARY OF THE
INTERIOR, ACTING THROUGH THE SOLICITOR, RULED THAT THESE CANCELLATIONS
WERE EFFECTIVE, LATER JUDICIAL DETERMINATIONS OF THE INVALIDITY OF THE
GROUNDS FOR CANCELLATION NOTWITHSTANDING.  UNION OIL CO., 71 I.D. 169. 
/3/  THESE CLAIMANTS THEN SOUGHT AN ORDER TO COMPEL THE DEPARTMENT TO
ISSUE THE PATENTS.  THEY ARGUED THAT THE LAND OFFICE WAS WITHOUT
AUTHORITY TO CANCEL THE CLAIMS WHEN IT DID AND THAT THE SECRETARY OF
THE INTERIOR HADNULLIFIED ALL THE CONTEST PROCEEDINGS IN 1935.  IN THE
ALTERNATIVE, THEY SOUGHT JUDICIAL REVIEW OF THOSE CONTEST RULINGS. 
RESPONDENT OIL SHALE CORP. COMMENCED THIS ACTION IN THE DISTRICT COURT,
NOT TO REQUIRE THE SECRETARY TO ISSUE A PATENT, BUT TO EXPUNGE THE
RULINGS OF THE SECRETARY CANCELING THE CLAIMS AND TO ENJOIN HIM FROM
ENFORCING THEM.  ALL THE CASES WERE CONSOLIDATED FOR TRIAL IN THE
DISTRICT COURT.  THE DISTRICT COURT GRANTED THE RELIEF, 261 F.SUPP. 
954, AND THE COURT OF APPEALS AFFIRMED, 406 F.2D 759, BOTH HOLDING THAT
CANCELLATIONS FOR LACK OF ASSESSMENT WORK WERE VOID BECAUSE THE
DEPARTMENT DID NOT HAVE JURISDICTION OVER THE SUBJECT MATTER.  THE CASE
IS HERE ON PETITION FOR CERTIORARI, WHICH GRANTED TO CONSIDER WHETHER
WILBUR V. KRUSHNIC, 280 U.S. 306, AND ICKES V. VIRGINIA-COLORADO
DEVELOPMENT CORP., 295 U.S. 639, HAD BEEN CORRECTLY CONSTRUED AND
APPLIED TO INVALIDATE THE SECRETARY'S ACTION IN PROTECTION OF THE
PUBLIC DOMAIN. 

BEFORE WE COME TO A CONSIDERATION OF THE KRUSHNIC AND VIRGINIA
COLORADO CASES IT SHOULD BE NOTED THAT IN 1920, CONGRESS BY ENACTING
SEC. 21 OF THE MINERAL LANDS LEASING ACT, 41 STAT. 445, 30 D.S.C.
241(A), COMPLETELY CHANGED THE NATIONAL POLICY OVER THE DISPOSITION OF
OIL SHALE LANDS.  THEREAFTER SUCH LANDS WERE NO LONGER OPEN TO LOCATION
AND ACQUISITION OF TITLE BUT ONLY TO LEASE.  BUT SEC. 37 CONTAINED A
SAVING CLAUSE WHICH COVERED "VALID CLAIMS EXISTENT ON FEBRUARY 25,
1920, AND THEREAFTER MAINTAINED IN COMPLIANCE WITH THE LAWS UNDER WHICH
INITIATED, WHICH CLAIMS MAY BE PERFECTED UNDER SUCH LAWS, INCLUDING
DISCOVERY."  30 U.S.C. 193.  RESPONDENTS CONTEND THAT THEIR CLAIMS FALL
WITHIN THAT EXCEPTION. 

RESPONDENTS ASSERT THAT A LIKE CLAIM WAS RECOGNIZED AND APPROVED IN
THE KRUSHNIC CASE.  IN THAT CASE, HOWEVER, LABOR IN THE STATUTORY
AMOUNT HAD BEEN PERFORMED, INCLUDING THE AGGREGATE AMOUNT OF $500.  THE
ONLY DEFAULT WAS IN THE FAILURE TO PERFORM LABOR FOR ONE YEAR DURING
THE PERIOD.  MANDAMUS FOR THE ISSUANCE OF A PATENT WAS DIRECTED, THE
COURT SAYINO . 

     "PRIOR TO THE PASSAGE OF THE LEASING ACT, ANNUAL PERFORMANCE
OF

  LABOR WAS NOT NECESSARY TO PRESERVE THE POSSESSORY RIGHT, WITH

  ALL THE INCIDENTS OF OWNERSHIP . . . , AS AGAINST THE UNITED

  STATES, BUT ONLY AS AGAINST SUBSEQUENT RELOCATORS.  SO FAR AS THE

  GOVERNMENT WAS CONCERNED, FAILURE TO DO ASSESSMENT WORK FOR ANY

  YEAR WAS WITHOUT EFFECT.  WHENEVER $500 WORHT OF LABOR IN THE

  AGGREGATE HAD BEEN PERFORMED, OTHER REQUIREMENTS ASIDE, THE OWNER

  BECAME ENTITLED TO A PATENT, EVEN THOUGH IN SOME YEARS ANNUAL

  ASSESSMENT LABOR HAD BEEN OMITTED."  280 U.S.,AT 317. 

THE COURT FURTHER HELD THAT THE CLAIMS WERE "MAINTAINED" WITHIN THE
SAVING CLAUSE OF THE LEASING ACT BY A RESUMPTION OF THE ASSESSMENT WORK
BEFORE A CHALLENGE OF THE CLAIM BY THE UNITED STATES HAD INTERVENED. 

VIRGINIA-COLORADO ALSO INVOLVED CLAIMS ON WHICH LABOR HAD BEEN
EXPENDED EXCEPT FOR ONE YEAR.  IT WAS ALLEGED, HOWEVER, THAT THE
CLAIMANT HAD PLANNED TO RESUME THE ASSESSMENT WORK BUT FOR THE
SECRETARY'S ADVERSE ACTION AND THAT THE CLAIMS HAD NOT BEEN ABANDONED. 
THE COURT HELD THAT THE CLAIMS HAD BEEN "MAINTAINED" WITHIN THE MEANING
OF THE SAVING CLAUSE OF THE LEASING ACT OF 1920. 

THOSE TWO CASES REFLECT A JUDICIAL ATTITUDE OF FAIR TREATMENT FOR
CLAIMANTS WHO HAVE SUBSTANTIALLY COMPLETED THE ASSESSMENT WORK REQUIRED
BY 30 U.S.C. 28.  THERE ARE, HOWEVER, DICTA BOTH IN VIRGINIA-COLORADO
AND IN KRUSHNIC THAT THE FAILURE TO DO ASSESSMENT WORK GIVES THE
GOVERNMENT NO GROUND FOR FORFEITURE BUT INURES ONLY TO THE BENEFIT OF
RELOCATORS. 

INDEED 30 U.S.C. 28, WHICH DERIVES FROM THE 1872 ACT, AS ALREADY
NOTED, /4/  PROVIDES THAT UPON THE FAILURE TO DO THE ASSESSMENT WORK,
"THE CLAIM OR MINE UPON WHICH SUCH FAILURE OCCURRED SHALL BE OPEN TO
RELOCATION IN THE SAME MANNER AS IF NO LOCATION OF THE SAME HAD EVER
BEEN MADE," PROVIDED THE ASSESSMENT WORK HAS NOT BEEN "RESUMED" UPON
THE CLAIM "AFTER FAILURE AND BEFORE SUCH LOCATION."  IT IS THEREFORE
ARGUED THAT SO FAR AS THE 1872 ACT IS CONCERNED THE FAILURE TO DO THE
ASSESSMENT WORK CONCERNS NOT THE GOVERNMENT BUT ONLY "RIVAL OR ADVERSE
CLAIMANTS."  /5/ 

THE PROBLEM IN THOSE TWO CASES AND THE PRESENT ONE CONCERNS THE
SAVING CLAUSE IN THE LEASING ACT WHICH, AS NOTED, MAKES AVAILABLE FOR
PATENT "VALID CLAIMS EXISTENT ON FEBRUARY 25, 1920, AND THEREAFTER
MAINTAINED IN COMPLIANCE WITH THE LAWS UNDER WHICH INITIATED." 
CONCEDEDLY, FAILURE TO MAINTAIN A CLAIM MADE IT "SUBJECT TO DISPOSITION
ONLY" BY LEASING BY THE UNITED STATES.  SEE SEC. 37 OF THE 1920 ACT, 30
U.S.C. 193.  HENCE IF WE ASSUME, ARGUENDO, THAT FAILURE TO DO
ASSESSMENT WORK AS PROVIDED IN THE 1872 ACT CONCERNED AT THE TIME ONLY
THE CLAIMANT AND ANY SUBSEQUENT RELOCATOR, THE UNITED STATES, SPEAKING
THROUGH THE SECRETARY OF THE INTERIOR, BECAME A VITALLY INTERESTED
PARTY BY REASON OF THE 1920 ACT.  FOR IT WAS BY THAT ACT THAT CONGRESS
RECLAIMED PORTIONS OF THE PUBLIC DOMAIN SO THAT LAND MIGHT BE DISPOSED
OF BY A DIFFERENT PROCEDURE (LEASING) TO THE SAME END (OIL SHALE
PRODUCTION /6/  ) OR DEVOTED TO WHOLLY DIFFERENT PURPOSES /7/  WITHIN
THE PURVIEW OF PUBLIC POLICY AS DETERMINED BY CONGRESS. 

IT APPEARS THAT SHORTLY BEFORE 1920 OIL SHALE CLAIMS WERE AFFECTED
BY A SPECULATIVE FEVER.  THEN CAME A PERIOD OF CALM.  BY THE LATE
FORTIES AND CONTINUING INTO THE SIXTIES SPECULATORS SOUGHT OUT THE
ORIGINAL LOCATORS OR THEIR HEIRS, OBTAINED QUITCLAIM DEEDS FROM THEM,
AND THEREUPON ELIMINATED ALL OTHER RECORD TITLEHOLDERS BY PERFORMING
ASSESSMENT WORK FOR ONE YEAR.  /8/  IT APPEARS THAT 94 OF THE 98 CLAIMS
INVOLVED IN THE PRESENT LITIGATION WERE OF THAT CHARACTER.  THERE IS
NOTHING REPREHENSIBLE IN THE PRACTICE, IF THE PROCEDURE IS ONE WHICH
CONGRESS HAS APPROVED.  BUT THE COMMAND OF THE 1872 ACT IS THAT
ASSESSMENT WORK OF $100 BE DONE "DURING EACH YEAR" AND THE SAVING
CLAUSE OF SEC. 37 OF THE 1920 ACT REQUIRES THAT FOR LANDS TO ESCAPE THE
LEASING REQUIREMENT THE CLAIMS MUST BE "MAINTAINED IN COMPLIANCE WITH
THE LAWS UNDER WHICH INITIATED." 

THE LEGISLATIVE HISTORY OF THE 1872 ACT DOES NOT THROW MUCH LIGHT ON
THE PROBLEM.  SENATOR COLE, PROPONENT OF THAT ACT, EXPLAINED, HOWEVER,
THAT THE REQUIREMENT OF ASSESSMENT WORK WAS MADE TO ADOPT THE SPANISH
LAW WHICH GRANTED MINING TITLES BUT SUBJECTED THEM "TO WHAT THEY TERM
DENOUNCEMENT OF THE TITLE OR DEFEASANCE OF THE TITLE UPON A FAILURE TO
WORK THE MINE AFTER A CERTAIN TIME."  CONG. GLOBE, 42D CONG., 2D SESS.,
2459 (1872).  WHILE THE OBJECTIVE OF THE 1872 ACT WAS TO OPEN THE LANDS
"TO A BENEFICIAL USE BY SOME OTHER PARTY," ONCE THE ORIGINAL CLAIMANT
DEFAULTED, THE DEFEASANCE INEVITABLY ACCRUED TO THE UNITED STATES,
OWNER OF THE FEE.  ON THAT PREMISE IT WOULD SEEM THAT THE DICTA IN
KRUSHNIC AND IN VIRGINIA-COLORADO ARE NOT VALID. 

THE HISTORY OF THE 1920 ACT THROWS A LITTLE LIGHT ON THE PROBLEM. 

IN THE SENATE THERE WAS CONSIDERABLE DEBATE OVER THE ADDITION OF THE
WORDS "INCLUDING DISCOVERY" AT THE END OF SEC. 37, WHICH CONTAINS THE
SAVING CLAUSE. 

"MR. JONES OF NEW MEXICO.  SUPPOSE WE USE THE WORDS 'INCLUDING
DISCOVERY.' 

     "MR.SMOOT.  VERY WELL; IF THE SENATOR DESIRES TO INSERT THE

  WORDS 'INCLUDING DISCOVERY' I SHALL OFFER NO OBJECTION. 

     "MR. WALSH OF MONTANA.  MR. PRESIDENT, I WAS GOING TO SAY TO

  SENATORS THAT TO MY MIND DISCOVERY DOES NOT NECESSARILY PERFEC

  THE CLAIM, BECAUSE THE CLAIMANT WOULD NOT BE ENTITLED TO A PATENT

  UNLESS HE HAD PERFORMED $500 WORTH OF WORK, AND IN A JUST SENSE

  HIS CLAIM WOULD NOT BE PROTECTED. 

     "MR. SMOOT.  THE WORDS 'UNDER SUCH LAWS' COVER EVERYTHING--
THE

  $500 WORTH OF WORK, DISCOVERY, AND EVERYTHING ELSE. 

     "MR. WALSH OF MONTANA.  BUT THE WORDS 'INCLUDING DISCOVERY,'

  NOW PROPOSED, IT SEEMS TO ME, WILL MAKE IT PLAIN. 

      "MR. SMOOT.  I HAVE NO OBJECTION TO THOSE WORDS GOING IN THE

  BILL."  58 CONG.REC.  4584.  /9/ 

THE "PERFECTION" OF THE CLAIMS "UNDER SUCH LAWS" THUS SEEMINGLY
MEANT COMPLIANCE WITH "EVERYTHING" UNDER 30 U.S.C. 28, WHICH TAKEN
LITERALLY WOULD MEAN ASSESSMENT WORK OF $100 "DURING EACH YEAR." 

IF WE WERE TO HOLD TO THE CONTRARY THAT ENFORCEMENT OF THE ASSESSMENT
WORK OF SECTION 28 WAS SOLELY AT THE PRIVATE INITIATIVE OF RELOCATORS,
THE "MAINTENANCE" PROVISION OF SEC. 37 BECOMES LARGELY ILLUSORY,
BECAUSE RELOCATION OF OIL SHALE CLAIMS BECAME IMPOSSIBLE AFTER THE 1920
ACT.  SO IF ENFORCEMENT OF THE ASSESSMENT WORK REQUIREMENT OF SEC. 28
WERE DEPENDENT SOLELY ON THE ACTIVITIES AND ENERGIES OF OIL SHALE
RELOCATORS, THERE WAS NO EFFECTIVE ENFORCEMENT DEVICE.  WHILE THE AREA
COVERED BY THE CLAIMS MIGHT POSSIBLY BE RELOCATED FOR WHOLLY DIFFERENT
PURPOSES, THE LIKELIHOOD WAS SO REMOTE THAT THE COURT OF APPEALS
CONCLUDED THAT:  "THE OLD CLAIMS WERE THUS SHELTERED BY THE (1920)
ACT."  406 F.2D, AT 763.  THAT MEANT THAT A CLAIM COULD REMAIN IMMUNE
FROM CHALLENGE BY ANYONE WITH OR WITHOUT ANY ASSESSMENT WORK, IN
COMPLETE DEFIANCE OF THE 1872 ACT. 

THE COURT CONCLUDED IN VIRGINIA-COLORADO THAT THE LAPSE IN
ASSESSMENT WORK WAS NO BASIS FOR A CHARGE OF ABANDONMENT.  295 U.S.,AT
645-646.  WE CONSTRUE THAT STATEMENT TO MEAN THAT ON THE FACTS OF THAT
CASE FAILURE TO DO THE ASSESSMENT WORK WASNOT SUFFICIFNT TO ESTABLISH
ABANDONMENT.  BUT IT WAS WELL ESTABLISHED THAT THE FAILURE TO DO
ASSESSMENT WORK WAS EVIDENCE OF ABANDONMENT.  OF ABANDONMENT.  UNION
OIL CO. V. SMITH, 249 U.S. 337, 349; DONNELLY V. UNITED STATES, 228
U.S. 243, 267.  IF, IN FACT, A CLAIM HAD BEEN ABANDONED, THEN THE
RELOCATORS WERE NOT THE ONLY ONES INTERESTED.  THE UNITED STATES HAD AN
INTEREST IN RETRIEVING THE LANDS.  SEE G. WIDMAN, T. BRIGHTWELL, & J.
HAGGARD, LEGAL STUDY OF OIL SHALE ON PUBLIC LANDS 189-193 (1969).  THE
POLICY OF LEASING OIL SHALE LANDS UNDER THE 1920 ACT GAVE THE UNITED
STATES A KEEN INTEREST IN RECAPTURING THOSE WHICH HAD NOT BEEN
"MAINTAINED" WITHIN THE MEANING OF SEC. 37 OF THAT ACT.  WE AGREE WITH
THE COURT IN KRUSHNIC AND VIRGINIA-COLORADO THAT EVERY DEFAULT IN
ASSESSMENT WORK DOES NOT CAUSE THE CLAIM TO BE LOST.  DEFAULTS,
HOWEVER, MIGHT BE THE EQUIVALENT OF ABANDONMENT; AND WE NOW HOLD THAT
TOKEN ASSESSMENT WORK, OR ASSESSMENT WORK THAT DOES NOT SUBSTANTIALLY
SATISFY THE REQUIREMENTS OF 30 U.S.C. 28 IS NOT ADEQUATE TO "MAINTAIN"
THE CLAIMS WITHIN THE MEANING OF SEC. 37 OF THE LEASING ACT.  TO HOLD
OTHERWISE WOULD HELP DEFEAT THE POLICY THAT MADE TH UNITED STATES, AS
THE PROSPECTIVE RECIPIENT OF ROYALTIES, A BENEFICIARY OF THESE OIL
SHALE CLAIMS.  WE CANNOT SUPPORT KRUSHNIC AND VIRGINIA-COLORADO ON SO
BROAD A GROUND.  RATHER, THEIR DICTA TO THE CONTRARY, WE CONCLUDE THAT
THEY MUST BE CONFINED TO SITUATIONS WHERE THERE HAD BEEN SUBSTANTIAL
COMPLIANCE WITH THE ASSESSMENT WORK REQUIREMENTS OF THE 1872 ACT, SO
THAT THE "POSSESSORY TITLE" OF THE CLAIMANT, GRANTED BY 30 U.S.C. 26,
WILL NOT BE DISTURBED ON FLIMSY OR INSUBSTANTIAL GROUNDS. 

UNLIKE THE CLAIMS IN KRUSHNIC AND VIRGINIA-COLORADO, THE LAND
COMMISSIONER'S FINDINGS INDICATE THAT THE PRESENT CLAIMS HAD NOT
SUBSTANTIALLY MET THE CONDITIONS OF SEC. 28 RESPECTING ASSESSMENT
WORK.  THEREFOR WE CANNOT SAY THAT KRUSHNIC AND VIRGINIA-COLORADO
CONTROL THIS LITIGATION.  WE DISAGREE WITH THE DICTA IN THESE OPINIONS
THAT DEFAULT IN DOING THE ASSESSMENT WORK INSURES ONLY TO THE BENEFIT
OF RELOCATORS, AS WE ARE OF THE VIEW THAT SEC. 37 OF THE 1920 ACT MAKES
THE UNITED STATES THE BENEFICIARY OF ALL CLAIMS INVALID FOR LACK OF
ASSESSMENT WORK OR OTHERWISE.  IT FOLLOWS THAT THE DEPARTMENT OF THE
INTERIOR HAD, AND HAS, SUBJECT MATTER JURISDICTION OVER CONTESTS
INVOLVING THE PERFORMANCE OF ASSESSMENT WORK.  WE CONCLUDE THEREFORE
THAT THE JUDGMENTS BELOW MUST BE REVERSED. 

RESPONDENTS RELY UPON THE RESPONSE OF THE DEPARTMENT OF THE INTERIOR
TO THE VIRGINIA-COLORADO CASE IN WHICH THE SECRETARY DECLARED THE
CONTEST IN THAT CASE TO BE "VOID."  HE ALSO DECLARED THAT "OTHER
DEPARTMENTAL DECISION IN CONFLICT WITH THIS DECISION ARE HEREBY
OVERRULED."  SHALE OIL CO., 55 I.D. 287, 290.  THIS DECISION, THEY
ARGUE, NULLIFIED THE PREVIOUS CONTEST PROCEEDINGS IN WHICH THEIR CLAIMS
WERE VOIDED.  MOREOVER, THEY CONTEND THAT THIS ADMINISTRATIVE RULE OF
35 YEARS, UPON WHICH THE DEPARTMENT ITSELF HAS RELIED, MAY NOT NOW BE
RETROACTIVELY CHANGED.  IN ADDITION, THEY CLAIM THAT THESE CONTEST
DECISIONS, IF STILL VALID, ARE SUBJECT TO DIRECT JUDICIAL REVIEW AT
THIS TIME, TESTING BOTH SUBSTANTIVE AND PROCEDURAL ERRORS, SUCH AS LACK
OF NOTICE.  /10/ 

THESE CONTENTIONS PRESENT QUESTIONS NOT DECIDED BELOW.  THEREFORE,
ON REMAND ALL ISSUES RELEVANT TO THE CURRENT VALIDITY OF THOSE CONTEST
PROCEEDINGS WILL BE OPEN, INCLUDTNG THE AVAILABILITY OF JUDICIAL REVIEW
AT THIS TIME.  TO THE EXTENT THAT THEY ARE FOUND VOID, NOT CONTROLLING,
OR SUBJECT TO REVIEW, ALL ISSUES RELEVANT TO THE INVALIDITY OF THE
CLAIMS WILL BE OPEN, INCLUDING INADEQUATE ASSESSMENT WORK, ABANDOMENT,
FRAUD, AND THE LIKE.  LIKEWISE ALL ISSUES CONCERNING THE TIME, AMOUNT,
AND NATURE OF THE ASSESSMENT WORK WILL BE OPEN SO THAT THE CLAIMANTS
WILL HAVE AN OPPORTUNITY TO BRING THEIR CLAIMS WITHIN THE NARROW AMBIT
OF KRUSHNIC AND VIRGINIA-COLORADO, AS WE HAVE CONSTRUED AND LIMITED
THESE OPINIONS. 

              REVERSED AND REMANDED. 

/1/  SECTION 28 READS IN PART: 

"ON EACH CLAIM LOCATED AFTER THE 10TH DAY OF MAY 1872, AND UNTIL A
PATENT HAS BEEN ISSUED THEREFOR, NOT LESS THAN $100 WORTH OF LABOR
SHALL BE PERFORMED OR OR IMPROVEMENTS MADE DURING EACH YEAR . . . .
(UPON A FAILURE TO COMPLY WITH THESE CONDITIONS, THE CLAIM OR MINE UPON
WHICH SUCH FAILURE OCCURRED SHALL BE OPEN TO RELOCATION IN THE SAME
MANNER AS IF NO LOCATION OF THE SAME HAD EVER BEEN MADE, PROVIDED THAT
THE ORIGINAL LOCATORS, THEIR HEIRS, ASSIGNS, OR LEGAL REPRESENTATIVES,
HAVE NOT RESUMED WORK UPON THE CLAIM AFTER FAILURE AND BEFORE SUCH
LOCATION . . . ." 


"THE CLAIMANT AT THE TIME OF FILING THIS APPLICATION, OR AT ANY TIME
THEREAFTER, WITHIN THE SIXTY DAYS OF PUBLICATION, SHALL FILE WITH THE
MANAGER A CERTIFICATE OF THE UNITED STATES CHIEF CADASTRAL ENGINEER
THAT $500 WORTH OF LABOR HAS BEEN EXPENDED OR IMPROVEMENTS MADE UPON
THE CLAIM BY HIMSELF OR GRANTORS . . . ." 

/2/  FOR A DESCRIPTION OF THE CLAIMS INVOLVED IN THIS CASE SEE THE
APPENDIX TO THIS OPINION. 

/3/  IT WAS ADMITTED THAT THE CANCELLATIONS MAY HAVE BEEN
ERRONEOUS.  HE DECLARED, HOWEVER, THAT THE COMMISSIONER OF THE GENERAL
LAND OFFICE HAD JURISDICTION TO MAKE THE DETERMINATIONS.  THEREFORE,
SINCE THE RULINGS WERE NOT APPEALED FROM, THEY WERE RES JUDICATA, NOT
SUBJECT TO ATTACK IN 1962. 

/4/  SEE N. 1, SUPRA.  FOR A RECENT ACCOUNT OF THE OPERATION OF THE
1872 ACT AND THE LEASING ACT OF 1920 SEE ONE THIRD OF THE NATION'S
LAND, REPORT BY THE PUBLIC LAND LAW REVIEW COMMISSION 124-138. 

/5/  THE REGULATIONS PROVIDED: 

"THE ANNUAL EXPENDITURE OF $100 IN LABOR OR IMPROVEMENTS ON A MINING
CLAIM, REQUIRED BY SECTION 2324 OF THE REVISED STATUTES (30 U.S.C. 28),
IS . . . SOLELY A MATTER BETWEEN RIVAL OR ADVERSE CLAIMANTS TO THE SAME
MINERAL LAND, AND GOES ONLY TO THE RIGHT OF POSSESSION, THE
DETERMINATION OF WHICH IS COMMITTED EXCLUSIVELY TO THE COURTS."  43 CFR
3420.4. 

/6/  THE VALUE TO THE GOVERNMENT OF THE LEASING ACT IS SHOWN BY THE
MAGNITUDE OF THE INTERESTS AT STAKE.  WE ARE TOLD THAT RESPONDENT OIL
SHALE CORP. BID FOR A LEASE OF 5,120 ACRES OF FEDERAL OIL SHALE LAND IN
COLORADO.  33 FED.REG.  16154.  THE PROJECTED OPERATIONS WERE ESTIMATED
TO YIELD 40 GALLONS OF OIL PER TON, THE ROYALTY BEING 24[ PER TON. 
ID., AT 16156.  THE PROJECTED MINING RATE OF 66,000 TONS PER DAY FOR
330 DAYS A YEAR WOULD PRODUCE AN ANNUAL ROYALTY OF CLOSE TO
$5,230,000.  THE PROJECT LIFE WAS 20 YEARS. 

/7/  THE LANDS CONTAINING OIL SHALE BECAME OPEN TO AGRICULTURAL AND
OTHER NONMINERAL ENTRIES INCLUDING, INTER ALIA, THOSE UNDER THE STOCK
RAISING HOMESTEAD ACT OF 1916, 39 STAT. 862, 43 U.S.C. 291 ETSEQ., TO
OIL AND GAS AND SODIUM LEASING UNDER THE 1920 ACT, TO INDIAN TRIBAL
LANDS IN UTAH AND TO GRAZING DISTRICTS UNDER THE TAYLOR GRAZING ACT, 48
STAT. 1269, 43 U.S.C. 315 ET SEQ. 

/8/  SEE N. 3, APPENDIX, INFRA. 

/9/  THE AMENDMENT WAS THERUPON AGREED TO.  THERE WAS NO CHANGE MADE
IN THE HOUSE IN THIS RESPECT.  H. REP. NO. 398, 66TH CONG., 1ST SESS.,
11.  AND SEE THE CONFERENCE REPORT, H.R. REP. NO. 600, 66TH CONG., 2D
SESS., 16. 

/10/  THE SECRETARY HAS HELD THAT THE OLD DEFAULT PROCEEDINGS ARE
SUBJECT TO REOPENING AS TO ANY LOCATOR FOR WHOM RECEIPT OF SERVICE IS
NOT ADEQUATELY SHOWN.  UNION OIL CO. OF CALIFL, 72 I.D. 313. 

MR JUSTICE HARLAN, MR. JUSTICE WHITE, AND MR. JUSTICE MARSHALL TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

        APPENDIX TO OPINION OF THE COURT 

ONE GROUP OF CLAIMS IN QUESTION WAS COMPOSED OF 48 (BUTE) CLAIMS
LOCATED BY NINE INDIVIDUALS BETWEEN DECEMBER 1919 AND JANUARY 1920,
SHORTLY BEFORE FEBRUARY 25, 1920, THE CUTOFF DATE FOR PRIOR VALID
CLAIMS RECOGNIZED BY THE SAVING CLAUSE OF THE 1920 ACT.  /1/  THE
RECORDS SHOW AN ENTRY IN FEBRUARY 1921 OF A "NOTICE IN LIEU OF LABOR. 
LABOR."  /2/  NO OTHER ENTIRES WERE MADE.  IN 1954, A MAN BY THE NAME
OF ERTL ACQURIED THE CLAIMS OF TWO OF THIS GROUP.  IN 1955, HE FILED AN
"AFFIDAVIT OF ANNUAL LABOR" AND PUBLISHED A FORFEITURE NOTICE IN THE
NEWSPAPER.  /3/  IN 1956, HE ACQUIRED A DECREE IN A COLORADO COURT
QUIETING TITLE IN HIM TO ALL INTERESTS IN ALL THE CLAIMS OF THIS
GROUP.  ANOTHER GROUP OF 18 (ATLAS) CLAIMS WAS LOCATED IN DECEMBER 1919
BY NINE INDIVIDUALS.  IN FEBRUARY 1921, A "NOTICE IN LIEU OF LABOR" WAS
FILED.  NO OTHER INSTRUMENTS WERE FILED.  IN 1954, ERTL ACQUIRED THE
INTERESTS OF TWO OF THIS GROUP.  IN JULY 1955, HE FILED AN "AFFIDAVIT
OF ANNUAL LABOR" AND PUBLISHED A FORFEITURE NOTICE.  IN SEPTEMBER, A
MAN NAMED DUTTON ACQUIRED AN INTEREST IN THE CLAIMS OF TWO LOCATORS OF
THIS GROUP AND, IN MAY 1956, ERTL QUIETED TITLE IN HIMSELF TO THE
ENTIRE GROUP.  ANOTHER GROUP OF 20 (CAMP BIRD) CLAIMS WAS LOCATED IN
1920.  NO INSTRUMENTS WERE FILED REGARDING ANNUAL LABOR.  IN 1955, MR.
DUTTON ACQUIRED THE INTERESTS OF TWO OF TH EIGHT LOCATORS, AND MR. ERTL
ACQUIRED THE INTERESTS OF FOUR IN 1956.  ERTL FILED AN "AFFIDAVIT OF
ANNUAL LABOR" AND PUBLISHED A FORFEITURE NOTICE.  DUTTON RESPONDED AND
A COURT QUIETED TITLE IN THE TWO OF THEM, 75% IN ERTL AND 25% IN
DUTTON. 

IN JANUARY, ERTL TRANSFERRED ALL HIS INTEREST IN THE ABOVE CLAIMS TO
ENERGY RESOURCES TECHNOLOGY LAND, INC. (ERTL).  MR. DUTTON TRANSFERRED
ANY INTEREST HE HELD IN THE ABOVE CLAIMS TO ERTL AND ERTL CONVEYED
TITLE TO 16 OF THE BUTE CLAIMS, NOS. 33-48, TO DUTTON.  THESE 16 CLAIMS
WERE EVENTUALLY PURCHASED BY OIL SHALE CORP. FOR $1,536,000.  IN 1963,
OIL SHALE LEASED ALL OF THE REMAINING CLAIMS FROM ERTL FOR $148,000 PER
YEAR.  FORTY-SIX OF THE BUTE CLAIMS, INCLUDING THE 16 PURCHASED BY OIL
SHALE, NINE OF THE ATLAS CLAIMS AND ALL 20 OF THE CAMP BIRD CLAIMS ARE
INVOLVED IN E LITIGATION HERE. 

ANOTHER GROUP OF 20 CLAIMS (CARBON 1-8 AND ELIZABETH 1-12) PASSED
THROUGH SEVERAL HANDS, AND AFTER NOTICE AND FORFEITURE, AS ABOVE, IS
HELD BY WASATCH DEVELOPMENT CO. AND JOSEPH UMPLEBY.  SIXTEEN OF THESE
ARE INVOLVED HERE.  ANOTE HERE.  ANOTHER GROUP OF FOUR (SW, NW, NE, &
SE) CLAIMS HAS A SIMILAR HISTORY, AND THREE OF THOSE ARE INVOLVED
HERE.  THE LAST GROUP OF CLAIMS (OYLER 1-4) IS THE ONLY GROUP IN WHICH
THERE HAS BEEN NO CLAIM OF FORFEITURE.  ALL FOUR OF THESE ARE INVOLVED
HERE. 

/1/  SECTION 37 OF THE ACT, 30 U.S.C. 193, READS IN PAR 

"THE DEPOSITS OF . . . OIL SHALE . . . HEREIN REFERRED TO, IN LANDS
VALUABLE FOR SUCH MINERALS . . . SHALL BE SUBJECT TO DISPOSITION ONLY
IN THE FORM AND MANNER PROVIDED (IN THIS ACT), EXCEPT AS TO VALID
CLAIMS EXISTENT ON FEBRUARY 25, 1920, AND THEREAFTER MAINTAINED IN
COMPLIANCE WITH THE LAWS UNDER WHICH INITIATED, WHICH CLAIMS MAY BE
PERFECTED UNDER SUCH LAWS, INCLUDING DISCOVERY." 

/2/  CONGRESS SUSPENDED THE $100 LABOR OR IMPROVEMENTS REQUIREMENT
FOR THE YEAR 1919.  SUCH SUSPENSIONS WERE ALSO ALLOWED BY CONGRESS FOR
THE YEARS 1933 TO 1938, 1942, 1943, 1948, AND 1949. 

/3/  BY A PROVISION OF THE 1872 ACT, NOW 30 U.S.C. 28, WHERE ANY OF
SEVERAL CO-OWNERS HAS NOT CONTRIBUTED HIS SHARE OF ASSESSMENT WORK, ONE
OR MORE CO-OWNERS WHO HAVE DONE THE WORK MAY GIVE THE DELINQUENT CO
OWNER NOTICE IN WRITING OR BY PUBLICATION FOR AT LEAST ONCE A WEEK FOR
90 DAYS AND IF AT THE END OF THAT TIME ?HE DELINQUENT FAILS OR REFUSES
TO CONTRIBUTE HIS SHARE, "HIS INTEREST IN THE CLAIM SHALL BECOME THE
PROPERTY OF HIS COOWNERS WHO HAVE MADE THE REQUIRED EXPENDITURES." 
THAT FEDERAL RIGHT IS ENFORCEABLE IN STATE COURTS.  SEE HAMILTON
V.ERTL, 146 COLO. 80, 360 P.2D 660. 

FOR THE HISTORY OF THE LAW WHICH ALLOWS ASSESSMENT WORK ON ONE CLAIM
TO INURE THE BENEFIT OF A GROUP OF CLAIMS SEE UNION OIL CO. V. SMITH,
249 U.S. 337, 350-351. 

THE CHIEF JUSTICE AND MR. JUSTICE STEWART DISSENT.  THEY BELIEVE THE
COURT OF APPEALS IN THIS LITIGATION CORRECTLY CONSTRUED AND APPLIED
THIS COURT'S DECISIONS IN WILBUR V. KRUSHNIC, 280 U.S. 306, AND ICKES
V. VIRGINIA-COLORADO DEVELOPMENT CORP., 295 U.S. 639.  ACCORDINGLY,
UNLESS THOSE DECISIONS ARE TO BE OVERRULED, THEY WOULD AFFIRM THE
JUDGMENT BEFORE US.     PETER L. STRAUSS ARGUED THE CAUSE FOR
PETITIONER.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL KASHIWA, S. BILLINGSLEY HILL, THOS. I.
MCKEVITT, AND EDMUND B. CLARK. 

FOWLER HAMILTON ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEFS FOR RESPONDENTS OIL SHALE CORP. ET AL. WERE RICHARD W. HULBERT
AND DONALD L. MORGAN.  JOHN D. KNODELL, JR., FRED M. WINNER, AND WARREN
O. MARTIN FILED A BRIEF FOR RESPONDENTS UMPLEBY ET AL.
..END :










MARINE TERMINAL V. REDERI. TRANSATLANTIC, 400 U.S. 62 


       PORT OF BOSTON MARINE TERMINAL ASSN. ET AL. V.

         REDERIAKTIEBOLAGET TRANSATLANTIC

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

  FIRST CIRCUIT

        NO. 99.  ARGUED OCTOBER 22, 1970--  DECIDED DECEMBER 8,

           1970 


PETITIONER TERMINAL ASSOCIATION, A MARITIME TERMINAL OPERATORS
CONFERENCE OPERATING UNDER AN AGREEMENT APPROVED BY THE FEDERAL
MARITIME COMMISSION (FMC), PURSUANT TO SEC. 15 OF THE SHIPPING ACT,
1916, REVISED A TARIFF ON FILE WITH THE AGENCY BY SHIFTING THE
INCIDENCE OF A WHARF DEMURRAGE CHARGE FROM CONSIGNEES TO CARRIERS. 
WHEN SEVERAL CARRIERS REFUSED TO PAY THE REVISED CHARGE, WHICH HAD NOT
PREVIOUSLY BEEEN APPROVED BY THE FMC, THE TERMINAL ASSOCIATION SUED THE
ASSOCIATION THAT REPRESENTED THEM AND THEIR AGENTS (SHIPPING
ASSOCIATION).  THE DISTRICT COURT STAYED THE PROCEEDINGS TO ALLOW THE
SHIPPING ASSOCIATION TO OBTAIN FROM THE FMC A RULING ON THE VALIDITY OF
THE CHANGE.  AFTER A HEARING, THE FMC CONCLUDED, ON JUNE 23, 1967, THAT
ITS PRIOR APPROVAL OF THE REVISED TARIFF WAS NOT NECESSARY UNDER SEC.
15 OF THE ACT.  ON SEPTEMBER 19, 1967, THE SHIPPING ASSOCIATION FILED
WITH THE COURT OF APPEALS A PETITION FOR REVIEW WHICH THAT COURT
DISMISSED FOR LATENESS.  ON SEPTEMBER 4, 1968, RESPONDENT, A CARRIER
THAT HAD BEEN ASSESSED CHARGES, MADE APPLICATION TO THE FMC FOR
RECONSIDERATION (ON THE BASIS OF A DECISION THIS COURT RENDERED AFTER
THE FMC'S RULING), WHICH THE FMC RETURNED AS UNTIMELY FILED UNDER ITS
RULES.  THEREUPON RESPONDENT, CONTENDING THAT ITS AGENT HAD
INADEQUATELY REPRESENTED IT IN THE PROCEEDING BROUGHT BY THE SHIPPING
ASSOCIATION, SOUGHT AND WAS ALLOWED TO INTERVENE IN THE STILL-PENDING
ACTTON IN THE DISTRICT COURT.  THAT COURT, CONCLUDING THAT THE FMC HAD
PRIMARY JURISDICTION OF THE SUBJECT MATTER OF THE DISPUTE AND THAT THE
DISTRICT COURT DID NOT HAVE JURISDICTION TO REVIEW THE FMC'S DECISION,
RENDERED JUDGMENT AGAINST THE SHIPPING ASSOCIATION AND RESPONDENT. 
RESPONDENT APPEALED.  THE COURT OF APPEALS REVERSED ON THE MERITS,
AFTER CONCLUDTNG THAT RESPONDENT WAS NOT A PARTY TO THE FMC PROCEEDING
AND WAS THEREFORE FREE TO SEEK INDEPENDENT COLLATERAL REVIEW IN THE
DISTRICT COURT OF THAT AGENCY'S ORDER.  HELD: 

1.  THE FMC, THE AGENCY RESPONSIBLE UNDER THE SHIPPING ACT FOR
SUPERVISING CONFERENCES OF MARINE TERMINAL OPERATORS AND UNIQUELY
QUALIFIED TO CONSIDER DISPUTES INVOLVING OVERALL CONFERENCE POLICIES,
HAD PRIMARY JURISDICTION OVER THE QUESTION WHETHER PRIOR ADMINISTRATIVE
APPROVAL OF THE TARIFF AMENDMENT WAS REQUIRED.  PP. 68-69. 

2.  THE DISTRICT COURT CORRECTLY CONCLUDED THAT IT HAD NO AUTHOIRTY
TO REVIEW THE FMC'S DECISION, WHICH CONSTITUTED A FINAL ORDER AND AS
SUCH, UNDER THE ADMINISTRATIVE ORDERS REVIEW ACT, WAS EXCLUSIVELY
REVIEWABLE BY THE COURT OF APPEALS.  PP. 69-71. 

3.  RESPONDENT, HAVING BEEN REPRESENTED BY ITS AGENT IN THE
ADMINISTRATIVE HEARING AND HAVING ALSO HAD EVERY OPPORTUNITY TO
PARTICIPATE BEFORE THE FMC AND TO SEEK TIMELY REVIEW IN THE COURT OF
APPEALS, CANNOT COLLATERALLY ATTACK THE FMC'S ORDER.  PP.71-72. 

4.  WHEN THE CASE RETURNED TO THE DISTRICT COURT, THE TIME FOR
REVIEW BY THE COURT OF APPEALS HAD EXPIRED, PRECLUDING ANY JUDICIAL
REVIEW OF THE FMC DECISION ON THE MERITS.  P. 72 

420 F.2D 419, REVERSED. 

MARSHALL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE UNDERLYING DISPUTE HERE IS WHETHER VESSEL OWNERS OR CONSIGNEES
WILL PAY CHARGES /1/  FOR CARGO LEFT ON THE WHARVES AT THE PORT OF
BOSTON.  BUT THE CENTRAL QUESTION WE FACE IS WHETHER A RESOLUTION OF
THIS DISPUTE BY THE FEDERAL MARITIME COMMISSION IS BINDING ON
RESPONDENT.  WE BELIEVE THAT THE COURT OF APPEALS WAS IN ERROR IN
HOLDING THAT THE COMMISSION'S DETERMINATION WAS NOT BINDING. 
ACCORDINGLY, WE REVERSE. 

THE PORT OF BOSTON MARINE TERMINAL ASSOCIATION IS A CONFERENCE OF
MARITIME TERMINAL OPERATORS ACTING PURSUANT TO AN AGREEMENT /2/
APPROVED IN 1962 BY THE FEDERAL MARITIME COMMISSION.  /3/  PRIOR TO
1964, THE TERMINAL ASSOCIATION ADMINISTERED A TARIFF, /4/  ON FILE WITH
THE COMMISSION, WHICH ASSESSED CHARGES AGAINST A CONSIGNEE WHENEVER
CARGO REMAINED ON A PIER OR WHARF FOR MORE THAN FIVE DAYS.  /5/  IN
THAT YEAR, THE TERMINAL ASSOCIATION, WITHOUT PRIOR APPROVAL OF THE
COMMISSION, SHIFTED THE INCIDENCE OF THE TARIFF SO THAT A DAILY FEE OF
ONE-HALF CENT PER 100 POUNDS WAS CHARGED A CARRIER-VESSEL WHENEVER THE
FAILURE TO REMOVE CARGO RESULTED FROM A STRIKE BY LONGSHOREMEN. 

IN 1965 THERE WAS A LONGSHOREMEN'S STRIKE THAT CAUSED CARGO TO BE
LEFT ON THE WHARVES BEYOND THE FIVE-DAY-- FREE TIME-- LIMIT.  SEVERAL
VESSELS REFUSED TO PAY THE REVISED CHARGES; AND THE TERMINAL
ASSOCIATION BROUGHT A STATE COURT ACTION FOR DAMAGES AND DECLARATORY
RELIEF AGAINST THE BOSTON SHIPPING ASSOCIATION, /6/  AN ORGANIZATION
REPRESENTING VESSEL OWNERS AND THEIR AGENTS.  FOLLOWING REMOVAL TO THE
UNITED STATES DISTRICT COURT, THE SHIPPING ASSOCIATION DEFENDED ON THE
GROUNDS THAT THE REVISED TARIFF WAS NOT WITHIN THE SCOPE OF THE 1962
TERMINAL ASSOCIATION AGREEMENT AND COULD NOT BECOME EFFECTIVE WITHOUT
COMMISSION APPROVAL.  /7/ 

THE DISTRICT COURT STAYED THE PROCEEDINGS TO ALLOW THE SHIPPING
ASSOCIATION TO OBTAIN A RULING BY THE COMMISSION ON THE VALIDITY OF THE
CHANGE.  ON JUNE 23 1967, AFTER A FULL EVIDENTIARY HEARING, THE
COMMISSION ISSUED A REPORT AND ORDER CONCLUDING THAT PRIOR APPROVAL WAS
NOT NECESSARY BECAUSE SHIFTING THE INCIDENCE OF THE CHARGE DID NOT
"CONSTITUTE A NEW AGREEMENT OR A MODIFICATION TO THE EXISTING AGREEMENT
CALLING FOR A NEW . . . RATE-FIXING SCHEME NOT CONTEMPLATED IN THE
ORIGINAL AGREEMENT."  /8/  THE COMMISSION ALSO APPROVED THE CHANGE IN
THE FEE STRUCTURE INSOFAR AS THE CHANGE AFFECTED CARGO THAT WAS IN FREE
TIME WHEN THE STRIKE STARTED BUT HELD THAT IT WAS UNREASONABLE WITHIN
THE MEANING OF SEC. 17 OF THE SHIPPING ACT, 46 U.S.C. 816, /9/ TO
ASSESS CHARGES AGAINST THE VESSEL WHEN THE CARGO WAS NOT IN FREE TIME
/10/  AT THE START OF THE STRIKE. 

ON SEPTEMBER 19, 1967, THE SHIPPING ASSOCIATION PETITIONED THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FOR REVIEW.  BUT SINCE
THE PETITION WAS FILED AFTER THE EXPIRATION OF THE 60-DAY PERIOD
SPECIFIED IN THE ADMINISTRATIVE ORDERS REVIEW ACT, 28 U.S.C. 2344 (1964
ED., SUPP. V), THE PETITION WAS DISMISSED AS UNTIMELY.  ON SEPTEMBER 4,
1968, REDERIAKTIEBOLAGET TRANSATLANTIC, RESPONDENT HERE AND ONE OF THE
CARRIER-VESSELS THAT HAD BEEN ASSESSED CHARGES, FILED AN APPLICATION
WITH THE COMMISSION FOR RECONSIDERATION.  TRANSATLANTIC CLAIMED THAT IT
HAD BEEN REPRESENTED BY AN AGENT /11/  IN THE PROCEEDING BROUGHT BY THE
SHIPPING ASSOCIATION AND THUS HAD STANDING TO REQUEST A REHEARING. 
TRAN REHEARING.  TRANSATLANTIC URGED THAT THE COMMISSION'S DECISION WAS
INCONSISTENT WITH THIS COURT'S INTERVENING DECISION IN VOLKSWAGENWERK
AKTIENGESELLSCHAFT V. FMC, 390 U.S. 261 (1968), IN THAT THE COMMISSION
HAD HELD THE TARIFF CHANGE COULD BE EFFECTIVE WITHOUT PRIOR APPROVAL. 
THE COMMISSION DID NOT, HOWEVER, PASS ON THE CLAIM BUT RETURNED THE
PETITION AS UNTIMELY UNDER ITS RULES OF PRACTICE AND PROCEDURE.  /12/ 

TRANSATLANTIC DID NOT SEEK DIRECT JUDICIAL REVIEW OF THE
COMMISSION'S DENIAL OF THE APPLICATION FOR REHEARING.  INSTEAD, IT
MOVED TO INTERVENE /13/  IN THE ACTION STILL PENDING IN THE DISTRICT
COURT.  TRANSATLANTIC ARGUED THAT ITS AGENT HAD PROVIDED INADEQUATE
REPRESENTATION AND THAT IT WOULD BE LIABLE FOR A SUBSTANTIAL PORTION OF
ANY JUDGMENT RENDERED AGAINST THE AGENT.  INTERVENTTON WAS GRANTED. 
THE DISTRICT COURT REFUSED, HOWEVER, TO REVIEW THE MERITS OF THE
COMMISSION'S DECISION AND RENDERED JUDGMENT AGAINST THE SHIPPING
ASSOCIATION AND TRANSATLANTIC.  /14/ 

TRANSATLANTIC, THE ONLY DEFENDANT TO APPEAL, WAS MORE SUCCESSFUL IN
THE COURT OF APPEALS FOR THE FIRST CIRCUIT.  THAT COURT CONCLUDED THAT
TRANSATLANTIC WAS NOT A PARTY TO THE COMMISSION PROCEEDING AND,
THEREFORE, WAS FREE TO SEEK INDEPENDENT COLLATERAL REVIEW OF THE MERITS
OF THE COMMISSION'S ORDER IN THE DISTRICT COURT.  THE COURT OF APPEALS
ALSO ACCEPTED TRANSATLANTIC'S POSITION ON THE MERITS AND REVERSED, /15/
CONCLUDING THAT THE COMMISSION'S RULING WAS INDEED INCONSISTENT WITH
VOLKSWAGENWERK. 

        I 

TRANSATLANTIC ARGUES THAT THE DISTRICT COURT ERRED AT THE OUTSET IN
REFERRING THE CASE TO THE COMMISSION.  BUT THIS COURT RECOGNIZED EARLY
IN THE DEVELOPMENT OF ADMINISTRATIVE AGENCIES THAT COORDINATION BETWEEN
TRADITIONAL JUDICIAL MACHINERY AND THESE AGENCIES WAS NECESSARY IF
CONSISTENT AND COHERENT POLICY WERE TO EMERGE.  SEE TEXAS & P.R. CO. V.
ABILENE COTTON OIL CO., 204 U.S. 426 (1907).  THE DOCTRINE OF PRIMARY
JURISDICTION HAS BECOME ONE OF THE KEY JUDICIAL SWITCHES THROUGH WHICH
THIS CURRENT HAS PASSED.  /16/  WHEN THERE IS A BASIS FOR JUDICIAL
ACTION, INDEPENDENT OF AGENCY PROCEEDINGS, COURTS MAY ROUTE THE
THRESHOLD DECISION AS TO CERTAIN ISSUES TO THE AGENCY CHARGED WITH
PRIMARY RESPONSIBILITY FOR GOVERNMENTAL SUPERVISION OR CONTROL OF THE
PARTICULAR INDUSTRY OR ACTIVITY INVOLVED.  WHITNEY NATIONAL BANK V.
BANK OF NEW ORLEANS, 379 U.S. 411, 425 (1965).  FAR EAST CONFERENCE V.
UNITED STATES, 342 U.S. 570, 574-575 (1952). 

THIS IS AN ALMOST CLASSIC CASE FOR ENGAGING THE DOCTRINE.  PLAINLY,
THE FEDERAL MARITIME COMMISSION IS PRIMARILY RESPONSIBLE FOR
SUPERVISING THESE CONFERENCES OF MARINE TERMINAL OPERATORS.  JUST FIVE
YEARS EARLIER, THE COMMISSION APPROVED THE VERY AGREEMENT THAT
ESTABLISHED THE BASIC PATTERN OF THIS CONFERENCE'S OPERATION, AND THE
SCOPE OF THIS SAME AGREEMENT WAS THE SUBJECT OF THE PRESENT DISPUTE. 
THE COMMISSION WAS UNIQUELY QUALIFIED TO CONSIDER THE DISPUTE IN LIGHT
OF THE OVERALL POLICIES CONCERNING TERMINAL CONFERENCES AND THE
CONFERENCES' RELATIONSHIP WITH BOTH CARRIER-VESSELS AND CONSIGNEES. 
THE DISTRICT COURT DID NOT ERR IN DETERMINING, FOR PURPOSES OF THIS
LITIGATION, THAT AN ARTICLE III COURT, ACTING ON A SINGLE, ISOLATED
CASE-AND-CONTROVERSY RECORD IN A PRIVATE SUIT IN WHICH NEITHER THE
COMMISSION NOR THE GOVERNMENT WAS A PARTY, WOULD LACK THE REQUISITE
CAPACITY.  TAMPA PHOSPHATE R. CO. V. SEABOARD COAST LINE R. CO., 418
F.2D 387, 402-404 (CONCURRING OPINION) (CA5 1969). 

  II 

THE DISTRICT COURT ALSO CONCLUDED CORRECTLY THAT IT WAS WITHOUT
AUTHORITY TO REVIEW THE MERITS OF THE COMMISSION'S DECISION.  THE
ADMINISTRATIVE ORDERS REVIEW ACT IS EXPLICIT:  "THE COURT OF APPEALS
HAS EXCLUSIVE JURISDICTION TO . . . DETERMINE THE VALIDITY OF . . .
SUCH FINAL ORDERS OF THE FEDERAL MARITIME COMMISSION . . . ."  28
U.S.C. 2342 (1964 ED., SUPP. V).  CONSOLO V. FMC, 383 U.S. 607, 613
(1966); FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570, 577
(1952). 

IT IS TRUE THAT SEC. 31 OF THE SHIPPING ACT, 46 U.S.C. 830, STATES
THAT "EXCEPT AS HEREIN OTHERWISE PROVIDED" THE PROCEDURES GOVERNING
SUITS TO "ENFORCE, SUSPEND, OR SET ASIDE, IN WHOLE OR IN PART, ANY
ORDER OF THE (FEDERAL MARITIME COMMISSION)"  /17/  SHALL BE THE SAME AS
IN SIMILAR SUITS IN RESPECT OF ORDERS OF THE INTERSTATE COMMERCE
COMMISSION.  IT IS ALSO TRUE THAT IN 1964 CONGRESS PROVIDED THAT WHEN
COURTS REFER QUESTIONS TO THE INTERSTATE COMMERCE COMMISSION THE
REFERRING COURT SHALL HAVE EXCLUSIVE JURISDICTION TO REVIEW ORDERS
ARISING FROM THE REFERRAL.  28 U.S.C. 1336(B).  /18/ 

THIS COURT IN CONSOLO POINTED OUT, /19/ HOWEVER, THAT THE
REQUIREMENT OF SEC. 31 WAS SUBJECT TO SPECIAL PROVISIONS APPLICABLE TO
MARITIME CASES "SUCH AS THE PROVISION IN SEC. 2 OF THE ADMINISTRATIVE
ORDERS REVIEW ACT THAT DIRECT REVIEW PROCEEDINGS SHALL BE CONDUCTED IN
THE COURTS OF APPEALS RATHER THAN THE DISTRICT COURTS."  383 U.S.,AT
613.  SEE D. L. PIAZZA CO. V. WEST COAST LINE, INC., 210 F.2D 947
(CA2), CERT. DENIED, 348 U.S. 839 (1954).  MOREOVER, IN THE LEGISLATIVE
HISTORY OF THE SPECIAL STATUTE PROVIDING FOR REVIEW OF CASES REFERRED
TO THE COMMERCE COMMISSION, THERE IS NOT EVEN A HINT THAT CONGRESS
THOUGHT OF THE MARITIME COMMISSION WHILE CONSIDERING THE PROBLEM.  AND
TO MAKE THE PROCEDURE ADOPTED THERE APPLICABLE TO MARITIME CASES WOULD
VITIATE THE SCHEME OF THE ADMINISTRATIVE ORDERS REVIEW ACT-- A SCHEME
DESIGNED TO ENSURE THAT THE ATTORNEY GENERAL HAS AN OPPORTUNITY TO
REPRESENT THE INTEREST OF THE GOVERNMENT WHENEVER AN ORDER OF ONE OF
THE SPECIFIED AGENCIES IS REVIEWED.  28 U.S.C. 2348 (1964 ED., SUPP.
V). 

TRANSATLANTIC ARGUES THAT EVEN IF THE ADMINISTRATIVE ORDERS REVIEW
ACT PROVIDES THE EXCLUSIVE METHOD FOR REVIEWING FINAL ORDERS OF THE
MARITIME COMMISSION, THE COMMISSION'S ORDER HERE WAS NOT A FINAL
ORDER.  BUT ITS ARGUMENT THAT THE ORDER LACKED FINALITY BECAUSE IT HAD
NO INDEPENDENT EFFECT ON ANYONE AND RESEMBLED AND INTERLOCUTORY COURT
ORDER DENYING A MOTION TO DISMISS A COMPLAINT HAS THE HOLLOW RING OF
ANOTHER ERA.  /20/ AGENCY ORDERS THAT HAVE NO INDEPENDENT COERCIVE
EFFECT ARE COMMON.  SEE FROZEN FOOD EXPRESS V. UNITED STATES, 351 U.S.
40, 44 (1956).  MOREOVER, THE RELEVANT CONSIDERATIONS IN DETERMINING
FINALITY ARE WHETHER THE PROCESS OF ADMINISTRATIVE DECISIONMAKING HAS
REACHED A STAGE WHERE JUDICIAL REVIEW WILL NOT DISRUPT THE ORDERLY
PROCESS OF ADJUDICATION AND WHETHER RIGHTS OR OBLIGATIONS HAVE BEEN
DETERMINED OR LEGAL CONSEQUENCES WILL FLOW FROM THE AGENCY ACTION.  ICC
V. ATLANTIC COAST LINE R. CO., 383 U.S 576, 602 (1966); ROCHESTER
TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 143 (1939). 

HERE THERE WAS NO POSSIBLE DISRUPTION OF THE ADMINISTRATIVE PROCESS;
THERE WAS NOTHING ELSE FOR THE COMMISSION TO DO.  AND CERTAINLY THE
COMMISSION'S ACTION WAS EXPECTED TO AND DID HAVE LEGAL CONSEQUENCES. 

THE FINAL PROFFERED ARGUMENT TO JUSTIFY A COLLATERAL ATTACK ON THE
COMMISSION'S ORDER IS THAT TRANSATLANTIC WAS NOT A PARTY TO THE
PROCEEDING BEFORE THE COMMISSION AND NOT BOUND BY THE COMMISSION'S
ACTION.  ALTHOUGH TRANSATLANTIC WAS NOT NAMED AS A PARTY, IT WAS IN
FACT REPRESENTED BEFORE THE COMMISSION AND HAS PREVIOUSLY MADE NUMEROUS
CLAIMS TO PARTY STATUS.  /21/  IN THE PETITION FOR RECONSIDERATION
FILED WITH THE COMMISSION, IT ASSERTED THAT IT HAD BEEN REPRESENTED IN
THE ADMINISTRATIVE EVIDENTIARY PROCEEDING THROUGH ITS AGENT.  THE CLAIM
WAS ALSO MADE IN SUPPORT OF THE MOTION TO INTERVENE IN THE RESUMED
DISTRICT COURT PROCEEDING.  THERE TRANSATLANTIC ALLEGED THAT "AT ALL
TIMES" PRIOR TO THE FILING OF THE PETITION FOR RECONSIDERATION WITH THE
COMMISSION IT "HAD BEEN REPRESENTED BY COUNSEL FOR" ITS AGENT AND
CLAIMED THAT THIS REPRESENTATION WAS INADEQUATE. 

EVEN IF TRANSATLANTIC WAS NOT A FORMAL PARTY ITS INTERESTS WERE
CLEARLY AT STAKE.  AND IT HAD EVERY OPPORTUNITY TO PARTICIPATE BEFORE
THE COMMISSION AND THEN TO SEEK TIMELY REVIEW IN THE COURT OF APPEALS. 
IT CHOSE NOT TO DO SO.  CERTAINLY, FROM THIS POSTURE, IT CANNOT FORCE
COLLATERAL REDETERMINATION OF THE SAME ISSUE IN A DIFFERENT AND
INAPPROPRIATE FORUM.  UNITED STATES V. WESTERN P.R. CO., 352 U.S. 59,
69 (1956). 

        III 

SINCE THE TIME FOR COURT OF APPEALS REVIEW HAD RUN, THE DECISION OF
THE FEDERAL MARITIME COMMISSION HAD BECOME FINAL WHEN THE CASE RETURNED
TO THE DISTRICT COURT.  AFTER THAT RETURN NEITHER THE DISTRICT COURT
NOR ANY COURT OF APPEALS NOR THIS COURT HAD OR HAS AUTHORITY TO REVIEW
THE MERITS OF THAT DECISION. 

              REVERSED. 

/1/  THE CHARGE INVOLVED IS "WHARF DEMURRAGE," THE CHARGE ASSESSED
WHEN CARGO REMAINS ON THE PIER OR WHARF AFTER FIVE DAYS, THE FREE TIME
AT THE PORT OF BOSTON.  SEE N. 5, INFRA. 

/2/  AGREEMENT NO. 8785.  THE AGREEMENT SET OUT THE BASIC SCHEME FOR
THE PROTECTED PRICE FIXING ENGAGED IN BY THE TERMINAL OPERATORS. 

/3/  SEE SEC. 15 OF THE SHIPPING ACT, 1916, 39 STAT. 733, AS
AMENDED, 46 U.S.C. 814. 

/4/  THE BASIC WHARF DEMURRAGE CHARGE WAS ASSESSED AGAINST THE
CONSIGNEE AT A DAILY RATE OF 2 1/2 CENTS PER 100 POUNDS.  UNDER THE PRE
1964 TARIFF, IF FACTORS BEYOND THE CONTROL OF THE CONSIGNEE OR SHIPPER
PREVENTED CARGO REMOVAL, WHARF DEMURRAGE WOULD BE ASSESSED AGAINST THE
CONSIGNEE AT A DAILY RATE OF 1 CENT PER 100 POUNDS. 

/5/  WHEN CARGO IS BROUGHT TO THE WHARF IT IS CONSIDERED REASONABLE
FOR THERE TO BE A DELAY OF UP TO FIVE DAYS BEFORE THE CARGO IS LOADED
ON THE VESSEL OR TAKEN AWAY BY THE CONSIGNEE. 

/6/  THE MEMBERS OF THE SHIPPING ASSOCIATION, INCLUDING FURNESS,
WTTHY & CO., LTD., TRANSATLANTIC'S AGENT AT THE PORT OF BOSTON, WERE
ALSO NAMED AS DEFENDANTS. 

/7/  SEE VOLKSWAGENWERK AKTIENGESELLSCHAFT V. FMC, 390 U.S. 261
(1968). 

/8/  BOSTON SHIPPING ASSN. V. PORT OF BOSTON MARINE TERMINAL ASSN.,
10 F.M.C. 409, 414 (1967).     /9/  "NO COMMON CARRIER BY WATER IN
FOREIGN COMMERCE SHALL DEMAND, CHARGE, OR COLLECT ANY RATE, FARE, OR
CHARGE WHICH IS UNJUSTLY DISCRIMINATORY BETWEEN SHIPPERS OR PORTS, OR
UNJUSTLY PREJUDICIAL TO COMPETITORS.  WHENEVER THE FEDERAL MARITIME
BOARD FINDS THAT ANY SUCH RATE, FARE, OR CHARGE IS DEMANDED, CHARGED,
OR COLLECTED IT MAY ALTER THE SAME TO THE EXTENT NECESSARY TO CORRECT
SUCH UNJUST DISCRIMINATION OR PREJUDICE AND MAKE AN ORDER THAT THE
CARRIER SHALL DISCONTINUE DEMANDING, CHARGING, OR COLLECTING ANY SUCH
UNJUSTLY DISCRIMINATORY OR PREJUDICIAL RATE, FARE, OR CHARGE. 

"EVERY SUCH CARRIER AND EVERY OTHER PERSON SUBJECT TO THIS CHAPTER
SHALL ESTABLISH, OBSERVE, AND ENFORCE JUST AND REASONABLE REGULATIONS
AND PRACTICES RELATING TO OR CONNECTED WITH THE RECEIVING, HANDLING,
STORING, OR DELIVERING OF PROPERTY.  WHENEVER THE BOARD FINDS THAT ANY
SUCH REGULATION OR PRACTICE IS UNJUST OR UNREASONABLE IT MAY DETERMINE,
PRESCRIBE, AND ORDER ENFORCED A JUST AND REASONABLE REGULATION OR
PRACTICE."  46 U.S.C. 816. 

/10/  THE COMMISSION ALSO HELD THAT THE SHIFT IN THE INCIDENCE OF
THE CHARGE DID NOT CONFLICT WITH THE RIGHTS AND DUTIES OF A CARRIER
UNDER THE REGULAR LEGALLY BINDING TARIFF.  IT FOUND A PRE-EXISTING DUTY
ONTHE CARRIER NOT ONLY TO DEPOSIT THE CARGO ON THE PIER BUT ALSO TO
ARRANGE FOR THE CONSIGNEE TO HAVE ACCESS TO THE CARGO AND SUFFICIENT
TIME, I.E., FREE TIME, TO REMOVE IT. 

/11/  TRANSATLANTIC'S PETITION FOR RECONSIDERATION STATED THAT "(IT
IS REPRESENTED IN BOSTON BY ITS AGENT, FURNESS, WITHY & CO."  AND THAT
"FRNESS, WITHY IS A MEMBER OF . . . SHIPPING . . . WHICH, WITH ITS
MEMBER LINES, FILED THE COMPLAINT IN THIS PROCEEDING (BEFORE THE
COMMISSION)."  THE PETITION FURTHER STATED THAT THE TERMINAL
ASSOCIATION CLAIMED THE SUMS "FROM FURNESS, WITHY AS AGENT OF
PETITIONER UNDER THE DISPUTED TARIFF PROVISIONS." 

/12/  PETITIONS FOR RECONSIDERATION ARE REQUIRED TO BE FILED WITHIN
"30 DYAS AFTER ISSUANCE OF A FINAL DECISION OR ORDER BY THE COMMISSION
. . . ."  46 CFR 502.261. 

/13/  SEE FED. RULE CIV. PROC. 24(A). 

/14/  THE JUDGMENT ENTERED BY THE DISTRICT COURT DID NOT SPECIFY
TRANSATLANTIC AS ONE OF THF PARTIES-DEFENDANT DIRECTLY LIABLE TO THE
TERMINAL OPERATORS.  IT IDD, HOWEFVER, PROVIDE THAT TRANSATLANTIC'S
AGENT, FURNESS, WITHY & CO., WAS LIABLE FOR $10,708.87.  IT IS CLAIMED
THT TRANSATLANTIC WILL BE LIABLE FOR $8,154.85 OF THIS AMOUNT 

/15/  PORT OF BOSTON MARINE TERMINAL ASSN. V. BOSTON SHIPPING ASSN.,
INC. INC., 420 F.2D 419 (CA1 1970). 

/16/  CIVIL AERONAUTICS BOARD V. MODERN AIR TRANSPORT, 179 F.2D 622,
625 (CA2 1950); 3 K. DAVIS, ADMINISTRATIVE LAW SECS. 19.01-19.07
(1958); JAFFE, PRIMARY JURISDICTION RECONSIDERED.  THE ANTI-TRUST LAWS,
102 U.PA.L.REV.  577 (1954). 

/17/  THE AGENCY ENTRUSTED WITH THE DUTY OF ADMINISTERING THE
SHIPPING ACT HAS UNDERGONE MANY REORGANIZATIONS AND CONCOMITANT NAME
CHANGES SINCE ITS CREATION IN 1916. 

/18/  "WHEN A DISTRICT COURT OR THE COURT OF CLAIMS REFERS A
QUESTION OR ISSUE TO THE INTERSTATE COMMERCE COMMISSION FOR
DETERMINATION, THE COURT WHICH REFERRED THE QUESTION OR ISSUE SHALL
HAVE EXCLUSIVE JURISDICTION OF A CIVIL ACTION TO ENFORCE, ENJOIN, SET
ASIDE, ANNUL, OR SUSPEND, IN WHOLE OR IN PART, ANY ORDER OF THE
INTERSTATE COMMERCE COMMISSION ARISING OUT OF SUCH REFERRAL."  28
U.S.C. 1336(B). 

/19/  VOLKSWAGENWERK, THE BASIS FOR TRANSATLANTIC'S CLAIM THAT THE
COMMISSION ERRED, WAS REFERRED TO THE COMMISSION BY A DISTRICT COURT
AND THE COMMISSION'S ORDER WAS ATTACKED DIRECTLY IN THE COURT OF
APPEALS.  390 U.S.AT 266-267. 

/20/  SEE, E.G., MUSKRAT V. UNITED STATES, 219 U.S. 346 (1911).  SEE
GENERALLY 3 K. DAVIS, SUPRA, SECS. 21.01-21.10. 

/21/  SEE N. 11, SUPRA. 

JOHN M. REED ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

GEORGE F. GALLAND ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR THE UNITED STATES ET AL. AS
AMICI CURIAE.  ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL MCLAREN, DEPUTY SOLICITOR GENERAL SPRINGER, IRWIN A.
SEIBEL, AND GORDON M. SHAW. 
..END :

















ATLANTIC CITY ELECTRIC CO. V. UNITED STATES, 400 U.S. 73 


       ATLANTIC CITY ELECTRIC CO. ET AL. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK

   NO. 78.  ARGUED NOVEMBER 12, 1970-- DECIDED DECEMBER 8, 1970

            /1/ 


NO. 78, 306 F.SUPP.  338, AND NO. 106, 316 F.SUPP.  337, AFFIRMED BY
AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENTS ARE AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

/1/  TOGETHER WITH NO. 106, ALABAMA POWER CO. ET AL. V. UNITED
STATES ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA. 

JAMES O'MALLEY, JR., ARGUED THE CAUSE FOR APPELLANTS IN NO. 78. 
WITH HIM ON THE BRIEFS WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW
YORK, WALTER J. MYSKOWSKI, SHEILA H. MARSHALL, AND ALFRED E. FROH. 
CHARLES J. MCCARTHY ARGUED THE CAUSE FOR APPELLANTS IN NO. 106.  WITH
HIM ON THE BRIEFS WERE ARTHUR L. WINN, JR., J. RAYMOND CLARK, AND
RICHARD J. HARDY. 

DEPUTY SOLICITOR GENERAL SPRINGER ARGUED THE CAUSE FOR THE UNITED
STATES ET AL. IN BOTH CASES.  WITH HIM ON THE BRIEF WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN, HOWARD E.
SHAPIRO, EDWARD M. SHULMAN, WILLIAM A. IMHOF, ROBERT W. GINNANE, AND
ARTHUR J. CERRA.  HUGH B. COX ARGUED THE CAUSE FOR APPELLEES ABERDEEN &
ROCKFISH RAILROAD CO. ET AL. IN BOTH CASES.  WITH HIM ON THE BRIEF WERE
WILLIAM H. ALLEN AND MICHAEL BOUDIN. 

JOHN F. DONELAN AND JOHN M. CLEARY FILED A BRIEF IN NO. 106 FOR THE
NATIONAL INDUSTRIAL TRAFFIC LEAGUE AS AMICUS CURIAE URGING REVERSAL. 
..END :








NORTH CAROLINA V. ALFORD, 400 U.S. 25 


       NORTH CAROLINA V. ALFORD

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 14.  ARGUED NOVEMBER 17, 1969-- REARGUED OCTOBER 14,

           1970-- DECIDED NOVEMBER 23,1970 


APPELLEE WAS INDICTED FOR THE CAPITAL CRIME OF FIRST-DEGREE MURDER. 
AT THAT TIME NORTH CAROLINA LAW PROVIDED FOR THE PENALTY OF LIFE
IMPRISONMENT WHEN A PLEA OF GUILTY WAS ACCEPTED TO A FIRST-DEGREE
MURDER CHARGE; FOR THE DEATH PENALTY FOLLOWING A JURY VERDICT OF
GUILTY, UNLESS THE JURY RECOMMENDED LIFE IMPRISONMENT; AND FOR A
PENALTY OF FROM TWO TO 30 YEARS' IMPRISONMENT FOR SECOND-DEGREE
MURDER.  APPELLEE'S ATTORNEY, IN THE FACE OF STRONG EVIDENCE OF GUILT,
RECOMMENDED A GUILTY PLEA, BUT LEFT THE DECISION TO APPELLEE.  THE
PROSECUTOR AGREED TO ACCEPT A PLEA OF GUILTY TO SECOND-DEGREE MURDER. 
THE TRIAL COURT HEARD DAMAGING EVIDENCE FROM CERTAIN WITNESSES BEFORE
ACCEPTING A PLEA.  APPELLEE PLEADED GUILTY, ALTHOUGH DISCLAIMING
GUILTY, BECAUSE OF THE THREAT OF THE COURT OF APPEALS, ON AN APPEAL
FROM A DENIAL OF A WRIT OF HABEAS CORPUS, FOUND THAT APPELLEE'S GUILTY
PLEA WAS INVOLUNTARY BECAUSE IT WAS MOTIVATED PRINCIPALLY BY FEAR OF
THE DEATH PENALTY.  HELD:  THE TRIAL JUDGE DID NOT COMMIT
CONSTITUTIONAL ERROR IN ACCEPTING APPELLEE'S GUILTY PLEA.  PP. 31-39. 

(A) A GUILTY PLEA THAT REPRESENTS A VOLUNTARY AND INTELLIGENT CHOICE
AMONG THE ALTERNATIVES AVAILABLE TO A DEFENDANT, ESPECIALLY ONE
REPRESENTED BY COMPETENT COUNSEL, IS NOT COMPELLED WITHIN THE MEANING
OF THE FIFTH AMENDMENT BECAUSE IT WAS ENTERED TO AVOID THE POSSIBILITY
OF THE DEATH PENALTY.  BRADY V. UNITED STATES, 397 U.S. 742.  P. 31. 

(B) HUDSON V. UNITED STATES, 272 U.S. 451, WHICH HELD THAT A FEDERAL
COURT MAY IMPOSE A PRISON SENTENCE AFTER ACCEPTING A PLEA OF NOLO
CONTENDERE, IMPLICITLY RECOGNIZED THAT THERE IS NO CONSTITUTIONAL BAR
TO IMPOSING A PRISON SENTENCE UPON AN ACCUSED WHO IS UNWILLING TO ADMIT
GUILTY BUT WHO IS WILLING TO WAIVE TRIAL AND ACCEPT THE SENTENCE.  PP.
35-36. 

(C) AN ACCUSED MAY VOLUNTARILY, KNOWINGLY, AND UNDERSTANDINGLY
CONSENT TO THE IMPOSITION OF A PRISON SENTENCE EVEN THOUGH HE IS
UNWILLING TO ADMIT PARTICIPATION IN THE CRIME, OR EVEN IF HIS GUILTY
PLEA CONTAINS A PROTESTATION OF INNOCENCE, WHEN, AS HERE, HE
INTELLIGENTLY CONCLUDES THAT HIS INTERESTS REQUIRE A GUILTY PLEA AND
THE RECORD STRONGLY EVIDENCES GUILTY.  PP. 37-38. 

(D) THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS DO NOT PROHIBIT
THE STATES FROM ACCEPTING PLEAS TO LESSER INCLUDED OFFENSES.  P. 39. 

405 F.2D 340, VACATED AND REMANDED. 

WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER,
C.J., AND HARLAN, STEWART, AND BLACKMUN, JJ., JOINED.  BLACK, J., FILED
A STATEMENT CONCURRING IN THE JUDGMENT, POST, P. 39.  BRENNAN, J.,
FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MARSHALL, JJ., JOINED,
POST, P. 39. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 2, 1963, ALFORD WAS INDICTED FOR FIRST-DEGREE MURDER, A
CAPITAL OFFENSE UNDER NORTH CAROLINA LAW.  /1/  THE COURT APPOINTED AN
ATTORNEY TO REPRESENT HIM, AND THIS ATTORNEY QUESTIONED ALL BUT ONE OF
THE VARIOUS WITNESSES WHO APPELLEE SAID WOULD SUBSTANTIATE HIS CLAIM OF
INNOCENCE.  THE WITNESSES, HOWEVER, DID NOT SUPPORT ALFORD'S STORY BUT
GAVE STATEMENTS THAT STRONGLY INDICATED HIS GUILTY.  FACED WITH STRONG
EVIDENCE OF TU GUILT AND NO SUBSTANTIAL EVIDENTIARY SUPPORT FOR THE
CLAIM OF INNOCENCE, ALFORD'S ATTORNEY RECOMMENDED THAT HE PLEAD GUILTY,
BUT LEFT THE ULTIMATE DECISION TO ALFORD HIMSELF.  THE PROSECUTOR
AGREED TO ACCEPT A PLEA OF GUILTY TO A CHARGE OF SECOND-DEGREE MURDER,
AND ON DECEMBER 10, 1963, ALFORD PLEADED GUILTY TO THE REDUCED CHARGE. 

BEFORE THE PLEA WAS FINALLY ACCEPTED BY THE TRIAL COURT, THE COURT
HEARD THE SWORN TESTIMONY OF A POLICE OFFICER WHO SUMMARIZED THE
STATE'S CASE.  TWO OTHER WITNESSES BESIDES ALFORD WERE ALSO HEARD. 
ALTHOUGH THERE WAS NO EYEWITNESS TO THE CRIME,THE TESTIMONY INDICATED
THT SHORTLY BEFORE THE KILLING ALFORD TOOK HIS GUN FROM HIS HOUSE,
STATED HIS INTENTION TO KILL THE VICTIM, AND RETURNED HOME WITH THE
DECLARATION THAT HE HAD CARRIED OUT THE KILLING.  AFTER THE SUMMARY
PRESENTATION OF THE STATE'S CASE, ALFORD TOOK THE STAND AND TESTIFIED
THE HE HAD NOT COMMITTED THE MURDER BUT THAT HE WAS PLEADING GUILTY
BECAUSE HE FACED THE THREAT OF THE DEATH PENALTY IF HE DID NOT DO SO. 
/2/  IN RESPONSE TO THE QUESTIONS OF HIS COUNSEL, HE ACKNOWLEDGE THAT
HIS COUNSEL HAD INFORMED HIM OF THE DIFFERENCE BETWEEN SECOND- AND
FIRST-DEGREE MURDER AND OF HIS RIGHTS IN CASE HE CHOSE TO GO TO TRIAL. 
/3/  THE TRIAL COURT THEN ASKED APPELLEE IF, IN LIGHT OF HIS DENIAL OF
GUILT, HE STILL DESIRED TO PLEAD GUILTY TO SECOND-DEGREE MURDER AND
APPELLEE ANSWERED, "YES, SIR.  I PLEAD GUILTY ON-- FROM THE
CIRCUMSTANCES THAT HE (ALFORD'S ATTORNEY) TOLD ME."  AFTER ELICITING
INFORMATION ABOUT ALFORD'S PRIOR CRIMINAL RECORD, WHICH WAS A LONG ONE,
/4/  THE TRIAL COURT SENTENCED HIM TO 30 YEARS' IMPRISONMENT, THE
MAXIMUM PENALTY FOR SECOND-DEGREE MURDER.  /5/ 

ALFORD SOUGHT POST-CONVICTION RELIEF IN THE STATE COURT.  AMONG THE
CLAIMS RAISED WAS THE CLAIM THAT HIS PLEA OF GUILTY WAS INVALID BECAUSE
IT WAS THE PRODUCT OF FEAR AND COERCION.  AFTER A HEARING, THE STATE
COURT IN 1965 FOUND THAT THE PLEA WAS "WILLINGLY, KNOWINGLY, AND
UNDERSTANDINGLY" MADE ON THE ADVICE OF COMPETENT COUNSEL AND IN THE
FACE OF A STRONG PROSECUTION CASE.  SUBSEQUENTLY, ALFORD PETITIONED FOR
A WRIT OF HABEAS CORPUS, FIRST IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA, AND THEN IN THE COURT OF APPEALS
FOR THE FOURTH CIRCUIT.  BOTH COURTS DENIED THE WRIT ON THE BASIS OF
THE STATE COURT'S FINDINGS THAT ALFORD VOLUNTARILY AND KNOWINGLY AGREED
TO PLEAD GUILTY.  IN 1967, ALFORD AGAIN PETITIONED FOR A WRIT OF HABEAS
CORPUS IN THE DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH
CAROLINA.  THAT COURT, WITHOUT AN EVIDENTIARY HEARING, AGAIN DENIED
RELIEF ON THE GROUNDS THAT THE GUILTY PLEA WAS VOLUNTARY AND WAIVED ALL
DEFENSES AND NONJURISDICTIONAL DEFECTS IN ANY PRIOR STAGE OF THE
PROCEEDINGS, AND THAT THE FINDINGS OF THE STATE COURT IN 1965 CLEARLY
REQUIRED REJECTION OF ALFORD'S CLAIM THAT HE WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL PRIOR TO PLEADING GUILTY.  ON APPEAL, A DIVIDED
PANEL OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT REVERSED ON THE
GROUND THAT ALFORD'S GUILTY PLEA WAS MADE INVOLUNTARILY.  405 F.2D 340
(1968).  IN REACHING ITS CONCLUSION, THE COURT OF APPEALS RELIED
HEAVILY ON UNITED STATES V. JACKSON, 390 U.S. 570 (1968), WHICH THE
COURT READ TO REQUIRE INVALIDATION OF THE NORTH CAROLINA STATUTORY
FRAMEWORK FOR THE IMPOSITION OF THE DEATH PENALTY BECAUSE NORTH
CAROLINA STATUTES ENCOURAGED DEFENDANTS TO WAIVE CONSTITUTIONAL RIGHTS
BY THE PROMISE OF NO MORE THAN LIFE IMPRISONMENT IF A GUILTY PLEA WAS
OFFERED AND ACCEPTED.  CONCEDING THAT JACKSON DID NOT REQUIRE THE
AUTOMATIC INVALIDATION OF PLEAS OF GUILTY ENTERED UNDER THE NORTH
CAROLINA STATUTES, THE COURT OF APPEALS RULED THAT ALFORD'S GUILTY PLEA
WAS INVOLUNTARY BECAUSE ITS PRINCIPAL MOTIVATION WAS FEAR OF THE DEATH
PENALTY.  BY THIS STANDARD, EVEN IF BOTH THE JUDGE AND THE JURY HAD
POSSESSED THE POWER TO IMPOSE THE DEATH PENALTY FOR FIRST-DEGREE MURDER
OR IF GUILTY PLEAS TO CAPITAL CHARGES HAD NOT BEEN PERMITTED, ALFORD'S
PLEA OF GUILTY TO SECOND-DEGREE MURDER SHOULD STILL HAVE BEEN REJECTED
BECAUSE IMPERISSIBLY INDUCED BY HIS DESIRE TO ELIMINATE THE POSSIBILITY
OF A DEATH SENTENCE.  /6/  WE NOTED PROBABLE JURISDICTION.  394 U.S.
956 (1969).  WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE FOR FURTHER PROCEEDINGS. 

WE HELD IN BRADY V. UNITED STATES, 397 U.S. 742 (1970), THAT A PLEA
OF GUILTY WHICH WOULD NOT HAVE BEEN ENTERED EXCEPT FOR THE DEFENDANT'S
DESIRE TO AVOID A POSSIBLE DEATH PENALTY AND TO LIMIT THE MAXIMUM
PENALTY OF LIFE IMPRISONMENT OR A TERM OF YEARS WAS NOT FOR THAT REASON
COMPELLED WITHIN THE MEANING OF THE FIFTH AMENDMENT.  JACKSON
ESTABLISHED NO NEW TEST FOR DETERMINING THE VALIDITY OF GUILTY PLEAS. 
THE STANDARD WAS AND REMAINS WHETHER THE PLEA REPRESENTS A VOLUNTARY
AND INTELLIGENT CHOICE AMONG THE ALTERNATIVE COURSES OF ACTION OPEN TO
THE DEFENDANT.  SEE BOYKIN V. ALABAMA, 395 U.S. 238, 242 (1969);
MACHIBRODA V. UNITED STATES, 368 U.S. 487, 493 (1962); KERCHEVAL V.
UNITED STATES, 274 U.S. 220, 223 (1927).  THAT HE WOULD NOT HAVE
PLEADED EXCEPT FOR THE OPPORTUNITY TO LIMIT THE POSSIBLE PENALTY DOES
NOT NECESSARILY DEMONSTRATE THAT THE PLEA OF GUILTY WAS NOT THE PRODUCT
OF A FREE AND RATIONAL CHOICE, ESPECIALLY WHERE THE DEFENDANT WAS
REPRESENTED BY COMPETENT COUNSEL WHOSE ADVICE WAS THAT THE PLEA WOULD
BE TO THE DEFENDANT'S ADVANTAGE.  THE STANDARD FASHIONED AND APPLIED BY
THE COURT OF APPEALS WAS THEREFORE ERRONEOUS AND WE WOULD, WITHOUT
MORE, VACATE AND REMAND THE CASE FOR FURTHER PROCEEDINGS WITH RESPECT
TO ANY OTHER CLAIMS OF ALFORD WHICH ARE PROPERLY BEFORE THAT COURT, IF
IT WERE NOT FOR OTHER CIRCUMSTANCES APPEARING IN THE RECORD WHICH MIGHT
SEEM TO WARRANT AN AFFIRMANCE OF THE COURT OF APPEALS. 

AS PREVIOUSLY RECOUNTED, AFTER ALFORD'S PLEA OF GUILTY WAS OFFERED
AND THE STATE'S CASE WAS PLACED BEFORE THE JUDGE, ALFORD DENIED THAT HE
HAD COMMITTED THE MURDER BUT REAFFIRMED HIS DESIRE TO PLEAD GUILTY TO
AVOID A POSSIBLE DEATH SENTENCE AND TO LIMIT THE PENALTY TO THE 30-YEAR
MAXIMUM PROVIDED FOR SECOND-DEGREE MURDER.  ORDINARILY, A JUDGMENT OF
CONVICTION RESTING ON A PLEA OF GUILTY IS JUSTIFIED BY THE DEFENDANT'S
ADMISSION THAT HE COMMITTED THE CRIME CHARGED AGAINST HIM AND HIS
CONSENT THAT JUDGMENT BE ENTERED WITHOUT A TRIAL OF ANY KIND.  THE PLEA
USUALLY SUBSUMES BOTH ELEMENTS, AND JUSTIFIABLY SO, EVEN THOUGH THERE
IS NO SEPARATE, EXPRESS ADMISSION BY THE DEFENDANT THAT HE COMMITTED
THE PARTICULAR ACTS CLAIMED TO CONSTITUTE THE CRIME CHARGED IN THE
INDICTMENT.  SEE BRADY V. UNITED STATES, SUPRA, AT 748; MCCARTHY V.
UNITED STATES, 394 U.S. 459, 466 (1969).  HERE ALFORD ENTERED HIS PLEA
BUT ACCOMPANIED IT WITH THE STATEMENT THAT HE HAD NOT SHOT THE VICTIM. 

IF ALFORD'S STATEMENTS WERE TO BE CREDITED AS SINCERE ASSERTIONS OF
HIS INNOCENCE, THERE OBVIOUSLY EXISTED A FACTUAL AND LEGAL DISPUTE
BETWEEN HIM AND THE STATE.  WITHOUT MORE, IT MIGHT BE ARGUED THAT THE
CONVICTION ENTERED ON HIS GUILTY PLEA WAS INVALID, SINCE HIS ASSERTION
OF INNOCENCE NEGATIVED ANY ADMISSION OF GUILTY, WHICH, AS WE OBSERVED
LAST TERM IN BRADY, IS NORMALLY "(CENTRAL TO THE PLEA AND THE
FOUNDATION FOR ENTERING JUDGMENT AGAINST THE DEFENDANT . . . ."  397
U.S.,AT 748. 

IN ADDITION TO ALFORD'S STATEMENT, HOWEVER, THE COURT HAD HEARD AN
ACCOUNT OF THE EVENTS ON THE NIGHT OF THE MURDER, INCLUDING INFORMATION
FROM ALFORD'S ACQUAINTANCES THAT HE HAD DEPARTED FROM HIS HOME WITH HIS
GUN STATING HIS INTENTION TO KILL AND THAT HE HAD LATER DECLARED THAT
HE HAD CARRIED OUT HIS INTENTION.  NOR HAD ALFORD WAVERED IN HIS DESIRE
TO HAVE THE TRIAL COURT DETERMINE HIS GUILT WITHOUT A JURY TRIAL. 
ALTHOUGH DENYING THE CHARGE AGAINST HIM, HE NEVERTHELESS PREFERRED THE
DISPUTE BETWEEN HIM AND THE STATE TO BE SETTLED BY THE JUDGE IN THE
CONTEXT OF A GUILTY PLEA PROCEEDING RATHER THAN BY A FORMAL TRIAL. 
THEREUPON, WITH THE STATE'S TELLING EVIDENCE AND ALFORD'S DENIAL BEFORE
IT, THE TRIAL COURT PROCEEDED TO CONVICT AND SENTENCE ALFORD FOR SECOND
DEGREE MURDER. 

STATE AND LOWER FEDERAL COURTS ARE DIVIDED UPON WHETHER A GUILTY
PLEA CAN BE ACCEPTED WHEN IT IS ACCOMPANIED BY PROTESTATIONS OF
INNOCENCE AND HENCE CONTAINS ONLY A WAIVER OF TRIAL BUT NO ADMISSION OF
GUILT.  SOME COURTS, GIVING EXPRESSION TO THE PRINCIPLE THAT "(OUR LAW
ONLY AUTHORIZES A CONVICTION WHERE GUILTY IS SHOWN," HARRIS V. STATE,
76 TEX.CR.R. 126, 131, 172 S.W. 975, 977 (1915), REQUIRE THAT TRIAL
JUDGES REJECT SUCH PLEAS.  SEE, E.G., HULSEY V. UNITED STATES, 369 F.2D
284, 287 (CA5 1966); UNITED STATES EX REL. ELKSNIS V. GILLIGAN, 256
F.SUPP.  244, 255-257 (SDNY 1966); PEOPLE V. MORRISON, 348 MICH. 88, 81
N.W.2D 667 (1957); STATE V. REALI, 26 N.J. 222, 139 A.2D 300 (1958);
STATE V. LEYBA, 80 N.M. 190, 193, 453 P.2D 211, 214 (1969); STATE V.
STACY, 43 WASH.2D 358, 361-364, 261 P.2D 400, 402-403 (1953).  BUT
OTHERS HAVE CONCLUDED THAT THEY SHOULD NOT "FORCE ANY DEFENSE ON A
DEFENDANT IN A CRIMINAL CASE," PARTICULARLY WHEN ADVANCEMENT OF THE
DEFENSE MIGHT "END IN DISASTER . . . ."  TREMBLAY V. OVERHOLSER, 199
F.SUPP.  569, 570 (DC 1961).  THEY HAVE ARGUED THAT, SINCE "GUILT, OR
THE DEGREE OF GUILT, IS AT TIMES UNCERTAIN AND ELUSIVE," "(AN ACCUSED,
THOUGH BELIEVING IN OR ENTERTAINING DOUBTS RESPECTING HIS INNOCENCE,
MIGHT REASONABLY CONCLUDE A JURY WOULD BE CONVINCED OF HIS GUILT AND
THAT HE WOULD FARE BETTER IN THE SENTENCE BY PLEADING GUILTY . . . ." 
MCCOY V. UNITED STATES, 124 U.S.APP.D.C. 177, 179, 363 F.2D 306, 308
(1966).  AS ONE STATE COURT OBSERVED NEARLY A CENTURY AGO, "(REASONS
OTHER THAN THE FACT THAT HE IS GUILTY MAY INDUCE A DEFENDANT TO SO
PLEAD, . . . (AND) (HE MUST BE PERMITTED TO JUDGE FOR HIMSELF IN THIS
RESPECT."  STATE V. KAUFMAN, 51 IOWA 578, 580, 2 N.W. 275, 276 (1879)
(DICTUM).  ACCORD, E.G., GRIFFIN V. UNITED STATES, 132 U.S.APP.D.C.
108, 405 F.2D 1378 (1968); BRUCE V. UNITED STATES, 126 U.S.APP.D.C.
336, 342-343, 379 F.2D 113, 119-120 (1967); CITY OF BURBANK V. GENERAL
ELECTRIC CO., 329 F.2D 825, 835 (CA9 1964) (DICTUM); STATE V. MARTINEZ,
89 IDAHO 129, 138, 403 P.2D 597, 602-603 (1965); PEOPLE V. HETE
HETHERINGTON, 379 ILL. 71, 39 N.E.2D 361 (1942); STATE EX REL. CROSSLEY
V. TAHASH, 263 MINN. 299, 307-308, 116 N.W.2D 666, 672 (1962);
COMMONWEALTH V. COTTRELL, 433 PA. 177, 249 A.2D 294 (1969).  CF. UNITED
STATES EX REL. BROWN V. LAVALLEE, 424 F.2D 457 (CA2 1970).  /7/  HIS
COURT HAS NOT 

THIS COURT HAS NOT CONFRONTED THIS PRECISE ISSUE, BUT PRIOR
DECISIONS DO YIELD RELEVANT PRINCIPLES.  IN LYNCH V. OVERHOLSER, 369
U.S. 705 (1962), LYNCH, WHO HAD BEEN CHARGED IN THE MUNICIPAL COURT OF
THE DISTRICT OF COLUMBIA WITH DRAWING AND NEGOTIATING BAD CHECKS, A
MISDEMEANOR PUNISHABLE BY A MAXIMUM OF ONE YEAR IN JAIL, SOUGHT TO
ENTER A PLEA OF GUILTY, BUT THE TRIAL JUDGE REFUSED TO ACCEPT THE PLEA
SINCE PSYCHIATRIC REPORT IN THE JUDGE'S POSSESSION INDICATED THAT LYNCH
HAD BEEN SUFFERING FROM "A MANIC DEPRESSIVE PSYCHOSIS, AT THE TIME OF
THE CRIME CHARGED," AND HENCE MIGHT HAVE BEEN NOT GUILTY BY REASON OF
INSANITY.  ALTHOUGH AT THE SUBSEQUENT TRIAL LYNCH DID NOT RELY ON THE
INSANITY DEFENSE, HE WAS FOUND NOT GUILTY BY REASON OF INSANITY AND
COMMITTED FOR AN INDETERMINATE PERIOD TO A MENTAL INSTITUTION.  ON
HABEAS CORPUS, THE COURT ORDERED HIS RELEASE, CONSTRUING THE
CONGRESSIONAL LEGISLATION SEEMINGLY AUTHORIZING THE COMMITMENT AS NOT
REACHING A CASE WHERE THE ACCUSED PREFERRED A GUILTY PLEA TO A PLEA OF
INSANITY.  THE COURT EXPRESSLY REFUSED TO RULE THAT LYNCH HAD AN
ABSOLUTE RIGHT TO HAVE HIS GUILTY PLEA ACCEPTED, SEE ID., AT 719, BUT
IMPLED THAT THERE WOULD HAVE BEEN NO CONSTITUTIONAL ERROR HAD HIS PLEA
BEEN ACCEPTED EVEN THOUGH EVIDENCE BEFORE THE JUDGE INDICATED THAT
THERE WAS A VALID DEFENSE. 

THE ISSUE IN HUDSON V. UNITED STATES, 272 U.S. 451 (1926), WAS
WHETHER A FEDERAL COURT HAS POWER TO IMPOSE A PRISON SENTENCE AFTER
ACCEPTING A PLEA OF NOLO CONTENDERE, A PLEA BY WHICH A DEFENDANT DOES
NOT EXPRESSLY ADMIT HIS GUILT, BUT NONETHELESS WIAVES HIS RIGHT TO A
TRIAL AND AUTHORIZES THE COURT FOR PURPOSES OF THE CASE TO TREAT HIM AS
IF HE WERE GUILTY.  /8/  THE COURT HELD THAT A TRIAL COURT DOES HAVE
SUCH POER, AND, EXCEPT FOR THE CASES WHICH WERE REJECTED IN HUDSON, /9/
THE FEDERAL COURTS HAVE UNIFORMLY FOLLOWED THIS RULE, EVEN IN CASES
INVOLVING MORAL TURPITUDE.  BRUCE V. UNITED STATES, SUPRA, AT 343 N.
20, 379 F.2D,AT 120 N. 20 (DICTUM).  SEE, E.G., LOTT V. UNITED STATES,
367 U.S. 421 (1961) (FRAUDULENT EVASION OF INCOME TAX); SULLIVAN V.
UNITED STATES, 348 U.S.170 (1954) (IBID.); FARNSWORHT V. ZERBST, 98
F.2D 541 (CA5 1938) (ESPIONAGE); PHARR V. UNITED STATES, 48 F.2D 767
(CA6 1931) (MISAPPLICATION OF BANK FUNDS); UNITED STATES V. BAGLIORE,
182 F.SUPP.  714 (EDNY 1960) RECEIVING STOLEN PROPERTY).  IMPLICIT IN
THE NOLO CONTENDERE CASES IS A RECOGNITION THT THE CONSTITUTION DOES
NOT BAR IMPOSITION OF A PRISON SENTENCE UPON AN ACCUSED WHO IS
UNWILLING EXPRESSLY TO ADMIT HIS GUILT BUT WHO FACED WITH GRIM
ALTERNATIVES, IS WILLING TO WAIVE HIS TRIAL AND ACCEPT THE SENTENCE. 
THESE CASES WOULD BE DIRECTLY IN POINT IF ALFORD HAD SIMPLY INSISTED
ON HIS PLEA BUT REFUSED TO ADMIT THE CRIME.  THE FACT THAT HIS PLEA WAS
DENOMINATED A PLEA OF GUILTY RATHER THAN A PLEA OF NOLO CONTENDERE IS
OF NO CONSTITUTIONAL SIGNIFICANCE WITH RESPECT TO THE ISSUE NOW BEFORE
US, FOR THE CONSTITUTION IS CONCERNED WITH THE PRACTICAL CONSEQUENCES,
NOT THE FORMAL CATEGORIZATIONS, OF STATE LAW.  SEE SMITH V. BENNETT,
365 U.S. 708, 712 (1961; JONES V. UNITED STATES, 362 U.S. 257, 266
(1960).  CF. KERMAREC V. COMPAGNIE GENERALE TRANSATLANTIQUE, 358 U.S.
625, 630-632 (1959).  THUS, WHILE MOST PLEAS OF GUILTY CONSIST OF BOTH
A WAIVER OF TRIAL AND AN EXPRESS ADMISSION OF GUILTY, THE LATTER
ELEMENT IS NOT A CONSTITUTIONAL REQUISITE TO THE IMPOSITION OF CRIMINAL
PENALTY.  AN INDIVIDUAL ACCUSED OF CRIME MAY VOLUNTARILY, KNOWINGLY,
AND UNDERSTANDINGLY CONSENT TO THE IMPOSITION OF A PRISON SENTENCE EVEN
IF HE IS UNWILLING OR UNABLE TO ADMIT HIS PARTICIPATION IN THE ACTS
CONSTITUTING THE CRIME. 

NOR CAN WE PERCEIVE ANY MATERIAL DIFFERENCE BETWEEN A PLEA THAT
REFUSES TO ADMIT COMMISSION OF THE CRIMINAL ACT AND A PLEA CONTAINING A
PROTESTATION OF INNOCENCE WHEN, AS IN THE INSTANT CASE, A DEFENDANT
INTELLIGENTLY CONCLUDES THAT HIS INTERESTS REQUIRE ENTRY OF A GUILTY
PLEA AND THE RECORD BEFORE THE JUDGE CONTAINS STRONG EVIDENCE OF ACTUAL
GUILTY.  HERE THE STATE HAD A STRONG CASE OF FIRST-DEGREE MURDER
AGAINST ALFORD.  WHETHER HE REALIZED OR DISBELIEVED HIS GUILT, HE
INSISTED ON HIS PLEA BECAUSE IN HIS VIEW HE HAD ABSOLUTELY NOTHING TO
GAIN BY A TRIAL AND MUCH TO GAIN BY PLEADING.  BECAUSE OF THE
OVERWHELMING EVIDENCE AGAINST HIM, A TRIAL WAS PRECISELY WHAT NEITHER
ALFORD NOR HIS ATTORNEY DESIRED.  CONFRONTED WITH THE CHOICE BETWEEN A
TRIAL FOR FIRST-DEGREE MURDER, ON THE ONE HAND, AND A PLEA OF GUILTY TO
SECOND-DEGREE MURDER, ON THE OTHER, ALFORD QUITE REASONABLY CHOSE THE
LATTER AND THEREBY LIMITED THE MAXIMUM PENALTY TO A 30-YEAR TERM.  WHEN
HIS PLEA IS VIEWEDIN LIGHT OF THE EVIDENCE AGAINST HIM, WHICH
SUBSTANTIALLY NEGATED HIS CLAIM OF INNOCENCE AND WHICH FURTHER PROVIDED
A MEANS BY WHICH THE JUDGE COULD TEST WHETHER THE PLEA WAS BEING
INTELLIGENTLY ENTERED, SEE MCCARTHY V. UNITED STATES, SUPRA, AT 466-467
(1969), /10/  ITS VALIDITY CANNOT BE SERIOUSLY QUESTIONED.  IN VIEW OF
THE STRONG FACTUAL BASIS FOR THE PLEA DEMONSTRATED BY THE STATE AND
ALFORD'S CLEARLY EXPRESSED DESIRE TO ENTER IT DESPITE HIS PROFESSED
BELIEF IN HIS INNOCENCE, WE HOLD THAT THE TRIAL JUDGE DID NOT COMMIT
CONSTITUTIONAL ERROR IN ACCEPTING IT.  /11/ 

RELYING ON UNITED STATES V. JACKSON, SUPRA, ALFORD NOW ARGUES IN
EFFECT THAT THE STATE SHOULD NOT HAVE ALLOWED HIM THIS CHOICE BUT
SHOULD HAVE INSISTED ON PROVING HIM GUILTY OF MURDER IN THE FIRST
DEGREE.  THE STATES IN THEIR WISDOM MAY TAKE THIS COURSE BY STATUTE OR
OTHERWISE AND MAY PROHIBIT THE PRACTICE OF ACCEPTING PLEAS TO LESSER
INCLUDED OFFENSES UNDER ANY CIRCUMSTANCES.  /12/  BUT THIS IS NOT THE
MANDATE OF THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS.  THE
PROHIBITIONS AGAINST INVOLUNTARY OR UNINTELLIGENT PLEAS SHOULD NOT BE
RELAXED, BUT NEITHER SHOULD AN EXERCISE IN ARID LOGIC RENDER THOSE
CONSTITUTIONAL GUARANTEES COUNTERPRODUCTIVE AND PUT IN JEOPARDY THE
VERY HUMAN VALUES THEY WERE MEANT TO PRESERVE. 

THE COURT OF APPEALS FOR THE FOURTH CIRCUIT WAS IN ERROR TO FIND
ALFORD'S PLEA OF GUILTY INVALID BECAUSE IT WAS MADE TO AVOID THE
POSSIBILITY OF THE DEATH PENALTY.  THAT COURT'S JUDGMENT DIRECTING THE
ISSUANCE OF THE WRIT OF HABEAS CORPUS IS VACATED AND THE CASE IS
REMANDED TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS INSISTENT WITH
THIS OPINION. 

           IT IS SO ORDERED. 

/1/  UNDER NORTH CAROLINA LAW, FIRST-DEGREE MURDER IS PUNISHED WITH
DEATH UNLESS THE JURY RECOMMENDS THAT THE PUNISHMENT SHALL BE LIFE
IMPRISONMENT: 

"A MURDER WHICH SHALL BE PERPETRATED BY MEANS OF POISON, LYING IN
WAIT, IMPRISONMENT, STARVING, TORTURE, OR BY ANY OTHER KIND OF WILLFUL,
DELIBERATE AND PREMEDIATATED KILLING, OR WHICH SHALL BE COMMITTED IN
THE PERPETRATION OR ATTEMPT TO PERPETRATE ANY ARSON, RAPE, ROBBERY,
BURGLARY OR OTHER FELONY, SHALL BE DEEMED TO BE MURDER IN THE FIRST
DEGREE AND SHALL BE PUNISHED WITH DEATH:  PROVIDED, IF AT THE TIME OF
RENDERING ITS VERDICT IN OPEN COURT, THE JURY SHALL SO RECOMMEND, THE
PUNISHMENT SHALL BE IMPRISONMENT FOR LIFE IN THE STATE'S PRISON, AND
THE COURT SHALL SO INSTRUCT THE JURY.  ALL OTHER KINDS OF MURDER SHALL
BE DEEMED MURDER IN THE SECOND DEGREE, AND SHALL BE PUNISHED WITH
IMPRISONMENT OF NOT LESS THAN TWO NOR MORE THAN THIRTY YEARS IN THE
STATE'S PRISON."  N.C. GEN. STAT. SEC. 14-17 (1969). 

AT THE TIME ALFORD PLEADED GUILTY, NORTH CAROLINA LAW PROVIDED THAT
IF A GUILTY PLEA TO A CHARGE OF FIRST-DEGREE MURDER WAS ACCEPTED BY THE
PROSECUTION AND THE COURT, THE PENALTY WOULD BE LIFE IMPRISONMENT
RATHER THAN DEATH.  THE PROVISION PERMITTING GUILTY PLEAS IN CAPITAL
CASES WAS REPEALED IN 1969.  SEE PARKER V. NORTH CAROLINA, 397 U.S.
790, 792-795 (1970).  THOUGH UNDER PRESENT NORTH CAROLINA LAW IT IS NOT
POSSIBLE FOR.ADEFENDANT TO PLEAD GUILTY TO A CAPITAL CHARGE, IT
SEEMINGLY REMAINS POSSIBLE FOR A PERSON CHARGED WITH A CAPITAL OFFENSE
TO PLEAD GUILTY TO A LESSER CHARGE. 

/2/  AFTER GIVING HIS VERSION OF THE EVENTS OF THE NIGHT OF THE
MURDER, ALFORD STATED: 

"I PLEADED GUILTY ON SECOND DEGREE MURDER BECAUSE THEY SAID THERE IS
TOO MUCH EVIDENCE, BUT I AIN'T SHOT NO MAN, BUT I TAKE THE FAULT FOR
THE OTHER MAN.  WE NEVER HAD AN ARGUMENT IN OUR LIFE AND I JUST PLEADED
GUILTY BECAUSE THEY SAID IF I DIDN'T THEY WOULD GAS ME FOR IT, AND THAT
IS ALL." 

IN RESPONSE TO QUESTIONS FROM HIS ATTORNEY, ALFORD AFFIRMED THAT HE
HAD CONSULTED SEVERAL TIMES WITH HIS ATTORNEY AND WITH MEMBERS OF HIS
FAMILY AND HAD BEEN INFORMED OF HIS RIGHTS IF HE CHOSE TO PLEAD NOT
GUILTY.  ALFORD THEN REAFFIRMED HIS DECISION TO PLEAD GUILTY TO SECOND
DEGREE MURDER: 

"Q (BY ALFORD'S ATTORNEY).  AND YOU AUTHORIZED ME TO TENDER A PLEA
OF GUILTY TO SECOND DEGREE MURDER BEFORE THE COURT? 

"A.  YES, SIR. 

"Q.  AND IN DOING THAT, THAT YOU HAVE AGAIN AFFIRMED YOUR DECISION
ON THAT POINT? 

"A.  WELL, IM STILL PLEADING THAT YOU ALL GOT ME TO PLEAD GUILTY.  I
PLEAD THE OTHER WAY, CIRCUMSTANTIAL EVIDENCE; THAT THE JURY WILL
PROSECUTE ME ON-- ON THE SECOND.  YOU TOLE ME TO PLEAD GUILTY, RIGHT. 
I DON'T-- I'M NOT GUILTY BUT I PLEAD GUILTY." 

/3/  AT THE STATE COURT HEARING ON PSOT-CONVICTION RELIEF, THE
TESTIMONY CONFIRMED THAT ALFORD HAD BEEN FULLY INFORMED BY HIS ATTORNEY
AS TO HIS RIGHTS ON A PLEA OF NOT GUILTY AND AS TO THE CONSEQUENCES OF
A PLEA OF GUILTY.  SINCE THE RECORD IN THIS CASE AFFIRMATIVELY
INDICATES THAT ALFORD WAS AWARE OF THE CONSEQUENCES OF HIS PLEA OF
GUILTY AND OF THE RIGHTS WAIVED BY THE PLEA, NO ISSUES OF SUBSTANCE
UNDER BOYKIN V. ALABAMA, 395 U.S. 238 (1969), WOULD BE PRESENTED EVEN
IF THAT CASE WAS HELD APPLICABLE TO THE EVENTS HERE IN QUESTION. 

/4/  BEFORE ALFORD WAS SENTENCED, THE TRIAL JUDGE ASKED ALFORD ABOUT
PRIOR CONVICTIONS.  ALFORD ANSWERED THAT, AMONG OTHER THINGS, HE HAD
SERVED SIX YEARS OF A TEN-YEAR SENTENCE FOR MURDER, HAD BEEN CONVICTED
NINE TIMES FOR ARMED ROBBERY, AND HAD BEEN CONVICTED FOR TRANSPORTING
STOLEN GOODS, FORGERY, AND CARRYING A CONCEALED WEAPON.  APP. 9-11. 

/5/  SEE N. 1, SUPRA. 

/6/  THUS IF ALFORD HAD ENTERED THE SAME PLEA IN THE SAME WAY IN
1969 AFTER THE STATUTE AUTHORIZING GUILTY PLEAS TO CAPITAL CHARGES HAD
BEEN REPEALED, SEE N. 1, SUPRA, THE RESULT REACHED BY THE COURT OF
APPEALS SHOULD HAVE BEEN THE SAME UNDER THAT COURT'S REASONING. 

/7/ A THIRD APPROACH HAS BEEN TO DECLINE TO RULE DEFINITIVELY THAT A
TRIAL JUDGE MUST EITHER ACCEPT OR REJECT AN OTHERWISE VALID PLEA
CONTAINING A PROTESTATION OF INNOCENCE, BUT TO LEAVE TAHT DECISION TO
HIS SOUND DISCRETION.  SEE MAXWELL V. UNITED STATES, 368 F.2D 735, 738
739 (CA9 1966). 

/8/  COURTS HAVE DEFINED THE PLEA OF NOLO CONTENDERE IN A VARIETY OF
DIFFERENT WAYS, DESCRIBING IT, ON THE ONE HAND, AS "IN EFFECT, A PLEA
OF GUILTY," UNITED STATES V. FOOD & GROCERY BUREAU,43 F.SUPP.  974, 979
(SD CAL. 1942), AFF'D, 139 F.2D 973 (CA 9 1943), AND ON THE OTHER, AS A
QUERY DIRECTED TO THE COURT TO DETERMINE THE DEFENDANT'S GUILT.  STATE
V. HOPKINS, 27 DEL. 306, 88 A. 473 (1913).  SEE GENERALLY LOTT V.
UNITED STATES, 367 U.S. 421, 426-427 (1961), SEC. 497.  AS A RESULT, IT
IS IMPOSSIBLE TO STATE PRECISELY WHAT A DEFENDANT DOES ADMIT WHEN HE
ENTERS A NOLO PLEA IN A WAY THAT WILL CONSISTENTLY FIT ALL THE CASES. 

HUDSON V. UNITED STATES, SUPRA, WAS ALSO AMBIGUOUS.  IN ONE PLACE,
THE COURT CALLED THE PLEA "AN ADMISSION OF GUILTY FOR THE PURPOSES OF
THE CASE," ID., AT 455, BUT IN ANOTHER, THE COURT QUOTED AN ENGLISH
AUTHORITY WHO HAD DEFINED THE PLEA AS ONE "WHERE A DEFENDANT, IN A CASE
NOT CAPITAL, DOTH NOT DIRECTLY OWN HIMSELF GUILTY . . . ."  ID., AT
453, QUOTING 2 W.HAWKINS, PLEAS OF THE CROWN 466 (8TH ED. 1824). 

THE PLEA MAY HAVE ORIGINATED IN THE EARLY MEDIEVAL PRACTICE BY WHICH
DEFENDANTS WISHING TO AVOID IMPRISONMENT WOULD SEEK TO MAKE AN END OF
THE MATTER (FINEM FACERE) BY OFFERING TO PAY A SUM OF MONEY TO THE
KING.  SEE 2 F. POLLOCK & F. MAITLAND, HISTORY OF ENGLISH LAW 517 (2D
ED. 1909).  AN EARLY 15TH-CENTURY CASE INDICATED THAT A DEFENDANT DID
NOT ADMIT HIS GUILTY WHEN HE SOUGHT SUCH A COMPROMISE, BUT MERELY "THAT
HE PUT HIMSELF ON THE GRACE OF OUR LORD, THE KING, AND ASKED THAT HE
MIGHT BE ALLOWED TO PAY A FINE (PETIT SE ADMITTIT PER FINEM)."  ANON.,
Y.B. HIL.  9 HEN.6, F. 59, PL. 8 (1431).  A 16TH-CENTRURY AUTHORITY
NOTED THAT A DEFENDANT WHO SO PLEADED "PUTTETH HYM SELFE IN GRATIAM
REGINAE WITHOT ANYE MORE, OR BY PROTESTATION THAT HEE IS NOT GUILTIE .
. . ," W. LAMBARD, EIRENARCHA 427 (1581), WHILE AN 18TH-CENTURY CASE
DISTINGUISHED BETWEEN A NOLO PLEA AND A JURY VERDICT OF GUILTY, NOTING
THAT IN THE FORMER THE DEFENDANT COULD INTRODUCE EVIDENCE OF INNOCENCE
IN MITIGATION OF PUNISHMENT, WHEREAS IN THE LATTER SUCH EVIDENCE WAS
PRECLUDED BY THE FINDING OF ACTUAL GUILT.  QUEEN V. TEMPLEMAN, 1 SALK. 
55, 91 ENG.REP.  54 (K.B. 1702). 

THROUGHOUT ITS HISTORY, THAT IS, THE PLEA OF NOLO CONTENDERE HAS
BEEN VIEWED NOT AS AN EXPRESS ADMISSION OF GUILT BUT AS A CONSENT BY
THE DEFENDANT THAT HE MAY BE PUNISHED AS IF HE WERE GUILTY AND A PRAYER
FOR LENIENCY.  FED. RULE CRIM. PROC. 11 PRESERVES THIS DISTINCTION IN
ITS REQUIREMENT THAT A COURT CANNOT ACCEPT A GUILTY PLEA "UNLESS IT IS
SATISFIED THAT THERE IS A FACTUAL BASIS FOR THE PLEA"; THERE IS NO
SIMILAR REQUIREMENT FOR PLEAS OF NOLO CONTENDERE, SINCE IT WAS THOUGHT
DESIRABLE TO PERMIT DEFENDANTS TO PLEAD NOLO WITHOUT MAKING ANY INQUIRY
INTO THEIR ACTUAL GUILTY.  SEE NOTES OF ADVISORY COMMITTEE TO RULE 11. 

/9/  BLUM V. UNITED STATES, 196 F. 269 (CA7 1912); SHAPIRO V. UNITED
STATES, 196 F. 268 (CA7 1912); TUCKER V. UNITED STATES, 196 F. 260 (CA7
1912). 

/10/  BECAUSE OF THE IMPORTANCE OF PROTECTING THE INNOCENT AND OF
INSURING THAT GUILTY PLEAS ARE A PRODUCT OF FREE AND INTELLIGENT
CHOICE, VARIOUS STATE AND FEDERAL COURT DECISIONS PROPERLY CAUTION THAT
PLEAS COUPLED WITH CLAIMS OF INNOCENCE SHOULD NOT BE ACCEPTED UNLESS
THERE IS A FACTUAL BASIS FOR THE PLEA, SEE, E.G., GRIFFIN V. UNITED
STATES, 132 U.S.APP.D.C. 108, 110, 405 F.2D 1378, 1380 119 (1967);
COMMONWEALTH V. COTTRELL, 433 PA. 177, 249 A.2D 294 (1969); AND UNTIL
THE JUDGE TAKING THE PLEA HAS INQUIRED INTO AND SOUGHT TO RESOLVE THE
CONFLICT BETWEEN THE WAIVER OF TRIAL AND THE CLAIM OF INNOCENCE.  SEE,
E.G., PEOPLE V. SERRANO, 15 N.Y.2D 304, 308-309, 206 N.E.2D 330, 332
(1965); STATE V.. BRANNER, 149 N.C. 559, 563, 63 S.E. 169, 171 (1908). 
SEE ALSO KREUTER V. UNITED STATES, 201 F.2D 33, 36 (CA10 1952). 

IN THE FEDERAL COURTS, FED. RULE CRIM. PROC. 11 EXPRESSLY PROVIDES
THAT A COURT "SHALL NOT ENTER A JUDGMENT UPON A PLEA OF GUILTY UNLESS
IT IS SATISFIED THAT THERE IS A FACTUAL BASIS FOR THE PLEA." 

/11/  OUR HOLDING DOES NOT MEAN THAT A TRIAL JUDGE MUST ACCEPT EVERY
CONSTITUTION CONSTITUTIONALLY VALID GUILTY PLEA MERELY BECAUSE A
DEFENDANT WISHES SO TO PLEAD.  A CRIMINAL DEFENDANT DOES NOT HAVE AN
ABSOLUTE RIGHT UNDER THE TO HAVE HIS GUILTY PLEA ACCEPTED BY THE COURT,
SEE LYNCH V. OVERHOLSER, 369 U.S.,AT 719 (BY IMPLICATION), ALTHOUGH THE
STATES MAY BY STATUTE OR OTHERWISE CONFER SUCH A RIGHT.  LIKEWISE, THE
STATES MAY BAR THEIR COURTS FROM ACCEPTING GUILTY PLEAS FROM ANY
DEFENDANTS WHO ASSERT THEIR INNOCENCE.  CF. FED. RULE CRIM. PROC. 11,
WHICH GIVES A TRIAL JUDGE DISCRETION TO "REFUSE TO ACCEPT A PLEA OF
GUILTY . . . ."  WE NEED NOT NOW DELINEATE THE SCOPE OF THAT
DISCRETION. 

/12/  NORTH CAROLINA NO LONGER PERMITS PLEAS OF GUILTY TO CAPITAL
CHARGES BUT IT APPEARS THAT PLEAS OF GUILTY MAY STILL BE OFFERED TO
LESSER INCLUDED OFFENSES.  SEE N. 1, SUPRA. 

MR. JUSTICE BLACK, WHILE ADHERING TO HIS BELIEF THAT UNITED STATES
V. JACKSON, 390 U.S. 570, WAS W ONGLY DECIDED, CONCURS IN THE JUDGMENT
AND IN SUBSTANTIALLY ALL OF THE OPINION IN THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

LAST TERM, THIS COURT HELD, OVER MY DISSENT, THAT A PLEA OF GUILTY
MAY VALIDLY BE INDUCED BY AN UNCONSTITUTIONAL THREAT TO SUBJECT THE
DEFENDANT TO THE RISK OF DEATH, SO LONG AS THE PLEA IS ENTERED IN OPEN
COURT AND THE DEFENDANT IS REPRESENTED BY COMPETENT COUNSEL WHO IS
AWARE OF THE THREAT, ALBEIT NOT OF ITS UNCONSTITUTIONALITY.  BRADY V.
UNITED STATES, 397 U.S. 742, 745-758 (1970); PARKER V. NORTH CAROLINA,
397 U.S. 790, 795 (1970).  TODAY THE COURT MAKES CLEAR THAT ITS
PREVIOUS HOLDING WAS INTENDED TO APPLY EVEN WHEN THE RECORD
DEMONSTRATES THAT THE ACTUAL EFFECT OF THE UNCONSTITUTIONAL THREAT WAS
TO INDUCE A GUILTY PLEA FROM A DEFENDANT WHO WAS UNWILLING TO ADMIT HIS
GUILT.     I ADHERE TO THE VIEW THAT, IN ANY GIVEN CASE, THE INFLUENCE
OF SUCH AN UNCONSTITUTIONAL THREAT "MUST NECESSARILY BE GIVEN WEIGHT IN
DETERMINING THE VOLUNTARINESS OF A PLEA."  PARKER V. NORTH CAROLINA,
397 U.S.,AT 805 (DISSENT).  AND, WITHOUT REACHING THE QUESTION WHETHER
DUE PROCESS PERMITS THE ENTRY OF JUDGMENT UPON A PLEA OF GUILTY
ACCOMPANIED BY A CONTEMPORANEOUS DENIAL OF ACTS CONSTITUTING THE CRIME,
/1/  I BELIEVE THAT AT THE VERY LEAST SUCH A DENIAL OF GUILT IS ALSO A
RELEVANT FACTOR IN DETERMINING WHETHER THE PLEA WAS VOLUNTARILY AND
INTELLIGENTLY MADE.  WITH THESE FACTORS IN MIND, IT IS SUFFICIENT IN MY
VIEW TO STATE THAT THE FACTS SET OUT IN THE MAJORITY OPINION
DEMONSTRATE THAT ALFORD WAS "SO GRIPPED BY FEAR OF THE DEATH PENALTY"
/2/  THAT HIS DECISION TO PLEAD GUILTY WAS NOT VOLUNTARY BUT WAS "THE
PRODUCT OF DURESS AS MUCH SO AS CHOICE REFLECTING PHYSICAL
CONSTRAINT."  HALEY V. OHIO, 332 U.S. 596, 606 (1948) (OPINION OF
FRANKFURTER, J.).  ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS. 

/1/  THE COURTS OF APPEALS HAVE EXPRESSED VARYING OPINIONS ON THIS
QUESTION.  COMPARE MCCOY V. UNITED STATES, 124 U.S.APP.D.C. 177, 179
180, 363 F.2D 306, 308-309 (1966); BRUCE V. UNITED STATES, 126
U.S.APP.D.C. 336, 342 N.17, 379 F.2D 113, 119 N. 17 (1967); GRIFFIN V.
UNITED STATES, 132 U.S.APP.D.C. 108, 109-110, 405 F.2D 1378, 1379-1380
(1968); MAXWELL V. UNITED STATES, 368 F.2D 735, 739 N. 3 (CA9 1966)
(COURT MAY ACCEPT GUILTY PLEA FROM DEFENDANT UNABLE OR UNWILLING TO
ADMIT GUILTY),WITH UNITED STATES EX REL. CROSBY V. BRIERLEY, 404 F.2D
790, 801-802 (CA3 1968); BAILEY V. MACDOUGALL,392 F.2D 155, 158 N. 7
(CA4 1968); HULSEY V. UNITED STATES, 369 F.2D 284, 287 (CA5 1966)
(GUILTY PLEA IS INFIRM IF ACCOMPANIED BY DENIAL OF ONE OR MORE ELEMENTS
OF OFFENSE). 

/2/  BRADY V. UNITED STATES, 397 U.S.,AT 750. 

JACOB L. SAFRON REARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE ROBERT MORGAN, ATTORNEY GENERAL OF NORTH CAROLINA, AND
ANDREW A. VANORE, JR., JOINED IN AND ADOPTED BY THE ATTORNEYS GENERAL
FOR THEIR RESPECTIVE STATES AS FOLLOWS: JOE PURCELL OF AEKANSAS, DAVID
P. BUCKSON OF DELAWARE, WILLIAM J. SCOTT OF ILLINOIS, JOHN B.
BRECKINRIDGE OF KENTUCKY, JOE T. PATTERSON OF MISSISSIPPI, AND ROBERT
L. WOODAHL OF MONTANA; BY THE GOVERNMENT OF THE VIRGIN ISLANDS; AND BY
THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION. 

DORIS R. BRAY, BY APPOINTMENT OF THE COURT, 394 U.S. 1010, REARGUED
THE CAUSE AND FILED BRIEFS FOR APPELLEE. 

JACK GREENBERG, JAMES M. NABRIT III, MICHAEL MELTSNER, NORMAN C.
AMAKER, CHARLES STEPHEN RALSTON, ANTHONY G. AMSTERDAM, J. LEVONNE
CHAMBERS, AND JAMES E. FERGUSON II FILED A BRIEF FOR ALBERT BOBBY
CHILDS ET AL. AS AMICI CURIAE. 
..END :



















FORNARIS V. RIDGE TOOL CO., 400 U.S. 41 


       FORNARIS V. RIDGE TOOL CO. ET AL.

        ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

    FIRST CIRCUIT

        NO. 541.  DECIDED NOVEMBER 23, 1970  /1/ 


1.  TITLE 28 U.S.C. 1254(2), WHICH PROVIDES FOR AN APPEAL TO THIS
COURT FROM A COURT OF APPEALS' JUDGMENT INVALIDATING A STATE STATUTE ON
CONSTITUTIONAL GROUNDS, DOES NOT APPLY TO AN APPEAL INVOLVING A PUERTO
RICO STATUTE. 

2.  THE COURT OF APPEALS SHOULD HAVE ABSTAINED FROM INVALIDATING ON
DUE PROCESS GROUNDS THE RETROSPECTIVE APPLICATION OF PUERTO RICO'S
DEALER'S CONTRACT LAW, SINCE THE UERTO RICO SUPREME COURT, WHICH HAS
NOT YET AUTHORITATIVELY CONSTRUED THE STATUTE, MIGHT BE ABLE TO DO SO
WITHOUT REACHING THE CONSTITUTIONAL ISSUE.  REETZ V. BOZANICH, 397 U.S.
82. 

APPEALS DISMISSED AND CERTIORARI GRANTED; 423 F.2D 563, REVERSED AND
REMANDED. 

PER CURIAM. 

IN 1964 BY ACT NO.75, THE LEGISLATURE OF PUERTO RICO ENACTED THE
DEALER'S CONTRACT LAW WHICH IN EFFECT PROVIDES THAT A PUERTO RICAN
DEALER'S CONTRACT WITH A MANUFACTURER, REGARDLESS OF ANY PROVISIONS FOR
TERMINATION, IS RENEWABLE INDEFINITELY AT THE OPTION OF THE LOCAL
DEALER UNLESS THE MANUFACTURER HAS "JUST CAUSE" TO TERMINATE.  SECTION
1(D) DEFINES "JUST CAUSE" AS "NONPERFORMANCE OF ANY OF THE ESSENTIAL
OBLIGATIONS OF THE DEALER'S CONTRACT, ON THE PART OF THE DEALER, OR ANY
ACTION OR OMISSION ON HIS PART THAT ADVERSELY AND SUBSTANTIALLY AFFECTS
THE INTERESTS OF THE PRINCIPAL OR GRANTOR IN PROMOTIONG THE MARKETING
OR DISTRIBUTION OF THE MERCHANDISE OR SERVICE."  IF A MANUFACTURER
TERMINATES FOR ANY OTHER REASON HE IS LIABLE FOR SUBSTANTIAL DAMAGES. 

THIS CAUSE WAS BROUGHT BY A DEALER IN A PUERTO RICAN COURT FOR
DAMAGES FOR BREACH OF HIS DISTRIBUTORSHIP CONTRACT AGAINST RIDGE TOOL
CO., AN APPELLEE.  IT WAS REMOVED TO THE FEDERAL DISTRICT COURT ON THE
BASIS OF DIVERSITY OF CITIZENSHIP.  THAT COURT DENIED THE MOTION TO
DISMISS WHICH CLAIMED THAT THE DEALER'S CONTRACT LAW UPON WHICH THE
COMPLAINT WAS BASED WAS UNCONSTITUTIONAL.  THE COURT OF APPEALS ALLOWED
AN INTERLOCUTORY APPEAL AND HELD THE DEALER'S CONTRACT LAW
UNCONSTITUTIONAL.  423 F.2D 563.  /1A/ 

THE RELATIONS OF THE FEDERAL COURTS TO PUERTO RICO HAVE OFTEN RAISED
DELICATE PROBLEMS.  IT IS A SPANISH-SPEAKING COMMONWEALTH WITH A SET OF
LAWS STILL IMPREGNATED WITH THE SPANISH TRADITION.  FEDERAL COURTS,
REVERSING PUERTO RICAN COURTS, WERE INCLINED TO CONSTRUE PUERTO RICAN
LAWS IN THE ANGLO-SAXON TRADITION WHICH OFTEN LEFT LITTLE ROOM FOR THE
OVERTONES OF SPANISH CULTURE.  OUT OF THAT EXPERIENCE GREW A
PRONOUNCEMENT BY THIS COURT THAT A PUERTO RICAN COURT SHOULD NOT BE
OVERRULED ON ITS CONSTRUCTION OF LOCAL LAW UNLESS IT COULD BE SAID TO
BE "INESCAPABLY WRONG."  SEE BONET V. TEXAS CO., 308 U.S. 463, 471. 

THE QUESTION PRESENTED HERE IS AKIN TO THAT QUESTION, FOR WE DEAL
WITH A RATHER VAGUE PUERTO RICAN LAW THAT THE SUPREME COURT OF PUERTO
RICO HAS NOT AUTHORITATIVELY CONSTRUED.  /2/  ONLY LAST TERM IN REETZ
V. BOZANICH, 397 U.S. 82, WE HELD THAT A THREE-JUDGE FEDERAL COURT
SHOULD NOT HAVE PROCEEDED TO STRIKE DOWN AN ALASKA LAW WHICH, IF
CONSTRUED BY THE ALASKA SUPREME COURT, MIGHT BE SO CONFINED AS NOT TO
HAVE ANY CONSTITUTIONAL INFIRMITY.  WE SAID, "A STATE COURT DECISION
HERE . . . COULD CONCEIVABLY AVOID ANY DECISION UNDER THE FOURTEENTH
AMENDMENT AND WOULD AVOID ANY POSSIBLE IRRITANT IN THE FEDERAL-STATE
RELATIONSHIP."  ID., AT 86-87. 

IN THIS CAUSE THE COURT OF APPEALS HELD THAT "JUST CAUSE" PLACED
SUBSTANTIAL LIABILITY ON A MANUFACTURER WHO HAD CONTRACTS THAT HE COULD
HAVE TERMINATED WITHOUT LIABILITY PRIOR TO THE NEW STATUTE.  THIS
RETROSPECTIVE IMPACT, THE COURT HELD, VIOLATED "THE DUE PROCESS CLAUSE
OF THE FEDERAL CONSTITUTION"-- WITHOUT SAYING WHETHER THE FIFTH OR THE
FOURTEENTH AMENDMENT WAS INVOLVED.  /3/  423 F.2D,AT 566-567. 

WHETHER THE SUPREME COURT OF PUERTO RICO WOULD GIVE THE SAME BROAD
SWEEP TO "JUST CAUSE" AS DID THE COURT OF APPEALS IS SOMETHING WE DO
NOT KNOW.  IT IS CONCEIVABLE THAT "JUST CAUSE" MIGHT BE JUDICIALLY
CONFINED TO A MORE NARROW AMBIT WHICH WOULD AVOID ALL CONSTITUTIONAL
QUESTIONS.  WE THEREFORE REVERSE AND DIRECT THE COURT OF APPEALS TO
REMAND THE CASES TO THE DISTRICT COURT WITH INSTRUCTIONS TO HOLD ITS
HAND UNTIL THE PUERTO RICAN SUPREME COURT HAS AUTHORITATIVELY RULED ON
THE LOCAL LAW QUESTION /4/  IN LIGHT OF THE FEDERAL CLAIMS.  SEE
ENGLAND V. MEDICAL EXAMINERS, 375 U.S. 411, 420. 

      IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 543, PUERTO RICO V. RIDGE TOOL CO. ET AL. 

/1A/  APPELLANTS INVOKED 28 U.S.C. 1254(2) AS THE AUTHORITY FOR
THESE APPEALS.  THAT PROVISION PROVIDES THAT A JUDGMENT IN THE COURT OF
APPEALS MAY BE BROUGHT HERE "(BY APPEAL BY A PARTY RELYING ON A STATE
STATUTE HELD BY A COURT OF APPEALS TO BE INVALID AS REPUGNANT TO THE
CONSTITUTION . . . ."  BUT A PUERTO RICAN STATUTE IS NOT A "STATE
STATUTE" WITHIN SEC. 1254(2).  IT IS TRUE THAT STATUTES ENACTED IN 1961
REQUIRE THAT THIS CORUT TREAT THE PUERTO RICAN COURTS AS THE EQUIVALENT
OF STATE COURTS FOR PURPOSES OF APPEAL AND CERTIORARI.  IT IS EXPRESSLY
PROVIDED IN 75 STAT. 417, 28 U.S.C. 1258, THAT "(FINAL JUDGMENTS OR
DECREES RENDERED BY THE SUPREME COURT OF THE COMMONWELATH OF PUERTO
RICO" MAY BE REVIEWED BY THIS COURT BY APPEAL, OR BY WRIT OF
CERTIORARI, IN THE SITUATIONS WHERE THAT ROUTE IS AVAILABLE FOR REVIEW
OF THE JUDGMENTS OF THE HIGHEST COURTS OF THE STATES.  SIGNIFICANTLY,
HOWEVER, NO PARALLEL PROVISION WAS ADDED TO SEC. 1254(2) TO PERMIT
APPEALS HERE FROM THE COURTS OF APPEALS BY A PARTY RELYING ON A PUERTO
RICAN STATUTE.  WHETHER THE OMISSION WAS BY ACCIDENT OR BY DESIGN, OUR
PRACTICE OF STRICT CONSTRUCTION OF STATUTES AUTHORIZING APPEALS
DICTATES THAT WE NOT GIVE AN EXPANSIVE INTERPRETATION TO THE WORD
"STATE."  WE SEE NO MERIT IN THE ARGUMENT THAT WE HAVE ALREADY DONE SO
IN OUR RULE 61 DEFINING "STATE COURT" TO INCLUDE THE PUERTO RICAN
SUPREME COURT AND "LAW ANS STATUTES OF A STATE" TO INCLUDE "THE LAW AND
STATUTES OF THE COMMONWEALTH OF PUERTO RICO."  THAT RULE WAS ADOPTED
ONLY TO IMPLEMENT 28 U.S.C. 1258 DEALING WITH REVIEW BY APPEAL OR
CERTIORARI OF FINAL JUDGMENTS OF THE SUPREME COURT OF PUERTO RICO.  WE
THEREFORE HOLD THAT THE APPEALS ARE IMPROPER AND THEY ARE DISMISSED,
AND ACCORDINGLY WE TREAT THE JURISDICTIONAL STATEMENTS AS PETITIONS FOR
WRITS OF CERTIORARI AND GRANT THEM ON THAT BASIS.  28 U.S.C. 2103; EL
PASO V. SIMMONS, 379 U.S. 497, 501-503. 

/2/  IN MCGREGOR-DONIGER, INC. V. SUPERIOR COURT, DECIDED MARCH 17,
1970, THE SUPREME COURT REFERRED BRIEFLY TO THE "JUST CAUSE" PROVISION
IN THE ACT: 

"IT IS APPARENT FROM THE PLEADINGS THAT THE CANCELLATION OF THE
CONTRACT IN THIS CASE 'DUE TO CHANGES WE ARE NOW MAKING IN OUR SALES
REPRESENTATION THROUGHOUT THE WORLD' IS CAUSE TO CANCEL IT, SINCE IN
THE CONTRACT IT WAS AGREED THAT IT COULD BE CANCELLED BY 30 DAYS'
WRITTEN NOTICE.  BUT IT IS ALSO CLEAR THAT SUCH CAUSE OR REASON IS NOT
THE 'JUST CAUSE' WHICH PERMITS THE CANCELLATION OF A DISTRIBUTORSHIP
CONTRACT IN ACCORDANCE WITH THE PROVISIONS OF LAW #75, SUPRA." 

/3/  ART. II, SEC. 7, OF THE CONSTITUTION OF PUERTO RICO PROVIDES
THAT "(NO PERSON SHALL BE DEPRIVED OF HIS LIBERTY OR PROPERTY WITHOUT
DUE PROCESS OF LAW," "LIFE" BEING EXCLUDED BECAUSE SEC. 7 ABOLISHES THE
DEATH PENALTY.  THAT CONSTITUTION WAS APPROVED BY CONGRESS.  SEE H.R.
REP. NO. 1832, 82D CONG., 2D SESS.; H.R. REP. NO. 2350, 82D CONG., 2D
ESSS.; S. REP. NO. 1720, 82D CONG., 2D SESS. 

/4/  UNDER PUERTO RICO'S LAWS ITS COURTS HAVE BROAD POWERS "TO
DECLARE RIGHTS, STATUS, AND OTHER LEGAL RELATIONS WHETHER OR NOT
FURTHERRELIEF IS OR COULD BE CLAIMED."  P.R. LAWS ANN., TIT. 32, C.
247, SEC. 2991.  THAT FORM OF REMEDY REACHES A PERSON "INTERESTED IN" A
CONTRACT OR WHOSE RIGHTS ARE "AFFECTED BY ANY STATUTE . . . CONTRACT OR
FRANCHISE."  ID., SEC. 2992. 
..END :

















ARNOLD TOURS V. CAMP, 400 U.S. 45 


       ARNOLD TOURS, INC., ET AL. V. CAMP ET AL.

 ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

          COURT OF APPEALS FOR THE FIRST CIRCUIT

NO. 602.  DECIDED NOVEMBER 23, 1970 


COURT OF APPEALS ERRED IN DISMISSING COMPLAINT FOR LACK OF STANDING
OF PETITIONER TRAVEL AGENTS SEEKING TO INVALIDATE RESPONDENT
COMPTROLLER OF THE CURRENCY'S RULING THAT NATIONAL BANKS MAY PROVIDE
TRAVEL SERVICES FOR THEIR CUSTOMERS, AS SEC. 4 OF THE BANK SERVICE
CORPORATION ACT "ARGUABLY BRINGS A COMPETITOR WITHIN THE ZONE OF
INTERESTS PROTECTED BY IT."  DATA PROCESSING SERVICE V. CAMP, 397 U.S.
150. 

CERTIORARI GRANTED; 428 F.2D 359, REVERSED AND REMANDED. 

PER CURIAM. 

PETITIONERS ARE 42 INDEPENDENT TRAVEL AGENTS DOING BUSINESS IN
MASSACHUSETTS.  THEY ASK FOR DECLARATORY AND INJUNCTIVE RELIEF AGAINST
THE COMPTROLLER OF THE CURRENCY AND THE SOUTH SHORE NATIONAL BANK. 
THEY SEEK TO INVALIDATE A RULING BY THE COMPTROLLER THAT, INCIDENTAL TO
THEIR BANKING SERVICES, NATIONAL BANKS MAY PROVIDE TRAVEL SERVICES FOR
THEIR CUSTOMERS.  /1/  PETITIONERS ALLEGE THAT AS A RESULT THEY HAVE
LOST SUBSTANTIAL BUSINESS AND PROFITS AND STAND TO LOSE EVEN GREATER
BUSINESS IN THE FUTURE.  THEY CONTEND THE COMPTROLLER EXCEEDED HIS
AUTHORITY WHEN HE AUTHORIZED NATIONAL BANKS TO PROVIDE TRAVEL
SERVICES. 

THE DISTRICT COURT DISMISSED THE COMPLAINT FOR LACK OF STANDING AND
THE COURT OF APPEALS AFFIRMED.  408 F.2D 1147 (CA1 1969).  FOLLOWING
OUR DECISIONS LAST TERM IN ASSOCIATION OF DATA PROCESSING SERVICE
ROGANIZATIONS, INC. V. CAMP, 397 U.S. 150, AND BARLOW V. COLLINS, 397
U.S. 159, WE VACTATED AND REMANDED THE CASE FOR RECONSIDERATION (397
U.S. 315) AND THE COURT OF APPEALS REAFFIRMED ITS PREVIOUS DECISION. 

HERE, AS IN DATA PROCESSING, WE ARE CONCERNED WITH SEC. 4 OF THE
BANK SERVICE CORPORATION ACT, 76 STAT. 1132, 12 U.S.C. 1864.  /2/  IN
DATA PROCESSING WE DID NOT RELY ON ANY LEGISLATIVE HISTORY SHOWING THAT
CONGRESS DESIRED TO PROTECT DATA PROCESSORS ALONE FROM COMPETITON.  /3/
MOREOVER, WE NOTED A GROWING TREND "TOWARD ENLARGEMENT OF THE CLASS OF
PEOPLE WHO MAY PROTEST ADMINISTRATIVE ACTION."  397 U.S.,AT 154.  WE
HELD THAT SEC. 4 "ARGUABLY BRINGS A COMPETITOR WITHIN THE ZONE OF
INTERESTS PROTECTED BY IT."  ID., AT 156.  NOTHING IN THE OPINION
LIMITED SEC. 4 TO PROTECTING ONLY COMPETITORS IN THE DATA-PROCESSING
FIELD.  WHEN NATIONAL BANKS BEGIN TO PROVIDE TRAVEL SERVICES FOR THEIR
CUSTOMERS, THEY COMPETE WITH TRAVEL AGENTS NO LESS THAN THEY COMPETE
WITH DATA PROCESSORS WHEN THEY PROVIDE DATA-PROCESSING SERVICES TO
THEIR CUSTOMERS.  /4/ 

ACCORDINGLY THE WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
REVERSED, AND THE CASE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

REVERSED AND REMANDED. 

/1/  PARAGRAPH 7475 OF THE COMPTROLLER'S MANUAL FOR NATIONAL BANKS
PROVIDES:  "INCIDENT TO THOSE POWERS VESTED IN THEM UNDER 12 U.S.C. 24,
NATIONAL BANKS MAY PROVIDE TRAVEL SERVICES FOR THEIR CUSTOMERS AND
RECEIVE COMPENSATIN THEREFOR.  SUCH SERVICES MAY INCLUDE THE SALE OF
TRIP INSURANCE AND THE RENTAL OF AUTOMOBILES, AS AGENT FOR A LOCAL
RENTAL SERVICE.  IN CONNECTION THEREWITH, NATIONAL BANKS MAY ADVERTISE,
DEVELOP, AND EXTEND SUCH TRAVEL SERVICES FOR THE PURPOSE OF ATTRACTING
CUSTOMERS TO THE BANK." 

/2/  "NO BANK SERVICE CORPORATION MAY ENGAGE IN ANY ACTIVITY OTHER
THAN THE PERFORMANCE OF BANK SERVICES FOR BANKS." 

/3/  THE ONLY LEGISLATIVE HISTORY OF THE BANK SERVICE CORPORATION
ACT MENTIONED IN THE OPINION WAS THAT SEC. 4 WAS A "'RESPONSE TO THE
FEARS EXPRESSED BY A FEW SENATORS, THAT WITHOUT SUCH A PROHIBITION, THE
BILL WOULD HAVE ENABLED "BANKS TO ENGAGE IN A NONBANKING ACTIVITY,"  S.
REP. NO. 2105 (87TH CONG., 2D SESS., 7-12) (SUPPLEMENTAL VIEWS OF
SENATORS PROXIMIRE, DOUGLAS, AND NEUBERGER), AND THUS CONSTITUTE "A
SERIOUS EXCEPTION TO THE ACCEPTED PUBLIC POLICY WHICH STRICTLY LIMITS
BANKS TO BANKING."  (USPPLEMENTAL VIEWS OF SENATORS MUSKIE AND
CLARK).'"  397 U.S.,AT 155. 

/4/  THE FINAL QUESTION UNDER DATA PROCESSING, WHETHER JUDICIAL
REVIEW OF THE ADMINISTRATIVE DECISION HAS BEEN PRECLUDED, WAS
SPECIFICALLY RESOLVED AGAINST THE COMPTROLLER IN THAT CASE.  397
U.S.,AT 157. 

THE CHIEF JUSTICE AND MR. JUSTICE HARLAN WOULD SET THE CASE FOR
ARGUMENT. 
..END :






LINES V. FREDERICK, 400 U.S. 18 


       LINES V. FREDERICK ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 412.  DECIDED NOVEMBER 9, 1970 


A BANKRUPT WAGE EARNER'S VACATION PAY, ACCRUED BUT UNPAID AT THE TIME
OF FILING OF HIS PETITION, DOES NOT PASS TO THE TRUSTEE IN BANKRUPTCY
AS "PROPERTY" UNDER SEC. 70A(5) OF THE BANKRUPTCY ACT. 

CERTIORARI GRANTED; 425 F.2D 215, AFFIRMED. 

PER CURIAM. 

THIS CASE PRESENTS THE QUESTION OF WHETHER A BANKRUPT WAGE EARNER'S
VACATION PAY, ACCRUED BUT UNPAID AT THE TIME OF THE FILING OF HIS
PETITION, PASSES TO THE TRUSTEE IN BANKRUPTCY AS "PROPERTY" UNDER SEC.
70A(5) OF THE BANKRUPTCY ACT, 30 STAT. 565, AS AMENDED, 11 U.S.C.
110(A)(5).  THE FACTS ARE NOT IN DISPUTE.  RESPONDENT FREDERICK,
EMPLOYED BY A LARGE MANUFACTURING COMPANY, HAD ACCRUED VACATION PAY OF
$137.28 AT THE TIME HE FILED HIS PETITION.  HE COULD COLLECT THIS SUM
EITHER DURING THE ANNUAL PERIOD WHEN HIS EMPLOYER SHUT DOWN THE PLANT
IN WHICH HE WORKED, OR ON FINAL TERMINATION OF HIS EMPLOYMENT. 
RESPONDENT HARRIS HAD ACCRUED VACATION PAY OF $144.14, WHICH HE COULD
DRAW EITHER ON TERMINATION OR UNDER A CONVENTIONAL VOLUNTARY VACATION
PLAN OF HIS EMPLOYER.  IN EACH CASE, THE REFEREE IN BANKRUPTCY MADE A
"TURNOVER ORDER" REQUIRING THE BANKRUPT TO PAY TO THE TRUSTEE ON
RECEIPT ALL OF HIS ACCRUED VACATION PAY, LESS ONE-HALF OF THAT PART
ACCRUED DURING THE 30 DAYS PRIOR TO THE FILING OF THE PETITION (THE
DEDUCTED SUM BEING EXEMPT UNDER CAL. CODE CIV. PROC. SEC. 690.11 (SUPP.
1970). 

THE DISTRICT COURT AFFIRMED THE REFEREE IN BOTH CASES, BUT THE COURT
OF APPEALS FOR THE NINTH CIRCUIT REVERSED, HOLDING THAT ACCRUED BUT
UNPAID VACATION PAY IS NOT "PROPERTY" UNDER THE STATUTE, AND THEREFORE
FINDING IT UNNECESSARY TO DECIDE WHETHER SUCH ACCRUED PAY MEETS THE
FURTHER STATUTORY REQUIREMENT OF BEING "TRANSFERABLE."  AS THE COURT OF
APPEALS NOTED, ITS DECISION WAS SQUARELY IN CONFLICT WITH THAT OF THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT IN KOLB V. BERLIN, 356 F.2D
269. 

IN SEGAL V. ROCHELLE, 383 U.S. 375, 379, WE SAID THAT "(THE MAIN
THRUST OF SEC.70A(5) IS TO SECURE FOR CREDITORS EVERYTHING OF VALUE THE
BANKRUPT MAY POSSESS IN ALIENABLE OR LEVIABLE FORM WHEN HE FILES HIS
PETITION.  TO THIS END THE TERM 'PROPERTY' HAS BEEN CONSTRUED MOST
GENEROUSLY AND AN INTEREST IS NOT OUTSIDE ITS REACH BECAUSE IT IS NOVEL
OR CONTINGENT OR BECAUSE ENJOYMENT MUST BE POSTPONED."  BUT WE POINTED
OUT THAT "'(IT IS IMPOSSIBLE TO GIVE ANY CATEGORICAL DEFINITION TO THE
WORD "PROPERTY," NOR CAN WE ATTACH TO IT IN CERTAIN RELATIONS THE
LIMITATIONS WHICH WOULD BE ATTACHED TO IT IN OTHERS.'" 

THE MOST IMPORTANT CONSIDERATION LIMITING THE BREADTH OF THE
DEFINITION OF "PROPERTY" LIES IN THE BASIC PURPOSE OF THE BANKRUPTCY
ACT TO GIVE THE DEBTOR A "NEW OPPORTUNITY IN LIFE AND A CLEAR FIELD FOR
FUTURE EFFORT, UNHAMPERED BY THE PRESSURE AND DISCOURAGEMENT OF
PREEXISTING DEBT.  THE VARIOUS PROVISIONS OF THE BANKRUPTCY ACT WERE
ADOPTED IN THE LIGHT OF THAT VIEW AND ARE TO BE CONSTRUED WHEN
REASONABLY POSSIBLE IN HARMONY WITH IT SO AS TO EFFECTUATE THE GENERAL
PURPOSE AND POLICY OF THE ACT."  LOCAL LOAN CO. V. HUNT, 292 U.S. 234,
244-245 (CITATIONS OMITTED). 

IN SEGAL V. ROCHELLE, SUPRA, THE QUESTION WAS WHETHER LOSS-CARRYBACK
TAX REFUNDS ARISING OUT OF BUSINESS LOSSES IMMEDIATELY PRIOR TO
BANKRUPTCY BUT NOT COLLECTED UNTIL THE END OF THE CALENDAR YEAR WER
PROPERTY SUBJECT TO A TURNOVER ORDER IN FAVOR OF THE TRUSTEE.  IN THAT
CASE, AS IN THIS ONE, THE PROBLEM OF CLASSIFICATION FOR PURPOSES OF THE
BANKRUPTCY ACT COULD NOT BE RESOLVED SIMPLY BY REFERENCE TO THE TIME
WHEN THE RIGHT TO THE PAYMENT "VESTED," OR TO DEFINITIONS OF PROPERTY
DRAWN FROM OTHER AREAS OF THE LAW.  THE COURT LOOKED TO THE PURPOSES OF
THE ACT AND CONCLUDED THAT THE TAX REFUND CLAIM WAS "SUFFICIENTLY
ROOTED IN THE PRE-BANKRUPTCY PAST AND SO LITTLE ENTANGLED WITH THE
BANKRUPT'S ABILITY TO MAKE AN UNENCUMBERED FRESH START THAT IT SHOULD
BE REGARDED AS 'PROPERTY' UNDER SEC.70A(5)."  382 U.S.,AT 380. 

APPLIED TO THE SET OF FACTS BEFORE US HERE, THE PRINCIPLES RELFECTED
IN THE EARLIER CASES COMPEL A DECISION FOR THE BANKRUPT.  IN SEGAL, A
BUSINESS HAD CEASED TO OPERATE AND THE TASK OF THE TRUSTEES IN
BANKRUPTCY WAS TO MARSHAL WHATEVER ASSETS WERE LEFT FOR DISTRIBUTION TO
THE CREDITORS.  THE TAX REFUND CLAIM, ARISING OLUT OF THE OPERATIONS OF
THE BUSINESS AND SPECIFICALLY OUT OF THE LOSSES THAT HAD PRECIPITATED
ITS FAILURE, WAS SUCH AN ASSET.  BY CONTRAST, THE RESPONDENTS HERE ARE
WAGE EARNERS WHOSE SOLE SOURCE OF INCOME, BEFORE AND AFTER BANKRUPTCY,
IS THEIR WEEKLY EARNINGS.  THE FUNCTION OF THEIR ACCRUED VACATION PAY
IS TO SUPPORT THE BASIC REQUIREMENTS OF LIFE FOR THEM AND THEIR
FAMILIES DURING BRIEF VACATION PERIODS OR IN THE EVENT OF LAYOFF. 
SINCE IT IS A PART OF THEIR WAGES, THE VACATION PAY IS "A SPECIALIZED
TYPE OF PROPERTY PRESENTING DISTINCT PROBLEMS IN OUR ECONOMIC SYSTEM." 
SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337, 340.  WHERE THE MINIMAL
REQUIREMENTS FOR THE ECONOMIC SURVIVAL OF THE DEBTOR ARE AT STAKE,
LEGISLATURES HAVE RECOGNIZED THAT PROTECTION THAT MIGHT BE UNNECESSARY
OR UNWISE FOR OTHER KINDS OF PROPERTY MAY BE REQUIRED.  SEE, E.G., FOR
THE CONSUMER CREDIT PROTECTION ACT, SEC. 310, 82 STAT.163, 15 U.S.C.
1671 (1964 ED., SUPP. V). 

THE WAGE-EARNING BANKRUPT WHO MUST TAKE A VACATION WITHOUT PAY OR
FORGO A VACATION ALTOGETHER CANNOT BE SAID TO HAVE ACHIEVED THE "NEW
OPPORTUNITY IN LIFE AND (THE) CLEAR FIELD FOR FUTURE EFFORT, UNHAMPERED
BY THE PRESSURE AND DISCOURAGEMENT OF PREESISTING DEBT," LOCAL LOAN CO.
V. HUNT, SUPRA, WHICH IT WAS THE PURPOSE OF THE STATUTE TO PROVIDE. 

THE MOTION OF RESPONDENT HARRIS TO PROCEED IN FORMA PAUPERIS IS
GRANTED.  THE MOTION OF RESPONDENT FREDERICK TO DISPENSE WITH PRINTING
HIS BRIEF IN OPPOSITION IS GRANTED.  THE PETITION FOR CERTIORARI IS
GRANTED AND THE JUDGMENT IS AFFIRMED. 

THE CHIEF JUSTICE IS OF THE OPINION THAT THE PETITION FOR WRIT OF
CERTIORARI SHOULD BE DENIED. 

MR. JUSTICE HARLAN, DISSENTING. 

IN MY VIEW THIS CASE IS ANOTHER INSTANCE IN WHICH THE PRESSURE OF AN
OVERCROWDED DOCKET HAS LED THE COURT TO DEAL SUMMARILY WITH AN ISSUE
WHICH, IF DESERVING OF OUR ATTENTION AT ALL, IS DESERVING OF FULL-DRESS
TREATMENT.  CF. UNITED STATES V. MARYLAND SAVINGS-SHARE INSURANCE
CORP., ANTE, P. 4; UNITED STATES V. CHICAGO, ANTE, P.8.  MOREOVER, THE
COURT DISPOSES OF THE CASE DESPITE THE OPAQUENESS OF THE RECORD AND THE
UNCERTAINTY WITH REGARD TO RELEVANT CALIFORNIA LAW. 

UNDER THE TERMS OF RESPONDENT FREDERICK'S EMPLOYMENT, HIS EMPLOYER
CREDITED HIM WITH ONE DAY'S VACATION PAY FOR EACH MONTH'S WORK.  /1/
FROM SEPTEMBER 15, THE DATE OF BANKRUPTCY, TO DECEMBER 23, THE
BEGINNING OF THE SHUTDOWN AND THE ENFORCED "VACATION," MR. FREDERICK
PRESUMABLY BECAME ENTITLED TO A LITTLE OVER THREE DAYS' PAY.  THE SAME
AMOUNT WOULD HAVE ACCRUED TO A PERSON STARTING WORK ON THE DATE OF
BANKRUPTCY WITH NO DEBTS OR ASSETS, THE PARADIGM OF "AN UNENCUMBERED
FRESH START."  INDEED, THE ORDER NOT ONLY PERMITTED RM. FREDERICK A
FRESH START; IT GAVE HIM A HEAD START, TO THE EXTENT OF HALF A DAY'S
PAY.  /2/  SEGAL V. ROCHELLE, 382 U.S. 375 (1966), AND LOCAL LOAN CO.
V. HUNT, 292 U.S. 234 (1934), THEREFORE TEND TO SUPPORT THE POSITION OF
THE TRUSTEE RATHER THAN "COMPEL A DECISION FOR THE BANKRUPT."  ANTE, P.
20.  HOWEVER, RESPONDENTS CAN MUSTER FORCEFUL ARGUMENTS IN THEIR
SUPPORT, EVEN ON THE ASSUMPTION THAT THE ACCRUED VACATION PAY WAS
SUBJECT TO THE CLAIMS OF CREDITORS-- A POINT OF CALIFORNIA LAW WHICH
THE COURT BELOW FOUND IT UNNECESSARY TO DECIDE. 

SINCE THE QUESTION TENDERED FOR REVIEW IS CLOSE AND HAS SPLIT THE
COURTS OF APPEALS, I WOULD SET THE CASE FOR ARGUMENT. 

/1/  WHILE NEITHER THE STIPULATED FACTS NOR THE OPINIONS BELOW
REVEAL THE RATE OF ACCRUAL OF VACATION PAY, I TAKE AS TRUE THE
UNCONTESTED REPRESENTATION IN MR. FREDERICK'S PETITION FOR REVIEW OF
THE REFEREE'S ORDER. 

/2/  THE CASE OF RESPONDENT HARRIS IS SIMILAR, BUT IT IS COMPLICATED
BY THE FACT THAT HE COULD HAVE CHOSEN TO FORGO HIS VACATION.  AS HE
OBSERVED IN HIS PETITION TO REVIEW THE TURNOVER ORDER, THE RECORD IS
SILENT ON WHETHER SUCH A CHOICE WOULD HAVE WIPED OUT HIS ACCRUED
VACATION TIME AND LEFT NOTHING FOR HIM TO TURN OVER. 
..END :









ODOM V. UNITED STATES, 400 U.S. 23 


       ODOM V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 300.  DECIDED NOVEMBER 9, 1970 


GREATER SEVERITY OF PETITIONER'S SECOND SENTENCE, AS COURT LEARNED
AFTER GRANTING CERTIORARI ON ISSUE ON RETROACTIVITY OF NORTH CAROLINA
V. PEARCE, 395 U.S. 711, WAS BASED ON PETITIONER'S CONDUCT
(SPECIFICALLY REFERRED TO AT RESENTENCING) AFTER THE FIRST SENTENCING;
WRIT IS THEREFORE DISMISSED AS IMPROVIDENTLY GRANTED. 

403 F.2D 45, CERTIORARI DISMISSED. 

PER CURIAM. 

A WRIT OF CERTIORARI WAS GRANTED IN THIS CASE ON JUNE 22, 1970, 399
U.S. 904, LIMITED TO THE QUESTION OF THE RETROACTIVITY OF OUR DECISION
IN NORTH CAROLINA V. PEARCE, 395 U.S. 711.  SINCE THE GRANTING OF THE
WRIT THERE HAS COME TO THE ATTENTION OF THE COURT AN ORDER OF JUDGE
MCRAE OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
FLORIDA, DATED JULY 1, 1970, DENYING A MOTION OF PETITIONER ODOM TO SET
ASIDE HIS SECOND SENTENCE AS ILLEGALLY IMPOSED UNDER PEARCE, SUPRA.
THE ORDER MAKES IT CLEAR THAT THE GREATER SEVERITY OF THE SECOND
SENTENCE WAS BASED ON CONDUCT ON THE PART OF THE PETITIONER OCCURRING
AFTER THE TIME OF THE ORIGINAL SENTENCING PROCEEDING, AND THAT THE NEW
INFORMATION WAS SPECIFICALLY REFERRED TO AT RESENTENCING.  SINCE IT IS
NOW APPARENT THAT THIS CASE DOES NOT PRESENT THE ISSUE OF THE
RETROACTIVITY OF NORTH CAROLINA V. PEARCE, SUPRA, THE WRIT IS DISMISSED
AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS. 

THE QUESTION IS WHETHER NORTH CAROLINA V. PEARCE, 395 U.S. 711,
SHOULD BE RETROACTIVE.  IN THAT CASE WE SAID THAT "THE FACTUAL DATA
UPON WHICH THE INCREASED SENTENCE IS BASED MUST BE MADE PART OF THE
RECORD, SO THAT THE CONSTITUTIONAL LEGITIMACY OF THE INCREASED SENTENCE
MAY BE FULLY REVIEWED ON APPEAL."  ID., AT 726.  THE INFORMATION NOW
REPORTED TO US BY THE DISTRICT COURT WAS NEVER MADE A PART OF THE
RECORD.  HENCE AN ISSUE OF RETROACTIVITY OF PEARCE IS PRESENT AND I
WOULD DECIDE THE CASE ON THE MERITS. 
..END :






THOMPSON V. UNITED STATES, 400 U.S. 17 


       THOMPSON V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 5272.  DECIDED OCTOBER 26, 1970 


CERTIORARI GRANTED; 421 F.2D 373, VACATED AND REMANDED TO THE
DISTRICT COURT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA FOR CONSIDERATION OF THE REQUEST CONTAINED IN THE
MEMORANDUM FILED IN THIS COURT BY THE SOLICITOR GENERAL. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, WOULD GRANT
CERTIORARI AND REVERSE THE DECISION BELOW FOR THE REASONS STATED IN HIS
DISSENTING OPINIONS IN ABBATE V. UNITED STATES, 359 U.S. 187, 201
(1959), AND BARTKUS V. ILLINOIS, 359 U.S. 121, 250 (1959). 
..END :




U.S. V. MARYLAND SAVINGS-SHARE INS. CORP., 400 U.S. 4 


       UNITED STATES V. MARYLAND SAVINGS-SHARE INSURANCE CORP.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MARYLAND

        NO. 160.  DECIDED OCTOBER 19, 1970 


LIMITS INCOME TAX EXEMPTION FOR NONPROFIT MUTUAL INSURERS TO THOSE
ORGANIZED BEFORE SEPTEMBER 1, 1957, IS NOT AN ARBITRARY CLASSIFICATION
VIOLATIVE OF DUE PROCESS REQUIREMENTS, CONGRESS HAVING HAD A RATIONAL
BASIS FOR CONCLUDING THAT AN EXTENTION OF THE CUTOFF DATE COULD
ADVERSELY AFFECT FEDERAL PROGRAMS. 

308 F.SUPP, 761 REVERSED. 

PER CURIAM. 

THIS IS A DIRECT APPEAL BY THE UNITED STATES FROM A DISTRICT COURT
JUDGMENT HOLDING UNCONSTITUTIONAL SEC. 501(C)(14)(B) OF THE INTERNAL
REVENUE CODE OF 1954, 26 U.S.C. 501(C)(14)(B) (1964 ED., SUPP. V), ON
THE GROUND THAT IT ARBITRARILY DISCRIMINATES BETWEEN MARYLAND SAVINGS
SHARE INSURANCE CORP. (MSSIC), THE APPELLEE, AND OTHER SIMILAR
NONPROFIT, MUTUAL INSURERS. 

MSSIC WAS ESTABLISHED BY THE MARYLAND LEGISLATURE WITH THE OBJECT OF
INSURING THE ACCOUNTS OF SHAREHOLDERS OF MEMBER SAVINGS AND LOAN
ASSOCIATIONS.  ALTHOUGH FIRST CHARTERED IN 1962, IT SEEKS THE BENEFIT
OF SEC. 501(C)(14)(B), WHICH EXEMPTS FROM TAX NONPROFIT CORPORATIONS
SUCH AS APPELLEE BUT ONLY IF ORGANIZED BEFORE SEPTEMBER 1, 1957.  /1/
MSSIC'S POSITION IS THAT SEPTEMBER 1, 1957, IS AN ARBITRARY AND
UNCONSTITUTIONAL CUTOFF DATE WHICH MUST BE EXCISED FROM THE SECTION,
LEAVING THE SECTION APPLICABLE TO ALL CORPORATIONS OF THE SAME NATURE
AS ITSELF REGARDLESS OF THE DATE OF THEIR CREATION.  WE DO NOT AGREE. 

PRIOR TO 1951, ALL SAVINGS AND LOAN ASSOCIATIONS WERE EXEMPT FROM
TAXATION OF INCOME DERIVED FROM THEIR OPERATIONS.  ALSO EXEMPT WERE
NONPROFIT CORPORATIONS THAT INSURED THE SAVINGS INSTITUTIONS.  IN 1951,
THE EXEMPTION FOR SAVINGS AND LOAN ASSOCIATIONS WAS DISCONTINUED, ON
FINDINGS THAT THE INDUSTRY HAD DEVELOPED TO A POINT COMPARABLE TO THAT
OF COMMERCIAL BANKS.  THE EXEMPTION FOR INSURERS, HOWEVER, WAS
CONTINUED, PROVIDED THEY WERE ALREADY IN EXISTENCE AS OF SEPTEMBER 1,
1951.  SEE REVENUE ACT OF 1951, SEC. 313(B), 65 STAT. 490; S. REP. NO.
781, 82D CONG., 1ST SESS., 22-29; 2 D.S. CODE CONG. & AD. NEWS 1969,
1991-1997 (1951).  AS OF THAT DATE THREE PRIVATE INSURERS FELL WITHIN
THE SCOPE OF THE SECTION-- TWO OF THEM IN MASSACHUSETTS AND ONE IN
CONNECTICUT.  THEN, IN 1956, A FOURTH SUCH CORPORATION WAS ORGANIZED IN
OHIO, AND FOUR YEARS LATER CONGRESS MOVED THE CUTOFF DATE FORWARD TO
SEPTEMBER 1, 1957.  ACT OF APRIL 22, 1960, 74 STAT. 54. 

IN 1963, A SIMILAR BILL, H.R. 3297, 88TH CONG., 1ST SESS., WHICH
WOULD HAVE MOVED THE CUTOFF DATE FORWARD TO JANUARY 1, 1963, FOR THE
BENEFIT OF MSSIC, PASSED THE HOUSE, BUT WAS NEVER REPORTED OUT BY THE
SENATE FINANCE COMMITTEE.  TESTIMONY BEFORE THE COMMITTEE INDICATED
THAT CONTINUED FORWARD MOVEMENT OF THE DATE MIGHT LEAD TO PROLIFERATION
OF STATE INSURERS THAT COULD HINDER THE OPERATIONS AND THREATEN THE
FINANCIAL STABILITY OF THE FEDERAL DEPOSIT INSURANCE CORPORATION AND
THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION.  SEE HEARING ON
H.R. 3297 BEFORE THE SENATE COMMITTEE ON FINANCE, 88TH CONG., 2D SESS,
9-10 (1964). 

AGAINST THIS BACKGROUND, THE DISTRICT COURT'S INVALIDATION OF SEC.
501(C)(14)(B) WAS ERROR.  THE FACT THAT CONGRESS ENACTS A STATUTE
CONTAINING A "GRANDFATHER CLAUSE," WHICH EXEMPTS FROM THE GENERAL
INCOME TAX CERTAIN CORPORATIONS ORGANIZED PRIOR TO A SPECIFIED DATE,
DOES NOT OF ITSELF INDICATE THAT CONGRESS HAS MADE AN ARBITRARY
CLASSIFICATION.  CF. STANLEY V. PUBLIC UTILITIES COMM'N, 295 U.S. 76
(1935); SPERRY & HUTCHINSON CO. V. RHODES, 220 U.S. 502 (1911); WATSON
V. MARYLAND, 218 U.S. 173 (1910); SAMPERE V. NEW ORLEANS, 166 LA. 776,
117 SO. 827 (1928), AFF'D PER CURIAM, 279 U.S. 812 (1929).  NORMALLY, A
LEGISLATIVE CLASSIFICATION WILL NOT BE SET ASIDE IF ANY STATE OF FACTS
RATIONALLY JUSTIFYING IT IS DEMONSTRATED TO OR PERCEIVED BY THE
COURTS.  MCDONALD V. BOARD ELECTION COMM'RS, 394 U.S. 802, 809 (1969);
MCGOWAN V. MARYLAND, 366 U.S. 420, 426 (1961); STANDARD OIL CO. V. CITY
OF MARYSVILLE, 279 U.S. 582, 586-587 (1929).  SEE ALSO WATSON V.
MARYLAND, SUPRA, AT 178.  HERE THE LEGISLATIVE HISTORY OF H.R. 3297
AFFIRMATIVELY DISCLOSES THAT CONGRESS HAD A RATIONAL BASIS FOR
DECLINING IN 1963 TO BROADEN THE EXEMPTION BY EXTENDING THE CUTOFF DATE
OF SEC. 501(C)(14)(B).  JUST AS A STATE MAY PROVIED THAT AFTER A
SPECIFIED DATE NEWLY ESTABLISHED COMMON CARRIERS MUST OBTAIN STATE
APPROVAL BEFORE ENTERING INTO BUSINESS SO AS TO PREVENT PROLIFERATION
OF SUCH CARRIERS AND EXCESSIVE USE OF THE STATE'S HIGHWAYS, SEE STANLEY
V. PUBLIC UTILITIES COMM'N, SUPRA, SIMILARLY CONGRESS DOES NOT EXCEED
ITS POWER TO TAX NOR DOES IT VIOLATE THE FIFTH AMENDMENT WHEN IT
REFUSES TO EXEMPT FROM TAX NEWLY FORMED CORPORATIONS, THE
MULTIPLICATION OF WHICH MIGHT BURDEN OTHERWISE VALID FEDERAL PROGRAMS. 
/2/ 

HAVING NOTED PROBABLE JURISDICTION BY ORDER OF OCTOBER 12, 1970, WE
NOW REVERSE THE JUDGMENT OF THE DISTRICT COURT. 

              SO ORDERED. 

/1/  INTERNAL REVENUE CODE SEC. 501(C)(14)(B), 26 U.S.C.
501(C)(14)(B) (1964 ED., SUPP. V), PROVIDES: 

"(B) CORPORATIONS OR ASSOCIATIONS WITHOUT CAPITAL STOCK ORGANIZED
BEFORE SEPTEMBER 1, 1957, AND OPERATED FOR MUTUAL PURPOSES AND WITHOUT
PROFIT FOR THE PURPOSE OF PROVIDING RESERVE FUNDS FOR, AND INSURANCE OF
SHARES OR DEPOSITS IN-- 

"(I) DOMESTIC BUILDING AND LOAN ASSOCIATIONS, 

"(II) COOPERATIVE BANKS WITHOUT CAPITAL STOCK ORGANIZED AND OPERATED
FOR MUTUAL PURPOSES AND WITHOUT PROFIT, OR 

"(III) MUTUAL SAVINGS BANKS NOT HAVING CAPITAL STOCK REPRESENTED BY
SHARES." 

/2/  THE DISTRICT COURT'S RELIANCE ON MAYFLOWER FARMS, INC. V. TEN
EYCK 297 U.S. 266 (1936), WAS MISPLACED, SINCE, ACCORDING TO THE COURT
IN THAT CASE, THE LEGISLATIVE RECORD CONTAINED NO AFFIRMATIVE SHOWING
OF A VALID LEGISLATIVE PURPOSE.  WE THUS NEED NOT PASS UPON THE
CONTINUING VALIDITY OF MAYFLOWER'S HOLDING.  WE ALSO FIND UNPERSUASIVE
MSSIC'S REMAINING ARGUMENT THAT IT IS AN INSTRUMENTALITY OF THE STATE
AND HENCE ENTITLED TO EXEMPTION FROM FEDERAL TAXATION UNDER THE
DOCTRINE OF INTERGOVERNMENTAL IMMUNITY AND UNDER SEC. 115(A)(1) OF THE
CODE, 26 U.S.C. 115(A)(1).  THE DISTRICT COURT PROPERLY REJECTED THIS
ARGUMENT. 

MR. JUSTICE HARLAN, CONSIDERING THAT THE ISSUES IN THIS CASE ARE
DESERVING OF PLENARY CONSIDERATION, WOULD SET THE CASE FOR ARGUMENT. 
..END :














UNITED STATES V. CITY OF CHICAGO, 400 U.S. 8 


       UNITED STATES ET AL. V. CITY OF CHICAGO ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS

        NO. 386.  DECIDED OCTOBER 19, 1970  /1/ 


RAILROAD SEEKING TO DISCONTINUE ITS SEGMENT OF A THROUGH PASSENGER
TRAIN THAT IS OPERATED IN CONJUNCTION WITH ANOTHER RAILROAD TO GIVE
NOTICE OF THE PROPOSED DISCONTINUANCE IN STATES SERVED ONLY BY THE
CONNECTING LINE. 

NOS. 386, 387, 396, AND 410, 312 F.SUPP.  442, REVERSED AND
REMANDED. 

PER CURIAM. 

THESE CASES ARE A SEQUEL TO OUR DECISION IN CITY OF CHICAGO V.
UNITED STATES, 396 U.S. 162, LAST TERM.  THE CHICAGO & EASTERN ILLINOIS
RAILROAD (C & E I) FILED A NOTICE UNDER SEC. 13A(1) OF THE INTERSTATE
COMMERCE ACT, 72 STAT. 571, 49 U.S.C.13A(1), PROPOSING TO DISCONTINUE A
PAIR OF TRAINS KNOWN AS THE "GEORGIAN," OPERATED BY IT BETWEEN CHICAGO,
ILLINOIS, AND EVANSVILLE, INDIANA, AND OPERATED IN CONJUNCTION WITH
TRAINS OF THE LOUISVILLE & NASHVILLE RAILROAD (L&N) BETWEEN EVANSVILLE,
INDIANA, AND ATLANTA, GEORGIA, CROSSING KENTUCKY AND TENNESSEE EN
ROUTE.  PART OF THIS LITIGATION GROWS OUT OF THE ICC'S APPROVAL OF THE
C&EI'S DISCONTINUANCE OF THE CHICAGO-EVANSVILLE SEGMENT OF THE
"GEORGIAN," EVIDENCED BY ITS TERMINATION OF ITS INVESTIGATION. 

THE L&N ALSO OPERATES THE "HUMMINGBIRD" BETWEEN CINCINNATI, OHIO,
AND NEW ORLEANS, LOUISIANA.  THE "HUMMINGBIRD" CONNECTS WITH THE
"GEORGIA" AT NASHVILLE, TENNESSEE, WHERE COACHES AND SLEEPERS ARE
TRANSFERRED BETWEEN THE TWO TRAINS.  FOLLOWING THE ICC'S APPROVAL OF
C&EI'S DISCONTINUANCE, THE L&N SERVED NOTICE OF DISCONTINUANCE OF THE
"HUMMINGBIRD"  /1A) WHICH THE ICC ALSO APPROVED. 

IN CITY OF CHICAGO V. UNITED STATES, SUPRA, WE HELD THAT ICC
DECISIONS TO DISCONTINUE SUCH AN INVESTIGATION WERE REVIEWABLE AND
REMANDED THE CASES BACK TO THE DISTRICT COURT.  THAT COURT THEN ORDERED
CONSOLIDATION AND REMANDED BACK TO THE ICC FOR FURTHER HEARINGS,
HOLDING THAT THE NOTICE SERVED BY THE C&EI ON THE GOVERNORS OF ILLINOIS
AND INDIANA AND AT EVERY STATION ALONG THE CHICAGO-EVANSVILLE RUN WAS
INADEQUATE BECAUSE THE PEOPLE OF KENTUCKY, TENNESSEE, AND GEORGIA, AND
THE GOVERNORS OF THOSE STATES WERE NOT NOTIFIED.  THE "HUMMINGBIRD"
DISCONTINUANCE WAS ALSO REMANDED TO THE ICC BECAUSE OF ITS CLOSE
RELATIONSHIP WITH THE "GEORGIAN."  THESE APPEALS FOLLOWED. 

WE NOTE JURISDIICTION AND REVERSE.  SECTION 13A(1) PROVIDES: 

     "A CARRIER OR CARRIERS SUBJECT TO THIS PART, IF THEIR RIGHTS

  WITH RESPECT TO THE DISCONTINUANCE OR CHANGE . . . OF THE

  OPERATION OR SERVICE OF ANY TRAIN . . . ARE SUBJECT TO ANY

  PROVISION OF THE CONSTITUTION OR STATUTES OF ANY STATE . . .

  SHALL MAIL TO THE GOVERNOR OF EACH STATE IN WHICH SUCH TRAIN . .

  . OPERATED, AND POST IN EVERY STATION, DEPOT OR OTHER FACILITY

  SERVED THEREBY, NOTICE . . . OF ANY SUCH PROPOSED DISCONTINUANCE

OR CHANGE." 

THIS SECTION, AS WE READ IT, REQUIRED C&EI TO GIVE NOTICE IN ILLINOIS
AND INDIANA, THE ONLY STATES IN WHICH THE LINE NOW IN CONTROVERSY HAS
OPERATED.  NO PROVISION IS MADE IN SEC. 13A(1) FOR NOTICE TO STATES
SERVED BY CONNECTING RAILROADS WHICH MIGHT BE AFFECTED BY A
DISCONTINUANCE. 

THE DISSENT FINDS AMBIGUITY IN THE PHRASE "SUCH TRAIN" IN SEC.
13A(1).  IT IS ARGUED THAT TWO INTERPRETATIONS OF "SUCH TRAIN" ARE
POSSIBLE:  EITHER THE TRAIN OF THE C&EI BETWEEN CHICAGO AND EVANSVILLE
OR THE "GEORGIAN" BETWEEN CHICAGO AND ATLANTA.  BY ALLOWING
DISCONTINUANCE UNDER SEC. 13A(1), HOWEVER, THE ICC MUSTH HAVE
INTERPRETED "SUCH TRAIN" TO REFER TO A TRAIN OPERATED BY ONE RAILROAD
ONLY; AND IT WAS ONLY THE CHICAGO-EVANSVILLE DISCONTINUANCE THAT WAS
BEFORE IT AT THE TIME.  THE COMMISSION RULED THAT: "COPIES OF THE
NOTICES WERE DULY SERVED AND POSTED IN THE MANNER REQUIRED BY SECTION
13A(1) AND OUR RULES AND REGULATIONS THEREUNDER."  /2/  331 I.C.C. 447,
448.  WE DEFER ON THIS ISSUE TO THE DEFINITION OF "TRAIN" GIVEN BY THE
ADMINISTRATIVE AGENCY WHICH HAS OVERSIGHT OF THE PROBLEM.  SEE, E.G.,
UDALL V. TALLMAN, 380 U.S. 1, 16-17; BOWLES V. SEMINOLE ROCK CO., 325
U.S. 410, 417-418. 

IT IS TRUE THAT THE C&EI AND THE L&N FUNCTIONED IN CLOSE HARMONY. 
DISCONTINUANCE HARMONY.  DISCONTINUANCE OF SERVICE ON ONE LINE MIGHT
HAVE A SUBSTANTIAL EFFECT ON THE OTHER.  BUT THIS RELATIONSHIP IS NOT
UNIQUE IN RAILROADING.  CONGRESS IS NOT UNAWARE OF THE MUTUAL
INTERDEPENDENCE OF RAILROADS.  IT DESIGNED A FEDERAL REGULATORY SYSTEM
THAT DISPLACED A STATE REGULATORY SYSTEM WHEN THE STATE SYSTEM COULD
DEFEAT A CARRIER'S ATTEMPT TO DISCONTINUE A TRAIN.  HENCE WE THINK IT
DISTORTS SEC. 13A(1) TO TREAT IT SO AS TO REQUIRE THE GIVING OF NOTICE
TO STATES WHICH HAD NO REGULATORY POWER OVER THE CARRIER.  /3/ 

ACCORDINGLY, THE DECISIONS IN NOS. 386 AND 410 ARE REVERSED.  SINCE
NOS. 387 AND 396 WERE REMANDED TO THE COMMISSION SOLELY BECAUSE OF
THEIR RELATION TO NOS. 386 AND 410, THOSE DECISIONS ARE ALSO REVERSED. 
THE CAUSES ARE REMANDED TO THE DISTRICT COURT FOR REVIEW OF ANY
QUESTIONS ON THE MERITS WHICH MAY REMAIN UNRESOLVED. 

              IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 387, UNITED STATES ET AL. V. TENNESSEE PUBLIC
SERVICE COMMISSION ET AL., NO. 396, LOUISVILLE & NASHVILLE RAILROAD CO.
V. TENNESSEE PUBLIC SERVICE COMMISSION ET AL., AND NO. 410, CHICAGO &
EASTERN ILLINOIS RAILROAD ET AL. V. CITY OF CHICAGO ET AL., ALSO ON
APPEAL FROM THE SAME COURT. 

/1A/  NO ISSUE AS TO THE ADEQUACY OF THE NOTICE GIVEN IN THE L&N
PROCEEDING IS RAISED HERE. 

/2/  THE REGULATION AT THE TIME PROVIDED FOR "(A) CERTIFICATE
(STATING) THAT A COPY OF THE NOTICE * * * HAS BEEN MAILED TO THE
GOVERNOR AND RAILROAD REGULATORY BODY OF EACH STATE IN WHICH THE
SUBJECT TRAIN OR FERRY IS OPERATED."  (49 CFR 143.5(J), FORMERLY SEC.
43.5(J) (SEE 32 FED.REG.  5606)). 

/3/  UNTIL 1958 RAILROAD DISCONTINUANCES REQUIRED APPROVAL OF THE
APPROPRIATE REGULATORY AGENCY IN EACH OF THE STATES IN WHICH THE LINE
OPERATED.  CONGRESS KNEW OF THE FINANCIAL DIFFICULTIES OF THE RAILROADS
AND CONCLUDED THAT THE PROBLEM OF DISCONTINUANCE HAD TO BE REMOVED FROM
ITS PAROCHIAL SETTING WHERE STATE AGENCIES TOO OFTEN REQUIRED THE
"MAINTENANCE OF UNECONOMIC AND UNNECESSARY SERVICES AND FACILITIES." 
S.REP.NO. 1647, 85TH CONG., 2D SESS., 22.  THEREFORE, CONGRESS VESTED
POWER OVER DISCONTINUANCES IN A BODY AWARE OF THE NATIONAL
TRANSPORTATION PROBLEMS AND NEEDS.  SEE GENERALLY CITY OF CHICAGO V.
UNITED STATES, 396 U.S. 162 (1969), AND SOUTHERN R. CO. V. NORTH
CAROLINA, 376 U.S. 93 (1964). 

THE PROBLEM OF DISCONTINUANCE OF SERVICES AS PUT TO THE CONGRESS BY
THE ASSOCIATION OF AMERICAN RAILROADS WAS DESCRIBED AS FOLLOWS:  "(SUCH
MATTERS ARE SUBJECT TO APPROVAL OF STATE REGULATORY COMMISSIONS AND
AUTHORITY FOR SUCH DISCONTINUANCES OR ABANDONMENTS MUST BE OBTAINED
WITHIN THE SCOPE OF STATUTES OR PROCEDURES UNDER WHICH THOSE STATE
COMMISSIONS OPERATE."  PROBLEMS OF THE RAO RAILROADS, HEARINGS BEFORE
THE SUBCOMMITTEE ON SURFACE TRANSPORTATION OF THE SENATE COMMITTEE ON
INTERSTANTE AND FOREIGN COMMERCE, 85TH CONG., 2D SESS., PT. 1, P. 25
(JAN. 13, 1958). 

THE LEGISLATION WAS RESPONSIVE TO THAT NEED AND MAY NOT BE EASILY
CONSTRUED TO DO MORE THAN TRACK THE JURISDICTION OF A STATE OVER THE
CARRIER IN QUESTION. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

I THINK THESE CASES DO NOT LEND THEMSELVES TO SUMMARY DISPOSITION. 

THE CHICAGO & EASTERN ILLINOIS RAILROAD CO. AND THE LOUISVILLE &
NASHVILLE RAILROAD CO. JOINTLY OPERATED A TRAIN KNOWN AS THE "GEORGIAN"
WHICH PROVIDED PASSENGER SERVICE BETWEEN CHICAGO, ILLINOIS, AND
ATLANTA, GEORGIA.  AT EVANSVILLE, INDIANA, BETWEEN THE TWO TERMINAL
POINTS ON THE "GEORGIAN" RUN, THE RAILROAD COMPANIES SWITCHED ENGINES
AND TRAIN CREWS; PASSENGERS, HOWEVER, COULD REMAIN IN THE RAILROAD CARS
AND CONTINUE THROUGH TO THE END OF THE RUN.  THE CHICAGO & EASTERN
ILLINOIS SOUGHT ICC APPROVAL OF ITS DISCONTINUANCE OF THE CHICAGO
EVANSVILLE PORTION OF THE RUN; NOTICE OF THE PROPOSED DISCONTINUANCE
PROCEEDINGS WAS NOT SERVED ON THE GOVERNORS AND RESIDENTS OF THE STATES
SERVED BY THE EVANSVILLE-ATLANTA PORTION OF THE "GEORGIAN" RUN.  AFTER
OUR REMAND IN CITY OF CHICAGO V. UNITED STATES, 396 U.S. 162 (1969),
THE DISTRICT COURT HELD THAT NOTICE OF THE ICC DISCONTINUANCE
PROCEEDINGS SHOULD HAVE BEEN GIVEN TO THE GOVERNORS AND RESIDENTS OF
ALL THE STATES SERVED BY THE "GEORGIAN" RUN.  THE COURT, IN NOS. 386
AND 410, NOW SUMMARILY REVERSES THAT DECISION, HOLDING THAT SEC. 13A(1)
OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 13A(1), REQUIRES THAT A
CARRIER SEEKING TO DISCONTINUE PASSENGER SERVICE GIVE NOTICE ONLY IN
THOSE STATES HAVING REGULATORY AUTHORITY OVER THE CARRIER.  /1/ 

THE ISSUE, IN MY OPINION, IS NOT ONE JUSTIFYING SUMMARY RESOLUTION,
AS AN EXAMINATION OF THE COURT'S OPINION INDICATES.  THE COURT RELIES
IN THE FIRST INSTANCE ON THE ABSENCE OF AN EXPLICIT PROVISION IN SEC.
13A(1) OF THE ACT FOR NOTICE TO STATES SERVED BY "CONNECTING
RAILROADS."  HOWEVER, THE STATUTORY PROVISION IN QUESTION IS MANIFESTLY
HIGHLY AMBIGUOUS WITH REGARD TO THE SCOPE OF THE NOTICE OBLIGATION IN
SITUATIONS WHERE TWO CARRIERS, THOUGH SUBJECT TO DIFFERENT STATE
REGULATORY AUTHORITIES, OFFER THE CONSUMER STANDPOINT, IS
INDISTINGUISHABLE FROM PASSENGER SERVICE OFFERED BY A SINGLE CARRIER. 

     "A CARRIER OR CARRIERS . . . IF THEIR RIGHTS WITH RESPECT TO

  THE DISCONTINUANCE OR CHANGE, IN WHOLE OR IN PART, OF THE

  OPERATION OR SERVICE OF ANY TRAIN . . . OPERATING FROM A POINT IN

  ONE STATE TO A POINT IN ANY OTHER STATE . . . ARE SUBJECT TO ANY

  PROVISION OF THE CONSTITUTION OR STATUTES OF ANY STATE OR ANY

REGULATION OR ORDER OF (OR ARE THE SUBJECT OF ANY PRCEEDING

  PENDING BEFORE) ANY COURT OR AN ADMINISTRATIVE OR REGULATORY

  AGENCY OF ANY STATE, MAY, BUT SHALL NOT BE REQUIRED TO, FILE WITH

  THE COMMISSION, AND UPON SUCH FILING SHALL MAIL TO THE GOVERNOR

  OF EACH STATE IN WHICH SUCH TRAIN . . . IS OPERATED, AND POST IN

  EVERY STATION, DEPOT OR OTHER FACILITY SERVED THEREBY, NOTICE AT

  LEAST THIRTY DAYS IN ADVANCE OF ANY SUCH PROPOSED DISCONTINUANCE

  OR CHANGE . . . ." 

APPELLANTS IN NOS. 386 AND 410 ARGUE THAT SINCE SEC. 13A(1) ACCORDS
CARRIERS A RIGHT TO COMMENCE DISCONTINUANCE PROCEEDINGS BEFORE THE ICC
IF THEIR RIGHTS WITH RESPECT TO THE OPERATION OF TRAIN SERVICE ARE
SUBJECT TO ANY STATE REGULATORY AUTHORITY, THE SCOPE OF THE NOTICE
REQUIREMENT SHOULD BE LIMITED BY THE REACH OF THE STATE REGULATORY
POWER GIVING RISE, IN THE FIRST INSTANCE, TO THE CARRIER'S RIGHT TO GO
BEFORE THE ICC.  APPELLEES IN NOS. 386 AND 410, FOR THEIR PART, CONTEND
THAT THE NOTICE REQUIREMENT IS GEARED TO THE AREAS THROUGH WHICH "SUCH
TRAIN" IS OPERATED, NOT MERELY THE AREAS REACHED BY A STATE'S
REGULATORY POWER OVER THE CARRIER.  FOR MY PART, I FIND THE LANGUAGE
AND STRUCTURE OF THE STATUTORY PROVISION SINGULARLY OPAQUE; AND I AM
NOT AIDED IN MY CHOICE BETWEEN THESE COMPETING CONSTRUCTIONS BY THE
COURT'S OBSERVATION THAT SEC. 13A(1) MAKES NO PROVISION FOR NOTICE IN
STATES SERVED BY "CONNECTING RAILROADS." 

IN VIEW OF THE STRUCTUR A AND LINGUISTIC AMBIGUITY OF THE STATUTORY
PROVISION, THE COURT'S RELIANCE ON THE ABSENCE OF AN EXPLICIT REFERENCE
TO CARRIER ARRANGEMENTS OF THIS SORT WOULD CARRY WEIGHT ONLY IF THE
LEGISLATIVE POLICY UNDERLYING SEC. 13A(1) OF THE ACT SOLIDLY SUPPORTED
THE RESULT REACHED TODAY.  LACKING THAT, THE DESCRIPTION OF
CONGRESSIONAL POLICY IN N. 3 OF THE COURT'S OPINION, ANTE, AT 11,
HARDLY WARRANTS THE COURT'S INFERENCE IN THE TEXT OF ITS OPINION THAT
THE STATUTORY PURPOSE UNDERPINNING SEC. 13A(1) IS SERVED BY A
LIMITATION OF THE NOTICE REQUIREMENTS ACCORDING TO THE REACH OF THE
STATE'S REGULATORY POWER OVER THE CARRIER FILIGN WITH THE ICC.  /2/
INDEED, THE CONCERN WITH STATE REGULATORY PAROCHIALISM, AND THE
RESULTING BURDEN ON INTERSTATE COMMERCE CAUSED BY ECONOMICALLY WASTEFUL
PASSENGER SERVICE ARRANGEMENTS, ARGUE WITH AT LEAST EQUAL R RCE FOR AN
INTERPRETATION OF THE NOTICE REQUIREMENTS OF SEC. 13A(1) AS REACHING
BEYOND THE RELATIVELY NARROW PAROCHIAL INTERESTS LIKELY TO BE CALLED
FORTH BY ONLY A PARTICULAR STATE'S PARTICIPATION IN A HEARING ON THE
DISCONTINUANCE OF MULTICARRIER SERVICE. 

APPARENTLY, THE COURT RECOGNIZES THE INHERENT AMBIGUITY OF THE
STATUTE.  THUS, ITS OPINION FINALLY COMES TO REST ON THE PRINCIPLE OF
DEFERENCE TO THE ADMINISTRATIVE AGENCY'S CONSTRUCTION OF THE STATUTE. 
SUFFICE IT TO SAY THAT I AM NOT PERSUADED BY THE DEFERENCE ARGUMENT AS
APPLIED TO THE AGENCY'S PRO FORMA FINDING OF ADEQUATE NOTICE IN THIS
VERY LITIGATION WHERE THE NOTICE ISSUE EVIDENTLY WAS NOT BEFORE THE
AGENCY AT THE TIME OF ITS RULING.  SEE 331 I.C.C. 447, 448. 

THE ABOVE CONSIDERATIONS ARE NOT MEANT TO REFLECT ANY CONCLUSIONS
CONCERNING THE MERITS OF THE STATUTORY CONSTRUCTION ISSUE PRESENTED IN
THESE CASES.  TO THE CONTRARY, MY POINT IS SIMPLY THAT, WITHOUT BRIEFS
AND ORAL ARGUMENT BY THE PARTIES ON THE MERITS OF THE QUESTION, I WOULD
REFRAIN FROM CHOOSING BETWEEN THE CONFLICTING CONSTRUCTIONS OF SEC.
13A(1) PRESSED UPON THE COURT BY THE PARTIES.  THEREFORE, I WOULD NOTE
PROBABLE JURISDICTION IN NOS. 386 AND 410.  I WOULD WITHHOLD ACTION IN
NO. 387 PENDING DISPOSITIONS IN NOS. 386 AND 410.  IN NO. 396, I WOULD
NOTE PROBABLE JURISDICTION, LIMITED TO THE QUESTIONS CONCERNING THE
DISTRICT COURT'S ACTION IN REINSTATING THE RESTRAINING ORDER OF
SEPTEMBER 6, 1968. 

/1/  NOS. 387 AND 396 ARE APPEALS BY THE GOVERNMENT, THE ICC, AND
THE LOUISVILLE & NASHVILLE RAILROAD CO. CHALLENGING THE DISTRICT
COURT'S HOLDING THAT THE ISSUES INVOLVING THE DISCONTINUANCE OF THE
LOUISVILLE & NASHVILLE RAILROAD CO.'S "HUMMINGBIRD" TRAIN ARE SO
FACTUALLY RELATED TO THE DISCONTINUANCE OF THE "GEORGIAN" RUN THAT THE
"HUMMINGBIRD" DISCONTINUANCE SHOULD BE REMANDED IN LIGHT OF THE
PROJECTED RECONSIDERATION OF THE "GEORGIAN" DISCONTINUANCE.  IN
ADDITION, THE LOUISVILLE & NASHVILLE RAILROAD CO., IN NO. 396,
CHALLENGES THE DISTRICT COURT'S ACTION IN REINSTATING THE SEPTEMBER 6,
1968, RESTRAINING ORDER ENTERED BY JUDGE ROBSON; THAT RESTRAINING ORDER
PROHIBITED DISCONTINUANCE OF THE "HUMMINGBIRD" TRAINS PENDING
RESOLUTION OF THE CASE IN THE DISTRICT COURT.  ON APRIL 3, 1970, THIS
COURT STAYED THE DISTRICT COURT'S ACTION IN REINSTATING THE EARLIER
RESTRAINING ORDER.  397 U.S. 1019.  THE EFFECT OF TODAY'S OPINION ON
THE STATUS OF THAT RESTRAINING ORDER IS UNCLEAR.     /2/  THE
DISCONNECTED NATURE OF THE COURT'S REASONING IS NICELY ILLUSTRATED IN
N. 3 OF ITS OPINION, ANTE, AT 11.  WE ARE OFFERED TWO QUOTATIONS-- ONE
FROM THE SENATE REPORT AND THE OTHER FROM THE ASSOCIATION OF AMERICAN
RAILROADS-- AS LEGISLATIVE HISTORY SUPPORTING THE COURT'S CONSTRUCTION
OF SEC. 13A(1).  THE SUBSTANCE OF BOTH CLEARLY SUPPORTS THE VIEW OF
SEC. 13A(1) AS SEEKING TO REMEDY STATE REGULATORY PAROCHIALISM. 
UNFORTUNATELY, NEITHER QUOTATION SPEAKS TO THE QUESTION PUT IN ISSUE BY
THE COURT'S RATIONALE FOR SUMMARILY DISPOSING OF THESE CASES; I.E.,
WHETHER THE CONGRESSIONAL DECISION TO PROFFER AN ALTERNATIVE NATIONAL
FORUM AS A REMEDY FOR STATE PAROCHIALISM IS TO BE CONSTRUED SOLELY IN
LIGHT OF THE CARRIER INTEREST IN ESCAPING STATE REGULATORY AGENCIES. 
YET THE COURT, AFTER RECITING THESE QUOTATIONS, CHOOSES TO DRAW THE
INFERENCE THAT THE STATUTE CANNOT BE EASILY CONSTRUED TO DO MORE THAN
SERVE THAT INTEREST OF THE CARRIERS.  I MUST RESPECTFULLY SUBMIT THAT
THIS IS A RATHER OBVIOUS NON SEQUITUR. 
..END :






















COLOMBO V. NEW YORK, 400 U.S. 16 


       COLOMBO V. NEW YORK

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS

           OF NEW YORK

        NO. 175.  DECIDED OCTOBER 19, 1970 


CERTIORARI GRANTED; 25 N.Y.2D 641, 254 N.E.2D 340, VACATED AND
REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED, AND THE CASE IS REMANDED TO THE COURT OF APPEALS OF NEW YORK
FOR FURTHER CONSIDERATION IN LIGHT OF WALLER V. FLORIDA, 397 U.S. 387. 

MR. JUSTICE BLACK IS OF THE OPINION THAT CERTIORARI SHOULD BE
GRANTED AND THE JUDGMENT REVERSED ON THE GROUND THAT THE STATE
PROSECUTION IS BARRED BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT OF THE CONSTITUTION. 
..END :






MCCANN V. BABBITZ, 400 U.S. 1 


       MCCANN, DISTRICT ATT0RNEY OF MILWAUKEE COUNTY V. BABBITZ

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF WISCONSIN

  NO. 297.  DECIDED OCTOBER 12, 1970 


310 F.SUPP.  293, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  MITCHELL V. DONOVAN, 398 U.S. 427, AND
GUNN V. UNIVERSITY COMMITTEE TO END THE WAR IN VIET NAM, 399 U.S. 383. 

..END :











HALL V. UNITED STATES, 400 U.S. 2 


       HALL V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 5191.  DECIDED OCTOBER 12, 1970 


CERTIORARI GRANTED; VACATED AND REMANDED TO THE DISTRICT COURT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF ALABAMA WITH DIRECTIONS TO DISMISS THE COMPLAINT AS MOOT. 
..END :











HANEMANN V. FLORIDA, 400 U.S. 2 


       HANEMANN V. FLORIDA

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           FLORIDA

        NO. 5156.  DECIDED OCTOBER 12, 1970 


CERTIORARI GRANTED; VACATED AND REMANDED TO DISTRICT COURT OF APPEAL
OF FLORIDA.  SEE:  221 SO.2D 228. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST
DISTRICT, FOR CONSIDERATION IN LIGHT OF ASHE V. SWENSON, 397 U.S. 436. 

..END :









LOS ANGELES HERALD-EXAMINER V. KENNEDY, 400 U.S. 3 


       LOS ANGELES HERALD-EXAMINER ET AL. V. KENNEDY, REGIONAL

           DIRECTOR, NATIONAL LABOR RELATIONS BOARD, ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT

        NO. 350.  DECIDED OCTOBER 12, 1970 


CERTIORARI GRANTED; VACATED AND REMANDED TO DISTRICT COURT. 

PER CURIAM. 

THE MOTION OF THE CHAMBER OF COMMERCE OF THE UNITED STATES FOR LEAVE
TO FILE A BRIEF, AS AMICUS CURIAE, IS GRANTED.  THE MOTION TO DEFER
CONSIDERATION OF THE PETITION FOR A WRIT OF CERTIORARI IS DENIED. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE ORDERS OF THE
COURT OF APPEALS ARE VACATED AND;HE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA WITH
DIRECTIONS TO DISMISS THE CASE AS MOOT.  SEARS, ROEBUCK & CO. V. CARPET
LAYERS, 397 U.S. 655. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE MOTIONS OR THIS PETITION. 
..END :






















NELSON V. GEORGE, 399 U.S. 224 


       NELSON, WARDEN V. GEORGE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 595.  ARGUED MARCH 31, 1970-- DECIDED JUNE 29, 1970 


RESPONDENT, WHO IS SERVING A SENTENCE UNDER A CALIFORNIA CONVICTION,
WAS TRIED, CONVICTED, AND SENTENCED IN NORTH CAROLINA, AND A DETAINER,
REQUESTED BY NORTH CAROLINA, WAS NOTED BY PETITIONER CALIFORNIA
WARDEN.  RESPONDENT SOUGHT A WRIT OF HABEAS CORPUS FROM A FEDERAL
DISTRICT COURT IN CALIFORNIA, ATTACKING HIS NORTH CAROLINA CONVICTION. 
HIS APPLICATION WAS DENIED AND IN HIS PETITION FOR REHEARING HE ARGUED
THAT THE DETAINER ACTED AS A FORM OF CONSTRUCTIVE CUSTODY AS IT
ADVERSELY AFFECTED HIS PAROLE POTENTIAL AND THE DEGREE OF SECURITY IN
WHICH HE WAS DETAINED.  REHEARING WAS DENIED ON THE BASIS OF MCNALLY V.
HILL, 293 U.S. 131, AND RESPONDENT APPEALED TO THE COURT OF APPEALS. 
THE INTERVENING DECISION IN PEYTON V. ROWE, 391 U.S. 54, OVERRULED
MCNALLY V. HILL, AND HELD THAT A STATE PRISONER SERVING CONSECUTIVE
SENTENCES IN THE FORUM STATE IS "IN CUSTODY" FOR PURPOSES OF
JURISDICTION FOR COLLATERAL ATTACK.  THE COURT OF APPEALS HELD THAT THE
DISTRICT COURT HAD JURISDICTION TO CONSIDER RESPONDENT'S CLAIMS
CONCERNING THE IMPACT OF THE DETAINER.  HELD: 

1.  SINCE THE CALIFORNIA COURTS, WHICH ARE NOT REQUIRED TO ENFORCE A
FOREIGN PENAL JUDGMENT, HAVE NO BEEN PRESENTED WITH THE QUESTION OF
WHAT EFFECT, IF ANY, THEY WILL GIVE THE NORTH CAROLINA DETAINER IN
TERMS OF RESPONDENT'S PRESENT "CUSTODY," RESPONDENT HAS NOT EXHAUSTED
HIS CALIFORNIA REMEDIES.  P. 229. 

2.  THE FEDERAL DISTRICT COURT SHOULD RETAIN JURISDICTION OF THE
PETITION FOR WRIT OF HABEAS CORPUS PENDING RESPONDENT'S APPLICATION TO
THE CALIFORNIA COURTS FOR APPROPRIATE RELIEF IF HE ESTABLISHES HIS
CLAIM THAT THE DETAINER INTERFERES WITH RELIEF THAT CALIFORNIA MIGHT
GRANT IN THE ABSENCE OF THE DETAINER.  PP. 229-230. 

410 F.2D 1179, AFFIRMED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT IN THIS CASE TO CONSIDER WHETHER THE RESPONDENT,
PRESENTLY CONFINED IN CALIFORNIA UNDER A STATE CONVICTION, MAY UTILIZE
THE FEDERAL COURTS IN CALIFORNIA TO TEST THE VALIDITY OF A NORTH
CAROLINA SENTENCE BEFORE BEGINNING TO SERVE THAT SENTENCE AND WHILE
UNDER A DETAINER FILED BY NORTH CAROLINA.  RESPONDENT CLAIMS THE
SENTENCE YET TO BE SERVED IN NORTH CAROLINA IS "CONSECUTIVE" UNDER
PEYTON V. ROWE, 391 U.S. 54 (1968).  HOWEVER, SINCE HIS PETITION
CHALLENGES THE PRESENT EFFECT BEING GIVEN THE NORTH CAROLINA DETAINER
BY THE CALIFORNIA AUTHORITIES, PARTICULARLY WITH RESPECT TO GRANTING
HIM PAROLE, WE HAVE CONCLUDED THAT AS TO THAT CLAIM RESPONDENT FAILED
TO EXHAUST HIS STATE REMEDIES AND ACCORDINGLY DO NOT REACH THE QUESTION
FOR WHICH THE WRIT WAS GRANTED. 

THE RECORD DISCLOSES THAT ON APRIL 27, 1964, JOHN EDWARD GEORGE WAS
CONVICTED ON A PLEA OF GUILTY IN A CALIFORNIA COURT OF FIRST-DEGREE
ROBBERY.  HE BEGAN SERVING HIS SENTENCE OF FIVE YEARS TO LIFE AT SAN
QUENTIN.  /1/  FOLLOWING HIS CONVICTION, DETAINERS WERE FILED IN
CALIFORNIA BY THE STATES OF KANSAS, NEVADA, AND NORTH CAROLINA, ON JUNE
4, 10, AND 11, 1964, RESPECTIVELY. 

EXERCISING HIS RIGHT UNDER ARTICLE IIIA) OF THE INTERSTATE
"AGREEMENT ON DETAINERS,"  /2/  GEORGE REQUESTED TEMPORARY RELEASE TO
STAND TRIAL ON THE UNDERLYING ROBBERY CHARGE PENDING IN NORTH
CAROLINA.  ACCORDINGLY, ON JULY 20, 1966, HE WAS RELEASED TO NORTH
CAROLINA AUTHORITIES AND TRANSPORTED THERE TO STAND TRIAL.  THE NORTH
CAROLINA TRIAL WAS HELD, AND ON FEBRUARY 8, 1967, GEORGE WAS CONVICTED
AND SENTENCED TO IMPRISONMENT FOR 12 TO 15 YEARS.  THE CONVICTION WAS
THEREAFTER AFFIRMED, STATE V. GEORGE, 271 N.C. 438, 156 S.E.2D 845
(1967). 

FOLLOWING THE NORTH CAROLINA TRIAL GEORGE WAS RETURNED TO SAN
QUENTIN TO COMPLETE SERVICE OF HIS CALIFORNIA SENTENCE.  ON APRIL 14,
1967, THE CLERK OF THE GASTON COUNTY SUPERIOR COURT ADDRESSED A LETTER
TO THE RECORDS OFFICER AT SAN QUENTIN ADVISING THAT GEORGE WAS "WANTED
AT THE TERMINATION OF HIS IMPRISONMENT THERE FOR RETURN TO THIS
JURISDICTION TO SERVE THE SENTENCE IMPOSED IN THE SUPERIOR COURT OF
GASTON COUNTY, NORTH CAROLINA."  THE WARDEN OF SAN QUENTIN ACKNOWLEDGED
THE DETAINER, INDICATING THAT IT WAS "NOTED IN OUR RECORDS." 

GEORGE THEN BROUGHT A PETITION FOR HABEAS CORPUS IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA IN WHICH HE
SOUGHT TO ATTACK NOT HIS CALIFORNIA CONVICTION, FOR WHICH HE WAS THEN
INCARCERATED, BUT THE NORTH CAROLINA CONVICTION FOR WHICH THE DETAINER
HAD BEEN FILED.  THE DISTRICT COURT DENIED THE APPLICATION BY ORDER
DATED MARCH 1, 1968, ON THE GROUND THAT MCNALLY V. HILL, 293 U.S. 131
(1934), FORECLOSED HABEAS CORPUS RELIEF ON THE NORTH CAROLINA
CONVICTION WHILE GEORGE WAS STILL IN CUSTODY UNDER THE PRIOR CALIFORNIA
JUDGMENT. 

GEORGE FILED A PETITION FOR REHEARING IN THE DISTRICT COURT IN WHICH
HE ARGUED THAT EVEN THOUGH HE WAS ACTUALLY SERVING TIME IN A CALIFORNIA
JAIL AND THUS NOT TECHNICALLY SERVING HIS NORTH CAROLINA SENTENCE,
HABEAS CORPUS WAS NOT FORECLOSED SINCE THE NORTH CAROLINA DETAINER
OPERATED AS A FORM OF CONSTRUCTIVE CUSTODY.  IN SUPPORT OF HIS
CONTENTION HE DREW UPON THE LANGUAGE IN ARKETA V. WILSON, 373 F.2D 582
(C.A. 9TH CIR. 1967), TO THE EFFECT THAT THE STRICT RULE OF MCNALLY V.
HILL HAD BEEN SOMEWHAT ERODED BY THIS COURT'S SUBSEQUENT DECISIONS IN
EX PARTE HULL, 312 U.S. 546 (1941), AND JONES V. CUNNINGHAM, 371 U.S.
236 (1963), AND THAT "IT APPEARS THAT THERE ARE SITUATIONS IN WHICH THE
WRIT CAN BE USED TO FREE A PETITIONER FROM A CERTAIN TYPE OF CUSTODY
RATHER THAN FROM ALL CUSTODY."  ARKETA V. WILSON, SUPRA, AT 584. 
GEORGE ARGUED THAT THE NORTH CAROLINA WARRANT WAS "A FORM OF CUSTODY"
SINCE IT AFFECTED HIS CUSTODIAL CLASSIFICATION AND PROBABILITY OF
PAROLE ON HIS CALIFORNIA SENTENCE.  /3/  ON MARCH 20, 1968, THE
DISTRICT COURT DENIED THE PETITION FOR REHEARING AND GEORGE APPEALED TO
THE COURT OF APPEALS FOR THE NINTH CIRCUIT. 

OUR DECISION IN PEYTON V. ROWE INTERVENED.  IN THAT CASE WE
OVERRULED MCNALLY V. HILL, 293 U.S. 131 (1934), AND HELD THAT A STATE
PRISONER SERVING CONSECUTIVE SENTENCES IN THE FORUM STATE IS "IN
CUSTODY" UNDER EACH SENTENCE FOR PURPOSES OF JURISDICTION FOR
COLLATERAL ATTACK UNDER 28 U.S.C. 2241(C)(3), /4/  THUS PERMITTING A
FEDERAL HABEAS CORPUS ACTION TO TEST A FUTURE STATE SENTENCE WHILE HE
IS SERVING AN EARLIER SENTENCE.  IN PEYTON V. ROWE THE CONSECUTIVE
SENTENCES WERE IMPOSED BY THE FORUM STATE, AND THE SENTENCES WERE BEING
SERVED IN THAT STATE'S PRISON.  UNLIKE THE CASE NOW BEFORE US, IN SUCH
A SINGLE-STATE SITUATION THE CHALLENGE TO THE CONTINUING VITALITY OF
AHRENS V. CLARK, 335 U.S. 188 (1948), DOES NOT ARISE.  SEE WORD V.
NORTH CAROLINA, 406 F.2D 352 (C.A. 4TH CIR. 1969).  /5/ 

AS WE HAVE NOTED, HAVING NAMED THE WARDEN OF SAN QUENTIN AS THE
RESPONDENT IN HIS AMENDED PETITION TO THE FEDERAL DISTRICT COURT IN
CALIFORNIA AND HAVING HAD HIS PETITION REFUSED, GEORGE SOUGHT
REHEARING.  IN THAT APPLICATION GEORGE ALLEGED THAT THE CALIFORNIA
AUTHORITIES HAD IMPOSED UPON HIM A "FORM OF CUSTODY" BECAUSE OF THE
NORTH CAROLINA DETAINER.  SPECIFICALLY, HE ALLEGED THAT THE MERE
PRESENCE OF THE DETAINER ADVERSELY AFFECTED THE PROBABILITY OF HIS
SECURING PAROLE AND THE DEGREE OF SECURITY IN WHICH HE WAS DETAINED BY
STATE AUTHORITIES.  CALIFORNIA CALIFORNIA DENIES THAT THE EXISTENCE OF
THE DETAINER HAS ANY CONSEQUENCES AFFECTING HIS PAROLE POTENTIAL OR
CUSTODIAL STATUS. 

SINCE THE FULL FAITH AND CREDIT CLAUSE DOES NOT REQUIRE THAT SISTER
STATES ENFORCE A FOREIGN PENAL JUDGMENT, HUNTINGTON V. ATTRILL, 146
U.S. 657 (1892); CF. MILWAUKEE COUNTY V. M. E. WHITE CO., 296 U.S. 268,
279 (1935), CALIFORNIA IS FREE TO CONSIDER WHAT EFFECT, IF ANY, IT WILL
GIVE TO THE NORTH CAROLINA DETAINER IN TERMS OF GEORGE'S PRESENT
"CUSTODY."  /6/  BECAUSE THE PETITION FOR REHEARING RAISED PRECISELY
SUCH A CHALLENGE TO THE CALIFORNIA "CUSTODY," A MATTER THAT HAS NOT YET
BEEN PRESENTED TO THE CALIFORNIA COURTS, WE CONCLUDE THAT RESPONDENT
GEORGE HAS NOT YET EXHAUSTED HIS CALIFORNIA REMEDIES.  SEE EX PARTE
ROYALL, 117 U.S. 241 (1886). 

RESPONDENT INSISTS THAT THE VERY PRESENCE OF THE NORTH CAROLINA
DETAINER HAS AND WILL CONTINUE TO HAVE AN ADVERSE IMPACT ON
CALIFORNIA'S CONSIDERATION OF HIS CLAIM FOR PAROLE.  THEREFORE, THE
UNITED STATES DISTRICT COURT IN CALIFORNIA SHOULD RETAIN JURISDICTION
OF THE PETITION FOR HABEAS CORPUS RELIEF PENDING RESPONDENT'S FURTHER
APPLICATION TO THE CALIFORNIA COURTS FOR WHATEVER RELIEF, IF ANY, MAY
BE AVAILABLE AND APPROPRIATE IF HE ESTABLISHES HIS CLAIM THAT NORTH
CAROLINA'S DETAINER INTERFERES WITH RELIEF THAT MIGHT, IN THE ABSENCE
OF THE DETAINER, BE GRANTED BY CALIFORNIA.  WE AFFIRM THE JUDGMENT OF
THE COURT OF APPEALS TO THE EXTENT IT FINDS JURISDICTION IN THE
DISTRICT COURT TO CONSIDER RESONDENT'S CLAIMS WITH RESPECT TO THE
IMPACT OF THE DETAINER IF RESPONDENT ELECTS TO PRESS THOSE CLAIMS AFTER
HE EXHAUSTS HIS REMEDIES IN THE CALIFORNIA COURTS. 

              AFFIRMED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  UNDER CALIFORNIA LAW THE SENTENCE FOR FIRST-DEGREE ROBBERY IS AN
INDETERMINATE FIVE YEARS TO LIFE SENTENCE IN THE DISCRETION OF THE
CALIFORNIA ADULT AUTHORITY.  CAL. PEN.  CODE SEC. 213. 

/2/  CAL. PEN.  CODE SEC. 1389 (SUPP. 1968). 

/3/  APP. 26. 

/4/  "SEC.  2241.  POWER TO GRANT WRIT. 

"(A) WRITS OF HABEAS CORPUS MAY BE GRANTED BY THE SUPREME COURT, ANY
JUSTICE THEREOF, THE DISTRICT COURTS AND ANY CIRCUIT JUDGE WITHIN THEIR
RESPECTIVE JURISDICTIONS.  THE ORDER OF A CIRCUIT JUDGE SHALL BE
ENTERED IN THE RECORDS OF THE DISTRICT COURT OF THE DISTRICT WHEREIN
THE RESTRAINT COMPLAINED OF IS HAD. 

    *          *          *          * 

"(C) THE WRIT OF HABEAS CORPUS SHALL NOT EXTENT TO A PRISONER UNLESS
-

  *          *          *          * 

"(3) HE IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS OR
TREATIES OF THE UNITED STATES . . . ." 

/5/  IN THAT CASE CHIEF JUDGE HAYNSWORTH, EXPRESSING THE VIEW OF THE
MAJORITY OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT SITTING EN
BANC, CONCLUDED THAT AHRENS V. CLARK WAS A VENUE DECISION, AND THAT THE
PHYSICAL PRESENCE OF THE PETITIONER WITHIN THE DISTRICT WAS NOT AN
INVARIABLE REQUIREMENT IF RIGID ADHERENCE TO THE RULE WOULD LEAVE ON IN
PRISON WITHOUT AN EFFECTIVE REMEDY.  THE LEGISLATIVE HISTORY OF THE
1966 AMENDMENTS TO 28 U.S.C. 2241(D) (1964 ED., SUPP. V) SUGGESTS THAT
CONGRESS MAY HAVE INTENDED TO ENDORSE AND PRESERVE THE TERRITORIAL RULE
OF AHRENS TO THE EXTENT THAT IT WAS NOT ALTERED BY THOSE AMENDMENTS. 
SEE H.R. REP. NO. 1894, 89TH CONG., 2D SESS., 1-2 (1966).  SEE ALSO S.
REP. NO. 1502, 89TH CONG., 2D SESS. (1966).  THOSE CHANGES WERE MADE BY
CONGRESS, OF COURSE, PRIOR TO OUR DECISION IN PEYTON V. ROWE;
NECESSARILY CONGRESS COULD NOT HAVE HAD THE MULTISTATE PROBLEM WITH
WHICH WE ARE NOW CONFRONTED IN MIND.  WHETHER, IN LIGHT OF THE
LEGISLATIVE HISTORY OF SEC. 2241(D) AND THE CHANGED CIRCUMSTANCES
BROUGHT ABOUT BY PEYTON V. ROWE, THE RIGOR OF OUR AHRENS HOLDING MAY BE
RECONSIDERED IS AN ISSUE UPON WHICH WE RESERVE JUDGMENT. 

HOWEVER, WE NOTE THAT PRISONERS UNDER SENTENCE OF A FEDERAL COURT
ARE CONFRONTED WITH NO SUCH DILEMMA SINCE THEY MAY BRING A CHALLENGE AT
ANY TIME IN THE SENTENCING COURT IRRESPECTIVE OF WHERE THEY MAY BE
INCARCERATED.  28 U.S.C. 2255.  IT IS ANOMALOUS THAT THE FEDERAL
STATUTORY SCHEME DOES NOT CONTEMPLATE AFFORDING STATE PRISONERS THAT
REMEDY.  THE OBVIOUS, LOGICAL, AND PRACTICAL SOLUTION IS AN AMENDMENT
TO SEC. 2241 TO REMEDY THE SHORTCOMING THAT HAS BECOME APPARENT
FOLLOWING THE HOLDING IN PEYTON V. ROWE.  SOUND JUDICIAL ADMINISTRATION
CALLS FOR SUCH AN AMENDMENT. 

/6/  WE ARE NOT HERE CONCERNED WITH THE SCOPE OF CALIFORNIA'S
ULTIMATE DUTY, IMPOSED BY ART. IV, SEC. 2, CL. 2, OF THE CONSTITUTION,
TO EXTRADITE PERSONS WANTED FOR TRIAL OR EXECUTION OF SENTENCE IN A
SISTER STATE.  WE NOTE ONLY THAT, UNTIL THE OBLIGATION TO EXTRADITE
MATURES, THE FULL FAITH AND CREDIT CLAUSE DOES NOT REQUIRE CALIFORNIA
TO ENFORCE THE NORTH CAROLINA PENAL JUDGMENT IN ANY WAY. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING. 

I JOIN THE COURT'S OPINION WITH THE FOLLOWING OBSERVATIONS.  FIRST,
I DO NOT UNDERSTAND THE COURT TO SUGGEST THAT RESPONDENT'S FAILURE TO
EXHAUST STATE REMEDIES WITH RESPECT TO HIS CLAIM THAT CALIFORNIA IS
GIVING A CONSTITUTIONALLY IMPERMISSIBLE EFFECT TO HIS NORTH CAROLINA
CONVICTION, RENDERED IT IMPROPER FOR THE FEDERAL COURTS TO CONSIDER HIS
CHALLENGE TO THE VALIDITY OF THE NORTH CAROLINA CONVICTION TO THE
EXTENT THAT HE HAD EXHAUSTED NORTH CAROLINA REMEDIES WITH RESPECT
THERETO.  SECOND, AGREEING WITH THE REASONS GIVEN BY THE COURT FOR NOT
REACHING THE PROPRIETY OF THE COURT OF APPEALS' RESOLUTION OF
RESPONDENT'S CHALLENGE TO THE NORTH CAROLINA CONVICTION.  I WOULD
DISMISS THAT PART OF THE WRIT AS IMPROVDENTLY GRANTED.  THIRD, PENDING
THE CONGRESSIONAL ACTION THAT THE COURT'S OPINION ENVISAGES, I THINK IT
NOT INAPPROPRIATE TO LEAVE UNDISTURBED SUCH CONFLICTS AS EXIST BETWEEN
THE DECISION OF THE COURT OF APPEALS IN THE PRESENT CASE AND DECISIONS
IN OTHER CIRCUITS, SEE WORD V. NORTH CAROLINA, 406 F.2D 352 (C.A. 4TH
CIR. 1969); UNITED STATES EX REL. VAN SCOTEN V. PENNSYLVANIA, 404 F.2D
767 (C.A. 3D CIR. 1968), RESPECTING THE PROPER TREATMENT OF HABEAS
CORPUS CLAIMS SUCH AS THOSE INVOLVED IN RESPONDENT'S CHALLENGE IN THE
CALIFORNIA COURTS TO THE VALIDITY OF HIS NORTH CAROLINA CONVICTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS CALIFORNIA PRISONER IS SEEKING TO CHALLENGE BY FEDERAL HABEAS
CORPUS THE CONSTITUTIONALITY OF HIS CONVICTION IN NORTH CAROLINA, THE
SENTENCE FOR WHICH HE MUST SERVE WHEN HE FINISHES HIS CALIFORNIA TERM. 
THE INFIRMITIES OF THE NORTH CAROLINA JUDGMENT THAT HE ALLEGES RELATE
TO THE ABSENCE OF A SPEEDY TRIAL AND TO THE KNOWING USE OF PERJURED
TESTIMONY.  NORTH CAROLINA FILED A DETAINER AGAINST HIM IN CALIFORNIA;
AND IT IS THAT DETAINER, NOT THE NORTH CAROLINA JUDGMENT THAT THE COURT
USES TO AVOID DECISION ON THE BASIC ISSUE RAISED IN THE PETITION.  THE
PETITION FOR HABEAS CORPUS STATED, "IT IS THE NORTH CAROLINA SUPREME
COURT DECISION THAT IS UNDER ATTACK HERE."  THE ONLY REFERENCE TO A
DETAINER MADE IN THE PETITION WAS TO THE DETAINER FILED PRIOR TO HIS
RETURN TO NORTH CAROLINA FOR TRIAL.  THE REFERENCE TO THE DETAINER
FILED AFTER HIS NORTH CAROLINA CONVICTION WAS MADE IN HIS PETITION FOR
REHEARING.  THE DISTRICT COURT HAD DISMISSED THE PETITION BEFORE PEYTON
V. ROWE, 391 U.S. 54, WAS DECIDED; AND IN HIS ARGUMENT FOR A REHEARING
THE PRISONER SOUGHT TO DISTINGUISH MCNALLY V. HILL, 293 U.S. 131, WHICH
PEYTON V. ROWE OVERRULED, BY ARGUING THAT HIS CASE WAS DIFFERENT
BECAUSE THE NORTH CAROLINA DETAINER WAS BEING USED TO HIS DISADVANTAGE
IN CALIFORNIA.  BOTH THE PETITION FOR HABEAS CORPUS AND THE PETITION
FOR REHEARING WERE PRO SE PRODUCTS.  THUS THE FALSE ISSUE GOT INTO THE
CASE.     THE COURT HOLDS THAT THE CHALLENGE OF THE NORTH CAROLINA
JUDGMENT MAY NOT YET BE MADE IN CALIFORNIA BECAUSE THE PRISONER HAS NOT
YET SHOWN UNDER CALIFORNIA LAW WHETHER THE EXISTENCE OF THE NORTH
CAROLINA DETAINER CAN AFFECT OR IS AFFECTING HIS PAROLE POTENTIAL OR
CUSTODIAL STATUS AND THEREFORE THAT HE HAS NOT EXHAUSTED HIS REMEDIES
UNDER 28 U.S.C. 2254 (1964 ED., SUPP. V). 

THE REMEDIES WITH WHICH 28 U.S.C. 2254 (1964 ED., SUPP. V) /1/  IS
CONCERNED RELATE TO THOSE WHICH WOULD REMOVE THE INFIRMITIES IN THE
NORTH CAROLINA JUDGMENT, MAKING UNNECESSARY FEDERAL INTERVENTION. 
PLAINLY, CALIFORNIA CAN SUPPLY NO SUCH REMEDIES. 

THE REMEDIES TO WHICH THE COURT ADVERTS ARE OF A WHOLLY DIFFERENT
CHARACTER-- THEY CONCERN CALIFORNIA PROCEDURES FOR CORRECTING ANY
IMPROPER USE IN CALIFORNIA OF NORTH CAROLINA'S JUDGMENT.  THEY ARE
WHOLLY IRRELEVANT TO THE REASONS WHY WE HELD IN PEYTON V. ROWE THAT A
STATE PRISONER SERVING ONE SENTENCE MAY CHALLENGE BY FEDERAL HABEAS
CORPUS THE CONSTITUTIONALITY OF A SECOND STATE SENTENCE SCHEDULED FOR
FUTURE SERVICE.  WE RULED THAT IF PRISONERS HAD TO WAIT UNTIL THE FIRST
SENTENCE WAS SERVED BEFORE THE CONSTITUTIONALITY OF THE SECOND COULD BE
CHALLENGED, GRAVE INJUSTICES MIGHT BE DONE: 

     "BY THAT TIME, DIMMED MEMORIES OR THE DEATH OF WITNESSES IS

  BOUND TO RENDER IT DIFFICULT OR IMPOSSIBLE TO SECURE CRUCIAL

  TESTIMONY ON DISPUTED ISSUES OF FACT . . . . TO NAME BUT A FEW

EXAMPLES (OF PREJUDICE RESULTING FROM THE KIND OF DELAY MCNALLY

  IMPOSES), FACTUAL DETERMINATIONS ARE OFTEN DISPOSITIVE OF CLAIMS

  OF COERCED CONFESSION . . .; LACK OF COMPETENCY TO STAND TRIAL .

  . .; AND DENIAL OF A FAIR TRIAL . . . . POSTPONEMENT OF THE

  ADJUDICATION OF SUCH ISSUES FOR YEARS CAN HARM BOTH THE PRISONER

  AND THE STATE AND LESSENS THE PROBABILITY THAT FINAL DISPOSITION

  OF THE CASE WILL DO SUBSTANTIAL JUSTICE."  391 U.S.,AT 62. 

IF THE PRISONER WAS SEEKING TO ESCAPE THE RIGORS OF THE DETAINER
FILED BY NORTH CAROLINA, THE EXHAUSTION OF CALIFORNIA REMEDIES WOULD OF
COURSE BE PROPER.  BUT THE GRAVAMEN OF THE PETITION FOR HABEAS CORPUS
CONCERNED THE VALIDITY OF NORTH CAROLINA'S JUDGMENT AND THAT IS "THE
QUESTION PRESENTED" WITHIN THE MEANING OF 28 U.S.C. 2254 (1964 ED.,
SUPP. V). 

THE COURT OF APPEALS, 410 F.2D 1179, DID NOT DECIDE THAT ONLY
CALIFORNIA, NOT NORTH CAROLINA, COULD PASS ON THE MERITS OF THE
PETITION, VIZ., ON THE VALIDITY OR INVALIDITY OF THE NORTH CAROLINA
JUDGMENT.  IT EMPHASIZED THAT THERE WERE PRACTICAL DIFFICULTIES
WHICHEVER FORUM WERE CHOSEN.  ID., AT 1182.  TRYING THE ISSUES IN
CALIFORNIA WOULD PUT A BURDEN ON NORTH CAROLINA PROSECUTORS AND
WITNESSES.  TRYING THE ISSUES IN NORTH CAROLINA WOULD ENTAIL PROBLEMS
OF EXPENSE AND SECURITY INSOFAR AS THE PRISONER'S APPEARANCE THERE WAS
NEEDED.  THE FACT THAT THE FEDERAL COURT IN CALIFORNIA HAS
"JURISDICTION," IT RULED, DOES NOT MEAN THAT IT COULD NOT TRANSFER THE
CAUSE TO THE FEDERAL COURT IN NORTH CAROLINA.  /2/ 

THE COURT OF APPEALS LEFT OPEN FOR THE INFORMED DISCRETION OF THE
DISTRICT COURT THE QUESTION OF HOW AND WHERE THE PRISONER MAY BE HEARD
ON THE OF THE NORTH CAROLINA JUDGMENT.  I WOULD AFFIRM THE COURT OF
APPEALS AND RESERVE FOR ANOTHER DAY THE QUESTION WHETHER THE
APPLICATION COULD BE TRANSFERRED TO NORTH CAROLINA FOR HEARING. 

/1/  "(B) AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A
PERSON IN CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT
BE GRANTED UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE
REMEDIES AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER
AN ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER. 

"(C) AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

/2/  SEE 28 U.S.C. 1404(A); WORD V. NORTH CAROLINA, 406 F.2D 352. 

IN H.R. REP. NO. 1894, 89TH CONG., 2D SESS., 1-2, IT IS STATED: 

"SECTION 2241 OF TITLE 28, U.S.C.  VESTS JURISDICTION TO ENTERTAIN
HABEAS CORPUS APPLICATIONS ONLY IN THE DISTRICT COURT FOR THE DISTRICT
IN WHICH THE PRISONER IS CONFINED (AHRENS V. CLARK, 335 U.S. 188). 
FURTHER, SINCE THERE IS NO OTHER FORUM '.  . . WHERE IT MIGHT HAVE BEEN
BROUGHT,' THE APPLICATION MAY NOT BE TRANSFERRED TO A DIFFERENT
DISTRICT PURSUANT TO THE PROVISIONS OF SECTION 1404(A) OF TITLE 28,
U.S.C. (HOFFMAN V. BLASKI, 363 U.S. 335)." 

SEE ALSO S. REP. NO. 1502, 89TH CONG., 2D SESS.  THESE REPORTS ARE
CONCERNED WITH THE 1966 AMENDMENT TO SEC. 2241, WHICH PERMITS THE
DISTRICT COURT IN WHOSE DISTRICT A HABEAS PETITIONER WAS CONVICTED TO
CONSIDER THE HABEAS PETITION EVEN THOUGH THE HABEAS PETITIONER IS
INCARCERATED OUTSIDE THE JURISDICTION OF THAT DISTRICT COURT SO LONG AS
THE HABEAS PETITIONER IS INCARCERATED WITHIN THE STATE IN WHICH THE
DISTRICT COURT SITS.  THE 1966 AMENDMENT THUS SOLVES THE PROBLEM POSED
BY AHRENS BUT ONLY WHERE THE DISTRICT OF HIS INCARCERATION AND THE
DISTRICT IN WHICH HE WAS CONVICTED ARE IN THE SAME STATE.  SECTION
2241, AS CONSTRUED IN AHRENS, WAS THUS LEFT UNAFFECTED WHERE THE
DISTRICTS INVOLVED ARE IN DIFFERENT STATES. 

LOUISE H. RENNE, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR PETITION.  WITH HER ON THE BRIEFS WERE THOMAS C. LYNCH,
ATTORNY GENERAL, ALBERT W. HARRIS, JR., ASSISTANT ATTORNEY GENERAL, AND
EDWARD P. O'BRIEN, DEPUTY ATTORNEY GENERAL. 

GEORGE A. CUMMING, JR., BY APPOINTMENT OF THE COURT, 397 U.S. 901,
ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :





















WILLIAMS V. ILLINOIS, 399 U.S. 235 


       WILLIAMS V. ILLINOIS

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 1089.  ARGUED APRIL 22, 1970-- DECIDED JUNE 29, 1970 


APPELLANT WAS GIVEN THE MAXIMUM SENTENCE FOR PETTY THEFT UNDER
ILLINOIS LAW OF ONE YEAR'S IMPRISONMENT AND A $500 FINE, PLUS $5 IN
COURT COSTS.  THE JUDGMENT, AS PERMITTED BY STATUTE, PROVIDED THAT IF
WHEN THE ONE-YEAR SENTENCE EXPIRED HE DID NOT PAY THE MONETARY
OBLIGATIONS, HE HAD TO REMAIN IN JAIL TO WORK THEM OFF AT THE RATE OF
$5 A DAY.  WHILE IN JAIL APPELLANT, ALLEGING INDIGENCY, UNSUCCESSFULLY
PETITIONED THE SENTENCING JUDGE TO VACATE THAT PORTION OF THE ORDER
CONFINING HIM TO JAIL AFTER THE SENTENCE EXPIRED, BECAUSE OF NONPAYMENT
OF THE FINE AND COSTS.  THE ILLINOIS SUPREME COURT REJECTED APPELLANT'S
CLAIM THAT THE STATE STATUTORY PROVISION CONSTITUTED DISCRIMINATORY
TREATMENT AGAINST THOSE UNABLE TO PAY A FINE AND COURT COSTS, AND
AFFIRMED THE LOWER COURT'S DISMISSAL OF APPELLANT'S PETITION, HOLDING
THAT "THERE IS NO DENIAL OF EQUAL PROTECTION OF THE LAW WHEN AN
INDIGENT DEFENDANT IS IMPRISONED TO SATISFY PAYMENT OF THE FINE." 
HELD:  THOUGH A STATE HAS CONSIDERABLE LATITUDE IN FIXING THE
PUNISHMENT FOR STATE CRIMES AND MAY IMPOSE ALTERNATIVE SANCTIONS, IT
MAY NOT UNDER THE EQUAL PROTECTION CLAUSE SUBJECT A CERTAIN CLASS OF
CONVICTED DEFENDANTS TO A PERIOD OF IMPRISONMENT BEYOND THE STATUTORY
MAXIMUM SOLELY BY REASON OF THEIR INDIGENCY.  PP. 239-245. 

41 ILL.2D 511, 244 N.E.2D 197, VACATED AND REMANDED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL FROM ILLINOIS PRESENTS AN IMPORTANT QUESTION INVOLVING A
CLAIM OF DISCRIMINATORY TREATMENT BASED UPON FINANCIAL INABILITY TO PAY
A FINE AND COURT COSTS IMPOSED IN A CRIMINAL CASE.  THE NARROW ISSUE
RAISED IS WHETHER AN INDIGENT MAY BE CONTINUED IN CONFINEMENT BEYOND
THE MAXIMUM TERM SPECIFIED BY STATUTE BECAUSE OF HIS FAILURE TO SATISFY
THE MONETARY PROVISIONS OF THE SENTENCE.  WE NOTED PROBABLE
JURISDICTION /1/  AND SET THE CASE FOR ORAL ARGUMENT WITH NO. 782,
MORRIS V. SCHOONFIELD, POST, P. 508, ALSO DECIDED TODAY. 

ON AUGUST 16, 1967, APPELLANT WAS CONVICTED OF PETTY THEFT AND
RECEIVED THE MAXIMUM SENTENCE PROVIDED BY STATE LAW:  ONE YEAR
IMPRISONMENT AND A $500 FINE.  /2/  APPELLANT WAS ALSO TAXED $5 IN
COURT COSTS.  THE JUDGMENT DIRECTED, AS PERMITTED BY STATUTE, THAT IF
APPELLANT WAS IN DEFAULT OF THE PAYMENT OF THE FINE AND COURT COSTS AT
THE EXPIRATION OF THE ONE YEAR SENTENCE, HE SHOULD REMAIN IN JAIL
PURSUANT TO SEC. 1-7(K) OF THE ILLINOIS CRIMINAL CODE TO "WORK OFF" THE
MONETARY OBLIGATIONS AT THE RATE OF $5 PER DAY.  /3/  THUS, WHEREAS THE
MAXIMUM TERM OF IMPRISONMENT FOR PETTY THEFT WAS ONE YEAR, THE EFFECT
OF THE SENTENCE IMPOSED HERE REQUIRED APPELLANT TO BE CONFINED FOR 101
DAYS BEYOND THE MAXIMUM PERIOD OF CONFINEMENT FIXED BY THE STATUTE
SINCE HE COULD NOT PAY THE FINE AND COSTS OF $505. 

ON NOVEMBER 29, 1967, APPELLANT, WHILE STILL AN INMATE IN THE COUNTY
JAIL, PETITIONED THE SENTENCING JUDGE /4/  TO VACATE THAT PORTION OF
THE ORDER REQUIRING THAT HE REMAIN IMPRISONED UPON EXPIRATION OF HIS
ONE YEAR SENTENCE BECAUSE OF NONPAYMENT OF THE FINE AND COURT COSTS. 
APPELLANT ALLEGED THAT HE WAS INDIGENT AT ALL STAGES OF THE
PROCEEDINGS, WAS WITHOUT FUNDS OR PROPERTY TO SATISFY THE MONEY PORTION
OF THE SENTENCE, AND THAT HE WOULD "BE ABLE TO GET A JOB AND EARN FUNDS
TO PAY THE FINE AND COSTS, IF . . . RELEASED FROM JAIL UPON EXPIRATION
OF HIS ONE YEAR SENTENCE."  THE STATE DID NOT DISPUTE THE FACTUAL
ALLEGATIONS /5/  AND THE TRIAL COURT GRANTED THE STATE'S MOTION TO
DISMISS THE PETITION 

"FOR THE REASON THAT (APPELLANT) WAS NOT LEGALLY ENTITLED AT THAT
TIME TO THE RELIEF REQUESTED . . . BECAUSE HE STILL HAS TIME TO SERVE
ON HIS JAIL SENTENCE, AND WHEN THAT SENTENCE HAS BEEN SERVED HIS
FINANCIAL ABILITY TO PAY A FINE MIGHT NOT BE THE SAME AS IT IS OF THE
DATE (OF SENTENCING)." 

APPEAL WAS TAKEN DIRECTLY TO THE SUPREME COURT OF ILLINOIS, WHICH
APPEARS TO HAVE REJECTED ANY SUGGESTION BY THE TRIAL COURT THAT THE
PETITION WAS PREMATURE AND WENT ON TO DECIDE APPELLANT'S CONSTITUTIONAL
CLAIM ON THE MERITS.  IT HELD THAT "THERE IS NO DENIAL OF EQUAL
PROTECTION OF THE LAW WHEN AN INDIGENT DEFENDANT IS IMPRISONED TO
SATISFY PAYMENT OF THE FINE."  PEOPLE V. WILLIAMS, 41 ILL.2D 511, 517,
244 N.E.2D 197, 200 (1969).  /6/ 

IN ADDITION TO RENEWING THE CONSTITUTIONAL ARGUMENT REJECTED BY THE
STATE COURTS, APPELLANT ADVANCES A HOST OF OTHER CLAIMS /7/  WHICH, IN
LIGHT OF OUR DISPOSITION, WE FIND UNNECESSARY TO REACH OR DECIDE. 
APPELLANT CHALLENGES THE CONSTITUTIONALITY OF SEC. 1-7(K) OF THE
ILLINOIS CRIMINAL CODE AND ARGUES PRIMARILY THAT THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT PROHIBITS IMPRISONMENT OF AN
INDIGENT BEYOND THE MAXIMUM TERM AUTHORIZED BY THE STATUTE GOVERNING
THE SUBSTANTIVE OFFENSE WHEN THAT IMPRISONMENT FLOWS DIRECTLY FROM HIS
PRESENT INABILITY TO PAY A FINE AND COURT COSTS.  IN RESPONSE THE STATE
ASSERTS ITS INTEREST IN THE COLLECTION OF REVENUES PRODUCED BY PAYMENT
OF FINES AND CONTENDS THAT A "WORK OFF" SYSTEM, AS PROVIDED BY SEC. 1
7(K), IS A RATIONAL MEANS OF IMPLEMENTING THAT POLICY.  THAT INTEREST
IS SUBSTANTIAL AND LEGITIMATE BUT FOR PRESENT PURPOSES IT IS NOT UNLIKE
THE STATE'S INTEREST IN COLLECTING A FINE FROM AN INDIGENT PERSON IN
CIRCUMSTANCES WHERE NO IMPRISONMENT IS INCLUDED IN THE JUDGMENT.  THE
STATE ARGUES FURTHER THAT THE STATUTE IS NOT CONSTITUTIONALLY INFIRM
SIMPLY BECAUSE THE LEGISLATURE COULD HAVE ACHIEVED THE SAME RESULT BY
SOME OTHER MEANS.  WITH THAT GENERAL PROPOSITION WE HAVE NO QUARREL BUT
THAT GENERALLY DOES NOT RESOLVE THE ISSUE. 

AS NOTED EARLIER, APPELLANT'S INCARCERATION BEYOND THE STATUTORY
MAXIMUM STEMS FROM SEPARATE ALBEIT RELATED REASONS:  NONPAYMENT OF A
FINE AND NONPAYMENT OF COURT COSTS.  WE FIND THAT NEITHER OF THOSE
GROUNDS CAN CONSTITUTIONALLY SUPPORT THE TYPE OF IMPRISONMENT IMPOSED
HERE, BUT WE TREAT THE FINE AND COSTS TOGETHER BECAUSE DISPOSITION OF
THE CLAIM ON FINES GOVERNS OUR DISPOSITION ON COSTS.  /8/ 

THE CUSTOM OF IMPRISONING A CONVICTED DEFENDANT FOR NONPAYMENT OF
FINES DATES BACK TO MEDIEVAL ENGLAND /9/  AND HAS LONG BEEN PRACTICED
IN THIS COUNTRY.  AT THE PRESENT TIME ALMOST ALL STATES AND THE FEDERAL
GOVERNMENT HAVE STATUTES AUTHORIZING INCARCERATION UNDER SUCH
CIRCUMSTANCES.  MOST STATES PERMIT IMPRISONMENT BEYOND THE MAXIMUM TERM
ALLOWED BY LAW, AND IN SOME THERE IS NO LIMIT ON THE LENGTH OF TIME ONE
MAY SERVE FOR NONPAYMENT.  /10/  WHILE NEITHER THE ANTIQUITY OF A
PRACTICE NOR THE FACT OF STEADFAST LEGISLATIVE AND JUDICIAL ADHERENCE
TO IT THROUGH THE CENTURES INSULATES IT FROM CONSTITUTIONAL ATTACK,
THESE FACTORS SHOULD BE WEIGHED IN THE BALANCE.  /11/  INDEED, IN PRIOR
CASES THIS COURT SEEMS TO HAVE TACITLY APPROVED INCARCERATION TO "WORK
OFF" UNPAID FINES.  SEE HILL V. WAMPLER, 298 U.S. 460 (1936); EX PARTE
JACKSON, 96 U.S. 727 (1878).  /12/ 

THE NEED TO BE OPEN TO REASSESSMENT OF ANCIENT PRACTICES OTHER THAN
THOSE EXPLICITLY MANDATED BY THE CONSTITUTION IS ILLUSTRATED BY THE
PRESENT CASE SINCE THE GREATLY INCREASED USE OF FINES AS A CRIMINAL
SANCTION HAS MADE NONPAYMENT A MAJOR CAUSE OF INCARCERATION IN THIS
COUNTRY.  /13/  DEFAULT IMPRISONMENT HAS TRADITIONALLY BEEN JUSTIFIED
ON THE GROUND THAT IT IS A COERCIVE DEVICE TO ENSURE OBEDIENCE TO THE
JUDGMENT OF THE COURT.  /14/  THUS, COMMITMENT FOR FAILURE TO PAY HAS
NOT BEEN VIEWED AS A PART OF THE PUNISHMENT OR AS AN INCREASE IN THE
PENALTY; RATHER, IT HAS BEEN VIEWED AS A MEANS OF ENABLING THE COURT TO
ENFORCE COLLECTION OF MONEY THAT A CONVICTED DEFENDANT WAS OBLIGATED BY
THE SENTENCE TO PAY.  THE ADDITIONAL IMPRISONMENT, IT HAS BEEN SAID,
MAY ALWAYS BE AVOIDED BY PAYMENT OF THE FINE.  /15/ 

WE CONCLUDE THAT WHEN THE AGGREGATE IMPRISONMENT EXCEEDS THE MAXIMUM
PERIOD FIXED THE STATUTE AND RESULTS DIRECTLY FROM AN INVOLUNTARY
NONPAYMENT OF A FINE OR COURT COSTS WE ARE CONFRONTED WITH AN
IMPERMISSIBLE DISCRIMINATION THAT RESTS ON ABILITY TO PAY, AND
ACCORDINGLY, WE VACATE THE JUDGMENT BELOW. 

GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956), MARKED A SIGNIFICANT EFFORT
TO ALLEVIATE DISCRIMINATION AGAINST THOSE WHO ARE UNABLE TO MEET THE
COSTS OF LITIGATION IN THE ADMINISTRATION OF CRIMINAL JUSTICE.  IN
HOLDING THAT THE FAILURE TO PROVIDE AN INDIGENT CRIMINAL DEFENDANT WITH
A TRIAL TRANSCRIPT AT PUBLIC EXPENSE IN ORDER TO PROSECUTE AN APPEAL
WAS A VIOLATION OF THE EQUAL PROTECTION CLAUSE, THIS COURT DECLARED
THAT "(THERE CAN BE NO EQUAL JUSTICE WHERE THE KIND OF TRIAL A MAN GETS
DEPENDS ON THE AMOUNT OF MONEY HE HAS."  ID., AT 19.  IN THE YEARS
SINCE THE GRIFFIN CASE THE COURT HAS HAD FREQUENT OCCASION TO REAFFIRM
ALLEGIANCE TO THE BASIC COMMAND THAT JUSTICE BE APPLIED EQUALLY TO ALL
PERSONS.  /16/  SUBSEQUENT DECISIONS OF THIS COURT HAVE POINTEDLY
DEMONSTRATED THAT THE PASSAGE OF TIME HAS HEIGHTENED RATHER THAN
WEAKENED THE ATTEMPTS TO MITIGATE THE DISPARATE TREATMENT OF INDIGENTS
IN THE CRIMINAL PROCESS.  /17/  APPLYING THE TEACHING OF THE GRIFFIN
CASE HERE, WE CONCLUDE THAT AN INDIGENT CRIMINAL DEFENDANT MAY NOT BE
IMPRISONED IN DEFAULT OF PAYMENT OF A FINE BEYOND THE MAXIMUM
AUTHORIZED BY THE STATUTE REGULATING THE SUBSTANTIVE OFFENSE. 

A STATE HAS WIDE LATITUDE IN FIXING THE PUNISHMENT FOR STATE
CRIMES.  THUS, APPELLANT DOES NOT ASSERT THAT ILLINOIS COULD NOT HAVE
APPROPRIATELY FIXED THE PENALTY, IN THE FIRST INSTANCE, AT ONE YEAR AND
101 DAYS.  NOR HAS THE CLAIM BEEN ADVANCED THAT THE SENTENCE IMPOSED
WAS EXCESSIVE IN LIGHT OF THE CIRCUMSTANCES OF THE COMMISSION OF THIS
PARTICULAR OFFENSE.  HOWEVER, ONCE THE STATE HAS DEFINED THE OUTER
LIMITS OF INCARCERATION NECESSARY TO SATISFY ITS PENOLOGICAL INTERESTS
AND POLICIES, IT MAY NOT THEN SUBJECT A CERTAIN CLASS OF CONVICTED
DEFENDANTS TO A PERIOD OF IMPRISONMENT BEYOND THE STATUTORY MAXIMUM
SOLELY BY REASON OF THEIR INDIGENCY. 

IT IS CLEAR, OF COURSE, THAT THE SENTENCE WAS NOT IMPOSED UPON
APPELLANT BECAUSE OF HIS INDIGENCY BUT BECAUSE HE HAD COMMITTED A
CRIME.  AND THE ILLINOIS STATUTORY SCHEME DOES NOT DISTINGUISH BETWEEN
DEFENDANTS ON THE BASIS OF ABILITY TO PAY FINES.  BUT, AS WE SAID IN
GRIFFIN V. ILLINOIS, SUPRA, "A LAW NONDISCRIMINATORY ON ITS FACE MAY BE
GROSSLY DISCRIMINATORY IN ITS OPERATION."  ID., AT 17 N. 11.  HERE THE
ILLINOIS STATUTE AS APPLIED TO WILLIAMS WORKS AN INVIDIOUS
DISCRIMINATION SOLELY BECAUSE HE IS UNABLE TO PAY THE FINE.  ON ITS
FACE THE STATUTE EXTENDS TO ALL DEFENDANTS AN APPARENTLY EQUAL
OPPORTUNITY FOR LIMITING CONFINEMENT TO THE STATUTORY MAXIMUM SIMPLY BY
SATISFYING A MONEY JUDGMENT.  IN FACT, THIS IS AN ILLUSORY CHOICE FOR
WILLIAMS OR ANY INDIGENT WHO, BY DEFINITION, IS WITHOUT FUNDS.  /18/
SINCE ONLY A CONVICTED PERSON WITH ACCESS TO FUNDS CAN AVOID THE
INCREASED IMPRISONMENT, THE ILLINOIS STATUTE IN OPERATIVE EFFECT
EXPOSES ONLY INDIGENTS TO THE RISK OF IMPRISONMENT BEYOND THE STATUTORY
MAXIMUM.  BY MAKING THE MAXIMUM CONFINEMENT CONTINGENT UPON ONE'S
ABILITY TO PAY, THE STATE HAS VISITED DIFFERENT CONSEQUENCES ON TWO
CATEGORIES OF PERSONS SINCE THE RESULT IS TO MAKE INCARCERATION IN
EXCESS OF THE STATUTORY MAXIMUM APPLICABLE ONLY TO THOSE WITHOUT THE
REQUISITE RESOURCES TO SATISFY THE MONEY PORTION OF THE JUDGMENT. 
/19/ 

THE MERE FACT THAT AN INDIGENT IN A PARTICULAR CASE MAY BE
IMPRISONED FOR A LONGER TIME THAN A NON-INDIGENT CONVICTED OF THE SAME
OFFENSE DOES NOT, OF COURSE, GIVE RISE TO A VIOLATION OF THE EQUAL
PROTECTION CLAUSE.  SENTENCING JUDGES ARE VESTED WITH WIDE DISCRETION
IN THE EXCEEDINGLY DIFFICULT TASK OF DETERMINING THE APPROPRIATE
PUNISHMENT IN THE COUNTLESS VARIETY OF SITUATIONS THAT APPEAR.  THE
CONSTITUTION PERMITS QUALITATIVE DIFFERENCES IN METING OUT PUNISHMENT
AND THERE IS NO REQUIREMENT THAT TWO PERSONS CONVICTED OF THE SAME
OFFENSE RECEIVE IDENTICAL SENTENCES.  THUS IT WAS THAT IN WILLIAMS V.
NEW YORK, 337 U.S. 241, 247 (1949), WE SAID:  "THE BELIEF NO LONGER
PREVAILS THAT EVERY OFFENSE IS A LIKE LEGAL CATEGORY CALLS FOR AN
IDENTICAL PUNISHMENT WITHOUT REGARD TO THE PAST LIFE AND HABITS OF A
PARTICULAR OFFENDER." 

NOTHING IN TODAY'S DECISION CURTAILS THE SENTENCING PREROGATIVE OF A
JUDGE BECAUSE, AS NOTED PREVIOUSLY, THE SOVEREIGN'S PURPOSE IN
CONFINING AN INDIGENT BEYOND THE STATUTORY MAXIMUM IS TO PROVIDE A
COERCIVE MEANS OF COLLECTING OR "WORKING OUT" A FINE.  AFTER HAVING
TAKEN INTO CONSIDERATION THE WIDE RANGE OF FACTORS UNDERLYING THE
EXERCISE OF HIS SENTENCING FUNCTION, NOTHING WE NOW HOLD PRECLUDES A
JUDGE FROM IMPOSING ON AN INDIGENT, AS ON ANY DEFENDANT, THE MAXIMUM
PENALTY PRESCRIBED BY LAW. 

IT BEARS EMPHASIS THAT OUR HOLDING DOES NOT DEAL WITH A JUDGMENT OF
CONFINEMENT FOR NONPAYMENT OF A FINE IN THE FAMILIAR PATTERN OF
ALTERNATIVE SENTENCE OF $30 OR 30 DAYS."  WE HOLD ONLY THAT A STATE MAY
NOT CONSTITUTIONALLY IMPRISON BEYOND THE MAXIMUM DURATION FIXED BY
STATUTE A DEFENDANT WHO IS FINANCIALLY UNABLE TO PAY A FINE.  A STATUTE
PERMITTING A SENTENCE OF BOTH IMPRISONMENT AND FINE CANNOT BE PARLAYED
INTO A LONGER TERM OF IMPRISONMENT THAN IS FIXED BY THE STATUTE SINCE
TO DO SO WOULD BE TO ACCOMPLISH INDIRECTLY AS TO AN INDIGENT THAT WHICH
CANNOT BE DONE DIRECTLY.  WE HAVE NO OCCASION TO REACH THE QUESTION
WHETHER A STATE IS PRECLUDED IN ANY OTHER CIRCUMSTANCES FROM HOLDING AN
INDIGENT ACCOUNTABLE FOR A FINE BY USE OF A PENAL SANCTION.  WE HOLD
ONLY THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES THAT THE STATUTORY CEILING PLACED ON IMPRISONMENT FOR ANY
SUBSTANTIVE OFFENSE BE THE SAME FOR ALL DEFENDANTS IRRESPECTIVE OF
THEIR ECONOMIC STATUS.  /20/ 

THE STATE IS NOT POWERLESS TO ENFORCE JUDGMENTS AGAINST THOSE
FINANCIALLY UNABLE TO PAY A FINE; INDEED, A DIFFERENT RESULT WOULD
AMOUNT TO INVERSE DISCRIMINATION SINCE IT WOULD ENABLE AN INDIGENT TO
AVOID BOTH THE FINE AND IMPRISONMENT FOR NONPAYMENT WHEREAS OTHER
DEFENDANTS MUST ALWAYS SUFFER ONE OR THE OTHER CONVICTION. 

IT IS UNNECESSARY FOR US TO CANVASS THE NUMEROUS ALTERNATIVES TO
WHICH THE STATE BY LEGISLATIVE ENACTMENT-- OR JUDGES WITHIN THE SCOPE
OF THEIR AUTHORITY-- MAY RESORT IN ORDER TO AVOID IMPRISONING AN
INDIGENT BYOND THE STATUTORY MAXIMUM FOR INVOLUNTARY NONPAYMENT OF A
FINE OR COURT COSTS.  APPELLANT HAS SUGGESTED SEVERAL PLANS, SOME OF
WHICH ARE ALREADY UTILIZED IN SOME STATES, WHILE OTHERS RESEMBLE THOSE
PROPOSED BY VARIOUS STUDIES.  /21/  THE STATE IS FREE TO CHOOSE FROM
AMONG THE VARIETY OF SOLUTIONS ALREADY PROPOSED AND, OF COURSE, IT MAY
DEVICE NEW ONES.  /22/ 

WE ARE NOT UNAWARE THAT TODAY'S HOLDING MAY PLACE A FURTHER BURDEN
ON STATES IN ADMINISTERING CRIMINAL JUSTICE.  PERHAPS A FAIRER AND MORE
ACCURATE STATEMENT WOULD BE THAT NEW CASES EXPOSE OLD INFIRMITIES WHICH
APATHY OR ABSENCE OF CHALLENGE HAS PERMITTED TO STAND.  BUT THE
CONSTITUTIONAL IMPERATIVES OF THE EQUAL PROTECTION CLAUSE MUST HAVE
PRIORITY OVER THE COMFORTABLE CONVENIENCE OF THE STATUS QUO.  "ANY
SUPPOSED ADMINISTRATIVE INCONVENIENCE WOULD BE MINIMAL, SINCE . . .
(THE UNPAID PORTION OF THE JUDGMENT) COULD BE REACHED THROUGH THE
ORDINARY PROCESSES OF GARNISHMENT IN THE EVENT OF DEFAULT."  RINALDI V.
YEAGER, 384 U.S. 305, 310 (1966).     NOTHING WE HOLD TODAY LIMITS THE
POWER OF THE SENTENCING JUDGE TO IMPOSE ALTERNATIVE SANCTIONS PERMITTED
BY ILLINOIS LAW; THE DEFINITION OF SUCH ALTERNATIVES, IF ANY, LIES WITH
THE ILLINOIS COURTS.  WE THEREFORE VACATE THE JUDGMENT APPEALED FROM
AND REMAND TO THE SUPREME COURT OF ILLINOIS FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  396 U.S. 1036. 

/2/  ILL. REV. STAT., C. 38, SEC. 16-1 (1967), WHICH PROSCRIBES
THEFT OF PROPERTY NOT FROM THE PERSON AND NOT EXCEEDING $150 IN VALUE. 

/3/  SECTION 1-7(K) OF THE CRIMINAL CODE OF 1961 PROVIDES: 

"WORKING OUT FINES. 

"A JUDGMENT OF A FINE IMPOSED UPON AN OFFENDER MAY BE ENFORCED IN
THE SAME MANNER AS A JUDGMENT ENTERED IN A CIVIL ACTION; PROVIDED,
HOWEVER, THAT IN SUCH JUDGMENT IMPOSING THE FINE THE COURT MAY FURTHER
ORDER THAT UPON NON-PAYMENT OF SUCH FINE, THE OFFENDER MAY BE
IMPRISONED UNTIL THE FINE IS PAID, OR SATISFIED AT THE RATE OF $5.00
PER DAY OF IMPRISONMENT; PROVIDED, FURTHER, HOWEVER, THAT NO PERSON
SHALL BE IMPRISONED UNDER THE FIRST PROVISO HEREOF FOR A LONGER PERIOD
THAN 6 MONTHS." 

/4/  THE POST-CONVICTION PETITION WAS FILED PURSUANT TO SEC. 72 OF
THE ILLINOIS CIVIL PRACTICE ACT. 

/5/  PARENTHETICALLY WE NOTE THAT APPELLANT WAS UNABLE TO POST
PRETRIAL BAIL OF $2,000 AND WAS THEREFORE REQUIRED TO REMAIN IN
CUSTODY. 

ON MAY 23, 1968, APPELLANT COMPLETED SERVICE OF HIS ONE YEAR
SENTENCE, LESS TIME OFF FOR TIME SPENT IN CUSTODY PRIOR TO TRIAL.  HE
THEN BEGIN SERVING THE PERIOD OF INCARCERATION REQUIRED TO SATISFY THE
$505 FINE AND COSTS.  ON MAY 28, 1968, HOWEVER, THE SUPREME COURT OF
ILLINOIS, ON MOTION OF APPELLANT'S COUNSEL, SET BAIL PENDING APPEAL AT
$500; THE 10% DEPOSIT WAS POSTED BY THE CIVIL LEGAL AID SERVICE. 
APPELLANT IS FREE ON BOND, AND SINCE HE HAS NOT YET SERVED THE FULL
PERIOD OF INCARCERATION TO SATISFY THE FINE AND COSTS THE CASE IS NOT
MOOT. 

/6/  THE SUPREME COURT OF ILLINOIS DEALT EXCLUSIVELY WITH THAT
PORTION OF THE UNPAID SUM STEMMING FROM THE FINE.  ITS OPINION CONTAINS
NO DISCUSSION OF THE CONSTITUTINALITY OF INCARCERATION ARISING FROM
FAILURE TO PAY COURT COSTS EVEN THOUGH THE ISSUE WAS TENDERED. 

/7/  APPELLANT ALSO ARGUES THAT EVERY INSTANCE OF DEFAULT
IMPRISONMENT VIOLATES EITHER THE EQUAL PROTECTION AND/OR DUE PROCESS
CLAUSES) OF THE FOURTEENTH AMENDMENT.  HE ALSO ASSERTS THAT THE $5 PER
DIEM FIGURE IS UNREASONABLE AND IRRATIONAL. 

/8/  SEE N. 20, INFRA. 

/9/  SEE GENERALLY 2 W.HOLDSWORTH, A HISTORY OF ENGLISH LAW 43-44
(3D ED. 197); 1 J.BISHOP ON CRIMINAL LAW 940, P. 693 (9TH ED. 1923); 1
J.STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 57 (1883).  SEE
ALSO, COMMENT, FINES, IMPRISONMENT, AND THE POOR:  "THIRTY DOLLARS OR
THIRTY DAYS," 57 CALIF.L.REV.  778, 780-787 (1969). 

/10/  THE NATIONAL LEGAL AID AND DEFENDER ASSOCIATION, AS AMICUS
CURIAE, HAS FILED A BRIEF CONTAINING AN EXTENSIVE APPENDIX WHICH
INCLUDES STATE STATUTES WITH HELPFUL ANNOTATIONS.  WE HAVE REPRODUCED
THIS PORTION OF ITS BRIEF AS AN APPENDIX TO THIS OPINION.  THE
CORRESPONDING FEDERAL STATUTES ARE 18 U.S.C. 3565, 3569.  SEE ALSO
NOTE, THE EQUAL PROTECTION CLAUSE AND IMPRISONMENT OF THE INDIGENT FOR
NONPAYMENT OF FINES, 64 MICH.L.REV.  938 (1966). 

/11/  SEE WALZ V. TAX COMM'N, DECIDED MAY 4, 1970, 397 U.S. 664,
678, WHERE WE NOTED THAT, "NEARLY 50 YEARS AGO MR. JUSTICE HOLMES
STATED: 

"'IF A THING HAS BEEN PRACTISED FOR TWO HUNDRED YEARS BY COMMON
CONSENT, IT WILL NEED A STRONG CASE FOR THE FOURTEENTH AMENDMENT TO
AFFECT IT . . . .'  JACKMAN V. ROSENBAUM CO., 260 U.S. 22, 31 (1922)." 

/12/  WE NOTE, HOWEVER, THAT NEITHER IN THOSE CASES, NOR AT ANY
OTHER TIME, WERE THE CONSTITUTIONAL ISSUES FLOWING FROM LACK OF FUNDS
PRESENTED TO THIS COURT FOR RESOLUTION. 

/13/  SEE, E.G., AMERICAN BAR FOUNDATION, L. SILVERSTEIN, DEFENSE OF
THE POOR IN CRIMINAL CASES IN AMERICAN STATE COURTS 123 (1965); S.
RUBIN, THE LAW OF CRIMINAL CORRECTION 253 (1963). 

/14/ SEE, E.G., CHIEF JUDGE DESMOND'S EXCELLENT TREATMENT OF THE
HISTORICAL DEVELOPMENT IN PEOPLE V. SAFFORE, 18 N.Y.2D 101, 218 N.E.2D
686 (1966). 

/15/  SEE, E.G., PEEPLES V. DISTRICT OF COLUMBIA, 75 A.2D 845, 847
(C.D. MUN.  CT. APP. 1950). 

/16/  SEE NOTE, DISCRIMINATIONS AGAINST THE POOR AND THE FOURTEENTH
AMENDMENT, 81 HARV.L.REV.  435 (1967). 

/17/  SEE, E.G., RINALDI V. YEAGER, 384 U.S. 305 (1966); DOUGLAS V.
CALIFORNIA, 372 U.S. 353 (1963); SMITH V. BENNETT, 365 U.S. 708
(1961). 

/18/  SEE, E.G., GOLDBERG, EQUALITY AND GOVERNMENTAL ACTION, 39
N.Y.U.L.REV.  205, 221 (1964). 

/19/  WE WISH TO MAKE CLEAR THAT NOTHING IN OUR DECISION TODAY
PRECLUDES IMPRISONMENT FOR WILLFUL REFUSAL TO PAY A FINE OR COURT
COSTS.  SEE EX PARTE SMITH, 97 UTAH 280, 92 P.2D 1098 (1939).  CF.
ILLINOIS V. ALLEN, 397 U.S. 337 (1970). 

/20/  WHAT WE HAVE SAID REGARDING IMPRISONMENT FOR INVOLUNTARY
NONPAYMENT OF FINES APPLIES WITH EQUAL FORCE TO IMPRISONMENT FOR
INVOLUNTARY NONPAYMENT OF COURT COSTS.  ALTHOUGH THE ACTUAL AMOUNTS
PRESCRIBED FOR FINES AND COURT COSTS REFLECT QUITE DIFFERENT
CONSIDERATIONS, SEE GENERALLY NOTE, LITIGATION COSTS:  THE HIDDEN
BARRIER TO THE INDIGENT, 56 GEO.L.J. 516 (1968), THE PURPOSE OF
INCARCERATION APPEARS TO BE THE SAME IN BOTH INSTANCES:  ENSURING
COMPLIANCE WITH A JUDGMENT.  THUS INABILITY TO PAY COURT COSTS CANNOT
JUSTIFY IMPRISONING AN INDIGENT BEYOND THE MAXIMUM STATUTORY TERM SINCE
THE EQUAL PROTECTION CLAUSE PROHIBITS EXPANDING THE MAXIMUM TERM
SPECIFIED BY THE STATUTE SIMPLY BECAUSE OF INABILITY TO PAY. 

/21/  APPELLANT HAS SUGGESTED THAT THE FINE AND COSTS COULD BE
COLLECTED THROUGH AN INSTALLMENT PLAN AS IS CURRENTLY USED IN SEVERAL
STATES.  E.G., CAL. PENAL CODE SEC. 1205; MICH. COMP. LAWS, SEC. 769.3
(1948); PA. STAT. ANN., TIT. 19, SECS. 953-956 (1964).  SEE ALSO
AMERICAN BAR ASSOCIATION PROJECT, STANDARDS FOR CRIMINAL JUSTICE,
SENTENCING ALTERNATIVES AND PROCEDURES SEC. 2.7(B), PP. 117-123
(APPROVED DRAFT 1968). 

APPELLANT ALSO SUGGESTS THAT THE TRIAL JUDGE COULD IMPOSE A PAROLE
REQUIREMENT ON AN INDIGENT THAT HE DO SPECIFIED WORK DURING THE DAY TO
SATISFY THE FINE.  CF. 50 U.S.C. APP. 456. 

SEE ALSO MODEL PENAL CODE SEC. 7.02(3)(A) (PROPOSED OFFICIAL DRAFT
1962). 

/22/  CF. UNITED STATES V. WADE, 388 U.S. 218, 239 (1967). 

   APPENDIX TO OPINION OF THE COURT  /1/

         STATE STATUTORY PROVISIONS CONCERNING INCARCERATION FOR

           FAILURE TO PAY FINE

        ALABAMA 

IF THE FINE IS NOT PAID DEFENDANT IS IMPRISONED IN THE COUNTY JAIL,
POSSIBLE AT HARD LABOR.  THE STATUTE IS SO WORDED THAT DEFENDANTS WHO
HAVE BEEN FINED DIFFERING AMOUNTS MAY BE IMPRISONED FOR THE SAME AMOUNT
OF TIME IN SATISFACTION OF THE FINE.  THERE IS NO PROVISION IN THE
STATUTE FOR PAYMENT BY INSTALLMENT.  ALA. CODE TIT. 15, SEC. 341
(1958). 

        ALASKA 

THE JUDGMENT THAT DEFENDANT PAY A FINE SHALL ALSO DIRECT
IMPRISONMENT UNTIL THE FINE IS SATISFIED.  RATE OF CREDIT:  $5 PER DAY
(ADDITIONAL $5 IF PRISONER WORKS.)  ALAS.  STAT. SEC. 12.55.010
(1962). 

WHEN AN INDIGENT DEFENDANT HAS BEEN CONFINED IN PRISON 30 DAYS
SOLELY FOR THE NONPAYMENT OF THE FINE, THE DEFENDANT MAY PETITION THE
MAGISTRATE FOR DISCHARGE IF CERTAIN CONDITIONS ARE MET.  ID.
12.55.030. 

        ARIZONA 

THE SENTENCE OF FINE MAY ALSO DIRECT THAT DEFENDANT BE IMPRISONED
UNTIL THE FINE IS SATISFIED, BUT THE IMPRISONMENT SHALL NOT EXTEND
BEYOND THE TERM FOR WHICH DEFENDANT MIGHT BE SENTENCED TO IMPRISONMENT
FOR THE OFFENSE OF WHICH HE HAS BEEN CONVICTED.  RATE OF CREDIT:  $1
PER DAY.  ARIZ. REV. ANN. SEC. 13-1648 (1956). 

        ARKANSAS 

IF THE PUNISHMENT OF AN OFFENSE IS A FINE, THE JUDGMENT SHALL DIRECT
THAT DEFENDANT BE IMPRISONED UNTIL FINE AND COSTS ARE PAID.  RATE OF
CREDIT:  $1 PER DAY.  ARK. STAT. ANN. SEC. 43-2315 (1964). 

SPECIFICALLY APPLYING TO CONVICTIONS OF MISDEMEANOR AND ALSO
PROVIDING FOR IMPRISONMENT AT THE RATE OF $1 PER DAY.  ID. SEC. 46
510. 

PROVIDING THAT CONFINEMENT SHALL NOT DISCHARGE THE FINE WHICH CAN
ONLY BE COLLECTED BY PROCEEDING AGAINST THE DEFENDANT'S PROPERTY.  ID.
SEC. 43-2606. 

        CALIFORNIA 

JUDGMENT THAT DEFENDANT PAY A FINE MAY ALSO DIRECT THAT HE BE
IMPRISONED UNTIL THE FINE IS SATISFIED.  RATE OF CREDIT:  NOT LESS THAN
$2 PER DAY.  WHEN DEFENDANT IS CONVICTED OF A MISDEMEANOR, THE JUDGMENT
MAY PROVIDE FOR PAYMENT OF THE FINE IN INSTALLMENTS WITH IMPRISONMENT
IN THE EVENT OF DEFAULT.  CAL. PEN.  CODE SEC. 1205 (1968). 

BUT IMPRISONMENT FOR NONPAYMENT OF A FINE MAY NOT EXCEED IN ANY CASE
THE TERM FOR WHICH THE DEFENDANT MIGHT BE SENTENCED FOR THE OFFENSE OF
WHICH HE HAS BEEN CONVICTED.  ID.

      COLORADO 

COURT SHALL HAVE POWER AS PART OF ITS JUDGMENT TO ORDER THAT THE
OFFENDER BE COMMITTED TO JAIL UNTIL THE FINE IS PAID OR OTHERWISE
LEGALLY DISCHARGED.  COLO. REV. STAT. ANN. SEC. 39-10-10 (1964). 

PERSONS CONFINED IN JAIL FOR FINES WHO HAVE NO ESTATE WITH WHICH TO
PAY SUCH FINES MAY BE DISCHARGED FROM IMPRISONMENT.  ID. SEC. 39-10-9. 

        CONNECTICUT 

IF A CONVICT FAILS TO PAY A FINE LAWFULLY IMPOSED, HE SHALL BE
COMMITTED TO JAIL UNTIL THE FINE IS PAID.  CONN. GEN. STAT. ANN. SEC.
18-63 (1968). 

RATE OF CREDIT:  $3 PER DAY.  ID. SEC. 18-50. 

WHEN A PERSON IS CONVICTED OF A CRIME PUNISHABLE BY A FINE OR
IMPRISONMENT, THE COURT MAY IMPOSE UPON THE OFFENDER A CONDITIONAL
SENTENCE AND ORDER HIM TO PAY A FINE WITHIN A LIMITED TIME AND IN
DEFAULT OF SO DOING, TO BE IMPRISONED.  ID. SEC. 54-119. 

        DELAWARE 

WHEN A PERSON IS SENTENCED TO PAY A FINE, THE COURTS NAMED IN THIS
NONPAYMENT IS OTHERWISE FIXED BY LAW.  DEL CODE ANN. TIT. 11, SEC.
4103(A), (SUPP. 1968). 

IN THE SAME SITUATION, JUSTICES OF THE PEACE AND OTHER NAMED COURTS
MAY ORDER THE PERSON DEFAULTING IMPRISONED FOR NO LONGER THAN 90 DAYS. 
ID. TITL 11, SEC. 4103(B). 

        FLORIDA 

WHEN A COURT SENTENCES A PERSON TO PAY A FINE, THE COURT SHALL ALSO
PROVIDE IN THE SENTENCE A PERIOD OF TIME OF IMPRISONMENT IN CASE OF
DEFAULT.  FLA. STAT. ANN. SEC. 921.14 (SUPP. 1969). 

IN CASES OF CONVICTIONS FOR MISDEMEANOR, THE COURT MAY ORDER THE
DEFENDANT TO SERVE NOT EXCEEDING SIXTY DAYS IN DEFAULT OF PAYMENT OF A
FINE.  ID. SEC. 775.07. 

RATE OF CREDIT:  ID. SEC. 951.16. 

  GEORGIA 

FINES IMPOSED BY THE COURT SHALL BE PAID IMMEDIATELY OR WITHIN SUCH
REASONABLE TIME AS THE COURT MAY GRANT.  GA. CODE ANN. SEC. 27-2901
(1969 SUPP.). 

JUDGE MAY PROVIDE AS A MEANS OF ENFORICNG PAYMENT OF A FINE THAT THE
DEFENDANT BE IMPRISONED UNTIL THE FINE IS PAID.  R. E. LEE V. STATE,
118 S.E.2D 599 (1961). 

        HAWAII 

WHEN A JUDGMENT TO PAY A FINE IS NOT SATISFIED BY IMMEDIATE PAYMENT,
THE OFFENDER SHALL BE COMMITTED TO PRISON UNTIL THE JUDGMENT IS
SATISFIED.  HAWAII REV. STAT. SEC. 712-4 (1968). 

A POOR PERSON, AFTER HAVING BEEN CONFINED FOR THIRTY DAYS, SOLELY
FOR THE NONPAYMENT OF A FINE, MAY MAKE APPLICATION TO THE CIRCUIT COURT
FOR THE CIRCUIT IN WHICH HE IS IMPRISONED FOR RELEASE.  THE PERSON MAY
THEN BE DISCHARGED UPON THE TAKING OF AN OATH.  ID.

IDAHO 

A JUDGMENT THAT DEFENDANT PAY A FINE MAY ALSO DIRECT THAT THE
DEFENDANT BE IMPRISONED UNTIL THE FINE HAS BEEN SATISFIED.  RATE OF
CREDIT:  $5 PER DAY.  IDAHO CODE ANN. SEC. 19-2517 (1969 SUPP.). 

SUBSTANTIALLY THE SAME IS PROVIDED, FOR BOTH FELONIES AND
MISDEMEANORS, BY ID. SEC. 18-303. 

 ILLINOIS 

IN A JUDGMENT IMPOSING A FINE, THE COURT MAY ORDER THAT UPON
NONPAYMENT OF THE FINE THE OFFENDER MAY BE IMPRISONED.  RATE OF CREDIT:
$5 PER DAY.  BUT NO PERSON MAY BE IMPRISONED IN THIS FASHION FOR
LONGER THAN SIX MONTHS.  ILL. REV. STAT. (1969) CH. 38, SEC. 1-7(K). 

IF A PERSON CONFINED IN JAIL FOR FAILURE TO PAY A FINE HAS NO ESTATE
WITH WHICH TO PAY THE FINE, THE COURT MAY RELEASE THAT PERSON.  ID. CH.
38, SEC. 180-6. 

        INDIANA 

WHENEVER A PERSON IS FINED FOR A FELONY OR A MISDEMEANOR, THE
JUDGMENT SHALL BE THAT HE IS COMMITTED UNTIL THE FINE IS PAID.  IND.
ANN. STAT. SEC. 9-2228 (1956). 

RATE OF CREDIT:  $5 PER DAY.  ID. SEC. 9-227A (SUPP. 1969). 

        IOWA 

THE JUDGMENT THAT DEFENDANT PAY A FINE MAY ALSO DIRECT THAT HE BE
IMPRISONED UNTIL THE FINE IS SATISFIED.  IOWA CODE ANN. SEC. 762.32
(1950). 

RATE OF CREDIT:  $3 1/3 PER DAY.  ID. SEC. 789.17. 

        KANSAS 

DEFENDANT TO BE ORDERED COMMITTED TO COUNTY JAIL UNTIL FINE IS
PAID.  KAN. GEN. STAT. ANN. SEC. 62-1513 (1964). 

RATE OF CREDIT:  $2 PER DAY.  ID SEC. 62-2109. 

A PERSON IMPRISONED FOR FAILURE TO PAY A FINE MAY BE DISCHARGED FROM
IMPRISONMENT IF FOUND TO BE UNABLE TO PAY.  ID. SEC. 62-1515. 

 KENTUCKY 

JUDGMENT SHALL BE RENDERED DIRECTING THAT THE DEFENDANT SHALL WORK
AT HARD LABOR UNTIL THE FINE AND COSTS ARE SATISFIED.  KY. REV. STAT.
SEC. 431.140 (1969). 

RATE OF CREDIT:  $2 PER DAY.  ID.

        LOUISIANA 

IF A FINE IS IMPOSED, THE SENTENCE SHALL PROVIDE THAT IN DEFAULT THE
DEFENDANT SHALL BE IMPRISONED FOR A SPECIFIED PERIOD NOT TO EXCEED ONE
YEAR.  BUT: WHERE THE MAXIMUM PRISON SENTENCE WHICH MAY BE IMPOSED AS A
PENALTY FOR A MISDEMEANOR IS SIX MONTHS OR LESS, THE TOTAL PERIOD OF
IMPRISONMENT UPON CONVICTION OF THE OFFENSE, INCLUDING IMPRISONMENT FOR
DEFAULT, SHALL NOT EXCEED SIX MONTHS FOR THAT OFFENSE.  LA. CRIM. PRO.
CODE ANN. ART. 884 (1970 POCKET PART). 

        MAINE 

CONVICT SENTENCED TO PAY FINE MAY BE COMMITTED OR CONFINED FOR
DEFAULT THEREOF, BUT NOT LONGER THAN 11 MONTHS FOR ANY SINGLE FILE. 
ME. REV. STAT. ANN. TIT. 15, SEC. 1904 (SUPP. 1970). 

RATE OF CREDIT:  $5 PER DAY.  ID.

        MARYLAND 

IN DEFAULT OF PAYMENT OF A FINE, A PERSON ADJUDGED GUILTY SHALL BE
COMMITTED TO JAIL UNTIL DISCHARGED BY DUE COURSE OF LAW.  MD. ANN. CODE
ART. 38, SEC. 1 (1965). 

(THIS PROVISION HAS BEEN AMENDED BY CHAPTER 147 OF THE 1970 LAWS OF
MARYLAND (APPROVED APRIL 15, 1970).  SEE MORRIS V. SCHOONFIELD, POST,
P. 508.) 

INSTALLMENT PAYMENTS IN SOME COUNTIES ARE PROVIDED FOR.  ID. ART.
52, SEC. 18 (1969 SUPP.). 

RATE OF CREDIT:  $2 PER DAY (WITH SOME MODIFICATIONS RESULTING IN
SHORTER PERIOD OF CONFINEMENT IN SOME CASES THAN WOULD RESULT AT $2 PER
DAY).  ID. ART. 38, SEC. 4 (1969 SUPP.). 

        MASSACHUSETTS 

WHEN A PERSON CONVICTED IS SENTENCED TO PAY A FINE, HE MAY ALSO BE
SENTENCED TO BE COMMITTED UNTIL IT IS PAID.  MASS. ANN. LAWS, CH. 279,
SEC. 1; CH. 127, SEC. 144 (1969). 

RATE OF CREDIT:  $1 PER DAY.  ID. CH. 127, SEC. 144. 

THE EXECUTION OF THE SENTENCE OF CONFINEMENT MAY BE SUSPENDED AND
THE DEFENDANT PLACED ON PROBATION ON CONDITION THAT HE PAY THE FINE
WITHIN A CERTAIN TIME, EITHER IN ONE PAYMENT OR IN INSTALLMENTS.  IN
CASE OF DEFAULT, THE COURT MAY REVOKE THE SUSPENSION OF THE EXECUTION
OF THE SENTENCE.  ID. CH. 279, SEC. 1. 

DISCHARGE OF POOR PRISONERS INCARCERATED FOR FAILURE TO PAY FINES. 
ID. CH. 127, SEC. 145, (WHEN FINE IS LESS THAN TEN DOLLARS); SEC. 146,
(WHEN THE PRISONER HAS BEEN CONFINED FOR THREE MONTHS). 

        MICHIGAN 

THE COURT MAY IMPOSE UPON THE OFFENDER A CONDITIONAL SENTENCE AND
ORDER HIM TO PAY A FINE WITHIN A LIMITED TIME AND IN DEFAULT OF SO
DOING TO BE IMPRISONED.  THE COURT MAY ALSO PLACE THE OFFENDER ON
PROBATION WITH A CONDITION THAT HE PAY A FINE IN INSTALLMENTS AND IN
DEFAULT OF SUCH PAYMENTS BE IMPRISONED.  MICH. COMP. LAWS ANN. SEC.
769.3 (1968). 

EXECUTION MAY ISSUE FOR THE COLLECTION OF FINES IN CASES WHERE NO
ALTERNATIVE SENTENCE OR JUDGMENT OF IMPRISONMENT HAS BEEN RENDERED, BUT
NO ONE MAY BE IMPRISONED UNDER SUCH EXECUTION FOR LONGER THAN 90 DAYS. 
ID. SEC. 600.4815. 

        MINNESOTA 

IF A DEFENDANT'S FINE EXCEEDS THE AMOUNT OF HIS BAIL, THE DEFENDANT
SHALL BE COMMITTED UNTIL THE BALANCE IS PAID.  MINN. STAT. ANN. SEC.
629.53 (1947). 

RATE OF CREDIT:  $3 PER DAY.  ID. SEC. 641.10 (SUPP. 1969). 

        MISSISSIPPI 

CONVICTS TO BE IMPRISONED UNTIL FINE IS FULLY PAID.  HOWEVER, NO
CONVICT MAY BE HELD FOR MORE THAN TWO YEARS FOR FAILURE TO PAY THE FINE
FOR ANY ONE OFFENSE.  MISS CODE ANN. SEC. 7899 (1957). 

RATE OF CREDIT:  $3 PER DAY.  ID. SEC. 7906. 

        MISSOURI 

WHEN A DEFENDANT IS SENTENCED TO PAY A FINE, HE SHALL BE IMPRISONED
UNTIL THE SENTENCE IS FULLY COMPLIED WITH.  MO. ANN. STAT. SEC. 546.830
(1953). 

THE JUDGE, ON PETITION OF THE PRISONER, MAY SENTENCE HIM TO
IMPRISONMENT FOR A LIMITED TIME IN LIEU OF THE FINE.  ID. SEC.
546.840. 

RATE OF CREDIT:  $2 PER DAY.  ID. SEC. 551.010. 

MAGISTRATES' COURTS HAVE SIMILAR POWERS BUT THE RATE OF CREDIT MAY
VARY FROM $2 TO $10 FOR EACH DAY OF CONFINEMENT.  ID. SECS. 543.260 AND
543.270. 

        MONTANA 

THE JUDGMENT MAY BE FOR FINE AND IMPRISONMENT UNTIL THE FINE IS
PAID.  MONT. REV. CODES ANN. SEC. 95-2302(B) (1969). 

RATE OF CREDIT:  $10 PER DAY.  ID.

        NEBRASKA 

IN CASES WHERE COURTS OR MAGISTRATES HAVE POWER TO SENTENCE AN
OFFENDER TO PAY A FINE, THOSE COURTS OR MAGISTRATES MAY MAKE IT A PART
OF THE SENTENCE THAT THE PARTY BE COMMITTED UNTIL THE FINE IS PAID. 
NEB. REV. STAT. SEC. 29-2206 (1965). 

RATE OF CREDIT:  $6 PER DAY.  ID. SEC. 29-2412. 

IN CASES OF MISDEMEANOR, OFFENDERS MAY BE COMMITTED TO THE COUNTY
JAIL UNTIL THE FINE IS PAID.  ID. SEC. 29-2404. 

        NEVADA 

A PERSON SENTENCED TO PAY A FINE MAY BE CONFINED UNTIL THE FINE IS
SATISFIED.  NEV. REV. STAT. SEC. 176.065 (1967). 

RATE OF CREDIT:  $4 PER DAY.  ID.

        NEW HAMPSHIRE 

A PERSON SENTENCED TO PAY A FINE SHALL BE ORDERED TO BE IMPRISONED
UNTIL SENTENCE IS PERFORMED.  N.H. REV. STAT. ANN. SEC. 618.6 (1969
SUPP.). 

RATE OF CREDIT:  $5 PER DAY.  ID. SEC. 618.9. 

        NEW JERSEY 

DEFENDANT MAY BE PLACED AT LABOR IN A COUNTY JAIL OR PENITENTIARY
UNTIL THE FINE IS PAID.  N.J. STAT. ANN. SEC. 2A:166-14 (1953). 

DEFENDANT MAY ALSO BE PERMITTED TO REMAIN AT LARGE FOR A FIXED TIME
TO ENABLE HIM TO PAY THE FINE.  IF DEFENDANT FAILS TO PAY, THE COURT
MAY THEN ORDER HIM INTO CUSTODY.  ID. SEC. 2A:166-15. 

RATE OF CREDIT:  $5 PER DAY.  ID. SEC. 2A:166-16 (SUPPL.  1969). 

A DISORDERLY PERSON WHO DEFAULTS IN THE PAYMENT OF A FINE MAY BE
COMMITTED BY THE COURT.  ID. SEC. 2A:169-5 (SUPP. 1969). 

        NEW MEXICO 

A PERSON MAY BE COMMITTED TO PRISON FOR NONPAYMENT OF A FINE.  N.M.
STAT. ANN. SEC. 42-2-9 (SUPP. 1969).  (APPLIES TO BOTH COUNTY JAILS AND
THE STATE PENITENTIARY-- COMPILER'S NOTE). 

RATE OF CREDIT:  $5 PER DAY.  ID. 

IF A PERSON SO CONFINED MAKES AN AFFIDAVIT THAT HE HAS NO PROPERTY
OUT OF WHICH TO PAY THE FINE, HE MUST BE RELEASED AFTER THREE MONTHS OF
CONFINEMENT.  ID. SUB. B. 

BUT CONVICTS SENTENCED TO THE STATE PENITENTIARY MAY NOT BE REQUIRED
TO SERVE MORE THAN THIRTY DAYS FOR A FINE.  ID. SEC. 42-1-60 (1964). 

        NEW YORK 

IN THE EVENT THE DEFENDANT FAILS TO PAY A FINE AS DIRECTED, THE
COURT MAY DIRECT THAT HE BE IMPRISONED UNTIL THE FINE IS SATISFIED
(LIMITATIONS:  FOR A FELONY, THE IMPRISONMENT MAY NOT EXCEED ONE YEAR;
FOR A MISDEMEANOR, IT MAY NOT EXCEED ONE THIRD OF THE MAXIMUM
AUTHORIZED SENTENCE.)  N.Y. CODE CRIM. PROC. SEC. 470-D (SUPP. 1969). 

SEC. 470-D HAS BEEN LIMITED BY PEOPLE V. SAFFORE, 18 N.Y.2D 101, 218
N.E.2D 686 (1966). 

       NORTH CAROLINA 

IF A GUILTY PARTY IS SENTENCED TO PAY A FINE AND IT IS NOT
IMMEDIATELY PAID, THE GUILTY PERSON MAY BE COMMITTED TO THE COUNTY JAIL
UNTIL THE FINE IS PAID.  N.C. GEN. STAT. SEC. 6-65 (SUPP. 1970). 
PERSONS COMMITTED FOR FINES MAY BE DISCHARGED FROM IMPRISONMENT UPON
TAKING AN INSOLVENT DEBTOR'S OATH.  ID. SECS. 23-23 AND 23-24 (1965). 

        NORTH DAKOTA 

A JUDGMENT THAT THE DEFENDANT PAY A FINE ALSO MAY DIRECT THAT HE BE
IMPRISONED UNTIL THE FINE IS SATISFIED.  N.D. CENT. CODE SEC. 29-26-21
(1960). 

RATE OF CREDIT:  $2 PER DAY (BUT SUCH IMPRISONMENT DOES NOT
DISCHARGE THE JUDGMENT FOR THE FINE.)  ID.

OHIO     WHEN A FINE IS THE WHOLE OR PART OF A SENTENCE, THE COURT OR
MAGISTRATE MAY ORDER THAT THE PERSON SENTENCED REMAIN IN JAIL UNTIL THE
FINE IS PAID BUT NO COMMITTMENT MAY EXCEED SIX MONTHS.  OHIO REV. CODE
ANN. SEC. 2947.14 (1954). 

RATE OF CREDIT:  $3 PER DAY.  ID. 

IN A CASE OF CONVICTION FOR A MISDEMEANOR, THE JUDGE OR MAGISTRATE
HAS THE SAME POWER AS ABOVE, BUT THERE IS NO LIMIT OF SIX MONTHS.  ID.
SEC. 2947.20. 

      OKLAHOMA 

PERSONS SENTENCED TO PAY A FINE WHO REFUSE OR FAIL TO PAY IT, MAY BE
IMPRISONED.  OKLA. STAT. TIT. 11, SEC. 794 (SUPP. 1969). 

RATE OF CREDIT:  $2 PER DAY.  ID. 

A POOR CONVICT WHO HAS BEEN IMPRISONED FOR NONPAYMENT OF A FINE MAY
BE DISCHARGED AFTER SERVING SIX MONTHS IF TWO JUSTICES OF THE PEACE ARE
SATISFIED THAT THE CONVICT HAS NOT HAD SINCE HIS CONVICTION ANY ESTATE
WITH WHICH HE MIGHT HAVE PAID THE FINE.  ID. TIT. 57, SEC. 15 (1969). 

        OREGON 

A JUDGMENT THAT THE DEFENDANT PAY A FINE SHALL ALSO DIRECT THAT HE
BE IMPRISONED IN THE COUNTY JAIL UNTIL THE FINE IS SATISFIED.  ORE. 
REV. STAT. SEC. 137.150 (1963). 

RATE OF CREDIT:  $5 PER DAY.  ID. 

INDIGENTS IMPRISONED FOR NONPAYMENT OF FINE MAY BE DISCHARGED AFTER
SERVING THIRTY DAYS SOLELY FOR SUCH NONPAYMENT IF IN THE OPINION OF A
MAGISTRATE OR COURT IT APPEARS THAT THE PRISONER IS UNABLE TO PAY THE
FINE.  ORE.  REV. STAT. SEC. 169.160 (1967). 

        PENNSYLVANIA 

PERSONS MAY BE IMPRISONED IN AN ACTION FOR FINES OR PENALTIES.  PA.
STAT. ANN. TIT. 12 SEC. 257 (1953).  A PERSON CONFINED FOR NONPAYMENT
OF A FINE MAY BE DISCHARGED IF HE CONFORMS TO THE PROVISIONS FOR
INSOLVENT DEBTORS, BUT NO APPLICATION IS ALLOWED UNTIL THE PRISONER HAS
SERVED AT LEAST THREE MONTHS.  ID. TIT. 39, SEC. 323 (1954). 

THE SENTENCING AUTHORITY MAY ALLOW PAYMENT OF A FINE BY
INSTALLMENTS, BUT UPON DEFAULT THE DEFENDANT MAY BE COMMITTED.  ID.
TIT. 19, SECS. 953 AND 956 (1964). 

        RHODE ISLAND 

PERSONS MAY BE COMMITTED TO THE ADULT CORRECTIONAL INSTITUTIONS FOR
THE NONPAYMENT OF FINES.  R.I. GEN. LAWS ANN. SEC. 13-2-36 (1957). 

RATE OF CREDIT:  $5 PER DAY.  ID. 

THE DIRECTOR OF SOCIAL WELFARE MAY RECOMMEND THE RELEASE OF PERSONS
SO CONFINED, BUT NO GUIDELINES ARE SET OUT IN THE STATUTE.  ID.

        SOUTH CAROLINA 

OFFENDERS MAY BE COMMITTED TO JAIL, IF THEY ARE UNABLE TO PAY
FORFEITURES, UNTIL THE AMOUNT IS SATISFIED.  S.C. CODE ANN. SEC. 17-574
(1962). 

OFFENDERS SO COMMITTED ARE ENTITLED TO THE PRIVILEGE OF INSOLVENT
DEBTORS.  ID. 

INSTALLMENT PAYMENTS AS A CONDITION OF PROBATION.  ID. SEC. 55-593. 

        SOUTH DAKOTA 

A JUDGMENT THAT THE OFFENDER PAY A FINE MAY ALSO DIRECT THAT HE BE
IMPRISONED UNTIL THE FINE IS SATISFIED.  S.D. COMP. LAWS ANN. SEC. 23
48-23 (1969). 

RATE OF CREDIT:  $2 PER DAY.  ID.

        TENNESSEE 

IF A FINE IS NOT PAID, THE DEFENDANT SHALL BE IMPRISONED UNTIL IT IS
PAID.  TENN. CODE ANN. SEC. 40-3203 (1955). 

RATE OF CREDIT:  $5 PER DAY.  ID SEC. 41-1223 (1956). 

        TEXAS 

WHEN A DEFENDANT CONVICTED OF A MISDEMEANOR IS UNABLE TO PAY THE
FINE ADJUDGED AGAINST HIM, HE MAY BE PUT TO WORK OR IMPRISONED FOR A
SUFFICIENT LENGTH OF TIME TO DISCHARGE THE AMOUNT.  TEX. CODE CRIM.
PROC. ART. 43.09 (1966). 

        UTAH 

A JUDGMENT THAT A DEFENDANT PAY A FINE MAY ALSO DIRECT THAT HE BE
IMPRISONED UNTIL THE FINE IS SATISFIED.  UTAH CODE ANN. SEC. 77-35-15
(1953). 

RATE OF CREDIT:  $2 PER DAY.  ID.

        VERMONT 

WHEN A PERSON IS SENTENCED TO IMPRISONMENT AND ALSO TO PAY A FINE,
THE COURT MAY ORDER HIM IMPRISONED FOR FAILURE TO PAY THE FINE, THE
TERM OF IMPRISONMENT TO BEGIN AT THE END OF THE TERM IN THE ORIGINAL
SENTENCE.  VT. STAT. ANN. TIT. 13, SEC. 7222 (SUPP. 1969). 

WHEN A PERSON IS SENTENCED ONLY TO PAY A FINE, THE COURT SHALL ORDER
THAT IF THE SENTENCE IS NOT COMPLIED WITH WITHIN TWENTY-FOUR HOURS THE
PERSON MAY BE IMPRISONED.  ID. SEC. 7223. 

RATE OF CREDIT:  $1 PER DAY.  ID. SECS. 7222 AND 7223. 

        VIRGINIA 

THE CIRCUIT OR CORPORATION COURT IN WHICH ANY JUDGMENT FOR A FINE IS
RENDERED MAY COMMIT THE DEFENDANT TO JAIL UNTIL THE FINE IS PAID.  VA.
CODE ANN. SEC. 19.1-339 (SUPP. 1968). 

IN ANY MISDEMEANOR CASE TRIED BEFORE A COURT NOT OF RECORD IN WHICH
A FINE IS IMPOSED ON A DEFENDANT, IF NO SECURITY IS GIVEN, THE
DEFENDANT MAY BE COMMITTED TO JAIL UNTIL THE FINE IS PAID.  ID. SEC.
19.1-338. 

        WASHINGTON 

IF A PERSON DOES NOT PAY THE FINE ADJUDGED AGAINST HIM WITHIN FIVE
DAYS, THAT PERSON MAY BE IMPRISONED IN THE COUNTY JAIL UNTIL THE FINE
IS PAID.  WASH. REV. CODE ANN. SEC. 10.82.030 (SUPP. 1969). 

INSTALLMENT PAYMENTS PERMITTED.  ID. (1961). 

        WEST VIRGINIA 

WHEN A JUDGMENT FOR A FINE IS RENDERED BY A COURT OF RECORD HAVING
JURISDICTION IN CRIMINAL CASES, THE COURT MAY ALSO PROVIDE, AS A PART
OF THE JUDGMENT, THAT THE DEFENDANT BE IMPRISONED UNTIL THE FINE IS
PAID.  W. VA. CODE ANN. SEC. 62-4-9 (1966). 

RATE OF CREDIT:  $1.50 PER DAY.  ID. SEC. 62-4-10. 

CONFINEMENT FOR FAILURE TO PAY A FINE SHALL NOT EXCEED THE TERM OF
SIX MONTHS.  ID.

WISCONSIN 

WHEN A FINE IS IMPOSED, THE COURT SHALL ALSO SENTENCE THE DEFENDANT
TO BE COMMITTED TO THE COUNTY JAIL UNTIL THE FINE AND COSTS ARE PAID OR
DISCHARGED.  WIS. STAT. ANN. SEC. 959.055 (SUPP. 1969). 

THE COURT MAY GRANT A REASONABLE TIME NOT EXCEEDING ONE STAY OF 30
DAYS BASED ON THE DEFENDANT'S CIRCUMSTANCES IN WHICH TO MAKE PAYMENT
BEFORE COMMITTING HIM TO THE COUNTY JAIL.  ID. 

THE TIME OF IMPRISONMENT, IN ADDITION TO ANY OTHER IMPRISONMENT,
SHALL NOT EXCEED SIX MONTHS.  ID. 

INSTALLMENT PAYMENTS PERMITTED.  ID. SEC. 57.04. 

    WYOMING 

ANY COURT SHALL HAVE POWER, IN CASES OF CONVICTION WHERE A FINE IS
INFLICTED, TO ORDER AS PART OF ITS JUDGMENT THAT THE OFFENDER SHALL BE
COMMITTED TO JAIL UNTIL THE FINE IS PAID OR OTHERWISE LEGALLY
DISCHARGED.  WYO. STAT. ANN. SEC. 7-280 (1959). 

RATE OF CREDIT:  $1 PER DAY.  ID. SEC. 6-8. 

/1/  (REPORTER'S NOTE:  THIS APPENDIX IS REPRODUCED IN VIRTUALLY THE
SAME FOR IN WHICH IT APPEARED IN THE BRIEF FILED BY THE NATIONAL LEGAL
AID AND DEFENDER ASSN. AS AMICUS CURIAE.  SEE SUPRA, AT 239 N. 10.  AND
CHANGES IN THE STATUTES LISTED HEREIN ARE NOT INDICATED, EXCEPT FOR THE
BRACKETED ENTRY APPLICABLE TO MARYLAND, INFRA, AT 251.) 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I CONCUR IN TODAY'S JUDGMENT, BUT IN DOING SO WISH TO DISSOCIATE
MYSELF FROM THE "EQUAL PROTECTION" RATIONALE EMPLOYED BY THE COURT TO
JUSTIFY ITS CONCLUSIONS. 

THE "EQUAL PROTECTION" ANALYSIS OF THE COURT IS, I SUBMIT, A "WOLF IN
SHEEP'S CLOTHING," FOR THAT RATIONALE IS NOT MORE THAN A MASQUERADE OF
A SUPPOSEDLY OBJECTIVE STANDARD FOR SUBJECTIVE JUDICIAL JUDGMENT AS TO
WHAT STATE LEGISLATION OFFENDS NOTIONS OF "FUNDAMENTAL FAIRNESS." 
UNDER THE RUBRIC OF "EQUAL PROTECTION" THIS COURT HAS IN RECENT TIMES
EFFECTIVELY SUBSTITUTED ITS OWN "ENLIGHTENED" SOCIAL PHILOSOPHY FOR
THAT OF THE LEGISLATURE NO LESS THAN DID IN THE OLDER DAYS THE JUDICIAL
ADHERENTS OF THE NOW DISCREDITED DOCTRINE OF "SUBSTANTIVE" DUE
PROCESS.  I, FOR ONE, WOULD PREFER TO JUDGE THE LEGISLATION BEFORE US
IN THIS CASE IN TERMS OF DUE PROCESS, THAT IS TO DETERMINE WHETHER IT
ARBITRARILY INFRINGES A CONSTITUTIONALLY PROTECTED INTEREST OF THIS
APPELLANT.  DUE PROCESS, AS I NOTED IN MY DISSENTING OPINION IN POE V.
ULLMAN, 367 U.S. 497, 541 (1961), IS MORE THAN MERELY A PROCEDURAL
SAFEGUARD; IT IS ALSO A "'BULWARK . . . AGAINST ARBITRARY
LEGISLATION.'  HURTADO V. CALIFORNIA, 110 U.S. 516, AT 532."  SEE
FLEMMING V. NESTOR, 363 U.S. 603 (1960), AND MY DISSENTING OPINION IN
SHAPIRO V. THOMPSON, 394 U.S. 618, 655 (1969). 

THE MATRIX OF RECENT "EQUAL PROTECTION" ANALYSIS IS THAT THE "RULE
THAT STATUTORY CLASSIFICATIONS WHICH EITHER ARE BASED UPON CERTAIN
'SUSPECT' CRITERIA OR AFFECT 'FUNDAMENTAL RIGHTS' WILL BE HELD TO DENY
EQUAL PROTECTION UNLESS JUSTIFIED BY A 'COMPELLING' GOVERNMENTAL
INTEREST," SHAPIRO V. THOMPSON, SUPRA, AT 658 (HARLAN, J.,
DISSENTING).  IN SHAPIRO, HARPER V. VIRGINIA BOARD OF ELECTIONS, 383
U.S. 663, 680 (1966), AND WILLIAMS V. RHODES, 393 U.S. 23, 41 (1968), I
ATTEMPTED TO EXPOSE THE WEAKNESS IN THE PRECEDENTIAL AND
JURISPRUDENTIAL FOUNDATION UPON WHICH THE CURRENT DOCTRINE OF "EQUAL
PROTECTION" SITS.  SEE ALSO GRIFFIN V. ILLINOIS, 351 U.S. 12, 34-36
(1956) (DISSENTING OPINION); DOUGLAS V. CALIFORNIA, 372 U.S. 353, 360
(1963) (DISSENTING OPINION).  I NEED NOT RETRACE THE VIEWS EXPRESSED IN
THESE CASES, EXCEPT TO OBJECT ONCE AGAIN TO THIS RHETORICAL
PREOCCUPATION WITH "EQUALIZING" RATHER THAN ANALYZING THE RATIONALITY
OF THE LEGISLATIVE DISTINCTION IN RELATION TO LEGISLATIVE PURPOSE. 

AN ANALYSIS UNDER DUE PROCESS STANDARDS, CORRECTLY UNDERSTOOD, IS,
IN MY VIEW, MORE CONDUCIVE TO JUDICIAL RESTRAINT THAT AN APPROACH
COUCHED IN SLOGANS AND RINGING PHRASES, SUCH AS "SUSPECT"
CLASSIFICATION OR "INVIDIOUS" DISTINCTIONS, OR "COMPELLING" STATE
INTEREST, THAT BLUE ANALYSIS BY SHIFTING THE FOCUS AWAY FROM THE NATURE
OF THE INDIVIDUAL INTEREST AFFECTED, THE EXTENT TO WHICH IT IS
AFFECTED, THE RATIONALITY OF THE CONNECTION BETWEEN LEGISLATIVE MEANS
AND PURPOSE, THE EXISTENCE OF ALTERNATIVE MEANS FOR EFFECTUATING THE
PURPOSE, AND THE DEGREE OF CONFIDENCE WE MAY HAVE THAT THE STATUTE
REFLECTS THE LEGISLATIVE CONCERN FOR THE PURPOSE THAT WOULD
LEGITIMATELY SUPPORT THE MEANS CHOSEN.  ACCORDINGLY, I TURN TO THE CASE
AT HAND. 

      I 

THE STATE OF ILLINOIS HAS MADE THE UNQUESTIONABLY LEGITIMATE
DETERMINATION THAT THE CRIME OF PETTY LARCENY SHOULD BE PUNISHED BY A
JAIL TERM OF DAYS, UP TO ONE YEAR, IN COMBINATION WITH A FINE OF A
DOLLAR AMOUNT.  ANYONE WHO, IN THE JUDGMENT OF THE TRIAL JUDGE, SHOULD
RECEIVE THE STIFFEST PENALTY KNOWN TO ILLINOIS LAW FOR THIS CRIME MAY,
IF HE POSSESSES FUNDS, SATISFY THE DEMANDS OF THE CRIMINAL LAW BY
PAYING THE FINE SUPERIMPOSED ON THE JAIL TERM.  IF HE CANNOT PAY HIS
DEBT TO SOCIETY, IT IS SURELY NOT UNEQUAL, BUT, TO THE CONTRARY, MOST
EQUAL, THAT SOME SUBSTITUTE SANCTION BE IMPOSED LEST THE INDIVIDUAL OF
MEANS BE SUBJECTED TO A HARSHER PENALTY THAN ONE WHO IS IMPOVERISHED. 
IF EQUAL PROTECTION IMPLICATIONS OF THE COURT'S OPINION WERE TO BE
FULLY REALIZED, IT WOULD REQUIRE THAT THE CONSEQUENCE OF PUNISHMENT BE
COMPARABLE FOR ALL INDIVIDUALS; THE STATE WOULD BE FORCED TO EMBARK ON
THE IMPOSSIBLE TASK OF DEVELOPING A SYSTEM OF INDIVIDUALIZED FINES, SO
THAT THE TOTAL DISUTILITY OF THE ENTIRE FINE, OR THE MARGINAL
DISUTILITY OF THE LAST DOLLAR TAKEN, WOULD BE THE SAME FOR ALL
INDIVIDUALS.  CF. MICHELMAN, FOREWORD:  ON PROTECTING THE POOR THROUGH
THE FOURTEENTH AMENDMENT, 83 HARV.L.REV.  7 (1969).  TODAY'S HOLDING,
AND THOSE IN THE OTHER SO-CALLED "EQUAL PROTECTION" DECISIONS, E.G.,
DOUGLAS V. CALIFORNIA, SUPRA; ANDERS V. CALIFORNIA, 386 U.S. 738
(1967), OFFER NO PRETENSE TO ACTUALLY PROVIDING SUCH EQUAL TREATMENT. 
IT CANNOT BE ARGUED THAT THE REQUIREMENT OF COUNSEL ON APPEAL IS THE
RIGHT TO THE MOST SKILLED ADVOCATE WHO IS THEORETICALLY AT THE CALL OF
THE DEFENDANT OF MEANS.  HOWEVER DESIRABLE AND ENLIGHTENED A THEORY OF
SOCIAL AND ECONOMIC EQUALITY MAY BE, IT IS NOT A THEORY THAT HAS THE
BLESSING OF THE FOURTEENTH AMENDMENT.  NOT "EVERY MAJOR SOCIAL ILL IN
THIS COUNTRY CAN FINE ITS CURE IN SOME CONSTITUTIONAL 'PRINCIPLE,' AND
. . . THIS COURT (IS NOT EQUIPPED TO) 'TAKE THE LEAD' IN PROMOTING
REFORM WHEN OTHER BRANCHES OF GOVERNMENT FAIL TO ACT.  THE CONSTITUTION
IS NOT A PANACEA FOR EVERY BLOT UPON THE PUBLIC WELFARE, NOR SHOULD
THIS COURT, ORDAINED AS A JUDICIAL BODY, BE THOUGHT OF AS A GENERAL
HAVEN FOR REFORM MOVEMENTS."  REYNOLDS V. SIMS, 377 U.S. 533, 624-625
(1964) (DISSENTING OPINION). 

        II 

THE RELUCTANCE OF THE COURT TO CARRY ITS "EQUAL PROTECTION" APPROACH
TO ITS MOST LOGICAL CONSEQUENCES ACCENTS WHAT I DEEM TO BE THE TRUE
CONSIDERATIONS INVOLVED IN THIS CASE, NAMELY, WHETHER THE LEGISLATURE
HAS IMPERMISSIBLY AFFECTED AN INDIVIDUAL RIGHT OR HAS DONE SO IN AN
ARBITRARY FASHION.  CF. MICHELMAN, SUPRA.  WHILE LEGISLATION USUALLY
WILL NOT BE DEEMED ARBITRARY IF ITS MEANS CAN ARGUABLY BE SUPPOSED TO
BE RELATED TO A LEGITIMATE PURPOSE (SEE MY DISSENTING OPINION IN
SHAPIRO V. THOMPSON, SUPRA) AND GENERALLY THE BURDEN OF DEMONSTRATING
THE EXISTENCE OF A RATIONAL CONNECTION BETWEEN MEANS AND ENDS IS NOT
BORNE BY THE STATE) SEE FLEMMING V. NESTOR, SUPRA, AND MY DISSENTING
OPINION IN SWANN V. ADAMS, 385 U.S. 440, 447 (1967), THE PRESUMPTION OF
REGULARITY THAT COMES WITH LEGISLATIVE JUDGMENT IS ONE THAT IS NOT
EQUALLY ACCEPTABLE IN ALL INSTANCES, NOR IS IT BLIND TO THE NATURE OF
THE INTERESTS AFFECTED. 

THUS, AS A DUE PROCESS MATTER I HAVE SUBSCRIBED TO THE ADMONITION OF
SKINNER V. OKLAHOMA, 316 U.S. 535, 541 (1942), WHERE THE COURT
CAUTIONED THAT THERE ARE LIMITS TO THE EXTENT TO WHICH THE PRESUMPTION
OF CONSTITUTIONALITY CAN BE PRESSED WHERE A "BASIC LIBERTY" IS
CONCERNED.  SEE MY DISSENTING OPINION IN POE V. ULLMAN, SUPRA, AT 543. 
THE SAME VIEWPOINT WAS IMPLICIT IN FLEMMING V. NESTOR, SUPRA, WHERE THE
COURT NOTED THE BREADTH OF LATITUDE TO BE ACCORDED TO A LEGISLATIVE
JUDGMENT WHEN THE INTEREST WAS THAT OF A "NONCONTRACTUAL BENEFIT UNDER
A SOCIAL WELFARE PROGRAM."  363 U.S.,AT 611.  THUS WHILE THAT "INTEREST
. . . IS OF SUFFICIENT SUBSTANTCE TO FALL WITHIN THE PROTECTION FROM
ARBRITRARY GOVERNMENTAL ACTION AFFORDED BY THE DUE PROCESS CLAUSE,"
WHEN THAT INTEREST IS THE "WITHHOLDING OF A NONCONTRACTUAL BENEFIT
UNDER A SOCIAL WELFARE PROGRAM . . . , WE MUST RECOGNIZE THAT THE DUE
PROCESS CLAUSE CAN BE THOUGHT TO INTERPOSE A BAR ONLY IF THE STATUTE
MANIFESTS A PATENTLY ARBITRARY CLASSIFICATION, UTTERLY LACKING IN
RATIONAL JUSTIFICATION."  IBID.     THE IMPLICATION OF FLEMMING IS,
HOWEVER, THAT THE DEFERENCE OWED TO LEGISLATIVE JUDGMENT IS NOT THE
SAME IN ALL CASES.  THUS LEGISLATION THAT REGULATES CONDUCT BUT
INCIDENTALLY AFFECTS FREEDOM OF EXPRESSION MAY, ALTHOUGH IT IS A
RATIONAL CHOICE TO EFFECTUATE A LEGITIMATE LEGISLATIVE PURPOSE, BE
INVALID BECAUSE IT IMPOSES A BURDEN ON THAT RIGHT, OR BECAUSE OTHER
MEANS, ENTAILING LESS IMPOSITION, MAY EXIST.  SEE NAACP V. ALABAMA, 357
U.S. 449 (1958); LOVELL V. CITY OF GRIFFIN, 303 U.S. 444 (1938); GARNER
V. LOUISIANA, 368 U.S. 157, 185 (1961) (CONCURRING IN THE JUDGMENT);
UNITED STATES V. O'BRIEN, 391 U.S. 367, 388 (1968) (CONCURRING
OPINION). 

THESE DECISIONS, BY NO MEANS DISPOSITIVE OF THE CASE BEFORE US,
UNQUESTIONABLY SHOW THAT THIS COURT WILL SQUINT HARD AT ANY LEGISLATION
THAT DEPRIVES AN INDIVIDUAL OF HIS LIBERTY-- HIS RIGHT TO REMAIN FREE. 
CF. MY DISSENTING OPINION IN POE V. ULLMAN, SUPRA.  WHILE THE INTEREST
OF THE STATE, THAT OF PUNISHING ONE CONVICTED OF CRIME IS NO LESS
SUBSTANTIAL, CF. CONCURRING OPINION OF MR. JUSTICE BRENNAN IN ILLINOIS
V. ALLEN, 397 U.S. 337, 347 (1970), THE "BALANCE WHICH OUR NATION,
BUILT UPON POSTULATES OF RESPECT FOR THE LIBERTY OF THE INDIVIDUAL, HAS
STRUCK BETWEEN THAT LIBERTY AND THE DEMANDS OF ORGANIZED SOCIETY," POE
V. ULLMAN, SUPRA, AT 542, "HAVING REGARD TO WHAT HISTORY TEACHES" IS
NOT SUCH THAT THE STATE'S INTEREST HERE OUTWEIGHS THAT OF THE
INDIVIDUAL SO AS TO BRING INTO FULL PLAY THE APPLICATION OF THE USUAL
SALUTARY PRESUMPTION OF RATIONALITY. 

        III 

THE STATE BY THIS STATUTE, OR ANY OTHER STATUTE FIXING A PENALTY OF
A FINE, HAS DECLARED ITS PENOLOGICAL INTEREST-- DETERRENCE,
RETRIBUTION, AND REHABILITATION-- SATISFIED BY A MONETARY PAYMENT, AND
DISCLAIMED, AS SERVING ANY PENOLOGICAL PURPOSE IN SUCH CASES, A TERM IN
JAIL.  WHILE THERE CAN BE NO QUESTION THAT THE STATE HAS A LEGITIMATE
CONCERN WITH PUNISHING AN INDIVIDUAL WHO CANNOT PAY THE FINE, THERE IS
SERIOUS QUESTION IN MY MIND WHETHER, HAVING DECLARED ITSELF INDIFFERENT
AS BETWEEN FINE AND JAIL, IT CAN CONSISTENTLY WITH DUE PROCESS REFRAIN
FROM OFFERING SOME ALTERNATIVE SUCH AS PAYMENT ON THE INTALLMENT PLAN. 

THERE ARE TWO CONCEIVABLE JUSTIFICATIONS FOR NOT DOING SO.  THE MOST
OBVIOUS AND LIKELY JUSTIFICATION FOR THE PRESENT STATUTE IS
ADMINISTRATIVE CONVENIENCE.  GIVEN THE INTEREST OF THE INDIVIDUAL
AFFECTED, I DO NOT THINK A STATE MAY, AFTER DECLARING ITSELF
INDIFFERENT BETWEEN A FINE AND JAIL, RELY ON THE CONVENIENCE OF THE
LATTER AS A CONSTITUTIONALLY ACCEPTABLE MEANS FOR ENFORCING ITS
INTEREST, GIVEN THE EXISTENCE OF LESS RESTRICTIVE ALTERNATIVES.  CF.
MULLANE V. CENTRAL HANOVER TRUST.  CO., 339 U.S. 306 (1950). 

THE SECOND CONCEIVABLE JUSTIFICATON IS THAT THE JAIL ALTERNATIVE
SERVES A PENOLOGICAL PURPOSE THAT CANNOT BE SERVED BY COLLECTION OF A
FINE OVER TIME.  IT IS CLEAR THAT HAVING DECLARED ITSELF SATISFIED BY A
FINE, THE ALTERNATIVE OF JAIL TO A FINE SERVES NEITHER A REHABILITATIVE
NOR A RETRIBUTIVE INTEREST.  THE QUESTION IS, THEN, WHETHER THE
REQUIREMENT OF A LUMP-SUM PAYMENT CAN BE SUSTAINED AS A RATIONAL
LEGISLATIVE DETERMINATION THAT DETERRENCE IS EFFECTIVE ONLY WHEN A FINE
IS EXACTED AT ONCE AFTER SENTENCE AND BY LUMP SUM, RATHER THAN OVER A
TERM.  THIS IS A HIGHLY DOUBTFUL PROPOSITION, SINCE, APART FROM THE
MERE FACT OF CONVICTION AND THE HUMILIATION ASSOCIATED WITH IT AND THE
TOKEN OF PUNISHMENT EVIDENCED BY THE FORFEITURE, THE DETERRENT EFFECT
OF A FINE IS APT TO DERIVE MORE FROM ITS PINCH ON THE PURSE THAN THE
TIME OF PAYMENT. 

THAT THE ILLINOIS STATUTE REPRESENTS A CONSIDERED JUDGMENT, EVINCING
THE BELIEF THAT JAIL IS A RATIONAL AND NECESSARY TRADE-OFF TO PUNISH
THE INDIVIDUAL WHO POSSESSES NO ACCUMULATED ASSETS SEEMS MOST UNLIKELY,
SINCE THE SUBSTITUTE SENTENCE PROVISION, PHRASED IN TERMS OF A JUDGMENT
COLLECTION STATUTE, DOES NOT IMPOSE A DISCRETIONARY JAIL TERM AS AN
ALTERNATIVE SENTENCE, BUT RATHER EQUATES DAYS IN JAIL WITH A FIXED
SUM.  THUS, GIVEN THAT THE ONLY CONCEIVABLE JUSTIFICATION FOR THIS
STATUTE THAT WOULD SATISFY DUE PROCESS-- THAT A LUMP-SUM FINE IS A
BETTER DETERRENT THAN ONE PAYABLE OVER A PERIOD OF TIME-- IS THE ONE
THAT IS LEAST LIKELY TO REPRESENT A CONSIDERED LEGISLATIVE JUDGMENT, I
WOULD HOLD THIS STATUTE INVALID. 

THE CONCLUSION I REACH IS ONLY THAT WHEN A STATE DECLARES ITS PENAL
INTEREST MAY BE SATISFIED BY A FINE OR A FORFEITURE IN COMBINATION WITH
A JAIL TERM THE ADMINISTRATIVE INCONVENIENCE IN A JUDGMENT COLLECTION
PROCEDURE DOES NOT, AS A MATTER OF DUE PROCESS, JUSTIFY SENDING TO
JAIL, OR EXTENDING THE JAIL TERM OF, INDIVIDUALS WHO POSSESS NO
ACCUMULATED ASSETS.  /1/  I WOULD RESERVE THE QUESTION AS TO WHETHER A
CONSIDERED LEGISLATIVE JUDGMENT THAT A LUMP-SUM FINE IS THE ONLY
EFFECTIVE KIND OF FORFEITURE FOR DETERRENCE AND THAT THE ALTERNATIVE
MUST BE JAIL, WOULD BE CONSTITUTIONAL.  IT FOLLOWS, A FORTIORI, THAT NO
CONCLUSION REACHED HEREIN CASTS ANY DOUBT ON THE CONVENTIONAL "$30 OR
30 DAYS" IF THE LEGISLATURE DECIDES THAT SHOULD BE THE PENALTY FOR THE
CRIME.  NOTE, DISCRIMINATIONS AGAINST THE POOR AND THE FOURTEENTH
AMENDMENT, 81 HARV.L.REV.  435 (1967).  SUCH A STATUTE EVINCES THE
PERFECTLY RATIONAL DETERMINATION THAT SOME INDIVIDUALS WILL BE
ADEQUATELY PUNISHED BY A MONEY FINE, AND OTHERS, INDIFFERENT TO MONEY--
WHETHER BY VIRTUE OF INDIGENCY OR OTHER REASONS-- CAN BE PUNISHED ONLY
BY A JAIL TERM.  STILL MORE PATENTLY NOTHING SAID HEREIN PRECLUDES THE
STATE FROM PUNISHING ULTIMATELY BY JAIL INDIVIDUALS WHO FAIL TO PAY
FINES OR IMPRISONING IMMEDIATELY INDIVIDUALS WHO, IN THE JUDGMENT OF A
COURT, WILL NOT UNDERTAKE TO PAY THEIR FINES. 

ON THESE PREMISES I JOIN THE COURT'S JUDGMENT VACATING APPELLANT'S
SENTENCE AND REMANDING TO THE SUPREME COURT OF ILLINOIS TO AFFORD IT AN
OPPORTUNITY TO INSTRUCT THE SENTENCING JUDGE AS TO ANY PERMISSIBLE
ALTERNATIVES UNDER ILLINOIS LAW.  IT MAY BE THAT ILLINOIS COURTS HAVE
THE POWER TO FASHION A PROCEDURE PENDING FURTHER CONSIDERATION OF THIS
PROBLEM BY THE STATE LEGISLATURE.  CF. ROSADO V. WYMAN, 397 U.S. 397,
421-422 (1970), AND MY OPINION CONCURRING IN THE RESULT IN WELSH V.
UNITED STATES, 398 U.S. 333, 344 (1970). 

/1/  IN THIS REGARD, UNLIKE THE COURT, I SEE NO DISTINCTION BETWEEN
CIRCUMSTANCES WHERE THE STATE THROUGH ITS JUDICIAL AGENT DETERMINES
THAT EFFECTIVE PUNISHMENT REQUIRES LESS THAN THE MAXIMUM PRISON TERM
PLUS A FINE, OR A FINE ALONE, AND THE CIRCUMSTANCES OF THIS CASE. 

STANLEY A. BASS ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WERE JACK GREENBERG, MICHAEL MELTSNER, AND ANTHONY G. AMSTERDAM. 

JAMES R. THOMPSON, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED
THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, AND JOEL M. FLAUM, ASSISTANT ATTORNEY GENERAL. 

THE NATIONAL LEGAL AID AND DEFENDER ASSN. FILED A BRIEF AS AMICUS
CURIAE URGING REVERSAL. 

RICHARD L. CURRY, MARVIN E. ASPEN, AND EDMUND HATFIELD, FILED A
BRIEF FOR THE CITY OF CHICAGO AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :















UNITED STATES V. SISSON, 399 U.S. 267 


       UNITED STATES V. SISSON

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS

        NO. 305.  ARGUED JANUARY 20-21, 1970-- DECIDED JUNE 29,

           1970 


APPELLEE WAS INDICTED FOR WILFULLY FAILING TO REPORT FOR INDUCTION AS
ORDERED BY HIS LOCAL DRAFT BOARD.  HE MOVED TO DISMISS THE INDICTMENT
BECAUSE (1) THE INVOLVEMENT IN VIETNAM VIOLATED INTERNATIONAL LAW, (2)
HE "REASONABLY BELIEVED THE GOVERNMENT'S INVOLVEMENT IN VIETNAM TO BE
ILLEGAL," (3) THE SELECTIVE SERVICE ACT AND ITS REGULATIONS WERE
UNCONSTITUTIONAL, AS THE LOCAL BOARDS'  PROCEDURES LACKED DUE PROCESS,
AND (4) COMPULSORY CONSCRIPTION IN PEACETIME WAS UNNECESSARY AND
STIFLED FUNDAMENTAL LIBERTIES.  THE DISTRICT JUDGE DISMISSED THE MOTION
AND THE CASE PROCEEDED TO TRIAL.  THE INSTRUCTIONS TO THE JURY MADE NO
REFERENCE TO A CONSCIENTIOUS OBJECTOR CLAIM, OR TO WHETHER THE APPELLEE
WAS "SINCERE" IN HIS BELIEFS, BUT ADVISED THE JURY THAT THE CRUX OF THE
CASE WAS WHETHER APPELLEE'S REFUSAL WAS "UNLAWFUL, KNOWINGLY, AND
WILFULLY" DONE.  THE JURY RETURNED A VERDICT OF GUILTY.  THEREAFTER,
APPELLEE MADE A MOTION UNDER FED. RULE CRIM. PROC. 34 TO ARREST THE
JUDGMENT ON THE GROUND THAT THE DISTRICT COURT LACKED JURISDICTION. 
THE DISTRICT COURT IN GRANTING WHAT IT TERMED A MOTION IN ARREST OF
JUDGMENT, RULED, NOT ON THE JURISDICTIONAL CONTENTION, BUT ON
APPELLEE'S "OLDER CONTENTION"  THAT THE INDICTMENT COULD NOT CHARGE AN
OFFENSE BASED ON THE ESTABLISHMENT, FREE EXERCISE, AND DUE PROCESS
CLAUSE ARGUMENTS RELATING TO CONSCIENTIOUS OBJECTIONS TO THE VIETNAM
CONFLICT.  THE COURT STATED THE FACTS OF THE CASE, AND DESCRIBED HOW
APPELLEE'S DEMEANOR ON THE STAND CONVINCED THE JUDGE OF HIS SINCERITY. 
THE COURT HELD THAT THE FREE EXERCISE AND DUE PROCESS CLAUSES
PROHIBITED APPLICATION OF THE DRAFT ACT TO APPELLEE TO REQUIRE HIM TO
FIGHT IN VIETNAM BECAUSE AS A "SINCERELY CONSCIENTIOUS MAN," HIS
INTEREST IN NOT KILLING IN VIETNAM OUTWEIGHED "THE COUNTRY'S PRESENT
NEED FOR HIM TO BE SO EMPLOYED."  THE COURT ALSO RULED THAT SEC. 6(J)
OF THE SELECTIVE SERVICE ACT VIOLATES THE ESTABLISHMENT CLAUSE.  THE
GOVERNMENT BASES ITS CLAIM THAT THIS COURT HAS JURISDICTION TO REVIEW
THE CASE ON THE "ARRESTING JUDGMENT"  PROVISION OF 18 U.S.C. 3731,
WHICH PROVIDES THAT AN APPEAL MAY BE TAKEN TO THE SUPREME COURT FROM A
DECISION (1) ARRESTING A JUDGMENT OF CONVICTION, (2) FOR INSUFFICIENCY
OF THE INDICTMENT OR INFORMATION, (3) WHERE SUCH DECISION IS BASED UPON
THE INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT
OR INFORMATION IS FOUNDED.  HELD: 

1.  THE DECISION BELOW WAS NOT ONE "ARRESTING A JUDGMENT OF
CONVICTION."  PP. 280-287. 

(A) IN GRANTING A MOTION IN ARREST OF JUDGMENT UNDER FED. RULE CRIM.
PROC. 34, WHICH PRESERVES THE COMMON-LAW REQUIREMENT, A DISTRICT COURT
MUST NOT LOOK BEYOND THE FACE OF THE RECORD, AND THUS A DECISION BASED
ON EVIDENCE ADDUCED AT TRIAL CANNOT BE ONE ARRESTING JUDGMENT.  PP. 280
282. 

(B) THE DISTRICT COURT CLEARLY WENT BEYOND THE "FACE OF THE RECORD"
IN REACHING ITS DECISION, AS THE COURT'S FACTUAL FINDINGS CONCERNING
APPELLEE'S SINCERITY AND OPPOSITION TO FIGHTING IN VIETNAM ARE
ESSENTIAL TO ITS DISPOSITION OF THE CASE.  PP. 283-284. 

(C) EVEN ASSUMING, ARGUENDO, THAT THE PARTIES COULD SECURE REVIEW
UNDER THE MOTION-IN-ARREST PROVISIONS OF SEC. 3731 ON THE BASIS OF A
STIPULATION, THERE CERTAINLY WAS NO FORMAL STIPULATION HERE, AND THE
MOST THAT CAN BE SAID IS THAT AFTER THE LOWER COURT'S DECISION THE
GOVERNMENT CHOSE TO ACCEPT THE OPINION'S FINDINGS OF FACT.  PP. 284
287. 

2.  THE INDICTMENT HERE WAS NOT INSUFFICIENT, AS IT RECITED THE
NECESSARY ELFMENTS OF AN OFFENSE, AND DID NOT ALLEGE FACTS THAT
THEMSELVES DEMONSTRATE THE AVAILABILITY OF A CONSTITUTIONAL PRIVILEGE. 
PP. 287-288. 

3.  SINCE THE DISPOSITION BELOW WAS BASED ON FACTUAL CONCLUSIONS NOT
FOUND IN THE INDICTMENT BUT RESULTING FROM EVIDENCE ADDUCED AT TRIAL,
THE DECISION WAS IN FACT AN ACQUITTAL RENDERED AFTER THE JURY'S VERDICT
OF GUILTY, AND NOT, AS CHARACTERIZED BY THE TRIAL JUDGE, AN ARREST OF
JUDGMENT.  PP. 288-290. 

4.  THE LEGISLATIVE HISTORY OF THE CRTMINAL APPEALS ACT, RATHER THAN
MANIFESTING A BROAD CONGRESSIONAL DIRECTIVE TO THIS COURT TO REVIEW
IMPORTANT LEGAL ISSUES, SHOWS A LEGISLATIVE POLICY TO PROVIDE REVIEW IN
ONLY CERTAIN CASES AND TO RESTRICT IT TO THOSE INSTANCES.  A PRIMARY
CONCERN OF THE ACT IS THAT NO APPEAL BE TAKEN BY THE GOVERNMENT FROM AN
ACQUITTAL, NO MATTER HOW ERRONEOUS THE UNDERLYING LEGAL THEORY.  PP.
291-299. 

5.  THIS COURT DOES NOT HAVE JURISDICTION IN THIS CASE UNDER THE
"MOTION IN BAR" PROVISION OF SEC. 3731.  PP. 299-307. 

(A) A MOTTON IN BAR CANNOT BE GRANTED ON THE BASIS OF FACTS THAT
WOULD NECESSARILY BE TRIED WITH THE GENERAL ISSUE IN THE CASE, AND HERE
THE DISTRICT JUDGE BASED HIS FINDINGS ON EVIDENCE PRESENTED TN THE
TRIAL OF THE GENERAL ISSUE.  PP. 301-302. 

(B) AN APPEAL FROM A MOTION IN BAR CANNOT BE GRANTED AFTER JEOPARDY
ATTACHES, AND IN LIGHT OF THE COMPROMISE ORIGINS OF THE CRIMINAL
APPEALS ACT, THE CONCERN OF SOME SENATORS OVER RETRIAL OF A DEFENDANT
WHOSE TRIAL ENDED AFTER THE JURY WAS IMPANELED, AND THE LONG-TIME
CONSISTENT INTERPRETATION BY THE GOVERNMENT, JEOPARDY ATTACHES WHEN THE
JURY IS SWORN.  PP. 302-307. 

297 F.SUPP.  902, DISMISSED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT.  /1/ 

THE GOVERNMENT SEEKS TO APPEAL TO THIS COURT A DECISION BY A
DISTRICT COURT IN MASSACHUSETTS HOLDING THAT APPELLEE SISSON COULD NOT
BE CRIMINALLY CONVICTED FOR REFUSING INDUCTION INTO THE ARMED FORCES. 
THE DISTRICT COURT'S OPINION WAS BOTTOMED ON WHAT THAT COURT UNDERSTOOD
TO BE SISSON'S RIGHTS OF CONSCIENCE AS A NONRELIGIOUS OBJECTOR TO THE
VIETNAM WAR, BUT NOT WARS IN GENERAL, UNDER THE FREE EXERCISE AND
ESTABLISHMENT CLAUSES OF THE FIRST AMENDMENT AND THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.  THE
DISTRICT COURT'S PRIMARY CONCLUSION, REACHED AFTER A FULL TRIAL, WAS
THAT THE CONSTITUTION PROHIBITED "THE APPLICATION OF THE 1967 DRAFT ACT
TO SISSON TO REQUIRE HIM TO RENDER COMBAT SERVICE IN VIETNAM"  BECAUSE
AS A "SINCERELY CONSCIENTIOUS MAN," SISSON'S INTEREST IN NOT KILLING IN
THE VIETNAM CONFLICT OUTWEIGHED "THE COUNTRY'S PRESENT NEED FOR HIM TO
BE SO EMPLOYED," 297 F.SUPP.  902, 910 (1969). 

THE DISTRICT COURT CHARACTERIZED ITS OWN DECISION AS AN ARREST OF
JUDGMENT, AND THE GOVERNMENT SEEKS REVIEW HERE PURSUANT TO THE
"ARRESTING JUDGMENT" PROVISION OF THE CRIMINAL APPEALS ACT, 18 U.S.C.
3731, AN ACT THAT NARROWLY LIMITS THE GOVERNMENT'S RIGHT TO APPEAL IN
CRIMINAL CASES TO CERTAIN TYPES OF DECISIONS.  ON OCTOBER 13, 1969,
THIS COURT ENTERED AN ORDER POSTPONING FURTHER CONSIDERATION OF THE
QUESTION OF JURISDICTION TO THE HEARING OF THE CASE ON THE MERITS, 396
U.S. 812 (1969).  FOR REASONS THAT WE ELABORATE IN WHAT FOLLOWS, WE
CONCLUDE THAT THE DECISION BELOW, DEPENDING AS IT DOES ON FACTS
DEVELOPED AT SISSON'S TRIAL, IS NOT AN ARREST OF JUDGMENT BUT INSTEAD
IS A DIRECTED ACQUITTAL.  AS SUCH, IT IS NOT A DECISION THAT THE
GOVERNMENT CAN APPEAL.  CONSEQUENTLY, THIS APPEAL MUST BE DISMISSED FOR
LACK OF JURISDICTION WITHOUT OUR CONSIDERING THE MERITS OF THIS CASE. 
WE, OF COURSE, INTIMATE NO VIEW CONCERNING THE CORRECTNESS OF THE LEGAL
THEORY BY WHICH THE DISTRICT COURT EVALUATED THE FACTS DEVELOPED AT THE
TRIAL.  /1A/ 

AS A PREDICATE FOR OUR CONCLUSION THAT WE HAVE NO JURISDICTION TO
ENTERTAIN THE GOVERNMENT'S APPEAL, A FULL STATEMENT OF THE PROCEEDINGS
BELOW IS DESIRABLE. 

        I 

A SINGLE-COUNT INDICTMENT CHARGED THAT SISSON "DID UNLAWFULLY,
KNOWINGLY AND WILFULLY FAIL AND NEGLECT AND REFUSE TO PERFORM A DUTY"
IMPOSED BY THE MILITARY SELECTIVE SERVICE ACT OF 1967 AND ITS
REGULATIONS, IN VIOLATION OF SEC. 12 OF THE ACT, 81 STAT. 105, 50
U.S.C. APP. 462(A) (1964 ED., SUPP. IV), BECAUSE HE FAILED TO OBEY AN
ORDER BY HIS LOCAL DRAFT BOARD TO SUBMIT TO INDUCTION. 

PRIOR TO TRIAL, SISSON'S ATTORNEY MOVED TO DISMISS THE INDICTMENT ON
THREE GROUNDS.  IT WAS CLAIMED THAT SISSON'S REFUSAL TO SUBMIT TO
INDUCTION WAS JUSTIFIED FIRST, BECAUSE "THE GOVERNMENT'S MILITARY
INVOLVEMENT IN VIETNAM VIOLATES INTERNATIONAL LAW"; AND, SECOND,
BECAUSE SISSON "REASONABLY BELIEVED THE GOVERNMENT'S MILITARY
INVOLVEMENT IN VIETNAM TO BE ILLEGAL."  AS A THIRD GROUND, SISSON
CLAIMED THAT THE SELECTIVE SERVICE ACT AND ITS REGULATIONS WERE
UNCONSTITUTIONAL (A) BECAUSE THE PROCEDURES FOLLOWED BY LOCAL BOARDS
LACKED DUE PROCESS; AND (B) BECAUSE COMPULSORY CONSCRIPTION DURING
PEACETIME WAS UNNECESSARY AND STIFLED FUNDAMENTAL PERSONAL LIBERTIES. 
IN SUPPORT OF THE MOTION TO DISMISS, APPELLEE STATED: 

     "AT THE TIME I REFUSED TO SUBMIT TO INDUCTION INTO THE ARMED
  FORCES I BELIEVED, AS I BELIEVE TODAY, THAT THE UNITED STATES
  MILITARY INVOLVEMENT IN VIETNAM IS ILLEGAL UNDER INTERNATIONAL
  LAW AS WELL AS UNDER THE CONSTITUTION AND TREATIES OF THE UNITED
  STATES.  I BELIEVED THEN, AND STILL BELIEVE, THAT MY
  PARTICIPATION IN THAT WAR WOULD VIOLATE THE SPIRIT AND THE LETTER
  OF THE NUREMBERG CHARTER.  ON THE BASIS OF MY KNOWLEDGE OF THAT
  WAR, I COULD NOT PARTICIPATE IN IT WITHOUT DOING VIOLENCE TO THE
  DICTATES OF MY CONSCIENCE." 

AT THE HEARING ON APPELLEE'S MOTION TO DISMISS, THE DISTRICT JUDGE
SAID THAT HE HAD "AN OPEN MIND" CONCERNING APPELLEE'S FIRST AND THIRD
GROUNDS.  HOWEVER, THE COURT SAID THERE WAS "NOTHING TO" THE SECOND
GROUND, NOTING THAT WHAT "THE DEFENDANT REASONABLY BELIEVES . . .
CANNOT BE RAISED IN THE WAY THAT YOU PROPOSE . . . BECAUSE THAT DOES
NOT APPEAR ON THE FACE OF THE INDICTMENT."  (APP. 49.)  THE DISTRICT
COURT LATER AMPLIFIED THIS CONCLUSION BY SAYING: 

     "POINT 2 IS PLAINLY PREMATURE BECAUSE NOBODY CAN TEST THE
  ISSUE AS TO WHETHER DEFENDANT REASONABLY BELIEVES THE GOVERNMENT'S
  MILITARY INVOLVEMENT IN VIETNAM IS ILLEGAL WITHOUT KNOWING WHAT
  HE REASONABLY BELIEVED, AND WHAT HE BELIEVED IS A QUESTION OF
  EVIDENCE AND NOT A QUESTION WHICH APPEARS ON THE FACE OF THE
  INDICTMENT."  (APP. 52.) 

DEFENSE COUNSEL DID NOT DISPUTE THE DISTRICT COURT'S ANALYSIS, AND
NOTED THAT HE HAD RAISED THE ISSUE IN HIS MOTION TO DISMISS ONLY "IN
THE INTEREST OF ECONOMY," BECAUSE "(IT WAS NOT CLEAR AT THE TIME I
FILED THE MOTION THAT THE GOVERNMENT WOULD CHALLENGE THIS FACT."  (APP.
52.)  THE COURT EXPRESSED DOUBTS CONCERNING THE GOVERNMENT'S
WILLINGNESS TO CONCEDE THIS FACT, AND, WHEN ASKED BY THE COURT, THE
GOVERNMENT COUNSEL SPECIFICALLY STATED HIS OPPOSITION TO THE MOTION TO
DISMISS.  THE COURT THEREUPON FOUND THE "SECOND GROUND" OF THE MOTION
TO DISMISS WITHOUT MERIT. 

A SHORT TIME AFTER THIS HEARING, THE DISTRICT COURT ISSUED TWO
WRITTEN OPINIONS, 294 F.SUPP.  511 AND 515 (1968), THAT DENIED THE
OTHER GROUNDS OF THE MOTION TO DISMISS.  AFTER DETERMINING THAT
APPELLEE HAD THE REQUISITE STANDING TO RAISE THE ISSUES INVOLVED, THE
COURT HELD THAT THE POLITICAL QUESTION DOCTRINE FORECLOSED
CONSIDERATION OF WHETHER CONGRESS COULD CONSTITUTIONALLY DRAFT FOR AN
UNDECLARED WAR, OR COULD ORDER SISSON TO FIGHT IN THE ALLEGEDLY
"GENOCIDAL WAR." 

AN ORDER ACCOMPANYING THE SECOND PRETRIAL OPINION ALSO DEALT WITH
VARIOUS OFFERS OF PROOF THAT DEFENSE COUNSEL HAD MADE IN AN INFORMAL
LETTER TO THE COURT, NOT PART OF THE RECORD.  FROM THE ORDER IT APPEARS
THAT APPELLEE'S COUNSEL STATED HE WOULD "OFFER EVIDENCE TO SHOW THAT
(SISSON) PROPERLY REFUSED TO BE INDUCTED ON THE BASIS OF HIS RIGHT OF
CONSCIENCE, BOTH STATUTORY AND CONSTITUTIONAL."  NOT UNDERSTANDING THE
SCOPE OF THIS RATHER AMBIGUOUS OFFER OF PROOF, THE DISTRICT COURT IN
ITS ORDER RULED THAT IF SISSON WISHED TO MAKE A CONSCIENTIOUS OBJECTOR
CLAIM BASED ON RELIGIOUS OBJECTIONS NOT TO WARS IN GENERAL BUT TO THE
VIETNAM WAR IN PARTICULAR, SISSON SHOULD MAKE HIS OFFER OF PROOF
INITIALLY TO THE JUDGE. 

"TO ELICIT A RULING WHETHER THE FIRST AMENDMENT PRECLUDES THE
CONGRESS FROM REQUIRING ONE WHO HAS RELIGIOUS CONSCIENTIOUS OBJECTIONS
TO THE VIETNAM WAR TO RESPOND TO THE INDUCTION ORDER HE RECEIVED.  IF
THE COURT RULES FAVORABLY TO DEFENDANT ON THE CONSTITUTIONAL ISSUE OF
LAW, THEN BOTH DEFENSE AND PROSECUTION ARE ENTITLED TO SUBMIT TO THE
TRIER OF FACT EVIDENCE RELEVANT TO THE QUESTION WHETHER DEFENDANT
INDEED IS A RELIGIOUS CONSCIENTIOUS OBJECTOR TO THE VIETNAM WAR."  294
F.SUPP.,AT 519. 

AT THE TRIAL, HOWEVER, IT APPEARS THAT DEFENSE COUNSEL DID NOT TRY
TO PROVE THAT SISSON SHOULD HAVE RECEIVED A CONSCIENTIOUS OBJECTOR
EXEMPTION, NOR DID HE REQUEST A CONSCIENTIOUS OBJECTOR EXEMPTION, NOR
DID HE REQUEST A RULING ON THE FIRST AMENDMENT ISSUES REFERRED TO BY
THE TRIAL COURT.  INSTEAD IT SEEMS THAT THE DEFENSE STRATEGY WAS TO
PROVE THAT SISSON BELIEVED THE VIETNAM WAR TO BE ILLEGAL UNDER DOMESTIC
AND INTERNATIONL LAW, AND THAT THIS BELIEF WAS REASONABLE.  IF UNABLE
TO GET A DIRECT ADJUDICATION OF THE LEGALITY OF THE WAR, THE DEFENSE AT
LEAST HOPED TO CONVINCE THE JURY THAT SISSON LACKED THE REQUISITE
INTENT TO "WILFULLY" REFUSE INDUCTION.  /2/ 

THERE WAS EVIDENCE SUBMITTED AT THE TRIAL THAT DID BEAR ON THE
CONSCIENTIOUS OBJECTOR ISSUE, HOWEVER.  WHEN ASKED WHY HE HAD REFUSED
INDUCTION, SISSON EMPHASIZED THAT HE THOUGHT THE WAR ILLEGAL.  HE ALSO
SAID THAT HE FELT THE VIETNAM WAR WAS "IMMORAL," "ILLEGAL," AND
"UNJUST," AND WENT AGAINST "MY PRINCIPLES AND MY BEST SENSE OF WHAT WAS
RIGHT."  THE COURT ASKED SISSON WHAT THE BASIS FOR HIS CONCLUSIONS WAS,
PARTICULARLY WHAT SISSON MEANT WHEN HE SAID THE WAR WAS IMMORAL. 
SISSON SAID THAT THE WAR VIOLATED HIS FEELINGS ABOUT (1) RESPECT FOR
HUMAN LIFE, (2) VALUE OF MAN'S FREEDOM, AND (3) THE SCALE OF
DESTRUCTION AND KILLING CONSONANT WITH THE STATED PURPOSES OF AMERICAN
INTERVENTION.  SISSON ALSO STATED, IN RESPONSE TO THE TRIAL JUDGE'S
QUESTION, THAT HIS "MORAL VALUES COME FROM THE SAME SOURCES (THE TRIAL
COURT HAD) MENTIONED, RELIGIOUS WRITINGS, PHILOSOPHICAL BELIEFS." 

THE PROSECUTION DID NOT ALLOW SISSON'S TESTIMONY TO STAND WITHOUT
CROSS-EXAMINATION.  IN APPARENT RELIANCE ON THE COURT'S PRETRIAL RULING
THAT SISSON'S BELIEFS CONCERNING THE WAR WERE IRRELEVANT TO THE
QUESTION OF WHETHER HIS REFUSAL TO SUBMIT TO INDUCTION WAS WILFUL, /3/
THE GOVERNMENT COUNSEL CONCENTRATED ON SHOWING THAT SISSON HAD REFUSED
INDUCTION DELIBERATELY, OF HIS OWN FREE WILL, AND KNOWING THE
CONSEQUENCES.  THE PROSECUTION ALSO BROUGHT OUT THAT SISSON HAD FAILED
TO APPEAL HIS I-A CLASSIFICATION WHEN IT HAD BEEN ISSUED, AND THAT HE
HAD ACCEPTED, AS AN UNDERGRADUATE, A II-S STUDENT CLASSIFICATION. 

IN THE FINAL ARGUMENTS TO THE JURY, JUST AS IN THE OPENING STATEMENTS,
NEITHER COUNSEL MENTIONED A RELIGIOUS OR NONRELIGIOUS CONSCIENTIOUS
OBJECTOR ISSUE.  THE DEFENSE ARGUED THAT THE KEY TO THE CASE WAS
WHETHER SISSON HAD "WILFULLY" REFUSED TO SUBMIT TO INDUCTION, AND TRIED
TO SUGGEST HIS BELIEFS ABOUT THE WAR WERE RELEVANT TO THIS.  THE
GOVERNMENT LAWYER SIMPLY POINTED OUT THE OPERATIVE FACTS OF SISSON'S
REFUSAL.  HE ALSO ATTACKED SISSON'S SINCERITY BY POINTING OUT THE
INCONSISTENCY BETWEEN SISSONS' BROAD STATEMENTS THAT HE OPPOSED
DEFERMENTS BECAUSE THEY DISCRIMINATED AGAINST THE POOR, SEE N. 2,
SUPRA, AND HIS WILLINGNESS TO ACCEPT A II-S DEFERMENT WHILE HE WAS AT
HARVARD COLLEGE.  (SEE APP. 187-188.) 

THE INSTRUCTIONS TO THE JURY MADE NO REFERENCE TO A CONSCIENTIOUS
OBJECTOR CLAIM, AND THE JURY WAS NOT ASKED TO FIND WHETHER SISSON WAS
"SINCERE" IN HIS MORAL BELIEFS CONCERNING THE WAR.  INSTEAD THE TRIAL
COURT TOLD THE JURY THAT THE CRUX OF THE CASE WAS WHETHER SISSON'S
REFUSAL TO SUBMIT TO INDUCTION WAS "UNLAWFULLY, KNOWINGLY AND WILFULLY"
DONE.  /4/  THE JURY, AFTER DELIBERATING ABOUT 20 MINUTES, BROUGHT IN
A VERDICT OF GUILTY. 

AFTER THE TRIAL, THE DEFENDANT MADE A TIMELY MOTION UNDER FED. RULE
CRIM. PROC. 34 TO ARREST THE JUDGMENT ON THE GROUND THAT THE DISTRICT
COURT LACKED JURISDICTION.  /5/  POINTING TO THE FACT THAT THE DISTRICT
COURT HAD RULED BEFORE THE TRIAL THAT THE POLITICAL QUESTION DOCTRINE
PREVENTED ITS CONSIDERATION OF DEFENSES REQUIRING AN ADJUDICATION OF
THE LEGALITY OF THE VIETNAM WAR, THE DEFENSE ARGUED THAT THE COURT
THEREFORE LACKED JURISDICTION UNDER ARTICLE III AND THE DUE PROCESS
CLAUSE TO TRY THE DEFENDANT FOR AN OFFENSE TO WHICH THE ILLEGALITY OF
THE WAR MIGHT PROVIDE A DEFENSE. 

THE DISTRICT COURT, IN GRANTING WHAT IT TERMED A MOTION IN ARREST OF
JUDGMENT DID NOT RULE ON THE JURISDICTIONAL ARGUMENT RAISED IN THE
DEFENSE MOTION.  INSTEAD, THE COURT RULED ON WHAT IT TERMED DEFENDANT'S
"OLDER CONTENTION"  /6/  THAT THE INDICTMENT DID NOT CHARGE AN OFFENSE
BASED ON DEFENDANT'S "NEVER-ABANDONED" ESTABLISHMENT, FREE EXERCISE,
AND DUE PROCESS CLAUSE ARGUMENTS RELATING TO CONSCIENTIOUS OBJECTIONS
TO THE VIETNAM WAR. 

THE COURT FIRST STATED THE FACTS OF THE CASE, IN EFFECT MAKING
FINDINGS ESSENTIAL TO ITS DECISION.  THE OPINION DESCRIBES HOW SISSON'S
DEMEANOR ON THE STAND CONVINCED THE COURT OF HIS SINCERITY.  THE COURT
STATED THAT "SISSON'S TABLE OF ULTIMATE VALUES IS MORAL AND ETHICAL . .
. (AND) REFLECTS QUITE AS REAL, PERVASIVE, DURABLE, AND COMMENDABLE A
MARSHALLING OF PRIORITIES AS A FORMAL RELIGION."  THE CRITICAL FINDING
FOR WHAT FOLLOWED WAS THAT: 

"WHAT ANOTHER DERIVES FROM THE DISCIPLINE OF A CHURCH, SISSON
DERIVES FROM THE DISCIPLINE OF CONSCIENCE. 

     " . . . SISSON BORE THE BURDEN OF PROVING BY OBJECTIVE
  EVIDENCE THAT HE WAS SINCERE.  HE WAS AS GENUINELY AND PROFOUNDLY
  GOVERNED BY HIS CONSCIENCE AS WOULD HAVE BEEN A MARTYR OBEDIENT TO
  AN ORTHODOX RELIGION."  297 F.SUPP.,AT 905. 

BUILDING ON THESE FINDINGS, THE COURT FIRST HELD THAT THE FREE
EXERCISE AND DUE PROCESS CLAUSES "PROHIBIT THE APPLICATION OF THE 1967
DRAFT ACT TO SISSON TO REQUIRE HIM TO RENDER COMBAT SERVICE IN VIETNAM"
BECAUSE AS A "SINCERELY CONSCIENTIOUS MAN," SISSON'S INTEREST IN NOT
KILLING IN THE VIETNAM CONFLICT OUTWEIGHED "THE COUNTRY'S PRESENT NEED
FOR HIM TO BE SO EMPLOYED."  THE DISTRICT COURT ALSO RULED THAT SEC.
6(J) OF THE SELECTIVE SERVICE ACT, 50 U.S.C. APP. 456(J) (1964 ED.,
SUPP. IV), OFFENDS THE ESTABLISHMENT CLAUSE BECAUSE IT
"UNCONSTITUTIONALLY DISCRIMINATED AGAINST ATHEISTS, AGNOSTICS, AND MEN,
LIKE SISSON, WHO, WHETHER THEY BE RELIGIOUS OR NOT, ARE MOTIVATED IN
THEIR OBJECTION TO THE DRAFT BY PROFOUND MORAL BELIEFS WHICH CONSTITUTE
THE CENTRAL CONVICTIONS OF THEIR BEINGS."  297 F.SUPP.,AT 911. 

     II 

THE GOVERNMENT BASES ITS CLAIM THAT THIS COURT HAS JURISDICTION TO
REVIEW THE DISTRICT COURT'S DECISION EXCLUSIVELY ON THE "ARRESTING
JUDGMENT" PROVISION OF THE CRIMINAL APPEALS ACT, 18 U.S.C. 3731.  THE
RELEVANT STATUTORY LANGUAGE PROVIDES: 

     "AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES
  FROM THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE
UNITED STATES IN ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES:
        *          *          *          * 
     "FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION FOR
  INSUFFICIENCY OF THE INDICTMENT OR INFORMATION, WHERE SUCH
DECISION IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE
  STATUTE UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED." 

THUS, THREE REQUIREMENTS MUST BE MET FOR THIS COURT TO HAVE
JURISDICTION UNDER THIS PROVISION.  FIRST, THE DECISION OF THE DISTRICT
COURT MUST BE ONE "ARRESTING A JUDGMENT OF CONVICTION."  SECOND, THE
ARREST OF JUDGMENT MUST BE FOR THE "INSUFFICIENCY OF THE INDICTMENT OR
INFORMATION."  AND THIRD, THE DECISION MUST BE "BASED UPON THE
INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT OR
INFORMATION IS FOUNDED."  /8/ 

BECAUSE THE DISTRICT COURT'S DECISION RESTS ON FACTS NOT ALLEGED IN
THE INDICTMENT BUT INSTEAD INFERRED BY THE COURT FROM THE EVIDENCE
ADDUCED AT TRIAL, WE CONCLUDE THAT NEITHER THE FIRST NOR SECOND
REQUIREMENT IS MET.  /9/

        A 

WE BEGIN WITH THE FIRST REQUIREMENT:  WAS THE DECISION BELOW ONE
"ARRESTING A JUDGMENT OF CONVICTION"?  IN USING THAT PHRASE IN THE
CRIMINAL APPEALS ACT, CONGRESS DID NOT, OF COURSE, INVENT A NEW
PROCEDURAL CLASSIFICATION.  INSTEAD, CONGRESS ACTED AGAINST A COMMON
LAW BACKGROUND THAT GAVE THE STATUTORY PHRASE A WELL-DEFINED AND
LIMITED MEANING.  AN ARREST OF JUDGMENT WAS THE TECHNICAL TERM
DESCRIBING THE ACT OF A TRIAL JUDGE REFUSING TO ENTER JUDGMENT ON THE
VERDICT BECAUSE OF AN ERROR APPEARING ON THE FACE OF THE RECORD THAT
RENDERED THE JUDGMENT INVALID.  3 W.BLACKSTONE, COMMENTARIES *393; 3
H.STEPHEN, NEW COMMENTARIES ON THE LAWS OF ENGLAND 628 (1ST AM. ED.
1845); 2 J.BISHOP, NEW CRIMINAL PROCEDURE 1285 (2D ED. 1913). 

FOR THE PURPOSE OF THIS CASE THE CRITICAL REQUIREMENT IS THAT A
JUDGMENT CAN BE ARRESTED ONLY ON THE BASIS OF ERROR APPEARING ON THE
"FACE OF THE RECORD," AND NOT ON THE BASIS OF PROOF OFFERED AT TRIAL. 
/10/  THIS REQUIREMENT CAN BE FOUND IN EARLY ENGLISH COMMON-LAW CASES. 
IN SUTTON V. BISHOP, 4 BURR.  2283, 2287, 98 ENG.REP.  191, 193 (K.B.
1769), IT WAS STATED:  "(THE COURT OUGHT NOT TO ARREST JUDGMENTS UPON
MATTERS NOT APPEARING UPON THE FACE OF THE RECORD; BUT ARE TO JUDGE
UPON THE RECORD ITSELF."  ONCE TRANSPORTED TO THE UNITED STATES, /11/
THIS ESSENTIAL LIMITATION OF ARRESTS OF JUDGMENT WAS EXPLICITLY
ACKNOWLEDGED BY THIS COURT.  IN UNITED STATES V. KLINTOCK, 5 WHEAT. 
144, 149 (1820), THE COURT STATED THAT "JUDGMENT CAN BE ARRESTED ONLY
FOR ERRORS APPARENT ON THE RECORD."  AND LATER IN BOND V. DUSTIN, 112
U.S. 604 (1884), THE COURT SAID, "(A) MOTION IN ARREST OF JUDGMENT CAN
ONLY BE MAINTAINED FOR A DEFECT APPARENT UPON THE FACE OF THE RECORD,
AND THE EVIDENCE IS NO PART OF THE RECORD FOR THIS PURPOSE,"  ID., AT
608.  SEE CARTER V. BENNETT, 15 HOW.  354, 356-357 (1854); UNITED
STATES V. NORRIS, 281 U.S. 619 (1930). 

THIS VENERABLE REQUIREMENT OF THE COMMON LAW HAS BEEN PRESERVED
UNDER THE FEDERAL RULES OF CRIMINAL PROCEDURE, FOR THE COURTS HAVE
UNIFORMLY HELD THAT IN GRANTING A MOTION IN ARREST OF JUDGMENT UNDER
RULE 34, /12/  A DISTRICT COURT MUST NOT LOOK BEYOND THE FACE OF THE
RECORD.  E.G., UNITED STATES V. ZISBLATT, 172 F.2D 740 (C.A. 2D CIR.),
APPEAL DISMISSED ON GOVERNMENT'S MOTION, 336 U.S. 934 (1949); UNITED
STATES V. LIAS, 173 F.2D 685 (C.A. 4TH CIR. 1949); UNITED STATES V.
BRADFORD, 194 F.2D 197 (C.A. 2D CIR. 1952).  SEE 2 C.WRIGHT, FEDERAL
PRACTICE AND PROCEDURE 571 (1969); 5 L.ORFIELD, CRIMINAL PROCEDURE
UNDER THE FEDERAL RULES 34:7 (1967).  THEREFORE, WHETHER WE INTERPRET
THE STATUTORY PHRASE "DECISION ARRESTING A JUDGMENT" AS SPEAKING "TO
THE LAW, AS IT THEN WAS (IN 1907) . . . AS IT HAD COME DOWN FROM THE
PAST,"  /13/  OR DO NO MORE THAN INTERPRET IT AS SIMPLY IMPOSING THE
STANDARDS OF FED. RULE CRIM. PROC. 34, /14/  A DECISION BASED ON
EVIDENCE ADDUCED AT TRIAL CANNOT BE ONE ARRESTING JUDGMENT.  /15/ 

THE COURT BELOW CLEARLY WENT BEYOND THE "FACE OF THE RECORD" IN
REACHING ITS DECISION.  AS NOTED EARLIER, THE OPINION EXPLICITLY RELIES
UPON THE EVIDENCE ADDUCED AT THE TRIAL, INCLUDING DEMEANOR EVIDENCE,
FOR ITS FINDINGS THAT SISSON WAS "SINCERE" AND THAT HE WAS "AS
GENUINELY AND PROFOUNDLY GOVERNED BY HIS CONSCIENCE" AS A RELIGIOUS
CONSCIENTIOUS OBJECTOR. 

TO AVOID THE INESCAPABLE CONCLUSION THAT THE DISTRICT COURT'S
OPINION WAS NOT AN ARREST OF JUDGMENT, THE GOVERNMENT MAKES TWO
ARGUMENTS.  FIRST, THE GOVERNMENT SUGGESTS THAT THESE FACTUAL FINDINGS
OF THE DISTRICT COURT, BASED ON THE EVIDENCE PRESENTED AT TRIAL, WERE
NOT ESSENTIAL TO ITS CONSTITUTIONAL RULINGS, BUT INSTEAD ONLY PART OF
"THE CIRCUMSTANTIAL FRAMEWORK" OF THE OPINION BELOW.  (JURISDICTIONAL
STATEMENT 9; SEE BRIEF 8.)  THIS CANNOT WITHSTAND ANALYSIS, HOWEVER,
FOR THE FACTUAL FINDINGS WERE ABSOLUTELY ESSENTIAL, UNDER THE DISTRICT
COURT'S OWN LEGAL THEORY, TO ITS DISPOSITION OF THE CASE.  WITHOUT A
FINDING THAT SISSON WAS SINCERELY AND FUNDAMENTALLY OPPOSED TO
PARTICIPATION IN THE VIETNAM CONFLICT, THE DISTRICT COURT COULD NOT
HAVE RULED THAT UNDER THE DUE PROCESS AND FREE EXERCISE CLAUSES
SISSON'S INTEREST IN NOT SERVING IN VIETNAM OUTWEIGHED THE GOVERNMENT'S
NEED TO DRAFT HIM FOR SUCH SERVICE.  /16/ 

SECOND, THE GOVERNMENT ARGUES THAT EVEN THOUGH THE DISTRICT COURT
MADE FINDINGS ON EVIDENCE ADDUCED AT TRIAL, THE FACTS RELIED ON WERE
"UNDISPUTED."  ADOPTING THE LANGUAGE USED BY THE COURT BELOW, THE
GOVERNMENT CLAIMS THAT "IN SUBSTANCE THE CASE ARISES UPON AN AGREED
STATEMENT OF FACTS."  297 F.SUPP.AT 904.  THE GOVERNMENT THEN GOES ON
TO ARGUE THAT DECISIONS OF THIS COURT HAVE "RECOGNIZED THAT A
STIPULATION OF FACTS BY THE PARTIES IN A CRIMINAL CASE" CAN BE RELIED
ON BY THE DISTRICT COURT WITHOUT AFFECTING THE JURISDICTION FOR AN
APPEAL, CITING UNITED STATES V. HALSETH, 342 U.S. 277 (1952), AND
UNITED STATES V. FRUEHAUF, 365 U.S. 146 (1961).  THE GOVERNMENT THEN
CONCLUDES THAT IT WOULD BE EXALTING FORM OVER SUBSTANCES TO HOLD THERE
WAS NO APPEAL IN A CASE WHERE THE GOVERNMENT HAS NOT CONTESTED THE
FACTS, AND YET ALLOW AN APPEAL TO LIE FROM A MOTION TO DISMISS RESTING
UPON A STIPULATION OF THE PARTIES. 

PRELIMINARILY, IT SHOULD BE NOTED THAT THIS COURT HAS NEVER HELD
THAT AN APPEAL LIES FROM A DECISION WHICH DEPENDS, NOT UPON THE
SUFFICIENCY OF THE INDICTMENT ALONE, BUT ALSO ON A STIPULATION OF THE
PARTIES.  IN HALSETH THE PARTIES DID ENTER INTO A STIPULATION FOR
PURPOSES OF A MOTION TO DISMISS.  BUT THE FACTS IN THE STIPULATION WERE
IRRELEVANT TO THE LEGAL ISSUE OF WHETHER THE FEDERAL ANTILOTTERY
STATUTE REACHED A GAME NOT YET IN EXISTENCE.  THEREFORE, NEITHER THE
DISTRICT COURT IN DISMISSING THE INDICTMENT, NOR THIS COURT IN
AFFIRMING ITS DECISION, HAD TO RELY ON THE STIPULATION.  AND, FOR
PURPOSES OF DECIDING WHETHER JURISDICTION FOR AN APPEAL UNDER SEC. 3731
EXISTED, THE COURT OBVIOUSLY DID NOT HAVE TO DECIDE-- AND IT DID NOT
DISCUSS-- WHETHER RELIANCE ON A STIPULATION WOULD MAKE ANY DIFFERENCE. 
INSOFAR AS UNITED STATES V. FRUEHAUF, SUPRA, THE OTHER CASE CITED BY
THE GOVERNMENT, IS RELEVANT AT ALL IT SEEMS TO POINT AWAY FROM THE
GOVERNMENT'S CONTENTION.  IN FRUEHAUF THIS COURT REFUSED TO CONSIDER
THE MERITS OF AN APPEAL UNDER SEC. 3731 FROM A DISTRICT COURT DECISIONS
DISMISSING AN INDICTMENT ON THE BASIS OF A "'JUDICIAL ADMISSION' CULLED
FROM A PRETRIAL MEMORANDUM" OF THE GOVERNMENT BY THE DISTRICT JUDGE. 
RATHER THAN PENALIZING THE GOVERNMENT BY DISMISSING THE APPEAL,
HOWEVER, THE COURT SIMPLY EXERCISED ITS DISCRETION UNDER 28 U.S.C. 2106
BY SETTING ASIDE THE RULING BELOW, AND REMANDING THE CASE FOR A NEW
TRIAL ON THE EXISTING INDICTMENT. 

NOT ONLY DO THE CASES CITED BY THE GOVERNMENT FAIL TO ESTABLISH ITS
CONTENTION, BUT OTHER AUTHORITY POINTS STRONGLY IN THE OPPOSITE
DIRECTION.  IN UNITED STATES V. NORRIS, 281 U.S. 619 (1930), THIS COURT
SAID THAT A "STIPULATION WAS INEFFECTIVE TO IMPORT AN ISSUE AS TO THE
SUFFICIENCY OF THE INDICTMENT, OR AN ISSUE OF FACT UPON THE QUESTION OF
GUILT OR INNOCENCE," BECAUSE OF "THE RULE THAT NOTHING CAN BE ADDED TO
AN INDICTMENT WITHOUT THE CONCURRENCE OF THE GRAND JURY," ID., AT 622. 
WHILE IT IS TRUE THAT NORRIS IS COMPLICATED BY THE FACT THAT THE
DEFENDANT HAD ENTERED A GUILTY PLEA, THE COURT SAID THAT EVEN "(IF (THE
STIPULATION HAD BEEN) FILED BEFORE PLEA AND (HAD BEEN) GIVEN EFFECT,
SUCH A STIPULATION WOULD OUST THE JURISDICTION OF THE COURT,"  ID., AT
622-623.  NORRIS, TOGETHER WITH THE POLICY, OFTEN EXPRESSED BY THIS
COURT, THAT THE CRIMINAL APPEALS ACT SHOULD BE STRICTLY CONSTRUED
AGAINST THE GOVERNMENT'S RIGHT TO APPEAL, SEE, E.G., UNITED STATES V.
BORDEN CO., 308 U.S. 188, 192 (1939), MAKES IT AT LEAST VERY DOUBTFUL
WHETHER THE PARTIES SHOULD, ON THE BASIS OF A STIPULATION, BE ABLE TO
SECURE REVIEW UNDER THE MOTION-IN-ARREST PROVISIONS OF SEC. 3731. 

WE DO NOT DECIDE THAT ISSUE, HOWEVER, FOR THERE WAS NOTHING EVEN
APPROACHING A STIPULATION HERE.  BEFORE THE COURT'S FINAL RULING BELOW,
THE PARTIES DID NOT IN ANY WAY, FORMALLY OR INFORMALLY, AGREE ON THE
FACTUAL FINDINGS MADE IN ITS OPINION.  IT IS RELEVANT TO RECALL THAT
BEFORE THE TRIAL THE GOVERNMENT ATTORNEY SPECIFICALLY REFUSED TO
STIPULATE WHETHER SISSON SINCERLEY BELIEVED THE WAR TO BE ILLEGAL, AND,
IF SO, WHETHER SUCH A BELIEF WAS REASONABLE.  MOREOVER, GIVEN THAT THE
GOVERNMENT ATTORNEY CROSS-EXAMINED SISSON, AND LATER POINTED OUT THE
INCONSISTENCY BETWEEN ISSON'S ACCEPTANCE OF A II-S STUDENT DEFERMENT
AND HIS CLAIM THAT HE DISAPPROVED OF DEFERMENTS AS UNFAIR, IT HARDLY
SEEMS THE GOVERNMENT ACCEPTED SISSON'S SINCERITY INSOFAR AS IT WAS AN
ISSUE IN THE CASE.  THEREFORE, FAR FROM BEING LIKE A CASE WITH A FORMAL
STIPULATION BETWEEN THE PARTIES, THE MOST THAT CAN BE SAID IS THAT
AFTER THE DISTRICT COURT'S DECISION THE GOVERNMENT CHOSE TO ACCEPT THE
OPINION'S FINDINGS OF FACT.  EVEN ASSUMING RELIANCE ON A FORMAL
STIPULATION WERE PERMISSIBLE, IT WOULD STILL BE INTOLERABLE TO ALLOW
DIRECT REVIEW WHENEVER THE DISTRICT COURT LABELS ITS DECISION A MOTION
IN ARREST, AND THE GOVERNMENT MERELY ACCEPTS THE LOWER COURT'S FACTUAL
FINDINGS MADE AFTER A TRIAL-- FOR THIS WOULD MEAN THE PARTIES AND THE
LOWER COURT SIMPLY COULD FOIST JURISDICTION UPON THIS COURT. 

        B 

THE SECOND STATUTORY REQUIREMENT, THAT THE DECISION ARRESTING
JUDGMENT BE "FOR INSUFFICIENCY OF THE INDICTMENT," IS ALSO NOT MET IN
THIS CASE.  SENATOR NELSON, ONE OF THE SPONSORS OF THE CRIMINAL APPEALS
ACT, MADE IT PLAIN DURING THE DEBATES THAT THIS SECOND ELEMENT WAS AN
IMPORTANT LIMITATION.  HE SAID: 

     "THE ARREST OF JUDGMENT . . . ON WHICH AN APPEAL LIES, IS NOT
A

  GENERAL MOTION COVERING ALL THE GROUNDS ON WHICH A JUDGMENT MAY

  BE ARRESTED.  IT IS SIMPLY FOR ARREST OF JUDGMENT BECAUSE OF THE

  INSUFFICIENCY OF THE INDICTMENT-- THAT IS, THE FAILURE OF THE

  INDICTMENT TO CHARGE A CRIMINAL OFFENSE."  41 CONG.REC.  2756. 

SEE ALSO 40 CONG.REC.  9033.  ALTHOUGH THE DISTRICT COURT'S OPINION
RECITES AS A CONCLUSION THAT THE INDICTMENT IN THIS CASE DID "NOT
CHARGE AN OFFENSE" FOR PURPOSES OF RULE 34, SURELY THE INDICTMENT
ALLEGED THE NECESSARY ELEMENTS OF AN OFFENSE.  /17/THE DECISION BELOW
RESTS ON AFFIRMATIVE DEFENSES WHICH THE COURT THOUGHT SISSON COULD
CLAIM BECAUSE OF HIS BELIEFS.  IT HAS NEVER BEEN THOUGHT THAT AN
INDICTMENT, IN ORDER TO BE SUFFICIENT, NEED ANTICIPATE AFFIRMATIVE
DEFENSES, UNITED STATES V. FARGAS, 267 F.SUPP.  452, 455 (C.D.S.D.N.Y.
1967) ("ANY QUESTIONS AS TO THE VALIDITY OF THE LOCAL BOARD'S REFUSAL
TO GRANT CONSCIENTIOUS OBJECTOR EXEMPTION ARE MATTERS OF DEFENSE . . .
(THAT) (THERE IS NO NECESSITY FOR THE INDICTMENT TO NEGATE . . . "). 
MOREOVER, EVEN ASSUMING, ARGUENDO, THE CORRECTNESS OF THE DISTRICT
COURT'S CONSTITUTIONAL THEORY THAT SINCERE NONRELIGIOUS OBJECTORS TO
PARTICULAR WARS HAVE A CONSTITUTIONAL PRIVILEGE THAT BARS CONVICTION,
THE FACTS ESSENTIAL TO SISSON'S CLAIM OF THIS PRIVILEGE DO NOT APPEAR
FROM ANY RECITALS IN THE INDICTMENT.  AS THE DISTRICT COURT ITSELF SAID
BEFORE TRIAL, "(WHAT (SISSON) BELIEVED IS A QUESTION OF EVIDENCE AND
NOT A QUESTION WHICH APPEARS ON THE FACE OF THE INDICTMENT."  (APP.
52.)  IN SHORT, THIS INDICTMENT CANNOT BE TAKEN AS INSUFFICIENT FOR, ON
THE ONE HAND, IT RECITES THE NECESSARY ELEMENTS OF AN OFFENSE, AND ON
THE OTHER HAND, IT DOES NOT ALLEGE FACTS THAT THEMSELVES DEMONSTRATE
THE AVAILABILITY OF A CONSTITUTIONAL PRIVILEGE. 

        C 

THE SAME REASON UNDERLYING OUR CONCLUSION THAT THIS WAS NOT A
DECISION ARRESTING JUDGMENT-- I.E., THAT THE DISPOSITION IS BOTTOMED ON
FACTUAL CONCLUSIONS NOT FOUND IN THE INDICTMENT BUT INSTEAD MADE ON THE
BASIS OF EVIDENCE ADDUCED AT THE TRIAL-- CONVINCES US THAT THE DECISION
WAS IN FACT AN ACQUITTAL RENDERED BY THE TRIAL COURT AFTER THE JURY'S
VERDICT OF GUILTY. 

FOR PURPOSES OF ANALYSIS IT IS HELPFUL TO COMPARE THIS CASE TO ONE
IN WHICH A JURY WAS INSTRUCTED AS FOLLOWS: 

"IF YOU FIND DEFENDANT SISSON TO BE SINCERE, AND IF YOU FIND THAT HE
WAS AS GENUINELY AND PROFOUNDLY GOVERNED BY CONSCIENCE AS A MARTYR
OBEDIENT TO AN ORTHODOX RELIGION, YOU MUST ACQUIT HIM BECAUSE THE
GOVERNMENT'S INTEREST IN HAVING HIM SERVE IN VIETNAM IS OUTWEIGHED BY
HIS INTEREST IN OBEYING THE DICTATES OF HIS CONSCIENCE.  ON THE OTHER
HAND, IF YOU DO NOT SO FIND, YOU MUST CONVICT IF YOU FIND THAT
PETITIONER DID WILFULLY REFUSE INDUCTION."  IF A JURY HAD BEEN SO
INSTRUCTED, THERE CAN BE NO DOUBT THAT ITS VERDICT OF ACQUITTAL COULD
NOT BE APPEALED UNDER SEC. 3731 NO MATTER HOW ERRONEOUS THE
CONSTITUTIONAL THEORY UNDERLYING THE INSTRUCTIONS.  AS SENATOR KNOX
SAID OF THE BILL THAT WAS TO BECOME THE CRIMINAL APPEALS ACT:
MARK THIS:  IT IS NOT PROPOSED TO GIVE THE GOVERNMENT ANY APPEAL UNDER
ANY CIRCUMSTANCES WHEN

  THE DEFENDANT IS ACQUITTED FOR ANY ERROR WHATEVER COMMITTED BY
THE COURT.       *          *          *          * 

     "THE GOVERNMENT TAKES THE RISKS OF ALL THE MISTAKES OF ITS

  PROSECUTING OFFICERS AND OF THE TRIAL JUDGE IN THE TRIAL, AND IT

IS ONLY PROPOSED TO GIVE IT AN APPEAL UPON QUESTIONS OF LAW

 RAISED BY THE DEFENDANT TO DEFEAT THE TRIAL AND IF IT DEFEATS THE

  TRIAL. 

     "THE DEFENDANT GETS THE BENEFIT OF ALL ERRORS IN THE TRIAL

  WHICH ARE IN HIS FAVOR, AND CAN CHALLENGE ALL ERRORS IN THE TRIAL

  WHICH ARE AGAINST HIM."  41 CONG.REC.  2752. 

QUITE APART FROM THE STATUTE, IT IS, OF COURSE, WELL SETTLED THAT AN
ACQUITTAL CAN "NOT BE REVIEWED, ON ERROR OR OTHERWISE, WITHOUT PUTTING
(THE DEFENDANT) TWICE IN JEOPARDY, AND THEREBY VIOLATING THE
CONSTITUTION.  . . . (IN THIS COUNTRY A VERDICT OF ACQUITTAL, ALTHOUGH
NOT FOLLOWED BY ANY JUDGMENT, IS A BAR TO A SUBSEQUENT PROSECUTION FOR
THE SAME OFFENCE," UNITED STATES V. BALL, 163 U.S. 662, 671 (1896). 
/18/ 

THERE ARE THREE DIFFERENCES BETWEEN THE HYPOTHETICAL CASE JUST
SUGGESTED AND THE CASE AT HAND.  FIRST, IN THIS CASE IT WAS THE JUDGE--
NOT THE JURY-- WHO MADE THE FACTUAL DETERMINATIONS.  THIS DIFFERENCE
ALONE DOES NOT SUPPORT A LEGAL DISTINCTION, HOWEVER, FOR JUDGES, LIKE
JURIES, CAN ACQUIT DEFENDANTS, SEE FED. RULE CRIM. PROC. 29.  SECOND,
THE JUDGE IN THIS CASE MADE HIS DECISION AFTER THE JURY HAD BROUGHT IN
A VERDICT OF GUILTY.  RULES 29(B) AND (C) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, HOWEVER, EXPRESSLY ALLOW A FEDERAL JUDGE TO ACQUIT
A CRIMINAL DEFENDANT AFTER THE JURY "RETURNS A VERDICT OF GUILTY."  AND
THIRD, IN THIS CASE THE DISTRICT JUDGE LABELED HIS POST-VERDICT OPINION
AN ARREST OF JUDGMENT, NOT AN ACQUITTAL.  THIS CHARACTERIZATION ALONE,
HOWEVER, NEITHER CONFERS JURISDICTION ON THIS COURT, SEE N. 7, SUPRA,
NOR MAKES THE OPINION ANY LESS DEPENDENT UPON EVIDENCE ADDUCED AT THE
TRIAL.  IN SHORT, WE SEE NO DISTINCTION BETWEEN WHAT THE COURT BELOW
DID, AND A POST-VERDICT DIRECTED ACQUITTAL.  /19/

        III 

THE DISSENTING OPINIONS OF BOTH THE CHIEF JUSTICE AND MR. JUSTICE
WHITE SUGGEST THAT WE ARE TOO NIGGARDLY IN OUR INTERPRETATION OF THE
CRIMINAL APPEALS ACT, AND EACH CONTENDS THAT THE ACT SHOULD BE MORE
BROADLY CONSTRUED TO GIVE EFFECT TO AN UNDERLYING POLICY THAT IS SAID
TO FAVOR REVIEW.  THIS COURT HAS FREQUENTLY STATED THAT THE
"EXCEPTIONAL RIGHT OF APPEAL GIVEN TO THE GOVERNMENT BY THE CRIMINAL
APPEALS ACT IS STRICTLY LIMITED TO THE INSTANCES SPECIFIED," UNITED
STATES V. BORDEN CO., 308 U.S. 188, 192 (1939), AND THAT SUCH APPEALS
"ARE SOMETHING UNUSUAL, EXCEPTIONAL, NOT FAVORED."  CARROLL V. UNITED
STATES, 354 U.S. 394, 400 (1957); SEE UNITED STATES V. KEITEL, 211 U.S.
370, 399 (1908); UNITED STATES V. DICKINSON, 213 U.S. 92, 103 (1909);
CF. WILL V. UNITED STATES, 389 U.S. 90, 96 (1967).  THE APPROACH
SUGGESTED BY OUR BROTHERS SEEMS INCONSISTENT WITH THESE NOTIONS. 
MOREOVER, THE BACKGROUND AND LEGISLATIVE HISTORY OF THE CRIMINAL
APPEALS ACT DEMONSTRATE THE COMPROMISE ORIGINS OF THE ACT THAT JUSTIFY
THE PRINCIPLE OF STRICT CONSTRUCTION THIS COURT HAS ALWAYS SAID SHOULD
BE PLACED ON ITS PROVISIONS.  BECAUSE THE CRIMINAL APPEALS ACT, NOW 18
U.S.C. 3731 (1964 ED., SUPP. IV), /20/  HAS DESCENDED UNCHANGED IN
SUBSTANCE FROM THE ORIGINAL CRIMINAL APPEALS ACT, WHICH WAS ENACTED ON
MARCH 2, 1907, 34 STAT. 1246, /21/  THE CRUCIAL FOCUS FOR THIS INQUIRY
MUST BE THE LEGISLATIVE HISTORY OF THE 1907 ACT.  /22/

        A 

BEGINNING IN 1892-- 15 YEARS BEFORE THE ENACTMENT OF THE CRIMINAL
APPEALS ACT-- THE ATTORNEYS GENERAL OF THE UNITED STATES REGULARLY
RECOMMENDED PASSAGE OF LEGISLATION ALLOWING THE GOVERNMENT TO APPEAL IN
CRIMINAL CASES.  /23/  THEIR PRIMARY PURPOSE WAS PERHAPS BEST EXPRESSED
BY ATTORNEY GENERAL MILLER IN HIS 1892 REPORT:  "AS THE LAW NOW STANDS
. . . IT IS IN THE POWER OF A SINGLE DISTRICT JUDGE, BY QUASHING AN
INDICTMENT, TO DEFEAT ANY CRIMINAL PROSECUTION INSTITUTED BY THE
GOVERNMENT."  /24/  THERE WAS NO PROGRESS, HOWEVER, UNTIL PRESIDENT
THEODORE ROOSEVELT, OUTRAGED BY A DECISION OF JUDGE HUMPHREY PREVENTING
THE PROSECUTION OF THE BEEF TRUST, /25/  MADE THIS PROPOSED REFORM INTO
A "MAJOR POLITICAL ISSUE,"  /26/  AND DEMANDED THE ENACTMENT OF
LEGISLATION IN HIS 1906 ANNUAL MESSAGE TO CONGRESS.  /27/ 

THE HOUSE, AS ONE COMMENTATOR HAS WRITTEN, "WAS OBEDIENT TO THE
PRESIDENTIAL COMMAND."  /28/  IT PASSED, WITHOUT DEBATE, /29/  A VERY
BROAD BILL GIVING THE GOVERNMENT THE SAME RIGHT TO APPEAL LEGAL ISSUES
DECIDED ADVERSELY TO IT AS HAD EARLIER BEEN ACCORDED A CRIMINAL
DEFENDANT.  /30/  THE SENATE WOULD NOT ACCEPT ANY SUCH SWEEPING CHANGE
OF THE TRADITIONAL COMMON-LAW RULE GIVING THE GOVERNMENT NO APPEAL AT
ALL.  THE SUBSTITUTE BILL THAT THE SENATE JUDICIARY COMMITTEE REPORTED
OUT /31/  NARROWED THE HOUSE BILL SUBSTANTIALLY, AND LIMITED THE
GOVERNMENT'S RIGHT TO APPEAL TO WRITS OF ERROR FROM DECISIONS (1)
QUASHING AN INDICTMENT OR SUSTAINING A DEMURRER TO AN INDICTMENT; (2)
ARRESTING JUDGMENT OF CONVICTION BECAUSE OF THE INSUFFICIENCY OF THE
INDICTMENT; AND (3) SUSTAINING SPECIAL PLEAS IN BAR WHEN THE DEFENDANT
HAD NOT BEEN PUT IN JEOPARDY.  EVEN AS NARROWED, THE BILL MET
OPPOSITION ON THE FLOOR, /32/  AND THE SESSION CLOSED WITHOUT SENATE
ACTION.  /33/ 

THE NEXT SESSION, AFTER THE BILL WAS AGAIN REPORTED OUT OF THE
SENATE JUDICIARY COMMITTEE, /34/  IT WAS DEBATED FOR THREE DAYS ON THE
FLOOR AND AGAIN MET STRONG OPPOSITION.  /35/  REFLECTING THE DEEP
CONCERN THAT THE LEGISLATION NOT JEOPARDIZE INTERESTS OF DEFENDANTS
WHOSE CASES WERE APPEALED BY THE GOVERNMENT, AMENDMENTS WERE ADOPTED
REQUIRING THE GOVERNMENT TO APPEAL WITHIN 30 DAYS AND TO PROSECUTE ITS
CASES WITH DILIGENCE; /36/  AND ALLOWING DEFENDANTS WHOSE CASES WERE
APPEALED TO BE RELEASED ON THEIR OWN RECOGNIZANCE IN THE DISCRETION OF
THE PRESIDING JUDGE.  /37/  VARIOUS SENATORS WERE PARTICULARLY
CONCERNED LEST THERE BE ANY POSSIBILITY THAT A DEFENDANT WHO HAD
ALREADY BEEN THROUGH ONE TRIAL BE SUBJECTED TO ANOTHER TRIAL AFTER A
SUCCESSFUL APPEAL BY THE GOVERNMENT.  /38/  IN RESPONSE TO THIS
CONCERN, AN AMENDMENT WAS THEN ADOPTED REQUIRING THAT A VERDICT IN
FAVOR OF THE DEFENDANT NOT BE SET ASIDE ON APPEAL /39/  NO MATTER HOW
ERRONEOUS THE LEGAL THEORY UPON WHICH IT MIGHT BE BASED.  /40/  FOR
THESE PURPOSES, IT WAS MADE PLAIN THAT IT MADE NO DIFFERENCE WHETHER
THE VERDICT BE THE RESULT OF THE JURY'S DECISION OR THAT OF THE JUDGE. 
/41/  MOREOVER, AS WE EXPLORE IN MORE DETAIL LATER, THE DEBATES SUGGEST
THAT APART FROM DECISIONS ARRESTING JUDGMENT, THERE WERE TO BE NO
APPEALS TAKEN IN ANY CASE IN WHICH JEOPARDY HAD ATTACHED BY THE
IMPANELING OF THE JURY.  /42/  FINALLY, TO LIMIT FURTHER THE SCOPE OF
THE ACT TO CASES OF PUBLIC IMPORTANCE, THE GOVERNMENT'S RIGHT TO APPEAL
(UNDER ALL BUT THE SPECIAL PLEA IN BAR PROVISION) WAS CONFINED TO CASES
IN WHICH THE GROUND OF THE DISTRICT COURT'S DECISION WAS THE
"INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT IS
FOUNDED."  /43/ 

WITH ALL THESE AMENDMENTS THE SENATE PASSED THE BILL WITHOUT
DIVISION ON FEBRUARY 13, 1907, /44/  BUT THE HOUSE, AFTER REFERRING THE
SENATE'S VERSION TO ITS JUDICIARY COMMITTEE, /45/  DISAGREED WITH THE
SENATE BILL AND PROPOSED A CONFERENCE.  /46/  THE CONFERENCE COMMITTEE,
APART FROM DIVESTING THE COURTS OF APPEALS OF JURISDICTION THE HEAR ANY
GOVERNMENT APPEALS, ADOPTED THE SENATE VERSION OF THE BILL WITH MERELY
FORMAL CHANGES.  /47/  BOTH THE SENATE AND THE HOUSE APPROVED THE BILL
REPORTED OUT BY THE COMMITTEE /48/  AND WITH THE PRESIDENT'S SIGNATURE
THE CRIMINAL APPEALS ACT BECAME LAW. 

        B 

WITH THIS PERSPECTIVE, WE NOW EXAMINE THE ARGUMENTS MADE IN
OPPOSITION TO OUR CONCLUSION.  IT IS ARGUED IN DISSENT THAT SEC. 3731
"CONTEMPLATES THAT AN ARREST OF JUDGMENT IS APPROPRIATE IN OTHER THAN A
CLOSED CATEGORY OF CASES DEFINED BY LEGAL HISTORY," AND CONCLUDES THAT
"EVIDENCE ADDUCED AT TRIAL CAN BE CONSIDERED BY A DISTRICT COURT AS THE
BASIS FOR A MOTION IN ARREST OF JUDGMENT WHEN THAT EVIDENCE IS USED
SOLELY FOR THE PURPOSE OF TESTING THE CONSTITUTIONALITY OF THE CHARGING
STATUTE AS APPLIED," POST, AT 314 (DISSENTING OPINION OF THE CHIEF
JUSTICE). 

THE DISSENTERS PROPOSE IN EFFECT TO CREATE A NEW PROCEDURE-- LABEL
IT A DECISION ARRESTING JUDGMENT-- IN ORDER TO CONCLUDE THAT THIS COURT
HAS JURISDICTION TO HEAR THIS APPEAL BY THE GOVERNMENT.  THE STATUTORY
PHRASE "DECISION ARRESTING A JUDGMENT" IS NOT AN EMPTY VESSEL INTO
WHICH THIS COURT IS FREE TO POUR A VINTAGE THAT WE THINK BETTER SUITS
PRESENT-DAY TASTES.  AS WE HAVE SHOWN, CONGRESS DEFINED OUR
JURISDICTION IN THE CRIMINAL APPEALS ACT IN TERMS OF PROCEDURES
EXISTING IN 1907.  AS A MATTER OF INTERPRETATION, THIS COURT HAS NOT
RIGHT TO GIVE THE STATUTORY LANGUAGE A MEANING INCONSISTENT WITH ITS
COMMON-LAW ANTECEDENTS, AND ALIEN TO THE LIMITATIONS THAT TODAY GOVERN
MOTIONS IN ARREST OF JUDGMENT UNDER RULE 34.  /49/ 

RADICAL REINTERPRETATIONS OF THE STATUTORY PHRASE "DECISION
ARRESTING A JUDGMENT" ARE SAID TO BE NECESSARY IN ORDER TO EFFECTUATE A
BROAD POLICY, FOUND TO BE UNDERLYING THE CRIMINAL APPEALS ACT, THAT
THIS COURT REVIEW IMPORTANT LEGAL ISSUES.  THE AXIOM THAT COURTS SHOULD
ENDEAVOR TO GIVE STATUTORY LANGUAGE THAT MEANING THAT NURTURES THE
POLICIES UNDERLYING LEGISLATION IS ONE THAT GUIDES US WHEN
CIRCUMSTANCES NOT PLAINLY COVERED BY THE TERMS OF A STATUTE ARE
SUBSUMED BY THE UNDERLYING POLICIES TO UHICH CONGRESS WAS COMMITTED. 
CARE MUST BE TAKEN, HOWEVER, TO RESPECT THE LIMITS UP TO WHICH CONGRESS
WAS PREPARED TO ENACT A PARTICULAR POLICY, ESPECIALLY WHEN THE
BOUNDARIES OF A STATUTE ARE DRAWN AS A COMPROMISE RESULTING FROM THE
COUNTERVAILING PRESSURES OF OTHER POLICIES.  OUR DISAGREEING BROTHERS,
IN SEEKING TO ENERGIZE THE CONGRESSIONAL COMMITMENT TO REVIEW, IGNORE
THE SUBTLETY OF THE COMPROMISE THAT LIMITED OUR JURISDICTION, THEREBY
GARNERING THE VOTES NECESSARY TO ENACT THE CRIMINAL APPEALS ACT.  /50/ 

IN THIS REGARD, THE LEGISLATIVE HISTORY REVEALS A STRONG CURRENT OF
CONGRESSIONAL SOLICITUDE FOR THE PLIGHT OF A CRIMINAL DEFENDANT EXPOSED
TO ADDITIONAL EXPENSE AND ANXIETY BY A GOVERNMENT APPEAL AND THE
INCUMBENT POSSIBILITY OF MULTIPLE TRIALS.  CRIMINAL APPEALS BY THE
GOVERNMENT "ALWAYS THREATEN TO OFFEND THE POLICIES BEHIND THE DOUBLE
JEOPARDY PROHIBITION," WILL V. UNITED STATES, SUPRA, AT 96, EVEN IN
CIRCUMSTANCES WHERE THE CONSTITUTION ITSELF DOES NOT BAR RETRIAL.  OUT
OF A COLLISION BETWEEN THIS POLICY CONCERN, AND THE COMPETING POLICY
FAVORING REVIEW, CONGRESS ENACTED A BILL THAT FULLY SATISFIED NEITHER
THE GOVERNMENT NOR THE BILL'S OPPONENTS.  /51/  FOR THE CRIMINAL
APPEALS ACT, THUS BORN OF COMPROMISE, MANIFESTED A CONGRESSIONAL POLICY
TO PROVIDE REVIEW IN CERTAIN INSTANCES BUT NO LESS A CONGRESSIONAL
POLICY TO RESTRICT IT TO THE ENUMERATED CIRCUMSTANCES. 

WERE WE TO THROW OVERBOARD THE BALLAST PROVIDED BY THE STATUTE'S
LANGUAGE AND LEGISLATIVE HISTORY, WE WOULD CAST OURSELVES ADRIFT, BLIND
TO THE RISKS OF COLLISION WITH OTHER POLICIES THAT ARE THE BUOYS
MARKING THE SAFELY NAVIAGBLE ZONE OF OUR JURISDICTION.  AS WE HAVE
SHOWN, WHAT THE DISTRICT COURT DID IN THIS CASE CANNOT BE DISTINGUISHED
FROM A POST-VERDICT ACQUITTAL ENTERED ON THE GROUND THAT THE GOVERNMENT
DID NOT PRESENT EVIDENCE SUFFICIENT TO PROVE THAT SISSON WAS
INSINCERE.  A PRIMARY CONCERN OF THE BILL THAT EMERGED INTO LAW WAS
THAT NO APPEAL BE TAKEN BY THE GOVERNMENT FROM AN ACQUITTAL NO MATTER
HOW ERRONEOUS THE LEGAL THEORY UNDERLYING THE DECISION.  MOREOVER,
GOING BEYOND THE PRESENT CASE, THE THEORY OF THOSE IN DISAGREEMENT
WOULD ALLOW A TRIAL JUDGE TO RESERVE TO HIMSELF THE RESOLUTION OF
DISPUTES CONCERNING FACTS UNDERLYING A CLAIM THAT IN PARTICULAR
CIRCUMSTANCES A SPEECH OR PROTEST MARCH WERE PRIVILEGED UNDER THE FIRST
AMENDMENT, A PRACTICE PLAINLY INCONSISTENT WITH A CRIMINAL DEFENDANT'S
JURY TRIAL RIGHTS. 

C 

QUITE APART FROM THE ARRESTING JUDGMENT PROVISION, IT IS ALSO ARGUED
THAT WE HAVE JURISDICTION UNDER THE "MOTION IN BAR" PROVISION OF THE
CRIMINAL APPEALS ACT.  WE THINK IT APPROPRIATE TO ADDRESS OURSELVES TO
THIS CONTENTION, PARTICULARLY IN LIGHT OF THE FACT THAT WE ASKED THE
PARTIES TO BRIEF THAT ISSUE, /52/  EVEN THOUGH OUR HOLDING THAT THE
DECISION BELOW WAS AN ACQUITTAL IS SUFFICIENT TO DISPOSE OF THE CASE. 

THE CASE LAW UNDER THE MOTION-IN-BAR PROVISION IS VERY CONFUSED,
/53/  AND THIS COURT HAS NOT SETTLED ON A GENERAL APPROACH TO BE TAKEN
IN INTERPRETING THIS PROVISION.  /54/  EVEN UNDER THE MOST EXPANSIVE
VIEW, HOWEVER, A MOTION IN BAR CANNOT BE GRANTED ON THE BASIS OF FACTS
THAT WOULD NECESSARILY BE TRIED WITH THE GENERAL ISSUE IN THE CASE. 
/55/  IN THIS CASE, THERE CAN BE NO DOUBT THAT THE DISTRICT COURT BASED
ITS FINDINGS ON EVIDENCE PRESENTED IN THE TRIAL OF THE GENERAL ISSUE. 
AS WE HAVE SHOWN EARLIER, THE COURT'S FINDINGS WERE BASED ON SISSON'S
TESTIMONY AND DEMEANOR AT THE TRIAL ITSELF.  MOREOVER, A DEFENSE BASED
ON SISSON'S ASSERTED CONSTITUTIONAL PRIVILEGE NOT TO BE REQUIRED TO
FIGHT IN A PARTICULAR WAR WOULD, WE THINK, NECESSARILY BE PART OF THE
"GENERAL ISSUE" OF A SUIT OVER A REGISTRANT'S REFUSAL TO SUBMIT TO
INDUCTION.  AS THE CHIEF JUSTICE SAYS IN HIS DISSENTING OPINION,
"ESTABLISHING THE APPROPRIATE CLASSIFICATION IS ACTUALLY AN ELEMENT OF
THE GOVERNMENT'S CASE," POST, AT 324, ONCE A DEFENDANT RAISES A DEFENSE
CHALLENGING IT.  WE THINK A DEFENSE TO A PRE-INDUCTION SUIT BASED ON
CONSCIENTIOUS OBJECTIONS THAT REQUIRE FACTUAL DETERMINATIONS IS TO
INTERTWINED WITH THE GENERAL ISSUE THAT IT MUST BE TRIED WITH THE
GENERAL ISSUE, UNITED STATES V. FARGAS, 267 F.SUPP.  452, 455 (1967)
(PRETRIAL MOTION TO DISMISS UNDER RULE 12(B)(1) ON THE BASIS OF AN
AFFIDAVIT, DENIED BECAUSE "THE VALIDITY OF THE (CONSCIENTIOUS OBJECTOR)
DEFENSE WHICH FARGAS NOW RAISES . . . WILL REQUIRE THE CONSIDERATION OF
FACTUAL QUESTIONS WHICH ARE EMBRACED IN THE GENERAL ISSUE"); SEE UNITED
STATES V. RAMOS, 413 F.2D 743, 744 N. 1 (C.A. 1ST CIR. 1969)
(EVIDENTIARY HEARING FOR PRETRIAL MOTION TO DISMISS INDICTMENT NOT
APPROPRIATE MEANS TO CONSIDER VALIDITY OF DEFENSE BASED ON
CONSCIENTIOUS OBJECTION BECAUSE "(QUESTIONS REGARDING THE VALIDITY OF
APPELLANT'S CLASSIFICATION SHOULD HAVE BEEN RAISED AS A DEFENSE AT THE
TRIAL," CITING FARGAS WITH APPROVAL).  /56/ 

THERE IS, IN OUR VIEW, STILL ANOTHER REASON NO APPEAL CAN LIE IN
THIS CASE UNDER THE MOTION-IN-BAR PROVISION.  WE CONSTRUE THE CRIMINAL
APPEALS ACT AS CONFINING THE GOVERNMENT'S RIGHT TO APPEAL-- EXCEPT FOR
MOTIONS IN ARREST OF JUDGMENT-- TO SITUATIONS IN WHICH A JURY HAS NOT
BEEN IMPANELED, EVEN THOUGH THERE ARE CASES IN WHICH A DEFENDANT MIGHT
CONSTITUTIONALLY BE RETRIED IF APPEALS WERE ALLOWED AFTER JEOPARDY HAD
ATTACHED.  BECAUSE THE COURT BELOW RENDERED ITS DECISION HERE AFTER THE
TRIAL BEGAN, AND BECAUSE THAT DECISION WAS NOT, AS WE HAVE SHOWN, AN
ARREST OF JUDGMENT, WE THEREFORE CONCLUDE THERE CAN BE NO APPEAL UNDER
THE OTHER PROVISIONS OF SEC. 3731. 

WE REACH THIS CONCLUSION FOR SEVERAL REASONS.  FIRST, ALTHOUGH THE
LEGISLATIVE HISTORY IS FAR FROM CLEAR, WE THINK IT WAS THE
CONGRESSIONAL EXPECTATION THAT EXCEPT FOR MOTIONS IN ARREST-- WHICH AS
WE HAVE SHOWN COULD NEVER BE BASED ON EVIDENCE ADDUCED AT TRIAL-- THE
RULINGS TO WHICH THE BILL RELATED WOULD OCCUR BEFORE THE TRIAL BEGAN. 
/57/ THE LANGUAGE OF THE MOTION-IN-BAR PROVISION ITSELF LIMITS APPEALS
TO THOSE GRANTED "WHEN THE DEFENDANT HAS NOT BEEN PUT IN JEOPARDY."  WE
READ THAT LIMITATION TO MEAN EXACTLY WHAT IT SAYS-- I.E., NO APPEAL
FROM A MOTION IN BAR IS TO BE GRANTED AFTER JEOPARDY ATTACHES. 
ALTHOUGH THE LEGISLATIVE HISTORY SHOWS MUCH DISAGREEMENT AND CONFUSION
CONCERNING THE MEANING OF THE CONSTITUTIONAL PROHIBITION AGAINST
SUBJECTING A DEFENDANT TO DOUBLE JEOPARDY /58/  THERE WAS LITTLE
DISPUTE OVER THE THEN-SETTLED NOTION THAT A DEFENDANT WAS PUT INTO
JEOPARDY ONCE THE JURY WAS SWORN.  /59/  TO READ THIS LIMITATION AS NO
MORE THAN A RESTATEMENT OF THE CONSTITUTIONAL PROHIBITION, AS SUGGESTED
BY MR. JUSTICE WHITE, RENDERS IT COMPLETELY SUPERFLUOUS.  NO SENATOR
THOUGHT THAT CONGRESS HAD THE POWER UNDER THE CONSTITUTION TO PROVIDE
FOR AN APPEAL IN CIRCUMSTANCES IN WHICH THAT WOULD VIOLATE THE
CONSTITUTION.  /60/ 

OUR CONCLUSION DRAWS STRENGTH FROM THE FACT THAT THE GOVERNMENT
ITSELF HAS PLACED EXACTLY THIS SAME INTERPRETATION ON THE ACT.  THE
DEPARTMENT OF JUSTICE, THE AGENCY FOR WHOSE BENEFIT THE ORIGINAL BILL
WAS ENACTED, FIRST PLACED THIS CONSTRUCTION ON THE STATUTE SHORTLY
AFTER THE BILL WAS ENACTED, AND HAS CONSISTENTLY ABIDED BY IT IN THE
MORE THAN 60 YEARS THAT HAVE SINCE PASSED.  AS THE SOLICITOR GENERAL
STATED IN HIS BRIEF: 

     "THE DEPARTMENT OF JUSTICE HAS CONSISTENTLY TAKEN THE VIEW
THAT

  THE PLEA IN BAR SECTION LIMITS THE GOVERNMENT'S RIGHT OF APPEAL

  TO THE GRANTING OF SUCH PLEAS BEFORE A JURY HAS BEEN SWORN.  SOON

  AFTER PASSAGE OF THE ORIGINAL ACT, THE 1907 REPORT OF THE

  ATTORNEY GENERAL URGED THAT THE OMISSION IN THE ACT OF A

  GOVERNMENTAL RIGHT TO APPEAL FROM POSTJEOPARDY RULINGS BE

  REMEDIED BY REVISING THE ACT SO AS TO REQUIRE COUNSEL FOR THE

  DEFENDANT TO RAISE AND ARGUE QUESTIONS OF LAW PRIOR TO THE TIME

  WHEN JEOPARDY ATTACHED," BRIEF 17. 

LATER, AFTER DESCRIBING THE OPINION IN ZISBLATT, SUPRA, IN WHICH THE
SECOND CIRCUIT CERTIFIED AN APPEAL TO THIS COURT TO DETERMINE WHETHER
THE PHRASE "NOT BEEN PUT IN JEOPARDY" MERELY INCORPORATED THE
CONSTITUTIONAL LIMITATION, OR INSTEAD SHOULD BE TAKEN LITERALLY, THE
GOVERNMENT'S BRIEF STATES: 

"THE THEN SOLICITOR GENERAL, BEING OF THE VIEW THAT THE STATUTE
BARRED APPEALS FROM THE GRANTING OF MOTIONS IN BAR AFTER JEOPARDY HAD
ATTACHED, MOVED TO DISMISS THE APPEAL, AND THE APPEAL WAS DISMISSED
(336 U.S. 934).  THE DEPARTMENT OF JUSTICE HAS THEREAFTER ADHERED TO
THAT POSITION, AND THE GOVERNMENT HAS NEVER SOUGHT TO APPEAL IN THESE
CIRCUMSTANCES."  /61/ THIS INTERPRETATION IN OUR VIEW DESERVES GREAT
WEIGHT. 

IN LIGHT OF (1) THE COMPROMISE ORIGINS OF THE STATUTE, (2) THE
CONCERN WITH WHICH SOME SENATORS VIEWED THE RETRIAL OF ANY DEFENDANT
WHOSE TRIAL TERMINATED AFTER THE JURY WAS IMPANELED, AND (3) THE
INTERPRETATION PLACED ON THE ACT SHORTLY AFTER ITS PASSAGE /62/  THAT
HAS BEEN CONSISTENTLY FOLLOWED FOR MORE THAN 60 YEARS BY THE
GOVERNMENT, WE THINK THAT THE CORRECT COURSE IS TO CONSTRUE THE STATUTE
TO PROVIDE A CLEAR, EASILY ADMINISTERED TEST:  EXCEPT FOR DECISIONS
ARRESTING JUDGMENT, THERE CAN BE NO GOVERNMENT APPEALS FROM DECISIONS
RENDERED AFTER THE TRIAL BEGINS. 

        IV 

CLARITY IS TO BE DESIRED IN ANY STATUTE, BUT IN MATTERS OF
JURISDICTION IT IS ESPECIALLY IMPORTANT.  OTHERWISE THE COURTS AND THE
PARTIES MUST EXPEND GREAT ENERGY, NOT ON THE MERITS OF DISPUTE
SETTLEMENT, BUT ON SIMPLY DECIDING WHETHER A COURT HAS THE POWER TO
HEAR A CASE.  WHEN JUDGED IN THESE TERMS, THE CRIMINAL APPEALS ACT IS A
FAILURE.  BORN OF COMPROMISE, AND REFLECTING NO COHERENT ALLOCATION OF
APPELLATE RESPONSIBILITY, /63/  THE CRIMINAL APPEALS ACT PROVED A MOST
UNRULY CHILD THAT HAS NOT IMPROVED WITH AGE.  THE STATUTE'S ROOTS ARE
GROUNDED IN PLEADING DISTINCTIONS THAT EXISTED AT COMMON LAW BUT WHICH,
IN MOST INSTANCES, FAIL TO COINCIDE WITH THE PROCEDURAL CATEGORIES OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE.  NOT ONLY DOES THE STATUTE
CREATE UNCERTAINTY BY ITS REQUIREMENT THAT ONE ANALYZE THE NATURE OF
THE DECISION OF THE DISTRICT COURT IN ORDER TO DETERMINE WHETHER IT
FALLS WITHIN THE CLASS OF COMMON-LAW DISTINCTIONS FOR WHICH AN APPEAL
IS AUTHORIZED, /64/  BUT IT HAS ALSO ENGENDERED CONFUSION OVER THE
COURT TO WHICH AN APPEALABLE DECISION SHOULD BE BROUGHT.  /65 

THE SOLICITOR GENERAL, AT ORAL ARGUMENT IN THIS CASE, FORTHRIGHTLY
STATED THAT "THERE ARE FEW PROBLEMS WHICH OCCUR SO FREQUENTLY OR
PRESENT SUCH EXTREME TECHNICAL DIFFICULTY IN THE SOLICITOR GENERAL'S
OFFICE (AS) IN THE PROPER CONSTRUCTION OF THE CRIMINAL APPEALS ACT." 
/66/  WE SHARE HIS DISSATISFACTION WITH THIS STATUTE.  NEVERTHELESS,
UNTIL SUCH TIME AS CONGRESS DECIDES TO AMEND THE STATUTE, THIS COURT
MUST ABIDE BY THE LIMITATIONS IMPOSED BY THIS AWKWARD AND ANCIENT ACT. 

WE CONCLUDE THAT THE APPEAL IN THIS CASE MUST BE DISMISSED FOR LACK
OF JURISDICTION. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  MR. JUSTICE BLACK JOINS ONLY PART IIC OF THIS OPINION.  MR.
JUSTICE BRENNAN, MR. JUSTICE STEWART, AND MR. JUSTICE MARSHALL JOIN THE
ENTIRE OPINION. 

/1A/  WE HAVE TODAY GRANTED CERTIORARI IN GILLETTE V. UNITED STATES
(NO. 1170), AND NEGRE V. LARSEN (NO. 1669, MISC.), IN ORDER TO CONSIDER
THE "SELECTIVE" CONSCIENTIOUS OBJECTOR ISSUE THAT UNDERLIES THE CASE
NOW BEFORE US BUT WHICH WE CANNOT REACH BECAUSE OF OUR CONCLUSION THAT
WE HAVE NO JURISDICTION TO ENTERTAIN THIS DIRECT APPEAL. 

/2/  NOT ONLY DID THE DEFENSE ITSELF AVOID ADVANCING ANY THEORY OR
PROOF THAT SISSON DESERVED CONSCIENTIOUS OBJECTOR STATUS, BUT THERE ARE
EVEN INDICATIONS THAT THE DEFENSE PURPOSELY ATTEMPTED TO KEEP THE ISSUE
OUT OF THE CASE.  FOR EXAMPLE, AT ONE POINT IN THE TRIAL THE MARINE
OFFICER WHO CALLED SISSON FOR INDUCTION STATED THAT SISSON HAD TOLD HIM
AT THE TIME THAT HE WAS REFUSING INDUCTION BECAUSE OF RELIGIOUS BELIEF,
AND HIS "CONSCIENTIOUS OBJECTOR STATUS."  (APP. 143.)  LATER, WHEN
QUESTIONED BY HIS OUR COUNSEL, SISSON NOT ONLY DENIED HAVING THE
CONVERSATION WITH THE OFFICER BUT ALSO STATED THAT HE HAD NEVER APPLIED
FOR C.O. STATUS (1) BECAUSE HE COULD NOT HONESTLY CLAIM "CONSCIENTIOUS
OBJECTION TO WAR IN ANY FORM AS IT IS PUT ON THE FORM 150"; AND (2)
BECAUSE HE BELIEVED "THE SYSTEM OF EXEMPTIONS AND DEFERMENTS (TO BE)
UNEQUAL AND (TO DISCRIMINATE) AGAINST THOSE WHO DO NOT HAVE EDUCATION .
. . OR MONEY."  SISSON STATED FLATLY THAT HE THEREFORE "COULD NOT
ACCEPT SUCH DEFERMENT."  (APP. 147-150.) 

/3/  AMONG THE VARIOUS OFFERS OF PROOF MADE BY SISSON'S ATTORNEY
BEFORE THE TRIAL WAS ONE TO SHOW THAT SISSON "REASONABLY BELIEVED THE
VIETNAM WAR TO BE ILLEGAL," AND THAT HE THEREFORE LACKED THE REQUISITE
INTENT TO "WILFULLY" REFUSE INDUCTION.  IN THE PRETRIAL ORDER, THE
TRIAL JUDGE RULED THAT:

"'WILFULLY' AS USED IN THE INDICTMENT MEANS INTENTIONALLY,
DELIBERATELY, VOLUNTARILY.  IF THE GOVERNMENT PROVES DEFENDANT
INTENTIONALLY REFUSED TO COMPLY WITH AN ORDER OF HIS DRAFT BOARD, IN
ACCORDANCE WITH THE STATUTE, TO SUBMIT TO INDUCTION, IT IS NOT OPEN TO
DEFENDANT TO OFFER AS AN EXCUSE THAT HE REGARDED THE WAR AS ILLEGAL,
THAT IS, CONTRARY TO EITHER DOMESTIC CONSTITUTIONAL LAW OR
INTERNATIONAL LAW.  . . . (IN A PROSECUTION FOR WILFULLY REFUSING TO
OBEY AN INDUCTION ORDER, EVIDENCE WITH RESPECT TO BELIEF IS ADMISSIBLE
ONLY TO THE EXTENT IT BEARS UPON THE ISSUE OF INTENT, AS DISTINGUISHED
FROM MOTIVE OR GOOD FAITH."  294 F.SUPP.,AT 519. 

/4/  THE KEY INSTRUCTION WAS GIVEN AS FOLLOWS: 

"THE ONLY QUESTION WHICH AS A MATTER OF LAW A JURY HAS A RIGHT TO
CONSIDER IS WHETHER THE DEFENDANT IF HE FAILED TO PERFORM AN ACT
REQUIRED UNDER THE STATUTE AND REGULATIONS WAS ACTING KNOWINGLY IN THE
SENSE OF WITH MENTAL AWARENESS, (AND) WILFULLY IN THE SENSE OF
INTENTIONALLY AND WITH FREE CHOICE. 

"HE MAY HAVE ALL THE VIEWS HE LIKES OF A POLITICAL, ETHICAL,
RELIGIOUS OR LEGAL NATURE.  THEY MAY BE AS REASONABLE AS SOMETIMES
DISSENTS OF THE SUPREME COURT ARE REASONABLE AND SOMETIMES THE MAJORITY
OPINIONS ARE REASONABLE, BUT AS LONG AS THE LAW STANDS AS IT NOW STANDS
HIS MOTIVATION, HIS GOOD FAITH AND THE LIKE ARE NOT IN THE LEAST
RELEVANT TO THE QUESTION WHETHER HE IS GUILTY OR NOT."  (APP. 193.) 

/5/  DEFENDANT FIRST SUBMITTED A MOTION IN ARREST OF JUDGMENT MARCH
26-- FIVE DAYS AFTER THE TRIAL.  TWO DAYS LATER HE SUBSTITUTED AN
AMENDED MOTION IN ARREST "IN LIEU OF" HIS ORIGINAL MOTION.  THIS FIRST
AMENDED MOTION DIFFERED ONLY IN DETAIL FROM THE ORIGINAL.  BOTH WERE
BASED ON THE JURISDICTIONAL ARGUMENT DESCRIBED IN THE TEXT AND NEITHER
MADE ANY CLAIM BASED ON THE ESTABLISHMENT OR FREE EXERCISE CLAUSE. 

/6/  THE DISTRICT COURT WAS APPARENTLY REFERRED TO SISSON'S PRETRIAL
"OFFER (OF) EVIDENCE" WITH REFERENCE TO SISSON'S "RIGHT OF
CONSCIENCE."  SEE SUPRA, AT 273; 294 F.SUPP.,AT 519.  IT DOES NOT
APPEAR THAT ANY CONTENTION BASED ON SISSON'S RIGHT OF CONSCIENCE WAS
RAISED AT TRIAL, OR MADE IN THE MOTION TO ARREST JUDGMENT, SEE SUPRA,
N. 5.  POSSIBLY IN RECOGNITION OF THIS, THE DISTRICT COURT NOTED IN ITS
OPINION THAT "(IT WOULD HAVE BEEN BETTER PRACTICE" FOR SISSON'S
ATTORNEY TO HAVE MADE "A MORE DETAILED REFERENCE" IN HIS MOTION IN
ARREST TO HIS "EARLIER"  ARGUMENTS.  THE COURT STATED THAT "(NO DOUBT,
DEFENDANT WILL SEASONABLY MAKE HIS MOTION IN ARREST EVEN CLEARER."  ON
APRIL 3-- TWO DAYS AFTER THE DISTRICT COURT'S DECISION-- SISSON'S
ATTORNEY MOVED TO AMEND HIS MOTION IN ARREST TO MAKE THE REQUESTED
GROUNDS CONFORM WITH THOSE ALREADY STATED IN THE OPINION.  THE DISTRICT
COURT GRANTED THIS MOTION TO AMEND NUNC PRO TUNC AS OF APRIL 1-- THE
DATE OF ITS OPINION. 

BECAUSE WE CONCLUDE THAT THE DISTRICT COURT'S DECISION WAS NOT IN
FACT ONE ARRESTING JUDGMENT, SEE INFRA, WE HAVE NO OCCASION TO DECIDE
WHETHER THE DISTRICT COURT INCORRECTLY CHARACTERIZED THESE ISSUES AS
HAVING BEEN RAISED BY THE DEFENDANT, AND IF SO, WHETHER THE 1966
AMENDMENT TO FED. RULE CRIM. PROC. 34, REQUIRING THAT A MOTION IN
ARREST OF JUDGMENT BE GRANTED "ON MOTION OF A DEFENDANT," PRECLUDES A
DISTRICT COURT FROM GRANTING SUCH A MOTION ON AN ISSUE NOT RAISED BY
THE DEFENDANT'S MOTION. 

/7/  FOR THE TEXT, SEE N. 20, INFRA. 

IT SHOULD BE NOTED THAT AT THE CONCLUSION OF HIS OPINION, THE
DISTRICT JUDGE STATED THAT HE WAS GRANTING THE MOTION IN ARREST BECAUSE
"(IN THE WORDS OF RULE 34, THE INDICTMENT OF SISSON 'DOES NOT CHARGE AN
OFFENSE.'"  HE THEN STATED IN CONCLUSORY TERMS THAT HIS DECISION WAS
ONE "'ARRESTING A JUDGMENT OF CONVICTION FOR INSUFFICIENCY OF THE
INDICTMENT . . . (WHICH) IS BASED UPON THE INVALIDITY . . . OF THE
STATUTE UPON WHICH THE INDICTMENT . . . IS FOUNDED'" FOR PURPOSES OF 18
U.S.C. 3731, AND THAT THE GOVERNMENT COULD THEREFORE TAKE A DIRECT
APPEAL TO THIS COURT. 

THE LABEL ATTACHED BY THE DISTRICT COURT TO ITS OWN OPINION DOES
NOT, OF COURSE, DECIDE FOR US THE JURISDICTIONAL ISSUE, HOWEVER.  "WE
MUST BE GUIDED IN DETERMINING THE QUESTION OF APPEALABILITY OF THE
TRIAL COURT'S ACTION NOT BY THE NAME THE COURT GAVE (ITS DECISION) BUT
BY WHAT IN LEGAL EFFECT IT ACTUALLY WAS," UNITED STATES V. WATERS, 84
U.S.APP.D.C. 127, 128, 175 F.2D 340, 341, APPEAL DISMISSED ON
GOVERNMENT'S MOTION, 335 U.S. 869 (1948); UNITED STATES V. ZISBLATT,
172 F.2D 740, 742 (C.A. 2D CIR.), APPEAL DISMISSED ON GOVERNMENT'S
MOTION, 336 U.S. 934 (1949); SEE UNITED STATES V. HARK, 320 U.S. 531,
536 (1944); UNITED STATES V. BLUE, 384 U.S. 251, 254 (1966). 

/8/  ALTHOUGH ALL THREE CONDITIONS MUST BE MET FOR THE GOVERNMENT TO
APPEAL A CASE DIRECTLY TO THIS COURT, AS LONG AS THE FIRST REQUIREMENT
IS MET THE GOVERNMENT CAN APPEAL TO A COURT OF APPEALS UNDER A SEPARATE
PROVISION OF SEC. 3731 ALLOWING AN APPEAL "(FROM A DECISION ARRESTING A
JUDGMENT OF CONVICTION EXCEPT WHERE A DIRECT APPEAL TO THE SUPREME
COURT OF THE UNITED STATES IS PROVIDED.  . . . "     /9/  IT IS
ARGUABLE THAT THE THIRD REQUIREMENT IS NOT MET SINCE THE DISTRICT
COURT'S DECISION WAS NOT "BASED UPON THE INVALIDITY OR CONSTRUCTION" OF
50 U.S.C. APP. 462(A) (1964 ED., SUPP. IV)-- THE STATUTORY PROVISION
"UPON WHICH THE INDICTMENT . . . IS FOUNDED."  AS A MATTER OF SOUND
CONSTRUCTION, HOWEVER, "STATUTE UPON WHICH THE INDICTMENT . . . IS
FOUNDED" SHOULD BE READ TO INCLUDE THE ENTIRE STATUTE, AND NOT SIMPLY
THE PENALTY PROVISIONS.  SEE UNITED STATES V. SOCONY MOBIL OIL CO., 252
F.2D 420 (C.A. 1ST CIR.), APPEAL DISMISSED PER STIPULATION, 356 U.S.
925 (1958); CF. UNITED STATES V. MERSKY, 361 U.S. 431 (1960); SEE ALSO
FRIEDENTHAL, GOVERNMENT APPEALS IN FEDERAL CRIMINAL CASES, 12
STAN.L.REV.  71, 75 (1959). 

/10/  IN EARLY DAYS THE "FACE OF THE RECORD" SIMPLY INCLUDED THE
MATERIAL FOUND ON THE "JUDGMENT ROLL."  SEE UNITED STATES V. ZISBLATT,
172 F.2D, AT 742.  IN A CRIMINAL CASE TODAY IT HAS BEEN THOUGHT TO
INCLUDE "NO MORE THAN THE INDICTMENT, THE PLEA, THE VERDICT . . . AND
THE SENTENCE."  UNITED STATES V. BRADFORD, 194 F.2D 197, 291 (C.A. 2D
CIR.), CERT. DENIED, 343 U.S. 979 (1952). 

/11/  THIS COURT FIRST RECOGNIZED THE EXISTENCE OF MOTIONS IN ARREST
OF JUDGMENT IN UNITED STATES V. CANTRIL, 4 CRANCH 167 (1807). 

/12/  FED. RULE CRIM. PROC. 34 PROVIDES: 

"THE COURT ON MOTION OF A DEFENDANT SHALL ARREST JUDGMENT IF THE
INDICTMENT OR INFORMATION DOES NOT CHARGE AN OFFENSE OR IF THE COURT
WAS WITHOUT JURISDICTION OF THE OFFENSE CHARGED.  THE MOTION IN ARREST
OF JUDGMENT SHALL BE MADE WITHIN 7 DAYS AFTER VERDICT OR FINDING OF
GUILTY, OR AFTER PLEA OF GUILTY OR NOLO CONTENDERE, OR WITHIN SUCH
FURTHER TIME AS THE COURT MAY FIX DURING THE 7-DAY PERIOD." 

/13/  UNITED STATES V. ZISBLATT, SUPRA, AT 742. 

/14/  UNITED STATES V. LIAS, SUPRA, AT 687. 

/15/  NONE OF THE CASES RELIED ON BY THE GOVERNMENT EVEN HINTS THAT
EVIDENCE PRESENTED AT THE TRIAL CAN BE THE BASIS FOR A MOTION IN ARREST
OF JUDGMENT.  IN UNITED STATES V. GREEN, 350 U.S. 415 (1956), THERE WAS
NO DISAGREEMENT BETWEEN THE MAJORITY AND DISSENTERS ON THE RULE THAT
DIRECT REVIEW IS IMPOSSIBLE IF THE DECISION BELOW IS BASED UPON FACTS
ARISING FROM THE TRIAL.  INSTEAD THE MAJORITY AND DISSENT SIMPLY
DISAGREED AS TO WHETHER THE DISTRICT COURT'S DECISION HAD RELIED ON
EVIDENCE AT THE TRIAL.  COMPARE THE MAJORITY OPINION, 350 U.S.,AT 418
AND 421, WITH THE DISSENT, 350 U.S.,AT 421.  IN UNITED STATES V.
BRAMBLETT, 348 U.S. 503 (1955), ALSO CITED BY THE GOVERNMENT, THE
INDICTMENT SPECIFIED THAT THE APPELLEE HAD MADE A FRAUDULENT CLAIM
AGAINST THE DISBURSING OFFICE OF THE HOUSE OF REPRESENTATIVES IN
VIOLATION OF 18 U.S.C. 1001 WHICH FORBIDS THE WILLFUL FALSIFICATION OF
ANY MATERIAL STATEMENT "IN ANY MATTER WITHIN THE JURISDICTION OF ANY
DEPARTMENT OR AGENCY OF THE UNITED STATES."  THE DISTRICT COURT
ARRESTED JUDGMENT ON THE GROUND THAT THE HOUSE DISBURSING OFFICE WAS
NOT A "DEPARTMENT OR AGENCY" FOR PURPOSES OF THE STATUTE, AND ON APPEAL
THIS COURT REVERSED.  NEITHER THE DISTRICT COURT NOR THIS COURT RELIED
IN ANY WAY UPON THE EVIDENCE SUBMITTED AT THE TRIAL IN DETERMINING THE
SCOPE OF THE STATUTORY PHRASE "DEPARTMENT OR AGENCY" FOUND IN 18 U.S.C.
1001.  FINALLY, THE GOVERNMENT REFERS TO UNITED STATES V. WATERS, 84
U.S.APP.D.C. 127, 175 F.2D 340 (1948).  IN THAT CASE THE DISTRICT COURT
HELD AN INDICTMENT DID NOT CHARGE AN OFFENSE BECAUSE IT ALLEGED ONLY
THAT THE APPELLEE WAS CARRYING A GUN, AND NOT THAT HE WAS CARRYING A
GUN WITHOUT A LICENSE.  HOWEVER, THE DISTRICT COURT CALLED ITS OPINION
THE GRANT OF A MOTION OF ACQUITTAL.  THE UNITED STATES APPEALED TO THE
COURT OF APPEALS WHICH HELD THAT THE DECISION WAS A MOTION IN ARREST,
STATING THAT THE "QUESTION OF APPEALABILITY" TURNED NOT ON "THE NAME
THE (DISTRICT) COURT GAVE (THE DECISION) BUT BY WHAT IN LEGAL EFFECT IT
ACTUALLY WAS."  THE COURT OF APPEALS THEN CERTIFIED THE CASE TO THIS
COURT, SINCE IT FELT THE MOTION IN ARREST INVOLVED AN "INTERPRETATION"
OF THE UNDERLYING STATUTE, BUT THE APPEAL WAS DISMISSED ON THE MOTION
OF THE UNITED STATES, 335 U.S. 869 (1948). 

/16/  THE FACTUAL DETERMINATIONS WOULD ALSO APPEAR ESSENTIAL FOR THE
DISTRICT COURT'S ALTERNATIVE GROUND OF DECISION BASED ON THE
ESTABLISHMENT CLAUSE.  THAT HOLDING RESTS NECESSARILY UPON THE FINDING
THAT SISSON, THOUGH NONRELIGIOUS, "WAS AS GENUINELY AND PROFOUNDLY
GOVERNED BY HIS CONSCIENCE AS WOULD HAVE BEEN A MARTYR OBEDIENT TO AN
ORTHODOX RELIGION."  WITHOUT THIS FINDING, SISSON WOULD HAVE NO
STANDING TO ASSERT THE UNDERINCLUSIVENESS OF SEC. 6(J) OF THE ACT AS A
DEFENSE TO HIS PROSECUTION.  WHETHER FACTUAL DETERMINATIONS MADE ONLY
FOR PURPOSES OF DECIDING QUESTIONS OF STANDING, PARTICULARLY IF MADE
BEFORE TRIAL, WOULD OFFEND THE REQUIREMENTS THAT MOTIONS IN ARREST MUST
BE BASED ON ERRORS ON THE FACE OF THE RECORD IS AN ISSUE INAPPROPRIATE
FOR DECISION IN THIS CASE.  BECAUSE OF OUR DETERMINATION THAT THE
DISTRICT COURT'S FREE EXERCISE HOLDING WAS IN EFFECT AN ACQUITTAL,
THERE IS NO NEED TO DECIDE WHETHER THE ALTERNATIVE ESTABLISHMENT CLAUSE
RULING WOULD BE APPEALABLE IF IT STOOD ALONE. 

/17/  COMPARE 50 U.S.C. APP. 462(A) (1964 ED., SUPP. IV) WITH THE
ALLEGATIONS OF THE INDICTMENT: 

"THAT ON OR ABOUT APRIL 17, 1968, AT BOSTON, IN THE DISTRICT OF
MASSACHUSETTS, JOHN HEFFRON SISSON, JR., OF LINCOLN, IN THE DISTRICT OF
MASSACHUSETTS DID UNLAWFULLY, KNOWINGLY AND WILFULLY FAIL AND NEGLECT
AND REFUSE TO PERFORM A DUTY REQUIRED OF HIM UNDER AND IN THE EXECUTION
OF THE MILITARY SELECTIVE SERVICE ACT OF 1967 AND THE RULES,
REGULATIONS AND DIRECTIONS DULY MADE PURSUANT THERETO, PARTICULARLY 32
CODE OF FEDERAL REGULATIONS 1632.14, IN THAT HE DID FAIL AND NEGLECT
AND REFUSE TO COMPLY WITH AN ORDER OF HIS LOCAL DRAFT BOARD TO SUBMIT
TO INDUCTION INTO THE ARMED FORCES OF THE UNITED STATES; IN VIOLATION
OF TITLE 50, APPENDIX, U.S.C.  SECTION 462." 

/18/  THIS PRINCIPLE WOULD DICTATE THAT AFTER THIS JURISDICTIONAL
DISMISSAL, SISSON MAY NOT BE RETRIED. 

/19/  OUR CONCLUSION DOES NOT, AS SUGGESTED IN DISSENT, POST, AT 327
(DISSENTING OPINION OF MR. JUSTICE WHITE), REST ON THE FACT THE
DISTRICT COURT "MIGHT HAVE" SENT THE CASE TO THE JURY ON THE
INSTRUCTION REFERRED TO IN THE TEXT, BUT INSTEAD ON WHAT IT DID DO--
I.E., RENDER A LEGAL DETERMINATION ON THE BASIS OF FACTS ADDUCED AT THE
TRIAL RELATING TO THE GENERAL ISSUE OF THE CASE, SEE, INFRA, AT 301. 
NEITHER DISSENTING OPINION EXPLAINS WHAT "LARGE AND CRITICAL"
DIFFERENCE, POST, AT 329, EXISTS BETWEEN ITS EXPANSIVE NOTION OF WHAT
CONSTITUTES A DECISION ARRESTING JUDGMENT AND A POST-VERDICT ACQUITTAL
ENTERED BY THE JUDGE AFTER THE JURY HAS RETURNED A VERDICT OF GUILTY
PURSUANT TO FED. RULE CRIM. PROC. 29. 

WE THINK UNTENABLE THE VIEW OF MR. JUSTICE WHITE THAT UNDER THE
PRINCIPLES OF THIS OPINION TODAY THE "COURT SHOULD NOT HAVE HAD
JURISDICTION IN UNITED STATES V. COVINGTON," 395 U.S. 57 (1969), ON THE
GROUND THAT THE PRETRIAL DISMISSAL IN THAT CASE "WOULD AMOUNT TO AN
ACQUITTAL BECAUSE THE JUDGE MIGHT HAVE GIVEN THE CASE TO THE JURY UNDER
INSTRUCTIONS THAT IT SHOULD ACQUIT IF IT FOUND THE FACTS NECESSARY TO
SUSTAIN THE DEFENDANT'S PRIVILEGE-- E.G., THAT HE WAS NOT ONE OF THE
REGISTERED MARIHUANA DEALERS WHOSE CONDUCT WAS LEGAL UNDER STATE LAW,"
POST, AT 327.  AS WE NOTE, INFRA, N. 56, WHAT THE DISTRICT COURT DID DO
IN COVINGTON WAS TO DISMISS AN INDICTMENT BEFORE TRIAL WITHOUT ANY
EVIDENTIARY HEARING.  MOREOVER, IN DISPOSING OF THE GOVERNMENT'S
CONTENTIONS ON THE MERITS, THIS COURT HELD THAT THERE WAS NO NEED IN
THAT CASE FOR A PRETRIAL EVIDENTIARY HEARING ON THE DEFENDANT'S MOTION
TO DISMISS (MUCH LESS A NEED TO SUBMIT ANY FACTUAL ISSUE TO A JURY)
BECAUSE (1) "THERE IS NO POSSIBILITY OF ANY FACTUAL ISSUE TO A JURY)
BECAUSE (1) "THERE IS NO POSSIBILITY OF ANY FACTUAL DISPUTE WITH REGARD
TO THE HAZARD OF INCRIMINATION"; AND (2) "THE GOVERNMENT (HAD) NEVER
ALLEGED THE EXISTENCE OF A FACTUAL CONTROVERSY" CONCERNING APPELLEE'S
NONWAIVER OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION, 395 U.S.,AT 61. 

/20/  THE STATUTE PROVIDES, IN PERTINENT PART: 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED STATES IN
ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES: 

"FROM A DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING ANY
INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF, WHERE SUCH DECISION OR
JUDGMENT IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED. 

"FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION FOR
INSUFFICIENCY OF THE INDICTMENT OR INFORMATION, WHERE SUCH DECISION IS
BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE
INDICTMENT OR INFORMATION IS FOUNDED. 

"FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY." 

THE STATUTE GOES ON TO PROVIDE FOR (1GOVERNMENT APPEALS TO THE
COURTS OF APPEALS FOR ALL OTHER DECISIONS (A) SETTING ASIDE OR
DISMISSING INDICTMENTS, OR (B) ARRESTING JUDGMENTS; (C) GRANTING A
PRETRIAL SUPPRESSION MOTION; (2) RELEASE ON BAIL; (3) TRANSFER OF CASES
FROM THIS COURT TO A COURT OF APPEALS OR VICE VERSA WHEN AN APPEAL HAS
ERRONEOUSLY BEEN TAKEN TO THE WRONG COURT. 

/21/  34 STAT. 1246 PROVIDED IN PERTINENT PART: 

" . . . THAT A WRIT OF ERROR MAY BE TAKEN BY AND ON BEHALF OF THE
UNITED STATES FROM THE DISTRICT OR CIRCUIT COURTS DIRECT TO THE SUPREME
COURT OF THE UNITED STATES IN ALL CRIMINAL CASES, IN THE FOLLOWING
INSTANCES, TO WIT: 

"FROM A DECISION OR JUDGMENT QUASHING, SETTING ASIDE, OR SUSTAINING
A DEMURRER TO, ANY INDICTMENT, OR ANY COUNT THEREOF, WHERE SUCH
DECISION OR JUDGMENT IS BASED UPON THE INVALIDITY, OR CONSTRUCTION OF
THE STATUTE UPON WHICH THE INDICTMENT IS FOUNDED. 

"FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION FOR
INSUFFICIENCY OF THE INDICTMENT, WHERE SUCH DECISION IS BASED UPON THE
INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT IS
FOUNDED. 

"FROM THE DECISION OR JUDGMENT SUSTAINING A SPECIAL PLEA IN BAR,
WHEN THE DEFENDANT HAS NOT BEEN PUT IN JEOPARDY." 

/22/  BETWEEN 1907 AND THE PRESENT DAY, CONGRESS HAS AMENDED THE ACT
SEVERAL TIMES.  THESE INCLUDE A 1948 AMENDMENT THAT BROUGHT THE
PROCEDURAL VOCABULARY OF THE STATUTE INTO FORMAL CONFORMITY WITH THE
FEDERAL RULES OF CRIMINAL PROCEDURE, 62 STAT. 844.  ALTHOUGH "SPECIAL
PLEA IN BAR" THUS BECAME "MOTION IN BAR," AND "DECISION . . . QUASHING
. . . OR SUSTAINING A DEMRURER TO, ANY INDICTMENT" BECAUSE "DECISION .
. . DISMISSING ANY INDICTMENT," THE REVISER'S NOTES PLAINLY SHOW THAT
THIS AMENDMENT WAS NOT MEANT TO CHANGE THE ACT'S COVERAGE, H.R. REP.
NO. 304, 80TH CONG., 1ST SESS., A177; SEE UNITED STATES V. APEX
DISTRIBUTING CO., 270 F.2D 747, 755 (C.A. 9TH CIR. 1959). 

A 1942 AMENDMENT DID INCREASE THIS COURT'S JURISDICTION UNDER THE
ACT BY INCLUDING CASES INVOLVING INFORMATIONS AS WELL AS INDICTMENTS,
56 STAT. 271.  OTHER AMENDMENTS HAVE (1) ABOLISHED REVIEW BY WRIT OF
ERROR AND SUBSTITUTED THE RIGHT OF APPEAL, 45 STAT. 54 (1928); (2)
GIVEN THE COURTS OF APPEALS JURISDICTION FOR APPEALS FROM DECISIONS IN
THE SAME COMMON-LAW CATEGORIES AS THOSE ORIGINALLY PROVIDED, BUT WHICH
DO NOT INVOLVE THE CONSTRUCTION OR VALIDITY OF THE UNDERLYING STATUTE,
56 STAT. 271. 

/23/  SEE THE ATTORNEY GENERAL'S ANNUAL REPORTS FOR 1892, PP. XXIV
XXV; FOR 1893, P. XXVI; FOR 1894, P. XXIX; FOR 1899, P. 33; FOR 1900,
P. 40; FOR 1903, P. VI; FOR 1905, P. 10; FOR 1906, P. 4.  SEE GENERALLY
KURLAND, THE MERSKY CASE AND THE CRIMINAL APPEALS ACT:  A SUGGESTION
FOR AMENDMENT OF THE STATUTE, 28 U.CHI.L.REV.  419, 446-449 (1961); F.
FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT 114-117
(1928). 

/24/  1892 RE. ATTY. GEN. XXIV. 

/25/  UNITED STATES V. ARMOUR & CO., 142 F. 808 (D.C.N.D. ILL.
1906). 

/26/  SEE FRANKFURTER & LANDIS, SUPRA, N. 23, AT 117; KURLAND,
SUPRA, N. 23, AT 449. 

/27/  41 CONG.REC.  22. 

/28/  KURLAND, SUPRA, N. 23, AT 450. 

/29/  40 CONG.REC.  5408. 

/30/  THE TEXT OF THE HOUSE BILL APPEARS AT 40 CONG.REC.  5408.  IT
GAVE THE UNITED STATES THE SAME RIGHT OF REVIEW BY WRIT OF ERROR AS WAS
THEN ACCORDED A CRIMINAL DEFENDANT, BUT FURTHER PROVIDED THAT IF ON
APPEAL ANY ERROR WERE FOUND, THE DEFENDANT SHOULD RETAIN THE ADVANTAGE
OF ANY VERDICT IN HIS FAVOR.  WITH NEITHER DEBATE NOR A DIVISION, THE
BILL PASSED THE HOUSE ON APRIL 17, 1906.  IBID. 

/31/  SEE S. REP. NO. 3922, 59TH CONG., 1ST SESS. (1906). 

/32/  SEE 40 CONG.REC.  9033. 

/33/  ID., AT 9122. 

/34/  41 CONG.REC.  1865; S. REP. NO. 5650, 59TH CONG., 2D SESS.
(1907). 

/35/  41 CONG.REC.  2190-2197; 2744-2763; 2818-2825. 

/36/  ID., AT 2194. 

/37/  ID., AT 2195-2197. 

/38/  SEE ID., AT 2749-2762. 

/39/  SEE ID., AT 2819. 

/40/  SEE ID., AT 2752. 

/41/  WHEN ASKED WHETHER THE SUBSTANCE OF HIS AMENDMENT WAS THAT
THERE WAS TO BE NO APPEAL AND RETRIAL AFTER THE DEFENDANT HAD BEEN
"ACQUITTED BY THE VERDICT OF A JURY," THE SPONSOR OF THE AMENDMENT,
SENATOR RAYNER, STATED:  "I HAVE IN THE AMENDMENT NO SUCH WORDS AS
'ACQUITTED BY THE JURY.'  I HAVE NOTHING TO DO WITH THE JURY.  HE MAY
BE ACQUITTED BY A MAGISTRATE . . . I DO NOT CARE BY WHAT TRIBUNAL HE IS
ACQUITTED.  . . . "  ID., AT 2749. 

/42/  SEE INFRA, AT 302-307. 

/43/  SEE 41 CONG.REC.,AT 2822, 2823. 

/44/  ID., AT 2834. 

/45/  ID., AT 3044-3047. 

/46/  ID., AT 3647. 

/47/  SEE H.R. REP. NO. 8113, 59TH CONG., 2D SESS. 

/48/  41 CONG.REC.  3994, 4128. 

/49/  IT APPEARS THAT THE DISSENTERS HAVE NOT ONLY "OUTGROWN" THE
STATUTORY LIMITATIONS OF A "DECISION ARRESTING A JUDGMENT" FOR PURPOSES
OF SEC. 3731, BUT ALSO THE LIMITATIONS OF RULE 34. 

/50/  PROFESSOR KURLAND CHARACTERIZED THE STATUTE AS "A COMPROMISE
AMONG SEVERAL DIVERGENT FORCES.  THE DIVERSION IN THE SENATE WAS
PRIMARILY BETWEEN THOSE WHO WANTED LIMITED REVIEW AND THOSE WHO WANTED
NONE.  THE DIVISION BETWEEN THE HOUSE AND SENATE WAS BETWEEN THOSE WHO
WANTED COMPLETE REVIEW AND THOSE WHO WANTED LIMITED REVIEW."  KURLAND,
SUPRA, N. 23, AT 454.     /51/  SEE, E.G., 1907 REP.ATTY.GEN.  4.  SEE
INFRA, AT 306. 

/52/  SEE 396 U.S. 812 (1969). 

/53/  AT COMMON LAW, A SPECIAL PLEA IN BAR WAS ORDINARILY USED TO
RAISE THREE DEFENSES-- AUTREFOIS ACQUIT, AUTREFOIS CONVICT, AND PARDON-
AND THERE IS LANGUAGE IN SOME OF OUR CASES THAT INDICATES THAT, APART
FROM THESE DEFENSES, A PLEA IN BAR WAS NOT APPROPRIATE "TO SINGLE OUT
FOR DETERMINATION IN ADVANCE OF TRIAL MATTERS OF DEFENSE EITHER ON
QUESTIONS OF LAW OR FACT," UNITED STATES V; MURDOCK, 284 U.S. 141, 151
(1931).  THERE ARE CASES CONSISTENT WITH THE NARROW COMMON-LAW
DEFINITION THAT INDICATE, FOR EXAMPLE, THAT A DEFENSE BASED UPON THE
STATUTE OF LIMITATIONS COULD NOT BE RAISED BY A "SPECIAL PLEA IN BAR,"
UNITED STATES V. KISSLE, 218 U.S. 601, 610 (1910); UNITED STATES V.
BARBER, 219 U.S. 72, 78-79 (1911).  ON THE OTHER HAND, IT APPEARS THE
COURT ACCEPTED JURISDICTION UNDER SEC. 3731, IN APPEALS FROM DECISIONS
GRANTING SPECIAL PLEAS IN BAR BASED ON A STATUTE OF LIMITATIONS
DEFENSE, WITH NO EXPLANATION OF THE APPARENT INCONSISTENCY.  SEE UNITED
STATES V. GOLDMAN, 277 U.S. 229, 236-237 (1928); SEE ALSO UNITED STATES
V. RABINOWICH, 238 U.S. 78 (1915).  AND, IN UNITED STATES V. MERSKY,
361 U.S. 431 (1960), THERE WAS NO DECISION OF THE COURT ON WHAT WAS A
MOTION IN BAR, AND THE CONCURRING OPINION OF MR. JUSTICE BRENNAN AND
THE DISSENTING OPINION OF MR. JUSTICE STEWART INDICATED DISAGREEMENT ON
THIS ISSUE.  COMPARE 361 U.S.,AT 441-443 WITH ID., AT 455-458.  TO ADD
TO THE UNCERTAINTY, ARGUABLY IN UNITED STATES V. MURDOCK, SUPRA, AND
CERTAINLY IN UNITED STATES V. BLUE, 384 U.S. 251, 253-254 (1966), AND
UNITED STATES V. COVINGTON, 395 U.S. 57, 59 N. 2 (1969), THE COURT TOOK
JURISDICTION AND CONSIDERED THE MERITS OF APPEALS FROM DISTRICT COURT
DISMISSALS BASED ON SELF-INCRIMINATION DEFENSES ON THE GROUND THAT THE
DECISIONS BELOW HAD SUSTAINED MOTIONS IN BAR FOR PURPOSES OF THE
CRIMINAL APPEALS ACT-- EVEN THOUGH MURDOCK ITSELF STATED THAT THIS
DEFENSE IS NOT APPROPRIATELY RAISED BY A SPECIAL PLEA IN BAR.  284
U.S.,AT 151. 

/54/  IN UNITED STATES V. MERSKY, 361 U.S. 431 (1960), THERE WAS NO
DECISION OF THE COURT CONCERNING WHAT APPROACH SHOULD BE TAKEN.  MR.
JUSTICE BRENNAN SUGGESTED THAT THE CATEGORY INCLUDE ANY DECISION THAT
BARRED REPROSECUTION IF UPHELD, ID., AT 441-443, WHILE MR. JUSTICE
STEWART THOUGHT THE PROVISION SHOULD BE CONFINED TO THOSE DECISIONS
THAT WOULD FALL WITHIN THE COMPASS OF THE COMMON LAW "SPECIAL PLEA IN
BAR," ID., AT 455-458.  SEE GENERALLY KURLAND, SUPRA, N. 23. 

/55/  THE DISMISSAL PROVISION OF FED. RULE CRIM. PROC. 12, WHICH MR.
JUSTICE BRENNAN IN HIS MERSKY CONCURRENCE SAW AS HAVING "SWEPT AWAY THE
OLD PLEAS," 361 U.S.,AT 442, ITSELF LIMITS A DISMISSAL TO THOSE
DEFENSES "CAPABLE OF DETERMINATION WITHOUT THE TRIAL OF THE GENERAL
ISSUE," FED. RULE CRIM. PROC. 12(B)(1). 

/56/  NOWHERE DOES UNITED STATES V. COVINGTON, SUPRA, SUGGEST, AS
ARGUED IN DISSENT, THAT THERE MIGHT BE JURISDICTION UNDER THE MOTION-IN
BAR PROVISION OF SEC. 3731 IN CIRCUMSTANCES WHERE THE PARTIES "TRIED)
FACTS TO THE JUDGE THAT WERE RELEVANT TO THE MOTION IN BAR, AND
SEPARATE FROM THE GENERAL ISSUE," POST, AT 332 (DISSENTING OPINION OF
MR. JUSTICE WHITE).  OUR BROTHER WHITE REACHES THIS CONCLUSION BY
TAKING A QUOTATION FROM COVINGTON OUT OF CONTEXT, AND CONFUSING THAT
OPINION'S DISPOSITION OF THE MERITS OF THE GOVERNMENT'S APPEAL WITH THE
COURT'S JURISDICTIONAL HOLDING. 

IN COVINGTON, THE DISTRICT COURT, BEFORE TRIAL WITHOUT ANY
EVIDENTIARY HEARING, DISMISSED AN INDICTMENT BOTTOMED ON THE MARIHUANA
TAX ACT, 26 U.S.C. 4744(A)(1), ON THE GROUND THAT THE "PRIVILEGE
AGAINST SELF-INCRIMINATION NECESSARILY WOULD PROVIDE A COMPLETE DEFENSE
TO THE PROSECUTION," ID., AT 58.  THE GOVERNMENT APPEALED, CLAIMING THE
COURT HAD JURISDICTION UNDER BOTH THE DISMISSAL AND THE MOTION-IN-BAR
PROVISIONS OF SEC. 3731.  THE COURT FOUND JURISDICTION IN THE
ALTERNATIVE UNDER EITHER PROVISION.  THE ONLY DISCUSSION OF THE MOTION
IN-BAR JURISDICTIONAL ISSUE, FOUND IN A FOOTNOTE, WAS AS FOLLOWS:  "IF
THE DISMISSAL RESTED ON THE GROUND THAT THE FIFTH AMENDMENT PRIVILEGE
WOULD BE A DEFENSE, THEN THE DECISION WAS ONE 'SUSTAINING A MOTION IN
BAR.'  SEE UNITED STATES V. MURDOCK, 284 U.S. 141 (1931)," 395 U.S.,AT
59 N. 2. 

HAVING THUS DISPOSED OF THE JURISDICTIONAL ISSUE, THE COURT
PROCEEDED TO THE MERITS OF THE GOVERNMENT'S APPEAL AND, INTER ALIA,
CONSIDERED "WHETHER SUCH A PLEA OF THE PRIVILEGE (AGAINST SELF
INCRIMINATION) MAY EVER JUSTIFY DISMISSAL OF AN INDICTMENT, AND IF SO
WHETHER THIS IS SUCH AN INSTANCE," ID., AT 60.  IN THIS CONTEXT THE
COURT SAID: 

"FEDERAL RULE OF CRIMINAL PROCEDURE 12(B)(1) STATES THAT:  'ANY
DEFENSE OR OBJECTION WHICH IS CAPABLE OF DETERMINATION WITHOUT THE
TRIAL OF THE GENERAL ISSUE MAY BE RAISED BEFORE TRIAL BY MOTION.'  A
DEFENSE IS THUS 'CAPABLE OF DETERMINATION' IF TRIAL OF THE FACTS
SURROUNDING THE COMMISSION OF THE ALLEGED OFFENSE WOULD BE OF NOT
ASSISTANCE IN DETERMINING THE VALIDITY OF THE DEFENSE.  RULE 12(B)(4)
ALLOWS THE DISTRICT COURT IN ITS DISCRETION TO POSTPONE DETERMINATION
OF THE MOTION TO TRIAL, AND PERMITS FACTUAL HEARINGS PRIOR TO TRIAL IF
NECESSARY TO RESOLVE ISSUES OF FACT PECULIAR TO THE MOTION."  ID., AT
60. 

TAKEN IN FULL CONTEXT, THE QUOTATION USED BY MR. JUSTICE WHITE,
POST, AT 332, PLAINLY HAD REFERENCE TO A DISTRICT COURT'S POWER UNDER
FED. RULE CRIM. PROC. 12 TO DISMISS AN INDICTMENT, AND NOTHING
WHATSOEVER TO DO WITH THE QUITE DISTINCT ISSUE OF THE SCOPE OF THE
JURISDICTIONAL PROVISIONS OF SEC. 3731. 

THAT THE COURT WAS THERE CONCERNED WITH ONLY THE MERITS OF APPEAL IS
CLEAR FROM WHAT FOLLOWS.  AFTER SUGGESTING THAT IN MOST CIRCUMSTANCES A
MOTION TO DISMISS AN INDICTMENT BROUGHT UNDER 26 U.S.C. 4744 WOULD NOT
REQUIRE ANY FACTUAL INQUIRY, THE COURT STATED THAT ONCE A DEFENDANT
ASSERTED HIS PRIVILEGE A TRIAL COURT SHOULD DISMISS THE INDICTMENT
WITHOUT AN EVIDENTIARY HEARING "UNLESS THE GOVERNMENT CAN REBUT THE
PRESUMPTION (OF NONWAIVER OF THE PRIVILEGE) BY SHOWING A NEED FOR
FURTHER FACTUAL INQUIRIES."  ID., AT 61.  IN APPLYING THAT PRINCIPLE TO
THE MERITS OF THE CASE BEFORE IT, THE COURT AFFIRMED THE DISTRICT
COURT'S ACTION BELOW BECAUSE:  (1) "THERE (WAS) NO POSSIBILITY OF ANY
FACTUAL DISPUTE WITH REGARD TO THE HAZARD OF INCRIMINATION"; AND (2)
"THE GOVERNMENT HAS NEVER ALLEGED THE EXISTENCE OF A FACTUAL
CONTROVERSY" CONCERNING THE ISSUE OF WHETHER "APPELLEE (HAD) WAIVED HIS
PRIVILEGE."  IBID. 

THE COURT IN COVINGTON DID NOT SAY THAT A DEFENSE BASED ON THE
PRIVILEGE AGAINST SELF-INCRIMINATION WHERE THERE WERE FACTS IN DISPUTE
COULD, IN ALL CASES, BE DECIDED WITHOUT CONSIDERATION OF THE GENERAL
ISSUE.  AND, MORE IMPORTANTLY FOR PRESENT PURPOSES, NOWHERE DOES THE
OPINION IN COVINGTON EVEN HINT THAT A DISMISSAL REQUIRING A PRETRIAL
EVIDENTIARY HEARING, OR A DISMISSAL MOTION PROPERLY DEFERRED TO THE
TRIAL OF THE GENERAL ISSUE WOULD BE APPEALABLE UNDER THE MOTION-IN-BAR
PROVISION OF THE CRIMINAL APPEALS ACT.  THE COURT IN COVINGTON HAD NO
SUCH JURISDICTIONAL ISSUES BEFORE IT, AND THE OPINION DOES NOT DISCUSS
SUCH ISSUES. 

/57/  SEE 40 CONG.REC.  9033.  IN THIS EXCHANGE, SENATOR SPOONER
SAID:  "I UNDERSTAND THIS (BILL) APPLIES ONLY TO QUESTIONS WHICH ARISE
BEFORE THE IMPANELING OF THE JURY."  SENATOR NELSON AGREED THAT THE
BILL WAS SO LIMITED, AND OBVIOUSLY THINKING HE WAS SAYING THE SAME
THING, SAID THE BILL APPLIED ONLY "(WHERE THE PARTY HAS NOT BEEN PUT IN
JEOPARDY."  AFTER BEING REMINDED OF THE ARREST-OF-JUDGMENT PROVISION,
SENATOR NELSON ACKNOWLEDGED THAT THIS WAS AN EXCEPTION, BUT OBVIOUSLY
TRYING TO MINIMIZE THE SCOPE OF THE EXCEPTION HE POINTED OUT THAT THE
ONLY MOTIONS IN ARREST OF JUDGMENT THAT COULD BE APPEALED WERE THOSE
GRANTED "FOR INSUFFICIENCY OF INDICTMENT; NOT FOR ANY OTHER GROUND." 
IBID. 

SEE 41 CONG.REC.  2191 (SEN. NELSON) ("I WISH TO SAY FURTHER THAT
WHERE A JURY HAS BEEN IMPANELED AND WHERE THE DEFENDANT HAS BEEN TRIED
AN APPEAL DOES NOT LIE"), ID., AT 2748 (SEN. PATTERSON) ("(A) MOTION IN
ARREST OF JUDGMENT . . . IS THE ONLY ONE OF THE THREE CASES IN WHICH
THERE CAN HAVE BEEN A TRIAL.  . . . (IN THE OTHER TWO CASES . . . THE
MOTIONS MUST EX NECESSITATI BE MADE BEFORE JEOPARDY ATTACHES"); ID., AT
2752 (SEN. PATTERSON) ("THESE PROCEEDINGS ARE ALL DEFENDANT'S ACTS
BEFORE A VERDICT TO PREVENT A TRIAL, EXCEPT THE MOTION IN ARREST OF
JUDGMENT, WHICH IS DEFENDANT'S ACT AFTER A VERDICT AGAINST HIM TO
DEFEAT A JUDGMENT ON THE VERDICT"). 

WITHOUT EXPLAINING HIS INCONSISTENCY, SENATOR PATTERSON LATER
EXPRESSED THE VIEW THAT UNDER THE PROPOSED BILL THE GOVERNMENT WOULD
HAVE BEEN ABLE TO APPEAL THE DECISION IN THE FRAMED CHICAGO BEEF TRUST
CASE BECAUSE THE JURY'S VERDICT WAS BASED ON THE "SPECIAL PLEA IN BAR
FILED" IN THAT CASE, NOT ON THE DEFENDANTS' GUILT OR INNOCENCE, ID., AT
2753.  UNDERLYING THIS CONCLUSION-- LATER DISPUTED BY SENATOR NELSON,
SEE ID., AT 2757-- WAS PATTERSON'S EXPECTATION THAT "IN THE CASE OF A
SPECIAL PLEA IN BAR THAT WENT AGAINST THE GOVERNMENT THE DFENDANT HAD
NOT BEEN IN JEOPARDY ON THE MERITS OF THE CASE," ID., AT 2753.  UNLIKE
THE DEFENDANTS IN THE BEEF TRUST CASE-- WHO PATTERSON UNDERSTOOD NOT TO
HAVE BEEN TRIED ON THE GENERAL ISSUE OF THEIR GUILT OR INNOCENCE--
PLAINLY SISSON HAS BEEN PUT "IN JEOPARDY ON THE MERITS OF THE CASE." 
OUR BROTHER WHITE ADMITS AS MUCH, BY SUGGESTING HE COULD NOT BE
RETRIED.  THEREFORE, EVEN UNDER PATTERSON'S BROADER READING OF THE
STATUTE, AN APPEAL WOULD NOT LIE IN THIS CASE. 

/58/  SEE, E.G., 41 CONG.REC.  2745-2763. 

/59/  SEE, E.G., 40 CONG.REC.  9033; 41 CONG.REC.  2192; ID., AT
2751. 

/60/  SEE 41 CONG.REC.  2751 (SEN. KNOX) ("(IF I THOUGHT THERE WAS A
SINGLE LINE, OR A SENTENCE, OR A CLAUSE CONTAINED IN THIS BILL WHICH BY
ANY COURT WOULD BE CONSTRUED TO PLACE A MAN TWICE IN JEOPARDY, I WOULD
VOTE TO CUT IT OUT, NOT BECAUSE THERE WOULD BE ANY NECESSITY FOR
CUTTING IT OUT, AS IT WOULD BE INVALID UNDER THE CONSTITUTION OF THE
UNITED STATES, BUT I WOULD VOTE TO CUT IT OUT UPON THE GROUND THAT IT
WOULD NOT BE AN ARTISTIC AND INTELLIGENT BILL WITH SUCH A PROVISION
WITHIN ITS BORDERS.") 

THE PROVISION GRANTING AN APPEAL FROM A DECISION DISMISSING OR
SETTING ASIDE AN INDICTMENT DOES NOT CONTAIN A SIMILAR PHRASE LIMITING
APPEALS TO CASES WHERE THE DEFENDANT HAS NOT YET BEEN PUT IN JEOPARDY,
BUT WE AGREE WITH THE CONCLUSION REACHED BY THE GOVERNMENT THAT THE
SAME LIMITATION APPLIES.  SEE N. 57, SUPRA. 

/61/  BRIEF 19.  IT SHOULD BE NOTED THAT AT THE GOVERNMENT'S REQUEST
A PROPOSED AMENDMENT TO SEC. 3731 HAS BEEN INTRODUCED IN CONGRESS TO
REMOVE THIS LIMITATION.  THE PROPOSED STATUTE, WHICH AVOIDS COMMON-LAW
TERMINOLOGY, WOULD ALLOW AN APPEAL FROM A DECISION MADE AFTER THE JURY
WAS SWORN IN ALL CASES WHERE THE DOUBLE JEOPARDY CLAUSE WOULD PERMIT
IT.  SEE H.R. 14588, 91ST CONG., 1ST SESS., 115 CONG.REC.  H10274
(DAILY ED. OCT. 29, 1969). 

/62/  SEE 1907 REP. ATTY. GEN. 4; SEE ALSO HEARING ON GRANTING
APPEALS BY THE UNITED STATES FFROM DECISIONS SUSTAINING MOTIONS TO
SUPPRESSS EVIDENCE, BEFORE SUBCOMMITTEE NO. 2 OF THE HOUSE COMMITTEE ON
THE JUDICIARY, 83 CONG.,2D SESS.,SER.  15, P. 11 (1954). 

/63/  MOTIONS IN BAR, FOR EXAMPLE, CAN ONLY BE APPEALED TO THIS
COURT IRRESPECTIVE OF WHETHER THE CASE INVOLVES THE VALIDITY OR
CONSTRUCTION OF A STATUTE. 

/64/  SEE SUPRA, NN. 53-54. 

/65/  SEE, E.G., UNITED STATES V. ZISBLATT, SUPRA; UNITED STATES V.
BRODSON, 234 F.2D 97 (C.A. 7TH CIR. 1956).  SEE GENERALLY FRIEDENTHAL,
SUPRA, N. 9, AT 83-88. 

/66/  TR. OF ORAL ARG. 11. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT OF THE COURT AND PART IIC
OF THE OPINION. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE WHITE JOIN, DISSENTING. 

BOTH THE GOVERNMENT AND SISSON HAVE ARGUED THAT THIS COURT HAS
JURISDICTION TO REVIEW THE DISTRICT COURT'S ACTION BY VIRTUE OF THE
"ARREST OF JUDGMENT" CLAUSE IN THE CRIMINAL APPEALS ACT, 18 U.S.C.
3731, WHICH PROVIDES FOR A DIRECT APPEAL TO THIS COURT 

     "(FROM A DECISION (1) ARRESTING A JUDGMENT OF CONVICTION (2)

  FOR INSUFFICIENCY OF THE INDICTMENT OR INFORMATION, (3) WHERE

  SUCH DECISION IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE

  STATUTE UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED." 

IN REJECTING THE ARGUMENTS OF THE PARTIES THE COURT HOLDS THAT WE
HAVE NO JURISDICTION TO HEAR THIS APPEAL, OPTING FOR THE VIEW THAT THE
"ARREST OF JUDGMENT" CLAUSE CARRIES WITH IT ALL OF ITS COMMON-LAW
ANTECEDENTS AND THAT THE PRESENT CASE DOES NOT MEET THE CRITERIA
REQUIRED BY THE COMMON LAW.  MY DISAGREEMENT WITH THE COURT'S RESULT
AND RATIONALE IS PROMPTED BY A FUNDAMENTAL DISAGREEMENT WITH THE
COURT'S MODE OF ANALYSIS AND ITS EXCESSIVE RELIANCE ON ANCIENT
PRACTICES OF COMMON-LAW ENGLAND LONG SUPERSEDED BY ACTS OF CONGRESS. 

THS COURT:  (1) THE DECISION FROM WHICH THE APPEAL IS TAKEN MUST BE ONE
"ARRESTING A JUDGMENT OF CONVICTION"; (2) THE DECISION MUST BE
ENGENDERED BY THE "INSUFFICIENCY OF THE INDICTMENT OR INFORMATION"; AND
(3) IT MUST BE "BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE
STATUTE UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED." 

    I 

THE FIRST REQUIREMENT, THAT THE DECISION FROM WHICH THE APPEAL IS
TAKEN MUST BE ONE "ARRESTING A JUDGMENT OF CONVICTION," CAN WITHOUT
UNDUE VIOLENCE TO ITS LANGUAGE BE CONSTRUED AS BEING ENCRUSTED WITH THE
LORE OF CENTURIES OF COMMON-LAW JURISPRUDENCE, AND THE COURT HAS SO
CONSTRUED IT.  THE FORM OF AN "ARREST OF JUDGMENT" WAS WELL ESTABLISHED
AT AN EARLY DATE IN THE COMMON LAW'S DEVELOPMENT; BLACKSTONE WAS ABLE
TO DESCRIBE A CLEARLY DEFINED MOTION IN ARREST AS A DEVICE THAT WAS
PROCEDURALLY APPROPRIATE AFTER THE GUILTY VERDICT HAD BEEN RENDERED BUT
BEFORE THE JUDGE HAD IMPOSED SENTENCE.  THE COURT, IN AN EARLY FORM OF
PERMITTING ALLOCUTION, TRADITIONALLY ASKED THE PRISONER IF HE HAD
"ANYTHING TO OFFER WHY JUDGMENT SHOULD NOT BE AWARDED AGAINST HIM."  4
W.BLACKSTONE, COMMENTARIES *375.  THE PRISONER COULD THEN RESPOND BY
OFFERING EXCEPTIONS TO THE INDICTMENT, "AS FOR WANT OF SUFFICIENT
CERTAINTY IN SETTING FORTH EITHER THE PERSON, THE TIME, THE PLACE, OR
THE OFFENCE."  IBID.  IF THE PRISONER WAS SUCCESSFUL, THE COURT ENTERED
AN ARREST OR STAY OF THE JUDGMENT.  ALSO, UNDER THE COMMON LAW, IT WAS
SETTLED THAT "THE COURT OUGHT NOT TO ARREST JUDGMENTS UPON MATTERS NOT
APPEARING UPON THE FACE OF THE RECORD; BUT ARE TO JUDGE UPON THE RECORD
ITSELF, THAT THEIR SUCCESSORS MAY KNOW THE GROUNDS OF THEIR JUDGMENT." 
SUTTON V. BISHOP, 4 BURR.  2283, 2287, 98 ENG.REP.  191, 193 (K.B.
1769).  THE RECORD INCLUDED "NOTHING MORE THAN THE JUDGMENT ROLL; AND
INDEED, THE COMMON-LAW KNEW NOTHING OF THE EVIDENCE TAKEN AT A TRIAL
UNTIL THE STATUTE OF WESTMINSTER ALLOWED EXCEPTIONS TO BE SEALED AND A
BILL OF EXCEPTIONS TO BE BROUGHT UP WITH THE ROLL ON WRIT OF ERROR." 
UNITED STATES V. ZISBLATT, 172 F.2D 740, 741-742 (C.A. 2D CIR.) L.
HAND, C.J.,), APPEAL DISMISSED ON GOVERNMENT'S MOTION, 336 U.S. 934
(1949). 

MUCH, IF NOT ALL, OF THE COMMON-LAW LEARNING WAS TRANSPLANTED TO THE
UNITED STATES.  AS EARLY AS 1807, THE COURT RECOGNIZED THE EXISTENCE OF
THE MOTION IN UNITED STATES V. CANTRIL, 4 CRANCH 167 (1807).  AND, IN
1820, CHIEF JUSTICE MARSHALL STATED FOR THE COURT THAT "JUDGMENT CAN BE
ARRESTED ONLY FOR ERRORS APPARENT ON THE RECORD.  . . . "  UNITED
STATES V. KLINTOCK, 5 WHEAT.  144, 149, (1820).  SEE ALSO CARTER V.
BENNETT, 15 HOW.  354 (1854); BOND V. DUSTIN, 112 U.S. 604 (1884). 

WHETHER SEC. 3731'S REQUIREMENT OF AN ARREST OF JUDGMENT
INCORPORATES THE COMMON-LAW JURISPRUDENCE, OR WHETHER IT IS VIEWED AS
SIMPLY LOOKING TO THE STANDARDS OF RULE 34, FED. RULES CRIM. PROC., /1/
THE COURT HAS INDICATED THAT IT BELIEVES THAT THE DECISION OF THE
DISTRICT COURT HERE WAS NOT ONE "ARRESTING A JUDGMENT" BECAUSE IT WAS
BASED ON EVIDENCE ADDUCED AT THE TRIAL, NOTWITHSTANDING THE PRECISE--
AND I SUGGEST, PURPOSEFUL, DELINEATIONS OF AN ASTUTE DISTRICT JUDGE
QUITE AS FAMILIAR WITH HISTORY AND THE BACKGROUND OF THIS STATUTE AS
ARE WE. 

THE SOLICITOR GENERAL ALSO HAS CONCEDED THAT SEC. 3731 USES THE TERM
"ARREST OF JUDGMENT" IN ITS COMMON-LAW SENSE.  HOWEVER, HE HAS SOUGHT
TO AVOID THE INESCAPABLE IMPLICATIONS OF THIS CONCESSION BY ARGUING
THAT THE DISTRICT COURT, "IN GRANTING APPELLEE'S MOTION, DID NOT BASE
ITS ACTION WHOLLY ON THE ALLEGATIONS OF THE INDICTMENT, BUT USED AS A
PARTIAL PREDICATE FOR ITS CONSTITUTIONAL RULINGS THE UNDISPUTED FACT,
WHICH APPEARED FROM THE EVIDENCE AT TRIAL, THAT APPELLEE IS A NON
RELIGIOUS CONSCIENTIOUS OBJECTOR TO PARTICIPATION IN THE VIETNAM
CONFLICT."  /2/  THE SOLICITOR GENERAL'S ARGUMENT IN FAVOR OF
JURISDICTION SEEKS TO AVOID THE DISTRICT COURT'S RELIANCE ON EVIDENCE
BY POINTING OUT THAT THE DISTRICT COURT'S DECISION DID NOT PURPORT TO
BE A JUDGMENT ON THE MERITS, I.E., THAT THE EVIDENCE WAS NOT SUFFICIENT
TO SHOW THAT APPELLEE COMMITTED THE OFFENSE CHARGED, AND THUS WAS NOT A
DIRECTED ACQUITTAL.  HE SUBMITS THAT THE DISTRICT COURT USED SISSON'S
SINCERE, NONRELIGIOUS FORM OF CONSCIENTIOUS OBJECTION TO A PARTICULAR
WAR AS THE BASIS FOR ITS RULING THAT THE INDICTMENT WAS
CONSTITUTIONALLY INFIRM AS APPLIED TO SISSON.  SINCE THE EVIDENCE OF
CONSCIENTIOUS OBJECTION WAS UNDISPUTED AT TRIAL /3/  AND IS UNDISPUTED
NOW, THE SOLICITOR GENERAL ARGUES THAT THE USE OF THE FACTS HERE WAS
AKIN TO A STIPULATION OF FACTS BY PARTIES IN A CRIMINAL CASE, AND THAT
THIS COURT HAS RECOGNIZED THAT SUCH A STIPULATION MAY BE TREATED BY THE
DISTRICT COURT AS SUPPLEMENTING THE INDICTMENT (LIKE A BILL OF
PARTICULARS).  HE RELIES ON UNITED STATES V. HALSETH, 342 U.S. 277
(1952), AND UNITED STATES V. FRUEHAUF, 365 U.S. 146 (1961).  /4/ 

MY DISAGREEMENT WITH THE COURT IS BASED UPON MUCH MORE FUNDAMENTAL
GROUNDS THAN THOSE WHICH THE SOLICITOR GENERAL WOULD USE TO AVOID THE
STRICTURES OF THE COMMON-LAW CONCEPT OF AN ARREST OF JUDGMENT.  IN MY
VIEW THE CRIMINAL APPEALS ACT CONTEMPLATES THAT AN ARREST OF JUDGMENT
IS APPROPRIATE IN OTHER THAN A CLOSED CATEGORY OF CASES DEFINED BY
LEGAL HISTORY.  SPECIFICALLY, THERE IS NO REASON FOR THE COURT TODAY TO
READ INTO THAT CLASS OF CASES ALL OF THE NICETIES OF WHAT MIGHT OR
MIGHT NOT HAVE BEEN INCLUDED IN THE "JUDGMENT ROLL" AT COMMON LAW.  WE
HAVE OUTGROWN THOSE FORMALISMS. 

I CONCLUDE THAT EVIDENCE ADDUCED AT TRIAL CAN BE CONSIDERED BY A
DISTRICT COURT AS THE BASIS FOR A MOTION IN ARREST OF JUDGMENT WHEN
THAT EVIDENCE IS USED SOLELY FOR THE PURPOSE OF TESTING THE
CONSTITUTIONALITY OF THE CHARGING STATUTE AS APPLIED.  I DO SO BECAUSE
THE LEGISLATIVE HISTORY SURROUNDING THE PASSAGE OF THE CRIMINAL APPEALS
ACT ABUNDANTLY SHOWS CONGRESS CONTEMPLATED REVIEW BY THIS COURT IN SUCH
A CASE.  THE REASONS FOR THE COURT'S FACE-OF-THE-RECORD LIMITATION, IN
THE TECHNICAL COMMON-LAW FORM OF AN ARREST OF JUDGMENT, HAVE LONG SINCE
DISAPPEARED, AND THE COURT'S RELIANCE ON A POLICY DISFAVORING APPEALS
UNDER THE CRIMINAL APPEALS ACT IS MISPLACED. 

THE COURT'S REASONING PAYS SCANT ATTENTION TO THE PURPOSE OF THE
CRIMINAL APPEALS ACT AND TO THE PROBLEM THAT CONGRESS WAS ATTEMPTING TO
SOLVE IN 1907 WHEN THE ACT WAS PASSED.  THE LEGISLATIVE HISTORY OF THE
CRIMINAL APPEALS ACT REFLECTS THE STRONG DESIRE BY A NUMBER OF
ATTORNEYS GENERAL OF THE UNITED STATES FOR AN APPELLATE REMEDY IN
SELECTED CRIMINAL CASES.  /5/  SUCH A REMEDY HAD BEEN PROVIDED IN
ENGLAND AND IN SOME STATES, BUT THE LACK OF SUCH A REMEDY FOR THE
FEDERAL GOVERNMENT HAD "LEFT ALL FEDERAL CRIMINAL LEGISLATION AT THE
MERCY OF SINGLE JUDGES IN THE DISTRICT AND CIRCUIT COURTS.  THE DEFECT
BECAME ALL THE MORE SERIOUS BECAUSE IT BECAME OPERATIVE JUST AT THE
BEGINNING OF THE MOVEMENT FOR INCREASING SOCIAL CONTROL THROUGH
CRIMINAL MACHINERY."  /6/  CONGRESS, HOWEVER, WAS NOT STIRRED TO
COMPLETE ITS ACTION ON THE PROPOSALS UNTIL A FEDERAL DISTRICT COURT
RENDERED ITS DECISION IN UNITED STATES V. ARMOUR & CO., 142 F. 808
(D.C.N.D. ILL. 1906), SUSTAINING A MOTION TO DISMISS AND ENDING A
SHERMAN ACT PROSECUTION IN WHICH PRESIDENT THEODORE ROOSEVELT HAD A
GREAT INTEREST. 

THE HOUSE PASSED, WITHOUT DEBATE, A BILL THAT GAVE THE UNITED STATES
IN ALL CRIMINAL PROSECUTIONS "THE SAME RIGHT OF REVIEW BY WRIT OF ERROR
THAT IS GIVEN TO THE DEFENDANT," PROVIDED THAT THE DEFENDANT NOT TWICE
BE PUT IN JEOPARDY FOR THE SAME OFFENSE.  40 CONG.REC.  5408 (1906). 
THE SENATE, HOWEVER, REFUSED TO ACCEPT THE HOUSE BILL.  RATHER, ITS
JUDICIARY COMMITTEE OFFERED AS A SUBSTITUTE A MORE COMPLICATED BILL
WHICH ULTIMATELY WAS REFINED TO BECOME THE CRIMINAL APPEALS ACT.  IN
RELEVANT PART, THE SUBSTITUTE WOULD HAVE ALLOWED A WRIT OF ERROR BY THE
UNITED STATES "(FROM THE DECISION ARRESTING A JUDGMENT OF CONVICTION
FOR INSUFFICIENCY OF THE INDICTMENT."  S. REP. NO. 3922, 59TH CONG.,
1ST SESS. (1906).  WHEN THE SUBSTITUTE CAME TO THE FLOOR OF THE SENATE,
THE FLOOR LEADER FOR THE BILL, SENATOR KNUTE NELSON OF MINNESOTA,
EXPLAINED THE NEED FOR THE LEGISLATION IN CONSITUTIONAL TERMS:
"(SOMETIMES AN INDICTMENT IS SET ASIDE ON THE GROUND THAT THE LAW UNDER
WHICH THE INDICTMENT WAS FOUND IS HELD TO BE UNCONSTITUTIONAL.  THE
OBJECT (OF THIS BILL) IS TO ALLOW THE GOVERNMENT TO TAKE THE CASE UP
AND GET A RULING OF THE SUPREME COURT."  40 CONG.REC.  8695 (1906). 
THE BILL WAS THEN PUT OVER IN THE ABSENCE OF UNANIMOUS CONSENT FOR
CONSIDERATION.  WHEN THE BILL RETURNED TO THE FLOOR, QUESTIONS WERE
RAISED WITH RESPECT TO THE ARREST OF JUDGMENT PROVISION REGARDING THE
PROHIBITION AGAINST DOUBLE JEOPARDY.  UNANIMOUS CONSENT TO PROCEED
AGAIN WAS WITHDRAWN AND THE BILL WAS AGAIN PUT OVER.  40 CONG.REC. 
9033 (1906). 

AN AMENDED BILL WAS REPORTED OUT OF COMMITTEE IN JANUARY OF 1907. 
WHEN THIS BILL REACHED THE FLOOR, A SPIRITED THREE-DAY DEBATE TOOK
PLACE RESPECTING ITS IMPACT ON AN ACCUSED.  INDEED, AMONG THE QUESTIONS
DISCUSSED WAS WHETHER A DEFENDANT WHO SUCCEEDED ON A MOTION IN ARREST
OF JUDGMENT COULD AGAIN BE PROSECUTED.  SEE 41 CONG.REC.  2192-2193
(1907).  BUT ALMOST NONE OF THE DEBATE CONCERNED THE SCOPE OF AN
"ARREST OF JUDGMENT."  SENATOR KNOX, WHO HAD BEEN THE ATTORNEY GENERAL
BEFORE GOING TO THE SENATE, DID SAY THAT "THIS LEGISLATION IS ALONG THE
LINE OF THE LAW AS IT IS UNDERSTOOD IN ENGLAND UNDER THE COMMON LAW." 
41 CONG.REC.  2751 (1907).  HOWEVER, THIS STATEMENT APPARENTLY REFERRED
TO THE RIGHT OF THE GOVERNMENT TO APPEAL, FOR IT WAS IMMEDIATELY
FOLLOWED BY THE OBSERVATION:  "IN ENGLAND THE CROWN ALWAYS HAD THE
RIGHT TO AN APPEAL IN A CRIMINAL CASE.  IN MY OWN STATE SINCE ITS
FOUNDATION THE RIGHT HAS BEEN CONCEDED."  IBID.  THE MANIFEST,
OVERRIDING CONCERN OF THE SENATE WAS WITH ENACTING LEGISLATION THAT
WOULD PERMIT APPEALS AS TO IMPORTANT LEGAL QUESTIONS ALWAYS SUBJECT TO
THE BAR AGAINST DOUBLE JEOPARDY, /7/  AND THIS CONCERN CARRIED OVER TO
THE ARREST OF JUDGMENT PROVISION.  /8/  INDEED, THE MAJOR LIMITING
AMENDMENT ADOPTED BY THE SENATE RESTRICTED THE RIGHT OF REVIEW BY THE
GOVERNMENT IN CRIMINAL CASES TO CONSTITUTIONAL ISSUES AND QUESTIONS OF
CONSTRUCTION OF THE STATUTE UNDER WHICH THE CHARGE WAS BROUGHT.  SEE 41
CONG.REC.  2819-2820 (1907). 

ANOTHER ILLUSTRATION OF WHAT THE SENATE THOUGHT IT WAS DOING IN
DESCRIBING THIS CATEGORY OF APPEALS COMES FROM THE EMPHASIS ON
DISTINGUISHING A "MOTION IN ARREST" FROM AN "ACQUITTAL."  SEE 41
CONG.REC.  2748 (1907).  FROM THE LATTER, TO BE SURE, THERE WAS TO BE
NO APPEAL-- NO MATTER HOW MANY ERRORS THE TRIAL JUDGE HAD COMMITTED
ALONG THE WAY TO THE ACQUITTAL IN THE FORM OF ERRONEOUS RULINGS OR
OTHER TRIAL ERRORS.  AS THE MAJORITY HAS NOTED, AN AMENDMENT WAS
ADOPTED WHICH REQUIRED THAT VERDICTS IN FAVOR OF THE DEFENDANT COULD
NOT BE SET ASIDE ON APPEAL.  41 CONG.REC.  2819 (1907).  THE TEXT OF
THE AMENDMENT AS ADOPTED READ:  "PROVIDED, THAT IF UPON APPEAL OR WRIT
OF ERROR IT SHALL BE FOUND THAT THERE WAS ERROR IN THE RULINGS OF THE
COURT DURING THE TRIAL, A VERDICT IN FAVOR OF THE DEFENDANT SHALL NOT
BE SET ASIDE."  IBID.  THE PROPONENT OF THE AMENDMENT, SENATOR RAYNER,
EXPRESSED THE VIEW THAT THE AMENDMENT WAS DIRECTED TOWARD A "VERDICT OF
NOT GUILTY, WHETHER BY THE COURT OR THE JURY.  . . . "  41 CONG.REC. 
2747 (1907).  HERE, OF COURSE, SISSON WAS NOT ACQUITTED BUT WAS FOUND
GUILTY BY THE JURY.  FURTHER, THE COURT'S USE OF THE RAYNER AMENDMENT
TO SUPPORT A NARROW READING OF THE "ARREST OF JUDGMENT"  PROVISION IS
INCONGRUOUS IN THE EXTREME IN LIGHT OF THE FACT THAT THE AMENDMENT HAD
NO SUBSTANTIVE EFFECT AND WAS LATER DELETED FROM THE ACT.  SEE MR.
JUSTICE WHITE'S OPINION, POST.  AT 344 N. 11. 

"TRIAL ERRORS" RESPECTING THE FACT-FINDING FUNCTION-- WHICH AFFECT
ONLY THE PARTICULAR TRIAL-- WERE DISTINGUISHED FROM ERRORS OF LAW THAT
HAD BEEN SEPARATED FROM THE TRIAL ON THE MERITS, AND THAT INVOLVED
CONSTITUTIONAL RULINGS THAT COULD AFFECT FUTURE ATTEMPTS OF THE
GOVERNMENT TO PROSECUTE UNDER THE SAME STATUTE: 

     "THE DEFENDANT GETS THE BENEFIT OF ALL ERRORS IN THE TRIAL

  WHICH ARE IN HIS FAVOR, AND CAN CHALLENGE ALL ERRORS IN THE TRIAL

  WHICH ARE AGAINST HIM.  IT IS CERTAINLY NOT TOO MUCH WHEN HE

  ATTACKS THE TRIAL ITSELF OR THE LAW UNDER WHICH IT IS CONDUCTED

  TO GIVE THE PEOPLE THE RIGHT TO A DECISION OF THEIR HIGHEST

  COURTS UPON THE VALIDITY OF STATUTES MADE FOR THEIR PROTECTION

  AGAINST CRIME."  41 CONG.REC.  2752 (1907) (REMARKS OF SENATOR

  KNOX).  THE MOTION IN ARREST OF JUDGMENT CAN ONLY BE MADE-- IT IS

 WHOLLY INAPPLICABLE TO ANY OTHER CONDITION THAN THAT OF

 CONVICTION-- TO A VERDICT OF GUILTY.  IT IS INTERPOSED AFTER A

  VERDICT OF GUILTY AND BEFORE JUDGMENT FOR AN ALLEGED LEGAL REASON

  THAT WILL ARREST THE COURT IN PRONOUNCING JUDGMENT UPON THE

  VERDICT."  41 CONG.REC.  2753 (1907) (REMARKS OF SENATOR

  PATTERSON). 

THE SENATE PASSED THE BILL WITH THE ACQUIRED FLOOR AMENDMENTS ON
FEBRUARY 13, 1907.  41 CONG.REC.  2825 (1907).  THE HOUSE INSISTED ON A
CONFERENCE, BUT THE CONFERENCE COMMITTEE ADOPTED THE SENATE VERSION. 
THE RESULTING CONFERENCE COMMITTEE BILL WAS ULTIMATELY ADOPTED.  41
CONG.REC.  3994, 4128 (1907). 

NOTABLY, THE DEBATES ON THE SENATE BILL WHICH FORMED THE BASIS OF
THE ACT DEMONSTRATE A TOTAL LACK OF CONCERN WITH THE TECHNICAL NICETIES
OF ANCIENT COMMON-LAW FORMS OF PLEADING.  AND, FAR FROM DISTINGUISHING
CASES WHERE A CONGRESSIONAL ACT WAS INVALIDATED ON ITS FACE FROM CASES
WHERE IT WAS INVALIDATED AS APPLIED TO A SITUATION THAT CONGRESS
CLEARLY INTENDED TO REACH, THE DEBATES APPEAR TO CONTEMPLATE BOTH CASES
AS APPROPRIATE FOR APPEAL TO THIS COURT-- CERTAINLY THE EVIL AIMED AT--
AND THE RATIONALE OF THE ACT IS BROAD ENOUGH TO ENCOMPASS BOTH
SITUATIONS.  APPEAL WAS TO BE FOR THE PURPOSE OF DECIDING
"CONSTITUTIONAL QUESTIONS," "QUESTIONS OF LAW" WHICH, IF THE DISTRICT
JUDGE'S DECISION WERE PERMITTED TO STAND, COULD LEAD TO CONFLICT AND
DIFFERENT TREATMENT UNDER THE SAME CRIMINAL STATUTES IN DIFFERENT PARTS
OF THE COUNTRY, WITH NO OPPORTUNITY UNDER EXISTING LAW FOR RESOLUTION
IN THIS COURT.  THE GOVERNMENT WAS TO HAVE A CHANGE TO "SETTLE THE LAW
AS TO FUTURE CASES OF LIKE CHARACTER."  41 CONG.REC.  2194 (1907). 

IT IS DIFFICULT TO IMAGINE A CASE MORE CLOSELY FITTING INTO THIS
RATIONALE THAN THAT NOW BEFORE US.  THE CLASSS OF NONRELIGIOUS
CONSCIENTIOUS OBJECTORS IS NOT LIKELY TO BE A SMALL ONE.  INDEED UNDER
THE IMPETUS OF THIS HOLDING IT IS LIKELY TO GROW.  YET WHETHER OR NOT A
MEMBER OF THAT CLASS CAN CONSTITUTIONALLY BE PUNISHED FOR REFUSING TO
SUBMIT TO INDUCTION NOW DEPENDS ON WHERE THAT PERSON IS TRIED AND BY
WHOM.  THAT ONE DISTRICT JUDGE MAY ENTERTAIN A DIFFERENT VIEW OF THE
CONSTITUTION THAN DOES ANOTHER IS AN EXTRAORDINARY REASON FOR DIFFERING
RESULTS IN CASES THAT RATIONALLY OUGHT TO BE DECIDED THE SAME WAY-- AND
WITH APPELLATE REVIEW AVAILABLE TO INSURE THAT END.  THE CONCLUSION
THAT THIS IS NOT A "MOTION IN ARREST," INSULATES THE JUDGE'S
CONSTITUTIONAL DECISION FROM REVIEW ANYWHERE-- HERE OR IN THE COURT OF
APPEALS.  THAT, I SUBMIT, IS PRECISELY THE SITUATION CONGRESS THOUGHT
IT WAS CORRECTING WITH THE CRIMINAL APPEALS ACT.  IT IS REMARKABLE THAT
THE COURT FINDS IT SO EASY TO IGNORE THE EXPLICIT AND MEANINGFUL
LEGISLATIVE HISTORY WHICH REFUTES ITS STRAINED READING OF THE STATUTE
AND HISTORY.     THE COMMON-LAW RULE THAT AN ARREST OF JUDGMENT COULD
BE BASED ON NOTHING MORE THAN THE JUDGMENT ROLL SEEMS TO HAVE BEEN
REQUIRED BY THE EXISTENCE OF THE VERY LIMITED RECORD OF THAT DAY WHICH
DID NOT INCLUDE THE EVIDENCE ADDUCED AT TRIAL.  EVIDENTIARY MATTERS
WERE NOT BEFORE THE APPELLATE COURTS, AND IT WOULD HAVE BEEN IMPOSSIBLE
FOR THE ARRESTING COURT'S "SUCCESSORS (TO) KNOW THE GROUNDS OF THEIR
JUDGMENT," SUTTON V. BISHOP, SUPRA, IF THE ARRESTING COURT CONSIDERED
THE EVIDENCE AT TRIAL.  THIS COURT IN THIS CASE OBVIOUSLY HAS NO SUCH
PROBLEM IN PROVIDING APPELLATE REVIEW.  THE RECORDS BEFORE US CONTAIN
COMPLETE TRANSCRIPTS OF THE TRIAL PROCEEDINGS AS A MATTER OF COURSE. 

ACCORDINGLY, WHILE THE DISTRICT COURT ADMITTEDLY LOOKED TO EVIDENCE,
INCLUDING DEMEANOR EVIDENCE, FOR ITS FINDINGS THAT SISSON WAS "SINCERE"
AND WAS "GENUINELY AND PROFOUNDLY GOVERNED BY HIS CONSCIENCE," THIS
USE FOR THAT PURPOSE SHOULD NOT NOW BAR THIS COURT FROM CONSIDERING THE
DISTRICT COURT'S ACTION AS AN ARREST OF JUDGMENT.  AS LONG AS THE
EVIDENCE WAS USED TO TEST THE CONSTITUTIONALITY OF THE CHARGING STATUTE
AS APPLIED TO THE DEFENDANT, AND NOT TO TEST THE SUFFICIENCY OF THE
PROOF AGAINST THE ALLEGATIONS IN THE INDICTMENT, THE USE OF THE
EVIDENCE WAS CONSISTENT WITH THE PURPOSES OF AN ARREST OF JUDGMENT. 

IN THIS CASE, THERE HAS BEEN NO FINDING THAT SISSON DID NOT COMMIT
THE ACTS CHARGED; THERE HAS BEEN ONLY A HOLDING BY THE TRIAL JUDGE THAT
HIS ACTS WERE CONSTITUTIONALLY PROTECTED-- A HOLDING THAT STANDS AS THE
SOLE IMPEDIMENT TO IMPOSING A JURY VERDICT OF GUILTY; NO VERDICT OF
ACQUITTAL WAS EVER RETURNED.  EVEN OUR PRESENT FEDERAL RULES OF
CRIMINAL PROCEDURE MAKE A SIMILAR DISTINCTION BETWEEN A "MOTION FOR
JUDGMENT OF ACQUITTAL," RULE 29, AND AN "ARREST OF JUDGMENT," RULE 34. 
THE FORMER IS ENTERED "IF THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A
CONVICTION" OF THE OFFENSE CHARGED, WHILE THE LATTER IS GRANTED WHERE
THE INDICTMENT "DOES NOT CHARGE AN OFFENSE" AT ALL.  RULE 29 ALLOWS A
JUDGE TO RESERVE HIS DECISION ON A MOTION FOR JUDGMENT OF ACQUITTAL
UNTIL AFTER THE JURY HAS RETURNED A VERDICT.  IF HE THEN GRANTS THE
MOTION, THE DEFENDANT STANDS ACQUITTED, BUT AGAIN ONLY BECAUSE THE
EVIDENCE HAS BEEN FOUND INSUFFICIENT TO SUPPORT THE CHARGE.  WHERE THE
GROUNDS FOR GRANTING AN "ACQUITTAL" ARE BASED ON AN INDEPENDENT LEGAL
DECISION ABOUT THE INTERPRETATION OR CONSTRUCTION OF THE STATUTE, THE
JUDGE'S ACTION WILL BE AN "ARREST OF JUDGMENT" EVEN THOUGH HE LABELS IT
AN "ACQUITTAL."  UNITED STATES V. WATERS, 84 U.S.APP.D.C. 127, 175 F.2D
340 (1948). 

I CANNOT BELIEVE THAT CONGRESS, FULLY AWARE THAT NO APPEAL WAS
AVAILABLE FOR A DIRECTED VERDICT OR JUDGMENT N.O.V., CONTEMPLATED THAT
THIS FORM OF JUDICIAL ACTION SHOULD BE ACCORDED THE SAME NONAPPEALABLE
STATUS.  MOREOVER, THE SOPHISTICATED DISTRICT JUDGE COULD HAVE ENTERED
A JUDGMENT N.O.V. IF HE WANTED TO AVOID REVIEW OR IF HE THOUGHT THAT HE
WAS INDEED PASSING ON THE SUFFICIENCY OF THE EVIDENCE TO MEET THE
ALLEGATIONS OF THE INDICTMENT.  OF COURSE, HIW VIEWS ARE NOT
CONTROLLING, BUT I AM COMFORTED BY HIS APPRAISAL AND QUITE SATISFIED HE
KNEW PRECISELY WHAT HE WAS DOING-- OR THOUGHT HE DID ON THE ASSUMPTION
THAT HIS ACTION WAS REVIEWABLE UNDER WELL-ESTABLISHED PRINCIPLES THE
COURT NOW IGNORES. 

THE COURT ALSO INVEIGHS AGAINST A "BROAD" CONSTRUCTION OF THE ACT,
NOTING THAT THIS COURT HAS DENOMINATED AN APPEAL BY THE GOVERNMENT IN A
CRIMINAL CASE AS AN "EXCEPTIONAL RIGHT," AND AS "SOMETHING UNUSUAL,
EXCEPTIONAL, NOT FAVORED."  ANTE, AT 291.  THIS IS AN ODD
CHARACTERIZATION; THE RIGHT IS PRECISELY AS "EXCEPTIONAL" OR "UNUSUAL"
AS CONGRESS MAKES IT.  THIS COURT HAS NO POWER TO DEFINE THE SCOPE OF
ITS OWN APPELLATE REVIEW IN THIS CONTEXT AND A SUBJECTIVE DISTASTE FOR
REVIEW AT THE INSTANCE OF GOVERNMENT HAS NO PROPER PLACE IN
ADJUDICATION.  THE TENDENCY TO BE MISERLY WITH OUR JURISDICTION DID NOT
PREVENT OUR CONSTRUING THE THREE-JUDGE COURT ACTS TO INCLUDE CASES
WHERE STATUTES WERE HELD UNCONSTITUTIONAL AS APPLIED, QUERY V. UNITED
STATES, 316 U.S. 486 (1942); C. WRIGHT, FEDERAL COURTS 190 (2D ED.
1970), AND IT SHOULD NOT CARRY ANY MORE WEIGHT IN ASSESSING OUR
RESPONSIBILITY TO DECIDE THE CONSTITUTIONAL ISSUES IN THIS CASE, /9/
THE MORE SO WHEN IT IS A CONSTITUTIONAL HOLDING OF GREAT MOMENT. 

        II 

THE SECOND REQUIREMENT, THAT THE DECISION OF THE DISTRICT COURT MUST
REST UPON THE "INSUFFICIENCY OF THE INDICTMENT," ALSO PRESENTS A
DIFFICULT QUESTION HERE.  THE COURT EMPHASIZES, WRONGLY, IN MY VIEW,
THAT BOTH GROUNDS UPON WHICH THE DISTRICT COURT'S DECISION RESTS ARE
DEFENSES THAT SISSON SUCCESSFULLY ASSERTED.  IN AN ORDINARY CASE, AN
INDICTMENT, TO BE SUFFICIENT, NEED NOT ANTICIPATE AFFIRMATIVE
DEFENSES.  THIS, HOWEVER, IS NOT THE ORDINARY CASE.  THE INDICTMENTS IN
CASES OF THIS NATURE TYPICALLY CHARGE ONLY THAT THE SELECTIVE SERVICE
REGISTRANT 

"DID UNLAWFULLY, KNOWINGLY AND WILFULLY FAIL AND NEGLECT AND REFUSE
TO PERFORM A DUTY REQUIRED OF HIM UNDER AND IN THE EXECUTION OF THE
MILITARY SELECTIVE SERVICE ACT OF 1967 AND THE RULES, REGULATIONS AND
DIRECTIONS DULY MADE PURSUANT THERETO, PARTICULARLY 32 CODE OF FEDERAL
REGULATIONS 1632.14, IN THAT HE DID FAIL AND NEGLECT AND REFUSE TO
COMPLY WITH AN ORDER OF HIS LOCAL DRAFT BOARD TO SUBMIT TO INDUCTION
INTO THE ARMED FORCES OF THE UNITED STATES; IN VIOLATION OF TITLE 50,
APPENDIX, U.S.C.  SECTION 462."  /10/ YET THIS ALLEGATION SUBSUMES IN
ITS TERSE LANGUAGE A MYRIAD OF ELEMENTS THAT THE GOVERNMENT MAY BE
CALLED UPON TO PROVE IF THE DEFENSE MAKES AN APPROPRIATE CHALLENGE. 
PROSECUTIONS FOR REFUSING TO SUBMIT TO INDUCTION ARE UNUSUAL BECAUSE
THEY INCORPORATE INTO THE JUDICIAL PROCEEDING MUCH THAT HAS OCCURRED IN
THE ADMINISTRATIVE PROCESSES OF THE SELECTIVE SERVICE SYSTEM.  ALL OF
THE COURTS OF APPEALS HAVE COMPENSATED FOR THE ADMINISTRATIVE
PROCEEDINGS BY HOLDING THAT THE GOVERNMENT NEED NOT PLEAD AND PROVE
MANY ELEMENTS THAT WOULD NORMALLY BE A PART OF ITS CASE-IN-CHIEF.  THE
COURTS OF APPEALS HAVE DEVISED A PRESUMPTION OF REGULARITY WHICH
ATTACHES TO THE OFFICIAL ACTS OF THE LOCAL BOARDS THAT, STANDING ALONE,
IS SUFFICIENT TO PRECLUDE REVERSAL OF A CONVICTION WHICH A GIVEN
ELEMENT IS NOT RAISED AT TRIAL.  SEE PARTICULARLY YATES V. UNITED
STATES, 404 F.2D 462 (C.A. 1ST CIR. 1968) (PRESUMPTION OF REGULARITY
ATTACHES TO THE ORDER-OF-CALL REQUIREMENT).  HOWEVER, IF THE DEFENDANT
SUCCEEDS IN MAKING A PRIMA FACIE CASE AGAINST THE PRESUMPTION, THE
GOVERNMENT IS PUT TO ITS PROOF ON THE PARTICULAR ELEMENT OF THE
OFFENSE.  SEE UNITED STATES V. BAKER, 416 F.2D 202 (C.A. 9TH CIR.
1969). 

BY ANALOGY, THE GOVERNMENT IS NOT REQUIRED TO PLEAD AND PROVE THAT
THE DEFENDANT WAS PROPERLY CLASSIFIED IN CATEGORY I-A AS AVAILABLE FOR
INDUCTION.  RATHER, THE DEFENDANT CAN CHALLENGE THE CLASSIFICATION AT
TRIAL IF HE HAS PRESERVED HIS CLAIM, AND FORCE THE GOVERNMENT TO PROVE
THAT THERE WAS INDEED A "BASIS IN FACT" FOR THE CLASSIFICATION.  THUS,
ESTABLISHING THE APPROPRIATE CLASSIFICATION IS ACTUALLY AN ELEMENT OF
THE GOVERNMENT'S CASE, BUT BECAUSE OF THE DEFERENCE GIVEN TO THE
ADMINISTRATIVE PROCESS THAT PRECEDED THE CRIMINAL PROCEEDINGS, THE
GOVERNMENT HAS BEEN EXCUSED FROM PLEADING AND PROVING IT IN THE
INDICTMENT.  SINCE THE GENERAL ALLEGATIONS IN THE INDICTMENT ACTUALLY
DO SUBSUME THE ELEMENT THAT THE DISTRICT COURT HELD WAS BASED ON AN
INVALID STATUTE AS APPLIED TO SISSON, THAT COURT'S DECISION WAS BASED
ON THE "INSUFFICIENCY OF THE INDICTMENT" WITHIN THE MEANING OF SEC.
3731. 

THE COURT ALSO APPEARS TO ASSUME THAT AN INDICTMENT MAY BE
"INSUFFICIENT" BECAUSE THE ACTS CHARGED CANNOT CONSTITUTIONALLY BE MADE
AN OFFENSE, E.G., WHERE THEY SHOW THE EXISTENCE OF A CONSTITUTIONAL
PRIVILEGE THAT BARS CONVICTION.  BUT, THE COURT CONCLUDES THAT "THIS
INDICTMENT . . . DOES NOT ALLEGE FACTS THAT THEMSELVES DEMONSTRATE THE
AVAILABILITY OF A CONSTITUTIONAL PRIVILEGE."  ANTE, AT 288. 

IN MY VIEW, THE COURT'S SUGGESTION IS SIMPLY THE SAME ARGUMENT,
DIFFERENTLY APPROACHED, AS THE ARGUMENT THAT A MOTION IN ARREST CAN BE
BASED ONLY ON FACTS APPEARING ON THE FACE OF THE RECORD.  IN BOTH
CASES, THE SINGLE QUESTION, AS I SEE IT, IS WHETHER CONGRESS DREW A
DISTINCTION FOR PURPOSES OF APPEAL BY THE GOVERNMENT, BETWEEN CASES IN
WHICH THE DISTRICT COURT FOUND THE ENTIRE STATUTE UNCONSTITUTIONAL, AND
CASES IN WHICH THE COURT FOUND THE STATUTE UNCONSTITUTIONAL AS
APPLIED. 

THE VIEW HAS BEEN EXPRESSED THAT THE CRIMINAL APPEALS ACT IS BADLY
DRAWN AND GIVES RISE TO A MULTITUDE OF PROBLEMS.  WE CAN ALL AGREE AS
TO THE INFIRMITIES OF THE STATUTE BUT THIS IS HARDLY AN EXCUSE TO TAKE
LIBERTIES WITH ITS PLAIN PURPOSES REASONABLY ARTICULATED IN ITS TERMS. 
PRIOR URGINGS ADDRESSED TO THE CONGRESS TO CORRECT THIS SITUATION HAVE
GONE UNHEEDED.  BUT THE COURT'S HOLDING TODAY IS A POWERFUL ARGUMENT TO
SPUR CORRECTIVE ACTION BY CONGRESS. 

/1/  UNITED STATES V. LIAS, 173 F.2D 685 (C.A. 4TH CIR. 1949),
SUPPORTS THE VIEW THAT THE STANDARD ARE THE SAME FOR RULE 34 AND SEC.
3731. 

RULE 34 PROVIDES:  "THE COURT ON MOTION OF A DEFENDANT SHALL ARREST
JUDGMENT IF THE INDICTMENT OR INFORMATION DOES NOT CHARGE AN OFFENSE OR
IF THE COURT WAS WITHOUT JURISDICTION OF THE OFFENSE CHARGED.  THE
MOTION IN ARREST OF JUDGMENT SHALL BE MADE WITHINT 7 DAYS AFTER VERDICT
OR FINDING OF GUILTY, OR AFTER PLEA OF GUILTY OR NOLO CONTENDERE, OR
WITHIN SUCH FURTHER TIME AS THE COURT MAY FIX DURING THE 7-DAY
PERIOD." 

/2/  BRIEF 30. 

/3/  AS THE COURT'S OPINION INDICATES, SEE ANTE, AT 274-276, THE
EVIDENCE OF CONSCIENTIOUS OBJECTION THAT WAS ADMITTED AT TRIAL WAS
SUBJECT TO CROSS-EXAMINATION AND WAS DISCUSSED DURING THE CLOSING
ARGUMENTS, BUT SOLELY IN THE CONTEXT OF SISSON'S "WILFULNESS" IN
REFUSING INDUCTION, NOT RESPECTING WHETHER SISSON WAS OR WAS NOT IN
FACT A SINCERE CONSCIENTIOUS OBJECTOR. 

/4/  BOTH THE HALSETH AND FRUEHAUF CASES INVOLVED DISMISSALS OF
INDICTMENTS BEFORE TRIAL.  IN HALSETH THE PARTIES HAD ENTERED INTO A
STIPULATION FOR PURPOSES OF A MOTION TO DISMISS.  THE INDICTMENT
CHARGED IN THE WORDS OF THE STATUTE AN UNLAWFUL USE OF THE MAILS TO
DELIVER "A LOTTERY OR SCHEME."  IT WAS STIPULATED THAT THE PARTICULAR
LOTTERY INVOLVED WOULD COME INTO EXISTENCE ONLY IF THE ADDRESSEE PUT
THE PARAPHERNALIA INTO OPERATION.  THE DISTRICT COURT GRANTED A MOTION
TO DISMISS ON THE GROUND THAT THE STATUTE DID NOT APPLY TO LOTTERIES
SUCH AS DEFENDANT'S THAT WERE NOT YET IN EXISTENCE.  THIS COURT
AFFIRMED, NECESSARILY RELYING ON THE PARTICULAR FACTS ABOUT THE
PARTICULAR MAILING UNDER ATTACK.  SEE 342 U.S.,AT 280-281.  IN UNITED
STATES V. FRUEHAUF, 365 U.S. 146 (1961), ;HE INDICTMENT CHARGED THE
APPELLANT, AGAIN IN THE WORDS OF THE STATUTE, WITH UNLAWFULLY
DELIVERING MONEY TO A UNION REPRESENTATIVE.  THE DISTRICT COURT RULED
THAT A TRIAL MEMORANDUM FILED BY THE GOVERNMENT CONSTITUTED A JUDICIAL
ADMISSION THAT A TRANSACTION AT ISSUE WAS A LOAN AND CONCLUDED THAT THE
STATUTE DID NOT COVER A LOAN.  THE GOVERNMENT APPEALED THAT
CONSTRUCTION OF THE STATUTE.  THE COURT REFUSED TO CONSIDER THAT THE
"ADMISSION" HAD CLEARLY FORECLOSED THE GOVERNMENT FROM PROVING AT TRIAL
THAT THE LOAN WAS A SHAM OR OTHERWISE CONSTITUTED A TRANSFER OF
SOMETHING OF VALUE APART FROM AN ORDINARY LOAN, THUS VIOLATING THE
STATUTE.  ACCORDINGLY, IT REFUSED TO PASS ON THE MERITS OF THE APPEAL
AND REMANDED THE CASE FOR A TRIAL ON THE EXISTING INDICTMENT. 

HALSETH AND FRUEHAUF ARE INCONCLUSIVE AUTHORITIES ON THE ISSUE OF
WHETHER A STIPULATION CAN SUPPLEMENT AN INDICTMENT AND GENERATE A BASIS
FOR REVIEW UNDER SEC. 3731.  WHILE THE MAJORITY RECOGNIZES THAT THE
ISSUE HAS NOT BEEN RESOLVED, AND ALTHOUGH IT PURPORTS NOT TO RESOLVE IT
HERE, IT DOES RELY ON UNITED STATES V. NORRIS, 281 U.S. 619 (1930), AND
A POLICY OF CONSTRUING THE CRIMINAL APPEALS ACT NARROWLY TO EXPRESS
DOUBT THAT THE SOLICITOR GENERAL'S ARGUMENT SHOULD BE ACCEPTED. 

NORRIS, HOWEVER, IS NOT A PERSUASIVE PRECEDENT.  THERE THE DEFENDANT
WAS PERMITTED TO ENTER A PLEA OF NOLO CONTENDERE TO THE CHARGE
CONTAINED IN THE INDICTMENT.  WHEN HE APPEARED FOR SENTENCING, A
STIPULATION OF FACTS WAS FILED, AND HE THEN SUBMITTED A MOTION FOR
ARREST OF JUDGMENT WHICH RELIED ON THE STIPULATION.  THE DISTRICT COURT
DENIED THE MOTION BUT THE COURT OF APPEALS REVERSED, CONCLUDING THAT
THE INDICTMENT WAS INSUFFICIENT IN LIGHT OF THE STIPULATION.  THIS
COURT IN TURN REVERSED THE COURT OF APPEALS, HOLDING THAT AFTER
PLEADING GUILTY, A DEFENDANT MAY NOT THEN STIPULATE FACTS TO TEST THE
CONSTITUTIONALITY OF HIS CONVICTION.  THERE WAS NO SUGGESTION THAT AN
APPEAL WOULD NOT LIE WHERE A STATUTE WAS HELD UNCONSTITUTIONAL AS
APPLIED TO STIPULATED FACTS.  INDEED, THE COURT'S OPINION SEEMS AT ONE
POINT TO SUGGEST THAT IF THE DEFENDANT HAD WITHDRAWN HIS PLEA, AND THEN
QUESTIONED THE CONSTITUTIONALITY OF HIS CONVICTION ON STIPULATED FACTS,
THE QUESTION WOULD HAVE BEEN OPEN TO CONSIDERATION.  281 U.S.,AT 623. 

FURTHER, THE MAJORITY'S ULTIMATE CONCLUSIONS ABOUT THE ACT
NECESSARILY LEAD IT INTO UNCOMFORTABLE DISTINCTIONS.  FOR IF THE
GOVERNMENT OR THE PARTIES WANT A CONSTITUTITONAL RULING ABOUT THE
APPLICABILITY OF A STATUTE TO A PARTICULAR SET OF FACTS, IT IS ONLY
NECESSARY TO SET OUT THOSE FACTS AS A PART OF THE INDICTMENT OR
INFORMATION.     /5/  SEE KURLAND, THE MERSKY CASE AND THE CRIMINAL
APPEALS ACT:  A SUGGESTION FOR AMENDMENT OF THE STATUTE, 28
U.CHI.L.REV.  419, 446-449 (1961). 

/6/  F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT
114 (1928). 

/7/  "THE GOVERNMENT TAKES THE RISKS OF ALL THE MISTAKES OF ITS
PROSECUTING OFFICERS AND OF THE TRIAL JUDGE IN THE TRIAL, AND IT IS
ONLY PROPOSED TO GIVE IT AN APPEAL UPON QUESTIONS OF LAW RAISED BY THE
DEFENDANT TO DEFEAT THE TRIAL AND IF IT DEFEATS THE TRIAL."  41
CONG.REC.  2752 (1907) (REMARKS OF SENATOR KNOX). 

/8/  "(A MOTION IN ARREST OF JUDGMENT) IS A CASE IN WHICH THE
DEFENDANT HAS BEEN TRIED, IN WHICH HE HAS BEEN FOUND GUILTY ON THE
MERITS OF THE CASE, AND BY REASON OF SOME TECHNICALITY, IF I MAY USE
THE TERM IN ITS BROAD SENSE, THE HAND OF THE COURT IS ARRESTED FROM
IMPOSING THE PENALTY UPON HIM."  41 CONG.REC.  2753 (1907) (REMARKS OF
SENATOR PATTERSON). 

/9/  THE ONE CASE IN WHICH THIS COURT HAS EVEN TANGENTIALLY
CONSIDERED WHETHER EVIDENCE ADDUCED AT TRIAL CAN EVER BE CONSIDERED AS
THE BASIS OF A MOTION IN ARREST OF JUDGMENT WAS UNITED STATES V. GREEN,
350 U.S. 415 (1956).  THERE THE MAJORITY OF THE COURT WAS IMPELLED TO
EXPLAIN THE BASIS FOR ITS DECISION BY EXPLICITLY POINTING OUT THAT "THE
RECORD DOES NOT CONTAIN THE EVIDENCE UPON WHICH THE (DISTRICT) COURT
ACTED.  . . . WE RULE ONLY ON THE ALLEGATIONS OF THE INDICTMENT.  . . .
"  350 U.S.,AT 421.  MR. JUSTICE DOUGLAS, WITH WHOM CHIEF JUSTICE
WARREN AND MR. JUSTICE BLACK JOINED, DISSENTED ON THE GROUND THAT THE
DISTRICT COURT'S "ORDER GRANTING THE MOTIONS IN ARREST OF JUDGMENT
RESTED AT LEAST IN PART UPON THE INSUFFICIENCY OF THE EVIDENCE TO
SUPPORT THE CONVICTION."  IBID.  BUT NEITHER THE POSITION ADOPTED BY
THE MAJORITY NOR THAT TAKEN BY THE DISSENTERS IN GREEN IS REMOTELY
DISPOSITIVE OF THE PRESENT CASE.  HERE, IN CONTRADISTINCTION TO THE
DISSENTERS' VIEW OF THE CIRCUMSTANCES IN GREEN, EVIDENCE ADDUCED AT
TRIAL WAS USED BY THE DISTRICT COURT SOLELY FOR THE PURPOSE OF TESTING
THE CONSTITUTIONALITY OF A STATUTE AS APPLIED; THE DISTRICT COURT'S
OPINION CONCEDES THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN THE VERDICT
IF THE CONSTITUTIONAL VIEWS EXPRESSED IN THE OPINION ARE NOT
SUSTAINED. 

/10/  APP. 6. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

        I 

I AGREE WITH THE CHIEF JUSTICE THAT THIS CASE CAN BE APPEALED BY THE
GOVERNMENT UNDER THE "MOTION IN ARREST" PROVISION OF THE CRIMINAL
APPEALS ACT.  IN CONTRAST TO THE RATHER CLEAR REMEDIAL PURPOSE OF THE
ACT, NOT A SINGLE PASSAGE IN THE LEGISLATIVE HISTORY INDICATES
AWARENESS BY CONGRESS THAT THE WORDS IT WAS USING HAD THE EFFECT OF
DISTINGUISHING CASES WHERE A CONGRESSIONAL ACT WAS HELD INVALID ON ITS
FACE FROM CASES WHERE IT WAS INVALIDATED AS APPLIED TO A SUB-CLASS
WITHIN THE ACT'S INTENDED REACH.  IN BOTH CASES, THE INDICTMENT IS
"INSUFFICIENT" TO STATE A VALID OFFENSE.  /1/  IN BOTH CASES, ANY
"FACTUAL FINDINGS" NECESSARY TO GIVE THE PARTICULAR DEFENDANT THE
BENEFIT OF THE CONSTITUTIONAL RULING ARE LITTLE MORE THAN FINDINGS AS
TO THE DEFENDANT'S STANDING TO RAISE THE CONSTITUTIONAL ISSUE-- THEY
ARE NOT FINDINGS AS TO THE SUFFICIENCY OF THE EVIDENCE TO PROVE THE
OFFENSE ALLEGED IN THE INDICTMENT.  /2/  THUS, IF JUDGE WYZANSKI,
WITHOUT MAKING ANY FINDINGS AS TO SISSON'S SINCERITY, HAD HELD THE
SELECTIVE SERVICE ACT UNCONSTITUTIONALLY OVERBROAD BECAUSE IT PURPORTED
TO SUBJECT TO THE DRAFT IN VIOLATION OF THE FREE EXERCISE CLAUSE
SINCERE, NONRELIGIOUS OBJECTORS, THIS COURT WOULD CLEARLY HAVE
JURISDICTION AND WOULD FACE THE QUESTION WHETHER SISSON COULD RAISE THE
CLAIM WITHOUT SHOWING THAT HE WAS A MEMBER OF THE ALLEGEDLY PROTECTED
CLASS.  CF. THORNHILL V. ALABAMA, 310 U.S. 88 (1940).  IF SUCH A
SHOWING HAD TO BE MADE, AS THE JUDGE HERE HELD IT DID, THE QUESTION OF
STANDING AND THE FACTS RELEVANT TO THAT QUESTION ARE SURELY DISTINCT
FROM THE QUESTION OF WHETHER THE DEFENDANT COMMITTED THE OFFENSE, OR
THE QUESTION OF THE VALIDITY VEL NON OF THE STATUTE.  /3/  CF.
ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS V. CAMP, 397 U.S.
150 (1970); BARLOW V. COLLINS, 397 U.S. 159 (1970). 

        II 

WE ASKED THE PARTIES IN THIS CASE TO CONSIDER WHETHER 18 U.S.C. 3731
CONFERS JURISDICTION ON THE GROUND THAT THE LOWER COURT HAD SUSTAINED
"A MOTION IN BAR, WHEN THE DEFENDANT HAS NOT BEEN PUT IN JEOPARDY." 
THE MAJORITY, AFTER A LENGTHY DISCUSSION OF THE "MOTION IN ARREST"
PROVISION, CONDESCENDS TO ADDRESS A FEW REMARKS TO THIS QUESTION, WITH
THE SUGGESTION THAT IT REALLY NEED NOT DISCUSS THE ISSUE AT ALL, SINCE
IT HAS CONCLUDED THAT JUDGE WYZANSKI'S ACTION AMOUNTED TO "AN
ACQUITTAL."  AS MR. JUSTICE BLACK'S CONCURRENCE INDICATES, THE LENGTHY
DISCUSSION OF THE "MOTION IN ARREST" PROVISION IS EQUALLY SUPERFLUOUS
IF INDEED IT IS SO CLEAR THAT SISSON HAS BEEN "ACQUITTED."  IN REALITY,
THE BALD ASSERTION THAT SISSON HAS BEEN "ACQUITTED" SIMPLY BEGS THE
MATTER AT ISSUE:  UNTIL ONE KNOWS WHAT A "MOTION IN BAR" IS, AS WELL AS
A "MOTION IN ARREST," AND HOW THE GRANTING OF SUCH MOTIONS DIFFERS FROM
GRANTING A JUDGMENT OF ACQUITTAL, ONE CANNOT CONFIDENTLY ATTACH ANY
LABEL TO JUDGE WYZANSKI'S ACTION. 

THE ONLY REASON THE MAJORITY GIVES FOR CONCLUDING THAT SISSON HAS
BEEN ACQUITTED IS BASED, NOT ON WHAT ACTUALLY HAPPENED, BUT ON WHAT
MIGHT HAVE HAPPENED.  SINCE JUDGE WYZANSKI COULD HAVE SUBMITTED THE
CASE TO THE JURY ON INSTRUCTIONS REFLECTING HIS VIEW OF THE LAW, AND
SINCE THE JURY SO INSTRUCTED COULD HAVE RETURNED A VERDICT OF "NOT
GUILTY," THEREFORE WE MUST PRETEND THAT THAT IS SENSE.  ONE DOES NOT
DETERMINE "WHAT IN LEGAL EFFECT (JUDGE WYZANSKI'S DECISION) ACTUALLY
WAS," ANTE, AT 279 N. 7, BY ASKING "WHAT IN LEGAL EFFECT THE DECISION
MIGHT HAVE BEEN."  IF THAT WERE THE KEY QUESTION, THEN THIS COURT
SHOULD NOT HAVE HAD JURISDICTION IN UNITED STATES V. COVINGTON, 395
U.S. 57 (1969) (HARLAN, J.).  THERE THE TRIAL JUDGE ACCEPTED THE
DEFENDANT'S ARGUMENT THAT THE FIFTH AMENDMENT PREVENTED THE MARIHUANA
TAX ACT FROM CONSTITUTIONALLY BEING APPLIED TO HIM.  UNDER THE
MAJORITY'S VIEW, THAT ACTION WOULD AMOUNT TO AN ACQUITTAL BECAUSE THE
JUDGE MIGHT HAVE GIVEN THE CASE TO THE JURY UNDER INSTRUCTIONS THAT IT
SHOULD ACQUIT IF IT FOUND THE FACTS NECESSARY TO SUSTAIN THE
DEFENDANT'S PRIVILEGE-- E.G., THAT HE WAS NOT ONE OF THE REGISTERED
MARIHUANA DEALERS WHOSE CONDUCT WAS LEGAL UNDER STATE LAW.  INDEED, IF
APPLIED CONSISTENTLY THE MAJORITY'S THEORY WOULD MEAN THAT THERE IS NO
CASE THAT COULD BE APPEALED TO THIS COURT UNDER THE "MOTION IN BAR"
PROVISION OF THE CRIMINAL APPEALS ACT.  FOR IT WILL ALWAYS BE TRUE THAT
A JUDGE MIGHT HAVE SENT THE CASE TO THE JURY UNDER INSTRUCTIONS
REFLECTING HIS VIEW THAT THE MOTION IN BAR WAS GOOD, SO THAT IF THE
JURY FOUND THE FACTS RELIED ON IN THE MOTION, IT SHOULD ACQUIT.  /4/ 

THE DIFFERENCE BETWEEN "WHAT MIGHT HAVE BEEN" AND WHAT ACTUALLY
HAPPENED IN THIS CASE IS LARGE AND CRITICAL.  WHERE THE JURY ACTUALLY
"ACQUITS" UNDER AN ERRONEOUS INSTRUCTION, A SUCCESSFUL APPEAL LEADING
TO REVERSAL AND A NEW TRIAL WOULD RAISE SERIOUS CONSTITUTIONAL PROBLEMS
BY PLACING THE DEFENDANT THROUGH THE HAZARDS OF ANOTHER TRIAL FOR THE
SAME OFFENSE.  IN THIS CASE, HOWEVER, THERE IS NO POSSIBILITY OF
SUBJECTING SISSON TO ANOTHER TRIAL, OR OF OVERTURNING A FACTFINDER'S
DECISION THAT, WHATEVER THE LAW, SISSON SHOULD GO FREE.  IF JUDGE
WYZANSKI'S LEGAL THEORY IS INCORRECT, THE JURY'S VERDICT OF GUILTY--
WITH JUDGMENT NO LONGER "ARRESTED"-- SIMPLY REMAINS IN EFFECT. 

IT WAS PRECISELY THIS DISTINCTION THAT SENATOR KNOX WAS REFERRING TO
IN THE PASSAGE QUOTED IN THE MAJORITY OPINION, ANTE, AT 289:  THE
DEFENDANT RETAINS THE BENEFIT OF ANY ERROR WHATEVER COMMITTED BY THE
COURT "IN THE TRIAL"; BUT THE GOVERNMENT GETS AN APPEAL "UPON QUESTIONS
OF LAW RAISED BY THE DEFENDANT TO DEFEAT THE TRIAL."  THE DISTINCTION
IS ALSO REFLECTED IN THE MAJORITY'S QUOTATION FROM UNITED STATES V.
BALL, ANTE, AT 289-290, WHERE THE QUESTION OF WHAT CONSTITUTES AN
"ACQUITTAL" IS TIED TO THE QUESTION OF WHETHER THE DEFENDANT WOULD BE
PUT "TWICE IN JEOPARDY" BY AN APPEAL. 

I SUSPECT THAT THE COURT'S RELUCTANCE TO DISCUSS THE "MOTION IN BAR"
PROVISION AND TO DISTINGUISH THE GRANTING OF SUCH MOTIONS FROM AN
ACQUITTAL STEMS FROM THE FACT THAT, UNLIKE THE "MOTION IN ARREST,"
THERE IS NO DOUBT THAT A "MOTION IN BAR" PROPERLY SETS FORTH AN
AFFIRMATIVE DEFENSE, WHICH NECESSARILY REQUIRES RESORT TO FACTS NOT
FOUND IN THE INDICTMENT OR ON THE FACE OF THE "RECORD."  THUS MOST OF
THE MAJORITY'S ARGUMENT THAT THIS CASE IS NOT APPEALABLE AS A "MOTION
IN ARREST" BECAUSE "(THE DECISION BELOW RESTS ON AFFIRMATIVE DEFENSES,"
ANTE, AT 287-288, IS SIMPLY IRRELEVANT AS FAR AS THE "MOTION IN BAR" IS
CONCERNED. 

IN FACT, AS THE MAJORITY SEEMS TO CONCEDE BY ITS RELUCTANCE TO
REJECT SQUARE PRECEDENT ON THE ISSUE, SEE ANTE, AT 300, N. 53, OUR
CASES MAKE CLEAR THAT THE PHRASE "MOTION IN BAR" WOULD INCLUDE A PLEA
LIKE SISSON'S THAT THE SELECTIVE SERVICE LAWS ARE UNCONSTITUTIONAL AS
APPLIED TO HIM.  THE COURT HAS NEVER ADOPTED THE VIEW THAT A "MOTION IN
BAR" ENCOMPASSES ONLY THE COMMON-LAW DEFENSES OF AUTREFOIS ACQUIT,
AUTREFOIS CONVICT, AND PARDON.  /5/  NEITHER DID CONGRESS WHEN IT
PASSED THE ACT.  THE DEBATES SHOW THAT THE PLEA IN BAR WAS THOUGHT TO
EMBRACE SUCH A VARIETY OF DEFENSES AS THE STATUTE OF LIMITATIONS, E.G.,
41 CONG.REC.  2749, AND A PLEA OF FIFTH AMENDMENT IMMUNITY, SEE 41
CONG.REC.  2753.  THE MOST THOROUGH DISCUSSION OF THE "MOTION IN BAR"
IN THIS COURT OCCURS IN THE CONCURRING AND DISSENTING OPINIONS IN
UNITED STATES V. MERSKY, 361 U.S. 431 (1960).  MR. JUSTICE BRENNAN
ARGUED THAT A MOTION IN BAR WOULD ENCOMPASS EVERY POSSIBLE AFFIRMATIVE
DEFENSE THAT WOULD PREVENT RETRIAL.  MR. JUSTICE STEWART ARGUED FOR A
NARROWER INTERPRETATION, SIMILAR TO THE CONCEPT OF A PLEA IN CONFESSION
AND AVOIDANCE, I.E., A PLEA THAT "DID NOT CONTEST THE FACTS ALLEGED IN
THE DECLARATION, BUT RELIED ON NEW MATTER WHICH WOULD DEPRIVE THOSE
FACTS OF THEIR ORDINARY LEGAL EFFECT."  ID., AT 457. 

EVEN UNDER THE NARROWER INTERPRETATION OF MR. JUSTICE STEWART,
SISSON'S PLEA QUALIFIES AS A "MOTION IN BAR."  FOR AS THE MAJORITY'S
OPINION MAKES CLEAR, THE CRUX OF THE CASE AGAINST SISSON WAS SIMPLY
WHETHER OR NOT HE HAD WILFULLY REFUSED TO SUBMIT TO INDUCTION; THE
QUESTION OF HIS SINCERITY WAS "NEW MATTER" RELIED ON TO DEPRIVE THE
FACT OF HIS WILFULL REFUSAL OF ITS ORDINARY LEGAL EFFECT.  SEE MAJORITY
OPINION, ANTE, AT 276; UNITED STATES V. BLUE, 384 U.S. 251, 254 (1966)
(HARLAN, J.).  JUST AS OUR CASES HAVE PERMITTED THE "MOTION IN BAR" TO
EMBRACE LIMIATIONS PLEAS, SEE E.G., UNITED STATES V. GOLDMAN, 277 U.S.
229 (1928), AND PLEAS OF CONSTITUTIONAL PRIVILEGE, SEE UNITED STATES V.
MURDOCK, 284 U.S. 141 (1931), SO TOO THEY PERMIT THE "MOTION IN BAR" TO
REACH CASES OF THIS SORT, ATTACKING THE VALIDITY OF THE STATUTE AS
APPLIED TO THE DEFENDANT.  SEE UNITED STATES V. COVINGTON, 395 U.S. 57
(1969) (HARLAN, J.); UNITED STATES V. BLUE, SUPRA, AT 254 (HARLAN,
J.). 

PROCEDURALLY, THE FACT THAT THE PLEA IS SUSTAINED ONLY AFTER A JURY
VERDICT OF CONVICTION-- AND THE FACT THAT THE JUDGE LABELED HIS ACTION
AS SOMETHING OTHER THAN A "MOTION IN BAR"-- DOES NOT PREVENT FINDING A
"MOTION IN BAR."  UNITED STATES V. ZISBLATT, 172 F.2D 740, 742 (C.A. 2D
CIR.), APPEAL DISMISSED, 366 U.S.934 (1949).  EVEN THE LEGISLATIVE
HISTORY RECOGNIZES THAT SUCH PLEAS COULD BE SUSTAINED AFTER THE TRIAL
HAD BEGUN.  41 CONG.REC.  2749 (REMARKS OF SENATOR RAYNER).  NOR IS
THERE ANY DOUBT-- UNLIKE THE CASE OF A MOTION IN ARREST-- THAT A PROPER
MOTION IN BAR RESULTS EVEN THOUGH FACTUAL ISSUES RELEVANT TO THE MOTION
HAVE TO BE TRIED.  SEE 41 CONG.REC.  2194 (REMARKS OF SENATOR WHYTE);
ID., AT 2753 (REMARKS OF SENATOR PATTERSON); UNITED STATES V. ZISBLATT,
SUPRA.  INDEED, MR. JUSTICE HARLAN RECENTLY REFERRED TO THE POSSIBILITY
OF TRYING FACTS TO THE JUDGE THAT WERE RELEVANT TO THE MOTION IN BAR,
AND SEPARATE FROM THE GENERAL ISSUE.  SEE UNITED STATES V. COVINGTON,
SUPRA, AT 60.  IN HIS WORDS, "(A) DEFENSE IS THUS 'CAPABLE OF
DETERMINATION' (WITHOUT TRIAL OF THE GENERAL ISSUE) IF TRIAL OF THE
FACTS SURROUNDING THE COMMISSION OF THE ALLEGED OFFENSE WOULD BE OF NO
ASSISTANCE IN DETERMINING THE VALIDITY OF THE DEFENSE."  IBID.  THAT
DESCRIPTION FITS THIS CASE PRECISELY SINCE, AS ALREADY NOTED, THE
MAJORITY ITSELF TAKES CAREFUL PAINS TO POINT OUT THAT THE "GENERAL
ISSUE"-- WHETHER SISSON WILFULLY REFUSED INDUCTION-- WAS AT ALL TIMES
SEPARATE FROM THE ISSUE RAISED BY SISSON'S CONSTITUTIONAL CLAIM.  /6/ 

THIS CASE, THEN, IS INDISTINGUISHABLE AS FAR AS THE "MOTION IN BAR"
PROVISION IS CONCERNED FROM UNITED STATES V. ZISBLATT, SUPRA, WHICH THE
MAJORITY CITES WITH APPROVAL THROUGHOUT ITS OPINION.  THERE, AS HERE,
THE DEFENDANT MOVED FOR DISMISSAL OF THE INDICTMENT ON THE BASIS OF AN
AFFIRMATIVE DEFENSE-- IN THAT CASE THE STATUTE OF LIMITATIONS.  THERE,
AS HERE, THE JUDGE RESERVED RULING ON THE MOTION UNTIL AFTER THE JURY
HAD RETURNED A VERDICT OF GUILTY.  THERE, AS HERE, THE JUDGE THEN
GRANTED THE DEFENDANT'S MOTION, RELYING ON MATTERS "OUTSIDE THE
RECORD."  THE GOVERNMENT APPEALED TO THE COURT OF APPEALS, WHERE THE
QUESTION BECAME WHETHER OR NOT THE APPEAL SHOULD HAVE BEEN TAKEN
DIRECTLY TO THIS COURT UNDER THE CRIMINAL APPEALS ACT.  JUDGE LEARNED
HAND, IN DECIDING THAT THE TRIAL COURT'S ACTION AMOUNTED TO SUSTAINING
A MOTION IN BAR, MADE SHORT SHRIFT OF THE ARGUMENT THAT THE CASE WAS
INDISTINGUISHABLE FROM THE CASE OF A DIRECTED VERDICT OF ACQUITTAL. 

"HAD THE TRIAL JUDGE DIRECTED A VERDICT, SO THAT IT WOULD HAVE BEEN
NECESSARY UPON REVERSAL TO SUBJECT THE DEFENDANT TO TRIAL BEFORE A
SECOND JURY, THAT WOULD BE 'DOUBLE JEOPARDY,' BUT, ALTHOUGH THE
CONSTITUTION GIVES AN ACCUSED PERSON THE BENEFIT OF ANY MISTAKES IN HIS
FAVOR OF THE FIRST JURY HE ENCOUNTERS, WHETHER IT HAS PASSED UPON HIS
GUILT OR NOT, IT DOES NOT EXTEND THAT PRIVILEGE TO MISTAKES IN HIS
FAVOR BY JUDGES.  INDEED, WERE THE OPPOSITE TRUE, ALL APPEALS FROM
DECISIONS IN ARREST OF JUDGMENT WOULD BE CONSTITUTIONALLY FUTILE
BECAUSE NO JUDGMENT OF CONVICTION COULD BE ENTERED WHEN THEY WERE
REVERSED."  172 F.2D, AT 743.     THE SOLE QUESTION, THEN, IN THIS CASE
AS IN ZISBLATT, IS WHETHER THE DEFENDANT HAS BEEN "PUT IN JEOPARDY" AS
THAT PHRASE IS USED IN THE CRIMINAL APPEALS ACT.  THAT QUESTION IN TURN
CENTERS ON WHETHER THE PHRASE IS TO BE READ LITERALLY, IN WHICH CASE A
DFENDANT WOULD BE IN JEOPARDY AS SOON AS A JURY WAS IMPANELED, OR
WHETHER THE PHRASE IS TO MEAN "CONSTITUTIONAL"  OR "LEGAL" JEOPARDY, IN
THE SENSE THAT EVEN IF THE GOVERNMENT WERE TO SUCCEED ON APPEAL, IT
WOULD BE UNABLE TO TAKE ADVANTAGE OF ITS SUCCESS IN NEW PROCEEDINGS
AGAINST THE DEFENDANT.  ALTHOUGH THE GOVERNMENT HAS CHOSEN TO READ THE
STATUTE IN THE FORMER, LITERAL SENSE, THIS COURT HAS NEVER RESOLVED THE
ISSUE.  JUDGE LEARNED HAND THOUGHT THERE WAS A "MORE THAN PLAUSIBLE
ARGUMENT" FOR THE LATTER, "LEGAL JEOPARDY" VIEW, BUT THE GOVERNMENT
DISMISSED ITS APPEAL TO THIS COURT BEFORE THE QUESTION COULD BE
DECIDED.  UNITED STATES V. ZISBLATT, SUPRA, AT 742. 

THE LEGISLATIVE HISTORY OF THE 1907 ACT UNMISTAKABLY SHOWS THAT
CONGRESS MEANT TO ALLOW THE GOVERNMENT AN APPEAL FROM A DECISION
SUSTAINING A MOTION IN BAR IN EVERY CASE EXCEPT WHERE THE DEFENDANT WAS
ENTITLED TO THE PROTECTION OF THE CONSTITUTIONAL GUARANTEE AGAINST
DOUBLE JEOPARDY.  I FIND THE DEBATES SO CONVINCING ON THAT POINT THAT I
AM AT A LOSS TO UNDERSTAND WHY THE GOVERNMENT HAS SO READILY CONCEDED
THE ISSUE UNLESS IT BE TO MAINTAIN THE APPEARANCE OF CONSISTENCY, AND
TO PROTECT ITS INTERESTS IN SECURING NEW CRIMINAL APPEALS LEGISLATION
BEFORE CONGRESS.  /7/  CERTAINLY THAT CONCESSION DOES NOT BIND THIS
COURT; /8/  EVEN MORE CERTAINLY IT IS NO EXCUSE FOR THE MAJORITY'S
FAILURE TO CONDUCT ITS OWN EXAMINATION OF THE RELEVANT DEBATES. 

OUT OF THREE FULL DAYS OF DEBATE IN THE SENATE, COVERING MORE THAN
30 PAGES OF THE CONGRESSIONAL RECORD, SEE 41 CONG.REC.  2190-2197, 2744
2763, 2818-2825, THE MAJORITY FINDS A TOTAL OF THREE PASSAGES TO CITE
IN A FOOTNOTE AS SUPPORT FOR ITS INTERPRETATION, SEE ANTE, AT 304-305,
N. 57.  IN EACH CASE, THE STATEMENTS PLACED IN CONTEXT PROVE JUST THE
OPPOSITE OF THE MAJORITY'S CONCLUSION.  THE FIRST REFERENCE, TO A
PASSAGE BEFORE DEBATE EVEN BEGAN, 40 CONG.REC.  9033, IS TO SENATOR
SPOONER'S QUESTION WHETHER THE BILL APPLIED ONLY TO QUESTIONS ARISING
BEFORE THE IMPANELING OF THE JURY.  AS THE MAJORITY ACKNOWLEDGES,
SENATOR NELSON IMMEDIATELY CORRECTED SENATOR SPOONER, POINTING OUT THAT
THE KEY QUESTION WAS "JEOPARDY," NOT THE IMPANELING OF THE JURY.  THE
ENTIRE BRIEF EXCHANGE OCCURRED BEFORE THE BILL WAS DEBATED, FURTHER
CONSIDERATION HAVING IMMEDIATELY BEEN POSTPONED BY THE OBJECTION OF
OTHER SENATORS TO PURSUING THE MATTER AT THAT TIME.  SEE F. FRANKFURTER
& J. LANDIS.  THE BUSINESS OF THE SUPREME COURT 117 N. 68 (1928).  WHEN
DEBATE WAS RESUMED AT THE NEXT SESSION OF CONGRESS, SENATOR SPOONER
UNMISTAKABLY INDICATED THATJEOPARDY WAS BEING USED IN THE
CONSTITUTIONAL, LEGAL SENSE, IN DIRECT OPPOSITION TO THE VIEWS THE
MAJORITY NOW TRIES TO ASCRIBE TO HIM: 

"THE QUESTION IS WHETHER IT SUBJECTS A MAN UNDER ANY ASPECT OF IT TO
THE DANGER OF DOUBLE JEOPARDY. 

        *          *          *          *

  I AM CONTENT TO LEAVE IT, UNDER THE BILL, IF IT SHALL BECOME A
LAW, TO THE SUPREME COURT OF

THE UNITED STATES.  IT IS THEIR FUNCTION TO DETERMINE WHAT IS
JEOPARDY.  IT IS THEIR FUNCTION

  TO PROTECT THE CITIZENS OF THE UNITED STATES AGAINST ANY INVASION
OF THE CONSTITUTIONAL

  GUARANTY AS TO DOUBLE JEOPARDY.  I THINK WE CAN RELY UPON THE
COURT TO PROTECT AS FAR AS THE

  CONSTITUTION REQUIRES IT ALL DEFENDANTS.  . . . "  41 CONG.REC. 
2762-2763 (REMARKS OF

  SEN. SPOONER). 

IN THE SECOND PASSAGE, 41 CONG.REC.  2191, THE MAJORITY QUOTES
SENATOR NELSON FOR THE PROPOSITION THAT NO APPEAL WOULD LIE WHERE A
JURY HAD BEEN IMPANELED.  THE ACTUAL QUOTATION IS THAT NO APPEAL WOULD
LIE "WHERE A JURY HAS BEEN IMPANELED AND WHERE THE DEFENDANT HAS BEEN
TRIED.  . . . "  41 CONG.REC.  2191.  IN CONTEXT, IT IS CLEAR THAT
SENATOR NELSON IS VENTURING AN INTERPRETATION OF "JEOPARTY" IN THE
LEGAL SENSE.  THE WHOLE DISPUTE AT THIS POINT IN THE DEBATE IS
PRIMARILY BETWEEN SENATOR RAYNER WHO OPPOSED THE BILL, AND SENATORS
BACON AND NELSON, WHO SUPPORTED THE BILL.  THE PROPONENTS WERE AT PAINS
TO SHOW THAT A PERSON COULD NOT BE "PUT TWICE IN JEOPARDY" UNDER ANY OF
THE PROVISIONS OF THE BILL, 41 CONG.REC.  2193 (REMARKS OF SEN.
MCCUMBER; REMARKS OF SEN. BACON).  SENATOR RAYNER WAS INTENT ON SHOWING
HOW DIFFICULT IT WAS FOR ANYONE TO GIVE AN ADEQUATE DEFINITION OF JUST
WHAT "LEGAL JEOPARDY" IS-- HE SUPPORTED A RETURN TO THE HOUSE
SUGGESTION, WHICH WOULD HAVE GIVEN THE DEFENDANT THE BENEFIT OF HIS
FAVORABLE DECISION WHETHER OR NOT HE HAD BEEN "PUT IN JEOPARDY."  BUT
NO A SINGLE PASSAGE CAN BE CITED TO SHOW THAT EITHER SIDE HAD THE
SLIGHTEST INKLING THAT "JEOPARDY" WAS BEING USED IN ANY BUT ITS
TECHNICAL, LEGAL SENSE AS INTERPRETED BY THIS COURT AND STATE COURTS. 
THAT WAS THE WHOLE POINT OF SENATOR RAYNER'S OBJECTION:  "JEOPARDY" WAS
TOO VAGUE A TERM, BECAUSE NOBODY COULD DECIDE EXACTLY WHEN
CONSTITUTIONAL JEOPARDY HAD ATTACHED.  HOW THE MAJORITY CAN RELY ON
SENATOR NELSON FOR THE CONCLUSION THAT "JEOPARDY"  MEANS "LITERAL"
JEOPARDY IS PARTICULARLY DIFFICULT TO UNDERSTAND, GIVEN THE SENATOR'S
OWN UNAMBIGUOUS EXPLANATION THAT AS AUTHOR OF THE BILL, WHAT HE MEANT
WAS "CONSTITUTIONAL" JEOPARDY:

"I AIMED TO PUT THE BILL IN SUCH A FORM THAT IT WOULD COVER EXACTLY
THOSE CASES IN WHICH THE DEFENDANT HAD NOT BEEN PUT IN JEOPARDY UNDER
THE CONSTITUTION OF THE UNITED STATES.  I BELIEVE THAT THE BILL IS
LIMITED STRICTLY TO THAT MATTER."  41 CONG.REC.  2757. 

SENATOR BACON DURING THIS SAME EXCHANGE NOTED THAT THE "JEOPARDY"
PROVISIONS HAD BEEN PUT IN "OUT OF ABUNDANCE OF CAUTION," 41 CONG.REC. 
2191.  HE PROCEEDED TO EXPLAIN BY HIS REMARKS THAT HE MEANT PRECISELY
WHAT THE MAJORITY TODAY DECLARES HE COULD NOT HAVE MEANT-- NAMELY, THAT
CONGRESS WAS SIMPLY EMPHASIZING THAT IT WAS NOT ATTEMPTING TO SUBJECT A
DEFENDANT TO CONSTITUTIONAL DOUBLE JEOPARDY BY A SUCCESSFUL GOVERNMENT
APPEAL.  IN FACT, WHEN ONE OF THE SENATORS ASKED WHETHER "JEOPARDY" WAS
TO BE TAKEN IN A POSSIBLY LITERAL SENSE, SENATOR BACON HASTENED TO
REPLY: 

"THAT IS NOT WHAT THE LAW MEANS BY BEING PUT IN JEOPARDY AT ALL. 
THE WORDS 'BEING IN JEOPARDY' ARE ENTIRELY A TECHNICAL PHRASE, WHICH
DOES NOT RELATE TO THE FACT THAT A MAN IS IN DANGER AS SOON AS AN
INDICTMENT IS PREFERRED AGAINST HIM."  41 CONG.REC.  2192.  IT IS
HARDLY "SUPERFLUOUS" FOR CONGRESS TO GUARD AGAINST A CONSTRUCTION OF AN
ACT THAT MIGHT RENDER THE ACT UNCONSTITUTIONAL.  AND THE FACT THAT THE
MAJORITY WOULD HAVE WRITTEN THE STATUTE DIFFERENTLY TO AVOID WHAT IT
CALLS A "SUPERFLUOUS" READING, IS NO EXCUSE FOR IGNORING THE EXPLICIT
INDICATION THAT THAT IS EXACTLY THE READING THAT CONGRESS MEANT THE
PHRASE TO BEAR.  /9/ 

THE MAJORITY'S FINAL PASSAGE REFERS TO A REMARK BY SENATOR PATTERSON
SUGGESTING THAT A MOTION IN ARREST WAS THE ONLY PROVISION UNDER THE
BILL THAT COULD BE RAISED AFTER A TRIAL HAD BEGUN.  AS THE MAJORITY
CONCEDES, ONE NEED ONLY READY ON A BIT FURTHER TO DISCOVER THAT SENATOR
PATTERSON IMMEDIATELY RETRACTED THAT SUGGESTION WHEN CHALLENGED,
INSISTING THAT A "MOTION IN BAR" COULD ALSO BE GRANTED AFTER TRIAL HAD
BEGUN AND THAT AN APPEAL WOULD LIE AS LONG AS NO PROBLEM OF
"CONSTITUTIONAL JEOPARDY" WAS PRESENTED.  INDEED, SENATOR PATTERSON
ARGUED VIGOROUSLY THAT THERE WOULD HAVE BEEN JURISDICTION IN THE BEEF
TRUST CASE-- A CASE IN WHICH THE MOTION IN BAR WAS NOT ONLY GRANTED
AFTER TRIAL HAD BEGUN, BUT WAS ALSO REFLECTED IN THE JUDGE'S
INSTRUCTIONS TO THE JURY.  SENATOR PATTERSON'S REMARKS ARE PARTICULARLY
INTERESTING BECAUSE, APART FROM WHETHER HE IS RIGHT ON THE QUESTION OF
CONSTITUTIONAL JEOPARDY, HE MAKES CLEAR THE DISTINCTION BETWEEN A
MOTION IN BAR AND AN ACQUITTAL WHICH THE MAJORITY BLITHELY IGNORES: 

     "A SPECIAL PLEA IN BAR . . . IS A PLEA THAT DOES NOT RELATE TO

  THE GUILT OR INNOCENCE OF THE DEFENDANT IN THE SENSE AS TO

WHETHER HE DID OR NOT COMMIT THE ACT FOR WHICH HE WAS INDICTED. 

  A SPECIAL PLEA IN BAR IS THAT WHICH IS SET UP AS A SPECIAL

  DEFENSE NOTWITHSTANDING THE DEFENDANT MAY BE GUILTY OF THE

  OFFENSES WITH WHICH HE IS CHARGED; IT IS FOR SOME OUTSIDE MATTER;

  YET IT MAY HAVE BEEN CONNECTED WITH THE CASE.  THE SPECIAL PLEA

  IN BAR THAT WAS FILED BY THE INDICATED CHICAGO PACKERS IS A VERY

  GOOD ILLUSTRATION OF THAT.  THEIR PLEA IN BAR SET FORTH THE FACT

  OF THEIR HAVING BEEN INDUCED OR LED, WHATEVER IT MAY HAVE BEEN,

  TO MAKE COMMUNICATIONS TO THE LAW OFFICERS OF THE GOVERNMENT WITH

  REFERENCE TO THEIR BUSINESS THAT GAVE THE DISTRICT ATTORNEY

  INFORMATION WHICH ENABLED HIM TO BRING ABOUT THE INDICTMENTS AND

  TO HELP IN THEIR PROSECUTION.  THAT HAD NO REFERENCE TO THE GUILT

  OR INNOCENCE OF THE ACCUSED.  IT WAS A PLEADING OF FACT THAT WAS

  INDEPENDENT OF THE CRIME FOR WHICH THOSE PACKERS HAD BEEN

  INDICTED. 

"THEREFORE, MR. PRESIDENT, THERE COULD BE NO JEOPARDY IN A CASE

  OF THAT KIND WHERE THERE WAS A DECISION UPON THE SPECIAL PLEA IN

  BAR, BECAUSE IT IS NOT UNDER A PLEA OF GUILTY OR NOT GUILTY THAT

  THE INSUFFICIENCY OF A SPECIAL PLEA IN BAR IS DETERMINED; IT IS

  NON OBSTANTE WHETHER THE DEFENDANT IS GUILTY OR NOT GUILTY."  41

  CONG.REC.  2753. 

IT IS OBVIOUS FROM THESE REMARKS THAT SENATOR PATTERSON DID NOT
THINK THAT THE QUESTION OF "JEOPARDY" UNDER THE MOTION-IN-BAR PROVISION
WAS SIMPLY A QUESTION OF WHETHER THE JURY HAD BEEN IMPANELED.  /10/ 

THIS INTERPRETATION IS MADE DOUBLY CLEAR BY THE REMARKS OF SENATOR
NELSON, THE LEADING PROPONENT OF THE BILL.  HE ALSO ADDRESSED HIMSELF
TO THE BEEF TRUST CASE AND, UNLIKE SENATOR PATTERSON, HE SUGGESTED THAT
THAT CASE COULD NOT HAVE BEEN APPEALED UNDER THE ACT.  BUT THE REASON
HE GAVE FOR THAT CONCLUSION WAS NOT THAT THE JURY HAD BEEN IMPANELED,
BUT THAT THE JURY HAD BEEN IMPANELED AND HAD RETURNED A VERDICT OF NOT
GUILTY UNDER THE JUDGE'S INSTRUCTIONS, THUS PLACING THE DEFENDANTS IN
"LEGAL JEOPARDY": 

"IN THAT CASE A JURY WAS IMPANELED, AND THE QUESTION WHETHER THE
DEFENDANTS WERE ENTITLED TO IMMUNITY UNDER THE IMMUNITY LAW BECAUSE
THEY HAD FURNISHED MR. GARFIELD AND THE OFFICIALS OF HIS BUREAU
INFORMATION WAS SUBMITTED TO THE JURY, AND THE JURY UNDER INSTRUCTIONS
OF THE COURT FOUND FOR THE DEFENDANTS.  IN THAT CASE THE DEFENDANTS
UNDER THE CONSTITUTION HAD BEEN IN JEOPARDY AND IN THAT BEEF-TRUST CASE
NO APPEAL COULD LIE."  41 CONG.REC.  2757.  SEE 41 CONG.REC.  2750
(REMARKS OF SENATOR NELSON). 

SENATOR NELSON WAS THUS TALKING ABOUT THE MAJORITY'S "MIGHT HAVE
BEEN CASE"-- THE CASE WHERE THE JUDGE GIVES THE MOTION IN BAR ISSUE TO
THE JURY UNDER HIS NOVEL VIEW OF THE LAW, SO THAT A SUCCESSFUL
GOVERNMENT APPEAL WOULD REQUIRE RETRYING THE DEFENDANT.  IN THE
IMMEDIATELY FOLLOWING PASSAGE, SENATOR NELSON MAKES CLEAR THAT IF THE
FACTS PLEADED IN THE SPECIAL ISSUE ARE NOT SUBMITTED TO THE JURY, BUT
TRIED TO THE JUDGE, THERE WOULD BE NO BAR TO TAKING AN APPEAL.  BUT IN
BOTH CASES, SENATOR NELSON, LIKE SENATOR PATTERSON, IS QUITE OBVIOUSLY
GIVING HIS VIEWS AS TO WHAT "CONSTITUTIONAL JEOPARDY" MEANS. 

WHILE THE DEBATES ARE REPLETE WITH OTHER INDICATIONS THAT CONGRESS'
CONCERN WAS WITH "DOUBLE JEOPARDY," NOT "LITERAL JEOPARDY," THE
CLEAREST SUCH INDICATION OCCURS IN THIS VERY EXCHANGE BETWEEN SENATOR
RAYNER, WHO ANNOUNCED HIS OPPOSITION TO THE BILL IN ANY FORM, 41
CONG.REC.  2745, AND SENATORS SPOONER, PATTERSON, AND NELSON--
PROPONENTS OF THE BILL.  THE EXCHANGE OCCUPIED MOST OF THE SECOND DAY
OF THE THREE DAYS OF DEBATE IN THE SENATE AND CENTERED ALMOST ENTIRELY
ON SENATOR RAYNER'S PROPOSED AMENDMENT.  THE EXAMPLE THAT SENATOR
RAYNER USED TO ILLUSTRATE THE DIFFICULTIES HE SAW IN THE BILL WAS A
HYPOTHETICAL CASE IN WHICH A PLEA IN BAR-- A LIMITATIONS PLEA-- WAS
SUSTAINED HALFWAY THROUGH THE TRIAL.  SEE 41 CONG.REC.  2749.  IN THAT
CASE, SENATOR RAYNER ARGUED, NO ONE COULD SAY WITH CERTAINTY WHETHER
THE DEFENDANT HAD BEEN PUT IN JEOPARDY, AND HENCE WHETHER HE COULD
CONSTITUTIONALLY BE RETRIED IF THE GOVERNMENT'S APPEAL WERE
SUCCESSFUL.  SENATOR RAYNER DID NOT WANT TO LEAVE THE DEFENDANT'S FATE
TO DEPEND ON "THIS HOWLING WILDERNESS OF CONFUSION UPON THE SUBJECT OF
WHAT CONSTITUTES LEGAL JEOPARDY."  41 CONG.REC.  2750.  HIS AMENDMENT
WOULD THUS HAVE GUARANTEED THAT A DEFENDANT COULD NEVER BE RETRIED--
WHATEVER THE ULTIMATE RESOLUTION OF THE "LEGAL JEOPARDY" QUESTION. 
THOSE WHO OPPOSED THE AMENDMENT ARGUED THAT IF IT HAD ANY SUBSTANTIVE
EFFECT, IT WOULD MAKE THE QUESTION ON ANY APPEAL "MOOT"; THAT IT WAS
ENOUGH TO MAKE SURE THAT THE GOVERNMENT WAS NOT ALLOWED TO SECURE A
REVERSAL AND PROCEED AGAIN WHERE THE RESULT WOULD PLACE THE DEFENDANT
IN "DOUBLE JEOPARDY"; AND THAT THE BILL WOULD LEAVE TO THE SUPREME
COURT THE QUESTION OF WHAT IS "JEOPARDY," AND HENCE PROTECTION "AGAINST
ANY INVASION OF THE CONSTITUTIONAL GUARANTY AS TO DOUBLE JEOPARDY."  41
CONG.REC.  2761-2763; SEE ALSO 41 CONG.REC.  2193.  BUT IT IS CLEAR--
INDEED IT WAS AGAIN CRUCIAL TO SENATOR RAYNER'S ARGUMENT-- THAT THE
SENATORS ASSUMED THAT "JEOPARDY" WAS BEING USED IN THE LEGAL SENSE: 

"THE QUESTION IS WHETHER IT SUBJECTS A MAN UNDER ANY ASPECT OF IT TO
THE DANGER OF DOUBLE JEOPARDY. 

        *          * *          * 

"THE SENATOR (RAYNER) SAYS HE DOES NOT CARE WHETHER IT IS DOUBLE
JEOPARDY OR NOT.  EVEN IF A MAN UNDER THE CONSTITUTION MAY PROPERLY AND
LAWFULLY BE PUT ON TRIAL AGAIN, IF HE HAS BEEN TRIED ONCE, EVEN THOUGH
IT WERE A MISTRIAL, IF HE HAD BEEN FOR A MOMENT IN JEOPARDY, HE INSISTS
THAT WE SHALL PROVIDE BY LAW, NO MATTER WHAT THE CASE MAY BE, THAT HE
SHALL NOT BE TRIED AGAIN; THAT HE SHALL GO ACQUIT.              *
*          *          * 

"THE MATTER HAS BEEN THOROUGHLY ARGUED.  I AM CONTENT TO LEAVE IT,
UNDER THE BILL, IF IT SHALL BECOME A LAW, TO THE SUPREME COURT OF THE
UNITED STATES.  IT IS THEIR FUNCTION TO DETERMINE WHAT IS JEOPARDY.  IT
IS THEIR FUNCTION TO PROTECT THE CITIZENS OF THE UNITED STATES AGAINST
ANY INVASION OF THE CONSTITUTIONAL GUARANTY AS TO DOUBLE JEOPARDY.  I
THINK WE CAN RELY UPON THE COURT TO PROTECT AS FAR AS THE CONSTITUTION
REQUIRES IT ALL DEFENDANTS, WITHOUT SUPPLEMENTING THE CONSTITUTION BY
THE SENATOR'S AMENDMENT TO THIS BILL."  41 CONG.REC.  2762-2763
(REMARKS OF SENATOR SPOONER).  /11/ 

SENATOR RAYNER'S HYPOTHETICAL EXAMPLE OF A PLEA IN BAR SUSTAINED
AFTER TRIAL HAD BEGUN-- AN EXAMPLE ACCEPTED WITHOUT QUESTION BY
SENATORS PATTERSON, NELSON, AND SPOONER, AND EVERY OTHER SENATOR
PARTICIPATING IN THE DEBATE-- COMPLETELY UNDERCUTS THE MAJORITY'S
ASSERTION THAT CONGRESS THOUGHT THERE WOULD BE NO APPEAL ONCE THE JURY
HAD BEEN IMPANELED.  INDEED, IN THE FACE OF THE ARGUMENTS OVER THE
MEANING OF "JEOPARDY" AND SENATOR RAYNER'S VIGOROUS ATTACK ON THE
VAGUENESS OF THAT TERM, IT IS NOTHING SHORT OF INCREDIBLE FOR THE
MAJORITY TO SUGGEST THAT CONGRESS LEFT THAT LANGUAGE IN THE ACT,
INTENDING IT TO BE INTERPRETED AS PROVING "A CLEAR, EASILY ADMINISTERED
TEST," ANTE, AT 307.  IF CONGRESS HAD INTENDED THE MAJORITY'S
INTERPRETATION IT WOULD HAVE BEEN BOTH SIMPLE AND LOGICAL TO EXPLICITLY
LIMIT APPEALS TO CASES "WHERE THE JURY HAS NOT YET BEEN IMPANELED,"
THUS AVOIDING THE POSSIBILITY OF CONFUSION WHICH HAD BEEN THE VERY
TOPIC OF DISCUSSION FOR THREE FULL DAYS OF DEBATE. 

THE PLAIN FACT OF THE MATTER IS THAT THE MAJORITY'S POST HOC
RATIONALIZATION OF THE ACT SIMPLY WAS NOT THAT OF CONGRESS.  WHILE THE
DEBATES SHOW CONSIDERABLE DISAGREEMENT ABOUT THE MEANING OF "JEOPARDY"
IN THE LEGAL SENSE, THERE IS NOT THE SLIGHTEST SUGGESTION ANYWHERE IN
THE LEGISLATIVE HISTORY THAT "JEOPARDY" IS BEING USED IN ANY OTHER
SENSE.  EVEN WHERE REFERENCES OCCUR TO THE IMPANELING OF THE JURY AS
THE MOMENT WHEN JEOPARDY ATTACHES, IT IS CLEAR THAT JEOPARDY IS STILL
BEING USED IN ITS LEGAL SENSE-- AFTER ALL, AS THE MAJORITY ITSELF
NOTES, ANTE, AT 305, THE IMPANELING OF THE JURY DOES IN FACT OFTEN
BECOME THE CONSTITUTIONALLY RELEVANT POINT IN DETERMINING THAT "LEGAL
JEOPARDY" HAS ATTACHED TO PREVENT A REPROSECUTION.  BUT THE ONE POINT
ON WHICH THERE WAS UNANIMOUS AGREEMENT-- EVEN FROM SENATOR RAYNER, SEE,
E.G., 41 CONG.REC.  2748-- ABOUT THE MEANING OF "JEOPARDY," WAS THAT
WHERE A CONVICTED DEFENDANT ON HIS OWN MOTION HAD SECURED THE ARREST OF
A JURY'S VERDICT OF GUILTY, HE HAD NOT BEEN PLACED IN "JEOPARDY." 
"(THE DEFENDANT COULD NOT COMPLAIN, EITHER IF THE JUDGMENT OF THE COURT
SHALL BE ENTERED UPON THE VERDICT OR A NEW TRIAL SHALL BE ORDERED,
BECAUSE IT IS GIVING TO THE DEFENDANT A NEW OPPORTUNITY TO GO ACQUIT
WHEN, UNDER THE TRIAL THAT WAS HAD, HE HAD BEEN CONVICTED."  41
CONG.REC.  2753. 

FOR THIS COURT TO HOLD THAT SISSON HAS BEEN PLACED IN JEOPARDY UNDER
THE MOTION-IN-BAR PROVISIONS, THUS DEFEATING JURISDICTION, THE COURT
MUST BE PREPARED TO HOLD THAT A SUCCESSFUL APPEAL BY THE GOVERNMENT,
RESULTING IN AN ORDER THAT JUDGMENT BE ENTERED ON THE VERDICT, WOULD
VIOLATE SISSON'S DOUBLE JEOPARDY PROTECTION.  JUDGE LEARNED HAND
REFUSED EVEN TO CONSIDER SUCH A SUGGESTION IN ZISBLATT:  "SO LONG AS
THE VERDICT OF GUILTY REMAINS AS A DATUM, THE CORRECTION OF ERRORS OF
LAW IN ATTACHING THE PROPER LEGAL CONSEQUENCES TO IT (DOES) NOT TRENCH
UPON THE CONSTITUTIONAL PROHIBITION."  172 F.2D, AT 743. 

        III 

I FIND EXTREMELY PECULIAR THE PATH THAT THE COURT FOLLOWS IN
REACHING ITS CONCLUSION THAT WE CANNOT HEAR THIS CASE.  THE "MOTION IN
ARREST" PROVISION IS CONFINED TO ITS EARLY COMMON-LAW SENSE, ALTHOUGH
THERE IS ABSOLUTELY NO INDICATION THAT CONGRESS WAS USING THE PHRASE IN
THAT SENSE, AND WE HAVE NEVER SIMILARLY LIMITED THE "MOTION IN BAR"
PROVISION TO ITS COMMON-LAW SCOPE.  THE ALLEGED TROUBLE WITH THE
"MOTION IN ARREST" IS NOT ANY PROBLEM OF JEOPARDY, BUT THE FACT THAT
JUDGE WYZANSKI RELIED ON FACTS OUTSIDE THE FACE OF THE "RECORD." 
CONVERSELY, THE TROUBLE WITH THE "MOTION IN BAR" PROVISION IS NOT THE
USE OF OUTSIDE FACTS, BUT SOLELY THE FEAR THAT SISSON WAS "PUT IN
JEOPARDY."  IF THIS WERE A MOTION IN ARREST, THERE WOULD BE NO
"JEOPARDY" PROBLEM; AND IF THIS WERE A MOTION IN BAR, RESORT TO OUTSIDE
FACTS WOULD POSE NO PROBLEM.  THE APPARENT INCONSISTENCY AND THE
REFUSAL TO HEAR THE CASE APPEAR TO BE DUE TO A DOGGED DETERMINATION TO
FIT JUDGE WYZANSKI'S ACTION INTO ONE "COMMON-LAW PIGEONHOLE," UNITED
STATES V. MERSKY, 361 U.S. 431, 443 (BRENNAN, J., CONCURRING), OR THE
OTHER WHILE PAYING SCANT ATTENTION TO THE REASON FOR TRYING TO MAKE THE
FIT IN THE FIRST PLACE, WITH THE RESULT THAT JUDGE WYZANSKI'S ACTION IS
TO BE GIVEN THE NO LESS DISTORTING LABEL OF "ACQUITTAL." 

THE QUESTION IN THIS CASE SHOULD SIMPLY BE WHETHER OR NOT A JUDGE
WHO UPHOLDS A CLAIM OF CONSTITUTIONAL PRIVILEGE, THEREBY DECLARING THE
STATUTE UNCONSTITUTIONAL AS APPLIED, HAS ENTERED A JUDGMENT THAT
CONGRESS INTENDED THIS COURT TO BE ABLE TO REVIEW.  SURELY IN A STATUTE
AS UNCLEAR AND AMBIGUOUS AS THE MAJORITY SAYS THIS UNHAPPY ACT IS, THE
"WORDS" OF THE STATUTE ARE ONLY THE FIRST PLACE TO START THE TASK OF
INTERPRETATION.  THE PRIMARY GUIDE TO INTERPRETATION SHOULD BE THE
STATUTE'S PURPOSE, AS INDICATED BY THE EVIL THAT PROMPTED IT, AND BY
THE LEGISLATIVE HISTORY. 

THE ACT WAS PASSED TO REMEDY THE SITUATION THAT GAVE A SINGLE
DISTRICT JUDGE THE POWER TO DEFEAT ANY CRIMINAL PROSECUTION INSTITUTED
BY THE GOVERNMENT, AND TO ANNUL AS UNCONSTITUTIONAL, ATTEMPTS BY
CONGRESS TO REACH A DEFENDANT'S SPECIFIED CONDUCT THROUGH THE USE OF
THE CRIMINAL MACHINERY.  OVER AND OVER, THIS THEME IS REPEATED IN THE
DEBATES ON THE BILL, DOMINATING EVERY OTHER TOPIC OF DISCUSSION EXCEPT
THE CONCERN FOR SAFEGUARDING THE DEFENDANT'S PRIVILEGE AGAINST DOUBLE
JEOPARDY.  AS THE CHIEF JUSTICE'S OPINION DETAILS, IT IS DIFFICULT TO
IMAGE A CASE MORE CLOSELY FITTING THE TYPE OF CASE IN WHICH CONGRESS
INTENDED TO ALLOW AN APPEAL THAN THE INSTANT ONE. 

THE MAJORITY SUGGESTS THAT WE MUST REMEMBER THAT THE ACT WAS "A
COMPROMISE," AND THAT CONGRESS WAS VERY CONCERNED ABOUT NOT UNDULY
ENCROACHING ON THE RIGHTS OF THE DEFENDANT.  BUT THE "COMPROMISE"
BETWEEN THE HOUSE AND THE SENATE WAS ONLY OVER THE AREAS IN WHICH TO
ALLOW APPEAL-- THERE WAS COMPLETE ACCORD THAT CONSTITUTIONAL CASES OF
THIS SORT CONSTITUTED ONE OF THOSE AREAS; THEY WERE INDEED THE ACT'S
RAISON D'ETRE.  SIMILARLY WHILE CONGRESS WAS CONCERNED TO PROTECT THE
DEFENDANT'S RIGHTS, IT HAD NO DOUBT THAT THOSE RIGHTS WERE NOT INVADED
WHERE A DEFENDANT HAD BEEN FOUND GUILTY, AND THE GOVERNMENT APPEALED
THE JUDGE'S DECISION THAT FOR LEGAL REASONS THE VERDICT COULD NOT
STAND.  THE MAJORITY, IN SHORT, PAYS LIP SERVICE TO THE POLICIES OF THE
ACT WITHOUT EVER APPLYING THOSE POLICIES TO THE QUESTION PRESENTED IN
THE CASE BEFORE IT.  JUDGE WYZANSKI, ANXIOUS TO DO HIS DUTY AS HE SAW
IT, AND YET AWARE THAT ULTIMATE RESOLUTION OF THE CONSTITUTIONAL ISSUE
PROPERLY BELONGS IN THIS COURT, HAD TWO MEANS OF PASSING ON THE ISSUE
WHILE STILL PROTECTING SISSON'S RIGHTS:  HE COULD HAVE GRANTED SISSON'S
MOTION AFTER A PRETRIAL HEARING, SEE UNITED STATES V. COVINGTON, 395
U.S. 57, 60; FED. RULES CRIM. PROC. 12(B)(1), 12(B)(4), OR HE COULD, AS
HERE, GRANT THE MOTION ONLY AFTER THE JURY'S VERDICT OF GUILTY FORCED
HIM TO REACH THE CONSTITUTIONAL QUESTION.  IN EITHER CASE, NONE OF THE
INTERESTS REFLECTED IN THE JEOPARDY PROVISIONS OF THE CONSTITUTION--
PROTECTING DEFENDANTS FROM REPEATED AND HARASSING TRIALS FOR THE SAME
OFFENSE-- IS IN ANY WAY ENDANGERED.  IN FACT, SISSON'S INTERESTS IF
ANYTHING ARE LESS IN JEOPARDY IN THE SECOND CASE THAN THE FIRST WHERE
THE GOVERNMENT'S APPEAL WOULD FORCE A LONG DELAY IN BEGINNING THE TRIAL
ITSELF. 

THE CONCLUSION THAT CONGRESS INTENDED JUDGMENTS OF THIS KIND TO BE
REVIEWED SEEMS TO ME SO CLEAR, THAT I SUSPECT THE MAJORITY'S NEGLECT OF
THIS ASPECT OF THE STATUTE AMOUNTS TO A TACIT ADMISSION THAT POLICY AND
PURPOSE POINT OVERWHELMINGLY TOWARD FINDING JURISDICTION.  IF THAT IS
THE CASE, THEN TO HANG CONGRESS ON THE TECHNICAL MEANING OF THE OBSCURE
LEGAL TERMS IT HAPPENED TO USE IS NOT ONLY INAPPROPRIATE, BUT IS
STRANGELY OUT OF LINE WITH DECISIONS THAT LEAP OVER THE PLAIN MEANING
OF WORDS IN OTHER CONTEXTS TO REACH CONCLUSIONS CLAIMED TO BE
CONSISTENT WITH AN ACT'S BROADER PURPOSES.  SEE WELSH V. UNITED STATES,
398 U.S. 333 (1970); BOYS MARKETS, INC. V. RETAIL CLERKS UNION, 398
U.S. 235 (1970); TOUSSIE V. UNITED STATES, 397 U.S. 112 (1970); UNITED
STATES V. SEEGER, 380 U.S. 163 (1965).  COMPARED TO SOME OF THESE
EXAMPLES OF "STATUTORY CONSTRUCTION," IT IS CHILD'S PLAY TO CONCLUDE
THAT CONGRESS DID NOT REALLY MEAN TO LIMIT "MOTION IN ARREST" TO ITS
OLD COMMON-LAW MEANING, OR THAT AT LEAST IF IT DID, IT THOUGHT
DECISIONS SUCH AS JUDGE WYZANSKI'S WOULD HAVE BEEN APPEALABLE UNDER
SOME OTHER PROVISION, SUCH AS THE "MOTION IN BAR" AS LONG AS THERE WAS
NO DANGER OF ENCROACHING ON THE DEFENDANT'S JEOPARDY INTERESTS. 

ADMITTEDLY, THE ISSUES RAISED BY SISSON ARE DIFFICULT AND FAR
REACHING ONES, BUT THEY SHOULD BE FACED AND DECIDED.  IT IS, TO BE
SURE, MUCH MORE COMFORTABLE TO BE ABLE TO CONTROL THE DECISION WHETHER
OR NOT TO HEAR A DIFFICULT ISSUE BY THE USE OF OUR DISCRETION TO GRANT
CERTIORARI.  BUT THAT IS NOT EXCUSE FOR IGNORING CONGRESS' CLEAR INTENT
THAT THE COURT WAS TO HAVE NO CHOICE IN DECIDING WHETHER TO HEAR THE
ISSUE IN A CASE SUCH AS THIS.  THE FEAR EXPRESSED IN THE PREVAILING
OPINION THAT IF WE ACCEPT JURISDICTION WE SHALL BE "CAST ADRIFT" TO
FLOUNDER HELPLESSLY, SEE ANTE, AT 299, HAS A FLAVOR OF NOTHING SO MUCH
AS THE LONG-DISCARDED PHILOSOPHY THAT INSPIRED THE OLD FORMS OF ACTION
AND THAT LED TO THE SOLEMN ADMONITION IN 1725 THAT "(WE MUST KEEP UP
THE BOUNDARIES OF ACTIONS, OTHERWISE WE SHALL INTRODUCE THE UTMOST
CONFUSION."  REYNOLDS V. CLARKE, 93 ENG.REP.  747, 748 (K.B. 1725).  I
CANNOT AGREE.  I WOULD FIND JURISDICTION. 

/1/  FAILURE TO SET OUT THE ELEMENTS OF A VALID OFFENSE AGAINST THE
NAMED DEFENDANT IS THE ONLY WAY AN INDICTMENT COULD EVER BE
"INSUFFICIENT" BECAUSE OF THE UNCONSTITUTIONALITY (AS OPPOSED TO THE
CONSTRUCTION) OF THE UNDERLYING STATUTE. 

/2/  THE MAJORITY, AS THE CHIEF JUSTICE'S OPINION MAKES CLEAR AND AS
I DISCUSS IN MORE DETAIL LATER, INFRA, AT 331-332 AND N. 6, 332-334,
REPEATEDLY IGNORES THIS DIFFERENCE BETWEEN THE FACTS NECESSARY TO
SECURE RELIEF FOR SISSON ON HIS CONSTITUTIONAL CLAIM, AND THE FACTS
RELEVANT TO THE OFFENSE OF WILFULLY REFUSING INDUCTION. 

/3/  THE MAJORITY SEEMS TO RECOGNIZE THAT IT WOULD HAVE DIFFICULTY
JUSTIFYING A REFUSAL TO HEAR AN APPEAL CHALLENGING JUDGE WYZANSKI'S
RULING ON THE ESTABLISHMENT CLAUSE, SIMPLY BECAUSE FINDINGS HAD TO BE
MADE AS TO THE DEFENDANT'S STANDING TO RAISE THE ISSUE.  SEE ANTE, AT
284 N. 16.  BUT THERE IS NO REAL DIFFERENCE IN THIS RESPECT BETWEEN
JUDGE WYZANSKI'S FREE EXERCISE AND ESTABLISHMENT RULINGS:  BOTH-- AS
THE MAJORITY CONCEDES, IBID.-- REQUIRE FACTUAL DETERMINATIONS THAT
SISSON BELONGS TO THE CLASS THAT IS ENTITLED TO RAISE THE
CONSTITUTIONAL CLAIM THAT IS BEING ASSERTED.  IF THE RULING ON THE
FIRST IS "AN ACQUITTAL," SO IS THE RULING ON THE SECOND, SINCE THE
JUDGE MIGHT HAVE SENT THE ESTABLISHMENT ISSUE TO THE JURY TOO.  SEE
INFRA, AT 327-328. 

/4/  CONSISTENTLY APPLIED, THE MAJORITY'S THEORY WOULD MAKE NO
CRIMINAL CASE APPEALABLE TO THIS COURT.  FOR EVEN WHERE A JUDGE
DISMISSES AN INDICTMENT OR GRANTS A MOTION IN ARREST BECAUSE OF DEFECTS
"ON THE FACE OF THE RECORD," IT IS ALWAYS TRUE THAT HE MIGHT HAVE SENT
THE CASE TO THE JURY, INSTRUCTING IT TO ACQUIT IF IT FOUND THE FACTS
ALLEGED IN THE INDICTMENT, THUS INSULATING THE CASE FROM REVIEW BECAUSE
OF THE INTERVENING JURY ACQUITTAL. 

THE MAJORITY'S PROTEST THAT ITS CONCLUSION DOES NOT REST ON "WHAT
MIGHT HAVE HAPPENED," ANTE, AT 290 N. 19, SIMPLY SERVES TO HIGHLIGHT
THE IPSE DIXIT NATURE OF ITS OPINION.  FOR THE PLAIN FACT IS THAT NO
OTHER REASON IS EVER GIVEN TO EXPLAIN WHY JUDGE WYZANSKI'S ACTION
AMOUNTED TO A POST-VERDICT DIRECTED ACQUITTAL.  THE QUESTION IN THIS
CASE IS WHETHER AN AFFIRMATIVE DEFENSE, RELYING ON FACTS DEVELOPED AT
TRIAL AND SUSTAINED BY THE TRIAL JUDGE AFTER A JURY VERDICT OF GUILTY,
CAN AMOUNT TO AN APPEALABLE "MOTION IN BAR."  IT IS NO ANSWER TO THIS
QUESTION SIMPLY TO REPEAT THAT THIS IS A CASE IN WHICH JUDGE WYZANSKI
AFTER A VERDICT OF GUILTY SUSTAINED SISSON'S DEFENSE ON FACTS DEVELOPED
AT THE TRIAL-- A CLEARER CASE OF QUESTION-BEGGING CAN HARDLY BE
IMAGINED.  SUCH A SIMPLE RESTATEMENT ONLY POSES THE QUESTION THAT IS TO
BE DECIDED:  DOES SUCH ACTION AMOUNT TO A NONAPPEALABLE "ACQUITTAL"
AND, IF SO, WHY? 

ONE ANSWER TO THIS QUESTION IS SUGGESTED BY THE MAJORITY IN ITS
CITATION TO UNITED STATES V. BALL, ANTE, AT 289-290.  AN ACQUITTAL IS
THE TYPE OF JUDGMENT THAT CANNOT BE REVIEWED WITHOUT PUTTING THE
DEFENDANT TWICE IN JEOPARDY FOR THE SAME OFFENSE IN VIOLATION OF THE
CONSTITUTION.  INDEED, THE LEGISLATIVE HISTORY SHOWS THAT CONGRESS WAS
WELL AWARE OF THE BALL DECISION, AND STRONGLY SUGGESTS THAT CONGRESS
THOUGHT THAT NONAPPEALABLE "ACQUITTALS" WERE ONLY THOSE IN WHICH REVIEW
WAS INCOMPATIBLE WITH THE DOUBLE JEOPARDY PROVISIONS OF THE FIFTH
AMENDMENT.  SEE, E.G., 41 CONG.REC.  2193.  BUT DESPITE THE CITATION, I
CANNOT BELIEVE THAT THE MAJORITY REALLY MEANS TO SUGGEST THAT CONGRESS
COULD NOT CONSTITUTIONALLY AUTHORIZE AN APPEAL IN A CASE PRECISELY
PARALLEL TO THIS ONE IN ACCORDANCE WITH CURRENTLY SOUGHT LEGISLATION. 
THAT WOULD INDEED BE THROWING THE BABY OUT WITH THE BATHWATER IN ORDER
TO DECLARE THIS CASE AN "ACQUITTAL" AND THUS AVOID BEING FORCED TO
REACH THE MERITS NOW.     WHAT OTHER REASON IS THERE FOR DECIDING THAT
THIS IS A CASE OF "ACQUITTAL"?  ONE OBVIOUS SUGGESTION IS THAT THE
QUESTION OF WHETHER A JUDGE'S ACTION AMOUNTS TO AN "ACQUITTAL" ADMITS
OF NO SINGLE ANSWER, BUT DEPENDS ON THE REASONS FOR MAKING THE INQUIRY
IN THE FIRST PLACE.  HERE THE INQUIRY IS WHETHER CONGRESS MEANT TO
ALLOW AN APPEAL WHERE A STATUTE HAD BEEN HELD INVALID AS APPLIED TO A
CLASS WITHIN ITS REACH AND WHERE THE DEFENDANT'S CONSTITUTIONAL
JEOPARDY INTERESTS ARE IN NO WAY THREATENED BY THE APPEAL.  THE
MAJORITY'S ABSOLUTE REFUSAL TO DISCUSS OR RESPOND TO THE LEGISLATIVE
HISTORY ON THIS QUESTION, SET OUT BELOW, SEE INFRA, AT 335-346,
INDICATES THAT THIS APPROACH WOULD ALSO LEAD TO THE CONCLUSION THAT
JUDGE WYZANSKI GRANTED AN APPEALABLE "MOTION IN BAR" RATHER THAN AN
"ACQUITTAL." 

THE ONLY OTHER NONCIRCULAR ANSWER THAT I CAN FIND IN THE MAJORITY'S
OPINION IS THAT THIS IS AN ACQUITTAL BECAUSE THE JUDGE "MIGHT HAVE"
SENT THE CASE TO THE JURY UNDER HIS NOVEL INSTRUCTIONS, RESULTING IN A
VERDICT OF NOT GUILTY, FROM WHICH AN APPEAL WOULD INDEED JEOPARDIZE THE
DEFENDANT'S CONSTITUTIONAL INTERESTS.  THAT ANSWER, AS THE MAJORITY'S
DISCOMFITURE INDICATES, IS NOT A VERY GOOD ONE. 

/5/  ONE WILL SEARCH THE MAJORITY'S OPINION IN VAIN FOR AN
EXPLANATION AS TO WHY "MOTION IN ARREST" MUST BE PINNED TO ITS COMMON
LAW MEANING, WHILE "MOTION IN BAR"-- WHICH THE MAJORITY ALSO CONCEDES
HAD A UNIQUE MEANING AT COMMON LAW, SEE ANTE, AT 300 N. 53-- HAS NEVER
BEEN SO CONFINED.  SEE UNITED STATES V. COVINGTON, 395 U.S. 57 (1969)
(HARLAN, J.); UNITED STATES V. BLUE, 384 U.S. 251 (1966) (HARLAN, J.). 

/6/  THE MAJORITY CONCEDES THAT THE JUDGE'S INSTRUCTIONS TO THE JURY
EXCLUDED THE QUESTION OF SISSON'S SINCERITY FROM THE QUESTION OF
SISSON'S GUILT UNDER THE ACT.  SEE ANTE, AT 276.  INDEED, SISSON'S
SINCERITY COULD NOT POSSIBLY BEAR ON WHETHER SISSON HAD WILFULLY
REFUSED INDUCTION:  SINCE SISSON DID NOT SEEK A I-0 CLASSIFICATION, HE
COULD NOT EVEN ARGUE HIS "SINCERITY" TO SHOW "NO BASIS IN FACT" FOR HIS
I-A CLASSIFICATION.  MOREOVER, AS THE MAJORITY AGAIN POINTS OUT, ANTE,
AT 274 N. 2, EVEN SISSON RECOGNIZED THAT HIS "SELECTIVE" OBJECTION TO
WAR FORECLOSED HIM FROM OBTAINING C.O. STATUS UNDER THE ACT.  SISSON'S
SINCERITY WAS THUS RELEVANT ONLY TO HIS CONSTITUTIONAL DEFENSE AND WAS
AS DISTINCT FROM THE ISSUE ON THE MERITS AS WOULD HAVE BEEN A CLAIM
THAT THE PROSECUTION WAS TIME BARRED.  IN THAT SENSE, THE FACTUAL
QUESTIONS RELEVANT TO SISSON'S MOTION WERE NOT PART OF "THE GENERAL
ISSUE."  I DO NOT READ THE CHIEF JUSTICE'S OPINION, WHICH DISCUSSES
SISSON'S DEFENSE IN A WHOLLY DIFFERENT CONTEXT, AS SUGGESTING ANYTHING
DIFFERENT.  THE MAJORITY'S SUGGESTION, ANTE, AT 299, THAT A DEFENSE OF
PRIVILEGE IN A SPEECH CASE MAY INVOLVE FACTS INEXTRICABLY INTERTWINED
WITH THE GENERAL ISSUE, AND THE MAJORITY'S REFERENCE TO UNITED STATES
V. FARGAS, ANTE, AT 301, ARE PERFECT EXAMPLES OF REPEATED REFUSAL TO
COME TO GRIPS WITH THE FACTS OF THIS PARTICULAR CASE WHERE THE ISSUES
WERE NOT AND COULD NOT HAVE BEEN INTERTWINED.  WHETHER SISSON MIGHT
HAVE DEMANDED A JURY TRIAL ON THE FACTS RELEVANT TO HIS MOTION IS ALSO
A QUESTION NOT PRESENTED HERE, ANYMORE THAN IT WAS IN UNITED STATES V.
COVINGTON, 395 U.S. 57 (1969) (HARLAN, J.). 

THE LEGISLATIVE HISTORY MAKES CLEAR THAT TRYING FACTS THAT GO TO THE
PLEA, AS OPPOSED TO FACTS THAT GO TO THE "GENERAL ISSUE" IN THE SENSE
JUST DESCRIBED (WHETHER THE DEFENDANT COMMITTED THE ACT) RESULTS IN AN
APPEALABLE MOTION IN BAR AS LONG AS THE DEFENDANT HAS NOT BEEN "PUT IN
JEOPARDY."  COMPARE 41 CONG.REC.  2750 (REMARKS OF SENATOR NELSON),
WITH ID., AT 2753 (REMARKS OF SENATOR PATTERSON).  SEE TEXT, INFRA, AT
340-341.  THE REASON FOR THE DISTINCTION APPEARS TO BE THE WHOLLY
SENSIBLE ONE OF NOT PERMITTING APPEALS THAT MIGHT INVOLVE OVERTURNING
THE FINDINGS OF THE TRIER OF FACT-- WHETHER IT BE JUDGE OR JURY. 
NOBODY SUGGESTS IN THIS CASE THAT JUDGE WYZANSKI'S FINDINGS AS TO
SISSON'S SINCERITY ARE REVIEWABLE; THE ONLY QUESTION IS WHETHER THOSE
FINDINGS ARE LEGALLY RELEVANT.  WHILE I CAN SYMPATHIZE WITH THE
MAJORITY'S CONCERN TO DISTINGUISH COVINGTON, I DO NOT SEE THE RELEVANCE
OF THE PURPORTED DISTINCTION, SEE ANTE, AT 302-303, N. 56.  THERE, AS
HERE, THE TRIAL JUDGE EXPLICITLY REFUSED TO DECLARE THE RELEVANT ACT
UNCONSTITUTIONAL ON ITS FACE AND NECESSARILY RESTED HIS ACTION ON
FACTUAL FINDINGS CONCERNING THE PARTICULAR DEFENDANT, SEE 282 F.SUPP. 
886, 889-890.  IN FACT, UNDER THE MAJORITY'S REASONING, IT WOULD HAVE
BEEN EVEN EASIER TO ARGUE IN COVINGTON THAT THE FACTS NEEDED TO PROVE
THE CONSTITUTIONAL DEFENSE WERE PART OF THE "GENERAL ISSUE,"  SINCE
PROOF AT A TRIAL ON THE MERITS WOULD NECESSARILY HAVE INVOLVED
DEVELOPING SUCH THINGS AS DEFENDANT'S STATUS AS A MARIHAUANA DEALER. 
THE MAJORITY SUGGESTS THAT THERE THE GOVERNMENT CONCEDED THE RELEVANT
FACTS, WHEREAS HERE THEY WERE CONTESTED.  WHILE THAT SUGGESTION IS
ITSELF HIGHLY DUBIOUS, SEE THE CHIEF JUSTICE'S OPINION, ANTE, AT 312,
UNTIL THE MAJORITY EXPLAINS HOW THAT DISTINCTION IS AT ALL RELEVANT,
REITERATING THE DISTINCTION AGAIN ONLY BEGS THE ISSUE POSED BY THIS
CASE.  SEE N. 5, SUPRA.  FOR WHETHER THE ISSUE WAS CONCEDED OR
CONTESTED IT REMAINS TRUE UNDER THE MAJORITY'S ANALYSIS THAT COVINGTON
CANNOT BE DISTINGUISHED FROM A DIRECTED ACQUITTAL "ENTERED ON THE
GROUND THAT THE GOVERNMENT DID NOT PRESENT EVIDENCE SUFFICIENT TO PROVE
THAT (COVINGTON) WAS (NOT FACED WITH A SUBSTANTIAL POSSIBILITY OF
INCRIMINATION)."  MAJORITY OPINION, ANTE, AT 299. 

/7/  SEE MAJORITY OPINION, ANTE AT 306-307, N. 61.  OF COURSE, THE
LEGISLATION THAT THE GOVERNMENT SOUGHT SHORTLY AFTER THE ACT WAS PASSED
- REQUIRING A DEFENDANT TO RAISE HIS DEFENSES BEFORE TRIAL-- DOES NOT
NECESSARILY MEAN THAT THE THEN-ATTORNEY GENERAL INTERPRETED "JEOPARDY"
TO MEAN LITERAL JEOPARDY.  THE LEGISLATION WOULD HAVE BEEN EQUALLY
NEEDED TO PREVENT DEFENDANTS FROM WAITING UNTIL "CONSTITUTIONAL
JEOPARDY" HAD ATTACHED, BEFORE SECURING RELIEF ON A MOTION IN BAR. 
INDEED, IT IS BECAUSE IT WAS THOUGHT THAT "CONSTITUTIONAL JEOPARDY" HAD
ATTACHED IN THE BEEF TRUST CASE (UNITED STATES V. ARMOUR & CO.), 142 F.
808 (D.C.N.D. ILL. 1906) THAT NO APPEAL WAS THOUGHT TO LIE.  SEE INFRA,
AT 341-342.  SINCE THE BEEF TRUST CASE WAS THE MOTIVATING FORCE BEHIND
THE CRIMINAL APPEALS ACT, IT WOULD BE NATURAL FOR THE ATTORNEY GENERAL
TO SEEK LEGISLATION THAT WOULD FORCE A SIMILAR DEFENDANT TO RAISE AND
GET A DECISION ON HIS PLEA IN BAR BEFORE TRIAL BEGAN, THUS AVOIDING ANY
POSSIBILITY THAT THE DEFENDANT WOULD ESCAPE BY BEING PLACED IN LEGAL
JEOPARDY. 

/8/  TO ARGUE THAT THE STATUTE WAS ENACTED FOR THE BENEFIT OF THE
DEPARTMENT OF JUSTICE HARDLY JUSTIFIES RELYING ON THE GOVERNMENT'S
CONCESSION AS ADDITIONAL AUTHORITY FOR THE PROPER INTERPRETATION OF THE
ACT.  THE RELATIONSHIP OF THE DEPARTMENT OF JUSTICE TO THE CRIMINAL
APPEALS ACT IS NOT THAT OF AN AGENCY TO THE STATUTE CREATING THE AGENCY
AND CHARGING IT WITH ENFORCEMENT OF THE ACT'S PROVISIONS.  INDEED WHEN
IT COMES TO THE QUESTION OF THIS COURT'S JURISDICTION, NO INSTITUTION
HAS SPECIAL AUTHORITY FOR EXPLORING AND DETERMINING THAT QUESTION OTHER
THAN THIS COURT.  THE SOLICITOR GENERAL IN THIS CASE IS SIMPLY ONE OF
THE LITIGANTS; TO GIVE SPECIAL WEIGHT TO HIS STRATEGY IN ARGUING THIS
CASE AT THE VERY LEAST DOES A DISSERVICE TO SISSON, WHO-- SEEMINGLY
CONTRARY TO HIS OWN INTERESTS-- HAS ALSO MADE A CONCESSION:  NAMELY,
THAT THIS COURT DOES HAVE JURISDICTION UNDER BOTH THE "MOTION IN BAR"
AND "MOTION IN ARREST" PROVISIONS.  THE VIEWS OF THE JUSTICE DEPARTMENT
ON THE "MOTION IN BAR" PROVISION ARE ENTITLED TO PRECISELY THE SAME
WEIGHT AS THE MAJORITY EXTENDS TO SISSON'S VIEWS AND TO THE JUSTICE
DEPARTMENT'S VIEWS ON THE "MOTION IN ARREST" PROVISION. 

/9/  THIS INTERPRETATION IS REINFORCED AT OTHER POINTS IN THE DEBATE
IN A MANNER THAT ALSO EXPLAINS WHY THE "JEOPARDY" LANGUAGE OCCURS IN
THE MOTION-IN-BAR PROVISION, AND NOT IN THE OTHER PROVISIONS.  THE
SENATORS THOUGHT THAT INDICTMENTS WOULD NORMALLY BE DISMISSED BEFORE
TRIAL BEGAN, SO THERE WOULD BE NO "JEOPARDY" PROBLEMS IN ALLOWING
APPEALS IN SUCH CASES.  SIMILARY, A MOTION IN ARREST AFTER JUDGMENT WAS
THOUGHT TO INVOLVE NO JEOPARDY PROBLEMS, BECUASE THE DEFENDANT MADE THE
MOTION HIMSELF IN AN ATTEMPT TO OVERTURN A VERDICT OF GUILTY.  SEE 41
CONG.REC.  2753.  BUT IT WAS RECOGNIZED THAT THE MOTION IN BAR COULD BE
GRANTED AFTER TRIAL HAD STARTED, SEE 41 CONG.REC.  2749; AND IT WAS NOT
OBVIOUS WHETHER IN SUCH A CASE "JEOPARDY" WOULD HAVE ATTACHED IN THE
CONSTITUTIONAL SENSE TO PREVENT RETRIAL.  HENCE, THE "JEOPARDY"
LANGUAGE WAS ADDED "OUT OF ABUNDANCE OF CAUTION" TO MAKE CLEAR THAT
CONGRESS WAS SIMPLY BRINGING THAT PROVISION INTO LINE WITH THE OTHER
PROVISIONS:  I.E., APPEALS WERE TO LIE ONLY WHERE "CONSTITUTIONAL
JEOPARDY" HAD NOT ATTACHED; BUT JEOPARDY, NOT THE IMPANELING OF THE
JURY, WAS TO BE THE TEST OF APPEALABILITY IN THE CASE OF THE MOTION IN
BAR JUST AS IN THE CASE OF THE MOTION IN ARREST.  SEE 41 CONG.REC. 
2191 (REMARKS OF SENATOR BACON); 41 CONG.REC.  2756 (REMARKS OF SENATOR
NELSON( ("OUT OF EXTREME CAUTION AND TO PUT IT EXACTLY IN HARMONY AND
IN LINE WITH THE PROVISIONS OF THE THREE PRECEDING PARAGRAPHS, WE HAVE
EXPRESSLY PROVIDED THAT WHERE THE DEFENDANT HAS BEEN PUT IN JEOPARDY HE
CAN NOT BE REINDICTED"). 

/10/  THE MAJORITY'S APPARENT WILLINGNESS TO ACCEPT SENATOR
PATTERSON'S SUGGESTION THAT THE BEEF TRUST CASE COULD HAVE BEEN
APPEALED, ANTE, AT 304 N. 57, VIRTUALLY CONCEDES THE ISSUE.  FOR THE
WHOLE POINT IS THAT IN DISTINGUISHING BETWEEN THE PLEA AND THE ISSUE ON
THE MERITS, THE SENATOR WAS PLAINLY GIVING HIS VIEWS AS TO WHAT
CONSTITUTES "LEGAL JEOPARDY." 

/11/  IT SHOULD BE NOTED THAT EVEN SENATOR RAYNER'S AMENDMENT DID
NOT PURPORT TO NARROW THE SCOPE OF CASES IN WHICH THE GOVERNMENT COULD
APPEAL; IT ONLY SOUGHT TO REMOVE ANY "DOUBLE JEOPARDY" PROBLEM BY
DECLARING THAT THE DEFENDANT SHOULD RETAIN A FAVORABLE DECISION,
WHATEVER THE RESULT ON APPEAL. 

ON THE THIRD DAY OF DEBATE, THE AMENDMENT WAS AGREED TO, MODIFIED TO
READ: 

"PROVIDED, THAT IF UPON APPEAL OR WRIT OF ERROR IT SHALL BE FOUND
THAT THERE WAS ERROR IN THE RULINGS OF THE COURT DURING THE TRIAL, A
VERDICT IN FAVOR OF THE DEFENDANT SHALL NOT BE SET ASIDE."  41
CONG.REC.  2819. 

SENATOR RAYNER'S EARLIER OPPONENTS CONTINUED TO INSIST THAT NO
MATERIAL CHANGE HAD BEEN MADE BY THE AMENDMENT, SINCE AS THEY HAD
ARGUED, THERE WOULD BE NO APPEAL IN ANY EVENT WHERE THE DEFENDANT HAD
RECEIVED A "VERDICT" IN HIS FAVOR, SEE OPINION OF THE CHIEF JUSTICE,
ANTE, P. 308, AS OPPOSED TO SECURING A FAVORABLE "JUDGMENT" BY THE
TRIAL COURT'S ACTION IN SUSTAINING HIS PLEA OR ARRESTING JUDGMENT.  SEE
41 CONG.REC.  2820.  WITHOUT EXPLANATION, THE CONFERENCE COMMITTEE
CHANGED THE AMENDMENT TO READ: 

"PROVIDED, THAT NO WRIT OF ERROR SHALL BE TAKEN BY OR ALLOWED THE
UNITED STATES IN ANY CASE WHERE THERE HAS BEEN A VERDICT IN FAVOR OF
THE DEFENDANT." 

SUBSEQUENT AMENDMENTS TO THE ACT OMITTED THE PROVISO ALTOGETHER
(WHICH NO LONGER APPEARS IN THE CURRENT VERSION) THUS VINDICATING THE
ARGUMENTS OF SENATOR RAYNER'S OPPONENTS THAT THE AMENDMENT HAD NO
SUBSTANTIVE EFFECT. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON, FRANCIS
X. BEYTAGH, JR., BEATRICE ROSEBERG, AND ROGER A. PAULEY. 

JOHN G. S. FLYM ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 

BRIEFS OF AMICI CURIAE WERE FILED BY WILLIAM G. SMITH FOR THE LOS
ANGELES SELECTIVE SERVICE LAWS PANEL; BY NORMAN LEONARD FOR THE
LAWYERS' SELECTIVE SERVICE PANEL OF SAN FRANCISCO; BY JOSEPH B. ROBISON
FOR THE AMERICAN NEWISH CONGRESS; BY SAMUEL RABINOVE AND GEORGE
BERLSTEIN FOR THE AMERICAN JEWISH COMMITTEE; BY HERMAN SCHWARTZ, MARVIN
M. KARPATKIN, AND MELVIN L. WULF FOR THE AMERICAN HUMANIST ASSN. ET
AL.; BY LEO ROSEN, EDWARD S. GREENBAUM, AND NANCY F. WECHSLER FOR THE
AMERICAN ETHICAL UNION, AND BY FRANK P. SLANINGER, PRO SE.
..END :










U.S. V. PHILLIPSBURG NAT. BANK, 399 U.S. 350 


       UNITED STATES V. PHILLIPSBURG NATIONAL BANK & TRUST CO ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NEW JERSEY

        NO. 1093.  ARGUED APRIL 28, 1970-- DECIDED JUNE 29, 1970 


PHILLIPSBURG NATIONAL BANK (PNB) AND SECOND NATIONAL BANK (SNB) ARE
THE TWO LARGEST OF THE THREE COMMERCIAL BANKS IN PHILLIPSBURG, NEW
JERSEY, WHOSE 1960 POPULATION (INCLUDING SUBURBS) WAS 28,500.  EASTON,
PENNSYLVANIA, ACROSS THE RIVER, WHOSE 1960 POPULATION (INCLUDING
SUBURBS) WAS 60,000, HAS FOUR COMMERCIAL BANKS.  THE PROPOSED MERGER OF
PNB AND SNB, DIRECT COMPETITORS, WOULD PRODUCE A BANK WITH ASSETS OF
MORE THAN $41,100,000, PLACING IT SECOND AMONG THE SIX BANKS REMAINING
IN THE PHILLIPSBURG-EASTON AREA, AND WOULD GIVE THE TWO LARGEST BANKS
IN THE AREA 54.8% OF THE BANKING ASSETS, 68.8% OF TOTAL DEPOSITS, 63%
OF TOTAL LOANS, AND 10 OF THE 16 BANKING OFFICES.  PNB AND SNB ARE
ORIENTED TOWARD THE NEEDS OF SMALL DEPOSITORS AND SMALL BORROWERS IN
THE PHILLIPSBURG-EASTON AREA, AS OVER 90% OF THEIR DEPOSITORS AND ABOUT
80% OF THEIR BORROWERS RESIDE THERE, WITH THE VAST MAJORITY RESIDING IN
PHILLIPSBURG.  DESPITE THE VIEWS OF THE FEDERAL RESERVE BOARD, THE
FEDERAL DEPOSIT INSURANCE CORPORATION, AND THE ATTORNEY GENERAL THAT
THE PROPOSED MERGER INVOLVED COMMERCIAL BANKING IN PHILLIPSBURG-EASTON
AND THAT THE MERGER WOULD SIGNIFICANTLY HARM COMPETITION IN THAT AREA,
THE COMPTROLLER OF THE CURRENT, PURSUANT TO THE BANK MERGER ACT,
APPROVED THE MERGER, TREATING MOST OF THE LEHIGH VALLEY AS THE
GEOGRAPHIC AREA, AND EVALUATING COMPETITION FROM FINANCE COMPANIES,
SAVINGS AND LOAN INSTITUTIONS, AND THE MORE THAN 30 COMMERICAL BANKS IN
THAT AREA.  THE DISTRICT COURT REJECTED PHILLIPSBURG-EASTON AS THE
GEORGRAPHIC AREA AND SELECTED AN AREA ABOUT FOUR TIMES AS LARGE, WITH A
1960 POPULATION OF 216,000 AND 18 BANKS.  ALTHOUGH IN ITS ACTUAL
ANALYSIS OF COMPETITITVE EFFECT THAT COURT LOOKED TO COMMERCIAL BANKING
AS THE RELEVANT PRODUCT MARKET, IT EMPHASIZED COMPETITION BETWEEN PNB
SNB AND OTHER TYPES OF FINANCIAL INSTITUTIONS, AND STATED THAT PNB
SNB'S ACTIVITIES "REALLY MAKE THEM MUCH MORE . . . LIKE SAVINGS
INSTITUTIONS THAN LIKE SO MANY OF THE LARGER COMMERCIAL BANKS."  THE
DISTRICT COURT HELD THAT THE UNITED STATES HAD NOT ESTABLISHED THAT THE
MERGER WOULD HAVE ANY ANTICOMPETITIVE EFFECT, AND THAT EVEN IF THERE
WERE DE MINIMIS ANTICOMPETITIVE EFFECT IN THE GOVERNMENT'S NARROWLY
DRAWN MARKET, SUCH EFFECT WOULD BE CLEARLY OUTWEIGHED BY THE
CONVENIENCE AND NEEDS OF THE COMMUNITY.  HELD: 

1.  COMMERICAL BANKING IS THE RELEVANT PRODUCT MARKET.  PP. 359
362. 

(A) IT IS THE CLUSTER OF PRODUCTS AND SERVICES OFFERED BY FULL-SERVICE
BANKS THAT MAKES COMMERICAL BANKING A DISTINCT LINE OF COMMERCE. 
UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321.  PP. 359
360. 

(B) WHILE SUBMARKETS SUCH AS THE DISTRICT COURT DEFINED WOULD BE
RELEVANT IN ANALYZING THE EFFECT ON COMPETITION BETWEEN A COMMERCIAL
BANK AND ANOTHER TYPE OF FINANCIAL INSTITUTION, THEY CANNOT BE THE
BASIS FOR DISREGARDING THE BROADER LINE OF COMMERCE THAT HAS ECONOMIC
SIGNIFICANCE, WITH RESPECT TO SMALL AS WELL AS LARGE BANKS.  PP. 360
362. 

2.  THE PHILLIPSBURG-EASTON AREA IS THE RELEVANT GEOGRAPHIC MARKET. 
PP. 362-365. 

(A) COMMERCIAL REALITIES IN THE BANKING INDUSTRY MAKE CLEAR THAT
BANKS GENERALLY HAVE A VERY LOCALIZED BUSINESS, AND SUCH LOCALIZATION
IS PARTICULARLY PRONOUNCED WHEN SMALL CUSTOMERS ARE INVOLVED.  PP. 362
364. 

(B) THE AREA IS A GEOGRAPHIC MARKET IN WHICH THE MERGER'S EFFECT
WOULD BE "DIRECT AND IMMEDIATE," AND WHERE THE MERGING BANKS' CUSTOMERS
MUST, OR WILL, DO THEIR BANKING.  PP. 364-365. 

(C) THE AREA, WITH A 1960 POPULATION OF NEARLY 90,000, AND WITH
SEVEN COMPETING BANKS, IS A MARKET THAT IS CLEARLY AN ECONOMICALLY
SIGNIFICANT SECTION OF THE COUNTRY FOR THE PURPOSES OF SEC. 7 OF THE
CLAYTON ACT.  P. 365. 

3.  ON THE RECORD IN THIS CASE THE PROPOSED MERGER WOULD BE
"INHERENTLY LIKELY TO LESSEN COMPETITION SUBSTANTIALLY."  PP. 365-369. 

4.  THE DISTRICT COURT'S ERRORS REQUIRE RE-EXAMINATION OF ITS
CONCLUSION UNDER THE BANK MERGER ACT THAT ANY ANTICOMPETITIVE EFFECTS
OF THE MERGER WOULD BE OUTWEIGHED BY THE MERGER'S CONTRIBUTION TO THE
COMMUNITY'S CONVENIENCE AND NEEDS.  SUCH RE-EXAMINATION MUST BE IN
TERMS OF THE PHILLIPSBURG-EASTON AREA AS SERVING THE CONVENIENCE AND
NEEDS OF THE AREA, AND CONSIDER WHETHER THE MERGER WILL BENEFIT ALL
BANKING CUSTOMERS, SMALL AND LARGE, IN THE COMMUNITY.  PP. 369-372. 

306 F.SUPP.  645, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS DIRECT APPEAL UNDER THE EXPEDITING ACT, 15 U.S.C. 29, IS TAKEN
BY THE UNITED STATES FROM A JUDGMENT OF THE DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY DISMISSING, AFTER FULL HEARING, THE GOVERNMENT'S
COMPLAINT SEEKING TO ENJOIN AS A VIOLATION OF SEC. 7 OF THE CLAYTON
ACT, 15 U.S.C. 18, /1/  THE PROPOSED MERGER OF APPELLEES, PHILLIPSBURG
NATIONAL BANK AND TRUST CO. (PNB) AND THE SECOND NATIONAL BANK OF
PHILLIPSBURG (SNB), BOTH LOCATED IN PHILLIPSBURG, NEW JERSEY.  THE
COMPTROLLER OF THE CURRENCY, ALSO AN APPELLEE HERE, APPROVED THE MERGER
IN DECEMBER 1967 AND INTERVENED IN THIS ACTION TO DEFEND IT, AS HE WAS
AUTHORIZED TO DO BY THE BANK MERGER ACT OF 1966, 12 U.S.C.
1828(C)(7)(D) (1964 ED., SUPP. V).  /2/  THE BANK MERGER ACT REQUIRED
THAT THE DISTRICT COURT ENGAGE IN A TWO-STEP PROCESS, UNITED STATES V.
FIRST CITY NATIONAL BANK OF HOUSTON, 386 U.S. 361 (1967); UNITED STATES
V. THIRD NATIONAL BANK IN NASHVILLE, 390 U.S. 171 (1968), THE FIRST OF
WHICH WAS TO DECIDE WHETHER THE MERGER WOULD VIOLATE THE ANTITRUST
PROHIBITIONS OF SEC. 7 OF THE CLAYTON ACT.  IF THE COURT FOUND THAT
SEC. 7 WOULD BE VIOLATED, THEN THE BANK MERGER ACT REQUIRED THAT THE
DISTRICT COURT DECIDE WHETHER "THE ANTICOMPETITIVE EFFECTS OF THE
PROPOSED TRANSACTION ARE CLEARLY OUTWEIGHED IN THE PUBLIC INTEREST BY
THE PROBABLE EFFECT OF THE TRANSACTION IN MEETING THE CONVENIENCE AND
NEEDS OF THE COMMUNITY TO BE SERVED."  12 U.S.C. 1828(C)(5)(B).  THE
DISTRICT COURT FOUND THAT THE UNITED STATES "FAILED TO ESTABLISH BY A
PREPONDERANCE OF THE EVIDENCE THAT THE PROPOSED MERGER WOULD HAVE ANY
ANTICOMPETITIVE EFFECT AND, FURTHER, THAT EVEN IF THERE WERE DE MINIMIS
ANTICOMPETITIVE EFFECT IN THE NARROWLY DRAWN MARKET PROPOSED BY THE
GOVERNMENT, SUCH EFFECT IS CLEARLY OUTWEIGHED BY THE CONVENIENCE AND
NEEDS OF THE COMMUNITY TO BE SERVED BY THE MERGED BANK."  306 F.SUPP. 
645, 667 (1969).  WE NOTED PROBABLE JURISDICTION.  397 U.S. 933
(1970).  WE REVERSE.  WE HAVE CONCLUDED FROM OUR EXAMINATION OF THE
RECORD THAT THE DISTRICT COURT ERRED IN ITS DEFINITIONS OF THE RELEVANT
PRODUCT AND GEOGRAPHIC MARKETS AND THAT THESE ERRORS INVALIDATE THE
COURT'S DETERMINATION THAT THE MERGER WOULD HAVE NO SIGNIFICANT
ANTICOMPETITIVE EFFECTS. 

        I

        THE FACTUAL SETTING 

PHILLIPSBURG IS A SMALL INDUSTRIAL CITY ON THE DELAWARE RIVER IN THE
SOUTHWESTERN CORNER OF WARREN COUNTY, NEW JERSEY.  ITS POPULATION WAS
18,500 IN 1960, 28,500 COUNTING THE POPULATION OF ITS BORDERING
SUBURBS.  ALTHOUGH THE POPULATION OF THE SUBURBS IS AND HAS BEEN
INCREASING, PHILLIPSBURG ITSELF HAS NOT GROWN.  EASTON, PENNSYLVANIA,
LIES DIRECTLY ACROSS THE RIVER.  IT HAS A POPULATION OF 32,000 IN 1960,
60,000 COUNTING ITS BORDERING SUBURBS.  ITS POPULATION GROWTH PATTERN
HAS PARALELED THAT OF PHILLIPSBURG.  THE CITES ARE LINKED BY TWO
BRIDGES AND THE TESTIMONY WAS THAT THEY ARE "IN EFFECT . . . ONE
TOWN." 

THIS "ONE TOWN" HAS SEVEN COMMERCIAL BANKS, FOUR IN EASTON AND THREE
IN PHILLIPSBURG, PNB AND SNB ARE RESPECTIVELY THE THIRD AND FIFTH
LARGEST IN OVERALL BANKING BUSINESS.  ALL SEVEN FALL WITH THE CATEGORY
OF SMALL BANKS, THEIR ASSETS IN 1967 RANGING FROM $13,200,000 TO
$75,600,000.  /3/  PNB, WITH ASSETS THAN OF APPROXIMATELY $23,900,000,
AND SNB WITH ASSETS OF APPROXIMATELY $17,300,000, ARE THE FIRST AND
SECOND LARGEST OF THE THREE PHILLIPSBURG BANKS.  THE MERGER WOULD
PRODUCE A BANK WITH ASSETS OF OVER $41,100,000, SECOND IN SIZE OF THE
SIX REMAINING COMMERCIAL BANKS IN "ONE TOWN." 

PNB AND SNB ARE DIRECT COMPETITORS.  THEIR MAIN OFFICES ARE OPPOSITE
ONE ANOTHER ON THE SAME DOWNTOWN STREET.  SNB'S ONLY BRANCH IS ACROSS A
SUBURBAN HIGHWAY FROM ONE OF PNB'S TWO BRANCHES.  BOTH BANKS OFFER THE
WIDE RANGE OF SERVICES AND PRODUCTS AVAILABLE AT COMMERCIAL BANKS,
INCLUDING, FOR INSTANCE, DEMAND DEPOSITS, (TABLE OMITTED) SAVINGS AND
TIME DEPOSITS, CONSUMER LOANS, COMMERCIAL AND INDUSTRIAL LOANS, REAL
ESTATE MORTGAGES, TRUST SERVICES, SAFE DEPOSIT BOXES, AND ESCROW
SERVICES.  AS IS CHARACTERISTIC OF BANKS OF THEIR SIZE OPERATING IN
SMALL COMMUNITIES, PNB AND SNB HAVE LESS OF THEIR ASSETS IN COMMERCIAL
AND INDUSTRIAL LOANS THAN DO LARGER BANKS.  THEY EMPHASIZE REAL ESTATE
LOANS AND MORTGAGES, AND THEY HAVE RELATIVELY MORE TIME AND SAVINGS
DEPOSITS THAN DEMAND DEPOSITS.  SIMILARLY, THEIR TRUST ASSETS ARE QUITE
SMALL.  IN SHORT, BOTH BANKS ARE ORIENTED TOWARD THE NEEDS OF SMALL
DEPOSITORS AND SMALL BORROWERS.  THUS, IN 1967 75% OF PNB'S NUMBER OF
DEPOSITS AND 73% OF SNB'S WERE $1,000 OR LESS; 98% OF PNB'S NUMBER OF
DEPOSITS AND 97% OF SNB'S WERE $10,000 OR LESS.  SIMILARLY, 75% OF
PNB'S NUMBER OF LOAN ACCOUNTS AND 59% OF SNB'S WERE $2,500 OR LESS, AND
93% AND 87% RESPECTIVELY WERE $10,000 OR LESS. 

BOTH BANKS SERVE PREDOMINANTLY PHILLIPSBURG RESIDENTS.  IN 1967,
ALTHOUGH 91.6% OF PNB'S AND 92% OF SNB'S DEPOSITORS WERE RESIDENTS OF
"ONE TOWN," ONLY 5.3% OF PNB'S AND 9% OF SNB'S DEPOSITORS LIVED IN
EASTON.  AND, ALTHOUGH 78.6% OF PNB'S AND 87.2% OF SNB'S NUMBER OF
LOANS WERE MADE TO RESIDENTS OF "ONE TOWN," ONLY 14.8% AND 11.6%
RESPECTIVELY WENT TO PERSONS LIVING IN EASTON.  A WITNESS TESTIFIED
THAT ALL OF THE APPROXIMATELY 8,500 PHILLIPSBURG FAMILIES DEAL WITH ONE
OR ANOTHER OF THE THREE COMMERCIAL BANKS IN THAT CITY.  THE TOWN'S
BUSINESSMEN PREFER TO DO THE SAME.  THE PREFERENCE FOR LOCAL BANKS WAS
STRIKINGLY EVIDENCED BY THE FACT THAT PNB AND SNB SUBSTANTIALLY
INCREASED THEIR SAVINGS DEPOSIT ACCOUNTS DURING 1962-1967, EVEN THOUGH
THEIR PASSBOOK SAVINGS RATES WERE LOWER THAN THOSE BEING PAID BY OTHER
READILY ACCESSIBLE BANKS.  AT A TIME WHEN PHILLIPSBURG BANKS WERE
PAYING 3.5% INTEREST AND EASTON BANKS ONLY 3%, OTHER BANKS WITHIN A 13
MILE RADIUS WERE OFFERING 4%. 

PHILLIPSBURG-EASTON IS IN THE NORTHWEASTERN PART OF THE LEHIGH
VALLEY, A REGION OF APPROXIMATELY 1,000 SQUARE MILES, WITH A POPULATION
OF 492,000 IN 1960 AND 38 COMMERCIAL BANKS IN JUNE 1968.  THERE IS
CONSIDERABLE MOBILITY AMONG RESIDENTS OF THE AREA FOR SOCIAL, SHOPPING,
AND EMPLOYMENT PURPOSES.  CUSTOMER PREFERENCE AND CONSERVATIVE BANKING
PRACTICES, HOWEVER, HAVE TENDED TO LIMIT THE BULK OF EACH COMMERCIAL
BANK'S BUSINESS TO ITS IMMEDIATE GEOGRAPHIC AREA.  NEITHER PNB NOR SNB
HAS AGGRESSIVELY SOUGHT BUSINESS OUTSIDE "ONE TOWN."  SIMILARLY, MOST
OTHER BANKS IN THE LEHIGH VALLEY HAVE SHOWN LITTLE INTEREST IN SEEKING
CUSTOMERS IN PHILLIPSBURG-EASTON.  THE DISTRICT COURT FOUND THAT
"(THERE IS AN ATTITUDE OF COMPLACENCY ON THE PART OF MANY BANKS (IN THE
VALLEY).  THEY ARE CONTENT TO CONTINUE OUTMODED BANKING PRACTICE AND
RELUCTANT TO RISK CHANGES WHICH WOULD IMPROVE SERVICE AND EXTEND
SERVICES OVER A GREATER AREA TO A LARGER SEGMENT OF THE POPULATION." 
306 F.SUPP.,AT 661. 

THE MERGER WOULD REDUCE THE NUMBER OF COMMERCIAL BANKS IN "ONE TOWN"
FROM SEVEN TO SIX, AND FROM THREE TO TWO IN PHILLIPSBURG.  THE MERGED
BANK WOULD HAVE FIVE OF THE SEVEN BANKING OFFICES IN PHILLIPSBURG AND
ITS ENVIRONS AND WOULD BE THREE TIMES AS LARGE AS THE OTHER
PHILLIPSBURG BANK; IT WOULD HAVE 75.8% OF THE CITY'S BANKING ASSETS,
76.1% OF ITS DEPOSITS, AND 84.1% OF ITS LOANS.  WITHIN PHILLIPSBURG
EASTON PNB-SNB WOULD BECOME THE SECOND LARGEST COMMERCIAL BANK, HAVING
19.3% OF THE TOTAL ASSETS, 23.4% OF TOTAL DEPOSITS, 19.2% OF DEMAND
DEPOSITS, AND 27.3% OF TOTAL LOANS.  THIS INCREASED CONCENTRATION WOULD
GIVE THE TWO LARGEST BANKS 54.8% OF THE "ONE TOWN"  BANKING ASSETS,
64.8% OF ITS TOTAL DEPOSITS, 63.3% OF DEMAND DEPOSITS, 63% OF TOTAL
LOANS, AND 10 OF THE 16 BANKING OFFICES. 

WE ENTERTAIN NO DOUBT THAT THIS FACTUAL PATTERN REQUIRES A
DETERMINATION WHETHER THE MERGER PASSES MUSTER UNDER THE ANTITRUST
STANDARDS OF UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321
(1963), WHICH WERE PRESERVED IN THE BANK MERGER ACT OF 1966.  UNITED
STATES V. FIRST NATIONAL BANK OF HOUSTON, SUPRA; UNITED STATES V. THIRD
NATIONAL BANK IN NASHVILLE, SUPRA.  MERGERS OF DIRECTLY COMPETING SMALL
COMMERCIAL BANKS IN SMALL COMMUNITIES, NO LESS THAN THOSE OF LARGE
BANKS IN LARGE COMMUNITIES, ARE SUBJECT TO SCRUTINY UNDER THESE
STANDARDS.  INDEED, COMPETITIVE COMMERCIAL BANKS, WITH THEIR CLUSTER OF
PRODUCTS AND SERVICES, PLAY A PARTICULARLY SIGNIFICANT ROLE IN A SMALL
COMMUNITY UNABLE TO SUPPORT A LARGE VARIETY OF ALTERNATIVE FINANCIAL
INSTITUTIONS.  THUS, IF ANYTHING, IT IS EVEN MORE TRUE IN THE SMALL
TOWN THAN IN THE LARGE CITY THAT "IF THE BUSINESSMAN IS DENIED CREDIT
BECAUSE HIS BANKING ALTERNATIVES HAVE BEEN ELIMINATED BY MERGERS, THE
WHOLE EDIFICE OF AN ENTREPRENEURIAL SYSTEM IS THREATENED; IF THE COSTS
OF BANKING SERVICES AND CREDIT ARE ALLOWED TO BECOME EXCESSIVE BY THE
ABSENCE OF COMPETITIVE PRESSURES, VIRTUALLY ALL COSTS, IN OUR CREDIT
ECONOMY, WILL BE AFFECTED.  . . . "  PHILADELPHIA BANK, 374 U.S.,AT
372. 

WHEN PNB AND SNB SOUGHT THE COMPTROLLER'S APPROVAL OF THEIR MERGER,
AS REQUIRED BY THE BANK MERGER ACT, 12 U.S.C. 1828(C), INDEPENDENT
REPORTS ON THE COMPETITIVE FACTORS INVOLVED WERE OBTAINED, AS REQUIRED
BY SEC. 1828(C)(4), FROM THE FEDERAL RESERVE BOARD, THE FEDERAL DEPOSIT
INSURANCE CORPORATION, AND THE ATTORNEY GENERAL.  ALL THREE VIEWED THE
PROBLEM AS INVOLVING COMMERCIAL BANKING IN PHILLIPSBURG-EASTON AND
REPORTED THAT THE MERGER WOULD HAVE A SIGNIFICANTLY HARMFUL EFFECT UPON
COMPETITION IN THAT AREA.  THE COMPTROLLER NEVERTHELESS APPROVED THE
MERGER, FINDING THAT THE AGENCIES HAD DEFINED THE PRODUCT AND
GEOGRAPHIC MARKETS TOO NARROWLY.  HE TREATED NOT PHILLIPSBURG-EASTON
BUT MOST OF THE LEHIGH VALLEY AS THE RELEVANT GEOGRAPHIC AREA, AND
EVALUATED COMPETITION FROM 34 FINANCE COMPANIES AND 13 SAVINGS AND LOAN
INSTITUTIONS, AS WELL AS FROM THE MORE THAN 30 COMMERCIAL BANKS IN THE
AREA.  THE COMPTROLLER CONCLUDED THAT THE MERGER WOULD HAVE NO
SIGNIFICANT ANTICOMPETITIVE EFFECT AND, FURTHER, THAT IT WOULD ENABLE
THE RESULTANT BANK TO SERVE MORE EFFECTIVELY THE CONVENIENCE AND NEEDS
OF THE COMMUNITY. 

  II

        THE PRODUCT MARKET 

IN PHILADELPHIA BANK WE SAID THAT THE "CLUSTER OF PRODUCTS (VARIOUS
KINDS OF CREDIT) AND SERVICES (SUCH AS CHECKING ACCOUNTS AND TRUST
ADMINISTRATION) DENOTED BY THE TERM 'COMMERCIAL BANKING' . . . COMPOSES
A DISTINCT LINE OF COMMERCE."  374 U.S.,AT 356.  AS INDICATED, PNB AND
SNB OFFER THE WIDE RANGE OF PRODUCTS AND SERVICES CUSTOMARILY PROVIDED
BY COMMERCIAL BANKS.  THE DISTRICT COURT MADE NO CONTRARY FINDING, AND,
IN ITS ACTUAL EVALUATION OF THE EFFECT OF THE MERGER UPON COMPETITION,
THE COURT LOOKED ONLY TO COMMERCIAL BANKING AS THE RELEVANT PRODUCT
MARKET.  SEE 306 F.SUPP.,AT 655-661. 

EARLIER IN ITS OPINION, HOWEVER, THE DISTRICT COURT APPEARED TO
REJECT COMMERCIAL BANKING AS THE APPROPRIATE LINE OF COMMERCE.  RATHER
THAN FOCUSING ITS ATTENTION UPON THE EFFECT OF THE MERGER IN
DIMINISHING COMPETITION AMONG COMMERICAL BANKS, THE COURT EMPHASIZED
THE COMPETITION BETWEEN PNB-SNB AND OTHER TYPES OF FINANCIAL
INSTITUTIONS-- FOR EXAMPLE, SAVINGS AND LOAN ASSOCIATIONS, PENSION
FUNDS, MUTUAL FUNDS, INSURANCE, AND FINANCE COMPANIES.  THE COURT
EXPRESSED ITS VIEW THAT "(IN TERMS OF FUNCTION THE DEFENDANT BANKS ARE
MORE COMPARABLE TO SAVINGS INSTITUTIONS THAN TO LARGE COMMERCIAL
BANKS," 36 F.SUPP.,AT 648, AND CONTINUED:  "SO, WHILE THE TERM
'COMMERCIAL BANKING' MAY BE USED TO DESIGNATE THE GENERAL LINE OF
COMMERCE EMBRACING ALL BANK SERVICES, ATTENTION MUST BE GIVEN IN
ANALYSIS OF COMPETITION TO DIFFERENT GROUPINGS WITHIN THE LINE OF
COMMERCE SEPARATING THOSE PRODUCTS AND SERVICES WHERE ABSENCE OF
COMPETITION MAY BE SIGNIFICANT FROM THOSE IN WHICH COMPETITION FROM
MANY SOURCES IS SO WIDESPREAD THAT NO QUESTION OF SIGNIFICANT
DIMINUTION OF COMPETITION BY THE MERGER COULD BE RAISED."  306
F.SUPP.,AT 650-651. 

THE DISTRICT COURT ERRED.  IT IS TRUE, OF COURSE, THAT THE RELEVANT
PRODUCT MARKET IS DETERMINED BY THE NATURE OF THE COMMERCIAL ENTITIES
INVOLVED AND BY THE NATURE OF THE COMPETITION THAT THEY FACE.  SEE,
E.G., UNITED STATES V. CONTINENTAL CAN CO., 378 U.S. 441, 456-457
(1964).  SUBMARKETS SUCH AS THE DISTRICT COURT DEFINED WOULD BE CLEARLY
RELEVANT, FOR EXAMPLE, IN ANALYZING THE EFFECT ON COMPETITION OF A
MERGER BETWEEN A COMMERCIAL BANK AND ANOTHER TYPE OF FINANCIAL
INSTITUTION.  BUT SUBMARKETS ARE NOT A BASIS FOR THE DISREGARD OF A
BROADER LINE OF COMMERCE THAT HAS ECONOMIC SIGNIFICANCE.  SEE E.G.,
BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 326 (1962). 

PHILADELPHIA BANK EMPHASIZED THAT IT IS THE CLUSTER OF PRODUCTS AND
SERVICES THAT FULL-SERVICE BANKS OFFER THAT AS A MATTER OF TRADE
REALITY MAKES COMMERCIAL BANKING A DISTINCT LINE OF COMMERCE. 
COMMERCIAL BANKS ARE THE ONLY FINANCIAL INSTITUTIONS IN WHICH A WIDE
VARIETY OF FINANCIAL PRODUCTS AND SERVICES-- SOME UNIQUE TO COMMERCIAL
BANKING AND OTHERS NOT-- ARE GATHERED TOGETHER IN ONE PLACE.  THE
CLUSTERING OF FINANCIAL PRODUCTS AND SERVICES IN BANKS FACILITATES
CONVENIENT ACCESS TO THEM FOR ALL BANKING CUSTOMERS.  FOR SOME
CUSTOMERS, FULL-SERVICE BANKING MAKES POSSIBLE ACCESS TO CERTAIN
PRODUCTS OR SERVICES THAT WOULD OTHERWISE BE UNAVAILABLE TO THEM; THE
CUSTOMER WITHOUT SIGNIFICANT COLLATERAL, FOR EXAMPLE, WHO HAS
PATRONIZED A PARTICULAR BANK FOR A VARIETY OF FINANCIAL PRODUCTS AND
SERVICES IS MORE LIKELY TO BE ABLE TO OBTAIN A LOAN FROM THAT BANK THAN
FROM A SPECIALTY FINANCIAL INSTITUTION TO WHICH HE TURNS SIMPLY TO
BORROW MONEY.  IN SHORT, THE CLUSTER OF PRODUCTS AND SERVICES TERMED
COMMERCIAL BANKING HAS ECONOMIC SIGNIFICANCE WELL BEYOND THE VARIOUS
PRODUCTS AND SERVICES INVOLVED.  /4/     CUSTOMERS OF SMALL BANKS NEED
AND USE THIS CLUSTER OF SERVICES AND PRODUCTS NO LESS THAN CUSTOMERS OF
LARGE BANKS.  A CUSTOMER WHO USES ONE SERVICE USUALLY LOOKS TO HIS BANK
FOR OTHERS AS WELL, AND IS ENCOURAGED BY THE BANK TO DO SO.  THUS, AS
WAS THE CASE HERE, CUSTOMERS ARE LIKELY TO MAINTAIN CHECKING AND
SAVINGS ACCOUNTS IN THE SAME LOCAL BANK EVEN WHEN HIGHER SAVINGS
INTEREST IS AVAILABLE ELSEWHERE.  SEE ALSO PHILADELPHIA BANK, SUPRA, AT
357 N. 34.  THIS IS PERHAPS PARTICULARLY TRUE OF BANKS PATRONZIED
PRINCIPALLY BY SMALL DEPOSITORS AND BORROWERS FOR WHOM THE CONVENIENCE
OF ONE-STOP BANKING AND THE ADVANTAGES OF A GOOD RELATIONSHIP WITH THE
LOCAL BANKER-- AND THUS OF FAVORABLE CONSIDERATION FOR LOANS-- ARE
ESPECIALLY IMPORTANT.  SEE ID., AT 358 N. 35, 369. 

MOREOVER, IF COMMERCIAL BANKING WERE REJECTED AS THE LINE OF
COMMERCE FOR BANKS WITH THE SAME OR SIMILAR RATIOS OF BUSINESS AS THOSE
OF THE APPELLEE BANKS, THE EFFECT WOULD LIKELY BE TO DENY CUSTOMERS OF
SMALL BANKS-- AND THUS RESIDENTS OF MANY SMALL TOWNS-- THE ANTITRUST
PROTECTION TO WHICH THEY ARE NO LESS ENTITLED THAN CUSTOMERS OF LARGE
CITY BANKS.  INDEED, THE NEED FOR THAT PROTECTION MAY BE GREATER IN THE
SMALL TOWN SINCE, AS WE HAVE ALREADY STATED, COMMERCIAL BANKS OFFERING
FULL-SERVICE BANKING IN ONE INSTITUTION MAY BE PECULIARLY SIGNIFICANT
TO THE ECONOMY OF COMMUNITIES WHOSE POPULATION IS TOO SMALL TO SUPPORT
A LARGE ARRAY OF DIFFERENTIATED SAVINGS AND CREDIT BUSINESSES. 

        III

        THE RELEVANT GEOGRAPHIC MARKET. 

IN DETERMINING THE RELEVANT GEOGRAPHIC MARKET, WE HELD IN
PHILADELPHIA BANK, SUPRA, AT 357, THAT "(THE PROPER QUESTION TO BE
ASKED . . . IS NOT WHERE THE PARTIES TO THE MERGER DO BUSINESS OR EVEN
WHERE THEY COMPETE, BUT WHERE, WITHIN THE AREA OF COMPETITIVE OVERLAP,
THE EFFECT OF THE MERGER ON COMPETITION WILL BE DIRECT AND IMMEDIATE. 
. . . THIS DEPENDS UPON 'THE GEOGRAPHIC STRUCTURE OF SUPPLIER-CUSTOMER
RELATIONS.'"  MORE SPECIFICALLY WE STATED THAT "THE 'AREA OF EFFECTIVE
COMPETITION IN THE KNOWN LINE OF COMMERCE MUST BE CHARTED BY CAREFUL
SELECTION OF THE MARKET AREA IN WHICH THE SELLER OPERATES, AND TO WHICH
THE PURCHASER CAN PRACTICABLY TURN FOR SUPPLIES.  . . . '"  ID., AT
359. 

THE DISTRICT COURT SELECTED AS THE RELEVANT GEOGRAPHIC MARKET AN
AREA APPROXIMATELY FOUR TIMES AS LARGE OF PHILLIPSBURG-EASTON, WITH A
1960 POPULATION OF 216,000 AND 28 BANKS.  THE AREA INCLUDED THE CITY OF
BETHLEHEM, PENNSYLVANIA.  306 F.SUPP.,AT 652-653, 656-658.  THE COURT
EXPLICITLY REJECTED THE CLAIM OF THE UNITED STATES THAT PHILLIPSBURG
EASTON CONSTITUTES THE RELEVANT MARKET.  WE HOLD THAT THE DISTRICT
COURT ERRED. 

COMMERCIAL REALITIES IN THE BANKING INDUSTRY MAKE CLEAR THAT BANKS
GENERALLY HAVE A VERY LOCALIZED BUSINESS.  WE OBSERVED IN PHILADELPHIA
BANK, SUPRA, AT 358, THAT "(IN BANKING, AS IN MOST SERVICE INDUSTRIES,
CONVENIENCE OF LOCATION IS ESSENTIAL TO EFFECTIVE COMPETITION. 
INDIVIDUALS AND CORPORATIONS TYPICALLY CONFER THE BULK OF THEIR
PATRONAGE ON BANKS IN THEIR LOCAL COMMUNITY; THEY FIND IT IMPRACTICAL
TO CONDUCT THEIR BANKING BUSINESS AT A DISTANCE.  . . . THE FACTOR OF
INCONVENIENCE LOCALIZES BANKING COMPETITION AS EFFECTIVELY AS HIGH
TRANSPORTATION COSTS IN OTHER INDUSTRIES."  IN LOCATING "THE MARKET
AREA IN WHICH THE SELLER OPEATES," IT IS IMPORTANT TO CONSIDER THE
PLACES FROM WHICH IT DRAWS ITS BUSINESS, THE LOCATION OF ITS OFFICES,
AND WHERE IT SEEKS BUSINESS.  AS INDICATED, THE APPELLEE BANKS' DEPOSIT
AND LOAN STATISTICS SHOW THAT IN 1967 THEY DREW OVER 85% OF THEIR
BUSINESS FROM THE PHILLIPSBURG-EASTON AREA AND, OF THAT, ONLY ABOUT 10%
FROM EASTON.  IT HAS BEEN NOTED THAT NEARLY EVERY FAMILY IN
PHILLIPSBURG DEALS WITH ONE OF THE CITY'S THREE BANKS, AND THE TOWN'S
BUSINESSMEN PREFER TO DO THE SAME.  ALL OF PNB AND SNB'S BANKING
OFFICES ARE LOCATED WITHIN PHILLIPSBURG OR ITS IMMEDIATE SUBURBS;
ALTHOUGH THE CITY IS SUFFICIENTLY SMALL THAT THERE IS EASY ACCESS TO
ITS DOWNTOWN AREA WHERE THE BANKS HAVE THEIR MAIN OFFICES, THE BANKS
FOUND IT NECESSARY TO OPEN BRANCHES IN THE SUBURBS BECAUSE, AS A
WITNESS TESTIFIED, THAT IS "WHERE THE CUSTOMERS ARE."  SEE ALSO
PHILADELPHIA BANK, SUPRA, AT 358 N. 35.  THE "ONE TOWN" BANKS GENERALLY
COMPETE FOR DEPOSITS WITHIN A RADIUS OF ONLY A FEW MILES. 

THE LOCALIZATION OF BUSINESS TYPICAL OF THE BANKING INDUSTRY IS
PARTICULARLY PRONOUNCED WHEN SMALL CUSTOMERS ARE INVOLVED.  WE STATED
IN PHILADELPHIA BANK, SUPRA, AT 361, THAT "IN BANKING THE RELEVANT
GEOGRAPHICAL MARKET IS A FUNCTION OF EACH SEPARATE CUSTOMER'S ECONOMIC
SCALE"-- THAT "THE SMALLER THE CUSTOMER, THE SMALLER IS HIS BANKING
MARKET GEOGRAPHICALLY," ID., AT 359 N. 36.  SMALL DEPOSITORS HAVE
LITTLE REASON TO DEAL WITH A BANK OTHER THAN THE ONE MOST
GEOGRAPHICALLY CONVENIENT TO THEM.  FOR SUCH PERSONS, GEOGRAPHIC
CONVENIENCE CAN BE A MORE POWERFUL INFLUENCE THAN THE AVAILABILITY OF A
HIGHER RATE OF INTEREST AT A MORE DISTANT, THOUGH STILL NEARBY, BANK. 
THE SMALL BORROWER, IF HE IS TO HAVE HIS NEEDS MET, MUST OFTEN DEPEND
UPON HIS COMMUNITY REPUTATION AND UPON HIS RELATIONSHIP WITH THE LOCAL
BANKER.  PNB, FOR ISNTANCE, HAS MADE NUMEROUS UNSECURED LOANS ON THE
BASIS OF CHARACTER, WHICH ARE DIFFICULT FOR LOCAL BORROWERS TO GET
ELSEWHERE.  AND, AS WE SAID IN PHILADELPHIA BANK, SUPRA, AT 369,
"(SMALL BUSINESSMEN ESPECIALLY ARE, AS A PRACTICAL MATTER, CONFINED TO
THEIR LOCALITY FOR THE SATISFACTIONOF THEIR CREDIT NEEDS.  . . . IF THE
NUMBER OF BANKS IN THE LOCALITY IS REDUCED, THE VIGOR OF COMPETITION
FOR FILLING THE MARGINAL SMALL BUSINESS BORROWER'S NEEDS IS LIKELY TO
DIMINISH."  THUS, THE SMALL BORROWER FREQUENTLY CANNOT "PRACTICABLY
TURN FOR SUPPLIES" OUTSIDE HIS IMMEDIATE COMMUNITY; AND THE SMALL
DEPOSITOR-- BECAUSE OF HABIT, CUSTOM, PERSONAL RELATIONSHIPS, AND,
ABOVE ALL, CONVENIENCE-- IS USUALLY UNWILLING TO DO SO.  SEE ID., AT
357 N. 34.  THE PATRONS OF PNB AND SNB, OF COURSE, ARE SMALL CUSTOMERS:
ALMOST 75% OF THE BANKS' DEPOSITS ARE FOR AMOUNTS LESS THAN $1,000,
AND VIRTUALLY ALL OF THEIR LOANS ARE FOR LESS THAN $10,000, MOST
FALLING BELOW $2,500. 

WE OBSERVED IN PHILADELPHIA BANK, SUPRA, AT 361, THAT WE WERE HELPED
TO OUR CONCLUSION REGARDING GEOGRAPHIC MARKET "BY THE FACT THAT THE
THREE FEDERAL BANKING AGENCIES REGARD THE AREA IN WHICH BANKS HAVE
THEIR OFFICES AS AN 'AREA OF EFFECTIVE COMPETITION.'"  HERE THE FEDERAL
RESERVE BOARD, THE FEDERAL DEPOSIT INSURANCE CORPORATION, AND THE
ATTORNEY GENERAL FOUND THAT A RELAVANT BANKING MARKET EXISTS IN THE
PHILLIPSBURG-EASTON AREA AND THAT THE PROPOSED MERGER'S COMPETITIVE
EFFECT SHOULD BE JUDGED WITHIN IT.  /5/  WE AGREE.  WE FIND THAT THE
EVIDENCE SHOWS THAT PHILLIPSBURG-EASTON CONSTITUTES A GEOGRAPHIC MARKET
IN WHICH THE PROPOSED MERGER'S EFFECT WOULD BE "DIRECT AND IMMEDIATE." 
IT IS THE MARKET AREA IN WHICH PNB AND SNB OPERATE, AND, AS A PRACTICAL
MATTER, IT IS THE AREA IN WHICH MOST OF THE MERGING BANKS' CUSTOMERS
MUST, OR WILL, DO THEIR BANKING.  THUS, WE HOLD THAT THE DISTRICT COURT
MISTAKENLY REJECTED THE GOVERNMENT'S CONTENTION THAT PHILLIPSBURG
EASTON IS AN APPROPRIATE "SECTION OF THE COUNTRY" UNDER SEC. 7. 

APPELLEE BANKS ARGUE THAT PHILLIPSBURG-EASTON "CANNOT CONCEIVABLY BE
CONSIDERED A 'MARKET' FOR ANTITRUST PURPOSES," ON THE GROUND THAT IT IS
NOT AN "ECONOMICALLY SIGNIFICANT SECTION OF THE COUNTRY."  THEY CITE
OUR LANGUAGE IN BROWN SHOE, SUPRA, AT 320, THAT "(THE DELETION OF THE
WORD 'COMMUNITY' IN THE ORIGINAL (CLAYTON) ACT'S DESCRIPTION OF THE
RELEVANT GEOGRAPHIC MARKET IS ANOTHER ILLUSTRATION OF CONGRESS' DESIRE
TO INDICATE THAT ITS CONCERN WAS WITH THE ADVERSE EFFECTS OF A GIVEN
MERGER ON COMPETITION ONLY IN AN ECONOMICALLY SIGNIFICANT 'SECTION' OF
THE COUNTRY."  IN BROWN SHOE, HOWEVER, WE FOUND "RELEVANT GEOGRAPHIC
MARKETS" IN CITIES "WITH A POPULATION EXCEEDING 10,000 AND THEIR
ENVIRONS."  ID., AT 339.  PHILLIPSBURG-EASTON AND THEIR IMMEDIATE
ENVIRONS HAD A POPULATION OF ALMOST 90,000 IN 1960.  SEVEN BANKS
COMPETE FOR THEIR BUSINESS.  THIS MARKET IS CLEARLY AN ECONOMICALLY
SIGNIFICANT SECTION OF THE COUNTRY FOR THE PURPOSES OF SEC. 7. 

        IV

        THE ANTICOMPETITIVE EEFFECTS OF THE MERGER 

WE TURN NOW TO THE ULTIMATE QUESTION UNDER SEC. 7:  WHETHER THE
EFFECT OF THE PROPOSED MERGER "MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION."  WE POINTED OUT IN PHILADELPHIA BANK, SUPRA, AT 362, THAT
A PREDICTION OF ANTICOMPETITIVE EFFECTS "IS SOUND ONLY IF IT IS BASED
UPON A FIRM UNDERSTANDING OF THE STRUCTURE OF THE RELEVANT MARKET; YET
THE RELEVANT ECONOMIC DATA ARE BOTH COMPLEX AND ELUSIVE.  . . . AND
UNLESS BUSINESSMEN CAN ASSESS THE LEGAL CONSEQUENCES OF A MERGER WITH
SOME CONFIDENCE, SOUND BUSINESS PLANNING IS RETARDED.  . . . SO ALSO,
WE MUST BE ALERT TO THE DANGER OF SUBVERTING CONGRESSIONAL INTENT BY
PERMITTING A TOO-BROAD ECONOMIC INVESTIGATION.  . . . AND SO IN ANY
CASE IN WHICH IT IS POSSIBLE, WITHOUT DOING VIOLENCE TO THE
CONGRESSIONAL OBJECTIVE EMBODIED IN SEC. 7, TO SIMPLIFY THE TEST OF
ILLEGALITY, THE COURTS OUGHT TO DO SO IN THE INTEREST OF SOUND AND
PRACTICAL JUDICIAL ADMINISTRATION."  WE STATED IN BROWN SHOE, SUPRA, AT
315, THAT "(THE DOMINANT THEME PERVADING CONGRESSIONAL CONSIDERATION OF
THE 1950 AMENDMENTS (TO SEC. 7) WAS A FEAR OF WHAT WAS CONSIDERED TO BE
A RISING TIDE OF ECONOMIC CONCENTRATION IN THE AMERICAN ECONOMY."  IN
PHILADELPHIA BANK, SUPRA, AT 363, WE HELD THAT "(THIS INTENSE
CONGRESSIONAL CONCERN WITH THE TREND TOWARD CONCENTRATION WARRANTS
DISPENSING, IN CERTAIN CASES, WITH ELABORATE PROOF OF MARKET STRUCTURE,
MARKET BEHAVIOR, OR PROBABLE ANTICOMPETITIVE EFFECTS.  SPECIFICALLY, WE
THINK THAT A MERGER WHICH PRODUCES A FIRM CONTROLLING AN UNDUE
PERCENTAGE SHARE OF THE RELEVANT MARKET, AND RESULTS IN A SIGNIFICANT
INCREASE IN THE CONCENTRATION OF FIRMS IN THAT MARKET, IS SO INHERENTLY
LIKELY TO LESSEN COMPETITION SUBSTANTIALLY THAT IT MUST BE ENJOINED IN
THE ABSENCE OF EVIDENCE CLEARLY SHOWING THAT THE MERGER IS NOT LIKELY
TO HAVE ANTI-COMPETITIVE EFFECTS."  THAT PRINCIPLE IS APPLICABLE TO
THIS CASE. 

THE COMMERCIAL BANKING MARKET IN PHILLIPSBURG-EASTON IS ALREADY
CONCENTRATED.  OF ITS SEVEN BANKS, THE TWO LARGEST IN 1967-- EASTON
NATIONAL BANK AND LAFAYETTE TRUST CO.-- HAD 49% OF ITS TOTAL BANKING
ASSETS, 56% OF ITS TOTAL DEPOSITS, 49% OF ITS TOTAL LOANS AND SEVEN OF
ITS 16 BANKING OFFICES.  EASTON NATIONAL IS ITSELF THE PRODUCT OF THE
MERGER OF TWO SMALLER BANKS IN 1959.  THE UNION OF PNB-SNB WOULD, IN
TURN, SIGNIFICANTLY INCREASE COMMERCIAL BANKING CONCENTRATION IN "ONE
TOWN."  THE COMBINED BANK WOULD BECOME THE SECOND LARGEST IN THE AREA,
WITH ASSETS OF OVER $41,100,000 (19.3% OF THE AREA'S ASSETS), TOTAL
DEPOSITS OF $38,400,000 (23.4%) AND TOTAL LOANS OF $24,900,000
(27.3%).  THE ASSETS HELD BY THE TWO LARGEST BANKS WOULD THEN INCREASE
FROM 49% TO 55%, THE DEPOSITS FROM 56% TO 65%, THE LOANS FROM 49% TO
63%, AND THE BANKING OFFICES FROM SEVEN TO 10.  THE ASSETS HELD BY THE
THREE LARGEST BANKS WOULD INCREASE FROM 60% TO 68%, THE DEPOSITS FROM
70% TO 80%, THE LOANS FROM 64% TO 76%, AND THE BANKING OFFICES FROM 10
TO 12.  IN PHILLIPSBURG ALONE, OF COURSE, THE IMPACT WOULD BE MUCH
GREATER:  BANKING ALTERNATIVES WOULD BE REDUCED FROM THREE TO TWO; THE
RESULTANT BANK WOULD BE THREE TIMES LARGER THAN THE ONLY OTHER
REMAINING BANK, AND ALL BUT TWO OF THE BANKING OFFICES IN THE CITY
WOULD BE CONTROLLED BY ONE FIRM.  THUS, WE FIND ON THIS RECORD THAT THE
PROPOSED MERGER, IF CONSUMMATED, "IS . . . INHERENTLY LIKELY TO LESSEN
COMPETITION SUBSTANTIALLY."  CF. PHILADELPHIA BANK, SUPRA; NASHVILLE
BANK, SUPRA; UNITED STATES V. VON'S GROCERY CO., 384 U.S. 270 (1966);
UNITED STATES V. PABST BREWING CO., 384 U.S. 546 (1966). 

APPELLEE BANKS ARGUE THAT THEY ARE PRESENTLY SO SMALL THAT THEY LACK
THE PERSONNNEL AND RESOURCES TO SERVE THEIR COMMUNITY EFFECTIVELY AND
TO COMPETE VIGOROUSLY.  THUS, THEY CONTEND THAT THE PROPOSED MERGER
COULD HAVE PROCOMPETITIVE EFFECTS:  BY ENHANCING THEIR COMPETITIVE
POSITION, IT WOULD STIMULATE OTHER SMALL BANKS IN THE AREA TO BECOME
MORE AGGRESSIVE IN MEETING THE NEEDS OF THE ARE AND IT WOULD ENABLE PNB
SNB TO MEET AN ALLEGED COMPETITIVE CHALLENGE FROM LARGE, OUTSIDE
BANKS.  ALTHOUGH SUCH CONSIDERATIONS ARE CERTAINLY RELEVANT IN
DETERMINING THE "CONVENIENCE AND NEEDS OF THE COMMUNITY" UNDER THE BANK
MERGER ACT, THEY ARE NOT PERSUASIVE IN THE CONTEXT OF THE CLAYTON ACT. 
AS WE SAID IN PHILADELPHIA BANK, SUPRA, AT 371, FOR THE PURPOSES OF
SEC. 7, "A MERGER THE EFFECT OF WHICH 'MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION' IS NOT SAVED BECAUSE, ON SOME ULTIMATE RECKONING OF SOCIAL
OR ECONOMIC DEBITS AND CREDITS, IT MAY BE DEEMED BENEFICIAL." 

THE DISTRICT COURT STATED:  "EASE OF ACCESS TO THE MARKET IS ALSO A
FACTOR THAT DESERVES CONSIDERATION IN EVALUATING THE ANTICOMPETITIVE
EFFECTS OF A MERGER.  IT IS NOT DIFFICULT FOR A SMALL GROUP OF BUSINESS
MEN TO RAISE SUFFICIENT CAPITAL TO ESTABLISH A NEW SMALL BANK WHEN THE
BANKING NEEDS OF THE COMMUNITY ARE SUFFICIENT TO WARRANT APPROVAL OF
THE CHARTER."  306 F.SUPP.,AT 659.  APPELLEES, HOWEVER, MADE NO ATTEMPT
TO SHOW THAT A GROUP OF BUSINESSMEN WOULD MOVE TO START A NEW BANK IN
PHILLIPSBURG-EASTON, SHOULD THE PROPOSED MERGER BE APPROVED.  THE
BANKING LAWS OF NEW JERSEY AND PENNSYLVANIA SEVERLY RESTRICT THE
CAPACITY OF EXISTING BANKS TO ESTABLISH OPERATIONS IN "ONE TOWN." 
RELYING ON A RECENT NEW JERSEY BANKING STATUTE, N.J. STAT. ANN. SEC.
17:9A-19 (SUPP. 1969), APPELLEES CONTEND THAT "(THERE IS NO DOUBT THAT
THE THREE BANKS IN PHILLIPSBURG . . . ARE FAIR GAME FOR ATTRACTIVE
MERGER PROPOSALS BY THE LARGE BANKS FROM BERGEN, PASSAIC, ESSEX, HUDSON
AND MORRIS COUNTIES."  BUT, AS THE DISTRICT COURT POINTED OUT, "LARGE
CITY BANKS IN NEWARK AND IN OTHER WELL POPULATED CITIES IN THE COUNTIES
MENTIONED CAN NOW ESTABLISH BRANCH BANKS IN WARREN COUNTY (ONLY) IN ANY
MUNICIPALITY IN WHICH NO BANKING INSTITUTION HAS ITS PRINCIPAL OFFICE
OR A BRANCH OFFICE AND IN ANY MUNICIPALITY WHICH HAS A POPULATION OF
7,500 OR MORE WHERE NO BANKING INSTITUTION HAS ITS PRINCIPAL OFFICE.  .
. . "  306 F.SUPP.,AT 660.  THUS, MERGERS UNDER SEC. 17:9A-19 ARE
POSSIBLE IN PHILLIPSBURG ONLY WITH THE THREE BANKS NOW IN EXISTENCE
THERE.  ACCORDINGLY, MERGERS UNDER THIS STATUTE WOULD NOT BEAR UPON THE
ANTICOMPETITIVE EFFECTS IN QUESTION, BECAUSE THEY COULD NOT INCREASE
THE NUMBER OF BANKING ALTERNATIVES IN "ONE TOWN." 

SINCE THE DECISION BELOW, THE COURT OF APPEALS FOR THE THIRD CIRCUIT
HAS HELD THAT A NATIONAL BANK MAY AVOID THE NEW JERSEY BAR AGAINST
BRANCHING, N.J. STAT. ANN. SEC. 17:9A-19(B)(3) (SUPPL. 1969), BY MOVING
ITS HEADQUARTERS INTO A PROTECTED COMMUNITY, SUCH AS PHILLIPSBURG,
WHILE SIMULTANEOUSLY REOPENING ITS FORMER MAIN OFFICE AS A BRANCH. 
RAMAPO BANK V. CAMP, 425 F.2D 333 (1970).  WE INTIMATE NO VIEW UPON THE
CORRECTNESS OF THAT DECISION.  WE DO OBSERVE, HOWEVER, THAT THE
DISTRICT COURT DECISION IN RAMAPO BANK, AFFIRMED IN THE RECENT COURT OF
APPEALS RULING, WAS HANDED DOWN ALMOST FIVE MONTHS BEFORE THE PRESENT
DISTRICT COURT DECISION.  BOTH OPINIONS WERE WRITTEN BY THE SAME
DISTRICT JUDGE.  ACCORDINGLY, HAD AN OUTSIDE NATIONAL BANK BEEN
INTERESTED IN MOVING ITS MAIN OFFICE TO PHILLIPSBURG, NO DOUBT THIS
FACT WOULD HAVE BEEN MADE KNOWN TO THE DISTRICT COURT OR TO THIS
COURT.  NOTHING IN THE PRESENT RECORD SUGGESTS THAT ANY NATIONAL BANK
NOW LOCATED OUTSIDE PHILLIPSBURG WILL APPLY TO MOVE ITS MAIN OFFICE TO
THAT CITY; THEREFORE, ON THE RECORD BEFORE US, THAT POSSIBILITY DOES
NOT BEAR ON THE ANTICOMPETITIVE EFFECTS OF THE MERGER. 

 V

        MEETING THE CONVENIENCE AND NEEDS OF THE COMMUNITY 

THE DISTRICT COURT'S ERRORS NECESSARILY REQUIRE RE-EXAMINATION OF
ITS CONCLUSION THAT ANY ANTICOMPETITIVE EFFECTS CAUSED BY THE PROPOSED
MERGER WOULD BE OUT-WEIGHED BY THE MERGER'S CONTRIBUTION TO THE
COMMUNITY'S CONVENIENCE AND NEEDS.  THE DISTRICT COURT'S CONCLUSION,
MOREOVER, IS UNDERMINED BY THE COURT'S ERRONEOUS APPLICATION OF THE
CONVENIENCE-AND-NEEDS STANDARD.  IN THE BALANCING OF COMPETITIVE EFFECT
AGAINST BENEFIT TO COMMUNITY CONVENIENCE AND NEEDS, "(TO WEIGH
ADEQUATELY ON OF THESE FACTORS AGAINST THE OTHER REQUIRES A PROPER
CONCLUSION AS TO EACH."  NASHVILLE BANK, SUPRA, AT 183. 

THE DISTRICT COURT MISAPPLIED THE CONVENIENCE-AND-NEEDS STANDARD BY
ASSESSING THE COMPETITIVE EFFECT OF THE PROPOSED MERGER IN THE BROAD,
MULTI-COMMUNITY AREA THAT IT ADOPTED AS THE RELEVANT GEOGRAPHIC MARKET,
WHILE ASSESSING THE MERGER'S CONTRIBUTION TO COMMUNITY CONVENIENCE AND
NEEDS IN PHILLIPSBURG ALONE.  APPELLEES ARGUE THAT "(NOWHERE DOES THE
DISTRICT COURT EQUATE 'COMMUNITY' WITH PHILLIPSBURG."  WE DISAGREE.  IN
DETERMINING CONVENIENCE AND NEEDS, THE COURT STATED THAT "(THERE ARE
TWO BANKING SERVICES WHICH MUST BE IMPROVED IN THE AREA TO SATISFY
PRESENT AND RAPIDLY INCREASING NEED.  LENDING LIMITS OF THE SMALL BANKS
ARE NOT SUFFICIENT TO SATISFY LOAN REQUIREMENTS FOR SUBSTANTIAL
INDUSTRIAL AND COMMERCIAL ENTERPRISE.  . . . THERE IS A DEFINITE LACK
OF COMPETENT TRUST SERVICE AND . . . SERVICING OF SUBSTANTIAL TRUST
ACCOUNTS MUST BE OBTAINED OUTSIDE THE COMMUNITY.  . . . IF THE MERGER
IS APPROVED, THE MERGED BANK CAN ESTABLISH (LOAN AND TRUST) DEPARTMENTS
AND STAFF THEM WITH PERSONNEL CAPABLE OF THE KIND OF LOAN AND TRUST
SERVICE THAT PATRONS MUST, IN LARGE PART, NOW SEEK OUTSIDE THE
COMMUNITY."  306 F.SUPP.,AT 661.  THE COURT THEN CITED EXAMPLES OF
PERSONS IN PHILLIPSBURG WHO FOUND THE EXISTING LOAN AND TRUST SERVICES
IN THAT CITY INADEQUATE.  ID., AT 662-666.  SINCE SEVERAL EASTON BANKS
ALREADY PROVIDE APPRECIABLE TRUST SERVICES AND HAVE LEGAL LENDING
LIMITS GREATER THAN THOSE OF PNB-SNB COMBINED, IT IS OBVIOUS THAT THE
COURT WAS PRIMARILY CONCERNED WITH LOAN AND TRUST POSSIBILITIES IN
PHILLIPSBURG.  WE HOLD, HOWEVER, THAT EVALUATION MUST BE IN TERMS OF
THE CONVENIENCE AND NEEDS OF PHILLIPSBURG-EASTON AS A WHOLE. 

TRANSACTION WHOSE EFFECT IN ANY SECTION OF THE COUNTRY MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION . . . (SHALL NOT BE APPROVED BY THE
RESPONSIBLE BANKING AGENCY) UNLESS IT FINDS THAT THE ANTICOMPETITIVE
EFFECTS OF THE PROPOSED TRANSACTION ARE CLEARLY OUTWEIGHED IN THE
PUBLIC INTEREST BY THE PROBABLE EFFECT OF THE TRANSACTION IN MEETING
THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE SERVED." 
REPRESENTATIVES REUSS EXPLAINED DURING DEBATE ON THE BANK MERGER ACT
THAT "(WHAT IS MEANT BY (SEC. (C)(5)(B)) AND WHAT COUNTS IS THE EFFECT
OF THE TRANSACTION IN MEETING THE NEEDS AND CONVENIENCES OF THE
COMMUNITY WHICH THAT PARTICULAR SOUGHT-TO-BE MERGED BANK SERVES."  112
CONG.REC.  2457.  HE INDICATED THAT "IN A COMMUNITY HAVING SAY, 10
BANKS OF RELATIVELY EQUAL SIZE, AND WHERE ONE OF THE BANKS WAS IN
DIFFICULTY-- SAY WITH REGARD TO A PROBLEM OF MANAGEMENT SUCCESSION--
THE 'CONVENIENCE AND NEEDS OF THE COMMUNITY' WOULD BE BEST SERVED IF
THAT BANK WERE PERMITTED TO MERGE WITH ONE OF THE OTHER 9 BANKS DESPITE
SOME RESULTING ANTICOMPETITIVE EFFECTS."  ID., AT 2445. 

THESE COMMENTS SUPPORT OUR CONCLUSION THAT THE GEOGRAPHIC MARKET--
THE "COMMUNITY WHICH THAT PARTICULAR SOUGHT-TO-BE MERGED BANK SERVES"--
IS THE AREA IN WHICH CONVENIENCE AND NEEDS MUST BE EVALUATED. 
COMMERCIAL REALITIES, MOREOVER, MAKE CLEAR THAT THE "COMMUNITY TO BE
SERVED" IS VIRTUALLY ALWAYS AS LARGE, OR LARGER, THAN THE GEOGRAPHIC
MARKET.  ALTHOUGH THE AREA IN WHICH MERGING BANKS COMPETE WHILE THEY
ARE STILL SEPARATE ENTITIES IS OFTEN SMALLER THAN THE AREA IN WHICH THE
RESULTANT BANK WILL COMPETE, IT IS RARE THAT THE COMMUNITY SERVED BY A
MERGER BANK IS SMALLER THAN THAT SERVED BY ITS CONSTITUENT FIRMS PRIOR
TO THEIR MERGER.  FURTHER, EVALUATION OF CONVENIENCE AND NEEDS IN AN
AREA SMALLER THAN THE GEOGRAPHIC MARKET COULD RESULT IN THE APPROVAL OF
A MERGER THAT, THOUGH IT HAS ANTICOMPETITIVE EFFECTS THROUGHOUT THE
MARKET, HAS COUNTERVAILING BENEFICIAL IMPACT IN ONLY PART OF THE
MARKET.  UNDER THE APPROACH TAKEN BY THE DISTRICT COURT,
ANTICOMPETITIVE EFFECTS IN SOME PARTS OF A RELEVANT GEOGRAPHIC MARKET
COULD BE JUSTIFIED BY COMMUNITY BENEFITS IN OTHER PARTS OF IT.  SUCH A
RESULT WOULD SUBVERT THE CLEAR CONGRESSIONAL PURPOSE IN THE BANK MERGER
ACT THAT CONVENIENCE AND NEEDS NOT BE ASSESSED IN ONLY A PART OF THE
COMMUNITY TO BE SERVED, AND SUCH A RESULT WOULD UNFAIRLY DENY THE
BENEFITS OF THE MERGER TO SOME OF THOSE WHO SUSTAIN ITS DIRECT AND
IMMEDIATE ANTICOMPETITIVE EFFECTS.  /6/  CF. PHILADELPHIA BANK, SUPRA,
AT 370.  ACCORDINGLY, WE HOLD THAT THE DISTRICT COURT ERRED IN FAILING
TO ASSESS THE PROPOSED MERGER'S EFFECT IN TERMS OF THE CONVENIENCE AND
NEEDS OF THE RELEVANT GEOGRAPHIC MARKET. 

WE HELD IN NASHVILLE BANK, SUPRA, AT 190, THAT "BEFORE A MERGER
INJURIOUS TO THE PUBLIC INTEREST IS APPROVED, A SHOWING (MUST) BE MADE
THAT THE GAIN EXPECTED FROM THE MERGER CANNOT REASONABLY BE EXPECTED
THROUGH OTHER MEANS."  THUS, BEFORE APPROVING SUCH A MERGER, A DISTRICT
COURT MUST "RELIABLY ESTABLISH THE UNAVAILABILITY OF ALTERNATIVE
SOLUTIONS TO THE WOES" FACED BY THE MERGING BANKS.  IBID.  ACCORDINGLY,
ON REMAND, THE DISTRICT COURT SHOULD CONSIDER IN CONCRETE DETAIL THE
ADEQUACY OF ATTEMPTS BY PNB AND SNB TO OVERCOME THEIR LOAN, TRUST, AND
PERSONNEL DIFFICULTIES BY METHODS SHORT OF THEIR OWN MERGER.  BEYOND
CAREFUL CONSIDERATION OF ALTERNATIVE METHODS OF SERVING THE CONVENIENCE
AND NEEDS OF PHILLIPSBURG-EASTON, THE COURT SHOULD DEAL SPECIFICALLY
WITH WHETHER THE PROPOSED MERGER IS LIKELY TO BENEFIT ALL SEEKERS OF
BANKING SERVICES IN THE COMMUNITY, RATHER THAN SIMPLY THOSE INTERESTED
IN LARGE LOAN AND TRUST SERVICES. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  NO
COSTS SHALL BE ASSESSED AGAINST APPELLEE BANKS. 

              IT IS SO ORDERED. 

MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THIS CASE, AND
MR. JUSTICE BLACKMUN TOOK NO PART IN ITS CONSIDERATION OR DECISION. 

/1/  SECTION 7, AS AMENDED BY THE 1950 CELLER-KEFAUVER ANTIMERGER
ACT, PROVIDES IN PERTINENT PART:  "NO CORPORATION ENGAGED IN COMMERCE
SHALL ACQUIRE, DIRECTLY OR INDIRECTLY, THE WHOLE OR ANY PART OF THE
STOCK OR OTHER SHARE CAPITAL AND NO CORPORATION SUBJECT TO THE
JURISDICTION OF THE FEDERAL TRADE COMMISSION SHALL ACQUIRE THE WHOLE OR
ANY PART OF THE ASSETS OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE,
WHERE IN ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT
OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO
TEND TO CREATE A MONOPOLY." 

/2/  THE MERGER WAS AUTOMATICALLY STAYED BY THE FILING OF THIS
ACTION.  12 U.S.C. 1828(C)(7)(A) (1964 ED., SUPP. V).  THE DISTRICT
COURT CONTINUED THE STATUTORY STAY PENDING DISPOSITION OF THE APPEAL. 

/3/  SEE TABLE AT 355.  THE TABLE, IN MILLIONS OF DOLLARS, AS OF
DECEMBER 30, 1967, SHOWS THE RELATIONSHIP OF THE SEVEN BANKS TO ONE
ANOTHER IN TERMS OF ASSETS, TOTAL DEPOSITS, DEMAND DEPOSITS, AND
LOANS.  THE NAZARETH NATIONAL BANK HAS ONE BRANCH IN EASTON.  WHILE THE
DEPOSIT FIGURES ARE SEGREGATED FOR THIS BRANCH, THE ASSET AND LOAN
FIGURES ARE NOT.  THUS, THE TOTAL ASSET AND LOAN FIGURES FOR THE
NAZARETH NATIONAL BANK ARE USED IN THIS TABLE, RATHER THAN THOSE
ATTRIBUTABLE TO ITS EASTON BRANCH.  THE TABLE, ACCORDINGLY, UNDERSTATES
THE PERCENTAGES ATTRIBUTABLE TO THE OTHER BANKS, INCLUDING THE
APPELLEES. 

/4/  SEE ALSO OUR STATEMENT IN PHILADEPHIA BANK, SUPRA, AT 356-357,
THAT "(SOME COMMERCIAL BANKING PRODUCTS OR SERVICES ARE SO DISTINCTIVE
THAT THEY ARE ENTIRELY FREE OF EFFECTIVE COMPETITION FROM PRODUCTS OR
SERVICES OF OTHER FINANCIAL INSTITUTIONS; THE CHECKING ACCOUNT IS IN
THIS CATEGORY.  OTHERS ENJOY SUCH COST ADVANTAGES AS TO BE INSULATED
WITHIN A BROAD RANGE FROM SUBSTITUTES FURNISHED BY OTHER INSTITUTIONS. 
FOR EXAMPLE, COMMERCIAL BANKS COMPETE WITH SMALL-LOAN COMPANIES IN THE
PERSONAL-LOAN MARKET; BUT THE SMALL-LOAN COMPANIES' RATES ARE
INVARIABLY MUCH HIGHER THAN THE BANKS'.  . . . FINALLY, THERE ARE
BANKING FACILITIES WHICH, ALTHOUGH IN TERMS OF COST AND PRICE THEY ARE
FREELY COMPETITIVE WITH THE FACILITIES PROVIDED BY OTHER FINANCIAL
INSTITUTIONS, NEVERTHELESS ENJOY A SETTLED CONSUMER PREFERENCE,
INSULATING THEM, TO A MARKED DEGREE, FROM COMPETITION; THIS SEEMS TO BE
THE CASE WITH SAVINGS DEPOSITS." 

/5/  THE GOVERNMENT INITIALLY SOUGHT TO SHOW THAT PHILLIPSBURG ALONE
CONSTITUTED THE RELEVANT GEOGRAPHIC MARKET.  AFTER THE DISTRICT COURT
REJECTED THAT PROPOSAL, THE GOVERNMENT SUPPORTED PHILLIPSBURG-EASTON
AND EVIRONS AS THE APPROPRIATE MARKET AND CONTINUES TO DO SO IN THIS
COURT. 

/6/  WE DO NOT SUGGEST THAT IT WOULD BE INAPPROPRIATE TO FOCUS ON
THE CONVENIENCE AND NEEDS OF A SEGMENT OF THE GEOGRAPHIC MARKET SO LONG
AS BENEFITS TO THAT SEGMENT WOULD ACCRUE TO THE ENTIRE MARKET.  WE
INTIMATE NO VIEW OF THE WEIGHT TO BE ATTACHED TO BENEFITS THAT MAY
ACCRUE TO AREAS BEYOND THE RELEVANT MARKET. 

MR. JUSTICE HARLAN, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

MY FIRST REACTION TO THIS CASE, FROM THE VANTAGE POINT OF WHAT IS
DEPICTED IN THE RECORD AND BRIEFS, WAS WONDERMENT THAT THE DEPARTMENT
OF JUSTICE HAD BOTHERED TO SUE.  HOW COULD THAT AGENCY OF GOVERNMENT, I
ASKED MYSELF, BE EFFICIENTLY ALLOCATING ITS OWN SCARCE RESOURCES IF IT
CHOSE TO ATTACK A MERGER BETWEEN TWO BANKS AS SMALL AS THOSE INVOLVED
IN THIS CASE?  WHEN COMPARED WITH ANY OF THE 10 PRIOR CASES IN WHICH A
BANK MERGER WAS CONTESTED, THE TOTAL ASSETS OF THE BANK THAT WOULD
RESULT FROM THIS MERGER ARE MINUSCULE.  /1/  MOREOVER, MEASURED BY
TRUST ASSETS, THE PHILLIPSBURG NATIONAL BANK IN 1968 RANKED 1346TH AND
THE SECOND NATIONAL BANK OF PHILLIPSBURG 2429TH OUT OF THE
APPROXIMATELY 3100 BANKS WITH TRUST POWERS IN THE UNITED STATES.  IF
THE TWO BANKS WERE MERGED, THE RESULTING BANK WOULD HAVE RANKED 1323D--
ONLY 23 PLACES AHEAD OF THE PHILLIPSBURG NATIONAL ALONE.  /2/  WITH
TIGERS STILL AT LARGE IN OUR COMPETITIVE JUNGLE, WHY SHOULD THE
DEPARTMENT BE TAKING AIM AT SUCH SMALL GAME? 

THE COURT'S DISPOSITION OF THIS CASE PROVIDES JUSTIFICATION ENOUGH
FROM THE DEPARTMENT'S POINT OF VIEW.  AFTER TODAY'S OPINION THE
LEGALITY OF EVERY MERGER OF TWO DIRECTLY COMPETING BANKS-- NO MATTER
HOW SMALL-- IS PLACED IN DOUBT IF A COURT, THROUGH WHAT HAS BECOME AN
EXERCISE IN "ANTITRUST NUMEROLOGY," UNITED STATES V. FIRST NATIONAL
BANK & TRUST CO. OF LEXINGTON, 376 U.S. 665, 673 (1964) (HARLAN, J.,
DISSENTING), CONCLUDES THAT THE MERGER "PRODUCES A FIRM CONTROLLING AN
UNDUE PERCENTAGE SHARE OF THE RELEVANT MARKET," ANTE, AT 366. 

        I 

UNDER THE BANK MERGER ACT IT IS NOW SETTLED THAT A COURT MUST ENGAGE
IN A TWO-STEP PROCESS IN ORDER TO DECIDE WHETHER A PROPOSED MERGER
PASSES MUSTER.  FIRST, THE EFFECT OF THE MERGER UPON COMPETITION MUST
BE EVALUATED, APPLYING THE STANDARDS UNDER SEC. 7 OF THE CLAYTON ACT,
UNITED STATES V. THIRD NATIONAL BANK IN NASHVILLE, 390 U.S. 171, 181
183 (1968).  IF THERE WOULD BE A VIOLATION, THE COURT MUST THEN PROCEED
TO DECIDE WHETHER "THE ANTICOMPETITIVE EFFECTS OF THE PROPOSED
TRANSACTION ARE CLEARLY OUTWEIGHED IN THE PUBLIC INTEREST BY THE
PROBABLE EFFECT OF THE TRANSACTION IN MEETING THE CONVENIENCE AND NEEDS
OF THE COMMUNITY TO BE SERVED."  /3/ 

FOR THE FIRST STAGE OF THE ANALYSIS, THE COURT APPEARS TO DECIDE
WHETHER THE EFFECT OF THIS PROPOSED MERGER "MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION" BY THE FOLLOWING PROCESS:  FIRST, THE COURT DEFINES
THE RELEVANT PRODUCT MARKET AS COMMERCIAL BANKING.  SECOND, IT DEFINES
THE GEOGRAPHIC MARKET AS PHILLIPSBURG-EASTON.  /4/  THE COURT NEXT
CALCULATES THE PERCENTAGE SHARE OF THIS MARKET THAT WOULD BE HELD BY
THE PROPOSED MERGER BANK, /5/  AND THE RESULTING CHANGES IN
"CONCENTRATION," AS MEASURED BY THE PERCENT OF MARKET HELD BY THE TWO
LARGEST /6/  AND THREE LARGEST BANKS.  /7/  IT APPEARS THAT FROM THE
MAGNITUDE OF THESE FIGURES ALONE, THE COURT CONCLUDES THAT THE PROPOSED
MERGER WOULD SIGNIFICANTLY INCREASE COMMERCIAL BANKING CONCENTRATION"
IN AN "ALREADY CONCENTRATED" MARKET.  /8/  ON THE BASIS OF THE
MAGNITUDE OF THESE FIGURES ALONE THE COURT CONCLUDES THAT THIS MERGER
WOULD VIOLATE SEC. 7 OF THE CLAYTON ACT.     I NVE VOICED MY
DISAGREEMENT BEFORE, PARTICULARLY IN THE BANKING FIELD, WITH THE
"'NUMBERS GAME' TEST FOR DETERMINING CLAYTON ACT VIOLATIONS," UNITED
STATES V. THIRD NATIONAL BANK, SUPRA, AT 193 (HARLAN, J., CONCURRING IN
PART AND DISSENTING IN PART); SEE UNITED STATES V. FIRST NATIONAL BANK,
SUPRA, AT 673 (HARLAN, J., DISSENTING).  ALTHOUGH I CONSIDER MYSELF
BOUND BY THE COURT'S DECISION IN PHILADELPHIA BANK, SEE UNITED STATES
V. THIRD NATIONAL BANK, SUPRA, AT 193, I CANNOT CONCUR IN THE
SIMPLISTIC WAY IN WHICH THE COURT APPLIES THE NUMBERS TEST HERE. 

PHILADELPHIA BANK DID NOT HOLD THAT ALL BANK MERGERS RESULTING IN AN
"UNDUE PERCENTAGE SHARE OF THE RELEVANT MARKET" AND "IN A SIGNIFICANT
INCREASE IN THE CONCENTRATION OF FIRMS IN THAT MARKET," 374 U.S.,AT
363, NECESSARILY VIOLATED SEC. 7 OF THE CLAYTON ACT.  INSTEAD THAT CASE
ESTABLISHED A RULE BY WHICH THE PERCENTAGE FIGURES ALONE DO NO MORE
THAN "RAISE AN INFERENCE," ID., AT 365, THAT THE MERGER WILL
SIGNIFICANTLY LESSEN COMPETITION.  PHILADELPHIA BANK LEFT ROOM,
HOWEVER, FOR THE MERGING COMPANIES TO SHOW THAT THE "MERGER IS NOT
LIKELY TO HAVE SUCH ANTICOMPETITIVE EFFECTS," ID., AT 363.  IN SHORT,
UNDER THE PHILADELPHIA BANK TEST, THE PERCENTAGE FIGURES CREATE A
REBUTTABLE PRESUMPTION OF ILLEGALITY. 

IN THIS CASE THERE ARE TWO ASPECTS OF MARKET STRUCTURE, EACH LARGELY
IGNORED BY THE COURT, THAT I THINK MIGHT WELL REBUT THE PRESUMPTION
RAISED BY THE PERCENTAGE FIGURES THAT THE MERGER WILL HAVE A
SIGNIFICANT EFFECT ON COMPETITION.  CONSEQUENTLY, I THINK THE APPELLEES
SHOULD ON REMAND BE GIVEN AN OPPORTUNITY TO SHOW BY "CLEAR EVIDENCE"
THAT DESPITE THE PERCENTAGE FIGURES, THE ANTICOMPETITIVE EFFECTS OF
THIS MERGER ARE NOT SIGNIFICANT. 

        II 

THE FIRST OF THESE ASPECTS OF THE MARKET STRUCTURE CONCERNS
"ENTRY."  THE PERCENTAGE FIGURES ALONE TELL NOTHING ABOUT THE
CONDITIONS OF ENTRY IN A PARTICULAR MARKET.  NEW ENTRY CAN, OF COURSE,
QUICKLY ALLEVIATE "UNDUE" CONCENTRATION.  AND THE POSSIBILITY OF ENTRY
CAN ACT AS A SUBSTANTIAL CHECK ON THE MARKET POWER OF EXISTING
COMPETITORS. 

ENTRY INTO BANKING IS NOT SIMPLY GOVERNED BY FREE MARKET CONDITIONS,
OF COURSE, FOR IT IS ALSO LIMITED BY REGULATORY LAWS.  WHEN THE
COMPLAINT IN THIS CASE WAS FILED, ENTRY INTO THE PHILLIPSBURG-EASTON
MARKET WAS VERY MUCH RESTRICTED BY BOTH THE PENNSYVANIA AND NEW JERSEY
BANKING STATUTES.  /9/  HOWEVER, A RECENT CHANGE IN THE NEW JERSEY
STATUTE /10/  TOGETHER WITH A NEW OPINION OF THE COURT OF APPEALS FOR
THE THIRD CIRCUIT RENDERED SINCE THE TRIAL IN THIS CASE, /11/  APPEARS
TO INCREASE CONSIDERABLY THE POSSIBILITY OF NEW ENTRY INTO
PHILLIPSBURG.  FOR THE FIRST TIME IT MAY BE POSSIBLE FOR ANY NATIONAL
BANK ALREADY OPERATING ANYWHERE IN THE NORTHERN REGION OF NEW JERSEY TO
OPEN, UNDER CERTAIN CIRCUMSTANCES, A NEW OFFICE IN PHILLIPSBURG.  /12/ 

IF ONE ASSUMES THE REGULATORY BARRIERS TO ENTRY HAVE BEEN
PERMANENTLY LOWERED, IT WOULD SEEM THAT THE COMPETITIVE SIGNIFICANCE OF
THIS MERGER MAY WELL BE CONSIDERABLY OVERSTATED BY THE PERCENTAGE
FIGURES ALONE.  IN A MARKET DOMINATED BY BANKS OF ENORMOUS ABSOLUTE
SIZE, WITH ASSETS OF HUNDREDS OF MILLIONS AND EVEN BILLIONS OF DOLLARS,
IT IS OF COURSE UNLIKELY THAT A NEW ENTRANT WILL QUICKLY BECOME A
SUBSTANTIAL COMPETITIVE FORCE.  THE SAME IS NOT TRUE, HOWEVER, OF A
MARKET IN WHICH THE LARGEST COMPETITOR IS, IN ABSOLUTE TERMS, RATHER
SMALL. 

IN SHORT, I THINK THE SIGNIFICANCE OF THE PERCENTAGE FIGURES RECITED
IN THE COURT'S OPINION CAN ONLY BE FULLY EVALUATED AFTER CONSIDERATION
OF THE PRESENT ENTRY CONDITIONS IN THE PHILLIPSBURG-EASTON AREA. 
BECAUSE OF THE NEW DEVELOPMENTS IN THE NEW JERSEY REGULATION OF BANKING
THAT HAVE OCCURRED SINCE THE TRIAL OF THIS CASE, I THINK IT INEXCUSABLE
OF THE MAJORITY NOT TO GIVE THE APPELLEE BANKS AN OPPORTUNITY ON REMAND
TO DEMONSTRATE WHETHER THERE IS NOW A SUBSTANTIAL POSSIBILITY OF NEW
ENTRY, AND IF SO, WHAT EFFECT THAT POSSIBILITY WOULD HAVE ON THE MARKET
POWER OF THE COMBINED BANK.  /13/

        III 

QUITE APART FROM ENTRY, THERE IS ANOTHER ASPECT OF THE MARKET
STRUCTURE RELEVANT HERE THAT AFFECTS THE SIGNIFICANCE OF THE PERCENTAGE
FIGURES CITED BY THE COURT.  RELYING ON PHILADELPHIA BANK, THE COURT
CONCLUDES THAT THE "CLUSTER OF PRODUCTS . . . AND SERVICES . . .
DENOTED BY THE TERM 'COMMERCIAL BANKING' . . . COMPOSES A DISTINCT LINE
OF COMMERCE" FOR PURPOSES OF THIS CASE.  THE COURT ESCHEWS ALL ANALYSIS
OF THE COMPOSITION OF THE PRODUCTS AND SERVICES OFFERED BY APPELLEE
BANKS, HOWEVER.  THE COURT THUS MANAGES TO IGNORE COMPLETELY THE EXTENT
TO WHICH COMPETITION FROM SAVINGS AND LOAN COMPANIES, MUTUAL SAVINGS
BANKS, AND OTHER FINANCIAL INSTITUTIONS THAT ARE NOT COMMERCIAL BANKS
AFFECTS THE MARKET POWER OF THE APPELLEE BANKS. 

A CLOSER ANALYSIS OF WHAT THE MERGING BANKS HERE DO, PLAINLY SHOWS
THAT THEY HAVE MORE IN COMMON WITH SAVINGS AND LOAN INSTITUTIONS AND
MUTUAL SAVINGS BANKS THAN WITH THE BIG CITY COMMERCIAL BANKS CONSIDERED
IN PHILADELPHIA BANK.  IN PARTICULAR, A MUCH HIGHER PERCENTAGE OF THE
TOTAL DEPOSITS OF THE BANKS HERE COMES FROM SAVINGS ACCOUNTS AS OPPOSED
TO DEMAND DEPOSITS THAN IS TRUE OF BIG CITY COMMERCIAL BANKS.  /14/
MOREOVER, A MUCH LARGER PROPORTION OF THE TOTAL LOANS OF THESE SMALL
BANKS IS IN THE FORM OF REAL ESTATE OR PERSONAL LOANS AS OPPOSED TO
COMMERCIAL LOANS.  /15/  SAVINGS AND LOAN COMPANIES, SAVINGS BANKS,
CREDIT UNIONS, ETC., ARE OF MUCH GREATER COMPETITIVE SIGNIFICANCE IN
THIS MARKET THAN IN THE MARKET ANALYZED IN PHILADELPHIA BANK.  FOR IN
THIS MARKET, THESE NONBANK FINANCIAL INSTITUTIONS OFFER CLOSE
SUBSTITUTES FOR THE PRODUCTS AND SERVICES THAT ARE MOST IMPORTANT TO
THE APPELLEE BANKS. 

IN CHOOSING ITS PRODUCT MARKET, THE COURT LARGELY IGNORES THESE
SUBTLETIES AND INSTEAD EMPHASIZES THE CLUSTER OF SERVICES AND PRODUCTS
WHICH IN THE COURT'S WORDS "MAKES COMMERCIAL BANKING A DISTINCT LINE OF
COMMERCE."  BECAUSE THE COURT DOES NOT EXPLAIN WHY THAT COMBINATION HAS
ANY SUBSTANTIAL SYNERGISTIC EFFECT, CF. ANDERSON'S-BLACK ROCK, INC. V.
PAVEMENT SALVAGE CO., INC., 396 U.S. 57, 61 (1969), THE COURT'S CHOICE
OF A PRODUCT MARKET HERE CAN BE SERIOUSLY QUESTIONED.  CERTAINLY A MORE
DISCRIMINATING CONCLUSION CONCERNING THE ANTITRUST IMPLICATION OF THIS
MERGER COULD BE MADE IF SEPARATE CONCENTRATION PERCENTAGES WERE
CALCULATED FOR EACH OF THE IMPORTANT PRODUCTS AND SERVICES PROVIDED BY
APPELLEE BANKS, AND THEN AN OVERALL APPRAISAL MADE OF THE EFFECT OF
THIS MERGER ON COMPETITION. 

IN ANY EVENT, EVEN ASSUMING THAT FOR PURPOSES OF A PRELIMINARY
ANALYSIS ONE WERE TO USE COMMERCIAL BANKING AS THE LINE OF COMMERCE FOR
THE ANTITRUST ANALYSIS-- IF ONLY FOR THE SAKE OF CONVENIENCE-- THAT
DOES NOT EXCUSE THE MAJORITY'S FAILURE TO CONSIDER THE COMPETITIVE
REALITIES OF THE CASE IN APPRAISING THE SIGNIFICANCE OF THE
CONCENTRATION PERCENTAGES THUS CALCULATED, SEE UNITED STATES V. FIRST
NATIONAL BANK OF MARYLAND, 310 F.SUPP.  157, 175 (D.C. MD. 1970).  THE
BARE PERCENTAGES THEMSELVES ARE NOT AFFECTED BY THE PRESENCE OR ABSENCE
OF SIGNIFICANT COMPETITION FOR IMPORTANT BANK PRODUCTS OR SERVICES FROM
FIRMS OUTSIDE COMMERCIAL BANKING.  BY TREATING THESE PERCENTAGES AS NO
DIFFERENT FROM THOSE FOUND IN PHILADELPHIA BANK, THE COURT BLITHELY
ASSUMES THAT PERCENTAGES OF THE SAME ORDER OF MAGNITUDE REPRESENT THE
SAME DEGREE OF MARKET POWER, IRRESPECTIVE OF THE AMOUNT OF COMPETITION
FROM NEIGHBORING MARKETS. 

SEEN ANOTHER WAY, THE COURT'S MODE OF ANALYSIS MAKES TOO MUCH TURN
ON THE ALL-OR-NOTHING DETERMINATION THAT THE RELEVANT PRODUCT MARKET
EITHER INCLUDES OR DOES NOT INCLUDE PRODUCTS AND SERVICES OF SAVINGS
AND LOAN COMPANIES, AND OTHER COMPETITION.  A FAR BETTER APPROACH WOULD
BE TO RECOGNIZE THE FACT THAT A PRODUCT OR GEOGRAPHIC MARKET IS AT BEST
FOR APPROXIMATION-- NECESSARY TO CALCULATE SOME PERCENTAGE FIGURES.  IN
EVALUATING SUCH FIGURES, HOWEVER, THE COURT SHOULD NOT DECIDE THE CASE
SIMPLY BY THE MAGNITUDE OF THE NUMBERS ALONE-- IT SHOULD GIVE THE
APPELLEES ON REMAND AN OPPORTUNITY TO DEMONSTRATE THAT THE NUMBERS HERE
SIGNIFICANTLY "OVERSTATE" THE COMPETITIVE EFFECTS OF THIS MERGER
BECAUSE OF THE APPROXIMATE NATURE OF THE ASSUMPTIONS UNDERLYING THE
COURT'S DEFINITION OF THE RELEVANT MARKET. 

IN SHORT, I THINK THAT THIS CASE SHOULD BE REMANDED TO THE DISTRICT
COURT SO THAT IT MIGHT RE-EVALUATE WHETHER, IN LIGHT OF THE ENTRY
CONDITIONS AND EXISTING COMPETITION FROM SAVINGS AND LOAN AND SIMILAR
FINANCIAL INSTITUTIONS, THE MERGER CAN FAIRLY BE SAID TO THREATEN A
SUBSTANTIAL LOSS OF COMPETITION IN THE PHILLIPSBURG-EASTON AREA.  CF.
WHITE MOTOR CO. V. UNITED STATES.  372 U.S. 253 (1963).  IF THE
DISTRICT COURT CONCLUDES THAT THE MERGER WOULD SO THREATEN COMPETITION,
IT SHOULD THEN, IN THE MANNER THE COURT'S OPINION SUGGESTS, PROCEED TO
DECIDE WHETHER THERE ARE COUNTERVAILING PUBLIC INTEREST ADVANTAGES. 

/1/  THE APPENDIX (AT 831) CONTAINS THE FOLLOWING TABLE (SOMEWHAT
MODIFIED HEREIN) SHOWING, INTER ALIA, THE TOTAL ASSETS OF THE RESULTING
BANKS IN THE CONTESTED BANK MERGER CASES INITIATED UP TO THE TIME OF
SUIT IN THIS CASE. 

        CONTESTED SECTION 7 BANK MERGER CASES:  ASSETS    CASE

           ASSETS (IN MILLIONS) 

     1.  MANUFACTURERS HANOVER . . . $6,001.8 

     2.  CONTINENTAL ILLINOIS . . . 3,248.3 

   3.  CROCKER-CITIZENS . . . 3,217.4 

     4.  CALIFORNIA BANK-- FIRST WESTERN . . . 2,421.2 

     5.  PHILADELPHIA NATIONAL BANK . . . 1,805.3 

     6.  PROVIDENT-- CENTRAL PENN.  . . . 1,069.1 

     7.  FIRST CITY-- SOUTHERN NATIONAL (HOUSTON . . . 1,042.9 

     8.  MERCANTILE TRUST-- SECURITY TRUST . . . 1,040.4 

     9.  THIRD NATIONAL-- NASHVILLE BANK & TRUST . . . 428.2 

     10.  FIRST NATIONAL-- COOKE TRUST COMPANY . . . 389.7 

     11.  PHILLIPSBURG NATIONAL-- SECOND NATIONAL . . . 41.1 

/2/  APP. 840. 

/3/  BANK MERGER ACT OF 1966, AMENDING SEC. 18(C)(5)(B) OF THE
FEDERAL DEPOSIT INSURANCE ACT, 12 U.S.C. 1828(C)(5)(B) (1964 ED., SUPP.
V).  I DO NOT QUARREL WITH THE COURT'S CONCLUSION THAT THE DISTRICT
COURT IMPROPERLY ANALYZED "CONVENIENCE AND NEEDS," IN THE SECOND STAGE,
BECAUSE OF ITS ERRONEOUS CHOICE OF PHILLIPSBURG ALONE AS THE RELEVANT
"COMMUNITY." 

/4/  I ACCEPT THE COURT'S CONCLUSION THAT THE APPROPRIATE GEOGRAPHIC
MARKET HERE IS THE PHILLIPSBURG-EASTON AREA, AND AGREE THAT THE
GEOGRAPHIC MARKET DESIGNATED BY THE DISTRICT COURT WAS TOO BROAD, GIVEN
THE SMALL SIZE OF THE BANKS INVOLVED IN THIS CASE. 

/5/

        PERCENTAGE OF PHILLIPSBURG-EASTON MARKET HELD BY MERGED

           BANKS 

     BANK ASSETS . . . 19.3 

     TOTAL DEPOSITS . . . 23.4 

     TOTAL LOANS . . . 27.3 

/6/

        PERCENTAGE OF PHILLIPSBURG-EASTON MARKET HELD BY TWO
LARGEST

           BANKS    BEFORE  AFTER  CHANGE 

     BANK ASSETS . . . 49 55 6 

     TOTAL DEPOSITS . . . 56 65 9 

     TOTAL LOANS . . . 49 63 14 

/7/

        PERCENTAGE OF PHILLIPSBURG-EASTON MARKET HELD BY THREE

           LARGEST BANKS    BEFORE  AFTER CHANGE 

     BANK ASSETS . . . 60 68 8 

     TOTAL DEPOSITS . . . 70 80 10 

     TOTAL LOANS . . . 64 76 12 

/8/  IT IS SIGNIFICANT TO NOTE THAT THE PERCENTAGE FIGURES IN THIS
CASE ARE THEMSELVES SMALLER, ON THE WHOLE, THAN THOSE FOUND EITHER IN
THE PHILADELPHIA BANK CASE SUPRA, OR THIRD NATIONAL BANK CASE, SUPRA.

        PERCENTAGE OF TOTAL ASSETS IN RELEVANT MARKET HELD BY
MERGED

           BANKS 

THIS CASE . . . 19.3 

     THIRD NAT. BANK . . . 38.4 

     PHILADELPHIA BANK . . . (AT LEAST 30%) 36 /8A/

  PERCENTAGE OF TOTAL ASSETS IN RELEVANT MARKET HELD BY TWO

           LARGEST BANKS

              BEFORE  AFTER 

     THIS CASE . . . 49 55 

     THIRD NAT. BANK . . . 72 77 

     PHILADELPHIA BANK . . . 44 59

PERCENTAGE OF TOTAL ASSETS IN RELEVANT MARKET HELD BY THREE

          LARGEST BANKS  /8B/

              BEFORE  AFTER 

     THIS CASE . . . 60 68 

     THIRD NAT. BANK . . . 93 98 

/8A/  FOR PURPOSES OF ITS HOLDING IN PHILADELPHIA BANK, THE COURT
"SHADED)" THE 36% FIGURE DOWNWARD TO "AT LEAST 30%" TO COMPENSATE FOR
THE APPROXIMATE NATURE OF CERTAIN ASSUMPTIONS IMPLICIT IN THE MANNER IN
WHICH IT CALCULATED THE MARKET SHARES, SEE PHILADELPHIA BANK, SUPRA, AT
364 AND N. 40 

/8B/  BECAUSE PHILADELPHIA BANK INVOLVED A MERGER BETWEEN THE SECOND
AND THIRD LARGEST BANKS, THE PERCENTAGE HELD BY THE THREE LARGEST WAS
NOT USED IN THAT CASE. 

/9/  NEW JERSEY, AT THE TIME SUIT WAS FILED HERE, (1) PROHIBITED THE
MERGER OF BANKS LOCATED IN DIFFERENT COUNTIES; (2) RESTRICTED BRANCH
BANKING TO THE COUNTY IN WHICH THE PARENT BANK WAS LOCATED; (3)
PRECLUDED BRANCHING ALTOGETHER INTO CITIES IN WHICH ANOTHER BANK HAD A
"PRINCIPAL OFFICE" (I.E., HOME OFFICE), OR INTO COMMUNITIES IN WHICH A
BANK OR BRANCH WAS ALREADY LOCATED.  SEE N.J. STAT. ANN. SEC. 17:9A
19(B) (1963). 

/10/  ON JULY 17, 1969, A NEW BANKING STATUTE CAME INTO EFFECT THAT
REGULATES, NOT ON THE BASIS OF COUNTIES, BUT INSTEAD ON THE BASIS OF
THREE BANKING DISTRICTS, OF WHICH PHILLIPSBURG IS IN THE FIRST. 
DISTRICT-WIDE DE NOVO BRANCHING AND MERGERS ARE AUTHORIZED, SUBJECT TO
A "PRINCIPAL OFFICE" PROTECTION PROVISION, N.J. STAT. ANN. SEC. 17:9A
19(B)(3) (SUPP. 1970).     /11/  RAMAPO BANK V. CAMP, 425 F.2D 333
(C.A. 3D CIR. 1970).  I INTIMATE, OF COURSE, NO VIEWS CONCERNING THE
CORRECTNESS OF THIS DECISION. 

/12/  BECAUSE PHILLIPSBURG IS THE LOCATION OF A HOME OFFICE, THE
HOME-OFFICE PROTECTION PROVISO MIGHT BE THOUGHT TO PRECLUDE DE NOVO
BRANCHING THERE.  HOWEVER, THE RAMAPO BANK DECISION OF THE THIRD
CIRCUIT, SUPRA, HELD THAT A NATIONAL BANK, BY MOVING ITS MAIN OFFICE
INTO A PROTECTED COMMUNITY WHILE SIMULTANEOUSLY REOPENING ITS FORMER
MAIN OFFICE AS A BRANCH, COULD AVOID THE OPERATION OF THE "HOME-OFFICE
PROTECTION" PROVISO OF THE NEW JERSEY LAW.  UNDER RAMAPO, THEREFORE, IT
IS POSSIBLE FOR ANY NATIONAL BANK WILLING TO SHIFT ITS "HOME OFFICE" TO
PHILLIPSBURG TO ENTER THAT MARKET. 

/13/  IT IS SIMPLY UNTENABLE FOR THE MAJORITY TO IGNORE THE BEARING
OF THIS ISSUE ON THE "ANTICOMPETITIVE EFFECT" OF THIS MERGER ON THE
GROUND THAT "(NOTHING IN THE PRESENT RECORD SUGGESTS THAT ANY NATIONAL
BANK NOW LOCATED OUTSIDE PHILLIPSBURG WILL APPLY TO MOVE ITS MAIN
OFFICE TO THAT CITY," ANTE, AT 369.  AT THE TIME THE PRESENT RECORD WAS
DEVELOPED, EXISTING LAW RENDERED THAT INQUIRY IRRELEVANT.  MOREOVER,
THE DISTRICT COURT FOUND, QUITE APART FROM ENTRY, THAT THE PROPOSED
MERGER HAD NO SIGNIFICANT ANTICOMPETITIVE EFFECT.  IT IS THEREFORE
QUITE INAPPROPRIATE FOR THE MAJORITY TO SUGGEST THAT THE FAILURE OF THE
DISTRICT COURT TO REOPEN THE RECORD IN LIGHT OF ITS RAMAPO DECISION IS
OF ANY SIGNIFICANCE. 

/14/

        TIME AND SAVINGS DEPOSITS AND DEMAND DEPOSITS AS PERCENTAGE
           OF TOTAL DEPOSITS    TIME & SAVINGS  DEMAND 

     PNB . . . 71 29 

     SNB . . . 72 28 

     LARGE BANK AVERAGE /14A/  . . . 45 55 

/14A/  THE AVERAGE FOR 341 BANKS WITH ASSETS OVER $100 MILLION WHICH
SUBMIT WEEKLY REPORTS TO THE FEDERAL RESERVE BOARD. 
CALCULATED FROM APP. 788. 

/15/
        REAL ESTATE LOANS AND PERSONAL LOANS AS PERCENTAGE OF TOTAL
        LOANS    REAL ESTATE  PERSONAL  COMBINED 

     PNB . . . 54 28 82 

     SNB . . . 72 14 86 

     LARGE BANK AVERAGE /15A/  . . . 14 8 22 

/15A/  SEE N. 14, SUPRA. 
CALCULATED FROM APP. 788. 

DEPUTY SOLICITOR GENERAL FRIEDMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL MCLAREN, LAWRENCE G. WALLACE, AND HOWARD E.
SHAPIRO. 

ROBERT B. MEYNER ARGUED THE CAUSE FOR APPELLEES PHILLIPSBURG
NATIONAL BANK & TRUST CO. ET AL.  WITH HIM ON THE BRIEF WERE THOMAS D.
HOGAN AND MICHAEL S. WATERS.  PHILIP L. ROACHE, JR., ARGUED THE CAUSE
FOR APPELLEE CAMP, COMPTROLLER OF THE CURRENCY.  WITH HIM ON THE BRIEF
WERE ROBERT BLOOM AND CHARLES H. MCENERNEY, JR.
..END :

















GUNN V. UNIVERSITY COMMITTEE, 399 U.S. 383 


       GUNN, SHERIFF, ET AL. V. UNIVERSITY COMMITTEE TO END THE WAR

           IN VIET NAM ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

      DISTRICT OF TEXAS

        NO. 7.  ARGUED JANUARY 13-14, 1969-- REARGUED APRIL 29-30,

           1970-- DECIDED JUNE 29, 1970 


SEVERAL APPELLEES, WHO WERE PROTESTING AMERICAN PARTICIPATION IN THE
VIETNAM CONFLICT AT THE EDGE OF A CROWD ATTENDING A SPEECH BY PRESIDENT
JOHNSON IN TEXAS, WERE ARRESTED AND CHARGED WITH DISTURBING THE PEACE,
IN VIOLATION OF TEX. PEN.  CODE, ART. 474.  NINE DAYS LATER THEY
BROUGHT THIS ACTION AGAINST APPELLANT STATE OFFICIALS ASKING THAT A
THREE-JUDGE DISTRICT COURT BE CONVENED, THAT ENFORCEMENT OF ART. 474 BE
ENJOINED, AND THAT IT BE DECLARED UNCONSTITUTIONAL.  A FEW DAYS LATER
THE STATE CHARGES WERE DISMISSED, ON THE GROUND THAT APPELLEES' CONDUCT
HAD OCCURRED ON A MILITARY ENCLAVE OVER WHICH TEXAS HAD NO
JURISDICTION.  THE THREE-JUDGE COURT THEREAFTER ISSUED A PER CURIAM
OPINION, CONCLUDING THAT ART. 474 "IS . . . UNCONSTITUTIONALLY BROAD. 
THE PLAINTIFFS HEREIN ARE ENTITLED TO THEIR DECLARATORY JUDGMENT TO
THAT EFFECT, AND TO INJUNCTIVE RELIEF AGAINST THE ENFORCEMENT OF
ARTICLE 474 AS NOW WORDED . . . . HOWEVER, . . . THE MANDATE SHALL BE
STAYED AND THIS COURT SHALL RETAIN JURISDICTION OF THE CAUSE PENDING
THE NEXT SESSION . . . OF THE TEXAS LEGISLATURE . . . . "  APPELLANTS
APPEALED DIRECTLY TO THIS COURT UNDER 28 U.S.C. 1253.  HELD:  SINCE THE
DISTRICT COURT HAS ISSUED NEITHER AN INJUNCTION NOR AN ORDER GRANTING
OR DENYING ONE, THIS COURT HAS NO JURISDICTION UNDER SEC. 1253, WHICH
PROVIDES FOR REVIEW OF ORDERS GRANTING OR DENYING INTERLOCUTORY OR
PERMANENT INJUNCTIONS.  PP. 386-391. 

289 F.SUPP.  469, DISMISSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 12, 1967, PRESIDENT LYNDON JOHNSON MADE A SPEECH IN BELL
COUNTY, TEXAS, TO A CROWD OF SOME 25,000 PEOPLE, INCLUDING MANY
SERVICEMEN FROM NEARBY FORT HOOD.  THE INDIVIDUAL APPELLEES /1/
ARRIVED AT THE EDGE OF THE CROWD WITH PLACARDS SIGNIFYING THEIR STRONG
OPPOSITION TO OUR COUNTRY'S MILITARY PRESENCE IN VIETNAM.  ALMOST
IMMEDIATELY AFTER THEIR ARRIVAL, THEY WERE SET UPON BY MEMBERS OF THE
CROWD, SUBJECTED TO SOME PHYSICAL ABUSE, PROMPTLY REMOVED FROM THE
SCENE BY MILITARY POLICE, TURNED OVER TO BELL COUNTY OFFICERS, AND
TAKEN TO JAIL.  SOON AFTERWARDS, THEY WERE BROUGHT BEFORE A JUSTICE OF
THE PEACE ON A COMPLAINT SIGNED BY A DEPUTY SHERIFF, CHARGING THEM WITH
"DIST THE PEACE."  THEY PLEADED NOT GUILTY, WERE RETURNED BRIEFLY TO
JAIL, AND WERE SOON RELEASED ON $500 BOND. 

NINE DAYS LATER THEY BROUGHT THIS ACTION IN A FEDERAL DISTRICT COURT
AGAINST BELL COUNTY OFFICIALS, ASKING THAT A THREE-JUDGE COURT BE
CONVENED, THAT ENFORCEMENT OF THE STATE DISTURBING-THE-PEACE STATUTE BE
TEMPORARILY AND PERMANENTLY ENJOINED, AND THAT THE STATUTE BE DECLARED
UNCONSTITUTIONAL ON ITS FACE, "AND/OR AS APPLIED TO THE CONDUCT OF THE
PLAINTIFFS HEREIN."  THE STATUTE IN QUESTION IS ARTICLE 474 OF THE
TEXAS PENAL CODE, WHICH THEN PROVIDED AS FOLLOWS: 

     "WHOEVER SHALL GO INTO OR NEAR ANY PUBLIC PLACE, OR INTO OR

  NEAR ANY PRIVATE HOUSE, AND SHALL USE LOUD AND VOCIFEROUS, OR

  OBSCENE, VULGAR OR INDECENT LANGUAGE OR SWEAR OR CURSE, OR YELL

  OR SHRIEK OR EXPOSE HIS OR HER PERSON TO ANOTHER PERSON OF THE

  AGE OF SIXTEEN (16) YEARS OR OVER, OR RUDELY DISPLAY ANY PISTOL

  OR DEADLY WEAPON, IN A MANNER CALCULATED TO DISTURB THE PERSON OR

  PERSONS PRESENT AT SUCH PLACE OR HOUSE, SHALL BE PUNISHED BY A

 FINE NOT EXCEEDING TWO HUNDRED DOLLARS ($200)." 

A FEW DAYS AFTER INSTITUTION OF THE FEDERAL PROCEEDINGS THE STATE
CHARGES WERE DISMISSED UPON MOTION OF THE COUNTY ATTORNEY, BECAUSE THE
APPELLEES' CONDUCT HAD TAKEN PLACE WITHIN A MILITARY ENCLAVE OVER WHICH
TEXAS DID NOT HAVE JURISDICTION.  AFTER DISMISSAL OF THE STATE CHARGES
THE DEFENDANTS IN THE FEDERAL COURT FILED A MOTION TO DISMISS THE
COMPLAINT ON THE GROUND THAT "NO USEFUL PURPOSE COULD NOW BE SERVED BY
THE GRANTING OF AN INJUNCTION TO PREVENT THE PROSECTUION OF THESE SUITS
BECAUSE SAME NO LONGER EXISTS."  THE APPELLEES FILED A MEMORANDUM IN
OPPOSITION TO THIS MOTION, CONCEDING THAT THERE WAS NO REMAINING
CONTROVERSY WITH RESPECT TO THE PROSECUTION OF THE STATE CHARGES, BUT
ASKING THE FEDERAL COURT NONETHELESS TO RETAIN JURISDICTION AND TO
GRANT INJUNCTIVE AND DECLARATORY RELIEF AGAINST THE ENFORCEMENT OF
ARTICLE 474 UPON THE GROUND OF ITS UNCONSTITUTINALITY.  A STIPULATION
OF FACTS WAS SUBMITTED BY THE PARTIES, ALONG WITH MEMORANDA,
AFFIDAVITS, AND OTHER DOCUMENTARY MATERIAL. 

WITH THE CASE IN THAT POSTURE, THE THREE-JUDGE DISTRICT COURT A FEW
WEEKS LATER RENDERED A PER CURIAM OPINION, EXPRESSING THE VIEW THAT
ARTICLE 474 IS CONSTITUTIONALLY INVALID, 289 F.SUPP.  469.  THE OPINION
ENDED WITH THE FOLLOWING FINAL PARAGRAPH: 

"WE REACH THE CONCLUSION THAT ARTICLE 474 IS IMPERMISSIBLY AND
UNCONSTITUTIONALLY

  BROAD.  THE PLAINTIFFS HEREIN ARE ENTITLED TO THEIR DECLARATORY
JUDGMENT TO THAT EFFECT, AND

TO INJUNCTIVE RELIEF AGAINST THE ENFORCEMENT OF ARTICLE 474 AS NOW
WORDED, INSOFAR AS IT MAY

  AFFECT RIGHTS GUARANTEED UNDER THE FIRST AMENDMENT.  HOWEVER, IT
IS THE ORDER OF THIS COURT

  THAT THE MANDATE SHALL BE STAYED AND THIS COURT SHALL RETAIN
JURISDICTION OF THE CAUSE PENDING

  THE NEXT SESSION, SPECIAL OR GENERAL, OF THE TEXAS LEGISLATURE,
AT WHICH TIME THE STATE OF

  TEXAS MAY, IF IT SO DESIRES, ENACT SUCH DISTURBING-THE-PEASE
STATUTE AS WILL MEET

  CONSTITUTIONAL REQUIREMENTS."  289 F.SUPP.,AT 475. 

THE DEFENDANTS TOOK A DIRECT APPEAL TO THIS COURT, RELYING UPON 28
U.S.C. 1253, AND WE NOTED PROBABLE JURISDICTION, 393 U.S. 819.  THE
CASE WAS ORGINALLY ARGUED LAST TERM, BUT WAS, ON JUNE 16, 1969, SET FOR
REARGUMENT AT THE 1969 TERM.  395 U.S. 956.  REARGUMENT WAS HELD ON
APRIL 29 AND 30, 1970.  WE NOW DISMISS THE APPEAL FOR WANT OF
JURISDICTION. 

THE JURISDICTIONAL STATUTE UPON WHICH THE PARTIES RELY, 28 U.S.C.
1253, PROVIDES AS FOLLOWS: 

     "EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO

 THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE

  AND HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY

  CIVIL ACTION, SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS

  TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

THE STATUTE IS THUS EXPLICIT IN AUTHORIZING A DIRECT APPEAL TO THIS
COURT ONLY FROM AN ORDER OF A THREE-JUDGE DISTRICT COURT "GRANTING OR
DENYING . . . AN INTERLOCUTORY OR PERMANENT INJUNCTION."  EARLIER THIS
TERM WE HAD OCCASION TO REVIEW THE HISTORY AND CONSTRUE THE MEANING OF
THIS STATUTE IN GOLDSTEIN V. COX, 396 U.S. 471.  IN THAT CASE A DIVIDED
COURT HELD THAT THE ONLY INTERLOCUTORY ORDERS THAT THIS COURT HAS POWER
TO REVIEW UNDER SEC. 1253 ARE THOSE GRANTING OR DENYING PRELIMINARY
INJUNCTIONS.  THE PRESENT CASE, HOWEVER, INVOLVES NO SUCH REFINED A
QUESTION AS DID GOLDSTEIN.  FOR HERE THERE WAS NO ORDER OF ANY KIND
EITHER GRANTING OR DENYING AN INJUNCTION-- INTERLOCUTORY OR PERMANENT. 
CF. ROCKEFELLER V. CATHOLIC MEDICAL CENTER, 397 U.S. 820; MITCHELL V.
DONOVAN, 398 U.S. 427.  ALL THAT THE DISTRICT COURT DID WAS TO WRITE A
RATHER DISCURSIVE PER CURIAM OPINION, ENDING WITH THE PARAGRAPH QUOTED
ABOVE.  /2/  ALTHOUGH THE TEXAS LEGISLATURE AT ITS NEXT SESSION TOOK NO
ACTION WITH RESPECT TO ARTICLE 474, THE DISTRICT COURT ENTERED NO
FURTHER ORDER OF ANY KIND.  AND EVEN THOUGH THE QUESTION OF THIS
COURT'S JURISDICTION UNDER SEC. 1253 WAS FULLY EXPOSED AT THE ORIGINAL
ORAL ARGUMENT OF THIS CASE, THE DISTRICT COURT STILL ENTERED NO ORDER
AND NO INJUNCTION DURING THE 15-MONTH PERIOD THAT ELAPSED BEFORE THE
CASE WAS ARGUED AGAIN. 

WHAT WE DEAL WITH HERE IS NO MERE TECHNICALITY.  IN GOLDSTEIN V.
COX, SUPRA, WE POINTED OUT THAT:  "THIS COURT HAS MORE THAN ONCE STATED
THAT ITS JURISDICTION UNDER THE THREE-JUDGE COURT ACT IS TO BE NARROWLY
CONSTRUED SINCE 'ANY LOOSE CONSTRUCTION OF THE REQUIREMENTS OF (THE
ACT) WOULD DEFEAT THE PURPOSES OF CONGRESS . . . TO KEEP WITHIN NARROW
CONFINES OUR APPELLATE DOCKET.'  PHILLIPS V. UNITED STATES (312 U.S.
246), AT 250.  SEE STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368, 375
(1949); MOORE V. FIDELITY & DEPOSIT CO., 272 U.S. 317, 321 (1926)." 
396 U.S.,AT 478.  BUT THERE ARE UNDERLYING POLICY CONSIDERATIONS IN
THIS CASE MORE FUNDAMENTAL THAN MERE ECONOMY OF JUDICIAL RESOURCES. 

ONE OF THE BASIC REASONS FOR THE LIMIT IN 28 U.S.C. 1253 UPON OUR
POWER OF REVIEW IS THAT UNTIL A DISTRICT COURT ISSUES AN INJUNCTION, OR
ENTERS AN ORDER DENYING ONE, IT IS SIMPLY NOT POSSIBLE TO KNOW WITH ANY
CERTAINTY WHAT THE COURT HAS DECIDED-- A STATE OF AFFAIRS THAT IS
CONSPICUOUSLY EVIDENT HERE.  THE COMPLAINT IN THIS CASE ASKED FOR AN
INJUNCTION "(RESTRAINING THE APPROPRIATE DEFENDANTS, THEIR AGENTS,
SERVANTS, EMPLOYEES AND ATTORNEYS AND ALL OTHERS ACTING IN CONCERT WITH
THEM FROM THE ENFORCEMENT, OPERATION OR EXECUTION OF ARTICLE 474."  IS
THAT THE "INJUNCTIVE RELIEF" TO WHICH THE DISTRICT COURT THOUGHT THE
APPELLEES WERE "ENTITLED"?  IF NOT, WHAT LESS WAS TO BE ENJOINED, OR
WHAT MORE?  AND AGAINST WHOM WAS THE INJUNCTION TO RUN?  DID THE
DISTRICT COURT INTEND TO ENJOIN ENFORCEMENT OF ALL THE PROVISIONS OF
THE STATUTE?  OR DID THE COURT INTEND TO HOLD THE STATUTE
UNCONSTITUTIONAL ONLY AS APPLIED TO SPEECH, INCLUDING SO-CALLED
SYMBOLIC SPEECH?  OR WAS THE COURT CONFINING ITS ATTENTION TO THAT PART
OF THE STATUTE THAT PROHIBITS THE USE, IN CERTAIN PLACES AND UNDER
CERTAIN CONDITIONS, OF "LOUD AND VOCIFEROUS . . . LANGUAGE"?  THE
ANSWERS TO THESE QUESTIONS SIMPLY CANNOT BE DIVINED WITH ANY DEGREE OF
ASSURANCE FROM THE PER CURIAM OPINION. 

RULE 65(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDES THAT ANY
ORDER GRANTING AN INJUNCTION "SHALL BE SPECIFIC IN TERMS" AND "SHALL
DESCRIBE IN REASONABLE DETAIL . . . THE ACT OR ACTS SOUGHT TO BE
RESTRAINED."  /3/  AS WE POINTED OUT IN INTERNATIONAL LONGSHOREMEN'S
ASSN. V. PHILADELPHIA MARINE TRADE ASSN., 389 U.S. 64, 74, THE "RULE .
. . WAS DESIGNED TO PREVENT PRECISELY THE SORT OF CONFUSION WITH WHICH
THIS DISTRICT COURT CLOUDED ITS COMMAND."  AN INJUNCTIVE ORDER IS AN
EXTRAORDINARY WRIT, ENFORCEABLE BY THE POWER OF CONTEMPT.  "THE
JUDICIAL CONTEMPT POWER IS A POTENT WEAPON.  WHEN IT IS FOUNDED UPON A
DECREE TOO VAGUE TO BE UNDERSTOOD, IT CAN BE A DEADLY ONE.  CONGRESS
RESPONDED TO THAT DANGER BY REQUIRING THAT A FEDERAL COURT FRAME ITS
ORDERS SO THAT THOSE WHO MUST OBEY THEM WILL KNOW WHAT THE COURT
INTENDS TO REQUIRE AND WHAT IT MEANS TO FORBID."  ID., AT 76. 

THAT REQUIREMENT IS ESSENTIAL IN CASES WHERE PRIVATE CONDUCT IS
SOUGHT TO BE ENJOINED, AS WE HELD IN THE LONGSHOREMEN'S CASE.  IT IS
ABSOLUTELY VITAL IN A CASE WHERE A FEDERAL COURT IS ASKED TO NULLIFY A
LAW DULY ENACTED BY A SOVEREIGN STATE.  CF. WATSON V. BUCK, 313 U.S.
387.  /4/ 

THE ABSENCE OF AN INJUNCTIVE ORDER IN THIS CASE HAS, IN FACT, BEEN
FULLY RECOGNIZED BY THE PARTIES.  IN THEIR MOTION FOR A NEW TRIAL, THE
APPELLANTS POINTED OUT TO THE DISTRICT COURT THAT IT HAD GIVEN NO MORE
THAN "AN ADVISORY OPINION."  AND THE APPELLEES, IN THEIR BRIEF IN THIS
COURT, EMPHASIZED THAT "(NO FINAL RELIEF-- OF ANY KIND-- HAS BEEN
ORDERED BELOW."  ACCORDINGLY, THEY SAID, "NO QUESTION IS NOW PROPERLY
RAISED AS TO THE PRECISE FORM OF FEDERAL REMEDY WHICH MAY BE GRANTED." 
THEY ASSERTED THAT "THE ISSUANCE OF DECLARATORY AND INJUNCTIVE RELIEF
WILL . . . BE APPROPRIATE AT AN APPROPRIATE TIME, TO WIT, ON REMAND TO
THE COURT BELOW."  BUT IT IS PRECISELY BECAUSE THE DISTRICT COURT HAS
ISSUED NEITHER AN INJUNCTION, NOR AN ORDER GRANTING OR DENYING ONE, /5/
THAT WE HAVE NO POWER UNDER SEC. 1253 EITHER TO "REMAND TO THE COURT
BELOW"  OR DEAL WITH THE MERITS OF THIS CASE IN ANY WAY AT ALL.  /6/ 

THE RESTRAINT AND TACT THAT EVIDENTLY MOTIVATED THE DISTRICT COURT
IN REFRAINING FROM THE ENTRY OF AN INJUNCTIVE ORDER IN THIS CASE ARE
UNDERSTANDABLE.  BUT WHEN A THREE-JUDGE DISTRICT COURT ISSUES AN
OPINION EXPRESSING THE VIEW THAT A STATE STATUTE SHOULD BE ENJOINED AS
UNCONSTITUTIONAL-- AND THEN FAILS TO FOLLOW UP WITH AN INJUNCTION-- THE
RESULT IS UNFORTUNATE AT BEST.  FOR WHEN CONFRONTED WITH SUCH AN
OPINION BY A FEDERAL COURT, STATE OFFICIALS WOULD NO DOUBT HESITATE
LONG BEFORE DISREGARDING IT.  YET IN THE ABSENCE OF AN INJUNCTIVE
ORDER, THEY ARE UNABLE TO KNOW PRECISELY WHAT THE THREE-JUDGE COURT
INTENDED TO ENJOIN, AND UNABLE AS WELL TO APPEAL TO THIS COURT. 

IT NEED HARDLY BE ADDED THAT ANY SUCH RESULT IN THE PRESENT CASE WAS
DOUBTLESS UNINTENDED OR INADVERTENT.  WE MAKE THE POINT ONLY FOR THE
GUIDANCE OF FUTURE THREE-JUDGE COURTS WHEN THEY ARE ASKED TO ENJOIN THE
ENFORCEMENT OF STATE LAWS AS UNCONSTITUTIONAL. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  THE APPELLEE UNIVERSITY COMMITTEE TO END THE WAR IN VIET NAM IS
AN UNINCORPORATED ASSOCIATION CENTERED IN AUSTIN, TEXAS.  THE
INDIVIDUAL APPELLEES ARE TWO MEMBERS OF THE ASSOCIATION AND ONE
NONMEMBER WHO IS SYMPATHETIC WITH ITS PURPOSES. 

/2/  THE COURT DID ALSO WRITE AN "ADDENDUM" IN RESPONSE TO A MOTION
FOR A NEW TRIAL.  289 F.SUPP.,AT 475. 

/3/  RULE 65(D) READS AS FOLLOWS: 

"(D) FORM AND SCOPE OF INJUNCTION OR RESTRAINING ORDER.  EVERY ORDER
GRANTING AN INJUNCTION AND EVERY RESTRAINING ORDER SHALL SET FORTH THE
REASONS FOR THE ISSUANCE; SHALL BE SPECIFIC IN TERMS; SHALL DESCRIBE IN
REASONABLE DETAIL, AND NOT BY REFERENCE TO THE COMPLAINT OR OTHER
DOCUMENT, THE ACT OR ACTS SOUGHT TO BE RESTRAINED; AND IS BINDING ONLY
UPON THE PARTIES TO THE ACTION, THEIR OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, AND ATTORNEYS, AND UPON THOSE PERSONS IN ACTIVE CONCERT OR
PARTICIPATION WITH THEM WHO RECEIVE ACTUAL NOTICE OF THE ORDER BY
PERSONAL SERVICE OR OTHERWISE." 

/4/  THIS IS NOT TO SUGGEST THAT LACK OF SPECIFICITY IN AN
INJUNCTIVE ORDER WOULD ALONE DEPRIVE THE COURT OF JURISDICTION UNDER
SEC. 1253.  BUT THE ABSENCE OF ANY SEMBLANCE OF EFFORT BY THE DISTRICT
COURT TO COMPLY WITH RULE 65(D) MAKES CLEAR THAT THE COURT DID NOT
THINK THAT ITS PER CURIAM OPINION ITSELF CONSTITUTED AN ORDER GRANTING
AN INJUNCTION. 

/5/  EVEN IF THE OPINION AND SUBSEQUENT INACTION OF THE DISTRICT
COURT COULD BE CONSIDERED A DENIAL OF AN INJUNCTION BECAUSE THE
INJUNCTIVE RELIEF DEMANDED WAS NOT FORTHCOMING, THE APPELLANTS COULD
NOT APPEAL FROM AN ORDER IN THEIR FAVOR.  PUBLIC SERVICE COMM'N V.
BRASHEAR FREIGHT LINES, INC., 306 U.S. 204 (1939). 

/6/  WE DO NOT DECIDE WHETHER THE DISTRICT COURT'S OPINION MIGHT
HAVE CONSTITUTED A "JUDGMENT" SO AS TO BE APPEALABLE TO THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT.  CF. UNITED STATES V. HARK, 320 U.S.
531, 534; UNITED STATES V. SCHAEFER BREWING CO., 356 U.S. 227, 232-233;
BURNS V. OHIO, 360 U.S. 252, 254-257.  SEE R. ROBERTSON & F. KIRKHAM,
JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES SEC. 45 (WOLFSON
& KURLAND ED. 1951).  IN ANY EVENT, WE ASSUME THE DISTRICT COURT WILL
NOW TAKE FORMAL ACTION OF SUFFICIENT PRECISION AND CLARITY TO INSURE TO
ANY AGGRIEVED PARTY THE AVAILABILITY OF AN APPEAL.     MR. JUSTICE
WHITE, WITH WHOM MR. JUSTICE BRENNAN JOINS, CONCURRING. 

I JOIN THE OPINION OF THE COURT BUT DEEM IT APPROPRIATE TO EXPRESS
MY VIEW THAT THE OPINION OF THE DISTRICT COURT SHOULD BE VIEWED AS
HAVING THE OPERATIVE EFFECT OF A DECLARATORY JUDGMENT INVALIDATING THE
TEXAS STATUTE AT ISSUE IN THIS CASE.  THE APPELLANTS WERE THUS ENTITLED
TO HAVE THIS PHASE OF THE CASE REVIEWED IN THE COURT OF APPEALS, BUT
COULD NOT COME DIRECTLY HERE SINCE OUR SEC. 1253 JURISDICTION IS
LIMITED TO APPEALS FROM INJUNCTIVE ORDERS.  I AGREE WITH THE COURT THAT
THE OPINION OF THE DISTRICT COURT CANNOT BE CONSTRUED AS AN ORDER
GRANTING AN INJUNCTION AND THAT, IF IT AMOUNTS TO AN ORDER DENYING AN
INJUNCTION, IT IS NOT APPEALABLE TO THIS COURT BY THE APPELLANTS. 

DAVID W. LOUISELL ARGUED THE CAUSE FOR APPELLANTS ON THE ORIGINAL
ARGUMENT AND ON THE REARGUMENT.  WITH HIM ON THE BRIEF ON THE
REARGUMENT WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA
WHITE, FIRST ASSISTANT ATTORNEY GENERAL, ROBERT C. FLOWERS AND HOWARD
M. FENDER, ASSISTANT ATTORNEYS GENERAL, AND CHARLES ALAN WRIGHT.  ON
THE BRIEF ON THE ORIGINAL ARGUMENT WERE MESSRS.  MARTIN, FLOWERS, AND
FENDER, AND MISS WHITE. 

SAM HOUSTON CLINTON, JR., ARGUED THE CAUSE FOR APPELLEES ON THE
ORIGINAL ARGUMENT AND ON THE REARGUMENT.  WITH HIM ON THE BRIEF WERE
MORTON STAVIS, ARTHUR KINOY, AND WILLIAM M. KUNSTLER. 
..END :



















NEW HAVEN INCLUSION CASES, 399 U.S. 392 


       NEW HAVEN INCLUSION CASES  /1/

        ARGUED MARCH 30, 1970-- DECIDED JUNE 29, 1970 


WHEN THIS COURT SUSTAINED THE PENN-CENTRAL MERGER (389 U.S. 486), IT
UPHELD THE ACTION OF THE INTERSTATE COMMERCE COMMISSION (ICC) IN
CONDITIONING ITS APPROVAL OF THE MERGER ON INCLUSION AS AN OPERATING
ENTITY OF THE NEW YORK, NEW HAVEN & HARTFORD R. CO. (NEW HAVEN), WHOSE
CONTINUED OPERATION THE ICC HAD FOUND TO BE ESSENTIAL.  SINCE 1961 THE
NEW HAVEN HAD BEEN UNDER REORGANIZATION PROCEEDINGS UNDER SEC. 77 OF
THE BANKRUPTCY ACT AND WAS CLOSE TO FINANCIAL COLLAPSE.  THE BASIC
ISSUE IN THESE CASES CONCERNS THE PROPRIETY OF THE FINANCIAL TERMS FOR
THE INCLUSION.  THE ICC HAD REMITTED THE PARTIES TO NEGOTIATE THE TERMS
OF THE INCLUSION, AND AFTER CONSIDERING THEIR APPRAISALS ISSUED ITS
INCLUSION REPORT, IN WHICH IT CONCLUDED THAT THE NET LIQUIDATION VALUE
OF NEW HAVEN'S ASSETS (AFTER DEDUCTING LIQUIDATION EXPENSES AND MAKING
A DISCOUNT TO PRESENT WORTH ON THE BASIS OF HYPOTHESIZED RECEIPTS OVER
THE SIX-YEAR PERIOD ANTICIPATED FOR LIQUIDATION) WAS $125,000,000, A
FIGURE THAT THE ICC FOUND "JUST AND REASONABLE" AS A CONDITION OF THE
MERGER UNDER SEC. 5 OF THE INTERSTATE COMMERCE ACT AND "FAIR AND
EQUITABLE" AS PART OF A PLAN OF REORGANIZATION UNDER SEC. 77 OF THE
BANKRUPTCY ACT.  THE NEW HAVEN BONDHOLDERS THEREUPON COMMENCED
LITIGATION FOR REVIEW OF THE INCLUSION REPORT (IN ITS ASPECT AS A
CONDITION OF THE MERGER) IN THE THREE-JUDGE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, WHICH WAS CALLED UPON TO REVIEW THE
ORDER UNDER SEC. 5 OF THE INTERSTATE COMMERCE ACT.  THE ICC CERTIFIED
TO THE REORGANIZATION COURT IN CONNECTICUT THE SALE OF NEW HAVEN'S
ASSETS TO PENN CENTRAL, AND THE NEW HAVEN BONDHOLDERS FILED THEIR
OBJECTIONS IN THAT COURT.  THE BONDHOLDERS' GROUP AND THE UNITED STATES
EACH TRIED TO AVOID DUPLICATE LITIGATION-- THE BONDHOLDERS BY AN
APPLICATION IN THE THREE-JUDGE COURT TO ENJOIN THE ICC'S CERTIFICATION
OF ITS PLAN TO THE REORGANIZATION COURT (WHICH WAS DENIED), AND THE
UNITED STATES BY A MOTION TO DISMISS THE COMPLAINTS IN THE THREE-JUDGE
COURT (WHICH WAS ALSO DENIED).  EACH COURT, AFTER HEARINGS, CONCLUDED
THAT NEW HAVEN'S ASSETS HAD BEEN SUBSTANTIALLY UNDERVALUED AND REMANDED
THE CASE TO THE ICC.  THE ICC THEN REVALUED NEW HAVEN'S ASSETS AT A
HIGHER FIGURE THAN THAT FIRST REACHED, WHICH, AFTER DEDUCTIONS FOR
CERTAIN FACTORS NOT PREVIOUSLY CONSIDERED ("THE ADDED DEDUCTIONS"),
CAME TO $140,600,000.  IN ADDITION, THE ICC DIRECTED PENN CENTRAL TO
PAY $5,000,000 TOWARD NEW HAVEN'S INTERIM OPERATING EXPENSES.  THE
REORGANIZATION COURT ORDERED NEW HAVEN'S ASSETS TRANSFERRED TO PENN
CENTRAL, WHICH WAS DONE ON DECEMBER 31, 1968.  THE BONDHOLDERS FILED
OBJECTIONS TO THE REVISED EVALUATION WITH THE REORGANIZATION COURT AND
BROUGHT ACTIONS AGAINST THE UNITED STATES AND THE ICC IN THE THREE
JUDGE COURT.  THE REORGANIZATION COURT REJECTED THE PLAN, THOUGH IT
ACCEPTED SOME OF THE ICC'S DETERMINATIONS.  THE THREE-JUDGE COURT
SUSTAINED THE PLAN WITH MODIFICATIONS.  THOUGH THE TWO COURTS AGREED ON
MANY SUBSTANTIAL ISSUES, THE TOTAL EVALUATION REACHED BY THE
REORGANIZATION COURT EXCEEDED THAT REACHED BY THE THREE-JUDGE COURT BY
$28,000,000.  THE BONDHOLDERS APPEALED DIRECTLY TO THIS COURT FROM THE
THREE-JUDGE COURT'S JUDGMENT AND THIS COURT NOTED PROBABLE
JURISDCITION.  THE BONDHOLDERS APPEALED TO THE COURT OF APPEALS FROM
THE ORDER OF THE REORGANIZATION COURT; THE UNITED STATES, THE ICC, AND
PENN CENTRAL CROSS-APPEALED; AND THIS COURT GRANTED CERTIORARI IN
ADVANCE OF JUDGMENT.  THE DISPUTED ITEMS OF VALUATION, PLUS ONE ISSUE
AFFECTING THE CONSIDERATION GIVEN BY PENN CENTRAL, ARE AS FOLLOWS:  (1)
THOUGH THE PARTIES HAVE AGREED THAT NEW HAVEN AS PENN CENTRAL'S PARTNER
IN THE DEVELOPMENT OF THE GRANT CENTRAL TERMINAL PROPERTIES, IS
ENTITLED TO THE CAPITALIZED VALUE OF 50% OF THE "EXCESS INCOME" FROM
THOSE PROPERTIES, THE BONDHOLDERS CLAIM THAT NO RECOGNITION HAS BEEN
GIVEN TO NEW HAVEN'S RIGHT TO HAVE ITS SHARE OF BASIC TERMINAL INCOME,
USED TO DEFRAY ITS SHARE OF TERMINAL EXPENSES, FOR PURPOSES OF
DETERMINING THE FAIR PRICE PENN CENTRAL SHOULD PAY.  (2) THE NEW HAVEN
OWNED TWO LARGE FREIGHT YARDS IN THE BRONX, WHICH SERVICE IMPORTANT
INDUSTRIAL ENTERPRISES IN A 160-ACRE AREA AND A VITAL MUNICIPAL FOOD
MARKET INSTALLATION.  THE REORGANIZATION COURT RULED THAT THE ICC HAD
ERRED IN REJECTING AN APPRAISAL BY A WITNESS PREMISED UPON THE YARDS'
AVAILABILITY FOR CONTINUED INDUSTRIAL OCCUPANCY WITH EXISTING TRACKAGE
AND ELECTRICAL FACILITIES, IN FAVOR OF A LOWER APPRAISAL BASED ON HIS
ASSUMPTION THAT ON NEW HAVEN'S LIQUIDATION THE YARDS WOULD BE STRIPPED
OF THOSE FACILITIES, DEPRESSING THE VALUE OF THE LAND, AND
NECESSITATING SUBSTANTIAL REMOVAL EXPENSES.  THE THREE-JUDGE COURT
APPROVED THE ICC'S VALUATION.  (3) THE REORGANIZATION COURT REJECTED,
BUT THE THREE-JUDGE COURT APPROVED, THE ADDED DEDUCTIONS, ONE MADE BY
THE ICC IN THE NET LIQUIDATION VALUE AS AN ADJUSTMENT FOR THE ASSUMED
EFFECT OF A YEAR'S ANTICIPATED DELAY IN SECURING A CERTIFICATE OF
ABANDONMENT, THE OTHER THAT THE ICC MADE ON THE BASIS OF A HYPOTHETICAL
SALE OF ALL NEW HAVEN'S LAND ASSETS AT A BULK DISCOUNT.  (4) THE
REORGANIZATION COURT FOUND THAT THE ICC HAD OVERSTATED THE DISCOUNT FOR
THE PROJECTED SIX-YEAR LIQUIDATION.  (5) THE ICC ORDERED PENN CENTRAL
TO ASSUME INTERIM LOSSES DURING THE ACTUAL 11-MONTH PERIOD FROM MERGER
TO INCLUSION TO THE EXTENT OF A CEILING OF $5,000,000 (WHICH
CONSTITUTED ABOUT 61% OF THE TOTAL LOSS).  THE REORGANIZATION COURT
UPHELD THE ICC AND DISMISSED THE BONDHOLDERS' CONTENTION THAT PENN
CENTRAL BEAR ALL OPERATING LOSSES.  (6) THE BONDHOLDERS ATTACK THE
ICC'S ORDER THAT NEW HAVEN TRANSFER TO PENN CENTRAL ITS OWNERSHIP OF
STOCK, WHICH THE ICC FOUND WORTHLESS, IN TWO CONCERNS.  (7) THE
BONDHOLDERS URGE THAT PENN CENTRAL SHOULD PAY AN ADDED AMOUNT TO
REFLECT NEW HAVEN'S "GOING-CONCERN" VALUE AS A SUPPLEMENT TO THE
LIQUIDATION VALUE.  (8) THE NEW HAVEN RECEIVED, IN PARTIAL PAYMENT FOR
THE ASSETS TRANSFERRED TO PENN CENTRAL, 950,000 SHARES OF PENN CENTRAL
COMMON STOCK WHICH WERE VALUED AT $87.50 PER SHARE AT THE TIME OF THE
VALUATION DATE USED BY THE ICC BUT WHICH HAD DECLINED TO $63.38 AS OF
THE INCLUSION DATE.  TO REMEDY "THE UNFAIRNESS (ARISING FROM) THE FACT
THAT THE PURCHASER IS GETTING ASSETS OF SURE PRESENT VALUE WHILE THE
SELLER IS ASKED TO GAMBLE ON THE FUTURE OF PENN CENTRAL," THE
REORGANIZATION COURT PROVIDED FOR (AND THE THREE-JUDGE COURT ADOPTED)
AN "UNDERWRITING"  FORMULA UNDER WHICH PENN CENTRAL WOULD BE CALLED
UPON TO MAKE UP IN CASH THE DIFFERENCE BETWEEN THE MARKET PRICE OF PENN
CENTRAL STOCK IN 1978 AND $87.50 PER SHARE, UNLESS BEFORE THAT TIME THE
MARKET PRICE HAD ATTAINED $87.50 FOR A FIVE-DAY PERIOD.  THE
BONDHOLDERS CONTEND THAT THIS FORMULA FAILS TO CURE THE OVERVALUATION. 
THE BONDHOLDERS ALSO URGE THAT THE CONTINUED DEFICIT OPERATION OF THE
NEW HAVEN FROM THE INCEPTION OF THE REORGANIZATION PROCEEDING IN 1961
TO THE INCLUSION IN PENN CENTRAL IN 1968 RESULTED IN THEIR BEING
DEPRIVED OF PROPERTY WITHOUT JUST COMPENSATION IN VIOLATION OF THE
FIFTH AMENDMENT.  HELD: 

1.  THE THREE-JUDGE COURT ERRED IN NOT GRANTING THE GOVERNMENT'S
MOTION TO DISMISS TO THE EXTENT OF DEFERRING TO THE REORGANIZATION
COURT IN PROCEEDINGS ULTIMATELY INVOLVING ONLY THE PRICE TO BE PAID FOR
THE ASSETS OF THE DEBTOR'S ESTATE.  PP. 419-430. 

(A) THE REORGANIZATION COURT UNDER SEC. 77 OF THE BANKRUPTCY ACT AND
THE ICC HAD FULL POWER OVER THE DEBTOR AND ITS PROPERTY, INCLUDING THE
POWER TO FORMULATE AND CONFIRM A REORGANIZATION PLAN PROVIDING FOR SALE
OF THE DEBTOR'S PROPERTY, AND IT WOULD HAVE DISRUPTED THAT PLAN FOR THE
THREE-JUDGE COURT TO HAVE ENJOINED CERTIFICATION OF THE PLAN BY THE ICC
TO THE REORGANIZATION COURT.  PP. 419-421. 

(B) THOUGH TRANSFER OF THE NEW HAVEN ASSETS WAS ALSO A PART OF THE
MERGER UNDER SEC. 5 OF THE INTERSTATE COMMERCE ACT, AND NEITHER COURT
HAD "COMPLETE" JURISDICTION WHEN THE LITIGATION STARTED, THE STATUTORY
INTERRELATIONSHIP BETWEEN SEC. 5 AND SEC. 77 AND THE ABILITY OF THE
REORGANIZATION COURT TO ADJUDICATE ALL THE INCLUSION ISSUES MADE IT
ADVISABLE FOR THE THREE-JUDGE COURT TO HAVE YIELDED TO THE
REORGANIZATION COURT, IN WHICH PRIMARY JURISDCITION HAD VESTED.  PP.
423-427. 

(C) WHEN THE MERGER OCCURRED AND NO QUESTION REMAINED OF PENN
CENTRAL'S OBLIGATION TO ASSUME THE ASSETS OF NEW HAVEN, THE
JURISDICTION OF THE REORGANIZATION COURT BECAME "COMPLETE" AND THE
THREE-JUDGE COURT HAD VIRTUALLY NOTHING TO DECIDE.  PP. 427-428. 

2.  THE REORGANIZATION COURT IS EMPOWERED BY CONGRESS TO REVIEW THE
PLAN TO DETERMINE WHETHER THE ICC HAS FOLLOWED THE STATUTORY MANDATE
THAT THE PLAN BE "FAIR AND EQUITABLE" AND WHETHER THERE WAS MATERIAL
EVIDENCE TO SUPPORT THE AGENCY'S CONCLUSION.  PP. 431-435. 

3.  THERE WAS NO ERROR IN THE FINDING OF THE REORGANIZATION COURT
THAT, UNDER THE CONTRACTUAL ARRANGEMENTS, ONLY AFTER TERMINAL INCOME
HAD BEEN APPLIED TO MEETING TERMINAL EXPENSES WOULD THE RESIDUE BE
DISTRIBUTED TO THE TWO RAILROADS, AND THUS THE BASIC INCOME COULD NOT
BE "FREED UP" FROM THE OBLIGATION TO MEET TERMINAL EXPENSES.  NOR DID
THAT COURT ERR IN CONCLUDING THAT NEW HAVEN'S ACCESS RIGHTS TO THE
TERMINAL UNDER THE AGREEMENTS WERE NOT ENTITLED TO RECOGNITION IN
EVALUATING NEW HAVEN'S ASSETS, SINCE THOSE RIGHTS WERE MORE THAN OFFSET
BY NEW HAVEN'S DEFICIT OPERATIONS WHICH PENN CENTRAL ASSUMED.  PP. 438
451. 

4.  THE ICC'S ADHERENCE TO THE LOWER OF AN EXPERT WITNESS' TWO
ESTIMATES OF THE VALUATION OF THE BRONX FREIGHT YARDS WAS CLEARLY
ERRONEOUS AS IT WAS BASED ON THE PREMISE THAT NEW HAVEN WOULD DISMANTLE
THE YARDS UPON LIQUIDATION OF THE REST OF THE RAILROAD EVEN THOUGH PENN
CENTRAL ALREADY HAD A LINK BY WHICH SERVICE TO THE YARDS WOULD
CONTINUE, AND IMPLIED THAT A COMMON CARRIER COULD DENY SERVICE TO
INDUSTRIAL AND PUBLIC ACTIVITIES SIMPLY BECAUSE OWNERSHIP OF ADJOINING
TRACKAGE HAD CHANGED HANDS.  PP. 451-457. 

5.  THE REORGANIZATION COURT DID NOT ERR IN DISALLOWING THE ADDED
DEDUCTIONS.  PP. 457-473. 

(A) THE ICC SHOULD NOT HAVE MADE A DEDUCTION FOR COSTS THAT NEW
HAVEN WOULD INCUR DURING THE YEAR'S PERIOD ANTICIPATED TO OBTAIN
APPROVAL FOR ABANDONMENT OF TRAIN OPERATIONS, SINCE THE VALUATION DATE
(DECEMBER 31, 1966) REPRESENTED NOT THE DATE ON WHICH NEW HAVEN WOULD
HAVE SOUGHT A CERTIFICATE OF ABANDONMENT BUT THE DATE ON WHICH IT WOULD
HAVE COMMENCED ITS SIX-YEAR LIQUIDATION SALE.  MOREOVER, SINCE THE
INTERESTED PUBLIC BODIES HAVE NOT ARRANGED TO CONTINUE NEW HAVEN'S
TRANSPORTATION SYSTEM DURING THE LONG PERIOD NEW HAVEN HAS BEEN IN
REORGANIZATION, THERE IS NO JUSTIFICATION FOR ASSUMING THAT IF
CONFRONTED WITH AN ABANDONMENT APPLICATION THEY WOULD DO SO NOW AND
THAT A DELAY WOULD BE NECESSARY FOR THE ICC TO HEAR FROM THOSE
COMMUNITIES.  PP. 459-466. 

(B) THE ICC'S DEDUCTION FROM THE ESTATE'S LIQUIDATION VALUE, BASED
ON A HYPOTHETICAL SALE OF ALL NEW HAVEN'S LAND ASSETS IN BULK WAS
PROPERLY REJECTED BY THE REORGANIZATION COURT AS THE ICC HAD CONCLUDED
THAT ONLY ITS POWER TO COMPEL THE SALE OF THE REAL ESTATE TO A SINGLE
BUYER FOR CONTINUED OPERATION JUSTIFIED THE BULK-SALE DISCOUNT, AND
THERE IS NO EVIDENCE IN THE RECORD THAT A BULK BUYER WOULD AGREE TO
TAKE OVER NEW HAVEN PROPERTIES FOR CONTINUED SERVICE AT ANY PRICE.  PP.
468-473. 

6.  THE ADJUSTMENT MADE BY THE REORGANIZATION COURT IN THE ICC'S
ERRONEOUS COMPUTATION OF THE DISCOUNT TO PRESENT VALUES OF NEW HAVEN'S
LIQUIDATION PROCEEDS OVER THE SIX-YEAR LIQUIDATION PERIOD IS AFFIRMED
AS BEING SUBSTANTIALLY FREE FROM ERROR.  PP. 473-476. 

7.  THE PAYMENT MADE BY PENN CENTRAL FOR NEW HAVEN'S INTERIM
OPERATING LOSSES BETWEEN THE EFFECTIVE DATE OF THE MERGER AND THE DATE
OF INCLUSION, WAS IN ACCORDANCE WITH A FORMULA DEVISED BY THE ICC IN
ITS INCLUSION REPORT THAT CONSTITUTED A PRAGMATIC COMPROMISE BETWEEN
THE COMPETING INTERESTS OF THE PENN CENTRAL AND THE BONDHOLDERS.  THE
REORGANIZATION COURT'S ACCEPTANCE OF THAT DISPOSITION IS AFFIRMED.  PP.
476-479. 

8.  THE ARGUMENT OF THE BONDHOLDERS COMMITTEE THAT THE ICC ERRED IN
ORDERING THE TRANSFER TO PENN CENTRAL OF STOCKS THAT NEW HAVEN HELD IN
TWO CONCERNS, WHICH THE ICC FOUND WERE VALUELESS, IS FORECLOSED BY RES
JUDICATA SINCE THE BONDHOLDERS HAD NOT APPEALED THE ORDER OF THE
REORGANIZATION COURT DIRECTING THE TRANSFER OF NEW HAVEN ASSETS.  PP.
479-481. 

9.  THE BONDHOLDERS' CONTENTION THAT PENN CENTRAL SHOULD PAY AN
ADDED AMOUNT FOR NEW HAVEN'S "GOING-CONCERN" VALUE IS WITHOUT MERIT,
BEING ENTIRELY AT ODDS WITH THE LIQUIDATION HYPOTHESIS ON WHICH
APPRAISAL OF NEW HAVEN'S ASSETS WAS PREDICATED.  PP. 481-482. 

10.  THE "UNDERWRITING PLAN" OF THE REORGANIZATION COURT ADDED TO
THE ASSESSMENT OF PRESENT WORTH OF THE PENN CENTRAL STOCK BOTH A
REASONABLE ASSURANCE OF REALIZATION OF SUCH WORTH AND THE OPPORTUNITY
OF ADDITIONAL GAIN, AND ON THE BASIS OF THE RECORD BEFORE THAT COURT AT
THE TIME OF ITS ORDER THE PACKAGE CONSTITUTED FULL COMPENSATION FOR THE
ASSETS TRANSFERRED TO PENN CENTRAL.  IN VIEW, HOWEVER, OF THE IMPACT OF
RECENT EVENTS, WHICH MAKE IT POSSIBLE THAT THIS ASPECT OF THE DECREEE
IS NOT REALISTIC, FURTHER PROCEEDINGS WILL BE NEEDED TO REASSESS THE
CONSIDERATION THAT PENN CENTRAL MUST GIVE IN EXCHANGE FOR THE NEW HAVEN
PROPERTIES.  PP. 483-489.     11.  THE SUBSTANTIAL LOSSES TO THE
BONDHOLDERS THAT OCCURRED DURING THE COURSE OF THE REORGANIZATION
PROCEEDINGS DID NOT RESULT IN ANY UNCONSTITUTIONAL TAKING OF THE
PROPERTY OF THE BONDHOLDERS, WHOSE RIGHTS ARE NOT ABSOLUTE AND WHO WILL
BE RECEIVING THE HIGHEST AND BEST PRICE FOR THE DEBTOR'S ASSETS AS OF
THE VALUATION DATE.  MOREOVER, THE BONDHOLDERS DID NOT PETITION THE
REORGANIZATION COURT TO DISMISS THE PROCEEDINS AND THEREBY PERMIT
FORECLOSURE ON THE MORTGAGE LIENS UNTIL WELL AFTER THE VALUATION DATE. 
NOR IS THE PRICE PENN CENTRAL MUST PAY UNFAIR, IN VIEW OF THE BENEFITS
THAT WERE ANTICIPATED FROM THE MERGER.  PP. 489-495. 

NOS. 914, 916, 920, 1038, AND 1057, 304 F.SUPP.  793 AND 1136
AFFIRMED IN PART AND VACATED AND REMANDED IN PART; NOS. 915, 917, AND
921, 305 F.SUPP.  1049, VACATED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THESE CASES REPRESENT THE LATEST STAGE OF THE LITIGATION ARISING FROM
THE MERGER OF THE PENNSYLVANIA AND NEW YORK CENTRAL RAILROADS, WHICH WE
UPHELD TWO TERMS AGO IN THE PENN-CENTRAL MERGER CASES, 389 U.S. 486.  A
CONDITION OF THAT MERGER WAS PENN CENTRAL'S PROMISE TO TAKE IN THE NEW
YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY AS AN OPERATING ENTITY-- A
PROMISE THAT PENN CENTRAL FULFILLED ON DECEMBER 31, 1968, 11 MONTHS
AFTER ITS OWN FORMATION.  THE ULTIMATE QUESTION PRESENTED BY THE CASES
NOW BEFORE US IS THE PRICE PENN CENTRAL MUST PAY FOR THE ASSETS OF THE
NEW HAVEN.  /1A/

        I 

1.  THE PENN CENTRAL.  THE PROPOSED COMBINATION OF THE PENNSYLVANIA
AND NEW YORK CENTRAL RAILROADS FIRST CAME UNDER CONSIDERATION BY THE
PARTIES AND THE INTERSTATE COMMERCE COMMISSION MORE THAN 12 YEARS AGAO,
A DECADE PRIOR TO ITS EVENTUAL CONSUMMATION.  /1B/  THE TWO RAILROADS
FORMALLY SOUGHT PERMISSION TO MERGE UNDER THE INTERSTATE COMMERCE ACT,
49 U.S.C. 1 ET SEQ., ON MARCH 9, 1962.  /2/  ON APRIL 6, 1966, THE
COMMISSION AUTHORIZED THE MERGER OF THE TWO ROADS.  /3/  THE UNION OF
THE TWO CARRIERS WAS THE LARGEST RAILROAD MERGER IN THE HISTORY OF THE
NATION, /4/  BRINGING TOGETHER THE COMPANIES THAT "DOMINATE RAIL
TRANSPORTATION IN THE NORTHEAST."  /5/  IN 1965 THE COMPONENT ROADS
ENJOYED A TOTAL OPERATING REVENUE IN EXCESS OF $1,500,000,000 AND A NET
ANNUAL INCOME OF OVER $75,000,000.  /6/  THE TWO COMPANIES HELD SOME
$72,000,000 IN WORKING CAPITAL AND $1,242,000,000 IN COMBINED
INVESTMENTS.  /7/  WITH ABOUT 19,600 MILES OF ROAD "SPRAWLING BETWEEN
THE GREAT LAKES ON THE NORTH . . . AND THE OHIO AND POTOMAC RIVERS ON
THE SOUTH,"  /8/  PENN CENTRAL WAS AT ITS INCEPTION NEARLY TWICE THE
SIZE OF THE NEXT LARGEST RAILROAD SYSTEM IN THE EAST AND THREE TIMES
THAT OF THE THIRD LARGEST.  /9/ 

THE PREDICTED ECONOMIES EFFECTED BY THE MERGER WERE LIKEWISE
ENORMOUS; IT WAS THOUGHT THAT WITHIN ABOUT EIGHT YEARS OF THE
COMBINATION THEY WOULD EXCEED $80,000,000 ANNUALLY.  /10/  THOSE
SAVINGS REPRESENTED A VALUE, CAPITALIZED AT 8%, OF $1,000,000,000. 

ON JUNE 9, 1967, AFTER CONSIDERABLE LITIGATION INVOLVING PROTECTIVE
CONDITIONS FOR VARIOUS AFFECTED RAILROAD COMPETITORS, /11/  THE
COMMISSION ISSUED A MODIFIED ORDER AUTHORIZING THE PENN-CENTRAL
MERGER.  /12/  ON OCTOBER 19, 1967, A COURT OF THREE JUDGES CONVENED IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
TO REVIEW THE COMMISSION'S ORDER PURSUANT TO 28 U.S.C. 1336, 2284, AND
2321-2325, UPHELD THE COMMISSION'S ACTION.  /13/  ON JANUARY 15, 1968,
THIS COURT AFFIRMED WITH MINOR MODIFICATIONS, AND THEREBY SUSTAINED THE
VALIDITY OF THE MERGER.  /14/  TWO WEEKS LATER, ON FEBRUARY 1, 1968,
PENNSYLVANIA AND NEW YORK CENTRAL MERGED. 

2.  THE NEW HAVEN.  THE NEW YORK, NEW HAVEN & HARTFORD RAILROAD IS
NOW AN OPERATING DIVISION OF THE PENN CENTRAL SYSTEM.  AT THE TIME OF
THE MERGER, HOWEVER, IT WAS AN INDEPENDENT CLASS I RAILROAD OPERATING
SOME 1,500 MILES OF LINE IN THE COMMONWEALTH OF MASSACHUSETTS AND THE
STATES OF RHODE ISLAND, CONNECTICUT, AND NEW YORK; AS SUCH, IT WAS THE
SIXTH LARGEST RAILROAD IN THE NORTHEAST REGION AND THE LARGEST IN NEW
ENGLAND.  /15/  WITH AN OPERATIONS AREA EXTENDING FROM BOSTON TO NEW
YORK AND CONNECTING WITH NINE OTHER CLASS I RAILROADS, THE NEW HAVEN
SERVED 12 CITIES OF GREATER THAN 100,000 POPULATION, AS WELL AS A
NUMBER OF IMPORTANT DEFENSE ESTABLISHMENTS.  /16/  IN 1964 THE RAILROAD
EMPLOYED ABOUT 9,800 PEOPLE AND PAID THEM ANNUAL WAGES AMOUNTING TO
$70,000,000.  /17/  ABOUT 30,000 COMMUTERS USED THE LINE EVERY DAY TO
REACH WORK IN NEW YORK CITY ALONE.  /18/  AS DESCRIBED BY THE
COMMISSION, 

      "NEW NEW HAVEN HAS BOTH A LARGE PASSENGER AND FREIGHT

  BUSINESS.  IT IS THE FOURTH LARGEST PASSENGER CARRYING RAILROAD

  IN THE UNITED STATES, AND HAS THE SECOND HIGHEST COMMUTER REVENUE

  OF ALL SUCH ROADS.  . . . THE VOLUME OF ITS FREIGHT BUSINESS . .
.

  IS SUBSTANTIALLY GREATER.  . . . IT IS THE LARGEST FREIGHT

  RAILROAD IN NEW ENGLAND AND RANKS TENTH IN FREIGHT TRAFFIC AMONG

  ALL RAILROADS IN THE EASTERN DISTRICT.  . . . ITS FREIGHT SERVICE

  IS CONSIDERED TO BE OF EXTREME IMPORTANCE TO THE INDUSTRIAL

  WELL-BEING OF SOUTHERN NEW ENGLAND."  /19/ 

THE FINANCIAL HISTORY OF THE NEW HAVEN WAS FOR DECADES A HISTORY OF
EXTREME VICISSITUDES.  THE COMPANY'S DECLINE AND FALL, WITH PASSAGE
INTO, OUT OF, AND BACK INTO RAILROAD REORGANIZATION, HAVE BEEN
CHRONICLED ELSEWHERE.  /20/  IT FIRST WENT INTO REORGANIZATION UNDER
SEC. 77 OF THE BANKRUPTCY ACT, 11 U.S.C. 205, ON OCTOBER 23, 1935.  DUE
IN LARGE MEASURE TO THE DIFFICULTIES OF INCLUDING FORMERLY LEASED LINES
IN THE REORGANIZED ROAD, NEARLY 12 YEARS ELAPSED FROM THE FILING OF THE
DEBTOR'S PETITION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF CONNECTICUT TO THAT COURT'S EVENTUAL ORDER APPROVING CONSUMMATION OF
THE COMMISSION'S PLAN OR REORGANIZATION.  /21/ 

THE RAILROAD EMERGED FROM REORGANIZATION IN 1947 WITH A VASTLY
SIMPLIFIED DEBT STRUCTURE IN WHICH ONLY THE MOST SENIOR HOLDERS OF
SECURED INTERESTS SURVIVED.  /22/  BUT IN THE FOLLOWING YEARS THE
FINANCIAL CONDITION OF THE COMPANY AGAIN DETERIORATED, PROMPTING IT TO
SEEK AT FIRST PARTIAL AND THEN TOTAL DISCONTINUANCE OF PASSENGER
SERVICE ON THE FOMRER OLD COLONY LINES IN MASSACHUSETTS.  /23/  BY 1959
THE FINANCIAL CONDITION OF THE NEW HAVEN WAS SUCH AS TO RENDER THE
CHANGE OF SURPLUS EARNINGS "SLIGHT AT BEST."  /24/  THROUGH LATE 1960
AND INTO EARLY 1961 THE COMPANY'S MANAGEMENT EXPENDED GREAT EFFORTS TO
STAVE OFF BANKRUPTCY BY OBTAINING LOANS OR GRANTS FROM THE FEDERAL AND
STATE GOVERNMENTS.  /25/  BY THE MIDDLE OF 1961, CURRENT LIABILITIES
EXCEEDED CURRENT ASSETS BY $36,310,000, /26/  AND THE COMPANY WAS
LOSING CASH AT THE ANNUAL RATE OF $18,000,000.  /27/ 

FINALLY, ON JULY 7, 1961, THE NEW HAVEN AGAIN PETITIONED FOR
REORGANIZATION UNDER SEC. 77 IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF CONNECTICUT, A STEP THAT THE COURT WAS LATER TO FIND
HAD BEEN FAR TOO LONG DELAYED: 

     "(IN THE INTEREST OF ITS CREDITORS, ITS EMPLOYEES AND THE

  PUBLIC (THE RAILROAD) SHOULD HAVE PETITIONED . . . LONG BEFORE IT

  DID.  THE GRAVE PROBLEMS WHICH . . . BESET THE REORGANIZATION

  WOULD HAVE BEEN MUCH LESS ACUTE AND INFINITELY MORE MANAGEABLE IF

  BANKRUPTCY HAD NOT BEEN PUT OFF UNTIL ITS CASH WAS ALMOST

  ENTIRELY DEPLETED, CREDIT WAS PRACTICALLY GONE, MAINTENANCE WAS

  DOWN AND IN ALL OTHER RESPECTS THE BOTTOM WAS OUT OF THE

  BARREL."  /28/ 

IMMEDIATELY UPON THEIR TAKING OVER THE NEW HAVEN, THE TRUSTEES
APPOINTED BY THE REORGANIZATION COURT WERE OBLIGED TO BORROW $8,000,000
TO MEET THE PAYROLL.  /29/  THE SITUATION DID NOT IMPROVE WITH THE
PASSAGE OF TIME.  "(IN SPITE OF SPARTAN ECONOMIES AND A SIZEABLE
REDUCTION IN NUMBERS OF EMPLOYEES, THE COSTS OF OPERATION . . . OFFSET
SAVINGS AND ERODED AWAY THE ACCUMULATED CASH."  /30/  ON JULY 6, 1964,
THE NEW HAVEN TRUSTEES PETITIONED THE COMMISSION, PURSUANT TO SEC.
13A(2) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 13A(2), FOR AUTHORITY
TO DISCONTINUE SUBURBAN PASSENGER TRAIN SERVICE IN THE BOSTON AREA. 
THERE FOLLOWED A PUBLIC HEARING, AN ADJOURNMENT TO AFFORD MASSACHUSETTS
AUTHORITIES AN OPPORTUNITY-- ULTIMATELY UNAVAILING-- TO NEGOTIATE A
CONTRACT WITH NEW HAVEN FOR CONTINUATION OF SOME SERVICE, AND A MOTION
BY THE NEW HAVEN FOR EXPEDITED DISPOSITION "BY REASON OF THE CRITICAL
NATURE OF NEW HAVEN'S FINANCES, THE IRRETRIEVABLE DRAIN WHICH THE
OPERATIONS IN QUESTION IMPOSE UPON NEW HAVEN'S RESOURCES, AND THE
INCREASING ADVERSE EFFECT WHICH NEW HAVEN'S SITUATION HAS UPON THE
PUBLIC INTEREST AND UPON NEW HAVEN'S CREDITORS.  . . . "  THE
COMMISSION GRANTED THE TRUSTEES' APPLICATION, CONCLUDING THAT FOR A
PERIOD BEGINNING FOUR YEARS BEFORE THE 1961 REORGANIZATION PETITION AND
CONTINUING THEREAFTER, NEW HAVEN'S FINANCIAL CONDITION HAD BEEN
"CRITICAL" AND "DRASTICALLY WEAK.  . . . "  /31/ 

BY 1965 IT WAS EVIDENT THAT THE NEW HAVEN WAS ON THE VERGE OF
COLLAPSE.  /32/  ITS YEAR-END CURRENT ASSETS AMOUNTED TO $20,521,000
SOME $16,685,000 LESS THAN CURRENT LIABILITIES PLUS LONG-TERM DEBT
PAYMENTS DUE WITHIN THE COMING YEAR.  THE OBLIGATIONS PAYABLE AFTER ONE
YEAR TOTALED $189,042,000.  THE RETAINED INCOME ACCOUNT SHOWED A
DEFICIT OF $81,672,000; THE WORKING CAPITAL ACCOUNT, A DEFICIT OF
$16,700,000.  FOR THE YEAR THE NET RAILWAY OPERATING INCOME SHOWED A
DEFICIT OF $16,000,000, WITH OVERALL NET INCOME A DEFICIT ONLY
$1,000,000 LESS.  THE COMPANY WAS IN DEFAULT IN ITS PAYMENTS OF BOTH
PRINCIPAL AND INTERESTS ON ITS LONG-TERM DEBT.  /33/  IN THE VIEW OF
THE TRUSTEES, NEW HAVEN WAS "ABSOLUTELY FACED WITH ECONOMIC
OBSOLESCENCE IF IT CONTINUES AS AN INDEPENDENT, SHORT-LINE, TERMINAL
RAILROAD."  /34/ 

ON OCTOBER 11, 1965, THE NEW HAVEN NOTIFIED THE COMMISSION, PURSUANT
TO SEC. 13A(1) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 13A(1), OF ITS
INTENTION TO DISCONTINUE ALL ITS INTERSTATE PASSENGER TRAINS EFFECTIVE
MARCH 1, 1966.  /35/  IF CARRIED INTO EFFECT, THE PROPOSED
DISCONTINUANCE WOULD HAVE DRASTICALLY CURTAILED PASSENGER TRAIN SERVICE
IN NEW YORK AND MASSACHUSETTS, AND ENDED IT COMPLETELY IN CONNECTICUT
AND RHODE ISLAND.  /36/  IN THE SPRING OF 1966 THE COMMISSION, NOTING
THAT OVER AN 11-YEAR PERIOD NEW HAVEN HAD EXPERIENCED "AN UNENDING
SUCCESSION OF REVERSES," CONCLUDED THAT "(THERE NOW IS TOTALLY LACKING
ANY HOPE OR PLAN FOR FUTURE SURVIVAL OF THIS CARRIER, EXCEPT THAT HELD
OUT BY ITS MERGER INTO A TRUNKLINE RAILROAD."  /37/  THE COMMISSION
ACEDED IN PART TO THE TRUSTEES' NOTICE OF DISCONTINUANCE, BUT INVOKED
ITS STATUTORY POWER TO KEEP MANY OF THE TRAINS IN OPERATION ON THE
GROUND THAT "PASSENGER AS WELL AS FREIGHT SERVICE BY THE NEW) HAVEN) IS
A NATIONAL NECESSITY AND THAT TERMINATION OF EITHER WOULD LEAD TO
DISTRESS IN CONNECTICUT, MASSACHUSETTS, AND RHODE ISLAND, AND WOULD
SEVERELY DAMAGE NEW YORK CITY AND THE NATION GENERALLY."  /38/ 

AS 1966 GAVE WAY TO 1967, THE NEW HAVEN'S SITUATION DETERIORATED
STILL FURTHER.  AS OF APRIL 1967 THE REORGANIZATION COURT THOUGHT " THE
PROSPECT FOR THE CONTINUED OPERATION OF THE RAILROAD WAS VERY DIM." 
/39/  THE ROAD LACKED EVEN A CURRENT EXPENSE FUND FROM WHICH TO SATISFY
THE "SIX MONTHS" CREDITORS, AND THE COURT THOUGHT IT "HIGHLY UNLIKELY
THAT THERE EVERY WILL BE ONE."  /40/  IN JULY 1967 THE REORGANIZATION
COURT FOUND THAT THE NEW HAVEN'S SITUATION HAD BECOME "DESPERATELY
CRITICAL"; ITS CASH DEPLETION WAS "SO SERIOUS THAT, IF THE PRESENT RATE
OF LOSS CONTINUES, THERE WILL BE INSUFFICIENT LEFT BY LATE SEPTEMBER TO
MEET THE PAYROLL OF APPROXIMATELY $1,400,000 PER WEEK."  /41/ 

AS 1967 CAME TO AN END SO DID THE NEW HAVEN'S CASH RESERVE.  BY
AUGUST 31 THE CASH BALANCE FELL TO $4,500,000-- A PRECARIOUS CONDITION
FOR A COMPANY REQUIRING $1,750,000 A WEEK SIMPLY TO MEET CURRENT
OPERATING EXPENSES.  /42/  THE TRUSTEES ESTIMATED THAT AS OF DECEMBER
31, 1967, THE BALANCE WOULD DECLINE TO $3,100,000 AND TWO MONTHS LATER
WOULD FALL TO $850,000.  /43/  THE NEW HAVEN'S FINANCIAL POSITION HAD
THUS ERODED TO THE POINT WHERE ITS SHUTDOWN WAS "IMMINENT.  . . . "
/44/ 

3.  THE INCLUSION NEGOTIATIONS.  FROM THE OUTSET OF THE SEC. 77
PROCEEDING IN 1961, THE TRUSTEES OF THE NEW HAVEN AND THE
REORGANIZATION COURT CHARGED WITH CONSERVATION OF THE DEBTOR'S
DWINDLING ASSETS RECOGNIZED THAT "A MERGER WITH A LARGE TRUNK LINE
RAILROAD WOULD BE THE MOST PROMISING AND FEASIBLE MEANS OF CONTINUING
THE VIABILITY OF THE NEW HAVEN'S TRANSPORTATION SYSTEM.  . . . "  IN RE
NEW YORK, N.H. & H.R. CO., 289 F.SUPP.  451, 456; CF. 281 F.SUPP.  65. 
AFTER PENNSYLVANIA AND NEW YORK CENTRAL FILED THEIR MERGER APPLICATION
BEFORE THE INTERSTATE COMMERCE COMMISSION IN 1962, THE NEW HAVEN
TRUSTEES SOUGHT INCLUSION IN THE NEW COMPANY, BOTH BY PRIVATE
NEGOTIATIONS WITH THE COMPONENT ROADS AND BY A PETITION TO THE
COMMISSION FILED JUNE 26, 1962.  SEE IN RE NEW YORK, N.H. & H.R. CO.,
378 F.2D 635, 636; MERGER REPORT, 327 I.C.C. 475, 480.  AS THE
REORGANIZATION COURT SAID, IT WAS "APPARENT THAT THE INCLUSION OF THE
NEW HAVEN IN THE PENN-CENTRAL MERGER WAS TNE ONLY SALVATION FOR THE NEW
HAVEN AS AN OPERATING RAILROAD.  . . . "  IN RE NEW YORK, N.H. & H.R.
CO., 289 F.SUPP.,AT 456; SEE ALSO IN RE NEW YORK, N.H. & H.R. CO., 304
F.SUPP.  793, 800. 

THE COMMISSION, AS WE HAVE NOTED, AUTHORIZED THE MERGER OF THE TWO
ROADS IN 1966.  BUT IN SO DOING, IT FOUND THAT "(WITHOUT SOME RADICAL
CHANGE IN CIRCUMSTANCES, EVEN IF THIS MERGER APPLICATION WERE DENIED,
NEW) HAVEN) WOULD FACE A NEARLY INSUPERABLE TASK IN BRINGING ITSELF OUT
OF BANKRUPTCY."  MERGER REPORT, 327 I.C.C.,AT 522.  THE COMMISSION
CONCLUDED THAT THE PROPOSED PENN-CENTRAL COMBINATION, "WITHOUT COMPLETE
INCLUSION OF NEW) HAVEN), WOULD NOT BE CONSISTENT WITH THE PUBLIC
INTEREST.  . . . "  ID., AT 524.  ACCORDINGLY, IT REQUIRED "ALL THE NEW
HAVEN RAILROAD TO BE INCLUDED IN THE APPLICANTS' TRANSACTION," AND
CONDITIONED ITS APPROVAL OF THE MERGER UPON THAT INCLUSION, ID., AT
524, 527.  IN SO DOING, THE COMMISSION SPELLED OUT PENN CENTRAL'S
OBLIGATION TOWARD NEW HAVEN IN THE UNEQUIVOCAL LANGUAGE.  CONDITION 8
OF THE MERGER REPORT STIPULATED AS FOLLOWS: 

     "THE PENNSYLVANIA NEW YORK CENTRAL TRANSPORTATION COMPANY
SHALL

  BE REQUIRED TO INCLUDE IN THE TRANSACTION ALL THE NEW YORK, NEW

  HAVEN AND HARTFORD RAILROAD COMPANY . . . UPON SUCH FAIR AND

  EQUITABLE TERMS AS THE PARTIES MAY AGREE SUBJECT TO THE APPROVAL

  OF THE BANKRUPTCY COURT AND THE COMMISSION.  WITHIN 6 MONTHS

  AFTER THE DATE THIS REPORT IS SERVED, THE PARTIES SHALL FILE WITH

  THE COMMISSION FOR ITS APPROVAL, A PLAN FOR SUCH INCLUSION.  IN

  THE EVENT THE PARTIES ARE UNABLE TO REACH AN AGREEMENT (AND

  SUBJECT TO APPROVAL BY THE BANKRUPTCY COURT) SUCH INCLUSION SHALL

  BE UPON SUCH FAIR AND EQUITABLE TERMS AND CONDITIONS AS THE

  COMMISSION MAY IMPOSE. 

        *          *          *          * 

   "JURISDICTION IS HEREBY RESERVED FOR SUCH PURPOSES. 

CONSUMMATION OF THE MERGER BY APPLICANTS SHALL INDICATE THEIR

  FULL AND COMPLETE ASSENT TO THESE REQUIREMENTS."  327 I.C.C.,AT

  553. 

CONDITION 16 OF THE MERGER REPORT REITERATED THAT 

     "CONSUMMATION OF THE TRANSACTION APPROVED HEREIN SHALL

  CONSTITUTE ON THE PART OF THE PENNSYLVANIA RAILROAD COMPANY AND

  THE NEW YORK CENTRAL RAIROAD COMPANY, THEIR SUCCESSORS AND

  ASSIGNS, ACQUIESCENCE IN AND ASSENT TO THE CONDITIONS STATED IN

  THIS APPENDIX AND IN THE ATTACHED REPORT."  ID., AT 555. 

HAVING DETERMINED TO REQUIRE THE INCLUSION OF NEW HAVEN IN PENN
CENTRAL AS A CONDITION OF MERGER, THE COMMISSION REMITTED THE PARTIES
TO PRIVATE NEGOTIATION OF THE TERMS OF INCLUSION.  ID., AT 527.  THE
NEW HAVEN TRUSTEES ON THE ONE SIDE, AND THE PENNSYLVANIA AND NEW YORK
CENTRAL RAILROADS ON THE OTHER, HAD ALREADY BEEN BARGAINING FOR SOME
TIME, HAVING DRAFTED PRELIMINARY DOCUMENTS, DATED DECEMBER 22, 1964,
AND FEBRUARY 5, 1965, THAT PROVIDED FOR PENN CENTRAL'S ASSUMPTION OF
NEW HAVEN'S FREIGHT OPERATIONS.  OSCAR GRUSS & SON V. UNITED STATES,
261 F.SUPP.  386, 393; INTERSTATE DISCONTINUANCE CASE, 327 I.C.C. 151,
175 N. 6.  ON APRIL 21, 1966, TWO WEEKS AFTER THE MERGER REPORT, THEY
EXECUTED A PURCHASE AGREEMENT FOR THE TRANSFER OF SUBSTANTIALLY ALL THE
NEW HAVEN ASSETS TO PENN CENTRAL.  PENN-CENTRAL MERGER CASES, 389
U.S.,AT 508; SEE IN RE NEW YORK, N.H. & H.R. CO., 378 F.2D, AT 636. 
/45/ THE PURCHASE AGREEMENT PROVIDED FOR THE TRANSFER OF THE NEW HAVEN
PROPERTIES TO PENN CENTRAL, WITH THE CONSIDERATION IN EXCHANGE TO
CONSIST IN PART OF CASH AND IN PART OF STOCKS AND BONDS OF PENN
CENTRAL.  /46/ 

IN SEPTEMBER 1966 THE TRUSTEES FILED A PETITION WITH THE
REORGANIZATION COURT RECITING THE BACKGROUND OF THE NEGOTIATIONS WITH
PENN CENTRAL, THE NEW HAVEN'S LARGE AND GROWING DEFICITS, AND THE
INSUFFICIENCY OF INTERNALLY GENERATED CASH TO MEET OPERATING DEMANDS. 
IN THE TRUSTEES' VIEW, INCLUSION IN PENN CENTRAL AFFORDED "THE ONLY
PRACTICABLE MEANS FOR REORGANIZATION OF THE DEBTOR THAT IS CONSISTENT
WITH THE BEST INTEREST OF THE PUBLIC AND OF ALL PARTIES INTERESTED IN
THE DEBTOR'S ESTATE.  . . . "  THEY SUBMITTED THAT OPERATIONS SHOULD
CONTINUE SO LONG AS INCLUSION WAS POSSIBLE, AND THAT THE COURT SHOULD
GRANT THEM LEAVE TO PRESS FOR INCLUSION OF THE BASIS OF THE PURCHASE
AGREEMENT.  IN RE NEW YORK, N.H. & H.R. CO., 378 F.2D, AT 637.  ON
OCTOBER 24, 1966, THE REORGANIZATION COURT AUTHORIZED THE TRUSTEES TO
PRESENT THE AGREEMENT TO THE COMMISSION, NOTING THAT THE GOAL OF
PRESERVING THE NEW HAVEN OPERATIONS "HAS BEEN THE POLICY FROM THE
BEGINNING OF THESE PROCEEDINGS.  . . . "  THREE DAYS LATER THE TRUSTEES
AND THE PENNSYLVANIA AND NEW YORK CENTRAL RAILROADS PETITIONED THE
COMMISSION FOR APPROVAL OF THE NEW HAVEN'S INCLUSION ON THE TERMS OF
THE AGREEMENT.     ON NOVEMBER 16, 1967, THE COMMISSION RATIFIED THE
PURCHASE AGREEMENT AS THE BASIS FOR THE INCLUSION OF NEW HAVEN IN PENN
CENTRAL.  PENNSYLVANIA R. CO.-- MERGER-- NEW YORK CENTRAL R. CO., 331
I.C.C. 643 ("SECOND SUPPLEMENTAL REPORT").  IT LOOKED UPON THE FACT
THAT THE PARTIES HAD BEEN ABLE TO REACH AGREEMENT AS AN INDICATION THAT
EVEN THOUGH THE NEW HAVEN TRUSTEES WERE SELLING PROPERTIES HAVING NO
VALUE AS AN OPERATING ENTITY, THEY NEVERTHELESS HAD ENJOYED A DEGREE OF
BARGAINING POWER BY VIRTUE OF THE REQUIREMENT THAT PENN CENTRAL TAKE IN
NEW HAVEN AS A CONDITION OF THE MERGER.  331 I.C.C.,AT 657.  "(WHERE A
TRANSACTION IS BARGAINED AT ARM'S LENGTH," SAID THE COMMISSION, "EACH
SIDE IS PRESUMABLY CAPABLE OF DETERMINING ITS OWN BEST INTEREST, AND
OUR PRIMARY FUNCTION IS TO DISCOVER WHETHER THE TRANSACTION WILL BE IN
THE PUBLIC INTEREST."  ID., AT 656.  THE COMMISSION THEN UNDERTOOK ITS
INDEPENDENT ANALYSIS OF THE VALUE OF THE NEW HAVEN PROPERTIES. 
ALTHOUGH THE PURCHASE AGREEMENT "CARRIED) SOME PROBATIVE FORCE AS TO
THE VALUES OF THE PROPERTIES INVOLVED, IT (WAS) BY NO MEANS
CONTROLLING."  ID., AT 657.  THE COMMISSION MUST STILL DETERMINE THE
PRICE "ON THE BASIS OF ALL THE EVIDENCE PERTAINING THERETO, NOT MERELY
THE AGREEMENT AND SUPPORTING EVIDENCE."  ID., AT 660 N. 12. 

UPON ITS INDEPENDENT REVIEW OF THE RECORD, THE COMMISSION FOUND THAT
THE ASSET VALUE OF THE NEW HAVEN PROPERTIES TO BE TRANSFERRED TO PENN
CENTRAL AND OF THE CONSIDERATION TO BE GIVEN IN EXCHANGE WAS
$125,000,000.  THE COMMISSION CONCLUDED THAT PAYMENT OF THAT SUM BY
PENN CENTRAL TO THE NEW HAVEN ESTATE WOULD BE BOTH "JUST AND
REASONABLE" AS A CONDITION OF THE MERGER UNDER SEC. 5 OF THE INTERSTATE
COMMERCE ACT, AND "FAIR AND EQUITABLE" AS PART OF A PLAN OF
REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY ACT.  UNWILLING TO DEFER
THE MERGER UNTIL INCLUSION COULD TAKE PLACE BUT RECOGNIZING THAT THE
DANGER OF AN END TO ALL NEW HAVEN OPERATIONS WAS "VERY REAL," 331
I.C.C.,AT 654, THE COMMISSION AUTHORIZED FINANCIAL AID FROM PENN
CENTRAL TO PROP UP THE DEBTOR DURING THE INTERIM PERIOD BETWEEN MERGER
AND INCLUSION TO ENSURE NEW HAVEN'S CONTINUED FUNCTIONING UNTIL ITS
ACQUISITION BY PENN CENTRAL.  SEE PENN-CENTRAL MERGER CASES, 389
U.S.,AT 509. 

4.  THE INCLUSION LITIGATIONS.  AT THIS JUNCTURE THE COMMISSION'S
DETERMINATION OF THE TERMS OF INCLUSION WAS SUBJECTED TO SIMULTANEOUS
JUDICIAL REVIEW IN TWO SEPARATE FORUMS.  ON JANUARY 23, 1968, EIGHT
DAYS AFTER THIS COURT'S APPROVAL OF THE MERGER AND EIGHT DAYS BEFORE
THE MERGER ITSELF, THE NEW HAVEN BONDHOLDERS COMMENCED FIVE ACTIONS IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
TO SET ASIDE THE COMMISSION'S ORDER.  THE THREE-JUDGE DISTRICT COURT
RECONVENED TO HEAR THE ACTIONS AND SHORTLY THEREAFTER CONSOLIDATED THE
FIVE CASES INTO ONE.  ON MARCH 29, 1968, THE COMMISSION CERTIFIED THE
FIRST STEP OF ITS PLAN FOR THE REORGANIZATION OF THE NEW HAVEN-- THE
SALE OF ITS ASSETS TO PENN CENTRAL-- TO THE REORGANIZATION COURT.  /47/
PURSUANT TO SEC. 77(E) OF THE BANKRUPTCY ACT, 11 U.S.C. 205(E), THE
NEW HAVEN BONDHOLDERS FILED THEIR OBJECTIONS TO THE COMMISSION'S PLAN
FOLLOWING NOTICE GIVEN BY THE REORGANIZATION COURT.  THUS, THE
IDENTICAL QUESTION OF THE PRICE PENN CENTRAL WOULD HAVE TO PAY FOR THE
NEW HAVEN ASSETS CAME AT THE SAME TIME BEFORE THE THREE-JUDGE DISTRICT
COURT IN NEW YORK AND THE SINGLE-JUDGE DISTRICT COURT IN CONNECTICUT. 

ON JULY 10, 1968, THE THREE-JUDGE COURT, FOLLOWING EXTENSIVE
BRIEFING AND ARGUMENT ON THE NUMEROUS ISSUES UNDERLYING THE PRICE
QUESTION, FOUND ITSELF UNABLE TO AGREE WITH THE COMMISSION IN SEVERAL
MAJOR RESPECTS.  IT THEREFORE VACATED SO MUCH OF THE COMMISSION'S ORDER
AS FOUND THE TERMS OF PENN CENTRAL'S ACQUISITION OF THE NEW HAVEN'S
ASSETS TO BE JUST AND REASONABLE AND REMANDED THE CAUSE FOR FURTHER
PROCEEDINGS.  NEW YORK, N.H. & H.R. CO., FIRST MORTGAGE 4% BONDHOLDERS'
COMMITTEE V. UNITED STATES, 289 F.SUPP.  418.  ON AUGUST 13, 1968,
ALSO AFTER EXTENSIVE BRIEFING AND ARGUMENT, THE REORGANIZATION COURT
INDEPENDENTLY RETURNED THE COMMISSION'S PLAN FOR FURTHER PROCEEDINGS. 
IN RE NEW YORK, N.Y. & H.R. CO., 289 F.SUPP.  451.  ON THE OVERRIDING
QUESTION OF PRICE, THE TWO COURTS WERE IN ACCORD:  BY FIXING THE WORTH
OF THE NEW HAVEN AT $125,000,000, THE COMMISSION HAD SUBSTANTIALLY
UNDERSTATED THE VALUE OF THE PROPERTIES TO BE TRANSFERRED.  THE THREE
JUDGE COURT ESTIMATED THE UNDERSTATEMENT TO BE ON THE ORDER OF
$45,000,000 TO $50,000,000; THE REORGANIZATION COURT, $33,000,000 TO
$55,000,000.  289 F.SUPP., AT 440, 465. 

MEANWHILE, THE CONTINUING DRAIN ON THE NEW HAVEN'S DWINDLING CASH
RESERVES CALLED FOR-- AND RECEIVED-- DRASTIC ACTION.  UPON REMANDING
THE COMMISSION'S PROPOSED PLAN UNDER SEC. 77, THE REORGANIZATION COURT
RULED THAT UNLESS THE COMMISSION ORDERED INCLUSION BY JANUARY 1, 1969,
THE COURT WOULD ENTERTAIN A MOTION TO DISMISS THE REORGANIZATION
PROCEEDINGS, RESULTING IN TERMINATION OF ALL THE NEW HAVEN'S TRAIN
SERVICE.  289 F.SUPP.,AT 459.  THE COURT RECOMMENDED THAT THE
COMMISSION DIRECT THE EARLY INCLUSION OF NEW HAVEN WITH A PARTIAL
PAYMENT OF THE PURCHASE PRICE, DEFERRING OTHER ISSUES TO LATER
RESOLUTION.  ID., AT 466. 

ON THE REMAND, THE COMMISSION REOPENED THE RECORD FOR THE RECEPTION
OF FURTHER EVIDENCE AND BRIEFING IN ACCORDANCE WITH THE INSTRUCTIONS OF
THE TWO REVIEWING COURTS.  ITS REVALUATION OF THE NEW HAVEN PROPERTIES,
ANNOUNCED ON NOVEMBER 25, 1968, RESULTED IN AN INCREASE IN TOTAL WORTH
OF SOME $37,700,000, YIELDING A NEW PRICE OF $162,700,000 FOR THE
PROPERTIES TO BE TRANSFERRED.  PENNSYLVANIA R. CO.-- MERGER-- NEW YORK
CENTRAL R. CO., 334 I.C.C. 25, 53 ("FOURTH SUPPLEMENTAL REPORT").  BUT
THE COMMISSION THEN INVOKED "OTHER PRICING CONSIDERATIONS" NOT TAKEN
INTO ACCOUNT AT THE TIME OF ITS PRIOR REPORT.  APPLICATION OF THE NEW
CONSIDERATIONS EFFECTED A REDUCTION OF $22,081,000 FROM THE NEWLY
CALCULATED ASSET VALUE, LEAVING A NET VALUE OF $140,600,000--
$15,600,000 MORE THAN THE COMMISSION'S INITIAL ESTIMATE, BUT
$17,400,000 LESS THAN THE LOWEST RANGE OF VALUE SUGGESTED BY EITHER OF
THE TWO DISTRICT COURTS.  IN ADDITION, THE COMMISSION REQUIRED PENN
CENTRAL TO PAY $5,000,000 TOWARD THE NEW HAVEN'S INTERIM OPERATING
EXPENSES AND, YIELDING TO THE DIRECTIVE OF THE REORGANIZATION COURT,
ORDERED PENN CENTRAL TO TAKE OVER THE NEW HAVEN PROPERTIES BY JANUARY
1, 1969.  334 I.C.C.,AT 74, 76. 

THE COMMISSION CERTIFIED ITS REVISED PLAN TO THE REORGANIZATION
COURT ON DECEMBER 2, 1968.  WITHIN THREE WEEKS THE BONDHOLDERS FILED
THEIR OBJECTIONS.  ON DECMEBER 24, 1968, THE REORGANIZATION COURT
RELEASED THE ASSETS OF THE DEBTOR'S ESTATE TO PENN CENTRAL WITHOUT
APPROVING THE PRICE TERMS SET BY THE COMMISSION.  THE COURT REITERATED
THAT FAILURE TO INCLUDE NEW HAVEN IN PENN CENTRAL BY JANUARY 1, 1969,
WOULD RESULT IN IMMEDIATE TERMINATION OF ALL NEW HAVEN TRAIN SERVICE. 
ON DECEMBER 31 THE ESTATE TRANSFERRED ITS ASSETS TO PENN CENTRAL. 

AT ONCE THE BONDHOLDERS PRESSED FOR JUDICIAL REVIEW OF THE
COMMISSION'S REVISED EVALUATION.  WITH THEIR OBJECTIONS TO THE PLAN OF
REORGANIZATION ALREADY PENDING BEFORE THE REORGANIZATION COURT,
REPRESENTATIVES OF HOLDERS OF THE DEBTOR'S FIRST AND REFUNDING MORTGAGE
4% BONDS COMMENCED TWO SEPARATE ACTIONS AGAINST THE UNITED STATES AND
THE COMMISSION BEFORE THE THREE-JUDGE DISTRICT COURT IN NEW YORK.  THE
MANUFACTURERS HANOVER TRUST COMPANY AND THE CASE MANHATTAN BANK,
TRUSTEES UNDER OTHER MORTGAGE BONDS, COMMENCED TWO MORE ACTIONS AGAINST
THE SAME DEFENDANTS.  /48/  THE THREE-JUDGE COURT CONSOLIDATED THE FOUR
CASES AND GRANTED INTERVENTION-- TO THE NEW HAVEN TRUSTEES AS PARTIES
PLAINTIFF AND TO PENN CENTRAL, THE COMMONWEALTH OF MASSACHUSETTS, AND
THE STATES OF RHODE ISLAND, CONNECTICUT, AND NEW YORK AT PARTIES
DEFENDANT. 

ON MAY 28, 1969, THE REORGANIZATION COURT AGAIN REJECTED THE PLAN
SUBMITTED BY THE COMMISSION.  ALTHOUGH IT ACCEPTED THE COMMISSION'S
DETERMINATIONS ON SOME ISSUES, THE COURT OVERRULED THE COMMISSION WITH
RESPECT TO ITS VALUATION OF THE NEW HAVEN'S HARLEM RIVER AND OAK POINT
FREIGHT YARDS AND ITS ADDED DEDUCTIONS INTRODUCED FOR THE FIRST TIME ON
THE REMAND.  THE COURT ALSO INSTITUTED ITS OWN "UNDERWRITING" PLAN TO
ENSURE EQUIVALENT VALUE FOR THE ESTATE WITH RESPECT TO THE PENN CENTRAL
COMMON STOCK GIVEN IN PARTIAL CONSIDERATION FOR THE TRANSFERRED NEW
HAVEN PROPERTIES.  IN RE NEW YORK, N.H. & H.R. CO., 304 F.SUPP.  793. 
AN ORDER IMPLEMENTING DECISION AND REMANDING TO THE COMMISSION WAS
ENTERED ON JULY 28, 1969.  304 F.SUPP.  1136. 

ON JUNE 18, 1969, THE THREE-JUDGE COURT FILED ITS OPINION IN THE
BONDHOLDERS' ACTION.  WITH ONE JUDGE IN DISSENT, THE COURT UPHELD THE
COMMISSION'S VALUATION OF THE FREIGHT YARDS AND ITS ADDED DEDUCTIONS ON
THE REMAND.  THE COURT ALSO ADOPTED THE UNDERWRITING PLAN DEVISED BY
THE REORGANIZATION COURT.  NEW YORK, N.H. & H.R. CO., FIRST MORTGAGE 4%
BONDHOLDERS' COMMITTEE V. UNITED STATES, 305 F.SUPP.  1049.  A DECREE
FIXING THE TERMS OF JUDGMENT FOLLOWED ON SEPTEMBER 11, 1969.  /49/ 

WITH THE TWO DISTRICT COURTS THUS IN AGREEMENT, AFTER TWO ROUNDS OF
JUDICIAL REVIEW, ON MANY OF THE SUBSTANTIAL ISSUES THAT HAD COME BEFORE
THEM, BUT IN DISAGREEMENT ON MATTERS AMOUNTING TO MORE THAN $28,000,000
IN VALUE, THE BONDHOLDERS TOOK DIRECT APPEALS TO THIS COURT FROM THE
JUDGMENT OF THE THREE-JUDGE COURT.  THEY ALSO APPEALED FROM THE ORDER
OF THE REORGANIZATION COURT TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT.  THE UNITED STATES, THE COMMISSION AND PENN CENTRAL
TOOK NO APPEALS FROM THE DECREE OF THE THREE-JUDGE COURT BUT CROSS
APPEALED TO THE COURT OF APPEALS FROM THE ORDER OF THE REORGANIZATION
COURT.  THE COURT OF APPEALS CONSOLIDATED THE APPEALS FROM THE
REORGANIZATION COURT, AND THE PARTIES THEN PETITIONED THIS COURT TO
GRANT CERTIORARI TO THE COURT OF APPEALS IN ADVANCE OF ITS JUDGMENT,
PURSUANT TO 28 U.S.C. 1254(1) AND 2101(E), AND RULE 20 OF THIE COURT. 
WE NOTED PROBABLE JURISDICTION OF THE APPEALS FROM THE ORDER OF THE
THREE-JUDGE COURT AND, WITH RESPECT TO THE JUDGMENT OF THE
REORGANIZATION COURT, GRANTED CERTIORARI TO THE COURT OF APPEALS BEFORE
JUDGMENT, ACCELERATING BRIEFING AND ARGUMENT TO PERMIT DISPOSITION OF
THESE CASES AT THE CURRENT TERM.  396 U.S. 1056.  /50/

II 

WE FIRST CONSIDER THE DUAL REVIEW TO WHICH THE DISTRICT COURTS IN
NEW YORK AND CONNECTICUT SUBJECTED THE PRICE DETERMINATIONS OF THE
INTERSTATE COMMERCE COMMISSION.  FROM THE OUTSET ALL THE PARTIES IN THE
THREE-JUDGE COURT RECOGNIZED THAT THE PRICING QUESTIONS PRESENTED IN
THE LITIGATION THERE WERE ALSO DESTINED TO COME BEFORE THE
REORGANIZATION COURT UNDER SEC. 77 OF THE BANKRUPTCY ACT.  /51/
CONFRONTED WITH THE PROSPECT OF DUPLICATE LITIGATION, THE NEW HAVEN
BONDHOLDERS ASKED THE THREE-JUDGE COURT TO ENJOIN THE COMMISSION'S
CERTIFICATION OF ITS PLAN OF REORGANIZATION TO THE DISTRICT COURT IN
CONNECTICUT.  COUNSEL URGED THAT "IF SUCH CERTIFICATION IS NOT
RESTRAINED, THE QUESTIONS PRESENTED BY THE COMPLAINT HEREIN UNDER
BANKRUPTCY COURT UNDER SECTION 77 OF THE BANKRUPTCY ACT.  . . . "  THE
THREE-JUDGE COURT DENIED THE BONDHOLDERS' APPLICATION FOR INJUNCTIVE
RELIEF.  IN ITS VIEW, "THE BALANCE OF CONVENIENCE TILTED) HEAVILY IN
FAVOR OF ALLOWING THE CONNECITUCT COURT TO PROCEED TO SUCH EXTENT AS IT
IS ADVISED," SINCE THE GRANT OF SUCH AN INJUNCTION COULD DELAY THE
REORGANIZATION PROCEEDINGS FOR A SUBSTANTIAL TIME. 

IN THIS RULING THE THREE-JUDGE COURT WAS CORRECT.  THE JURISDICTION
OF THE REORGANIZATION COURT WAS NOT OPEN TO QUESTION.  UPON ITS
APPROVAL OF THE NEW HAVEN'S PETITION FOR REORGANIZATION IN 1961, THAT
COURT HAD ACQUIRED "EXCLUSIVE JURISDCITION OF THE DEBTOR AND ITS
PROPERTY WHEREVER LOCATED.  . . . "  BANKRUPTCY ACT, SEC. 77(A), 11
U.S.C. 205(A).  /52/  SUBJECT TO THE COURT'S CONTROL, THE TRUSTEES WHOM
IT APPOINTED WERE EMPOWERED "TO OPERATE THE BUSINESS OF THE DEBTOR." 
ID., SEC. 77(C)(2), 11 U.S.C. 205(C)(2).  THEY WERE THUS CHARGED WITH
THE DUAL RESPONSIBILITY OF CONSERVING THE DEBTOR'S ESTATE FOR THE
BENEFIT OF CREDITORS AND PRESERVING AN ONGOING RAILROAD IN THE PUBLIC
INTEREST.  MASSACHUSETTS V. BARTLETT, 384 F.2D 819, 821, CERT. DENIED,
390 U.S. 1003; 5 COLLIER ON BANKRUPTCY PARA. 77.02, AT 469-470 (14TH
ED. 1969).  /53/  WITH THESE GOALS IN VIEW, THE STATUTE BESTOWED A
"BROAD AND GENERAL" AUTHORITY UPON BOTH THE COURT AND THE TRUSTEES. 
CF. PALMER V. MASSACHUSETTS, 308 U.S. 79, 85.  THE PROVISIONS OF SEC.
77 "DOUBLESS SUFFICED) TO CONFER UPON THE (REORGANIZATION COURT) POWER
APPROPRIATE FOR ADJUSTING PROPERTY RIGHTS IN THE RAILROAD DEBTOR'S
ESTATE AND, AS TO SUCH RIGHTS, BEYOND THAT IN ORDINARY BANKRUPTCY
PROCEEDINGS."  ID., AT 85-86; CF. 5 COLLIER, SUPRA, PARA. 77.11, AT 498
499.  TOGETHER, THE COURT AND THE COMMISSION "UNQUESTIONABLY" HAD "FULL
AND COMPLETE POWER NOT ONLY OVER THE DEBTOR AND ITS PROPERTY, BUT ALSO,
AS A COROLLARY, OVER ANY RIGHTS THAT (MIGHT) BE ASSERTED AGAINST IT." 
CALLAWAY V. BENTON, 336 U.S. 132, 147.  /54/  ONE SUCH POWER WAS
PRECISELY THAT WHICH THE COMMISSION WAS ABOUT TO PROPOSE THAT THE
REORGANIZATION COURT EXERCISE-- THE POWER TO CONFIRM A PLAN OR
REORGANIZATION PROVIDING FOR "THE SALE OF ALL . . . OF THE PROPERTY OF
THE DEBTOR.  . . . "  BANKRUPTCY ACT, SEC. 77(B)(5), 11 U.S.C.
205(B)(5).  TO THAT END THE COMMISSION WAS REQUIRED TO CERTIFY ITS
PROPOSAL TO THE COURT AS A PREREQUISITE TO JUDICIAL APPROVAL.  SEC.
77(D), 11 U.S.C. 205(D).  INJUNCTIVE INTERVENTION BY THE THREE-JUDGE
COURT WOULD THUS HAVE DISRUPTED AN ESSENTIAL STATUTORY PHASE OF THE NEW
HAVEN REORGANIZATION. 

THE UNITED STATES ALSO SOUGHT TO AVOID DUPLICATE LITIGATION-- BUT BY
BYPASSING THE NEW YORK RATHER THAN THE CONNECTICUT FEDERAL COURT.  IN A
MOTION FILED SHORTLY AFTER THE COMMENCEMENT OF THE NEW HAVEN
BONDHOLDERS' SUIT IN THE THREE-JUDGE COURT, THE GOVERNMENT MOVED TO
DISMISS THE COMPLAINTS FOR LACK OF SUBJECT-MATTER JURISDICTION.  IN
SUPPORT OF THE MOTION IT WAS ARGUED THAT (1) UNTIL THE COMMISSION
CERTIFIED THE TERMS OF INCLUSION TO THE REORGANIZATION COURT, CONDITION
8 UNDER WHICH PENN CENTRAL HAD PLEDGED TO TAKE IN NEW HAVEN WAS NOT
SATISFIED AND THE COMMISSION'S ORDER WAS NOT YET REVIEWABLE; (2) BY
VIRTUE OF THE SEC. 77 ASPECTS OF THE CASE, THE REORGANIZATION COURT HAD
EXCLUSIVE JURISDICTION OVER THE PRICING QUESTIONS SOUGHT TO BE
PRESENTED TO THE THREE-JUDGE COURT; AND (3) EVEN ON THE ASSUMPTION THAT
THE THREE-JUDGE COURT HAD JURISDICTION, IT SHOULD STAY ITS HAND AS A
MATTER OF EQUITY TO AVOID AN UNNECESSARY INTERFERENCE WITH THE
PROCEEDINGS BEFORE THE REORGANIZATION COURT.     THE GOVERNMENT'S
MOTION TO DISMISS WAS OPPOSED BY PENN CENTRAL, THE NEW HAVEN TRUSTEES,
THE STATE OF NEW YORK, AND THE BONDHOLDERS.  SIGNIFICANTLY, THE
COMMISSION DID NOT OPPOSE THE MOTION.  INDEED, THE COMMISSION AGREED
WITH THE UNITED STATES THAT "MOST (AND PERHAPS ALL) OF THE ISSUES
RAISED BY THE PLAINTIFFS IN THIS THREE-JUDGE COURT WILL BE REVIEWABLE
BY THE REORGANIZATION COURT," CONCEDED THAT "THE RESULITNG CONCURRENT
JURISDICTION IS AWKWARD, AT LEAST IN THEORY," AND CONCLUDED TENTATIVELY
THAT "THE SCOPE OF JUDICIAL REVIEW . . . IN THE REORGANIZATION COURT
WOULD, AS A PRACTICAL MATTER(,) BE THE SAME AS IN THIS THREE-JUDGE
COURT."  THE THREE-JUDGE COURT DENIED THE GOVERNMENT'S MOTION TO
DISMISS.  THE BONDHOLDERS' ACTIONS, THE COURT SAID, CAME WITHIN THE
LETTER OF THE STATUTES AUTHORIZING REVIEW OF ORDERS OF THE COMMISSION. 
THE COURT CONCEDED THERE WAS "AN AREA OF OVERLAP" BETWEEN THE WORK OF
THE NEW YORK AND CONNECTICUT FORUMS, BUT THOUGHT NOTHING IN SEC. 77 OR
DECISIONAL LAW SUPERSEDED THAT DUAL ARRANGEMENT.  SEE 289 F.SUPP.,AT
424 N. 3. 

THE THREE-JUDGE COURT CORRECTLY OBSERVED THAT IN ORDERING NEW
HAVEN'S INCLUSION IN PENN CENTRAL THE COMMISSION HAD PROPERLY EXERCISED
ITS AUTHORITY UNDER BOTH SEC. 5 OF THE INTERSTATE COMMERCE ACT AND SEC.
77 OF THE BANKRUPTCY ACT.  ACT.  THE FACT THAT THE NEW HAVEN WAS IN
REORGANIZATION UDNER THE BANKRUPTCY ACT IDD NOT PRECLUDE THE COMMISSION
FROM EXERCISING ITS STATUTORY POWER, IN PASSING ON THE MERGER
APPLICATION OF TWO RAILROADS, TO REQUIRE THE INCLUSION OF A THIRD. 
INTERSTATE COMMERCE ACT, SEC. 5(2)(D), 49 U.S.C. 5(2)(D).  /55/  "THE
COMMISSION CAN UNDOUBTEDLY CARRY ON SEC. 5 PROCEEDINGS SIMULTANEOUSLY
WITH SEC. 77 REORGANIZATION PROCEEDINGS.  . . . "  CALLAWAY V. BENTON,
336 U.S.,AT 140.  HERE THE TRANSFER OF THE NEW HAVEN ASSETS WAS AS MUCH
A PART OF A MERGER UNDER SEC. 5 AS IT WAS A PLAN OF REORGANIZATION
UNDER SEC. 77. 

MOREOVER, AT THE OUTSET OF THE LITIGATION, THE JURISDICTION OF
NEITHER THE NEW YORK NOR THE CONNECTICUT COURT WAS "COMPLETE."  ON THE
ONE HAND, THE REORGANIZATION COURT LACKED COERCIVE POWER OVER PENN
CENTRAL:  UNDER SEC. 77 IT COULD NEITHER APPROVE NOR DISAPPROVE THE
MERGER QUA MERGER, AND IT COULD NOT COMPEL PENN CENTRAL TO PURCHASE THE
NEW HAVEN ASSETS.  SO FAR AS SEC. 77 WAS CONCERNED, PENN CENTRAL STOOD
IN THE POSITION OF A POTENTIAL PURCHASER, WILLING BUT NOT OBLIGED TO
BUY THE NEW HAVEN PROPERTIES.  CF. CALLAWAY V. BENTON, 336 U.S.,AT 137;
GROUP OF INSTITUTIONAL INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318
U.S. 523, 550; OLD COLONY BONDHOLDERS V. NEW YORK, N.H. & H.R. CO., 161
F.2D 413, 434 N. 5 (FRANK, J., DISSENTING), CERT. DENIED SUB NOM.
PROTECTIVE COMMITTEE V. NEW YORK, N.H. & H.R. CO., 331 U.S. 858; IN RE
NEW YORK, N.H. & H.R. CO., 54 F.SUPP.  595, 619.  ON THE OTHER HAND,
THE THREE-JUDGE COURT COULD NOT BY ITSELF EFFECT A CONVEYANCE OF THE
NEW HAVEN PROPERTIES TO PENN CENTRAL, NOR COULD IT COMPEL THE DEBTOR'S
TRSUTEES TO DO SO WITHOUT THE CONSENT OF THE REORGANIZATION COURT. 

MOVED LARGELY BY THE CONCERN THAT NEITHER COURT MIGHT HAVE
JURISDICTION OVER THE ENTIRE CASE, THE THREE-JUDGE COURT WAS OF THE
OPINION THAT MATTERS SHOULD PROCEED SIMULTANEOUSLY IN BOTH FORUMS WITH
A VIEW TO BRINGING THE SEC. 5 AND SEC. 77 ASPECTS BEFORE THIS COURT AT
THE SAME TIME.  GIVEN THE COMPLEXITIES OF THE JURISDICTIONAL QUESTION
AND THE IMPORTANCE OF AN EXPEDITED DETERMINATION OF THE MERITS, THE
THREE-JUDGE COURT PRODUCED AN UNDERSTANDABLE SOLUTION TO THE PROBLEM
INSOFAR AS IT ENSURED THAT THE ENTIRE CASE WOULD COME BEFORE THIS COURT
WITHOUT THE RISK THAT THE PARTIES MIGHT HAVE SPENT AN EXTENSIVE PERIOD
LITIGATING IN THE WRONG FORUM. 

BUT THE CIRCUMSTANCES OF THE CASE DID NOT INEXORABLY COMMAND REVIEW
IN TWO SEPARATE COURTS.  THERE WAS NO DANGER THAT APPLICATION OF THE
"FAIR AND EQUITABLE" TEST UNDER SEC. 77(E)(1) WOULD YIELD RESULTS
DIFFERENT FROM THOSE TO BE PRODUCED BY THE "JUST AND REASONABLE" TEST
OF SEC. 5(2)(B) FOR MERGERS OR THE "EQUITABLE" TEST FOR INCLUSIONS
UNDER SEC. 5(2)(D).  SEE CALLAWAY V. BENTON, 336 U.S.,AT 140.  /56/
THE REORGANIZATION STATUTE MANDATES THAT ANY DISPOSITION OF THE
DEBTOR'S PROPERTIES MUST NOT BE "INCONSISTENT WITH THE PROVISIONS AND
PURPOSES" OF THE INTERSTATE COMMERCE ACT, BANKRUPTCY ACT, SEC. 77(F),
11 U.S.C. 205(F), AND "THE REQUISITE FINDINGS UNDER THE TWO ACTS ARE
EQUIVALENT."  IN RE CHICAGO, R.I. & P.R. CO., 168 F.2D 587, 594, CERT.
DENIED SUB NOM. TEXAS V. BROWN, 335 U.S. 855.  THE COURT HAS STRESSED
THAT SEC. 77 INCORPORATES THE ELEMENTS OF SEC. 5, ST. JOE PAPER CO. V.
ATLANTIC COAST LINE R. CO., 347 U.S. 298, 310, AND WE HAVE RULED THAT
WHERE THE COMMISSION PROPOSES A MERGER AS PART OF A SEC. 77 PLAN OF
REORGANIZATION IT MUST ACT "IN ACCORDANCE WITH ALL THE REQUIREMENTS AND
RESTRICTIONS APPLICABLE TO MERGERS" UNDER THE INTERSTATE COMMERCE ACT,
ID., AT 309; CF. ECKER V. WESTERN APCIFIC R. CO., 318 U.S. 448, 481;
NEW ENGLAND COAL & COKE CO. V. RUTLAND R. CO., 143 F.2D 179, 186.  HERE
THE COMMISSION HAD DEMONSTRATED ITS AWARENESS OF THE STATUTORY
INTERRELATIONSHIP, SPECIFICALLY DEVISING INCLUSION TERMS UNDER SEC. 5
TO SATISFY THE REQUIREMENTS OF SEC. 77.  SECOND SUPPLEMENTAL REPORT,
331 I.C.C.,AT 654. 

MOREOVER, THERE WAS NO REASON TO SUPPOSE THAT THE REORGANIZATION
COURT WOULD BE UNABLE TO ADJUDICATE ALL THE QUESTIONS PRESENTED BY THE
TERMS OF THE COMMISSION'S INCLUSION ORDER.  ALTHOUGH THE THREE-JUDGE
COURT EXPRESSED CONCERN THAT CERTAIN ISSUES, SUCH AS A LOSS-SHARING
ARRANGEMENT DURING THE INTERIM PERIOD BETWEEN MERGER AND INCLUSION,
MIGHT NOT LIE WITHIN THE JURISDICTION OF THE REORGANIZATION COURT, THE
REORGANIZATION COURT NEVERTHELESS REACHED THOSE ISSUES WITHOUT, SO FAR
AS THE RECORD DISCLOSES, JURISDICTIONAL OBJECTIONS FROM ANY PARTY. 

THE THREE-JUDGE COURT THUS CONFRONTED A SITUATION WHERE IT WAS ASKED
TO CONSIDER THE SAME PRICING QUESTIONS, TO BE DETERMINED BY RECOURSE TO
THE SAME STANDARDS OF REVIEW, AS THE REORGANIZATION COURT.  "(NOT ONLY
WOULD IT . . . INVOLVE . . . A DUPLICATION OF LABOR TO (ACCEPT) . . .
JURISDICTION BUT IT MIGHT"-- AND IN FACT DID-- "RESULT . . . IN
CONTRADICTORY RULINGS UPON THE SAME ISSUES)."  PALMER V. WARREN, 108
F.2D 164, 167, AFF'D, 310 U.S. 132.  IN THESE CIRCUMSTANCES THE THREE
JUDGE COURT MIGHT WELL HAVE STAYED ITS HAND UNDER THE TRADITIONAL
PRINCIPLE THAT "THE COURT FIST TAKING OVER THE RES, DRAWS TO ITSELF
POWER TO DETERMINE ALL CLAIMS UPON IT."  PALMER V. WARREN, SUPRA; CF.
OKLAHOMA V. TEXAS, 258 U.S. 574, 581; PALMER V. TEXAS, 212 U.S. 118,
126, 129; WABASH R. CO. V. ADELBERT COLLEGE, 208 U.S. 38, 54; FARMERS'
LOAN & TRUST CO. V. LAKE STREET ELEVATED R. CO., 177 U.S. 51, 61.  WE
RECOGNIZE THAT THAT PRINCIPLE HAS COMMONLY APPLIED IN CASES WHERE BOTH
COURTS ASSERT IN REM JURISDICTION OVER THE PROPERTY IN DISPUTE, AND
THAT HERE THE THREE-JUDGE COURT'S JURISDICTION WAS IN PERSONAM IN
CHARACTER.  BUT THE CONFLICT WAS NONETHELESS ONE "BETWEEN TWO
COORDINATE COURTS OF CONCURRENT, OVERLAPPING JURISDICTION, NEITHER
BELONGING TO A CLASS WHICH BY PARAMOUNT LAW IS CATEGORICALLY GIVEN A
JURISDICTION OVER THE PARTICULAR SUBJECT MATTER PARAMOUNT TO THE
JURISDICTION OF THE OTHER."  IN RE NEW YORK, N.H. & H.R. CO., 26
F.SUPP.  18, 24, AFF'D SUB NOM. PALMER V. WARREN, SUPRA.  AND GIVEN
THAT CONFLICT, THE THREE-JUDGE COURT COULD HAVE FOLLOWED THE SETTLED
PROPOSITION THAT "(THE COURT WHICH FIRST ACQUIRED JURISDICTION THROUGH
POSSESSION OF THE PROPERTY IS VESTED, WHILE IT HOLDS POSSESSION, WITH
THE POWER TO HEAR AND DETERMINE ALL CONTROVERSIES RELATING THERETO." 
LION BONDING & SURETY CO. V. KARATZ, 262 U.S. 77, 89. 

SURELY A VESTING OF PRIMARY JURISDICTION IN THE REORGANIZATION COURT
COMPORTS WITH THE BASIC PURPOSE OF SEC. 77.  CONGRESS ENACTED THAT
STATUTE IN PART "TO PREVENT THE NOTORIOUS EVILS AND ABUSES OF CONSENT
RECEIVERSHIPS," NEW ENGLAND COAL & COKE CO. V. RUTLAND R. CO., 143
F.2D, AT 184, OF WHICH ONE OF THE MORE EGREGIOUS WAS THE REQUIREMENT OF
AN ANCILLARY FILING AND ORDER OF APPOINTMENT IN THE FEDERAL COURT FOR
EVERY DISTRICT IN WHICH THE DEBTOR HAD PROPERTY.  SEE 5 COLLIER, SUPRA,
PARA. 77.02, AT 467.  ALTHOUGH, OF COURSE, THE JURISDICTION OF THE
THREE-JUDGE COURT WAS NOT ANCILLARY TO THAT OF THE REORGANIZATION COURT
IN A TECHNICAL SENSE, DUAL REVIEW OF ISSUES ULTIMATELY GOING ONLY TO
THE VALUATION OF THE DEBTOR'S ESTATE WOULD RESURRECT THE DISCREDITED
PRACTICE OF THE EQUITY RECEIVERSHIP-- IT "WOULD TEND GREATLY TO FOMENT
CONFLICTS BETWEEN COORDINATE COURTS AND COMPEL CREDITORS, IN THE
PROTECTION OF THEIR INTERESTS, TO RIDE THE CIRCUIT, DEMONSTRATING THE
BASIS OF THEIR POSITIONS IN SUCCESSIVE COURTS."  IN RE NEW YORK, N.H. &
H.R. CO., 26 F.SUPP.,AT 23. 

BUT WE NEED NOT DECIDE THE QUESTION EXCLUSIVELY ON THE GROUNDS JUST
SET OUT.  FOR IN THE CIRCUMSTANCES IN WHICH THE UNITED STATES PRESENTED
ITS MOTION TO DISMISS IN THIS CASE, THE COURSE OF PRIOR LITIGATION HAD
LEFT THE THREE-JUDGE COURT VIRTUALLY NOTHING TO DECIDE.  ON JANUARY 15,
1968, THIS COURT HAD UPHELD THE VALIDITY OF THE PENN CENTRAL MERGER
UNDER SEC. 5 OF THE INTERSTATE COMMERCE ACT, CONDITIONED ON THE
INCLUSION OF NEW HAVEN ON TERMS SUBJECT TO OBJECTIONS TO BE "REGISTERED
AND ADJUDICATED IN THE BANKRUPTCY COURT OR UPON JUDICIAL REVIEW AS
PROVIDED BY LAW."  PENN-CENTRAL MERGER CASES, 389 U.S.,AT 511.  WE HAD
PERMITTED A POSTPONEMENT OF THE INCLUSION OF NEW HAVEN ON THE BASIS OF
PENN CENTRAL'S ACCEPTANCE OF THE INCLUSION REQUIREMENT, ID., AT 509,
AND BECUASE BY ITS ACT OF MERGER PENN CENTRAL WOULD "PERFORCE ACCEPT .
. . APPROPRIATE CONDITIONS RESPECTING THE NEW HAVEN.  . . . "  ID., AT
510. 

TWO WEEKS LATER PENN CENTRAL MERGED.  AT THAT POINT THE LACK OF
JURISDICTIONAL "COMPLETENESS" IN THE REORGANIZATION COURT, TO WHICH WE
HAVE EARLIER REFERRED, WAS CURED; FOR THERE NOW REMAINED NO QUESTION OF
PENN CENTRAL'S OBLIGATION TO TAKE OVER THE ASSETS OF THE NEW HAVEN. 
WITH PENN CENTRAL HAVING GIVEN ITS IRREVOCABLE CONSENT TO THE INCLUSION
OF NEW HAVEN BY ITS ACT OF MERGER, IT WAS EVIDENT THAT WHATEVER TERMS
THE REORGANIZATION COURT MIGHT CONFIRM, SUBJECT TO REVIEW ON APPEAL TO
THE COURT OF APPEALS FOLLOWED BY CERTIORARI HERE, WOULD BIND PENN
CENTRAL BY VIRTUE OF ITS MERGER COMMITMENT.  OF COURSE, THE TERMS OF
THE INCLUSION MUST THEMSELVES BY "JUST AND REASONABLE" AND "EQUITABLE"
UNDER SEC. 5.  BUT THOSE TERMS NOW INVOLVED ONLY THE VALUE TO BE
ACCORDED THE ASSETS TRANSFERRED, AND RESOLUTION OF THAT ISSUE WAS THE
ESSENCE OF THE SEC. 77 PROCESS.  "THE HEART OF . . . A DETERMINATION
(OF THE VALIDITY OF A PLAN OR REORGANIZATION) IS A FINDING OF FACT . .
. AS TO THE VALUE OF THE DEBTOR'S PROPERTY."  IN RE NEW YORK, N.H. &
H.R. CO., 147 F.2D 40, 49, CERT. DENIED SUB NOM.  MASSACHUSETTS V. NEW
YORK, N.H. & H.R. CO., 325 U.S. 884.  SEE 5 COLLIER, SUPRA, PARA.
77.14, AT 538-539; CF. CONSOLIDATED ROCK PRODS.  CO. V. DU BOIS, 312
U.S. 510, 524-525; FIRST NATIONAL BANK V. FLERSHEM, 290 U.S. 504, 527;
SECOND SUPPLEMENTAL REPORT, 331 I.C.C.,AT 652.  IN SHORT, WITH
IDENTICAL ISSUES BEFORE THE TWO COURTS, WITH THOSE ISSUES INVOLVING
ONLY QUESTIONS GOING TO THE VALUE OF A SEC. 77 DEBTOR'S ESTATE, WITH
CONGRUENT STANDARDS OF REIVEW, AND WITH THE IRREVOCABLE PROMISE OF PENN
CENTRAL TO TAKE IN NEW HAVEN, THE THREE-JUDGE COURT SHOULD HAVE STAYED
ITS HAND IN THE NEW HAVEN BONDHOLDERS' LITIGATION.  /57/ 

PRIOR DECISIONS OF OTHER THREE-JUDGE COURTS, AFFIRMED BY THIS COURT
ON DIRECT APPEAL, LEND SUPPORT TO THE PROPOSITION THAT THE THREE-JUDGE
COURT SHOULD HAVE DEFERRED TO THE REORGANIZATION COURT.  IN CHICAGO &
N.W.R. CO. V. UNITED STATES, 52 F.SUPP.  65, THE DEBTOR RAILWAY COMPANY
BROUGHT SUIT AGAINST THE COMMISSION IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, SEEKING THREE-JUDGE COURT REVIEW
OF A PLAN OR REORGANIZATION PREVIOUSLY APPROVED BY THE COMMISSION AND
THE COURTS.  THE DISTRICT COURT NOTED ITS "LIMITED POWER" UNDER THE
STATUTE PROVIDING FOR REVIEW BY A COURT OF THREE JUDGES, 52 F.SUPP.,AT
66.  IT CONCEDED THE "SEEMINGLY APPLICABLE LANGUAGE" OF THE THREE-JUDGE
COURT STATUTE TO "ANY ORDER OF THE INTERSTATE COMMERCE COMMISSION," BUT
HELD THAT ONCE THE COMMISSION HAS APPROVED A PLAN OF REORGANIZATION
UNDER SEC. 77, "APPEAL FROM COMMISSION ORDERS IN CONNECTION WITH
BANKRUPTCY PROCEEDINGS LIES ONLY TO A DISTRICT COURT (OF ONE JUDGE)
SETTING IN BANKRUPTCY, NOT TO A DISTRICT COURT (OF THREE JUDGES)
ASSEMBLED UNDER THE URGENT DEFICIENCIES ACT."  ID., AT 67.  /58/  ON
DIRECT APPEAL, THIS COURT SUMMARILY AFFIRMED THE DISTRICT COURT'S
JUDGEMENT.  320 U.S. 718. 

EVEN CLOSER IN POINT IS A CASE THAT AROSE DURING THE FIRST
REORGANIZATION OF THE NEW HAVEN RAILROAD-- GROUP OF BOSTON & PROVIDENCE
R. CORP. STOCKHOLDERS V. ICC, 133 F.SUPP.  488.  SHAREHOLDERS OF THE
BOSTON & PROVIDENCE, ALSO UNDERGOING REORGANIZATION, SOUGHT JUDICIAL
REVIEW BEFORE A THREE-JUDGE COURT OF THE COMMISSION'S REFUSAL TO
PROVIDE JOINT RATES AS BETWEEN NEW HAVEN AND BOSTON & PROVIDENCE--
EXCLUSIVELY AN INTERSTATE COMMERCE ACT FUNCTION.  SEE ACT, SECS. 1(4),
15(6), 49 U.S.C. 1(4), 15(6).  THE COURT HELD THAT TO GRANT THE
SHAREHOLDERS THE RULING THEY SOUGHT WOULD CONTRAVENE THE REVENUE
ALLOCATION FORMULA ALREADY ADOPTED BY THE NEW HAVEN'S REORGANIZATION
COURT AND AFFIRMED BY THE COURT OF APPEALS AND THE SUPREME COURT.  THE
THREE-JUDGE COURT ACCEPTED THE VIEW OF THE COMMISSION THAT "SO LONG AS
THE BOSTON & PROVIDENCE LINES ARE OPERATED BY THE NEW HAVEN AS LESSEE
FOR THE ACCOUNT OF THE LESSOR . . . , THE CONNECTICUT DISTRICT COURT .
. . HAS EXCLUSIVE JURISDICTION TO PASS ON THE ACCOUNTING FOR SUCH
OPERATION."  133 F.SUPP.,AT 493.  AGAIN, THIS COURT SUMMARILY
AFFIRMED.  BOSTON & PROVIDENCE R. CORP. STOCKHOLDERS V. NEW YORK, N.H.
& H.R. CO., 350 U.S. 926.     WE THEREFORE HOLD THAT THE THREE-JUDGE
COURT HERE SHOULD HAVE GRANTED THE GOVERNMENT'S MOTION TO THE EXTENT OF
DEFERRING TO THE REORGANIZATION COURT IN PROCEEDINGS ULTIMATELY
INVOLVING ONLY THE PRICE TO BE PAID FOR THE ASSETS OF THE DEBTOR'S
ESTATE.  /59/

        III 

IN TURNING TO THE JUDGEMENT OF THE REORGANIZATION COURT, WE FIST
REVIEW THE STANDARDS UNDER WHICH THAT COURT PASSED UPON THE
COMMISSION'S RULINGS. 

AFTER 35 YEARS OF SEC. 77, AS AMENDED, IT IS UNNECESSARY TO
RECANVASS THE TWO BASIC OBJECTIVES OF THE STATUTE-- THE CONSERVATION OF
THE DEBTOR'S ASSETS FOR THE BENEFIT OF CREDITORS AND THE PRESERVATION
OF AN ONGOING RAILROAD IN THE PUBLIC INTEREST.  SEE GENERALLY 5
COLLIER, SUPRA, PARA. 77.02, AT 469-470.  CENTRAL TO THE STATUTORY
OBJECTIVE THAT THE REORGANIZED COMPANY SHOULD, IF AT ALL POSSIBLE,
EMERGE AS A "LIVING, NOT A DYING . . . ENTERPRISE," VAN SCHAICK V.
MCCARTHY, 116 F.2D 987, 993, IS THE UNDERSTANDING THAT "A RAILROAD (IS)
NOT LIKE AN ORDINARY INSOLVENT ESTATE."  PALMER V. MASSACHUSETTS, 308
U.S.,AT 86.  (FOOTNOTE OMITTED.)  TO THE TRADITIONAL EQUITY
JURISDICTION OF THE BANKRUPTCY COURT, SEC. 77 ADDS THE OVERSIGHT OF THE
INTERSTATE COMMERCE COMMISSION, THE AGENCY "SPECIALLY CHARGED WITH THE
PUBLIC INTEREST REPRESENTED BY THE TRANSPORTATION SYSTEM"  IBID.  THE
STATUTE CONTEMPLATES THAT "(THE JUDICIAL FUNCTIONS OF THE BANKRUPTCY
COURT AND THE ADMINISTRATIVE FUNCTIONS OF THE COMMISSION (WILL) WORK
COOPERATIVELY IN REORGANIZATIONS."  WARREN V. PALMER, 310 U.S. 132,
138.  (FOOTNOTE OMITTED.) 

IN STRUCTURING THE COOPERATIVE ENDEAVOR OF AGENCY AND COURT,
CONGRESS "PLACED IN THE HANDS OF THE COMMISSION THE PRIMARY
RESPONSIBILITY FOR THE DEVELOPMENT OF A SUITABLE PLAN" FOR THE DEBTOR
RAILROAD.  ECKER V. WESTERN PACIFIC R. CO., 318 U.S.,AT 468.  AS THE
COURT SAID IN GROUP OF INSTITUTIONAL INVESTORS V. CHICAGO, M., ST. P. &
P.R. CO., SUPRA, "THE RATION OF DEBT TO STOCK, THE AMOUNT OF FIXED AS
DISTINGUISHED FROM CONTINGENT INTEREST, THE KIND OF CAPITAL STRUCTURE
WHICH A PARTICULAR COMPANY NEEDS TO SURVIVE THE VICISSITUDES OF THE
BUSINESS CYCLE-- ALL THESE HAVE BEEN RESERVED BY CONGRESS FOR THE
EXPERT JUDGEMENT AND OPINION OF THE COMMISSION, WHICH THE COURTS MUST
RESPECT."  318 U.S.,AT 545.  SEE ALSO IN RE NEW YORK, N.H. & H.R. CO.,
54 F.SUPP.  595, 604.  IN THE DEVELOPMENT OF THE PLAN OF REORGANIZATION
SEC. 77 ALSO HAS ACCORDED THE COMMISSION PRIMARY RESPONSBILITY FOR
DETERMINING WHEREIN LIES THE "PUBLIC INTEREST," WHICH DOES NOT REFER
GENERALLY TO MATTERS OF PUBLIC CONERN APART FROM THE PUBLIC INTEREST IN
THE MAINTENANCE OF AN ADEQUATE RAIL TRANSPORTATION SYSTEM, CF. UNITED
STATES V. LOWDEN, 308 U.S. 225, 230, BUT INCLUDES "IN A MORE RESTRICTED
SENSE," IBID., CONCERN FOR "THE AMOUNT AND CHARACTER OF THE
CAPITALIZATION OF THE REORGANIZED CORPORATION," ECKER V. WESTERN
PACIFIC R. CO., 318 U.S.,AT 473-474; CF. MASSACHUSETTS V. BARTLETT, 384
F.2D, AT 821, AS WELL AS THE "ADEQUACY OF TRANSPORTATION SERVICE, . . .
ITS ESSENTIAL CONDITIONS OF ECONOMY AND EFFICIENCY, AND . . .
APPROPRIATE PROVISION AND BEST USE OF TRANSPORTATION FACILITIES." 
TEXAS V. UNITED STATES, 292 U.S. 522, 531; NEW YORK CENTRAL SECURITIES
CORP. V. UNITED STATES, 287 U.S. 12, 25.  AS IS CLEAR FROM THE
LEGISLATIVE HISTORY AND SEC. 77 ITSELF, THE DEFERENCE TO THE COMMISSION
AS INITIATOR OF THE PLAN OF REORGANIZATION STEMS FROM THE "RECOGNITION
BY EVERYONE OF THE ADVANTAGES OF UTILIZING THE FACILITIES OF THE
COMMISSION FOR INVESTIGATION INTO THE MANY-SIDED PROBLEMS OF
TRANSPORTATION SERVICE, FINANCE AND PUBLIC INTEREST INVOLVED IN EVEN
MINOR RAILROAD REORGANIZATIONS AND UTILIZING THE COMMISSION'S
EXPERIENCE IN THESE FIELDS FOR THE APPRAISALS OF VALUES AND THE
DEVELOPMENT OF A PLAN OF REORGANIZATION, FAIR TO THE PUBLIC, CREDITORS
AND STOCKHOLDERS."  ECKER V. WESTERN PACIFIC R. CO., 318 U.S.,AT 468. 
(FOOTNOTE OMITTED.) 

BUT THE RESPECT GIVEN THE COMMISSION AS DRAFTSMAN OF THE PLAN OF
REORGANIZATION ENTAILS NO ABDICATION OF JUDICIAL RESPONSIBLITY FOR THE
WORKINGS OF THE ADMINISTRATIVE AGENCY.  AS WE HAVE HAD OCCASION TO SAY
IN DESCRIBING OTHER ASPECTS OF THE COMMISSION'S WORK, "CONGRESS DID NOT
PURPORT TO TRANSFER ITS LEGISLATIVE POWER TO THE UNBOUNDED DISCRETION
OF THE REGULATORY BODY.'"  BURLINGTON TRUCK LINES, INC. V. UNITED
STATES, 371 U.S. 156, 167.  FAR FROM DISPLACING THE JUDICIAL FUNCTION,
SEC. 77 STRIKES A "BALANCE BETWEEN THE POWER OF THE COMMISSION AND THAT
OF THE COURT."  ECKER V. WESTERN PACIFIC R. CO., SUPRA, AT 468.  THE
CHANCELLOR REMAINS "A NECESSARY AND IMPORTANT FACTOR IN RAILROAD
REORGANIZATION"; THE STATUTORY OBJECTIVE IS "ATTAINED ONLY THROUGH
PROPERLY COORDINATED ACTION BETWEEN THE COMMISSION AND THE COURT." 
ID., AT 474-475.  (FOOTNOTE OMITTED.)  IT REMAINS FOR THE
REORGANIZATION COURT TO ASCERTAIN THAT THE COMMISSION "HAS GIVEN
CONSIDERATION TO EACH ELEMENT OF VALUE CONCERNED IN ITS OVER-ALL
APPRAISAL, AND HAS NOT WRONGLY DECIDED LEGAL QUESTIONS INVOLVED IN THE
PROBLEMS OF VALUATION AND OF ALLOTMENT OF EQUIVALENT SECURITIES.  . . .
"  OLD COLONY BONDHOLDERS V. NEW YORK, N.H. & H.R. CO., 161 F.2D, AT
420. 

BUT THE REORGANIZATION COURT MAY ALSO DO MORE.  UNDER SEC.
77(C)(13), 11 U.S.C. 205(C)(13), THE COURT ON ITS OWN MOTION MAY REFER
MATTERS TO A SPECIAL MASTER FOR THE HEARING OF SUCH EVIDENCE AS THE
COURT MAY DESIRE-- A PROVISION WHICH PERMITS THE "BUILDING UP OF A
GROUP OF MEN (ENTIRELY APART FROM THE COMMISSION) THOROUGHLY INFORMED
IN RAILROAD REORGANIZATION MATTERS."  H.R. REP. NO. 1897, 72D CONG., 2D
SESS., 6 (1933).  AND UNDER SEC. 77(E), 11 U.S.C. 205(E), THE COURT MAY
ITSELF HOLD HEARINGS UPON THE COMMISSION'S CERTIFICATION OF ITS PLAN OF
REORGANIZATION, AT WHICH THE COURT IS EMPOWERED TO TAKE EVIDENCE BEYOND
THAT RECEIVED BY THE COMMISSION-- A SUPPLEMENTARY POWER, UNKNOWN TO
CONVENTIONAL JUDICIAL REVIEW, BUT DEEMED ESSENTIAL TO THE
REORGANIZATION COURT'S EXERCISE OF ITS EXTRAORDINARY "CRAM DOWN"
POWERS.  /60/  SEE S. REP. NO. 1336, 74TH CONG., 1ST SESS., 3 (1935);
H.R. REP. NO. 1283, 74TH CONG., 1ST SESS., 3 (1935).  THE STATUTORY
AUTHORITY TO APPOINT SPECIAL MASTERS AND TO HOLD EVIDENTIARY HEARINGS
REFLECTS THE UNIQUE POWERS POSSESSED BY THE REORGANIZATION COURT IN
PASSING UPON THE COMMISSION'S PROPOSED PLAN OF REORGANIZATION. 

IN SUM, CONGRESS HAS CONFIDED TO THE REORGANIZATION COURT THE "POWER
TO REVIEW THE PLAN TO DETERMINE WHETHER THE COMMISSION HAS FOLLOWED THE
STATUTORY MANDATES . . . AND WHETHER THE COMMISSION HAD MATERIAL
EVIDENCE TO SUPPORT ITS CONCLUSIONS."  RECONSTRUCTION FINANCE CORP. V.
DENVER & R.G.W.R. CO., 328 U.S. 495, 509; CF. PENN-CENTRAL MERGER
CASES, 389 U.S.,AT 498-499.  IN THE REORGANIZATION COURT REPOSES
ULTIMATE RESPONSIBILITY FOR DETERMINING THAT THE PLAN PRESENTED TO IT
BY THE COMMISSION SATISFIES THE "FAIR AND EQUITABLE" REQUIREMENT OF
SEC. 77.  SEE IN RE NEW YORK, N.H. & H.R. CO., 16 F.SUPP.  504, 507. 
AND AT THE HEART OF THAT DETERMINATION, AS WE HAVE ALREADY NOTED, IS
THE VALUATION OF THE DEBTOR'S PROPERTY.  HERE, AS ELSEWHERE IN THE
REORGANIZATION PROCEEDINGS, THE COURT MUST LOOK TO THE CONCLUSION
RECOMMENDED BY THE COMMISSION.  SEE ECKER V. WESTERN PACIFIC R. CO.,
318 U.S.,AT 472-473; CF. FREEMAN V. MULCAHY, 250 F.2D 463, 472-473,
CERT. DENIED SUB NOM. BOSTON & PROVIDENCE R. CO. V. NEW YORK, N.H. &
H.R. CO., 356 U.S. 949; IN RE NEW YORK, N.H. & H.R. CO., 54 F.SUPP. 
595, 600.  AND OFTEN THE COMMISSION'S CONCLUSION WILL ENTAIL LESS A
STATEMENT OF MATHEMATICAL CERTAINTY THAN AN ESTIMATE OF WHAT THE MARKET
WILL SAY WHEN IT SPEAKS TO THE SUBJECT.  "BUT THAT ESTIMATE MUST BE
BASED ON AN INFORMED JUDGMENT WHICH EMBRACES ALL . . . RELEVANT . . .
FACTS.  . . . "  CONSOLIDATED ROCK PRODS.  CO. V. DU DOIS, 312 U.S.,AT
526.  "THE JUDICIAL FUNCTION IS TO SEE TO IT THAT THE COMMISSION'S
'ESTIMATE' IS NOT A MERE 'GUESS' BUT RESTS UPON AN INFORMED JUDGMENT
BASED UPON AN APPRAISAL OF ALL . . . RELEVANT . . . FACTS . . . , AND
IS NOT AT VARIANCE WITH THE STATUTORY COMMAND."  FREEMAN V. MULCAHY,
250 F.2D, AT 473.  IN PERFORMING THAT FUNCTION, THE COURT MUST PROCEED
WITH AWARENESS THAT ITS REVIEW OF THE COMMISSION'S CONCLUSION ON
VALUATION, AS WITH EVERY OTHER IMPORTANT DETERMINATION THAT THE COURT
IS TO MAKE, CALLS FOR AN "'INFORMED, INDEPENDENT JUDGMENT" OF ITS OWN. 
CONSOLIDATED ROCK PRODS.  CO. V. DU BOIS, 312 U.S.,AT 520; NATIONAL
SURETY CO. V. CORIELL, 289 U.S. 426, 436. 

THERE REMAINS TO CONSIDER THE SCOPE OF REVIEW IN THIS COURT IN
PASSING UPON THE JUDICIAL DETERMINATIONS OF THE REORGANIZATION COURT. 
THAT WE HAVE GRANTED CERTIORARI TO THE COURT OF APPEALS IN ADVANCE OF
THE APPELLATE COURT'S JUDGMENT DOES NOT ALTER THE FACT THAT "OUR TASK
IS LIMITED."  PENN-CENTRAL MERGER CASES, 389 U.S.,AT 498.  IT IS NOT
FOR US TO PASS UPON THE MYRIAD FACTUAL AND LEGAL ISSUESS AS THOUGH WE
WERE TRYING THE CASES DE NOVO.  "IT IS NOT ENOUGH TO REVERSE THE
DISTRICT COURT THAT WE MIGHT HAVE APPRAISED THE FACTS SOMEWHAT
DIFFERENTLY.  IF THERE IS WARRANT FOR THE ACTION OF THE DISTRICT COURT,
OUR TASK ON REVIEW IS AT AN END."  GROUP OF INSTITUTIONAL INVESTORS V.
CHICAGO, M., ST. P. & P.R. CO., 318 U.S.,AT 564. 

IV 

AS WE HAVE EARLIER NOTED, THE PURCHASE AND SALE NEGOTIATED BY
PENNSYLVANIA, NEW YORK CENTRAL, AND THE NEW HAVEN TRUSTEES RESTED UPON
THE ESTIMATED LIQUIDATION VALUE OF THE NEW HAVEN PROPERTIES TO BE
TRANSFERRED, RATHER THAN THE EARNING POWER OF THE NEW HAVEN AS AN
OPERATING ENTITY.  SECOND SUPPLEMENTAL REPORT, 331 I.C.C.,AT 657.  THE
PARTIES TO THE PURCHASE AGREEMENT THUS GAVE RECOGNITION TO THE REALITY
OF NEW HAVEN'S DESPERATE FINANCIAL SITUATION, AS WELL AS TO THE POWER
OF THE REORGANIZATION COURT TO ORDER THE SALE OF THE DEBTOR'S
PROPERTIES AT NOT LESS THAN THE "FAIR UPSET" PRICE UNDER SEC. 77(B)(5)
OF THE BANKRUPTCY ACT.  IN APPROVING THE NEGOTIATORS' APPROACH TO THE
PRICE QUESTION, THE COMMISSION OBSERVED THAT ASSET VALUE RATHER THAN
EARNING POWER WAS THE PRIMARY DETERMINANT BECAUSE NEW HAVEN HAD "LONG
BEEN DRY OF EARNING POWER."  331 I.C.C.,AT 657.  "IF THERE IS ONE THING
ON THIS RECORD THAT IS CLEAR AND UNDENIABLE," THE COMMISSION CONCLUDED,
"IT IS THAT NEW) HAVEN) HAS NEITHER EARNING POWER NOR THE PROSPECT OF
EARNING POWER."  ID., AT 687. 

IN LIGHT OF "THE CHRONIC DEFICIT CHARACTER" OF THE NEW HAVEN
OPERATION, ID., AT 658, THE REORGANIZATION COURT UNDERSTANDABLY
ACCEPTED THE LIQUIDATION APPROACH TO VALUATION.  "THE CONCEPT OF 'GOING
CONCERN VALUE' IS FICTIONAL AS APPLIED TO THE NEW HAVEN," IT SAID,
"BECAUSE IT IGNORES THE RAILROAD'S LONG AND CONTINUING HISTORY OF
DEFICIT OPERATIONS."  289 F.SUPP.,AT 455.  (FOOTNOTE OMITTED.) 

BEFORE THE COMMISSION, THE NEW HAVEN TRUSTEES AND PENN CENTRAL
SUBMITTED COMPLETE STUDIES OF THE DEBTOR'S LIQUIDATION VALUE,
CONSISTING OF CURRENT ASSETS, SPECIAL FUNDS, INVESTMENTS, REAL ESTATE,
AND OTHER ASSETS.  AS THE COMMISSION DESCRIBED IT, "LIQUIDATION VALUE
AS USED BY BOTH THE NEW) HAVEN) TRUSTEES AND PENN-CENTRAL (WAS) THE
ESTIMATED MARKET VALUE THAT WOULD BE REALIZED IN A TOTAL LIQUIDATION,
LESS THE COST OF DISMANTLING PROPERTIES AND OTHER LIQUIDATION COSTS AND
AFTER DISCOUNTING PROCEEDS TO PRESENT WORTH."  331 I.C.C.,AT 697; CF.
IN RE NEW YORK, N.H. & H.R. CO., 304 F.SUPP.,AT 797-798. 

THE NEW HAVEN STUDY, BASED ON THE ASSETS HELD BY THE DEBTOR AS OF
DECEMBER 31, 1965, WAS MADE OVER A NINE-MINTH PERIOD BY PERSONS WHO,
THE COMMISSION FOUND, WERE FAMILIAR WITH THE RAILROAD, ITS OPERATING
AREA, AND THE NATURE AND CONDITION OF ITS PROPERTIES.  THE PENN CENTRAL
STUDY VALUED THE ASSETS AS OF DECEMBER 31, 1966; IT WAS MADE IN UNDER
TWO MONTHS BY PERSONS LESS FAMILIAR WITH THE RAILROAD.  BOTH STUDIES
REVEALED THAT NEARLY HALF THE NEW HAVEN'S ASSET VALUE CONSISTED OF ITS
HOLDINGS IN REAL ESTATE.  THE NEW HAVEN STUDY PRODUCED A GROSS VALUE
FOR ALL ASSETS, EXCLUSIVE OF NEW HAVEN'S INTEREST IN THE GRAND CENTRAL
TERMINAL PROPERTIES, OF $230,290,000; THE PENN CENTRAL STUDY,
$150,321,000. 

CONSISTENT WITH THE LIQUIDATION HYPOTHESIS, BOTH NEW HAVEN AND PENN
CENTRAL DEDUCTED FROM THE GROSS VALUE OF THE NEW HAVEN ASSETS THE
EXPENSES THAT WOULD BE INCURRED IF A LIQUIDATION IN FACT TOOK PLACE. 
THESE INCLUDED NOT ONLY THE ESTIMATED EXPENSES OF SALE BUT, IN THE CASE
OF BRIDGES, TRESTLES, AND CULVERTS, REMOVAL COSTS FOR CONVERSION OF THE
REALTY TO NONRAILROAD USE-- COSTS THAT OFTEN LEFT THE ASSETS WITH A NET
NEGATIVE VALUE.  THE NEW HAVEN TRUSTEES HYPOTHESIZED BOTH A SIX- AND A
10-YEAR LIQUIDATION PERIOD, WITH EXPENSES FOR LIQUIDATION OPERATIONS
PLUS TAXES AND INTEREST AGGREGATING $59,481,000 AND $76,847,000,
RESPECTIVELY; PENN CENTRAL ESTIMATED THE EXPENSES OF A 10-YEAR SALE TO
BE $62,172,000.  THE NET LIQUIDATION VALUE OF THE ASSETS WAS ARRIVED AT
BY DEDUCTING THE LIQUIDATION EXPENSES AND CERTAIN CURRENT ASSETS NOT TO
BE TRANSFERRED TO PENN CENTRAL, ALONG WITH A FURTHER DISCOUNT TO
PRESENT WORTH TO REFLECT THE HYPOTHESIS THAT RECEIPTS WOULD BE COMING
IN OVER A SIX- OR 10-YEAR PERIOD. 

THE COMMISSION CONCLUDED THAT ONCE THE NEW HAVEN ESTATE EMBARKED ON
A LIQUIDATION SALE, IT WOULD DISPOSE OF THE ASSETS AS QUICKLY AS
PRACTICABLE; THE COMMISSION ACCORDINGLY FOUND THAT "THE BULK OF THE
LIQUIDATION COULD BE COMPLETED WITHIN A PERIOD OF 6 YEARS."  331
I.C.C.,AT 663.  THE COMMISSION ALSO CONCLUDED THAT THE 6% DISCOUNT RATE
EMPLOYED BY NEW HAVEN AND CHALLENGED AS TOO LOW BY PENN CENTRAL WAS
OFFSET BY THE CONSERVATIVE VALUATION OF THE ASSETS THEMSELVES.  ID., AT
664.  THE COMMISSION'S ULTIMATE FINDING WAS THAT THE LIQUIDATION VALUE
OF THE NEW HAVEN ASSETS TO BE CONVEYED TO PENN CENTRAL "IS ABOUT $125
MILLION AS OF DECEMBER 31, 1966."  ID., AT 688.    AS WE HAVE NOTED
EARLIER, THE REORGANIZATION COURT DID NOT ACCEPT THE $125,000,000
FIGURE, WITH A CONSEQUENT REMAND AND SECOND ROUND OF REVIEW.  THE BULK
OF THE COMMISSION'S VALUATION HAS NOW WON THE APPROVAL OF THE
REORGANIZATION COURT AND IS NOT CHALLENGED BY ANY OF THE PARTIES HERE. 
THERE REMAINS IN DISPUTE, HOWEVER, THE VALUATION OF SEVERAL ITEMS,
AGGREGATING NEARBY $200,000,000, AND IT IS TO THOSE ITEMS THAT WE NOW
TURN. 

1.  THE GRAND CENTRAL TERMINAL PROPERTIES.  BY FAR THE LARGEST
COMPONENT IN THE DISPUTE OVER THE LIQUIDATION VALUE OF THE NEW HAVEN IS
THE DEBTOR'S INTEREST IN THE GRAND CENTRAL TERMINAL PROPERTIES.  THIS
REAL ESTATE COMPLEX CONSISTS OF SEVERAL PARCELS IN THE AREA OF MIDTOWN
MANHATTAN BOUNDED BY 42D STREET ON THE SOUTH, MADISON AVENUE ON THE
WEST, 60TH STREET ON THE NORTH, AND LEXINGTON AVENUE ON THE EAST. 
INCLUDED IN THE PROPERTIES ARE THE BARCLAY, BILTMORE, COMMODORE,
ROOSEVELT, AND WALDORF-ASTORIA HOTELS; THE PAN AMERICAN BUILDING AS
WELL AS OTHER OFFICE BUILDINGS ALONG PARK AVENUE; AND THE YALE CLUB. 
THE TOTAL ASSESSED VALUE OF THE GRAND CENTRAL TERMINAL PROPERTIES AS OF
1965 WAS $227,225,000. 

THE NEW HAVEN RAILROAD ACQUIRED THE RIGHT TO RUN ITS TRAINS INTO
MANHATTAN IN 1848, WHEN IT ENTERED INTO AN AGREEMENT FOR USE OF THE
TRACKS OF THE PREDECESSOR OF THE NEW YORK CENTRAL, TO EXTEND FOR THE
LIVES OF THE RESPECTIVE CHARTERS OF THE TWO COMPANIES.  IN 1848 NEW
HAVEN ALSO ACQUIRED AN EASEMENT OVER THE TRACKS BY LEGISLATION OF THE
STATE OF NEW YORK.  SEE NEW YORK, N.H. & H.R. CO. V. ICC, 55 F.2D 1028,
1030.  THE 1848 AGREEMENT UNDERLAY VARIOUS SUBSEQUENT CONTRACTS IN THE
1870S, '80'S, AND '90'S BETWEEN THE NEW YORK CENTRAL AND THE NEW
HAVEN. 

IN 1903 AND 1904 THE STATE OF NEW YORK ENACTED FURTHER LEGISLATION
REQUIRING THE PLACEMENT OF THE RAILROAD TRACKS BELOW GROUND THROUGH THE
15-BLOCK STRETCH NORTH OF THE PRESENT TERMINAL.  IT DID NOT TAKE THE
CENTRAL ENTREPRENEURS LONG TO REALIZE THAT COMPLIANCE WITH THE
LEGISLATIVE EDICT LEFT THE COMPANY A VAST AREA OF MIDTOWN MANHATTAN
SUITABLE FOR REALTY DEVELOPMENT.  IN 1907 CENTRAL ENTERED INTO THE
BASIC CONTRACT WITH NEW HAVEN UNDER WHICH THE PRESENT GRAND CENTRAL
TERMINAL WAS BUILT.  THE 1907 INSTRUMENT RECITED THAT IT HAD BECOME
NECESSARY TO REBUILD THE TERMINAL, INCLUDING YARDS AND TRACKS, IN ORDER
TO PROVIDE FACILITIES FOR THE PROPER MANAGEMENT AND CONDUCT OF THE TWO
RAILROADS.  CENTRAL PROMISED TO BUY NEEDED LAND AND RIGHTS-OF-WAY; NEW
HAVEN, TO MAKE PAYMENTS IN CONNECTION WITH THE DEMOLITION OF THE OLD
STATION AND THE CONSTRUCTION OF THE NEW.  THE 1907 AGREEMENT FURTHER
RECITED THAT NOTHING IT CONTAINED SHOULD IMPAIR THE RIGHTS OF THE
PARTIES UNDER THE 1848 AGREEMENT.  IT THEN WENT ON TO PROVIDE THAT
CENTRAL "DOTH DEMISE, LET AND LEASE" THE USE OF THE RAILROAD TERMINAL
TO NEW HAVEN IN COMMON WITH CENTRAL.  "RAILROAD TERMINAL" WAS DEFINED
TO "MEAN AND INCLUDE THE LAND, AND INTERESTS IN LAND, AND ALL
IMPROVEMENTS THEREON . . . , AND ALL RIGHTS IN ANY WAYS ON WHICH SAID
LAND MAY ABUT.  . . . " 

PARAGRAPH 4 OF THE 1907 AGREEMENT PROVIDED FOR JOINT CONTRIBUTIONS
BY NEW HAVEN AND CENTRAL TO TERMINAL MAINTENANCE AND OPERATION,
CALCULATED ON THE PARTIES' RESPECTIVE CAR AND LOCOMOTIVE USAGE OF THE
STATION.  THE PARAGRAPH ALSO OBLIGATED NEW HAVEN TO A MINIMUM ANNUAL
PAYMENT OF $160,179.92 WITHOUT REGARD TO THE PERCENTAGE OF ITS USE OF
THE TERMINAL.  IN ADDITION, PARA. 14 OF THE AGREEMENT STIPULATED THAT
THE MANAGER OF THE ENTERPRISE SHOULD CREDIT ALL RENTALS AND OTHER
COMPENSATION RECEIVED FROM THE RAILROAD TERMINAL TO "THE FIXED CHARGES
OR TO THE COST OF MAINTENANCE AND OPERATION OF THE SAID RAILROAD
TERMINAL, AS THE SAME MAY BE APPLICABLE." 

IN 1909, CENTRAL AND NEW HAVEN BEGAN THE JOINT FINANCING OF
CONSTRUCTION ON THE PROPERTY REFERRED TO IN THE 1907 AGREEMENT, AND IN
1913, THEY ENTERED INTO A SUPPLEMENTAL AGREEMENT IN ORDER "TO EXPRESS
MORE FULLY THE INTENT OF THE PARTIES HERETO AS TO THE RIGHT OF THE NEW
HAVEN COMPANY AND THE CENTRAL COMPANY WITH RESPECT TO THE CONSTRUCTION,
MAINTENANCE AND USE" OF THE TERMINAL PROPERTIES.  THE SUPPLEMENTAL
AGREEMENT RECITED THAT NEW HAVEN'S RIGHT OF USER INCLUDED "THE RIGHT .
. . TO JOIN WITH . . . CENTRAL . . . IN THE CONSTRUCTION, HOLDING,
MAINTENANCE AND LEASING OF BUILDINGS . . . UPON THE LAND INCLUDED
WITHIN THE RAILROAD TERMINAL."  THE HEART OF THE 1913 AMENDMENT WAS A
DETAILED PROVISION FOR THE SHARING AND REIMBURSEMENT OF CONSTRUCTION
AND MAINTENANCE COSTS, ALONG WITH A REAFFIRMATION OF THE PROCEDURE
ESTABLISHED IN PARA. 14 OF THE 1907 AGREEMENT, UNDER WHICH ALL RENTALS
WERE TO BE CREDITED TO THE TERMINAL ENTERPRISE.  IN THE FOLLOWING YEARS
THE TWO PARTIES ENTERED INTO HUNDREDS OF SUBAGREEMENTS RELATING TO THE
LEASING, FINANCING, AND SHARING OF RENTALS FROM BUILDINGS CONSTRUCTED
IN THE TERMINAL AREA.  INCOME FROM THE BUILDINGS WAS CREDITED TO THE
FIXED CHARGES, AND TO THE MAINTENANCE AND OPERATION OF THE TERMINAL
ITSELF. 

NONE OF THE AGREEMENTS BETWEEN CENTRAL AND NEW HAVEN EXPRESSLY
PROVIDED FOR THE DISPOSITION OF "EXCESS INCOME" LEFT OVER AFTER THE
SATISFACTION OF THE TERMINAL EXPENSES.  FOR HALF A CENTURY AFTER THE
1913 AGREEMENT, THE "EXCESS INCOME" QUESTION WAS OF ACADEMIC INTEREST
ONLY, SINCE EXPENSES ANNUALLY EXCEEDED REVENUES.  BUT IN 1964, AND IN
EACH SUCCEEDING YEAR, THE ACCOUNTS SHOWED EXCESS INCOME.  NEW HAVEN
DEMANDED PART OF IT, AND CENTRAL REFUSED.  THE TRUSTEES THEN BROUGHT A
CONTRACT ACTION IN THE NEW YORK SUPREME COURT TO PROTECT NEW HAVEN'S
INTEREST IN THE INCOME. 

WHEN THE NEW HAVEN TRUSTEES FIRST BEGIN NEGOTIATIONS WITH
PENNSYLVANIA AND CENTRAL FOR THE INCLUSION OF THE DEBTOR'S ASSETS IN
PENN CENTRAL, THEY PROPOSED THAT NEW HAVEN'S INTEREST IN THE
NONOPERATING TERMINAL PROPERTIES BE EXCLUDED FROM THE TAKEOVER, WITH
FINAL DISPOSITION DEFERRED UNTIL THE OUTCOME OF THE THEN-PENDING
LITIGATION.  BUT CENTRAL INSISTED IT WOULD NOT CONSIDER INCLUSION OF
NEW HAVEN IN THE MERGER UNLESS IT GOT ABSOLUTE TITLE TO ALL THE
TERMINAL PROPERTIES.  THE NEW HAVEN TRUSTEES THEREUPON SOUGHT THE
ADVICE OF LEGAL COUNSEL.  THEY WERE TOLD THAT UNDER THE AGREEMENTS WITH
CENTRAL, NEW HAVEN NOT ONLY HAD NO FEE OR LEASEHOLD INTEREST IN THE
PROPERTIES, BUT HAD NO RIGHTS AT ALL THAT WOULD SURVIVE CESSATION OF
ITS TRAIN SERVICE IN AND OUT OF THE TERMINAL OTHER THAN THE
REIMBURSEMENT OF MONIES ALREADY ADVANCED TOWARD CONSTRUCTION OF
BUILDINGS IN THE AREA.  ALTHOUGH THE NEW YORK LAWSUIT WAS PENDING TO
DETERMINE NEW HAVEN'S RIGHT TO PARTICIPATE IN THE EXCESS INCOME, THE
TRUSTEES CONCLUDED THAT AS AN ALTERNATIVE TO RISKING "TREMENDOUS
EXPENSE AND LONG DELAY" IN LITIGATION, 289 F.SUPP.,AT 462, RESOLUTION
OF THE INCLUSION NEGOTIATIONS WAS OF SUFFICIENT VALUE TO WARRANT THEIR
TRANSFERRING THE DEBTOR'S INTEREST, WHATEVER IT MIGHT BE, TO PENN
CENTRAL FOR NO CONSIDERATION WHATEVER IN EXCHANGE. 

FROM THE OUTSET THE BONDHOLDERS DISSOCIATED THEMSELVES FROM THE
TRUSTEES ON THE QUESTION OF THE DEBTOR'S RIGHTS IN THE TERMINAL
PROPERTIES.  SOME OF THE NEW HAVEN CREDITORS CLAIMED THE VALUE OF THOSE
RIGHTS TO BE $20,000,000-- THE SUM OF UNREIMBURSED ADVANCES FOR
BUILDING CONSTRUCTION AND CAPITAL IMPROVEMENTS AS CARRIED ON THE NEW
HAVEN BOOKS.  OTHERS SAID IT WAS $50,000,000-- THE CAPITALIZATION OF
ONE-HALF THE EXCESS INCOME AT 5%.  STILL OTHERS ARGUED FOR ONE-HALF THE
VALUE OF THE FEE ITSELF-- NEARLY $115,000,000. 

IN ITS SECOND SUPPLEMENTAL REPORT THE COMMISSION ESCHEWED
RESPONSIBILITY FOR DETERMINING THE LEGAL RIGHTS OF NEW HAVEN IN THE
PROPERTIES AND SET OUT ONLY TO VALUE THE DEBTOR'S CLAIM.  CONFRONTING
THE COMPLEX LEGAL RELATIONSHIP BETWEEN CENTRAL AND NEW HAVEN, WITH THE
CONSEQUENT UNPREDICTABILITY OF LITIGATION, AND UNWILLING TO DEFER
VALUATION OF NEW HAVEN'S INTEREST TO THE COMPLETION OF ALL POSSIBLE
CONTRACT ACTIONS BETWEEN THE TWO PARTIES, THE COMMISSION SET THE VALUE
OF THE CLAIM AT $13,000,000.  IT ARRIVED AT THIS FIGURE BY TAKING THE
AVERAGE OF TWO UNRELATED SUMS:  $5,000,000, REPRESENTING PENN CENTRAL'S
ESTIMATE OF THE NUISANCE VALUE OF NEW HAVEN'S CLAIM; AND $20,000,000,
REPRESENTING THE CAPITALIZATION OF NEW HAVEN'S SHARE OF THE AVERAGE OF
THE EXCESS INCOME IN 1964 AND 1965, BASED UPON ITS PROPORTIONAL USAGE
OF THE TERMINAL. 

FACED WITH THE COMMISSION'S DISCLAIMER OF RESPONSIBILITY FOR
RESOLUTION OF THE LEGAL CONTROVERSY BETWEEN CENTRAL AND NEW HAVEN, AND
GIVEN THE COMMISSION'S DRACONIAN SOLUTION TO THE QUESTION OF VALUE, THE
REORGANIZATION COURT APPOINTED A SPECIAL MASTER TO CONSIDER NEW HAVEN'S
LEGAL INTEREST IN THE TERMINAL PROPERTIES.  /61/  BASED ON HIS STUDY OF
THE COMPLEX CONTRACTUAL RELATIONS BETWEEN THE TWO PARTIES, OF WHICH WE
HAVE TOUCHED ABOVE ONLY ON THE SALIENT FEATURES, THE SPECIAL MASTER
CONCLUDED THAT CENTRAL AND NEW HAVEN HAD ENTERED INTO A "JOINT VENTURE
OR PARTNERSHIP . . . OF SOME KIND."  THE SPECIAL MASTER DISMISSED AS
UNTENABLE BOTH CENTRAL'S ARGUMENT THAT BY VIRTUE OF ITS SOLE OWNERSHIP
OF THE FEE IT WOULD ACQUIRE FULL RIGHT, TITLE, AND INTEREST IN THE
TERMINAL PROPERITES UPON THE CESSATION OF NEW HAVEN'S TRAIN SERVICE,
AND THE BONDHOLDERS' ARGUMENT THAT AS A PARTNER THE DEBTOR HAD AN
UNDIVIDED ONE-HALF INTEREST IN THE FEE.  IN 1907, WHEN THE PARTIES
ENTERED INTO THE BASIC AGREEMENT, CENTRAL HAD HAD TITLE TO THE REALTY,
AND NEW HAVEN HAD HAD A PERPETUAL RIGHT TO THE USE OF THE TRACKS BY
FORCE OF STATE LEGISLATION.  NEW HAVEN THUS HAD "NOT COME TO THE
BARGAINING TABLE IN 1907 IN THE POSTURE OF A SUPPLICANT."  THE TWO
RAILROADS TOGETHER HAD JOINED IN THE DESIGN AND CONSTRUCTION OF A
TERMINAL COMPLEX GREATER THAN EITHER NEEDED FOR ITS OWN REQUIREMENTS;
THEY HAD UNDERTAKEN A "MAJOR REAL ESTATE DEVELOPMENT TO EXTEND OVER A
PERIOD OF MANY YEARS"; AND TO THOSE ENDS THEY HAD PROVIDED FOR A
SHARING OF THE TERMINAL EXPENSES ON THE BASIS OF THEIR RESPECTIVE CAR
USAGE, ALONG WITH A COMMITTAL OF TERMINAL REVENUES TO THE OPERATION OF
THE PROJECT.  AS THE SPECIAL MASTER PUT IT, "THERE CAN BE NO QUESTION
THAT BY MUTUAL AGREEMENT THESE REVENUES FROM ALL OF THE GRAND CENTRAL
TERMINAL PROPERTIES WERE POOLED TO APPLY ON THE FIXED CHARGES AND
MAINTENANCE AND OPERATIONAL COSTS OF THE TERMINAL." 

IN LIGHT OF THE CONCLUSION THAT CENTRAL AND NEW HAVEN HAD EMBARKED
ON AN ENTERPRISE AKIN TO A PARTNERSHIP, THE SPECIAL MASTER CONCLUDED
THAT ONE THE TERMINAL REVENUES SATISFIED EXPENSES, THE EXCESS INCOME
BELONGED EQUALLY TO EACH OF THE RAILROADS.  IN HIS VIEW, THE CAR-USE
FORMULA OF THE 1907 AGREEMENT CEASED TO BE EFFECTIVE ONCE REVENUE MET
EXPENSES, AND THE PRINCIPLE OF EQUALITY BETWEEN PARTNERS TOOK ITS
PLACE.  THE SPECIAL MASTER NOTED THAT THE PARTIES HAD NOT EXPRESSLY
DEALT WITH THE QUESTION WHETHER NEW HAVEN'S INTEREST IN THE PROPERTIES
WOULD END IF NEW HAVEN CEASED TO USE THE TERMINAL.  BUT HE CONCLUDED
THAT IN SUCH AN EVENT NEW HAVEN WOULD STILL BE ENTITLED TO HALF OF THE
EXCESS INCOME; THAT RIGHT "WOULD NOT AND COULD NOT BE TERMINATED BY THE
MERE DISCONTINUANCE OF (NEW HAVEN) PASSENGER SERVICE INTO AND OUT OF
THE TERMINAL."  /62/ 

ON THE FIRST ROUND OF REVIEW THE REORGANIZATION COURT ACCEPTED THE
SPECIAL MASTER'S REPORT AND INCORPORATED IT BY REFERENCE IN ITS OWN
OPINION.  THE COURT THEREFORE REMANDED THE MATTER TO THE COMMISSION
WITH INSTRUCTIONS TO VALUE NEW HAVEN'S ONE-HALF INTEREST IN THE
TERMINAL'S FUTURE EXCESS INCOME.  IN ADDITION, THE COURT REQUESTED THE
COMMISSION TO "CONSIDER AND MAKE FINDINGS AS TO WHAT VALUE, IF ANY,
ATTACHES TO NEW HAVEN'S PRESENT RIGHT TO SHARE IN THE INCOME FOR THE
PURPOSE OF DEFRAYING ITS COST OF OPERATING IN AND OUT OF THE
TERMINAL."  289 F.SUPP.,AT 463. 

IN ITS FOURTH SUPPLEMENTAL REPORT THE COMMISSION ACCEPTED THE
DETERMINATION OF THE REORGANIZATION COURT THAT NEW HAVEN WOULD HAVE
RETAINED A RIGHT TO ONE-HALF THE EXCESS INCOME EVEN UPON LIQUIDATION. 
334 I.C.C.,AT 30-31.  FOLLOWING AN EXTENSIVE CONSIDERATION OF FUTURE
TERMINAL EXPENSES AND OFFICE-BUILDING AND HOTEL INCOME, THE COMMISSION
PROJECTED A FUTURE EXCESS INCOME OF $4,550,000 A YEAR, OF WHICH NEW
HAVEN'S 50% SHARE, CAPITALIZED AT 8%, AMOUNTED TO $28,438,000.  334
I.C.C.AT 39.  THE NEW FIGURE THUS CAME TO MORE THAN TWICE THAT AWARDED
BY THE COMMISSION ON THE FIRST ROUND. 

THE COMMISSION ALSO COMPLIED WITH THE REQUEST OF THE REORGANIZATION
COURT THAT IT CONSIDER THE VALUE OF NEW HAVEN'S RIGHT OF ACCESS INTO
THE TERMINAL.  THE COMMISSION CONCLUDED THAT THE RIGHT WOULD HAVE NO
VALUE TO NEW HAVEN UNLESS A BUYER WERE WILLING TO PAY FOR IT; THAT THE
ONLY POTENTIAL BUYER IN SIGHT WAS THE STATE OF NEW YORK, WHICH WOULD
NOT NEED TO BID FOR USE OF THE TERMINAL; AND, ACCORDINGLY, THAT NEW
HAVEN'S RIGHT OF USER WAS VALUELESS.  334 I.C.C.,AT 32.  THE
BONDHOLDERS' CLAIM OF VALUE FOR THE RIGHT OF ACCESS, THE COMMISSION
SAID, AMOUNTED TO A DEMAND FOR ONE-HALF OF ALL OF THE INCOME FREE OF
THE TERMINAL EXPENSES.  ID., AT 32 N. 11.  ON THE SECOND ROUND OF
REVIEW, THE REORGANIZATION COURT AGREED THAT THE COMMISSION'S
DETERMINATIONS MUST STAND WITH RESPECT TO BOTH THE LIQUIDATION VALUE OF
NEW HAVEN'S INTEREST IN THE TERMINTAL PROPERTIES AND ITS RIGHT OF FREE
ACCESS INTO THE STATION.  /63/ 

MANY ASPECTS OF THE CONTROVERSY OVER THE GRAND CENTRAL TERMINAL
PROPERTIES HAVE NOW DROPPED FROM CONTENTION.  /64/  THE BONDHOLDERS NO
LONGER CLAIM THAT NEW HAVEN IS ENTITLED TO ONE-HALF THE VALUE OF THE
FEE.  PENN CENTRAL NO LONGER CLAIMS THAT ITS FEE OWNERSHIP OF THE
PROPERTIES REDUCED NEW HAVEN'S STATUS TO THAT OF A MERE GRANTEE
RETAINING ONLY THE PRIVILEGE OF ENTRY INTO THE TERMINAL.  ALL PARTIES
ACCEPT NEW HAVEN'S RIGHT TO THE CAPITALIZATION VALUE OF ONE-HALF THE
EXCESS INCOME.  /65/  WHAT REMAINS IS THE CLAIM OF THE BONDHOLDERS THAT
NEW HAVEN IS ENTITLED TO THE CAPITALIZED VALUE OF ITS SHARE NOT ONLY OF
THE EXCESS INCOME REMAINING AFTER SATISFACTION OF THE TERMINAL
EXPENSES, BUT OF THE BASIC INCOME MEETING THE EXPENSES THEMSELVES.  YET
THE CENTRAL FINDING OF THE REORGANIZATION COURT REMAINS UNREFUTED:
THAT BY FORCE OF THE AGREEMENTS BETWEEN NEW YORK CENTRAL AND NEW HAVEN,
THE TERMINAL INCOME WAS FIRST TO BE DEVOTED TO MEETING TERMINAL
EXPENSES; ONLY THEN WAS THE RESIDUE TO BECOME AVAILABLE FOR
DISTRIBUTION TO THE TWO RAILROADS.  TO BE SURE, THE PARTIES CUSTOMARILY
REFERRED TO THEIR RESPECTIVE SHARES OF THE TERMINAL REVENUES.  BUT THE
SPECIAL MASTER FOUND THAT THE TERMINAL REVENUES WERE ALLOCATED TO
CENTRAL AND NEW HAVEN ON THEIR RESPECTIVE CAR-USE BASES AS AN
ACCOUNTING CONVENIENCE.  THE CAR-USE FORMULA ESTABLISHED BY THE 1907
AGREEMENT "RESULTED, FOR ACCOUNTING PURPOSES, IN THE CORRESPONDING
PROPORTION OF THE REVENUE ENTERING THE TERMINAL ACCOUNT BEING TREATED
AS THE PROPERTY OF EACH RAILROAD, AND IN EACH RAILROAD'S BEING RELIEVED
PRO TANTO FROM THE AMOUNT OF ITS LIABILITY TO MEET THE CHARGES.  . . .
" 

THE BONDHOLDERS ARGUE THAT THE BASIC INCOME OF THE TERMINAL COULD
SOMEHOW BE "FREED UP" FROM THE OBLIGATION TO MEET TERMINAL EXPENSES. 
BUT THE SPECIAL MASTER CONSIDERED AND REJECTED THAT THEORY. 

"BOTH PARTIES . . . COMMITTED THEMSELVES TO POURING THESE REVENUES
FROM THE ENTIRE GRAND CENTRAL COMPLEX INTO THE TERMINAL ACCOUNT UNDER
PARAGRAPH 14 OF THE AGREEMENT OF 1907.  THE REVENUES WERE TO ENTER THAT
ACCOUNT AND WERE TO BE EXPENDED, SUPERIOR TO THE INDIVIDUAL INTERESTS
OF EACH RAILROAD, BY BEING APPLIED ON PAYMENT OF THE FIXED CHARGES AND
EXPENSES OF OPERATION AND MAINTENANCE OF THE TERMINAL.  THOSE REVENUES
WERE PLEDGED TO THAT PURPOSE REGARDLESS OF WHETHER NEW HAVEN UTILIZED
ONE PER CENT OR FIFTY PER CENT OF THE TERMINAL'S PASSENGER FACILITIES,
OR WHETHER IT USED ANY OF THOSE FACILITIES AT ALL.  IT WAS NOT
CONTEMPLATED THAT IF EITHER RAILROAD DISCONTINUED PASSENGER TRAINS INTO
GRAND CENTRAL THE OTHER WOULD BE SADDLED WITH THE ENTIRE EXPENSE OF A
TERMINAL LARGER THAN EITHER RAILROAD NEEDED WITHOUT BEING CREDITED WITH
THESE ENTIRE REVENUES FROM THE GRAND CENTRAL TERMINAL PROPERTIES TO THE
EXTENT THAT THEY WERE REQUIRED TO MEET EXPENDITURES.  . . . " 

NEVERTHELESS, CHASE MANHATTAN ARGUES THAT THE COMMITMENT OF REVENUES
IS MERELY A CREATURE OF THE AGREEMENT BETWEEN CENTRAL AND NEW HAVEN AS
CONSTRUED BY THE SPECIAL MASTER, AND THAT THE TRANSFER OF NEW HAVEN'S
TERMINAL INTERESTS ON DECEMBER 31, 1968 "WIPED OUT" THAT AGREEMENT. 
"THE AGREEMENT THEREAFTER WAS NO LONGER IN EXISTENCE," SAYS CHASE, "AND
PENN CENTRAL NOW HAS THIS (BASIC) INCOME (BOTH THE FORMER NEW YORK
CENTRAL'S SHARE AND THE FORMER NEW HAVEN'S SHARE) FREE AND CLEAR OF ANY
RESTRICTION AGAINST ITS USE IN ANY WAY PENN CENTRAL SEE FIT."  STATED
IN THIS FASHION, THE ARGUMENT IS SELF-DEFEATING:  SINCE NEW HAVEN'S
RIGHT TO THE BASIC INCOME DERIVES SOLELY FROM ITS AGREEMENT WITH
CENTRAL, A "WIPING OUT" OF THAT AGREEMENT NECESSARILY LEAVES NEW HAVEN
WITHOUT THE RIGHT AS WELL AS WITHOUT THE OBLIGATION.  BUT, MORE
IMPORTANTLY, IT SIMPLY IS NOT TRUE THAT PENN CENTRAL NOW HAS NEW
HAVEN'S FORMER SHARE IN SUCH INCOME WITHOUT "ANY RESTRICTION OF ANY
KIND.  . . . "  PENN CENTRAL ALSO HAS NEW HAVEN'S LOSS OPERATIONS INTO
AND OUT OF THE TERMINAL, AND IT MUST MEET THE EXPENSES OCCASIONED BY
THOSE OPERATIONS FROM SOME SOURCE.  SINCE BY DEFINITION NEW HAVEN'S
SHARE OF THE BASIC INCOME WAS, AS AN ACCOUNTING MATTER, EQUAL TO ITS
SHARE OF THE TERMINAL EXPENSES, BY ITS 1968 TRANSFER IT HAS MERELY
SURRENDERED AN AMOUNT EQUAL TO ITS GAIN:  IT HAS GIVEN UP ITS SHARE OF
THE INCOME PLEDGED TO THE COSTS OF OPERATIONS AT THE TERMINAL, BUT IT
HAS RELIEVED ITSELF OF THE OBLIGATION TO MEET THOSE COSTS.  BY THE SAME
TOKEN, PENN CENTRAL HAS GAINED NEW HAVEN'S SHARE OF INCOME, BUT WITH
THE MATCHING LOSS OF NEW HAVEN'S EXPENSES. 

THE BONDHOLDERS' ARGUMENT MUST BE THAT ENTIRELY APART FROM THE
CONTRACTUAL ARRANGEMENTS WITH CENTRAL, NEW HAVEN HAD A VALUABLE RIGHT
OF FREE ACCESS INTO THE TERMINAL, WHICH PENN CENTRAL HAS NOW TAKEN OVER
WITH NO COMPENSATING PAYMENT IN EXCHANGE.  THIS ARGUMENT, TOO, IS
WITHOUT MERIT.  IT IS A MISNOMER TO DESCRIBE NEW HAVEN'S RIGHT OF
ACCESS TO THE TERMINAL AS "FREE."  NEW HAVEN HAD A RIGHT OF ENTRY,
RATHER THAN A PRIVILEGE, IN THE SENSE THAT IT HAD ACCESS, INDEPENDENTLY
OF THE CONSENT OF THE FEE OWNER OF THE TRACKS, BY FORCE OF LEGISLATIVE
EDICT.  BUT THE RIGHT BESTOWED BY THE LEGISLATURE WAS CONDITIONED "UPON
SUCH TERMS . . . AS (HAVE) BEEN OR MAY HEREAFTER BE AGREED UPON BY AND
BETWEEN" NEW HAVEN AND CENTRAL'S PREDECESSOR.  N.Y. SESS. LAWS OF 1848,
C. 143, SEC. 6.  THUS THE NEW HAVEN RIGHT OF ACCESS HAS NEVER BEEN FREE
FROM THE OBLIGATIONS IMPOSED BY THE AGREEMENTS WITH CENTRAL. 

BUT EVEN IF THE ACCESS RIGHT WERE "FREE" IN THE SENSE THAT IT COULD
SURVIVE ELIMINATION OF NEW HAVEN'S AGREEMENTS WITH CENTRAL, WE AGREE
WITH THE REORGANIZATION COURT THAT THE COMMISSION CORRECTLY CONCLUDED
IT WOULD HAVE NO VALUE.  AND THAT IS THE CASE WHETHER THE RIGHT IS
DEEMED TRANSFERRED TO PENN CENTRAL, AS IN FACT IT WAS, ON THE DATE OF
INCLUSION, OR WHETHER, CONSISTENT WITH THE LIQUIDATION HYPOTHESIS ON
WHICH THE PARTIES VALUED NEW HAVEN'S OTHER ASSETS, IT IS DEEMED TO HAVE
BEEN OFFERED FOR SALE TO A THIRD PARTY UPON NEW HAVEN'S CESSATION OF
OPERATIONS.  IN THE FORMER EVENT, THE ANALYSIS PERTINENT TO NEW HAVEN'S
CONTRACT RIGHTS APPLIES WITH EQUAL FORCE.  PENN CENTRAL HAS IN FACT
SUCCEEDED TO NEW HAVEN'S RIGHT OF ACCESS, BUT IT HAS ALSO SUCCEEDED TO
NEW HAVEN'S DEFICIT OPERATIONS.  CONVERSELY, NEW HAVEN HAS GIVEN UP A
RIGHT OF ENTRY IN EXCHANGE FOR RELIEF FROM THE OBLIGATION TO PROVIDE
TRAIN SERVICE AT THE STATION.  INDEED, TO THE EXTENT THAT THE EXPENSES
GENERATED BY NEW HAVEN'S USE OF THE TERMINAL EXCEEDED THE REVENUES
ATTRIBUTABLE TO THAT ACTIVITY, PENN CENTRAL HAS LOST AND NEW HAVEN
GAINED ON THE EXCHANGE.  /65/ 

THE SAME RESULT IS REACHED IF NEW HAVEN IS DEEMED TO HAVE GONE INTO
LIQUIDATION.  FOR THE BONDHOLDERS HAVE NEVER SHOWN THAT ANYONE WOULD
PAY A PENNY FOR THE RIGHT TO CARRY ON NEW HAVEN'S DEFICIT-RIDDEN
TERMINAL OPERATION.  IF NOBODY WOULD PAY A LIQUIDATING NEW HAVEN FOR
THE RIGHT TO LOSE MONEY, THE RIGHT IS, AGAIN, WORTHLESS.  THE
COMMISSION FOUND THAT THE ONLY POTENTIAL BUYER WOULD BE THE STATE OF
NEW YORK, MOVING TO PRESERVE THE COMMUTER SERVICE IN THE PUBLIC
INTEREST.  334 I.C.C.,AT 32.  WHETHER THE STATE WOULD HAVE TO PAY PENN
CENTRAL FOR THE USE OF PENN CENTRAL'S TRACKS AND ITS SHARE OF TERMINAL
EXPENSES IS NOT BEFORE US.  ON THE LIQUIDATION HYPOTHESIS, THE STATE
WOULD NOT HAVE TO PAY PENN CENTRAL FOR NEW HAVEN'S RIGHT OF ACCESS, FOR
PENN CENTRAL WOULD NOT OWN IT.  AND THE STATE'S PAYING NEW HAVEN
DEPENDS ON AT LEAST FOUR INDEPENDENT CONTINGENCIES:  WHETHER NEW
HAVEN'S RIGHT OF ACCESS WOULD SURVIVE LIQUIDATION; WHETHER THE RIGHT
WOULD EXCLUDE THE POWER OF CENTRAL TO BESTOW A SIMILAR ACCESS RIGHT ON
A THIRD PARTY WHILE NEW HAVEN'S OWN WENT UNUSED; WHETHER, UNDER THE
AGREEMENT WITH CENTRAL, THE RIGHT WOULD BE CAPABLE OF ASSIGNMENT; AND
WHETHER THE STATE, IF REQUIRED TO PAY NEW HAVEN ANYTHING TO ENTER THE
TERMINAL, WOULD CHOOSE INSTEAD TO OPERATE THE COMMUTER TRAINS ONLY TO
SUBWAY CONNECTIONS IN THE BRONX RATHER THAN ALL THE WAY INTO
MANHATTAN.  WE AGREE WITH THE COMMISSION AND THE REORGANIZATION COURT
THAT THESE IMPONDERABLES RENDER THE VALUE OF NEW HAVEN'S RIGHT OF
ACCESS SO SPECULATIVE AS TO DEFY REASONED ATTRIBUTION OF ANY VALUE TO
IT. 

2. THE BRONX FREIGHT YARDS.  ONE OF NEW HAVEN'S PRINCIPAL REAL
ESTATE HOLDINGS CONSITED OF TWO FREIGHT YARDS LOCATED ON SOME 160 ACRES
IN THE SOUTH BRONX, NEW YORK, BETWEEN THE EAST RIVER ON THE ONE SIDE
AND THE MAJOR DEEGAN EXPRESSWAY AND BRUCKNER BOULEVARD ON THE OTHER. 
THE HARLEM RIVER YARD OCCUPIES NEARLY 4,000,000 SQUARE FEET ACROSS THE
EAST RIVER FROM MANHATTAN AND QUEENS; IT HAS BEEN DESCRIBED BY A
QUALIFIED APPRAISER AS "A UNIQUE INDUSTRIAL FACILITY THAT COULD BE WELL
USED BY ANY HEAVY INDUSTRIAL CONCERN."  ABOUT A MILE NORTH OF THE
HARLEM RIVER YARD, AND CONNECTED TO IT BY THE EXISTING TRACKAGE OF NEW
HAVEN'S HARLEM DIVISION LINE, LIES THE OAK POINT YARD, CHARACTERIZED BY
THE APPRIASER AS "ONE OF THE MOST DESIRABLE INDUSTRIAL FACILITIES IN
NEW YORK CITY." 

TWO OTHER FACILITIES IN THE AREA ARE WORTHY OF NOTE.  THE FIRST IS
THE HUNTS POINT MARKET, LOCATED NORTHEAST OF THE OAK POINT YARD.  THE
MARKET IS A $100,000,000 MUNICIPAL INSTALLATION AND THE CENTRAL
DISTRIBUTION AREA FOR THE WHOLESALING OF PRODUCE FOR THE NEW YORK CITY
METROPOLITAN AREA.  IT LIES ON THE PROMONTORY FLANKED BY THE BRONX AND
EAST RIVERS, AND IS CONNECTED TO THE NEW HAVEN'S HARLEM DIVISION LINE
THROUGH A SPUR TRACK OWNED BY THE CITY.  THE MARKET IS THE LARGEST
RECEIVER OF RAIL TRAFFIC IN THE AREA, AND PLANS ARE UNDER WAY FOR
FURTHER EXPANSION.  FOURTH SUPPLEMENTAL REPORT, 334 I.C.C.,AT 43-44. 
THE SECOND FACILITY IS THE FORMER PORT MORRIS YARD OF PENN CENTRAL,
SITUATED MIDWAY BETWEEN THE HARLEM RIVER AND OAK POINT YARDS AND LYING
ATHWART THE HARLEM DIVISION TRACKAGE THAT CONNECTS THE TWO NEW HAVEN
YARDS.  PORT MORRIS IS LINKED BY A BRANCH LINE TO PENN CENTRAL'S HARLEM
BRANCH DIVISION, A PRINCIPAL ELEMENT IN THE PENN CENTRAL SYSTEM.  AN
INTERCHANGE TRACK RUNS FROM THE PORT MORRIS BRANCH LINE TO THE BORDER
OF THE OAK POINT YARD. 

BEFORE THE COMMISSION, THE PARTIES SUBMITTED FIVE DIFFERENT
ESTIMATES OF THE VALUE OF THE HARLEM RIVER AND OAK POINT YARDS.  THE
BONDHOLDERS OFFERED THE TESTIMONY OF AN APPRAISER WHO THOUGHT THE LAND
WOULD BRING $32,000,000 FOR RESIDENTIAL USE AND $26,000,000 FOR
INDUSTRIAL USE; THE NEW HAVEN TRUSTEES OFFERED THE TESTIMONY OF ANOTHER
APPRAISER WHO SUBMITTED TWO STUDIES SHOWING $22,650,000 AND
$18,090,990, BOTH FOR INDUSTRIAL USE; AND PENN CENTRAL, THAT OF A THIRD
APPRAISER WHO SET THE VALUE, AGAIN FOR INDUSTRIAL USE, AT $15,585,000. 
IN ITS SECOND SUPPLEMENTAL REPORT THE COMMISSION ACCEPTED THE LOWER OF
THE VALUES PROPOSED BY THE TRUSTEES' WITNESS-- $18,090,990.  331
I.C.C.,AT 668. 

ON THE FIRST ROUND OF JUDICIAL REVIEW THE REORGANIZATION COURT
THOUGHT THAT ON THE PRESENT RECORD "THERE WAS SUBSTANTIAL EVIDENCE TO
SUPPORT THE COMMISSION'S VALUATION AND NOT ENOUGH TO SHOW THAT IT WAS
UNFAIR OR INEQUITABLE," BUT CONCLUDED THAT A CLARIFICATION OF THE BASIS
OF THE COMMISSION'S VALUATION WAS DESIRABLE.  289 F.SUPP.,AT 464.  ON
THE REMAND, CONTROVERSY CENTERED ON THE ALTERNATIVE APPRAISALS OFFERED
BY THE TRUSTEES' WITNESS.  IT SOON BECAME EVIDENT THAT IN VALUING THE
FREIGHT YARDS THE COMMISSION HAD PURSUED THE LIQUIDATION HYPOTHESIS
WITH A VENGEANCE.  THE HIGHER APPRAISAL OF THE TRUSTEES' WITNESS HAD
RESTED ON THE PREMISE THAT UPON CESSATION OF NEW HAVEN OPERATIONS THE
BRONX YARDS WOULD BE AVAILABLE FOR CONTINUED INDUSTRIAL OCCUPANCY, WITH
EXISTING TRACKAGE AND ELECTRICAL FACILITIES LEFT IN PLACE.  THE
PRESENCE OF SUCH FACILITIES COMMANDED AT LEAST A 10% PREMIUM IN BRONX
REALTY VALUES.  THE WITNESS'  SECOND APPRAISAL HAD ASSUMED THAT UPON
LIQUIDATION NEW HAVEN WOULD STRIP THE YARDS OF THESE FACILITIES,
THEREBY DEPRESSING THE VALUE OF THE LAND AND INCURRING SUBSTANTIAL
COSTS OF REMOVAL.  334 I.C.C.,AT 42.  ADOPTION OF THAT ASSUMPTION
RESULTED IN THE LOSS OF OVER $4,000,000 IN VALUE.  /67/ 

IN ITS FOURTH SUPPLEMENTAL REPORT THE COMMISSION ADHERED TO ITS
ACCEPTANCE OF THE LOWER OF THE WITNESS' TWO ESTIMATES, REITERATING ITS
RELIANCE UPON THE LIQUIDATION PREMISE.  THAT PREMISE JUSTIFIED THE
ASSUMPTION THAT NEW HAVEN WOULD DISMANTLE THE YARDS ONCE THE REST OF
THE RAILROAD WAS SCRAPPED, SINCE WITH NO LINK TO PENN CENTRAL THE YARDS
WOULD HAVE NO VALUE EITHER AS OPERATING FACILITIES OR FOR INDUSTRIAL
USE WITH RAILROAD CONNECTIONS. 

BUT THE FACT OF THE MATTER WAS THAT EVEN ON THE LIQUIDATION
HYPOTHESIS THE NEW HAVEN YARDS DID NOT LACK RAIL CONNECTIONS TO PENN
CENTRAL.  PENN CENTRAL ALREADY HAD IN PLACE A BRANCH LINE RUNNING FROM
ITS PORT MORRIS YARD TO ITS HARLEM BRANCH DIVISION.  THAT PORT MORRIS
LINE, ALONG WITH THE INTERCHANGE TRACK RUNNING UP TO THE BORDER OF THE
OAK POINT YARD AND MEETING THE NEW HAVEN'S LINE AT THAT POINT, WOULD
HAVE CONTINUED IN PLACE EVEN UPON A LIQUIDATION OF NEW HAVEN.  THE
TRUSTEES' WITNESS ACKNOWLEDGED THAT IN ARRIVING AT THE LOWER OF HIS TWO
VALUES FOR THE NEW HAVEN YARDS, HE HAD BEEN UNAWARE OF THE PENN CENTRAL
LINK AT PORT MORRIS.  NEVERTHELESS, THE COMMISSION ATTRIBUTED NO
SIGNIFICANCE TO THE WITNESS' UNAWARENESS OF THE PORT MORRIS CONNECTION,
BECAUSE IT CONCLUDED THAT EVEN WITH THE EXISTING LINK TO THE NEW HAVEN
YARDS, IT WAS "EXTREMELY DOUBTFUL" THAT PENN CENTRAL WOULD CONTINUE TO
PROVIDE SERVICE INTO THE AREA AFTER A NEW HAVEN LIQUIDATION.  ONCE NEW
HAVEN VANISHED, THE COMMISSION REASONED, PENN CENTRAL WOULD BE UNDER NO
LEGAL OBLIGATION TO PERFORM SWITCHING SERVICE BEYOND ITS OWN PORT
MORRIS LINE OR TO EXTEND ITS LINE INTO THE FORMER NEW HAVEN YARDS.  AND
THE COMMISSION ACCEPTED THE TESTIMONY OF A PENN CENTRAL WITNESS THAT
THE COMPANY WOULD HAVE NO ECONOMIC INCENTIVE TO PROVIDE SERVICE,
BECAUSE OF THE UNPROFITABILITY OF THE PERISHABLE FREIGHT DESTINED FOR
THE HUNTS POINT MARKET, AS WELL AS THE ABSENCE OF NECESSARY TRACK
CLEARANCES AND YARD CLASSIFYING FACILITIES.  334 I.C.C.,AT 44-45. 

ON THE SECOND ROUND OF REVIEW THE REORGANIZATION COURT RULED THAT THE
COMMISSION HAD ERRED IN REJECTING THE HIGHER OF THE WITNESS' TWO
APPRAISALS.  "IT IS UNDISPUTED THAT THE PORT MORRIS BRANCH WAS AND IS
THERE AND OPERATING AND PENN CENTRAL HAS NOT BEEN AUTHORIZED TO ABANDON
IT."  304 F.SUPP.,AT 807.  THE COURT OVERRULED THE COMMISSION'S
DETERMINATION THAT PENN CENTRAL WOULD CEASE TO PROVIDE SERVICE NOT ONLY
TO THE INDUSTRIAL ENTERPRISES IN THE 160-ACRE AREA OF THE TWO YARDS,
BUT TO THE HUNTS POINT MARKET AS WELL.     "THE GREAT BULK OF PRODUCE
FOR FEEDING OF THE MILLIONS OF RESIDENTS OF METROPOLITAN NEW YORK IS
BROUGHT IN BY RAIL THROUGH THESE YARDS TO THIS MARKET AND DISTRIBUTION
POINT.  TO ASSUME THAT THE STATE AND CITY OF NEW YORK WOULD STAND IDLY
BY AND PERMIT THE LIFE LINE TO ITS HUGE AND COSTLY ENTERPRISE TO BE
CUT, JUST AS IT IS IN THE MIDST OF PLANNING ITS NECESSARY ENLARGEMENT,
BECAUSE IT WAS UNWILLING OR UNABLE EFFECTIVELY TO BRING PRESSURES TO
BEAR OR TAKE STEPS ON ITS OWN TO PRESERVE THE CONNECTION WITH PENN
CENTRAL IS ABSURD.  . . . "  304 F.SUPP.,AT 807-808. 

THE RULING OF THE REORGANIZATION COURT IS, AT THE LEAST, FREE FROM
THE ERROR THAT WOULD REQUIRE US TO OVERTURN ITS JUDGMENT ON THIS
MATTER.  AS THE COMMISSION'S OWN REPORT MAKES EVIDENT, THE AGENCY BASED
ITS STARTLING CONCLUSION THAT PENN CENTRAL COULD DENY SERVICE TO THE
AREA, NOT ON THE FACTS OF RECORD, BUT IN ADHERENCE TO THE UNTENABLE
ASSUMPTION THAT ON LIQUIDATION NEW HAVEN WOULD HAVE UPROOTED THE
VALUABLE TRACKAGE AND ELECTRICAL FACILITIES ALREADY IN PLACE. 
ACCORDING TO THE COMMISSION, "(THE RECORD DOES NOT SUPPORT ANY FINDING
OF SUBSTANTIAL NEED FOR PENN CENTRAL SERVICE THAT WOULD JUSTIFY THE
CONSTRUCTION BY THAT CARRIER OF THE TRACKAGE NECESSARY TO CONNECT
HARLEM RIVER AND OAK POINT YARDS AND THE LATTER YARD AND HUNTS POINT,
IF NEW) HAVEN) WERE TO BE LIQUIDATED."  334 I.C.C.,AT 47.  OF COURSE,
WE MAY ASSUME THAT PENN CENTRAL COULD NOT BE FORCED TO BUY LAND AND
BUILD TRACK TO PROVIDE SERVICE INTO AREAS, NONCONTIGUOUS TO ITS RAIL
SYSTEM, TO WHICH IT DID NOT HOLD ITSELF OUT AS A COMMON CARRIER.  BUT
IT IS A FAR CRY FROM THAT PROPOSITION TO THE STATEMENT THAT A COMMON
CARRIER COULD DENY SERVICE TO INDUSTRIAL AND PUBLIC ACTIVITIES SIMPLY
BECAUSE OWNERSHIP OF ADJOINING TRACKAGE HAD CHANGED HANDS.  /68/  THE
RECORD FACTS ARE THAT THE TRACKAGE THE COMMISSION SAID PENN CENTRAL
WOULD HAVE TO CONSTRUCT IS ALREADY IN PLACE, CONNECTING THE TWO YARDS
AND THE MARKET.  /69/  THE COMMISSION NONETHELESS CONTINUED TO
PRESUPPOSE THE REMOVAL OF THE NEW HAVEN'S RAIL FACILITIES.  "ON THIS
RECORD," THE COMMISSION REITERATED, "AND THE ASSUMPTION OF NEW)
HAVEN)'S LIQUIDATION AND THE DISMANTLING OF ITS SYSTEM, PENN CENTRAL
WOULD NOT SERVE, AND COULD NOT BE COMPELLED TO SERVE, THE HARLEM RIVER
OR OAK POINT INDUSTRIES, OR THE HUNTS POINT MARKET."  334 I.C.C.,AT
47.  THERE IS NOT A SHRED OF RECORD EVIDENCE TO SUPPORT THE
COMMISSION'S ASSUMPTION AS APPLIED TO THE NEW HAVEN YARDS.  IT NOT
RATIONAL TO SUPPOSE THAT THE MANAGERS OF THE HYPOTHETICAL LIQUIDATION
SALE, DEVOTED TO OBTAINING THE HIGHEST POSSIBLE PRICE FOR THE ASSETS OF
THE DEBTOR, WOULD HAVE IGNORED THE BEST USE OF THE YARD FACILITIES AND
STRIPPED THEM OF MORE THAN $4,000,000 IN VALUE.  /70/ 

3.  THE ADDED DEDUCTIONS.  ON THE REMAND THE COMMISSION RECALCULATED
THE LIQUIDATION VALUE OF THE NEW HAVEN, AS DIRECTED BY THE
REORGANIZATION COURT, AND ARRIVED AT A NEW SUM OF $162,700,000.  "A
PROPERTY VALUE OF THIS SORT INHERES IN THE ASSETS," THE COMMISSION
SAID, "IF WE ASSUME THAT THE RAILROAD MAY IMMEDIATELY SHUT DOWN AND
BEGIN A 6-YEAR PROGRAM OF SELLING OFF THE ROAD PARCEL-BY-PARCEL, AND
VIRTUALLY TIE-BY-TIE."  334 I.C.C.,AT 53.  BUT THE COMMISSION DECLINED
TO APPROVE THE NEW FIGURE AS THE PROPER LIQUIDATION VALUE OF THE
DEBTOR. 

"THE LIQUIDATION VALUE THAT RESULTS IN THIS REOPENED PROCEEDING
EXCEEDS THE AGREED PRICE (OF $125,000,000), OBLIGING US TO MAKE A NEW
DETERMINATION AS TO WHETHER THE PRICE RESULTING FROM SUCH A VALUATION
IS FAIR. 

     "THE ESTABLISHMENT OF LIQUIDATION VALUE AS A PRICING FLOOR ON

  THIS RECORD MUST ASSUME THAT THE NEW) HAVEN) MAY BE SHUT DOWN AT

  ONCE AND BE LIQUIDATED IN PARCELS.  SUCH A PRICING THEORY ASSUMES

  THAT THE PUBLIC MAY BE DENIED AN OPPORTUNITY TO BE HEARD.  IT IS

  WHOLLY INCONSISTENT WITH THE REQUIREMENT WE HAVE IMPOSED ON PENN

  CENTRAL TO ABSORB THE NEW) HAVEN), WHICH REQUIREMENTS RESTS

  ENTIRELY UPON THE PUBLIC'S NEED FOR A CONTINUING NEW) HAVEN). 

  ANY ASSUMPTION THAT NEW) HAVEN) MAY BE SHUT DOWN AND BROKEN UP

  MUST NECESSARILY PERMIT THE CONCLUSION THAT PENN CENTRAL MAY BE

  RELIEVED OF ITS INCLUSION OBLIGATION.  IT IS INEQUITABLE TO

CONCEIVE AT THE SAME TIME BOTH A RIGHT IN THE BONDHOLDERS TO

  BREAK UP THE NEW) HAVEN) AND AN OBLIGATION ON PENN CENTRAL TO

  KEEP IT GOING.  THE DEMANDS OF EQUITY ARE NO MORE SATISFIED BY

  CONCEIVING THAT THE BONDHOLDERS HAVE A CONSTITUTIONAL RIGHT TO

  SHUT DOWN THE NEW) HAVEN) WHICH IS SUPERIOR TO THE PUBLIC'S RIGHT

  TO KEEP IT GOING. 

"THE FOREGOING LIQUIDATION VALUE ASSUMES THAT THIS COMMISSION

  HAS NO FUNCTION UNDER THE INTERSTATE COMMERCE ACT TO DECIDE

  WHETHER PUBLIC CONVENIENCE AND NECESSITY PERMIT THE ABANDONMENT

  OF NEW) HAVEN)'S ENTIRE LINE OR PORTIONS OF IT.  IN VIEW OF OUR

  OFTEN REPEATED FINDINGS THAT THERE IS A PUBLIC NEED FOR THE

  SERVICES OF THIS RAILROAD, THERE IS NO WARRANT FOR ASSUMING THAT

  THE CREDITORS MAY NOW BREAK UP THE RAILROAD OR DEVOTE THE

  PROPERTIES TO ANOTHER USE.  THE ESTATE IS NOT RELIEVED OF ITS

  OBLIGATION TO SERVE THE PUBLIC.  A PRICE THAT IS PREMISED ON

  OUTRIGHT REJECTION OF THAT OBLIGATION IS INEQUITABLE AND AWARDS

  THE ESTATE A WINDFALL THAT IS NO SUPPORTED BY ANY RECORD

  EVIDENCE."  334 I.C.C.,AT 54-55. 

ON THE BASIS OF THIS REASONING, THE COMMISSION THEN PROCEEDED TO
TAKE INTO ACCOUNT "OTHER PRICING CONSIDERATIONS"-- COSTS OF LIQUIDATION
IT HAD NOT REACHED IN ITS EARLIER REPORT BECAUSE OF ITS CONCLUSION THAT
THE $125,000,000 PRICE ARRIVED AT BY THE PARTIES WAS PROPER UNDER THE
INTERSTATE COMMERCE AND BANKRUPTCY ACTS. 

"THE ALLEGED RIGHT TO LIQUIDATION VALUES DERIVES FROM AN ALLEGED
RIGHT TO ABANDON; AND THERE ARE RECOGNIZED LIMITATIONS ON THE RIGHT TO
ABANDON THAT IN THEMSELVES LIMIT THE CREDITORS'  ENTITLEMENT TO THE
LIQUIDATION VALUE WE HAVE COMPUTED UNDER THE COURT'S INSTRUCTIONS. 
UNDER SECTION 1(18) OF THE INTERSTATE COMMERCE ACT, THE COMMISSION IS
EMPOWERED TO IMPOSE REASONABLE LIMITATIONS ON THE ABANDONMENT RIGHT." 
334 I.C.C.,AT 57. 

THE COMMISSION'S NEW "PRICING CONSIDERATIONS" CONSISTED OF TWO
ELEMENTS:  A ONE-YEAR DELAY THE NEW HAVEN WOULD HAVE INCURRED IN
SECURING THE APPROVAL OF THE COMMISSION AND THE COURTS TO ABANDON TRAIN
OPERATIONS; AND A BULK-SALE DISCOUNT THAT A PURCHASER OF ALL THE
DEBTOR'S ASSETS, TO WHOM THE COMMISSION COULD ORDER THE ROAD TO SELL,
WOULD HAVE COMMANDED.  TOGETHER THE ADDED DEDUCTIONS AMOUNTED TO
$22,081,000. 

(A) THE ONE-YEAR DELAY.  THE COMMISSION FOUND THAT AN APPLICATION
FOR A CERTIFICATE OF ABANDONMENT, AS REQUIRED BY SEC. 1(18) OF THE
INTERSTATE COMMERCE ACT, WOULD HAVE PRECIPITATED A LENGTHY PROCESS OF
ADMINISTRATIVE ACTION AND JUDUCIAL REVIEW RESULTING IN AT LEAST A ONE
YEAR DELAY IN THE COMMENCEMENT OF ACTUAL LIQUIDATION OPERATIONS.  THE
COMMISSION ASSUMED THAT THE YEAR'S DELAY WOULD HAVE OCCASIONED A FREEZE
ON LIQUIDATION ACTIVITY, FOLLOWING WHICH THE SELL-OFF WOULD HAVE
PROCEEDED AS PROJECTED IN THE SECOND SUPPLEMENTAL REPORT.  THE
ABANDONMENT DELAY, THE COMMISSION FOUND, WOULD HAVE ADDED COSTS OF
$4,940,000 IN PRESERVING THE ASSETS OF THE ESTATE, $2,500,000 IN REAL
ESTATE TAXES, AND $7,946,000 IN A DISCOUNT OF THE SALE RECEIPTS BACK TO
PRESENT WORTH. 

ON REVIEW THE REORGANIZATION COURT RJECTED THE DELAY CONCEPT, RULING
THAT THE ADDED DEDUCTION VIOLATED THE LIQUIDATION HYPOTHESIS UPON WHICH
THE DEBTOR'S ASSETS HAD BEEN VALUED.  NEITHER THE PARTIES NOR THE
COMMISSION HAD PREVIOUSLY POSTULATED THE DEDUCTION NOW IMPOSED, BECAUSE
THE LIQUIDATION HYPOTHESIS ITSELF HAD PRESUPPOSED A LAWFUL ABANDONMENT
OF SERVICE.  304 F.SUPP.,AT 798.  THAT PRESUPPOSITION WAS ROOTED IN THE
HARD FACT THAT FOR MORE THAN THREE YEARS PRIOR TO DECEMBER 31, 1966,
THE NEW HAVEN HAD BEEN KEPT ALIVE, DESPITE ITS HOPELESS FINANCIAL
CONDITION, SOLELY IN THE NAME OF THE PUBLIC INTEREST AND IN
ANTICIPATION OF INCLUSION IN PENN CENTRAL. 

     "BY LATE 1963 IT WAS CLEAR TO THE TRUSTEES OF THE NEW HAVEN
AND

  TO THE REORGANIZATION COURT THAT ONLY TWO COURSES WERE OPEN:  THE

  TRUSTEES MUST PRESS TO ACCOMPLISH THE INCLUSION IN A PENN CENTRAL

  MERGER OR THEY MUST PRESS FOR LIQUIDATION.  THE FORMER WAS

  OBVIOUSLY IN THE PUBLIC INTEREST AND THE LATTER WAS NOT.  THE

  COURSE OF INCLUSION WAS FOLLOWED; BUT BECAUSE THE MERGER AND THE

  REORGANIZATION PROCEEDINGS STRETCHED OUT FAR BEYOND WHAT WAS

ORIGINALLY FORECAST, THE 'INTERIM' BECAME SEVEN AND A HALF YEARS;

  AND 'LOSSES REASONABLY INCIDENT TO WORKING OUT THE SOLUTION MOST

  CONSISTENT WITH THE PUBLIC INTEREST' ERODED THE DEBTOR'S ESTATE

  IN EXCESS OF $60 MILLION. 

  *          *          *          * 

     "LIKE LABAN OF OLD, THE COMMISSION WOULD NOW REQUIRE FURTHER

  SERVITUDE OF THE DEBTOR-- IN THIS CASE THE CREDITORS.  BUT THE

DUTY OF THE DEBTOR'S CREDITORS TO SUFFER LOSSES FOR AN INTERIM

  PERIOD HAS ALREADY BEEN FULFILLED AND THE PUBLIC INTEREST HAS

  ALREADY BEEN SERVED TO THE EXTENT THAT IN FAIRNESS AND EQUITY THE

  PUBLIC HAD ANY RIGHT TO DEMAND."  304 F.SUPP.,AT 800.  (FOOTNOTE

  OMITTED.) 

THE COMMISSION AND PENN CENTRAL TAKE ISSUE WITH THE REORGANIZATION
COURT'S DISALLOWANCE OF THE DEDUCTION FOR DELAY.  THE DISPUTE BETWEEN
THEM AND THE BONDHOLDERS IS NOT, HOWEVER, BROAD IN CONCEPT.  IT DOES
NOT DRAW INTO QUESTION THE RIGHT OF THE COMMISSION TO INSIST THAT NEW
HAVEN OBTAIN PERMISSION TO ABANDON ITS OPERATIONS:  NO ONE HERE
QUARRELS WITH THE PROPOSITION THAT IN THE EVENT OF A LIQUIDATION, NEW
HAVEN WOULD HAVE BEEN OBLIGED TO OBTAIN A CERTIFICATE FROM THE
COMMISSION PURSUANT TO SEC. 1(18) OF THE INTERSTATE COMMERCE ACT.  THE
PARTIES AGREE THAT SINCE A DELAY OCCASIONED BY ABANDONMENT PROCEEDINGS
BEFORE THE COMMISSION, FOLLOWED BY JUDICIAL REVIEW, INHERES IN THE
LIQUIDATION PROCESS, THE COMMISSION MAY EXERCISE ITS EXPERTISE IN
GAUGING THE EXTENT AND EXPENSE OF SUCH A DELAY, AND PENN CENTRAL NEED
NOT PAY FOR THE CONSEQUENT DIMINUTION IN THE VALUE OF THE ASSETS OF THE
DEBTOR.  THE IDSPUTE IS, RATHER, A NARROW ONE.  IT IS SIMPLY WHETHER,
IN THE CIRCUMSTANCES OF THIS CASE, THE VALUATION INITIALLY ARRIVED AT
BY THE COMMISSION ALREADY PRESUPPOSED THAT THE DEBTOR HAD A CERTIFICATE
OF ABANDONMENT IN HAND, SO THAT ASSIGNMENT OF A COST ATTIRBUTABLE TO
THAT FACTOR AMOUNTS TO AN UNWARRANTED DOUBLE DEDUCTION. 

BEFORE THIS COURT THE COMMISSION AND PENN CENTRAL URGE THE VIEW THAT
UNTIL THE REMAND THE COMMISSION HAD NOT TAKEN THE DELAY FACTOR INTO
ACCOUNT.  THEY JUSTIFY THE DEDUCTION ON THE SECOND ROUND AS A
DEVELOPMENT OF THE GOVERNING LIQUIDATION HYPOTHESIS ADOPTED ON THE
FIRST.  ONCE WE ENTER THE WORLD OF A LIQUIDATION THAT NEVER OCCURRED,
THEY SAY, THE COMMISSION IS MORE COMPETENT THAN THE COURTS TO PROJECT
INCIDENTAL COSTS AND DELAYS.  ON THE REMAND THE COMMISSION MERELY
REFINED THE LIQUIDATION APPROACH TO REFLECT ADDED EXPENSES NOT
INITIALLY CONSIDERED BECAUSE OF THE FAIRNESS OF THE PRICE ARRIVED AT BY
THE PARTIES.  THE NEW PRICE ORDERED BY THE COURTS COMPELLED RE
EXAMINATION OF THE ELEMENTS OF LIQUIDATION, OF WHICH ABANDONMENT DELAY
IS SURELY ONE.  AND WHEN IT COMES TO PREDICTING THE LIKELIHOOD OF DELAY
IN PASSING ON AN APPLICATION FOR A CERTIFICATE OF ABANDONMENT, THE
COMMISSION IS, AS PENN CENTRAL PUTS IT, "A UNIQUELY QUALIFIED FINDER OF
FACT.  . . . "  /71/ 

AT ONCE THE "REFINEMENT" RATIONALE CONFRONTS AN IMPOSING OBSTACLE
RAISED BY THE COMMISSION'S OWN SECOND SUPPLEMENTAL REPORT.  THAT REPORT
MAKES CLEAR THAT THE COMMISSION HAD THE ELEMENT OF DELAY BEFORE IT IN
MAKING ITS ORIGINAL VALUATION, BUT DECLINED TO APPLY ANY DEDUCTION ON
ITS ACCOUNT.  THE COMMISSION CONSIDERED-- AND REJECTED-- PENN CENTRAL'S
REQUEST "THAT AN ALLOWANCE BE MADE TO THE EARLIEST DATE AT WHICH A
LIQUIDATION COULD REASONABLY BE ANTICIPATED FOR THE CONSTANT DIMINUTION
OF NEW) HAVEN)'S ASSETS."  331 I.C.C.,AT 698.  THAT REJECTION
NECESSARILY IMPLIED THAT THE COMMISSION HAD RECOGNIZED THE COST
ATTRIBUTABLE TO THE DELAY OCCASIONED BY AN ABANDONMENT PROCEEDING, BUT
DETERMINED NOT TO WEIGH IT IN THE BALANCE.  THUS WE DEAL, NOT WITH A
DELAY FACTOR BROUGHT TO LIGHT FOR THE FIRST TIME ON THE SECOND ROUND,
BUT WITH ONE TAKEN INTO ACCOUNT NOW EVEN THOUGH DELIBERATELY EXCLUDED
BEFORE.  JUSTIFICATION, IF ANY THERE BE, MUST BEGIN WITH THE
REALIZATION THAT THE COMMISSION CHANGED ITS MIND IN MIDSTREAM. 

THE REORGANIZATION COURT REJECTED THE COMMISSION'S CONCLUSION THAT
THE VALUATION DATE SELECTED IN THE SECOND SUPPLEMENTAL REPORT--
DECEMBER 31, 1966-- REPRESENTED THE DATE ON WHICH NEW HAVEN WOULD HAVE
SOUGHT A CERTIFICATE OF ABANDONMENT RATHER THAN THE DATE ON WHICH THE
RAILROAD WOULD HAVE COMMENCED ITS SIX-YEAR SALE.  IN DOING SO, THE
COURT RELIED ON MORE THAN THE COMMISSION'S SHIFT IN POSITION BETWEEN
ITS SECOND AND FOURTH REPORTS.  THE COURT RESTED ON ITS EXPRESS FINDING
OF FACT THAT "BUT FOR THE ADOPTION BY THE TRUSTEES OF A COURSE TO SERVE
THE PUBLIC INTEREST, ABANDONMENT PROCEEDINGS COULD AND WOULD HAVE BEEN
COMMENCED IN LATE 1963 AND LIQUIDATION WOULD HAVE BEEN STARTED,
CERTAINLY BY THE VALUATION DATE OF DECEMBER 31, 1966."  304 F.SUPP.,AT
801.  THAT FINDING COMES TO US FROM THE FEDERAL JUDGE WHO HAS PRESIDED
OVER THE SECOND NEW HAVEN REORGANIZATION SINCE ITS INCEPTION.  "IN VIEW
OF THE DISTRICT JUDGE'S FAMILIARITY WITH THE REORGANIZATION, THIS
FINDING HAS ESPECIAL WEIGHT WITH US."  RECONSTRUCTION FINANCE CORP. V.
DENVER & R.G.W.R. CO., 328 U.S. 495, 533.  NOT ONLY ARE WE UNABLE TO
SAY THE FINDING IS ERRONEOUS; WE DO NOT SEE HOW THE RECORD OF THESE
PROCEEDINGS PERMITS ANY OTHER CONCLUSION. 

INDEED, THE COMMISSION AND PENN CENTRAL DO NOT CHALLENGE THAT
CONCLUSION.  INSTEAD, THEY SEEK SUPPORT FOR THE DELAY DEDUCTION BY
URGING THAT IF CONFRONTED WITH AN ABANDONMENT APPLICATION, THE
COMMISSION WOULD HAVE HAD TO "HEAR THE COMMUNITIES THAT WOULD BE
AFFECTED BY THE ABANDONMENT.  IF THERE IS HOPE OF A PUBLIC TAKEOVER OF
SEGMENTS, WE MUST ALLOW TIME FOR THE STATES AND COMMUNITIES TO PRESENT
THEIR PLANS."  334 I.C.C.,AT 58.  BUT APART FROM THE FACT THAT THIS
COURT ITSELF ONCE CHARACTERIZED THE NOTION THAT THE AFFECTED STATES OR
THE FEDERAL GOVERNMENT MIGHT TAKE OVER THE ROAD AND ITS OPERATIONS AS
"SHEER SPECULATION," PENN-CENTRAL MERGER CASES, 389 U.S.,AT 507, THE
REORGANIZATION COURT SPECIFICALLY REJECTED THE COMMISSION'S ARGUMENT. 
"DURING SEVEN AND ONE-HALF YEARS, THE FEDERAL GOVERNMENT, THE STATES,
THE COMMUNITIES AND THE PUBLIC IN GENERAL WERE FULLY INFORMED BY THE
TRUSTEES OF THE RAILROAD AS TO THE INABILITY OF THE NEW HAVEN TO
SURVIVE AS AN INDEPENDENT RAILROAD.  AND, APART FROM SEEKING INCLUSION
IN A MERGED PENN CENTRAL, THE TRUSTEES WERE ENGAGING IN A HOLDING
OPERATION TO AFFORD THE PUBLIC BODIES, AS THE REAL GUARDIANS OF THE
PUBLIC INTEREST, THE OPPORTUNITY TO ACT-- TO TAKE OVER OR ADOPT
MEASURES TO PRESERVE THE NEW HAVEN TRANSPORTATION SYSTEM.  RESPONSE TO
THIS WAS PARTIAL TAX ASSISTANCE AND, IN THE LATTER HALF OF THE PERIOD,
GRANTS WHICH COVERED ABOUT 1/3 OF THE ANNUAL PASSENGER LOSSES.  . . .
OTHERWISE NOTHING HAS COME TO THE ATTENTION OF THIS COURT, TO INDICATE
ANYTHING MORE THAN A HIGHLY SPECULATIVE PROSPECT, THAT ANY OR ALL OF
THE STATES CONCERNED OR THEIR MUNICIPALITIES HAD THE SLIGHTEST INTEREST
IN TAKING OVER AND OPERATING THE NEW HAVEN OR ANY SEGMENT OF IT. 

     "IN SPITE OF FULL AWARENESS OF THE SITUATION OF THE BANKRUPT

  LINE AND WITH NOTHING TO PREVENT THEIR DOING SO, NO STANDBY

  LEGISLATION, FOR USE IF INCLUSION OF THE NEW HAVEN BY PENN

  CENTRAL FELL THROUGH, WAS EVER ENACTED OR SOUGHT TO BE PASSED IN

  SEVEN AND ONE-HALF YEARS BY THE FEDERAL GOVERNMENT OR BY ANY OF

  THE STATES FOR THE TAKE OVER AND OPERATION OF THE NEW HAVEN

FREIGHT AND PASSENGER SYSTEM OR A SEGMENT OF IT (EXCEPT FOR THE

  WEST-END AND THE BOSTON COMMUTER SERVICES); NOR WAS ANY PLAN EVER

  FILED BY THE GOVERNMENTAL BODIES INCORPORATING SUCH TAKE OVER AND

  OPERATION."  304 F.SUPP.,AT 800-801.  /72/ 

WE THINK THE REORGANIZATION COURT WAS ENTIRELY CORRECT IN CONCLUDING
THAT: 

     "THE POLICY OF IMPOSING AN INTERIM BURDEN OF LOSSES, THROUGH

  ITS DEFICIT OPERATION, ON A RAILROAD IN REORGANIZATION IS TO

  AFFORD A REASONABLE OPPORTUNITY TO THE RESPONSIBLE AGENCIES TO

  ARRANGE THE CONTINUATION OF THE RAILROAD'S OPERATION, BUT THE LAW

DOES NOT REQUIRE THE FURNISHING OF TWO OR THREE OR FOUR

OPPORTUNITIES.  THE DUTY WAS MORE THAN AMPLY FULFILLED BY THE NEW

  HAVEN.  THE PUBLIC INTEREST HAS HAD ONE HUGE BITE OF THE APPLE;

  IT IS NOT ENTITLED TO ANOTHER."  304 F.SUPP.,AT 801. 

IT IS ARGUED THAT THE COMMISSION NONETHELESS SHOULD BE PERMITTED TO
TAX NEW HAVEN WITH THE COST OF A ONE-YEAR DELAY BECAUSE IN FACT THE
DEBTOR SOUGHT NO ABANDONMENT CERTIFICATE FROM THE COMMISSION.  THE
COMMISSION AND PENN CENTRAL ATTRIBUTE THIS FAILURE TO NEW HAVEN'S SELF
INTEREST.  "THE FACT IS," THE COMMISSION SAID, "THAT BOTH THE CREDITORS
AND THE TRUSTEES EXERCISED OPTIONS, ASSUMING THE RISKS INVOLVED
THEREIN, AND THE BONDHOLDERS MAY NOT NOW BE HEARD TO ASCRIBE TO SOMEONE
ELSE THE RESPONSIBILITY FOR THE SELECTION OF THEIR COURSE OF ACTION, OR
INACTION."  334 I.C.C.,AT 58.  (FOOTNOTE OMITTED.)  BUT THE CONTINUED
OPERATION OF THE NEW HAVEN AS A RAILROAD DEPLETED THE ESTATE BY AT
LEAST $60,000,000.  304 F.SUPP.,AT 800.  WE FAIL TO SEE HOW THE SELF
INTEREST OF EITHER THE ESTATE OR ITS CREDITORS WAS BETTERED BY THAT
OPERATION. 

NOR IS THERE ANY SUBSTANCE TO THE CONTENTION THAT BY FAILING TO
PRESS FOR IMMEDIATE LIQUIDATION OF THE DEBTOR, THE BONDHOLDERS SOMEHOW
WAIVED THEIR RIGHT TO OBJECT TO THE IMPOSITION OF THE DEDUCTION FOR
DELAY.  THE RECORD THAT SHOWS THE PRESERVATION OF NEW HAVEN IN THE
PUBLIC INTEREST LONG AFTER IT HAD CEASED TO BE VIABLE AS AN INDEPENDENT
ENTERPRISE DEMONSTRATES AT THE MOST THAT THE BONDHOLDERS HAD RESIGNED
THEMSELVES TO BEARING THE COSTS OF INTERIM OPERATIONS PENDING INCLUSION
IN PENN CENTRAL.  IT CONTAINS NO SUPPORT FOR THE PROPOSITION THAT THEY
CONSENTED TO THE IMPOSITION OF MORE THAN $15,000,000 IN HYPOTHETICAL
COSTS ON TOP OF THE TENS OF MILLIONS IN ACTUAL COSTS THEY WERE FORCED
TO BEAR.  AS THE REORGANIZATION COURT PUT IT, "(SUCH A SECOND ROUND OF
LOSS SUPERIMPOSED ON THE FIRST, LIKE PELION ON OSSA, IS AS UNFAIR AND
INEQUITABLE AS CAN BE IMAGINED.  . . . "  304 F.SUPP.,AT 801.  IT
CANNOT BE SUSTAINED UNDER ANY CONSTRUCTION OF THE BANKRUPTCY ACT. 
/73/ 

(B) THE BULK-SALE DISCOUNT.  NEW HAVEN'S LAND HOLDINGS CONSISTED OF
OVER 25,000 ACRES LOCATED ALONG ITS RIGHTS-OF-WAY IN FOUR STATES.  IN
ITS SECOND SUPPLEMENTAL REPORT THE COMMISSION ACCEPTED THE NEW HAVEN
TRUSTEES' APPRAISAL OF THE REALTY.  THE NEW HAVEN ANALYSIS WAS PREPARED
BY THE COMPANY'S GENERAL REAL ESTATE AGENT, WHO RELIED IN SOME
INSTANCES ON THE STUDIES OF OUTSIDE APPRAISERS.  THE AGENT DREW ON A
FUND OF ACTION EXPERIENCE, FOR THE NEW HAVEN HAD LONG HAD A REAL ESTATE
DEPARTMENT ENGAGED IN THE DISPOSITION OF NONOPERATING PROPERTIES.  FROM
THE INCEPTION OF THE NEW HAVEN TRUSTEESHIP THROUGH NOVEMBER 1966, THAT
DEPARTMENT HAD COMPLETED 853 SEPARATE REALTY SALES FOR A GROSS
CONSIDERATION OF SOME $13,900,000.  THE COMMISSION FOUND THAT THE LARGE
VOLUME OF PAST SALES PROVIDED A "FIRM BASE" FOR THE NEW HAVEN
ESTIMATE.  331 I.C.C.,AT 667. 

THE NEW HAVEN AGENT ASSUMED THAT THE COMPANY WOULD SELL OFF ITS LOTS
IN NORMAL-SIZED PARCELS.  HE GAVE SPECIFIC CONSIDERATION TO EACH PART
OF THE RAILROAD'S PROPERTY AND REACHED HIS VALUES ON A ZONE-BY-ZONE
BASIS.  HE BASED HIS ESTIMATES OF FAIR MARKET VALUE ON HIS EXPERT
JUDGMENT, SALES IN THE AREA, EXISTING TAX VALUATIONS, AND THE
ADAPTABILITY OF THE LAND TO NONRAILROAD USE.  HE DISCOUNTED BY 50%
WHENEVER THE NEW HAVEN'S RECORDS INDICATED QUESTIONABLE TITLE; ON THE
SIX-YEAR LIQUIDATION HYPOTHESIS, HE DEDUCTED $15,971,000 AS THE COST OF
OPERATING THE NEW HAVEN REALTY DEPARTMENT; AND ON THE FURTHER
ASSUMPTION THAT THE DEBTOR WOULD HAVE TO SELL SOME OF THE PROPERTY
DURING THE FINAL YEAR AT VASTLY REDUCED PRICES, HE MADE A FURTHER
DEDUCTION OF $8,178,000. 

ON THE REMAND, THE COMMISSION ORDERED A FURTHER DEDUCTION FROM THE
LIQUIDATION VALUE OF THE ESTATE, BASED ON A HYPOTHETICAL SALE IN BULK
OF ALL THE NEW HAVEN'S LAND ASSETS. 

"THE LIQUIDATION VALUE URGED BY THE CREDITORS ASSUMES NOT ONLY THE
IMMEDIATE RIGHT TO ABANDON, . . . BUT ALSO THE RIGHT TO BREAK UP THE
RAILROAD AND SELL THE PARCELS FOR THEIR HIGHEST AND BEST PRICE.  WE
THINK SUCH A RIGHT MAY BE RESTRICTED WHEN A BUYER FOR THE ENTIRE BULK
OF THE NEW) HAVEN) PROPERTIES APPEARS WHO WILL CONTINUE THE OPERATION
OF NEEDED SERVICES."  334 I.C.C.,AT 60.  (FOOTNOTE OMITTED.)  THE
COMMISSION CALCULATED THE DEDUCTION ON THE PREMISE THAT "(THE BULK-SALE
DISCOUNT MERELY REFLECTS A MARKET APPRAISAL OF THE RISKS THAT THE
ESTATE AVOIDS, AND THE BULK BUYER ASSUMES."  ID., AT 61.  THE
COMMISSION THEN CREDITED THE EVIDENCE THAT PENN CENTRAL HAD PRESENTED
THROUGH A REALTY EXPERT WITH RESPECT TO A BULK SALE OF THE NEW HAVEN
LAND PROPERTIES.  THE EXPERT TESTIFIED TO THE PREMIUM TO BE CHARGED BY
A "SINGLE PURCHASER OF PROPERTY WHO WOULD, IN TURN, SELL OFF THE
PROPERTY PROBABLY TO MANY USERS AND WHO WOULD OBTAIN HIS PROFIT BY
REASON OF ITS PURCHASE AND RESALE."  ON THE BASIS OF THIS TESTIMONY,
THE COMMISSION FOUND THAT A BULK BUYER WOULD COMMAND AT LEAST A 10.5%
RETURN ON HIS INVESTMENT, CALCULATED AS THE SUM OF A 75% BORROWING AT
9% AND A 25% SELF-FINANCING AT AN INTERNAL CHARGE OF 15%, AND THAT SUCH
AN INVESTMENT RATE REQUIRED AN ADDITIONAL 4.5% DISCOUNT OF THE NEW
HAVEN LAND VALUES OVER AND ABOVE THE 6% BY WHICH THEY HAD ALREADY BEEN
REDUCED.  THIS BULK-SALE DISCOUNT RESULTED IN A FURTHER DIMINUTION OF
$6,695,000 IN THE VALUATION OF THE NEW HAVEN ASSETS.  334 I.C.C.,AT 61
62. 

ON THE SECOND ROUND OF REVIEW THE REORGANIZATION COURT REJECTED THE
BULK-SALE DEDUCTION AS "IMPROPER AND WITHOUT SUPPORT IN LAW OR
REASON."  304 F.SUPP.,AT 805. 

"VALUE, UNDER THE CIRCUMSTANCES OF THIS CASE, CAN ONLY BE ARRIVED AT
THROUGH THE DISMANTLING OF THE TRANSPORTATION PLANT AND A PIECE BY
PIECE SALE OF THE PROPERTIES.  IT IS CLEAR FROM THE RECORD THAT A
MARKET EXISTED FOR THE DISPOSITION OF THE PROPERTIES ON THIS BASIS. 
THEIR VALUE IS THE BEST PRICE THE MARKET PLACE WILL GIVE THE SELLER,
LESS THE COSTS AND EXPENSES RELEVANT TO THE SALE.  . . . IT MAKES NO
DIFFERENCE WHETHER THE PURCHASER WANTS TO USE THE PROPERTY AS IS, OR TO
IMPROVE AND DEVELOP IT.  THE QUESTION IS HOW MUCH WILL THE MARKET PLACE
GIVE FOR A PARTICULAR ITEM OF PROPERTY."  IBID. THE COURT ANSWERED THE
ARGUMENT THAT THE DISCOUNT MERELY REFLECTED THE RISK OF NONSALE THAT
THE SELLER TRANSFERRED TO THE BULK BUYER BY POINTING TO THE
COMMISSION'S PRIOR DEDUCTION OF OVER $8,000,000 FOR THAT PURPOSE. 
MOREOVER, THE DEDUCTION VIOLATED THE REQUIREMENT THAT THE SALE PRICE
MEET THE "FAIR UPSET" MINIMUM IMPOSED BY SEC. 77(B)(5) OF THE
BANKRUPTCY ACT.  "THAT LOWEST PRICE IS WHAT THE MARKET WOULD PAY, WHICH
IS IMPLICIT IN THE STANDARD USED HERE, I.E., FAIR LIQUIDATION VALUE. 
NEITHER A TRUSTEE NOR AN EQUITY RECEIVER COULD, WITH THE COURT'S
APPROVAL, SELL FOR LESS."  305 F.SUPP.,AT 806. 

PENN CENTRAL NOW PROTESTS THAT THE REORGANIZATION COURT HAS ERRED IN
REJECTING THE BULK-SALE DISCOUNT.  IT SAYS ITS EXPERT WITNESS
DUPLICATED NO DISCOUNTS PREVIOUSLY TAKEN; HE PROCEEDED ON THE BASIS OF
ALL PREVIOUS DEDUCTIONS.  IN ADDITION, IT IS ARGUED, HIS ANALYSIS TOOK
INTO ACCOUNT THE PROBLEM OF MARKET ABSORPTION CAUSED BY THE MASS
MARKETING OF SOME 1,700 SALE PARCELS AND THE RISK OF FURTHER DEPRESSION
OF LAND VALUES OCCASIONED BY CESSATION OF NEW HAVEN'S OPERATIONS--
FACTORS NOT CONSIDERED BY NEW HAVEN'S WITNESS.  THE HYPOTHETICAL BULK
SALE, PENN CENTRAL SAYS, WAS MERELY A CONSTRUCT FOR QUANTIFYING THE
RISKS THAT NEW HAVEN ITSELF WOULD HAVE ASSUMED IN UNDERTAKING THE SALE
OF ITS REALTY; IT AFFORDED A MEANS TO DETERMINE "THE MINIMUM RATES OF
RETURN NECESSARY TO ATTRACT CAPITAL TO THE BUSINESS OF OWNING AND
DISPOSING OF THE NEW HAVEN'S LAND."  PENN CENTRAL INSISTS THAT THE BULK
SALE ANALYSIS THUS CONSTITUTED A "PRICING OUT" OF AN ADDITIONAL COST OF
LIQUIDATION; IT WAS "SIMPLY AN ANALYTICAL DEVICE FOR APPROXIMATING
RISKS THAT WOULD OCCUR IF THE LAND WERE RETAILED OVER TIME AS PROMPTLY
AS POSSIBLE.  . . . " 

WE MAY ASSUME THAT PENN CENTRAL'S "PRICING OUT" THEORY IS A RATIONAL
ONE.  BUT THE RECORD DEMONSTRATES THAT THE COMMISSION REJECTED IT AS
INSUFFICIENT TO JUSTIFY APPLICATION OF THE BULK-SALE THEORY.  PENN
CENTRAL'S ANALYSIS, SAID THE COMMISSION, 

"OVERLOOKS WHAT IS NECESSARILY THE BONDHOLDERS' POSITION-- NAMELY
THAT ASIDE FROM PRINCIPLES OF EQUITY AND FAIRNESS THEY HAVE A FIXED
RIGHT TO SELL OFF NEW) HAVEN) IN PARCELS, SO THAT EVEN A BULK BUYER
MUST PAY THE PER-PARCEL PRICE.  OUR ANSWER IS THAT WE MAY COMPEL THE
BULK SALE AND THE BULK SALE DISCOUNT AS A CONDITION OF AN ABANDONMENT
CERTIFICATE, AND, THEREFORE, AS A REDUCTION OF THE PRESENT PRICE. 

     " . . . WE . . . MIGHT COMPEL NEW) HAVEN), IF IT FILED FOR

  ABANDONMENT, TO SELL IN BULK AND THEREBY MAKE A BULK SALE PRICE

  APPROPRIATE."  334 I.I.C.,AT 61. 

THE COMMISSION THUS RULED THAT ONLY BY ASSUMING AN ACTUAL BUYER IN BULK
WHO WOULD TAKE OVER THE NEW HAVEN PROPERTIES FOR CONTINUED RAILROAD
OPERATIONS COULD IT COMPEL THE TRANSFER OF THE REAL PROPERTY AT THE
REDUCED PRICE.  FAR FROM SETTING FORTH A THEORY OF COMPULSORY TRANSFER
"COMPLETELY INDEPENDENT" OF A "PRICING OUT" ANALYSIS, THE COMMISSION
CONCLUDED THAT ONLY ITS POWER TO COMPEL THE SALE OF THE REAL ESTATE TO
A SINGLE BUYER FOR CONTINUED OPERATION JUSTIFIED THE BULK-SALE
DISCOUNT. 

WE DO NOT CONSIDER WHETHER THE COMMISSION COULD LAWFULLY IMPOSE SUCH
A BULK-TRANSFER OBLIGATION ON A RAILROAD IN LIQUIDATION AT THE COST OF
REDUCING THE PER-PARCEL VALUATION OF ITS ASSETS.  /74/  FOR THE RECORD
BEFORE US IS DEVOID OF EVIDENCE THAT A BULK BUYER WOULD AGREE TO TAKE
OVER THE NEW HAVEN PROPERTIES FOR CONTINUED SERVICE AT ANY PRICE.  WHEN
A RAILROAD HAS A LENGTHY HISTORY OF DEFICIT OPERATIONS WITH NO PROSPECT
OF IMPROVEMENT, AND A CONSEQUENT OPERATING VALUE OF ZERO OR EVEN A
NEGATIVE FIGURE, THE COMMISSION CANNOT RATIONALLY ASSUME THAT A DEUS EX
MACHINA WILL EMERGE TO SPEND MILLIONS FOR THE OPPORTUNITY TO LOSE
MILLIONS MORE. 

PENN CENTRAL'S WITNESS GAVE NO TESTIMONY IN SUPPORT OF ANY SUCH
THEORY.  HE WAS A PROFESSIONAL DEVELOPER OF REAL ESTATE, NOT A RAILROAD
OPERATOR.  AND HE TESTIFIED TO WHAT EXTRA CHARGES HE WOULD LEVY, AFTER
ALL PREVIOUS DEDUCTIONS FOR THE COSTS AND RISKS OF SALE, TO ASSUME THE
RISK OF NONSALE AS WELL AS THE ENTREPRENEURIAL ACTIVITY OF RETAILING
THE REALTY PARCELS.  HIS TESTIMONY ESTABLISHED NOTHING MORE THAN THAT
HE WOULD NOT UNDERTAKE THE TASK OF PER-PARCEL SALES THAT NEW HAVEN HAD
ASSUMED UNLESS THE COMPANY PAID HIM A HANDSOME FEE.  THE COMMISSION
COULD HARDLY HAVE COMPELLED THE NEW HAVEN TRUSTEES TO TURN OVER THE
ASSETS OF THE DEBTOR TO SUCH AN ENTREPRENEUR, WHO WOULD, ON HIS OWN
TESTIMONY, HAVE PROCEEDED HIMSELF TO DO JUST WHAT THE COMMISSION SAID
IT WAS EMPOWERED TO FORBID THE BONDHOLDERS TO DO-- DISMANTLE THE
ESTATE, RID HIMSELF OF RAILROAD-CONNECTED ASSETS, AND DEVOTE HIS
TALENTS TO THE DISPOSITION OF THE REALTY. 

4.  THE DISCOUNT OF LIQUIDATION FACTORS.  IN ITS SECOND SUPPLEMENTAL
REPORT THE COMMISSION ACCEPTED THE PROJECTION OFFERED BY THE NEW HAVEN
TRUSTEES THAT THEY COULD SUBSTANTIALLY COMPLETE A LIQUIDATION SALE IN
SIX YEARS.  331 I.C.C.,AT 663.  ACCORDINGLY, THE COMMISSION DISCOUNTED
THE ESTIMATED RECEIPTS OF SALE OVER THE SIX-YEAR PERIOD TO REFLECT
THEIR PRESENT VALUE-- A DEDUCTION OF $17,563,000.  ID., AT 661.  IT DID
NOT, HOWEVER, DISCOUNT THE ESTIMATED EXPENSES OF LIQUIDATION, ALTHOUGH
THESE, TOO, WERE PROJECTED TO OCCUR OVER THE SIX-YEAR PERIOD.  THE
REORGANIZATION COURT WAS OF THE VIEW THAT IF FUTURE RECEIPTS WERE TO BE
DISCOUNTED TO PRESENT VALUE, FUTURE EXPENSES SHOULD LIKEWISE BE.  289
F.SUPP.,AT 461; CF. ID., AT 427-428.  ON THE REMAND THE COMMISSION
CONCURRED.  IT NOTED THAT THE PARTIES WERE VERY CLOSE IN THEIR
ESTIMATES OF THE PROPER DISCOUNT, AND IT CONCLUDED THAT $3,800,000
REPRESENTED THE CORRECT FIGURE.  FOURTH SUPPLEMENTAL REPORT, 334
I.C.C.,AT 39-40.     ON THE SECOND ROUND OF REVIEW THE REORGANIZATION
COURT OBSERVED THAT DESPITE THREE VALUATION CHANGES NETTING A
$6,600,000 REDUCTION IN ESTIMATED WORTH, THE COMMISSION HAD FAILED TO
ADJUST THE OLD, INAPPLICABLE DISCOUNT FIGURE.  ACCORDINGLY, THE COURT
DIRECTED THE COMMISSION TO FILE "A NEW FORMULATION AND COMPUTATION OF
THE DISCOUNT FOR PRESENT VALUE OF THE NEW HAVEN'S LIQUIDATION PROCEEDS,
IN ACCORDANCE WITH GENERALLY RECOGNIZED ACCOUNTING PRINCIPLES AND BASED
UPON THE CHANGES MADE IN VALUATION ITEMS THROUGH AND INCLUDING THOSE
STATED IN THE PRESENT OPINION."  304 F.SUPP.,AT 810-811.  THE COURT
ADDED THAT THE COMMISSION COULD SUBMIT ITS NEW FORMULATION AND
COMPUTATION IN THE FORM OF A LETTER OR SHORT BRIEF, AND AFFORDED OTHER
PARTIES IN INTEREST ONE WEEK TO FILE THEIR COMMENTS, AS WELL AS ANY
FORMULATIONS AND COMPUTATIONS OF THEIR OWN, ALSO IN A LETTER OR BRIEF. 
IN ACCORDANCE WITH THIS DIRECTIVE OF THE COURT, THE COMMISSION
SUBMITTED ITS NEW CALCULATIONS, AND THE BONDHOLDERS REPLIED.  IN ITS
ORDER ADJUDGING THE PRICE TO BE PAID, THE REORGANIZATION COURT RULED
THAT "(THE SUM OF $2,415,899 SHOULD BE ADDED TO LIQUIDATION VALUE
INASMUCH AS IT WAS IMPROPERLY DEDUCTED IN APPLYING THE DISCOUNT TO
PRESENT VALUE FOUND BY THE COMMISSION.  . . . "  304 F.SUPP.  1136,
1137. 

IN ITS BRIEF BEFORE THIS COURT THE BONDHOLDERS COMMITTEE STATES THAT
THE REORGANIZATION COURT'S DIRECTIVE RESULTED FROM THE COMMISSION'S
CONTINUED FAILURE TO CALCULATE DISCOUNTS BACK TO PRESENT VALUE WITH
RESPECT TO FOUR ITEMS, THREE OF THEM TO THE DETRIMENT OF NEW HAVEN AND
ONE TO THE DETRIMENT OF PENN CENTRAL.  THE FIRST IS THE $8,177,633
DEDUCTED AS THE COST OF HYPOTHETICAL FORCED SALES OF NEW HAVEN REALTY
DURING THE LAST YEARS OF THE LIQUIDATION.  THE COMMISSION COULD HAVE
TREATED THE ITEM EITHER AS PART OF THE VALUE OF THE UNSOLD LAND AND
THEN WRITTEN IT OFF AS A COST OF SALE, WITH A DISCOUNT BACK TO PRESENT
VALUE FOR BOTH SIDES OF THE BALANCE SHEET, OR AS A WASH TO BE
ELIMINATED IN COMPUTING BOTH RECEIPTS AND EXPENSES.  IN FACT THE
COMMISSION DID NEITHER:  IT INCLUDED THE FIGURE ON BOTH SIDES OF THE
BOOKS, BUT DISCOUNTED BACK ONLY IN THE ASSET COLUMN.  THE RESULT, SAYS
THE COMMITTEE, IS AN ERROR OF $2,066,488.  A SIMILAR SHORTCOMING IN
DETERMINING THE LIQUIDATION VALUES OF ROAD PROPERTY, SUCH AS TIES AND
RAILS, ADDED ANOTHER ERROR OF $1,474,057.  THIRD, SAYS THE COMMITTEE,
THE COMMISSION ERRONEOUSLY SPREAD THE SALE OF CERTAIN REALTY OVER THE
FULL SIX-YEAR PERIOD WHEN THE UNDISPUTED EVIDENCE SHOWED THAT NEW HAVEN
COULD SELL THE LAND IN 12 TO 18 MONTHS; THIS RESULTED IN AN
OVERSTATEMENT OF $118,000 IN THE DISCOUNT ATTRIBUTABLE TO THE NET
PROCEEDS.  FINALLY, THE COMMISSION ASSUMED THAT NEW HAVEN COULD SELL
OFF $47,121,400 IN EQUIPMENT, INVESTMENTS, AND MATERIALS DURING THE
FIRST YEAR OF THE LIQUIDATION, BUT FAILED TO SPREAD THE ASSUMED
RECEIPTS OVER THE ENTIRETY OF THAT YEAR, WITH A CONSEQUENT
UNDERSTATEMENT OF $1,372,646 IN THE APPLICABLE DISCOUNT.  A NETTING OF
THE FOUR ITEMS, TOGETHER WITH AN ADDED CORRECTION OF $130,000 MADE BY
THE COMMISSION, RESULTS IN THE $2,415,899 ADJUSTMENT ORDERED BY THE
REORGANIZATION COURT. 

THE COMMISSION DOES NOT DISPUTE THAT IT MADE THE ERRORS AS ALLEGED
BY THE COMMITTEE.  ITS SOLE REPLY IS THAT THE BONDHOLDERS HAVE WAIVED
THEIR CLAIMS IN THIS REGARD BY FAILING TO PRESENT THEM TO THE
COMMISSION.  PENN CENTRAL CONCEDES THAT "THE FIRST TWO ERRORS ASSERTED
BY THE BONDHOLDERS REPRESENT MISCOMPUTATIONS" IN PENN CENTRAL'S FAVOR. 
BUT IT ARGUES THAT THE AMOUNT OF THE FOURTH ERROR AND THE EXISTENCE OF
THE THIRD WERE THE SUBJECT OF CONFLICTING TESTIMONY BEFORE THE
COMMISSION, AND IT JOINS IN THE COMMISSION'S CONTENTION THAT THE
BONDHOLDERS HAVE WAIVED THE RIGHT TO A RESOLUTION IN THEIR FAVOR BY
FAILING TO PRESS A TIMELY OBJECTION BEFORE THE COMMISSION WHEN THE
AGENCY FIRST MADE ITS ALLEGED MISTAKES. 

THE RECORD DEMONSTRATES THAT THE BONDHOLDERS HAVE THE BETTER OF THIS
ARGUMENT.  IT IS UNDISPUTED THAT BOTH THE BONDHOLDERS AND PENN CENTRAL
PRESENTED WITNESSES TO THE COMMISSION ON THE REMAND WHO AGREED THAT THE
COMMISSION HAD ERRED IN ITS DISCOUNTS AND WHO DIFFERED ONLY IN MINOR
AMOUNTS.  SEE FOURTH SUPPLEMENTAL REPORT, 334 I.C.C.,AT 40.  BUT THE
COMMISSION SIMPLY BYPASSED THE AGREEMENT, UNPERSUADED THAT IT HAD ERRED
IN ITS PRIOR OPINION.  ID., AT N. 17.  THE BONDHOLDERS THEN CARRIED THE
PERSISTENT DISCOUNTING ERROR TO THE REORGANIZATION COURT ON THE SECOND
ROUND AND WON CORRECTIVE RELIEF.  THE SUBMISSION OF PROPOSED
ADJUSTMENTS BY WAY OF A LETTER WAS NOT, AS IS SUGGESTED, AN UNTIMELY
FILING OF CLAIMS, BUT A PROPER PRESENTATION PURSUANT TO THE INSTRUCTION
OF THE COURT-- AN INSTRUCTION MADE NECESSARY BY THE COMMISSION'S
FAILURE TO STRAIGHTEN OUT THE DISCOUNTS AFTER TWO ROUNDS OF HEARINGS
AND REPORTS, WITH ERRORS THAT THE BONDHOLDERS ON ONE SIDE AND PENN
CENTRAL ON THE OTHER NOW FRANKLY CONCEDE AGGREGATE OVER $5,000,000.  OF
THE FOUR ITEMS ADVANCED BY THE COMMITTEE, ONLY THE THIRD IS SUBJECT TO
ANY REAL DOUBT, AND THAT $118,000 ITEM CAN HARDLY BE CONSIDERED A
SUBSTANTIAL SUM IN THE CONTEXT OF THESE CASES.  A FURTHER REMAND TO THE
COMMISSION TO RESOLVE THE ACCURACY OF SUCH A FIGURE WOULD SERVE NO
USEFUL PURPOSE AT THIS STAGE OF THE LITIGATION.  THE REORGANIZATION
COURT RESOLVED THE CONTROVERSY IN FAVOR OF THE BONDHOLDERS FOLLOWING
EXTENSIVE ORAL ARGUMENT ON THE ISSUE.  WE AFFIRM ITS JUDGMENT ON THESE
ISSUES AS FREE FROM THAT DEGREE OF ERROR THAT WOULD REQUIRE US TO
OVERTURN ITS FINDING. 

5.  THE LOAN-LOSS FORMULA.  IN ITS SECOND SUPPLEMENTAL REPORT THE
COMMISSION, PROJECTING A THREE-YEAR INTERIM PERIOD BETWEEN MERGER AND
INCLUSION AND CONCLUDING THAT A SHORT-TERM LEASE WOULD NOT BE
APPROPRIATE, REQUIRED PENN CENTRAL TO EXTEND $25,000,000 IN LOANS TO
THE NEW HAVEN IN EXCHANGE FOR FIRST-PRIORITY TRUSTEES' CERTIFICATES. 
331 I.C.C.,AT 702-706.  /75/  IN ADDITION, IT ORDERED PENN CENTRAL TO
SHARE IN NEW HAVEN'S OPERATING LOSSES TO THE EXTENT OF 100% IN THE
FIRST YEAR, 50% IN THE SECOND, AND 25% IN THE THIRD, NOT TO EXCEED
$5,500,000 IN ANY ONE YEAR.  ID., AT 718-719.  ON THE FIRST ROUND OF
JUDICIAL REVIEW THE SLIDING-SCALE ASPECT OF THE FORMULA WAS DISAPPROVED
AS AN IMPROPER DETERRENT TO THE BONDHOLDERS' ASSERTION OF THEIR LEGAL
RIGHTS, 289 F.SUPP.,AT 444, PURSUANT TO THE SUGGESTION OF MR.JUSTICE
DOUGLAS AT AN EARLIER STAGE OF THE PROCEEDINGS, SEE PENN-CENTRAL MERGER
CASES, 389 U.S.,AT 557-558 (SEPARATE OPINION), AND ON THE REMAND THE
COMMISSION ABANDONED IT.  334 I.C.C.,AT 71-72. 

THE $5,500,000 ANNUAL CEILING DERIVED FROM THE ASSUMPTION, BASED ON
CALCULATIONS PROVIDED BY THE NEW HAVEN TRUSTEES AND ACCEPTED BY THE
COMMISSION, THAT DESPITE THE MASSIVE CASH DRAIN IN 1967, FUTURE ANNUAL
NEW HAVEN OPERATING LOSSES WOULD BE UNLIKELY TO EXCEED $5,400,000 IN
SUCCEEDING YEARS.  331 I.C.C.,AT 718-719.  COUPLED WITH THE SLIDING
SCALE FORMULA, THE ANNUAL CEILING THUS PROPOSED THAT PENN CENTRAL
ABSORB THE ENTIRETY OF NEW HAVEN'S 1968 CASH LOSS.  ON THE FIRST ROUND
THE REORGANIZATION COURT EXPRESSED THE OPINION THAT EVEN WITH THE
ABROGATION OF THE SLIDING SCALE, PENN CENTRAL'S SHARE OF THAT LOSS
"SHOULD BE A SUBSTANTIAL PERCENTAGE."  289 F.SUPP.,AT 464. 

BY THE TIME THE PARTIES RETURNED TO THE COMMISSION ON THE REMAND, IT
WAS EVIDENT THAT THE TRUSTEES' APPRAISAL OF THEIR ABILITY TO CONTAIN
THE NEW HAVEN'S DEFICITS HAD BEEN FAR TOO OPTIMISTIC.  FROM FEBRUARY
THROUGH DECEMBER 1968, THE TRUSTEES HAD ALREADY DRAWN DOWN $14,000,000
OF THE $25,000,000 LOAN THAT WAS SUPPOSED TO LAST FOR THREE YEARS; AT
THAT RATE THEY WOULD EXHAUST THE LOAN IN ANOTHER SIX OR SEVEN MONTHS. 
334 I.C.C.,AT 72.  THE CASH LOSS WAS EQUALLY GRIM:  THE PROJECTED 1968
CASH DEFICIT STOOD AT $15,672,000, WITH AN ESTIMATED OPERATING DEFICIT
OF $8,200,000.  DESPITE THE $2,800,000 INCREASE IN THE OPERATING
DEFICIT OVER THE TRUSTEES' INITIAL PREDICTION, THE COMMISSION ADHERED
TO ITS ORIGINAL CEILING AND, PRORATING OVER THE 11-MONTH PERIOD FROM
MERGER TO INCLUSION, REQUIRED PENN CENTRAL TO PAY $5,000,000.  334
I.C.C.,AT 74.  ON THE SECOND ROUND OF REVIEW THE REORGANIZATION COURT
AFFIRMED WITHOUT DISCUSSION. 

THE BONDHOLDERS NOW URGE THAT PENN CENTRAL BE REQUIRED TO BEAR THE
ENTIRE OPERATING LOSS FROM MERGER TO INCLUSION.  NEW HAVEN INCURRED
THAT LOSS AS AN INDEPENDENT ENTITY, SAY THE BONDHOLDERS, ONLY BECAUSE
IT REMAINED OUTSIDE OF PENN CENTRAL AFTER THE MERGER, AT PENN CENTRAL'S
REQUEST AND FOR PENN CENTRAL'S CONVENIENCE.  IT IS URGED THAT THE
COMMISSION'S CEILING WAS ORIGINALLY CALCULATED TO PLACE THE ENTIRE LOSS
OF THE FIRST YEAR ON PENN CENTRAL, AND THAT THE ORIGINAL INTENTION
SHOULD BE CARRIED OUT.  /76/ 

PENN CENTRAL DENIES RESPONSIBILITY FOR THE FACT THAT INCLUSION TOOK
PLACE SOME 11 MONTHS AFTER MERGER RATHER THAN ALONG WITH IT, AND PUTS
THE BLAME AT THE DOOR OF THE BONDHOLDERS FOR THEIR LITIGIOUS INSISTENCE
UPON WORKING OUT THE TERMS OF INCLUSION PRIOR TO THE EVENT.  IT ALSO
NOTES THAT IT HAS BEEN OBLIGED TO TAKE OVER NEW HAVEN LESS THAN A YEAR
AFTER ITS OWN FORMATION, RATHER THAN AT A LATER POINT IN THE THREE-YEAR
PERIOD ORIGINALLY ENVISAGED BY THE COMMISSION. 

WHILE THE ISSUE IS NOT FREE FROM DOUBT, WE CANNOT SAY THE
REORGANIZATION COURT COMMITTED ERROR IN LETTING THE COMMISSION'S ACTION
STAND.  WITHOUT ASCRIBING FAULT TO ANY PARTY, WE NOTE THE UNFAIRNESS TO
THE BONDHOLDERS IN REQUIRING THEM TO BEAR WHATEVER PORTION OF THE
OPERATING LOSS PENN CENTRAL DOES NOT PAY DUE TO THE INABILITY OF PENN
CENTRAL AND THE TRUSTEES TO NEGOTIATE AN INTERIM LEASE.  ON THE OTHER
HAND, THERE IS A COUNTERVAILING UNFAIRNESS TO PENN CENTRAL IN REQUIRING
IT TO BEAR THE FULL BURDEN OF NEW HAVEN'S LOSSES WHILE IT LACKED
EXCLUSIVE AND ASSURED CONTROL OVER THE OPERATIONS OF THE DEBTOR.  THE
$5,000,000 PAID BY PENN CENTRAL IS NO DROP IN THE BUCKET; IT AMOUNTS TO
61% OF THE OPERATING LOSS AS FIGURED BY THE COMMISSION AND NEARLY ONE
THIRD OF THE ENTIRE CASH LOSS FOR THE INTERIM PERIOD.  IN NO SENSE DID
PENN CENTRAL'S CONTRIBUTION REPRESENT A PAYMENT FOR ASSETS RECEIVED; ON
THE LIQUIDATION HYPOTHESIS, THE COMMISSION COULD RATIONALLY HAVE
DECLINED TO REQUIRE ANY PAYMENT AT ALL.  CHASE MANHATTAN ARGUES THAT
"(EITHER THERE WAS NO EQUITABLE OBLIGATION ON THE PART OF PENN CENTRAL
TO PAY ANY OF THE NEW HAVEN LOSS DURING THE PERIOD FROM THE DATE OF THE
PENN CENTRAL MERGER TO THE DATE OF ITS ACQUISITION OF THE NEW HAVEN
ASSETS OR THERE WAS AN OBLIGATION TO PAY THE ENTIRE LOSS."  WE CANNOT
AGREE THAT THE COMMISSION WAS OBLIGED TO ADOPT SUCH AN ALL-OR-NOTHING
APPROACH.  UNDER THE CIRCUMSTANCES, THE COMMISSION'S FINAL DISPOSITION
REPRESENTS A PRAGMATIC COMPROMISE OF THE COMPETING INTERESTS, AND IN
THE ABSENCE OF A CONTROLLING CONTRARY PRINCIPLE OF LAW WE DO NOT
DISTURB THE REORGANIZATION COURT'S ACCEPTANCE OF THE COMMISSION'S
JUDGMENT. 

6.  NEW HAVEN INVESTMENTS.  THE BONDHOLDERS COMMITTEE COMPLAINS THAT
NEW HAVEN HAS TRANSFERRED ITS STOCK OWNERSHIP IN TWO CONCERNS-- THE NEW
YORK CONNECTING RAILROAD AND THE RAILWAY EXPRESS AGENCY-- WITH NO VALUE
GIVEN IN EXCHANGE.  THE CONNECTING RAILROAD WAS OWNED JOINTLY BY NEW
HAVEN AND PENN CENTRAL ON A 50-50 BASIS, FOURTH SUPPLEMENTAL REPORT,
334 I.C.C.,AT 44 N. 20, AND IS NOW PRESUMABLY A WHOLLY OWNED SUBSIDIARY
OF THE MERGED COMPANY.  REA IS OWNED BY VARIOUS RAILROADS; AT THE TIME
OF INCLUSION NEW HAVEN HELD ABOUT 4.5% OF THE OUTSTANDING STOCK. 

IN BOTH INSTANCES THE COMMISSION VALUED NEW HAVEN'S INVESTMENT
INTEREST ON THE LIQUIDATION HYPOTHESIS.  A WITNESS PRESENTED BY THE NEW
HAVEN TRUSTEES, WHOSE TESTIMONY THE COMMISSION ACCEPTED, STATED THAT
BECAUSE OF CONNECTING RAILROAD'S $18,000,000 FUNDED DEBT ITS STOCK
WOULD HAVE NO LIQUIDATION VALUE WHATEVER.  AS TO THE REA, HE SAID THAT
ITS STOCK WOULD HAVE LITTLE OR NO VALUE BECAUSE OF PENDING LITIGATION
OVER A TENDER OFFER FOR THE STOCK /77/  AS WELL AS RECENT LEGISLATION
INCREASING THE PERMISSIBLE SIZE AND WEIGHT OF PARCEL POST PACKAGES. 
SECOND SUPPLEMENTAL REPORT, 331 I.C.C.,AT 678. 

THE BONDHOLDERS COMMITTEE DOES NOT ATTACK THE COMMISSION'S FINDING
OF ZERO VALUE FOR THE CONNECTING RAILROAD AND REA STOCK.  INSTEAD, THE
COMMITTEE SAYS THAT IF THE SHARES WERE WORTHLESS, THE COMMISSION ERRED
IN REQUIRING THEIR TRANSFER TO PENN CENTRAL.  WERE THE STOCK TO HAVE
HAD NO VALUE ON THE LIQUIDATION OF NEW HAVEN, THE COMMITTEE ARGUES, THE
REORGANIZATION COURT WOULD, IN THE ABSENCE OF BIDS FOR THE SHARES, HAVE
ORDERED THEIR DISTRIBUTION TO THE CREDITORS TO DO WITH AS THEY
PLEASED.  ACCORDINGLY, THE COMMITTEE CALLS FOR THE RETURN OF THE STOCK
TO NEW HAVEN. 

THE COMMITTEE'S REQUEST OVERLOOKS THE FACT THAT EVEN THOUGH THE
SHARES IN QUESTION MIGHT BE WORTHLESS TO A NEW HAVEN UNDERGOING
LIQUIDATION, THE COMMISSION COULD NONETHELESS ORDER THEIR TRANSFER ON
THE GROUND OF THEIR VALUE TO AN ONGOING PENN CENTRAL REQUIRED TO TAKE
IN NEW HAVEN AS AN OPERATING ENTITY.  BUT ENTIRELY APART FROM THAT
CONSIDERATION, AND WITHOUT PAUSING TO ASSESS THE CORRECTNESS OF THE
ZERO VALUATION PLACED ON THE STOCK, WE AGREE WITH PENN CENTRAL THAT THE
COMMITTEE'S REQUEST FOR THE RETURN OF THE STOCK IS FORECLOSED BY RES
JUDICATA.  FOR THE COMMITTEE-- AS WELL AS ALL THE OTHER BONDHOLDERS--
TOOK NO APPEAL FROM THE ORDER OF THE REORGANIZATION COURT DIRECTING THE
TRANSFER OF THE NEW HAVEN ASSETS SUBJECT TO A LATER DETERMINATION OF
VALUE.  /78/ 

7.  "GOING-CONCERN" VALUE.  THE BONDHOLDERS URGE THAT PENN CENTRAL
SHOULD PAY AN ADDED AMOUNT TO REFLECT THE "GOING-CONERN" VALUE OF THE
NEW HAVEN.  THIS SUM, IT IS STRESSED, WOULD BE CALCULATED, NOT AS AN
ALTERNATIVE TO LIQUIDATION VALUE, BUT AS A SUPPLEMENT TO IT.  SINCE IT
IS UNIVERSALLY AGREED THAT THE NEW HAVEN WAS A LOSING OPERATION IN THE
FORM IN WHICH PENN CENTRAL WAS OBLIGED TO TAKE IT OVER THE BONDHOLDERS
DISPLAY CONSIDERABLE TEMERITY IN PRESSING FOR INCLUSION OF WHAT COULD
PROVE, IN AN ULTIMATE ANALYSIS, TO BE ONLY A SUBSTANTIAL NEGATIVE
FIGURE.  /79/     THE COMMISSION REJECTED THE NOTION THAT THE NEW HAVEN
HAD A GOING-CONCERN VALUE OVER AND ABOVE THE LIQUIDATION VALUE OF ITS
PHYSICAL PROPERTIES.  IN THE COMMISSION'S VIEW, THE BONDHOLDERS'
ESTIMATE OF $55,075,000 FOR SUCH INTANGIBLES AS ORGANIZATIONAL COSTS
WAS PREMISED ON THE REPLACEMENT OF A DEFUNCT RAILROAD AND OVERLOOKED
THE PROBABILITY THAT NO ONE WOULD EVER HAVE REBUILT THE NEW HAVEN IN
ITS PRESENT FORM.  MORE FUNADAMENTALLY, THE COMMISSION CORRECTLY
REPUDIATED THE CLAIMS BASED ON GOING-CONCERN VALUE AS ANTITHETICAL TO
THE LIQUIDATION HYPOTHESIS ON WHICH THE APPRAISAL OF THE NEW HAVEN'S
ASSETS HAD PROCEEDED.  AS THE COMMISSION SAID, "IT IS NOT REALISTIC TO
ASSUME THAT A POTENTIAL BUYER WOULD PAY THE LIQUIDATED VALUE OF THE
NEW) HAVEN) ASSETS AND THEN PAY ADDITIONAL AMOUNTS REPRESENTING
ELEMENTS OF GOING CONCERN VALUE IN THE FACE OF NEW) HAVEN)'S PAST
DEFICIT OPERATIONS AND ITS BLEAK PROSPECTS FOR THE FUTURE."  SECOND
SUPPLEMENTAL REPORT, 331 I.C.C.,AT 686-687. 

THE BONDHODLERS COMMITTEE CONCEDES THAT THE INTANGIBLE ASSETS IN
FACT ACQUIRED BY PENN CENTRAL "WOULD BE WORTHLESS TO THE NEW HAVEN IN
AN ASSUMED LIQUIDATION.  . . . "  THAT IS ENOUGH TO END THE MATTER. 
THE BONDHOLDERS ARE NOT ENTITLED TO TREAT THE NEW HAVEN AS A
LIQUIDATING ENTERPRISE WITH RESPECT TO CERTAIN ITEMS AND AS AN
OPERATING RAILROAD WITH RESPECT TO OTHERS, DEPENDING ON WHICH APPROACH
HAPPENS TO YIELD THE HIGHER VALUE.  NOTHING COULD BE MORE UNFAIR OR
INEQUITABLE TO PENN CENTRAL THAN TO PERMIT THE NEW HAVEN BONDHOLDERS,
AT ITS EXPENSE, TO HAVE THE BEST OF BOTH WORLDS.  /80/ 

8.  THE "UNDERWRITING" PLAN FOR THE PENN CENTRAL STOCK.  THUS FAR WE
HAVE CONSIDERED THE DISPUTES OVER THE VALUATION OF THE NEW HAVEN ASSETS
TRANSFERRED TO PENN CENTRAL.  WE NOW REACH THE ONE ISSUE RAISED IN
CONNECTION WITH THE CONSIDERATION GIVEN BY PENN CENTRAL IN EXCHANGE. 
THE PURCHASE AGREEMENT NEGOTIATED BY PENNSYLVANIA AND NEW YORK CENTRAL
ON THE ONE SIDE AND THE NEW HAVEN TRUSTEES ON THE OTHER PROVIDED THAT
PENN CENTRAL SHOULD PAY IN PART FOR THE NEW HAVEN PROPERTIES WITH
950,000 SHARES OF ITS COMMON STOCK.  /81/  AS A NEW HAVEN TRUSTEE
STATED, "(ONE OF THE PRINCIPLES FOR WHICH WE NEGOTIATED AT CONSIDERABLE
LENGTH WAS THAT THE BULK OF THE CONSIDERATION SHOULD BE IN THE FORM OF
COMMON STOCK OR, FAILING THAT, SHOULD BE DEBT INSTRUMENTS HAVING EITHER
CONVERSION RIGHTS OR OPTIONS WHICH WOULD PERMIT THE CLAIMANTS TO THE
NEW HAVEN'S ESTATE TO PARTICIPATE IN THE BENEFITS OF THE MERGER."  IN
CONFIRMING THE TERMS OF THE AGREEMENT, THE COMMISSION ACCEPTED THE
TESTIMONY OF A NEW HAVEN TRUSTEE THAT THE VALUE OF THE STOCK COULD
RANGE ANYWHERE FROM $75 TO $100 A SHARE ON THE DATE OF CLOSING AND THAT
THE AVERAGE $87.50, REPRESENTED HIS ESTIMATE OF MARKET VALUE AT THE
TIME OF INCLUSION.  331 I.C.C.,AT 688-689.  THE COMMISSION ADOPTED THE
$87.50 PER SHARE VALUE PLACED ON THE PENN CENTRAL STOCK BY THE TRUSTEE
AS REASONABLE.  ID., AT 689-690. 

ON THE FIRST ROUND OF REVIEW THE REORGANIZATION COURT AGREED THAT
THE $87.50 PER SHARE FIGURE REPRESENTED A FAIR VALUE FOR THE PENN
CENTRAL STOCK, BASED ON THE COMMISSION'S CALCULATION OF THE ESTIMATED
FUTURE EARNING POWER OF THE NEW COMPANY AND THE TESTIMONY OF THE NEW
HAVEN TRUSTEE, "A WELL QUALIFIED EXPERT."  THE COURT SAW "NO REASON WHY
RECENT FLUCTUATIONS IN THE MARKET VALUE OF THESE SHARES SHOULD CHANGE
THE DISPOSITION OF THE MATTER.  . . . "  289 F.SUPP.,AT 462. 

ON THE REMAND, THE BONDHOLDERS CHALLENGED THE COMMISSION'S STOCK
VALUATION.  THE COMMISSION CURSORILY REJECTED THE ATTACK ON THE GROUND
THAT THE BONDHOLDERS' WITNESS WAS UNFAMILIAR WITH PENN CENTRAL'S
OPERATING AND FINANCIAL PLANS, GAVE UNDUE WEIGHT TO EXTRAORDINARY PAST
EXPENSES, AND GENERALLY NEGLECTED THE FUTURE PROSPECTS OF THE COMPANY. 
334 I.C.C.,AT 68 N. 40. 

BY THE TIME OF THE SECOND ROUND OF JUDICIAL REVIEW, INCLUSION HAD
TAKEN PLACE AND THE PENN CENTRAL HAD GIVEN ITS CONSIDERATION IN
EXCHANGE.  THE BONDHOLDERS, RENEWING THEIR CHARGE THAT THE COMMISSION'S
PROHECY HAD BEEN ERRONEOUS, POINTED TO THE ACTUAL MARKET PERFORMANCE OF
THE STOCK.  AS OF THE INCLUSION DATE, DECEMBER 31, 1968, THE MARKET
PRICE STOOD AT 63 3/8, MORE THAN 20 POINTS BELOW THE COMMISSION'S
ESTIMATED VALUE.  IF THAT DATE SHOULD BE THOUGHT SUSPECT BECAUSE OF
YEAR-END SELL-OFFS, THE BONDHOLDERS NOTED THAT THROUGHOUT 1968 THE
PRICE HAD FLUCTUATED BETWEEN 53 1/2 AND 86 1/2, WITH A MEAN PRICE
BETWEEN FEBRUARY 1 AND DECEMBER 31 OF 69 1/2.  THUS, THE BONDHOLDERS
CONTENDED, THE PRIMIARY COMPONENT OF THEIR BUNDLE OF CONSIDERATION HAD
TURNED OUT TO BE WORTH ANYWHERE FROM $17,000,000 TO $23,000,000 LESS
THAN IT WAS SUPPOSED TO BE. 

ON THE SECOND ROUND THE REORGANIZATION COURT REJECTED THE
BONDHOLDERS' CONTENTION THAT THE COMMISSION HAD PREDICTED AN $87.50
VALUE AS OF THE CLOSING DATE. 

"(THE COMMISSION, PRESUMABLY IN AN EFFORT TO ASSURE FAIRNESS TO PENN
CENTRAL, DID NOT USE THE MARKET VALUE OF DECEMBER 31, 1966 OR AN
AVERAGE OF THE VALUES AT OR ABOUT DECEMBER 31, 1968, THE ACTUAL DATE OF
TRANSFER.  INSTEAD, IT ADOPTED THE THEORY THAT, AFTER ALL, THE PURPOSE
OF USING STOCK IN PAYMENT WAS TO TAP THE EXPECTED FUTURE ECONOMIC
BENEFIT OF THE PENN CENTRAL MERGER WHICH WOULD COME TO FULL FRUITION
SEVEN TO TEN YEARS AFTER ITS EFFECTIVE DATE ON FEBRUARY 1, 1968, BUT
WOULD BE REFLECTED IN AN UPWARD TREND OF THE STOCK AT THE TIME OF
CLOSING OR TRANSFER OF NEW HAVEN'S ASSETS TO PENN CENTRAL, THEN
ESTIMATED TO BE IN 1970. 

        *          *  *          * 

"(THE THEORY OF GIVING RECOGNITION TO AN INTRINSIC VALUE IN THE
SHARES, WHICH WILL BE REALIZED WHEN THE FULL ECONOMIC BENEFITS OF THE
MERGER HAVE BEEN ACHIEVED, NOT ONLY ASSISTS THE PENN CENTRAL BY
RELIEVING IT OF THE NEED TO DIVEST ITSELF OF A CRIPPLING AMOUNT OF
CASH, WHICH WOULD BE PREJUDICIAL TO ITS MERGER PROGRAM, BUT AFFORDS THE
NEW HAVEN AN OPPORTUNITY TO PARTICIPATE IN PROBABLE FUTURE PROFITS." 
304 F.SUPP.,AT 808-809. 

THE COURT NONETHELESS RECOGNIZED AN ELEMENT OF UNFAIRNESS TO THE NEW
HAVEN BONDHOLDERS IN THAT THE NEW HAVEN WAS COMPELLED TO ACCEPT THE
STOCK "AT A SUBSTANTIAL PRESENT LOSS ON AN ASSURANCE OF FUTURE GAIN." 
AS THE COURT PUT IT, "THE NUB OF THE UNFAIRNESS AND INEQUITY IS NOT THE
87 1/2 FIXED FOR PRESENT CALCULATIONS, BUT THE FACT THAT THE PURCHASER
IS GETTING ASSETS OF SURE PRESENT VALUE WHILE THE SELLER IS ASKED TO
GAMBLE FOR ITS PAYMENT ON THE FUTURE OF THE PENN CENTRAL."  ID., AT
809.  THE COURT CONCLUDED THAT THIS DID NOT NECESSITATE A CHANGE IN
PRICE OR AN AMENDMENT TO THE VALUATIONS POSTULATED BY THE COMMISSION. 
"TO BE FAIR AND EQUITABLE, HOWEVER, IT DOES REQUIRE A SUPPLEMENTAL
PROVISION FULFILLING THE IMPLICIT PROMISE BY THE PURCHASER TO PAY $83.1
MILLION AS PART OF THE PRICE FOR THE ASSETS CONVEYED."  ACCORDINGLY,
THE COURT PROVIDED THAT 

"IF AT ANY TIME THE MARKET PRICE OF PENN CENTRAL COMMON SHARES
REACHES AND MAINTAINS 87 1/2 PER SHARE ON THE NEW YORK STOCK EXCHANGE
FOR A PERIOD OF FIVE CONSECUTIVE DAYS ON WHICH THE EXCHANGE IS OPEN AND
DOING BUSINESS (NOT COUNTING DAYS ON WHICH THE EXCHANGE IS CLOSED TO
TRADING) BETWEEN THE DATE OF FINAL CONSUMMATION OF THE PLAN OR
REORGANIZATION AND FEBRUARY 1, 1978, THEN AND IN THAT EVENT IT WILL BE
CONCLUSIVELY PRESUMED THAT PENN CENTRAL HAS, IN TRANSFERRING THE SHARES
TO THE NEW HAVEN, MADE PAYMENT OF THE $83.1 MILLION OF THE PURCHASE
PRICE REPRESENTED BY THE SHARES.  IF, HOWEVER, THE COMMON SHARES OF
PENN CENTRAL DO NOT REACH AND MAINTAIN THE PRICE AS AFORESAID, THEN THE
VALUE OF THE SHARES WILL BE DETERMINED BY THE AVERAGE OF THE MEANS
BETWEEN HIGH AND LOW PRICES OF PENN CENTRAL SHARES ON THE NEW YORK
STOCK EXCHANGE FOR THE 30 BUSINESS DAYS NEXT PRECEDING FEBRUARY 1,
1978, ON WHICH THE EXCHANGE IS ACTUALLY OPERATING AND THERE ARE SALES
OF PENN CENTRAL SHARES.  PENN CENTRAL WILL FORTHWITH BECOME LIABLE TO
PAY IN CASH TO THE NEW HAVEN, OR ITS SUCCESSOR OR SUCCESSORS, THE
DIFFERENCE BETWEEN SAID MEAN MARKET PRICES OF THOSE 30 DAYS AND 87 1/2
FOR EACH SHARE.  . . . "  304 F.SUPP.,AT 809-810.  THE COURT PROVIDED
THAT THE BENEFIT OF PENN CENTRAL'S UNDERWRITING OF ANY DIFFERENCE
BETWEEN THE MEAN MARKET PRICE AND 87 1/2 WOULD INURE ONLY TO THE NEW
HAVEN AND WOULD NOT FOLLOW THE SHARES INTO THE HANDS OF THIRD-PARTY
BUYERS. 

IN ADDITION, THE COURT AFFORDED PENN CENTRAL THE OPTION OF RELIEVING
ITSELF OF THE 1978 UNDERWRITING OBLIGATION IN THE FOLLOWING MANNER: 

"THE PENN CENTRAL IS GRANTED AN OPTION, OPERATIVE BETWEEN THE DATE
OF FINAL CONSUMMATION OF THE PLAN AND FEBRUARY 1, 1978, TO DISCHARGE
ITS OBLIGATION TO UNDERWRITE AND PAY THE DIFFERENCE BETWEEN SUCH
AVERAGE MARKET PRICE AND THE HIGHER 87 1/2 AT THE END OF THE TEN YEAR
PERIOD BY PAYING ON ONE OR MORE BLOCKS OF 50,000 SHARES TO THE NEW
HAVEN . . . THE DIFFERENCE BETWEEN THE MEAN MARKET PRICES FOR SALES OF
PENN CENTRAL COMMON SHARES AND 87 1/2 PER SHARE AS A SPECIFIC DAY OF
SALES ON THE EXCHANGE WHICH SHALL PREVIOUSLY HAVE BEEN DESIGNATED BY
PENN CENTRAL IN A WRITTEN NOTICE DELIVERED TO THE NEW HAVEN AT LEAST 5
DAYS PRIOR TO SUCH MARKET DATE."  ID., AT 810. 

THE UNDERWRITING PLAN OF THE REORGANIZATION COURT THUS COMBINED A
SERIES OF ESSENTIAL FINDINGS AND PROTECTIVE FEATURES.  FIRST, IT
RATIFIED THE COMMISSION'S DETERMINATION THAT INTRINSIC VALUE RATHER
THAN MARKET PRICE SHOULD GUIDE THE APPRAISAL OF THE WORTH OF THE PENN
CENTRAL COMMON STOCK; SECOND, IT PREDICTED THAT THAT INTRINSIC VALUE
WOULD BE REFLECTED IN A MARKET PRICE OF AT LEAST $87.50 PER SHARE BY
THE TIME PENN CENTRAL FULLY REALIZED THE BENEFITS OF ITS MERGER; THIRD,
IT PROVIDED THAT PENN CENTRAL WOULD SECURE THE NEW HAVEN ESTATE AGAINST
THE RISK THAT THE MARKET PRICE OF ITS STOCK WOULD NOT REFLECT THAT
MINIMUM INTRINSIC VALUE WITHIN THE FIRST NINE YEARS AFTER INCLUSION;
AND FOURTH, IT CONTEMPLATED THAT NEW HAVEN WOULD BE LEFT FREE TO
PARTICIPATE IN WHATEVER FUTURE APPRECIATIONS IN VALUE PENN CENTRAL'S
STOCK MIGHT ENJOY.  IN SUM, THE REORGANIZATION COURT DEVISED A PLAN
THAT ADDED TO ITS ASSESSMENT OF PRESENT WORTH BOTH A REASONABLE
ASSURANCE OF REALIZATION OF SUCH WORTH AND THE OPPORTUNITY OF
ADDITIONAL GAIN.  IN SO DOING, THE REORGANIZATION COURT IN EFFECT
DETERMINED THAT POSTPONEMENT OF IMMEDIATE REALIZATION OF $87.50 PER
SHARE WAS OFFSET BY THE POSSIBILITY OF EVEN GREATER FUTURE MARKET PRICE
OF THE STOCK, AND THAT THE PACKAGE CONSTITUTED FAIR COMPENSATION FOR
THE ASSETS TRANSFERRED TO PENN CENTRAL. 

ON THE BASIS OF THE RECORD BEFORE THE DISTRICT COURT AT THE TIME OF
ITS ORDER, WE WOULD HAVE NO HESITANCY IN ACCEPTING ITS FINDINGS,
CONCLUSIONS, AND PROPOSED UNDERWRITING PLAN AS CONSISTENT WITH THE
HISTORY OF THE REORGANIZATION PROCEEDINGS AND SUPPORTED BY SUBSTANTIAL
EVIDENCE.  BUT WE CANNOT AVOID THE IMPACT OF RECENT EVENTS IN ASSESSING
THE PROPRIETY OF THE DECREE THAT THAT COURT HAS ENTERED.  SEE UNITED
STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 445.  AND THOSE EVENTS
MAKE IT POSSIBLE THAT THIS ASPECT OF THE REORGANIZATION COURT'S DECREE
MAY BE WHOLLY UNREALISTIC. 

THE FAIRNESS AND EQUITY THAT ARE THE ESSENCE OF A SEC. 77 PROCEEDING
FORBID OUR APPROVAL OF A PAYMENT FOR THE TRANSFERRED NEW HAVEN
PROPERTIES THAT MAY BE WORTH ONLY A FRACTION OF ITS PURPORTED VALUE. 
AND THE SAME CONSIDERATIONS OF FAIRNESS AND EQUITY PREVENT IMPOSING ON
PENN CENTRAL THE BURDEN OF IMMEDIATE PAYMENT IN FULL, PARTICULARLY WHEN
IT IS REMEMBERED THAT THE NEW HAVEN BONDHOLDERS HAVE NEVER OBJECTED TO
THE RECEIPT OF PENN CENTRAL STOCK IN EXCHANGE FOR THE NEW HAVEN
ASSETS. 

ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CONNECTICUT DISTRICT
COURT INSOFAR AS IT DETERMINES THAT AN INTRINSIC VALUE OF $87.50
INHERES IN THE PENN CENTRAL COMMON STOCK AND IMPLEMENTS AN UNDERWRITING
PLAN TO SECURE PAYMENT OF THAT SUM.  FURTHER PROCEEDINGS BEFORE THE
COMMISSION AND THE APPROPRIATE FEDERAL COURTS WILL BE NECESSARY TO
DETERMINE THE FORM THAT PENN CENTRAL'S CONSIDERATION TO NEW HAVEN
SHOULD PROPERLY TAKE AND THE STATUS OF THE NEW HAVEN ESTATE AS A
SHAREHOLDER OR CREDITOR OF PENN CENTRAL. 

        V 

WE TURN FINALLY TO THE CONTENTION OF THE BONDHOLDERS THAT QUITE
APART FROM THE SPECIFIC ITEMS THAT TOGETHER GO TO MAKE UP THE PRICE TO
BE PAID FOR THE NEW HAVEN ASSETS, THE PLAN OF REORGANIZATION ITSELF IS
NOT ONLY UNFAIR AND INEQUITABLE UNDER THE BANKRUPTCY ACT BUT VIOLATES
THE FIFTH AMENDMENT AS A TAKING OF PROPERTY WITHOUT JUST COMPENSATION. 

THE PURCHASE PRICE THAT THE COMMISSION AND THE REORGANIZATION COURT
HAVE REQUIRED PENN CENTRAL TO PAY TO THE NEW HAVEN ESTATE IS BASED UPON
THE LIQUIDATION VALUE OF THE SELLER'S ASSETS, APPRAISED AS OF DECEMBER
31, 1966.  THAT PRICE HYPOTHESIZES A SHUTDOWN OF NEW HAVEN FOLLOWED BY
A SELL-OFF OF ITS ASSETS AT THEIR HIGHEST AND BEST VALUE.  IN THE
CIRCUMSTANCES OF THIS CASE, AND FOR THE REASONS WE HAVE ALREADY SET OUT
AT LENGTH, WE AGREE WITH THE REORGANIZATION COURT THAT IT WOULD BE
UNFAIR AND INEQUITABLE TO ALLOW PENN CENTRAL TO TAKE THE PROPERTIES FOR
ANY LESSER SUM.  MOREOVER, WE TODAY REQUIRE A REASSESSMENT OF THE
CONSIDERATION THAT PENN CENTRAL IS TO GIVE IN EXCHANGE FOR THOSE
PROPERTIES.  WE THEREBY ACCORD THE BONDHOLDERS THE RIGHT TO A
LIQUIDATION AND A PER-PARCEL SALE THAT IS THEIRS BY VIRTUE OF THEIR
MORTGAGE LIENS.  THE BANKRUPTCY ACT DOES NOT REQUIRE THAT THEY BE GIVEN
MORE.  NOR IS IT NECESSARY TO CONSIDER THE BONDHOLDERS' CLAIM THAT
ANYTHING LESS THAN FULL LIQUIDATION VALUE WOULD AMOUNT TO AN
UNCOMPENSATED TAKING IN VIOLATION OF THE FIFTH AMENDMENT. 

BUT THE BONDHOLDERS COMMITTEE PRESSES ANOTHER FIFTH AMENDMENT
ARGUMENT.  IT POINTS TO THE COMMISSION'S OWN FINDING THAT FROM THE
INCEPTION OF THE NEW HAVEN REORGANIZATION THROUGH 1968 THE DEBTOR'S
ESTATE HAD AMASSED MORE THAN $70,000,000 IN ADMINISTRATIVE AND
PREBANKRUPTCY CLAIMS THAT TAKE PRIORITY OVER THE BONDHOLDERS' LIENS. 
FOURTH SUPPLEMENTAL REPORT, 334 I.C.C.,AT 126.  THE REORGANIZATION
COURT ITSELF NOTED THAT "'LOSSES REASONABLY INCIDENT TO WORKING OUT THE
SOLUTION MOST CONSISTENT WITH THE PUBLIC INTEREST' (HAVE) ERODED THE
DEBTOR'S ESTATE IN EXCESS OF $60 MILLION."  304 F.SUPP.,AT 800. 
(FOOTNOTE OMITTED.)  ALTHOUGH THE EXTENT TO WHICH THE ONGOING DEFICIT
OPERATION HAS IMPAIRED THE BONDHOLDERS' SECURITY IS UNCLEAR, IT IS
UNDENIABLE THAT THE CONTINUED OPERATION OF THE RAILROAD INTO THE LATE
1960'S, TOGETHER WITH THE LEGAL UNCERTAINTIES ENGENDERED BY THE
DOUBTFUL FUTURE OF THE COMPANY, HAVE GREATLY DEPRESSED THE VALUE OF THE
BONDHOLDERS' INTERESTS.  CF. PENN-CENTRAL MERGER CASES, 389 U.S.,AT
509.  /82/ 

A SEC. 77 REORGANIZATION COURT MAY NOT, OF COURSE, DISREGARD A CLAIM
THAT INJURIOUS CONSEQUENCES WILL RESULT TO A SECURED CREDITOR FROM THE
SUSPENSION OF THE RIGHT TO ENFORCE HIS LIEN AGAINST THE PROPERTY OF A
DEBTOR.  THAT CLAIM, HOWEVER, "PRESENTS A QUESTION ADDRESSED NOT TO THE
POWER OF THE COURT BUT TO ITS DISCRETION-- A MATTER NOT SUBJECT TO THE
INTERFERENCE OF AN APPELLATE COURT UNLESS SUCH DISCRETION BE
IMPROVIDENTLY EXERCISED."  CONTINENTAL ILLINOIS NATIONAL BANK & TRUST
CO. V. CHICAGO, R.I. & P.R. CO., 294 U.S. 648, 677.  HERE THE
REORGANIZATION COURT RECOGNIZED ITS DUTIES UNDER THE BANKRUPTCY ACT AND
THE CONSTITUTION.  IN AUGUST 1968 IT RULED AS FOLLOWS: 

"IN VIEW OF THE HISTORY OF THIS DEFICIT OPERATION FROM THE TIME OF
THE FILING OF THE PETITION UNDER SEC. 77 AND EVEN BEFORE, THE SIZE OF
THE LOSSES, THE LONG PERIOD OF TIME NECESSARILY INVOLVED IN SEEKING TO
WORK OUT A SOLUTION, SHORT OF LIQUIDATION, THROUGH INCLUSION IN THE
PENN-CENTRAL, THE PRESENT CONDITION OF THE RAILROAD AND THE RATE OF
LOSS AND OUT-FLOW OF CASH IN THE RECENT PAST AND IN THE FORESEEABLE
FUTURE, THIS COURT FINDS THAT THE CONTINUED EROSION OF THE DEBTOR'S
ESTATE FROM OPERATIONAL LOSSES AFTER THE END OF 1968 WILL CLEARLY
CONSTITUTE A TAKING OF THE DEBTOR'S PROPERTY AND CONSEQUENTLY THE
INTERESTS OF THE BONDHOLDERS, WITHOUT JUST COMPENSATION.  IT IS
THEREFORE CONSTITUTIONALLY IMPERMISSIBLE, AND OBVIOUSLY NO
REORGANIZATION PLAN WHICH CALLS FOR SUCH A TAKING CAN BE APPROVED." 
289 F.SUPP.,AT 459. 

WE DO NOT DOUBT THAT THE TIME CONSUMED IN THE COURSE OF THE
PROCEEDINGS IN THE REORGANIZATION COURT HAS IMPOSED A SUBSTANTIAL LOSS
UPON THE BONDHOLDERS.  BUT IN THE CIRCUMSTANCES PRESENTED BY THIS
LITIGATION WE SEE NO CONSTITUTIONAL BAR TO THAT RESULT.  THE RIGHTS OF
THE BONDHOLDERS ARE NOT ABSOLUTE.  AS WE HAVE HAD OCCASION TO SAY
BEFORE, SECURITY HOLDERS 

"CANNOT BE CALLED UPON TO SACRIFICE THEIR PROPERTY SO THAT A
DEPRESSION-PROOF RAILROAD SYSTEM MIGHT BE CREATED.  BUT THEY INVESTED
THEIR CAPITAL IN A PUBLIC UTILITY THAT DOES OWE AN OBLIGATION TO THE
PUBLIC.  . . . (BY THEIR ENTRY INTO A RAILROAD ENTERPRISE, (THEY)
ASSUMED THE RISK THAT IN ANY DEPRESSION OR ANY REORGANIZATION THE
INTERESTS OF THE PUBLIC WOULD BE CONSIDERED AS WELL AS THEIRS." 
RECONSTRUCTION FINANCE CORP. V. DENVER & R.G.W.R. CO., 328 U.S. 495,
535-536.  ONLY TWO TERMS AGO, WHEN WE LAST CONSIDERED THE PENN CENTRAL
MERGER, WE QUOTED APPROVINGLY THE COMMISSION'S STATEMENT THAT "(IT IS A
FUNDAMENTAL ASPECT OF OUR FREE ENTERPRISE ECONOMY THAT PRIVATE PERSONS
ASSUME THE RISKS ATTACHED TO THEIR INVESTMENTS, AND THE NEW) HAVEN)
CREDITORS CAN EXPECT NO LESS BECAUSE THE NEW) HAVEN)'S PROPERTIES ARE
DEVOTED TO A PUBLIC USE."  PENN-CENTRAL MERGER CASES, 389 U.S.,AT 510. 
WE ADDED: 

"WHILE THE RIGHTS OF THE BONDHOLDERS ARE ENTITLED TO RESPECT, THEY
DO NOT COMMAND PROCRUSTEAN MEASURES.  THEY CERTAINLY DO NOT DICTATE
THAT RAIL OPERATIONS VITAL TO THE NATION BE JETTISONED DESPITE THE
AVAILABILITY OF A FEASIBLE ALTERNATIVE.  THE PUBLIC INTEREST IS NOT
MERELY A PAWN TO BE SACRIFICED FOR THE STRATEGIC PURPOSES OR PROTECTION
OF A CLASS OF SECURITY HOLDERS.  . . . "  ID., AT 510-511. 

IN THIS CONTEXT WE APPRAISE THE BONDHOLDERS' CLAIM THAT THE
CONTINUED OPERATION OF THE NEW HAVEN FROM THE INCEPTION OF THE
REORGANIZATION PROCEEDING IN 1961 TO THE INCLUSION IN PENN CENTRAL IN
1968 WORKED AN UNCONSTITUTIONAL TAKING OF THEIR PROPERTY.  THERE IS NO
LONGER ROOM FOR DISPUTE THAT THE BONDHOLDERS WILL RECEIVE THE HIGHEST
AND BEST PRICE FOR THE ASSETS OF THE DEBTORS AS OF DECEMBER 31, 1966. 
THAT PRICE OF COURSE REFLECTS THE DEPRECIATION OF THE PROPERTIES AND
THE LOSSES INCURRED IN THE OPERATION OF THE RAILROAD FROM THE
COMMENCEMENT OF REORGANIZATION PROCEEDINGS UNDER SEC. 77 IN THE MIDDLE
OF 1961.  BUT THE BONDHOLDERS COMMITTEE DOES NOT TELL US WHAT THE
DEPRECIATION AND LOSSES ATTRIBUTABLE TO THE PREVALUATION PERIOD ARE. 
MOREOVER, NO BONDHOLDER FORMALLY PETITIONED THE REORGANIZATION COURT TO
DISMISS THE PROCEEDINGS AND THEREBY PERMIT A FORECLOSURE ON THE
MORTGAGE LIENS UNDER APRIL 1967-- WELL AFTER THE 1966 VALUATION DATE. 
/83/ 

NOR CAN PENN CENTRAL BE HELD LIABLE FOR THE FURTHER DECLINE IN NEW
HAVEN'S VALUE FROM THE VALUATION DATE TO THE ACTUAL INCLUSION.  THE NEW
COMPANY DID NOT EVEN COME INTO EXISTENCE UNTIL MIDWAY THROUGH THAT
PERIOD, AND FROM THE POINT OF ITS OWN CREATION UNTIL IT TOOK IN THE NEW
HAVEN, IT CONTRIBUTED SUBSTANTIALLY TO RECOMPENSE THE DEBTOR FOR ITS
OPERATING LOSSES.  MOREOVER, THE FAILURE OF THE BONDHOLDERS TO PRESS
FOR EARLY LIQUIDATION OF THE NEW HAVEN MEANT THAT THEIR INITIAL
APPLICATION FOR A DISMISSAL OF THE REORGANIZATION PROCEEDINGS CAME JUST
AS THE OBJECTIVE OF SALVAGING THE NEW HAVEN APPEARED POSSIBLE TO
ACHIEVE.  AS THE REORGANIZATION COURT NOTED, ONLY TWO OF THE SEVERAL
BONDHOLDER GROUPS MADE THAT INITIAL APPLICATION; IT WAS NOT JOINED BY
THE TRUSTEES, NOR WAS IT ENDORSED BY OTHER REPRESENTATIVES OF THE
BONDHOLDERS AND CREDITORS; AND IT CAME JUST AS THE COMMISSION WAS ABOUT
TO CERTIFY A FEASIBLE PLAN OF REORGANIZATION TO THE COURT.  "TO
JETTISON EVERYTHING ACHIEVED AND TURN BACK JUST AS A GLIMMER OF LIGHT
BEGINS TO SHOW AT THE END OF A LONG DARK TUNNEL," SAID THE COURT, "NOT
ONLY CARRIES WITH IT AN AURA OF UNREALITY BUT BORDERS ON THE
FANTASTIC."  IN RE NEW YORK, N.H. & H.R. CO., 281 F.SUPP.,AT 68. 

ON THE OTHER HAND, WE MUST ALSO REJECT ANY LINGERING SUGGESTION BY
PENN CENTRAL THAT THE PRICE IT MUST PAY FOR THE NEW HAVEN ASSETS IS
UNFAIR IN EITHER A STATUTORY OR A CONSTITUTIONAL SENSE.  AT FIRST
GLANCE THERE IS A SEEMING ANOMALY IN THE REQUIREMENT THAT PENN CENTRAL
PAY A LIQUIDATING VALUE FOR PROPERTY IT MUST OPERATE AT A LOSS.  BUT IT
IS NOT CORRECT TO SAY THAT NEW HAVEN'S RIGHT TO LIQUIDATE IS
INCONSISTENT WITH PENN CENTRAL'S OBLIGATION TO OPERATE, OR THAT IF THE
NEW HAVEN'S CREDITORS HAD SUCH A RIGHT, PENN CENTRAL MUST HAVE IT AS
WELL.  THE BONDHOLDERS HAD THE RIGHT BY FORCE OF THEIR STATE-CREATED
LIENS UNDER THE NEW HAVEN'S MORTGAGE OBLIGATIONS.  PENN CENTRAL HAD NO
SUCH RIGHT, BECAUSE ITS MERGER WAS EXPRESSLY CONDITIONED ON ITS
ASSUMPTION OF RESPONSIBILITY FOR CONTINUED NEW HAVEN SERVICE.  THERE
WAS NOTHING INEQUITABLE IN AN ARRANGEMENT THAT PERMITTED THE
BONDHOLDERS TO RECOVER THE VALUE OF THEIR LIENS ON THE PROPERTY OF THE
DEBTOR AT THE SAME TIME THAT IT REQUIRED PENN CENTRAL TO PAY THAT VALUE
IN EXCHANGE FOR THE NEARLY $1,000,000,000 WORTH OF BENEFITS THAT THE
MERGER WAS THEN ANTICIPATED TO PRODUCE. 

AS THE COMMISSION SAID AT THE TIME OF ITS SECOND SUPPLEMENTAL
REPORT, "CALLING UPON PENN-CENTRAL TO PAY MORE THAN THE NEW) HAVEN) IS
WORTH AS A GOING CONCERN IS NOT UNREASONABLE WITHIN THE MEANING OF
SUBSTANTIAL DOLLAR SAVINGS TO THE MERGER APPLICANTS) WAS APPROVED WITH
THE THOUGHT THAT SOME OF THE MERGER SAVINGS WOULD BE AVAILABLE
SPECIFICALLY TO WARD OFF A LIQUIDATION AND SHUTDOWN OF THE NEW) HAVEN)
SO THAT ADEQUATE TRANSPORTATION SERVICE WOULD REMAIN AVAILABLE TO THE
PUBLIC WHICH NOW RELIES ON THE NEW) HAVEN)."  331 I.C.C.,AT 687-688. 

THE REORGANIZATION COURT MADE THE POINT WITH CLARITY AND FORCE: 

"THE WHOLE PURPOSE OF MAKING THE INCLUSION OF THE NEW HAVEN A
CONDITION OF THE MERGER WAS TO REQUIRE PENN-CENTRAL, WHICH, IN BEING
PERMITTED TO MERGE, WAS GRANTED THE OPPORTUNITY TO REALIZE TREMENDOUS
ECONOMIC BENEFITS, TO TAKE OVER AND OPERATE A HELPLESSLY SICK BUT STILL
NEEDED RAILROAD, WHICH IT COULD WELL AFFORD TO DO.  IT IS PART OF THE
PRICE PENN-CENTRAL IS CALLED UPON TO PAY FOR THE RIGHT TO MERGE.  THE
RIGHT TO MERGE WAS GRANTED, THE MERGER HAS TAKEN PLACE, AND THE PRICE
SHOULD BE PAID."  289 F.SUPP.,AT 465-466. 

FOR THE REASONS STATED IN THIS OPINION, THE JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT, REVIEWED ON
WRITS OF CERTIORARI IN NOS. 914, 916, 920, 1038, AND 1057, IS AFFIRMED
IN PART AND VACATED AND REMANDED IN PART.  THE JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, APPEALED
FROM IN NOS. 915, 917, AND 921 IS VACATED, AND THOSE CASES ARE REMANDED
WITH INSTRUCTIONS TO ABSTAIN PENDING THE FURTHER PROCEEDINGS BEFORE THE
INTERSTATE COMMERCE COMMISSION AND THE REVIEWING COURTS UNDER SEC. 77
OF THE BANKRUPTCY ACT. 

         IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THESE CASES. 

MR. JUSTICE MARSHALL AND MR. JUSTICE BLACKMUN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

/1/  NO. 915, NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. FIRST
MORTGAGE 4% BONDHOLDERS COMMITTEE V. UNITED STATES ET AL., NO. 917,
MANUFACTURERS HANOVER TRUST CO., TRUSTEE V. UNITED STATES ET AL., AND
NO. 921, CHASE MANHATTAN BANK, N.A., TRUSTEE V. UNITED STATES ET AL.,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK.  NO. 914, NEW YORK, NEW HAVEN & HARTFORD RAILROAD
CO. FIRST MORTGAGE 4% BONDHOLDERS COMMITTEE V. SMITH, TRUSTEE, ET AL.,
NO. 916, MANUFACTURERS HANOVER TRUST CO., TRUSTEE V. UNITED STATES ET
AL., NO. 920, CHASE MANHATTAN BANK, N.A., TRUSTEE V. PENN CENTRAL CO.
ET AL., NO. 1038, PENN CENTRAL CO. V. MANUFACTURERS HANOVER TRUST CO.,
TRUSTEE, ET AL., AND NO. 1057, UNITED STATES ET AL. V. NEW YORK, NEW
HAVEN & HARTFORD RAILROAD CO. FIRST MORTGAGE 4% BONDHOLDERS COMMITTEE
ET AL., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT IN ADVANCE OF JUDGEMENT. 

/1A/  ON JUNE 21, 1970, THE PENN CENTRAL TRANSPORTATION COMPANY
FILED A PETITION FOR REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY
ACT, 11 U.S.C. 205, IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA.  WHETHER THE FINANCIAL OBLIGATIONS DEALT WITH
IN THE PRESENT OPINION MAY BECOME SUBJECT TO MODIFICATION IN OR BECAUSE
OF THOSE PROCEEDINGS IS A QUESTION WITH WHICH THE PRESENT OPINION IN NO
WAY DEALS. 

/1B/  SEE PENN-CENTRAL MERGER CASES, 389 U.S.,AT 494; BALTIMORE &
OHIO R. CO. V. UNITED STATES, 386 U.S. 372, 379. 

/2/  PENNSYLVANIA R. CO.-- MERGER-- NEW YORK CENTRAL R. CO., 327
I.C.C. 475, 479 ("MERGER REPORT"). 

/3/ IBID. 

/4/  BALTIMORE & OHIO R. CO. V. UNITED STATES, 386 U.S.,AT 392. 

/5/  PENN-CENTRAL MERGER CASES, 389 U.S.,AT 493. 

/6/  IBID. 

/7/  BALTIMORE & OHIO R. CO. V. UNITED STATES, 386 U.S.,AT 380. 

/8/  MERGER REPORT, 327 I.C.C.,AT 489. 

/9/  BALTIMORE & OHIO R. CO. V. UNITED STATES, 386 U.S.,AT 447
(SEPARATE OPINION OF DOUGLAS, J.). 

/10/  PENN-CENTRAL MERGER CASES, 389 U.S.,AT 493; MERGER REPORT, 327
I.C.C.,AT 501. 

/11/  AS PART OF ITS INITIAL MERGER ORDER, THE COMMISSION HAD
PRESCRIBED SPECIFIC TRAFFIC AND INDEMNITY PROVISIONS FOR THE BENEFIT OF
THE DELAWARE & HUDSON, BOSTON & MAINE, AND ERIE-LACKAWANNA RAILROADS. 
THE COMMISSION HAD NOT YET DETERMINED WHETHER THOSE THREE "PROTECTED
CARRIERS" SHOULD BE INCLUDED IN EITHER PENN CENTRAL OR THE RECENTLY
FORMED NORFOLK & WESTERN, BUT CONCLUDED THEY REQUIRED SHELTERING
CONDITIONS IF THEY WERE TO SURVIVE THE INTERIM PERIOD PENDING DECISION
AS TO THEIR ULTIMATE DISPOSITION.  MERGER REPORT, 327 I.C.C.,AT 531
532.  ON SEPTEMBER 16, 1966, FOLLOWING OBJECTIONS TO THE INITIAL ORDER
FROM VARIOUS PARTIES, THE COMMISSION ABROGATED THE INDEMNITY PROVISIONS
ORIGINALLY PRESCRIBED FOR THE PROTECTED CARRIERS AND ANNOUNCED IT WOULD
RECONSIDER ITS EARLIER DECISION, WITH POSSIBLE MODIFICATIONS TO BE
GIVEN RETROACTIVE EFFECT.  PENNSYLVANIA R. CO.-- MERGER-- NEW YORK
CENTRAL R. CO., 328 I.C.C. 304 ("RECONSIDERATION REPORT").  ON OCTOBER
4, 1966, A THREE-JUDGE DISTRICT COURT IN THE SOUTHERN DISTRICT OF NEW
YORK DECLINED, ONE JUDGE DISSENTING, TO ENJOIN ENFORCEMENT OF THE
COMMISSION'S ORDER.  ERIE-LACKAWANNA R. CO. V. UNITED STATES, 259
F.SUPP.  964.  LATER, THE DISTRICT COURT DENIED INJUNCTIVE RELIEF
SOUGHT BY BONDHOLDERS OF THE NEW HAVEN RAILROAD.  OSCAR GRUSS & SON V.
UNITED STATES, 261 F.SUPP.  386.  ON MARCH 27, 1967, THIS COURT
REVERSED AND REMANDED ERIE-LACKAWANNA WITH INSTRUCTIONS THAT THE
COMMISSION COMPLETE ITS PROCEEDINGS RELATING TO THE PROTECTED ROADS. 
BALTIMORE & OHIO R. CO. V. UNITED STATES, 386 U.S. 372.  WE LATER
VACATED AND REMANDED OSCAR GRUSS FOR RECONSIDERATION IN LIGHT OF
BALTIMORE & OHIO, 386 U.S. 776.  ENSUING DEVELOPMENTS ARE RECOUNTED IN
THE TEXT. 

/12/  PENNSYLVANIA R. CO.-- MERGER-- NEW YORK CENTRAL R. CO., 330
I.C.C. 328 ("FIRST SUPPLEMENTAL REPORT"). 

/13/  ERIE-LACKAWANNA R. CO. V. UNITED STATES, 279 F.SUPP.  316. 

/14/  PENN-CENTRAL MERGER CASES, 389 U.S. 486. 

/15/  BALTIMORE & OHIO R. CO. V. UNITED STATES, 386 U.S.,AT 381; NEW
YORK, N.H. & H.R. CO. TRUSTEES DISCONTINUANCE OF PASSENGER SERVICE, 327
I.C.C. 77, 79-80 ("SUBURBAN DISCONTINUANCE CASE"). 

/16/  NEW YORK, N.H. & H.R. CO., TRUSTEES, DISCONTINUANCE OF ALL
INTERSTATE PASSENGER TRAINS, 327 I.C.C. 151, 163 ("INTERSTATE
DISCONTINUANCE CASE"). 

/17/  ID., AT 163-164. 

/18/  ID., AT 169.     /19/  SUBURBAN DISCONTINUANCE CASE, 327
I.C.C.,AT 80. 

/20/  SEE GENERALLY BALTIMORE & OHIO R. CO. V. UNITED STATES, 386
U.S.,AT 452-454 (SEPARATE OPINION OF DOUGLAS, J.); L. BRANDEIS,
FINANCIAL CONDITION OF THE NEW YORK, NEW HAVEN & HARTFORD RAILROAD
COMPANY AND OF THE BOSTON & MAINE RAILROAD (1907); L. BRANDEIS, OTHER
PEOPLE'S MONEY 129-136 (1933); REPORT OF THE JOINT NEW ENGLAND RAILROAD
COMMITTEE TO THE GOVERNORS OF THE NEW ENGLAND STATES 53-73 (1923); E.
SUNDERLAND, A BRIEF HISTORY OF THE REORGANIZATION OF THE NEW YORK, NEW
HAVEN AND HARTFORD RAILROAD COMPANY 1-5 (1948); CAPTURE OF THE NEW
HAVEN, FORTUNE MAGAZINE, APRIL 1949, P. 86 ET SEQ.     /21/  SEE IN RE
NEW YORK, N.H. & H.R. CO., 169 F.2D 337, 338 N. 6, CERT. DENIED SUB
NOM. MULCAHY V. NEW YORK, N.H. & H.R. CO., 335 U.S. 867. 

/22/  SEE IN RE NEW YORK, N.H. & H.R. CO., 378 F.2D 635, 640. 

/23/  COMMISSION OF DEPARTMENT OF PUBLIC UTILITIES V. NEW YORK, N.H.
& H.R. CO., 178 F.2D 559, CERT. DENIED, 339 U.S. 943; IN RE NEW YORK,
N.H. & H.R. CO., 163 F.SUPP.  59. 

/24/  IN RE NEW YORK, N.H. & H.R. CO., 278 F.SUPP.  592, 606, AFF'D,
405 F.2D 50, CERT. DENIED SUB NOM. ABEX CORP. V. TRUSTEES, 394 U.S.
999. 

/25/  278 F.SUPP.,AT 606. 

/26/  ID., AT 601. 

/27/  IN RE NEW YORK, N.H. & H.R. CO., 289 F.SUPP.  451, 456; IN RE
NEW YORK, N.H. & H.R. CO., 281 F.SUPP.  65. 

/28/  IN RE NEW YORK, N.H. & H.R. CO., 278 F.SUPP.,AT 606. 

/29/  IN RE NEW YORK, N.H. & H.R. CO., 405 F.2D, AT 52. 

/30/  IN RE NEW YORK, N.H. & H.R. CO., 281 F.SUPP.,AT 65-66. 

/31/  SUBURBAN DISCONTINUANCE CASE, 327 I.C.C.,AT 79, 80, 106. 

/32/  BY THIS TIME THE RAILROAD'S FREIGHT OPERATIONS WERE ALSO
OPERATING AT DEFICIT LEVELS.  THE COMMISSION EXPLAINED THIS ASPECT OF
THE PROBLEM AS FOLLOWS: 

"SOUTHERN NEW ENGLAND IS A DEFICIT AREA IN TERMS OF FOOD, FUEL, AND
THE RAW MATERIALS FOR INDUSTRY.  ACCORDINGLY, IN SERVING THIS ECONOMY,
THE NEW HAVEN IS A SHORT HAUL RAILROAD WITH A HEAVILY UNBALANCED FLOW
OF TRAFFIC AND EQUIPMENT.  AS A TERMINAL RAILROAD IT FACES THE CONSTANT
PROBLEMS AND ADDED COSTS OF SWITCHING AND DEADHEADING FOREIGN LINE
FREIGHT CARS TO MOVE THEM BACK OFF ITS OWN LINES.  MOREOVER, AS A
RESULT OF NATIONAL AND REGIONAL ECONOMIC AND INDUSTRIAL SHIFTS, NEW
ENGLAND'S OUTBOUND PRODUCTS HAVE BECOME INCREASINGLY HIGH-VALUE AND
LIGHT-WEIGHT IN CHARACTER.  WITH THE EXPANSION IN THE REGION OF A
MODERN, COMPREHENSIVE HIGHWAY SYSTEM DURING THE PAST 20 YEARS, THIS
OUTBOUND FREIGHT TRAFFIC HAS BECOME ESPECIALLY SUSCEPTIBLE TO DIVERSION
FROM RAIL TO PRIVATE AND FOR-HIRE TRUCKING SERVICE."  INTERSTATE
DISCONTINUANCE CASE, 327 I.C.C.,AT 170. 

/33/  ID., AT 164. 

/34/  SEE ID., AT 175 

/35/  SEE MERGER REPORT, 327 I.C.C.,AT 488 

/36/  INTERSTATE DISCONTINUANCE CASE, 327 I.C.C.,AT 152. 

/37/  ID., AT 172, 173. 

/38/  PENN CENTRAL MERGER CASES, 389 U.S.,AT 507. 

/39/  IN RE NEW YORK, N.H. & H.R. CO., 281 F.SUPP.  65. 

/40/  IN RE NEW YORK, N.H. & H.R CO., 278 F.SUPP.,AT 602. 

/41/  SEE ERIE-LACKAWANNA R. CO. V. UNITED STATES, 279 F.SUPP.,AT
333.  THE THREE-JUDGE COURT, WRITING IN OCTOBER 1967, EXPRESSED FULL
AGREEMENT WITH THESE FINDINGS: 

"NO ONE HAS CONTESTED THE FORECAST OF THE NH TRUSTEES THAT THEIR
CASH WILL RUN OUT AT THE END OF 1967; NO ONE HAS INDICATED ANY PROBABLE
SOURCE OF FUNDS FOR THAT BELEAGUERED PROPERTY OTHER THAN THE MERGED
PENN-CENTRAL.  . . . FOR OUR PART WE ARE UNWILLING TO TAKE
RESPONSIBILITY FOR SUCH DEVASTATING HARDSHIP AS EVEN A TEMPORARY
CESSATION OF NH'S OPERATIONS WOULD BRING TO NEW ENGLAND AND NEW YORK
AND IN A LESSER DEGREE TO OTHER SECTIONS OF THE COUNTRY WHEN IN OUR
VIEW THERE IS NO REASON WHY THE MERGER SHOULD NOT PROCEED; INDEED WE
BELIEVE WE HAVE NO RIGHT TO DO SO. . . . " 279 F.SUPP.,AT 355.  "(WITH
THE SITUATION NOW SO SERIOUS, THERE CAN HARDLY BE DOUBT THAT IT IS
BETTER TO ACCEPT WHAT IS GOOD FOR THE NEW HAVEN THAN PERMIT THE PATIENT
TO DIE WHILE IN QUEST OF THE BEST."  ID., AT 335. 

/42/  PENNSYLVANIA R. CO.-- MERGER-- NEW YORK CENTRAL R. CO., 331
I.C.C. 643, 651 ("SECOND SUPPLEMENTAL REPORT"). 

/43/  IBID. 

/44/  ID., AT 653. 

/45/  THE TRANSFER WAS TO BE FREE AND CLEAR OF ALL LIENS AND
ENCUMBRANCES, WITH CERTAIN MINOR EXCEPTIONS.  THE LIENS AND
ENCUMBRANCES WOULD SHIFT TO THE PROCEEDS OF THE SALE AND THUS REMAIN AN
OBLIGATION OF THE NEW HAVEN ESTATE. 

BY NEGOTIATING A PURCHASE AND SALE OF THE NEW HAVEN ASSETS, THE
PARTIES TO THE AGREEMENT ELECTED NOT TO ATTEMPT A RECAPITALIZATION OF
NEW HAVEN, AN ENLARGED MERGER THAT WOULD BRING NEW HAVEN INTO THE PENN
CENTRAL SYSTEM AS A CORPORATE ENTITY, OR A LEASE OF THE NEW HAVEN
OPERATING ASSETS.  AT ONE POINT, WHEN IT APPEARED THE NEW HAVEN MIGHT
NOT LONG SURVIVE, THE COMMISSION HAD DIRECTED THE PARTIES TO NEGOTIATE
A LEASE TO BE "IMMEDIATELY AVAILABLE UPON CONSUMMATION OF THE PENN
CENTRAL MERGER," BUT THE NEGOTIATORS REPORTED THEY WERE UNABLE TO DO SO
AND INSTEAD SUGGESTED VARIOUS LOAN-LOSS FORMULAS.  PENN-CENTRAL MERGER
CASES, 389 U.S.,AT 508; ERIE-LACKAWANNA R. CO. V. UNITED STATES, 279
F.SUPP.,AT 334; SECOND SUPPLEMENTAL REPORT, 331 I.C.C.,AT 648. 

/46/  SUBSEQUENT MODIFICATIONS TO THE AGREEMENT WERE EXECUTED
OCTOBER 4, 1966, AND DECEMBER 20, 1967. 

THE BONDHOLDERS WERE NOT BOUND BY THE TRUSTEE'S ACCEPTANCE OF THE
PURCHASE AGREEMENT.  THE TRUSTEES ACTED ON BEHALF OF THE DEBTOR,
SUBJECT TO THE DIRECTIVE OF THE REORGANIZATION COURT, BUT THEY NEVER
SUBMITTED THE AGREEMENT TO THAT COURT FOR ITS APPROVAL.  MOREOVER, THEY
HAD STIPULATED WITH PENNSYLVANIA AND CENTRAL THAT THEY WOULD NOT
CHALLENGE THE TERMS OF THE PURCHASE AGREEMENT.  THE PRELIMINARY
MEMORANDA NEGOTIATED BETWEEN THE TRUSTEES AND THE TWO RAILROADS
CONTAINED A PROVISION, SUBSTANTIALLY EMBODIED IN SEC. 11.7 OF THE
AGREEMENT ITSELF, THAT NEW HAVEN WOULD NOT MAKE OR FILE. 

"ANY FURTHER STATEMENT, STIPULATION OR OTHER DOCUMENT IN THE PENDING
PENNSYLVANI-CENTRAL MERGER PROCEEDINGS BEFORE THE I.C.C.. . . , OR ANY
JUDICIAL REVIEW THEREOF, OTHER THAN IN CONNECTION WITH (A) A POSITION
RELATING TO THE NEW HAVEN TAKEN BY ANY OTHER PARTY . . . , OR (B) A
FAILURE OF THE I.C.C. TO FIND EITHER (I) THAT THE NEW HAVEN SHOULD BE
INCLUDED IN SUCH MERGER OR (II) THAT JURISDICTION IS TO BE RETAINED BY
THE I.C.C. FOR LATER DETERMINATION OF ANY PETITION BY THE NEW HAVEN FOR
SUCH INCLUSION, PROVIDED, HOWEVER, THAT ANY SUCH STATEMENT, STIPULATION
OR OTHER DOCUMENT MADE OR FILED BY THE TRUSTEES SHALL NOT BE
INCONSISTENT WITH THE PROVISIONS AND INTENT OF THIS AGREEMENT." 

THE REORGANIZATION COURT SUGGESTED THAT THE BONDHOLDERS RATHER THAN
THE TRUSTEES PRESS FOR EARLY INCLUSION DUE TO THE IMPROPRIETY OF THE
TRUSTEES' TAKING "ANY ACTION WHICH WOULD BE OR APPEAR TO BE A
REPUDIATION OF (THE CONTRACT'S) LETTER OR SPIRIT."  SEE ERIE-LACKAWANNA
R. CO. V. UNITED STATES, 279 F.SUPP.,AT 333; AND SEE OSCAR GRUSS & SON
V. UNITED STATES, 261 F.SUPP.,AT 393-394. 

/47/  THE REORGANIZATION COURT HAD AUTHORIZED THE NEW HAVEN TRUSTEES
TO PURSUE A "TWO-STEP" PLAN BEFORE THE COMMISSION, IN WHICH THE
DEBTOR'S ESTATE WOULD SELL ITS ASSETS TO PENN CENTRAL AND THEN THE
TRUSTEES WOULD FILE A SPECIFICATION OF THE TERMS TO BE ACCORDED THE
SECURITY HOLDERS.  IN 1967, THE COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMED THE DISTRICT COURT'S AUTHORIZATION ORDER WITH CERTAIN
MODIFICATIONS NOT HERE PERTINENT, POSTPONING CONSIDERATION OF THE
MERITS OF THE "TWO-STEP" PLAN BECAUSE OF THE PREMATURITY OF THE
QUESTION AS THEN PRESENTED.  IN RE NEW YORK, N.H. & H.R. CO., 378 F.2D
635, 639.  PURSUANT TO THE PLAN OF REORGANIZATION, THE NEW HAVEN IS TO
BE RECONSTITUTED AS A CLOSED-END, NONDIVERSIFIED MANAGEMENT INVESTMENT
COMPANY.  SEE PENNSYLVANIA R. CO.-- MERGER-- NEW YORK CENTRAL R. CO.,
334 I.C.C. 25, 93 ("FOURTH SUPPLEMENTAL REPORT").  THE REORGANIZATION
COURT HAS WITHHELD DISPOSITION OF THE SECOND OR "DISTRIBUTIVE" STEP OF
THE PLAN PENDING THIS COURT'S RESOLUTION OF THE . QUESTION OF PRICE. 
IN RE NEW YORK, N.H. & H.R. CO., 304 F.SUPP.  1121, 1123-1124. 

/48/  THE UNITED STATES TRUST COMPANY, AS INDENTURE TRUSTEE UNDER
THE NEW HAVEN'S HARLEM RIVER DIVISION MORTGAGE, HAD BEEN ONE OF THE
BONDHOLDER PLAINTIFFS ON THE FIRST ROUND.  AT THE SUGGESTION OF THE
REORGANIZATION COURT, 289 F.SUPP.,AT 464, IT RECEIVED RECOGNITION OF
ITS SECURED STATUS ON THE REMAND, WHEN THE COMMISSION DIRECTED PENN
CENTRAL TO ASSUME THE DIVISION BONDS.  334 I.C.C.,AT 70.  THE TRUSTEE
SOUGHT NO FURTHER REVIEW. 

/49/  IN A FIFTH SUPPLEMENTAL REPORT, DECIDED JULY 10, 1969, AND
MODIFIED AUGUST 26, 1969, THE COMMISSION COMPLIED WITH THE DIRECTIVE OF
THE THREE-JUDGE COURT TO PREPARE AND SERVE A PROPOSED DECREE REFLECTING
THE CHANGES ORDERED IN THAT COURT'S OPINION OF JUNE 18, 1969.  AFTER
MAKING THE REQUIRED ADJUSTMENTS, THE COMMISSION ORDERED PENN CENTRAL TO
PAY NEW HAVEN AN ADDITIONAL $990,000 IN STOCKS, BONDS, AND CASH IN THE
SAME RELATIVE PERCENTAGES AS PROVIDED IN THE FOURTH SUPPLEMENTAL
REPORT.  IN ADDITION, THE COMMISSION CALLED UPON THE PARTIES TO SUBMIT
PROPOSED TERMS OF A DETAILED DECREE RELATING TO THE UNDERWRITING PLAN
ORIGINATED BY THE REORGANIZATION COURT AND ADOPTED BY THE THREE-JUDGE
COURT.  334 I.C.C. 528.  THE ORDER OF THE COMMISSION ACCOMPANYING THE
FIFTH SUPPLEMENTAL REPORT DOES NOT APPEAR TO HAVE UNDERGONE JUDICIAL
REVIEW.  AT ANY RATE, IT IS MOOT IN LIGHT OF THE ACTION WE TAKE TODAY
WITH RESPECT TO THE JUDGMENTS OF THE NEW YORK AND CONNECTICUT DISTRICT
COURTS RELATING TO THE SECOND AND FOURTH SUPPLEMENTAL REPORTS. 

/50/  AT THE SAME TIME WE AFFIRMED THE JUDGMENT OF THE THREE-JUDGE
COURT IN NO. 919, PROVIDENCE & WORCESTER CO. V. UNITED STATES, 396 U.S.
555, AND DENIED CERTIORARI IN NO. 918, PROVIDENCE & WORCESTER CO. V.
SMITH, 196 U.S. 1062.  IN THESE CASES, COMPANIONS TO THE MAIN
LITIGATION, THE PROVIDENCE & WORCESTER COMPANY SOUGHT PLENARY REVIEW OF
THE DISTRICT COURT'S ORDERS INSOFAR AS THEY HAD SUSTAINED THE
COMMISSION (1) IN REQUIRING PENN CENTRAL TO OPERATE ITS TRAINS OVER THE
PROVIDENCE &WORCESTER TRACKS AS A LEASED LINE UNDER THE CONDITIONS OF A
FORMER LONG-TERM LEASE TO NEW HAVEN, SUBJECT TO PENN CENTRAL'S RIGHT TO
COMMENCE AN ABANDONMENT PROCEEDING BEFORE THE COMMISSION UNDER SEC.
1(18) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 1(18), AND SUBJECT
FURTHER TO PROVIDENCE & WORCESTER'S SECURING A CHARTER REVISION TO
ELIMINATE VOTING RESTRICTIONS AGAINST PENN CENTRAL AS A PRINCIPAL
SHAREHOLDER; AND (2) IN LIMITING THE LIABILITY OF PENN CENTRAL WITH
RESPECT TO CERTAIN CLAIMS OF PROVIDENCE & WORCESTER, BOTH IN REM AND IN
PERSONAM, ARISING AGAINST THE NEW HAVEN PRIOR TO THE LATTER'S INCLUSION
IN PENN CENTRAL.  SEE MANUFACTURERS HANOVER TRUST CO. V. UNITED STATES,
300 F.SUPP.  185 (OPINION OF THREE-JUDGE COURT). 

/51/  A SIMILAR PROBLEM HAD PRESENTED ITSELF IN THE IMMEDIATELY
PRECEDING ROUND OF THE LITIGATION ARISING FROM THE MERGER.  THERE THE
COMMISSION'S ORDER HAD EMBRACED NOT ONLY THE PENN CENTRAL COMBINATION
AND THE TAKEOVER OF NEW HAVEN, BUT THE INCLUSION OF THE "PROTECTED
CARRIERS" IN THE NORFOLK & WESTERN SYSTEM AS WELL.  SEE N. 11, SUPRA.
DESPITE THE VARIETY OF ISSUES AND THE NUMBER OF PARTIES, THE CASES
EVENTUALLY CAME BEFORE A SINGLE DISTRICT COURT, AND THE DANGER OF
MULTIPLE LITIGATION IN SIX OR MORE DIFFERENT COURTS WAS AVOIDED.  SEE
ERIE-LACKAWANNA R. CO. V. UNITED STATES, 279 F.SUPP.,AT 323-324, AFF'D
SUB NOM.  PENN-CENTRAL MERGER CASES, 389 U.S.,AT 497 N. 2, 503, 505 N.
4.  EVEN EARLIER, WHEN THE COMMISSION HAD FIRST ORDERED INCLUSION OF
ALL NEW HAVEN SERVICE AS A CONDITION TO THE PENN CENTRAL MERGER, IT HAD
POINTED OUT THAT "SINCE NEW HAVEN IS IN BANKRUPTCY, ITS INCLUSION WILL
ENTAIL REORGANIZATION PROBLEMS UNDER SECTION 77 OF THE BANKRUPTCY ACT
WHICH MUST BE RESOLVED IN CONJUNCTION WITH ANY INCLUSION PROCEEDING
HEREIN."  MERGER REPORT, 327 I.C.C.,AT 525; SEE ALSO ID., AT 527; AND
SEE SECOND SUPPLEMENTAL REPORT, 331 I.C.C.,AT 652. 

/52/  CALLAWAY V. BENTON, 336 U.S. 132, 142; MEYER V. FLEMING, 327
U.S. 161, 164; THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478, 483;
CONTINENTAL ILLINOIS NATIONAL BANK & TRUST CO. V. CHICAGO, R.I. & P.R.
CO., 294 U.S. 648, 662; CF. EX PARTE BALDWIN, 291 U.S. 610, 615; ISAACS
V. HOBBS TIE & TIMBER CO., 282 U.S. 734, 737. 

/53/  CF. CONTINENTAL ILLINOIS NATIONAL BANK & TRUST CO. V. CHICAGO,
R.I. & P.R. CO., 294 U.S.,AT 676; VAN SCHAICK V. MCCARTHY, 116 F.2D
987.  992. 

/54/  IN CALLAWAY, THIS COURT STRESSED THE CONTROL THE
REORGANIZATION COURT HAS OVER THE DEBTOR'S PROPERTY, INCLUDING ANY
LEASEHOLD ESTATE:  "CLEARLY, CONTROL OF THE PHYSICAL PROPERTY MUST
REMAIN IN THE COURT WHICH HAS THE ULTIMATE RESPONSIBILITY FOR OPERATING
IT.  AND IN ORDER TO PROTECT THE ESTATE OF THE DEBTOR FROM DISSIPATION
THROUGH LOSSES SUFFERED IN THE OPERATION OF THE LESSOR'S PROPERTY,
RESPONSIBILITY FOR THE DETERMINATION OF THE AMOUNT OF THE LOSSES AND
PROVISION FOR THEIR RECOUPMENT FROM THE LESSOR WAS PROPERLY LODGED IN
THE COURT SUPERVISING THE REORGANIZATION OF THE DEBTOR."  336 U.S.,AT
144. 

/55/  SECTION 5(2)(D) PROVIDES: "THE COMMISSION SHALL HAVE AUTHORITY
IN THE CASE OF A PROPOSED (MERGER) TRANSACTION UNDER THIS PARAGRAPH
INVOLVING A RAILROAD OR RAILROADS, AS A PREREQUISITE TO ITS APPROVAL OF
THE PROPOSED TRANSACTION, TO REQUIRE, UPON EQUITABLE TERMS, THE
INCLUSION OF ANOTHER RAILROAD OR OTHER RAILROADS IN THE TERRITORY
INVOLVED, UPON PETITION BY SUCH RAILROAD OR RAILROADS REQUESTING SUCH
INCLUSION, AND UPON A FINDING THAT SUCH INCLUSION IS CONSISTENT WITH
THE PUBLIC INTEREST." 

/56/  FOR THE TEXT OF SEC. 5(2)(D), SEE N. 55, SUPRA.  SECTION
5(2)(B), PROVIDES IN PERTINENT PART:  "IF THE COMMISSION FINDS THAT,
SUBJECT TO SUCH TERMS AND CONDITIONS AND SUCH MODIFICATIONS AS IT SHALL
FIND TO BE JUST AND REASONABLE, THE PROPOSED (MERGER) TRANSACTION IS
WITHIN THE SCOPE OF (AN EARLIER SUBDIVISION OF THE STATUTE) . . . AND
WILL BE CONSISTENT WITH THE PUBLIC INTEREST, IT SHALL ENTER AN ORDER
APPROVING AND AUTHORIZING SUCH TRANSACTION, UPON THE TERMS AND
CONDITIONS, AND WITH THE MODIFICATIONS, SO FOUND TO BE JUST AND
REASONABLE.  . . . "     /57/  SUCH ABSTENTION WOULD IN NO WAY HAVE
LIMITED PENN CENTRAL'S FULL PARTICIPATION IN JUDICIAL REVIEW OF THE
COMMISSION PROCEEDINGS.  PENN CENTRAL CAME BEFORE THE REORGANIZATION
COURT AS A "PARTY IN INTEREST" UNDER SEC. 77(E) AND DID NOT OPPOSE THE
ORDER OF THE COURT MAKING IT A PARTY TO THE PROCEEDING; THE COMPANY
PARTICIPATED FULLY IN ALL FURTHER HEARINGS IN THE REORGANIZATION COURT;
IT TOOK A PROTECTIVE APPEAL FROM THE JUDGMENT OF THE COURT REMANDING
THE MATTER TO THE COMMISSION AFTER THE FIRST ROUND OF REVIEW, AND IT
APPEALED AGAIN FROM THE JUDGMENT OF THE COURT FOLLOWING THE SECOND
ROUND OF REVIEW.  AT NO TIME HAS ANYONE QUESTIONED PENN CENTRAL'S
STATUS AS A PARTY LITIGANT IN THE REORGANIZATION COURT OR CHALLENGED
ITS RIGHT TO MAKE A FULL PRESENTATION OF ITS CASE THERE, ON APPEAL TO
THE COURT OF APPEALS, OR ON REVIEW BY WRIT OF CERTIORARI IN THIS
COURT. 

/58/  THE DISTRICT COURT ALSO RELIED UPON THE PRIOR ADJUDICATION OF
THE VALIDITY OF THE PLAN.  SEE 52 F.SUPP.,AT 66 N. 1, 67. 

/59/  IT IS NOTEWORTHY THAT WHEN THE COMMISSION DRAFTED THE
PROVISION UNDER WHICH PENN CENTRAL WAS OBLIGATED TO TAKE IN NEW HAVEN,
IT EVIDENTLY CONTEMPLATED THAT REVIEW WOULD TAKE PLACE ONLY IN THE
REORGANIZATION COURT.  CONDITION 8 OF THE MERGER REPORT, THE TEXT OF
WHICH IS SET OUT IN THE TEXT ABOVE AT 409, REQUIRED PENN CENTRAL TO
TAKE IN NEW HAVEN WITH TERMS OF INCLUSION TO BE "FAIR AND EQUITABLE"--
LANGUAGE PECULIAR TO THE BANKRUPTCY ACT, AND INSTINCT WITH LEGAL
SIGNIFICANCE PECULIAR TO THAT STATUTE.  SEE CASE V. LOS ANGELES LUMBER
PRODS.  CO., 308 U.S. 106, 115-119; BANKRUPTCY ACT, SEC. 77(E)(1), 11
U.S.C. 205(E)(1).  CONDITION 8 SUBJECTED THE AGREEMENT NEGOTIATED BY
THE PARTIES TO "THE APPROVAL OF THE BANKRUPTCY COURT AND THE
COMMISSION."  AND IT ALSO PROVIDED, IN THE EVENT THE PARTIES WERE
UNABLE TO AGREE TO THE ELEMENTS OF INCLUSION, FOR THE IMPOSITION OF
"SUCH FAIR AND EQUITABLE TERMS AND CONDITIONS AS THE COMMISSION MAY
IMPOSE, . . . SUBJECT TO APPROVAL BY THE BANKRUPTCY COURT.  . . . "
REPEATED REFERENCES TO TERMS OF ART IN BANKRUPTCY LAW AND TO THE
BANKRUPTCY COURT CANNOT BE THOUGHT TO LACK MEANING.  STILL LESS CAN WE
ASSUME THAT THE STUDIED OMISSION OF ANY MENTION OF THE THREE-JUDGE
COURT WAS WITHOUT SIGNIFICANCE. 

/60/  PURSUANT TO SEC. 77(E), 11 U.S.C. 205(E), "THE JUDGE SHALL
CONFIRM THE PLAN (OF REORGANIZATION) IF SATISFIED THAT IT HAS BEEN
ACCEPTED BY OR ON BEHALF OF CREDITORS OF EACH CLASS TO WHICH SUBMISSION
IS REQUIRED . . . HOLDING MORE THAN TWO-THIRDS IN AMOUNT OF THE TOTAL
OF THE ALLOWED CLAIMS OF SUCH CLASS WHICH HAVE BEEN REPORTED IN SAID
SUBMISSION AS VOTING ON SAID PLAN, AND BY OR ON BEHALF OF STOCKHOLDERS
OF EACH CLASS TO WHICH SUBMISSION IS REQUIRED . . . HOLDING MORE THAN
TWO-THIRDS OF THE STOCK OF SUCH CLASS WHICH HAS BEEN REPORTED IN SAID
SUBMISSION AS VOTING ON SAID PLAN; AND THAT SUCH ACCEPTANCES HAVE NOT
BEEN MADE OR PROCURED BY ANY MEANS FORBIDDEN BY LAW:  PROVIDED, THAT,
IF THE PLAN HAS NOT BEEN SO ACCEPTED BY THE CREDITORS AND STOCKHOLDERS,
THE JUDGE MAY NEVERTHELESS CONFIRM THE PLAN IF HE IS SATISFIED AND
FINDS, AFTER HEARING, THAT IT MAKES ADEQUATE PROVISION FOR FAIR AND
EQUITABLE TREATMENT FOR THE INTERESTS OR CLAIMS OF THOSE REJECTING IT;
THAT SUCH REJECTION IS NOT REASONABLY JUSTIFIED IN THE LIGHT OF THE
RESPECTIVE RIGHTS AND INTERESTS OF THOSE REJECTING IT AND ALL THE
RELEVENT FACTS; AND THAT THE PLAN CONFORMS TO THE (STATUTORY)
REQUIREMENTS.  . . . " 

/61/  WITHOUT PAUSING TO ASSESS THE PROPRIETY OF THE METHOD BY WHICH
THE COMMISSION ORIGINALLY ASSESSED THE VALUE OF NEW HAVEN'S INTEREST IN
THE TERMINAL PROPERTIES, WE THINK THE REORGANIZATION COURT WAS CORRECT
IN UNDERTAKING ITS OWN RESOLUTION OF THE CONTRACTUAL QUESTION.  THE
VALIDITY OF NEW HAVEN'S CLAIM "PRESENTED) A LEGAL QUESTION WHICH MUST
NECESSARILY BE TAKEN INTO ACCOUNT" IN DETERMINING VALUE.  OLD COLONY
BONDHOLDERS V. NEW YORK, N.H. & H.R. CO., 161 F.2D 413, 422, CERT.
DENIED SUB NOM. PROTECTIVE COMMITTEE V. NEW YORK, N.H. & H.R. CO., 331
U.S. 858.  THE LEGAL QUESTION WAS ONE "TO WHICH THE COMMISSION'S
SPECIALIZED SKILL AND EXPERIENCE DO NOT EXTEND."  161 F.2D, AT 429 (L.
HAND, J., CONCURRING).  THE AUTHORITY OF THE COURT TO TAKE FURTHER
EVIDENCE IS UNQUESTIONED.  BANKRUPTCY ACT, SECS. 77(C)(13), 77(E), 11
U.S.C. 205(C)(13), 205(E). 

/62/  IN 1912 CENTRAL AND NEW HAVEN HAD ERECTED THE HOTEL BILTMORE
THROUGH A SUBSIDIARY, EACH RAILROAD SUPPLYING HALF THE FUNDS, WHICH
WERE FINALLY REIMBURSED IN 1957.  IN 1958 CENTRAL SOUGHT TO LEASE THE
BILTMORE TO A CONTROLLED SUBSIDIARY OVER NEW HAVEN'S OBJECTION.  WHEN
NEW HAVEN REFUSED TO SIGN THE LEASE, CENTRAL CLAIMED THAT NEW HAVEN HAD
BROKEN ITS AGREEMENT AND THEREBY HAD FORFEITED ALL INTEREST IN THAT
PORTION OF THE ENTERPRISE.  CENTRAL BROUGHT SUIT IN NEW YORK STATE
COURT TO SECURE A DETERMINATION OF THE PARTIES' RESPECTIVE INTERESTS IN
THE PROPERTY.  SEE NEW YORK CENTRAL R. CO. V. NEW YORK, N.H. & H.R.
CO., 24 MISC.2D 414, 208 N.Y.S.2D 605, AFF'D AS MODIFIED, 13 APP.DIV.2D
309, 216 N.Y.S.2D 928, AFF'D PER CURIAM, 11 N.Y.2D 1077, 184 N.E.2D
194.  THE CONCLUSIONS OF THE NEW YORK COURTS PARALLELED THOSE OF THE
SPECIAL MASTER.  THE SUPREME COURT RULED THAT NEW HAVEN'S RIGHT TO
SHARE IN RENTALS AFTER CREDITS TO TERMINAL EXPENSES SURVIVED
REIMBURSEMENT OF ITS INVESTMENT, 24 MISC.2D, AT 428, 208 N.Y.S.2D, AT
618.  THE APPELLATE DIVISION AGREED, HOLDING THAT THE PARTIES HAD, "IN
EFFECT, CONVERTED THEMSELVES INTO OWNERS OF THE FEE TOGETHER" AND THAT
"THE DEVELOPMENT OF THE LANDS OVER THE TRACKS WAS BUT ANOTHER STEP IN
THE JOINT EXPLOITATION OF THE RAILROAD PROPERTIES MADE POSSIBLE BY THE
COVERING OF THE TRACKS . . . IN WHICH (PROPERTIES) EACH PARTY HAD A
JOINT INTEREST.  . . . "  13 APP.DIV.2D, AT 318, 216 N.Y.S.2D, AT 936. 
THE LATTER COURT REJECTED THE NOTION THAT AFTER PAYING LARGE SUMS OF
MONEY FOR THE CONSTRUCTION OF BUILDINGS AND ASSUMING THE RISK OF LOSS
OPERATIONS IN THE TERMINAL ENTERPRISE, NEW HAVEN SHOULD HAVE ACQUIRED
NO RIGHT "EXCEPT THE RIGHT TO JOIN DOCILELY IN EACH OF THE DECISIONS
MADE BY CENTRAL."  ID., AT 319, 216 N.Y.S.2D, AT 937.  ALTHOUGH CENTRAL
RETAINED SOLE OWNERSHIP IN THE FEE, THAT FEE WAS ENCUMBERED BY THE
RIGHTS OF NEW HAVEN.  THE APPELLATE DIVISION CONCLUDED THAT NEW HAVEN'S
POSITION VIS-A-VIS CENTRAL COULD BE DESCRIBED AS THAT OF A PARTNER. 
ID., AT 320, 216 N.Y.S.2D, AT 937. 

/63/  "THE SPECIAL MASTER . . . CONCLUDED THERE WAS NO VALUE IN THE
INTEREST, PRINCIPALLY BECAUSE IT IS NOT THE KIND OF INTEREST THAT WOULD
SURVIVE LIQUIDATION; NOR, IF IT DID, COULD IT BE ASSIGNED.  MOREOVER,
THERE WAS NO EVIDENCE THAT THE EXPENSES OF MAINTAINING THE TERMINAL
WOULD BE ANY LESS.  AND THE IDEA THAT THE STATE OF NEW YORK, OR AN
INTERSTATE AUTHORITY MIGHT PAY, DIRECTLY OR INDIRECTLY, SOME
CONSIDERATION FOR AVAILING ITSELF OF THAT USE IS HIGHLY SPECULATIVE IN
VIEW OF THE BARGAINING POSITIONS OF THE STATES AND THE DISPOSITION OF
THE I.C.C. TO REQUIRE PENN CENTRAL TO FURNISH SUCH ACCESS FREE OF
CHARGE TO A STATE OR PUBLIC AUTHORITY WHICH ASSUMED THE COMMUTER
SERVICE, AS A CONDITION OF PENN CENTRAL'S GETTING RID OF THAT MUCH OF
THE LOSING AND BURDENSOME PASSENGER SERVICE.  WHILE MITIGATION OF A
BURDEN MAY IN SOME CIRCUMSTANCES FURNISH A CONSIDERATION, IT IS NOT A
MEASURABLE ONE FOR THE PURPOSE OF THIS ISSUE IN THE CASE."  304
F.SUPP.,AT 806. 

/64/  AT ONE STAGE THE LITIGATION OVER THE VALUE OF NEW HAVEN'S
INTEREST IN THE TERMINAL PROPERTIES ALSO INVOLVED DISPUTES OVER WHICH
OF FOUR DIFFERENT SETS OF ACCOUNT BOOKS THE COMMISSION SHOULD USE, THE
BASE PERIOD FROM WHICH THE COMMISSION MIGHT EXTRAPOLATE FUTURE INCOME
AND EXPENSES, THE RATE AT WHICH THE PROJECTED INCOME FLOW SHOULD BE
CAPITALIZED, AND THE PROBABLE INCOME FLOW FROM A NEW OFFICE BUILDING TO
BE CONSTRUCTED ON THE SITE OF THE RAILROAD STATION. 

/65/  THE BONDHOLDERS COMMITTEE PRESSES ITS CHALLENGE THAT THE
COMMISSION HAS UNDERSTATED NEW HAVEN'S SHARE OF EXCESS INCOME BY
$700,000 A YEAR, WITH A CAPITALIZED LOSS OF $8,750,000 IN VALUE.  THE
CHALLENGE IS PREDICATED ON THE CLAIM THAT THE COMMISSION IMPROPERLY
CONCLUDED THAT FUTURE HOTEL PROFITS WOULD NOT INCREASE BUT WOULD REMAIN
CONSTANT.  334 I.C.C.,AT 38.  THE REORGANIZATION COURT UPHELD THE
COMMISSION IN THIS REGARD, 304 F.SUPP.,AT 806.  WE DO NOT OVERTURN ITS
JUDGMENT ON A MATTER SUCH AS THIS, CALLING FOR AN INFORMED PREDICTION
OF FUTURE INCOME, EXPENSES, AND THE RATE OF RETURN ON INVESTED CAPITAL
IN A SPECIFIC BUSINESS ACTIVITY UNIQUELY LOCATED IN MIDTOWN MANHATTAN. 

IN ADDITION, IT IS SUGGESTED THAT UPON A CESSATION OF NEW HAVEN
TERMINAL OPERATIONS THE COSTS OF MAINTAINING THE STATION WOULD
DECREASE, WITH A CONSEQUENT AUGMENTATION IN THE EXCESS INCOME.  OF
COURSE THE STATION REVENUES WOULD DECREASE AS WELL-- PERHAPS AS MUCH AS
OR MORE THAN THE EXPENSES.  IN THE ABSENCE OF ANY RECORD EVIDENCE ON
THE POINT, WE CANNOT ASSUME THAT LIQUIDATION WOULD THUS HAVE BENEFITED
NEW HAVEN. 

ON THE SECOND ROUND OF REVIEW THE REORGANIZATION COURT ORDERED PENN
CENTRAL TO PAY NEW HAVEN THE LATTER'S SHARE OF ACCRUED EXCESS INCOME
FOR 1967 AND 1968, AS A SEPARATE SUM APART FROM THE PURCHASE PRICE. 
304 F.SUPP.,AT 806-807.  THE BONDHOLDERS COMMITTEE NOW ASKS US TO AWARD
INTEREST WITH RESPECT TO THIS PAYMENT.  THE REORGANIZATION COURT
REJECTED THE CLAIM, DOUBTLESS BECAUSE THE UNCERTAINTY OF NEW HAVEN'S
LEGAL INTEREST IN THE EXCESS INCOME PRECLUDED A FINDING THAT THE AMOUNT
REPRESENTED A LIQUIDATED OBLIGATION OWED BY NEW YORK CENTRAL.  WE AGREE
WITH THE COURT'S RULING. 

/66/  THE PARTIES HAVE DEVOTED MUCH DISCUSSION TO PENN CENTRAL'S
NEGOTIATIONS WITH THE STATES OF NEW YORK AND CONNECTICUT FOR THE
TRANSFER OF THE NEW HAVEN COMMUTER SERVICE TO A PUBLIC AUTHORITY. 
MANUFACTURERS HANOVER SAYS THE STATES HAVE AGREED TO PAY AN ANNUAL TOLL
TO RUN THE TRAINS INTO THE TERMINAL, THUS DEMONSTRATING THAT THE NEW
HAVEN RIGHT OF ACCESS DOES HAVE VALUE; PENN CENTRAL CLAIMS THE STATES
ARE TO PAY ONLY FOR THE USE OF THE TRACKS AND THAT IT WILL GIVE THEM A
RIGHT OF ENTRY INTO THE TERMINAL FOR NOTHING.  BOTH SIDES POINT TO
NEWSPAPER ARTICLES IN SUPPORT OF THEIR ARGUMENTS.  NONE OF THIS IS
RECORD EVIDENCE, AND WE DO NOT CONSIDER IT. 

/67/  "AN EXAMPLE OF THE DIFFERENCE IN APPROACH IN THE TRUSTEES' TWO
APPRAISALS IS AFFORDED BY THE SO-CALLED REA BUILDING IN THE HARLEM
RIVER YARD.  THIS BUILDING WAS SPECIALLY BUILT FOR REA EXPRESS WITH
FOUR TRACKS RUNNING THROUGH THE CENTER OF ITS GROUND FLOOR.  IN THE
FIRST, AND HIGHER, TRUSTEE APPRAISAL THE BUILDING WAS VALUED AT
$675,000 BECAUSE OF THESE TRACKS AND THE RAILROAD SERVICE THEY
PROVIDED.  IN THE SECOND, AND LOWER APPRAISAL, IT WAS ASSUMED THAT THE
TRACKS WERE DISMANTLED.  THIS WOULD REQUIRE RECONSTRUCTION OF THE
GROUND FLOOR.  THE BUILDING WOULD THEN BE SUITABLE ONLY FOR AN ENTIRELY
DIFFERENT TYPE OF TENANT.  WITHOUT TRACKS, IT WOULD HAVE A LOWER RENTAL
VALUE.  ITS APPRAISED VALUE WAS, THEREFORE, REDUCED TO $400,000 IN THE
SECOND APPRAISAL.  DIFFERENCES IN THE VALUES OF VARIOUS OTHER TENANT
OCCUPIED BUILDINGS IN THE TWO YARDS RESULTED FROM FOLLOWING SIMILAR
PROCEDURES IN THEIR APPRAISALS."  334 I.C.C.,AT 43.  (FOOTNOTE
OMITTED.) 

/68/  UNDER THE INTERSTATE COMMERCE ACT, PENN CENTRAL IS OBLIGED TO
"PROVIDE AND FURNISH TRANSPORTATION UPON REASONABLE REQUEST THEREFOR,"
SEC. 1(4), 49 U.S.C. 1(4), AND TO OFFER SWITCH CONNECTIONS AND CARS FOR
TRAFFIC TO BRANCH LINES OR PRIVATE SIDE TRACK CONSTRUCTED BY SHIPPERS
TO CONNECT WITH THE RAILROAD WHEREVER PRACTICABLE AND JUSTIFIED BY THE
ADDED BUSINESS, SEC. 1(9), 49 U.S.C. 1(9). 

/69/  PENN CENTRAL CLAIMS IT COULD NOT PROVIDE SERVICE TO THE YARDS
OVER THE PORT MORRIS BRANCH BECAUSE OF CLEARANCE DIFFICULTIES ON THE
LINE.  THE REORGANIZATION COURT OBSERVED THAT PENN CENTRAL'S OWN
EVIDENCE LARGELY REFUTED THE CONTENTION.  THIS FINDING OF THE DISTRICT
COURT, BASED ON ITS STUDY OF THE RECORD AND ITS INTIMATE FAMILIARITY
WITH THE SUBJECT MATTER, IS FREE FROM CLEAR ERROR, AND WE DO NOT
DISTURB IT. 

/70/  PENN CENTRAL'S OWN WITNESSES CONCEDED THE PORT MORRIS
CONNECTION WOULD "DOUBTLESS" ENABLE THE INDUSTRIES AT HARLEM RIVER AND
OAK POINT TO CONTINUE THEIR RAIL USAGE EVEN AFTER A NEW HAVEN
LIQUIDATION; THAT SOMEONE, WHETHER THE CITY OF NEW YORK OR A THIRD
PARTY, WOULD HAVE TO ACQUIRE ACCESS FOR RAIL SERVICE TO THE HUNTS POINT
MARKET; AND THAT THE ONLY RATIONAL WAY TO PROVIDE SUCH SERVICE WOULD BE
TO MOVE CARS FROM THE PENN CENTRAL SYSTEM VIA THE PORT MORRIS
CONNECTION.  THE COMMISSION ITSELF FOUND THAT DURING A TEST MONTH IN
THE SUMMER OF 1968 MORE THAN 2,300 CARS PASSED FROM THE PENN CENTRAL
MAIN LINES TO THE MARKET AND YARD INDUSTRIES VIA THE PORT MORRIS
CONNECTION.  334 I.C.C.,AT 44. 

AT ONE POINT PENN CENTRAL CLAIMED THAT EVEN ON THE HIGHER OF THE TWO
APPRAISALS, THE RECORD EVIDENCE REQUIRED A DOWNWARD ADJUSTMENT OF
$461,000.  THE REORGANIZATION COURT MADE A PARTIAL CORRECTION TO
REFLECT A CONCEDED DUPLICATION, BUT IMPLICITLY REJECTED PENN CENTRAL'S
ARGUMENT AS TO THE BALANCE.  SINCE PENN CENTRAL DOES NOT PRESS THE
ISSUE HERE, WE DO NOT CONSIDER IT. 

/71/  THE COMMISSION ITSELF JUSTIFIED THE REFUSAL OF THE HEARING
EXAMINER TO TAKE EVIDENCE ON THE QUESTION OF DELAY BY SAYING:  "TO THE
EXTENT THAT EVIDENCE WAS PROFFERED ON THE PROCESSING TIME OF POSSIBLE
ABANDONMENT PROCEEDINGS INVOLVING NEW) HAVEN), SUCH MATTERS ARE WITHIN
OUR KNOWLEDGE AND EVIDENCE THEREON WAS UNNECESSARY."  334 I.C.C.,AT
29. 

/72/  THESE FINDINGS COMPORT WITH THE OBSERVATIONS OF THE
REORGANIZATION COURT IN FEBRUARY 1965, WHEN THE TRUSTEES SOUGHT
PERMISSION TO DISCONTINUE ALL PASSENGER SERVICE:     "THE RECORD SHOWS
THAT THE PUBLIC INTEREST HAS BEEN THUS FAR SUPPORTED BY THE CREDITORS
OF THIS ESTATE WITH NO SUBSTANTIAL PARTICIPATION FROM THE STATES.  . .
.

        *          *          *          * "FAR FROM BEING
INDIFFERENT TO THE PUBLIC INTEREST, THE COURT HAS INDULGED THAT
INTEREST AND ALLOWED IT TO PREVAIL OVER THE CREDITORS'  RIGHTS FOR
THREE AND ONE-HALF YEARS. 

"IN SPITE OF THIS LONG INTERVAL, VERY LITTLE HAS BEEN PRODUCED. 
MASSACHUSETTS NEVER FULFILLED ITS COMMITMENT TO GRANT TAX RELIEF.  NEW
YORK, BY CONDITIONING FUTURE TAX RELIEF ON A COMMITMENT BY THE TRUSTEES
TO LEASE NEW EQUIPMENT AND CONDUCT COMMUTATION SERVICE AT PRESENT
LEVELS WITH NO ASSURANCE THAT THE DEFICITS WOULD BE UNDERWRITTEN, HAS
USED IT AS A LASH OVER THE BACK OF THE DEBTOR TO COMPEL IT TO DO THE
STATE'S WILL AT A TIME WHEN IT HAS NOT HAD THE STRENGTH TO DO SO.  TAX
RELIEF IN CONNECTICUT AND RHODE ISLAND WAS CONTINUED, BUT WITH A
REQUIREMENT THAT CERTAIN STANDARDS OF SERVICE BE MET AND, ACCORDINGLY,
THAT THE PASSENGER DEFICITS CONTINUE TO BE INCURRED. 

"IF THE PUBLIC INTEREST SO URGENTLY DEMANDS THE CONTINUANCE OF THE
NEW HAVEN'S PASSENGER SERVICE, AS THE STATES SEEM SUDDENLY TO HAVE
DISCOVERED, THEY SHOULD HAVE STOPPED TAXING ITS PROPERTY A LONG TIME
AGO.  COMMUTERS AND OTHER PASSENGERS DEMAND BETTER EQUIPMENT AND BETTER
SERVICE; THE STATES INSIST UPON IMPOSING A CONTINUING TAX BURDEN--
EVERYONE WANTS TO DRAW THE LAST OUNCES OF BLOOD OUT OF THIS NEAR
CORPSE; BUT NO ONE GIVES IT THE TRANSFUSION IT SO BADLY NEEDS.  IT IS
NOW TOO LATE IN THE DAY TO TALK ABOUT SAVING THE SITUATION WITH TAX
RELIEF.  AS THE RAILROAD HAS NOT BEEN ABLE TO USE ITS VITAL CASH FOR
TAXES, LIENS HAVE BEEN ACCUMULATING AHEAD OF THE CREDITORS, FORCING
THEM FURTHER DOWN THE LADDER OF PRIORITIES, AND ACCELERATING AND
COMPELLING THE ACTION WHICH THE COURT HAS TAKEN TODAY.  IF THIS TAX
BURDEN CONTINUES TO GROW AND THE RAILROAD IS NOT OTHERWISE RELIEVED,
THE CREDITORS WILL BE COMPELLED TO MOVE FOR LIQUIDATION OF THE NEW
HAVEN AND THE COURT WILL HAVE NO RECOURSE BUT TO ORDER IT. IF THE
STATES WISH ESSENTIAL PASSENGER SERVICES CONTINUED, AN UNDERWRITING
WHICH GOES FAR BEYOND TAX RELIEF WILL BE NECESSARY." 

/73/  WHAT WE HAVE SAID DISPOSES OF THE DEDUCTION FOR DELAY ON THE
GROUND ADVANCED BY THE REORGANIZATION COURT.  ENTIRELY APART FROM THAT
EXPLANATION, A SECOND LINE OF REASONING LEADS TO THE SAME RESULT.  THE
DELAY DEDUCTION ASSUMED THE POSTPONEMENT OF THE COMMENCEMENT OF
LIQUIDATION FOR ONE YEAR; THE COMMISSION POSTULATED A ONE-YEAR FREEZE
PRIOR TO THE BEGINNING OF SALE.  SEE 334 I.C.C.,AT 60 N. 2.  BUT THE
COMMISSION THEREBY ASSUMED THAT DURING THE ONE-YEAR DELAY PERIOD
NOTHING WOULD HAPPEN; THE TRUSTEES WOULD SELL NO PROPERTIES AND ENTER
INTO NO CONTINGENT CONTRACTS FOR DISPOSITION OF THE DEBTOR'S ASSETS. 
ABSENT COMMISSION EXPLANATION, WE CANNOT ASSUME THAT THE DELAY WOULD
HAVE RESULTED IN SO TOTAL A SUSPENSION OF THE SALES PROGRAM DURING THE
FIRST YEAR, AS WELL AS A FAILURE OF THE SALE MANAGERS TO EXPEDITE
DISPOSITION OF THE PROPERTIES AND THEREBY SHORTEN THE CONTEMPLATED SIX
YEAR LIQUIDATION PERIOD.  IT IS NOT FOR US TO DETERMINE THE EXTENT TO
WHICH IMPOSITION OF A ONE-YEAR PAUSE AT THE OUTSET WOULD HAVE ENABLED
THE TRUSTEES TO ACCELERATE THE SALE IN THE FIFTH AND SIXTH YEARS.  BUT
ACCEPTANCE OF THE DELAY DEDUCTION IN PRINCIPLE WOULD COMPEL A REMAND TO
THE COMMISSION FOR EXPLANATION OF ITS TACIT ASSUMPTIONS THAT THE
INITIAL YEAR WOULD HAVE BEEN DEVOID OF ACTIVITY AND THE LATER YEARS
WOULD MERELY HAVE PROCEEDED AS BEFORE. 

IT IS SUGGESTED THAT WITH THE ONE-YEAR FREEZE THE DELAY CONCEPT MAY
BE VIEWED AS A MERE SHIFTING OF THE VALUATION DATE TO DECEMBER 31,
1967.  THAT DATE, IT IS SAID, IS AS RATIONAL AS THE DATE ORIGINALLY
CHOSEN.  AND SO IT MAY BE.  BUT THE ADJUSTMENTS IN VALUE TAKE INTO
ACCOUNT ONLY THE EXPENSES AND DEPRECIATION ATTRIBUTABLE TO A ONE-YEAR
PAUSE, WITH NO CONSIDERATION TO COUNTERVAILING INCOME AND INCREASES IN
CAPITAL VALUE.  THE COMMISSION SAYS A COMPREHENSIVE REVALUATION OF THE
DEBTOR'S ASSETS AS OF DECEMBER 31, 1967, WOULD PRODUCE A MUCH GREATER
LOSS THAN THE $15,386,000 ACTUALLY DEDUCTED.  BUT IN THE ABSENCE OF
PROOF WE AGAIN CANNOT ASSUME THAT THAT WOULD BE THE CASE.  FOR
AUTHORITY TO THAT EFFECT WE NEED LOOK NO FURTHER THAN TO THE COMMISSION
ITSELF, WHICH, AS WE HAVE EARLIER NOTED, REJECTED PENN CENTRAL'S
REQUEST ON THE FIRST ROUND FOR A FURTHER ALLOWANCE FOR THE "CONSTANT
DIMUNUTION OF NEW) HAVEN)'S ASSETS" TO REFLECT THE OCCURRENCE OF
ABANDONMENT DELAY.  ON THAT OCCASION THE COMMISSION NOTED THAT "A LARGE
PORTION OF NEW) HAVEN) ASSETS CONSISTS OF LAND," AND ADDED:  "WE CANNOT
ASSUME THAT THESE VALUES WILL DIMINISH.  IT IS AT LEAST AS REASONABLE
TO PRESUPPOSE THAT THE VALUES WILL INCREASE."  331 I.C.C.,AT 698.  IF
THE COMMISSION COULD NOT ASSUME DIMINUTION IN REALTY VALUES AT THE TIME
OF THE SECOND SUPPLEMENTAL REPORT, WE DO NOT SEE HOW, WITHOUT SOME
EXPLANATION, IT COULD ASSUME IT AT THE TIME OF THE FOURTH. 

/74/  THE COMMISSION FREQUENTLY REQUIRES AN ABANDONING RAILROAD TO
SELL ITS PROPERTIES IN BULK TO A PARTY (TYPICALLY A PUBLIC AUTHORITY)
THAT WILL UNDERTAKE CONTINUED OPERATION OF THE SERVICE, BUT TYPICALLY
SETS THE SALE PRICE AT "NOT LESS THAN NET SALVAGE VALUE OF THE PROPERTY
SOUGHT TO BE ACQUIRED."  SEE, E.G., RUTLAND R. CORP. ABANDONMENT, 317
I.C.C. 393, 425; CHICAGO N.S. & M.R. ABANDONMENT, 317 I.C.C. 191, 200,
AFF'D SUB NOM. ILLINOIS V. UNITED STATES, 213 F.SUPP.  83, AFF'D PER
CURIAM, 373 U.S. 378; FORT DODGE, D.N. & S.R. CO. ABANDONMENT, 312
I.C.C. 708, 712; CHICAGO A. & E.R. CORP. ABANDONMENT, 312 I.C.C. 533,
537; ARKANSAS & O.R. CORP. ABANDONMENT, 312 I.C.C. 501, 505. 

/75/  IN ITS FOURTH SUPPLEMENTAL REPORT THE COMMISSION PROVIDED FOR
PAYMENT OF THE TRUSTEES' CERTIFICATES BY CANCELLATION AGAINST THE PRICE
ADJUSTMENTS PROVIDED FOR IN THE PURCHASE AGREEMENT.  334 I.C.C.,AT 70. 

/76/  IN ADDITION, THE BONDHOLDERS CONTEND THE CALCULATION OF THE
OPERATING LOSS UPON WHICH THE FORMULA IS BASED IS ITSELF UNFAIR.  CHASE
MANHATTAN AND THE COMMITTEE SAY THE CALCULATION EXCLUDES ITEMS SUCH AS
RENT FOR LEASED ROADS AND INTEREST PAID DURING BANKRUPTCY, AGGREGATING
SOME $2,600,000.  THE COMMISSION REFUSED TO INCLUDE SUCH ITEMS BECAUSE
IT THOUGHT THEM "MORE NEARLY CAPITAL CHARGES, THAT IS, COSTS OF
PROVIDING THE RAILROAD PLANT.  . . . "  SECOND SUPPLEMENTAL REPORT, 331
I.C.C.,AT 718.  CHASE MANHATTAN ATTACKS THE COMMISSION'S RULING ON THE
GROUND THAT NEW HAVEN PAID OUT THE MONIES IN QUESTION IN 1968 ONLY
BECAUSE IT HAD NOT YET BEEN INCLUDED IN PENN CENTRAL.  BUT THE TEST FOR
AN OPERATING LOSS AS OPPOSED TO A CAPITAL CHARGE IS NOT WHETHER A CASH
DISBURSEMENT TOOK PLACE; THE COMMISSION COULD PROPERLY LIMIT PENN
CENTRAL'S LIABILITY TO THE FORMER CATEGORY. 

/77/ SEE DENVER & R.G.W.R. CO. V. UNITED STATES, 387 U.S. 485. 

/78/  THE BONDHOLDERS COMMITTEE RAISED THE QUESTION IN ITS PETITION
FOR CERTIORARI WHETHER THE REORGANIZATION COURT HAD ERRED IN ITS
ASSIGNMENT OF ZERO VALUE TO THE CERTIFICATES OF CONTINGENT BENEFICIAL
INTEREST ISSUED IN CONNECTION WITH THE REORGANIZATION OF THE BOSTON &
PROVIDENCE RAILROAD.  SEE 304 F.SUPP.,AT 810.  THE COMMITTEE HAS NOT
REVIVED THE ISSUE IN ITS BRIEF, NOR HAS IT RESPONDED IN ITS REPLY BRIEF
TO THE GOVERNMENT'S CONTENTION THAT IT HAS ABANDONED THE CLAIM. 
ACCORDINGLY, WE DO NOT CONSIDER THE MATTER FURTHER. 

/79/  IN 1968 THE NEW HAVEN SUFFERED AN ESTIMATED OPERATING DEFICIT
OF $8,200,000.  THAT FIGURE, CAPITALIZED AT 8%, AMOUNTS TO MORE THAN
$100,000,000. 

/80/  THE DECISIONS OF THE NEW YORK STATE COURTS RELIED UPON BY THE
BONDHOLDERS ARE INAPPOSITE.  IN IN RE CITY OF NEW YORK, 18 N.Y.2D 212,
219 N.E.2D 410, APPEAL DISMISSED SUB NOM. FIFTH AVENUE COACH LINES V.
CITY OF NEW YORK, 386 U.S. 778, THE CITY HAD CONDEMNED THE FIFTH AVENUE
COACH LINES.  THE TRIAL COURT TREATED THE TAKEOVER AS ONE OF A GOING
CONCERN AND FIXED THE AWARD AT REPRODUCTION COST NEW LESS
DEPRECIATION.  THE COURT OF APPEALS AGREED THAT SINCE FIFTH AVENUE HAD
DEMONSTRATED A CAPACITY FOR PROFITABLE OPERATIONS UNDER REASONABLE
RATES, IT WAS ENTITLED TO GOING-CONCERN VALUUE, BUT THAT THE TRIAL
COURT HAD ERRED IN EXCLUDING EVIDENCE OF VALUE OF THE "INTANGIBLE GOING
CONCERN ASSETS, THAT IS, THE COMPONENT OF VALUE IN THE BUSINESS WHICH
IN ADDITION TO THE VALUE OF THE TANGIBLE ASSETS REFLECTS AN EFFICIENT
OPERATION."  ID., AT 220, 221, 219 N.E.2D, AT 412, 413.  THE OPINION OF
THE COURT OF APPEALS DOES NOT DISCLOSE WHETHER PAYMENT OF LIQUIDATING
VALUE WOULD HAVE YIELDED A HIGHER PRICE.  IN IN RE PORT AUTHORITY TRANS
HUDSON CORP., 20 N.Y.2D 457, 231 N.E.2D 734, CERT. DENIED SUB NOM. PORT
AUTHORITY TRAN-HUDSON CORP. V. HUDSON RAPID TUBES CORP., 390 U.S. 1002,
THE COURT OF APPEALS DEALT WITH A PUBLIC TAKING OF RAILROAD TUNNELS
UNDER THE HUDSON RIVER OWNED BY A COMPANY IN REORGANIZATION AND HAVING
ONLY A "DIM FINANCIAL FUTURE.  . . . "  20 N.Y.2D, AT 465, 231 N.E.2D,
AT 736.  THE TUNNELS, WHICH REQUIRED ONLY $88,000 TO BE PUT IN WORKING
ORDER, HAD COST $32,000,000 TO BUILD, AND WOULD HAVE COST $400,000,000
TO REPLACE; THEIR LIQUIDATING VALUE WAS A NEGATIVE FIGURE, BECAUSE OF
COSTS THAT WOULD HAVE BEEN INCURRED IN PLUGGING THEM UP.  ID., AT 467
AND N. 2, 470, 231 N.E.2D, AT 737 AND N. 2, 739.  BECAUSE THE PORT
AUTHORITY WAS TAKING THE TUNNELS FOR CONTINUED OPERATION, THE COURT OF
APPEALS HELD THE PROPER VALUATION WAS DEPRECIATED ORIGINAL COST PLUS
THE VALUE OF INTANGIBLE ASSETS ALSO ATTRIBUTABLE TO THE OPERATION AS A
GOING CONCERN.  ID., AT 471-472, 231 N.E.2D, AT 740.  IN NEITHER OF
THESE CASES DID THE NEW YORK COURTS REQUIRE THE TAKING AUTHORITIES TO
PAY BOTH AN OPERATING AND A LIQUIDATING VALUE.  RATHER, THEY AWARDED
THE OWNERS THE VALUE REFLECTING THE HIGHEST AND BEST PRICE FOR THEIR
PROPERTIES-- PRECISELY THE TREATMENT ACCORDED THE NEW HAVEN HERE. 

/81/  AT THE TIME OF THE SECOND SUPPLEMENTAL REPORT, AN ISSUE OF
950,000 PENN CENTRAL COMMON SHARES TO NEW HAVEN WOULD HAVE GIVEN THE
DEBTOR 4% OF THE TOTAL SHAREHOLDER EQUITY IN THE NEW COMPANY.  331
I.C.C.,AT 689. 

/82/  AS PREVIOUSLY NOTED, THE HOLDERS OF THE HARLEM RIVER DIVISION
BONDS HAVE RECEIVED SATISFACTORY SECURITY BY PENN CENTRAL'S ASSUMPTION
OF THE MORTGAGE.  SEE N. 48, SUPRA.  WE ARE INFORMED THAT THE RIGHT OF
THE HOLDERS OF THE GENERAL INCOME BONDS TO PARTICIPATE IN THE
REORGANIZED COMPANY DEPENDS ON THE OUTCOME OF THIS LITIGATION.  THE
HOLDERS OF THE FIRST AND REFUNDING MORTGAGE BONDS STAND SOMEWHERE IN
BETWEEN.  SEE 289 F.SUPP.,AT 442 N. 18. 

/83/  AS LATE AS OCTOBER 1966 THE REORGANIZATION COURT NOTED THAT
THE POLICY OF PRESERVING THE NEW HAVEN AS AN ONGOING RAILROAD "HAS BEEN
CONCURRED IN BY THE BONDHOLDERS.  . . . " 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE CENTRAL ISSUE IN THESE CASES, EASILY LOST I FEAR IN THE 98-PAGE
OPINION OF THE COURT, CAN IN MY JUDGMENT BE BRIEFLY AND SIMPLY STATED. 
AFTER THIS COURT'S DECISION IN THE PENN-CENTRAL MERGER CASES, 389 U.S.
486, THE INTERSTATE COMMERCE COMMISSION ASSUMED ITS DIFFICULT STATUTORY
TASK OF DETERMINING THE LIQUIDATION VALUE OF THE ASSETS OF THE NEW
HAVEN RAILROAD, A DETERMINATION WHICH IF UPHELD BY THE COURTS WOULD
DECIDE THE PURCHASE PRICE PENN CENTRAL WOULD HAVE TO PAY FOR THE
BANKRUPT NEW HAVEN.  THE COMMISSION MADE THAT VALUATION DETERMINATION,
AND THE QUESTION BEFORE THIS COURT IS WHETHER, UNDER THE APPROPRIATE
STANDARDS OF COURT REVIEW, THE COMMISSION'S VALUATION OF THE NEW
HAVEN'S PROPERTIES SHOULD HAVE BEEN SUSTAINED OR REJECTED BY THE
REVIEWING COURTS.  THIS QUESTION COMES HERE FROM TWO FEDERAL DISTRICT
COURTS, BOTH OF WHICH WERE CALLED UPON TO REVIEW THE COMMISSION'S
VALUATION OF THE NEW HAVEN PROPERTIES, (1) A BANKRUPTCY COURT CONVENED
UNDER SEC. 77 OF THE BANKRUPTCY ACT, 11 U.S.C. 205, TO CONSIDER THE
REORGANIZATION OF THE NEW HAVEN, AND (2) A THREE-JUDGE MERGER COURT
CONVENED UNDER 28 U.S.C. 1336(A), 2321-2325, TO REVIEW THE COMMISSION'S
MERGER AND INCLUSION ORDERS.  BOTH DISTRICT COURTS HAD JURISDICTION
UNDER THESE STATUTES TO EXAMINE THE COMMISSION'S VALUATION DECISIONS. 
AND THE PROPER SCOPE FOR EACH COURT'S REVIEW WAS THE SAME:  WERE THE
COMMISSION'S FINDINGS SUPPORTED BY SUBSTANTIAL EVIDENCE AND CONSISTENT
WITH APPLICABLE STATUTORY REQUIREMENTS?  YET THE RECEPTION THE
COMMISSION'S DETERMINATION RECEIVED FROM THE TWO COURTS ON THE FINAL
ROUND OF REVIEW WAS DRAMATICALLY DIFFERENT.  THE BANKRUPTCY COURT TOOK
ISSUE WITH SEVERAL OF THE COMMISSION'S IMPORTANT FINDINGS AS TO THE NEW
HAVEN'S LIQUIDATION VALUE AND, SUBSTITUTING ITS OWN IDEAS OF THE PROPER
METHOD OF APPRAISING THE RAILROAD'S PROPERTIES, INCREASED BY OVER
$28,000,000 THE VALUE THE COMMISSION HAD PLACED ON THE ASSETS OF THE
NEW HAVEN.  304 F.SUPP.  793.  IN SHARP CONTRAST, THE THREE-JUDGE
MERGER COURT NOTED THE "SEVERE LIMITATIONS" ON THE SCOPE OF ITS REVIEW
OF VALUATION MATTERS, 305 F.SUPP.  1049, 1053, AND, AFTER CAREFULLY
EXAMINING THE COMMISSION PLAN, SUSTAINED THE AGENCY'S DETERMINATIONS. 
/1/  JUDGE FRIENDLY, WRITING FOR THE THREE JUDGE MERGER COURT, STATED
THE FUNDAMENTAL REASON FOR THAT COURT'S DISAGREEMENT WITH THE
BANKRUPTCY COURT: 

"ESSENTIALLY, WE THINK OUR DISAGREEMENTS . . . REFLECT A DIFFERENCE
IN VIEW CONCERNING HOW FAR WE ARE AT LIBERTY TO SUBSTITUTE OUR OWN
NOTIONS FOR THE DECISIONS THE COMMISSION HAS TAKEN IN WHAT WE REGARD AS
A SINCERE EFFORT TO COMPLY WITH THE TASKS BOTH COURTS ASSIGNED IT ON
REMAND."  305 F.SUPP.,AT 1065. 

        I 

BOTH DISTRICT COURT DECISIONS ARE NOW PROPERLY BEFORE THIS COURT FOR
OUR REVIEW, AND, CONTRARY TO THE POSITION TAKEN BY THE COURT TODAY, IT
IS MY VIEW THAT THE COURT HAS AN OBLIGATION TO PASS UPON BOTH THOSE
JUDGMENTS, NOT JUST ONE.  AS THE QUOTED PASSAGE FROM JUDGE FRIENDLY'S
OPINION FOR THE THREE-JUDGE MERGER COURT INDICATES, THE ANSWER TO THE
QUESTION WHETHER THIS COURT SHOULD FOLLOW THE THREE-JUDGE COURT AND
SUSTAIN THE COMMISSION'S VALUATION OF THE NEW HAVEN PROPERTIES TURNS
LARGELY ON THE PROPER SCOPE OF JUDICIAL INQUIRY INTO THE AGENCY
DETERMINATION.  OUR PREVIOUS CASES MAKE IT CLEAR THAT THE SCOPE OF
JUDICIAL REVIEW OF THE COMMISSION'S APPRAISAL OF SUCH PROPERTIES IS
NARROWLY LIMITED TO ENSURING THAT THE AGENCY FINDINGS ARE SUPPORTED BY
MATERIAL EVIDENCE AND CONSISTENT WITH STATUTORY STANDARDS.  THE FEDERAL
COURTS, THIS COURT INCLUDED, SHOULD DEFER WHENEVER POSSIBLE TO
COMMISSION EXPERTISE ON COMPLEX QUESTIONS OF VALUATION.  IT IS MY
POSITION, ELABORATED IN WHAT FOLLOWS, THAT THE APPLICATION OF THIS TEST
TO THE RECORD BEFORE THE COMMISSION IN THESE CASES CAN ONLY LEAD TO THE
CONCLUSION THAT THE COMMISSION DID NOT ABUSE ITS DISCRETION IN VALUING
THE NEW HAVEN AND, ACCORDINGLY, THAT THE THREE-JUDGE COURT WAS CORRECT
IN SUSTAINING ITS DETERMINATIONS AND THE BANKRUPTCY COURT WRONG IN
REJECTING THEM.  THE THREE-JUDGE COURT'S EXCELLENT OPINION IS, IN MY
VIEW, COMPELLING SUPPORT FOR THE IDEA THAT A REASONABLE REVIEWING COURT
EXERCISING THE PROPER SCOPE OF REVIEW WOULD FIND THAT THE COMMISSION
ACTED WHOLLY WITHIN ITS DISCRETION.  MOREOVER, I FIND MYSELF IN
AGREEMENT WITH JUDGE FRIENDLY THAT THE BANKRUPTCY COURT GREATLY
EXCEEDED ITS REVIEWING AUTHORITY AND IN SO DOING IMPROPERLY SUBSTITUTED
ITS OWN VIEWS ON VALUATION FOR THOSE OF THE COMMISSION.  /2/ 

THE COURT TODAY REACHES CONCLUSIONS COMPLETELY AT ODDS WITH THOSE
STATED ABOVE AND AFFIRMS THE DECISION OF THE BANKRUPTCY COURT.  I DO
NOT THINK THE COURT COULD REACH THE RESULT IT DOES BUT FOR ITS MISTAKEN
ASSUMPTION THAT THE BANKRUPTCY COURT WAS SOMEHOW THE MORE APPROPRIATE
OF THE TWO COURTS TO REVIEW THE COMMISSION'S VALUATION DETERMINATIONS
AND THAT, ACCORDINGLY, THE EXCELLENT OPINION OF THE THREE-JUDGE COURT
COULD BE SIMPLY IGNORED ON THE GROUND THAT THAT COURT SHOULD HAVE
ABSTAINED IN FAVOR OF THE BANKRUPTCY COURT.  CONGRESS HAS GRANTED
JURISDICTION TO REVIEW THE COMMISSION FINDINGS TO BOTH COURTS UNDER THE
PECULIAR CIRCUMSTANCES PRESENTED IN THESE CASES, AND THE COURT OFFERS
ONLY MAKE-WEIGHT ARGUMENTS TO SUPPORT ITS HOLDING THAT THE THREE-JUDGE
COURT SHOULD HAVE ABSTAINED FROM REACHING THE VALUATION QUESTIONS.  IN
MY VIEW, BOTH COURTS WERE OBLIGATED TO FULFILL THEIR STATUTORY MANDATE
TO REVIEW THE COMMISSION'S VALUATION FINDINGS, AND THIS COURT HAS AN
OBLIGATION TO TREAT WITH EQUAL DIGNITY THE DECISIONS OF EACH OF THOSE
COURTS.  FOR THIS REASON I CANNOT AGREE THAT THE COURT IS JUSTIFIED IN
PROCEEDING AS IF JUDGE FRIENDLY'S OPINION FOR THE THREE-JUDGE MERGER
COURT SIMPLY DID NOT EXIST.  NOR CAN I ACCEPT THE COURT'S POSITION THAT
IN REVIEWING THE CONCLUSIONS OF THE BANKRUPTCY COURT IT SHOULD APPLY A
STANDARD OF REVIEW THAT ATTACHES GREAT WEIGHT TO THE CONCLUSIONS OF
THAT COURT RATHER THAN TO THOSE OF THE COMMISSION.  OUR PRIOR CASES
INDICATE THAT THE CORRECT RULE IS JUST THE OPPOSITE.  IN SUM, THE COURT
FIRST DISPOSES OF THE THREE-JUDGE COURT'S OPINION BY ASSUMING THAT THE
COURT SHOULD HAVE ABSTAINED, AND IT THEN ADOPTS A DEFERENTIAL POSTURE
TOWARD THE CONCLUSION OF THE BANKRUPTCY COURT.  IN SO DOING THE COURT
CLEARS THE WAY FOR ITS AFFIRMANCE OF THE BANKRUPTCY COURT.  THE COURT'S
APPROACH AND THE RESULT IT REACHES ARE INTIMATELY RELATED, AND I REGRET
THAT I CANNOT AGREE WITH EITHER. 

   II 

ON THE QUESTION OF VALUING THE NEW HAVEN'S ASSETS, THE TASKS WHICH
THE THREE-JUDGE MERGER COURT AND THE BANKRUPTCY COURT WERE CALLED UPON
TO PERFORM IN THESE CASES WERE VIRTUALLY IDENTICAL, AND FOR BOTH COURTS
THAT TASK WAS A NARROWLY CIRCUMSCRIBED ONE.  THE STATUTES GOVERNING
REVIEW IN BOTH COURTS PROVIDE THE SAME FLEXIBLE STANDARD:  UNDER SEC.
77(E) OF THE BANKRUPTCY ACT THE BANKRUPTCY COURT WAS TO DETERMINE IF
THE TERMS FOR THE SALE OF THE NEW HAVEN'S ASSETS WERE "FAIR AND
EQUITABLE," AND UNDER SECS. 5(2)(B) AND (D) OF THE INTERSTATE COMMERCE
ACT THE THREE-JUDGE COURT WAS TO ENSURE THAT THE TERMS OF THE MERGER
AND INCLUSION WERE "JUST AND REASONABLE" AND "EQUITABLE."  MORE
IMPORTANT, OUR PREVIOUS CASES LEAVE NO DOUBT THAT THE TWO DISTRICT
COURTS AND, ACCORDINGLY, THIS COURT ARE PERMITTED ONLY A LIMITED SCOPE
FOR THEIR REVIEW OF THE COMMISSION'S VALUATION FINDINGS.  IN ECKER V.
WESTERN PACIFIC R. CO., 318 U.S. 448, 472, THIS COURT EMPHASIZED THAT
UNDER SEC. 77(E) OF THE BANKRUPTCY ACT, "VALUATION IS A FUNCTION
LIMITED TO THE COMMISSION, WITHOUT THE NECESSITY OF APPROVAL BY THE
(BANKRUPTCY) COURT."  THE COURT ELABORATED ITS HOLDING THIS WAY: 

"THE FUNCTION OF VALUATION THUS LEFT TO THE COMMISSION IS THE
DETERMINATION OF THE WORTH OF THE PROPERTY VALUED, WHETHER STATED IN
DOLLARS, IN SECURITIES OR OTHERWISE.  ONE OF THE PRIMARY OBJECTS OF THE
BILL WS THE ELIMINATION OF OBSTRUCTIVE LITIGATION ON THE ISSUE OF
VALUATION AND THE FORM FINALLY CHOSEN APPROACHED AS NEAR TO THAT
POSITION AS SEEMED TO THE DRAFTSMEN LEGALLY POSSIBLE.  JUDICIAL
REEXAMINATION WAS NOT CONSIDERED DESIRABLE.  . . . THE LANGUAGE CHOSEN
LEAVES TO THE COMMISSION, WE THINK, THE DETERMINATION OF VALUE WITHOUT
THE NECESSITY OF A REEXAMINATION BY THE COURT, WHEN THAT DETERMINATION
IS REACHED WITH MATERIAL EVIDENCE TO SUPPORT THE CONCLUSION AND IN
ACCORDANCE WITH LEGAL STANDARDS."  318 U.S.,AT 472-473.  SEE ALSO
RECONSTRUCTION FINANCE CORP. V. DENVER & R.G.W.R. CO., 328 U.S. 495,
508-509; GROUP OF INSTITUTIONAL INVESTORS V. CHICAGO, M., ST. P. & P.R.
CO., 318 U.S. 523, 536-542.  THESE CASES MAKE IT CLEAR THAT CONGRESS
DELEGATED THE VALUATION FUNCTION TO THE COMMISSION AND THAT THE
COMMISSION'S DETERMINATIONS CAN BE REVIEWED BY THE FEDERAL COURTS UNDER
SEC. 77(E) ONLY TO DETERMINE WHETHER THEY ARE SUPPORTED BY SUBSTANTIAL
EVIDENCE AND CONFORM TO THE APPLICABLE STATUTORY STANDARDS. 

THE SCOPE OF REVIEW OF THE THREE-JUDGE MERGER COURT UNDER SEC. 5 OF
THE INTERSTATE COMMERCE ACT IS VIRTUALLY IDENTICAL TO THAT OF THE
REORGANIZATION COURT UNDER SEC. 77.  THE FUNCTION OF THE THREE-JUDGE
COURT IS ONLY TO DETERMINE IF THE COMMISSION'S ACTIONS "ARE BASED UPON
SUBSTANTIAL EVIDENCE AND TO GUARD AGAINST THE POSSIBILITY OF GROSS
ERROR OR UNFAIRNESS."  PENN-CENTRAL MERGER CASES, 389 U.S. 486, 524. 
IF A COURT FINDS THE COMMISSION'S "CONCLUSIONS TO BE EQUITABLE AND
RATIONAL," IT SHOULD NOT, AS IT SEEMS TO ME THIS COURT DOES TODAY,
"SECOND-GUESS EACH STEP IN THE COMMISSION'S PROCESS OF DELIBERATION." 
IBID. 

THE REASONS COMPELLING SUCH JUDICIAL RESTRAINT LIE NOT ONLY IN THE
ACCUMULATED EXPERTISE OF THE COMMISSION BUT ALSO IN THE INHERENT
UNCERTAINTY OF THE VALUATION PROCESS ITSELF.  "AN INTELLIGENT ESTIMATE
OF PROBABLE FUTURE VALUES . . . , AND EVEN INDEED OF PRESENT ONES, IS
AT BEST AN APPROXIMATION.  . . . THERE IS LEFT IN EVERY CASE A
REASONABLE MARGIN OF FLUCTUATION AND UNCERTAINTY."  DAYTON POWER &
LIGHT CO. V. PUBLIC UTILITIES COMM'N, 292 U.S. 290, 310.  THESE
INEVITABLE UNCERTAINTIES OF A COMPLEX VALUATION WERE GREATLY MAGNIFIED
IN THIS CASE, FOR HERE THE COMMISSION WAS CALLED UPON TO DETERMINE WHAT
VALUES THE NEW HAVEN PROPERTIES WOULD HAVE, AS THE THREE-JUDGE COURT
PUT IT, IN "A LIQUIDATION THAT NEVER HAPPENED, THAT IN THE WORLD AS WE
KNOW IT SCARCELY COULD HAVE HAPPENED, AND THAT, IF IT HAD HAPPENED,
COULD HAVE HAPPENED IN ANY ONE OF A NUMBER OF EQUALLY IMAGINARY WAYS. 
. . . "  305 F.SUPP.,AT 1056.  GIVEN THE EXTREMELY HYPOTHETICAL CONTEST
IN WHICH THE COMMISSION MADE ITS DETERMINATIONS, IT IS IMPOSSIBLE FOR
ANY REVIEWING COURT TO KNOW IF THE COMMISSION'S FINDINGS EVEN
APPROXIMATED THE TRUE LIQUIDATION VALUE OF THE RAILROAD.  BECAUSE OF
THIS ENHANCED UNCERTAINTY, THE AREA IN WHICH THE COMMISSION WAS
REQUIRED TO EXERCISE ITS JUDGMENT IN THIS CASE WAS UNUSUALLY WIDE, AND
A REVIEWING COURT COULD PROPERLY UPSET ITS CONCLUSIONS IN ONLY THE
CLEAREST INSTANCES OF ABUSE. 

I INDICATED PREVIOUSLY THAT WHEN THESE CRITERIA FOR JUDICIAL REVIEW
ARE TAKEN INTO ACCOUNT, IT BECOMES IMPOSSIBLE FOR ME TO BELIEVE THAT
THE COMMISSON ABUSED ITS DISCRETION IN DECIDING AS IT DID THE
EXCEEDINGLY COMPLEX AND DIFFICULT VALUATION ISSUES DISCUSSED AT LENGTH
IN THE COURT'S OPINION.  THE THREE-JUDGE MERGER COURT CONCLUDED THAT
THE COMMISSION'S FINDINGS IN THIS REGARD WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE AND CONSISTENT WITH RELEVANT PRINCIPLES, AND, AFTER REVIEWING
THE RECORD AND THE OPINION OF THE COMMISSION, I FIND MYSELF IN
WHOLEHEARTED AGREEMENT WITH THE THREE-JUDGE COURT'S CONCLUSION.  JUDGE
FRIENDLY'S FINE OPINION LEAVES NO DOUBT IN MY MIND THAT THE COURT FOR
WHICH HE WROTE WAS FULLY AWARE OF BOTH THE LIMITED SCOPE OF ITS
REVIEWING POWER AND ALSO ITS OBLIGATION WITHIN THOSE LIMITS TO
SCRUTINIZE CAREFULLY EACH OF THE SIGNIFICANT DECISIONS OF THE
COMMISSION.  THUS, THE COURT ASSUMED THAT "(IF THE COMMISSION MADE
DEMONSTRABLE ERRORS, IT IS OUR DUTY TO CORRECT THESE . . . ," BUT,
UNLIKE THE COURT TODAY, IT REFUSED "TO RE-EXAMINE EVERY JUDGMENT MADE
BY THE COMMISSION AND TO SUBSTITUTE OUR OWN WHENEVER WE THINK IT
BETTER."  305 F.SUPP.,AT 1056.  THE THREE-JUDGE COURT'S OPINION SETS
OUT FULLY AND ADEQUATELY THE REASONS WHY THE COMMISSION SHOULD BE
AFFIRMED ON EACH OF THE DISPUTED POINTS, AND THERE IS NOTHING TO BE
GAINED FROM MY REPEATING THOSE REASONS HERE. 

        III 

THE COURT'S OPINION AFFIRMING THE BANKRUPCY COURT ATTEMPTS TO AVOID
THE FORCE OF THE FOREGOING CONSIDERATONS BY FIRST HOLDING THAT THE
THREE-JUDGE COURT SHOULD HAVE ABSTAINED FROM REACHING THE VALUATION
ISSUE AND THEN ASSUMING FOR SOME REASON WHICH IS NOT CLEAR TO ME THAT
THIS COURT SHOULD APPLY A LIMITED SCOPE OF REVIEW TO THE VALUATION
FINDINGS OF THE BANKRUPTCY COURT RATHER THAN TO THE COMMISSION'S
FINDINGS.  THIS APPROACH IS, I SUBMIT, PREMISED ON ERRONEOUS
ASSUMPTIONS. 

        A 

THERE CAN BE NO QUESTION BUT THAT UNDER RELEVANT FEDERAL STATUTES
BOTH THE THREE-JUDGE MERGER COURT AND THE BANKRUPTCY COURT HAD
JURISDICTION TO REVIEW THE COMMISSION'S DETERMINATION OF THE NEW
HAVEN'S LIQUIDATION VALUE.  SEE 11 U.S.C. 205; 28 U.S.C. 1336(A), 2321
2325.  THE COURT TODAY DOES NOT REALLY DISPUTE THIS CONCLUSION, BUT
ARGUES INSTEAD THAT THE BANKRUPTCY COURT MIGHT HAVE HAD "PRIMARY
JURISDICTION" TO DECIDE THE VALUATION ISSUES, CITING TO SUPPORT THIS
IDEA SEVERAL QUITE INAPPOSITE CASES DEALING WITH IN REM JURISDICTION,
AND, ALTERNATIVELY, THAT THE THREE-JUDGE COURT SHOULD HAVE "ABSTAINED"
BECAUSE THE ONLY REMAINING ISSUE WAS "THE VALUE TO BE ACCORDED THE
ASSETS TRANSFERRED, AND RESOLUTION OF THAT ISSUE WAS THE ESSENCE OF THE
SEC. 77 PROCESS."  ANTE, AT 428.  ACTUALLY, THE ONLY "PRIMARY
JURISDICTION" INVOLVED HERE WAS THE PRIMARY JURISDICTION OF THE
COMMISSION TO DECIDE QUESTIONS OF VALUATION.  MOREOVER, THE QUESTION OF
THE NEW HAVEN'S VALUE MAY WELL HAVE BEEN CENTRAL TO THE SEC. 77
PROCEDINGS, BUT, IN ORDERING THE NEW HAVEN'S INCLUSION IN PENN CENTRAL,
THE COMMISSION EXERCISED AUTHORITY UNDER BOTH SEC. 5 OF THE INTERSTATE
COMMERCE ACT AND SEC. 77 OF THE BANKRUPTCY ACT.  THE QUESTION OF THE
NEW HAVEN'S VALUE WAS EQUALLY CENTRAL TO THE REQUIREMENT UNDER SEC. 5
THAT THE COMMISSION DETERMINE BEFORE ISSUING AN INCLUSION ORDER THAT
THE TERMS OF THE INCLUSION ARE "EQUITABLE."  49 U.S.C. 5(2)(D).  REVIEW
OF THE COMMISSION'S VALUATION WAS THEREFORE AS APPROPRIATE ON THE
MERGER AND INCLUSION SIDE AS ON THE BANKRUPTCY SIDE, AND THE COURT'S
ARGUMENT TO THE CONTRARY IS COMPLETELY CONCLUSORY.  ACCORDINGLY, I
THINK THE THREE-JUDGE MERGER COURT WAS CORRECT WHEN IT DECIDED THAT,
"UNFORTUNATE AS THE DUPLICITOUS SYSTEM OF REVIEW MAY BE, WE SEE NO
BASIS ON WHICH WE CAN PROPERLY DECLINE TO EXERCISE THE JURISDICTION
CONFERRED UPON US. . . . "  289 F.SUPP.  418, 425. 

        B 

THE COURT ALSO ERRS, I THINK, WHEN IT ASSUMES THAT IT SHOULD DEFER
TO THE FINDINGS OF THE BANKRUPTCY COURT RATHER THAN TO THOSE OF THE
COMMISSION.  THE REASONING BEHIND THIS NOVEL APPROACH IS NEVER CLEARLY
STATED.  AT TIMES, THE COURT SEEMS TO TAKE THE VIEW THAT THE PROPER
ROLE OF THE BANKRUPTCY COURT ON VALUATION QUESTIONS LIES SOMEWHERE
BETWEEN THAT OF A TRIAL COURT CHARGED WITH THE RESPONSBILITY OF MAKING
A FAIR ESTIMATE OF THE VALUE OF THE NEW HAVEN PROPERTIES AND AN
APPELLATE COURT WHOSE RESPONSBILITY IS LIMITED TO REVIEWING THE
COMMISSION'S VALUATION.  THE ADOPTION OF THIS HYBRID ROLE FOR THE
BANKRUPTCY COURT IS STRENUOUSLY URGED UPON US IN SOME OF THE BRIEFS IN
THIS CASE.  SUCH A THEORY ARGUABLY JUSTIFIES A DEFERENTIAL ATTITUDE ON
THE PART OF THIS COURT TOWARD THE REORGANIZATION COURT'S DETERMINATIONS
AND ALSO PROVIDES AT LEAST A PARTIAL JUSTIFICATION FOR THE BANKRUPTCY
COURT'S DE NOVO VALUATION ESTIMATES.  HOWEVER, THE NOTION THAT THE
BANKRUPTCY COURT HAS SPECIAL POWERS IN REVIEWING COMMISSION VALUATIONS
AND IN WEIGHING THE PUBLIC INTEREST IS COMPLETELY UNTENABLE IN LIGHT OF
WESTERN PACIFIC AND THE CASES FOLLOWING IT.  THOSE CASES MAKE IT CLEAR
THAT WHILE THE BANKRUPCY COURT DOES HAVE CERTAIN SPECIAL FUNCTIONS IN
SEC. 77 REORGANIZATIONS, THE ROLE OF THE BANKRUPTCY COURT IN THE AREAS
OF CONCERN HERE IS SIMPLY THAT OF AN APPELLATE COURT.  AS WE SAID IN
RECONSTRUCTION FINANCE CORP. V. DENVER & R.G.W.R. CO., 328 U.S. 495,
508: 

"(THE EXPERIENCE AND JUDGMENT OF THE COMMISSION MUST BE RELIED UPON
FOR FINAL DETERMINATIONS OF VALUE AND OF MATTERS AFFECTING THE PUBLIC
INTEREST, SUBJECT TO JUDICIAL REVIEW TO ASSURE COMPLIANCE WITH
CONSTITUTIONAL AND STATUTORY REQUIREMENTS."  TO LIKE EFFECT WAS THE
CONCLUSION REACHED IN CHICAGO, R.I. & P.R. CO. V. FLEMING, 157 F.2D
241, 245, A CASE FOLLOWING WESTERN PACIFIC: 

"(THE COMMISSION IS ALLOWED WIDE DISCRETION IN REACHING ITS
CONCLUSIONS, AND IF ITS FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE
AND FOLLOW LEGAL STANDARDS THEY MUST BE AFFIRMED BY THE COURTS.  . . .
" IN MY OPINION THESE AND OTHER CASES PRECLUDE THE NOTION THAT THE
BANKRUPTCY COURT HAS SPECIAL FACTFINDING AND INTEREST-WEIGHING
FUNCTIONS SUFFICIENT TO JUSTIFY THIS COURT'S VIEWING IT AS A QUASI
TRIAL COURT.     ALTERNATIVELY, THE MAJORITY'S POSITION MIGHT BE THAT
EVEN THOUGH THE REORGANIZATION COURT HAD NO SPECIAL REVIEW POWERS, THIS
COURT SHOULD STILL GIVE GREAT WEIGHT TO ITS CONCLUSIONS CONCERNING THE
COMMISSION'S PRICE DETERMINATIONS.  THIS POSITION MIGHT HAVE SOME FORCE
WERE THERE GROUNDS FOR CONFIDENCE THAT THE BANKRUPTCY COURT IN THIS
CASE APPLIED THE CORRECT SCOPE OF REVIEW IN EXAMINING THE COMMISSION
DETERMINATIONS, BUT NO SUCH GROUNDS FOR CONFIDENCE EXIST HERE.  THIS
COURT HAS AN OBLIGATION TO EXAMINE CAREFULLY THE OPINION OF THE
BANKRUPTCY COURT TO DETERMINE IF THAT COURT DID IN FACT APPLY THE
CORRECT SCOPE OF REVIEW.  SUCH AN INQUIRY NECESSARILY INVOLVES THE
COURT IN DETERMINING IF THE AGENCY'S DECISIONS ARE CONSISTENT WITH
APPLICABLE LAW AND SUPPORTED BY SUBSTANTIAL EVIDENCE.  AS I INDICATED
EARLIER, THE RECORD IN THIS CASE SIMPLY DOES NOT SUPPORT THE CONCLUSION
THAT THE REORGANIZATION COURT STAYED WITHIN ITS PROPER SCOPE OF REVIEW
OF THE COMMISSION DETERMINATIONS.  SINCE THE REORGANIZATION COURT
APPLIED THE WRONG REVIEWING STANDARD, THERE IS NO JUSTIFICATION FOR
THIS COURT'S GIVING ANY DEFERENCE TO THE VALUATION DETERMINATIONS OF
THAT COURT. 

THE COURT'S OPINION IS THUS POISED BETWEEN TWO EQUALLY
UNSATISFACTORY ALTERNATIVES.  ITS CONCLUSIONS MUST EITHER REST ON THE
THEORY THAT THE REORGANIZATION COURT HAS EXTRAORDINARY REVIEWING
POWERS, A THEORY WHICH I THINK IS PRECLUDED BY WESTERN PACIFIC AND THE
CASES WHICH FOLLOW IT, OR THE COURT MUST TAKE THE POSITION THAT THE
REORGANIZATION COURT CORRECTLY APPLIED THE WESTERN PACIFIC STANDARD, A
CONCLUSION WHICH SEEMS TO ME UNTENABLE IN LIGHT OF THE RECORD IN THESE
CASES AND THE OPINION OF THE THREE-JUDGE MERGER COURT. 

        IV 

TODAY'S DECISION WILL HAVE THE EFFECT OF GREATLY BURDENING THE PENN
CENTRAL BY INCREASING THE AMOUNT THAT COMPANY OWES TO THE NEW HAVEN
BONDHOLDERS BY AN ADDITIONAL $28,000,000.  THE IMPOSITION OF THIS
ADDITIONAL BURDEN CAN ONLY BRING ABOUT A FURTHER DETERIORATION OF THE
PENN CENTRAL'S ALREADY SERIOUSLY COMPROMISED FINANCIAL POSITION /3/
AND WILL FURTHER REDUCE THE ULTIMATE CHANCES OF SUCCESS OF THIS VENTURE
IN WHICH THE PUBLIC HAS A CONSIDERABLE STAKE.  THE PUBLIC INTEREST IN
THESE CASES CERTAINLY LIES IN ESTABLISHING AND MAINTAINING THE PENN
CENTRAL AS A VIABLE PRIVATE ENTERPRISE WITH REASONABLE RATES AND
EFFICIENT SERVICES.  HERE THE COMMISSION HAD A DUTY "TO PLAN
REORGANIZATIONS WITH AN EYE TO THE PUBLIC INTEREST AS WELL AS THE
PRIVATE WELFARE OF CREDITORS AND STOCKHOLDERS."  RECONSTRUCTION FINANCE
CORP. V. DENVER & R.G.W.R. CO., 328 U.S. 495, 535.  SEE ALSO THE PENN
CENTRAL MERGER CASES, 389 U.S. 486, 510-511.  BECAUSE PENN CENTRAL'S
ECONOMIC SOUNDNESS WILL BE VITALLY AFFECTED BY THE PRICE IT HAS TO PAY
FOR THE NEW HAVEN ASSETS, THE COMMISSION HAD AN OBLIGATION WHICH I
THINK IT FULFILLED IN THESE CASES, TO PREVENT AN OVERVALUATION OF THE
NEW HAVEN ASSETS WHICH MIGHT UNNECESSARILY JEOPARDIZE THE NEWLY MERGED
PENN CENTRAL SYSTEM.  IF THE COMMISSION RESOLVED CLOSE AND FAIRLY
DEBATABLE ISSUES OF VALUATION IN FAVOR OF PENN CENTRAL RATHER THAN THE
NEW HAVEN BONDHOLDERS, THE AGENCY'S ACTIONS WERE WHOLLY JUSTIFIABLE IN
TERMS OF ITS STATUTORY MANDATE TO PROTECT THE PUBLIC.  ALTHOUGH THE
COURTS MUST REVIEW COMMISSION DETERMINATIONS OF VALUE TO GUARANTEE THAT
THOSE VALUATIONS ARE "FAIR AND EQUITABLE" TO THE BONDHOLDERS, THAT
REVIEWING AUTHORITY DOES NOT PERMIT A COURT TO SUBSTITUTE ITS VIEWS FOR
THOSE OF THE COMMISSION.  JUDICIAL REVIEW OF COMMISSION VALUATIONS MUST
BE EXERCISED IN LIGHT OF THE FACT THAT "CONGRESS HAS ENTRUSTED THE
COMMISSION, NOT THE COURTS, WITH THE RESPONSIBILITY OF FORMULATING A
PLAN OF REORGANIZATON WHICH 'WILL BE COMPATIBLE WITH THE PUBLIC
INTEREST.'  SEC. 77(D)."  GROUP OF INSTITUTIONAL INVESTORS V. CHICAGO,
M., ST. P. & P.R. CO., 318 U.S. 523, 544.  HERE THE COMMISSION STRUCK A
BALANCE BETWEEN PUBLIC AND PRIVATE INTERESTS THAT WAS CLEARLY WITHIN
ITS DISCRETION, AND I THINK IT IS BOTH IMPROPER AND UNWISE FOR THIS
COURT TO UPSET THAT BALANCE AND PLACE AN ADDITIONAL $28,000,000 BURDEN
ON THE PENN CENTRAL, A BURDEN THAT I FEAR MAY ULTIMATELY BE BORNE BY
THE CONSUMERS OF THE PENN CENTRAL'S SERVICES OR BY THE FEDERAL
TREASURY. 

FOR THE REASONS STATED ABOVE, I WOULD AFFIRM THE JUDGMENT OF THE
THREE-JUDGE MERGER COURT ON THE VALUATION ISSUE AND WOULD REVERSE THE
JUDGMENT OF THE BANKRUPCY COURT TO EXTENT THAT IT IS INCONSISTENT WITH
THE THREE-JUDGE COURT. 

/1/  THE THREE-JUDGE MERGER COURT CORRECTED THE COMMISSION'S FINDING
ON MINOR VALUATION POINTS WHICH ARE NOT RELEVANT HERE.  THE COMMISSION
HAS SUBSEQUENTLY MADE FINDINGS CONSISTENT WITH THE THREE-JUDGE COURT
OPINION ON THESE QUESTIONS.  334 I.C.C. 528. 

/2/  OF COURSE, THE BANKRUPTCY COURT AND THE THREE-JUDGE MERGER
COURT AGREED ON MANY OF THE ISSUES THAT WERE PRESENTED TO THEM, SOME OF
WHICH WERE QUESTIONS OF VALUATION AND SOME OF WHICH WERE NOT.  APART
FROM THE QUESTION OF THE UNDERWRITING PLAN, ANTE, AT 488-489, THE COURT
TODAY AFFIRMS BOTH DISTRICT COURTS ON THOSE ISSUES ON WHICH BOTH
AGREED, AND I CONCUR IN THAT RESULT.  I DIFFER WITH THE COURT, HOWEVER,
ON ITS HANDLING OF ALL THOSE QUESTIONS OF VALUATION OVER WHICH THE TWO
DISTRICT COURTS DISAGREED. 

/3/  AS THE COURT NOTES IN A FOOTNOTE TO ITS OPINION, ANTE, AT 399,
THE PENN CENTRAL TRANSPORTATION COMPANY HAS FILED A PETITION FOR
REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY ACT IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. 

WHITNEY NORTH SEYMOUR ARGUED THE CAUSE FOR MANUFACTURERS HANOVER
TRUST CO. WITH HIM ON THE BRIEF WERE HORACE J. MCAFEE AND ALBERT X.
BADER, JR. LESTER C. MIGDAL ARGUED THE CAUSE FOR NEW YORK, NEW HAVEN &
HARTFORD RAILROAD CO. FIRST MORTGAGE 4% BONDHOLDERS COMMITTEE.  WITH
HIM ON THE BRIEFS WAS LAWRENCE W. POLLACK.  JOSEPH AUERBACH ARGUED THE
CAUSE FOR SMITH, TRUSTEE OF THE PROPERTY OF NEW YORK, NEW HAVEN &
HARTFORD RAILROAD CO. WITH HIM ON THE BRIEFS WERE JAMES WM. MOORE,
ROBERT G. BLEAKNEY, JR., AND MORRIS RAKER.  LEONARD S. GOODMAN ARGUED
THE CAUSE FOR THE UNITED STATES ET AL.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN, DEPUTY
SOLICITOR GENERAL SPRINGER, JOHN H. D. WIGGER, AND ROBERT W. GINNANE. 
HUGH B. COX ARGUED THE CAUSE FOR PENN CENTRAL TRANSPORTATION CO. WITH
HIM ON THE BRIEF WERE ROSWELL B. PERKINS, ULRICH SCHWEITZER, SAMUEL E.
GATES, ROBERT L. KING, AND HARVEY J. GOLDSCHMID.  JOSEPH SCHREIBER AND
WILKIE BUSHBY FILED BRIEFS FOR THE CHASE MANHATTAN BANK, N. A. LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, DUNTON F. TYNAN, ASSISTANT SOLICITOR
GENERAL, AND WALTER J. MYSKOWSKI FILED A BRIEF FOR THE STATE OF NEW
YORK.  ROBERT K. KILLIAN, ATTORNEY GENERAL, SAMUEL KANELL, SPECIAL
ASSISTANT ATTORNEY GENERAL, AND JACK RUBIN, ASSISTANT ATTORNEY GENERAL,
FILED A BRIEF FOR THE STATE OF CONNECTICUT.  HERBERT F. DE SIMONE,
ATTORNEY GENERAL OF RHODE ISLAND, AND W. SLATER ALLEN, JR., SPECIAL
ASSISTANT ATTORNEY GENERAL, JOINED IN THE BRIEFS FOR THE STATES OF NEW
YORK AND CONNECTICUT. 
..END :
























MORRIS V. SCHOONFIELD, 399 U.S. 508 


       MORRIS ET AL. V. SCHOONFIELD, WARDEN, ET AL.

    APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

          DISTRICT OF MARYLAND

        NO. 782.  ARGUED APRIL 22, 1970-- DECIDED JUNE 29, 1970 


CASE REMANDED FOR RECONSIDERATION IN LIGHT OF INTERVENING MARYLAND
LEGISLATION AND DECISION IN WILLIAMS V. ILLINOIS, ANTE, P. 235. 

301 F.SUPP.  158, VACATED AND REMANDED. 

PER CURIAM. 

WE NOTED PROBABLE JURISDICTION /1/  AND SET THE CASE FOR ORAL
ARGUMENT WITH WILLIAMS V. ILLINOIS, ANTE, P. 235, DECIDED TODAY. 
HOWEVER, MARYLAND HAS RECENTLY ENACTED LEGISLATION /2/  DEALING
DIRECTLY WITH THE ISSUE PRESENTED, AND OUR HOLDING IN WILLIAMS, THAT AN
INDIGENT MAY NOT BE IMPRISONED BEYOND THE MAXIMUM TERM SPECIFIED BY
STATUTE SOLELY BECAUSE OF HIS FAILURE TO PAY A FINE AND COURT COSTS,
MAY SHED FURTHER LIGHT ON THE QUESTION RAISED HERE.  WE THEREFORE
VACATE THE JUDGMENT AND REMAND THE CASE TO THE DISTRICT COURT FOR
RECONSIDERATION IN LIGHT OF THE INTERVENING LEGISLATION AND OUR HOLDING
IN WILLIAMS V. ILLINOIS, SUPRA. 

MR.JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

/1/  397 U.S. 960. 

/2/  CHAPTER 147 OF THE 1970 LAWS OF MARYLAND (APPROVED APRIL 15,
1970). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL JOIN, CONCURRING. 

I AGREE THAT THIS CASE SHOULD BE REMANDED FOR RECONSIDERATION IN
LIGHT OF OUR OPINION IN WILLIAMS V. ILLINOIS, ANTE, P. 235, AND THE
RECENT ENACTMENT BY THE MARYLAND GENERAL ASSEMBLY OF NEW LEGISLATION
BEARING ON THE QUESTIONS PRESENTED. 

HOWEVER, I DEEM IT APPROPRIATE TO STATE MY VIEW THAT THE SAME
CONSTITUTIONAL DEFECT CONDEMNED IN WILLIAMS ALSO INHERES IN JAILING AN
INDIGENT FOR FAILING TO MAKE IMMEDIATE PAYMENT OF ANY FINE, WHETHER OR
NOT THE FINE IS ACCOMPANIED BY A JAIL TERM AND WHETHER OR NOT THE JAIL
TERM OF THE INDIGENT EXTENDS BEYOND THE MAXIMUM TERM THAT MAY BE
IMPOSED ON A PERSON WILLING AND ABLE TO PAY A FINE.  IN EACH CASE, THE
CONSTITUTION PROHIBITS THE STATE FROM IMPOSING A FINE AS A SENTENCE AND
THEN AUTOMATICALLY CONVERTING IT INTO A JAIL TERM SOLELY BECAUSE THE
DEFENDANT IS INDIGENT AND CANNOT FORTHWITH PAY THE FINE IN FULL. 

AS I UNDERSTAND IT, WILLIAMS V. ILLINOIS DOES NOT MEAN THAT A STATE
CANNOT JAIL A PERSON WHO HAS THE MEANS TO PAY A FINE BUT REFUSES OR
NEGLECTS TO DO SO.  NEITHER DOES IT FINALLY ANSWER THE QUESTION WHETHER
THE STATE'S INTEREST IN DETERRING UNLAWFUL CONDUCT AND IN ENFORCING ITS
PENAL LAWS THROUGH FINES AS WELL AS JAIL SENTENCES WILL JUSTIFY
IMPOSING AN "EQUIVALENT" JAIL SENTENCE ON THE INDIGENT WHO, DESPITE HIS
OWN REASONABLE EFFORTS AND THE STATE'S ATTEMPT AT ACCOMMODATION, IS
UNABLE TO SECURE THE NECESSARY FUNDS.  BUT WILLIAMS MEANS, AT MINIMUM,
THAT IN IMPOSING FINES AS PUNISHMENT FOR CRIMINAL CONDUCT MORE CARE
MUST BE TAKEN TO PROVIDE FOR THOSE WHOSE LACK OF FUNDS WOULD OTHERWISE
AUTOMATICALLY CONVERT A FINE INTO A JAIL SENTENCE. 

ROBERT G. FISHER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE AARON M. SCHREIBER, ELSBETH LEVY BOTHE, AND MELVIN L.
WULF. 

GEORGE L. RUSSELL, JR., ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON
THE BRIEF WERE FRANCIS B. BURCH, ATTORNEY GENERAL OF MARYLAND, ALFRED
J. O'FERRALL III, ASSISTANT ATTORNEY GENERAL, AMBROSE T. HARTMAN, AND
ROGER C. DUNCAN. 
..END :





















SIMMONS V. WEST HAVEN HOUSING, 399 U.S. 510 


       SIMMONS ET UX. V. WEST HAVEN HOUSING AUTHORITY

      APPEAL FROM THE APPELLATE DIVISION OF THE CIRCUIT COURT OF

           CONNECTICUT

        NO. 81.  ARGUED DECEMBER 8, 1969-- DECIDED JUNE 29, 1970 


THE APPEAL, INVOLVING THE ISSUE WHETHER A CONNECTICUT STATUTORY
REQUIREMENT THAT TENANTS WISHING TO APPEAL FROM AN EVICTION JUDGMENT
MUST POST A BOND OFFENDS THE DUE PROCESS OR EQUAL PROTECTION CLAUSE IF
APPLIED TO FORECLOSE APPELLATE REVIEW FOR INDIGENT TENANTS, IS
DISMISSED, AS THE RECORD IS AMBIGUOUS REGARDING THE UNDERLYING REASON
APPELLANTS WERE DENIED AN OPPORTUNITY TO APPEAL THE EVICTION JUDGMENT. 

5 CONN.CIR.  282, 250 A.2D 527, DISMISSED. 

PER CURIAM. 

WE NOTED PROBABLE JURISDICTION IN THIS CASE TO DECIDE WHETHER SEC.
52-542 OF THE CONNECTICUT GENERAL STATUTES /1/  REQUIRING A BOND FOR
THE PROTECTION OF HIS LANDLORD FROM A TENANT WHO WISHED TO APPEAL FROM
A JUDGMENT IN A SUMMARY EVICTION PROCEEDING, OFFENDS EITHER THE DUE
PROCESS OR EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT IF
APPLIED TO FORECLOSE APPELLATE REVIEW FOR THOSE TOO POOR TO POST THE
BOND, 394 U.S. 957 (1969). 

BECAUSE OF AN AMBIGUITY IN THE RECORD CONCERNING THE UNDERLYING
REASON THESE APPELLANTS WERE DENIED AN OPPORTUNITY TO APPEAL THE TRIAL
COURT'S JUDGMENT ORDERING THAT THEY BE EVICTED, WE NOW CONCLUDE THAT
THIS APPEAL SHOULD BE DISMISSED, DEBACKER V. BRAINARD, 396 U.S. 28
(1969); RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549 (1947). 

AFTER UNSUCCESSFULLY LITIGATING IN THE TRIAL COURT A SUMMARY
EVICTION PROCEEDING BEGUN BY THEIR LANDLORDS, APPELLANTS MOVED IN THE
TRIAL COURT FOR A WAIVER OF THE BOND REQUIREMENT SO THAT THEY MIGHT
APPEAL.  THE TRIAL COURT, APPARENTLY OF THE VIEW THAT IT HAD THE POWER
TO WAIVE THE STATUTORY BOND REQUIREMENT IN AN APPROPRIATE CASE, DENIED
APPELLANTS' MOTION ON A FINDING THAT "THIS APPEAL IS BEING TAKEN FOR
THE PURPOSE OF DELAY."  APP. 23.  APPELLANTS SOUGHT REVIEW OF THE TRIAL
COURT'S DENIAL OF THEIR MOTION IN THE CONNECTICUT CIRCUIT COURT, AND
THAT COURT DENIED REVIEW AND DISMISSED APPELLANTS' APPEAL.  IT IS
UNCLEAR FROM THAT COURT'S OPINION, HOWEVER, WHETHER IT THOUGHT THE BOND
REQUIREMENT OF SEC. 52-542 LEFT NO ROOM FOR A WAIVER, /2/  OR INSTEAD
BASED ITS REFUSAL TO HEAR APPELLANTS' APPEAL IN PART ON THE TRIAL
COURT'S FINDING-- CITED IN THE CIRCUIT COURT'S OPINION /3/  -- THAT THE
APPEAL BEFORE IT WAS TAKEN ONLY FOR PURPOSE OF DELAY.  5 CONN.CIR. 
282, 250 A.2D 527 (1968).  APPELLANTS' PETITION TO THE SUPREME COURT OF
CONNECTICUT TO CERTIFY THE CASE FOR REVIEW WAS DECLINED. 

IN THESE CIRCUMSTANCES, WE DEEM IT INAPPROPRIATE FOR THIS COURT TO
DECIDE THE CONSTITUTIONAL ISSUE TENDERED BY APPELLANTS. 

              DISMISSED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  AT THE TIME OF THE DECISIONS BELOW IN THIS CASE, SEC. 52-542
PROVIDED: 

"BOND ON APPEAL; STAY OF EXECUTION.  WHEN ANY APPEAL IS TAKEN BY THE
DEFENDANT IN AN ACTION OF SUMMARY PROCESS, HE SHALL GIVE A SUFFICIENT
BOND WITH SURETY TO THE ADVERSE PARTY, TO ANSWER FOR ALL RENTS THAT MAY
ACCRUE OR, WHERE NO LEASE HAD EXISTED, FOR THE REASONABLE VALUE FOR
SUCH USE AND OCCUPANCY, DURING THE PENDENCY OF SUCH APPEAL, OR WHICH
MAY BE DUE AT THE TIME OF ITS FINAL DISPOSAL; AND EXECUTION SHALL BE
STAYED FOR FIVE DAYS FROM THE DATE JUDGMENT HAS BEEN RENDERED, BUT ANY
SUNDAY OR LEGAL HOLIDAY INTERVENING SHALL BE EXCLUDED IN COMPUTING SUCH
FIVE DAYS.  NO APPEAL SHALL BE TAKEN EXCEPT WITHIN SAID PERIOD, AND IF
AN APPEAL IS TAKEN WITHIN SAID PERIOD EXECUTION SHALL BE STAYED UNTIL
THE FINAL DETERMINATION OF THE CAUSE, UNLESS IT APPEARS TO THE JUDGE
WHO TRIED THE CASE THAT THE APPEAL WAS TAKEN FOR THE PURPOSE OF DELAY;
AND IF EXECUTION HAS NOT BEEN STAYED, AS HEREINBEFORE PROVIDED,
EXECUTION MAY THEN ISSUE, EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 52
543 TO 52-548, INCLUSIVE." 

THIS VERSION OF SEC. 52-542 HAS BEEN REPEALED AND A REVISION
SUBSTITUTED EFFECTIVE AS OF OCTOBER 1, 1969, SEE CONN. PUB. ACTS NO.
296 (1969). 

/2/  THE OPINION STATES IN ONE PLACE THAT "(A) SUFFICIENT BOND WITH
SURETY IS ESSENTIAL TO A VALID APPEAL."  5 CONN.CIR.  282, 285, 250
A.2D 527, 529 (1968).  THE COURT ALSO SAID THAT "(WANT OF BOND WITH
SURETY, WHERE BOND WITH SURETY IS BY STATUTE A PREREQUISITE OF REVIEW,
FURNISHES A SUFFICIENT GROUND OF DISMISSAL OF THE APPEAL."  ID., AT
288, 250 A.2D, AT 531.  AT ORAL ARGUMENT HERE, HOWEVER, THE STATE OF
CONNECTICUT, APPEARING AS AMICUS CURIAE, CONTENDED THAT THE STATUTORY
BOND REQUIREMENT COULD, IN AN APPROPRIATE CASE, BE WAIVED.  THE OPINION
OF THE CIRCUIT COURT DID NOT EXPRESSLY PASS ON THIS ISSUE, WHICH IT
APPEARS WAS NOT SETTLED UNDER CONNECTICUT LAW AT THE TIME OF ITS
DECISION.  A SUBSEQUENT DECISION OF A CONNECTICUT CIRCUIT COURT
SUGGESTS THAT THE BOND REQUIREMENT IS AN ABSOLUTE AND NECESSARY
CONDITION FOR AN APPEAL, BUT IT TOO DID NOT CONSIDER THE WAIVER
CONTENTION MADE BY THE STATE BEFORE THIS COURT, SEE HOUSING AUTHORITY
V. JONES, 5 CONN.CIR.  350, 252 A.2D 465 (1968).  MOREOVER, THIS
DECISION DID NOT CONSIDER THE EFFECT OF THE 1969 AMENDMENT TO SEC. 52
542, SEE N. 1, SUPRA. 

/3/  THE OPINION STATES IN ANOTHER PLACE: 

"ON JANUARY 19, 1968, THE TRIAL COURT HELD A SPECIAL HEARING ON THE
DEFENDANTS' APPLICATION FOR WAIVER OF SECURITY ON APPEAL.  THE COURT
FOUND THAT NO REND HAD BEEN PAID SINCE MAY 1, 1967, NOR HAD THE
DEFENDANTS OFFERED TO PAY ANY PART OF THE RENT DUE; THAT THE RECORD
CONTAINED 'DILATORY TACTICS, AND (WAS) LOADED WITH DEFENSES INTERPOSED
TO DELAY AND OBSTRUCT THE SUMMARY PROCESS ACTION'; AND THAT THE 'APPEAL
IS BEING TAKEN FOR THE PURPOSE OF DELAY.'  ACCORDINGLY, THE COURT
DENIED THE APPLICATION FOR WAIVER OF SECURITY ON APPEAL."  5
CONN.CIR.,AT 284, 250 A.2D, AT 529. 

THE SAME CIRCUIT COURT, IN LATER GRANTING THE LANDLORD'S MOTION FOR
AN ORDER TERMINATING A STAY OF EXECUTION OF THE EVICTION ORDER,
EXPRESSLY AFFIRMED THE TRIAL COURT'S FINDINGS SAYING: 

"WE HAVE BEFORE US THE ENTIRE FILE IN THE CASE.  THE RECORD AND
BRIEFS COMPRISE SOME 140 TYPEWRITTEN PAGES.  UPON A REVIEW OF THE WHOLE
MATTER, WE ARE SATISFIED THAT (THE TRIAL JUDGE) WAS JUSTIFIED IN
CONCLUDING, AS HE DID WHEN HE DENIED THE DEFENDANTS' APPLICATION FOR A
WAIVER OF SECURITY ON APPEAL, 'THAT THIS APPEAL IS BEING TAKEN FOR THAT
PURPOSE OF DELAY.'"  5 CONN.CIR.,AT 290, 250 A.2D, AT 532. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MARSHALL JOINS,
DISSENTING. 

THIS WAS A SUMMARY PROCEDURE BROUGHT BY A LANDLORD /1/  TO OBTAIN
POSSESSION FROM HIS TENANTS FOR NONPAYMENT OF RENT.  THE TRIAL COURT
FOUND FOR THE LANDLORD AND THE TENANTS APPEALED. 

CONNECTICUT LAW REQUIRES ONE TAKING AN APPEAL IN SUCH AN ACTION TO
POST A BOND WITH SURETY.  THE TENANTS SHOWED THEY WERE FINANCIALLY
UNABLE TO POST THE BOND AND CLAIMED THAT TO REQUIRE A BOND WITH SURETY
TO OBTAIN AN APPEAL WOULD UNDER THOSE CIRCUMSTANCES BE A DENIAL OF
EQUAL PROTECTION.  THE TRIAL COURT REFUSED TO WAIVE THE REQUIREMENT FOR
A BOND WITH SURETY SAYING THAT "THE APPEAL IS BEING TAKEN FOR THE
PURPOSE OF DELAY." 

THE CIRCUIT COURT AFFIRMED.  THE APPELLATE DIVISION ORDERED THE
TERMINATION OF A STAY OF EXECUTION.  5 CONN.CIR.  282, 250 A.2D 527. 
THE SUPREME COURT DENIED CERTIFICATION. 

I WOULD REVERSE THIS JUDGMENT.  A RICH TENANT, WHATEVER HIS MOTIVES
FOR APPEAL, WOULD OBTAIN APPELLATE REVIEW.  THESE TENANTS, BECAUSE OF
THEIR POVERTY, OBTAIN NONE.  I CAN IMAGINE NO CLEARER VIOLATION OF THE
REQUIREMENT OF EQUAL PROTECTION UNLESS IT BE GRIFFIN V. ILLINOIS, 351
U.S. 12.  WHETHER THE CASE IS CRIMINAL OR CIVIL, WEALTH, LIKE RACE, IS
A SUSPECT CRITERION FOR CLASSIFICATION OF THOSE WHO HAVE RIGHTS AND
THOSE WHO DO NOT.  HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663;
LEE V. HABIB, 137 U.S.APP.D.C. 403, 424 F.2D 891.  /2/ 

WHAT THE MERITS OF THE TENANTS' APPEAL MAY BE IS NOT FOR US TO SAY. 
BUT THE APPEAL RAISED QUESTIONS NOT EASILY ANSWERED.  THE TERMS OF THE
LEASE STATED THAT IT COULD BE TERMINATED BY NOT LESS THAN 30 DAYS'
NOTICE, WHILE APPARENTLY NO MORE THAN FIVE DAYS' NOTICE WAS GIVEN.  A
HOUSING AUTHORITY THAT IS FEDERALLY ASSISTED HAS THE RIGHT BY 42 U.S.C.
1404A (1964 ED., SUPP. V), "TO MAINTAIN AN ACTION OR PROCEEDING TO
RECOVER POSSESSION OF ANY HOUSING ACCOMMODATIONS OPERATED BY IT WHERE
SUCH ACTION IS AUTHORIZED BY THE STATUTE OR REGULATIONS UNDER WHICH
SUCH HOUSING ACCOMMODATIONS ARE ADMINISTERED."  THERE IS NOT A WORD IN
APPELLEE'S ARGUMENT THAT INDICATES THAT THE FEDERAL REGULATIONS PERMIT
EVICTION ON FIVE DAYS' NOTICE WHERE THE LEASE REQUIRES 30 DAYS'
NOTICE. 

THE CASE HAS BEEN ARGUED AS IF APPELLANTS ARE "CHEAP SKATES" SEEKING
TO GET SOMETHING FOR NOTHING.  THAT SIMPLY IS NOT TRUE, FOR THE RECORD
SHOWS: 

     "MRS. FAULKNER:  YOUR HONOR, MAY I URGE UPON YOU THAT IF YOU

  GRANT OUR MOTION TO HAVE THE DEFENDANTS DEPOSIT THE RENT IN COURT

  THE LANDLORD WILL NOT BE HURT ANY FURTHER BY DELAY IN THIS

  PROCEEDINGS.  HE WILL BE PROTECTED BECAUSE THE MONTHLY RENT WILL

  BE DEPOSITED.  IF HE IS SUCCESSFUL ON APPEAL HE WILL BE ABLE TO

  GET THE RENT. 

    "THE COURT:  DO YOU SUGGEST, IF THAT SHOULD BE THE CONCLUSION,

  THAT THE CLERK COULD ISSUE AN EXECUTION UPON FAILURE TO PAY? 

     "MRS. FAULKNER:  YES. 

     "THE COURT:  IN OTHER WORDS, YOU WILL BE WILLING TO STIPULATE

  ON BEHALF OF YOUR CLIENTS THAT IF THE RENT WERE NOT PAID THAT THE

  CLERK WOULD, MAY BE EMPOWERED FORTHWITH TO ISSUE AN EXECUTION? 

     "MRS. FAULKNER:  YES, YOUR HONOR. 

"THE COURT:  THAT APPEAL TO YOU ALL RIGHT? 

     "MR. PHILBIN:  FRANKLY IT DOESN'T.  DURING THIS PERIOD OF
TIME,

IT COULD TAKE A CONSIDERABLE PERIOD OF TIME, EVEN IF THE TENANT

  PAYS THE FUND INTO THE CLERK'S OFFICE, THEY ARE NOT AVAILABLE TO

  THE PLAINTIFF AND WE ARE STILL AS A PRACTICAL MATTER LOSING THE

  RENTS DURING THAT PERIOD OF TIME.  EVENTUALLY IF WE PREVAIL AND

  GET THIS MONEY THIS WOULD BE AN EXTENDED PERIOD OF TIME."  APP.

  19-20. 

THE STATE OF CONNECTICUT REPRESENTS THAT ITS SUMMARY EVICTION
STATUTE IS BASED ON AN ENGLISH ACT OF 1737, 11 GEO. 2, C. 19; AND WITH
ALL RESPECT, THE DECISIONS BELOW REFLECT AN 18TH CENTURY LAWYER'S
APPROACH TO THE TASK OF PROTECTING A LANDED INTEREST.  EVERY APPEAL OF
COURSE ENTAILS DELAY; AND IN A SENSE ALL APPEALS ARE ANTITHETICAL TO
THE SPIRIT OF SUMMARY EVICTION.  BUT WE LIVE TODAY UNDER A DIFFERENT
REGIME.  UNLIKE 1737, APPELLATE COURTS ARE NO LONGER CLOSED TO THE
POOR.  EVICTION LAWS EMPHASIZE SPEED FOR THE BENEFIT OF LANDLORDS. 
EQUAL PROTECTION OFTEN NECESSITATES AN OPPORTUNITY FOR THE POOR AS WELL
AS THE AFFLUENT TO BE HEARD.  I DISAGREE WITH THE COURT THAT THE ISSUE
IS NOT SQUARELY PRESENTED IN THIS CASE.  /3/  I WOULD REVERSE THIS
JUDGMENT. 

/1/  APPELLEE OPERATES A FEDERALLY ASSISTED LOW-RENT HOUSING PROJECT
UNDER THE AUTHORITY OF TITLE V OF THE HOUSING ACT OF 1959, 73 STAT.
679, 42 U.S.C. 1401 ET SEQ. (1964 ED. AND SUPP. V) AND CONN. GEN. STAT.
REV. 8-38 ET SEQ. 

/2/  IN THAT CASE JUDGE J. SKELLY WRIGHT, SPEAKING FOR THE COURT OF
APPEALS SAID: 

"THE LIMITS OF A STATE'S DUTY AFFIRMATIVELY TO EQUALIZE A
DEFENDANT'S ABILITY TO PARTICIPATE MEANINGFULLY IN THE JUDICIAL PROCESS
ARE ONLY NOW BEING SKETCHED OUT IN THE CASES.  THE PICTURE IS FAR FROM
COMPLETE, BUT RECENT CASES DEALING WITH COSTS IN DIVORCE CASES AND
TRANSCRIPTS ON APPEAL FROM PROCEEDINGS INVOLVING DETERMINATION OF
PARENTAL RIGHTS, COUPLED WITH THE EXPANSIVE READINGS BEING GIVEN TO IN
FORMA PAUPERIS STATUTES, ALL SUGGEST THAT THE TREND SEEMS TO BE TOWARD
MORE, NOT LESS, AFFIRMATIVE ACTION.  THUS, WHILE MOST OF THE CASES
EXTENDING EQUAL PROTECTION TO THE JUDICIAL PROCESS HAVE INVOLVED
CRIMINAL PROCEEDINGS, THE CONSTITUTIONAL MANDATE THAT THERE BE NO
INVIDIOUS DISCRIMINATION BETWEEN INDIGENT AND RICH LITIGANTS IS BEING
RECOGNIZED IN CIVIL CASES AS WELL. 

"THE EQUAL PROTECTION CLAUSE APPLIES TO BOTH CIVIL AND CRIMINAL
CASES; THE CONSTITUTION PROTECTS LIFE, LIBERTY AND PROPERTY.  IT IS THE
IMPORTANCE OF THE RIGHT TO THE INDIVIDUAL, NOT THE TECHNICAL
DISTINCTION BETWEEN CIVIL AND CRIMINAL, WHICH SHOULD BE OF IMPORTANCE
TO A COURT IN DECIDING WHAT PROCEDURES ARE CONSTITUTIONALLY REQUIRED IN
EACH CASE.  OFTEN A POOR LITIGANT WILL HAVE MORE AT STAKE IN A CIVIL
CASE THAN IN A CRIMINAL CASE."  137 U.S.APP.D.C.,AT 412-413, 424 F.2D,
AT 900-901. 

/3/  ON REVIEW, THE CONNECTICUT COURT STATED THAT A "SUFFICIENT BOND
WITH SURETY IS ESSENTIAL TO A VALID APPEAL."  BUT IN THE SETTING OF THE
OPINION, AS I READ IT, THAT MEANT NO MORE THAN A DESCRIPTION OF THE
NORMAL MANNER OF EFFECTING AN APPEAL.  AND THE CONNECTICUT COURT'S
INSISTENCE THAT THE TENANTS DID NOT LACK "THE ECONOMIC POWER TO MAKE
THEMSELVES HEARD IN A COURT OF LAW" REFERS TO THE FACT THAT THEY WERE
ABLY REPRESENTED BY ATTORNEYS FOR THE NEW HAVEN LEGAL ASSISTANCE
ASSOCIATION, INC., A FACTOR ONLY EMPHASIZING THEIR INDIGENCY.  NOT A
WORD IN THE OPINIONS OF THE CONNECTICUT COURTS SUGGESTS THAT THE
STATUTORY BOND REQUIREMENT COULD NOT BE WAIVED. 

FRANCIS X. DINEEN ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WAS JOANNE S. FAULKNER. 

F. MICHAEL AHERN, ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE FOR
THE STATE OF CONNECTICUT AS AMICUS CURIAE IN SUPPORT OF APPELLEE.  WITH
HIM ON THE BRIEF WERE ROBERT K. KILLIAN, ATTORNEY GENERAL, AND ROBERT
L. HIRTLE, JR., ASSISTANT ATTORNEY GENERAL, JOINED BY THE ATTORNEYS
GENERAL FOR THEIR RESPECTIVE STATES AS FOLLOWS:  JOE PURCELL OF
ARKANSAS, DUKE W. DUNBAR OF COLORADO, THEODORE L. SENDAK OF INDIANA,
KENT FIRZZEL OF KANSAS, JACK P. F. GREMILLION OF LOUISIANA, JAMES S.
ERWIN OF MAINE, A. F. SUMMER OF MISSISSIPPI, ROBERT MORGAN OF NORTH
CAROLINA, PAUL W. BROWN OF OHIO, GEROGE F. MCCANLESS OF TENNESSEE,
VERNON B. ROMNEY OF UTAH, AND JAMES E. BARRETT OF WYOMING; AND BY PETER
J. O'DEA, ATTORNEY GENERAL OF THE VIRGIN ISLANDS.     BRIEFS OF AMICI
CURIAE URGING REVERSAL WERE FILED BY THE CENTER ON SOCIAL WELFARE
POLICY AND LAW ET AL. AND BY THE NATIONAL LEGAL AID AND DEFENDER
ASSOCIATION. 
..END :










UNITED STATES V. SWEET, 399 U.S. 517 


       UNITED STATES V. SWEET

        CERTIFIED APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

           THE DISTRICT OF COLUMBIA

        NO. 577.  DECIDED JUNE 29, 1970 


TRANSFER OF A CASE FROM THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT TO THIS COURT UNDER THE CERTIFICATION PROVISIONS OF
THE CRIMINAL APPEALS ACT IS IMPROPER WHERE THE APPEAL FROM THE DISTRICT
COURT TO THE COURT OF APPEALS WAS PURSUANT TO D.C. CODE SEC. 23-105,
WHICH DOES NOT PROVIDE FOR TRANSFER TO THIS COURT.  MOREOVER, THE COURT
OF APPEALS HAS NOT DETERMINED THAT IT LACKED JURISDICTION TO HEAR THE
APPEAL UNDER SEC. 23-105, WHICH IS NOT AFFECTED BY THE CRIMINAL APPEALS
ACT. 

CASE RETURNED TO COURT OF APPEALS FOR FURTHER PROCEEDINGS. 

PER CURIAM. 

ON SEPTEMBER 30, 1968, THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA DISMISSED, "WITH PREJUDICE," AN INDICTMENT CHARGING APPELLEE
SWEET WITH VARIOUS CRIMES UNDER THE D.C. CODE, ON A FINDING THAT THE
GOVERNMENT HAD NOT ACTED PROMPTLY ENOUGH TO BRINGING THE CASE TO
TRIAL.  THE UNITED STATES APPEALED THIS DISMISSAL PURSUANT TO D.C. CODE
SEC. 23-105 /1/  TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT.  THAT COURT, WITHOUT MAKING ANY DETERMINATION OF ITS
JURISDICTION UNDER SEC. 23-105, CERTIFIED THE CASE TO THIS COURT
PURSUANT TO 18 U.S.C. 3731, THE FEDERAL CRIMINAL APPEALS ACT. 

WE CONCLUDE THAT CERTIFICATION UNDER SEC. 3731 WAS NOT PROPER IN THE
CIRCUMSTANCES OF THIS CASE.  SECTION 3731 PROVIDES IN TERMS FOR
CERTIFICATION ONLY "(IF AN APPEAL SHALL BE TAKEN PURSUANT TO THIS
SHOULD HAVE BEEN TAKEN DIRECTLY TO THE SUPREME COURT . . . ."  THE
GOVERNMENT'S APPEAL TO THE COURT OF APPEALS IN THIS CASE WAS NOT
PURSUANT TO SEC. 3731 BUT INSTEAD EXPRESSLY PURSUANT TO D.C. CODE SEC.
23-105, WHICH CONTAINS NO PROVISION ALLOWING TRANSFER TO THIS COURT. 
MOREOVER, AS NOTED EARLIER, IT APPEARS THAT THE COURT OF APPEALS HAS
MADE NO DETERMINATION THAT IT LACKED JURISDICTION TO HEAR THE
GOVERNMENT'S APPEAL UNDER THE BROAD TERMS OF SEC. 23-105, A STATUTE
THAT WE PREVIOUSLY HELD WAS UNAFFECTED IN SCOPE BY THE SUBSEQUENT
PASSAGE OF THE CRIMINAL APPEALS ACT, UNITED STATES V. BURROUGHS, 289
U.S. 159 (1933). 

ACCORDINGLY, WE HOLD THAT TRANSFER TO THIS COURT WAS INAPPROPRIATE
AND WE RETURN THE CASE TO THE COURT OF APPEALS FOR FURTHER
PROCEEDINGS. 

              IT IS SO ORDERED. 

/1/  D.C. CODE SEC. 23-105(A) (SUPP. III, 1970) PROVIDES: 

"IN ALL CRIMINAL PROSECTUIONS THE UNITED STATES OR THE DISTRICT OF
COLUMBIA, AS THE CASE MAY BE, SHALL HAVE THE SAME RIGHT OF APPEAL THAT
IS GIVEN TO THE DEFENDANT, INCLUDING THE RIGHT TO A BILL OF EXCEPTIONS:
PROVIDED, THAT IF ON SUCH APPEAL IT SHALL BE FOUND THAT THERE WAS
ERROR IN THE RULINGS OF THE COURT DURING A TRIAL, A VERDICT IN FAVOR OF
THE DEFENDANT SHALL NOT BE SET ASIDE." 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :







RASKIN, EXECUTOR V. P. D. MARCHESSINI, INC., 399 U.S. 519 


       RASKIN, EXECUTOR V. P. D. MARCHESSINI, INC., ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SECOND CIRCUIT

        NO. 241.  DECIDED JUNE 29, 1970 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED, AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR
RECONSIDERATION IN LIGHT OF MORAGNE V. STATES MARINE LINES, INC., 398
U.S. 375. 
..END :











PERINI V. COLOSIMO, 399 U.S. 519 


       PERINI V. COLOSIMO

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SIXTH CIRCUIT

        NO. 801.  DECIDED JUNE 29, 1970 


CERTIORARI GRANTED; 415 F.2D 804, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE PETITION AND THE MOTION OF
THE RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS ARE GRANTED.  THE
PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS VACATED,
AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF CHAMBERS V.
MARONEY, ANTE, P. 42. 

MR. JUSITCE HARLAN IS OF THE OPINION THAT CERTIORARI SHOULD BE
DENIED.  HOWEVER, THE CASE HAVING BEEN TAKEN FOR REVIEW, HE WOULD
AFFIRM THE JUDGMENT BELOW FOR THE REASONS STATED IN HIS SEPARATE
OPINION IN CHAMBERS V. MARONEY, ANTE, P. 55. 
..END :




DUNN V. LOUISIANA, 399 U.S. 520 


       DUNN V. LOUISIANA

        APPEAL FROM THE SUPREME COURT OF LOUISIANA

        NO. 664.  DECIDED JUNE 29, 1970 


254 LA. 223 SO.2D 856, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MRS. JUSTICE MARSHALL WOULD REVERSE THE JUDGMENT BELOW FOR THE
REASONS STATED IN HIS SEPARATE OPINION IN WILLIAMS V. FLORIDA, ANTE, P.
116. 
..END :











CROUSE, WARDEN V. WOOD, 399 U.S. 520 


       CROUSE, WARDEN V. WOOD

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT

        NO. 936.  DECIDED JUNE 29, 1970 


CERTIORARI GRANTED; 417 F.2D 394, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION OF THE RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF CHAMBERS V.
MARONEY, ANTE.  P. 42. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT CERTIORARI SHOULD BE
DENIED.  HOWEVER, THE CASE HAVING BEEN TAKEN FOR REVIEW, HE WOULD
AFFIRM THE JUDGMENT BELOW FOR THE REASONS STATED IN HIS SEPARATE
OPINION IN CHAMBERS V. MARONEY, ANTE, P. 55. 
..END :





DIAL V. FONTAINE, 399 U.S. 521 


       DIAL ET AL. V. FONTAINE

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

DISTRICT OF TEXAS

        NO. 1032.  DECIDED JUNE 29, 1970 


303 F.SUPP.  436, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  GUNN V.
UNIVERSITY COMMITTEE TO END THE WAR IN VIET NAM, ANTE, P. 383. 

MR. JUSTICE DOUGLAS DISSENTS FROM THE DISMISSAL OF THE APPEAL. 
..END :










HOCKER, WARDEN V. HEFFLEY, 399 U.S. 521 


       HOCKER, WARDEN V. HEFFLEY

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT

        NO. 1195.  DECIDED JUNE 29, 1970 


CERTIORARI GRANTED; 420 F.2D 881, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION OF THE RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF CHAMBERS V.
MARONEY, ANTE, P. 42. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT CERTIORARI SHOULD BE
DENIED.  HOWEVER, THE CASE HAVING BEEN TAKEN FOR REVIEW, HE WOULD
AFFIRM THE JUDGMENT BELOW FOR THE REASONS STATED IN HIS SEPARATE
OPINION IN CHAMBERS V. MARONEY, ANTE, P. 55. 
..END :





HUTCHERSON V. LEHTIN, 399 U.S. 522 


       HUTCHERSON ET AL. V. LEHTIN ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

        NO. 1385.  DECIDED JUNE 29, 1970 


313 F.SUPP.  1324, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  GUNN V. UNIVERSITY COMMITTEE TO END OF WAR IN
VIET NAM, ANTE, P. 383, AND MITCHELL V. DONOVAN, 398 U.S. 427. 
..END :












PENNER V. UNITED STATES, 399 U.S. 522 


       PENNER V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT

        NO. 1532.  DENIED JUNE 29, 1970 


CERTIORARI GRANTED; 420 F.2D 344, VACATED AND REMANDED TO DISTRICT
COURT. 

PER CURIAM. 

ON THE BASIS OF A CONFESSION OF ERROR BY THE SOLICITOR GENERAL AND
OF AN INDEPENDENT REVIEW OF THE RECORD, THE PETITION FOR A WRIT OF
CERTIORARI IS GRANTED, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED,
AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA WITH INSTRUCTIONS TO DISMISS THE
INDICTMENT. 
..END :








PEET V. UNITED STATES, 399 U.S. 523 


       PEET V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT

        NO. 1886, MISC.  DECIDED JUNE 29, 1970 


CERTIORARI GRANTED; 420 F.2D 549, VACATED AND REMANDED TO DISTRICT
COURT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA FOR RESENTENCING.  GUTKNECHT V. UNITED STATES,
396 U.S. 295. 
..END :









GUERRIERI V. UNITED STATES, 399 U.S. 523 


       GUERRIERI V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE THIRD CIRCUIT

        NO. 1969, MISC.  DECIDED JUNE 29, 1970 


CERTIORARI GRANTED; VACATED AND REMANDED TO DISTRICT COURT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA FOR FINDINGS AS TO WHETHER OR NOT PETITIONER
IS IN FACT AN INDIGENT AND PROCEEDING IN GOOD FAITH PURSUANT TO 28
U.S.C. 1915. 
..END :









HOYT V. MINNESOTA, 399 U.S. 524 


       HOYT ET AL. V. MINNESOTA

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           MINNESOTA

        NO. 1544.  DECIDED JUNE 29, 1970 


CERTIORARI GRANTED; 286 MINN. 92, 174 N.W.2D 700, REVERSED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED, REDRUP V. NEW YORK, 386 U.S. 767. 

MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

I AM NOT PURSUADED THAT THE FIRST AND FOURTEENTH AMENDMENTS
NECESSARILY PRESCRIBE A NATIONAL AND UNIFORM MEASURE-- RATHER THAN ONE
CAPABLE OF SOME FLEXIBILITY AND RESTING ON CONCEPTS OF REASONABLENESS--
OF WHAT EACH OF OUR SEVERAL STATES CONSTITUTIONALLY MAY DO TO REGULATE
OBSCENE PRODUCTS WITHIN ITS BORDERS. 

HERE A MINNESOTA TRIAL COURT (JUST AS THE OHIO TRIAL COURT DID IN
WALKER V. OHIO, 398 U.S. 434 (1970)), ENDEAVORED TO APPLY STANDARDS
ARTICULATED BY THIS COURT IN PRIOR CASES, AND EMBODIED IN A PRECISELY
WORDED MINNESOTA STATUTE, AND REACHED THE CONCLUSION THAT THE MATERIALS
IN QUESTION WERE OBSCENE WITHIN THE MEANING OF THAT STATUTORY
DEFINITION.  SIX OF THE SEVEN JUSTICES OF THE SUPREME COURT OF THAT
STATE, CITING REDRUP V. NEW YORK, 386 U.S. 767 (1967), AND OTHER
DECISIONS OF THIS COURT, HAVE IDENTIFIED THE OFFENDING MATERIAL "FOR
WHAT IT IS," HAVE DESCRIBED IT AS DEALING "WITH FILTH FOR THE SAKE OF
FILTH," AND HAVE HELD IT OBSCENE AS A MATTER OF LAW.  286 MINN. 92, 95,
174 N.W.2D 700, 702.  I CANNOT AGREE THAT THE MINNESOTA TRIAL COURT AND
THOSE SIX JUSTICES ARE SO OBVIOUSLY MISGUIDED IN THEIR HOLDING THAT
THEY ARE TO BE SUMMARILY REVERSED ON THE AUTHORITY OF REDRUP. 

AT THIS STILL, FOR ME, UNSETTLED STAGE IN THE DEVELOPMENT OF STATE
LAW OF OBSCENITY IN THE FEDERAL CONSTITUTIONAL CONTEXT I FIND MYSELF
GENERALLY IN ACCORD WITH THE VIEWS EXPRESSED BY MR. JUSTICE HARLAN IN
ROTH V. UNITED STATES, 354 U.S. 476, 496, 500-503 (1957); JACOBELLIS V.
OHIO, 378 U.S. 184, 203-204 (1964); AND MEMOIRS V. MASSACHUSETTS, 383
U.S. 413, 455, 458-460 (1966), AND WITH THOSE ENUNCIATED BY THE CHIEF
JUSTICE IN CAIN V. KENTUCKY, 397 U.S. 319 (1970), AND IN WALKER V.
OHIO, SUPRA.
..END :



KELLEY V. ARIZONA, 399 U.S. 525 


       KELLEY V. ARIZONA

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           ARIZONA

        NO. 1232, MISC.  DECIDED JUNE 29, 1970 


CERTIORARI GRANTED; 104 ARIZ. 418, 454 P.2D 563, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF ARIZONA FOR FURTHER
CONSIDERATION IN LIGHT OF CHAMBERS V. MARONEY, ANTE, P. 42. 

MR. JUSTICE HARLAN WOULD VACATE THE JUDGMENT AND REMAND THE CASE TO
THE SUPREME COURT OF ARIZONA FOR THE REASONS STATED IN HIS SEPARATE
OPINION IN CHAMBERS V. MARONEY, ANTE, P. 55. 
..END :






MORICO V. UNITED STATES, 399 U.S. 526 


       MORICO V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SECOND CIRCUIT

        NO. 672.  DECIDED JUNE 29, 1970  /1/ 


CERTIORARI GRANTED; NO. 672, 415 F.2D 138; NO. 35, MISC., 404 F.2D
586; NO. 88, MISC., 408 F.2D 493; AND NO. 738, MISC., 413 F.2D 133,
VACATED AND REMANDED. 

PER CURIAM. 

MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS IN MISC. NOS. 35, 88,
AND 738, GRANTED.  THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED,
THE JUDGMENTS ARE VACATED, AND THE CASES ARE REMANDED FOR FURTHER
CONSIDERATION IN LIGHT OF WELSH V. UNITED STATES, 398 U.S. 333. 

THE CHIEF JUSTICE, MR. JUSTICE STEWART, MR. JUSTICE WHITE, AND MR.
JUSTICE BLACKMUN ARE OF THE OPINION THAT CERTIORARI SHOULD BE DENIED. 

/1/ TOGETHER WITH NO. 35, MISC., VAUGHN V. UNITED STATES, ON
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT; NO. 88, MISC., MCQUEARY V. UNITED STATES, AND
NO. 738, MISC., CALLISON V. UNITED STATES, ON PETITIONS FOR WRITS OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 
..END :





















CALIFORNIA V. GREEN, 399 U.S. 149 


       CALIFORNIA V. GREEN

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

        NO. 387.  ARGUED APRIL 20, 1970-- DECIDED JUNE 23, 1970 


RESPONDENT WAS CONVICTED OF FURNISHING MARIHAUNA TO A MINOR IN
VIOLATION OF CALIFORNIA LAW, CHIEFLY ON THE BASIS OF EVIDENCE
CONSISTING OF PRIOR INCONSISTENT STATEMENTS MADE BY THE MINOR (PORTER):
(1) AT RESPONDENT'S PRELIMINARY HEARING AND (2) TO A POLICE OFFICER. 
THESE STATEMENTS WERE ADMITTED UNDER CALIFORNIA EVIDENCE CODE SEC. 1235
TO PROVE THE TRUTH OF THE MATTERS ASSERTED THEREIN.  THE DISTRICT COURT
OF APPEAL REVERSED.  THE CALIFORNIA SUPREME COURT AFFIRMED, AND HELD
SEC. 1235 UNCONSTITUTIONAL INSOFAR AS IT PERMITTED THE SUBSTANTIVE USE
OF A WITNESS' PRIOR INCONSISTENT STATEMENTS EVEN THOUGH SUCH STATEMENTS
WERE SUBJECT TO CROSS-EXAMINATION AT A PRIOR HEARING.  HELD: 

1.  THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT, AS MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT, IS NOT VIOLATED
BY ADMITTING A DECLARANT'S OUT-OF-COURT STATEMENTS AS LONG AS HE IS
TESTIFYING AS A WITNESS AT TRIAL AND IS SUBJECT TO FULL CROSS
EXAMINATION.  THE PURPOSES OF THE AMENDMENT ARE SATISFIED AT THE TIME
OF TRIAL, EVEN IF NOT BEFORE, SINCE THE WITNESS IS UNDER OATH, IS
SUBJECT TO CROSS-EXAMINATION, AND HIS DEMEANOR CAN BE OBSERVED BY THE
TRIER OF FACT.  PP. 153-164. 

2.  EVEN IN THE ABSENCE OF AN OPPORTUNITY FOR FULL CROSS-EXAMINATION
AT TRIAL, THE ADMISSION INTO EVIDENCE OF THE PRELIMINARY HEARING
TESTIMONY WOULD NOT VIOLATE THE CONSTITUTION.  FOR THE PRELIMINARY
HEARING IN THIS CASE (WHERE PORTER WAS UNDER OATH, AND WHERE RESPONDENT
WAS REPRESENTED BY COUNSEL AND HAD FULL OPPORTUNITY FOR CROSS
EXAMINATION) WAS NOT SIGNIFICANTLY DIFFERENT FROM AN ACTUAL TRIAL AS
FAR AS THE PURPOSES OF THE CONFRONTATION CLAUSE ARE CONCERNED, AND IT
HAS LONG BEEN HELD THAT ADMITTING THE PRIOR TRIAL TESTIMONY OF AN
UNAVAILABLE WITNESS DOES NOT VIOLATE THAT CLAUSE.  A DIFFERENT RESULT
SHOULD NOT FOLLOW WHERE, AS IN THIS CASE, THE WITNESS WAS ACTUALLY
PRODUCED.  PP. 165-168. 

3.  THE QUESTION WHETHER PORTER'S CLAIMED LAPSE OF MEMORY AT THE
TRIAL ABOUT IMPORTANT EVENTS DESCRIBED IN HIS EARLIER STATEMENT TO THE
OFFICER SO AFFECTED RESPONDENT'S RIGHT TO CROSS-EXAMINE AS TO MAKE A
CRITICAL DIFFERENCE IN THE APPLICATION OF THE CONFRONTATION CLAUSE IS
AN ISSUE THAT SHOULD FIRST BE RESOLVED BY THE STATE COURT.  PP. 168
170. 

70 CAL.2D 654, 451 P.2D 422, VACATED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

JANUARY 1, 1967, PROVIDES THAT "(EVIDENCE OF A STATEMENT MADE BY A
WITNESS IS NOT MADE INADMISSIBLE BY THE HEARSAY RULE IF THE STATEMENT
IS INCONSISTENT WITH HIS TESTIMONY AT THE HEARING AND IS OFFERED IN
COMPLIANCE WITH SECTION 770."  /1/  IN PEOPLE V. JOHNSON, 68 CAL.2D
646, 441 P.2D 111 (1968), CERT. DENIED, 393 U.S. 1051 (1969), THE
CALIFORNIA SUPREME COURT HELD THAT PRIOR STATEMENTS OF A WITNESS THAT
WERE NOT SUBJECT TO CROSS-EXAMINATION WHEN ORIGINALLY MADE, COULD NOT
BE INTRODUCED UNDER THIS SECTION TO PROVE THE CHARGES AGAINST A
DEFENDANT WITHOUT VIOLATING THE DEFENDANT'S RIGHT OF CONFRONTATION
GUARANTEED BY THE SIXTH AMENDMENT AND MADE APPLICABLE TO THE STATES BY
THE FOURTEENTH AMENDMENT.  IN THE CASE NOW BEFORE US THE CALIFORNIA
SUPREME COURT APPLIED THE SAME BAN TO A PRIOR STATEMENT OF A WITNESS
MADE AT A PRELIMINARY HEARING, UNDER OATH AND SUBJECT TO FULL CROSS
EXAMINATION BY AN ADEQUATELY COUNSELED DEFENDANT.  WE CANNOT AGREE WITH
THE CALIFORNIA COURT FOR TWO REASONS, ONE OF WHICH INVOLVES REJECTION
OF THE HOLDING IN PEOPLE V. JOHNSON. 

   I 

IN JANUARY 1967, ONE MELVIN PORTER, A 16-YEAR-OLD MINOR, WAS
ARRESTED FOR SELLING MARIHUANA TO AN UNDERCOVER POLICE OFFICER.  FOUR
DAYS AFTER HIS ARREST, WHILE IN THE CUSTODY OF JUVENILE AUTHORITIES,
PORTER NAMED RESPONDENT GREEN AS HIS SUPPLIER.  AS RECOUNTED LATER BY
ONE OFFICER WADE, PORTER CLAIMED THAT GREEN HAD CALLED HIM EARLIER THAT
MONTH, HAD ASKED HIM TO SELL SOME "STUFF" OR "GRASS," AND HAD THAT SAME
AFTERNOON PERSONALLY DELIVERED A SHOPPING BAG CONTAINING 29 "BAGGIES"
OF MARIHUANA.  IT WAS FROM THIS SUPPLY THAT PORTER HAD MADE HIS SALE TO
THE UNDERCOVER OFFICER.  A WEEK LATER, PORTER TESTIFIED AT RESPONDENT'S
PRELIMINARY HEARING.  HE AGAIN NAMED RESPONDENT AS HIS SUPPLIER,
ALTHOUGH HE NOW CLAIMED THAT INSTEAD OF PERSONALLY DELIVERING THE
MARIHUANA, GREEN HAD SHOWED HIM WHERE TO PICK UP THE SHOPPING BAG,
HIDDEN IN THE BUSHES AT GREEN'S PARENTS' HOUSE.  PORTER'S STORY AT THE
PRELIMINARY HEARING WAS SUBJECTED TO EXTENSIVE CROSS-EXAMINATION BY
RESPONDENT'S COUNSEL-- THE SAME COUNSEL WHO REPRESENTED RESPONDENT AT
HIS SUBSEQUENT TRIAL.  AT THE CONCLUSION OF THE HEARING, RESPONDENT WAS
CHARGED WITH FURNISHING MARIHUANA TO A MINOR IN VIOLATION OF CALIFORNIA
LAW. 

RESPONDENT'S TRIAL TOOK PLACE SOME TWO MONTHS LATER BEFORE A COURT
SITTING WITHOUT A JURY.  THE STATE'S CHIEF WITNESS WAS AGAIN YOUNG
PORTER.  BUT THIS TIME PORTER, IN THE WORDS OF THE CALIFORNIA SUPREME
COURT, PROVED TO BE "MARKEDLY EVASIVE AND UNCOOPERATIVE ON THE STAND." 
PEOPLE V. GREEN, 70 CAL.2D 654, 657, 451 P.2D 422, 423 (1969).  HE
TESTIFIED THAT RESPONDENT HAD CALLED HIM IN JANUARY 1967, AND ASKED HIM
TO SELL SOME UNIDENTIFIED "STUFF."  HE ADMITTED OBTAINING SHORTLY
THEREAFTER 29 PLASTIC "BAGGIES" OF MARIHUANA, SOME OF WHICH HE SOLD. 
BUT WHEN PRESSED AS TO WHETHER RESPONDENT HAD BEEN HIS SUPPLIER, PORTER
CLAIMED THAT HE WAS UNCERTAIN HOW HE OBTAINED THE MARIHUANA, PRIMARILY
BECAUSE HE WAS AT THE TIME ON "ACID" (LSD), WHICH HE HAD TAKEN 20
MINUTES BEFORE RESPONDENT PHONED.  PORTER CLAIMED THAT HE WAS UNABLE TO
REMEMBER THE EVENTS THAT FOLLOWED THE PHONE CALL, AND THAT THE DRUGS HE
HAD TAKEN PREVENTED HIS DISTINGUISHING FACT FROM FANTASY.  SEE, E.G.,
APP. 7-11, 24-25. 

AT VARIOUS POINTS DURING PORTER'S DIRECT EXAMINATION, THE PROSECUTOR
READ EXCERPTS FROM PORTER'S PRELIMINARY HEARING TESTIMONY.  THIS
EVIDENCE WAS ADMITTED UNDER SEC. 1235 FOR THE TRUTH OF THE MATTER
CONTAINED THEREIN.  WITH HIS MEMORY "REFRESHED" BY HIS PRELIMINARY
HEARING TESTIMONY, PORTER "GUESSED" THAT HE HAD INDEED OBTAINED THE
MARIHUANA FROM THE BACKYARD OF RESPONDENT'S PARENTS' HOME, AND HAD
GIVEN THE MONEY FROM ITS SALE TO RESPONDENT.  ON CROSS-EXAMINATION,
HOWEVER, PORTER INDICATED THAT IT WAS HIS MEMORY OF THE PRELIMINARY
TESTIMONY WHICH WAS "MOSTLY" REFRESHED, RATHER THAN HIS MEMORY OF THE
EVENTS THEMSELVES, AND HE WAS STILL UNSURE OF THE ACTUAL EPISODE.  SEE
APP. 25.  LATER IN THE TRIAL, OFFICER WADE TESTIFIED, RELATING PORTER'S
EARLIER STATEMENT THAT RESPONDENT HAD PERSONALLY DELIVERED THE
MARIHUANA.  THIS STATEMENT WAS ALSO ADMITTED AS SUBSTANTIVE EVIDENCE. 
PORTER ADMITTED MAKING THE STATEMENT, APP. 59, AND INSISTED THAT HE HAD
BEEN TELLING THE TRUTH AS HE THEN BELIEVED IT BOTH TO OFFICER WADE AND
AT THE PRELIMINARY HEARING; BUT HE INSISTED THAT HE WAS ALSO TELLING
THE TRUTH NOW IN CLAIMING INABILITY TO REMEMBER THE ACTUAL EVENTS. 

RESPONDENT WAS CONVICTED.  THE DISTRICT COURT OF APPEAL REVERSED,
HOLDING THAT THE USE OF PORTER'S PRIOR STATEMENTS FOR THE TRUTH OF THE
MATTER ASSERTED THEREIN, DENIED RESPONDENT HIS RIGHT OF CONFRONTATION
UNDER THE CALIFORNIA SUPREME COURT'S RECENT DECISION IN PEOPLE V.
JOHNSON, SUPRA.  THE CALIFORNIA SUPREME COURT AFFIRMED, FINDING ITSELF
"IMPELLED" BY RECENT DECISIONS OF THIS COURT TO HOLD SEC. 1235
UNCONSTITUTIONAL INSOFAR AS IT PERMITTED THE SUBSTANTIVE USE OF PRIOR
INCONSISTENT STATEMENTS OF A WITNESS, EVEN THOUGH THE STATEMENTS WERE
SUBJECT TO CROSS-EXAMINATION AT A PRIOR HEARING.  WE GRANTED THE
STATE'S PETITION FOR CERTIORARI, 396 U.S. 1001 (1970). 

        II 

THE CALIFORNIA SUPREME COURT CONSTRUED THE CONFRONTATION CLAUSE OF
THE SIXTH AMENDMENT TO REQUIRE THE EXCLUSION OF PORTER'S PRIOR
TESTIMONY OFFERED IN EVIDENCE TO PROVE THE STATE'S CASE AGAINST GREEN
BECAUSE, IN THE COURT'S VIEW, NEITHER THE RIGHT TO CROSS-EXAMINE PORTER
AT THE TRIAL CONCERNING HIS CURRENT AND PRIOR TESTIMONY, NOR THE
OPPORTUNITY TO CROSS-EXAMINE PORTER AT THE PRELIMINARY HEARING
SATISFIED THE COMMANDS OF THE CONFRONTATION CLAUSE.  WE THINK THE
CALIFORNIA COURT WAS WRONG ON BOTH COUNTS. 

POSITING THAT THIS CASE POSED AN INSTANCE OF A WITNESS WHO GAVE
TRIAL TESTIMONY INCONSISTENT WITH HIS PRIOR, OUT-OF-COURT STATEMENTS,
/2/  THE CALIFORNIA COURT, ON THE AUTHORITY OF ITS DECISION IN PEOPLE
V. JOHNSON, SUPRA, HELD THAT BELATED CROSS-EXAMINATION BEFORE THE TRIAL
COURT, "IS NOT AN ADEQUATE SUBSTITUTE FOR THE RIGHT TO CROSS
EXAMINATION CONTEMPORANEOUS WITH THE ORIGINAL TESTIMONY BEFORE A
DIFFERENT TRIBUNAL."  PEOPLE V. GREEN, SUPRA, AT 659, 451 P.2D AT 425. 
WE DISAGREE. 

CHOICE BY THE CALIFORNIA LEGISLATURE /3/  BETWEEN TWO OPPOSING
POSITIONS CONCERNING THE EXTENT TO WHICH A WITNESS' PRIOR STATEMENTS
MAY BE INTRODUCED AT TRIAL WITHOUT VIOLATING HEARSAY RULES OF
EVIDENCE.  THE ORTHODOX VIEW, ADOPTED IN MOST JURISDICTIONS, /4/  HAS
BEEN THAT THE OUT-OF-COURT STATEMENTS ARE INADMISSIBLE FOR THE USUAL
REASONS THAT HAVE LED TO THE EXCLUSION OF HEARSAY STATEMENTS:  THE
STATEMENT MAY NOT HAVE BEEN MADE UNDER OATH; THE DECLARANT MAY NOT HAVE
BEEN SUBJECTED TO CROSS-EXAMINATION WHEN HE MADE THE STATEMENT; AND THE
JURY CANNOT OBSERVE THE DECLARANT'S DEMEANOR AT THE TIME HE MADE THE
STATEMENT.  ACCORDINGLY, UNDER THIS VIEW, THE STATEMENT MAY NOT BE
OFFERED TO SHOW THE TRUTH OF THE MATTERS ASSERTED THEREIN, BUT CAN BE
INTRODUCED UNDER APPROPRIATE LIMITING INSTRUCTIONS TO IMPEACH THE
CREDIBILITY OF THE WITNESS WHO HAS CHANGED HIS STORY AT TRIAL. 

IN CONTRAST, THE MINORITY VIEW ADOPTED IN SOME JURISDICTIONS /5/
AND SUPPORTED BY MOST LEGAL COMMENTATORS AND BY RECENT PROPOSALS TO
CODIFY THE LAW OF EVIDENCE /6/  WOULD PERMIT THE SUBSTANTIVE USE OF
PRIOR INCONSISTENT STATEMENTS ON THE THEORY THAT THE USUAL DANGERS OF
HEARSAY ARE LARGELY NONEXISTENT WHERE THE WITNESS TESTIFIES AT TRIAL. 
"THE WHOLE PURPOSE OF THE HEARSAY RULE HAS BEEN ALREADY SATISFIED
(BECAUSE) THE WITNESS IS PRESENT AND SUBJECT TO CROSS-EXAMINATION (AND)
(THERE IS AMPLE OPPORTUNITY TO TEST HIM AS TO THE BASIS FOR HIS FORMER
STATEMENT."  /7/ 

OUR TASK IN THIS CASE IS NOT TO DECIDE WHICH OF THESE POSITIONS,
PURELY AS A MATTER OF THE LAW OF EVIDENCE, IS THE SOUNDER.  THE ISSUE
BEFORE US IS THE CONSIDERABLY NARROWER ONE OF WHETHER A DEFENDANT'S
CONSTITUTIONAL RIGHT "TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM"
IS NECESSARILY INCONSISTENT WITH A STATE'S DECISION TO CHANGE ITS
HEARSAY RULES TO REFLECT THE MINORITY VIEW DESCRIBED ABOVE.  WHILE IT
MAY READILY BE CONCEDED THAT HEARSAY RULES AND THE CONFRONTATION CLAUSE
ARE GENERALLY DESIGNED TO PROTECT SIMILAR VALUES, IT IS QUITE A
DIFFERENT THING TO SUGGEST THAT THE OVERLAP IS COMPLETE AND THAT THE
CONFRONTATION CLAUSE IS NOTHING MORE OR LESS THAN A CODIFICATION OF THE
RULES OF HEARSAY AND THEIR EXCEPTIONS AS THEY EXISTED HISTORICALLY AT
COMMON LAW.  OUR DECISIONS HAVE NEVER ESTABLISHED SUCH A CONGRUENCE;
INDEED, WE HAVE MORE THAN ONCE FOUND A VIOLATION OF CONFRONTATION
VALUES EVEN THOUGH THE STATEMENTS IN ISSUE WERE ADMITTED UNDER AN
ARGUABLY RECOGNIZED HEARSAY EXCEPTION.  SEE BARBER V. PAGE, 390 U.S.
719 (1968); POINTER V. TEXAS, 380 U.S. 400 (1965).  THE CONVERSE IS
EQUALLY TRUE:  MERELY BECAUSE EVIDENCE IS ADMITTED IN VIOLATION OF A
LONG-ESTABLISHED HEARSAY RULE DOES NOT LEAD TO THE AUTOMATIC CONCLUSION
THAT CONFRONTATION RIGHTS HAVE BEEN DENIED.  /8/ 

GIVEN THE SIMILARITY OF THE VALUES PROTECTED, HOWEVER, THE
MODIFICATION OF A STATE'S HEARSAY RULES TO CREATE NEW EXCEPTIONS FOR
THE ADMISSION OF EVIDENCE AGAINST A DEFENDANT, WILL OFTEN RAISE
QUESTIONS OF COMPATIBILITY WITH THE DEFENDANT'S CONSTITUTIONAL RIGHT TO
CONFRONTATION.  SUCH QUESTIONS REQUIRE ATTENTION TO THE REASONS FOR,
AND THE BASIC SCOPE OF, THE PROTECTIONS OFFERED BY THE CONFRONTATION
CLAUSE. 

THE ORIGIN AND DEVELOPMENT OF THE HEARSAY RULES AND OF THE
CONFRONTATION CLAUSE HAVE BEEN TRACED BY OTHERS AND NEED NOT BE
RECOUNTED IN DETAIL HERE.  /9/  IT IS SUFFICIENT TO NOTE THAT THE
PARTICULAR VICE THAT GAVE IMPETUS TO THE CONFRONTATION CLAIM WAS THE
PRACTICE OF TRYING DEFENDANTS ON "EVIDENCE" WHICH CONSISTED SOLELY OF
EX PARTE AFFIDAVITS OR DEPOSITIONS SECURED BY THE EXAMINING
MAGISTRATES, THUS DENYING THE DEFENDANT THE OPPORTUNITY TO CHALLENGE
HIS ACCUSER IN A FACE-TO-FACE ENCOUNTER IN FRONT OF THE TRIER OF FACT. 
PROSECUTING ATTORNEYS "WOULD FREQUENTLY ALLEGE MATTERS WHICH THE
PRISONER DENIED AND CALLED UPON THEM TO PROVE.  THE PROOF WAS USUALLY
GIVEN BY READING DEPOSITIONS, CONFESSIONS OF ACCOMPLICES, LETTERS, AND
THE LIKE; AND THIS OCCASIONED FREQUENT DEMANDS BY THE PRISONER TO HAVE
HIS 'ACCUSERS,' I.E. THE WITNESSES AGAINST HIM, BROUGHT BEFORE HIM FACE
TO FACE . . . ."  /10/ 

BUT OBJECTIONS OCCASIONED BY THIS PRACTICE APPEAR PRIMARILY TO HAVE
BEEN AIMED AT THE FAILURE TO CALL THE WITNESS TO CONFRONT PERSONALLY
THE DEFENDANT AT HIS TRIAL.  SO FAR AS APPEARS, IN CLAIMING
CONFRONTATION RIGHTS NO OBJECTION WAS MADE AGAINST RECEIVING A WITNESS'
OUT-OF-COURT DEPOSITIONS OR STATEMENTS, SO LONG AS THE WITNESS WAS
PRESENT AT TRIAL TO REPEAT HIS STORY AND TO EXPLAIN OR REPUDIATE ANY
CONFLICTING PRIOR STORIES BEFORE THE TRIER OF FACT. 

OUR OWN DECISIONS SEEM TO HAVE RECOGNIZED AT AN EARLY DATE THAT IT
IS THIS LITERAL RIGHT TO "CONFRONT" THE WITNESS AT THE TIME OF TRIAL
THAT FORMS THE CORE OF THE VALUES FURTHERED BY THE CONFRONTATION
CLAUSE: 

      "THE PRIMARY OBJECT OF THE CONSTITUTIONAL PROVISION IN
QUESTION

  WAS TO PREVENT DEPOSITIONS OR EX PARTE AFFIDAVITS, SUCH AS WERE

  SOMETIMES ADMITTED IN CIVIL CASES, BEING USED AGAINST THE

  PRISONER IN LIEU OF A PERSONAL EXAMINATION AND CROSS-EXAMINATION

  OF THE WITNESS IN WHICH THE ACCUSED HAS AN OPPORTUNITY, NOT ONLY

  OF TESTING THE RECOLLECTION AND SIFTING THE CONSCIENCE OF THE

  WITNESS, BUT OF COMPELLING HIM TO STAND FACE TO FACE WITH THE

  JURY IN ORDER THAT THEY MAY LOOK AT HIM, AND JUDGE BY HIS

  DEMEANOR UPON THE STAND AND THE MANNER IN WHICH HE GIVES HIS

TESTIMONY WHETHER HE IS WORTHY OF BELIEF."  MATTOX V. UNITED

  STATES, 156 U.S. 237, 242-243 (1895). 

VIEWED HISTORICALLY, THEN, THERE IS GOOD REASON TO CONCLUDE THAT THE
CONFRONTATION CLAUSE IS NOT VIOLATED BY ADMITTING A DECLARANT'S OUT-OF
COURT STATEMENTS, AS LONG AS THE DECLARANT IS TESTIFYING AS A WITNESS
AND SUBJECT TO FULL AND EFFECTIVE CROSS-EXAMINATION. 

THIS CONCLUSION IS SUPPORTED BY COMPARING THE PURPOSES OF
CONFRONTATION WITH THE ALLEGED DANGERS IN ADMITTING AN OUT-OF-COURT
STATEMENT.  CONFRONTATION:  (1) INSURES THAT THE WITNESS WILL GIVE HIS
STATEMENTS UNDER OATH-- THUS IMPRESSING HIM WITH THE SERIOUSNESS OF THE
MATTER AND GUARDING AGAINST THE LIE BY THE POSSIBILITY OF A PENALTY FOR
PERJURY; (2) FORCES THE WITNESS TO SUBMIT TO CROSS-EXAMINATION, THE
"GREATEST LEGAL ENGINE EVER INVENTED FOR THE DISCOVERY OF TRUTH"; /11/
(3) PERMITS THE JURY THAT IS TO DECIDE THE DEFENDANT'S FATE TO OBSERVE
THE DEMEANOR OF THE WITNESS IN MAKING HIS STATEMENT, THUS AIDING THE
JURY IN ASSESSING HIS CREDIBILITY. 

IT IS, OF COURSE, TRUE THAT THE OUT-OF-COURT STATEMENT MAY HAVE BEEN
MADE UNDER CIRCUMSTANCES SUBJECT TO NONE OF THESE PROTECTIONS.  BUT IF
THE DECLARANT IS PRESENT AND TESTIFYING AT TRIAL, THE OUT-OF-COURT
STATEMENT FOR ALL PRACTICAL PURPOSES REGAINS MOST OF THE LOST
PROTECTIONS.  IF THE WITNESS ADMITS THE PRIOR STATEMENT IS HIS, OR IF
THERE IS OTHER EVIDENCE TO SHOW THE STATEMENT IS HIS, THE DANGER OF
FAULTY REPRODUCTION IS NEGLIGIBLE AND THE JURY CAN BE CONFIDENT THAT IT
HAS BEFORE IT TWO CONFLICTING STATEMENTS BY THE SAME WITNESS.  THUS, AS
FAR AS THE OATH IS CONCERNED, THE WITNESS MUST NOW AFFIRM, DENY, OR
QUALIFY THE TRUTH OF THE PRIOR STATEMENT UNDER THE PENALTY OF PERJURY;
INDEED, THE VERY FACT THAT THE PRIOR STATEMENT WAS NOT GIVEN UNDER A
SIMILAR CIRCUMSTANCE MAY BECOME THE WITNESS' EXPLANATION FOR ITS
INACCURACY-- AN EXPLANATION A JURY MAY BE EXPECTED TO UNDERSTAND AND
TAKE INTO ACCOUNT IN DECIDING WHICH, IF EITHER, OF THE STATEMENTS
REPRESENTS THE TRUTH. 

SECOND, THE INABILITY TO CROSS-EXAMINE THE WITNESS AT THE TIME HE
MADE HIS PRIOR STATEMENT CANNOT EASILY BE SHOWN TO BE OF CRUCIAL
SIGNIFICANCE AS LONG AS THE DEFENDANT IS ASSURED OF FULL AND EFFECTIVE
CROSS-EXAMINATION AT THE TIME OF TRIAL.  THE MOST SUCCESSFUL CROSS
EXAMINATION AT THE TIME THE PRIOR STATEMENT WAS MADE COULD HARDLY HOPE
TO ACCOMPLISH MORE THAN HAS ALREADY BEEN ACCOMPLISHED BY THE FACT THAT
THE WITNESS IS NOW TELLING A DIFFERENT, INCONSISTENT STORY, AND-- IN
THIS CASE-- ONE THAT IS FAVORABLE TO THE DEFENDANT.  WE CANNOT SHARE
THE CALIFORNIA SUPREME COURT'S VIEW THAT BELATED CROSS-EXAMINATION CAN
NEVER SERVE AS A CONSTITUTIONALLY ADEQUATE SUBSTITUTE FOR CROSS
EXAMINATION CONTEMPORANEOUS WITH THE ORIGINAL STATEMENT.  THE MAIN
DANGER IN SUBSTITUTING SUBSEQUENT FOR TIMELY CROSS-EXAMINATION SEEMS TO
LIE IN THE POSSIBILITY THAT THE WITNESS'  "(FALSE TESTIMONY IS APT TO
HARDEN AND BECOME UNYIELDING TO THE BLOWS OF TRUTH IN PROPORTION AS THE
WITNESS HAS OPPORTUNITY FO RECONSIDERATION AND INFLUENCE BY THE
SUGGESTIONS OF OTHERS, WHOSE INTEREST MAY BE, AND OFTEN IS, TO MAINTAIN
FALSEHOOD RATHER THAN TRUTH."  STATE V. SAPOREN, 205 MINN. 358, 362,
285 N.W. 898, 901 (1939).  THAT DANGER, HOWEVER, DISAPPEARS WHEN THE
WITNESS HAS CHANGED HIS TESTIMONY SO THAT, FAR FROM "HARDENING," HIS
PRIOR STATEMENT HAS SOFTENED TO THE POINT WHERE HE NOW REPUDIATES IT. 
/12/ 

THE DEFENDANT'S TASK IN CROSS-EXAMINATION IS, OF COURSE, NO LONGER
IDENTICAL TO THE TASK THAT HE WOULD HAVE FACED IF THE WITNESS HAD NOT
CHANGED HIS STORY AND HENCE HAD TO BE EXAMINED AS A "HOSTILE" WITNESS
GIVING EVIDENCE FOR THE PROSECUTION.  THIS DIFFERENCE, HOWEVER, FAR
FROM LESSENING, MAY ACTUALLY ENHANCE THE DEFENDANT'S ABILITY TO ATTACK
THE PRIOR STATEMENT.  FOR THE WITNESS, FAVORABLE TO THE DEFENDANT,
SHOULD BE MORE THAN WILLING TO GIVE THE USUAL SUGGESTED EXPLANATIONS
FOR THE INACCURACY OF HIS PRIOR STATEMENT, SUCH AS FAULTY PERCEPTION OR
UNDUE HASTE IN RECOUNTING THE EVENT.  UNDER SUCH CIRCUMSTANCES, THE
DEFENDANT IS NOT LIKELY TO BE HAMPERED IN EFFECTIVELY ATTACKING THE
PRIOR STATEMENT, SOLELY BECAUSE HIS ATTACK COMES LATER IN TIME. 

SIMILAR REASONS LEAD US TO DISCOUNT AS A CONSTITUTIONAL MATTER THE
FACT THAT THE JURY AT TRIAL IS FORECLOSED FROM VIEWING THE DECLARANT'S
DEMEANOR WHEN HE FIRST MADE HIS OUT-OF-COURT STATEMENT.  THE WITNESS
WHO NOW RELATES A DIFFERENT STORY ABOUT THE EVENTS IN QUESTION MUST
NECESSARILY ASSUME A POSITION AS TO THE TRUTH VALUE OF HIS PRIOR
STATEMENT, THUS GIVING THE JURY A CHANCE TO OBSERVE AND EVALUATE HIS
DEMEANOR AS HE EITHER DISAVOWS OR QUALIFIES HIS EARLIER STATEMENT.  THE
JURY IS ALERTED BY THE INCONSISTENCY IN THE STORIES, AND ITS ATTENTION
IS SHARPLY FORCUSED ON DETERMINING EITHER THAT ONE OF THE STORES
REFLECTS THE TRUTH OR THAT THE WITNESS WHO HAS APPARENTLY LIED ONCE, IS
SIMPLY TOO LACKING IN CREDIBILITY TO WARRANT ITS BELIEVING EITHER
STORY.  THE DEFENDANT'S CONFRONTATION RIGHTS ARE NOT VIOLATED, EVEN
THOUGH SOME DEMEANOR EVIDENCE THAT WOULD HAVE BEEN RELEVANT IN
RESOLVING THIS CREDIBILITY ISSUE IS FOREVER LOST. 

IT MAY BE TRUE THAT A JURY WOULD BE IN A BETTER POSITION TO EVALUATE
THE TRUTH OF THE PRIOR STATEMENT IF IT COULD SOMEHOW BE WHISKED
MAGICALLY BACK IN TIME TO WITNESS A GRUELLING CROSS-EXAMINATION OF THE
DECLARANT AS HE FIRST GIVES HIS STATEMENT.  BUT THE QUESTION AS WE SEE
IT MUST BE NOT WHETHER ONE CAN SOMEHOW IMAGINE THE JURY IN "A BETTER
POSITION," BUT WHETHER SUBSEQUENT CROSS-EXAMINATION AT THE DEFENDANT'S
TRIAL WILL STILL AFFORD THE TRIER OF FACT A SATISFACTORY BASIS FOR
EVALUATING THE TRUTH OF THE PRIOR STATEMENT.  ON THAT ISSUE, NEITHER
EVIDENCE /13/  NOR REASON CONVINCES US THAT CONTEMPORANEOUS CROSS
EXAMINATION BEFORE THE ULTIMATE TRIER OF FACT IS SO MUCH MORE EFFECTIVE
THAN SUBSEQUENT EXAMINATION THAT IT MUST BE MADE THE TOUCHSTONE OF THE
CONFRONTATION CLAUSE. 

FINALLY, WE NOTE THAT NONE OF OUR DECISIONS INTERPRETING THE
CONFRONTATION CLAUSE REQUIRES EXCLUDING THE OUT-OF-COURT STATEMENTS OF
A WITNESS WHO IS AVAILABLE AND TESTIFYING AT TRIAL.  THE CONCERN OF
MOST OF OUR CASES HAS BEEN FORCUSED ON PRECISELY THE OPPOSITE SITUATION
- SITUATIONS WHERE STATEMENTS HAVE BEEN ADMITTED IN THE ABSENCE OF THE
DECLARANT AND WITHOUT ANY CHANGE TO CROSS-EXAMINE HIM AT TRIAL.  THESE
SITUATIONS HAVE ARISEN THROUGH APPLICATION OF A NUMBER OF TRADITIONAL
"EXCEPTIONS" TO THE HEARSAY RULE, WHICH PERMIT THE INTRODUCTION OF
EVIDENCE DESPITE THE ABSENCE OF THE DECLARANT USUALLY ON THE THEORY
THAT THE EVIDENCE POSSESSES OTHER INDICIA OF "RELIABILITY" AND IS
INCAPABLE OF BEING ADMITTED, DESPITE GOOD-FAITH EFFORTS OF THE STATE,
IN ANY WAY THAT WILL SECURE CONFRONTATION WITH THE DECLARANT.  /14/
SUCH EXCEPTIONS, DISPENSING ALTOGETHER WITH THE LITERAL RIGHT TO
"CONFRONTATION" AND CROSS-EXAMINATION, HAVE BEEN SUBJECTED ON SEVERAL
OCCASIONS TO CAREFUL SCRUTINY BY THIS COURT.  IN POINTER V. TEXAS, 380
U.S. 400 (1965), FOR EXAMPLE, THE STATE INTRODUCED AT DEFENDANT'S TRIAL
THE TRANSCRIPT OF A CRUCIAL WITNESS' TESTIMONY FROM A PRIOR PRELIMINARY
HEARING.  THE WITNESS HIMSELF, ONE PHILLIPS, HAD LEFT THE JURISDICTION
AND DID NOT APPEAR AT TRIAL.  "BECAUSE THE TRANSCRIPT OF PHILLIPS'
STATEMENT OFFERED AGAINST PETITIONER AT HIS TRIAL HAD NOT BEEN TAKEN AT
A TIME AND UNDER CIRCUMSTANCES AFFORDING PETITIONER THROUGH COUNSEL AN
ADEQUATE OPPORTUNITY TO CROSS-EXAMINE PHILLIPS," 380 U.S.,AT 407, WE
HELD THAT ITS INTRODUCTION VIOLATED THE DEFENDANT'S CONFRONTATION
RIGHTS.  SIMILARLY, IN BARBER V. PAGE, 390 U.S. 719 (1968), THE STATE
INTRODUCED THE PRELIMINARY HEARING TESTIMONY OF AN ABSENT WITNESS,
INCARCERATED IN A FEDERAL PRISON, UNDER AN "UNAVAILABILITY" EXCEPTION
TO ITS HEARSAY RULES.  WE HELD THAT THAT EXCEPTION WOULD NOT JUSTIFY
THE DENIAL OF CONFRONTATION WHERE THE STATE HAD NOT MADE A GOOD-FAITH
EFFORT TO OBTAIN THE PRESENCE OF THE ALLEGEDLY "UNAVAILABLE" WITNESS. 

WE HAVE NO OCCASION IN THE PRESENT CASE TO MAP OUT A THEORY OF THE
CONFRONTATION CLAUSE THAT WOULD DETERMINE THE VALIDITY OF ALL SUCH
HEARSAY "EXCEPTIONS" PERMITTING THE INTRODUCTION OF AN ABSENT
DECLARANT'S STATEMENTS.  FOR WHERE THE DECLARANT IS NOT ABSENT, BUT IS
PRESENT TO TESTIFY AND TO SUBMIT TO CROSS-EXAMINATION, OUR CASES, IF
ANYTHING, SUPPORT THE CONCLUSION THAT THE ADMISSION OF HIS OUT-OF-COURT
STATEMENTS DOES NOT CREATE A CONFRONTATION PROBLEM.  THUS, IN DOUGLAS
V. ALABAMA, 380 U.S. 415 (1965), DECIDED ON THE SAME DAY AS POINTER, WE
REVERSED A CONVICTION IN WHICH THE PROSECUTION READ INTO THE RECORD AN
ALLEGED CONFESSION OF THE DEFENDANT'S SUPPOSED ACCOMPLICE, LOYD, WHO
REFUSED TO TESTIFY ON SELF-INCRIMINATION GROUNDS.  THE CONFRONTATION
PROBLEM AROSE PRECISELY BECAUSE LOYD COULD NOT BE CROSS-EXAMINED AS TO
HIS PRIOR STATEMENT; HAD SUCH CROSS-EXAMINATION TAKEN PLACE, THE
OPINION STRONGLY SUGGESTS THAT THE CONFRONTATION PROBLEM WOULD HAVE
BEEN NONEXISTENT: 

     "IN THE CIRCUMSTANCES OF THIS CASE, PETITIONER'S INABILITY TO

  CROSS-EXAMINE LOYD AS TO THE ALLEGED CONFESSION PLAINLY DENIED

  HIM THE RIGHT OF CROSS-EXAMINATION SECURED BY THE CONFRONTATION

  CLAUSE . . . . LOYD COULD NOT BE CROSS-EXAMINED ON A STATEMENT

  IMPUTED TO BUT NOT ADMITTED BY HIM . . . (SINCE (THE STATE'S)

  EVIDENCE TENDED TO SHOW ONLY THAT LOYD MADE THE CONFESSION,

  CROSS-EXAMINATION . . . AS TO ITS GENUINENESS COULD NOT

  SUBSTITUTE FOR CROSS-EXAMINATION OF LOYD TO TEST THE TRUTH OF THE

  STATEMENT ITSELF . . . . 

      "HENCE, EFFECTIVE CONFRONTATION OF LOYD WAS POSSIBLE ONLY IF

  LOYD AFFIRMED THE STATEMENT AS HIS."  380 U.S.,AT 419-420. 

AGAIN, IN BRUTON V. UNITED STATES, 391 U.S. 123 (1968), THE COURT
FOUND A VIOLATION OF CONFRONTATION RIGHTS IN THE ADMISSION OF A
CODEFENDANT'S CONFESSION, IMPLICATING BRUTON, WHERE THE CO-DEFENDANT
DID NOT TAKE THE STAND.  THE COURT AGAIN EMPHASIZED THAT THE ERROR
AROSE BECAUSE THE DECLARANT "DOES NOT TESTIFY AND CANNOT BE TESTED BY
CROSS-EXAMINATION," 391 U.S.,AT 136, SUGGESTING THAT NO CONFRONTATION
PROBLEM WOULD HAVE EXISTED IF BRUTON HAD BEEN ABLE TO CROSS-EXAMINE HIS
CO-DEFENDANT.  /15/  CF. HARRINGTON V. CALIFORNIA, 395 U.S. 250, 252
253 (1969).  INDEED, BRUTON'S REFUSAL TO REGARD LIMITING INSTRUCTIONS
AS CAPABLE OF CURING THE ERROR, SUGGESTS THAT THERE IS LITTLE
DIFFERENCE AS FAR AS THE CONSTITUTION IS CONCERNED BETWEEN PERMITTING
PRIOR INCONSISTENT STATEMENTS TO BE USED ONLY FOR IMPEACHMENT PURPOSES,
AND PERMITTING THEM TO BE USED FOR SUBSTANTIVE PURPOSES AS WELL. 

WE FIND NOTHING, THEN, IN EITHER THE HISTORY OR THE PURPOSES OF THE
CONFRONTATION CLAUSE, OR IN THE PRIOR DECISIONS OF THIS COURT, THAT
COMPELS THE CONCLUSION REACHED BY THE CALIFORNIA SUPREME COURT
CONCERNING THE VALIDITY OF CALIFORNIA'S SEC. 1235.  CONTRARY TO THE
JUDGMENT OF THAT COURT, THE CONFRONTATION CLAUSE DOES NOT REQUIRE
EXCLUDING FROM EVIDENCE THE PRIOR STATEMENTS OF A WITNESS WHO CONCEDES
MAKING THE STATEMENTS, AND WHO MAY BE ASKED TO DEFEND OR OTHERWISE
EXPLAIN THE INCONSISTENCY BETWEEN HIS PRIOR AND HIS PRESENT VERSION OF
THE EVENTS IN QUESTION, THUS OPENING HIMSELF TO FULL CROSS-EXAMINATION
AT TRIAL AS TO BOTH STORIES. 

        III 

WE ALSO THINK THAT PORTER'S PRELIMINARY HEARING TESTIFMONY WAS
ADMISSIBLE AS FAR AS THE CONSTITUTION IS CONCERNED WHOLLY APART FROM
THE QUESTION OF WHETHER RESPONDENT HAD AN EFFECTIVE OPPORTUNITY FOR
CONFRONTATION AT THE SUBSEQUENT TRIAL.  FOR PORTER'S STATEMENT AT THE
PRELIMINARY HEARING HAD ALREADY BEEN GIVEN UNDER CIRCUMSTANCES CLOSELY
APPROXIMATING THOSE THAT SURROUND THE TYPICAL TRIAL.  PORTER WAS UNDER
OATH; RESPONDENT WAS REPRESENTED BY COUNSEL-- THE SAME COUNSEL IN FACT
WHO LATER REPRESENTED HIM AT THE TRIAL; RESPONDENT HAD EVERY
OPPORTUNITY TO CROSS-EXAMINE PORTER AS TO HIS STATEMENT; AND THE
PROCEEDINGS WERE CONDUCTED BEFORE A JUDICIAL TRIBUNAL, EQUIPPED TO
PROVIDE A JUDICIAL RECORD OF THE HEARINGS.  UNDER THESE CIRCUMSTANCES,
PORTER'S STATEMENT WOULD, WE THINK, HAVE BEEN ADMISSIBLE AT TRIAL EVEN
IN PORTER'S ABSENCE IF PORTER HAD BEEN ACTUALLY UNAVAILABLE, DESPITE
GOOD-FAITH EFFORTS OF THE STATE TO PRODUCE HIM.  THAT BEING THE CASE,
WE DO NOT THINK A DIFFERENT RESULT SHOULD FOLLOW WHERE THE WITNESS IS
ACTUALLY PRODUCED. 

THIS COURT LONG AGO HELD THAT ADMITTING THE PRIOR TESTIMONY OF AN
UNAVAILABLE WITNESS DOES NOT VIOLATE THE CONFRONTATION CLAUSE.  MATTOX
V. UNITED STATES, 156 U.S. 237 (1895).  THAT CASE INVOLVED TESTIMONY
GIVEN AT THE DEFENDANT'S FIRST TRIAL BY A WITNESS WHO HAD DIED BY THE
TIME OF THE SECOND TRIAL, BUT WE DO NOT FIND THE INSTANT PRELIMINARY
HEARING SIGNIFICANTLY DIFFERENT FROM AN ACTUAL TRIAL TO WARRANT
DISTINGUISHING THE TWO CASES FOR PURPOSES OF THE CONFRONTATION CLAUSE. 
INDEED, WE INDICATED AS MUCH IN POINTER V. TEXAS, 380 U.S. 400, 407
(1965), WHERE WE NOTED THAT "(THE CASE BEFORE US WOULD BE QUITE A
DIFFERENT ONE HAD PHILLIPS' STATEMENT BEEN TAKEN AT A FULL-FLEDGED
HEARING AT WHICH PETITIONER HAD BEEN REPRESENTED BY COUNSEL WHO HAD
BEEN GIVEN A COMPLETE AND ADEQUATE OPPORTUNITY TO CROSS-EXAMINE."  AND
IN BARBER V. PAGE, 390 U.S. 719, 725-726 (1968), ALTHOUGH NOTING THAT
THE PRELIMINARY HEARING IS ORDINARILY A LESS SEARCHING EXPLORATION INTO
THE MERITS OF A CASE THAN A TRIAL, WE RECOGNIZED THAT "THERE MAY BE
SOME JUSTIFICATION FOR HOLDING THAT THE OPPORTUNITY FOR CROSS
EXAMINATION OF A WITNESS AT A PRELIMINARY HEARING SATISFIES THE DEMANDS
OF THE CONFRONTATION CLAUSE WHERE THE WITNESS IS SHOWN TO BE ACTUALLY
UNAVAILABLE . . . ."  IN THE PRESENT CASE RESPONDENT'S COUNSEL DOES NOT
APPEAR TO HAVE BEEN SIGNIFICANTLY LIMITED IN ANY WAY IN THE SCOPE OR
NATURE OF HIS CROSS-EXAMINATION OF THE WITNESS PORTER AT THE
PRELIMINARY HEARING.  IF PORTER HAD DIED OR WAS OTHERWISE UNAVAILABLE,
THE CONFRONTATION CLAUSE WOULD NOT HAVE BEEN VIOLATED BY ADMITTING HIS
TESTIMONY GIVEN AT THE PRELIMINARY HEARING-- THE RIGHT OF CROSS
EXAMINATION THEN AFFORDED PROVIDES SUBSTANTIAL COMPLIANCE WITH THE
PURPOSES BEHIND THE CONFRONTATION REQUIREMENT, AS LONG AS THE
DECLARANT'S INABILITY TO GIVE LIVE TESTIMONY IS IN NO WAY THE FAULT OF
THE STATE.  COMPARE BARBER V. PAGE, SUPRA, WITH MOTES V. UNITED STATES,
178 U.S. 458 (1900). 

BUT NOTHING IN BARBER V. PAGE OR IN OTHER CASES IN THIS COURT
INDICATES THAT A DIFFERENT RESULT MUST FOLLOW WHERE THE STATE PRODUCES
THE DECLARANT AND SWEARS HIM AS A WITNESS AT THE TRIAL.  IT MAY BE THAT
THE RULES OF EVIDENCE APPLICABLE IN STATE OR FEDERAL COURTS WOULD
RESTRICT RESORT TO PRIOR SWORN TESTIMONY WHERE THE DECLARANT IS PRESENT
AT THE TRIAL.  BUT AS A CONSTITUTIONAL MATTER, IT IS UNTENABLE TO
CONSTRUE THE CONFRONTATION CLAUSE TO PERMIT THE USE OF PRIOR TESTIMONY
TO PROVE THE STATE'S CASE WHERE THE DECLARANT NEVER APPEARS, BUT TO BAR
THAT TESTIMONY WHERE THE DECLARANT IS PRESENT AT THE TRIAL, EXPOSED TO
THE DEFENDANT AND THE TRIER OF FACT, AND SUBJECT TO CROSS-EXAMINATION. 
/16/  AS IN THE CASE WHERE THE WITNESS IS PHYSICALLY UNPRODUCIBLE, THE
STATE HERE HAS MADE EVERY EFFORT TO INTRODUCE ITS EVIDENCE THROUGH THE
LIVE TESTIMONY OF THE WITNESS; IT PRODUCED PORTER AT TRIAL, SWORE HIM
AS A WITNESS, AND TENDERED HIM FOR CROSS-EXAMINATION.  WHETHER PORTER
THEN TESTIFIED IN A MANNER CONSISTENT OR INCONSISTENT WITH HIS
PRELIMINARY HEARING TESTIMONY, CLAIMED A LOSS OF MEMORY, CLAIMED HIS
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION, OR SIMPLY REFUSED TO
ANSWER, NOTHING IN THE CONFRONTATION CLAUSE PROHIBITED THE STATE FROM
ALSO RELYING ON HIS PRIOR TESTIMONY TO PROVE ITS CASE AGAINST GREEN. 
/17/

        IV 

THERE IS A NARROW QUESTION LURKING IN THIS CASE CONCERNING THE
ADMISSIBILITY OF PORTER'S STATEMENTS TO OFFICER WADE.  IN THE TYPICAL
CASE TO WHICH THE CALIFORNIA COURT ADDRESSED ITSELF, THE WITNESS AT
TRIAL GIVES A VERSION OF THE ULTIMATE EVENTS DIFFERENT FROM THAT GIVEN
ON A PRIOR OCCASION.  IN SUCH A CASE, AS OUR HOLDING IN PART II MAKES
CLEAR, WE FIND LITTLE REASON TO DISTINGUISH AMONG PRIOR INCONSISTENT
STATEMENTS ON THE BASIS OF THE CIRCUMSTANCES UNDER WHICH THE PRIOR
STATEMENTS WERE GIVEN.  THE SUBSEQUENT OPPORTUNITY FOR CROSS
EXAMINATION AT TRIAL WITH RESPECT TO BOTH PRESENT AND PAST VERSIONS OF
THE EVENT, IS ADEQUATE TO MAKE EQUALLY ADMISSIBLE, AS FAR AS THE
CONFRONTATION CLAUSE IS CONCERNED, BOTH THE CASUAL, OFF-HAND REMARK TO
A STRANGER, AND THE CAREFULLY RECORDED TESTIMONY AT PRIOR HEARING. 
HERE, HOWEVER, PORTER CLAIMED AT TRIAL THAT HE COULD NOT REMEMBER THE
EVENTS THAT OCCURRED AFTER RESPONDENT TELEPHONED HIM AND HENCE FAILED
TO GIVE ANY CURRENT VERSION OF THE MORE IMPORTANT EVENTS DESCRIBED IN
HIS EARLIER STATEMENT. 

WHETHER PORTER'S APPARENT LAPSE OF MEMORY SO AFFECTED GREEN'S RIGHT
TO CROSS-EXAMINE AS TO MAKE A CRITICAL DIFFERENCE IN THE APPLICATION OF
THE CONFRONTATION CLAUSE IN THIS CASE /18/  IS AN ISSUE WHICH IS NOT
RIPE FOR DECISION AT THIS JUNCTURE.  THE STATE COURT DID NOT FOCUS ON
THIS PRECISE QUESTION, WHICH WAS IRRELEVANT GIVEN ITS BROADER AND
ERRONEOUS PREMISE THAT AN OUT-OF-COURT STATEMENT OF A WITNESS IS
INADMISSIBLE AS SUBSTANTIVE EVIDENCE, WHATEVER THE NATURE OF THE
OPPORTUNITY TO CROSS-EXAMINE AT THE TRIAL.  NOR HAS EITHER PARTY
ADDRESSED ITSELF TO THE QUESTION.  ITS RESOLUTION DEPENDS MUCH UPON THE
UNIQUE FACTS IN THIS RECORD, AND WE ARE RELUCTANT TO PROCEED WITHOUT
THE STATE COURT'S VIEWS OF WHAT THE RECORD ACTUALLY DISCLOSES RELEVANT
TO THIS PARTICULAR ISSUE.  WHAT IS MORE, SINCE WE HOLD THAT THE
ADMISSION OF PORTER'S PRELIMINARY HEARING TESTIMONY IS NOT BARRED BY
THE SIXTH AMENDMENT DESPITE HIS APPARENT LAPSE OF MEMORY, THE RECEPTION
INTO EVIDENCE OF THE PORTER STATEMENT TO OFFICER WADE MAY POSE A
HARMLESS-ERROR QUESTION WHICH IS MORE APPROPRIATELY RESOLVED BY THE
CALIFORNIA COURTS IN THE FIRST INSTANCE.  SIMILARLY, FACED ON REMAND
WITH OUR DECISION THAT SEC. 1235 IS NOT INVALID ON ITS FACE, THE
CALIFORNIA SUPREME COURT MAY CHOOSE TO DISPOSE OF THE CASE ON OTHER
GROUNDS RAISED BY GREEN BUT NOT PASSED UPON BY THAT COURT; FOR EXAMPLE,
BECAUSE OF ITS RULING ON SEC. 1235, THE CALIFORNIA COURT DELIBERATELY
PUT ASIDE THE ISSUE OF THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN
CONVICTION.  /19/ 

WE THEREFORE VACATE THE JUDGMENT OF THE CALIFORNIA SUPREME COURT AND
REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  CAL. EVID. CODE SEC. 1235 (1966).  SECTION 770 MERELY REQUIRES
THAT THE WITNESS BE GIVEN AN OPPORTUNITY TO EXPLAIN OR DENY THE PRIOR
STATEMENT AT SOME POINT IN THE TRIAL.  SEE CAL. EVID. CODE SEC. 770
(1966); PEOPLE V. JOHNSON, 68 CAL.2D 646, 650 N. 2, 441 P.2D 111, 114
N. 2 (1968), CERT. DENIED, 393 U.S. 1051 (1969). 

/2/  SEE PEOPLE V. GREEN, 70 CAL.2D 654, 657 N. 1, 451 P.2D 422, 424
N. 1 (1969). 

/3/  SEE THE COMMENTS OF THE CALIFORNIA LAW REVISION COMMISSION,
CAL. EVID. CODE SEC. 1235 (1966). 

/4/  E.G., ELLIS V. UNITED STATES, 138 F.2D 612, 616-621 (C.A. 8TH
CIR. 1943); STATE V. SAPOREN, 205 MINN. 358, 361-362, 285 N.W. 898, 900
901 (1939).  THE CASES ARE COLLECTED IN 3 J.WIGMORE, EVIDENCE 1018 (3D
ED. 1940) (HEREINAFTER CITED AS WIGMORE) AND ANNOT., 133 A.L.R. 1454,
1455-1457 (1941). 

/5/  SEE JETT V. COMMONWEALTH, 436 S.W.2D 788 (KY. 1969); GELHAAR V.
STATE, 41 WIS.2D 230, 163 N.W.2D 609 (1969).  SEE ALSO UNITED STATES V.
DE SISTO, 329 F.2D 929 (C.A. 2D CIR.) (FRIENDLY, J.), CERT. DENIED, 377
U.S. 979 (1964); UNITED STATES V. BLOCK, 88 F.2D 618, 620 (C.A. 2D
CIR.) (L. HAND, J.), CERT. DENIED, 301 U.S. 690 (1937); DI CARLO V.
UNITED STATES, 6 F.2D 364, 368 (C.A. 2D CIR.) (L. HAND, J.), CERT.
DENIED, 268 U.S. 706 (1925). 

/6/  DEAN WIGMORE WAS THE FIRST NOTED COMMENTATOR TO ADOPT THIS
POSITION, ABANDONING HIS EARLIER APPROVAL, IN THE FIRST EDITION OF HIS
TREATISE, OF THE ORTHODOX VIEW.  SEE 3 WIGMORE 1018 N. 2.  BOTH THE
MODEL CODE AND THE UNIFORM RULES HAVE SINCE FOLLOWED THE WIGMORE
POSITION, SEE MODEL CODE OF EVIDENCE RULE 503(B) (1942); UNIFORM RULE
OF EVIDENCE 63(1) (1953), AS HAS THE RECENT PRELIMINARY DRAFT OF THE
RULES OF EVIDENCE FOR THE LOWER FEDERAL COURTS, SEE COMMITTEE ON RULES
OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED
STATES, PRELIMINARY DRAFT OF PROPOSED RULES OF EVIDENCE FOR THE UNITED
STATES DISTRICT COURTS AND MAGISTRATES, RULE 8-01(C)(2( (1969).  FOR
COMMENTATORS WHO HAVE URGED VIEWS SIMILAR TO WIGMORE'S SEE C.
MCCORMICK, EVIDENCE SEC. 39 (1954); MAGUIRE, THE HEARSAY SYSTEM:
AROUND AND THROUGH THE THICKET, 14 VAND.L.REV.  741, 747 (1961);
MORGAN, HEARSAY DANGERS AND THE APPLICATION OF THE HEARSAY CONCEPT, 62
HARV.L.REV.  177, 192-196 (1948). 

/7/  3 WIGMORE 1018. 

/8/  SEE THE SUPREME COURT, 1967 TERM, 82 HARV.L.REV.  63, 236
(1968); NOTE, CONFRONTATION AND THE HEARSAY RULE, 75 YALE L.J. 1434,
1436 (1966). 

/9/  SEE, E.G., MCCORMICK, SUPRA, N. 6, AT 455-457; 5 WIGMORE 1364;
MORGAN, SUPRA, N. 6, AT 179-183.  SEE ALSO 9 W.HOLDSWORTH, A HISTORY OF
ENGLISH LAW 177-187, 214-219 (3D ED. 1944); NOTE, PRESERVING THE RIGHT
TO CONFRONTATION-- A NEW APPROACH TO HEARSAY EVIDENCE IN CRIMINAL
TRIALS, 113 U.PA.L.REV.  741, 746-747 (1965). 

/10/  1 J.STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 326
(1883).  SEE ALSO 9 HOLDSWORTH, SUPRA, N. 9, AT 225-228. 

A FAMOUS EXAMPLE IS PROVIDED BY THE TRIAL OF SIR WALTER RALEIGH FOR
TREASON IN 1603.  A CRUCIAL ELEMENT OF THE EVIDENCE AGAINST HIM
CONSISTED OF THE STATEMENTS OF ONE COBHAM, IMPLICATING RALEIGH IN A
PLOT TO SEIZE THE THRONE.  RALEIGH HAD SINCE RECEIVED A WRITTEN
RETRACTION FROM COBHAM, AND BELIEVED THAT COBHAM WOULD NOW TESTIFY IN
HIS FAVOR.  AFTER A LENGTHY DISPUTE OVER RALEIGH'S RIGHT TO HAVE COBHAM
CALLED AS A WITNESS, COBHAM WAS NOT CALLED, AND RALEIGH WAS CONVICTED. 
SEE 1 STEPHEN, SUPRA, AT 333-336; 9 HOLDSWORTH, SUPRA, AT 216-217, 226
228.  AT LEAST ONE AUTHOR TRACES THE CONFRONTATION CLAUSE TO THE COMMON
LAW REACTION AGAINST THESE ABUSES OF THE RALEIGH TRIAL.  SEE F. HELLER,
THE SIXTH AMENDMENT 104 (1951). 

/11/  5 WIGMORE 1367. 

/12/  SEE COMMENT, SUBSTANTIVE USE OF EXTRAJUDICIAL STATEMENTS OF
WITNESSES UNDER THE PROPOSED FEDERAL RULES OF EVIDENCE, 4
U.RICH.L.REV.  110, 117-118 (1969); 82 HARV.L.REV.  475 N. 16 (1968). 

/13/  THE CALIFORNIA SUPREME COURT IN ITS EARLIER DECISION ON THIS
ISSUE STATED THAT "(THIS PRACTICAL TRUTH (THE IMPORTANCE OF IMMEDIATE
CROSS-EXAMINATION) IS DAILY VERIFIED BY TRIAL LAWYERS, NOT ONE OF WHOM
WOULD WILLINGLY POSTPONE TO BOTH A LATER DATE AND A DIFFERENT FORUM HIS
RIGHT TO CROSS-EXAMINE A WITNESS AGAINST HIS CLIENT."  PEOPLE V.
JOHNSON, 68 CAL.2D 646, 655, 441 P.2D 111, 118 (1968), CERT. DENIED,
393 U.S. 1051 (1969).  THE CITATIONS THAT FOLLOW THIS SENTENCE ARE TO
BOOKS ON TRIAL PRACTICE THAT SHED LITTLE EMPIRICAL LIGHT ON THE ACTUAL
COMPARATIVE EFFECTIVENESS OF SUBSEQUENT, AS OPPOSED TO TIMELY, CROSS
EXAMINATION.  AS THE TEST SUGGESTS, WHERE THE WITNESS HAS CHANGED HIS
STORY AT TRIAL TO FAVOR THE DEFENDANT HE SHOULD, IF ANYTHING, BE MORE
RATHER THAN LESS VULNERABLE TO DEFENSE COUNSEL'S EXPLANATIONS FOR THE
INACCURACY OF HIS FORMER STATEMENT.     /14/  SEE GENERALLY, E.G., 5
WIGMORE 1420-1422. 

/15/  WHETHER ADMISSION OF THE STATEMENT WOULD HAVE VIOLATED FEDERAL
EVIDENTIARY RULES AGAINST HEARSAY, SEE 391 U.S.,AT 128 N. 3, IS AS
EMPHASIZED EARLIER IN THIS OPINION, A WHOLLY SEPARATE QUESTION. 
INDEED, FAILURE TO COMPLY WITH FEDERAL EVIDENTIARY STANDARDS APPEARS TO
BE THE REASON FOR THE RESULT IN BRIDGES V. WIXON, 326 U.S. 135 (1945)--
THE ONLY CASE WHICH MIGHT BE THOUGHT TO SUGGEST THE EXISTENCE OF A
POSSIBLE CONSTITUTIONAL PROBLEM IN ADMITTING A WITNESS' PRIOR
INCONSISTENT STATEMENTS AS SUBSTANTIVE EVIDENCE.  THERE THE COURT
REVERSED A DEPORTATION ORDER BASED ON SUCH EVIDENCE, BUT THE HOLDING
WAS AN ALTERNATIVE ONE AND EXPLICITLY RESTED ON THE GROUND THAT THE
RELEVANT AGENCY RULES DID NOT PERMIT THE USE OF SUCH STATEMENTS.  SEE
326 U.S.,AT 151-153.  WHILE THE COURT DID SUGGEST THAT THE USE OF SUCH
STATEMENTS IN A CRIMINAL CASE WOULD RUN "COUNTER TO THE NOTIONS OF
FAIRNESS ON WHICH OUR LEGAL SYSTEM IS FOUNDED," ID., AT 154, THE
DISCUSSION AND CITATIONS APPEAR TO REFER TO THE "ORTHODOX" POSITION
EARLIER ADOPTED BY THE COURT AS A MATTER OF FEDERAL EVIDENTIARY, NOT
CONSTITUTIONAL, LAW.  SEE HICKORY V. UNITED STATES, 151 U.S. 303, 309
(1894).  WHILE WE MAY AGREE THAT CONSIDERATIONS OF DUE PROCESS, WHOLLY
APART FROM THE CONFRONTATION CLAUSE, MIGHT PREVENT CONVICTIONS WHERE A
RELIABLE EVIDENTIARY BASIS IS TOTALLY LACKING, SEE THOMPSON V.
LOUISVILLE, 362 U.S. 199 (1960), WE DO NOT READ BRIDGES AS DECLARING
THAT THE CONSTITUTION IS NECESSARILY VIOLATED BY THE ADMISSION OF A
WITNESS' PRIOR INCONSISTENT STATEMENT FOR THE TRUTH OF THE MATTER
ASSERTED.  THE COURT'S OPINION IN BRIDGES DOES NOT DISCUSS THE
CONFRONTATION CLAUSE. 

/16/  THE EXPLANATION ADVANCED FOR THE CONTRARY CONCLUSION SEEMS TO
BE THAT WHERE THE WITNESS IS DEAD OR OTHERWISE UNAVAILABLE, THE STATE
MAY IN GOOD FAITH ASSUME HE WOULD HAVE GIVEN THE SAME STORY AT TRIAL,
AND MAY INTRODUCE THE FORMER TESTIMONY AS REASONABLY RELIABLE AND AS
PROMPTED BY THE FACTOR OF "NECESSITY."  ON THE CONTRARY, IT IS ARGUED,
WHERE THE WITNESS IS PRESENT TO TESTIFY BUT DOES NOT RELATE THE SAME
STORY, "NECESSITY," "RELIABILITY," AND THE ASSUMPTION THAT THE STORY
WOULD BE THE SAME ARE ALL DESTROYED.  SEE PEOPLE V. GREEN, 70 CAL.2D
654, 664 AND N. 11, 451 P.2D 422, 428-429 AND N. 11 (1969); BRIEF FOR
RESPONDENT 32.  BUT THE ONLY "NECESSITY" THAT EXISTS IN EITHER CASE IS
THE STATE'S "NEED" TO INTRODUCE RELEVANT EVIDENCE THAT THROUGH NO FAULT
OF ITS OWN CANNOT BE INTRODUCED IN ANY OTHER WAY.  AND THE "ASSUMPTION"
THAT THE WITNESS WOULD HAVE GIVEN THE SAME STORY IF HE HAD BEEN
AVAILABLE AT TRIAL, IS LITTLE MORE THAN ANOTHER WAY OF SAYING THAT THE
TESTIMONY WAS GIVEN UNDER CIRCUMSTANCES THAT MAKE IT REASONABLY
RELIABLE-- THERE IS NOTHING IN A WITNESS' DEATH BY ITSELF, FOR EXAMPLE,
WHICH WOULD JUSTIFY ASSUMING HIS STORY WOULD NOT HAVE CHANGED AT
TRIAL.  FINALLY, THE "RELIABILITY" OF THE STATEMENT IS BASED ON THE
CIRCUMSTANCES UNDER WHICH IT WAS GIVEN-- CIRCUMSTANCES THAT REMAIN
UNAFFECTED REGARDLESS OF WHETHER THE WITNESS IS PRESENT OR ABSENT AT
THE LATER TRIAL.  SURELY IN TERMS OF PROTECTING THE DEFENDANT'S
INTERESTS, AND THE JURY'S ABILITY TO ASSESS THE RELIABILITY OF THE
EVIDENCE IT HEARS, IT SEEMS MOST UNLIKELY THAT RESPONDENT IN THIS CASE
WOULD HAVE BEEN BETTER OFF, AS THE DISSENT SEEMS TO SUGGEST, IF PORTER
HAD DIED, AND HIS PRIOR TESTIMONY WERE ADMITTED, THAN HE WAS IN THE
INSTANT CASE WHERE PORTER'S CONDUCT ON THE STAND CAST SUBSTANTIAL DOUBT
ON HIS PRIOR STATEMENT.  AS LONG AS THE STATE HAS MADE A GOOD-FAITH
EFFORT TO PRODUCE THE WITNESS, THE ACTUAL PRESENCE OR ABSENCE OF THE
WITNESS CANNOT BE CONSTITUTIONALLY RELEVANT FOR PURPOSES OF THE
"UNAVAILABILITY" EXCEPTION. 

/17/  THE HEARSAY EXCEPTION ITSELF HAS GENERALLY RECOGNIZED THAT A
WITNESS IS "UNAVAILABLE" FOR PURPOSES OF THE EXCEPTION WHERE THROUGH
LAPSE OF MEMORY OR A PLEA OF THE FIFTH AMENDMENT PRIVILEGE, THE STATE
CANNOT SECURE HIS LIVE TESTIMONY.  SEE 5 WIGMORE 1408, 1409. 

/18/  EVEN AMONG PROPONENTS OF THE VIEW THAT PIROR STATEMENTS SHOULD
BE ADMISSIBLE AS SUBSTANTIVE EVIDENCE, DISAGREEMENT APPEARS TO EXIST AS
TO WHETHER TO APPLY THIS RULE TO THE CASE OF A WITNESS WHO DISCLAIMS
ALL PRESENT KNOWLEDGE OF THE ULTIMATE EVENT.  COMMENTATORS HAVE NOTED
THAT IN SUCH A CASE THE OPPORTUNITIES FOR TESTING THE PRIOR STATEMENT
THROUGH CROSS-EXAMINATION AT TRIAL MAY BE SIGNIFICANTLY DIMINISHED. 
SEE FALKNOR, THE HEARSAY RULE AND ITS EXCEPTIONS, 2 U.C.L.A.L.REV.  43,
53 (1954); 31 N.Y.U.L.REV.  1101, 1105 (1956).  WHILE BOTH THE MODEL
CODE AND THE UNIFORM RULES WOULD APPARENTLY ADMIT PRIOR INCONSISTENT
STATEMENTS EVEN WHERE THE WITNESS CLAIMS TO HAVE NO PRESENT KNOWLEDGE
OR RECOLLECTION OF THE EVENT, SEE MODEL CODE OF EVIDENCE RULE 503(B),
COMMENT B, AT 234 (1942); UNIFORM RULE OF EVIDENCE 63(1), COMMENT
(1953), THE PRELIMINARY DRAFT OF PROPOSED RULES OF EVIDENCE FOR LOWER
FEDERAL COURTS SEEMS TO LIMIT ADMISSIBILITY TO THE CASE WHERE THE
WITNESS ACTUALLY TESTIFIES CONCERNING THE SUBSTANCE OF THE EVENT AT
ISSUE, SEE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL
CONFERENCE OF THE UNITED STATES, PRELIMINARY DRAFT OF PROPOSED RULES OF
EVIDENCE FOR THE UNITED STATES DISTRICT COURTS AND MAGISTRATES, RULE 8
01(C)(2)(I), ADVISORY COMM. NOTES AT 165 (1969).  SEE COMMENT,
SUBSTANTIVE USE OF EXTRAJUDICIAL STATEMENTS OF WITNESSES UNDER THE
PROPOSED FEDERAL RULES OF EVIDENCE, 4 U.RICH.L.REV.  110, 119 AND N. 40
(1969).  THE LATTER POSITION ACCORDS WITH THE COMMON-LAW PRACTICE OF
NOT PERMITTING PRIOR INCONSISTENT STATEMENTS TO BE INTRODUCED EVEN FOR
IMPEACHMENT PURPOSES UNTIL AND UNLESS THE WITNESS HAS ACTUALLY GIVEN
"INCONSISTENT" TESTIMONY CONCERNING THE SUBSTANCE OF THE EVENT
DESCRIBED IN THE PRIOR STATEMENT.  ID., AT 119, 121; SEE E.G.,
WESTINGHOUSE ELECTRIC CORP. V. WRAY EQUIPMENT CORP., 286 F.2D 491, 493
(C.A. 1ST CIR.), CERT. DENIED, 366 U.S. 929 (1961); 3 WIGMORE 1043. 

/19/  THIS ISSUE IS NOT INSUBSTANTIAL.  CONVICTION HERE RESTS ALMOST
ENTIRELY ON THE EVIDENCE IN PORTER'S TWO PRIOR STATEMENTS WHICH WERE
THEMSELVES INCONSISTENT IN SOME RESPECTS.  SEE, E.G., BRIEF FOR
RESPONDENT 3 AND N. 2, 49-50.  THE CALIFORNIA SUPREME COURT ALSO FOUND
IT UNNECESSARY TO REACH RESPONDENT'S ADDITIONAL CONTENTIONS OF
SUPPRESSION OF EVIDENCE AND PREJUDICIAL MISCONDUCT.  SEE PEOPLE V.
GREEN, 70 CAL.2D 654, 666, 451 P.2D 422, 429 (1969).  MOREOVER, AS
NOTED EARLIER IN THIS OPINION, ANTE, AT 153 AND N. 2, THE CALIFORNIA
COURT SUGGESTED THAT PORTER'S PRIOR STATEMENTS MAY NOT EVEN HAVE BEEN
ADMISSIBLE UNDER SEC. 1235 AS "INCONSISTENT" WITH HIS TESTIMONY AT
TRIAL.  COMPARE PEOPLE V. GREEN, SUPRA, AT 657 N. 1, 451 P.2D, AT 424
N. 1, WITH N. 18, SUPRA. 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN FULLY IN MR. JUSTICE WHITE'S OPINION FOR THE COURT.  I ADD
THIS COMMENT ONLY TO EMPHASIZE THE IMPORTANCE OF ALLOWING THE STATES TO
EXPERIMENT AND INNOVATE, ESPECIALLY IN THE AREA OF CRIMINAL JUSTICE. 
IF NEW STANDARDS AND PROCEDURES ARE TRIED IN ONE STATE THEIR SUCCESS OR
FAILURE WILL BE A GUIDE TO OTHERS AND TO THE CONGRESS. 

HERE, CALIFORNIA, BY STATUTE, RECENTLY ADOPTED A RULE OF EVIDENCE
/1/  THAT, AS MR. JUISTCE WHITE OBSERVES, HAS LONG BEEN ADVOCATED BY
LEADING COMMENTATORS.  TWO OTHER STATES, KENTUCKY /2/  AND WISCONSIN,
/3/  HAVE WITHIN THE PAST YEAR EMBRACED SIMILAR DOCTRINES BY JUDICIAL
DECISIONS.  NONE OF THESE STATES HAS YET HAD SUFFICIENT EXPERIENCE WITH
THEIR INNOVATIONS TO DETERMINE WHETHER OR NOT THE MODIFICATION IS
SOUND, WISE, AND WORKABLE.  THE CALIFORNIA SUPREME COURT, IN STRIKING
DOWN THE CALIFORNIA STATUTE, SEEMS TO HAVE DONE SO IN THE MISTAKEN
BELIEF THAT THIS COURT, THROUGH THE CONFRONTATION CLAUSE, HAS IMPOSED
RIGID LIMITS ON THE STATES IN THIS AREA.  AS THE COURT'S OPINION
INDICATES, THAT CONCLUSION IS ERRONEOUS.  THE CALIFORNIA STATUTE MEETS
THE TESTS OF THE SIXTH AND FOURTEENTH AMENDMENTS, AND ACCORDINGLY, THE
WISDOM OF THE STATUTE IS PROPERLY LEFT TO THE STATE OF CALIFORNIA;
OTHER JURISDICTIONS WILL UNDOUBTEDLY WATCH THE EXPERIMENT WITH
INTEREST.  THE CIRCUMSTANCES OF THIS CASE DEMONSTRATE AGAIN THAT
NEITHER THE CONSTITUTION AS ORIGINALLY DRAFTED, NOR ANY AMENDMENT, NOR
INDEED ANY NEED, DICTATES THAT WE MUST HAVE ABSOLUTE UNIFORMITY IN THE
CRIMINAL LAW IN ALL THE STATES.  FEDERAL AUTHORITY WAS NEVER INTENDED
TO BE A "RAMROD" TO COMPEL CONFORMITY TO NONCONSTITUTIONAL STANDARDS. 

/1/  CAL. EVID. CODE SEC. 1235 (1966). 

/2/  JETT V. COMMONWEALTH, 436 S.W.2D 788 (KY. 1969). 

/3/  GELHAAR V. STATE, 41 WIS.2D 230, 163 N.W.2D 609 (1969),
PETITION FOR CERTIORARI PENDING, NO. 389, MISC.,O.T. 1969. 

MR. JUSTICE HARLAN, CONCURRING. 

THE PRECISE HOLDING OF THE COURT TODAY IS THAT THE CONFRONTATION
CLAUSE OF THE SIXTH AMENDMENT DOES NOT PRECLUDE THE INTRODUCTION OF AN
OUT-OF-COURT DECLARATION, TAKEN UNDER OATH AND SUBJECT TO CROSS
EXAMINATION, TO PROVE THE TRUTH OF THE MATTERS ASSERTED THEREIN, WHEN
THE DECLARANT IS AVAILABLE AS A WITNESS AT TRIAL.  WITH THIS I AGREE. 
/1/ 

THE CALIFORNIA DECISION THAT WE TODAY REVERSE DEMONSTRATES, HOWEVER,
THE NEED TO APPROACH THIS CASE MORE BROADLY THAN THE COURT HAS SEEN FIT
TO DO, AND TO CONFRONT SQUARELY THE CONFRONTATION CLAUSE BECAUSE THE
HOLDING OF THE CALIFORNIA SUPREME COURT IS THE RESULT OF AN
UNDERSTANDABLE MISCONCEPTION, AS I SEE THINGS, OF NUMEROUS DECISIONS OF
THIS COURT, OLD AND RECENT, THAT HAVE INDISCRIMINATELY EQUATED
"CONFRONTATION" WITH "CROSS-EXAMINATION."  /2/  SEE BRUTON V. UNITED
STATES, 391 U.S. 123 (1968); ROBERTS V. RUSSELL, 392 U.S. 293 (1968);
POINTER V. TEXAS, 380 U.S. 400 (1965); DOUGLAS V. ALABAMA, 380 U.S. 415
(1965); BROOKHART V. JANIS, 384 U.S. 1 (1966); BARBER V. PAGE, 390 U.S.
719 (1968); SMITH V. ILLINOIS, 390 U.S. 129 (1968); BRIDGES V. WIXON,
326 U.S. 135 (1945); SALINGER V. UNITED STATES, 272 U.S. 542, 548
(1926) (DICTUM); REYNOLDS V. UNITED STATES, 98 U.S. 145 (1879); MATTOX
V. UNITED STATES, 156 U.S. 237 (1895); MOTES V. UNITED STATES, 178 U.S.
458 (1900); KIRBY V. UNITED STATES, 174 U.S. 47 (1899); AND DOWDELL V.
UNITED STATES, 221 U.S. 325, 330 (1911).  /3/ 

THESE DECISIONS HAVE, IN MY VIEW, LEFT AMBIGUOUS WHETHER AND TO WHAT
EXTENT THE SIXTH AMENDMENT "CONSTITUTIONALIZES" THE HEARSAY RULE OF THE
COMMON LAW. 

IF "CONFRONTATION" IS TO BE EQUATED WITH THE RIGHT TO CROSS-EXAMINE,
IT WOULD TRANSPLANT THE GANGLIA OF HEARSAY RULES AND THEIR EXCEPTIONS
INTO THE BODY OF CONSTITUTIONAL PROTECTIONS.  THE STULTIFYING EFFECT OF
SUCH A COURSE UPON THIS ASPECT OF THE LAW OF EVIDENCE IN BOTH STATE AND
FEDERAL SYSTEMS NEED HARDLY BE LABORED, AND IT IS GOOD THAT THE COURT
TODAY, AS I READ ITS OPINION, FIRMLY ESCHEWS THAT COURSE. 

SINCE, IN MY OPINION, THIS STATE DECISION IMPERATIVELY DEMONSTRATES
THE NEED FOR TAKING A FRESH LOOK AT THE CONSTITUTIONAL CONCEPT OF
"CONFRONTATION," I DO NOT THINK THAT STARE DECISIS SHOULD BE ALLOWED TO
STAND IN THE WAY, ALBEIT THE PRESENTLY CONTROLLING CASES ARE OF RECENT
VINTAGE.  /4/  AS THE COURT'S OPINION SUGGESTS, THE CONFRONTATION
CLAUSE COMES TO US ON FADED PARCHMENT.  HISTORY SEEMS TO GIVE US VERY
LITTLE INSIGHT INTO THE INTENDED SCOPE OF THE SIXTH AMENDMENT
CONFRONTATION CLAUSE.  COMMENTATORS HAVE BEEN PRONE TO SLIDE TOO EASILY
FROM CONFRONTATION TO CROSS-EXAMINATION. 

AGAINST THIS AMORPHOUS BACKDROP I REACH TWO CONCLUSIONS.  FIRST, THE
CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT REACHES NO FARTHER THAN TO
REQUIRE THE PROSECUTION TO PRODUCE ANY AVAILABLE WITNESS WHOSE
DECLARATIONS IT SEEKS TO USE IN A CRIMINAL TRIAL.  SECOND, EVEN WERE
THIS CONCLUSION DEEMED UNTENABLE AS A MATTER OF SIXTH AMENDMENT LAW, IT
IS SURELY AGREEABLE TO FOURTEENTH AMENDMENT "DUE PROCESS," WHICH, IN MY
VIEW, IS THE CONSTITUTIONAL FRAMEWORK IN WHICH STATE CASES OF THIS KIND
SHOULD BE JUDGED.  FOR IT COULD SCARCELY BE SUGGESTED THAT THE
FOURTEENTH AMENDMENT TAKES UNDER ITS UMBRELLA ALL COMMON-LAW HEARSAY
RULES AND THEIR EXCEPTIONS. 

I BEGIN WITH THE SIXTH AMENDMENT, AND DEFER UNTIL PARTS III AND IV
THE APPLICATION OF THESE PRINCIPLES TO THE INSTANT CASE. 

        I 

THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT IS NOT ONE THAT WE
MAY ASSUME THE FRAMERS UNDERSTOOD AS THE EMBODIMENT OF SETTLED USAGE AT
COMMON LAW.  CF. MY DISSENTING OPINION IN BLDWIN V. NEW YORK, ANTE, P.
117.  SUCH SCANT EVIDENCE AS CAN BE CULLED FROM THE USUAL SOURCES
SUGGESTS THAT THE FRAMERS UNDERSTOOD "CONFRONTATION" TO BE SOMETHING
LESS THAN A RIGHT TO EXCLUDE HEARSAY, AND THE COMMON-LAW SIGNIFICANCE
OF THE TERM IS SO AMBIGUOUS AS NOT TO WARRANT THE ASSUMPTION THAT THE
FRAMERS WERE ANNOUNCING A PRINCIPLE WHOSE MEANING WAS SO WELL
UNDERSTOOD THAT THIS COURT SHOULD BE CONSTRAINED TO ACCEPT THOSE DICTA
IN THE COMMON LAW THAT EQUATED CONFRONTATION WITH CROSS-EXAMINATION. 

        A 

THE TEXT OF THE SIXTH AMENDMENT READS:  "IN ALL CRIMINAL
PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT . . . TO BE CONFRONTED
WITH THE WITNESSES AGAINST HIM."  SIMPLY AS A MATTER OF ENGLISH THE
CLAUSE MAY BE READ TO CONFER NOTHING MORE THAN A RIGHT TO MEET FACE TO
FACE ALL THOSE WHO APPEAR AND GIVE EVIDENCE AT TRIAL.  /5/  SINCE,
HOWEVER, AN EXTRAJUDICIAL DECLARANT IS NO LESS A "WITNESS," THE CLAUSE
IS EQUALLY SUSCEPTIBLE OF BEING INTERPRETED AS A BLANKET PROHIBITION ON
THE USE OF ANY HEARSAY TESTIMONY.     NEITHER OF THESE POLAR READINGS
IS WHOLLY SATISFACTORY, STILL LESS COMPELLING.  SIMILAR GUARANTEES TO
THOSE OF THE SIXTH AMENDMENT ARE FOUND IN A NUMBER OF THE COLONIAL
CONSTITUTIONS /6/  AND IT APPEARS TO HAVE BEEN ASSUMED THAT A
CONFRONTATION PROVISION WOULD BE INCLUDED IN THE BILL OF RIGHTS THAT
WAS TO BE ADDED TO THE CONSTITUTION AFTER RATIFICATION.  /7/  THE
CONGRESSMEN WHO DRAFTED THE BILL OF RIGHTS AMENDMENTS WERE PRIMARILY
CONCERNED WITH THE POLITICAL CONSEQUENCES OF THE NEW CLAUSES AND PAID
SCANT ATTENTION TO THE DEFINITION AND MEANING OF PARTICULAR
GUARANTEES.  THUS, THE CONFRONTATION CLAUSE WAS APPARENTLY INCLUDED
WITHOUT DEBATE ALONG WITH THE REST OF THE SIXTH AMENDMENT PACKAGE OF
RIGHTS-- TO NOTICE, COUNSEL, AND COMPULSORY PROCESS-- ALL INCIDENTS OF
THE ADVERSARIAL PROCEEDING BEFORE A JURY AS EVOLVED DURING THE 17TH AND
18TH CENTURIES.  /8/  IF ANYTHING, THE CONFRONTATION GUARANTEE MAY BE
THOUGHT, ALONG WITH THE RIGHT TO COMPULSORY PROCESS, MERELY TO
CONSTITUTIONALIZE THE RIGHT TO A DEFENSE AS WE KNOW IT, A RIGHT NOT
ALWAYS ENJOYED BY THE ACCUSED, WHOSE ONLY DEFENSE PRIOR TO THE LATE
17TH CENTURY WAS TO ARGUE THAT THE PROSECUTION HAD NOT COMPLETELY
PROVED ITS CASE.  /9/  SEE H. STEPHEN, "THE TRIAL OF SIR WALTER
RALEIGH," TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY 172, 184 (4TH
SER.  VOL.  2, 1919); F. HELLER, THE SIXTH AMENDMENT 106-107 (1951). 
SUCH GLIMMER OF LIGHT AS HISTORY MAY BE THOUGHT TO SHED COMES FROM THE
BRIEF CONGRESSIONAL COLLOQUY ON THE REACH OF THE COMPANION GUARANTEE OF
COMPULSORY PROCESS.  THE DEBATE SUGGESTS THAT THIS ALSO BROAD AND
SWEEPING RIGHT WAS UNDERSTOOD TO BE QUALIFIED BY AN AVAILABILITY
REQUIREMENT.  AFTER WHAT IS NOW THE SIXTH AMENDMENT WAS PUT ON THE
FLOOR, THE ANNALS REPORT THE FOLLOWING: 

     "MR. BURKE MOVED TO AMEND THIS PROPOSITION IN SUCH A MANNER AS

  TO LEAVE IT IN THE POWER OF THE ACCUSED TO PUT OFF THE TRIAL TO

  THE NEXT SESSION, PROVIDED HE MADE IT APPEAR TO THE COURT THAT

  THE EVIDENCE OF THE WITNESSES, FOR WHOM PROCESS WAS GRANTED BUT

  NOT SERVED, WAS MATERIAL TO HIS DEFENCE. 

     "MR. HARTLEY SAID, THAT IN SECURING HIM THE RIGHT OF
COMPULSORY

  PROCESS, THE GOVERNMENT DID ALL IT COULD; THE REMAINDER MUST LIE

  IN THE DISCRETION OF THE COURT. 

     "MR. SMITH, OF SOUTH CAROLINA, THOUGHT THE REGULATION WOULD

  COME PROPERLY IN, AS PART OF THE JUDICIAL SYSTEM."  1 ANNALS OF

  CONG. 756. 

IN THE FACE OF THIS COLLOQUY I CANNOT ACCEPT PROFESSOR HELLER'S
ASSERTION IN HIS BOOK ON THE SIXTH AMENDMENT ATTRIBUTING TO THE FRAMERS
A SWEEPING INTENT TO PREVENT "INTRODUCTION OF EVIDENCE GIVEN BY
WITNESSES WHOM THE ACCUSED HAS NOT HAD AN OPPORTUNITY TO CROSS
EXAMINE," SUPRA, AT 105.  SO FAR AS I HAVE BEEN ABLE TO ASCERTAIN, THIS
THESIS FINDS SUPPORT ONLY IN THE ASSUMPTION, TRACEABLE TO PROFESSOR
HADLEY, /10/  THAT:  "THE RIGHT OF THE ACCUSED IN A CRIMINAL
PROSECUTION TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM DID NOT
ORIGINATE WITH THE PROVISION OF THE SIXTH AMENDMENT, BUT WAS A COMMON
LAW RIGHT WHICH HAD GAINED RECOGNITION AS A RESULT OF THE ABUSES IN THE
TRIAL OF SIR WALTER RALEIGH."  ID., AT 104.  HELLER'S APPROACH, RESTING
AS IT DOES ESSENTIALLY ON ASSERTION, /11/  IS NEITHER PERSUASIVE AS A
HISTORICAL READING, NOR TENABLE IN VIEW OF DECISIONS BY THIS COURT THAT
HAVE HELD THAT THE CONFRONTATION RIGHT IS NOT ABRIDGED BY THE USE OF
HEARSAY THAT WOULD NOT HAVE SATISFIED THE DYING-DECLARATION EXCEPTION,
WHICH WAS, ACCORDING TO HELLER, THE ONLY APPARENT EXTANT EXCEPTION TO
THE HEARSAY EXCLUSIONARY RULE AT THE TIME THE SIXTH AMENDMENT WAS
RATIFIED.  /12/ 

WIGMORE'S MORE AMBULATORY VIEW-- THAT THE CONFRONTATION CLAUSE WAS
INTENDED TO CONSTITUTIONALIZE THE HEARSAY RULE AND ALL ITS EXCEPTIONS
AS EVOLVED BY THE COURTS-- RESTS ALSO ON ASSERTION WITHOUT CITATION,
AND ATTEMPTS TO SETTLE ON GROUND THAT WOULD APPEAR TO BE EQUALLY INFIRM
AS A MATTER OF LOGIC.  /13/  WIGMORE'S READING WOULD HAVE THE PRACTICAL
CONSEQUENCE OF RENDERING MEANINGLESS WHAT WAS ASSUREDLY IN SOME SENSE
MEANT TO BE AN ENDURING GUARANTEE.  IT IS INCONCEIVABLE THAT IF THE
FRAMERS INTENDED TO CONSTITUTIONALIZE A RULE OF HEARSAY THEY WOULD HAVE
LICENSED THE JUDICIARY TO READ IT OUT OF EXISTENCE BY CREATING NEW AND
UNLIMITED EXCEPTIONS. 

FROM THE SCANT INFORMATION AVAILABLE IT MAY TENTATIVELY BE CONCLUDED
THAT THE CONFRONTATION CLAUSE WAS MEANT TO CONSTITUTIONALIZE A BARRIER
AGAINST FLAGRANT ABUSES, TRIALS BY ANONYMOUS ACCUSERS, AND ABSENTEE
WITNESSES.  THAT THE CLAUSE WAS INTENDED TO ORDAIN COMMON LAW RULES OF
EVIDENCE WITH CONSTITUTIONAL SANCTION IS DOUBTFUL, NOTWITHSTANDING
ENGLISH DECISIONS THAT EQUATE CONFRONTATION AND HEARSAY.  RATHER,
HAVING ESTABLISHED A BROAD PRINCIPLE, IT IS FAR MORE LIKELY THAT THE
FRAMERS ANTICIPATED IT WOULD BE SUPPLEMENTED, AS A MATTER OF JUDGE-MADE
COMMON LAW, BY PREVAILING RULES OF EVIDENCE. 

        B 

JUDICIAL PRECEDENT.-- THE HISTORY TENDING TO SUGGEST THAT AVAILABILITY
UNDERLIES THE CONFRONTATION RIGHT, AS DISCUSSED ABOVE, IS, IN MY VIEW,
CONFIRMED BY A CIRCUMSPECT ANALYSIS OF THE EARLY DECISIONS OF THIS
COURT.  /14/ 

THE EARLY DECISIONS THAT CONSIDER THE CONFRONTATION RIGHT AT ANY
LENGTH ALL INVOLVED EX PARTE TESTIMONY SUBMITTED BY DEPOSITION AND
AFFIDAVIT.  SEE REYNOLDS V. UNITED STATES, 98 U.S. 145 (1879); MATTOX
V. UNITED STATES, 156 U.S. 237 (1895); MOTES V. UNITED STATES, 178 U.S.
458 (1900); KIRBY V. UNITED STATES, 174 U.S. 47 (1899).  /15/  IT WAS
IN THIS CONTEXT THAT MR. JUSTICE BROWN IN AN OFT-QUOTED PASSAGE FROM
MATTOX V. UNITED STATES SET FORTH AS THE PRIMARY OBJECTIVE OF THE
CONSTITUTIONAL GUARANTEE, THE PREVENTION OF "DEPOSITIONS OR EX PARTE
AFFIDAVITS, SUCH AS WERE SOMETIMES ADMITTED IN CIVIL CASES, BEING USED
AGAINST THE PRISONER IN LIEU OF A PERSONAL EXAMINATION AND CROSS
EXAMINATION OF THE WITNESS IN WHICH THE ACCUSED HAS AN OPPORTUNITY, NOT
ONLY OF TESTING THE RECOLLECTION AND SIFTING THE CONSCIENCE OF THE
WITNESS, BUT ALSO OF COMPELLING HIM TO STAND FACE TO FACE WITH THE JURY
IN ORDER THAT THEY MAY LOOK AT HIM, AND JUDGE BY HIS DEMEANOR UPON THE
STAND AND THE MANNER IN WHICH HE GIVES HIS TESTIMONY WHETHER HE IS
WORTHY OF BELIEF."  156 U.S.,AT 242-243.  SEE ALSO DOWDELL V. UNITED
STATES, 221 U.S. 325, 330 (1911); SNYDER V. MASSACHUSETTS, 291 U.S. 97,
107 (1934). 

THIS RESTRICTED READING OF THE CLAUSE CANNOT BE DEFENDED-- TAKING,
AS IT DOES, A METAPHYSICAL APPROACH, ONE THAT ATTEMPTS TO DIFFERENTIATE
BETWEEN AFFIDAVITS, AS A SUBSTITUTE FOR FIRST-HAND TESTIMONY, AND EXTRA
JUDICIAL TESTIMONIAL UTTERANCES.  INDEED, THE PROBLEMS WITH THE LATTER
ARE SOMEWHAT GREATER, AND THE DIFFICULTY INESTABLISHING ACCURATELY WHAT
AN EXTRA-JUDICIAL DECLARANT SAID HAS SOMETIMES BEEN CONSIDERED AN
INFIRMITY OF HEARSAY EVIDENCE.  SEE C. MCCORMICK, EVIDENCE SEC. 224, AT
458 (1954).  CONCEPTUAL DIFFICULTIES ASIDE, IT WOULD SEEM THAT THE
EARLY RECOGNITION OF THE DYING DECLARATION AS AN EXCEPTION TO THE
CONFRONTATION CLAUSE, MATTOX V. UNITED STATES, SUPRA; KIRBY V. UNITED
STATES, SUPRA; ROBERTSON V. BALDWIN, 165 U.S. 275 (1897), PROCEEDED ON
THE ASSUMPTION THAT EXTRAJUDICIAL TESTIMONIAL DECLARATIONS WERE ALSO A
CONCERN OF THE SIXTH AMENDMENT.  /16/ 

NOTWITHSTANDING LANGUAGE THAT APPEARS TO EQUATE THE CONFRONTATION
CLAUSE WITH A RIGHT TO CROSS-EXAMINE, AND, BY IMPLICATION, EXCLUDE
HEARSAY, THE EARLY HOLDINGS AND DICTA CAN, I THINK, ONLY BE HARMONIZED
BY VIEWING THE CONFRONTATION GUARANTEE AS BEING CONFINED TO AN
AVAILABILITY RULE, ONE THAT REQUIRES THE PRODUCTION OF A WITNESS WHEN
HE IS AVAILABLE TO TESTIFY.  THIS VIEW EXPLAINS THE RECOGNITION OF THE
DYING DECLARATION EXCEPTION, WHICH DISPENSES WITH ANY REQUIREMENT OF
CROSS-EXAMINATION, AND THE REFUSAL TO MAKE AN EXCEPTION FOR PRIOR
RECORDED STATEMENTS, TAKEN SUBJECT TO CROSS-EXAMINATION BY THE ACCUSED,
WHEN THE WITNESS IS STILL AVAILABLE TO TESTIFY.  COMPARE MATTOX V.
UNITED STATES, SUPRA, WITH MOTES V. UNITED STATES, SUPRA. 

THIS RATIONALIZATION OF THE EARLY DECISIONS IS NOT ONLY JUSTIFIED BY
LOGIC BUT ALSO ANCHORED IN PRECEDENT.  IN WEST V. LOUISIANA, 194 U.S.
258 (1904), THIS COURT IN REVIEWING ITS EARLY CONFRONTATION DECISIONS
EMPHASIZED AVAILABILITY AS THE THREAD THAT TIED THEM TOGETHER.  WEST
INVOLVED THE ADMISSION INTO EVIDENCE AT TRIAL OF DEPOSITION TESTIMONY,
TAKEN SUBJECT TO CROSS-EXAMINATION AND UNDER OATH, WHERE THE DEPONENT
WAS "PERMANENTLY ABSENT FROM THE STATE AND WAS A NON-RESIDENT THEREOF,
AND . . . HIS ATTENDANCE COULD NOT BE PROCURED."  IBID.  REFERRING,
INTER ALIA, TO MOTES, MATTOX, KIRBY, AND REYNOLDS, THE COURT CONCLUDED
THAT "IN NOT ONE OF THOSE CASES WAS IT HELD THAT, UNDER FACTS SUCH AS
(WERE BEFORE THE COURT), THERE WOULD HAVE BEEN A VIOLATION OF THE
CONSTITUTION IN ADMITTING THE DEPOSITION IN EVIDENCE."  194 U.S.,AT
266.  THAT THE UPPERMOST CONSIDERATION WAS THE AVAILABILITY OF THE
WITNESS IS FURTHER UNDERSCORED BY THE WEST DISCUSSION OF THE COMMON-LAW
RULE THAT ADMITTED DEPOSITION TESTIMONY "UPON PROOF BEING MADE TO THE
SATISFACTION OF THE COURT THAT THE WITNESS WAS AT THE TIME OF THE TRIAL
DEAD, INSANE, TOO ILL EVER TO BE EXPECTED TO ATTEND THE TRIAL, OR KEPT
AWAY BY THE CONNIVANCE OF THE DEFENDANT."  194 U.S.,AT 262.  /17/

        II 

RECENT DECISIONS HAVE, IN MY VIEW, FALLEN INTO ERROR ON TWO SCORES. 
AS A MATTER OF JURISPRUDENCE I THINK IT UNSOUND, FOR REASONS I HAVE
OFTEN ELABORATED, SEE, E.G., MY DISSENTING OPINIONS IN DUNCAN V.
LOUISIANA, 391 U.S. 145, 171 (1968), AND BALDWIN V. NEW YORK, ANTE, P.
117, TO INCORPORATE AS SUCH THE GUARANTEES OF THE BILL OF RIGHTS INTO
THE DUE PROCESS CLAUSE.  WHILE, IN THIS PARTICULAR INSTANCE, THIS WOULD
BE OF LITTLE PRACTICAL CONSEQUENCE IF THE COURT HAD CONFINED THE SIXTH
AMENDMENT GUARANTEE TO AN "AVAILABILITY" REQUIREMENT, SOME DECISIONS
HAVE, UNFORTUNATELY, FAILED TO SEPARATE, EVEN AS A FEDERAL MATTER,
RESTRICTIONS ON THE ABUSE OF HEARSAY TESTIMONY, PART OF THE DUE PROCESS
RIGHT OF A RELIABLE AND TRUSTWORTHY CONVICTION, AND THE RIGHT TO
CONFRONT AN AVAILABLE WITNESS.  SEE N. 20, INFRA. 

BY INCORPORATING INTO THE FOURTEENTH AMENDMENT ITS MISINTERPRETATION
OF THE SIXTH AMENDMENT THESE DECISIONS HAVE IN ONE BLOW CREATED THE
PRESENT DILEMMA, THAT OF BRINGING ABOUT A POTENTIAL FOR A
CONSTITUTIONAL RULE OF HEARSAY FOR BOTH STATE AND FEDERAL COURTS. 
HOWEVER ILL-ADVISED WOULD BE THE CONSTITUTIONALIZATION OF HEARSAY RULES
IN FEDERAL COURTS, THE UNDESIRABILITY OF IMPOSING THOSE BRITTLE RULES
ON THE STATES IN MANIFEST.  GIVEN THE AMBULATORY FORTUNES OF THE
HEARSAY DOCTRINE, EVIDENCED BY THE DISAGREEMENT AMONG SCHOLARS OVER THE
VALUE OF EXCLUDING HEARSAY AND THE TREND TOWARD LIBERALIZATION OF THE
EXCEPTIONS, /18/  IT WOULD BE MOST UNFORTUNATE FOR THIS COURT TO LIMIT
THE FLEXIBILITY OF THE STATES AND CHOKE EXPERIMENTATION IN THIS
EVOLVING AREA OF LAW.  CF. BALDWIN V. NEW YORK, SUPRA.  /19/  I ADHERE
TO WHAT I CONSIDER TO BE THE SOUND VIEW EXPRESSED IN STEIN V. NEW YORK,
346 U.S. 156, 196 (1953):  "THE HEARSAY-EVIDENCE RULE, WITH ALL ITS
SUBTLETIES, ANOMALIES AND RAMIFICATIONS, (SHOULD) NOT BE READ INTO THE
FOURTEENTH AMENDMENT." 

WHAT I WOULD HOLD BINDING ON THE STATES AS A MATTER OF DUE PROCESS
IS WHAT I ALSO DEEM THE CORRECT MEANING OF THE SIXTH AMENDMENT'S
CONFRONTATION CLAUSE-- THAT A STATE MAY NOT IN A CRIMINAL CASE USE
HEARSAY WHEN THE DECLARANT IS AVAILABLE.  SEE WEST V. LOUISIANA, SUPRA.
/20/  THERE IS NO REASON IN FAIRNESS WHY A STATE SHOULD NOT, AS LONG
AS IT RETAINS A TRADITIONAL ADVERSARIAL TRIAL, PRODUCE A WITNESS AND
AFFORD THE ACCUSED AN OPPORTUNITY TO CROSS-EXAMINE HIM WHEN HE CAN BE
MADE AVAILABLE.  THAT THIS PRINCIPLE IS AN ESSENTIAL ELEMENT OF
FAIRNESS IS ATTESTED TO NOT ONLY BY PRECEDENT, MOTES V. UNITED STATES,
SUPRA; BARBER V. PAGE, SUPRA; SMITH V. ILLINOIS, SUPRA, BUT ALSO BY THE
TRADITIONAL AND PRESENT EXCEPTIONS TO THE HEARSAY RULE WHICH RECOGNIZE
GREATER FLEXIBILITY FOR RECEIVING EVIDENCE WHEN THE WITNESS IS NOT
AVAILABLE.  FURTHERMORE IT ACCOMODATES THE INTEREST OF THE STATE IN
MAKING A CASE, YET RECOGNIZES THE OBLIGATION TO ACCORD THE ACCUSED THE
FULLEST OPPORTUNITY TO PRESENT HIS BEST DEFENSE.  /21/  FOR THOSE RARE
CASES WHERE A CONVICTION OCCURS AFTER A TRIAL WHERE NO CREDIBLE
EVIDENCE COULD BE SAID TO JUSTIFY THE RESULT, THERE REMAINS THE BROADER
DUE PROCESS REQUIREMENT THAT A CONVICTION CANNOT BE FOUNDED ON NO
EVIDENCE.  SEE N. 20, SUPRA.

        III 

PUTTING ASIDE FOR THE MOMENT THE "DUE PROCESS" ASPECT OF THIS CASE,
SEE N. 20, SUPRA, IT FOLLOWS, IN MY VIEW, THAT THERE IS NO
"CONFRONTATION" REASON WHY THE PROSECUTION SHOULD NOT USE A WITNESS'
PRIOR INCONSISTENT STATEMENT FOR THE TRUTH OF THE MATTERS THEREIN
ASSERTED.  HERE THE PROSECUTION HAS PRODUCED ITS WITNESS, PORTER, AND
MADE HIM AVAILABLE FOR TRIAL CONFRONTATION.  THAT, IN MY JUDGMENT,
PERFORCE SATISFIES THE SIXTH AMENDMENT.  INDEED, NOTWITHSTANDING THE
CONVENTIONAL CHARACTERIZATION OF AN AVAILABLE WITNESS' PRIOR OUT-OF
COURT STATEMENTS AS HEARSAY WHEN OFFERED AFFIRMATIVELY FOR THE TRUTH OF
THE MATTERS ASSERTED, SEE HICKORY V. UNITED STATES, 151 U.S. 303, 309
(1894); SOUTHERN R. CO. V. GRAY, 241 U.S. 333, 337 (1916); BRIDGES V.
WIXON, 326 U.S. 135 (1945), THIS IS HEARSAY ONLY IN A TECHNICAL SENSE
SINCE THE WITNESS MAY BE EXAMINED AT THE TRIAL AS TO THE CIRCUMSTANCES
OF MEMORY, OPPORTUNITY TO OBSERVE, MEANING, AND VERACITY.  SEE COMMENT,
MODEL CODE OF EVIDENCE, SUPRA, N. 18.  I THINK IT FAIR TO SAY THAT THE
FACT THAT THE JURY HAS NO OPPORTUNITY TO RECONSTRUCT A WITNESS'
DEMEANOR AT THE TIME OF HIS DECLARATION, AND THE ABSENCE OF OATH ARE
MINOR CONSIDERATIONS. 

THE FACT THAT THE WITNESS, THOUGH PHYSICALLY AVAILABLE, CANNOT
RECALL EITHER THE UNDERLYING EVENTS THAT ARE THE SUBJECT OF AN EXTRA
JUDICIAL STATEMENT OR PREVIOUS TESTIMONY OR RECOLLECT THE CIRCUMSTANCES
UNDER WHICH THE STATEMENT WAS GIVEN, DOES NOT HAVE SIXTH AMENDMENT
CONSEQUENCE.  THE PROSECUTION HAS NO LESS FULFILLED ITS OBLIGATION
SIMPLY BECAUSE A WITNESS HAS A LAPSE OF MEMORY.  THE WITNESS IS, IN MY
VIEW, AVAILABLE.  TO THE EXTENT THAT THE WITNESS IS, IN A PRACTICAL
SENSE, UNAVAILABLE FOR CROSS-EXAMINATION ON THE RELEVANT FACTS, FOR
REASONS STATED IN PART II, I THINK CONFRONTATION IS NONETHELESS
SATISFIED.  /22/             IV 

I TURN FINALLY TO THE QUESTION OF WHETHER THIS CONVICTION STANDS ON
SUCH UNRELIABLE EVIDENCE THAT REVERSAL IS REQUIRED.  CF. STOVALL V.
DENNO, 388 U.S. 293 (1967); THOMPSON V. CITY OF LOUISVILLE, 362 U.S.
199 (1960).  I CANNOT CONCLUDE THAT THE PRELIMINARY HEARING TESTIMONY
WAS OBTAINED UNDER CIRCUMSTANCES, AS SUCH, SO UNRELIABLE THAT ITS
ADMISSION REQUIRES REVERSAL AS A MATTER OF DUE PROCESS, EVEN THOUGH IT
WAS CRUCIAL TO THE CENTRAL ISSUE IN THE CASE.  COMPARE STOVALL V.
DENNO, SUPRA; SIMMONS V. UNITED STATES, 390 U.S. 377 (1968).  THE
STATEMENT GIVEN TO OFFICER WADE DOES, HOWEVER, RAISE SUCH A
POSSIBILITY.  I ACCORDINGLY WOULD REMAND THE CASE TO THE CALIFORNIA
SUPREME COURT FOR CONSIDERATION OF THAT QUESTION AND, WHETHER OR NOT IT
DEEMS THE SECOND STATEMENT TOO UNRELIABLE TO HAVE BEEN ADMITTED, TO
DECIDE WHETHER THIS CONVICTION SHOULD BE REVERSED UNDER CALIFORNIA LAW
FOR WANT OF SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION BEYOND A
REASONABLE DOUBT.  SEE IN RE WINSHIP, 397 U.S. 358 (1970). 

/1/  THE COURT DECLINES TO CONSIDER THE ADMISSIBILITY OF PORTER'S
OUT-OF-COURT DECLARATION TO OFFICER WADE AND REMANDS FOR A
DETERMINATION AS TO WHETHER IT WAS PROPERLY ADMISSIBLE UNDER CALIFORNIA
LAW.  I CONSIDER THIS IN PART IV, INFRA. 

/2/  WHILE THIS BROAD PROBLEM THAT LIES BENEATH THE SURFACE OF
TODAY'S CASE WOULD, IN MY VIEW, HAVE BEEN MORE APPROPRIATELY CONSIDERED
IN A MORE CONVENTIONAL HEARSAY SETTING, WHERE THE MAKER OF EXTRA
JUDICIAL STATEMENT IS NOT PRESENT AT TRIAL, IT HAS BEEN BRIEFED AND
ARGUED BY BOTH SIDES, AND I REACH IT NOW, NOTWITHSTANDING THE PENDENCY
OF NO. 21, DUTTON V. EVANS, ON OUR DOCKET.  DUTTON WAS ARGUED BEFORE US
ON OCT. 15, 1969, AND ON APR. 27, 1970, WAS SET FOR REARGUMENT.  397
U.S. 1060.  THE CASE WILL BE HEARD AT THE NEXT TERM. 

/3/  THE EASY ASSUMPTION THAT CONFRONTATION IS THE RIGHT TO EXCLUDE
HEARSAY ALSO APPEARS IN CASES INVOLVING STATE CRIMINAL PROSECUTIONS
WHERE THIS COURT, AS A MATTER OF DUE PROCESS, DECLINED TO HOLD
APPLICABLE TO THE STATES THE SIXTH AMENDMENT'S RIGHT TO CONFRONTATION. 
SEE, E.G., STEIN V. NEW YORK, 346 U.S. 156 (1953); BUT SEE WEST V.
LOUISIANA, 194 U.S. 258 (1904). 

/4/  THIS IS NOT MERELY A CASE OF PRIOR DECISIONS THAT MAY HAVE BEEN
INCORRECTLY DECIDED OR RATIONALIZED.  THE UNWORKABILITY OF
CONSTITUTIONALIZING ANY ASPECT OF THE CONVENTIONAL HEARSAY RULE MEANS
WHAT IS AT STAKE IS THE FUTURE OF SOUND CONSTITUTIONAL DEVELOPMENT IN
THIS AREA.  CF. SWIFT & CO. V. WICKHAM, 382 U.S. 111, 116 (1965), WHERE
WE NOTED THE MISCHIEF OF "PERPETUATION OF AN UNWORKABLE RULE."  MORAGNE
V. STATES MARINE LINE, 398 U.S. 375 (1970); BOYS MARKETS V. RETAIL
CLERKS, 398 U.S. 235 (1970); MY DISSENTING OPINION IN BALDWIN V. NEW
YORK, ANTE, P. 117, AND MY SEPARATE OPINION IN WELSH V. UNITED STATES,
398 U.S. 333, 344 (1970), AND MY DISSENTING OPINION IN DESIST V. UNITED
STATES, 394 U.S. 244, 256 (1969). 

/5/  THE GEORGIA CONSTITUTION OF 1877 LENDS SOME SUPPORT FOR THIS
RESTRICTED READING OF CONFRONTATION.  SEE ART. I, SEC. 1, PARA. 5,
WHICH PROVIDED THAT THE ACCUSED "SHALL BE CONFRONTED WITH THE WITNESSES
TESTIFYING AGAINST HIM . . . ."  THE NATURAL RADING OF THE PROVISION,
PHRASED AS IT IS, WOULD BE TO RESTRICT THE GUARANTEE TO INDIVDUALS WHO
ARE APPEARING IN COURT. 

/6/  MASSACHUSETTS, NEW HAMPSHIRE, NORTH CAROLINA, MARYLAND, AND
VIRGINIA ALL INCLUDED IN THEIR EARLY CONSTITUTIONS A CONFRONTATION
PROVISION.  SEE F. HELLER, THE SIXTH AMENDMENT 22-24 (1951).  THE
DOCUMENTS ARE REPRINTED IN F. THORPE, THE FEDERAL AND STATE
CONSTITUTIONS PASSIM (1909).  WIGMORE HAS COLLECTED THE STATE
PROVISIONS.  5 J.WIGMORE, EVIDENCE 1397, AT 127-130 (3D ED. 1940). 

/7/  SEE 1 J.ELLIOT'S DEBATES 328, 334 (1876). 

/8/  SEE 1 ANNALS OF CONG. (1789-1790).  THUS, MY OWN RESEARCH
SATISFIES ME THAT THE PREVAILING VIEW-- THAT THE USUAL PRIMARY SOURCES
AND DIGESTS OF THE EARLY DEBATES CONTAIN NO INFORMATIVE MATERIAL ON THE
CONFRONTATION RIGHT-- IS CORRECT.  NOTE, CONFRONTATION AND THE HEARSAY
RULE, 75 YALE L.J. 1434, 1436 N. 10 (1966); NOTE, PRESERVING THE RIGHT
TO CONFRONTATION-- A NEW APPROACH TO HEARSAY EVIDENCE IN CRIMINAL
TRIALS, 113 U.PA.L.REV.  741, 742 (1965); NOTE, CONFRONTATION, CROSS
EXAMINATION, AND THE RIGHT TO PREPARE A DEFENSE, 56 GEO.L.J. 939, 953
(1968).  FOR A REVIEW OF THE HISTORY OF CONFRONTATION AT ENGLISH COMMON
LAW SEE POLLITT, THE RIGHT OF CONFRONTATION:  ITS HISTORY AND MODERN
DRESS, 8 J.PUB.L. 381 (1959). 

/9/  SEE H. STEPHEN, "THE TRIAL OF SIR WALTER RALEIGH," TRANSACTIONS
OF THE ROYAL HISTORICAL SOCIETY 172, 184 (4TH SER.  VOL.  2, 1919).  IN
DISCUSSING RALEIGH'S TRIAL STEPHEN NOTES, "THE MODERN READER OF
RALEIGH'S TRIAL IS STRUCK BY THE FACT THAT HE HAD NO ASSISTANCE FROM
COUNSEL.  HE LIKEWISE WOULD NOT HAVE BEEN ALLOWED TO CALL WITNESSES HAD
HE WISHED TO DO SO . . . (THE ACCUSED WAS) DEFENDED BY THE ARGUMENT
THAT THE CASE AGAINST (HIM) HAD TO BE COMPLETELY PROVED.  IF THIS WAS
DONE NO WITNESSES OR COUNSEL ON THE OTHER SIDE NEED BE ATTENDED TO; IF
IT WAS NOT DONE NONE WERE NEEDED."  SEE ALSO HELLER, SUPRA, N. 6, AT
106-107, AND THE REMARKS OF GOVERNOR RANDOLPH AT THE VIRGINIA
RATIFICATION CONVENTION REPORTED AT 3 J.ELLIOT'S DEBATES 468 (1876). 

/10/  HADLEY, THE REFORM OF CRIMINAL PROCEDURE, 10 PROCEEDINGS OF
THE ACADEMY OF POLITICAL SCIENCE 396, 400-401 (1923).  HADLEY'S BRIEF
REMARKS WOULD SEEM TO INDICATE THAT THE ABUSE THAT PROVOKED CONCERN WAS
THE USE OF AFFIDAVIT AND DEPOSITION TESTIMONY. 

/11/  THE ONLY SUPPORT OFFERED FOR THIS READING IS THE ASSERTION
THAT THE FRAMERS WERE CONCERNED TO PREVENT THE ABUSES THAT OCCURRED AT
THE INFAMOUS TREASON TRIAL OF SIR WALTER RALEIGH.  THE ABUSES THERE,
HOWEVER, WENT FAR BEYOND A CONVICTION BASED ON HEARSAY.  AS ONE
COMMENTATOR HAS NOTED, THE REAMS OF DEPOSITION TESTIMONY GIVEN BY
RALEIGH'S ALLEGED ACCOMPLICE, WHO TURNED STATE'S EVIDENCE, CONTAINED
ONLY INNEUNDO AND NO CREDIBLE ASSERTION OF SUBSTANCE SUFFICIENT TO
SUPPORT A VERDICT.  SEE STEPHEN, "THE TRIAL OF SIR WALTER RALEIGH,"
SUPRA, N. 9.  IN THIS LIGHT, THE SIXTH AMENDMENT GUARANTEE MIGHT WELL
BE READ AS ESTABLISHING A BASIC PRESUMPTION OF PRODUCING WITNESSES
WITHOUT DIGNIFYING EVERY HEARSAY RULING WITH CONSTITUTIONAL
SIGNIFICANCE. 

/12/  HELLER, SUPRA, N. 6, AT 105, CITING H. ROTTSCHAEFER, HANDBOOK
OF AMERICAN CONSTITUTIONAL LAW 796 (1939).  THIS VIEW IS OPEN TO
QUESTION.  WIGMORE, FOR ONE, TAKES THE POSITION THAT SEVERAL EXCEPTIONS
TO THE HEARSAY RULE EXISTED AS OF THE TIME THE SIXTH AMENDMENT WAS
ADOPTED.  5 WIGMORE, EVIDENCE 1397, AT 130. 

/13/  THE BASIS OF WIGMORE'S ASSERTION IS THAT THE ONLY RIGHT TO
CONFRONTATION KNOWN AT COMMON LAW WAS THAT ENSHRINED IN THE HEARSAY
RULE.  HE CONCLUDES THAT IN VIEW OF THE SEEMINGLY ABSOLUTE PROHIBITION
ON THE USE OF HEARSAY DECLARATIONS, IT IS IMPOSSIBLE TO APPLY LITERALLY
TO THE CONFRONTATION CLAUSE AND THAT THE FRAMERS INTENDED CONFRONTATION
TO MEAN COMMON-LAW HEARSAY PRINCIPLES.  SEE 5 WIGMORE, EVIDENCE 1397,
AT 130-131. 

/14/  THE EARLY DECISIONS AND RECENT CASES ARE REPLETE WITH DICTA TO
THE EFFECT THAT CONFRONTATION IS EQUIVALENT TO CROSS-EXAMINATION. 
INSTEAD OF TREATING CASES LIKE BROOKHART V. JANIS, SUPRA; POINTER V.
TEXAS, SUPRA; AND DOUGLAS V. ALABAMA, SUPRA; AS DENIALS OF "DUE
PROCESS," SEE INFRA, THE COURT HAS EMPLOYED SWEEPING LANGUAGE, AND
SAID, FOR EXAMPLE, "A MAJOR REASON UNDERLYING THE CONSTITUTIONAL
CONFRONTATION RULE IS TO GIVE A DEFENDANT CHARGED WITH CRIME AN
OPPORTUNITY TO CROSS-EXAMINE THE WITNESSES AGAINST HIM."  POINTER V.
TEXAS, 380 U.S.,AT 406-407.  THIS KIND OF BROAD LANGUAGE, TENDING TO
EQUATE CONFRONTATION AND CROSS-EXAMINATION, AND THE HOLDING IN BRUTON
HAVE CONJURED THE SPECTRE OF THE CONSTITUTIONALIZATION OF THE HEARSAY
RULE THAT THE DISSENT IS APPARENTLY WILLING TO TREAT WITH. 

IT IS NOT SURPRISING THAT CONFRONTATION AND HEARSAY HAVE BEEN
CONSIDERED FUNGIBLE.  THE LABELS WERE NOT UNTIL RECENTLY LIKELY TO
AFFECT THE RESULT IN A FEDERAL TRIAL.  SEE COMMENT IN THE PRELIMINARY
DRAFT OF PROPOSED RULES OF EVIDENCE FOR THE UNITED STATES DISTRICT
COURTS AND MAGISTRATES 156 (1969).  CF. ALFORD V. UNITED STATES, 282
U.S. 687 (1931) (RIGHT TO CROSS-EXAMINE NOT TREATED AS A DENIAL OF
CONFRONTATION). 

THE PORTENT OF THE LABEL NOW EMERGES TO THE FORE IN FEDERAL CASES,
HOWEVER, AGAINST THE BACKDROP OF RECENT DEVELOPMENTS THAT ACCORD
SPECIAL TREATMENT TO CONSTITUTIONAL ERRORS, SEE HARRINGTON V.
CALIFORNIA, 395 U.S. 250 (1969) (HARMLESS ERROR); CHAPMAN V.
CALIFORNIA, 386 U.S. 18 (1967); KAUFMAN V. UNITED STATES, 394 U.S. 217,
226 (1969) (COLLATERAL RELIEF), AND, FOR THE STATES, IN THE CONTEXT OF
INCORPORATION, WHICH MAKES EVERY HEARSAY RULING A POTENTIAL 28 U.S.C.
2254 ISSUE.  AN ADDITIONAL CONSEQUENCE OF CONSTITUTIONALIZING THE
HEARSAY RULES WOULD BE TO PUT THEM BEYOND THE REACH OF CONGRESS.  BUT
SEE KATZENBACH V. MORGAN, 384 U.S. 641 (1966). 

/15/  ONLY KIRBY DID NOT, STRICTLY SPEAKING, INVOLVE THE USE OF
DEPOSITION TESTIMONY.  IN KIRBY'S CASE THE GOVERNMENT SOUGHT TO
INTRODUCE A JUDGMENT OF CONVICTION OBTAINED AGAINST THREE PERPETRATORS
OF A THEFT IN ORDER TO PROVE THAT PROPERTY FOUND IN KIRBY'S POSSESSION
WAS, IN FACT, STOLEN.  IN REYNOLDS THE COURT HELD THAT AN ACCUSED
CANNOT COMPLAIN ABOUT THE INTRODUCTION OF PRIOR RECORDED TESTIMONY WHEN
THE WITNESS' ABSENCE IS PROCURED BY THE DEFENSE.  IN MATTOX THE COURT,
ANALOGIZING TO THE EXCEPTION TO THE HEARSAY RULE FOR DYING
DECLARATIONS, HELD ADMISSIBLE PRIOR RECORDED TESTIMONY TAKEN UNDER OATH
AND SUBJECTED TO CROSS-EXAMINATION WHERE THE WITNESS HAD DIED SINCE THE
FIRST TRIAL.  IN MOTES THE COURT DECLINED TO COUNTENANCE TESTIMONY
TAKEN SUBJECT TO CROSS-EXAMINATION WHERE IT APPEARED THE GOVERNMENT
MIGHT HAVE PRODUCED THE WITNESS. 

MOST LATER CASES HAVE ALSO INVOLVED WRITTEN TESTIMONY.  SEE, E.G.,
BARBER V. PAGE, SUPRA; POINTER V. TEXAS, SUPRA; DOUGLAS V. ALABAMA,
SUPRA (CONFESSION); STEIN V. NEW YORK, 346 U.S. 156, 194 (1953)
(CONFESSION); WEST V. LOUISIANA, 194 U.S. 258 (1904); CF. GREENE V.
MCELROY, 360 U.S. 474 (1959).  OTHER PROBLEMS TREATED UNDER THE RUBRIC
OF CONFRONTATION HAVE INCLUDED, INTER ALIA, THE EXCLUSION OF THE
ACCUSED FROM HIS TRIAL, IN RE OLIVER, 333 U.S. 257 (1948); BROOKHART V.
JANIS, SUPRA; CF. SNYDER V. MASSACHUSETTS, 291 U.S. 97 (1934) (A
VIEWING); PARKER V. GLADDEN, 385 U.S. 363 (1966) (IMPROPER REMARKS BY
BAILIFF); TURNER V. LOUISIANA, 379 U.S. 466 (1965). 

THAT HISTORICALLY, THE PRIMARY CONCERN WAS THE POSSIBILITY OF TRIAL
BY AFFIDAVIT MAY BE EVIDENCED BY SEVERAL EARLY STATE CONSTITUTIONAL
PROVISIONS THAT SPECIFICALLY MADE EXCEPTIONS TO CONFRONTATION BY
PROVIDING FOR USE OF DEPOSITIONS WHEN THE WITNESS IS UNAVAILABLE.  SEE,
E.G., CALIFORNIA CONST., 1879, ART. I, SEC. 13 ("THE LEGISLATURE SHALL
HAVE POWER TO PROVIDE FOR THE TAKING, IN THE PRESENCE OF THE PARTY
ACCUSED AND HIS COUNSEL, OF DEPOSITIONS OF WITNESSES IN CRIMINAL CASES,
OTHER THAN CASES OF HOMICIDE WHEN THERE IS REASON TO BELIEVE THAT THE
WITNESS, FROM INABILITY OR OTHER CAUSE, WILL NOT ATTEND AT THE
TRIAL."); COLORADO CONST., 1876, ART. II, SEC. 16; MONTANA CONST.,
1889, ART. III, SECS. 16, 17; OHIO CONST., 1851, ART. I, SEC. 10; TEXAS
CONST., 1876, ART. I, SEC. 10, AS AMENDED 1918. 

/16/  INTERESTINGLY IN HOPT V. UTAH, 110 U.S. 574 (1884), THE COURT,
SPEAKING THROUGH THE SAME JUSTICE WHO WROTE KIRBY, IN HOLDING THAT IT
WAS ERROR TO PERMIT A SURGEON TO TESTIFY THAT HE HAD EXAMINED THE BODY
OF THE ALLEGED VICTIM OF THE CHARGED HOMICIDE WHEN THE SURGEON'S
KNOWLEDGE AS TO THE IDENTITY OF THE DECEASED CAME FROM A THIRD PARTY,
RELIED ONLY ON HEARSAY PRINCIPLES AND MADE NO ALLUSION TO THE
CONFRONTATION CLAUSE. 

/17/  THAT THE CRITICAL ELEMENT IS AVAILABILITY CANNOT BE DOUBTED. 
THE WEST OPINION DOES NOT EMPHASIZE THE OPPORTUNITY TO CROSS-EXAMINE AT
THE TIME OF TAKING THE DEPOSITIONS, AND, AS ALREADY REMARKED, THAT
WOULD APPEAR TO BE OF SECONDARY CONCERN GIVEN THE RECOGNITION IN MATTOX
OF THE DYING DECLARATION EXCEPTION.  WEST, MOREOVER, PERFORCE STANDS
FOR THE PROPOSITION THAT CONFRONTATION IS INDIFFERENT TO ANY
LIMITATIONS ON THE NATURE OF CROSS-EXAMINATION AT A PRELIMINARY HEARING
THAT UNDERLIE THE DISSENT IN THIS CASE. 

IN VIEW OF THE EXTENDED DISCUSSION OF FEDERAL PRECEDENTS AND THE
EXPRESS REJECTION OF WEST'S CONTENTIONS THEREUNDER, FOR PRESENT
PURPOSES IT IS OF NO CONSEQUENCE THAT THE CASE INVOLVED A STATE
CRIMINAL PROSECUTION AND THAT THE COURT DECLINED TO HOLD THE SIXTH
AMENDMENT APPLICABLE AS SUCH. 

/18/  WHILE THE IMPORTANCE OF THE RIGHT TO CROSS-EXAMINE IS NOT TO
BE MINIMIZED, SEE 5 WIGMORE, SUPRA, SEC. 1367, THE DESIRABILITY OF
EXCLUDING OTHERWISE RELEVANT EVIDENCE SIMPLY BECAUSE IT HAS NOT BEEN
TESTED BY CROSS-EXAMINATION HAS BEEN FREQUENTLY QUESTIONED.  SEE
GENERALLY C. MCCORMICK, EVIDENCE SECS. 224, 302-305, AT 459, 628-634
(1954); ALI MODEL CODE OF EVIDENCE RULES 502, 503, AND COMMENT, AT 231
232 (1942); PRELIMINARY DRAFT OF PROPOSED RULES OF EVIDENCE FOR THE
UNITED STATES DISTRICT COURTS AND MAGISTRATES, RULE 8-03, AT 173
(1969); UNIFORM RULES OF EVIDENCE, RULE 63 (LIBERALIZED EXCEPTIONS). 
SEE ALSO JAMES, THE ROLE OF HEARSAY IN A RATIONAL SCHEME OF EVIDENCE,
34 ILL.L.REV.  788 (1940); CHADBOURN, BENTHAM AND THE HEARSAY RULE-- A
BENTHAMIC VIEW OF RULE 63(4)(C) OF THE UNIFORM RULES OF EVIDENCE, 75
HARV.L.REV.  932, 942-951 (1962) (UNIFORM RULES TOO RESTRICTED);
MCCORMICK, HEARSAY, 10 RUTGERS L.REV.  620, 630 (1956) (COMMENTING ON
UNIFORM RULES); CF. QUICK, EVIDENCE, 6 WAYNE L.REV.  163, 168 (1959)
(APPARENTLY CRITICAL OF THE TREND TOWARD ADMISSIBILITY).  JUDGES, TOO,
HAVE DISAGREED ON THE DESIRABILITY OF EXCLUDING HEARSAY, COMPARE CHIEF
JUSTICE MARSHALL'S VIEW SET FORTH IN QUEEN V. HEPBURN, 7 CRANCH 290
(1813), AND THAT OF JUSTICE STORY IN ELLICOTT V. PEARL, 10 PET. 412,
436 (1836), WITH THAT OF JUDGE LEARNED HAND SET FORTH IN HIS LECTURE TO
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE DEFICIENCIES OF
TRIALS TO REACH THE HEART OF THE MATTER, 3 LECTURES ON LEGAL TOPICS,
1921-1922, P. 89 (1926).     /19/  SEE REPORT OF THE NEW JERSEY SUPREME
COURT COMMITTEE ON EVIDENCE (1963).  THE POTENTIAL FOR SUFFOCATING
CREATIVE THINKING IS SUGGESTED BY THE COMMENTARY ON THE UNIFORM RULES
OF EVIDENCE BY THE CALIFORNIA LAW REVISION COMMISSION.  PRIOR TO
POINTER IN 1962 THE COMMISSION NOTED THAT DESPIRE THE FEDERAL RULE, IT
WAS FREE, CONSISTENT WITH DUE PROCESS, TO CONSIDER AND ADOPT UNIFORM
RULE 63(3)(B)(II), PROVIDING FOR USE OF TESTIMONY FROM A FORMER TRIAL
WHEN THERE WAS AN IDENTITY OF ISSUES AND REASON TO BELIEVE THERE WOULD
HAVE BEEN ADEQUATE CROSS-EXAMINATION AND THE DECLARANT IS UNAVAILABLE. 
THE COMMISSION RECOMMENDED ADOPTION OF RULE 63(3)(B)(II).  SEE
TENTATIVE RECOMMENDATION AND A STUDY RELATING TO THE UNIFORM RULES OF
EVIDENCE (1962), IN 4 CALIFORNIA LAW REVISION COMMISSION:  REPORTS,
RECOMMENDATIONS AND STUDIES 454-457 (1963).  THE PROVISION WAS OMITTED
FROM THE NEW EVIDENCE CODE WITH A COMMENT THAT A DEFENDANT IN A
CRIMINAL PROSECUTION SHOULD NOT BE MADE TO RELY ON ANOTHER INDIVIDUALS'
CROSS-EXAMINATION.  EVIDENCE CODE WITH OFFICIAL COMMENTS 1250
(CALIFORNIA LAW REVISION COMMISSION 1965).  WHILE THIS COURT'S DECISION
IN POINTER WAS APPARENTLY NOT RESPONSIBLE FOR THE DECISION TO OMIT THIS
PROVISION, SINCE THE FINAL COMMISSION REPORT WAS SUBMITTED IN JANUARY
1965, PRIOR TO POINTER, IT IS CLEAR THAT WERE HEARSAY
CONSTITUTIONALIZED, CALIFORNIA COULD NOT EVEN HAVE CONSIDERED THIS
INNOVATION. 

/20/  THIS IS NOT TO SAY THAT THE RIGHT TO CROSS-EXAMINATION IS NOT
AN ELEMENT OF DUE PROCESS.  ALFORD V. UNITED STATES, 282 U.S. 687
(1931); IN RE OLIVER, 333 U.S. 257 (1948); SNYDER V. MASSACHUSETTS, 291
U.S. 97 (1934); SMITH V. ILLINOIS, 390 U.S. 129 (1968).  DUE PROCESS
DOES NOT PERMIT A CONVICTION BASED ON NO EVIDENCE, THOMPSON V. CITY OF
LOUISVILLE, 362 U.S. 199 (1960); NIXON V. HERNDON, 273 U.S. 536 (1927),
OR ON EVIDENCE SO UNRELIABLE AND UNTRUSTWORTHY THAT IT MAY BE SAID THAT
THE ACCUSED HAD BEEN TRIED BY A KANGAROO COURT.  CF. IN RE OLIVER,
SUPRA; TURNER V. LOUISIANA, 379 U.S. 466 (1965). 

IN STOVALL V. DENNO, 388 U.S. 293 (1967), AND SIMMONS V. UNITED
STATES, 390 U.S. 377 (1968), THE UNDERLYING PRINCIPLE WAS REFINED.  THE
COURT THERE RECOGNIZED THAT EVIDENCE OF IDENTIFICATION-- ALWAYS A
CRITICAL ISSUE IN A CRIMINAL TRIAL-- SHOULD NOT BE RECEIVED IF THE
CIRCUMSTANCES OF A PRETRIAL CONFRONTATION WERE SO INFECTED BY
SUGGESTIVENESS AS TO GIVE RISE TO AN IRREPARABLE LIKELIHOOD OF
MISIDENTIFICATION.  BY THE SAME TOKEN I WOULD NOT PERMIT A CONVICTION
TO STAND WHERE THE CRITICAL ISSUES AT TRIAL WERE SUPPORTED ONLY BY EX
PARTE TESTIMONY NOT SUBJECTED TO CROSS-EXAMINATION, AND NOT FOUND TO BE
RELIABLE BY THE TRIAL JUDGE.  CF. UNITED STATES V. KEARNEY, 136
U.S.APP.D.C. 328, 420 F.2D 170 (1969).  IT WILL, OF COURSE, BE THE
UNUSUAL SITUATION WHERE THE PROSECUTION'S ENTIRE CASE IS BUILT UPON
HEARSAY TESTIMONY OF AN UNAVAILABLE WITNESS.  IN SUCH CIRCUMSTANCE THE
DEFENDANT WOULD BE ENTITLTED TO A HEARING ON THE RELIABILITY OF THE
TESTIMONY.  CF. ALI, MODEL CODE OF EVIDENCE; UNITED STATES V. KEARNEY,
SUPRA.  DUE PROCESS ALSO REQUIRES THAT THE DEFENSE BE GIVEN AMPLE
OPPORTUNITY TO ALERT THE JURY TO THE PITFALLS OF ACCEPTING HEARSAY AT
FACE VALUE, AND THE DEFENDANT WOULD, OF COURSE, UPON REQUEST BE
ENTITLED TO CAUTIONARY INSTRUCTIONS.  CF. SEC. 6.17, MANUAL ON JURY
INSTRUCTIONS, 33 F.R.D. 601 (MISSING WITNESSES).  ON THE BASIS OF THIS
APPROACH I WOULD STAND BY MY CONCURRENCE IN THE RESULT IN POINTER V.
TEXAS, SUPRA, BOTH BECAUSE THE OUT-OF-COURT STATEMENT FORMED THE BULK
OF THE PROSECUTOR'S CASE AND ALSO BECAUSE THERE WAS NO SHOWING THAT THE
WITNESS COULD NOT HAVE BEEN MADE AVAILABLE FOR CROSS-EXAMINATION.  SEE
ALSO BROOKHART V. JANIS, 384 U.S. 1 (1966); BARBER V. PAGE, 390 U.S.
719 (1968).  THE RESULT IN DOUGLAS V. ALABAMA, TO WHICH I ALSO STILL
ADHERE, CAN BE RATIONALIZED UNDER THIS TEST SINCE THERE THE
INADMISSIBLE CONFESSION "CONSTITUTED THE ONLY DIRECT EVIDENCE" THAT
PETITIONER HAD COMMITTED THE MURDER.  380 U.S.,AT 419.  AN ADDITIONAL
FACTOR WOULD MOVE ME TO STAND BY DOUGLAS.  IT WAS A CASE OF
PROSECUTORIAL MISCONDUCT.  BY PLACING THE WITNESS ON THE STAND AND
READING IN THE CONFESSION, THE PROSECUTOR, IN EFFECT, INCREASED THE
RELIABILITY OF THE CONFESSION IN THE JURY'S EYES IN VIEW OF THE
WITNESS' APPARENT ACQUIESCENCE AS OPPOSED TO REPUDIATION. 

/21/  CF. MAPUE V. ILLINOIS, 360 U.S. 264 (1959); MOONEY V. HOLOHAN,
294 U.S. 103 (1935). 

/22/  THE LENGTHS TO WHICH THE PROSECUTION MUST GO TO PRODUCE A
WITNESS BEFORE IT MAY OFFER EVIDENCE OF AN EXTRA-JUDICIAL DECLARATION
IS A QUESTION OF REASONABLENESS.  BARBER V. PAGE, SUPRA; CF. MULLANE V.
CENTRAL HANOVER TRUST CO., 339 U.S. 306 (1950).  A GOOD-FAITH EFFORT
IS, OF COURSE, NECESSARY, AND ADDED EXPENSE OR INCONVENIENCE IS NO
EXCUSE.  IT SHOULD ALSO BE OPEN TO THE ACCUSED TO REQUEST A CONTINUANCE
IF THE UNAVAILABILITY IS ONLY TEMPORARY.  CF. PETERSON V. UNITED
STATES, 344 F.2D 419, 425 (C.A. 5TH CIR. 1965). 

MR. JUSTICE BRENNAN, DISSENTING. 

RESPONDENT WAS CONVICTED OF VIOLATING CALIFORNIA HEALTH AND SAFETY
CODE SEC. 11532 WHICH PROHIBITS FURNISHING NARCOTICS TO A MINOR.  THE
ONLY ISSUE AT HIS TRIAL WAS WHETHER HE HAD IN FACT FURNISHED PORTER, A
MINOR, WITH MARIHUANA.  ON THE DIRECT TESTIMONY, IT DOES NOT APPEAR
THAT HE COULD HAVE BEEN CONSTITUTIONALLY CONVICTED, FOR IT SEEMS THAT
THERE WOULD HAVE BEEN INSUFFICIENT EVIDENCE TO SUSTAIN A FINDING OF
GUILT.  THE STATE PRESENTED THREE WITNESSES TO PROVE RESPONDENT'S
GUILT:  PORTER AND OFFICERS WADE AND DOMINGUEZ.  AS THE COURT STATES,
PORTER TESTIFIED AT TRIAL THAT "HE WAS UNCERTAIN HOW HE OBTAINED THE
MARIHUANA, PRIMARILY BECAUSE HE WAS AT THE TIME ON 'ACID' (LSD), WHICH
HE HAD TAKEN 20 MINUTES BEFORE RESPONDENT PHONED.  PORTER CLAIMED THAT
HE WAS UNABLE TO REMEMBER THE EVENTS THAT FOLLOWED THE PHONE CALL, AND
THAT THE DRUGS HE HAD TAKEN PREVENTED HIS DISTINGUISHING FACT FROM
FANTASY."  ANTE, AT 152.  OFFICER WADE HAD NO PERSONAL KNOWLEDGE OF THE
FACTS OF THE ALLEGED OFFENSE; HE WAS ABLE ONLY TO REPORT THE CONTENT OF
AN EXTRAJUDICIAL STATEMENT THAT PORTER HAD MADE TO HIM.  OFFICER
DOMINGUEZ TESTIFIED ABOUT AN INCIDENT WHOLLY SEPARATE FROM THE ALLEGED
OFFENSE; HIS TESTIMONY WAS CONSISTENT WITH THE DEFENSE ACCOUNT OF THE
FACTS.  /1/ 

THUS, THE EVIDENCE ON WHICH RESPONDENT WAS FOUND GUILTY CONSISTED OF
TWO PRETRIAL STATEMENTS BY PORTER.  THE FIRST WAS THE ACCOUNT GIVEN
OFFICER WADE.  IT WAS UNSWORN AND NOT SUBJECT TO DEFENSE CROSS
EXAMINATION.  PORTER'S DEMEANOR WHILE MAKING THE STATEMENT WAS NOT
OBSERVED BY THE TRIAL FACTFINDER.  THE STATEMENT WAS MADE UNDER
UNRELIABLE CIRCUMSTANCES-- IT WAS TAKEN FOUR DAYS AFTER PORTER'S ARREST
FOR SELLING MARIHUANA TO AN UNDERCOVER AGENT AND WHILE HE WAS STILL IN
CUSTODY.  /2/  NO WRITTEN TRANSCRIPT OF THE STATEMENT WAS INTRODUCED AT
TRIAL.  OFFICER WADE RECOUNTED IT SIMPLY AS HE REMEMBERED PORTER'S
WORDS.  /3/  THE SECOND STATEMENT WAS GIVEN BY PORTER DURING
RESPONDENT'S PRELIMINARY HEARING.  IT WAS SWORN AND SUBJECT TO CROSS
EXAMINATION.  DEFENSE COUNSEL, HOWEVER, DID NOT ENGAGE IN A SEARCHING
EXAMINATION.  /4/  AGAIN, PORTER'S DEMEANOR WHILE HE MADE THIS
STATEMENT WAS UNOBSERVED BY THE TRIAL FACTFINDER.  THE STATEMENT WAS
PUT BEFORE THIS FACTFINDER, OF COURSE, WHEN AT VARIOUS POINTS DURING
PORTER'S DIRECT EXAMINATION AT TRIAL THE PROSECUTOR READ EXCERPTS FROM
HIS PRELIMINARY HEARING TESTIMONY. 

ACCORDINGLY, THE FACTS OF THIS CASE PRESENT TWO QUESTIONS REGARDING
THE APPLICATION OF CALIFORNIA EVIDENCE CODE SEC. 1235:  FIRST, WHETHER
THE CONFRONTATION CLAUSE PERMITS A WITNESS' EXTRAJUDICIAL STATEMENT TO
BE ADMITTED AT TRIAL AS SUBSTANTIVE EVIDENCE WHEN THE WITNESS CLAIMS TO
BE UNABLE TO REMEMBER THE EVENTS WITH WHICH HIS PRIOR STATEMENT DEALT,
AND, SECOND, WHETHER THE CLAUSE PERMITS A WITNESS' EXTRAJUDICIAL
STATEMENT TO BE ADMITTED AT TRIAL AS SUBSTANTIVE EVIDENCE WHEN THE
WITNESS CLAIMS TO BE UNABLE TO REMEMBER THE EVENTS WITH WHICH HIS PRIOR
STATEMENT DEALT, AND, SECOND, WHETHER THE CLAUSE PERMITS A WITNESS'
PRELIMINARY HEARING STATEMENT, MADE UNDER OATH AND SUBJECT TO CROSS
EXAMINATION, TO BE INTRODUCED AT TRIAL AS SUBSTANTIVE EVIDENCE WHEN THE
WITNESS CLAIMS TO BE UNABLE TO REMEMBER THE EVENTS WITH WHICH THE
STATEMENT DEALT.  IN MY VIEW, NEITHER STATEMENT CAN BE INTRODUCED
WITHOUT UNCONSTITUTIONALLY RESTRICTING THE RIGHT OF THE ACCUSED TO
CHALLENGE INCRIMINATING EVIDENCE IN THE PRESENCE OF THE FACTFINDER WHO
WILL DETERMINE HIS GUILT OR INNOCENCE. 

        I 

THE COURT POINTS OUT THAT "THE PARTICULAR VICE THAT GAVE IMPETUS TO
THE CONFRONTATION CLAIM WAS THE PRACTICE OF TRYING DEFENDANTS ON
'EVIDENCE' WHICH CONSISTED SOLELY OF EX PARTE AFFIDAVITS OR DEPOSITIONS
SECURED BY THE EXAMINING MAGISTRATES, THUS DENYING THE DEFENDANT THE
OPPORTUNITY TO CHALLENGE HIS ACCUSER IN A FACE-TO-FACE ENCOUNTER IN
FRONT OF THE TRIER OF FACT."  ANTE, AT 156.  A FACE-TO-FACE ENCOUNTER,
OF COURSE, IS IMPORTANT, NOT SO THAT THE ACCUSED CAN VIEW AT TRIAL HIS
ACCUSER'S VISAGE, BUT SO THAT HE CAN DIRECTLY CHALLENGE THE ACCUSER'S
TESTIMONY BEFORE THE FACTFINDER.  SEE 5 J.WIGMORE, EVIDENCE 1364, 1365
(3D ED. 1940).  WE MADE THIS CLEAR IN MATTOX V. UNITED STATES, 156 U.S.
237, 242-243 (1895), WHERE WE STRESSED THE NECESSITY OF "A PERSONAL
EXAMINATION AND CROSS-EXAMINATION OF THE WITNESS IN WHICH THE ACCUSED
HAS AN OPPORTUNITY, NOT ONLY OF TESTING THE RECOLLECTION AND SIFTING
THE CONSCIENCE OF THE WITNESS, BUT OF COMPELLING HIM TO STAND FACE TO
FACE WITH THE JURY IN ORDER THAT THEY MAY LOOK AT HIM, AND JUDGE BY HIS
DEMEANOR UPON THE STAND AND THE MANNER IN WHICH HE GIVES HIS TESTIMONY
WHETHER HE IS WORTHY OF BELIEF." 

THERE IS NO WAY TO TEST THE RECOLLECTION AND SIFT THE CONSCIENCE OF
A WITNESS REGARDING THE FACTS OF AN ALLEGED OFFENSE IF HE IS UNWILLING
OR UNABLE TO BE QUESTIONED ABOUT THEM; /5/  DEFENSE COUNSEL CANNOT
PROBE THE STORY OF A SILENT WITNESS AND ATTEMPT TO EXPOSE FACTS THAT
QUALIFY OR DISCREDIT IT.  THE IMPETUS TO TRUTH INHERENT IN THE OATH
SWORN BY THE WITNESS, IN THE PENALTY FOR PERJURY, AND IN THE SERIOUS
PURPOSE OF THE COURTROOM HAVE NO EFFECT ON HIM SO FAR AS THE FACTS OF
THE ALLEGED OFFENSE ARE CONCERNED.  NOR, OBVIOUSLY, CAN THE FACTFINDER
VIEW HIS DEMEANOR WHILE HE RECOUNTS THE FACTS.  IF THE WITNESS CLAIMS
THAT HE IS UNABLE TO REMEMBER THE PERTINENT EVENTS, IT IS TRUE THAT
THIS ASSERTION CAN BE CHALLENGED, AND THAT IN MAKING AND DEFENDING IT
THE WITNESS WILL BE AFFECTED BY HIS OATH, THE PENALTY FOR PERJURY, AND
THE COURTROOM ATMOSPHERE.  IT IS EQUALLY TRUE THAT THE TRIAL FACTFINDER
CAN OBSERVE AND WEIGH THE WITNESS' DEMEANOR AS HE MAKES AND DEFENDS
SUCH A CLAIM.  BUT A DECISION BY THE FACTFINDER THAT THE WITNESS IS
LYING SHEDS NO DIRECT LIGHT ON THE ACCURACY OF ANY PRETRIAL STATEMENT
MADE BY HIM; THAT STATEMENT REMAINS WITHOUT THE SUPPORT OR DISCREDIT
THAT CAN COME ONLY FROM THE PROBING OF ITS FACTUAL BASIS WHILE THE
WITNESS STANDS FACE TO FACE WITH THE ACCUSED AND THE FACTFINDER.  IF
THE FACTFINDER DECIDES THAT THE WITNESS IS HONESTLY UNABLE TO REMEMBER
THE EVENTS IN QUESTION, THAT CONCLUSION MAY OR MAY NOT DIRECTLY GUIDE
THE FACTFINDER IN ASSESSING THE RELIABILITY OF THE PRETRIAL STATEMENT. 
IF, FOR EXAMPLE, THE WITNESS WERE UNABLE TO REMEMBER THE PERTINENT
FACTS BECAUSE HE WAS UNDER THE INFLUENCE OF DRUGS AT THE TIME THEY
OCCURRED, THE FACTFINDER MIGHT REASONABLY DISREGARD ANY PRETRIAL
ACCOUNT OF THESE EVENTS GIVEN BY THE WITNESS. 

THIS COURT HAS ALREADY EXPLICITLY HELD IN DOUGLAS V. ALABAMA, 380
U.S. 415, 419-320 (1965), THAT THE CONFRONTATION CLAUSE FORBIDS THE
SUBSTANTIVE USE AT TRIAL OF A PRIOR EXTRAJUDICIAL STATEMENT, WHEN THE
DECLARANT IS PRESENT AT TRIAL BUT UNWILLING TO TESTIFY ABOUT THE EVENTS
WITH WHICH HIS PRIOR STATEMENT DEALT.  IN DOUGLAS THE PROSECUTION
INTRODUCED THE ALLEGED CONFESSION OF THE ACCUSED'S SUPPOSED ACCOMPLICE,
ONE LOYD, WHO WAS UNWILLING TO TESTIFY ABOUT THE PERTINENT EVENTS FOR
FEAR OF SELF-INCRIMINATION.  WE HELD THAT "PETITIONER'S INABILITY TO
CROSS-EXAMINE LOYD AS TO THE ALLEGED CONFESSION PLAINLY DENIED HIM THE
RIGHT OF CROSS-EXAMINATION SECURED BY THE CONFRONTATION CLAUSE.  LOYD'S
ALLEGED STATEMENT THAT THE PETITIONER FIRED THE SHOTGUN CONSTITUTED THE
ONLY DIRECT EVIDENCE THAT HE HAD DONE SO . . . . (EFFECTIVE
CONFRONTATION OF LOYD WAS POSSIBLE ONLY IF LOYD AFFIRMED THE STATEMENT
AS HIS.  HOWEVER, LOYD DID NOT DO SO, BUT RELIED ON HIS PRIVILEGE TO
REFUSE TO ANSWER." 

FOR PURPOSES OF THE CONFRONTATION CLAUSE, THERE IS NO SIGNIFICANT
DIFFERENCE BETWEEN A WITNESS WHO FAILS TO TESTIFY ABOUT AN ALLEGED
OFFENSE BECAUSE HE IS UNWILLING TO DO SO AND A WITNESS WHOSE SILENCE IS
COMPELLED BY AN INABILITY TO REMEMBER.  BOTH ARE CALLED TO THE STAND TO
TESTIFY.  THE JURY MAY VIEW THE DEMEANOR OF EACH AS HE INDICATES WHY HE
WILL NOT DISCUSS THE CRUCIAL EVENTS.  BUT IN NEITHER INSTANCE ARE THE
PURPOSES OF THE CONFRONTATION CLAUSE SATISFIED, BECAUSE THE WITNESS
CANNOT BE QUESTIONED AT TRIAL CONCERNING THE PERTINENT FACTS.  IN BOTH
CASES, IF A PRETRIAL STATEMENT IS INTRODUCED FOR THE TRUTH OF THE FACTS
ASSERTED, THE WITNESS BECOMES SIMPLY A CONDUIT FOR THE ADMISSION OF
STALE EVIDENCE, WHOSE RELIABILITY CAN NEVER BE TESTED BEFORE THE TRIAL
FACTFINDER BY CROSS-EXAMINATION OF THE DECLARANT ABOUT THE OPERATIVE
EVENTS, AND BY OBSERVATION OF HIS DEMEANOR AS HE TESTIFIES ABOUT THEM. 
UNLIKE THE COURT, I SEE NO REASON TO LEAVE UNDECIDED THE
INADMISSIBILITY OF PORTER'S STATEMENTS TO OFFICER WADE.  WE HAVE BEFORE
US THE TRANSCRIPT OF PORTER'S TRIAL TESTIMONY.  HE COULD NOT REMEMBER
THE OPERATIVE EVENTS.  WHETHER HE FEIGNED LOSS OF MEMORY IS IRRELEVANT
TO RESPONDENT'S CONFRONTATION CLAIM.  UNDER DOUGLAS HIS STATEMENT TO
OFFICER WADE MUST BE EXCLUDED AS SUBSTANTIVE EVIDENCE.  /6/

        II 

THE QUESTION REMAINS WHETHER THE FACT THAT A PRETRIAL STATEMENT WAS
OBTAINED AT A PRELIMINARY HEARING, UNDER OATH AND SUBJECT TO CROSS
EXAMINATION, DISTINGUISHES THAT STATEMENT FOR CONFRONTATION PURPOSES
FROM AN EXTRAJUDICIAL STATEMENT.  I THOUGHT THAT OUR DECISION IN BARBER
V. PAGE, 390 U.S. 719 (1968), RESOLVED THIS ISSUE.  IN BARBER WE STATED
THAT CONFRONTATION AT A PRELIMINARY HEARING CANNOT COMPENSATE FOR THE
ABSENCE OF CONFRONTATION AT TRIAL, BECAUSE THE NATURE AND OBJECTIVES OF
THE TWO PROCEEDINGS DIFFER SIGNIFICANTLY.  IN THAT CASE, THE
PROSECUTION ARGUED THAT THE ACCUSED HAD WAIVED HIS RIGHT TO CROSS
EXAMINATION AT THE PRELIMINARY HEARING.  THOUGH WE REJECTED THAT
ARGUMENT, TO PUT BEYOND DOUBT THE NECESSITY FOR CONFRONTATION AT TRIAL,
WE STATED: 

"MOREOVER, WE WOULD REACH THE SAME RESULT ON THE FACTS OF THIS

  CASE HAD PETITIONER'S COUNSEL ACTUALLY CROSS-EXAMINED (THE

  WITNESS) AT THE PRELIMINARY HEARING . . . . THE RIGHT TO

  CONFRONTATION IS BASICALLY A TRIAL RIGHT.  IT INCLUDES BOTH THE

  OPPORTUNITY TO CROSS-EXAMINE AND THE OCCASION FOR THE JURY TO

  WEIGH THE DEMEANOR OF THE WITNESS.  A PRELIMINARY HEARING IS

  ORDINARILY A MUCH LESS SEARCHING EXPLORATION INTO THE MERITS OF A

  CASE THAN A TRIAL, SIMPLE BECAUSE ITS FUNCTION IS THE MORE

  LIMITED ONE OF DETERMINING WHETHER PROBABLE CAUSE EXISTS TO HOLD

  THE ACCUSED FOR TRIAL."  ID., AT 725.  /7/

WE APPLIED BARBER RETROACTIVELY IN BERGER V. CALIFORNIA, 393 U.S. 314
(1969), A CASE IN WHICH DEFENSE COUNSEL DID HAVE AN OPPORTUNITY TO
CROSS-EXAMINE THE WITNESS AT THE PRELIMINARY HEARING.  WE HELD,
NONETHELESS, THAT "(CLEARLY, PETITIONER'S INABILITY TO CROSS-EXAMINE .
. . AT TRIAL MAY HAVE HAD A SIGNIFICANT EFFECT ON THE 'INTEGRITY OF THE
FACT-FINDING PROCESS.'"  ID., AT 315. 

PRELIMINARY HEARINGS IN CALIFORNIA ARE NOT ATYPICAL IN THEIR NATURE
AND OBJECTIVES: 

     "IN MOST CALIFORNIA CRIMINAL PROSECUTIONS THE PRELIMINARY

  EXAMINATION IS CONDUCTED AS A RATHER PERFUNCTORY UNCONTESTED

  PROCEEDING WITH ONLY ONE LIKELY DENOUEMENT-- AN ORDER HOLDING THE

  DEFENDANT FOR TRIAL.  ONLY TELEVISION LAWYERS CUSTOMARILY

  DEMOLISH THE PROSECUTION IN THE MAGISTRATE'S COURT.  THE

  PROSECUTION NEED SHOW ONLY 'PROBABLE CAUSE,' A BURDEN VASTLY

  LIGHTER THAN PROOF BEYOND A REASONABLE DOUBT."  PEOPLE V. GIBBS,

  255 CAL.APP.2D 739, 743-744, 63 CAL.RPTR.  471, 475 (1967). 

IT FOLLOWS THAT THE PURPOSES OF THE CONFRONTATION CLAUSE CANNOT BE
SATISIFED BY A FACE-TO-FACE ENCOUNTER AT THE PRELIMINARY HEARING. 
CROSS-EXAMINATION AT THE HEARING PALES BESIDE THAT WHICH TAKES PLACE AT
TRIAL.  THIS IS SO FOR A NUMBER OF REASONS.  FIRST, AS NOTED, THE
OBJECTIVE OF THE HEARING IS TO ESTABLISH THE PRESENCE OR ABSENCE OF
PROBABLE CAUSE, NOT GUILT OR INNOCENCE PROVED BEYOND A REASONABLE
DOUBT; THUS, IF EVIDENCE SUFFICES TO ESTABLISH PROBABLE CAUSE, DEFENSE
COUNSEL HAS LITTLE REASON AT THE PRELIMINARY HEARING TO SHOW THAT IT
DOES NOT CONCLUSIVELY ESTABLISH GUILT-- OR, AT LEAST, HE HAD LITTLE
REASON BEFORE TODAY'S DECISION.  SECOND, NEITHER DEFENSE NOR
PROSECUTION IS EAGER BEFORE TRIAL TO DISCLOSE ITS CASE BY EXTENSIVE
EXAMINATION AT THE PRELIMINARY HEARING; THOROUGH QUESTIONING OF A
PROSECUTION WITNESS BY DEFENSE COUNSEL MAY EASILY AMOUNT TO A GRANT OF
GRATIS DISCOVERY TO THE STATE.  THIRD, THE SCHEDULES OF NEITHER COURT
NOR COUNSEL CAN EASILY ACCOMMODATE LENGTHY PRELIMINARY HEARINGS. 
FOURTH, EVEN WERE THE JUDGE AND LAWYERS NOT CONCERNED THAT THE
PROCEEDINGS BE BRIEF, THE DEFENSE AND PROSECUTION HAVE GENERALLY HAD
INADEQUATE TIME BEFORE THE HEARING TO PREPARE FOR EXTENSIVE
EXAMINATION.  FINALLY THOUGH COUNSEL WERE TO ENGAGE IN EXTENSIVE
QUESTIONING, A PART OF ITS FORCE WOULD NEVER REACH THE TRIAL
FACTFINDER, WHO WOULD KNOW THE EXAMINATION ONLY SECOND HAND.  AS THE
CALIFORNIA SUPREME COURT STATED: 

     "(LOST IN A COLD READING OF THE PRELIMINARY TRANSCRIPT IS THE

  MORE SUBTLE YET UNDENIABLE EFFECT OF COUNSEL'S RHETORICAL STYLE

  HIS PAUSES FOR EMPHASIS AND HIS VARIATIONS IN TONE, AS WELL AS

  HIS PERSONAL RAPPORT WITH THE JURORS, AS HE PURSUES HIS

  CROSS-EXAMINATION.  FOR EXAMPLE, . . . WHILE THE LAWYER 'MUST

  KEEP CONTROL OF HIMSELF . . . (THIS DOES NOT MEAN THAT THE

  CROSS-EXAMINER NEVER SHOULD FIGHT WITH A WITNESS, RAISE HIS

  VOICE, OR BECOME ANGRY.  FORENSIC INDIGNATION, WHETHER EXPRESSED

  PHYSICALLY OR VERBALLY, MAY PRODUCE GOOD RESULTS IN SPECIAL

  CIRCUMSTANCES.'  IN ADDITION, COUNSEL MAY WELL CONDUCT HIS

  CROSS-EXAMINATION IN A DIFFERENT MANNER BEFORE A COMMITTING

  MAGISTRATE THAN BEFORE A TRIAL COURT OR JURY.  THUS, . . .

  COUNSEL MUST ALWAYS TEMPER HIS CROSS-EXAMINATION TO THE

  INDIVIDUAL JURORS, USING THEIR REACTIONS AS A GUIDE TO THE MOST

  EFFECTIVE LINE OF QUESTIONING.  'THE CROSS-EXAMINER MUST REMEMBER

  THAT HE IS A PERFORMER AND THE JURORS ARE HIS AUDIENCE.  NO GOOD

  PERFORMER IGNORES HIS AUDIENCE, AND ALL PERFORMANCES ARE

  CONDUCTED FOR THE PURPOSE OF FAVORABLY IMPRESSING THE AUDIENCE.' 

  . . . WE CONCLUDE THAT EXPERIENCE DEMONSTRATES THE ESSENTIALITY

  OF TRULY CONTEMPORANEOUS CROSS-EXAMINATION."  70 CAL.2D, AT

  662-663, 451 P.2D, AT 427. 

IF CROSS-EXAMINATION AT THE PRELIMINARY HEARING RARELY APPROXIMATES
THAT AT TRIAL, OBSERVATION BY THE TRIAL FACTFINDER OF THE WITNESS'
DEMEANOR AS HE GIVES HIS PRIOR TESTIMONY IS VIRTUALLY NONEXISTENT. 
UNLESS THE COMMITTING MAGISTRATE IS ALSO THE TRIAL FACTFINDER, THE
DEMEANOR PURPOSE OF THE CONFRONTATION CLAUSE IS WHOLLY NEGATED BY
SUBSTITUTING CONFRONTATION AT THE PRELIMINARY HEARING FOR CONFRONTATION
AT TRIAL.  AND YET, IN THE WORDS OF THE CALIFORNIA COURT, "(IT IS
BECAUSE DEMEANOR-- ATTITUDE AND MANNER-- IS A SIGNIFICANT FACTOR IN
WEIGHING TESTIMONIAL EVIDENCE THAT IT IS AXIOMATIC THE TRIER OF FACT,
BEFORE WHOM THE WITNESS TESTIFIED AND WAS CROSS-EXAMINED . . . , IS THE
SOLE JUDGE OF THE CREDIBILITY OF A WITNESS AND OF THE WEIGHT TO BE
GIVEN HIS TESTIMONY."  ID., AT 662, 451 P.2D, AT 427.  NO SUCH
DETERMINATION OF CREDIBILITY IS POSSIBLE WHEN THE WITNESS COMES BEFORE
THE TRIAL FACTFINDER BY THE READING OF A COLD TRANSCRIPT. 

IT APPEARS, THEN, THAT IN TERMS OF THE PURPOSES OF THE CONFRONTATION
CLAUSE, AN EQUATION OF FACE-TO-FACE ENCOUNTER AT THE PRELIMINARY
HEARING WITH CONFRONTATION AT TRIAL MUST REST LARGELY ON THE FACT THAT
THE WITNESS TESTIFIED AT THE HEARING UNDER OATH, SUBJECT TO THE PENALTY
FOR PERJURY, AND IN A COURTROOM ATMOSPHERE.  THESE FACTORS ARE NOT
INSIGNIFICANT, BUT BY THEMSELVES THEY FALL FAR SHORT OF SATISFYING THE
DEMANDS OF CONSTITUTIONAL CONFRONTATION.  MOREOVER, THE ATMOSPHERE AND
STAKES ARE DIFFERENT IN THE TWO PROCEEDINGS.  IN THE HURRIED, SOMEWHAT
PRO FORMA CONTEXT OF THE AVERAGE PRELIMINARY HEARING, A WITNESS MAY BE
MORE CARELESS IN HIS TESTIMONY THAN IN THE MORE MEASURED AND SEARCHING
ATMOSPHERE OF A TRIAL.  SIMILARLY, A MAN WILLING TO PERJURE HIMSELF
WHEN THE CONSEQUENCES ARE SIMPLY THAT THE ACCUSED WILL STAND TRIAL MAY
BE LESS WILLING TO DO SO WHEN HIS LIES MAY CONDEMN THE DEFENDANT TO
LOSS OF LIBERTY.  IN SHORT, IT IGNORES REALITY TO ASSUME THAT THE
PURPOSES OF THE CONFRONTATION CLAUSE ARE MET DURING A PRELIMINARY
HEARING.  ACCORDINGLY, TO INTRODUCE PRELIMINARY HEARING TESTIMONY FOR
THE TRUTH OF THE FACTS ASSERTED, WHEN THE WITNESS IS IN COURT AND
EITHER UNWILLING OR UNABLE TO TESTIFY REGARDING THE PERTINENT EVENTS,
DENIES THE ACCUSED HIS SIXTH AMENDMENT RIGHT TO GRAPPLE EFFECTIVELY
WITH INCRIMINATING EVIDENCE. 

THE COURT'S RULING, MOREOVER, MAY HAVE UNSETTLING EFFECTS ON THE
NATURE AND OBJECTIVES OF FUTURE PRELIMINARY HEARINGS.  THE CALIFORNIA
COURT DEFINED THE PROBLEM:  "WERE WE TO EQUATE PRELIMINARY AND TRIAL
TESTIMONY ONE PRACTICAL RESULT MIGHT BE THAT THE PRELIMINARY HEARING,
DESIGNED TO AFFORD AN EFFICIENT AND SPEEDY MEANS OF DETERMINING THE
NARROW QUESTION OF PROBABLE CAUSE, WOULD TEND TO DEVELOP INTO A FULL
SCALE TRIAL.  THIS WOULD INVITE THOROUGH AND LENGTHY CROSS-EXAMINATION,
WITH THE CONSEQUENT NECESSITY OF DELAYS AND CONTINUANCES TO BRING IN
REBUTTAL AND IMPEACHMENT WITNESSES, TO GATHER ALL AVAILABLE EVIDENCE,
AND TO ASSURE GENERALLY THAT NOTHING REMAINED FOR LATER CHALLENGE.  IN
TIME THIS RESULT WOULD PROSTITUTE THE ACCEPTED PURPOSE OF PRELIMINARY
HEARINGS AND MIGHT PLACE AN INTOLERABLE BURDEN ON THE TIME AND
RESOURCES OF THE COURTS OF FIRST INSTANCE."  70 CAL.2D, AT 664, 451
P.2D, AT 428. 

CONSCIENTIOUS DEFENSE COUNSEL, AWARE THAT TODAY'S DECISION HAS
INCREASED THE LIKELIHOOD OF THE USE OF PRELIMINARY HEARING TESTIMONY AT
TRIAL, MAY WELL WISH TO CONDUCT A FULL-SCALE, UNLIMITED CROSS
EXAMINATION OF PROSECUTION WITNESSES AT THE HEARING.  WE HELD IN
COLEMAN V. ALABAMA, ANTE, P. 1, THAT AN ACCUSED HAS A RIGHT TO
ASSISTANCE OF COUNSEL DURING A PRELIMINARY HEARING.  AND WE HAVE MADE
CLEAR THAT "IT IS A DENIAL OF THE ACCUSED'S CONSTITUTIONAL RIGHT TO A
FAIR TRIAL TO FORCE HIM TO TRIAL WITH SUCH EXPEDITION AS TO DEPRIVE HIM
OF THE EFFECTIVE AID AND ASSISTANCE OF COUNSEL."  WHITE V. RAGEN, 324
U.S. 760, 764 (1945).  IN LIGHT OF TODAY'S DECISION, MAY DEFENSE
COUNSEL BE DENIED REQUESTS FOR DELAY THAT ARE REASONABLY NECESSARY TO
ENABLE HIM TO CONDUCT A THOROUGH EXAMINATION AT THE PRELIMINARY
HEARING?  WHAT LIMITS, IF ANY, MAY STILL BE PLACED ON THE DEFENSE'S USE
OF THE PRELIMINARY HEARING AS A DISCOVERY DEVICE TO EXTRACT INFORMATION
FROM THE PROSECUTION THAT IS REASONABLY NECESSARY, NOT TO A
DETERMINATION OF PROBABLE CAUSE, BUT TO A RIGOROUS EXAMINATION OF
GOVERNMENT WITNESSES?  DO THE REQUISITES OF "EFFECTIVE ASSISTANCE OF
COUNSEL" REQUIRE DEFENSE COUNSEL TO CONDUCT SUCH AN EXAMINATION?  /8/ 

THE COURT RELIES HEAVILY ON THE TRADITIONAL PRACTICE OF ADMITTING
THE PRIOR TESTIMONY OF A WITNESS WHO IS PHYSICALLY UNAVAILABLE AT
TRIAL.  IT FINDS NO GROUND FOR DISTINGUISHING BETWEEN THE PRETRIAL
DECLARANT WHO FAILS TO TESTIFY AT TRIAL BECAUSE HE IS NOT PHYSICALLY
PRESENT AND THE PRETRIAL DECLARANT WHO, THOUGH PRESENT AT TRIAL, FAILS
TO TESTIFY BECAUSE HE IS UNWILLING OR UNABLE TO DO SO.  THE COURT
REASONS THAT THE "NECESSITY" FOR THE INTRODUCTION OF EITHER DECLARANT'S
PRIOR STATEMENT IS "THE STATE'S 'NEED' TO INTRODUCE RELEVANT EVIDENCE,"
AND THAT THE TESTIMONY'S "RELIABILITY" RESTS "ON THE CIRCUMSTANCES
UNDER WHICH IT WAS GIVEN-- CIRCUMSTANCES THAT REMAIN UNAFFECTED
REGARDLESS OF WHETHER THE WITNESS IS PRESENT OR ABSENT AT THE LATER
TRIAL."  ANTE, AT 167 N. 16.  I DISAGREE. 

THE STATE, OBVIOUSLY, DOES NEED TO INTRODUCE RELEVANT EVIDENCE.  BUT
THE "NECESSITY" THAT JUSTIFIES THE ADMISSION OF PRETRIAL STATEMENTS IS
NOT THE PROSECUTION'S NEED TO CONVICT, BUT THE FACTFINDER'S NEED TO BE
PRESENTED WITH RELIABLE EVIDENCE TO AID ITS DETERMINATION OF GUILT OR
INNOCENCE.  WHETHER A WITNESS' ASSERTIONS ARE RELIABLE ORDINARILY HAS
LITTLE OR NO BEARING ON THEIR ADMISSIBILITY, FOR THEY ARE SUBJECT TO
THE CORRECTIVE INFLUENCES OF HIS DEMEANOR AND CROSS-EXAMINATION.  IF,
HOWEVER, THERE IS NO POSSIBILITY THAT HIS ASSERTIONS CAN BE SO TESTED
AT TRIAL, THEN THEIR RELIABILITY BECOMES AN IMPORTANT FACTOR IN
DECIDING WHETHER TO PERMIT THEIR PRESENTATION TO THE FACTFINDER.  WHEN
A PROBABILITY EXISTS THAT INCRIMINATING PRETRIAL TESTIMONY IS
UNRELIABLE, ITS ADMISSION, ABSENT CONFRONTATION, WILL PREJUDICIALLY
DISTORT THE FACTFINDING PROCESS. 

THE RELIABILITY OF PRETRIAL TESTIMONY, IN TURN, IS NOT DETERMINED
SIMPLY BY THE CIRCUMSTANCES UNDER WHICH IT WAS GIVEN.  IT IS ALSO
INFLUENCED BY SUBSEQUENT DEVELOPMENTS.  IF, FOR EXAMPLE, PRIOR
TESTIMONY IS LATER DISAVOWED BY THE DECLARANT IN AN EXTRAJUDICIAL BUT
CONVINCING STATEMENT, IT WOULD BE UNREALISTIC TO ARGUE AT A LATER
TRIAL, FROM WHICH THE DECLARANT WAS PHYSICALLY ABSENT, THAT THE
RELIABILITY OF HIS PRIOR TESTIMONY WAS UNAFFECTED BY THE INTERVENING
EVENT. 

THE SUBSEQUENT DEVELOPMENTS UNDER CONSIDERATION HERE ARE (1) FAILURE
TO TESTIFY AT TRIAL BECAUSE OF PHYSICAL UNAVAILABILITY AND (2) FAILURE
TO TESTIFY BECAUSE OF UNWILLINGNESS TO DO SO OR INABILITY TO REMEMBER. 
IN MY VIEW, THESE DEVELOPMENTS HAVE VERY DIFFERENT IMPLICATIONS FOR THE
RELIABILITY OF PRIOR TESTIMONY.  PHYSICAL UNAVAILABILITY IS GENERALLY A
NEUTRAL FACTOR; IN MOST INSTANCES IT DOES NOT CAST DOUBT ON THE
WITNESS' EARLIER ASSERTIONS.  INABILITY TO REMEMBER THE PERTINENT
EVENTS, ON THE OTHER HAND, OR UNWILLINGNESS TO TESTIFY ABOUT THEM,
WHETHER BECAUSE OF FEIGNED LOSS OF MEMORY OR FEAR OF SELF
INCRIMINATION, DOES CAST SUCH DOUBT.  HONEST INABILITY TO REMEMBER AT
TRIAL RAISES SERIOUS QUESTION ABOUT CLARITY OF MEMORY AT THE TIME OF
THE PRETRIAL STATEMENT.  THE DECEIT INHERENT IN FEIGNED LOSS OF MEMORY
LESSENS CONFIDENCE IN THE PROBITY OF PRIOR ASSERTIONS.  AND FEAR OF
SELF-INCRIMINATION AT TRIAL SUGGESTS THAT THE WITNESS MAY HAVE SHAPED
PRIOR TESTIMONY SO AS TO AVOID DANGEROUS CONSEQUENCES FOR HIMSELF. 
RELIABILITY CANNOT BE ASSUMED SIMPLY BECAUSE A PRIOR STATEMENT WAS MADE
AT A PRELIMINARY HEARING. 

IN SUM, I FIND THAT PORTER'S REAL OR PRETENDED LAPSE OF MEMORY ABOUT
THE PERTINENT EVENTS CASTS SERIOUS DOUBT UPON THE RELIABILITY OF HIS
PRELIMINARY HEARING TESTIMONY.  IT IS CLEAR THAT SO LONG AS A WITNESS,
SUCH AS PORTER, CANNOT OR WILL NOT TESTIFY ABOUT THESE EVENTS AT TRIAL,
THE ACCUSED REMAINS UNABLE TO CHALLENGE EFFECTIVELY THAT WITNESS' PRIOR
ASSERTIONS ABOUT THEM.  THE PROBABLY UNRELIABILITY OF THE PRIOR
TESTIMONY, COUPLED WITH THE IMPOSSIBILITY OF ITS EXAMINATION DURING
TRIAL, DENIES THE ACCUSED HIS RIGHT TO PROBE AND ATTEMPT TO DISCREDIT
INCRIMINATING EVIDENCE.  ACCORDINGLY, I WOULD HOLD CALIFORNIA EVIDENCE
CODE SEC. 1235 IN VIOLATION OF THE CONFRONTATION CLAUSE TO THE EXTENT
THAT IT PERMITS THE SUBSTANTIVE USE AT TRIAL OF PRIOR STATEMENTS,
WHETHER EXTRAJUDICIAL OR TESTIMONIAL, WHEN THE DECLARANT IS PRESENT AT
TRIAL BUT UNABLE OR UNWILLING TO BE QUESTIONED ABOUT THE EVENTS WITH
WHICH THE PRIOR STATEMENTS DEALT.  I WOULD THEREFORE AFFIRM THE
REVERSAL OF RESPONDENT'S CONVICTION.     /1/  SEE PEOPLE V. GREEN, 70
CAL.2D 654, 657-658, 451 P.2D 422, 424 (1969). 

/2/  PORTER DECLARED UNDER OATH ON MAY 12, 1967, THAT "WHEN I WAS
ARRESTED AND WAS IN CUSTODY, THE POLICE KEPT TELLING ME THAT THEY KNEW
IT WAS JOHN GREEN I WAS INVOLVED WITH AND THAT UNLESS I IMPLICATED HIM
THAT THEY WOULD SEE THAT I WAS OUT OF CIRCULATION FOR A LONG TIME . . .
." 

/3/  CF. GOLDBERG V. KELLY, 397 U.S. 254, 269 (1970), WHERE THE
COURT STATED THAT "(THE SECOND-HAND PRESENTATION TO THE DECISION MAKER
BY THE CASEWORKER HAS ITS OWN DEFICIENCIES; SINCE THE CASEWORKER
USUALLY GATHERS THE FACTS UPON WHICH THE CHARGE OF INELIGIBILITY RESTS,
THE PRESENTATION OF THE RECIPIENT'S SIDE OF THE CONTROVERSY CANNOT
SAFELY BE LEFT TO HIM." 

/4/  NO QUESTION, FOR EXAMPLE, WAS ASKED PORTER BY EITHER THE
DEFENSE OR PROSECUTION AS TO WHETHER HE WAS UNDER THE INFLUENCE OF
DRUGS AT THE TIME OF THE ALLEGED OFFENSE. 

/5/  IF, ON THE OTHER HAND, THE WITNESS IS WILLING AND ABLE TO
TESTIFY AT TRIAL ABOUT THE OPERATIVE EVENTS, THE DEMANDS OF THE
CONFRONTATION CLAUSE MAY BE MET, EVEN THOUGH THE WITNESS CONTRADICTS
HIS PRETRIAL ASSERTIONS.  I SEE NO NEED ON THE FACTS PRESENTED HERE,
HOWEVER, TO RESOLVE THIS ISSUE. 

/6/  THE FACT THAT IN APPROPRIATE CIRCUMSTANCES SUCH A STATEMENT MAY
BE ADMITTED TO IMPEACH A WITNESS IS NOT AS ANOMALOUS AS THE COURT
SUGGESTS, ANTE, AT 164.  IF, FOR EXAMPLE, PORTER'S PRETRIAL STATEMENTS
HAD BEEN ADMITTED AT RESPONDENT'S TRIAL SOLELY FOR IMPEACHMENT
PURPOSES, THEY WOULD NOT HAVE PROVIDED SUBSTANTIVE PROOF OF HIS GUILT,
AND, AS NOTED, THESE WOULD THEN VERY LIKELY HAVE BEEN INSUFFICIENT
EVIDENCE TO SUSTAIN HIS CONVICTION. 

/7/  THE CALIFORNIA SUPREME COURT IN THE PRESENT CASE DISCUSSED IN
MORE DETAIL THE DISTINCTIONS BETWEEN A PRELIMINARY HEARING AND TRIAL,
STATING THAT "THE PURPOSE OF A PRELIMINARY HEARING IS NOT A FULL
EXPLORATION OF THE MERITS OF A CAUSE OR OF THE TESTIMONY OF THE
WITNESSES.  IT IS DESIGNED AND ADAPTED SOLELY TO ANSWER THE FAR
NARROWER PRELIMINARY QUESTION OF WHETHER PROBABLE CAUSE EXISTS FOR A
SUBSEQUENT TRIAL.  THE JUDGE IN PRELIMINARY PROCEEDINGS IS NOT REQUIRED
TO BE CONVINCED OF THE DEFENDANT'S GUILT 'BEYOND A REASONABLE DOUBT,'
BUT NEED ONLY LOOK FOR REASONABLE CREDIBILITY IN THE CHARGE AGAINST
HIM.  A FORTIORI A WITNESS' TESTIMONY, THOUGH THE ONLY EVIDENCE
ADDUCED, NEED NOT BE CONVINCING OR CREDIBLE BEYOND A REASONABLE DOUBT,
AND CROSS-EXAMINATION WHICH WOULD SURELY IMPEACH A WITNESS AT TRIAL
WOULD NOT PRECLUE A FINDING OF PROBABLE CAUSE AT THE PRELIMINARY
STAGE.  EVEN GIVEN THE OPPORTUNITY . . . NEITHER PROSECUTION NOR
DEFENSE IS GENERALLY WILLING OR ABLE TO FIRE ALL ITS GUNS AT THIS EARLY
STAGE OF THE PROCEEDINGS, FOR CONSIDERATIONS BOTH OF TIME AND EFFICACY
. . . . INDEED, IT IS SELDOM THAT EITHER PARTY HAS HAD TIME FOR
INVESTIGATION TO OBTAIN POSSESSION OF ADEQUATE INFORMATION TO PURSUE IN
DEPTH DIRECT OR CROSS-EXAMINATION."  70 CAL.2D, AT 663, 451 P.2D, AT
428.  SEE ALSO VIRGIN ISLANDS V. AQUINO, 378 F.2D 540, 549 (C.A. 3D
CIR. 1967). 

/8/  BEYOND THESE PROBLEMS, TODAY'S HOLDING RAISES ANOTHER PRACTICAL
DIFFICULTY:  HOW EXTENSIVE MUST CROSS-EXAMINATION AT THE PRELIMINARY
HEARING BE BEFORE CONSTITUTIONAL CONFRONTATION IS DEEMED TO HAVE
OCCURRED?  IS THE MERE OPPORTUNITY FOR FACE-TO-FACE ENCOUNTER
SUFFICIENT?  PERHAPS SO.  THE COURT STATES THAT "RESPONDENT HAD EVERY
OPPORTUNITY TO CROSS-EXAMINE PORTER AS TO HIS STATEMENT" AT THE
HEARING.  ANTE, AT 165.  DOES THAT MEAN THAT IF DEFENSE COUNSEL FAILS
TO TAKE ADVANTAGE OF THE OPPORTUNITY THAT THE ACCUSED CAN SUBSEQUENTLY
BE CONVICTED AT TRIAL ON THE BASIS OF WHOLLY UNTESTED EVIDENCE?  IF
MORE THAN AN UNEXERCISED CHANCE TO CROSS-EXAMINE IS REQUIRED, HOW
THOROUGH AND EFFECTIVE MUST THE QUESTIONING BE BEFORE IT SATISFIES THE
CONFRONTATION CLAUSE?  IS IT SIGNIFICANT, FOR EXAMPLE, THAT IN THE
PRESENT CASE NEITHER THE DEFENSE NOR PROSECUTION EXPLORED THE MOST
ELEMENTAL FACT ABOUT PORTER'S TESTIMONY-- THE POSSIBILITY THAT HE WAS
UNDER THE INFLUENCE OF DRUGS AT THE TIME OF THE ALLEGED OFFENSE? 

WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL OF CALIFORNIA, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WAS THOMAS C. LYNCH,
ATTORNEY GENERAL. 

E. BARRETT PRETTYMAN, JR., BY APPOINTMENT OF THE COURT, 396 U.S.
1048, ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE ASSISTANT
ATTORNEY GENERAL WILSON, PETER L. STRAUSS, BEATRICE ROSENBERG, AND
ROGER A. PAULEY. 
..END :












PHOENIX V. KOLODZIEJSKI, 399 U.S. 204 


       CITY OF PHOENIX ET AL. V. KOLODZIEJSKI

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

    DISTRICT OF ARIZONA

        NO. 1066.  ARGUED MARCH 31, 1970-- DECIDED JUNE 23, 1970 


THE CITY OF PHOENIX HELD AN ELECTION IN JUNE 1969 AT WHICH THE
ISSUANCE OF GENERAL OBLIGATION BONDS TO FINANCE VARIOUS MUNICIPAL
IMPROVEMENTS WAS APPROVED.  UNDER ARIZONA LAW ONLY REAL PROPERTY
TAXPAYERS WERE PERMITTED TO VOTE.  SIX DAYS AFTER THE ELECTION THIS
COURT HELD IN CIPRIANO V. CITY OF HOUMA, 395 U.S. 701, THAT RESTRICTING
THE FRANCHISE TO PROPERTY TAXPAYERS IN ELECTIONS ON REVENUE BONDS
VIOLATED THE EQUAL PROTECTION CLAUSE.  IN AUGUST 1969 APPELLEE, WHO
OWNED NO REALTY, CHALLENGED THE FRANCHISE RESTRICTION AND ATTACKED THE
VALIDITY OF THE JUNE ELECTION.  THE DISTRICT COURT, FINDING NO
SIGNIFICANT DIFFERENT BETWEEN REVENUE BONDS AND GENERAL OBLIGATION
BONDS, HELD THE NONPROPERTY-OWNER EXCLUSION UNCONSTITUTIONAL.  IT
DECLARED THE JUNE BOND ELECTION INVALID, SINCE THE AUTHORIZATION FOR
THE ISSUANCE OF THE BONDS WAS NOT FINAL ON THE DATE OF THE CIPRIANO
DECISION.  HELD: 

1.  THE EQUAL PROTECTION CLAUSE DOES NOT PERMIT A STATE TO RESTRICT
THE FRANCHISE TO REAL PROPERTY TAXPAYERS IN ELECTIONS TO APPROVE THE
ISSUANCE OF GENERAL OBLIGATION BONDS, AS THE DIFFERENCES BETWEEN THE
INTERESTS OF PROPERTY OWNERS AND NONPROPERTY OWNERS ARE NOT
SUFFICIENTLY SUBSTANTIAL TO JUSTIFY EXCLUDING THE LATTER FROM VOTING. 
PP. 207-213. 

2.  THIS DECISION WILL APPLY ONLY TO AUTHORIZATIONS FOR GENERAL
OBLIGATION BONDS THAT ARE NOT FINAL AS OF THE DATE OF THIS DECISION. 
PP. 213-215. 

AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN KRAMER V. UNION FREE SCHOOL DISTRICT, 395 U.S. 621 (1969), THIS
COURT HELD THAT A STATE COULD NOT RESTRICT THE VOTE IN SCHOOL DISTRICT
ELECTIONS TO OWNERS AND LESSEES OF REAL PROPERTY AND PARENTS OF SCHOOL
CHILDREN BECAUSE THE EXCLUSION OF OTHERWISE QUALIFIED VOTERS WAS NOT
SHOWN TO BE NECESSARY TO PROMOTE A COMPELLING STATE INTEREST.  THIS
RULING, BY ITS TERMS APPLICABLE TO ELECTIONS OF PUBLIC OFFICIALS, WAS
EXTENDED TO ELECTIONS FOR THE APPROVAL OF REVENUE BONDS TO FINANCE
LOCAL IMPROVEMENTS IN CIPRIANO V. CITY OF HOUMA, 395 U.S. 701 (1969). 
OUR DECISION IN CIPRIANO DID NOT, HOWEVER, REACH THE QUESTION NOW
PRESENTED FOR DECISION:  DOES THE FEDERAL CONSTITUTION PERMIT A STATE
TO RESTRICT TO REAL PROPERTY TAXPAYERS THE VOTE IN ELECTIONS TO APPROVE
THE ISSUANCE OF GENERAL OBLIGATION BONDS? 

THIS QUESTION ARISES IN THE FOLLOWING FACTUAL SETTING:  ON JUNE 10,
1969, THE CITY OF PHOENIX, ARIZONA, HELD AN ELECTION TO AUTHORIZE THE
ISSUANCE OF $60,450,000 IN GENERAL OBLIGATION BONDS AS WELL AS CERTAIN
REVENUE BONDS.  UNDER ARIZONA LAW, PROPERTY TAXES WERE TO BE LEVIED TO
SERVICE THIS INDEBTEDNESS, ALTHOUGH THE CITY WAS LEGALLY PRIVILEGED TO
USE OTHER REVENUES FOR THIS PURPOSE.  /1/  THE GENERAL OBLIGATION BONDS
WERE TO BE ISSUED TO FINANCE VARIOUS MUNICIPAL IMPROVEMENTS, WITH THE
LARGEST AMOUNTS TO GO FOR THE CITY SEWER SYSTEM, PARKS AND PLAYGROUNDS,
POLICE AND PUBLIC SAFETY BUILDINGS, AND LIBRARIES.  PURSUANT TO ARIZONA
CONSTITUTIONAL AND STATUTORY PROVISIONS, /2/  ONLY OTHERWISE QUALIFIED
VOTERS WHO WERE ALSO REAL PROPERTY TAXPAYERS WERE PERMITTED TO VOTE ON
THESE BOND ISSUES.  ALL OF THE BOND ISSUES SUBMITTED TO THE VOTERS WERE
APPROVED BY A MAJORITY OF THOSE VOTING. 

ON JUNE 16, 1969, SIX DAYS AFTER THE ELECTION IN PHOENIX, THIS COURT
HELD IN CIPRIANO V. CITY OF HOUMA, SUPRA, THAT RESTRICTING THE
FRANCHISE TO PROPERTY TAXPAYERS IN ELECTIONS ON REVENUE BONDS VIOLATED
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THAT RULING
WAS APPLIED TO THE CASE BEFORE THE COURT IN WHICH UNDER LOCAL LAW THE
AUTHORIZATION OF THE REVENUE BONDS WAS NOT YET FINAL WHEN THE CHALLENGE
TO THE ELECTION WAS RAISED IN THE DISTRICT COURT.  ON AUGUST 1, 1969,
APPELLEE KOLODZIEJSKI, A PHOENIX RESIDENT WHO WAS OTHERWISE QUALIFIED
TO VOTE BUT WHO OWNED NO REAL PROPERTY, FILED HER COMPLAINT IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CHALLENGING
THE CONSTITUTIONALITY OF THE RESTRICTION ON THE FRANCHISE IN ARIZONA
BOND ELECTIONS AND ATTACKING THE VALIDITY OF THE JUNE 1969 ELECTION
APPROVING THE PHOENIX BOND ISSUES.  A DISTRICT COURT OF THREE JUDGES
WAS CONVENED.  IN THE DISTRICT COURT, APPELLANTS CONCEDED THAT, UNDER
THIS COURT'S DECISIONS IN CIPRIANO AND KRAMER, SUPRA, THE BOND ELECTION
WAS INVALID WITH REGARD TO THE REVENUE BONDS AND GENERAL OBLIGATION
BONDS AND THEREFORE HELD THAT THE EXCLUSION OF NONPROPERTY-OWNING
VOTERS FROM THE ELECTION ON THE GENERAL OBLIGATION BONDS WAS
UNCONSTITUTIONAL UNDER CIPRIANO AND KRAMER.  BECAUSE THE AUTHORIZATION
OF THE PHOENIX GENERAL OBLIGATION BONDS WAS NOT FINAL ON THE DATE OF
THE CIPRIANO DECISION, THE COURT HELD THE CIPRIANO RULE APPLICABLE AND
DECLARED THE JUNE 10, 1969, BOND ELECTION INVALID.  THE APPELLANTS WERE
ENJOINED FROM TAKING FURTHER ACTION TO ISSUE THE BONDS APPROVED IN THAT
ELECTION.  THE CITY OF PHOENIX AND THE MEMBERS OF THE CITY COUNCIL
APPEALED FROM THE JUDGMENT OF THE DISTRICT COURT WITH RESPECT TO THE
GENERAL OBLIGATION BONDS.  WE NOTED PROBABLE JURISDICTION, 397 U.S. 903
(1970).  WE AFFIRM THE JUDGMENT OF THE DISTRICT COURT BUT DO NOT AGREE
THAT THE RULING IN THIS CASE SHOULD BE RETROACTIVE TO THE DATE OF THE
CIPRIANO DECISION. 

        I 

IN CIPRIANO V. CITY OF HOUMA, SUPRA, THE DENIAL OF THE FRANCHISE TO
NONPROPERTY OWNERS IN ELECTIONS ON REVENUE BONDS WAS HELD TO BE A
DENIAL OF THE FOURTEENTH AMENDMENT RIGHTS OF THE NONPROPERTY OWNERS
SINCE THEY, AS WELL AS PROPERTY OWNERS, ARE SUBSTANTIALLY AFFECTED BY
THE ISSUANCE OF REVENUE BONDS TO FINANCE MUNICIPAL UTILITIES.  IT IS
NOW ARGUED THAT THE RATIONALE OF CIPRIANO DOES NOT RENDER
UNCONSTITUTIONAL THE EXCLUSION OF NONPROPERTY OWNERS FROM VOTING IN
ELECTIONS ON GENERAL OBLIGATION BONDS. 

THE ARGUMENT PROCEEDS ON TWO RELATED FRONTS.  FIRST, IT IS SAID THAT
THE ARIZONA STATUTES REQUIRE THAT PROPERTY TAXES BE LEVIED IN AN AMOUNT
SUFFICIENT TO SERVICE THE GENERAL OBLIGATION BONDS, /3/  THE LAW THUS
EXPRESSLY PLACING A SPECIAL BURDEN ON PROPERTY OWNERS FOR THE BENEFIT
OF THE ENTIRE COMMUNITY.  SECOND, AND MORE GENERALLY, WHEREAS REVENUE
BONDS ARE SECURED BY THE REVENUES FROM THE OPERATION OF PARTICULAR
FACILITIES AND THESE REVENUES MAY BE EARNED FROM BOTH PROPERTY OWNERS
AND NONPROPERTY OWNERS, GENERAL OBLIGATION BONDS ARE SECURED BY THE
GENERAL TAXING POWER OF THE ISSUING MUNICIPALITY.  SINCE MOST
MUNICIPALITIES RELY TO A SUBSTANTIAL EXTENT ON PROPERTY TAX REVENUES
WHICH WILL BE USED TO MAKE DEBT SERVICE PAYMENTS IF OTHER REVENUE
SOURCES PROVE INSUFFICIENT, /4/  GENERAL OBLIGATION BONDS ARE IN EFFECT
A LIEN ON THE REAL PROPERTY SUBJECT TO TAXATION BY THE ISSUING
MUNICIPALITY.  WHATEVER REVENUES ARE ACTUALLY USED TO SERVICE THE
BONDS, AN UNAVOIDABLE POTENTIAL TAX BURDEN IS IMPOSED ONLY ON THOSE WHO
OWN REALTY SINCE THAT PROPERTY CANNOT BE MOVED BEYOND THE REACH OF THE
MUNICIPALITY'S TAXING POWER.  HENCE, ACCORDING TO APPELLANTS, THE STATE
IS JUSTIFIED IN RECOGNIZING THE UNIQUE INTERESTS OF REAL PROPERTY
OWNERS BY ALLOWING ONLY PROPERTY TAXPAYERS TO PARTICIPATE IN ELECTIONS
TO APPROVE THE ISSUANCE OF GENERAL OBLIGATION BONDS. 

CONCEDEDLY, THE CASE OF ELECTIONS TO APPROVE GENERAL OBLIGATION
BONDS WAS NOT DECIDED IN CIPRIANO V. CITY OF HOUMA, SUPRA.  BUT WE HAVE
CONCLUDED THAT THE PRINCIPLES OF THAT CASE, AND OF KRAMER V. UNION FREE
SCHOOL DISTRICT, SUPRA, DICTATE A LIKE RESULT WHERE A STATE EXCLUDES
NONPROPERTY TAXPAYERS FROM VOTING IN ELECTIONS FOR THE APPROVAL OF
GENERAL OBLIGATION BONDS.  THE DIFFERENCES BETWEEN THE INTERESTS OF
PROPERTY OWNERS AND THE INTERESTS OF NONPROPERTY OWNERS ARE NOT
SUFFICIENTLY SUBSTANTIAL TO JUSTIFY EXCLUDING THE LATTER FROM THE
FRANCHISE.  THIS IS SO FOR SEVERAL REASONS. 

FIRST, IT IS UNQUESTIONED THAT ALL RESIDENTS OF PHOENIX, PROPERTY
OWNERS AND NONPROPERTY OWNERS ALIKE, HAVE A SUBSTANTIAL INTEREST IN THE
PUBLIC FACILITIES AND THE SERVICES AVAILABLE IN THE CITY AND WILL BE
SUBSTANTIALLY AFFECTED BY THE ULTIMATE OUTCOME OF THE BOND ELECTION AT
ISSUE IN THIS CASE.  PRESUMPTIVELY, WHEN ALL CITIZENS ARE AFFECTED IN
IMPORTANT WAYS BY A GOVERNMENTAL DECISION SUBJECT TO A REFERENDUM, THE
CONSTITUTION DOES NOT PERMIT WEIGHTED VOTING OR THE EXCLUSION OF
OTHERWISE QUALIFIED CITIZENS FROM THE FRANCHISE.  ARIZONA NEVERTHELESS
EXCLUDES NONPROPERTY OWNERS FROM PARTICIPATING IN BOND ELECTIONS AND
VESTS IN THE MAJORITY OF INDIVIDUAL PROPERTY OWNERS VOTING IN THE
ELECTION THE POWER TO APPROVE OR DISAPPROVE FACILITIES THAT THE
MUNICIPAL GOVERNMENT HAS DETERMINED SHOULD BE FINANCED BY ISSUING
GENERAL OBLIGATION BONDS.  PLACING SUCH POWER IN PROPERTY OWNERS ALONE
CAN BE JUSTIFIED ONLY BY SOME OVERRIDING INTEREST OF THOSE OWNERS THAT
THE STATE IS ENTITLED TO RECOGNIZE. 

SECOND, ALTHOUGH ARIZONA LAW OSTENSIBLY CALLS FOR THE LEVY OF REAL
PROPERTY TAXES TO SERVICE GENERAL OBLIGATION BONDS, OTHER REVENUES ARE
LEGALLY AVAILABLE FOR THIS PURPOSE.  ACCORDING TO THE PARTIES'
STIPULATION IN THIS CASE, IT IS ANTICIPATED WITH RESPECT TO THE INSTANT
BONDS, AS HAS BEEN TRUE IN THE PAST, THAT MORE THAN HALF OF THE DEBT
SERVICE REQUIREMENTS WILL BE SATISFIED NOT FROM REAL PROPERTY TAXES BUT
FROM REVENUES FROM OTHER LOCAL TAXES PAID BY NONPROPERTY OWNERS AS WELL
AS THOSE WHO OWN REAL PROPERTY.  /5/  NOT ONLY DO THOSE PERSONS
EXCLUDED FROM THE FRANCHISE HAVE A GREAT INTEREST IN APPROVING OR
DISAPPROVING MUNICIPAL IMPROVEMENTS, BUT THEY WILL ALSO CONTRIBUTE, AS
DIRECTLY AS PROPERTY OWNERS, TO THE SERVICING OF THE BONDS BY THE
PAYMENT OF TAXES TO BE USED FOR THIS PURPOSE. 

THIRD, THE JUSTIFICATION FOR RESTRICTING THE FRANCHISE TO THE
PROPERTY OWNERS WOULD SEEM TO BE STRONGEST IN THE CASE OF A
MUNICIPALITY WHICH, UNLIKE PHOENIX, LOOKS ONLY TO PROPERTY TAX REVENUES
FOR SERVICING GENERAL OBLIGATION BONDS.  BUT EVEN IN SUCH A CASE THE
JUSTIFICATION WOULD BE INSUFFICIENT.  PROPERTY TAXES MAY BE PAID
INITIALLY BY PROPERTY OWNERS, BUT A SIGNIFICANT PART OF THE ULTIMATE
BURDEN OF EACH YEAR'S TAX ON RENTAL PROPERTY WILL VERY LIKELY BE BORNE
BY THE TENANT RATHER THAN THE LANDLORD SINCE, AS THE PARTIES ALSO
STIPULATED IN THIS CASE, THE LANDLORD WILL TREAT THE PROPERTY TAX AS A
BUSINESS EXPENSE AND NORMALLY WILL BE ABLE TO PASS ALL OR A LARGE PART
OF THIS COST ON TO THE TENANTS IN THE FORM OF HIGHER RENT.  /6/  SINCE
MOST CITY RESIDENTS NOT OWNING THEIR OWN HOMES ARE LESSEES OF DWELLING
UNITS, VIRTUALLY ALL RESIDENTS SHARE THE BURDEN OF PROPERTY TAXES
IMPOSED AND USED TO SERVICE GENERAL OBLIGATION BONDS.  MOREOVER,
PROPERTY TAXES ON COMMERCIAL PROPERTY, /7/  MUCH OF WHICH IS OWNED BY
CORPORATIONS HAVING NO VOTE, WILL BE TREATED AS A COST OF DOING
BUSINESS AND WILL NORMALLY BE REFLECTED IN THE PRICES OF GOODS AND
SERVICES PURCHASED BY NONPROPERTY OWNERS AND PROPERTY OWNERS ALIKE. 

WHILE IN THEORY THE EXPECTED FUTURE INCOME FROM REAL PROPERTY, AND
HENCE PROPERTY VALUES IN A MUNICIPALITY, MAY DEPEND IN PART ON THE
PREDICTED FUTURE LEVELS OF PROPERTY TAXES, /8/  THE ACTUAL IMPACT OF AN
INCREASE IN PROPERTY TAXES IS PROBLEMATICAL.  /9/  MOREOVER, TO THE
EXTENT THAT PROPERTY VALUES ARE DIRECTLY AFFECTED BY THE ADDITIONAL
POTENTIAL TAX BURDEN ENTAILED IN THE BOND ISSUE, ANY ADVERSE EFFECT
WOULD NORMALLY BE OFFSET AT LEAST IN SUBSTANTIAL PART BY THE FAVORABLE
EFFECTS ON PROPERTY VALUES OF THE IMPROVEMENTS TO BE FINANCED BY THE
BOND ISSUE.  /10/ 

IT IS TRUE THAT A GENERAL OBLIGATION BOND MAY BE LOOSELY DESCRIBED
AS A "LIEN" ON THE PROPERTY WITHIN THE JURISDICTION OF THE MUNICIPALITY
IN THE SENSE THAT THE ISSUER UNDERTAKES TO LEVY SUFFICIENT TAXES TO
SERVICE THE BOND.  IN THEORY, IF THE ECONOMY OF THE ISSUING CITY WERE
TO COLLAPSE, THE LEVY OF SUFFICIENTLY HIGH PROPERTY TAXES ON PROPERTY
PRODUCING LITTLE OR NO INCOME MIGHT RESULT IN SOME CASES IN DEFAULTS,
FORECLOSURES, AND TAX SALES.  NOTHING BEFORE US, HOWEVER, INDICATES
THAT THE POSSIBILITY OF FUTURE FORECLOSURES TO MEET BOND OBLIGATIONS
SIGNIFICANTLY AFFECTS CURRENT REAL ESTATE VALUES OR THE ABILITY OF THE
CONCERNED PROPERTY OWNER TO LIQUIDATE HIS HOLDINGS TO AVOID THE RISK OF
THOSE FUTURE DIFFICULTIES; THE PRICE OF REAL ESTATE APPEARS TO BE MORE
A FUNCTION OF THE HEALTH OF THE LOCAL ECONOMY THAN A REFLECTION OF THE
LEVEL OF PROPERTY TAXES IMPOSED TO FINANCE MUNICIPAL IMPROVEMENTS.  IN
ANY EVENT, WE ARE NOT CONVINCED THAT THE RISK OF FUTURE ECONOMIC
COLLAPSE THAT MIGHT RESULT IN BOND OBLIGATIONS BECOMING AN UNSHIFTABLE,
UNSHARABLE BURDEN ON PROPERTY OWNERS IS SUFFICIENTLY REAL OR
SUBSTANTIAL TO JUSTIFY DENYING THE VOTE IN A CURRENT BOND ELECTION TO
ALL THOSE NONPROPERTY OWNERS WHO HAVE A SIGNIFICANT INTEREST IN THE
FACILITIES TO BE FINANCED, WHO ARE NOW INDIRECTLY SHARING THE PROPERTY
TAX BURDEN, AND WHO WILL BE PAYING OTHER 

WE THUS CONCLUDE THAT, ALTHOUGH OWNERS OF REAL PROPERTY HAVE
INTEREST SOMEWHAT DIFFERENT FROM THE INTERESTS OF NONPROPERTY OWNERS IN
THE ISSUANCE OF GENERAL OBLIGATION BONDS, THERE IS NO BASIS FOR
CONCLUDING THAT NONPROPERTY OWNERS ARE SUBSTANTIALLY LESS INTERESTED IN
THE ISSUANCE OF THESE SECURITIES THAN ARE PROPERTY OWNERS.  THAT THERE
IS NO ADEQUATE REASON TO RESTRICT THE FRANCHISE ON THE ISSUANCE OF
GENERAL OBLIGATION BONDS TO PROPERTY OWNERS IS FURTHER EVIDENCED BY THE
FACT THAT ONLY 14 STATES NOW RESTRICT THE FRANCHISE IN THIS WAY; /11/
MOST STATES FIND IT POSSIBLE TO PROTECT PROPERTY OWNERS FROM EXCESSIVE
PROPERTY TAX BURDENS BY MEANS OTHER THAN RESTRICTING THE FRANCHISE TO
PROPERTY OWNERS.  THE STATES NOW ALLOWING ALL QUALIFIED VOTERS TO VOTE
IN GENERAL OBLIGATION BOND ELECTIONS DO NOT APPEAR TO HAVE BEEN
SIGNIFICANTLY LESS SUCCESSFUL IN PROTECTING PROPERTY VALUES AND IN
SOUNDLY FINANCING THEIR MUNICIPAL IMPROVEMENTS.  NOR HAVE WE BEEN SHOWN
THAT THE 14 STATES NOW RESTRICTING THE FRANCHISE HAVE UNIQUE PROBLEMS
THAT MAKE IT NECESSARY TO LIMIT THE VOTE TO PROPERTY OWNERS.  WE MUST
THEREFORE AFFIRM THE DISTRICT COURT'S DECLARATORY JUDGMENT THAT THE
CHALLENGED PROVISIONS OF THE ARIZONA CONSTITUTION AND STATUTES, AS
APPLIED TO EXCLUDE NONPROPERTY OWNERS FROM ELECTIONS FOR THE APPROVAL
OF THE ISSUANCE OF GENERAL OBLIGATION BONDS, VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION. 

        II 

IN VIEW OF THE FACT THAT OVER THE YEARS MANY GENERAL OBLIGATION
BONDS HAVE BEEN ISSUED ON THE GOOD-FAITH ASSUMPTION THAT RESTRICTION OF
THE FRANCHISE IN BOND ELECTIONS WAS NOT PROHIBITED BY THE FEDERAL
CONSTITUTION, IT WOULD BE UNJUSTIFIABLY DISRUPTIVE TO GIVE OUR DECISION
IN THIS CASE FULL RETROACTIVE EFFECT.  WE THEREFORE ADOPT A RULE
SIMILAR TO THAT EMPLOYED WITH RESPECT TO THE APPLICABILITY OF THE
CIPRIANO DECISION:  OUR DECISION IN THIS CASE WILL APPLY ONLY TO
AUTHORIZATIONS FOR GENERAL OBLIGATION BONDS THAT ARE NOT FINAL AS OF
JUNE 23, 1970, THE DATE OF THIS DECISION.  IN THE CASE OF STATES
AUTHORIZING CHALLENGES TO BOND ELECTIONS WITHIN A DEFINITE PERIOD, ALL
ELECTIONS HELD PRIOR TO THE DATE OF THIS DECISION WILL NOT BE AFFECTED
BY THIS DECISION UNLESS A CHALLENGE ON THE GROUNDS SUSTAINED BY THIS
DECISION HAS BEEN OR IS BROUGHT WITHIN THE PERIOD SPECIFIED BY STATE
LAW.  IN THE CASE OF STATES, INCLUDING APPARENTLY ARIZONA, /12/  THAT
DO NOT HAVE A WELL-DEFINED PERIOD FOR BRINGING CHALLENGES TO BOND
ELECTIONS, ALL ELECTIONS HELD PRIOR TO THE DATE OF THIS DECISION WILL
NOT BE OPEN TO CHALLENGE ON THE BASIS OF OUR RULING IN THIS CASE.  IN
ADDITION, IN STATES WITH NO DEFINITE CHALLENGE PERIOD, THE VALIDITY OF
GENERAL OBLIGATION BONDS THAT HAVE BEEN ISSUED BEFORE THIS DECISION AND
PRIOR TO THE COMMENCEMENT OF AN ACTION CHALLENGING THE ISSUANCE ON THE
GROUNDS SUSTAINED BY THIS DECISION WILL NOT BE AFFECTED BY THE DECISION
IN THIS CASE.  SINCE APPELLEE IN THIS CASE BROUGHT HER CONSTITUTIONAL
CHALLENGE TO THE PHOENIX ELECTION PRIOR TO THE DATE OF OUR DECISION IN
THIS CASE AND NO BONDS HAVE BEEN ISSUED PURSUANT TO THAT ELECTION, OUR
DECISION APPLIES TO THE ELECTION INVOLVED IN THIS CASE.  THE DISTRICT
COURT WAS THEREFORE CORRECT IN HOLDING THAT THE JUNE 10, 1969, BOND
ELECTION IN PHOENIX WAS CONSTITUTIONALLY INVALID AND IN ENJOINING THE
ISSUANCE OF BONDS PURSUANT TO THE APPROVAL OBTAINED IN THAT ELECTION. 

              AFFIRMED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  THE RELEVANT ARIZONA STATUTE PROVIDES AS FOLLOWS: 

"A.  AFTER THE BONDS ARE ISSUED, THE GOVERNING BODY OR BOARD SHALL
ENTER UPON ITS MINUTES A RECORD OF THE BONDS SOLD, THEIR NUMBERS AND
DATES, AND SHALL ANNUALLY LEVY AND CAUSE TO BE COLLECTED A TAX, AT THE
SAME TIME AND IN THE SAME MANNER AS OTHER TAXES ARE LEVIED AND
COLLECTED UPON ALL TAXABLE PROPERTY IN SUCH POLITICAL SUBDIVISION,
SUFFICIENT TO PAY THE INTEREST ON THE BONDS WHEN DUE, AND SHALL
LIKEWISE ANNUALLY LEVY A TAX SUFFICIENT TO REDEEM THE BONDS WHEN THEY
MATURE. 

"B.  MONIES DERIVED FROM THE LEVY OF THE TAX WHEN COLLECTED SHALL
CONSTITUTE A FUND FOR PAYMENT OF INTEREST AND THE BONDS.  THE FUND
SHALL BE KEPT SEPARATELY AND SHALL BE KNOWN AS THE 'INTEREST FUND' AND
'REDEMPTION FUND.'"  ARIZ. REV. STAT. ANN. SEC. 35-458 (1956). 

IN ALLISON V. CITY OF PHOENIX, 44 ARIZ. 66, 33 P.2D 927 (1934), THE
ARIZONA SUPREME COURT RULED THAT THE PREDECESSOR OF THIS SECTION
PERMITTED AN ISSUING MUNICIPALITY TO USE OTHER FUNDS FOR DEBT SERVICE
IF SUCH FUNDS WERE AVAILABLE.  IN THIS CASE THE PARTIES HAVE STIPULATED
THAT FOR THE 1969-1970 FISCAL YEAR $3,244,773 OF THE CITY'S TOTAL
GENERAL OBLIGATION DEBT SERVICE REQUIREMENT OF $5,594,937 WAS MET FROM
SOURCES OTHER THAN AD VALOREM PROPERTY TAXES AND THAT THIS
APPORTIONMENT OF DEBT SERVICE BURDEN IS TYPICAL OF RECENT YEARS. 

/2/  ARIZ. CONST., ART. 7, SEC. 13, ART. 9, SEC. 8; ARIZ. REV. STAT.
ANN. SECS. 9-523, 35-452 (1956), SEC. 35-455 (SUPP. 1969). 

/3/  SEE N. 1, SUPRA. 

/4/  IN 1967-1968, PROPERTY TAXES YIELDED $26.835 BILLION
(APPROXIMATELY 86%) OF THE $31.171 BILLION RAISED IN TAXES BY LOCAL
GOVERNMENTS.  U.S. DEPT. OF COMMERCE, BUREAU OF THE CENSUS,
GOVERNMENTAL FINANCES IN 1967-68, P. 20 (1969). 

/5/  FOR THE 1969-1970 FISCAL YEAR, THE CITY OF PHOENIX UTILIZED
REVENUES OTHER THAN REVENUES FROM PROPERTY TAXES TO MEET OVER 55% OF
ITS GENERAL OBLIGATION DEBT SERVICE REQUIREMENTS.  SEE N. 1, SUPRA. 

/6/  IN THIS CASE THE PARTIES STIPULATED THAT "THE AMOUNT OF MONEY
PAID AS REAL PROPERTY TAXES IS A COST OF DOING BUSINESS OF THE
(APPELLEE'S) LANDLORD AND AS SUCH HAS A MATERIAL BEARING ON THE COST OF
THE (APPELLEE'S) RENTAL PAYMENTS." 

THE EXTENT TO WHICH A LANDLORD CAN PASS ALONG AN INCREASE IN
PROPERTY TAXES TO HIS TENANTS GENERALLY DEPENDS ON HOW CHANGES IN RENT
LEVELS IN THE MUNICIPALITY AFFECT THE AMOUNT OF RENTAL PROPERTY
DEMANDED-- THE LESS RESPONSIVE THE DEMAND FOR RENTAL PROPERTY TO
CHANGES IN RENT LEVELS, THE LARGER THE PROPORTION OF PROPERTY TAXES
THAT WILL ULTIMATELY BE BORNE BY TENANTS.  SEE C. SHOUP.  PUBLIC
FINANCE 385-390 (1969); D. NETZER, ECONOMICS OF THE PROPERTY TAX 32-40
(1966); SIMON, THE INCIDENCE OF A TAX ON URBAN REAL PROPERTY, IN
READINGS IN THE ECONOMICS OF TAXATION 416 (PUBLISHED BY THE AMERICAN
ECONOMIC ASSN. 1959). 

/7/  IN 1957, ABOUT 28 1/2% OF REAL PROPERTY TAXES PAID TO LOCAL
GOVERNMENTS IN THE UNITED STATES WERE PAID ON COMMERCIAL AND INDUSTRIAL
PROPERTIES.  SEE NETZER, SUPRA, N. 6, AT 19. 

/8/  IN THEORY, THE VALUE OF PROPERTY IS THE PRESENT VALUE OF THE
EXPECTED INCOME TO BE EARNED FROM THE PROPERTY IN THE FUTURE; IN THE
CASE OF OWNER-OCCUPIED RESIDENCES, THIS "INCOME" IS THE SATISFACTION
WHICH THE HOMEOWNERS DERIVE FROM THE ENJOYMENT OF THEIR RESIDENCES. 
PROPERTY TAXES ON RENTAL PROPERTY WILL REDUCE THE EXPECTED FUTURE
EARNINGS FROM THE PROPERTY TO THE EXTENT THAT IT IS EXPECTED THAT THE
TAXES CANNOT BE PASSED ON TO TENANTS IN THE FORM OF HIGHER RENT.  SEE
N. 6, SUPRA.  FOR OWNER-OCCUPIERS THE PROPERTY TAX WILL REDUCE THE
EXPECTED "INCOME" NET OF COSTS AND WILL THUS REDUCE THE VALUE OF THEIR
PROPERTY.  FOR A FURTHER DISCUSSION OF THIS "CAPITALIZATION" OF
UNSHIFTABLE FUTURE PROPERTY TAXES, SEE H. NEWMAN, AN INTRODUCTION TO
PUBLIC FINANCE 262 (1968); SHOUP, SUPRA, N. 6, AT 442-443; NETZER,
SUPRA, N. 6, AT 34-36; J. JENSEN, PROPERTY TAXATION IN THE UNITED
STATES 63-75 (1931). 

/9/  THE EMPIRICAL EVIDENCE ON CAPITALIZATION OF UNSHIFTED PROPERTY
TAXES HAS BEEN DESCRIBED AS "MOST UNSATISFACTORY."  SEE NETZER, SUPRA,
N. 6, AT 34-35; SEE ALSO SHOUP, SUPRA, N. 6, AT 443. 

/10/  SEE NETZER, SUPRA, N. 6, AT 34. 

/11/  IT APPEARS FROM THE BRIEFS FILED IN THIS CASE THAT 13 STATES
BESIDES ARIZONA RESTRICT THE FRANCHISE TO PROPERTY OWNERS OR PROPERTY
TAXPAYERS IN SOME OR ALL GENERAL OBLIGATION BOND ELECTIONS:

ALASKA (ALASKA STAT. SEC. 07.30.010(B) (SUPP. 1969)); COLORADO
(COLO. CONST., ART XI, SECS. 6, 7, AND 8); FLORIDA (FLA. CONST., ART.
7, SEC. 12); IDAHO (IDAHO CODE ANN. SEC. 31-1905 (1963), SEC. 33-404
(SUPP. 1969), SEC. 50-1026 (1967); LOUISIANA (LA. CONST., ART. 14, SEC.
14(A); MICHIGAN (MICH. CONST., ART. II, SEC. 6); MONTANA (MONT. CONST.,
ART. IX, SEC. 2, ART. XIII, SEC. 5; MONT. REV. CODES ANN. SEC. 11-2310
(1968), SEC. 75-3912 (1962); NEW MEXICO (N.M. CONST., ART. IX, SECS.
10, 11, AND 12); NEW YORK (N.Y. TOWN LAW SEC. 84 (1965); N.Y. VILLAGE
LAW SEC. 4-402 (1966)); OKLAHOMA (OKLA. CONST., ART. X, SEC. 27); RHODE
ISLAND (R.I. CONST. AMDT. 29, SEC. 2); TEXAS (TEX. CONST., ART. 6, SEC.
3A); UTAH (UTAH CONST., ART. XIV, SEC. 3). 

/12/  ARIZ. REV. STAT. ANN. SEC. 16-1202 (SUPP. 1969) AND SEC. 16
1204 (1956) PROVIDES THAT ELECTION CONTEST SUITS GENERALLY MUST BE
BROUGHT BY "ELECTORS" WITHIN FIVE DAYS AFTER COMPLETION OF THE CANVASS
AND DECLARATION OF THE RESULT OF AN ELECTION.  UNDER THE ARIZONA
SUPREME COURT'S DECISION IN MORGAN V. BOARD OF SUPERVISORS, 67 ARIZ.
133, 192 P.2D 236 (1948), IT IS UNCLEAR WHETHER SUITS BROUGHT AFTER THE
EXPIRATION OF THE FIVE-DAY PERIOD TO CHALLENGE A BOND ELECTION ON
CONSTITUTIONAL GROUNDS WOULD IN ALL CASES BE BARRED.  THE DISTRICT
COURT FOUND THERE WAS NO BAR TO SUIT IN THIS CASE. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND IN PART I OF THE
OPINION OF THE COURT. 

MR. JUSTICE STEWART, WHOM THE CHIEF JUSTICE AND MR. JUSTICE HARLAN
JOIN, DISSENTING. 

IF THIS CASE REALLY INVOLVED AN "ELECTION," THAT IS, A CHOICE BY
POPULAR VOTE OF CANDIDATES FOR PUBLIC OFFICE UNDER A SYSTEM OF
REPRESENTATIVE DEMOCRACY, THEN OUR FRAME OF REFERENCE WOULD NECESSARILY
HAVE TO BE REYNOLDS V. SIMS, 377 U.S. 533, AND ITS PROGENY.  FOR,
RIGHTLY OR WRONGLY, THE COURT HAS SAID THAT IN CASES WHERE PUBLIC
OFFICIALS WITH LEGISLATIVE OR OTHER GOVERNMENTAL POWER ARE TO BE
ELECTED BY THE PEOPLE, THE CONSTITUTION REQUIRES THAT THE ELECTORAL
FRANCHISE MUST GENERALLY REFLECT A REGIME OF POLITICAL SUFFRAGE BASED
UPON "ONE MAN, ONE VOTE."  RECENT EXAMPLES OF THAT CONSTITUTIONAL
DOCTRINE ARE THE COURT'S DECISIONS IN KRAMER V. UNION FREE SCHOOL
DISTRICT, 395 U.S. 621, INVOLVING THE FRANCHISE TO VOTE FOR THE MEMBERS
OF A SCHOOL BOARD; AND HADLEY V. JUNIOR COLLEGE DISTRICT, 397 U.S. 50,
INVOLVING THE APPORTIONMENT OF VOTING DISTRICTS FOR THE ELECTION OF THE
TRUSTEES OF A STATE JUNIOR COLLEGE. 

WHETHER OR NOT ONE ACCEPTS THE CONSTITUTIONAL DOCTRINE EMBODIED IN
THOSE DECISIONS, THEY ARE OF LITTLE RELEVANCE HERE.  FOR IN THIS CASE
NOBODY HAS CLAIMED THAT THE MEMBERS OF THE CITY COUNCIL OF PHOENIX,
ARIZONA-- THE INDIVIDUAL APPELLANTS HERE-- WERE ELECTED IN ANY WAY
OTHER THAN ON A ONE MAN, ONE VOTE BASIS, OR THAT THEY DO NOT FULLY AND
FAIRLY REPRESENT THE ENTIRE ELECTORATE OF THE MUNICIPALITY.  AND IT WAS
THESE COUNCILMEN WHO INITIATED THE PROGRAM FOR BORROWING MONEY SO THAT
THE CITY MIGHT HAVE A SEWER SYSTEM, PARKS AND PLAYGROUNDS, POLICE AND
PUBLIC SAFETY BUILDINGS, A NEW LIBRARY, AND OTHER MUNICIPAL
IMPROVEMENTS.  HAVING MADE THAT INITIAL DECISION, THE COUNCILMEN
SUBMITTED THE BORROWING AND CONSTRUCTION PROGRAM FOR FINAL APPROVAL BY
THOSE UPON WHOM THE BURDEN OF THE MUNICIPAL BONDED INDEBTEDNESS WOULD
LEGALLY FALL-- THE PROPERTY OWNERS OF THE CITY.  THESE PROPERTY OWNERS
APPROVED THE ENTIRE PROGRAM BY A MAJORITY VOTE.  YET THE COURT TODAY
SAYS THE EQUAL PROTECTION CLAUSE PREVENTS THE CITY OF PHOENIX FROM
BORROWING THE MONEY TO BUILD THE PUBLIC IMPROVEMENTS THAT THE COUNCIL
AND THE PROPERTY OWNERS OF THE CITY HAVE BOTH APPROVED.  I CANNOT
BELIEVE THAT THE UNITED STATES CONSTITUTION LAYS SUCH A HEAVY HAND UPON
THE INITIATIVE AND INDEPENDENCE OF PHOENIX, ARIZONA, OR ANY OTHER CITY
IN OUR NATION. 

IN CIPRIANO V. CITY OF HOUMA, 395 U.S. 701, THE COURT HELD
UNCONSTITUTIONAL A LOUISIANA LAW THAT PERMITTED ONLY PROPERTY OWNERS TO
VOTE ON THE QUESTION OF APPROVING BONDS THAT WERE TO BE FINANCED
EXCLUSIVELY FROM THE REVENUES OF MUNICIPALLY OPERATED PUBLIC
UTILITIES.  I AGREED WITH THAT DECISION, BECAUSE THE STATE HAD CREATED
A WHOLLY IRRELEVANT VOTING CLASSIFICATION.  ID., AT 707 (BLACK AND
STEWART, JJ., CONCURRING IN THE JUDGMENT).  AS THE COURT THERE NOTED: 

     "THE REVENUE BONDS ARE TO BE PAID ONLY FROM THE OPERATIONS OF

  THE UTILITIES; THEY ARE NOT FINANCED IN ANY WAY BY PROPERTY TAX

  REVENUE.  PROPERTY OWNERS, LIKE NONPROPERTY OWNERS, USE THE

  UTILITIES AND PAY THE RATES; HOWEVER, THE IMPACT OF THE REVENUE

  BOND ISSUE ON THEM IS UNCONNECTED TO THEIR STATUTE AS PROPERTY

  TAXPAYERS.  INDEED, THE BENEFITS AND BURDENS OF THE BOND ISSUE

  FALL INDISCRIMINATELY ON PROPERTY OWNER AND NONPROPERTY OWNER

ALIKE."  ID., AT 705. 

THE CASE BEFORE US BEARS ONLY A SUPERFICIAL RESEMBLANCE TO CIPRIANO,
FOR WE DEAL HERE, NOT WITH INCOME-PRODUCING UTILITIES THAT CAN PAY FOR
THEMSELVES, BUT WITH MUNICIPAL IMPROVEMENTS THAT MUST BE PAID FOR BY
THE TAXPAYERS.  UNDER ARIZONA LAW A CITY'S GENERAL BONDED INDEBTEDNESS
EFFECTIVELY OPERATES AS A LIEN ON ALL TAXABLE REAL ESTATE LOCATED
WITHIN THE CITY'S BORDERS.  DURING THE ENTIRE LIFE OF THE BONDS THE
PRIVATELY OWNED REAL PROPERTY IN THE CITY IS BURDENED BY THE CITY'S
PLEDGE-- AND STATUTORY OBLIGATION-- TO USE ITS REAL ESTATE TAXING POWER
FOR THE PURPOSE OF REPAYING BOTH INTEREST AND PRINCIPAL UNDER THE BOND
OBLIGATION.  /1/  WHETHER UNDER THESE CIRCUMSTANCES ARIZONA COULD
CONSTITUTIONALLY CONFER UPON ITS MUNICIPAL GOVERNING BODIES EXCLUSIVE
AND ABSOLUTE POWER TO INCUR GENERAL BONDED INDEBTEDNESS WITHOUT LIMIT
AT THE EXPENSE OF REAL PROPERTY OWNERS IS A QUESTION THAT IS NOT BEFORE
US.  FOR THE STATE HAS CHOSEN A DIFFERENT POLICY, REFLECTED IN BOTH ITS
CONSTITUTIONAL AND STATUTORY LAW.  /2/  IT HAS TOLD THE GOVERNING
BODIES OF ITS CITIES THAT WHILE THEY ARE FREE TO PLAN AND PROPOSE
CAPITAL IMPROVEMENTS, GENERAL OBLIGATION BONDS CANNOT BE VALIDLY ISSUED
TO FINANCE THEM WITHOUT THE APPROVAL OF A MAJORITY OF THOSE UPON WHOM
THE WEIGHT OF REPAYING THOSE BONDS WILL LEGALLY FALL. 

THIS IS NOT THE INVIDIOUS DISCRIMINATION THAT THE EQUAL PROTECTION
CLAUSE CONDEMNS, BUT AN ENTIRELY RATIONAL PUBLIC POLICY.  I WOULD
REVERSE THE JUDGMENT, BECAUSE I CANNOT HOLD THAT THE CONSTITUTION
DENIES THE CITY OF PHOENIX THE PUBLIC IMPROVEMENTS THAT ITS COUNCIL AND
ITS TAXPAYERS HAVE ENDORSED.  /3/ 

/1/  ARIZ. REV. STAT. ANN. SEC. 35-458 PROVIDES:  "AFTER THE BONDS
ARE ISSUED, THE GOVERNING BODY OR BOARD . . . SHALL ANNUALLY LEVY AND
CAUSE TO BE COLLECTED A TAX . . . UPON ALL TAXABLE PROPERTY IN SUCH
POLITICAL SUBDIVISION, SUFFICIENT TO PAY THE INTEREST ON THE BONDS WHEN
DUE, AND . . . TO REDEEM THE BONDS WHEN THEY MATURE." 

IN ALLISON V. CITY OF PHOENIX, 44 ARIZ. 66, 33 P.2D 927 (1934), THE
ARIZONA SUPREME COURT HELD THAT IF A CITY HAS MONEY AVAILABLE FROM
ANOTHER SOURCE "IT MAY FROM TIME TO TIME BE TRANSFERRED TO THE
INETEREST AND REDEMPTION FUNDS CREATED BY THE STATUTE . . . ."  44
ARIZ.,AT 77, 33 P.2D AT 931.  THE COURT MADE CLEAR, HOWEVER, THAT THE
PREDECESSOR OF ARIZ. REV. STAT. ANN. SEC. 35-458 "IS MANDATORY AND
BINDING UPON ALL PARTIES MENTIONED THEREIN, AND THAT THEY MUST LEVY AND
CAUSE TO BE COLLECTED A TAX FOR THE PAYMENT OF BONDS ISSUED UNDER SUCH
ARTICLE, IN THE MANNER PROVIDED BY SUCH SECTION."  ID., AT 74, 33 P.2D,
AT 930.  THE USE OF EXCISE TAXES TO REPAY GENERAL OBLIGATION BONDS IS
THUS OPTIONAL, BUT THE IMPOSITION OF AD VALOREM TAXES FOR THESE
PURPOSES IS MANDATORY. 

TAXES IMPOSED ON REAL PROPERTY IN ARIZONA BECOME A LIEN ON THAT
PROPERTY.  ARIZ. REV. STAT. ANN. SEC. 42-312. 

/2/  THE CONSTITUTIONAL AND STATUTORY PROVISIONS APPLICABLE TO ALL
BOND AUTHORIZATION ELECTIONS OF INCORPORATED CITIES AND TOWNS IN THE
STATE OF ARIZONA LIMIT THE RIGHT TO VOTE IN SUCH ELECTIONS TO PERSONS
WHO ARE QUALIFIED ELECTORS AND WHO ARE ALSO REAL PROPERTY TAXPAYERS. 
ARIZ. CONST., ART. 7, SEC. 13; ART. 9, SEC. 8.  ARIZ. REV. STAT. ANN.
SEC. 9-523 AND SEC. 35-455.  THESE CONSTITUTIONAL AND STATUTORY
PROVISIONS APPLY TO ALL POLITICAL SUBDIVISIONS WITHIN THE STATE OF
ARIZONA, AND NOT JUST TO CITIES AND TOWNS.     /3/  SINCE THE COURT'S
CONTRARY VIEW TODAY PREVAILS, I ADD THAT UPON THAT PREMISE THE CHIEF
JUSTICE AND I AGREE WITH PART II OF THE COURT'S OPINION, AND THAT MR.
JUSTICE HARLAN ALSO JOINS IN PART II OF THE COURT'S OPINION, SUBJECT,
HOWEVER, TO THE VIEWS EXPRESSED IN HIS CONCURRING OPINION IN UNITED
STATES V. ESTATE OF DONNELLY, 397 U.S. 286, 295 (1970). 

REX E. LEE ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF
WERE ROBERT J. BACKSTEIN AND ALAN K. POLLEY. 

FRED H. ROSENFELD ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS IVAN ROBINETTE.     BRIEFS OF AMICI CURIAE WERE FILED BY JACK
P. F. GREMILLION, ATTORNEY GENERAL, EDWARD DONALD MOSELEY, HAROLD B.
JUDELL, AND JAMES HUGH MARTIN FOR THE STATE OF LOUISIANA; BY PHILLIP H.
HOLM FOR THE PARISH SCHOOL BOARD OF CADDO PARISH; BY JOHN F. WARD, JR.,
FRED G. BENTON, JR., AND FRED G. BENTON, SR., FOR THE LOUISIANA SCHOOL
BOARDS ASSOCIATION; BY MYLES P. TALLMADGE FOR POUDRE SCHOOL DISTRICT R
1 OF LARIMER COUNTY, COLORADO; AND BY RICHARD H. FRANK FOR ELIZABETH M.
AXTELL ET AL.
..END :













PERKINS V. STANDARD OIL CO., 399 U.S. 222 


       PERKINS V. STANDARD OIL CO. OF CALIFORNIA

 ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

          COURT OF APPEALS FOR THE NINTH CIRCUIT

NO. 1507.  DECIDED JUNE 23, 1970  /1/ 


1.  THE ALLOWANCE IN SEC. 4 OF THE CLAYTON ACT FOR ATTORNEYS' FEES
INCLUDES FEES FOR APPELLATE LEGAL SERVICES RENDERED IN A SUCCESSFULLY
PROSECUTED PRIVATE ANTITRUST ACTION, AND THE AMOUNT OF THOSE FEES
SHOULD IN GENERAL BY INITIALLY FIXED BY THE DISTRICT COURT AFTER A
HEARING. 

2.  FAILURE TO MENTION ATTORNEYS' FEES IN THE COURT'S MANDATE IN
PERKINS V. STANDARD OIL CO., 395 U.S. 642, LEFT THE MATTER OPEN FOR
CONSIDERATION BY THE DISTRICT COURT. 

CERTIORARI GRANTED; NO. 1507, VACATED AND REMANDED TO THE COURT OF
APPEALS; NO. 1556, VACATED AND REMANDED TO THE DISTRICT COURT. 

PER CURIAM. 

FOLLING HIS SUCCESS IN THIS COURT IN PERKINS V. STANDARD OIL CO.,
395 U.S. 642, THE PETITIONER FILED IN THE DISTRICT COURT FOR THE
DISTRICT OF OREGON AN APPLICATION FOR ALLOWANCE OFF ATTORNEYS' FEES,
PURSUANT TO SEC. 4 OF THE CLAYTON ACT, /2/  FOR LEGAL SERVICES
PERFORMED DURING THE APPELLATE STAGES OF THAT LITIGATION, BOTH IN THE
COURT OF APPEALS AND IN THIS COURT.  THE DISTRICT COURT DENIED THE
APPLICATION, RULING THAT SEC. 4 DID NOT AUTHORIZE THE ALLOWANCE OF
ATTORNEYS' FEES FOR SERVICES PERFORMED IN CONNECTION WITH APPELLATE
PROCEEDINGS. 

PETITIONER APPEALED THIS DECISION TO THE COURT OF APPEALS AND
SIMULTANEOUSLY FILED IN THAT COURT TWO SEPARATE APPLICATIONS FOR
ATTORNEYS' FEES FOR LEGAL SERVICES PERFORMED THERE AND IN THIS COURT. 
THE COURT OF APPEALS DENIED THE LATTER APPLICATION, BELIEVING THAT OUR
MANDATE IN PERKINS, BY NOT MENTIONING ATTORNEYS' FEES, WAS INTENDED TO
PRECLUDE AN AWARD OF SUCH FEES. 

THE DISTRICT COURT WAS IN ERROR IN HOLDING THAT SEC. 4 DOES NOT
AUTHORIZE THE AWARD OF COUNSEL FEES FOR LEGAL SERVICES PERFORMED AT THE
APPELLATE STAGES OF A SUCCESSFULLY PROSECUTED PRIVATE ANTITRUST
ACTION.  BOTH THE LANGUAGE AND PURPOSE OF SEC. 4 MAKE THAT CONSTRUCTION
UNTENABLE.  SEE AMERICAN CAN CO. V. LADOGA CANNING CO., 44 F.2D 763,
CERT. DENIED, 282 U.S. 899.  THE AMOUNT OF THE AWARD FOR SUCH SERVICES
SHOULD, AS A GENERAL RULE, BE FIXED IN THE FIRST INSTANCE BY THE
DISTRICT COURT, AFTER HEARING EVIDENCE AS TO THE EXTENT AND NATURE OF
THE SERVICES RENDERED.  SEE, E.G., OSBORN V. SINCLAIR REFINING CO., 207
F.SUPP.  856, 864.  THE COURT OF APPEALS WAS ALSO IN ERROR IN
INTERPRETING OUR MANDATE AS PRECLUDING THE AWARD OF SUCH FEES FOR
SERVICES PERFORMED IN CONNECTION WITH THE LITIGATION IN THIS COURT. 
OUR FAILURE TO MAKE EXPLICIT MENTION IN THE MANDATE OF ATTORNEYS' FEES
SIMPLY LEFT THE MATTER OPEN FOR CONSIDERATION BY THE DISTRICT COURT TO
WHICH THE MANDATE WAS DIRECTED. 

THE PETITIONER FOR CERTIORARI ARE GRANTED AND THE JUDGMENTS ARE
VACATED.  NO. 1556 IS REMANDED TO THE DISTRICT COURT, AND NO. 1507 TO
THE COURT OF APPEALS, FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

/1/  TOGETHER WITH NO. 1556, PERKINS V. STANDARD OIL CO. OF
CALIFORNIA, ON PETITION FOR WRIT OF CERTIORARI TO THE SAME COURT. 

/2/  THAT SECTION PROVIDES IN PERTINENT PART AS FOLLOWS: 

"ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY
REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR IN
ANY DISTRICT COURT OF THE UNITED STATES . . . AND SHALL RECOVER
THREEFOLD THE DAMAGES BY HIM SUSTAINED, AND THE COST OF SUIT, INCLUDING
A REASONABLE ATTORNEY'S FEE."  38 STAT. 731, 15 U.S.C. 15. 
..END :

















COLEMAN V. ALABAMA, 399 U.S. 1 


       COLEMAN ET AL. V. ALABAMA

        CERTIORARI TO THE COURT OF APPEALS OF ALABAMA

        NO. 72.  ARGUED NOVEMBER 18, 1969-- DECIDED JUNE 22, 1970 


PETITIONERS WERE CONVICTED OF ASSAULT WITH INTENT TO MURDER AND THE
ALABAMA COURT OF APPEALS AFFIRMED.  THEY ARGUE THAT (1) THE IN-COURT
IDENTIFICATIONS THAT WERE MADE OF THEM WERE FATALLY TAINTED BY A
PREJUDICIAL STATION-HOUSE LINEUP (WHICH OCCURRED PRIOR TO UNITED STATES
V. WADE, 388 U.S. 218, AND GILBERT V. CALIFORNIA, 388 U.S. 263,
REQUIRING THE EXCLUSION OF SUCH TAINTED IN-COURT IDENTIFICATION
EVIDENCE), AND (2) THAT ALABAMA'S FAILURE TO PROVIDE THEM WITH
APPOINTED COUNSEL AT THE PRELIMINARY HEARING, A "CRITICAL STAGE" OF THE
PROSECUTION, UNCONSTITUTIONALLY DENIED THEM THE ASSISTANCE OF COUNSEL. 
THE VICTIM TESTIFIED THAT, "IN THE CAR LIGHTS" WHILE "LOOKING STRAIGHT
AT HIM," HE SAW THE PETITIONER WHO SHOT HIM AND SAW THE OTHER
PETITIONER "FACE TO FACE."  HE ALSO STATED THAT HE IDENTIFIED THE
GUNMAN AT THE STATION HOUSE BEFORE THE FORMAL LINEUP BEGAN, AND
IDENTIFIED THE OTHER BEFORE HE SPOKE THE WORDS USED BY THE ASSAILANTS. 
THE SOLE PURPOSES OF A PRELIMINARY HEARING UNDER ALABAMA LAW ARE TO
DETERMINE WHETHER THERE IS SUFFICIENT EVIDENCE TO WARRANT PRESENTING
THE CASE TO A GRAND JURY, AND TO FIX BAIL FOR BAILABLE OFFENSES.  THE
TRIAL COURT SCRUPULOUSLY FOLLOWED POINTER V. TEXAS, 380 U.S. 400, WHICH
PROHIBITS THE USE OF TESTIMONY GIVEN AT A PRETRIAL PROCEEDING WHERE THE
ACCUSED DID NOT HAVE THE BENEFIT OF CROSS-EXAMINATION BY AND THROUGH
COUNSEL.  HELD:  THE CONVICTION ARE VACATED AND THE CASE IS REMANDED TO
DETERMINE WHETHER THE DENIAL OF COUNSEL AT THE PRELIMINARY HEARING WAS
HARMLESS ERROR.  PP. 3-20. 

44 ALA.APP.  429, 211 SO.2D 917, VACATED AND REMANDED. 

MR. JUSTICE BRENNAN, JOINED BY MR. JUSTICE DOUGLAS, MR. JUSTICE
WHITE, AND MR. JUSTICE MARSHALL, FOR THE THREE POINTS ENUMERATED
DIRECTLY BELOW, AND BY MR. JUSTICE BLACK, FOR THE THIRD POINT,
CONCLUDED THAT: 

1.  ON THIS RECORD THE TRIAL COURT DID NOT ERR IN FINDING THAT THE
VICTIM'S IN-COURT IDENTIFICATIONS DID NOT STEM FROM A LINEUP PROCEDURE
"SO IMPERMISSIBLY SUGGESTIVE AS TO GIVE RISE TO A VERY SUBSTANTIAL
LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION."  PP. 3-6. 

2.  THE PRELIMINARY HEARING IS A "CRITICAL STAGE" OF ALABAMA'S
CRIMINAL PROCESS AT WHICH THE INDIGENT ACCUSED IS "AS MUCH ENTITLED TO
SUCH AID (OF COUNSEL) . . . AS AT THE TRIAL ITSELF."  POWELL V.
ALABAMA, 287 U.S. 45, 57.  PP. 7-10. 

3.  ALTHOUGH NOTHING THAT OCCURRED AT THE PRELIMINARY HEARING WAS
USED AT THE TRIAL, THE RECORD DOES NOT REVEAL WHETHER PETITIONERS WERE
OTHERWISE PREJUDICED BY ABSENCE OF COUNSEL AT THE HEARING, AND THE
QUESTION WHETHER THE DENIAL OF COUNSEL WAS HARMLESS ERROR SHOULD BE
ANSWERED IN THE FIRST INSTANCE BY THE ALABAMA COURTS.  PP. 10-11. 

MR. JUSTICE BLACK CONCLUDED THAT: 

1.  PETITIONERS HAD A RIGHT TO THE ASSISTANCE OF COUNSEL AT THE
PRELIMINARY HEARING NOT BECAUSE IT IS DEEMED PART OF A "FAIR TRIAL" BY
JUDGES BUT BECAUSE THE SIXTH AMENDMENT ESTABLISHES A RIGHT TO COUNSEL
"(IN ALL CRIMINAL PROSECUTIONS" AND IN ALABAMA THE PRELIMINARY HEARING
IS A DEFINITE PART OR STAGE OF A CRIMINAL PROSECTUION.  PP. 11-13. 

2.  THE TRIAL COURT DID NOT ERR IN PERMITTING COURTROOM
IDENTIFICATION OF PETITIONERS BY THE VICTIM WHO HAD PREVIOUSLY
IDENTIFIED THEM AT THE LINEUP, AS THE REQUIREMENTS OF THE FIFTH AND
SIXTH AMENDMENTS WERE SATISFIED WHEN THE PROSECUTION DECLINED AT TRIAL
TO INTRODUCE THE LINEUP IDENTIFICATIONS INTO EVIDENCE.  PP. 13-14. 

MR. JUSTICE HARLAN CONCURS IN THE CONCLUSION THAT PETITIONERS'
CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THEY WERE REFUSED COUNSEL AT
THE PRELIMINARY HEARING.  PP. 19-20. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
THE FOLLOWING OPINION. 

PETITIONERS WERE CONVICTED IN AN ALABAMA CIRCUIT COURT OF ASSAULT
WITH INTENT TO MURDER IN THE SHOOTING OF ONE REYNOLDS AFTER HE AND HIS
WIFE PARKED THEIR CAR ON AN ALABAMA HIGHWAY TO CHANGE A FLAT TIRE.  THE
ALABAMA COURT OF APPEALS AFFIRMED, 44 ALA.APP.  429, 211 SO.2D 917
(9168), AND THE ALABAMA SUPREME COURT DENIED REVIEW, 282 ALA. 725, 211
SO.2D 927 (1968).  WE GRANTED CERTIORARI, 394 U.S. 916 (1969).  WE
VACATE AND REMAND. 

PETITIONERS MAKE TWO CLAIMS IN THIS COURT.  FIRST, THEY ARGUE THAT
THEY WERE SUBJECTED TO A STATION-HOUSE LINEUP IN CIRCUMSTANCES SO
UNDULY PREJUDICIAL AND CONDUCIVE TO IRREPARABLE MISIDENTIFICATION AS
FATALLY TO TAINT REYNOLDS' IN-COURT IDENTIFICATIONS OF THEM AT THE
TRIAL.  SECOND, THEY ARGUE THAT THE PRELIMINARY HEARING PRIOR TO THEIR
INDICTMENT WAS A "CRITICAL STAGE" OF THE PROSECTUION AND THAT ALABAMA'S
FAILURE TO PROVIDE THEM WITH APPOINTED COUNSEL AT THE HEARING THEREFORE
UNCONSTITUTIONALLY DENIED THEM THE ASSISTANCE OF COUNSEL. 

        I  /1/ 

THE LINEUP OF WHICH PETITIONERS COMPLAIN WAS CONDUCTED ON OCTOBER 1,
1966, ABOUT TWO MONTHS AFTER THE ASSAULT AND SEVEN MONTHS BEFORE
PETITIONERS' TRIAL.  PETITIONERS CONCEDE THAT SINCE THE LINEUP OCCURRED
BEFORE UNITED STATES V. WADE, 388 U.S. 218, AND GILBERT V. CALIFORNIA,
388 U.S. 263, WERE DECIDED ON JUNE 12, 1967, THEY CANNOT INVOKE THE
HOLDING OF THOSE CASES REQUIRING THE EXCLUSION OF IN-COURT
IDENTIFICATION EVIDENCE WHICH IS TAINED BY EXHIBITING THE ACCUSED TO
IDENTIFYING WITNESSES BEFORE TRIAL IN THE ABSENCE OF COUNSEL.  STOVALL
V. DENNO, 388 U.S. 293, 296-301 (1967).  RATHER, THEY ARGUE THAT IN THE
CIRCUMSTANCES HERE THE CONDUCT OF THE LINEUP WAS SO UNDULY PREJUDICIAL
AS FATALLY TO TAINT REYNOLDS' IN-COURT IDENTIFICATION OF THEM.  THIS IS
A CLAIM THAT MUST BE DETERMINED ON THE TOTALITY OF THE SURROUNDING
CIRCUMSTANCES.  STOVALL V. DENNO, SUPRA, AT 301-302; SIMMONS V. UNITED
STATES, 390 U.S. 377 (1968); FOSTER V. CALIFORNIA, 394 U.S. 440
(1969). 

AT THE TRIAL REYNOLDS TESTIFIED THAT AT ABOUT 11:30 P.M. ON JULY 24,
1966, HE WAS ENGAGED IN CHANGING A TIRE WHEN THREE MEN APPROACHED FROM
ACROSS THE HIGHWAY.  ONE OF THEM SHOT HIM FROM A SHORT DISTANCE AWAY. 
THE THREE THEN RAN UP TO WITHIN THREE OR FOUR FEET.  REYNOLDS AROSE
FROM HIS STOOPED POSITION AND HELD ON TO HIS WIFE, WHO HAD LEFT THE CAR
TO WATCH HIM AS HE WORKED.  ONE OF THE MEN PUT HIS HAND ON MRS.
REYNOLDS' SHOULDER.  REYNOLDS TESTIFIED THAT THIS WAS COLEMAN.  WITHIN
A FEW SECONDS A CAR WITH ITS LIGHTS ON APPROACHED, AND THE THREE MEN
TURNED AND "RAN ACROSS THE ROAD.  . .."  AS THEY TURNED TO GO, REYNOLDS
WAS SHOT A SECOND TIME.  HE IDENTIFIED PETITIONER STEPHENS AS THE
GUNMAN, STATING THAT HE SAW HIM "IN THE CAR LIGHTS" WHILE "LOOKING
STRAIGHT AT HIM."  REYNOLDS REPEATED ON CROSS-EXAMINATION HIS TESTIMONY
ON DIRECT; HE SAID HE SAW COLEMAN "FACE TO FACE"; "I LOOKED INTO HIS
FACE," "GOT A REAL GOOD LOOK AT HIM." 

AT THE PRETRIAL HEARING ON PETITIONERS' MOTION TO SUPPRESS
IDENTIFICATION EVIDENCE, DETECTIVE FORDHAM TESTIFIED THAT HE HAD SPOKEN
BRIEFLY TO REYNOLDS AT THE HOSPITAL TWO DAYS AFTER THE ASSAULT AND
ABOUT TWO WEEKS LATER, AND THAT ON NEITHER OCCASION WAS REYNOLDS ABLE
TO PROVIDE MUCH INFORMATION ABOUT HIS ASSAILANTS.  AT THE HOSPITAL HE
GAVE A VAGUE DESCRIPTION-- THAT THE ATTACKERS WERE "YOUNG, BLACK MALES,
CLOSE TO THE SAME AGE AND HEIGHT."  PETITIONERS ARE BOTH NEGRO; BUT
STEPHENS WAS 18 AND 6'2", AND COLEMAN, 28 AND 5'4 1/2".  HOWEVER,
DETECTIVE FORDHAM ALSO TESTIFIED THAT AT THE TIME REYNOLDS GAVE THIS
DESCRIPTION HE WAS IN CONSIDERABLE PAIN, AND THAT CONSEQUENTLY THE
QUESTIONING WAS VERY BRIEF.  THE DETECTIVE FURTHER STATED THAT REYNOLDS
DID NOT IDENTIFY ANY OF HIS ASSAILANTS FROM MUG SHOTS, BUT IT DOES NOT
APPEAR WHETHER PICTURES OF PETITIONERS WERE AMONG THOSE SHOWN HIM. 
DETECTIVE HART TESTIFIED THAT A LINEUP WAS HELD ON OCTOBER 1 AT THE
REQUEST OF THE POLICE.  HE STATED THAT REYNOLDS IDENTIFIED PETITIONER
STEPHENS SPONTANEOUSLY BEFORE THE FORMAL LINEUP EVEN BEGAN.  "(THE SIX
MEN WERE BROUGHT IN BY THE WARDEN, UP ON THE STAGE, AND AS OTIS
STEPHENS-- HE DIDN'T GET TO HIS POSITION ON THE STAGE, WHICH WAS NUMBER
ONE, WHEN MR. REYNOLDS IDENTIFIED HIM AS BEING ONE OF HIS ASSAILANTS." 
REYNOLDS GAVE SIMILAR TESTIMONY:  "AS SOON AS HE STEPPED INSIDE THE
DOOR-- I HADN'T SEEN HIM PREVIOUS TO THEN UNTIL HE STEPPED INSIDE THE
DOOR, AND I RECOGNIZED HIM....  JUST AS SOON AS HE STEPPED UP ON THE
STAGE, I SAID, 'THAT MAN, THERE, IS THE ONE; HE IS THE ONE THAT SHOT
ME.'"  REYNOLDS ALSO TESTIFIED THAT HE IDENTIFIED COLEMAN AT THE LINEUP
BEFORE COLEMAN COULD ACT ON A REQUEST REYNOLDS HAD MADE THAT THE LINEUP
PARTICIPANTS SPEAK CERTAIN WORDS USED BY THE ATTACKERS.  REYNOLDS
ADMITTED THAT HE DID NOT TELL DETECTIVE HART OF HIS IDENTIFICATION
UNTIL LATER DURING THE LINEUP, AND THE DETECTIVE STATED HE COULD NOT
RECALL WHETHER REYNOLDS TOLD HIM OF THE IDENTIFICATION BEFORE OR AFTER
COLEMAN SPOKE THE WORDS. 

IT CANNOT BE SAID ON THIS RECORD THAT THE TRIAL COURT ERRED IN
FINDING THAT REYNOLDS' IN-COURT IDENTIFICATION OF THE PETITIONERS DID
NOT STEM FROM AN IDENTIFICATION PROCEDURE AT THE LINEUP "SO
IMPERMISSIBLY SUGGESTIVE AS TO GIVE RISE TO A VERY SUBSTANTIAL
LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION."  SIMMONS V. UNITED
STATES, SUPRA, AT 384.  INDEED, THE COURT COULD FIND ON THE EVIDENCE
ADDUCED AT THE SUPPRESSION HEARING THAT REYNOLDS' IDENTIFICATIONS WERE
ENTIRELY BASED UPON OBSERVATIONS AT THE TIME OF THE ASSAULT AND NOT AT
ALL INDUCED BY THE CONDUCT OF THE LINEUP.  THERE IS NO MERIT IN THE
THREE ARGUMENTS OFFERED BY PETITIONERS FOR A CONTRARY CONCLUSION. 

FIRST, REYNOLDS TESTIFIED THAT WHEN THE POLICE ASKED HIM TO GO TO
THE CITY JAIL HE "TOOK (IT) FOR GRANTED" THAT THE POLICE HAD CAUGHT HIS
ASSAILANTS.  BUT THE RECORD IS UTTERLY DEVOID OF EVIDENCE THAT ANYTHING
THE POLICE SAID OR DID PROMPTED REYNOLDS' VIRTUALLY SPONTANEOUS
IDENTIFICATION OF PETITIONERS AMONG THE LINEUP PARTICIPANTS AS THE
PROCEEDING GOT UNDER WAY. 

PETITIONERS NEXT CONTEND THAT THE LINEUP WAS UNFAIR BECAUSE THEY AND
THEIR CODEFENDANT WERE THE ONLY ONES REQUIRED TO SAY THE WORDS USED BY
ONE OF THE ATTACKERS.  THERE IS SOME CONFLICT IN THE TESTIMONY ON THIS
POINT.  PETITIONER STEPHENS TESTIFIED THAT PETITIONERS AND THEIR
CODEFENDANT WERE THE ONLY ONES WHO SPOKE THE WORDS.  REYNOLDS TESTIFIED
THAT NOT ALL THE MEN IN THE LINEUP SPOKE THEM.  BUT DETECTIVE HART
STATED THAT ALL THE PARTICIPANTS SPOKE THE WORDS.  IN ANY CASE, THE
COURT COULD FIND ON THE EVIDENCE THAT REYNOLDS IDENTIFIED BOTH
PETITIONERS BEFORE EITHER SAID ANYTHING, AND THAT THEREFORE ANY FAILURE
TO REQUIRE THE OTHER PARTICIPANTS TO SAY THE SAME WORDS DID NOT AID OR
INFLUENCE HIS IDENTIFICATIONS. 

FINALLY, PETITIONER COLEMAN CONTENDS THAT HE WAS UNFAIRLY SINGLED
OUT TO WEAR A HAT THOUGH ALL THE OTHER PARTICIPANTS WERE BAREHEADED. 
ONE OF THE ATTACKERS HAD WORN A HAT.  ALTHOUGH THE RECORD DEMONSTRATES
THAT COLEMAN DID IN FACT WEAR A HAT AT THE LINEUP, NOTHING IN THE
RECORD SHOWS THAT HE WAS REQUIRED TO DO SO.  MOREOVER, IT DOES NOT
APPEAR THAT REYNOLDS' IDENTIFICATION OF COLEMAN AT THE LINEUP WAS BASED
ON THE FACT THAT HE REMEMBERED THAT COLEMAN HAD WORN A HAT AT THE TIME
OF THE ASSAULT.  ON THE CONTRARY, THE COURT COULD CONCLUDE FROM HIS
TESTIMONY THAT REYNOLDS "ASKED THEM TO MAKE JOHN HENRY COLEMAN TO TAKE
HIS HAT OFF, OR MOVE IT BACK," BECAUSE HE WANTED TO SEE COLEMAN'S FACE
MORE CLEARLY. 

        II  /2/ 

THIS COURT HAS HELD THAT A PERSON ACCUSED OF CRIME "REQUIRES THE
GUIDING HAND OF COUNSEL AT EVERY STEP IN THE PROCEEDINGS AGAINST HIM,"
POWELL V. ALABAMA, 287 U.S. 45, 69 (1932), AND THAT THAT CONSTITUTIONAL
PRINCIPLE IS NOT LIMITED TO THE PRESENCE OF COUNSEL AT TRIAL.  "IT IS
CENTRAL TO THAT PRINCIPLE THAT IN ADDITION TO COUNSEL'S PRESENCE AT
TRIAL, THE ACCUSED IS GUARANTEED THAT HE NEED NOT STAND ALONE AGAINST
THE STATE AT ANY STATE OF THE PROSECUTION, FORMAL OR INFORMAL, IN COURT
OR OUT, WHERE COUNSEL'S ABSENCE MIGHT DEROGATE FROM THE ACCUSED'S RIGHT
TO A FAIR TRIAL."  UNITED STATES V. WADE, SUPRA, AT 226.  ACCORDINGLY,
"THE PRINCIPLE OF POWELL V. ALABAMA AND SUCCEEDING CASES REQUIRES THAT
WE SCRUTINIZE ANY PRETRIAL CONFRONTATION OF THE ACCUSED TO DETERMINE
WHETHER THE PRESENCE OF HIS COUNSEL IS NECESSARY TO PRESERVE THE
DEFENDANT'S BASIC RIGHT TO A FAIR TRIAL AS AFFECTED BY HIS RIGHT
MEANINGFULLY TO CROSS-EXAMINE THE WITNESSES AGAINST HIM AND TO HAVE
EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL ITSELF.  IT CALLS UPON US
TO ANALYZE WHETHER POTENTIAL SUBSTANTIAL PREJUDICE TO DEFENDANT'S
RIGHTS INHERES IN THE PARTICULAR CONFRONTATION AND THE ABILITY OF
COUNSEL TO HELP AVOID THAT PREJUDICE."  ID., AT 227.  APPLYING THIS
TEST, THE COURT HAS HELD THAT "CRITICAL STAGES" INCLUDE THE PRETRIAL
TYPE OF ARRAIGNMENT WHERE CERTAIN RIGHTS MAY BE SACRIFICED OR LOST,
HAMILTON V. ALABAMA, 368 U.S. 52, 54 (1961), SEE WHITE V. MARYLAND, 373
U.S. 59 (1963), AND THE PRETRIAL LINEUP, UNITED STATES V. WADE, SUPRA;
GILBERT V. CALIFORNIA, SUPRA.  CF. MIRANDA V. ARIZONA, 384 U.S. 436
(1966), WHERE THE COURT HELD THAT THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION INCLUDES A RIGHT TO COUNSEL AT A PRETRIAL CUSTODIAL
INTERROGATION.  SEE ALSO MASSIAH V. UNITED STATES, 377 U.S. 201
(1964). 

THE PRELIMINARY HEARING IS NOT A REQUIRED STEP IN AN ALABAMA
PROSECUTION.  THE PROSECUTOR MAY SEEK AT INDICTMENT DIRECTLY FROM THE
GRAND JURY WITHOUT A PRELIMINARY HEARING.  EX PARTE CAMPBELL, 278 ALA.
114, 176 SO.2D 242 (1965).  THE OPINION OF THE ALABAMA COURT OF APPEALS
IN THIS CASE INSTRUCTS US THAT UNDER ALABAMA LAW THE SOLE PURPOSES OF A
PRELIMINARY HEARING ARE TO DETERMINE WHETHER THERE IS SUFFICIENT
EVIDENCE AGAINST THE ACCUSED TO WARRANT PRESENTING HIS CASE TO THE
GRAND JURY, AND, IF SO, TO FIX BAIL IF THE OFFENSE IS BAILABLE.  44
ALA.APP.,AT 433, 211 SO.2D, AT 920.  SEE ALA. CODE, TIT. 15, SECS. 139,
140, 151.  /3/  THE COURT CONTINUED: 

      "AT THE PRELIMINARY HEARING . . . THE ACCUSED IS NOT REQUIRED

  TO ADVANCE ANY DEFENSES, AND FAILURE TO DO SO DOES NOT PRECLUDE

  HIM FROM AVAILING HIMSELF OF EVERY DEFENSE HE MAY HAVE UPON THE

  TRIAL OF THE CASE.  ALSO POINTER V. STATE OF TEXAS (380 U.S. 400

  (1965)) BARS THE ADMISSION OF TESTIMONY GIVEN AT A PRE-TRIAL

  PROCEEDING WHERE THE ACCUSED DID NOT HAVE THE BENEFIT OF

  CROSS-EXAMINATION BY AND THROUGH COUNSEL.  THUS, NOTHING

  OCCURRING AT THE PRELIMINARY HEARING IN ABSENCE OF COUNSEL CAN

  SUBSTANTIALLY PREJUDICE THE RIGHTS OF THE ACCUSED ON TRIAL."  44

ALA.APP.,AT 433, 211 SO.2D, AT 921. 

THIS COURT IS OF COURSE BOUND BY THIS CONSTRUCTION OF THE GOVERNING
ALABAMA LAW, KINGSLEY INTERNATIONAL PICTURES CORP. V. REGENTS, 360 U.S.
684, 688 (1959); ALBERTSON V. MILLARD, 345 U.S. 242, 244 (1953). 
HOWEVER, FROM THE FACT THAT IN CASES WHERE THE ACCUSED HAS NO LAWYER AT
THE HEARING THE ALABAMA COURTS PROHIBIT THE STATE'S USE AT TRIAL OF
ANYTHING THAT OCCURRED AT THE HEARING, IT DOES NOT FOLLOW THAT THE
ALABAMA PRELIMINARY HEARING IS NOT A "CRITICAL STAGE" OF THE STATE'S
CRIMINAL PROCESS.  THE DETERMINATION WHETHER THE HEARING IS A "CRITICAL
STAGE" REQUIRING THE PROVISION OF COUNSEL DEPENDS, AS NOTED, UPON AN
ANALYSIS "WHETHER POTENTIAL SUBSTANTIAL PREJUDICE TO DEFENDANT'S RIGHTS
INHERES IN THE . . . CONFRONTATION AND THE ABILITY OF COUNSEL TO HELP
AVOID THAT PREJUDICE."  UNITED STATES V. WADE, SUPRA, AT 227.  PLAINLY
THE GUIDING HAND OF COUNSEL AT THE PRELIMINARY HEARING IS ESSENTIAL TO
PROTECT THE INDIGENT ACCUSED AGAINST AN ERRONEOUS OR IMPROPER
PROSECUTION.  FIRST, THE LAWYER'S SKILLED EXAMINATION AND CROSS
EXAMINATION OF WITNESSES MAY EXPOSE FATAL WEAKNESSES IN THE STATE'S
CASE THAT MAY LEAD THE MAGISTRATE TO REFUSE TO BIND THE ACCUSED OVER. 
SECOND, IN ANY EVENT, THE SKILLED INTERROGATION OF WITNESSES BY AN
EXPERIENCED LAWYER CAN FASHION A VITAL IMPEACHMENT TOOL FOR USE IN
CROSS-EXAMINATION OF THE STATE'S WITNESSES AT THE TRIAL, OR PRESERVE
TESTIMONY FAVORABLE TO THE ACCUSED OF A WITNESS WHO DOES NOT APPEAR AT
THE TRIAL.  THIRD, TRAINED COUNSEL CAN MORE EFFECTIVELY DISCOVER THE
CASE THE STATE HAS AGAINST HIS CLIENT AND MAKE POSSIBLE THE PREPARATION
OF A PROPER DEFENSE TO MEET THAT CASE AT THE TRIAL.  FOURTH, COUNSEL
CAN ALSO BE INFLUENTIAL AT THE PRELIMINARY HEARING IN MAKING EFFECTIVE
ARGUMENTS FOR THE ACCUSED ON SUCH MATTERS AS THE NECESSITY FOR AN EARLY
PSYCHIATRIC EXAMINATION OR BAIL. 

THE INABILITY OF THE INDIGENT ACCUSED ON HIS OWN TO REALIZE THESE
ADVANTAGES OF A LAWYER'S ASSISTANCE COMPELS THE CONCLUSION THAT THE
ALABAMA PRELIMINARY HEARING IS A "CRITICAL STAGE" OF THE STATE'S
CRIMINAL PROCESS AT WHICH THE ACCUSED IS "AS MUCH ENTITLED TO SUCH AID
(OF COUNSEL) . . . AS AT THE TRIAL ITSELF."  POWELL V. ALABAMA, SUPRA,
AT 57. 

        III  /4/ 

THERE REMAINS, THEN, THE QUESTION OF THE RELIEF TO WHICH PETITIONERS
ARE ENTITLED.  THE TRIAL TRANSCRIPT INDICATES THAT THE PROHIBITION
AGAINST USE BY THE STATE AT TRIAL OF ANYTHING THAT OCCURRED AT THE
PRELIMINARY HEARING WAS SCRUPULOUSLY OBSERVED.  /5/  CF. WHITE V.
MARYLAND, SUPRA.  BUT ON THE RECORD IT CANNOT BE SAID WHETHER OR NOT
PETITIONERS WERE OTHERWISE PREJUDICED BY THE ABSENCE OF COUNSEL AT THE
PRELIMINARY HEARING.  THAT INQUIRY IN THE FIRST INSTANCE SHOULD MORE
PROPERLY BE MADE BY THE ALABAMA COURTS.  THE TEST TO BE APPLIED IS
WHETHER THE DENIAL OF COUNSEL AT THE PRELIMINARY HEARING WAS HARMLESS
ERROR UNDER CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1967).  SEE UNITED
STATES V. WADE, SUPRA, AT 242. 

WE ACCORDINGLY VACATE THE PETITIONERS' CONVICTIONS AND REMAND THE
CASE TO THE ALABAMA COURTS FOR SUCH PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION AS THEY MAY DEEM APPROPRIATE TO DETERMINE WHETHER SUCH
DENIAL OF COUNSEL WAS HARMLESS ERROR, SEE GILBERT V. CALIFORNIA, SUPRA,
AT 272, AND THEREFORE WHETHER THE CONVICTIONS SHOULD BE REINSTATED OR A
NEW TRIAL ORDERED. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, AND MR. JUSTICE
MARSHALL JOIN THIS PART I. 

/2/  MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, AND MR. JUSTICE
MARSHALL JOIN THIS PART II. 

/3/  A TEXTBOOK, CRIMINAL PROCEDURE IN ALABAMA, BY M. CLINTON MCGEE
(UNIVERSITY OF ALABAMA PRESS 1954), P. 41, STATES: 

"A PRELIMINARY HEARING OR EXAMINATION IS NOT A TRIAL IN ITS ORDINARY
SENSE NOR IS IT A FINAL DETERMINATION OF GUILT.  IT IS A PROCEEDING
WHEREBY AN ACCUSED IS DISCHARGED OR HELD TO ANSWER, AS THE FACTS
WARRANT.  IT SEEKS TO DETERMINE WHETHER THERE IS PROBABLE CAUSE FOR
BELIEVING THAT A CRIME HAS BEEN COMMITTED AND WHETHER THE ACCUSED IS
PROBABLY GUILTY, IN ORDER THAT HE MAY BE INFORMED OF THE NATURE OF SUCH
CHARGE AND TO ALLOW THE STATE TO TAKE THE NECESSARY STEPS TO BRING HIM
TO TRIAL.  SUCH HEARING ALSO SERVES TO PERPETUATE EVIDENCE AND TO KEEP
THE NECESSARY WITNESSES WITHIN THE CONTROL OF THE STATE.  IT ALSO
SAFEGUARDS THE ACCUSED AGAINST GROUNDLESS AND VINDICTIVE PROSECUTIONS,
AND AVOIDS FOR BOTH THE ACCUSED AND THE STATE THE EXPENSE AND
INCONVEIENCE OF A PUBLIC TRIAL." 

/4/  MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, AND
MR. JUSTICE MARSHALL JOIN THIS PART III. 

/5/  THE TRIAL JUDGE HELD A HEARING TWO MONTHS BEFORE THE TRIAL ON
MOTIONS ON BEHALF OF PETITIONERS TO SUPPRESS "ANY EVIDENCE OR DISCOVERY
WHATSOEVER OBTAINED . . . ON THE PRELIMINARY HEARING . . . AND FURTHER
ANY STATEMENTS RELATING TO ANY IDENTIFICATION . . . DURING ANY LINE-UP
. . . "  THE STATE CONCEDED THAT THE MOTION SHOULD BE GRANTED AS TO ANY
STATEMENTS OF EITHER PETITIONER TAKEN BY THE POLICE UPON THEIR ARRESTS,
AND WRITTEN AND ORAL CONFESSIONS MADE BY THEM WERE THEREFORE NOT
OFFERED AT THE TRIAL.  AT AN EARLY STAGE OF THE HEARING ON THE MOTIONS,
THE TRIAL JUDGE SAID: 

"IT HAS BEEN MY CONSISTENT RULING, AND I DON'T KNOW OF ANY LAW TO
THE CONTRARY, THAT, ON THE BASIS OF WHAT HAPPENED AT THE PRELIMINARY
HEARING, THAT IF A LAWYER WAS NOT REPRESENTING THE DEFENDANT THAT
ANYTHING THAT MAY HAVE OCCURRED AT THAT PRELIMINARY WHICH MIGHT WORK
AGAINST THE DEFENDANT, WHETHER IT BE ANYTHING HE SAID THERE, ASSUMING
HE MIGHT HAVE TAKEN THE STAND, ANYTHING OF THAT NATURE, WOULD, ON THE
TRIAL OF THE CASE ON THE MERITS, BE INADMISSIBLE. 

"I WOULDN'T ANTICIPATE THE STATE OFFERING ANYTHING LIKE THAT, BUT
THAT HAS BEEN MY RULING ON THAT EVER SINCE WE CAHNGED SOME OF OUR WAYS
OF DOING THINGS. 

"IT WOULDN'T BE MATERIAL FROM THE STANDPOINT THAT A MAN DOWN THERE,
WHEN NOT REPRESENTED BY COUNSEL ON THE PRELIMINARY, MADE SOME
STATEMENT, SAID, 'I AM GUILTY.'  YOU KNOW, A LOT OF TIMES HE MIGHT SAY,
'I AM GUILTY.' 

"THAT THAT WOULD NOT BE ADMISSIBLE IF HE WEREN'T REPRESENTED BY
COUNSEL, AND THAT SORT OF THING." 

MR. JUSTICE BLACK, CONCURRING. 

I WHOLEHEARTEDLY AGREE WITH THE CONCLUSION IN PART II OF THE
PREVAILING OPINION THAT AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO THE
ASSISTANCE OF COUNSEL AT THE PRELIMINARY HEARING WHICH ALABAMA GRANTS
CRIMINAL DEFENDANTS.  THE PURPOSE OF THE PRELIMINARY HEARING IN ALABAMA
IS TO DETERMINE WHETHER AN OFFENSE HAS BEEN COMMITTED AND, IF SO,
WHETHER THERE IS PROBABLE CAUSE FOR CHARGING THE DEFENDANT WITH THAT
OFFENSE.  IF THE MAGISTRATE FINDS THAT THERE IS PROBABLE CAUSE FOR
CHARGING THE DEFENDANT WITH THE OFFENSE, THE DEFENDANT MUST, UNDER
ALABAMA LAW, BE EITHER INCARCERATED OR ADMITTED TO BAIL.  IN THE
ABSENCE OF SUCH A FINDING OF PROBABLE CAUSE, THE DEFENDANT MUST BE
RELEASED FROM CUSTODY.  ALA. CODE, TIT. 15, SECS. 139-140.  THE
PRELIMINARY HEARING IS THEREFORE A DEFINITE PART OR STAGE OF A CRIMINAL
PROSECUTION IN ALABAMA, AND THE PLAIN LANGAUGE OF THE SIXTH AMENDMENT
REQUIRES THAT "(IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY
THE RIGHT . . . TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE." 
MOREOVER, EVERY ATTORNEY WITH EXPERIENCE IN REPRESENTING CRIMINAL
DEFENDANTS IN A STATE WHICH HAS A PRELIMINARY HEARING SIMILAR TO
ALABAMA'S KNOWS-- SOMETIMES FROM SAID EXPERIENCE-- THAT ADEQUATE
REPRESENTATION REQUIRES THAT COUNSEL BE PRESENT AT THE PRELIMINARY
HEARING TO PROTECT THE INTEREST OF HIS CLIENT.  THE PRACTICAL
IMPORTANCE OF THE PRELIMINARY HEARING IS DISCUSSED IN THE PREVAILING
OPINION, AND THE CONSIDERATIONS OUTLINED THERE SEEM TO ME MORE THAN
SUFFICIENT TO COMPEL THE CONCLUSION THAT THE PRELIMINARY HEARING IS A
"CRITICAL STAGE" OF THE PROCEEDINGS DURING WHICH THE ACCUSED MUST BE
AFFORDED THE ASSISTANCE OF COUNSEL IF HE IS TO HAVE A MEANINGFUL
DEFENSE AT TRIAL AS GUARANTEED IN THE BILL OF RIGHTS. 

I FEAR THAT THE PREVAILING OPINION SEEMS AT TIMES TO PROCEED ON THE
PREMISE THAT THE CONSTITUTIONAL PRINCIPLE ULTIMATELY AT STAKE HERE IS
NOT THE DEFENDANT'S RIGHT TO COUNSEL AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS BUT RATHER A RIGHT TO A "FAIR TRIAL" AS CONCEIVED
BY JUDGES.  WHILE THAT PHRASE IS AN APPEALING ONE, NEITHER THE BILL OF
RIGHTS NOR ANY OTHER PART OF THE CONSTITUTION CONTAINS IT.  THE
PRAGMATIC, GOVERNMENT-FEARING AUTHORS OF OUR CONSTITUTION AND BILL OF
RIGHTS DID NOT, AND I THINK WISELY DID NOT, USE ANY SUCH VAGUE,
INDEFINITE, AND ELASTIC LANGUAGE.  INSTEAD, THEY PROVIDED THE DEFENDANT
WITH CLEAR, EMPHATIC GUARANTEES:  COUNSEL FOR HIS DEFENSE, A SPEEDY
TRIAL, TRIAL BY JURY, CONFRONTATION WITH THE WITNESSES AGAINST HIM, AND
OTHER SUCH UNEQUIVOCAL AND DEFINITE RIGHTS.  THE EXPLICIT COMMANDS OF
THE CONSTITUTION PROVIDE A FULL DESCRIPTION OF THE KIND OF "FAIR TRIAL"
THE CONSTITUTION GUARANTEES, AND IN MY JUDGMENT THAT DOCUMENT LEAVES
NO ROOM FOR JUDGES EITHER TO ADD TO OR DETRACT FROM THESE COMMANDS.  I
CAN HAVE NO PART IN UNAUTHORIZED JUDICIAL TOYING WITH THE CAREFULLY
SELECTED LANGUAGE OF OUR CONSTITUTION, WHICH I THINK IS THE WISEST AND
BEST CHARTER OF GOVERNMENT IN EXISTENCE.  IT DECLARES A MAN CHARGED
WITH A CRIME SHALL BE AFFORDED A LAWYER TO DEFEND HIM EVEN THOUGH ALL
THE JUDGES THROUGHOUT THE ENTIRE UNITED STATES SHOULD DECLARE, "IT IS
ONLY WHEN WE THINK FAIRNESS REQUIRES IT THAT AN ACCUSED SHALL HAVE THE
ASSISTANCE OF COUNSEL FOR HIS DEFENSE."  FOR ONE, I STILL PREFER TO
TRUST THE LIBERTY OF THE CITIZEN TO THE PLAIN LANGUAGE OF THE
CONSTITUTION RATHER THAN TO THE SENSE OF FAIRNESS OF PARTICULAR
JUDGES. 

I ALSO AGREE WITH THE PREVAILING OPINION IN REJECTING PETITIONERS'
CLAIM THAT THEIR IN-COURT IDENTIFICATION BY THE VICTIM OF THE ASSAULT
SHOULD HAVE BEEN SUPPRESSED.  THIS CLAIM RELIES MAINLY ON STOVALL V.
DENNO, 388 U.S. 293 (1967), IN WHICH THE COURT HELD THAT AN IN-COURT
IDENTIFICATION COULD BE SUPPRESSED UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT IF IT WAS TAINTED BY AN "UNNECESSARILY SUGGESTIVE"
PRETRIAL LINEUP.  I DISSENTED IN STOVALL PARTLY ON THE GROUND THAT THE
MAJORITY'S NEW SUPPRESSION RULE WAS A CLASSIC EXAMPLE OF THIS COURT'S
USING THE DUE PROCESS CLAUSE TO WRITE INTO LAW ITS OWN NOTIONS OF
FAIRNESS, DECENCY, AND FUNDAMENTAL JUSTICE, IN TOTAL DISREGARD OF THE
LANGUAGE OF THE CONSTITUTION ITSELF.  BUT I ALSO ARGUED IN STOVALL THAT
THE RIGHT TO COUNSEL AT A LINEUP, DECLARED THAT SAME DAY IN UNITED
STATES V. WADE, 388 U.S. 218 (1967), SHOULD BE HELD FULLY RETROACTIVE. 
STOVALL V. DENNO, 388 U.S.,AT 303.  ACCORDINGLY, I BELIEVE THAT
PETITIONERS IN THIS PRE-WADE CASE WERE ENTITLED TO COURT-APPOINTED
COUNSEL AT THE TIME OF THE LINEUP IN WHICH THEY PARTICIPATED AND THAT
ALABAMA'S FAILURE TO PROVIDE SUCH COUNSEL VIOLATED PETITIONERS' RIGHTS
UNDER THE SIXTH AND FOURTEENTH AMENDMENTS.  HOWEVER, FOR THE REASONS
STATED IN MY SEPARATE OPINION IN UNITED STATES V. WADE, 388 U.S. 218,
243 (1967), I BELIEVE THE REQUIREMENTS OF THE FIFTH AND SIXTH
AMENDMENTS WERE SATISFIED WHEN THE ALABAMA PROSECUTORS DECLINED AT
TRIAL TO INTRODUCE THE PRETRIAL LINEUP IDENTIFICATION INTO EVIDENCE. 
ACCORDINGLY, I CONCUR IN THE CONCLUSION IN PART I OF THE PREVAILING
OPINION THAT THE ALABAMA COURT DID NOT ERR IN PERMITTING THE COURTROOM
IDENTIFICATION OF PETITIONERS BY THE WITNESS WHO HAD PREVIOUSLY
IDENTIFIED THEM AT THE LINEUP. 

FOR THE REASONS HERE STATED, I AGREE THAT PETITIONERS' CONVICTIONS
MUST BE VACATED AND THE CASE REMANDED TO THE ALABAMA COURTS FOR
CONSIDERATION OF WHETHER THE DENIAL OF COUNSEL AT THE PRELIMINARY
HEARING WAS HARMLESS ERROR UNDER THE COURT'S DECISION IN CHAPMAN V.
CALIFORNIA, 386 U.S. 18 (1967). 

MR. JUSTICE DOUGLAS. 

WHILE I HAVE JOINED MR. JUSTICE BRENNAN'S OPINION, I ADD A WORD AS
TO WHY I THINK THAT A STRICT CONSTRUCTION OF THE CONSTITUTION REQUIRES
THE RESULT REACHED. 

THE CRITICAL WORDS ARE:  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED
SHALL ENJOY THE RIGHT . . . TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENCE."  AS MR. JUSTICE BLACK STATES, A PRELIMINARY HEARING IS "A
DEFINITE PART OR STAGE OF A CRIMINAL PROSECUTION IN ALABAMA."  A
"CRIMINAL PROSECUTION" CERTAINLY DOES NOT START ONLY WHEN THE TRIAL
STARTS.  IF THE COMMENCEMENT OF THE TRIAL WERE THE START OF THE
"CRIMINAL PROSECUTION" IN THE CONSTITUTIONAL SENSE, THEN INDIGENTS
WOULD LIKELY GO TO TRIAL WITHOUT EFFECTIVE REPRESENTATION BY COUNSEL. 
LAWYERS FOR THE DEFENSE NEED TIME TO PREPARE A DEFENSE.  THE
PROSECUTION NEEDS TIME FOR INVESTIGATIONS AND PROCEDURES TO MAKE THAT
INVESTIGATION TIMELY AND TELLING.  AS A SHORTHAND EXPRESSION WE HAVE
USED THE WORDS "CRITICAL STAGE" TO DESCRIBE WHETHER THE PRELIMINARY
PHASE OF A CRIMINAL TRIAL WAS PART OF THE "CRIMINAL PROSECUTION" AS
USED IN THE SIXTH AMENDMENT.  BUT IT IS THE SIXTH AMENDMENT THAT
CONTROLS, NOT OUR OWN IDEAS AS TO WHAT AN EFFICIENT CRIMINAL CODE
SHOULD PROVIDE.  IT DID NOT TAKE NEARLY 200 YEARS OF DOUBT TO DECIDE
WHETHER ALABAMA'S PRELIMINARY HEARING IS A PART OF THE "CRIMINAL
PROSECUTION" WITHIN THE MEANING OF THE SIXTH AMENDMENT.  THE QUESTION
HAS NEVER BEEN REACHED PRIOR TO THIS CASE.  WE EXPERIENCE HERE THE CASE
BY-CASE APPROACH THAT IS THE ONLY ONE AVAILABLE UNDER OUR "CASE" OR
"CONTROVERSY" JURISDICTION UNDER THAT IS THE ONLY ONE AVAILABLE UNDER
OUR "CASE" OR "CONTROVERSY" JURISDICTION UNDER ARTICLE III OF THE
CONSTITUTION. 

IF WE ARE TO ADHERE TO THE MANDATE OF THE CONSTITUTION AND NOT GIVE
IT MERELY THAT MEANING WHICH APPEALS TO THE PERSONAL TASTES OF THOSE
WHO FROM TIME TO TIME SIT HERE, WE SHOULD READ ITS TERMS IN LIGHT OF
THE REALITIES OF WHAT "CRIMINAL PROSECUTIONS" TRULY MEAN. 

I WAS IMPRESSED WITH THE NEED FOR THAT KIND OF STRICT CONSTRUCTION
ON EXPERIENCES IN MY VARIOUS RUSSIAN JOURNEYS.  IN THAT NATION
DETENTION INCOMMUNICADO IS THE COMMON PRACTICE, AND THE PERIOD OF
PERMISSIBLE DETENTION NOW EXTENDS FOR NINE MONTHS.  /1/  WHERE THERE IS
CUSTODIAL INTERROGATION, IT IS CLEAR THAT THE CRITICAL STATE OF THE
TRIAL TAKES PLACE LONG BEFORE THE COURTROOM FORMALITIES COMMENCE.  THAT
IS APPARENT TO ONE WHO ATTENDS CRIMINAL TRIALS IN RUSSIA.  THOSE THAT I
VIEWED NEVER PUT IN ISSUE THE QUESTION OF GUILT; GUILT WAS AN ISSUE
RESOLVED IN THE INNER PRECINCTS OF A PRISON UNDER QUESTIONING BY THE
POLICE.  THE COURTROOM TRIAL CONCERNED ONLY THE ISSUE OF PUNISHMENT. 

CUSTODIAL INTERROGATION IS IN PRACTICE-- HERE AND IN OTHER NATIONS--
SO CRITICAL THAT WE WOULD GIVE "CRIMINAL PROSECUTIONS" AS USED IN THE
SIXTH AMENDMENT A STRAINED AND NARROW MEANING IF WE HELD THAT IT DID
NOT INCLUDE THAT PHASE.  MY BROTHER HARLAN IN HIS DISSENT IN MIRANDA V.
ARIZONA, 384 U.S. 436, 513, CALLED THE SIXTH AMENDMENT CASES CITED BY
THE MAJORITY OF THE COURT THE "LINCHPINS" OF THE RULING THAT AN ACCUSED
UNDER CUSTODIAL INTERROGATION WAS ENTITLED TO THE ASSISTANCE OF
COUNSEL.  /2/  THEY WERE PROPERLY SUCH, ALTHOUGH THE MAIN EMPHASIS IN
THE MIRANDA OPINION WAS ON THE USE OF CUSTODIAL INTERROGATION TO EXACT
INCRIMINATING STATEMENTS /3/  AGAINST THE COMMANDS OF THE FOURTEENTH
AND FIFTH AMENDMENTS.  LIKE THE PRELIMINARY HEARING IN THE PRESENT
CASE, CUSTODIAL INTERROGATION IS OBVIOUSLY PART OF THE "CRIMINAL
PROSECUTION" THAT THE SIXTH AMENDMENT HONORS-- IF STRICT CONSTRUCTION
IS OUR GUIDE. 

/1/  ARTICLE 97 OF THE RSFSR CODES OF CRIMINAL PROCEDURE PROVIDES: 

"CONFINEMENT UNDER GUARD IN CONNECTION WITH THE INVESTIGATION OF A
CASE MAY NOT CONTINUE FOR MORE THAN TWO MONTHS.  ONLY BY REASON OF THE
SPECIAL COMPLEXITY OF THE CASE MAY THIS PERIOD BE PROLONGED UP TO THREE
MONTHS FROM THE DAY OF CONFINEMENT UNDER GUARD BY A PROCURATOR OF AN
AUTONOMOUS REPUBLIC, TERRITORY, REGION, AUTONOMOUS REGION, OR NATIONAL
AREA, OR BY A MILITARY PROCURATOR OF A MILITARY REGION OR FLEET, OR UP
TO SIX MONTHS BY THE RSFSR PROCURATOR OR THE CHIEF MILITARY
PROCURATOR.  FURTHER PROLONGATION OF A PERIOD OF CONFINEMENT UNDER
GUARD MAY BE CARRIED OUT ONLY IN EXCEPTIONAL INSTANCES BY THE USSR
PROCURATOR GENERAL FOR A PERIOD OF NOT MORE THAN AN ADDITIONAL THREE
MONTHS."  SOVIET CRIMINAL LAW AND PROCEDURE:  THE RSFSR CODES 288 (H.
BERMAN & J. SPINDLER TRANSL.  1966). 

/2/  ARTICLE 47 OF THE RSFSR CODES OF CRIMINAL PROCEDURE PROVIDES IN
PART: 

"DEFENSE COUNSEL SHALL BE PERMITTED TO PARTICIPATE IN A CASE FROM
THE MOMENT THE ACCUSED IS INFORMED OF THE COMPLETION OF THE PRELIMINARY
INVESTIGATION AND IS PRESENTED WITH ALL THE PROCEEDINGS OF THE CASE TO
BECOME ACQUAINTED WITH THEM."  SOVIET CRIMINAL LAW AND PROCEDURE:  THE
RSFSR CODES, SUPRA, N. 1, AT 269. 

/3/  NO NATION HAS A MONOPOLY ON THE USE OF THIS DEVICE ALTHOUGH THE
PRESENT GREEK GOVERNMENT ACCORDING TO THE 1969 REPORT OF THE COMMISSION
OF HUMAN RIGHTS OF THE COUNCIL OF EUROPE HAS REACHED A HIGH LEVEL OF
EFFICIENCY IN THE USE OF TORTURE: 

"FALANGA OR BASTINADO HAS BEEN A METHOD OF TORTURE KNOWN FOR
CENTURIES.  IT IS THE BEATING OF THE FEET WITH A WOODEN OR METAL STICK
OR BAR WHICH, IF SKILFULLY DONE, BREAKS NO BONES, MAKES NO SKIN
LESIONS, AND LEAVES NO PERMANENT AND RECOGNISABLE MARKS, BUT CAUSES
INTENSE PAIN AND SWELLING OF THE FEET.  THE USE OF FALANGA HAS BEEN
DESCRIBED IN A VARIETY OF SITUATIONS:  ON A BENCH OR CHAIR OR ON A CAR
SEAT; WITH OR WITHOUT SHOES ON.  SOMETIMES WATER HAS BEEN THROWN OVER
THE FEET AND SOMETIMES THE VICTIM HAS BEEN MADE TO RUN AROUND BETWEEN
BEATINGS.  VICTIMS HAVE ALSO BEEN GAGGED. 

        *          *          *          * 

"WHILE FALANGA AND SEVERE BEATINGS OF ALL PARTS OF THE BODY ARE THE
COMMONEST FORMS OF TORTURE OR ILL-TREATMENT THAT APPEAR IN THE EVIDENCE
BEFORE THE SUB-COMMISSION, OTHER FORMS HAVE BEEN DESCRIBED:  FOR
EXAMPLE, THE APPLICATION OF ELECTRIC SHOCK, SQUEEZING OF THE HEAD IN A
VICE, PULLING OUT OF HAIR FROM THE HEAD OR PUBLIC REGION, OR KICKING OF
THE MALE GENITAL ORGANS, DRIPPING WATER ON THE HEAD, AND INTENSE NOISES
TO PREVENT SLEEP. 

"FALANGA HAS NOT ONLY BEEN THE COMMONEST FORM OF TORTURE OF ILL
TREATMENT IN THE CASES IN WHICH THE SUB-COMMISSION HAS BEEN ABLE TO
ESTABLISH THE FACTS TO A SUBSTANTIAL DEGREE BUT ALSO APPEARS WITH GREAT
FREQUENCY IN THE FURTHER ALLEGATIONS RAISED IN THE PROCEEDINGS WITH
REGARD TO OTHER NAMED DETAINEES.  THE PRINCIPAL FORMS OF ALLEGED
TREATMENT-- FREQUENTLY SEVERAL FORMS COMBINED IN ONE AND THE SAME CASE-
ARE AS FOLLOWS IN THE TWO CATEGORIES:

              CASES EXAMINED  FURTHER ALLEGATIONS 

     FALANGA . . . 23 53 

    ELECTRO-SHOCK . . . 4 3 

     MOCK EXECUTION OR THREATS TO SHOOT OR KILL THE VICTIM . . . 12
15 

     OTHER BEATING OR ILL-TREATMENT . . . 26 17" 

     EUROPEAN COMMISSION OF HUMAN RIGHTS, REPORT ON THE GREEK 

     CASE, VOL. 2, PT. 1, PP. 415-416 (1969). 

MR. JUSTICE WHITE, CONCURRING. 

I AGREE WITH MR. JUSTICE HARLAN THAT RECENT CASES FURNISH AMPLE
GROUND FOR HOLDING THE PRELIMINARY HEARING A CRITICAL EVENT IN THE
PROGRESS OF A CRIMINAL CASE.  I THEREFORE JOIN THE PREVAILING OPINION,
BUT WITH SOME HESITATION SINCE REQUIRING THE APPOINTMENT OF COUNSEL MAY
RESULT IN FEWER PRELIMINARY HEARINGS IN JURISDICTIONS WHERE THE
PROSECUTOR IS FREE TO AVOID THEM BY TAKING A CASE DIRECTLY TO A GRAND
JURY.  OUR RULING MAY ALSO INVITE ELIMINATING THE PRELIMINARY HEARING
SYSTEM ENTIRELY. 

I WOULD EXPECT THE APPLICATION OF THE HARMLESS-ERROR STANDARD ON
REMAND TO PRODUCE RESULTS APPROXIMATING THOSE CONTEMPLATED BY MR.
JUSTICE HARLAN'S SEPARATELY STATED VIEWS.  WHETHER DENYING PETITIONERS
COUNSEL AT THE PRELIMINARY HEARING WAS HARMLESS BEYOND A REASONABLE
DOUBT DEPENDS UPON AN ASSESSMENT OF THOSE FACTORS THAT MADE THE DENIAL
ERROR.  BUT THAT ASSESSMENT CANNOT IGNORE THE FACT THAT PETITIONERS
HAVE BEEN TRIED AND FOUND GUILTY BY A JURY. 

THE POSSIBILITY THAT COUNSEL WOULD HAVE DETECTED PRECLUSIVE FLAWS IN
THE STATE'S PROBABLE-CAUSE SHOWING IS FOR ALL PRACTICAL PURPOSES MOOTED
BY THE TRIAL WHERE THE STATE PRODUCED EVIDENCE SATISFYING THE JURY OF
THE PETITIONERS' GUILT BEYOND A REASONABLE DOUBT.  ALSO, IT WOULD BE
WHOLLY SPECULATIVE IN THIS CASE TO ASSUME EITHER (1) THAT THE STATE'S
WITNESSES AT THE TRIAL TESTIFIED INCONSISTENTLY WITH WHAT THEIR
TESTIMONY WOULD HAVE BEEN IF PETITIONERS HAD HAD COUNSEL TO CROSS
EXAMINE THEM AT THE PRELIMINARY HEARING, OR (2) THAT COUNSEL, HAD HE
BEEN PRESENT AT THE HEARING, WOULD HAVE KNOWN SO MUCH MORE ABOUT THE
STATE'S CASE THAN HE ACTUALLY DID WHEN HE WENT TO TRIAL THAT THE RESULT
OF THE TRIAL MIGHT HAVE BEEN DIFFERENT.  SO TOO IT SEEMS EXTREMELY
UNLIKELY THAT MATTERS RELATED TO BAIL OR EARLY PSYCHIATRIC EXAMINATION
WOULD EVER RAISE REASONABLE DOUBTS ABOUT THE INTEGRITY OF THE TRIAL. 

THERE REMAINS THE POSSIBILITY, AS MR. JUSTICE HARLAN SUGGESTS, THAT
IMPORTANT TESTIMONY OF WITNESSES UNAVAILABLE AT THE TRIAL COULD HAVE
BEEN PRESERVED HAD COUNSEL BEEN PRESENT TO CROSS-EXAMINE OPPOSING
WITNESSES OR TO EXAMINE WITNESSES FOR THE DEFENSE.  IF SUCH WAS THE
CASE, PETITIONERS WOULD BE ENTITLED TO A NEW TRIAL. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

IF I FELT FREE TO CONSIDER THIS CASE UPON A CLEAN SLATE I WOULD HAVE
VOTED TO AFFIRM THESE CONVICTIONS.  /1/  BUT-- IN LIGHT OF THE LENGTHS
TO WHICH THE RIGHT TO APPOINTED COUNSEL HAS BEEN CARRIED IN RECENT
DECISIONS OF THIS COURT, SEE MIRANDA V. ARIZONA, 384 U.S. 436 (1966);
UNITED STATES V. WADE, 388 U.S. 218 (1967); GILBERT V. CALIFORNIA, 388
U.S. 263 (1967); MATHIS V. UNITED STATES, 391 U.S. 1 (1968); AND OROZCO
V. TEXAS, 394 U.S. 324 (1969)-- I CONSIDER THAT COURSE IS NOT OPEN TO
ME WITH DUE REGARD FOR THE WAY IN WHICH THE ADJUDICATORY PROCESS OF
THIS COURT, AS I CONCEIVE IT, SHOULD WORK.  THE CONTINUING VIABILITY OF
THE CASES JUST CITED IS NOT DIRECTLY BEFORE US FOR DECISION, AND IF AND
WHEN SUCH AN OCCASION ARISES I WOULD FACE IT IN TERMS OF CONSIDERATIONS
THAT I HAVE RECENTLY EXPRESSED ELSEWHERE.  SEE MY DISSENTING OPINION IN
BALDWIN V. NEW YORK, DECIDED TODAY, POST, P. 117, AND MY OPINION
CONCURRING IN THE RESULT IN WELSH V. UNITED STATES, 398 U.S. 333, 344
(1970). 

ACCORDINGLY I AM CONSTRAINED TO AGREE WITH THE COURT'S CONCLUSION
THAT PETITIONERS' CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN ALABAMA
REFUSED TO APPOINT COUNSEL TO REPRESENT THEM AT THE PRELIMINARY
HEARINGS.  I DISSENT, HOWEVER, FROM THE TERMS OF THE COURT'S REMAND ON
THIS ISSUE, AS WELL AS FROM THE REFUSAL TO ACCORD PETITIONERS THE
BENEFIT OF THE WADE CASE IN CONNECTION WITH THEIR POLICE "LINEUP"
CONTENTIONS. 

        I 

IT WOULD INDEED BE STRANGE WERE THIS COURT, HAVING HELD A SUSPECT OR
AN ACCUSED ENTITLED TO COUNSEL AT SUCH PRETRIAL STAGES AS "IN-CUSTODY"
POLICE INVESTIGATION, WHETHER AT THE STATION HOUSE (MIRANDA) OR EVEN IN
THE HOME (OROZCO), NOW TO HOLD THAT HE IS LEFT TO FEND FOR HIMSELF AT
THE FIRST FORMAL CONFRONTATION IN THE COURTROOM. 

WHILE, GIVEN THE CASES REFERRED TO, I CANNOT ESCAPE THE CONCLUSION
THAT PETITIONERS' CONSTITUTIONAL RIGHTS MUST BE HELD TO HAVE BEEN
VIOLATED BY DENYING THEM APPOINTED COUNSEL AT THE PRELIMINARY HEARING,
I CONSIDER THE SCOPE OF THE COURT'S REMAND TOO BROAD AND AMORPHOUS.  I
DO NOT THINK THAT REVERSAL OF THESE CONVICTIONS, FOR LACK OF COUNSEL AT
THE PRELIMINARY HEARING, SHOULD FOLLOW UNLESS PETITIONERS ARE ABLE TO
SHOW ON REMAND THAT THEY HAVE BEEN PREJUDICED IN THEIR DEFENSE AT
TRIAL, IN THAT FAVORABLE TESTIMONY THAT MIGHT OTHERWISE HAVE BEEN
PRESERVED WAS IRRETRIEVABLY LOST BY VIRTUE OF NOT HAVING COUNSEL TO
HELP PRESENT AN AFFIRMATIVE CASE AT THE PRELIMINARY HEARING.  IN THIS
REGARD, OF COURSE, AS WITH ANY OTHER ERRONEOUSLY EXCLUDED TESTIMONY,
PETITIONERS WOULD HAVE TO SHOW THAT ITS WEIGHT AT TRIAL WOULD HAVE BEEN
SUCH AS TO CONSTITUTE ITS "EXCLUSION" REVERSIBLE ERROR, AS WELL AS
DEMONSTRATE THE ACTUAL LIKELIHOOD THAT SUCH TESTIMONY COULD HAVE BEEN
PRESENTED AND PRESERVED AT THE PRELIMINARY HEARING.  IN MY OPINION MERE
SPECULATION THAT DEFENSE COUNSEL MIGHT HAVE BEEN ABLE TO DO BETTER AT
TRIAL HAD HE BEEN PRESENT AT THE PRELIMINARY HEARING SHOULD NOT SUFFICE
TO VITIATE A CONVICTION.  THE COURT'S REMAND UNDER THE CHAPMAN HARMLESS
ERROR RULE SEEMS TO ME TO LEAVE THE WAY OPEN FOR THAT SORT OF
SPECULATION. 

        II 

DESPITE MY CONTINUING DISAGREEMENT WITH UNITED STATES V. WADE,
SUPRA, I MUST DISSENT FROM THE REFUSAL TO ACCORD PETITIONERS THE
BENEFIT OF THE WADE HOLDING, NEITHER PETITIONER HAVING BEEN AFFORDED
COUNSEL AT THE POLICE "LINEUP" IDENTIFICATION.  THE MAJORITY'S ACTION
RESULTS FROM THE HOLDING IN STOVALL V. DENNO, 388 U.S. 293 (1967),
MAKING WADE APPLICABLE ONLY TO LINEUPS OCCURRING AFTER THE DATE OF THAT
DECISION, THE PRESENT LINEUP HAVING TAKEN PLACE WELL BEFORE.  FOR
REASONS EXPLAINED IN MY DISSENT IN DESIST V. UNITED STATES, 394 U.S.
244, 256 (1969), I CAN NO LONGER FOLLOW THE "RETROACTIVITY"  DOCTRINE
ANNOUNCED IN STOVALL IN CASES BEFORE US ON DIRECT REVIEW.  THAT BEING
THE SITUATION HERE, I WOULD JUDGE THE CASE IN LIGHT OF WADE. 

THE WADE RULE REQUIRES THE EXCLUSION OF ANY IN-COURT IDENTIFICATION
PRECEDED BY A PRETRIAL LINEUP WHERE THE ACCUSED WAS NOT REPRESENTED BY
COUNSEL, UNLESS THE IN-COURT IDENTIFICATION IS FOUND TO BE DERIVED FROM
A SOURCE "INDEPENDENT" OF THE TAINTED PRETRIAL VIEWING.  SUCH A
DETERMINATION MUST, IN THE FIRST INSTANCE, BE MADE BY THE TRIAL COURT. 
I WOULD THEREFORE SEND THE CASE BACK ON THIS SCORE TOO. 

/1/  FROM THE STANDPOINT OF FOURTEENTH AMENDMENT DUE PROCESS, WHICH
IS THE WAY IN WHICH I THINK STATE CASES OF THIS KIND SHOULD BE JUDGED
(SEE, E.G., MY CONCURRING OPINION IN GIDEON V. WAINWRIGHT, 372 U.S.
335, 349 (1963)), I COULD NOT HAVE SAID THAT THE DENIAL OF APPOINTED
COUNSEL AT A PRELIMINARY HEARING, CARRYING NO CONSEQUENCES BEYOND THOSE
INVOLVED IN THE ALABAMA PROCEDURE, IS OFFENSIVE TO THE CONCEPT OF
"FUNDAMENTAL FAIRNESS" EMBODIED IN THE DUE PROCESS CLAUSE.  THE CASE
WOULD, OF COURSE, BE DIFFERENT IF THE STATE WERE PERMITTED TO INTRODUCE
AT TRIAL EVIDENCE COLLECTED AND PRESENTED AT THE PRELIMINARY HEARING. 
A FORTIORI, I WOULD NOT HAVE THOUGHT THAT THE LACK OF COUNSEL AT A
POLICE "LINE-UP" IS, AS HELD IN UNITED STATES V. WADE, 388 U.S. 218
(1967), A DENIAL OF DUE PROCESS SUCH AS TO REQUIRE REVERSAL.  EVEN FROM
THE STANDPOINT OF THE SIXTH AMENDMENT, I WOULD HAVE FOUND IT DIFFICULT
TO SAY THAT THE LANGUAGE, "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED
SHALL ENJOY THE RIGHT . . . TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENCE", WAS INTENDED TO REACH SUCH PRE-INDICTMENT EVENTS.  CF.
SANDERS V. UNITED STATES, 373 U.S. 1, 23 (1963).     MR. CHIEF JUSTICE
BURGER, DISSENTING. 

I AGREE THAT AS A MATTER OF SOUND POLICY COUNSEL SHOULD BE MADE
AVAILABLE TO ALL PERSONS SUBJECTED TO A PRELIMINARY HEARING AND THAT
THIS SHOULD BE PROVIDED EITHER BY STATUTE OR BY THE RULEMAKING
PROCESS.  HOWEVER, I CANNOT ACCEPT THE NOTION THAT THE CONSTITUTION
COMMANDS IT BECAUSE IT IS A "CRIMINAL PROSECUTION."  /1/  ALTHOUGH MR.
JUSTICE STEWART, WHOSE OPINION I JOIN, AND MR. JUSTICE HARLAN AND MR.
JUSTICE WHITE HAVE EACH NOTED SOME OF THE DIFFICULTIES, BOTH ON
CONSTITUTIONAL AND PRACTICAL GROUNDS, WITH TODAY'S HOLDING, I
SEPARATELY SET FORTH ADDITIONAL REASONS FOR MY DISSENT.  /2/ 
CERTAINLY, AS MR. JUSTICE HARLAN AND MR. JUSTICE WHITE SUGGEST, NOT A
WORD IN THE CONSTITUTION ITSELF EITHER REQUIRES OR CONTEMPLATES THE
RESULT REACHED; UNLIKE THEM, HOWEVER, I DO NOT ACQUIESCE IN PRIOR
HOLDINGS THAT PURPORTEDLY, BUT NONETHELESS ERRONEOUSLY, ARE BASED ON
THE CONSTITUTION.  THAT APPROACH SIMPLY IS AN ACKNOWLEDGEMENT THAT THE
COURT HAVING PREVIOUSLY AMENDED THE SIXTH AMENDMENT NOW FEELS BOUND BY
ITS ACTION.  WHILE I DO NOT RELY SOLELY ON 183 YEARS OF CONTRARY
CONSTITUTIONAL INTERPRETATION, IT IS INDEED AN OLD BUSINESS THAT IT HAS
TAKEN THIS COURT NEARLY TWO CENTURIES TO "DISCOVER" A CONSTITUTIONAL
MANDATE TO HAVE COUNSEL AT A PRELIMINARY HEARING.  HERE THERE IS NOT
EVEN THE EXCUSE THAT CONDITIONS HAVE CHANGED; THE PRELIMINARY HEARING
IS AN ANCIENT INSTITUTION. 

WITH DEFERENCE, THEN, I AM BOUND TO REJECT CATEGORICALLY MR. JUSTICE
HARLAN'S AND MR. JUSTICE WHITE'S THESIS THAT WHAT THE COURT SAID LATELY
CONTROLS OVER THE CONSTITUTION.  WHILE OUR HOLDINGS ARE ENTITLED TO
DEFERENCE I WILL NOT JOIN IN EMPLOYING RECENT CASES RATHER THAN THE
CONSTITUTION, TO BOOTSTRAP OURSELVES INTO A RESULT, EVEN THOUGH I AGREE
WITH THE OBJECTIVE OF HAVING COUNSEL AT PRELIMINARY HEARINGS.  BY
PLACING A PREMIUM ON "RECENT CASES" RATHER THAN THE LANGUAGE OF THE
CONSTITUTION, THE COURT MAKES IT DANGEROUSLY SIMPLE FOR FUTURE COURTS,
USING THE TECHNIQUE OF INTERPRETATION, TO OPERATE AS A "CONTINUING
CONSTITUTIONAL CONVENTION." 

I WISH TO MAKE CLEAR THAT MY DISAGREEMENT WITH THE PREVAILING
OPINION IS DIRECTED PRIMARILY AT ITS REASONING PROCESS, RATHER THAN
WITH THE BROAD SOCIAL AND LEGAL DESIRABILITY OF THE RESULT REACHED.  I
WOULD NOT DECIDE THAT THE CONSTITUTION COMMANDS THIS RESULT SIMPLY
BECAUSE I THINK IT IS A DESIRABLE ONE.  INDEED, THERE HAVE BEEN MANY
STUDIES, INCLUDING THAT OF THE AMERICAN BAR ASSOCIATION'S CRIMINAL
JUSTICE PROJECT, THAT ACKNOWLEDGED THE WISDOM OF PROVIDING COUNSEL AT
THE PRELIMINARY HEARING.  ABA PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, PROVIDING DEFENSE SERVICES SEC. 5.1 (APPROVED DRAFT 1968). 
BUT THIS SHOULD BE PROVIDED EITHER BY STATUTE OR BY THE RULEMAKING
PROCESS SINCE THE CONSTITUTION DOES NOT REQUIRE IT.  MR. JUSTICE WHITE,
WHILE JOINING THE PREVAILING OPINION WITH SOME RESERVATIONS, BELIES THE
ESSENCE OF THE MATTER WHEN HE STATES THAT "RECENT CASES FURNISH AMPLE
GROUND FOR HOLDING THE PRELIMINARY HEARING A CRITICAL EVENT IN THE
PROGRESS OF A CRIMINAL CASE." 

IF THE CONSTITUTION PROVIDED THAT COUNSEL BE FURNISHED FOR EVERY
"CRITICAL EVENT IN THE PROGRESS OF A CRIMINAL CASE," THAT WOULD BE
ANOTHER STORY, BUT IT DOES NOT.  IN CONTRAST TO THE VARIETY OF VERBAL
COMBINATIONS EMPLOYED BY THE MAJORITY TO JUSTIFY TODAY'S DISPOSITION,
THE SIXTH AMENDMENT STATES WITH LAUDABLE PRECISION THAT:  "IN ALL
CRIMINAL PROSECUTIONS, THE ACCUSED SHALL . . . HAVE THE ASSISTANCE OF
COUNSEL."  THE ONLY RELEVANT DETERMINATION IS WHETHER A PRELIMINARY
HEARING IS A "CRIMINAL PROSECUTION," NOT WHETHER IT IS A "CRITICAL
EVENT IN THE PROGRESS OF A CRIMINAL CASE."  BY INVENTING ITS OWN VERBAL
FORMULA THE PREVAILING OPINION SIMPLY SEEKS TO RESHAPE THE CONSTITUTION
IN ACCORDANCE WITH PREDILECTIONS OF WHAT IS DEEMED DESIRABLE. 
CONSTITUTIONAL INTERPRETATION IS NOT AN EASY MATTER, BUT WE SHOULD BE
ESPECIALLY CAUTIOUS ABOUT SUBSTITUTING OUR OWN NOTIONS FOR THOSE OF THE
FRAMERS.  I HEED MR. JUSTICE BLACK'S RECENT ADMONITION ON "THE
DIFFERENCE . . . BETWEEN OUR CONSTITUTION AS WRITTEN BY THE FOUNDERS
AND AN UNWRITTEN CONSTITUTION TO BE FORMULATED BY JUDGES ACCORDING TO
THEIR IDEAS OF FAIRNESS ON A CASE-BY-CASE BASIS."  NORTH CAROLINA V.
PEARCE, 395 U.S. 711, 744 (1969) (SEPARATE OPINION OF BLACK, J.). 

IN THE FEDERAL COURTS, AND AS PROVIDED BY STATUTE IN MOST STATES,
THE THREE STEPS THAT FOLLOW ARREST ARE (1) THE PRELIMINARY HEARING
UNDER FED. RULE CRIM. PROC. 5(C); (2) THE GRAND JURY INQUIRY; AND (3)
THE ARRAIGNMENT UNDER FED. RULE CRIM. PROC. 10.  WE KNOW, OF COURSE,
THAT IF THE HEARING OFFICER AT THE PRELIMINARY HEARING CONCLUDES TO
HOLD THE PERSON FOR POSSIBLE GRAND JURY ACTION COUNSEL IS NOT PERMITTED
TO ATTEND THE LATTER PROCEEDINGS.  IF THE GRAND JURY RETURNS AN
INDICTMENT, THE ACCUSED MUST THEN ENTER A PLEA AT ARRAIGNMENT, AND AT
THIS HEARING COUNSEL IS REQUIRED UNDER HAMILTON V. ALABAMA, 368 U.S. 52
(1961). 

IN ALABAMA, AS IN THE FEDERAL SYSTEM, THE PRELIMINARY HEARING HAS
BEEN AN INQUIRY INTO WHETHER THE ARRESTED PERSON SHOULD BE DISCHARGED
OR WHETHER, ON THE CONTRARY, THERE IS PROBABLE CAUSE TO SUBMIT EVIDENCE
TO A GRAND JURY OR OTHER CHARGING AUTHORITY FOR FURTHER CONSIDERATION. 
NO VERDICT CAN FLOW FROM THE HEARING MAGISTRATE'S DETERMINATION, AND A
DISCHARGE, UNLIKE AN ACQUITTAL, IS NO BAR TO A LATER INDICTMENT.  THUS
IT IS NOT A TRIAL IN ANY SENSE IN WHICH LAWYERS AND JUDGES USE THAT
TERM.  MOREOVER, THE HEARING MAGISTRATE CANNOT INDICT; HE CAN PASS ONLY
ON THE NARROW QUESTION OF WHETHER FURTHER INQUIRY IS WARRANTED. 
RECOGNIZING, HOWEVER, THAT THE PRELIMINARY HEARING IS NOT AN
UNIMPORTANT STEP IN "THE PROGRESS OF A CRIMINAL CASE," THIS COURT HAS
ALREADY HELD THAT DISCLOSURES OF AN UNCOUNSELED PERSON AT THE HEARING
MAY NOT BE USED AGAINST HIM IF HE IS LATER TRIED.  WHITE V. MARYLAND,
373 U.S. 59 (1963).  SEE ALSO POINTER V. TEXAS, 380 U.S. 400 (1965). 

UNDER TODAY'S HOLDING WE THUS HAVE SOMETHING OF AN ANOMALY UNDER THE
NEW "DISCOVERY" OF THE COURT THAT COUNSEL IS CONSTITUTIONALLY REQUIRED
AT THE PRELIMINARY HEARING SINCE COUNSEL CANNOT ATTEND A SUBSEQUENT
GRAND JURY INQUIRY, EVEN THOUGH WITNESSES, INCLUDING THE PERSON
EVENTUALLY CHARGED, MAY BE INTERROGATED IN SECRET SESSION.  IF THE
CURRENT MODE OF CONSTITUTIONAL ANALYSIS SUBSCRIBED TO BY THIS COURT IN
RECENT CASES REQUIRES THAT COUNSEL BE PRESENT AT PRELIMINARY HEARINGS,
HOW CAN THIS BE RECONCILED WITH THE FACT THAT THE CONSTITUTION ITSELF
DOES NOT PERMIT THE ASSISTANCE OF COUNSEL AT THE DECIDEDLY MORE
"CRITICAL" GRAND JURY INQUIRY? 

FINALLY, AS POINTED OUT, THE COURT HAS ALREADY PROTECTED AN ACCUSED
FROM ABSENCE OF COUNSEL AT THE PRELIMINARY HEARING BY PROVIDING THAT
STATEMENTS OF AN UNCOUNSELED PERSON ARE INADMISSIBLE AT TRIAL.  THE
PREVAILING OPINION FAILS TO EXPLAIN WHY THAT SALUTARY-- INDEED DRASTIC-
REMEDY IS NO LONGER SUFFICIENT PROTECTION FOR THE PRELIMINARY HEARING
STAGE, UNLESS WHAT THE COURT IS DOING-- SURREPTITIOUSLY-- IS TO CONVERT
THE PRELIMINARY HEARING INTO A DISCOVERY DEVICE.  BUT THE NEED FOR EVEN
THAT STEP IS LARGELY DISSIPATED BY THE PROPOSED AMENDMENTS FOR PRETRIAL
DISCOVERY IN CRIMINAL CASES.  SEE JUDICIAL CONFERENCE OF THE UNITED
STATES, COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, PROPOSED
AMENDMENTS TO THE FEDERAL RULES OF CRIMINAL PROCEDURE FOR UNITED STATES
DISTRICT COURTS (PRELIMINARY DRAFT, JAN. 1970). 

/1/  THE PERTINENT LANGUAGE IS:  "IN ALL CRIMINAL PROSECUTIONS, THE
ACCUSED SHALL ENJOY . . . THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

/2/  I CONCUR IN THE CONCLUSION THAT DUE PROCESS WAS NOT VIOLATED BY
THE IDENTIFICATION PROCEDURES EMPLOYED HERE. 

MR. JUSTICE STEWART, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

ON A JULY NIGHT IN 1966 CASEY REYNOLDS AND HIS WIFE STOPPED THEIR
CAR ON GREEN SPRINGS HIGHWAY IN BIRMINGHAM, ALABAMA, IN ORDER TO CHANGE
A FLAT TIRE.  THEY WERE SOON ACCOSTED BY THREE MEN WHOSE EVIDENT
PURPOSE WAS ARMED ROBBERY AND RAPE.  THE ASSAILANTS SHOT REYNOLDS TWICE
BEFORE THEY WERE FRIGHTENED AWAY BY THE LIGHTS OF A PASSING
AUTOMOBILE.  SOME TWO MONTHS LATER THE PETITIONERS WERE ARRESTED, AND
LATER IDENTIFIED BY REYNOLDS AS TWO OF THE THREE MEN WHO HAD ASSAULTED
HIM AND HIS WIFE. 

A FEW DAYS LATER THE PETITIONERS WERE GRANTED A PRELIMINARY HEARING
BEFORE A COUNTY JUDGE.  AT THIS HEARING THE PETITIONERS WERE NEITHER
REQUIRED NOR PERMITTED TO ENTER ANY PLEA.  THE SOLE PURPOSE OF SUCH A
HEARING IN ALABAMA IS TO DETERMINE WHETHER THERE IS SUFFICIENT EVIDENCE
AGAINST THE ACCUSED TO WARRANT PRESENTING THE CASE TO A GRAND JURY,
AND, IF SO, TO FIX BAIL IF THE OFFENSE IS BAILABLE.  /1/  AT THE
CONCLUSION OF THE HEARING THE PETITIONERS WERE BOUND OVER TO THE GRAND
JURY, AND THEIR BOND WAS SET AT $10,000.  NO RECORD OR TRANSCRIPT OF
ANY KIND WAS MADE OF THE HEARING. 

LESS THAN A MONTH LATER THE GRAND JURY RETURNED AN INDICTMENT
AGAINST THE PETITIONERS, CHARGING THEM WITH ASSAULT TO COMMIT MURDER. 
PROMPTLY AFTER THEIR INDICTMENT, A LAWYER WAS APPOINTED TO REPRESENT
THEM.  AT THEIR ARRAIGNMENT TWO WEEKS LATER, WHERE THEY WERE
REPRESENTED BY THEIR APPOINTED COUNSEL, THEY ENTERED A PLEA OF NOT
GUILTY.  CF. HAMILTON V. ALABAMA, 368 U.S. 52.  SOME MONTHS LATER THEY
WERE BROUGHT TO TRIAL, AGAIN REPRESENTED BY APPOINTED COUNSEL.  CF.
GIDEON V. WAINWRIGHT, 372 U.S. 335.  THE JURY FOUND THEM GUILTY AS
CHARGED, AND THEY WERE SENTENCED TO THE PENITENTIARY. 

IF AT THE TRIAL THE PROSECUTION HAD USED ANY INCRIMINATING
STATEMENTS MADE BY THE PETITIONERS AT THE PRELIMINARY HEARING, THE
CONVICTIONS BEFORE US WOULD QUITE PROPERLY HAVE TO BE SET ASIDE.  WHITE
V. MARYLAND, 373 U.S. 59.  BUT THAT DID NOT HAPPEN IN THIS CASE.  OR IF
THE PROSECUTION HAD USED THE STATEMENT OF ANY OTHER WITNESS AT THE
PRELIMINARY HEARING AGAINST THE PETITIONERS AT THEIR TRIAL, WE WOULD
LIKEWISE QUITE PROPERLY HAVE TO SET ASIDE THESE CONVICTIONS.  POINTER
V. TEXAS, 380 U.S. 400.  BUT THAT DID NOT HAPPEN IN THIS CASE EITHER. 
FOR, AS THE PREVAILING OPINION TODAY PERFORCE CONCEDES, "THE
PROHIBITION AGAINST USE BY THE STATE AT TRIAL OF ANYTHING THAT OCCURRED
AT THE PRELIMINARY HEARING WAS SCRUPULOUSLY OBSERVED." 

NEVERTHELESS, THE COURT SETS ASIDE THE CONVICTIONS BECAUSE, IT SAYS,
COUNSEL SHOULD HAVE BEEN PROVIDED FOR THE PETITIONERS AT THE
PRELIMINARY HEARING.  NONE OF THE CASES RELIED UPON IN THAT OPINION
POINTS TO ANY SUCH RESULT.  EVEN THE MIRANDA DECISION DOES NOT REQUIRE
COUNSEL TO BE PRESENT AT "PRETRIAL CUSTODIAL INTERROGATION."  THAT CASE
SIMPLY HELD THAT THE CONSTITUTIONAL GUARANTEE AGAINST COMPULSORY SELF
INCRIMINATION PROHIBITS THE INTRODUCTION AT THE TRIAL OF STATEMENTS
MADE BY THE DEFENDANT DURING CUSTODIAL INTERROGATION IF THE MIRANDA
"GUIDELINES" WERE NOT FOLLOWED.  384 U.S. 436.  SEE ALSO UNITED STATES
V. WADE, 388 U.S. 218; GILBERT V. CALIFORNIA, 388 U.S. 263.  AND I
REPEAT THAT IN THIS CASE NO EVIDENCE OF ANYTHING SAID OR DONE AT THE
PRELIMINARY HEARING WAS INTRODUCED AT THE PETITIONERS' TRIAL. 

BUT THE PREVAILING OPINION HOLDS TODAY THAT THE CONSTITUTION
REQUIRED ALABAMA TO PROVIDE A LAWYER FOR THE PETITIONERS AT THEIR
PRELIMINARY HEARING, NOT SO MUCH, IT SEEMS, TO ASSURE A FAIR TRIAL AS
TO ASSURE A FAIR PRELIMINARY HEARING.  A LAWYER AT THE PRELIMINARY
HEARING, THE OPINION SAYS, MIGHT HAVE LED THE MAGISTRATE TO "REFUSE TO
BIND THE ACCUSED OVER."  OR A LAWYER MIGHT HAVE MADE "EFFECTIVE
ARGUMENTS FOR THE ACCUSED ON SUCH MATTERS AS THE NECESSITY FOR AN EARLY
PSYCHIATRIC EXAMINATION OR BAIL." 

IF THOSE ARE THE REASONS A LAWYER MUST BE PROVIDED, THEN THE MOST
ELEMENTARY LOGIC REQUIRES THAT A NEW PRELIMINARY HEARING MUST NOW BE
HELD, WITH COUNSEL MADE AVAILABLE TO THE PETITIONERS.  IN ORDER TO
PROVIDE SUCH RELIEF, IT WOULD, OF COURSE, BE NECESSARY NOT ONLY TO SET
ASIDE THESE CONVICTIONS, BUT ALSO TO SET ASIDE THE GRAND JURY
INDICTMENTS, AND THE MAGISTRATE'S ORDERS FIXING BAIL AND BINDING OVER
THE PETITIONERS.  SINCE THE PETITIONERS HAVE NOW BEEN FOUND BY A JURY
IN A CONSTITUTIONAL TRIAL /2/  TO BE GUILTY BEYOND A REASONABLE DOUBT,
THE PREVAILING OPINION UNDERSTANDABLY BOGGLES AT THESE LOGICAL
CONSEQUENCES OF THE REASONING THEREIN.  IT REFRAINS, IN SHORT, FROM NOW
TURNING BACK THE CLOCK BY ORDERING A NEW PRELIMINARY HEARING TO
DETERMINE ALL OVER AGAIN WHETHER THERE IS SUFFICIENT EVIDENCE AGAINST
THE ACCUSED TO PRESENT THEIR CASE TO A GRAND JURY.  INSTEAD, THE COURT
SETS ASIDE THESE CONVICTIONS AND REMANDS THE CASE FOR DETERMINATION
"WHETHER THE CONVICTIONS SHOULD BE REINSTATED OR A NEW TRIAL ORDERED,"
AND THIS ACTION SEEMS TO ME EVEN MORE QUIXOTIC. 

THE PETITIONERS HAVE SIMPLY NOT ALLEGED THAT ANYTHING THAT HAPPENED
AT THE PRELIMINARY HEARING TURNED OUT IN THIS CASE TO BE CRITICAL TO
THE FAIRNESS OF THEIR TRIAL.  THEY HAVE NOT ALLEGED THAT THEY WERE
AFFIRMATIVELY PREJUDICED AT THE TRIAL BY ANYTHING THAT OCCURRED AT THE
PRELIMINARY HEARING.  THEY HAVE NOT POINTED TO ANY AFFIRMATIVE
ADVANTAGE THEY WOULD HAVE ENJOYED AT THE TRIAL IF THEY HAD HAD A LAWYER
AT THEIR PRELIMINARY HEARING. 

NO RECORD OR TRANSCRIPT OF ANY KIND WAS MADE OF THE PRELIMINARY
HEARING.  THEREFORE, IF THE BURDEN ON REMAND IS ON THE PETITIONERS TO
SHOW THAT THEY WERE PREJUDICED, IT IS CLEAR THAT THAT BURDEN CANNOT BE
MET, AND THE REMAND IS A FUTILE GESTURE.  IF, ON THE OTHER HAND, THE
BURDEN IS ON THE STATE TO DISPROVE BEYOND A REASONABLE DOUBT ANY AND
ALL SPECULATIVE ADVANTAGES THAT THE PETITIONERS MIGHT CONCEIVABLY HAVE
ENJOYED IF COUNSEL HAD BEEN PRESENT AT THEIR PRELIMINARY HEARING, THEN
OBVIOUSLY THAT BURDEN CANNOT BE MET EITHER, AND THE COURT SHOULD SIMPLY
REVERSE THESE CONVICTIONS.  ALL I CAN SAY IS THAT IF THE ALABAMA COURTS
CAN FIGURE OUT WHAT THEY ARE SUPPOSED TO DO WITH THIS CASE NOW THAT IT
HAS BEEN REMANDED TO THEM, THEIR PERCEPTIVENESS WILL FAR EXCEED MINE. 
THE RECORD BEFORE US MAKES CLEAR THAT NO EVIDENCE OF WHAT OCCURRED AT
THE PRELIMINARY HEARING WAS USED AGAINST THE PETITIONERS AT THEIR NOW
COMPLETED TRIAL.  I WOULD HOLD, THEREFORE, THAT THE ABSENCE OF COUNSEL
AT THE PRELIMINARY HEARING DEPRIVED THE PETITIONERS OF NO
CONSTITUTIONAL RIGHTS.  ACCORDINGLY, I WOULD AFFIRM THESE CONVICTIONS. 

/1/  ALA. CODE, TIT. 15, SECS. 133-140 (1958). 

/2/  I AGREE WITH THE RESULT REACHED IN PART I OF THE PREVAILING
OPINION. 

CHARLES TARTER, BY APPOINTMENT OF THE COURT, 394 U.S. 1011, ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONERS.     DAVID W. CLARK,
ASSISTANT ATTORNEY GENERAL OF ALABAMA, ARGUED THE CAUSE FOR
RESPONDENT.  WITH HIM ON THE BRIEF WAS MACDONALD GALLION, ATTORNEY
GENERAL. 
..END :



VALE V. LOUISIANA, 399 U.S. 30 


       VALE V. LOUISIANA

        APPEAL FROM THE SUPREME COURT OF LOUISIANA

        NO. 727.  ARGUED MARCH 4-5, 1970-- DECIDED JUNE 22, 1970 


POLICE OFFICERS, POSSESSING WARRANTS FOR APPELLANT'S ARREST, WERE
WATCHING THE HOUSE WHERE HE RESIDED.  THEY OBSERVED WHAT THEY SUSPECTED
WAS AN EXCHANGE OF NARCOTICS BETWEEN A KNOWN ADDICT AND APPELLANT
OUTSIDE THE HOUSE, AFTER APPELLANT HAD GONE INTO THE HOUSE AND BROUGHT
SOMETHING OUT TO THE ADDICT.  THEY ARRESTED APPELLANT AT THE FRONT
STEPS AND ANNOUNCED THAT THEY WOULD SEARCH THE HOUSE.  A SEARCH OF THE
THEN-UNOCCUPIED HOUSE DISCLOSED NARCOTICS IN A BEDROOM.  THE LOUISIANA
SUPREME COURT, AFFIRMING APPELLANT'S CONVICTION FOR POSSESSING HEROIN,
HELD THAT THE SEARCH DID NOT VIOLATE THE FOURTH AMENDMENT, AS IT
OCCURRED "IN THE IMMEDIATE VICINITY OF THE ARREST" AND WAS
"SUBSTANTIALLY CONTEMPORANEOUS THEREWITH."  CONSIDERATION BY THIS COURT
OF THE QUESTION OF JURISDICTION WAS POSTPONED TO THE HEARING OF THE
CASE ON THE MERITS.  HELD:  THE WARRANTLESS SEARCH OF APPELLANT'S HOUSE
VIOLATED THE FOURTH AMENDMENT AS MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT.  PP. 33-35. 

(A) EVEN IF CHIMEL V. CALIFORNIA, 395 U.S. 752, HOLDING THAT THE
WARRANTLESS SEARCH OF A HOUSE CAN BE JUSTIFIED AS INCIDENT TO A LAWFUL
ARREST ONLY IF CONFINED TO THE AREA WITHIN THE ARRESTEE'S REACH, WERE
GIVEN RETROACTIVE EFFECT (A QUESTION NOT DECIDED HERE), THERE IS NO
PRECEDENT OF THIS COURT TO SUSTAIN THE VALIDITY OF THIS SEARCH.  P.
33. 

(B) IF A SEARCH OF A HOUSE IS TO BE UPHELD AS INCIDENT TO AN ARREST,
THE ARREST MUST TAKE PLACE INSIDE THE HOUSE.  PP. 33-34. 

(C) A WARRANTLESS SEARCH OF A DWELLING IS CONSTITUTIONALLY VALID
ONLY IN "A FEW SPECIFICALLY ESTABLISHED AND WELL-DELINEATED
EXCEPTIONS," NONE OF WHICH THE STATE HAS SHOWN HERE; AND THE SEARCH
CANNOT BE JUSTIFIED SOLELY BECAUSE NARCOTICS, WHICH ARE EASILY
DESTROYED, ARE INVOLVED.  PP. 34-35. 

APPEAL DISMISSED AND CERTIORARI GRANTED; 252 LA. 1056, 215 SO.2D
811, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, DONALD VALE, WAS CONVICTED IN A LOUISIANA COURT ON A
CHARGE OF POSSESSING HEROIN AND WAS SENTENCED AS A MULTIPLE OFFENDER TO
15 YEARS' IMPRISONMENT AT HARD LABOR.  THE LOUISIANA SUPREME COURT
AFFIRMED THE CONVICTION, REJECTING THE CLAIM THAT EVIDENCE INTRODUCED
AT THE TRIAL WAS THE PRODUCT OF AN UNLAWFUL SEARCH AND SEIZURE.  252
LA. 1056, 215 SO.2D 811.  WE GRANTED VALE'S MOTION TO PROCEED IN FORMA
PAUPERIS, POSTPONED CONSIDERATION OF THE QUESTION OF JURISDICTION TO
THE HEARING OF THE CASE ON THE MERITS, AND LIMITED REVIEW TO THE SEARCH
AND-SEIZURE QUESTION.  396 U.S. 813.  /1/ 

THE EVIDENCE ADDUCED AT THE PRETRIAL HEARING ON A MOTION TO SUPPRESS
SHOWED THAT ON APRIL 24, 1967, OFFICERS POSSESSING TWO WARRANTS FOR
VALE'S ARREST AND HAVING INFORMATION THAT HE WAS RESIDING AT A
SPECIFIED ADDRESS PROCEEDED THERE IN AN UNMARKED CAR AND SET UP A
SURVEILLANCE OF THE HOUSE.  THE EVIDENCE OF WHAT THEN TOOK PLACE WAS
SUMMARIZED BY THE LOUISIANA SUPREME COURT AS FOLLOWS: 

"AFTER APPROXIMATELY 15 MINUTES THE OFFICERS OBSERVED A GREEN 1958
CHEVROLET DRIVE UP AND SOUND THE HORN AND AFTER BACKING INTO A PARKING
PLACE, AGAIN BLEW THE HORN.  AT THIS JUNCTURE DONALD VALE, WHO WAS WELL
KNOWN TO OFFICER BRADY HAVING ARRESTED HIM TWICE IN THE PREVIOUS MONTH,
WAS SEEN COMING OUT OF THE HOUSE AND WALK UP TO THE PASSENGER SIDE OF
THE CHEVROLET WHERE HE HAD A CLOSE BRIEF CONVERSATION WITH THE DRIVER;
AND AFTER LOOKING UP AND DOWN THE STREET RETURNED INSIDE OF THE HOUSE. 
WITHIN A FEW MINUTES HE REAPPEARED ON THE PORCH, AND AGAIN CAUTIOUSLY
LOOKED UP AND DOWN THE STREET BEFORE PROCEEDING TO THE PASSENGER SIDE
OF THE CHEVROLET, LEANING THROUGH THE WINDOW.  FROM THIS THE OFFICERS
WERE CONVINCED A NARCOTICS SALE HAD TAKEN PLACE.  THEY RETURNED TO
THEIR CAR AND IMMEDIATELY DROVE TOWARD DONALD VALE, AND AS THEY REACHED
WITHIN APPROXIMATELY THREE CARS LENGTHS FROM THE ACCUSED, (DONALD VALE)
HE LOOKED UP AND, OBVIOUSLY RECOGNIZING THE OFFICERS, TURNED AROUND,
WALING QUICKLY TOWARD THE HOUSE.  AT THE SAME TIME THE DRIVER OF THE
CHEVROLET STARTED TO MAKE HIS GET AWAY WHEN THE CAR WAS BLOCKED BY THE
POLICE VEHICLE.  THE THREE OFFICERS PROMPTLY ALIGHTED FROM THE CAR,
WHEREUPON OFFICERS SOULE AND LAUMANN CALLED TO DONALD VALE TO STOP AS
HE REACHED THE FRONT STEPS OF THE HOUSE, TELLING HIM HE WAS UNDER
ARREST.  OFFICER BRADY AT THE SAME TIME, SEEING THE DRIVER OF THE
CHEVROLET, ARIZZIO SAUCIER, WHOM THE OFFICERS KNEW TO BE A NARCOTIC
ADDICT, PLACE SOMETHING HURRIEDLY IN HIS MOUTH, IMMEDIATELY PLACED HIM
UNDER ARREST AND JOINED HIS CO-OFFICERS.  BECAUSE OF THE TRANSACTION
THEY HAD JUST OBSERVED THEY, INFORMED DONALD VALE THEY WERE GOING TO
SEARCH THE HOUSE, AND THEREUPON ADVISED HIM OF HIS CONSTITUTIONAL
RIGHTS.  AFTER THEY ALL ENTERED THE FRONT ROOM, OFFICER LAUMANN MADE A
CURSORY INSPECTION OF THE HOUSE TO ASCERTAIN IF ANYONE ELSE WAS PRESENT
AND WITHIN ABOUT THREE MINUTES MRS. VALE AND JAMES VALE, MOTHER AND
BROTHER OF DONALD VALE, RETURNED HOME CARRYING GROCERIES AND WERE
INFORMED OF THE ARREST AND IMPENDING SEARCH."  252 LA.,AT 1067-1068,
215 SO.2D, AT 815.  (FOOTNOTE OMITTED.)  THE SEARCH OF A REAR BEDROOM
REVEALED A QUANTITY OF NARCOTICS. 

THE LOUISIANA SUPREME COURT HELD THAT THE SEARCH OF THE HOUSE DID
NOT VIOLATE THE FOURTH AMENDMENT BECAUSE IT OCCURRED "IN THE IMMEDIATE
VICINITY OF THE ARREST" OF DONALD VALE AND WAS "SUBSTANTIALLY
CONTEMPORANEOUS THEREWITH . . . "  252 LA.,AT 1070, 215 SO.2D, AT 816. 
WE CANNOT AGREE.  LAST TERM IN CHIMEL V. CALIFORNIA, 395 U.S. 752, WE
HELD THAT WHEN THE SEARCH OF A DWELLING IS SOUGHT TO BE JUSTIFIED AS
INCIDENT TO A LAWFUL ARREST, IT MUST CONSTITUTIONALLY BE CONFINED TO
THE AREA WITHIN THE ARRESTEE'S REACH AT THE TIME OF HIS ARREST-- "THE
AREA FROM WITHIN WHICH HE MIGHT GAIN POSSESSION OF A WEAPON OR
DESTRUCTIBLE EVIDENCE."  395 U.S.,AT 763.  BUT EVEN IF CHIMEL IS NOT
ACCORDED RETROACTIVE EFFECT-- A QUESTION ON WHICH WE DO NOT NOW EXPRESS
AN OPINION-- NO PRECEDENT OF THIS COURT CAN SUSTAIN THE CONSTITUTIONAL
VALIDITY OF THE SEARCH IN THE CASE BEFORE US.

A SEARCH MAY BE INCIDENT TO AN ARREST "'ONLY IF IT IS SUBSTANTIALLY
CONTEMPORANEOUS WITH THE ARREST AND IS CONFINED TO THE IMMEDIATE
VICINITY OF THE ARREST.'"  SHIPLEY V. CALIFORNIA, 395 U.S. 818, 819;
STONER V. CALIFORNIA, 376 U.S. 483, 486.  IF A SEARCH OF A HOUSE IS TO
BE UPHELD AS INCIDENT TO AN ARREST, THAT ARREST MUST TAKE PLACE INSIDE
THE HOUSE, CF. AGNELLO V. UNITED STATES, 269 U.S. 20, 32, NOT SOMEWHERE
OUTSIDE-- WHETHER TWO BLOCKS AWAY, JAMES V. LOUISIANA, 382 U.S. 36,
TWENTY FEET AWAY, SHIPLEY V. CALIFORNIA, SUPRA, OR ON THE SIDEWALK NEAR
THE FRONT STEPS.  "BELIEF, HOWEVER WELL FOUNDED, THAT AN ARTICLE SOUGHT
IS CONCEALED IN A DWELLING HOUSE FURNISHES NO JUSTIFICATION FOR A
SEARCH OF THAT PLACE WITHOUT A WARRANT."  AGNELLO V. UNITED STATES,
SUPRA, AT 33.  THAT BASIC RULE "HAS NEVER BEEN QUESTIONED IN THIS
COURT."  STONER V. CALIFORNIA, SUPRA, AT 487 N. 5. 

THE LOUISIANA SUPREME COURT THOUGHT THE SEARCH INDEPENDENTLY
SUPPORTABLE BECAUSE IT INVOLVED NARCOTICS, WHICH ARE EASILY REMOVED,
HIDDEN, OR DESTROYED.  IT WOULD BE UNREASONABLE, THE LOUISIANA COURT
CONCLUDED, "TO REQUIRE THE OFFICERS UNDER THE FACTS OF THE CASE TO
FIRST SECURE A SEARCH WARRANT BEFORE SEARCHING THE PREMISES, AS TIME IS
OF THE ESSENCE INASMUCH AS THE OFFICERS NEVER KNOW WHETHER THERE IS
ANYONE ON THE PREMISES TO BE SEARCHED WHO COULD VERY EASILY DESTROY THE
EVIDENCE."  252 LA.,AT 1070, 215 SO.2D, AT 816.  SUCH A RATIONALE COULD
NOT APPLY TO THE PRESENT CASE, SINCE BY THEIR OWN ACCOUNT THE ARRESTING
OFFICERS SATISFIED THEMSELVES THAT NO ONE ELSE WAS IN THE HOUSE WHEN
THEY FIRST ENTERED THE PREMISES.  BUT ENTIRELY APART FROM THAT POINT,
OUR PAST DECISIONS MAKE CLEAR THAT ONLY IN "A FEW SPECIFICALLY
ESTABLISHED AND WELL-DELINEATED" SITUATIONS, KATZ V. UNITED STATES, 389
U.S. 347, 357, MAY A WARRANTLESS SEARCH OF A DWELLING WITHSTAND
CONSTITUTIONAL SCRUTINY, EVEN THOUGH THE AUTHORITIES HAVE PROBABLE
CAUSE TO CONDUCT IT.  THE BURDEN RESTS ON THE STATE TO SHOW THE
EXISTENCE OF SUCH AN EXCEPTIONAL SITUATION.  CHIMEL V. CALIFORNIA,
SUPRA, AT 762; UNITED STATES V. JEFFERS, 342 U.S. 48, 51; MCDONALD V.
UNITED STATES, 335 U.S. 451, 456.  AND THE RECORD BEFORE US DISCLOSES
NONE. 

THERE IS NO SUGGESTION THAT ANYONE CONSENTED TO THE SEARCH.  CF. ZAP
V. UNITED STATES, 328 U.S. 624, 628.  THE OFFICERS WERE NOT RESPONDING
TO AN EMERGENCY.  UNITED STATES V. JEFFERS, SUPRA, AT 52; MCDONALD V.
UNITED STATES, SUPRA, AT 454.  THEY WERE NOT IN HOT PURSUIT OF A
FLEEING FELON.  WARDEN V. HAYDEN, 387 U.S. 294, 298-299; CHAPMAN V.
UNITED STATES, 365 U.S. 610, 615; JOHNSON V. UNITED STATES, 333 U.S.
10, 15.  THE GOODS ULTIMATELY SEIZED WERE NOT IN THE PROCESS OF
DESTRUCTION.  SCHMERBER V. CALIFORNIA, 384 U.S. 757, 770-771; UNITED
STATES V. JEFFERS, SUPRA; MCDONALD V. UNITED STATES, SUPRA, AT 455. 
NOR WERE THEY ABOUT TO BE REMOVED FROM THE JURISDICTION.  CHAPMAN V.
UNITED STATES, SUPRA; JOHNSON V. UNITED STATES, SUPRA; UNITED STATES V.
JEFFERS, SUPRA. 

THE OFFICERS WERE ABLE TO PROCURE TWO WARRANTS FOR VALE'S ARREST. 
THEY ALSO HAD INFORMATION THAT HE WAS RESIDING AT THE ADDRESS WHERE
THEY FOUND HIM.  THERE IS THUS NO REASON, SO FAR AS ANYTHING BEFORE US
APPEARS, TO SUPPOSE THAT IT WAS IMPRACTICABLE FOR THEM TO OBTAIN A
SEARCH WARRANT AS WELL.  CF. MCDONALD V. UNITED STATES, SUPRA, AT 454
455; TRUPIANO V. UNITED STATES, 334 U.S. 699, 705-706; JOHNSON V.
UNITED STATES, SUPRA; TAYLOR V. UNITED STATES, 286 U.S. 1, 6; GO-BART
IMPORTING CO. V. UNITED STATES, 282 U.S. 344, 358; CARROLL V. UNITED
STATES, 267 U.S. 132, 156; CF. KER V. CALIFORNIA, 374 U.S. 23, 42
(OPINION OF CLARK, J.).  WE DECLINE TO HOLD THAT AN ARREST ON THE
STREET CAN PROVIDE ITS OWN "EXIGENT CIRCUMSTANCE" SO AS TO JUSTIFY A
WARRANTLESS SEARCH OF THE ARRESTEE'S HOUSE. 

THE LOUISIANA COURTS COMMITTED CONSTITUTIONAL ERROR IN ADMITTING
INTO EVIDENCE THE FRUITS OF THE ILLEGAL SEARCH.  SHIPLEY V. CALIFORNIA,
SUPRA, AT 819; JAMES V. LOUISIANA, SUPRA, AT 37; KER V. CALIFORNIA,
SUPRA, AT 30-34; MAPP V. OHIO, 367 U.S. 643.  ACCORDINGLY, THE JUDGMENT
IS REVERSED AND THE CASE IS REMANDED TO THE LOUISIANA SUPREME COURT FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

   IT IS SO ORDERED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  IN HIS NOTICE OF APPEAL, VALE ASSERTED THAT THE LOUISIANA
SUPREME COURT IN AFFIRMING THE CONVICTION HAD RELIED UPON A STATE
STATUTE, ARTICLE 225 OF THE LOUISIANA CODE OF CRIMINAL PROCEDURE
(1967), WHICH PROVIDES IN PERTINENT PART: 

"A PEACE OFFICER MAKING AN ARREST SHALL TAKE FROM THE PERSON
ARRESTED ALL WEAPONS AND INCRIMINATING ARTICLES WHICH HE MAY HAVE ABOUT
HIS PERSON." 

ALTHOUGH THE STATE COURT REFERRED TO THIS STATUTE IN THE COURSE OF
ITS OPINION, WE DO NOT UNDERSTAND ITS DECISION TO BE GROUNDED ON THE
STATUTE.  WE THEREFORE DISMISS THE APPEAL AND TREAT THE PAPERS AS A
PETITION FOR CERTIORARI, WHICH IS HEREBY GRANTED.  28 U.S.C. 2103. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION PROHIBITS
ONLY "UNREASONABLE SEARCHES."  /1/  A WARRANT HAS NEVER BEEN THOUGHT TO
BE AN ABSOLUTE REQUIREMENT FOR A CONSTITUTIONALLY PROPER SEARCH. 
SEARCHES, WHETHER WITH OR WITHOUT A WARRANT, ARE TO BE JUDGED BY
WHETHER THEY ARE REASONABLE, AND, AS I SAID, SPEAKING FOR THE COURT IN
PRESTON V. UNITED STATES, 376 U.S. 364, 366-367 (1964), COMMON SENSE
DICTATES THAT REASONABLENESS VARIES WITH THE CIRCUMSTANCES OF THE
SEARCH.  SEE, E.G., HENRY V. UNITED STATES, 361 U.S. 98 (1959);
BRINEGAR V. UNITED STATES, 338 U.S. 160 (1949).  THE LOUISIANA SUPREME
COURT HELD NOT ONLY THAT THE POLICE ACTION HERE WAS REASONABLE BUT ALSO
THAT FAILURE TO CONDUCT AN IMMEDIATE SEARCH WOULD HAVE BEEN
UNREASONABLE.  252 LA. 1056, 1070, 215 SO.2D 811, 816.  WITH THAT VIEW
I AM IN COMPLETE AGREEMENT, FOR THE FOLLOWING REASONS. 

THE POLICE, HAVING WARRANTS FOR VALE'S ARREST, WERE WATCHING HIS
MOTHER'S HOUSE FROM A SHORT DISTANCE AWAY.  NO LONG AFTER THEY BEGAN
THEIR VIGIL A CAR ARRIVED, SOUNDED ITS HORN, AND BACKED INTO A PARKING
SPACE NEAR THE HOUSE.  THE DRIVER DID NOT GET OUT, BUT INSTEAD HONKED
THE CAR HORN AGAIN.  VALE, WHO HAD BEEN ARRESTED TWICE THE MONTH BEFORE
AND AGAINST WHOM AN INDICTMENT FOR A NARCOTICS OFFENSE WAS THEN
PENDING, CAME OUT OF HIS MOTHER'S HOUSE AND TALKED TO THE DRIVER OF THE
CAR.  AT THE CONCLUSION OF THE CONVERSATION VALE LOOKED BOTH WAYS, UP
AND DOWN THE STREET, AND THEN WENT BACK INSIDE THE HOUSE.  WHEN HE
REAPPEARED HE STOPPED BEFORE GOING TO THE CAR AND STOOD, AS ONE OF THE
OFFICERS TESTIFIED, "(LOOKING BACK AND FORTH LIKE TO SEE WHO MIGHT BE
COMING OR WHO WAS IN THE NEIGHBORHOOD."  HE THEN WALKED TO THE CAR AND
LEANED IN. 

FROM THIS BEHAVIOR THE OFFICERS WERE CONVINCED THAT A NARCOTICS
TRANSACTION WAS TAKING PLACE AT THAT VERY MOMENT.  THEY DROVE DOWN THE
STREET TOWARD VALE AND THE PARKED CAR.  WHEN THEY CAME WITHIN A FEW CAR
LENGTHS OF THE TWO MEN VALE SAW THEM AND BEGAN TO WALK QUICKLY BACK
TOWARD THE HOUSE.  AT THE SAME TIME THE DRIVER OF THE CAR ATTEMPTED TO
PULL AWAY.  THE POLICE BROUGHT BOTH PARTIES TO THE TRANSACTION TO A
STOP.  THEY THEN SAW THAT THE DRIVER OF THE CAR WAS ONE SAUCIER, A
KNOWN NARCOTICS ADDICT.  HE HURRIEDLY PLACED SOMETHING IN HIS MOUTH,
AND APPARENTLY SWALLOWED IT.  THE POLICE PLACED BOTH VALE AND SAUCIER
UNDER ARREST. 

AT THIS POINT THE POLICE HAD PROBABLE CAUSE TO BELIEVE THAT VALUE WAS
ENGAGED IN A NARCOTICS TRANSFER, AND THAT A SUPPLY OF NARCOTICS WOULD
BE FOUND IN THE HOUSE, TO WHICH VALE HAD RETURNED AFTER HIS FIRST
CONVERSATION, FROM WHICH HE HAD EMERGED FURTIVELY BEARING WHAT THE
POLICE COULD READILY DEDUCE WAS A SUPPLY OF NARCOTICS, AND TOWARD WHICH
HE HURRIED AFTER SEEING THE POLICE.  BUT THE POLICE DID NOT KNOW THEN
WHO ELSE MIGHT BE IN THE HOUSE.  VALE'S ARREST TOOK PLACE NEAR THE
HOUSE, AND ANYONE OBSERVING FROM INSIDE WOULD SURELY HAVE BEEN ALERTED
TO DESTROY THE STOCKS OF CONTRABAND WHICH THE POLICE BELIEVED VALE HAD
LEFT THERE.  THE POLICE HAD ALREADY SEEN SAUCIER, THE NARCOTICS ADDICT,
APPARENTLY SWALLOW WHAT VALE HAD GIVEN HIM.  BELIEVING THAT SOME
EVIDENCE HAD ALREADY BEEN DESTROYED AND THAT OTHER EVIDENCE MIGHT WELL
BE, THE POLICE WERE FACED WITH THE CHOICE OF RISKING THE IMMEDIATE
DESTRUCTION OF EVIDENCE OR ENTERING THE HOUSE AND CONDUCTING A SEARCH. 
I CANNOT SAY THAT THEIR DECISION TO SEARCH WAS UNREASONABLE.  DELAY IN
ORDER TO OBTAIN A WARRANT WOULD HAVE GIVEN AN ACCOMPLICE JUST THE TIME
HE NEEDED. 

THAT THE ARRESTING OFFICERS DID, IN FACT, BELIEVE THAT OTHERS MIGHT
BE IN THE HOUSE IS ATTESTED TO BY THEIR ACTIONS UPON ENTERING THE DOOR
LEFT OPEN BY VALE.  THE POLICE AT ONCE CHECKED THE SMALL HOUSE TO
DETERMINE IF ANYONE ELSE WAS PRESENT.  JUST AS THEY DISCOVERED THE
HOUSE WAS EMPTY, HOWEVER, VALE'S MOTHER AND BROTHER ARRIVED.  NOW WHAT
HAD BEEN A SUSPICION BECAME A CERTAINTY:  VALE'S RELATIVES WERE IN
POSSESSION AND KNEW OF HIS ARREST.  TO HAVE ABANDONED THE SEARCH AT
THIS POINT, AND LEFT THE HOUSE WITH VALE, WOULD NOT HAVE BEEN THE
ACTION OF REASONABLE POLICE OFFICERS.  AS MR. JUSTICE WHITE SAID,
DISSENTING IN CHIMEL V. CALIFORNIA, 395 U.S. 752, 775 (1969):     "FOR
THE POLICE TO SEARCH THE HOUSE WHILE THE EVIDENCE THEY HAD PROBABLE
CAUSE TO SEARCH OUT AND SEIZE WAS STILL THERE CANNOT BE CONSIDERED
UNREASONABLE." 

IN MY VIEW, WHETHER A SEARCH INCIDENT TO A LAWFUL ARREST IS
REASONABLE SHOULD STILL BE DETERMINED BY THE FACTS AND CIRCUMSTANCES OF
EACH CASE.  KER V. CALIFORNIA, 374 U.S. 23, 34-36 (1963); UNITED STATES
V. RABINOWITZ, 339 U.S. 56, 63-64 (1950).  FOR THE REASONS GIVEN ABOVE
I AM CONVINCED THAT THE SEARCH HERE WAS REASONABLE, EVEN THOUGH VALE
HAD NOT YET CROSSED THE THRESHOLD OF THE HOUSE TOWARD WHICH HE WAS
HEADED. 

MOREOVER, THE CIRCUMSTANCES HERE WERE SUFFICIENTLY EXCEPTIONAL TO
JUSTIFY A SEARCH, EVEN IF THE SEARCH WAS NOT STRICTLY "INCIDENTAL" TO
AN ARREST.  THE COURT RECOGNIZES THAT SEARCHES TO PREVENT THE
DESTRUCTION OR REMOVAL OF EVIDENCE HAVE LONG BEEN HELD REASONABLE BY
THIS COURT.  PRESTON V. UNITED STATES, SUPRA; MCDONALD V. UNITED
STATES, 335 U.S. 451, 455 (1948); CARROLL V. UNITED STATES, 267 U.S.
132 (1925).  WHETHER THE "EXCEPTIONAL CIRCUMSTANCES" JUSTIFYING SUCH A
SEARCH EXIST OR NOT IS A QUESTION THAT MAY BE, AS IT IS HERE, QUITE
DISTINCT FROM WHETHER OR NOT THE SEARCH WAS INCIDENT TO A VALID
ARREST.  SEE UNITED STATES V. JEFFERS, 342 U.S. 48, 51 (1951); JOHNSON
V. UNITED STATES, 333 U.S. 10 (1948).  IT IS THUS UNNECESSARY TO
DETERMINE WHETHER THE SEARCH WAS VALID AS INCIDENT TO THE ARREST UNDER
EITHER CHIMEL V. CALIFORNIA, SUPRA, OR UNDER THE PRE-CHIMEL STANDARD AS
INTERPRETED IN SHIPLEY V. CALIFORNIA, 395 U.S. 818 (1969).  IT IS ONLY
NECESSARY TO FIND THAT, GIVEN VALE'S ARREST IN A SPOT READILY VISIBLE
TO ANYONE IN THE HOUSE AND THE PROBABLE EXISTENCE OF NARCOTICS INSIDE,
IT WAS REASONABLE FOR THE POLICE TO CONDUCT AN IMMEDIATE SEARCH OF THE
PREMISES. 

THE COURT, HOWEVER, FINDS THE SEARCH HERE UNREASONABLE.  FIRST THE
COURT SUGGESTS THAT THE CONTRABAND WAS NOT "IN THE PROCESS OF
DESTRUCTION."  NONE OF THE CASES CITED BY THE COURT SUPPORTS THE
PROPOSITION THAT "EXCEPTIONAL CIRCUMSTANCES" EXIST ONLY WHEN THE
PROCESS OF DESTRUCTION HAS ALREADY BEGUN.  ON THE CONTRARY WE IMPLIED
THAT THOSE CIRCUMSTANCES DID EXIST WHEN "EVIDENCE OR CONTRABAND WAS
THREATENED WITH REMOVAL OR DESTRUCTION."  JOHNSON V. UNITED STATES,
SUPRA, AT 15.  SEE ALSO CHAPMAN V. UNITED STATES, 365 U.S. 610, 615
(1961); HERNANDEZ V. UNITED STATES, 353 F.2D 624 (C.A. 9TH CIR. 1965),
CERT. DENIED, 384 U.S. 1008 (1966). 

SECOND, THE COURT SEEMS TO ARGUE THAT THE SEARCH WAS UNREASONABLE
BECAUSE THE POLICE OFFICERS HAD TIME TO OBTAIN A WARRANT.  I AGREE THAT
THE OPPORTUNITY TO OBTAIN A WARRANT IS ONE OF THE FACTORS TO BE WEIGHED
IN DETERMINING REASONABLENESS.  TRUPIANO V. UNITED STATES, 334 U.S. 699
(1948); UNITED STATES V. RABINOWITZ, SUPRA, AT 66 (BLACK, J.,
DISSENTING).  BUT THE RECORD CONCLUSIVELY SHOWS THAT THERE WAS NO SUCH
OPPORTUNITY HERE.  AS I NOTED ABOVE, ONCE THE OFFICERS HAD OBSERVED
VALE'S CONDUCT IN FRONT OF THE HOUSE THEY HAD PROBABLE CAUSE TO BELIEVE
THAT A FELONY HAD BEEN COMMITTED AND THAT IMMEDIATE ACTION WAS
NECESSARY.  AT NO TIME AFTER THE EVENTS IN FRONT OF MRS. VALE'S HOUSE
WOULD IT HAVE BEEN PRUDENT FOR THE OFFICERS TO LEAVE THE HOUSE IN ORDER
TO SECURE A WARRANT. 

THE COURT ASSERTS, HOWEVER, THAT BECAUSE THE POLICE OBTAINED TWO
WARRANTS FOR VALE'S ARREST THERE IS "NO REASON . . . TO SUPPOSE THAT IT
WAS IMPRACTICABLE FOR THEM TO OBTAIN A SEARCH WARRANT AS WELL."  THE
DIFFICULTY IS THAT THE TWO ARREST WARRANTS ON WHICH THE COURT SEEMS TO
RELY SO HEAVILY WERE NOT ISSUED BECAUSE OF ANY PRESENT MISCONDUCT OF
VALE'S; THEY WERE ISSUED BECAUSE THE BOND HAD BEEN INCREASED FOR AN
EARLIER NARCOTICS CHARGE THEN PENDING AGAINST VALE.  WHEN THE POLICE
CAME TO ARREST VALE, THEY KNEW ONLY THAT HIS BOND HAD BEEN INCREASED. 
THERE IS NOTHING IN THE RECORD TO INDICATE THAT, ABSENT THE INCREASED
BOND, THERE WOULD HAVE BEEN PROBABLE CAUSE FOR AN ARREST, MUCH LESS A
SEARCH.  PROBABLE CAUSE FOR THE SEARCH AROSE FOR THE FIRST TIME WHEN
THE POLICE OBSERVED THE ACTIVITY OF VALE AND SAUCIER IN AND AROUND THE
HOUSE. 

I DO NOT SUGGEST THAT ALL ARRESTS NECESSARILY PROVIDE THE BASIS FOR
A SEARCH OF THE ARRESTEE'S HOUSE.  IN THIS CASE THERE IS FAR MORE THAN
A MERE STREET ARREST.  THE POLICE ALSO OBSERVED VALE'S USE OF THE HOUSE
AS A BASE OF OPERATIONS FOR HIS COMMERCIAL BUSINESS, HIS ATTEMPT TO
RETURN HURRIEDLY TO THE HOUSE ON SEEING THE OFFICERS, AND THE APPARENT
DESTRUCTION OF EVIDENCE BY THE MAN WITH WHOM VALE WAS DEALING. 
FURTHERMORE THE POLICE ARRIVAL AND VALE'S ARREST WERE PLAINLY VISIBLE
TO ANYONE WITHIN THE HOUSE, AND THE POLICE HAD EVERY REASON TO BELIEVE
THAT SOMEONE IN THE HOUSE WAS LIKELY TO DESTROY THE CONTRABAND IF THE
SEARCH WERE POSTPONED. 

THIS CASE RAISES MOST GRAPHICALLY THE QUESTION HOW DOES A POLICEMAN
PROTECT EVIDENCE NECESSARY TO THE STATE IF HE MUST LEAVE THE PREMISES
TO GET A WARRANT, ALLOWING THE EVIDENCE HE SEEKS TO BE DESTROYED.  THE
COURT'S ANSWER TO THAT QUESTION MAKES UNNECESSARILY DIFFICULT THE
CONVICTION OF THOSE WHO PREY UPON SOCIETY. 

/1/  THE FOURTH AMENDMENT SAYS: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

EBERHARD P. DEUTSCH, BY APPOINTMENT OF THE COURT, 396 U.S. 883,
ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF WAS RENE H.
HIMEL, JR. 

LOUISE KORNS ARGUED THE CAUSE FOR APPELLEE.  WITH HER ON THE BRIEF
WERE JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, AND JIM
GARRISON. 
..END :















CHAMBERS V. MARONEY, 399 U.S. 42 


       CHAMBERS V. MARONEY, CORRECTIONAL SUPERINTENDENT

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 830.  ARGUED APRIL 27, 1970-- DECIDED JUNE 22, 1970 


PETITIONER WAS ONE OF FOUR MEN ARRESTED AFTER THE AUTO IN WHICH THEY
WERE RIDING WAS STOPPED BY POLICE SHORTLY AFTER AN ARMED ROBBERY OF A
SERVICE STATION.  THE ARRESTS RESULTED FROM INFORMATION SUPPLIED BY THE
SERVICE STATION ATTENDANT AND BYSTANDERS.  THE CAR WAS DRIVEN TO A
POLICE STATION, WHERE A SEARCH DISCLOSED TWO REVOLVERS, ONE LOADED WITH
DUMDUM BULLETS, AND CARDS BEARING THE NAME OF AN ATTENDANT AT ANOTHER
SERVICE STATION WHO HAD BEEN ROBBED AT GUNPOINT A WEEK EARLIER.  IN A
WARRANT-AUTHORIZED SEARCH OF PETITIONER'S HOME THE NEXT DAY POLICE
FOUND AND SEIZED AMMUNITION, INCLUDING DUMDUM BULLETS SIMILAR TO THOSE
FOUND IN ONE OF THE GUNS IN THE CAR.  AT HIS FIRST TRIAL, WHICH ENDED
IN A MISTRIAL, PETITIONER WAS REPRESENTED BY A LEGAL AID SOCIETY
ATTORNEY.  ANOTHER LEGAL AID SOCIETY ATTORNEY, WHO REPRESENTED HIM AT
THE SECOND TRIAL, DID NOT CONFER WITH PETITIONER UNTIL A FEW MINUTES
BEFORE THAT TRIAL BEGAN.  THE MATERIALS TAKEN FROM THE CAR AND THE
BULLETS SEIZED FROM PETITIONER'S HOME WERE INTRODUCED IN EVIDENCE AND
PETITIONER WAS CONVICTED OF ROBBERY OF BOTH SERVICE STATIONS. 
PETITIONER DID NOT TAKE A DIRECT APPEAL, BUT SOUGHT, UNSUCCESSFULLY, A
WRIT OF HABEAS CORPUS IN THE PENNSYLVANIA COURTS AND IN THE FEDERAL
COURTS, CHALLENGING THE ADMISSIBILITY OF THE MATERIALS TAKEN FROM THE
CAR AND THE AMMUNITION SEIZED IN HIS HOME, AND CLAIMING THAT HE WAS
DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.  THE COURT OF APPEALS DEALT
WITH THE CLAIM THAT THE ATTORNEY'S LACK OF PREPARATION RESULTED IN THE
FAILURE TO EXCLUDE THE GUNS AND AMMUNITION BY FINDING HARMLESS ERROR IN
THE ADMISSION OF THE BULLETS AND RULING THAT THE MATERIALS SEIZED FROM
THE CAR WERE ADMISSIBLE IN EVIDENCE, AND CONCLUDED THAT THE CLAIM OF
PREJUDICE FROM SUBSTITUTION OF COUNSEL WAS WITHOUT SUBSTANTIAL BASIS. 
HELD: 

1.  THE WARRANTLESS SEARCH OF THE AUTOMOBILE WAS VALID AND THE
MATERIALS SEIZED THEREFROM WERE PROPERLY INTRODUCED IN EVIDENCE.  PP.
46-52. 

(A) THE SEARCH, MADE AT THE POLICE STATION SOME TIME AFTER THE
ARREST, CANNOT BE JUSTIFIED AS INCIDENT TO THE ARREST.  PP. 46-47. 

(B) JUST AS THERE WAS PROBABLE CAUSE TO ARREST THE OCCUPANTS OF THE
CAR, THERE WAS PROBABLE CAUSE TO SEARCH THE CAR FOR GUNS AND STOLEN
MONEY.  PP. 47-48. 

(C) IF THERE IS PROBABLE CAUSE, AN AUTOMOBILE, BECAUSE OF ITS
MOBILITY, MAY BE SEARCHED WITHOUT A WARRANT IN CIRCUMSTANCES THAT WOULD
NOT JUSTIFY A WARRANTLESS SEARCH OF A HOUSE OR OFFICE.  CARROLL V.
UNITED STATES, 267 U.S. 132.  PP. 48-51. 

(D) GIVEN PROBABLE CAUSE, THERE IS NO DIFFERENCE UNDER THE FOURTH
AMENDMENT BETWEEN (1) SEIZING AND HOLDING A CAR BEFORE PRESENTING THE
ISSUE OF PROBABLE CAUSE TO A MAGISTRATE, AND (2) CARRYING OUT AN
IMMEDIATE WARRANTLESS SEARCH.  PP. 51-52. 

2.  THE FINDINGS OF THE DISTRICT COURT AND THE COURT OF APPEALS
THAT, IF THERE WAS ERROR IN ADMITTING IN EVIDENCE THE AMMUNITION SEIZED
FROM PETITIONER'S HOUSE, IT WAS HARMLESS ERROR BEYOND A REASONABLE
DOUBT, ARE AFFIRMED ON THE BASIS OF THE COURT'S REVIEW OF THE RECORD. 
PP. 52-53. 

3.  BASED ON A CAREFUL EXAMINATION OF THE STATE COURT RECORD, THE
COURT OF APPEALS' JUDGMENT DENYING A HEARING AS TO THE ADEQUACY OF
REPRESENTATION BY COUNSEL, IS NOT DISTURBED.  PP. 53-54. 

408 F.2D 1186, AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION IN THIS CASE CONCERNS THE ADMISSIBILITY OF
EVIDENCE SEIZED FROM AN AUTOMOBILE, IN WHICH PETITIONER WAS RIDING AT
THE TIME OF HIS ARREST, AFTER THE AUTOMOBILE WAS TAKEN TO A POLICE
STATION AND WAS THERE THOROUGHLY SEARCHED WITHOUT A WARRANT.  THE COURT
OF APPEALS FOR THE THIRD CIRCUIT FOUND NO VIOLATION OF PETITIONER'S
FOURTH AMENDMENT RIGHTS.  WE AFFIRM. 

        I 

DURING THE NIGHT OF MAY 20, 1963, A GULF SERVICE STATION IN NORTH
BRADDOCK, PENNSYLVANIA, WAS ROBBED BY TWO MEN, EACH OF WHOM CARRIED AND
DISPLAYED A GUN.  THE ROBBERS TOOK THE CURRENCY FROM THE CASH REGISTER;
THE SERVICE STATION ATTENDANT, ONE STEPHEN KOVACICH, WAS DIRECTED TO
PLACE THE COINS IN HIS RIGHT-HAND GLOVE, WHICH WAS THEN TAKEN BY THE
ROBBERS.  TWO TEEN-AGERS, WHO HAD EARLIER NOTICED A BLUE COMPACT
STATION WAGON CIRCLING THE BLOCK IN THE VICINITY OF THE GULF STATION,
THEN SAW THE STATION WAGON SPEED AWAY FROM A PARKING LOT CLOSE TO THE
GULF STATION.  ABOUT THE SAME TIME, THEY LEARNED THAT THE GULF STATION
HAD BEEN ROBBED.  THEY REPORTED TO POLICE, WHO ARRIVED IMMEDIATELY,
THAT FOUR MEN WERE IN THE STATION WAGON AND ONE WAS WEARING A GREEN
SWEATER.  KOVACICH TOLD THE POLICE THAT ONE OF THE MEN WHO ROBBED HIM
WAS WEARING A GREEN SWEATER AND THE OTHER WAS WEARING A TRENCH COAT.  A
DESCRIPTION OF THE CAR AND THE TWO ROBBERS WAS BROADCAST OVER THE
POLICE RADIO.  WITHIN AN HOUR, A LIGHT BLUE COMPACT STATION WAGON
ANSWERING THE DESCRIPTION AND CARRYING FOUR MEN WAS STOPPED BY THE
POLICE ABOUT TWO MILES FROM THE GULF STATION.  PETITIONER WAS ONE OF
THE MEN IN THE STATION WAGON.  HE WAS WEARING A GREEN SWEATER AND THERE
WAS A TRENCH COAT IN THE CAR.  THE OCCUPANTS WERE ARRESTED AND THE CAR
WAS DRIVEN TO THE POLICE STATION.  IN THE COURSE OF A THOROUGH SEARCH
OF THE CAR AT THE STATION, THE POLICE FOUND CONCEALED IN A COMPARTMENT
UNDER THE DASHBOARD TWO .38-CALIBER REVOLVERS (ONE LOADED WITH DUMDUM
BULLETS), A RIGHT-HAND GLOVE CONTAINING SMALL CHANGE, AND CERTAIN CARDS
BEARING THE NAME OF RAYMOND HAVICON, THE ATTENDANT AT A BORON SERVICE
STATION IN MCKEESPORT, PENNSYLVANIA, WHO HAD BEEN ROBBED AT GUNPOINT ON
MAY 13, 1963.  IN THE COURSE OF A WARRANT-AUTHORIZED SEARCH OF
PETITIONER'S HOME THE DAY AFTER PETITIONER'S ARREST, POLICE FOUND AND
SEIZED CERTAIN .38-CALIBER AMMUNITION, INCLUDING SOME DUMDUM BULLETS
SIMILAR TO THOSE FOUND IN ONE OF THE GUNS TAKEN FROM THE STATION
WAGON. 

PETITIONER WAS INDICTED FOR BOTH ROBBERIES.  /1/  HIS FIRST TRIAL
ENDED IN A MISTRIAL BUT HE WAS CONVICTED OF BOTH ROBBERIES AT THE
SECOND TRIAL.  BOTH KOVACICH AND HAVICON IDENTIFIED PETITIONER AS ONE
OF THE ROBBERS.  /2/  THE MATERIALS TAKEN FROM THE STATION WAGON WERE
INTRODUCED INTO EVIDENCE, KOVACICH IDENTIFYING HIS GLOVE AND HAVICON
THE CARS TAKEN IN THE MAY 13 ROBBERY.  THE BULLETS SEIZED AT
PETITIONER'S HOUSE WERE ALSO INTRODUCED OVER OBJECTIONS OF PETITIONER'S
COUNSEL.  /3/  PETITIONER WAS SENTENCED TO A TERM OF FOUR TO EIGHT
YEARS' IMPRISONMENT FOR THE MAY 13 ROBBERY AND TO A TERM OF TWO TO
SEVEN YEARS' IMPRISONMENT FOR THE MAY 20 ROBBERY, THE SENTENCES TO RUN
CONSECUTIVELY.  /4/  PETITIONER DID NOT TAKE A DIRECT APPEAL FROM THESE
CONVICTIONS.  IN 1965, PETITIONER SOUGHT A WRIT OF HABEAS CORPUS IN THE
STATE COURT, WHICH DENIED THE WRIT AFTER A BRIEF EVIDENTIARY HEARING;
THE DENIAL OF THE WRIT WAS AFFIRMED ON APPEAL IN THE PENNSYLVANIA
APPELLATE COURTS.  HABEAS CORPUS PROCEEDINGS WERE THEN COMMENCED IN THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. 
AN ORDER TO SHOW CAUSE WAS ISSUED.  BASED ON THE STATE'S RESPONSE AND
THE STATE COURT RECORD, THE PETITION FOR HABEAS CORPUS WAS DENIED
WITHOUT A HEARING.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT
AFFIRMED, 408 F.2D 1186, AND WE GRANTED CERTIORARI, 396 U.S. 900
(1969).  /5/

        II 

WE PASS QUICKLY THE CLAIM THAT THE SEARCH OF THE AUTOMOBILE WAS THE
FRUIT OF AN UNLAWFUL ARREST.  BOTH THE COURTS BELOW THOUGHT THE
ARRESTING OFFICERS HAD PROBABLE CAUSE TO MAKE THE ARREST.  WE AGREE. 
HAVING TALKED TO THE TEEN-AGE OBSERVERS AND TO THE VICTIM KOVACICH, THE
POLICE HAD AMPLE CAUSE TO STOP A LIGHT BLUE COMPACT STATION WAGON
CARRYING FOUR MEN AND TO ARREST THE OCCUPANTS, ONE OF WHOM WAS WEARING
A GREEN SWEATER AND ONE OF WHOM HAD A TRENCH COAT WITH HIM IN THE CAR. 
/6/ 

EVEN SO, THE SEARCH THAT PRODUCED THE INCRIMINATING EVIDENCE WAS
MADE AT THE POLICE STATION SOME TIME AFTER THE ARREST AND CANNOT BE
JUSTIFIED AS A SEARCH INCIDENT TO AN ARREST:  "ONCE AN ACCUSED IS UNDER
ARREST AND IN CUSTODY, THEN A SEARCH MADE AT ANOTHER PLACE, WITHOUT A
WARRANT, IS SIMPLY NOT INCIDENT TO THE ARREST."  PRESTON V. UNITED
STATES, 376 U.S. 364, 367 (1964).  DYKE V. TAYLOR IMPLEMENT MFG. CO.,
391 U.S. 216 (1968), IS TO THE SAME EFFECT; THE REASONS THAT HAVE BEEN
THOUGHT SUFFICIENT TO JUSTIFY WARRANTLESS SEARCHES CARRIED OUT IN
CONNECTION WITH AN ARREST NO LONGER OBTAIN WHEN THE ACCUSED IS SAFELY
IN CUSTODY AT THE STATION HOUSE. 

THERE ARE, HOWEVER, ALTERNATIVE GROUNDS ARGUABLY JUSTIFYING THE
SEARCH OF THE CAR IN THIS CASE.  IN PRESTON, SUPRA, THE ARREST WAS FOR
VAGRANCY; IT WAS APPARENT THAT THE OFFICERS HAD NO CAUSE TO BELIEVE
THAT EVIDENCE OF CRIME WAS CONCEALED IN THE AUTO.  IN DYKE, SUPRA, THE
COURT EXPRESSLY REJECTED THE SUGGESTION THAT THERE WAS PROBABLE CAUSE
TO SEARCH THE CAR, 391 U.S.,AT 221-222.  HERE THE SITUATION IS
DIFFERENT, FOR THE POLICE HAD PROBABLE CAUSE TO BELIEVE THAT THE
ROBBERS, CARRYING GUNS AND THE FRUITS OF THE CRIME, HAD FLED THE SCENE
IN A LIGHT BLUE COMPACT STATION WAGON WHICH WOULD BE CARRYING FOUR MEN,
ONE WEARING A GREEN SWEATER AND ANOTHER WEARING A TRENCH COAT.  AS THE
STATE COURTS CORRECTLY HELD, THERE WAS PROBABLE CAUSE TO ARREST THE
OCCUPANTS OF THE STATION WAGON THAT THE OFFICERS STOPPED; JUST AS
OBVIOUSLY WAS THERE PROBABLE CAUSE TO SEARCH THE CAR FOR GUNS AND
STOLEN MONEY. 

IN TERMS OF THE CIRCUMSTANCES JUSTIFYING A WARRANTLESS SEARCH, THE
COURT HAS LONG DISTINGUISHED BETWEEN AN AUTOMOBILE AND A HOME OR
OFFICE.  IN CARROLL V. UNITED STATES, 267 U.S. 132 (1925), THE ISSUE
WAS THE ADMISSIBILITY OF EVIDENCE OF CONTRABAND LIQUOR SEIZED IN A
WARRANTLESS SEARCH OF A CAR ON THE HIGHWAY.  AFTER SURVEYING THE LAW
FROM THE TIME OF THE ADOPTION OF THE FOURTH AMENDMENT ONWARD, THE COURT
HELD THAT AUTOMOBILES AND OTHER CONVEYANCES MAY BE SEARCHED WITHOUT A
WARRANT IN CIRCUMSTANCES THAT WOULD NOT JUSTIFY THE SEARCH WITHOUT A
WARRANT OF A HOUSE OR AN OFFICE, PROVIDED THAT THERE IS PROBABLE CAUSE
TO BELIEVE THAT THE CAR CONTAINS ARTICLES THAT THE OFFICERS ARE
ENTITLED TO SEIZE.  THE COURT EXPRESSED ITS HOLDING AS FOLLOWS: 

     "WE HAVE MADE A SOMEWHAT EXTENDED REFERENCE TO THESE STATUTES

  TO SHOW THAT THE GUARANTY OF FREEDOM FROM UNREASONABLE SEARCHES

  AND SEIZURES BY THE FOURTH AMENDMENT HAS BEEN CONSTRUED,

  PRACTICALLY SINCE THE BEGINNING OF THE GOVERNMENT, AS RECOGNIZING

  A NECESSARY DIFFERENCE BETWEEN A SEARCH OF A STORE, DWELLING

  HOUSE OR OTHER STRUCTURE IN RESPECT OF WHICH A PROPER OFFICIAL

  WARRANT READILY MAY BE OBTAINED, AND A SEARCH OF A SHIP, MOTOR

  BOAT, WAGON OR AUTOMOBILE, FOR CONTRABAND GOODS, WHERE IT IS NOT

  PRACTICABLE TO SECURE A WARRANT BECAUSE THE VEHICLE CAN BE

  QUICKLY MOVED OUT OF THE LOCAILTY OR JURISDICTION IN WHICH THE

  WARRANT MUST BE SOUGHT. 

     "HAVING THUS ESTABLISHED THAT CONTRABAND GOODS CONCEALED AND

  ILLEGALLY TRANSPORTED IN AN AUTOMOBILE OR OTHER VEHICLE MAY BE

  SEARCHED FOR WITHOUT A WARRANT, WE COME NOW TO CONSIDER UNDER

  WHAT CIRCUMSTANCES SUCH SEARCH MAY BE MADE . . . (THOSE LAWFULLY

  WITHIN THE COUNTRY, ENTITLED TO USE THE PUBLIC HIGHWAYS, HAVE A

  RIGHT TO FREE PASSAGE WITHOUT INTERRUPTION OR SEARCH UNLESS THERE

  IS KNOWN TO A COMPETENT OFFICIAL AUTHORIZED TO SEARCH, PROBABLE

  CAUSE FOR BELIEVING THAT THEIR VEHICLES ARE CARRYING CONTRABAND

  OR ILLEGAL MERCHANDISE . . .

        *          *          *          * 

"THE MEASURE OF LEGALITY OF SUCH A SEIZURE IS, THEREFORE, THAT THE
SEIZING OFFICER SHALL HAVE REASONABLE OR PROBABLE CAUSE FOR BELIEVING
THAT THE AUTOMOBILE WHICH HE STOPS AND SEIZES HAS CONTRABAND LIQUOR
THEREIN WHICH IS BEING ILLEGALLY TRANSPORTED."  267 U.S.,AT 153-154,
155-156.  THE COURT ALSO NOTED THAT THE SEARCH OF AN AUTO ON PROBABLE
CAUSE PROCEEDS ON A THEORY WHOLLY DIFFERENT FROM THAT JUSTIFYING THE
SEARCH INCIDENT TO AN ARREST: 

"THE RIGHT TO SEARCH AND THE VALIDITY OF THE SEIZURE ARE NOT
DEPENDENT ON THE RIGHT TO ARREST.  THEY ARE DEPENDENT ON THE REASONABLE
CAUSE THE SEIZING OFFICER HAS FOR BELIEF THAT THE CONTENTS OF THE
AUTOMOBILE OFFEND AGAINST THE LAW."  267 U.S.,AT 158-159.  FINDING THAT
THERE WAS PROBABLE CAUSE FOR THE SEARCH AND SEIZURE AT ISSUE BEFORE IT,
THE COURT AFFIRMED THE CONVICTIONS. 

CARROLL WAS FOLLOWED AND APPLIED IN HUSTY V. UNITED STATES, 282 U.S.
694 1931), AND SCHER V. UNITED STATES, 305 U.S. 251 (1938).  IT WAS
REAFFIRMED AND FOLLOWED IN BRINEGAR V. UNITED STATES, 338 U.S. 160
(1949).  IN 1964, THE OPINION IN PRESTON, SUPRA, CITED BOTH BRINEGAR
AND CARROLL WITH APPROVAL, 376 U.S.,AT 366-367.  IN COOPER V.
CALIFORNIA, 386 U.S. 58 (1967), /7/  THE COURT READ PRESTON AS DEALING
PRIMARILY WITH A SEARCH INCIDENT TO ARREST AND CITED THAT CASE FOR THE
PROPOSITION THAT THE MOBILITY OF A CAR MAY MAKE THE SEARCH OF A CAR
WITHOUT A WARRANT REASONABLE "ALTHOUGH THE RESULT MIGHT BE THE OPPOSITE
IN A SEARCH OF A HOME, A STORE, OR OTHER FIXED PIECE OF PROPERTY."  386
U.S.,AT 59.  THE COURT'S OPINION IN DYKE, 391 U.S.,AT 221, RECOGNIZED
THAT "(AUTOMOBILES, BECAUSE OF THEIR MOBILITY, MAY BE SEARCHED WITHOUT
A WARRANT UPON FACTS NOT JUSTIFYING A WARRANTLESS SEARCH OF A RESIDENCE
OR OFFICE," CITING BRINEGAR AND CARROLL, SUPRA.  HOWEVER, BECAUSE THERE
WAS INSUFFICIENT REASON TO SEARCH THE CAR INVOLVED IN THE DYKE CASE,
THE COURT DID NOT REACH THE QUESTION OF WHETHER THOSE CASES "EXTEND TO
A WARRANTLESS SEARCH, BASED UPON PROBABLE CAUSE, OF AN AUTOMOBILE
WHICH, HAVING BEEN STOPPED ORIGINALLY ON A HIGHWAY, IS PARKED OUTSIDE A
COURTHOUSE."  391 U.S.,AT 222.  /8/ 

NEITHER CARROLL, SUPRA, NOR OTHER CASES IN THIS COURT REQUIRE OR
SUGGEST THAT IN EVERY CONCEIVABLE CIRCUMSTANCE THE SEARCH OF AN AUTO
EVEN WITH PROBABLE CAUSE MAY BE MADE WITHOUT THE EXTRA PROTECTION FOR
PRIVACY THAT A WARRANT AFFORDS.  BUT THE CIRCUMSTANCES THAT FURNISH
PROBABLE CAUSE TO SEARCH A PARTICULAR AUTO FOR PARTICULAR ARTICLES ARE
MOST OFTEN UNFORESEEABLE; MOREOVER, THE OPPORTUNITY TO SEARCH IS
FLEETING SINCE A CAR IS READILY MOVABLE.  WHERE THIS IS TRUE, AS IN
CARROLL AND THE CASE BEFORE US NOW, IF AN EFFECTIVE SEARCH IS TO BE
MADE AT ANY TIME, EITHER THE SEARCH MUST BE MADE IMMEDIATELY WITHOUT A
WARRANT OR THE CAR ITSELF MUST BE SEIZED AND HELD WITHOUT A WARRANT FOR
WHATEVER PERIOD IS NECESSARY TO OBTAIN A WARRANT FOR THE SEARCH.  /9/ 

IN ENFORCING THE FOURTH AMENDMENT'S PROHIBITION AGAINST UNREASONABLE
SEARCHES AND SEIZURES, THE COURT HAS INSISTED UPON PROBABLE CAUSE AS A
MINIMUM REQUIREMENT FOR A REASONABLE SEARCH PERMITTED BY THE
CONSTITUTION.  AS A GENERAL RULE, IT HAS ALSO REQUIRED THE JUDGMENT OF
A MAGISTRATE ON THE PROBABLE-CAUSE ISSUE AND THE ISSUANCE OF A WARRANT
BEFORE A SEARCH IS MADE.  ONLY IN EXIGENT CIRCUMSTANCES WILL THE
JUDGMENT OF THE POLICE AS TO PROBABLE CAUSE SERVE AS A SUFFICIENT
AUTHORIZATION FOR A SEARCH.  CARROLL, SUPRA, HOLDS A SEARCH WARRANT
UNNECESSARY WHERE THERE IS PROBABLE CAUSE SERVE AS A SUFFICIENT
AUTHORIZATION FOR A SEARCH.  CARROLL, SUPRA, HOLDS A SEARCH WARRANT
UNNECESSARY WHERE THERE IS PROBABLE CAUSE TO SEARCH AN AUTOMOBILE
STOPPED ON THE HIGHWAY; THE CAR IS MOVABLE, THE OCCUPANTS ARE ALERTED,
AND THE CAR'S CONTENTS MAY NEVER BE FOUND AGAIN IF A WARRANT MUST BE
OBTAINED.  HENCE AN IMMEDIATE SEARCH IS CONSTITUTIONALLY PERMISSIBLE. 

ARGUABLY, BECAUSE OF THE PREFERENCE FOR A MAGISTRATE'S JUDGMENT,
ONLY THE IMMOBILIZATION OF THE CAR SHOULD BE PERMITTED UNTIL A SEARCH
WARRANT IS OBTAINED; ARGUABLY, ONLY THE "LESSER" INTRUSION IS
PERMISSIBLE UNTIL THE MAGISTRATE AUTHORIZES THE "GREATER."  BUT WHICH
IS THE "GREATER" AND WHICH THE "LESSER" INTRUSION IS ITSELF A DEBATABLE
QUESTION AND THE ANSWER MAY DEPEND ON A VARIETY OF CIRCUMSTANCES.  FOR
CONSTITUTIONAL PURPOSES, WE SEE NO DIFFERENCE BETWEEN ON THE ONE HAND
SEIZING AND HOLDING A CAR BEFORE PRESENTING THE PROBABLE CAUSE ISSUE TO
A MAGISTRATE AND ON THE OTHER HAND CARRYING OUT AN IMMEDIATE SEARCH
WITHOUT A WARRANT.  GIVEN PROBABLE CAUSE TO SEARCH, EITHER COURSE IS
REASONABLE UNDER THE FOURTH AMENDMENT. 

ON THE FACTS BEFORE US, THE BLUE STATION WAGON COULD HAVE BEEN
SEARCHED ON THE SPOT WHEN IT WAS STOPPED SINCE THERE WAS PROBABLE CAUSE
TO SEARCH AND IT WAS A FLEETING TARGET FOR A SEARCH.  THE PROBABLE
CAUSE FACTOR STILL OBTAINED AT THE STATION HOUSE AND SO DID THE
MOBILITY OF THE CAR UNLESS THE FOURTH AMENDMENT PERMITS A WARRANTLESS
SEIZURE OF THE CAR AND THE DENIAL OF ITS USE TO ANYONE UNTIL A WARRANT
IS SECURED.  IN THAT EVENT THERE IS LITTLE TO CHOOSE IN TERMS OF
PRACTICAL CONSEQUENCES BETWEEN AN IMMEDIATE SEARCH WITHOUT A WARRANT
AND THE CAR'S IMMOBILIZATION UNTIL A WARRANT IS OBTAINED.  /10/  THE
SAME CONSEQUENCES MAY NOT FOLLOW WHERE THERE IS UNFORESEEABLE CAUSE TO
SEARCH A HOUSE.  COMPARE VALE V. LOUISIANA, ANTE, P. 30.  BUT AS
CARROLL, SUPRA, HELD, FOR THE PURPOSES OF THE FOURTH AMENDMENT THERE IS
A CONSTITUTIONAL DIFFERENCE BETWEEN HOUSES AND CARS.              III 

NEITHER OF PETITIONER'S REMAINING CONTENTIONS WARRANTS REVERSAL OF
THE JUDGMENT OF THE COURT OF APPEALS.  ONE OF THEM CHALLENGES THE
ADMISSIBILITY AT TRIAL OF THE .38-CALIBER AMMUNITION SEIZED IN THE
COURSE OF A SEARCH OF PETITIONER'S HOUSE.  THE CIRCUMSTANCES RELEVANT
TO THIS ISSUE ARE SOMEWHAT CONFUSED, INVOLVING AS THEY DO QUESTIONS OF
PROBABLE CAUSE, A LOST SEARCH WARRANT, AND THE PENNSYLVANIA PROCEDURE
FOR CHALLENGING THE ADMISSIBILITY OF EVIDENCE SEIZED.  BOTH THE
DISTRICT COURT AND THE COURT OF APPEALS, HOWEVER, AFTER CAREFUL
EXAMINATION OF THE RECORD, FOUND THAT IF THERE WAS ERROR IN ADMITTING
THE AMMUNITION, THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT. 
HAVING OURSELVES STUDIED THIS RECORD, WE ARE NOT PREPARED TO DIFFER
WITH THE TWO COURTS BELOW.  SEE HARRINGTON V. CALIFORNIA, 395 U.S. 250
(1969). 

THE FINAL CLAIM IS THAT PETITIONER WAS NOT AFFORDED THE EFFECTIVE
ASSISTANCE OF COUNSEL.  THE FACTS PERTINENT TO THIS CLAIM ARE THESE:
THE LEGAL AID SOCIETY OF ALLEGHENY COUNTY WAS APPOINTED TO REPRESENT
PETITIONER PRIOR TO HIS FIRST TRIAL.  A REPRESENTATIVE OF THE SOCIETY
CONFERRED WITH PETITIONER, AND A MEMBER OF ITS STAFF, MR. MIDDLEMAN,
APPEARED FOR PETITIONER AT THE FIRST TRIAL.  THERE IS NO CLAIM THAT
PETITIONER WAS NOT THEN ADEQUATELY REPRESENTED BY FULLY PREPARED
COUNSEL.  THE DIFFICULTY ARISES OUT OF THE SECOND TRIAL.  APPARENTLY NO
ONE FROM THE LEGAL AID SOCIETY AGAIN CONFERRED WITH PETITIONER UNTIL A
FEW MINUTES BEFORE THE SECOND TRIAL BEGAN.  THE ATTORNEY WHO THEN
APPEARED TO REPRESENT PETITIONER WAS NOT MR. MIDDLEMAN BUT MR. TAMBURO,
ANOTHER LEGAL AID SOCIETY ATTORNEY.  NO CHARGE IS MADE THAT MR. TAMBURO
WAS INCOMPETENT OR INEXPERIENCED; RATHER THE CLAIM IS THAT HIS
APPEARANCE FOR PETITIONER WAS SO BELATED THAT HE COULD NOT HAVE
FURNISHED EFFECTIVE LEGAL ASSISTANCE AT THE SECOND TRIAL.  WITHOUT
GRANTING AN EVIDENTIARY HEARING, THE DISTRICT COURT REJECTED
PETITIONER'S CLAIM.  THE COURT OF APPEALS DEALT WITH THE MATTER IN AN
EXTENSIVE OPINION.  AFTER CAREFULLY EXAMINING THE STATE COURT RECORD,
WHICH IT HAD BEFORE IT, THE COURT FOUND AMPLE GROUNDS FOR HOLDING THAT
THE APPEARANCE OF A DIFFERENT ATTORNEY AT THE SECOND TRIAL HAD NOT
RESULTED IN PREJUDICE TO PETITIONER.  THE CLAIM THAT MR. TAMBURO WAS
UNPREPARED CENTERED AROUND HIS ALLEGEDLY INADEQUATE EFFORTS TO HAVE THE
GUNS AND AMMUNITION EXCLUDED FROM EVIDENCE.  BUT THE COURT OF APPEALS
FOUND HARMLESS ANY ERROR IN THE ADMISSION OF THE BULLETS AND RULED THAT
THE GUNS AND OTHER MATERIALS SEIZED FROM THE CAR WERE ADMISSIBLE
EVIDENCE.  HENCE THE CLAIM OF PREJUDICE FROM THE SUBSTITUTION OF
COUNSEL WAS WITHOUT SUBSTANTIAL BASIS.  /11/  IN THIS POSTURE OF THE
CASE WE ARE NOT INCLINED TO DISTURB THE JUDGMENT OF THE COURT OF
APPEALS AS TO WHAT THE STATE RECORD SHOWS WITH RESPECT TO THE ADEQUACY
OF COUNSEL.  UNQUESTIONABLY, THE COURTS SHOULD MAKE EVERY EFFORT TO
EFFECT EARLY APPOINTMENTS OF COUNSEL IN ALL CASES.  BUT WE ARE NOT
DISPOSED TO FASHION A PER SE RULE REQUIRING REVERSAL OF EVERY
CONVICTION FOLLOWING TARDY APPOINTMENT OF COUNSEL OR TO HOLD THAT,
WHENEVER A HABEAS CORPUS PETITION ALLEGES A BELATED APPOINTMENT, AN
EVIDENTIARY HEARING MUST BE HELD TO DETERMINE WHETHER THE DEFENDANT HAS
BEEN DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL.  THE COURT OF APPEALS
REACHED THE RIGHT RESULT IN DENYING A HEARING IN THIS CASE. 

              AFFIRMED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  PETITIONER WAS INDICTED SEPARATELY FOR EACH ROBBERY.  ONE OF
THE OTHER THREE MEN WAS SIMILARLY INDICTED AND THE OTHER TWO WERE
INDICTED ONLY FOR THE GULF ROBBERY.  ALL INDICTMENTS AND ALL DEFENDANTS
WERE TRIED TOGETHER.  IN A SECOND TRIAL FOLLOWING A MISTRIAL, THE JURY
FOUND ALL DEFENDANTS GUILTY AS CHARGED. 

/2/  KOVACICH IDENTIFIED PETITIONER AT A PRETRIAL STAGE OF THE
PROCEEDINGS, AND SO TESTIFIED, BUT COULD NOT IDENTIFY HIM AT THE
TRIAL.  HAVICON IDENTIFIED PETITIONER BOTH BEFORE TRIAL AND AT TRIAL. 

/3/  THE BULLETS WERE APPARENTLY EXCLUDED AT THE FIRST TRIAL.  THE
GROUNDS FOR THE ESCLUSION DO NOT CLEARLY APPEAR FROM THE RECORD NOW
BEFORE US. 

/4/  THE FOUR-TO-EIGHT-YEAR SENTENCE WAS TO BE SERVED CONCURRENTLY
WITH ANOTHER SENTENCE, FOR AN UNRELATED ARMED ROBBERY OFFENSE, IMPOSED
EARLIER BUT VACATED SUBSEQUENT TO IMPOSITION OF SENTENCE IN THIS CASE. 
THE TWO-TO-SEVEN-YEAR TERM WAS TO BE CONSECUTIVE TO THE OTHER
SENTENCES.  IT APPEARS THAT THE OFFENSES HERE AT ISSUE CAUSED
REVOCATION OF PETITIONER'S PAROLE IN CONNECTION WITH A PRIOR
CONVICTION.  APPARENTLY PETITIONER HAS NOW BEGUN TO SERVE THE FIRST OF
THE TWO SENTENCES IMPOSED FOR THE CONVICTIONS HERE CHALLENGED. 

/5/  SINCE MAPP V. OHIO, 367 U.S. 643 (1961), THE FEDERAL COURTS
HAVE REGULARLY ENTERTAINED AND RULED ON PETITIONS FOR HABEAS CORPUS
FILED BY STATE PRISONERS ALLEGING THAT UNCONSTITUTIONALLY SEIZED
EVIDENCE WAS ADMITTED AT THEIR TRIALS.  SEE, E.G., MANCUSI V. DEFORTE,
392 U.S. 364 (1968); CARAFAS V. LAVALLEE, 391 U.S. 234 (1968); WARDEN
V. HAYDEN, 387 U.S. 294 (1967).  AS FOR FEDERAL PRISONERS, A DIVIDED
COURT HELD THAT RELIEF UNDER 28 U.S.C. 2255 WAS AVAILABLE TO VINDICATE
FOURTH AMENDMENT RIGHTS.  KAUFMAN V. UNITED STATES, 394 U.S. 217
(1969).  RIGHT-TO-COUNSEL CLAIMS OF COURSE HAVE REGULARLY BEEN PRESSED
AND ENTERTAINED IN FEDERAL HABEAS CORPUS PROCEEDINGS. 

IT IS RELEVANT TO NOTE HERE THAT PETITIONER CHAMBERS AT TRIAL MADE
NO OBJECTION TO THE INTRODUCTION OF THE ITEMS SEIZED FROM THE CAR;
HOWEVER HIS FOURTH AMENDMENT CLAIMS WITH RESPECT TO THE AUTO SEARCH
WERE RAISED AND PASSED ON BY THE PENNSYLVANIA COURTS IN THE STATE
HABEAS CORPUS PROCEEDING.  HIS OBJECTION TO THE SEARCH OF HIS HOUSE WAS
RAISED AT HIS TRIAL AND REJECTED BOTH ON THE MERITS AND BECAUSE HE HAD
NOT FILED A MOTION TO SUPPRESS; SIMILAR TREATMENT WAS GIVEN THE POINT
IN THE STATE COLLATERAL PROCEEDINGS, WHICH TOOK PLACE BEFORE THE SAME
JUDGE WHO HAD TRIED THE CRIMINAL CASE.  THE COUNSEL CLAIM WAS NOT
PRESENTED AT TRIAL BUT WAS RAISED AND REJECTED IN THE STATE COLLATERAL
PROCEEDINGS. 

/6/  IN ANY EVENT, AS WE POINT OUT BELOW, THE VALIDITY OF AN ARREST
IS NOT NECESSARILY DETERMINATIVE OF THE RIGHT TO SEARCH A CAR IF THERE
IS PROBABLE CAUSE TO MAKE THE SEARCH.  HERE, AS WILL BE TRUE IN MANY
CASES, THE CIRCUMSTANCES JUSTIFYING THE ARREST ARE ALSO THOSE
FURNISHING PROBABLE CAUSE FOR A SEARCH. 

/7/  COOPER INVOLVED THE WARRANTLESS SEARCH OF A CAR HELD FOR
FORFEITURE UNDER STATE LAW.  EVIDENCE SEIZED FROM THE CAR IN THAT
SEARCH WAS HELD ADMISSILBE.  IN THE CASE BEFORE US NO CLAIM IS MADE
THAT STATE LAW AUTHORIZED THAT THE STATION WAGON BE HELD AS EVIDENCE OR
AS AN INSTRUMENTALITY OF THE CRIME; NOR WAS THE STATION WAGON AN
ABANDONED OR STOLEN VEHICLE.  THE QUESTION HERE IS WHETHER PROBABLE
CAUSE JUSTIFIES A WARRANTLESS SEARCH IN THE CIRCUMSTANCES PRESENTED. 

/8/  NOTHING SAID LAST TERM IN CHIMEL V. CALIFORNIA, 395 U.S. 752
(1969), PURPORTED TO MODIFY OR AFFECT THE RATIONALE OF CARROLL.  AS THE
COURT NOTED: 

"OUR HOLDING TODAY IS OF COURSE ENTIRELY CONSISTENT WITH THE
RECOGNIZED PRINCIPLE THAT, ASSUMING THE EXISTENCE OF PROBABLE CAUSE,
AUTOMOBILES AND OTHER VEHICLES MAY BE SEARCHED WITHOUT WARRANTS 'WHERE
IT IS NOT PRACTICABLE TO SECURE A WARRANT BECAUSE THE VEHICLE CAN BE
QUICKLY MOVED OUT OF THE LOCALITY OR JURISDICTION IN WHICH THE WARRANT
MUST BE SOUGHT.'  CARROLL V. UNITED STATES, 267 U.S. 132, 153; SEE
BRINEGAR V. UNITED STATES, 338 U.S. 160."  395 U.S.,AT 764 N. 9. 

/9/  FOLLOWING THE CAR UNTIL A WARRANT CAN BE OBTAINED SEEMS AN
IMPRACTICAL ALTERNATIVE SINCE, AMONG OTHER THINGS, THE CAR MAY BE TAKEN
OUT OF THE JURISDICTION.  TRACING THE CAR AND SEARCHING IT HOURS OR
DAYS LATER WOULD OF COURSE PERMIT INSTRUMENTS OR FRUITS OF CRIME TO BE
REMOVED FROM THE CAR BEFORE THE SEARCH. 

/10/  IT WAS NOT UNREASONABLE IN THIS CASE TO TAKE THE CAR TO THE
STATION HOUSE.  ALL OCCUPANTS IN THE CAR WERE ARRESTED IN A DARK
PARKING LOT IN THE MIDDLE OF THE NIGHT.  A CAREFUL SEARCH AT THAT POINT
WAS IMPRACTICAL AND PERHAPS NOT SAFE FOR THE OFFICERS, AND IT WOULD
SERVE THE OWNER'S CONVENIENCE AND THE SAFETY OF HIS CAR TO HAVE THE
VEHICLE AND THE KEYS TOGETHER AT THE STATION HOUSE. 

/11/  IT IS PERTINENT TO NOTE THAT EACH OF THE FOUR DEFENDANTS WAS
REPRESENTED BY SEPARATE COUNSEL.  THE ATTORNEY FOR LAWSON, WHO WAS THE
CAR OWNER AND WHO WAS THE ONLY DEFENDANT TO TAKE THE STAND, APPEARS TO
HAVE BEEN THE LEAD COUNSEL.  AS FAR AS THE RECORD BEFORE US REVEALS, NO
COUNSEL MADE ANY OBJECTION AT THE TRIAL TO THE ADMISSION OF THE ITEMS
TAKEN FROM THE CAR.  PETITIONER'S COUNSEL OBJECTED TO THE INTRODUCTION
OF THE BULLETS SEIZED FROM PETITIONER'S HOUSE. 

MR. JUSTICE STEWART, CONCURRING. 

I ADHERE TO THE VIEW THAT THE ADMISSION AT TRIAL OF EVIDENCE
ACQUIRED IN ALLEGED VIOLATION OF FOURTH AMENDMENT STANDARDS IS NOT OF
ITSELF SUFFICIENT GROUND FOR A COLLATERAL ATTACK UPON AN OTHERWISE
VALID CRIMINAL CONVICTION, STATE OR FEDERAL.  SEE HARRIS V. NELSON, 394
U.S. 286, 307 (DISSENTING OPINION); KAUFMAN V. UNITED STATES, 394 U.S.
217, 242 (DISSENTING OPINION).  BUT UNTIL THE COURT ADOPTS THAT VIEW, I
REGARD MYSELF AS OBLIGATED TO CONSIDER THE MERITS OF THE FOURTH AND
FOURTEENTH AMENDMENT CLAIMS IN A CASE OF THIS KIND.  UPON THAT PREMISE
I JOIN THE OPINION AND JUDGMENT OF THE COURT. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I FIND MYSELF IN DISAGREEMENT WITH THE COURT'S DISPOSITION OF THIS
CASE IN TWO RESPECTS. 

        I 

I CANNOT JOIN THE COURT'S CASUAL TREATMENT OF THE ISSUE THAT HAS
BEEN PRESENTED BY BOTH PARTIES AS THE MAJOR ISSUE IN THIS CASE:
PETITIONER'S CLAIM THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
AT HIS TRIAL.  AS THE COURT ACKNOWLEDGES, PETITIONER MET MR. TAMBURO,
HIS TRIAL COUNSEL, FOR THE FIRST TIME EN ROUTE TO THE COURTROOM ON THE
MORNING OF TRIAL.  ALTHOUGH A DIFFERENT LEGAL AID SOCIETY ATTORNEY HAD
REPRESENTED PETITIONER AT HIS FIRST TRIAL, APPARENTLY NEITHER HE NOR
ANYONE ELSE FROM THE SOCIETY HAD CONFERRED WITH PETITIONER IN THE
INTERVAL BETWEEN TRIALS.  BECAUSE THE DISTRICT COURT DID NOT HOLD AN
EVIDENTIARY HEARING ON THE HABEAS PETITION, THERE IS NO INDICATION IN
THE RECORD OF THE EXTENT TO WHICH MR. TAMBURO MAY HAVE CONSULTED
PETITIONER'S PREVIOUS ATTORNEY, THE ATTORNEYS FOR THE OTHER DEFENDANTS,
OR THE FILES OF THE LEGAL AID SOCIETY.  WHAT THE RECORD DOES DISCLOSE
ON THIS CLAIM IS ESSENTIALLY A COMBINATION OF TWO FACTORS:  THE ENTRY
OF COUNSEL INTO THE CASE IMMEDIATELY BEFORE TRIAL, AND HIS HANDLING OF
THE ISSUES THAT AROSE DURING THE TRIAL.  /1/ 

AS RESPONDENT MUST CONCEDE, COUNSEL'S LAST-MINUTE ENTRY INTO THE
CASE PRECLUDED HIS COMPLIANCE WITH THE STATE RULE REQUIRING THAT
MOTIONS TO SUPPRESS EVIDENCE BE MADE BEFORE TRIAL, EVEN ASSUMING THAT
HE HAD SUFFICIENT ACQUAINTANCE WITH THE CASE TO KNOW WHAT ARGUMENTS
WERE WORTH MAKING.  FURTHERMORE, THE RECORD SUGGESTS THAT HE MAY HAVE
HAD VIRTUALLY NO SUCH ACQUAINTANCE. 

IN THE FIRST PLACE, HE MADE NO OBJECTION TO THE ADMISSION IN
EVIDENCE OF THE OBJECTS FOUND DURING THE SEARCH OF THE CAR AT THE
STATION HOUSE AFTER THE ARREST OF ITS OCCUPANTS, ALTHOUGH THAT SEARCH
WAS OF QUESTIONABLE VALIDITY UNDER FOURTH AMENDMENT STANDARDS, SEE
INFRA. 

SECOND, WHEN THE PROSECUTION OFFERED IN EVIDENCE THE BULLETS FOUND
IN THE SEARCH OF PETITIONER'S HOME, WHICH HAD BEEN EXCLUDED ON DEFENSE
OBJECTION AT THE FIRST TRIAL, MR. TAMBURO OBJECTED TO THEIR ADMISSION,
BUT IN A MANNER THAT SUGGESTED THAT HE WAS A STRANGER TO THE FACTS OF
THE CASE.  WHILE HE INDICATED THAT HE DID KNOW OF THE EARLIER
EXCLUSION, HE APPARENTLY DID NOT KNOW ON WHAT GROUND THE BULLETS HAD
BEEN EXCLUDED, AND BASED HIS OBJECTION ONLY ON THEIR ASSERTED
IRRELEVANCE.  /2/  LATER IN THE TRIAL HE RENEWED HIS OBJECTION ON THE
BASIS OF THE INADEQUACY OF THE WARRANT, STATING, "I DIDN'T KNOW A THING
ABOUT THE SEARCH WARRANT UNTIL THIS MORNING."  APP. 130.  /3/ 

THIRD, WHEN PROSECUTION WITNESS HAVICON MADE AN INCOURT
IDENTIFICATION OF PETITIONER AS THE MAN WHO HAD THREATENED HIM WITH A
GUN DURING ONE OF THE ROBBERIES, MR. TAMBURO ASKED QUESTIONS IN CROSS
EXAMINATION THAT SUGGESTED THAT HE HAD NOT HAD TIME TO SETTLE UPON A
TRIAL STRATEGY OR EVEN TO CONSIDER WHETHER PETITIONER WOULD TAKE THE
STAND.  MR. TAMBURO ASKED WHETHER, AT A PRETRIAL LINEUP, A DETECTIVE
HAD NOT TOLD HAVICON THAT PETITIONER "WAS THE MAN WITH THE GUN."  AFTER
HAVICON'S NEGATIVE ANSWER, THIS COLLOQUY ENSURED: 

     "THE COURT:  I TAKE IT YOU WILL BE ABLE TO DISPORVE THAT, WILL
YOU? 

  "MR. TAMBURO:  WHAT? 

     "THE COURT:  YOU SHOULDN'T ASK THAT QUESTION UNLESS YOU ARE

  PREPARED TO DISPROVE THAT, CONTRADICT HIM. 

     "MR. TAMBURO:  I HAVE THE DEFENDANT'S TESTIMONY. 

     "THE COURT:  DISPROVE IT IN ANY WAY AT ALL. 

     "MR. MEANS (THE PROSECUTOR):  I CON'T UNDERSTAND HOW THE

  DEFENDANT WOULD KNOW WHAT THE DETECTIVES TOLD HIM. 

      "THE COURT:  HE SAID HE IS GOING TO DISPORVE IT BY THE

  DEFENDANT, THAT'S ALL RIGHT, GO AHEAD."  APP. 34. 

THE NEXT WITNESS WAS A POLICE OFFICER WHO HAD BEEN PRESENT AT THE
LINEUP, AND WHO TESTIFIED THAT NO ONE HAD TOLD HAVICON WHOM TO PICK
OUT.  PETITIONER'S COUNSEL DID NOT CROSS-EXAMINE, AND PETITIONER NEVER
TOOK THE STAND. 

ON THIS STATE OF THE RECORD THE COURT OF APPEALS RULED THAT,
ALTHOUGH THE LATE APPOINTMENT OF COUNSEL NECESSITATED CLOSE SCRUTINY
INTO THE EFFECTIVENESS OF HIS REPRESENTATION, PETITIONER "WAS NOT
PREJUDICED BY THE LATE APPOINTMENT OF COUNSEL" BECAUSE NEITHER OF THE
FOURTH AMENDMENT CLAIMS BELATEDLY RAISED JUSTIFIED REVERSAL OF THE
CONVICTION.  408 F.2D 1186, 1196.  I AGREE THAT THE STRENGTH OF THE
SEARCH AND SEIZURE CLAIMS IS AN ELEMENT TO BE CONSIDERED IN THE
ASSESSMENT OF WHETHER COUNSEL WAS ADEQUATELY PREPARED TO MAKE AN
EFFECTIVE DEFENSE, BUT I CANNOT AGREE THAT THE RELEVANCE OF THOSE
CLAIMS IN THIS REGARD DISAPPEARS UPON A CONCLUSION BY AN APPELLATE
COURT THAT THEY DO NOT INVALIDATE THE CONVICTION. 

THIS COURT RECOGNIZED LONG AGO THAT THE DUTY TO PROVIDE COUNSEL "IS
NOT DISCHARGED BY AN ASSIGNMENT AT SUCH A TIME OR UNDER SUCH
CIRCUMSTANCES AS TO PRECLUDE THE GIVING OF EFFECTIVE AID IN THE
PREPARATION AND TRIAL OF THE CASE."  POWELL V. ALABAMA, 287 U.S. 45, 71
(1932); HAWK V. OLSON, 326 U.S. 271, 278 (1945).  WHILE "THE
CONSTITUTION NOWHERE SPECIFIES ANY PERIOD WHICH MUST INTERVENE BETWEEN
THE REQUIRED APPOINTMENT OF COUNSEL AND TRIAL," THE COURT HAS
RECOGNIZED THAT 

"THE DENIAL OF OPPORTUNITY FOR APPOINTED COUNSEL TO CONFER, TO
CONSULT WITH THE ACCUSED AND TO PREPARE HIS DEFENSE, COULD CONVERT THE
APPOINTMENT OF COUNSEL INTO A SHAM AND NOTHING MORE THAN A FORMAL
COMPLIANCE WITH THE CONSTITUTION'S REQUIREMENT THAT AN ACCUSED BE GIVEN
THE ASSISTANCE OF COUNSEL."  AVERY V. ALABAMA, 308 U.S. 444, 446
(1940).  WHERE COUNSEL HAS NO ACQUAINTANCE WITH THE FACES OF THE CASE
AND NO OPPORTUNITY TO PLAN A DEFENSE, THE RESULT IS THAT THE DEFENDANT
IS EFFECTIVELY DENIED HIS CONSTITUTIONAL RIGHT TO ASSISTANCE OF
COUNSEL. 

IT SEEMS TO ME THAT WHAT THIS RECORD REVEALS ABOUT COUNSEL'S
HANDLING OF THE SEARCH AND SEIZURE CLAIMS AND ABOUT THE TENOR OF HIS
CROSS-EXAMINATION OF THE GOVERNMENT WITNESS HAVICON, WHEN COUPLED WITH
HIS LATE ENTRY INTO THE CASE, CALLED FOR MORE EXPLORATION BY THE
DISTRICT COURT BEFORE PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL
CLAIM COULD BE DISMISSED.  SUCH AN EXPLORATION SHOULD HAVE BEEN
DIRECTED TO ASCERTAINING WHETHER THE CIRCUMSTANCES UNDER WHICH MR.
TAMBURO WAS REQUIRED TO UNDERTAKE PETITIONER'S DEFENSE AT THE SECOND
TRIAL WERE SUCH AS TO SEND HIM INTO THE COURTROOM WITH SO LITTLE
KNOWLEDGE OF THE CASE AS TO RENDER HIM INCAPABLE OF AFFORDING HIS
CLIENT ADEQUATE REPRESENTATION.  THE EVENT OF THAT EXPLORATION WOULD
TURN, NOT ON A MERE ASSESSMENT OF PARTICULAR MISSTEPS OR OMISSIONS OF
COUNSEL, WHETHER OR NOT CAUSED BY NEGLIGENCE, CF. MCMANN V. RICHARDSON,
397 U.S. 759 (1970), BUT ON THE DISTRICT COURT'S EVALUATION OF THE
TOTAL PICTURE, WITH THE OBJECTIVE OF DETERMINING WHETHER PETITIONER WAS
DEPRIVED OF RUDIMENTARY LEGAL ASSISTANCE.  SEE WILLIAMS V. BETO, 354
F.2D 698 (C.A. 5TH CIR. 1965).  AND, OF COURSE, SUCH AN EXPLORATION
WOULD NOT BE CONFINED TO THE THREE EPISODES THAT, IN MY OPINION,
TRIGGERED THE NECESSITY FOR A HEARING. 

IT IS NOT AN ANSWER TO PETITIONER'S CLAIM FOR A REVIEWING COURT
SIMPLY TO CONCLUDE THAT HE HAS FAILED AFTER THE FACT TO SHOW THAT, WITH
ADEQUATE ASSISTANCE, HE WOULD HAVE PREVAILED AT TRIAL.  GLASSER V.
UNITED STATES, 315 U.S. 60, 75-76 (1942); CF. WHITE V. MARYLAND, 373
U.S. 59 (1963); REYNOLDS V. COCHRAN, 365 U.S. 525, 530-533 (1961). 
FURTHER INQUIRY MIGHT SHOW, OF COURSE, THAT COUNSEL'S OPPORTUNITY FOR
PREPARATION WAS ADEQUATE TO PROTECT PETITIONER'S INTERESTS, /4/  BUT
PETITIONER DID, IN MY VIEW, RAISE A SUFFICIENT DOUBT ON THAT SCORE TO
BE ENTITLED TO AN EVIDENTIARY HEARING.  /5/

II 

IN SUSTAINING THE SEARCH OF THE AUTOMOBILE I BELIEVE THE COURT
IGNORES THE FRAMEWORK OF OUR PAST DECISIONS CIRCUMSCRIBING THE SCOPE OF
PERMISSIBLE SEARCH WITHOUT A WARRANT.  THE COURT HAS LONG READ THE
FOURTH AMENDMENT'S PROSCRIPTION OF "UNREASONABLE" SEARCHES AS IMPOSING
A GENERAL PRINCIPLE THAT A SEARCH WITHOUT A WARRANT IS NOT JUSTIFIED BY
THE MERE KNOWLEDGE BY THE SEARCHING OFFICERS OF FACTS SHOWING PROBABLE
CAUSE.  THE "GENERAL REQUIREMENT THAT A SEARCH WARRANT BE OBTAINED" IS
BASIC TO THE AMENDMENT'S PROTECTION OF PRIVACY, AND "'THE BURDEN IS ON
THOSE SEEKING (AN) EXCEMPTION . . . TO SHOW THE NEED FOR IT.'"  E.G.,
CHIMEL V. CALIFORNIA, 395 U.S. 752, 762 (1969); KATZ V. UNITED STATES,
389 U.S. 347, 356-358 (1967); WARDEN V. HAYDEN, 387 U.S. 294, 299
(1967); PRESTON V. UNITED STATES, 376 U.S. 364, 367 (1964); UNITED
STATES V. JEFFERS, 342 U.S. 48, 51 (1951); MCDONALD V. UNITED STATES,
335 U.S. 451, 455-456 (1948); AGNELLO V. UNITED STATES, 269 U.S. 20, 33
(1925). 

FIDELITY TO THIS ESTABLISHED PRINCIPLE REQUIRES THAT, WHERE
EXCEPTIONS ARE MADE TO ACCOMODATE THE EXIGENCIES OF PARTICULAR
SITUATIONS, THOSE EXCEPTIONS BE NO BROADER THAN NECESSITATED BY THE
CIRCUMSTANCES PRESENTED.  FOR EXAMPLE, THE COURT HAS RECOGNIZED THAT AN
ARREST CREATES AN EMERGENCY SITUATION JUSTIFYING A WARRANTLESS SEARCH
OF THE ARRESTEE'S PERSON AND OF "THE AREA FROM WITHIN WHICH HE MIGHT
GAIN POSSESSION OF A WEAPON OR DESTRUCTIBLE EVIDENCE"; HOWEVER, BECAUSE
THE EXIGENCY GIVING RISE TO THIS EXCEPTION EXTENDS ONLY THAT FAR, THE
SEARCH MAY GO NO FURTHER.  CHIMEL V. CALIFORNIA, 395 U.S.,AT 763;
TRUPIANO V. UNITED STATES, 334 U.S. 699, 705, 708 (1948).  SIMILARLY WE
HELD IN TERRY V. OHIO, 392 U.S. 1 (1968), THAT A WARRANTLESS SEARCH IN
A "STOP AND FRISK" SITUATION MUST "BE STRICTLY CIRCUMSCRIBED BY THE
EXIGENCIES WHICH JUSTIFY ITS INITIATION."  ID., AT 26.  ANY INTRUSION
BEYOND WHAT IS NECESSARY FOR THE PERSONAL SAFETY OF THE OFFICER OR
OTHERS NEARBY IS FORBIDDEN. 

WHERE OFFICERS HAVE PROBABLE CAUSE TO SEARCH A VEHICLE ON A PUBLIC
WAY, A FURTHER LIMITED EXCEPTION TO THE WARRANT REQUIREMENT IS
REASONABLE BECAUSE "THE VEHICLE CAN BE QUICKLY MOVED OUT OF THE
LOCALITY OR JURISDICTION IN WHICH THE WARRANT MUST BE SOUGHT."  CARROLL
V. UNITED STATES, 267 U.S. 132, 153 (1925).  BECAUSE THE OFFICERS MIGHT
BE DEPRIVED OF VALUABLE EVIDENCE IF REQUIRED TO OBTAIN A WARRANT BEFORE
EFFECTING ANY SEARCH OR SEIZURE, I AGREE WITH THE COURT THAT THEY
SHOULD BE PERMITTED TO TAKE THE STEPS NECESSARY TO PRESERVE EVIDENCE
AND TO MAKE THE STEPS NECESSARY TO PRESERVE EVIDENCE AND TO MAKE A
SEARCH POSSIBLE.  /6/  CF. ALI, MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE
SEC. 6.03 (TENT.  DRAFT NO. 3, 1970).  THE COURT HOLDS THAT THOSE STEPS
INCLUDE MAKING A WARRANTLESS SEARCH OF THE ENTIRE VEHICLE ON THE
HIGHWAY-- A CONCLUSION REACHED BY THE COURT IN CARROLL WITHOUT
DISCUSSION-- AND INDEED APPEARS TO GO FURTHER AND TO CONDONE THE
REMOVAL OF THE CAR TO THE POLICE STATION FOR A WARRANTLESS SEARCH THERE
AT THE CONVENIENCE OF THE POLICE.  /7/  I CANNOT AGREE THAT THIS RESULT
IS CONSISTENT WITH OUR INSISTENCE IN OTHER AREAS THAT DEPARTURES FROM
THE WARRANT REQUIREMENT STRICTLY CONFORM TO THE EXIGENCY PRESENTED. 

THE COURT CONCEDES THAT THE POLICE COULD PREVENT REMOVAL OF THE
EVIDENCE BY TEMPORARILY SEIZING THE CAR FOR THE TIME NECESSARY TO
OBTAIN A WARRANT.  IT DOES NOT DISPUTE THAT SUCH A COURSE WOULD FULLY
PROTECT THE INTERESTS OF EFFECTIVE LAW ENFORCEMENT; RATHER IT STATES
THAT WHETHER TEMPORARY SEIZURE IS A "LESSER" INTRUSION THAN WARRANTLESS
SEARCH "IS ITSELF A DEBATABLE QUESTION AND THE ANSWER MAY DEPEND ON A
VARIETY OF CIRCUMSTANCES."  ANTE, AT 51-52.  /8/  I BELIEVE IT CLEAR
THAT A WARRANTLESS SEARCH INVOLVES THE GREATER SACRIFICE OF FOURTH
AMENDMENT VALUES. 

THE FOURTH AMENDMENT PROSCRIBES, TO BE SURE, UNREASONABLE "SEIZURES"
AS WELL AS "SEARCHES."  HOWEVER, IN THE CIRCUMSTANCES IN WHICH THIS
PROBLEM IS LIKELY TO OCCUR, THE LESSER INTRUSION WILL ALMOST ALWAYS BE
THE SIMPLE SEIZURE OF THE CAR FOR THE PERIOD-- PERHAPS A DAY--
NECESSARY TO ENABLE THE OFFICERS TO OBTAIN A SEARCH WARRANT.  IN THE
FIRST PLACE, AS THIS CASE SHOWS, THE VERY FACTS ESTABLISHING PROBABLE
CAUSE TO SEARCH WILL OFTEN ALSO JUSTIFY ARREST OF THE OCCUPANTS OF THE
VEHICLE.  SINCE THE OCCUPANTS THEMSELVES ARE TO BE TAKEN INTO CUSTODY,
THEY WILL SUFFER MINIMAL FURTHER INCONVENIENCE FROM THE TEMPORARY
IMMOBILIZATION OF THEIR VEHICLE.  EVEN WHERE NO ARRESTS ARE MADE,
PERSONS WHO WISH TO AVOID A SEARCH-- EITHER TO PROTECT THEIR PRIVACY OR
TO CONCEAL INCRIMINATING EVIDENCE-- WILL ALMOST CERTAINLY PREFER A
BRIEF LOSS OF THE USE OF THE VEHICLE IN EXCHANGE FOR THE OPPORTUNITY TO
HAVE A MAGISTRATE PASS UPON THE JUSTIFICATION FOR THE SEARCH.  TO BE
SURE, ONE CAN CONCEIVE OF INSTANCES IN WHICH THE OCCUPANT, HAVING
NOTHING TO HIDE AND LACKING CONCERN FOR THE PRIVACY OF THE AUTOMOBILE,
WOULD BE MORE DEEPLY OFFENDED BY A TEMPORARY IMMOBILIZATION OF HIS
VEHICLE THAN BY A PROMPT SEARCH OF IT.  HOWEVER, SUCH A PERSON ALWAYS
REMAINS FREE TO CONSENT TO AN IMMEDIATE SEARCH, THUS AVOIDING ANY
DELAY.  WHERE CONSENT IS NOT FORTHCOMING, THE OCCUPANTS OF THE CAR HAVE
AN INTEREST IN PRIVACY THAT IS PROTECTED BY THE FOURTH AMENDMENT EVEN
WHERE THE CIRCUMSTANCES JUSTIFY A TEMPORARY SEIZURE.  TERRY V. OHIO,
SUPRA.  THE COURT'S ENDORSEMENT OF A WARRANTLESS INVASION OF THAT
PRIVACY WHERE ANOTHER COURSE WOULD SUFFICE IS SIMPLY INCONSISTENT WITH
OUR REPEATED STRESS ON THE FOURTH AMENDMENT'S MANDATE OF "ADHERENCE TO
JUDICIAL PROCESSES.'"  E.G., KATZ V. UNITED STATES, 389 U.S.,AT 357. 
/9/ 

INDEED, I BELIEVE THIS CONCLUSION IS IMPLICIT IN THE OPINION OF THE
UNANIMOUS COURT IN PRESTON V. UNITED STATES, 376 U.S. 364 (1964).  THE
COURT THERE PURPORTED TO DECIDE WHETHER A FACTUAL SITUATION VIRTUALLY
IDENTICAL TO THE ONE NOW BEFORE US WAS "SUCH AS TO FALL WITHIN ANY OF
THE EXCEPTIONS TO THE CONSTITUTIONAL RULE THAT A SEARCH WARRANT MUST BE
HAD BEFORE A SEARCH MAY BE MADE."  ID., AT 367.  THE COURT CONCLUDED
THAT NO EXCEPTION WAS AVAILABLE, STATING THAT "SINCE THE MEN WERE UNDER
ARREST AT THE POLICE STATION AND THE CAR WAS IN POLICE CUSTODY AT A
GARAGE, (THERE WAS NO) DANGER THAT THE CAR WOULD BE MOVED OUT OF THE
LOCALITY OR JURISDICTION."  ID., AT 368.  THE COURT'S RELIANCE ON THE
POLICE CUSTODY OF THE CAR AS ITS REASON FOR HOLDING "THAT THE SEARCH OF
THE CAR WITHOUT A WARRANT FAILED TO MEET THE TEST OF REASONABLENESS
UNDER THE FOURTH AMENDMENT," IBID., CAN ONLY HAVE BEEN BASED ON THE
PREMISE THAT THE MORE REASONABLE COURSE WAS FOR THE POLICE TO RETAIN
CUSTODY OF THE CAR FOR THE SHORT TIME NECESSARY TO OBTAIN A WARRANT. 
THE COURT EXPRESSLY DID NOT RELY, AS SUGGESTED TODAY, ON THE FACT THAT
AN ARREST FOR VAGRANCY PROVIDED "NO CAUSE TO BELIEVE THAT EVIDENCE OF
CRIME WAS CONCEALED IN THE AUTO."  ANTE, AT 47; SEE 376 U.S.,AT 368;
WOOD V. CROUSE, 417 F.2D 394, 397-398 (C.A. 10TH CIR. 1969).  THE COURT
NOW DISCARDS THE APPROACH TAKEN IN PRESTON, AND CREATES A SPECIAL RULE
FOR AUTOMOBILE SEARCHES THAT IS SERIOUSLY AT ODDS WITH GENERALLY
APPLIED FOURTH AMENDMENT PRINCIPLES. 

        III 

THE COURT ACCEPTS THE CONCLUSION OF THE TWO COURTS BELOW THAT THE
INTRODUCTION OF THE BULLETS FOUND IN PETITIONER'S HOME, IF ERROR, WAS
HARMLESS.  ALTHOUGH, AS EXPLAINED ABOVE, I DO NOT AGREE THAT THIS
DESTROYS THE RELEVANCE OF THE ISSUE TO THE INEFFECTIVENESS OF COUNSEL
CLAIM, I AGREE THAT THE RECORD SUPPORTS THE LOWER COURTS' CONCLUSION
THAT THIS ITEM OF EVIDENCE, TAKEN ALONE, WAS HARMLESS BEYOND A
REASONABLE DOUBT. 

/1/  RESPONDENT CONCEDES IN THIS COURT THAT "NO OTHER FACTS ARE
AVAILABLE TO DETERMINE THE AMOUNT AND THE QUALITY OF THE PREPARATION
FOR TRIAL PURSUED BY MR. TAMBURO OR THE AMOUNT OF EVIDENTIARY MATERIAL
KNOWN BY AND AVAILABLE TO HIM IN DETERMINING WHAT, IF ANY, EVIDENTIARY
OBJECTIONS WERE MANDATED OR WHAT, IF ANY, DEFENSES WERE AVAILABLE TO
PETITIONER."  BRIEF FOR RESPONDENT 13.  THE COURT OF APPEALS STATED:
"WE DO NOT KNOW WHAT PREPARATION, IF ANY, COUNSEL WAS ABLE TO
ACCOMPLISH PRIOR TO THE DATE OF THE TRIAL AS HE DID NOT TESTIFY IN THE
STATE HABEAS CORPUS PROCEEDING AND THERE WAS NO EVIDENTIARY HEARING IN
THE DISTRICT COURT.  FROM THE LOWER COURT OPINION, AS WILL APPEAR
LATER, WE ARE LED TO BELIEVE THAT COUNSEL WAS NOT WHOLLY FAMILIAR WITH
ALL ASPECTS OF THE CASE BEFORE TRIAL."  408 F.2D 1186, 1191. 

/2/  MR. TAMBURO STATED TO THE TRIAL COURT: 

"YOUR HONOR, AT THE FIRST TRIAL, THE DISTRICT ATTORNEY ATTEMPTED TO
INTRODUCE INTO EVIDENCE SOME .38 CALIBRE BULLETS THAT WERE FOUND AT THE
CHAMBERS' HOME AFTER HIS ARREST . . . AT THAT TRIAL, IT WAS OBJECTED TO
AND THE OBJECTION WAS SUSTAINED, AND I WOULD ALSO LIKE TO OBJECT TO IT
NOW, I DON'T THINK IT IS GOOD FOR THE JURY TO HEAR IT. I DON'T FEEL
THERE IS ANY RELEVANCY OR CONNECTION BETWEEN THE FACT THERE WERE .38
CALIBRE BULLETS AT HIS HOME AND THE FACT THAT A .38 CALIBRE GUN WAS
FOUND, NOT ON THE PERSON OF CHAMBERS, BUT IN THE GROUP."  APP. 82. 

THIS WAS THE ONLY INSTANCE IN WHICH MR. TAMBURO EXPRESSED ANY
KNOWLEDGE OF WHAT HAD TRANSPIRED AT THE FIRST TRIAL, AND IT DOES NOT
APPEAR WHETHER HE LEARNED OF THE EXCLUSION FROM HIS BRIEF TALK WITH
PETITIONER EN ROUTE TO THE COURTROOM OR FROM SOURCES WITHIN THE LEGAL
AID SOCIETY.  THE RECORD DOES NOT DISCLOSE THE REASON FOR THE EXCLUSION
OF THE BULLETS AT THE FIRST TRIAL.     /3/  THIS COLLOQUY FOLLOWED THE
RENEWED OBJECTION: 

"THE COURT:  WELL, OF COURSE, YOU HAVE KNOWN ABOUT THIS FROM THE
OTHER TRIAL THREE WEEKS AGO. 

"MR. TAMBURO:  I WASN'T THE ATTORNEY AT THE OTHER TRIAL. 

"THE COURT:  BUT, YOU KNEW ABOUT IT? 

"MR. TAMBURO:  I DIDN'T KNOW A THING ABOUT THE SEARCH WARRANT UNTIL
THIS MORNING. 

"THE COURT:  YOU KNEW ABOUT THE EVIDENCE ABOUT TO BE INTRODUCED, YOU
TOLD ME ABOUT IT.     "MR. TAMBURO:  IT WASN'T ADMITTED. 

"THE COURT:  THAT DOESN'T MEAN I HAVE TO EXCLUDE IT NOW."  ID., AT
130. 

THE COURT PROCEEDED TO OVERRULE THE OBJECTION ON THE GROUND THAT IT
HAD NOT BEEN MADE IN A PRETRIAL MOTION, ADDING THAT "I THINK THERE IS
REASONABLE GROUND FOR MAKING A SEARCH HERE, EVEN WITHOUT A WARRANT." 
ID., AT 130-131. 

/4/  IN AVERY, THIS COURT CONCLUDED ON THE BASIS OF A HEARING:
"THAT THE EXAMINATION AND PREPARATION OF THE CASE, IN THE TIME
PERMITTED BY THE TRIAL JUDGE, HAD BEEN ADEQUATE FOR COUNSEL TO EXHAUST
ITS EVERY ANGLE IS ILLUMINATED BY THE ABSENCE OF ANY INDICATION, ON THE
MOTION AND HEARING FOR NEW TRIAL, THAT THEY COULD HAVE DONE MORE HAD
ADDITIONAL TIME BEEN GRANTED."  308 U.S.,AT 452. 

/5/  THE ABSENCE OF ANY REQUEST BY COUNSEL FOR A CONTINUANCE OF THE
TRIAL SHOULD NOT, IN MY OPINION, SERVE TO VITIATE PETITIONER'S CLAIM AT
THIS JUNCTURE. 

/6/  WHERE A SUSPECT IS LAWFULLY ARRESTED IN THE AUTOMOBILE, THE
OFFICERS MAY, OF COURSE, PERFORM A SEARCH WITHIN THE LIMITS PRESCRIBED
BY CHIMEL AS AN INCIDENT TO THE LAWFUL ARREST.  HOWEVER, AS THE COURT
RECOGNIZES, THE SEARCH HERE EXCEEDED THOSE LIMITS.  NOR WAS THE SEARCH
HERE WITHIN THE LIMITS IMPOSED BY PRE-CHIMEL LAW FOR SEARCHES INCIDENT
TO ARREST; THEREFORE, THE RETROACTIVITY OF CHIMEL IS NOT DRAWN INTO
QUESTION IN THIS CASE.  SEE PRESTON V. UNITED STATES, 376 U.S. 364
(1964). 

/7/  THE COURT DISREGARDS THE FACT THAT CARROLL, AND EACH OF THIS
COURT'S DECISIONS UPHOLDING A WARRANTLESS VEHICLE SEARCH ON ITS
AUTHORITY, INVOLVED A SEARCH FOR CONTRABAND.  BRINEGAR V. UNITED
STATES, 338 U.S. 160 (1949); SCHER V. UNITED STATES, 305 U.S. 251
(1938); HUSTY V. UNITED STATES, 282 U.S. 694 (1931); SEE UNITED STATES
V. DIRE, 332 U.S. 581, 584-586 (1948).  ALTHOUGH SUBSEQUENT DICTA HAVE
OMITTED THIS LIMITATION, SEE DYKE V. TAYLOR IMPLEMENT MFG. CO., 391
U.S. 216, 221 (1968); UNITED STATES V. VENTRESCA, 380 U.S. 102, 107 N.
2 (1965); UNITED STATES V. RABINOWITZ, 339 U.S. 56, 61 (1950), ID., AT
73 (FRANKFURTER, J., DISSENTING), THE CARROLL DECISION HAS NOT UNTIL
TODAY BEEN HELD TO AUTHORIZE A GENERAL SEARCH OF A VEHICLE FOR EVIDENCE
OF CRIME, WITHOUT A WARRANT, IN EVERY CASE WHERE PROBABLE CAUSE
EXISTS. 

/8/  THE COURT, UNABLE TO DECIDE WHETHER SEARCH OR TEMPORARY SEIZURE
IS THE "LESSER" INTRUSION, IN THIS CASE AUTHORIZES BOTH.  THE COURT
CONCLUDES THAT IT WAS REASONABLE FOR THE POLICE TO TAKE THE CAR TO THE
STATION, WHERE THEY SEARCHED IT ONCE TO NO AVAIL.  THE SEARCHING
OFFICERS THEN ENTERED THE STATION, INTERROGATED PETITIONER AND THE
CAR'S OWNER, AND RETURNED LATER FOR ANOTHER SEARCH OF THE CAR-- THIS
ONE SUCCESSFUL.  AT ALL TIMES THE CAR AND ITS CONTENDS WERE SECURE
AGAINST REMOVAL OR DESTRUCTION.  NEVERTHELESS, THE COURT APPROVES THE
SEARCHES WITHOUT EVEN AN INQUIRY INTO THE OFFICERS' ABILITY PROMPTLY TO
TAKE THEIR CASE BEFORE A MAGISTRATE. 

/9/  CIRCUMSTANCES MIGHT ARISE IN WHICH IT WOULD BE IMPRACTICABLE TO
IMMOBILIZE THE CAR FOR THE TIME REQUIRED TO OBTAIN A WARRANT-- FOR
EXAMPLE, WHERE A SINGLE POLICE OFFICER MUST TAKE ARRESTED SUSPECTS TO
THE STATION, AND HAS NO WAY OF PROTECTING THE SUSPECTS' CAR DURING HIS
ABSENCE.  IN SUCH SITUATIONS IT MIGHT BE WHOLLY REASONABLE TO PERFORM
AN ON-THE-SPOT SEARCH BASED ON PROBABLE CAUSE.  HOWEVER, WHERE NOTHING
IN THE SITUATION MAKES IMPRACTICABLE THE OBTAINING OF A WARRANT, I
CANNOT JOIN THE COURT IN SHUNTING ASIDE THAT VITAL FOURTH AMENDMENT
SAFEGUARD. 

VINCENT J. GROGAN, BY APPOINTMENT OF THE COURT, 396 U.S. 983, ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

CAROL MARY LOS ARGUED THE CAUSE FOR RESPONDENT, PRO HAC VICE.  WITH
HER ON THE BRIEF WAS ROBERT W. DUGGAN. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, SAMUEL A. HIRSCHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND AMY JUVILER AND BRENDA SOLOFF,
ASSISTANT ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF NEW YORK AS
AMICUS CURIAE. 
..END :



BALDWIN V. NEW YORK, 399 U.S. 66 


       BALDWIN V. NEW YORK

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 188.  ARGUED DECEMBER 9, 1969-- DECIDED JUNE 22, 1970 


APPELLANT WAS CHARGED WITH A MISDEMEANOR IN THE NEW YORK CITY
CRIMINAL COURT.  UNDER SEC. 40 OF THE NEW YORK CITY CRIMINAL COURT ACT
ALL TRIALS IN THAT COURT ARE WITHOUT A JURY.  APPELLANT'S MOTION FOR A
JURY TRIAL WAS DENIED, HE WAS CONVICTED, AND GIVEN THE MAXIMUM SENTENCE
OF A YEAR'S IMPRISONMENT.  THE HIGHEST STATE COURT AFFIRMED, REJECTING
APPELLANT'S CONTENTION THAT SEC. 40 WAS UNCONSTITUTIONAL.  HELD:  THE
JUDGMENT IS REVERSED.  PP. 67-76. 

24 N.Y.2D 207, 247 N.E.2D 260, REVERSED. 

MR. JUSTICE WHITE, JOINED BY MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL, CONCLUDED THAT DEFENDANTS ACCUSED OF SERIOUS CRIMES MUST,
UNDER THE SIXTH AMENDMENT, AS MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT, BE AFFORDED THE RIGHT TO TRIAL BY JURY, DUNCAN V.
LOUISIANA, 391 U.S. 145, AND THOUGH "PETTY CRIMES" MAY BE TRIED WITHOUT
A JURY, NO OFFENSE CAN BE DEEMED "PETTY" FOR PURPOSES OF THE RIGHT TO
TRIAL BY JURY WHERE IMPRISONMENT FOR MORE THAN SIX MONTHS IS
AUTHORIZED.  PP. 68-74. 

MR. JUSTICE BLACK, JOINED BY MR. JUSTICE DOUGLAS, CONCLUDED THAT THE
CONSTITUTIONAL GUARANTEE OF THE RIGHT TO TRIAL BY JURY APPLIES TO "ALL
CRIMES" AND NOT JUST TO THOSE CRIMES DEEMED TO BE "SERIOUS."  PP. 74
76. 

MR. JUSTICE WHITE ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL JOIN. 

APPELLANT WAS ARRESTED AND CHARGED WITH "JOSTLING"-- A CLASS A
MISDEMEANOR IN NEW YORK, PUNISHABLE BY A MAXIMUM TERM OF IMPRISONMENT
OF ONE YEAR.  /1/  HE WAS BROUGHT TO TRIAL IN THE NEW YORK CITY
CRIMINAL COURT.  SECTION 40 OF THE NEW YORK CITY CRIMINAL COURT ACT
DECLARES THAT ALL TRIALS IN THAT COURT SHALL BE WITHOUT A JURY.  /2/
APPELLANT'S PRETRIAL MOTION FOR JURY TRIAL WAS ACCORDINGLY DENIED.  HE
WAS CONVICTED AND SENTENCED TO IMPRISONMENT FOR THE MAXIMUM TERM.  THE
NEW YORK COURT OF APPEALS AFFIRMED THE CONVICTION, REJECTING
APPELLANT'S ARGUMENT THAT SEC. 40 WAS UNCONSTITUTIONAL INSOFAR AS IT
DENIED HIM AN OPPORTUNITY FOR JURY TRIAL.  WE NOTED PROBABLE
JURISDICTION.  /4/  WE REVERSE. 

IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), WE HELD THAT THE SIXTH
AMENDMENT, AS APPLIED TO THE STATES THROUGH THE FOURTEENTH, REQUIRES
THAT DEFENDANTS ACCUSED OF SERIOUS CRIMES BE AFFORDED THE RIGHT TO
TRIAL BY JURY.  WE ALSO REAFFIRMED THE LONG-ESTABLISHED VIEW THAT SO
CALLED "PETTY OFFENSES" MAY BE TRIED WITHOUT A JURY.  /5/  THUS THE
TASK BEFORE US IN THIS CASE IS THE ESSENTIAL IF NOT WHOLLY SATISFACTORY
ONE, SEE DUNCAN, AT 161, OF DETERMINING THE LINE BETWEEN "PETTY" AND
"SERIOUS" FOR PURPOSES OF THE SIXTH AMENDMENT RIGHT TO JURY TRIAL. 

PRIOR CASES IN THIS COURT NARROW OUR INQUIRY AND FURNISH US WITH THE
STANDARD TO BE USED IN RESOLVING THIS ISSUE.  IN DECIDING WHETHER AN
OFFENSE IS "PETTY," WE HAVE SOUGHT OBJECTIVE CRITERIA REFLECTING THE
SERIOUSNESS WITH WHICH SOCIETY REGARDS THE OFFENSE, DISTRICT OF
COLUMBIA V. CLAWANS, 300 U.S. 617, 628 (1937), AND WE HAVE FOUND THE
MOST RELEVANT SUCH CRITERIA IN THE SEVERITY OF THE MAXIMUM AUTHORIZED
PENALTY.  FRANK V. UNITED STATES, 395 U.S. 147, 148 (1969); DUNCAN V.
LOUISIANA, SUPRA, AT 159-161; DISTRICT OF COLUMBIA V. CLAWANS, SUPRA,
AT 628.  APPLYING THESE GUIDELINES, WE HAVE HELD THAT A POSSIBLE SIX
MONTH PENALTY IS SHORT ENOUGH TO PERMIT CLASSIFICATION OF THE OFFENSE
AS "PETTY," DYKE V. TAYLOR IMPLEMENT CO., 391 U.S. 216, 220 (1968);
CHEFF V. SCHNACKENBERG, 384 U.S. 373 (1966), BUT THAT A TWO-YEAR
MAXIMUM IS SUFFICIENTLY "SERIOUS" TO REQUIRE AN OPPORTUNITY FOR JURY
TRIAL, DUNCAN V. LOUISIANA, SUPRA.  THE QUESTION IN THIS CASE IS
WHETHER THE POSSIBILITY OF A ONE-YEAR SENTENCE IS ENOUGH IN ITSELF TO
REQUIRE THE OPPORTUNITY FOR A JURY TRIAL.  WE HOLD THAT IT IS.  MORE
SPECIFICALLY, WE HAVE CONCLUDED THAT NO OFFENSE CAN BE DEEMED "PETTY"
FOR PURPOSES OF THE RIGHT TO TRIAL BY JURY WHERE IMPRISONMENT FOR MORE
THAN SIX MONTHS IS AUTHORIZED.  /6/ 

NEW YORK HAS URGED US TO DRAW THE LINE BETWEEN "PETTY" AND "SERIOUS"
TO COINCIDE WITH THE LINE BETWEEN MISDEMEANOR AND FELONY.  AS IN MOST
STATES, THE MAXIMUM SENTENCE OF IMPRISONMENT FOR A MISDEMEANOR IN NEW
YORK IS ONE YEAR, FOR A FELONY CONSIDERABLY LONGER.  /7/  IT IS ALSO
TRUE THAT THE COLLATERAL CONSEQUENCES ATTACHING TO A FELONY CONVICTION
ARE MORE SEVERE THAN THOSE ATTACHING TO A CONVICTION FOR A
MISDEMEANOR.  /8/  AND, LIKE OTHER STATES, NEW YORK DISTINGUISHES
BETWEEN MISDEMEANORS AND FELONIES IN DETERMINING SUCH THINGS AS WHETHER
CONFINEMENT SHALL BE IN COUNTY OR REGIONAL JAILS, RATHER THAN STATE
PRISON, /9/  AND WHETHER PROSECUTION MAY PROCEED BY INFORMATION OR
COMPLAINT, RATHER THAN BY GRAND JURY INDICTMENT.  /10/  BUT WHILE THESE
CONSIDERATIONS REFLECT WHAT MAY READILY BE ADMITTED-- THAT A FELONY
CONVICTION IS MORE SERIOUS THAN A MISDEMEANOR CONVICTION-- THEY IN NO
WAY DETRACT FROM APPELLANT'S CONTENTION THAT SOME MISDEMEANORS ARE ALSO
"SERIOUS" OFFENSES.  INDEED WE LONG AGO DECLARED THAT THE SIXTH
AMENDMENT RIGHT TO JURY TRIAL "IS NOT TO BE CONSTRUED AS RELATING ONLY
TO FELONIES, OR OFFENCES PUNISHABLE BY CONFINEMENT IN THE
PENITENTIARY.  IT EMBRACES AS WELL SOME CLASSES OF MISDEMEANORS, THE
PUNISHMENT OF WHICH INVOLVES OR MAY INVOLVE THE DEPRIVATION OF THE
LIBERTY OF THE CITIZEN."  CALLAN V. WILSON, 127 U.S. 540, 549 (1888). 
/11/ 

A BETTER GUIDE "(IN DETERMINING WHETHER THE LENGTH OF THE AUTHORIZED
PRISON TERM OR THE SERIOUSNESS OF OTHER PUNISHMENT IS ENOUGH IN ITSELF
TO REQUIRE A JURY TRIAL" IS DISCLOSED BY "THE EXISTING LAWS AND
PRACTICES IN THE NATION."  DUNCAN V. LOUISIANA, SUPRA, AT 161.  IN THE
FEDERAL SYSTEM, AS WE NOTED IN DUNCAN, PETTY OFFENSES HAVE BEEN DEFINED
AS THOSE PUNISHABLE BY NO MORE THAN SIX MONTHS IN PRISON AND A $500
FINE.  /12/  AND, WITH A FEW EXCEPTIONS, CRIMES TRIABLE WITHOUT A JURY
IN THE AMERICAN STATES SINCE THE LATE 18TH CENTURY WERE ALSO GENERALLY
PUNISHABLE BY NO MORE THAN A SIX-MONTH PRISON TERM.  /13/  INDEED, WHEN
DUNCAN WAS DECIDED TWO TERMS AGO, WE COULD DISCOVER ONLY THREE
INSTANCES IN WHICH A STATE DENIED JURY TRIAL FOR A CRIME PUNISHABLE BY
IMPRISONMENT FOR LONGER THAN SIX MONTHS:  THE LOUISIANA SCHEME AT ISSUE
IN DUNCAN, A NEW JERSEY STATUTE PUNISHING DISORDERLY CONDUCT, AND THE
NEW YORK CITY STATUTE AT ISSUE IN THIS CASE.  /14/  THESE THREE
INSTANCES HAVE SINCE BEEN REDUCED TO ONE.  IN RESPONSE TO THE DECISION
IN DUNCAN, LOUISIANA HAS LOWERED THE PENALTY FOR CERTAIN MISDEMEANORS
TO SIX MONTHS, AND HAS PROVIDED FOR A JURY TRIAL WHERE THE PENALTY
STILL EXCEEDS SIX MONTHS.  /15/  NEW JERSEY HAS AMENDED ITS DISORDERLY
PERSONS STATUTE BY REDUCING THE MAXIMUM PENALTY TO SIX MONTHS'
IMPRISONMENT AND A $500 FINE.  /16/  EVEN NEW YORK STATE WOULD HAVE
PROVIDED APPELLANT WITH A SIX-MAN-JURY TRIAL FOR THIS OFFENSE IF HE HAD
BEEN TRIED OUTSIDE THE CITY OF NEW YORK.  /17/  IN THE ENTIRE NATION,
NEW YORK CITY ALONE DENIES AN ACCUSED THE RIGHT TO INTERPOSE BETWEEN
HIMSELF AND A POSSIBLE PRISON TERM OF OVER SIX MONTHS, THE COMMONSENSE
JUDGMENT OF A JURY OF HIS PEERS.  /18/ 

IT IS TRUE THAT IN A NUMBER OF THESE STATES THE JURY PROVIDED
CONSISTS OF LESS THAN THE 12-MAN, UNANIMOUS-VERDICT JURY AVAILABLE IN
FEDERAL CASES.  /19/  BUT THE PRIMARY PURPOSE OF THE JURY IS TO PREVENT
THE POSSIBILITY OF OPPRESSION BY THE GOVERNMENT; THE JURY INTERPOSES
BETWEEN THE ACCUSED AND HIS ACCURSER THE JUDGEMENT OF LAYMEN WHO ARE
LESS TUTORED PERHAPS THAN A JUDGE OR PANEL OF JUDGES, BUT WHO AT THE
SAME TIME ARE LESS LIKELY TO FUNCTION OR APPEAR AS BUT ANOTHER ARM OF
THE GOVERNMENT THAT HAS PROCEEDED AGIANST HIM.  /20/  EXCEPT FOR THE
CRIMINAL COURTS OF NEW YORK CITY, EVERY OTHER COURT IN THE NATION
PROCEEDS UNDER JURY TRIAL PROVISIONS THAT REFLECT THIS "FUNDAMENTAL
DECISION ABOUT THE EXERCISE OF OFFICIAL POWER," DUNCAN V. LOUISIANA,
SUPRA, AT 156, WHEN WHAT IS AT STAKE IS THE DEPRIVATION OF INDIVIDUAL
LIBERTY FOR A PERIOD EXCEEDING SIX MONTHS.  THIS NEAR-UNIFORM JUDGMENT
OF THE NATION FURNISHES US WITH THE ONLY OBJECTIVE CRITERION BY WHICH A
LINE COULD EVER BE DRAWN-- ON THE BASIS OF THE POSSIBLE PENALTY ALONE--
BETWEEN OFFENSES THAT ARE AND THAT ARE NOT REGARDED AS "SERIOUS" FOR
PURPOSES OF TRIAL BY JURY.  /21/ 

OF NECESSITY, THE TASK OF DRAWING A LINE "REQUIRES ATTACHING
DIFFERENT CONSEQUENCES TO EVENTS WHICH, WHEN THEY LIE NEAR THE LINE,
ACTUALLY DIFFER VERY LITTLE."  DUNCAN V. LOUISIANA, SUPRA, AT 161.  ONE
WHO IS THREATENED WITH THE POSSIBILITY OF IMPRISONMENT FOR SIX MONTHS
MAY FIND LITTLE DIFFERENCE BETWEEN THE POTENTIAL CONSEQUENCES THAT FACE
HIM, AND THE CONSEQUENCES THAT FACED APPELLANT HERE.  INDEED, THE
PROSPECT OF IMPRISONMENT FOR HOWEVER SHORT A TIME WILL SELDOM BE VIEWED
BY THE ACCUSED AS A TRIVIAL OR "PETTY" MATTER AND MAY WELL RESULT IN
QUITE SERIOUS REPERCUSSIONS AFFECTING HIS CAREER AND HIS REPUTATION. 
WHERE THE ACCUSED CANNOT POSSIBLY FACE MORE THAN SIX MONTHS'
IMPRISONMENT, WE HAVE HELD THAT THESE DISADVANTAGES, ONEROUS THOUGH
THEY MAY BE, MAY BE OUTWEIGHED BY THE BENEFITS THAT RESULT FROM SPEEDY
AND INEXPENSIVE NONJURY ADJUDICATIONS.  WE CANNOT, HOWEVER, CONCLUDE
THAT THESE ADMINISTRATIVE CONVENIENCES, IN LIGHT OF THE PRACTICES THAT
NOW EXIST IN EVERY ONE OF THE 50 STATES AS WELL AS IN THE FEDERAL
COURTS, CAN SIMILARLY JUSTIFY DENYING AN ACCUSED THE IMPORTANT RIGHT TO
TRIAL BY JURY WHERE THE POSSIBLE PENALTY EXCEEDS SIX MONTHS'
IMPRISONMENT.  /22/  THE CONVICTION IS

REVERSED.  MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

(FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 143.) 

(FOR DISSENTING OPINION OF MR. JUSTICE STEWART, SEE POST, PP. 143.) 

/1/  "JOSTLING" IS ONE OF THE WAYS IN WHICH LEGISLATURES HAVE
ATTEMPTED TO DEAL WITH PICKPOCKETING.  SEE DENZER & MCQUILLAN, PRACTICE
COMMENTARY, N.Y. PENAL LAW, FOLLOWING SEC. 165.25; NOTE, PICKPOCKETING:
A SURVEY OF THE CRIME AND ITS CONTROL, 104 U.PA.L.REV.  408, 419
(1955).  THE NEW YORK LAW PROVIDES: 

"A PERSON IS GUILTY OF JOSTLING WHEN, IN A PUBLIC PLACE, HE
INTENTIONALLY AND UNNECESSARILY: 

"1.  PLACES HIS HAND IN THE PROXIMITY OF A PERSON'S POCKET OR
HANDBAG; OR 

"2.  JOSTLES OR CROWDS ANOTHER PERSON AT A TIME WHEN A THIRD
PERSON'S HAND IS IN THE PROXIMITY OF SUCH PERSON'S POCKET OR HANDBAG." 
N.Y. PENAL LAW SEC. 165.25. 

APPELLANT WAS CONVICTED ON THE TESTIMONY OF THE ARRESTING OFFICER. 
THE OFFICER STATED THAT HE HAD OBSERVED APPELLANT, WORKING IN CONCERT
WITH ANOTHER MAN, REMOVE A LOOSE PACKAGE FROM AN UNIDENTIFIED WOMAN'S
POCKETBOOK AFTER THE OTHER MAN HAD MADE A "BODY CONTACT" WITH HER ON A
CROWDED ESCALATOR.  HE ARRESTED BOTH MEN, SEARCHED APPELLANT, AND FOUND
A SINGLE $10 BILL.  NO OTHER TESTIMONY OR EVIDENCE WAS INTRODUCED ON
EITHER SIDE.  THE TRIAL JUDGE THOUGHT THE POLICE OFFICER "A VERY
FORTHRIGHT AND CREDIBLE WITNESS" AND FOUND APPELLANT GUILTY.  HE WAS
SUBSEQUENTLY SENTENCED TO ONE YEAR IN THE PENITENTIARY.  SEE APP. 1-17,
21. 

/2/  "ALL TRIALS IN THE COURT SHALL BE WITHOUT A JURY.  ALL TRIALS
IN THE COURT SHALL BE HELD BEFORE A SINGLE JUDGE; PROVIDED, HOWEVER,
THAT WHERE THE DEFENDANT HAS BEEN CHARGED WITH A MISDEMEANOR . . . (HE)
SHALL BE ADVISED THAT HE HAS THE RIGHT TO A TRIAL IN A PART OF THE
COURT HELD BY A PANEL OF THREE OF THE JUDGES THEREOF . . . "  N.Y.C.
CRIM. CT. ACT SEC. 40 (SUPP. 1969). 

/3/  24 N.Y.2D 207, 247 N.E.2D 260 (1969). 

/4/  395 U.S. 932 (1969). 

/5/  DUNCAN V. LOUISIANA, 391 U.S. 145, 159 (1968); SEE CHEFF V.
SCHNACKENBERG, 384 U.S. 373 (1966); DISTRICT OF COLUMBIA V. CLAWANS,
300 U.S. 617 (1937); DISTRICT OF COLUMBIA V. COLTS, 282 U.S. 63 (1930);
SCHICK V. UNITED STATES, 195 U.S. 65 (1904); NATAL V. LOUISIANA, 139
U.S. 621 (1891); CALLAN V. WILSON, 127 U.S. 540 (1888); FRANKFURTER &
CORCORAN, PETTY FEDERAL OFFENSES AND THE CONSTITUTIONAL GUARANTY OF
TRIAL BY JURY, 39 HARV.L.REV.  917 (1926).  BUT SEE KAYE, PETTY
OFFENDERS HAVE NO PEERS., 26 U.CHI.L.REV.  245 (1959). 

/6/  DECISIONS OF THIS COURT HAVE LOOKED TO BOTH THE NATURE OF THE
OFFENSE ITSELF, DISTRICT OF COLUMBIA V. COLTS, 282 U.S. 63 (1930), AS
WELL AS THE MAXIMUM POTENTIAL SENTENCE, DUNCAN V. LOUISIANA, 391 U.S.
145 (1968), IN DETERMINING WHETHER A PARTICULAR OFFENSE WAS SO SERIOUS
AS TO REQUIRE A JURY TRIAL.  IN THIS CASE, WE DECIDE ONLY THAT A
POTENTIAL SENTENCE IN EXCESS OF SIX MONTHS' IMPRISONMENT IS
SUFFICIENTLY SEVERE BY ITSELF TO TAKE THE OFFENSE OUT OF THE CATEGORY
OF "PETTY."  NONE OF OUR DECISIONS INVOLVING THIS ISSUE HAVE EVER HELD
SUCH AN OFFENSE "PETTY."  SEE CASES CITED N. 5, SUPRA. 

/7/  N.Y. PENAL LAW, SECS. 10.00, 70.15 (1967). 

/8/  BOTH THE CONVICTED FELON AND THE CONVICTED MISDEMEANANT MAY BE
PREVENTED UNDER NEW YORK LAW FROM ENGAGING IN A WIDE VARIETY OF
OCCUPATIONS.  IN ADDITION, THE CONVICTED FELON IS DEPRIVED OF CERTAIN
CIVIL RIGHTS, INCLUDING THE RIGHT TO VOTE AND TO HOLD PUBLIC OFFICE. 
THE RELEVANT STATUTES ARE SET OUT IN BRIEF FOR APPELLANT C-1 TO C-6;
BRIEF FOR APPELLEE A8-A12. 

/9/  SEE STATUTES CITED N. 7, SUPRA; N.Y. PENAL LAW SEC. 70.20
(1967). 

/10/  N.Y. CONST., ART. I, SEC. 6; N.Y. CODE CRIM. PROC. SECS. 22,
222 (1958); N.Y.C. CRIM. CT. ACT SECS. 31, 41 (1963); SEE, E.G., PEOPLE
V. BELLINGER, 269 N.Y. 265, 199 N.E. 213 (1935); PEOPLE V. VAN DUSEN,
56 MISC.2D 107, 287 N.Y.S.2D 741 (1967). 

/11/  EVEN NEW YORK DISTINGUISHES AMONG MISDEMEANORS IN TERMS OF THE
SERIOUSNESS OF THE OFFENSE.  FOLLOWING A RECENT REVISION OF THE PENAL
LAW, CLASS A MISDEMEANORS WERE MADE PUNISHABLE BY UP TO ONE YEAR'S
IMPRISONMENT, CLASS B MISDEMEANORS UP TO THREE MONTHS' IMPRISONMENT,
AND "VIOLATIONS" UP TO 15 DAYS.  AS JUDGE BURKE NOTED IN HIS DISSENTING
OPINION BELOW, "AN ARGUMENT CAN BE MADE WITH SOME FORCE THAT THE
LEGISLATURE HAS IDENTIFIED PETTY OFFENSES AS THOSE INCLUDED IN THE
'VIOLATIONS' CATEGORY AND IN THE CATEGORY OF CLASS B MISDEMEANORS."  24
N.Y.2D 207, 225, 247 N.E.2D 260, 270 (1969). 

/12/  18 U.S.C. 1. 

/13/  FRANKFURTER & CORCORAN, N. 5, SUPRA. 

/14/  DUNCAN V. LOUISIANA, 391 U.S. 145, 161 N. 33 (1968). 

/15/  LA. CRIM. PROC. CODE ANN., ART. 779 (SUPP. 1969); SEE COMMENT,
JURY TRIAL IN LOUISIANA-- IMPLICATIONS OF DUNCAN, 29 LA.L.REV.  118,
127 (1968). 

/16/  N.J. REV. STAT. SEC. 2A:169-4 (SUPP. 1969). 

/17/  COMPARE N.Y.C. CRIM. CT. ACT SEC. 40 (SUPP. 1969), WITH N.Y.
UNIFORM DIST. CT. ACT SEC. 2011 (1963); N.Y. UNIFORM CITY CT. ACT SEC.
2011 (SUPP. 1969).  BECAUSE OF OUR DISPOSITION OF THIS CASE ON
APPELLANT'S JURY-TRIAL CLAIM, WE FIND IT UNNECESSARY TO CONSIDER HIS
ARGUMENT THAT NEW YORK HAS VIOLATED THE EQUAL PROTECTION CLAUSE BY
DENYING HIM A JURY TRIAL, WHILE GRANTING A SIX-MAN-JURY TRIAL TO
DEFENDANTS CHARGED WITH THE IDENTICAL OFFENSE ELSEWHERE IN THE STATE. 
SEE SALSBURG V. MARYLAND, 346 U.S. 545 (1954); MISSOURI V. LEWIS, 101
U.S. 22 (1880).  SEE GENERALLY HOROWITZ & NEITRING, EQUAL PROTECTION
ASPECTS OF INEQUALITIES IN PUBLIC EDUCATION AND PUBLIC ASSISTANCE
PROGRAMS FROM PLACE TO PLACE WITHIN A STATE, 15 U.C.L.A.L.REV.  787-804
(1968).     /18/  THE VARIOUS STATE STATUTORY PROVISIONS ARE SET OUT IN
THE BRIEFS FILED IN THIS CASE.  A SURVEY IS ALSO INCLUDED IN AMERICAN
BAR ASSN. PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, ADVISORY COMMITTEE
ON THE CRIMINAL TRIAL, TRIAL BY JURY 20-23 (APPROVED DRAFT 1968)
(RECOMMENDING THAT THE POSSIBILITY OF SIX MONTHS' IMPRISONMENT AND A
FINE OF $500, "SHOULD BE THE UPPER LIMIT UPON THE DEFINITION OF 'PETTY
OFFENSES'"). 

/19/  IN A RELATED DECISION OF THIS DATE WE HOLD THAT TRIAL BY A SIX
MAN JURY SATISFIES THE SIXTH AMENDMENT REQUIREMENT OF JURY TRIAL. 
WILLIAMS V. FLORIDA, POST, P. 78. 

/20/  THUS A TRIAL BEFORE A PANEL OF THREE JUDGES, WHICH APPELLANT
MIGHT HAVE REQUESTED IN LIEU OF TRIAL BEFORE A SINGLE JUDGE, SEE N. 2,
SUPRA, CAN HARDLY SERVE AS A SUBSTITUTE FOR A JURY TRIAL. 

/21/  WE FIND LITTLE RELEVANCE IN THE FACT THAT CONGRESS HAS DEFINED
MISDEMEANORS PUNISHABLE BY IMPRISONMENT UP TO ONE YEAR AS "MINOR
OFFENSES" FOR PURPOSES OF VESTING TRIAL JURISDICTION IN THE UNITED
STATES MAGISTRATES RATHER THAN COMMISSIONERS, 18 U.S.C. 3401(F) (1964
ED., SUPP. IV), OR FOR PURPOSES OF AUTHORIZING EAVESDROPPING UNDER
STATE COURT ORDERS, 18 U.S.C. 2516(2) (1964 ED., SUPP. IV), OR FOR
PURPOSES OF DETERMINING THE ELIGIBILITY FOR JURY SERVICE OF FORMERLY
CONVICTED PERSONS, 28 U.S.C. 1865(B)(5) (1964 ED., SUPP. IV).  SUCH
STATUTES INVOLVE ENTIRELY DIFFERENT CONSIDERATIONS FROM THOSE INVOLVED
IN DECIDING WHEN THE IMPORTANT RIGHT TO JURY TRIAL SHALL ATTACH TO A
CRIMINAL PROCEEDING.  NOTHING IN ANY OF THE ABOVE ACTS SUGGESTS THAT
CONGRESS MEANT TO ALTER ITS LONGSTANDING JUDGMENT THAT
"(NOTWITHSTANDING ANY ACT OF CONGRESS TO THE CONTRARY . . . (ANY
MISDEMEANOR, THE PENALTY FOR WHICH DOES NOT EXCEED IMPRISONMENT FOR A
PERIOD OF SIX MONTHS OR A FINE OF NOT MORE THAN $500, OR BOTH, IS A
PETTY OFFENSE."  18 U.S.C. 1. 

/22/  EXPERIENCE IN OTHER STATES, NOTABLY CALIFORNIA WHERE JURY
TRIALS ARE AVAILABLE FOR ALL CRIMINAL OFFENSES INCLUDING TRAFFIC
VIOLATIONS, CAL. PEN.  CODE SEC. 689 (1956), SUGGESTS THAT THE
ADMINISTRATIVE BURDEN IS LIKELY TO BE SLIGHT, WITH A VERY HIGH WAIVER
RATE OF JURY TRIALS.  SEE H. KALVEN & H. ZEISEL, THE AMERICAN JURY 18
19 AND N. 12 (1966). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING IN
THE JUDGMENT. 

I AGREE THAT THE APPELLANT HERE WAS ENTITLED TO A TRIAL BY JURY IN A
NEW YORK CITY COURT FOR AN OFFENSE PUNISHABLE BY ONE YEAR'S
IMPRISONMENT.  I ALSO AGREE THAT HIS RIGHT TO A TRIAL BY JURY WAS
GOVERNED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.  I DISAGREE,
HOWEVER, WITH THE VIEW THAT A DEFENDANT'S RIGHT TO A JURY TRIAL UNDER
THE SIXTH AMENDMENT IS DETERMINED BY WHETHER THE OFFENSE CHARGED IS A
"PETTY" OR "SERIOUS" ONE.  THE CONSTITUTION GUARANTEES A RIGHT OF TRIAL
BY JURY IN TWO SEPARATE PLACES BUT IN NEITHER DOES IT HINT OF ANY
DIFFERENCE BETWEEN "PETTY" OFFENSES AND "SERIOUS" OFFENSES.  ARTICLE
III, SEC. 2, CL. 3, PROVIDES THAT "(THE TRIAL OF ALL CRIMES, EXCEPT IN
CASES OF IMPEACHMENT, SHALL BE BY JURY," AND AMENDMENT VI PROVIDES THAT
"(IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED . . . "  THUS THE
CONSTITUION ITSELF GUARANTEES A JURY TRIAL "(IN ALL CRIMINAL
PROSECUTIONS" AND FOR "ALL CRIMES."  MANY YEARS AGO THIS COURT, WITHOUT
THE NECESSITY OF AN AMENDMENT PURSUANT TO ARTICLE V, DECIDED THAT "ALL
CRIMES" DID NOT MEAN "ALL CRIMES," BUT MEANT ONLY "ALL SERIOUS
CRIMES."  /1/  TODAY THREE MEMBERS OF THE COURT WOULD JUDICIALLY AMEND
THAT JUDICIAL AMENDMENT AND SUBSTITUTE THE PHRASE "ALL CRIMES IN WHICH
PUNISHMENT FOR MORE THAN SIX MONTHS IS AUTHORIZED."  THIS DEFINITION OF
"SERIOUS" WOULD BE ENACTED EVEN THOUGH THOSE MEMBERS THEMSELVES
RECOGNIZE THAT IMPRISONMENT FOR LESS THAN SIX MONTHS MAY STILL HAVE
SERIOUS CONSEQUENCES.  THIS DECISION IS REACHED BY WEIGHING THE
ADVANTAGES TO THE DEFENDANT AGAINST THE ADMINISTRATIVE INCONVENIENCE TO
THE STATE INHERENT IN A JURY TRIAL AND MAGICALLY CONCLUDING THAT THE
SCALE TIPS AT SIX MONTHS' IMPRISONMENT.  SUCH CONSTITUTIONAL
ADJUDICATION, WHETHER FRAMED IN TERMS OF "FUNDAMENTAL FAIRNESS,"
"BALANCING," OR "SHOCKING THE CONSCIENCE," AMOUNTS IN EVERY CASE TO
LITTLE MORE THAN JUDICIAL MUTILIATION OF OUR WRITTEN CONSTITUTION. 
THOSE WHO WROTE AND ADOPTED OUR CONSTITUTION AND BILL OF RIGHTS ENGAGED
IN ALL THE BALANCING NECESSARY.  THEY DECIDED THAT THE VALUE OF A JURY
TRIAL FAR OUTWEIGHED ITS COSTS FOR "ALL CRIMES" AND "(IN ALL CRIMINAL
PROSECUTIONS."  UNTIL THAT LANGUAGE IS CHANGED BY THE CONSTITUTIONALLY
PRESCRIBED METHOD OF AMENDMENT, I CANNOT AGREE THAT THIS COURT CAN
REASSESS THE BALANCE AND SUBSTITUTE ITS OWN JUDGMENT FOR THAT EMBODIED
IN THE CONSTITUTION.  SINCE THERE CAN BE NO DOUBT IN THIS CASE THAT
BALDWIN WAS CHARGED WITH AND CONVICTED OF A "CRIME" IN ANY RELEVANT
SENSE OF THAT WORD-- I AGREE THAT HIS CONVICTION MUST BE REVERSED
BECAUSE HE WAS CONVICTED WITHOUT THE BENEFIT OF A JURY TRIAL.  /2/ 

/1/  SEE CALLAN V. WILSON, 127 U.S. 540 (1888); DISTRICT OF COLUMBIA
V. COLTS, 282 U.S. 63 (1930); DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S.
617 (1937); CF. SCHICK V. UNITED STATES, 195 U.S. 65 (1904). 

/2/  MY VIEW DOES NOT REQUIRE A CONCLUSION THAT EVERY ACT WHICH MAY
LEAD TO "MINUSCULE" SANCTIONS BY THE GOVERNMENT IS A "CRIME" WHICH CAN
ONLY BE PUNISHED AFTER A JURY TRIAL.  SEE FRANK V. UNITED STATES, 395
U.S. 147, 150-160 (1969) (DISSENTING OPINION).  THERE MAY BE INSTANCES
IN WHICH CERTAIN CONDUCT IS PUNISHED BY FINES OR OTHER SANCTIONS IN
CIRCUMSTANCES THAT WOULD NOT MAKE THAT CONDUCT CRIMINAL.  NOT ALL
OFFICIAL SANCTIONS ARE IMPOSED IN CRIMINAL PROCEEDINGS, BUT WHEN, AS IN
THIS CASE, THE SANCTION BEARS ALL THE INDICIA OF A CRIMINAL PUNISHMENT,
A JURY TRIAL CANNOT BE DENIED BY LABELING THE PUNISHMENT "PETTY." 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

I DISSENT FROM TODAY'S HOLDING THAT SOMETHING IN THE SIXTH AND
FOURTEENTH AMENDMENTS COMMANDS NEW YORK CITY TO PROVIDE TRIAL BY JURY
FOR AN OFFENSE PUNISHABLE BY A CONFINEMENT OF MORE THAN SIX MONTHS BUT
LESS THAN ONE YEAR.  MR. JUSTICE BLACK HAS NOTED CORRECTLY THAT THE
CONSTITUTION GUARANTEES A JURY TRIAL "(IN ALL CRIMINAL PROSECUTIONS"
(AMENDMENT VI) AND FOR "ALL 'CRIMES" (ART. III, SEC. 2, CL. 3), BUT
THESE PROVISIONS WERE NOT WRITTEN AS A COMMAND TO THE STATES; THEY WERE
WRITTEN AT A TIME WHEN THE FEDERAL GOVERNMENT EXERCISED ONLY A LIMITED
AUTHORITY TO PROVIDE FOR FEDERAL OFFENSES "VERY GRAVE AND FEW IN
NUMBER."  /1/  THE LIMITED NUMBER OF SERIOUS ACTS THAT WERE MADE
CRIMINAL OFFENSES WERE AGAINST FEDERAL AUTHORITY, AND WERE PROSCRIBED
IN A PERIOD WHEN ADMINISTRATION OF THE CRIMINAL LAW WAS REGARDED AS
LARGELY THE PROVINCE OF THE STATES.  THE FOUNDING FATHERS THEREFORE
CAST THE CONSTITUTIONAL PROVISIONS WE DEAL WITH HERE AS LIMITATIONS ON
FEDERAL POWER, NOT THE POWER OF STATES.  STATE ADMINISTRATION OF
CRIMINAL JUSTICE INCLUDED A WIDE RANGE OF PETTY OFFENSES, AND AS TO
MANY OF THE MINOR CASES, THE STATES OFTEN DID NOT REQUIRE TRIAL BY
JURY.  /2/  THIS STATE OF AFFAIRS HAD NOT CHANGED APPRECIABLE WHEN THE
FOURTEENTH AMENDMENT WAS APPROVED BY CONGRESS IN 1866 AND WAS RATIFIED
BY THE STATES IN 1868.  IN THESE CIRCUMSTANCES, THE JURY TRIAL
GUARANTEES OF THE CONSTITUTION PROPERLY HAVE BEEN READ AS EXTENDING
ONLY TO "SERIOUS" CRIMES.  I FIND, HOWEVER, NOTHING IN THE "SERIOUS"
CRIME COVERAGE OF THE SIXTH OR FOURTEENTH AMENDMENT THAT WOULD REQUIRE
THIS COURT TO INVALIDATE THE PARTICULAR NEW YORK CITY TRIAL SCHEME AT
ISSUE HERE. 

I FIND IT SOMEWHAT DISCONCERTING THAT WITH THE CONSTANT URGING TO
ADJUST OURSELVES TO BEING A "PLURALISTIC SOCIETY"-- AND I ACCEPT THIS
IN ITS BROAD SENSE-- WE FIND CONSTANT PRESSURE TO CONFORM TO SOME
UNIFORM PATTERN ON THE THEORY THAT THE CONSTITUTION COMMANDS IT.  I SEE
NO REASON WHY AN INFINITELY COMPLEX ENTITY SUCH AS NEW YORK CITY SHOULD
BE BARRED FROM DECIDING THAT MISDEMEANANTS CAN BE PUNISHED WITH UP TO
365 DAYS' CONFINEMENT WITHOUT A JURY TRIAL WHILE IN LESS URBAN AREAS
ANOTHER BODY POLITIC WOULD FIX A SIX-MONTH MAXIMUM FOR OFFENSES TRIED
WITHOUT A JURY.  THAT THE "NEAR-UNIFORM JUDGMENT OF THE NATION" IS
OTHERWISE THAN THE JUDGMENT IN SOME OF ITS PARTS AFFORDS NO BASIS FOR
ME TO READ INTO THE CONSTITUTION SOMETHING NOT FOUND THERE.  WHAT MAY
BE A SERIOUS OFFENSE IN ONE SETTING-- E.G., STEALING A HORSE IN CODY,
WYOMING, WHERE A HORSE MAY BE AN INDISPENSABLE PART OF LIVING-- MAY BE
CONSIDERED LESS SERIOUS IN ANOTHER AREA, AND THE PROCEDURES FOR FINDING
GUILT AND FIXING PUNISHMENT IN THE TWO LOCALES MAY RATIONALLY DIFFER
FROM EACH OTHER. 

/1/  SEE FRANKFURTER & CORCORAN, PETTY FEDERAL OFFENSES AND THE
CONSTITUTIONAL GURANTY OF TRIAL BY JURY, 39 HARV.L.REV.  917, 975-976
(1926), WHERE THE AUTHORS OBSERVE:  "UNTIL VERY RECENTLY THE OCCASION
FOR CONSIDERING THE DISPENSABILITY OF TRIAL BY JURY IN THE ENFORCEMENT
OF THE CRIMINAL LAW HAS HARDLY PRESENTED ITSELF TO CONGRESS, EXCEPT AS
TO THE TERRITORIES AND THE DISTRICT OF COLUMBIA, BECAUSE, ON THE WHOLE,
FEDERAL OFFENSES WERE AT ONCE VERY GRAVE AND FEW IN NUMBER."  (FOOTNOTE
OMITTED.) 

/2/  SEE ID., AT 934-965; DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S.
617.  626 (1937). 

WILLIAM E. HELLERSTEIN ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON
THE BRIEF WERE LEON B. POLSKY AND ALICE DANIEL. 

MICAHEL R. JUVILER ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE FRANK S. HOGAN, LEWIS R. FRIEDMAN, AND DAVID OTIS FULLER,
JR. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ,
FIRST ASSITANT ATTORNEY GENERAL, AND MARIA L. MARCUS, ASSISTANT
ATTORNEY GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL OF NEW YORK AS
AMICUS CURIAE URGING AFFIRMANCE. 
..END :





WILLIAMS V. FLORIDA, 399 U.S. 78 


       WILLIAMS V. FLORIDA

        CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA,
THIRD

           DISTRICT

        NO. 927.  ARGUED MARCH 4, 1970-- DECIDED JUNE 22, 1970 


FLORIDA HAS A RULE OF CRIMINAL PROCEDURE REQUIRING A DEFENDANT WHO
INTENDS TO RELY ON AN ALIBI TO DISCLOSE TO THE PROSECUTION THE NAMES OF
HIS ALIBI WITNESSES; THE PROSECUTION MUST IN TURN DISCLOSE TO THE
DEFENSE THE NAMES OF WITNESSES TO REBUT THE ALIBI.  FAILURE TO COMPLY
CAN RESULT IN EXCLUSION OF ALIBI EVIDENCE AT TRIAL (EXCEPT FOR THE
DEFENDANT'S OWN TESTIMONY) OR, IN THE CASE OF THE STATE, EXCLUSION OF
THE REBUTTAL EVIDENCE.  PETITIONER, WHO WAS CHARGED WITH ROBBERY,
COMPLIED WITH THE RULE AFTER FAILING TO BE RELIEVED OF ITS
REQUIREMENTS.  HIS PRETRIAL MOTION TO IMPANEL A 12-MAN JURY, INSTEAD OF
THE SIX-MAN JURY FLORIDA LAW PROVIDES FOR NONCAPITAL CASES, WAS
DENIED.  AT TRIAL THE STATE USED A DEPOSITION OF PETITIONER'S ALIBI
WITNESS TO IMPEACH THE WITNESS.  PETITIONER WAS CONVICTED AND THE
APPELLATE COURT AFFIRMED.  PETITIONER CLAIMS THAT HIS FIFTH AMENDMENT
RIGHTS WERE VIOLATED, ON THE GROUND THAT THE NOTICE-OF-ALIBI RULE
REQUIRED HIM TO FURNISH THE STATE WITH INFORMATION USEFUL IN CONVICTING
HIM, AND THAT HIS SIXTH AMENDMENT RIGHT WAS VIOLATED ON THE GROUND THAT
THE SIX-MAN JURY DEPRIVED HIM OF THE RIGHT TO "TRIAL BY JURY" UNDER THE
SIXTH AMENDMENT.  HELD:

1.  FLORIDA'S NOTICE-OF-ALIBI RULE DOES NOT VIOLATE THE FIFTH
AMENDMENT AS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT.  PP. 80-86. 

(A) THIS DISCOVERY RULE IS DESIGNED TO ENHANCE THE SEARCH FOR TRUTH
IN CRIMINAL TRIALS BY GIVING BOTH THE ACCUSED AND THE STATE OPPORTUNITY
TO INVESTIGATE CERTAIN FACTS CRUCIAL TO THE ISSUE OF GUILT OR INNOCENCE
AND COMPORTS WITH REQUIREMENTS FOR DUE PROCESS AND A FAIR TRIAL.  PP.
81-82. 

(B) THE RULE AT MOST ACCELERATED THE TIMING OF PETITIONER'S
DISCLOSURE OF AN ALIBI DEFENSE AND THUS DID NOT VIOLATE THE PRIVILEGE
AGAINST COMPELLED SELF-INCRIMINATION.  PP. 82-86. 

2.  THE CONSTITUTIONAL GUARANTEE OF A TRIAL BY JURY DOES NOT REQUIRE
THAT JURY MEMBERSHIP BE FIXED AT 12, A HISTORICALLY ACCIDENTAL FIGURE. 
ALTHOUGH ACCEPTED AT COMMON LAW, THE FRAMERS DID NOT EXPLICITLY INTEND
TO FOREVER CODIFY AS A CONSTITUTIONAL REQUIREMENT A FEATURE NOT
ESSENTIAL TO THE SIXTH AMENDMENT'S PURPOSE OF INTERPOSING BETWEEN THE
DEFENDANT AND THE PROSECUTION THE COMMONSENSE JUDGMENT OF HIS PEERS. 
PP. 86-103. 

224 SO.2D 406, AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PRIOR TO HIS TRIAL FOR ROBBERY IN THE STATE OF FLORIDA, PETITIONER
FILED A "MOTION FOR A PROTECTIVE ORDER," SEEKING TO BE EXCUSED FROM THE
REQUIREMENTS OF RULE 1.200 OF THE FLORIDA RULES OF CRIMINAL PROCEDURE. 
THAT RULE REQUIRES A DEFENDANT, ON WRITTEN DEMAND OF THE PROSECUTING
ATTORNEY, TO GIVE NOTICE IN ADVANCE OF TRIAL IF THE DEFENDANT INTENDS
TO CLAIM AN ALIBI, AND TO FURNISH THE PROSECUTING ATTORNEY WITH
INFORMATION AS TO THE PLACE WHERE HE CLAIMS TO HAVE BEEN AND WITH THE
NAMES AND ADDRESSES OF THE ALIBI WITNESSES HE INTENDS TO USE.  /1/  IN
HIS MOTION PETITIONER OPENLY DECLARED HIS INTENT TO CLAIM AN ALIBI, BUT
OBJECTED TO THE FURTHER DISCLOSURE REQUIREMENTS ON THE GROUND THAT THE
RULE "COMPELS THE DEFENDANT IN A CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF" IN VIOLATION OF HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS. 
/2/  THE MOTION WAS DENIED.  PETITIONER ALSO FILED A PRETRIAL MOTION TO
IMPANEL A 12-MAN JURY INSTEAD OF THE SIX-MAN JURY PROVIDED BY FLORIDA
LAW IN ALL BUT CAPITAL CASES.  /3/  THAT MOTION TOO WAS DENIED. 
PETITIONER WAS CONVICTED AS CHARGED AND WAS SENTENCED TO LIFE
IMPRISONMENT.  /4/  THE DISTRICT COURT OF APPEAL AFFIRMED, REJECTING
PETITIONER'S CLAIMS THAT HIS FIFTH AND SIXTH AMENDMENT RIGHTS HAD BEEN
VIOLATED.  WE GRANTED CERTIORARI.  /5/  396 U.S. 955 (1969). 

        I 

FLORIDA'S NOTICE-OF-ALIBI RULE IS IN ESSENCE A REQUIREMENT THAT A
DEFENDANT SUBMIT TO A LIMITED FORM OF PRETRIAL DISCOVERY BY THE STATE
WHENEVER HE INTENDS TO RELY AT TRIAL ON THE DEFENSE OF ALIBI.  IN
EXCHANGE FOR THE DEFENDANT'S DISCLOSURE OF THE WITNESSES HE PROPOSES TO
USE TO ESTABLISH THAT DEFENSE, THE STATE IN TURN IS REQUIRED TO NOTIFY
THE DEFENDANT OF ANY WITNESSES IT PROPOSES TO OFFER IN REBUTTAL TO THAT
DEFENSE.  BOTH SIDES ARE UNDER A CONTINUING DUTY PROMPTLY TO DISCLOSE
THE NAMES AND ADDRESSES OF ADDITIONAL WITNESSES BEARING ON THE ALIBI AS
THEY BECOME AVAILABLE.  THE THREATENED SANCTION FOR FAILURE TO COMPLY
IS THE EXCLUSION AT TRIAL OF THE DEFENDANT'S ALIBI EVIDENCE-- EXCEPT
FOR HIS OWN TESTIMONY-- OR, IN THE CASE OF THE STATE, THE EXCLUSION OF
THE STATE'S EVIDENCE OFFERED IN REBUTTAL OF THE ALIBI.  /6/ 

IN THIS CASE, FOLLOWING THE DENIAL OF HIS MOTION FOR A PROTECTIVE
ORDER, PETITIONER COMPLIED WITH THE ALIBI RULE AND GAVE THE STATE THE
NAME AND ADDRESS OF ONE MARY SCOTTY.  MRS. SCOTTY WAS SUMMONED TO THE
OFFICE OF THE STATE ATTORNEY ON THE MORNING OF THE TRIAL, WHERE SHE
GAVE PRETRIAL TESTIMONY.  AT THE TRIAL ITSELF, MRS. SCOTTY, PETITIONER,
AND PETITIONER'S WIFE ALL TESTIFIED THAT THE THREE OF THEM HAD BEEN IN
MRS. SCOTTY'S APARTMENT DURING THE TIME OF THE ROBBERY.  ON TWO
OCCASIONS DURING CROSS-EXAMINATION OF MRS. SCOTTY, THE PROSECUTING
ATTORNEY CONFRONTED HER WITH HER EARLIER DEPOSITION IN WHICH SHE HAD
GIVEN DATES AND TIMES THAT IN SOME RESPECTS DID NOT CORRESPOND WITH THE
DATES AND TIMES GIVEN AT TRIAL.  MRS. SCOTTY ADHERED TO HER TRIAL
STORY, INSISTING THAT SHE HAD BEEN MISTAKEN IN HER EARLIER TESTIMONY. 
/7/  THE STATE ALSO OFFERED IN REBUTTAL THE TESTIMONY OF ONE OF THE
OFFICERS INVESTIGATING THE ROBBERY WHO CLAIMED THAT MRS. SCOTTY HAD
ASKED HIM FOR DIRECTIONS ON THE AFTERNOON IN QUESTION DURING THE TIME
WHEN SHE CLAIMED TO HAVE BEEN IN HER APARTMENT WITH PETITIONER AND HIS
WIFE.  /8/ 

WE NEED NOT LINGER OVER THE SUGGESTION THAT THE DISCOVERY PERMITTED
THE STATE AGAINST PETITIONER IN THIS CASE DEPRIVED HIM OF "DUE PROCESS"
OR A "FAIR TRIAL."  FLORIDA LAW PROVIDES FOR LIBERAL DISCOVERY BY THE
DEFENDANT AGAINST THE STATE, /9/  AND THE NOTICE-OF-ALIBI RULE IS
ITSELF CAREFULLY HEDGED WITH RECIPROCAL DUTIES REQUIRING STATE
DISCLOSURE TO THE DEFENDANT.  GIVE THE EASE WITH WHICH AN ALIBI CAN BE
FABRICATED, THE STATE'S INTEREST IN PROTECTING ITSELF AGAINST AN
ELEVENTH-HOUR DEFENSE IS BOTH OBVIOUS AND LEGITIMATE.  REFLECTING THIS
INTEREST, NOTICE-OF-ALIBI PROVISIONS, DATING AT LEAST FROM 1927, /10/
ARE NOW IN EXISTENCE IN A SUBSTANTIAL NUMBER OF STATES.  /11/  THE
ADVERSARY SYSTEM OF TRIAL IS HARDLY AN END IN ITSELF; IT IS NOT YET A
POKER GAME IN WHICH PLAYERS ENJOY AN ABSOLUTE RIGHT ALWAYS TO CONCEAL
THEIR CARDS UNTIL PLAYED.  /12/  WE FIND AMPLE ROOM IN THAT SYSTEM, AT
LEAST AS FAR AS "DUE PROCESS" IS CONCERNED, FOR THE INSTANT FLORIDA
RULE, WHICH IS DESIGNED TO ENHANCE THE SEARCH FOR TRUTH IN THE CRIMINAL
TRIAL BY INSURING BOTH THE DEFENDANT AND THE STATE AMPLE OPPORTUNITY TO
INVESTIGATE CERTAIN FACTS CRUCIAL TO THE DETERMINATION OF GUILT OR
INNOCENCE. 

PETITIONER'S MAJOR CONTENTION IS THAT HE WAS "COMPELLED . . . TO BE
A WITNESS AGAINST HIMSELF" CONTRARY TO THE COMMANDS OF THE FIFTH AND
FOURTEENTH AMENDMENTS BECAUSE THE NOTICE-OF-ALIBI RULE REQUIRED HIM TO
GIVE THE STATE THE NAME AND ADDRESS OF MRS. SCOTTY IN ADVANCE OF TRIAL
AND THUS TO FURNISH THE STATE WITH INFORMATION USEFUL IN CONVICTING
HIM.  NO PRETRIAL STATEMENT OF PETITIONER WAS INTRODUCED AT TRIAL; BUT
ARMED WITH MRS. SCOTTY'S NAME AND ADDRESS AND THE KNOWLEDGE THAT SHE
WAS TO BE PETITIONER'S ALIBI WITNESS, THE STATE WAS ABLE TO TAKE HER
DEPOSITION IN ADVANCE OF TRIAL AND TO FIND REBUTTAL TESTIMONY.  ALSO,
REQUIRING HIM TO REVEAL THE ELEMENTS OF HIS DEFENSE IS CLAIMED TO HAVE
INTERFERED WITH HIS RIGHT TO WAIT UNTIL AFTER THE STATE HAD PRESENTED
ITS CASE TO DECIDE HOW TO DEFEND AGAINST IT.  WE CONCLUDE, HOWEVER, AS
HAS APPARENTLY EVERY OTHER COURT THAT HAS CONSIDERED THE ISSUE, /13/
THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT VIOLATED BY A
REQUIREMENT THAT THE DEFENDANT GIVE NOTICE OF AN ALIBI DEFENSE AND
DISCLOSE HIS ALIBI WITNESSES.  /14/ 

THE DEFENDANT IN A CRIMINAL TRIAL IS FREQUENTLY FORCED TO TESTIFY
HIMSELF AND TO CALL OTHER WITNESSES IN AN EFFORT TO REDUCE THE RISK OF
CONVICTION.  WHEN HE PRESENTS HIS WITNESSES, HE MUST REVEAL THEIR
IDENTITY AND SUBMIT THEM TO CROSS-EXAMINATION WHICH IN ITSELF MAY PROVE
INCRIMINATING OR WHICH MAY FURNISH THE STATE WITH LEADS TO
INCRIMINATING REBUTTAL EVIDENCE.  THAT THE DEFENDANT FACES SUCH A
DILEMMA DEMANDING A CHOICE BETWEEN COMPLETE SILENCE AND PRESENTING A
DEFENSE HAS NEVER BEEN THOUGHT AN INVASION OF THE PRIVILEGE AGAINST
COMPELLED SELF-INCRIMINATION.  THE PRESSURES GENERATED BY THE STATE'S
EVIDENCE MAY BE SEVERE BUT THEY DO NOT VITIATE THE DEFENDANT'S CHOICE
TO PRESENT AN ALIBI DEFENSE AND WITNESSES TO PROVE IT, EVEN THOUGH THE
ATTEMPTED DEFENSE ENDS IN CATASTROPHE FOR THE DEFENDANT.  HOWEVER
"TESTIMONIAL" OR "INCRIMINATING" THE ALIBI DEFENSE PROVES TO BE, IT
CANNOT BE CONSIDERED "COMPELLED" WITHIN THE MEANING OF THE FIFTH AND
FOURTEENTH AMENDMENTS. 

VERY SIMILAR CONSTRAINTS OPERATE ON THE DEFENDANT WHEN THE STATE
REQUIRES PRETRIAL NOTICE OF ALIBI AND THE NAMING OF ALIBI WITNESSES. 
NOTHING IN SUCH A RULE REQUIRES THE DEFENDANT TO RELY ON AN ALIBI OR
PREVENTS HIM FROM ABANDONING THE DEFENSE; THESE MATTERS ARE LEFT TO HIS
UNFETTERED CHOICE.  /15/  THAT CHOICE MUST BE MADE, BUT THE PRESSURES
THAT BEAR ON HIS PRETRIAL DECISION ARE OF THE SAME NATURE AS THOSE THAT
WOULD INDUCE HIM TO CALL ALIBI WITNESSES AT THE TRIAL:  THE FORCE OF
HISTORICAL FACT BEYOND BOTH HIS AND THE STATE'S CONTROL AND THE
STRENGTH OF THE STATE'S CASE BUILT ON THESE FACTS.  RESPONSE TO THAT
KIND OF PRESSURE BY OFFERING EVIDENCE OR TESTIMONY IS NOT COMPELLED
SELF-INCRIMINATION TRANSGRESSING THE FIFTH AND FOURTEENTH AMENDMENTS. 

IN THE CASE BEFORE US, THE NOTICE-OF-ALIBI RULE BY ITSELF IN NO WAY
AFFECTED PETITIONER'S CRUCIAL DECISION TO CALL ALIBI WITNESSES OR ADDED
TO THE LEGITIMATE PRESSURES LEADING TO THAT COURSE OF ACTION.  AT MOST,
THE RULE ONLY COMPELLED PETITIONERS TO ACCELERATE THE TIMING OF HIS
DISCLOSURE, FORCING HIM TO DIVULGE AT AN EARLIER DATE INFORMATION THAT
THE PETITIONER FROM THE BEGINNING PLANNED TO DIVULGE AT TRIAL.  NOTHING
IN THE FIFTH AMENDMENT PRIVILEGE ENTITLES A DEFENDANT AS A MATTER OF
CONSTITUIONAL RIGHT TO AWAIT THE END OF THE STATE'S CASE BEFORE
ANNOUNCING THE NATURE OF HIS DEFENSE, ANY MORE THAN IT ENTITLES HIM TO
AWAIT THE JURY'S VERDICT ON THE STATE'S CASE-IN-CHIEF BEFORE DECIDING
WHETHER OR NOT TO TAKE THE STAND HIMSELF. 

PETITIONER CONCEDES THAT ABSENT THE NOTICE-OF-ALIBI RULE THE
CONSTITUTION WOULD RAISE NO BAR TO THE COURT'S GRANTING THE STATE A
CONTINUANCE AT TRIAL ON THE GROUND OF SURPRISE AS SOON AS THE ALIBI
WITNESS IS CALLED.  /16/  NOR WOULD THERE BE SELF-INCRIMINATION
PROBLEMS IF, DURING THAT CONTINUANCE, THE STATE WAS PERMITTED TO DO
PRECISELY WHAT IT DID HERE PRIOR TO TRIAL:  TAKE THE DEPOSITION OF THE
WITNESS AND FIND REBUTTAL EVIDENCE.  BUT IF SO UTILIZING A CONTINUANCE
IS PERMISSIBLE UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, THEN SURELY
THE SAME RESULT MAY BE ACCOMPLISHED THROUGH PRETRIAL DISCOVERY, AS IT
WAS HERE, AVOIDING THE NECESSITY OF A DISRUPTED TRIAL.  /17/  WE
DECLINE TO HOLD THAT THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION GUARANTEES THE DEFENDANT THE RIGHT TO SUPRISE THE STATE
WITH AN ALIBI DEFENSE. 

II 

IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), WE HELD THAT THE
FOURTEENTH AMENDMENT GUARANTEES A RIGHT TO TRIAL BY JURY IN ALL
CRIMINAL CASES THAT-- WERE THEY TO BE TRIED IN A FEDERAL COURT-- WOULD
COME WITHIN THE SIXTH AMENDMENT'S GUARANTEE.  PETITIONER'S TRIAL FOR
ROBBERY ON JULY 3, 1968, CLEARLY FALLS WITHIN THE SCOPE OF THAT
HOLDING.  SEE BALDWIN V. NEW YORK, ANTE, P. 66; DESTEFANO V. WOODS, 392
U.S. 631 (1968).  THE QUESTION IN THIS CASE THEN IS WHETHER THE
CONSTITUTIONAL GUARANTEE OF A TRIAL BY "JURY" NECESSARILY REQUIRES
TRIAL BY EXACTLY 12 PERSONS, RATHER THAN SOME LESSER NUMBER-- IN THIS
CASE SIX.  WE HOLD THAT THE 12-MAN PANEL IS NOT A NECESSARY INGREDIENT
OF "TRIAL BY JURY," AND THAT RESPONDENT'S REFUSAL TO IMPANEL MORE THAN
THE SIX MEMBERS PROVIDED FOR BY FLORIDA LAW DID NOT VIOLATE
PETITIONER'S SIXTH AMENDMENT RIGHTS AS APPLIED TO THE STATES THROUGH
THE FOURTEENTH. 

WE HAD OCCASION IN DUNCAN V. LOUISIANA, SUPRA, TO REVIEW BRIEFLY THE
OFT-TOLD HISTORY OF THE DEVELOPMENT OF TRIAL BY JURY IN CRIMINAL
CASES.  /18/  THAT HISTORY REVEALED A LONG TRADITION ATTACHING GREAT
IMPORTANCE TO THE CONCEPT OF RELYING ON A BODY OF ONE'S PEERS TO
DETERMINE GUILT OR INNOCENCE AS A SAFEGUARD AGAINST ARBITRARY LAW
ENFORCEMENT.  THAT SAME HISTORY, HOWEVER, AFFORDS LITTLE INSIGHT INTO
THE CONSIDERATION THAT GRADUALLY LED THE SIZE OF THAT BODY TO BE
GENERALLY FIXED AT 12.  /19/  SOME HAVE SUGGESTED THAT THE NUMBER 12
WAS FIXED UPON SIMPLY BECAUSE THAT WAS THE NUMBER OF THE PRESENTMENT
JURY FROM THE HUNDRED, FROM WHICH THE PETIT JURY DEVELOPED.  /20/
OTHER, LESS CIRCULAR BUT MORE FANCIFUL REASONS FOR THE NUMBER 12 HAVE
BEEN GIVEN, "BUT THEY WERE ALL BROUGHT FORWARD AFTER THE NUMBER WAS
FIXED,"  /21/  AND REST ON LITTLE MORE THAN MYSTICAL OR SUPERSTITIOUS
INSIGHTS INTO THE SIGNIFICANCE OF "12."  LORD COKE'S EXPLANATION THAT
THE "NUMBER OF TWELVE IS MUCH RESPECTED IN HOLY WRIT, AS 12 APOSTLES,
12 STONES, 12 TRIBES, ETC.,"  /22/  IS TYPICAL.  /23/  IN SHORT, WHILE
SOMETIME IN THE 14TH CENTURY THE SIZE OF THE JURY AT COMMON LAW CAME TO
BE FIXED GENERALLY AT 12, /24/  THAT PARTICULAR FEATURE OF THE JURY
SYSTEM APPEARS TO HAVE BEEN A HISTORICAL ACCIDENT, UNRELATED TO THE
GREAT PURPOSES WHICH GAVE RISE TO THE JURY IN THE FIRST PLACE.  /25/
THE QUESTION BEFORE US IS WHETHER THIS ACCIDENTAL FEATURE OF THE JURY
HAS BEEN IMMUTABLY CODIFIED INTO OUR CONSTITUTION. 

THIS COURT'S EARLIER DECISIONS HAVE ASSUMED AN AFFIRMATIVE ANSWER TO
THIS QUESTION.  THE LEADING CASE SO CONSTRUING THE SIXTH AMENDMENT IS
THOMPSON V. UTAH, 170 U.S. 343 (1898).  THERE THE DEFENDANT HAD BEEN
TRIED AND CONVICTED BY A 12-MAN JURY FOR A CRIME COMMITTED IN THE
TERRITORY OF UTAH.  A NEW TRIAL WAS GRANTED, BUT BY THAT TIME UTAH HAD
BEEN ADMITTED AS A STATE.  THE DEFENDANT'S NEW TRIAL PROCEEDED UNDER
UTAH'S CONSTITUTION, PROVIDING FOR A JURY OF ONLY EIGHT MEMBERS.  THIS
COURT REVERSED THE RESULTING CONVICTION, HOLDING THAT UTAH'S
CONSTITUTIONAL PROVISION WAS AN EX POST FACTO LAW AS APPLIED TO THE
DEFENDANT.  IN REACHING ITS CONCLUSION, THE COURT ANNOUNCED THAT THE
SIXTH AMENDMENT WAS APPLICABLE TO THE DEFENDANT'S TRIAL WHEN UTAH WAS A
TERRITORY, AND THAT THE JURY REFERRED TO IN THE AMENDMENT WAS A JURY
"CONSTITUTIED, AS IT WAS AT COMMON LAW, OF TWELVE PERSONS, NEITHER MORE
NOR LESS."  170 U.S.,AT 349.  ARGUABLY UNNECESSARY FOR THE RESULT, /26/
THIS ANNOUNCEMENT WAS SUPPORTED SIMPLY BY REFERRING TO THE MAGNA
CARTA, /27/  AND BY QUOTING PASSAGES FROM TREATISES WHICH NOTED-- WHAT
HAS ALREADY BEEN SEEN-- THAT AT COMMON LAW THE JURY DID INDEED CONSIST
OF 12.  NOTICEABLY ABSENT WAS ANY DISCUSSION OF THE ESSENTIAL STEP IN
THE ARGUMENT:  NAMELY, THAT EVERY FEATURE OF THE JURY AS IT EXISTED AT
COMMON LAW-- WHETHER INCIDENTAL OR ESSENTIAL TO THAT INSTITUTION-- WAS
NECESSARILY INCLUDED IN THE CONSTITUTION WHEREVER THAT DOCUMENT
REFERRED TO A "JURY."  /28/  SUBSEQUENT DECISIONS HAVE REAFFIRMED THE
ANNOUNCEMENT IN THOMPSON, OFTEN IN DICTUM /29/  AND USUALLY BE RELYING-
WHERE THERE WAS ANY DISCUSSION OF THE ISSUE AT ALL-- SOLELY ON THE
FACT THAT THE COMMONLAW JURY CONSISTED OF 12.  /30/  SEE PATTON V.
UNITED STATES, 281 U.S. 276, 288 (1930); /31/  RASSMUSSEN V. UNITED
STATES, 197 U.S. 516, 519 (1905); MAXWELL V. DOW, 176 U.S. 581, 586
(1900).     WHILE "THE INTENT OF THE FRAMERS" IS OFTEN AN ELUSIVE
QUARRY, THE RELEVANT CONSTITUTIONAL HISTORY CASTS CONSIDERABLE DOUBT ON
THE EASY ASSUMPTION IN OUR PAST DECISIONS THAT IF A GIVEN FEATURE
EXISTED IN A JURY AT COMMON LAW IN 1789, THEN IT WAS NECESSARILY
PRESERVED IN THE CONSTITUTION.  PROVISIONS FOR JURY TRIAL WERE FIRST
PLACED IN THE CONSTITUTION IN ARTICLE III'S PROVISION THAT "(THE TRIAL
OF ALL CRIMES . . . SHALL BE BY JURY; AND SUCH TRIAL SHALL BE HELD IN
THE STATE WHERE THE SAID CRIMES SHALL HAVE BEEN COMMITTED."  /32/  THE
'VERY SCANTY HISTORY (OF THIS PROVISION) IN THE RECORDS OF THE
CONSTITUTIONAL CONVENTION"  /33/  SHEDS LITTLE LIGHT EITHER WAY ON THE
INTENDED CORRELATION BETWEEN ARTICLE III'S "JURY" AND THE FEATURES OF
THE JURY AT COMMON LAW.  /34/  INDEED, PENDING AND AFTER THE ADOPTION
OF THE CONSTITUTION, FEARS WERE EXPRESSED THAT ARTICLE III'S PROVISION
FAILED TO PRESERVE THE COMMON-LAW RIGHT TO BE TRIED BY A "JURY OF THE
VICINAGE."  /35/  THAT CONCERN, AS WELL AS THE CONCERN TO PRESERVE THE
RIGHT TO JURY IN CIVIL AS WELL AS CRIMINAL CASES, FURNISHED PART OF THE
IMPETUS FOR INTRODUCING AMENDMENTS TO THE CONSTITUTION THAT ULTIMATELY
RESULTED IN THE JURY TRIAL PROVISIONS OF THE SIXTH AND SEVENTH
AMENDMENTS.  AS INTRODUCED BY JAMES MADISON IN THE HOUSE, THE AMENDMENT
RELATING TO JURY TRIAL IN CRIMINAL CASES WOULD HAVE PROVIDED THAT: 

     "THE TRIAL OF ALL CRIMES . . . SHALL BE BY AN IMPARTIAL JURY
OF

  FREEHOLDERS OF THE VICINAGE, WITH THE REQUISITE OF UNANIMITY FOR

  CONVICTION, OF THE RIGHT OF CHALLENGE, AND OTHER ACCUSTOMED

  REQUISITES . . . "  /36/

THE AMENDMENT PASSED THE HOUSE IN SUBSTANTIALLY THIS FORM, BUT AFTER
MORE THAN A WEEK OF DEBATE IN THE SENATE IT RETURNED TO THE HOUSE
CONSIDERABLY ALTERED.  /37/  WHILE RECORDS OF THE ACTUAL DEBATES THAT
OCCURRED IN THE SENATE ARE NOT AVAILABLE, /38/  A LETTER FROM MADISON
TO EDMUND PENDLETON ON SEPTEMBER 14, 1789, INDICATES THAT ONE OF THE
SENATE'S MAJOR OBJECTIONS WAS TO THE "VICINAGE" REQUIREMENT IN THE
HOUSE VERSION.  /39/  A CONFERENCE COMMITTEE WAS APPOINTED.  AS
REPORTED IN A SECOND LETTER BY MADISON ON SEPTEMBER 23, 1789, THE
SENATE REMAINED OPPOSED TO THE VICINAGE REQUIREMENT, PARTLY BECAUSE IN
ITS VIEW THE THEN-PENDING JUDICIARY BILL-- WHICH WAS DEBATED AT THE
SAME TIME AS THE AMENDMENTS-- ADEQUATELY PRESERVED THE COMMON-LAW
VICINAGE FEATURE, MAKING IT UNNECESSARY TO FREEZE THAT REQUIREMENT INTO
THE CONSTITUTION.  "THE SENATE," WROTE MADISON: 

"ARE . . . INFLEXIBLE IN OPPOSING A DEFINITION OF THE LOCALITY OF
JURIES.  THE VICINAGE THEY CONTEND IS EITHER TOO VAGUE OR TOO STRICT A
TERM; TOO VAGUE IF DEPENDING ON LIMITS TO BE FIXED BY THE PLEASURE OF
THE LAW, TOO STRICT IF LIMITED TO THE COUNTY.  IT WAS PROPOSED TO
INSERT AFTER THE WORD JURIES, 'WITH THE ACCUSTOMED REQUISITES,' LEAVING
THE DEFINITION TO BE CONSTRUED ACCORDING TO THE JUDGMENT OF
PROFESSIONAL MEN.  EVEN THIS COULD NOT BE OBTAINED . . . THE SENATE
SUPPOSE, ALSO, THAT THE PROVISION FOR VICINAGE IN THE JUDICIARY BILL
WILL SUFFICIENTLY QUIET THE FEARS WHICH CALLED FOR AN AMENDMENT ON THIS
POINT."  /40/ THE VERSION THAT FINALLY EMERGED FROM THE COMMITTEE WAS
THE VERSION THAT ULTIMATELY BECAME THE SIXTH AMENDMENT, ENSURING AN
ACCUSED: 

"THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE
STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH
DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW . . . " GONE
WERE THE PROVISIONS SPELLING OUT SUCH COMMON-LAW FEATURES OF THE JURY
AS "UNANIMITY," OR "THE ACCUSTOMED REQUISITES."  AND THE "VICINAGE"
REQUIREMENT ITSELF HAD BEEN REPLACED BY WORDING THAT REFLECTED A
COMPROMISE BETWEEN BROAD AND NARROW DEFINITIONS OF THAT TERM, AND THAT
LEFT CONGRESS THE POWER TO DETERMINE THE ACTUAL SIZE OF THE "VICINAGE"
BY ITS CREATION OF JUDICIAL DISTRICTS.  /41/ 

THREE SIGNIFICANT FEATURES MAY BE OBSERVED IN THIS SKETCH OF THE
BACKGROUND OF THE CONSTITUTION'S JURY TRIAL PROVISIONS.  FIRST, EVEN
THOUGH THE VICINAGE REQUIREMENT WAS AS MUCH A FEATURE OF THE COMMON-LAW
JURY AS WAS THE 12-MAN REQUIREMENT, /42/  THE MERE REFERENCE TO "TRIAL
BY JURY" IN ARTICLE III WAS NOT INTERPRETED TO INCLUDE THAT FEATURE. 
INDEED, AS THE SUBSEQUENT DEBATES OVER THE AMENDMENTS INDICATE,
DISAGREEMENT AROSE OVER WHETHER THE FEATURE SHOULD BE INCLUDED AT ALL
IN ITS COMMON-LAW SENSE, RESULTING IN THE COMPROMISE DESCRIBED ABOVE. 
SECOND, PROVISIONS THAT WOULD HAVE EXPLICITLY TIED THE "JURY" CONCEPT
TO THE "ACCUSTOMED REQUISITES" OF THE TIME WERE ELIMINATED.  SUCH
ACTION IS CONCEDEDLY OPEN TO THE EXPLANATION THAT THE "ACCUSTOMED
REQUISITES" WERE THOUGHT TO BE ALREADY INCLUDED IN THE CONCEPT OF A
"JURY."  BUT THAT EXPLANATION IS NO MORE PLAUSIBLE THAN THE CONTRARY
ONE:  THAT THE DELETION HAD SOME SUBSTANTIVE EFFECT.  INDEED, GIVEN THE
CLEAR EXPECTATION THAT A SUBSTANTIVE CHANGE WOULD BE EFFECTED BY THE
INCLUSION OR DELETION OF AN EXPLICIT "VICINAGE" REQUIREMENT, THE LATTER
EXPLANATION IS, IF ANYTHING, THE MORE PLAUSIBLE.  FINALLY, CONTEMPORARY
LEGISLATIVE AND CONSTITUTIONAL PROVISIONS INDICATE THAT WHERE CONGRESS
WANTED TO LEAVE NO DOUBT THAT IT WAS INCORPORATING EXISTING COMMON-LAW
FEATURES OF THE JURY SYSTEM, IT KNEW HOW TO USE EXPRESS LANGUAGE TO
THAT EFFECT.  THUS, THE JUDICIARY BILL, SIGNED BY THE PRESIDENT ON THE
SAME DAY THAT THE HOUSE AND SENATE FINALLY AGREED ON THE FORM OF THE
AMENDMENTS TO BE SUBMITTED TO THE STATES, PROVIDED IN CERTAIN CASES FOR
THE NARROWER "VICINAGE" REQUIREMENTS THAT THE HOUSE HAD WANTED TO
INCLUDE IN THE AMENDMENTS.  /43/  AND THE SEVENTH AMENDMENT, PROVIDING
FOR JURY TRIAL IN CIVIL CASES, EXPLICITLY ADDED THAT "NO FACE TRIED BY
A JURY, SHALL BE OTHERWISE RE-EXAMINED IN ANY COURT OF THE UNITED
STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW."  /44/ 

WE DO NOT PRETEND TO BE ABLE TO DIVINE PRECISELY WHAT THE WORD "JURY"
IMPORTED TO THE FRAMERS, THE FIRST CONGRESS, OR THE STATES IN 1789.  IT
MAY WELL BE THAT THE USUAL EXPECTATION WAS THAT THE JURY WOULD CONSIST
OF 12, /45/  AND THAT HENCE, THE MOST LIKELY CONCLUSION TO BE DRAWN IS
SIMPLY THAT LITTLE THOUGHT WAS ACTUALLY GIVEN TO THE SPECIFIC QUESTION
WE FACE TODAY.  BUT THERE IS ABSOLUTELY NO INDICATION IN "THE INTENT OF
THE 'FRAMERS" OF AN EXPLICIT DECISION TO EQUATE THE CONSTITUTIONAL AND
COMMON-LAW CHARACTERISTICS OF THE JURY.  NOTHING IN THIS HISTORY
SUGGESTS, THEN, THAT WE DO VIOLENCE TO THE LETTER OF THE CONSTITUTION
BY TURNING TO OTHER THAN PURELY HISTORICAL CONSIDERATIONS TO DETERMINE
WHICH FEATURES OF THE JURY SYSTEM, AS IT EXISTED AT COMMON LAW, WERE
PRESERVED IN THE CONSTITUTION.  THE RELEVANT INQUIRY, AS WE SEE IT,
MUST BE THE FUNCTION THAT THE PARTICULAR FEATURE PERFORMS AND ITS
RELATION TO THE PURPOSES OF THE JURY TRIAL.  MEASURED BY THIS STANDARD,
THE 12-MAN REQUIREMENT CANNOT BE REGARDED AS AN INDISPENSABLE COMPONENT
OF THE SIXTH AMENDMENT. 

THE PURPOSE OF THE JURY TRIAL, AS WE NOTED IN DUNCAN, IS TO PREVENT
OPPRESSION BY THE GOVERNMENT.  "PROVIDING AN ACCUSED WITH THE RIGHT TO
BE TRIED BY A JURY OF HIS PEERS GAVE HIM AN INESTIMABLE SAFEGUARD
AGAINST THE CORRUPT OR OVERZEALOUS PROSECUTOR AND AGAINST THE
COMPLIANT, BIASED, OR ECCENTRIC JUDGE."  DUNCAN V. LOUISIANA, SUPRA, AT
156.  GIVEN THIS PURPOSE, THE ESSENTIAL FEATURE OF A JURY OBVIOUSLY
LIES IN THE INTERPOSITION BETWEEN THE ACCUSED AND HIS ACCUSER OF THE
COMMONSENSE JUDGMENT OF A GROUP OF LAYMEN, AND IN THE COMMUNITY
PARTICIPATION AND SHARED RESPONSIBILITY THAT RESULTS FROM THAT GROUP'S
DETERMINATION OF GUILT OR INNOCENCE.  THE PERFORMANCE OF THIS ROLE IS
NOT A FUNCTION OF THE PARTICULAR NUMBER OF THE BODY THAT MAKES UP THE
JURY.  TO BE SURE, THE NUMBER SHOULD PROBABLY BE LARGE ENOUGH TO
PROMOTE GROUP DELIBERATION, FREE FROM OUTSIDE ATTEMPTS AT INTIMIDATION,
AND TO PROVIDE A FAIR POSSIBILITY FOR OBTAINING A REPRESENTATIVE CROSS
THESE GOALS ARE IN ANY MEANINGFUL SENSE LESS LIKELY TO BE ACHIEVED WHEN
THE JURY NUMBERS SIX, THAN WHEN IT NUMBERS 12-- PARTICULARLY IF THE
REQUIREMENT OF UNANIMITY IS RETAINED.  /46/  AND, CERTAINLY THE
RELIABILITY OF THE JURY AS A FACTFINDER HARDLY SEEMS LIKELY TO BE A
FUNCTION OF ITS SIZE. 

IT MIGHT BE SUGGESTED THAT THE 12-MAN JURY GIVES A DEFENDANT A
GREATER ADVANTAGE SINCE HE HAS MORE "CHANCES" OF FINDING A JUROR WHO
WILL INSIST ON ACQUITTAL AND THUS PREVENT CONVICTION.  BUT THE
ADVANTAGE MIGHT JUST AS EASILY BELONG TO THE STATE, WHICH ALSO NEEDS
ONLY ONE JUROR OUT OF TWELVE INSISTING ON GUILT TO PREVENT ACQUITTAL. 
/47/  WHAT FEW EXPERIMENTS HAVE OCCURRED-- USUALLY IN THE CIVIL AREA--
INDICATE THAT THERE IS NO DISCERNIBLE DIFFERENCE BETWEEN THE RESULTS
REACHED BY THE TWO DIFFERENT-SIZED JURIES.  /48/  IN SHORT, NEITHER
CURRENTLY AVAILABLE EVIDENCE NOR THEORY /49/  SUGGESTS THAT THE 12-MAN
JURY IS NECESSARILY MORE ADVANTAGEOUS TO THE DEFENDANT THAN A JURY
COMPOSED OF FEWER MEMBERS. 

SIMILARLY, WHILE IN THEORY THE NUMBER OF VIEWPOINTS REPRESENTED ON A
RANDOMLY SELECTED JURY OUGHT TO INCREASE AS THE SIZE OF THE JURY
INCREASES, IN PRACTICE THE DIFFERENCE BETWEEN THE 12-MAN AND THE SIX
MAN JURY IN TERMS OF THE CROSS-SECTION OF THE COMMUNITY REPRESENTED
SEEMS LIKELY TO BE NEGLIGIBLE.  EVEN THE 12-MAN JURY CANNOT INSURE
REPRESENTATION OF EVERY DISTINCT VOICE IN THE COMMUNITY, PARTICULARLY
GIVEN THE USE OF THE PEREMPTORY CHALLENGE.  AS LONG AS ARBITRARY
EXCLUSIONS OF A PARTICULAR CLASS FROM THE JURY ROLLS ARE FORBIDDEN, SEE
E.G., CARTER V. JURY COMMISSION, 396 U.S. 320, 329-330 (1970), THE
CONCERN THAT THE CROSS-SECTION WILL BE SIGNIFICANTLY DIMINISHED IF THE
JURY IS DECREASED IN SIZE FROM 12 TO SIX SEEMS AN UNREALISTIC ONE. 

WE CONCLUDE, IN SHORT, AS WE BEGAN:  THE FACT THAT THE JURY AT
COMMON LAW WAS COMPOSED OF PRECISELY 12 IS A HISTORICAL ACCIDENT,
UNNECESSARY TO EFFECT THE PURPOSES OF THE JURY SYSTEM AND WHOLLY
WITHOUT SIGNIFICANCE "EXCEPT TO MYSTICS."  DUNCAN V. LOUISIANA, SUPRA,
AT 182 (HARLAN, J., DISSENTING).  TO READ THE SIXTH AMENDMENT AS
FOREVER CODIFYING A FEATURE SO INCIDENTAL TO THE REAL PURPOSE OF THE
AMENDMENT IS TO ASCRIBE A BLIND FORMALISM TO THE FRAMERS WHICH WOULD
REQUIRE CONSIDERABLY MORE EVIDENCE THAN WE HAVE BEEN ABLE TO DISCOVER
IN THE HISTORY AND LANGUAGE OF THE CONSTITUTION OR IN THE REASONING OF
OUR PAST DECISIONS.  WE DO NOT MEAN TO INTIMATE THAT LEGISLATURES CAN
NEVER HAVE GOOD REASONS FOR CONCLUDING THAT THE 12-MAN JURY IS
PREFERABLE TO THE SMALLER JURY, OR THAT SUCH CONCLUSIONS-- REFLECTED IN
THE PROVISIONS OF MOST STATES AND IN OUR FEDERAL SYSTEM /50/  -- ARE IN
ANY SENSE UNWISE.  LEGISLATURES MAY WELL HAVE THEIR OWN VIEWS ABOUT THE
RELATIVE VALUE OF THE LARGER AND SMALLER JURIES, AND MAY CONCLUDE THAT,
WHOLLY APART FROM THE JURY'S PRIMARY FUNCTION, IT IS DESIRABLE TO
SPREAD THE COLLECTIVE RESPONSIBILITY FOR THE DETERMINATION OF GUILT
AMONG THE LARGER GROUP.  IN CAPITAL CASES, FOR EXAMPLE, IT APPEARS THAT
NO STATE PROVIDES FOR LESS THAN 12 JURORS-- A FACT THAT SUGGESTS
IMPLICIT RECOGNITION OF THE VALUE OF THE LARGER BODY AS A MEANS OF
LEGITIMATING SOCIETY'S DECISION TO IMPOSE THE DEATH PENALTY.  OUR
HOLDING DOES NO MORE THAN LEAVE THESE CONSIDERATIONS TO CONGRESS AND
THE STATES, UNRESTRAINED BY AN INTERPRETATION OF THE SIXTH AMENDMENT
THAT WOULD FOREVER DICTATE THE PRECISE NUMBER THAT CAN CONSTITUTE A
JURY.  CONSISTENT WITH THIS HOLDING, WE CONCLUDE THAT PETITIONER'S
SIXTH AMENDMENT RIGHTS, AS APPLIED TO THE STATES THROUGH THE FOURTEENTH
AMENDMENT, WERE NOT VIOLATED BY FLORIDA'S DECISION TO PROVIDE A SIX-MAN
RATHER THAN A 12-MAN JURY.  THE JUDGMENT OF THE FLORIDA DISTRICT COURT
OF APPEAL IS

              AFFIRMED. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  THE FULL TEXT OF THE RULE IS SET OUT IN THE APPENDIX TO THIS
OPINION, INFRA, AT 104.  SUBSEQUENT REFERENCES TO AN APPENDIX ARE TO
THE SEPARATELY BOUND APPENDIX FILED WITH THE BRIEFS IN THIS CASE
(HEREINAFTER "APP."). 

/2/  SEE APP. 5. 

/3/  FLA. STAT. SEC. 913.10(1) (1967): 

"TWELVE MEN SHALL CONSTITUTE A JURY TO TRY ALL CAPITAL CASES, AND
SIX MEN SHALL CONSTITUTE A JURY TO TRY ALL OTHER CRIMINAL CASES." 

/4/  SEE APP. 82. 

/5/  THE SUPREME COURT OF FLORIDA HAD EARLIER HELD THAT IT WAS
WITHOUT JURISDICTION TO ENTERTAIN PETITIONER'S DIRECT APPEAL FROM THE
TRIAL COURT.  SEE ID., AT 92.  UNDER FLORIDA LAW, THE DISTRICT COURT OF
APPEAL BECAME THE HIGHEST COURT FROM WHICH A DECISION COULD BE HAD. 
SEE FLA. CONST., ART. V, SEC. 4(2); FLA. APP. RULE 2.1A(5)(A); ANSIN V.
THURSTON, 101 SO.2D 808, 810 (1958). 

/6/  "FOR GOOD CAUSE SHOWN" THE COURT MAY WAIVE THE REQUIREMENTS OF
THE RULE.  FLA. RULE CRIM. PROC. 1.200. 

/7/  SEE APP. 58-60. 

/8/  ID., AT 65-66. 

/9/  SEE FLA. RULE CRIM. PROC. 1.220.  THESE DISCOVERY PROVISIONS
WERE INVOKED BY PETITIONER IN THE INSTANT CASE.  SEE APP. 3, 4, 8. 

/10/  SEE EPSTEIN, ADVANCE NOTICE OF ALIBI, 55 J.CRIM.L.C.& P.S. 29,
32 (1964). 

/11/  IN ADDITION TO FLORIDA, AT LEAST 15 STATES APPEAR TO HAVE
ALIBI-NOTICE REQUIREMENTS OF ONE SORT OR ANOTHER.  SEE ARIZ. RULE CRIM.
PROC. 192B (1956); IND. ANN. STAT. SECS. 9-1631 TO 9-1633 (1956); IOWA
CODE SEC. 777.18 (1966); KAN. STAT. ANN. SEC. 62-1341 (1964); MICH.
COMP. LAWS SECS. 768.20, 768.21 (1948); MINN. STAT. SEC. 630.14 (1967);
N.J. RULE 3:5-9 (1958); N.Y. CODE CRIM. PROC. SEC. 295-L (1958); OHIO
REV. CODE ANN. SEC. 2945.58 (1954); OKLA. STAT., TIT. 22, SEC. 585
(1969); PA. RULE CRIM. PROC. 312 (1970); S.D. COMP. LAWS SECS. 23-37-5,
23-37-6 (1967); UTAH CODE ANN. SEC. 77-22-17 (1953); VT. STAT. ANN.,
TIT. 13, SECS. 6561, 6562 (1959); WIS. STAT. SEC. 955.07 (1961).  SEE
GENERALLY 6 J.WIGMORE, EVIDENCE SEC. 1855B (3D ED. 1940).     WE DO
NOT, OF COURSE, DECIDE THAT EACH OF THESE ALIBI-NOTICE PROVISIONS IS
NECESSARILY VALID IN ALL RESPECTS; THAT CONCLUSION MUST AWAIT A
SPECIFIC CONTEXT AND AN INQUIRY, FOR EXAMPLE, INTO WHETHER THE
DEFENDANT ENJOYS RECIPROCAL DISCOVERY AGAINST THE STATE. 

/12/  SEE, E.G., BRENNAN, THE CRIMINAL PROSECUTION:  SPORTING EVENT
OR QUEST FOR TRUTH?, 1963 WASH.U.L.Q. 279, 292. 

/13/  E.G., STATE V. STUMP, 254 IOWA 1181, 119 N.W.2D 210, CERT.
DENIED, 375 U.S. 853 (1963); STATE V. BALDWIN, 47 N.J. 379, 221 A.2D
199, CERT. DENIED, 385 U.S. 980 (1966); PEOPLE V. RAKIEC, 260 APP.DIV. 
452, 457-458, 23 N.Y.S.2D 607, 612-613 (1940); COMMONWEALTH V.
VECCHIOLLI, 208 PA.SUPER.  483, 224 A.2D 96 (1966); SEE JONES V.
SUPERIOR COURT, 58 CAL.2D 56, 372 P.2D 919 (1962); LOUISELL, CRIMINAL
DISCOVERY AND SELF-INCRIMINATION:  ROGER TRAYNOR CONFRONTS THE DILEMMA,
53 CALIF.L.REV.  89 (1965); TRAYNOR, GROUND LOST AND FOUND IN CRIMINAL
DISCOVERY, 39 N.Y.U.L.REV.  228 (1964); COMMENT, THE SELF-INCRIMINATION
PRIVILEGE:  BARRIER TO CRIMINAL DISCOVERY?, 51 CALIF.L.REV.  135
(1963); 76 HARV.L.REV.  838 (1963). 

/14/  WE EMPHASIZE THAT THIS CASE DOES NOT INVOLVE THE QUESTION OF
THE VALIDITY OF THE THREATENED SANCTION HAD PETITIONER CHOSEN NOT TO
COMPLY WITH THE NOTICE-OF-ALIBI RULE.  WHETHER AND TO WHAT EXTENT A
STATE CAN ENFORCE DISCOVERY RULES AGAINST A DEFENDANT WHO FAILS TO
COMPLY, BY EXCLUDING RELEVANT, PROBATIVE EVIDENCE IS A QUESTION RAISING
SIXTH AMENDMENT ISSUES WHICH WE HAVE NO OCCASION TO EXPLORE.  CF. BRIEF
FOR AMICUS CURIAE 17-26.  IT IS ENOUGH THAT NO SUCH PENALTY WAS EXACTED
HERE. 

/15/  PETITIONER'S APPARENT SUGGESTION TO THE CONTRARY IS SIMPLY NOT
BORNE OUT BY THE FACTS OF THIS CASE.  THE MERE REQUIREMENT THAT
PETITIONER DISCLOSE IN ADVANCE HIS INTENT TO RELY ON AN ALIBI IN NO WAY
"FIXED" HIS DEFENSE AS OF THAT POINT IN TIME.  THE SUGGESTION THAT THE
STATE, BY REFERRING TO PETITIONER'S PROPOSED ALIBI IN OPENING OR
CLOSING STATEMENTS MIGHT HAVE "COMPELLED" HIM TO FOLLOW THROUGH WITH
THE DEFENSE IN ORDER TO AVOID AN UNFAVORABLE INFERENCE IS A
HYPOTHETICAL TOTALLY WITHOUT SUPPORT IN THIS RECORD.  THE FIRST
REFERENCE TO THE ALIBI CAME FROM PETITIONER'S OWN ATTORNEY IN HIS
OPENING REMARKS; THE STATE'S RESPONSE DID NOT COME UNTIL AFTER THE
DEFENSE HAD FINISHED DIRECT EXAMINATION OF MRS. SCOTTY.  PETITIONER
APPEARS TO RAISE THIS ISSUE AS A POSSIBLE DEFECT IN ALIBI-NOTICE
REQUIREMENTS IN GENERAL, WITHOUT SERIOUSLY SUGGESTING THAT HIS CHOICE
OF DEFENSE AT TRIAL IN THIS CASE WOULD HAVE BEEN DIFFERENT BUT FOR HIS
PRIOR COMPLIANCE WITH THE RULE.  INDEED, IN HIS MOTION FOR A PROTECTIVE
ORDER, PETITIONER FREELY DISCLOSED HIS INTENT TO RELY ON AN ALIBI; HIS
ONLY OBJECTION WAS TO THE FURTHER REQUIREMENT THAT HE DISCLOSE THE
NATURE OF THE ALIBI AND THE NAME OF THE WITNESS.  ON THESE FACTS, THEN,
WE SIMPLY ARE NOT CONFRONTED WITH THE QUESTION OF WHETHER A DEFENDANT
CAN BE COMPELLED IN ADVANCE OF TRIAL TO SELECT A DEFENSE FROM WHICH HE
CAN NO LONGER DEVIATE.  WE DO NOT MEAN TO SUGGEST, THOUGH, THAT SUCH A
PROCEDURE MUST NECESSARILY RAISE SERIOUS CONSTITUTIONAL PROBLEMS.  SEE
STATE EX REL. SIMOS V. BURKE, 41 WIS.2D 129, 137, 163 N.W.2D 177, 181
(1968) ("(IF WE ARE DISCUSSING THE RIGHT OF A DEFENDANT TO DEFER UNTIL
THE MOMENT OF HIS TESTIFYING THE ELECTION BETWEEN ALTERNATIVE AND
INCONSISTENT ALIBIS, WE HAVE LEFT THE CONCEPT OF THE TRIAL AS A SEARCH
FOR TRUTH FAR BEHIND"). 

/16/  SEE REPLY BRIEF FOR PETITIONER 2 AND N. 1. 

/17/  IT MIGHT ALSO BE ARGUED THAT THE "TESTIMONIAL" DISCLOSURES
PROTECTED BY THE FIFTH AMENDMENT INCLUDE ONLY STATEMENTS RELATING TO
THE HISTORICAL FACTS OF THE CRIME, NOT STATEMENTS RELATING SOLELY TO
WHAT A DEFENDANT PROPOSES TO DO AT TRIAL. 

/18/  SEE DUNCAN V. LOUISIANA, 391 U.S. 145, 151-154 (1968). 

/19/  IN TRACING THE DEVELOPMENT OF THE JURY FROM THE TIME WHEN THE
JURY PERFORMED A DIFFERENT, "INQUISITORY" FUNCTION, JAMES B. THAYER
NOTES THE FOLLOWING: 

"IN EARLY TIMES THE INQUISITION HAD NO FIXED NUMBER.  IN THE
FRANKISH EMPIRE WE ARE TOLD OF 66, 41, 20, 17, 13, 11, 8, 7, 53, 15,
AND A GREAT VARIETY OF OTHER NUMBERS.  SO ALSO AMONG THE NORMANS IT
VARIED MUCH, AND 'TWELVE HAS NOT EVEN THE PLACE OF THE PREVAILING
GRUNDZAHL;' THE DOCUMENTS SHOW ALL SORTS OF NUMBERS-- 4, 5, 6, 12, 13
18, 21, 27, 30, AND SO ON.  IT SEEMS TO HAVE BEEN THE RECOGNITIONS
UNDER HENRY II. THAT ESTABLISHED TWELVE AS THE USUAL NUMBER; EVEN THEN
THE NUMBER WAS NOT UNIFORM."  THE JURY AND ITS DEVELOPMENT, 5
HARV.L.REV.  295 (1892) (CITATIONS OMITTED). 

SEE J. THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW
85 (1898). 

SIMILARLY, PROFESSOR SCOTT WRITES: 

"AT THE BEGINNING OF THE THIRTEENTH CENTURY TWELVE WAS INDEED THE
USUAL BUT NOT THE INVARIABLE NUMBER.  BUT BY THE MIDDLE OF THE
FOURTEENTH CENTURY THE REQUIREMENT OF TWELVE HAD PROBABLY BECOME
DEFINITELY FIXED.  INDEED THIS NUMBER FINALLY CAME TO BE REGARDED WITH
SOMETHING LIKE SUPERSTITUOUS REVERENCE."  A. SCOTT, FUNDAMENTALS OF
PROCEDURE IN ACTIONS AT LAW 75-76 (1922) (FOOTNOTES OMITTED). 

/20/  1 W.HOLDSWORTH, A HISTORY OF ENGLISH LAW 325 (1927); WELLS,
THE ORIGIN OF THE PETTY JURY, 27 L.Q.REV.  347, 357 (1911).  THE LATTER
AUTHOR TRACES THE DEVELOPMENT OF THE 12-MAN PETIT JURY THROUGH THE
FOLLOWING FOUR STAGES.  THE FIRST STAGE SAW THE DEVELOPMENT OF THE
PRESENTMENT JURY, MADE UP GENERALLY OF 12 PERSONS FROM THE HUNDRED,
WHOSE FUNCTION WAS SIMPLY TO CHARGE THE ACCUSED WITH A CRIME; THE TEST
OF HIS GUILT OR INNOCENCE WAS BY SOME OTHER MEANS, SUCH AS TRIAL BY
ORDEAL, BATTLE, OR WAGER OF LAW.  IN THE SECOND STATE, THE PRESENTMENT
JURY BEGAN TO BE ASKED FOR ITS VERDICT ON THE GUILT OR INNOCENCE OF THE
PERSON IT HAD ACCUSED, AND HENCE BEGAN TO FUNCTION AS BOTH A PETIT AND
A GRAND JURY.  IN THE THIRD STAGE, "COMBINATION JURIES" WERE FORMED TO
RENDER THE VERDICT IN ORDER TO BROADEN THE BASE OF REPRESENTATION
BEYOND THE LOCAL HUNDRED, OR BOROUGH, TO INCLUDE THE COUNTY.  THESE
JURIES WERE FORMED BY ADDING ONE OR MORE PRESENTMENT JURIES FROM ONE OR
MORE HUNDREDS, AS WELL AS CERTAIN OFFICIALS SUCH AS CORONERS OR
KNIGHTS.  "THESE COMBINATION JURIES NUMBERED FROM TWENTY-FOUR TO EIGHTY
FOUR JURORS, AND THE NUMBER BECAME EMBARRASSINGLY LARGE AND UNWIELDY,
AND THE SENSE OF THE PERSONAL RESPONSBILITY OF EACH JUROR WAS IN DANGER
OF BEING LOST."  ID., AT 356.  THE OBVIOUS FOURTH STEP WAS THE CREATION
OF A SPECIAL JURY "FORMED BY SELECTING ONE OR MORE JURORS FROM EACH OF
SEVERAL OF THE PRESENTMENT JURIES OF THE HUNDREDS, UNTIL THE NUMBER
TWELVE IS REACHED . . . PROBABLY BECAUSE THAT WAS THE NUMBER OF THE
PRESENTMENT JURY FROM THE HUNDRED.  THEREFORE, JUST AS THE PRESENTMENT
JURY REPRESENTED THE VOICE OF THE HUNDRED IN MAKING THE ACCUSATION, SO
THE JURY OF 'THE COUNTRY', WITH THE SAME NUMBER, REPRESENTED THE WHOLE
COUNTY IN DECIDING WHETHER THE ACCUSED WAS GUILTY OR NOT."  ID., AT
357. 

NEITHER OF THESE AUTHORS HAZARDS A GUESS AS TO WHY THE PRESENTMENT
JURY ITSELF NUMBERED 12. 

/21/  ID., AT 357. 

/22/  1 E.COKE, INSTITUTES OF THE LAWS OF ENGLAND *155A (1ST AMER. 
ED. 1812). 

/23/  THUS JOHN PROFFATT IN HIS TREATISE ON JURY TRIALS NOTES THAT
THE REASONS WHY THE NUMBER OF THE PETIT JURY IS 12, ARE "QUAINTLY
GIVEN" IN DUNCOMBE'S TRIALS PER PAIS, AS FOLLOWS: 

"(THIS NUMBER IS NO LESS ESTEEMED BY OUR OWN LAW THAN BY HOLY WRIT. 
IF THE TWELVE APOSTLES ON THEIR TWELVE THRONES MUST TRY US IN OUR
ETERNAL STATE, GOOD REASON HATH THE LAW TO APPOINT THE NUMBER TWELVE TO
TRY US IN OUR TEMPORAL.  THE TRIBUES OF ISRAEL WERE TWELVE, THE
PATRIARCHS WERE TWELVE, AND SOLOMON'S OFFICERS WERE TWELVE."  TRIAL BY
JURY 112 N. 4 (1877), QUOTING G. DUNCOMBE, 1 TRIALS PER PAIS 92-93 (8TH
ED. 1766). 

ATTEMPTS HAVE ALSO BEEN MADE TO TRACE THE NUMBER 12 TO EARLY ORIGINS
ON THE EUROPEAN CONTINENT, PARTICULARLY IN SCANDINAVIA.  SEE F. BUSCH,
1 LAW AND TACTICS IN JURY TRIALS 24 (1959).  SEE GENERALLY W. FORSYTH,
HISTORY OF TRIAL BY JURY 4 (1852); T. REPP, TRIAL BY JURY (1832).  BUT
EVEN AS TO THE CONTINENTAL PRACTICE, NO BETTER REASONS ARE DISCOVERED
FOR THE NUMBER 12.  THUS PROFFATT, IN DUSCUSSING THE ANCIENT
SCANDINAVIAN TRIBUNALS, COMMENTS: 

"TWELVE WAS NOT ONLY THE COMMON NUMBER THROUGHOUT EUROPE, BUT WAS
THE FAVORITE NUMBER IN EVERY BRANCH OF THE POLITY AND JURISPRUDENCE OF
THE GOTHIC NATIONS. 

"THE SINGULAR UNANIMITY IN THE SELECTION OF THE NUMBER TWELVE TO
COMPOSE CERTAIN JUDICIAL BODIES, IS A REMARKABLE FACT IN THE HISTORY OF
MANY NATIONS.  MANY HAVE SOUGHT TO ACCOUNT FOR THIS GENERAL CUSTOM, AND
SOME HAVE BASED IT ON RELIGIOUS GROUNDS.  ONE OF THE ANCIENT KINGS OF
WALES, MORGAN OF GLA-MORGAN, TO WHOM IS ACCREDITED THE ADOPTION OF THE
TRIAL BY JURY IN A.D. 725, CALLS IT THE 'APOSTOLIC LAW.'  'FOR,' SAID
HE, 'AS CHRIST AND HIS TWELVE APOSTLES WERE FINALLY TO JUDGE THE WORLD,
SO HUMAN TRIBUNALS SHOULD BE COMPOSED OF THE KING AND TWELVE WISE
MEN.'"  PROFFATT, TRIAL BY JURY 11 N. 2 (1877) (CITATIONS OMITTED). 

SEE ALSO 1 L.PIKE, A HISTORY OF CRIME IN ENGLAND 122 (1873). 

IN THIS CONNECTION IT IS INTERESTING TO NOTE THE FOLLOWING OATH,
REQUIRED OF THE EARLY 12-MAN JURY: 

"HEAR THIS, YE JUSTICES.  THAT I WILL SPEAK THE TRUTH OF THAT WHICH
YE SHALL ASK OF ME ON THE PART OF THE KING, AND I WILL DO FAITHFULLY TO
THE BEST OF MY ENDEAVOUR.  SO HELP ME GOD, AND THESE HOLY APOSTLES." 
W. FORSYTH, TRIAL BY JURY 197 (1852). 

SEE PROFFATT, SUPRA, AT 42. 

/24/  SEE SUPRA, N. 19. 

/25/  P. DEVLIN, TRIAL BY JURY 8 (1956); F. HELLER, THE SIXTH
AMENDMENT 64 (1951); W. WILLOUGHBY, PRINCIPLES OF JUDICIAL
ADMINISTRATION 503 (1929); TAMM, THE FIVE-MAN CIVIL JURY:  A PROPOSED
CONSTITUTIONAL AMENDMENT, 51 GEO.L.J. 120, 128-130 (1962); WIEHL, THE
SIX MAN JURY, 4 GONZAGA L.REV.  35, 38-39 (1968); SEE THAYER, SUPRA, N.
19, AT 89-90; WHITE, ORIGIN AND DEVELOPMENT OF TRIAL BY JURY, 29
TENN.L.REV.  8, 15-16, 17 (1959). 

/26/  AT THE TIME OF THE CRIME AND AT THE FIRST TRIAL THE STATUTES
OF THE TERRITORY OF UTAH-- WHOLLY APART FROM THE SIXTH AMENDMENT--
ENSURED THOMPSON A 12-MAN JURY.  SEE 170 U.S.,AT 345.  THE COURT FOUND
THE EX POST FACTO QUESTION EASY TO RESOLVE, ONCE IT WAS ASSUMED THAT
UTAH'S SUBSEQUENT CONSTITUTIONAL PROVISION DEPRIVED THOMPSON OF A RIGHT
PREVIOUSLY GUARANTEED HIM BY THE UNITED STATES CONSTITUTION; THE
POSSIBILITY THAT THE SAME RESULT MIGHT HAVE BEEN REACHED SOLELY ON THE
BASIS OF THE RIGHTS FORMERLY ACCORDED THOMPSON UNDER THE TERRITORIAL
STATUTE WAS HINTED AT, BUT WAS NOT EXPLICITLY CONSIDERED. 

/27/  WHETHER OR NOT THE MAGNA CARTA'S REFERENCE TO A JUDGMENT BY
ONE'S PEERS WAS A REFERENCE TO A "JURY"-- A FACT THAT HISTORIANS NOW
DISPUTE, SEE, E.G., 1 F.POLLOCK & F.MAITLAND, THE HISTORY OF ENGLISH
LAW BEFORE THE TIME OF EDWARD I, P. 173 N. 3 (2D ED. 1909); FRANKFURTER
& CORCORAN, PETTY FEDERAL OFFENSES AND THE CONSTITUTIONAL GUARANTY OF
TRIAL BY JURY, 39 HARV.L.REV.  917, 922 N. 14 (1926) (CRITICIZING
THOMPSON V. UTAH'S RELIANCE ON THE DOCUMENT "LONG AFTER SCHOLARS HAD
EXPOSED THIS ANCIENT ERROR")-- IT SEEMS CLEAR THAT THE GREAT CHARTER IS
NOT AUTHORITY FOR FIXING THE NUMBER OF THE JURY AT 12.  SEE W.
MCKECHNIE, MAGNA CARTA 134-138, 375-382 (1958); SCOTT, TRIAL BY JURY
AND THE REFORM OF CIVIL PROCEDURE, 31 HARV.L.REV.  669, 672 (1918). 

AS THE TEXT INDICATES, THE QUESTION IS NOT WHETHER THE 12-MAN JURY
IS TRACED TO 1215 OR TO 1789, BUT WHETHER THAT PARTICULAR FEATURE MUST
BE ACCEPTED AS A SINE QUA NON OF THE JURY TRIAL GUARANTEED BY THE
CONSTITUTION.  SEE HELLER, SUPRA, N. 25, AT 64. 

/28/  THE THOMPSON OPINION ALSO REASONED THAT IF A JURY CAN BE
REDUCED FROM 12 TO EIGHT, THEN THERE WAS NOTHING TO PREVENT ITS
SIMILARLY BEING REDUCED TO FOUR OR TWO OR EVEN ZERO, THUS DISPENSING
WITH THE JURY ALTOGETHER.  SEE 170 U.S.,AT 353.  THAT BIT OF "LOGIC,"
RESURRECTED TODAY IN MR. JUSTICE HARLAN'S CONCURRING OPINION, POST, AT
126, SUFFERS SOMEWHAT AS SOON AS ONE RECOGNIZES THAT HE CAN GET OFF THE
"SLIPPERY SLOPE" BEFORE HE REACHES THE BOTTOM.  WE HAVE NO OCCASION IN
THIS CASE TO DETERMINE WHAT MINIMUM NUMBER CAN STILL CONSTITUTE A
"JURY," BUT WE DO NOT DOUBT THAT SIX IS ABOVE THAT MINIMUM. 

/29/  A RULING THAT THE SIXTH AMENDMENT REFERS TO A COMMON-LAW JURY
WAS ESSENTIAL TO THE HOLDING IN RASSMUSSEN V. UNITED STATES, 197 U.S.
516 (1905), WHERE THE COURT HELD INVALID A CONVICTION BY A SIX-MAN JURY
IN ALASKA.  THE RULING WAS ACCEPTED AT THE GOVERNMENT'S CONCESSION
WITHOUT DISCUSSION OR CITATION; THE MAJOR FOCUS OF THE CASE WAS ON THE
QUESTION WHETHER THE SIXTH AMENDMENT WAS APPLICABLE TO THE TERRITORY IN
QUESTION AT ALL.  SEE 197 U.S.,AT 519. 

/30/  SIMILARLY, CASES INTERPRETING THE JURY TRIAL PROVISIONS OF THE
SEVENTH AMENDMENT GENERALLY LEAP FROM THE FACT THAT THE JURY POSSESSED
A CERTAIN FEATURE AT COMMON LAW TO THE CONCLUSION THAT THAT FEATURE
MUST HAVE BEEN PRESERVED BY THE AMENDMENT'S SIMPLE REFERENCE TO TRIAL
BY "JURY."  E.G., CAPITAL TRACTION CO. V. HOF, 174 U.S. 1, 13-14
(1899); AMERICAN PUBLISHING CO. V. FISHER, 166 U.S. 464, 468 (1897). 
WHILE MUCH OF OUR DISCUSSION IN THIS CASE MAY BE THOUGHT TO BEAR
EQUALLY ON THE INTERPRETATION OF THE SEVENTH AMENDMENT'S JURY TRIAL
PROVISIONS, WE EMPHASIZE THAT THE QUESTION IS NOT BEFORE US; WE DO NOT
DECIDE WHETHER, FOR EXAMPLE, ADDITIONAL REFERENCES TO THE "COMMON LAW"
THAT OCCUR IN THE SEVENTH AMENDMENT MIGHT SUPPORT A DIFFERENT
INTERPRETATION.  SEE INFRA, AT 97 AND N. 44. 

/31/  THE PATTON OPINION FURNISHES AN INTERESTING ILLUSTRATION OF
THE COURT'S WILLINGNESS TO RE-EXAMINE EARLIER ASSERTIONS ABOUT THE
NATURE OF "JURY TRIAL" IN ALMOST EVERY RESPECT EXCEPT THAT 12-MAN-JURY
REQUIREMENT.  PATTON REAFFIRMED THE 12-MAN REQUIREMENT WITH A SIMPLE
CITATION TO THOMPSON V. UTAH, WHILE AT THE SAME TIME DISCARDING AS
"DICTUM" THE EQUALLY DOGMATIC ASSERTION IN THOMPSON THAT THE
REQUIREMENT COULD NOT BE WAIVED.  SEE 281 U.S.,AT 293.     /32/  U.S.
CONST., ART. III, SEC. 2, CL. 3. 

/33/  FRANKFURTER & CORCORAN, SUPRA, N. 27, AT 969. 

/34/  THE ONLY ATTENTION GIVEN THE JURY TRIAL PROVISIONS INVOLVED
SUCH QUESTIONS AS WHETHER THE RIGHT SHOULD ALSO BE EXTENDED TO CIVIL
CASES, SEE HENDERSON, THE BACKGROUND OF THE SEVENTH AMENDMENT, 80
HARV.L.REV.  289, 292-294 (1966), WHETHER THE WORDING SHOULD EMBRACE
THE "TRIAL OF ALL CRIMES" OR THE "TRIAL OF ALL CRIMINAL OFFENSES," SEE
FRANKFURTER & CORCORAN, SUPRA, N. 27, AT 969, AND HOW TO PROVIDE FOR
THE TRIAL OF CRIMES NOT COMMITTED IN ANY STATE, ID., AT 969 N. 244. 
SEE 2 M. FARRAND, RECORDS OF THE FEDERAL CONVENTION 144, 173, 187, 433,
438, 576, 587-588, 601, 628 (1911).  SEE ALSO 4 ID.,AT 121 (1937)
(INDEXING ALL REFERENCES TO ART. III, SEC. 2, CL. 3 IN FARRAND'S
RECORDS). 

/35/  SEE HELLER, SUPRA, N. 25, AT 31-33, 93; WARREN, NEW LIGHT ON
THE HISTORY OF THE FEDERAL JUDICIARY ACT OF 1789, 37 HARV.L.REV.  49,
105 (1923).  TECHNICALLY, "VICINAGE" MEANS NEIGHBORHOOD, AND "VICINAGE
OF THE JURY" MEANT JURY OF THE NEIGHBORHOOD OR, IN MEDIEVAL ENGLAND,
JURY OF THE COUNTY.  SEE 4 W.BLACKSTONE, COMMENTARIES *350-351.  WHILE
ARTICLE III PROVIDED FOR VENUE, IT DID NOT IMPOSE THE EXPLICIT JUROR
RESIDENCE REQUIREMENT ASSOCIATED WITH THE CONCEPT OF "VICINAGE."  SEE
MARYLAND V. BROWN, 295 F.SUPP.  63, 80 (1969).  IN THE VIRGINIA
CONVENTION, MADISON CONCEDED THAT THE OMISSION WAS DELIBERATE AND
DEFENDED IT AS FOLLOWS: 

"IT WAS OBJECTED YESTERDAY, THAT THERE WAS NO PROVISION FOR A JURY
FROM THE VICINAGE.  IF IT COULD HAVE BEEN DONE WITH SAFETY, IT WOULD
NOT HAVE BEEN OPPOSED.  IT MIGHT SO HAPPEN THAT A TRIAL WOULD BE
IMPRACTICABLE IN THE COUNTY.  SUPPOSE A REBELLION IN A WHOLE DISTRICT,
WOULD IT NOT BE IMPOSSIBLE TO GET A JURY?  THE TRIAL BY JURY IS HELD AS
SACRED IN ENGLAND AS IN AMERICA.  THERE ARE DEVIATIONS OF IT IN
ENGLAND: YET GREATER DEVIATIONS HAVE HAPPENED HERE SINCE WE ESTABLISHED
OUR INDEPENDENCE, THAN HAVE TAKEN PLACE THERE FOR A LONG TIME, THOUGH
IT BE LEFT TO THE LEGISLATIVE DISCRETION.  IT IS A MISFORTUNE IN ANY
CASE THAT THIS TRIAL SHOULD BE DEPARTED FROM, YET IN SOME CASES IT IS
NECESSARY.  IT MUST BE THEREFORE LEFT TO THE DISCRETION OF THE
LEGISLATURE TO MODIFY IT ACCORDING TO CIRCUMSTANCES.  THIS IS A
COMPLETE AND SATISFACTORY ANSWER."  3 M.FARRAND, RECORDS OF THE FEDERAL
CONVENTION 332 (1911). 

/36/  1 ANNALS OF CONG. 435 (1789). 

/37/  THE SENATE JOURNAL INDICATES THAT EVERY CLAUSE OF THE HOUSE
VERSION OF THE PROPOSED AMENDMENT WAS DELETED EXCEPT THE CLAUSE
RELATING TO GRAND JURY INDICTMENT.  SENATE JOURNAL, SEPT. 4, 1789, 1ST
CONG., 1ST SESS., 71.  A SUBSEQUENT MOTION TO RESTORE THE WORDS
PROVIDING FOR TRIAL "BY AN IMPARTIAL JURY OF THE VICINAGE, WITH THE
REQUISITE OF UNANIMITY FOR CONVICTION, THE RIGHT OF CHALLENGE, AND
OTHER ACCUSTOMED REQUISITES" FAILED OF ADOPTION.  SENATE JOURNAL, SEPT.
9, 1789, 1ST CONG., 1ST SESS., 77. 

/38/  THE PRINCIPAL SOURCE OF INFORMATION ON THE PROCEEDINGS OF THE
SENATE IN THE FIRST CONGRESS IS THE JOURNAL OF SENATOR MACLAY OF
PENNSYLVANIA, WHO UNFORTUNATELY WAS ILL DURING THE SENATE DEBATE ON THE
AMENDMENTS.  SEE JOURNAL OF WILLIAM MACLAY 144-151 (1927); HELLER,
SUPRA, N. 25, AT 31-32. 

/39/  MADISON WRITES: 

"THE SENATE HAVE SENT BACK THE PLAN OF AMENDMENTS WITH SOME
ALTERATIONS WHICH STRIKE, IN MY OPINION, AT THE MOST SALUTARY
ARTICLES.  IN MANY OF THE STATES, JURIES, EVEN IN CRIMINAL CASES, ARE
TAKEN FROM THE STATE AT LARGE; IN OTHERS, FROM DISTRICTS OF
CONSIDERABLE EXTENT; IN VERY FEW FROM THE COUNTY ALONE.  HENCE A
DISLIKE TO THE RESTRAINT WITH RESPECT TO VICINAGE, WHICH HAS PRODUCED A
NEGATIVE ON THAT CLAUSE . . . SEVERAL OTHERS HAVE HAD A SIMILAR FATE." 
LETTER FROM JAMES MADISON TO EDMUND PENDLETON, SEPT. 14, 1789, IN 1
LETTERS AND OTHER WRITINGS OF JAMES MADISON 491 (1865). 

/40/  LETTER FROM JAMES MADISON TO EDMUND PENDLETON, SEPT. 23, 1789,
IN ID., AT 492-493.  SEE GENERALLY HELLER, SUPRA, N. 25, AT 28-34;
WARREN, SUPRA, N. 35, AT 118-132. 

/41/  SEE HELLER, SUPRA, N. 25, AT 93. 

/42/  PROFFATT, SUPRA, N. 23, AT 119; 1 G.CURTIS, HISTORY OF THE
ORIGIN, FORMATION, AND ADOPTION OF THE CONSTITUTION OF THE UNITED
STATES 23 (1863). 

/43/  THE ACT PROVIDED IN SEC. 29: 

"THAT IN CASES PUNISHABLE WITH DEATH, THE TRIAL SHALL BE HAD IN THE
COUNTY WHERE THE OFFENCE WAS COMMITTED, OR WHERE THAT CANNOT BE DONE
WITHOUT GREAT INCONVENIENCE, TWELVE PETIT JURORS AT LEAST SHALL BE
SUMMONED FROM THENCE."  ACT OF SEPT. 24, 1789, SEC. 29, 1 STAT. 88. 

/44/  SIMILARLY, THE FIRST CONTINENTAL CONGRESS RESOLVED IN OCTOBER
1774: 

"THAT THE RESPECTIVE COLONIES ARE ENTITLED TO THE COMMON LAW OF
ENGLAND, AND MORE ESPECIALLY TO THE GREAT AND INESTIMABLE PRIVILEGE OF
BEING TRIED BY THEIR PEERS OF THE VICINAGE, ACCORDING TO THE COURSE OF
THAT LAW."  1 JOURNALS OF THE CONTINENTAL CONGRESS 69 (C. FORD ED.
1904).  AND THE NORTHWEST ORDINANCE OF 1787 DECLARED THAT THE
INHABITANTS OF THAT TERRITORY SHOULD "ALWAYS BE ENTITLED TO THE
BENEFITS OF THE WRITS OF HABEAS CORPUS, AND OF THE TRIAL BY JURY . . .
AND OF JUDICIAL PROCEEDINGS ACCORDING TO THE COURSE OF THE COMMON
LAW."  ORDINANCE OF 1787, ART. II, 1 U.S.C. XXXVIII.  SEE CAPITAL
TRACTION CO. V. HOF, 174 U.S. 1, 5-8 (1899) (CONCLUDING FROM THESE
SOURCES THAT THE EXPLICIT REFERENCE TO THE "COMMON LAW" IN THE SEVENTH
AMENDMENT, REFERRED TO THE RULES OF THE COMMON LAW OF ENGLAND, NOT THE
RULES AS MODIFIED BY LOCAL OR STATE PRACTICE). 

/45/  ONE SCHOLAR, HOWEVER, IN INVESTIGATING THE RECEPTION OF THE
ENGLISH COMMON LAW BY THE EARLY AMERICAN COLONIES, NOTES THAT THE
PROCESS: 

"WAS NOT SO SIMPLE AS THE LEGAL THEORY WOULD LEAD US TO ASSUME. 
WHILE THEIR GENERAL LEGAL CONCEPTIONS WERE CONDITIONED BY, AND THEIR
TERMINOLOGY DERIVED FROM, THE COMMON LAW, THE EARLY COLONISTS WERE FAR
FROM APPLYING IT AS A TECHNICAL SYSTEM, THEY OFTEN IGNORED IT OR DENIED
ITS SUBSIDIARY FORCE, AND THEY CONSCIOUSLY DEPARTED FROM MANY OF ITS
MOST ESSENTIAL PRINCIPLES."  REINSCH, THE ENGLISH COMMON LAW IN THE
EARLY AMERICAN COLONIES, IN 1 SELECT ESSAYS IN ANGLO-AMERICAN LEGAL
HISTORY, 367, 415 (1907). 

WITH RESPECT TO THE JURY TRIAL IN PARTICULAR, WHILE MOST OF THE
COLONIES ADOPTED THE INSTITUTION IN ITS ENGLISH FORM AT AN EARLY DATE,
MORE THAN ONE APPEARS TO HAVE ACCEPTED THE INSTITUTION AT VARIOUS
STAGES ONLY WITH "VARIOUS MODIFICATIONS."  SEE ID., AT 412.  THUS
CONNECTICUT PERMITTED MAJORITY DECISION IN CASE OF CONTINUED FAILURE TO
AGREE, ID., AT 386, VIRGINIA EXPRESSED REGRET AT BEING UNABLE TO RETAIN
THE "VICINAGE" REQUIREMENT OF THE ENGLISH JURY, ID., AT 405,
PENNSYLVANIA PERMITTED MAJORITY VERDICTS AND EMPLOYED JURIES OF SIX OR
SEVEN, ID., AT 398, AND THE CAROLINAS DISCONTINUED THE UNANIMITY
REQUIREMENT, 5 F.THORPE, FEDERAL AND STATE CONSTITUTIONS 2781 (1909)
(ART. 69, "FUNDAMENTAL CONSTITUTIONS OF CAROLINA").  SEE ALSO HELLER,
SUPRA, N. 25, AT 13-21. 

THE STATES THAT HAD ADOPTED CONSTITUTIONS BY THE TIME OF THE
PHILADELPHIA CONVENTION IN 1787 APPEAR FOR THE MOST PART TO HAVE EITHER
EXPLICITLY PROVIDED THAT THE JURY WOULD CONSIST OF 12, SEE VA. CONST.
OF 1776, SEC. 8, IN 7 F.THORPE, FEDERAL AND STATE CONSTITUTIONS 3813
(1909), OR TO HAVE SUBSEQUENTLY INTERPRETED THEIR JURY TRIAL PROVISIONS
TO INCLUDE THAT REQUIREMENT.  IN AT LEAST ONE INSTANCE INVOLVING
CONVICTION BY EIGHT JURORS, A SUBSEQUENT SOUTH CAROLINA DECISION
INTERPRETING THE PROVISION FOR TRIAL BY "JURY,"  REFUSED TO DECLARE THE
12-MAN REQUIREMENT AN ESSENTIAL FEATURE OF THAT INSTITUTION, IMMUNE
FROM CHANGE BY THE LEGISLATURE.  SEE STATE V. STARLING, 15 RICH.  120,
134 (S.C. CT. OF ERRORS 1867).  THE CONVICTION WAS AFFIRMED WITHOUT
DECIDING THE QUESTION, SINCE THE STATE HAD BY THAT TIME ADOPTED A
CONSTITUTION SPECIFICALLY EMPOWERING THE LEGISLATURE TO DETERMINE THE
NUMBER OF JURORS IN CERTAIN INFERIOR COURTS.  SOUTH CAROLINA REMAINS
TODAY ONE OF APPARENTLY FIVE STATES, INCLUDING FLORIDA, THAT PROVIDE
FOR JURIES OF LESS THAN 12 IN FELONY CASES WHERE IMPRISONMENT FOR MORE
THAN ONE YEAR MAY BE IMPOSED.  SEE LA.CONST.,ART.  7, SEC. 41; LA.
CRIM. PROC. CODE ANN., ART. 779 (SUPPL 1969); S.C. CONST., ART. 1,
SECS. 18, 25; ART. 5, SEC. 22; S.C. CODE ANN. SECS. 15-618, 15-612
(1962); TEX. CONST., ART. 1, SECS. 10, 15; ART. 5, SEC. 17; TEX. CODE
CRIM. PROC., ARTS. 4.07, 37.02 (1966); TEX. PEN.  CODE, ART. 1148
(1961); UTAH CONST., ART. 1, SECS. 10, 12; UTAH CODE ANN. SEC. 78-46-5
(1953). 

IN ADDITION, IT APPEARS THAT AT LEAST NINE STATES PRESENTLY PROVIDE
FOR LESS THAN 12-MAN JURIES IN TRIALS OF CERTAIN OFFENSES CARRYING
MAXIMUM PENALTIES OF ONE YEAR'S IMPRISONMENT.  SEE BRIEF FOR APPELLEE
A13-A15, BALDWIN V. NEW YORK, ANTE, P. 66 (COLLECTING STATUTORY
PROVISIONS).  SEE ALSO 17 MASS.L.Q.NO. 4, P. 12 (1932) (NOTING STATES
THAT HAVE INTERPRETED THE "RIGHT OF TRIAL BY JURY" TO PERMIT TRIAL BY
LESS THAN 12 IN CERTAIN CASES).  FOR A "POLL OF STATE PRACTICE," SEE
MR. JUSTICE HARLAN'S CONCURRING OPINION, POST, AT 122, 136 137, AND
APP. 

/46/  WE INTIMATE NO VIEW WHETHER OR NOT THE REQUIREMENT OF
UNANIMITY IS AN INDISPENSABLE ELEMENT OF THE SIXTH AMENDMENT JURY
TRIAL.  WHILE MUCH OF THE ABOVE HISTORICAL DISCUSSION APPLIES AS WELL
TO THE UNANIMITY AS TO THE 12-MAN REQUIREMENT, THE FORMER, UNLIKE THE
LATTER, MAY WELL SERVE AN IMPORTANT ROLE IN THE JURY FUNCTION, FOR
EXAMPLE, AS A DEVICE FOR INSURING THAT THE GOVERNMENT BEAR THE HEAVIER
BURDEN OF PROOF.  SEE HIBDON V. UNITED STATES 204 F.2D 834, 838 (C.A.
6TH CIR. 1953); TAMM, SUPRA, N. 25, AT 139.  BUT CF. COMMENT, WAIVER OF
JURY UNANIMITY-- SOME DOUBTS ABOUT REASONABLE DOUBT, 21 U.CHI.L.REV. 
438, 441-443 (1954).  SEE GENERALLY AMERICAN BAR ASSOCIATION PROJECT ON
STANDARDS FOR CRIMINAL JUSTICE, TRIAL BY JURY 42-45 (APPROVED DRAFT
1968). 

/47/  IT IS TRUE, OF COURSE, THAT THE "HUNG JURY" MIGHT BE THOUGH TO
RESULT IN A MINIMAL ADVANTAGE FOR THE DEFENDANT, WHO REMAINS
UNCONVICTED AND WHO ENJOYS THE PROSPECT THAT THE PROSECUTION WILL
EVENTUALLY BE DROPPED IF SUBSEQUENT JURIES ALSO "HANG."  THUS A 100-MAN
JURY WOULD UNDOUBTEDLY BE MORE FAVORABLE FOR DEFENDANTS THAN A 12-MAN
JURY.  BUT WHEN THE COMPARISON IS BETWEEN 12 AND SIX, THE ODDS OF
CONTINUALLY "HANGING" THE JURY SEEM SLIGHT, AND THE NUMERICAL
DIFFERENCE IN THE NUMBER NEEDED TO CONVICT SEEMS UNLIKELY TO INURE
PERCEPTIBLY TO THE ADVANTAGE OF EITHER SIDE. 

/48/  SEE WIEHL, SUPRA, N. 25, AT 40-41; TAMM, SUPRA, N. 25, AT 134
136; CRONIN, SIX-MEMBER JURIES IN DISTRICT COURTS, 2 BOSTON B.J.NO. 4,
P. 27 (1958); SIX-MEMBER JURIES TRIED IN MASSACHUSETTS DISTRICT COURT,
42 J.AM.JUD.SOC.  136 (1958).  SEE ALSO NEW JERSEY EXPERIMENTS WITH SIX
MAN JURY, 9 BULL.  OF THE SECTION OF JUD.  ADMIN.  OF THE ABA (MAY
1966); PHILLIPS, A JURY OF SIX IN ALL CASES, 30 CONN.B.J. 354 (1956). 

/49 STUDIES OF THE OPERATIVE FACTORS CONTRIBUTING TO SMALL GROUP
DELIBERATION AND DECISIONMAKING SUGGEST THAT JURORS IN THE MINORITY ON
THE FIRST BALLOT ARE LIKELY TO BE INFLUENCED BY THE PROPORTIONAL SIZE
OF THE MAJORITY ALIGNED AGAINST THEM.  SEE H. KALVEN & H. ZEISEL, THE
AMERICAN JURY 462-463, 488-489 (1966); C. HAWKINS, INTERACTION AND
COALITION REALIGNMENTS IN CONSENSUS-SEEKING GROUPS:  A STUDY OF
EXPERIMENTAL JURY DELIBERATIONS, 13, 146, 156, AUG. 17, 1960
(UNPUBLISHED THESIS ON FILE AT LIBRARY OF CONGRESS); CF. ASCH, EFFECTS
OF GROUP PRESSURE UPON THE MODIFICATION AND DISTORTION OF JUDGMENTS, IN
READINGS IN SOCIAL PSYCHOLOGY 2 (G. SWANSON, T. NEWCOMB & E. HARTLEY ET
AL., EDS., 1952).  SEE GENERALLY NOTE, ON INSTRUCTING DEADLOCKED
JURIES, 78 YALE L.J. 100, 108 AND N. 30 (AND AUTHORITIES CITED), 110
111 (1968).  THUS IF A DEFENDANT NEEDS INITIALLY TO PERSUADE FOUR
JURORS THAT THE STATE HAS NOT MET ITS BURDEN OF PROOF IN ORDER TO
ESCAPE ULTIMATE CONVICTION BY A 12-MAN JURY, HE ARGUABLY ESCAPES BY
INITIALLY PERSUADING HALF THAT NUMBER IN A SIX-MAN JURY; RANDOM
REDUCTION, WITHIN LIMITS, OF THE ABSOLUTE NUMBER OF THE JURY WOULD NOT
AFFECT THE OUTCOME.  SEE ALSO C. JOINER, CIVIL JUSTICE AND THE JURY 31,
83 (1962) (CONCLUDING THAT THE DELIBERATIVE PROCESS SHOULD BE THE SAME
IN EITHER THE SIX- OR 12-MAN JURY). 

/50/  SEE FED. RULE CRIM. PROC. 23(B) ("JURIES SHALL BE OF 12"). 

        APPENDIX TO OPINION OF THE COURT 

FLA. RULE CRIM. PROC. 1.200: 

     "UPON THE WRITTEN DEMAND OF THE PROSECUTING ATTORNEY,

  SPECIFYING AS PARTICULARLY AS IS KNOWN TO SUCH PROSECUTING

  ATTORNEY, THE PLACE, DATE AND TIME OF THE COMMISSION OF THE CRIME

  CHARGED, A DEFENDANT IN A CRIMINAL CASE WHO INTENDS TO OFFER

  EVIDENCE OF AN ALIBI IN HIS DEFENSE SHALL, NOT LESS THAN TEN DAYS

  BEFORE TRIAL OR SUCH OTHER TIME AS THE COURT MAY DIRECT, FILE AND

SERVE UPON SUCH PROSECUTING ATTORNEY A NOTICE IN WRITING OF HIS

  INTENTION TO CLAIM SUCH ALIBI, WHICH NOTICE SHALL CONTAIN

  SPECIFIC INFORMATION AS TO THE PLACE AT WHICH THE DEFENDANT

  CLAIMS TO HAVE BEEN AT THE TIME OF THE ALLEGED OFFENSE AND, AS

  PARTICULARLY AS IS KNOWN TO DEFENDANT OR HIS ATTORNEY, THE NAMES

  AND ADDRESSES OF THE WITNESSES BY WHOM HE PROPOSES TO ESTABLISH

  SUCH ALIBI.  NOT LESS THAN FIVE DAYS AFTER RECEIPT OF DEFENDANT'S

  WITNESS LIST, OR SUCH OTHER TIMES AS THE COURT MAY DIRECT, THE

  PROSECUTING ATTORNEY SHALL FILE AND SERVE UPON THE DEFENDANT THE

NAMES AND ADDRESSES (AS PARTICULARLY AS ARE KNOWN TO THE

PROSECUTING ATTORNEY) OF THE WITNESSES THE STATE PROPOSES TO

  OFFER IN REBUTTAL TO DISCREDIT THE DEFENDANT'S ALIBI AT THE TRIAL

  OF THE CAUSE.  BOTH THE DEFENDANT AND THE PROSECUTING ATTORNEY

  SHALL BE UNDER A CONTINUING DUTY TO PROMPTLY DISCLOSE THE NAMES

  AND ADDRESSES OF ADDITIONAL WITNESSES WHICH COME TO THE ATTENTION

  OF EITHER PARTY SUBSEQUENT TO FILING THEIR RESPECTIVE WITNESS

  LISTS AS PROVIDED IN THIS RULE.  IF A DEFENDANT FAILS TO FILE AND

  SERVE A COPY OF SUCH NOTICE AS HEREIN REQUIRED, THE COURT MAY

EXCLUDE EVIDENCE OFFERED BY SUCH DEFENDANT FOR THE PURPOSE OF

  PROVING AN ALIBI, EXCEPT THE TESTIMONY OF THE DEFENDANT HIMSELF. 

  IF SUCH NOTICE IS GIVEN BY A DEFENDANT, THE COURT MAY EXCLUDE THE

  TESTIMONY OF ANY WITNESS OFFERED BY THE DEFENDANT FOR THE PURPOSE

  OF PROVING AN ALIBI IF THE NAME AND ADDRESS OF SUCH WITNESS AS

  PARTICULARLY AS IS KNOWN TO DEFENDANT OR HIS ATTORNEY IS NOT

  STATED IN SUCH NOTICE.  IF THE PROSECUTING ATTORNEY FAILS TO FILE

  AND SERVE A COPY OF THE DEFENDANT OF A LIST OF WITNESSES AS

HEREIN PROVIDED, THE COURT MAY EXCLUDE EVIDENCE OFFERED BY THE

  STATE IN REBUTTAL TO THE DEFENDANT'S ALIBI EVIDENCE.  IF SUCH

  NOTICE IS GIVEN BY THE PROSECUTING ATTORNEY, THE COURT MAY

  EXCLUDE THE TESTIMONY OF ANY WITNESS OFFERED BY THE PROSECUTING

  ATTORNEY FOR THE PURPOSE OF REBUTTING THE DEFENSE OF ALIBI IF THE

  NAME AND ADDRESS OF SUCH WITNESS AS PARTICULARLY AS IS KNOWN TO

  THE PROSECUTING ATTORNEY IS NOT STATED IN SUCH NOTICE.  FOR GOOD

  CAUSE SHOWN THE COURT MAY WAIVE THE REQUIREMENTS OF THIS RULE." 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I JOIN FULLY IN MR. JUSTICE WHITE'S OPINION FOR THE COURT.  I SEE AN
ADDED BENEFIT TO THE NOTICE-OF-ALIBI RULE IN THAT IT WILL SERVE
IMPORTANT FUNCTIONS BY WAY OF DISPOSING OF CASES WITHOUT TRIAL IN
APPROPRIATE CIRCUMSTANCES-- A MATTER OF CONSIDERABLE IMPORTANCE WHEN
COURTS, PROSECUTION OFFICES, AND LEGAL AID AND DEFENDER AGENCIES ARE
VASTLY OVERWORKED.  THE PROSECUTOR UPON RECEIVING NOTICE WILL, OF
COURSE, INVESTIGATE PROSPECTIVE ALIBI WITNESSES.  IF HE FINDS THEM
RELIABLE AND UNIMPEACHABLE HE WILL DOUBTLESS RE-EXAMINE HIS ENTIRE CASE
AND THIS PROCESS WOULD VERY LIKELY LEAD TO DISMISSAL OF THE CHARGES. 
IN TURN HE MIGHT BE OBLIGED TO DETERMINE WHY FALSE CHARGES WERE
INSTITUTED AND WHERE THE BREAKDOWN OCCURRED IN THE EXAMINATION OF
EVIDENCE THAT LED TO A CHARGE.     ON THE OTHER HAND, INQUIRY INTO A
CLAIMED ALIBI DEFENSE MAY REVEAL IT TO BE CONTRIVED AND FABRICATED AND
THE WITNESSES ACCORDINGLY SUBJECT TO IMPEACHMENT OR OTHER ATTACK.  IN
THIS SITUATION DEFENSE COUNSEL WOULD BE OBLIGED TO RE-EXAMINE HIS CASE
AND, IF HE FOUND HIS CLIENT HAS PROPOSED THE USE OF FALSE TESTIMONY,
EITHER SEEK TO WITHDRAW FROM THE CASE OR TRY TO PERSUADE HIS CLIENT TO
ENTER A PLEA OF GUILTY, POSSIBLY BY PLEA DISCUSSIONS WHICH COULD LEAD
TO DISPOSITION ON A LESSER CHARGE. 

IN EITHER CASE THE ENDS OF JUSTICE WILL HAVE BEEN SERVED AND THE
PROCESSES EXPEDITED.  THESE ARE THE LIKELY CONSEQUENCES OF AN ENLARGED
AND TRULY RECIPROCAL PRETRIAL DISCLOSOURE OF EVIDENCE AND THE MOVE AWAY
FROM THE "SPORTING CONTEST" IDEA OF CRIMINAL JUSTICE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING
IN PART AND DISSENTING IN PART. 

THE COURT TODAY HOLDS THAT A STATE CAN, CONSISTENTLY WITH THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION, TRY A DEFENDANT IN A
CRIMINAL CASE WITH A JURY OF SIX MEMBERS.  I AGREE WITH THAT DECISION
FOR SUBSTANTIALLY THE SAME REASONS GIVEN BY THE COURT.  MY BROTHER
HARLAN, HOWEVER, CHARGES THAT THE COURT'S DECISION ON THIS POINT IS
EVIDENCE THAT THE "INCORPORATION DOCTRINE," THROUGH WHICH THE SPECIFIC
PROVISIONS OF THE BILL OF RIGHTS ARE MADE FULLY APPLICABLE TO THE
STATES UNDER THE SAME STANDARDS APPLIED IN FEDERAL COURTS /1/  WILL
SOMEHOW RESULT IN A "DILUTION" OF THE PROTECTIONS REQUIRED BY THOSE
PROVISIONS.  HE ASSERTS THAT THIS COURT'S DESIRE TO RELIEVE THE STATES
FROM THE RIGOROUS REQUIREMENTS OF THE BILL OF RIGHTS IS BOUND TO CAUSE
RE-EXAMINATION AND MODIFICATION OF PRIOR DECISIONS INTERPRETING THOSE
PROVISIONS AS APPLIED IN FEDERAL COURTS IN ORDER SIMULTANEOUSLY TO
APPLY THE PROVISIONS EQUALLY TO THE STATE AND FEDERAL GOVERNMENTS AND
TO AVOID UNDUE RESTRICTIONS ON THE STATES.  THIS ASSERTION FINDS NO
SUPPORT IN TODAY'S DECISION OR ANY OTHER DECISION OF THIS COURT.  WE
HAVE EMPHATICALLY "REJECTED THE NOTION THAT THE FOURTEENTH AMENDMENT
APPLIES TO THE STATES ONLY A 'WATERED-DOWN, SUBJECTIVE VERSION OF THE
INDIVDUAL GUARANTEES OF THE BILL OF RIGHTS.'"  MALLOY V. HOGAN, 378
U.S. 1, 10-11 (1964).  TODAY'S DECISION IS IN NO WAY ATTRIBUTABLE TO
ANY DESIRE TO DILUTE THE SIXTH AMENDMENT IN ORDER MORE EASILY TO APPLY
IT TO THE STATES, BUT FOLLOWS SOLELY AS A NECESSARY CONSEQUENCE OF OUR
DUTY TO RE-EXAMINE PRIOR DECISIONS TO REACH THE CORRECT CONSTITUTIONAL
MEANING IN EACH CASE.  THE BROAD IMPLICATIONS IN EARLY CASES INDICATING
THAT ONLY A BODY OF 12 MEMBERS COULD SATISFY THE SIXTH AMENDMENT
REQUIREMENT AROSE IN SITUATIONS WHERE THE ISSUE WAS NOT SQUARELY
PRESENTED AND WERE BASED, IN MY OPINION, ON AN IMPROPER INTERPRETATION
OF THAT AMENDMENT.  HAD THE QUESTION PRESENTED HERE ARISEN IN A FEDERAL
COURT BEFORE OUR DECISION IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968),
THIS COURT WOULD STILL, IN MY VIEW, HAVE REACHED THE RESULT ANNOUNCED
TODAY.  IN MY OPINION THE DANGER OF DILUTING THE BILL OF RIGHTS
PROTECTIONS LIES NOT IN THE "INCORPORATION DOCTRINE," BUT IN THE "SHOCK
THE CONSCIENCE" TEST ON WHICH MY BROTHER HARLAN WOULD RELY INSTEAD-- A
TEST WHICH DEPENDS, NOT ON THE LANGUAGE OF THE CONSTITUTION, BUT SOLELY
ON THE VIEWS OF A MAJORITY OF THE COURTS AS TO WHAT IS "FAIR" AND
"DECENT." 

THE COURT ALSO HOLDS THAT A STATE CAN REQUIRE A DEFENDANT IN A
CRIMINAL CASE TO DISCLOSE IN ADVANCE OF TRIAL THE NATURE OF HIS ALIBI
DEFENSE AND GIVEN THE NAMES AND ADDRESSES OF WITNESSES HE WILL CALL TO
SUPPORT THAT DEFENSE.  THIS REQUIREMENT, THE MAJORITY SAYS, DOES NOT
VIOLATE THE FIFTH AMENDMENT PROHIBITION AGAINST COMPELLING A CRIMINAL
DEFENDANT TO BE A WITNESS AGAINST HIMSELF.  ALTHOUGH THIS CASE ITSELF
INVOLVES ONLY A NOTICE-OF-ALIBI PROVISION, IT IS CLEAR THAT THE
DECISION MEANS THAT A STATE CAN REQUIRE A DEFENDANT TO DISCLOSE IN
ADVANCE OF TRIAL ANY AND ALL INFORMATION HE MIGHT POSSIBLY USE TO
DEFEND HIMSELF AT TRIAL.  THIS DECISION, IN MY VIEW, IS A RADICAL AND
DANGEROUS DEPARTURE FROM THE HISTORICAL AND CONSTITUTIONALLY GUARANTEED
RIGHT OF A DEFENDANT IN A CRIMINAL CASE TO REMAIN COMPLETELY SILENT,
REQUIRING THE STATE TO PROVE ITS CASE WITHOUT ANY ASSISTANCE OF ANY
KIND FROM THE DEFENDANT HIMSELF. 

        I 

THE CORE OF THE MAJORITY'S DECISION IS AN ASSUMPTION THAT COMPELLING
A DEFENDANT TO GIVE NOTICE OF AN ALIBI DEFENSE BEFORE A TRIAL IS NO
DIFFERENT FROM REQUIRING A DEFENDANT, AFTER THE STATE HAS PRODUCED THE
EVIDENCE AGAINST HIM AT TRIAL, TO PLEAD ALIBI BEFORE THE JURY RETIRES
TO CONSIDER THE CASE.  THIS ASSUMPTION IS CLEARLY REVEALED BY THE
STATEMENT THAT "THE PRESSURES THAT BEAR ON (A DEFENDANT'S) PRE-TRIAL
DECISION ARE OF THE SAME NATURE AS THOSE THAT WOULD INDUCE HIM TO CALL
ALIBI WITNESSES AS THE TRIAL:  THE FORCE OF HISTORICAL FACT BEYOND BOTH
HIS AND THE STATE'S CONTROL AND THE STRENGTH OF THE STATE'S CASE BUILT
ON THESE FACTS."  ANTE, AT 85.  THAT STATEMENT IS PLAINLY AND SIMPLY
WRONG AS A MATTER OF FACT AND LAW, AND THE COURT'S HOLDING BASED ON
THAT STATEMENT IS A COMPLETE MISUNDERSTANDING OF THE PROTECTIONS
PROVIDED FOR CRIMINAL DEFENDANTS BY THE FIFTH AMENDMENT AND OTHER
PROVISIONS OF THE BILL OF RIGHTS.  /2/

        A 

WHEN A DEFENDANT IS REQUIRED TO INDICATE WHETHER HE MIGHT PLEAD
ALIBI IN ADVANCE OF TRIAL, HE FACES A VASTLY DIFFERENT DECISION FROM
THAT FACED BY ONE WHO CAN WAIT UNTIL THE STATE HAS PRESENTED THE CASE
AGAINST HIM BEFORE MAKING UP HIS MIND.  BEFORE TRIAL THE DEFENDANT
KNOWS ONLY WHAT THE STATE'S CASE MIGHT BE.  BEFORE TRIAL THERE IS NO
SUCH THING AS THE "STRENGTH OF THE STATE'S CASE"; THERE IS ONLY A RANGE
OF POSSIBLE CASES.  AT THAT TIME THERE IS NO CERTAINTY AS TO WHAT KIND
OF CASE THE STATE WILL ULTIMATELY BE ABLE TO PROVE AT TRIAL.  THEREFORE
ANY APPRAISAL OF THE DESIRABILITY OF PLEADING ALIBI WILL BE BESET WITH
GUESSWORK AND GAMBLING FAR GREATER THAN THAT ACCOMPANYING THE DECISION
AT THE TRIAL ITSELF.  ANY LAWYER WHO HAS ACTUALLY TRIED A CASE KNOWS
THAT, REGARDLESS OF THE AMOUNT OF PRETRIAL PREPARATION, A CASE LOOKS
FAR DIFFERENT WHEN IT IS ACTUALLY BEING TRIED THAN WHEN IT IS ONLY
BEING THOUGHT ABOUT. 

THE FLORIDA SYSTEM, AS INTERPRETED BY THE MAJORITY, PLAYS UPON THIS
INHERENT UNCERTAINTY IN PREDICTING THE POSSIBLE STRENGTH OF THE STATE'S
CASE IN ORDER EFFECTIVELY TO COERCE DEFENDANTS INTO DISCLOSING AN ALIBI
DEFENSE THAT MAY NEVER BE ACTUALLY USED.  UNDER THE FLORIDA RULE, A
DEFENDANT WHO MIGHT PLEAD ALIBI MUST, AT LEAST 10 DAYS BEFORE THE DATE
OF TRIAL, TELL THE PROSECUTING ATTORNEY THAT HE MIGHT CLAIM AN ALIBI OR
ELSE THE DEFENDANT FACES THE REAL THREAT THAT HE MAY BE COMPLETELY
BARRED FROM PRESENTING WITNESSES IN SUPPORT OF HIS ALIBI.  ACCORDING TO
THE COURT, HOWEVER, IF HE GIVES THE REQUIRED NOTICE AND LATER CHANGES
HIS MIND "(NOTHING IN SUCH A RULE REQUIRES (HIM) TO RELY ON AN ALIBI OR
PREVENTS HIM FROM ABANDONING THE DEFENSE; THESE MATTERS ARE LEFT TO HIS
UNFETTERED CHOICE."  ANTE, AT 84.  THUS IN MOST SITUATIONS DEFENDANTS
WITH ANY POSSIBLE THOUGHT OF PLEADING ALIBI ARE IN EFFECT COMPELLED TO
DISCLOSE THEIR INTENTIONS IN ORDER TO PRESERVE THE POSSIBILITY OF LATER
RAISING THE DEFENSE AT TRIAL.  NECESSARILY FEW DEFENDANTS AND THEIR
LAWYERS WILL BE WILLING TO RISK THE LOSS OF THAT POSSIBILITY BY NOT
DISCLOSING THE ALIBI.  CLEARLY THE PRESSURES ON DEFENDANTS TO PLEAD AN
ALIBI CREATED BY THIS PROCEDURE ARE NOT ONLY QUITE DIFFERENT FROM THE
PRESSURES OPERATING AT THE TRIAL ITSELF, BUT ARE IN FACT SIGNIFICANTLY
GREATER.  CONTRARY TO THE MAJORITY'S ASSERTION, THE PRETRIAL DECISION
CANNOT BE ANALYZED AS SIMPLY A MATTER OF "TIMING," INFLUENCED BY THE
SAME FACTORS OPERATING AT THE TRIAL ITSELF. 

THE COURT APPARENTLY ALSO ASSUMED THAT A DEFENDANT WHO HAS GIVEN THE
REQUIRED NOTICE CAN ABANDON HIS ALIBI WITHOUT HURTING HIMSELF.  SUCH AN
ASSUMPTION IS IMPLICIT IN AND NECESSARY FOR THE MAJORITY'S ARGUMENT
THAT THE PRETRIAL DECISION IS NO DIFFERENT FROM THAT AT THE TRIAL
ITSELF.  I, HOWEVER, CANNOT SO LIGHTLY ASSUME THAT PRETRIAL NOTICE WILL
HAVE NO ADVERSE EFFECTS ON A DEFENDANT WHO LATER DECIDES TO FORGO SUCH
A DEFENSE.  NECESSARILY THE DEFENDANT WILL HAVE GIVEN THE PROSECUTOR
THE NAMES OF PERSONS WHO MAY HAVE SOME KNOWLEDGE ABOUT THE DEFENDANT
HIMSELF OR HIS ACTIVITIES.  NECESSARILY THE PROSECUTOR WILL HAVE EVERY
INCENTIVE TO QUESTION THESE PERSONS FULLY, AND IN DOING SO HE MAY
DISCOVER NEW LEADS OR EVIDENCE.  UNDOUBTEDLY THERE WILL BE SITUATIONS
IN WHICH THE STATE WILL SEEK TO USE SUCH INFORMATION-- INFORMATION IT
WOULD PROBABLY NEVER HAVE OBTAINED BUT FOR THE DEFENDANT'S COERCED
COOPERATION. 

        B 

IT IS UNNECESSARY FOR ME, HOWEVER, TO ENGAGE IN ANY SUCH
INTELLECTUAL GYMNASTICS CONCERNING THE PRACTICAL EFFECTS OF THE NOTICE
OF-ALIBI PROCEDURE, BECAUSE THE FIFTH AMENDMENT ITSELF CLEARLY PROVIDES
THAT "(NO PERSON . . . SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF."  IF WORDS ARE TO BE GIVEN THEIR PLAIN AND
OBVIOUS MEANING, THAT PROVISION, IN MY OPINION, STATES THAT A CRIMINAL
DEFENDANT CANNOT BE REQUIRED TO GIVE EVIDENCE, TESTIMONY, OR ANY OTHER
ASSISTANCE TO THE STATE TO AID IT IN CONVICTING HIM OF CRIME.  CF.
SCHMERBER V. CALIFORNIA, 384 U.S. 757, 733 (1966) (BLACK, J.,
DISSENTING).  THE FLORIDA NOTICE-OF-ALIBI RULE IN MY OPINION IS A
PATENT VIOLATION OF THAT CONSTITUTIONAL PROVISION BECAUSE IT REQUIRES A
DEFENDANT TO DISCLOSE INFORMATION TO THE STATE SO THAT THE STATE CAN
USE THAT INFORMATION TO DESTROY HIM.  IT SEEMS TO ME AT LEAST SLIGHTLY
INCREDIBLE TO SUGGEST THAT THIS PROCEDURE MAY HAVE SOME BENEFICIAL
EFFECTS FOR DEFENDANTS.  THERE IS NO NEED TO ENCOURAGE DEFENDANTS TO
TAKE ACTIONS THEY THINK WILL HELP THEM.  THE FEAR OF CONVICTION AND THE
SUBSTANTIAL COST OR INCONVENIENCE RESULTING FROM CRIMINAL PROSECUTIONS
ARE MORE THAN SUFFICIENT INCENTIVES TO MAKE DEFENDANTS WANT TO HELP
THEMSELVES.  IF A DEFENDANT THINKS THAT MAKING DISCLOSURE OF AN ALIBI
BEFORE TRIAL IS IN HIS BEST INTERESTS, HE WILL OBVIOUSLY DO SO.  AND
THE ONLY TIME THE STATE NEEDS THE COMPULSION PROVIDED BY THIS PROCEDURE
IS WHEN THE DEFENDANT HAS DECIDED THAT SUCH DISCLOSURE IS LIKELY TO
HURT HIS CASE. 

IT IS NO ANSWER TO THIS ARGUMENT TO SUGGEST THAT THE FIFTH AMENDMENT
AS SO INTERPRETED WOULD GIVE THE DEFENDANT AN UNFAIR ELEMENT OF
SURPRISE TURNING A TRIAL INTO A "POKER GAME" OR "SPORTING CONTEST," FOR
THAT TACTICAL ADVANTAGE TO THE DEFENDANT IS INHERENT IN THE TYPE OF
TRIAL REQUIRED BY OUR BILL OF RIGHTS.  THE FRAMERS WERE WELL AWARE OF
THE AWESOME INVESTIGATIVE AND PROSECUTORIAL POWERS OF GOVERNMENT AND IT
WAS IN ORDER TO LIMIT THOSE POWERS THAT THEY SPELLED OUT IN DETAIL IN
THE CONSTITUTION THE PROCEDURE TO BE FOLLOWED IN CRIMINAL TRIALS.  A
DEFENDANT, THEY SAID, IS ENTITLED TO NOTICE OF THE CHARGES AGAINST HIM,
TRIAL BY JURY, THE RIGHT TO COUNSEL FOR HIS DEFENSE, THE RIGHT TO
CONFRONT AND CROSS-EXAMINE WITNESSES, THE RIGHT TO CALL WITNESSES IN
HIS OWN BEHALF, AND THE RIGHT NOT TO BE A WITNESS AGAINST HIMSELF.  ALL
OF THESE RIGHTS ARE DESIGNED TO SHIELD THE DEFENDANT AGAINST STATE
POWER.  NONE ARE DESIGNED TO MAKE CONVICTIONS EASIER AND TAKEN TOGETHER
THEY CLEARLY INDICATE THAT IN OUR SYSTEM THE ENTIRE BURDEN OF PROVING
CRIMINAL ACTIVITY RESTS ON THE STATE.  THE DEFENDANT, UNDER OUR
CONSTITUTION, NEED NOT DO ANYTHING AT ALL TO DEFEND HIMSELF, AND
CERTAINLY HE CANNOT BE REQUIRED TO HELP CONVICT HIMSELF.  RATHER HE HAS
AN ABSOLUTE, UNQUALIFIED RIGHT TO COMPEL THE STATE TO INVESTIGATE ITS
OWN CASE, FIND ITS OWN WITNESSES, PROVE ITS OWN FACTS, AND CONVINCE THE
JURY THROUGH ITS OWN RESOURCES.  THROUGHOUT THE PROCESS THE DEFENDANT
HAS A FUNDAMENTAL RIGHT TO REMAIN SILENT, IN EFFECT CHALLENGING THE
STATE AT EVERY POINT TO:  "PROVE IT." 

THE BILL OF RIGHTS THUS SETS OUT THE TYPE OF CONSTITUTIONALLY
REQUIRED SYSTEM THAT THE STATE MUST FOLLOW IN ORDER TO CONVICT
INDIVIDUALS OF CRIME.  THAT SYSTEM REQUIRES THAT THE STATE ITSELF MUST
BEAR THE ENTIRE BURDEN WITHOUT ANY ASSISTANCE FROM THE DEFENDANT.  THIS
REQUIREMENT IS CLEARLY INDICATED IN THE FIFTH AMENDMENT ITSELF, BUT IT
IS EQUALLY APPARENT WHEN ALL THE SPECIFIC PROVISIONS OF THE BILL OF
RIGHTS RELATING TO CRIMINAL PROSECUTIONS ARE CONSIDERED TOGETHER.  AND
WHEN A QUESTION CONCERNING THE CONSTITUTIONALITY OF SOME ASPECT OF
CRIMINAL PROCEDURE ARISES, THIS COURT MUST CONSIDER ALL THOSE
PROVISIONS AND INTERPRET THEM TOGETHER.  THE FIFTH AMENDMENT
PROHIBITION AGAINST COMPELLING A DEFENDANT TO BE A WITNESS AGAINST
HIMSELF IS NOT AN ISOLATED, DISTINCT PROVISION.  IT IS PART OF A SYSTEM
OF CONSTITUTIONALLY REQUIRED PROCEDURES, AND ITS TRUE MEANING CAN BE
SEEN ONLY IN LIGHT OF ALL THOSE PROVISIONS.  "STRICT CONSTRUCTION" OF
THE WORDS OF THE CONSTITUTION DOES NOT MEAN THAT THE COURT CAN LOOK
ONLY TO ONE PHRASE, CLAUSE, OR SENTENCE IN THE CONSTITUTION AND EXPECT
TO FIND THE RIGHT ANSWER.  EACH PROVISION HAS CLEAR AND DEFINITE
MEANING, AND VARIOUS PROVISIONS CONSIDERED TOGETHER MAY HAVE AN EQUALLY
CLEAR AND DEFINITE MEANING.  IT IS ONLY THROUGH SENSITIVE ATTENTION TO
THE SPECIFIC WORDS, THE CONTEXT IN WHICH THEY ARE USED, AND THE HISTORY
SURROUNDING THE ADOPTION OF THOSE PROVISIONS THAT THE TRUE MEANING OF
THE CONSTITUTION CAN BE DISCERNED.     THIS CONSTITUTIONAL RIGHT TO
REMAIN ABSOLUTELY SILENT CANNOT BE AVOIDED BY SUPERFICIALLY ATTRACTIVE
ANALOGIES TO ANY SO-CALLED "COMPULSION" INHERENT IN THE TRIAL ITSELF
THAT MAY LEAD A DEFENDANT TO PUT ON EVIDENCE IN HIS OWN DEFENSE. 
OBVIOUSLY THE CONSTITUTION CONTEMPLATES THAT A DEFENDANT CAN BE
"COMPELLED" TO STAND TRIAL, AND OBVIOUSLY THERE WILL BE TIMES WHEN THE
TRIAL PROCESS ITSELF WILL REQUIRE THE DEFENDANT TO DO SOMETHING IN
ORDER TO TRY TO AVOID A CONVICTION.  BUT NOTHING IN THE CONSTITUTION
PERMITS THE STATE TO ADD TO THE NATURAL CONSEQUENCES OF A TRIAL AND
COMPEL THE DEFENDANT IN ADVANCE OF TRIAL TO PARTICIPATE IN ANY WAY IN
THE STATE'S ATTEMPT TO CONDEMN HIM.     A CRIMINAL TRIAL IS IN PART A
SEARCH FOR TRUTH.  BUT IT IS ALSO A SYSTEM DESIGNED TO PROTECT
"FREEDOM" BY INSURING THAT NO ONE IS CRIMINALLY PUNISHED UNLESS THE
STATE HAS FIRST SUCCEEDED IN THE ADMITTEDLY DIFFICULT TASK OF
CONVINCING A JURY THAT THE DEFENDANT IS GUILTY.  THAT TASK IS MADE MORE
DIFFICULT BY THE BILL OF RIGHTS, AND THE FIFTH AMENDMENT MAY BE ONE OF
THE MOST DIFFICULT OF THE BARRIERS TO SURMOUNT.  THE FRAMERS DECIDED
THAT THE BENEFITS TO BE DERIVED FROM THE KIND OF TRIAL REQUIRED BY THE
BILL OF RIGHTS WERE WELL WORTH ANY LOSS IN "EFFICIENCY" THAT RESULTED. 
THEIR DECISION CONSTITUTES THE FINAL WORD ON THE SUBJECT, ABSENT SOME
CONSTITUTIONAL AMENDMENT.  THAT DECISION SHOULD NOT BE SET ASIDE AS THE
COURT DOES TODAY. 

        II 

ON THE SURFACE THIS CASE INVOLVES ONLY A NOTICE-OF-ALIBI PROVISION,
BUT IN EFFECT THE DECISION OPENS THE WAY FOR A PROFOUND CHANGE IN ONE
OF THE MOST IMPORTANT TRADITIONAL SAFEGUARDS OF A CRIMINAL DEFENDANT. 
THE RATIONALE OF TODAY'S DECISION IS IN NO WAY LIMITED TO ALIBI
DEFENSES, OR ANY OTHER TYPE OR CLASSSIFICATION OF EVIDENCE.  THE THEORY
ADVANCED GOES AT LEAST SO FAR AS TO PERMIT THE STATE TO OBTAIN UNDER
THREAT OF SANCTION COMPLETE DISCLOSURE BY THE DEFENDANT IN ADVANCE OF
TRIAL OF ALL EVIDENCE, TESTIMONY, AND TACTICS HE PLANS TO USE AT THAT
TRIAL.  IN EACH CASE THE JUSTIFICATION WILL BE THAT THE RULE AFFECTS
ONLY THE "TIMING" OF THE DISCLOSURE, AND NOT THE SUBSTANTIVE DECISION
ITSELF.  THIS INEVITABILITY IS CLEARLY REVEALED BY THE CITATION TO
JONES V. SUPERIOR COURT, 58 CAL.2D 56, 372 P.2D 919 (1962), ANTE, AT 83
N. 13.  IN THAT CASE, THE THEORY OF WHICH THE COURT TODAY ADOPTS IN ITS
ENTIRETY, A DEFENDANT IN A RAPE CASE DISCLOSED THAT HE WOULD RELY IN
PART ON A DEFENSE OF IMPOTENCY.  THE PROSECUTOR SUCCESSFULLY OBTAINED
AN ORDER COMPELLING THE DEFENDANT TO REVEAL THE NAMES AND ADDRESSES OF
ANY DOCTORS HE CONSULTED AND THE MEDICAL REPORTS OF ANY EXAMINATIONS
RELATING TO THE CLAIMED INCAPACITY.  THAT ORDER WAS UPHELD BY THE
HIGHEST COURT IN CALIFORNIA.  THERE WAS NO "RULE" OR STATUTE TO SUPPORT
SUCH A DECISION, ONLY THE CALIFORNIA SUPREME COURT'S SENSE OF FAIRNESS,
JUSTICE, AND JUDICIAL EFFICIENCY.  THE MAJORITY THERE FOUND NO BARRIER
TO THE JUDICIAL CREATION OF PRETRIAL DISCOVERY BY THE STATE AGAINST THE
DEFENDANT, LEAST OF ALL A BARRIER RAISED BY ANY CONSTITUTIONAL
PROHIBITION ON COMPELLING THE DEFENDANT TO BE A WITNESS AGAINST
HIMSELF. 

THE DANGEROUS IMPLICATIONS OF THE JONES RATIONALE ADOPTED TODAY ARE
NOT, HOWEVER, LIMITED TO THE DISCLOSURE OF EVIDENCE THAT THE DEFENDANT
HAS ALREADY DECIDED HE WILL USE AT TRIAL.  IN STATE V. GROVE, 65
WASH.2D 525, 398 P.2D 170 (1965), THE WASHINGTON SUPREME COURT, RELYING
ON JONES, HELD THAT A DEFENDANT IN A MURDER TRIAL COULD BE COMPELLED TO
PRODUCE A LETTER HE HAD WRITTEN HIS WIFE ABOUT THE ALLEGED CRIME, EVEN
THOUGH HE HAD NO THOUGHT AT ALL OF USING THAT EVIDENCE IN HIS OWN
BEHALF.  THESE CASES ARE SUFFICIENT EVIDENCE OF THE INCH-BY-INCH, CASE
BY-CASE PROCESS BY WHICH THE RATIONALE OF TODAY'S DECISION CAN BE USED
TO TRANSFORM RADICALLY OUR SYSTEM OF CRIMINAL JUSTICE INTO A PROCESS
REQUIRING THE DEFENDANT TO ASSIST THE STATE IN CONVICTING HIM, OR BE
PUNISHED FOR FAILING TO DO SO. 

THERE IS A HINT IN THE STATE'S BRIEF IN THIS CASE-- AS WELL AS, I
FEAR, IN THE COURT'S OPINION-- OF THE EVER-RECURRING SUGGESTION THAT
THE TEST OF CONSTITUTIONALITY IS THE TEST OF "FAIRNESS," "DECENCY," OR
IN SHORT THE COURT'S OWN VIEWS OF WHAT IS BEST."  OCCASIONALLY THIS
TEST EMERGES IN DISGUISE AS AN INTELLECTUALLY SATISFYING "DISTINCTION"
OR "ANALOGY" DESIGNED TO COVER UP A DECISION BASED ON THE WISDOM OF A
PROPOSED PROCEDURE RATHER THAN ITS CONFORMITY WITH THE COMMANDS OF THE
CONSTITUTION.  SUCH A COURSE, IN MY VIEW, IS INVOLVED IN THIS CASE. 
THIS DECISION IS ONE MORE STEP AWAY FROM THE WRITTEN CONSTITUTION AND A
RADICAL DEPARTURE FROM THE SYTEM OF CRIMINAL JUSTICE THAT HAS PREVAILED
IN THIS COUNTRY.  COMPELLING A DEFENDANT IN A CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF IN ANY WAY, INCLUDING THE USE OF THE SYSTEM OF
PRETRIAL DISCOVERY APPROVED TODAY, WAS UNKNOWN IN ENGLISH LAW, EXCEPT
FOR THE UNLAMENTED PROCEEDINGS IN THE STAR CHAMBER COURTS-- THE TYPE OF
PROCEEDINGS THE FIFTH AMENDMENT WAS DESIGNED TO PREVENT.  FOR
PRACTICALLY THE FIRST 150 YEARS OF THIS NATION'S HISTORY NO STATE
CONSIDERED ADOPTING SUCH PROCEDURES COMPELLING A CRIMINAL DEFENDANT TO
HELP CONVICT HIMSELF, ALTHOUGH HISTORY DOES NOT INDICATE THAT OUR
ANCESTORS WERE ANY LESS INTELLIGENT OR SOLICITOUS OF HAVING A FAIR AND
EFFICIENT SYSTEM OF CRIMINAL JUSTICE THAN WE ARE.  HISTORY DOES
INDICATE THAT PERSONS WELL FAMILIAR WITH THE DANGERS OF ARBITRARY AND
OPPRESSIVE USE OF THE CRIMINAL PROCESS WERE DETERMINED TO LIMIT SUCH
DANGERS FOR THE PROTECTION OF EACH AND EVERY INHABITANT OF THIS
COUNTRY.  THEY WERE WELL AWARE THAT ANY INDIVIDUAL MIGHT SOME DAY BE
SUBJECTED TO CRIMINAL PROSECUTION, AND IT WAS IN ORDER TO PROTECT THE
FREEDOM OF EACH OF US THAT THEY RESTRICTED THE GOVERNMENT'S ABILITY TO
PUNISH OR IMPRISON ANY OF US.  YET IN SPITE OF THE HISTORY OF
OPPRESSION THAT PRODUCED THE BILL OF RIGHTS AND THE STRONG RELUCTANCE
OF OUR GOVERNMENTS TO COMPEL A CRIMINAL DEFENDANT TO ASSIST IN HIS OWN
CONVICTION, THE COURT TODAY REACHES OUT TO EMBRACE AND SANCTIFY AT THE
FIRST OPPORTUNITY A MOST DANGEROUS DEPARTURE FROM THE CONSTITUTION AND
THE TRADITIONAL SAFEGUARDS AFFORDED PERSONS ACCUSED OF CRIME.  I CANNOT
ACCEPT SUCH A RESULT AND MUST EXPRESS MY MOST EMPHATIC DISAGREEMENT AND
DISSENT. 

/1/  SEE CASES CITED IN IN RE WINSHIP, 397 U.S. 358, 382 N. 11
(1970) (BLACK, J., DISSENTING). 

/2/  AS I HAVE FREQUENTLY STATED, IN MY OPINION THE FOURTEENTH
AMENDMENT WAS IN PART ADOPTED IN ORDER TO MAKE THE PROVISIONS OF THE
BILL OF RIGHTS FULLY APPLICABLE TO THE STATES.  SEE, E.G., ADAMSON V.
CALIFORNIA, 332 U.S. 46, 68 (1947) (DISSENTING OPINION).  THIS COURT
HAS NOW HELD ALMOST ALL THESE PROVISIONS DO APPLY TO THE STATES AS WELL
AS THE FEDERAL GOVERNMENT, INCLUDING THE FIFTH AMENDMENT PROVISION
INVOLVED IN THIS CASE.  SEE MALLOY V. HOGAN, 378 U.S. 1 (1964); CASES
CITED IN IN RE WINSHIP, 397 U.S. 358, 382 N. 11 (1970) (BLACK, J.,
DISSENTING).  WHEN THIS COURT IS CALLED UPON TO CONSIDER THE MEANING OF
A PARTICULAR PROVISION OF THE BILL OF RIGHTS-- WHETHER IN A CASE
ARISING FROM A STATE COURT OR A FEDERAL ONE-- IT IS NECESSARY TO LOOK
TO THE SPECIFIC LANGUAGE OF THE PROVISION AND THE INTENT OF THE FRAMERS
WHEN THE BILL OF RIGHTS ITSELF WAS ADOPTED.  THIS APPROACH IS
NECESSARY, NOT BECAUSE THE FRAMERS INTENDED THE BILL OF RIGHTS TO APPLY
TO THE STATES WHEN IT WAS PROPOSED IN 1789, BUT BECAUSE THE APPLICATION
OF THOSE PROVISIONS TO THE STATES BY THE FOURTEENTH AMENDMENT REQUIRES
THAT THE ORIGINAL INTENT BE THE GOVERNING CONSIDERATION IN STATE AS
WELL AS FEDERAL CASES. 

MR. JUSTICE MARSHALL, DISSENTING IN PART. 

I JOIN PART I OF THE COURT'S OPINION.  HOWEVER, SINCE I BELIEVE THAT
THE FOURTEENTH AMENDMENT GUARANTEED WILLIAMS A JURY OF 12 TO PASS UPON
THE QUESTION OF HIS GUILT OR INNOCENCE BEFORE HE COULD BE SENT TO
PRISON FOR THE REST OF HIS LIFE, I DISSENT FROM THE AFFIRMANCE OF HIS
CONVICTION. 

I ADHERE TO THE HOLDING OF DUNCAN V. LOUISIANA, 391 U.S. 145, 149
(1968), THAT "(BECAUSE . . . TRIAL BY JURY IN CRIMINAL CASES IS
FUNDAMENTAL TO THE AMERICAN SCHEME OF JUSTICE . . . THE FOURTEENTH
AMENDMENT GUARANTEES A RIGHT OF JURY TRIAL IN ALL CRIMINAL CASES WHICH-
WERE THEY TO BE TRIED IN A FEDERAL COURT-- WOULD COME WITHIN THE SIXTH
AMENDMENT'S GUARANTEE."  AND I AGREE WITH THE COURT THAT THE SAME
"TRIAL BY JURY" IS GUARANTEED TO STATE DEFENDANTS BY THE FOURTEENTH
AMENDMENT AS TO FEDERAL DEFENDANTS BY THE SIXTH.  "ONCE IT IS DECIDED
THAT A PARTICULAR BILL OF RIGHTS GUARANTEE IS 'FUNDAMENTAL TO THE
AMERICAN SCHEME OF JUSTICE' . . . THE SAME CONSTITUTIONAL STANDARDS
APPLY AGAINST BOTH THE STATE AND FEDERAL GOVERNMENTS."  BENTON V.
MARYLAND, 395 U.S. 784, 795 (1969). 

AT THE SAME TIME, I ADHERE TO THE DECISION OF THE COURT IN THOMPSON
V. UTAH, 170 U.S. 343, 349 (1898), THAT THE JURY GUARANTEED BY THE
SIXTH AMENDMENT CONSISTS "OF TWELVE PERSONS, NEITHER MORE NOR LESS." 
AS I SEE IT, THE COURT HAS NOT MADE OUT A CONVINCING CASE THAT THE
SIXTH AMENDMENT SHOULD BE READ DIFFERENTLY THAN IT WAS IN THOMPSON EVEN
IF THE MATTER WERE NOW BEFORE US DE NOVO-- MUCH LESS THAT AN UNBROKEN
LINE OF PRECEDENT GOING BACK OVER 70 YEARS SHOULD BE OVERRULED.  THE
ARGUMENTS MADE BY MR. JUSTICE HARLAN IN PART IB OF HIS OPINION PERSUADE
ME THAT THOMPSON WAS RIGHT WHEN DECIDED AND STILL STATES SOUND
DOCTRINE.  I AM EQUALLY CONVINCED THAT THE REQUIREMENT OF 12 SHOULD BE
APPLIED TO THE STATES. 

MR. JUSTICE HARLAN, DISSENTING IN NO. 188, ANTE, P. 66, AND
CONCURRING IN THE RESULT IN NO. 927. 

IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), THE COURT HELD, OVER MY
DISSENT, JOINED BY MR. JUSTICE STEWART, THAT A STATE CRIMINAL DEFENDANT
IS ENTITLED TO A JURY TRIAL IN ANY CASE WHICH, IF BROUGHT IN A FEDERAL
COURT, WOULD REQUIRE A JURY UNDER THE SIXTH AMENDMENT.  TODAY THE COURT
CONCLUDES, IN NO. 188, BALDWIN V. NEW YORK, THAT NEW YORK CANNOT
CONSTITUTIONALLY PROVIDE THAT MISDEMEANORS CARRYING SENTENCES UP TO ONE
YEAR SHALL BE TRIED IN NEW YORK CITY WITHOUT A JURY.  /1/  AT THE SAME
TIME THE COURT HOLDS IN NO. 927, WILLIAMS V. FLORIDA, THAT FLORIDA'S
SIX-MEMBER-JURY STATUTE SATISFIES THE SIXTH AMENDMENT AS CARRIED TO THE
STATES BY THE DUNCAN HOLDING.  /2/  THE NECESSARY CONSEQUENCE OF THIS
DECISION IS THAT 12-MEMBER JURIES ARE NOT CONSTITUTIONALLY REQUIRED IN
FEDERAL CRIMINAL TRIALS EITHER. 

THE HISTORICAL ARGUMENT BY WHICH THE COURT UNDERTAKES TO JUSTIFY ITS
VIEW THAT THE SIXTH AMENDMENT DOES NOT REQUIRE 12-MEMBER JURIES IS, IN
MY OPINION, MUCH TOO THIN TO MASK THE TRUE THRUST OF THIS DECISION. 
THE DECISION EVINCES, I THINK, A RECOGNITION THAT THE
"INCORPORATIONIST" VIEW OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, WHICH UNDERLAY DUNCAN AND IS NOW CARRIED FORWARD INTO
BLADWIN, MUST BE TEMPERED TO ALLOW THE STATES MORE ELBOW ROOM IN
ORDERING THEIR OWN CRIMINAL SYSTEMS.  WITH THAT MUCH I AGREE.  BUT TO
ACCOMPLISH THIS BY DILUTING CONSTITUTIONAL PROTECTIONS WITHIN THE
FEDERAL SYSTEM ITSELF IS SOMETHING TO WHICH I CANNOT POSSIBLY
SUBSCRIBE.  TEMPERING THE RIGOR OF DUNCAN SHOULD BE DONE FORTHRIGHTLY,
BY FACING UP TO THE FACT THAT AT LEAST IN THIS AREA THE "INCORPORATION"
DOCTRINE DOES NOT FIT WELL WITH OUT FEDERAL STRUCTURE, AND BY THE SAME
TOKEN THAT DUNCAN WAS WRONGLY DECIDED. 

I WOULD SUSTAIN BOTH THE FLORIDA AND NEW YORK STATUTES ON THE
CONSTITUTIONAL PREMISES DISCUSSED IN MY DISSENTING OPINION IN DUNCAN,
391 U.S.,AT 161 ET SEQ. IN TAKING THAT COURSE IN BALDWIN, I CANNOT, IN
A MATTER THAT GOES TO THE VERY PULSE OF SOUND CONSTITUTIONAL
ADJUDICATION, CONSIDER MYSELF CONSTRUCTED BY STARE DECISIS.  /3/ 

ACCORDINGLY, I DISSENT IN NO. 188 AND, AS TO THE JURY ISSUE, CONCUR IN
THE RESULT IN NO. 927.  GIVEN MALLOY V. HOGAN, 378 U.S. 1 (1964), I
JOIN THAT PART OF THE COURT'S OPINION IN NO. 927 RELATING TO THE
FLORIDA "ALIBI" PROCEDURE. 

        I 

AS A PREDICATE FOR MY CONCLUSIONS, IT IS USEFUL TO MAP THE CIRCUITOUS
ROUTE THAT HAS BEEN TAKEN IN ORDER TO REACH THE RESULTS.  IN BOTH
CASES, MORE PATENTLY IN WILLIAMS THAN IN BALDWIN, THE HISTORY OF JURY
TRIAL PRACTICE IN BOTH THE STATE AND FEDERAL SYSTEMS HAS BEEN
INDISCRIMINATELY JUMBLED TOGETHER AS OPPOSED TO THE POINT OF DEPARTURE
HAVING BEEN TAKEN FROM THE LANGUAGE IN WHICH THE FEDERAL GUARANTEE IS
EXPRESSED AND THE HISTORICAL PRECEDENT THAT BRINGS IT TO LIFE.  THE
CONSEQUENCE OF THIS INVERTED APPROACH TO INTERPRETING THE SIXTH
AMENDMENT RESULTS, FORTUITOUSLY, /4/  IN BALDWIN IN A SIXTH AMENDMENT
RULE THAT WOULD BE REACHED UNDER THE CORRECT APPROACH, GIVEN THE
"INCORPORATIONIST" PHILOSOPHY OF DUNCAN, BUT, UNHAPPILY, IMPOSES IT ON
THE ONE JURISDICTION IN THE COUNTRY THAT HAS SEEN FIT TO DO OTHERWISE;
AND IN WILLIAMS RESULTS IN A SIXTH AMENDMENT RULE THAT COULD ONLY BE
REACHED BY STANDING THE CONSTITUTIONAL DIALECTIC ON ITS HEAD. 

        A 

TO THE EXTENT THAT THE PREVAILING OPINION PREMISES ITS CONCLUSIONS
IN THE BALDWIN CASE ON FEDERAL PRECEDENT AND THE COMMON-LAW PRACTICE, I
AGREE THAT THE FEDERAL RIGHT TO JURY TRIAL ATTACHES WHERE AN OFFENSE IS
PUNISHABLE BY AS MUCH AS SIX MONTHS' IMPRISONMENT.  I THINK THIS
FOLLOWS BOTH FROM THE BREADTH OF THE LANGUAGE OF THE SIXTH AMENDMENT,
WHICH PROVIDES FOR A JURY IN "ALL CRIMINAL PROSECUTIONS,"  AND THE
EVIDENCE OF HISTORICAL PRACTICE.  IN THIS REGARD I BELIEVE THAT
CONTEMPORARY USAGE IN THE STATES IS OF LITTLE, IF ANY, SIGNIFICANCE. 
/5/  FOR IF EXCEPTIONS ARE TO BE CREATED OUT OF THE ALL-EMBRACING
LANGUAGE OF THE SIXTH AMENDMENT THEY SHOULD ONLY BE THOSE THAT ARE
ANCHORED IN HISTORY. 

IT IS TO THE DISTINCTION BETWEEN "PETTY" AND "SERIOUS" OFFENSES,
ROOTED IN THE COMMON LAW, THAT THIS COURT HAS LOOKED TO ASCERTAIN THE
METES AND BOUNDS OF THE FEDERAL RIGHT GUARANTEED BY THE SIXTH
AMENDMENT.  SEE DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617 (1937);
SCHICK V. UNITED STATES, 195 U.S. 65 (1904); CALLAN V. WILSON, 127 U.S.
540, 552 (1888).  SINCE THE CONVENTIONAL, IF NOT IMMUTABLE PRACTICE AT
COMMON LAW APPEARS TO HAVE BEEN TO PROVIDE JURIES FOR OFFENSES
PUNISHABLE BY FINES OF MORE THAN 100 POUNDS OR SENTENCES TO HARD LABOR
OF MORE THAN SIX MONTHS IN PRISON, SEE FRANKFURTER & CORCORAN, PETTY
FEDERAL OFFENSES AND THE CONSTITUTIONAL GUARANTY OF TRIAL BY JURY, 39
HARV.L.REV.  917 (1926), /6/  I THINK IT APPROPRIATE TO DRAW THE LINE
AT SIX MONTHS IN FEDERAL CASES, /7/  ALTHOUGH, FOR REASONS TO FOLLOW, I
WOULD NOT ENCUMBER THE STATES BY THIS REQUIREMENT.  /8/             B 

IN WILLIAMS THE COURT STRANGELY DOES AN ABOUT-FACE.  RATHER THAN
BIND THE STATES BY THE HITHERTO UNDEVIATING AND UNQUESTIONED FEDERAL
PRACTICE OF 12-MEMBER JURIES, THE COURT HOLDS, BASED ON A POLL OF STATE
PRACTICE, THAT A SIX-MAN JURY SATISFIES THE GUARANTEE OF A TRIAL BY
JURY IN A FEDERAL CRIMINAL SYSTEM AND CONSEQUENTLY CARRIES OVER TO THE
STATES.  THIS IS A CONSTITUTIONAL RENVOI.  WITH ALL RESPECT, I CONSIDER
THAT BEFORE TODAY IT WOULD HAVE BEEN UNTHINKABLE TO SUGGEST THAT THE
SIXTH AMENDMENT'S RIGHT TO A TRIAL BY JURY IS SATISFIED BY A JURY OF
SIX, OR LESS, AS IS LEFT OPEN BY THE COURT'S OPINION IN WILLIAMS, OR BY
LESS THAN A UNANIMOUS VERDICT, A QUESTION ALSO RESERVED IN TODAY'S
DECISION. 

1.  THE COURT, IN STRIPPING OFF THE LIVERY OF HISTORY FROM THE JURY
TRIAL, RELIES ON A TWO-STEP ANALYSIS.  WITH ARUDOUS EFFORT THE COURT
FIRST LIBERATES ITSELF FROM THE "INTENT OF THE FRAMERS" AND "THE EASY
ASSUMPTION IN OUR PAST DECISIONS THAT IF A GIVEN FEATURE EXISTED IN A
JURY AT COMMON LAW IN 1789, THEN IT WAS NECESSARILY PRESERVED IN THE
CONSTITUTION."  ANTE, AT 92-93.  UNBURDENED BY THE YOKE OF HISTORY THE
COURT THEN CONCLUDES THAT THE POLICY PROTECTED BY THE JURY GUARANTEE
DOES NOT REQUIRE ITS PERPETUATION IN COMMON-LAW FORM. 

NEITHER ARGUMENT IS, IN MY VIEW, AN ACCEPTABLE REASON FOR
DISREGARDING HISTORY AND NUMEROUS PRONOUNCEMENTS OF THIS COURT THAT
HAVE MADE "THE EASY ASSUMPTION" THAT THE SIXTH AMENDMENT'S JURY WAS ONE
COMPOSED OF 12 INDIVIDUALS.  EVEN ASSUMING AMBIGUITY AS TO THE INTENT
OF THE FRAMERS, /9/  IT IS COMMON SENSE AND NOT MERELY THE BLESSING OF
THE FRAMERS THAT EXPLAINS THIS COURT'S FREQUENT REMINDERS THAT:  "THE
INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES IS NECESSARILY
INFLUENCED BY THE FACT THAT ITS PROVISIONS ARE FRAMED IN THE LANGUAGE
OF THE ENGLISH COMMON LAW, AND ARE TO BE READ IN THE LIGHT OF ITS
HISTORY."  SMITH V. ALABAMA 124 U.S. 465, 478 (1888).  THIS PROPOSITION
WAS AGAIN PUT FORWARD BY MR. JUSTICE GRAY SPEAKING FOR THE COURT IN
UNITED STATES V. WONG KIM ARK, 169 U.S. 649 (1898), WHERE THE COURT WAS
CALLED UPON TO DEFINE THE TERM "CITIZEN" AS USED IN THE CONSTITUTION. 
"THE CONSTITUTION NOWHERE DEFINES THE MEANING OF THESE WORDS (THE
CITIZENSHIP CLAUSE) . . . IN THIS, AS IN OTHER RESPECTS, IT MUST BE
INTERPRETED IN THE LIGHT OF THE COMMON LAW, THE PRINCIPLES AND HISTORY
OF WHICH WERE FAMILIARLY KNOWN TO THE FRAMERS OF THE CONSTITUTION." 
169 U.S.,AT 654.  HISTORY CONTINUES TO BE A WELLSPRING OF
CONSTITUTIONAL INTERPRETATION.  INDEED, HISTORY WAS EVEN INVOKED BY THE
COURT IN SUCH DECISIONS AS TOWNSEND V. SAIN, 372 U.S. 293 (1963), AND
FAY V. NOIA, 372 U.S. 391 (1963), WHERE IT PURPORTED TO INTERPRET THE
CONSTITUTIONAL PROVISION FOR HABEAS CORPUS ACCORDING TO THE "HISTORIC
CONCEPTION OF THE WRIT" AND TOOK NOTE THAT THE GUARANTEE WAS ONE ROOTED
IN COMMON LAW AND SHOULD BE SO INTERPRETED.  /10/  CF. UNITED STATES V.
BROWN, 381 U.S. 437, 458 (1965).  IN ACCORDANCE WITH THESE PRECEPTS,
SOUND CONSTITUTIONAL INTERPRETATION REQUIRES, IN MY VIEW, FIXING THE
FEDERAL JURY AS IT WAS KNOWN TO THE COMMON LAW. 

IT IS, OF COURSE, TRUE THAT HISTORY SHOULD NOT IMPRISON THOSE BROAD
GUARANTEES OF THE CONSTITUTION WHOSE PROPER SCOPE IS TO BE DETERMINED
IN A GIVEN INSTANCE BY A BLEND OF HISTORICAL UNDERSTANDING AND THE
ADAPTATION OF PURPOSE TO CONTEMPORARY CIRCUMSTANCES.  CF. KATZ V.
UNITED STATES, 389 U.S. 347 (1967); ESTES V. TEXAS, 381 U.S. 532, 595
596 (1965) (CONCURRING OPINION); OLMSTEAD V. UNITED STATES, 277 U.S.
438, 471 (1928) (BRANDEIS, J., DISSENTING); UNITED STATES V. LOVETT,
328 U.S. 303, 318 (1946) (FRANKFURTER, J., CONCURRING).  /11/  B.
CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).  THIS IS NOT,
HOWEVER, A CIRCUMSTANCE OF GIVING A TERM "A MEANING NOT NECESSARILY
ENVISIONED . . . SO AS TO ADAPT (IT) TO CIRCUMSTANCES . . .
UNCONTEMPLATED."  SEE MY OPINION CONCURRING IN THE RESULT IN WELSH V.
UNITED STATES, 398 U.S. 333, 344 (1970).  THE RIGHT TO A TRIAL BY JURY,
HOWEVER, HAS NO ENDURING MEANING APART FROM HISTORICAL FORM. 

THE SECOND ASPECT OF THE COURT'S ARGUMENT IS THAT THE NUMBER "12" IS
A HISTORICAL ACCIDENT-- EVEN THOUGH ONE THAT HAS RECURRED WITHOUT
INTERRUPTION SINCE THE 14TH CENTURY (SEE ANTE, AT 89)-- AND IS IN NO
WAY ESSENTIAL TO THE "PURPOSE OF THE JURY TRIAL" WHICH IS TO "SAFEGUARD
AGAINST THE CORRUPT OR OVERZEALOUS PROSECUTOR AND AGAINST THE
COMPLAINT, BIASED, OR ECCENTRIC JUDGE."  ANTE, AT 100.  THUS HISTORY,
THE COURT SUGGESTS, IS NO GUIDE TO THE MEANING OF THOSE RIGHTS WHOSE
FORM BEARS NO RELATION TO THE POLICY THEY REFLECT.  IN THIS CONTEXT THE
12-MEMBER FEATURE OF THE CLASSICAL COMMON-LAW JURY IS APPARENTLY
REGARDED BY THE COURT AS MERE ADORNMENT. 

THIS SECOND JUSTIFICATION FOR CUTTING THE UMBILICAL CORD THAT TIES
THE FORM OF THE JURY TO THE PAST IS ITSELF, AS I SEE IT, THE MOST
COMPELLING REASON FOR MAINTAINING THAT GUARANTEE IN ITS COMMON-LAW
FORM.  FOR IF 12 JURORS ARE NOT ESSENTIAL, WHY ARE SIX?  WHAT IF NEW
YORK, NOW COMPELLED BY VIRTUE OF BALDWIN TO PROVIDE JURIES FOR THE
TRIAL OF MISDEMEANORS, CONCLUDES THAT THREE JURORS ARE ADEQUATE
"INTERPOSITION BETWEEN THE ACCUSED AND HIS ACCUSER OF THE COMMON-SENCE
JUDGMENT OF A GROUP OF LAYMEN," AND CONSTITUTE ADEQUATE "COMMUNITY
PARTICIPATION AND (PROVIDE) SHARED RESPONSIBILITY WHICH RESULTS FROM
THAT GROUP'S DETERMINATION OF GUILT OR INNOCENCE"?  THE COURT'S
ELABORATION OF WHAT IS REQUIRED PROVIDES NO STANDARD AND VEXES THE
MEANING OF THE RIGHT TO A JURY TRIAL IN FEDERAL COURTS, AS WELL AS
STATE COURTS, BY UNCERTAINTY.  CAN IT BE DOUBTED THAT A UNANIMOUS JURY
OF 12 PROVIDES A GREATER SAFEGUARD THAN A MAJORITY VOTE OF SIX?  THE
UNCERTAINTY THAT WILL HENCEFORTH PLAGUE THE MEANING OF TRIAL BY JURY IS
ITSELF A FURTHER SUFFICIENT REASON FOR NOT HOISTING THE ANCHOR TO
HISTORY. 

2.  THE CIRCUMVENTION OF HISTORY IS COMPOUNDED BY THE CAVALIER
DISREGARD OF NUMEROUS PRONOUNCEMENTS OF THIS COURT THAT REFLECT THE
UNDERSTANDING OF THE JURY AS ONE OF 12 MEMBERS AND HAVE FIXED
EXPECTATIONS ACCORDINGLY.  THUS IN THOMPSON V. UTAH A UNANIMOUS COURT
ANSWERED IN THE AFFIRMATIVE THE QUESTION WHETHER THE SIXTH AMENDMENT
JURY "IS A JURY CONSTITUTED, AS IT WAS AT COMMON LAW, OF TWELVE
PERSONS, NEITHER MORE NOR LESS."  170 U.S. 343, 349 (1898), /12/  AND
IT APPEARS THAT BEFORE DUNCAN NO JUSTICE OF THIS COURT HAS SEEN FIT TO
QUESTION THIS HOLDING, ONE THAT HAS OFTEN BEEN REITERATED.  SEE PATTON
V. UNITED STATES, 281 U.S. 276, 288 (1930), WHERE THE COURT REAFFIRMED
EARLIER PRONOUNCEMENTS AND STATED THAT THE SIXTH AMENDMENT JURY IS
CHARACTERIZED BY THREE ESSENTIAL FEATURES: "(1) THAT THE JURY SHOULD
CONSIST OF TWELVE MEN, NEITHER MORE NOR LESS; (2) THAT THE TRIAL SHOULD
BE IN THE PRESENCE AND UNDER THE SUPERINTENDENCE OF A JUDGE HAVING
POWER TO INSTRUCT THEM AS TO THE LAW AND ADVISE THEM IN RESPECT OF THE
FACTS; AND (3) THAT THE VERDICT SHOULD BE UNANIMOUS."  SEE ALSO MAXWELL
V. DOW, 176 U.S. 581, 586 (1900); RASSMUSSEN V. UNITED STATES, 197 U.S.
516, 527 (1905); ANDRES V. UNITED STATES, 333 U.S. 740, 748 (1948)
(UNARIMITY).  /13/  AS MR. JUSTICE FRANKFURTER STATED IN GORE V. UNITED
STATES, 357 U.S. 386, 392 (1958), IN APPLYING A CONSTITUTIONAL
PROVISION "ROOTED IN HISTORY . . . A LONG COURSE OF ADJUDICATION IN
THIS COURT CARRIES IMPRESSIVE AUTHORITY." 

THE PRINCIPLE OF STARE DECISIS IS MULTIFACETED.  IT IS A SOLID
FOUNDATION FOR OUR LEGAL SYSTEM; YET CARE MUST BE TAKEN NOT TO USE IT
TO CREATE AN UNMOVABLE STRUCTURE.  IT PROVIDES THE STABILITY AND
PREDICTABILITY REQUIRED FOR THE ORDERING OF HUMAN AFFAIRS OVER THE
COURSE OF TIME AND A BASIS OF "PUBLIC FAITH IN THE JUDICIARY AS A
SOURCE OF IMPERSONAL AND REASONED JUDGMENTS."  MORAGNE V. STATES MARINE
LINES, 398 U.S. 375, 403 (1970).  SEE ALSO HELVERING V. HALLOCK, 309
U.S. 106 (1940); BOYS MARKETS V. RETAIL CLERKS, 398 U.S. 235 (1970);
HERTZ V. WOODMAN, 218 U.S. 205, 212 (1910); BURNET V. CORONADO OIL &
GAS CO., 285 U.S. 393, 405-406 (1932) (BRANDEIS, J., DISSENTING). 
WOODENLY APPLIED, HOWEVER, IT BUILDS A STOCKADE OF PRECEDENT THAT
CONFINES THE LAW BY RULES, ILL-CONCEIVED WHEN PROMULGATED, OR IF SOUND
IN ORIGIN, UNADAPTABLE TO PRESENT CIRCUMSTANCES.  NO PRECEDENT IS
SACROSANCT AND ONE SHOULD NOT HESITATE TO VOTE TO OVERTURN THIS COURT'S
PREVIOUS HOLDINGS-- OLD OR RECENT-- OR RECONSIDER SETTLED DICTA WHERE
THE PRINCIPLES ANNOUNCED PROVE EITHER PRACTICALLY (E.G., MORAGNE V.
STATES MARINE LINES, SUPRA; BOYS MARKETS V. RETAIL CLERKS, SUPRA), OR
JURISPRUDENTIALLY (E.G., DESIST V. UNITED STATES, 394 U.S. 244, 256
(1969) (DISSENTING OPINION)) UNWORKABLE, OR NO LONGER SUITED TO
CONTEMPORARY LIFE (E.G., KATZ V. UNITED STATES, 389 U.S. 347, 360
(1967) (CONCURRING OPINION)).  SEE ALSO WELSH V. UNITED STATES, 398
U.S. 333 (1970); CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969); MARCHETTI
V. UNITED STATES, 390 U.S. 39 (1968); ESTES V. TEXAS, 381 U.S.,AT 595
596 (CONCURRING OPINION); WARDEN V. HAYDEN, 387 U.S. 294 (1967); SWIFT
& CO. V. WICKHAM, 382 U.S. 111 (1965); JAMES V. UNITED STATES, 366 U.S.
213, 241 (1961) (SEPARATE OPINION OF HARLAN, J.).  INDEED, IT IS THESE
CONSIDERATIONS THAT MOVE ME TO DEPART TODAY FROM THE FRAMEWORK OF
DUNCAN.  IT IS, IN PART, THE DISREGARD OF STARE DECISIS IN
CIRCUMSTANCES WHERE IT SHOULD APPLY, TO WHICH THE COURT IS, OF
NECESSITY, DRIVEN IN WILLIAMS BY THE "INCORPORATION" DOCTRINE, THAT
LEADS ME TO DECLINE TO FOLLOW DUNCAN.  SURELY IF THE PRINCIPLE OF STARE
DECISIS MEANS ANYTHING IN THE LAW, IT MEANS THAT PRECEDENT SHOULD NOT
BE JETTISONED WHEN THE RULE OF YESTERDAY REMAINS VIABLE, CREATES NO
INJUSTICE, AND CAN REASONABLY BE SAID TO BE NO LESS SOUND THAN THE RULE
SPONSORED BY THOSE WHO SEEK CHANGE, LET ALONE INCAPABLE OF BEING
DEMONSTRATED WRONG.  THE DECISION IN WILLIAMS, HOWEVER, CASTS ASIDE
WORKABILITY AND RELEVANCE AND SUBSTITUTES UNCERTAINTY.  THE ONLY REASON
I CAN DISCERN FOR TODAY'S DECISION THAT DISCARDS NUMEROUS JUDICIAL
PRONOUNCEMENTS AND HISTORICAL PRECEDENT THAT SOUND CONSTITUTIONAL
INTERPRETATION WOULD LOOK TO AS CONTROLLING, IS THE COURT'S DISQUIETUDE
WITH THE TENSION BETWEEN THE JURISPRUDENTIAL CONSEQUENCES WROUGHT BY
"INCORPORATION" IN DUNCAN AND BALDWIN AND THE COUNTER-PULLS OF THE
SITUATION IN WILLIAMS WHICH PRESENTS THE PROSPECT OF INVALIDATING THE
COMMON PRACTICE IN THE STATES OF PROVIDING LESS THAN A 12-MEMBER JURY
FOR THE TRIAL OF MISDEMEANOR CASES. 

        II 

THESE DECISIONS DEMONSTRATE THAT THE DIFFERENCE BETWEEN A "DUE
PROCESS" APPROACH, THAT CONSIDERS EACH PARTICULAR CASE ON ITS OWN
BOTTOM TO SEE WHETHER THE RIGHT ALLEGED IS ONE "IMPLICIT IN THE CONCEPT
OF ORDERED LIBERTY," SEE PALKO V. CONNECTICUT, 302 U.S. 319, 325
(1937), AND "SELECTIVE INCORPORATION" IS NOT AN ABSTRACT ONE WHEREBY
DIFFERENT VERBAL FORMULAE ACHIEVE THE SAME RESULTS.  THE INERNAL LOGIC
OF THE SELECTIVE INCORPORATION DOCTRINE CANNOT BE RESPECTED IF THE
COURT IS BOTH COMMITTED TO INTERPRETING FAITHFULLY THE MEANING OF THE
FEDERAL BILL OF RIGHTS AND RECOGNIZING THE GOVERNMENTAL DIVERSITY THAT
EXISTS IN THIS COUNTRY.  THE "BACKLASH" IN WILLIAMS EXPOSES THE
MALAISE, FOR THERE THE COURT DILUTES A FEDERAL GUARANTEE IN ORDER TO
RECONCILE THE LOGIC OF "INCORPORATION," THE "JOT-FOR-JOT AND CASE-FOR
CASE" APPLICATION OF THE FEDERAL RIGHT TO THE STATES, WITH THE REALITY
OF FEDERALISM.  CAN ONE DOUBT THAT HAD CONGRESS TRIED TO UNDERMINE THE
COMMON-LAW RIGHT TO TRIAL BY JURY BEFORE DUNCAN CAME ON THE BOOKS THE
HISTORY TODAY RECITED WOULD HAVE BARRED SUCH ACTION?  CAN WE EXPECT
REPEAT PERFORMANCES WHEN THIS COURT IS CALLED UPON TO GIVE DEFINITION
AND MEANING TO OTHER FEDERAL GUARANTEES THAT HAVE BEEN "INCORPORATED"? 

IN KER V. CALIFORNIA, 374 U.S. 23 (1963), I NOTED IN AN OPINION
CONCURRING IN THE RESULT THAT:  "THE RULE (OF 'INCORPORATION') IS
UNWISE BECAUSE THE STATES, WITH THEIR DIFFERING LAW ENFORCEMENT
PROBLEMS, SHOULD NOT BE PUT IN A CONSTITUTIONAL STRAIT JACKET . . . AND
IF THE COURT IS PREPARED TO RELAX (FEDERAL) STANDARDS IN ORDER TO AVOID
UNDULY FETTERING THE STATES, THIS WOULD BE IN DEROGATION OF LAW
ENFORCEMENT STANDARDS IN THE FEDERAL SYSTEM . . ."  ID., AT 45-46. 
ONLY LAST TERM IN CHIMEL V. CALIFORNIA, SUPRA, I AGAIN EXPRESSED MY
MISGIVINGS THAT "INCORPORATION" WOULD NEUTRALIZE THE POTENCY OF
GUARANTEES IN FEDERAL COURTS IN ORDER TO ACCOMMODATE THE DIVERSITY OF
OUR FEDERAL SYSTEM.  I REITERATE WHAT I SAID IN DISSENT IN DUNCAN, 391
U.S.,AT 175-176:  "(NEITHER HISTORY, NOR SENSE, SUPPORTS USING THE
FOURTEENTH AMENDMENT TO PUT THE STATES IN A CONSTITUTIONAL STRAITJACKET
WITH RESPECT TO THEIR OWN DEVELOPMENT IN THE ADMINISTRATION OF CRIMINAL
OR CIVIL LAW."  SINCE WE NOW WITNESS THE FIRST MAJOR ATTEMPT TO WRIGGLE
FREE OF THAT "STRAITJACKET," IT IS APPROPRIATE, I THINK, TO STEP BACK
AND VIEW IN PERSPECTIVE HOW FAR THE INCORPORATION DOCTRINE HAS TAKEN
US, AND TO PUT THE SPOTLIGHT ON A CONSTITUTIONAL REVOLUTION THAT HAS
INEVITABLY BECOME OBSCURED BY THE PROCESS OF CASE-BY-CASE
ADJUDICATION. 

        A 

THE RECENT HISTORY OF CONSTITUTIONAL ADJUDICATION IN STATE CRIMINAL
CASES IS THE ASCENDANCY OF THE DOCTRINE OF AD HOC ("SELECTIVE")
INCORPORATION, AN APPROACH THAT ABSORBS ONE-BY-ONE INDIVIDUAL
GUARANTEES OF THE FEDERAL BILL OF RIGHTS INTO THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, AND HOLDS THEM APPLICABLE TO THE STATES WITH
ALL THE SUBTLETIES AND REFINEMENTS BORN OF HISTORY AND EMBODIED IN CASE
EXPERIENCE DEVELOPED IN THE CONTEXT OF FEDERAL ADJUDICATION.  THUS,
WITH FEW EXCEPTIONS THE COURT HAS "INCORPORATED," EACH TIME OVER MY
PROTEST, /14/  ALMOST ALL THE CRIMINAL PROTECTIONS FOUND WITHIN THE
FIRST EIGHT AMENDMENTS TO THE CONSTITUTION, AND MADE THEM "JOT-FOR-JOT
AND CASE-FOR-CASE" APPLICABLE TO THE STATES.     THE PROCESS BEGAN WITH
MAPP V. OHIO, 367 U.S. 643 (1961), WHERE THE COURT APPLIED TO THE
STATES THE SO-CALLED EXCLUSIONARY RULE, RENDERING INADMISSIBLE AT TRIAL
EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT, AND THEREBY
OVERRULING PRO TANTO WOLF V. COLORADO, 338 U.S. 25 (1949).  SEE MY
DISSENTING OPINION, 367 U.S.,AT 672.  THE PARTICULAR COURSE EMBARKED
UPON IN MAPP WAS BLINDLY FOLLOWED TO ITS END IN KER V. CALIFORNIA, 374
U.S. 23 (1963), WHERE THE COURT MADE FEDERAL STANDARDS OF PROBABLE
CAUSE FOR SEARCH AND SEIZURE APPLICABLE TO THE STATES, THEREBY
OVERRULING THE REMAINDER OF WOLF.  SEE MY OPINION CONCURRING IN THE
RESULT, 374 U.S.,AT 44.  THEREAFTER FOLLOWED MALLOY V. HOGAN, 378 U.S.
1 (1964), AND GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965), OVERRULING
TWINING V. NEW JERSEY, 211 U.S. 78 (1908), AND ADAMSON V. CALIFORNIA,
332 U.S. 46 (1947), AND INCORPORATING THE FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION BY HOLDING THAT "THE SAME STANDARDS MUST
DETERMINE WHETHER AN ACCUSED'S SILENCE IN EITHER A FEDERAL OR STATE
PROCEEDING IS JUSTIFIED."  378 U.S.,AT 11.  SEE MY DISSENTING OPINION
IN MALLOY, 378 U.S.,AT 14, AND MY CONCURRING OPINION IN GRIFFIN, 380
U.S.,AT 615.  THE YEAR OF GRIFFIN ALSO BROUGHT FORTH POINTER V. TEXAS,
380 U.S. 400 (1965), OVERRULING SNYDER V. MASSACHUSETTS, 291 U.S. 97
(1934), AND STEIN V. NEW YORK, 346 U.S. 156, 194 (1953), BY HOLDING
THAT THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE APPLIED EQUALLY TO THE
STATES AND FEDERAL GOVERNMENT.  SEE MAY OPINION CONCURRING IN THE
RESULT, 380 U.S.,AT 408.  IN 1967 INCORPORATION SWEPT IN THE "SPEEDY
TRIAL"  GUARANTEE OF THE SIXTH AMENDMENT.  KLOPFER V. NORTH CAROLINA,
386 U.S. 213 (1967), AND IN 1968 DUNCAN V. LOUISIANA, SUPRA, RENDERED
THE SIXTH AMENDMENT JURY TRIAL A RIGHT SECURED BY THE FOURTEENTH
AMENDMENT DUE PROCESS CLAUSE.  ONLY LAST TERM THE COURT OVERRULED PALKO
V. CONNECTICUT, SUPRA, AND HELD THAT THE "DOUBLE JEOPARDY" PROTECTION
OF THE FIFTH AMENDMENT WAS INCORPORATED INTO THE FOURTEENTH, AND HENCE
ALSO CARRIED TO THE STATES.  BENTON V. MARYLAND, 395 U.S. 784 (1969);
SEE MY OPINION CONCURRING IN THE RESULT IN KLOPFER, 386 U.S.,AT 226; MY
DISSENTING OPINION IN DUNCAN, 391 U.S.,AT 171; MY DISSENTING OPINION IN
BENTON, 395 U.S.,AT 801, AND MY SEPARATE OPINION IN NORTH CAROLINA V.
PEARCE, 395 U.S. 711, 744 (1969).  /15/  IN COMBINATION THESE CASES
HAVE IN EFFECT RESTRUCTURED THE CONSTITUTION IN THE FIELD OF STATE
CRIMINAL LAW ENFORCEMENT. 

THERE IS NO NEED TO TRAVEL AGAIN OVER TERRAIN TROD IN EARLIER
OPINIONS IN WHICH I HAVE ENDEAVORED TO LAY BARE THE HISTORICAL AND
LOGICAL INFIRMITIES OF THIS "INCORPORATIONIST" APPROACH.  ON THAT SCORE
I AM CONTENT TO REST ON WHAT I SAID IN DISSENT IN DUNCAN, 391 U.S.,AT
171.  I CONTINUE TO CONSIDER THE PRINCIPLES THEREIN EXPRESSED AS THE
SOUND BASIS FOR APPROACHING THE ADJUDICATION OF STATE CASES OF THE KIND
NOW BEFORE US. IT IS MY FIRM CONVICTION THAT "INCORPORATION" DISTORTS
THE "ESSENTIALLY FEDERAL NATURE OF OUR NATIONAL GOVERNMENT," ATLANTIC
COAST LINE R. CO. V. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, 398 U.S. 281,
285 (1970), ONE OF WHOSE BASIC VIRTUES IS TO LEAVE AMPLE ROOM FOR
GOVERNMENTAL AND SOCIAL EXPERIMENTATION IN A SOCIETY AS DIVERSE AS
OURS, AND WHICH ALSO REFLECTS THE VIEW OF THE FRAMERS THAT "THE
SECURITY OF LIBERTY IN AMERICA RESTED PRIMARILY UPON THE DISPERSION OF
GOVERNMENTAL POWER ACROSS A FEDERAL SYSTEM," 391 U.S.,AT 173.  THE
FOURTEENTH AMENDMENT TEMPERED THIS BASIC PHILOSOPHY BUT DID NOT
UNSTITCH THE BASIC FEDERALIST PATTERN WOVEN INTO OUR CONSTITUTIONAL
FABRIC.  THE STRUCTURE OF OUR GOVERNMENT STILL EMBODIES A PHILOSOPHY
THAT PRESUPPOSES THE DIVERSITY THAT ENGENDERED THE FEDERALIST SYSTEM. 

THAT THESE DOCTRINES ARE NOT ONLY ALIVE IN RHETORIC BUT VITAL IN THE
WORLD OF PRACTICAL AFFAIRS IS EVIDENCED BY CONTEMPORARY DEBATE
CONCERNING THE DESIRABILITY OF RETURNING TO "LOCAL" GOVERNMENT THE
ADMINISTRATION OF MANY PROGRAMS AND FUNCTIONS THAT HAVE IN LATE YEARS
INCREASINGLY BEEN CENTRALIZED IN THE HANDS OF THE NATIONAL GOVERNMENT. 

        B 

BUT THE BEST EVIDENCE OF THE VITALITY OF FEDERALISM IS TODAY'S
DECISION IN WILLIAMS.  THE MERITS OR DEMERITS OF THE JURY SYSTEM CAN,
OF COURSE, BE DEBATED AND THOSE STATES THAT HAVE DILUTED THE COMMON-LAW
REQUIREMENTS EVINCE A CONCLUSION THAT THE PROTECTION AS KNOWN AT COMMON
LAW IS NOT NECESSARY FOR A FAIR TRIAL, OR IS ONLY SUCH MARGINAL
ASSURANCE OF A FAIR TRIAL THAT THE INCONVENIENCE OF ASSEMBLING 12
INDIVIDUALS OUTWEIGHS OTHER GAINS IN THE ADMINISTRATION OF JUSTICE
ACHIEVED BY USING ONLY SIX INDIVIDUALS (OR NONE AT ALL AS WAS THE CASE
IN NEW YORK CITY). 

THE PREVAILING OPINION REJECTS IN BALDWIN WHAT WOULD BE THE
CONSISTENT APPROACH, REQUIRING AFFIRMANCE, SIMPLY BECAUSE NEW YORK CITY
IS THE SINGLE JURISDICTION IN THE NATION THAT SEES FIT TO TRY
MISDEMEANANTS WITHOUT A JURY.  IN DOING SO IT, IN EFFECT, HOLDS THAT
"DUE PROCESS" IS MORE OFFENDED BY A TRIAL WITHOUT A JURY FOR AN OFFENSE
PUNISHABLE BY NO MORE THAN A YEAR IN PRISON THAN IT IS BY A TRIAL WITH
A JURY OF SIX OR LESS FOR OFFENSES PUNISHABLE BY LIFE IMPRISONMENT. 
THIS IGNORES BOTH THE BASIC FAIRNESS OF THE NEW YORK PROCEDURE AND THE
PECULIAR LOCAL CONSIDERATIONS THAT HAVE LED THE NEW YORK LEGISLATURE TO
CONCLUDE THAT TRIAL BY JURY IS MORE APT TO RETARD THAN FURTHER JUSTICE
FOR CRIMINAL DEFENDANTS IN NEW YORK CITY. 

I, FOR ONE, FIND NOTHING UNFAIR IN THE NEW YORK SYSTEM WHICH
PROVIDES THE CITY DEFENDANT WITH AN OPTION, IN LIEU OF A JURY, OF A
BENCH TRIAL BEFORE THREE JUDGES, N.Y.C. CRIM. CT. ACT SEC. 40. 
MOREOVER, I THINK IT COUNTERPRODUCTIVE OF FAIRNESS IN CRIMINAL TRIALS
TO HOLD BY WAY OF INCORPORATION THAT JURIES ARE REQUIRED OF STATES IN
THESE DAYS WHEN CONGESTED CALENDARS AND ATTENDANT DELAYS MAKE WHAT MANY
STUDENTS OF CRIMINAL JUSTICE FEEL IS ONE OF THE MOST SIGNIFICANT
CONTRIBUTIONS TO INJUSTICE AND HARDSHIP TO CRIMINAL DEFENDANTS. 

THE STATISTICS CITED BY THE NEW YORK COURT OF APPEALS AND AMPLIFIED
IN THE BRIEFS ARE REVEALING AND TRENCHANT EVIDENCE OF THE CRISIS THAT
PRESENTLY BEDEVILS THE ADMINISTRATION OF CRIMINAL JUSTICE IN NEW YORK
CITY.  NEW YORK'S POPULATION DENSITY, A FACTOR WHICH IS, AS NOTED BY
THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY, 5, 28 (1967),
DIRECTLY ASSOCIATED WITH CRIME, IS TWICE THAT OF BUFFALO, THE SECOND
LARGEST CITY IN THE STATE.  STATISTICS SUPPLIED BY THE OFFICE OF THE
STATE ADMINISTRATOR OF THE JUDICIAL CONFERENCE OF THE STATE OF NEW YORK
SHOW THAT:  "FROM JULY, 1966 THROUGH DECEMBER, 1968 THE NEW YORK CITY
CRIMINAL COURT DISPOSED OF 321,368 NONTRAFFIC MISDEMEANOR CASES;
WHEREAS IN THE NEXT LARGEST CITY, BUFFALO, THE CITY COURT DISPOSED OF
8,189 NONTRAFFIC MISDEMEANOR CASES."  24 N.Y.2D 207, 218, 247 N.E.2D
260, 266 (1969).  THUS, NEW YORK CITY'S MISDEMEANOR CASELOAD IS 39
TIMES THAT OF BUFFALO'S ALTHOUGH ITS POPULATION IS ONLY 17 TIMES
GREATER.  AFTER TODAY EACH OF SUCH DEFENDANTS IN NEW YORK IS ENTITLED
TO A TRIAL BY SOME KIND OF A JURY.  IT CAN HARDLY BE GAINSAID THAT A
JURY REQUIREMENT WITH THE ATTENDANT TIME FOR SELECTION OF JURORS AND
DELIBERATION, EVEN IF NOT INVOKED BY ALL DEFENDANTS, WILL INCREASE
DELAYS IN CALENDARS, DEPRIVING ALL DEFENDANTS OF A PROMPT TRIAL. 
IMPRESSIVE EVIDENCE SUGGESTS THAT THIS REQUIREMENT COULD CONCEIVABLY
INCREASE DELAYS IN NEW YORK CITY COURTS BY AS MUCH AS A FACTOR OF
EIGHT.  A STUDY DONE OF THE ADMINISTRATION OF THE MUNICIPAL COURT IN
MINNEAPOLIS SHOWS THAT THE REQUIREMENT OF A TRIAL BY JURY IN CASES OF
INTOXICATED DRIVING INCREASED COURT DELAYS THERE FROM THREE TO 24
MONTHS.  NOTE, RIGHT TO A JURY TRIAL FOR PERSONS ACCUSED OF AN
ORDINANCE VIOLATION, 47 MINN.L.REV.  93 (1962). 

NOTWITHSTANDING THIS CRITICAL SITUATION THE COURT CONCLUDES THAT THE
CONSTITUTION REQUIRES A PROCEDURE FRAUGHT WITH DELAY EVEN THOUGH THE
AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE,
TRIAL BY JURY, HAS RECOGNIZED THE NEW YORK CITY THREE-JUDGE PROCEDURE
AS A POSSIBLE COMPROMISE MEASURE WHERE JURY TRIALS ARE NOT PERMITTED OR
WAIVED, AND THE FURTHER FACT THAT ONE-HALF THE DEFENDANTS TRIED FOR
MISDEMEANORS IN NEW YORK CITY ARE ACQUITTED.  /16/

        III 

TODAY'S DECISIONS DEMONSTRATE A CONSTITUTIONAL SCHIZOPHRENIA BORN OF
THE NEED TO COPE WITH NATIONAL DIVERSITY UNDER THE CONSTRAINTS OF THE
INCORPORATION DOCTRINE.  IN BALDWIN THE PREVAILING OPINION OVERRIDES
THE CONSIDERATION OF LOCAL NEEDS, BUT IN WILLIAMS THE COURT SEEKS OUT A
MINIMUM STANDARD TO AVOID CAUSING DISRUPTION IN NUMEROUS INSTANCES EVEN
THOUGH, A PRIORI, INCORPORATION WOULD SURELY REQUIRE A JURY OF 12.  THE
SIX-MAN, SIX-MONTH RULE OF TODAY'S DECISIONS SIMPLY REFLECTS THE LOWEST
COMMON DENOMINATOR IN THE SCOPE AND FUNCTION OF THE RIGHT TO TRIAL BY
JURY IN THIS COUNTRY, BUT THE CIRCUMSTANCES THAT EVERY JURISDICTION
EXCEPT NEW YORK CITY HAS A TRIAL BY A JURY FOR OFFENSES PUNISHABLE BY
SIX MONTHS IN PRISON OBSCURES THE VARIETY OF OPOINION THAT ACTUALLY
EXISTS AS TO THE PROPER PLACE FOR THE JURY IN THE ADMINISTRATION OF
JUSTICE.  MORE DISCRIMINATING ANALYSIS INDICATES THAT FOUR STATES
BESIDES FLORIDA AUTHORIZE A JURY OF LESS THAN 12 TO TRY FELONY OFFENSES
/17/  AND THREE STATES AUTHORIZE A NONUNANIMOUS VERDICT /18/  IN FELONY
CASES, AND AT LEAST TWO OTHER STATES PROVIDE A TRIAL WITHOUT JURY IN
THE FIRST INSTANCE FOR CERTAIN OFFENSES PUNISHABLE BY MORE THAN ONE
YEAR WITH A RIGHT TO DE NOVO TRIAL ON APPEAL.  /19/  EIGHT STATES
PROVIDE FOR JURIES RANGING FROM FIVE TO 12 TO TRY CRIMES PUNISHABLE BY
ONE YEAR IN PRISON, AND ONE STATE HAS PROVIDED FOR A VERDICT BY NINE IN
A JURY OF 12.  /20/  FIVE STATES FIRST PROVIDE A BENCH TRIAL FOR
MISDEMEANORS FROM WHICH THE DEFENDANT CAN SEEK A TRIAL DE NOVO BY JURY,
/21/  A PROCEDURE THAT THIS COURT, IN A FEDERAL TRIAL, HAS DEEMED
INCOMPATIBLE WITH THE SIXTH AMENDMENT FOR PUTTING THE ACCUSED TO THE
BURDEN OF TWO TRIALS IF HE WISHES A JURY VERDICT.  SEE CALLAN V.
WILSON, 127 U.S. 540 (1888).  /22/ 

THESE VARYING PROVISIONS, REFLECTING AS THEY DO DIFFERING ESTIMATES
OF THE IMPORTANCE OF THE JURY IN SECURING A FAIR TRIAL AND THE
FEASIBILITY OF ADMINISTERING SUCH A PROCEDURE GIVEN THE LOCAL
CIRCUMSTANCES, AND THE EXTENSIVE STUDY AND DEBATE ABOUT THE MERITS AND
DEMERITS OF THE JURY SYSTEM, DEMONSTRATE THAT THE RELEVANCE AND PROPER
ROLE OF TRIAL BY JURY IN THE ADMINISTRATION OF CRIMINAL JUSTICE IS YET
FAR FROM SURE. 

"INCORPORATION" IN DUNCAN CLOSED THE DOOR ON DEBATE, /23/
IRRESPECTIVE OF LOCAL CIRCUMSTANCES, SUCH AS THE BACKLOGS IN URBAN
COURTS LIKE THOSE OF NEW YORK CITY, AND HAS, WITHOUT JUSTIFICATION,
CLOUDED WITH UNCERTAINTY THE CONSTITUTIONALITY OF THESE DIFFERING STATE
MODES OF PROCEEDING, SEE APPENDIX, PENDING APPROVAL BY THIS COURT; IT
NOW PROMISES TO DILUTE IN OTHER WAYS THE SETTLED MEANING OF THE FEDERAL
RIGHT TO A TRIAL BY JURY.  FLEXIBILITY FOR EXPERIMENTATION IN THE
ADMINISTRATION OF JUSTICE SHOULD BE RETURNED TO THE STATES HERE AND IN
OTHER AREAS THAT NOW HAVE BEEN SWEPT INTO THE RIGID MOLD OF
"INCORPORATION."  I AGREE WITH THE CHIEF JUSTICE:  "THAT THE 'NEAR
UNIFORM JUDGMENT OF THE NATION' IS OTHERWISE THAN THE JUDGMENT IN SOME
OF ITS PARTS AFFORDS NO BASIS . . . TO READ INTO THE CONSTITUTION
SOMETHING NOT FOUND THERE."  OPINION OF THE CHIEF JUSTICE IN BALDWIN,
ANTE, AT 77. 

IT IS TIME, I SUBMIT, FOR THIS COURT TO FACE UP TO THE REALITY
IMPLICIT IN TODAY'S HOLDINGS AND RECONSIDER THE "INCORPORATION"
DOCTRINE BEFORE ITS LEVELING TENDENCIES FURTHER RETARD DEVELOPMENT IN
THE FIELD OF CRIMINAL PROCEDURE BY STIFLING FLEXIBILITY IN THE STATES
AND BY DISCARDING THE POSSIBILITY OF FEDERAL LEADERSHIP BY EXAMPLE. 

/1/  OUTSIDE OF NEW YORK CITY, SUCH CASES ARE TRIABLE BEFORE SIX
MEMBER JURIES. 

/2/  FLORIDA PROVIDES FOR A JURY OF 12 IN CAPITAL CASES AND A SIX
MEMBER JURY "TO TRY ALL OTHER CRIMINAL CASES."  FLA. STAT. SEC.
913.10(1) (1967). 

/3/  AS MR. JUSTICE FRANKFURTER SAID, SPEAKING FOR THE COURT: 

"(STARE DECISIS EMBODIES AN IMPORTANT SOCIAL POLICY.  IT REPRESENTS
AN ELEMENT OF CONTINUITY IN LAW, AND IS ROOTED IN THE PSYCHOLOGIC NEED
TO SATISFY REASONABLE EXPECTATIONS.  BUT STARE DECISIS IS A PRINCIPLE
OF POLICY AND NOT A MECHANICAL FORMULA OF ADHERENCE TO THE LATEST
DECISION, HOWEVER RECENT AND QUESTIONABLE, WHEN SUCH ADHERENCE INVOLVES
COLLISION WITH A PRIOR DOCTRINE MORE EMBRACING IN ITS SCOPE,
INTRINSICALLY SOUNDER, AND VERIFIED BY EXPERIENCE."  HELVERING V.
HALLOCK, 309 U.S. 106, 119 (1940). 

/4/  WHILE ALL STATES EXCEPT NEW YORK PROVIDE FOR JURY TRIALS FOR
CRIMES CARRYING SENTENCES OF SIX MONTHS OR MORE, THERE IS A GOOD DEAL
OF DIVERSITY AS TO THE NUMBER OF JURORS AND THE STATE AT WHICH THE
RIGHT TO JURY TRIAL ATTACHES. 

/5/  AFTER CONCLUDING, RELYING ON THIS COURT'S PRIOR DECISIONS, THAT
THE JURY TRIAL REQUIRED BY THE SIXTH AMENDMENT APPLIES ONLY TO
"SERIOUS" AS OPPOSED TO "PETTY" OFFENSES, THE OPINION DEFINES THOSE
TERMS BY PERFUNCTORY REFERENCE TO HISTORY AND A SURVEY OF PREVAILING
STATE RULES.  SEE NO. 188, ANTE, AT 71-72. 

/6/  "THE RANGE AND SEVERITY OF PUNISHMENT IN SUMMARY TRIALS HAS
BEEN DEFINED BY LIMITING JURISDICTION TO THE IMPOSITION OF FINES UP TO
A HUNDRED POUNDS AND SENTENCES WITH HARD LABOR UP TO SIX MONTHS."  ID.,
AT 934.  THE PRACTICE IN THE COLONIES WAS NOT UNIFORM BUT IT IS
APPARENT THAT THE LINE WAS DRAWN AT SIX MONTHS IN MOST INSTANCES.  SEE
DISTRICT OF COLUMBIA V. CLAWANS, SUPRA, AT 626 NN. 2, 3.     /7/  WHILE
THIS COURT HAS SAID THAT THE MOST SIGNIFICANT INDEX TO THE SERIOUSNESS
OF AN OFFENSE IS THE DEGREE OF PENALTY THAT ATTACHES, SEE FRANK V.
UNITED STATES, 395 U.S. 147, 148 (1969); DISTRICT OF COLUMBIA V.
CLAWANS, SUPRA, IT SHOULD BE RECALLED THAT THIS IS NOT ALONE
DETERMINATIVE AND THAT THE "APPORTIONED PUNISHMENT WAS BOTH A
CONSEQUENCE OF THE MINOR QUALITY OF THE MISCONDUCT AND AN INDEX OF THE
COMMUNITY'S MORAL JUDGMENT UPON IT."  FRANKFURTER & CORCORAN, SUPRA, AT
980.  IN CLAWANS THE COURT HELD THE SEVERITY OF PUNISHMENT WAS NOT
DETERMINATIVE WHEN THE OFFENSE BY ITS OWN NATURE IS NOT CONSIDERED
GRAVE.  300 U.S.,AT 625; SEE ALSO CALLAN V. WILSON, SUPRA, AT 556;
SCHICK V. UNITED STATES, SUPRA, WHERE THIS COURT NOTED THAT THE
"NATURE" OF THE OFFENSE AND THE SEVERITY OF PUNISHMENT ARE TWO DISTINCT
CONSIDERATIONS.  CF. THE HOUSE DEBATE IN 1930 OVER A BILL TO PROVIDE
FOR A TRIAL BEFORE FEDERAL MAGISTRATES FOR CRIMES OF A PETTY NATURE, 72
CONG.REC.  9991-9994; SEE ALSO H.R. REP. NO. 1699, 71ST CONG.,2D SESS.
(1930) (MINORITY VIEWS); COMMENTS, AMERICAN BAR ASSOCIATION PROJECT ON
STANDARDS FOR CRIMINAL JUSTICE, TRIAL BY JURY 21 (APPROVED DRAFT 1968);
COMMENT, THE PETTY OFFENSE CATEGORY AND TRIAL BY JURY, 40 YALE L.J.
1303 (1931).  I WOULD RESERVE THE QUESTION AS TO WHETHER A JURY WOULD
BE REQUIRED IN A FEDERAL CASE FOR A PARTICULAR OFFENSE NOT PUNISHABLE
BY MORE THAN SIX MONTHS IN PRISON. 

/8/  NOR DO I THINK IT OFFENDS THE EQUAL PROTECTION CLAUSE FOR NEW
YORK NOT TO PROVIDE JURIES TO HEAR OFFENSES PUNISHABLE BY SIX MONTHS IN
NEW YORK CITY BUT TO HAVE SUCH A PROVISION FOR TRIALS ELSEWHERE IN THE
STATE.  IN SALSBURG V. MARYLAND, 346 U.S. 545 (1954), AND MISSOURI V.
LEWIS, 101 U.S. 22 (1880), THIS COURT UPHELD THE RIGHT OF A STATE TO
ADAPT PROCEDURES TO THE DIFFERING REQUIREMENTS OF TERRITORIAL
SUBDIVISIONS.  IN SALSBURG THE COURT QUOTED AND REAFFIRMED THE
PRINCIPLES SET FORTH IN MISSOURI:  "(THERE IS NOTHING IN THE
CONSTITUTION TO PREVENT ANY STATE FROM ADOPTING ANY SYSTEM OF LAWS OR
JUDICATURE IT SEES FIT FOR ALL OR ANY PART OF ITS TERRITORY.  IF THE
STATE OF NEW YORK, FOR EXAMPLE, SHOULD SEE FIT TO ADOPT THE CIVIL LAW
AND ITS METHOD OF PROCEDURE FOR NEW YORK CITY AND THE SOURROUNDING
COUNTIES, AND THE COMMON LAW AND ITS METHOD OF PROCEDURE FOR THE REST
OF THE STATE, THERE IS NOTHING IN THE CONSTITUTION OF THE UNITED STATES
TO PREVENT ITS DOING SO.'"  346 U.S.,AT 551. 

THE COURT IN MISSOURI V. LEWIS ALSO STATED:  "WHERE PART OF A STATE
IS THICKLY SETTLED, AND ANOTHER PART HAS BUT FEW INHABITANTS, IT MAY BE
DESIRABLE TO HAVE DIFFERENT SYSTEMS OF JUDICATURE FOR THE TWO PORTIONS,
- TRIAL BY JURY IN ONE, FOR EXAMPLE, AND NOT IN THE OTHER.  LARGE
CITIES MAY REQUIRE A MULTIPLICATION OF COURTS AND A PECULIAR
ARRANGEMENT OF JURISDICTIONS.  IT WOULD BE AN UNFORTUNATE RESTRICTION
OF THE POWERS OF THE STATE GOVERNMENT IF IT COULD NOT, IN ITS
DISCRETION, PROVIDE FOR THESE VARIOUS EXIGENCIES."  101 U.S.,AT 32. 
SEE ALSO OHIO V. AKRON PARK DISTRICT, 281 U.S. 74, 81 (1930); OCAMPO V.
UNITED STATES, 234 U.S. 91, 98-99 (1914). 

THE DISPROPORTIONATE NUMBER OF MISDEMANOR CASES THAT NOW CLOG NEW
YORK CITY COURTS, SEE PART III, INFRA, CREATES A DIFFERENCE OF A
MAGNITUDE THAT MORE THAN JUSTIFIES THE DIFFERENCES IN TREATMENT BETWEEN
CITY AND NON-CITY DEFENDANTS. 

/9/  THE COURT'S CONCLUSIONS FROM THE HISTORICAL MATERIALS, BY ITS
OWN ADMISSION, CAN HARDLY BE CHARACTERIZED AS SOLID.  THE ENTIRE
ARGUMENT SEEMS TO FLOW FROM THE FACT THAT THE SENATE COMMITTEE
SUBSTITUTED THE PRESENT LANGUAGE OF THE SIXTH AMENDMENT FOR THE MORE
SPECIFIC HOUSE VERSION THAT INCORPORATED THE UNANIMITY REQUIREMENT AND
EXPRESSLY TIED THE JURY TO "OTHER ACCUSTOMED REQUISITES."  BUT THE
MEANING OF THIS CHANGE IS WHOLLY SPECULATIVE, FOR, APART FROM THE
"VICINAGE" REQUIREMENT, THERE IS NO CONCRETE EVIDENCE CITED BY THE
COURT TO SHOW THAT THE SENATE OPPOSED THE MORE LIKELY FEATURES OF THE
MADISON VERSION ADOPTED BY THE HOUSE.  IN THE CONTEXT OF AN AMENDMENT
NOTABLE FOR ITS SPARSENESS OF LANGUAGE, A MORE LIKELY EXPLANATION OF
THE SENATE'S ACTION IS THAT IT WAS STREAMLINING THE MADISON VERSION ON
THE ASSUMPTION THAT THE MOST PROMINENT FEATURES OF THE JURY WOULD BE
PRESERVED AS A MATTER OF COURSE.  THIS INTERPRETATION OF THE EVENTS IS
SUPPORTED BY THE FACT THAT THE ONLY SPECIFICALLY OBJECTIONABLE FEATURE
OF THE COMMON-LAW JURY-- THE VICINAGE REQUIREMENT-- WAS PRE-EMPTED BY
LANGUAGE PROVIDING FOR A TRIAL BY A JURY OF THE DISTRICT, THUS LEAVING
THE REMAINING ATTRIBUTES UNDEFINED IN FACE OF THE DISTINCT EXPECTATION
THAT THOSE CHARGED WITH INTERPRETATION WOULD LOOK TO THE COMMON LAW. 
NOR IS THIS EXPLANATION RENDERED LESS FORCEFUL BY THE FACT, NOTED BY
THE COURT, THAT "RECEPTION" OF THE COMMON-LAW JURY DID NOT UNFAILINGLY
MEAN 12 IN EARLY COLONIAL TIMES.  AS THE COURT ITSELF ACKNOWLEDGES, THE
STATES THAT HAD CONSTITUTIONS IN 1787 PROVIDED FOR JURIES OF 12.  THE
COURT'S OTHER ARGUMENTS-- (1) THAT SIMPLE REFERENCE TO A JURY IN
ARTICLE III WAS NOT NECESSARILY THOUGHT TO MEAN TO THE FRAMERS A COMMON
LAW JURY IN LIGHT OF THE NEED FELT TO ADD THE AMENDMENTS AND MADISON'S
MORE ELABORATE PROPOSAL FOR THE SIXTH AMENDMENT; AND, (2) THAT THE
ALLUSION TO "COMMON LAW" IN THE SEVENTH AMENDMENT SUGGESTS THAT IT IS
NOT THE BACKDROP FOR THE SIXTH AMENDMENT JURY-- ARE TOO REMOTE TO
REQUIRE REJOINDER. 

/10/  WHILE I DISAGREED WITH THE COURT ON THESE OCCASIONS, MY
DIFFERENCES WITH THE MAJORITY WENT TO THE CONCLUSIONS THAT COULD
PROPERLY BE DRAWN FROM THE COMMON-LAW HISTORY OF THE WRIT AND THE
PRECEDENTS IN THIS COURT, NOT TO THE JURISPRUDENTIAL APPROACH THAT TOOK
HISTORY AS A POINT OF DEPARTURE. 

/11/  "BROADLY SPEAKING, TWO TYPES OF CONSTITUTIONAL CLAIMS COME
BEFORE THIS COURT.  MOST CONSTITUTIONAL ISSUES DERIVE FROM THE BROAD
STANDARDS OF FAIRNESS WRITTEN INTO THE CONSTITUTION . . .  SUCH
QUESTIONS, BY THEIR VERY NATURE, ALLOW A RELATIVELY WIDE PLAY FOR
INDIVIDUAL LEGAL JUDGMENT.  THE OTHER CLASS GIVES NO SUCH SCOPE.  FOR
THIS SECOND CLASS OF CONSTITUTIONAL ISSUES DERIVED FROM VERY SPECIFIC
PROVISIONS OF THE CONSTITUTION . . . THEY WERE DEFINED BY HISTORY. 
THEIR MEANING WAS SO SETTLED BY HISTORY THAT DEFINITION WAS SUPERFLUOUS
. . ."  328 U.S.,AT 321. 

/12/  THE SIGNIFICANCE OF THIS PRONOUNCEMENT CANNOT BE MINIMIZED. 
THE HOLDING THAT RETRIAL BY A JURY OF EIGHT WAS AN EX POST FACTO LAW IS
PERFORCE BUILT UPON THE CONCLUSION THAT THE JURY OF 12 WAS A RIGHT OF
SUBSTANCE.  IF THE RIGHT WERE MERELY A PROCEDURE MANDATED BY STATUTE,
IT WOULD NOT HAVE REQUIRED THE EX POST FACTO HOLDING. 

/13/  THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDE FOR A JURY OF
12, FED. RULE CRIM. PROC. 23, AND AS RECENTLY AS LAST YEAR LOWER
FEDERAL COURTS HAVE ASSUMED THIS COURT'S COMMITMENT TO THE UNANIMOUS
VERDICT OF 12.  UNITED STATES V. FIORAVANTI, 412 F.2D 407, 418 (C.A. 3D
CR. 1969); WILLIAMS V. UNITED STATES, 332 F.2D 36 (C.A. 7TH CIR. 1964);
SEE ALSO, E.G., UNITED STATES V. VIRGINIA ERECTION CORP., 335 F.2D 868,
870 (C.A. 4TH CIR. 1964); UNITED STATES V. GOLDBERG, 330 F.2D 30, 42
(C.A. 3D CIR. 1964); ROGERS V. UNITED STATES, 319 F.2D 5 (C.A. 7TH CIR.
1963); FOURNIER V. GONZALEZ, 269 F.2D 26 (C.A. 1ST CIR. 1959); BILLECI
V. UNITED STATES, 87 U.S.APP.D.C. 274, 184 F.2D 394 (1950); HORNE V.
UNITED STATES, 264 F.2D 40 (C.A. 5TH CIR. 1959); HIBDON V. UNITED
STATES, 204 F.2D 834 (C.A. 6TH CIR. 1953). 

/14/  IN ADDITION TO SEPARATE OPINIONS NOTED IN THE TEXT, SEE, E.G.,
POE V. ULLMAN, 367 U.S. 497, 522, AT 539-545 (1961) (DISSENTING
OPINION); GRISWOLD V. CONNECTICUT, 381 U.S. 479, 499 (1965) (CONCURRING
IN THE JUDGMENT); LANZA V. NEW YORK, 370 U.S. 139, 147 (1962)
(CONCURRING OPINION); GIDEON V. WAINWRIGHT, 372 U.S. 335, 349 (1963)
(CONCURRING OPINION); MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 80
(1964) (CONCURRING IN THE JUDGMENT); BARHER V. PAGE, 390 U.S. 719, 726
(1968) (CONCURRING OPINION); BERGER V. NEW YORK, 388 U.S. 41, 89 (1967)
(DISSENTING OPINION); CHIMEL V. CALIFORNIA, SUPRA; ASHE V. SWENSON, 397
U.S. 436, 448 (1970) (CONCURRING OPINION); COLEMAN V. ALABAMA, ANTE, P.
19 (1970) (SEPARATE OPINION); BLOOM V. ILLINOIS, 391 U.S. 194, 215
(1968) (DISSENTING OPINION); WASHINGTON V. TEXAS, 388 U.S. 14, 23
(1967) (CONCURRING IN THE RESULT); DICKEY V. FLORIDA, 398 U.S. 30, 38
(1970) (CONCURRING OPINION). 

/15/  THE RIGHT TO COUNSEL APPEARS NOT TO HAVE BEEN EXPLICITLY
"INCORPORATED," ALTHOUGH GILBERT V. CALIFORNIA, 388 U.S. 263 (1967),
IMPLICITLY DOES SO.  GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963),
PURPORTED TO BE A DETERMINATION THAT "FUNDAMENTAL FAIRNESS" REQUIRES
THE STATE TO AFFORD TRIAL COUNSEL TO THE INDIGENT ACCUSED.  ID., AT
343.  ALTHOUGH I HAVE DISAGREED WITH PARTICULAR HOLDINGS LIKE GILBERT
V. CALIFORNIA, SUPRA, WHERE THE COURT HELD THAT THE STATES MUST ARRANGE
PRESENCE OF COUNSEL AT LINEUPS, SEE MR. JUSTICE WHITE'S SEPARATE
OPINION IN UNITED STATES V. WADE, 388 U.S. 218, 250 (1967), WHICH I
JOINED, THIS IS BECAUSE THOSE DECISIONS INCORRECTLY REQUIRE, IN MY
VIEW, COUNSEL IN CIRCUMSTANCES WHERE HIS PRESENCE IS NOT NECESSARY
UNDER EITHER THE SIXTH AMENDMENT OR THE DUE PROCESS CLAUSE.  SEE MY
SEPARATE OPINION IN COLEMAN V. ALABAMA, DECIDED TODAY, ANTE, P. 19. 

/16/  THE PRESIDENT OF THE LEGAL AID SOCIETY IN NEW YORK CITY
RECENTLY REPORTED THAT 49% OF THE SOCIETY'S CLIENTS WHO WERE TRIED IN
THE NEW YORK CITY CRIMINAL COURT IN 1967 (WITHOUT A JURY) WERE
ACQUITTED; THERE WERE 3,023 CONVICTIONS AFTER TRIAL, 2,678 ACQUITTALS
AFTER TRIAL.  SPEECH AT ANNUAL JUDICIAL CONFERENCE OF THE SECOND
JUDICIAL CIRCUIT OF THE UNITED STATES, LAKE PLACID, N.Y., SEPT. 14,
1968, REPRINTED IN N.Y.L.J., SEPTEMBER 25, 1968, P. 4. 

/17/  SEE THE COURT'S OPINION, ANTE, AT 99 N. 45. 

/18/  SEE APPENDIX TO THIS OPINION. 

/19/  SEE IBID. 

/20/  SEE IBID. 

/21/  SEE IBID. 

/22/  "EXCEPT IN THAT CLASS OR GRADE OF OFFENCES CALLED PETTY
OFFENCES, WHICH, ACCORDING TO THE COMMON LAW, MAY BE PROCEEDED AGAINST
SUMMARILY . . . THE GUARANTEE OF AN IMPARTIAL JURY TO THE ACCUSED IN A
CRIMINAL PROSECUTION, CONDUCTED . . . BY . . . THE UNITED STATES,
SECURES TO HIM THE RIGHT TO ENJOY THAT MODE OF TRIAL FROM THE FIRST
MOMENT, AND IN WHATEVER COURT, HE IS PUT ON TRIAL FOR THE OFFENCE
CHARGED . . . TO ACCORD TO THE ACCUSED A RIGHT TO BE TRIED BY A JURY,
IN AN APPELLATE COURT, AFTER HE HAS BEEN ONCE FULLY TRIED OTHERWISE
THAN BY A JURY, IN THE COURT OF ORIGINAL JURISDICTION . . . DOES NOT
SATISFY THE REQUIREMENTS OF THE CONSTITUTION."  127 U.S.,AT 557. 

/23/  SEE, E.G., H. KALVEN & H. ZEISEL, THE AMERICAN JURY 5 (1966);
COMMENT, SHOULD JURY VERDICTS BE UNANIMOUS IN CRIMINAL CASES?, 47
ORE.L.REV.  417 (1968). 

      APPENDIX TO OPINION OF HARLAN, J. 

A. NONUNANIMOUS VERDICT FOR FELONY-TYPE OFFENSES 

1.  LOUISIANA:  LA. CRIM. PROC., CODE., ART. 782.  (VERDICT OF NINE
OUT OF 12 IN CASES NECESSARILY PUNISHED BY HARD LABOR.) 

2.  OREGON:  CONSTITUTION, ART. I, SEC. 11; ORE.  REV.  STAT. SECS.
136.330, 136.610 (1967) (FIVE OUT OF SIX SUFFICIENT FOR VERDICT IN A
CIRCUIT COURT EXCEPT IN CAPITAL CASES). 

3.  TEXAS:  TEX. CODE CRIM. PROC., ART. 36.29 (1966) (PERMITTING
VERDICT BY LESS THAN 12 WHEN JUROR IS INCAPACITATED). 

B. NON-JURY TRIAL IN CASES PUNISHABLE BY MORE THAN ONE YEAR'S
IMPRISONMENT WITH DE NOVO REVIEW 

1.  MARYLAND:  CONSTITUTION, DECLARATION OF RIGHTS, ARTS. 5, 21; MD.
ANN. CODE, ART. 51, SEC. 18, ART. 52, SEC. 13 (1968), ART. 66-1/2,
SECS. 48, 74, 75, 216, 325 (1967), SEC. 327 (SUPP. 1969); MD. RULES
PROC. 743, 758.  (TRIAL BY JURY APPEARS NOT TO BE AFFORDED IN MOTOR
VEHICLES CASES IN THE FIRST INSTANCE EVEN THOUGH SOME MOTOR VEHICLE
OFFENSES CARRY A PENALTY OF UP TO FIVE YEARS' IMPRISONMENT.) 

2.  NORTH CAROLINA:  CONSTITUTION, ART. I, SEC. 13; STATE V.
SHERRON, 4 N.C.APP.  386, 166 S.E.2D 836 (1969); N.C. GEN. STAT. SECS.
7A-272(A), 7A-196(B), 14-3 (1969).  (DISTRICT COURTS HAVE JURISDICTION
TO TRY, WITHOUT A JURY, ALL OFFENSES BELOW THE GRADE OF FELONY.  SUCH
OFFENSES ARE DENOMINATED PETTY MISDEMEANORS AND THE MAXIMUM SENTENCE
WHICH MAY BE IMPOSED IS A FINE OR TWO YEARS'  IMPRISONMENT.) 

3.  PENNSYLVANIA:  CONSTITUTION, SCHED.  ART.  5, SEC. 16(R)(III)
(OFFENSES TRIED IN THE MUNICIPAL DIVISION OF THE COURT OF COMMON PLEAS
CARRYING PENALTIES UP TO TWO YEARS' IMPRISONMENT AND INDICTABLE
OFFENSES UNDER THE MOTOR VEHICLE LAWS FOR WHICH PUNISHMENT DOES NOT
EXCEED THREE YEARS' IMPRISONMENT). 

C. 6-MAN JURY FOR MISDEMEANORS 

1.  ALASKA:  CONSTITUTION, ART. I, SEC. 11; ALASKA STAT. SECS.
11.75.030 (1962), 22.15.060, 22.15.150 (1967).  (JURY OF SIX IN
DISTRICT MAGISTRATE'S COURTS, WHICH HAVE JURISDICTION OF MISDEMEANORS,
PUNISHABLE BY UP TO ONE YEAR'S IMPRISONMENT.) 

2.  GEORGIA:  CONSTITUTION, ART. I, SEC. 2-150, ART. VI, SEC. 2
5101; GA. CODE ANN. SEC. 27-2506 (SUPP. 1968); GA. LAWS 1890-1891, PP.
935, 939, 942.  (IN COUNTY CRIMINAL COURTS, WHICH HAVE JURISDICTION OF
MISDEMEANORS-- CASES IN WHICH THE MAXIMUM SENTENCE IMPOSABLE IS A FINE
OF UP TO $100 OR IMPRISONMENT FOR A TERM OF UP TO 12 MONTHS OR BOTH-- A
DEFENDANT MAY DEMAND A JURY TRIAL.  DEPENDING UPON THE COUNTY, HOWEVER,
A JURY RANGES IN SIZE FROM FIVE TO 12 PERSONS.  THE CRIMINAL COURT OF
ATLANTA, FOR EXAMPLE, TRIES MISDEMEANORS WITH JURIES OF FIVE.  IN HALL
COUNTY THE SAME CRIMES ARE TRIED BY JURIES OF 12.) 

3.  IOWA:  CONSTITUTION, ART. 1, SEC. 9; IOWA CODE SECS. 602.15,
602.25, 602.39, 687.7 (1966).  (JURY OF SIX IN MUNICIPAL COURTS, WHICH
HAVE JURISDICTION OF MISDEMEANORS, CARRYING A MAXIMUM FINE OF $500 OR
IMPRISONMENT FOR ONE YEAR OR BOTH.) 

4.  KENTUCKY:  CONSTITUTION, SECS. 7, 11, 248; KY. REV. STAT. SECS.
25.010, 25.014, 26.400, 29.015 (1963).  (MISDEMEANORS, CARRYING A
MAXIMUM PENALTY OF $500 OR 12 MONTHS'  IMPRISONMENT, ARE TRIED IN
INFERIOR COURTS BY A JURY OF SIX.  CIRCUIT COURTS, WHERE A 12-MEMBER
JURY IS USED, HAVE CONCURRENT JURISDICTION.)     5.  MISSISSIPPI:
CONSTITUTION, ART. 3, SEC. 31, ART. 6, SEC. 171; MISS.  CODE ANN. SECS.
1831, 1836, 1839 (1956).  (JURISDICTION OF CRIMES PUNISHABLE IN THE
COUNTY JAIL MAY BE TRIED IN THE JUSTICE OF THE PEACE COURTS BY A SIX
MAN JURY.  MANY SUCH CRIMES HAVE A ONE-YEAR MAXIMUM TERM.  CIRCUIT
COURTS HAVE CONCURRENT JURISDICTION.  SUCH CRIMES INCLUDE, E.G.,
OFFENSES INVOLVING CORRUPTION IN ELECTIONS (MISS.  CODE ANN. SECS.
2031, 2032), ESCAPE OR AIDING ESCAPE OF PRISONERS (SECS. 2133, 2134,
2135, 2141), PUBLIC OFFICERS' INTEREST IN CONTRACTS (SECS. 2301, 2302),
AND TRADE MARKS (SECS. 2390, 2391).) 

6.  OKLAHOMA:  CONSTITUTION, ART. 2, SECS. 19, 20; OKLA. STAT. ANN.,
TIT. 11, SECS. 958.3, 958.6 (SUPP. 1969-1970), TITL 21, SEC. 10
(1958).  (IN MISDEMEANOR CASES-- THOSE IN WHICH A SENTENCE OF UP TO ONE
YEAR'S IMPRISONMENT MAY BE IMPOSED-- IN COURTS OF RECORD, A DEFENDANT
MAY DEMAND A JURY OF 12; NINE MEMBERS OF THE JURY MAY RENDER A
VERDICT.  FOR VIOLATIONS OF CITY ORDINANCES TRIED IN COURTS NOT OF
RECORD, THE DEFENDANT MAY DEMAND SIX JURORS, FIVE OF WHOM MAY RENDER A
VERDICT.) 

7.  OREGON:  CONSTITUTION, ART. I, SEC. 11; CONSTITUTION OF 1857,
ART. VII, SEC. 12; ORE.  REV.  STAT. SECS. 5.110 (1965), COURTS, WHICH
HAVE JURISDICTION OF ALL CRIMES EXCEPT THOSE CARRYING THE DEATH PENALTY
OR LIFE IMPRISONMENT.  JURY OF SIX IN DISTRICT COURTS, WHICH HAVE
JURISDICTION OF ALL MISDEMEANORS, PUNISHABLE BY ONE YEAR'S
IMPRISONMENT.) 

8.  VIRGINIA:  CONSTITUTION, ART. I, SEC. 8; VA. CODE ANN. SECS.
16.1-123, 16.1-124, 16.1-126, 16.1-129, 16.1-132, 16.1-136, 18.1-6
(1960), 18.1-9 (SUPP. 1968), 19.1-206 (1960).  (IN COURTS NOT OF
RECORD, WHICH HAVE JURISDICTION OF MISDEMEANORS, PUNISHABLE BY UP TO
ONE YEAR'S IMPRISONMENT, CHARGES ARE TRIED WITHOUT A JURY.  THE
DEFENDANT MAY APPEAL AS OF RIGHT TO THE CIRCUIT COURT, WHERE HE
RECEIVES A TRIAL DE NOVO.  ALL TRIALS IN THE CIRCUIT COURT OF OFFENSES
NOT FELONIOUS, WHETHER IN THE FIRST INSTANCE OR ON APPEAL, ARE WITH
FIVE JURORS.) 

D. NON-JURY TRIAL FOR MISDEMEANORS SUBJECT TO DE NOVO REVIEW 

1. ARKANSAS:  CONSTITUTION, ART. 2, SEC. 10; ARK. STAT. ANN. SECS.
22-709, 22-737, 26-301 (1962), 41-106, 43-1901, 43-1902, 44-115, 44
166, 44-509 (1964); SEE GENERALLY GREENEBAUM, ARKANSAS' JUDICIARY:  ITS
HISTORY AND STRUCTURE, 18 ARK.L.REV.  152 (1964).  (NO JURY PROVIDED IN
MUNICIPAL COURTS, WHICH HAVE JURISDICTION OF MISDEMEANORS CARRYING A
MAXIMUM PENALTY OF ONE YEAR'S IMPRISONMENT.  UPON CONVICTION, THE
DEFENDANT MAY APPEAL TO THE CIRCUIT COURT WHERE HE IS ENTITLED TO A
TRIAL DE NOVO BEFORE A COMMON-LAW JURY.) 

2.  MAINE:  CONSTITUTION, ART. I, SECS. 6, 7; ME. REV. STAT. ANN.,
TIT. 4, SEC. 152 (SUPP. 1970), TIT. 15, SECS. 1, 451 (1965); ME. RULES
CRIM. PROC. 23(B), 31(A); SPRAGUE V. ANDROSCOGGIN COUNTY, 104 ME. 352,
71 A. 1090 (1908); LETTER DATED DEC. 17, 1968, FROM MAINE ATTORNEY
GENERAL'S OFFICE TO NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE.  (MAINE
DISTRICT COURTS TRY MISDEMEANORS-- CRIMES PUNISHABLE BY A SENTENCE OF
UP TO ONE YEAR-- WITHOUT A JURY.  A DEFENDANT MAY APPEAL HIS CONVICTION
TO THE SUPERIOR COURT, HOWEVER, WHERE HE IS ENTITLED TO A COMMON-LAW
JURY.) 

3.  NEW HAMPSHIRE:  CONSTITUTION, PT. 1, ARTS. 15, 16, PT. 2, ART.
77; N.H. REV. STAT. ANN. SEC. 599:1 (SUPP. 1969), SECS. 502-A:11, 502
A:12, 502:18 (1968); STATE V. DESPRES, 107 N.H. 297, 220 A.2D 758
(1966).  (DISTRICT AND MUNICIPAL COURTS TRY, WITHOUT A JURY,
MISDEMEANORS CARRYING A MAXIMUM TERM OF IMPRISONMENT OF ONE YEAR.  THE
DEFENDANT IN THESE COURTS HAS AN ABSOLUTE RIGHT OF APPEAL TO THE
SUPERIOR COURT WHERE HE MAY DEMAND A JURY OF 12 IN HIS TRIAL DE NOVO.) 

4.  RHODE ISLAND:  CONSTITUTION, ART. 1, SECS. 10, 15; R.I. GEN.
LAWS ANN. SECS. 12-3-1, 12-7-1, 12-22-1, 12-22-9 (1956); STATE V.
NOLAN, 15 R.I. 529, 10 A. 481 (1887).  (THERE ARE NO JURIES IN THE
DISTRICT COURTS, WHICH HAVE JURISDICTION OF MISDEMEANORS-- CRIMES
PUNISHABLE BY A FINE OF UP TO $500 OR IMPRISONMENT FOR UP TO ONE YEAR
OR BOTH.  A DEFENDANT MAY APPEAL HIS CONVICTION TO THE SUPERIOR COURT
WHERE HE IS ENTITLED TO A TRIAL DE NOVO BEFORE A JURY OF 12.) 

5.  VIRGINIA:  CONSTITUTION, ART. I, SEC. 8; VA. CODE ANN. SECS.
16.1-123, 16.1-124, 16.1-126, 16.1-129, 16.1-132, 16.1-136, 18.6-6
(1960), 18.9-9 (SUPP. 1968).  (IN COURTS NOT OF RECORD, WHICH HAVE
JURISDICTION OF MISDEMEANORS, PUNISHABLE BY UP TO ONE YEAR'S
IMPRISONMENT, CHARGES ARE TRIED WITHOUT A JURY.  THE DEFENDANT MAY
APPEAL AS OF RIGHT TO THE CIRCUIT COURT, WHERE HE RECEIVES A TRIAL DE
NOVO WITH FIVE JURORS). 

MR. JUSTICE STEWART, DISSENTING IN NO. 188, ANTE, P. 66, AND
CONCURRING IN THE RESULT IN NO. 927. 

I SUBSTANTIALLY AGREE WITH THE SEPARATE OPINION MR. JUSTICE HARLAN
HAS FILED IN THESE CASES-- AN OPINION THAT FULLY DEMONSTRATES SOME OF
THE BASIC ERRORS IN A MECHANISTIC "INCORPORATION" APPROACH TO THE
FOURTEENTH AMENDMENT.  I CANNOT SUBSCRIBE TO HIS OPINION IN ITS
ENTIRETY, HOWEVER, IF ONLY FOR THE REASON THAT IT RELIES IN PART UPON
CERTAIN DISSENTING AND CONCURRING OPINIONS IN PREVIOUS CASES IN WHICH I
DID NOT JOIN. 

THE "INCORPORATION" THEORY POSTULATES THE BILL OF RIGHTS AS THE
SUBSTANTIVE METES AND BOUNDS OF THE FOURTEENTH AMENDMENT.  I THINK THIS
THEORY IS INCORRECT AS A MATTER OF CONSTITUTIONAL HISTORY, AND THAT AS
A MATTER OF CONSTITUTIONAL LAW IT IS BOTH STULTIFYING AND UNSOUND.  IT
IS, AT BEST, A THEORY THAT CAN LEAD THE COURT ONLY TO A FOURTEENTH
AMENDMENT DEAD END.  AND, AT WORST, THE SPELL OF THE THEORY'S LOGIC
COMPELS THE COURT EITHER TO IMPOSE INTOLERABLE RESTRICTIONS UPON THE
CONSTITUTIONAL SOVEREIGNTY OF THE INDIVIDUAL STATES IN THE
ADMINISTRATION OF THEIR OWN CRIMINAL LAW, OR ELSE INTOLERABLY TO RELAX
THE EXPLICIT RESTRICTIONS THAT THE FRAMERS ACTUALLY DID PUT UPON THE
FEDERAL GOVERNMENT IN THE ADMINISTRATION OF CRIMINAL JUSTICE.  ALL
THIS, AND MUCH MORE, IS ELABORATED IN MR. JUSTICE HARLAN'S SEPARATE
OPINION, AND I WOULD AFFIRM THE JUDGMENTS IN BOTH NO. 188 AND NO. 927
FOR SUBSTANTIALLY THE REASONS HE STATES.  /1/ 

THE ARCHITECT OF THE CONTEMPORARY "INCORPORATION" APPROACH TO THE
FOURTEENTH AMENDMENT IS, OF COURSE, MR. JUSTICE BLACK.  SEE ADAMSON V.
CALIFORNIA, 332 U.S. 46, 68 (DISSENTING OPINION).  /2/  AND THE
SEPARATE OPINION MY BROTHER BLACK HAS FILED TODAY IN NO. 927 COULD
SERVE AS EXHIBIT A TO ILLUSTRATE THE EXTRAORDINARY HABITS OF THOUGHT
INTO WHICH SOME OF US HAVE FALLEN IN CONDITIONED REFLEX TO THAT
ERRONEOUS CONSTITUTIONAL DOCTRINE.  "INCORPORATION" HAS BECOME SO
PAVLOVIAN THAT MY BROTHER BLACK BARELY MENTIONS THE FOURTEENTH
AMENDMENT IN THE COURSE OF AN 11-PAGE OPINION DEALING WITH THE
PROCEDURAL RULE THE STATE OF FLORIDA HAS ADOPTED FOR CASES TRIED IN
FLORIDA COURTS UNDER FLORIDA'S CRIMINAL LAWS.  /3/  HIS OPINION RELIES
INSTEAD UPON THE "PLAIN AND OBVIOUS MEANING" OF THE "SPECIFIC WORDS" OF
THE FIFTH AMENDMENT AND OTHER "PROVISIONS OF THE BILL OF RIGHTS" WHICH,
TOGETHER WITH "THE HISTORY SURROUNDING THE ADOPTION OF THOSE
PROVISIONS," MAKE CLEAR THAT "(THE FRAMERS . . . DESIGNED" THOSE RIGHTS
"TO SHIELD THE DEFENDANT AGAINST STATE POWER." 

THOUGH I ADMIRE THE RHETORIC, I SUBMIT WITH ALL DEFENDENCE THAT
THOSE STATEMENTS ARE, TO QUOTE THEIR AUTHOR, "PLAINLY AND SIMPLY WRONG
AS A MATTER OF FACT AND LAW . . ."  IF THE CONSTITUTION FORBIDS THE
FLORIDA ALIBI-DEFENSE PROCEDURE, IT IS BECAUSE OF THE FOURTEENTH
AMENDMENT, AND NOT BECAUSE OF EITHER THE "SPECIFIC WORDS" OF THE BILL
OF RIGHTS OR "THE HISTORY SURROUNDING" THEIR ADOPTION.  FOR AS EVERY
SCHOOLBOY KNOWS, THE FRAMERS "DESIGNED" THE BILL OF RIGHTS NOT AGAINST
"STATE POWER," BUT AGAINST THE POWER OF THE FEDERAL GOVERNMENT.  /4/ 

SURELY MR. JUSTICE HARLAN IS RIGHT WHEN HE SAYS IT IS TIME FOR THE
COURT TO FACE UP TO REALITY. 

/1/  LIKE MR. JUSTICE HARLAN, I JOIN PART I OF THE COURT'S OPINION
IN NO. 927, RELATING TO THE "ALIBI" ISSUE. 

/2/  I HAVE HAD OCCASION TO STATE ELSEWHERE MY OWN UNDERSTANDING,
FOR WHATEVER IT IS WORTH.  OF THE MOTIVATIONAL ORIGINS OF FOURTEENTH
AMENDMENT "INCORPORATION": 

"SHORTLY BEFORE JUSTICE JACKSON CAME TO THE COURT, SOME OF ITS THEN
MORE JUNIOR MEMBERS HAD EMBRACED THE COMFORTING THEORY THAT THE
FOURTEENTH AMENDMENT'S SUBSTANTIVE IMPACT UPON THE STATES COULD BE
EXACTLY MEASURED BY THE SPECIFIC RESTRICTIONS THAT THE FIRST EIGHT
AMENDMENTS IMPOSED UPON THE NATIONAL GOVERNMENT.  I CALL THIS A
'COMFORTING' THEORY, BECAUSE, FOR CRITICS OF THE OLD COURT'S SUBJECTIVE
APPROACH TO DUE PROCESS, IT WAS A THEORY THAT APPEARED TO GIVE THE
FOURTEENTH AMENDMENT OBJECTIVE CONTENT AND DEFINABLE SCOPE." 
(FOOTNOTES OMITTED.)  P. STEWART, ROBERT H. JACKSON'S INFLUENCE ON
FEDERAL-STATE RELATIONSHIPS, IN MR. JUSTICE JACKSON, FOUR LECTURES IN
HIS HONOR 57, 76 (1969). 

/3/  A WORTHY CANDIDATE FOR NOMINATION AS EXHIBIT B IS THE SEPARATE
OPINION FILED TODAY IN COLEMAN V. ALABAMA, ANTE, P. 14, BY MY BROTHER
DOUGLAS.  IN DEALING WITH THE PROCEDURE FOLLOWED BY ALABAMA IN THE
ADMINISTRATION OF ALABAMA CRIMINAL LAW, MY BROTHER'S OPINION ADVISES US
THAT "IT IS THE SIXTH AMENDMENT THAT CONTROLS . . ."  AND THIS
STATEMENT IS MADE IN THE NAME OF "STRICT CONSTRUCTION OF THE
CONSTITUTION". 

/4/  THIS IS NOT TO SAY THAT I WOULD AGREE THAT THE FIFTH AMENDMENT
OR ANY OTHER PROVISIONS OF THE BILL OF RIGHTS WOULD RENDER
UNCONSTITUTIONAL A FEDERAL ALIBI PROCEDURE SIMILAR TO FLORIDA'S. SEE N.
1, SUPRA. 

RICHARD KANNER ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

JESSE J. MCCRARY, JR., ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE EARL FAIRCLOTH,
ATTORNEY GENERAL, AND RONALD W. SABO, ASSISTANT ATTORNEY GENERAL. 

JACK GREENBERG AND MICHAEL MELTSNER FILED A BRIEF FOR VIRGIL JENKINS
AS AMICUS CURIAE URGING REVERSAL. 
..END :





















ILLINOIS V. MISSOURI, 399 U.S. 146 


       ILLINOIS V. MISSOURI

        DECREE

NO. 18, ORIG.  DECREE ENTERED JUNE 22, 1970 


THE COURT HAVING REFERRED THIS CASE TO A SPECIAL MASTER WHO HAS FILED
HIS REPORT, AND THE PARTIES HAVING AGREED AS TO THE FORM OF THE DECREE,
THE FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE HEREBY ADOPTED, AND 

IT IS ORDERED, ADJUDGED, AND DECREED THAT: 

(1) THE BOUNDARY LINE BETWEEN THE STATE OF ILLINOIS AND MISSOURI FOR
THE GEOGRAPHICAL AREA INVOLVED IN THIS ACTION IS HEREBY DETERMINED AND
DECREED TO CONSIST OF THE FOLLOWING LEGAL DESCRIPTION: 

     BEGINNING AT A POINT IN PRESENT CENTERLINE OF THE MISSISSIPPI

  RIVER AT THE INTERSECTION OF THE CENTERLINE OF THE OLD

  MISSISSIPPI RIVER SAID POINT BEING DESIGNATED AS THE

  SOUTHEASTERLY CORNER OF KASKASKIA ISLAND; THENCE FOLLOWING THE

  CENTERLINE OF THE SLOUGH WHICH IS THE APPROXIMATE CENTERLINE OF

  THE OLD MISSISSIPPI RIVER, DESCRIBED MORE PARTICULARLY BY THE

  FOLLOWING COURSES AND DISTANCES:  S 39 DEGREES 30' W, 2100 FEET;

THENCE S 55 DEGREES 30' W, 900 FEET; THENCE S 34 DEGREES 30' W,

  850 FEET; THENCE N 83 DEGREES 00' W, 500 FEET; THENCE S 61

  DEGREES 00' W, 1000 FEET; THENCE S 42 DEGREES 30' W, 2500 FEET;

  THENCE S 37 DEGREES 00' W, 4000 FEET; THENCE S 45 DEGREES 00' W,

  2000 FEET; THENCE S 56 DEGREES 30' W, 4600 FEET; THENCE S 63

  DEGREES 00' W, 2150 FEET; THENCE S 79 DEGREES 30' W, 1525 FEET;

  THENCE N 86 DEGREES 30' W, 4500 FEET; THENCE N 70 DEGREES 00' W,

  5050 FEET; THENCE N 57 DEGREES 30' W, 3850 FEET; THENCE N 46

  DEGREES 00' W, 1550 FEET; THENCE N 24 DEGREES 00' W, 5650 FEET;

THENCE N 39 DEGREES 00' W, 1800 FEET; THENCE N 17 DEGREES 00' W,

  1900 FEET; THENCE N 25 DEGREES 30' W, 3150 FEET; THENCE N 32

  DEGREES 00' W, 1580 FEET; THENCE N 4 DEGREES 30' W, 3250 FEET;

  THENCE N 53 DEGREES 45' E, 3300 FEET; THENCE N 69 DEGREES 00' E,

  1050 FEET; THENCE 19 DEGREES 00' E, 2350 FEET THENCE N 75 DEGREES

  00' E, 350 FEET TO A POINT AT THE NORTHWEST CORNER OF KASKASKIA

  ISLAND; THENCE S 47 DEGREES 00' E, 250 FEET; THENCE N 81 DEGREES

  00' E, 1050 FEET; THENCE S 78 DEGREES 00' E, 600 FEET; THENCE N

88 DEGREES 45' E, 1551 FEET; THENCE N 70 DEGREES 45' E, 709 FEET;

  THENCE N 48 DEGREES 30' E, 2986 FEET; THENCE N 51 DEGREES 45' E,

  627 FEET; THENCE N 81 DEGREES 45' E, 990 FEET; THENCE N 62

  DEGREES 45' E, 495 FEET; THENCE N 40 DEGREES 00' E, 2937 FEET;

  THENCE N 28 DEGREES 00' E, 528 FEET; THENCE N 04 DEGREES 00' E,

  429 FEET; THENCE N 12 DEGREES 00' W, 759 FEET; THENCE N 6 DEGREES

  00' E 412 FEET; THENCE N 33 DEGREES 00' E, 264 FEET; TO A POINT

  WHICH INTERSECTS THE CENTERLINE OF A SLOUGH AT THE SOUTH SIDE OF

BEAVER ISLAND; THENCE ALONG THE CENTERLINE OF SAID SLOUGH S 85

  DEGREES 00' W, 924 FEET; THENCE S 79 DEGREES 00' W, 775 FEET;

  THENCE N 88 DEGREES 00' W, 1452 FEET; THENCE N 23 DEGREES 00' W,

  825 FEET; THENCE N 20 DEGREES 00' W, 3000 FEET TO THE CENTERLINE

  OF THE MISSISSIPPI RIVER. 

(2) IN INCIDENCE TO THE ESTABLISHMENT OF SUCH BOUNDARY LINE, AND
UPON MISSOURI'S DISCLAIMER HEREIN, THE TERRITORIAL AND SOVEREIGNTY
RIGHT CLAIMED BY ILLINOIS TO THE BODY OF LAND GIVEN IDENTIFICATION IN
THE EVIDENCE AS "KASKASKIA ISLAND" IS HEREBY CONFIRMED AS AGAINST
MISSOURI AND DECREED TO EXIST IN ILLINOIS. 

(3) IN FURTHER INCIDENCE TO THE BOUNDARY ESTABLISHMENT MADE, THE
TERRITORIAL AND SOVEREIGNTY RIGHT CLAIMED BY ILLINOIS TO THE BODY OF
LAND GIVEN IDENTIFICATION IN THE EVIDENCE AS "BEAVER ISLAND" IS HEREBY
CONFIRMED AS AGAINST MISSOURI AND DECREED TO EXIST IN ILLINOIS. 

(4) IN SIMILAR INCIDENCE, THE TERRITORIAL AND SOVEREIGNTY RIGHT
CLAIMED BY MISSOURI TO EACH OF THE TWO BODIES OF LAND GIVEN
IDENTIFICATION SEVERALLY IN THE EVIDENCE AS "COTTONWOODS" AND "ROTH
ISLAND" IS HEREBY SUSTAINED AS AGAINST ILLINOIS AND DECREED TO EXIST IN
MISSOURI. 

(5) THE BOUNDARY DESCRIPTION DECREED IN PARAGRAPH (1) HEREOF IS
TAKEN FROM ATTACHMENT "C" OF THE PARTIES' STIPULATION AS BEING AGREED
UPON BY THEM TO BE APPROPRIATE AND ACCURATE FOR DISPOSITIONAL USE IN
THE EVENT OF AND IN RELATION TO THE RESULT HERE REACHED.  THE BODIES OF
LAND AS TO WHICH ILLINOIS' RIGHTS ARE CONFIRMED IN PARAGRAPHS (2) AND
(3) HEREOF ARE LOCATED ON ILLINOIS' SIDE OF THE BOUNDARY LINE FIXED,
AND THOSE AS TO WHICH MISSOURI'S RIGHTS ARE SUSTAINED IN PARAGRAPH (4)
HEREOF ARE LOCATED UPON MISSOURI'S SIDE THEREOF, SO THAT NO SEPARATE
DESCRIPTION IS HERE NECESSARY AS TO ANY OF THESE BODIES IN ORDER TO
EFFECTUATE THE RIGHTS DECREED IN RESPECT TO THEM. 

(6) THE COSTS OF THE SUIT SHALL BE ASSESSED EQUALLY AGAINST THE
PARTIES. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE ENTRY OF THIS DECREE. 

WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, AND TERENCE F.
MACCARTHY, SPECIAL ASSISTANT ATTORNEY GENERAL, FOR PLAINTIFF. 

JOHN DANFORTH, ATTORNEY GENERAL OF MISSOURI, AND MERLE L.
SILVERSTEIN FOR DEFENDANT. 
..END :










PRICE V. GEORGIA, 398 U.S. 323 


       PRICE V. GEORGIA. 

        CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

        NO. 269.  ARGUED APRIL 27, 1970-- DECIDED JUNE 15, 1970. 


PETITIONER WAS TRIED FOR MURDER, FOUND GUILTY OF THE LESSER INCLUDED
OFFENSE OF VOLUNTARY MANSLAUGHTER, AND SENTENCED TO 10 TO 15 YEARS'
IMPRISONMENT.  FOLLOWING REVERSAL OF THAT CONVICTION ON APPEAL, HE WAS
RETRIED FOR MURDER, DESPITE HIS DOUBLE JEOPARDY CLAIM, AGAIN FOUND
GUILTY OF VOLUNTARY MANSLAUGHTER, AND SENTENCED TO 10 YEARS'
IMPRISONMENT.  THE GEORGIA COURT OF APPEALS AFFIRMED THE SECOND
CONVICTION, REJECTING, ON THE AUTHORITY OF BRANTLEY V. STATE, 132 GA.
573, 64 S.E. 676, AFF'D, 217 U.S. 284, PETITIONER'S CONTENTION THAT HIS
RETRIAL FOR MURDER CONSTITUTED DOUBLE JEOPARDY.  THE GEORGIA SUPREME
COURT DENIED CERTIORARI.  HELD: 

1.  THOUGH UNDER THE CONTINUING JEOPARDY PRINCIPLE (SEE GREEN V.
UNITED STATES, 355 U.S. 184, 189), PETITIONER COULD BE RETRIED FOR
VOLUNTARY MANSLAUGHTER, THE LESSER INCLUDED OFFENSE, HE COULD NOT,
UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT AS MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT, BE RETRIED AND
SUBJECTED TO THE HAZARD OF CONVICTION FOR MURDER, OF WHICH HE HAD BEEN
IMPLIEDLY ACQUITTED WHEN THE JURY RETURNED A VERDICT ON THE LESSER
INCLUDED OFFENSE BUT REFUSED TO RETURN A GUILTY VERDICT ON THAT GREATER
OFFENSE.  BRANTLEY, SUPRA, IS DEEMED OVERRULED BY THIS COURT'S
SUBSEQUENT DECISIONS.  PP. 326-330. 

2.  IN VIEW OF THE HAZARD OF CONVICTION OF MURDER IN THE SECOND
TRIAL AND THE POSSIBLE EFFECT UPON THE JURY OF THE MURDER CHARGE, THE
SECOND JEOPARDY WAS NOT HARMLESS ERROR.  PP. 331-332. 

3.  THE ISSUE WHETHER PETITIONER CAN BE RETRIED FOR VOLUNTARY
MANSLAUGHTER UNDER GEORGIA LAW IS TO BE RESOLVED ON REMAND.  P. 332. 

118 GA.APP.  207, 163 S.E.2D 243, REVERSED AND REMANDED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT TO CONSIDER THE POWER OF A STATE TO RETRY AN
ACCUSED FOR MURDER AFTER AN EARLIER GUILTY VERDICT ON THE LESSER
INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER HAD BEEN SET ASIDE BECAUSE
OF A TRIAL ERROR. 

PETITIONER WAS CHARGED WITH THE KILLING OF JOHNNIE MAE DUPREE IN AN
INDICTMENT FOR THE OFFENSE OF MURDER FILED IN THE SUPERIOR COURT OF
EFFINGHAM COUNTY, GEORGIA.  HE ENTERED A PLEA OF NOT GUILTY AND WAS
TRIED ON OCTOBER 17, 1962.  THE JURY RETURNED A VERDICT OF GUILTY TO
THE LESSER INCLUDED CRIME OF VOLUNTARY MANSLAUGHTER AND FIXED THE
SENTENCE AT 10 TO 15 YEARS IN THE STATE PENITENTIARY.  THE JURY'S
VERDICT MADE NO REFERENCE TO THE CHARGE OF MURDER. 

THE COURT OF APPEALS OF GEORGIA REVERSED THE CONVICTION BECAUSE OF
AN ERRONEOUS JURY INSTRUCTION AND ORDERED A NEW TRIAL.  PRICE V. STATE,
108 GA.APP.  581, 133 S.E.2D 916 (1963). 

ON OCTOBER 20, 1967, PETITIONER WAS AGAIN PLACED ON TRIAL FOR MURDER
UNDER THE ORIGINAL INDICTMENT.  BEFORE THE COMMENCEMENT OF THE SECOND
TRIAL PETITIONER ENTERED A PLEA OF AUTREFOIS ACQUIT, CLAIMING THAT TO
PLACE HIM AGAIN ON TRIAL FOR THE OFFENSE OF MURDER WOULD EXPOSE HIM TO
D&UBLE JEOPARDY IN VIEW OF THE VERDICT OF VOLUNTARY MANSLAUGHTER AT THE
INITIAL TRIAL.  THE TRIAL JUDGE REJECTED THE PLEA AND, AT THE CLOSE OF
THE TRIAL, INCLUDED INSTRUCTIONS ON THE OFFENSE OF MURDER IN HIS CHARGE
TO THE JURY SO THAT THE JURY COULD HAVE RENDERED A VERDICT OF GUILTY ON
THAT OFFENSE.  THAT JURY, LIKE THE FIRST, FOUND PETITIONER GUILTY OF
VOLUNTARY MANSLAUGHTER, AND THEN FIXED THE PENALTY AT 10 YEARS'
IMPRISONMENT. 

PETITIONER SOUGHT DIRECT REVIEW OF HIS SECOND CONVICTION IN THE
SUPREME COURT OF GEORGIA, /1/  BUT THAT COURT TRANSFERRED THE CASE TO
THE COURT OF APPEALS OF GEORGIA, DECLARING THAT "(ONLY QUESTIONS AS TO
THE APPLICATION OF PLAIN AND UNAMBIGUOUS PROVISIONS OF THE CONSTITUTION
OF THE UNITED STATES BEING INVOLVED, . . . THE CASE IS ONE FOR THE
CONSIDERATION OF THE COURT OF APPEALS . . . ."  PRICE V. STATE, 224 GA.
306, 307, 161 S.E.2D 825, 826 (1968). 

THE GEORGIA COURT OF APPEALS THEN HEARD THE APPEAL AND AFFIRMED THE
SECOND CONVICTION, REJECTING PETITIONER'S ARGUMENT, AMONG OTHERS, THAT
HIS RETRIAL FOR MURDER CONSTITUTED DOUBLE JEOPARDY.  PRICE V. STATE,
118 GA.APP.  207, 163 S.E.2D 243 (1968).  THE COURT OF APPEALS HELD
THAT IN BRANTLEY V. STATE, 132 GA. 573, 64 S.E. 676 (1909), AFF'D, 217
U.S. 284 (1910), THE GEORGIA SUPREME COURT HAD DECIDED THIS QUESTION
ADVERSELY TO PETITIONER.  THE COURT OF APPEALS THEN QUOTED FROM THE
BRANTLEY CASE'S SYLLABUS: 

"WHEN A PERSON HAS BEEN INDICTED FOR MURDER AND CONVICTED OF
VOLUNTARY MANSLAUGHTER, IF HE VOLUNTARILY SEEKS AND OBTAINS A NEW
TRIAL, HE IS SUBJECT TO ANOTHER TRIAL GENERALLY FOR THE OFFENSE CHARGED
IN THE INDICTMENT, AND UPON SUCH TRIAL HE CANNOT SUCCESSFULLY INTERPOSE
A PLEA OF FORMER ACQUITTAL OF THE CRIME OF MURDER, OR FORMER JEOPARDY
IN REGARD THERETO."  18 GA.APP.,AT 208, 163 S.E.2D,AT 244.  PETITIONER
SOUGHT A REHEARING, CONTENDING, AS HE CONTENDS HERE, THAT BRANTLEY WAS
NO LONGER CONTROLLING.  HE RELIED ON GREEN V. UNITED STATES, 355 U.S.
184 (1957), AND UNITED STATES EX REL. HETENYI V. WILKINS, 348 F.2D 844
(C.A. 2D CIR. 1965), CERT. DENIED, 383 U.S. 913 (1966).  HIS CONTENTION
WAS REJECTED.  IN DECIDING THAT BRANTLEY WAS STILL A BINDING PRECEDENT
AS TO IT, THE GEORGIA COURT OF APPEALS NOTED THAT THE GEORGIA SUPREME
COURT HAD TRANSFERRED THE CASE TO IT AS INVOLVING THE APPLICATION OF
ONLY "PLAIN AND UNAMBIGUOUS" CONSTITUTIONAL PROVISIONS.  THE
PETITIONER'S MOTION WAS THEN DENIED.  THEREAFTER THE GEORGIA SUPREME
COURT DENIED CERTIORARI, AND PETITIONER SOUGHT REVIEW IN THIS COURT. 
WE GRANTED THE WRIT, 395 U.S. 975 (1969), AND NOW REVERSE. 

        (1) 

IN UNITED STATES V. BALL, 163 U.S. 662, 669 (1896), THIS COURT
OBSERVED:  "THE CONSTITUTION OF THE UNITED STATES, IN THE FIFTH
AMENDMENT, DECLARES, 'NOR SHALL ANY PERSON BE SUBJECT (FOR THE SAME
OFFENSE) TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB.'  THE PROHIBITION
IS NOT AGAINST BEING TWICE PUNISHED, BUT AGAINST BEING TWICE PUT IN
JEOPARDY . . . ."  THE "TWICE PUT IN JEOPARDY" LANGUAGE OF THE
CONSTITUTION THUS RELATES TO A POTENTIAL, I.E., THE RISK THAT AN
ACCUSED FOR A SECOND TIME WILL BE CONVICTED OF THE "SAME OFFENSE" FOR
WHICH HE WAS INITIALLY TRIED. 

THE CIRCUMSTANCES THAT GIVE RISE TO SUCH A FORBIDDEN POTENTIAL HAVE
BEEN THE SUBJECT OF MUCH DISCUSSION IN THIS COURT.  IN THE BALL CASE,
FOR EXAMPLE, THE COURT EXPRESSLY REJECTED THE VIEW THAT THE DOUBLE
JEOPARDY PROVISION PREVENTED A SECOND TRIAL WHEN A CONVICTION HAD BEEN
SET ASIDE.  IN SO DOING, IT EFFECTIVELY FORMULATED A CONCEPT OF
CONTINUING JEOPARDY THAT HAS APPLICATION WHERE CRIMINAL PROCEEDINGS
AGAINST AN ACCUSED HAVE NOT RUN THEIR FULL COURSE.  SEE GREEN V. UNITED
STATES, 355 U.S. 184, 189 (1957). 

THE CONTINUING JEOPARDY PRINCIPLE NECESSARILY IS APPLICABLE TO THIS
CASE.  PETITIONER SOUGHT AND OBTAINED THE REVERSEL OF HIS INITIAL
CONVICTION FOR VOLUNTARY MANSLAUGHTER BY TAKING AN APPEAL. 
ACCORDINGLY, NO ASPECT OF THE BAR ON DOUBLE JEOPARDY PREVENTED HIS
RETRIAL FOR THAT CRIME.  HOWEVER, THE FIRST VERDICT, LIMITED AS IT WAS
TO THE LESSER INCLUDED OFFENSE, REQUIRED THAT THE RETRIAL BE LIMITED TO
THAT LESSER OFFENSE.  SUCH A RESULT FLOWS INESCAPABLY FROM THE
CONSTITUTION'S EMPHASIS ON A RISK OF CONVICTION AND THE CONSTITUTION'S
EXPLICATION IN PRIOR DECISIONS OF THIS COURT. 

AN EARLY CASE TO DEAL WITH RESTRICTIONS ON RETRIALS WAS KEPNER V.
UNITED STATES, 195 U.S. 100 (1904), WHERE THE COURT HELD THAT THE FIFTH
AMENDMENT'S DOUBLE JEOPARDY PROHIBITION BARRED THE GOVERNMENT FROM
APPEALING AN ACQUITTAL IN A CRIMINAL PROSECUTION, /2/  OVER A DISSENT
BY MR. JUSTICE HOLMES THAT ARGUED THAT THERE WAS ONLY ONE CONTINUING
JEOPARDY UNTIL THE PROCEEDINGS AGAINST THE ACCUSED HAD BEEN FINALLY
RESOLVED.  HE HELD TO THE VIEW THAT EVEN IF AN ACCUSED WAS RETRIED
AFTER THE GOVERNMENT HAD OBTAINED REVERSAL OF AN ACQUITTAL, THE SECOND
TRIAL WAS PART OF THE ORIGINAL PROCEEDING. 

SIMILAR DOUBLE JEOPARDY ISSUES DID NOT FULLY CLAIM THE COURT'S
ATTENTION UNTIL THE COURT HEARD ARGUMENT IN GREEN V. UNITED STATES, 355
U.S. 184 (1957).  /3/  THERE THE PETITIONER HAD BEEN TRIED AND
CONVICTED OF FIRST-DEGREE MURDER AFTER AN EARLIER GUILTY VERDICT ON THE
LESSER INCLUDED OFFENSE OF SECOND-DEGREE MURDER HAD BEEN SET ASIDE ON
APPEAL.  A MAJORITY OF THE COURT REJECTED THE ARGUMENT THAT BY
APPEALING THE CONVICTION OF SECOND-DEGREE MURDER THE PETITIONER HAD
"WAIVED" HIS PLEA OF FORMER JEOPARDY WITH REGARD TO THE CHARGE OF FIRST
DEGREE MURDER. 

THE COURT IN THE GREEN CASE REVERSED THE FIRST-DEGREE MURDER
CONVICTION OBTAINED AT THE RETRIAL, HOLDING THAT THE PETITIONER'S
JEOPARDY FOR FIRST-DEGREE MURDER CAME TO AN END WHEN THE JURY WAS
DISCHARGED AT THE END OF HIS FIRST TRIAL.  THIS CONCLUSION RESTED ON
TWO PREMISES.  FIRST, THE COURT CONSIDERED THE FIRST JURY'S VERDICT OF
GUILTY ON THE SECOND-DEGREE MURDER CHARGE TO BE AN "IMPLICIT ACQUITTAL"
ON THE CHARGE OF FIRST-DEGREE MURDER.  SECOND, AND MORE BROADLY, THE
COURT REASONED THAT PETITIONER'S JEOPARDY ON THE GREATER CHARGE HAD
ENDED WHEN THE FIRST JURY "WAS GIVEN A FULL OPPORTUNITY TO RETURN A
VERDICT" ON THAT CHARGE AND INSTEAD REACHED A VERDICT ON THE LESSER
CHARGE.  355 U.S.,AT 191.  UNDER EITHER OF THESE PREMISES, THE HOLDING
IN THE KEPNER CASE-- THAT THERE COULD BE NO APPEAL FROM AN ACQUITTAL
BECAUSE SUCH A VERDICT ENDED AN ACCUSED'S JEOPARDY-- WAS APPLICABLE. 

THE RATIONALE OF THE GREEN HOLDING APPLIES HERE.  THE CONCEPT OF
CONTINUING JEOPARDY IMPLICIT IN THE BALL CASE /4/  WOULD ALLOW
PETITIONER'S RETRIAL FOR VOLUNTARY MANSLAUGHTER AFTER HIS FIRST
CONVICTION FOR THAT OFFENSE HAD BEEN REVERSED.  BUT, AS THE KEPNER AND
GREEN CASES ILLUSTRATE, THIS COURT HAS CONSISTENTLY REFUSED TO RULE
THAT JEOPARDY FOR AN OFFENSE CONTINUES AFTER AN ACQUITTAL, WHETHER THAT
ACQUITTAL IS EXPRESS OR IMPLIED BY A CONVICTION ON A LESSER INCLUDED
OFFENSE WHEN THE JURY WAS GIVEN A FULL OPPORTUNITY /5/  TO RETURN A
VERDICT ON THE GREATER CHARGE.  THERE IS NO RELEVANT FACTUAL
DISTINCTION BETWEEN THIS CASE AND GREEN V. UNITED STATES.  ALTHOUGH THE
PETITIONER WAS NOT CONVICTED OF THE GREATER CHARGE ON RETRIAL, WHEREAS
GREEN WAS, THE RISK OF CONVICTION ON THE GREATER CHARGE WAS THE SAME IN
BOTH CASES, AND THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT IS
WRITTEN IN TERMS OF POTENTIAL OR RISK OF TRIAL AND CONVICTION, NOT
PUNISHMENT. 

THE GEORGIA COURTS NONETHELESS REJECTED GREEN AS A PERSUASIVE
AUTHORITY IN FAVOR OF RELIANCE ON BRANTLEY V. STATE, 132 GA. 573, 64
S.E. 676 (1909), AFF'D, 217 U.S. 284 (1910).  THE BRANTLEY CASE
PRESENTED A SITUATION WHERE A DEFENDANT'S APPEAL FROM A CONVICTION FOR
A LESSER INCLUDED OFFENSE ULTIMATELY LED TO RETRIAL AND CONVICTION ON
THE GREATER OFFENSE.  AFTER THE SECOND CONVICTION HAD BEEN AFFIRMED ON
APPEAL, THE DEFENDANT SUED OUT A WRIT OF ERROR TO THE SUPREME COURT OF
GEORGIA FROM THIS COURT, CONTENDING "THAT THE EXEMPTION FROM SECOND
JEOPARDY IS ONE OF THE PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE
UNITED STATES, WHICH THE FOURTEENTH AMENDMENT FORBIDS A STATE TO
ABRIDGE", /6/  THAT HE HAD "BEEN TRIED AND ACQUITTED BY A JURY OF HIS
COUNTRY OF THE CRIME OF MURDER", /7/  AND THAT "(HE SHOULD NEVER HAVE
BEEN TRIED A SECOND TIME ONLY FOR THE OFFENSE ON WHICH HE OBTAINED A
NEW TRIAL . . . ."  /8/  THIS COURT TERSELY REJECTED THESE CONTENSIONS
AS: 

"ABSOLUTELY WITHOUT MERIT.  IT WAS NOT A CASE OF TWICE IN JEOPARDY
UNDER ANY VIEW OF THE CONSTITUTION OF THE UNITED STATES."  217 U.S.,AT
285. 

THE BRANTLEY CASE WAS DECIDED BY THIS COURT AT A TIME WHEN, ALTHOUGH
THE COURT WAS ACTIVELY DEVELOPING AN EXPLICATION OF FEDERAL DOUBLE
JEOPARDY DOCTRINES BASED ON THE FIFTH AMENDMENT, IT TOOK A VERY
RESTRICTED APPROACH IN REVIEWING SIMILAR STATE COURT DECISIONS.  WHILE
THE BRANTLEY HOLDING MAY HAVE HAD SOME VITALITY AT THE TIME THE GEORGIA
COURTS RENDERED THEIR DECISIONS IN THIS CASE, IT IS NO LONGER A VIABLE
AUTHORITY AND MUST NOW BE DEEMED TO HAVE BEEN OVERRULED BY SUBSEQUENT
DECISIONS OF THIS COURT.  /9/

        (2) 

ONE FURTHER CONSIDERATION REMAINS.  BECAUSE THE PETITIONER WAS
CONVICTED OF THE SAME CRIME AT BOTH THE FIRST AND SECOND TRIALS, AND
BECAUSE HE SUFFERED NO GREATER PUNISHMENT ON THE SUBSEQUENT CONVICTION,
GEORGIA SUBMITS THAT THE SECOND JEOPARDY WAS HARMLESS ERROR WHEN JUDGED
BY THE CRITERIA OF CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1967), AND
HARRINGTON V. CALIFORNIA, 395 U.S. 250 (1969). 

WE MUST REJECT THIS CONTENTION.  THE DOUBLE JEOPARDY CLAUSE, AS WE
HAVE NOTED, IS CAST IN TERMS OF THE RISK OR HAZARD OF TRIAL AND
CONVICTION, NOT OF THE ULTIMATE LEGAL CONSEQUENCES OF THE VERDICT.  TO
BE CHARGED AND TO BE SUBJECTED TO A SECOND TRIAL FOR FIRST-DEGREE
MURDER IS AN ORDEAL NOT TO BE VIEWED LIGHTLY.  /10/  FURTHER, AND
PERHAPS OF MORE IMPORTANCE,WE CANNOT DETERMINE WHETHER OR NOT THE
MURDER CHARGE AGAINST PETITIONER INDUCED THE JURY TO FIND HIM GUILTY OF
THE LESS SERIOUS OFFENSE OF VOLUNTARY MANSLAUGHTER RATHER THAN TO
CONTINUE TO DEBATE HIS INNOCENCE.  SEE UNITED STATES EX REL. HETENYI V.
WILKINS, 348 F.2D 844 (C.A. 2D CIR. 1965), CERT. DENIED, 383 U.S. 913
(1966). 

        (3) 

WE ASKED THE PARTIES TO SUBMIT POST-ARGUMENT MEMORANDA DIRECTED TO
THE QUESTION OF WHETHER PETITIONER CAN NOW BE RE-INDICTED OR RETRIED
FOR VOLUNTARY MANSLAUGHTER UNDER GEORGIA LAW.  THESE MEMORANDA HAVE
BEEN FILED AND INDICATE THAT THE ANSWER TO OUR QUESTION APPEARS TO
DEPEND UPON THE CONSTRUCTION OF SEVERAL GEORGIA STATUTES AND ON THE
POWER OF GEORGIA COURTS TO FASHION REMEDIAL ORDERS.  ACCORDINGLY,
ALTHOUGH WE REVERSE PETITIONER'S CONVICTION, WE ALSO REMAND THE CASE TO
ENABLE THE GEORGIA COURTS TO RESOLVE THE ISSUES PERTAINING TO
PETITIONER'S RETRIAL, IF ANY SUCH RETRIAL IS TO BE HAD. 

              REVERSED AND REMANDED. 

/1/  GEORGIA'S CONSTITUTION PROVIDES FOR DIRECT REVIEW IN THE
GEORGIA SUPREME COURT OF, AMONG OTHERS, "ALL CASES THAT INVOLVE THE
CONSTRUCTION OF THE CONSTITUTION OF THE STATE OF GEORGIA OR OF THE
UNITED STATES . . . ."  GA. CONST., ART. VI, SEC. 2, PARA. 4. 

/2/  KEPNER RESTED UPON A PORTION OF THE BALL CASE THAT DEALT WITH A
CRIMINAL ACTION THAT HAD BEEN FINALLY RESOLVED.  IN BALL THE COURT HAD
HELD THAT THE GOVERNMENT COULD NOT RE-INDICT AN ACCUSED FOR AN OFFENSE
WHERE A JUDGMENT OF ACQUITTAL HAD BEEN ENTERED BY A TRIAL COURT WITH
JURISDICTION OVER THE ACCUSED AND THE CAUSE.  163 U.S.,AT 669-670.  THE
COURT RELIED PARTIALLY ON UNITED STATES V. SANGES, 144 U.S. 310
(1892),WHERE THE COURT HAD INTERPRETED THE JUDICIARY ACT OF 1891 TO
HOLD THAT THE UNITED STATES COULD NOT OBTAIN REVIEW BY A WRIT OF ERROR
IN A CRIMINAL CASE. 

/3/  SHORTLY AFTER KEPNER THE COURT WAS FACED WITH A FACTUAL
SITUATION SOMEWHAT AKIN TO THAT PRESENTED BY THE INSTANT CASE.  IN
TRONO V. UNITED STATES, 199 U.S. 521 (1905), THE DEFENDANTS HAD BEEN
CHARGED IN A PHILIPPINE COURT WITH MURDER, AND HAD BEEN FOUND GUILTY OF
THE LESSER OFFENSE OF ASSAULT.  ON THEIR APPEAL OF THE CONVICTION THE
PHILIPPINE SUPREME COURT SET ASIDE THE TRIAL COURT'S JUDGMENT, FOUND
THEM GUILTY OF MURDER, AND INCREASED THEIR SENTENCES.  THIS COURT
AFFIRMED.  FOUR JUSTICES TOOK THE POSITION THAT BY APPEALING THE
ASSAULT CONVICTION, THE DEFENDANTS HAD WAIVED ANY DOUBLE JEOPARDY CLAIM
RESPECTING THE MURDER CHARGE.  MR. JUSTICE HOLMES CONCURRED IN THE
RESULT WITHOUT STATING HIS RATIONALE.  KEPNER HAD BEEN DECIDED IN THE
PREVIOUS YEAR, HOWEVER, AND HIS CONCURRENCE COULD HAVE INDICATED THAT,
FOR HIM, A WAIVER THEORY WAS TOO NARROW-- INSTEAD HE CONSIDERED THAT
EVEN AN APPEAL BY THE GOVERNMENT WAS A CONTINUING JEOPARDY, NOT A
SECOND JEOPARDY.  OF THE FOUR DISSENTERS, TWO, JUSTICES MCKENNA AND
WHITE, WOULD HAVE FOUND A VIOLATION OF THE CONSTITUTION'S DOUBLE
JEOPARDY PROVISION.     ACCEPTANCE OF EITHER TRONO'S WAIVER THEORY OR
MR. JUSTICE HOLMES'  BROAD CONTINUING JEOPARDY APPROACH WOULD INDICATE
THAT PRICE COULD NOT COMPLAIN OF HIS RETRIAL FOR THE GREATER OFFENSE. 
BUT TRONO HAS NOT SURVIVED UNSCATHED TO THE PRESENT DAY.  THE "WAIVER
THEORY" OF FOUR OF THE MAJORITY JUSTICES IN TRONO WAS DISTINGUISHED IN
GREEN AS RESTING ON "A STATUTORY PROVISION AGAINST DOUBLE JEOPARDY
PERTAINING TO THE PHILIPPINE ISLANDS-- A TERRITORY JUST RECENTLY
CONQUERED WITH LONG-ESTABLISHED LEGAL PROCEDURES THAT WERE ALIEN TO THE
COMMON LAW."  355 U.S.,AT 197. 

/4/  AFTER KEPNER AND GREEN, THE CONTINUING JEOPARDY PRINCIPLE
APPEARS TO REST ON AN AMALGAM OF INTERESTS-- E.G., FAIRNESS TO SOCIETY,
LACK OF FINALITY, AND LIMITED WAIVER, AMONG OTHERS. 

/5/  SEE PEOPLE V. JACKSON, 20 N.Y.2D 440, 231 N.E.2D 722 (1967). 

/6/  BRIEF FOR PLAINTIFF IN ERROR, NO. 692, O.T. 1909, P. 2. 

/7/  ID., 5. 

/8/  IBID. 

/9/  IN PALKO V. CONNECTICUT, 302 U.S. 319 (1937), THIS COURT
REFUSED TO OVERTURN A FIRST-DEGREE MURDER CONVICTION OBTAINED AFTER THE
STATE HAD SUCCESSFULLY APPEALED FROM A CONVICTION OF SECOND-DEGREE
MURDER WHICH WAS THE PRODUCT OF A TRIAL ON FIRST-DEGREE MURDER
CHARGES.  THE COURT RULED THAT FEDERAL DOUBLE JEOPARDY STANDARDS WERE
NOT APPLICABLE TO THE STATES. 

PALKO WAS OVERRULED IN BENTON V. MARYLAND, 395 U.S. 784 (1969),
WHERE THIS COURT DETERMINED THAT THE DOUBLE JEOPARDY PROHIBITION OF THE
FIFTH AMENDMENT SHOULD BE APPLIED TO THE STATES THROUGH THE FOURTEENTH
AMENDMENT.  BRANTLEY AND PALKO WERE OF THE SAME GENRE, AND BRANTLEY
NECESSARILY SHARED PALKO'S FATE IN BENTON. 

THE LAST OF THE DECISIONS OF THE GEORGIA COURTS AFFIRMING THE
PETITIONER'S CONVICTION WAS RENDERED ON SEPTEMBER 24, 1968, WELL BEFORE
BENTON WAS DECIDED.  BUT BENTON HAS FULLY RETROACTIVE APPLICATION, SEE
WALLER V. FLORIDA, 397 U.S. 387, 391 N. 2 (1970), AND THE GEORGIA
COURTS' RELIANCE ON THE THEMES OF BRANTLEY, THOUGH UNDERSTANDABLE, NOW
HAS NO PLACE. 

/10/  THERE IS A SIGNIFICANT DIFFERENCE TO AN ACCUSED WHETHER HE IS
BEING TRIED FOR MURDER OR MANSLAUGHTER.  HE HAS REASON FOR CONCERN AS
TO THE CONSEQUENCES IN TERMS OF STIGMA AS WELL AS PENALTY.  HE MUST BE
PREPARED TO MEET NOT ONLY THE EVIDENCE OF THE PROSECUTION AND THE
VERDICT OF THE JURY BUT THE VERDICT OF THE COMMUNITY AS WELL. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

ALLYN M. WALLACE ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

MATHEW ROBINS, ASSISTANT ATTORNEY GENERAL OF GEORGIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE ARTHUR K. BOLTON,
ATTORNEY GENERAL, HAROLD N. HILL, JR., EXECUTIVE ASSISTANT ATTORNEY
GENERAL, AND MARION O. GORDON, ASSISTANT ATTORNEY GENERAL. 
..END :





















WELSH V. UNITED STATES, 398 U.S. 333 


       WELSH V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 76.  ARGUED JANUARY 20, 1970-- DECIDED JUNE 15, 1970. 


PETITIONER WAS CONVICTED OF REFUSING TO SUBMIT TO INDUCTION INTO THE
ARMED FORCES DESPITE HIS CLAIM FOR CONSCIENTIOUS OBJECTOR STATUS UNDER
SEC. 6(J) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT.  THAT
PROVISION EXEMPTS FROM MILITARY SERVICE PERSONS WHO BY REASON OF
"RELIGIOUS TRAINING AND BELIEF" ARE CONSCIENTIOUSLY OPPOSED TO WAR IN
ANY FORM, THAT TERM BEING DEFINED IN THE ACT AS "BELIEF IN A RELATION
TO A SUPREME BEING INVOLVING DUTIES SUPERIOR TO THOSE ARISING FROM ANY
HUMAN RELATION" BUT NOT INCLUDING "ESSENTIALLY POLITICAL, SOCIOLOGICAL,
OR PHILOSOPHICAL VIEWS OR A MERELY PERSONAL CODE."  IN HIS EXEMPTION
APPLICATION PETITIONER STATED THAT HE COULD NOT AFFIRM OR DENY BELIEF
IN A "SUPREME BEING" AND STRUCK THE WORDS "MY RELIGIOUS TRAINING AND"
FROM THE FORM.  HE AFFIRMED THAT HE HELD DEEP CONSCIENTIOUS SCRUPLES
AGAINST PARTICIPATING IN WARS WHERE PEOPLE WERE KILLED.  THE COURT OF
APPEALS, WHILE NOTING THAT PETITIONER'S "BELIEFS ARE HELD WITH THE
STRENGTH OF MORE TRADITIONAL RELIGIOUS CONVICTIONS," CONCLUDED THAT
THOSE BELIEFS WERE NOT SUFFICIENTLY "RELIGIOUS" TO MEET THE TERMS OF
SEC. 6(J), AND AFFIRMED THE CONVICTION.  PETITIONER CONTENDS THAT THE
ACT VIOLATES THE FIRST AMENDMENT PROHIBITION OF ESTABLISHMENT OF
RELIGION AND THAT HIS CONVICTION SHOULD BE SET ASIDE ON THE BASIS OF
UNITED STATES V. SEEGER, 380 U.S. 163, WHICH HELD THAT THE TEST OF
RELIGIOUS BELIEF UNDER SEC. 6(J) IS WHETHER IT IS A SINCERE AND
MEANINGFUL BELIEF OCCUPYING IN THE LIEF OF ITS POSSESSOR A PLACE
PARALLEL TO THAT FILLED BY THE GOD OF THOSE ADMITTEDLY QUALIFIED FOR
THE EXEMPTION.  HELD:  THE JUDGMENT IS REVERSED.  PP. 335-367. 

404 F.2D 1078, REVERSED. 

MR. JUSTICE BLACK, JOINED BY MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE MARSHALL, CONCLUDED THAT: 

THIS CASE IS CONTROLLED BY UNITED STATES V. SEEGER, SUPRA, TO WHICH
IT IS FACTUALLY SIMILAR.  UNDER SEEGER, SEC. 6(J) IS NOT LIMITED TO
THOSE WHOSE OPPOSITION TO WAR IS PROMPTED BY ORTHODOX OR PAROCHIAL
RELIGIOUS BELIEFS.  A REGISTRANT'S CONSCIENTIOUS OBJECTION TO ALL WAR
IS "RELIGIOUS" WITHIN THE MEANING OF SEC. 6(J) IF THIS OPPOSITION STEMS
FROM THE REGISTRANT'S MORAL, ETHICAL, OR RELIGIOUS BELIEFS ABOUT WHAT
IS RIGHT AND WRONG AND THESE BELIEFS ARE HELD WITH THE STRENGTH OF
TRADITIONAL RELIGIOUS CONVICTIONS.  IN VIEW OF THE BROAD SCOPE OF THE
WORD "RELIGIOUS," A REGISTRANT'S CHARACTERIZATION OF HIS BELIEFS AS
"NONRELIGIOUS" IS NOT A RELIABLE GUIDE TO THOSE ADMINISTERING THE
EXEMPTION.  PP. 335-344. 

MR. JUSTICE HARLAN CONCLUDED THAT: 

1.  THE LANGUAGE OF SEC. 6(J) CANNOT BE CONSTRUED (AS IT WAS IN
UNITED STATES V. SEEGER, SUPRA, AND AS IT IS IN THE PREVAILING OPINION)
TO EXEMPT FROM MILITARY SERVICE ALL INDIVIDUALS WHO IN GOOD FAITH
OPPOSE ALL WAR, IT BEING CLEAR FROM BOTH THE LEGISLATIVE HISTORY AND
TEXTUAL ANALYSIS OF THAT PROVISION THAT CONGRESS USED THE WORDS "BY
REASON OF RELIGIOUS TRAINING AND BELIEF" TO LIMIT RELIGION TO ITS
THEISTIC SENSE AND TO CONFINE IT TO FORMAL, ORGANIZED WORSHIP OR SHARED
BELIEFS BY A RECOGNIZABLE AND COHESIVE GROUP.  PP. 348-354. 

2.  THE QUESTION OF THE CONSTITUTIONALITY OF SEC. 6(J) CANNOT BE
AVOIDED BY A CONSTRUCTION OF THAT PROVISION THAT IS CONTRARY TO ITS
INTENDED MEANING.  PP. 354-356. 

3.  SECTION 6(J) CONTRAVENES THE ESTABLISHMENT CLAUSE OF THE FIRST
AMENDMENT BY EXEMPTING THOSE WHOSE CONSCIENTIOUS OBJECTION CLAIMS ARE
FOUNDED ON A THEISTIC BELIEF WHILE NOT EXEMPTING THOSE WHOSE CLAIMS ARE
BASED ON A SECULAR BELIEF.  TO COMPORT WITH THAT CLAUSE AN EXEMPTION
MUST BE "NEUTRAL" AND INCLUDE THOSE WHOSE BELIEF EMANATES FROM A PURELY
MORAL, ETHICAL, OR PHILOSOPHICAL SOURCE.  PP. 356-361. 

4.  IN VIEW OF THE BROAD DISCRETION CONFERRED BY THE ACT'S
SEVERABILITY CLAUSE AND THE LONGSTANDING POLICY OF EXEMPTING RELIGIOUS
CONSCIENTIOUS OBJECTORS, THE COURT, RATHER THAN NULLIFYING THE
EXEMPTION ENTIRELY, SHOULD EXTEND ITS COVERAGE TO THOSE LIKE PETITIONER
WHO HAVE BEEN UNCONSTITUTIONALLY EXCLUDED FROM ITS COVERAGE.  PP. 361
367. 

MR. JUSTICE BLACK ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR.
JUSTICE MARSHALL JOIN. 

THE PETITIONER, ELLIOTT ASHTON WELSH II,WAS CONVICTED BY A UNITED
STATES DISTRICT JUDGE OF REFUSING TO SUBMIT TO INDUCTION INTO THE ARMED
FORCES IN VIOLATION OF 50 U.S.C. APP. 462(A), AND WAS  ON JUNE 1, 1966,
SENTENCED TO IMPRISONMENT FOR THREE YEARS.  ONE OF PETITIONER'S
DEFENSES TO THE  PROSECUTION WAS THAT SEC. 6(J) OF THE UNIVERSAL
MILITARY TRAINING AND SERVICE ACT EXEMPTED HIM FROM COMBAT AND
NONCOMBAT SERVICE BECAUSE HE WAS "BY REASON OF RELIGIOUS TRAINING AND
BELIEF . . . CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN ANY
FORM."  /1/  AFTER FINDING THAT THERE WAS NO RELIGIOUS BASIS FOR
PETITIONER'S CONSCIENTIOUS OBJECTOR CLAIM, THE COURT OF APPEALS, JUDGE
HAMLEY DISSENTING, AFFIRMED THE CONVICTION.  404 F.2D 1078 (1968).  WE
GRANTED CERTIORARI CHIEFLY TO REVIEW THE CONTENTION THAT WELSH'S
CONVICTION SHOULD BE SET ASIDE ON THE BASIS OF THIS COURT'S DECISION IN
UNITED STATES V. SEEGER, 380 U.S. 163 (1965).  396 U.S. 816 (1969). 
FOR THE REASONS TO BE STATED, AND WITHOUT PASSING UPON THE
CONSTITUTIONAL ARGUMENTS THAT HAVE BEEN RAISED, WE VOTE TO REVERSE THIS
CONVICTION BECAUSE OF ITS FUNDAMENTAL INCONSISTENCY WITH UNITED STATES
V. SEEGER, SUPRA. 

THE CONTROLLING FACTS IN THIS CASE ARE STRIKINGLY SIMILAR TO THOSE
IN SEEGER.  BOTH SEEGER AND WELSH WERE BROUGHT UP IN RELIGIOUS HOMES
AND ATTENDED CHURCH IN THEIR CHILDHOOD,BUT IN NEITHER CASE WAS THIS
CHURCH ONE WHICH TAUGHT ITS MEMBERS NOT TO ENGAGE IN WAR AT ANY TIME
FOR ANY REASON.  NEITHER SEEGER NOR WELSH CONTINUED HIS CHILDHOOD
RELIGIOUS TIES INTO HIS YOUNG MANHOOD, AND NEITHER BELONGED TO ANY
RELIGIOUS GROUP OR ADHERED TO THE TEACHINGS OF ANY ORGANIZED RELIGION
DURING THE PERIOD OF HIS INVOLVEMENT WITH THE SELECTIVE SERVICE
SYSTEM.  AT THE TIME OF REGISTRATION FOR THE DRAFT, NEITHER HAD YET
COME TO ACCEPT PACIFIST PRINCIPLES.  THEIR VIEWS ON WAR DEVELOPED ONLY
IN SUBSEQUENT YEARS, BUT WHEN THEIR IDEAS DID FULLY MATURE BOTH MADE
APPLICATION TO THEIR LOCAL DRAFT BOARDS FOR CONSCIENTIOUS OBJECTOR
EXEMPTIONS FROM MILITARY SERVICE UNDER SEC. 6(J) OF THE UNIVERSAL
MILITARY TRAINING AND SERVICE ACT.  THAT SECTION THEN PROVIDED, IN
PART:  /2/ 

     "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." 

IN FILLING OUT THEIR EXEMPTION APPLICATIONS BOTH SEEGER AND WELSH WERE
UNABLE TO SIGN THE STATEMENT THAT, AS PRINTED IN THE SELECTIVE SERVICE
FORM, STATED "I AM, BY REASON OF MY RELIGIOUS TRAINING AND BELIEF,
CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN ANY FORM."  SEEGER
COULD SIGN ONLY AFTER STRIKING THE WORDS "TRAINING AND" AND PUTTING
QUOTATION MARKS AROUND THE WORD "RELIGIOUS."  WELSH COULD SIGN ONLY
AFTER STRIKING THE WORDS "MY RELIGIOUS TRAINING AND."  ON THOSE SAME
APPLICATIONS, NEITHER COULD DEFINITELY AFFIRM OR DENY THAT HE BELIEVED
IN A "SUPREME BEING," BOTH STATING THAT THEY PREFERRED TO LEAVE THE
QUESTION OPEN.  /3/  BUT BOTH SEEGER AND WELSH AFFIRMED ON THOSE
APPLICATIONS THAT THEY HELD DEEP CONSCIENTIOUS SCRUPLES AGAINST TAKING
PART IN WARS WHERE PEOPLE WERE KILLED.  BOTH STRONGLY BELIEVED THAT
KILLING IN WAR WAS WRONG, UNETHICAL, AND IMMORAL, AND THEIR CONSCIENCES
FORBADE THEM TO TAKE PART IN SUCH AN EVIL PRACTICE.  THEIR OBJECTION TO
PARTICIPATING IN WAR IN ANY FORM COULD NOT BE SAID TO COME FROM A
"STILL, SMALL VOICE OF CONSCIENCE"; RATHER, FOR THEM THAT VOICE WAS SO
LOUD AND INSISTENT THAT BOTH MEN PREFERRED TO GO TO JAIL RATHER THAN
SERVE IN THE ARMED FORCES.  THERE WAS NEVER ANY QUESTION ABOUT THE
SINCERITY AND DEPTH OF SEEGER'S CONVICTIONS AS A CONSCIENTIOUS
OBJECTOR, AND THE SAME IS TRUE OF WELSH.  IN THIS REGARD THE COURT OF
APPEALS NOTED, "(THE GOVERNMENT CONCEDES THAT (WELSH'S) BELIEFS ARE
HELD WITH THE STRENGTH OF MORE TRADITIONAL RELIGIOUS CONVICTIONS."  404
F.2D,AT 1081.  BUT IN BOTH CASES THE SELECTIVE SERVICE SYSTEM CONCLUDED
THAT THE BELIEFS OF THESE MEN WERE IN SOME SENSE INSUFFICIENTLY
"RELIGIOUS" TO QUALIFY THEM FOR CONSCIENTIOUS OBJECTOR EXEMPTIONS UNDER
THE TERMS OF SEC. 6(J).  SEEGER'S CONSCIENTIOUS OBJECTOR CLAIM WAS
DENIED "SOLELY BECAUSE IT WAS NOT BASED UPON A 'BELIEF IN A RELATION TO
A SUPREME BEING' AS REQUIRED BY SEC. 6(J) OF THE ACT," UNITED STATES V.
SEEGER, 380 U.S. 163, 167 (1965), WHILE WELSH WAS DENIED THE EXEMPTION
BECAUSE HIS APPEAL BOARD AND THE DEPARTMENT OF JUSTICE HEARING OFFICER
"COULD FIND NO RELIGIOUS BASIS FOR THE REGISTRANT'S BELIEFS, OPINIONS
AND CONVICTIONS."  APP. 52.  BOTH SEEGER AND WELSH SUBSEQUENTLY REFUSED
TO SUBMIT TO INDUCTION INTO THE MILITARY AND BOTH WERE CONVICTED OF
THAT OFFENSE. 

IN SEEGER THE COURT WAS CONFRONTED, FIRST, WITH THE PROBLEM THAT
SEC. 6(J) DEFINED "RELIGIOUS TRAINING AND BELIEF" IN TERMS OF A "BELIEF
IN A RELATION TO A SUPREME BEING . . . ," A DEFINITION THAT ARGUABLY
GAVE A PREFERENCE TO THOSE WHO BELIEVED IN A CONVENTIONAL GOD AS
OPPOSED TO THOSE WHO DID NOT.  NOTING THE "VAST PANOPLY OF BELIEFS"
PREVALENT IN OUR COUNTRY, THE COURT CONSTRUED THE CONGRESSIONAL INTENT
AS BEING IN "KEEPING WITH ITS LONG-ESTABLISHED POLICY OF NOT PICKING
AND CHOOSING AMONG RELIGIOUS BELIEFS," ID., AT 175, AND ACCORDINGLY
INTERPRETED "THE MEANING OF RELIGIOUS TRAINING AND BELIEF SO AS TO
EMBRACE ALL RELIGIONS . . . ."  ID., AT 165.  BUT, HAVING DECIDED THAT
ALL RELIGIOUS CONSCIENTIOUS OBJECTORS WERE ENTITLED TO THE EXEMPTION,
WE FACED THE MORE SERIOUS PROBLEM OF DETERMINING WHICH BELIEFS WERE
"RELIGIOUS" WITHIN THE MEANING OF THE STATUTE.  THIS QUESTION WAS
PARTICULARLY DIFFICULT IN THE CASE OF SEEGER HIMSELF.  SEEGER STATED
THAT HIS WAS A "BELIEF IN AND DEVOTION TO GOODNESS AND VIRTUE FOR THEIR
OWN SAKES, AND A RELIGIOUS FAITH IN A PURELY ETHICAL CREED."  380
U.S.,AT 166.  IN A LETTER TO HIS DRAFT BOARD, HE WROTE: 

"MY DECISION ARISES FROM WHAT I BELIEVE TO BE CONSIDERATIONS OF
VALIDITY FROM THE STANDPOINT OF THE WELFARE OF HUMANITY AND THE
PRESERVATION OF THE DEMOCRATIC VALUES WHICH WE IN THE UNITED STATES ARE
STRUGGLING TO MAINTAIN.  I HAVE CONCLUDED THAT WAR, FROM THE PRACTICAL
STANDPOINT, IS FUTILE AND SELF-DEFEATING, AND THAT FROM THE MORE
IMPORTANT MORAL STANDPOINT, IT IS UNETHICAL."  326 F.2D 846, 848
(1964).  ON THE BASIS OF THESE AND SIMILAR ASSERTIONS, THE GOVERNMENT
ARGUED THAT SEEGER'S CONSCIENTIOUS OBJECTION TO WAR WAS NOT "RELIGIOUS"
BUT STEMMED FROM "ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR PHILOSOPHICAL
VIEWS OR A MERELY PERSONAL MORAL CODE." 

IN RESOLVING THE QUESTION WHETHER SEEGER AND THE OTHER REGISTRANTS
IN THAT CASE QUALIFIED FOR THE EXEMPTION, THE COURT STATED THAT "(THE)
TASK IS TO DECIDE WHETHER THE BELIEFS PROFESSED BY A REGISTRANT ARE
SINCERELY HELD AND WHETHER THEY ARE, IN HIS OWN SCHEME OF THINGS,
RELIGIOUS."  380 U.S.,AT 185.  THE REFERENCE TO THE REGISTRANT'S "OWN
SCHEME OF THINGS" WAS INTENDED TO INDICATE THAT THE CENTRAL
CONSIDERATION IN DETERMINING WHETHER THE REGISTRANT'S BELIEFS ARE
RELIGIOUS IS WHETHER THESE BELIEFS PLAY THE ROLE OF A RELIGION AND
FUNCTION AS A RELIGION IN THE REGISTRANT'S LIFE.  THE COURT'S PRINCIPAL
STATEMENT OF ITS TEST FOR DETERMINING WHETHER A CONSCIENTIOUS
OBJECTOR'S BELIEFS ARE RELIGIOUS WITHIN THE MEANING OF SEC. 6(J) WAS AS
FOLLOWS: 

"THE TEST MIGHT BE STATED IN THESE WORDS: A SINCERE AND MEANINGFUL
BELIEF WHICH OCCUPIES IN THE LIFE OF ITS POSSESSOR A PLACE PARALLEL TO
THAT FILLED BY THE GOD OF THOSE ADMITTEDLY QUALIFYING FOR THE EXEMPTION
COMES WITHIN THE STATUTORY DEFINITION."  380 U.S.,AT 176.  THE COURT
MADE IT CLEAR THAT THESE SINCERE AND MEANINGFUL BELIEFS THAT PROMPT THE
REGISTRANT'S OBJECTION TO ALL WARS NEED NOT BE CONFINED IN EITHER
SOURCE OR CONTENT TO TRADITIONAL OR PAROCHIAL CONCEPTS OF RELIGION.  IT
HELD THAT SEC. 6(J) "DOES NOT DISTINGUISH BETWEEN EXTERNALLY AND
INTERNALLY DERIVED BELIEFS," ID., AT 186, AND ALSO HELD THAT "INTENSELY
PERSONAL" CONVICTIONS WHICH SOME MIGHT FIND "INCOMPREHENSIBLE" OR
"INCORRECT" COME WITHIN THE MEANING OF "RELIGIOUS BELIEF" IN THE ACT. 
ID., AT 184-185.  WHAT IS NECESSARY UNDER SEEGER FOR A REGISTRANT'S
CONSCIENTIOUS OBJECTION TO ALL WAR TO BE "RELIGIOUS"  WITHIN THE
MEANING OF SEC. 6(J) IS THAT THIS OPPOSITION TO WAR STEM FROM THE
REGISTRANT'S MORAL, ETHICAL, OR RELIGIOUS BELIEFS ABOUT WHAT IS RIGHT
AND WRONG AND THAT THESE BELIEFS BE HELD WITH THE STRENGTH OF
TRADITIONAL RELIGIOUS CONVICTIONS.  MOST OF THE GREAT RELIGIONS OF
TODAY AND OF THE PAST HAVE EMBODIED THE IDEA OF A SUPREME BEING OR A
SUPREME REALITY-- A GOD-- WHO COMMUNICATES TO MAN IN SOME WAY A
CONSCIOUSNESS OF WHAT IS RIGHT AND SHOULD BE DONE, OF WHAT IS WRONG AND
THEREFORE SHOULD BE SHUNNED.  IF AN INDIVIDUAL DEEPLY AND SINCERELY
HOLDS BELIEFS THAT ARE PURELY ETHICAL OR MORAL IN SOURCE AND CONTENT
BUT THAT NEVERTHELESS IMPOSE UPON HIM A DUTY OF CONSCIENCE TO REFRAIN
FROM PARTICIPATING IN ANY WAR AT ANY TIME, THOSE BELIEFS CERTAINLY
OCCUPY IN THE LIFE OF THAT INDIVIDUAL "A PLACE PARALLEL TO THAT FILLED
BY . . . GOD" IN TRADITIONALLY RELIGIOUS PERSONS.  BECAUSE HIS BELIEFS
FUNCTION AS A RELIGION IN HIS LIFE, SUCH AN INDIVIDUAL IS AS MUCH
ENTITLED TO A "RELIGIOUS" CONSCIENTIOUS OBJECTOR EXEMPTION UNDER SEC.
6(J) AS IS SOMEONE WHO DERIVES HIS CONSCIENTIOUS OPPOSITION TO WAR FROM
TRADITIONAL RELIGIOUS CONVICTIONS. 

APPLYING THIS STANDARD TO SEEGER HIMSELF, THE COURT NOTED THE
"COMPULSION TO 'GOODNESS'" THAT SHAPED HIS TOTAL OPPOSITION TO WAR, THE
UNDISPUTED SINCERITY WITH WHICH HE HELD HIS VIEWS, AND THE FACT THAT
SEEGER HAD "DECRIED THE TREMENDOUS 'SPIRITUAL' PRICE MAN MUST PAY FOR
HIS WILLINGNESS TO DESTROY HUMAN LIFE."  380 U.S.,AT 186-187.  THE
COURT CONCLUDED: 

"WE THINK IT CLEAR THAT THE BELIEFS WHICH PROMPTED HIS OBJECTION
OCCUPY THE SAME PLACE IN HIS LIFE AS THE BELIEF IN A TRADITIONAL DEITY
HOLDS IN THE LIVES OF HIS FRIENDS, THE QUAKERS."  380 U.S.,AT 187. 
ACCORDINGLY, THE COURT FOUND THAT SEEGER SHOULD BE GRANTED
CONSCIENTIOUS OBJECTOR STATUS. 

IN THE CASE BEFORE US THE GOVERNMENT SEEKS TO DISTINGUISH OUR
HOLDING IN SEEGER ON BASICALLY TWO GROUNDS, BOTH OF WHICH WERE RELIED
UPON BY THE COURT OF APPEALS IN AFFIRMING WELSH'S CONVICTION.  FIRST,
IT IS STRESSED THAT WELSH WAS FAR MORE INSISTENT AND EXPLICIT THAN
SEEGER IN DENYING THAT HIS VIEWS WERE RELIGIOUS.  FOR EXAMPLE, IN
FILLING OUT THEIR CONSCIENTIOUS OBJECTOR APPLICATIONS, SEEGER PUT
QUOTATION MARKS AROUND THE WORD "RELIGIOUS," BUT WELSH STRUCK THE WORD
"RELIGIOUS" ENTIRELY AND LATER CHARACTERIZED HIS BELIEFS AS HAVING BEEN
FORMED "BY READING IN THE FIELDS OF HISTORY AND SOCIOLOGY."  APP. 22. 
THE COURT OF APPEALS FOUND THAT WELSH HAD "DENIED THAT HIS OBJECTION TO
WAR WAS PREMISED ON RELIGIOUS BELIEF" AND CONCLUDED THAT "(THE APPEAL
BOARD WAS ENTITLED TO TAKE HIM AT HIS WORD."  404 F.2D, AT 1082.  WE
THINK THIS ATTEMPT TO DISTINGUISH SEEGER FAILS FOR THE REASON THAT IT
PLACES UNDUE EMPHASIS ON THE REGISTRANT'S INTERPRETATION OF HIS OWN
BELIEFS.  THE COURT'S STATEMENT IN SEEGER THAT A REGISTRANT'S
CHARACTERIZATION OF HIS OWN BELIEF AS "RELIGIOUS" SHOULD CARRY GREAT
WEIGHT, 380 U.S.,AT 184, DOES NOT IMPLY THAT HIS DECLARATION THAT HIS
VIEWS ARE NONRELIGIOUS SHOULD BE TREATED SIMILARLY.  WHEN A REGISTRANT
STATES THAT HIS OBJECTIONS TO WAR ARE "RELIGIOUS," THAT INFORMATION IS
HIGHLY RELEVANT TO THE QUESTION OF THE FUNCTION HIS BELIEFS HAVE IN HIS
LIFE.  BUT VERY FEW REGISTRANTS ARE FULLY AWARE OF THE BROAD SCOPE OF
THE WORD "RELIGIOUS" AS USED IN SEC. 6(J), AND ACCORDINGLY A
REGISTRANT'S STATEMENT THAT HIS BELIEFS ARE NONRELIGIOUS IS A HIGHLY
UNRELIABLE GUIDE FOR THOSE CHARGED WITH ADMINISTERING THE EXEMPTION. 
WELSH HIMSELF PRESENTS A CASE IN POINT.  ALTHOUGH HE ORIGINALLY
CHARACTERIZED HIS BELIEFS AS NONRELIGIOUS, HE LATER UPON REFLECTION
WROTE A LONG AND THOUGHTFUL LETTER TO HIS APPEAL BOARD IN WHICH HE
DECLARED THAT HIS BELIEFS WERE "CERTAINLY RELIGIOUS IN THE ETHICAL
SENSE OF THE WORD."  HE EXPLAINED: 

     "I BELIEVE I MENTIONED TAKING OF LIFE AS NOT BEING, FOR ME, A

  RELIGIOUS WRONG.  AGAIN, I ASSUMED MR. (BRADY (THE DEPARTMENT OF

  JUSTICE HEARING OFFICER)) WAS USING THE WORD 'RELIGIOUS' IN THE

  CONVENTIONAL SENSE, AND, IN ORDER TO BE PERFECTLY HONEST DID NOT

  CHARACTERIZE MY BELIEF AS 'RELIGIOUS.'"  APP. 44 

THE GOVERNMENT ALSO SEEKS TO DISTINGUISH SEEGER ON THE GROUND THAT
WELSH'S VIEWS, UNLIKE SEEGER'S,WERE "ESSENTIALLY POLITICAL,
SOCIOLOGICAL, OR PHILOSOPHICAL VIEWS OR A MERELY PERSONAL MORAL CODE." 
AS PREVIOUSLY NOTED, THE GOVERNMENT MADE THE SAME ARGUMENT ABOUT
SEEGER, AND NOT WITHOUT REASON, FOR SEEGER'S VIEWS HAD A SUBSTANTIAL
POLITICAL DIMENSION.  SUPRA, AT 338-339.  IN THIS CASE, WELSH'S
CONSCIENTIOUS OBJECTION TO WAR WAS UNDENIABLY BASED IN PART ON HIS
PERCEPTION OF WORLD POLITICS.  IN A LETTER TO HIS LOCAL BOARD, HE
WROTE:     "I CAN ONLY ACT ACCORDING TO WHAT I AM AND WHAT I SEE.  AND
I SEE THAT THE MILITARY COMPLEX WASTES BOTH HUMAN AND MATERIAL
RESOURCES, THAT IT FOSTERS DISREGARD FOR (WHAT I CONSIDER A PARAMOUNT
CONCERN) HUMAN NEEDS AND ENDS; I SEE THAT THE MEANS WE EMPLOY TO
'DEFEND' OUR 'WAY OF LIFE' PROFOUNDLY CHANGE THAT WAY OF LIFE.  I SEE
THAT IN OUR FAILURE TO RECOGNIZE THE POLITICAL, SOCIAL, AND ECONOMIC
REALITIES OF THE WORLD, WE, AS A NATION, FAIL OUR RESPONSIBILITY AS A
NATION."  APP. 30.  WE CERTAINLY DO NOT THINK THAT SEC. 6(J)'S
EXCLUSION OF THOSE PERSONS WITH "ESSENTIALLY POLITICAL, SOCIOLOGICAL,
OR PHILOSOPHICAL VIEWS OR A MERELY PERSONAL MORAL CODE" SHOULD BE READ
TO EXCLUDE THOSE WHO HOLD STRONG BELIEFS ABOUT OUR DOMESTIC AND FOREIGN
AFFAIRS OR EVEN THOSE WHOSE CONSCIENTIOUS OBJECTION TO PARTICIPATION IN
ALL WARS IS FOUNDED TO A SUBSTANTIAL EXTENT UPON CONSIDERATIONS OF
PUBLIC POLICY.  THE TWO GROUPS OF REGISTRANTS THAT OBVIOUSLY DO FALL
WITHIN THESE EXCLUSIONS FROM THE EXEMPTION ARE THOSE WHOSE BELIEFS ARE
NOT DEEPLY HELD AND THOSE WHOSE OBJECTION TO WAR DOES NOT REST AT ALL
UPON MORAL, ETHICAL, OR RELIGIOUS PRINCIPLE BUT INSTEAD RESTS SOLELY
UPON CONSIDERATIONS OF POLICY, PRAGMATISM, OR EXPEDIENCY.  IN APPLYING
SEC. 6(J)'S EXCLUSION OF THOSE WHOSE VIEWS ARE "ESSENTIALLY POLITICAL,
SOCIOLOGICAL, OR PHILOSOPHICAL" OR OF THOSE WHO HAVE A "MERELY PERSONAL
MORAL CODE," IT SHOULD BE REMEMBERED THAT THESE EXCLUSIONS ARE
DEFINITIONAL AND DO NOT THEREFORE RESTRICT THE CATEGORY OF PERSONS WHO
ARE CONSCIENTIOUS OBJECTORS BY "RELIGIOUS TRAINING AND BELIEF."  ONCE
THE SELECTIVE SERVICE SYSTEM HAS TAKEN THE FIRST STEP AND DETERMINED
UNDER THE STANDARDS SET OUT HERE AND IN SEEGER THAT THE REGISTRANT IS A
"RELIGIOUS" CONSCIENTIOUS OBJECTOR, IT FOLLOWS THAT HIS VIEWS CANNOT BE
"ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR PHILOSOPHICAL."  NOR CAN THEY
BE A "MERELY PERSONAL MORAL CODE."  SEE UNITED STATES V. SEEGER, 380
U.S.,AT 186. 

WELSH STATED THAT HE "BELIEVED) THE TAKING OF LIFE-- ANYONE'S LIFE--
TO BE MORALLY WRONG."  APP. 44.  IN HIS ORIGINAL CONSCIENTIOUS OBJECTOR
APPLICATION HE WROTE THE FOLLOWING: 

     "I BELIEVE THAT HUMAN LIFE IS VALUABLE IN AND OF ITSELF; IN
ITS

  LIVING; THEREFORE I WILL NOT INJURE OR KILL ANOTHER HUMAN BEING. 

  THIS BELIEF (AND THE CORRESPONDING 'DUTY' TO ABSTAIN FROM

  VIOLENCE TOWARD ANOTHER PERSON) IS NOT 'SUPERIOR TO THOSE ARISING

  FROM ANY HUMAN RELATION.'  ON THE CONTRARY:  IT IS ESSENTIAL TO

  EVERY HUMAN RELATION.  I CANNOT, THEREFORE, CONSCIENTIOUSLY

  COMPLY WITH THE GOVERNMENT'S INSISTENCE THAT I ASSUME DUTIES

  WHICH I FEEL ARE IMMORAL AND TOTALLY REPUGNANT."  APP. 10. 

WELSH ELABORATED HIS BELIEFS IN LATER COMMUNCIATIONS WITH SELECTIVE
SERVICE OFFICIALS.  ON THE BASIS OF THESE BELIEFS AND THE CONCLUSION OF
THE COURT OF APPEALS THAT HE HELD THEM "WITH THE STRENGTH OF MORE
TRADITIONAL RELIGIOUS CONVICTIONS," 404 F.2D, AT 1081, WE THINK WELSH
WAS CLEARLY ENTITLED TO A CONSCIENTIOUS OBJECTOR EXEMPTION.  SECTION
6(J) REQUIRES NO MORE.  THAT SECTION EXEMPTS FROM MILITARY SERVICE ALL
THOSE WHOSE CONSCIENCES, SPURRED BY DEEPLY HELD MORAL, ETHICAL, OR
RELIGIOUS BELIEFS, WOULD GIVE THEM NO REST OR PEACE IF THEY ALLOWED
THEMSELVES TO BECOME A PART OF AN INSTRUMENT OF WAR. 

THE JUDGMENT IS

              REVERSED. 

/1/  62 STAT. 612.  SEE ALSO 50 U.S.C. APP. 456(J).  THE PERTINENT
PROVISION AS IT READ DURING THE PERIOD RELEVANT TO THIS CASE IS SET OUT
INFRA, AT 336. 

/2/  62 STAT. 612.  AN AMENDMENT TO THE ACT IN 1967, SUBSEQUENT TO
THE COURT'S DECISION IN THE SEEGER CASE, DELETED THE REFERENCE TO A
"SUPREME BEING" BUT CONTINUED TO PROVIDE THAT "RELIGIOUS TRAINING AND
BELIEF" DOES NOT INCLUDE "ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR
PHILOSOPHICAL VIEWS, OR A MERELY PERSONAL MORAL CODE."  81 STAT. 104,
50 U.S.C. APP. 456(J) (1964 ED., SUPP. IV). 

/3/  IN HIS ORIGINAL APPLICATION IN APRIL 1964, WELSH STATED THAT HE
DID NOT BELIEVE IN A SUPREME BEING, BUT IN A LETTER TO HIS LOCAL BOARD
IN JUNE 1965, HE REQUESTED THAT HIS ORIGINAL ANSWER BE STRICKEN AND THE
QUESTION LEFT OPEN.  APP. 29. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

CANDOR REQUIRES ME TO SAY THAT I JOINED THE COURT'S OPINION IN
UNITED STATES V. SEEGER, 380 U.S. 163 (1965), ONLY WITH THE GRAVEST
MISGIVINGS AS TO WHETHER IT WAS A LEGITIMATE EXERCISE IN STATUTORY
CONSTRUCTION, AND TODAY'S DECISION CONVINCES ME THAT IN DOING SO I MADE
A MISTAKE WHICH I SHOULD NOW ACKNOWLEDGE.  /1/ 

IN SEEGER THE COURT CONSTRUED SEC. 6(J) OF THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT SO AS TO SUSTAIN A CONSCIENTIOUS OBJECTOR
CLAIM NOT FOUNDED ON A THEISTIC BELIEF.  THE COURT, IN TREATING WITH
THE PROVISION OF THE STATUTE THAT LIMITED CONSCIENTIOUS OBJECTOR CLAIMS
TO THOSE STEMMING FROM BELIEF IN "A SUPREME BEING," THERE SAID:
"CONGRESS, IN USING THE EXPRESSION 'SUPREME BEING' RATHER THAN THE
DESIGNATION 'GOD,' WAS MERELY CLARIFYING THE MEANING OF RELIGIOUS
TRAINING AND BELIEF SO AS TO EMBRACE ALL RELIGIONS AND TO EXCLUDE
ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR PHILOSOPHICAL VIEWS," AND HELD
THAT THE TEST OF BELIEF "'IN A RELATION TO A SUPREME BEING' IS WHETHER
A GIVEN BELIEF THAT IS SINCERE AND MEANINGFUL OCCUPIES A PLACE IN THE
LIFE OF ITS POSSESSOR PARALLEL TO THAT FILLED BY THE ORTHODOX BELIEF IN
GOD OF ONE WHO CLEARLY QUALIFIES FOR THE EXEMPTION."  380 U.S.,AT 165
166.  TODAY THE PREVAILING OPINION MAKES EXPLICIT ITS TOTAL ELIMINATION
OF THE STATUTORILY REQUIRED RELIGIOUS CONTENT FOR A CONSCIENTIOUS
OBJECTOR EXEMPTION.  THE PREVAILING OPINION NOW SAYS:  "IF AN
INDIVIDUAL DEEPLY AND SINCERELY HOLDS BELIEFS THAT ARE PURELY ETHICAL
OR MORAL IN SOURCE AND CONTENT BUT THAT NEVERTHELESS IMPOSE UPON HIM A
DUTY OF CONSCIENCE TO REFRAIN FROM PARTICIPATING IN ANY WAR AT ANY
TIME", HE QUALIFIES FOR A SEC. 6(J) EXEMPTION. 

IN MY OPINION, THE LIBERTIES TAKEN WITH THE STATUTE BOTH IN SEEGER
AND TODAY'S DECISION CANNOT BE JUSTIFIED IN THE NAME OF THE FAMILIAR
DOCTRINE OF CONSTRUING FEDERAL STATUTES IN A MANNER THAT WILL AVOID
POSSIBLE CONSTITUTIONAL INFIRMITIES IN THEM.  THERE ARE LIMITS TO THE
PERMISSIBLE APPLICATION OF THAT DOCTRINE, AND, AS I WILL UNDERTAKE TO
SHOW IN THIS OPINION, THOSE LIMITS WERE CROSSED IN SEEGER, AND EVEN
MORE APPRENTLY HAVE BEEN EXCEEDED IN THE PRESENT CASE.  I THEREFORE
FIND MYSELF UNABLE TO ESCAPE FACING THE CONSTITUTIONAL ISSUE THAT THIS
CASE SQUARELY PRESENTS: WHETHER SEC. 6(J) IN LIMITING THIS DRAFT
EXEMPTION TO THOSE OPPOSED TO WAR IN GENERAL BECAUSE OF THEISTIC
BELIEFS RUNS AFOUL OF THE RELIGIOUS CLAUSES OF THE FIRST AMENDMENT. 
FOR REASONS LATER APPEARING I BELIEVE IT DOES, AND ON THAT BASIS I
CONCUR IN THE JUDGMENT REVERSING THIS CONVICTION, AND ADOPT THE TEST
ANNOUNCED BY MR. JUSTICE BLACK, NOT AS A MATTER OF STATUTORY
CONSTRUCTION, BUT AS THE TOUCHSTONE FOR SALVAGING A CONGRESSIONAL
POLICY OF LONG STANDING THAT WOULD OTHERWISE HAVE TO BE NULLIFIED. 

        I 


     "NOTHING CONTAINED IN THIS TITLE SHALL BE CONSTRUED TO REQUIRE

  ANY PERSON TO BE SUBJECT TO COMBATANT TRAINING AND SERVICE IN THE

  ARMED FORCES OF THE UNITED STATES WHO, BY REASON OF RELIGIOUS

  TRAINING AND BELIEF, IS CONSCIENTIOUSLY OPPOSED TO PARTICIPATION

  IN WAR IN ANY FORM.  RELIGIOUS TRAINING AND BELIEF IN THIS

  CONNECTION MEANS AN INDIVIDUAL'S BELIEF IN A RELATION TO A

  SUPREME BEING INVOLVING DUTIES SUPERIOR TO THOSE ARISING FROM ANY

  HUMAN RELATION, BUT DOES NOT INCLUDE ESSENTIALLY POLITICAL,

SOCIOLOGICAL, OR PHILOSOPHICAL VIEWS OR A MERELY PERSONAL MORAL

  CODE."  UNIVERSAL MILITARY AND SERVICE ACT OF 1948, SEC. 6(J), 62

  STAT. 612, 50 U.S.C. APP. 456(J). 

THE ISSUE IS THEN WHETHER WELSH'S OPPOSITION TO WAR IS FOUNDED ON
"RELIGIOUS TRAINING AND BELIEF" AND HENCE "BELIEF IN A RELATION TO A
SUPREME BEING" AS CONGRESS USED THOSE WORDS.  IT IS OF COURSE TRUE THAT
CERTAIN WORDS ARE MORE PLASTIC IN MEANING THAN OTHERS.  "SUPREME BEING"
IS A CONCEPT OF THEOLOGY AND PHILOSOPHY, NOT A TECHNICAL TERM, AND
CONSEQUENTLY MAY BE, IN SOME CIRCUMSTANCES, CAPABLE OF BEARING A
CONTEMPORARY CONSTRUCTION AS NOTIONS OF THEOLOGY AND PHILOSOPHY
EVOLVE.  CF. UNITED STATES V. STORRS, 272 U.S. 652 (1926).  THIS
LANGUAGE APPEARS, HOWEVER, IN A CONGRESSIONAL ENACTMENT; IT IS NOT A
PHRASE OF THE CONSTITUTION, LIKE "RELIGION" OR "SPEECH," WHICH THIS
COURT IS FREER TO CONSTRUE IN LIGHT OF EVOLVING NEEDS AND
CIRCUMSTANCES.  CF. JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495
(1952), AND MY CONCURRING OPINION IN ESTES V. TEXAS, 381 U.S. 532 595
596 (1965), AND MY OPINION CONCURRING IN THE JUDGMENT IN GARNER V.
LOUISIANA, 368 U.S. 157, 185 (1961).  NOR IS IT SO BROAD A STATUTORY
DIRECTIVE, LIKE THAT OF THE SHERMAN ACT, THAT WE MAY ASSUME THAT WE ARE
FREE TO ADOPT AND SHAPE POLICIES LIMITED ONLY BY THE MOST GENERAL
STATEMENT OF PURPOSE.  CF., E.G., STANDARD OIL CO. V. UNITED STATES,
221 U.S. 1 (1911).  IT IS CONGRESS' WILL THAT MUST HERE BE DIVINED.  IN
THAT ENDEAVOR IT IS ONE THING TO GIVE WORDS A MEANING NOT NECESSARILY
ENVISIONED BY CONGRESS SO AS TO ADAPT THEM TO CIRCUMSTANCES ALSO
UNCONTEMPLATED BY THE LEGISLATURE IN ORDER TO ACHIEVE THE LEGISLATIVE
POLICY, HOLY TRINITY CHURCH V. UNITED STATES, 143 U.S. 457 (1892); IT
IS A WHOLLY DIFFERENT MATTER TO DEFINE WORDS SO AS TO CHANGE POLICY. 
THE LIMITS OF THIS COURT'S MANDATE TO STRETCH CONCEDEDLY ELASTIC
CONGRESSIONAL LANGUAGE ARE FIXED IN ALL CASES BY THE CONTEXT OF ITS
USAGE AND LEGISLATIVE HISTORY, IF AVAILABLE, THAT ARE THE BEST GUIDES
TO CONGRESSIONAL PURPOSE AND THE LENGTHS TO WHICH CONGRESS ENACTED A
POLICY.  ROSADO V. WYMAN, 397 U.S. 397 (1970).  /2/  THE PREVAILING
OPINION TODAY SNUBS BOTH GUIDELINES FOR IT IS APPARENT FROM A TEXTUAL
ANALYSIS OF SEC. 6(J) AND THE LEGISLATIVE HISTORY THAT THE WORDS OF
THIS SECTION, AS USED AND UNDERSTOOD BY CONGRESS, FALL SHORT OF
ENACTING THE BROAD POLICY OF EXEMPTING FROM MILITARY SERVICE ALL
INDIVIDUALS WHO IN GOOD FAITH OPPOSE ALL WAR. 

        A 

THE NATURAL READING OF SEC. 6(J), WHICH QUITE EVIDENTLY DRAWS A
DISTINCTION BETWEEN THEISTIC AND NONTHEISTIC RELIGIONS, IS THE ONLY ONE
THAT IS CONSISTENT WITH THE LEGISLATIVE HISTORY.  SECTION 5(G) OF THE
1940 DRAFT ACT EXEMPTED INDIVIDUALS WHOSE OPPOSITION TO WAR COULD BE
TRACED TO "RELIGIOUS TRAINING AND BELIEF,"  54 STAT. 889, WITHOUT ANY
ALLUSION TO A SUPREME BEING.  IN UNITED STATES V. KAUTEN, 133 F.2D 703
(C.A. 2D CIR. 1943), THE SECOND CIRCUIT, SPEAKING THROUGH JUDGE
AUGUSTUS HAND, BROADLY CONSTRUED "RELIGIOUS TRAINING AND BELIEF" TO
INCLUDE A "BELIEF FINDING EXPRESSION IN A CONSCIENCE WHICH
CATEGORICALLY REQUIRES THE BELIEVER TO DISREGARD ELEMENTARY SELF
INTEREST AND TO ACCEPT MARTYRDOM IN PREFERENCE TO TRANSGRESSING ITS
TENETS."  133 F.2D, AT 708.  THE VIEW WAS FURTHER ELABORATED IN
SUBSEQUENT DECISIONS OF THE SECOND CIRCUIT, SEE UNITED STATES EX REL.
PHILLIPS V. DOWNER, 135 F.2D 521 (C.A. 2D CIR. 1943); UNITED STATES EX
REL. REEL V. BADT, 141 F.2D 845 (C.A. 2D CIR. 1944).  THIS EXPANSIVE
INTERPRETATION OF SEC. 5(G) WAS REJECTED BY A DIVIDED NINTH CIRCUIT IN
BERMAN V. UNITED STATES, 156 F.2D 377, 380-381 (1946): 

     "IT IS OUR OPINION THAT THE EXPRESSION 'BY REASON OF RELIGIOUS

  TRAINING AND BELIEF' . . . WAS WRITTEN INTO THE STATUTE FOR THE

SPECIFIC PURPOSE OF DISTINGUISHING BETWEEN A CONSCIENTIOUS SOCIAL

  BELIEF, OR A SINCERE DEVOTION TO A HIGH MORALISTIC PHILOSOPHY,

  AND ONE BASED UPON AN INDIVIDUAL'S BELIEF IN HIS RESPONSIBILITY

  TO AN AUTHORITY HIGHER AND BEYOND ANY WORLDLY ONE. 

        .          .          .          . 

"(IN UNITED STATES V. MACINTOSH, 283 U.S. 605 . . . MR. (CHIEF)
JUSTICE HUGHES IN HIS DISSENT . . . SAID:  'THE ESSENCE OF RELIGION IS
BELIEF IN A RELATION TO GOD INVOLVING DUTIES SUPERIOR TO THOSE ARISING
FROM ANY HUMAN RELATION.'"  THE UNMISTAKABLE AND INESCAPABLE THRUST OF
THE BERMAN OPINION, THAT RELIGION IS TO BE CONCEIVED IN THEISTIC TERMS,
IS RENDERED NO LESS STRAIGHTFORWARD BY THE COURT'S ELABORATION ON THE
DIFFERENCE BETWEEN BELIEFS HELD AS A MATTER OF MORAL OR PHILOSOPHICAL
CONVICTION AND THOSE INSPIRED BY RELIGIOUS UPBRINGING AND ADHERENCE TO
FAITH. 

     "THERE ARE THOSE WHO HAVE A PHILOSOPHY OF LIFE, AND WHO LIVE
UP

  TO IT.  THERE IS EVIDENCE THAT THIS IS SO IN REGARD TO

  APPELLANT.  HOWEVER, NO MATTER HOW PURE AND ADMIRABLE HIS STANDAR

  MAY BE, AND NO MATTER HOW DEVOTEDLY HE ADHERES TO IT, HIS

  PHILOSOPHY AND MORALS AND SOCIAL POLICY WITHOUT THE CONCEPT OF

  DEITY CANNOT BE SAID TO BE RELIGION IN THE SENSE OF THAT TERM AS

  IT IS USED IN THE STATUTE.  IT IS SAID IN STATE V. AMANA SOCIETY,

  132 IOWA 304, 109 N.W. 894, 898 . . .:  'SURELY A SCHEME OF LIFE

  DESIGNED TO OBVIATE SUCH RESULTS (MAN'S INHUMANITY TO MAN), AND

  BY REMOVING TEMPTATIONS, AND ALL THE INDUCEMENTS OF AMBITION AND

  AVARICE, TO NURTURE THE VIRTUES OF UNSELFISHNESS, PATIENCE, LOVE,

  AND SERVICE, OUGHT NOT TO BE DENOUNCED AS NOT PERTAINING TO

  RELIGION WHEN ITS DEVOTEE REGARDS IT AS AN ESSENTIAL TENET OF

  THEIR RELIGIOUS FAITH.'"  IBID. 

IN THE WAKE OF THIS INTERCIRCUIT DIALOGUE, CRYSTALLIZED BY THE
DISSENT IN BERMAN WHICH ESPOUSED THE SECOND CIRCUIT INTERPRETATION IN
KAUTEN, SUPRA, CONGRESS ENACTED SEC. 6(J) IN 1948.  THAT CONGRESS
INTENDED TO ANOINT THE NINTH CIRCUIT'S INTERPRETATION OF SEC. 5(G)
WOULD SEEM BEYOND QUESTION IN VIEW OF THE SIMILARITY OF THE STATUTORY
LANGUAGE TO THAT USED BY CHIEF JUSTICE HUGHES IN HIS DISSENTING OPINION
IN MACINTOSH AND QUOTED IN BERMAN AND THE SENATE REPORT.  THE FIRST
HALF OF THE NEW LANGUAGE WAS ALMOST WORD FOR WORD THAT OF CHIEF JUSTICE
HUGHES IN MACINTOSH, AND QUOTED BY THE BERMAN MAJORITY; /3/  AND THE
SENATE COMMITTEE REPORT ADVERTED TO BERMAN, THUS FORECLOSING ANY
POSSIBLE SPECULATION AS TO WHETHER CONGRESS WAS AWARE OF THE POSSIBLE
ALTERNATIVES.  THE REPORT STATED:     "THIS SECTION REENACTS
SUBSTANTIALLY THE SAME PROVISIONS AS WERE FOUND IN SUBSECTION 5(G) OF
THE 1940 ACT.  EXEMPTION EXTENDS TO ANYONE WHO, BECAUSE OF RELIGIOUS
TRAINING AND BELIEF IN HIS RELATIONSHIP TO A SUPREME BEING, IS
CONSCIENTIOUSLY OPPOSED TO COMBATANT MILITARY SERVICE OR TO BOTH
COMBATANT AND NONCOMBATANT MILITARY SERVICE.  (SEE UNITED STATES V.
BERMAN, 156 F.(2D) 377, CERTIORARI DENIED, 329 U.S. 795.)"  S. REP. NO.
1268, 80TH CONG., 2D SESS., 14.  /4/             B 

AGAINST THIS LEGISLATIVE HISTORY IT IS A REMARKABLE FEAT OF JUDICIAL
SURGERY TO REMOVE, AS DID SEEGER, THE THEISTIC REQUIREMENT OF SEC.
6(J).  THE PREVAILING OPINION TODAY, HOWEVER, IN THE NAME OF
INTERPRETING THE WILL OF CONGRESS, HAS PERFORMED A LOBOTOMY AND
COMPLETELY TRANSFORMED THE STATUTE BY READING OUT OF IT ANY DISTINCTION
BETWEEN RELIGIOUSLY ACQUIRED BELIEFS AND THOSE DERIVING FROM
"ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR PHILOSOPHICAL VIEWS OR A
MERELY PERSONAL MORAL CODE." 

IN THE REALM OF STATUTORY CONSTRUCTION IT IS APPROPRIATE TO SEARCH
FOR MEANING IN THE CONGRESSIONAL VOCABULARY IN A LEXICON MOST PROBABLY
CONSULTED BY CONGRESS.  RESORT TO WEBSTER'S /5/  REVEALS THAT THE
MEANINGS OF "RELIGION" ARE:  "1.  THE SERVICE AND ADORATION OF GOD OR A
GOD AS EXPRESSED IN FORMS OF WORSHIP, IN OBEDIENCE TO DIVINE COMMANDS .
. .; 2.  THE STATE OF LIFE OF A RELIGIOUS . . .; 3.  ONE OF THE SYSTEMS
OF FAITH AND WORSHIP; A FORM OF THEISM; A RELIGIOUS FAITH . . .; 4. 
THE PROFESSION OR PRACTICE OF RELIGIOUS BELIEFS; RELIGIOUS OBSERVANCES
COLLECTIVELY; PL. RITES; 5.  DEVOTION OR FIDELITY; . . .
CONSCIENTIOUSNESS; 6.  AN APPREHENSION, AWARENESS, OR CONVICTION OF THE
EXISTENCE OF A SUPREME BEING, OR MORE WIDELY, OF SUPERNATURAL POWERS OR
INFLUENCES CONTROLLING ONE'S OWN, HUMANITY'S, OR NATURE'S DESTINY;
ALSO, SUCH AN APPREHENSION, ETC., ACCOMPANIED BY OR AROUSING REVERENCE,
LOVE, GRATITUDE, THE WILL TO OBEY AND SERVE, AND THE LIKE . . . ." 

OF THE FIVE PERTINENT DEFINITIONS FOUR INCLUDE THE NOTION OF EITHER
A SUPREME BEING OR A COHESIVE, ORGANIZED GROUP PURSUING A COMMON
SPIRITUAL PURPOSE TOGETHER.  WHILE, AS THE COURT'S OPINION IN SEEGER
POINTS OUT, THESE DEFINITIONS DO NOT EXHAUST THE ALMOST INFINITE AND
SOPHISTICATED POSSIBILITIES FOR DEFINING "RELIGION," THERE IS STRONG
EVIDENCE THAT CONGRESS RESTRICTED, IN THIS INSTANCE, THE WORD TO ITS
CONVENTIONAL SENSE.  THAT IT IS DIFFICULT TO PLOT THE SEMANTIC PENUMBRA
OF THE WORD "RELIGION" DOES NOT RENDER THIS TERM SO PLASTIC IN MEANING
THAT THE COURT IS ENTITLED, AS MATTER OF STATUTORY CONSTRUCTION, TO
INCLUDE THAT ANY ASSERTED AND STRONGLY HELD BELIEF SATISFIES ITS
REQUIREMENTS.  IT MUST BE RECOGNIZED THAT THE PERMISSIBLE SHADOW OF
CONNOTATION IS LIMITED BY THE CONTEXT IN WHICH WORDS ARE USED.  IN SEC.
6(J) CONGRESS HAS INCLUDED NOT ONLY A REFERENCE TO A SUPREME BEING BUT
HAS ALSO EXPLICITLY CONTRASTED "RELIGIOUS" BELIEFS WITH THOSE THAT ARE
"ESSENTIALLY POLITICAL, SICOLOGICAL, OR PHILOSOPHICAL" AND A "PERSONAL
MORAL CODE."  THIS EXCEPTION CERTAINLY IS, AT THE VERY LEAST, THE
STATUTORY BOUNDARY, THE "ASYMPTOTE," OF THE WORD "RELIGION."  /6/ 

FOR ME THIS DICHOTOMY REVEALS THAT CONGRESS WAS NOT EMBRACING THAT
DEFINITION OF RELIGION THAT ALONE SPEAKS IN TERMS OF "DEVOTION OR
FIDELITY" TO INDIVIDUAL PRINCIPLES ACQUIRED ON AN INDIVIDUALIZED BASIS
BUT WAS ADOPTING, AT LEAST, THOSE MEANINGS THAT ASSOCIATE RELIGION WITH
FORMAL, ORGANIZED WORSHIP OR SHARED BELIEFS BY A RECOGNIZABLE AND
COHESIVE GROUP.  INDEED, THIS REQUIREMENT WAS EXPLICIT IN THE
PREDECESSOR TO THE 1940 STATUTE.  THE DRAFT ACT OF 1917 CONDITIONED
CONSCIENTIOUS OBJECTOR STATUS ON MEMBERSHIP IN OR AFFILIATION WITH A
"WELL-RECOGNIZED RELIGIOUS SECT OR ORGANIZATION (THEN) ORGANIZED AND
EXISTING AND WHOSE EXISTING CREED OR PRINCIPLES FORBADE) ITS MEMBERS TO
PARTICIPATE IN WAR IN ANY FORM . . . ."  SEC. 4, 40 STAT. 78.  THAT
SEC. 5(G) OF THE 1940 ACT ELIMINATED THE AFFILIATION AND MEMBERSHIP
REQUIREMENT DOES NOT, IN MY VIEW, MEAN AS THE COURT, IN EFFECT,
CONCLUDED IN SEEGER THAT CONGRESS WAS EMBRACING A SECULAR DEFINITION OF
RELIGION.  /7/ 

UNLESS WE ARE TO ASSUME AN ALICE-IN-WONDERLAND WORLD WHERE WORDS
HAVE NO MEANING, I THINK IT FAIR TO SAY THAT CONGRESS' CHOICE OF
LANGUAGE CANNOT FAIL TO CONVEY TO THE DISCERNING READER THE VERY POLICY
CHOICE THAT THE PREVAILING OPINION TODAY COMPLETELY OBLITERATES:  THAT
BETWEEN CONVENTIONAL RELIGIONS THAT USUALLY HAVE AN ORGANIZED AND
FORMAL STRUCTURE AND DOGMA AND A COHESIVE GROUP IDENTITY, EVEN WHEN
NONTHEISTIC, AND CULTS THAT REPRESENT SCHOOLS OF THOUGHT AND IN THE
USUAL CASE ARE WITHOUT FORMAL STRUCTURE OR ARE, AT MOST, LOOSE AND
INFORMAL ASSOCIATIONS OF INDIVIDUALS WHO SHARE COMMON ETHICAL, MORAL,
OR INTELLECTUAL VIEWS. 

        II 

WHEN THE PLAIN THRUST OF A LEGISLATIVE ENACTMENT CAN ONLY BE
CIRCUMVENTED BY DISTORTION TO AVERT AN INEVITABLE CONSTITUTIONAL
COLLISION, IT IS ONLY BY EXALTING FORM OVER SUBSTANCE THAT ONE CAN
JUSTIFY THIS VEERING OFF THE PATH THAT HAS BEEN PLAINLY MARKED BY THE
STATUTE.  SUCH A COURSE BETRAYS EXTREME SKEPTICISM AS TO
CONSTITUTIONALITY, AND, IN THIS INSTANCE, REFLECTS A GROPING TO
PRESERVE THE CONSCIENTIOUS OBJECTOR EXEMPTION AT ALL COST. 

I CANNOT SUBSCRIBE TO A WHOLLY EMASCULATED CONSTRUCTION OF A STATUTE
TO AVOID FACING A LATENT CONSTITUTIONAL QUESTION, IN PURPORTED FIDELITY
TO THE SALUTARY DOCTRINE OF AVOIDING UNNECESSARY RESOLUTION OF
CONSTITUTIONAL ISSUES, A PRINCIPLE TO WHICH I FULLY ADHERE.  SEE
ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 348 (1936)
(BRANDEIS, J., CONCURRING).  IT IS, OF COURSE, DESIRABLE TO SALVAGE BY
CONSTRUCTION LEGISLATIVE ENACTMENTS WHENEVER THERE IS GOOD REASON TO
BELIEVE THAT CONGRESS DID NOT INTEND TO LEGISLATE CONSEQUENCES THAT ARE
UNCONSTITUTIONAL, BUT IT IS NOT PERMISSLBLE, IN MY JUDGMENT, TO TAKE A
LATERAL STEP THAT ROBS LEGISLATION OF ALL MEANING IN ORDER TO AVERT THE
COLLISION BETWEEN ITS PLAINLY INTENDED PURPOSE AND THE COMMANDS OF THE
CONSTITUTION.  CF. YATES V. UNITED STATES, 354 U.S. 298 (1957).  AS THE
COURT STATED IN APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 515
(1964): 

     "IT MUST BE REMEMBERED THAT '(ALTHOUGH THIS COURT WILL OFTEN

  STRAIN TO CONSTRUE LEGISLATION SO AS TO SAVE IT AGAINST

  CONSTITUTIONAL ATTACK, IT MUST NOT AND WILL NOT CARRY THIS TO THE

  POINT OF PERVERTING THE PURPOSE OF A STATUTE . . .'  OR
JUDICIALLY

  REWRITING IT.  SCALES V. UNITED STATES (367 U.S. 203, 211).  TO

  PUT THE MATTER ANOTHER WAY, THIS COURT WILL NOT CONSIDER THE

  ABSTRACT QUESTION OF WHETHER CONGRESS MIGHT HAVE ENACTED A VALID

STATUTE BUT INSTEAD MUST ASK WHETHER THE STATUTE THAT CONGRESS

  DID ENACT WILL PERMISSIBLY BEAR A CONSTRUCTION RENDERING IT FREE

  FROM CONSTITUTIONAL DEFECTS." 

THE ISSUE COMES SHARPLY INTO FOCUE IN MR. JUSTICE CARDOZO'S
STATEMENT FOR THE COURT IN MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373,
379 (1933): 

"'A STATUTE MUST BE CONSTRUED, IF FAIRLY POSSIBLE, SO AS TO AVOID
NOT ONLY THE CONCLUSION THAT IT IS UNCONSTITUTIONAL,BUT ALSO GRAVE
DOUBTS UPON THAT SCORE' . . . . BUT AVOIDANCE OF A DIFFICULTY WILL NOT
BE PRESSED TO THE POINT OF DISINGENUOUS EVASION.  HERE THE INTENTION OF
THE CONGRESS IS REVEALED TOO DISTINCTLY TO PERMIT US TO IGNORE IT
BECAUSE OF MERE MISGIVINGS AS TO POWER.  THE PROBLEM MUST BE FACED AND
ANSWERED." 

IF AN IMPORTANT CONGRESSIONAL POLICY IS TO BE PERPETUATED BY
RECASTING UNCONSTITUTIONAL LEGISLATION, AS THE PREVAILING OPINION HAS
DONE HERE, THE ANALYTICALLY SOUND APPROACH IS TO ACCEPT RESPONSIBILITY
FOR THIS DECISION.  ITS JUSTIFICATION CANNOT BE BY RESORT TO
LEGISLATIVE INTENT, AS THAT TERM IS USUALLY EMPLOYED,BUT BY A DIFFERENT
KIND OF LEGISLATIVE INTENT, NAMELY THE PRESUMED GRANT OF POWER TO THE
COURTS TO DECIDE WHETHER IT MORE NEARLY ACCORDS WITH CONGRESS' WISHES
TO ELIMINATE ITS POLICY ALTOGETHER OR EXTEND IT IN ORDER TO RENDER WHAT
CONGRESS PLAINLY DID INTEND, CONSTITUTIONAL.  COMPARE, E.G., YU CONG
ENG V. TRINIDAD, 271 U.S. 500 (1926); UNITED STATES V. REESE, 92 U.S.
214 (1876), WITH SKINNER V. OKLAHOMA, 316 U.S. 535 (1942); NAT. LIFE
INS. CO. V. UNITED STATES, 277 U.S. 508 (1928).  I THEREFORE TURN TO
THE CONSTITUTIONAL QUESTION. 

        III 

THE CONSTITUTIONAL QUESTION THAT MUST BE FACED IN THIS CASE IS
WHETHER A STATUTE THAT DEFERS TO THE INDIVIDUAL'S CONSCIENCE ONLY WHEN
HIS VIEWS EMANATE FROM ADHERENCE TO THEISTIC RELIGIOUS BELIEFS IS
WITHIN THE POWER OF CONGRESS.  CONGRESS, OF COURSE, COULD, ENTIRELY
CONSISTENTLY WITH THE REQUIREMENTS OF THE CONSTITUTION, ELIMINATE ALL
EXEMPTIONS FOR CONSCIENTIOUS OBJECTORS.  SUCH A COURSE WHOULD BE WHOLLY
"NEUTRAL" AND, IN MY VIEW, WOULD NOT OFFEND THE FREE EXERCISE CLAUSE,
FOR REASONS SET FORTH IN MY DISSENTING OPINION IN SHERBERT V. VERNER,
374 U.S. 398, 418 (1963).  SEE JACOBSON V. MASSACHUSETTS, 197 U.S. 11,
29 (1905) (DICTUM); CF. MCGOWAN V. MARYLAND, 366 U.S. 420 (1961); DAVIS
V. BEASON, 133 U.S. 333 (1890); HAMILTON V. BOARD OF REGENTS, 293 U.S.
245, 264-265 (1934); REYNOLDS V. UNITED STATES, 98 U.S. 145 (1879);
KURLAND, OF CHURCH AND STATE AND THE SUPREME COURT, 29 U.CHI.L.REV.  1
(1961).  HOWEVER, HAVING CHOSEN TO EXEMPT, IT CANNOT DRAW THE LINE
BETWEEN THEISTIC OR NONTHEISTIC RELIGIOUS BELIEFS ON THE ONE HAND AND
SECULAR BELIEFS ON THE OTHER.  ANY SUCH DISTINCTIONS ARE NOT, IN MY
VIEW, COMPATIBLE WITH THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT. 
SEE MY SEPARATE OPINION IN WALZ V. TAX COMM'N, 397 U.S. 664, 694
(1970); EPPERSON V. ARKANSAS, 393 U.S.97 (1968); SCHOOL DISTRICT OF
ABINGTON TOWNSHIP V. SCHEMPP, 374 U.S. 203, 305 (1963) (GOLDBERG, J.,
CONCURRING); ENGEL V. VITALE, 370 U.S. 421 (1962); TORCASO V. WATKINS,
367 U.S. 488, 495 (1961); FOWLER V. RHODE ISLAND, 345 U.S. 67 (1953). 
THE IMPLEMENTATION OF THE NEUTRALITY PRINCIPLE OF THESE CASES REQUIRES,
IN MY VIEW, AS I STATED IN WALZ V. TAX COMM'N, SUPRA, "AN EQUAL
PROTECTION MODE OF ANALYSIS.  THE COURT MUST SURVEY METICULOUSLY THE
CIRCUMSTANCES OF GOVERNMENTAL CATEGORIES TO ELIMINATE, AS IT WERE,
RELIGIOUS GERRYMANDERS.  IN ANY PARTICULAR CASE THE CRITICAL QUESTION
IS WHETHER THE SCOPE OF LEGISLATION ENCIRCLES A CLASS SO BROAD THAT IT
CAN BE FAIRLY CONCLUDED THAT (ALL GROUPS THAT) COULD BE THOUGHT TO FALL
WITHIN THE NATURAL PERIMETER (ARE INCLUDED)."  397 U.S.,AT 696. 

THE "RADIUS" OF THIS LEGISLATION IS THE CONSCIENTIOUSNESS WITH WHICH
AN INDIVIDUAL OPPOSES WAR IN GENERAL, YET THE STATUTE, AS I THINK IT
MUST BE CONSTRUED, EXCLUDES FROM ITS "SCOPE" INDIVIDUALS MOTIVATED BY
TEACHINGS OF NONTHEISTIC RELIGIONS, /8/  AND INDIVIDUALS GUIDED BY AN
INNER ETHICAL VOICE THAT BESPEAKS SECULAR AND NOT "RELIGIOUS"
REFLECTION.  IT NOT ONLY ACCORDS A PREFERENCE TO THE "RELIGIOUS" BUT
ALSO DISADVANTAGES ADHERENTS OF RELIGIONS THAT DO NOT WORSHIP A SUPREME
BEING.  THE CONSTITUTIONAL INFIRMITY CANNOT BE CURED, MOREOVER, EVEN BY
AN IMPERMISSIBLE CONSTRUCTION THAT ELIMINATES THE THEISTIC REQUIREMENT
AND SIMPLY DRAWS THE LINE BETWEEN RELIGIOUS AND NONRELIGIOUS.  THIS IN
MY VIEW OFFENDS THE ESTABLISHMENT CLAUSE AND IS THAT KIND OF
CLASSIFICATION THAT THIS COURT HAS CONDEMNED.  SEE MY SEPARATE OPINION
IN WALZ V. TAX COMM'N, SUPRA; SCHOOL DISTRICT OF ABINGTON TOWNSHIP V.
SCHEMPP (GOLDBERG, J., CONCURRING), SUPRA; ENGEL V. VITALE,SUPRA;
TORCASO V. WATKINS, SUPRA. 

IF THE EXEMPTION IS TO BE GIVEN APPLICATION, IT MUST ENCOMPASS THE
CLASS OF INDIVIDUALS IT PURPORTS TO EXCLUDE, THOSE WHOSE BELIEFS
EMANATE FROM A PURELY MORAL, ETHICAL, OR PHILOSOPHICAL SOURCE.  /9/
THE COMMON DENOMINATOR MUST BE THE INTENSITY OF MORAL CONVICTION WITH
WHICH A BELIEF IS HELD /10/  COMMON EXPERIENCE TEACHES THAT AMONG
"RELIGIOUS" INDIVIDUALS SOME ARE WEAK AND OTHERS STRONG ADHERENTS TO
TENETS AND THIS IS NO LESS TRUE OF INDIVIDUALS WHOSE LIVES ARE GUIDED
BY PERSONAL ETHICAL CONSIDERATIONS. 

THE GOVERNMENT ENLISTS THE SELECTIVE DRAFT LAW CASES, 245 U.S. 366
(1918), AS PRECEDENT FOR UPHOLDING THE CONSTITUTIONALITY OF THE
RELIGIOUS CONSCIENTIOUS OBJECTOR PROVISION.  THAT CASE INVOLVED THE
POWER OF CONGRESS TO RAISE ARMIES BY CONSCRIPTION AND ONLY INCIDENTALLY
THE CONSCIENTIOUS OBJECTOR EXEMPTION.  THE LANGUAGE EMPHASIZED BY THE
GOVERNMENT TO THE EFFECT THAT THE EXEMPTION FOR RELIGIOUS OBJECTORS AND
MINISTERS CONSTITUTED NEITHER AN ESTABLISHMENT NOR INTERFERENCE WITH
FREE EXERCISE OF RELIGION CAN ONLY BE CONSIDERED AN AFTERTHOUGHT SINCE
THE CASE DID NOT INVOLVE ANY INDIVIDUALS WHO CLAIMED TO BE NONRELIGIOUS
CONSCIENTIOUS OBJECTORS.  /11/  THIS CONCLUSORY ASSERTION, UNREASONED
AND UNACCOMPANIED BY CITATION, SURELY CANNOT FORECLOSE CONSIDERATION OF
THE QUESTION IN A CASE THAT SQUARELY PRESENTS THE ISSUE. 

OTHER AUTHORITIES ASSEMBLED BY THE GOVERNMENT FAR FROM ADVANCING ITS
CASE, DEMONSTRATE THE UNCONSTITUTIONALITY OF THE DISTINCTION DRAWN IN
SEC. 6(J) BETWEEN RELIGIOUS AND NONRELIGIOUS BELIEFS.  EVERSON V. BOARD
OF EDUCATION, 330 U.S. 1 (1947), THE SUNDAY CLOSING LAW CASES, 366 U.S.
420, 582, 599, AND 617 (1961), AND BOARD OF EDUCATION V. ALLEN, 392
U.S. 236 (1968), ALL SUSTAINED LEGISLATION ON THE PREMISE THAT IT WAS
NEUTRAL IN ITS APPLICATION AND THUS DID NOT CONSTITUTE AN
ESTABLISHMENT, NOTWITHSTANDING THE FACT THAT IT MAY HAVE ASSISTED
RELIGIOUS GROUPS BY GIVING THEM THE SAME BENEFITS ACCORDED TO
NONRELIGIOUS GROUPS.  /12/  TO THE EXTENT THAT ZORACH V. CLAUSON, 343
U.S. 306 (1952), AND SHERBERT V. VERNER, SUPRA, STAND FOR THE
PROPOSITION THAT THE GOVERNMENT MAY (ZORACH), OR MUST (SHERBERT), SHAPE
ITS SECULAR PROGRAMS TO ACCOMMODATE THE BELIEFS AND TENETS OF RELIGIOUS
GROUPS, I THINK THESE CASES UNSOUND.  /13/  SEE GENERALLY KURLAND,
SUPRA.  TO CONFORM WITH THE REQUIREMENTS OF THE FIRST AMENDMENT'S
RELIGIOUS CLAUSES AS REFLECTED IN THE MAINSTREAM OF AMERICAN HISTORY,
LEGISLATION MUST, AT THE VERY LEAST, BE NEUTRAL.  SEE MY SEPARATE
OPINION IN WALZ V. TAX COMM'N, SUPRA.             IV 

WHERE A STATUTE IS DEFECTIVE BECAUSE OF UNDERINCLUSION THERE EXIST
TWO REMEDIAL ALTERNATIVES:  A COURT MAY EITHER DECLARE IT A NULLITY AND
ORDER THAT ITS BENEFITS NOT EXTEND TO THE CLASS THAT THE LEGISLATURE
INTENDED TO BENEFIT, OR IT MAY EXTEND THE COVERAGE OF THE STATUTE TO
INCLUDE THOSE WHO ARE AGGRIEVED BY EXCLUSION.  CF. SKINNER V. OKLAHOMA,
316 U.S. 535 (1942); IOWA-DES MOINES NATIONAL BANK V. BENNETT, 284 U.S.
239 (1931).  /14/ 

THE APPROPRIATE DISPOSITION OF THIS CASE, WHICH IS A PROSECUTION FOR
REFUSING TO SUBMIT TO INDUCTION AND NOT AN ACTION FOR A DECLARATORY
JUDGMENT ON THE CONSTITUTIONALITY OF SEC. 6(J), IS DETERMINED BY THE
FACT THAT AT THE TIME OF WELSH'S INDUCTION NOTICE AND PROSECUTION THE
SELECTIVE SERVICE WAS, AS REQUIRED BY STATUTE, EXEMPTING INDIVIDUALS
WHOSE BELIEFS WERE IDENTICAL IN ALL RESPECTS TO THOSE HELD BY
PETITIONER EXCEPT THAT THEY DERIVED FROM A RELIGIOUS SOURCE.  SINCE
THIS CREATED A RELIGIOUS BENEFIT NOT ACCORDED TO PETITIONER, IT IS
CLEAR TO ME THAT THIS CONVICTION MUST BE REVERSED UNDER THE
ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT UNLESS WELSH IS TO GO
REMEDILESS.  CF. IOWA-DES MOINES NATIONAL BANK V. BENNETT, SUPRA; SMITH
V. CAHOON, 283 U.S. 553 (1931).  /15/ 

THIS RESULT, WHILE TANTAMOUNT TO EXTENDING THE STATUTE, IS NOT ONLY
THE ONE MANDATED BY THE CONSTITUTION IN THIS CASE BUT ALSO THE APPROACH
I WOULD TAKE HAD THIS QUESTION BEEN PRESENTED IN AN ACTION FOR A
DECLARATORY JUDGMENT OR "AN ACTION IN EQUITY WHERE THE ENFORCEMENT OF A
STATUTE AWAITS THE FINAL DETERMINATION OF THE COURT AS TO VALIDITY AND
SCOPE."  SMITH V. CAHOON, 283 U.S.,AT 565.  /16/  WHILE THE NECESSARY
REMEDIAL OPERATION, EXTENSION, IS MORE ANALOGOUS TO A GRAFT THAN
AMPUTATION, I THINK THE BOUNDARIES OF PERMISSIBLE CHOICE MAY PROPERLY
BE CONSIDERED FIXED BY THE LEGISLATIVE PRONOUNCEMENT ON SEVERABILITY. 

INDICATIVE OF THE BREADTH OF THE JUDICIAL MANDATE IN THIS REGARD IS
THE BROAD SEVERABILITY CLAUSE, 65 STAT. 88, WHICH PROVIDES THAT "(IF
ANY PROVISION OF THIS ACT OR THE APPLICATION THEREOF TO ANY PERSON OR
CIRCUMSTANCES IS HELD INVALID, THE VALIDITY OF THE REMAINDER OF THE ACT
AND OF THE APPLICATION OF SUCH PROVISION TO OTHER PERSONS AND
CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY."  WHILE THE ABSENCE OF
SUCH A PROVISION WOULD NOT FORECLOSE THE EXERCISE OF DISCRETION IN
DETERMINING WHETHER A LEGISLATIVE POLICY SHOULD BE REPAIRED OR
ABANDONED, CF. UNITED STATES V. JACKSON, 390 U.S. 570, 585 N. 27
(1968), ITS EXISTENCE "DISCLOSES AN INTENTION TO MAKE THE ACT DIVISIBLE
AND CREATES A PRESUMPTION THAT, ELIMINATING INVALID PARTS, THE
LEGISLATURE WOULD HAVE BEEN SATISFIED WITH WHAT REMAINED . . . ." 
CHAMPLIN RFG.  CO. V. COMMISSION, 286 U.S. 210, 235 (1932).  SEE ALSO
SKINNER V. OKLAHOMA, SUPRA; NAT. LIFE INS. CO. V. UNITED STATES, 277
U.S. 508 (1928).  /17/ 

IN EXERCISING THE BROAD DISCRETION CONFERRED BY A SERVERABILITY
CLAUSE IT IS, OF COURSE, NECESSARY TO MEASURE THE INTENSITY OF
COMMITMENT TO THE RESIDUAL POLICY AND CONSIDER THE DEGREE OF POTENTIAL
DISRUPTION OF THE STATUTORY SCHEME THAT WOULD OCCUR BY EXTENSION AS
OPPOSED BY ABROGATION.  CF. NAT. LIFE INS. CO. V. UNITED STATES, SUPRA
(BRANDEIS, J., DISSENTING); DORCHY V. KANSAS, 264 U.S. 286 (1924). 

THE POLICY OF EXEMPTING RELIGIOUS CONSCIENTIOUS OBJECTORS IS ONE OF
LONGSTANDING TRADITION IN THIS COUNTRY AND ACCORDS RECOGNITION TO WHAT
IS, IN A DIVERSE AND "OPEN" SOCIETY, THE IMPORTANT VALUE OF RECONCILING
INDIVIDUALITY OF BELIEF WITH PRACTICAL EXIGENCIES WHENEVER POSSIBLE. 
SEE GIROUARD V. UNITED STATES, 328 U.S. 61 (1946).  IT DATES BACK TO
COLONIAL TIMES AND HAS BEEN PERPETUATED IN STATE AND FEDERAL
CONSCRIPTION STATUTES.  SEE MR. JUSTICE CARDOZO'S SEPARATE OPINION IN
HAMILTON V. BOARD OF REGENTS, 293 U.S.,AT 267; MACINTOSH V. UNITED
STATES, 42 F.2D 845, 847 (1930).  THAT IT HAS BEEN PHRASED IN RELIGIOUS
TERMS REFLECTS, I ASSUME, THE FACT THAT ETHICS AND MORALS,WHILE THE
CONCERN OF SECULAR PHILOSOPHY,HAVE TRADITIONALLY BEEN MATTERS TAUGHT BY
ORGANIZED RELIGION AND THAT FOR MOST INDIVIDUALS SPIRITUAL AND ETHICAL
NOURISHMENT IS DERIVED FROM THAT SOURCE.  IT FURTHER REFLECTS, I WOULD
SUPPOSE, THE ASSUMPTION THAT BELIEFS EMANATING FROM A RELIGIOUS SOURCE
ARE PROBABLY HELD WITH GREAT INTENSITY. 

WHEN A POLICY HAS ROOTS SO DEEPLY EMBEDDED IN HISTORY, THERE IS A
COMPELLING REASON FOR A COURT TO HAZARD THE NECESSARY STATUTORY REPAIRS
IF THEY CAN BE MADE WITHIN THE ADMINISTRATIVE FRAMEWORK OF THE STATUTE
AND WITHOUT IMPAIRING OTHER LEGISLATIVE GOALS, EVEN THOUGH THEY ENTAIL,
NOT SIMPLY ELIMINATING AN OFFENDING SECTION, BUT RATHER BUILDING UPON
IT.  /18/  THUS I AM PREPARED TO ACCEPT THE PREVAILING OPINION'S
CONSCIENTIOUS OBJECTOR TEST, NOT AS A REFLECTION OF CONGRESSIONAL
STATUTORY INTENT BUT AS PATCHWORK OF JUDICIAL MAKING THAT CURES THE
DEFECT OF UNDER-INCLUSION IN SEC. 6(J) AND CAN BE ADMINISTERED BY LOCAL
BOARDS IN THE USUAL COURSE OF BUSINESS.  /19/  LIKE THE PREVAILING
OPINION, I ALSO CONCLUDE THAT PETITIONER'S BELIEFS ARE HELD WITH THE
REQUIRED INTENSITY AND CONSEQUENTLY VOTE TO REVERSE THE JUDGMENT OF
CONVICTION. 

/1/  FOR A DISCUSSION OF THOSE PRINCIPLES THAT DETERMINE THE
APPROPRIATE SCOPE FOR THE DOCTRINE OF STARE DECISIS, SEE MORAGNE V.
STATES MARINE LINES, ALSO DECIDED TODAY, POST, P. 375; BOYS MARKETS V.
RETAIL CLERKS UNION, ANTE, P. 235; HELVERING V. HALLOCK, 309 U.S. 106
(1940). 

/2/  THE DIFFERENCE IS BETWEEN THE SUBSTITUTION OF JUDICIAL JUDGMENT
FOR A PRINCIPLE THAT IS SET FORTH BY THE CONSTITUTION AND LEGISLATURE
AND THE APPLICATION OF THE LEGISLATIVE PRINCIPLE TO A NEW "FORM" THAT
IS NO DIFFERENT IN SUBSTANCE FROM THE CIRCUMSTANCES THAT EXISTED WHEN
THE PRINCIPLE WAS SET FORTH.  CF. KATZ V. UNITED STATES, 389 U.S. 347
(1967).  AS THE COURT SAID IN WEEMS V. UNITED STATES, "LEGISLATION,
BOTH STATUTORY AND CONSTITUTIONAL, IS ENCATED, . . . FROM AN EXPERIENCE
OF EVILS, . . . ITS GENERAL LANGUAGE SHOULD NOT, THEREFORE, BE
NECESSARILY CONFINED TO THE FORM THAT EVIL HAD THERETOFORE TAKEN . . .
. (A) PRINCIPLE TO BE VITAL MUST BE CAPABLE OF WIDER APPLICATION THAN
THE MISCHIEF WHICH GAVE IT BIRTH."  217 U.S. 349, 373 (1910). 

WHILE IT IS BY NO MEANS ALWAYS SIMPLE TO DISCERN THE DIFFERENCE
BETWEEN THE RESIDUAL PRINCIPLE IN LEGISLATION THAT SHOULD BE GIVEN
EFFECT IN CIRCUMSTANCES NOT COVERED BY THE EXPRESS STATUTORY TERMS AND
THE LIMITATION ON THAT PRINCIPLE INHERENT IN THE SAME WORDS, THE COURT
IN SEEGER AND THE PREVAILING OPINION TODAY READ OUT LANGUAGE THAT, IN
MY VIEW, PLAINLY LIMITS THE PRINCIPLE RATHER THAN ILLUSTRATES THE
POLICY AND CIRCUMSTANCES THAT WERE IN MIND WHEN SEC. 6(J) WAS ENACTED. 

/3/  THE SUBSTITUTION IN SEC. 6(J) OF "SUPREME BEING" INSTEAD OF
"GOD" AS USED IN MACINTOSH DOES NOT, IN MY VIEW, CARRY THE BURDEN,
PLACED ON IT IN THE SEEGER OPINION, OF DEMONSTRATING THAT CONGRESS
"DELIBERATELY BROADENED" CHIEF JUSTICE HUGHES' DEFINITION.  "GOD" AND
"SUPREME BEING" ARE GENERALLY TAKEN AS SYNONYMOUS TERMS MEANING DEITY. 
IT IS COMMON PRACTICE TO USE VARIOUS SYNONYMS FOR THE DEITY.  THE
DECLARATION OF INDEPENDENCE REFERS TO "NATUR'S GOD," "CREATOR,"
"SUPREME JUDGE OF THE WORLD," AND "DIVINE PROVIDENCE."  REFERENCES TO
THE DEITY IN PREAMBLES TO THE STATE CONSTITUTIONS INCLUDE, FOR EXAMPLE,
AND USE INTERCHANGEABLY "GOD," "ALMIGHTY GOD," "SUPREME BEING."  A
STOKES & L. PFEFFER, CHURCH AND STATE IN THE UNITED STATES 561 (1964). 
IN DAVIS V. BEASON, 133 U.S. 333, 342 (1890), THE COURT SPOKE OF MAN'S
RELATIONS TO HIS "CREATOR" AND TO HIS "MAKER"; IN ZORACH V. CLAUSON,
343 U.S. 306, 313 (1952), AND ENGEL V. VITALE, 370 U.S. 421, 424
(1962), TO THE "ALMIGHTY." 

/4/  THE SEEGER OPINIONRELIES ON THE ABSENCE OF ANY ALLUSION TO THE
JUDICIAL CONFLICT TO PARRY THE THRUST OF THE LEGISLATIVE HISTORY AND
ASSIGNS SIGNIFICANCE TO THE COMMITTEE CITATION OF BERMAN AS
MANIFESTATION OF ITS INTENTION TO REENACT SEC. 5(G) OF THE 1940 ACT,
AND ALSO AS AUTHORITY FOR THE EXCLUSION OF THOSE WHOSE BELIEFS ARE
GROUNDED IN SECULAR ETHICS.  THE CITATION TO BERMAN WOULD NOT BE
CONCLUSIVE OF CONGRESSIONAL PURPOSE IF CONGRESS HAD SIMPLY REENACTED
THE 1940 ACT ADDING ONLY THE EXPRESS EXCLUSION IN THE LAST CLAUSE.  BUT
THE REASONING IN SEEGER TOTALLY IGNORES THE FACT THAT CONGRESS WITHOUT
OTHER APPARENT REASON ADDED THE "SUPREME BEING" LANGUAGE OF THE BERMAN
MAJORITY IN THE FACE OF THE BERMAN DISSENT WHICH ESPOUSED JUDGE HAND'S
VIEW IN KAUTEN.  THE ARGUMENT IN SEEGER IS NOT, MOREOVER, STRENGTHENED
BY THE FACT THAT CONGRESS IN DRAFTING THE 1948 SELECTIVE SERVICE LAWS
PLACED GREAT WEIGHT ON THE VIEWS OF THE SELECTIVE SERVICE SYSTEM WHICH,
THE COURT SUGGESTED, DID NOT VIEW BERMAN AND KAUTEN AS BEING IN
CONFLICT.  380 U.S.,AT 179.  THE SELECTIVE SERVICE SYSTEM MONOGRAPH NO.
11, CONSCIENTIOUS OBJECTION (1950) WAS NOT BEFORE CONGRESS WHEN SEC.
6(J) WAS ENACTED AND THE FACT THAT THE SERVICE RELIED ON BOTH KAUTEN
AND BERMAN FOR THE PROPOSITION THAT CONSCIENTIOUS OBJECTION MUST
EMANATE FROM A RELIGIOUS AND NOT A SECULAR SOURCE, DOES NOT MEAN THAT
IT CONSIDERED THE SUPREME BEING DISCUSSION IN BERMAN AS SURPLUSAGE. 

/5/  NEW INTERNATIONAL DICTIONARY, UNABRIDGED (2D ED. 1934). 

/6/  THE PREVAILING OPINION'S PURPORTED RECOGNITION OF THIS
DISTINCTION SLIDES OVER THE "PERSONAL MORAL CODE" EXCEPTION, IN SEC.
6(J).  THUS THAT OPINION IN CONCLUDING THAT SEC. 6(J) DOES NOT EXCLUDE
"THOSE WHO HOLD STRONG BELIEFS ABOUT OUR DOMESTIC AND FOREIGN AFFAIRS
OR EVEN THOSE WHOSE CONSCIENTIOUS OBJECTION TO PARTICIPATION IN ALL
WARS IS FOUNDED TO A SUBSTANTIAL EXTENT UPON CONSIDERATIONS OF PUBLIC
POLICY" BUT EXCLUDES INDIVIDUALS, WHOSE BELIEFS ARE NOT DEEPLY HELD,
AND THOSE WHOSE OBJECTION TO WAR DOES NOT REST UPON "MORAL, ETHICAL, OR
RELIGIOUS PRINCIPLE," BUT INSTEAD RESTS SOLELY UPON CONSIDERATIONS OF
"POLICY, PRAGMATISM, OR EXPEDIENCY," ANTE, AT 342-343, BLENDS MORALS
AND RELIGION, TWO CONCEPTS THAT CONGRESS CHOSE TO KEEP SEPARATE. 

/7/  THE APPARENT PURPOSE OF THE 1940 CHANGE IN LANGUAGE WAS TO
ELIMINATE MEMBERSHIP AS A DECISIVE CRITERION IN RECOGNITION OF THE FACT
THAT MERE FORMAL AFFILIATION IS NO MEASURE OF THE INTENSITY OF BELIEFS,
AND THAT MANY NOMINAL ADHERENTS DO NOT SHARE OR PURSUE THE ETHICS OF
THEIR CHURCH.  THAT THE FOCUS WAS MADE THE CONSCIENTIOUSNESS OF THE
INDIVIDUAL'S OWN BELIEF DOES NOT MEAN THAT CONGRESS WAS INDIFFERENT TO
ITS SOURCE.  WERE THIS THE CASE THERE WOULD HAVE BEEN NO OCCASION TO
ALLUDE TO "RELIGIOUS TRAINING" IN THE 1940 ENACTMENT, AND TO CONTRAST
IT WITH SECULAR ETHICS IN THE 1948 STATUTE.  YET THE PREVAILING OPINION
TODAY HOLDS THAT "BELIEFS THAT ARE PURELY ETHICAL," NO MATTER HOW
ACQUIRED, QUALIFY THE HOLDER FOR SEC. 6(J) STATUS IF THEY ARE HELD WITH
THE REQUISITE INTENSITY. 

HOWEVER, EVEN THE PREVAILING OPINION'S AMBULATORY CONCEPT OF
"RELIGION" DOES NOT SUFFICE TO EMBRACE WELSH, SINCE PETITIONER INSISTED
THAT HIS BELIEFS HAD BEEN FORMED "BY READING IN THE FIELDS OF HISTORY
AND SOCIOLOGY" AND "DENIED THAT HIS OBJECTION TO WAR WAS PREMISED ON
RELIGIOUS BELIEF."  404 F.2D, AT 1082.  THAT OPINION NOT ONLY
ESTABLISHES A DEFINITION OF RELIGION THAT AMOUNTS TO "NEWSPEAK" BUT IT
REFUSES TO LISTEN TO PETITIONER WHO IS SPEAKING THE SAME LANGUAGE. 

/8/  THIS COURT HAS TAKEN NOTICE OF THE FACT THAT RECOGNIZED
"RELIGIONS" EXIST THAT "DO NOT TEACH WHAT WOULD GENERALLY BE CONSIDERED
A BELIEF IN THE EXISTENCE OF GOD," TORCASO V. WATKINS, 367 U.S. 488,
495 N. 11, E.G., "BUDDHISM, TAOISM, ETHICAL CULTURE, SECULAR HUMANISM
AND OTHERS."  IBID.  SEE ALSO WASHINGTON ETHICAL SOCIETY V. DISTRICT OF
COLUMBIA, 101 U.S.APP.D.C. 371, 249 F.2D 127 (1957); 2 ENCYCLOPAEDIA OF
THE SOCIAL SCIENCES 293; J. ARCHER, FAITHS MEN LIVE BY 120-138, 254-313
(2D ED. REVISED BY PURINTON 1958); STOKES & PFEFFER, SUPRA, N. 3, AT
560. 

/9/  IN SHERBERT V. VERNER, 374 U.S. 398 (1963), THE COURT HELD
UNCONSTITUTIONAL OVER MY DISSENT A STATE STATUTE THAT CONDITIONED
ELIGIBILITY FOR UNEMPLOYMENT BENEFITS ON BEING "ABLE TO WORK AND . . .
AVAILABLE FOR WORK" AND FURTHER PROVIDED THAT A CLAIMANT WAS INELIGIBLE
"(IF . . . HE HAS FAILED, WITHOUT GOOD CAUSE . . . TO ACCEPT AVAILABLE
SUITABLE WORK WHEN OFFERED HIM BY THE EMPLOYMENT OFFICE OR THE EMPLOYER
. . . ."  THIS, THE COURT HELD, WAS A VIOLATION OF THE FREE EXERCISE
CLAUSE AS APPLIED TO SEVENTH DAY ADVENTISTS WHOSE RELIGIOUS BACKGROUND
FORCED THEM AS A MATTER OF CONSCIENCE TO DECLINE SATURDAY EMPLOYMENT. 
MY OWN CONCLUSION, TO WHICH I STILL ADHERE, IS THAT THE FREE EXERCISE
CLAUSE DOES NOT REQUIRE A STATE TO CONFORM A NEUTRAL SECULAR PROGRAM TO
THE DICTATES OF RELIGIOUS CONSCIENCE OF ANY GROUP.  I SUGGESTED,
HOWEVER, THAT A STATE COULD CONSTITUTIONALLY CREATE EXCEPTIONS TO ITS
PROGRAM TO ACCOMMODATE RELIGIOUS SCRUPLES.  THAT SUGGESTION MUST,
HOWEVER, BE QUALIFIED BY THE OBSERVATION THAT ANY SUCH EXCEPTION IN
ORDER TO SATISFY THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT, WOULD
HAVE TO BE SUFFICIENTLY BROAD TO BE RELIGIOUSLY NEUTRAL.  SEE MY
SEPARATE OPINION IN WALZ V. TAX COMM'N, SUPRA.  THIS WOULD REQUIRE
CREATING AN EXCEPTION FOR ANYONE WHO, AS A MATTER OF CONSCIENCE, COULD
NOT COMPLY WITH THE STATUTE.  WHETHER, UNDER A STATUTE LIKE THAT
INVOLVED IN SHERBERT, IT WOULD BE POSSIBLE TO DEMONSTRATE A BASIS IN
CONSCIENCE FOR NOT WORKING SATURDAY IS QUITE ANOTHER MATTER. 

/10/  WITHOUT DECIDING WHAT CONSTITUTES A DEFINITION OF "RELIGION"
FOR FIRST AMENDMENT PURPOSES IT SUFFICES TO NOTE THAT IT MEANS, IN MY
VIEW, AT LEAST THE TWO CONCEIVABLE READINGS OF SEC. 6(J) SET FORTH IN
PART II, BUT SOMETHING LESS THAN MERE ADHERENCE TO ETHICAL OR MORAL
BELIEFS IN GENERAL OR A CERTAIN BELIEF SUCH AS CONSCIENTIOUS
OBJECTION.  THUS THE PREVAILING OPINION'S EXPANSIVE READING OF
"RELIGION" IN SEC. 6(J) DOES NOT, IN MY VIEW, CREATE AN ESTABLISHMENT
CLAUSE PROBLEM IN THAT IT EXEMPTS ALL SINCERE OBJECTORS BUT DOES NOT
EXEMPT OTHERS, E.G., THOSE WHO OBJECT TO WAR ON PRAGMATIC GROUNDS AND
CONTEND THAT PRAGMATISM IS THEIR CREED.     /11/  THUS, MR. CHIEF
JUSTICE WHITE SAID: 

"AND WE PASS WITHOUT ANYTHING BUT STATEMENT THE PROPOSITION THAT AN
ESTABLISHMENT OF A RELIGION OR AN INTERFERENCE WITH THE FREE EXERCISE
THEREOF REPUGNANT TO THE FIRST AMENDMENT RESULTED FROM THE EXEMPTION
CLAUSES OF THE ACT . . . BECAUSE WE THINK ITS UNSOUNDNESS IS TOO
APPARENT TO REQUIRE US TO DO MORE."  245 U.S.,AT 389-390. 

/12/  MY BROTHER WHITE IN DISSENT MISINTERPRETS, IN MY VIEW, THE
THRUST OF MR. JUSTICE FRANKFURTER'S LANGUAGE IN THE SUNDAY CLOSING LAW
CASES.  SEE POST, AT 369.  SECTION 6(J) SPEAKS DIRECTLY TO BELIEF
DIVORCED ENTIRELY FROM CONDUCT.  IT EVINCES A JUDGMENT THAT INDIVIDUALS
WHO HOLD THE BELIEFS SET FORTH BY THE STATUTE SHOULD NOT BE REQUIRED TO
BEAR ARMS, AND THE STATUTORY BELIEF THAT QUALIFIES IS ONLY A RELIGIOUS
BELIEF.  UNDER THESE CIRCUMSTANCES I FAIL TO SEE HOW THIS LEGISLATION
HAS "ANY SUBSTANTIAL LEGISLATIVE PURPOSE" APART FROM HONORING THE
CONSCIENCE OF INDIVIDUALS WHO OPPOSE WAR ON ONLY RELIGIOUS GROUNDS.  I
CANNOT, MOREOVER, ACCEPT THE VIEW, IMPLICIT IN THE DISSENT, THAT
CONGRESS HAS ANY ULTIMATE RESPONSIBILITY FOR CONSTRUING THE
CONSTITUTION.  IT, LIKE ALL OTHER BRANCHES OF GOVERNMENT, IS
CONSTRICTED BY THE CONSTITITION AND MUST CONFORM ITS ACTION TO IT.  IT
IS THIS COURT, HOWEVER, AND NOT THE CONGRESS THAT IS ULTIMATELY CHARGED
WITH THE DIFFICULT RESPONSIBILITY OF CONSTRUING THE FIRST AMENDMENT. 
THE COURT HAS HELD THAT UNIVERSAL CONSCRIPTION CREATES NO FREE EXERCISE
PROBLEM, SEE CASES CITED, SUPRA, AT 356, AND CONGRESS CAN
CONSTITUTIONALLY DRAFT INDIVIDUALS NOTWITHSTANDING THEIR RELIGIOUS
BELIEFS.  CONGRESS, WHETHER IN RESPONSE TO POLITICAL CONSIDERATIONS OR
SIMPLY OUT OF SENSITIVITY FOR MEN OF RELIGIOUS CONSCIENCE, CAN OF
COURSE DECLINE TO EXERCISE ITS POWER TO CONSCRIPT TO THE FULLEST
EXTENT, BUT IT CANNOT DO SO WITHOUT EQUAL REGARD FOR MEN OF
NONRELIGIOUS CONSCIENCE.  IT GOES WITHOUT SAYING THAT THE FIRST
AMENDMENT IS PERFORCE A GUARANTEE THAT THE CONSCIENCE OF RELIGION MAY
NOT BE PREFERRED SIMPLY BECAUSE ORGANIZED RELIGIOUS GROUPS IN GENERAL
ARE MORE VISIBLE THAN THE INDIVIDUAL WHO PRACTICES MORALS AND ETHICS ON
HIS OWN.  ANY VIEW OF THE FREE EXERCISE CLAUSE THAT DOES NOT INSIST ON
THIS NEUTRALITY WOULD ENGULF THE ESTABLISHMENT CLAUSE AND RENDER IT
VESTIGIAL. 

/13/  THAT THE "RELEASED-TIME" PROGRAM IN ZORACH DID NOT UTILIZE
CLASSROOM FACILITIES FOR RELIGIOUS INSTRUCTION, UNLIKE MCCOLLUM V.
BOARD OF EDUCATION, 333 U.S. 203 (1948), IS A DISTINCTION FOR ME
WITHOUT ESTABLISHMENT CLAUSE SUBSTANCE.  AT THE VERY LEAST THE
CONSTITUTION REQUIRES THAT THE STATE NOT EXCUSE STUDENTS EARLY FOR THE
PURPOSE OF RECEIVING RELIGIOUS INSTRUCTION WHEN IT DOES NOT OFFER TO
NONRELIGIOUS STUDENTS THE OPPORTUNITY TO USE SCHOOL HOURS FOR SPIRITUAL
OR ETHICAL INSTRUCTION OF A NONRELIGIOUS NATURE.  MOREOVER, WHETHER A
RELEASED-TIME PROGRAM CAST IN TERMS OF IMPROVING "CONSCIENCE" TO THE
EXCLUSION OF ARTISTIC OR CULTURAL PURSUITS, WOULD BE "NEUTRAL" AND
CONSISTENT WITH THE REQUIREMENT OF "VOLUNTARISM," IS BY NO MEANS AN
EASY QUESTION.  SUCH A LIMITED PROGRAM IS QUITE UNLIKE THE BROAD
APPROACH OF THE TAX EXEMPTION STATUTE, SUSTAINED IN WALZ V. TAX COMM'N,
SUPRA, WHICH INCLUDED LITERARY SOCIETIES, PLAYGROUNDS, AND ASSOCIATIONS
"FOR THE MORAL OR MENTAL IMPROVEMENT OF MEN." 

/14/  SEE SKINNER V. OKLAHOMA, WHERE MR. JUSTICE DOUGLAS, IN AN
OPINION HOLDING INFIRM UNDER THE EQUAL PROTECTION CLAUSE A STATE
STATUTE THAT REQUIRED STERILIZATION OF HABITUAL THIEVES WHO PERPETRATED
LARCENIES BUT NOT THOSE WHO ENGAGED IN EMBEZZLEMENT, NOTED THE
ALTERNATIVE COURSES OF EXTENDING THE STATUTE TO COVER THE EXCLUDED
CLASS OR NOT APPLYING IT TO THE WRONGFULLY INCLUDED GROUP.  THE COURT
DECLINED TO SPECULATE WHICH ALTERNATIVE THE STATE WOULD PREFER TO ADOPT
AND SIMPLY REVERSED THE JUDGMENT. 

/15/  IN IOWA-DES MOINES NATIONAL BANK V. BENNETT, MR. JUSTICE
BRANDEIS SPEAKING FOR THE COURT IN A DECISION HOLDING THAT THE STATE
HAD DENIED PETITIONERS EQUAL PROTECTION OF THE LAWS BY TAXING THEM MORE
HEAVILY THAN THEIR COMPETITORS, OBSERVED THAT:  "THE RIGHT INVOKED IS
THAT TO EQUAL TREATMENT; AND SUCH TREATMENT WILL BE ATTAINED IF EITHER
THEIR COMPETITORS' TAXES ARE INCREASED OR THEIR OWN REDUCED."  284
U.S.,AT 247.  BASED ON THE IMPRACTICALITY OF REQUIRING THE AGGRIEVED
TAXPAYER AT THAT STAGE TO "ASSUME THE BURDEN OF SEEKING AN INCREASE OF
THE TAXES WHICH . . . OTHERS SHOULD HAVE PAID," THE COURT HELD THAT
PETITIONER WAS ENTITLED TO RECOVER THE OVERPAYMENT. 

THE ESTABLISHMENT CLAUSE CASE THAT COMES MOST READILY TO MIND AS
INVOLVING "UNDERINCLUSION" IS EPPERSON V. ARKANSAS, 393 U.S. 97
(1968).  THERE THE STATE PROHIBITED THE TEACHING OF EVOLUTIONIST THEORY
BUT "DID NOT SEEK TO EXCISE FROM THE CIRRICULA OF ITS SCHOOLS AND
UNIVERSITIES ALL DISCUSSION OF THE ORIGIN OF MAN."  393 U.S.,AT 109. 
THE COURT HELD THE ARKANSAS STATUTE, WHICH WAS FRAMED AS A PROHIBITION,
UNCONSTITUTIONAL.  SINCE THE STATUTE AUTHORIZED NO POSITIVE ACTION,
THERE WAS NO OCCASION TO CONSIDER THE REMEDIAL PROBLEM.  CF. FOWLER V.
RHODE ISLAND, 345 U.S. 67 (1953).  MOST OF THE OTHER CASES ARISING
UNDER THE ESTABLISHMENT CLAUSE HAVE INVOLVED INSTANCES WHERE THE
CHALLENGED LEGISLATION CONFERRED A BENEFIT ON RELIGIOUS AS WELL AS
SECULAR INSTITUTIONS.  SEE, E.G., WALZ V. TAX COMM'N, SUPRA; EVERSON V.
BOARD OF EDUCATION, SUPRA; BOARD OF EDUCATION V. ALLEN, SUPRA.  THESE
CASES, HAD THEY BEEN DECIDED DIFFERENTLY, WOULD STILL NOT HAVE
PRESENTED THE REMEDIAL PROBLEM THAT ARISES IN THE INSTANT CASE, FOR
THEY WERE CASES OF ALLEGED "OVERINCLUSION."  THE SCHOOL PRAYER CASES,
SCHOOL DISTRICT OF ABINGTON TOWNSHIP V. SCHEMPP, SUPRA; AND ENGEL V.
VITALE, SUPRA; AND THE RELEASED-TIME CASES, ZORACH V. CLAUSON, SUPRA;
MCCOLLUM V. BOARD OF EDUCATION, SUPRA, ALSO FAILED TO RAISE THE
REMEDIAL ISSUE.  IN THE SCHOOL PRAYER SITUATION THE REQUESTED RELIEF
WAS AN INJUNCTION AGAINST THE SAYING OF PRAYERS.  MOREOVER IT IS
DOUBTFUL THAT THERE IS ANY ANALOGOUS SECULAR RITUAL THAT COULD BE
PERFORMED SO AS TO SATISFY THE NEUTRALITY REQUIREMENT OF THE FIRST
AMENDMENT AND EVEN THEN THE PRACTICE OF SAYING PRAYERS IN SCHOOLS WOULD
STILL OFFEND THE PRINCIPLE OF VOLUNTARISM THAT MUST BE SATISFIED IN
FIRST AMENDMENT CASES.  SEE MY SEPARATE OPINION IN WALZ V. TAX COMM'N,
SUPRA.  THE SAME CONSIDERATIONS PREVENTED THE ISSUE FROM ARISING IN THE
ONE RELEASED-TIME PROGRAM CASE THAT HELD THE PRACTICE
UNCONSTITUTIONAL. 

IN MCCOLLUM, WHERE THE COURT HELD UNCONSTITUTIONAL A PROGRAM THAT
PERMITTED "RELIGIOUS TEACHERS, EMPLOYED BY PRIVATE RELIGIOUS GROUPS . .
. TO COME WEEKLY INTO THE SCHOOL BUILDINGS DURING THE REGULAR HOURS SET
APART FOR SECULAR TEACHING, AND THEN AND THERE FOR A PERIOD OF THIRTY
MINUTES SUBSTITUTE THEIR RELIGIOUS TEACHING FOR THE SECULAR EDUCATION
PROVIDED UNDER THE COMPULSORY EDUCATION LAW," 333 U.S.,AT 205, THE
RELIEF REQUESTED WAS AN ORDER TO MANDAMUS THE AUTHORITIES TO
DISCONTINUE THE PROGRAM.  NO QUESTION AROSE AS TO WHETHER THE PROGRAM
MIGHT HAVE BEEN SAVED BY EXTENDING A SIMILAR PRIVILEGE TO OTHER
STUDENTS WHO WISHED EXTRACURRICULAR INSTRUCTION IN, FOR EXAMPLE,
ATHEISTIC OR SECULAR ETHICS AND MORALS.  CF. MY SEPARATE OPINION IN
WALZ V. TAX COMM'N, SUPRA.  MOREOVER AS IN THE PRAYER CASES, SINCE THE
DEFECT IN THE ILLINOIS PROGRAM WAS NOT THE MERE ABSENCE OF NEUTRALITY
BUT ALSO THE ENCROACHMENT ON "VOLUNTARISM," SEE IBID., IT IS DOUBTFUL
WHETHER THERE EXISTED ANY REMEDIAL ALTERNATIVE TO VOIDING THE ENTIRE
PROGRAM.  A FURTHER COMPLICATION WOULD HAVE ARISEN IN THESE CASES BY
VIRTUE OF THE MORE LIMITED DISCRETION THIS COURT ENJOYS TO EXTEND A
POLICY FOR THE STATES EVEN AS A CONSTITUTIONAL REMEDY.  CF. SKINNER V.
OKLAHOMA, SUPRA; MOREY V. DOUD, 354 U.S. 457 (1957); DORCHY V. KANSAS,
264 U.S. 286 (1924). 

/16/ AS LONG AS THE SELECTIVE SERVICE CONTINUES TO GRANT EXEMPTIONS
TO RELIGIOUS CONSCIENTIOUS OBJECTORS, INDIVIDUALS LIKE PETITIONER ARE
NOT REQUIRED TO SUBMIT TO INDUCTION.  THIS IS TANTAMOUNT TO EXTENDING
THE PRESENT STATUTE TO COVER THOSE IN PETITIONER'S POSITION. 
ALTERNATIVELY THE DEFECT OF UNDERINCLUSION THAT RENDERS THIS STATUTE
UNCONSTITUTIONAL COULD BE CURED IN A CIVIL ACTION BY ELIMINATING THE
EXEMPTION ACCORDED TO OBJECTORS WHOSE BELIEFS ARE FOUNDED IN RELIGION. 
THE CHOICE BETWEEN THESE TWO COURSES IS NOT ONE FOR LOCAL DRAFT BOARDS
NOR IS IT ONE THAT SHOULD AWAIT CIVIL LITIGATION WHERE THE QUESTION
COULD MORE APPROPRIATELY BE CONSIDERED.  CONSEQUENTLY I DEEM IT PROPER
TO CONFRONT THE ISSUE HERE, EVEN THOUGH, AS A TECHNICAL MATTER, NO
JUDGMENT COULD ISSUE IN THIS CASE ORDERING THE SELECTIVE SERVICE TO
REFRAIN ENTIRELY FROM GRANTING EXEMPTIONS. 

/17/  IN SKINNER THE COURT IMPLIEDLY RECOGNIZED THE MANDATE OF
FLEXIBILITY TO REPAIR A DEFECTIVE STATUTE-- EVEN BY EXTENSION--
CONFERRED BY A BROAD SEVERABLITY CLAUSE.  AS ALREADY NOTED, THE COURT
THERE DECLINED TO EXERCISE DISCRETION, HOWEVER, SINCE ABSENT A CLEAR
INDICATION OF LEGISLATIVE PREFERENCE IT WAS FOR THE STATE COURTS TO
DETERMINE THE PROPER COURSE. 

WHILE MR. JUSTICE BRANDEIS IN A DISSENTING OPINION IN NAT. LIFE INS.
CO., SUPRA, AT 522, 534-535, EXPRESSED THE VIEW THAT A SEVERABILITY
CLAUSE IN TERMS LIKE THAT BEFORE US NOW IS NOT INTENDED TO AUTHORIZE
AMENDMENT BY EXPANDING THE SCOPE OF LEGISLATION, HIS REMARKS MUST BE
TAKEN IN THE CONTEXT OF A DISSENT TO A COURSE HE DEEMED CONTRARY TO
THAT CONGRESS WOULD HAVE CHOSEN.  THUS, AFTER QUOTING HILL V. WALLACE,
259 U.S. 44, 71 (1922), TO THE EFFECT THAT A SEVERABILITY CLAUSE
"FURNISHES ASSURANCE TO COURTS THAT THEY MAY PROPERLY SUSTAIN SEPARATE
DOUBT AS TO WHETHER THEY WOULD HAVE BEEN ADOPTED, EVEN IF THE
LEGISLATURE HAD BEEN ADVISED OF THE INVALIDITY OF PART (BUT . . . DOES
NOT GIVE . . . POWER TO AMEND THE ACT," JUSTICE BRANDEIS OBSERVED,
THAT:  "EVEN IF SUCH A CLAUSE COULD EVER PERMIT A COURT TO ENLARGE THE
SCOPE OF A DEDUCTION ALLOWED BY A TAXING STATUTE, . . . THE ASSERTED
UNCONSTITUTIONALITY CAN BE CURED AS READILY BY (EXCISION) AS BY
(ENLARGEMENT)" AND THAT THE FORMER WOULD MOST LIKELY HAVE BEEN THE
CONGRESSIONAL PREFERENCE IN THAT PARTICULAR CASE.  CF. IOWA-DES MOINES
NATIONAL BANK V. BENNETT, SUPRA. 

/18/  I REACH THESE CONCLUSIONS NOTWITHSTANDING THE ADMONITION IN
UNITED STATES V. REESE THAT IT "IS NO PART OF (THIS COURT'S) DUTY"
"(TO LIMIT (A) STATUTE IN (SUCH A WAY AS) TO MAKE A NEW LAW, (RATHER
THAN) ENFORCE AN OLD ONE."  92 U.S. 214, 221 (1876).  SEE ALSO YU CONG
ENG V. TRINIDAD, 271 U.S. 500 (1926); MARCHETTI V. UNITED STATES, 390
U.S. 39, 60 (1968).  NEITHER OF THESE CASES INVOLVED STATUTES EVINCING
A CONGRESSIONAL INTENT TO CONFER A BENEFIT ON A PARTICULAR GROUP, THUS
REQUIRING THE FRUSTRATION OF THIRD-PARTY BENEFICIARY LEGISLATION WHEN
THE ACTS WERE HELD INVALID.  MOREOVER, THE SAVING CONSTRUCTION IN
MARCHETTI WOULD HAVE THWARTED, NOT COMPLEMENTED, THE PRIMARY PURPOSE OF
THE STATUTE BY INTRODUCING PRACTICAL DIFFICULTIES INTO THAT ENFORCEMENT
OF STATE GAMBLING LAWS THAT THE STATUTE WAS DESIGNED TO FURTHER. 

/19/  DURING WORLD WAR I WHEN THE EXEMPTION WAS GRANTED TO MEMBERS
OR AFFILIATES OF "WELL-RECOGNIZED RELIGIOUS SECTS)" THE SELECTIVE
SERVICE SYSTEM FOUND IT IMPRACTICABLE TO COMPILE A LIST OF "RECOGNIZED"
SECOND REPORT OF THE PROVOST MARSHAL GENERAL TO THE SECRETARY OF WAR ON
THE OPERATIONS OF THE SELECTIVE SERVICE SYSTEM TO DECEMBER 20, 1918, P.
56.  AS A RESULT, SOME BOARDS TREATED RELIGIOUS AND NONRELIGIOUS
OBJECTORS IN THE SAME MANNER.  REPORT OF THE PROVOST MARSHAL GENERAL TO
THE SECRETARY OF WAR ON THE FIRST DRAFT UNDER THE SELECTIVE-SERVICE
ACT, 1917, P. 59.  FINALLY, BY PRESIDENTIAL REGULATION DATED MARCH 20,
1918, IT WAS ORDERED THAT CONSCIENTIOUS OBJECTOR STATUS BE OPEN TO ALL
CONSCIENTIOUS OBJECTORS WITHOUT REGARD TO ANY RELIGIOUS QUALIFICATION. 
THE EXPERIENCE DURING WORLD WAR II, WHEN DRAFT BOARDS WERE OPERATING
UNDER THE BROAD DEFINITION OF RELIGION IN UNITED STATES V. KAUTEN, 133
F.2D 703 (C.A. 2D CIR. 1943), ALSO DEMONSTRATES THE ADMINISTRATIVE
VIABILITY OF TODAY'S TEST.  NOT ONLY WOULD THE TEST ANNOUNCED TODAY
SEEM MANAGEABLE BUT IT WOULD APPEAR EASIER THAN THE ARCANE INQUIRY
REQUIRED TO DETERMINE WHETHER BELIEFS ARE RELIGIOUS OR SECULAR IN
NATURE. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

WHETHER OR NOT UNITED STATES V. SEEGER, 380 U.S. 163 (1965),
ACCURATELY REFLECTED THE INTENT OF CONGRESS IN PROVIDING DRAFT
EXEMPTIONS FOR RELIGIOUS CONSCIENTIOUS OBJECTORS TO WAR, I CANNOT JOIN
TODAY'S CONSTRUCTION OF SEC. 6(J) EXTENDING DRAFT EXEMPTION TO THOSE
WHO DISCLAIM RELIGIOUS OBJECTIONS TO WAR AND WHOSE VIEWS ABOUT WAR
REPRESENT A PURELY PERSONAL CODE ARISING NOT FROM RELIGIOUS TRAINING
AND BELIEF AS THE STATUTE REQUIRES BUT FROM READINGS IN PHILOSOPHY,
HISTORY, AND SOCIOLOGY.  OUR OBLIGATION IN STATUTORY CONSTRUCTION CASES
IS TO ENFORCE THE WILL OF CONGRESS, NOT OUR OWN; AND AS MR. JUSTICE
HARLAN HAS DEMONSTRATED, CONSTRUING SEC. 6(J) TO INCLUDE WELSH EXEMPTS
FROM THE DRAFT A CLASS OF PERSONS TO WHOM CONGRESS HAS EXPRESSLY DENIED
AN EXEMPTION. 

FOR ME THAT CONCLUSION SHOULD END THIS CASE.  EVEN IF WELSH IS QUITE
RIGHT IN ASSERTING THAT EXEMPTING RELIGIOUS BELIEVERS IS AN
ESTABLISHMENT OF RELIGION FORBIDDEN BY THE FIRST AMENDMENT, HE
NEVERTHELESS REMAINS ONE OF THOSE PERSONS WHOM CONGRESS TOOK PAINS NOT
TO RELIEVE FROM MILITARY DUTY.  WHETHER OR NOT SEC. 6(J) IS
CONSTITUTIONAL, WELSH HAD NO FIRST AMENDMENT EXCUSE FOR REFUSING TO
REPORT FOR INDUCTION.  IF IT IS CONTRARY TO THE EXPRESS WILL OF
CONGRESS TO EXEMPT WELSH, AS I THINK IT IS, THEN THERE IS NO WARRANT
FOR SAVING THE RELIGIOUS EXEMPTION AND THE STATUTE BY REDRAFTING IT IN
THIS COURT TO INCLUDE WELSH AND ALL OTHERS LIKE HIM.     IF THE
CONSTITUTION EXPRESSLY PROVIDED THAT ALIENS SHOULD NOT BE EXEMPT FROM
THE DRAFT, BUT CONGRESS PURPORTED TO EXEMPT THEM AND NO OTHERS, WELSH,
A CITIZEN, COULD HARDLY QUALIFY FOR EXEMPTION BY DEMONSTRATING THAT
EXEMPTING ALIENS IS UNCONSTITUTIONAL.  BY THE SAME TOKEN, IF THE
CONSTITUTION PROHIBITS CONGRESS FROM EXEMPTING RELIGIOUS BELIEVERS, BUT
CONGRESS EXEMPTS THEM ANYWAY, WHY SHOULD THE INVALIDITY OF THE
EXEMPTION CREATE A DRAFT IMMUNITY FOR WELSH?  SURELY NOT JUST BECAUSE
HE WOULD OTHERWISE GO WITHOUT A REMEDY ALONG WITH ALL THOSE OTHERS NOT
QUALIFYING FOR EXEMPTION UNDER THE STATUTE.  AND NOT AS A REWARD FOR
SEEKING A DECLARATION OF THE INVALIDITY OF SEC. 6(J); FOR AS LONG AS
WELSH IS AMONG THOSE FROM WHOM CONGRESS EXPRESSLY WITHHELD THE
EXEMPTION, HE HAS NO STANDING TO RAISE THE ESTABLISHMENT ISSUE EVEN IF
SEC. 6(J) WOULD PRESENT NO FIRST AMENDMENT PROBLEMS IF IT HAD INCLUDED
WELSH AND OTHERS LIKE HIM.  "(ONE TO WHOM APPLICATION OF A STATUTE IS
CONSTITUTIONAL WILL NOT BE HEARD TO ATTACK THE STATUTE ON THE GROUND
THAT IMPLIEDLY IT MIGHT ALSO BE TAKEN AS APPLYING TO OTHER PERSONS OR
OTHER SITUATIONS IN WHICH ITS APPLICATION MIGHT BE UNCONSTITUTIONAL." 
UNITED STATES V. RAINES, 362 U.S. 17, 21 (1960).  NOTHING IN THE FIRST
AMENDMENT PROHIBITS DRAFTING WELSH AND OTHER NONRELIGIOUS OBJECTORS TO
WAR.  SAVING SEC. 6(J) BY EXTENDING IT TO INCLUDE WELSH CANNOT BE DONE
IN THE NAME OF A PRESUMED CONGRESSIONAL WILL BUT ONLY BY THE COURT'S
TAKING UPON ITSELF THE POWER TO MAKE DRAFT-EXEMPTION POLICY. 

IF I AM WRONG IN THINKING THAT WELSH CANNOT BENEFIT FROM
INVALIDATION OF SEC. 6(J) ON ESTABLISHMENT CLAUSE GROUNDS, I WOULD
NEVERTHELESS AFFIRM HIS CONVICTION; FOR I CANNOT HOLD THAT CONGRESS
VIOLATED THE CLAUSE IN EXEMPTING FROM THE DRAFT ALL THOSE WHO OPPOSE
WAR BY REASON OF RELIGIOUS TRAINING AND BELIEF.  IN EXEMPTING RELIGIOUS
CONSCIENTIOUS OBJECTORS, CONGRESS WAS MAKING ONE OF TWO JUDGMENTS,
PERHAPS BOTH.  FIRST, SEC. 6(J) MAY REPRESENT A PURELY PRACTICAL
JUDGMENT THAT RELIGIOUS OBJECTORS, HOWEVER ADMIRABLE, WOULD BE OF NO
MORE USE IN COMBAT THAN MANY OTHERS UNQUALIFIED FOR MILITARY SERVICE. 
EXEMPTION WAS NOT EXTENDED TO THEM TO FURTHER RELIGIOUS BELIEF OR
PRACTICE BUT TO LIMIT MILITARY SERVICE TO THOSE WHO WERE PREPARED TO
UNDERTAKE THE FIGHTING THAT THE ARMED SERVICES HAVE TO DO. ON THIS
BASIS, THE EXEMPTION HAS NEITHER THE PRIMARY PURPOSE NOR THE EFFECT OF
FURTHERING RELIGION.  AS MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE
HARLAN, SAID IN A SEPARATE OPINION IN THE SUNDAY CLOSING LAW CASES, 366
U.S. 420, 468 (1961), AN ESTABLISHMENT CONTENTION "CAN PREVAIL ONLY IF
THE ABSENCE OF ANY SUBSTANTIAL LEGISLATIVE PURPOSE OTHER THAN A
RELIGIOUS ONE IS MADE TO APPEAR.  SEE SELECTIVE DRAFT LAW CASES, 245
U.S. 366." 

SECOND, CONGRESS MAY HAVE GRANTED THE EXEMPTION BECAUSE OTHERWISE
RELIGIOUS OBJECTORS WOULD BE FORCED INTO CONDUCT THAT THEIR RELIGIONS
FORBID AND BECAUSE IN THE VIEW OF CONGRESS TO DENY THE EXEMPTION WOULD
VIOLATE THE FREE EXERCISE CLAUSE OR AT LEAST RAISE GRAVE PROBLEMS IN
THIS RESPECT.  TRUE, THIS COURT HAS MORE THAN ONCE STATED ITS
UNWILLINGNESS TO CONSTRUE THE FIRST AMENDMENT, STANDING ALONE, AS
REQUIRING DRAFT EXEMPTIONS FOR RELIGIOUS BELIEVERS.  HAMILTON V. BOARD
OF REGENTS, 293 U.S. 245, 263-264 (1934); UNITED STATES V. MACINTOSH,
283 U.S. 605, 623-624 (1931).  BUT THIS COURT IS NOT ALONE IN BEING
OBLIGED TO CONSTRUE THE CONSTITUTION IN THE COURSE OF ITS WORK; NOR
DOES IT EVEN APPROACH HAVING A MONOPOLY ON THE WISDOM AND INSIGHT
APPROPRIATE TO THE TASK.  LEGISLATIVE EXEMPTIONS FOR THOSE WITH
RELIGIOUS CONVICTIONS AGAINST WAR DATE FROM COLONIAL DAYS.  AS CHIEF
JUSTICE HUGHES EXPLAINED IN HIS DISSENT IN UNITED STATES V. MACINTOSH,
SUPRA, AT 633, THE IMPORTANCE OF GIVING IMMUNITY TO THOSE HAVING
CONSCIENTIOUS SCRUPLES AGAINST BEARING ARMS HAS CONSISTENTLY BEEN
EMPHASIZED IN DEBATES IN CONGRESS AND SUCH DRAFT EXEMPTIONS ARE
"'INDICATIVE OF THE ACTUAL OPERATION OF THE PRINCIPLES OF THE
CONSTITUTION.'"  HOWEVER THIS COURT MIGHT CONSTRUE THE FIRST AMENDMENT,
CONGRESS HAS REGULARLY STEERED CLEAR OF FREE EXERCISE PROBLEMS BY
GRANTING EXEMPTIONS TO THOSE WHO CONSCIENTIOUSLY OPPOSE WAR ON
RELIGIOUS GROUNDS. 

IF THERE WERE NO STATUTORY EXEMPTION FOR RELIGIOUS OBJECTORS TO WAR
AND FAILURE TO PROVIDE IT WAS HELD BY THIS COURT TO IMPAIR THE FREE
EXERCISE OF RELIGION CONTRARY TO THE FIRST AMENDMENT, AN EXEMPTION
REFLECTING THIS CONSTITUTIONAL COMMAND WOULD BE NO MORE AN
ESTABLISHMENT OF RELIGION THAN THE EXEMPTION REQUIRED FOR SABBATARIANS
IN SHERBERT V. VERNER, 374 U.S. 398 (1963), OR THE EXEMPTION FROM THE
FLAT TAX ON BOOK SELLERS HELD REQUIRED FOR EVANGELISTS, FOLLETT V.
MCCORMICK, 321 U.S. 573 (1944).  SURELY A STATUTORY EXEMPTION FOR
RELIGIONISTS REQUIRED BY THE FREE EXERCISE CLAUSE IS NOT AN INVALID
ESTABLISHMENT BECAUSE IT FAILS TO INCLUDE NONRELIGIOUS BELIEVERS AS
WELL; NOR WOULD IT BE ANY LESS AN ESTABLISHMENT IF CAMOUFLAGED BY
GRANTING ADDITIONAL EXEMPTIONS FOR NONRELIGIOUS, BUT "MORAL" OBJECTORS
TO WAR. 

ON THE ASSUMPTION, HOWEVER, THAT THE FREE EXERCISE CLAUSE OF THE
FIRST AMENDMENT DOES NOT BY ITS OWN FORCE REQUIRE EXEMPTING DEVOUR
OBJECTORS FROM MILITARY SERVICE, IT DOES NOT FOLLOW THAT SEC. 6(J) IS A
LAW RESPECTING AN ESTABLISHMENT OF RELIGION WITHIN THE MEANING OF THE
FIRST AMENDMENT.  IT IS VERY LIKELY THAT SEC. 6(J) IS A RECOGNITION BY
CONGRESS OF FREE EXERCISE VALUES AND ITS VIEW OF DESIRABLE OR REQUIRED
POLICY IN IMPLEMENTING THE FREE EXERCISE CLAUSE.  THAT JUDGMENT IS
ENTITLED TO RESPECT.  CONGRESS HAS THE POWER "TO RAISE AND SUPPORT
ARMIES" AND "TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR
CARRYING INTO EXECUTION" THAT POWER.  ART. I, SEC. 8.  THE POWER TO
RAISE ARMIES MUST BE EXERCISED CONSISTENTLY WITH THE FIRST AMENDMENT
WHICH, AMONG OTHER THINGS, FORBIDS LAWS PROHIBITING THE FREE EXERCISE
OF RELIGION.  IT IS SURELY ESSENTIAL THEREFORE-- SURELY "NECESSARY AND
PROPER"-- IN ENACTING LAWS FOR THE RAISING OF ARMIES TO TAKE ACCOUNT OF
THE FIRST AMENDMENT AND TO AVOID POSSIBLE VIOLATIONS OF THE FREE
EXERCISE CLAUSE.  IF THIS WAS THE COURSE CONGRESS TOOK, THEN JUST AS IN
KATZENBACH V. MORGAN, 384 U.S. 641 (1966), WHERE WE ACCEPTED THE
JUDGMENT OF CONGRESS AS TO WHAT LEGISLATION WAS APPROPRIATE TO ENFORCE
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, HERE WE SHOULD
RESPECT CONGRESSIONAL JUDGMENT ACCOMMODATING THE FREE EXERCISE CLAUSE
AND THE POWER TO RAISE ARMIES.  THIS INVOLVES NO SURRENDER OF THE
COURT'S FUNCTION AS ULTIMATE ARBITER IN DISPUTES OVER INTERPRETATION OF
THE CONSTITUTION.  BUT IT WAS ENOUGH IN KATZENBACH "TO PERCEIVE A BASIS
UPON WHICH THE CONGRESS MIGHT RESOLVE THE CONFLICT AS IT DID," 384
U.S.,AT 653, AND PLAINLY IN THE CASE BEFORE US THERE IS AN ARGUABLE
BASIS FOR SEC. 6(J) IN THE FREE EXERCISE CLAUSE SINCE, WITHOUT THE
EXEMPTION, THE LAW WOULD COMPEL SOME MEMBERS OF THE PUBLIC TO ENGAGE IN
COMBAT OPERATIONS CONTRARY TO THEIR RELIGIOUS CONVICTIONS.  INDEED, ONE
FEDERAL COURT HAS RECENTLY HELD THAT TO DRAFT A MAN FOR COMBAT SERVICE
CONTRARY TO HIS CONSCIENTIOUS BELIEFS WOULD VIOLATE THE FIRST
AMENDMENT.  UNITED STATES V. SISSON, 297 F.SUPP.  902 (1969).  THERE
BEING SUBSTANTIAL ROOTS IN THE FREE EXERCISE CLAUSE FOR SEC. 6(J) I
WOULD NOT FRUSTRATE CONGRESSIONAL WILL BY CONSTRUING THE ESTABLISHMENT
CLAUSE TO CONDITION THE EXEMPTION FOR RELIGIONISTS UPON EXTENDING THE
EXEMPTION ALSO TO THOSE WHO OBJECT TO WAR ON NONRELIGIOUS GROUNDS. 

WE HAVE SAID THAT NEITHER SUPPORT NOR HOSTILITY,BUT NEUTRALITY, IS
THE GOAL OF THE RELIGION CLAUSES OF THE FIRST AMENDMENT.  "NEUTRALITY,"
HOWEVER, IS NOT SELF-DEFINING.  IF IT IS "FAVORITISM" AND NOT
"NEUTRALITY" TO EXEMPT RELIGIOUS BELIEVERS FROM THE DRAFT, IS IT
"NEUTRALITY" AND NOT "INHIBITION" OF RELIGION TO COMPEL RELIGIOUS
BELIEVERS TO FIGHT WHEN THEY HAVE SPECIAL REASONS FOR NOT DOING SO,
REASONS TO WHICH THE CONSTITUTION GIVES PARTICULAR RECOGNITION?  IT
CANNOT BE IGNORED THAT THE FIRST AMENDMENT ITSELF CONTAINS A RELIGIOUS
CLASSIFICATION.  THE AMENDMENT PROTECTS BELIEF AND SPEECH, BUT AS A
GENERAL PROPOSITION, THE FREE SPEECH PROVISIONS STOP SHORT OF
IMMUNIZING CONDUCT FROM OFFICIAL REGULATION.  THE FREE EXERCISE CLAUSE,
HOWEVER, HAS A DEEPER CUT: IT PROTECTS CONDUCT AS WELL AS RELIGIOUS
BELIEF AND SPEECH.  "(IT SAFEGUARDS THE FREE EXERCISE OF THE CHOSEN
FORM OF RELIGION.  THUS THE AMENDMENT EMBRACES TWO CONCEPTS,-- FREEDOM
TO BELIEVE AND FREEDOM TO ACT.  THE FIRST IS ABSOLUTE BUT, IN THE
NATURE OF THINGS, THE SECOND CANNOT BE."  CANTWELL V. CONNECTICUT, 310
U.S. 296, 303-304 (1940).  ALTHOUGH SOCIALLY HARMFUL ACTS MAY AS A RULE
BE BANNED DESPITE THE FREE EXERCISE CLAUSE EVEN WHERE RELIGIOUSLY
MOTIVATED, THERE IS AN AREA OF CONDUCT THAT CANNOT BE FORBIDDEN TO
RELIGIOUS PRACTITIONERS BUT THAT MAY BE FORBIDDEN TO OTHERS.  SEE
UNITED STATES V. BALLARD, 322 U.S. 78 (1944; FOLLETT V. MCCORMICK, 321
U.S. 573 (1944).  WE SHOULD THUS NOT LABOR TO FIND A VIOLATION OF THE
ESTABLISHMENT CLAUSE WHEN FREE EXERCISE VALUES PROMPT CONGRESS TO
RELIEVE RELIGIOUS BELIEVERS FROM THE BURDENS OF THE LAW AT LEAST IN
THOSE INSTANCES WHERE THE LAW IS NOT MERELY PROHIBITORY BUT COMMANDS
THE PERFORMANCE OF MILITARY DUTIES THAT ARE FORBIDDEN BY A MAN'S
RELIGION. 

IN BRAUNFELD V. BROWN, 366 U.S. 599 (1961), AND GALLAGHER V. CROWN
KOSHER MARKET, 366 U.S. 617 (1961), A MAJORITY OF THE COURT REJECTED
CLAIMS THAT SUNDAY CLOSING LAWS PLACED UNACCEPTABLE BURDENS ON
SABBATARIANS' RELIGIOUS OBSERVANCES.  IT WAS NOT SUGGESTED, HOWEVER,
THAT THE SUNDAY CLOSING LAWS IN 21 STATES EXEMPTING SABBATARIANS AND
OTHERS VIOLATED THE ESTABLISHMENT CLAUSE BECAUSE NO PROVISION WAS MADE
FOR OTHERS WHO CLAIMED NONRELIGIOUS REASONS FOR NOT WORKING ON SOME
PARTICULAR DAY OF THE WEEK.  NOR WAS IT INTIMATED IN ZORACH V. CLAUSON,
343 U.S. 306 (1952), THAT THE NO-ESTABLISHMENT HOLDING MIGHT BE INFIRM
BECAUSE ONLY THOSE PURSUING RELIGIOUS STUDIES FOR DESIGNATED PERIODS
WERE RELEASED FROM THE PUBLIC SCHOOL ROUTINE; NEITHER WAS IT HINTED
THAT A PUBLIC SCHOOL'S REFUSAL TO INSTITUTE A RELEASED-TIME PROGRAM
WOULD VIOLATE THE FREE EXERCISE CLAUSE.  THE COURT IN SHERBERT V.
VERNER, SUPRA, CONSTRUED THE FREE EXERCISE CLAUSE TO REQUIRE SPECIAL
TREATMENT FOR SABBATARIANS UNDER THE STATE'S UNEMPLOYMENT COMPENSATION
LAW.  BUT THE STATE COULD DEAL SPECIALLY WITH SABBATARIANS WHETHER THE
FREE EXERCISE CLAUSE REQUIRED IT OR NOT, FOR AS MR. JUSTICE HARLAN THEN
SAID-- AND I AGREED WITH HIM-- THE ESTABLISHMENT CLAUSE WOULD NOT
FORBID AN EXEMPTION FOR SABBATARIANS WHO OTHERWISE COULD NOT QUALIFY
FOR UNEMPLOYMENT BENEFITS. 

THE ESTABLISHMENT CLAUSE AS CONSTRUED BY THIS COURT UNQUESTIONABLY
HAS INDEPENDENT SIGNIFICANCE; ITS FUNCTION IS NOT WHOLLY AUXILIARY TO
THE FREE EXERCISE CLAUSE.  IT BANS SOME INVOLVEMENTS OF THE STATE WITH
RELIGION THAT OTHERWISE MIGHT BE CONSISTENT WITH THE FREE EXERCISE
CLAUSE.  BUT WHEN IN THE RATIONALLY BASED JUDGMENT OF CONGRESS FREE
EXERCISE OF RELIGION CALLS FOR SHIELDING RELIGIOUS OBJECTORS FROM
COMPULSORY COMBAT DUTY, I AM RELUCTANT TO FRUSTRATE THE LEGISLATIVE
WILL BY STRIKING DOWN THE STATUTORY EXEMPTION BECAUSE IT DOES NOT ALSO
REACH THOSE TO WHOM THE FREE EXERCISE CLAUSE OFFERS NO PROTECTION
WHATSOEVER. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

J. B. TIETZ ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON, FRANCIS
X. BEYTAGH, JR., AND BEATRICE ROSENBERG. 
..END :
























MORAGNE V. STATES MARINE LINES, 398 U.S. 375 


       MORAGNE V. STATES MARINE LINES, INC., ET AL.

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 175.  ARGUED MARCH 4, 1970-- DECIDED JUNE 15, 1970. 


PETITIONER IS NOT FORECLOSED FROM BRINGING THIS ACTION UNDER FEDERAL
MARITIME LAW, BASED ON UNSEAWORTHINESS, FOR THE WRONGFUL DEATH WITHIN
STATE TERRITORIAL WATERS OF HER HUSBAND, A LONGSHOREMAN, AS A WRONGFUL
DEATH ACTION UNDER SUCH LAW IS MAINTAINABLE FOR BREACH OF MARITIME
DUTIES.  THE HARRISBURG, 119 U.S. 199, OVERRULED.  PP. 379-409. 

409 F.2D 32, REVERSED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THIS CASE HERE TO CONSIDER WHETHER THE HARRISBURG, 119 U.S.
199, IN WHICH THIS COURT HELD IN 1886 THAT MARITIME LAW DOES NOT AFFORD
A CAUSE OF ACTION FOR WRONGFUL DEATH, SHOULD ANY LONGER BE REGARDED AS
ACCEPTABLE LAW. 

THE COMPLAINT SETS FORTH THAT EDWARD MORAGNE, A LONGSHOREMAN, WAS
KILLED WHILE WORKING ABOARD THE VESSEL PALMETTO STATE IN NAVIGABLE
WATERS WITHIN THE STATE OF FLORIDA.  PETITIONER, AS HIS WIDOW AND
REPRESENTATIVE OF HIS ESTATE, BROUGHT THIS SUIT IN A STATE COURT
AGAINST RESPONDENT STATES MARINE LINES, INC., THE OWNER OF THE VESSEL,
TO RECOVER DAMAGES FOR WRONGFUL DEATH AND FOR THE PAIN AND SUFFERING
EXPERIENCED BY THE DECEDENT PRIOR TO HIS DEATH.  THE CLAIMS WERE
PREDICATED UPON BOTH NEGLIGENCE AND THE UNSEAWORTHINESS OF THE VESSEL. 

STATES MARINE REMOVED THE CASE TO THE FEDERAL DISTRICT COURT FOR THE
MIDDLE DISTRICT OF FLORIDA ON THE BASIS OF DIVERSITY OF CITIZENSHIP,
SEE 28 U.S.C. 1332, 1441, AND THERE FILED A THIRD-PARTY COMPLAINT
AGAINST RESPONDENT GULF FLORIDA TERMINAL COMPANY, THE DECEDENT'S
EMPLOYER, ASSERTING THAT GULF HAD CONTRACTED TO PERFORM STEVEDORING
SERVICES ON THE VESSEL IN A WORKMANLIKE MANNER AND THAT ANY NEGLIGENCE
OR UNSEAWORTHINESS CAUSING THE ACCIDENT RESULTED FROM GULF'S
OPERATIONS. 

BOTH STATES MARINE AND GULF SOUGHT DISMISSAL OF THE PORTION OF
PETITIONER'S COMPLAINT THAT REQUESTED DAMAGES FOR WRONGFUL DEATH ON THE
BASIS OF UNSEAWORTHINESS.  THEY CONTENDED THAT MARITIME LAW PROVIDED NO
RECOVERY FOR WRONGFUL DEATH WITHIN A STATE'S TERRITORIAL WATERS, AND
THAT THE STATUTORY RIGHT OF ACTION FOR DEATH UNDER FLORIDA LAW, FLA.
STAT. SEC. 768.01 (1965), DID NOT ENCOMPASS UNSEAWORTHINESS AS A BASIS
OF LIABILITY.  THE DISTRICT COURT DISMISSED THE CHALLENGED PORTION OF
THE COMPLAINT ON THIS GROUND, CITING THIS COURT'S DECISION IN THE
TUNGUS V. SKOVGAARD, 358 U.S. 588 (1959), AND CASES CONSTRUING THE
STATE STATUTE, BUT MADE THE CERTIFICATION NECESSARY UNDER 28 U.S.C.
1292(B) TO ALLOW PETITIONER AN INTERLOCUTORY APPEAL TO THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

THE COURT OF APPEALS TOOK ADVANTAGE OF A PROCEDURE FURNISHED BY
STATE LAW, FLA. STAT. SEC. 25.031 (1965), TO CERTIFY TO THE FLORIDA
SUPREME COURT THE QUESTION WHETHER THE STATE WRONGFUL-DEATH STATUTE
ALLOWED RECOVERY FOR UNSEAWORTHINESS AS THAT CONCEPT IS UNDERSTOOD IN
MARITIME LAW.  AFTER REVIEWING THE HISTORY OF THE FLORIDA ACT, THE
STATE COURT ANSWERED THIS QUESTION IN THE NEGATIVE.  211 SO.2D 161
(1968).  ON RETURN OF THE CASE TO THE COURT OF APPEALS, THAT COURT
AFFIRMED THE DISTRICT COURT'S ORDER, REJECTING PETITIONER'S ARGUMENT
THAT SHE WAS ENTITLED TO REVERSAL UNDER FEDERAL MARITIME LAW WITHOUT
REGARD TO THE SCOPE OF THE STATE STATUTE.  409 F.2D 32 (1969).  THE
COURT STATED THAT ITS DISPOSITION WAS COMPELLED BY OUR DECISION IN THE
TUNGUS.  WE GRANTED CERTIORARI, 396 U.S. 900 (1969), AND INVITED THE
UNITED STATES TO PARTICIPATE AS AMICUS CURIAE, ID., AT 952, TO
RECONSIDER THE IMPORTANT QUESTION OF REMEDIES UNDER FEDERAL MARITIME
LAW FOR TORTIOUS DEATHS ON STATE TERRITORIAL WATERS. 

IN THE TUNGUS THIS COURT DIVIDED ON THE CONSEQUENCES THAT SHOULD
FLOW FROM THE RULE OF MARITIME LAW THAT "IN THE ABSENCE OF A STATUTE
THERE IS NO ACTION FOR WRONGFUL DEATH," FIRST ANNOUNCED IN THE
HARRISBURG.  ALL MEMBERS OF THE COURT AGREED THAT WHERE A DEATH ON
STATE TERRITORIAL WATERS IS LEFT REMEDILESS BY THE GENERAL MARITIME LAW
AND BY FEDERAL STATUTES, A REMEDY MAY BE PROVIDED UNDER ANY APPLICABLE
STATE LAW GIVING A RIGHT OF ACTION FOR DEATH BY WRONGFUL ACT.  HOWEVER,
FOUR JUSTICES DISSENTED FROM THE COURT'S FURTHER HOLDING THAT "WHEN
ADMIRALITY ADOPTS A STATE'S RIGHT OF ACTION FOR WRONGFUL DEATH, IT MUST
ENFORCE THE RIGHT AS AN INTEGRATED WHOLE, WITH WHATEVER CONDITIONS AND
LIMITATIONS THE CREATING STATE HAS ATTACHED."  358 U.S.,AT 592.  THE
DISSENTERS WOULD HAVE HELD THAT FEDERAL MARITIME LAW COULD UTILIZE THE
STATE LAW TO "SUPPLY A REMEDY" FOR BREACHES OF FEDERALLY IMPOSED
DUTIES, WITHOUT REGARD TO ANY SUBSTANTIVE LIMITATIONS CONTAINED IN THE
STATE LAW.  ID., AT 597, 599. 

THE EXTENT OF THE ROLE TO BE PLAYED BY STATE LAW UNDER THE TUNGUS
HAS BEEN THE SUBJECT OF SUBSTANTIAL DEBATE AND UNCERTAINTY IN THIS
COURT, SEE HESS V. UNITED STATES, 361 U.S. 314 (1960); GOETT V. UNION
CARBIDE CORP., 361 U.S. 340 (1960),WITH OPINIONS ON BOTH SIDES OF THE
QUESTION ACKNOWLEDGING THE SHORTCOMINGS IN THE PRESENT LAW.  SEE 361
U.S.,AT 314-315, 338-339.  ON FRESH CONSIDERATION OF THE ENTIRE
SUBJECT, WE HAVE CONCLUDED THAT THE PRIMARY SOURCE OF THE CONFUSION IS
NOT TO BE FOUND IN THE TUNGUS, BUT IN THE HARRISBURG, AND THAT THE
LATTER DECISION, SOMEWHAT DUBIOUS EVEN WHEN RENDERED, IS SUCH AN
UNJUSTIFIABLE ANOMALY IN THE PRESENT MARITIME LAW THAT IT SHOULD NO
LONGER BE FOLLOWED.  WE THEREFORE REVERSE THE JUDGMENT OF THE COURT OF
APPEALS.  /1/

        I 

THE COURT'S OPINION IN THE HARRISBURG ACKNOWLEDGED THAT THE RESULT
REACHED HAD LITTLE JUSTIFICATION EXCEPT IN PRIMITIVE ENGLISH LEGAL
HISTORY-- A HISTORY FAR REMOVED FROM THE AMERICAN LAW OF REMEDIES FOR
MARITIME DEATHS.  THAT CASE, LIKE THIS, WAS A SUIT ON BEHALF OF THE
FAMILY OF A MARITIME WORKER FOR HIS DEATH ON THE NAVIGABLE WATERS OF A
STATE.  FOLLOWING SEVERAL PRECEDENTS IN THE LOWER FEDERAL COURTS, THE
TRIAL COURT AWARDED DAMAGES AGAINST THE SHIP CAUSING THE DEATH, AND THE
CIRCUIT COURT AFFIRMED, RULING THAT DEATH BY MARITIME TORT "MAY BE
COMPLAINED OF AS AN INJURY, AND THE WRONG REDRESSED UNDER THE GENERAL
MARITIME LAW."  15 F. 610, 614 (1883).  THIS COURT, IN REVERSING,
RELIED PRIMARILY ON ITS THEN-RECENT DECISION IN INSURANCE CO. V. BRAME,
95 U.S. 754 (1878), IN WHICH IT HAD HELD THAT IN AMERICAN COMMON LAW,
AS IN ENGLISH, "NO CIVIL ACTION LIES FOR AN INJURY WHICH RESULTS IN . .
. DEATH."  ID., AT 756.  /2/  IN THE HARRISBURG, AS IN BRAME, THE COURT
DID NOT EXAMINE THE JUSTIFICATIONS FOR THIS COMMON-LAW RULE; RATHER, IT
SIMPLY NOTED THAT "WE KNOW OF NO COUNTRY THAT HAS ADOPTED A DIFFERENT
RULE ON THIS SUBJECT FOR THE SEA FROM THAT WHICH IT MAINTAINS ON THE
LAND," AND CONCLUDED, DESPITE CONTRARY DECISIONS OF THE LOWER FEDERAL
COURTS BOTH BEFORE AND AFTER BRAME, THAT THE RULE OF BRAME SHOULD APPLY
EQUALLY TO MARITIME DEATHS.  119 U.S.,AT 213.  /3/ 

OUR ANALYSIS OF THE HISTORY OF THE COMMON-LAW RULE INDICATES THAT IT
WAS BASED ON A PARTICULAR SET OF FACTORS THAT HAD, WHEN THE HARRISBURG
WAS DECIDED, LONG SINCE BEEN THROWN INTO DISCARD EVEN IN ENGLAND, AND
THAT HAD NEVER EXISTED IN THIS COUNTRY AT ALL.  FURTHER, REGARDLESS OF
THE VIABILITY OF THE RULE IN 1886 AS APPLIED TO AMERICAN LAND-BASED
AFFAIRS, IT IS DIFFICULT TO DISCERN AN ADEQUATE REASON FOR ITS
EXTENSION TO ADMIRALITY, A SYSTEM OF LAW THEN ALREADY DIFFERENTIATED IN
MANY RESPECTS FROM THE COMMON LAW. 

ONE WOULD EXPECT, UPON AN INQUIRY INTO THE SOURCES OF THE COMMON-LAW
RULE, TO FIND A CLEAR AND COMPELLING JUSTIFICATION FOR WHAT SEEMS A
STRIKING DEPARTURE FROM THE RESULT DICTATED BY ELEMENTARY PRINCIPLES IN
THE LAW OF REMEDIES.  WHERE EXISTING LAW IMPOSES A PRIMARY DUTY,
VIOLATIONS OF WHICH ARE COMPENSABLE IF THEY CAUSE INJURY, NOTHING IN
ORDINARY NOTIONS OF JUSTICE SUGGESTS THAT A VIOLATION SHOULD BE
NONACTIONABLE SIMPLY BECAUSE IT WAS SERIOUS ENOUGH TO CAUSE DEATH.  ON
THE CONTRARY, THAT RULE HAS BEEN CRITICIZED EVER SINCE ITS INCEPTION,
AND DESCRIBED IN SUCH TERMS AS "BARBAROUS."  E.G., OSBORN V. GILLETT,
L.R. 8 EX. 88, 94 (1873) (LORD BRAMWELL, DISSENTING); F. POLLOCK, LAW
OF TORTS 55 (LANDON ED. 1951); 3 W.HOLDSWORTH,HISTORY OF ENGLISH LAW
676-677 (3D ED. 1927).  BECAUSE THE PRIMARY DUTY ALREADY EXISTS, THE
DECISION WHETHER TO ALLOW RECOVERY FOR VIOLATIONS CAUSING DEATH IS
ENTIRELY A REMEDIAL MATTER.  IT IS TRUE THAT THE HARMS TO BE ASSUAGED
ARE NOT IDENTICAL IN THE TWO CASES:  IN THE CASE OF MERE INJURY, THE
PERSON PHYSICALLY HARMED IS MADE WHOLE FOR HIS HARM, WHILE IN THE CASE
OF DEATH, THOSE CLOSEST TO HIM-- USUALLY SPOUSE AND CHILDREN-- SEEK TO
RECOVER FOR THEIR TOTAL LOSS OF ONE ON WHOM THEY DEPENDED.  THIS
DIFFERENCE, HOWEVER, EVEN WHEN COUPLED WITH THE PRACTICAL DIFFICULTIES
OF DEFINING THE CLASS OF BENEFICIARIES WHO MAY RECOVER FOR DEATH, DOES
NOT SEEM TO ACCOUNT FOR THE LAW'S REFUSAL TO RECOGNIZE A WRONGFUL
KILLING AS AN ACTIONABLE TORT.  ONE EXPECTS, THEREFORE, TO FIND A
PERSUASIVE, INDEPENDENT JUSTIFICATION FOR THIS APPARENT LEGAL ANOMALY. 

LEGAL HISTORIANS HAVE CONCLUDED THAT THE SOLE SUBSTANTIAL BASIS FOR
THE RULE AT COMMON LAW IS A FEATURE OF THE EARLY ENGLISH LAW THAT DID
NOT SURVIVE INTO THIS CENTURY-- THE FELONY-MERGER DOCTRINE.  SEE
POLLOCK, SUPRA, AT 52-57; HOLDSWORTH, THE ORIGIN OF THE RULE IN BAKER
V. BOLTON, 32 L.Q.REV.  432 (1916).  ACCORDING TO THIS DOCTRINE, THE
COMMON LAW DID NOT ALLOW CIVIL RECOVERY FOR AN ACT THAT CONSTITUTED
BOTH A TORT AND A FELONY.  THE TORT WAS TREATED AS LESS IMPORTANT THAN
THE OFFENSE AGAINST THE CROWN, AND WAS MERGED INTO, OR PRE-EMPTED BY,
THE FELONY.  SMITH V. SYKES, 1 FREEM.  224, 89 ENG.REP.  160 (K.B.
1677); HIGGINS V. BUTCHER, YEL.  89, 80 ENG.REP.  61 (K.B. 1606).  THE
DOCTRINE FOUND PRACTICAL JUSTIFICATION IN THE FACT THAT THE PUNISHMENT
FOR THE FELONY WAS THE DEATH OF THE FELON AND THE FORFEITURE OF HIS
PROPERTY TO THE CROWN; THUS, AFTER THE CRIME HAD BEEN PUNISHED, NOTHING
REMAINED OF THE FELON OR HIS PROPERTY ON WHICH TO BASE A CIVIL ACTION. 
SINCE ALL INTENTIONAL OR NEGLIGENT HOMICIDE WAS FELONIOUS, THERE COULD
BE NO CIVIL SUIT FOR WRONGFUL DEATH. 

THE FIRST EXPLICIT STATEMENT OF THE COMMON-LAW RULE AGAINST RECOVERY
FOR WRONGFUL DEATH CAME IN THE OPINION OF LORD ELLENBOROUGH, SITTING AT
NISI PRIUS, IN BAKER V. BOLTON, 1 CAMP.  493, 170 ENG.REP.  1033
(1808).  THAT OPINION DID NOT CITE AUTHORITY, OR GIVE SUPPORTING
REASONING, OR REFER TO THE FELONY-MERGER DOCTRINE IN ANNOUNCING THAT
"(IN A CIVIL COURT, THE DEATH OF A HUMAN BEING COULD NOT BE COMPLAINED
OF AS AN INJURY."  IBID.  NOR HAD THE FELONY-MERGER DOCTRINE SEEMINGLY
BEEN CITED AS THE BASIS FOR THE DENIAL OF RECOVERY IN ANY OF THE OTHER
REPORTED WRONGFUL-DEATH CASES SINCE THE EARLIEST ONES, IN THE 17TH
CENTURY.  E.G., SMITH V. SYKES, SUPRA; HIGGINS V. BUTCHER, SUPRA.
HOWEVER, IT SEEMS CLEAR FROM THOSE FIRST CASES THAT THE RULE OF BAKER
V. BOLTON DID DERIVE FROM THE FELONY-MERGER DOCTRINE, AND THAT THERE
WAS NO OTHER GROUND ON WHICH IT MIGHT BE SUPPORTED EVEN AT THE TIME OF
ITS INCEPTION.  THE HOUSE OF LORDS IN 1916 CONFIRMED THIS HISTORICAL
DERIVATION, AND HELD THAT ALTHOUGH THE FELONY-MERGER DOCTRINE WAS NO
LONGER PART OF THE LAW, THE RULE AGAINST RECOVERY FOR WRONGFUL DEATH
SHOULD CONTINUE EXCEPT AS MODIFIED BY STATUTE.  ADMIRALTY COMMISSIONERS
V. S.S. AMERIKA, (1917) A.C. 38.  LORD PARKER'S OPINION ACKNOWLEDGED
THAT THE RULE WAS "ANOMALOUS . . . TO THE SCIENTIFIC JURIST," BUT
CONCLUDED THAT BECAUSE IT HAD ONCE FOUND JUSTIFICATION IN THE DOCTRINE
THAT "THE TRESPASS WAS DROWNED IN THE FELONY," IT SHOULD CONTINUE AS A
RULE "EXPLICABLE ON HISTORICAL GROUNDS" EVEN AFTER THE DISAPPEARANCE OF
THAT JUSTIFICATION.  ID., AT 44, 50; SEE 3 W. HOLDSWORTH, HISTORY OF
ENGLISH LAW 676-677 (3D ED. 1927).  LORD SUMNER AGREED, RELYING IN PART
ON THE FACT THAT THIS COURT HAD ADOPTED THE ENGLISH RULE IN BRAME. 
ALTHOUGH CONCEDING THE FORCE OF LORD BRAMWELL'S DISSENT IN OSBORN V.
GILLETT, L.R. 8 EX. 88, 93 (1873), AGAINST THE RULE, LORD PARKER STATED
THAT IT WAS NOT "ANY PART OF THE FUNCTIONS OF THIS HOUSE TO CONSIDER
WHAT RULES OUGHT TO PREVAIL IN A LOGICAL AND SCIENTIFIC SYSTEM OF
JURISPRUDENCE," AND THUS THAT HE WAS BOUND SIMPLY TO FOLLOW THE PAST
DECISIONS.  (1917) A.C., AT 42-43.  /4/ 

THE HISTORICAL JUSTIFICATION MARSHALED FOR THE RULE IN ENGLAND NEVER
EXISTED IN THIS COUNTRY.  IN LIMITED INSTANCES AMERICAN LAW DID ADOPT A
VESTIGE OF THE FELONY-MERGER DOCTRINE, TO THE EFFECT THAT A CIVIL
ACTION WAS DELAYED UNTIL AFTER THE CRIMINAL TRIAL.  HOWEVER, IN THIS
COUNTRY THE FELONY PUNISHMENT DID NOT INCLUDE FORFEITURE OF PROPERTY;
THEREFORE, THERE WAS NOTHING, EVEN IN THOSE LIMITED INSTANCES, TO BAR A
SUBSEQUENT CIVIL SUIT.  E.G., GROSSO V. DELAWARE, LACKAWANNA & WEST. 
R. CO., 50 N.J.L. 317, 319-320, 13 A. 233, 234 (1888); HYATT V. ADAMS,
16 MICH. 180, 185-188 (1867); SEE W. PROSSER, LAW OF TORST 8, 920-924
(3D ED. 1964).  NEVERTHELESS, DESPITE SOME EARLY CASES IN WHICH THE
RULE WAS REJECTED AS "INCAPABLE OF VINDICATION," E.G., SULLIVAN V.
UNION PAC. R. CO., 23 F.CAS.  368, 371 (NO. 13,599) (C.C. NEB. 1874);
SHIELDS V. YONGE, 15 GA. 349 (1854); CF. CROSS V. GUTHERY, 2 ROOT 90,
92 (CONN. 1794), AMERICAN COURTS GENERALLY ADOPTED THE ENGLISH RULE AS
THE COMMON LAW OF THIS COUNTRY AS WELL.  THROUGHOUT THE PERIOD OF THIS
ADOPTION, CULMINATING IN THIS COURT'S DECISION IN BRAME, THE COURTS
FAILED TO PRODUCE ANY SATISFACTORY JUSTIFICATION FOR APPLYING THE RULE
IN THIS COUNTRY. 

SOME COURTS EXPLAINED THAT THEIR HOLDINGS WERE PROMPTED BY AN
ASSERTED DIFFICULTY IN COMPUTATION OF DAMAGES FOR WRONGFUL DEATH OR BY
A "REPUGNANCE . . . TO SETTING A PRICE UPON HUMAN LIFE."  E.G.,
CONNECTICUT MUT. LIFE INS. CO. V. NEW YORK & N.H.R. CO., 25 CONN. 265,
272-273 (1856); HYATT V. ADAMS, SUPRA, AT 191.  HOWEVER, OTHER COURTS
HAVE RECOGNIZED THAT CALCULATION OF THE LOSS SUSTAINED BY DEPENDENTS OR
BY THE ESTATE OF THE DECEASED, WHICH IS REQUIRED UNDER MOST PRESENT
WRONGFUL-DEATH STATUTES, SEE SMITH, WRONGFUL DEATH DAMAGES IN NORTH
CAROLINA, 44 N.C.L.REV.  402, 405-406, NN. 17, 18 (1966), DOES NOT
PRESENT DIFFICULTIES MORE INSURMOUNTABLE THAN ASSESSMENT OF DAMAGES FOR
MANY NONFATAL PERSONAL INJURIES.  SEE HOLLYDAY V. THE DAVID REEVES, 12
F.CAS.  386, 388 (NO. 6,625) (D.C. MD. 1879); GREEN V. HUDSON RIVER R.
CO., 28 BARB.  9, 17-18 (N.Y. 1858).     IT WAS SUGGESTED BY SOME
COURTS AND COMMENTATORS THAT THE PROHIBITION OF NONSTATUTORY WRONGFUL
DEATH ACTIONS DERIVED SUPPORT FROM THE ANCIENT COMMON-LAW RULE THAT A
PERSONAL CAUSE OF ACTION IN TORT DID NOT SURVIVE THE DEATH OF ITS
POSSESSOR, E.G., EDEN V. LEXINGTON & FRANKFORT R. CO., 53 KY. 204, 206
(1853); AND THE DECISION IN BAKER V. BOLTON ITSELF MAY HAVE BEEN
INFLUENCED BY THIS PRINCIPLE.  HOLDSWORTH, THE ORIGIN OF THE RULE IN
BAKER V. BOLTON, 32 L.Q.REV.  431, 435 (1916).  HOWEVER, IT IS NOW
UNIVERSALLY RECOGNIZED THAT BECAUSE THIS PRINCIPLE PERTAINS ONLY TO THE
VICTIM'S OWN PERSONAL CLAIMS, SUCH AS FOR PAIN AND SUFFERING, IT HAS NO
BEARING ON THE QUESTION WHETHER A DEPENDENT SHOULD BE PERMITTED TO
RECOVER FOR THE INJURY HE SUFFERS FROM THE VICTIM'S DEATH.  SEE IBID.;
POLLOCK, SUPRA, AT 53; WINFIELD, DEATH AS AFFECTING LIABILITY IN TORT,
29 COL.L.REV.  239-250, 253 (1929). 

THE MOST LIKELY REASON THAT THE ENGLISH RULE WAS ADOPTED IN THIS
COUNTRY WITHOUT MUCH QUESTION IS SIMPLY THAT IT HAD THE BLESSING OF
AGE.  THAT WAS THE THRUST OF THIS COURT'S OPINION IN BRAME, AS WELL AS
MANY OF THE LOWER COURT OPINIONS.  E.G., GROSSO V. DELAWARE, LACKAWANNA
& WEST.  R. CO., SUPRA.  SUCH NEARLY AUTOMATIC ADOPTION SEEMS AT ODDS
WITH THE GENERAL PRINCIPLE, WIDELY ACCEPTED DURING THE EARLY YEARS OF
OUR NATION, THAT WHILE "(OUR ANCESTORS BROUGHT WITH THEM (THE) GENERAL
PRINCIPLES (OF THE COMMON LAW) AND CLAIMED IT AS THEIR BIRTHRIGHT; . .
. THEY BROUGHT WITH THEM AND ADOPTED ONLY THAT PORTION WHICH WAS
APPLICABLE TO THEIR SITUATION."  VAN NESS V. PACARD, 2 PET. 137, 144
(1829) (STORY, J.); THE LOTTAWANNA, 21 WALL.  558, 571-574 (1875); SEE
R. POUND, THE FORMATIVE ERE OF AMERICAN LAW 93-97 (1938); H. HART & A.
SACKS, THE LEGAL PROCESS 450 (TENT.  ED. 1958).  THE AMERICAN COURTS
NEVER MADE THE INQUIRY WHETHER THIS PARTICULAR ENGLISH RULE, BITTERLY
CRITICIZED IN ENGLAND, "WAS APPLICABLE TO THEIR SITUATION," AND IT IS
DIFFICULT TO IMAGINE ON WHAT BASIS THEY MIGHT HAVE CONCLUDED THAT IT
WAS. 

FURTHER, EVEN AFTER THE DECISION IN BRAME, IT IS NOT APPARENT WHY
THE COURT IN THE HARRISBURG CONCLUDED THAT THERE SHOULD NOT BE A
DIFFERENT RULE FOR ADMIRALTY FROM THAT APPLIED AT COMMON LAW.  MARITIME
LAW HAD ALWAYS, IN THIS COUNTRY AS IN ENGLAND, BEEN A THING APART FROM
THE COMMON LAW.  IT WAS, TO A LARGE EXTENT, ADMINISTERED BY DIFFERENT
COURTS; IT OWED A MUCH GREATER DEBT TO THE CIVIL LAW; /5/  AND, FROM
ITS FOCUS ON A PARTICULAR SUBJECT MATTER, IT DEVELOPED GENERAL
PRINCIPLES UNKNOWN TO THE COMMON LAW.  THESE PRINCIPLES INCLUDED A
SPECIAL SOLICITUDE FOR THE WELFARE OF THOSE MEN WHO UNDERTOOK TO
VENTURE UPON HAZARDOUS AND UNPREDICTABLE SEA VOYAGES.  SEE GENERALLY G.
GILMORE & C. BLACK, THE LAW OF ADMIRALTY 1-11, 253 (1957); P. EDELMAN,
MARITIME INJURY AND DEATH 1 (1960).  THESE FACTORS SUGGEST THAT THERE
MIGHT HAVE BEEN NO ANOMALY IN ADOPTION OF A DIFFERENT RULE TO GOVERN
MARITIME RELATIONS, AND THAT THE COMMON-LAW RULE, CRITICIZED AS UNJUST
IN ITS OWN DOMAIN, MIGHT WISELY HAVE BEEN REJECTED AS INCOMPATIBLE WITH
THE LAW OF THE SEA.  THIS WAS THE CONCLUSION REACHED BY CHIEF JUSTICE
CHASE, PRIOR TO THE HARRISBURG, SITTING ON CIRCUIT IN THE SEA GULL, 21
F.CAS.  909 (NO. 12,578) (C.C. MD. 1865).  HE THERE REMARKED THAT 

"THERE ARE CASES, INDEED, IN WHICH IT HAS BEEN HELD THAT IN A SUIT
AT LAW, NO REDRESS CAN BE HAD BY THE SURVIVING REPRESENTATIVE FOR
INJURIES OCCASIONED BY THE DEATH OF ONE THROUGH THE WRONG OF ANOTHER;
BUT THESE ARE ALL COMMON-LAW CASES, AND THE COMMON LAW HAS ITS PECULIAR
RULES IN RELATION TO THIS SUBJECT, TRACEABLE TO THE FEUDAL SYSTEM AND
ITS FORFEITURES . . . AND CERTAINLY IT BETTER BECOMES THE HUMANE AND
LIBERAL CHARACTER OF PROCEEDINGS IN ADMIRALTY TO GIVE THAN TO WITHHOLD
THE REMEDY, WHEN NOT REQUIRED TO WITHHOLD IT BY ESTABLISHED AND
INFLEXIBLE RULES."  ID., AT 910. 

NUMEROUS OTHER FEDERAL MARITIME CASES, ON SIMILAR REASONING, HAD
REACHED THE SAME RESULT.  E.G., THE COLUMBIA, 27 F. 704 (D.C.S.D.N.Y.
1886); THE MANHASSET, 18 F. 918 (D.C.E.D. VA. 1884); THE E. B. WARD,
JR., 17 F. 456 (C.C.E.D. LA. 1883); THE GARLAND, 5 F. 924 (D.C.E.D.
MICH. 1881); HOLMES V. O. & C.R. CO., 5 F. 75 (D.C. ORE.  1880); THE
TOWANDA, 24 F.CAS.  74 (NO. 14,109) (C.C.E.D. PA. 1877); PLUMMER V.
WEBB, 19 F.CAS.  894 (NO. 11,234) (D.C. MAINE 1825); HOLLYDAY V. THE
DAVID REEVES, 12 F.CAS.  386 (NO. 6,625 (D.C. MD. 1879).  DESPITE THE
TENOR OF THESE CASES, SOME DECIDED AFTER BRAME, THE COURT IN THE
HARRISBURG CONCLUDED THAT "THE ADMIRALTY JUDGES IN THE UNITED STATES
DID NOT RELY FOR THEIR JURISDICTION ON ANY RULE OF THE MARITIME LAW
DIFFERENT FROM THAT OF THE COMMON LAW,BUT (ONLY) ON THEIR OPINION THAT
THE RULE OF THE ENGLISH COMMON LAW WAS NOT FOUNDED IN REASON, AND HAD
NOT BECOME FIRMLY ESTABLISHED IN THE JURISPRUDENCE OF THIS COUNTRY." 
119 U.S.,AT 208.  WITHOUT DISCUSSING ANY CONSIDERATIONS THAT MIGHT
SUPPORT A DIFFERENT RULE FOR ADMIRALTY, THE COURT HELD THAT MARITIME
LAW MUST BE IDENTICAL IN THIS RESPECT TO THE COMMON LAW. 

        II 

WE NEED NOT, HOWEVER, PRONOUNCE A VERDICT ON WHETHER THE HARRISBURG,
WHEN DECIDED, WAS A CORRECT EXTRAPOLATION OF THE PRINCIPLES OF
DECISIONAL LAW THEN IN EXISTENCE.  A DEVELOPMENT OF MAJOR SIGNIFICANCE
HAS INTERVENED, MAKING CLEAR THAT THE RULE AGAINST RECOVERY FOR
WRONGFUL DEATH IS SHARPLY OUT OF KEEPING WITH THE POLICIES OF MODERN
AMERICAN MARITIME LAW.  THIS DEVELOPMENT IS THE WHOLESALE ABANDONMENT
OF THE RULE IN MOST OF THE AREAS WHERE IT ONCE HELD SWAY, QUITE
EVIDENTLY PROMPTED BY THE SAME SENSE OF THE RULE'S INJUSTICE THAT
GENERATED SO MUCH CRITICISM OF ITS ORIGINAL PROMULGATION. 

TO SOME EXTENT THIS REJECTION HAS BEEN JUDICIAL.  THE ENGLISH HOUSE
OF LORDS IN 1937 EMASCULATED THE RULE WITHOUT EXPRESSLY OVERRULING IT.
ROSE V. FORD, (1937) A.C. 826.  LORD ATKIN REMARKED ABOUT THE DECISION
IN S.S. AMERIKA THAT "(THE REASONS GIVEN, WHETHER HIMSTORICAL OR
OTHERWISE, MAY SEEM UNSATISFACTORY," AND THAT "IF THE RULE IS REALLY
BASED ON THE RELEVANT DEATH BEING DUE TO FELONY, IT SHOULD LONG AGO
HAVE BEEN RELEGATED TO A MUSEUM."  AT ANY RATE, HE SAW "NO REASON FOR
EXTENDING THE ILLOGICAL DOCTRINE . . . TO ANY CASE WHERE IT DOES NOT
CLEARLY APPLY."  ID., AT 833, 834.  LORD ATKIN CONCLUDED THAT, WHILE
THE DOCTRINE BARRED RECOGNITION OF A CLAIM IN THE DEPENDENTS FOR THE
WRONGFUL DEATH OF A PERSON, IT DID NOT BAR RECOGNITION OF A COMMON-LAW
CLAIM IN THE DECEDENT HIMSELF FOR "LOSS OF EXPECTATION OF LIFE"-- A
CLAIM THAT VESTED IN THE PERSON IN THE INTERVAL BETWEEN THE INJURY AND
DEATH, AND THEREUPON PASSED, WITH THE AID OF A SURVIVAL STATUTE, TO THE
REPRESENTATIVE OF HIS ESTATE.  HE EXPRESSED NO DOUBT THAT THE CLAIM WAS
"CAPABLE OF BEING ESTIMATED IN TERMS OF MONEY:  AND THAT THE
CALCULATION SHOULD BE MADE."  ID., AT 834.  /6/  THUS, EXCEPT THAT THE
MEASURE OF DAMAGES MIGHT DIFFER, THE REPRESENTATIVE WAS ALLOWED TO
RECOVER ON BEHALF OF THE HEIRS WHAT THEY COULD NOT RECOVER IN THEIR OWN
NAMES. 

MUCH EARLIER, HOWEVER, THE LEGISLATURES BOTH HERE AND IN ENGLAND
BEGAN TO EVIDENCE UNANIMOUS DISAPPROVAL OF THE RULE AGAINST RECOVERY
FOR WRONGFUL DEATH.  THE FIRST STATUTE PARTIALLY ABROGATING THE RULE
WAS LORD CAMPBELL'S ACT, 9 & 10 VICT., C. 93 (1846), WHICH GRANTED
RECOVERY TO THE FAMILIES OF PERSONS KILLED BY TORTIOUS CONDUCT,
"ALTHOUGH THE DEATH SHALL HAVE BEEN CAUSED UNDER SUCH CIRCUMSTANCES AS
AMOUNT IN LAW TO FELONY."  /7/ 

IN THE UNITED STATES, EVERY STATE TODAY HAS ENACTED A WRONGFUL-DEATH
STATUTE.  SEE SMITH,SUPRA, 44 N.C.L.REV.  402.  THE CONGRESS HAS
CREATED ACTIONS FOR WRONGFUL DEATHS OF RAILROAD EMPLOYEES, FEDERAL
EMPLOYERS' LIABILITY ACT, 45 U.S.C. 51-59; OF MERCHANT SEAMEN, JONES
ACT, 46 U.S.C. 688; AND OF PERSONS ON THE HIGH SEAS, DEATH ON THE HIGH
SEAS ACT, 46 U.S.C. 761, 762.  /8/  CONGRESS HAS ALSO, IN THE FEDERAL
TORT CLAIMS ACT, 28 U.S.C. 1346(B), MADE THE UNITED STATES SUBJECT TO
LIABILITY IN CERTAIN CIRCUMSTANCES FOR NEGLIGENTLY CAUSED WRONGFUL
DEATH TO THE SAME EXTENT AS A PRIVATE PERSON.  SEE,E.G., RICHARDS V.
UNITED STATES, 369 U.S. 1 (1962). 

THESE NUMEROUS AND BROADLY APPLICABLE STATUTES, TAKEN AS A WHOLE,
MAKE IT CLEAR THAT THERE IS NO PRESENT PUBLIC POLICY AGAINST ALLOWING
RECOVERY FOR WRONGFUL DEATH.  THE STATUTES EVIDENCE A WIDE REJECTION BY
THE LEGISLATURES OF WHATEVER JUSTIFICATIONS MAY ONCE HAVE EXISTED FOR A
GENERAL REFUSAL TO ALLOW SUCH RECOVERY.  THIS LEGISLATIVE ESTABLISHMENT
OF POLICY CARRIES SIGNIFICANCE BEYOND THE PARTICULAR SCOPE OF EACH OF
THE STATUTES INVOLVED.  THE POLICY THUS ESTABLISHED HAS BECOME ITSELF A
PART OF OUR LAW, TO BE GIVEN ITS APPROPRIATE WEIGHT NOT ONLY IN MATTERS
OF STATUTORY CONSTRUCTION BUT ALSO IN THOSE OF DECISIONAL LAW.  SEE
LANDIS, STATUTES AND THE SOURCES OF LAW, IN HARVARD LEGAL ESSAYS 213,
226-227 (1934).  MR. JUSTICE HOLMES, SPEAKING ALSO FOR CHIEF JUSTICE
TAFT AND JUSTICES BRANDEIS AND MCKENNA, STATED ON THE VERY TOPIC OF
REMEDIES FOR WRONGFUL DEATH: 

"(IT SEEMS TO ME THAT COURTS IN DEALING WITH STATUTES SOMETIMES HAVE
BEEN TOO SLOW TO RECOGNIZE THAT STATUTES EVEN WHEN IN TERMS COVERING
ONLY PARTICULAR CASES MAY IMPLY A POLICY DIFFERENT FROM THAT OF THE
COMMON LAW, AND THEREFORE MAY EXCLUDE A REFERENCE TO THE COMMON LAW FOR
THE PURPOSE OF LIMITING THEIR SCOPE.  JOHNSON V. UNITED STATES, 163
FED. 30, 32.  WITHOUT GOING INTO THE REASONS FOR THE NOTION THAT AN
ACTION (OTHER THAN AN APPEAL) DOES NOT LIE FOR CAUSING THE DEATH OF A
HUMAN BEING, IT IS ENOUGH TO SAY THAT THEY HAVE DISAPPEARED.  THE
POLICY THAT FORBADE SUCH AN ACTION, IF IT WAS MORE PROFOUND THAN THE
ABSENCE OF A REMEDY WHEN A MAN'S BODY WAS HANGED AND HIS GOODS
CONFISCATED FOR THE FELONY, HAS BEEN SHOWN NOT TO BE THE POLICY OF
PRESENT LAW BY STATUTES OF THE UNITED STATES AND OF MOST IF NOT ALL OF
THE STATES."  PANAMA R. CO. V. ROCK, 266 U.S. 209, 216 (1924)
(DISSENTING OPINION.  /9/ DEAN POUND SUBSEQUENTLY ECHOED THIS
OBSERVATION, CONCLUDING THAT:  "TODAY WE SHOULD BE THINKING OF THE
DEATH STATUTES AS PART OF THE GENERAL LAW."  POUND, COMMENT ON STATE
DEATH STATUTES-- APPLICATION TO DEATH IN ADMIRALTY, 13 NACCA L.J. 188,
189 (1954); SEE COX V. ROTH, 348 U.S. 207, 210 (1955). 

THIS APPRECIATION OF THE BROADER ROLE PLAYED BY LEGISLATION IN THE
DEVELOPMENT OF THE LAW REFLECTS THE PRACTICES OF COMMON-LAW COURTS FROM
THE MOST ANCIET TIMES.  AS PROFESSOR LANDIS HAS SAID, "MUCH OF WHAT IS
ORDINARILY REGARDED AS 'COMMON LAW' FINDS ITS SOURCE IN LEGISLATIVE
ENACTMENT."  LANDIS, SUPRA, AT 214.  IT HAS ALWAYS BEEN THE DUTY OF THE
COMMON-LAW COURT TO PERCEIVE THE IMPACT OF MAJOR LEGISLATIVE
INNOVATIONS AND TO INTERWEAVE THE NEW LEGISLATIVE POLICIES WITH THE
INHERITED BODY OF COMMON-LAW PRINCIPLES-- MANY OF THEM DERIVING FROM
EARLIER LEGISLATIVE EXERTIONS. 

THE LEGISLATURE DOES NOT, OF COURSE, MERELY ENACT GENERAL POLICIES. 
BY THE TERMS OF A STATUTE, IT ALSO INDICATES ITS CONCEPTION OF THE
SPHERE WITHIN WHICH THE POLICY IS TO HAVE EFFECT.  IN MANY CASES THE
SCOPE OF A STATUTE MAY REFLECT NOTHING MORE THAN THE DIMENSIONS OF THE
PARTICULAR PROBLEM THAT CAME TO THE ATTENTION OF THE LEGISLATURE,
INVITING THE CONCLUSION THAT THE LEGISLATIVE POLICY IS EQUALLY
APPLICABLE TO OTHER SITUATIONS IN WHICH THE MISCHIEF IS IDENTICAL. 
THIS CONCLUSION IS REINFORCED WHERE THERE EXISTS NOT ONE ENACTMENT BUT
A COURSE OF LEGISLATION DEALING WITH A SERIES OF SITUATIONS, AND WHERE
THE GENERALITY OF THE UNDERLYING PRINCIPLE IS ATTESTED BY THE
LEGISLATION OF OTHER JURISDICTIONS.  ID., AT 215-216, 220-222.  ON THE
OTHER HAND, THE LEGISLATURE MAY, IN ORDER TO PROMOTE OTHER, CONFLICTING
INTERESTS, PRESCRIBE WITH PARTICULARITY THE COMPASS OF THE LEGISLATIVE
AIM, ERECTING A STRONG INFERENCE THAT TERRITORIES BEYOND THE BOUNDARIES
SO DRAWN ARE NOT TO FEEL THE IMPACT OF THE NEW LEGISLATIVE
DISPENSATION.  WE MUST, THEREFORE, ANALYZE WITH CARE THE CONGRESSIONAL
ENACTMENTS THAT HAVE ABROGATED THE COMMON-LAW RULE IN THE MARITIME
FIELD, TO DETERMINE THE IMPACT OF THE FACT THAT NONE APPLIES IN TERMS
TO THE SITUATION OF THIS CASE.  SEE PART III, INFRA.  HOWEVER, IT IS
SUFFICIENT AT THIS POINT TO CONCLUDE, AS MR. JUSTICE HOLMES DID 45
YEARS AGO, THAT THE WORK OF THE LEGISLATURES HAS MADE THE ALLOWANCE OF
RECOVERY FOR WRONGFUL DEATH THE GENERAL RULE OF AMERICAN LAW, AND ITS
DENIAL THE EXCEPTION.  WHERE DEATH IS CAUSED BY THE BREACH OF A DUTY
IMPOSED BY FEDERAL MARITIME LAW, CONGRESS HAS ESTABLISHED A POLICY
FAVORING RECOVERY IN THE ABSENCE OF A LEGISLATIVE DIRECTION TO EXCEPT A
PARTICULAR CLASS OF CASES. 

  III 

OUR UNDERTAKING, THEREFORE, IS TO DETERMINE WHETHER CONGRESS HAS
GIVEN SUCH A DIRECTION IN ITS LEGISLATION GRANTING REMEDIES FOR
WRONGFUL DEATHS IN PORTIONS OF THE MARITIME DOMAIN.  WE FIND THAT
CONGRESS HAS GIVEN NO AFFIRMATIVE INDICATION OF AN INTENT TO PRECLUDE
THE JUDICIAL ALLOWANCE OF A REMEDY FOR WRONGFUL DEATH TO PERSONS IN THE
SITUATION OF THIS PETITIONER. 

FROM THE DATE OF THE HARRISBURG UNTIL 1920, THERE WAS NO REMEDY FOR
DEATH ON THE HIGH SEAS CAUSED BY BREACH OF ONE OF THE DUTIES IMPOSED BY
FEDERAL MARITIME LAW.  FOR DEATHS WITHIN STATE TERRITORIAL WATERS, THE
FEDERAL LAW ACCOMMODATED THE HUMANE POLICIES OF STATE WRONGFUL-DEATH
STATUTES BY ALLOWING RECOVERY WHENEVER AN APPLICABLE STATE STATUTE
FAVORED SUCH RECOVERY.  /10/  CONGRESS ACTED IN 1920 TO FURNISH THE
REMEDY DENIED BY THE COURTS FOR DEATHS BEYOND THE JURISDICTION OF ANY
STATE, BY PASSING TWO LANDMARK STATUTES.  THE FIRST OF THESE WAS THE
DEATH ON THE HIGH SEAS ACT, 41 STAT. 537, 46 U.S.C. 761 ET SEQ. SECTION
1 OF THAT ACT PROVIDES THAT: 

     "WHENEVER THE DEATH OF A PERSON SHALL BE CAUSED BY WRONGFUL

  ACT, NEGLECT, OR DEFAULT OCCURRING ON THE HIGH SEAS BEYOND A

  MARINE LEAGUE FROM THE SHORE OF ANY STATE, . . . THE PERSONAL

  REPRESENTATIVE OF THE DECEDENT MAY MAINTAIN A SUIT FOR DAMAGES IN

  THE DISTRICT COURTS OF THE UNITED STATES, IN ADMIRALTY, FOR THE

  EXCLUSIVE BENEFIT OF THE DECEDENT'S WIFE, HUSBAND, PARENT, CHILD,

  OR DEPENDENT RELATIVE AGAINST THE VESSEL, PERSON, OR CORPORATION

WHICH WOULD HAVE BEEN LIABLE IF DEATH HAD NOT ENSURED." 


     "THE PROVISIONS OF ANY STATE STATUTE GIVING OR REGULATING

  RIGHTS OF ACTION OR REMEDIES FOR DEATH SHALL NOT BE AFFECTED BY

  THIS (ACT).  NOR SHALL THIS (ACT) APPLY TO THE GREAT LAKES OR TO

ANY WATERS WITHIN THE TERRITORIAL LIMITS OF ANY STATE . . . ." 

THE SECOND STATUTE WAS THE JONES ACT, 41 STAT. 1007, 46 U.S.C. 688,
WHICH, BY EXTENDING TO SEAMEN THE PROTECTIONS OF THE FEDERAL EMPLOYERS'
LIABILITY ACT, PROVIDED A RIGHT OF RECOVERY AGAINST THEIR EMPLOYERS
FOR NEGLIGENCE RESULTING IN INJURY OR DEATH.  THIS RIGHT FOLLOWS FROM
THE SEAMAN'S EMPLOYMENT STATUS AND IS NOT LIMITED TO INJURY OR DEATH
OCCURRING ON THE HIGH SEAS.  /11/ 

THE UNITED STATES, PARTICIPATING AS AMICUS CURIAE, CONTENDED AT ORAL
ARGUMENT THAT THESE STATUTES, IF CONSTRUED TO FORBID RECOGNITION OF A
GENERAL MARITIME REMEDY FOR WRONGFUL DEATH WITHIN TERRITORIAL
WATERS,WOULD PERPETUATE THREE ANOMALIES OF PRESENT LAW.  THE FIRST OF
THESE IS SIMPLY THE DISCREPANCY PRODUCED WHENEVER THE RULE OF THE
HARRISBURG HOLDS SWAY:  WITHIN TERRITORIAL WATERS, IDENTICAL CONDUCT
VIOLATING FEDERAL LAW (HERE THE FURNISHING OF AN UNSEAWORTHY VESSEL)
PRODUCES LIABILITY IF THE VICTIM IS MERELY INJURED, BUT FREQUENTLY NOT
IF HE IS KILLED.  AS WE HAVE CONCLUDED, SUCH A DISTINCTION IS NOT
COMPATIBLE WITH THE GENERAL POLICIES OF FEDERAL MARITIME LAW. 

THE SECOND INCONGRUITY IS THAT IDENTICAL BREACHES OF THE DUTY TO
PROVIDE A SEAWORTHY SHIP, RESULTING IN DEATH, PRODUCE LIABILITY OUTSIDE
THE THREE-MILE LIMIT-- SINCE A CLAIM UNDER THE DEATH ON THE HIGH SEAS
ACT MAY BE FOUNDED ON UNSEAWORTHINESS, SEE KERNAN V. AMERICAN DREDGING
CO., 355 U.S. 426, 430 N. 4 (1958)-- BUT NOT WITHIN THE TERRITORIAL
WATERS OF A STATE WHOSE LOCAL STATUTE EXCLUDES UNSEAWORTHINESS CLAIMS. 
THE UNITED STATES ARGUES THAT SINCE THE SUBSTANTIVE DUTY IS FEDERAL,
AND FEDERAL MARITIME JURISDICTION COVERS NAVIGABLE WATERS WITHIN AND
WITHOUT THE THREE-MILE LIMIT, NO RATIONAL POLICY SUPPORTS THIS
DISTINCTION IN THE AVAILABILITY OF A REMEDY. 

THE THIRD, AND ASSERTEDLY THE "STRANGEST" ANOMALY IS THAT A TRUE
SEAMAN-- THAT IS, A MEMBER OF A SHIP'S COMPANY, COVERED BY THE JONES
ACT-- IS PROVIDED NO REMEDY FOR DEATH CAUSED BY UNSEAWORTHINESS WITHIN
TERRITORIAL WATERS, WHILE A LONGSHOREMAN, TO WHIM THE DUTY OF
SEAWORTHINESS WAS EXTENDED ONLY BECAUSE HE PERFORMS WORK TRADITIONALLY
DONE BY SEAMEN, DOES HAVE SUCH A REMEDY WHEN ALLOWED BY A STATE
STATUTE.  /12/ 

THERE IS MUCH FORCE TO THE UNITED STATES' ARGUMENT THAT THESE
DISTINCTIONS ARE SO LACKING IN ANY APPARENT JUSTIFICATION THAT WE
SHOULD NOT, IN THE ABSENCE OF COMPELLING EVIDENCE, PRESUME THAT
CONGRESS AFFIRMATIVELY INTENDED TO FREEZE THEM INTO MARITIME LAW. 
THERE SHOULD BE NO PRESUMPTION THAT CONGRESS HAS REMOVED THIS COURT'S
TRADITIONAL RESPONSIBILITY TO VINDICATE THE POLICIES OF MARITIME LAW BY
CEDING THAT FUNCTION EXCLUSIVELY TO THE STATES.  HOWEVER, RESPONDENTS
ARGUE THAT AN INTENT TO DO JUST THAT IS MANIFESTED BY THE PORTIONS OF
THE DEATH ON THE HIGH SEAS ACT QUOTED ABOVE. 

THE LEGISLATIVE HISTORY OF THE ACT SUGGESTS THAT RESPONDENTS
MISCONCEIVE THE THRUST OF THE CONGRESSIONAL CONCERN.  BOTH THE SENATE
AND HOUSE REPORTS CONSIST PRIMARILY OF QUOTED REMARKS BY SUPPORTERS OF
THE PROPOSED ACT.  THOSE SUPPORTERS STATED THAT THE RULE OF THE
HARRISBURG, WHICH HAD BEEN REJECTED BY "(EVERY COUNTRY OF WESTERN
EUROPE," WAS "A DISGRACE TO A CIVILIZED PEOPLE."  "THERE IS NO REASON
WHY THE ADMIRALITY LAW OF THE UNITED STATES SHOULD LONGER DEPEND ON THE
STATUTE LAWS OF THE STATES . . . . CONGRESS CAN NOW BRING OUR MARITIME
LAW INTO LINE WITH THE LAWS OF THOSE ENLIGHTENED NATIONS WHICH CONFER A
RIGHT OF ACTION FOR DEATH AT SEA."  THE ACT WOULD ACCOMPLISH THAT
RESULT "FOR DEATHS ON THE HIGH SEAS, LEAVING UNIMPAIRED THE RIGHTS
UNDER STATE STATUTES AS TO DEATHS ON WATERS WITHIN THE TERRITORIAL
JURISDICTION OF THE STATES . . . . THIS IS FOR THE PURPOSE OF
UNIFORMITY, AS THE STATES CAN NOT PROPERLY LEGISLATE FOR THE HIGH
SEAS."  S. REP. NO. 216, 66TH CONG., 1ST SESS., 3, 4 (1919); H.R. REP.
NO. 674, 66TH CONG., 2D SESS., 3, 4 (1920).  THE DISCUSSION OF THE BILL
ON THE FLOOR OF THE HOUSE EVIDENCED THE SAME CONCERN THAT A CAUSE OF
ACTION BE PROVIDED "IN CASES WHERE THERE IS NOW NO REMEDY," 59
CONG.REC.  4486, AND AT THE SAME TIME THAT "THE POWER OF THE STATES TO
CREATE ACTIONS FOR WRONGFUL DEATH IN NO WAY BE AFFECTED BY ENACTMENT OF
THE FEDERAL LAW."  THE TUNGUS V. SKOVGAARD, 358 U.S.,AT 593. 

READ IN LIGHT OF THE STATE OF MARITIME LAW IN 1920, WE BELIEVE THIS
LEGISLATIVE HISTORY INDICATES THAT CONGRESS INTENDED TO ENSURE THE
CONTINUED AVAILABILITY OF A REMEDY, HISTORICALLY PROVIDED BY THE
STATES, FOR DEATHS IN TERRITORIAL WATERS; ITS FAILURE TO EXTEND THE ACT
TO COVER SUCH DEATHS PRIMARILY REFLECTED THE LACK OF NECESSITY FOR
COVERAGE BY A FEDERAL STATUTE, RATHER THAN AN AFFIRMATIVE DESIRE TO
INSULATE SUCH DEATHS FROM THE BENEFITS OF ANY FEDERAL REMEDY THAT MIGHT
BE AVAILABLE INDEPENDENTLY OF THE ACT.  THE VOID THAT EXISTED IN
MARITIME LAW UP UNTIL 1920 WAS THE ABSENCE OF ANY REMEDY FOR WRONGFUL
DEATH ON THE HIGH SEAS.  CONGRESS, IN ACTING TO FILL THAT VOID,
LEGISLATED ONLY TO THE THREE-MILE LIMIT BECAUSE THAT WAS THE EXTENT OF
THE PROBLEM.  /13/  THE EXPRESS PROVISION THAT STATE REMEDIES IN
TERRITORIAL WATERS WERE NOT DISTURBED BY THE ACT ENSURED THAT CONGRESS'
SOLUTION OF ONE PROBLEM WOULD NOT CREATE ANOTHER BY INVITING THE COURTS
TO FIND THAT THE ACT PRE-EMPTED THE ENTIRE FIELD, DESTROYING THE STATE
REMEDIES THAT HAD PREVIOUSLY EXISTED. 

THE BENEFICIARIES OF PERSONS MEETING DEATH ON TERRITORIAL WATERS DID
NOT SUFFER AT THAT TIME FROM BEING EXCLUDED FROM THE COVERAGE OF THE
ACT.  TO THE CONTRARY, THE STATE REMEDIES THAT WERE LEFT UNDISTURBED
NOT ONLY WERE FAMILIAR BUT ALSO MAY ACTUALLY HAVE BEEN MORE GENEROUS
THAN THE REMEDY PROVIDED BY THE NEW ACT.  ON THE ONE HAND, THE PRIMARY
BASIS OF RECOVERY UNDER STATE WRONGFUL-DEATH STATUTES WAS NEGLIGENCE. 
ON THE OTHER HAND, THE SUBSTANTIVE DUTIES IMPOSED AT THAT TIME BY
GENERAL MARITIME LAW WERE VASTLY DIFFERENT FROM THOSE THAT PRESENTLY
EXIST.  "(THE SEAMAN'S RIGHT TO RECOVER DAMAGES FOR INJURIES CAUSED BY
UNSEAWORTHINESS OF THE SHIP WAS AN OBSCURE AND RELATIVELY LITTLE USED
REMEDY," PERHAPS LARGELY BECAUSE PRIOR TO THIS COURT'S DECISION IN
MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96 (1944), THE SHIPOWNER'S DUTY
WAS ONLY TO USE DUE DILIGENCE TO PROVIDE A SEAWORTHY SHIP.  GILMORE &
BLACK, SUPRA, AT 315, 361; TETREAULT, SEAMEN, SEAWORTHINESS, AND THE
RIGHTS OF HARBOR WORKERS, 39 CORNELL L.Q. 381, 392-393, 396 (1954). 
NONSEAMEN ON THE HIGH SEAS COULD GENERALLY RECOVER FOR ORDINARY
NEGLIGENCE, BUT EVEN THIS WAS VIRTUALLY DENIED TO SEAMEN UNDER THE
PECULIAR MARITIME DOCTRINE OF THE OSCEOLA, 189 U.S. 158, 175 (1903). 
CONGRESS IN 1920 THUS LEGISLATED AGAINST A BACKDROP OF STATE LAWS THAT
IMPOSED A STANDARD OF BEHAVIOR GENERALLY THE SAME AS-- AND IN SOME
RESPECTS PERHAPS MORE FAVORABLE THAN-- THAT IMPOSED BY FEDERAL MARITIME
LAW. 

SINCE THAT TIME THE EQUATION HAS CHANGED DRASTICALLY, THROUGH THIS
COURT'S TRANSFORMATION OF THE SHIPOWNER'S DUTY TO PROVIDE A SEAWORTHY
SHIP INTO AN ABSOLUTE DUTY NOT SATISFIED BY DUE DILIGENCE.  SEE, E.G.,
MAHNICH V. SOUTHERN S.S. CO., SUPRA; MITCHELL V. TRAWLER RACER, INC.,
362 U.S. 539 (1960).  THE UNSEAWORTHINESS DOCTRINE HAS BECOME THE
PRINCIPAL VEHICLE FOR RECOVERY BY SEAMEN FOR INJURY OR DEATH,
OVERSHADOWING TNE NEGLIGENCE ACTION MADE AVAILABLE BY THE JONES ACT,
SEE GILMORE & BLACK, SUPRA, AT 315-332; AND IT HAS ACHIEVED EQUAL
IMPORTANCE FOR LONGSHOREMEN AND OTHER HARBOR WORKERS TO WHOM THE DUTY
OF SEAWORTHINESS WAS EXTENDED BECAUSE THEY PERFORM WORK ON THE VESSEL
TRADITIONALLY DONE BY SEAMEN.  SEAS SHIPPING CO. V. SIERACKI, 328 U.S.
85 (1946).  THE RESULTING DISCREPANCY BETWEEN THE REMEDIES FOR DEATHS
COVERED BY THE DEATH ON THE HIGH SEAS ACT AND FOR DEATHS THAT HAPPEN TO
FALL WITHIN A STATE WRONGFUL-DEATH STATUTE NOT ENCOMPASSING
UNSEAWORTHINESS COULD NOT HAVE BEEN FORESEEN BY CONGRESS.  CONGRESS
MERELY DECLINED TO DISTURB STATE REMEDIES AT A TIME WHEN THEY APPEARED
ADEQUATE TO EFFECTUATE THE SUBSTANTIVE DUTIES IMPOSED BY GENERAL
MARITIME LAW.  THAT ACTION CANNOT BE READ AS AN INSTRUCTION TO THE
FEDERAL COURTS THAT DEATHS IN TERRITORIAL WATERS, CAUSED BY BREACHES OF
THE EVOLVING DUTY OF SEAWORTHINESS, MUST BE DAMNUM ABSQUE INJURIA
UNLESS THE STATES EXPAND THEIR REMEDIES TO MATCH THE SCOPE OF THE
FEDERAL DUTY. 

TO PUT IT ANOTHER WAY, THE MESSAGE OF THE ACT IS THAT IT DOES NOT BY
ITS OWN FORCE ABROGATE AVAILABLE STATE REMEDIES; NO INTENTION APPEARS
THAT THE ACT HAVE THE EFFECT OF FORECLOSING ANY NONSTATUTORY FEDERAL
REMEDIES THAT MIGHT BE FOUND APPROPRIATE TO EFFECTUATE THE POLICIES OF
GENERAL MARITIME LAW.  /14/ 

THAT OUR CONCLUSION IS WHOLLY CONSISTENT WITH THE CONGRESSIONAL
PURPOSE IS CONFIRMED BY THE PASSAGE OF THE JONES ACT ALMOST
SIMULTANEOUSLY WITH THE DEATH ON THE HIGH SEAS ACT.  AS WE OBSERVED IN
GILLESPIE V. UNITED STATES STEEL CORP., 379 U.S. 148, 155 (1964), THE
JONES ACT WAS INTENDED TO ACHIEVE "UNIFORMITY IN THE EXERCISE OF
ADMIRALTY JURISDICTION" BY GIVING SEAMEN A FEDERAL RIGHT TO RECOVER
FROM THEIR EMPLOYERS FOR NEGLIGENCE REGARDLESS OF THE LOCATION OF THE
INJURY OR DEATH.  THAT STRONG CONCERN FOR UNIFORMITY IS SCARCELY
CONSISTENT WITH A CONCLUSION THAT CONGRESS INTENDED TO REQUIRE THE
PRESENT NONUNIFORMITY IN THE EFFECTUATION OF THE DUTY TO PROVIDE A
SEAWORTHY SHIP.  OUR RECOGNITION OF A RIGHT TO RECOVER FOR WRONGFUL
DEATH UNDER GENERAL MARITIME LAW WILL ASSURE UNIFORM VINDICATION OF
FEDERAL POLICIES, REMOVING THE TENSIONS AND DISCREPANCIES THAT HAVE
RESULTED FROM THE NECESSITY TO ACCOMMODATE STATE REMEDIAL STATUTES TO
EXCLUSIVELY MARITIME SUBSTANTIVE CONCEPTS.  E.G., HESS V. UNITED
STATES, 361 U.S. 314 (1960); GOETT V. UNION CARBIDE CORP., 361 U.S. 340
(1960).  /15/  SUCH UNIFORMITY NOT ONLY WILL FURTHER THE CONCERNS OF
BOTH OF THE 1920 ACTS BUT ALSO WILL GIVE EFFECT TO THE CONSTITUTIONALLY
BASED PRINCIPLE THAT FEDERAL ADMIRALTY LAW SHOULD BE "A SYSTEM OF LAW
COEXTENSIVE WITH, AND OPERATING UNIFORMLY IN, THE WHOLE COUNTRY."  THE
LOTTAWANNA, 21 WALL.  558, 575 (1875). 

WE CONCLUDE THAT THE DEATH ON THE HIGH SEAS ACT WAS NOT INTENDED TO
PRECLUDE THE AVAILABILITY OF A REMEDY FOR WRONGFUL DEATH UNDER GENERAL
MARITIME LAW IN SITUATIONS NOT COVERED BY THE ACT.  /16/  BECAUSE THE
REFUSAL OF MARITIME LAW TO PROVIDE SUCH A REMEDY APPEARS TO BE
JURISPRUDENTIALLY UNSOUND AND TO HAVE PRODUCED SERIOUS CONFUSION AND
HARDSHIP, THAT REFUSAL SHOULD CEASE UNLESS THERE ARE SUBSTANTIAL
COUNTERVAILING FACTORS THAT DICTATE ADHERENCE TO THE HARRISBURG SIMPLY
AS A MATTER OF STARE DECISIS.  WE NOW TURN TO A CONSIDERATION OF THOSE
FACTORS. 

        IV 

VERY WEIGHTY CONSIDERATIONS UNDERLIE THE PRINCIPLE THAT COURTS SHOULD
NOT LIGHTLY OVERRULE PAST DECISIONS.  AMONG THESE ARE THE DESIRABILITY
THAT THE LAW FURNISH A CLEAR GUIDE FOR THE CONDUCT OF INDIVIDUALS, TO
ENABLE THEM TO PLAN THEIR AFFAIRS WITH ASSURANCE AGAINST UNTOWARD
SURPRISE; THE IMPORTANCE OF FURTHERING FAIR AND EXPEDITIOUS
ADJUDICATION BY ELIMINATING THE NEED TO RELITIGATE EVERY RELEVANT
PROPOSITION IN EVERY CASE; AND THE NECESSITY OF MAINTAINING PUBLIC
FAITH IN THE JUDICIARY AS A SOURCE OF IMPERSONAL AND REASONED
JUDGMENTS.  THE REASONS FOR REJECTING ANY ESTABLISHED RULE MUST ALWAYS
BE WEIGHED AGAINST THESE FACTORS. 

THE FIRST FACTOR, OFTEN CONSIDERED THE MAINSTAY OF STARE DECISIS, IS
SINGULARLY ABSENT IN THIS CASE.  THE CONFIDENCE OF PEOPLE IN THEIR
ABILITY TO PREDICT THE LEGAL CONSEQUENCES OF THEIR ACTIONS IS VITALLY
NECESSARY TO FACILITATE THE PLANNING OF PRIMARY ACTIVITY AND TO
ENCOURAGE THE SETTLEMENT OF DISPUTES WITHOUT RESORT TO THE COURTS. 
HOWEVER, THAT CONFIDENCE IS THREATENED LEAST BY THE ANNOUNCEMENT OF A
NEW REMEDIAL RULE TO EFFECTUATE WELL-ESTABLISHED PRIMARY RULES OF
BEHAVIOR.  THERE IS NO QUESTION IN THIS CASE OF ANY CHANGE IN THE
DUTIES OWED BY SHIPOWNERS TO THOSE WHO WORK ABOARD THEIR VESSELS. 
SHIPOWNERS WELL UNDERSTAND THAT BREACH OF THE DUTY TO PROVIDE A
SEAWORTHY SHIP MAY SUBJECT THEM TO LIABILITY FOR INJURY REGARDLESS OF
WHERE IT OCCURS, AND FOR DEATH OCCURRING ON THE HIGH SEAS OR IN THE
TERRITORIAL WATERS OF MOST STATES.  IT CAN HARDLY BE SAID THAT
SHIPOWNERS HAVE MOLDED THEIR CONDUCT AROUND THE POSSIBILITY THAT IN A
FEW SPECIAL CIRCUMSTANCES THEY MAY ESCAPE LIABILITY FOR SUCH A BREACH. 
RATHER, THE ESTABLISHED EXPECTATIONS OF BOTH THOSE WHO OWN SHIPS AND
THOSE WHO WORK ON THEM ARE THAT THERE IS A DUTY TO MAKE THE SHIP
SEAWORTHY AND THAT A BREACH OF THAT FEDERALLY IMPOSED DUTY WILL
GENERALLY PROVIDE A BASIS FOR RECOVERY.  IT IS THE EXCEPTIONAL DENIAL
OF RECOVERY THAT DISTURBS THESE EXPECTATIONS.  "IF THE NEW REMEDIAL
DOCTRINE SERVES SIMPLY TO REENFORCE AND MAKE MORE EFFECTUAL WELL
UNDERSTOOD PRIMARY OBLIGATIONS, THE NET RESULT OF INNOVATION MAY BE TO
STRENGTHEN RATHER THAN TO DISTURB THE GENERAL SENSE OF SECURITY."  HART
& SACKS, SUPRA, AT 577; ID., AT 485, 574-577, 585-595, 606-607; POUND,
SOME THOUGHTS ABOUT STARE DECISIS, 13 NACCA L.J. 19 (1954).    NOR DO
EITHER OF THE OTHER RELEVANT STRANDS OF STARE DECISIS COUNSEL
PERSUASIVELY AGAINST THE OVERRULING OF THE HARRISBURG.  CERTAINLY THE
COURTS COULD NOT PROVIDE EXPEDITIOUS RESOLUTION OF DISPUTES IF EVERY
RULE WERE FAIR GAME FOR DE NOVO RECONSIDERATION IN EVERY CASE. 
HOWEVER, THE SITUATION WE FACE IS FAR REMOVED FROM ANY SUCH CONSEQUENCE
AS THAT.  WE DO NOT REGARD THE RULE OF THE HARRISBURG AS A CLOSELY
ARGUABLE PROPOSITION-- IT RESTED ON A MOST DUBIOUS FOUNDATION WHEN
ANNOUNCED, HAS BECOME AN INCREASINGLY UNJUSTIFIABLE ANOMALY AS THE LAW
OVER THE YEARS HAS LEFT IT BEHIND, AND, IN CONJUNCTION WITH ITS
COROLLARY, THE TUNGUS, HAS PRODUCED LITIGATION-SPAWNING CONFUSION IN AN
AREA THAT SHOULD BE EASILY SUSCEPTIBLE OF MORE WORKABLE SOLUTIONS.  THE
RULE HAS HAD A LONG OPPORTUNITY TO PROVE ITS ACCEPTABILITY, AND INSTEAD
HAS SUFFERED UNIVERSAL CRITICISM AND WIDE REPUDIATION.  TO SUPPLANT THE
PRESENT DISARRAY IN THIS AREA WITH A RULE BOTH SIMPLER AND MORE JUST
WILL FURTHER, NOT IMPEDE, EFFICIENCY IN ADJUDICATION.  FINALLY, A
JUDICIOUS RECONSIDERATION OF PRECEDENT CANNOT BE AS THREATENING TO
PUBLIC FAITH IN THE JUDICIARY AS CONTINUED ADHERENCE TO A RULE
UNJUSTIFIED IN REASON, WHICH PRODUCES DIFFERENT RESULTS FOR BREACHES OF
DUTY IN SITUATIONS THAT CANNOT BE DIFFERENTIATED IN POLICY.  RESPECT
FOR THE PROCESS OF ADJUDICATION SHOULD BE ENHANCED, NOT DIMINISHED, BY
OUR RULING TODAY.  /17/

        V 

RESPONDENTS ARGUE THAT OVERRULING THE HARRISBURG WILL NECESSITATE A
LONG COURSE OF DECISIONS TO SPELL OUT THE ELEMENTS OF THE NEW "CAUSE OF
ACTION."  WE BELIEVE THESE FEARS ARE EXAGGERATED, BECAUSE OUR DECISION
DOES NOT REQUIRE THE FASHIONING OF A WHOLE NEW BODY OF FEDERAL LAW, BUT
MERELY REMOVES A BAR TO ACCESS TO THE EXISTING GENERAL MARITIME LAW. 
IN MOST RESPECTS THE LAW APPLIED IN PERSONAL-INJURY CASES WILL ANSWER
ALL QUESTIONS THAT ARISE IN DEATH CASES. 

RESPONDENTS ARGUE, FOR EXAMPLE, THAT A STATUTE OF LIMITATIONS MUST
BE DEVISED OR "BORROWED" FOR THE NEW WRONGFUL-DEATH CLAIM.  HOWEVER,
PETITIONER AND THE UNITED STATES RESPOND THAT SINCE WE HAVE SIMPLY
REMOVED THE BARRIER TO GENERAL MARITIME ACTIONS FOR FATAL INJURIES,
THERE IS NO REASON-- IN FEDERAL ADMIRALTY SUITS AT LEAST /18/  -- TUAT
SUCH ACTIONS SHOULD NOT SHARE THE DOCTRINE OF LACHES IMMEMORIALLY
APPLIED TO ADMIRALTY CLAIMS.  IN APPLYING THAT DOCTRINE, THE ARGUMENT
RUNS, THE COURTS SHOULD GIVE CONSIDERATION TO THE TWO-YEAR STATUTE OF
LIMITATIONS IN THE DEATH ON THE HIGH SEAS ACT, /19/  JUST AS THEY HAVE
ALWAYS LOOKED FOR ANALOGY TO APPROPRIATE STATE OR FOREIGN STATUTES OF
LIMITATIONS.  SEE KENNEY V. TRINIDAD CORP., 349 F.2D 832, 840 (C.A. 5TH
CIR. 1965); GILMORE & BLACK, SUPRA, AT 296 N. 149, 628.  WE NEED NOT
DECIDE THIS QUESTION NOW, BECAUSE THE PRESENT CASE WAS BROUGHT WITHIN A
FEW MONTHS OF THE ACCIDENT AND NO QUESTION OF TIMELINESS HAS BEEN
RAISED.  THE ARGUMENT DEMONSTRATES, HOWEVER, THAT THE DIFFICULTIES
SHOULD BE SLIGHT IN APPLYING ACCEPTED MARITIME LAW TO ACTIONS FOR
WRONGFUL DEATH. 

THE ONE ASPECT OF A CLAIM FOR WRONGFUL DEATH THAT HAS NO PRECISE
COUNTERPART IN THE ESTABLISHED LAW GOVERNING NONFATAL INJURIES IS THE
DETERMINATION OF THE BENEFICIARIES WHO ARE ENTITLED TO RECOVER. 
GENERAL MARITIME LAW, WHICH DENIED ANY RECOVERY FOR WRONGFUL DEATH,
FOUND NO NEED TO SPECIFY WHICH DEPENDENTS SHOULD RECEIVE SUCH
RECOVERY.  ON THIS QUESTION, PETITIONER AND THE UNITED STATES ARGUE
THAT WE MAY LOOK FOR GUIDANCE TO THE EXPRESSIONS OF CONGRESS, WHICH HAS
SPOKEN ON THIS SUBJECT IN THE DEATH ON THE HIGH SEAS ACT, /20/  THE
JONES ACT, /21/  AND THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT.  /22/  THOUGH VERY SIMILAR, EACH OF THESE PROVISIONS
DIFFERS SLIGHTLY IN THE NAMING OF DEPENDENT RELATIVES WHO MAY RECOVER
AND IN THE PRIORITY GIVEN TO THEIR CLAIMS. 

THE UNITED STATES CONTENDS THAT, OF THE THREE, THE PROVISION THAT
SHOULD BE BORROWED FOR WRONGFUL-DEATH ACTIONS UNDER GENERAL MARITIME
LAW IS THAT OF THE DEATH ON THE HIGH SEAS ACT.  IT IS THE CONGRESSIONAL
ENACTMENT THAT DEALS SPECIFICALLY AND EXCLUSIVELY WITH ACTIONS FOR
WRONGFUL DEATH, AND THAT SIMPLY PROVIDES A REMEDY-- FOR DEATHS ON THE
HIGH SEAS-- FOR BREACHES OF THE DUTIES IMPOSED BY GENERAL MARITIME
LAW.  IN CONTRAST, THE BENEFICIARY PROVISIONS OF THE JONES ACT ARE
APPLICABLE ONLY TO A SPECIFIC CLASS OF ACTIONS-- CLAIMS BY SEAMEN
AGAINST THEIR EMPLOYERS-- BASED ON VIOLATIONS OF THE SPECIAL STANDARD
OF NEGLIGENCE THAT HAS BEEN IMPOSED UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT.  THAT STANDARD APPEARS TO BE UNLIKE ANY IMPOSED BY
GENERAL MARITIME LAW.  FURTHER, ALTHOUGH THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT IS APPLICABLE TO LONGSHOREMEN SUCH AS
PETITIONER'S LATE HUSBAND, ITS PRINCIPLES OF RECOVERY ARE WHOLLY
FOREIGN TO THOSE OF GENERAL MARITIME LAW-- LIKE MOST WORKMEN'S
COMPENSATION LAWS, IT DEALS ONLY WITH THE RESPONSIBILITIES OF EMPLOYERS
FOR DEATH OR INJURY TO THEIR CMPLOYEES, AND PROVIDES STANDARDIZED
AMOUNTS OF COMPENSATION REGARDLESS OF FAULT ON THE PART OF THE
EMPLOYER. 

THE ONLY ONE OF THESE STATUTES THAT APPLIES NOT JUST TO A CLASS OF
WORKERS BUT TO ANY "PERSON," AND THAT BASES LIABILITY ON CONDUCT
VIOLATIVE OF GENERAL MARITIME LAW, IS THE DEATH ON THE HIGH SEAS ACT. 
/23/  THE BORROWING OF ITS SCHEDULE OF BENEFICIARIES, ARGUES THE UNITED
STATES, WILL NOT ONLY EFFECTUATE THE EXPRESSED CONGRESSIONAL
PREFERENCES IN THIS AREA BUT WILL ALSO PROMOTE UNIFORMITY BY ENSURING
THAT THE BENEFICIARIES WILL BE THE SAME FOR IDENTIFICAL TORTS, RATHER
THAN VARYING WITH THE EMPLOYMENT STATUS OF THE DECEDENT.  THERE IS NO
OCCASION, ACCORDING TO THIS ARGUMENT, TO BORROW FROM THE LAW OF THE
RELEVANT COASTAL STATE, SINCE THE UNDERLYING DUTIES TO BE EFFECTUATED
ARE ENTIRELY FEDERAL AND CONGRESS HAS EXPRESSED ITS PREFERENCE OF
BENEFICIARIES FOR VIOLATIONS OF MARITIME LAW. 

WE DO NOT DETERMINE THIS ISSUE NOW, FOR WE THINK ITS FINAL
RESOLUTION SHOULD AWAIT FURTHER SIFTING THROUGH THE LOWER COURTS IN
FUTURE LITIGATION.  FOR PRESENT PURPOSES WE CONCLUDE ONLY THAT ITS
EXISTENCE AFFORDS NO SUFFICIENT REASON FOR NOT COMING TO GRIPS WITH THE
HARRISBURG.  IF STILL OTHER SUBSIDIARY ISSUES SHOULD REQUIRE
RESOLUTION, SUCH AS PARTICULAR QUESTIONS OF THE MEASURE OF DAMAGES, THE
COURTS WILL NOT BE WITHOUT PERSUASIVE ANALOGY FOR GUIDANCE.  BOTH THE
DEATH ON THE HIGH SEAS ACT AND THE NUMEROUS STATE WRONGFUL-DEATH ACTS
HAVE BEEN IMPLEMENTED WITH SUCCESS FOR DECADES.  THE EXPERIENCE THUS
BUILT UP COUNSELS THAT A SUIT FOR WRONGFUL DEATH RAISES NO PROBLEMS
UNLIKE THOSE THAT HAVE LONG BEEN GRIST FOR THE JUDICIAL MILL. 

IN SUM, IN CONTRAST TO THE TORRENT OF DIFFICULT LITIGATION THAT HAS
SWIRLED ABOUT THE HARRISBURG, THE TUNGUS, WHICH FOLLOWED UPON IT, AND
THE PROBLEMS OF FEDERAL-STATE ACCOMMODATION THEY OCCASIONED, THE
RECOGNITION OF A REMEDY FOR WRONGFUL MARITIME LAW CAN BE EXPECTED TO
BRING MORE PLACID WATERS.  THAT PROSPECT INDEED MAKES FOR, AND NOT
AGAINST, THE DISCARDING OF THE HARRISBURG. 

WE ACCORDINGLY OVERRULE THE HARRISBURG, AND HOLD THAT AN ACTION DOES
LIE UNDER GENERAL MARITIME LAW FOR DEATH CAUSED BY VIOLATION OF
MARITIME DUTIES.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND
THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  RESPONDENTS ARGUE THAT PETITIONER IS FORECLOSED FROM SEEKING A
REMEDY FOR WRONGFUL DEATH UNDER GENERAL MARITIME LAW BY HER FAILURE TO
INVOKE THAT LAW AT THE PROPER TIME IN THE COURTS BELOW.  IN THE STATE
TRIAL COURT, WHICH WAS BOUND TO APPLY FEDERAL MARITIME LAW IN A CASE
WITHIN FEDERAL ADMIRALTY JURISDICTION, E.G., HESS V. UNITED STATES, 361
U.S.,AT 318; MCALLISTER V. MAGNOLIA PETROLEUM CO., 357 U.S. 221 (1958),
PETITIONER SUPPORTED HER UNSEAWORTHINESS CLAIM SOLELY BY ARGUING THAT
THE FLORIDA DEATH STATUTE ENCOMPASSED RECOVERY FOR UNSEAWORTHINESS. 
UNDER FEDERAL LAW AS DECLARED BY THE TUNGUS, THIS WAS THE ONLY THEORY
ON WHICH SHE COULD PROCEED, SHORT OF A CHALLENGE-- WHICH SHE DID NOT
MAKE-- TO THE VALIDITY OF THE TUNGUS ITSELF.  AFTER THE DISTRICT COURT
ON REMOVAL REJECTED HER CLAIM, PETITIONER PRESENTED TO THE COURT OF
APPEALS ONLY THE QUESTION OF THE INTERPRETATION OF THE STATE STATUTE,
UNTIL THAT QUESTION WAS DEFINITIVELY SETTLED AGAINST HER BY THE STATE
SUPREME COURT ON REFERRAL. 

AT THAT POINT, PETITIONER MOVED THE COURT OF APPEALS TO UPHOLD HER
CLAIM AS A MATTER OF FEDERAL LAW, DESPITE THE STATE COURT'S RULING.  IN
HER BRIEF IN SUPPORT OF THIS MOTION, PETITIONER URGED THAT THE RULE OF
THE TUNGUS WAS UNSOUND; THAT THE FLORIDA SUPREME COURT'S DECISION IN
THIS CASE WAS THE FIRST SINCE THE TUNGUS IN WHICH A STATE COURT HAD
READ ITS WRONGFUL-DEATH ACT TO EXCLUDE UNSEAWORTHINESS; AND THAT THE
LACK OF UNIFORMITY THUS PRODUCED DICTATED A RE-EXAMINATION OF THE
TUNGUS AND ADOPTION OF THE VIEWS OF THE DISSENTERS IN THAT CASE.  THE
COURT OF APPEALS HEARD ORAL ARGUMENT ON THE MOTION AND GRANTED
PETITIONER LEAVE TO FILE A FURTHER BRIEF AFTER ARGUMENT.  RESPONDENTS
OPPOSED THE MOTION AND MOVED TO AFFIRM ON THE BASIS OF THE TUNGUS,
RESPONDENT GULF ARGUING THAT:  "APPELLANT (PETITIONER) HAS NO FEDERAL
OR MARITIME ACTION FOR WRONGFUL DEATH," AND THAT:  "(THE ISSUES
DISCUSSED IN APPELLANT'S BRIEF HAVE BEEN THOROUGHLY ARGUED IN BRIEFS
HERETOFORE FILED."  NEITHER RESPONDENT OPPOSED CONSIDERATION OF THE
MOTION ON THE GROUND THAT THE ISSUE HAD NOT BEEN PROPERLY RAISED. 

THE COURT OF APPEALS AFFIRMED, STATING:  "NO USEFUL PURPOSE WILL BE
SERVED BY ADDITIONAL REVIEW OF PERTINENT AUTHORITY UPON THE ISSUE OF
LAW PRESENTED IN THIS APPEAL.  IT IS SUFFICIENT TO SAY THAT IN THE
TUNGUS V. SKOVGAARD, . . . THE UNITED STATES SUPREME COURT HELD THAT
THE QUESTION WHETHER A STATE WRONGFUL DEATH ACT ENCOMPASSES A CAUSE OF
ACTION FOR UNSEAWORTHINESS IS A QUESTION TO BE DECIDED BY THE COURTS OF
THAT STATE." 

WHILE THIS LANGUAGE IS NOT IN ITSELF WHOLLY CLEAR, WE THINK IT
EVIDENT IN THE CIRCUMSTANCES THAT THE COURT OF APPEALS CONSIDERED AND
REJECTED PETITIONER'S ATTACK ON THE TUNGUS.  AFTER GRANTING PETITIONER
AN OPPORTUNITY TO REPRESENT THAT ATTACK AT LENGTH, AND WITHOUT
RECEIVING ANY OBJECTIONS FROM RESPONDENTS TO ITS CONSIDERATION, THE
COURT OF APPEALS CANNOT BE PRESUMED TO HAVE REFUSED TO ENTERTAIN IT.
RATHER, WE READ THE OPINION AS STATING THAT THE COURT DEEMED ITSELF
BOUND BY THE TUNGUS DESPITE PETITIONER'S CHALLENGE TO THAT DECISION. 
THE COURT OF APPEALS HAD EARLIER VOICED STRONG CRITICISM OF THE
PREVAILING LAW IN THIS AREA, BUT HAD CONCLUDED THAT IT WAS BOUND TO
FOLLOW THE HARRISBURG AND THE TUNGUS.  KENNEY V. TRINIDAD CORP., 349
F.2D 832, 840-841 (C.A. 5TH CIR. 1965). 

SINCE THE COURT OF APPEALS, WITHOUT OBJECTION, TREATED THE MERITS OF
PETITIONER'S ATTACK ON THE TUNGUS, WE NEED NOT CONSIDER WHETHER SHE
MIGHT OTHERWISE BE PRECLUDED FROM PRESSING THAT ATTACK HERE BECAUSE OF
HER DEFAULT IN FAILING TO URGE THE SAME THEORY IN THE TRIAL COURTS. 
SEE NEELY V. MARTIN K. EBY CONSTR.  CO., 386 U.S. 317, 330 (1967);
GIORDENELLO V. UNITED STATES, 357 U.S. 480 (1958); CALIFORNIA V.
TAYLOR, 353 U.S. 553, 557 N. 2 (1957); HUSTY V. UNITED STATES, 282 U.S.
694, 701-702 (1931); TYRRELL V. DISTRICT OF COLUMBIA, 243 U.S. 1
(1917); CF. CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 145 (1967)
(OPINION OF HARLAN, J.).  HER CHALLENGE TO THE TUNGUS IS PROPERLY
BEFORE US ON CERTIORARI, AND, OF COURSE, IT SUBSUMES THE QUESTION OF
THE CONTINUING VALIDITY OF THE HARRISBURG, UPON WHICH THE TUNGUS
RESTS.  THIS COURT SUGGESTED, 396 U.S. 952 (1969), THAT THE PARTIES AND
THE SOLICITOR GENERAL ADDRESS THEMSELVES TO THE QUESTION WHETHER THE
HARRISBURG, 119 U.S. 199, SHOULD BE OVERRULED, AND THE PARTIES AND
AMICI HAVE FULLY ADDRESSED THEMSELVES TO THAT CASE AS WELL AS THE
TUNGUS. 

/2/  BRAME WAS DECIDED, OF COURSE, AT A TIME WHEN THE FEDERAL COURTS
UNDER SWIFT V. TYSON, 16 PET. 1 (1842), EXPOUNDED A GENERAL FEDERAL
COMMON LAW. 

/3/  THE COURT STATED: 

"THE ARGUMENT EVERYWHERE IN SUPPORT OF SUCH SUITS IN ADMIRALTY HAS
BEEN, NOT THAT THE MARITIME LAW, AS ACTUALLY ADMINISTERED IN COMMON LAW
COUNTRIES, IS DIFFERENT FROM THE COMMON LAW IN THIS PARTICULAR, BUT
THAT THE COMMON LAW IS NOT FOUNDED ON GOOD REASON, AND IS CONTRARY TO
'NATURAL EQUITY AND THE GENERAL PRINCIPLES OF LAW.'  SINCE, HOWEVER, IT
IS NOW ESTABLISHED THAT IN THE COURTS OF THE UNITED STATES NO ACTION AT
LAW CAN BE MAINTAINED FOR SUCH A WRONG IN THE ABSENCE OF A STATUTE
GIVING THE RIGHT, AND IT HAS NOT BEEN SHOWN THAT THE MARITIME LAW, AS
ACCEPTED AND RECEIVED BY MARITIME NATIONS GENERALLY, HAS ESTABLISHED A
DIFFERENT RULE FOR THE GOVERNMENT OF THE COURTS OF ADMIRALTY FROM THOSE
WHICH GOVERN COURTS OF LAW IN MATTERS OF THIS KIND, WE ARE FORCED TO
THE CONCLUSION THAT NO SUCH ACTION WILL LIE IN THE COURTS OF THE UNITED
STATES UNDER THE GENERAL MARITIME LAW."  119 U.S.,AT 213. 

/4/  THE DECISION IN S.S. AMERIKA WAS PLACED ALSO ON AN ALTERNATIVE
GROUND, WHICH IS INDEPENDENTLY SUFFICIENT.  IN THAT CASE, WHICH AROSE
FROM A COLLISION BETWEEN A ROYAL NAVY SUBMARINE AND A PRIVATE VESSEL,
THE CROWN SOUGHT TO RECOVER FROM THE OWNERS OF THE PRIVATE VESSEL THE
PENSIONS PAYABLE TO THE FAMILIES OF NAVY SAILORS WHO DIED IN THE
COLLISION.  THE FIRST GROUND GIVEN FOR REJECTING THE CLAIM WAS THAT THE
DAMAGES SOUGHT WERE TOO REMOTE TO BE PROTECTED BY TORT LAW, BECAUSE THE
PENSIONS WERE VOLUNTARY PAYMENTS AND BECAUSE THEY WERE NOT A MEASURE OF
"THE FUTURE SERVICES OF WHICH THE ADMIRALTY HAD BEEN DEPRIVED."  ID.,
AT 42, 50-51.  SIMILAR ALTERNATIVE REASONING WAS GIVEN IN BRAME, WHICH
INVOLVED A SIMILAR SITUATION.  95 U.S.,AT 758-759.  THUS, IN NEITHER
CASE WAS THE ENUNCIATION OF THE RULE AGAINST RECOVERY FOR WRONGFUL
DEATH NECESSARY TO THE RESULT.     /5/  THE COURT IN THE HARRISBURG
ACKNOWLEDGED THAT, AT LEAST ACCORDING TO THE COURTS OF FRANCE, THE
CIVIL LAW DID ALLOW RECOVERY FOR THE INJURY SUFFERED BY DEPENDENTS OF A
PERSON KILLED.  IT NOTED, HOWEVER, THAT THE LOUISIANA COURTS TOOK A
DIFFERENT VIEW OF THE CIVIL LAW, AND THAT ENGLISH MARITIME LAW DID NOT
SEEM TO DIFFER IN THIS REGARD FROM ENGLISH COMMON LAW.  119 U.S.,AT
205, 212-213.  SEE GENERALLY GRIGSBY V. COAST MARINE SERVICE, 412 F.2D
1011, 1023-1029 (C.A. 5TH CIR. 1969); 1 E. BENEDICT, LAW OF AMERICAN
ADMIRALTY 2 (6TH ED. KNAUTH 1940); 4 ID., AT 358. 

/6/  LORD WRIGHT, CONCURRING, STATED: 

"IN ONE SENSE IT IS TRUE THAT NO MONEY CAN BE COMPENSATION FOR LIFE
OR THE ENJOYMENT OF LIFE, AND IN THAT SENSE IT IS IMPOSSIBLE TO FIX
COMPENSATION FOR THE SHORTENING OF LIFE.  BUT IT IS THE BEST THE LAW
CAN DO.  IT SHOULD BE PARADOXICAL IF THE LAW REFUSED TO GIVE ANY
COMPENSATION AT ALL BECAUSE NONE COULD BE ADEQUATE."  (1937) A.C., AT
848. 

/7/  IT HAS BEEN SUGGESTED THAT ONE REASON THE COMMON-LAW RULE WAS
TOLERATED IN ENGLAND AS LONG AS IT WAS MAY HAVE BEEN THAT THE RELATIVES
OF PERSONS KILLED BY WRONGFUL ACTS OFTEN WERE ABLE TO EXACT
COMPENSATION FROM THE WRONGDOER BY THREATENING TO BRING A "CRIMINAL
APPEAL."  THE CRIMINAL APPEAL WAS A CRIMINAL PROCEEDING BROUGHT BY A
PRIVATE PERSON, AND WAS FOR MANY YEARS MORE COMMON THAN INDICTMENT AS A
MEANS OF PUNISHING HOMICIDE.  THOUGH A SUCCESSFUL APPEAL WOULD NOT
PRODUCE A MONETARY RECOVERY, THE THREAT OF ONE SERVED AS AN INFORMAL
SUBSTITUTE FOR A CIVIL SUIT FOR DAMAGES.  OVER THE YEARS, INDICTMENT
BECAME MORE COMMON, AND THE CRIMINAL APPEAL WAS ABOLISHED BY STATUTE IN
1819.  59 GEO. 3, C. 46.  SEE HOLDSWORTH, THE ORIGIN OF THE RULE IN
BAKER V. BOLTON, 32 L.Q.REV.  431, 435 (1916); ADMIRALTY COMMISSIONERS
V. S.S. AMERIKA, (1917) A.C., AT 58-59. 

/8/  SEE ALSO NATIONAL PARKS ACT, 16 U.S.C. 457; OUTER CONTINENTAL
SHELF LANDS ACT, 43 U.S.C. 1331-1343 (MAKING STATE WRONGFUL-DEATH
STATUTES APPLICABLE TO PARTICULAR AREAS WITHIN FEDERAL JURISDICTION). 
CF. N. 16, INFRA. 

/9/  THE ROCK CASE INVOLVED THE QUESTION WHETHER AN ACTION FOR
WRONGFUL DEATH WAS MAINTAINABLE IN THE PANAMA CANAL ZONE, UNDER A
GENERAL STATUTE THAT SIMPLY EMBODIED THE CIVIL-LAW PRINCIPLE OF
LIABILITY FOR DAMAGE CAUSED BY FAULT.  THE MAJORITY'S DECISION,
ENGRAFTING ONTO THIS STATUTE THE COMMON-LAW RULE FORBIDDING SUCH
RECOVERY DESPITE THE FACT THAT THE RULE HAD THEN BEEN REJECTED BY EVERY
RELEVANT JURISDICTION, WAS IMMEDIATELY REPUDIATED BY CONGRESSIONAL
ACTION.  ACT OF DEC. 29, 1926, SEC. 7, 44 STAT. 927; SEE LANDIS, SUPRA,
AT 227. 

/10/  THE GENERAL UNDERSTANDING WAS THAT THE STATUTES OF THE COASTAL
STATES, WHICH PROVIDED REMEDIES FOR DEATHS WITHIN TERRITORIAL WATERS,
DID NOT APPLY BEYOND STATE BOUNDARIES.  THIS COURT HAD SUGGESTED, IN AN
EARLY CASE WHERE THE PLAINTIFF AND DEFENDANT WERE OF THE SAME STATE,
THAT THE LAW OF THAT STATE COULD BE APPLIED TO A DEATH ON THE HIGH
SEAS, IF THE STATE INTENDED ITS LAW TO HAVE SUCH SCOPE.  THE HAMILTON,
207 U.S. 398 (1907).  HOWEVER, PROBABLY BECAUSE MOST STATE DEATH
STATUTES WERE NOT MEANT TO HAVE APPLICATION TO THE HIGH SEAS, THIS
POSSIBILITY DID LITTLE TO FILL THE VACUUM. 

/11/  IN 1927 CONGRESS PASSED THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, 44 STAT. 1424, 33 U.S.C. 901 ET SEQ., GRANTING TO
LONGSHOREMEN THE RIGHT TO RECEIVE WORKMEN'S COMPENSATION BENEFITS FROM
THEIR EMPLOYERS FOR ACCIDENTAL INJURY OR DEATH ARISING OUT OF THEIR
EMPLOYMENT.  THESE BENEFITS ARE MADE EXCLUSIVE OF ANY OTHER LIABILITY
FOR EMPLOYERS WHO COMPLY WITH THE ACT.  THE ACT DOES NOT, HOWEVER,
AFFECT THE LONGSHOREMAN'S REMEDIES AGAINST PERSONS OTHER THAN HIS
EMPLOYER, SUCH AS A SHIPOWNER, AND THEREFORE DOES NOT BEAR ON THE
PROBLEM BEFORE US EXCEPT PERHAPS TO SERVE AS YET ANOTHER EXAMPLE OF
CONGRESSIONAL ACTION TO ALLOW RECOVERY FOR DEATH IN CIRCUMSTANCES WHERE
RECOVERY IS ALLOWED FOR NONFATAL INJURIES. 

/12/  A JOINT CONTRIBUTOR TO THIS LAST SITUATION, IN CONJUNCTION
WITH THE RULE OF THE HARRISBURG, IS THE DECISION IN GILLESPIE V. UNITED
STATES STEEL CORP., 379 U.S. 148 (1964), WHERE THE COURT HELD THAT THE
JONES ACT, BY PROVIDING A CLAIM FOR WRONGFUL DEATH BASED ON NEGLIGENCE,
PRECLUDES ANY STATE REMEDY FOR WRONGFUL DEATH OF A SEAMAN IN
TERRITORIAL WATERS-- WHETHER BASED ON NEGLIGENCE OR UNSEAWORTHINESS. 
THE COURT'S RULING IN GILLESPIE WAS ONLY THAT THE JONES ACT, WHICH WAS
"INTENDED TO BRING ABOUT THE UNIFORMITY IN THE EXERCISE OF ADMIRALTY
JURISDICTION REQUIRED BY THE CONSTITUTION, . . . NECESSARILY SUPERSEDES
THE APPLICATION OF THE DEATH STATUTES OF THE SEVERAL STATES."  ID., AT
155.  THE RULING THUS DOES NOT DISTURB THE SEAMAN'S RIGHTS UNDER
GENERAL MARITIME LAW, EXISTING ALONGSIDE HIS JONES ACT CLAIM, TO SUE
HIS EMPLOYER FOR INJURIES CAUSED BY UNSEAWORTHINESS, SEE MCALLISTER V.
MAGNOLIA PETROLUEM CO., 357 U.S. 221 (1958), OR FOR DEATH ON THE HIGH
SEAS CAUSED BY UNSEAWORTHINESS, SEE KERNAN V. AMERICAN DREDGING CO.,
355 U.S. 426, 430 N. 4 (1958); DOYLE V. ALBATROSS TANKER CORP., 367
F.2D 465 (C.A. 2D CIR. 1966); CF. POPE & TALBOT, INC. V. HAWN, 346 U.S.
406 (1953).  LIKEWISE, THE REMEDY UNDER GENERAL MARITIME LAW THAT WILL
BE MADE AVAILABLE BY OUR OVERRULING TODAY OF THE HARRISBURG SEEMS TO BE
BEYOND THE PRECLUSIVE EFFECT OF THE JONES ACT AS INTERPRETED IN
GILLESPIE.  THE EXISTENCE OF A MARITIME REMEDY FOR DEATHS OF SEAMEN IN
TERRITORIAL WATERS WILL FURTHER, RATHER THAN HINDER, "UNIFORMITY IN THE
EXERCISE OF ADMIRALTY JURISDICTION"; AND, OF COURSE, NO QUESTION OF
PRECLUSION OF A FEDERAL REMEDY WAS BEFORE THE COURT IN GILLESPIE OR ITS
PREDECESSOR, LINDGREN V. UNITED STATES, 281 U.S. 38 (1930), SINCE NO
SUCH REMEDY WAS THOUGHT TO EXIST AT THE TIME THOSE CASES WERE DECIDED. 
SEE GILMORE & BLACK, SUPRA, AT 304; BUT CF. KERNAN V. AMERICAN DREDGING
CO., 355 U.S.,AT 429-430. 

/13/  SIMILARLY, WHEN PARLIAMENT ABROGATED THE ENGLISH COMMON-LAW
RULE BY PASSING LORD CAMPBELL'S ACT, IT PROVIDED THAT "NOTHING THEREIN
CONTAINED SHALL APPLY TO THAT PART OF THE UNITED KINGDOM CALLED
SCOTLAND."  9 & 10 VICT., C. 93, SEC. 6 (1846).  THE DECISIONAL LAW OF
SCOTLAND HAD LONG RECOGNIZED A RIGHT TO RECOVER FOR WRONGFUL DEATH;
THUS THE MISCHIEF AT WHICH THE STATUTE AIMED COULD BE CURED WITHOUT
DISTURBING SCOTTISH LAW.  THE ACT "EXCLUDED SCOTLAND FROM ITS OPERATION
BECAUSE A SUFFICIENT REMEDY ALREADY EXISTED THERE WHEN IN ENGLAND NONE
EXISTED AT ALL."  ADMIRALTY COMMISSIONERS V. S.S. AMERIKA, (1917) A.C.,
AT 52. 

/14/  WE NOTE THAT SEC. 1 OF THE ACT, WHICH AUTHORIZES "A SUIT FOR
DAMAGES IN THE DISTRICT COURTS OF THE UNITED STATES, IN ADMIRALTY," HAS
BEEN CONSTRUED TO PLACE EXCLUSIVE JURISDICTION ON THE ADMIRALTY SIDE OF
THE FEDERAL COURTS FOR SUITS UNDER THE ACT, E.G., DEVLIN V. FLYING
TIGER LINES, INC., 220 F.SUPP.  924 (D.C.S.D.N.Y. 1963), ALTHOUGH THERE
WAS EARLIER AUTHORITY TO THE CONTRARY.  BUGDEN V. TRAWLER CAMBRIDGE,
319 MASS. 315, 65 N.E.2D 533 (1946).  IF WE FOUND FROM THE LEGISLATIVE
HISTORY THAT CONGRESS IMPOSED EXCLUSIVE JURISDICTION BECAUSE OF A
DESIRE TO AVOID THE PRESENTATION OF WRONGFUL-DEATH CLAIMS TO JURIES,
THAT MIGHT SUPPORT AN INFERENCE THAT CONGRESS MEANT TO FORBID
NONSTATUTORY MARITIME ACTIONS FOR WRONGFUL DEATH, WHICH MIGHT COME
BEFORE STATE OR FEDERAL JURIES.  CF. FITZGERALD V. UNITED STATES LINES,
374 U.S. 16 (1963).  HOWEVER, THAT IS NOT THE CASE.  THE ONLY
DISCUSSION OF EXCLUSIVE JURISDICTION IN THE LEGISLATIVE HISTORY IS
FOUND IN THE HOUSE FLOOR DEBATES, DURING THE COURSE OF WHICH
REPRESENTATIVE VOLSTEAD, FLOOR MANAGER OF THE BILL AND CHAIRMAN OF THE
JUDICIARY COMMITTEE, TOLD THE MEMBERS THAT EXCLUSIVE JURISDICTION WOULD
FOLLOW NECESSARILY FROM THE FACT THAT THE ACT WOULD BE PART OF THE
FEDERAL MARITIME LAW.  59 CONG.REC.  4485.  THIS ERRONEOUS VIEW
DISREGARDS THE "SAVING CLAUSE" IN 28 U.S.C. 1333, AND THE FACT THAT
FEDERAL MARITIME LAW IS APPLICABLE TO SUITS BROUGHT IN STATE COURTS
UNDER THE PERMISSION OF THAT CLAUSE.  SEE N. 1, SUPRA.  WHEN ASKED
WHETHER IT WAS TRUE THAT JURY TRIALS WOULD NEVER BE AVAILABLE IN SUITS
UNDER THE ACT, REPRESENTATIVE VOLSTEAD REPLIED:  "I DO NOT THINK SO.
PERHAPS, FOR CERTAIN PURPOSES, UNDER THE PRACTICE THAT PREVAILS, THEY
MAY HAVE A JURY, BUT ORDINARILY A JURY IS NOT ALLOWED.  HOWEVER, I DO
NOT KNOW MUCH ABOUT ADMIRALTY PRACTICE."  59 CONG.REC.  4485.  FROM
THIS WE CAN DERIVE NO EXPRESSION OF POLICY BEARING ON THE MATTER UNDER
DISCUSSION. 

/15/  THE INCONGRUITY OF FORCING THE STATES TO PROVIDE THE SOLE
REMEDY TO EFFECTUATE DUTIES THAT HAVE NO BASIS IN STATE POLICY IS
HIGHLIGHTED IN THIS CASE.  THE FLORIDA SUPREME COURT RULED THAT THE
STATE WRONGFUL-DEATH ACT WAS CONCERNED ONLY WITH "TRADITIONAL COMMON
LAW CONCEPTS," AND NOT WITH "CONCEPTS PECULIAR TO MARITIME LAW SUCH AS
'UNSEAWORTHINESS' AND THE COMPARATIVE NEGLIGENCE RULE."  IT FOUND NO
REASON TO BELIEVE THAT THE FLORIDA LEGISLATURE INTENDED TO COVER, OR
EVEN CONSIDERED, THE "COMPLETELY FOREIGN" MARITIME DUTY OF
SEAWORTHINESS.  211 SO.2D, AT 164, 166.  FEDERAL LAW, RATHER THAN
STATE, IS THE MORE APPROPRIATE SOURCE OF A REMEDY FOR VIOLATION OF THE
FEDERALLY IMPOSED DUTIES OF MARITIME LAW.  CF. HILL, THE LAW-MAKING
POWER OF THE FEDERAL COURTS:  CONSTITUTIONAL PREEMPTION, 67 COL.L.REV. 
1024 (1967); NOTE, THE FEDERAL COMMON LAW, 82 HARV.L.REV.  1512, 1523
1526 (1969). 

IT IS WORTH NOTING THAT THIS PROBLEM OF LACK OF CONGRUENCE BETWEEN
MARITIME DUTIES AND STATE REMEDIES WAS NOT PRESENTED IN THE
HARRISBURG.  THE PROBLEM THERE WAS THAT THE RELEVANT STATE STATUTES OF
LIMITATIONS HAD RUN, AND PETITIONER SOUGHT A FEDERAL REMEDY TO WHICH
THEY WOULD NOT BE APPLICABLE.  THE COURT DID NOT DISCUSS THE STANDARDS
OF BEHAVIOR COMPREHENDED BY THE STATE LAW OR BY MARITIME LAW, AND
NOTHING INDICATES THAT THE STATE LAW WAS NOT WHOLLY ADEQUATE TO
VINDICATE SUBSTANTIVE MARITIME POLICIES IN A SUIT BROUGHT WITHIN THE
STATE-PRESCRIBED PERIOD.  CF. MCALLISTER V. MAGNOLIA PETROLEUM CO., 357
U.S. 221 (1958). 

/16/  RESPONDENTS PURPORT TO FIND SUCH A PRECLUSIVE INTENT IN TWO
OTHER FEDERAL STATUTES IN RELATED AREAS, THE NATIONAL PARKS ACT, 16
U.S.C. 457, AND THE OUTER CONTINENTAL SHELF LANDS ACT, 43 U.S.C. 1331
1343.  THE FORMER PROVIDES: "IN THE CASE OF THE DEATH OF ANY PERSON BY
THE NEGLECT OR WRONGFUL ACT OF ANOTHER WITHIN A NATIONAL PARK OR OTHER
PLACE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES,
WITHIN THE EXTERIOR BOUNDARIES OF ANY STATE, SUCH RIGHT OF ACTION SHALL
EXIST AS THOUGH THE PLACE WERE UNDER THE JURISDICTION OF THE STATE
WITHIN WHOSE EXTERIOR BOUNDARIES SUCH PLACE MAY BE . . . ."  ALTHOUGH
JUDGE LEARNED HAND ONCE SUGGESTED THAT THIS STATUTE APPLIED TO
ADMIRALTY, PULEO V. H. E. MOSS & CO., 159 F.2D 842, 845 (1947), HE
QUICKLY RECONSIDERED, GUERRINI V. UNITED STATES, 167 F.2D 352, 355
(1948), AND IT NOW SEEMS CLEAR THAT IT DOES NOT.  SEE THE TUNGUS V.
SKOVGAARD, 358 U.S.,AT 609 N. 9 (SEPARATE OPINION OF BRENNAN, J.); CF.
RODRIGUE V. AETNA CAS. & SUR.  CO., 395 U.S. 352 (1969).  THE
CONGRESSIONAL DECISION TO PLACE UNDER STATE LAWS SUCH AREAS AS NATIONAL
PARKS,WHICH ARE CARVED FROM EXISTING STATE TERRITORIES AND ARE SUBJECT
TO NO OTHER GENERAL BODY OF LAW, CARRIES NO IMPLICATION OF A SIMILAR
INTENT IN THE VASTLY DIFFERENT REALM OF ADMIRALTY. 

THE LATTER STATUTE WAS BEFORE THIS COURT IN RODRIQUE V. AETNA CAS. &
SUR.  CO., SUPRA.  WE THERE DETERMINED THAT THE ACT WAS INTENDED TO
TREAT ARTIFICIAL ISLANDS, LOCATED BEYOND THE THREE-MILE LIMIT, NOT AS
VESSELS UPON THE HIGH SEAS, BUT "AS THOUGH THEY WERE FEDERAL ENCLAVES
IN AN UPLAND STATE."  BECAUSE THE ACT "DELIBERATELY ESCHEWED THE
APPLICATION OF ADMIRALTY PRINCIPLES TO THESE NOVEL STRUCTURES," ID., AT
355, THEY WERE HELD SUBJECT TO THE SUBSTANTIVE STANDARDS OF STATE LAW
EXCEPT WHEN AN INCONSISTENT FEDERAL LAW APPLIED.  THIS SPECIAL
DISPENSATION FOR A MODERN PROBLEM TO WHICH MARITIME LAW WAS THOUGHT
"INAPPOSITE," ID., AT 363, HAS NO ANALOGUE IN THIS CASE.  IT IS
UNDISPUTED THAT THE DUTIES OWED BY RESPONDENTS TO PETITIONER'S HUSBAND
WERE DETERMINED BY MARITIME LAW, AND WERE THE SAME WITHIN AS WITHOUT
THE THREE-MILE LIMIT. 

/17/  RESPONDENTS POINT OUT THAT A BILL HAS BEEN INTRODUCED IN THE
UNITED STATES SENATE, BY REQUEST, WHICH WOULD, AMONG OTHER THINGS,
EXTEND THE DEATH ON THE HIGH SEAS ACT TO INCLUDE DEATHS IN STATE
TERRITORIAL WATERS.  S. 3143, 91ST CONG., 1ST SESS.  TO DATE NO
HEARINGS HAVE BEEN SCHEDULED OR OTHER ACTION TAKEN ON THE BILL.  THE
MERE POSSIBILITY OF FUTURE LEGISLATION IN THIS FIELD DOES NOT, OF
COURSE, EFFECT THE LEGAL MERITS OF PETITIONER'S CLAIM THAT THE RULE OF
THE HARRISBURG IS NO LONGER A VALID PART OF MARITIME LAW.  SEE UNITED
STATES V. W. M. WEBB, INC., 397 U.S. 179, 194 N. 21 (1970). 

NOR DO WE THINK THAT CONGRESS' FAILURE TO TAKE ACTION ON THE PENDING
BILL, OR TO PASS A SIMILAR MEASURE OVER THE YEARS AS THE LAW OF DEATHS
ON TERRITORIAL WATERS BECAME MORE INCONGRUOUS, PROVIDES GUIDANCE FOR
THE COURSE WE SHOULD TAKE IN THIS CASE.  TO CONCLUDE THAT CONGRESS, BY
NOT LEGISLATING ON THIS SUBJECT, HAS IN EFFECT FORECLOSED, BY NEGATIVE
LEGISLATION AS IT WERE, RECONSIDERATION OF PRIOR JUDICIAL DOCTRINE
WOULD BE TO DISREGARD THE FACT THAT "CONGRESS HAS LARGELY LEFT TO THIS
COURT THE RESPONSIBILITY FOR FASHIONING THE CONTROLLING RULES OF
ADMIRALTY LAW."  FITZGERALD V. UNITED STATES LINES CO., 374 U.S. 16, 20
(1963). 

/18/  SEE MCALLISTER V. MAGNOLIA PETROLEUM CO., 357 U.S. 221, 224
(1958). 

/19/  46 U.S.C. 763.     /20/  46 U.S.C. 761, 762. 

/21/  45 U.S.C. 51; SEE 46 U.S.C. 688. 

/22/  33 U.S.C. 909.  SEE N. 11, SUPRA. 

/23/  46 U.S.C. 761. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

CHARLES J. HARDEE, JR., ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

DEWEY R. VILLAREAL, JR., ARGUED THE CAUSE FOR RESPONDENT STATES
MARINE LINES, INC. WITH HIM ON THE BRIEF WERE JOHN W. BOULT AND WILLIAM
A. GILLEN.  DAVID C. G. KERR ARGUED THE CAUSE FOR RESPONDENT GULF
FLORIDA TERMINAL CO. ON THE BRIEF WERE GEORGE W. ERICKSEN AND JAMES B.
MCDONOUGH, JR. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS, JOSEPH J. CONNOLLY,
AND ALAN S. ROSENTHAL. 

BRIEFS OF AMICI CURIAE WERE FILED BY DAVID B. KAPLAN FOR THE
AMERICAN TRIAL LAWYERS ASSOCIATION, AND BY NATHAN BAKER, PRO SE.
..END :
























MULLOY V. UNITED STATES, 398 U.S. 410 


       MULLOY V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 655.  ARGUED APRIL 20, 1970-- DECIDED JUNE 15, 1970. 


PETITIONER, WHO HAD BEEN CLASSIFIED I-A, APPLIED TO HIS LOCAL
SELECTIVE SERVICE BOARD FOR A I-O CLASSIFICATION AS A CONSCIENTIOUS
OBJECTOR, FILING THE APPROPRIATE FORM WITH DETAILED ANSWERS.  LETTERS
WERE SUBMITTED BY FIVE PERSONS ATTESTING TO THE SINCERITY OF
PETITIONER'S BELIEF.  AT PETITIONER'S REQUEST, THE BOARD GRANTED HIM A
PERSONAL APPEARANCE.  HE WAS NOTIFIED THAT THE CLASSIFICATION HAD NOT
BEEN REOPENED AND THAT THE INTERVIEW WAS A MATTER OF COURTESY.  UNDER
SELECTIVE SERVICE REGULATIONS REOPENING WOULD HAVE ENTITLED PETITIONER
TO AN ADMINISTRATIVE APPEAL FROM THE REJECTION OF HIS CONSCIENTIOUS
OBJECTOR CLAIM.  PETITIONER THEN REFUSED TO SUBMIT TO INDUCTION AND WAS
TRIED AND CONVICTED FOR VIOLATING 50 U.S.C. APP. 462(A).  HELD:  WHERE
A REGISTRANT MAKES NONFRIVOLOUS ALLEGATIONS OF FACTS NOT PREVIOUSLY
CONSIDERED BY HIS BOARD, THAT, IF TRUE, WOULD BE SUFFICIENT UNDER THE
REGULATIONS TO WARRANT GRANTING A RECLASSIFICATION, THE BOARD MUST
REOPEN THE CLASSIFICATION, UNLESS THE TRUTH OF THE NEW ALLEGATIONS IS
CONCLUSIVELY REFUTED BY OTHER RELIABLE INFORMATION IN REGISTRANT'S
FILE, THUS AFFORDING THE REGISTRANT AN ADMINISTRATIVE APPEAL FROM AN
ADVERSE DETERMINATION ON THE MERITS.  PP. 415-418. 

412 F.2D 421, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

FOLLOWING A JURY TRIAL IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY, THE PETITIONER WAS CONVICTED FOR REFUSING
TO SUBMIT TO INDUCTION INTO THE ARMED FORCES IN VIOLATION OF SEC. 12(A)
OF THE MILITARY SELECTIVE SERVICE ACT OF 1967, 62 STAT. 622, AS
AMENDED, 50 U.S.C. APP. 462(A) (1964 ED., SUPP. IV).  HE WAS SENTENCED
TO FIVE YEARS' IMPRISONMENT AND FINED $10,000, AND HIS CONVICTION WAS
AFFIRMED BY THE COURT OF APPEALS FOR THE SIXTH CIRCUIT.  412 F.2D 421. 
WE GRANTED CERTIORARI, 396 U.S. 1036, TO CONSIDER THE PETITIONER'S
CONTENTION, RAISED BOTH IN THE TRIAL COURT AND IN THE COURT OF APPEALS,
THAT THE ORDER TO REPORT WAS INVALID BECAUSE HIS LOCAL BOARD HAD
REFUSED TO REOPEN HIS I-A CLASSIFICATION FOLLOWING HIS APPLICATION FOR
A I-O CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR.  THE ARGUMENT IS THAT
IT WAS AN ABUSE OF DISCRETION FOR THE BOARD TO REJECT HIS CONSCIENTIOUS
OBJECTOR CLAIM WITHOUT REOPENING HIS CLASSIFICATION, AND BY SO DOING TO
DEPRIVE HIM OF HIS RIGHT TO AN ADMINISTRATIVE APPEAL. 

        I 

ON OCTOBER 17, 1967, THE PETITIONER, WHO WAS THEN 23 YEARS OLD AND
CLASSIFIED I-A (AVAILABLE FOR MILITARY SERVICE), WROTE TO HIS LOCAL
SELECTIVE SERVICE BOARD THAT "(AFTER MUCH, MUCH THINKING, SEEKING, AND
QUESTIONING OF MY OWN RELIGIOUS UPBRINGING AND POLITICAL EXPERIENCE I
HAVE CONCLUDED THAT I AM A CONSCIENTIOUS OBJECTOR.  I AM THEREFORE
OPPOSED TO WAR IN ANY FORM."  IN RESPONSE TO THIS LETTER THE CLERK SENT
HIM THE SPECIAL FORM FOR CONSCIENTIOUS OBJECTORS (SSS FORM 150), WHICH
HE PROMPTLY COMPLETED AND RETURNED.  /1/ 

THE PETITIONER STATED IN THE FORM THAT HE WAS CONSCIENTIOUSLY
OPPOSED BY REASON OF HIS RELIGIOUS TRAINING AND BELIEF TO PARTICIPATION
IN WAR IN ANY FORM.  HE SAID THAT HE BELIEVED IN A SUPREME BEING AND
THAT THIS BELIEF INVOLVED DUTIES SUPERIOR TO THOSE ARISING FROM ANY
HUMAN RELATION; THAT HIS RELIGIOUS TRAINING HAD TAUGHT HIM THAT IT WAS
AGAINST GOD'S LAW TO KILL; AND THAT AS A MEMBER OF THE ARMED SERVICES
HE WOULD BE OBLIGED TO KILL OR INDIRECTLY ASSIST IN KILLING.  IN
RESPONSE TO THE FORM'S INQUIRY AS TO HOW, WHEN, AND FROM WHAT SOURCE HE
HAD RECEIVED THE TRAINING AND ACQUIRED THE BELIEF UPON WHICH HIS
CONSCIENTIOUS OBJECTION WAS BASED, HE GAVE A DETAILED ANSWER,
EXPLAINING THAT HE HAD BEEN BORN AND RAISED A CATHOLIC; THAT HE HAD AT
ONE POINT IN HIS LIFE THOUGHT HE WOULD BECOME A PRIEST; THAT HE HAD
GONE THROUGH A RELIGIOUS CRISIS IN COLLEGE AND LEFT THE CHURCH, BUT HAD
RETURNED TO IT AND BEEN GREATLY INFLUENCED BY THE WRITINGS OF THOMAS
MERTON, WHO HAD PREACHED NONVIOLENCE.  HE SAID THAT HE HAD LEARNED IN
THE WORK HE HAD BEEN DOING WITH AN ANTIPOVERTY ORGANIZATION IN
APPALACHIA OF THE NEED FOR LOVE AND UNDERSTANDING AMONG PEOPLE, AND OF
THE FUTILITY OF VIOLENCE.  HE CONCLUDED THAT HIS EARLY TRAINING,
COUPLED WITH HIS ADULT EXPERIENCE, PARTICULARLY AS A WORKER AMONG THE
APPALACHIAN POOR, HAD BROUGHT HIM TO HIS PRESENT POSITION AS A
CONSCIENTIOUS OBJECTOR. 

THE PETITIONER ALSO GAVE DETAILED AND SPECIFIC ANSWERS TO OTHER
QUESTIONS THAT THE FORM ASKED, SUCH AS WHEN AND WHERE HE HAD GIVEN
PUBLIC EXPRESSION TO THE VIEWS EXPRESSED AS THE BASIS FOR HIS
CONSCIENTIOUS OBJECTOR CLAIM, AND WHAT ACTIONS OR BEHAVIOR HE THOUGHT
MOST CONSPICUOUSLY DEMONSTRATED THE CONSISTENCY AND DEPTH OF HIS
RELIGIOUS CONVICTIONS.  FIVE PEOPLE WHO WERE WELL ACQUAINTED WITH THE
PETITIONER WROTE TO THE BOARD, ATTESTING TO THE SINCERITY OF HIS
BELIEFS.  ONE LETTER WAS FROM A CATHOLIC PRIEST,WHO WROTE OF THE
PETITIONER'S HONESTY AND INTEGRITY AND SAID THAT HE FELT MILITARY
SERVICE WOULD DO VIOLENCE TO THE PETITIONER'S CONSCIENCE.  OTHER
LETTERS FROM PEOPLE WHO HAD WORKED WITH THE PETITIONER SPOKE OF HIS
BELIEF IN NONVIOLENCE AND CONFIRMED THE ACCURACY OF THE INCIDENTS THAT
THE PETITIONER HAD REFERRED TO IN THE FORM AS MANIFESTATIONS OF HIS
BELIEFS.  THE PETITIONER'S BROTHER WROTE THAT WHILE HE VEHEMENTLY
DISAGREED WITH THE PETITIONER'S UNWILLINGNESS TO BEAR ARMS FOR HIS
COUNTRY, HE STILL FELT THAT THE PETITIONER WAS SINCERE IN HIS BELIEFS. 

IN RESPONSE TO THE PETITIONER'S REQUEST TO DISCUSS HIS APPLICATION
WITH THE BOARD, THE CLERK WROTE THAT THE BOARD HAD DECIDED TO GRANT HIM
A PERSONAL EXPERIENCE.  THIS INTERVIEW TOOK PLACE ON NOVEMBER 9 AND
LASTED ABOUT 10 OR 15 MINUTES.  IT WAS ATTENDED BY THREE OF THE FOUR
LOCAL BOARD MEMBERS.  THE RESUME OF THE INTERVIEW PREPARED BY THE CLERK
STATED THAT THE PETITIONER "ADVISED THAT HE WAS CLAIMING A C.O.
CLASSIFICATION BECAUSE HE HAD LEARNED THROUGH EXPERIENCE AND DID NOT
UNTIL LATER IN LIFE REALIZE THE IMPORTANCE OF NOW BELIEVING AS HE DID,"
AND THAT HE "FELT THAT MILITARY SERVICE WOULD INTERRUPT HIS WORK AND
THERE WOULD BE NO ONE ELSE TO TAKE HIS PLACE."  THE MINUTE ENTRY IN THE
PETITIONER'S FILE INDICATED THAT ALL MEMBERS PRESENT FELT THE
INFORMATION IN THE FORM, AND ACCOMPANYING LETTERS, TOGETHER WITH WHAT
WAS LEARNED AT THE INTERVIEW, DID NOT WARRANT REOPENING OF THE
PETITIONER'S I-A CLASSIFICATION.  HOWEVER, NO FORMAL VOTE ON THE
PETITIONER'S APPLICATION WAS TAKEN UNTIL JANUARY 11, 1968, AT WHICH
TIME, THE MINUTE ENTRY INDICATED, ALL FOUR MEMBERS WERE PRESENT AND
AGAIN IT WAS NOTED THAT ALL "FELT THIS INFORMATION DID NOT WARRANT
REOPENING" OF THE I-A CLASSIFICATION.  AFTER RECEIVING NOTIFICATION OF
THE BOARD'S ACTION, THE PETITIONER WROTE TO THE BOARD ON JANUARY 21
SEEKING TO APPEAL ITS FAILURE TO RECLASSIFY HIM I-O.  HE SAID THAT HE
CONSIDERED THE NOVEMBER INTERVIEW TO HAVE BEEN A REOPENING OF HIS
CASE.  ON JANUARY 23 THE BOARD REPLIED THAT THE INTERVIEW HAD BEEN
EXTENDED AS A MATTER OF COURTESY, AND THAT IT HAD NOT AT ANY TIME
REOPENED THE PETITIONER'S CLASSIFICATION.  ON THE SAME DAY THE
PETITIONER WAS ORDERED TO REPORT FOR INDUCTION ON FEBRUARY 23, 1968. 
THE PETITIONER REPORTED, BUT REFUSED TO SUBMIT TO INDUCTION.  THIS
REFUSAL RESULTED IN THE CRIMINAL CHARGE THAT LED TO HIS CONVICTION
UNDER 50 U.S.C. APP. 462(A) (1964 ED., SUPP. IV). 

        II 

UNDER THE SELECTIVE SERVICE REGULATIONS A "LOCAL BOARD MAY REOPEN
AND CONSIDER ANEW THE CLASSIFICATION OF A REGISTRANT . . . (IF
PRESENTED WITH) FACTS NOT CONSIDERED WHEN THE REGISTRANT WAS CLASSIFIED
WHICH, IF TRUE, WOULD JUSTIFY A CHANGE IN THE REGISTRANT'S
CLASSIFICATION . . . ."  32 CFR 1625.2.  /2/  EVEN IF THE LOCAL BOARD
DENIES THE REQUESTED RECLASSIFICATION, THERE IS A CRUCIAL DIFFERENCE
BETWEEN SUCH BOARD ACTION AND A SIMPLE REFUSAL TO REOPEN THE
CLASSIFICATION AT ALL.  FOR ONCE THE THE LOCAL BOARD REOPENS, IT IS
REQUIRED BY THE REGULATIONS TO "CONSIDER THE NEW INFORMATION WHICH IT
HAS RECEIVED (AND TO) AGAIN CLASSIFY THE REGISTRANT IN THE SAME MANNER
AS IF HE HAD NEVER BEFORE BEEN CLASSIFIED."  32 CFR 1625.11.  A
CLASSIFICATION FOLLOWING A REOPENING IS THUS IN ALL RESPECTS A NEW AND
ORIGINAL ONE AND, EVEN IF THE REGISTRANT IS PLACED IN THE SAME
CLASSIFICATION AS BEFORE, "(EACH SUCH CLASSIFICATION (FOLLOWING THE
REOPENING) SHALL BE FOLLOWED BY THE SAME RIGHT OF APPEARANCE BEFORE THE
LOCAL BOARD AND . . . OF APPEAL AS IN THE CASE OF AN ORIGINAL
CLASSIFICATION."  32 CFR 1625.13.  WHERE, HOWEVER, IN THE OPINION OF
THE BOARD, NO NEW FACTS ARE PRESENTED OR "SUCH FACTS, IF TRUE, WOULD
NOT JUSTIFY A CHANGE IN SUCH REGISTRANT'S CLASSIFICATION . . . ," 32
CFR 1625.4, THE BOARD NEED NOT REOPEN, AND FOLLOWING SUCH A REFUSAL TO
REOPEN, THE REGISTRANT HAS NO RIGHT TO A PERSONAL APPEARANCE OR TO AN
APPEAL.  THUS, WHETHER OR NOT A REOPENING IS GRANTED IS A MATTER OF
SUBSTANCE, FOR WITH A REOPENING COMES THE RIGHT TO BE HEARD PERSONALLY
AND TO APPEAL.  WHILE THE PETITIONER HERE WAS GIVEN AN INTERVIEW AS A
MATTER OF COURTESY, THE BOARD'S REFUSAL TO REOPEN HIS CLASSIFICATION
DENIED HIM THE OPPORTUNITY FOR AN ADMINISTRATIVE APPEAL FROM THE
REJECTION OF HIS CONSCIENTIOUS OBJECTOR CLAIM.  THEREFORE, IF THE
REFUSAL TO REOPEN WAS IMPROPER, PETITIONER WAS WRONGLY DEPRIVED OF AN
ESSENTIAL PROCEDURAL RIGHT, AND THE ORDER TO REPORT FOR INDUCTION WAS
INVALID. 

 III 

THOUGH THE LANGUAGE OF 32 CFR 1625.2 IS PERMISSIVE, IT DOES NOT
FOLLOW THAT A BOARD MAY ARBITRARILY REFUSE TO REOPEN A REGISTRANT'S
CLASSIFICATION.  WHILE DIFFEREING SOMEWHAT IN THEIR FORMULATION OF
PRECISELY JUST WHAT SHOWING MUST BE MADE BEFORE A BOARD IS REQUIRED TO
REOPEN, THE COURTS OF APPEALS IN VIRTUALLY ALL FEDERAL CIRCUITS HAVE
HELD THAT WHERE THE REGISTRANT HAS SET OUT NEW FACTS THAT ESTABLISH A
PRIMA FACIE CASE FOR A NEW CLASSIFICATION, A BOARD MUST REOPEN TO
DETERMINE WHETHER HE IS ENTITLED TO THAT CLASSIFICATION.  /3/  NOT TO
DO SO, THESE COURTS HAVE HELD, IS AN ABUSE OF DISCRETION, AND WE
AGREE. 

WHERE A REGISTRANT MAKES NONFRIVOLOUS ALLEGATIONS OF FACTS THAT HAVE
NOT BEEN PREVIOUSLY CONSIDERED BY HIS BOARD, AND THAT, IF TRUE, WOULD
BE SUFFICIENT UNDER REGULATION OR STATUTE TO WARRANT GRANTING THE
REQUESTED RECLASSIFICATION, THE BOARD MUST REOPEN THE REGISTRANT'S
CLASSIFICATION UNLESS THE TRUTH OF THESE NEW ALLEGATIONS IS
CONCLUSIVELY REFUTED BY OTHER RELIABLE INFORMATION IN THE REGISTRANT'S
FILE.  SEE UNITED STATES V. BURLICH, 257 F.SUPP.  906, 911.  FOR IN THE
ABSENCE OF SUCH REFUTATION THERE CAN BE NO BASIS FOR THE BOARD'S
REFUSAL TO REOPEN EXCEPT AN EVALUATIVE DETERMINATION ADVERSE TO THE
REGISTRANT'S CLAIM ON THE MERITS.  AND IT IS JUST THIS SORT OF
DETERMINATION THAT CANNOT BE MADE WITHOUT AFFORDING THE REGISTRANT A
CHANCE TO BE HEARD AND AN OPPORTUNITY FOR AN ADMINISTRATIVE APPEAL. 

BECAUSE OF THE NARROWLY LIMITED SCOPE OF JUDICIAL REVIEW AVAILABLE
TO A REGISTRANT, /4/  THE OPPORTUNITY FOR FULL ADMINISTRATIVE REVIEW IS
INDISPENSABLE TO THE FAIR OPERATION OF THE SELECTIVE SERVICE SYSTEM. 
/5/  WHERE A PRIMA FACIE CASE FOR RECLASSIFICATION HAS BEEN MADE, A
BOARD CANNOT DEPRIVE THE REGISTRANT OF SUCH REVIEW BY SIMPLY REFUSING
TO REOPEN HIS FILE.  /6/  YET HERE THE BOARD DID PRECISELY THAT.  FOR
IT IS CLEAR THAT THE PETITIONER'S SSS FORM 150 AND THE ACCOMPANYING
LETTERS CONSTITUTED A PRIMA FACIE SHOWING THAT HE MET THE STATUTORY
STANDARD FOR CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR (50 U.S.C. APP.
456(J) (1964 ED., SUPP. IV)), AND THE GOVERNMENT NOW VIRTUALLY CONCEDES
AS MUCH. 

THE GOVERNMENT SUGGESTS, HOWEVER, THAT THE BOARD MIGHT HAVE
CONCLUDED THAT THE PRIMA FACIE CLAIM HAD BEEN UNDERCUT BY THE
PETITIONER HIMSELF-- BY HIS STATEMENTS AT THE COURTESY INTERVIEW OR
BECAUSE HIS DEMEANOR CONVINCED THE BOARD THAT HE WAS NOT TELLING THE
TRUTH.  THERE IS, HOWEVER, BUT SCANT EVIDENCE IN THE RECORD THAT THE
BOARD'S ACTION WAS BASED ON ANY SUCH GROUNDS.  AND, IN ANY EVENT, IT IS
ON PRECISELY SUCH GROUNDS AS THESE THAT BOARD ACTION CANNOT BE
PREDICATED WITHOUT A REOPENING OF THE REGISTRANT'S CLASSIFICATION, AND
A CONSEQUENT OPPORTUNITY FOR ADMINISTRATIVE APPEAL. 

THIS IS NOT TO SAY THAT ON ALL THE FACTS PRESENTED TO IT THE BOARD
MIGHT NOT HAVE BEEN JUSTIFIED IN REFUSING TO GRANT THE PETITIONER A I-O
CLASSIFICATION; IT IS TO SAY THAT SUCH REFUSAL COULD PROPERLY OCCUR
ONLY AFTER HIS CLASSIFICATION HAD FIRST BEEN REOPENED.  THE BOARD COULD
NOT DEPRIVE THE PETITIONER OF THE PROCEDURAL PROTECTIONS ATTENDING
REOPENING BY MAKING AN EVALUATIVE DETERMINATION OF HIS CLAIM WHILE
PURPORTEDLY DECLINING TO REOPEN HIS CLASSIFICATION.  /7/ 

SINCE THE PETITIONER PRESENTED A NONFRIVOLOUS, PRIMA FACIE CLAIM FOR
A CHANGE IN CLASSIFICATION BASED ON NEW FACTUAL ALLEGATIONS WHICH WERE
NOT CONCLUSIVELY REFUTED BY OTHER INFORMATION IN HIS FILE, IT WAS AN
ABUSE OF DISCRETION FOR THE BOARD NOT TO REOPEN HIS CLASSIFICATION,
THUS DEPRIVING HIM OF HIS RIGHT TO AN ADMINISTRATIVE APPEAL.  THE ORDER
TO REPORT FOR INDUCTION WAS ACCORDINGLY INVALID, AND HIS CONVICTION FOR
REFUSING TO SUBMIT TO INDUCTION MUST BE REVERSED. 

              IT IS SO ORDERED. 

/1/  AT THIS TIME THERE WAS NO OUTSTANDING ORDER TO REPORT FOR
INDUCTION, THOUGH AT LEAST TWO ORDERS TO REPORT HAD PREVIOUSLY BEEN
SENT AND SUBSEQUENTLY CANCELED FOR VARIOUS REASONS NOT RELEVANT HERE. 
PRIOR TO THE PETITIONER'S CLASSIFICATION IN I-A HAD HAD A II-S STUDENT
DEFERMENT AND SUBSEQUENTLY A II-A OCCUPATIONAL DEFERMENT. 

/2/  IF RECLASSIFICATION IS SOUGHT AFTER AN ORDER TO REPORT FOR
INDUCTION HAS BEEN MAILED TO THE REGISTRANT, THE REGULATIONS PROVIDE
THAT THE CLASSIFICATION "SHALL NOT BE REOPENED . . . UNLESS THE LOCAL
BOARD FIRST SPECIFICALLY FINDS THERE HAS BEEN A CHANGE IN THE
REGISTRANT'S STATUS RESULTING FROM CIRCUMSTANCES OVER WHICH THE
REGISTRANT HAD NO CONTROL."  32 CFR 1625.2. 

/3/  UNITED STATES V. GEAREY, 379 F.2D 915, 922 N. 11 (C.A. 2D CIR.
1967), ADOPTING THE STANDARD ENUNCIATED IN UNITED STATES V. BURLICH,
257 F.SUPP.  906, 911 (D.C.S.D.N.Y. 1966); UNITED STATES V. TURNER, 421
F.2D 1251 (C.A. 3D CIR. 1970); UNITED STATES V. GRIER, 415 F.2D 1098
(C.A. 4TH CIR. 1969); ROBERTSON V. UNITED STATES, 404 F.2D 1141 (C.A.
5TH CIR. 1968), REV'D EN BANC ON OTHER GROUNDS, 417 F.2D 440 (1969);
TOWNSEND V. ZIMMERMAN, 237 F.2D 376 (C.A. 6TH CIR. 1956); UNITED STATES
V. FREEMAN, 388 F.2D 246 (C.A. 7TH CIR. 1967); DAVIS V. UNITED STATES,
410 F.2D 89 (C.A. 8TH CIR. 1969); MILLER V. UNITED STATES, 388 F.2D 973
(C.A. 9TH CIR. 1967); FORE V. UNITED STATES, 395 F.2D 548, 554 (C.A.
10TH CIR. 1968).     /4/  SEE, E.G., CLARK V. GABRIEL, 393 U.S. 256. 

/5/  SEE, E.G., UNITED STATES V. FREEMAN, 388 F.2D 246; UNITED
STATES V. TURNER, 421 F.2D 1251; OLVERA V. UNITED STATES, 223 F.2D 880
(C.A. 5TH CIR. 1955); SEE ALSO SIMMONS V. UNITED STATES, 348 U.S. 397. 

/6/  THE SCOPE OF JUDICIAL REVIEW IS, AS A PRACTICAL MATTER,
PARTICULARLY NARROW WHERE THE REGISTRANT IS CLAIMING CONSCIENTIOUS
OBJECTOR STATUS. 

"A SINCERE CLAIMANT FOR CONSCIENTIOUS OBJECTOR STATUS CANNOT TURN TO
THE HABEAS CORPUS REMEDY (TO CHALLENGE THE LEGALITY OF HIS
CLASSIFICATION) BECAUSE HIS RELIGIOUS BELIEF PREVENTS HIM FROM
ACCEPTING INDUCTION UNDER ANY CIRCUMSTANCES.  AS A RESULT HE IS LIMITED
TO SEEKING REVIEW IN A CRIMINAL TRIAL FOR REFUSAL TO SUBMIT.  IN THIS
CRIMINAL PROCEEDING, AS IN ANY PROCEEDING REVIEWING A DRAFT
CLASSIFICATION, HIS DEFENSE OF INVALID CLASSIFICATION IS TESTED BY THE
'BASIS IN FACT' FORMULA.  UNDER THESE CIRCUMSTANCES CONVICTION IS
ALMOST INEVITABLE, SINCE THE BOARD'S REFUSAL TO GRANT THE CONSCIENTIOUS
OBJECTOR CLASSIFICATION IS BASED ON AN INFERENCE AS TO THE SINCERITY OF
THE REGISTRANT'S BELIEF AND THERE WILL ALMOST ALWAYS BE SOMETHING IN
THE RECORD TO SUPPORT AN INFERENCE OF LACK OF SINCERITY."  UNITED
STATES V. FREEMAN, 388 F.2D 246, 248-249 (C.A. 7TH CIR. 1967). 

/7/  THE GOVERNMENT ARGUES THAT IF THE LOCAL BOARD MUST REOPEN
WHENEVER A PRIMA FACIE CASE FOR RECLASSIFICATION IS STATED BY THE
REGISTRANT, HE WILL BE ABLE TO POSTPONE HIS INDUCTION INDEFINITELY AND
THE ADMINISTRATION OF THE SELECTIVE SERVICE SYSTEM WILL BE UNDERMINED. 
BUT THE BOARD NEED NOT REOPEN WHERE THE CLAIM IS PLAINLY INCREDIBLE, OR
WHERE, EVEN IF TRUE, IT WOULD NOT WARRANT RECLASSIFICATION, OR WHERE
THE CLAIM HAS ALREADY BEEN PASSED ON, OR WHERE THE CLAIM ITSELF IS
CONCLUSIVELY REFUTED BY OTHER INFORMATION IN THE APPLICANT'S FILE. 
MOREOVER, A REGISTRANT WHO MAKES FALSE STATEMENTS TO HIS DRAFT BOARD IS
SUBJECT TO SEVERE CRIMINAL PENALTIES.  50 U.S.C. APP. 462(A) (1964 ED.,
SUPP. IV). 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

ROBERT ALLEN SEDLER ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

JOSEPH J. CONNOLLY ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, FRANCIS X. BEYTAGH, JR., AND PHILIP R. MONAHAN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MARVIN M.
KARPATKIN, MICHAEL N. POLLET, AND MELVIN L. WULF FOR THE AMERICAN CIVIL
LIBERTIES UNION ET AL., AND BY RALPH RUDD AND BENJAMIN B. SHEERER FOR
WAYNE SPENCER DERI ET AL.
..END :















EVANS V. CORNMAN, 398 U.S. 419 


       EVANS ET AL. V. CORNMAN ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MARYLAND. 

        NO. 236.  ARGUED JANUARY 22, 1970-- DECIDED JUNE 15, 1970. 


RESIDENTS ON GROUNDS OF THE NATIONAL INSTITUTES OF HEALTH ARE TREATED
BY THE STATE OF MARYLAND, IN WHICH THAT FEDERAL ENCLAVE IS LOCATED, AS
STATE RESIDENTS TO SUCH AN EXTENT THAT IT VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT TO DENY THEM THE RIGHT TO VOTE IN
THAT STATE.  PP. 420-426. 

295 F.SUPP.  654, AFFIRMED. 

OPINION OF THE COURT BY MR. JUSTICE MARSHALL, ANNOUNCED BY MR.
JUSTICE STEWART. 

APPELLEES LIVE ON THE GROUNDS OF THE NATIONAL INSTITUTES OF HEALTH
(NIH), A FEDERAL RESERVATION OR ENCLAVE LOCATED WITHIN THE
GEORGRAPHICAL BOUNDARIES OF MONTGOMERY COUNTY IN THE STATE OF
MARYLAND.  IN OCTOBER 1968, THE PERMANENT BOARD OF REGISTRY OF
MONTGOMERY COUNTY ANNOUNCED THAT PERSONS LIVING ON NIH GROUNDS, DID NOT
MEET THE RESIDENCY REQUIREMENT OF ART. 1, SEC. 1, OF THE MARYLAND
CONSTITUTION.  ACCORDINGLY, SUCH PERSONS WERE NOT QUALIFIED TO VOTE IN
MARYLAND ELECTIONS, AND THE NAMES OF THOSE PREVIOUSLY REGISTERED WOULD
BE REMOVED FROM THE COUNTY'S VOTER ROLLS.  APPELLEES THEN INSTITUTED
THE PRESENT SUIT AGAINST THE MEMBERS OF THE PERMANENT BOARD, REQUESTING
THAT A THREE-JUDGE FEDERAL DISTRICT COURT BE CONVENED TO ENJOIN AS
UNCONSTITUTIONAL THIS APPLICATION OF THE MARYLAND VOTER RESIDENCY LAW. 

AFTER THE DISTRICT COURT ISSUED A TEMPORARY RESTRAINING ORDER SO
THAT APPELLEES WHO HAD PREVIOUSLY REGISTERED COULD VOTE IN THE NOVEMBER
1968 GENERAL ELECTION, /1/  THE CASE WAS CONSIDERED ON THE PLEADINGS
AND STIPULATIONS OF FACT.  THE DISTRICT COURT ISSUED THE REQUESTED
PERMANENT INJUNCTION, HOLDING THAT TO DENY APPELLEES THE RIGHT TO VOTE
WAS TO DENY THEM THE EQUAL PROTECTION OF THE LAWS.  CORNMAN V. DAWSON,
295 F.SUPP.  654 (D.C. MD. 1969).  THEREAFTER, A MOTION BY THE PRESENT
APPELLANTS TO INTERVENE AS ADDITIONAL DEFENDANTS WAS GRANTED, AND A
DIRECT APPEAL WAS PROSECUTED TO THIS COURT UNDER 28 U.S.C. 1253.  WE
NOTED PROBABLE JURISDICTION, 396 U.S. 812 (1969), AND WE AFFIRM. 

UNDER ART. I, SEC. 8, CL. 17, OF THE UNITED STATES CONSTITUTION,
CONGRESS IS EMPOWERED TO "EXERCISE EXCLUSIVE LEGISLATION IN ALL CASES
WHATSOEVER . . . OVER ALL PLACES PURCHASED BY THE CONSENT OF THE
LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION
OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL
BUILDINGS."  NIH, A MEDICAL RESEARCH FACILITY OWNED AND OPERATED BY THE
UNITED STATES GOVERNMENT, IS ONE OF THE PLACES SUBJECT TO THAT
CONGRESSIONAL POWER.  THE FACILITY COMMENCED OPERATION MORE THAN 30
YEARS AGO, WHEN LAND WAS PURCHASED AND RESIDENTIAL BUILDINGS WERE BUILT
TO ALLOW SCIENTISTS AND DOCTORS TO LIVE NEAR THEIR WORK.  IT DID NOT
BECOME A FEDERAL RESERVATION, HOWEVER, UNTIL 1953 WHEN THE STATE OF
MARYLAND CEDED JURISDICTION OVER THE PROPERTY TO THE UNITED STATES. 
/2/ 

BEFORE THAT TIME, PERSONS WHO RESIDED ON NIH GROUNDS COULD REGISTER
AND VOTE IN MONTGOMERY COUNTY; THEY CONTINUED TO DO SO, APPARENTLY
WITHOUT QUESTION, FOR ANOTHER 15 YEARS.  IN 1963, HOWEVER, IN A CASE
INVOLVING RESIDENTS OF ANOTHER FEDERAL ENCLAVE, ROYER V. BOARD OF
ELECTION SUPERVISORS, 231 MD. 561, 191 A.2D 446, THE MARYLAND COURT OF
APPEALS RULED THAT A RESIDENT OF A FEDERAL RESERVATION IS NOT "A
RESIDENT OF THE STATE" WITHIN THE MEANING OF THAT TERM IN ART. 1, SEC.
1, OF THE MARYLAND CONSTITUTION, THE PROVISION THAT GOVERNS VOTER
QUALIFICATIONS. 

IT WAS THE ROYER DECISION THAT PROMPTED THE ACTION OF THE ELECTION
OFFICIALS IN THE PRESENT CASE.  APPELLANTS RELY HEAVILY ON IT AND URGE
SIMPLY THAT PERSONS WHO LIVE ON NIH GROUNDS ARE RESIDENTS OF THE
ENCLAVE, NOT RESIDENTS OF THE STATE OF MARYLAND.  MARYLAND MAY, OF
COURSE, REQUIRE THAT "ALL APPLICANTS FOR THE VOTE ACTUALLY FULFILL THE
REQUIREMENTS OF BONA FIDE RESIDENCE."  CARRINGTON V. RASH, 380 U.S.
89,96 (1965).  "BUT IF THEY ARE IN FACT RESIDENTS, WITH THE INTENTION
OF MAKING (THE STATE) THEIR HOME INDEFINITELY, THEY, AS ALL OTHER
QUALIFIED RESIDENTS, HAVE A RIGHT TO AN EQUAL OPPORTUNITY FOR POLITICAL
REPRESENTATION."  ID., AT 94. 

WHAT WAS SAID IN CARRINGTON, REJECTING IN ANOTHER CONTEXT A
DIFFERENT ARTIFICIAL GLOSS ON A RESIDENCY REQUIREMENT, IS APPLICABLE
HERE AS WELL.  APPELLEES CLEARLY LIVE WITHIN THE GEOGRAPHICAL
BOUNDARIES OF THE STATE OF MARYLAND, AND THEY ARE TREATED AS STATE
RESIDENTS IN THE CENSUS AND IN DETERMINING CONGRESSIONAL
APPORTIONMENT.  THEY ARE NOT RESIDENTS OF MARYLAND ONLY IF THE NIH
GROUNDS CEASED TO BE A PART OF MARYLAND WHEN THE ENCLAVE WAS CREATED. 
HOWEVER, THAT "FICTION OF A STATE WITHIN A STATE" WAS SPECIFICALLY
REJECTED BY THIS COURT IN HOWARD V. COMMISSIONERS OF LOUISVILLE, 344
U.S. 624, 627 (1953), AND IT CANNOT BE RESURRECTED HERE TO DENY
APPELLEES THE RIGHT TO VOTE. 

APPELLANTS ARGUE THAT EVEN IF APPELLEES ARE RESIDENTS OF MARYLAND,
THE STATE MAY CONSTITUTIONALLY STRUCTURE ITS ELECTION LAWS SO AS TO
DENY THEM THE RIGHT TO VOTE.  THIS COURT HAS, OF COURSE, RECOGNIZED
THAT THE STATES "HAVE LONG BEEN HELD TO HAVE BROAD POWERS TO DETERMINE
THE CONDITIONS UNDER WHICH THE RIGHT OF SUFFRAGE MAY BE EXERCISED." 
LASSITER V. NORTHAMPTON ELECTION BOARD, 360 U.S. 45, 50 (1959).  AT THE
SAME TIME, HOWEVER, THERE CAN BE NO DOUBT AT THIS DATE THAT "ONCE THE
FRANCHISE IS GRANTED TO THE ELECTORATE, LINES MAY NOT BE DRAWN WHICH
ARE INCONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT."  HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663, 665
(1966); SEE WILLIAMS V. RHODES, 393 U.S. 23, 29 (1968).  MOREOVER, THE
RIGHT TO VOTE, AS THE CITIZEN'S LINK TO HIS LAWS AND GOVERNMENT, IS
PROTECTIVE OF ALL FUNDAMENTAL RIGHTS AND PRIVILEGES.  SEE YICK WO V.
HOPKINS, 118 U.S. 356, 370 (1886); WESBERRY V. SANDERS, 376 U.S. 1, 17
(1964).  AND BEFORE THAT RIGHT CAN BE RESTRICTED, THE PURPOSE OF THE
RESTRICTION AND THE ASSERTEDLY OVERRIDING INTERESTS SERVED BY IT MUST
MEET CLOSE CONSTITUTIONAL SCRUTINY. 

THE SOLE INTEREST OR PURPOSE ASSERTED BY APPELLANTS TO JUSTIFY THE
LIMITATION ON THE VOTE IN THE PRESENT CASE IS ESSENTIALLY TO INSURE
THAT ONLY THOSE CITIZENS WHO ARE PRIMARILY OR SUBSTANTIALLY INTERESTED
IN OR AFFECTED BY ELECTORAL DECISIONS HAVE A VOICE IN MAKING THEM. 
WITHOUT DECIDING THE QUESTION, WE HAVE ASSUMED THAT SUCH AN INTEREST
COULD BE SUFFICIENTLY COMPELLING TO JUSTIFY LIMITATIONS ON THE
SUFFRAGE, AT LEAST WITH REGARD TO SOME ELECTIONS.  SEE KRAMER V. UNION
SCHOOL DISTRICT, 395 U.S. 621, 632 (1969); CIPRIANO V. CITY OF HOUMA,
395 U.S. 701, 704 (1969).  HOWEVER, IT IS CLEAR THAT SUCH A CLAIM
CANNOT LIGHTLY BE ACCEPTED.  THIS COURT HAS HELD THAT A STATE MAY NOT
DILUTE A PERSON'S VOTE TO GIVE WEIGHT TO OTHER INTERESTS, SEE, E.G.,
REYNOLDS V. SIMS, 377 U.S. 533 (1964), AND A LESSER RULE COULD HARDLY
BE APPLICABLE TO A COMPLETE DENIAL OF THE VOTE.  SEE KRAMER V. UNION
SCHOOL DISTRICT, SUPRA, AT 626-627.  ALL TOO OFTEN, LACK OF A
"SUBSTANTIAL INTEREST" MIGHT MEAN NO MORE THAN A DIFFERENT INTEREST,
AND "'(FENCING OUT' FROM THE FRANCHISE A SECTOR OF THE POPULATION
BECAUSE OF THE WAY THEY MAY VOTE IS CONSTITUTIONALLY IMPERMISSIBLE." 
CARRINGTON V. RASH, SUPRA, AT 94. 

ACCORDING TO APPELLANTS, NIH RESIDENTS ARE SUBSTANTIALLY LESS
INTERESTED IN MARYLAND AFFAIRS THAN OTHER RESIDENTS OF THE STATE
BECAUSE THE CONSTITUTION VESTS "EXCLUSIVE LEGISLATION IN ALL CASES
WHATSOEVER" OVER FEDERAL ENCLAVES TO CONGRESS.  APPELLANTS CITE
DECISIONS DATING BACK TO OPINION OF THE JUSTICES, 42 MASS. 580 (1841),
AND SINKS V. REESE, 19 OHIO ST. 306 (1870), DENYING ENCLAVE RESIDENTS
THE RIGHT TO VOTE ON THE GROUND THAT THE STATE HAS NO JURISDICTION OVER
THEM.  /3/  WE NEED NOT CONSIDER, HOWEVER, WHETHER THESE EARLY CASES
WOULD MEET THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT, FOR THE
RELATIONSHIP BETWEEN FEDERAL ENCLAVES AND THE STATES IN WHICH THEY ARE
LOCATED HAS CHANGED CONSIDERABLY SINCE THEY WERE DECIDED.  AS THE
DISTRICT COURT NOTED, CONGRESS HAS NOW PERMITTED THE STATES TO EXTEND
IMPORTANT ASPECTS OF STATE POWERS OVER FEDERAL AREAS.  WHILE IT IS TRUE
THAT FEDERAL ENCLAVES ARE STILL SUBJECT TO EXCLUSIVE FEDERAL
JURISDICTION AND CONGRESS COULD RESTRICT AS WELL AS EXTEND THE POWERS
OF THE STATES WITHIN THEIR BOUNDS, SEE OFFUTT HOUSING CO. V. SARPY
COUNTY, 351 U.S. 253 (1956), WHETHER APPELLEES ARE SUFFICIENTLY
DISINTERESTED IN ELECTORAL DECISIONS THAT THEY MAY BE DENIED THE VOTE
DEPENDS ON THEIR ACTUAL INTEREST TODAY, NOT ON WHAT IT MAY BE SOMETIME
IN THE FUTURE. 

APPELLANTS DO NOT DENY THAT THERE ARE NUMEROUS AND VITAL WAYS IN
WHICH NIH RESIDENTS ARE AFFECTED BY ELECTORAL DECISIONS.  THUS, IF
ELECTED REPRESENTATIVES ENACT NEW STATE CRIMINAL LAWS OR SANCTIONS OR
MAKE CHANGES IN THOSE PRESENTLY IN EFFECT, THE CHANGES APPLY EQUALLY TO
PERSONS ON NIH GROUNDS.  UNDER THE FEDERAL ASSIMILATIVE CRIMES ACT, 18
U.S.C. 13, "ACTS NOT PUNISHABLE BY ANY ENACTMENT OF CONGRESS ARE
PUNISHABLE BY THE THEN EFFECTIVE LAWS OF THE STATE IN WHICH THE ENCLAVE
IS SITUATED."  UNITED STATES V. SHARPNACK, 355 U.S. 286, 287 (1958). 
FURTHER, APPELLEES ARE AS CONCERNED WITH STATE SPENDING AND TAXING
DECISIONS AS OTHER MARYLAND RESIDENTS, FOR CONGRESS HAS PERMITTED THE
STATES TO LEVY AND COLLECT THEIR INCOME, GASOLINE, SALES, AND USE TAXES
- THE MAJOR SOURCES OF STATE REVENUES-- ON FEDERAL ENCLAVES.  SEE 4
U.S.C. 104-110.  APPELLEES ARE REQUIRED TO REGISTER THEIR AUTOMOBILES
IN MARYLAND AND OBTAIN DRIVERS' PERMITS AND LICENSE PLATES FROM THE
STATE; THEY ARE SUBJECT TO THE PROCESS AND JURISDICTION OF STATE
COURTS; THEY THEMSELVES CAN RESORT TO THOSE COURTS IN DIVORCE AND CHILD
ADOPTION PROCEEDINGS; AND THEY SEND THEIR CHILDREN TO MARYLAND PUBLIC
SCHOOLS. 

ALL OF THESE FACTORS LED THE DISTRICT COURT TO "CONCLUDE THAT ON
BALANCE THE (APPELLEES) ARE TREATED BY THE STATE OF MARYLAND AS STATE
RESIDENTS TO SUCH AN EXTENT THAT IT IS A VIOLATION OF THE FOURTEENTH
AMENDMENT FOR THE STATE TO DENY THEM THE RIGHT TO VOTE."  295
F.SUPP.,AT 659.  APPELLANTS RESIST THAT CONCLUSION, ARGUING THAT NIH
RESIDENTS DO NOT PAY THE REAL PROPERTY TAXES THAT CONSTITUTE A LARGE
PART OF THE REVENUES FOR LOCAL SCHOOL BUDGETS.  /4/  HOWEVER, MARYLAND
DOES NOT PURPORT TO EXCLUDE FROM THE POLLS ALL PERSONS LIVING ON TAX
EXEMPT PROPERTY, AND IT COULD NOT CONSTITUTIONALLY DO SO.  CIPRIANO V.
CITY OF HOUMA, SUPRA; SEE KRAMER V. UNION SCHOOL DISTRICT, SUPRA.  OF
THE OTHER DIFFERENCES ASSERTED BETWEEN MARYLAND RESIDENTS WHO LIVE ON
FEDERAL ENCLAVES AND THOSE WHO DO NOT, MOST ARE FAR MORE THEORETICAL
THAN REAL.  /5/  IN ANY CASE, THESE DIFFERENCES, ALONG WITH WHATEVER
OTHERS MAY EXIST, DO NOT COME CLOSE TO ESTABLISHING THAT DEGREE OF
DISINTEREST IN ELECTORAL DECISIONS THAT MIGHT JUSTIFY A TOTAL EXCLUSION
FROM THE FRANCHISE. 

IN THEIR DAY-TO-DAY AFFAIRS, RESIDENTS OF THE NIH GROUNDS ARE JUST
AS INTERESTED IN AND CONNECTED WITH ELECTORAL DECISIONS AS THEY WERE
PRIOR TO 1953 WHEN THE AREA CAME UNDER FEDERAL JURISDICTION AND AS ARE
THEIR NEIGHBORS WHO LIVE OFF THE ENCLAVE.  IN NEARLY EVERY ELECTION,
FEDERAL, STATE, AND LOCAL, FOR OFFICES FROM THE PRESIDENCY TO THE
SCHOOL BOARD, AND ON THE ENTIRE VARIETY OF OTHER BALLOT PROPOSITIONS,
APPELLEES HAVE A STAKE EQUAL TO THAT OF OTHER MARYLAND RESIDENTS.  AS
THE DISTRICT COURT CONCLUDED, THEY ARE ENTITLED UNDER THE FOURTEENTH
AMENDMENT TO PROTECT THAT STAKE BY EXERCISING THE EQUAL RIGHT TO VOTE. 

THE JUDGMENT IS

              AFFIRMED. 

/1/  OF THE 12 APPELLEES, 10 WERE REGISTERED TO VOTE IN MARYLAND
PRIOR TO THE COMMENCEMENT OF THIS SUIT.  THE OTHER TWO HAD SOUGHT TO
REGISTER BUT WERE NOT ALLOWED TO BECAUSE THEY LIVED ON NIH GROUNDS. 

/2/  SEE MD. ANN. CODE, ART. 96, SEC. 34. 

/3/  IN ADDITION TO THE ROYER DECISION OF THE MARYLAND COURT OF
APPEALS, THERE ARE A NUMBER OF OTHER STATE COURT RULINGS TO THE SAME
EFFECT.  SEE, E.G., HERKEN V. GLYNN, 151 KAN. 855, 101 P.2D 946 (1940);
ARLEDGE V. MABRY, 52 N.M. 303, 197 P.2D 884 (1948); MCMAHON V. POLK, 10
S.D. 296, 73 N.W. 77 (1897); STATE EX REL. LYLE V. WILLETT, 117 TENN.
334, 97 S.W. 299 (1906). 

AT THE SAME TIME, HOWEVER, THERE IS A CONTRARY LINE OF RECENT STATE
DECISIONS GRANTING ENCLAVE RESIDENTS THE RIGHT TO VOTE.  SEE ARAPAJOLU
V. MCMENAMIN, 113 CAL.APP.2D 824, 249 P.2D 318 (1952); ROTHFELS V.
SOUTHWORTH, 11 UTAH 2D 169, 356 P.2D 612 (1960); ADAMS V. LONDEREE, 139
W.VA. 748, 83 S.E.2D 127 (1954). 

/4/  EXCEPT FOR A LESSEE'S INTEREST IN PROPERTY LEASED FROM THE UNITED
STATES, SEE 10 U.S.C. 2667(E), CONGRESS HAS NOT PROVIDED THAT THE
STATES MAY APPLY THEIR PROPERTY TAXES TO FEDERAL ENCLAVES.  AT THE SAME
TIME, ALL, OR VIRTUALLY ALL, ENCLAVE REAL PROPERTY IS OWNED BY THE
UNITED STATES AND IS OTHERWISE EXEMPT FROM STATE PROPERTY TAXES.  TO
COMPENSATE FOR THIS EXEMPTION, CONGRESS HAS PROVIDED THAT INCREASED
AMOUNTS OF FEDERAL-AID-TO-EDUCATION FUNDS BE PAID WITH RESPECT TO
FEDERAL EMPLOYEES LIVING ON FEDERAL PROPERTY.  SEE 20 U.S.C. 236-244,
631-645. 

/5/  THUS, IF THERE WERE SEVERANCE OR PERSONAL PROPERTY TAXES
APPLICABLE TO RESIDENTS OF MONTGOMERY COUNTY (WHICH THERE ARE NOT),
THEY COULD NOT BE COLLECTED ON THE ENCLAVE.  SIMILARLY, APPELLEES ARE
EXEMPT FROM SERVICE IN THE STATE'S UNORGANIZED MILITIA (WHICH HAS
APPARENTLY NEVER BEEN CALLED UP) AND FROM COMPULSORY EDUCATION LAWS. 
APPELLANTS STATE THAT A MYRIAD OF STATE REGULATORY AND LICENSING
PROVISIONS ARE NOT ENFORCEABLE ON THE ENCLAVE, BUT NO INSTANCE OF A
PRACTICAL EFFECT ON APPELLEES IS CITED.  SEE ALSO CHICAGO & PACIFIC R.
CO. V. MCGLINN, 114 U.S. 542 (1885); STEWART & CO. V. SADRAKULA, 309
U.S. 94 (1940). 

PERHAPS THE MOST REAL OF THE DIFFERENCES IS THAT CRIMES COMMITTED ON
NIH GROUNDS WHERE APPELLEES LIVE,WHILE DEFINED BY STATE LAW, MAY ONLY
BE PROSECUTED IN FEDERAL COURT BY FEDERAL AUTHORITIES, WHEREAS THE SAME
ACTS WOULD BE PROSECUTED BY STATE AUTHORITIES IN STATE COURTS IF THEY
OCCURRED OFF THE ENCLAVE.  IF THIS DIFFERENCE LESSENS APPELLEES'
INTEREST IN STATE LAW ENFORCEMENT AND POLICY AT ALL, IT CERTAINLY DOES
NOT DO SO SUBSTANTIALLY.  ALL MARYLAND RESIDENTS, INCLUDING APPELLEES,
UNDOUBTEDLY HAVE AN INTEREST IN STATE LAWS AND HOW THEY ARE ENFORCED
THROUGHOUT THE ENTIRE STATE.     MR. JUSTICE BLACKMUN TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THIS CASE. 

ROBERT F. SWEENEY, DEPUTY ATTORNEY GENERAL OF MARYLAND, ARGUED THE
CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE FRANCIS B. BURCH,
ATTORNEY GENERAL, AND GEORGE W. LIEBMANN AND HENRY R. LORD, ASSISTANT
ATTORNEYS GENERAL. 

RICHARD SCHIFTER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS HOWARD J. THOMAS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL LEONARD, AND
FRANCIS X. BEYTAGH, JR., FILED A BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :









MITCHELL V. DONOVAN, 398 U.S. 427 


       MITCHELL ET AL. V. DONOVAN, SECRETARY OF STATE OF MINNESOTA,

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MINNESOTA. 

        NO. 726.  ARGUED APRIL 21, 1970-- DECIDED JUNE 15, 1970. 


APPELLANTS HAD REQUESTED AN INJUNCTION TO HAVE THE NAMES OF COMMUNIST
PARTY CANDIDATES PLACED ON THE BALLOT IN MINNESOTA FOR THE 1968
ELECTION, WHICH WAS GRANTED.  AFTER THE ELECTION THE FEDERAL DISTRICT
COURT, FINDING NO PRESENT CASE OR CONTROVERSY, DENIED APPELLANTS'
REQUEST FOR A DECLARATORY JUDGMENT STRIKING DOWN THE COMMUNIST CONTROL
ACT, ON WHICH THE STATE AUTHORITIES HAD RELIED IN REFUSING BALLOT
PLACEMENT.  APPELLANTS BROUGHT A DIRECT APPEAL TO THIS COURT UNDER 28
U.S.C. 1253, WHICH PERMITS AN "APPEAL TO THE SUPREME COURT FROM AN
ORDER GRANTING OR DENYING . . . AN INTERLOCUTORY OR PERMANENT
INJUNCTION . . . ."  HELD:  AN ORDER GRANTING OR DENYING ONLY A
DECLARATORY JUDGMENT MAY NOT BE APPEALED TO THIS COURT UNDER SEC.
1253.  ROCKEFELLER V. CATHOLIC MEDICAL CENTER, 397 U.S. 820. 

300 F.SUPP.  1145, VACATED AND REMANDED. 

PER CURIAM. 

THE APPELLANTS ARE THE 1968 COMMUNIST PARTY CANDIDATES FOR PRESIDENT
AND VICE PRESIDENT OF THE UNITED STATES, VARIOUS MINNESOTA VOTERS WHO
ALLEGED A DESIRE TO VOTE FOR THESE CANDIDATES, AND THE COMMUNIST
PARTIES OF THE UNITED STATES AND OF MINNESOTA.  THE APPELLANT
CANDIDATES OBTAINED PETITIONS CONTAINING THE REQUISITE NUMBER OF NAMES
AND ASKED THE SECRETARY OF STATE OF MINNESOTA TO PLACE THEM ON THE
BALLOT FOR THE 1968 ELECTION.  THE SECRETARY DENIED THE REQUEST,
RELYING UPON AN OPINION BY THE ATTORNEY GENERAL OF THE STATE TO THE
EFFECT THAT PLACING COMMUNIST PARTY CANDIDATES ON THE BALLOT WOULD
VIOLATE THE FEDERAL COMMUNIST CONTROL ACT OF 1954, 68 STAT. 775, 50
U.S.C. 841-842, WHICH DECLARES THAT THE COMMUNIST PARTY "SHOULD BE
OUTLAWED," AND PURPORTS TO STRIP IT OF ALL "RIGHTS, PRIVILEGES, AND
IMMUNITIES ATTENDANT UPON LEGAL BODIES CREATED UNDER THE JURISDICTION
OF THE LAWS OF THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF .
. . ." 

THE APPELLANTS BROUGHT AN ACTION IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA SEEKING A DECLARATION THAT THE COMMUNIST
CONTROL ACT WAS CONSTITUTIONALLY INVALID AND PRAYING FOR A TEMPORARY
RESTRAINING ORDER AND PERMANENT INJUNCTION REQUIRING THE SECRETARY TO
INCLUDE THE NAMES OF THE APPELLANT CANDIDATES ON THE NOVEMBER 1968
BALLOT.  BECAUSE OF THE APPELLANTS' REQUEST FOR INJUNCTIVE RELIEF BASED
UPON A CLAIM THAT A FEDERAL STATUTE WAS UNCONSTITUTIONAL, A THREE-JUDGE
DISTRICT COURT WAS IMPANELED PURSUANT TO 28 U.S.C. 2282.  THE THREE
JUDGE COURT NOTED THAT TIME WAS SHORT BEFORE THE ELECTION; THAT THE
EQUITIES FAVORED THE APPELLANTS; THAT THE UNITED STATES HAD TAKEN THE
POSITION IN AN AMICUS BRIEF THAT THE COMMUNIST CONTROL ACT DID NOT BAR
THE PLACEMENT OF COMMUNIST PARTY CANDIDATES UPON THE BALLOT; AND THAT
IF THE ACT DID APPLY IN THE MANNER ASSERTED BY THE STATE, THERE WOULD
BE "GRAVE DOUBTS" AS TO ITS CONSTITUTIONALITY.  ACCORDINGLY, WITHOUT
DECIDING THE MERITS OF THE APPELLANTS' CLAIMS, THE COURT ORDERED THAT
THE NAMES OF THE APPELLANT CANDIDATES BE PLACED ON THE NOVEMBER 1968
BALLOT.  290 F.SUPP.  642.  THE CANDIDATES RECEIVED THE VOTES OF 415
MINNESOTANS IN THAT ELECTION. 

AFTER THE ELECTION, THE APPELLANTS MOVED TO AMEND THE COMPLAINT,
ALLEGING THAT THE COMMUNIST PARTY INTENDED TO RUN CANDIDATES IN FUTURE
ELECTIONS IN MINNESOTA AND, ON INFORMATION AND BELIEF, THAT MINNESOTA
WOULD ADHERE TO ITS POSITION THAT THE COMMUNIST CONTROL ACT BARRED
PLACING THESE CANDIDATES ON THE BALLOT.  THE DISTRICT COURT ALLOWED THE
AMENDMENT OF THE COMPLAINT.  IT HELD THAT THE PRAYER FOR INJUNCTIVE
RELIEF, WHICH REFERRED ONLY TO THE 1968 ELECTION AND REQUESTED NO
INJUNCTION AS TO FUTURE CONDUCT, HAD BEEN RENDERED MOOT BY THE PASSING
OF THAT ELECTION.  AS TO THE PRAYER FOR A DECLARATORY JUDGMENT STRIKING
DOWN THE COMMUNIST CONTROL ACT, THE COURT FOUND NO PRESENT CASE OR
CONTROVERSY.  IN THE COURT'S VIEW IT WAS NOT SUFFICIENTLY CERTAIN THAT
THE COMMUNIST PARTY WOULD RUN CANDIDATES IN THE FUTURE OR THAT
MINNESOTA WOULD ADHERE TO ITS CONSTRUCTION OF THE FEDERAL STATUTE, TO
TAKE THE CASE OUT OF THE REALM OF THE HYPOTHETICAL.  IT THEREFORE
DISMISSED THE COMPLAINT.  300 F.SUPP.  1145. 

THE APPELLANTS BROUGHT A DIRECT APPEAL TO THIS COURT UNDER 28 U.S.C.
1253, WHICH PROVIDES: 

     "EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO

  THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE

  AND HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY

  CIVIL ACTION, SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS

TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

THE APPELLEES MOVED TO DISMISS THE APPEAL ON THE GROUND THAT THE ORDER
COMPLAINED OF WAS NOT ONE "GRANTING OR DENYING . . . AN INTERLOCUTORY
OR PERMANENT INJUNCTION."  WE NOTED PROBABLE JURISDICTION, 396 U.S.
1000.  THE APPELLEES HAVE PERSISTED IN THEIR CLAIM THAT THE COURT LACKS
JURISDICTION TO CONSIDER THIS APPEAL, AND AFTER HEARING ORAL ARGUMENT
WE HAVE CONCLUDED THAT THEY ARE RIGHT. 

THE ORDER APPEALED FROM DOES NO MORE THAN DENY THE APPELLANTS A
DECLARATORY JUDGMENT STRIKING DOWN THE COMMUNIST CONTROL ACT.  THE ONLY
INJUNCTION EVER REQUESTED BY THE APPELLANTS WAS ONE ORDERING THE NAMES
OF THE COMMUNIST PARTY CANDIDATES TO BE PLACED ON THE BALLOT FOR THE
NOVEMBER 1968 ELECTION.  THAT INJUNCTION WAS GRANTED, AND NO APPEAL WAS
TAKEN BY THE STATE OFFICIALS.  AS IS PLAIN FROM THE OPENING WORDS OF
ITS OPINION IN THE PRESENT PROCEEDING, THE DISTRICT COURT RECOGNIZED
THAT NO REQUEST FOR INJUNCTIVE RELIEF WAS BEFORE IT:  "WE CONCERN
OURSELVES HERE WITH THE PROPRIETY OF ENTERTAINING THAT PORTION OF
PLAINTIFFS' COMPLAINT SEEKING DECLARATORY RELIEF . . . ."  300
F.SUPP.,AT 1146. 

THAT LEAVES US WITH THE QUESTION WHETHER AN ORDER GRANTING OR
DENYING ONLY A DECLARATORY JUDGMENT MAY BE APPEALED TO THIS COURT UNDER
SEC. 1253.  IN A RECENT CASE, ROCKEFELLER V. CATHOLIC MEDICAL CENTER,
397 U.S. 820, WE GAVE A NEGATIVE ANSWER TO THAT QUESTION, AND WE ADHERE
TO THAT DECISION.  SECTION 1253 BY ITS TERMS GRANTS THIS COURT
JURISDICTION ONLY OF APPEALS FROM ORDERS GRANTING OR DENYING
INJUNCTIONS.  WHILE THERE ARE SIMILARITIES BETWEEN INJUNCTIONS AND
DECLARATORY JUDGMENTS, THERE ARE ALSO IMPORTANT DIFFERENCES.  KENNEDY
V. MENDOZA-MARTINEZ, 372 U.S. 144, 154-155; CF. ZWICKLER V. KOOTA, 389
U.S. 241, 254.  THE PROVISIONS CONCERNING THREE-JUDGE COURTS, INCLUDING
THE PROVISIONS FOR DIRECT APPEAL TO THIS COURT, ANTEDATE THE
DECLARATORY JUDGMENT ACT OF 1934, /1/  BUT CONGRESS SUBSTANTIALLY
AMENDED THE THREE-JUDGE COURT PROVISIONS IN 1937 AND 1948 WITHOUT
PROVIDING FOR SUCH DIRECT APPEALS FROM ORDERS GRANTING OR DENYING
DECLARATORY JUDGMENTS.  /2/ 

WE HAVE STRESSED THAT THE THREE-JUDGE-COURT LEGISLATION IS NOT "A
MEASURE OF BROAD SOCIAL POLICY TO BE CONSTRUED WITH GREAT LIBERALITY,"
BUT IS RATHER "AN ENACTMENT TECHNICAL IN THE STRICT SENSE OF THE TERM
AND TO BE APPLIED AS SUCH."  PHILLIPS V. UNITED STATES, 312 U.S. 246,
251.  THUS THIS COURT'S JURISDICTION UNDER THAT LEGISLATION IS TO BE
LITERALLY CONSTRUED.  IT WOULD HARDLY BE FAITHFUL TO SUCH A
CONSTRUCTION TO READ THE STATUTORY TERM "INJUNCTION" AS MEANING
"DECLARATORY JUDGMENT."  /3/ 

WE CONCLUDE, THEREFORE, THAT THIS COURT LACKS JURISDICTION OF THE
APPEAL.  A SIMPLE DISMISSAL FOR WANT OF JURISDICTION, HOWEVER, WOULD
LEAVE THE APPELLANTS WITH NO RECOURSE TO APPELLATE REVIEW, BECAUSE THEY
BROUGHT THEIR APPEAL HERE RATHER THAN TO THE COURT OF APPEALS AND THE
TIME FOR APPEALING TO THE COURT OF APPEALS HAS LONG SINCE PASSED. 
ACCORDINGLY, AS IN OTHER CASES WHERE AN APPEAL WAS IMPROPERLY BROUGHT
TO THIS COURT RATHER THAN THE COURT OF APPEALS, /4/  WE VACATE THE
JUDGMENT BELOW AND REMAND THE CASE SO THAT THE DISTRICT COURT MAY ENTER
A FRESH ORDER DISMISSING THE COMPLAINT, THUS AFFORDING THE APPELLANTS
AN OPPORTUNITY TO TAKE A TIMELY APPEAL TO THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT. 

              IT IS SO ORDERED. 

/1/ 48 STAT. 955, 28 U.S.C. 2201-2202. 

/2/  THE EARLY HISTORY OF THE THREE-JUDGE-COURT STATUTE, THEN SEC.
266 OF THE JUDICIAL CODE, IS SUMMARIZED IN GOLDSTEIN V. COX, 396 U.S.
471, 476-477.  THE 1937 AND 1948 AMENDMENTS, BOTH OF WHICH MADE
SUBSTANTIAL CHANGES IN THE STATUTE, APPEAR AT 50 STAT. 752 AND 62 STAT.
968, RESPECTIVELY. 

/3/  ONE COMMENTATOR HAS ARGUED FOR THE BROADER CONSTRUCTION ON
GROUNDS OF POLICY AND LOGICAL SYMMETRY, SEE CURRIE, THE THREE-JUDGE
DISTRICT COURT IN CONSTITUTIONAL LITIGATION, 32 U.CHI.L.REV.  1, 13-20,
BUT THOSE ARGUMENTS SHOULD BE DIRECTED TO CONGRESS RATHER THAN THE
COURTS. 

/4/  ROCKEFELLER V. CATHOLIC MEDICAL CENTER, SUPRA; STAMLER V.
WILLIS, 393 U.S. 407; MOODY V. FLOWERS, 387 U.S. 97; PHILLIPS V. UNITED
STATES, SUPRA. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE BLACKMUN TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH THE DISTRICT COURT THAT THE CASE IS TOO HYPOTHETICAL TO
QUALIFY AS A "CASE" OR "CONTROVERSY" WITHIN THE MEANING OF ARTICLE III
AND I WOULD AFFIRM.  I DO NOT, HOWEVER, SHARE THE AVERSION TO 28 U.S.C.
1253 WHICH THE COURT'S OPINION REFLECTS.  I WOULD BE HOSPITABLE TO ITS
AIM AND PURPOSE AS MY DISSENT IN SWIFT & CO. V. WICKHAM, 382 U.S. 111,
129, INDICATES.  THE DECLARATORY JUDGMENT IS, I THINK, "AN ORDER
GRANTING OR DENYING . . . AN . . . INJUNCTION" WITHIN THE MEANING OF
SEC. 1253. 

KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, IS NOT TO THE CONTRARY. 
IT MERELY HELD THAT IN SOME CIRCUMSTANCES "AN ACTION SOLELY FOR
DECLARATORY RELIEF" COULD BE TRIED BEFORE A SINGLE JUDGE WHERE THE
"RELIEF SOUGHT AND THE ORDER ENTERED AFFECTED AN ACT OF CONGRESS IN A
TOTALLY NONCOERCIVE FASHION."  ID., AT 154, 155.  WE INDICATED,
HOWEVER, THAT A DIFFERENT RESULT WOULD FOLLOW "WHENEVER THE OPERATION
OF A STATUTORY SCHEME MAY BE IMMEDIATELY DISRUPTED BEFORE A FINAL
JUDICIAL DETERMINATION OF THE VALIDITY OF THE TRIAL COURT'S ORDER CAN
BE OBTAINED."  ID., AT 155. 

THE KENNEDY CASE, IN OTHER WORDS, INVOLVED SOLELY THE QUESTION
WHETHER A THREE-JUDGE COURT NEED ALWAYS BE SUMMONED WHERE NO INJUNCTIVE
RELIEF WAS ASKED OR CONTEMPLATED.  THE ANSWER INVOLVED AN ANALYSIS OF
28 U.S.C. 2281 AND 2282.  WE ARE NOW CONCERNED WITH SEC. 1253 AND THE
MEANING OF "AN ORDER GRANTING OR DENYING . . . AN . . . INJUNCTION." 
THE DECLARATORY JUDGMENT MAY WELL CONTAIN A "THOU SHALT NOT" AS
COMMANDING AS ANY INJUNCTION.  OR ITS REFUSAL MAY BE AS DEFINITIVE AN
ADJUDICATION AS THE REFUSAL OF AN INJUNCTION.  ORDINARILY A DECLARATORY
JUDGMENT WILL RESULT IN PRECISELY THE SAME INTERFERENCE WITH AND
DISRUPTION OF STATE PROCEEDINGS THAT THE LONG-STANDING POLICY LIMITING
INJUNCTIONS WAS DESIGNED TO AVOID. 

WHERE, AS HERE, THE THREE-JUDGE COURT WAS PROPERLY CONVENED, I WOULD
THINK THAT ANY ACTION IT TOOK, WHICH WAS DENYING OR GRANTING AN
INJUNCTION OR ITS EQUIVALENT, WOULD BE PROPERLY HERE UNDER 28 U.S.C.
1253. 

LYNN S. CASTNER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF AND ELEANOR HOLMES NORTON. 

RICHARD H. KYLE, SOLICITOR GENERAL OF MINNESOTA, ARGUED THE CAUSE
FOR APPELLEES.  WITH HIM ON THE BRIEF WERE DOUGLAS M. HEAD, ATTORNEY
GENERAL, PRO SE, ARNE L. SCHOELLER, CHIEF DEPUTY ATTORNEY GENERAL,
JAMES M. KELLEY, ASSISTANT ATTORNEY GENERAL, AND JOHN R. KENEFICK,
SPECIAL ASSISTANT ATTORNEY GENERAL. 
..END :






WALKER V. OHIO, 398 U.S. 434 


       WALKER V. OHIO. 

        APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 1470.  DECIDED JUNE 15, 1970. 


REVERSED. 

PER CURIAM. 

THE JUDGMENT OF THE SUPREME COURT OF OHIO IS REVERSED.  REDRUP V.
NEW YORK, 386 U.S. 767 (1967). 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

THE TRIAL COURT, ENDEAVORING TO APPLY THE STANDARDS ARTICULATED BY
THIS COURT, HELD THAT THE MATERIALS IN QUESTION ARE OBSCENE WITHIN THE
MEANING OF THE RELEVANT OHIO STATUTE.  THIS CONCLUSION RESTED ON
FINDINGS THAT THE MATERIALS ARE PATENTLY OFFENSIVE TO CONTEMPORARY
COMMUNITY STANDARDS RELATING TO THE DESCRIPTION OR REPRESENTATION OF
SEXUAL MATTERS; THAT, WHEN TAKEN AS A WHOLE, THEIR DOMINANT THEME
APPEALS TO THE PRURIENT INTEREST OF THE READER; AND THAT THEY ARE
UTTERLY WITHOUT REDEEMING SOCIAL VALUE.  THE OHIO APPELLATE COURTS
DECLINED TO DISTURB THAT JUDGMENT.  YET TODAY THE COURT REVERSES,
CITING ONLY REDRUP. 

I DISSENT FROM SUCH A SUMMARY DISPOSITION, NOT ONLY FOR THE REASONS
EXPRESSED IN MY DISSENTING OPINION IN CAIN V. KENTUCKY, 397 U.S. 319
(1970), BUT ALSO BECAUSE I FIND NO JUSTIFICATION, CONSTITUTIONAL OR
OTHERWISE, FOR THIS COURT'S ASSUMING THE ROLE OF A SUPREME AND
UNREVIEWABLE BOARD OF CENSORSHIP FOR THE 50 STATES, SUBJECTIVELY
JUDGING EACH PIECE OF MATERIAL BROUGHT BEFORE IT WITHOUT REGARD TO THE
FINDINGS OR CONCLUSIONS OF OTHER COURTS, STATE OR FEDERAL.  THAT IS NOT
ONE OF THE PURPOSES FOR WHICH THIS COURT WAS ESTABLISHED. 

MR. JUSTICE HARLAN, FOR REASONS EXPRESSED IN HIS OPINIONS IN ROTH V.
UNITED STATES, 354 U.S. 476, 496 (1957); JACOBELLIS V. OHIO, 378 U.S.
184, 203 (1964); AND MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 455
(1966),WOULD LEAVE THE JUDGMENT OF THE STATE COURT UNDISTURBED. 

MR. JUSTICE MARSHALL AND MR. JUSTICE BLACKMUN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :







BASSETT V. SMITH, 398 U.S. 435 


       BASSETT V. SMITH, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

GEORGIA. 

        NO. 1658, MISC.  DECIDED JUNE 15, 1970. 


CERTIORARI GRANTED; 226 GA. 10, 172 S.E.2D 407, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME
COURT OF GEORGIA AFFIRMING THE DENIAL OF HABEAS CORPUS IS VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR FURTHER CONSIDERATION AFTER
PETITIONER HAS BEEN AFFORDED ADEQUATE ACCESS TO A COPY OF THE
TRANSCRIPT OF THE TRIAL COURT HEARING ON HIS PETITION FOR HABEAS
CORPUS.  LANE V. BROWN, 372 U.S. 477 (1963); LONG V. DISTRICT COURT,
385 U.S. 192 (1966); CF. WADE V. WILSON, 396 U.S. 282 (1970). 

MR. JUSTICE MARSHALL AND MR. JUSTICE BLACKMUN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :



GENERAL ELECTRIC CO. V. ELECTRICAL, RADIO & MACHINE WORKERS, 398 U.S.
436 



       GENERAL ELECTRIC CO. V. LOCAL UNION 191, INTERNATIONAL UNION

           OF ELECTRICAL, RADIO & MACHINE WORKERS (AFL-CIO), ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

        NO. 701.  DECIDED JUNE 15, 1970. 


CERTIORARI GRANTED; 413 F.2D 964, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
CONSIDERATION IN LIGHT OF BOYS MARKETS V. RETAIL CLERKS UNION, ANTE, P.
235. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :























ATLANTIC C.L.R. CO. V. ENGINEERS, 398 U.S. 281 


       ATLANTIC COAST LINE RAILROAD CO. V. BROTHERHOOD OF

           LOCOMOTIVE ENGINEERS ET AL.

        CERTIORARI TO THE UNITED STATES COURT 0F APPEALS FOR THE

 FIFTH CIRCUIT. 

        NO. 477.  ARGUED MARCH 2-3, 1970-- DECIDED JUNE 8, 1970. 


AS PART OF ITS DISPUTE WITH THE FLORIDA EAST COAST RAILROAD (FEC)
RESPONDENT BROTHERHOOD OF LOCOMOTIVE ENGINEERS (BLE) IN 1967 BEGAN
PICKETING A SWITCHING YARD OWNED AND OPERATED BY ATLANTIC COAST LINE
RAILROAD (ACL).  ACL'S REQUEST FOR AN INJUNCTION TO HALT THE PICKETING
WAS DENIED BY THE FEDERAL DISTRICT COURT, WHICH HELD THAT THE BLE WAS
"FREE TO ENGAGE IN SELF-HELP," AND THAT THE NORRIS-LAGUARDIA ACT AND
SEC. 20 OF THE CLAYTON ACT WERE APPLICABLE.  ACL THEN OBTAINED AN
INJUNCTION FROM A FLORIDA COURT.  AFTER THE DECISION IN RAILROAD
TRAINMEN V. JACKSONVILLE TERMINAL CO., 394 U.S. 369 (1969), HOLDING
THAT UNIONS HAD A FEDERALLY PROTECTED RIGHT TO PICKET THE TERMINAL
WITHOUT INTERFERENCE BY STATE COURT INJUNCTIONS, RESPONDENT UNION MOVED
IN STATE COURT TO DISSOLVE THE INJUNCTION, BUT THE STATE JUDGE HELD
THAT JACKSONVILLE TERMINAL WAS NOT CONTROLLING AND DENIED THE MOTION. 
THE UNION THEN RETURNED TO THE DISTRICT COURT AND REQUESTED AN
INJUNCTION AGAINST THE ENFORCEMENT OF THE STATE INJUNCTION, WHICH THE
DISTRICT COURT GRANTED.  THE COURT OF APPEALS AFFIRMED.  THE UNION
CONTENDS THAT THE FEDERAL INJUNCTION WAS PROPER UNDER 28 U.S.C. 2283
EITHER "TO PROTECT OR EFFECTUATE" THE DISTRICT COURT'S 1967 DENIAL OF
AN INJUNCTION, OR AS "NECESSARY IN AID OF" THAT COURT'S JURISDICTION. 
HELD:  THE FEDERAL INJUNCTION WAS NOT JUSTIFIED UNDER THE EXCEPTIONS IN
SEC. 2283 AND THUS WAS IMPROPERLY ISSUED IN THIS CASE.  PP. 285-297. 

(A) A FEDERAL INJUNCTION AGAINST STATE COURT PROCEEDINGS OTHERWISE
PROPER UNDER GENERAL EQUITABLE PRINCIPLES MUST BE BASED ON ONE OF THE
SPECIFIC STATUTORY EXCEPTIONS TO SEC. 2283.  AMALGAMATED CLOTHING
WORKERS V. RICHMAN BROS., 348 U.S. 511, 515-516.  PP. 286-287. 

(B) THE DISTRICT COURT'S DETERMINATION IN 1967 THAT THE UNION HAD A
RIGHT TO "ENGAGE IN SELF-HELP" UNDER FEDERAL LAW, WAS NOT A DECISION
THAT FEDERAL LAW PRECLUDED AN INJUNCTION BASED ON STATE LAW.  PP. 289
291. 

(C) IN 1969 THE UNION IN EFFECT WAS ATTEMPTING TO GET THE DISTRICT
COURT TO DECIDE THAT THE STATE COURT ERRED IN DISTINGUISHING
JACKSONVILLE TERMINAL, BUT SUCH ATTEMPT TO SEEK FEDERAL APPELLATE
REVIEW OF A STATE DECISION CANNOT BE JUSTIFIED AS NECESSARY "TO PROTECT
OR EFFECTUATE" THE 1967 ORDER.  PP. 291-293. 

(D) SINCE THE STATE AND FEDERAL COURTS HAD CONCURRENT JURISDICTION
IN THIS CASE NEITHER COURT COULD PREVENT A PARTY FROM SIMULTANEOUSLY
PURSUING CLAIMS IN BOTH COURTS, AND AN INJUNCTION WAS NOT "NECESSARY IN
AID OF" THE DISTRICT COURT'S JURISDICTION BECAUSE THE STATE COURT MAY
HAVE ACTED IMPROPERLY IN LIGHT OF JACKSONVILLE TERMINAL, AS THE STATE
COURT'S ASSUMPTION OF JURISDICTION OVER THE STATE LAW CLAIMS DID NOT
HINDER THE FEDERAL COURT'S JURISDICTION.  PP. 294-296. 

(E) WHILE THE UNION CANNOT OBTAIN DIRECT REVIEW OF THE STATE COURT
DECISION IN THE LOWER FEDERAL COURTS, IT CAN, IF ADVERSELY AFFECTED BY
THE DECISION OR IF FACED WITH IMMEDIATE IRREPARABLE INJURY, SEEK RELIEF
IN THE FLORIDA APPELLATE COURTS, AND POSSIBLY IN THIS COURT.  P. 296. 

REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

CONGRESS IN 1793, SHORTLY AFTER THE AMERICAN COLONIES BECAME ONE
UNITED NATION, PROVIDED THAT IN FEDERAL COURTS "A WRIT OF INJUNCTION
(SHALL NOT) BE GRANTED TO STAY PROCEEDINGS IN ANY COURT OF A STATE." 
ACT OF MARCH 2, 1793, SEC. 5, 1 STAT. 335.  ALTHOUGH CERTAIN EXCEPTIONS
TO THIS GENERAL PROHIBITION HAVE BEEN ADDED, THAT STATUTE, DIRECTING
THAT STATE COURTS SHALL REMAIN FREE FROM INTERFERENCE BY FEDERAL
COURTS, HAS REMAINED IN EFFECT UNTIL THIS TIME.  TODAY THAT AMENDED
STATUTE PROVIDES: 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO

  STAY PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED

  BY ACT OF CONGRESS, OR WHERE NECESSARY IN AID OF ITS

  JURISDICTION, OR TO PROTECT OR EFFECTUATE ITS JUDGMENTS."  28

  U.S.C. 2283. 

DESPITE THE EXISTENCE OF THIS LONGSTANDING PROHIBITION, IN THIS CASE
A FEDERAL COURT DID ENJOIN THE PETITIONER, ATLANTIC COAST LINE RAILROAD
CO. (ACL), /1/  FROM INVOKING AN INJUNCTION ISSUED BY A FLORIDA STATE
COURT WHICH PROHIBITED CERTAIN PICKETING BY RESPONDENT BROTHERHOOD OF
LOCOMOTIVE ENGINEERS (BLE).  THE CASE AROSE IN THE FOLLOWING WAY. 

IN 1967 BLE BEGAN PICKETING THE MONCRIEF YARD, A SWITCHING YARD
LOCATED NEAR JACKSONVILLE, FLORIDA, AND WHOLLY OWNED AND OPERATED BY
ACL.  /2/  AS SOON AS THIS PICKETING BEGAN ACL WENT INTO FEDERAL COURT
SEEKING AN INJUNCTION.  WHEN THE FEDERAL JUDGE DENIED THE REQUEST, ACL
IMMEDIATELY WENT INTO STATE COURT AND THERE SUCCEEDED IN OBTAINING AN
INJUNCTION.  NO FURTHER LEGAL ACTION WAS TAKEN IN THIS DISPUTE UNTIL
TWO YEARS LATER IN 1969, AFTER THIS COURT'S DECISION IN BROTHERHOOD OF
RAILROAD TRAINMEN V. JACKSONVILLE TERMINAL CO., 394 U.S. 369 (1969). 
IN THAT CASE THE COURT CONSIDERED THE VALIDITY OF A STATE INJUNCTION
AGAINST PICKETING BY THE BLE AND OTHER UNIONS AT THE JACKSONVILLE
TERMINAL, LOCATED IMMEDIATELY NEXT TO MONCRIEF YARD.  THE COURT
REVIEWED THE FACTUAL SITUATION SURROUNDING THE JACKSONVILLE TERMINAL
PICKETING AND CONCLUDED THAT THE UNIONS HAD A FEDERALLY PROTECTED RIGHT
TO PICKET UNDER THE RAILWAY LABOR ACT, 44 STAT. 577, AS AMENDED, 45
U.S.C. 151 ET SEQ., AND THAT THAT RIGHT COULD NOT BE INTERFERED WITH BY
STATE COURT INJUNCTIONS.  IMMEDIATELY AFTER A PETITION FOR REHEARING
WAS DENIED IN THAT CASE, 394 U.S. 1024 (1969), THE RESPONDENT BLE FILED
A MOTION IN STATE COURT TO DISSOLVE THE MONCRIEF YARD INJUNCTION,
ARGUING THAT UNDER THE JACKSONVILLE TERMINAL DECISION THE INJUNCTION
WAS IMPROPER.  THE STATE JUDGE REFUSED TO DISSOLVE THE INJUNCTION,
HOLDING THAT THIS COURT'S JACKSONVILLE TERMINAL DECISION WAS NOT
CONTROLLING.  THE UNION DID NOT ELECT TO APPEAL THAT DECISION DIRECTLY,
BUT INSTEAD WENT BACK INTO THE FEDERAL COURT AND REQUESTED AN
INJUNCTION AGAINST THE ENFORCEMENT OF THE STATE COURT INJUNCTION.  THE
DISTRICT JUDGE GRANTED THE INJUNCTION AND UPON APPLICATION A STAY OF
THAT INJUNCTION, PENDING THE FILING AND DISPOSITION OF A PETITION FOR
CERTIORARI,WAS GRANTED.  396 U.S. 1201 (1969).  THE COURT OF APPEALS
SUMMARILY AFFIRMED ON THE PARTIES' STIPULATION, AND WE GRANTED A
PETITION FOR CERTIORARI TO CONSIDER THE VALIDITY OF THE FEDERAL COURT'S
INJUNCTION AGAINST THE STATE COURT.  396 U.S. 901 (1969). 

IN THIS COURT THE UNION CONTENDS THAT THE FEDERAL INJUNCTION WAS
PROPER EITHER "TO PROTECT OR EFFECTUATE" THE DISTRICT COURT'S DENIAL OF
AN INJUNCTION IN 1967, OR AS "NECESSARY IN AID OF" THE DISTRICT COURT'S
JURISDICTION.  ALTHOUGH THE QUESTIONS ARE BY NO MEANS SIMPLE AND CLEAR,
AND THE DECISION IS DIFFICULT, WE CONCLUDE THAT THE INJUNCTION AGAINST
THE STATE COURT WAS NOT JUSTIFIED UNDER EITHER OF THESE TWO EXCEPTIONS
TO THE ANTI-INJUNCTION STATUTE.  WE THEREFORE HOLD THAT THE FEDERAL
INJUNCTION IN THIS CASE WAS IMPROPER. 

        I 

BEFORE ANALYZING THE SPECIFIC LEGAL ARGUMENTS ADVANCED IN THIS CASE,
WE THINK IT WOULD BE HELPFUL TO DISCUSS THE BACKGROUND AND POLICY THAT
LED CONGRESS TO PASS THE ANTI-INJUNCTION STATUTE IN 1793.  WHILE ALL
THE REASONS THAT LED CONGRESS TO ADOPT THIS RESTRICTION ON FEDERAL
COURTS ARE NOT WHOLLY CLEAR, /3/  IT IS CERTAINLY LIKELY THAT ONE
REASON STEMMED FROM THE ESSENTIALLY FEDERAL NATURE OF OUR NATIONAL
GOVERNMENT.  WHEN THIS NATION WAS ESTABLISHED BY THE CONSTITUTION, EACH
STATE SURRENDERED ONLY A PART OF ITS SOVEREIGN POWER TO THE NATIONAL
GOVERNMENT.  BUT THOSE POWERS THAT WERE NOT SURRENDERED WERE RETAINED
BY THE STATES AND UNLESS A STATE WAS RESTRAINED BY "THE SUPREME LAW OF
THE LAND" AS EXPRESSED IN THE CONSTITUTION, LAWS, OR TREATIES OF THE
UNITED STATES, IT WAS FREE TO EXERCISE THOSE RETAINED POWERS AS IT SAW
FIT.  ONE OF THE RESERVED POWERS WAS THE MAINTENANCE OF STATE JUDICIAL
SYSTEMS FOR THE DECISION OF LEGAL CONTROVERSIES.  MANY OF THE FRAMERS
OF THE CONSTITUTION FELT THAT SEPARATE FEDERAL COURTS WERE UNNECESSARY
AND THAT THE STATE COURTS COULD BE ENTRUSTED TO PROTECT BOTH STATE AND
FEDERAL RIGHTS.  OTHERS FELT THAT A COMPLETE SYSTEM OF FEDERAL COURTS
TO TAKE CARE OF FEDERAL LEGAL PROBLEMS SHOULD BE PROVIDED FOR IN THE
CONSTITUTION ITSELF.  THIS DISPUTE RESULTED IN COMPROMISE.  ONE
"SUPREME COURT" WAS CREATED BY THE CONSTITUTION, AND CONGRESS WAS GIVEN
THE POWER TO CREATE OTHER FEDERAL COURTS.  IN THE FIRST CONGRESS THIS
POWER WAS EXERCISED AND A SYSTEM OF FEDERAL TRIAL AND APPELLATE COURTS
WITH LIMITED JURISDICTION WAS CREATED BY THE JUDICIARY ACT OF 1789, 1
STAT. 73. 

WHILE THE LOWER FEDERAL COURTS WERE GIVEN CERTAIN POWERS IN THE 1789
ACT, THEY WERE NOT GIVEN ANY POWER TO REVIEW DIRECTLY CASES FROM STATE
COURTS, AND THEY HAVE NOT BEEN GIVEN SUCH POWERS SINCE THAT TIME.  ONLY
THE SUPREME COURT WAS AUTHORIZED TO REVIEW ON DIRECT APPEAL THE
DECISIONS OF STATE COURTS.  THUS FROM THE BEGINNING WE HAVE HAD IN THIS
COUNTRY TWO ESSENTIALLY SEPARATE LEGAL SYSTEMS.  EACH SYSTEM PROCEEDS
INDEPENDENTLY OF THE OTHER WITH ULTIMATE REVIEW IN THIS COURT OF THE
FEDERAL QUESTIONS RAISED IN EITHER SYSTEM.  UNDERSTANDABLY THIS DUAL
COURT SYSTEM WAS BOUND TO LEAD TO CONFLICTS AND FRICTIONS.  LITIGANTS
WHO FORESAW THE POSSIBILITY OF MORE FAVORABLE TREATMENT IN ONE OR THE
OTHER SYSTEM WOULD PREDICTABLY HASTEN TO INVOKE THE POWERS OF WHICHEVER
COURT IT WAS BELIEVED WOULD PRESENT THE BEST CHANCE OF SUCCESS. 
OBVIOUSLY THIS DUAL SYSTEM COULD NOT FUNCTION IF STATE AND FEDERAL
COURTS WERE FREE TO FIGHT EACH OTHER FOR CONTROL OF A PARTICULAR CASE. 
THUS, IN ORDER TO MAKE THE DUAL SYSTEM WORK AND "TO PREVENT NEEDLESS
FRICTION BETWEEN STATE AND FEDERAL COURTS," OKLAHOMA PACKING CO. V. GAS
CO., 309 U.S. 4, 9 (1940), IT WAS NECESSARY TO WORK OUT LINES OF
DEMARCATION BETWEEN THE TWO SYSTEMS.  SOME OF THESE LIMITS WERE SPELLED
OUT IN THE 1789 ACT.  OTHERS HAVE BEEN ADDED BY LATER STATUTES AS WELL
AS JUDICIAL DECISIONS.  THE 1793 ANTI-INJUNCTION ACT WAS AT LEAST IN
PART A RESPONSE TO THESE PRESSURES. 

ON ITS FACE THE PRESENT ACT IS AN ABSOLUTE PROHIBITION AGAINST
ENJOINING STATE COURT PROCEEDINGS, UNLESS THE INJUNCTION FALLS WITHIN
ONE OF THREE SPECIFICALLY DEFINED EXCEPTIONS.  THE RESPONDENTS HERE
HAVE INTIMATED THAT THE ACT ONLY ESTABLISHES A "PRINCIPLE OF COMITY,"
NOT A BINDING RULE ON THE POWER OF THE FEDERAL COURTS.  THE ARGUMENT
IMPLIES THAT IN CERTAIN CIRCUMSTANCES A FEDERAL COURT MAY ENJOIN STATE
COURT PROCEEDINGS EVEN IF THAT ACTION CANNOT BE JUSTIFIED BY ANY OF THE
THREE EXCEPTIONS.  WE CANNOT ACCEPT ANY SUCH CONTENTION.  IN 1955 WHEN
THIS COURT INTERPRETED THIS STATUTE, IT STATED:  "THIS IS NOT A STATUTE
CONVEYING A BROAD GENERAL POLICY FOR APPROPRIATE AD HOC APPLICATION. 
LEGISLATIVE POLICY IS HERE EXPRESSED IN A CLEAR-CUT PROHIBITION
QUALIFIED ONLY BY SPECIFICALLY DEFINED EXCEPTIONS."  AMALGAMATED
CLOTHING WORKERS V. RICHMAN BROS., 348 U.S. 511, 515-516 (1955).  SINCE
THAT TIME CONGRESS HAS NOT SEEN FIT TO AMEND THE STATUTE AND WE
THEREFORE ADHERE TO THAT POSITION AND HOLD THAT ANY INJUNCTION AGAINST
STATE COURT PROCEEDINGS OTHERWISE PROPER UNDER GENERAL EQUITABLE
PRINCIPLES MUST BE BASED ON ONE OF THE SPECIFIC STATUTORY EXCEPTIONS TO
SEC. 2283 IF IT IS TO BE UPHELD.  MOREOVER SINCE THE STATUTORY
PROHIBITION AGAINST SUCH INJUNCTIONS IN PART RESTS ON THE FUNDAMENTAL
CONSTITUTIONAL INDEPENDENCE OF THE STATES AND THEIR COURTS, THE
EXCEPTIONS SHOULD NOT BE ENLARGED BY LOOSE STATUTORY CONSTRUCTION. 
PROCEEDINGS IN STATE COURTS SHOULD NORMALLY BE ALLOWED TO CONTINUE
UNIMPAIRED BY INTERVENTION OF THE LOWER FEDERAL COURTS, WITH RELIEF
FROM ERROR, IF ANY, THROUGH THE STATE APPELLATE COURTS AND ULTIMATELY
THIS COURT. 

        II 

IN THIS CASE THE FLORIDA CIRCUIT COURT ENJOINED THE UNION'S INTENDED
PICKETING, AND THE UNITED STATES DISTRICT COURT ENJOINED THE RAILROAD
"FROM GIVING EFFECT TO OR AVAILING (ITSELF) OF THE BENEFITS OF" THAT
STATE COURT ORDER.  APP. 196.  BOTH SIDES AGREE THAT ALTHOUGH THIS
FEDERAL INJUNCTION IS IN TERMS DIRECTED ONLY AT THE RAILROAD IT IS AN
INJUNCTION "TO STAY PROCEEDINGS IN A STATE COURT."  IT IS SETTLED THAT
THE PROHIBITION OF SEC. 2283 CANNOT BE EVADED BY ADDRESSING THE ORDER
TO THE PARTIES OR PROHIBITING UTILIZATION OF THE RESULTS OF A COMPLETED
STATE PROCEEDING.  ILLAHOMA PACKING CO. V. GAS CO., 309 U.S. 4, 9
(1940); HILL V. MARTIN, 296 U.S. 393, 403 (1935).  THUS IF THE
INJUNCTION AGAINST THE FLORIDA COURT PROCEEDINGS IS TO BE UPHELD, IT
MUST BE "EXPRESSLY AUTHORIZED BY ACT OF CONGRESS," "NECESSARY IN AID OF
(THE DISTRICT COURT'S) JURISDICTION," OR "TO PROTECT OR EFFECTUATE
(THAT COURT'S) JUDGMENTS." 

NEITHER PARTY ARGUES THAT THERE IS ANY EXPRESS CONGRESSIONAL
AUTHORIZATION FOR INJUNCTIONS IN THIS SITUATION AND WE AGREE WITH THAT
CONCLUSION.  THE RESPONDENT UNION DOES NOT CONTEND THAT THE INJUNCTION
WAS PROPER EITHER AS A MEANS TO PROTECT OR EFFECTUATE THE DISTRICT
COURT'S 1967 ORDER, OR IN AID OF THAT COURT'S JURISDICTION.  WE DO NOT
THINK THAT EITHER ALLEGED BASIS CAN BE SUPPORTED. 

        A 

THE ARGUMENT BASED ON PROTECTING THE 1967 ORDER IS NOT CLEARLY
EXPRESSED, BUT IN ESSENCE IT APPEARS TO RUN AS FOLLOWS:  IN 1967 THE
RAILROAD SOUGHT A TEMPORARY RESTRAINING ORDER WHICH THE UNION OPPOSED. 
IN THE COURSE OF DECIDING THAT REQUEST, THE UNITED STATES DISTRICT
COURT DETERMINED THAT THE UNION HAD A FEDERALLY PROTECTED RIGHT TO
PICKET MONCRIEF YARD AND THAT THIS RIGHT COULD NOT BE INTERFERED WITH
BY STATE COURTS.  WHEN THE FLORIDA CIRCUIT COURT ENJOINED THE
PICKETING, THE UNITED STATES DISTRICT COURT COULD, IN ORDER TO PROTECT
AND EFFECTUATE ITS PRIOR DETERMINATION, ENJOIN ENFORCEMENT OF THE STATE
COURT INJUNCTION.  ALTHOUGH THE RECORD ON THIS POINT IS NOT
UNAMBIGUOUSLY CLEAR, WE CONCLUDE THAT NO SUCH INTERPRETATION OF THE
1967 ORDER CAN BE SUPPORTED. 

WHEN THE RAILROAD INITIATED THE FEDERAL SUIT IT FILED A COMPLAINT
WITH THREE COUNTS, EACH BASED ENTIRELY ON ALLEGED VIOLATIONS OF FEDERAL
LAW.  THE FIRST TWO COUNTS ALLEGED VIOLATIONS OF THE RAILWAY LABOR ACT,
45 U.S.C. 153 ET SEQ., AND THE THIRD ALLEGED A VIOLATION OF THAT ACT
AND THE INTERSTATE COMMERCE ACT AS WELL.  EACH OF THE COUNTS CONCLUDED
WITH A PRAYER FOR AN INJUNCTION AGAINST THE PICKETING.  ALTHOUGH THE
UNION HAD NOT BEEN FORMALLY SERVED WITH THE COMPLAINT AND HAD NOT FILED
AN ANSWER, IT APPEARED AT A HEARING ON A MOTION FOR A TEMPORARY
RESTRAINING ORDER AND ARGUED AGAINST THE ISSUANCE OF SUCH AN ORDER. 
THE UNION ARGUED THAT IT WAS A PARTY TO A LABOR DISPUTE WITH THE FEC,
THAT IT HAD EXHAUSTED THE ADMINISTRATIVE REMEDIES REQUIRED BY THE
RAILWAY LABOR ACT, AND THAT IT WAS THUS FREE TO ENGAGE IN "SELF-HELP,"
OR CONCERTED ECONOMIC ACTIVITY.  THEN THE UNION ARGUED THAT SUCH
ACTIVITY COULD NOT BE ENJOINED BY THE FEDERAL COURT.  IN AN ATTEMPT TO
CLARIFY THE BASIS OF THIS ARGUMENT THE DISTRICT JUDGE ASKED:  "YOU ARE
BASING YOUR CASE SOLELY ON THE NORRIS-LAGUARDIA ACT?"  THE UNION'S
LAWYER REPLIED:  "RIGHT.  I THINK AT THIS POINT OF THE ARGUMENT, SINCE
NORRIS-LAGUARDIA IS CLEARLY IN POINT HERE."  APP. 63.  AT NO POINT
DURING THE ENTIRE ARGUMENT DID EITHER SIDE REFER TO STATE LAW, THE
EFFECTS OF THAT LAW ON THE PICKETING, OR THE POSSIBLE PRECLUSION OF
STATE REMEDIES AS A RESULT OF OVERRIDING FEDERAL LAW.  THE NEXT DAY THE
DISTRICT COURT ENTERED AN ORDER DENYING THE REQUESTED RESTRAINING
ORDER.  IN RELEVANT PART THAT ORDER INCLUDED THESE CONCLUSIONS OF LAW: 

     "3.  THE PARTIES TO THE BLE-FEC 'MAJOR DISPUTE,' HAVING

  EXHAUSTED THE PROCEDURES OF THE RAILWAY LABOR ACT, 45 U.S.C. 151,

  ET SEQ., ARE NOW FREE TO ENGAGE IN SELF-HELP . . . . 

      "4.  THE CONDUCT OF THE FEC PICKETS AND THAT OF THE
RESPONDING

  ACL EMPLOYEES ARE A PART OF THE FEC-BLE MAJOR DISPUTE . . . .

        .          .          .          . 

     "7.  THE NORRIS-LAGUARDIA ACT, 29 U.S.C. 101, AND THE CLAYTON

  ACT, 29 U.S.C. 52, ARE APPLICABLE TO THE CONDUCT OF THE

  DEFENDANTS HERE INVOLVED."  APP. 67. 

IN THIS COURT THE UNION ASSERTS THAT THE DETERMINATION THAT IT WAS
"FREE TO ENGAGE IN SELF-HELP" WAS A DETERMINATION THAT IT HAD A
FEDERALLY PROTECTED RIGHT TO PICKET AND THAT STATE LAW COULD NOT BE
INVOKED TO NEGATE THAT RIGHT.  THE RAILROAD, ON THE OTHER HAND, ARGUES
THAT THE ORDER MERELY DETERMINED THAT THE FEDERAL COURT COULD NOT
ENJOIN THE PICKETING, IN LARGE PART BECAUSE OF THE GENERAL PROHIBITION
IN THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C. 101 ET SEQ.,
AGAINST ISSUANCE BY FEDERAL COURTS OF INJUNCTIONS IN LABOR DISPUTES. 
BASED SOLELY ON THE STATE OF THE RECORD WHEN THE ORDER WAS ENTERED, WE
ARE INCLINED TO BELIEVE THAT THE DISTRICT COURT DID NOT DETERMINE
WHETHER FEDERAL LAW PRECLUDED AN INJUNCTION BASED ON STATE LAW.  NOT
ONLY WAS THAT POINT NEVER ARGUED TO THE COURT, BUT THERE IS NO LANGUAGE
IN THE ORDER THAT NECESSARILY IMPLIES ANY DECISION ON THAT QUESTION. 
IN SHORT WE FEEL THAT THE DISTRICT COURT IN 1967 DETERMINED THAT
FEDERAL LAW COULD NOT BE INVOKED TO ENJOIN THE PICKETING AT MONCRIEF
YARD, AND THAT THE UNION DID HAVE A RIGHT "TO ENGAGE IN SELF-HELP" AS
FAR AS THE FEDERAL COURTS WERE CONCERNED.  BUT THAT DECISION IS
ENTIRELY DIFFERENT FROM A DECISION THAT THE RAILWAY LABOR ACT PRECLUDES
STATE REGULATION OF THE PICKETING AS WELL, AND THIS LATTER DECISION IS
AN ESSENTIAL PREREQUISITE FOR UPHOLDING THE 1969 INJUNCTION AS
NECESSARY "TO PROTECT OR EFFECTUATE"  THE 1967 ORDER.  FINALLY WE THINK
IT HIGHLY UNLIKELY THAT THE BRIEF STATEMENTS IN THE ORDER CONCEAL A
DETERMINATION OF A DISPUTED LEGAL POINT THAT LATER WAS TO DIVIDE THIS
COURT IN A 4-TO-3 VOTE IN JACKSONVILLE TERMINAL, SUPRA, IN OPINIONS
TOTALING 28 PAGES.  WHILE JUDICIAL WRITING MAY SOMETIMES BE THOUGHT
CRYPTIC AND TIGHTLY PACKED, THE UNION'S CONTENTION HERE STRETCHES THE
CONTENT OF THE WORDS WELL BEYOND THE LIMITS OF REASONABLENESS. 

ANY LINGERING DOUBTS WE MIGHT HAVE AS TO THE PROPER INTERPRETATION
OF THE 1967 ORDER ARE SETTLED BY REFERENCES TO THE POSITIONS ADOPTED BY
THE PARTIES LATER IN THE LITIGATION.  IN RESPONSE TO THE RAILROAD'S
REQUEST FOR A TEMPORARY RESTRAINING ORDER FROM THE STATE COURT, THE
UNION REFERRED TO THE PRIOR FEDERAL LITIGATION, NOTED THAT IT WAS PART
OF A "MAJOR DISPUTE," THAT IT WAS COVERED BY SEC. 20 OF THE CLAYTON
ACT, 38 STAT. 738, 29 U.S.C. 52 AND THAT "(LABOR ACTIVITY WHICH IS
WITHIN THE CLAYTON ACT IS 'IMMUNIZED TRADE UNION ACTIVITIES.'  UNITED
STATES V. HUTCHESON, 312 U.S. 219, AT PAGES 235-236."  /4/  2 RECORD
105.  AT NO POINT DID THE UNION APPEAR TO ARGUE THAT THE FEDERAL COURT
HAD ALREADY DETERMINED THAT THE RAILROAD WAS PRECLUDED FROM OBTAINING
AN INJUNCTION UNDER FLORIDA LAW. 

SIMILARLY THE UNION'S ARGUMENTS IN 1969 INDICATE THAT THE 1967
FEDERAL ORDER DID NOT DETERMINE WHETHER FEDERAL LAW PRECLUDED RESORT TO
THE STATE COURTS.  WHEN THE UNION TRIED TO DISSOLVE THE STATE COURT
INJUNCTION, THE ARGUMENT WAS BASED ENTIRELY ON THE CONTROLLING EFFECT
OF THE JACKSONVILLE TERMINAL DECISION ON THE PICKETING AT MONCRIEF
YARD.  THE UNION ARGUED THAT THIS COURT'S "DECISION IS SQUARELY
CONTROLLING UPON (THE MONCRIEF YARD) CASE WHICH IS IDENTICAL IN ALL
MATERIAL RESPECTS."  2 RECORD 123; SEE ALSO ID., AT 149-176.  ALTHOUGH
THE UNION AGAIN MENTIONED THAT THE FEDERAL DISTRICT JUDGE HAD
DETERMINED IN 1967 THAT IT WAS FREE TO ENGAGE IN SELF-HELP, IT NEVER
ARGUED THAT THE 1967 ORDER HAD IN EFFECT HELD WITH RESPECT TO MONCRIEF
YARD WHAT THIS COURT LATER HELD WAS THE LAW WITH RESPECT TO THE
JACKSONVILLE TERMINAL SITUATION.  THE RAILROAD ARGUED THAT JACKSONVILLE
TERMINAL WAS NOT CONTROLLING, AND THE FLORIDA JUDGE AGREED.  /5/ 

OUR READING OF THIS RECORD IS NOT ALTERED BY THE DISTRICT COURT'S
1969 OPINION ISSUED WHEN THE INJUNCTION WAS GRANTED TWO YEARS AFTER THE
1967 ORDER WAS ENTERED.  IN THAT OPINION THE COURT SAID: 

     "IN ITS ORDER OF APRIL 26, 1967, THIS COURT FOUND THAT

  PLAINTIFF'S MONCRIEF YARD, THE AREA IN QUESTION, 'IS AN INTEGRAL

  AND NECESSARY PART OF (FLORIDA EAST COAST RAILWAY COMPANY'S)

  OPERATIONS' . . . . THE COURT CONCLUDED FURTHERMORE THAT

  DEFENDANTS HEREIN 'ARE NOW FREE TO ENGAGE IN SELF-HELP' . . . .

  THE INJUNCTION OF THE STATE COURT, IF ALLOWED TO CONTINUE IN

  FORCE, WOULD EFFECTIVELY NULLIFY THIS COURT'S FINDINGS AND

  DELINEATION OF RIGHTS OF THE PARTIES.  THE CATEGORIZATION OF

  DEFENDANTS' ACTIVITIES AS 'SECONDARY' DOES NOT ALTER THIS STATE

OF AFFAIRS.  SEE BROTHERHOOD OF R.R. TRAINMEN V. JACKSONVILLE

  TERMINAL CO., . . . U.S. . . . , 22 L.ED.2D 344 (1969).  THE

  PROHIBITION OF 28 U.S.C. 2283, THEREFORE, DOES NOT DEPRIVE THIS

  COURT OF JURISDICTION TO ENTER THE INJUNCTION IN THIS INSTANCE." 

  APP. 195-196. 

WE THINK THE PROPER INTERPRETATION OF THAT SOMEWHAT AMBIGUOUS PASSAGE
CAN BE REACHED ONLY WHEN IT IS CONSIDERED IN LIGHT OF THE ARGUMENTS
PRESENTED TO THE DISTRICT COURT BY THE UNION.  IN ARGUING THAT AN
INJUNCTION WAS NECESSARY TO PROTECT THE 1967 ORDER, THE UNION'S LAWYER
SAID:  "NOW, THE BASIC FINDING (OF THAT ORDER) IS THAT WE ARE FREE TO
ENGAGE IN SUCH SELF-HELP AS IS PERMITTED UNDER THE RAILWAY LABOR ACT. 
NOW, YOUR HONOR, AT THAT POINT, DID NOT GET TO THE QUESTION OF HOW
BROAD IS THIS RIGHT, BECAUSE THE NORRIS-LAGUARDIA ACT PREVENTED YOUR
HONOR FROM ISSUING AN INJUNCTION.  NOW, HOW BROAD, THEN, IS THAT
RIGHT?  WE KNOW, FROM THE (JACKSONVILLE TERMINAL) DECISION . . . ."  1
RECORD 249.  THE LAWYER THEN PROCEEDED TO ARGUE THAT THE JACKSONVILLE
TERMINAL CASE HAD CLEARLY REVEALED THAT THE RIGHT OF SELF-HELP IS
BEYOND STATE COURT PROSCRIPTION IN THESE CIRCUMSTANCES.  AT NO POINT
DURING THIS HEARING DID THE UNION TRY TO ARGUE, AS IT NOW APPEARS TO
DO, THAT THE 1967 ORDER ITSELF HAD ANTICIPATED THE JACKSONVILLE
TERMINAL DECISION.  RATHER THE UNION APPEARS TO HAVE ARGUED THAT THE
DECISION OF THIS COURT IN JACKSONVILLE TERMINAL OPERATED TO DEFINE THE
SCOPE OF THE RIGHT TO SELF-HELP WHICH THE DISTRICT COURT HAD FOUND THE
UNION ENTITLED TO EXERCISE, AND THAT THE STATE COURT INJUNCTION
INTERFERED WITH THAT RIGHT AS SO DEFINED.  CONSIDERED IN THIS LIGHT WE
CANNOT AGREE WITH THE DISSENTING VIEW IN THIS CASE THAT THE DISTRICT
COURT IN 1967 "BY NECESSARY IMPLICATION"  DECIDED THAT THE UNION HAD A
FEDERALLY PROTECTED RIGHT TO PICKET THAT "COULD NOT BE SUBVERTED BY
RESORT TO STATE PROCEEDINGS."  POST, AT 299.  ON THE CONTRARY, WE READ
THE QUOTED PASSAGE IN THE 1969 OPINION AS AN INDICATION THAT THE
DISTRICT COURT ACCEPTED THE UNION'S ARGUMENT AND CONCLUDED THAT THE
JACKSONVILLE TERMINAL DECISION HAD AMPLIFIED ITS 1967 ORDER, AND IT WAS
THIS AMPLIFICATION, RATHER THAN THE ORIGINAL ORDER ITSELF, THAT
REQUIRED PROTECTION.  SUCH A MODIFICATION OF AN EARLIER ORDER THROUGH
AN OPINION IN ANOTHER CASE IS NOT A "JUDGMENT"  THAT CAN PROPERLY BE
PROTECTED BY AN INJUNCTION AGAINST STATE COURT PROCEEDINGS. 

THIS RECORD, WE THINK, CONCLUSIVELY SHOWS THAT NEITHER THE PARTIES
THEMSELVES NOR THE DISTRICT COURT CONSTRUED THE 1967 ORDER AS THE UNION
NOW CONTENDS IT SHOULD BE CONSTRUED.  RATHER WE ARE CONVINCED THAT THE
UNION IN EFFECT TRIED TO GET THE FEDERAL DISTRICT COURT TO DECIDE THAT
THE STATE COURT JUDGE WAS WRONG IN DISTINGUISHING THE JACKSONVILLE
TERMINAL DECISION.  SUCH AN ATTEMPT TO SEEK APPELLATE REVIEW OF A STATE
DECISION IN THE FEDERAL DISTRICT COURT CANNOT BE JUSTIFIED AS NECESSARY
"TO PROTECT OR EFFECTUATE" THE 1967 ORDER.  THE RECORD SIMPLY WILL NOT
SUPPORT THE UNION'S CONTENTION ON THIS POINT. 

        B 

THIS BRINGS US TO THE SECOND PRONG OF THE UNION'S ARGUMENT IN WHICH
IT IS SUGGESTED THAT EVEN IF THE 1967 ORDER DID NOT DETERMINE THE
UNION'S RIGHT TO PICKET FREE FROM STATE INTERFERENCE, ONCE THE DECISION
IN JACKSONVILLE TERMINAL WAS ANNOUNCED, THE DISTRICT COURT WAS THEN
FREE TO ENJOIN THE STATE COURT ON THE THEORY THAT SUCH ACTION WAS
"NECESSARY IN AID OF (THE DISTRICT COURT'S) JURISDICTION."  AGAIN THE
ARGUMENT IS SOMEWHAT UNCLEAR, BUT IT APPEARS TO GO IN THIS WAY:  THE
DISTRICT COURT HAD ACQUIRED JURISDICTION OVER THE LABOR CONTROVERSY IN
1967 WHEN THE RAILROAD FILED ITS COMPLAINT, AND IT DETERMINED AT THAT
TIME THAT IT DID HAVE JURISDICTION.  THE DISPUTE INVOLVED THE LEGALITY
OF PICKETING BY THE UNION AND THE JACKSONVILLE TERMINAL DECISION
CLEARLY INDICATED THAT SUCH ACTIVITY WAS NOT ONLY LEGAL, BUT WAS
PROTECTED FROM STATE COURT INTERFERENCE.  THE STATE COURT HAD
INTERFERED WITH THAT RIGHT, AND THUS A FEDERAL INJUNCTION WAS
"NECESSARY IN AID OF ITS JURISDICTION."  FOR SEVERAL REASONS WE CANNOT
ACCEPT THE CONTENTION.  /6/ 

FIRST, A FEDERAL COURT DOES NOT HAVE INHERENT POWER TO IGNORE THE
LIMITATIONS OF SEC. 2283 AND TO ENJOIN STATE COURT PROCEEDINGS MERELY
BECAUSE THOSE PROCEEDINGS INTERFERE WITH A PROTECTED FEDERAL RIGHT OR
INVADE AN AREA PREEMPTED BY FEDERAL LAW, EVEN WHEN THE INTERFERENCE IS
UNMISTAKABLY CLEAR.  THIS RULE APPLIES REGARDLESS OF WHETHER THE
FEDERAL COURT ITSELF HAS JURISDICTION OVER THE CONTROVERSY, OR WHETHER
IT IS OUSTED FROM JURISDICTION FOR THE SAME REASON THAT THE STATE COURT
IS.  CF. AMALGAMATED CLOTHING WORKERS V. RICHMAN BROS., SUPRA, AT 519
520.  THIS CONCLUSION IS REQUIRED BECAUSE CONGRESS ITSELF SET FORTH THE
ONLY EXCEPTIONS TO THE STATUTE, AND THOSE EXCEPTIONS DO NOT INCLUDE
THIS SITUATION.  SECOND, IF THE DISTRICT COURT DOES HAVE JURISDICTION,
IT IS NOT ENOUGH THAT THE REQUESTED INJUNCTION IS RELATED TO THAT
JURISDICTION, BUT IT MUST BE "NECESSARY IN AID OF" THAT JURISDICTION. 
WHILE THIS LANGUAGE IS ADMITTEDLY BROAD, WE CONCLUDE THAT IT IMPLIES
SOMETHING SIMILAR TO THE CONCEPT OF INJUNCTIONS TO "PROTECT OR
EFFECTUATE" JUDGMENTS.  BOTH EXCEPTIONS TO THE GENERAL PROHIBITION OF
SEC. 2283 IMPLY THAT SOME FEDERAL INJUNCTIVE RELIEF MAY BE NECESSARY TO
PREVENT A STATE COURT FROM SO INTERFERING WITH A FEDERAL COURT'S
CONSIDERATION OR DISPOSITION OF A CASE AS TO SERIOUSLY IMPAIR THE
FEDERAL COURT'S FLEXIBILITY AND AUTHORITY TO DECIDE THAT CASE.  THIRD,
NO SUCH SITUATION IS PRESENTED HERE.  ALTHOUGH THE FEDERAL COURT DID
HAVE JURISDICTION OF THE RAILROAD'S COMPLAINT BASED ON FEDERAL LAW, THE
STATE COURT ALSO HAD JURISDICTION OVER THE COMPLAINT BASED ON STATE LAW
AND THE UNION'S ASSERTED FEDERAL DEFENSE AS WELL.  JACKSONVILLE
TERMINAL, SUPRA, AT 375-377, 390.  WHILE THE RAILROAD COULD PROBABLY
HAVE BASED ITS FEDERAL CASE ON THE PENDENT STATE LAW CLAIMS AS WELL,
UNITED MINE WORKERS V. GIBBS, 383 U.S. 715 (1966), IT WAS FREE TO
REFRAIN FROM DOING SO AND LEAVE THE STATE LAW QUESTIONS AND THE RELATED
ISSUE CONCERNING PRECLUSION OF STATE REMEDIES BY FEDERAL LAW TO THE
STATE COURTS.  CONVERSELY, ALTHOUGH IT COULD HAVE TENDERED ITS FEDERAL
CLAIMS TO THE STATE COURT, IT WAS ALSO FREE TO RESTRICT THE STATE
COMPLAINT TO STATE GROUNDS ALONE.  CF. ENGLAND V. LOUISIANA STATE BOARD
OF MEDICAL EXAMINERS, 375 U.S. 411 (1964).  IN SHORT, THE STATE AND
FEDERAL COURTS HAD CONCURRENT JURISDICTION IN THIS CASE, AND NEITHER
COURT WAS FREE TO PREVENT EITHER PARTY FROM SIMULTANEOUSLY PURSUING
CLAIMS IN BOTH COURTS.  KLINE V. BURKE CONST. CO., 260 U.S. 226 (1922);
CF. DONOVAN V. DALLAS, 377 U.S. 408 (1964).  THEREFORE THE STATE
COURT'S ASSUMPTION OF JURISDICTION OVER THE STATE LAW CLAIMS AND THE
FEDERAL PRECLUSION ISSUE DID NOT HINDER THE FEDERAL COURT'S
JURISDICTION SO AS TO MAKE AN INJUNCTION NECESSARY TO AID THAT
JURISDICTION.  NOR WAS AN INJUNCTION NECESSARY BECAUSE THE STATE COURT
MAY HAVE TAKEN ACTION WHICH THE FEDERAL COURT WAS CERTAIN WAS IMPROPER
UNDER THE JACKSONVILLE TERMINAL DECISION.  AGAIN, LOWER FEDERAL COURTS
POSSESS NO POWER WHATEVER TO SIT IN DIRECT REVIEW OF STATE COURT
DECISIONS.  IF THE UNION WAS ADVERSELY AFFECTED BY THE STATE COURT'S
DECISION, IT WAS FREE TO SEEK VINDICATION OF ITS FEDERAL RIGHT IN THE
FLORIDA APPELLATE COURTS AND ULTIMATELY, IF NECESSARY, IN THIS COURT. 
SIMILARLY IF, BECAUSE OF THE FLORIDA CIRCUIT COURT'S ACTION, THE UNION
FACED THE THREAT OF IMMEDIATE IRREPARABLE INJURY SUFFICIENT TO JUSTIFY
AN INJUNCTION UNDER USUAL EQUITABLE PRINCIPLES, IT WAS UNDOUBTEDLY FREE
TO SEEK SUCH RELIEF FROM THE FLORIDA APPELLATE COURTS, AND MIGHT
POSSIBLY IN CERTAIN EMERGENCY CIRCUMSTANCES SEEK SUCH RELIEF FROM THIS
COURT AS WELL.  CF. NATURAL GAS CO. V. PUBLIC SERV. COMM'N, 294 U.S.
698 (1935); UNITED STATES V. MOSCOW FIRE INS. CO., 308 U.S. 542 (1939);
R. ROBERTSON & F. KIRKHAM, JURISDICTION OF THE SUPREME COURT SEC. 441
(R. WOLFSON & P. KURLAND ED. 1951).  UNLIKE THE FEDERAL DISTRICT COURT,
THIS COURT DOES HAVE POTENTIAL APPELLATE JURISDICTION OVER FEDERAL
QUESTIONS RAISED IN STATE COURT PROCEEDINGS, AND THAT BROADER
JURISDICTION ALLOWS THIS COURT CORRESPONDINGLY BROADER AUTHORITY TO
ISSUE INJUNCTIONS "NECESSARY IN AID OF ITS JURISDICTION." 

        III 

THIS CASE IS BY NO MEANS AN EASY ONE.  THE ARGUMENTS IN SUPPORT OF
THE UNION'S CONTENTIONS ARE NOT INSUBSTANTIAL.  BUT WHATEVER DOUBTS WE
MAY HAVE ARE STRONGLY AFFECTED BY THE GENERAL PROHIBITION OF SEC.
2283.  ANY DOUBTS AS TO THE PROPRIETY OF A FEDERAL INJUNCTION AGAINST
STATE COURT PROCEEDINGS SHOULD BE RESOLVED IN FAVOR OF PERMITTING THE
STATE COURTS TO PROCEED IN AN ORDERLY FASHION TO FINALLY DETERMINE THE
CONTROVERSY.  THE EXPLICIT WORDING OF SEC. 2283 ITSELF IMPLIES AS MUCH,
AND THE FUNDAMENTAL PRINCIPLE OF A DUAL SYSTEM OF COURTS LEADS
INEVITABLY TO THAT CONCLUSION.     THE INJUNCTION ISSUED BY THE
DISTRICT COURT MUST BE VACATED.  SINCE THAT COURT HAS NOT YET PROCEEDED
TO A FINAL JUDGMENT IN THE CASE, THE CAUSE IS REMANDED TO IT FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  AFTER THIS SUIT WAS INSTITUTED ACL MERGED WITH THE SEABOARD AIR
LINE RAILROAD CO. TO FORM THE PRESENT SEABOARD COAST LINE RAILROAD CO.
WE WILL CONTINUE, AS HAVE THE PARTIES, TO REFER TO THE PETITIONER AS
ACL. 

/2/  THERE IS NO PRESENT LABOR DISPUTE BETWEEN THE ACL AND THE BLE
OR ANY OTHER ACL EMPLOYEES.  ACL BECAME INVOLVED IN THIS CASE AS A
RESULT OF A LABOR DISPUTE BETWEEN THE FLORIDA EAST COAST RAILWAY CO.
(FEC) AND ITS EMPLOYEES.  FEC CARS ARE HAULED INTO AND OUT OF MONCRIEF
YARD AND SWITCHED AROUND TO MAKE UP TRAINS IN THAT YARD.  THE BLE
PICKETED THE YARD, ENCOURAGING ACL EMPLOYEES NOT TO HANDLE ANY FEC
CARS. 

THE INITIAL DEVELOPMENT OF THE CONTROVERSY IS CHRONICLED IN RAILWAY
CLERKS V. FLORIDA E.C.R. CO., 384 U.S. 238 (1966).  SEE ALSO, RAILROAD
TRAINMEN V. ATLANTIC C.L.R. CO., 362 F.2D 649 (C.A. 5TH CIR.), AFF'D BY
AN EQUALLY DIVIDED COURT, 385 U.S. 20 (1966); FLORIDA E.C.R. CO. V.
RAILROAD TRAINMEN, 336 F.2D 172 (C.A. 5TH CIR. 1964). 

/3/  SEE THE HISTORICAL DISCUSSION OF THE ORIGIN OF THE 1793 STATUTE
IN TOUCEY V. N.Y. LIFE INS. CO., 314 U.S. 118, 129-132 (1941). 

/4/  THE HUTCHESON CASE HELD THAT PROTECTED UNION ACTIVITY WOULD NOT
BE DEEMED VIOLATIVE OF FEDERAL ANTITRUST LAW. 

/5/  FOR PURPOSES OF THIS CASE ONLY, WE WILL ASSUME, WITHOUT
DECIDING, THAT THE FLORIDA CIRCUIT COURT'S DECISION WAS WRONG IN LIGHT
OF OUR DECISION IN JACKSONVILLE TERMINAL. 

/6/  THE UNION ALSO ARGUES THAT THE 1969 INJUNCTION WAS AN AID TO
THE FEDERAL COURT'S JURISDICTION IN OTHER PENDING CASES ARISING OUT OF
THIS SAME LABOR DISPUTE.  THIS ARGUMENT WAS NOT RAISED IN THE DISTRICT
COURT AND WE NEED NOT CONSIDER IT.  IN ANY EVENT THE REASONS FOR
REJECTING THE ARGUMENT WITH RESPECT TO THE 1967 ORDER APPLY EQUALLY
WELL TO ARGUMENTS RELATING TO ANY OTHER ORDERS, CASES, OR JUDGMENTS THE
UNION HAS ADVANCED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION ON THE UNDERSTANDING THAT ITS HOLDING
IMPLIES NO RETREAT FROM BROTHERHOOD OF RAILROAD TRAINMEN V.
JACKSONVILLE TERMINAL CO., 394 U.S. 369 (1969).  WHETHER OR NOT THAT
CASE CONTROLS THE UNDERLYING CONTROVERSY HERE IS A QUESTION THAT WILL
ARISE ONLY ON REVIEW OF ANY FINAL JUDGMENT ENTERED IN THE STATE COURT
PROCEEDINGS RESPECTING THAT CONTROVERSY. 

MR.JUSTICE BRENNAN, WITH WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

MY DISAGREEMENT WITH THE COURT IN THIS CASE IS A RELATIVELY NARROW
ONE.  I DO NOT DISAGREE WITH MUCH THAT IS SAID CONCERNING THE HISTORY
AND POLICIES UNDERLYING 28 U.S.C. 2283.  NOR DO I DISPUTE THE COURT'S
HOLDING ON THE BASIS OF AMALGAMATED CLOTHING WORKERS V. RICHMAN BROS.,
348 U.S. 511 (1955), THAT FEDERAL COURTS DO NOT HAVE AUTHORITY TO
ENJOIN STATE PROCEEDINGS MERELY BECAUSE IT IS ASSERTED THAT THE STATE
COURT IS IMPROPERLY ASSERTING JURISDICTION IN AN AREA PRE-EMPTED BY
FEDERAL LAW OR FEDERAL PROCEDURES.  NEVERTHELESS, IN MY VIEW THE
DISTRICT COURT HAD DISCRETION TO ENJOIN THE STATE PROCEEDINGS IN THE
PRESENT CASE BECAUSE IT ACTED PURSUANT TO AN EXPLICIT EXCEPTION TO THE
PROHIBITION OF SEC. 2283, THAT IS, "TO PROTECT OR EFFECTUATE (THE
DISTRICT COURT'S) JUDGMENTS." 

THE PERTINENT PORTIONS OF THE DISTRICT COURT'S 1967 ORDER, DENYING
ACL'S APPLICATION FOR INJUNCTIVE RELIEF AND DEFINING BLE'S FEDERALLY
PROTECTED RIGHT TO PICKET AT THE MONCRIEF YARD, ARE AS FOLLOWS: 

     "3.  THE PARTIES TO THE BLE-FEC 'MAJOR DISPUTE,' HAVING

  EXHAUSTED THE PROCEDURES OF THE RAILWAY LABOR ACT, 45 U.S.C. 151,

  ET SEQ., ARE NOW FREE TO ENGAGE IN SELF-HELP.  BROTHERHOOD OF

  LOCOMOTIVE ENGINEERS V. BALTIMORE & O.R.R., 372 U.S. 284 (1963). 

"4.  THE CONDUCT OF THE FEC PICKETS AND THAT OF THE RESPONDING

  ACL EMPLOYEES ARE A PART OF THE FEC-BLE MAJOR DISPUTE. 

  BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN V. FLORIDA EAST

  COAST RY., 346 F.2D 673 (5TH CIR. 1965). 

    .          .          .          . 

     "6.  THE 'ECONOMIC SELF-INTEREST' OF THE PICKETING UNION IN

  PUTTING A STOP TO THE INTERCHANGE SERVICES DAILY PERFORMED WITHIN

 THE PREMISES OF PLAINTIFF'S YARD FACILITIES, AND IN THE NORMAL,

  DAY-TO-DAY OPERATION OF FEC TRAINS OPERATING WITH STRIKE

  REPLACEMENT CREWS WITHIN THESE FACILITIES IS PRESENT HERE.  THE

  'ECONOMIC SELF-INTEREST' OF THE RESPONDING EMPLOYEES IN REFUSING

  TO HANDLE THIS INTERCHANGE AND IN MAKING COMMON CAUSE WITH THE

  STRIKING FEC ENGINEERS IS SIMILARLY PRESENT.  BROTHERHOOD OF R.R.

  TRAINMEN V. ATLANTIC COAST LINE R.R., 362 F.2D 649 (5TH CIR.),

  AFF'D, 385 U.S. 20 (1966). 

     "7.  THE NORRIS-LAGUARDIA ACT, 29 U.S.C. 101, AND THE CLAYTON

  ACT, 29 U.S.C. 52, ARE APPLICABLE TO THE CONDUCT OF THE

  DEFENDANTS HERE INVOLVED.  SEE BROTHERHOOD OF LOCOMOTIVE FIREMEN

  AND ENGINEMEN V. FLORIDA EAST COAST RY., 346 F.2D 673 (5TH CIR.

  1965); BROTHERHOOD OF R.R. TRAINMEN V. ATLANTIC COAST LINE

  RAILROAD, 362 F.2D 649 (5TH CIR.), AFF'D, 385 U.S. 20 (1966)." 

APP. 67-68. 

THE THRUST OF THE DISTRICT JUDGE'S ORDER IS THAT THE PROCEDURES
PRESCRIBED BY THE RAILWAY LABOR ACT HAD BEEN EXHAUSTED IN RELATION TO
THE BLE-FEC DISPUTE, THAT BLE WAS THEREFORE FREE TO ENGAGE IN SELF-HLEP
TACTICS, AND THAT IT WAS PROPERLY EXERCISING THIS FEDERAL RIGHT WHEN IT
ENGAGED IN THE PICKETING THAT ACL SOUGHT TO ENJOIN.  THIS
INTERPRETATION OF THE ORDER IS SUPPORTED BY THE FACT THAT THE DISTRICT
JUDGE RELIED UPON BROTHERHOOD OF LOCOMOTIVE ENGINEERS V. BALTIMORE &
OHIO R. CO., 372 U.S. 284 (1963), IN WHICH THIS COURT HELD THAT THE
PARTIES HAD EXHAUSTED ALL AVAILABLE PROCEDURES UNDER THE RAILWAY LABOR
ACT AND THUS WERE FREE TO RESORT TO SELF-HELP.  FURTHERMORE, THE
DISTRICT COURT INVOKED SEC. 20 OF THE CLAYTON ACT, 29 U.S.C. 52, WHICH
PROVIDES THAT CERTAIN UNION ACTIVITIES, INCLUDING STRIKING AND PEACEFUL
PICKETING, SHALL NOT "BE CONSIDERED OR HELD TO BE VIOLATIONS OF ANY LAW
OF THE UNITED STATES."  THUS, CONTRARY TO PETITIONER'S CONTENTION, THE
DISTRICT COURT OBVIOUSLY DECIDED CONSIDERABLY MORE THAN THE THRESHOLD
QUESTION OF WHETHER THE NORRIS-LAGUARDIA ACT WITHDREW JURISDICTION TO
GRANT FEDERAL INJUNCTIVE RELIEF IN THE CIRCUMSTANCES OF THIS CASE. 

IN MY VIEW, WHAT THE DISTRICT COURT DECIDED IN 1967 WAS THAT BLE HAD
A FEDERAL PROTECTED RIGHT TO PICKET AT THE MONCRIEF YARD AND, BY
NECESSARY IMPLICATION, THAT THIS RIGHT COULD NOT BE SUBVERTED BY RESORT
TO STATE PROCEEDINGS.  I FIND IT DIFFICULT INDEED TO ASCRIBE TO THE
DISTRICT JUDGE THE VIEWS THAT THE COURT NOW SAYS HE HELD, NAMELY, THAT
ACL, MERELY BY MARCHING ACROSS THE STREET TO THE STATE COURT, COULD
RENDER WHOLLY NUGATORY THE DISTRICT JUDGE'S DECLARATION THAT BLE HAD A
FEDERALLY PROTECTED RIGHT TO STRIKE AT THE MONCRIEF YARD. 

MOREOVER, IT IS READILY APPARENT FROM THE DISTRICT COURT'S 1969
ORDER ENJOINING THE STATE PROCEEDINGS THAT THE DISTRICT JUDGE VIEWED
HIS 1967 ORDER AS DELINEATING THE RIGHTS OF THE RESPECTIVE PARTIES,
AND, MORE PARTICULARLY, AS ESTABLISHING BLE'S RIGHT TO CONDUCT THE
PICKETING IN QUESTION UNDER PARAMOUNT FEDERAL LAW.  THIS INTERPRETATION
SHOULD BE ACCEPTED AS CONTROLLING, FOR CERTAINLY THE DISTRICT JUDGE IS
IN THE BEST POSITION TO RENDER AN AUTHORITATIVE INTERPRETATION OF HIS
OWN ORDER.  IN THE 1969 INJUNCTION ORDER, AFTER DISTINGUISHING RICHMAN
BROS. AND CONCLUDING THAT THE DISTRICT COURT COULD GRANT INJUNCTIVE
RELIEF "IN AID OF ITS JURISDICTION," THE COURT ALTERNATIVELY HELD THAT
IT HAD POWER TO STAY THE STATE COURT PROCEEDINGS SO AS TO EFFECTUATE
ITS 1967 ORDER: 

    "IN ITS ORDER OF APRIL 26, 1967, THIS COURT FOUND THAT

  PLAINTIFF'S MONCRIEF YARD, THE AREA IN QUESTION, 'IS AN INTEGRAL

  AND NECESSARY PART OF (FLORIDA EAST COAST RAILWAY COMPANY'S)

  OPERATIONS' . . . . THE COURT CONCLUDED FURTHERMORE THAT

  DEFENDANTS HEREIN 'ARE NOW FREE TO ENGAGE IN SELF-HELP' . . . .

  THE INJUNCTION OF THE STATE COURT, IF ALLOWED TO CONTINUE IN

  FORCE, WOULD EFFECTIVELY NULLIFY THIS COURT'S FINDINGS AND

  DELINEATION OF RIGHTS OF THE PARTIES.  THE CATEGORIZATION OF

  DEFENDANTS' ACTIVITIES AS 'SECONDARY' DOES NOT ALTER THIS STATE

  OF AFFAIRS.  SEE BROTHERHOOD OF R.R. TRAINMEN V. JACKSONVILLE

  TERMINAL CO., . . . U.S. . . ., 22 L.ED.2D 344 (1969).  THE

  PROHIBITION OF 28 U.S.C. 2283, THEREFORE, DOES NOT DEPRIVE THIS

  COURT OF JURISDICTION TO ENTER THE INJUNCTION IN THIS INSTANCE. 

  CAPITAL SERVICE, INC. V. NLRB, 347 U.S. 501 (1954); (UNITED

  INDUS.  WORKERS OF THE SEAFARERS INT'L UNION) V. BOARD OF
TRUSTEES

  OF GALVESTON WHARVES, 400 F.2D 320 (5TH CIR. 1968)."  APP.

  195-196. 

THE DISTRICT JUDGE'S RELIANCE UPON CAPITAL SERVICE, INC. V. NLRB,
347 U.S. 501 (1954), /1/  AND UNITED INDUS.  WORKERS OF THE SEAFARERS
INT'L UNION V. BOARD OF TRUSTEES OF GALVESTON WHARVES, 400 F.2D 320
(C.A. 5TH CIR. 1968), A FACT IGNORED BY THE COURT, IS PARTICULARLY
SIGNIFICANT, FOR BOTH OF THESE CASES SUSTAINED INJUNCTIVE RELIEF
AGAINST STATE COURT PROCEEDINGS THAT THREATENED TO IMPAIR THE ABILITY
OF THE FEDERAL COURTS TO MAKE THEIR JUDGMENTS EFFECTIVE.  MOREOVER, NO
MATTER HOW THE ARGUMENTS OF COUNSEL BEFORE THE DISTRICT COURT ARE
UNDERSTOOD, IT IS APPARENT THAT THE DISTRICT JUDGE DID NOT BOTTOM THE
1969 INJUNCTION UPON OUR INTERVENING DECISION IN JACKSONVILLE TERMINAL
BUT MERELY CITED THAT CASE TO SUPPORT THE COURT'S 1967 CONCLUSION THAT
THE PICKETING IN QUESTION CONSTITUTED FEDERALLY PROTECTED ACTIVITY
WHETHER OR NOT IT HAD "SECONDARY" ASPECTS. 

THE COURT SEEKS TO BOLSTER ITS OWN READING OF THE DISTRICT COURT'S
1967 AND 1969 ORDERS BY FINDING THEM "SOMEWHAT AMBIGUOUS" AND THEN BY
REFERRING TO THE ARGUMENTS OF COUNSEL BEFORE THAT COURT AND THE STATE
COURT BOTH IN 1967 AND 1969.  IN THE FIRST PLACE, IT SHOULD BE NOTED
THAT THE ARGUMENT OF COUNSEL IS NOT ALWAYS A SURE GUIDE TO THE
INTERPRETATION OF A SUBSEQUENT JUDICIAL DECREE OR OPINION, BECAUSE IT
NOT INFREQUENTLY HAPPENS, IN THIS COURT AS WELL AS OTHERS, THAT A
DECISION IS BASED ON PREMISES NOT ELABORATED BY COUNSEL.  INDEED,
OCCASIONALLY A DECISION IS GROUNDED ON A THEORY NOT EVEN SUGGESTED BY
COUNSEL'S ARGUMENT. 

IN ANY EVENT, I BELIEVE THAT THE COURT HAS MISINTERPRETED THE
ARGUMENT OF COUNSEL IN THE LOWER COURTS.  WHILE I DO NOT FIND THE
VARIOUS PROCEEDINGS BELOW ENTIRELY FREE OF CONFUSION WITH RESPECT TO
BLE'S LEGAL THEORY, THERE APPEAR TO BE AT LEAST TWO STRANDS TO ITS
ARGUMENT.  TO BE SURE, BLE DID CONTEND, PARTICULARLY IN THE STATE
PROCEEDINGS, THAT OUR DECISION IN JACKSONVILLE TERMINAL WAS CONTROLLING
ON THE MERITS.  /2/  AS I READ THE RECORD, HOWEVER, BLE ALSO ARGUED
THAT THE STATE INJUNCTION SHOULD EITHER BE DISSOLVED OR ENJOINED SO
THAT IT WOULD NOT INTERFERE WITH THE FEDERAL COURT'S 1967 DECREE. 
THUS, IN MOVING FOR A PRELIMINARY INJUNCTION AGAINST THE STATE COURT
PROCEEDINGS, BLE RELIED BOTH UPON JACKSONVILLE TERMINAL AND UPON THE
POWER OF THE DISTRICT COURT TO ISSUE THE INJUNCTION "TO PROTECT AND
EFFECTUATE THE JUDGMENT OF THIS COURT DATED APRIL 26, 1967."  1 RECORD
30-31. 

FURTHERMORE,BOTH IN SUPPORT OF THE MOTION FOR A PRELIMINARY
INJUNCTION AND DURING ORAL ARGUMENT IN THE DISTRICT COURT, BLE RELIED
EXTENSIVELY UPON CAPITAL SERVICE, INC. V. NLRB,SUPRA, AND UNITED
INDUS.  WORKERS OF THE SEAFARERS INT'L UNION V. BOARD OF TRUSTEES OF
GALVESTON WHARVES, SUPRA.  SEE 1 RECORD 33-34, 243-245, 247, 253-257,
279-281.  A CONSIDERATION OF THE FACTUAL CONTEXT OF THE LATTER CASE IS
INSTRUCTIVE IN UNDERSTANDING BLE'S POSITION BELOW.  IN GALVESTON
WHARVES THE UNION FULLY COMPLIED WITH THE PERTINENT PROVISIONS OF THE
RAILWAY LABOR ACT, BUT, BECAUSE THE EMPLOYER HAD REFUSED TO BARGAIN
CONCERNING A "MAJOR" DISPUTE, THE UNION WAS FREE TO STRIKE.  MEANWHILE
THE EMPLOYER OBTAINED FROM A STATE COURT AN INJUNCTION AGAINST ANY
PICKETING ON OR NEAR ITS PREMISES.  THE FEDERAL DISTRICT COURT ORDERED
THE PARTIES TO BARGAIN AND ENJOINED THE EMPLOYER FROM GIVING EFFECT TO,
OR SEEKING ENFORCEMENT OF, THE STATE COURT INJUNCTION.  THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT AFFIRMED THE GRANTING OF INJUNCTIVE
RELIEF ON THE GROUND THAT THIS ACTION WAS WITHIN THE SEC. 2283
EXCEPTION RELATING TO THE EFFECTUATION OF FEDERAL COURT JUDGMENTS.  THE
COURT OF APPEALS HELD THAT THE UNION HAD A RIGHT TO STRIKE UNDER THE
RAILWAY LABOR ACT AND THAT THAT RIGHT COULD NOT BE FRUSTRATED OR
INTERFERED WITH BY STATE COURT INJUNCTIONS.  SIMILARLY, BLE ARGUED
BELOW THAT RESORT TO STATE EQUITABLE PROCEEDINGS SHOULD NOT BE
PERMITTED TO UNDERMINE THE DISTRICT COURT'S PRIOR DETERMINATION THAT
BLE HAD A RIGHT TO PICKET AT THE MONCRIEF YARD.  AS ITS INJUNCTION
ORDER INDICATES, THE DISTRICT COURT WAS PERSUADED BY BLE'S ARGUMENT. 
AFTER THE FEDERAL INJUNCTION WAS ISSUED, IN PROCEEDINGS BROUGHT BY ACL
TO STAY THE EFFECTIVENESS OF THE ORDER, BLE ADHERED TO ITS POSITION
THAT THE STATE INJUNCTION, IF NOT ENJOINED, WOULD NULLIFY THE DISTRICT
COURT'S 1967 ORDER DELINEATING THE RIGHTS OF THE PARTIES.  1 RECORD
499, 505, 508-509.  AGAIN BLE RELIED UPON THE INTERVENING DECISION IN
JACKSONVILLE TERMINAL, BUT IT DOD SO PRIMARILY IN SUPPORT OF THE
CONTENTION THAT THE 1967 ORDER WAS PROPER INSOFAR AS IT PROHIBITED
STATE COURT INTERFERENCE WITH THE PICKETING AT THE MONCRIEF YARD.  1
RECORD 509-510.  IN ESSENCE, BLE ARGUED THAT THE 1967 ORDER HAD
CORRECTLY ANTICIPATED JACKSONVILLE TERMINAL.  SEE IBID.     IN THE
STATE COURTS BLE ADOPTED A POSITION ENTIRELY CONSISTENT WITH THE
FOREGOING.  FOR EXAMPLE, IN OPPOSING ACL'S APPLICATION FOR A TEMPORARY
INJUNCTION AGAINST THE PICKETING, BLE CONTENDED THAT THE DISTRICT COURT
HAD PREVIOUSLY HELD THAT UNDER CONTROLLING FEDERAL LAW BLE'S RIGHT TO
PICKET HAD BEEN ESTABLISHED, THAT THIS DECLARATION OF RIGHTS WAS RES
JUDICATA IN THE STATE PROCEEDINGS, AND CONSEQUENTLY THAT STATE
PROSCRIPTION OF THE PICKETING WAS IMPROPER.  2 RECORD 104-105. 

IN SUM, TO THE EXTENT THAT THE ARGUMENT OF COUNSEL IS AN
INTERPRETIVE GUIDE TO WHAT THE DISTRICT COURT ACTUALLY DECIDED IN ITS
1967 AND 1969 ORDERS, THE COURT'S CONCLUSION THAT THE RECORD
"CONCLUSIVELY SHOWS THAT NEITHER THE PARTIES THEMSELVES NOR THE
DISTRICT COURT CONSTRUED THE 1967 ORDER" TO PRECLUDE RESORT TO STATE
REMEDIES TO PROHIBIT THE MONCRIEF YARD PICKETING (ANTE, AT 293) IS
WHOLLY ERRONEOUS.  AND, QUITE APART FROM COUNSEL'S ARGUMENT, IT IS
APPARENT THAT THE DISTRICT JUDGE VIEWED HIS OWN 1967 ORDER AS
DELINEATING A FEDERALLY PROTECTED RIGHT FOR THE BLE PICKETING IN
QUESTION.  WHETHER THE DISTRICT COURT'S ANTICIPATION OF JACKSONVILLE
TERMINAL WAS CORRECT IN THE CIRCUMSTANCES OF THE PRESENT CASE IS NOT
NOW BEFORE US.  BUT IF THE 1967 ORDER IS SO UNDERSTOOD, IT IS
UNDENIABLY CLEAR THAT THE SUBSEQUENT INJUNCTION AGAINST THE STATE
PROCEEDINGS WAS BOTH NECESSARY AND APPROPRIATE TO PRESERVE THE
INTEGRITY OF THE 1967 ORDER. 

IN JUSTIFYING ITS NIGGARDLY CONSTRUCTION OF THE DISTRICT COURT'S
ORDERS, THE COURT TAKES THE POSITION THAT ANY DOUBTS CONCERNING THE
PROPRIETY OF AN INJUNCTION AGAINST STATE PROCEEDINGS SHOULD BE RESOLVED
AGAINST THE GRANTING OF INJUNCTIVE RELIEF.  UNQUESTIONABLY SEC. 2283
MANIFESTS A GENERAL DESIGN ON THE PART OF CONGRESS THAT FEDERAL COURTS
NOT PRECIPITATELY INTERFERE WITH THE ORDERLY DETERMINATION OF
CONTROVERSIES IN STATE PROCEEDINGS.  HOWEVER, THIS POLICY OF
NONINTERVENTION IS BY NO MEANS ABSOLUTE, AS THE EXPLICIT EXCEPTIONS IN
SEC. 2283 MAKE ENTIRELY CLEAR.  THUS, SEC. 2283 ITSELF EVINCES A
CONGRESSIONAL INTENT THAT RESORT TO STATE PROCEEDINGS NOT BE PERMITTED
TO UNDERMINE A PRIOR JUDGMENT OF A FEDERAL COURT.  BUT THAT IS EXACTLY
WHAT HAS OCCURRED IN THE PRESENT CASE.  INDEED, THE FEDERAL
DETERMINATION THAT BLE MAY PICKET AT THE MONCRIEF YARD HAS BEEN
RENDERED WHOLLY INEFFECTIVE BY THE STATE INJUNCTION.  THE CRIPPLING
RESTRICTIONS THAT THE COURT TODAY PLACES UPON THE POWER OF THE DISTRICT
COURT TO EFFECTUATE AND PROTECT ITS ORDERS ARE TOTALLY INCONSISTENT
WITH BOTH THE PLAIN LANGUAGE OF SEC. 2283 AND THE POLICIES UNDERLYING
THAT STATUTORY PROVISION. 

ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS
SUSTAINING THE DISTRICT COURT'S GRANT OF INJUNCTIVE RELIEF AGAINST
PETITIONER'S GIVING EFFECT TO, OR AVAILING ITSELF OF, THE BENEFIT OF
THE STATE COURT INJUNCTION. 

/1/  IN CAPITAL SERVICE THE NLRB SOUGHT AN INJUNCTION AGAINST
CERTAIN PICKETING UNDER SEC. 10(1) OF THE NATIONAL LABOR RELATIONS ACT,
29 U.S.C. 160(L).  PREVIOUSLY A STATE COURT HAD RESTRAINED THE VERY
CONDUCT THAT THE DISTRICT COURT WAS ASKED TO ENJOIN.  THIS COURT
DECIDED THAT THE DISTRICT COURT HAD AUTHORITY TO ENJOIN THE STATE
PROCEEDINGS SO THAT IT WOULD HAVE "UNFETTERED POWER TO DECIDE FOR OR
AGAINST THE UNION, AND TO WRITE SUCH DECREE AS IT DEEMED NECESSARY IN
ORDER TO EFFECTUATE THE POLICIES OF THE ACT."  347 U.S.,AT 505-506. 

/2/  IT IS HARDLY SURPRISING THAT BLE EMPHASIZED THE JACKSONVILLE
TERMINAL DECISION IN THE STATE PROCEEDINGS TO DISSOLVE THE STATE
INJUNCTION, AND THIS RELIANCE IS HARDLY INCONSISTENT WITH THE POSITION
THAT THE FEDERAL COURT IN 1967 HAD AUTHORITATIVELY DELINEATED BLE'S
FEDERALLY PROTECTED RIGHT TO STRIKE AT THE MONCRIEF YARD.  BLE MAY WELL
HAVE THOUGHT THAT ITS CONTENTION THAT JACKSONVILLE TERMINAL WAS
CONTROLLING ON THE ISSUE OF PRE-EMPTION WOULD CARRY MORE WEIGHT WITH
THE STATE COURT THAN THE ALTERNATIVE POSITION THAT THE PROTECTED
CHARACTER OF THE BLE PICKETING HAD BEEN PREVIOUSLY DETERMINED BY THE
FEDERAL DISTRICT COURT. 

DENNIS G. LYONS AND FRANK X. FRIEDMANN, JR., ARGUED THE CAUSE FOR
PETITIONER.  WITH HIM ON THE BRIEFS WERE DAVID M. FOSTER, JOHN W.
WELDON, AND JOHN S. COX. 

ALLAN MILLEDGE ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS RICHARD L. HORN. 
..END :





HELLENIC LINES V. RHODITIS, 398 U.S. 306 


       HELLENIC LINES LTD. ET AL. V. RHODITIS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

          FIFTH CIRCUIT. 

        NO. 661.  ARGUED APRIL 21, 1970-- DECIDED JUNE 8, 1970. 


RESPONDENT, A GREEK SEAMAN EMPLOYED UNDER A GREEK CONTRACT, SOUGHT
RECOVERY UNDER THE JONES ACT FOR INJURIES SUSTAINED ON A SHIP OF GREEK
REGISTRY WHILE IN AMERICAN TERRITORIAL WATERS.  THE VESSEL IS OPERATED
BY PETITIONER GREEK CORPORATION, WHICH HAS ITS LARGEST OFFICE IN NEW
YORK AND ANOTHER OFFICE IN NEW ORLEANS, AND MORE THAN 95% OF WHOSE
STOCK IS OWNED BY A UNITED STATES DOMICILIARY,WHO IS A GREEK CITIZEN. 
THE INCOME OF THE SHIP, WHICH OPERATES BETWEEN THE UNITED STATES AND
THE MIDDLE EAST, IS FROM CARGO EITHER ORIGINATING OR TERMINATING IN THE
UNITED STATES.  THE DISTRICT COURT RENDERED JUDGMENT FOR RESPONDENT. 
THE COURT OF APPEALS AFFIRMED.  HELD:  IN THE TOTALITY OF THE
CIRCUMSTANCES OF THIS CASE, WHICH IS FACTUALLY DISTINGUISHABLE FROM
LAURITZEN V. LARSEN, 345 U.S. 571, THE JONES ACT IS APPLICABLE, THE
ALIEN OWNER'S SUBSTANTIAL AND CONTINUING CONTRACTS WITH THIS COUNTRY
OUTWEIGHING OTHER FACTORS AGAINST THE ACT'S APPLICABILITY HERE.  PP.
307-310. 

412 F.2D 919, AFFIRMED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT UNDER THE JONES ACT /1/  BY A SEAMAN WHO WAS INJURED
ABOARD THE SHIP HELLENIC HERO IN THE PORT OF NEW ORLEANS.  THE DISTRICT
COURT, SITTING WITHOUT A JURY, RENDERED JUDGMENT FOR THE SEAMAN, 273
F.SUPP.  248.  THE COURT OF APPEALS AFFIRMED, 412 F.2D 919.  THE CASE
IS HERE ON PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED, 396 U.S.
1000, IN LIGHT OF THE CONFLICT BETWEEN THE DECISION BELOW AND
TSAKONITES V. TRANSPACIFIC CARRIERS CORP., 368 F.2D 426, IN THE SECOND
CIRCUIT. 

PETITIONER /2/  HELLENIC LINES LTD. IS A GREEK CORPORATION THAT HAS
ITS LARGEST OFFICE IN NEW YORK AND ANOTHER OFFICE IN NEW ORLEANS.  MORE
THAN 95% OF ITS STOCK /3/  IS OWNED BY A UNITED STATES DOMICILIARY WHO
IS A GREEK CITIZEN-- PERICLES G. CALLIMANOPOULOS (WHOM WE CALL
PERICLES).  HE LIVES IN CONNECTICUT AND MANAGES THE CORPORATION OUT OF
NEW YORK.  HE HAS LIVED IN THIS COUNTRY SINCE 1945.  THE SHIP HELLENIC
HERO IS ENGAGED IN REGULARLY SCHEDULED RUNS BETWEEN VARIOUS PORTS OF
THE UNITED STATES AND THE MIDDLE EAST, PAKISTAN, AND INDIAN.  THE
DISTRICT COURT FOUND THAT ITS ENTIRE INCOME IS FROM CARGO EITHER
ORIGINATING OR TERMINATING IN THE UNITED STATES. 

RESPONDENT, THE SEAMAN, SIGNED ON IN GREECE, AND HE IS A GREEK
CITIZEN.  HIS CONTRACT OF EMPLOYMENT PROVIDES THAT GREEK LAW AND A
GREEK COLLECTIVE-BARGAINING AGREEMENT APPLY BETWEEN THE EMPLOYER AND
THE SEAMAN AND THAT ALL CLAIMS ARISING OUT OF THE EMPLOYMENT CONTRACT
ARE TO BE ADJUDICATED BY A GREEK COURT.  AND IT SEEMS TO BE CONCEDED
THAT RESPONDENT COULD OBTAIN RELIEF THROUGH GREEK COURTS, IF HE
DESIRED. 

THE JONES ACT SPEAKS ONLY OF "THE DEFENDANT EMPLOYER" WITHOUT ANY
QUALIFICATIONS.  IN LAURITZEN V. LARSEN, 345 U.S. 571, HOWEVER, WE
LISTED SEVEN FACTORS TO BE CONSIDERED IN DETERMINING WHETHER A
PARTICULAR SHIPOWNER SHOULD BE HELD TO BE AN "EMPLOYER" FOR JONES ACT
PURPOSES: 

     (1) THE PLACE OF THE WRONGFUL ACT; (2) THE LAW OF THE FLAG;
(3)

  THE ALLEGIANCE OR DOMICILE OF THE INJURED SEAMAN; (4) ALLEGIANCE

  OF THE DEFENDANT SHIPOWNER; (5) THE PLACE WHERE THE CONTRACT OF

  EMPLOYMENT WAS MADE; (6) THE INACCESSIBILITY OF A FOREIGN FORUM;

  AND (7) THE LAW OF THE FORUM. 

OF THESE SEVEN FACTORS IT IS URGED THAT FOUR ARE IN FAVOR OF THE
SHIPOWNER AND AGAINST JURISDICTION:  THE SHIP'S FLAG IS GREEK; THE
INJURED SEAMAN IS GREEK; THE EMPLOYMENT CONTRACT IS GREEK; AND THERE IS
A FOREIGN FORUM AVAILABLE TO THE INJURED SEAMAN. 

THE LAURITZEN TEST, HOWEVER, IS NOT A MECHANICAL ONE.  345 U.S.,AT
582.  WE INDICATED THAT THE FLAG THAT A SHIP FLIES MAY, AT TIMES, ALONE
BE SUFFICIENT.  ID., AT 585-586.  THE SIGNIFICANCE OF ONE OR MORE
FACTORS MUST BE CONSIDERED IN LIGHT OF THE NATIONAL INTEREST SERVED BY
THE ASSERTION OF JONES ACT JURISDICTION.  /4/  MOREOVER, THE LIST OF
SEVEN FACTORS IN LAURITZEN WAS NOT INTENDED AS EXHAUSTIVE.  AS HELD IN
PAVLOU V. OCEAN TRADERS MARINE CORP., 211 F.SUPP.  320, 325, AND
APPROVED BY THE COURT OF APPEALS IN THE PRESENT CASE, 412 F.2D, AT 923
N. 7, THE SHIPOWNER'S BASE OF OPERATIONS IS ANOTHER FACTOR OF
IMPORTANCE IN DETERMINING WHETHER THE JONES ACT IS APPLICABLE; AND
THERE WELL MAY BE OTHERS. 

IN LAURITZEN THE INJURED SEAMAN HAD BEEN HIRED IN AND WAS RETURNED
TO THE UNITED STATES, AND THE SHIPOWNER WAS SERVED HERE.  THOSE WERE
THE ONLY CONTACTS OF THAT SHIPPING OPERATION WITH THIS COUNTRY. 

THE PRESENT CASE IS QUITE DIFFERENT. 

PERICLES BECAME A LAWFUL PERMANENT RESIDENT ALIEN IN 1952.  WE
EXTEND TO SUCH AN ALIEN THE SAME CONSTITUTIONAL PROTECTIONS OF DUE
PROCESS THAT WE ACCORD CITIZENS.  /5/  KWONG HAI CHEW V. COLDING, 344
U.S. 590, 596.  THE INJURY OCCURRED HERE.  THE FORUM IS A UNITED STATES
COURT.  PERICLES' BASE OF OPERATIONS IS NEW YORK.  THE HELLENIC HERO
WAS NOT A CASUAL VISITOR; RATHER, IT AND MANY OF ITS SISTER SHIPS WERE
EARNING INCOME FROM CARGO ORIGINATING OR TERMINATING HERE.  WE SEE NO
REASON WHATSOEVER TO GIVE THE JONES ACT A STRAINED CONSTRUCTION SO THAT
THIS ALIEN OWNER, ENGAGED IN AN EXTENSIVE BUSINESS OPERATION IN THIS
COUNTRY, MAY HAVE AN ADVANTAGE OVER CITIZENS ENGAGED IN THE SAME
BUSINESS BY ALLOWING HIM TO ESCAPE THE OBLIGATIONS AND RESPONSIBILITY
OF A JONES ACT "EMPLOYER."  THE FLAG, THE NATIONALITY OF THE SEAMAN,
THE FACT THAT HIS EMPLOYMENT CONTRACT WAS GREEK, AND THAT HE MIGHT BE
COMPENSATED THERE ARE IN THE TOTALITY OF THE CIRCUMSTANCES OF THIS CASE
MINOR WEIGHTS IN THE SCALES COMPARED WITH THE SUBSTANTIAL AND
CONTINUING CONTACTS THAT THIS ALIEN OWNER HAS WITH THIS COUNTRY.  IF,
AS STATED IN BARTHOLOMEW V. UNIVERSE TANKSHIPS INC., 263 F.2D 437, THE
LIBERAL PURPOSES OF THE JONES ACT ARE TO BE EFFECTUATED, THE FACADE OF
THE OPERATION MUST BE CONSIDERED AS MINOR, COMPARED WITH THE REAL
NATURE OF THE OPERATION AND A COLD OBJECTIVE LOOK AT THE ACTUAL
OPERATIONAL CONTACTS THAT THIS SHIP AND THIS OWNER HAVE WITH THE UNITED
STATES.  BY THAT TEST THE COURT OF APPEALS WAS CLEARLY RIGHT IN HOLDING
THAT PETITIONER HELLENIC LINES WAS AN "EMPLOYER" UNDER THE JONES ACT. 

              AFFIRMED. 

/1/  THE ACT PROVIDES: 

"ANY SEAMAN WHO SHALL SUFFER PERSONAL INJURY IN THE COURSE OF HIS
EMPLOYMENT MAY, AT HIS ELECTION, MAINTAIN AN ACTION FOR DAMAGES AT LAW,
WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL STATUTES OF THE
UNITED STATES MODIFYING OR EXTENDING THE COMMON-LAW RIGHT OR REMEDY IN
CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES SHALL APPLY; AND IN CASE
OF THE DEATH OF ANY SEAMAN AS A RESULT OF ANY SUCH PERSONAL INJURY THE
PERSONAL REPRESENTATIVE OF SUCH SEAMAN MAY MAINTAIN AN ACTION FOR
DAMAGES AT LAW WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL
STATUTES OF THE UNITED STATES CONFERRING OR REGULATING THE RIGHT OF
ACTION FOR DEATH IN THE CASE OF RAILWAY EMPLOYEES SHALL BE APPLICABLE. 
JURISDICTION IN SUCH ACTIONS SHALL BE UNDER THE COURT OF THE DISTRICT
IN WHICH THE DEFENDANT EMPLOYER RESIDES OR IN WHICH HIS PRINCIPAL
OFFICE IS LOCATED."  41 STAT. 1007, 46 U.S.C. 688. 

/2/  THE OTHER PETITIONER, UNIVERSAL CARGO CARRIERS INC., IS A
PANAMANIAN CORPORATION WHICH OWNS THE HELLENIC HERO; BUT HELLENIC HERO
IS MANAGED BY PETITIONER HELLENIC LINES LTD., A GREEK CORPORATION. 

/3/  PERICLES OWNS IN EXCESS OF 95% OF THE STOCK OF BOTH
PETITIONERS. 

/4/  JUDGE MEDINA, SPEAKING FOR THE COURT OF APPEALS FOR THE SECOND
CIRCUIT, CORRECTLY STATED THE PROBLEM IN THE FOLLOWING WORDS: 

"(THE DECISIONAL PROCESS OF ARRIVING AT A CONCLUSION ON THE SUBJECT
OF THE APPLICATION OF THE JONES ACT INVOLVES THE ASCERTAINMENT OF THE
FACTS OR GROUPS OF FACTS WHICH CONSTITUTE CONTACTS BETWEEN THE
TRANSACTION INVOLVED IN THE CASE AND THE UNITED STATES, AND THEN
DECIDING WHETHER OR NOT THEY ARE SUBSTANTIAL.  THUS EACH FACTOR IS TO
BE 'WEIGHED' AND 'EVALUATED' ONLY TO THE END THAT, AFTER EACH FACTOR
HAS BEEN GIVEN CONSIDERATION, A RATIONAL AND SATISFACTORY CONCLUSION
MAY BE ARRIVED AT ON THE QUESTION OF WHETHER ALL THE FACTORS PRESENT
ADD UP TO THE NECESSARY SUBSTANTIALITY.  MOREOVER, EACH FACTOR, OR
CONTACT, OR GROUP OF FACTS MUST BE TESTED IN THE LIGHT OF THE
UNDERLYING OBJECTIVE,WHICH IS TO EFFECTUATE THE LIBERAL PURPOSES OF THE
JONES ACT."  BARTHOLOMEW V. UNIVERSE TANKSHIPS, INC., 263 F.2D 437,
441. 

/5/  "THE BILL OF RIGHTS IS A FUTILE AUTHORITY FOR THE ALIEN SEEKING
ADMISSION FOR THE FIRST TIME TO THESE SHORES.  BUT ONCE AN ALIEN
LAWFULLY ENTERS AND RESIDES IN THIS COUNTRY HE BECOMES INVESTED WITH
THE RIGHTS GUARANTEED BY THE CONSTITUTION TO ALL PEOPLE WITHIN OUR
BORDERS.  SUCH RIGHTS INCLUDE THOSE PROTECTED BY THE FIRST AND THE
FIFTH AMENDMENTS AND BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  NONE OF THESE PROVISIONS ACKNOWLEDGES ANY DISTINCTION
BETWEEN CITIZENS AND RESIDENT ALIENS.  THEY EXTEND THEIR INALIENABLE
PRIVILEGES TO ALL 'PERSONS' AND GUARD AGAINST ANY ENCROACHMENT ON THOSE
RIGHTS BY FEDERAL OR STATE AUTHORITY."  BRIDGES V. WIXON, 326 U.S. 135,
161 (CONCURRING OPINION). 

MR. JUSTICE HARLAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

I DISSENT FROM TODAY'S DECISION HOLDING THAT A GREEK SEAMAN WHO
SIGNS ARTICLES IN GREECE FOR EMPLOYMENT ON A GREEK-OWNED, GREEK-FLAG
VESSEL MAY RECOVER UNDER THE JONES ACT FOR SHIPBOARD INJURIES SUSTAINED
WHILE THE VESSEL WAS IN AMERICAN TERRITORIAL WATERS.  THIS RESULT IS
SUPPORTED NEITHER BY PRECEDENT, NOR REALISTIC POLICY, AND IN MY OPINION
IS FAR REMOVED FROM ANY INTENTION THAT CAN REASONABLY BE ASCRIBED TO
CONGRESS. 

        A 

PROVIDES: 

     "ANY SEAMAN WHO SHALL SUFFER PERSONAL INJURY IN THE COURSE OF

  HIS EMPLOYMENT MAY, AT HIS ELECTION, MAINTAIN AN ACTION FOR

  DAMAGES AT LAW, WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH

  ACTION ALL STATUTES OF THE UNITED STATES MODIFYING OR EXTENDING

  THE COMMON-LAW RIGHT OR REMEDY IN CASES OF PERSONAL INJURY TO

  RAILWAY EMPLOYEES SHALL APPLY; AND IN CASE OF THE DEATH OF ANY

  SEAMAN AS A RESULT OF ANY SUCH PERSONAL INJURY THE PERSONAL

  REPRESENTATIVE OF SUCH SEAMAN MAY MAINTAIN AN ACTION FOR DAMAGES

  AT LAW WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL

  STATUTES OF THE UNITED STATES CONFERRING OR REGULATING THE RIGHT

  OF ACTION FOR DEATH IN THE CASE OF RAILWAY EMPLOYEES SHALL BE

  APPLICABLE.  JURISDICTION IN SUCH ACTIONS SHALL BE UNDER THE

  COURT OF THE DISTRICT IN WHICH THE DEFENDANT EMPLOYER RESIDES OR

  IN WHICH HIS PRINCIPAL OFFICE IS LOCATED." 

THE LANGUAGE OF SEC. 688 IS, AS MR. JUSTICE JACKSON NOTED IN
LAURITZEN V. LARSEN, 345 U.S. 571 (1953), ALL-EMBRACING.  BY ITS TERMS
IT IS NOT LIMITED TO AMERICAN SEAMEN NOR TO VESSELS BEARING THE
AMERICAN FLAG.  YET DESPITE THE SWEEPING LANGUAGE IT CAN HARDLY BE
DOUBTED THAT CONGRESSIONAL CONCERN STOPPED SHORT OF THE LENGTHS TO
WHICH THE LITERAL TERMS OF THE STATUTE CARRY THE JONES ACT.  THIS WAS
EMPHASIZED IN LAURITZEN WHICH POINTED OUT THAT CONGRESS WROTE AGAINST A
BACKDROP OF "USAGE AS OLD AS THE NATION," THAT "SUCH STATUTES HAVE BEEN
CONSTRUED TO APPLY ONLY TO AREAS AND TRANSACTIONS IN WHICH AMERICAN LAW
WOULD BE CONSIDERED OPERATIVE UNDER PREVALENT DOCTRINES OF
INTERNATIONAL LAW."  345 U.S.,AT 577.  THIS PRINCIPLE THE COURT
REITERATED IN ROMERO V. INTERNATIONAL TERMINAL CO., 358 U.S. 354
(1959), WHERE WE REAFFIRMED THE PRESUMPTION THAT DOMESTIC LEGISLATION
HAS BEEN ENACTED WITH "RESPECT FOR THE RELEVANT INTERESTS OF FOREIGN
NATIONS IN THE REGULATION OF MARITIME COMMERCE AS PART OF THE
LEGITIMATE CONCERN OF THE INTERNATIONAL COMMUNITY."  358 U.S.,AT 383. 

THIS COURT ONLY RECENTLY APPLIED THIS PRINCIPLE IN MCCULLOCH V.
SOCIEDAD NACIONAL, 372 U.S. 10 (1963), WHERE WE WERE CALLED UPON TO
DETERMINE WHETHER LABOR RELATIONS DEALING WITH AN ALIEN CREW ON A
FOREIGN-FLAG VESSEL, BENEFICIALLY OWNED BY AN AMERICAN CORPORATION,
AFFECTED "COMMERCE" WITHIN THE MEANING OF THE NATIONAL LABOR RELATIONS
ACT.  IN HOLDING THAT THE ACT WAS NOT "INTENDED TO HAVE ANY APPLICATION
TO FOREIGN REGISTERED VESSELS EMPLOYING ALIEN SEAMEN," THE COURT
DECLINED TO RELY ON THE BENEFICIAL OWNERSHIP OF THE VESSEL AND OTHER
"SUBSTANTIAL UNITED STATES CONTACTS," INCLUDING REGULAR VISTS TO THE
UNITED STATES AND THE "INTEGRATED MARITIME OPERATION" OF THE UNITED
FRUIT COMPANY, THE BENEFICIAL OWNER OF THE VESSEL, TO OVERRIDE THE WELL
SETTLED PRINCIPLE THAT THE LAW OF THE COUNTRY WHOSE FLAG A SHIP FLIES
GOVERNS SHIPBOARD TRANSACTIONS, ABSENT SOME "CLEAR EXPRESSION"  FROM
CONGRESS TO THE CONTRARY.  SEE WILDENHUS'S CASE, 120 U.S. 1 (1887);
UNITED STATES V. FLORES, 289 U.S. 137, 155-159 (1933); CUNARD STEAMSHIP
CO. V. MELLON, 262 U.S. 100, 124 (1923); CF. MURRAY V. THE CHARMING
BETSY, 2 CRANCH 64, 118 (1804).  /1/ 

THE MCCULLOCH CASE FOLLOWED A COURSE MARKED EARLY IN OUR
JURISPRUDENCE, AND, IN FACT, BUILT UPON LAURITZEN WHICH HAD ANNOUNCED
THAT THE LAW OF THE FLAG, "THE MOST VENERABLE AND UNIVERSAL RULE OF
MARITIME LAW," WOULD IN JONES ACT CASES "OVERBEAR MOST OTHER CONNECTING
EVENTS IN DETERMINING APPLICABLE LAW . . . UNLESS SOME HEAVY
COUNTERWEIGHT APPEARS."  345 U.S.,AT 584, 585-586. 

SUCH A COUNTERWEIGHT WOULD EXIST ONLY IN CIRCUMSTANCES WHERE THE
APPLICATION OF THE AMERICAN RULE OF LAW WOULD FURTHER THE PURPOSE OF
CONGRESS.  WHILE SOME LEGISLATION IN ITS PURPOSE OBVIOUSLY REQUIRES
EXTENSION BEYOND OUR BORDERS TO ACHIEVE NATIONAL POLICY, THIS IS NOT
SO, IN MY OPINION, WITH AN ACT CONCERNED WITH PRESCRIBING PARTICULAR
REMEDIES, RATHER THAN ONE REGULATING COMMERCE OR CREATING A STANDARD
FOR CONDUCT. 

THE ONLY JUSTIFICATION THAT I CAN SEE FOR EXTENDING
EXTRATERRITORIALLY A REMEDIAL-TYPE PROVISION LIKE SEC. 688 IS THAT THE
INJURED SEAMAN IS AN INDIVIDUAL WHOSE WELL-BEING IS A CONCERN OF THIS
COUNTRY.  IT WAS FOR THIS REASON THAT LAURITZEN RECOGNIZED THE
RESIDENCE OF THE PLAINTIFF AS A FACTOR THAT SHOULD PROPERLY BE
CONSIDERED IN DECIDING WHO IS A "SEAMAN" AS CONGRESS EMPLOYED THAT TERM
IN SEC. 688.  SEE D. CAVERS, THE CHOICE-OF-LAW PROCESS 96-97 (1965). 
IN SO DOING IT REFLECTED EARLIER DECISIONS WHERE RECOVERY WAS HAD BY
RESIDENT ALIEN SEAMEN WHO WERE SERVING ABOARD FOREIGN-FLAG VESSELS. 
SEE, E.G., GAMBERA V. BERGOTY, 132 F.2D 414 (C.A. 2D CIR. 1942); CF.
URAVIC V. F. JARKA CO., 282 U.S. 234 (1931).     IN THE EARLY DECISIONS
INVOLVING CITIZEN AND RESIDENT ALIEN SEAMEN SERVING ON FOREIGN VESSELS,
SOME ADDITIONAL FACTOR, SUCH AS THE VESSEL'S PRESENCE IN AMERICAN
WATERS OR BENEFICIAL AMERICAN OWNERSHIP, WAS CONSIDERED TO BE AN
ELEMENT JUSTIFYING RECOVERY.  SEE URAVIC V. F. JARKA CO., SUPRA;
GERRADIN V. UNITED FRUIT CO., 60 F.2D 927 (C.A. 2D CIR. 1932); COMPARE
GAMBERA V. BERGOTY, SUPRA, WITH O'NEILL V. CUNARD WHITE STAR, 160 F.2D
446 (C.A. 2D CIR. 1947).  LAURITZEN IN ENUMERATING THESE FACTORS
("CONTACTS") AS INDEPENDENT CONSIDERATIONS, WAS ATTEMPTING TO FOCUS
ANALYSIS ON THOSE FACTORS THAT ARE THE NECESSARY INGREDIENTS FOR A
STATUTORY CAUSE OF ACTION:  FIRST, AS A MATTER OF STATUTORY
CONSTRUCTION, IS PLAINTIFF WITHIN THAT CLASS OF SEAMEN THAT CONGRESS
INTENDED TO COVER BY THE STATUTE?  AND, SECOND, IS THERE A SUFFICIENT
NEXUS BETWEEN THE DEFENDANT AND THIS COUNTRY SO AS TO JUSTIFY THE
ASSERTION OF LEGISLATIVE JURISDICTION?  /2/  IN OTHER WORDS THE COURT
MUST DEFINE "SEAMAN" AND "EMPLOYER" AS THOSE WORDS ARE USED IN SEC.
688.  IN THIS REGARD THE SITUS OF THE ACCIDENT OR THE VESSEL'S CONTACTS
WITH THIS COUNTRY BY VIRTUE OF ITS BENEFICIAL OWNERSHIP OR THE
FREQUENCY OF CALLS AT OUR PORTS SIMPLY SERVES AS AN ADEQUATE NEXUS
BETWEEN THIS COUNTRY AND DEFENDANT TO ASSERT JURISDICTION IN A CASE
WHERE CONGRESSIONAL POLICY IS OTHERWISE FURTHERED.  BUT NO MATTER HOW
QUALITATIVELY SUBSTANTIAL OR NUMEROUS THESE KINDS OF CONTACTS MAY BE,
THEY HAVE NO BEARING IN THEMSELVES ON WHETHER JONES ACT RECOVERY IS
APPROPRIATE IN A GIVEN INSTANCE.  FOR TRANSACTIONS OCCURRING ABOARD
FOREIGN-FLAG VESSELS THAT QUESTION SHOULD BE ANSWERED BY REFERENCE TO
THE PLAINTIFF'S RELATIONSHIP TO THIS COUNTRY.  SEE NOTE, ADMIRALTY AND
THE CHOICE OF LAW:  LAURITZEN V. LARSEN APPLIED, 47 VA.L.REV.  1400
(1961). 

VIEWED IN THIS PERSPECTIVE, TODAY'S DECISION AND DECISIONS OF
SEVERAL LOWER COURTS THAT HAVE TAKEN THE PHENOMENON OF "CONVENIENT"
FOREIGN REGISTRY AS A WEDGE FOR DISPLACING THE LAW OF THE FLAG, SEE,
E.G., SOUTHERN CROSS STEAMSHIP CO. V. FIRIPIS, 285 F.2D 651 (C.A. 4TH
CIR. 1960); PAVLOU V. OCEAN TRADERS MARINE CORP., 211 F.SUPP.  320
(D.C.S.D.N.Y. 1962); VOYIATZIS V. NATIONAL SHIPPING & TRADING CORP.,
199 F.SUPP.  920 (D.C.S.D.N.Y. 1961), HAVE, I BELIEVE, MISCONSTRUED
THESE BASIC PREMISES ON WHICH LAURITZEN WAS FOUNDED.  THIS IS
UNDERSCORED BY THE FACT THAT THE LAURITZEN ALLUSION TO THE PRACTICE OF
AMERICAN OWNERS OF FINDING A "CONVENIENT" FLAG "TO AVOID STRINGENT
SHIPPING LAWS BY SEEKING FOREIGN REGISTRATION EAGERLY OFFERED BY SOME
COUNTRIES," 345 U.S.,AT 587, WAS PREFACED BY CITATION AND DISCUSSION OF
SKIRIOTES V. FLORIDA, 313 U.S. 69 (1941), AND STEELE V. BULOVA WATCH
CO., 344 U.S. 280 (1952), BOTH OF WHICH DEALT WITH THE QUESTION OF WHEN
LEGISLATIVE JURISDICTION EXISTED TO APPLY DOMESTIC LAW TO AMERICAN
NATIONALS ABROAD.  IN BOTH CASES THE APPLICATION OF DOMESTIC LAW
PRESUPPOSED OR CONSTRUED LEGISLATIVE PURPOSE TO BE FURTHERED BY
REACHING ACROSS THE BORDER.  /3/ 

THE LAURITZEN STATEMENT, LIFTED OUT OF CONTEXT, HAS ACQUIRED A
DYNAMISM AND BECOME THE JUSTIFICATION FOR RECOVERY BY FOREIGN SEAMEN
SIMPLY ON THE GROUND THAT CONVENIENT "REGISTRY" SOMEHOW CIRCUMVENTS AN
OBLIGATION THAT CONGRESS DESIRED TO IMPOSE ON ALL OWNERS WITHIN ITS
JURISDICTION.  /4/ 

THIS UNDERLIES TODAY'S DECISION WHICH RELIES ON THE FACT THAT
HELLENIC LINES IS AN AMERICAN-BASED OPERATION AND ITS VESSELS WOULD BE
ACCORDED A COMPETITIVE ADVANTAGE OVER AMERICAN-FLAG VESSELS WERE WE TO
PERMIT PETITIONERS TO AVOID RESPONSIBILITY UNDER THE JONES ACT. 
LIABILITY IS ONLY ONE FACTOR THAT CONTRIBUTES TO THE HIGHER COST OF
OPERATING AN AMERICAN-FLAG VESSEL.  INDEED, RECOGNIZING THE INSURANCE
FACTOR, IT IS DOUBTFUL THAT THIS FACTOR IS A SIGNIFICANT CONTRIBUTION
TO THE COMPETITIVE ADVANTAGE OF FOREIGN-FLAG SHIPS, ESPECIALLY GIVEN
THE HIGHER CREW WAGES (SEE 46 U.S.C. 1132 REQUIRING AMERICAN CREWS) AND
CONSTRUCTION COSTS FOR AMERICAN-FLAG SHIPS, WHICH MUST BE BUILT IN
AMERICAN YARDS IF THEY ARE TO PARTICIPATE IN THE CONGRESSIONAL PROGRAMS
SPECIFICALLY DESIGNED TO OFFSET THE HIGHER COSTS THAT THE COURT TODAY
TAKES AS JUSTIFICATION FOR DISPLACING SETTLED INTERNATIONAL PRINCIPLES
OF CHOICE OF LAW.  SEE, E.G., 46 U.S.C. 883 (COASTWISE TRADE); 46
U.S.C. 1180 (SUBSIDY).  SEE GENERALLY S. LAWRENCE, UNITED STATES
MERCHANT SHIPPING POLICIES AND POLITICS 61-67 (1966). 

EVEN WERE JONES ACT LIABILITY A SIGNIFICANT UNCOMPENSATED COST IN
THE OPERATION OF AN AMERICAN SHIP, I COULD NOT REGARD THIS AS A REASON
FOR EXTENDING JONES ACT RECOVERY TO FOREIGN SEAMEN WHEN THE UNDERLYING
CONCERN OF THE LEGISLATION BEFORE US IS THE ADJUSTMENT OF THE RISK OF
LOSS BETWEEN INDIVIDUALS AND NOT THE REGULATION OF COMMERCE OR
COMPETITION. 

        B 

TODAY'S DECISION SUGGESTS THAT COURTS HAVE BECOME MESMERIZED BY
CONTACTS, AND NOTWITHSTANDING THE PURPORTED ESCHEWAL OF A MECHANICAL
APPLICATION OF THE LAURITZEN TEST, THEY HAVE LOST SIGHT OF THE PRIMARY
PURPOSE OF LAURITZEN WHICH, AS I CONCEIVE IT, WAS TO RECONCILE THE ALL
EMBRACING LANGUAGE OF THE JONES ACT WITH THOSE PRINCIPLES OF COMITY
EMBODIED IN INTERNATIONAL AND MARITIME LAW THAT ARE DESIGNED TO "FOSTER
AMICABLE AND WORKABLE COMMERCIAL RELATIONS."  345 U.S.,AT 582. 
LAURITZEN, PROPERLY UNDERSTOOD, SHOULD, I SUBMIT, BE TAKEN TO FOCUS THE
JUDICIAL INQUIRY ON THE PURPOSE OF CONGRESS AND THE PRESENCE OR ABSENCE
OF AN ADEQUATE BASIS FOR THE ASSERTION OF AMERICAN JURISDICTION, WHEN
THAT PURPOSE MAY BE FURTHERED BY APPLICATION OF THE STATUTE IN THE
CIRCUMSTANCES PRESENTED. 

WHERE, AS IN THE CASE BEFORE US, THE INJURED PLAINTIFF HAS NO
AMERICAN TIES, THE INQUIRY SHOULD BE DIRECTED TOWARD DETERMINING WHAT
JURISDICTION IS PRIMARILY CONCERNED WITH PLAINTIFF'S WELFARE AND
WHETHER THAT JURISDICTION'S RULE MAY, CONSISTENT WITH THOSE NOTIONS OF
DUE PROCESS THAT DETERMINE THE PRESENCE OF LEGISLATIVE JURISDICTION,
GOVERN RECOVERY.  IN THE CASE BEFORE US, THERE IS NO REASON TO
DISREGARD EITHER THE LAW OF THE FLAG OR PLAINTIFF'S CONTRACTUAL
UNDERTAKING TO ACCEPT GREEK LAW AS CONTROLLING, THEREBY IN EFFECT
ASSUMING THAT HE SIGNED ARTICLES UNDER CONDITIONS THAT WOULD JUSTIFY
DISREGARDING THE CONTRACTUAL CHOICE OF LAW.  RHODITIS IS A GREEK
NATIONAL WHO RESIDES IN GREECE.  UNDER THESE CIRCUMSTANCES GREEK LAW
PROVIDES THE APPROPRIATE RULE. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS, AND HOLD THAT
THE JONES ACT AFFORDS NO REDRESS TO THIS SEAMAN. 

/1/  THE PRINCIPLE OF DEFERENCE TO THE LAW OF THE FLAG HAD ITS
ORIGINS IN THE FICTION THAT THE VESSEL WAS AN EXTENSION OF THE
SOVEREIGN TERRITORY OF THE COUNTRY WHOSE ENSIGN IT FLEW.  AS MR.
JUSTICE JACKSON NOTED IN LAURITZEN, THE PRINCIPLE DRAWS STRENGTH FROM
THE PRACTICAL NECESSITY OF PROVIDING PREDICTABLE RULES FOR SHIPBOARD
CONDUCT, RULES THAT WOULD, UNDER CONVENTIONAL TERRITORIAL PRINCIPLES,
BE CHANGING AS THE VESSEL TRAVELED OVER THE HIGH SEAS AND THROUGH
DIFFERENT TERRITORIAL WATERS.  "IT IS TRUE THAT THE CRIMINAL
JURISDICTION OF THE UNITED STATES IS IN GENERAL BASED ON THE
TERRITORIAL PRINCIPLE, AND CRIMINAL STATUTES OF THE UNITED STATES ARE
NOT BY IMPLICATION GIVEN AN EXTRA-TERRITORIAL EFFECT.  BUT THAT
PRINCIPLE HAS NEVER BEEN THOUGHT TO BE APPLICABLE TO A MERCHANT VESSEL
WHICH, FOR PURPOSES OF THE JURISDICTION OF THE COURTS OF THE
SOVEREIGNTY WHOSE FLAG IT FLIES TO PUNISH CRIMES COMMITTED UPON IT, IS
DEEMED TO BE A PART OF THE TERRITORY OF THAT SOVEREIGNTY, AND NOT TO
LOSE THAT CHARACTER WHEN IN NAVIGABLE WATERS WITHIN THE TERRITORIAL
LIMITS OF ANOTHER SOVEREIGNTY . . . ."  UNITED STATES V. FLORES, 289
U.S.,AT 155-156.  SEE RESTATEMENT, CONFLICT OF LAWS SECS. 405, 406
(1934). 

/2/  THERE MUST BE AT LEAST SOME MINIMAL CONTACT BETWEEN A STATE AND
THE REGULATED SUBJECT BEFORE IT CAN, CONSISTENTLY WITH THE REQUIREMENTS
OF DUE PROCESS, EXERCISE LEGISLATIVE JURISDICTION.  SEE, E.G., HOME
INS. CO. V. DICK, 281 U.S. 397 (1930); WATSON V. EMPLOYERS LIABILITY
ASSURANCE CORP., 348 U.S. 66 (1954). 

/3/  IN SKIRIOTES THE PRECISE QUESTION WAS WHETHER A STATE COULD
PROHIBIT BY STATUTE THE USE OF DIVING EQUIPMENT FOR THE PURPOSE OF
GATHERING DEEP SEA SPONGES IN WATERS WITHIN ITS TERRITORIAL LIMITS. 
THIS COURT SUSTAINED THE STATE'S LEGISLATIVE JURISDICTION TO REGULATE
THE CONDUCT OF ITS OWN CITIZENS.  THUS THE COURT SAID:  "EVEN IF IT
WERE ASSUMED THAT THE LOCUS OF THE OFFENSE WAS OUTSIDE THE TERRITORIAL
WATERS OF FLORIDA, IT WOULD NOT FOLLOW THAT THE STATE COULD NOT
PROHIBIT ITS OWN CITIZENS FROM THE USE OF THE . . . DIVERS' EQUIPMENT
AT THAT PLACE.  NO QUESTION AS TO THE AUTHORITY OF THE UNITED STATES
OVER THESE WATERS, OR OVER THE SPONGE FISHERY, IS HERE INVOLVED.  NO
RIGHT OF A CITIZEN OF ANOTHER STATE IS HERE ASSERTED.  THE QUESTION IS
SOLELY BETWEEN APPELLANT AND HIS OWN STATE . . . . IF THE UNITED STATES
MAY CONTROL THE CONDUCT OF ITS CITIZENS UPON THE HIGH SEAS,WE SEE NO
REASON WHY THE STATE OF FLORIDA MAY NOT LIKEWISE GOVERN THE CONDUCT OF
ITS CITIZENS UPON THE HIGH SEAS WITH RESPECT TO MATTERS IN WHICH THE
STATE HAS A LEGITIMATE INTEREST . . . ."  313 U.S.,AT 76-77. 

STEELE INVOLVED THE QUESTION OF WHETHER A DISTRICT COURT "HAS
JURISDICTION TO AWARD RELIEF TO AN AMERICAN CORPORATION AGAINST ACTS OF
TRADE-MARK INFRINGEMENT AND UNFAIR COMPETITION CONSUMMATED IN A FOREIGN
COUNTRY BY A CITIZEN AND RESIDENT OF THE UNITED STATES."  344 U.S.,AT
281.  THERE WAS NO QUESTION THAT PLAINTIFF HAD SUFFERED THE INJURY AND
AMERICAN COMMERCE HAD BEEN ADVERSELY AFFECTED IN THE WAY THAT THE
LANHAM ACT SOUGHT TO PREVENT.  THE COURT CONCLUDED THAT IN SUCH
CIRCUMSTANCES LIABILITY COULD NOT BE AVOIDED SIMPLY BY PERFORMING THE
FORBIDDEN ACTS IN A FOREIGN TERRITORY.  CF. CONTINENTAL ORE CO. V.
UNION CARBIDE, 370 U.S. 690, 704 (1962); UNITED STATES V. SISAL SALES
CORP., 274 U.S. 268 (1927). 

/4/  THE SECOND CIRCUIT QUITE PROPERLY RELIED ON THE BENEFICIAL
OWNERSHIP OF THE SHIP TO PERMIT RECOVERY IN BARTHOLOMEW V. UNIVERSE
TANKSHIPS, INC., 263 F.2D 437 (C.A. 2D CIR. 1959), WHERE THE INJURED
PLAINTIFF WAS AN AMERICAN DOMICILIARY.  BARTHOLOMEW, UNFORTUNATELY,
APPREHENDED WHAT I CONCEIVE TO BE UNINTENDED REVERBERATIONS IN JUSTICE
JACKSON'S LAURITZEN LANGUAGE WHICH IT ALL BUT ECHOED:  "LOOKING THROUGH
THE FACADE OF FOREIGN REGISTRATION AND INCORPORATION TO THE AMERICAN
OWNERSHIP . . . IS ESSENTIAL UNLESS THE PURPOSES OF THE JONES ACT ARE
TO BE FRUSTRATED BY AMERICAN SHIPOWNERS INTENT UPON EVADING THEIR
OBLIGATIONS UNDER THE LAW BY THE SIMPLE EXPEDIENT OF INCORPORATING IN A
FOREIGN COUNTRY AND REGISTERING THEIR VESSELS UNDER A FOREIGN FLAG." 
263 F.2D 437, 442. 

JAMES M. ESTABROOK ARGUED THE CAUSE FOR PETITIONERS.  ON THE BRIEFS
WAS GEORGE F. WOOD. 

JOSEPH B. STAHL ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY MR. ESTABROOK
AND DAVID P. H. WATSON FOR THE ROYAL GREEK GOVERNMENT, AND BY JOHN R.
SHENEMAN AND EDWIN K. REID FOR THE GREEK CHAMBER OF SHIPPING ET AL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY ARTHUR J.
MANDELL FOR THE AMERICAN TRIAL LAWYERS ASSOCIATION, AND BY ABRAHAM E.
FREEDMAN FOR THE NATIONAL MARITIME UNION OF AMERICA. 
..END :






















MOON V. MARYLAND, 398 U.S. 319 


       MOON V. MARYLAND. 

        CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

        NO. 267.  ARGUED APRIL 22, 1970-- DECIDED JUNE 8, 1970. 


AFTER PETITIONER'S FIRST CONVICTION WAS SET ASIDE ON APPEAL, HE WAS
RETRIED FOR THE SAME OFFENSE, CONVICTED, AND GIVEN A MORE SEVERE
SENTENCE THAN BEFORE.  FOLLOWING THE GRANT OF A PETITION FOR A WRIT OF
CERTIORARI TO CONSIDER THE QUESTION OF THE RETROACTIVITY OF NORTH
CAROLINA V. PEARCE, 395 U.S. 711, FACTS EMERGED FROM WHICH IT APPEARS
THAT THERE IS NO CLAIM THAT THE DUE PROCESS STANDARDS OF THAT CASE HAVE
BEEN VIOLATED HERE.  THE WRIT IS THEREFORE DISMISSED AS IMPROVIDENTLY
GRANTED. 

250 MD. 468, 243 A.2D 564, CERTIORARI DISMISSED AS IMPROVIDENTLY
GRANTED. 

PER CURIAM. 

"WHEN AT THE BEHEST OF THE DEFENDANT A CRIMINAL CONVICTION HAS BEEN
SET ASIDE AND A NEW TRIAL ORDERED, TO WHAT EXTENT DOES THE CONSTITUTION
LIMIT THE IMPOSITION OF A HARSHER SENTENCE AFTER CONVICTION UPON
RETRIAL?"  THIS WAS THE QUESTION THE COURT DEALT WITH LAST TERM IN
NORTH CAROLINA V. PEARCE, 395 U.S. 711.  WE HELD IN THAT CASE THAT
THERE EXISTS NO ABSOLUTE CONSTITUTIONAL BAR TO THE IMPOSITION OF A
HARSHER SENTENCE UPON RETRIAL,BUT THAT DUE PROCESS "REQUIRED THAT
VINDICTIVENESS AGAINST A DEFENDANT FOR HAVING SUCCESSFULLY ATTACKED HIS
FIRST CONVICTION MUST PLAY NO PART IN THE SENTENCE HE RECEIVES AFTER A
NEW TRIAL."  ID., AT 725.  "IN ORDER TO ASSURE THE ABSENCE OF SUCH A
MOTIVATION," WE HELD THAT "WHENEVER A JUDGE IMPOSES A MORE SEVERE
SENTENCE UPON A DEFENDANT AFTER A NEW TRIAL, THE REASONS FOR HIS DOING
SO MUST AFFIRMATIVELY APPEAR.  THOSE REASONS MUST BE BASED UPON
OBJECTIVE INFORMATION CONCERNING IDENTIFIABLE CONDUCT ON THE PART OF
THE DEFENDANT OCCURRING AFTER THE TIME OF THE ORIGINAL SENTENCING
PROCEEDING."  ID., AT 726.  THE PEARCE CASE WAS DECIDED ON JUNE 23,
1969. 

IN THE PRESENT CASE THE PETITIONER WAS FOUND GUILTY OF ARMED ROBBERY
BY A MARYLAND JURY AND SENTENCED BY THE TRIAL JUDGE TO 12 YEARS'
IMPRISONMENT.  THE CONVICTION WAS SET ASIDE ON APPEAL BY THE MARYLAND
COURT OF APPEALS.  AT A SECOND TRIAL FOR THE SAME OFFENSE IN 1966 THE
PETITIONER WAS AGAIN CONVICTED, AND THIS TIME THE TRIAL JUDGE IMPOSED A
SENTENCE OF 20 YEARS' IMPRISONMENT, LESS FULL CREDIT FOR TIME SERVED
UNDER THE ORIGINAL SENTENCE.  THIS SECOND CONVICTION WAS AFFIRMED ON
APPEAL.  250 MD. 468, 243 A.2D 564.  WE GRANTED CERTIORARI, 395 U.S.
975, REQUESTING COUNSEL TO BRIEF AND ARGUE THE QUESTION OF THE
RETROACTIVITY OF NORTH CAROLINA V. PEARCE, SUPRA. 

THE FACTS THAT HAVE EMERGED SINCE THE GRANT OF CERTIORARI IMPEL US
TO DISMISS THE WRIT AS IMPROVIDENTLY GRANTED.  AS AN APPENDIX TO ITS
BRIEF, THE RESPONDENT HAS FILED AN AFFIDAVIT OF THE JUDGE WHO PRESIDED
AT THE SECOND TRIAL, SETTING OUT IN DETAIL THE REASONS HE IMPOSED THE
20-YEAR PRISON SENTENCE.  THOSE REASONS CLEARLY INCLUDE "OBJECTIVE
INFORMATION CONCERNING IDENTIFIABLE CONDUCT ON THE PART OF THE
DEFENDANT OCCURRING AFTER THE TIME OF THE ORIGINAL SENTENCING
PROCEEDING."  BUT THE DISPOSITIVE DEVELOPMENT IS THAT COUNSEL FOR THE
PETITIONER HAS NOW MADE CLEAR THAT THERE IS NO CLAIM IN THIS CASE THAT
THE DUE PROCESS STANDARD OF PEARCE WAS VIOLATED.  AS COUNSEL
FORTHRIGHTLY STATED IN THE COURSE OF ORAL ARGUMENT, "I HAVE NEVER
CONTENDED THAT JUDGE PUGH WAS VINDICTIVE." 

ACCORDINGLY, THE WRIT IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN WOULD REVERSE THE JUDGMENT BELOW BASED ON HIS
SEPARATE OPINIONS IN DESIST V. UNITED STATES, 394 U.S. 244, 256, AND IN
NORTH CAROLINA V. PEARCE, 395 U.S. 711, 744. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

PETITIONER WAS FIRST CONVICTED OF ARMED ROBBERY IN 1964 AND RECEIVED
A 12-YEAR SENTENCE.  ON APPEAL THE JUDGMENT WAS REVERSED.  HE WAS TRIED
AGAIN IN 1966 FOR ARMED ROBBERY, AGAIN CONVICTED, AND THIS TIME
RECEIVED A SENTENCE OF 20 YEARS.  UNDER MD. ANN. CODE, ART. 27, SEC.
488 (1967 REPL.  VOL.), THE MAXIMUM PUNISHMENT POSSIBLE WAS 20 YEARS. 
AS I STATED IN MY SEPARATE OPINION IN NORTH CAROLINA V. PEARCE, 395
U.S. 711, 726, 727:  "HE (THE DEFENDANT) RISKS THE MAXIMUM PERMISSIBLE
PUNISHMENT WHEN FIRST TRIED.  THAT RISK HAVING BEEN FACED ONCE NEED NOT
BE FACED AGAIN."  THAT IS THE RESPECT I THINK IS DUE THE CONSTITUTIONAL
GUARANTEE AGAINST DOUBLE JEOPARDY. 

I WOULD REVERSE THE JUDGMENT BELOW. 

ROBERT ANTHONY JACQUES ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

EDWARD F. BORGERDING, ASSISTANT ATTORNEY GENERAL OF MARYLAND, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS FRANCIS B. BURCH,
ATTORNEY GENERAL. 
..END :






















DEPARTMENT OF SOCIAL SERVICES OF IOWA V. DIMERY, 398 U.S. 322 


       DEPARTMENT OF SOCIAL SERVICES OF IOWA ET AL. V. DIMERY ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF IOWA. 

        NO. 1491.  DECIDED JUNE 8, 1970. 


VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION OF THE APPELLEES FOR LEAVE TO PROCEED IN FORMA PAUPERIS
IS GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR RECONSIDERATION IN LIGHT OF REETZ V. BOZANICH, 397
U.S. 82. 

MR. JUSTICE DOUGLAS DISSENTS FROM THE REMAND OF THIS CASE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :



CHANDLER V. JUDICIAL COUNCIL, 398 U.S. 74 


       CHANDLER, U.S. DISTRICT JUDGE V. JUDICIAL COUNCIL OF THE

           TENTH CIRCUIT. 

        ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF
PROHIBITION

AND/OR MANDAMUS. 

        NO. 2, MISC.  ARGUED DECEMBER 10, 1969-- DECIDED JUNE 1,

           1970. 


ON DECEMBER 13, 1965, RESPONDENT, THE JUDICIAL COUNCIL OF THE TENTH
CIRCUIT, ACTING UNDER 28 U.S.C. 332, ISSUED AN ORDER FINDING THAT
PETITIONER WAS UNABLE OR UNWILLING TO DISCHARGE HIS DUTIES EFFICIENTLY
AS A DISTRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA (HEREAFTER THE
DISTRICT) AND DIRECTING THAT HE SHOULD NOT ACT IN ANY CASE THEN OR
THEREAFTER PENDING THEREIN, THAT UNTIL THE COUNCIL'S FURTHER ORDER NO
CASES FILED IN THE DISTRICT WERE TO BE ASSIGNED TO PETITIONER, AND THAT
IF ALL THE ACTIVE JUDGES IN THE DISTRICT COULD NOT AGREE UPON THE
DIVISION OR BUSINESS AND CASE ASSIGNMENTS NECESSITATED BY THE ORDER,
THE COUNCIL, ACTING UNDER 28 U.S.C. 137, WOULD MAKE SUCH DIVISION AND
ASSIGNMENTS AS IT DEEMED PROPER.  PETITIONER FILED WITH THIS COURT A
MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF PROHIBITION AND/OR
MANDAMUS DIRECTED TO THE COUNCIL AND SOUGHT A STAY OF ITS ORDER.  THE
COURT DENIED A STAY ON THE GROUND THAT THE ORDER WAS INTERLOCUTORY AND
THAT PETITIONER WOULD BE PERMITTED TO APPEAR AT FURTHER PROCEEDINGS
BEFORE THE COUNCIL.  A HEARING, SCHEDULED FOR FEBRUARY 10, 1966, WAS
NOT HELD, THE COUNCIL HAVING BEEN ADVISED THAT NO DISTRICT JUDGE,
INCLUDING PETITIONER, DESIRED A HEARING.  ON FEBRUARY 4 THE COUNCIL,
ACTING UNDER SECS. 137 AND 332, ISSUED AN ORDER, WHICH SUPERSEDED ITS
PREVIOUS ORDERS DEALING WITH PETITIONER, AUTHORIZING PETITIONER TO SIT
ON CASES ASSIGNED TO HIM BEFORE DECEMBER 28, 1965, AND ASSIGNING TO
OTHER JUDGES OF THE DISTRICT CASES FILED THEREAFTER.  ON SEPTEMBER 1,
1967, THOSE JUDGES AND PETITIONER (WHO HAD PREVIOUSLY EXPRESSED
DISAGREEMENT WITH THE FEBRUARY 4 ORDER AND THE COUNCIL'S "ILLEGAL
EFFORT" TO CREATE A SITUATION IN WHICH IT COULD ASSIGN CASES UNDER 28
U.S.C. 137) ADVISED THE COUNCIL THAT "THE CURRENT ORDER FOR THE
DIVISION OF BUSINESS IN THIS DISTRICT IS AGREEABLE UNDER THE
CIRCUMSTANCES."  THE COUNCIL, WHICH HAD CONSIDERED MODIFYING THE
FEBRUARY 4, 1966, ORDER IN VIEW OF THE SMALL NUMBER OF CASES PETITIONER
HAD THEN PENDING, THEREUPON LET THE FEBRUARY 4 ORDER STAND.  PETITIONER
CONTENDS THAT THE COUNCIL'S ORDERS RELATING TO THE ASSIGNMENT OF CASES
IN THE DISTRICT IMPOSE UNLAWFUL CONDITIONS ON THE EXERCISE OF HIS
CONSTITUTIONAL POWERS AS A JUDGE AND USURP THE IMPEACHMENT POWERS
VESTED IN CONGRESS.  HE CLAIMS THAT HIS ACQUIESCENCE IN THE DIVISION OF
THE BUSINESS OF THE DISTRICT RESULTED FROM "DURESS" OF THE DECEMBER 13
ORDER AND THAT IT WAS ALSO A MATTER OF "STRATEGY" TO AVOID THE
APPEARANCE OF THE ABSENCE OF AGREEMENT AMONG THE DISTRICT JUDGES AS TO
A DIVISION OF WORK WHICH WOULD ENABLE THE COUNCIL TO ACT UNDER SEC.
137.  THE COUNCIL CONTENDS, INTER ALIA, THAT ITS ACTION WAS SOLELY
ADMINISTRATIVE AND CANNOT BE REVIEWED AS AN ORIGINAL PROCEEDING BY THIS
COURT.  HELD:  WHETHER OR NOT THE COUNCIL'S ACTION IS REVIEWABLE HERE,
PETITIONER, IN THE PRESENT POSTURE OF THIS CASE, IS NOT ENTITLED TO THE
EXTRAORDINARY REMEDY THAT HE SEEKS SINCE, AFTER EXPRESSLY ACQUIESCING
IN THE DIVISION OF BUSINESS IN THE DISTRICT, FOLLOWING REVOCATION OF
THE ORDER OF DECEMBER 13, 1965, BY THE ORDER OF FEBRUARY 4, 1966, HE
HAS NOT SOUGHT RELIEF EITHER FROM THE COUNCIL OR OTHER TRIBUNAL, AND
SUCH RELIEF MAY YET BE OPEN TO HIM.  PP. 84-89. 

MOTION DENIED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A UNITED STATES DISTRICT JUDGE, FILED A MOTION FOR LEAVE
TO FILE A PETITION FOR A WRIT OF MANDAMUS OR ALTERNATIVELY A WRIT OF
PROHIBITION ADDRESSED TO THE JUDICIAL COUNCIL OF THE TENTH CIRCUIT. 
HIS PETITION SEEKS RESOLUTION OF QUESTIONS OF FIRST IMPRESSION
CONCERNING, INTER ALIA, THE SCOPE AND CONSTITUTIONALITY OF THE POWERS
OF THE JUDICIAL COUNCILS UNDER 28 U.S.C. 137 AND 332.  /1/  THE
JUDICIAL COUNCIL OF EACH FEDERAL CIRCUIT IS, UNDER THE PRESENT STATUTE,
COMPOSED OF THE ACTIVE CIRCUIT JUDGES OF THE CIRCUIT.  PETITIONER HAS
ASKED THIS COURT TO ISSUE AN ORDER UNDER THE ALL WRITS ACT /2/  TELLING
THE COUNCIL TO "CEASE ACTING (IN) VIOLATION OF ITS POWERS AND IN
VIOLATION OF JUDGE CHANDLER'S RIGHTS AS A FEDERAL JUDGE AND AN AMERICAN
CITIZEN."  THE BACKGROUND FACTS ARE OF SOME IMPORTANCE. 

        1 

ON DECEMBER 13, 1965, THE JUDICIAL COUNCIL OF THE TENTH CIRCUIT
CONVENED IN SPECIAL SESSION /3/  AND ADOPTED AN ORDER WHICH REFLECTED A
LONG HISTORY OF CONTROVERSY BETWEEN PETITIONER AND THE COUNCIL
CONCERNING THE CONDUCT OF THE WORK OF THE DISTRICT COURT ASSIGNED TO
PETITIONER.  THE ORDER OF DECEMBER 13 PURPORTED TO ISSUE UNDER THE
AUTHORITY OF 28 U.S.C. 332, SUPRA, N. 1, AND RECITED THAT DURING 

"THE PAST FOUR YEARS THE JUDICIAL COUNCIL AT MANY MEETINGS HAS
DISCUSSED AND CONSIDERED THE BUSINESS OF THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF OKLAHOMA AND HAS DONE SO WITH
PARTICULAR REGARD TO THE EFFECT THEREON OF THE ATTITUDE AND CONDUCT OF
JUDGE CHANDLER WHO, AS THE CHIEF JUDGE OF THAT DISTRICT, IS PRIMARILY
RESPONSIBLE FOR THE ADMINISTRATION OF SUCH BUSINESS . . . ."  THE ORDER
NOTED THAT DURING THAT PERIOD PETITIONER HAD BEEN A PARTY DEFENDANT IN
BOTH CIVIL AND CRIMINAL LITIGATION, AS WELL AS THE SUBJECT OF TWO
APPLICATIONS TO DISQUALIFY HIM IN LITIGATION IN WHICH ON CHALLENGE
PETITIONER HAD REFUSED TO DISQUALIFY HIMSELF.  /4/  THE ORDER CONTINUED
WITH A FINDING THAT 

"JUDGE CHANDLER IS PRESENTLY UNABLE, OR UNWILLING, TO DISCHARGE
EFFICIENTLY THE DUTIES OF HIS OFFICE; THAT A CHANGE MUST BE MADE IN THE
DIVISION OF BUSINESS AND THE ASSIGNMENT OF CASES IN THE WESTERN
DISTRICT OF OKLAHOMA; AND THAT THE EFFECTIVE AND EXPEDITIOUS
ADMINISTRATION OF THE BUSINESS OF THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA REQUIRES THE ORDERS HEREIN MADE." 
EXPRESSLY INVOKING THE POWERS OF THE JUDICIAL COUNCIL UNDER 28 U.S.C.
332, SUPRA, N. 1, THE ORDER DIRECTED THAT 

"UNTIL THE FURTHER ORDER OF THE JUDICIAL COUNCIL, THE HONORABLE
STEPHEN S. CHANDLER SHALL TAKE NO ACTION WHATSOEVER IN ANY CASE OR
PROCEEDING NOW OR HEREAFTER PENDING IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA; THAT ALL CASES AND PROCEEDINGS
NOW ASSIGNED TO OR PENDING BEFORE HIM SHALL BE REASSIGNED TO AND AMONG
THE OTHER JUDGES OF SAID COURT; AND THAT UNTIL THE FURTHER ORDER OF THE
JUDICIAL COUNCIL NO CASES OR PROCEEDINGS FILED OR INSTITUTED IN THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA SHALL
BE ASSIGNED TO HIM FOR ANY ACTION WHATSOEVER. 

     "IT IS FURTHER ORDERED THAT IN THE EVENT THE ACTIVE JUDGES OF

THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF

  OKLAHOMA, INCLUDING JUDGE CHANDLER, CANNOT AGREE AMONG THEMSELVES

  UPON THE DIVISION OF BUSINESS AND ASSIGNMENT OF CASES MADE

  NECESSARY BY THIS ORDER, THE JUDICIAL COUNCIL, UPON SUCH

  DISAGREEMENT BEING BROUGHT TO ITS ATTENTION, WILL ACT UNDER 28

  U.S.C. 137 AND MAKE SUCH DIVISION AND ASSIGNMENT AS IT DEEMS

  PROPER." 

COPIES OF THE ABOVE ORDER WERE FILED IN THE COURT OF APPEALS FOR THE
TENTH CIRCUIT AND IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA ON DECEMBER 27 AND 28, RESPECTIVELY.  ANOTHER COPY
WAS SERVED ON JUDGE CHANDLER BY A U.S. MARSHAL. 

ON JANUARY 6, 1966, AS PREVIOUSLY NOTED, JUDGE CHANDLER FILED WITH
THIS COURT HIS MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF
PROHIBITION AND/OR MANDAMUS DIRECTED TO THE JUDICIAL COUNCIL.  HE ALSO
SOUGHT A STAY OF ITS ORDER.  THE SOLICITOR GENERAL, APPEARING ON BEHALF
OF THE JUDICIAL COUNCIL, ASKED THIS COURT TO DENY THE STAY APPLICATION
ON THE COUNCIL'S REPRESENTATION THAT THE ORDER OF DECEMBER 13 WAS ONLY
TEMPORARY PENDING PROMPT FURTHER INQUIRY INTO JUDGE CHANDLER'S
ADMINISTRATION OF THE BUSINESS OF HIS COURT.  THE STAY WAS DENIED ON
JANUARY 21, 1966, ON THE GROUND THAT THE ORDER WAS "ENTIRELY
INTERLOCUTORY IN CHARACTER PENDING PROMPT FURTHER PROCEEDINGS . . . AND
THAT AT SUCH PROCEEDINGS JUDGE CHANDLER WILL BE PERMITTED TO APPEAR
BEFORE THE COUNCIL, WITH COUNSEL . . . ."  382 U.S. 1003. 

ON JANUARY 24, 1966, JUDGE CHANDLER ADDRESSED A LETTER TO HIS FELLOW
DISTRICT JUDGES INDICATING THAT HE OBJECTED TO THE REMOVAL AND
REASSIGNMENT OF CASES PREVIOUSLY ASSIGNED AND PENDING BEFORE HIM ON
DECEMBER 28, 1965, BUT THAT HE WAS NOT IN DISAGREEMENT WITH THEM AS TO
THE ASSIGNMENT OF ALL NEW CASES TO JUDGES OTHER THAN HIMSELF.  JUDGE
CHANDLER ASSERTED CONTINUING JUDICIAL AUTHORITY, HOWEVER, OVER THE
CASES PENDING BEFORE HIM AS OF DECEMBER 28.  THE FOLLOWING DAY THE
JUDGES OF THE WESTERN DISTRICT OF OKLAHOMA ADVISED THE JUDICIAL COUNCIL
THAT ALL JUDGES OF THAT DISTRICT HAD AGREED ON THE DIVISION OF NEW
BUSINESS FILED IN THAT COURT, BUT THAT THEY COULD NOT AGREE ON THE
ASSIGNMENT TO OTHER JUDGES OF CASES THEN PENDING BEFORE JUDGE
CHANDLER. 

ON JANUARY 27, 1966, THE JUDICIAL COUNCIL AGAIN CONVENED IN SPECIAL
SESSION AND ORDERED A HEARING ON FEBRUARY 10, 1966, IN OKLAHOMA CITY AT
WHICH JUDGE CHANDLER WAS INVITED TO APPEAR, WITH COUNSEL IF HE
DESIRED.  HOWEVER, BY FEBRUARY 4,WHEN THE COUNCIL MET AGAIN, IT HAD
BEEN ADVISED THAT NO JUDGE OF THE WESTERN DISTRICT, INCLUDING JUDGE
CHANDLER, DESIRED TO BE HEARD PURSUANT TO THE ORDER FOR HEARING. 
ACCORDINGLY, NO HEARING TOOK PLACE. 

AT THIS SAME MEETING ON FEBRUARY 4, 1966, THE COUNCIL CONCLUDED THAT
THERE WAS A DISAGREEMENT AMONG THE DISTRICT JUDGES OF THE WESTERN
DISTRICT AS TO THE DIVISION OF BUSINESS; IT REACHED THIS CONCLUSION ON
THE BASIS OF THE DISAGREEMENT BETWEEN JUDGE CHANDLER AND THE OTHER
DISTRICT JUDGES AS TO THE REASSIGNMENT OF CASES PREVIOUSLY ASSIGNED TO
JUDGE CHANDLER AS OF DECEMBER 28, 1965.  THE COUNCIL ACCORDINGLY,
ACTING UNDER 28 U.S.C. 137 AND 332, ENTERED AN ORDER AUTHORIZING JUDGE
CHANDLER TO CONTINUE TO SIT ON CASES FILED AND ASSIGNED TO HIM PRIOR TO
DECEMBER 28, 1965; THE ORDER ASSIGNED TO THE OTHER JUDGES OF THE
WESTERN DISTRICT CASES FILED AFTER THAT DATE.  THIS ORDER OF FEBRUARY 4
RECITED FURTHER THAT 

     "4.  THE DIVISION OF BUSINESS AND ASSIGNMENT OF CASES MADE

  HEREIN MAY BE AMENDED OR MODIFIED BY WRITTEN ORDER SIGNED BY ALL

  ACTIVE JUDGES OF THE WESTERN DISTRICT OF OKLAHOMA, PROVIDED THAT

  NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS PREVENTING JUDGE

  CHANDLER FROM SURRENDERING ANY PENDING CASES FOR RE-ASSIGNMENT TO

  ANOTHER ACTIVE JUDGE OR TO PREVENT TRANSFER BETWEEN JUDGES TO

WHOM NEW BUSINESS IS ASSIGNED PURSUANT TO THIS ORDER. 

 "5.  THIS ORDER SUPERSEDES THE ORDERS OF THE COUNCIL ENTERED ON

  DECEMBER 13, 1965, AND ON JANUARY 27, 1966, ENTITLED 'IN THE

  MATTER OF THE HONORABLE STEPHEN S. CHANDLER, UNITED STATES

  DISTRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA' AND SHALL

  REMAIN IN EFFECT UNTIL THE FURTHER ORDER OF THE COUNCIL." 

ON FEBRUARY 9, 1966, THE SOLICITOR GENERAL FILED A MEMORANDUM ON
BEHALF OF THE COUNCIL SUGGESTING THAT IN LIGHT OF THE ABOVE
DEVELOPMENTS, NAMELY THE CONFIRMATION OF JUDGE CHANDLER'S AUTHORITY TO
DISPOSE OF THE CASE LOAD THEN BEFORE HIM AND THE ASSIGNMENT OF NEW
BUSINESS IN ACCORDANCE WITH AN ORDER PREVIOUSLY AGREED TO BY JUDGE
CHANDLER, THE CASE HAD BECOME MOOT SINCE THERE WAS NOTHING MORE TO
ARGUE ABOUT.  TO THIS MEMORANDUM JUDGE CHANDLER FILED A REPLY ON
FEBRUARY 25, 1966, CONTESTING THE SUGGESTION THAT HE HAD ACQUIESCED IN
THE COUNCIL'S ACTIONS.  JUDGE CHANDLER ARGUED THAT HIS ACQUIESCENCE IN
THE DIVISION OF NEW BUSINESS SETTLED UPON BY HIS FELLOW DISTRICT JUDGES
WAS GIVEN DELIBERATELY FOR REASONS OF "STRATEGY" IN ORDER TO PREVENT
ANY POSSIBILITY THAT THE COUNCIL COULD FIND THAT "THE DISTRICT JUDGES .
. . ARE UNABLE TO AGREE UPON THE ADOPTION OF RULES OR ORDERS" FOR THE
DISTRIBUTION OF BUSINESS AND ASSIGNMENT OF CASES UNDER 28 U.S.C. 137. 

A SUPPLEMENTAL MEMORANDUM FILED BY THE SOLICITOR GENERAL ON BEHALF
OF THE COUNCIL EXPRESSED THE LATTER'S POSITION THAT JUDGE CHANDLER
SHOULD DISPOSE OF HIS PENDING DOCKET OF PRE-DECEMBER 28, 1965, CASES
BEFORE SEEKING ASSIGNMENT OF NEW CASES.  IN VIEW OF JUDGE CHANDLER'S
EXPRESSED DISAGREEMENT WITH THE FEBRUARY 4 ORDER THE SOLICITOR GENERAL
WITHDREW THE SUGGESTION OF MOOTNESS.  LATER IN MARCH 1966 JUDGE
CHANDLER SUBMITTED A REPLY TO THAT SUPPLEMENTAL MEMORANDUM ASSERTING
THAT THE COUNCIL WAS CONTINUING TO ACT BEYOND ITS AUTHORITY BY
PURPORTING TO REQUIRE THAT HE CERTIFY TO IT HIS SUBSEQUENT WILLINGNESS
AND ABILITY TO UNDERTAKE NEW BUSINESS.  HE CONTENDED THAT THE
SUPPLEMENTAL MEMORANDUM SETTING FORTH THE CONDITION THAT HE MUST APPLY
FOR ASSIGNMENT WAS IN EFFECT A NEW ORDER FIXING STILL ANOTHER CONDITION
ON THE EXERCISE OF HIS JUDICIAL OFFICE. 

ON JULY 12, 1967, THE JUDICIAL COUNCIL CONVENED AND, IN LIGHT OF A
REPORT FROM THE DISTRICT JUDGES OF THE WESTERN DISTRICT SHOWING THAT
JUDGE CHANDLER HAD ONLY 12 CASES THEN PENDING, CONCLUDED THAT A
MODIFICATION OF THE ORDER OF FEBRUARY 4, 1966, MIGHT BE IN ORDER.  THE
COUNCIL TRANSMITTED A COPY OF THE MINUTES OF THE MEETING TO THE
DISTRICT JUDGES AND ASKED THEM TO CONSIDER ANEW AND AGREE UPON A
DIVISION OF BUSINESS WITHIN THE WESTERN DISTRICT.  ON AUGUST 28, 1967,
JUDGE CHANDLER WROTE HIS DISTRICT JUDGE COLLEAGUES CLAIMING THAT THE
COUNCIL'S ACTION OF JULY 12 WAS BUT ANOTHER "ILLEGAL EFFORT" TO CREATE
A SITUATION IN WHICH THE COUNCIL COULD ASSERT ITS POWERS UNDER 28
U.S.C. 137 TO ASSIGN AND APPORTION CASES. 

ON SEPTEMBER 1, 1967, THE WESTERN DISTRICT JUDGES, INCLUDING JUDGE
CHANDLER, ADVISED THE JUDICIAL COUNCIL THAT "THE CURRENT ORDER FOR THE
DIVISION OF BUSINESS IN THIS DISTRICT IS AGREEABLE UNDER THE
CIRCUMSTANCES."  WHEN THE COUNCIL CONVENED TWO WEEKS LATER, IT NOTED
THE LETTER EXPRESSING AGREEMENT AND CONCLUDED THAT THERE NEED BE NO NEW
ORDER IN THE CASE; ACCORDINGLY THE ORDER OF FEBRUARY 4 WAS LEFT IN
EFFECT.  ALL OF THESE DEVELOPMENTS WERE REPORTED TO THE CLERK OF THIS
COURT AND ARE PART OF THE RECORD. 

        2 

IN ESSENCE PETITIONER CHALLENGES ALL ORDERS OF THE JUDICIAL COUNCIL
RELATING TO ASSIGNMENT OF CASES IN THE WESTERN DISTRICT OF OKLAHOMA AS
FIXING CONDITIONS ON THE EXERCISE OF HIS CONSTITUTIONAL POWERS AS A
JUDGE.  SPECIFICALLY, PETITIONER URGES THAT THE COUNCIL HAS USURPED THE
IMPEACHMENT POWER, COMMITTED BY THE CONSTITUTION TO THE CONGRESS
EXCLUSIVELY.  WHILE CONCEDING THAT THE STATUTE HERE INVOKED CONFERS
SOME POWERS ON THE JUDICIAL COUNCIL, PETITIONER CONTENDS THAT THE
LEGITIMATE ADMINISTRATIVE PURPOSES TO WHICH IT MAY BE TURNED DO NOT
INCLUDE STRIPPING A JUDGE OF HIS JUDICIAL FUNCTIONS AS HE CLAIMS WAS
DONE HERE. 

THE JUDICIAL COUNCIL CONTENDS THAT PETITIONER SEEKS TO INVOKE THE
ORIGINAL JURISDICTION OF THIS COURT IN A CASE TO WHICH SUCH
JURISDICTION DOES NOT EXTEND.  THE COUNCIL ARGUES THAT THE PURELY
ADMINISTRATIVE ACTION TAKEN IN THIS CASE HAS NEVER BEEN REVIEWED BY ANY
COURT AND CANNOT NOW BE REVIEWED IN AN ORIGINAL PROCEEDING UNDER THE
GUISE OF A CLAIM UNDER THE ALL WRITS ACT. 

THE JUDICIAL COUNCIL ALSO CONTENDS THAT THE ORDER OF DECEMBER 13,
1965, HAS BEEN ALTOGETHER SUPERSEDED BY THE ORDER OF FEBRUARY 4, 1966. 
THE LATTER, IN ACCORDANCE WITH PETITIONER'S DESIRE, GAVE BACK THOSE
CASES THAT HAD BEEN TEMPORARILY WITHDRAWN FROM JUDGE CHANDLER.  IT ALSO
CONTINUED IN FORCE THE ASSIGNMENT AND DIVISION OF JUDICIAL BUSINESS
AGREED UPON BY THE DISTRICT JUDGES INCLUDING JUDGE CHANDLER. 
ALTERNATIVELY, THE COUNCIL CONTENDS THAT EVEN ABSENT PETITIONER'S
AGREEMENT ON THE DIVISION OF CASES, NONETHELESS THE COUNCIL'S ACTION IS
AUTHORIZED BY 28 U.S.C. 137 AND 332. 

THE SOLICITOR GENERAL, WHO HAS FILED A BRIEF AS AMICUS CURIAE,
CONTENDS THAT THIS COURT HAS JURISDICTION TO ENTERTAIN THE PETITION FOR
A WRIT OF MANDAMUS OR PROHIBITION WHEN A JUDICIAL COUNCIL ORDER IS
DIRECTED TO A DISTRICT JUDGE BECAUSE IT ACTED AS A JUDICIAL, NOT AN
ADMINISTRATIVE, TRIBUNAL FOR PURPOSES OF MEETING THE REQUIREMENT THAT
THE CASE FALL WITHIN THIS COURT'S APPELLATE JURISDICTION.  THE
SOLICITOR GENERAL SUGGESTS THAT THE COUNCIL IS NOTHING MORE NOR LESS
THAN THE COURT OF APPEALS SITTING EN BANC, AND THAT THE PROCEEDINGS IN
THE PRESENT CASE MAY BE ANALOGIZED TO A DISBARMENT.  /5/  FROM THIS THE
SOLICITOR GENERAL CONCLUDES THAT THE CASE FALLS WITHIN THE
EXTRAORDINARY RELIEF AVAILABLE THROUGH THE ALL WRITS ACT.  THAT
CONCLUSION IN TURN RESTS ON THE FURTHER ASSUMPTION THAT THIS COURT'S
SUPERVISORY AUTHORITY OVER LOWER COURTS UNDER SECS. 13 AND 14 OF THE
FIRST JUDICIARY ACT, 1 STAT. 80, 81, WAS NOT WITHDRAWN WHEN THE LATTER
TWO SECTIONS WERE REPEALED IN FAVOR OF THE ALL WRITS ACT BY THE
REVISION OF THE JUDICIAL CODE IN 1948.  THE SOLICITOR GENERAL
CONCLUDES, HOWEVER, THAT EVEN THOUGH THERE IS APPELLATE JURISDICTION IN
THIS COURT, NONETHELESS IT OUGHT NOT TO BE EXERCISED SINCE THE ORDER OF
DECEMBER 13 HAS BEEN SUPERSEDED FOR FOUR YEARS BY THE ORDER OF FEBRUARY
4, THE TERMS OF WHICH HAVE BEEN EXPRESSLY APPROVED BY PETITIONER.  THE
RESPONDENT COUNCIL ALSO URGES THIS POINT.              3 

WHETHER THE ACTION TAKEN BY THE COUNCIL WITH RESPECT TO THE DIVISION
OF BUSINESS IN JUDGE CHANDLER'S DISTRICT FALLS TO ONE SIDE OR THE OTHER
OF THE LINE DEFINING THE MAXIMUM PERMISSIBLE INTERVENTION CONSISTENT
WITH THE CONSTITUTIONAL REQUIREMENT OF JUDICIAL INDEPENDENCE IS THE
ULTIMATE QUESTION OF WHICH REVIEW IS SOUGHT IN THE PETITION NOW BEFORE
US.  THE DISSENTING VIEW OF THIS CASE SEEMS TO BE THAT THE ACTION OF
THE JUDICIAL COUNCIL RELATING TO ASSIGNMENT OF CASES IS AN IMPINGEMENT
ON JUDICIAL INDEPENDENCE.  THERE CAN, OF COURSE, BE NO DISAGREEMENT
AMONG US AS TO THE IMPERATIVE NEED FOR TOTAL AND ABSOLUTE INDEPENDENCE
OF JUDGES IN DECIDING CASES OR IN ANY PHASE OF THE DECISIONAL
FUNCTION.  BUT IT IS QUITE ANOTHER MATTER TO SAY THAT EACH JUDGE IN A
COMPLEX SYSTEM SHALL BE THE ABSOLUTE RULER OF HIS MANNER OF CONDUCTING
JUDICIAL BUSINESS.  THE QUESTION IS WHETHER CONGRESS CAN VEST IN THE
JUDICIAL COUNCIL POWER TO ENFORCE REASONABLE STANDARDS AS TO WHEN AND
WHERE COURT SHALL BE HELD, HOW LONG A CASE MAY BE DELAYED IN DECISION,
WHETHER A GIVEN CASE IS TO BE TRIED, AND MANY OTHER ROUTINE MATTERS. 
AS TO THESE THINGS-- AND INDEED AN ALMOST INFINITE VARIETY OF OTHERS OF
AN ADMINISTRATIVE NATURE-- CAN EACH JUDGE BE AN ABSOLUTE MONARCH AND
YET HAVE A COMPLEX JUDICIAL SYSTEM FUNCTION EFFICIENTLY? 

THE LEGISLATIVE HISTORY OF 28 U.S.C. 332 AND RELATED STATUTES IS
CLEAR THAT SOME MANAGEMENT POWER WAS BOTH NEEDED AND GRANTED.  /6/ THAT
IS PRECISELY WHAT A GROUP OF DISTINGUISHED CHIEF JUDGES AND OTHERS SEEM
TO HAVE HAD IN MIND WHEN, IN 1939, CONGRESS WAS URGED BY CHIEF JUSTICE
HUGHES, CHIEF JUDGE GRONER, JUDGES PARKER, STEPHENS AND BIGGS, AND
OTHERS TO GIVE JUDGES A STATUTORY FRAMEWORK AND POWER WHEREBY THEY
MIGHT "PUT THEIR OWN HOUSE IN ORDER." 

MANY COURTS-- INCLUDING FEDERAL COURTS-- HAVE INFORMAL, UNPUBLISHED
RULES WHICH, FOR EXAMPLE, PROVIDE THAT WHEN A JUDGE HAS A GIVEN NUMBER
OF CASES UNDER SUBMISSION, HE WILL NOT BE ASSIGNED MORE CASES UNTIL
OPINIONS AND ORDERS ISSUE ON HIS "BACKLOG."  THESE ARE REASONABLE,
PROPER, AND NECESSARY RULES, AND THE NEED FOR ENFORCEMENT CANNOT
REASONABLY BE DOUBTED.  THESE INTERNAL RULES DO NOT COME TO PUBLIC
NOTICE SIMPLY BECAUSE REASONABLE JUDGES ACKNOWLEDGE THEIR NECESSITY AND
ABIDE BY THEIR INTENT.  BUT IF ONE JUDGE IN ANY SYSTEM REFUSES TO ABIDE
BY SUCH REASONABLE PROCEDURES IT CAN HARDLY BE THAT THE EXTRAORDINARY
MACHINERY OF IMPEACHMENT IS THE ONLY RECOURSE. 

THESE QUESTIONS HAVE LONG BEEN DISCUSSED AND DEBATED; THEY ARE NOT
EASY QUESTIONS AND THE RISKS SUGGESTED BY THE DISSENTS ARE NOT TO BE
LIGHTLY CAST ASIDE.  BUT FOR THE REASONS THAT FOLLOW WE DO NOT FIND IT
NECESSARY TO ANSWER THEM BECAUSE THE THRESHOLD QUESTION IN THIS CASE IS
WHETHER WE HAVE JURISDICTION TO ENTERTAIN THE PETITION FOR
EXTRAORDINARY RELIEF. 

THE AUTHORITY OF THIS COURT TO ISSUE A WRIT OF PROHIBITION OR
MANDAMUS "CAN BE CONSTITUTIONALLY EXERCISED ONLY INSOFAR AS SUCH WRITS
ARE IN AID OF ITS APPELLATE JURISDICTION.  MARBURY V. MADISON, 1 CRANCH
137, 173-80."  EX PARTE PERU, 318 U.S. 578, 582 (1943).  IF THE
CHALLENGED ACTION OF THE JUDICIAL COUNCIL WAS A JUDICIAL ACT OR
DECISION BY A JUDICIAL TRIBUNAL, /7/  THEN PERHAPS IT COULD BE REVIEWED
BY THIS COURT WITHOUT DOING VIOLENCE TO THE CONSTITUTIONAL REQUIREMENT
THAT SUCH REVIEW BE APPELLATE.  AS THE CONCURRING AND DISSENTING
OPINIONS AMPLY DEMONSTRATE, FINDING THE PREREQUISITES TO SUPPORT A
CONCLUSION THAT WE DO HAVE APPELLATE JURISDICTION IN THIS CASE WOULD BE
NO MEAN FEAT.  IT IS AN EXERCISE WE DECLINE TO PERFORM SINCE WE
CONCLUDE THAT IN THE PRESENT POSTURE OF THE CASE OTHER AVENUES OF
RELIEF ON THE MERITS MAY YET BE OPEN TO JUDGE CHANDLER.  SEE RESCUE
ARMY V. MUNICIPAL COURT, 331 U.S. 549, 568-575 (1947). 

JUDGE CHANDLER CONTENDS THAT HIS ACQUIESCENCE IN THE DIVISION OF
BUSINESS AGREED UPON BY HIS FELLOW JUDGES WAS GIVEN UNDER SOME KIND OF
DURESS FLOWING FROM THE COUNCIL'S ORDER OF DECEMBER 13, AND THAT IT WAS
ALSO GIVEN AS A MATTER OF "STRATEGY," SPECIFICALLY IN ORDER TO AVOID
THE APPEARANCE OF AN ABSENCE OF AGREEMENT AMONG THE DISTRICT JUDGES AS
TO A DIVISION OF WORK.  BY SO DOING HE SOUGHT TO AVOID CREATING A
SITUATION IN WHICH THE COUNCIL WOULD UNDOUBTEDLY HAVE HAD JURISDICTION
UNDER SEC. 137.  THE COUNCIL, HOWEVER, NOTING THAT THE JUDGES HAD BEEN
UNABLE TO REACH AGREEMENT AS TO THOSE CASES PREVIOUSLY ASSIGNED TO
JUDGE CHANDLER, FOUND NONETHELESS THAT A DISAGREEMENT EXISTED.  DESPITE
HIS APPARENT ACQUIESCENCE, JUDGE CHANDLER CONTENDS THAT HIS ACTIONS
SINCE THEN BELIE HIS WORDS; SPECIFICALLY THAT HIS SUBSEQUENT ATTACK IN
THIS COURT ESTABLISHED HIS DISAGREEMENT. 

WHATEVER THE MERITS OF THIS APPARENT ATTEMPT TO HAVE IT BOTH WAYS,
ONE THING IS CLEAR: EXCEPT FOR THE EFFORT TO SEEK THE AID OF THIS
COURT, JUDGE CHANDLER HAS NEVER ONCE GIVING HIS WRITTEN ACQUIESCENCE IN
THE DIVISION OF BUSINESS SOUGHT ANY RELIEF FROM EITHER THE COUNCIL OR
SOME OTHER TRIBUNAL.  /8/  WERE HE TO DISAGREE WITH THE PRESENT
DIVISION OF BUSINESS, THE JUDICIAL COUNCIL WOULD THEREUPON BE OBLIGED
TO "MAKE THE NECESSARY ORDERS."  28 U.S.C. 137.  HE CHOSE TO AVOID THAT
COURSE.  AS MR. JUSTICE HARLAN'S CONCURRING OPINION POINTS OUT, JUDGE
CHANDLER APPARENTLY DESIRES TO HAVE THE STATUS QUO ANTE RESTORED
WITHOUT THE BOTHER OF EITHER DISAGREEING WITH THE PRESENT ORDER OF THE
COUNCIL OR PERSUADING HIS FELLOW DISTRICT JUDGES TO ENTER ANOTHER.  TO
SAY THE LEAST THIS IS A REMARKABLE LITIGATION POSTURE FOR A LAWYER TO
ASSERT IN HIS OWN BEHALF. 

INSTEAD, JUDGE CHANDLER BROUGHT AN IMMEDIATE CHALLENGE IN THIS COURT
TO THE ORDER OF DECEMBER 13.  AS NOTED ABOVE, SUPRA, AT 79, WE DENIED
ANY RELIEF ON THE GROUND THAT THAT ORDER WAS "ENTIRELY INTERLOCUTORY IN
CHARACTER PENDING PROMPT FURTHER PROCEEDINGS . . . AND THAT AT SUCH
PROCEEDINGS JUDGE CHANDLER WILL BE PERMITTED TO APPEAR BEFORE THE
COUNCIL, WITH COUNSEL . . . ."  HE EXPRESSLY REFUSED TO ATTEND THE
HEARING CALLED BY THE COUNCIL FOR FEBRUARY 10, 1966, IN RESPONSE TO
THIS COURT'S ORDER; IN HIS BRIEF HE GIVES AS A REASON THAT HE WAS
UNWILLING TO "ATTEND A HEARING CONDUCTED BY A BODY WHOSE JURISDICTION
HE CHALLENGED . . . ."  /9/  AS A RESULT OF THAT REFUSAL WE HAVE NO
RECORD, NO PETITION FOR RELIEF ADDRESSED TO ANY AGENCY, COURT OR
TRIBUNAL OF ANY KIND OTHER THAN THIS COURT, AND A VERY KNOTTY
JURISDICTIONAL PROBLEM AS WELL.  /10/  PARENTHETICALLY IT MIGHT BE
NOTED THAT CHANDLER COULD HAVE APPEARED, IN PERSON OR BY COUNSEL, AND
CHALLENGED THE JURISDICTION OF THE COUNCIL WITHOUT IMPAIRING HIS CLAIM
THAT IT HAD NO POWER IN THE MATTER. 

AS NOTED ABOVE, AND AS CONCEDED BY THE DISSENTS, THE ORDER OF
DECEMBER 13, 1965,WAS TERMINATED BY THE ORDER OF FEBRUARY 4, 1966. 
JUDGE CHANDLER HAS TWICE EXPRESSED AGREEMENT WITH THE DISPOSITION OF
JUDICIAL BUSINESS EFFECTED BY THAT LATTER ORDER.  NOTHING IN THIS
RECORD SUGGESTS THAT, WERE HE TO EXPRESS DISAGREEMENT, RELIEF WOULD NOT
BE FORTHCOMING.  ON THE CONTRARY, ON JULY 12, 1967, THE COUNCIL
EXPRESSLY INVITED THE JUDGES OF CHANDLER'S DISTRICT TO AGREE AMONG
THEMSELVES UPON A NEW RULE OR ORDER FOR THE DIVISION OF BUSINESS, AND
ALL THE JUDGES WROTE BACK ADVISING THE COUNCIL THAT "THE CURRENT ORDER
FOR THE DIVISION OF BUSINESS IN THIS DISTRICT IS AGREEABLE UNDER THE
CIRCUMSTANCES." 

WHETHER THE COUNCIL'S ACTION WAS ADMINISTRATIVE ACTION NOT
REVIEWABLE IN THIS COURT, OR WHETHER IT IS REVIEWABLE HERE, PLAINLY
PETITIONER HAS NOT MADE A CASE FOR THE EXTRAORDINARY RELIEF OF MANDAMUS
OR PROHIBITION.  THE MOTION FOR LEAVE TO FILE THE PETITION IS THEREFORE

              DENIED. 

/1/  28 U.S.C. 137.  "DIVISION OF BUSINESS AMONG DISTRICT JUDGES. 

"THE BUSINESS OF A COURT HAVING MORE THAN ONE JUDGE SHALL BE DIVIDED
AMONG THE JUDGES AS PROVIDED BY THE RULES AND ORDERS OF THE COURT. 

"THE CHIEF JUDGE OF THE DISTRICT COURT SHALL BE RESPONSIBLE FOR THE
OBSERVANCE OF SUCH RULES AND ORDERS, AND SHALL DIVIDE THE BUSINESS AND
ASSIGN THE CASES SO FAR AS SUCH RULES AND ORDERS DO NOT OTHERWISE
PRESCRIBE. 

"IF THE DISTRICT JUDGES IN ANY DISTRICT ARE UNABLE TO AGREE UPON THE
ADOPTION OF RULES OR ORDERS FOR THAT PURPOSE THE JUDICIAL COUNCIL OF
THE CIRCUIT SHALL MAKE THE NECESSARY ORDERS." 

28 U.S.C. 332.  "JUDICIAL COUNCILS. 

"THE CHIEF JUDGE OF EACH CIRCUIT SHALL CALL, AT LEAST TWICE IN EACH
YEAR AND AT SUCH PLACES AS HE MAY DESIGNATE, A COUNCIL OF THE CIRCUIT
JUDGES FOR THE CIRCUIT, IN REGULAR ACTIVE SERVICE, AT WHICH HE SHALL
PRESIDE.  EACH CIRCUIT JUDGE, UNLESS EXCUSED BY THE CHIEF JUDGE, SHALL
ATTEND ALL SESSIONS OF THE COUNCIL. 

"THE COUNCIL SHALL BE KNOWN AS THE JUDICIAL COUNCIL OF THE CIRCUIT. 

"THE CHIEF JUDGE SHALL SUBMIT TO THE COUNCIL THE QUARTERLY REPORTS
OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS.  THE COUNCIL SHALL TAKE SUCH ACTION THEREON AS MAY BE
NECESSARY. 

"EACH JUDICIAL COUNCIL SHALL MAKE ALL NECESSARY ORDERS FOR THE
EFFECTIVE AND EXPEDITIOUS ADMINISTRATION OF THE BUSINESS OF THE COURTS
WITHIN ITS CIRCUIT.  THE DISTRICT JUDGES SHALL PROMPTLY CARRY INTO
EFFECT ALL ORDERS OF THE JUDICIAL COUNCIL." 

/2/  28 U.S.C. 1651.  "(A) THE SUPREME COURT AND ALL COURTS
ESTABLISHED BY ACT OF CONGRESS MAY ISSUE ALL WRITS NECESSARY OR
APPROPRIATE IN AID OF THEIR RESPECTIVE JURISDICTIONS AND AGREEABLE TO
THE USAGES AND PRINCIPLES OF LAW." 

/3/  CHIEF JUDGE ALFRED P. MURRAH TOOK NO PART IN THE PROCEEDINGS. 

/4/  THE CIVIL SUIT WAS AN ACTION BROUGHT BY ONE O'BRYAN CHARGING
PETITIONER WITH MALICIOUS PROSECUTION; THE COMPLAINT WAS DISMISSED BY
THE DISTRICT COURT, AFF'D EN BANC, 352 F.2D 987 (C.A. 10TH CIR. 1965),
CERT. DENIED, 384 U.S. 926 (1966).  THE CRIMINAL INDICTMENT CHARGING
CONSPIRACY TO CHEAT AND DEFRAUD THE STATE OF OKLAHOMA WAS QUASHED. 

IN BOTH CASES SEEKING DISQUALIFICATION OF PETITIONER, INCLUDING ONE
DECIDED AFTER THE SIGNING OF THE ORDER HERE CHALLENGED, WRITS OF
MANDAMUS ISSUED AGAINST PETITIONER.  SEE OCCIDENTAL PETROLEUM CORP. V.
CHANDLER, 303 F.2D 55 (C.A. 10TH CIR. 1962) (EN BANC), CERT. DENIED,
372 U.S. 915 (1963); AND TEXACO, INC. V. CHANDLER, 354 F.2D 655 (C.A.
10TH CIR. 1965) (EN BANC), CERT. DENIED, 383 U.S. 936 (1966). 

/5/  WE NOTE THAT NOTHING IN THE STATUTE OR ITS LEGISLATIVE HISTORY
INDICATES THAT CONGRESS INTENDED OR ANYONE CONSIDERED THE CIRCUIT
JUDICIAL COUNCILS TO BE COURTS OF APPEALS EN BANC.  MOREOVER, IT SHOULD
BE NOTED THAT PROPOSALS TO INCLUDE A DISTRICT JUDGE AS A MEMBER OF EACH
CIRCUIT JUDICIAL COUNCIL HAVE BEEN MADE; OBVIOUSLY, A COUNCIL SO
CONSTITUTED COULD HARDLY BE EQUATED TO AN EN BANC COURT. 

/6/  CONGRESS, BY ITS USE OF THE MANDATORY "SHALL" IN SEC. 332,
APPEARS TO HAVE INTENDED THAT DISTRICT JUDGES CARRY OUT ADMINISTRATIVE
DIRECTIVES OF THE JUDICIAL COUNCILS.  CONGRESS DID NOT SPELL OUT
PROCEDURES FOR GIVING COERCIEV EFFECT TO COUNCIL ORDERS, AND THE
LEGISLATIVE HISTORY SHEDS NO LIGHT ON WHETHER CONGRESS INTENDED THIS
STATUTE TO BE IMPLEMENTED BY REGULATIONS.  STANDING ALONE, SEC. 332 IS
NOT A MODEL OF CLARITY IN TERMS OF THE SCOPE OF THE JUDICIAL COUNCILS'
POWERS OR THE PROCEDURES TO GIVE EFFECT TO THE FINAL SENTENCE OF SEC.
332.  LEGISLATIVE CLARIFICATION OF ENFORCEMENT PROVISIONS OF THIS
STATUTE AND DEFINITION OF REVIEW OF COUNCIL ORDERS ARE CALLED FOR. 

/7/  WE FIND NOTHING IN THE LEGISLATIVE HISTORY TO SUGGEST THAT THE
JUDICIAL COUNCIL WAS INTENDED TO BE ANYTHING OTHER THAN AN
ADMINISTRATIVE BODY FUNCTIONING IN A VERY LIMITED AREA IN A NARROW
SENSE AS A "BOARD OF DIRECTORS" FOR THE CIRCUIT.  WHETHER THAT
CHARACTERIZATION IS VALID OR NOT, WE FIND NO INDICATION THAT CONGRESS
INTENDED TO OR DID VEST TRADITIONAL JUDICIAL POWERS IN THE COUNCILS. 
WE SEE NO CONSTITUTIONAL OBSTACLE PREVENTING CONGRESS FROM VESTING IN
THE CIRCUIT JUDICIAL COUNCILS, AS ADMINISTRATIVE BODIES, AUTHORITY TO
MAKE "ALL NECESSARY ORDERS FOR THE EFFECTIVE AND EXPEDITIOUS
ADMINISTRATION OF THE BUSINESS OF THE COURTS WITHIN (EACH) CIRCUIT." 

/8/  WE EXPRESS NO OPINION AS TO WHETHER HE COULD, FOR INSTANCE, HAVE
BROUGHT AN ACTION IN THE NATURE OF MANDAMUS TO COMPEL "AN OFFICER OR
EMPLOYEE OF THE UNITED STATES OR ANY AGENCY THEREOF TO PERFORM A DUTY
OWED . . ."  TO HIM, 28 U.S.C. 1361, ON THE THEORY THAT THIS WAS AGENCY
ACTION. 

/9/  PETITIONER'S BRIEF 7. 

/10/  ALTHOUGH IT IS NOT NECESSARY TO REACH OR DECIDE THE ISSUE, THE
ACTION OF THE JUDICIAL COUNCIL HERE COMPLAINED OF HAS FEW OF THE
CHARACTERISTICS OF TRADITIONAL JUDICIAL ACTION AND MUCH OF WHAT WE
THINK OF AS ADMINISTRATIVE ACTION.  NOR ARE WE CALLED UPON TO DECIDE
WHETHER ADMINISTRATIVE ACTION IS REVIEWABLE WHEN IT DEALS ONLY WITH THE
INTERNAL OPERATION OF A COURT.  SEE NN. 6, 7, SUPRA. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING IN THE DENIAL OF AN EXTRAORDINARY
WRIT. 

THIS OPINION SETS FORTH MY REASONS FOR CONCLUDING (1) THAT THE
SUBSISTING ORDER OF THE JUDICIAL COUNCIL OF FEBRUARY 4, 1966, RAISES
ISSUES THAT ARE ADEQUATELY PRESENTED TO THIS COURT AND SHOULD BE FACED
BY IT; (2) THAT THIS COURT DOES HAVE JURISDICTION TO PASS UPON THEM;
AND (3) THAT PROMULGATION AND EFFECTUATION OF THE ORDER OF FEBRUARY 4,
1966, ARE WITHIN THE COUNCIL'S AUTHORITY, AND HENCE THIS PETITION FOR
AN EXTRAORDINARY WRIT SHOULD BE DENIED.  THE NOVELTY AND UNUSUAL
CHARACTER OF THESE QUESTIONS REQUIRE, REGRETTABLY, AN OPINION OF SOME
LENGTH. 

       I     I AM PERPLEXED BY THE COURT'S EXPLANATION FOR ITS
FAILURE TO REACH THE ISSUES PRESENTED BY JUDGE CHANDLER'S PETITION.  AS
THE COURT STATES, THE ISSUES ARE WHETHER THIS COURT HAS JURISDICTION TO
REVIEW THE ORDERS OF THE JUDICIAL COUNCIL, AND, IF SO, WHETHER THOSE
ORDERS ARE INVALID BECAUSE BEYOND THE STATUTORY AND CONSTITUTIONAL
BOUNDS OF THE COUNCIL'S AUTHORITY.  THE COURT SAYS, CORRECTLY I
BELIEVE, THAT "THE THRESHOLD QUESTION IN THIS CASE IS WHETHER WE HAVE
JURISDICTION TO ENTERTAIN THE PETITION FOR EXTRAORDINARY RELIEF." 
ANTE, AT 86.  HOWEVER, THAT QUESTION IS NEVER DECIDED, AND THE COURT'S
OPINION CLOSES WITH THE STATEMENT THAT WHETHER OR NOT WE HAVE
JURISDICTION, "PLAINLY PETITIONER HAS NOT MADE A CASE FOR THE
EXTRAORDINARY RELIEF OF MANDAMUS OR PROHIBITION."  THE PREDICATE FOR
THIS CONCLUSION APPEARS TO BE THAT JUDGE CHANDLER HAS AN ADEQUATE
REMEDY AVAILABLE BEFORE THE COUNCIL, WHICH HE MUST INVOKE BEFORE
SEEKING RELIEF HERE.  AS AUTHORITY FOR THIS UNUSUAL DISPOSITION, THE
COURT CITES ONLY RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549 (1947), A
DECISION THAT I DO NOT CONSIDER LENDS ITSELF TO THE GLOSS THE COURT
TODAY PLACES UPON IT. 

IT IS CLEAR THAT, ALTHOUGH THE COUNCIL'S ORDER OF DECEMBER 13, 1965,
HAS BEEN REVOKED, THE SUBSEQUENT ORDER OF FEBRUARY 4, 1966, IS STILL
OUTSTANDING AND IS ATTACKED BY JUDGE CHANDLER AS BEYOND THE AUTHORITY
CONSTITUTIONALLY EXERCISABLE BY THE COUNCIL UNDER EITHER SEC. 137 OR
SEC. 332 OF THE JUDICIAL CODE.  JUDGE CHANDLER HAS TWICE CERTIFIED TO
THE COUNCIL HIS ACQUIESCENCE IN THE ALLOCATION OF BUSINESS MANDATED BY
THE FEBRUARY 4 ORDER; INDEED, HIS FIRST CERTIFICATION WAS RELIED UPON
BY THE THEN SOLICITOR GENERAL, APPEARING FOR THE COUNCIL IN FEBRUARY
1966, AS A BASIS FOR SUGGESTING THAT THE CASE WAS MOOT.  JUDGE CHANDLER
IMMEDIATELY RESPONDED THAT HE DID NOT IN ANY WAY CONCEDE THE COUNCIL'S
POWER TO ENTER THE FEBRUARY 4 ORDER, AND THAT HIS INDICATION OF
ACQUIESCENCE MADE TO THE COUNCIL DID NOT CONSTITUTE SUCH A CONCESSION. 
IN LIGHT OF THIS CONTINUED CHALLENGE TO THE ORDER, THE SOLICITOR
GENERAL IN MARCH 1966 AGREED "THAT THE CASE CAN NO LONGER BE DEEMED
MOOT." 

THE CASE THUS REACHED THE POSTURE IN WHICH IT NOW STANDS: JUDGE
CHANDLER UNEQUIVOCALLY ASSERTS THAT THE FEBRUARY 4 ORDER IS BEYOND THE
COUNCIL'S AUTHORITY.  IF HIS CONTENTION WERE SOUND, THE ONLY VALIDLY
OUTSTANDING DIRECTIVES FOR THE ALLOCATION OF BUSINESS IN THE DISTRICT
COURT WOULD BE THOSE "RULES AND ORDERS" OF THAT COURT, ISSUED UNDER
SEC. 137, THAT WERE IN EFFECT PRIOR TO DECEMBER 13, 1965.  THOUGH THE
TERMS OF THOSE RULES AND ORDERS ARE NOT BEFORE US, IT IS EVIDENT THAT
THEY PROVIDED FOR ASSIGNMENT TO JUDGE CHANDLER OF A PORTION OF THE
CASES CONTINUALLY FILED IN HIS COURT.  IN CHALLENGING THE VALIDITY OF
THE COUNCIL'S ATTEMPTS TO MODIFY THE PREVIOUS ALLOCATION OF BUSINESS,
AND IN REQUESTING RESTORATION OF THE STATUS QUO ANTE, JUDGE CHANDLER
SEEKS TO ACHIEVE A MARKED DEPARTURE FROM THE MANNER IN WHICH BUSINESS
IS CURRENTLY ALLOCATED. 

JUDGE CHANDLER CLAIMS A RIGHT TO ACCOMPLISH THIS RESULT WITHOUT THE
NECESSITY OF MOBILIZING ALL THE JUDGES OF HIS DISTRICT TO CHANGE THE
ASSIGNMENT OF BUSINESS BY UNANIMOUS ACTION, AS THE FEBRUARY 4 ORDER
ALLOWS THEM TO DO.  FURTHER, SINCE HE DENIES THE COUNCIL'S AUTHORITY TO
DEPRIVE HIM OF ALL NEW BUSINESS, HE OF COURSE DENIES THAT HE SHOULD BE
REQUIRED TO REQUEST THE COUNCIL TO RENEGE AS A CONDITION OF OBTAINING
REVIEW OF ITS OUTSTANDING ORDER.  HE CLAIMS THAT IT IS ILLEGAL FOR THE
COUNCIL TO DEPRIVE HIM OF NEW CASES, AND EQUALLY SO FOR THE COUNCIL TO
CONDITION HIS ACCESS TO NEW CASES UPON HIS MAKING A REQUEST TO IT THAT
IS TANTAMOUNT TO A FORM OF A CERTIFICATION OF DISAGREEMENT UNDER SEC.
137. 

ALTHOUGH THE COURT STATES THAT IT DOES NOT DECIDE THE MERITS OF THIS
CLAIM, SEE ANTE, AT 87, I CAN READ ITS OPINION ONLY AS A DETERMINATION
THAT THE CLAIM IS INSUBSTANTIAL.  THE COURT STATES THAT IT IS A
"REMARKABLE LITIGATION POSTURE" FOR JUDGE CHANDLER TO ARGUE THAT THE
COUNCIL HAS NO AUTHORITY TO FORCE HIM TO CHOOSE BETWEEN REMAINING
WITHOUT NEW BUSINESS, SEEKING FURTHER ACTION BY THE COUNCIL, OR SEEKING
UNANIMOUS ACTION BY THE DISTRICT JUDGES.  THE COURT DENIES RELIEF
BECAUSE "(NOTHING IN THIS RECORD SUGGESTS THAT, WERE HE TO EXPRESS
DISAGREEMENT, RELIEF WOULD NOT BE FORTHCOMING," A DECISION THAT CAN
ONLY BE PREMISED ON A HOLDING THAT HE IS DENIED NO RIGHTS BY BEING
RELEGATED TO THAT COURSE OF ACTION.  ANTE, AT 87, 88-89.  BUT THIS IS
THE CONTRARY OF WHAT JUDGE CHANDLER CONTENDS, AND A CONCLUSION WITH
WHICH TWO MEMBERS OF THIS COURT SHARPLY DIFFER.  AS EXPLAINED IN PART
III, INFRA, I TOO BELIEVE THAT JUDGE CHANDLER NOW LACKS MERITORIOUS
GROUND FOR COMPLAINT.  HOWEVER, I DO NOT BELIEVE THAT THE COURT CAN
PROPERLY MAKE THAT HOLDING WITHOUT FIRST DETERMINING ITS JURISDICTION
TO CONSIDER THE QUESTION. 

RESCUE ARMY, SUPRA, PROVIDES NO AUTHORITY FOR SUCH A PROCEDURE. 
THAT DECISION REPRESENTS ONE BRANCH OF THE LONG-SETTLED DOCTRINE THAT
THIS COURT WILL NOT DETERMINE CONSTITUTIONAL QUESTIONS UNNECESSARILY OR
IN A CASE THAT DOES NOT PRESENT THEM WITH SUFFICIENT CLARITY TO MAKE
POSSIBLE THE CIRCUMSPECT CONSIDERATION THEY REQUIRE.  SEE GENERALLY
ID., AT 568-585; ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288,
346 (1936) (BRANDEIS, J., CONCURRING).  BECAUSE THE CONSTITUTIONAL
ISSUES IN RESCUE ARMY WERE PRESENTED IN A HIGHLY ABSTRACT AND
SPECULATIVE FORM, AND WERE CLOUDED BY FACTORS NOT PRESENT IN THIS CASE,
/1/  THE COURT DISMISSED THE APPEAL, DECLINING TO ADJUDICATE THEM.  IT
CONCLUDED THAT AN APPELLANT THERE, FACED WITH STATE CRIMINAL CHARGES,
WOULD HAVE TO UNDERGO A TRIAL ON THE CHARGES BEFORE OBTAINING REVIEW IN
THIS COURT OF HIS CONSTITUTIONAL CLAIMS.  AS IN THIS CASE, THE COURT'S
ACTION HAD THE EFFECT OF REJECTING THE APPELLANT'S CLAIM OF A RIGHT TO
OBTAIN RELIEF WITHOUT FURTHER PROCEEDINGS IN A LOWER TRIBUNAL, SEE 331
U.S.,AT 584.  HOWEVER, THE COURT MADE THAT DISPOSITION ONLY AFTER
CAREFULLY DETERMINING THAT IT HAD JURISDICTION IN THE CASE.  SEE ID.,
AT 565-568. 

THE COURT DOES SUGGEST, BY FOOTNOTE, AN ALTERNATIVE BASIS FOR ITS
REFUSAL TO CONSIDER JUDGE CHANDLER'S PETITION.  ANTE, AT 87 N. 8.  IF
AN ADEQUATE MEANS OF REVIEW OF COUNCIL ORDERS WERE AVAILABLE IN THE
FEDERAL DISTRICT COURT UNDER 28 U.S.C. 1361, THAT MIGHT JUSTIFY THIS
COURT'S STAYING ITS HAND UNTIL SUCH REVIEW HAD BEEN SOUGHT.  HOWEVER,
AS POINTED OUT BY THE UNITED STATES AS AMICUS CURIAE, IT SEEMS WHOLLY
UNREALISTIC TO SUGGEST THAT AN APPROPRIATE REMEDY COULD BE OBTAINED
FROM A DISTRICT COURT.  THE DISTRICT COURT MANDAMUS STATUTE, SEC. 1361,
EXTENDS TO "OFFICERS,"  "EMPLOYEES," AND "AGENCIES" OF THE UNITED
STATES; THERE IS NO INDICATION THAT IT EMPOWERS THE DISTRICT COURTS TO
ISSUE MANDAMUS TO OTHER JUDICIAL TRIBUNALS.  THUS, AS THE JUDICIAL
COUNCIL SEEMS TO CONCEDE, THE AVAILABILITY OF A REMEDY UNDER THAT
STATUTE HINGES ON A DETERMINATION, WHICH THE COURT AVOIDS MAKING,
WHETHER THE COUNCIL'S ACTIONS UNDER REVIEW WERE JUDICIAL OR NOT.  BRIEF
FOR RESPONDENT 19.  BEYOND THAT, DIRECT REVIEW BY A DISTRICT JUDGE OF
THE ACTIONS OF CIRCUIT JUDGES WOULD PRESENT SERIOUS INCONGRUITIES AND
PRACTICAL PROBLEMS CERTAINLY NOT CONTEMPLATED WHEN SEC. 1361 WAS
ENACTED.  IT IS UNREALISTIC FOR THE COURT TO IMPLY THAT SEC. 1361
PRESENTS AN APPROPRIATE AVENUE OF RELIEF JUSTIFYING THIS COURT'S
REFUSAL TO EXERCISE ITS JURISDICTION. 

I DO NOT DISAGREE WITH THE COURT THAT THE ISSUES PRESENTED BY JUDGE
CHANDLER'S PETITION ARE TROUBLESOME ONES THAT WE MIGHT WISH TO AVOID
DECIDING.  HOWEVER, I CAN PERCEIVE NO REASONED JUSTIFICATION FOR THE
COURT'S REFUSAL TO DECIDE THEM.  CHIEF JUSTICE MARSHALL LONG AGO
ENUNCIATED THE PRINCIPLE THAT SHOULD GOVERN US HERE: 

     "IT IS MOST TRUE THAT THIS COURT WILL NOT TAKE JURISDICTION IF

  IT SHOULD NOT:  BUT IT IS EQUALLY TRUE, THAT IT MUST TAKE

  JURISDICTION IF IT SHOULD . . . . WITH WHATEVER DOUBTS, WITH

  WHATEVER DIFFICULTIES, A CASE MAY BE ATTENDED, WE MUST DECIDE IT,

  IF IT BE BROUGHT BEFORE US.  WE HAVE NO MORE RIGHT TO DECLINE THE

  EXERCISE OF JURISDICTION WHICH IS GIVEN, THAN TO USURP THAT WHICH

 IS NOT GIVEN."  COHENS V. VIRGINIA, 6 WHEAT.  264, 404 (1821). 

THAT PRINCIPLE HAS NOT BEEN ABROGATED BY THE RESCUE ARMY DECISION,
WHICH MERELY UNDERTOOK TO DEFINE THE LIMITS OF OUR ABILITY TO
ADJUDICATE CONSTITUTIONAL ISSUES IN CASES THAT ADEQUATELY PRESENT
THEM.  I FIND NO LICENSE IN THAT DECISION FOR THE ACTION TAKEN BY THE
COURT TODAY. 

        II 

BEFORE JUDGE CHANDLER'S ATTACK ON THE ORDERS OF THE JUDICIAL COUNCIL
CAN BE CONSIDERED, IT MUST BE DETERMINED WHETHER THE COURT POSSESSES
JURISDICTION TO ENTERTAIN HIS PETITION FOR A WRIT OF MANDAMUS OR
PROHIBITION.  WHILE I AGREE WITH MY BROTHERS BLACK AND DOUGLAS THAT THE
COURT DOES HAVE JURISDICTION, I THINK THAT THE QUESTION WARRANTS FULLER
TREATMENT THAN THEY HAVE GIVEN IT.

     A. CONSTITUTIONAL JURISDICTION 

ANY DISCUSSION OF THE SCOPE OF THIS COURT'S AUTHORITY UNDER THE
CONSTITUTION MUST TAKE AS ITS POINT OF DEPARTURE MARBURY V. MADISON, 1
CRANCH 137 (1803), WHERE THE COURT HELD THAT EXCEPT IN THOSE INSTANCES
SPECIFICALLY ENUMERATED IN ARTICLE III OF THE CONSTITUTION, /2/ THIS
COURT MAY EXERCISE ONLY APPELLATE-- NOT ORIGINAL-- JURISDICTION. 
BECAUSE THIS SUIT IS NOT COGNIZABLE AS AN ORIGINAL CAUSE, THE QUESTION
INITIALLY TO BE FACED IS WHETHER IT IS WITHIN OUR APPELLATE
JURISDICTION. 

THE COURT WAS ASKED IN MARBURY TO ISSUE A WRIT OF MANDAMUS TO COMPEL
THE SECRETARY OF STATE TO DELIVER TO AN APPOINTED JUSTICE OF THE PEACE
HIS PREVIOUSLY SIGNED COMMISSION.  AFTER NOTING THAT THE SUIT DID NOT
FALL WITHIN ANY OF THE ENUMERATED HEADS OF ORIGINAL JURISDICTION, THE
COURT, THROUGH CHIEF JUSTICE MARSHALL, CONCLUDED:  "TO ENABLE THIS
COURT, THEN, TO ISSUE A MANDAMUS, IT MUST BE SHOWN TO BE AN EXERCISE OF
APPELLATE JURISDICTION, OR TO BE NECESSARY TO ENABLE (THE COURT) TO
EXERCISE APPELLATE JURISDICTION."  ID., AT 175.  THE COURT HELD THAT
ISSUANCE OF MANDAMUS TO A NONJUDICIAL FEDERAL OFFICER WOULD NOT BE AN
EXERCISE OF APPELLATE, BUT OF ORIGINAL, JURISDICTION.  THUS THE STATUTE
THAT PURPORTED TO AUTHORIZE SUCH ACTION BY THE SUPREME COURT WAS
INEFFECTIVE.  SEE 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES 1761 (5TH ED. 1891). 

THE CHIEF JUSTICE STATED, AS THE "ESSENTIAL CRITERION OF APPELLATE
JURISDICTION, THAT IT REVISES AND CORRECTS THE PROCEEDINGS IN A CAUSE
ALREADY INSTITUTED, AND DOES NOT CREATE THAT CAUSE."  1 CRANCH, AT
175.  BEYOND CAVIL, THE ISSUANCE OF A WRIT OF MANDAMUS TO AN INFERIOR
COURT IS AN EXERCISE OF APPELLATE JURISDICTION.  IN RE WINN, 213 U.S.
458, 465-466 (1909).  IF THE CHALLENGED ORDERS OF THE JUDICIAL COUNCIL
IN THIS INSTANCE WERE "AN EXERCISE OF JUDICIAL POWER," THIS COURT IS
CONSTITUTIONALLY VESTED WITH JURISDICTION TO REVIEW THEM, ABSENT ANY
STATUTE CURTAILING SUCH REVIEW.  WILLIAMS V. UNITED STATES, 289 U.S.
553, 566 (1933); OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716,
723 (1929); IN RE SANBORN, 148 U.S. 222, 224 (1893).  ON THE OTHER
HAND, IF THEY WERE NOT, MARBURY ALONE IS SUFFICIENT AUTHORITY TO
SUPPORT A CONCLUSION THAT THIS SUIT IS BEYOND THIS COURT'S POWER UNDER
ARTICLE III.  AN ANALYSIS OF THE NATURE OF THE COUNCIL'S ORDERS MUST
BEGIN WITH CONSIDERATION OF THE STATUTE BY WHICH THE COUNCIL WAS
CREATED. 

THE JUDICIAL COUNCILS OF THE CIRCUITS WERE BROUGHT INTO BEING BY THE
ACT OF AUGUST 7, 1939,WHICH WAS TERMED "AN ACT TO PROVIDE FOR THE
ADMINISTRATION OF THE UNITED STATES COURTS, AND FOR OTHER PURPOSES." 
53 STAT. 1223.  THE MAJOR PURPOSES OF THE ACT WERE TO FREE THE FEDERAL
COURTS FROM THEIR PREVIOUS RELIANCE ON THE JUSTICE DEPARTMENT IN
BUDGETARY MATTERS, AND "TO FURNISH TO THE FEDERAL COURTS THE
ADMINISTRATIVE MACHINERY FOR SELF-IMPROVEMENT, THROUGH WHICH THOSE
COURTS WILL BE ABLE TO SCRUTINIZE THEIR OWN WORK AND DEVELOP EFFICIENCY
AND PROMPTNESS IN THEIR ADMINISTRATION OF JUSTICE."  H.R. REP. NO. 702,
76TH CONG., 1ST SESS., 2 (1939).  TO THIS END THE ACT ESTABLISHED THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, HEADED BY A
DIRECTOR, TO COMPILE STATISTICAL DATA ON THE OPERATION OF THE COURTS
AND TO PROVIDE SUPPORT SERVICES OF A LOGISTICAL NATURE.  /3/  THE ACT
FURTHER ESTABLISHED TWO NEW ENTITIES IN EACH OF THE JUDICIAL CIRCUITS:
THE JUDICIAL COUNCIL, COMPOSED OF ALL THE ACTIVE CIRCUIT JUDGES, AND
THE JUDICIAL CONFERENCE, COMPOSED OF CIRCUIT AND DISTRICT JUDGES ALONG
WITH PARTICIPATING MEMBERS OF THE BAR.  THE COUNCIL, IN REGULAR
MEETINGS, WAS TO CONSIDER THE REPORTS OF THE DIRECTOR AND TAKE "SUCH
ACTION . . . THEREON" AS MIGHT BE NECESSARY; /4/  THE CONFERENCE WAS TO
MEET ANNUALLY "FOR THE PURPOSE OF CONSIDERING THE STATE OF THE BUSINESS
OF THE COURTS AND ADVISING WAYS AND MEANS OF IMPROVING THE
ADMINISTRATION OF JUSTICE WITHIN THE CIRCUIT."  /5/ 

AS THESE STATUTORY PROVISIONS INDICATE, CONGRESS ENVISIONED QUITE
DIFFERENT FUNCTIONS FOR THE THREE NEW BODIES.  THE ROLE OF THE
ADMINISTRATIVE OFFICE, AND ITS DIRECTOR, WAS TO BE "ADMINISTRATIVE" IN
THE NARROWEST SENSE OF THAT TERM.  THE DIRECTOR WAS ENTRUSTED WITH NO
AUTHORITY OVER THE PERFORMANCE OF JUDICIAL BUSINESS-- HIS ROLE WITH
RESPECT TO SUCH BUSINESS WAS, AND IS, MERELY TO COLLECT INFORMATION FOR
USE BY THE COURTS THEMSELVES.  CHIEF JUSTICE GRONER OF THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA, WHO WAS CHAIRMAN OF THE COMMITTEE
OF CIRCUIT JUDGES THAT PARTICIPATED IN DRAFTING THE BILL, STRESSED TO
THE SENATE COMMITTEE ON THE JUDICIARY THAT THE BILL WOULD GIVE THE
DIRECTOR NO "SUPERVISION OR CONTROL OVER THE EXERCISE OF PURELY
JUDICIAL DUTIES," BECAUSE TO GRANT SUCH POWER TO AN ADMINISTRATIVE
OFFICER "WOULD BE TO DESTROY THE VERY FUNDAMENTALS OF OUR THEORY OF
GOVERNMENT.  THE ADMINISTRATIVE OFFICER (THE DIRECTOR) PROPOSED IN THIS
BILL IS PURELY AN ADMINISTRATIVE OFFICER."  HEARINGS ON S. 188 BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY, 76TH CONG., 1ST
SESS., 12 (1939) (RESPONSE TO QUESTION BY SENATOR HATCH).  SEE ALSO
ID., AT 36 (STATEMENT OF A. HOLTZOFF).     THE JUDICIAL CONFERENCE FOR
EACH CIRCUIT WAS GIVEN A COMPLEMENTARY ROLE, AGAIN DIVORCED FROM DIRECT
INVOLVEMENT IN THE DISPOSITION BY THE COURTS OF THEIR JUDICIAL
BUSINESS.  PATTERNED IN LARGE PART AFTER THE VOLUNTARY CONFERENCES THAT
HAD BEEN HELD FOR YEARS IN THE FOURTH CIRCUIT, THE CONFERENCE WAS
INTENDED TO PROVIDE AN OPPORTUNITY FOR FRIENDLY INTERCHANGE AMONG
JUDGES AND BETWEEN BENCH AND BAR, OUT OF WHICH MIGHT GROW INCREASED
UNDERSTANDING OF PROBLEMS OF JUDICIAL ADMINISTRATION AND ENHANCED
COOPERATION TOWARD THEIR SOLUTION.  ITS FUNCTION, AS INDICATED BY THE
STATUTORY LANGUAGE QUOTED ABOVE, WAS TO BE "PURELY ADVISORY."  SEE
HEARINGS ON H.R. 5999 BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY, 76TH
CONG., 1ST SESS., 11-12, 17, 23-24 (1939). 

THE JUDICIAL COUNCIL, ON THE OTHER HAND, WAS DESIGNED AS AN ACTUAL
PARTICIPANT IN THE MANAGEMENT OF THE JUDICIAL WORK OF THE CIRCUIT.  THE
ACT PROVIDED THAT, "(TO THE END THAT THE WORK OF THE DISTRICT COURTS
SHALL BE EFFECTIVELY AND EXPEDITIOUSLY TRANSACTED," THE CIRCUIT JUDGES
OF EACH CIRCUIT WERE TO MEET AS A COUNCIL AT LEAST TWICE A YEAR.  AFTER
CONSIDERATION OF THE STATISTICAL REPORTS SUBMITTED BY THE
ADMINISTRATIVE OFFICE, "SUCH ACTION SHALL BE TAKEN THEREON BY THE
COUNCIL AS MAY BE NECESSARY.  IT SHALL BE THE DUTY OF THE DISTRICT
JUDGES PROMPTLY TO CARRY OUT THE DIRECTIONS OF THE COUNCIL AS TO THE
ADMINISTRATION OF THE BUSINESS OF THEIR RESPECTIVE COURTS."  /6/  THIS
PROVISION EXISTS TODAY AS SEC. 332 WITHOUT RELEVANT CHANGE, EXCEPT THAT
THE 1948 REVISION OF THE JUDICIAL CODE ADDED A DECLARATION THAT "(EACH
JUDICIAL COUNCIL SHALL MAKE ALL NECESSARY ORDERS FOR THE EFFECTIVE AND
EXPEDITIOUS ADMINISTRATION OF THE BUSINESS OF THE COURTS WITHIN ITS
CIRCUIT," AND CORRESPONDINGLY DIRECTED THE DISTRICT JUDGES TO CARRY OUT
ALL SUCH "ORDERS."  THE REVISER'S NOTE EXPLAINED THIS AMENDMENT AS
MERELY A CHANGE IN "PHRASEOLOGY," EMBODYING IN NEW WORDS THE ORIGINAL
UNDERSTANDING OF THE POWERS OF THE COUNSILS.  H.R. REP. NO. 308, 80TH
CONG., 1ST SESS., A46 (1947). 

THE MOST HELPFUL GUIDE IN DETERMINING THE ROLE ENVISAGED FOR THE
JUDICIAL COUNCILS IS THE TESTIMONY OF CHIEF JUSTICE GRONER, WHO
SHOULDERED MOST OF THE TASK OF EXPLAINING THE PURPOSES OF THE BILL TO
THE COMMITTEES OF BOTH HOUSES OF CONGRESS.  HE EXPLAINED THAT UNDER
EXISTING LAW THE CIRCUIT JUDGES HAD "NO AUTHORITY TO REQUIRE A DISTRICT
JUDGE TO SPEED UP HIS WORK OR TO ADMONISH HIM THAT HE IS NOT BEARING
THE FULL AND FAIR BURDEN THAT HE IS EXPECTED TO BEAR, OR TO TAKE ACTION
AS TO ANY OTHER MATTER WHICH IS THE SUBJECT OF CRITICISM, . . . FOR
WHICH HE MAY BE RESPONSIBLE."  HEARINGS ON S. 188, SUPRA, AT 11.  IN
CONTRAST, UNDER THE PROPOSED BILL THE ADMINISTRATIVE OFFICE WOULD
"OBSERVE AND SEE THAT WHATEVER IS WRONG IN THE ADMINISTRATION OF
JUSTICE, FROM WHATEVER SOURCES IT MAY ARISE, IS BROUGHT TO THE
ATTENTION OF THE JUDICIAL COUNCIL THAT IT MAY BE CORRECTED, BY THE
COURTS THEMSELVES."  ID., AT 12-13. 

AS EXAMPLES OF THE KINDS OF ACTION A JUDICIAL COUNCIL MIGHT BE
EXPECTED TO TAKE UNDER THE PROPOSED BILL, CHIEF JUSTICE GRONER
SUGGESTED THAT IF THE STATISTICS SHOWED A PARTICULAR DISTRICT COURT TO
BE FALLING BEHIND IN ITS WORK, THE COUNCIL WOULD "SEE TO IT, EITHER
THAT THE PARTICULAR JUDGE WHO IS BEHIND IN HIS WORK CATCHES UP WITH HIS
WORK, OR THAT ASSISTANCE IS GIVEN TO HIM WHEREBY THE WORK MAY BE MADE
CURRENT."  ID., AT 11.  IF IT APPEARED THAT A PARTICULAR JUDGE "HAD
BEEN SICK FOR 4 OF 5 MONTHS AND HAD BEEN UNABLE TO HOLD ANY COURT, OR
HAD BEEN UNABLE,BY REASON OF ONE THING OR ANOTHER, TO TRANSACT ANY
BUSINESS, . . . IMMEDIATE ACTION COULD BE TAKEN TO CORRECT THAT
SITUATION."  HEARINGS ON H.R. 59999, SUPRA, AT 11.  ASKED BY
REPRESENTATIVE WALTER CHANDLER "WHAT POWER IS GIVEN THERE TO REQUIRE A
JUDGE TO DECIDE A CASE THAT HE HAS HAD UNDER ADVISEMENT FOR MONTHS AND
YEARS," HE RESPONDED THAT THE COUNCIL, AFTER CONSIDERING THE MATTER,
COULD ISSUE DIRECTIONS THAT WOULD BE "FINAL."  ID., AT 13.  ANY "LAZY
JUDGE'S WORK WOULD BE REPORTED TO THE COUNCIL, (WHICH) WOULD TAKE THE
CORRECT ACTION."  ID., AT 27.  /7/ 

JUDGE PARKER STATED HIS VIEW THAT 

"WHAT WE HAVE DONE IS THIS, UP TO THIS POINT:  WE HAVE GIVEN TO THE
CIRCUIT COURT OF APPEALS SUPERVISORY POWER OVER THE DECISIONS OF THE
DISTRICT JUDGES, BUT WE HAVE GIVEN THEM NO POWER WHATEVER OVER
ADMINISTRATION BY THE DISTRICT JUDGES. 

     "IF JUDGE JONES DECIDES A CASE CONTRARY TO THE VIEWS OF THE

  MAJORITY OF THE CIRCUIT COURT OF APPEALS, WE CAN TELL HIM SO AND

  REVERSE HIM.  BUT IF HE HOLDS A CASE UNDER ADVISEMENT FOR 2

  YEARS, INSTEAD OF DECIDING IT PROMPTLY, THERE IS NOTHING THAT WE

  ARE AUTHORIZED BY THE LAW TO DO ABOUT IT IN THE ABSENCE OF AN

  APPLICATION FOR MANDAMUS.  NOW, THIS (BILL) AUTHORIZES US TO DO

  SOMETHING ABOUT IT; AND I AGREE WITH YOU THAT SOMETHING OUGHT TO

  BE DONE ABOUT IT."  ID., AT 21. 

IN PLACE OF THE INADEQUATE EXTRAORDINARY REMEDY OF MANDAMUS, WHICH
COULD CORRECT ONLY THE EXTREME ABUSE IN A PARTICULAR CASE, THE CIRCUIT
JUDGES, SITTING AS THE JUDICIAL COUNCIL, WERE GIVEN THE AUTHORITY FOR
CONTINUOUS SUPERVISION OF THE FLOW OF WORK THROUGH THE DISTRICT
COURTS. 

IN SHORT, THE PROPOSED JUDICIAL COUNCIL WAS INTENDED TO FILL THE
HIATUS OF AUTHORITY THAT EXISTED UNDER THE THEN-CURRENT ARRANGEMENTS,
WHEREBY THE ATTORNEY GENERAL COLLECTED DATA ABOUT THE OPERATION OF THE
COURTS BUT HAD NO POWER TO TAKE CORRECTIVE ACTION, "EXCEPT, PERHAPS, AS
A RESULT OF THE MORAL SUASION OF HIS OFFICE."  THE PROPOSED BILL WOULD
ALLOW COMPILATION OF MORE COMPLETE INFORMATION, AND WOULD "PROVIDE A
METHOD, A LEGITIMATE, VALID, LEGAL METHOD, BY WHICH, IF NECESSARY, AND
WHEN NECESSARY, THE COURTS MAY CLEAN THEIR OWN HOUSE"; IT WOULD "GIVE A
BODY, IN WHICH THE AUTHORITY IS FIRMLY LODGED, THE POWER TO DO THAT AND
TO DO IT EXPEDITIOUSLY."  ID., AT 8.  SEE GENERALLY REPORT ON THE
POWERS AND RESPONSIBILITIES OF THE JUDICIAL COUNCILS, H.R. DOC. NO.
201, 87TH CONG., 1ST SESS. (1961); FISH, THE CIRCUIT COUNCILS:  RUSTY
HINGES OF FEDERAL JUDICIAL ADMINISTRATION, 37 U.CHI.L.REV.  203
(1970). 

THIS LEGISLATIVE HISTORY LENDS SUPPORT TO A CONCLUSION THAT, AT
LEAST IN THE ISSUANCE OF ORDERS TO DISTRICT JUDGES TO REGULATE THE
EXERCISE OF THEIR OFFICIAL DUTIES, THE JUDICIAL COUNCIL ACTS AS A
JUDICIAL TRIBUNAL FOR PURPOSES OF THIS COURT'S APPELLATE JURISDICTION
UNDER ARTICLE III.  IT SEEMS CLEAR THAT THE SPONSORS OF THE BILL
CONSIDERED THE POWER TO GIVE SUCH ORDERS SOMETHING THAT COULD NOT BE
ENTRUSTED TO ANY PURELY "ADMINISTRATIVE" AGENCY-- NOT EVEN TO THE
ADMINISTRATIVE OFFICE, WHICH WAS TO BE AN ARM OF THE JUDICIAL BRANCH OF
GOVERNMENT AND UNDER THE DIRECT CONTROL OF THE SUPREME COURT AND THE
JUDICIAL CONFERENCE OF THE UNITED STATES.  CHIEF JUSTICE GRONER, IN THE
PASSAGE QUOTED ABOVE, STATED THAT TO GIVE SUCH POWER TO AN
ADMINISTRATIVE AGENCY "WOULD BE TO DESTROY THE VERY FUNDAMENTALS OF OUR
THEORY OF GOVERNMENT."  INSTEAD, ANY PROBLEMS UNEARTHED BY THE
DIRECTOR'S STUDIES WERE TO BE "CORRECTED, BY THE COURTS THEMSELVES." 
HEARINGS ON S. 188, SUPRA, AT 12-13.  SEE ALSO HEARINGS ON H.R. 5999,
SUPRA, AT 8. 

THERE WERE FURTHER REFERENCES THROUGHOUT THE HEARINGS AND COMMITTEE
REPORTS TO THE FACT THAT THE CORRECTIVE POWER WOULD BE EXERCISED BY THE
COURTS THEMSELVES.  E.G., HEARINGS ON S. 188, SUPRA, AT 16 (STATEMENT
OF A. VANDERBILT); ID., AT 31-32 (STATEMENT OF HON. HAROLD M.
STEPHENS); ID., AT 36 (STATEMENT OF A. HOLTZOFF); H.R. REP. NO. 702,
76TH CONG., 1ST SESS., 4 (1939).  THE HOUSE REPORT QUOTED WITH APPROVAL
AN ENDORSEMENT OF THE BILL BY THE AMERICAN JUDICATURE SOCIETY, STATING
THAT "THERE IS NO WAY TO FORTIFY JUDICIAL INDEPENDENCE EQUAL TO THAT OF
ENABLING THE JUDGES TO PERFORM THEIR WORK UNDER JUDICIAL SUPERVISION." 
IBID.  THESE STATEMENTS INDICATE THAT THE POWER TO DIRECT TRIAL JUDGES
IN THE EXECUTION OF THEIR DECISION-MAKING DUTIES WAS REGARDED AS A
JUDICIAL POWER, ONE TO BE ENTRUSTED ONLY TO A JUDICIAL BODY. 

IN THIS REGARD IT IS IMPORTANT TO NOTE THAT AN EARLIER DRAFT OF THE
1939 ACT WOULD HAVE GIVEN RESPONSIBILITY FOR SUPERVISING THE LOWER
COURTS TO THE SUPREME COURT AND THE CHIEF JUSTICE OF THE UNITED
STATES.  THE IDEA OF DEVOLVING THE AUTHORITY TO COUNCILS AT THE CIRCUIT
LEVEL WAS SUGGESTED BY CHIEF JUSTICE HUGHES, WHO BELIEVED THAT THE
SUPERVISION COULD BE MADE MOST EFFECTIVE BY "CONCENTRATION OF
RESPONSIBILITY IN THE VARIOUS CIRCUITS . . . WITH POWER AND AUTHORITY
TO MAKE THE SUPERVISION ALL THAT IS NECESSARY TO INDUCE COMPETENCE IN
THE WORK OF ALL OF THE JUDGES OF THE VARIOUS DISTRICTS WITHIN THE
CIRCUIT."  H.R. DOC. NO. 201, SUPRA, AT 3.  IT IS EQUALLY NOTABLE THAT,
WHILE THE DRAFTSMEN DID CONSIDER GIVING DISTRICT JUDGES SOME
REPRESENTATION ON THE COUNCILS, SEE ID., AT 4-5, THERE WAS APPARENTLY
NO THOUGHT GIVEN TO INCLUDING NONJUDICIAL OFFICERS.  THESE INDICATIONS
LEAVE NO DOUBT THAT THE COUNCILS' ARCHITECTS REGARDED THE AUTHORITY
GRANTED THE COUNCILS AS CLOSELY BOUND UP WITH THE PROCESS OF JUDGING
ITSELF.  /8/ 

BECAUSE THE LEGISLATIVE HISTORY SHOWS CONGRESS INTENDED THE COUNCILS
TO ACT AS JUDICIAL BODIES IN SUPERVISING THE DISTRICT JUDGES, THERE IS
NO NEED TO DECIDE WHETHER PLACEMENT OF THIS AUTHORITY IN A NONJUDICIAL
BODY WOULD VIOLATE THE CONSTITUTIONAL SEPARATION OF POWERS, AS CHIEF
JUSTICE GRONER SEEMS TO HAVE BELIEVED.  IT IS SUFFICIENT TO CONCLUDE
FROM REASON AND ANALOGY THAT THIS RESPONSIBILITY IS OF SUCH A NATURE
THAT IT MAY BE PLACED IN THE HANDS OF ARTICLE III JUDGES TO BE
EXERCISED AS A JUDICIAL FUNCTION. 

AN ORDER BY THE COUNCIL TO A DISTRICT JUDGE, DIRECTING HIS HANDLING
OF ONE OR MANY CASES IN HIS COURT, IS AN INTEGRAL STEP IN THE PROGRESS
OF THOSE CASES FROM INITIAL FILING TO FINAL ADJUDICATION.  LIKE THE
DISTRICT JUDGE'S OWN ORDERS SETTING A TIME FOR DISCOVERY OR TRIAL, OR
TRANSFERRING A CASE TO ANOTHER DISTRICT PURSUANT TO 28 U.S.C. 1404(A),
SUCH AN ORDER, EVEN THOUGH CONCERNED WITH A MATTER OF "JUDICIAL
ADMINISTRATION," IS PART OF THE OFFICIAL CONDUCT OF JUDICIAL BUSINESS. 
UNLIKE THE MORE COMMON ORDERS OF THE DISTRICT COURT, THE COUNCIL'S
ORDERS INVOLVE SUPERVISION OF A SUBORDINATE JUDICIAL OFFICER.  BUT IN
THIS REGARD THEY ARE NOT UNLIKE THE EXTRAORDINARY WRIT OF MANDAMUS,
WHICH JUDGE PARKER THOUGHT THE COUNCIL'S ORDERS WOULD SUPPLEMENT, OR
THE ORDERS ENTERED BY COURTS IN PROCEEDINGS FOR DISBARMENT OF AN
ATTORNEY.  IN SHORT, THE FUNCTION OF THE COUNCIL IN ORDERING THE
DISTRICT JUDGES TO TAKE CERTAIN MEASURES RELATED TO THE CASES BEFORE
THEM IS, AS THE LEGISLATIVE HISTORY INDICATES CONGRESS UNDERSTOOD,
JUDICIAL IN NATURE.  /9/ 

TO SUPPORT A CONTRARY CONCLUSION, RESPONDENT POINTS TO THE LANGUAGE
OF JUSTICE HOLMES IN PRENTIS V. ATLANTIC COAST LINE CO., 211 U.S. 210,
226 (1908), DEFINING A "JUDICIAL INQUIRY" AS ONE THAT "INVESTIGATES,
DECLARES AND ENFORCES LIABILITIES AS THEY STAND ON PRESENT OR PAST
FACTS AND UNDER LAWS SUPPOSED ALREADY TO EXIST," AS CONTRASTED TO
LEGISLATION, WHICH "LOOKS TO THE FUTURE AND CHANGES EXISTING CONDITIONS
BY MAKING A NEW RULE TO BE APPLIED THEREAFTER TO ALL OR SOME PART OF
THOSE SUBJECT TO ITS POWER."  THE COURT IN PRENTIS HELD THAT A
RATEMAKING PROCEEDING IN THE VIRGINIA STATE CORPORATION COMMISSION WAS
LEGISLATIVE IN CHARACTER, DESPITE THE FACT THAT THE COMMISSION WAS
ASSUMED TO FUNCTION AS A COURT IN PERFORMING OTHER DUTIES.  SIMILARLY,
IN UNITED STATES V. FERREIRA, 13 HOW.  40 (1852), THIS COURT CONCLUDED
THAT THE ACT OF A DISTRICT JUDGE IN PASSING ON CLAIMS UNDER A TREATY,
SUBJECT TO APPROVAL BY THE SECRETARY OF THE TREASURY, WAS NOT A
JUDICIAL ONE; THE COURT HELD THAT CONGRESS, IN GIVING THIS AUTHORITY TO
JUDGES, REFERRED TO THEM BY THEIR OFFICE "MERELY AS A DESIGNATION OF
THE PERSONS TO WHOM THE AUTHORITY IS CONFIDED, AND THE TERRITORIAL
LIMITS TO WHICH IT EXTENDS."  ID., AT 47.  SEE ALSO GORDON V. UNITED
STATES, 2 WALL.  561 (1865); IN RE METZGER, 5 HOW.  176 (1847);
HAYBURN'S CASE, 2 DALL.  409 (1792). 

RESPONDENT ARGUES THAT THE FUNCTIONS OF THE JUDICIAL COUNCIL UNDER
SEC. 332 ARE, UNDER JUSTICE HOLMES' DEFINITIONS, LEGISLATIVE, OR
ADMINISTRATIVE, RATHER THAN JUDICIAL; AND THAT THE STATUTORY PROVISION
MAKING THE MEMBERSHIP OF THE COUNCIL COEXTENSIVE WITH THAT OF THE COURT
OF APPEALS FOR EACH CIRCUIT /10/ IS MERELY A MEANS OF DESIGNATING THE
INDIVIDUAL MEMBERS BY REFERENCE TO THEIR OFFICE.  CERTAINLY RESPONDENT
IS CORRECT IN URGING THAT CONGRESS' DESIGNATION OF CIRCUIT JUDGES AS
THE MEMBERS OF THE COUNCIL DOES NOT IN ITSELF MAKE THE COUNCIL'S
FUNCTION JUDICIAL.  I THINK, HOWEVER, THAT THE COUNCIL'S ORDERS
DIRECTING THE OFFICIAL BUSINESS OF THE DISTRICT COURTS ARE JUDICIAL
WITHIN THE GENERAL DEFINITION OF THAT TERM IN PRENTIS.  IN URGING THAT
THE COUNCIL'S FUNCTION MERELY "LOOKS TO THE FUTURE AND CHANGES EXISTING
CONDITIONS BY MAKING A NEW RULE," RESPONDENT DISREGARDS THE FACT THAT
EACH OF THE COUNCIL'S ORDERS, SUCH AS THOSE CHALLENGED HERE, IS ROOTED
IN THE FACTUAL CIRCUMSTANCES OF THE BUSINESS OF A PARTICULAR JUDGE OR
JUDGES AND THE STATUS OF A PARTICULAR CASE OR CASES IN THE DISTRICT
COURT; AND EACH ORDER, IF PROPERLY ENTERED, EXTENDS ONLY AS FAR AS THE
CIRCUMSTANCES THAT MAKE IT "NECESSARY . . . FOR THE EFFECTIVE AND
EXPEDITIOUS ADMINISTRATION OF THE BUSINESS OF THE COURTS."  28 U.S.C.
332.  AS NOTED ABOVE, THE COUNCIL'S ORDERS FOR THE HANDLING OF CASES IN
THE DISTRICT COURT SERVE AS ONE STEP IN THE PROGRESS OF THOSE CASES
TOWARD JUDGMENT.  THOSE ORDERS CAN BE EXPECTED TO APPLY COMMONLY
ACCEPTED NOTIONS OF PROPER JUDICIAL ADMINISTRATION TO THE SPECIAL
FACTUAL SITUATIONS OF PARTICULAR CASES OR PARTICULAR JUDGES. 

AS RESPONDENT POINTS OUT, THE POWER ENTRUSTED TO THE COUNCILS BY
SEC. 332, LIKE THOSE ADDED BY LATER ENACTMENTS, SEE INFRA, AT 109-110,
NECESSARILY INVOLVES A LARGE AMOUNT OF DISCRETION; ACCORDINGLY, REVIEW
OF THE COUNCILS' ACTIONS WILL USUALLY BE NARROW IN SCOPE.  BUT THIS
DOES NOT MEAN THAT THE COUNCILS ARE "LEFT AT LARGE AS PLANNING
AGENCIES."  UNITED STATES V. FIRST CITY NATIONAL BANK, WE WERE FACED
WITH A FEDERAL STATUTE DIRECTING THE COURTS TO DETERMINE WHETHER THE
ANTICOMPETITIVE EFFECT OF A PROPOSED BANK MERGER WAS OUTWEIGHED BY
CONSIDERATIONS OF COMMUNITY CONVENIENCE AND NEED.  WE RULED THAT THE
COURTS COULD ACCEPT THIS AS A "JUDICIAL TASK" BECAUSE, LIKE THE "RULE
OF REASON," LONG PREVALENT IN THE ANTITRUST FIELD, THE EFFECT-ON
COMPETITION STANDARD WAS A FAMILIAR ONE WITHIN "THE AREA OF JUDICIAL
COMPETENCE."  SEE ALSO UNITED STEELWORKERS V. UNITED STATES, 361 U.S.
39 (1959).  JUDICIAL ADMINISTRATION IS A MATTER IN WHICH THE COURTS
EVEN MORE CLEARLY SHOULD HAVE SPECIAL COMPETENCE.  WITHIN THE FRAMEWORK
OF THE STATUTES ESTABLISHING THE INFERIOR FEDERAL COURTS AND DEFINING
THEIR JURISDICTION, THE JUDICIAL COUNCILS ARE CHARGED WITH THE DUTY TO
TAKE SUCH ACTIONS AS ARE NECESSARY FOR THE EXPEDITION OF THE BUSINESS
OF THE COURTS IN EACH CIRCUIT.  THEIR DISCRETION IN THIS MATTER, WHILE
BROAD, DOES NOT SEEM TO BE OF A DIFFERENT ORDER FROM THAT POSSESSED BY
DISTRICT JUDGES WITH RESPECT TO MANY MATTERS OF TRIAL ADMINISTRATION. 
IN BOTH INSTANCES, REVIEW CAN CORRECT LEGAL ERROR OR ABUSE OF
DISCRETION WHERE IT OCCURS; THAT THE SCOPE OF REVIEW WILL OFTEN BE VERY
NARROW DOES NOT IN ITSELF ESTABLISH THAT THE EXERCISE OF SUCH
DISCRETION IS A NONJUDICIAL ACT.  /11/ 

RESPONDENT MAKES A FURTHER ARGUMENT TO AVERT A CONCLUSION THAT THE
ACTIONS HERE DRAWN IN QUESTION WERE JUDICIAL ACTIONS.  IT POINTS OUT
THAT CONGRESS SINCE 1939 HAS GIVEN THE JUDICIAL COUNCILS MANY SPECIFIC
POWERS-- POWERS THAT RESPONDENT CONSIDERS SO CLEARLY NONJUDICIAL AS TO
NEGATE ANY INFERENCE THAT THE COUNCIL SERVES AS A "JUDICIAL" BODY
WITHIN THE PURVIEW OF ARTICLE III.  THOSE POWERS INCLUDE THE POWER TO
ORDER A DISTRICT JUDGE, WHERE CIRCUMSTANCES REQUIRE, TO RESIDE IN A
PARTICULAR PART OF THE DISTRICT FOR WHICH HE IS APPOINTED, 28 U.S.C.
134(C); TO MAKE ANY NECESSARY ORDERS IF THE DISTRICT JUDGES IN ANY
DISTRICT ARE UNABLE TO AGREE UPON THE DIVISION OF BUSINESS AMONG THEM,
28 U.S.C. 137; TO CONSENT TO THE PRETERMISSION OF ANY REGULAR SESSION
OF A DISTRICT COURT FOR INSUFFICIENT BUSINESS OR OTHER GOOD CAUSE, 28
U.S.C. 140(A); TO APPROVE AS NECESSARY THE PROVISION OF JUDICIAL
ACCOMMODATIONS FOR THE COURTS BY THE GENERAL SERVICES ADMINISTRATION,
28 U.S.C. 142; TO CONSENT TO THE DESIGNATION AND ASSIGNMENT OF CIRCUIT
OR DISTRICT JUDGES TO SIT ON COURTS OTHER THAN THOSE FOR WHICH THEY ARE
APPOINTED, 28 U.S.C. 295; TO CERTIFY TO THE PRESIDENT THAT A CIRCUIT OR
DISTRICT JUDGE IS UNABLE TO DISCHARGE EFFICIENTLY ALL THE DUTIES OF HIS
OFFICE BY REASON OF PERMANENT MENTAL OR PHYSICAL DISABILITY, THUS
AUTHORIZING THE PRESIDENT TO APPOINT AN ADDITIONAL JUDGE, 28 U.S.C.
372(B); TO DIRECT WHERE THE RECORDS OF THE COURTS OF APPEALS AND
DISTRICT COURTS SHALL BE KEPT, 28 U.S.C. 457; TO APPROVE PLANS FOR
FURNISHING REPRESENTATION FOR DEFENDANTS UNDER THE CRIMINAL JUSTICE
ACT, 18 U.S.C. 3006AA); AND TO TAKE VARIOUS ACTIONS IN REGARD TO
REFEREES IN BANKRUPTCY, INCLUDING REMOVAL OF A REFEREE FOR CAUSE, 11
U.S.C. 62(B), 65(A), (B), 68(A), (B), (C), 71(B), (C). 

WHILE MANY OF THESE POWERS ARE TRIVIAL IN COMPARISON WITH THE
COURTS' BASIC RESPONSIBILITY FOR FINAL ADJUDICATION OF LAWSUITS, I AM
NOT PERSUADED THAT THEIR POSSESSION IS INCONSISTENT WITH A CONCLUSION
THAT THE COUNCIL, WHEN PERFORMING ITS CENTRAL RESPONSIBILITIES UNDER 28
U.S.C. 332, EXERCISES JUDICIAL POWER GRANTED UNDER ARTICLE III.  CF.
GLIDDEN CO. V. ZDANOK, 370 U.S. 530, 580-582 (1962) (OPINION OF HARLAN,
J.).  IN THE FIRST PLACE, THE RESPONDENT CONCEDES THAT AT LEAST ONE OF
THESE ENUMERATED POWERS-- THE POWER TO REMOVE REFEREES FOR CAUSE-- "CAN
PROPERLY BE REGARDED AS JUDICIAL," AND IT IS NOT AT ALL CLEAR THAT ANY
OF THEM IS BEYOND THE RANGE OF THE PERMISSIBLE ACTIVITIES OF AN ARTICLE
III COURT.  IN TEXTILE MILLS CORP. V. COMMISSIONER, 314 U.S. 326, 332
(1941), THE COURT NOTED THE RANGE OF RELATIVELY MINOR RESPONSIBILITIES,
OTHER THAN THE HEARING OF APPEALS, PLACED BY STATUTE IN THE COURTS OF
APPEALS.  THESE INCLUDED PRESCRIBING THE FORM OF WRITS AND OTHER
PROCESS AND THE FORM AND STYLE OF THE COURTS' SEALS; MAKING RULES AND
REGULATIONS; APPOINTING A CLERK AND APPROVING THE APPOINTMENT AND
REMOVAL OF DEPUTY CLERKS; AND FIXING THE TIMES WHEN COURT SHOULD BE
HELD.  EACH OF THESE FUNCTIONS WAS TO BE PERFORMED BY THE "COURT." 
WHILE IT IS POSSIBLE THAT THE PERFORMANCE OF SOME OF THEM MIGHT NEVER
PRODUCE A CASE OR CONTROVERSY REVIEWABLE IN THIS COURT, THEY ARE
REASONABLY ANCILLARY TO THE PRIMARY, DISPUTE-DECIDING FUNCTION OF THE
COURTS OF APPEALS.  JUST AS THE COURT IN TEXTILE MILLS DID NOT QUESTION
THE AUTHORITY OF CONGRESS TO GRANT SUCH INCIDENTAL POWERS TO THE COURTS
OF APPEALS, I SEE LITTLE REASON TO BELIEVE THAT ANY OF THE VARIOUS
SUPERVISORY TASKS ENTRUSTED TO THE JUDICIAL COUNCIL IS BEYOND THE
CAPACITIES OF A JUDICIAL BODY UNDER ARTICLE III. 

IN THE SECOND PLACE, MY CONCLUSION ABOUT THE NATURE OF THE COUNCIL'S
PRIMARY FUNCTION UNDER SEC. 332 WOULD STAND EVEN IF IT WERE DETERMINED
THAT ONE OR MORE OF THE COUNCIL'S ASSORTED INCIDENTAL POWERS WERE
INCAPABLE OF BEING EXERCISED BY AN ARTICLE III COURT.  IF I AM CORRECT
IN CONCLUDING THAT CONGRESS' PURPOSE IN 1939 IN CREATING THE JUDICIAL
COUNCILS WAS TO VEST IN THEM, AS AN ARM OF THE ARTICLE III JUDICIARY,
SUPERVISORY POWERS OVER THE DISPOSITION OF BUSINESS IN THE DISTRICT
COURTS, THAT PURPOSE IS NOT UNDONE BY A SUBSEQUENT CONGRESSIONAL
ATTEMPT TO GIVE THEM A MINOR NONJUDICIAL TASK; IT WOULD BE "PERVERSE TO
MAKE THE STATUS OF (THE COUNCILS) TURN UPON SO MINUSCULE A PORTION OF
THEIR PURPORTED FUNCTIONS."  GLIDDEN CO. V. ZDANOK, 370 U.S.,AT 583. 

        B. STATUTORY JURISDICTION 

THIS COURT DOES NOT, OF COURSE, NECESSARILY POSSESS ALL OF THE
APPELLATE JURISDICTION PERMITTED TO IT BY ARTICLE III.  THAT ARTICLE
PROVIDES THAT OUR APPELLATE JURISDICTION IS TO BE EXERCISED "WITH SUCH
EXCEPTIONS, AND UNDER SUCH REGULATIONS AS THE CONGRESS SHALL MAKE," AND
THIS LANGUAGE HAS BEEN HELD TO GIVE CONGRESS THE POWER, WITHIN LIMITS,
TO PRESCRIBE THE INSTANCES IN WHICH IT MAY BE EXERCISED.  E.G., EX
PARTE MCCARDLE, 7 WALL.  506, 512-513 (1869).  I TURN, THEREFORE, TO
THE JUDICIAL CODE TO DETERMINE OUR STATUTORY AUTHORITY TO CONSIDER
JUDGE CHANDLER'S PETITION. 

CONGRESS IN THE CODE HAS NOT SPOKEN, ONE WAY OR THE OTHER, REGARDING
REVIEW OF THE ORDERS OF JUDICIAL COUNCILS.  PETITIONER ASSERTS THAT THE
COURT HAS POWER TO ISSUE MANDAMUS OR PROHIBITION TO THE COUNCILS UNDER
THE ALL WRITS ACT, 28 U.S.C. 1651(A), WHICH PROVIDES THAT 

"(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."  THIS
STATUTE HAS BEEN CONSTRUED TO EMPOWER THIS COURT TO ISSUE AN
EXTRAORDINARY WRIT TO A LOWER FEDERAL COURT IN A CASE FALLING WITHIN
OUR STATUTORY APPELLATE JURISDICTION, WHERE THE ISSUANCE OF THE WRIT
WILL FURTHER THE EXERCISE OF THAT JURISDICTION.  SEE, E.G., DE BEERS
CONSOLIDATED MINES, LTD. V. UNITED STATES, 325 U.S. 212, 217 (1945);
UNITED STATES ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S. 196, 201
204 (1945).  IT IS NOW SETTLED THAT THE CASE NEED NOT BE ALREADY
PENDING IN THIS COURT BEFORE AN EXTRAORDINARY WRIT MAY BE ISSUED UNDER
SEC. 1651(A); RATHER, THE COURT MAY ISSUE THE WRIT WHEN THE LOWER
COURT'S ACTION MIGHT DEFEAT OR FRUSTRATE THIS COURT'S EVENTUAL
JURISDICTION, EVEN WHERE THAT JURISDICTION COULD BE INVOKED ON THE
MERITS ONLY AFTER PROCEEDINGS IN AN INTERMEDIATE COURT.  SEE, E.G., DE
BEERS CONSOLIDATED MINES, LTD. V. UNITED STATES, 325 U.S.,AT 217; EX
PARTE PERU, 318 U.S. 578 (1943); EX PARTE UNITED STATES, 287 U.S. 241,
248-249 (1932); MCCLELLAN V. CARLAND, 217 U.S. 268 (1910); CF. FTC V.
DEAN FOODS CO., 384 U.S. 597 (1966); ROCHE V. EVAPORATED MILK ASSN.,
319 U.S. 21 (1943).  BUT CF. IN RE GLASER, 198 U.S. 171, 173 (1905); IN
RE MASSACHUSETTS, 197 U.S. 482, 488 (1905). 

EACH OF THE PRIOR CASES IN WHICH THIS COURT HAS INVOKED SEC. 1651(A)
TO ISSUE A WRIT "IN AID OF (ITS JURISDICTION)" HAS INVOLVED A
PARTICULAR LAWSUIT OVER WHICH THE COURT WOULD HAVE STATUTORY REVIEW
JURISDICTION AT A LATER STAGE.  BY CONTRAST, PETITIONER'S RELIANCE ON
THIS STATUTE IS BOTTOMED ON THE FACT THAT THE ACTION OF THE JUDICIAL
COUNCIL "TOUCHES, THROUGH JUDGE CHANDLER'S FATE, HUNDREDS OF CASES OVER
WHICH THIS COURT HAS APPELLATE OR REVIEW JURISDICTION."  PETITION FOR
WRIT OF PROHIBITION AND/OR MANDAMUS 13.  HE ARGUES THAT THE COUNCIL'S
ORDERS, ALLOCATING TO OTHER JUDGES IN HIS DISTRICT CASES THAT WOULD
OTHERWISE BE DECIDED BY HIM, CONSTITUTE A USURPATION OF POWER THAT
CANNOT ADEQUATELY BE REMEDIED ON FINAL REVIEW OF THOSE CASES BY
CERTIORARI OR APPEAL IN THIS COURT.  THE UNITED STATES AS AMICUS CURIAE
AGREES THAT THIS CLAIM PROPERLY INVOKES THE COURT'S POWER TO CONSIDER
WHETHER MANDAMUS OR PROHIBITION SHOULD BE GRANTED.  /12/  ALTHOUGH THIS
EXPANSIVE USE OF SEC. 1651(A) HAS NO DIRECT PRECEDENT IN THIS COURT, IT
SEEMS TO ME WHOLLY IN LINE WITH THE HISTORY OF THAT STATUTE AND
CONSISTENT WITH THE MANNER IN WHICH IT HAS BEEN INTERPRETED BOTH HERE
AND IN THE LOWER COURTS. 

CHIEF JUSTICE STONE, WRITING FOR THE COURT IN EX PARTE PERU, 318
U.S.,AT 583, CHARACTERIZED THE "HISTORIC USE OF WRITS OF PROHIBITION
AND MANDAMUS DIRECTED BY AN APPELLATE TO AN INFERIOR COURT" AS THAT OF
"CONFINING THE INFERIOR COURT TO A LAWFUL EXERCISE OF ITS PRESCRIBED
JURISDICTION, OR OF COMPELLING IT TO EXERCISE ITS AUTHORITY WHEN IT IS
ITS DUTY TO DO SO."  THE BOUNDS OF THIS COURT'S DISCRETIONARY POWER TO
ISSUE SUCH WRITS WERE FURTHER STATED IN PARR V. UNITED STATES, 351 U.S.
513, 520-521 (1956): 

"THE POWER TO ISSUE THEM IS DISCRETIONARY AND IT IS SPARINGLY
EXERCISED . . . . THIS IS NOT A CASE WHERE A COURT HAS EXCEEDED OR
REFUSED TO EXERCISE ITS JURISDICTION, SEE ROCHE V. EVAPORATED MILK
ASSN., 319 U.S. 21, 26, NOR ONE WHERE APPELLATE REVIEW WILL BE DEFEATED
IF A WRIT DOES NOT ISSUE, CF. MARYLAND V. SOPER, 270 U.S. 9, 29-30. 
HERE THE MOST THAT COULD BE CLAIMED IS THAT THE DISTRICT COURTS HAVE
ERRED IN RULING ON MATTERS WITHIN THEIR JURISDICTION.  THE
EXTRAORDINARY WRITS DO NOT REACH TO SUCH CASES; THEY MAY NOT BE USED TO
THWART THE CONGRESSIONAL POLICY AGAINST PIECEMEAL APPEALS.  ROCHE V.
EVAPORATED MILK ASSN., SUPRA, AT P. 30."  /13/ 

IN PARR, THE PETITIONER'S CLAIM WAS SIMPLY THAT A DISTRICT COURT HAD
ERRED IN DISMISSING AN INDICTMENT AT THE GOVERNMENT'S REQUEST AFTER THE
GOVERNMENT HAD OBTAINED A NEW INDICTMENT FOR THE SAME OFFENSES IN
ANOTHER DISTRICT.  IN CONTRAST, THE PRESENT CASE INVOLVES A CLAIM THAT
THE COUNCIL'S ORDERS WERE ENTERED IN A MATTER ENTIRELY BEYOND ITS
JURISDICTION.  JUDGE CHANDLER CLAIMS THAT THE ORDER OF DECEMBER 13,
1965, DEPRIVING HIM OF BOTH PENDING AND FUTURE CASES, WAS TANTAMOUNT TO
HIS REMOVAL FROM OFFICE, AND THAT SUCH AN ACT FAR EXCEEDED THE LIMITED
JURISDICTION OVER "ADMINISTRATIVE" MATTERS CONFERRED ON THE COUNCIL BY
SEC. 332.  HE FURTHER ASSERTS, AS NOTED IN PART I, SUPRA, THAT THE
ORDER OF FEBRUARY 4, 1966, EXCEEDED THE COUNCIL'S JURISDICTION UNDER
EITHER SEC. 332 OR SEC. 137.  SUCH GRAVE CHARGES CLEARLY GO BEYOND A
MERE CLAIM THAT THE COUNCIL HAS "ERRED IN RULING ON MATTERS WITHIN
(ITS) JURISDICTION."  CF. WILL V. UNITED STATES, 389 U.S. 90, 95-96, 98
AND N. 6 (1967); SCHLANGENHAUF V. HOLDER, 379 U.S. 104 (1964). 

FURTHER, THERE SEEMS TO BE NO MEANS BY WHICH JUDGE CHANDLER'S
CHALLENGE TO THE ORDERS COULD BE AIRED ADEQUATELY ON REVIEW OF THE
CASES TO WHICH THEY PERTAIN.  WHILE THE LOSING PARTY IN A CASE ASSIGNED
TO ANOTHER DISTRICT JUDGE MIGHT CONCEIVABLY ARGUE ON APPEAL THAT HE IS
ENTITLED TO REVERSAL BECAUSE HIS CASE SHOULD HAVE BEEN HEARD BY JUDGE
CHANDLER, SUCH AN ARGUMENT WOULD ENCOUNTER FORMIDABLE OBSTACLES.  A
REVIEWING COURT WOULD HAVE NO WAY OF DETERMINING WHETHER A PARTICULAR
CASE FILED IN THE DISTRICT COURT AFTER THE FEBRUARY 4 ORDER WOULD, BUT
FOR THAT ORDER, HAVE BEEN ASSIGNED TO JUDGE CHANDLER; NOR IS IT CLEAR
THAT THE ERROR, IF DETECTABLE, WOULD IN ITSELF ENTITLE THE LOSING PARTY
TO INVALIDATE PROCEEDINGS HAD BEFORE ANOTHER JUDGE.  MORE BASICALLY,
JUDGE CHANDLER IS ASSERTING AN INJURY TO HIMSELF, APART FROM ANY
INJURIES TO THE PARTIES IN THOSE CASES; THE PARTIES CANNOT BE RELIED
UPON TO SEEK VINDICATION OF THAT INJURY.  CF. EX PARTE FAHEY, 332 U.S.
258, 260 (1947); EX PARTE HARDING, 219 U.S. 363, 372-380 (1911). 

IT IS DIFFICULT TO SEE HOW THE VERY MULTIPLICITY OF THE CASES
AFFECTED BY THE COUNCIL'S ORDERS COULD DEROGATE FROM THIS COURT'S
AUTHORITY UNDER SEC. 1651(A) TO ISSUE AN EXTRAORDINARY WRIT IN AID OF
ITS APPELLATE JURISDICTION OVER THEM.  A SOMEWHAT ANALOGOUS
MULTIPLICITY WAS FOUND TO MILITATE IN FAVOR OF THE ISSUANCE OF MANDAMUS
IN MCCULLOUGH V. COSGRAVE, 309 U.S. 634 (1940), AND IN LOS ANGELES
BRUSH CORP. V. JAMES, 272 U.S. 701 (1927).  AS LATER EXPLAINED BY MR.
JUSTICE BRENNAN, DISSENTING IN LA BUY V. HOWES LEATHER CO., 352 U.S.
249, 266 (1957), 

"LOS ANGELES BRUSH CORP. WAS A CASE WHERE A REFERENCE (TO A MASTER)
WAS MADE, NOT BECAUSE A DISTRICT JUDGE DECIDED THAT THE PARTICULAR
CIRCUMSTANCES OF THE PARTICULAR CASE REQUIRED A REFERENCE, BUT PURSUANT
TO AN AGREEMENT AMONG ALL THE JUDGES OF THAT DISTRICT COURT ALWAYS TO
APPOINT MASTERS TO HEAR PATENT CASES REGARDLESS OF THE CIRCUMSTANCES OF
PARTICULAR CASES."  MANDAMUS WAS THEREFORE ISSUED IN LOS ANGELES BRUSH
CORP., AND IN MCCULLOUGH, WHICH INVOLVED A SIMILAR SITUATION IN THE
SAME DISTRICT COURT, IN ORDER TO REMEDY A PERVASIVE DISREGARD OF THE
RULES OF CIVIL PROCEDURE AFFECTING NUMEROUS CASES.  /14/ 

SIMILARLY, IN LA BUY THE COURT UPHELD THE AUTHORITY OF THE COURT OF
APPEALS UNDER SEC. 1651(A) TO ISSUE WRITS OF MANDAMUS COMPELLING A
DISTRICT JUDGE TO RESCIND HIS REFERRAL OF TWO ANTITRUST CASES TO A
MASTER FOR TRIAL.  THE COURT FOUND THAT THE REFERRAL "WAS A CLEAR ABUSE
OF DISCRETION," AND FURTHER NOTED "THAT THE COURT OF APPEALS HAS FOR
YEARS ADMONISHED THE TRIAL JUDGES OF THE SEVENTH CIRCUIT THAT THE
PRACTICE OF MAKING REFERENCES 'DOES NOT COMMEND ITSELF' . . . (AND THAT
IT WAS) 'ALL TOO COMMON IN THE NORTHERN DISTRICT OF ILLINOIS.'"  352
U.S.,AT 257, 258.  THIS FACTOR WAS PRIMARY AMONG THE "EXCEPTIONAL
CIRCUMSTANCES" FOUND TO WARRANT THE COURT OF APPEALS' ISSUANCE OF THE
WRITS.     IN THE REPORTED CASE MOST NEARLY ANALOGOUS TO THIS ONE, THE
COURT OF APPEALS FOR THE THIRD CIRCUIT ISSUED A WRIT OF MANDAMUS AT THE
BEHEST OF THE UNITED STATES TO COMPEL A DISTRICT JUDGE TO RETURN TO THE
JUDICIAL OFFICE FROM WHICH HE HAD BEEN UNLAWFULLY REMOVED.  UNITED
STATES V. MALMIN, 272 F. 785 (C.A. 3D CIR. 1921).  JUDGE MALMIN, OF THE
DISTRICT COURT OF THE VIRGIN ISLANDS, HAD RETURNED TO THE UNITED STATES
AFTER THE TERRITORIAL GOVERNOR HAD PURPORTED TO REMOVE HIM AND APPOINT
ANOTHER TO HIS SEAT.  RELYING ON SEC. 262 OF THE JUDICIAL CODE OF 1911,
A PREDECESSOR OF THE ALL WRITS ACT, THE COURT RULED THAT IT HAD
AUTHORITY TO ISSUE THE WRIT "IN AID OF" ITS JURISDICTION, ID., AT 791;
IT OBSERVED THAT THE ABSENCE OF A LAWFULLY APPOINTED JUDGE OF THE
DISTRICT COURT AFFECTED THE RIGHTS OF LITIGANTS IN CASES REVIEWABLE IN
THE COURT OF APPEALS, AND THAT "THE RIGHT OF THE PUBLIC TO A PROPERLY
CONSTITUTED TRIAL COURT FROM WHICH APPEALS CAN VALIDLY LIE COULD NOT BE
ASSERTED OR BROUGHT ABOUT IN PROCEEDINGS ON APPEAL OR BY WRIT OF
ERROR."  IN THOSE CIRCUMSTANCES, THE COURT DEEMED IT "ESSENTIAL TO THE
APPELLATE JURISDICTION OF THIS COURT THAT ORDERLY PROCEEDINGS IN THE
DISTRICT COURT OF THE VIRGIN ISLANDS BE RESTORED."  ID., AT 792. 

A DISSENTER IN MALMIN DISAGREED WITH THE MAJORITY'S CONCLUSION THAT
THE DEFECT COULD NOT BE RECTIFIED ON APPEAL, AND URGED THAT MANDAMUS
SHOULD NOT ISSUE BECAUSE IT COULD NOT BIND THE SUCCEEDING APPOINTEE,
WHO WAS NOT A PARTY.  IN THE CASE BEFORE US, AS NOTED ABOVE, THE
ORDINARY APPEALS ARE NOT ADEQUATE TO PROTECT JUDGE CHANDLER'S INTEREST;
AND THERE IS NO PROBLEM OF MISSING PARTIES, SINCE IT IS THE JUDGE
HIMSELF WHO IS COMPLAINING OF ILLEGAL INTERFERENCE WITH THE EXERCISE OF
HIS OFFICE, AND THAT COMPLAINT CAN BE REMEDIED FULLY BY THE ISSUANCE OF
A WRIT AGAINST RESPONDENT JUDICIAL COUNCIL. 

FOR THESE REASONS I WOULD CONCLUDE THAT THE ACTIONS CHALLENGED BY
JUDGE CHANDLER SUFFICIENTLY AFFECT MATTERS WITHIN THIS COURT'S
APPELLATE JURISDICTION TO BRING HIS APPLICATION FOR AN EXTRAORDINARY
WRIT WITHIN OUR AUTHORITY UNDER SEC. 1651(A), AND THAT HIS CHARGES, IF
SUSTAINED, WOULD PRESENT AN APPROPRIATE OCCASION FOR THE ISSUANCE OF
SUCH A WRIT.  /15/

        III 

IN THE PRESENT POSTURE OF THIS CASE JUDGE CHANDLER, IN MY OPINION,
IS NOT ENTITLED TO THE RELIEF HE SEEKS.  THE ORDER OF DECEMBER 13,
1965, WHICH PROMPTED HIS RECOURSE TO THIS COURT, HAS BEEN SUPERSEDED BY
THE ORDER OF FEBRUARY 4, 1966, WHICH I AM SATISFIED IS ENTIRELY WITHIN
THE AUTHORITY OF THE COUNCIL.  I AM WHOLLY UNABLE TO REGARD THE LATTER
ORDER EITHER AS A "REMOVAL" OF JUDGE CHANDLER FROM JUDICIAL OFFICE, OR
AS ANYTHING OTHER THAN AN EFFORT TO MOVE ALONG JUDICIAL TRAFFIC IN THE
DISTRICT COURT.  IN THIS STATE OF AFFAIRS, I CAN FIND NO ROOM FOR THE
CONSTITUTIONAL ARGUMENT SO VIGOROUSLY MADE BY MY BROTHERS BLACK AND
DOUGLAS. 

        A 

PETITIONER STRENUOUSLY ATTACKS THE SUBSTANCE OF THE DECEMBER 13
ORDER, WHICH HE CLAIMS EFFECTIVELY REMOVED HIM FROM OFFICE, AS WELL AS
THE PROCEDURES UNDER WHICH THE ORDER WAS ISSUED.  HIS SUBSTANTIVE
ARGUMENT IS THAT SEC. 332, ON WHICH THE COUNCIL RELIED, DOES NOT
AUTHORIZE THE PLACING OF RESTRICTIONS UPON THE FUNCTIONING OF A
DISTRICT JUDGE, EVEN TEMPORARILY, AND THAT IF IT DOES THE STATUTE IS
UNCONSTITUTIONAL BECAUSE THE CONSTITUTIONAL PROVISIONS /16/  VESTING IN
CONGRESS AUTHORITY TO IMPEACH FEDERAL OFFICERS, INCLUDING JUDGES,
ESTABLISH THE EXCLUSIVE MEANS OF INQUIRY INTO THE FITNESS OF A FEDERAL
JUDGE TO PERFORM HIS DUTIES.  IN RESPONSE THE UNITED STATES AS AMICUS
ARGUES THAT THE IMPEACHMENT PROVISIONS SHOULD NOT BE READ AS PRECLUDING
LEGISLATION THAT WOULD AUTHORIZE SUPERVISION OF FEDERAL JUDGES BY
"JUDICIAL TRIAL OF THE FULTILLMENT OF THE CONDITION OF FEDERAL JUDICIAL
TENURE UNDER ARTICLE III-- THAT THE JUDGE MAINTAIN HIS 'GOOD
BEHAVIOR.'"  THIS QUESTION HAS BEEN THE SUBJECT OF SCHOLARLY DEBATE,
AND IS PRESENTLY BEFORE THE SENATE AS IT CONSIDERS THE PROPOSED
JUDICIAL REFORM ACT.  SEE HEARINGS ON S. 1506-S. 1516 BEFORE THE
SUBCOMMITTEE ON IMPROVEMENTS IN JUDICIAL MACHINERY OF THE SENATE
COMMITTEE ON THE JUDICIARY, 91ST CONG., 1ST SESS. (1969).  PETITIONER'S
PROCEDURAL OBJECTIONS TO THE DECEMBER 13 ORDER RELATE TO ITS ISSUANCE
EX PARTE, WITHOUT NOTICE OR HEARING-- CIRCUMSTANCES THAT RAISE SERIOUS
QUESTIONS UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

I BELIEVE THE RESPONDENT AND THE UNITED STATES ARE CORRECT IN
CONTENDING THAT THESE ISSUES NEED NOT BE RESOLVED ON THIS OCCASION.  AS
ALREADY APPEARS, THE DECEMBER 13 ORDER IS NO LONGER BEFORE US.
THEREFORE, THE ONLY QUESTION STILL REQUIRING DECISION IS THE VALIDITY
OF THE OUTSTANDING FEBRUARY 4 ORDER UNDER THE ENABLING STATUTES. 

 B 

THE COUNCIL RESTED THE FEBRUARY 4 ORDER ON ITS AUTHORITY UNDER BOTH
SEC. 137 AND SEC. 332.  CONSIDERING FIRST THE COUNCIL'S MORE GENERAL
GRANT OF AUTHORITY, SEC. 332, I THINK THIS ORDER WAS SUBSTANTIVELY
WITHIN THE POWERS CONFERRED BY THAT PROVISION.  THE ORDER WAS DESIGNED
TO DEAL WITH THE SITUATION IN JUDGE CHANDLER'S COURT BY REQUIRING HIM
TO DISPOSE OF HIS BACKLOG BEFORE NOTIFYING THE COUNCIL THAT HE IS
WILLING AND ABLE TO UNDERTAKE NEW ASSIGNMENTS.  SEE SUPPLEMENTAL
MEMORANDUM FOR RESPONDENT.  THAT THE COUNCILS MIGHT ISSUE ORDERS OF
THIS TYPE WAS CLEARLY CONTEMPLATED BY THE DRAFTSMEN OF SEC. 332, AND
SUCH ORDERS SEEM TO HAVE BEEN A CUSTOMARY MEASURE TAKEN BY THE COUNCILS
UNDER THE SECTION. 

THE LEGISLATIVE HISTORY OF SEC. 332, SUMMARIZED IN PART II ABOVE,
MAKES CLEAR THAT A JUDICIAL COUNCIL'S MANDATE TO "MAKE ALL NECESSARY
ORDERS FOR THE EFFECTIVE AND EXPEDITIOUS ADMINISTRATION OF THE BUSINESS
OF THE COURTS WITHIN ITS CIRCUIT" WAS INTENDED TO ENCOMPASS THE MAKING
OF ORDERS THAT WOULD DIRECT A DISTRICT JUDGE TO CLEAR UP HIS DOCKET OR
WOULD CHANNEL CASES TO OTHER JUDGES WHEN A SITUATION EXISTED WITH
RESPECT TO ONE JUDGE THAT WAS INIMICAL TO THE EFFECTIVE ADMINISTRATION
OF JUSTICE.  CF. VINSON, THE BUSINESS OF JUDICIAL ADMINISTRATION:
SUGGESTIONS TO THE CONFERENCE OF CHIEF JUSTICES, 35 A.B.A.J. 893, 895
(1949). 

THE JUDICIAL CONFERENCE OF THE UNITED STATES MADE A STUDY IN 1961 OF
THE ROLE OF THE JUDICIAL COUNCILS, CULMINATING IN A REPORT THAT WAS
TRANSMITTED TO CONGRESS BY CHIEF JUSTICE WARREN.  THAT REPORT, AFTER
THOROUGH CONSIDERATION OF THE LEGISLATIVE HISTORY OF THE 1939 ACT,
SPECIFICALLY LISTED AS AMONG THE RESPONSIBILITIES OF THE COUNCILS
"HAVING A JUDGE WHO HAS AN ACCUMULATION OF SUBMITTED CASES NOT TAKE ON
ANY FURTHER TRIAL WORK UNTIL SUCH CASES HAVE BEEN DECIDED."  H.R. DOC.
NO. 201, SUPRA, AT 10.  THIS POWER HAS BEEN EXERCISED ON OTHER
OCCASIONS BY OTHER JUDICIAL COUNCILS.  SEE, E.G., FISH, SUPRA, 37
U.CHI.L.REV.,AT 230; LUMBARD, THE PLACE OF THE FEDERAL JUDICIAL
COUNCILS IN THE ADMINISTRATION OF THE COURTS, 47 A.B.A.J. 169, 170-171
(1961); SHAFROTH, MODERN DEVELOPMENTS IN JUDICIAL ADMINISTRATION, 12
AM.U.L.REV.  150, 160 (1963).  THE PROPRIETY OF SUCH ACTION HAS
APPARENTLY NEVER BEFORE BEEN SERIOUSLY CHALLENGED. 

JUDGE CHANDLER ARGUES,HOWEVER, THAT SEC. 332 LIMITS THE COUNCIL'S
AUTHORITY IN MAKING THIS TYPE OF ORDER TO SITUATIONS IN WHICH THE ORDER
IS NECESSITATED BY THE EXISTENCE OF AN EXTRAORDINARY BACKLOG OF CASES,
AND THAT THE FEBRUARY 4 ORDER WAS PROMPTED, NOT BY SUCH A BACKLOG, BUT
BY THE COUNCIL'S DESIRE TO PUNISH JUDGE CHANDLER FOR MISBEHAVIOR. 
THERE SEEM TO BE TWO STRANDS TO THIS ARGUMENT.  FIRST, THERE ARE
SUGGESTIONS IN PETITIONER'S BRIEFS AND IN THOSE OF AMICUS CURIAE
SHIPLEY THAT THE COUNCIL'S ACTIONS HAVE BEEN TAKEN, NOT FOR THE REASONS
STATED IN THE VARIOUS ORDERS AND MINUTES OF THE COUNCIL, BUT FOR
REASONS OF PERSONAL ANIMOSITY.  THERE IS NOTHING IN THE RECORD, WHICH
CONSISTS OF JUDGE CHANDLER'S PETITION AND THE ORDERS AND MINUTES OF THE
COUNCIL, TO SUBSTANTIATE THIS CHARGE, AND I FOR ONE AM QUITE UNWILLING
TO ATTRIBUTE SUCH MOTIVES TO THE COUNCIL.  SECOND, JUDGE CHANDLER SEEMS
TO ASSERT THAT THE FEBRUARY 4 ORDER IS SUSTAINABLE ONLY IF SUPPORTED BY
A SHOWING THAT HIS DOCKET BORE A NUMERICALLY HEAVIER LOAD OF PENDING
CASES THAN DID THOSE OF HIS COLLEAGUES ON THE DISTRICT COURT, AND THAT
THIS JUSTIFICATION IS LACKING HERE.  /17/  I BELIEVE THIS ARGUMENT
REFLECTS AN OVERLY RESTRICTIVE VIEW OF THE JUDICIAL COUNCIL'S ROLE. 

THE LEGISLATIVE HISTORY OF SEC. 332 CONTAINS POSITIVE REFUTATION OF
PETITIONER'S ARGUMENT THAT THE ONLY FACTOR A COUNCIL MIGHT
APPROPRIATELY CONSIDER IN MAKING AN ORDER SUCH AS THAT OF FEBRUARY 4 IS
THE STATISTICAL WEIGHT OF THE WORKLOADS OF THE VARIOUS DISTRICT
JUDGES.  IT IS TRUE, AS THE LEGISLATIVE HISTORY IN PART II ABOVE
CONFIRMS, THAT ABATEMENT OF DELAYS IN DISPOSITION OF CASES WAS A
PRINCIPAL PURPOSE FOR CREATION OF THE COUNCILS; BUT THE COUNCILS WERE
DELIBERATELY GIVEN BROAD RESPONSIBILITIES TO MEET OTHER PROBLEMS AS
THEY AROSE.  CHIEF JUSTICE GRONER CONTEMPLATED THAT THE COUNCILS WOULD
COPE NOT ONLY WITH DELAYS BUT ALSO WITH "ANY OTHER MATTER WHICH IS THE
SUBJECT OF CRITICISM, OR PROPERLY COULD BE MADE THE SUBJECT OF
CRITICISM, FOR WHICH (A DISTRICT JUDGE) MAY BE RESPONSIBLE."  HEARINGS
ON S. 188, SUPRA, AT 11.  THE SENATE COMMITTEE INCLUDED THIS PART OF
THE TESTIMONY IN ITS REPORT RECOMMENDING PASSAGE OF THE BILL.  S. REP.
NO. 426, 76TH CONG., 1ST SESS., 3 (1939).  THE SAME WITNESS LATER
STATED THAT THE COUNCIL'S RESPONSIBILITIES WOULD EMBRACE CORRECTION OF
"WHATEVER IS WRONG IN THE ADMINISTRATION OF JUSTICE, FROM WHATEVER
SOURCES IT MAY ARISE," AS A MEANS OF PROMOTING "THE STRENGTHENING OF
CONFIDENCE ON THE PART OF THE PEOPLE."  HEARINGS ON S. 188, SUPRA, AT
12-13, 14.  /18/ 

THE BROAD MANDATE OF THE COUNCILS WAS FURTHER STRESSED BY THE
JUDICIAL CONFERENCE IN ITS 1961 REPORT.  THE CONFERENCE CONSIDERED IT
TO BE "PATENT" FROM THE LEGISLATIVE HISTORY THAT SEC. 332 

"IMPOSED UPON A JUDICIAL COUNCIL THE RESPONSIBILITY OF SEEING THAT
THE WORK AND FUNCTION OF THE COURTS IN ITS CIRCUIT WERE EXPEDITIOUSLY
AND EFFECTIVELY PERFORMED; AND THAT THIS RESPONSIBILITY OF OBSERVATION,
SUPERVISION, AND CORRECTION WENT TO THE WHOLE OF A COURT'S FUNCTIONING,
IN BOTH PERSONAL AND INSTITUTIONAL ASPECT."  H.R. DOC. NO. 201, SUPRA,
AT 6.  FROM A STUDY OF THE APPLICATIONS OF THE STATUTE BY THE VARIOUS
COUNCILS, THE CONFERENCE CONCLUDED THAT 

"MOST OF THE COUNCILS APPEAR, FROM THE THINGS WITH WHICH THEY HAVE
DEALT IN THESE SITUATIONS, TO HAVE RECOGNIZED THAT THEIR
RESPONSIBILITIES AND POWER EXTEND, NOT MERELY TO DEALING WITH THE
QUESTIONS OF THE HANDLING AND DISPATCHING OF A TRIAL COURT'S BUSINESS
IN ITS TECHNICAL SENSE, BUT ALSO TO DEALING WITH THE BUSINESS OF THE
JUDICIARY IN ITS BROADER OR INSTITUTIONAL SENSE, SUCH AS THE PREVENTING
OF ANY STIGMA, DISREPUTE, OR OTHER ELEMENT OF LOSS OF PUBLIC CONFIDENCE
OCCURRING AS TO THE FEDERAL COURTS OR TO THE ADMINISTRATION OF JUSTICE
BY THEM, FROM ANY NATURE OF ACTION BY AN INDIVIDUAL JUDGE OR A PERSON
ATTACHED TO THE COURTS."  ID., AT 7.  THE CONFERENCE SPECIFICALLY
APPROVED THIS CONSTRUCTION IN SPELLING OUT ITS CONCLUSIONS.  ID., AT 8
9. 

IT IS NOT NECESSARY TO DEFINE ALL OF THE LIMITS ON THE POWERS OF THE
COUNCILS UNDER SEC. 332 IN ORDER TO DETERMINE THAT THE FEBRUARY 4 ORDER
WAS A PROPER EXERCISE OF THOSE POWERS.  THE DECEMBER 13 ORDER NOTED
THAT THE COUNCIL WAS FAMILIAR WITH JUDGE CHANDLER'S CONDUCT OF OFFICIAL
BUSINESS FROM FOUR YEARS OF SCRUTINY, AND IT FURTHER RECITED THAT 

"(DURING THAT PERIOD JUDGE CHANDLER HAS BEEN A PARTY DEFENDANT IN
BOTH CIVIL AND CRIMINAL LITIGATION.  ONE CIVIL CASE IS STILL PENDING. 
TWO PROCEEDINGS HAVE BEEN BROUGHT IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT TO DISQUALIFY HIM FROM HANDLING SPECIFIC
LITIGATION.  IN ONE INSTANCE HE WAS ORDERED TO PROCEED NO FURTHER AND
THE OTHER IS STILL PENDING."  I BELIEVE THAT THESE CIRCUMSTANCES, TAKEN
AS A WHOLE, ESTABLISHED A PRIMA FACIE BASIS FOR THE COUNCIL'S
CONCLUSION THAT SOME ACTION WAS APPROPRIATE TO ALLEVIATE WHAT THE
COUNCIL MEMBERS PERCEIVED AS A THREAT TO PUBLIC CONFIDENCE IN THE
ADMINISTRATION OF JUSTICE. 

        C 

PASSING OVER THE NOW-REVOKED ACTION TAKEN ON DECEMBER 13, I CONSIDER
THE FEBRUARY 4 ORDER, RESTRICTING JUDGE CHANDLER FOR THE TIME BEING TO
THE CASES THEN PENDING BEFORE HIM TO BE A PERMISSIBLE INTERIM STEP
TOWARD EXPLORATION AND SOLUTION OF THE PROBLEM PRESENTED.  THE COUNCIL
MUST BE PRESUMED TO HAVE KNOWN OF THE SUBSTANTIAL NUMBER OF CASES THEN
AVAILABLE TO JUDGE CHANDLER, SEE N. 17, SUPRA, AND IT COULD REASONABLY
HAVE CONCLUDED THAT A CAREFUL WAY TO PROCEED WOULD BE TO OBSERVE THE
MANNER IN WHICH JUDGE CHANDLER HANDLED THOSE CASES BEFORE DETERMINING
WHAT MORE PERMANENT STEPS SHOULD BE TAKEN WITH RESPECT TO THE
ADMINISTRATION OF THE BUSINESS OF THE DISTRICT COURT. 

WHEN THE COUNCIL LEARNED THAT JUDGE CHANDLER HAD DISPOSED OF THE
BULK OF HIS CASES, IT INVITED HIM AND THE OTHER DISTRICT JUDGES TO
PROPOSE A NEW DISTRIBUTION OF BUSINESS; THE DISTRICT JUDGES TOGETHER,
OR JUDGE CHANDLER ALONE EXERCISING HIS RIGHT UNDER SEC. 137 TO CERTIFY
A DISAGREEMENT TO THE COUNCIL, COULD MAKE SUCH A PROPOSAL AT ANY TIME. 
JUDGE CHANDLER'S CLAIM THAT HIS FAILURE TO SEEK A NEW ALLOCATION IS THE
RESULT OF UNLAWFUL "DURESS" SEEMS INSUBSTANTIAL IN LIGHT OF THE INITIAL
VALIDITY OF THE FEBRUARY 4 ORDER.  EVEN IF THE DECEMBER 13 ORDER DID
IMPOSE A FORM OF DURESS IN JANUARY 1966, WHEN THE DISTRICT JUDGES
SETTLED UPON THE PRESENT DIVISION OF CASES, THAT ORDER HAD BEEN
REVOKED, AND THERE COULD HARDLY BE SAID TO HAVE BEEN DURESS, WHEN THE
DISTRICT JUDGES DECLINED THE COUNCIL'S JULY 1967 INVITATION TO PROPOSE
A NEW ORDER.  SERIOUS QUESTIONS WOULD BE PRESENTED IF, AFTER EXHAUSTING
MUCH OF HIS PENDING BUSINESS, JUDGE CHANDLER HAD SOUGHT ADDITIONAL
BUSINESS AND THE COUNCIL HAD DECLINED WITHOUT ADVANCING SUBSTANTIAL
ADDITIONAL JUSTIFICATION FOR THE REFUSAL.  HOWEVER, BECAUSE OF JUDGE
CHANDLER'S INACTION, THAT SITUATION IS NOT PRESENTED ON THIS RECORD. 
IN VIEW OF MY CONCLUSION THAT THE FEBRUARY 4 ORDER WAS A VALID
EXERCISE OF THE COUNCIL'S POWER UNDER SEC. 332, I NEED NOT CONSIDER THE
COUNCIL'S ALTERNATIVE JUSTIFICATION OF THE ORDER UNDER SEC. 137, OR
PETITIONER'S ARGUMENTS CONCERNING THE INAPPLICABILITY OF THAT
PROVISION.              D 

FINALLY, THE PROCEDURES FOLLOWED BY THE COUNCIL IN PROMULGATING ITS
FEBRUARY 4 ORDER DO NOT APPEAR TO HAVE BEEN OFFENSIVE TO CONGRESS'
CONCEPTION OF THE MANNER IN WHICH THE COUNCILS WOULD ACT, OR
INCONSISTENT WITH THE BASIC DEMANDS OF DUE PROCESS OF LAW.  IT SEEMS TO
HAVE BEEN ASSUMED THROUGHOUT THE CONSIDERATION OF THE 1939 ACT THAT, AT
LEAST ON RELATIVELY MINOR MATTERS, THE COUNCILS WOULD ORDINARILY
PROCEED EX PARTE.  SEE, E.G., HEARINGS ON H.R. 5999, SUPRA, AT 14
(STATEMENT OF CHIEF JUSTICE GRONER).  BEGINNING WITH THE INITIAL
SUGGESTION BY CHIEF JUSTICE HUGHES, ONE OF THE MAJOR REASONS FOR
PLACING THESE RESPONSIBILITIES IN A BODY OF CIRCUIT JUDGES WAS THAT
THEY WOULD HAVE A GREAT DEAL OF FIRSTHAND KNOWLEDGE ABOUT THE DISTRICT
COURTS AND ABOUT THE WORK AND CONDUCT OF THE INDIVIDUAL DISTRICT
JUDGES.  SEE H.R. DOC. NO. 201, SUPRA, AT 3 (CHIEF JUSTICE HUGHES);
HEARINGS ON S. 188, SUPRA, AT 16 (STATEMENT OF A. VANDERBILT).  THE
OTHER MAJOR SOURCE OF THE INFORMATION ON WHICH THE COUNCILS WOULD ACT
WAS TO BE THE DATA GATHERED BY THE ADMINISTRATIVE OFFICE. 

HOWEVER, THE STATUTE, WHICH USES VERY GENERAL LANGUAGE TO VEST HEAVY
RESPONSIBILITIES IN THE COUNCILS, CERTAINLY ALLOWS THE COUNCILS THE
FLEXIBILITY TO VARY THEIR PROCEDURES, ADOPTING IN A PARTICULAR INSTANCE
THOSE THAT ARE ESPECIALLY SUITED TO THE MATTER AT HAND OR NECESSITATED
BY THE DEMANDS OF FAIRNESS.  SEE FISH, SUPRA, AT 222.  THERE IS MUCH IN
OUR TRADITION OF DUE PROCESS OF LAW THAT RUNS COUNTER TO THE TAKING OF
SERIOUS ACTION ON THE BASIS OF EX PARTE ASSERTIONS OR SUSPICIONS OF
MISBEHAVIOR OR INCAPACITY.  APPARENTLY RECOGNIZING THIS, THE COUNCIL
AFTER ITS TEMPORARY DECEMBER 13 ORDER SCHEDULED A HEARING ON THE
QUESTION OF ASSIGNMENT OF CASES TO JUDGE CHANDLER, AND INVITED HIM TO
APPEAR WITH COUNSEL.  CF. CHANDLER V. JUDICIAL COUNCIL, 382 U.S. 1003
(1966).  AS EXPLAINED IN THE OPINION OF THE COURT, THIS HEARING WAS
CANCELED WHEN THE COUNCIL LEARNED THAT NO JUDGE OF THE DISTRICT COURT
WISHED TO APPEAR.  IN THESE CIRCUMSTANCES THE COUNCIL, IT SEEMS TO ME,
WAS JUSTIFIED IN ISSUING THE FEBRUARY 4 ORDER WITHOUT FURTHER
PROCEEDINGS. 

PETITIONER CHALLENGES THIS CONCLUSION IN SEVERAL WAYS.  FIRST, HE
ARGUES THAT THE ORDER DIRECTING THE HEARING, ENTERED JANUARY 27, 1966,
DID NOT CONTAIN ADEQUATE NOTICE OF THE SUBJECT MATTER OF THE HEARING. 
THAT ORDER EXPRESSLY REFERRED TO THE DECEMBER 13 ORDER AND TO JUDGE
CHANDLER'S ATTACK UPON IT IN THIS COURT, AND DECLARED THAT "THIS
MATTER" WOULD BE SET FOR A HEARING AT WHICH JUDGE CHANDLER MIGHT
"PRESENT SUCH MATTERS TO THE COUNCIL AS HE MAY DEEM FIT."  /19/  IN
VIEW OF THE FACT THAT THE DECEMBER 13 ORDER HAD LISTED SPECIFIC GROUNDS
ON WHICH THE COUNCIL'S ACTION WAS BASED, AND JUDGE CHANDLER MADE NO
REQUEST FOR FURTHER SPECIFICATION, I CANNOT CONSIDER HIS PRESENT
CONTENTION WELL TAKEN. 

SECOND, PETITIONER STATES THAT HIS BOYCOTT OF THE HEARING WAS BASED
ON HIS DENIAL THAT THE COUNCIL HAD ANY JURISDICTION TO HOLD IT.  HE
APPARENTLY CONCLUDES FROM THIS THAT THE FEBRUARY 4 ORDER STANDS AS
THOUGH THE COUNCIL HAD NEVER SCHEDULED A HEARING AT ALL.  HOWEVER, THE
COUNCIL HAD ALREADY ENTERED THE DECEMBER 13 ORDER, WHICH THIS COURT HAD
DECLINED, AT LEAST TEMPORARILY, TO DISTURB, AND THE COUNCIL'S AUTHORITY
TO PROCEED FURTHER WAS SURELY SUFFICIENTLY EVIDENT THAT JUDGE CHANDLER
WAS NOT ENTITLED TO REMAIN INDIFFERENT TO ITS ORDER SETTING THE MATTER
FOR A HEARING.  FINALLY, PETITIONER ASSERTS THAT THE PROPOSED HEARING
WAS DEFICIENT BECAUSE HE WAS MERELY INVITED, RATHER THAN ORDERED, TO
APPEAR.  HE CITES NO AUTHORITY FOR THIS PROPOSITION, AND IT APPEARS
QUITE UNTENABLE. 

THROUGHOUT JUDGE CHANDLER'S BRIEFS, AND IN THE DISSENTS OF MY
BROTHERS BLACK AND DOUGLAS, THERE ARE STRONG ASSERTIONS OF THE
IMPORTANCE OF AN INDEPENDENT FEDERAL JUDICIARY.  I FULLY AGREE THAT
THIS PRINCIPLE HOLDS A PROFOUNDLY IMPORTANT PLACE IN OUR SCHEME OF
GOVERNMENT.  HOWEVER, I CAN DISCERN NO INCURSION ON THAT PRINCIPLE IN
THE LEGISLATION CREATING THE JUDICIAL COUNCILS AND EMPOWERING THEM TO
SUPERVISE THE WORK OF THE DISTRICT COURTS, IN ORDER TO ENSURE THE
EFFECTIVE AND EXPEDITIOUS HANDLING OF THEIR BUSINESS.  THE FEBRUARY 4
ORDER, ENTERED PURSUANT TO THIS STATUTORY AUTHORITY, IS A SUPPORTABLE
EXERCISE OF THE COUNCIL'S RESPONSIBILITY TO OVERSEE THE ADMINISTRATION
OF FEDERAL JUSTICE. 

I WOULD GRANT JUDGE CHANDLER'S MOTION FOR LEAVE TO FILE HIS PETITION
FOR A WRIT OF PROHIBITION OR MANDAMUS,BUT FOR THE REASONS STATED ABOVE
I AM OF THE OPINION THAT NO SUCH WRIT SHOULD ISSUE. 

/1/  THE APPEAL IN RESCUE ARMY INVOLVED REVIEW OF A STATE
PROHIBITION PROCEEDING IN WHICH WAS CHALLENGED,BEFORE TRIAL, THE
COMPLEX STATE STATUTORY SCHEME UNDER WHICH AN APPELLANT HAD BEEN
CRIMINALLY CHARGED.  THE COURT OBSERVED THAT THE MEANINGS OF THE
VARIOUS STATUTORY PROVISIONS, AND THEIR RELATIONSHIPS TO ONE ANOTHER,
WERE LEFT UNDEFINED BY THE AMBIGUOUS OPINION OF THE STATE SUPREME
COURT; AND SINCE THE ATTACK WAS ON THE FACE OF THE STATUTES, THE COURT
FOUND IT UNCLEAR WHICH STATUTES WERE BEING CHALLENGED AND EVEN WHAT THE
CHARGES WERE AGAINST THE APPELLANT.  IN CONTRAST, THE PRESENT CASE
INVOLVES TWO BRIEF FEDERAL ENACTMENTS THAT ARE CHALLENGED, NOT ON THEIR
FACE, BUT AS APPLIED BY SPECIFIC ORDERS OF THE COUNCIL RELATING TO
JUDGE CHANDLER. 

THE COURT STATES THAT BECAUSE THE SCHEDULED HEARING BELOW WAS
CANCELED, "WE HAVE NO RECORD, NO PETITION FOR RELIEF ADDRESSED TO ANY
AGENCY, COURT OR TRIBUNAL OF ANY KIND OTHER THAN THIS COURT, AND A VERY
KNOTTY JURISDICTIONAL PROBLEM AS WELL."  WE DO, HOWEVER, HAVE A RECORD,
CONSISTING PRIMARILY OF THE SEVERAL ORDERS OF THE COUNCIL AND THE
MINUTES OF THE MEETINGS AT WHICH IT DEALT WITH THIS MATTER.  THE
COUNCIL'S FEBRUARY 4 ORDER, UNLIKE THAT OF DECEMBER 13, WHICH WAS
"ENTIRELY INTERLOCUTORY," EFFECTS A CHANGE OF INDEFINITE DURATION IN
THE ALLOCATION OF DISTRICT COURT BUSINESS.  IT WAS INCUMBENT ON THE
COUNCIL TO TAKE SUCH ACTION ONLY ON A RECORD THAT WOULD SUPPORT IT; IF
THE RECORD FAILS TO SUPPORT THE COUNCIL'S ACTION, THAT DOES NOT
OBFUSCATE JUDGE CHANDLER'S CLAIMS BUT STRENGTHENS THEM.  HIS CLAIMS FOR
THE MOST PART DO NOT DEPEND ON HIS ESTABLISHING FROM THE RECORD THE
EXISTENCE OF PARTICULAR FACTUAL CIRCUMSTANCES, CF. DEBACKER V.
BRAINARD, 396 U.S. 28 (1969), BUT ON THE ALLEGED LACK OF POSSIBLE
JUSTIFICATION IN THE RECORD FOR THE COUNCIL'S ACTION.  NOTHING IN
RESCUE ARMY SEEMS TO JUSTIFY A REFUSAL TO ADJUDICATE THE ISSUE THUS
PRESENTED.  I FIND THAT THE FEBRUARY 4 ORDER IS JUSTIFIED ON THE RECORD
IN THIS CASE, SEE PART III, INFRA. 

THE SIGNIFICANCE OF JUDGE CHANDLER'S FAILURE TO SEEK REVIEW IN A
TRIBUNAL OTHER THAN THIS COURT DEPENDS, OF COURSE, ON THE RESOLUTION OF
THE "KNOTTY JURISDICTIONAL PROBLEM" PRESENTED BY HIS PETITION TO THIS
COURT.  I FAIL TO SEE HOW IT JUSTIFIES NOT REACHING THAT QUESTION AT
ALL. 

/2/  "IN ALL CASES AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS AND
CONSULS, AND THOSE IN WHICH A STATE SHALL BE PARTY, THE SUPREME COURT
SHALL HAVE ORIGINAL JURISDICTION."  U.S. CONST., ART. III, SEC. 2, CL.
2. 

/3/  53 STAT. 1223, AS AMENDED, 28 U.S.C. 601, 604. 

/4/  53 STAT. 1224, AS AMENDED, 28 U.S.C. 332. 

/5/  53 STAT. 1225, AS AMENDED, 28 U.S.C. 333. 

/6/  THIS PROVISION STATED IN FULL: 

"TO THE END THAT THE WORK OF THE DISTRICT COURTS SHALL BE
EFFECTIVELY AND EXPEDITIOUSLY TRANSACTED, IT SHALL BE THE DUTY OF THE
SENIOR CIRCUIT JUDGE OF EACH CIRCUIT TO CALL AT SUCH TIME AND PLACE AS
HE SHALL DESIGNATE, BUT AT LEAST TWICE IN EACH YEAR, A COUNCIL COMPOSED
OF THE CIRCUIT JUDGES FOR SUCH CIRCUIT, WHO ARE HEREBY DESIGNATED A
COUNCIL FOR THAT PURPOSE, AT WHICH COUNCIL THE SENIOR CIRCUIT JUDGE
SHALL PRESIDE.  THE SENIOR JUDGE SHALL SUBMIT TO THE COUNCIL THE
QUARTERLY REPORTS OF THE DIRECTOR REQUIRED TO BE FILED BY THE
PROVISIONS OF SECTION 304, CLAUSE (2) (NOW 28 U.S.C. 604(A)(2)), AND
SUCH ACTION SHALL BE TAKEN THEREON BY THE COUNCIL AS MAY BE NECESSARY. 
IT SHALL BE THE DUTY OF THE DISTRICT JUDGES PROMPTLY TO CARRY OUT THE
DIRECTIONS OF THE COUNCIL AS TO THE ADMINISTRATION OF THE BUSINESS OF
THEIR RESPECTIVE COURTS.  NOTHING CONTAINED IN THIS SECTION SHALL
AFFECT THE PROVISIONS OF EXISTING LAW RELATING TO THE ASSIGNMENT OF
DISTRICT JUDGES TO SERVE OUTSIDE OF THE DISTRICTS FOR WHICH THEY,
RESPECTIVELY,WERE APPOINTED."  53 STAT. 1224. 

/7/  THE TESTIMONY OF JUDGE PARKER OF THE FOURTH CIRCUIT WAS TO THE
SAME EFFECT.  HE EXPLAINED: 

"THE IMPORTANCE OF THE BILL, TO MY MIND, IS IN UNIFYING THE
ADMINISTRATION OF JUSTICE IN THE HANDS OF THE CHIEF JUDICIAL OFFICERS
OF THE COURTS, AND CLOTHING THEM WITH RESPONSIBILITY FOR THE EXERCISE
OF THAT POWER. 

        .          .          .          . 

"NOW, WITH YOUR KNOWLEDGE OF HUMAN NATURE, YOU CAN UNDERSTAND IT IS
ONE THING FOR ME, AS THE SENIOR CIRCUIT JUDGE, TO SAY TO JUDGE JONES,
'THE WORK IS GETTING BEHIND IN YOUR DISTRICT.  YOU HAVE A NUMBER OF
CASES THAT OUGHT TO BE DECIDED.  I THINK YOU SHOULD DECIDE THEM.'  THAT
IS A VERY DIFFERENT THING FROM A COUNCIL OF ALL OF THE JUDGES OF THE
CIRCUIT SAYING, 'JUDGE JONES, YOU ARE BEHIND WITH YOUR WORK AND WE
THINK THAT THE CASES THAT YOU HAVE UNDER ADVISEMENT OUGHT TO BE
DECIDED, AND WE DIRECT THAT THEY BE DECIDED, AND WE WILL SEND JUDGE
SMITH INTO YOUR DISTRICT AND HE WILL ASSIST YOU IN HOLDING COURT IN
YOUR DISTRICT UNTIL THIS ARREARAGE IS CLEARED UP.' 

        .          .          .          . 

"IN OTHER WORDS, YOU WOULD HAVE A MAN SPEAKING WITH AUTHORITY OF LAW
AND NOT MERELY EXERCISING HIS PERSONAL AND PERSUASIVE INFLUENCE. 

"I THINK THAT THAT PROVISION FOR A COUNCIL IN EACH CIRCUIT IS ONE OF
THE BEST PROVISIONS IN THE BILL, . . . AND WILL GIVE THE CIRCUIT JUDGES
THE POWER TO UTILIZE THE JUDICIAL MAN POWER ON EACH CIRCUIT TO THE BEST
ADVANTAGE."  ID., AT 20-21. 

/8/  I FIND LITTLE GUIDANCE FOR OUR INTERPRETIVE PROBLEM IN THE FACT
THAT THE TERMS "ADMINISTRATION" AND "ADMINISTRATIVE" WERE SOMETIMES
USED BY WITNESSES OR CONGRESSMEN TO CHARACTERIZE THE DUTIES OF THE
COUNCILS.  THOSE TERMS ARE NOT TALISMANIC; THEY MAY, IN VARIOUS
CONTEXTS, BEAR A RANGE OF RELATED MEANINGS.  CERTAINLY THE PHRASE
"JUDICIAL ADMINISTRATION" IS OFTEN USED TO CHARACTERIZE JUDICIAL TASKS
PERFORMED BY THE COURTS AS INCIDENTS TO THEIR PRIMARY FUNCTION OF
RENDERING DEFINITIVE ADJUDICATIONS OF DISPUTES.  SINCE THE LEGISLATIVE
HISTORY AS A WHOLE INDICATES THAT CONGRESS REGARDED THE DIRECTION OF
THE TRIAL COURTS' HANDLING OF CASES AS A JUDICIAL FUNCTION, I CONCLUDE
THAT IT USED THE TERM "ADMINISTRATIVE" IN THE SENSE IN WHICH THE TERM
IS APPLIED, FOR EXAMPLE, TO MANY TRIAL-COURT RULINGS THAT DO NOT
DISPOSE OF ISSUES IN A CASE BUT MERELY DETERMINE ITS COURSE THROUGH THE
JUDICIAL PROCESS. 

NOR DO I FIND AN OBSTACLE TO MY CONSTRUCTION OF SEC. 332 IN
CONGRESS' FAILURE TO MAKE EXPRESS PROVISION FOR THE IMPOSITION OF
SANCTIONS ON A DISTRICT JUDGE WHO MIGHT CONTRAVENE AN ORDER OF THE
JUDICIAL COUNCIL.  WHEN THE QUESTION OF SANCTIONS WAS BROACHED AT THE
HEARINGS, CHIEF JUSTICE GRONER STATED: 

"I DOUBT BUT WHAT A JUDGE COULD PROPERLY SAY, 'I AM NOT GOING TO
DECIDE THIS CASE ANY SOONER THAN I CHOOSE TO DECIDE IT.  IT IS MY CASE,
AND I AM CONDUCTING MY COURT, AND YOU HAVE NO AUTHORITY, EXCEPT BY
IMPEACHMENT.'"  HEARINGS ON H.R. 5999, SUPRA, AT 14.  AT THIS,
REPRESENTATIVE CELLER REMINDED THE WITNESS OF THE PROVISION IN THE BILL
MAKING IT THE "DUTY" OF DISTRICT JUDGES TO CARRY OUT THE COUNCIL'S
DIRECTIONS.  THE WITNESS REPLIED: 

"I CANNOT CONCEIVE OF A DISTRICT JUDGE ANYWHERE, AND I DO NOT
BELIEVE THERE IS ANY, BUT, WHEN HE IS ADMONISHED BY THIS COUNCIL OF
JUDGES THAT HE MUST DO IN ACCORDANCE WITH THE REPORT MADE TO HIM A
PARTICULAR THING TO CORRECT WHAT IS REGARDED AS AN ABUSE, THAT HE WILL
FAIL TO DO IT.  IF HE DOES FAIL TO DO IT, THEN I THINK THERE WOULD BE
IMPOSED ON THE COUNCIL THE DUTY OF BRINGING THE MATTER IN SOME WAY TO
THE ATTENTION OF THE ONLY POWER IN EXISTENCE, IN A MATTER OF THAT KIND,
WHICH COULD APPLY THE CORRECT REMEDY; THAT IS, THE CONGRESS OF THE
UNITED STATES."  IBID. 

SIMILARLY, JUDGE PARKER, IN RESPONSE TO A QUESTION WHETHER THE BILL
WOULD "PUT ANY RESTRAINT ON THE COUNCIL AT ALL," STATED: 

"I DO NOT THINK THIS BILL DOES.  OF COURSE, I ASSUME THIS IS TRUE:
THAT THE COUNCIL WILL BE RESTRAINED BY THE INHERENT LIMITATIONS OF THE
SITUATION.  THEY WOULD KNOW THAT, IF THEY COMMANDED A JUDGE TO DO
SOMETHING, UNNECESSARILY OR UNWISELY, HE WOULD REFUSE TO DO IT, AND
THAT WOULD PROBABLY BE THE END OF THE MATTER." 

REPRESENTATIVE SUMNERS QUERIED:  "THEN YOU ARE LIMITED BY WHAT YOU
CAN DO TO A JUDGE IN THE WAY OF PUNISHMENT?"  "ABSOLUTELY," REPLIED
JUDGE PARKER.  ID., AT 22.  SEE ALSO HEARINGS ON S. 188, SUPRA, AT 18
19 (STATEMENT OF A. VANDERBILT). 

THERE IS NO NEED TO DETERMINE IN THIS CASE THE CORRECTNESS OF THESE
WITNESSES' APPARENT ASSUMPTION THAT NO FORM OF DISCIPLINE SHORT OF
IMPEACHMENT WOULD BE PERMISSIBLE FOR DISOBEDIENCE TO AN ORDER OF THE
COUNCIL, OR OF THEIR POSSIBLE ASSUMPTION THAT SUCH DISOBEDIENCE WOULD
BE AN IMPEACHABLE OFFENSE.  IT SEEMS CLEAR THAT THE WITNESSES'
STATEMENTS DO NOT DETRACT FROM THE CONCLUSION DRAWN FROM THE REST OF
THE LEGISLATIVE HISTORY, AND FROM THE LANGUAGE OF THE STATUTE ITSELF,
THAT THE DETERMINATIONS OF THE JUDICIAL COUNCIL WERE INTENDED TO CREATE
LEGAL DUTIES ON THE PART OF DISTRICT JUDGES TO WHOM THEY WERE
ADDRESSED.  AS JUDGE PARKER SAID, THE COUNCIL WOULD BE "SPEAKING WITH
AUTHORITY OF LAW AND NOT MERELY EXERCISING (A) PERSONAL AND PERSUASIVE
INFLUENCE."  HEARINGS ON H.R. 5999, SUPRA, AT 21.  EVEN UNDER THE
PRESENT STATUTORY SCHEME, CERTAIN SANCTIONS MIGHT BE AVAILABLE IN
PARTICULAR CIRCUMSTANCES, SUCH AS THE INVALIDATION ON APPEAL OF ORDERS
ENTERED BY A JUDGE IN A CASE THAT HAD BEEN ORDERED TRANSFERRED FROM HIS
DOCKET.  AT ANY RATE, THIS IS ONLY AS ASPECT OF THE GENERAL PROBLEM OF
DETERMINING THE PERMISSIBLE AND APPROPRIATE SANCTIONS FOR ANY KIND OF
UNLAWFUL JUDICIAL CONDUCT.  THE FACT THAT THE ENFORCEMENT MECHANISMS
ARE PROBLEMATIC DOES NOT DESTROY THE LEGAL NATURE OF THE COUNCIL'S
ORDERS.  SEE H.R. DOC. NO. 201, SUPRA, AT 8; CF. AETNA LIFE INS. CO. V.
HAWORTH, 300 U.S. 227 (1937); NASHVILLE, C. & ST. L.R. CO. V. WALLACE,
288 U.S. 249 (1933); N. 9, INFRA. 

/9/  FOR SIMILAR REASONS I HAVE LITTLE DIFFICULTY IN CHARACTERIZING
AS A "CASE OR CONTROVERSY" WITHIN THE ARTICLE III JUDICIAL POWER A
CHALLENGE TO AN ORDER OF THE COUNCIL THAT REGULATES A DISTRICT JUDGE IN
THE EXERCISE OF HIS OFFICIAL DUTIES.  WHERE, AS HERE, THE PURPOSE AND
EFFECT OF THE ORDER ARE TO RESTRICT THE JUDGE'S PERFORMANCE OF JUDICIAL
TASKS, AND HE ALLEGES ILLEGAL INTERFERENCE WITH THE EXERCISE OF HIS
OFFICE, HIS PETITION PRESENTS A COGNIZABLE CASE OR CONTROVERSY JUST AS
DOES A PETITION FOR REVIEW OF THE DISBARMENT OF AN ATTORNEY.  SEE NOTE,
THE EXCLUSIVENESS OF THE IMPEACHMENT POWER UNDER THE CONSTITUTION, 51
HARV.L.REV.  330, 334 (1937); CF. EX PARTE BRADLEY, 7 WALL.  364
(1869); EX PARTE ROBINSON, 19 WALL.  505 (1874); EX PARTE WALL, 107
U.S. 265 (1883) (MANDAMUS TO REVIEW DISBARMENT ORDERS OF LOWER FEDERAL
COURTS).  IF A LITIGANT IN A CASE BEFORE THE DISTRICT COURT CONSIDERED
HIMSELF AGGRIEVED BY A COUNCIL ORDER INVOLVING HIS CASE, HIS COMPLAINT
ALSO WOULD SEEM TO RAISE A JUSTICIABLE CASE OR CONTROVERSY, ALTHOUGH IT
IS NOT NECESSARY TO DECIDE NOW IN WHAT MANNER HE MIGHT OBTAIN REVIEW OF
THE ORDER. 

/10/  COMPARE 28 U.S.C. 332 WITH 28 U.S.C. 43(A) AND FED. RULE APP.
PROC. 35(A). 

/11/  IT SHOULD BE NOTED THAT VIRTUALLY ALL OF THE ADDITIONAL POWERS
THAT HAVE BEEN CONFERRED ON THE COUNCILS BY PROVISIONS OF THE JUDICIAL
CODE OTHER THAN SEC. 332, SEE INFRA, DEFINE THE COUNCIL'S TASKS IN
TERMS COMMONLY USED AS STANDARDS FOR JUDICIAL DETERMINATION.  SEE 28
U.S.C. 134(C) ("(IF THE PUBLIC INTEREST AND THE NATURE OF THE BUSINESS
OF A DISTRICT COURT REQUIRE"), SEC. 137 ("NECESSARY ORDERS"), SEC. 142
("COURT QUARTERS AND ACCOMMODATIONS . . . APPROVED AS NECESSARY"), SEC.
372(B) ("JUDGE . . . UNABLE TO DISCHARGE EFFICIENTLY ALL THE DUTIES OF
HIS OFFICE BY REASON OF PERMANENT MENTAL OR PHYSICAL DISABILITY"); 11
U.S.C. 62(B) ("(REMOVAL . . . FOR INCOMPETENCY, MISCONDUCT, OR NEGLECT
OF DUTY"). 

/12/  RESPONDENT JUDICIAL COUNCIL AGREES, FOR "SUBSTANTIALLY THE
REASONS ADVANCED BY THE SOLICITOR GENERAL," THAT SEC. 1651 PROVIDES
STATUTORY AUTHORITY FOR EXERCISE OF JURISDICTION IN THIS PROCEEDING, IF
THE PROCEEDING IS WITHIN THE PERMISSIBLE APPELLATE JURISDICTION OF THIS
COURT UNDER ARTICLE III.  LIKE THE AMICUS UNITED STATES, HOWEVER,
RESPONDENT NOTES THAT THE QUESTION IS NOT FREE FROM DOUBT.  IT IS
INCUMBENT UPON THE COURT TO CONSIDER THE QUESTION EVEN IN THE ABSENCE
OF DISAGREEMENT BETWEEN THE PARTIES. 

/13/  SEE ALSO WILL V. UNITED STATES, 389 U.S. 90 (1967); BANKERS
LIFE & CAS. CO. V. HOLLAND, 346 U.S. 379, 382-383 (1953). 

/14/ THE COURT IN LOS ANGELES BRUSH CORP. RELIED UPON ITS MANDAMUS
POWER UNDER SEC. 234 OF THE JUDICIAL CODE OF 1911, A PROVISION THAT MAY
NO LONGER BE IN EFFECT, SEE N. 15, INFRA.  HOWEVER, SINCE THE CASE WAS
ONE THAT WOULD BE REVIEWABLE ON CERTIORARI AT A LATER STAGE, IT SEEMS
THAT SEC. 262 (NOW CARRIED FORWARD IN SEC. 1651) WAS EQUALLY
APPLICABLE.  THE PER CURIAM OPINION IN MCCULLOUGH DID NOT DISCLOSE THE
STATUTORY BASIS FOR THE RULING THERE. 

/15/  IN MANY OF THE EARLY MANDAMUS CASES IN THIS COURT, SUCH AS EX
PARTE PERU, SUPRA, THE COURT BASED ITS ACTION ON BOTH SEC. 234 AND SEC.
262 OF THE JUDICIAL CODE OF 1911, THE PREDECESSORS OF SEC. 1651(A). 
THE COURT USUALLY DID NOT SPECIFY WHETHER IT RELIED UPON SEC. 234 OR
SEC. 262, APPARENTLY CONSIDERING THAT THEY FURNISHED OVERLAPPING
AUTHORITY.  SECTION 234, WHICH DERIVED FROM SEC. 13 OF THE JUDICIARY
ACT OF 1789, CONFERRED UPON THIS COURT, AND THIS COURT ONLY, THE "POWER
TO ISSUE . . . WRITS OF MANDAMUS, IN CASES WARRANTED BY THE PRINCIPLES
AND USAGES OF LAW, TO ANY COURTS APPOINTED UNDER THE AUTHORITY OF THE
UNITED STATES . . . ."  SECTION 262 PROVIDED THAT "(THE SUPREME COURT,
THE CIRCUIT COURTS OF APPEALS, AND THE DISTRICT COURTS SHALL HAVE POWER
TO ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED FOR BY STATUTE, WHICH MAY
BE NECESSARY FOR THE EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND
AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW."  THE FORMER PROVISION
WAS CONSTRUED AS CONFERRING UPON THIS COURT "A GENERAL SUPERVISORY
POWER OVER THE INFERIOR COURTS, SO FAR AS THIS POWER WAS EXERCISABLE
THROUGH A WRIT OF MANDAMUS IN ITS HISTORIC FUNCTION," ENABLING THE
COURT "TO EXERCISE THE ESSENTIALLY APPELLATE FUNCTION OF REVIEWING AND
REVISING A JUDICIAL PROCEEDING IN A LOWER COURT BY APPROPRIATE USE OF
THE COMMON-LAW WRIT OF MANDAMUS, WHETHER OR NOT IT HAD BEEN GIVEN BY
CONGRESS SOME OTHER STATUTORY APPELLATE JURISDICTION, OR POTENTIAL
APPELLATE JURISDICTION, BY WAY OF AN APPEAL OR WRIT OF ERROR OR
OTHERWISE."  IN RE JOSEPHSON, 218 F.2D 174, 177-178 (C.A. 1ST CIR.
1954).  SEE, E.G., VIRGINIA V. RIVES, 100 U.S. 313, 323-324 (1880); EX
PARTE BRADLEY, 7 WALL.  364, 375-377 (1869); EX PARTE CRANE, 5 PET. 190
(1831).  IN CONTRAST, THE POWER GRANTED BY SEC. 262 WAS NOT AN
INDEPENDENT APPELLATE POWER BUT MERELY AN AUXILIARY POWER EXERCISABLE
WHEN APPELLATE JURISDICTION WAS GRANTED BY SOME OTHER PROVISION OF
LAW. 

THESE TWO PROVISIONS WERE CONSOLIDATED INTO SEC. 1651(A) AS PART OF
THE 1948 REVISION OF THE JUDICIAL CODE.  THE BRIEF REVISER'S NOTE
EXPLAINED THAT THE "REVISED SECTION EXTENDS THE POWER TO ISSUE WRITS IN
AID OF JURISDICTION, TO ALL COURTS ESTABLISHED BY ACT OF CONGRESS, THUS
MAKING EXPLICIT THE RIGHT TO EXERCISE POWERS IMPLIED FROM THE CREATION
OF SUCH COURTS."  THE "SPECIAL PROVISIONS" OF SEC. 234 RELATING TO THE
SUPREME COURT "WERE OMITTED AS UNNECESSARY IN VIEW OF THE REVISED
BECAUSE THE LANGUAGE OF SEC. 1651(A) MORE CLOSELY RESEMBLES THAT OF
SEC. 262, IT HAS BEEN SPECULATED THAT CONGRESS BY ENACTING THE REVISION
MAY HAVE WITHDRAWN FROM THIS COURT ITS SPECIAL APPELLATE POWER UNDER
SEC. 234 TO SUPERVISE PROCEEDINGS IN THE LOWER FEDERAL COURTS WITHOUT
REGARD TO WHETHER ANY OTHER STATUTE GIVES THE COURT JURISDICTION TO
REVIEW THOSE PROCEEDINGS.  SEE LA BUY V. HOWES LEATHER CO., 352 U.S.
249, 260 (1957) (BRENNAN, J., DISSENTING); IN RE JOSEPHSON, SUPRA. 

THE UNITED STATES AS AMICUS URGES THE COURT TO RULE THAT NO SUCH
CHANGE WAS EFFECTED BY THE 1948 REVISION, ARGUING CORRECTLY THAT SEC.
234 WOULD CLEARLY ENCOMPASS THE TYPE OF REVIEW JUDGE CHANDLER SEEKS. 
THE UNITED STATES POINTS OUT, IN SUPPORT OF SUCH A RULING, THAT THE
REVISER'S NOTE STATED THAT SEC. 1651(A) "CONSOLIDATES" THE EARLIER
PROVISIONS, "WITH NECESSARY CHANGES IN PHRASEOLOGY"; THIS GAVE NO
INDICATION THAT A SIGNIFICANT CHANGE IN THE LAW WAS INTENDED, AND ONE
SHOULD NOT LIGHTLY BE INFERRED.  I NOTE THAT THE COURT IN EX PARTE
PERU, REFERRING TO BOTH SEC. 234 AND SEC. 262, STATED THAT "(UNDER THE
STATUTORY PROVISIONS, THE JURISDICTION OF THIS COURT TO ISSUE COMMON
LAW WRITS IN AID OF ITS APPELLATE JURISDICTION HAS BEEN CONSISTENTLY
SUSTAINED."  318 U.S.,AT 582-583.  ITS USE OF THE EXPRESSION "IN AID OF
ITS APPELLATE JURISDICTION" TO CHARACTERIZE BOTH STATUTES SUGGESTS THAT
THE SIMILAR PHRASE IN SEC. 1651(A) MAY ALSO ENCOMPASS THE POWERS
EXERCISED BY THIS COURT UNDER SEC. 234.  HOWEVER, THERE IS NO NEED TO
DECIDE THIS QUESTION HERE IN LIGHT OF THE FACT THAT THE REVIEWABILITY
IN THIS COURT OF THE MANY CASES WHOSE ALLOCATION IS DETERMINED BY THE
JUDICIAL COUNCIL'S ORDERS BRINGS JUDGE CHANDLER'S PETITION WITHIN THE
COURT'S POWERS AS THEY EXISTED UNDER SEC. 262. 

/16/  SEE U.S. CONST., ART. I, SECS. 2, 3; ART. II, SEC. 4. 

/17/  ALTHOUGH NEITHER THE DECEMBER 13 ORDER NOR THE FEBRUARY 4
ORDER RECITED FIGURES CONCERNING THE STATUS OF THE DOCKET IN THE
DISTRICT COURT, THE FORMER ORDER DID STATE THAT IT WAS PREDICATED ON A
SERIES OF MEETINGS OVER A FOUR-YEAR PERIOD IN WHICH THE COUNCIL "HAS
DISCUSSED AND CONSIDERED THE BUSINESS OF THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF OKLAHOMA AND HAS DONE SO WITH
PARTICULAR REGARD TO THE EFFECT THEREON OF THE ATTITUDE AND CONDUCT OF
JUDGE CHANDLER WHO, AS THE CHIEF JUDGE OF THAT DISTRICT, IS PRIMARILY
RESPONSIBLE FOR THE ADMINISTRATION OF SUCH BUSINESS." 

APPROXIMATELY A YEAR AFTER THE ISSUANCE OF THE FEBRUARY 4 ORDER, IN
THE COURSE OF DETERMINING "WHETHER THE EXISTING ORDER WAS STILL
SUITABLE OR WHETHER THE CONDITIONS HAD CHANGED TO AN EXTENT SUFFICIENT
TO DICTATE A CHANGE IN THE ORDER," THE COUNCIL EXAMINED STATISTICS
FURNISHED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS,
SHOWING THAT ON FEBRUARY 1, 1966, 138 CASES HAD BEEN PENDING BEFORE
JUDGE CHANDLER, AS CONTRASTED TO 92, 91, AND 99 CASES RESPECTIVELY
PENDING BEFORE THE OTHER ACTIVE DISTRICT JUDGES.  FURTHER STATISTICS
SHOWED THAT 50 CASES WERE STILL PENDING BEFORE JUDGE CHANDLER ON
JANUARY 31, 1967.  ON THE BASIS OF THESE FIGURES THE COUNCIL DETERMINED
THAT NO ACTION WAS THEN APPROPRIATE REGARDING THE ASSIGNMENT OF CASES
IN THE DISTRICT COURT. 

ON JULY 12, 1967, THE COUNCIL AGAIN REVIEWED THE CONDITION OF THE
DISTRICT COURT DOCKET AND, ON DISCOVERING THAT ONLY 12 CASES WERE
PENDING BEFORE JUDGE CHANDLER, DETERMINED THAT A REVISION SHOULD BE
MADE OF THE DISPOSITION OF BUSINESS MANDATED BY THE FEBRUARY 4 ORDER. 
IT REQUESTED NOTIFICATION FROM THE DISTRICT JUDGES OF A NEW ORDER OF
BUSINESS SUITABLE TO THEM.  HOWEVER, AS APPEARS FROM THE COURT'S
OPINION, THE DISTRICT JUDGES ADVISED THE COUNCIL "THAT THE CURRENT
ORDER FOR THE DIVISION OF BUSINESS IN THIS DISTRICT IS AGREEABLE UNDER
THE CIRCUMSTANCES."  ON RECEIVING THIS MESSAGE THE COUNCIL DETERMINED
TO LEAVE THE FEBRUARY 4 ORDER IN EFFECT.  SUBSEQUENT STATISTICS,
SUBMITTED TO THE COUNCIL BY THE ADMINISTRATIVE OFFICE, SHOWED THAT
JUDGE CHANDLER HAD SIX CASES PENDING ON JUNE 30, 1969. 

/18/  SEE ALSO HEARINGS ON H.R. 5999, SUPRA, AT 16 (STATEMENT OF
CHIEF JUSTICE GRONER); ID., AT 22 (STATEMENT OF JUDGE PARKER). 

/19/  THE ORDER STATED, IN PERTINENT PART: 

"THE COUNCIL GAVE CONSIDERATION TO ITS DECEMBER 13, 1965, ORDER IN
THIS MATTER, TO THE PROCEEDINGS IN THE SUPREME COURT ENTITLED
'HONORABLE STEPHEN S. CHANDLER, ETC. V. JUDICIAL COUNCIL . . . ,' TO
THE MOTION FOR STAY FILED THEREIN BY THE PETITIONER, TO THE RESPONSE
THERETO BY THE SOLICITOR GENERAL OF THE UNITED STATES, AND TO THE ORDER
OF THE SUPREME COURT ENTERED ON JANUARY 21, 1966.  THE COUNCIL NOTED
THE REFERENCE BY THE SUPREME COURT TO THE STATEMENT IN THE RESPONSE OF
THE SOLICITOR GENERAL THAT THE COUNCIL CONTEMPLATED PROMPT FURTHER
PROCEEDINGS AND THE ORDER OF THE SUPREME COURT THAT THE APPLICATION FOR
STAY BE DENIED 'PENDING THIS CONTEMPLATED PROMPT ACTION OF THE JUDICIAL
COUNCIL.' 

"IT IS ORDERED THAT THIS MATTER IS SET FOR HEARING AT 9:30 A.M.,
THURSDAY, FEBRUARY 10, 1966, IN ROOM 5009 OF THE UNITED STATES
COURTHOUSE AT OKLAHOMA CITY, OKLAHOMA, WHEN AND WHERE THE HONORABLE
STEPHEN S. CHANDLER MAY APPEAR IN PERSON AND WITH COUNSEL AND PRESENT
SUCH MATTERS TO THE COUNCIL AS HE MAY DEEM FIT." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE CONGRESS, WHICH CREATED THE LOWER FEDERAL COURTS, ALSO CREATED A
JUDICIAL COUNCIL FOR EACH CIRCUIT COMPOSED "OF THE CIRCUIT JUDGES FOR
THE CIRCUIT, IN REGULAR ACTIVE SERVICE."  28 U.S.C. 332.  THE COUNCIL
"SHALL MAKE ALL NECESSARY ORDERS FOR THE EFFECTIVE AND EXPEDITIOUS
ADMINISTRATION OF THE BUSINESS OF THE COURTS WITHIN ITS CIRCUIT." 
IBID.  AND CONGRESS DIRECTED THAT "(THE DISTRICT JUDGES SHALL PROMPTLY
CARRY INTO EFFECT ALL ORDERS OF THE JUDICIAL COUNCIL."  IBID. 

PETITIONER, STEPHEN S. CHANDLER, IS A FEDERAL DISTRICT JUDGE OF THE
TENTH CIRCUIT.  ON DECEMBER 13, 1965, THE COUNCIL, COMPOSED OF FIVE
JUDGES OF THE COURT OF APPEALS, ENTERED AN ORDER THAT "UNTIL THE
FURTHER ORDER OF THE JUDICIAL COUNCIL, THE HONORABLE STEPHEN S.
CHANDLER SHALL TAKE NO ACTION WHATSOEVER IN ANY CASE OR PROCEEDING NOW
OR HEREAFTER PENDING IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF IKLAHOMA; THAT ALL CASES AND PROCEEDINGS NOW
ASSIGNED TO OR PENDING BEFORE HIM SHALL BE REASSIGNED TO AND AMONG THE
OTHER JUDGES OF SAID COURT; AND THAT UNTIL THE FURTHER ORDER OF THE
JUDICIAL COUNCIL NO CASES OR PROCEEDINGS FILED OR INSTITUTED IN THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA SHALL
BE ASSIGNED TO HIM FOR ANY ACTION WHATSOEVER." 

PETITIONER FILED A PETITION FOR PROHIBITION AND/OR MANDAMUS, AND
SOUGHT A STAY OF THE ORDER OF THE COUNCIL.  THE COURT DENIED RELIEF
STATING THAT THE ORDER WAS "ENTIRELY INTERLOCUTORY IN CHARACTER PENDING
PROMPT FURTHER PROCEEDINGS."  382 U.S. 1003.  MR. JUSTICE BLACK AND I
DISSENTED.  ON FEBRUARY 4, 1966, THE COUNCIL ENTERED AN ORDER ALLOWING
PETITIONER TO CONTINUE TO SIT ON CASES FILED AND ASSIGNED AS OF
DECEMBER 28, 1965; BUT IT APPORTIONED ALL SUBSEQUENT CASES AMONG THE
REMAINING JUDGES.  THE COUNCIL STATED THAT ITS ORDER OF FEBRUARY 4,
1966, SUPERSEDED ITS ORDER OF DECEMBER 13, 1965.  BY A SUBSEQUENT ORDER
THE COUNCIL DIRECTED THAT NEW JUDICIAL BUSINESS WOULD NOT, UNTIL
FURTHER ORDER, BE ASSIGNED TO PETITIONER.              I 

THIS CASE HAS BEEN AND CONTINUES TO BE THE LIVELIEST, MOST
CONTROVERSIAL CONTEST INVOLVING A FEDERAL JUDGE IN MODERN UNITED STATES
HISTORY. 

THE ORDER OF FEBRUARY 4, 1966, WAS MADE BY THE COUNCIL ON THE BASIS
OF AN ALLEGED "DISAGREEMENT" AMONG THE DISTRICT JUDGES ON ONE SIDE AND
JUDGE CHANDLER ON THE OTHER OVER THE REASSIGNMENT OF CASES PREVIOUSLY
ASSIGNED TO JUDGE CHANDLER ON DECEMBER 28, 1965.  THE COUNCIL
AUTHORIZED JUDGE CHANDLER TO SIT ON CASES ASSIGNED TO HIM PRIOR TO
DECEMBER 28, 1965; AND IT ASSIGNED TO THE OTHER DISTRICT JUDGES ALL
CASES FILED AFTER THAT DATE. 

JUDGE CHANDLER ON THE EVE OF THAT ORDER, JANUARY 24, 1966, AGREED TO
ACQUIESCE IN THE ASSIGNMENT OF NEW CASES TO THE OTHER DISTRICT JUDGES. 
BUT HE DISAGREED WITH ANY ACTION CONCERNING "MY PENDING CASES."  AS TO
THEM HE SAID:  "THERE IS NO PROVISION OF LAW THAT GRANTS A JUDICIAL
COUNCIL JURISDICTION OVER CASES PENDING BEFORE A JUDGE IN THE VARIOUS
STAGES OF THE JUDICIAL PROCESS AFTER VALID ASSIGNMENT TO HIM.  I
CONSIDER IT MY DUTY TO CONTINUE TO ASSERT MY EXCLUSIVE JURISDICTION
OVER THESE CASES, AND SHALL DO SO." 

SINCE THE ORDER OF FEBRUARY 4, 1966, SAID THAT ALL CASES "ASSIGNED
TO JUDGE CHANDLER AS OF DECEMBER 28, 1965, SHALL REMAIN ASSIGNED TO
HIM," AND SINCE JUDGE CHANDLER DID NOT OBJECT TO THE LATER CASES BEING
ASSIGNED TO OTHERS, THE THEN SOLICITOR GENERAL (NOW MR. JUSTICE
MARSHALL) SUGGESTED IN A MEMORANDUM THAT THE CASE HAD BECOME MOOT. 

BUT THE SOLICITOR GENERAL IN A LATER MEMORANDUM FILED HERE MARCH 17,
1966, AGREED "THAT THE CASE CAN NO LONGER BE DEEMED MOOT" BECAUSE OF
JUDGE CHANDLER'S CONTINUING, EXPRESSED DISAGREEMENT WITH THE ORDER OF
FEBRUARY 4, 1966. 

AS NOTED, THE ORIGINAL ACTION AGAINST JUDGE CHANDLER WAS TAKEN UNDER
28 U.S.C. 332.  THE ACTION TAKEN FEBRUARY 4, 1966, WAS UNDER 28 U.S.C.
137, WHICH PROVIDES IN PART: 

     "IF THE DISTRICT JUDGES IN ANY DISTRICT ARE UNABLE TO AGREE

  UPON THE ADOPTION OF RULES OR ORDERS FOR THAT PURPOSE THE

  JUDICIAL COUNCIL OF THE CIRCUIT SHALL MAKE THE NECESSARY

  ORDERS." 

BUT THERE WAS NO DISAGREEMENT AMONG THE DISTRICT JUDGES AND NO POWER
OF THE COUNCIL TO ACT UNDER 28 U.S.C. 137.  THAT WAS PRECISELY THE
STRATEGY THAT JUDGE CHANDLER SELECTED SO THAT IF THE FEUD AGAINST HIM
CONTINUED, IT WOULD HAVE TO BE WAGED UNDER 28 U.S.C. 332.  BUT THE
COUNCIL DID NOT OBLIGE.  IT RECITED IN ITS ORDER OF FEBRUARY 4, 1966:
"IN THE CIRCUMSTANCES A DISAGREEMENT EXISTS AS TO THE DIVISION OF
BUSINESS AND THE ASSIGNMENT OF CASES IN THE WESTERN DISTRICT OF
OKLAHOMA." 

IF A DISAGREEMENT EXISTED ON FEBRUARY 4, 1966, IT EXISTED AFTER
JUDGE CHANDLER'S SO-CALLED "ACQUIESCENCE" WHICH WAS EXPRESSED IN THE
LETTER OF JANUARY 24, 1966.  THE ENTIRE GROUND IS THUS SWEPT OUT FROM
UNDER THE MOOTNESS ARGUMENT.  IN SPITE OF CHANDLER'S "ACQUIESCENCE" THE
COUNCIL CONSIDERED THE CASE A LIVE CONTROVERSY AND CHANDLER HAS
CONTESTED THE FEBRUARY 4, 1966, ORDER EVER SINCE IT ISSUED.  HIS
OPPOSITION AND THE CONTINUING RAGING CONTROVERSY LED THE FORMER
SOLICITOR GENERAL TO CONCEDE THAT THE CASE HAD NOT BECOME MOOT.  NOR
DOES THE COUNCIL, EVEN AT THIS LATE DATE, MAKE ANY SUCH SUGGESTION. 
NOR DOES THE PRESENT SOLICITOR GENERAL. 

THE COURT HOLDS THAT BECAUSE JUDGE CHANDLER REFUSED TO EXPRESS TO
THE COUNCIL HIS DISAGREEMENT WITH THE FEBRUARY 4, 1966, ORDER, HE
FAILED TO EXHAUST A POSSIBLE MEANS FOR OBTAINING THE RELIEF HE NOW
SEEKS IN THIS COURT.  HAD HE DISAGREED, HOWEVER, HE WOULD HAVE VESTED
THE COUNCIL WITH AUTHORITY TO ACT UNDER SEC. 137, AND THAT WAS
PRECISELY WHAT HE WANTED TO AVOID.  AS MR. JUSTICE HARLAN POINTS OUT,
THE WHOLE BASIS FOR JUDGE CHANDLER'S ATTACK IS "THAT IT IS ILLEGAL FOR
THE COUNCIL TO DEPRIVE HIM OF NEW CASES, AND EQUALLY SO FOR THE COUNCIL
TO CONDITION HIS ACCESS TO NEW CASES UPON HIS MAKING A REQUEST TO IT
THAT IS TANTAMOUNT TO A FORM OF A CERTIFICATION OF DISAGREEMENT UNDER
SEC. 137."  THE COURT STATES THAT BY NOT CERTIFYING DISAGREEMENT TO THE
COUNCIL JUDGE CHANDLER IS APPARENTLY ATTEMPTING "TO HAVE IT BOTH
WAYS."  IT SEEMS CLEAR, HOWEVER, THAT THE COURT'S OPINION NOW ALLOWS
THE COUNCIL "TO HAVE IT BOTH WAYS"-- FOR UNLESS JUDGE CHANDLER
CERTIFIES DISAGREEMENT WITH THE FEBRUARY 4, 1966, ORDER, HE IS BARRED
FROM RELIEF IN THIS COURT; AND IF HE SEEKS RELIEF FROM THE COUNCIL BY
DISAGREEING WITH ITS ORDER, HE CONCEDES JURISDICTION IN THE COUNCIL FOR
ITS ACTIONS UNDER SEC. 137.  NOTHING IN RESCUE ARMY V. MUNICIPAL COURT,
331 U.S. 549, RELIED ON BY THE COURT, COMPELS THIS RESULT. 

FOR THE REASONS FULLY STATED BY MR. JUSTICE HARLAN, IN PART I OF HIS
OPINION, THE CASE IS RIPE FOR DECISION AND WE HAVE NO EXCUSE FOR
DECLINING TO DECIDE IT.

        II 

OUR FIRST SUBSTANTIAL QUESTION IS WHETHER THIS IS A "CASE" OR
"CONTROVERSY" WITHIN OUR JURISDICTION.  AS CHIEF JUSTICE MARSHALL SAID
IN MARBURY V. MADISON, 1 CRANCH 137, 175: 

     "TO ENABLE THIS COURT, THEN, TO ISSUE A MANDAMUS, IT MUST BE

  SHOWN TO BE AN EXERCISE OF APPELLATE JURISDICTION, OR TO BE

  NECESSARY TO ENABLE (THE COURT) TO EXERCISE APPELLATE

  JURISDICTION. 

        .          .          .          . 

"IT IS THE ESSENTIAL CRITERION OF APPELLATE JURISDICTION, THAT

  IT REVISES AND CORRECTS THE PROCEEDINGS IN A CAUSE ALREADY

  INSTITUTED, AND DOES NOT CREATE THAT CAUSE." 

THE QUESTION THEREFORE IS WHETHER A JUDICIAL COUNCIL IS A LOWER
COURT OR INFERIOR TRIBUNAL WHOSE DECISIONS ARE REVIEWABLE IN THE
EXERCISE OF OUR APPELLATE JURISDICTION.  A JUDICIAL COUNCIL IS ONLY THE
COURT OF APPEALS FOR A NAMED CIRCUIT SITTING EN BANC.  THESE COUNCILS
WERE CREATED TO PLACE "RESPONSIBILITY FOR JUDICIAL ADMINISTRATION WHERE
IT BELONGS-- WITH THE JUDICIARY."  H.R. REP. NO. 702, 76TH CONG., 1ST
SESS., 4.  CHIEF JUSTICE GRONER OF THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA, WHO HELPED DRAFT THE BILL THAT WAS ENACTED,
EXPLAINED IT AS FOLLOWS TO THE SENATE:  /1/ 

"TO (GIVE THE ADMINISTRATIVE OFFICER ANY SUPERVISION OR CONTROL OVER
THE EXERCISE OF PURELY JUDICIAL FUNCTIONS) WOULD BE TO DESTROY THE VERY
FUNDAMENTALS OF OUR THEORY OF GOVERNMENT.  THE ADMINISTRATIVE OFFICER
PROPOSED IN THIS BILL IS PURELY AN ADMINISTRATIVE OFFICER . . . . IT IS
HIS DUTY TO OBSERVE AND SEE THAT WHATEVER IS WRONG IN THE
ADMINISTRATION OF JUSTICE, FROM WHATEVER SOURCES IT MAY ARISE, IS
BROUGHT TO THE ATTENTION OF THE JUDICIAL COUNCIL THAT IT MAY BE
CORRECTED, BY THE COURTS THEMSELVES.  THAT IS, AS I RESPECTFULLY
SUGGEST, AS IT OUGHT TO BE." 

THE COUNCIL BY 28 U.S.C. 137 IS UNDER A DUTY TO "MAKE THE NECESSARY
ORDERS" IN CASE THE DISTRICT JUDGES ARE "UNABLE TO AGREE UPON THE
ADOPTION OF RULES OR ORDERS FOR THAT PURPOSE."  THE COUNCIL DIRECTS THE
DISTRICT JUDGES TO CARRY OUT CERTAIN MEASURES.  THAT IS INDEED THE ROLE
OF A JUDICIAL ENTITY.  ONLY MEMBERS OF THE COURT OF APPEALS ARE MEMBERS
OF THE COUNCIL.  THOSE SITTING ON THE COUNCIL DO NOT EVEN CHANGE THEIR
HATS.  EXPEDITING THE FLOW OF CASES TO THE DOCKETS OF DISTRICT JUDGES
IS WHOLLY IN LINE WITH THE JUDICIAL FUNCTION.  WE STATED IN TEXTILE
MILLS CORP. V. COMMISSIONER, 314 U.S. 326, 332: 

"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 (SEC. 122); THE MAKING
OF RULES AND REGULATIONS (SEC. 122); THE APPOINTMENT OF A CLERK (SEC.
124) AND THE APPROVAL OF THE APPOINTMENT AND REMOVAL OF DEPUTY CLERKS
(SEC. 125); AND THE FIXING OF THE 'TIMES' WHEN COURT SHALL BE HELD. 
SEC. 126." 

SOME FUNCTIONS PERFORMED BY A JUDICIAL COUNCIL MAY BE
"ADMINISTRATIVE."  BUT WHERE, AS HERE, IT MOVES TO DISQUALIFY A JUDGE
FROM SITTING, REMOVING HIM PRO TANTO FROM OFFICE, IT MOVES AGAINST THE
INDIVIDUAL WITH ALL OF THE STING AND MUCH OF THE STIGMA THAT
IMPEACHMENT CARRIES.  THAT ACTION GIVES RISE TO A "CASE" OR
"CONTROVERSY" TRIGGERED BY THE COUNCIL.  THE COUNCIL IS THEREFORE UNDER
THE CIRCUMSTANCES AN INFERIOR JUDICIAL TRIBUNAL OVER WHICH WE HAVE
APPELLATE JURISDICTION WHERE A "CASE" OR "CONTROVERSY" ARISES.  ON THAT
ASSUMPTION, IT IS NOT SERIOUSLY ARGUED THAT MANDAMUS IS AN
INAPPROPRIATE REMEDY UNDER THE ALL WRITS ACT.  /2/ 

THE ORDER OF DECEMBER 13, 1965, MAY HAVE BEEN QULAIFIED BUT IT HAS
NOT BEEN ERASED.  PETITIONER STILL IS DISQUALIFIED TO SIT ON INCOMING
CASES.  HE STILL CARRIES THE STIGMA OF THE BRAND PUT ON HIM BY THE
COUNCIL.  WE SHOULD REMEMBER THAT THE CESSATION OF ILLEGAL CONDUCT DOES
NOT MAKE A CASE MOOT:

"A CONTROVERSY MAY REMAIN TO BE SETTLED IN SUCH CIRCUMSTANCES . . .
E.G., A DISPUTE OVER THE LEGALITY OF THE CHALLENGED PRACTICES . . . .
THE DEFENDANT IS FREE TO RETURN TO HIS OLD WAYS.  THIS, TOGETHER WITH A
PUBLIC INTEREST IN HAVING THE LEGALITY OF THE PRACTICES SETTLED,
MILITATES AGAINST A MOOTNESS CONCLUSION."  UNITED STATES V. W.T. GRANT
CO., 345 U.S. 629, 632. 

        III 

AN INDEPENDENT JUDICIARY IS ONE OF THIS NATION'S OUTSTANDING
CHARACTERISTICS.  ONCE A FEDERAL JUDGE IS CONFIRMED BY THE SENATE AND
TAKES HIS OATH, HE IS INDEPENDENT OF EVERY OTHER JUDGE.  HE COMMONLY
WORKS WITH OTHER FEDERAL JUDGES WHO ARE LIKEWISE SOVEREIGN.  BUT
NEITHER ONE ALONE NOR ANY NUMBER BANDED TOGETHER CAN ACT AS CENSOR AND
PLACE SANCTIONS ON HIM.  UNDER THE CONSTITUTION THE ONLY LEVERAGE THAT
CAN BE ASSERTED AGAINST HIM IS IMPEACHMENT, WHERE PURSUANT TO A
RESOLUTION PASSED BY THE HOUSE, HE IS TRIED BY THE SENATE, SITTING AS A
JURY.  ART. I, SEC. 2 AND SEC. 3.  OUR TRADITION EVEN BARS POLITICAL
IMPEACHMENTS AS EVIDENCED BY THE HIGHLY PARTISAN, BUT UNSUCCESSFUL,
EFFORT TO OUST JUSTICE SAMUEL CHASE OF THIS COURT IN 1805.  /3/  THE
IMPEACHMENT PROVISION OF THE CONSTITUTION /4/  INDEED PROVIDES FOR THE
REMOVAL OF "OFFICERS OF THE UNITED STATES," WHICH INCLUDES JUDGES, ON
"IMPEACHMENT FOR, AND CONVICTION OF, TREASON, BRIBERY, OR OTHER HIGH
CRIMES AND MISDEMEANORS."  ART. II, SEC. 4. 

WHAT THE JUDICIAL COUNCIL DID WHEN IT ORDERED PETITIONER TO "TAKE NO
ACTION WHATSOEVER IN ANY CASE OR PROCEEDING NOW OR HEREAFTER PENDING"
IN HIS COURT WAS TO DO WHAT ONLY THE COURT OF IMPEACHMENT CAN DO.  IF
THE BUSINESS OF THE FEDERAL COURTS NEEDS ADMINISTRATIVE OVERSIGHT, THE
FLOW OF CASES CAN BE REGULATED.  SOME JUDGES WORK MORE SLOWLY THAN
OTHERS; SOME CASES MAY TAKE MONTHS WHILE OTHERS TAKE HOURS OR DAYS. 
MATTERS OF THIS KIND MAY BE REGULATED BY THE ASSIGNMENT PROCEDURE.  BUT
THERE IS NO POWER UNDER OUR CONSTITUTION FOR ONE GROUP OF FEDERAL
JUDGES TO CENSOR OT DISCIPLINE ANY FEDERAL JUDGE AND NO POWER TO
DECLARE HIM INEFFICIENT AND STRIP HIM OF HIS POWER TO ACT AS A JUDGE. 

THE MOOD OF SOME FEDERAL JUDGES IS OPPOSED TO THIS VIEW AND THEY ARE
ACTIVE IN ATTEMPTING TO MAKE ALL FEDERAL JUDGES WALK IN SOME UNIFORM
STEP.  WHAT HAS HAPPENED TO PETITIONER IS NOT A RARE INSTANCE; IT HAS
HAPPENED TO OTHER FEDERAL JUDGES WHO HAVE HAD PERHAPS A MORE
LIBERATARIAN APPROACH TO THE BILL OF RIGHTS THAN THEIR BRETHREN.  THE
RESULT IS THAT THE NONCONFORMIST HAS SUFFERED GREATLY AT THE HANDS OF
HIS FELLOW JUDGES. 

THE PROBLEM IS NOT RESOLVED BY SAYING THAT ONLY JUDICIAL
ADMINISTRATIVE MATTERS ARE INVOLVED.  THE POWER TO KEEP A PARTICULAR
JUDGE FROM SITTING ON A RACIAL CASE, A CHURCH-AND-STATE CASE, A FREE
PRESS CASE, A SEARCH-AND-SEIZURE CASE, A RAILROAD CASE, AN ANTITRUST
CASE, OR A UNION CASE MAY HAVE PROFOUND CONSEQUENCES.  JUDGES ARE NOT
FUNGIBLE; THEY COVER THE CONSTITUTIONAL SPECTRUM; AND A PARTICULAR
JUDGE'S EMPHASIS MAY MAKE A WORLD OF DIFFERENCE WHEN IT COMES TO
RULINGS ON EVIDENCE, THE TEMPER OF THE COURTROOM, THE TOLERANCE FOR A
PROFFERED DEFENSE, AND THE LIKE.  LAWYERS RECOGNIZE THIS WHEN THEY TALK
ABOUT "SHOPPING" FOR A JUDGE; SENATORS RECOGNIZE THIS WHEN THEY ARE
ASKED TO GIVE THEIR "ADVICE AND CONSENT" TO JUDICIAL APPOINTMENTS;
LAYMEN RECOGNIZE THIS WHEN THEY APPRAISE THE QUALITY AND IMAGE OF THE
JUDICIARY IN THEIR OWN COMMUNITY. 

THESE ARE SUBTLE, IMPONDERABLE FACTORS WHICH OTHER JUDGES SHOULD NOT
BE ALLOWED TO MANIPULATE TO FURTHER THEIR OWN CONCEPT OF THE PUBLIC
GOOD.  THAT IS THE CRUCIAL ISSUE AT THE HEART OF THE PRESENT
CONTROVERSY. 

ALL POWER IS A HEADY THING AS EVIDENCED BY THE INCREASING EFFORTS OF
GROUPS OF FEDERAL JUDGES TO ACT AS REFEREES OVER OTHER FEDERAL JUDGES. 

ON JUNE 10, 1969, THE JUDICIAL CONFERENCE ADOPTED RESOLUTIONS FOR
THE GOVERNANCE OF MANY ACTIVITIES OF CIRCUIT JUDGES AND DISTRICTS
JUDGES.  RESOLUTION I PROVIDED:  /5/ 

"A JUDGE IN REGULAR ACTIVE SERVICE SHALL NOT ACCEPT COMPENSATION OF
ANY KIND, WHETHER IN THE FORM OF LOANS, GIFTS, GRATUITIES, HONORARIA OR
OTHERWISE, FOR SERVICES HEREAFTER PERFORMED OR TO BE PERFORMED BY HIM
EXCEPT THAT PROVIDED BY LAW FOR THE PERFORMANCE OF HIS JUDICIAL DUTIES
 

"PROVIDED HOWEVER, THE JUDICIAL COUNCIL OF THE CIRCUIT (OR IN

  THE CASE OF COURTS NOT PART OF A CIRCUIT, THE JUDGES OF THE COURT

  IN ACTIVE SERVICE) MAY UPON APPLICATION OF A JUDGE APPROVE THE

  ACCEPTANCE OF COMPENSATION FOR THE PERFORMANCE OF SERVICES OTHER

  THAN HIS JUDICIAL DUTIES UPON A DETERMINATION THAT THE SERVICES

  ARE IN THE PUBLIC INTEREST OR ARE JUSTIFIED BY EXCEPTIONAL

  CIRCUMSTANCES AND THAT THE SERVICES WILL NOT INTERFERE WITH HIS

  JUDICIAL DUTIES.  BOTH THE SERVICES TO BE PERFORMED AND THE

  COMPENSATION TO BE PAID SHALL BE MADE A MATTER OF PUBLIC RECORD

AND REPORTED TO THE JUDICIAL CONFERENCE OF THE UNITED STATES." 

IN THE NINTH CIRCUIT, OF WHICH I AM CIRCUIT JUSTICE, THIS RESOLUTION
WAS ASSUMED TO BAR A FEDERAL JUDGE FROM EVEN BEING AN EXECUTOR OF HIS
OWN MOTHER'S ESTATE, UNLESS OF COURSE HE GOT A PERMIT FROM THE OTHER
JUDGES.  RESOLUTION I APPARENTLY REQUIRED PERMITS FOR FEDERAL JUDGES TO
TEACH IN A LAW SCHOOL-- A PRACTICE WHICH HAS PAID ENORMOUS PROFESSIONAL
DIVIDENDS AND IMPLICATES NOTHING BUT THE INTEREST AND ENERGY OF THE
JUDGE.  JUSTICE JOSEPH STORY (WHO SAT HERE FROM 1811 TO 1845) WOULD, I
IMAGINE, HAVE BEEN APPALLED IF HE HAD BEEN TOLD THAT HE COULD NOT WRITE
ANY OF HIS MANY BOOKS /6/  WITHOUT GETTING PERMISSION FROM A GROUP OF
OTHER FEDERAL JUDGES.  AND I IMAGINE THAT JUSTICE CARDOZO, JUDGE JEROME
FRANK, AND JUDGE LEARNED HAND WOULD HAVE FELT THE SAME.  /7/     TO
OBTAIN A PERMIT THE OTHER JUDGES MUST DETERMINE IF THE SERVICES ARE "IN
THE PUBLIC INTEREST."  PRAY, HOW COULD THEY DETERMINE THAT UNLESS THEY
SAW THE LECTURE, OR THE LECTURE NOTES, OR THE MANUSCRIPT?  AND WHOSE
"PUBLIC INTEREST" WOULD CONTROL?  JUDGES WHO HAVE NOT BEEN EDUCATED TO
THE NEEDS OF ECOLOGY AND OF CONSERVATION?  JUDGES WHO STILL HAVE A
"PLANTATION" STATE OF MIND AND RELEGATE MANY MINORITIES TO SECOND-CLASS
CITIZENSHIP?  JUDGES WHO HAVE A NARROW VIEW OF FREEDOM OF EXPRESSION OR
A BROAD VIEW OF DUE PROCESS?  PUBLIC ISSUES DEAL WITH A VAST
CONTRARIETY OF VIEWS; AND JUDGES, LIKE OTHER PEOPLE, ARE TO BE FOUND IN
ALL PARTS OF THE SPECTRUM.  HOW UNDER THE CONSTITUTION CAN ONE JUDGE'S
LIPS BE SEALED BECAUSE OF THE PREDESTINED VIEW OF OTHER JUDGES?  AN
EASY REPLY IS THAT RESOLUTION I COVERED ONLY SERVICES FOR
"COMPENSATION."  BUT BOOKS ENTAIL ROYALTIES; AND TAX-WISE IT IS NOT
ALWAYS EASY TO DISASSOCIATE AN AUTHOR FROM ROYALTIES.  EVEN THOUGH THEY
GO ULTIMATELY TO CHARITY, THEY PASS THROUGH HIS INCOME TAX RETURNS. 

IT IS TIME THAT AN END BE PUT TO THESE EFFORTS OF FEDERAL JUDGES TO
RIDE HERD ON OTHER FEDERAL JUDGES.  THIS IS A FORM OF "HAZING" HAVING
NO PLACE UNDER THE CONSTITUTION.  FEDERAL JUDGES ARE ENTITLED, LIKE
OTHER PEOPLE, TO THE FULL FREEDOM OF THE FIRST AMENDMENT.  IF THEY
BREAK A LAW, THEY CAN BE PROSECUTED.  IF THEY BECOME CORRUPT OR SIT IN
CASES IN WHICH THEY HAVE A PERSONAL OR FAMILY STAKE, THEY CAN BE
IMPEACHED BY CONGRESS.  BUT I SEARCH THE CONSTITUTION IN VAIN FOR ANY
POWER OF SURVEILLANCE THAT OTHER FEDERAL JUDGES HAVE OVER THOSE
ABERRATIONS.  /8/  SOME OF THE IDIOSYNCRASIES MAY BE DISPLACING TO
THOSE WHO WALK IN MORE MEASURED, CONSERVATIVE STEPS.  BUT THOSE
IDIOSYNCRASIES CAN BE OF NO POSSIBLE CONSTITUTIONAL CONCERN TO OTHER
FEDERAL JUDGES. 

IT IS TIME WE PUT AN END TO THE MONSTROUS PRACTICES THAT SEEM ABOUT
TO OVERTAKE US, BY VACATING THE ORDERS OF THE JUDICIAL COUNCIL THAT
BRAND JUDGE CHANDLER AS UNFIT TO SIT IN ONCOMING CASES.  ONLY CONGRESS
CAN TAKE ACTION, UNLESS THE CONSTITUTION IS AMENDED TO ALLOW JUDGES TO
CENSOR, POLICE, OR IMPEACH THEIR FELLOW JUDGES. 

/1/  HEARINGS ON S. 188 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 76TH CONG., 1ST SESS., 12-13 (APR. 4-5,
1939). 

/2/  "THE SUPREME COURT AND ALL COURTS ESTABLISHED BY ACT OF
CONGRESS MAY ISSUE ALL WRITS NECESSARY OR APPROPRIATE IN AID OF THEIR
RESPECTIVE JURISDICTIONS AND AGREEABLE TO THE USAGES AND PRINCIPLES OF
LAW."  28 U.S.C. 1651(A). 

/3/  SEE TRIAL OF SAMUEL CHASE, VOLS.  1 AND 2 (1805, TAKEN IN
SHORTHAND BY SAMUEL H. SMITH AND THOMAS LLOYD). 

/4/  STATE PROCEDURES VARY.  THUS NEW YORK BY ITS CONSTITUTION
PROVIDES FOR THE REMOVAL OF JUDGES BY THE JUDICIARY COURT, MADE UP OF
JUDGES.  SEE FRIEDMAN V. STATE, 24 N.Y.2D 528, 249 N.E.2D 369. 

/5/  RESOLUTION I WAS SUSPENDED ON NOVEMBER 1, 1969, BY THE JUDICIAL
CONFERENCE PENDING FURTHER STUDY, THE ONLY RESIDUE PRESENTLY IN FORCE
BEING A REQUIREMENT THAT A JUDGE WHO IN ANY QUARTERLY PERIOD "RECEIVES
COMPENSATION FOR NON-JUDICIAL SERVICES IN A TOTAL AMOUNT EXCEEDING
$100" SHALL REPORT THE SAME TO A "RECEIVING OFFICER" NAMED BY THE CHIEF
JUSTICE AND ACTING FOR THE FEDERAL JUDGES.  IN MARCH 1970, THE JUDICIAL
CONFERENCE APPROVED PROCEDURES AND FORMS FOR JUDGES TO REPORT OUTSIDE
INCOME PURSUANT TO THE CONFERENCE RESOLUTION OF NOVEMBER 1, 1969.  THE
APPROVED FORM REQUIRES LISTING OF OUTSIDE INCOME RECEIVED BY THE JUDGE,
GIFTS RECEIVED BY THE JUDGE OR HIS IMMEDIATE FAMILY IN EXCESS OF $100,
ANY KNOWING PARTICIPATION IN CASES IN WHICH THE JUDGE OR A MEMBER OF
HIS IMMEDIATE FAMILY HAD A FINANCIAL INTEREST IN ANY OF THE NAMED
PARTIES, AND ALL "FIDUCIARY POSITIONS" HELD BY THE JUDGE, "SUCH AS
TRUSTEE OR EXECUTOR." 

/6/  COMMENTARIES ON EQUITY JURISPRUDENCE (2 VOLS., 1836);
COMMENTARIES ON EQUITY PLEADINGS (1838); COMMENTARIES ON THE CONFLICT
OF LAWS (1834); COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
(3 VOLS., 1833); COMMENTARIES ON THE LAW OF AGENCY (1839); COMMENTARIES
ON THE LAW OF BAILMENTS (1832); COMMENTARIES ON THE LAW OF BILLS OF
EXCHANGE (1843); COMMENTARIES ON THE LAW OF PARTNERSHIP (1841);
COMMENTARIES ON THE LAW OF PROMISSORY NOTES (1845); A FAMILIAR
EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES (1840); A SELECTION
OF PLEADINGS IN CIVIL ACTIONS (1805). 

/7/  JUSTICE CARDOZO:  THE GROWTH OF THE LAW (1931); LAW AND
LITERATURE AND OTHER ESSAYS AND ADDRESSES (1931); THE NATURE OF THE
JUDICIAL PROCESS (1921). 

JUDGE LEARNED HAND:  THE BILL OF RIGHTS (1958). 

JUDGE JEROME FRANK:  COURTS ON TRIAL-- MYTH AND REALITY IN AMERICAN
JUSTICE (1949); NOT GUILTY (1957); IF MEN WERE ANGELS (1942); FATE AND
FREEDOM (1945). 

/8/  CF. S. 1506, 91ST CONG., 1ST SESS., WHICH WOULD AMEND 28
U.S.C.C. 17, FIRST BY CREATING A COMMISSION ON JUDICIAL DISABILITIES
AND TENURE, COMPOSED OF FIVE FEDERAL JUDGES IN ACTIVE SERVICE; SECOND
GIVING IT POWER TO "UNDERTAKE AN INVESTIGATION OF THE OFFICIAL CONDUCT
OF ANY JUDGE OF THE UNITED STATES APPOINTED TO HOLD OFFICE UNDER
ARTICLE III OF THE CONSTITUTION TO DETERMINE WHETHER THE CONDUCT OF
SUCH JUDGE IS AND HAS BEEN CONSISTENT WITH THE GOOD BEHAVIOR REQUIRED
BY THAT ARTICLE;" AND THIRD GIVING IT AUTHORITY TO RECOMMEND TO THE
JUDICIAL CONFERENCE THAT HE BE REMOVED FROM OFFICE UNDER THE FOLLOWING
STANDARD:  "WILLFUL MISCONDUCT IN OFFICE OR WILLFUL AND PERSISTENT
FAILURE TO PERFORM HIS OFFICIAL DUTIES BY A JUDGE OF THE UNITED STATES
SHALL CONSTITUTE CONDUCT INCONSISTENT WITH THE GOOD BEHAVIOR REQUIRED
BY ARTICLE III OF THE CONSTITUTION AND SHALL BE CAUSE FOR THE REMOVAL
OF THAT JUDGE." 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

FULLY CONCURRING IN THE DISSENT OF MY BROTHER DOUGLAS IN THIS CASE,
I WISH TO ADD A FEW WORDS TO EMPHASIZE ONCE AGAIN /1/  THE GRAVITY OF
THE UNCONSTITUTIONAL WRONG THE COURT IN INFLICTING UPON UNITED STATES
DISTRICT JUDGE STEPHEN CHANDLER, AND, MORE IMPORTANT, ON OUR SYSTEM OF
GOVERNMENT AND THE CONSTITUTION ITSELF.  THE PREPARATION AND ADOPTION
OF THAT GREAT DOCUMENT WAS A TURNING POINT IN THE HISTORY OF THIS
COUNTRY AND OF THE WORLD.  OUR CONSTITUTION GAVE NEW HOPES AND DREAMS
FOR FREEDOM AND EQUAL JUSTICE TO CITIZENS OF THIS COUNTRY AND SIGNALED
TO THE SUFFERING AND OPPRESSED PEOPLE EVERYWHERE THAT GOVERNMENT COULD
BE HUMANE.  ONE OF THE MANY FACTORS WHICH GAVE BIRTH TO THESE NEW
DREAMS AND HOPES WAS OUR CONSTITUTIONAL PLAN FOR A MORE INDEPENDENT
JUDICIAL SYSTEM THAN HAD EVER BEFORE EXISTED.  JUDGES IN OUR SYSTEM
WERE TO HOLD THEIR OFFICES DURING "GOOD BEHAVIOUR," THEIR COMPENSATION
WAS NOT TO BE "DIMINISHED DURING THEIR CONTINUANCE IN OFFICE,"  /2/
AND THEY WERE TO BE REMOVED ONLY AFTER IMPEACHMENT AND TRIAL BY THE
UNITED STATES CONGRESS.  WHILE JUDGES, LIKE OTHER PEOPLE, CAN BE TRIED,
CONVICTED, AND PUNISHED FOR CRIMES, NO WORD, PHRASE, CLAUSE, SENTENCE,
OR EVEN THE CONSTITUTION TAKEN AS A WHOLE, GIVES ANY INDICATION THAT
ANY JUDGE WAS EVER TO BE PARTLY DISQUALIFIED OR WHOLLY REMOVED FROM
OFFICE EXCEPT BY THE ADMITTEDLY DIFFICULT METHOD OF IMPEACHMENT BY THE
HOUSE OF REPRESENTATIVES AND CONVICTION BY TWO-THIRDS OF THE SENATE. 
SUCH WAS THE WRITTEN GUARANTEE IN OUR CONSTITUTION OF THE INDEPENDENCE
OF THE JUDICIARY, AND SUCH HAS ALWAYS BEEN THE PROUD BOAST OF OUR
PEOPLE. 

I AM REGRETTABLY COMPELLED IN THIS CASE TO SAY THAT THE COURT TODAY,
IN MY JUDGMENT, BREAKS FAITH WITH THIS GRAND CONSTITUTIONAL PRINCIPLE. 
JUDGE CHANDLER, DULY APPOINTED, DULY CONFIRMED, AND NEVER IMPEACHED BY
THE CONGRESS, HAS BEEN BARRED FROM DOING HIS WORK BY OTHER JUDGES.  THE
REAL FACTS OF THIS CASE CANNOT BE OBSCURED, NOR THE EFFECT OF THE
JUDICIAL COUNCIL'S DECISIONS DEFENDED, BY ANY TECHNICAL, LEGALISTIC
EFFORT TO SHOW THAT ONE OR THE OTHER OF THE COUNCIL'S ORDERS ISSUED
OVER THE YEARS IS "VALID."  THIS CASE MUST BE VIEWED FOR WHAT IT IS-- A
LONG HISTORY OF HARASSMENT OF JUDGE CHANDLER BY OTHER JUDGES WHO
SOMEHOW FEEL HE IS "UNFIT" TO HOLD OFFICE.  THEIR EFFORTS HAVE BEEN
GOING ON FOR AT LEAST FIVE YEARS AND STILL JUDGE CHANDLER FINDS NO
RELIEF.  WHAT IS INVOLVED HERE IS SIMPLY A BLATANT EFFORT ON THE PART
OF THE COUNCIL THROUGH CONCERTED ACTION TO MAKE JUDGE CHANDLER A
"SECOND-CLASS JUDGE," DEPRIVING HIM OF THE FULL POWER OF HIS OFFICE AND
THE RIGHT TO SHARE EQUALLY WITH ALL OTHER FEDERAL JUDGES IN THE
PRIVILEGES AND RESPONSIBILITIES OF THE FEDERAL JUDICIARY.  I AM UNABLE
TO FIND IN OUR CONSTITUTION OR IN ANY STATUTE ANY AUTHORITY WHATEVER
FOR JUDGES TO ARROGATE TO THEMSELVES AND TO EXERCISE SUCH POWERS. 
JUDGE CHANDLER, LIKE EVERY OTHER FEDERAL JUDGE INCLUDING THE JUSTICES
OF THIS COURT, IS SUBJECT TO REMOVAL FROM OFFICE ONLY BY THE
CONSTITUTIONALLY PRESCRIBED MODE OF IMPEACHMENT. 

THE WISE AUTHORS OF OUR CONSTITUTION PROVIDED FOR JUDICIAL
INDEPENDENCE BECAUSE THEY WERE FAMILIAR WITH HISTORY; THEY KNEW THAT
JUDGES OF THE PAST-- GOOD, PATRIOTIC JUDGES-- HAD OCCASIONALLY LOST NOT
ONLY THEIR OFFICES BUT HAD ALSO SOMETIMES LOST THEIR FREEDOM AND THEIR
HEADS BECAUSE OF THE ACTIONS AND DECREES OF OTHER JUDGES.  THEY WERE
DETERMINED THAT NO SUCH THINGS SHOULD HAPPEN HERE.  BUT IT APPEARS THAT
THE LANGUAGE THEY USED AND THE PROTECTIONS THEY THOUGHT THEY HAD
CREATED ARE NOT SUFFICIENT TO PROTECT OUR JUDGES FROM THE CONTRIVED
INTRICACIES USED BY THE JUDGES OF THE TENTH CIRCUIT AND THIS COURT TO
UPHOLD WHAT HAS HAPPENED TO JUDGE CHANDLER IN THIS CASE. 

I FEAR THAT UNLESS THE ACTIONS TAKEN BY THE JUDICIAL COUNCIL IN THIS
CASE ARE IN SOME WAY REPUDIATED, THE HOPE FOR AN INDEPENDENT JUDICIARY
WILL PROVE TO HAVE BEEN NO MORE THAN AN EVANESCENT DREAM. 

/1/  SEE CHANDLER V. JUDICIAL COUNCIL, 382 U.S. 1003, 1004 (1966)
(DISSENTING OPINION). 

/2/  ART. III, SEC. 1. 

THOMAS J. KENAN ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

CHARLES ALAN WRIGHT ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 

CARL L. SHIPLEY ARGUED THE CAUSE AND FILED BRIEFS AS AMICUS CURIAE
IN SUPPORT OF PETITIONER. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE AND FILED A BRIEF FOR
THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF RESPONDENT. 
..END :



















ADICKES V. KRESS & CO., 398 U.S. 144 


       ADICKES V. S. H. KRESS & CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT. 

        NO. 79.  ARGUED NOVEMBER 12, 1969-- DECIDED JUNE 1, 1970. 


PETITIONER IS A WHITE SCHOOL TEACHER WHO WAS REFUSED SERVICE IN
RESPONDENT'S LUNCHROOM WHEN SHE WAS ACCOMPANIED BY SIX NEGRO STUDENTS,
AND WHO WAS ARRESTED FOR VAGRANCY BY THE HATTIESBURG, MISSISSIPPI,
POLICE WHEN SHE LEFT RESPONDENT'S PREMISES.  SHE FILED A COMPLAINT IN
THE FEDERAL DISTRICT COURT TO RECOVER DAMAGES ALLEGING DEPRIVATION OF
HER RIGHT UNDER THE EQUAL PROTECTION CLAUSE NOT TO BE DISCRIMINATED
AGAINST ON THE BASIS OF RACE.  THE COMPLAINT HAD TWO COUNTS, EACH BASED
ON 42 U.S.C. 1983:  (1) THAT SHE HAD BEEN REFUSED SERVICE BECAUSE SHE
WAS A "CAUCASIAN IN THE COMPANY OF NEGROES" (UNDER WHICH SHE SOUGHT TO
PROVE THAT THE REFUSAL TO SERVE HER WAS PURSUANT TO A "CUSTOM OF THE
COMMUNITY TO SEGREGATE RACES IN PUBLIC EATING PLACES") AND (2) THAT THE
REFUSAL OF SERVICE AND THE ARREST WERE THE PRODUCT OF A CONSPIRACY
BETWEEN RESPONDENT AND THE POLICE (UNDER WHICH SHE ALLEGED THAT THE
POLICEMAN WHO ARRESTED HER WAS IN THE STORE AT THE TIME OF THE REFUSAL
OF SERVICE).  THE DISTRICT COURT RULED THAT TO RECOVER UNDER THE FIRST
COUNT PETITIONER WOULD HAVE TO PROVE A SPECIFIC "CUSTOM OF REFUSING
SERVICE TO WHITES WHO WERE IN THE COMPANY OF NEGROES" THAT WAS
"ENFORCED BY THE STATE" UNDER ITS CRIMINAL TRESPASS STATUTE.  THE COURT
DIRECTED A VERDICT FOR RESPONDENT ON THIS COUNT BECAUSE PETITIONER
FAILED TO PROVE OTHER INSTANCES OF WHITES HAVING BEEN REFUSED SERVICE
WHILE IN COMPANY OF NEGROES IN HATTIESBURG.  THE COURT OF APPEALS
AFFIRMED, HOLDING THAT SEC. 1983 REQUIRES THE DISCRIMINATORY CUSTOM BE
PROVED TO EXIST IN THE LOCALE WHERE THE DISCRIMINATION TOOK PLACE AND
IN THE STATE GENERALLY, AND THAT PETITIONER'S PROOF WAS DEFICIENT ON
BOTH POINTS.  THE SECOND COUNT WAS DISMISSED BEFORE TRIAL BY THE
DISTRICT COURT ON A MOTION FOR SUMMARY JUDGMENT SINCE PETITIONER
"FAILED TO ALLEGE ANY FACTS FROM WHICH A CONSPIRACY MIGHT BE
INFERRED."  THE COURT OF APPEALS AFFIRMED THIS DETERMINATION.  HELD: 

1.  THE DISTRICT COURT ON THE BASIS OF THIS RECORD ERRED IN GRANTING
SUMMARY JUDGMENT ON THE CONSPIRACY COUNT.  PP. 149-161. 

(A) THE INVONVEMENT OF A POLICEMAN, A STATE OFFICIAL, WHETHER OR NOT
HIS ACTIONS WERE LAWFUL OR AUTHORIZED, IN THE ALLEGED CONSPIRACY WOULD
PLAINLY PROVIDE THE STATE ACTION NEEDED TO SHOW A DIRECT VIOLATION OF
PETITIONER'S FOURTEENTH AMENDMENT RIGHTS ENTITLING HER TO RELIEF UNDER
SEC. 1983, AND PRIVATE PERSONS INVOLVED IN SUCH A CONSPIRACY ARE ACTING
"UNDER COLOR" OF LAW AND CAN BE LIABLE UNDER SEC. 1983.  PP. 150-152. 

(B) RESPONDENT DID NOT CARRY OUT ITS BURDEN, AS THE PARTY MOVING FOR
SUMMARY JUDGMENT, OF SHOWING THE ABSENCE OF A GENUINE ISSUE AS TO ANY
MATERIAL FACT, AS IT DID NOT FORECLOSE THE POSSIBILITY THAT THERE WAS A
POLICEMAN IN THE STORE WHILE THE PETITIONER WAS AWAITING SERVICE (FROM
WHICH THE JURY COULD INFER AN UNDERSTANDING BETWEEN THE OFFICER AND AN
EMPLOYEE OF RESPONDENT THAT PETITIONER NOT BE SERVED), AND ITS FAILURE
TO MEET THAT BURDEN REQUIRES REVERSAL.  PP. 153-159. 

(C) BECAUSE RESPONDENT FAILED TO MEET ITS INITIAL BURDEN AS THE
PARTY MOVING FOR SUMMARY JUDGMENT, PETITIONER WAS NOT REQUIRED TO COME
FORWARD WITH SUITABLE OPPOSING AFFIDAVITS UNDER FED. RULE CIV. PROC.
56(E).  PP. 159-161. 

2.  PETITIONER WILL HAVE ESTABLISHED A CLAIM UNDER SEC. 1983 FOR
VIOLATION OF HER EQUAL PROTECTION RIGHTS IF SHE PROVES THAT SHE WAS
REFUSED SERVICE BY RESPONDENT BECAUSE OF A STATE-ENFORCED CUSTOM
REQUIRING RACIAL SEGREGATION IN HATTIESBURG RESTAURANTS.  PP. 161-174. 

(A) BASED UPON THE LANGUAGE OF THE STATUTE, LEGISLATIVE HISTORY,
AND JUDICIAL DECISIONS, THE WORDS "UNDER COLOR OF A . . . CUSTOM OR
USAGE, OF (A) STATE," IN SEC. 1983, MEAN THAT THE "CUSTOM OR USAGE"
MUST HAVE THE FORCE OF LAW BY VIRTUE OF THE PERSISTENT PRACTICES OF
STATE OFFICIALS.  PP. 162-169. 

(B) PETITIONER WOULD HAVE SHOWN AN ABRIDGMENT OF HER CONSTITUTIONAL
RIGHT OF EQUAL PROTECTION IF SHE PROVED THAT RESPONDENT REFUSED HER
SERVICE BECAUSE OF A STATE-ENFORCED CUSTOM OF RACIAL SEGREGATION IN
PUBLIC RESTAURANTS.  PP. 169-171. 

(C) THE DISTRICT COURT ERRED IN ITS IMPLICIT ASSUMPTION THAT A
CUSTOM CAN HAVE THE FORCE OF LAW ONLY IF IT IS ENFORCED BY A STATE
STATUTE.  PP. 171-172. 

(D) THE DISTRICT COURT'S RULING THAT PROVING A "CUSTOM" IN THIS CASE
REQUIRED DEMONSTRATING A SPECIFIC PRACTICE OF NOT SERVING WHITE PERSONS
IN THE COMPANY OF NEGROES IN PUBLIC RESTAURANTS WAS TOO NARROW, AS THE
RELEVANT INQUIRY IS WHETHER THERE WAS A LONGSTANDING AND STILL
PREVAILING STATE-ENFORCED CUSTOM OF SEGREGATING THE RACES IN PUBLIC
EATING PLACES.  P. 173. 

(E) THE COURTS BELOW ERRED IN SUGGESTING THAT THE CUSTOM MUST EXIST
THROUGHOUT THE STATE, AS A CUSTOM WITH THE FORCE OF LAW IN A POLITICAL
SUBDIVISION CAN OFFEND THE FOURTEENTH AMENDMENT EVEN THOUGH IT LACKS
STATE-WIDE APPLICATION.  P. 173. 

409 F.2D 121, REVERSED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER, SANDRA ADICKES, A WHITE SCHOOL TEACHER FROM NEW YORK,
BROUGHT THIS SUIT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AGAINST RESPONDENT S.H. KRESS & CO. ("KRESS") TO
RECOVER DAMAGES UNDER 42 U.S.C. 1983 /1/  FOR AN ALLEGED VIOLATION OF
HER CONSTITUTIONAL RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  THE SUIT ARISES OUT OF KRESS' REFUSAL TO SERVE
LUNCH TO MISS ADICKES AT ITS RESTAURANT FACILITIES IN ITS HATTIESBURG,
MISSISSIPPI, STORE ON AUGUST 14, 1964, AND MISS ADICKES' SUBSEQUENT
ARREST UPON HER DEPARTURE FROM THE STORE BY THE HATTIESBURG POLICE ON A
CHARGE OF VAGRANCY.  AT THE TIME OF BOTH THE REFUSAL TO SERVE AND THE
ARREST, MISS ADICKES WAS WITH SIX YOUNG PEOPLE, ALL NEGROES, WHO WERE
HER STUDENTS IN A MISSISSIPPI "FREEDOM SCHOOL" WHERE SHE WAS TEACHING
THAT SUMMER.  UNLIKE MISS ADICKES, THE STUDENTS WERE OFFERED SERVICE,
AND WERE NOT ARRESTED. 

PETITIONER'S COMPLAINT HAD TWO COUNTS, /2/  EACH BOTTOMED ON SEC.
1983, AND EACH ALLEGING THAT KRESS HAD DEPRIVED HER OF THE RIGHT UNDER
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT NOT TO BE
DISCRIMINATED AGAINST ON THE BASIS OF RACE.  THE FIRST COUNT CHARGED
THAT MISS ADICKES HAD BEEN REFUSED SERVICE BY KRESS BECAUSE SHE WAS A
"CAUCASIAN IN THE COMPANY OF NEGROES."  PETITIONER SOUGHT, INTER ALIA,
TO PROVE THAT THE REFUSAL TO SERVE HER WAS PURSUANT TO A "CUSTOM OF THE
COMMUNITY TO SEGREGATE THE RACES IN PUBLIC EATING PLACES."  HOWEVER, IN
A PRETRIAL DECISION, 252 F.SUPP.  140 (1966), THE DISTRICT COURT RULED
THAT TO RECOVER UNDER THIS COUNT, MISS ADICKES WOULD HAVE TO PROVE THAT
AT THE TIME SHE WAS REFUSED SERVICE, THERE WAS A SPECIFIC "CUSTOM . . .
OF REFUSING SERVICE TO WHITES IN THE COMPANY OF NEGROES" AND THAT THIS
CUSTOM WAS "ENFORCED BY THE STATE" UNDER MISSISSIPPI'S CRIMINAL
TRESPASS STATUTE.  /3/  BECAUSE PETITIONER WAS UNABLE TO PROVE AT THE
TRIAL THAT THERE WERE OTHER INSTANCES IN HATTIESBURG OF A WHITE PERSON
HAVING BEEN REFUSED SERVICE WHILE IN THE COMPANY OF NEGROES, THE
DISTRICT COURT DIRECTED A VERDICT IN FAVOR OF RESPONDENT.  A DIVIDED
PANEL OF THE COURT OF APPEALS AFFIRMED ON THIS GROUND, ALSO HOLDING
THAT SEC. 1983 "REQUIRES THAT THE DISCRIMINATORY CUSTOM OR USAGE BE
PROVED TO EXIST IN THE LOCALE WHERE THE DISCRIMINATION TOOK PLACE, AND
IN THE STATE GENERALLY," AND THAT PETITIONER'S "PROOF ON BOTH POINTS
WAS DEFICIENT," 409 F.2D 121, 124 (1968). 

THE SECOND COUNT OF HER COMPLAINT, ALLEGING THAT BOTH THE REFUSAL OF
SERVICE AND HER SUBSEQUENT ARREST WERE THE PRODUCT OF A CONSPIRACY
BETWEEN KRESS AND THE HATTIESBURG POLICE, WAS DISMISSED BEFORE TRIAL ON
A MOTION FOR SUMMARY JUDGMENT.  THE DISTRICT COURT RULED THAT
PETITIONER HAD "FAILED TO ALLEGE ANY FACTS FROM WHICH A CONSPIRACY
MIGHT BE INFERRED."  252 F.SUPP.,AT 144.  THIS DETERMINATION WAS
UNANIMOUSLY AFFIRMED BY THE COURT OF APPEALS, 409 F.2D, AT 126-127. 

MISS ADICKES, IN SEEKING REVIEW HERE, CLAIMS THAT THE DISTRICT COURT
ERRED BOTH IN DIRECTING A VERDICT ON THE SUBSTANTIVE COUNT, AND IN
GRANTING SUMMARY JUDGMENT ON THE CONSPIRACY COUNT.  LAST TERM WE
GRANTED CERTIORARI, 394 U.S. 1011 (1969), AND WE NOW REVERSE AND REMAND
FOR FURTHER PROCEEDINGS ON EACH OF THE TWO COUNTS. 

AS EXPLAINED IN PART I, BECAUSE THE RESPONDENT FAILED TO SHOW THE
ABSENCE OF ANY DISPUTED MATERIAL FACT, WE THINK THE DISTRICT COURT
ERRED IN GRANTING SUMMARY JUDGMENT.  WITH RESPECT TO THE SUBSTANTIVE
COUNT, FOR REASONS EXPLAINED IN PART II, WE THINK PETITIONER WILL HAVE
MADE OUT A CLAIM UNDER SEC. 1983 FOR VIOLATION OF HER EQUAL PROTECTION
RIGHTS IF SHE PROVES THAT SHE WAS REFUSED SERVICE BY KRESS BECAUSE OF A
STATE-ENFORCED CUSTOM REQUIRING RACIAL SEGREGATION IN HATTIESBURG
RESTAURANTS.  WE THINK THE COURTS BELOW ERRED (1) IN ASSUMING THAT THE
ONLY PROOF RELEVANT TO SHOWING THAT A CUSTOM WAS STATE-ENFORCED RELATED
TO THE MISSISSIPPI CRIMINAL TRESPASS STATUTE; (2) IN DEFINING THE
RELEVANT STATE-ENFORCED CUSTOM AS REQUIRING PROOF OF A PRACTICE BOTH IN
HATTIESBURG AND THROUGHOUT MISSISSIPPI, OF REFUSING TO SERVE WHITE
PERSONS IN THE COMPANY OF NEGROES RATHER THAN SIMPLY PROOF OF STATE
ENFORCED SEGREGATION OF THE RACES IN HATTIESBURG RESTAURANTS. 

        I 

BRIEFLY STATED, THE CONSPIRACY COUNT OF PETITIONER'S COMPLAINT MADE
THE FOLLOWING ALLEGATIONS:  WHILE SERVING AS A VOLUNTEER TEACHER AT A
"FREEDOM SCHOOL" FOR NEGRO CHILDREN IN HATTIESBURG, MISSISSIPPI,
PETITIONER WENT WITH SIX OF HER STUDENTS TO THE HATTIESBURG PUBLIC
LIBRARY AT ABOUT NOON ON AUGUST 14, 1964.  THE LIBRARIAN REFUSED TO
ALLOW THE NEGRO STUDENTS TO USE THE LIBRARY, AND ASKED THEM TO LEAVE. 
BECAUSE THEY DID NOT LEAVE, THE LIBRARIAN CALLED THE HATTIESBURG CHIEF
OF POLICE WHO TOLD PETITIONER AND HER STUDENTS THAT THE LIBRARY WAS
CLOSED, AND ORDERED THEM TO LEAVE.  FROM THE LIBRARY, PETITIONER AND
THE STUDENTS PROCEEDED TO RESPONDENT'S STORE WHERE THEY WISHED TO EAT
LUNCH.  ACCORDING TO THE COMPLAINT, AFTER THE GROUP SAT DOWN TO EAT, A
POLICEMAN CAME INTO THE STORE "AND OBSERVED (MISS ADICKES) IN THE
COMPANY OF THE NEGRO STUDENTS."  A WAITRESS THEN CAME TO THE BOOTH
WHERE PETITIONER WAS SITTING, TOOK THE ORDERS OF THE NEGRO STUDENTS,
BUT REFUSED TO SERVE PETITIONER BECAUSE SHE WAS A WHITE PERSON "IN THE
COMPANY OF NEGROES."  THE COMPLAINT GOES ON TO ALLEGE THAT AFTER THIS
REFUSAL OF SERVICE, PETITIONER AND HER STUDENTS LEFT THE KRESS STORE. 
WHEN THE GROUP REACHED THE SIDEWALK OUTSIDE THE STORE, "THE OFFICER OF
THE LAW WHO HAD PREVIOUSLY ENTERED (THE) STORE" ARRESTED PETITIONER ON
A GROUNDLESS CHARGE OF VAGRANCY AND TOOK HER INTO CUSTODY. 

ON THE BASIS OF THESE UNDERLYING FACTS PETITIONER ALLEGED THAT KRESS
AND THE HATTIESBURG POLICE HAD CONSPIRED (1) "TO DEPRIVE (HER) OF HER
RIGHT TO ENJOY EQUAL TREATMENT AND SERVICE IN A PLACE OF PUBLIC
ACCOMMODATION"; AND (2) TO CAUSE HER ARREST "ON THE FALSE CHARGE OF
VAGRANCY." 

        A. CONSPIRACIES BETWEEN PUBLIC OFFICIALS AND PRIVATE

           PERSONS-- GOVERNING PRINCIPLES 

THE TERMS OF SEC. 1983 MAKE PLAIN TWO ELEMENTS THAT ARE NECESSARY
FOR RECOVERY.  FIRST, THE PLAINTIFF MUST PROVE THAT THE DEFENDANT HAS
DEPRIVED HIM OF A RIGHT SECURED BY THE "CONSTITUTION AND LAWS" OF THE
UNITED STATES.  SECOND, THE PLAINTIFF MUST SHOW THAT THE DEFENDANT
DEPRIVED HIM OF THIS CONSTITUTIONAL RIGHT "UNDER COLOR OF ANY STATUTE,
ORDINANCE, REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY." 
THIS SECOND ELEMENT REQUIRES THAT THE PLAINTIFF SHOW THAT THE DEFENDANT
ACTED "UNDER COLOR OF LAW."  /4/ 

AS NOTED EARLIER WE READ BOTH COUNTS OF PETITIONER'S COMPLAINT TO
ALLEGE DISCRIMINATION BASED ON RACE IN VIOLATION OF PETITIONER'S EQUAL
PROTECTION RIGHTS.  /5/  FEW PRINCIPLES OF LAW ARE MORE FIRMLY STITCHED
INTO OUR CONSTITUTIONAL FABRIC THAN THE PROPOSITION THAT A STATE MUST
NOT DISCRIMINATE AGAINST A PERSON BECAUSE OF HIS RACE OR THE RACE OF
HIS COMPANIONS, OR IN ANY WAY ACT TO COMPEL OR ENCOURAGE RACIAL
SEGREGATION.  /6/  ALTHOUGH THIS IS A LAWSUIT AGAINST A PRIVATE PARTY,
NOT THE STATE OR ONE OF ITS OFFICIALS, OUR CASES MAKE CLEAR THAT
PETITIONER WILL HAVE MADE OUT A VIOLATION OF HER FOURTEENTH AMENDMENT
RIGHTS AND WILL BE ENTITLED TO RELIEF UNDER SEC. 1983 IF SHE CAN PROVE
THAT A KRESS EMPLOYEE, IN THE COURSE OF EMPLOYMENT, AND A HATTIESBURG
POLICEMAN SOMEHOW REACHED AN UNDERSTANDING TO DENY MISS ADICKES SERVICE
IN THE KRESS STORE, OR TO CAUSE HER SUBSEQUENT ARREST BECAUSE SHE WAS A
WHITE PERSON IN THE COMPANY OF NEGROES. 

THE INVOLVEMENT OF A STATE OFFICIAL IN SUCH A CONSPIRACY PLAINLY
PROVIDES THE STATE ACTION ESSENTIAL TO SHOW A DIRECT VIOLATION OF
PETITIONER'S FOURTEENTH AMENDMENT EQUAL PROTECTION RIGHTS, WHETHER OR
NOT THE ACTIONS OF THE POLICE WERE OFFICIALLY AUTHORIZED, OR LAWFUL;
MONROE V. PAPE, 365 U.S. 167 (1961); SEE UNITED STATES V. CLASSIC, 313
U.S. 299, 326 (1941); SCREWS V. UNITED STATES, 325 U.S. 91, 107-111
(1945); WILLIAMS V. UNITED STATES, 341 U.S. 97, 99-100 (1951). 
MOREOVER, A PRIVATE PARTY INVOLVED IN SUCH A CONSPIRACY, EVEN THOUGH
NOT AN OFFICIAL OF THE STATE, CAN BE LIABLE UNDER SEC. 1983.  "PRIVATE
PERSONS, JOINTLY ENGAGED WITH STATE OFFICIALS IN THE PROHIBITED ACTION,
ARE ACTING 'UNDER COLOR' OF LAW FOR PURPOSES OF THE STATUTE.  TO ACT
'UNDER COLOR' OF LAW DOES NOT REQUIRE THAT THE ACCUSED BE AN OFFICER OF
THE STATE.  IT IS ENOUGH THAT HE IS A WILLFUL PARTICIPANT IN JOINT
ACTIVITY WITH THE STATE OR ITS AGENTS," UNITED STATES V. PRICE, 383
U.S. 787, 794 (1966).  /7/

        B. SUMMARY JUDGMENT 

WE NOW PROCEED TO CONSIDER WHETHER THE DISTRICT COURT ERRED IN
GRANTING SUMMARY JUDGMENT ON THE CONSPIRACY COUNT.  IN GRANTING
RESPONDENT'S MOTION, THE DISTRICT COURT SIMPLY STATED THAT THERE WAS
"NO EVIDENCE IN THE COMPLAINT OR IN THE AFFIDAVITS AND OTHER PAPERS
FROM WHICH A 'REASONABLY-MINDED PERSON' MIGHT DRAWN AN INFERENCE OF
CONSPIRACY," 252 F.SUPP.,AT 144, AFF'D, 409 F.2D,AT 126-127.  OUR OWN
SCRUTINY OF THE FACTUAL ALLEGATIONS OF PETITIONER'S COMPLAINT, AS WELL
AS THE MATERIAL FOUND IN THE AFFIDAVITS AND DEPOSITIONS PRESENTED BY
KRESS TO THE DISTRICT COURT, HOWEVER, CONVINCES US THAT SUMMARY
JUDGMENT WAS IMPROPER HERE, FOR WE THINK RESPONDENT FAILED TO CARRY ITS
BURDEN OF SHOWING THE ABSENCE OF ANY GENUINE ISSUE OF FACT.  BEFORE
EXPLAINING WHY THIS IS SO, IT IS USEFUL TO STATE THE FACTUAL ARGUMENTS,
MADE BY THE PARTIES CONCERNING SUMMARY JUDGMENT, AND THE REASONING OF
THE COURTS BELOW. 

IN MOVING FOR SUMMARY JUDGMENT, KRESS ARGUED THAT "UNCONTESTED
FACTS" ESTABLISHED THAT NO CONSPIRACY EXISTED BETWEEN ANY KRESS
EMPLOYEE AND THE POLICE.  TO SUPPORT THIS ASSERTION, KRESS POINTED
FIRST TO THE STATEMENTS IN THE DEPOSITION OF THE STORE MANAGER (MR.
POWELL) THAT (A) HE HAD NOT COMMUNICATED WITH THE POLICE, /8/  AND THAT
(B) HE HAD, BY A PREARRANGED TACIT SIGNAL, /9/  ORDERED THE FOOD
COUNTER SUPERVISOR TO SEE THAT MISS ADICKES WAS REFUSED SERVICE ONLY
BECAUSE HE WAS FEARFUL OF A RIOT IN THE STORE BY CUSTOMERS ANGERED AT
SEEING A "MIXED GROUP" OF WHITES AND BLACKS EATING TOGETHER.  /10/
KRESS ALSO RELIED ON AFFIDAVITS FROM THE HATTIESBURG CHIEF OF POLICE,
/11/  AND THE TWO ARRESTING OFFICERS, /12/  TO THE EFFECT THAT STORE
MANAGER POWELL HAD NOT REQUESTED THAT PETITIONER BE ARRESTED.  FINALLY,
KRESS POINTED TO THE STATEMENTS IN PETITIONER'S OWN DEPOSITION THAT SHE
HAD NO KNOWLEDGE OF ANY COMMUNICATION BETWEEN ANY KRESS EMPLOYEE AND
ANY MEMBER OF THE HATTIESBURG POLICE, AND WAS RELYING ON CIRCUMSTANTIAL
EVIDENCE TO SUPPORT HER CONTENTION THAT THERE WAS AN ARRANGEMENT
BETWEEN KRESS AND THE POLICE. 

PETITIONER, IN OPPOSING SUMMARY JUDGMENT, POINTED OUT THAT
RESPONDENT HAD FAILED IN ITS MOVING PAPERS TO DISPUTE THE ALLEGATION IN
PETITIONER'S COMPLAINT, A STATEMENT AT HER DEPOSITION, /13/  AND AN
UNSWORN STATEMENT BY A KRESS EMPLOYEE, /14/  ALL TO THE EFFECT THAT
THERE WAS A POLICEMAN IN THE STORE AT THE TIME OF THE REFUSAL TO SERVE
HER, AND THAT THIS WAS THE POLICEMAN WHO SUBSEQUENTLY ARRESTED HER. 
PETITIONER ARGUED THAT ALTHOUGH SHE HAD NO KNOWLEDGE OF AN AGREEMENT
BETWEEN KRESS AND THE POLICE, THE SEQUENCE OF EVENTS CREATED A
SUBSTANTIAL ENOUGHT POSSIBILITY OF A CONSPIRACY TO ALLOW HER TO PROCEED
TO TRIAL, ESPECIALLY GIVEN THE FACT THAT THE NON-CIRCUMSTANTIAL
EVIDENCE OF THE CONSPIRACY COULD ONLY COME FROM ADVERSE WITNESSES. 
FURTHER, SHE SUBMITTED AN AFFIDAVIT SPECIFICALLY DISPUTING THE
MANAGER'S ASSERTION THAT THE SITUATION IN THE STORE AT THE TIME OF THE
REFUSAL WAS "EXPLOSIVE," THUS CREATING AN ISSUE OF FACT AS TO WHAT HIS
MOTIVES MIGHT HAVE BEEN IN ORDERING THE REFUSAL OF SERVICE. 

WE THINK THAT ON THE BASIS OF THIS RECORD, IT WAS ERROR TO GRANT
SUMMARY JUDGMENT.  AS THE MOVING PARTY, RESPONDENT HAD THE BURDEN OF
SHOWING THE ABSENCE OF A GENUINE ISSUE AS TO ANY MATERIAL FACT, AND FOR
THESE PURPOSES THE MATERIAL IT LODGED MUST BE VIEWED IN THE LIGHT MOST
FAVORABLE TO THE OPPOSING PARTY.  /15/  RESPONDENT HERE DID NOT CARRY
ITS BURDEN BECAUSE OF ITS FAILURE TO FORECLOSE THE POSSIBILITY THAT
THERE WAS A POLICEMAN IN THE KRESS STORE WHILE PETITIONER WAS AWAITING
SERVICE, AND THAT THIS POLICEMAN REACHED AN UNDERSTANDING WITH SOME
KRESS EMPLOYEE THAT PETITIONER NOT BE SERVED. 

IT IS TRUE THAT MR. POWELL, THE STORA MANAGER, CLAIMED IN HIS
DEPOSITION THAT HE HAD NOT SEEN OR COMMUNICATED WITH A POLICEMAN PRIOR
TO HIS TACIT SIGNAL TO MISS BAGGETT, THE SUPERVISOR OF THE FOOD
COUNTER.  BUT RESPONDENT DID NOT SUBMIT ANY AFFIDAVITS FROM MISS
BAGGETT, /16/  OR FROM MISS FREEMAN, /17/  THE WAITRESS WHO ACTUALLY
REFUSED PETITIONER SERVICE, EITHER OF WHOM MIGHT WELL HAVE SEEN AND
COMMUNICATED WITH A POLICEMAN IN THE STORE.  FURTHER, WE FIND IT
PARTICULARLY NOTEWORTHY THAT THE TWO OFFICERS INVOLVED IN THE ARREST
EACH FAILED IN HIS AFFIDAVIT TO FORECLOSE THE POSSIBILITY (1) THAT HE
WAS IN THE STORE WHILE PETITIONER WAS THERE; AND (2) THAT, UPON SEEING
PETITIONER WITH NEGROES, HE COMMUNICATED HIS DISAPPROVAL TO A KRESS
EMPLOYEE, THEREBY INFLUENCING THE DECISION NOT TO SERVE PETITIONER. 

GIVEN THESE UNEXPLAINED GAPS IN THE MATERIALS SUBMITTED BY
RESPONDENT, WE CONCLUDE THAT RESPONDENT FAILED TO FULFILL ITS INITIAL
BURDEN OF DEMONSTRATING WHAT IS A CRITICAL ELEMENT IN THIS ASPECT OF
THE CASE-- THAT THERE WAS NO POLICEMAN IN THE STORE.  IF A POLICEMAN
WERE PRESENT, WE THINK IT WOULD BE OPEN TO A JURY, IN LIGHT OF THE
SEQUENCE THAT FOLLOWED, TO INFER FROM THE CIRCUMSTANCES THAT THE
POLICEMAN AND A KRESS EMPLOYEE HAD A "MEETING OF THE MINDS" AND THUS
REACHED AN UNDERSTANDING THAT PETITIONER SHOULD BE REFUSED SERVICE. 
BECAUSE "(ON SUMMARY JUDGMENT THE INFERENCES TO BE DRAWN FROM THE
UNDERLYING FACTS CONTAINED IN (THE MOVING PARTY'S) MATERIALS MUST BE
VIEWED IN THE LIGHT MOST FAVORABLE TO THE PARTY OPPOSING THE MOTION,"
UNITED STATES V. DIEBOLD, INC., 369 U.S. 654, 655 (1962), WE THINK
RESPONDENT'S FAILURE TO SHOW THERE WAS NO POLICEMAN IN THE STORE
REQUIRES REVERSAL.     POINTING TO RULE 56(E), AS AMENDED IN 1963, /18/
RESPONDENT ARGUES THAT IT WAS INCUMBENT ON PETITIONER TO COME FORWARD
WITH AN AFFIDAVIT PROPERLY ASSERTING THE PRESENCE OF THE POLICEMAN IN
THE STORE, IF SHE WERE TO RELY ON THAT FACT TO AVOID SUMMARY JUDGMENT. 
RESPONDENT NOTES IN THIS REGARD THAT NONE OF THE MATERIALS UPON WHICH
PETITIONER RELIED MET THE REQUIREMENTS OF RULE 56(E).  /19/ 

THIS ARGUMENT DOES NOT WITHSTAND SCRUTINY, HOWEVER, FOR BOTH THE
COMMENTARY ON AND BACKGROUND OF THE 1963 AMENDMENT CONCLUSIVELY SHOW
THAT IT WAS NOT INTENDED TO MODIFY THE BURDEN OF THE MOVING PARTY UNDER
RULE 56(C) TO SHOW INITIALLY THE ABSENCE OF A GENUINE ISSUE CONCERNING
ANY MATERIAL FACT.  /20/  THE ADVISORY COMMITTEE NOTE ON THE AMENDMENT
STATES THAT THE CHANGES WERE NOT DESIGNED TO "AFFECT THE ORDINARY
STANDARDS APPLICABLE TO THE SUMMARY JUDGMENT."  AND, IN A COMMENT
DIRECTED SPECIFICALLY TO A CONTENTION LIKE RESPONDENT'S, THE COMMITTEE
STATED THAT "(WHERE THE EVIDENTIARY MATTER IN SUPPORT OF THE MOTION
DOES NOT ESTABLISH THE ABSENCE OF A GENUINE ISSUE, SUMMARY JUDGMENT
MUST BE DENIED EVEN IF NO OPPOSING EVIDENTIARY MATTER IS PRESENTED." 
/21/  BECAUSE RESPONDENT DID NOT MEET ITS INITIAL BURDEN OF
ESTABLISHING THE ABSENCE OF A POLICEMAN IN THE STORE, PETITIONER HERE
WAS NOT REQUIRED TO COME FORWARD WITH SUITABLE OPPOSING AFFIDAVITS. 
/22/ 

IF RESPONDENT HAD MET ITS INITIAL BURDEN BY, FOR EXAMPLE, SUBMITTING
AFFIDAVITS FROM THE POLICEMEN DENYING THEIR PRESENCE IN THE STORE AT
THE TIME IN QUESTION, RULE 56(E) WOULD THEN HAVE REQUIRED PETITIONER TO
HAVE DONE MORE THAN SIMPLY RELY ON THE CONTRARY ALLEGATION IN HER
COMPLAINT.  TO HAVE AVOIDED CONCEDING THIS FACT FOR PURPOSES OF SUMMARY
JUDGMENT, PETITIONER WOULD HAVE HAD TO COME FORWARD WITH EITHER (1) THE
AFFIDAVIT OF SOMEONE WHO SAW THE POLICEMAN IN THE STORE OR (2) AN
AFFIDAVIT UNDER RULE 56(F) EXPLAINING WHY AT THAT TIME IT WAS
IMPRACTICAL TO DO SO.  EVEN THOUGH NOT ESSENTIAL HERE TO DEFEAT
RESPONDENT'S MOTION, THE SUBMISSION OF SUCH AN AFFIDAVIT WOULD HAVE
BEEN THE PREFERABLE COURSE FOR PETITIONER'S COUNSEL TO HAVE FOLLOWED. 
AS ONE COMMENTATOR HAS SAID: 

     "IT HAS ALWAYS BEEN PERILOUS FOR THE OPPOSING PARTY NEITHER TO

  PROFFER ANY COUNTERING EVIDENTIARY MATERIALS NOR FILE A 56(F)

  AFFIDAVIT.  AND THE PERIL RIGHTLY CONTINUES (AFTER THE AMENDMENT

  TO RULE 56(E)).  YET THE PARTY MOVING FOR SUMMARY JUDGMENT HAS

  THE BURDEN TO SHOW THAT HE IS ENTITLED TO JUDGMENT UNDER

  ESTABLISHED PRINCIPLES; AND IF HE DOES NOT DISCHARGE THAT BURDEN

 THEN HE IS NOT ENTITLED TO JUDGMENT.  NO DEFENSE TO AN

INSUFFICIENT SHOWING IS REQUIRED."  6 J. MMORE, FEDERAL PRACTICE

  PARA. 56.22(2), PP. 2824-2825 (2D ED. 1966). 

     II 

THERE REMAINS TO BE DISCUSSED THE SUBSTANTIVE COUNT OF PETITIONER'S
COMPLAINT, AND THE SHOWING NECESSARY FOR PETITIONER TO PROVE THAT
RESPONDENT REFUSED HER SERVICE "UNDER COLOR OF ANY . . . CUSTOM, OR
USAGE, OF (THE) STATE" IN VIOLATION OF HER RIGHTS UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  /23/

        A. CUSTOM OR USAGE 

WE ARE FIRST CONFRONTED WITH THE ISSUE OF WHETHER A "CUSTOM" FOR
PURPOSES OF SEC. 1983 MUST HAVE THE FORCE OF LAW, OR WHETHER, AS ARGUED
IN DISSENT, NO STATE INVOLVEMENT IS REQUIRED.  ALTHOUGH THIS COURT HAS
NEVER EXPLICITLY DECIDED THIS QUESTION, WE DO NOT INTERPRET THE STATUTE
AGAINST AN AMORPHOUS BACKDROP. 

WHAT IS NOW 42 U.S.C. 1983 CAME INTO EXISTENCE AS SEC. 1 OF THE KU
KLUX KLAN ACT OF APRIL 20, 1871, 17 STAT. 13.  THE CHAIRMAN OF THE
HOUSE SELECT COMMITTEE WHICH DRAFTED THIS LEGISLATION DESCRIBED /24/
SEC. 1 AS MODELED AFTER SEC. 2 OF THE CIVIL RIGHTS ACT OF 1866-- A
CRIMINAL PROVISION THAT ALSO CONTAINED LANGUAGE THAT FORBADE CERTAIN
ACTS BY ANY PERSON "UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, OR CUSTOM," 14 STAT. 27.  IN THE CIVIL RIGHTS CASES, 109
U.S. 3, 16 (1883), THE COURT SAID OF THIS 1866 STATUTE:  "THIS LAW IS
CLEARLY CORRECTIVE IN ITS CHARACTER, INTENDED TO COUNTERACT AND FURNISH
REDRESS AGAINST STATE LAWS AND PROCEEDINGS, AND CUSTOMS HAVING THE
FORCE OF LAW, WHICH SANCTION THE WRONGFUL ACTS SPECIFIED."  MOREOVER,
AFTER AN EXHAUSTIVE EXAMINATION OF THE LEGISLATIVE HISTORY OF THE 1866
ACT, BOTH THE MAJORITY AND DISSENTING OPINIONS /25/  IN JONES V. ALFRED
H. MAYER CO., 392 U.S. 409 (1968), CONCLUDED THAT SEC. 2 OF THE 1866
CIVIL RIGHTS ACT WAS INTENDED TO BE LIMITED TO "DEPRIVATIONS
PERPETRATED 'UNDER COLOR OF LAW.'"  /26/ 

QUITE APART FROM THIS COURT'S CONSTRUCTION OF THE IDENTICAL "UNDER
COLOR OF" PROVISION OF SEC. 2 OF THE 1866 ACT, THE LEGISLATIVE HISTORY
OF SEC. 1 OF THE 1871 ACT, THE LINEAL ANCESTOR OF SEC. 1983, ALSO
INDICATES THAT THE PROVISION IN QUESTION HERE WAS INTENDED TO ENCOMPASS
ONLY CONDUCT SUPPORTED BY STATE ACTION.  THAT SUCH A LIMITATION WAS
INTENDED FOR SEC. 1 CAN BE SEEN FROM AN EXAMINATION OF THE STATEMENTS
AND ACTIONS OF BOTH THE SUPPORTERS AND OPPONENTS OF THE KU KLUX KLAN
ACT. 

IN FIRST REPORTING THE COMMITTEE'S RECOMMENDATIONS TO THE HOUSE,
REPRESENTATIVE SHELLABARGER, THE CHAIRMAN OF THE HOUSE SELECT COMMITTEE
WHICH DRAFTED THE KU KLUX KLAN ACT, SAID THAT SEC. 1 WAS "IN ITS TERMS
CAREFULLY CONFINED TO GIVING A CIVIL ACTION FOR SUCH WRONGS AGAINST
CITIZENSHIP AS ARE DONE UNDER COLOR OF STATE LAWS WHICH ABRIDGE THESE
RIGHTS."  /27/  SENATOR EDMUNDS, CHAIRMAN OF THE SENATE COMMITTEE ON
THE JUDICIARY, AND ALSO A SUPPORTER OF THE BILL, SAID OF THIS
PROVISION:  "THE FIRST SECTION IS ONE THAT I BELIEVE NOBODY OBJECTS TO,
AS DEFINING THE RIGHTS SECURED BY THE CONSTITUTION OF THE UNITED STATES
WHEN THEY ARE ASSAILED BY ANY STATE LAW OR UNDER COLOR OF ANY STATE
LAW, AND IT IS MERELY CARRYING OUT THE PRINCIPLES OF THE CIVIL RIGHTS
BILL, WHICH HAVE SINCE BECOME A PART OF THE CONSTITUTION."  /28/  THUS,
IN EACH HOUSE, THE LEADER OF THOSE FAVORING THE BILL EXPRESSLY STATED
HIS UNDERSTANDING THAT SEC. 1 WAS LIMITED TO DEPRIVATIONS OF RIGHTS
DONE UNDER COLOR OF LAW. 

THAT CONGRESS INTENDED TO LIMIT THE SCOPE OF SEC. 1 TO ACTIONS TAKEN
UNDER COLOR OF LAW IS FURTHER SEEN BY CONTRASTING ITS LEGISLATIVE
HISTORY WITH THAT OF OTHER SECTIONS OF THE SAME ACT.  ON THE ONE HAND,
THERE WAS COMPARATIVELY LITTLE DEBATE OVER SEC. 1 OF THE KU KLUX KLAN
ACT, AND IT WAS EVENTUALLY ENACTED IN FORM IDENTICAL TO THAT IN WHICH
IT WAS INTRODUCED IN THE HOUSE.  /29/  ITS HISTORY THUS STANDS IN SHARP
CONTRAST TO THAT OF OTHER SECTIONS OF THE ACT.  /30/  FOR EXAMPLE, SEC.
2 OF THE 1871 ACT, /31/  A PROVISION AIMED AT PRIVATE CONSPIRACIES WITH
NO "UNDER COLOR OF LAW" REQUIREMENT, CREATED A GREAT STORM OF
CONTROVERSY, IN PART BECAUSE IT WAS THOUGHT TO ENCOMPASS PRIVATE
CONDUCT.  SENATOR THURMAN, FOR EXAMPLE, ONE OF THE LEADERS OF THE
OPPOSITION TO THE ACT, ALTHOUGH OBJECTING TO SEC. 1 ON OTHER GROUNDS,
ADMITTED ITS CONSTITUTIONALITY /32/  AND CHARACTERIZED IT AS
"REFERRING) TO A DEPRIVATION UNDER COLOR OF LAW, EITHER STATUTE LAW OR
'CUSTOM OR USAGE' WHICH HAS BECOME COMMON LAW."  /33/  THIS SAME
SENATOR INSISTED VOCIFEROUSLY ON THE ABSENCE OF CONGRESSIONAL POWER
UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT TO PENALIZE A CONSPIRACY OF
PRIVATE INDIVIDUALS TO VIOLATE STATE LAW.  /34/  THE COMPARATIVE LACK
OF CONTROVERSY CONCERNING SEC. 1, IN THE CONTEXT OF THE HEATED DEBATE
OVER THE OTHER PROVISIONS, SUGGESTS THAT THE OPPONENTS OF THE ACT, WITH
MINOR EXCEPTIONS, LIKE ITS PROPONENTS UNDERSTOOD SEC. 1 TO BE LIMITED
TO CONDUCT UNDER COLOR OF LAW. 

IN ADDITION TO THE LEGISLATIVE HISTORY, THERE EXISTS AN UNBROKEN
LINE OF DECISIONS, EXTENDING BACK MANY YEARS, IN WHICH THIS COURT HAS
DECLARED THAT ACTION "UNDER COLOR OF LAW" IS A PREDICATE FOR A CAUSE OF
ACTION UNDER SEC. 1983, /35/  OR ITS CRIMINAL COUNTERPART, 18 U.S.C.
242.  /36/  MOREOVER, WITH THE POSSIBLE EXCEPTION OF AN EXCEEDINGLY
OPAQUE DISTRICT COURT OPINION, /37/  EVERY LOWER COURT OPINION OF WHICH
WE ARE AWARE THAT HAS CONSIDERED THE ISSUE, HAS CONCLUDED THAT A
"CUSTOM OR USAGE" FOR PURPOSES OF SEC. 1983 REQUIRES STATE INVOLVEMENT
AND IS NOT SIMPLY A PRACTICE THAT REFLECTS LONGSTANDING SOCIAL HABITS,
GENERALLY OBSERVED BY THE PEOPLE IN A LOCALITY.  /38/  FINALLY, THE
LANGUAGE OF THE STATUTE ITSELF POINTS IN THE SAME DIRECTION FOR IT
EXPRESSLY REQUIRES THAT THE "CUSTOM OR USAGE" BE THAT "OF ANY STATE,"
NOT SIMPLY OF THE PEOPLE LIVING IN A STATE.  IN SUM, AGAINST THIS
BACKGROUND, WE THINK IT CLEAR THAT A "CUSTOM, OR USAGE, OF (A) STATE"
FOR PURPOSES OF SEC. 1983 MUST HAVE THE FORCE OF LAW BY VIRTUE OF THE
PERSISTENT PRACTICES OF STATE OFFICIALS. 

CONGRESS INCLUDED CUSTOMS AND USAGES WITHIN ITS DEFINITION OF LAW IN
SEC. 1983 BECAUSE OF THE PERSISTENT AND WIDESPREAD DISCRIMINATORY
PRACTICES OF STATE OFFICIALS IN SOME AREAS OF THE POST-BELLUM SOUTH. 
AS REPRESENTATIVE GARFIELD SAID:  "(EVEN WHERE THE LAWS ARE JUST AND
EQUAL ON THEIR FACE, YET, BY A SYSTEMATIC MALADMINISTRATION OF THEM, OR
A NEGLECT OR REFUSAL TO ENFORCE THEIR PROVISIONS, A PORTION OF THE
PEOPLE ARE DENIED EQUAL PROTECTION UNDER THEM."  /39/  ALTHOUGH NOT
AUTHORIZED BY WRITTEN LAW, SUCH PRACTICES OF STATE OFFICIALS COULD WELL
BE SO PERMANENT AND WELL SETTLED AS TO CONSTITUTE A "CUSTOM OR USAGE"
WITH THE FORCE OF LAW. 

THIS INTERPRETATION OF CUSTOM RECOGNIZES THAT SETTLED PRACTICES OF
STATE OFFICIALS MAY, BY IMPOSING SANCTIONS OR WITHHOLDING BENEFITS,
TRANSFORM PRIVATE PREDILECTIONS INTO COMPULSORY RULES OF BEHAVIOR NO
LESS THAN LEGISLATIVE PRONOUNCEMENTS.  IF AUTHORITY BE NEEDED FOR THIS
TRUISM, IT CAN BE FOUND IN NASHVILLE, C. & ST. L.R. CO. V. BROWNING,
310 U.S. 362 (1940), WHERE THE COURT HELD THAT ALTHOUGH A STATUTORY
PROVISION SUGGESTED A DIFFERENT NOTE, THE "LAW" IN TENNESSEE AS
ESTABLISHED BY LONGSTANDING PRACTICE OF STATE OFFICIALS WAS THAT
RAILROADS AND PUBLIC UTILITIES WERE TAXED AT FULL CASH VALUE.  WHAT
JUSTICE FRANKFURTER WROTE THERE SEEMS EQUALLY APT HERE: 

"IT WOULD BE A NARROW CONCEPTION OF JURISPRUDENCE TO CONFINE THE
NOTION OF 'LAWS' TO WHAT IS FOUND WRITTEN ON THE STATUTE BOOKS, AND TO
DISREGARD THE GLOSS WHICH LIFE HAS WRITTEN UPON IT.  SETTLED STATE
PRACTICE . . . CAN ESTABLISH WHAT IS STATE LAW.  THE EQUAL PROTECTION
CLAUSE DID NOT WRITE AN EMPTY FORMALISM INTO THE CONSTITUTION.  DEEPLY
EMBEDDED TRADITIONAL WAYS OF CARRYING OUT STATE POLICY, SUCH AS THOSE
OF WHICH PETITIONER COMPLAINS, ARE OFTEN TOUGHER AND TRUER LAW THAN THE
DEAD WORDS OF THE WRITTEN TEXT."  ID., AT 369. 

AND IN CIRCUMSTANCES MORE CLOSELY ANALOGOUS TO THE CASE AT HAND, THE
STATEMENTS OF THE CHIEF OF POLICE AND MAYOR OF NEW ORLEANS, AS
INTERPRETED BY THE COURT IN LOMBARD V. LOUISIANA, 373 U.S. 267 (1963),
COULD WELL HAVE BEEN TAKEN BY RESTAURANT PROPRIETORS AS ARTICULATING A
CUSTOM HAVING THE FORCE OF LAW.  CF. GARNER V. LOUISIANA, 368 U.S. 157,
176-185 (DOUGLAS, J., CONCURRING) (1961); WRIGHT V. GEORGIA, 373 U.S.
284 (1963); BALDWIN V. MORGAN, 287 F.2D 750, 754 (C.A. 5TH CIR. 1961). 

        B. STATE ACTION-- 14TH AMENDMENT VIOLATION 

FOR PETITIONER TO RECOVER UNDER THE SUBSTANTIVE COUNT OF HER
COMPLAINT, SHE MUST SHOW A DEPRIVATION OF A RIGHT GUARANTEED TO HER BY
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  SINCE THE
"ACTION INHIBITED BY THE FIRST SECTION OF THE FOURTEENTH AMENDMENT IS
ONLY SUCH ACTION AS MAY FAIRLY BE SAID TO BE THAT OF THE STATES,"
SHELLEY V. KRAEMER, 334 U.S. 1, 13 (1948), WE MUST DECIDE, FOR PURPOSES
OF THIS CASE, THE FOLLOWING "STATE ACTION" ISSUE:  IS THERE SUFFICIENT
STATE ACTION TO PROVE A VIOLATION OF PETITIONER'S FOURTEENTH AMENDMENT
RIGHTS IF SHE SHOWS THAT KRESS REFUSED HER SERVICE BECAUSE OF A STATE
ENFORCED CUSTOM COMPELLING SEGREGATION OF THE RACES IN HATTIESBURG
RESTAURANTS? 

IN ANALYZING THIS PROBLEM, IT IS USEFUL TO STATE TWO POLAR
PROPOSITIONS, EACH OF WHICH IS EASILY IDENTIFIED AND RESOLVED.  ON THE
ONE HAND, THE FOURTENTH AMENDMENT PLAINLY PROHIBITS A STATE ITSELF FROM
DISCRIMINATING BECAUSE OF RACE.  ON THE OTHER HAND, SEC. 1 OF THE
FOURTEENTH AMENDMENT DOES NOT FORBID A PRIVATE PARTY, NOT ACTING
AGAINST A BACKDROP OF STATE COMPULSION OR INVOLVEMENT, TO DISCRIMINATE
ON THE BASIS OF RACE IN HIS PERSONAL AFFAIRS AS AN EXPRESSION OF HIS
OWN PERSONAL PREDILECTIONS.  AS WAS SAID IN SHELLEY V. KRAEMER, SUPRA,
SEC. 1 OF "(THAT AMENDMENT ERECTS NO SHIELD AGAINST MERELY PRIVATE
CONDUCT, HOWEVER DISCRIMINATORY OR WRONGFUL."  334 U.S.,AT 13. 

AT WHAT POINT BETWEEN THESE TWO EXTREMES A STATE'S INVOLVEMENT IN
THE REFUSAL BECOMES SUFFICIENT TO MAKE THE PRIVATE REFUSAL TO SERVE A
VIOLATION OF THE FOURTEENTH AMENDMENT, IS FAR FROM CLEAR UNDER OUR CASE
LAW.  IF A STATE HAD A LAW REQUIRING A PRIVATE PERSON TO REFUSE SERVICE
BECAUSE OF RACE, IT IS CLEAR BEYOND DISPUTE THAT THE LAW WOULD VIOLATE
THE FOURTEENTH AMENDMENT AND COULD BE DECLARED INVALID AND ENJOINED
FROM ENFORCEMENT.  NOR CAN A STATE ENFORCE SUCH A LAW REQUIRING
DISCRIMINATION THROUGH EITHER CONVICTIONS OF PROPRIETORS WHO REFUSE TO
DISCRIMINATE, OR TRESPASS PROSECUTIONS OF PATRONS WHO, AFTER BEING
DENIED SERVICE PURSUANT TO SUCH A LAW, REFUSE TO HONOR A REQUEST TO
LEAVE THE PREMISES.  /40/     THE QUESTION MOST RELEVANT FOR THIS CASE,
HOWEVER, IS A SLIGHTLY DIFFERENT ONE.  IT IS WHETHER THE DECISION OF AN
OWNER OF A RESTAURANT TO DISCRIMINATE ON THE BASIS OF RACE UNDER THE
COMPULSION OF STATE LAW OFFENDS THE FOURTEENTH AMENDMENT.  ALTHOUGH
THIS COURT HAS NOT EXPLICITLY DECIDED THE FOURTEENTH AMENDMENT STATE
ACTION IMPLICIT IN THIS QUESTION, UNDERLYING THE COURT'S DECISIONS IN
THE SIT-IN CASES IS THE NOTION THAT A STATE IS RESPONSIBLE FOR THE
DISCRIMINATORY ACT OF A PRIVATE PARTY WHEN THE STATE, BY ITS LAW, HAS
COMPELLED THE ACT.  AS THE COURT SAID IN PETERSON V. CITY OF
GREENVILLE, 373 U.S. 244, 248 (1963): "WHEN THE STATE HAS COMMANDED A
PARTICULAR RESULT, IT HAS SAVED TO ITSELF THE POWER TO DETERMINE THAT
RESULT AND THEREBY 'TO A SIGNIFICANT EXTENT' HAS 'BECOME INVOLVED' IN
IT."  MOREOVER, THERE IS MUCH SUPPORT IN LOWER COURT OPINIONS FOR THE
CONCLUSION THAT DISCRIMINATORY ACTS BY PRIVATE PARTIES DONE UNDER THE
COMPULSION OF STATE LAW OFFEND THE FOURTEENTH AMENDMENT.  IN BALDWIN V.
MORGAN, SUPRA, THE FIFTH CIRCUIT HELD THAT "(THE VERY ACT OF POSTING
AND MAINTAINING SEPARATE (WAITING ROOM) FACILITIES WHEN DONE BY THE
(RAILROAD) TERMINAL AS COMMANDED BY THESE STATE ORDERS IS ACTION BY THE
STATE."  THE COURT THEN WENT ON TO SAY:  "AS WE HAVE POINTED OUT ABOVE
THE STATE MAY NOT USE RACE OR COLOR AS THE BASIS FOR DISTINCTION.  IT
MAY NOT DO SO BY DIRECT ACTION OR THROUGH THE MEDIUM OF OTHERS WHO ARE
UNDER STATE COMPULSION TO DO SO."  ID., AT 755-756.  WE THINK THE SAME
PRINCIPLE GOVERNS HERE. 

FOR STATE ACTION PURPOSES IT MAKES NO DIFFERENCE OF COURSE WHETHER
THE RACIALLY DISCRIMINATORY ACT BY THE PRIVATE PARTY IS COMPELLED BY A
STATUTORY PROVISION OR BY A CUSTOM HAVING THE FORCE OF LAW-- IN EITHER
CASE IT IS THE STATE THAT HAS COMMANDED THE RESULT BY ITS LAW.  WITHOUT
DECIDING WHETHER LESS SUBSTANTIAL INVOLVEMENT OF A STATE MIGHT SATISFY
THE STATE ACTION REQUIREMENT OF THE FOURTEENTH AMENDMENT, WE CONCLUDE
THAT PETITIONER WOULD SHOW AN ABRIDGMENT OF HER EQUAL PROTECTION RIGHT,
IF SHE PROVES THAT KRESS REFUSED HER SERVICE BECAUSE OF A STATE
ENFORCED CUSTOM OF SEGREGATING THE RACES IN PUBLIC RESTAURANTS. 

        C. THREE ADDITIONAL POINTS 

FOR PURPOSES OF REMAND, WE CONSIDER IT APPROPRIATE TO MAKE THREE
ADDITIONAL POINTS. 

FIRST, THE DISTRICT COURT'S PRETRIAL OPINION SEEMS TO SUGGEST THAT
THE EXCLUSIVE MEANS AVAILABLE TO PETITIONER FOR DEMONSTRATING THAT
STATE ENFORCEMENT OF THE CUSTOM RELEVANT HERE WOULD BE BY SHOWING THAT
THE STATE USED ITS CRIMINAL TRESPASS STATUTE FOR THIS PURPOSE.  WE
DISAGREE WITH THE DISTRICT COURT'S IMPLICIT ASSUMPTION THAT A CUSTOM
CAN HAVE THE FORCE OF LAW ONLY IF IT IS ENFORCED BY A STATE STATUTE. 
/41/ ANY SUCH LIMITATION IS TOO RESTRICTIVE, FOR A STATE OFFICIAL MIGHT
ACT TO GIVE A CUSTOM THE FORCE OF LAW IN A VARIETY OF WAYS, AT LEAST
TWO EXAMPLES OF WHICH ARE SUGGESTED BY THE RECORD HERE.  FOR ONE THING,
PETITIONER MAY BE ABLE TO SHOW THAT THE POLICE SUBJECTED HER TO FALSE
ARREST FOR VAGRANCY FOR THE PURPOSE OF HARASSING AND PUNISHING HER FOR
ATTEMPTING TO EAT WITH BLACK PEOPLE.  /42/  ALTERNATIVELY, IT MIGHT BE
SHOWN ON REMAND THAT THE HATTIESBURG POLICE WOULD INTENTIONALLY
TOLERATE VIOLENCE OR THREATS OF VIOLENCE DIRECTED TOWARD THOSE WHO
VIOLATED THE PRACTICE OF SEGREGATING THE RACES AT RESTAURANTS.  /43/ 

SECOND, WE THINK THE DISTRICT COURT WAS WRONG IN RULING THAT THE
ONLY PROOF RELEVANT TO SHOWING A CUSTOM IN THIS CASE WAS THAT
DEMONSTRATING A SPECIFIC PRACTICE OF NOT SERVING WHITE PERSONS WHO WERE
IN THE COMPANY OF BLACK PERSONS IN PUBLIC RESTAURANTS.  AS JUDGE
WATERMAN POINTED OUT IN HIS DISSENT BELOW, PETITIONER COULD NOT
POSSIBLY PROVE A "LONG AND UNVARYING" HABIT OF SERVING ONLY THE BLACK
PERSONS IN A "MIXED" PARTY OF WHITES AND BLACKS FOR THE SIMPLE REASON
THAT "IT WAS ONLY AFTER THE CIVIL RIGHTS ACT OF 1964 BECAME LAW THAT
AFRO-AMERICANS HAD AN OPPORTUNITY TO BE SERVED IN MISSISSIPPI 'WHITE'
RESTAURANTS" AT ALL, 409 F.2D, AT 128.  LIKE JUDGE WATERMAN, WE THINK
THE DISTRICT COURT VIEWED THE MATTER TOO NARROWLY, FOR UNDER
PETITIONER'S COMPLAINT THE RELEVANT INQUIRY IS WHETHER AT THE TIME OF
THE EPISODE IN QUESTION THERE WAS A LONGSTANDING AND STILL PREVAILING
STATE-ENFORCED CUSTOM OF SEGREGATING THE RACES IN PUBLIC EATING
PLACES.  SUCH A CUSTOM, OF COURSE, WOULD PERFORCE ENCOMPASS THE
PARTICULAR KIND OF REFUSAL TO SERVE CHALLENGED IN THIS CASE. 

THIRD, BOTH THE DISTRICT COURT AND THE MAJORITY OPINION IN THE COURT
OF APPEALS SUGGESTED THAT PETITIONER WOULD HAVE TO SHOW THAT THE
RELEVANT CUSTOM EXISTED THROUGHOUT THE STATE, AND THAT PROOF THAT IT
HAD THE FORCE OF LAW IN HATTIESBURG-- A POLITICAL SUBDIVISION OF THE
STATE-- WAS INSUFFICIENT.  THIS TOO WE THINK WAS ERROR.  IN THE SAME
WAY THAT A LAW WHOSE SOURCE IS A TOWN ORDINANCE CAN OFFEND THE
FOURTEENTH AMENDMENT EVEN THOUGH IT HAS LESS THAN STATE-WIDE
APPLICATION, SO TOO CAN A CUSTOM WITH THE FORCE OF LAW IN A POLITICAL
SUBDIVISION OF A STATE OFFEND THE FOURTEENTH AMENDMENT EVEN THOUGH IT
LACKS STATE-WIDE APPLICATION. 

IN SUMMARY, IF PETITIONER CAN SHOW (1) THE EXISTENCE OF A STATE
ENFORCED CUSTOM OF SEGREGATING THE RACES IN PUBLIC EATING PLACES IN
HATTIESBURG AT THE TIME OF THE INCIDENT IN QUESTION; AND (2) THAT
KRESS' REFUSAL TO SERVE HER WAS MOTIVATED BY THAT STATE-ENFORCED
CUSTOM, SHE WILL HAVE MADE OUT A CLAIM UNDER SEC. 1983.  /44/ 

FOR THE FOREGOING REASONS WE THINK PETITIONER IS ENTITLED TO A NEW
TRIAL ON THE SUBSTANTIVE COUNT OF HER COMPLAINT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  REV. STAT. SEC. 1979, 42 U.S.C. 1983 PROVIDES: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

/2/  THE DISTRICT COURT DENIED PETITIONER'S REQUEST TO AMEND HER
COMPLAINT TO INCLUDE A THIRD COUNT SEEKING LIQUIDATED DAMAGES UNDER
SECS. 1 AND 2 OF THE CIVIL RIGHTS ACT OF 1875, 18 STAT. 335.  ALTHOUGH
IN HER CERTIORARI PETITION, PETITIONER CHALLENGED THIS RULING, AND
ASKED THIS COURT TO REVIVE THIS STATUTE BY OVERRULING THE HOLDING IN
THE CIVIL RIGHTS CASES, 109 U.S. 3 (1883), EXAMINATION OF THE RECORD
SHOWS THAT PETITIONER NEVER RAISED ANY ISSUE CONCERNING THE 1875
STATUTE BEFORE THE COURT OF APPEALS.  ACCORDINGLY, THE SECOND CIRCUIT
DID NOT RULE ON THESE CONTENTIONS.  WHERE ISSUES ARE NEITHER RAISED
BEFORE NOR CONSIDERED BY THE COURT OF APPEALS, THIS COURT WILL NOT
ORDINARILY CONSIDER THEM.  LAWN V. UNITED STATES, 355 U.S. 339, 362
363, N. 16 (1958); HUSTY V. UNITED STATES, 282 U.S. 694, 701-702
(1931); DUIGNAN V. UNITED STATES, 274 U.S. 195, 200 (1927).  WE DECLINE
TO DO SO HERE. 

/3/  THE STATUTE, MISS.  CODE ANN. SEC. 2046.5 (1956), INTER ALIA,
GIVES THE OWNERS, MANAGERS, OR EMPLOYEES OF BUSINESS ESTABLISHMENTS THE
RIGHT TO CHOOSE CUSTOMERS BY REFUSING SERVICE. 

/4/  SEE, E.G., MONROE V. PAPE, 365 U.S. 167, 184, 187 (1961);
UNITED STATES V. PRICE, 383 U.S. 787, 793, 794 (1966). 

/5/  THE FIRST COUNT OF PETITIONER'S COMPLAINT ALLEGES THAT KRESS'
REFUSAL TO SERVE PETITIONER "DEPRIVED (HER) OF THE PRIVILEGE OF EQUAL
ENJOYMENT OF A PLACE OF PUBLIC ACCOMMODATION BY REASON OF HER
ASSOCIATION WITH NEGROES AND (SHE) WAS THEREBY DISCRIMINATED AGAINST
BECAUSE OF RACE IN VIOLATION OF THE CONSTITUTION OF THE UNITED STATES
AND OF TITLE 42 U.S.C.  SECTION 1983."  (APP. 4.)  THE CONSPIRACY COUNT
ALLEGES, INTER ALIA, THAT KRESS AND THE HATTIESBURG POLICE "CONSPIRED
TOGETHER TO DEPRIVE PLAINTIFF OF HER RIGHT TO ENJOY EQUAL TREATMENT AND
SERVICE IN A PLACE OF PUBLIC ACCOMMODATION." 

THE LANGUAGE OF THE COMPLAINT MIGHT, IF READ GENEROUSLY, SUPPORT THE
CONTENTION THAT PETITIONER WAS ALLEGING A VIOLATION OF TITLE II, THE
PUBLIC ACCOMMODATIONS PROVISIONS, OF THE 1964 CIVIL RIGHTS ACT, 78
STAT. 243, 42 U.S.C. 2000A.  IT IS CLEAR, AND RESPONDENT SEEMINGLY
CONCEDES, THAT ITS REFUSAL TO SERVE PETITIONER WAS A VIOLATION OF SEC.
201 OF THE 1964 ACT, 42 U.S.C. 2000A.  IT IS VERY DOUBTFUL, HOWEVER,
THAT KRESS' VIOLATION OF MISS ADICKES' RIGHTS UNDER THE PUBLIC
ACCOMMODATIONS TITLE COULD PROPERLY SERVE AS A BASIS FOR RECOVERY UNDER
SEC. 1983.  CONGRESS DELIBERATELY PROVIDED NO DAMAGES REMEDY IN THE
PUBLIC ACCOMMODATIONS ACT ITSELF, AND SEC. 207(B) PROVIDES THAT THE
INJUNCTION REMEDY OF SEC. 206 WAS THE "EXCLUSIVE MEANS OF ENFORCING THE
RIGHTS BASED ON THIS TITLE."  MOREOVER, THE LEGISLATIVE HISTORY MAKES
QUITE PLAIN THAT CONGRESS DID NOT INTEND THAT VIOLATIONS OF THE PUBLIC
ACCOMMODATIONS TITLE BE ENFORCED THROUGH THE DAMAGES PROVISIONS OF SEC.
1983.  SEE 110 CONG.REC.  9767 (REMARK OF FLOOR MANAGER THAT THE
LANGUAGE OF 207(B) "IS NECESSARY BECAUSE OTHERWISE IT . . . WOULD
RESULT . . . IN CIVIL LIABILITY FOR DAMAGES UNDER 42 U.S.C. 1983"); SEE
ALSO 110 CONG.REC.  7384, 7405. 

IN UNITED STATES V. JOHNSON, 390 U.S. 563 (1968), THE COURT HELD
THAT VIOLATIONS OF SEC. 203(B) OF THE PUBLIC ACCOMMODATIONS TITLE COULD
SERVE AS THE BASIS FOR CRIMINAL PROSECUTION UNDER 18 U.S.C. 242
(ANOTHER CIVIL RIGHTS STATUTE) AGAINST "OUTSIDERS," HAVING NO RELATION
TO OWNERS AND PROPRIETORS OF PLACES OF PUBLIC ACCOMMODATIONS,
NOTWITHSTANDING THE "EXCLUSIVE" REMEDY PROVISION OF SEC. 207(B).  IT IS
DOUBTFUL WHETHER THE JOHNSON REASONING WOULD ALLOW RECOVERY UNDER SEC.
1983 FOR KRESS' ALLEGED VIOLATION OF SEC. 201, AND INDEED THE
PETITIONER DOES NOT OTHERWISE CONTEND.  THE COURT, IN JOHNSON, IN
HOLDING THAT THE SEC. 207(B) LIMITATION DID NOT APPLY TO VIOLATIONS OF
SEC. 203, STATED:  "(THE EXCLUSIVE-REMEDY PROVISION OF SEC. 207(B) WAS
INSERTED ONLY TO MAKE CLEAR THAT THE SUBSTANTIVE RIGHTS TO PUBLIC
ACCOMMODATION DEFINED IN SEC. 201 AND SEC. 202 ARE TO BE ENFORCED
EXCLUSIVELY BY INJUNCTION."  390 U.S.,AT 567. 

IN ANY EVENT, WE THINK IT CLEAR THAT THERE CAN BE RECOVERY UNDER
SEC. 1983 FOR CONDUCT THAT VIOLATES THE FOURTEENTH AMENDMENT, EVEN
THOUGH THE SAME CONDUCT MIGHT ALSO VIOLATE THE PUBLIC ACCOMMODATIONS
TITLE WHICH ITSELF NEITHER PROVIDES A DAMAGES REMEDY NOR CAN BE THE
BASIS OF A SEC. 1983 ACTION.  SECTION 207(B) OF THE PUBLIC
ACCOMMODATIONS TITLE EXPRESSLY PROVIDES THAT NOTHING IN THAT TITLE
"SHALL PRECLUDE ANY INDIVIDUAL . . . FROM ASSERTING ANY RIGHT BASED ON
ANY OTHER FEDERAL OR STATE LAW NOT INCONSISTENT WITH THIS TITLE . . .
OR FROM PURSUING ANY REMEDY, CIVIL OR CRIMINAL, WHICH MAY BE AVAILABLE
FOR THE VINDICATION OR ENFORCEMENT OF SUCH RIGHT."  THEREFORE, QUITE
APART FROM WHETHER SEC. 207 PRECLUDES ENFORCEMENT OF ONE'S RIGHTS UNDER
THE PUBLIC ACCOMMODATIONS TITLE THROUGH A DAMAGES ACTION UNDER 42
U.S.C. 1983, WE THINK IT EVIDENT THAT ENFORCEMENT OF ONE'S
CONSTITUTIONAL RIGHTS UNDER SEC. 1983 IS NOT "INCONSISTENT" WITH THE
PUBLIC ACCOMMODATIONS ACT. 

/6/  E.G., BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954); CF.
BARROWS V. JACKSON, 346 U.S. 249 (1953). 

/7/  ALTHOUGH PRICE CONCERNED A CRIMINAL PROSECUTION INVOLVING 18
U.S.C. 242, WE HAVE PREVIOUSLY HELD THAT "UNDER COLOR OF LAW" MEANS THE
SAME THING FOR SEC. 1983.  MONROE V. PAPE, SUPRA, AT 185 (MAJORITY
OPINION), 212 (OPINION OF FRANKFURTER, J.); UNITED STATES V. PRICE,
SUPRA, AT 794 N. 7. 

/8/  IN HIS DEPOSITION, POWELL ADMITTED KNOWING HUGH HERRING, CHIEF
OF POLICE OF HATTIESBURG, AND SAID THAT HE HAD SEEN AND TALKED TO HIM
ON TWO OCCASIONS IN 1964 PRIOR TO THE INCIDENT WITH MISS ADICKES. 
(APP. 123-126.)  WHEN ASKED HOW OFTEN THE ARRESTING OFFICER, RALPH
HILLMAN, CAME INTO THE STORE, POWELL STATED THAT HE DIDN'T KNOW
PRECISELY BUT "MAYBE EVERY DAY."  HOWEVER, POWELL SAID THAT ON AUGUST
14 HE DIDN'T RECALL SEEING ANY POLICEMEN EITHER INSIDE OR OUTSIDE THE
STORE (APP. 136), AND HE DENIED (1) THAT HE HAD CALLED THE POLICE, (2)
THAT HE HAD AGREED WITH ANY PUBLIC OFFICIAL TO DENY MISS ADICKES THE
USE OF THE LIBRARY, (3) THAT HE HAD AGREED WITH ANY PUBLIC OFFICIAL TO
REFUSE MISS ADICKES SERVICE IN THE KRESS STORE ON THE DAY IN QUESTION,
OR (4) THAT HE HAD ASKED ANY PUBLIC OFFICIAL TO HAVE MISS ADICKES
ARRESTED.  APP. 154-155. 

/9/  THE SIGNAL, ACCORDING TO POWELL, WAS A NOD OF HIS HEAD.  POWELL
CLAIMED THAT AT A MEETING ABOUT A MONTH EARLIER WITH MISS BAGGETT, THE
FOOD COUNTER SUPERVISOR, HE "TOLD HER NOT TO SERVE THE WHITE PERSON IN
THE GROUP IF I . . . SHOOK MY HEAD NO. BUT, IF I DIDN'T GIVE HER ANY
SIGN, TO GO AHEAD AND SERVE ANYBODY."  APP. 135. 

POWELL STATED THAT HE HAD PREARRANGED THIS TACIT SIGNAL WITH MISS
BAGGETT BECAUSE "THERE WAS QUITE A LOT OF VIOLENCE . . . IN
HATTIESBURG" DIRECTED TOWARDS WHITES "WITH COLORED PEOPLE, IN WHAT YOU
CALL A MIXED GROUP."  APP. 131. 

/10/  POWELL DESCRIBED THE CIRCUMSTANCES OF HIS REFUSAL AS FOLLOWS: 

"ON THIS PARTICULAR DAY, JUST SHORTLY AFTER 12 O'CLOCK, I ESTIMATE
THERE WAS 75 TO 100 PEOPLE IN THE STORE, AND THE LUNCH COUNTER WAS
PRETTY-- WAS PRETTY WELL TO CAPACITY THERE, FULL, AND I WAS GOING UP
TOWARDS THE FRONT OF THE STORE IN ONE OF THE AISLES, AND LOOKING
TOWARDS THE FRONT OF THE STORE, AND THERE WAS A GROUP OF COLORED GIRLS,
AND A WHITE WOMAN WHO CAME INTO THE NORTH DOOR, WHICH WAS NEXT TO THE
LUNCH COUNTER. 

"AND THE ONE THING THAT REALLY STOPPED ME AND CALLED MY ATTENTION TO
THIS GROUP, WAS THE FACT THAT THEY WERE DRESSED ALIKE.  THEY ALL HAD
ON, WHAT LOOKED LIKE A LIGHT BLUE DENIM SKIRT.  AND THE BEST I CAN
REMEMBER IS THAT THEY WERE-- THEY WERE ALMOST IDENTICAL, ALL OF THEM. 
AND THEY CAME INTO THE DOOR, AND PEOPLE COMING IN STOPPED TO LOOK, AND
THEY WENT ON TO THE BOOTHS.  AND THERE HAPPENED TO BE TWO EMPTY THERE. 
AND ONE GROUP OF THEM AND THE WHITE WOMAN SAT DOWN IN ONE, AND THE REST
OF THEM SAT IN THE SECOND GROUP.     "AND, ALMOST IMMEDIATELY THERE-- I
MEAN THIS, IT DIDN'T TAKE JUST A FEW SECONDS FROM THE TIME THEY CAME
INTO THE DOOR TO SIT DOWN, BUT, ALREADY THE PEOPLE BEGAN TO MILL AROUND
THE STORE AND STARTED COMING OVER TOWARDS THE LUNCH COUNTER.  AND, BY
THAT TIME I WAS UP CLOSE TO THE CANDY COUNTER, AND I HAD A WIDE OPEN
VIEW THERE.  AND THE PEOPLE HAD REAL SOUR LOOKS ON THEIR FACES, NOBODY
WAS JOKING, OR BEING CORNY, OR CARRYING ON.  THEY LOOKED LIKE A
FRIGHTENED MOB.  THEY REALLY DID.  I HAVE SEEN MOBS BEFORE.  I WAS IN
KOREA DURING THE RIOTS IN 1954 AND 1955.  AND I KNOW WHAT THEY ARE. 
AND THIS ACTUALLY GOT ME.     "I LOOKED OUT TOWARDS THE FRONT, AND WE
HAVE WHAT THEY CALL SEE-THROUGH WINDOWS.  THERE IS NO BACKS TO THEM. 
YOU CAN LOOK OUT OF THE STORE RIGHT INTO THE STREET.  AND THE NORTH
WINDOW, IT LOOKS RIGHT INTO THE LUNCH COUNTER.  25 OR 30 PEOPLE WERE
STANDING THERE LOOKING IN, AND ACROSS THE STREET EVEN, IN A JEWELRY
STORE, PEOPLE WERE STANDING THERE, AND IT LOOKED REALLY BAD TO ME.  IT
LOOKED LIKE ONE PERSON COULD HAVE YELLED 'LET'S GET THEM,' WHICH HAS
HAPPENED BEFORE, AND CAUSE THIS GROUP TO TURN INTO A MOB.  AND, SO,
QUICKLY I JUST MADE UP MY MIND TO AVOID THE RIOT, AND PROTECT THE
PEOPLE THAT WERE IN THE STORE, AND MY EMPLOYEES, AS FAR AS THE PEOPLE
IN THE MOB WHO WERE GOING TO GET HURT THEMSELVES.  I JUST KNEW THAT
SOMETHING WAS GOING TO BREAK LOOSE THERE."  APP. 133-134. 

/11/  THE AFFIDAVIT OF THE CHIEF OF POLICE, WHO IT APPEARS WAS NOT
PRESENT AT THE ARREST, STATES IN RELEVANT PART: 

"MR. POWELL HAD MADE NO REQUEST OF ME TO ARREST MISS SANDRA ADICKES
OR ANY OTHER PERSON, IN FACT, I DID NOT KNOW MR. POWELL PERSONALLY
UNTIL THE DAY OF THIS STATEMENT.  (BUT CF. POWELL'S STATEMENT AT HIS
DEPOSITION, N. 8, SUPRA.) MR. POWELL AND I HAD NOT DISCUSSED THE ARREST
OF THIS PERSON UNTIL THE DAY OF THIS STATEMENT AND WE HAD NEVER
PREVIOUSLY DISCUSSED HER IN ANY WAY."  (APP. 107.) 

/12/  THE AFFIDAVITS OF SERGEANT BOONE AND OFFICER HILLMAN EACH
STATE, IN IDENTICAL LANGUAGE: 

"I WAS CONTACTED ON THIS DATE BY MR. JOHN H. WILLIAMS, JR., A
REPRESENTATIVE OF GENESCO, OWNERS OF S.H. KRESS AND COMPANY, WHO
REQUESTED THAT I MAKE A STATEMENT CONCERNING ALLEGED CONSPIRACY IN
CONNECTION WITH THE AFORESAID ARREST. 

"THIS ARREST WAS MADE ON THE PUBLIC STREETS OF HATTIESBURG,
MISSISSIPPI, AND WAS AN OFFICERS DISCRETION ARREST.  I HAD NOT
CONSULTED WITH MR. G. T. POWELL, AMANAGER OF S.H. KRESS AND COMPANY IN
HATTIESBURG, AND DID NOT KNOW HIS NAME UNTIL THIS DATE.  NO ONE AT THE
KRESS STORE ASKED THAT THE ARREST BE MADE AND I DID NOT CONSULT WITH
ANYONE PRIOR TO THE ARREST."  (APP. 110, 112.) 

/13/  WHEN ASKED WHETHER SHE SAW ANY POLICEMAN IN THE STORE UP TO
THE TIME OF THE REFUSAL OF SERVICE, MISS ADICKES ANSWERED:  "MY BACK
WAS TO THE DOOR, BUT ONE OF MY STUDENTS SAW A POLICEMAN COME IN." 
(APP. 75.)  SHE WENT ON TO IDENTIFY THE STUDENT AS "CAROLYN."  AT THE
TRIAL, CAROLYN MONCURE, ONE OF THE STUDENTS WHO WAS WITH PETITIONER,
TESTIFIED THAT "ABOUT FIVE MINUTES" AFTER THE GROUP HAD SAT DOWN AND
WHILE THEY WERE STILL WAITING FOR SERVICE, SHE SAW A POLICEMAN COME IN
THE STORE.  SHE STATED:  "(HE CAME IN THE STORE, MY FACE WAS FACING THE
FRONT OF THE STORE, AND HE CAME IN THE STORE AND HE PASSED, AND HE
STOPPED RIGHT AT THE END OF OUR BOOTH, AND HE STOOD UP AND HE LOOKED
AROUND AND HE SMILED, AND HE WENT TO THE BACK OF THE STORE,HE CAME
RIGHT BACK AND HE LEFT OUT."  (APP. 302.)  THIS TESTIMONY WAS
CORROBORATED BY THAT OF DIANNE MONCURE, CAROLYN'S SISTER, WHO WAS ALSO
PART OF THE GROUP.  SHE TESTIFIED THAT WHILE THE GROUP WAS WAITING FOR
SERVICE, A POLICEMAN ENTERED THE STORE, STOOD "FOR AWHILE" LOOKING AT
THE GROUP, AND THEN "WALKED TO THE BACK OF THE STORE."  (APP. 291.) 

/14/  DURING DISCOVERY, RESPONDENT GAVE TO PETITIONER AN UNSWORN
STATEMENT BY MISS IRENE SULLIVAN, A CHECK-OUT GIRL.  IN THIS STATEMENT
MISS SULLIVAN SAID THAT SHE HAD SEEN PATROLMAN HILLMAN COME INTO THE
STORE "(SHORTLY AFTER 12:00 NOON," WHILE PETITIONER'S GROUP WAS IN THE
STORE.  SHE SAID THAT HE HAD TRADED A "HELLO GREETING" WITH HER, AND
THEN WALKED PAST HER CHECK-OUT COUNTER TOWARD THE BACK OF THE STORE
"OUT OF (HER) LINE OF VISION."  SHE WENT ON:  "A FEW MINUTES LATER
PATROLMAN HILLMAN LEFT OUR STORE BY THE NORTHERLY FRONT DOOR JUST
SLIGHTLY AHEAD OF A GROUP COMPOSED OF SEVERAL NEGROES ACCOMPANIED BY A
WHITE WOMAN.  AS HILLMAN STEPPED ONTO THE SIDEWALK OUTSIDE OUR STORE
THE POLICE CAR PULLED ACROSS THE STREET AND INTO AN ALLEY THAT IS
ALONGSIDE OUR STORE.  THE POLICE CAR STOPPED AND PATROLMAN HILLMAN
ESCORTED THE WHITE WOMAN AWAY FROM THE NEGROES AND INTO THE POLICE
CAR."  (APP. 178.) 

/15/  SEE,E.G., UNITED STATES V. DIEBOLD, INC., 369 U.S. 654, 655
(1962); 6 J. MOORE, FEDERAL PARACTICE PARA. 56.15(3) (2D ED. 1966). 

/16/  IN A SUPPLEMENTAL BRIEF FILED IN THIS COURT RESPONDENT LODGED
A COPY OF AN UNSWORN STATEMENT BY MISS BAGGETT DENYING ANY CONTACT WITH
THE POLICE ON THE DAY IN QUESTION.  APART FROM THE FACT THAT THE
STATEMENT IS UNSWORN, SEE FED. RULE CIV. PROC. 56(E), THE STATEMENT
ITSELF IS NOT IN THE RECORD OF THE PROCEEDINGS BELOW AND THEREFORE
COULD NOT HAVE BEEN CONSIDERED BY THE TRIAL COURT.  MANIFESTLY, IT
CANNOT BE PROPERLY CONSIDERED BY US IN THE DISPOSITION OF THE CASE. 

DURING DISCOVERY, PETITIONER ATTEMPTED TO DEPOSE MISS BAGGETT. 
HOWEVER, KRESS SUCCESSFULLY RESISTED THIS BY CONVINCING THE DISTRICT
COURT THAT MISS BAGGETT WAS NOT A "MANAGING AGENT," AND "WAS WITHOUT
POWER TO MAKE MANAGERIAL DECISIONS." 

/17/  THE RECORD DOES CONTAIN AN UNSWORN STATEMENT BY MISS FREEMAN
IN WHICH SHE STATES THAT SHE "DID NOT CONTACT THE POLICE OR ASK ANYONE
ELSE TO CONTACT THE POLICE TO MAKE THE ARREST WHICH SUBSEQUENTLY
OCCURRED."  (APP. 177.)  THIS STATEMENT, BEING UNSWORN, DOES NOT MEET
THE REQUIREMENTS OF FED. RULE CIV. PROC. 56(E), AND WAS NOT RELIED ON
BY RESPONDENT IN MOVING FOR SUMMARY JUDGMENT.  MOREOVER, IT DOES NOT
FORECLOSE THE POSSIBILITY THAT MISS FREEMAN WAS INFLUENCED IN HER
REFUSAL TO SERVE MISS ADICKES BY SOME CONTACT WITH A POLICEMAN PRESENT
IN THE STORE. 

/18/  THE AMENDMENT ADDED THE FOLLOWING TO RULE 56(E): 

"WHEN A MOTION FOR SUMMARY JUDGMENT IS MADE AND SUPPORTED AS
PROVIDED IN THIS RULE, AN ADVERSE PARTY MAY NOT REST UPON THE MERE
ALLEGATIONS OR DENIALS OF HIS PLEADING, BUT HIS RESPONSE,BY AFFIDAVITS
OR AS OTHERWISE PROVIDED IN THIS RULE, MUST SET FORTH SPECIFIC FACTS
SHOWING THAT THERE IS A GENUINE ISSUE FOR TRIAL.  IF HE DOES NOT SO
RESPOND, SUMMARY JUDGMENT, IF APPROPRIATE, SHALL BE ENTERED AGAINST
HIM." 

/19/  PETITIONER'S STATEMENT AT HER DEPOSITION, SEE N. 13, SUPRA,
WAS, OF COURSE, HEARSAY; AND THE STATEMENT OF MISS SULLIVAN, SEE N. 14,
SUPRA, WAS UNSWORN.  AND, THE RULE SPECIFIES THAT RELIANCE ON
ALLEGATIONS IN THE COMPLAINT IS NOT SUFFICIENT.  SEE FED. RULE CIV.
PROC. 56(E). 

/20/  THE PURPOSE OF THE 1963 AMENDMENT WAS TO OVERTURN A LINE OF
CASES, PRIMARILY IN THE THIRD CIRCUIT, THAT HAD HELD THAT A PARTY
OPPOSING SUMMARY JUDGMENT COULD SUCCESSFULLY CREATE A DISPUTE AS TO A
MATERIAL FACT ASSERTED IN AN AFFIDVAIT BY THE MOVING PARTY SIMPLY BY
RELYING ON A CONTRARY ALLEGATION IN A WELL-PLEADED COMPLAINT.  E.G.,
FREDERICK HART & CO. V. RECORDGRAPH CORP., 169 F.2D 580 (1948); UNITED
STATES EX REL. KOLTON V. HALPERN, 260 F.2D 590 (1958).  SEE ADVISORY
COMMITTEE NOTE ON 1963 AMENDMENT TO SUBDIVISION (E) OF RULE 56. 

/21/  IBID. 

/22/  IN FIRST NATIONAL BANK V. CITIES SERVICE, 391 U.S. 251 (1968),
THE PETITIONER CLAIMED THAT THE LOWER COURTS HAD MISAPPLIED RULE 56(E)
TO SHIFT THE BURDEN IMPOSED BY RULE 56(C).  IN REJECTING THIS
CONTENTION, WE SAID:  "ESSENTIALLY ALL THAT THE LOWER COURTS HELD IN
THIS CASE WAS THAT RULE 56(E) PLACED UPON (PETITIONER) THE BURDEN OF
PRODUCING EVIDENCE OF THE CONSPIRACY HE ALLEGED ONLY AFTER RESPONDENT .
. . CONCLUSIVELY SHOWED THAT THE FACTS UPON WHICH HE RELIED TO SUPPORT
HIS ALLEGATION WERE NOT SUSCEPTIBLE OF THE INTERPRETATION WHICH HE
SOUGHT TO GIVE THEM."  ID., AT 289.  IN THIS CASE, ON THE OTHER HAND,
WE HOLD THAT RESPONDENT FAILED TO SHOW CONCLUSIVELY THAT A FACT ALLEGED
BY PETITIONER WAS "NOT SUSCEPTIBLE" OF AN INTERPRETATION THAT MIGHT
GIVE RISE TO AN INFERENCE OF CONSPIRACY. 

/23/  PETITIONER ALSO APPEARS TO ARGUE THAT, QUITE APART FROM
CUSTOM, SHE WAS REFUSED SERVICE UNDER COLOR OF THE STATE TRESPASS
STATUTE, SUPRA, N. 2.  IT SHOULD BE NOTED, HOWEVER, THAT THIS TRESPASS
STATUTE BY ITS TERMS DOES NOT COMPEL SEGREGATION OF THE RACES. 
ALTHOUGH SUCH A TRESPASS STATUTE MIGHT WELL HAVE INVALID APPLICATIONS
IF USED TO COMPEL SEGREGATION OF THE RACES THROUGH STATE TRESPASS
CONVICTIONS, SEE ROBINSON V. FLORIDA, 378 U.S. 153 (1964), THE STATUTE
HERE WAS NOT SO USED IN THIS CASE.  MISS ADICKES, ALTHOUGH REFUSED
SERVICE, WAS NOT ASKED TO LEAVE THE STORE, AND WAS NOT ARRESTED FOR A
TRESPASS ARISING FROM A REFUSAL TO LEAVE PURSUANT TO THIS STATUTE.  THE
MAJORITY BELOW, BECAUSE IT THOUGHT THE CODE PROVISION MERELY RESTATED
THE COMMON LAW "ALLOWING (RESTAURATEURS) TO SERVE WHOMEVER THEY
WISHED," 409 F.2D, AT 126, CONCLUDED THAT A PRIVATE DISCRIMINATION ON
THE BASIS OF RACE PURSUANT TO THIS PROVISION WOULD NOT FULFILL THE
"STATE ACTION" REQUIREMENT NECESSARY TO SHOW A VIOLATION OF THE
FOURTEENTH AMENDMENT.  JUDGE WATERMAN, IN DISSENT, ARGUED THAT THE
STATUTE CHANGED THE COMMON LAW, AND OPERATED TO ENCOURAGE RACIAL
DISCRIMINATION. 

BECAUSE A FACTUAL PREDICATE FOR STATUTORY RELIEF UNDER SEC. 1983 HAS
NOT YET BEEN ESTABLISHED BELOW, WE THINK IT INAPPROPRIATE IN THE
PRESENT POSTURE OF THIS CASE TO DECIDE THE CONSTITUTIONAL ISSUE OF
WHETHER OR NOT PROOF THAT A PRIVATE PERSON KNOWINGLY DISCRIMINATED ON
THE BASIS OF RACE PURSUANT TO A STATE TRESPASS STATUTE LIKE THE ONE
INVOLVED HERE WOULD MAKE OUT A VIOLATION OF THE FOURTEENTH AMENDMENT. 
WHATEVER ELSE MAY ALSO BE NECESSARY TO SHOW THAT A PERSON HAS ACTED
"UNDER COLOR OF (A) STATUTE" FOR PURPOSES OF SEC. 1983, SEE N. 44,
INFRA, WE THINK IT ESSENTIAL THAT HE ACT WITH THE KNOWLEDGE OF AND
PURSUANT TO THAT STATUTE.  THE COURTS BELOW HAVE MADE NO FACTUAL
DETERMINATIONS CONCERNING WHETHER OR NOT THE KRESS REFUSAL TO SERVE
MISS ADICKES WAS THE REULST OF ACTION BY A KRESS EMPLOYEE WHO HAD
KNOWLEDGE OF THE TRESPASS STATUTE, AND WHO WAS ACTING PURSUANT TO IT. 

/24/  CONG. GLOBE, 42D CONG., 1ST SESS., APP. 68 (STATEMENT BY REP.
SHELLABARGER). 

/25/  392 U.S.,AT 424-426 (MAJORITY OPINION); ID., AT 454-473
(HARLAN, J., DISSENTING). 

/26/  ID., AT 426.  IN ARGUING THAT SEC. 1 OF THE 1866 ACT (THE
PREDECESSOR OF WHAT IS NOW 42 U.S.C. 1982) WAS MEANT TO COVER PRIVATE
AS WELL AS GOVERNMENTAL INTERFERENCE WITH CERTAIN RIGHTS, THE COURT IN
JONES SAID: 

"INDEED, IF SEC. 1 HAD BEEN INTENDED TO GRANT NOTHING MORE THAN AN
IMMUNITY FROM GOVERNMENTAL INTERFERENCE, THEN MUCH OF SEC. 2 WOULD HAVE
MADE NO SENSE AT ALL.  FOR THAT SECTION, WHICH PROVIDED FINES AND
PRISON TERMS FOR CERTAIN INDIVIDUALS WHO DEPRIVED OTHERS OF RIGHTS
'SECURED OR PROTECTED' BY SEC. 1, WAS CAREFULLY DRAFTED TO EXEMPT
PRIVATE VIOLATIONS OF SEC. 1 FROM THE CRIMINAL SANCTIONS IT IMPOSED . .
. . HENCE THE STRUCTURE OF THE 1866 ACT, AS WELL AS ITS LANGUAGE,
POINTS TO THE CONCLUSION . . . (THAT) ONLY THOSE DEPRIVATIONS
PERPETRATED 'UNDER COLOR OF LAW' WERE TO BE CRIMINALLY PUNISHABLE UNDER
SEC. 2."  ID., 424-426.  THE COURT IN JONES CITED THE LEGISLATIVE
HISTORY OF SEC. 2 TO SUPPORT ITS CONCLUSION THAT THE SECTION "WAS
CAREFULLY DRAFTED TO EXEMPT PRIVATE VIOLATIONS" AND PUNISH ONLY
"GOVERNMENTAL INTERFERENCE."  ID., AT 424-425 AND N. 33. 

/27/  CONG. GLOBE, 42D CONG., 1ST SESS., APP. 68. 

/28/  ID., AT 568, QUOTED IN MONROE V. PAPE, SUPRA, AT 171; SEE ALSO
CONG. GLOBE, SUPRA, AT APP. 79 (REP. A. PERRY) (SEC. 1 UNDERSTOOD TO
REMEDY INJURIES DONE "UNDER COLOR OF STATE AUTHORITY"). 

/29/  COMPARE ID., AT APP. 68 WITH 17 STAT. 13.  SEE ID., AT 568;
APP. 153-154 (REP. GARFIELD). 

/30/  THROUGHOUT THE DEBATES, FOR EXAMPLE, "MODERATES" WHO EXPRESSED
NO OPPOSITION TO SEC. 1, OBJECTED TO OTHER PROPOSALS THAT THEY SAW AS
ALLOWING THE FEDERAL GOVERNMENT TO TAKE OVER THE STATE'S TRADITIONAL
ROLE OF PUNISHING UNLAWFUL CONDUCT OF PRIVATE PARTIES.  SEE, E.G., ID.,
AT 578-579 (SEN. TRUMBULL, THE AUTHOR OF THE 1866 ACT); 514 (REP.
POLAND); APP. 153 (REP. GARFIELD). 

/31/  SECTION 2 OF THE KU KLUX KLAN ACT IS, AS AMENDED, 42 U.S.C.
1985(3).  IN COLLINS V. HARDYMAN, 341 U.S. 651 (1951), IN ORDER TO
AVOID DECIDING WHETHER THERE WAS CONGRESSIONAL POWER TO ALLOW A CIVIL
REMEDY FOR PURELY PRIVATE CONSPIRACIES, THE COURT IN EFFECT INTERPRETED
SEC. 1985(3) TO REQUIRE ACTION UNDER COLOR OF LAW EVEN THOUGH THIS
ELEMENT IS NOT FOUND IN THE EXPRESS TERMS OF THE STATUTE.  IN A DISSENT
JOINED BY MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON
SAID OF SEC. 1985(3):  "THE LANGUAGE OF THE STATUTE REFUTES THE
SUGGESTION THAT ACTION UNDER COLOR OF STATE LAW IS A NECESSARY
INGREDIENT OF THE CAUSE OF ACTION WHICH IT RECOGNIZES . . . . WHEN
CONGRESS, AT THIS PERIOD, DID INTEND TO LIMIT COMPARABLE CIVIL RIGHTS
LEGISLATION TO ACTION UNDER COLOR OF STATE LAW, IT SAID SO IN
UNMISTAKABLE TERMS," CITING AND QUOTING WHAT IS NOW SEC. 1983.  ID., AT
663-664.  WITHOUT INTIMATING ANY VIEW CONCERNING THE CORRECTNESS OF THE
COURT'S INTERPRETATION OF SEC. 1985(3) IN COLLINS, WE AGREE WITH THE
DISSENTERS IN THAT CASE THAT CONGRESS IN ENACTING WHAT IS NOW SEC. 1983
"SAID . . . IN UNMISTAKABLE TERMS" THAT ACTION UNDER COLOR OF LAW IS
NECESSARY. 

/32/  CONG. GLOBE, SUPRA, AT APP. 216. 

/33/  ID., AT APP. 217; SEE ALSO ID., AT APP. 268 (REP. SLOSS). 

/34/  ID., AT APP. 218. 

/35/  E.G., PIERSON V. RAY, 386 U.S. 547, 554 (1967); MONROE V.
PAPE, SUPRA; SMITH V. ALLWRIGHT, 321 U.S. 649 (1944).    /36/  UNITED
STATES V. PRICE, 383 U.S. 787, 794 N. 7 (1966); WILLIAMS V. UNITED
STATES, SUPRA; SCREWS V. UNITED STATES, SUPRA, AT 109; UNITED STATES V.
CLASSIC, SUPRA, AT 326-329.  SECTION 242 OF 18 U.S.C. IS THE DIRECT
DESCENDANT OF SEC. 2 OF THE 1866 CIVIL RIGHTS ACT.  SEE N. 26, SUPRA.

/37/  IN GANNON V. ACTION, 303 F.SUPP.  1240 (D.C.E.D. MO. 1969),
THE OPINION ON THE ONE HAND SAID THAT "SECTION 1983 . . . REQUIRES THAT
THE ACTION FOR WHICH REDRESS IS SOUGHT BE UNDER 'COLOR' OF STATE LAW." 
IT THEN WENT ON TO DECIDE THAT THE DEFENDANTS UNDER COLOR OF A "CUSTOM
OF USAGE OF THE STATE OF MISSOURI . . . (OF) UNDISTURBED WORSHIP BY ITS
CITIZENS ACCORDING TO THE DICTATES OF THEIR CONSCIENCES" ENTERED A ST.
LOUIS CATHEDRAL, DISRUPTED A SERVICE AND THUS "DEPRIVED PLAINTIFFS OF
THEIR CONSTITUTIONAL RIGHTS OF FREEDOM OF ASSEMBLY, SPEECH, AND
WORSHIP, AND TO USE AND ENJOY THEIR PROPERTY, ALL IN VIOLATION OF

/38/  WILLIAMS V. HOWARD JOHNSON'S, INC., 323 F.2D 102 (C.A. 4TH
CIR. 1963); WILLIAMS V. HOT SHOPPES, INC., 110 U.S.APP.D.C. 358, 363,
293 F.2D 835, 840 (1961) ("AS TO THE ARGUMENT BASED UPON THE 'CUSTOM OR
USAGE' LANGUAGE OF THE STATUTE, WE JOIN WITH THE UNANIMOUS DECISION OF
THE FOURTH CIRCUIT IN SUPPORT OF THE PROPOSITION THAT-- 'THE CUSTOMS OF
THE PEOPLE OF A STATE DO NOT CONSTITUTE STATE ACTION WITHIN THE
PROHIBITION OF THE FOURTEENTH AMENDMENT,'" QUOTING FROM WILLIAMS V.
HOWARD JOHNSON'S RESTAURANT, 268 F.2D 845, 848 (C.A. 4TH CIR. 1959)),
AND 110 U.S.APP.D.C.,AT 367-368, 293 F.2D, AT 844-845 (BAZELON, J.,
DISSENTING); SEE SLACK V. ATLANTIC WHITE TOWER SYSTEM, 181 F.SUPP. 
124, 127-128, 130 (D.C. MD.), AFF'D, 284 F.2D 746 (C.A. 4TH CIR.
1960). 

IT SHOULD ALSO BE NOTED THAT THE DISSENTING OPINION BELOW THOUGHT A
"CUSTOM OR USAGE" HAD TO HAVE THE FORCE OF LAW.  409 F.2D,AT 128. 

/39/  CONG. GLOBE, 42D CONG., 1ST SESS., APP. 153.  MR. JUSTICE
BRENNAN, POST, AT 219, 230, INFERS FROM THIS STATEMENT THAT REP.
GARFIELD THOUGHT SEC. 1983 WAS MEANT TO PROVIDE A REMEDY IN
CIRCUMSTANCES WHERE THE STATE HAD FAILED TO TAKE AFFIRMATIVE ACTION TO
PREVENT WIDESPREAD PRIVATE DISCRIMINATION.  SUCH A READING OF THE
STATEMENT IS TOO BROAD, HOWEVER.  ALL REP. GARFIELD SAID WAS THAT A
STATE, THROUGH THE PRACTICES OF ITS OFFICIALS, COULD DENY A PERSON
EQUAL PROTECTION OF THE LAWS BY THE "SYSTEMATIC MALADMINISTRATION" OF,
OR "A NEGLECT OR REFUSAL TO ENFORCE" WRITTEN LAWS THAT WERE "JUST AND
EQUAL ON THEIR FACE."  OFFICIAL INACTION IN THE SENSE OF NEGLECTING TO
ENFORCE LAWS ALREADY ON THE BOOKS IS QUITE DIFFERENT FROM THE INACTION
IMPLICIT IN THE FAILURE TO ENACT CORRECTIVE LEGISLATION. 

/40/  E.G., PETERSON V. CITY OF GREENVILLE, 373 U.S. 244 (1963);
ROBINSON V. FLORIDA, 378 U.S. 153 (1964); SEE LOMBARD V. LOUISIANA, 373
U.S. 267 (1963); SHUTTLESWORTH V. BIRMINGHAM, 373 U.S. 262 (1963). 

/41/  BECAUSE IT THOUGHT PETITIONER HAD FAILED TO PROVE THE
EXISTENCE OF A CUSTOM, THE MAJORITY OF THE SECOND CIRCUIT EXPLICITLY
REFUSED TO DECIDE WHETHER PETITIONER HAD TO PROVE "THE CUSTOM OR USAGE
WAS ENFORCED BY A STATE STATUTE," 409 F.2D,AT 125. 

/42/  TOGETHER WITH SOME OTHER CIVIL RIGHTS WORKERS ALSO BEING
PROSECUTED ON VAGRANCY CHARGES, MISS ADICKES, IN A SEPARATE ACTION,
REMOVED THE STATE VAGRANCY PROSECUTION AGAINST HER TO A FEDERAL COURT
ON THE GROUND THAT THE ARREST AND PROSECUTION WERE IN RETALIATION FOR
HER ATTEMPT TO EXERCISE HER RIGHTS UNDER THE PUBLIC ACCOMMODATIONS
TITLE OF THE 1964 CIVIL RIGHTS ACT.  THE DISTRICT COURT REMANDED THE
CHARGE TO THE STATE COURTS,BUT THE FIFTH CIRCUIT REVERSED, FINDING THAT
"(THE UTTER BASELESSNESS OF ANY CONCEIVABLE CONTENTION THAT THE
VAGRANCY STATUTES PROHIBITED ANY CONDUCT IN WHICH THESE PERSONS WERE
ENGAGED, MERELY BUTTRESSES THE UNDISPUTED EVIDENCE BEFORE THE TRIAL
COURT WHEN THE ORDER OF REMAND WAS ENTERED THAT THESE PROTECTED ACTS
(I.E., "ATTEMPTS TO ENJOY EQUAL PUBLIC ACCOMMODATIONS IN THE
HATTIESBURG CITY LIBRARY, AND A RESTAURANT IN THE NATIONALLY KNOWN
KRESS STORE") CONSTITUTED THE CONDUCT FOR WHICH THEY WERE THEN AND
THERE BEING ARRESTED."  ACHTENBERG V. MISSISSIPPI, 393 F.2D 468, 474
(C.A. 5TH CIR. 1968).  ALTHOUGH ONE JUDGE DISSENTED ON THE GROUND THAT
MISS ADICKES' CASE WAS NOT PROPERLY REMOVABLE UNDER GEORGIA V. RACHEL,
384 U.S. 780 (1966), HE TOO THOUGHT THAT THE "VAGRANCY CHARGES AGAINST
MISS ADICKES WERE SHOWN TO BE BASELESS AND AN UNSOPHISTICATED
SUBTERFUGE," ID., AT 475. 

/43/  SEE N. 10, SUPRA. 

/44/  ANY NOTION THAT A PRIVATE PERSON IS NECESSARILY IMMUNE FROM
LIABILITY UNDER SEC. 1983 BECAUSE OF THE "UNDER COLOR OF" REQUIREMENT
OF THE STATUTE WAS PUT TO REST BY OUR HOLDING IN UNITED STATES V.
PRICE, SUPRA, SEE N. 7, SUPRA.  THERE, IN THE CONTEXT OF A CONSPIRACY,
THE COURT SAID:  "TO ACT 'UNDER COLOR' OF LAW DOES NOT REQUIRE THAT THE
ACCUSED BE AN OFFICER OF THE STATE.  IT IS ENOUGH THAT HE IS A WILLFUL
PARTICIPANT IN JOINT ACTIVITY WITH THE STATE . . . ,"  ID., AT 794. 
BECAUSE THE CORE OF CONGRESSIONAL CONCERN IN ENACTING SEC. 1983 WAS TO
PROVIDE A REMEDY FOR VIOLATIONS OF THE EQUAL PROTECTION CLAUSE ARISING
FROM RACIAL DISCRIMINATION, WE THINK THAT A PRIVATE PERSON WHO
DISCRIMINATES ON THE BASIS OF RACE WITH THE KNOWLEDGE OF AND PURSUANT
TO A STATE-ENFORCED CUSTOM REQUIRING SUCH DISCRIMINATION, IS A
"PARTICIPANT IN JOINT ACTIVITY WITH THE STATE,"  AND IS ACTING "UNDER
COLOR OF" THAT CUSTOM FOR PURPOSES OF SEC. 1983. 

WE INTIMATE NO VIEWS CONCERNING THE RELIEF THAT MIGHT BE APPROPRIATE
IF A VIOLATION IS SHOWN.  SEE WILLIAMS V. HOT SHOPPES, INC., 110
U.S.APP.D.C. 358, 370-371, 293 F.2D 835, 847-848 (1961) (BAZELON, J.,
DISSENTING).  THE PARTIES HAVE NOT BRIEFED THESE REMEDIAL ISSUES, AND
IF A VIOLATION IS PROVED THEY ARE BEST EXPLORED IN THE FIRST INSTANCE
BELOW IN LIGHT OF THE NEW RECORD THAT WILL BE DEVELOPED ON REMAND.  NOR
DO WE MEAN TO DETERMINE AT THIS JUNCTURE WHETHER THERE ARE ANY DEFENSES
AVAILABLE TO DEFENDANTS IN SEC. 1983 ACTIONS LIKE THE ONE AT HAND.  CF.
PIERSON V. RAY, 386 U.S. 547 (1967). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE BLACK, CONCURRING IN THE JUDGMENT. 

THE PETITIONER, SANDRA ADICKES, BROUGHT SUIT AGAINST THE RESPONDENT,
S.H. KRESS & CO., TO RECOVER DAMAGES FOR ALLEGED VIOLATIONS OF 42
U.S.C. 1983.  IN ONE COUNT OF HER COMPLAINT SHE ALLEGED THAT A POLICE
OFFICER OF THE CITY OF HATTIESBURG, MISSISSIPPI, HAD CONSPIRED WITH
EMPLOYEES OF KRESS TO DEPRIVE HER OF RIGHTS SECURED BY THE CONSTITUTION
AND THAT THIS JOINT ACTION OF A STATE OFFICIAL AND PRIVATE INDIVIDUALS
WAS SUFFICIENT TO CONSTITUTE A VIOLATION OF SEC. 1983.  SHE FURTHER
ALLEGED IN ANOTHER COUNT THAT KRESS' REFUSAL TO SERVE HER WHILE SHE WAS
IN THE COMPANY OF NEGROES WAS ACTION "UNDER COLOR OF" A CUSTOM OF
REFUSING TO SERVE NEGROES AND WHITES TOGETHER IN MISSISSIPPI, AND THAT
THIS ACTION WAS A VIOLATION OF SEC. 1983.  THE TRIAL JUDGE GRANTED A
MOTION FOR SUMMARY JUDGMENT IN FAVOR OF KRESS ON THE CONSPIRACY
ALLEGATION AND, AFTER FULL PRESENTATION OF EVIDENCE BY THE PETITIONER,
GRANTED A MOTION FOR A DIRECTED VERDICT IN FAVOR OF THE RESPONDENT ON
THE CUSTOM ALLEGATION.  BOTH DECISIONS RESTED ON CONCLUSIONS THAT THERE
WERE NO ISSUES OF FACT SUPPORTED BY SUFFICIENT EVIDENCE TO REQUIRE A
JURY TRIAL.  I THINK THE TRIAL COURT AND THE COURT OF APPEALS WHICH
AFFIRMED WERE WRONG IN ALLOWING SUMMARY JUDGMENT ON THE CONSPIRACY
ALLEGATION.  AND-- ASSUMING FOR PRESENT PURPOSES THAT THE TRIAL COURT'S
STATUTORY INTERPRETATION CONCERNING "CUSTOM OR USAGE" WAS CORRECT-- IT
WAS ALSO ERROR TO DIRECT A VERDICT ON THAT COUNT.  IN MY JUDGMENT, ON
THIS RECORD, PETITIONER SHOULD HAVE BEEN PERMITTED TO HAVE THE JURY
CONSIDER BOTH HER CLAIMS. 

SUMMARY JUDGMENTS MAY BE GRANTED ONLY WHEN "THE PLEADINGS,
DEPOSITIONS, ANSWERS TO INTERROGATORIES, AND ADMISSIONS ON FILE,
TOGETHER WITH THE AFFIDAVITS, IF ANY, SHOW THAT THERE IS NO GENUINE
ISSUE AS TO ANY MATERIAL FACT . . . ."  FED. RULE CIV. PROC. 56(C). 
PETITIONER IN THIS CASE ALLEGED THAT SHE WENT INTO KRESS IN THE COMPANY
OF NEGROES AND THAT THE WAITRESS REFUSED TO SERVE HER, STATING "(WE
HAVE TO SERVE THE COLORED, BUT WE ARE NOT GOING TO SERVE THE WHITES
THAT COME IN WITH THEM."  PETITIONER THEN ALLEGED THAT SHE LEFT THE
STORE WITH HER FRIENDS AND AS SOON AS SHE STEPPED OUTSIDE A POLICEMAN
ARRESTED HER AND CHARGED HER WITH VAGRANCY.  ON THE BASIS OF THESE
FACTS SHE ARGUED THAT THERE WAS A CONSPIRACY BETWEEN THE STORE AND THE
OFFICER TO DEPRIVE HER OF FEDERALLY PROTECTED RIGHTS.  THE STORE FILED
AFFIDAVITS DENYING ANY SUCH CONSPIRACY AND THE TRIAL COURT GRANTED THE
MOTION FOR SUMMARY JUDGMENT, CONCLUDING THAT PETITIONER HAD NOT ALLEGED
ANY BASIC FACTS SUFFICIENT TO SUPPORT A FINDING OF CONSPIRACY. 

THE EXISTENCE OR NONEXISTENCE OF A CONSPIRACY IS ESSENTIALLY A
FACTUAL ISSUE THAT THE JURY, NOT THE TRIAL JUDGE, SHOULD DECIDE.  IN
THIS CASE PETITIONER MAY HAVE HAD TO PROVE HER CASE BY IMPEACHING THE
STORE'S WITNESSES AND APPEALING TO THE JURY TO DISBELIEVE ALL THAT THEY
SAID WAS TRUE IN THE AFFIDAVITS.  THE RIGHT TO CONFRONT, CROSS-EXAMINE
AND IMPEACH ADVERSE WITNESSES IS ONE OF THE MOST FUNDAMENTAL RIGHTS
SOUGHT TO BE PRESERVED BY THE SEVENTH AMENDMENT PROVISION FOR JURY
TRIALS IN CIVIL CASES.  THE ADVANTAGES OF TRIAL BEFORE A LIVE JURY WITH
LIVE WITNESSES, AND ALL THE POSSIBILITIES OF CONSIDERING THE HUMAN
FACTORS, SHOULD NOT BE ELIMINATED BY SUBSTITUTING TRIAL BY AFFIDAVIT
AND THE STERILE BARENESS OF SUMMARY JUDGMENT.  "IT IS ONLY WHEN THE
WITNESSES ARE PRESENT AND SUBJECT TO CROSS-EXAMINATION THAT THEIR
CREDIBILITY AND THE WEIGHT TO BE GIVEN THEIR TESTIMONY CAN BE
APPRAISED.  TRIAL BY AFFIDAVIT IS NO SUBSTITUTE FOR TRIAL BY JURY WHICH
SO LONG HAS BEEN THE HALLMARK OF 'EVEN HANDED JUSTICE.'"  POLLER V.
COLUMBIA BROADCASTING, 368 U.S. 464, 473 (1962). 

SECOND, IT WAS ERROR FOR THE TRIAL JUDGE TO DIRECT A VERDICT IN
FAVOR OF THE RESPONDENT ON THE "CUSTOM" COUNT.  THE TRIAL JUDGE
SURVEYED THE EVIDENCE AND CONCLUDED THAT IT WAS INSUFFICIENT TO PROVE
THE EXISTENCE OF A CUSTOM OF NOT SERVING WHITE PEOPLE IN THE COMPANY OF
NEGROES.  HE THEREUPON TOOK THE CASE AWAY FROM THE JURY, DIRECTING A
VERDICT FOR THE RESPONDENT.  THE COURT OF APPEALS AFFIRMED THIS
CONCLUSION.  IN MY OPINION THIS WAS CLEAR ERROR. 

PETITIONER TESTIFIED AT TRIAL AS FOLLOWS: 

     "Q.  DID YOU HAVE OCCASION TO KNOW OF SPECIFIC INSTANCES WHERE

  WHITE PERSONS IN THE COMPANY OF NEGROES WERE DISCRIMINATED

  AGAINST?  A. YES. 

 "Q.  HOW MANY SUCH INSTANCES CAN YOU RECALL?  A. I CAN THINK OF
ABOUT THREE AT THE MOMENT. 

     "Q.  WILL YOU DESCRIBE THE THREE INSTANCES TO US?  A. I KNOW

  THAT PEOPLE WERE TURNED AWAY FROM A WHITE CHURCH, AN INTEGRATED

  GROUP WAS TURNED AWAY FROM A WHITE CHURCH IN HATTIESBURG.  I WAS

NOT PRESENT BUT THIS WAS EXPLAINED TO ME.  I SAW A RABBI BEING

  BEATEN BECAUSE HE WAS IN THE COMPANY OF NEGROES. 

      "Q.  THIS WAS A WHITE RABBI?  A. YES.  AND PEOPLE WERE TURNED

  AWAY FROM A DRUG STORE IN HATTIESBURG, AN INTEGRATED GROUP.  I

  DON'T REMEMBER THE NAME OF THE DRUG STORE. 

     "Q.  ON THE BASIS OF WHAT YOU STUDIED AND ON THE BASIS OF WHAT

  YOU OBSERVED, AND ON THE BASIS OF YOUR CONVERSATIONS WITH OTHER

  PERSONS THERE, DID YOU COME TO A CONCLUSION WITH REGARD TO THE

  CUSTOM AND USAGE WITH REGARD TO THE WHITE COMMUNITY TOWARDS

  SERVING PERSONS, WHITE PERSONS, IN THE COMPANY OF NEGROES?  A.

  YES. 

     "Q.  WHAT WAS THAT CONCLUSION?  A. THE CONCLUSION WAS THAT

WHITE PERSONS-- IT WAS A CUSTOM AND USAGE NOT TO SERVE WHITE

  PERSONS IN THE COMPANY OF NEGROES." 

THIS EVIDENCE, ALTHOUGH WEAKENED BY THE CROSS-EXAMINATION, WAS
SUFFICIENT I THINK, TO REQUIRE THE COURT TO LET THE CASE GO TO THE JURY
AND SECURE PETITIONER'S CONSTITUTIONALLY GUARANTEED RIGHT TO A TRIAL BY
THAT JURY.  SEE GALLOWAY V. UNITED STATES, 319 U.S. 372, 396 (1943)
(BLACK, J., DISSENTING). 

I DO NOT FIND IT NECESSARY AT THIS TIME TO PASS ON THE VALIDITY OF
THE STATUTORY PROVISION CONCERNING "CUSTOM OR USAGE" OR ON THE TRIAL
COURT'S VIEWS, CONCURRED IN BY THE COURT OF APPEALS, ON THE PROPER
INTERPRETATION OF THAT TERM.  ASSUMING THAT THE TRIAL COURT'S
INTERPRETATION WAS CORRECT AND THAT THE PROVISION AS SO INTERPRETED IS
VALID, THERE WAS ENOUGH EVIDENCE IN THIS RECORD TO WARRANT SUBMITTING
THE ENTIRE QUESTION OF CUSTOM OR USAGE TO THE JURY IN ACCORDANCE WITH
INSTRUCTIONS FRAMED TO REFLECT THOSE VIEWS. 

FOR THE FOREGOING REASONS I CONCUR IN THE JUDGMENT REVERSING THE
COURT OF APPEALS AND REMANDING FOR A NEW TRIAL ON BOTH COUNTS. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

        I 

THE STATUTORY WORDS "UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE," 42 U.S.C. 1983, ARE
SERIOUSLY EMASCULATED BY TODAY'S RULING.  CUSTOM, IT IS SAID, MUST HAVE
"THE FORCE OF LAW"; AND "LAW," AS I READ THE OPINION, IS USED IN THE
HAMILTONIAN SENSE.  /1/ 

THE COURT REQUIRES STATE INVOLVEMENT IN THE ENFORCEMENT OF A
"CUSTOM" BEFORE THAT "CUSTOM" CAN BE ACTIONABLE UNDER 42 U.S.C. 1983. 
THAT MEANS, ACCORDING TO THE COURT, THAT "CUSTOM" FOR THE PURPOSES OF
SEC. 1983 "MUST HAVE THE FORCE OF LAW BY VIRTUE OF THE PERSISTENT
PRACTICES OF STATE OFFICIALS."  THAT CONSTRUCTION OF SEC. 1983 IS, TO
BORROW A PHRASE FROM THE FIRST MR. JUSTICE HARLAN, "TOO NARROW AND
ARTIFICIAL."  CIVIL RIGHTS CASES, 109 U.S. 3, 26 (DISSENTING OPINION). 

THE CONSTITUTION AND LAWS" OF THE UNITED STATES.  THERE IS NO MORE
BASIC "RIGHT" THAN THE EXEMPTION FROM DISCRIMINATION ON ACCOUNT OF RACE
- AN EXEMPTION THAT STEMS NOT ONLY FROM THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT BUT ALSO FROM THE THIRTEENTH AMENDMENT AND
FROM A MYRIAD OF "LAWS" ENACTED BY CONGRESS.  AND SO FAR AS SEC. 1983
IS CONCERNED IT IS SUFFICIENT THAT THE DEPRIVATION OF THAT RIGHT BE
"UNDER COLOR" OF "ANY . . . CUSTOM . . . OF ANY STATE."  THE "CUSTOM"
TO BE ACTIONABLE MUST OBVIOUSLY REFLECT MORE THAN THE PREJUDICES OF A
FEW; IT MUST REFLECT THE DOMINANT COMMUNAL SENTIMENT. 

        II 

THE "CUSTOM . . . OF ANY STATE" CAN OF COURSE INCLUDE THE
PREDOMINANT ATTITUDE BACKED BY SOME DIRECT OR INDIRECT SANCTIONS
INSCRIBED IN LAW BOOKS.  THUS IN GARNER V. LOUISIANA, 368 U.S. 157,
ANOTHER RESTAURANT CASE INVOLVING RACIAL DISCRIMINATION, THERE WAS NO
STATE LAW OR MUNICIPAL ORDINANCE THAT IN TERMS REQUIRED SEGREGATION OF
THE RACES IN RESTAURANTS.  BUT SEGREGATION WAS BASIC TO THE STRUCTURE
OF LOUISIANA AS A COMMUNITY AS REVEALED BY A MOSAIC OF LAWS.  ID., AT
179-181 (CONCURRING OPINION). 

THE SAME IS TRUE OF MISSISSIPPI IN THE PRESENT CASE. 

IN 1964, AT THE TIME OF THE DISCRIMINATION PERPETRATED IN THIS CASE,
THERE WERE NUMEROUS MISSISSIPPI LAWS THAT WERE DESIGNED TO CONTINUE A
REGIME OF SEGREGATION OF THE RACES.  THE STATE LEGISLATURE HAD PASSED A
RESOLUTION CONDEMNING THIS COURT'S BROWN V. BOARD OF EDUCATION
DECISIONS, 347 U.S. 483, 349 U.S. 294, AS "UNCONSTITUTIONAL"
INFRINGEMENTS ON STATES' RIGHTS.  MISS.  LAWS 1956, C. 466, SENATE
CONCURRENT RESOLUTION NO. 125.  PART OF THE MISSISSIPPI PROGRAM TO
PERPETUATE THE SEGREGATED WAY OF LIFE WAS THE STATE SOVEREIGNTY
COMMISSION, MISS.  CODE ANN. SEC. 9028-31 ET SEQ. (1956), OF WHICH THE
GOVERNOR WAS CHAIRMAN AND WHICH WAS CHARGED WITH THE DUTY "TO DO AND
PERFORM ANY AND ALL ACTS AND THINGS DEEMED NECESSARY AND PROPER TO
PROTECT THE SOVEREIGNTY OF THE STATE OF MISSISSIPPI . . . FROM
ENCROACHMENT THEREON BY THE FEDERAL GOVERNMENT . . . ."  ID., SEC. 9028
35.  MISS.  CODE ANN. SEC. 4065.3 (1956) REQUIRED "THE ENTIRE EXECUTIVE
BRANCH OF THE GOVERNMENT OF THE STATE OF MISSISSIPPI . . . TO PROHIBIT
BY ANY LAWFUL, PEACEFUL, AND CONSTITUTIONAL MEANS, THE CAUSING OF A
MIXING OR INTEGRATION OF THE WHITE AND NEGRO RACES IN PUBLIC SCHOOLS,
PUBLIC PARKS, PUBLIC WAITING ROOMS, PUBLIC PLACES OF AMUSEMENT,
RECREATION OR ASSEMBLY IN THIS STATE, BY ANY BRANCH OF THE FEDERAL
GOVERNMENT . . . ."  EVERY WORD AND DEED OF A STATE OFFICER, AGENT, OR
EMPLOYEE THAT WAS CONNECTED WITH MAINTAINING SEGREGATED SCHOOLS IN
MISSISSIPPI WAS DEEMED TO BE "THE SOVEREIGN ACT . . . OF THE SOVEREIGN
STATE OF MISSISSIPPI."  ID., SEC. 4065.4 (SUPP. 1968).  IT WAS UNLAWFUL
FOR A WHITE STUDENT TO ATTEND ANY SCHOOL OF HIGH SCHOOL OR LOWER LEVEL
THAT WAS ALSO ATTENDED BY NEGRO STUDENTS.  ID., SEC. 6220.5.  SEPARATE
JUNIOR COLLEGE DISTRICTS WERE ESTABLISHED FOR BLACKS AND WHITES.  ID.,
SEC. 6475-14 (1952).  THE ELLISVILLE STATE SCHOOL FOR THE FEEBLE-MINDED
WAS REQUIRED TO PROVIDE FOR ESPARATE MAINTENANCE OF BLACKS AND WHITES. 
ID., SEC. 6766.  THE STATE INSANE HOSPITAL WAS REQUIRED TO KEEP THE TWO
RACES SEPARATE, ID., SEC. 6883, AS WAS THE SOUTH MISSISSIPPI CHARITY
HOSPITAL.  ID., SEC. 6927.  SEPARATE ENTRANCES WERE REQUIRED TO BE
MAINTAINED AT STATE HOSPITALS FOR BLACK AND WHITE PATIENTS.  ID., SEC.
6973.  IT WAS THE RESPONSIBILITY OF THOSE IN AUTHORITY TO FURNISH A
SUFFICIENT NUMBER OF NEGRO NURSES TO ATTEND NEGRO PATIENTS, BUT THE
NEGRO NURSES WERE TO BE UNDER THE SUPERVISION OF WHITE SUPERVISORS. 
ID., SEC. 6974.  IT WAS UNLAWFUL FOR NEGRO AND WHITE CONVICTS TO BE
CONFINED OR WORKED TOGETHER.  ID., SEC. 7913 (1956).  COUNTY SHERIFFS
WERE REQUIRED TO MAINTAIN SEGREGATED ROOMS IN THE JAILS.  ID., SEC.
4259.  IT WAS UNLAWFUL FOR TAXICAB DRIVERS TO CARRY BLACK AND WHITE
PASSENGERS TOGETHER.  ID., SEC. 3499.  RAILROAD DEPOTS IN CITIES OF
3,000 OR MORE INHABITANTS WERE REQUIRED TO HAVE SEPARATE "CLOSETS" FOR
BLACKS AND WHITES.  ID., SEC. 7848.  AND IT WAS A CRIME TO OVERTHROW
THE SEGREGATION LAWS OF THE STATE.  ID., SEC. 2056(7). 

THE SITUATION WAS THUS SIMILAR TO THAT WHICH EXISTED IN GARNER. 
ALTHOUGH THERE WAS NO LAW THAT IN TERMS REQUIRED SEGREGATION OF THE
RACES IN RESTAURANTS, IT WAS PLAIN THAT THE DISCRIMINATION WAS
PERPETRATED PURSUANT TO A DEEPLY ENTRENCHED CUSTOM IN LOUISIANA THAT
WAS "AT LEAST AS POWERFUL AS ANY LAW."  GARNER V. LOUISIANA, SUPRA, AT
181 (CONCURRING OPINION); CF. ROBINSON V. FLORIDA, 378 U.S. 153, 156. 

        III 

THE "CUSTOM . . . OF ANY STATE," HOWEVER, CAN BE MUCH MORE
PERVASIVE.  IT INCLUDES THE UNWRITTEN COMMITMENT, STRONGER THAN
ORDINANCES, STATUTES, AND REGULATIONS,BY WHICH MEN LIVE AND ARRANGE
THEIR LIVES.  BRONISLAW MALINOWSKI, THE FAMED ANTHROPOLIGIST, IN
SPEAKING OF THE "CAKE OF CUSTOM" OF A MELANESIAN COMMUNITY
"SAFEGUARDING LIFE, PROPERTY AND PERSONALITY" SAID:  /2/ 

     "THERE IS NO RELIGIOUS SANCTION TO THESE RULES, NO FEAR,

  SUPERSTITIOUS OR RATIONAL, ENFORCES THEM, NO TRIBAL PUNISHMENT

  VISITS THEIR BREACH, NOR EVEN THE STIGMA OF PUBLIC OPINION OR

  MORAL BLAME.  THE FORCES WHICH MAKE THESE RULES BINDING WE SHALL

  LAY BARE AND FIND THEM NOT SIMPLE BUT CLEARLY DEFINABLE, NOT TO

  BE DESCRIBED BY ONE WORD OR ONE CONCEPT, BUT VERY REAL NONE THE

  LESS.  THE BINDING FORCES OF MELANESIAN CIVIL LAW ARE TO BE FOUND

  IN THE CONCATENATION OF THE OBLIGATIONS, IN THE FACT THAT THEY

ARE ARRANGED INTO CHAINS OF MUTUAL SERVICES, A GIVE AND TAKE

  EXTENDING OVER LONG PERIODS OF TIME AND COVERING WIDE ASPECTS OF

  INTEREST AND ACTIVITY.  TO THIS THERE IS ADDED THE CONSPICUOUS

  AND CEREMONIAL MANNER IN WHICH MOST OF THE LEGAL OBLIGATIONS HAVE

  TO BE DISCHARGED.  THIS BINDS PEOPLE BY AN APPEAL TO THEIR VANITY

  AND SELF-REGARD, TO THEIR LOVE OF SELF-ENHANCEMENT BY DISPLAY. 

  THUS THE BINDING FORCE OF THESE RULES IS DUE TO THE NATURAL

  MENTAL TREND OF SELF-INTEREST, AMBITION AND VANITY, SET INTO PLAY

BY A SPECIAL SOCIAL MECHANISM INTO WHICH THE OBLIGATORY ACTIONS

  ARE FRAMED." 

THIS CONCEPT OF "CUSTOM" IS, I THINK, UNIVERSAL AND AS RELEVANT HERE
AS ELSEWHERE.  IT MAKES APPARENT THAT OUR PROBLEM UNDER 42 U.S.C. 1983
DOES NOT MAKE OUR SOLE AIM THE SEARCH FOR "STATE ACTION" IN THE
HAMILTONIAN SENSE OF "LAW." 

THAT RESTRICTED KIND OF A SEARCH CERTAINLY IS NOT COMPELLED BY
GRAMMAR.  "OF" IS A WORD OF MANY MEANINGS, ONE OF WHICH INDICATES "THE
THING OR PERSON WHENCE ANYTHING ORIGINATES, COMES, IS ACQUIRED OR
SOUGHT."  7 OXFORD ENGLISH DICTIONARY (DEFINITION III).  THE WORDS
"UNDER COLOR OF ANY . . . CUSTOM . . . OF ANY STATE" DO NO MORE THAN
DESCRIBE THE GEOGRAPHICAL AREA OR POLITICAL ENTITY IN WHICH THE
"CUSTOM" ORIGINATES AND WHERE IT IS FOUND. 

THE PHILOSOPHY OF THE BLACK CODES REACHED MUCH FURTHER THAN THE
SANCTIONS ACTUALLY PRESCRIBED IN THEM.  FEDERAL JUDGES, WHO ENTERED THE
EARLY SCHOOL DESEGREGATION DECREES, OFTEN FELT THE OSTRACISM OF THE
COMMUNITY, THOUGH THE LOCAL "LAW" NEVER EVEN PURPORTED TO PLACE
PENALTIES ON JUDGES FOR DOING SUCH ACTS.  FORTY YEARS AGO IN
WASHINGTON, D.C., A BLACK WHO WAS FOUND AFTER THE SUN SET IN THE
NORTHWEST SECTION OF THE DISTRICT ON OR ABOVE CHEVY CHASE CIRCLE WAS
ARRESTED, THOUGH HIS ONLY "CRIME" WAS WAITING FOR A BUS TO TAKE HIM
HOME AFTER CADDYING AT A PLUSH GOLF COURSE IN THE ENVIRONS.  THERE WAS
NO "LAW" SANCTIONING SUCH AN ARREST.  IT WAS DONE "UNDER COLOR" OF A
"CUSTOM" OF THE NATION'S CAPITAL. 

HARRY GOLDEN /3/  RECENTLY WROTE: 

     "SOUTHERNERS DREW A LINE AND PROHIBITED NEGROES CROSSING IT.

  THEY DOOMED THEMSELVES TO A LIFETIME OF GUARDING THAT LINE,

  FEARING IT WOULD BE BREACHED.  BECAUSE THE WHITE SOUTHERNER MUST

  FOREVER WATCH THAT LINE, THE NEGRO INTRUDES UPON THE WHITE AT

  EVERY LEVEL OF LIFE." 

IS NOT THE MAINTENANCE OF THAT LINE BY HABIT A "CUSTOM?" 

TITLE 42 U.S.C. 1983 WAS DERIVED FROM SEC. 1 OF THE "KU KLUX KLAN
ACT" OF 1871, 17 STAT. 13.  THE "UNDER COLOR OF" PROVISIONS OF SEC. 1
OF THE 1871 ACT, IN TURN, WERE DERIVED FROM SEC. 2 OF THE CIVIL RIGHTS
ACT OF 1866, 14 STAT. 27.  THE MEANING OF "UNDER COLOR OF . . . CUSTOM"
IN THE CONTEXT OF THE 1866 ACT IS THEREFORE RELEVANT TO THE MEANING OF
THAT PHRASE AS IT IS USED IN SEC. 1983, FOR, AS THE COURT STATES, THE
"UNDER COLOR OF" PROVISIONS MEAN THE SAME THING FOR SEC. 1983 AS THEY
DO FOR 18 U.S.C. 242, THE DIRECT DESCENDANT OF SEC. 2 OF THE 1866 ACT. 
/4/  ANTE, AT 152 N. 7. 

A "CUSTOM" OF THE COMMUNITY OR STATE WAS ONE OF THE TARGETS OF THE
CIVIL RIGHTS ACT OF 1866.  SECTION 1, WHICH WE UPHELD IN JONES V.
ALFRED H. MAYER CO., 392 U.S. 409, PROVIDED A CIVIL REMEDY FOR
SPECIFIED PRIVATE ACTS OF RACIAL DISCRIMINATION.  SECTION 2 OF THAT ACT
PROVIDED CRIMINAL SANCTIONS FOR ACTS DONE "UNDER COLOR OF ANY" CUSTOM
OF A STATE.  A CONGRESS THAT IN 1866 WAS NOT BENT ONLY ON "THE
NULLIFICATION OF RACIST LAWS," ID., AT 429, WAS NOT RESTRICTING ITSELF
STRICTLY TO STATE ACTION; IT WAS OUT TO BAN RACIAL DISCRIMINATION
PARTLY AS RESPECTS PRIVATE ACTIONS, PARTLY UNDER STATE LAW IN THE
HAMILTONIAN SENSE, AND PARTLY UNDER THE COLOR OF "CUSTOM." 

OF COURSE, SEC. 2 OF THE 1866 ACT DID NOT COVER PURELY PRIVATE
ACTIONS AS DID SEC. 1 OF THE ACT, AND THAT WAS THE POINT OF OUR
DISCUSSION OF SEC. 2 IN JONES V. ALFRED H. MAYER CO. BUT THE COURT DOES
NOT COME TO GRIPS WITH THE FACT THAT ACTIONS TAKEN "UNDER COLOR OF ANY
. . . CUSTOM" WERE COVERED BY SEC. 2 OF THE 1866 ACT QUITE APART FROM
ACTIONS TAKEN UNDER "COLOR OF ANY STATUTE, ORDINANCE, (OR) REGULATION"-
IN OTHER WORDS, QUITE APART FROM ACTIONS TAKEN UNDER "COLOR OF LAW" IN
THE TRADITIONAL SENSE.  INSTEAD, THE COURT SEEMS TO DIVIDE ALL ACTIONS
INTO TWO GROUPS-- THOSE CONSTITUTING "STATE ACTION" AND THOSE
CONSTITUTING PURELY "PRIVATE ACTION"-- WITH COVERAGE OF SEC. 2 LIMITED
TO THE FORMER.  WHILE SEC. 2 DID NOT REACH "PRIVATE VIOLATIONS," IT DID
REACH DISCRIMINATION BASED ON "COLOR OF CUSTOM," WHICH IS FAR BEYOND
THE REALM OF A MERE PRIVATE PREDILECTION OR PREJUDICE.  AND, DESPITE
THE COURT'S SUGGESTION TO THE CONTRARY, THE USE OF THE TERM "UNDER
COLOR OF LAW" BY THE COURT IN JONES V. ALFRED H. MAYER CO. WAS MERELY A
SHORTHAND REFERENCE FOR ALL THE "UNDER COLOR OF" PROVISIONS IN SEC. 2
AND HAD NO RELEVANCE TO THE SPECIFIC PROBLEM OF DEFINING THE MEANING OF
"UNDER COLOR OF . . . CUSTOM."  /5/ 

WAS BOTTOMED ON THE THIRTEENTH AMENDMENT, FOR IT WAS ENACTED BEFORE THE
FOURTEENTH AMENDMENT WAS ADOPTED.  AS WE STATED IN JONES V. ALFRED H.
MAYER CO.:     "SURELY CONGRESS HAS THE POWER UNDER THE THIRTEENTH
AMENDMENT RATIONALLY TO DETERMINE WHAT ARE THE BADGES AND THE INCIDENTS
OF SLAVERY, AND THE AUTHORITY TO TRANSLATE THAT DETERMINATION INTO
EFFECTIVE LEGISLATION."  ID., AT 440. 

WHILE THE PRIVILEGES AND IMMUNITIES CLAUSE, THE DUE PROCESS CLAUSE,
AND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT ARE EACH
PROTECTIVE OF THE INDIVIDUAL AS AGAINST "STATE" ACTION, THE GUARANTEES
OF THE THIRTEENTH AMENDMENT AND VARIOUS LAWS OF THE UNITED STATES ARE
NOT SO RESTRICTED.  AND SEC. 1983 PROTECTS NOT ONLY FOURTEENTH
AMENDMENT RIGHTS, BUT "ANY RIGHTS . . . SECURED BY THE CONSTITUTION AND
LAWS."  WITH REGARD TO SEC. 1983'S SCOPE OF PROTECTION FOR VIOLATIONS
OF THESE RIGHTS, CONGRESS IN SEC. 1983 AIMED PARTLY AT "STATE" ACTION
AND IT WAS WITH THAT ASPECT OF IT THAT WE WERE CONCERNED IN MONROE V.
PAPE, 365 U.S. 167. 

IF THE WRONG DONE TO THE INDIVIDUAL WAS UNDER "COLOR" OF "CUSTOM"
ALONE, THE INGREDIENTS OF THE CAUSE OF ACTION WERE SATISFIED.  /6/  THE
ADOPTION OF THE FOURTEENTH AMENDMENT EXPANDED THE SUBSTANTIVE RIGHTS
COVERED BY SEC. 1 OF THE 1871 ACT VIS-A-VIS THOSE COVERED BY SEC. 2 OF
THE 1866 ACT.  BUT THAT EXPANDED COVERAGE DID NOT MAKE "STATE ACTION" A
NECESSARY INGREDIENT IN ALL OF THE REMEDIAL PROVISIONS OF SEC. 1 OF THE
1871 ACT.  NEITHER ALL OF SEC. 1 OF THE 1871 ACT NOR ALL OF ITS
SUCCESSOR, SEC. 1983, WAS INTENDED TO BE CONDITIONED BY THE NEED FOR
"STATE"  COMPLICITY. 

MOREOVER, A MAJORITY OF THE COURT HELD IN UNITED STATES V. GUEST,
383 U.S. 745, 761, 774, 782 AND N. 6, THAT SEC. 5 OF THE FOURTEENTH
AMENDMENT ENABLES CONGRESS TO PUNISH INTERFERENCES WITH CONSTITUTIONAL
RIGHTS "WHETHER OR NOT STATE OFFICERS OR OTHERS ACTING UNDER THE COLOR
OF STATE LAW ARE IMPLICATED."  ID., AT 782.  THERE THE STATUTE INVOLVED
(18 U.S.C. 241) PROSCRIBED ALL CONSPIRACIES TO IMPAIR ANY RIGHT
"SECURED" BY THE CONSTITUTION.  A MAJORITY AGREED THAT IN ORDER FOR A
CONSPIRACY TO QUALIFY IT NEED NOT INVOLVE ANY "STATE" ACTION.  BY THE
SAME REASONING THE "CUSTOM . . . OF ANY STATE" AS USED IN SEC. 1983
NEED NOT INVOLVE OFFICIAL STATE DEVELOPMENT, MAINTENANCE, OR
PARTICIPATION.  THE REACH OF SEC. 1983 IS CONSTITUTIONAL RIGHTS,
INCLUDING THOSE UNDER THE FOURTEENTH AMENDMENT; AND CONGRESS RIGHTFULLY
WAS CONCERNED WITH THEIR FULL PROTECTION, WHOEVER MIGHT BE THE
INSTIGATOR OR OFFENDER. 

TO REPEAT, SEC. 1983 WAS "ONE OF THE MEANS WHEREBY CONGRESS
EXERCISED THE POWER VESTED IN IT BY SEC. 5 OF THE FOURTEENTH AMENDMENT
TO ENFORCE THE PROVISIONS OF THAT AMENDMENT."  MONROE V. PAPE, SUPRA,
AT 171.  YET POWERS EXERCISED BY CONGRESS MAY STEM FROM MORE THAN ONE
CONSTITUTIONAL SOURCE.  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 421;
VEAZIE BANK V. FENNO, 8 WALL.  533, 548-549; EDYE V. ROBERTSON, 112
U.S. 580, 595-596; UNITED STATES V. GETTYSBURG ELECTRIC R. CO., 160
U.S. 668, 683.  MOREOVER, SEC. 1983 PROTECTS "ANY RIGHTS" THAT ARE
"SECURED" BY "THE CONSTITUTION AND LAWS" OF THE UNITED STATES, WHICH
MAKES UNMISTAKABLY CLEAR THAT SEC. 1983 DOES NOT COVER, REACH, PROTECT,
OR SECURE ONLY FOURTEENTH AMENDMENT RIGHTS.  THE THIRTEENTH AMENDMENT
AND ITS ENABLING LEGISLATION COVER A WIDE RANGE OF "RIGHTS" DESIGNED TO
RID US OF ALL THE BADGES OF SLAVERY.  AND, AS I HAVE SAID, THE PHRASE
"UNDER COLOR OF ANY . . . CUSTOM"  DERIVES FROM SEC. 2 OF THE 1866 ACT
WHICH RESTED ON THE THIRTEENTH AMENDMENT WHOSE ENFORCEMENT DOES NOT
TURN ON "STATE ACTION."  /7/  THE FAILURE OF THE COURT TO COME TO FACE
WITH THOSE REALITIES LEADS TO THE REGRESSIVE DECISION ANNOUNCED TODAY. 

IT IS TIME WE STOPPED BEING NIGGARDLY IN CONSTRUING CIVIL RIGHTS
LEGISLATION.  IT IS TIME WE KEPT UP WITH CONGRESS AND CONSTRUED ITS
LAWS IN THE FULL AMPLITUDE NEEDED TO RID THEIR ENFORCEMENT OF THE
LINGERING TOLERANCE FOR RACIAL DISCRIMINATION THAT WE SANCTION TODAY. 

/1/  THE FEDERALIST, NO. 15: 

"IT IS ESSENTIAL TO THE IDEA OF A LAW, THAT IT BE ATTENDED WITH A
SANCTION; OR, IN OTHER WORDS, A PENALTY OR PUNISHMENT FOR
DISOBEDIENCE.  IF THERE BE NO PENALTY ANNEXED TO DISOBEDIENCE, THE
RESOLUTIONS OR COMMANDS WHICH PRETEND TO BE LAWS WILL, IN FACT, AMOUNT
TO NOTHING MORE THAN ADVISE OR RECOMMENDATION.  THIS PENALTY, WHATEVER
IT MAY BE, CAN ONLY BE INFLICTED IN TWO WAYS:  BY THE AGENCY OF THE
COURTS AND MINISTERS OF JUSTICE, OR BY MILITARY FORCE; BY THE COERCION
OF THE MAGISTRACY, OR BY THE COERCION OF ARMS." 

/2/  B. MALINOWSKI, CRIME AND CUSTOM IN SAVAGE SOCIETY 66-67
(1932). 

/3/  BOOK GUIDE, BOSTON SUNDAY HERALD TRAVELER, FEBRUARY 22, 1970,
P. 2. 

/4/  SECTION 2 OF THE 1866 ACT, WHICH WE DISCUSSED IN JONES V.
ALFRED H. MAYER CO., 392 U.S. 409, 424-426, MADE IT A CRIMINAL OFFENSE
FOR ANY PERSON "UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION,
OR CUSTOM" TO SUBJECT ANY INHABITANT OF "ANY STATE OR TERRITORY TO THE
DEPRIVATION OF ANY RIGHT SECURED OR PROTECTED BY THIS ACT."  THE DIRECT
DESCENDANT OF SEC. 2 IS 18 U.S.C. 242, WHICH, IN AN EARLIER FORM, WAS
BEFORE THE COURT IN UNITED STATES V. CLASSIC, 313 U.S. 299, AND SCREWS
V. UNITED STATES, 325 U.S. 91.  SECTION 242 PROVIDES: 

"WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM, WILLFULLY SUBJECTS ANY INHABITANT OF ANY STATE, TERRITORY, OR
DISTRICT TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES OR IMMUNITIES
SECURED OR PROTECTED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES,
OR TO DIFFERENT PUNISHMENTS, PAINS, OR PENALTIES, ON ACCOUNT OF SUCH
INHABITANT BEING AN ALIEN, OR BY REASON OF HIS COLOR, OR RACE, THAN ARE
PRESCRIBED FOR THE PUNISHMENT OF CITIZENS, SHALL BE FINED NOT MORE THAN
$1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 


"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

/5/  THE MEANING OF "UNDER COLOR OF . . . CUSTOM" WAS NOT BEFORE THE
COURT IN JONES V. ALFRED H. MAYER CO., AND LANGUAGE FROM THE COURT'S
OPINION IN THAT CASE, TAKEN OUT OF CONTEXT, CAN BE HIGHLY MISLEADING. 
FOR EXAMPLE, THE LANGUAGE QUOTED IN N. 26 OF THE COURT'S OPINION IN
THIS CASE DISTINGUISHED "PRIVATE VIOLATIONS" COVERED BY SEC. 1 OF THE
1866 ACT FROM "DEPRIVATIONS PERPETRATED 'UNDER COLOR OF LAW'" COVERED
BY SEC. 2 OF THE ACT.  THE COURT HERE INTERPRETS THAT USE OF THE PHRASE
"UNDER COLOR OF LAW" TO EXCLUDE ACTIONS TAKEN "UNDER COLOR OF . . .
CUSTOM" SANS STATE ACTION.  A MORE REALISTIC INTERPRETATION OF THE
QUOTED LANGUAGE, HOWEVER, IS THAT "UNDER COLOR OF LAW" WAS MERELY BEING
USED BY THE COURT AS A SHORTHAND PHRASE FOR "UNDER COLOR OF ANY
STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE, OF ANY STATE," AND
THAT THE COURT, WITHOUT IN ANY WAY ADDRESSING THE QUESTION OF THE
MEANING OF "CUSTOM," WAS MERELY USING THE PHRASE TO DISTINGUISH PURELY
PRIVATE VIOLATIONS. 

/6/  THE TRIAL COURT RESTRICTED THE EVIDENCE ON CUSTOM TO THAT WHICH
RELATED TO THE SPECIFIC PRACTICE OF NOT SERVING WHITE PERSONS WHO WERE
IN THE COMPANY OF BLACK PERSONS IN PUBLIC RESTAURANTS.  SUCH EVIDENCE
WAS NECESSARILY LIMITED, AS THE COURT POINTS OUT, BY THE FACT THAT IT
WAS ONLY AFTER THE CIVIL RIGHTS ACT OF 1964 WENT INTO EFFECT THAT
BLACKS COULD BE SERVED IN "'WHITE' RESTAURANTS" IN MISSISSIPPI AT ALL. 
ALTHOUGH I AGREE WITH MY BROTHER BLACK THAT THE EVIDENCE INTRODUCED
UNDER THIS NARROW DEFINITION OF CUSTOM, AS OUTLINED IN HIS OPINION, WAS
SUFFICIENT TO REQUIRE A JURY TRIAL ON THAT QUESTION, I ALSO AGREE WITH
THE COURT'S CONCLUSION THAT THE DEFINITION EMPLOYED BY THE TRIAL COURT
WAS FAR TOO RESTRICTIVE.  PETITIONER ARGUED THAT THE RELEVANT CUSTOM
WAS THE CUSTOM AGAINST INTEGRATION OF THE RACES, AND THAT THE REFUSAL
TO SERVE A WHITE PERSON IN THE COMPANY OF BLACKS WAS MERELY A SPECIFIC
MANIFESTATION OF THAT CUSTOM.  I THINK THAT PETITIONER'S DEFINITION OF
CUSTOM IS THE CORRECT ONE.  THERE IS ABUNDANT EVIDENCE IN THE RECORD OF
A CUSTOM OF RACIAL SEGREGATION IN MISSISSIPPI, AND IN HATTIESBURG IN
PARTICULAR.  IN FACT THE TRIAL JUDGE CONCEDED, "I CERTAINLY DON'T
DISPUTE THAT IT COULD BE SHOWN THAT THERE WAS A CUSTOM AND USAGE OF
DISCRIMINATION IN THE PAST . . . . IT IS CERTAINLY A WAY OF LIFE SO FAR
AS THE PEOPLE IN MISSISSIPPI WERE CONCERNED." 

/7/  THIS CASE CONCERNS ONLY THE MEANING OF "CUSTOM . . . OF ANY
STATE" AS THOSE WORDS ARE USED IN SEC. 1983.  IT DOES NOT INVOLVE THE
QUESTION WHETHER UNDER CERTAIN CIRCUMSTANCES "CUSTOM" CAN CONSTITUTE
STATE ACTION FOR PURPOSES OF THE FOURTEENTH AMENDMENT.  SEE GARNER V.
LOUISIANA, SUPRA, AT 178-179 (CONCURRING OPINION). 

MR. JUSTICE BRENNAN, CONCURRING IN PART AND DISSENTING IN PART. 

PETITIONER CONTENDS THAT IN 1964 RESPONDENT, WHILE ACTING "UNDER
COLOR OF . . . STATUTE" OR "UNDER COLOR OF . . . CUSTOM, OR USAGE" OF
THE STATE OF MISSISSIPPI, SUBJECTED HER TO THE DEPRIVATION OF HER RIGHT
UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT NOT TO BE
DENIED SERVICE IN RESPONDENT'S RESTAURANT DUE TO RACIAL DISCRIMINATION
IN WHICH THE STATE OF MISSISSIPPI WAS INVOLVED, AND THAT THEREFORE
RESPONDENT IS LIABLE TO HER IN DAMAGES UNDER 42 U.S.C. 1983.  TO
RECOVER UNDER SEC. 1983 PETITIONER MUST PROVE TWO SEPARATE AND
INDEPENDENT ELEMENTS:  FIRST, THAT RESPONDENT SUBJECTED HER TO THE
DEPRIVATION OF A RIGHT "SECURED BY THE CONSTITUTION AND LAWS"; AND,
SECOND, THAT WHILE DOING SO RESPONDENT ACTED UNDER COLOR OF A STATUTE,
ORDINANCE, REGULATION, CUSTOM, OR USAGE OF THE STATE OF MISSISSIPPI. 

WHETHER A PERSON SUING UNDER SEC. 1983 MUST SHOW STATE ACTION IN THE
FIRST ELEMENT-- THE DEPRIVATION OF A RIGHT "SECURED BY THE CONSTITUTION
AND LAWS"-- DEPENDS ON THE NATURE OF THE PARTICULAR RIGHT ASSERTED. 
FOR EXAMPLE, A PERSON MAY BE DEPRIVED OF A RIGHT SECURED BY THE
CONSTITUTION AND 42 U.S.C. 1982 BY A PRIVATE PERSON ACTING COMPLETELY
INDEPENDENTLY OF STATE GOVERNMENT.  SEE JONES V. ALFRED H. MAYER CO.,
392 U.S. 409 (1968).  ON THE OTHER HAND, THE CONSTITUTIONAL RIGHT TO
EQUAL PROTECTION OF THE LAWS, UNELABORATED BY ANY STATUTE, CAN BE
VIOLATED ONLY BY ACTION INVOLVING A STATE.  THE DISCUSSION IN UNITED
STATES V. REESE, 92 U.S. 214, 249-252 (1876) (HUNT, J., DISSENTING), OF
VARIOUS CONSTITUTIONAL USES OF THE WORD "STATE" SUGGESTS THAT AS AN
ORIGINAL MATTER "STATE" IN THE EQUAL PROTECTION CLAUSE MIGHT HAVE BEEN
INTERPRETED IN ANY OF SEVERAL WAYS.  MOREOVER, SOME HAVE THOUGHT THAT
HISTORICAL EVIDENCE POINTS TO AN INTERPRETATION COVERING SOME
CATEGORIES OF STATE INACTION IN THE FACE OF WHOLLY PRIVATE CONDUCT,
SEE, E.G., BELL V. MARYLAND, 378 U.S. 226, 286-316 (1964) (GOLDBERG,
J., CONCURRING); R. HARRIS, THE QUEST FOR EQUALITY 24-56 (1960); J.
TENBROEK, EQUAL UNDER LAW 201-239 (1965).  HOWEVER, OUR CASES HAVE HELD
THAT THE EQUAL PROTECTION CLAUSE APPLIES ONLY TO ACTION BY STATE
GOVERNMENT OR OFFICIALS AND THOSE SIGNIFICANTLY INVOLVED WITH THEM. 
SHELLEY V. KRAEMER, 334 U.S. 1, 13 (1948); BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715, 721-722 (1961).  WHETHER AND WHEN A PERSON
SUING UNDER SEC. 1983 MUST SHOW STATE ACTION IN THE SECOND ELEMENT--
ACTION UNDER COLOR OF A STATUTE, ORDINANCE, REGULATION, CUSTOM, OR
USAGE OF A STATE-- DEPENDS ON AN ANALYSIS OF THE TEXT, LEGISLATIVE
HISTORY, AND POLICY OF SEC. 1983.  SEE PART II, INFRA.  THESE TWO
INQUIRIES ARE WHOLLY DIFFERENT, THOUGH IN PARTICULAR CASES A SHOWING OF
STATE ACTION UNDER ONE ELEMENT MAY SUFFICE UNDER THE OTHER. 

IN THE PRESENT CASE PETITIONER ALLEGED AS THE FIRST ELEMENT UNDER
SEC. 1983 A DEPRIVATION OF HER RIGHT TO EQUAL PROTECTION.  THEREFORE,
UNDER OUR CASES, SHE MUST SHOW STATE ACTION.  SHE ASSERTS THAT THERE
WAS STATE ACTION IN TWO DIFFERENT RESPECTS.  FIRST, SHE CONTENDS THAT
THERE WAS A CONSPIRACY BETWEEN RESPONDENT AND LOCAL POLICE TO
DISCRIMINATE AGAINST HER IN RESTAURANT SERVICE BECAUSE SHE, A WHITE
PERSON, SOUGHT SERVICE WHILE ACCOMPANIED BY NEGRO FRIENDS.  THE COURT
TREATS THIS ASPECT OF HER CLAIM IN PART I OF ITS OPINION, WHICH I
JOIN.  /1/  PETITIONER CONTENDS, ALTERNATIVELY, THAT RESPONDENT'S
DISCRIMINATION WAS AUTHORIZED AND ENCOURAGED BY MISSISSIPPI STATUTES. 
TO THAT CONTENTION I NOW TURN. 

        I 

THE STATE-ACTION DOCTRINE REFLECTS THE PROFOUND JUDGMENT THAT
DENIALS OF EQUAL TREATMENT, AND PARTICULARLY DENIALS ON ACCOUNT OF RACE
OR COLOR, ARE SINGULARLY GRAVE WHEN GOVERNMENT HAS OR SHARES
RESPONSIBILITY FOR THEM.  GOVERNMENT IS THE SOCIAL ORGAN TO WHICH ALL
IN OUR SOCIETY LOOK FOR THE PROMOTION OF LIBERTY, JUSTICE, FAIR AND
EQUAL TREATMENT, AND THE SETTING OF WORTHY NORMS AND GOALS FOR SOCIAL
CONDUCT.  THEREFORE SOMETHING IS UNIQUELY AMISS IN A SOCIETY WHERE THE
GOVERNMENT, THE AUTHORITATIVE ORACLE OF COMMUNITY VALUES, INVOLVES
ITSELF IN RACIAL DISCRIMINATION.  ACCORDINGLY, IN THE CASES THAT HAVE
COME BEFORE US THIS COURT HAS CONDEMNED SIGNIFICANT STATE INVOLVEMENT
IN RACIAL DISCRIMINATION, HOWEVER SUBTLE AND INDIRECT IT MAY HAVE BEEN
AND WHATEVER FORM IT MAY HAVE TAKEN.  SEE, E.G., BURTON V. WILMINGTON
PARKING AUTHORITY, SUPRA; EVANS V. NEWTON, 382 U.S. 296 (1966); HUNTER
V. ERICKSON, 393 U.S. 385 (1969).  THESE DECISIONS REPRESENT VIGILANT
FIDELITY TO THE CONSTITUTIONAL PRINCIPLE THAT NO STATE SHALL IN ANY
SIGNIFICANT WAY LEND ITS AUTHORITY TO THE SORDID BUSINESS OF RACIAL
DISCRIMINATION. 

AMONG THE STATE-ACTION CASES THAT MOST NEARLY RESEMBLE THE PRESENT
ONE ARE THE SIT-IN CASES DECIDED IN 1963 AND 1964.  IN PETERSON V. CITY
OF GREENVILLE, 373 U.S. 244 (1963), THE PETITIONERS WERE CONVICTED OF
TRESPASS FOR REFUSING TO LEAVE A LUNCH COUNTER AT A KRESS STORE IN
SOUTH CAROLINA.  A GREENVILLE ORDINANCE AT THAT TIME IMPOSED ON THE
PROPRIETORS OF RESTAURANTS THE DUTY TO SEGREGATE THE RACES IN THEIR
ESTABLISHMENTS, AND THERE WAS EVIDENCE THAT THE KRESS MANAGER WAS AWARE
OF THE ORDINANCE.  WE HELD THAT THE EXISTENCE OF THE ORDINANCE,
TOGETHER WITH A SHOWING THAT THE KRESS MANAGER EXCLUDED THE PETITIONERS
SOLELY BECAUSE THEY WERE NEGROES, WAS SUFFICIENT TO CONSTITUTE
DISCRIMINATORY STATE ACTION IN VIOLATION OF THE FOURTEENTH AMENDMENT: 
"WHEN THE STATE HAS COMMANDED A PARTICULAR RESULT, IT HAS SAVED TO
ITSELF THE POWER TO DETERMINE THAT RESULT AND THEREBY 'TO A SIGNIFICANT
EXTENT' HAS 'BECOME INVOLVED' IN IT, AND, IN FACT, HAS REMOVED THAT
DECISION FROM THE SPHERE OF PRIVATE CHOICE . . . . 

     "CONSEQUENTLY THESE CONVICTIONS CANNOT STAND, EVEN ASSUMING,
AS

  RESPONDENT CONTENDS, THAT THE MANAGER WOULD HAVE ACTED AS HE DID

  INDEPENDENTLY OF THE EXISTENCE OF THE ORDINANCE."  373 U.S.,AT

  248. 

ALTHOUGH THE CASE INVOLVED TRESPASS CONVICTIONS, THE COURT DID NOT
RELY ON THE STATE'S ENFORCEMENT OF ITS NEUTRAL TRESPASS LAWS IN
ANALYZING THE ELEMENTS OF STATE ACTION PRESENT.  NOR DID IT CITE
SHELLEY V. KRAEMER, SUPRA, THE LOGICAL STARTING POINT FOR AN ANALYSIS
IN TERMS OF JUDICIAL ENFORCEMENT.  THE DENIAL OF EQUAL PROTECTION
OCCURRED WHEN THE PETITIONERS WERE DENIED SERVICE IN THE RESTAURANT. 
THAT DENIAL OF EQUAL PROTECTION TAINTED THE SUBSEQUENT CONVICTIONS. 
AND AS WE NOTED IN REITMAN V. MULKEY, 387 U.S. 369, 380 (1967), NO
"PROOF (WAS) REQUIRED THAT THE RESTAURANT OWNER HAD ACTUALLY BEEN
INFLUENCED BY THE STATE STATUTE . . . ."  THUS PETERSON ESTABLISHES THE
PROPOSITION THAT WHERE A STATE COMMANDS A CLASS OF PERSONS TO
DISCRIMINATE ON THE BASIS OF RACE, DISCRIMINATION BY A PRIVATE PERSON
WITHIN THAT CLASS IF STATE ACTION, REGARDLESS OF WHETHER HE WAS
MOTIVATED BY THE COMMAND.  THE COURT'S INTIMATION IN THE PRESENT CASE
THAT PRIVATE DISCRIMINATION MIGHT BE STATE ACTION ONLY WHERE THE
PRIVATE PERSON ACTED UNDER COMPULSION IMPOSED BY THE STATE ECHOES MR.
JUSTICE HARLAN'S ARGUMENT IN PETERSON THAT PRIVATE DISCRIMINATION IS
STATE ACTION ONLY WHERE THE STATE MOTIVATES THE PRIVATE PERSON TO
DISCRIMINATE.  SEE 373 U.S., AT 251-253.  THAT ARGUMENT WAS SQUARELY
REJECTED BY THE COURT IN PETERSON, AND I SEE NO REASON TO RESURRECT IT
NOW. 

THE RATIONALE OF PETERSON WAS EXTENDED IN LOMBARD V. LOUISIANA, 373
U.S. 267 (1963).  THERE THE PETITIONERS WERE CONVICTED OF TRESPASS FOR
REFUSING TO LEAVE A RESTAURANT AFTER BEING DENIED SERVICE.  PRIOR TO
THE ARRESTS THE MAYOR AND SUPERINTENDENT OF POLICE OF NEW ORLEANS HAD
PUBLICLY STATED THAT SIT-IN DEMONSTRATIONS WERE UNDESIRABLE AND THAT
RELEVANT TRESPASS LAWS WOULD BE FULLY ENFORCED.  ALTHOUGH THESE
STATEMENTS, UNLIKE THE ORDINANCE IN PETERSON, WERE NOT DISCRIMINATORY
ON THEIR FACE, THE COURT INTERPRETED THEM AS EVIDENCING STATE SUPPORT
FOR THE SYSTEM OF RACIAL SEGREGATION PREVALENT IN THE PRIVATE
INSTITUTIONS AGAINST WHICH THE PETITIONERS' SIT-IN WAS DIRECTED. 
MOREOVER, THE STATEMENTS, UNLIKE THE ORDINANCE IN PETERSON, DID NOT
COMMAND RESTAURATEURS TO DISCRIMINATE.  A RESTAURATEUR IN NEW ORLEANS,
UNLIKE ONE IN GREENVILLE, COULD INTEGRATE HIS SERVICES WITHOUT
VIOLATING ANY LAW.  ALTHOUGH THERE WAS EVIDENCE THAT THE RESTAURATEUR'S
ACTIONS WERE INFLUENCED BY THE OFFICIAL STATEMENTS, THE COURT DID NOT
RELY ON THIS FACTOR.  THE COURT HELD ON THE BASIS OF THE STATEMENTS
ALONE THAT THE DEGREE OF STATE INVOLVEMENT IN THE PRIVATE
DISCRIMINATORY DENIAL OF SERVICE TO THE PETITIONERS WAS SUFFICIENT TO
MAKE THAT DENIAL STATE ACTION VIOLATIVE OF THE FOURTEENTH AMENDMENT. 
AS IN PETERSON, THE COURT'S ANALYSIS OF STATE ACTION DID NOT TURN ON
THE ACTUAL ENFORCEMENT OF THE STATE'S CRIMINAL LAW.  LOMBARD,
THEREFORE, ADVANCES AT LEAST TWO PROPOSITIONS.  FIRST, AN AUTHORITATIVE
EXPRESSION OF STATE POLICY THAT IS NON-DISCRIMINATORY ON ITS FACE MAY
BE FOUND TO BE DISCRIMINATORY WHEN CONSIDERED AGAINST THE FACTUAL
BACKGROUND OF ITS PROMULGATION.  CF. GUINN V. UNITED STATES, 238 U.S.
347, 364-365 (1915); GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960). 
SECOND, WHERE A STATE POLICY ENFORCES PRIVATELY CHOSEN RACIAL
DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION, IT RENDERS SUCH
PRIVATE DISCRIMINATION UNCONSTITUTIONAL STATE ACTION, REGARDLESS OF
WHETHER THE PRIVATE DISCRIMINATOR WAS MOTIVATED OR INFLUENCED BY IT. 

THE PRINCIPLES OF PETERSON AND LOMBARD WERE EXTENDED FURTHER IN
ROBINSON V. FLORIDA, 378 U.S. 153 (1964).  THAT CASE ALSO INVOLVED
TRESPASS CONVICTIONS ARISING OUT OF A SIT-IN AT A SEGREGATED
RESTAURANT.  AT THE TIME, A FLORIDA REGULATION REQUIRED RESTAURANTS TO
MAINTAIN SEPARATE LAVATORY AND TOILET FACILITIES FOR EACH RACE AS WELL
AS EACH SEX.  HOWEVER, THE REGULATION DID NOT REQUIRE SEGREGATION OF A
RESTAURANT ITSELF; NOR DID THE CONVICTIONS OF THE DEMONSTRATORS RESULT
FROM ANYTHING THEY DID WITH RESPECT TO THE FACILITIES THAT WERE THE
SUBJECT OF THE REGULATION.  NEVERTHELESS, THIS COURT REVERSED THE
CONVICTIONS ON THE GROUND THAT BY VIRTUE OF THE REGULATION THE STATE
HAD BECOME SUFFICIENTLY INVOLVED IN THE PRIVATELY CHOSEN SEGREGATION OF
THE RESTAURANT TO MAKE THAT SEGREGATION STATE ACTION.  THE COURT
COMMENTED: 

"WHILE THESE FLORIDA REGULATIONS DO NOT DIRECTLY AND EXPRESSLY
FORBID RESTAURANTS TO SERVE BOTH WHITE AND COLORED PEOPLE TOGETHER,
THEY CERTAINLY EMBODY A STATE POLICY PUTTING BURDENS UPON ANY
RESTAURANT WHICH SERVES BOTH RACES, BURDENS BOUND TO DISCOURAGE THE
SERVING OF THE TWO RACES TOGETHER."  378 U.S.,AT 156.  ROBINSON
INVOLVED NEITHER A STATE COMMAND OF RESTAURANT SEGREGATION, AS IN
PETERSON, NOR A STATE POLICY OF ENFORCING RESTAURANT SEGREGATION, AS IN
LOMBARD.  IT INVOLVED STATE IMPOSITION OF BURDENS AMOUNTING TO
DISCOURAGEMENT OF PRIVATE INTEGRATION.  IT IS TRUE THAT THE BURDEN IN
THAT CASE HAPPENED TO TAKE THE FORM OF A REQUIREMENT OF SEGREGATED
LAVATORY FACILITIES; BUT ANY OTHER BURDEN-- FOR EXAMPLE, A TAX ON
INTEGRATED RESTAURANTS-- WOULD HAVE SUFFICED TO RENDER THE PRIVATELY
CHOSEN RESTAURANT SEGREGATION UNCONSTITUTIONAL STATE ACTION.  AGAIN,
THE COURT'S FINDING OF STATE ACTION DID NOT DEPEND ON THE USE OF THE
STATE'S TRESPASS LAW.  ROBINSON THUS STANDS FOR THE PROPOSITION THAT
STATE DISCOURAGEMENT OF A PARTICULAR KIND OF PRIVATELY CHOSEN
INTEGRATION RENDERS THAT KIND OF PRIVATELY CHOSEN SEGREGATION
UNCONSTITUTIONAL STATE ACTION. 

THE STEP FROM PETERSON, LOMBARD, AND ROBINSON TO THE PRESENT CASE IS
A SMALL ONE.  INDEED, IT MAY BE NO STEP AT ALL, SINCE THOSE CASES
TOGETHER HOLD THAT A STATE POLICY OF DISCOURAGING PRIVATELY CHOSEN
INTEGRATION OR ENCOURAGING PRIVATELY CHOSEN SEGREGATION, EVEN THOUGH
THE POLICY IS EXPRESSED IN A FORM NONDISCRIMINATORY ON ITS FACE, IS
UNCONSTITUTIONAL AND TAINTS THE PRIVATELY CHOSEN SEGREGATION IT SEEKS
TO BRING ABOUT.  THESE PRECEDENTS SUGGEST THAT THE QUESTION OF STATE
ACTION IN THIS CASE IS WHETHER, AS PETITIONER CONTENDS, MISSISSIPPI
STATUTES DO IN FACT MANIFEST A STATE POLICY OF ENCOURAGING AND
SUPPORTING RESTAURANT SEGREGATION SO THAT RESPONDENT'S ALLEGED
PRIVATELY CHOSEN SEGREGATION IS UNCONSTITUTIONAL STATE ACTION. 

TO ESTABLISH THE EXISTENCE IN 1964 OF A STATE STATUTORY POLICY TO
MAINTAIN SEGREGATION IN RESTAURANT FACILITIES, PETITIONER RELIES
PRINCIPALLY ON MISS.  CODE ANN. SEC. 2046.5 (1956), WHICH, ON ITS FACE,
"AUTHORIZES" AND "EMPOWERS" OWNERS OF HOTELS, RESTAURANTS, AND OTHER
PLACES OF PUBLIC ACCOMMODATION AND AMUSEMENT TO REFUSE TO SERVE
WHOMSOEVER THEY CHOOSE.  /2/  THE DECISION WHETHER TO SERVE A
PARTICULAR INDIVIDUAL IS LEFT TO THE UNFETTERED DISCRETION OF THE
RESTAURANT MANAGEMENT, WHICH MAY REFUSE SERVICE FOR ANY REASON OR FOR
NO REASON.  THUS, WHILE THERE IS NO EXPLICIT COMMAND IN SEC. 2046.5
THAT SEGREGATED EATING FACILITIES BE MAINTAINED, A REFUSAL TO SERVE ON
THE BASIS OF RACE ALONE FALLS CLEARLY WITHIN THE BROAD TERMS OF THE
STATUTE.  THE RESTAURATEUR IS INFORMED, IN ESSENCE, THAT HE MAY
DISCRIMINATE FOR RACIAL OR ANY OTHER REASONS AND THAT HE MAY CALL UPON
THE POLICE POWER OF THE STATE TO MAKE THAT PRIVATE DECISION EFFECTIVE
THROUGH THE TRESPASS SANCTIONS EXPRESSLY INCORPORATED IN SEC. 2046.5. 
IT IS CLEAR THAT, TO THE EXTENT THAT THE STATUTE AUTHORIZES AND
EMPOWERS RESTAURATEURS TO DISCRIMINATE ON THE BASIS OF RACE, IT CANNOT
PASS MUSTER UNDER THE FOURTEENTH AMENDMENT.  BURTON V. WILMINGTON
PARKING AUTHORITY, SUPRA, AT 726-727 (STEWART, J., CONCURRING). 

BURTON INVOLVED A STATUTE THAT PERMITTED A RESTAURATEUR TO REFUSE
SERVICE TO "PERSONS WHOSE RECEPTION OR ENTERTAINMENT BY HIM WOULD BE
OFFENSIVE TO THE MAJOR PART OF HIS CUSTOMERS . . . ."  MR. JUSTICE
STEWART TOOK THE POSITION THAT THE STATE COURTS HAD "CONSTRUED THIS
LEGISLATIVE ENACTMENT AS AUTHORIZING DISCRIMINATORY CLASSIFICATION
BASED EXCLUSIVELY ON COLOR."  365 U.S., AT 726-727.  JUSTICES
FRANKFURTER, HARLAN, AND WHITTAKER, THE ONLY OTHER JUSTICES WHO DEALT
AT LENGTH WITH THE STATUTE, /3/  AGREED THAT IT WOULD VIOLATE THE
FOURTEENTH AMENDMENT IF SO CONSTRUED.  HOWEVER, THEY THOUGHT THE
CONSTRUCTION ADOPTED BY THE STATE COURTS INSUFFICIENTLY CLEAR TO MAKE
POSSIBLE A FINAL DETERMINATION OF THE ISSUE. 

THE LANGUAGE OF SEC. 2046.5 IS CONSIDERABLY BROADER THAN THAT
INVOLVED IN BURTON.  ALTHOUGH SEC. 2046.5 APPARENTLY HAS NOT BEEN
AUTHORITATIVELY INTERPRETED BY THE STATE COURTS, ITS PLAIN LANGUAGE
CLEARLY AUTHORIZES A RESTAURATEUR TO REFUSE SERVICE FOR ANY REASON,
WHICH OBVIOUSLY INCLUDES A REFUSAL BASED UPON RACE.  WERE THERE ANY
CONCEIVABLE DOUBT THAT SEC. 2046.5 WAS INTENDED TO AUTHORIZE, INTER
ALIA, "DISCRIMINATORY CLASSIFICATION BASED EXCLUSIVELY ON COLOR," IT IS
COMPLETELY DISPELLED BY A CONSIDERATION OF THE HISTORICAL CONTEXT IN
WHICH SEC. 2046.5 WAS ENACTED. 

A LEGISLATIVE OR CONSTITUTIONAL PROVISION NEED NOT BE CONSIDERED IN
ISOLATION, BUT MAY BE EXAMINED "IN TERMS OF ITS 'IMMEDIATE OBJECTIVE,'
ITS 'ULTIMATE EFFECT' AND ITS 'HISTORICAL CONTEXT AND THE CONDITIONS
EXISTING PRIOR TO ITS ENACTMENT.'"  REITMAN V. MULKEY, SUPRA, AT 373;
CF. LOMBARD V. LOUISIANA, SUPRA.  THROUGH THE 1950'S AND 1960'S
MISSISSIPPI HAD A "STEEL-HARD, INFLEXIBLE, UNDEVIATING OFFICIAL POLICY
OF SEGREGATION."  UNITED STATES V. CITY OF JACKSON, 318 F.2D 1, 5 (C.A.
5TH CIR. 1963) (WISDOM, J.).  SEE GENERALLY J. SILVER, MISSISSIPPI:
THE CLOSED SOCIETY (1964).  SECTION 2046.5 ITSELF WAS ORIGINALLY
ENACTED IN 1956 IN THE WAKE OF OUR DECISIONS IN BROWN V. BOARD OF
EDUCATION, 347 U.S. 483 (1954); 349 U.S. 294 (1955).  IT WAS PASSED
CONTEMPORANEOUSLY WITH NUMEROUS STATUTES AND RESOLUTIONS CONDEMNING
BROWN, /4/  REQUIRING RACIAL SEGREGATION IN VARIOUS TRANSPORTATION
FACILITIES, /5/  AND COMMITTING THE STATE GOVERNMENT TO CONTINUED
ADHERENCE TO THE PRINCIPLES OF RACIAL SEGREGATION.  /6/  TOGETHER WITH
THESE OTHER STATUTES AND RESOLUTIONS, SEC. 2046.5 IS INDEXED IN THE
1956 MISSISSIPPI SESSION LAWS UNDER "SEGREGATION" AND "RACES."  /7/
PRIOR TO 1956, THE STATE HAD DECLARED UNLAWFUL ANY CONSPIRACY "(TO
OVERTHROW OR VIOLATE THE SEGREGATION LAWS OF THIS STATE . . . ."  /8/
SUBSEQUENT TO THE PASSAGE OF SEC. 2046.5, BREACH OF THE PEACE,
VAGRANCY, AND TRESPASS STATUTES SIMILAR TO SEC. 2046.5 /9/  WERE
ENACTED OR EMPLOYED TO GIVE LOCAL OFFICIALS ADDITIONAL WEAPONS TO
COMBAT ATTEMPTS TO DESEGREGATE PLACES OF PUBLIC ACCOMMODATION.  SEE,
E.G., DILWORTH V. RINER, 343 F.2D 226 (C.A. 5TH CIR. 1965).  /10/ 

ILLUSTRATIVE OF THE PRACTICAL EFFECT OF THESE VARIOUS PROVISIONS IS
THE INCIDENT THAT GAVE RISE TO THIS LITIGATION.  PETITIONER WAS
ARRESTED FOR VAGRANCY SHORTLY AFTER SHE HAD UNSUCCESSFULLY SOUGHT
SERVICE AT RESPONDENT'S STORE.  IN ORDERING DISMISSAL OF THE CHARGES
AFTER REMOVAL OF THE PROSECUTIONS TO THE FEDERAL COURTS, THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT NOTED "(THE UTTER BASELESSNESS OF ANY
CONCEIVABLE CONTENTION THAT THE VAGRANCY STATUTES PROHIBITED ANY
CONDUCT IN WHICH THESE PERSONS WERE ENGAGED"  AND CONCLUDED THAT THE
ARRESTS HAD BEEN MADE SOLELY BECAUSE PETITIONER HAD ATTEMPTED TO
RECEIVE SERVICE AT A CITY LIBRARY AND AT RESPONDENT'S STORE IN THE
COMPANY OF NEGRO FRIENDS.  ACHTENBERG V. MISSISSIPPI, 393 F.2D 468, 474
475 (C.A. 5TH CIR. 1968).  /11/ 

IN SUM, IT MAY BE SAID OF THE VARIOUS STATUTES AND RESOLUTIONS THAT
CONSTITUTED MISSISSIPPI'S RESPONSE TO BROWN THAT "THEY ARE BOUND
TOGETHER AS THE PARTS OF A SINGLE PLAN.  THE PLAN MAY MAKE THE PARTS
UNLAWFUL."  SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 396 (1905)
(HOLMES, J.).  SECTION 2046.5 WAS AN INTEGRAL PART OF THIS SCHEME TO
FOSTER AND ENCOURAGE THE PRACTICE OF SEGREGATION IN PLACES OF PUBLIC
ACCOMMODATION AND ELSEWHERE, WHICH IT FURTHERED BY AUTHORIZING
DISCRIMINATION AND BY AFFORDING THOSE WHO ELECTED TO DISCRIMINATE ON
THE BASIS OF RACE A REMEDY UNDER STATE LAW.  INDEED, IT IS DIFFICULT TO
CONCEIVE OF ANY PURPOSE FOR THE ENACTMENT OF SEC. 2046.5 OTHER THAN TO
MAKE CLEAR THE AUTHORIZATION OF PRIVATE DISCRIMINATION WHERE SUCH
EXPRESS AUTHORIZATION DID NOT EXIST PREVIOUSLY.  CF. MULKEY V. REITMAN,
64 CAL.2D 529, 544, 413 P.2D 825, 835-836 (1966), AFF'D, 387 U.S. 369
(1967). 

JUDGE WATERMAN, DISSENTING IN THE COURT OF APPEALS, STATES THAT
UNDER THE COMMON LAW AN INNKEEPER, AND BY ANALOGY A RESTAURATEUR, DID
NOT HAVE THE RIGHT TO SERVE ONLY WHOMEVER HE WISHED AND TO DISCRIMINATE
ON THE BASIS OF RACE IN SELECTING HIS CUSTOMERS.  409 F.2D 121, 131
133.  SEE BELL V. MARYLAND, 378 U.S. 226, 296-300 (1964) (GOLDBERG, J.,
CONCURRING).  SINCE THE COMMON LAW IS PRESUMED TO APPLY IN MISSISSIPPI,
WESTERN UNION TELEGRAPH CO. V. GOODMAN, 166 MISS.  782, 146 SO. 128
(1933), JUDGE WATERMAN CONCLUDES THAT THE STATE HAS "DRASTICALLY
CHANGED THE COMMON LAW" BY ENACTING SEC. 2046.5.  /12/  409 F.2D, AT
132.  FURTHER SUPPORT FOR THIS VIEW CAN BE FOUND IN THE PREAMBLE TO
SEC. 2046.5 WHICH STATES THAT THAT PROVISION "CONFERS) UPON ANY PERSON
. . . THE FURTHER RIGHT TO REFUSE TO SELL OR RENDER A SERVICE TO ANY
PERSON . . . ."  MISS LAWS 1956, C. 257.  THIS FORMULATION SUGGESTS
THAT THE LEGISLATURE INTENDED TO ALTER THE EXISTING STATE LAW.     IT
IS NOT COMPLETELY CLEAR, HOWEVER, THAT THE COMMON LAW IN REGARD TO
INNKEEPERS AND RESTAURATEURS, AS UNDERSTOOD BY JUDGE WATERMAN, WAS EVER
WIDELY ENFORCED IN MISSISSIPPI IN RACIAL MATTERS.  IN RECONSTRUCTION
TIMES THE STATE ENACTED A CIVIL RIGHTS LAW THAT FORBADE DISCRIMINATION
IN PLACES OF PUBLIC ACCOMMODATION AND AMUSEMENT.  SEE MISS.  LAWS 1873,
C. LXIII.  IT WAS UPHELD AND APPLIED IN DONNELL V. STATE, 48 MISS.  661
(1873).  THAT LAW, HOWEVER, QUICKLY FELL INTO DESUETUDE.  /13/  THUS
SOME QUESTION EXISTS AS TO WHETHER MISSISSIPPI "CHANGED" THE LAW AS IT
EXISTED IN THAT STATE IN 1956.  AT LEAST IT CAN BE SAID, HOWEVER, THAT
MISSISSIPPI, BY ENACTING SEC. 2046.5, CLARIFIED THE STATE LAW, AND IN
DOING SO ELECTED TO PLACE THE FULL AUTHORITY OF THE STATE BEHIND
PRIVATE ACTS OF DISCRIMINATION.  SINCE SEC. 2046.5 AUTHORIZES
DISCRIMINATION ON THE BASIS OF RACE, IT IS INVALID AS APPLIED TO
AUTHORIZE SUCH DISCRIMINATION IN PARTICULAR CASES. 

THE REMAINING QUESTION CONCERNING THIS ASPECT OF THE PRESENT CASE IS
WHAT NEXUS BETWEEN SEC. 2046.5 AND RESPONDENT'S ALLEGED DISCRIMINATION
PETITIONER MUST SHOW TO ESTABLISH THAT THAT DISCRIMINATION IS STATE
ACTION VIOLATIVE OF THE FOURTEENTH AMENDMENT.  OUR PRIOR DECISIONS
LEAVE NO DOUBT THAT THE MERE EXISTENCE OF EFFORTS BY THE STATE, THROUGH
LEGISLATION OR OTHERWISE, TO AUTHORIZE, ENCOURAGE, OR OTHERWISE SUPPORT
RACIAL DISCRIMINATION IN A PARTICULAR FACET OF LIFE CONSTITUTES ILLEGAL
STATE INVOLVEMENT IN THOSE PERTINENT PRIVATE ACTS OF DISCRIMINATION
THAT SUBSEQUENTLY OCCUR.  SEE, E.G., PETERSON V. CITY OF GREENVILLE,
SUPRA; LOMBARD V. LOUISIANA, SUPRA; ROBINSON V. FLORIDA, SUPRA.  /14/
THIS IS SO, AS WE NOTED IN REITMAN V. MULKEY, SUPRA, AT 380,WHETHER OR
NOT THE PRIVATE DISCRIMINATOR WAS ACTUALLY INFLUENCED IN THE COMMISSION
OF HIS ACT BY THE POLICY OF THE STATE.  THUS, WHEN PRIVATE ACTION
CONFORMS WITH STATE POLICY, IT BECOMES A MANIFESTATION OF THAT POLICY
AND IS THEREBY DRAWN WITHIN THE AMBIT OF STATE ACTION.  IN SUM, IF AN
INDIVIDUAL DISCRIMINATES ON THE BASIS OF RACE AND DOES SO IN CONFORMITY
WITH THE STATE'S POLICY TO AUTHORIZE OR ENCOURAGE SUCH DISCRIMINATION,
NEITHER THE STATE NOR THE PRIVATE PARTY WILL BE HEARD TO SAY THAT THEIR
MUTUAL INVOLVEMENT IS OUTSIDE THE PROHIBITIONS OF THE FOURTEENTH
AMENDMENT.  THEREFORE, IN LIGHT OF THE STATUTORY SCHEME INCLUDING SEC.
2046.5, WHICH AUTHORIZED AND ENCOURAGED RESTAURANT SEGREGATION,
PETITIONER WILL FULLY SATISFY THE STATE-ACTION REQUIREMENT OF THE
FOURTEENTH AMENDMENT IF SHE ESTABLISHES THAT SHE WAS REFUSED SERVICE ON
THE BASIS OF RACE. 

I TURN NOW TO THE OTHER ELEMENTS OF PETITIONER'S CASE UNDER SEC.
1983. 

        II 

TITLE 42 U.S.C. 1983 DERIVES FROM SEC. 1 OF THE CIVIL RIGHTS ACT OF
1871, 17 STAT. 13, ENTITLED, "AN ACT TO ENFORCE THE PROVISIONS OF THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, AND FOR
OTHER PURPOSES."  /15/  THE 1871 ACT, POPULARLY KNOWN AS THE "KU KLUX
KLAN ACT," WAS, AS ITS LEGISLATIVE HISTORY MAKES ABSOLUTELY CLEAR, A
RESPONSE TO THE OUTRAGES COMMITTED BY THE KLAN IN MANY PARTS OF THE
SOUTH.  THE CONDITIONS THAT GAVE RISE TO THE ACT WERE DISCUSSED
EXTENSIVELY IN MONROE V. PAPE, 365 U.S. 167, 172-183 (1961).  IN THE
CONTEXT OF THAT CASE WE POINTED OUT THAT ALTHOUGH THE 1871 ACT WAS
ENGENDERED BY THE ACTIVITIES OF THE KLAN, THE LANGUAGE AND PURPOSES OF
SEC. 1983 ARE NOT RESTRICTED TO THAT EVIL.  SEE 365 U.S.,AT 183.  SEE
ALSO UNITED STATES V. MOSLEY, 238 U.S. 383, 388 (1915), WHERE MR.
JUSTICE HOLMES, SPEAKING FOR THE COURT, COMMENTED ON SEC. 6 OF THE
ENFORCEMENT ACT OF 1870, 16 STAT. 141, AS AMENDED, NOW 18 U.S.C. 241,
IN WORDS APPLICABLE TO SEC. 1983: 

"JUST AS THE FOURTEENTH AMENDMENT . . . WAS ADOPTED WITH A VIEW TO
THE PROTECTION OF THE COLORED RACE BUT HAS BEEN FOUND TO BE EQUALLY
IMPORTANT IN ITS APPLICATION TO THE RIGHTS OF ALL, (THE STATUTE) HAD A
GENERAL SCOPE AND USED GENERAL WORDS THAT HAVE BECOME THE MOST
IMPORTANT NOW THAT THE KU KLUX HAVE PASSED AWAY . . . . (WE CANNOT
ALLOW THE PAST SO FAR TO AFFECT THE PRESENT AS TO DEPRIVE CITIZENS OF
THE UNITED STATES OF THE GENERAL PROTECTION WHICH ON ITS FACE (THE
STATUTE) MOST REASONABLY AFFORDS."  STIRRED TO ACTION BY THE WHOLESALE
BREAKDOWN OF PROTECTION OF CIVIL RIGHTS IN THE SOUTH, CONGRESS CARRIED
TO COMPLETION THE CREATION OF A COMPREHENSIVE SCHEME OF REMEDIES--
CIVIL, CRIMINAL, AND MILITARY /16/  -- FOR THE PROTECTION OF
CONSTITUTIONAL RIGHTS FROM ALL MAJOR INTERFERENCE. 

IN THE 1871 ACT, CONGRESS UNDERTOOK TO PROVIDE BROAD FEDERAL CIVIL
REMEDIES AGAINST INTERFERENCE WITH THE EXERCISE AND ACTUAL ENJOYMENT OF
CONSTITUTIONAL RIGHTS, PARTICULARLY THE RIGHT TO EQUAL PROTECTION. 
ANY CONSTITUTIONAL RIGHT BY A PERSON ACTING "UNDER COLOR OF ANY LAW,
STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE OF ANY STATE . . . ." 
CRIMINAL REMEDY AGAINST CONSPIRATORIAL INTERFERENCE WITH ANY PERSON'S
ENJOYMENT OF EQUAL PROTECTION.  SECTION 6 (NOW SEC. 1986) CAST THE NET
OF CIVIL LIABILITY EVEN MORE WIDELY BY PROVIDING A REMEDY AGAINST ANY
PERSON WHO, HAVING THE ABILITY BY REASONABLE DILIGENCE TO PREVENT A
VIOLATION OF SEC. 2, FAILS TO DO SO.  THESE REMEDIES WERE BOLSTERED BY
OTHER CRIMINAL PROVISIONS OF SEC. 2 AND BY PREVIOUSLY ENACTED CRIMINAL
LAWS.  SECTION 2 OF THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27, RE
ENACTED AS SEC. 17 OF THE ENFORCEMENT ACT OF 1870, 16 STAT. 144, AS
AMENDED, NOW 18 U.S.C. 242, PROVIDED A CRIMINAL REMEDY AGAINST WHAT
AMOUNTS TO A VIOLATION OF SEC. 1983.  SECTION 6 OF THE ENFORCEMENT ACT
OF 1870, 16 STAT. 141, AS AMENDED, NOW 18 U.S.C. 241, PROVIDED A
CRIMINAL REMEDY AGAINST CONSPIRACIES TO INTERFERE WITH THE EXERCISE OR
ENJOYMENT OF A FEDERAL RIGHT.  /17/ 

THE HISTORY OF THIS SCHEME OF REMEDIES FOR THE PROTECTION OF CIVIL
RIGHTS WAS, UNTIL VERY RECENTLY, ONE OF VIRTUAL NULLIFICATION BY THIS
COURT.  KEY PROVISIONS WERE DECLARED UNCONSTITUTIONAL OR GIVEN AN
UNDULY NARROW CONSTRUCTION WHOLLY OUT OF KEEPING WITH THEIR PURPOSES. 
/18/  IN UNITED STATES V. HARRIS, 106 U.S. 629 (1883), THE COURT
INVALIDATED THE CRIMINAL PROVISION OF SEC. 2 OF THE KU KLUX KLAN ACT,
THE CRIMINAL ANALOGUE TO SEC. 1985(3), ON THE GROUND THAT CONGRESS WAS
NOT AUTHORIZED BY SEC. 5 OF THE FOURTEENTH AMENDMENT TO PROHIBIT
INTERFERENCE BY PRIVATE PERSONS WITH THE EXERCISE OF FOURTEENTH
AMENDMENT RIGHTS, EXCEPT PERHAPS IN EXTREME AND REMOTE CIRCUMSTANCES. 
ESSENTIAL TO THE HOLDING WAS A RECOGNITION THAT THE LANGUAGE OF SEC. 2
PLAINLY REACHES CONSPIRACIES NOT INVOLVING STATE OFFICIALS.  SEE ALSO
BALDWIN V. FRANKS, 120 U.S. 678 (1887).  THE STATUTE (REV. STAT. SEC.
5519) WAS REPEALED IN 1909.  35 STAT. 1154.  IN COLLINS V. HARDYMAN,
341 U.S. 651 (1951), THE COURT, UNDER THE INFLUENCE OF HARRIS,
CONSTRUED SEC. 1985(3).  POINTING OUT THAT THE LANGUAGE OF SEC. 1985(3)
IS EXACTLY THE SAME (EXCEPT FOR THE REMEDY PROVIDED) AS THE LANGUAGE OF
THE STATUTE CONDEMNED IN HARRIS, THE COURT THOUGHT IT NECESSARY TO READ
IN A LIMITATION OF THE SECTION TO CONSPIRACIES INVOLVING STATE ACTION,
IN ORDER TO SUSTAIN ITS CONSTITUTIONALITY.  THIS LIMITING CONSTRUCTION
NECESSARILY CARRIED OVER TO SEC. 1986, WHOSE SCOPE IS KEYED TO THAT OF
SEC. 1985. 

INDICATED, DEALS GENERALLY WITH CONSPIRACIES TO INTERFERE WITH THE
EXERCISE OF FEDERAL RIGHTS.  IT WAS ESTABLISHED SOON AFTER ITS
ENACTMENT THAT SEC. 241 REACHES CONSPIRACIES AMONG PRIVATE PERSONS TO
INTERFERE WITH "RIGHTS WHICH ARISE FROM THE RELATIONSHIP OF THE
INDIVIDUAL AND THE FEDERAL GOVERNMENT."  UNITED STATES V. WILLIAMS, 341
U.S. 70, 77 (1951) (OPINION OF FRANKFURTER, J.).  SEE, E.G., EX PARTE
YARBROUGH, 110 U.S. 651 (1884); UNITED STATES V. WADDELL, 112 U.S. 76
(1884); LOGAN V. UNITED STATES, 144 U.S. 263 (1892); IN RE QUARLES, 158
U.S. 532 (1895).  HOWEVER, THE CONCEPT OF "ARISING FROM" WAS GIVEN A
VERY NARROW CONSTRUCTION IN UNITED STATES V. CRUIKSHANK, 92 U.S. 542
(1876).  MOREOVER, IN UNITED STATES V. WILLIAMS, SUPRA, THE COURT
DIVIDED 4 TO 4 ON THE QUESTION WHETHER SEC. 241 REACHES PRIVATE
CONSPIRACIES TO INTERFERE WITH THE EXERCISE OF FOURTEENTH AMENDMENT
RIGHTS, WHICH ARISE FROM THE RELATION OF AN INDIVIDUAL AND A STATE. 
THE FOUR MEMBERS OF THE COURT WHO THOUGHT SEC. 241 DOES NOT PROTECT THE
EXERCISE OF FOURTEENTH AMENDMENT RIGHTS PLACED CONSIDERABLE RELIANCE ON
THE ARGUMENT THAT SEC. 241 WOULD BE UNCONSTITUTIONAL IF CONSTRUED
OTHERWISE.  SEE 341 U.S.,AT 77-78.  SEE ALSO HODGES V. UNITED STATES,
203 U.S. 1 (1906). 

ALTHOUGH THE OTHER PRINCIPAL CRIMINAL STATUTE PROTECTING CIVIL
RIGHTS, 18 U.S.C. 242, THE CRIMINAL ANALOGUE TO SEC. 1983, WAS
CONSTRUED TO PROTECT FOURTEENTH AMENDMENT RIGHTS, IT WAS NONETHELESS
HELD CONSTITUTIONAL.  HOWEVER, UNDER THIS STATUTE A VIOLATION CAN BE
FOUND ONLY IF THE DEFENDANT ACTED "WILLFULLY," THAT IS, WITH "A
SPECIFIC INTENT TO DEPRIVE A PERSON OF A FEDERAL RIGHT MADE DEFINITE BY
DECISION OR OTHER RULE OF LAW."  SEE SCREWS V. UNITED STATES, 325 U.S.
91, 103 (1945).  MOREOVER, THIS COURT HAS NEVER HAD OCCASION TO
CONSIDER WHETHER SEC. 242 REACHES WHOLLY NONOFFICIAL CONDUCT. 

THUS, UNTIL VERY RECENTLY, THE CONSTRUCTION OF THE SURVIVING
REMEDIAL CIVIL RIGHTS STATUTES WAS NARROWED OR PLACED IN DOUBT BY A
RESTRICTIVE VIEW OF THE POWER OF CONGRESS UNDER SEC. 5 OF THE
FOURTEENTH AMENDMENT.  BUT THAT VIEW OF CONGRESSIONAL POWER HAS NOW
BEEN COMPLETELY REJECTED BY THIS COURT. 

IN UNITED STATES V. GUEST, 383 U.S. 745 (1966), AND UNITED STATES V.
PRICE, 383 U.S. 787 (1966), THE COURT EXPRESSLY HELD THAT SEC. 241 DOES
PROTECT FOURTEENTH AMENDMENT RIGHTS, THEREBY SQUARELY RESOLVING THE
ISSUE THAT DIVIDED THE COURT IN WILLIAMS.  BECAUSE THE CONSPIRACY IN
GUEST WAS ALLEGED TO HAVE BEEN CARRIED OUT BY PRIVATE PERSONS ACTING IN
CONJUNCTION WITH STATE OFFICIALS, /19/  THE COURT FOUND IT UNNECESSARY
TO CONSIDER WHETHER SEC. 241 WOULD BE CONSTITUTIONAL IF CONSTRUED TO
REACH WHOLLY PRIVATE CONSPIRACIES TO INTERFERE WITH THE EXERCISE OF
FOURTEENTH AMENDMENT RIGHTS.  HOWEVER, TO PUT THE POINT BEYOND DOUBT,
SIX MEMBERS OF THE COURT IN GUEST EXPRESSLY STATED THEIR VIEW THAT
CONGRESS HAS POWER UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT TO PROTECT
FOURTEENTH AMENDMENT RIGHTS AGAINST INTERFERENCE BY PRIVATE PERSONS,
WITHOUT REGARD TO STATE INVOLVEMENT IN THE PRIVATE INTERFERENCE.  SEE
UNITED STATES V. GUEST, SUPRA, AT 761-762 (OPINION OF CLARK, J., JOINED
BY BLACK AND FORTAS, JJ.)  774-786 (OPINION OF BRENNAN, J., JOINED BY
WARREN, C. J., AND DOUGLAS, J.).  THIS GENERAL VIEW OF CONGRESSIONAL
POWER UNDER SEC. 5 WAS EXPRESSLY ADOPTED BY THE COURT IN KATZENBACH V.
MORGAN, 384 U.S. 641 (1966), WHERE WE SAID: 

     "BY INCLUDING SEC. 5 THE DRAFTSMEN SOUGHT TO GRANT TO
CONGRESS,

  BY A SPECIFIC PROVISION APPLICABLE TO THE FOURTEENTH AMENDMENT,

  THE SAME BROAD POWERS EXPRESSED IN THE NECESSARY AND PROPER

  CLAUSE, ART. I, SEC. 8, CL. 18 . . . . CORRECTLY VIEWED, SEC. 5

  IS A POSITIVE GRANT OF LEGISLATIVE POWER AUTHORIZING CONGRESS TO

  EXERCISE ITS DISCRETION IN DETERMINING WHETHER AND WHAT

  LEGISLATION IS NEEDED TO SECURE THE GUARANTEES OF THE FOURTEENTH

  AMENDMENT."  384 U.S.,AT 650-651. 

SEE ALSO SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301 (1966).  /20/ 

THUS THE HOLDING OF HARRIS AND THE CIVIL RIGHTS CASES, 109 U.S. 3
(1883), THAT CONGRESS CANNOT UNDER SEC. 5 PROTECT THE EXERCISE OF
FOURTEENTH AMENDMENT RIGHTS FROM PRIVATE INTERFERENCE HAS BEEN
OVERRULED.  SEE UNITED STATES V. GUEST, SUPRA, AT 782-783 (OPINION OF
BRENNAN, J.).  CONSEQUENTLY, THE INTERPRETATION OF THE CIVIL RIGHTS
STATUTES NEED NO LONGER BE WARPED BY UNWARRANTED CONCERN THAT CONGRESS
LACKS POWER UNDER SEC. 5 TO REACH CONDUCT BY PERSONS OTHER THAN PUBLIC
OFFICIALS.  THERE IS NO DOUBT THAT SEC. 1983 PROTECTS FOURTEENTH
AMENDMENT RIGHTS.  SEE MONROE V. PAPE, SUPRA, AT 170-171; ID., AT 205
206 (OPINION OF FRANKFURTER, J.).  ACCORDINGLY, THE ONLY SUBSTANTIAL
QUESTION IN THIS BRANCH OF THE PRESENT CASE IS WHETHER SEC. 1983 WAS
INTENDED BY CONGRESS TO REACH NONOFFICIAL CONDUCT OF THE KIND AT ISSUE
HERE. 

PETITIONER CONTENDS THAT RESPONDENT'S DISCRIMINATION AGAINST HER WAS
WITHIN THE SCOPE OF SEC. 1983 ON EITHER OF TWO GROUNDS.  FIRST, SHE
CLAIMS THAT RESPONDENT ACTED UNDER COLOR OF MISSISSIPPI STATUTORY LAW,
AND IN PARTICULAR MISSISSIPPI CODE SEC. 2046.5.  SECOND, SHE CLAIMS
THAT RESPONDENT ACTED UNDER COLOR OF A CUSTOM OR USAGE OF MISSISSIPPI,
WHICH PRESCRIBED SEGREGATION OF THE RACES IN DINING FACILITIES. 

PETITIONER'S CLAIM THAT RESPONDENT ACTED UNDER COLOR OF MISSISSIPPI
STATUTORY LAW IS SIMILAR TO HER CLAIM THAT RESPONDENT'S ACTION
CONSTITUTED STATE ACTION.  INDEED, THE TWO CLAIMS WOULD BE PROVED BY
THE SAME FACTUAL SHOWING IF RESPONDENT WERE A STATE OFFICIAL WHO ACTED
BY VIRTUE OF HIS OFFICIAL CAPACITY OR A PRIVATE PARTY ACTING IN
CONJUNCTION WITH SUCH STATE OFFICIAL, FOR WHEN A STATE OFFICIAL ACTS BY
VIRTUE OF HIS OFFICIAL CAPACITY IT IS PRECISELY THE USE OR MISUSE OF
STATE AUTHORITY THAT MAKES THE ACTION STATE ACTION.  HOWEVER, WHEN A
PRIVATE PARTY ACTS ALONE, /21/  MORE MUST BE SHOWN, IN MY VIEW, TO
ESTABLISH THAT HE ACTS "UNDER COLOR OF" A STATE STATUTE OR OTHER
AUTHORITY THAN IS NEEDED TO SHOW THAT HIS ACTION CONSTITUTES STATE
ACTION. 

AS I POINTED OUT IN PART I, SUPRA, UNDER THE CONSTITUTIONAL
PRINCIPLE THAT NO STATE SHALL HAVE ANY SIGNIFICANT INVOLVEMENT WHATEVER
IN RACIAL DISCRIMINATION, AND UNDER OUR PRIOR CASES, THE MERE EXISTENCE
OF A STATE POLICY AUTHORIZING, ENCOURAGING, OR OTHERWISE SUPPORTING
RACIAL DISCRIMINATION IN A PARTICULAR KIND OF SERVICE IS SUFFICIENT TO
RENDER PRIVATE DISCRIMINATION IN THAT SERVICE STATE ACTION.  HOWEVER,
THE STATUTORY TERM "UNDER COLOR OF ANY STATUTE" HAS A NARROWER MEANING
THAN THE CONSTITUTIONAL CONCEPT OF "STATE ACTION."  THE "UNDER COLOR"
LANGUAGE OF SEC. 1983 SERVES GENERALLY TO LIMIT THE KINDS OF
CONSTITUTIONAL VIOLATION FOR WHICH THE SECTION PROVIDES A REMEDY.  TO
UNDERSTAND HOW THAT LANGUAGE APPLIES TO PRIVATE PERSONS, IT IS HELPFUL
TO CONSIDER ITS APPLICATION TO STATE OFFICIALS.  IN OTHER LEGAL USAGE,
THE WORD "COLOR," AS IN "COLOR OF AUTHORITY," "COLOR OF LAW," "COLOR OF
OFFICE," "COLOR OF TITLE," AND "COLORABLE," SUGGESTS A KIND OF HOLDING
OUT AND MEANS "APPEARANCE, SEMBLANCE, OR SIMULACRUM," BUT NOT
NECESSARILY THE REALITY.  SEE H. BLACK, LAW DICTIONARY 331-332 (REV.
4TH ED. 1968).  HOWEVER, AS THE WORD APPEARS IN SEC. 1983, IT COVERS
BOTH ACTIONS ACTUALLY AUTHORIZED BY A STATE, SEE MYERS V. ANDERSON, 238
U.S. 368 (1915); NIXON V. HERNDON, 273 U.S. 536 (1927); LANE V. WILSON,
307 U.S. 268 (1939), AND MISUSE OF STATE AUTHORITY IN WAYS NOT INTENDED
BY THE STATE, SEE, E.G., MONROE V. PAPE, SUPRA; SCREWS V. UNITED
STATES, SUPRA, AT 111.  IN SOME OF THESE LATTER SITUATIONS THERE IS A
HOLDING OUT IN THAT THE OFFICIAL USES HIS ACTUAL AUTHORITY TO GIVE THE
APPEARANCE THAT HE HAS AUTHORITY TO TAKE THE PARTICULAR ACTION HE IS
TAKING.  IN OTHER CASES THE ABUSE OF POWER IS SO PALPABLE THAT THE
VICTIM OR ANY OBSERVER MAY WELL BE AWARE THAT THE OFFICIAL IS EXCEEDING
HIS AUTHORITY, SO THAT ANY HOLDING OUT OF AUTHORITY WOULD BE WHOLLY
TRANSPARENT.  IN THESE CASES THE MISUSE OF AUTHORITY ALONE IS ENOUGH TO
WARRANT RECOVERY.  SEE, E.G., MONROE V. PAPE, SUPRA; UNITED STATES V.
CLASSIC, 313 U.S. 299, 326 (1941); CATLETTE V. UNITED STATES, 132 F.2D
902 (C.A. 4TH CIR. 1943).  THUS, A PUBLIC OFFICIAL ACTING BY VIRTUE OF
HIS OFFICIAL CAPACITY ALWAYS ACTS UNDER COLOR OF A STATE STATUTE OR
OTHER LAW, WHETHER OR NOT HE OVERTLY RELIES ON THAT AUTHORITY TO
SUPPORT HIS ACTION, AND WHETHER OR NOT THAT ACTION VIOLATES STATE LAW. 
A PRIVETE PERSON ACTS "UNDER COLOR OF" A STATE STATUTE OR OTHER LAW
WHEN HE, LIKE THE OFFICIAL, IN SOME WAY ACTS CONSCIOUSLY PURSUANT TO
SOME LAW THAT GIVES HIM AID, COMFORT, OR INCENTIVE, CF. GRIFFIN V.
MARYLAND, 378 U.S. 130 (1964); FLEMMING V. SOUTH CAROLINA ELEC.  & GAS
CO., 224 F.2D 752 (C.A. 4TH CIR. 1955), APPEAL DISMISSED, 351 U.S. 901
(1956); OR WHEN HE ACTS IN CONJUNCTION WITH A STATE OFFICIAL, AS IN
UNITED STATES V. PRICE, SUPRA.  IN THE PRESENT CASE MISSISSIPPI
STATUTORY LAW DID AUTHORIZE AND ENCOURAGE RESPONDENT TO DISCRIMINATE
AGAINST PETITIONER ON THE BASIS OF RACE.  THEREFORE PETITIONER CAN
ESTABLISH THAT RESPONDENT ACTED "UNDER COLOR OF" MISSISSIPPI STATUTORY
LAW BY SHOWING THAT RESPONDENT WAS AWARE OF THAT BODY OF LAW AS
PRESCRIBING, ENCOURAGING, AUTHORIZING, LEGITIMATING, EFFECTUATING, OR
OTHERWISE SUPPORTING ITS REFUSAL TO SERVE PETITIONER.  THE VICE OF
ACTION UNDER COLOR OF STATUTE EXISTS WHEREVER THE PRIVATE DISCRIMINATOR
CONSCIOUSLY DRAWS FROM A STATE STATUTE ANY KIND OF SUPPORT FOR HIS
DISCRIMINATION.  THEREFORE, IT IS IRRELEVANT THAT PETITIONER WAS NOT
ARRESTED UNDER THE TRESPASS PROVISION OF SEC. 2046.5. 

PETITIONER'S SECOND CONTENTION, THAT RESPONDENT DISCRIMINATED
AGAINST HER "UNDER COLOR OF (A) CUSTOM, OR USAGE" OF MISSISSIPPI,
PRESENTS MORE DIFFICULTY.  I HAVE FOUND FEW PRIOR CASES CONSTRUING THE
PHRASE "UNDER COLOR OF CUSTOM, OR USAGE" IN THE CONTEXT OF SEC. 1983;
/22/  AND IT HAS NOT BEEN LITIGATED UNDER 18 U.S.C. 242, THOUGH IN THAT
CONTEXT IT WAS BRIEFLY DISCUSSED IN THE OPINIONS IN JONES V. ALFRED H.
MAYER CO., SUPRA.  IT IS TRUE THAT ON OCCASION THIS COURT HAS SUMMED UP
THE STATUTORY LANGUAGE "UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY" AS MEANING
"UNDER COLOR OF LAW," AND AS INCORPORATING A REQUIREMENT OF STATE
ACTION AKIN TO THAT OF THE EQUAL PROTECTION CLAUSE.  SEE, E.G., UNITED
STATES V. PRICE, SUPRA, AT 794 N. 7.  BUT THE LOOSE AND VAGUE PHRASE
"UNDER COLOR OF LAW" HAS ALWAYS BEEN USED BY THE COURT IN THE CONTEXT
OF CASES IN WHICH RELIANCE WAS PUT ON SOMETHING OTHER THAN "CUSTOM OR
USAGE."  THE COURT HAS NEVER HELD, OR EVEN INTIMATED, THAT "CUSTOM OR
USAGE" MEANS "LAW."  INDEED, MR. JUSTICE HARLAN, DISSENTING IN JONES V.
ALFRED H. MAYER CO., SUPRA, USED A DIFFERENT FORMULA IN SUMMARIZING THE
"UNDER COLOR OF"  LANGUAGE IN SEC. 242; HE SAID IT REFERRED TO "ACTION
TAKEN PURSUANT TO STATE OR COMMUNITY AUTHORITY."  392 U.S.,AT 454. 
MOREOVER, HE REFERRED TO "DISCRIMINATIONS WHICH WERE LEGITIMATED BY A
STATE OR COMMUNITY SANCTION SUFFICIENTLY POWERFUL TO DESERVE THE NAME
'CUSTOM.'"  ID., AT 457.  SEE ALSO MONROE V. PAPE, SUPRA, AT 193
(HARLAN, J., CONCURRING) ("ABUSES SO RECURRENT AS TO AMOUNT TO 'CUSTOM,
OR USAGE'").  THUS, "UNDER COLOR OF LAW" HAS NOT BEEN THE ONLY FORMULA
USED BY MEMBERS OF THIS COURT SO SUMMARIZE THE PARALLEL LANGUAGE IN
SECS. 242 AND 1983.  /23/  IT IS ALSO TRUE THAT THE PHRASE "UNDER COLOR
OF LAW" OCCURS IN THE DEBATES ON THE 1871 ACT, SEE N. 25, INFRA.  BUT
SINCE IN THE ORIGINAL VERSION OF SEC. 1983, AS INTRODUCED AND ENACTED,
THE WORD "LAW" WAS THE FIRST WORD IN THE ENUMERATION FOLLOWING "COLOR
OF,"  /24/  THE USE OF "UNDER COLOR OF LAW" AS A HANDY FORMULA IN
DEBATE IS READILY EXPLAINED.  MORE IMPORTANTLY, THE PHRASE HAS NEVER
BEEN TAKEN TO BE A CONSIDERED, COMPREHENSIVE, AND AUTHORITATIVE
SUMMATION OF THE PROVISIONS OF SEC. 1983.  AS THIS COURT SAID OVER A
CENTURY AGO AND HAS SINCE REPEATED, "IN EXPOUNDING A STATUTE, WE MUST
NOT BE GUIDED BY A SINGLE SENTENCE OR MEMBER OF A SENTENCE, BUT LOOK TO
THE PROVISIONS OF THE WHOLE LAW, AND TO ITS OBJECT AND POLICY."  UNITED
STATES V. BOISDORE'S HEIRS, 8 HOW.  113, 122 (1849) (TANEY, C. J.);
MASTRO PLASTICS CORP. V. NLRB, 350 U.S. 270, 285 (1956); RICHARDS V.
UNITED STATES, 369 U.S. 1, 11 (1962); DANDRIDGE V. WILLIAMS, 397 U.S.
471, 517 (1970) (MARSHALL, J., DISSENTING). 

THE LEGISLATIVE HISTORY OF SEC. 1983 PROVIDES NO DIRECT GUIDANCE FOR
THE INTERPRETATION OF THE PHRASE "CUSTOM OR USAGE."  MUCH OF THE
LENGTHY DEBATE CONCERNED THE TRUTH OF THE ALLEGATIONS OF KKK OUTRAGES
AND THE CONSTITUTIONALITY AND WISDOM OF OTHER SECTIONS OF THE ACT. 
LITTLE ATTENTION WAS GIVEN TO THE PRECISE WORDING OF SEC. 1983, AND
THERE WAS NO SUSTAINED DISCUSSION OF THE MEANING OF "CUSTOM OR USAGE." 
/25/  CONSEQUENTLY, IN MY VIEW, WE ARE CALLED ON TO ANALYZE THE
PURPOSES CONGRESS SOUGHT TO ACHIEVE BY ENACTING SEC. 1983 IN THE
CONTEXT OF THE CIVIL RIGHTS ACT OF 1871.  ONLY BY RELATING THE PHRASE
"CUSTOM OR USAGE" TO CONGRESSIONAL PURPOSES CAN WE PROPERLY INTERPRET
AND APPLY THE STATUTORY LANGUAGE TODAY. 

IN SEEKING TO DETERMINE THE PURPOSES OF SEC. 1983, IT IS IMPORTANT
TO RECALL THAT IT ORIGINATED AS PART OF A STATUTE DIRECTED AGAINST THE
DEPREDATIONS OF A PRIVATE ARMY.  CONG. GLOBE, 42D CONG., 1ST SESS., 339
(REMARKS OF REP. KELLEY, A SUPPORTER OF THE BILL).  THE KLAN WAS
RECOGNIZED BY CONGRESS TO BE A WIDESPREAD CONSPIRACY "OPERATING WHOLLY
OUTSIDE THE LAW," JONES V. ALFRED H. MAYER CO., SUPRA, AT 436, AND
EMPLOYING A VARIETY OF METHODS TO COERCE NEGROES AND OTHERS TO FORGO
EXERCISE OF CIVIL RIGHTS THEORETICALLY PROTECTED BY THE CONSTITUTION
AND FEDERAL STATUTES.  IN SOME AREAS OF THE SOUTH THE KLAN WAS STRONG
ENOUGH TO PARALYZE THE OPERATIONS OF STATE GOVERNMENT.  AS
REPRESENTATIVE COBURN, A SUPPORTER OF THE BILL, NOTED: 

     "SUCH, THEN, IS THE CHARACTER OF THESE OUTRAGES-- NUMEROUS,

  REPEATED, CONTINUED FROM MONTH TO MONTH AND YEAR TO YEAR,

  EXTENDING OVER MANY STATES; ALL SIMILAR IN THEIR CHARACTER, AIMED

  AT A SIMILAR CLASS OF CITIZENS; ALL PALLIATED OR EXCUSED OR

  JUSTIFIED OR ABSOLUTELY DENIED BY THE SAME CLASS OF MEN.  NOT

  LIKE THE LOCAL OUTBREAKS SOMETIMES APPEARING IN PARTICULAR

  DISTRICTS, WHERE A MOB OR A BAND OF REGULATORS MAY FOR A TIME

  COMMIT CRIMES AND DEFY THE LAW, BUT HAVING EVERY MARK AND

  ATTRIBUTE OF A SYSTEMATIC, PERSISTENT, WELL-DEFINED ORGANIZATION,

  WITH A FIXED PURPOSE, WITH A REGULAR PLAN OF ACTION. 

   "THE DEVELOPMENT OF THIS CONDITION OF AFFAIRS WAS NOT THE WORK

  OF A DAY OR EVEN OF A YEAR.  IT COULD NOT BE, IN THE NATURE OF

  THINGS; IT MUST BE SLOW; ONE FACT TO BE PILED ON ANOTHER, WEEK

  AFTER WEEK, YEAR AFTER YEAR . . . . 

     "SUCH OCCURRENCES SHOW THAT THERE IS A PRE-CONCERTED AND

  EFFECTIVE PLAN BY WHICH THOUSANDS OF MEN ARE DEPRIVED OF THE

  EQUAL PROTECTION OF THE LAWS.  THE ARRESTING POWER IS FETTERED,

  THE WITNESSES ARE SILENCED, THE COURTS ARE IMPOTENT, THE LAWS ARE

  ANNULLED, THE CRIMINAL GOES FREE, THE PERSECUTED CITIZEN LOOKS IN

  VAIN FOR REDRESS.  THIS CONDITION OF AFFAIRS EXTENDS TO COUNTIES

  AND STATES; IT IS, IN MANY PLACES, THE RULE, AND NOT THE

  EXCEPTION."  CONG. GLOBE, 42D CONG., 1ST SESS., 458-459. 

SEE ALSO ID., AT APP. 172 (REMARKS OF SEN. POOL, A SUPPORTER); ID., AT
653 (REMARKS OF SEN. OSBORN, A SUPPORTER); ID., AT 155-160 (REMARKS OF
SEN. SHERMAN, A SUPPORTER).  THUS THE MISCHIEF THAT THE LEGISLATION OF
1871 WAS INTENDED TO REMEDY DERIVED, NOT FROM STATE ACTION, BUT FROM
CONCERTED "PRIVATE" ACTION THAT THE STATES WERE UNWILLING OR UNABLE TO
COPE WITH. 

SENATOR SCHURZ, A MODERATE OPPONENT WHO ON BEHALF OF THE PRESIDENT
HAD PERSONALLY INVESTIGATED THE DISORDERS IN THE SOUTH, SUMMED UP THE
CONDITION TO BE DEALT WITH: 

     "THE REAL EVIL IN THE SOUTHERN STATES YOU WILL FIND IN THE

  BAFFLED PRO-SLAVERY TENDENCY PREVAILING THERE; IN A DISEASED

  PUBLIC SENTIMENT WHICH PARTLY VENTS ITSELF IN VIOLENT ACTS,

  PARTLY WINKS AT THEM, AND PARTLY PERMITS ITSELF TO BE OVERAWED BY

  THEM.  THAT PUBLIC SENTIMENT IS NOT ONLY TERRORIZING TIMID

  PEOPLE, BUT IT IS CORRUPTING THE JURY-BOX, IT IS OVERAWING THE

  WITNESS-STAND, AND IT IS THUS OBSTRUCTING THE FUNCTIONS OF

JUSTICE."  ID., AT 687. 

REPRESENTATIVE (LATER PRESIDENT) GARFIELD, A MODERATE SUPPORTER,
FOCUSED MORE SPECIFICALLY ON ONE OF THE PRINCIPAL EVILS SEC. 1983 WAS
DESIGNED TO REMEDY: 

"(THE CHIEF COMPLAINT IS NOT THAT THE LAWS OF THE STATE ARE UNEQUAL,
BUT THAT EVEN WHERE THE LAWS ARE JUST AND EQUAL ON THEIR FACE, YET, BY
A SYSTEMATIC MALADMINISTRATION OF THEM, OR A NEGLECT OR REFUSAL TO
ENFORCE THEIR PROVISIONS, A PORTION OF THE PEOPLE ARE DENIED EQUAL
PROTECTION UNDER THEM."  ID., AT APP. 153. 

ACCORDINGLY, IN HIS VIEW, SEC. 1983 WAS INTENDED TO PROVIDE A REMEDY
IN FEDERAL COURT FOR, INTER ALIA, CERTAIN DENIALS OF EQUAL PROTECTION
THAT OCCURRED EVEN IN STATES WITH JUST AND EQUAL LAWS WHEN SOME PRIVATE
PERSONS ACTED AGAINST OTHERS AND THE STATE FAILED TO PROVIDE
PROTECTION.  THUS, BOTH THE HOUSE AND THE SENATE WERE QUITE AWARE THAT
THE TASK BEFORE THEM WAS TO DEVISE A SCHEME OF REMEDIES AGAINST
PRIVATELY INSTIGATED INTERFERENCE WITH THE EXERCISE OF CONSTITUTIONAL
RIGHTS, THROUGH TERROR, FORCE OF NUMBERS, CONCERTED ACTION, AND OTHER
MEANS. 

THE DEBATES IN BOTH HOUSES ALSO MAKE IT CLEAR THAT MANY OF THOSE WHO
GAVE THE MOST CAREFUL ATTENTION TO THE CONDITIONS THAT CALLED FOR THE
BILL, TO THE PROVISIONS OF THE BILL ITSELF, AND TO THE PROBLEMS OF
CONSTITUTIONALITY AND POLICY IT PRESENTED, DID NOT THINK THAT IN SEC.
1983 THE FEDERAL GOVERNMENT UNDERTOOK TO PROVIDE A FEDERAL REMEDY FOR
EVERY ISOLATED ACT BY PRIVATE PERSONS THAT AMOUNTED TO INTERFERENCE
WITH THE EXERCISE OF A CONSTITUTIONAL RIGHT.  SEE, E.G., ID., AT 578
579 (REMARKS OF SEN. TRUMBULL, AN OPPONENT); ID., AT 514 (REMARKS OF
REP. POLAND, A SUPPORTER AND CONFEREE); ID., AT APP. 153 (REMARKS OF
REP. GARFIELD); ID., AT APP. 79 (REMARKS OF REP. A. PERRY, A
SUPPORTER).  /26/  WHERE, FOR EXAMPLE, THE INJURY TO FEDERAL RIGHTS WAS
THE RESULT OF A GENUINELY INDIVIDUAL ACT OF PRIVATE PREJUDICE, THEN IT
COULD NOT BE SAID THAT THE STATE AND LOCAL AUTHORITIES WERE FAILING TO
GIVE EQUAL PROTECTION BY COUNTENANCING MAJOR INTERFERENCE WITH THE
EXERCISE OF FEDERAL RIGHTS.  INDEED, IN MOST INSTANCES IT COULD RIGHTLY
BE SAID THAT THE ACTS OF DISCRIMINATION WERE ISOLATED PRECISELY BECAUSE
THE STATE WAS AFFIRMATIVELY FULFILLING ITS OBLIGATION TO AFFORD EQUAL
PROTECTION.  IN SUCH CIRCUMSTANCES NO USEFUL PURPOSE WOULD BE SERVED BY
PROVIDING A FEDERAL REMEDY FOR THE ISOLATED WRONG, AND THE RESULTING
FEDERAL INTRUSION INTO STATE AFFAIRS WOULD BE UNJUSTIFIED. 

NEAR THE CONCLUSION OF THE DEBATE, REP. GARFIELD OBSERVED: 

"I BELIEVE, MR. SPEAKER, THAT WE HAVE AT LAST SECURED A BILL,

  TRENCHANT IN ITS PROVISIONS, THAT REACHES DOWN INTO THE VERY

  HEART OF THE KU KLUX ORGANIZATION, AND YET IS SO GUARDED AS TO

  PRESERVE INTACT THE AUTONOMY OF THE STATES, THE MACHINERY OF THE

  STATE GOVERNMENTS, AND THE MUNICIPAL ORGANIZATIONS ESTABLISHED

  UNDER STATE LAWS."  ID., AT 808. 

THIS STATUTE, "TRENCHANT" BUT MEASURED, PROVIDED A SCHEME OF THREE
CIVIL REMEDIES, CURRENTLY CODIFIED IN SECS. 1983, 1985, AND 1986.  IN
VIEW OF THE PURPOSES THESE REMEDIES WERE DESIGNED TO ACHIEVE, SEC. 1983
WOULD BE READ TOO NARROWLY IF IT WERE RESTRICTED TO ACTS OF STATE
OFFICIALS AND THOSE ACTING IN CONCERT WITH THEM.  CONGRESS DID NOT SAY,
"EVERY STATE OFFICIAL AND OTHERS ACTING IN CONCERT WITH HIM . . .";
CONGRESS SAID, "(ANY (NOW EVERY) PERSON WHO, UNDER COLOR . . . ." 
SIMILARLY, IT WOULD BE READ TOO BROADLY IF INTERPRETED TO REACH ACTS OF
PURELY INDIVIDUAL DISCRIMINATION.  AS I READ SEC. 1983 TOGETHER WITH
THE OTHER SECTIONS, AGAINST THE BACKGROUND OF THE CONGRESSIONAL
DEBATES, I UNDERSTAND THEM TO PROTECT THE EXERCISE OF CONSTITUTIONAL
RIGHTS BY REACHING THREE KINDS OF INTERFERENCE THAT ARE SUFFICIENTLY
"MAJOR" IN THEIR EFFECTS TO HAVE WARRANTED CONGRESSIONAL ACTION. 

THE FIRST CATEGORY IS THAT INVOLVING ACTION UNDER COLOR OF AUTHORITY
DERIVED FROM STATE GOVERNMENT AND THIS CATEGORY OF INVASIONS IS CLEARLY
WITH SEC. 1983.  WHERE STATE OFFICIALS OR PRIVATE PERSONS ACTING
CONSCIOUSLY WITH STATE SUPPORT PARTICIPATE IN THE INTERFERENCE WITH THE
EXERCISE OF FEDERAL RIGHTS, THE INTERFERENCE ASSUMES A FAR GRAVER CAST
THAN IT OTHERWISE WOULD HAVE, AND THE AUTHORITY OF THE STATE IS BROUGHT
INTO CONFLICT WITH THE AUTHORITY OF THE CONSTITUTION.  SEE, E.G.,
MONROE V. PAPE, SUPRA, AT 238 (OPINION OF FRANKFURTER, J.).     THE
SECOND CATEGORY IS THAT INVOLVING CONSPIRACY, WHICH IS WITHIN THE AMBIT
OF SEC. 1985.  IT IS WELL RECOGNIZED IN THE CRIMINAL LAW THAT
CONSPIRATORIAL AGREEMENTS FOR CONCERTED ACTION PRESENT AGGRAVATED
DANGERS TO SOCIETY, SEE UNITED STATES V. RABINOWICH, 238 U.S. 78, 88
(1915); PINKERTON V. UNITED STATES, 328 U.S. 640 644 (1946); KRULEWITCH
V. UNITED STATES, 336 U.S. 440, 448-449 (1949) (JACKSON, J.,
CONCURRING); NOTE, DEVELOPMENTS IN THE LAW-- CRIMINAL CONSPIRACY, 72
HARV.L.REV.  920, 923-924 (1959), AND FOR THIS GENERAL REASON, AS
EXEMPLIFIED IN THE ACTIVITIES OF THE KU KLUX KLAN, CONGRESS PROVIDED
FOR A CIVIL REMEDY AGAINST CONSPIRATORIAL INTERFERENCE WITH THE RIGHT
TO EQUAL PROTECTION.  /27/     THE THIRD CATEGORY IS THAT WHERE, IN THE
ABSENCE OF THE OVERT ELEMENTS OF A CONSPIRACY, CONSTITUTIONAL RIGHTS
ARE VIOLATED BY WIDESPREAD HABITUAL PRACTICES OR CONVENTIONS REGARDED
AS PRESCRIBING NORMS FOR CONDUCT, AND SUPPORTED BY COMMON CONSENT, OR
OFFICIAL OR UNOFFICIAL COMMUNITY SANCTIONS-- IN SHORT, CUSTOMS AND
USAGES.  WHERE VIOLATION OF CONSTITUTIONAL RIGHTS IS CUSTOMARY, THE
VIOLATION IS, BY DEFINITION, WIDESPREAD AND ENDURING, AND THEREFORE
WORTHY OF CONGRESSIONAL RESPONSE.  AS I READ SEC. 1983, THAT RESPONSE
WAS MADE IN THE PROVISION OF A REMEDY AGAINST 

"(EVERY PERSON WHO, UNDER COLOR OF ANY . . . CUSTOM, OR USAGE, OF
ANY STATE . . . SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE
UNITED STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE
DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION . . . ."  /28/ 

THE EXCERPTS FROM THE CONGRESSIONAL DEBATE THAT I HAVE QUOTED MAKE
CLEAR THAT CONGRESS WANTED A CIVIL REMEDY, NOT ONLY AGAINST
CONSPIRATORIAL VIOLENCE, BUT ALSO AGAINST THE PERHAPS MORE SUBTLE BUT
POTENTIALLY MORE VIRULENT CUSTOMARY INFRINGEMENTS OF CONSTITUTIONAL
RIGHTS.  THE KU KLUX KLAN WAS AN EXTREME REFLECTION OF BROADLY HELD
ATTITUDES TOWARD NEGROES AND LONGSTANDING PRACTICES OF DENYING THEM
RIGHTS THAT THE CONSTITUTION SECURED FOR ALL PEOPLE.  THE FUNDAMENTAL
EVIL WAS A "DISEASED PUBLIC SENTIMENT" REFLECTED IN MULTIFARIOUS
EFFORTS TO CONFINE NEGROES IN THEIR FORMER STATUS OF INFERIORITY. 
ACCORDINGLY, A STATUTE DESIGNED TO REACH "DOWN INTO THE VERY HEART OF
THE KU KLUX ORGANIZATION" HAD TO DEAL WITH THE WIDESPREAD
MANIFESTATIONS OF THAT DISEASED PUBLIC SENTIMENT.  RESPECT FOR
CONSTITUTIONAL RIGHTS WAS TO BE "EMBODIED NOT ONLY IN THE LAWS, BUT
INTRENCHED IN THE DAILY HABITS OF THE AMERICAN PEOPLE . . . ."  CONG.
GLOBE, 42D CONG., 1ST SESS., 339 (REMARKS OF REP. KELLEY).  CONGRESS
COULD NOT LEGISLATE POPULAR SENTIMENTS, BUT IN PROVIDING GENERALLY IN
THE KU KLUX KLAN ACT FOR THE PROTECTION OF CONSTITUTIONAL RIGHTS
AGAINST MAJOR TYPES OF INTERFERENCE IT COULD, AND I THINK IT DID IN
SEC. 1983, PROVIDE A REMEDY AGAINST VIOLATIONS THAT IN PARTICULAR
STATES WERE SO COMMON AS TO BE CUSTOMARY. 

AS THIS COURT RECENTLY SAID IN CONSTRUING ANOTHER OF THE EARLY CIVIL
RIGHTS STATUTES, "WE THINK THAT HISTORY LEAVES NO DOUBT THAT, IF WE ARE
TO GIVE (THE STATUTE) THE SCOPE THAT ITS ORIGINS DICTATE, WE MUST
ACCORD IT A SWEEP AS BROAD AS ITS LANGUAGE."  UNITED STATES V. PRICE,
SUPRA, AT 801.  THE LANGUAGE OF SEC. 1983 IMPOSES NO OBSTACLE TO AN
INTERPRETATION CARRYING OUT THE CONGRESSIONAL PURPOSES I HAVE
IDENTIFIED.  I THINK IT CLEARLY POSSIBLE FOR A PRIVATE PERSON OR ENTITY
LIKE RESPONDENT TO "SUBJECT" A PERSON OR "(CAUSE HIM) TO BE SUBJECTED .
. . TO THE DEPRIVATION" OF A CONSTITUTIONAL RIGHT, AS THOSE QUOTED
WORDS ARE USED IN SEC. 1983.  IN MONROE V. PAPE, SUPRA, WE HELD THAT A
CAUSE OF ACTION WAS STATED UNDER SEC. 1983 BY AN ALLEGATION THAT POLICE
OFFICERS INVADED PETITIONERS' HOME IN VIOLATION OF THE FOURTH AND
FOURTEENTH AMENDMENTS.  CERTAINLY IF "DEPRIVATION" IN SEC. 1983 MEANS
SOMETHING LIKE "EXTINGUISHMENT," THEN NO CAUSE OF ACTION COULD HAVE
BEEN STATED, FOR NO POLICEMAN, NOR EVEN ANY STATE GOVERNMENT AS A
WHOLE, CAN EXTINGUISH A CONSTITUTIONAL RIGHT, AT LEAST NOT WHILE THIS
COURT SITS.  CF. PANHANDLE OIL CO. V. KNOX, 277 U.S. 218, 223 (HOLMES,
J., DISSENTING).  /29/  A CONSTITUTIONAL RIGHT CAN BE EXTINGUISHED ONLY
BY AMENDMENT OF THE CONSTITUTION ITSELF.  IF "DEPRIVATION" MEANT
"EXTINGUISHMENT," SEC. 1983-- AND ALSO 18 U.S.C. 242-- WOULD BE A
NULLITY.  THUS ALL THE CASES FINDING VIOLATIONS OF THESE SECTIONS MUST
BE TAKEN TO HAVE HELD THAT "DEPRIVATION" AS USED IN THESE STATUTES
MEANS, NOT "EXTINGUISHMENT," BUT RATHER SOMETHING LIKE "VIOLATION,"
"DENIAL," OR "INFRINGEMENT."  CF. JONES V. ALFRED H. MAYER CO., SUPRA,
AT 420-421; CONG. GLOBE, 39TH CONG., 1ST SESS., 605 (REMARKS OF SEN.
TRUMBULL, MANAGER OF 1866 CIVIL RIGHTS BILL, ON SEC. 242).  AS THE
PRESENT CASE ILLUSTRATES, IT IS POSSIBLE FOR PRIVATE ACTION IN SOME
CIRCUMSTANCES TO CONSTITUTE STATE ACTION VIOLATING A CONSTITUTIONAL
RIGHT, AND SUCH ACTION AMOUNTS TO "DEPRIVATION" WITHIN THE MEANING OF
SEC. 1983. 

IN DISCUSSING PETITIONER'S CONTENTION THAT RESPONDENT ACTED UNDER
COLOR OF STATE LAW I HAVE ALREADY INDICATED MY UNDERSTANDING OF THE
WORDS "UNDER COLOR OF."  SEE SUPRA, AT 211-212.  I WOULD APPLY THAT
UNDERSTANDING HERE AS WELL.  I READ "CUSTOM, OR USAGE" IN SEC. 1983 TO
MEAN WHAT IT HAS USUALLY MEANT AT COMMON LAW-- A WIDESPREAD AND
LONGSTANDING PRACTICE, COMMONLY REGARDED AS PRESCRIBING NORMS FOR
CONDUCT, AND BACKED BY SANCTIONS.  SEE, E.G., STROTHER V. LUCAS, 12
PET. 410, 437, 445-446 (1838); UNITED STATES V. ARREDONDO, 6 PET. 691,
713-714 (1832).  THE SANCTIONS NEED NOT BE IMPOSED BY THE STATE.  A
CUSTOM CAN HAVE THE EFFECT OR FORCE OF LAW EVEN WHERE IT IS NOT BACKED
BY THE FORCE OF THE STATE.  SEE, E.G., ADAMS V. OTTERBACK, 15 HOW. 
539, 545 (1854); MERCHANTS' BANK V. STATE BANK, 10 WALL.  604, 651
423.  /30/  THE POWER OF CUSTOM TO GENERATE AND IMPOSE RULES OF
CONDUCT, EVEN WITHOUT THE SUPPORT OF THE STATE, HAS LONG BEEN
RECOGNIZED.  SEE, E.G., MERCER COUNTY V. HACKET, 1 WALL.  83, 95
(1864); 1 W. BLACKSTONE, COMMENTARIES *64; B. CARDOZO, THE NATURE OF
THE JUDICIAL PROCESS 58-64 (1921).  /31/ 

OF COURSE, A CUSTOM OR USAGE IS WITHIN SEC. 1983 ONLY IF IT IS A
CUSTOM OF A "STATE OR TERRITORY."  IT WAS RECOGNIZED DURING THE DEBATE
ON THE KU KLUX KLAN ACT THAT THE WORD "STATE" DOES NOT REFER ONLY TO
STATE GOVERNMENT.  IN TEXAS V. WHITE, 7 WALL.  700, 720-721 (1869),
/32/  DECIDED JUST TWO YEARS BEFORE THE DEBATE, THIS COURT SAID OF THE
WORD "STATE" AS USED IN THE CONSTITUTION: 

     "IT DESCRIBES SOMETIMES A PEOPLE OR COMMUNITY OF INDIVIDUALS

  UNITED MORE OR LESS CLOSELY IN POLITICAL RELATIONS, INHABITING

  TEMPORARILY OR PERMANENTLY THE SAME COUNTRY; OFTEN IT DENOTES

  ONLY THE COUNTRY OR TERRITORIAL REGION, INHABITED BY SUCH A

  COMMUNITY; NOT UNFREQUENTLY IT IS APPLIED TO THE GOVERNMENT UNDER

  WHICH THE PEOPLE LIVE; AT OTHER TIMES IT REPRESENTS THE COMBINED

  IDEA OF PEOPLE, TERRITORY, AND GOVERNMENT. 

     "IT IS NOT DIFFICULT TO SEE THAT IN ALL THESE SENSES THE

  PRIMARY CONCEPTION IS THAT OF A PEOPLE OR COMMUNITY.  THE PEOPLE,

  IN WHATEVER TERRITORY DWELLING, EITHER TEMPORARILY OR

  PERMANENTLY, AND WHETHER ORGANIZED UNDER A REGULAR GOVERNMENT, OR

 UNITED BY LOOSER AND LESS DEFINITE RELATIONS, CONSTITUTE THE

  STATE. 

     "THIS IS UNDOUBTEDLY THE FUNDAMENTAL IDEA UPON WHICH THE

  REPUBLICAN INSTITUTIONS OF OUR OWN COUNTRY ARE ESTABLISHED . . .

  . 

     "IN THE CONSTITUTION THE TERM STATE MOST FREQUENTLY EXPRESSES

  THE COMBINED IDEA JUST NOTICED, OF PEOPLE, TERRITORY, AND

  GOVERNMENT.  A STATE, IN THE ORDINARY SENSE OF THE CONSTITUTION,

 IS A POLITICAL COMMUNITY OF FREE CITIZENS, OCCUPYING A TERRITORY

  OF DEFINED BOUNDARIES, AND ORGANIZED UNDER A GOVERNMENT

  SANCTIONED AND LIMITED BY A WRITTEN CONSTITUTION, AND ESTABLISHED

  BY THE CONSENT OF THE GOVERNED." 

THIS LANGUAGE WAS QUOTED IN THE DEBATE.  SEE CONG. GLOBE, 42D CONG.,
1ST SESS., APP. 80 (REMARKS OF REP. A. PERRY).  WHEN THE WORD "STATE"
IN SEC. 1983 IS SO UNDERSTOOD, THEN IT IS NOT AT ALL STRAINED OR
TORTURED-- INDEED, IT IS PERFECTLY NATURAL-- TO READ "CUSTOM" AS
MEANING SIMPLY "CUSTOM" IN THE ENUMERATION "STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE."  MOREOVER, I AGREE WITH
THE COURT THAT JUST AS AN ORDINANCE CAN BE STATE ACTION, SO, TOO, CAN A
CUSTOM OF A SUBDIVISION OF A STATE BE A CUSTOM "OF (A) STATE" FOR
PURPOSES OF SEC. 1983; AND IN MY VIEW A CUSTOM OF THE PEOPLE LIVING IN
A SUBDIVISION IS A CUSTOM OF THE SUBDIVISION.  THUS A PERSON ACTS UNDER
COLOR OF A CUSTOM OR USAGE OF A STATE WHEN THERE IS AMONG THE PEOPLE OF
A STATE OR SUBDIVISION OF A STATE A WIDESPREAD AND LONGSTANDING
PRACTICE REGARDED AS PRESCRIBING NORMS FOR CONDUCT AND SUPPORTED BY
COMMUNITY SENTIMENT OR SANCTIONS, AND A PERSON ACTS IN ACCORDANCE WITH
THIS CUSTOM EITHER FROM A BELIEF THAT THE NORMS IT PRESCRIBES AUTHORIZE
OR REQUIRE HIS CONDUCT OR FROM A BELIEF THAT THE COMMUNITY AT LARGE
REGARDS IT AS AUTHORIZING OR REQUIRING HIS CONDUCT.  /33/ 

THE COURT ESCHEWS ANY ATTEMPT TO INTERPRET SEC. 1983 AGAINST THE
BACKGROUND OF A RATIONAL SCHEME OF CONGRESSIONAL PURPOSES.  INSTEAD IT
RELIES BASICALLY ON THREE SETS OF MATERIALS TO SUPPORT ITS RESTRICTIVE
INTERPRETATION OF THE STATUTE.  FIRST ARE CASES; SOME MAKE CASUAL USE
OF THE VAGUE PHRASE "UNDER COLOR OF LAW" AS A SUMMATION OF THE "UNDER
COLOR" LANGUAGE OF SEC. 1983, AND THE REST INTERPRET THE SIGNIFICANCE
OF CUSTOM EITHER UNDER AN ERRONEOUS THEORY OF CONSTITUTIONAL LAW OR
OUTSIDE THE SPECIFIC CONTEXT OF SEC. 1983 ALTOGETHER.  I HAVE ALREADY
SHOWN WHY THESE CASES ARE HARDLY RELEVANT, MUCH LESS CONTROLLING,
HERE.  SEE SUPRA, AT 213-214 AND N. 22.  THE COURT'S SECOND SET OF
AUTHORITIES CONSISTS OF THREE QUOTATIONS FROM THE LEGISLATIVE HISTORY
PURPORTING TO EXPLAIN THE SCOPE OF SEC. 1983.  I HAVE ALREADY SHOWN
THAT SUCH QUOTATIONS CANNOT BE SET UP AS A RELIABLE GUIDE TO
INTERPRETATION.  SEE N. 25, SUPRA.  GIVEN THE DEMONSTRABLE LACK OF
CONSENSUS AMONG THE DEBATERS ON THIS PRECISE ISSUE, IT IS HIGHLY
MISLEADING TO SELECT TWO OR THREE STATEMENTS ARGUABLY FAVORABLE TO ONE
VIEW AND PRONOUNCE THEM AUTHORITATIVE.  MOREOVER, AS I HAVE ALREADY
INDICATED, SEE N. 25, SUPRA, THE REMARKS OF REPRESENTATIVE SHELLABARGER
AND SENATOR EDMONDS CONSIST MERELY OF A HANDY FORMULA FOR A DEBATE NOT
DIRECTED TO MATTERS OF DRAFTSMANSHIP, AND ARE THEMSELVES SUBJECT TO
VARYING INTERPRETATION. 

FINALLY, THE COURT DWELLS ON THE RELATIVE LACK OF CONTROVERSY OVER
SEC. 1983 IN CONTRAST TO THE HEATED DEBATE OVER SEC. 2 OF THE 1871
ACT.  HOWEVER, DESPITE SENATOR EDMUNDS' COMPLACENT PREDICTION, SEC.
1983 WAS OPPOSED, AND OPPOSED VIGOROUSLY.  SENATOR JOHNSTON COMMENTED,
"THE SENATOR FROM VERMONT (SENATOR EDMUNDS) SAID THAT THERE WOULD BE NO
OBJECTION TO THE FIRST SECTION OF THE BILL.  THAT SECTION, IN MY VIEW,
HAS ONLY THE SLIGHT OBJECTION OF BEING UNCONSTITUTIONAL."  CONG. GLOBE,
42D CONG., 1ST SESS., APP. 215.  REPRESENTATIVE MCHENRY CALLED SEC.
1983 AN "OUTRAGE," A "FLAGRANT INFRACTION" OF THE CONSTITUTION.  ID.,
AT 429.  REPRESENTATIVE EDWARD RICE CHARACTERIZED IT AS BRINGING "LAMBS
TO THE SLAUGHTER"; IT WAS, HE SAID, "A PROVISION FOR DRAGGING PERSONS
FROM THEIR HOMES, FROM THEIR NEIGHBORS, AND FROM THE VICINAGE OF THE
WITNESSES FOR THE REDRESS OF PRIVATE GRIEVANCES TO THE FEDERAL
COURTS."  ID., AT 395.  SEE ALSO ID., AT APP. 216-217 (REMARKS OF SEN.
THURMAN). 

MOREOVER, THE COURT DOES NOT ADEQUATELY CHARACTERIZE THE CONTROVERSY
OVER SEC. 2 OF THE ACT.  AS ORIGINALLY PROPOSED, SEC. 2 WOULD HAVE MADE
A FEDERAL CRIME OF ANY CONSPIRACY IN A STATE TO COMMIT AN ACT THAT IF
COMMITTED ON A FEDERAL ENCLAVE WOULD CONSTITUTE "MURDER, MANSLAUGHTER,
MAYHEM, ROBBERY, ASSAULT AND BATTERY, PERJURY, SUBORNATION OF PERJURY,
CRIMINAL OBSTRUCTION OF LEGAL PROCESS OR RESISTANCE OF OFFICERS IN
DISCHARGE OF OFFICIAL DUTY, ARSON, OR LARCENY."  SEE ID., AT APP. 68-69
(REMARKS OF REP. SHELLABARGER).  EXTREME OPPONENTS OF THE BILL ATTACKED
THIS SECTION, AS THEY ATTACKED OTHER SECTIONS.  MODERATE OPPONENTS
OBJECTED NOT BECAUSE THE SECTION REACHED PRIVATE CONDUCT BUT BECAUSE IT
OUSTED THE STATES FROM A BROAD RANGE OF THEIR CRIMINAL JURISDICTION
EVEN WHERE THEY WERE SUCCESSFULLY MEETING THEIR CONSTITUTIONAL
OBLIGATION TO PROVIDE EQUAL PROTECTION.  SEE, E,G., ID., AT 366
(REMARKS OF REP. ARTHUR, AN OPPONENT).  REPRESENTATIVE GARFIELD, FOR
EXAMPLE, CRITICIZED THE ORIGINAL SEC. 2, SEE ID., AT APP. 153, BUT
PRAISED AND VOTED FOR THE FINAL BILL, INCLUDING SEC. 2, WHICH HE
UNDERSTOOD TO REACH PRIVATE CONDUCT, SEE ID., AT 807, 808. 

ON ITS INTRINSIC MERITS, THE COURT'S CONCLUSION THAT CUSTOM "FOR
PURPOSES OF SEC. 1983 MUST HAVE THE FORCE OF LAW" WOULD BE WHOLLY
ACCEPTABLE IF THE PHRASE "FORCE OF LAW" MEANT, AS AT COMMON LAW, MERELY
THAT CUSTOM MUST HAVE THE EFFECT OF LAW-- THAT IT BE GENERALLY REGARDED
AS HAVING NORMATIVE FORCE, WHETHER OR NOT ENFORCED OR OTHERWISE
SUPPORTED BY GOVERNMENT.  IT IS CLEAR, HOWEVER, THAT THIS IS NOT THE
COURT'S MEANING.  THE COURT TAKES THE POSITION THAT CUSTOM CAN ACQUIRE
THE FORCE OF LAW ONLY "BY VIRTUE OF THE PERSISTENT PRACTICES OF STATE
OFFICIALS."  LITTLE IN THE DEBATE SUPPORTS THIS NARROW READING OF THE
STATUTE.  THE STATEMENT BY REPRESENTATIVE GARFIELD ON WHICH THE COURT
RELIES, ANTE, AT 167, REFERS NOT MERELY TO "PERMANENT AND WELL-SETTLED"
OFFICIAL PRACTICES, BUT MORE BROADLY TO "SYSTEMATIC MALADMINISTRATION
OF (THE LAWS), OR A NEGLECT OR REFUSAL TO ENFORCE" THEM.  IN SHORT,
UNDER REPRESENTATIVE GARFIELD'S THEORY OF THE EQUAL PROTECTION CLAUSE,
PRIVATE CUSTOMARY VIOLATIONS OF CONSTITUTIONAL RIGHTS ON THE BASIS OF
RACE WERE DENIALS OF EQUAL PROTECTION BECAUSE OF THE FAILURE OF THE
STATE TO PREVENT OR REMEDY THEM.  MERE STATE INACTION CONVERTED
CUSTOMARY PRIVATE DISCRIMINATION INTO A DENIAL OF EQUAL PROTECTION,
WHICH CONGRESS UNDER SECS. 1 AND 5 HAD POWER TO REMEDY.  SEE ALSO CONG.
GLOBE, 42D CONG., 1ST SESS., 333-334 (REMARKS OF REP. HOAR, A MODERATE
SUPPORTER); ID., AT 375 (REMARKS OF REP. LOWE, A SUPPORTER).  OUR CASES
HAVE NEVER EXPLICITLY HELD THAT STATE INACTION ALONE IN THE FACE OF
PURELY PRIVATE DISCRIMINATION CONSTITUTES A DENIAL OF EQUAL
PROTECTION.  BUT CF. BURTON V. WILMINGTON PARKING AUTHORITY, SUPRA, AT
725; CATLETTE V. UNITED STATES, 132 F.2D 902, 907 (C.A. 4TH CIR. 1943);
LYNCH V. UNITED STATES, 189 F.2D 476 (C.A. 5TH CIR. 1951); HENKIN,
SHELLEY V. KRAEMER:  NOTES FOR A REVISED OPINION, 110 U.PA.L.REV.  473
(1962); SEE ALSO SUPRA, AT 189.  NEVERTHELESS, THE CONSTITUTIONAL
THEORY OF THE MEN WHO ENACTED SEC. 1983 REMAINS RELEVANT FOR OUR
INTERPRETATION OF ITS MEANING.  REPRESENTATIVE GARFIELD'S THEORY OF
SEC. 1 OF THE FOURTEENTH AMENDMENT AND OF CONGRESSIONAL POWER UNDER
SECS. 1 AND 5 HAD STRONG SUPPORT IN THE DEBATE.  SEE HARRIS, SUPRA, N.
26.  RECOGNITION OF THAT THEORY-- AND A FORTIORI OF THE OTHER PRINCIPAL
THEORY AMONG THE BILL'S SUPPORTERS, THE RADICAL VIEW THAT THE
FOURTEENTH AMENDMENT EMPOWERS CONGRESS TO ASSERT PLENARY JURISDICTION
OVER STATE AFFAIRS, SEE IBID.-- ONLY PROVIDES FURTHER CONFIRMATION FOR
THE CONCLUSION THAT "CUSTOM" IN SEC. 1983 MEANS CUSTOM OF THE PEOPLE OF
A STATE, NOT CUSTOM OF STATE OFFICIALS. 

        III 

SINCE THIS CASE IS BEING REMANDED, I THINK IT PROPER TO EXPRESS MY
VIEWS ON THE KINDS OF RELIEF TO WHICH PETITIONER MAY BE ENTITLED IF SHE
SHOULD PREVAIL ON THE MERITS. 

RIGHTS "SECURED BY THE CONSTITUTION AND LAWS" BY INVOKING ANY OF THE
REMEDIES KNOWN TO THE ARSENAL OF THE LAW.  STANDARDS GOVERNING THE
GRANTING OF RELIEF UNDER SEC. 1983 ARE TO BE DEVELOPED BY THE FEDERAL
COURTS IN ACCORDANCE WITH THE PURPOSES OF THE STATUTE AND AS A MATTER
OF FEDERAL COMMON LAW.  SEE TENNEY V. BRANDHOVE, 341 U.S. 367 (1951);
MONROE V. PAPE, SUPRA; PIERSON V. RAY, 386 U.S. 547 (1967); BASISTA V.
WEIR, 340 F.2D 74, 85-87 (C.A. 3D CIR. 1965); CF. SULLIVAN V. LITTLE
HUNTING PARK, 396 U.S. 229, 238-240 (1969); J. I. CASE CO. V. BORAK,
377 U.S. 426, 433-434 (1964).  OF COURSE, WHERE JUSTICE REQUIRES IT,
FEDERAL DISTRICT COURTS ARE DUTY-BOUND TO ENRICH THE JURISPRUDENCE OF
SEC. 1983 BY LOOKING TO THE REMEDIES PROVIDED BY THE STATES WHEREIN
THEY SIT.  42 U.S.C. 1988.  BUT RESORT TO STATE LAW AS SUCH SHOULD BE
HAD ONLY IN CASES WHERE FOR SOME REASON FEDERAL REMEDIAL LAW IS NOT AND
CANNOT BE MADE ADEQUATE TO CARRY OUT THE PURPOSES OF THE STATUTE. 

COME WITHIN ITS PROHIBITIONS; CERTAIN BROAD IMMUNITIES ARE RECOGNIZED. 
SEE TENNEY V. BRANDHOVE, SUPRA; MONROE V. PAPE, SUPRA, AT 187-192;
PIERSON V. RAY, SUPRA, AT 553-555.  IN SOME TYPES OF CASES WHERE THE
WRONG UNDER SEC. 1983 IS CLOSELY ANALOGOUS TO A WRONG RECOGNIZED IN THE
LAW OF TORTS, IT IS APPROPRIATE FOR THE FEDERAL COURT TO APPLY THE
RELEVANT TORT DOCTRINES AS TO THE BEARING OF PARTICULAR MENTAL ELEMENTS
ON THE EXISTENCE AND AMOUNT OF LIABILITY.  SEE, E.G., PIERSON V. RAY,
SUPRA; WHIRL V. KERN, 407 F.2D 781 (C.A. 5TH CIR. 1969).  IN OTHER
TYPES OF CASES, HOWEVER, THE COMMON LAW OF TORTS MAY BE DIVIDED ON
IMPORTANT QUESTIONS OF DEFENSES AND RELIEF, OR IT MAY BE INADEQUATE TO
CARRY OUT THE PURPOSES OF THE STATUTE.  THUS THE COMMON LAW IS NOT AN
INFALLIBLE GUIDE FOR THE DEVELOPMENT OF SEC. 1983.  IN PARTICULAR,
DENIAL OF EQUAL PROTECTION ON THE BASIS OF RACE WAS THE CENTRAL EVIL
THAT SEC. 1983 WAS DESIGNED TO STAMP OUT.  WHERE THAT IS THE BASIS FOR
RECOVERY, RELIEF SHOULD NOT DEPEND ON THE VAGARIES OF THE GENERAL
COMMON LAW BUT SHOULD BE GOVERNED BY UNIFORM AND EFFECTIVE FEDERAL
STANDARDS. 

THE APPROPRIATENESS OF ANY PARTICULAR REMEDY IN A GIVEN CASE DEPENDS
ON THE CIRCUMSTANCES OF THAT CASE, AND ESPECIALLY ON THE DEGREE OF
CULPABILITY OF THE DEFENDANT.  IN MY VIEW, WHERE A PLAINTIFF SHOWS A
VOLUNTARY DENIAL OF EQUAL PROTECTION ON THE GROUND OF RACE AMOUNTING TO
A VIOLATION OF SEC. 1983 HE IS ENTITLED TO RECOVER COMPENSATION FOR
ACTUAL DAMAGES, IF ANY, SIMPLY ON THE BASIS OF THE PROVED VIOLATION. 
THE QUESTION OF COMPENSATORY DAMAGES IS ONE OF ALLOCATION OF ACTUAL
LOSS, AND, AS BETWEEN THE INNOCENT PLAINTIFF AND THE DEFENDANT WHO
DELIBERATELY DISCRIMINATES ON THE BASIS OF RACE, I THINK IT JUST AND
FAITHFUL TO THE STATUTORY PURPOSES TO IMPOSE THE LOSS ON THE
DISCRIMINATOR, EVEN IF HE WAS UNAWARE THAT HIS DISCRIMINATION
CONSTITUTED STATE ACTION DENYING EQUAL PROTECTION.  PROOF OF AN EVIL
MOTIVE OR OF A SPECIFIC INTENT TO DEPRIVE A PERSON OF A CONSTITUTIONAL
RIGHT IS GENERALLY NOT REQUIRED UNDER SEC. 1983.  MONROE V. PAPE,
SUPRA, AT 183-187; WHIRL V. KERN, SUPRA.  AND, INDEED, IN NIXON V.
HERNDON, 273 U.S. 536 (1927), AND LANE V. WILSON, 307 U.S. 268 (1939),
THIS COURT UPHELD COMPLAINTS SEEKING $5,000 RECOVERIES FROM STATE
ELECTION OFFICIALS WHO MERELY CARRIED OUT THEIR OFFICIAL DUTY TO
PREVENT THE PLAINTIFFS FROM VOTING UNDER DISCRIMINATORY STATE STATUTES
WHICH MADE THEM INELIGIBLE TO VOTE.  OF COURSE, THERE MAY BE CASES
WHERE IT WOULD BE PROPER TO GIVE DECLARATORY OR INJUNCTIVE RELIEF
WITHOUT DAMAGES.  SEE WILLIAMS V. HOT SHOPPES, INC., 110 U.S.APP.D.C.
358, 370, 293 F.2D 835, 847 (1961) (BAZELON, J., DISSENTING). 

TO RECOVER PUNITIVE DAMAGES, I BELIEVE A PLAINTIFF MUST SHOW MORE
THAN A BARE VIOLATION OF SEC. 1983.  ON THE OTHER HAND, HE NEED NOT
SHOW THAT THE DEFENDANT SPECIFICALLY INTENDED TO DEPRIVE HIM OF A
RECOGNIZED FEDERAL RIGHT, AS IS REQUIRED BY THE WORD "WILLFULLY" IN 18
U.S.C. 242, SEE SCREWS V. UNITED STATES, SUPRA.  NOR NEED HE SHOW
ACTUAL DAMAGES.  BASISTA V. WEIR, SUPRA, AT 87-88; TRACY V. ROBBINS, 40
F.R.D. 108, 113 (D.C.S.C. 1966).  IT IS SUFFICIENT FOR THE PLAINTIFF TO
SHOW EITHER THAT THE DEFENDANT ACTED "UNDER COLOR OF (A) STATUTE,
ORDINANCE, REGULATION, CUSTOM, OR USAGE OF ANY STATE OR TERRITORY,"
WITH ACTUAL KNOWLEDGE THAT HE WAS VIOLATING A RIGHT "SECURED BY THE
CONSTITUTION AND LAWS," OR THAT THE DEFENDANT ACTED WITH RECKLESS
DISREGARD OF WHETHER HE WAS THUS VIOLATING SUCH A RIGHT.  CF. C.
MCCORMICK, HANDBOOK ON THE LAW OF DAMAGES SEC. 79 (1935).  HOWEVER, IN
MY VIEW, A PROPRIETOR OF A PLACE OF PUBLIC ACCOMMODATION WHO
DISCRIMINATES ON THE BASIS OF RACE AFTER OUR DECISION IN PETERSON V.
CITY OF GREENVILLE, SUPRA, AND THE ENACTMENT OF THE CIVIL RIGHTS ACT OF
1964, 42 U.S.C. 200A TO 2000H-6, DOES SO WITH RECKLESS DISREGARD AS A
MATTER OF LAW, AND THEREFORE MAY BE FOUND LIABLE FOR PUNITIVE DAMAGES. 
/34/  OF COURSE, IT IS PROPER FOR THE FACTFINDER TO CONSIDER THE DEGREE
OF RECKLESSNESS OR ACTUAL KNOWLEDGE AND OTHER CIRCUMSTANCES IN
ASSESSING THE AMOUNT OF PUNITIVE DAMAGES TO AWARD IN A PARTICULAR
CASE. 

IT MAY BE ARGUED THAT IT IS INEQUITABLE TO IMPOSE PUNITIVE DAMAGES
ON A DEFENDANT, A RESTAURATEUR FOR EXAMPLE,WHO KNOWINGLY OR RECKLESSLY
VIOLATES A CONSTITUTIONAL RIGHT AND SEC. 1983 OUT OF FEAR THAT HE WILL
LOSE SOME OF HIS CUSTOMERS IF HE DOES NOT.  THAT ARGUMENT IS PLAINLY
UNACCEPTABLE.  THE PROTECTION OF CONSTITUTIONAL RIGHTS MAY NOT BE
WATERED DOWN BECAUSE SOME MEMBERS OF THE PUBLIC ACTIVELY OPPOSE THE
EXERCISE OF CONSTITUTIONAL RIGHTS BY OTHERS.  COOPER V. AARON, 358 U.S.
1 (1958).  TO GIVE ANY WEIGHT AT ALL TO THAT ARGUMENT WOULD BE TO
ENCOURAGE POPULAR OPPOSITION TO COMPLIANCE WITH THE CONSTITUTION. 
MOREOVER, THE ARGUMENT IS PARTICULARLY DEVOID OF MERIT IN THE CONTEXT
OF SEC. 1983, WHICH WAS ENACTED BY A CONGRESS DETERMINED TO STAMP OUT
WIDESPREAD VIOLATIONS OF CONSTITUTIONAL RIGHTS AT VIRTUALLY ANY COST,
AND WHICH IMPOSED LIABILITY EVEN ON PERSONS WHO SIMPLY FAILED TO
PREVENT CERTAIN VIOLATIONS.  SEE CONG. GLOBE, 41ST CONG., 1ST SESS.,
804 (REMARKS OF REP. POLAND).  IF SEC. 1983 IS GIVEN AN INTERPRETATION
BEFITTING ITS PURPOSES, THE THREAT OF WITHDRAWAL OF PATRONAGE WILL BE
LARGELY EMPTY SINCE NO OTHER PLACE OF PUBLIC ACCOMMODATION IN THE
COMMUNITY WILL BE IN A BETTER POSITION TO DISCRIMINATE.  THE PROSPECT
OF SUBSTANTIAL PUNITIVE DAMAGES MAY BE THE MOST EFFECTIVE MEANS TO
PERSUADE ALL PROPRIETORS OF PLACES OF PUBLIC ACCOMMODATION TO RESPECT
CONSTITUTIONAL RIGHTS. 

/1/  I DO NOT AGREE WITH THE STATEMENT ON PAGE 150 OF THE COURT'S
OPINION THAT THE "SECOND ELEMENT (OF SEC. 1983) REQUIRES THAT THE
PLAINTIFF SHOW THAT THE DEFENDANT ACTED 'UNDER COLOR OF LAW.'"  SEE
PART II, INFRA. 

/2/  SECTION 2046.5 READS AS FOLLOWS: 

"1.  EVERY PERSON, FIRM OR CORPORATION ENGAGED IN ANY PUBLIC
BUSINESS, TRADE OR PROFESSION OF ANY KIND WHATSOEVER IN THE STATE OF
MISSISSIPPI, INCLUDING, BUT NOT RESTRICTED TO, HOTELS, MOTELS, TOURIST
COURTS, LODGING HOUSES, RESTAURANTS, DINING ROOM OR LUNCH COUNTERS,
BARBER SHOPS,BEAUTY PARLORS, THEATRES, MOVING PICTURE SHOWS, OR OTHER
PLACES OF ENTERTAINMENT AND AMUSEMENT, INCLUDING PUBLIC PARKS AND
SWIMMING POOLS, STORES OF ANY KIND WHEREIN MERCHANDISE IS OFFERED FOR
SALE, IS HEREBY AUTHORIZED AND EMPOWERED TO CHOOSE OR SELECT THE PERSON
OR PERSONS HE OR IT DESIRES TO DO BUSINESS WITH, AND IS FURTHER
AUTHORIZED AND EMPOWERED TO REFUSE TO SELL TO, WAIT UPON OR SERVE ANY
PERSON THAT THE OWNER, MANAGER OR EMPLOYEE OF SUCH PUBLIC PLACE OF
BUSINESS DOES NOT DESIRE TO SELL TO, WAIT UPON OR SERVE . . . . 

"2.  ANY PUBLIC PLACE OF BUSINESS MAY, IF IT SO DESIRES, DISPLAY A
SIGN POSTED IN SAID PLACE OF BUSINESS SERVING NOTICE UPON THE GENERAL
PUBLIC THAT 'THE MANAGEMENT RESERVES THE RIGHT TO REFUSE TO SELL TO,
WAIT UPON OR SERVE ANY PERSON,' HOWEVER, THE DISPLAY OF SUCH A SIGN
SHALL NOT BE A PREREQUISITE TO EXERCISING THE AUTHORITY CONFERRED BY
THIS ACT. 

"3.  ANY PERSON WHO ENTERS A PUBLIC PLACE OF BUSINESS IN THIS STATE,
OR UPON THE PREMISES THEREOF, AND IS REQUESTED OR ORDERED TO LEAVE
THEREFROM BY THE OWNER, MANAGER OR ANY EMPLOYEE THEREOF, AND AFTER
HAVING BEEN SO REQUESTED OR ORDERED TO LEAVE, REFUSES SO TO DO, SHALL
BE GUILTY OF A TRESPASS AND UPON CONVICTION THEREFOR SHALL BE FINED NOT
MORE THAN FIVE HUNDRED DOLLARS ($500.00) OR IMPRISONED IN JAIL NOT MORE
THAN SIX (6) MONTHS, OR BOTH SUCH FINE AND IMPRISONMENT . . . ." 

/3/  THE COURT FOUND STATE ACTION ON A DIFFERENT GROUND. 

/4/  MISS.  LAWS 1956, C. 466, SENATE CONCURRENT RESOLUTION NO.
125. 

/5/  E.G., MISS.  LAWS 1956, CC. 258-260 (NOW MISS.  CODE ANN. SECS.
7787.5, 2351.5, 2351.7). 

/6/  E.G., MISS.  LAWS 1956, C. 254 (NOW MISS.  CODE ANN. SEC.
4065.3).  SEE INAUGURAL ADDRESS OF FORMER GOVERNOR JAMES P. COLEMAN,
MISS.  HOUSE JOURNAL 59, 65-68 (1956).  SEE ALSO MISS.  CODE ANN. SEC.
4065.4 (ENACTED 1962). 

/7/  THE 1956 SESSION OF THE MISSISSIPPI LEGISLATURE PRODUCED MANY
STATUTES AND RESOLUTIONS, INCLUDING SEC. 2046.5, DEALING WITH THE
SEPARATION OF THE RACES.  UNDER THE HEADING "SEGREGATION" IN THE INDEX
TO THE GENERAL LAWS VOLUME FOR THAT SESSION, THERE IS A CROSS-REFERENCE
TO "RACES."  IN ADDITION TO SEC. 2046.5, MISS.  LAWS 1956, C. 257, THE
FOLLOWING CHAPTERS OF THE GENERAL LAWS OF MISSISSIPPI, ALL ENACTED
DURING FEBRUARY, MARCH, AND APRIL, 1956, ARE CITED UNDER THAT HEADING: 

(1) CHAPTER 241 (MAXIMUM TEN-YEAR PENALTY FOR INCESTUOUS OR
INTERRACIAL MARRIAGE); 

(2) CHAPTER 253 (NOW MISS CODE ANN. SECS. 2049-01 TO 2049-08) (ACT
"TO PROHIBIT THE FOMENTING AND AGITATION OF LITIGATION"); 

(3) CHAPTER 254 (NOW MISS.  CODE ANN. SEC. 4065.3) ("ENTIRE
EXECUTIVE BRANCH" OF STATE GOVERNMENT "TO PROHIBIT BY ANY LAWFUL . . .
MEANS, THE CAUSING OF A MIXING OR INTEGRATION OF THE WHITE AND NEGRO
RACES IN PUBLIC SCHOOLS, PUBLIC PARKS, PUBLIC WAITING ROOMS, PUBLIC
PLACES OF AMUSEMENT, RECREATION OR ASSEMBLY"); 

(4) CHAPTER 255 (NOW MISS.  CODE ANN. SEC. 86666) (STANDARDS FOR
ADMITTING FOREIGN LAWYERS TO PRACTICE IN MISSISSIPPI); 

(5) CHAPTER 256 (NOW MISS.  CODE ANN. SEC. 2090.5) (ACT "TO PROHIBIT
ANY PERSON FROM CREATING A DISTURBANCE OR BREACH OF THE PEACE IN ANY
PUBLIC PLACE OF BUSINESS"); 

(6) CHAPTER 258 (NOW MISS.  CODE ANN. SEC. 7787.5) (ACT "TO REQUIRE
RAILROAD COMPANIES, BUS COMPANIES AND OTHER COMMON CARRIERS OF
PASSENGERS OWNING, OPERATING OR LEASING DEPOTS, BUS STATIONS OR
TERMINALS TO PROVIDE SEPARATE ACCOMMODATIONS FOR THE RACES TRAVELING IN
INTRASTATE TRAVEL"); 

(7) CHAPTER 259 (NOW MISS.  CODE ANN. SEC. 2351.5) (ACT "TO REQUIRE
RAILROAD COMPANIES, BUS COMPANIES OR OTHER COMMON CARRIERS FOR HIRE
MAINTAINING AND OPERATING WAITING ROOMS FOR PASSENGERS TO PROVIDE
SEPARATE TOILET FACILITIES FOR THE RACES TRAVELING IN INTRASTATE
TRAVEL"); 

(8) CHAPTER 260 (NOW MISS.  CODE ANN. SEC. 2351.7) (ACT "TO REQUIRE
ALL PERSONS TRAVELING IN INTRASTATE TRAVEL TO USE AND OCCUPY THE
WAITING ROOMS MARKED AND PROVIDED FOR SUCH PERSONS; TO PROHIBIT PERSONS
TRAVELING IN INTRASTATE TRAVEL FROM ENTERING AND USING THE WAITING
ROOMS NOT MARKED AND PROVIDED FOR SUCH PERSONS"); 

(9) CHAPTER 261 (ACT "TO PROHIBIT THE USE OF PROFANE, VULGAR,
INDECENT, OFFENSIVE, SLANDEROUS LANGUAGE OVER A TELEPHONE"); 

(10) CHAPTER 273 (SEPARATE SCHOOLS TO BE MAINTAINED FOR WHITE AND
BLACK CHILDREN) (SEE MISS.  CODE ANN. SEC. 6220.5 (UNLAWFUL FOR WHITES
TO ATTEND INTEGRATED SCHOOLS)); 

(11) CHAPTER 288 (REPEAL OF COMPULSORY EDUCATION LAWS); 

(12) CHAPTER 365 (NOW MISS.  CODE ANN. SECS. 9028-31 TO 9028-48)
(CREATION OF STATE SOVEREIGNTY COMMISSION); 

(13) CHAPTER 466 (SENATE CONCURRENT RESOLUTION NO. 125 "CONDEMNING
AND PROTESTING" BROWN V. BOARD OF EDUCATION). 

IN ADDITION TO THE FOREGOING ENACTMENTS OF 1956, NUMEROUS OTHER
STATUTES, IN FORCE IN 1956 AND NOT THEREAFTER REPEALED, MANIFEST
MISSISSIPPI'S SEGREGATION POLICIES.  SEE, E.G., MISS.  CODE ANN. SEC.
2339 (PUNISHMENT FOR THOSE GUILTY OF "PRINTING, PUBLISHING OR
CIRCULATING . . . MATTER URGING OR PRESENTING FOR PUBLIC ACCEPTANCE OR
GENERAL INFORMATION, ARGUMENTS OR SUGGESTIONS IN FAVOR OF SOCIAL
EQUALITY OR OF INTERMARRIAGE BETWEEN WHITES AND NEGROES").  OTHER
PROVISIONS PURPORT TO REQUIRE SEGREGATION IN TAXICABE (EXCEPT FOR
SERVANTS) (MISS.  CODE ANN. SEC. 3499); IN THE STATE INSANE HOSPITAL
(MISS.  CODE ANN. SECS. 6882, 6883); AND IN SCHOOLS (MISS.  CONST.,
ART. 8, SEC. 207).     /8/  MISS.  LAWS 1954, C. 20, MISS.  CODE ANN.
SEC. 2056.  THE EXPLICIT REFERENCE TO SEGREGATION WAS OMITTED FROM THE
1968 RE-ENACTMENT OF THE CONSPIRACY STATUTE.  MISS.  CODE ANN. SEC.
2056 (SUPP. 1968). 

/9/  E.G., MISS.  CODE ANN. SECS. 2087.5, 2087.7, 2089.5 (ENACTED
1960); SEC. 2087.9 (ENACTED 1964). 

/10/  SEE GENERALLY BAILEY V. PATTERSON, 323 F.2D 201 (C.A. 5TH CIR.
1963). 

/11/  CF. UNITED STATES V. CITY OF JACKSON, 318 F.2D 1, 6-7 (C.A.
5TH CIR. 1963), INVOLVING SEGREGATION IN RAILROAD AND BUS TERMINALS,
WHERE THE COURT OF APPEALS NOTED THAT "ONE OF THE SOPHISTICATED METHODS
FOR CIRCUMVENTING THE LAW IS FOR LOCAL POLICE TO ESCHEW 'SEGREGATION'
LAWS, USING IN THEIR PLACE CONVENTIONAL BREACH OF PEACE OR TRESPASS
LAWS AS INTRUMENTS FOR ENFORCING SEGREGATION, EUPHEMISTICALLY TERMED
'SEPARATION.'"  SEE ALSO LEWIS V. GREYHOUND CORP., 199 F.SUPP.  210
(D.C.M.D. ALA. 1961); BAILEY V. PATTERSON, 199 F.SUPP.  595, 609-622
(D.C.S.D. MISS.  1961) (RIVES, J., DISSENTING), VACATED AND REMANDED,
369 U.S. 31 (1962). 

/12/  SEE DONNELL V. STATE, 48 MISS.  661, 680-681 (1873): 

"AMONG THOSE CUSTOMS WHICH WE CALL THE COMMON LAW, THAT HAVE COME
DOWN TO US FROM THE REMOTE PAST, ARE RULES WHICH HAVE A SPECIAL
APPLICATION TO THOSE WHO SUSTAIN A QUASI PUBLIC RELATION TO THE
COMMUNITY.  THE WAYFARER AND THE TRAVELER HAD A RIGHT TO DEMAND FOOD
AND LODGING FROM THE INN-KEEPER; THE COMMON CARRIER WAS BOUND TO ACCEPT
ALL PASSENGERS AND GOODS OFFERED FOR TRANSPORTATION, ACCORDING TO HIS
MEANS.  SOO, TOO, ALL WHO APPLIED FOR ADMISSION TO THE PUBLIC SHOWS AND
AMUSEMENTS, WERE ENTITLED TO ADMISSION, AND IN EACH INSTANCE, FOR A
REFUSAL, AN ACTION ON THE CASE LAY, UNLESS SUFFICIENT REASON WERE
SHOWN.  THE (STATE CIVIL RIGHTS) STATUTE DEALS WITH SUBJECTS WHICH HAVE
ALWAYS BEEN UNDER LEGAL CONTROL." 

/13/  THE STATE CIVIL RIGHTS LAW OF 1873 TOOK THE FORM OF AN
AMENDMENT TO MISS.  REV.  CODE SECS. 2731, 2732 (1871), WHICH FORBADE,
INTER ALIA, SEGREGATION OF THE RACES ON RAILROADS, STAGE COACHES, AND
STEAMBOATS.  NONE OF THE PROVISIONS OF THE AMENDED STATUTES, THOUGH
APPARENTLY NEVER EXPLICITLY REPEALED, APPEAR IN THE 1880 MISSISSIPPI
CODE OR IN SUBSEQUENT CODIFICATIONS OF STATE LAW.  IN 1888 THE
MISSISSIPPI LEGISLATURE ENACTED A CRIMINAL STATUTE THAT PROVIDED THAT
"ALL RAILROADS . . . SHALL PROVIDE EQUAL BUT SEPARATE ACCOMMODATIONS
FOR THE WHITE AND COLORED RACES" AND THAT ALL PRIOR STATUTES IN
CONFLICT THEREWITH WERE REPEALED PRO TANTO.  MISS.  LAWS 1888, C. 27. 

/14/  ALSO SEE MCCABE V. ATCHISON, TOPEKA & SANTA FE R. CO., 235
U.S. 151 (1914); EVANS V. ABNEY, 396 U.S. 435, 457-458 (1970) (BRENNAN,
J., DISSENTING); EVANS V. NEWTON, 382 U.S. 296, 302-312 (1966) (OPINION
OF WHITE, J.); BURTON V. WILMINGTON PARKING AUTHORITY, SUPRA, AT 726
727 (STEWART, J., CONCURRING).  SEE ALSO MULKEY V. REITMAN, SUPRA. 

/15/  AS ORIGINALLY ENACTED, SEC. 1 OF THE 1871 ACT PROVIDED: 

"THAT ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE OF ANY STATE, SHALL SUBJECT, OR CAUSE TO
BE SUBJECTED, ANY PERSON WITHIN THE JURISDICTION OF THE UNITED STATES
TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY
THE CONSTITUTION OF THE UNITED STATES, SHALL, ANY SUCH LAW, STATUTE,
ORDINANCE, REGULATION, CUSTOM, OR USAGE OF THE STATE TO THE CONTRARY
NOTWITHSTANDING, BE LIABLE TO THE PARTY INJURED IN ANY ACTION AT LAW,
SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS; SUCH PROCEEDING
TO BE PROSECUTED IN THE SEVERAL DISTRICT OR CIRCUIT COURTS OF THE
UNITED STATES, WITH AND SUBJECT TO THE SAME RIGHTS OF APPEAL, REVIEW
UPON ERROR, AND OTHER REMEDIES PROVIDED IN LIKE CASES IN SUCH COURTS,
UNDER THE PROVISIONS OF THE ACT OF THE NINTH OF APRIL, EIGHTEEN HUNDRED
AND SIXTY-SIX, ENTITLED 'AN ACT TO PROTECT ALL PERSONS IN THE UNITED
STATES IN THEIR CIVIL RIGHTS, AND TO FURNISH THE MEANS OF THEIR
VINDICATION'; AND THE OTHER REMEDIAL LAWS OF THE UNITED STATES WHICH
ARE IN THEIR NATURE APPLICABLE IN SUCH CASES." 


"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

THE LANGUAGE WAS CHANGED WITHOUT COMMENT INTO ITS PRESENT FORM WHEN
SEC. 1 WAS CONDIFIED IN 1874 AS REVISED STATUTES SEC. 1979.  SEE ID.; 1
REVISION OF U.S. STATUTES, DRAFT 947 (1872).  THE JURISDICTIONAL
PROVISIONS OF THE 1871 ACT NOW APPEAR IN 28 U.S.C. 1343.  FOR PURPOSES
OF THIS OPINION I ASSUME THAT THE LINGUISTIC DIFFERENCES BETWEEN THE
ORIGINAL SEC. 1 AND PRESENT SEC. 1983 ARE IMMATERIAL.  SEE MONROE V.
PAPE, 365 U.S. 167, 212-213, N. 18 (1961) (OPINION OF FRANKFURTER, J.);
CF. JONES V. ALFRED H. MAYER CO., 392 U.S. 409, 422-423, N. 29 (1968). 

/16/  THE MILITARY REMEDY, DESIGNED TO BECOME AVAILABLE WHEN THE
OTHER REMEDIES WERE INADEQUATE, WAS CREATED BY SEC. 3 OF THE 1871 ACT,
NOW 10 U.S.C. 333.  SEE GENERALLY COMMENT, FEDERAL INTERVENTION IN THE
STATES FOR THE SUPPRESSION OF DOMESTIC VIOLENCE:  CONSTITUTIONALITY,
STATUTORY POWER, AND POLICY, 1966 DUKE L. J. 415. 

/17/  NUMEROUS OTHER CRIMINAL AND CIVIL REMEDIES HAD BEEN CREATED BY
PRIOR CIVIL RIGHTS ACTS, PRINCIPALLY TO PROTECT VOTING RIGHTS.  SEE
SEC. 6 OF THE 1866 ACT, 14 STAT. 28; SECS. 2, 3, 4, 5, 7, 11, 15, 19,
20, AND 22 OF THE 1870 ACT, 16 STAT. 140 ET SEQ.; SECS. 1, 10, AND 11
OF THE ACT OF FEB. 28, 1871, 16 STAT. 433, 436, 437.  ALL OF THESE
STATUTES HAVE BEEN REPEALED, SEE 28 STAT. 36 (1894); 35 STAT. 1088,
1153 (1909), SOME AFTER HAVING BEEN DECLARED UNCONSTITUTIONAL.  SEE,
E.G., UNITED STATES V. REESE, 92 U.S. 214 (1876) (SECS. 3, 4 OF 1870
ACT HELD UNCONSTITUTIONAL); JAMES V. BOWMAN, 190 U.S. 127 (1903) (SEC.
5 OF 1870 ACT HELD UNCONSTITUTIONAL). 

/18/  SEE GENERALLY GRESSMAN, THE UNHAPPY HISTORY OF CIVIL RIGHTS
LEGISLATION, 50 MICH.L.REV.  1323 (1952). 

/19/  GUEST WAS AN APPEAL FROM THE DISMISSAL OF AN INDICTMENT FOR
FAILURE TO STATE AN OFFENSE UNDER THE LAWS OF THE UNITED STATES. 

/20/  SEE GENERALLY COX, FOREWORD:  CONSTITUTIONAL ADJUDICATION AND
THE PROMOTION OF HUMAN RIGHTS, 80 HARV.L.REV.  91 (1966). 

/21/  FOR PURPOSES OF THIS PART OF THE OPINION I PUT ASIDE
PETITIONER'S ALLEGATION OF A CONSPIRACY. 

/22/  MR. JUSTICE FRANKFURTER MADE A PASSING REFERENCE TO "CUSTOM"
IN HIS SEPARATE OPINION IN MONROE V. PAPE, SUPRA, AT 246; SEE INFRA, AT
216, N. 25.  IN THE LOWER COURTS THE PHRASE "CUSTOM OR USAGE" HAS NOT
RECEIVED THOROUGH CONSIDERATION AND HAS BEEN GIVEN DIFFERENT
INTERPRETATIONS.  COMPARE WILLIAMS V. HOT SHOPPES, INC., 110
U.S.APP.D.C. 358, 363-364, 293 F.2D 835, 840-841 (1961) WITH GANNON V.
ACTION, 303 F.SUPP.  1240 (D.C.E.D. MO. 1969).  IN THE HOT SHOPPES
CASE, THE COURT CONSTRUED "CUSTOM OR USAGE" TO INCLUDE A STATE-ACTION
REQUIREMENT; BUT IT DID SO SOLELY ON THE BASIS OF DOUBTS ABOUT
CONGRESSIONAL POWER TO REACH PRIVATE INTERFERENCE WITH FOURTEENTH
AMENDMENT RIGHTS.  THOSE DOUBTS HAVE NOW BEEN COMPLETELY REMOVED BY
DECISIONS OF THIS COURT.  SEE SUPRA, AT 208-210.  IN TWO OTHER CASES,
WILLIAMS V. HOWARD JOHNSON'S RESTAURANT, 268 F.2D 845 (C.A. 4TH CIR.
1959), AND WILLIAMS V. HOWARD JOHNSON'S, INC., 323 F.2D 102 (C.A. 4TH
CIR. 1963), ON SUBSEQUENT APPEAL SUB NOM.  WILLIAMS V. LEWIS, 342 F.2D
727 (C.A. 4TH CIR. 1965) (EN BANC), THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT HELD THAT PRIVATE CUSTOM AND USAGE DID NOT AMOUNT TO STATE
ACTION.  IN EACH CASE THE COURT DEALT WITH CUSTOM AND USAGE UNDER THE
FIRST ELEMENT OF SEC. 1983-- DEPRIVATION OF A CONSTITUTIONAL RIGHT--
AND NOT UNDER THE SECOND ELEMENT-- ACTION UNDER COLOR OF STATUTE,
ORDINANCE, REGULATION, CUSTOM, OR USAGE.  THOSE TWO DECISIONS WERE
CONSTRUCTIONS OF THE EQUAL PROTECTION CLAUSE, NOT OF SEC. 1983.  THE
SAME IS TRUE OF SLACK V. ATLANTIC WHITE TOWER SYSTEM, 181 F.SUPP.  124
(D.C. MD.), AFF'D, 284 F.2D 746 (C.A. 4TH CIR. 1960), CITED BY THE
COURT.  MOREOVER, IN THAT CASE THE COURT HAD NO OCCASION TO CONSIDER
THE ELEMENTS OF A SEC. 1983 CUSTOM, BECAUSE IT TOOK JUDICIAL NOTICE OF
REPORTS SHOWING THAT IN THE DEFENDANT'S AREA THERE WAS IN FACT NO
CUSTOM OF RESTAURANT SEGREGATION IN ANY SENSE.  SEE 181 F.SUPP.,AT
126. 

/23/  AS PRESENTLY CODIFIED, SEC. 242 BEGINS: 

"WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM, WILLFULLY SUBJECTS ANY INHABITANT OF ANY STATE, TERRITORY, OR
DISTRICT TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES
SECURED OR PROTECTED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES .
. . ." 

THIS LANGUAGE DIFFERS FROM THE COMPARABLE LANGUAGE OF SEC. 1983, N.
15, SUPRA, IN SEVERAL RESPECTS.  FOR EXAMPLE:  "LAW" PRECEDES "STATUTE"
IN SEC. 242, BUT NOT IN SEC. 1983; "OR USAGE" FOLLOWS "CUSTOM" IN SEC.
1983, BUT NOT IN SEC. 242; THE ENTIRE ENUMERATION "STATUTE . . . USAGE"
IS QUALIFIED BY "OF ANY STATE OR TERRITORY" IN SEC. 1983, BUT NOT IN
SEC. 242; SEC. 1983 REFERS TO RIGHTS THAT ARE "SECURED," WHEREAS SEC.
242 REFERS TO RIGHTS "SECURED OR PROTECTED"; SEC. 1983 COVERS RIGHTS
SECURED "BY THE CONSTITUTION AND LAWS", WHEREAS SEC. 242 COVERS RIGHTS
SECURED OR PROTECTED "BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES"; SEC. 242 REACHES ONLY ACTS DONE "WILLFULLY," BUT SEC. 1983 IS
NOT SO LIMITED.  AS ORIGINALLY ENACTED, SEC. 1983 WAS MODELED ON THE
PRECURSOR OF SEC. 242, WITH DIFFERENCES OF COVERAGE NOT MATERIAL HERE. 
SEE CONG. GLOBE, 42D CONG., 1ST SESS., APP. 68 (REMARKS OF REP.
SHELLABARGER).  APART FROM THE INCLUSION OF THE WORD "WILLFULLY" IN
SEC. 242, SEE MONROE V. PAPE, SUPRA, AT 187, THE LINGUISTIC DIFFERENCES
MENTIONED HERE HAVE NOT BEEN THOUGHT TO BE SUBSTANTIVE.  SEE, E.G.,
ID., AT 185; ID., AT 212-213, N. 18 (OPINION OF FRANKFURTER, J.);
UNITED STATES V. PRICE, SUPRA, AT 794 N. 7. 

/24/  SEE N. 15, SUPRA. 

/25/  THE LEGISLATIVE HISTORY CONCERNING THE PRECISE CONGRESSIONAL
UNDERSTANDING OF "CUSTOM OR USAGE" IS INCONCLUSIVE.  AT LEAST FOUR
POSSIBLE INTERPRETATIONS WERE SUGGESTED.  REPRESENTATIVE BLAIR, AN
OPPONENT OF THE BILL, ARGUED THAT SEC. 1983 OPERATED ONLY AGAINST STATE
LEGISLATION AND AS SUCH WOULD BE A NULLITY.  SEE CONG. GLOBE, 42D
CONG., 1ST SESS., APP. 209; SEE ALSO ID., AT APP. 268 (REMARKS OF REP.
SLOSS, AN OPPONENT).  OUR CASES SQUARELY REJECT ANY SUCH LIMITED
CONSTRUCTION OF SEC. 1983.  SEE, E.G., MONROE V. PAPE, SUPRA.  A SECOND
VIEW WAS THAT SEC. 1983 REACHED DEPRIVATIONS OF CONSTITUTIONAL RIGHTS
UNDER "COLOR OF LAW."  SEE, E.G., ID., AT APP. 68 (REMARKS OF REP.
SHELLABARGER); ID., AT 568 (REMARKS OF SEN. EDMUNDS); BUT SEE ID., AT
697-698 (REMARKS OF SEN. EDMUNDS).  SINCE REPRESENTATIVE SHELLABARGER
AND SENATOR EDMUNDS WERE THE MANAGERS OF THE BILL, THEIR COMMENTARY
WOULD ORDINARILY BE ENTITLED TO GREAT WEIGHT; BUT AT NO POINT DID
EITHER EXPLAIN WHAT HE MEANT BY "COLOR OF LAW."  REPRESENTATIVE KERR,
AN OPPONENT, EMPLOYED THE FORMULA "COLOR OF STATE LAWS," BUT PREDICTED
THAT SEC. 1983 WOULD GUVE RISE TO A FLOOD OF LITIGATION INVOLVING ALL
TYPES OF INJURY TO PERSON OR PROPERTY.  SEE ID., AT APP. 50.  A THIRD
VIEW WAS REFLECTED IN THE COMMENT OF SENATOR THURMAN, AN OPPONENT, WHO
SAID IN PASSING THAT SEC. 1983 "REFERS TO A DEPRIVATION UNDER COLOR OF
LAW, EITHER STATUTE LAW OR 'CUSTOM OR USAGE'  WHICH HAS BECOME COMMON
LAW."  ID., AT APP. 217.  THERE IS LITTLE OR NO FURTHER SUPPORT IN THE
DEBATE FOR THIS READING OF THE STATUTE, THOUGH IT APPARENTLY WAS
ADOPTED WITHOUT DISCUSSION BY MR. JUSTICE FRANKFURTER, SEE MONROE V.
PAPE, SUPRA, AT 246 (OPINION OF FRANKFURTER, J.).  THE PRECISE MEANING
OF SENATOR THURMAN'S FORMULA IS UNCLEAR.  HE MAY HAVE BEEN REFERRING TO
CUSTOMS THAT HAD BEEN EXPRESSLY RECOGNIZED AND APPROVED BY STATE
COURTS, OR HE MAY HAVE HAD IN MIND THE ANCIENT PRINCIPLE THAT A GENERAL
CUSTOM AS SUCH "IS REALLY A PART OF THE COMMON LAW ITSELF."  LOUISVILLE
& NASHVILLE R. CO. V. REVERMAN, 243 KY. 702, 707, 49 S.W.2D 558, 560
(1932).  SEE 1 W. BLACKSTONE, COMMENTARIES **68-74.  MOREOVER, SENATOR
THURMAN JOINED SEVERAL OTHERS IN TAKING A FOURTH POSITION:  THAT SEC.
1983 REACHES PRIVATE PERSONS.  SEE ID., AT APP. 216-217 (REMARKS OF
SEN. THURMAN); ID., AT 429 (REMARKS OF REP. MCHENRY, AN OPPONENT); ID.,
AT 395 (REMARKS OF REP. RICE, AN OPPONENT); CF. ID., AT 804 (REMARKS OF
REP. POLAND, A SUPPORTER AND CONFEREE).  OTHER SPEECHES DURING THE
DEBATE AND CONSIDERATION OF THE PURPOSES OF THE STATUTE MAKE IT CLEAR
THAT CONGRESS DID NOT INTEND TO REACH EVERY PRIVATE INTERFERENCE WITH A
CONSTITUTIONAL RIGHT.  SEE INFRA, AT 219-220.  FINALLY, TWO MEMBERS OF
THE HOUSE EXPRESSED A VIEW COMPATIBLE WITH ANY OF THE PRECEDING
POSITIONS:  THEY THOUGHT THE PRINCIPAL EFFECT OF SEC. 1983 WAS TO
REMOVE THE POSSIBLE DEFENSE THAT THE DEFENDANT ACTED UNDER STATE
AUTHORITY.  SEE ID., AT 416 (REMARKS OF REP. BIGGS, AN OPPONENT); ID.,
AT APP. 310 (REMARKS OF REP. MAYNARD, A SUPPORTER). 

1866, 14 STAT. 27.  SEE CONG. GLOBE, 42D CONG., 1ST SESS., APP. 68
(REMARKS OF REP. SHELLABARGER).  THE LEGISLATIVE HISTORY OF THE LATTER
OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CUSTOM" THAN ARE THE
COMMENTS ON THE SIMILAR LANGUAGE IN SEC. 1983.  SEE CONG. GLOBE, 39TH
CONG., 1ST SESS., 1680 (VETO MESSAGE OF PRESIDENT JOHNSON); ID., AT
1120 (REMARKS OF REP. LOAN, A SUPPORTER, AND REP. J. WILSON, A
MANAGER); ID., AT 1778 (REMARKS OF SEN. JOHNSON, AN OPPONENT); ID., AT
1785 (REMARKS OF SEN. STEWART, A SUPPORTER); ID., AT 475, 500, 1758
(REMARKS OF SEN. TRUMBULL, A MANAGER).     SIMILAR LANGUAGE APPEARED IN
SEC. 8 OF THE FREEDMEN'S BUREAU BILL, WHICH WAS ALSO DEBATED AT THE
FIRST SESSION OF THE 39TH CONGRESS.  IN ADDITION, THE WORD "CUSTOM"
APPEARED IN SEC. 7 OF THE BILL.  SEE ID., AT 209.  HOWEVER, THE PRECISE
LANGUAGE OF BOTH SECTIONS RECEIVED VIRTUALLY NO ATTENTION DURING
DEBATE.  THERE WAS, THOUGH, SOME INDICATION THAT CUSTOM WAS RECOGNIZED
AS DIFFERENT FROM LAW.  SEE ID., AT 318 (REMARKS OF SEN. HENDRICKS, AN
OPPONENT).  SEE ALSO N. 29, INFRA. 

/26/  SEE GENERALLY R. HARRIS, THE QUEST FOR EQUALITY 44-50 (1960). 

/27/  I CONSIDER THE NARROW CONSTRUCTION GIVEN TO SEC. 1985 IN
COLLINS V. HARDYMAN, 341 U.S. 651 (1951), AS NO LONGER BINDING.  SEE
SUPRA, AT 206-210. 

/28/  SECTION 1986 FITS INTO THIS LEGISLATIVE SCHEME BY PROVIDING A
REMEDY AGAINST INDIVIDUALS WHO SHARE RESPONSIBILITY FOR CONSPIRATORIAL
WRONGS UNDER SEC. 1985 BY FAILING TO MAKE REASONABLE USE OF THEIR POWER
TO PREVENT THE PERPETRATION OF SUCH WRONGS. 

/29/  I THINK THIS IS ALSO AN ADEQUATE ANSWER TO THE ARGUMENT MADE
IN THE CIVIL RIGHTS CASES, SUPRA, AT 17, THAT A PRIVATE PARTY DIFFERS
FROM A STATE IN THAT THE FORMER CANNOT, WHEREAS THE LATTER CAN, DEPRIVE
A PERSON OF A CONSTITUTIONAL RIGHT IN THE SENSE OF EXTINGUISHING THAT
RIGHT.  NEITHER A PRIVATE PERSON NOR A STATE CAN EXTINGUISH OR IMPAIR A
CONSTITUTIONAL RIGHT, ALTHOUGH A STATE CAN CERTAINLY VIOLATE, INFRINGE,
OR FAIL TO PROTECT A CONSTITUTIONAL RIGHT.  A PRIVATE PERSON CAN
VIOLATE OR INFRINGE A CONSTITUTIONAL RIGHT WHEN, DUE TO SOME FACTUAL
CIRCUMSTANCES, HIS ACTION CONSTITUTES STATE ACTION, OR WHEN HIS WHOLLY
PRIVATE CONDUCT VIOLATES SOME CONSTITUTIONAL PROHIBITION OF SUCH
CONDUCT, E.G., SEC. 1 OF THE THIRTEENTH AMENDMENT.  CF. CIVIL RIGHTS
CASES, SUPRA, AT 20; CLYATT V. UNITED STATES, 197 U.S. 207, 216 (1905);
BAILEY V. ALABAMA, 219 U.S. 219, 241 (1911).  A PRIVATE PERSON CAN
ALSO, OF COURSE, BY WHOLLY PRIVATE CONDUCT INTERFERE WITH THE EXERCISE
OR ENJOYMENT OF CONSTITUTIONAL RIGHTS THAT RUN ONLY AGAINST THE
STATES.  UNITED STATES V. GUEST, SUPRA, AT 774-784 (OPINION OF BRENNAN,
J.).  THUS INTERFERENCE CAN OCCUR EVEN WHERE THERE HAS BEEN NO
VIOLATION OF THE CONSTITUTIONAL RIGHT BY A PARTY HAVING A DUTY
CORRELATIVE TO IT. 

/30/  IN JONES V. ALFRED H. MAYER CO., SUPRA, AT 423 N. 30, THE
COURT NOTED THAT THE SAME SESSION OF CONGRESS THAT PASSED THE CIVIL
RIGHTS ACT OF 1866 ALSO PASSED A FREEDMEN'S BUREAU BILL, SEC. 7 OF
WHICH EXTENDED MILITARY JURISDICTION OVER PARTS OF THE SOUTH WHERE "IN
CONSEQUENCE OF ANY STATE OR LOCAL LAW, ORDINANCE, POLICE, OR OTHER
REGULATION, CUSTOM, OR PREJUDICE, ANY OF THE CIVIL RIGHTS . . .
BELONGING TO WHITE PERSONS . . . ARE REFUSED OR DENIED TO (NEGROES . .
. ON ACCOUNT OF RACE, COLOR, OR ANY PREVIOUS CONDITION OF SLAVERY OR
INVOLUNTARY SERVITUDE . . . ."  SEE CONG. GLOBE, 39TH CONG., 1ST SESS.,
209, 318.  THE COURT POINTED OUT THAT ALTHOUGH THE BILL WAS VETOED BY
PRESIDENT JOHNSON, IT "WAS NONETHELESS SIGNIFICANT FOR ITS RECOGNITION
THAT THE 'RIGHT TO PURCHASE (PROPERTY)' WAS A RIGHT THAT COULD BE
'REFUSED OR DENIED' BY 'CUSTOM OR PREJUDICE' AS WELL AS BY 'STATE OR
LOCAL LAW.'"  THE COURT ALSO OBSERVED:  "OF COURSE AN 'ABROGATION OF
CIVIL RIGHTS MADE "IN CONSEQUENCE OF . . . CUSTOM, OR PREJUDICE" MIGHT
AS EASILY BE PERPETRATED BY PRIVATE INDIVIDUALS OR BY UNOFFICIAL
COMMUNITY ACTIVITY AS BY STATE OFFICERS ARMED WITH STATUTE OR
ORDINANCE.'" 

/31/  I AGREE WITH THE COURT, FOR THE REASONS STATED IN ITS OPINION,
THAT THE RELEVANT CUSTOM IN THIS CASE WOULD BE ONE OF SEGREGATING THE
RACES IN DINING FACILITIES, RATHER THAN ONE OF REFUSING TO SERVE WHITE
PERSONS IN THE COMPANY OF NEGROES.  OF COURSE, I DO NOT AGREE THAT THE
CUSTOM MUST BE SHOWN TO HAVE BEEN "STATE ENFORCED." 

/32/  TEXAS V. WHITE WAS OVERRULED ON AN UNRELATED ISSUE IN MORGAN
V. UNITED STATES, 113 U.S. 476, 496 (1885).  THEREAFTER, IT WAS QUOTED
APPROVINGLY ON THE MEANING OF "STATE" IN MCPHERSON V. BLACKER, 146 U.S.
1, 25 (1892). 

/33/  IT IS ONLY SUPERFICIALLY ODD THAT A VIOLATION OF A
CONSTITUTIONAL RIGHT MAY BE ACTIONABLE UNDER SEC. 1983 IF THE VIOLATION
OCCURS IN ONE STATE WHERE THERE IS A CUSTOM, BUT NOT IN ANOTHER STATE
WHERE THERE IS NOT.  IN BOTH CASES IT WOULD BE JUST TO IMPOSE LIABILITY
ON THE VIOLATOR.  HOWEVER, CONGRESS WAS INTERESTED IN PROVIDING A
REMEDY ONLY AGAINST WHAT I HAVE CALLED "MAJOR" VIOLATIONS, AND IT IS
FOR THAT REASON THAT LIABILITY MAY VARY FROM ONE STATE TO ANOTHER. 
SIMILARLY, PRIVATELY CHOSEN DISCRIMINATION WILL CONSTITUTE STATE ACTION
IN SOME STATES, BUT NOT IN OTHERS, DEPENDING ON THE PUBLIC POLICIES OF
THE DIFFERENT STATES.  THAT RESULT, TOO, IS DICTATED BY SOUND
CONSIDERATIONS OF PRINCIPLE AND POLICY, THOUGH REFLECTED IN THE
CONSTITUTION RATHER THAN IN A STATUTE. 

/34/  MOREOVER, THERE WAS EVIDENCE BELOW THAT RESPONDENT'S ATTENTION
WAS EXPRESSLY CALLED TO THE CIVIL RIGHTS ACT. 

ELEANOR JACKSON PIEL ARGUED THE CAUSE FOR PETITIONER.  WITH HER ON
THE BRIEFS WAS MELVIN L. WULF. 

SANFORD M. LITVACK ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WERE JAMES R. WITHROW, JR., AND ALFRED H. HODDINOTT, JR.
..END :




BOYS MARKETS V. CLERKS UNION, 398 U.S. 235 


       BOYS MARKETS, INC. V. RETAIL CLERKS UNION, LOCAL 770. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 768.  ARGUED APRIL 21-22, 1970-- DECIDED JUNE 1, 1970. 


PETITIONER COMPANY AND RESPONDENT UNION WERE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT CONTAINING A PROVISION THAT ALL CONTROVERSIES
CONCERNING ITS INTERPRETATION OR APPLICATION SHOULD BE RESOLVED BY
ARBITRATION AND THAT THERE SHOULD BE NO WORK STOPPAGE, LOCKOUT,
PICKETING, OR BOYCOTTS DURING THE LIFE OF THE CONTRACT.  A DISPUTE
AROSE AND, WHEN PETITIONER DID NOT ACCEDE TO RESPONDENT'S DEMAND, A
STRIKE WAS CALLED AND THE UNION BEGAN TO PICKET PETITIONER'S
ESTABLISHMENT.  PETITIONER'S EFFORT TO INVOKE THE CONTRACT'S
ARBITRATION PROCEDURES BEING UNSUCCESSFUL, IT SOUGHT INJUNCTIVE RELIEF
IN THE STATE COURT, WHICH ISSUED A TEMPORARY RESTRAINING ORDER.  THE
UNION REMOVED THE CASE TO THE FEDERAL DISTRICT COURT, WHICH ORDERED
ARBITRATION AND ENJOINED THE STRIKE AND THE PICKETING.  THE COURT OF
APPEALS REVERSED, CONSIDERING ITSELF BOUND BY SINCLAIR REFINING CO. V.
ATKINSON, 370 U.S. 195 (1962), WHICH HELD THAT SEC. 4 OF THE NORRIS
LAGUARDIA ACT BARS A FEDERAL DISTRICT COURT FROM ENJOINING A STRIKE IN
BREACH OF A NO-STRIKE CLAUSE IN A COLLECTIVE-BARGAINING AGREEMENT, EVEN
THOUGH THAT AGREEMENT CONTAINS BINDING ARBITRATION PROVISIONS
ENFORCEABLE UNDER SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT. 
HELD:  IN THE CIRCUMSTANCES OF THIS CASE-- WHERE THE GRIEVANCE WAS
SUBJECT TO ARBITRATION UNDER THE COLLECTIVE-BARGAINING AGREEMENT,
PETITIONER WAS READY FOR ARBITRATION WHEN THE STRIKE WAS ENJOINED, AND
THE DISTRICT COURT CONCLUDED THAT RESPONDENT'S VIOLATIONS OF THE NO
STRIKE CLAUSE WERE CAUSING PETITIONER IRREPARABLE INJURY-- THE NORRIS
LAGUARDIA ACT DOES NOT BAR THE GRANTING OF INJUNCTIVE RELIEF.  SINCLAIR
REFINING CO. V. ATKINSON, SUPRA, OVERRULED.  PP. 240-255. 

(A) THE DOCTRINE OF STARE DECISIS, "A PRINCIPLE OF POLICY AND NOT A
MECHANICAL FORMULA," DOES NOT BAR RE-EXAMINATION OF SINCLAIR.  PP. 240
241. 

(B) THE MERE SILENCE OF CONGRESS AFTER SINCLAIR WAS DECIDED DOES NOT
FORECLOSE RECONSIDERATION OF THAT DECISION.  PP. 241-242. 

(C) ARBITRATION IS AN IMPORTANT INSTRUMENT OF FEDERAL POLICY FOR
RESOLVING LABOR DISPUTES, AND A REFUSAL TO ARBITRATE IS NOT AN ABUSE
AGAINST WHICH THE NORRIS-LAGUARDIA ACT WAS AIMED.  TEXTILE WORKERS
UNION V. LINCOLN MILLS, 353 U.S. 448 (1957).  PP. 242-243. 

(D) THIS COURT'S HOLDING IN AVCO CORP. V. AERO LODGE, 735, 390 U.S.
557 (1968), THAT SEC. 301(A) SUITS INITIALLY BROUGHT IN STATE COURTS
ARE REMOVABLE TO FEDERAL COURTS (A DECISION WHICH IN CONJUNCTION WITH
SINCLAIR HAD THE EFFECT OF OUSTING STATE COURTS OF JURISDICTION IN SUCH
CASES WHERE INJUNCTIVE RELIEF IS SOUGHT FOR BREACH OF A NO-STRIKE
OBLIGATION), CONTRAVENES THE CONGRESSIONAL PURPOSE EMBODIED IN SEC.
301(A) TO SUPPLEMENT, AND NOT ENCROACH UPON, THE PRE-EXISTING
JURISDICTION OF STATE COURTS.  AVCO HAS CREATED AN ANOMALOUS SITUATION
URGENTLY NECESSITATING RECONSIDERATION OF SINCLAIR.  PP. 244-245. 

(E) CONGRESS DID NOT INTEND THAT THE REMOVAL PROCEDURE BE USED TO
FORECLOSE COMPLETELY INJUNCTIVE AND OTHER REMEDIES OTHERWISE AVAILABLE
IN THE STATE COURTS.  P. 246. 

(F) EXTENDING SINCLAIR TO THE STATES WOULD BE AN UNACCEPTABLE
RESOLUTION OF THE DILEMMA CREATED BY SINCLAIR AND AVCO BECAUSE IT WOULD
SUBSTANTIALLY LESSEN THE EMPLOYERS' INCENTIVE TO AGREE TO SUBMIT
GRIEVANCES TO ARBITRATION IN EXCHANGE FOR THE UNIONS' UNDERTAKINGS TO
REFRAIN FROM STRIKING AND WOULD TOTALLY ELIMINATE, CONTRARY TO
CONGRESSIONAL INTENT, THE INJUNCTION AS THE MOST EFFECTIVE DEVICE TO
ENFORCE NO-STRIKE OBLIGATIONS.  PP. 247-249. 

(G) THE LITERAL TERMS OF SEC. 4 OF THE NORRIS-LAGUARDIA ACT MUST BE
ACCOMMODATED TO THE SUBSEQUENTLY ENACTED PROVISIONS OF SEC. 301(A) OF
THE LABOR MANAGEMENT RELATIONS ACT AND THE PURPOSES OF ARBITRATION,
EQUITABLE REMEDIES TO ENFORCE WHICH ARE ESSENTIAL TO FURTHER
CONGRESSIONAL POLICY FOR PEACEFULLY RESOLVING LABOR DISPUTES.  PP. 249
253. 

(H) THE NARROW HOLDING IN THIS CASE COMPORTS WITH THE PRINCIPLES OF
THE DISSENT IN SINCLAIR, SUPRA, AT 228, WHICH THE COURT ADOPTS AS
GUIDELINES FOR THE DISTRICT COURTS IN DETERMINING WHETHER TO GRANT
INJUNCTIVE RELIEF.  PP. 253-254. 

416 F.2D 368, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE RE-EXAMINE THE HOLDING OF SINCLAIR REFINING CO. V.
ATKINSON, 370 U.S. 195 (1962), THAT THE ANTI-INJUNCTION PROVISIONS OF
THE NORRIS-LAGUARDIA ACT /1/  PRECLUDE A FEDERAL DISTRICT COURT FROM
ENJOINING A STRIKE IN BREACH OF A NO-STRIKE OBLIGATION UNDER A
COLLECTIVE-BARGAINING AGREEMENT, EVEN THOUGH THAT AGREEMENT CONTAINS
PROVISIONS, ENFORCEAABLE UNDER SEC. 301(A) OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, /2/  FOR BINDING ARBITRATION OF THE GRIEVANCE
DISPUTE CONCERNING WHICH THE STRIKE WAS CALLED.  THE COURT OF APPEALS
FOR THE NINTH CIRCUIT, CONSIDERING ITSELF BOUND BY SINCLAIR, REVERSED
THE GRANT BY THE DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
OF PETITIONER'S PRAYER FOR INJUNCTIVE RELIEF.  416 F.2D 368 (1969).  WE
GRANTED CERTIORARI.  396 U.S. 1000 (1970).  HAVING CONCLUDED THAT
SINCLAIR WAS ERRONEOUSLY DECIDED AND THAT SUBSEQUENT EVENTS HAVE
UNDERMINED ITS CONTINUING VALIDITY, WE OVERRULE THAT DECISION AND
REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

  I 

IN FEBRUARY 1969, AT THE TIME OF THE INCIDENTS THAT PRODUCED THIS
LITIGATION, PETITIONER AND RESPONDENT WERE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT WHICH PROVIDED, INTER ALIA, THAT ALL CONTROVERSIES
CONCERNING ITS INTERPRETATION OR APPLICATION SHOULD BE RESOLVED BY
ADJUSTMENT AND ARBITRATION PROCEDURES SET FORTH THEREIN /3/  AND THAT,
DURING THE LIFE OF THE CONTRACT, THERE SHOULD BE "NO CESSATION OR
STOPPAGE OF WORK, LOCK-OUT, PICKETING OR BOYCOTTS . . . ."  /4/  THE
DISPUTE AROSE WHEN PETITIONER'S FROZEN FOODS SUPERVISOR AND CERTAIN
MEMBERS OF HIS CREW WHO WERE NOT MEMBERS OF THE BARGAINING UNIT BEGAN
TO REARRANGE MERCHANDISE IN THE FROZEN FOOD CASES OF ONE OF
PETITIONER'S SUPERMARKETS.  A UNION REPRESENTATIVE INSISTED THAT THE
FOOD CASES BE STRIPPED OF ALL MERCHANDISE AND BE RESTOCKED BY UNION
PERSONNEL.  WHEN PETITIONER DID NOT ACCEDE TO THE UNION'S DEMAND, A
STRIKE WAS CALLED AND THE UNION BEGAN TO PICKET PETITIONER'S
ESTABLISHMENT.  THEREUPON PETITIONER DEMANDED THAT THE UNION CEASE THE
WORK STOPPAGE AND PICKETING AND SOUGHT TO INVOKE THE GRIEVANCE AND
ARBITRATION PROCEDURES SPECIFIED IN THE CONTRACT. 

THE FOLLOWING DAY, SINCE THE STRIKE HAD NOT BEEN TERMINATED,
PETITIONER FILED A COMPLAINT IN CALIFORNIA SUPERIOR COURT SEEKING A
TEMPORARY RESTRAINING ORDER, A PRELIMINARY AND PERMANENT INJUNCTION,
AND SPECIFIC PERFORMANCE OF THE CONTRACTUAL ARBITRATION PROVISION.  THE
STATE COURT ISSUED A TEMPORARY RESTRAINING ORDER FORBIDDING
CONTINUATION OF THE STRIKE AND ALSO AN ORDER TO SHOW CAUSE WHY A
PRELIMINARY INJUNCTION SHOULD NOT BE GRANTED.  SHORTLY THEREAFTER, THE
UNION REMOVED THE CASE TO THE FEDERAL DISTRICT COURT AND THERE MADE A
MOTION TO QUASH THE STATE COURT'S TEMPORARY RESTRAINING ORDER.  IN
OPPOSITION, PETITIONER MOVED FOR AN ORDER COMPELLING ARBITRATION AND
ENJOINING CONTINUATION OF THE STRIKE.  CONCLUDING THAT THE DISPUTE WAS
SUBJECT TO ARBITRATION UNDER THE COLLECTIVE-BARGAINING AGREEMENT AND
THAT THE STRIKE WAS IN VIOLATION OF THE CONTRACT, THE DISTRICT COURT
ORDERED THE PARTIES TO ARBITRATE THE UNDERLYING DISPUTE AND
SIMULTANEOUSLY ENJOINED THE STRIKE, ALL PICKETING IN THE VICINITY OF
PETITIONER'S SUPERMARKET, AND ANY ATTEMPTS BY THE UNION TO INDUCE THE
EMPLOYEES TO STRIKE OR TO REFUSE TO PERFORM THEIR SERVICES. 

        II 

AT THE OUTSET, WE ARE MET WITH RESPONDENT'S CONTENTION THAT SINCLAIR
OUGHT NOT TO BE DISTURBED BECAUSE THE DECISION TURNED ON A QUESTION OF
STATUTORY CONSTRUCTION WHICH CONGRESS CAN ALTER AT ANY TIME.  SINCE
CONGRESS HAS NOT MODIFIED OUR CONCLUSIONS IN SINCLAIR, EVEN THOUGH IT
HAS BEEN URGED TO DO SO, /5/  RESPONDENT ARGUES THAT PRINCIPLES OF
STARE DECISIS SHOULD GOVERN THE PRESENT CASE. 

WE DO NOT AGREE THAT THE DOCTRINE OF STARE DECISIS BARS A RE
EXAMINATION OF SINCLAIR IN THE CIRCUMSTANCES OF THIS CASE.  WE FULLY
RECOGNIZE THAT IMPORTANT POLICY CONSIDERATIONS MILITATE IN FAVOR OF
CONTINUITY AND PREDICTABILITY IN THE LAW.  NEVERTHELESS, AS MR. JUSTICE
FRANKFURTER WROTE FOR THE COURT, "(STARE DECISIS IS A PRINCIPLE OF
POLICY AND NOT A MECHANICAL FORMULA OF ADHERENCE TO THE LATEST
DECISION, HOWEVER RECENT AND QUESTIONABLE, WHEN SUCH ADHERENCE INVOLVES
COLLISION WITH A PRIOR DOCTRINE MORE EMBRACING IN ITS SCOPE,
INTRINSICALLY SOUNDER, AND VERIFIED BY EXPERIENCE."  HELVERING V.
HALLOCK, 309 U.S. 106, 119 (1940).  SEE SWIFT & CO. V. WICKHAM, 382
U.S. 111, 116 (1965).  IT IS PRECISELY BECAUSE SINCLAIR STANDS AS A
SIGNIFICANT DEPARTURE FROM OUR OTHERWISE CONSISTENT EMPHASIS UPON THE
CONGRESSIONAL POLICY TO PROMOTE THE PEACEFUL SETTLEMENT OF LABOR
DISPUTES THROUGH ARBITRATION /6/  AND OUR EFFORTS TO ACCOMMODATE AND
HARMONIZE THIS POLICY WITH THOSE UNDERLYING THE ANTI-INJUNCTION
PROVISIONS OF THE NORRIS-LAGUARDIA ACT /7/  THAT WE BELIEVE SINCLAIR
SHOULD BE RECONSIDERED.  FURTHERMORE, IN LIGHT OF DEVELOPMENTS
SUBSEQUENT TO SINCLAIR, IN PARTICULAR OUR DECISION IN AVCO CORP. V.
AERO LODGE 735, 390 U.S. 557 (1968), IT HAS BECOME CLEAR THAT THE
SINCLAIR DECISION DOES NOT FURTHER BUT RATHER FRUSTRATES REALIZATION OF
AN IMPORTANT GOAL OF OUR NATIONAL LABOR POLICY. 

NOR CAN WE AGREE THAT CONCLUSIVE WEIGHT SHOULD BE ACCORDED TO THE
FAILURE OF CONGRESS TO RESPOND TO SINCLAIR ON THE THEORY THAT
CONGRESSIONAL SILENCE SHOULD BE INTERPRETED AS ACCEPTANCE OF THE
DECISION.  THE COURT HAS CAUTIONED THAT "(IT IS AT BEST TREACHEROUS TO
FIND IN CONGRESSIONAL SILENCE ALONE THE ADOPTION OF A CONTROLLING RULE
OF LAW."  GIROUARD V. UNITED STATES, 328 U.S. 61, 69 (1946). 
THEREFORE, IN THE ABSENCE OF ANY PERSUASIVE CIRCUMSTANCES EVIDENCING A
CLEAR DESIGN THAT CONGRESSIONAL INACTION BE TAKEN AS ACCEPTANCE OF
SINCLAIR, THE MERE SILENCE OF CONGRESS IS NOT A SUFFICIENT REASON FOR
REFUSING TO RECONSIDER THE DECISION.  HELVERING V. HALLOCK, SUPRA, AT
119-120. 

      III 

FROM THE TIME TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448
(1957), WAS DECIDED,WE HAVE FREQUENTLY FOUND IT NECESSARY TO CONSIDER
VARIOUS SUBSTANTIVE AND PROCEDURAL ASPECTS OF FEDERAL LABOR CONTRACT
LAW AND QUESTIONS CONCERNING ITS APPLICATION IN BOTH STATE AND FEDERAL
COURTS.  LINCOLN MILLS HELD GENERALLY THAT "THE SUBSTANTIVE LAW TO
APPLY IN SUITS UNDER SEC. 301(A) IS FEDERAL LAW, WHICH THE COURTS MUST
FASHION FROM THE POLICY OF OUR NATIONAL LABOR LAWS."  353 U.S.,AT 456,
AND MORE SPECIFICALLY THAT A UNION CAN OBTAIN SPECIFIC PERFORMANCE OF
AN EMPLOYER'S PROMISE TO ARBITRATE GRIEVANCES.  WE REJECTED THE
CONTENTION THAT THE ANTI-INJUNCTION PROSCRIPTIONS OF THE NORRIS
LAGUARDIA ACT PROHIBITED THIS TYPE OF RELIEF, NOTING THAT A REFUSAL TO
ARBITRATE WAS NOT "PART AND PARCEL OF THE ABUSES AGAINST WHICH THE ACT
WAS AIMED," ID., AT 458, AND THAT THE ACT ITSELF MANIFESTS A POLICY
DETERMINATION THAT ARBITRATION SHOULD BE ENCOURAGED.  SEE 29 U.S.C.
108.  /8/  SUBSEQUENTLY IN THE STEELWORKERS TRILOGY /9/  WE EMPHASIZED
THE IMPORTANCE OF ARBITRATION AS AN INSTRUMENT OF FEDERAL POLICY FOR
RESOLVING DISPUTES BETWEEN LABOR AND MANAGEMENT AND CAUTIONED THE LOWER
COURTS AGAINST USURPING THE FUNCTIONS OF THE ARBITRATOR. 

SERIOUS QUESTIONS REMAINED, HOWEVER, CONCERNING THE ROLE THAT STATE
COURTS WERE TO PLAY IN SUITS INVOLVING COLLECTIVE-BARGAINING
AGREEMENTS.  CONFRONTED WITH SOME OF THESE PROBLEMS IN CHARLES DOWD BOX
CO. V. COURTNEY, 368 U.S. 502 (1962), WE HELD THAT CONGRESS CLEARLY
INTENDED NOT TO DISTURB THE PRE-EXISTING JURISDICTION OF THE STATE
COURTS OVER SUITS FOR VIOLATIONS OF COLLECTIVE-BARGAINING AGREEMENTS. 
WE NOTED THAT THE 

"CLEAR IMPLICATION OF THE ENTIRE RECORD OF THE CONGRESSIONAL DEBATES
IN BOTH 1946 AND 1947 IS THAT THE PURPOSE OF CONFERRING JURISDICTION
UPON THE FEDERAL DISTRICT COURTS WAS NOT TO DISPLACE, BUT TO
SUPPLEMENT, THE THOROUGHLY CONSIDERED JURISDICTION OF THE COURTS OF THE
VARIOUS STATES OVER CONTRACTS MADE BY LABOR ORGANIZATIONS."  ID., AT
511. 

SHORTLY AFTER THE DECISION IN DOWD BOX, WE SUSTAINED, IN TEAMSTERS
LOCAL 174 V. LUCAS FLOUR CO., 369 U.S. 95 (1962), AN AWARD OF DAMAGES
BY A STATE COURT TO AN EMPLOYER FOR A BREACH BY THE UNION OF A NO
STRIKE PROVISION IN ITS CONTRACT.  WHILE EMPHASIZING THAT "IN ENACTING
SEC. 301 CONGRESS INTENDED DOCTRINES OF FEDERAL LABOR LAW UNIFORMLY TO
PREVAIL OVER INCONSISTENT LOCAL RULES," ID., AT 104, WE DID NOT
CONSIDER THE APPLICABILITY OF THE NORRIS-LAGUARDIA ACT TO STATE COURT
PROCEEDINGS BECAUSE THE EMPLOYER'S PRAYER FOR RELIEF SOUGHT ONLY
DAMAGES AND NOT SPECIFIC PERFORMANCE OF A NO-STRIKE OBLIGATION. 

SUBSEQUENT TO THE DECISION IN SINCLAIR, WE HELD IN AVCO CORP. V. AERO
LODGE 735, SUPRA, THAT SEC. 301(A) SUITS INITIALLY BROUGHT IN STATE
COURTS MAY BE REMOVED TO THE DESIGNATED FEDERAL FORUM UNDER THE FEDERAL
QUESTION REMOVAL JURISDICTION DELINEATED IN 28 U.S.C. 1441.  IN SO
HOLDING, HOWEVER, THE COURT EXPRESSLY LEFT OPEN THE QUESTIONS WHETHER
STATE COURTS ARE BOUND BY THE ANTI-INJUNCTION PROSCRIPTIONS OF THE
NORRIS-LAGUARDIA ACT AND WHETHER FEDERAL COURTS, AFTER REMOVAL OF A
SEC. 301(A) ACTION, ARE REQUIRED TO DISSOLVE ANY INJUNCTIVE RELIEF
PREVIOUSLY GRANTED BY THE STATE COURTS.  SEE GENERALLY GENERAL ELECTRIC
CO. V. LOCAL UNION 191, 413 F.2D 964 (C.A. 5TH CIR. 1969) (DISSOLUTION
OF STATE INJUNCTION REQUIRED).  THREE JUSTICES WHO CONCURRED EXPRESSED
THE VIEW THAT SINCLAIR SHOULD BE RECONSIDERED "UPON AN APPROPRIATE
FUTURE OCCASION."  390 U.S.,AT 562 (STEWART, J., CONCURRING).  /10/ 

THE DECISION IN AVCO, VIEWED IN THE CONTEXT OF LINCOLN MILLS AND ITS
PROGENY, HAS PRODUCED AN ANOMALOUS SITUATION WHICH, IN OUR VIEW, MAKES
URGENT THE RECONSIDERATION OF SINCLAIR.  THE PRINCIPAL PRACTICAL EFFECT
OF AVCO AND SINCLAIR TAKEN TOGETHER IS NOTHING LESS THAN TO OUST STATE
COURTS OF JURISDICTION IN SEC. 301(A) SUITS WHERE INJUNCTIVE RELIEF IS
SOUGHT FOR BREACH OF A NO-STRIKE OBLIGATION.  UNION DEFENDANTS CAN, AS
A MATTER OF COURSE, OBTAIN REMOVAL TO A FEDERAL COURT, /11/  AND THERE
IS OBVIOUSLY A COMPELLING INCENTIVE FOR THEM TO DO SO IN ORDER TO GAIN
THE ADVANTAGE OF THE STRICTURES UPON INJUNCTIVE RELIEF WHICH SINCLAIR
IMPOSES ON FEDERAL COURTS.  THE SANCTIONING OF THIS PRACTICE, HOWEVER,
IS WHOLLY INCONSISTENT WITH OUR CONCLUSION IN DOWD BOX THAT THE
CONGRESSIONAL PURPOSE EMBODIED IN SEC. 301(A) WAS TO SUPPLEMENT, AND
NOT TO ENCROACH UPON, THE PRE-EXISTING JURISDICTION OF THE STATE
COURTS.  /12/  IT IS IRONIC INDEED THAT THE VERY PROVISION THAT
CONGRESS CLEARLY INTENDED TO PROVIDE ADDITIONAL REMEDIES FOR BREACH OF
COLLECTIVE-BARGAINING AGREEMENTS HAS BEEN EMPLOYED TO DISPLACE
PREVIOUSLY EXISTING STATE REMEDIES.  WE ARE NOT AT LIBERTY THUS TO
DEPART FROM THE CLEARLY EXPRESSED CONGRESSIONAL POLICY TO THE
CONTRARY. 

ON THE OTHER HAND, TO THE EXTENT THAT WIDELY DISPARATE REMEDIES
THEORETICALLY REMAIN AVAILABLE IN STATE, AS OPPOSED TO FEDERAL, COURTS,
THE FEDERAL POLICY OF LABOR LAW UNIFORMITY ELABORATED IN LUCAS FLOUR
CO., IS SERIOUSLY OFFENDED.  THIS POLICY, OF COURSE, COULD HARDLY
REQUIRE, AS A PRACTICAL MATTER, THAT LABOR LAW BE ADMINISTERED
IDENTICALLY IN ALL COURTS, FOR UNDOUBTEDLY A CERTAIN DIVERSITY EXISTS
AMONG THE STATE AND FEDERAL SYSTEMS IN MATTERS OF PROCEDURAL AND
REMEDIAL DETAIL, A FACT THAT CONGRESS EVIDENTLY TOOK INTO ACCOUNT IN
DECIDING NOT TO DISTURB THE TRADITIONAL JURISDICTION OF THE STATES. 
THE INJUNCTION, HOWEVER, IS SO IMPORTANT A REMEDIAL DEVICE,
PARTICULARLY IN THE ARBITRATION CONTEXT, THAT ITS AVAILABILITY OR
NONAVAILABILITY IN VARIOUS COURTS WILL NOT ONLY PRODUCE RAMPANT FORUM
SHOPPING AND MANEUVERING FROM ONE COURT TO ANOTHER BUT WILL ALSO
GREATLY FRUSTRATE ANY RELATIVE UNIFORMITY IN THE ENFORCEMENT OF
ARBITRATION AGREEMENTS. 

FURTHERMORE, THE EXISTING SCHEME,WITH THE INJUNCTION REMEDY
TECHNICALLY AVAILABLE IN THE STATE COURTS BUT RENDERED INEFFICACIOUS BY
THE REMOVAL DEVICE, ASSIGNS TO REMOVAL PROCEEDINGS A TOTALLY UNINTENDED
FUNCTION.  WHILE THE UNDERLYING PURPOSES OF CONGRESS IN PROVIDING FOR
FEDERAL QUESTION REMOVAL JURISDICTION REMAIN SOMEWHAT OBSCURE, /13/
THERE HAS NEVER BEEN A SERIOUS CONTENTION THAT CONGRESS INTENDED THAT
THE REMOVAL MECHANISM BE UTILIZED TO FORECLOSE COMPLETELY REMEDIES
OTHERWISE AVAILABLE IN THE STATE COURTS.  ALTHOUGH FEDERAL QUESTION
REMOVAL JURISDICTION MAY WELL HAVE BEEN INTENDED TO PROVIDE A FORUM FOR
THE PROTECTION OF FEDERAL RIGHTS WHERE SUCH PROTECTION WAS DEEMED
NECESSARY OR TO ENCOURAGE THE DEVELOPMENT OF EXPERTISE BY THE FEDERAL
COURTS IN THE INTERPRETATION OF FEDERAL LAW, THERE IS NO INDICATION
THAT CONGRESS INTENDED BY THE REMOVAL MECHANISM TO EFFECT A WHOLESALE
DISLOCATION IN THE ALLOCATION OF JUDICIAL BUSINESS BETWEEN THE STATE
AND FEDERAL COURTS.  CF. CITY OF GREENWOOD V. PEACOCK, 384 U.S. 808
(1966). 

IT IS UNDOUBTEDLY TRUE THAT EACH OF THE FOREGOING OBJECTIONS TO
SINCLAIR-AVCO COULD BE REMEDIED EITHER BY OVERRULING SINCLAIR OR BY
EXTENDING THAT DECISION TO THE STATES.  WHILE SOME COMMENTATORS HAVE
SUGGESTED THAT THE SOLUTION TO THE PRESENT UNSATISFACTORY SITUATION
DOES LIE IN THE EXTENSION OF THE SINCLAIR PROHIBITION TO STATE COURT
PROCEEDINGS, /14/  WE AGREE WITH CHIEF JUSTICE TRAYNOR OF THE
CALIFORNIA SUPREME COURT THAT "WHETHER OR NOT CONGRESS COULD DEPRIVE
STATE COURTS OF THE POWER TO GIVE SUCH (INJUNCTIVE) REMEDIES WHEN
ENFORCING COLLECTIVE BARGAINING AGREEMENTS, IT HAS NOT ATTEMPTED TO DO
SO EITHER IN THE NORRIS-LAGUARDIA ACT OR SECTION 301."  MCCARROLL V.
LOS ANGELES COUNTY DIST. COUNCIL OF CARPENTERS, 49 CAL.2D 45, 63, 315
P.2D 322, 332 (1957), CERT. DENIED, 355 U.S. 932 (1958).  SEE, E.G.,
AMERICAN DREDGING CO. V. MARINE LOCAL 25, 338 F.2D 837 (C.A. 3D CIR.
1964), CERT. DENIED, 380 U.S. 935 (1965); SHAW ELECTRIC CO. V.
I.B.E.W., 418 PA. 1, 208 A.2D 769 (1965).     AN ADDITIONAL REASON FOR
NOT RESOLVING THE EXISTING DILEMMA BY EXTENDING SINCLAIR TO THE STATES
IS THE DEVASTATING IMPLICATIONS FOR THE ENFORCEABILITY OF ARBITRATION
AGREEMENTS AND THEIR ACCOMPANYING NO-STRIKE OBLIGATIONS IF EQUITABLE
REMEDIES WERE NOT AVAILABLE.  /15/  AS WE HAVE PREVIOUSLY INDICATED, A
NO-STRIKE OBLIGATION, EXPRESS OR IMPLIED, IS THE QUID PRO QUO FOR AN
UNDERTAKING BY THE EMPLOYER TO SUBMIT GRIEVANCE DISPUTES TO THE PROCESS
OF ARBITRATION.  SEE TEXTILE WORKERS UNION V. LINCOLN MILLS, SUPRA, AT
455.  /16/  ANY INCENTIVE FOR EMPLOYERS TO ENTER INTO SUCH AN
ARRANGEMENT IS NECESSARILY DISSIPATED IF THE PRINCIPAL AND MOST
EXPEDITIOUS METHOD BY WHICH THE NO-STRIKE OBLIGATION CAN BE ENFORCED IS
ELIMINATED.  WHILE IT IS OF COURSE TRUE, AS RESPONDENT CONTENDS, THAT
OTHER AVENUES OF REDRESS, SUCH AS AN ACTION FOR DAMAGES, WOULD REMAIN
OPEN TO AN AGGRIEVED EMPLOYER, AN AWARD OF DAMAGES AFTER A DISPUTE HAS
BEEN SETTLED IS NO SUBSTITUTE FOR AN IMMEDIATE HALT TO AN ILLEGAL
STRIKE.  FURTHERMORE, AN ACTION FOR DAMAGES PROSECUTED DURING OR AFTER
A LABOR DISPUTE WOULD ONLY TEND TO AGGREVATE INDUSTRIAL STRIFE AND
DELAY AN EARLY RESOLUTION OF THE DIFFICULTIES BETWEEN EMPLOYER AND
UNION.  /17/ 

EVEN IF MANAGEMENT IS NOT ENCOURAGED BY THE UNAVAILABILITY OF THE
INJUNCTION REMEDY TO RESIST ARBITRATION AGREEMENTS, THE FACT REMAINS
THAT THE EFFECTIVENESS OF SUCH AGREEMENTS WOULD BE GREATLY REDUCED IF
INJUNCTIVE RELIEF WERE WITHHELD.  INDEED, THE VERY PURPOSE OF
ARBITRATION PROCEDURES IS TO PROVIDE A MECHANISM FOR THE EXPEDITIOUS
SETTLEMENT OF INDUSTRIAL DISPUTES WITHOUT RESORT TO STRIKES, LOCKOUTS,
OR OTHER SELF-HELP MEASURES.  THIS BASIC PURPOSE IS OBVIOUSLY LARGELY
UNDERCUT IF THERE IS NO IMMEDIATE, EFFECTIVE REMEDY FOR THOSE VERY
TACTICS THAT ARBITRATION IS DESIGNED TO OBVIATE.  THUS, BECAUSE
SINCLAIR, IN THE AFTERMATH OF AVCO, CASTS SERIOUS DOUBT UPON THE
EFFECTIVE ENFORCEMENT OF A VITAL ELEMENT OF STABLE LABOR-MANAGEMENT
RELATIONS-- ARBITRATION AGREEMENTS WITH THEIR ATTENDANT NO-STRIKE
OBLIGATIONS-- WE CONCLUDE THAT SINCLAIR DOES NOT MAKE A VIABLE
CONTRIBUTION TO FEDERAL LABOR POLICY. 

        IV 

WE HAVE ALSO DETERMINED THAT THE DISSENTING OPINION IN SINCLAIR
STATES THE CORRECT PRINCIPLES CONCERNING THE ACCOMMODATION NECESSARY
BETWEEN THE SEEMINGLY ABSOLUTE TERMS OF THE NORRIS-LAGUARDIA ACT AND
THE POLICY CONSIDERATIONS UNDERLYING SEC. 301(A).  /18/  370 U.S.,AT
215.  ALTHOUGH WE NEED NOT REPEAT ALL THAT WAS THERE SAID, A FEW POINTS
SHOULD BE EMPHASIZED AT THIS TIME. 

THE LITERAL TERMS OF SEC. 4 OF THE NORRIS-LAGUARDIA ACT MUST BE
ACCOMMODATED TO THE SUBSEQUENTLY ENACTED PROVISIONS OF SEC. 301(A) OF
THE LABOR MANAGEMENT RELATIONS ACT AND THE PURPOSES OF ARBITRATION. 
STATUTORY INTERPRETATION REQUIRES MORE THAN CONCENTRATION UPON ISOLATED
WORDS; RATHER, CONSIDERATION MUST BE GIVEN TO THE TOTAL CORPUS OF
PERTINENT LAW AND THE POLICIES THAT INSPIRED OSTENSIBLY INCONSISTENT
PROVISIONS.  SEE RICHARDS V. UNITED STATES, 369 U.S. 1, 11 (1962);
MASTRO PLASTICS CORP. V. NLRB, 350 U.S. 270, 285 (1956); UNITED STATES
V. HUTCHESON, 312 U.S. 219, 235 (1941). 

THE NORRIS-LAGUARDIA ACT WAS RESPONSIVE TO A SITUATION TOTALLY
DIFFERENT FROM THAT WHICH EXISTS TODAY.  IN THE EARLY PART OF THIS
CENTURY, THE FEDERAL COURTS GENERALLY WERE REGARDED AS ALLIES OF
MANAGEMENT IN ITS ATTEMPT TO PREVENT THE ORGANIZATION AND STRENGTHENING
OF LABOR UNIONS; AND IN THIS INDUSTRIAL STRUGGLE THE INJUNCTION BECAME
A POTENT WEAPON THAT WAS WIELDED AGAINST THE ACTIVITIES OF LABOR
GROUPS.  /19/  THE RESULT WAS A LARGE NUMBER OF SWEEPING DECREES, OFTEN
ISSUED EX PARTE, DRAWN ON AN AD HOC BASIS WITHOUT REGARD TO ANY
SYSTEMATIC ELABORATION OF NATIONAL LABOR POLICY.  SEE DRIVERS' UNION V.
LAKE VALLEY CO., 311 U.S. 91, 102 (1940). 

IN 1932 CONGRESS ATTEMPTED TO BRING SOME ORDER OUT OF THE INDUSTRIAL
CHAOS THAT HAD DEVELOPED AND TO CORRECT THE ABUSES THAT HAD RESULTED
FROM THE INTERJECTION OF THE FEDERAL JUDICIARY INTO UNION-MANAGEMENT
DISPUTES ON THE BEHALF OF MANAGEMENT.  SEE DECLARATION OF PUBLIC
POLICY, NORRIS-LAGUARDIA ACT, SEC. 2, 47 STAT. 70.  CONGRESS,
THEREFORE, DETERMINED INITIALLY TO LIMIT SEVERELY THE POWER OF THE
FEDERAL COURTS TO ISSUE INJUNCTIONS "IN ANY CASE INVOLVING OR GROWING
OUT OF ANY LABOR DISPUTE . . . ."  SEC. 4, 47 STAT. 70.  EVEN AS
INITIALLY ENACTED, HOWEVER, THE PROHIBITION AGAINST FEDERAL INJUNCTIONS
WAS BY NO MEANS ABSOLUTE.  SEE NORRIS-LAGUARDIA ACT, SECS. 7, 8, 9, 47
STAT. 71, 72.  SHORTLY THEREAFTER CONGRESS PASSED THE WAGNER ACT, /20/
DESIGNED TO CURB VARIOUS MANAGEMENT ACTIVITIES THAT TENDED TO
DISCOURAGE EMPLOYEE PARTICIPATION IN COLLECTIVE ACTION. 

AS LABOR ORGANIZATIONS GREW IN STRENGTH AND DEVELOPED TOWARD
MATURITY, CONGRESSIONAL EMPHASIS SHIFTED FROM PROTECTION OF THE NASCENT
LABOR MOVEMENT TO THE ENCOURAGEMENT OF COLLECTIVE BARGAINING AND TO
ADMINISTRATIVE TECHNIQUES FOR THE PEACEFUL RESOLUTION OF INDUSTRIAL
DISPUTES.  THIS SHIFT IN EMPHASIS WAS ACCOMPLISHED, HOWEVER, WITHOUT
EXTENSIVE REVISION OF MANY OF THE OLDER ENACTMENTS, INCLUDING THE ANTI
INJUNCTION SECTION OF THE NORRIS-LAGUARDIA ACT.  THUS IT BECAME THE
TASK OF THE COURTS TO ACCOMMODATE, TO RECONCILE THE OLDER STATUTES WITH
THE MORE RECENT ONES. 

A LEADING EXAMPLE OF THIS ACCOMMODATION PROCESS IS BROTHERHOOD OF
RAILROAD TRAINMEN V. CHICAGO RIVER & IND. R. CO., 353 U.S. 30 (1957). 
THERE WE WERE CONFRONTED WITH A PEACEFUL STRIKE WHICH VIOLATED THE
STATUTORY DUTY TO ARBITRATE IMPOSED BY THE RAILWAY LABOR ACT.  THE
COURT CONCLUDED THAT A STRIKE IN VIOLATION OF A STATUTORY ARBITRATION
DUTY WAS NOT THE TYPE OF SITUATION TO WHICH THE NORRIS-LAGUARDIA ACT
WAS RESPONSIVE, THAT AN IMPORTANT FEDERAL POLICY WAS INVOLVED IN THE
PEACEFUL SETTLEMENT OF DISPUTES THROUGH THE STATUTORILY MANDATED
ARBITRATION PROCEDURE, THAT THIS IMPORTANT POLICY WAS IMPERILED IF
EQUITABLE REMEDIES WERE NOT AVAILABLE TO IMPLEMENT IT, AND HENCE THAT
NORRIS-LAGUARDIA'S POLICY OF NONINTERVENTION BY THE FEDERAL COURTS
SHOULD YIELD TO THE OVERRIDING INTEREST IN THE SUCCESSFUL
IMPLEMENTATION OF THE ARBITRATION PROCESS. 

THE PRINCIPLES ELABORATED IN CHICAGO RIVER ARE EQUALLY APPLICABLE TO
THE PRESENT CASE.  TO BE SURE, CHICAGO RIVER INVOLVED ARBITRATION
PROCEDURES ESTABLISHED BY STATUTE.  HOWEVER, WE HAVE FREQUENTLY NOTED,
IN SUCH CASES AS LINCOLN MILLS, THE STEELWORKERS TRILOGY, AND LUCAS
FLOUR, THE IMPORTANCE THAT CONGRESS HAS ATTACHED GENERALLY TO THE
VOLUNTARY SETTLEMENT OF LABOR DISPUTES WITHOUT RESORT TO SELF-HELP AND
MORE PARTICULARLY TO ARBITRATION AS A MEANS TO THIS END.  INDEED, IT
HAS BEEN STATED THAT LINCOLN MILLS, IN ITS EXPOSITION OF SEC. 301(A),
"WENT A LONG WAY TOWARDS MAKING ARBITRATION THE CENTRAL INSTITUTION IN
THE ADMINISTRATION OF COLLECTIVE BARGAINING CONTRACTS."  /21/ 

THE SINCLAIR DECISION, HOWEVER, SERIOUSLY UNDERMINED THE
EFFECTIVENESS OF THE ARBITRATION TECHNIQUE AS A METHOD PEACEFULLY TO
RESOLVE INDUSTRIAL DISPUTES WITHOUT RESORT TO STRIKES, LOCKOUTS, AND
SIMILAR DEVICES.  CLEARLY EMPLOYERS WILL BE WARY OF ASSUMING
OBLIGATIONS TO ARBITRATE SPECIFICALLY ENFORCEABLE AGAINST THEM WHEN NO
SIMILARLY EFFICACIOUS REMEDY IS AVAILABLE TO ENFORCE THE CONCOMITANT
UNDERTAKING OF THE UNION TO REFRAIN FROM STRIKING.  ON THE OTHER HAND,
THE CENTRAL PURPOSE OF THE NORRIS-LAGUARDIA ACT TO FOSTER THE GROWTH
AND VIABILITY OF LABOR ORGANIZATIONS IS HARDLY RETARDED-- IF ANYTHING,
THIS GOAL IS ADVANCED-- BY A REMEDIAL DEVICE THAT MERELY ENFORCES THE
OBLIGATION THAT THE UNION FREELY UNDERTOOK UNDER A SPECIFICALLY
ENFORCEABLE AGREEMENT TO SUBMIT DISPUTES TO ARBITRATION.  /22/  WE
CONCLUDE, THEREFORE, THAT THE UNAVAILABILITY OF EQUITABLE RELIEF IN THE
ARBITRATION CONTEXT PRESENTS A SERIOUS IMPEDIMENT TO THE CONGRESSIONAL
POLICY FAVORING THE VOLUNTARY ESTABLISHMENT OF A MECHANISM FOR THE
PEACEFUL RESOLUTION OF LABOR DISPUTES, THAT THE CORE PURPOSE OF THE
NORRIS-LAGUARDIA ACT IS NOT SACRIFICED BY THE LIMITED USE OF EQUITABLE
REMEDIES TO FURTHER THIS IMPORTANT POLICY, AND CONSEQUENTLY THAT THE
NORRIS-LAGUARDIA ACT DOES NOT BAR THE GRANTING OF INJUNCTIVE RELIEF IN
THE CIRCUMSTANCES OF THE INSTANT CASE. 

        V 

OUR HOLDING IN THE PRESENT CASE IS A NARROW ONE.  WE DO NOT
UNDERMINE THE VITALITY OF THE NORRIS-LAGUARDIA ACT.  WE DEAL ONLY WITH
THE SITUATION IN WHICH A COLLECTIVE-BARGAINING CONTRACT CONTAINS A
MANDATORY GRIEVANCE ADJUSTMENT OR ARBITRATION PROCEDURE.  NOR DOES IT
FOLLOW FROM WHAT WE HAVE SAID THAT INJUNCTIVE RELIEF IS APPROPRIATE AS
A MATTER OF COURSE IN EVERY CASE OF A STRIKE OVER AN ARBITRABLE
GRIEVANCE.  THE DISSENTING OPINION IN SINCLAIR SUGGESTED THE FOLLOWING
PRINCIPLES FOR THE GUIDANCE OF THE DISTRICT COURTS IN DETERMINING
WHETHER TO GRANT INJUNCTIVE RELIEF-- PRINCIPLES THAT WE NOW ADOPT: 

     "A DISTRICT COURT ENTERTAINING AN ACTION UNDER SEC. 301 MAY
NOT

GRANT INJUNCTIVE RELIEF AGAINST CONCERTED ACTIVITY UNLESS AND

  UNTIL IT DECIDES THAT THE CASE IS ONE IN WHICH AN INJUNCTION

  WOULD BE APPROPRIATE DESPITE THE NORRIS-LAGUARDIA ACT.  WHEN A

  STRIKE IS SOUGHT TO BE ENJOINED BECAUSE IT IS OVER A GRIEVANCE

  WHICH BOTH PARTIES ARE CONTRACTUALLY BOUND TO ARBITRATE, THE

  DISTRICT COURT MAY ISSUE NO INJUNCTIVE ORDER UNTIL IT FIRST HOLDS

  THAT THE CONTRACT DOES HAVE THAT EFFECT; AND THE EMPLOYER SHOULD

  BE ORDERED TO ARBITRATE, AS A CONDITION OF HIS OBTAINING AN

  INJUNCTION AGAINST THE STRIKE.  BEYOND THIS, THE DISTRICT COURT

  MUST, OF COURSE, CONSIDER WHETHER ISSUANCE OF AN INJUNCTION WOULD

  BE WARRANTED UNDER ORDINARY PRINCIPLES OF EQUITY-- WHETHER

  BREACHES ARE OCCURRING AND WILL CONTINUE, OR HAVE BEEN THREATENED

  AND WILL BE COMMITTED; WHETHER THEY HAVE CAUSED OR WILL CAUSE

  IRREPARABLE INJURY TO THE EMPLOYER; AND WHETHER THE EMPLOYER WILL

  SUFFER MORE FROM THE DENIAL OF AN INJUNCTION THAN WILL THE UNION

  FROM ITS ISSUANCE."  370 U.S.,AT 228. 

IN THE PRESENT CASE THERE IS NO DISPUTE THAT THE GRIEVANCE IN
QUESTION WAS SUBJECT TO ADJUSTMENT AND ARBITRATION UNDER THE COLLECTIVE
BARGAINING AGREEMENT AND THAT THE PETITIONER WAS READY TO PROCEED WITH
ARBITRATION AT THE TIME AN INJUNCTION AGAINST THE STRIKE WAS SOUGHT AND
OBTAINED.  THE DISTRICT COURT ALSO CONCLUDED THAT, BY REASON OF
RESPONDENT'S VIOLATIONS OF ITS NO-STRIKE OBLIGATION, PETITIONER "HAS
SUFFERED IRREPARABLE INJURY AND WILL CONTINUE TO SUFFER IRREPARABLE
INJURY."  SINCE WE NOW OVERRULE SINCLAIR, THE HOLDING OF THE COURT OF
APPEALS IN RELIANCE ON SINCLAIR MUST BE REVERSED.  ACCORDINGLY, WE
REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE WITH
DIRECTIONS TO ENTER A JUDGMENT AFFIRMING THE ORDER OF THE DISTRICT
COURT. 

              IT IS SO ORDERED. 

/1/  "NO COURT OF THE UNITED STATES SHALL HAVE JURISDICTION TO ISSUE
ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT INJUNCTION IN ANY CASE
INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE TO PROHIBIT ANY PERSON OR
PERSONS PARTICIPATING OR INTERESTED IN SUCH DISPUTE (AS THESE TERMS ARE
HEREIN DEFINED) FROM DOING, WHETHER SINGLY OR IN CONCERT, ANY OF THE
FOLLOWING ACTS: 

"(A) CEASING OR REFUSING TO PERFORM ANY WORK OR TO REMAIN IN ANY
RELATION OF EMPLOYMENT;

        .          .     .          . 

"(E) GIVING PUBLICITY TO THE EXISTENCE OF, OR THE FACTS INVOLVED IN,
ANY LABOR DISPUTE, WHETHER BY ADVERTISING, SPEAKING, PATROLLING, OR BY
ANY OTHER METHOD NOT INVOLVING FRAUD OR VIOLENCE; 

"(F) ASSEMBLING PEACEABLY TO ACT OR TO ORGANIZE TO ACT IN PROMOTION
OF THEIR INTERESTS IN A LABOR DISPUTE;

        .          .          .          . 

"(I) ADVISING, URGING, OR OTHERWISE CAUSING OR INDUCING WITHOUT
FRAUD OR VIOLENCE THE ACTS HERETOFORE SPECIFIED . . . ."  SEC. 4, 47
STAT. 70, 29 U.S.C. 104. 

/2/  "SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THIS CHAPTER, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES."  61 STAT. 156, 29 U.S.C. 185(A). 

/3/

        "ARTICLE XIV

        "ADJUSTMENT AND ARBITRATION 

"A.  CONTROVERSY, DISPUTE OR DISAGREEMENT. 

"ANY AND ALL MATTERS OF CONTROVERSY, DISPUTE OR DISAGREEMENT OF ANY
KIND OR CHARACTER EXISTING BETWEEN THE PARTIES AND ARISING OUT OF OR IN
ANY WAY INVOLVING THE INTERPRETATION OR APPLICATION OF THE TERMS OF
THIS AGREEMENT . . . (WITH CERTAIN EXCEPTIONS NOT RELEVANT TO THE
INSTANT CASE) SHALL BE SETTLED AND RESOLVED BY THE PROCEDURES AND IN
THE MANNER HEREINAFTER SET FORTH. 

"B.  ADJUSTMENT PROCEDURE. 

        .          .          .          . 

"C.  ARBITRATION. 

"1.  ANY MATTER NOT SATISFACTORILY SETTLED OR RESOLVED IN PARAGRAPH
B HEREINABOVE SHALL BE SUBMITTED TO ARBITRATION FOR FINAL DETERMINATION
UPON WRITTEN DEMAND OF EITHER PARTY . . . .

        .          .          .          . 

"4.  THE ARBITRATOR OR BOARD OF ARBITRATION SHALL BE EMPOWERED TO
HEAR AND DETERMINE THE MATTER IN QUESTION AND THE DETERMINATION SHALL
BE FINAL AND BINDING UPON THE PARTIES, SUBJECT ONLY TO THEIR RIGHTS
UNDER LAW . . . ."     /4/  "D.  POWERS, LIMITATIONS AND RESERVATIONS. 

.          .          .          . 

"2.  WORK STOPPAGES.  MATTERS SUBJECT TO THE PROCEDURES OF THIS
ARTICLE SHALL BE SETTLED AND RESOLVED IN THE MANNER PROVIDED HEREIN. 
DURING THE TERM OF THIS AGREEMENT, THERE SHALL BE NO CESSATION OR
STOPPAGE OF WORK, LOCK-OUT, PICKETING OR BOYCOTTS, EXCEPT THAT THIS
LIMITATION SHALL NOT BE BINDING UPON EITHER PARTY HERETO IF THE OTHER
PARTY REFUSES TO PERFORM ANY OBLIGATION UNDER THIS ARTICLE OR REFUSES
OR FAILS TO ABIDE BY, ACCEPT OR PERFORM A DECISION OR AWARD OF AN
ARBITRATOR OR BOARD."     /5/  SEE, E.G., REPORT OF SPECIAL ATKINSON
SINCLAIR COMMITTEE, A.B.A. LABOR RELATIONS LAW SECTION-- PROCEEDINGS
226 (1963) (HEREINAFTER CITED AS A.B.A. SINCLAIR REPORT). 

/6/  SEE, E.G., UNITED STEELWORKERS OF AMERICA V. AMERICAN MFG. CO.,
363 U.S. 564 (1960); UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF
NAV. CO., 363 U.S. 574 (1960); UNITED STEELWORKERS OF AMERICA V.
ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593 (1960); TEXTILE WORKERS
UNION V. LINCOLN MILLS, 353 U.S. 448 (1957). 

/7/  SEE, E.G., BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER &
IND. R. CO., 353 U.S. 30 (1957); TEXTILE WORKERS UNION V. LINCOLN
MILLS, SUPRA; CF. GRAHAM V. BROTHERHOOD OF FIREMEN, 338 U.S. 232
(1949).  SEE ALSO UNITED STATES V. HUTCHESON, 312 U.S. 219 (1941). 

/8/  SECTION 108 PROVIDES: 

"NO RESTRAINING ORDER OR INJUNCTIVE RELIEF SHALL BE GRANTED TO ANY
COMPLAINANT WHO HAS FAILED TO COMPLY WITH ANY OBLIGATION IMPOSED BY LAW
WHICH IS INVOLVED IN THE LABOR DISPUTE IN QUESTION, OR WHO HAS FAILED
TO MAKE EVERY REASONABLE EFFORT TO SETTLE SUCH DISPUTE EITHER BY
NEGOTIATION OR WITH THE AID OF ANY AVAILABLE GOVERNMENTAL MACHINERY OF
MEDIATION OR VOLUNTARY ARBITRATION." 

SEE GENERALLY BROTHERHOOD OF RAILROAD TRAINMEN V. TOLEDO, PEORIA &
W.R. CO., 321 U.S. 50 (1944). 

/9/  UNITED STEELWORKERS OF AMERICA V. AMERICAN MFG. CO., SUPRA;
UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF NAV. CO., SUPRA;
UNITED STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP., SUPRA. 

/10/  SHORTLY AFTER SINCLAIR WAS DECIDED, AN EROSIVE PROCESS BEGAN
TO WEAKEN ITS UNDERPINNINGS.  VARIOUS AUTHORITIES SUGGESTED METHODS OF
MITIGATING THE ABSOLUTE RIGOR OF THE SINCLAIR RULE.  FOR EXAMPLE, THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD THAT SINCLAIR DOES NOT
PREVENT A FEDERAL DISTRICT COURT FROM ENFORCING AN ARBITRATOR'S ORDER
DIRECTING A UNION TO TERMINATE WORK STOPPAGES IN VIOLATION OF A NO
STRIKE CLAUSE.  NEW ORLEANS STEAMSHIP ASSN. V. GENERAL LONGSHORE
WORKERS, 389 F.2D 369, CERT. DENIED, 393 U.S. 828 (1968); SEE PACIFIC
MARITIME ASSN. V. INTERNATIONAL LONGSHOREMEN, 304 F.SUPP.  1315
(D.C.N.D. CAL. 1969).  SEE GENERALLY KEENE, THE SUPREME COURT, SECTION
301 AND NO-STRIKE CLAUSES:  FROM LINCOLN MILLS TO AVCO AND BEYOND, 15
VILL.L.REV.  32 (1969). 

/11/  SECTION 301(A) SUITS REQUIRE NEITHER THE EXISTENCE OF
DIVERSITY OF CITIZENSHIP NOR A MINIMUM JURISDICTIONAL AMOUNT IN
CONTROVERSY.  ALL SEC. 301(A) SUITS MAY BE REMOVED PURSUANT TO 28
U.S.C. 1441. 

/12/  THE VIEW THAT STATE COURT JURISDICTION WOULD NOT BE DISTURBED
BY SEC. 301(A) WAS PERHAPS MOST CLEARLY ARTICULATED BY SENATOR
FERGUSON, A SPOKESMAN FOR THAT PROVISION, IN A SENATE DEBATE IN 1946: 

"MR. FERGUSON.  MR. PRESIDENT, THERE IS NOTHING WHATEVER IN THE NOW
BEING-CONSIDERED AMENDMENT WHICH TAKES AWAY FROM THE STATE COURTS ALL
THE PRESENT RIGHTS OF THE STATE COURTS TO ADJUDICATE THE RIGHTS BETWEEN
PARTIES IN RELATION TO LABOR AGREEMENTS.  THE AMENDMENT MERELY SAYS
THAT THE FEDERAL COURTS SHALL HAVE JURISDICTION.  IT DOES NOT ATTEMPT
TO TAKE AWAY THE JURISDICTION OF THE STATE COURTS, AND THE MERE FACT
THAT THE SENATOR AND I DISAGREE DOES NOT CHANGE THE EFFECT OF THE
AMENDMENT. 

"MR. MURRAY.  BUT IT AUTHORIZES THE EMPLOYERS TO BRING SUIT IN THE
FEDERAL COURTS, IF THEY SO DESIRE. 

"MR. FERGUSON.  THAT IS CORRECT.  THAT IS ALL IT DOES.  IT TAKES
AWAY NO JURISDICTION OF THE STATE COURTS."  92 CONG.REC.  5708. 

/13/  THE LEGISLATIVE HISTORY OF THE FEDERAL QUESTION REMOVAL
PROVISION IS MEAGER, BUT IT HAS BEEN SUGGESTED THAT ITS PURPOSE WAS THE
SAME AS ORIGINAL FEDERAL QUESTION JURISDICTION, ENACTED AT THE SAME
TIME IN THE JUDICIARY ACT OF 1875, 18 STAT. 470, NAMELY, TO PROTECT
FEDERAL RIGHTS, SEE H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 727-733 (1953), AND TO PROVIDE A FORUM THAT COULD MORE
ACCURATELY INTERPRET FEDERAL LAW, SEE MISHKIN, THE FEDERAL "QUESTION"
IN THE DISTRICT COURTS, 53 COL.L.REV.  157, 159 (1953).  113
U.PA.L.REV.  1096, 1098 AND N. 17 (1965). 

/14/  SEE, E.G., BARTOSIC, INJUNCTIONS AND SECTION 301:  THE
PATCHWORK OF AVCO AND PHILADELPHIA MARINE ON THE FABRIC OF NATIONAL
LABOR POLICY, 69 COL.L.REV.  980 (1969); DUNAU, THREE PROBLEMS IN LABOR
ARBITRATION, 55 VA.L.REV.  427 (1969). 

/15/  IT IS TRUE THAT ABOUT ONE-HALF OF THE STATES HAVE ENACTED SO
CALLED "LITTLE NORRIS-LAGUARDIA ACTS" THAT PLACE VARIOUS RESTRICTIONS
UPON THE GRANTING OF INJUNCTIONS BY STATE COURTS IN LABOR DISPUTES. 
HOWEVER, BECAUSE MANY STATES DO NOT BAR INJUNCTIVE RELIEF FOR
VIOLATIONS OF COLLECTIVE-BARGAINING AGREEMENTS, IN ONLY ABOUT 14
JURISDICTIONS IS THERE A SIGNIFICANT NORRIS-LAGUARDIA-TYPE PROHIBITION
AGAINST EQUITABLE REMEDIES FOR BREACH OF NO-STRIKE OBLIGATIONS.  SEE
BARTOSIC, SUPRA, N. 14, AT 1001-1006; KEENE, SUPRA, N. 10, AT 49 AND
NN. 79, 80. 

/16/  WE HELD IN TEAMSTERS LOCAL 174 V. LUCAS FLOUR CO., SUPRA,
THAT, EVEN IN THE ABSENCE OF AN EXPRESS NO-STRIKE CLAUSE IN THE
COLLECTIVE-BARGAINING CONTRACT, AN AGREEMENT THAT CERTAIN DISPUTES
"WILL BE EXCLUSIVELY COVERED BY COMPULSORY TERMINAL ARBITRATION" (369
U.S.,AT 106) GIVES RISE TO AN IMPLIED PROMISE BY THE UNION NOT TO
STRIKE DURING THE TERM OF THE CONTRACT IN RESPONSE TO THESE ARBITRABLE
DISPUTES.  ID., AT 104-106.  IN THE PRESENT CASE, THERE WAS AN EXPRESS
NO-STRIKE CLAUSE IN THE UNION-MANAGEMENT CONTRACT.  SEE N. 4, SUPRA. 

/17/  AS THE NEUTRAL MEMBERS OF THE A.B.A. COMMITTEE ON THE PROBLEMS
RAISED BY SINCLAIR NOTED IN THEIR REPORT: 

"UNDER EXISTING LAWS, EMPLOYERS MAY MAINTAIN AN ACTION FOR DAMAGES
RESULTING FROM A STRIKE IN BREACH OF CONTRACT AND MAY DISCIPLINE THE
EMPLOYEES INVOLVED.  IN MANY CASES, HOWEVER, NEITHER OF THESE
ALTERNATIVES WILL BE FEASIBLE.  DISCHARGE OF THE STRIKERS IS OFTEN
INEXPEDIENT BECAUSE OF A LACK OF QUALIFIED REPLACEMENTS OR BECAUSE OF
THE ADVERSE EFFECT ON RELATIONSHIPS WITHIN THE PLANT.  THE DAMAGE
REMEDY MAY ALSO BE UNSATISFACTORY BECAUSE THE EMPLOYER'S LOSSES ARE
OFTEN HARD TO CALCULATE AND BECAUSE THE EMPLOYER MAY HESITATE TO
EXACERBATE RELATIONS WITH THE UNION BY BRINGING A DAMAGE ACTION. 
HENCE, INJUNCTIVE RELIEF WILL OFTEN BY THE ONLY EFFECTIVE MEANS BY
WHICH TO REMEDY THE BREACH OF THE NO-STRIKE PLEDGE AND THUS EFFECTUATE
FEDERAL LABOR POLICY."  A.B.A. SINCLAIR REPORT 242. 

/18/  SCHOLARLY CRITICISM OF SINCLAIR HAS BEEN SHARP, AND IT APPEARS
TO BE ALMOST UNIVERSALLY RECOGNIZED THAT SINCLAIR, PARTICULARLY AFTER
AVCO, HAS PRODUCED AN UNTENABLE SITUATION.  THE COMMENTATORS ARE
DIVIDED, HOWEVER, WITH RESPECT TO PROPOSED SOLUTIONS, SOME FAVORING
RECONSIDERATION OF SINCLAIR, OTHERS SUGGESTING EXTENSION OF SINCLAIR TO
THE STATES, AND STILL OTHERS RECOMMENDING THAT ANY ACTION IN THIS AREA
BE LEFT TO CONGRESS.  SEE GENERALLY AARON, STRIKES IN BREACH OF
COLLECTIVE AGREEMENTS:  SOME UNANSWERED QUESTIONS, 63 COL.L.REV.  1027
(1963); AARON, THE LABOR INJUNCTION REAPPRAISED, 10 U.C.L.A.L.REV.  292
(1963); BARTOSIC, SUPRA, N. 14; DUNAU, SUPRA, N. 14; KEENE,SUPRA, N.
10; KIERNAN, AVAILABILITY OF INJUNCTIONS AGAINST BREACHES OF NO-STRIKE
AGREEMENTS IN LABOR CONTRACTS, 32 ALBANY L.REV.  303 (1968);
WELLINGTON, THE NO-STRIKE CLAUSE AND THE LABOR INJUNCTION:  TIME FOR A
RE-EXAMINATION, 30 U.PITT.L.REV.  293 (1968); WELLINGTON & ALBERT,
STATUTORY INTERPRETATION AND THE POLITICAL PROCESS:  A COMMENT ON
SINCLAIR V. ATKINSON, 72 YALE L.J. 1547 (1963). 

/19/  SEE GENERALLY F. FRANKFURTER & N. GREENE, THE LABOR INJUNCTION
(1930). 

/20/  NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, AS AMENDED, 29
U.S.C. 151 ET SEQ. 

/21/  WELLINGTON & ALBERT, SUPRA, N. 18, AT 1557. 

/22/  AS WELL STATED BY THE NEUTRAL MEMBERS OF THE A.B.A. SINCLAIR
COMMITTEE: 

"ANY PROPOSAL WHICH WOULD SUBJECT UNIONS TO INJUNCTIVE RELIEF MUST
TAKE ACCOUNT OF THE NORRIS-LAGUARDIA ACT AND THE OPPOSITION EXPRESSED
IN THAT ACT TO THE ISSUING OF INJUNCTIONS IN LABOR DISPUTES. 
NEVERTHELESS, THE REASONS BEHIND THE NORRIS-LAGUARDIA ACT SEEM SCARCELY
APPLICABLE TO THE SITUATION . . . (IN WHICH A STRIKE IN VIOLATION OF A
COLLECTIVE-BARGAINING AGREEMENT IS ENJOINED).  THE ACT WAS PASSED
PRIMARILY BECAUSE OF WIDESPREAD DISSATISFACTION WITH THE TENDENCY OF
JUDGES TO ENJOIN CONCERTED ACTIVITIES IN ACCORDANCE WITH 'DOCTRINES OF
TORT LAW WHICH MADE THE LAWFULNESS OF A STRIKE DEPEND UPON JUDICIAL
VIEWS OF SOCIAL AND ECONOMIC POLICY.'  WHERE AN INJUNCTION IS USED
AGAINST A STRIKE IN BREACH OF CONTRACT, THE UNION IS NOT SUBJECTED IN
THIS FASHION TO JUDICIALLY CREATED LIMITATIONS ON ITS FREEDOM OF ACTION
BUT IS SIMPLY COMPELLED TO COMPLY WITH LIMITATIONS TO WHICH IT HAS
PREVIOUSLY AGREED.  MOREOVER, WHERE THE UNDERLYING DISPUTE IS
ARBITRABLE, THE UNION IS NOT DEPRIVED OF ANY PRACTICABLE MEANS OF
PRESSING ITS CLAIM BUT IS ONLY REQUIRED TO SUBMIT THE DISPUTE TO THE
IMPARTIAL TRIBUNAL THAT IT HAS AGREED TO ESTABLISH FOR THIS PURPOSE." 
A.B.A. SINCLAIR REPORT 242. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE STEWART, CONCURRING. 

WHEN SINCLAIR REFINING CO. V. ATKINSON, 370 U.S. 195, WAS DECIDED IN
1962, I SUBSCRIBED TO THE OPINION OF THE COURT.  BEFORE SIX YEARS HAD
PASSED I HAD REACHED THE CONCLUSION THAT THE SINCLAIR HOLDING SHOULD BE
RECONSIDERED, AND SAID SO IN AVCO CORP. V. AERO LODGE 735, 390 U.S.
557, 562 (CONCURRING OPINION).  TODAY I JOIN THE COURT IN CONCLUDING
"THAT SINCLAIR WAS ERRONEOUSLY DECIDED AND THAT SUBSEQUENT EVENTS HAVE
UNDERMINED ITS CONTINUING VALIDITY . . . ." 

IN THESE CIRCUMSTANCES THE TEMPTATION IS STRONG TO EMBARK UPON A
LENGTHY PERSONAL APOLOGIA.  BUT SINCE MR. JUSTICE BRENNAN HAS SO
CLEARLY STATED MY PRESENT VIEWS IN HIS OPINION FOR THE COURT TODAY, I
SIMPLY JOIN IN THAT OPINION AND IN THE COURT'S JUDGMENT.  AN APHORISM
OF MR. JUSTICE FRANKFURTER PROVIDES ME REFUGE:  "WISDOM TOO OFTEN NEVER
COMES, AND SO ONE OUGHT NOT TO REJECT IT MERELY BECAUSE IT COMES
LATE."  HENSLEE V. UNION PLANTERS BANK, 335 U.S. 595, 600 (DISSENTING
OPINION). 

MR. JUSTICE BLACK, DISSENTING. 

CONGRESS IN 1932 ENACTED THE NORRIS-LAGUARDIA ACT, SEC. 4 OF WHICH,
29 U.S.C. 104,WITH EXCEPTIONS NOT HERE RELEVANT, SPECIFICALLY
PROHIBITED FEDERAL COURTS IN THE BROADEST AND MOST COMPREHENSIVE
LANGUAGE FROM ISSUING ANY INJUNCTIONS, TEMPORARY OR PERMANENT, AGAINST
PARTICIPATION IN A LABOR DISPUTE.  SUBSEQUENTLY, IN 1947, CONGRESS GAVE
JURISDICTION TO THE FEDERAL COURTS IN "(SUITS FOR VIOLATION OF
CONTRACTS BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION."  ALTHOUGH THIS
SUBSECTION, SEC. 301(A) OF THE TAFT-HARTLEY ACT, 29 U.S.C. 185(A),
EXPLICITLY WAIVES THE DIVERSITY AND AMOUNT-IN-CONTROVERSY REQUIREMENTS
FOR FEDERAL JURISDICTION, IT SAYS NOTHING AT ALL ABOUT GRANTING
INJUNCTIONS.  EIGHT YEARS AGO THIS COURT CONSIDERED THE RELATION OF
THESE TWO STATUTES:  AFTER FULL BRIEFING AND ARGUMENT, RELYING ON THE
LANGUAGE AND HISTORY OF THE ACTS, THE COURT DECIDED THAT CONGRESS DID
NOT WISH THIS LATER STATUTE TO IMPAIR IN ANY WAY NORRIS-LAGUARDIA'S
EXPLICIT PROHIBITION AGAINST INJUNCTIONS IN LABOR DISPUTES.  SINCLAIR
REFINING CO. V. ATKINSON, 370 U.S. 195 (1962). 

ALTHOUGH CONGRESS HAS BEEN URGED TO OVERRULE OUR HOLDING IN
SINCLAIR, IT HAS STEADFASTLY REFUSED TO DO SO.  NOTHING IN THE LANGUAGE
OR HISTORY OF THE TWO ACTS HAS CHANGED.  NOTHING AT ALL HAS CHANGED, IN
FACT, EXCEPT THE MEMBERSHIP OF THE COURT AND THE PERSONAL VIEWS OF ONE
JUSTICE.  I REMAIN OF THE OPINION THAT SINCLAIR WAS CORRECTLY DECIDED,
AND, MOREOVER, THAT THE PROHIBITION OF THE NORRIS-LAGUARDIA ACT IS
CLOSE TO THE HEART OF THE ENTIRE FEDERAL SYSTEM OF LABOR REGULATION. 
IN MY VIEW SINCLAIR SHOULD CONTROL THE DISPOSITION OF THIS CASE. 

EVEN IF THE MAJORITY WERE CORRECT, HOWEVER, IN SAYING THAT SINCLAIR
MISINTERPRETED THE TAFT-HARTLEY AND NORRIS-LAGUARDIA ACTS, I SHOULD BE
COMPELLED TO DISSENT.  I BELIEVE THAT BOTH THE MAKING AND THE CHANGING
OF LAWS WHICH AFFECT THE SUBSTANTIAL RIGHTS OF THE PEOPLE ARE PRIMARILY
FOR CONGRESS, NOT THIS COURT.  MOST ESPECIALLY IS THIS SO WHEN THE LAWS
INVOLVED ARE THE FOCUS OF STRONGLY HELD VIEWS OF POWERFUL BUT
ANTAGONISTIC POLITICAL AND ECONOMIC INTERESTS.  THE COURT'S FUNCTION IN
THE APPLICATION AND INTERPRETATION OF SUCH LAWS MUST BE CAREFULLY
LIMITED TO AVOID ENCROACHING ON THE POWER OF CONGRESS TO DETERMINE
POLICIES AND MAKE LAWS TO CARRY THEM OUT. 

WHEN THE COURT IMPLIES THAT THE DOCTRINE CALLED STARE DECISIS RESTS
SOLELY ON "IMPORTANT POLICY CONSIDERATIONS . . . IN FAVOR OF CONTINUITY
AND PREDICTABILITY IN THE LAW," IT DOES NOT TELL THE WHOLE STORY.  SUCH
CONSIDERATIONS ARE PRESENT AND, IN A FIELD AS DELICATE AS LABOR
RELATIONS, EXTREMELY IMPORTANT.  JUSTICE BRANDEIS SAID, DISSENTING IN
BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393, 406 (1932): 

"STARE DECISIS IS USUALLY THE WISE POLICY, BECAUSE IN MOST MATTERS
IT IS MORE IMPORTANT THAT THE APPLICABLE RULE OF LAW BE SETTLED THAN
THAT IT BE SETTLED RIGHT."  IN THE ORDINARY CASE, CONSIDERATIONS OF
CERTAINTY AND THE EQUAL TREATMENT OF SIMILARLY SITUATED LITIGANTS WILL
PROVIDE A STRONG INCENTIVE TO ADHERE TO PRECEDENT. 

WHEN THIS COURT IS INTERPRETING A STATUTE, HOWEVER, AN ADDITIONAL
FACTOR MUST BE WEIGHED IN THE BALANCE.  IT IS THE DEFERENCE THAT THIS
COURT OWES TO THE PRIMARY RESPONSIBILITY OF THE LEGISLATURE IN THE
MAKING OF LAWS.  OF COURSE, WHEN THIS COURT FIRST INTERPETS A STATUTE,
THEN THE STATUTE BECOMES WHAT THIS COURT HAS SAID IT IS.  SEE GULF, C.
& S.F.R. CO. V. MOSER, 275 U.S. 133, 136 (1927).  SUCH AN INITIAL
INTERPRETATION IS PROPER, AND UNAVOIDABLE, IN ANY SYSTEM IN WHICH
COURTS HAVE THE TASK OF APPLYING GENERAL STATUTES IN A MULTITUDE OF
SITUATIONS.  B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 112-115
(1921).  THE COURT UNDERTAKES THE TASK OF INTERPRETATION, HOWEVER, NOT
BECAUSE THE COURT HAS ANY SPECIAL ABILITY TO FATHOM THE INTENT OF
CONGRESS, BUT RATHER BECAUSE INTERPRETATION IS UNAVOIDABLE IN THE
DECISION OF THE CASE BEFORE IT.  WHEN THE LAW HAS BEEN SETTLED BY AN
EARLIER CASE THEN ANY SUBSEQUENT "REINTERPRETATION" OF THE STATUTE IS
GRATUITOUS AND NEITHER MORE NOR LESS THAN AN AMENDMENT:  IT IS NO
DIFFERENT IN EFFECT FROM A JUDICIAL ALTERATION OF LANGUAGE THAT
CONGRESS ITSELF PLACED IN THE STATUTE. 

ALTERING THE IMPORTANT PROVISIONS OF A STATUTE IS A LEGISLATIVE
FUNCTION.  AND THE CONSTITUTION STATES SIMPLY AND UNEQUIVOCALLY:  "ALL
LEGISLATIVE POWERS HEREIN GRANTED SHALL BE VESTED IN A CONGRESS OF THE
UNITED STATES . . . ."  U.S. CONST. ART. I. IT IS THE CONGRESS, NOT
THIS COURT, THAT RESPONDS TO THE PRESSURES OF POLITICAL GROUPS,
PRESSURES ENTIRELY PROPER IN A FREE SOCIETY.  IT IS CONGRESS, NOT THIS
COURT, THAT HAS THE CAPACITY TO INVESTIGATE THE DIVERGENT
CONSIDERATIONS INVOLVED IN THE MANAGEMENT OF A COMPLEX NATIONAL LABOR
POLICY.  AND IT IS CONGRESS, NOT THIS COURT, THAT IS ELECTED BY THE
PEOPLE.  THIS COURT SHOULD, THEREFORE, INTERJECT ITSELF AS LITTLE AS
POSSIBLE INTO THE LAW-MAKING AND LAW-CHANGING PROCESS.  HAVING GIVEN
OUR VIEW ON THE MEANING OF A STATUTE, OUR TASK IS CONCLUDED, ABSENT
EXTRAORDINARY CIRCUMSTANCES.  WHEN THE COURT CHANGES ITS MIND YEARS
LATER, SIMPLY BECAUSE THE JUDGES HAVE CHANGED, IN MY JUDGMENT, IT TAKES
UPON ITSELF THE FUNCTION OF THE LEGISLATURE. 

THE LEGISLATIVE EFFECT OF THE COURT'S REVERSAL IS ESPECIALLY CLEAR
HERE.  IN SINCLAIR THE COURT INVITED CONGRESS TO ACT IF IT SHOULD BE
DISPLEASED WITH THE JUDICIAL INTERPRETATION OF THE STATUTE.  WE SAID,
370 U.S.,AT 214-215: 

"STRONG ARGUMENTS ARE MADE TO US THAT IT IS HIGHLY DESIRABLE THAT
THE NORRIS-LAGUARDIA ACT BE CHANGED IN THE PUBLIC INTEREST.  IF THAT IS
SO, CONGRESS ITSELF MIGHT SEE FIT TO CHANGE THAT LAW AND REPEAL THE
ANTI-INJUNCTION PROVISIONS OF THE ACT INSOFAR AS SUITS FOR VIOLATION OF
COLLECTIVE AGREEMENTS ARE CONCERNED, AS THE HOUSE BILL UNDER
CONSIDERATION ORIGINALLY PROVIDED.  IT MIGHT, ON THE OTHER HAND, DECIDE
THAT IF INJUNCTIONS ARE NECESSARY, THE WHOLE IDEA OF ENFORCEMENT OF
THESE AGREEMENTS BY PRIVATE SUITS SHOULD BE DISCARDED IN FAVOR OF
ENFORCEMENT THROUGH THE ADMINISTRATIVE MACHINERY OF THE LABOR BOARD, AS
SENATOR TAFT PROVIDED IN HIS SENATE BILL.  OR IT MIGHT DECIDE THAT
NEITHER OF THESE METHODS IS ENTIRELY SATISFACTORY AND TURN INSTEAD TO A
COMPLETELY NEW APPROACH.  THE QUESTION OF WHAT CHANGE, IF ANY, SHOULD
BE MADE IN THE EXISTING LAW IS ONE OF LEGISLATIVE POLICY PROPERLY
WITHIN THE EXCLUSIVE DOMAIN OF CONGRESS-- IT IS A QUESTION FOR
LAWMAKERS, NOT LAW INTERPRETERS."  COMMENTATORS ON OUR HOLDING FOUND
THIS INVITATION TO LEGISLATIVE ACTION CLEAR, AND JUDICIAL SELF
RESTRAINT PROPER.  SEE DUNAU, THREE PROBLEMS IN LABOR ARBITRATION, 55
VA.L.REV.  427, 464-465 (1969); WELLINGTON & ALBERT, STATUTORY
INTERPRETATION AND THE POLITICAL PROCESS:  A COMMENT ON SINCLAIR V.
ATKINSON, 72 YALE L.J. 1547, 1565-1566 (1963).  BILLS WERE INTRODUCED
IN CONGRESS SEEKING TO EFFECT A LEGISLATIVE CHANGE.  S. 2132, 89TH
CONG., 1ST SESS. (1965); H.R. 9059, 89TH CONG., 1ST SESS. (1965). 
CONGRESS, HOWEVER, DID NOT ACT, THUS INDICATING AT LEAST A WILLINGNESS
TO LEAVE THE LAW AS SINCLAIR HAD CONSTRUED IT.  IT SEEMS TO ME HIGHLY
INAPPROPRIATE FOR THIS COURT NOW, EIGHT YEARS LATER, IN EFFECT TO ENACT
THE AMENDMENT THAT CONGRESS HAS REFUSED TO ADOPT.  TOOLSON V. NEW YORK
YANKEES, INC., 346 U.S. 356 (1953); SEE ALSO UNITED STATES V.
INTERNATIONAL BOXING CLUB OF NEW YORK, INC., 348 U.S. 236, 242-244
(1955). 

I DO NOT BELIEVE THAT THE PRINCIPLE OF STARE DECISIS FORECLOSES ALL
RECONSIDERATIONS OF EARLIER DECISIONS.  IN THE AREA OF CONSTITUTIONAL
LAW, FOR EXAMPLE, WHERE THE ONLY ALTERNATIVE TO ACTION BY THIS COURT IS
THE LABORIOUS PROCESS OF CONSTITUTIONAL AMENDMENT AND WHERE THE
ULTIMATE RESPONSIBILITY RESTS WITH THIS COURT, I BELIEVE
RECONSIDERATION IS ALWAYS PROPER.  SEE JAMES V. UNITED STATES, 366 U.S.
213, 233-234 (1961) (SEPARATE OPINION OF BLACK, J.).  /1/  EVEN ON
STATUTORY QUESTIONS THE APPEARANCE OF NEW FACTS OR CHANGES IN
CIRCUMSTANCES MIGHT WARRANT RE-EXAMINATION OF PAST DECISIONS IN
EXCEPTIONAL CASES UNDER EXCEPTIONAL CIRCUMSTANCES.  IN THE PRESENT
SITUATION THERE ARE NO SUCH CIRCUMSTANCES.  CONGRESS HAS TAKEN NO
ACTION INCONSISTENT WITH OUR DECISION IN SINCLAIR.  GIROUARD V. UNITED
STATES, 328 U.S. 61, 70 (1946).  AND, ALTHOUGH BILLS HAVE BEEN
INTRODUCED, CF. HELVERING V. HALLOCK, 309 U.S. 106, 119-120 (1940),
CONGRESS HAS DECLINED THE INVITATION TO ACT. 

THE ONLY "SUBSEQUENT EVENT" TO WHICH THE COURT CAN POINT IS OUR
DECISION IN AVCO CORP. V. AERO LODGE 735, 390 U.S. 557 (1968).  THE
COURT MUST RECOGNIZE THAT THE HOLDING OF AVCO IS IN NO WAY INCONSISTENT
WITH SINCLAIR.  AS WE SAID IN AVCO, SUPRA, AT 561:  "THE NATURE OF THE
RELIEF AVAILABLE AFTER JURISDICTION ATTACHES IS, OF COURSE, DIFFERENT
FROM THE QUESTION WHETHER THERE IS JURISDICTION TO ADJUDICATE THE
CONTROVERSY."  THE COURT CONTENDS, HOWEVER, THAT THE RESULT OF THE TWO
CASES TAKEN TOGETHER IS THE "ANOMALOUS SITUATION" THAT NO-STRIKE
CLAUSES BECOME UNENFORCEABLE IN STATE COURTS, AND THIS IS INCONSISTENT
WITH "AN IMPORTANT GOAL OF OUR NATIONAL LABOR POLICY." 

AVCO DOES MAKE ANY EFFORT TO ENFORCE A NO-STRIKE CLAUSE IN A STATE
COURT REMOVABLE TO A FEDERAL COURT, BUT IT DOES NOT FOLLOW THAT THE NO
STRIKE CLAUSE IS UNENFORCEABLE.  DAMAGES MAY BE AWARDED; THE UNION MAY
BE FORCED TO ARBITRATE.  AND THE EMPLOYER MAY ENGAGE IN SELF-HELP.  THE
COURT WOULD HAVE IT THAT THESE TECHNIQUES ARE LESS EFFECTIVE THAN AN
INJUNCTION.  THAT IS DOUBTLESS TRUE.  BUT THE HARSHNESS AND
EFFECTIVENESS OF INJUNCTIVE RELIEF-- AND OPPOSITION TO "GOVERNMENT BY
INJUNCTION"-- WERE THE PRECISE REASONS FOR THE CONGRESSIONAL
PROHIBITION IN THE NORRIS-LAGUARDIA ACT.  THE EFFECT OF THE AVCO
DECISION IS, INDEED, TO HIGHLIGHT THE LIMITED REMEDIAL POWERS OF
FEDERAL COURTS.  BUT IF THE CONGRESS IS UNHAPPY WITH THESE POWERS AS
THIS COURT DEFINED THEM, THEN THE CONGRESS MAY ACT; THIS COURT SHOULD
NOT.  THE MEMBERS OF THE MAJORITY HAVE SIMPLY DECIDED THAT THEY ARE
MORE SENSITIVE TO THE "REALIZATION OF AN IMPORTANT GOAL OF OUR NATIONAL
LABOR POLICY" THAN THE CONGRESS OR THEIR PREDECESSORS ON THIS COURT. 

THE CORRECT INTERPRETATION OF THE TAFT-HARTLEY ACT, AND EVEN THE
GOALS OF "OUR NATIONAL LABOR POLICY," ARE LESS IMPORTANT THAN THE
PROPER DIVISION OF FUNCTIONS BETWEEN THE BRANCHES OF OUR FEDERAL
GOVERNMENT.  THE COURT WOULD DO WELL TO REMEMBER THE WORDS OF JOHN
ADAMS, WRITTEN IN THE DECLARATION OF RIGHTS IN THE CONSTITUTION OF THE
COMMONWEALTH OF MASSACHUSETTS: 

"THE JUDICIAL (DEPARTMENT) SHALL NEVER EXERCISE THE LEGISLATIVE AND
EXECUTIVE POWERS, OR EITHER OF THEM:  TO THE END IT MAY BE A GOVERNMENT
OF LAWS AND NOT OF MEN." 

I DISSENT. 

/1/  OTHER MEMBERS OF THE COURT HAVE DRAWN THE DISTINCTION BETWEEN
CONSTITUTIONAL AND STATUTORY MATTERS, AND INDICATED THAT THE CORRECTION
OF THIS COURT'S ERRORS IN STATUTORY INTERPRETATION IS BEST LEFT TO
CONGRESS.  FOR EXAMPLE, MR. JUSTICE DOUGLAS NOTED IN DISSENT IN SWIFT &
CO. V. WICKHAM, 382 U.S. 111, 133-134 (1965): 

"AN ERROR IN INTERPRETING A FEDERAL STATUTE MAY BE EASILY REMEDIED. 
IF THIS COURT HAS FAILED TO PERCEIVE THE INTENTION OF CONGRESS, OR HAS
INTERPRETED A STATUTE IN SUCH A MANNER AS TO THWART THE LEGISLATIVE
PURPOSE, CONGRESS MAY CHANGE IT.  THE LESSONS OF EXPERIENCE ARE NOT
LEARNED BY JUDGES ALONE." 

SEE ALSO UNITED GAS IMPROVEMENT CO. V. CONTINENTAL OIL CO., 381 U.S.
392, 406 (1965) (DOUGLAS, J., DISSENTING).  APPARENTLY, HOWEVER, SOME
MEMBERS OF THE COURT ARE WILLING TO GIVE GREATER WEIGHT TO STARE
DECISIS IN CONSTITUTIONAL THAN IN STATUTORY MATTERS.  SEE, E.G., OROZCO
V. TEXAS, 394 U.S. 324, 327-328 (1969) (HARLAN, J., CONCURRING). 

MR. JUSTICE WHITE DISSENTS FOR THE REASONS STATED IN THE MAJORITY
OPINION IN SINCLAIR REFINING CO. V. ATKINSON, 370 U.S. 195 (1962). 

JOSEPH M. MCLAUGHLIN ARGUED THE CAUSE AND FILED BRIEFS FOR
PETITIONER. 

KENNETH M. SCHWARTZ ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE LAURENCE D. STEINSAPIR AND ROBERT M. DOHRMANN. 

BRIEFS OF AMICI CURIAE WERE FILED BY WILLIAM H. WILLCOX AND LAWRENCE
M. COHEN FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES; BY GEORGE R.
FEARON FOR ASSOCIATED INDUSTRIES OF NEW YORK STATE, INC.; BY JOHN E.
BRANCH AND JAMES PULM SWANN, JR., FOR GENERAL ELECTRIC CO.; BY CARL M.
GOULD AND STANLEY E. TOBIN FOR THE PLUMBING-HEATING & PIPING EMPLOYERS
COUNCIL OF SOUTHERN CALIFORNIA, INC.; BY HAROLD I. ELBERT FOR PEABODY
COAL CO.; AND BY J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS. 
..END :

















MAXWELL V. BISHOP, 398 U.S. 262 


       MAXWELL V. BISHOP, PENITENTIARY SUPERINTENDENT. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 13.  ARGUED MARCH 4, 1969-- REARGUED MAY 4, 1970--

           DECIDED JUNE 1, 1970. 


PETITIONER CHALLENGED HIS JURY CONVICTION FOR RAPE AND THE SENTENCE
OF DEATH IMPOSED PURSUANT TO ARKANSAS LAW ON THE GROUNDS THAT (1) THE
JURY HAD DETERMINED THE ISSUES OF GUILT AND SENTENCING IN A SINGLE
PROCEEDING, THUS PRECLUDING HIM FROM PRESENTING EVIDENCE ON THE PENALTY
ISSUE WITHOUT SUBJECTING HIMSELF TO SELF-INCRIMINATION ON THE GUILT
ISSUE, AND (2) THE JURY HAD BEEN GIVEN NO STANDARDS TO GUID IT IN
SENTENCING.  THE DISTRICT COURT DENIED A WRIT OF HABEAS CORPUS AND THE
COURT OF APPEALS AFFIRMED.  SEVERAL PROSPECTIVE JURORS HAD BEEN REMOVED
FOR CAUSE FROM THE PANEL "BECAUSE THEY VOICED GENERAL OBJECTIONS TO THE
DEATH PENALTY OR EXPRESSED CONSCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST
ITS INFLICTION," WHICH THIS COURT HELD IMPERMISSIBLE IN WITHERSPOON V.
ILLINOIS, 391 U.S. 510, DECIDED AFTER PETITIONER'S TRIAL.  HELD:
ALTHOUGH THE WITHERSPOON ISSUE WAS NOT RAISED BELOW, THE CASE IS
REMANDED TO THE DISTRICT COURT FOR CONSIDERATION OF THAT ISSUE. 
BOULDEN V. HOLMAN, 394 U.S. 478. 

398 F.2D 138, VACATED AND REMANDED. 

PER CURIAM. 

IN 1962 THE PETITIONER WAS FOUND GUILTY OF RAPE BY AN ARKANSAS JURY
WITHOUT A VERDICT OF LIFE IMPRISONMENT, AND THE TRIAL COURT IMPOSED A
SENTENCE OF DEATH.  /1/  THE ARKANSAS SUPREME COURT AFFIRMED THE
JUDGMENT OF CONVICTION.  236 ARK. 694, 370 S.W.2D 113.  THE PETITIONER
THEN SOUGHT A WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS, CLAIMING, AMONG OTHER THINGS,
THAT HIS CONVICTION AND PUNISHMENT WERE UNCONSTITUTIONAL IN THAT (1)
THE JURY HAD DETERMINED THE TWO ISSUES OF GUILT OR INNOCENCE AND OF A
LIFE OR DEATH SENTENCE IN A SINGLE PROCEEDING, THEREBY PRECLUDING HIM
FROM PRESENTING EVIDENCE PERTINENT TO THE QUESTION OF PENALTY WITHOUT
SUBJECTING HIMSELF TO SELF-INCRIMINATION ON THE ISSUE OF GUILT; AND (2)
THE JURY HAD BEEN GIVEN NO STANDARDS OR DIRECTIONS OF ANY KIND TO GUIDE
IT IN DECIDING WHETHER TO IMPOSE A SENTENCE OF LIFE IMPRISONMENT OR
DEATH.  THE DISTRICT COURT DENIED THE WRIT, 257 F.SUPP.  710, AND THE
COURT OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED, 398 F.2D 138.  WE
GRANTED CERTIORARI LIMITED TO THE TWO QUESTIONS NOTED ABOVE.  393 U.S.
997. 

THE PETITIONER'S TRIAL TOOK PLACE LONG BEFORE THIS COURT'S DECISION
IN WITHERSPOON V. ILLINOIS, 391 U.S. 510.  THE TRIAL TRANSCRIPT MAKES
EVIDENT THAT SEVERAL PROSPECTIVE JURORS WERE REMOVED FROM THE PANEL
UPON GROUNDS HELD IMPERMISSIBLE IN THE WITHERSPOON CASE.  ONE
PROSPECTIVE JUROR, FOR EXAMPLE, WAS SUCCESSFULLY CHALLENGED FOR CAUSE
SOLELY ON THE BASIS OF THE FOLLOWING EXCHANGE: 

     "Q.  IF YOU WERE CONVINCED BEYOND A REASONABLE DOUBT AT THE
END

  OF THIS TRIAL THAT THE DEFENDANT WAS GUILTY AND THAT HIS ACTIONS

  HAD BEEN SO SHOCKING THAT THEY WOULD MERIT THE DEATH PENALTY DO

  YOU HAVE ANY CONSCIENTIOUS SCRUPLES ABOUT CAPITAL PUNISHMENT THAT

MIGHT PREVENT YOU FROM RETURNING SUCH A VERDICT? 

     "A.  I THINK I DO." 

ANOTHER VENIREMAN WAS REMOVED FROM THE JURY PANEL ON THE BASIS OF
THE FOLLOWING QUESTION AND ANSWER: 

     "Q.  DO YOU ENTERTAIN ANY CONSCIENTIOUS SCRUPLES ABOUT
IMPOSING THE DEATH PENALTY? 

     "A.  YES, I AM AFRAID I DO."  STILL ANOTHER MEMBER OF THE
PANEL WAS DISMISSED AFTER THE FOLLOWING COLLOQUY: 

     "Q.  MR. ADAMS, DO YOU HAVE ANY FEELING CONCERNING CAPITAL

  PUNISHMENT THAT WOULD PREVENT YOU OR MAKE YOU HAVE ANY FEELINGS

  ABOUT RETURNING A DEATH SENTENCE IF YOU FELT BEYOND A REASONABLE

  DOUBT THAT THE DEFENDANT WAS GUILTY AND THAT HIS CRIME WAS SO BAD

  AS TO MERIT THE DEATH SENTENCE? 

     "A.  NO, I DON'T BELIEVE IN CAPITAL PUNISHMENT."  /2/ 

AS WAS MADE CLEAR IN WITHERSPOON, "A SENTENCE OF DEATH CANNOT BE
CARRIED OUT IF THE JURY THAT IMPOSED OR RECOMMENDED IT WAS CHOSEN BY
EXCLUDING VENIREMEN FOR CAUSE SIMPLY BECAUSE THEY VOICED GENERAL
OBJECTIONS TO THE DEATH PENALTY OR EXPRESSED CONSCIENTIOUS OR RELIGIOUS
SCRUPLES AGAINST ITS INFLICTION."  391 U.S.,AT 522.  WE REAFFIRMED THAT
DOCTRINE IN BOULDEN V. HOLMAN, 394 U.S. 478.  AS WE THERE OBSERVED, IT
CANNOT BE SUPPOSED THAT ONCE SUCH PEOPLE TAKE THEIR OATHS AS JURORS
THEY WILL BE UNABLE "TO FOLLOW CONSCIENTIOUSLY THE INSTRUCTIONS OF A
TRIAL JUDGE AND TO CONSIDER FAIRLY THE IMPOSITION OF THE DEATH SENTENCE
IN A PARTICULAR CASE."  394 U.S.,AT 484.  "UNLESS A VENIREMAN STATES
UNAMBIGUOUSLY THAT HE WOULD AUTOMATICALLY VOTE AGAINST THE IMPOSITION
OF CAPITAL PUNISHMENT NO MATTER WHAT THE TRIAL MIGHT REVEAL, IT SIMPLY
CANNOT BE ASSUMED THAT THAT IS HIS POSITION."  WITHERSPOON V. ILLINOIS,
SUPRA, AT 516 N. 9. 

"THE MOST THAT CAN BE DEMANDED OF A VENIREMAN IN THIS REGARD IS THAT
HE BE WILLING TO CONSIDER ALL OF THE PENALTIES PROVIDED BY STATE LAW,
AND THAT HE NOT BE IRREVOCABLY COMMITTED, BEFORE THE TRIAL HAS BEGUN,
TO VOTE AGAINST THE PENALTY OF DEATH REGARDLESS OF THE FACTS AND
CIRCUMSTANCES THAT MIGHT EMERGE IN THE COURSE OF THE PROCEEDINGS.  IF
THE VOIR DIRE TESTIMONY IN A GIVEN CASE INDICATES THAT VENIREMEN WERE
EXCLUDED ON ANY BROADER BASIS THAN THIS, THE DEATH SENTENCE CANNOT BE
CARRIED OUT . . . ."  ID., AT 522 N. 21. 

IT APPEARS, THEREFORE, THAT THE SENTENCE OF DEATH IMPOSED UPON THE
PETITIONER CANNOT CONSTITUTIONALLY STAND UNDER WITHERSPOON V.
ILLINOIS.  AS IN BOULDEN V. HOLMAN,HOWEVER, WE DO NOT FINALLY DECIDE
THAT QUESTION HERE.  THE SITUATION IN THIS CASE CLOSELY RESEMBLES THAT
PRESENTED IN BOULDEN, IN THAT THE PETITIONER'S TRIAL TOOK PLACE BEFORE
THE WITHERSPOON DECISION, AND THE WITHERSPOON ISSUE WAS NOT RAISED IN
THE DISTRICT COURT, IN THE COURT OF APPEALS, OR IN THE PETITION FOR
CERTIORARI FILED IN THIS COURT.  THE REASONS THAT PERSUADED US TO
REMAND THE BOULDEN CASE TO THE DISTRICT COURT APPLY WITH EQUAL FORCE
HERE:  "A FURTHER HEARING DIRECTED TO THE ISSUE MIGHT CONCEIVABLY
MODIFY IN SOME FASHION THE CONCLUSION SO STRONGLY SUGGESTED BY THE
RECORD NOW BEFORE US.  FURTHER, IT IS NOT CLEAR WHETHER THE PETITIONER
HAS EXHAUSTED HIS STATE REMEDIES WITH RESPECT TO THIS ISSUE.  FINALLY,
IN THE EVENT IT TURNS OUT, AS NOW APPEARS, THAT RELIEF FROM THIS DEATH
SENTENCE MUST BE ORDERED, A LOCAL FEDERAL COURT WILL BE FAR BETTER
EQUIPPED THAN ARE WE TO FRAME AN APPROPRIATE DECREE WITH DUE REGARD TO
AVAILABLE (ARKANSAS) PROCEDURES."  394 U.S.,AT 484.  /3/ 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND
THE CASE IS REMANDED TO THE DISTRICT COURT, WHERE THE ISSUE THAT HAS
BELATEDLY BEEN BROUGHT TO OUR ATTENTION MAY BE FULLY CONSIDERED.  IN
THE ACTION WE TAKE TODAY, WE EXPRESS NO VIEW WHATEVER WITH RESPECT TO
THE TWO QUESTIONS ORIGINALLY SPECIFIED IN OUR GRANT OF CERTIORARI.  /4/

              IT IS SO ORDERED. 

/1/  AT THE TIME OF THE PETITIONER'S TRIAL ARKANSAS LAW PROVIDED
ONLY TWO ALTERNATIVE SENTENCES UPON CONVICTION FOR RAPE: 

"PENALTY FOR RAPE.-- ANY PERSON CONVICTED OF THE CRIME OF RAPE SHALL
SUFFER THE PUNISHMENT OF DEATH (OR LIFE IMPRISONMENT)."  ARK. STAT.
ANN. SEC. 41-3403 (1964 REPL.  VOL.). 

"CAPITAL CASES-- VERDICT OF LIFE IMPRISONMENT.-- THE JURY SHALL HAVE
THE RIGHT IN ALL CASES WHERE THE PUNISHMENT IS NOW DEATH BY LAW, TO
RENDER A VERDICT OF LIFE IMPRISONMENT IN THE STATE PENITENTIARY AT HARD
LABOR."  ARK. STAT. ANN. SEC. 43-2153 (1964 REPL.  VOL.). 

/2/  THE RECORD SHOWS POSSIBLE VIOLATIONS OF THE WITHERSPOON RULE IN
THE REMOVAL FROM THE VENIRE OF AT LEAST FOUR OTHER PROSPECTIVE JURORS. 

/3/  DURING ORAL ARGUMENT OF THIS CASE REFERENCE WAS MADE TO THE
FOLLOWING ARKANSAS STATUTE: 

"REDUCTION OF VERDICT.-- THE COURT SHALL HAVE POWER, IN ALL CASES OF
CONVICTION, TO REDUCE THE EXTENT OR DURATION OF THE PUNISHMENT ASSESSED
BY A JURY, IF, IN THE OPINION OF THE COURT, THE CONVICTION IS PROPER,
AND THE PUNISHMENT ASSESSED IS GREATER THAN, UNDER THE CIRCUMSTANCES OF
THE CASE, OUGHT TO BE INFLICTED, SO THAT THE PUNISHMENT BE NOT, IN ANY
CASE, REDUCED BELOW THE LIMIT PRESCRIBED BY LAW IN SUCH CASES."  ARK.
STAT. ANN. SEC. 43-2310 (1964 REPL.  VOL.). 

NO EFFORT WAS MADE BY THE PETITIONER TO SEEK RELIEF IN THE STATE
COURTS UNDER THIS STATUTE.  THERE IS NOTHING IN THE RECORD OR OTHERWISE
REPORTED TO US TO INDICATE THAT THIS REMEDY IS NOT NOW AVAILABLE. 

/4/  WE HAVE TODAY GRANTED CERTIORARI IN NO. 486, MISC., MCGAUTHA V.
CALIFORNIA, AND NO. 709, MISC., CRAMPTON V. OHIO, IN WHICH THESE TWO
QUESTIONS WILL BE CONSIDERED AT AN EARLY DATE IN THE 1970 TERM. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

SINCE I AM STILL OF THE VIEW THAT WITHERSPOON V. ILLINOIS, 391 U.S.
510 (1968), WAS ERRONEOUSLY DECIDED, I DISSENT FROM THE OPINION OF THE
COURT IN THIS CASE. 

ANTHONY G. AMSTERDAM ARGUED THE CAUSE FOR PETITIONER ON THE ORIGINAL
ARGUMENT AND ON THE REARGUMENT.  WITH HIM ON THE BRIEFS WERE JACK
GREENBERG, JAMES M. NABRIT III, NORMAN C. AMAKER, MICHAEL MELTSNER,
ELIZABETH DUBOIS, AND GEORGE HOWARD, JR. 

DON LANGSTON, DEPUTY ATTORNEY GENERAL OF ARKANSAS, ARGUED THE CAUSE
FOR RESPONDENT ON THE ORIGINAL ARGUMENT AND ON THE REARGUMENT.  WITH
HIM ON THE BRIEF WAS JOE PURCELL, ATTORNEY GENERAL. 

ALBERT W. HARRIS, J., ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE
FOR THE STATE OF CALIFORNIA AS AMICUS CURIAE ON THE ORIGINAL ARGUMENT
AND ON THE REARGUMENT.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND ROBERT R. GRANUCCI AND GEORGE R. NOCK, DEPUTY
ATTORNEYS GENERAL.  BRIEFS OF AMICI CURIAE WERE FILED BY ELMER GERTZ
AND WILLARD J. LASSERS FOR THE AMERICAN CIVIL LIBERTIES UNION, ILLINOIS
DIVISION, ET AL.; BY SOL RUBIN AND SAMUEL B. WATERMAN FOR THE NATIONAL
COUNCIL ON CRIME AND DELINQUENCY; BY LEO PFEFFER, MARVIN BRAITERMAN,
MORRIS DERSHOWITZ, WILL MASLOW, JOSEPH B. ROBISON, AND GEORGE SOLL FOR
THE SYNAGOGUE COUNCIL OF AMERICA ET AL.; BY MESSRS.  GERTZ AND LASSERS
AND ALEX ELSON FOR THE AMERICAN FRIENDS SERVICE COMMITTEE ET AL.; BY
WARREN E. MAGEE AND JUDAH BEST FOR THE AMERICAN PSYCHIATRIC
ASSOCIATION; BY BERL I. BERNHARD, WILLIAM T. COLEMAN, JR., SAMUEL DASH,
JOHN W. DOUGLAS, STEVEN DUKE, WILLIAM T. GOSSETT, RITA HAUSER, BURKE
MARSHALL, STEVEN R. RIVKIN, WHITNEY NORTH SEYMOUR, AND CYRUS R. VANCE,
PRO SESE, FOR BERL I. BERNHARD ET AL.; BY MESSRS.  AMSTERDAM,
GREENBERG, AND MELTSNER, MELVYN ZARR, AND CHARLES S. RALSTON FOR ROBERT
PAGE ANDERSON ET AL., AND BY HILBERT P. ZARKY AND RICHARD M. MOSK FOR
CLINTON DUFFY. 
..END :
















UNITED STATES V. ARMOUR & CO., 398 U.S. 268 


       UNITED STATES V. ARMOUS & CO. ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

  NORTHERN DISTRICT OF ILLINOIS. 

        NO. 103.  ARGUED MARCH 5, 1970-- DECIDED JUNE 1, 1970. 


VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS WITH
INSTRUCTIONS TO DISMISS THE CASE AS MOOT. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I DISSENT FROM DISMISSAL OF THE CASE AS MOOT. 

IN AN HISTORIC CONSENT DECREE THE GIANT MEATPACKERS WERE SEPARATED
IN A COMPLETE AND CONTINUING WAY FROM THE GENERAL FOOD BUSINESS, THE
DISTRICT COURT RETAINING IN THE CUSTOMARY WAY THE POWER TO GRANT
ADDITIONAL RELIEF, AT THE FOOT OF THE DECREE.  SOME YEARS LATER MOTIONS
TO VACATE THE DECREE WERE MADE, AND A JUDGMENT OVERRULING THEM WAS
AFFIRMED BY THIS COURT.  SWIFT & CO. V. UNITED STATES, 276 U.S. 311. 
LATER ARMOUR AND OTHER MEATPACKET DEFENDANTS, CLAIMING THAT CONDITIONS
IN THE FOOD BUSINESS HAD CHANGED, SOUGHT MODIFICATIONS OF THE DECREE TO
RELIEVE THEM FROM THE STRUCTURAL BARS AGAINST ENGAGING IN VARIOUS
ASPECTS OF THE GENERAL FOOD AND RETAIL MEAT BUSINESS.  THAT EFFORT WAS
ALSO UNSUCCESSFUL.  UNITED STATES V. SWIFT & CO., 286 U.S. 106.  LATER,
ANOTHER ATTEMPT WAS MADE TO OBTAIN SIMILAR RELIEF AND IT TOO FAILED. 
UNITED STATES V. SWIFT & CO., 189 F.SUPP.  885, AFF'D, 367 U.S. 909. 

ARMOUR IS NOW THE SECOND LARGEST MEATPACKER IN THE NATION.  GENERAL
HOST IS ENGAGED IN THE FOOD PRODUCTS BUSINESS; IT OPERATES SOME 380
GROCERY STORES, AND SOME LODGES, RESTAURANTS, AND COFFEE SHOPS.  IT IS,
IN OTHER WORDS, ENGAGED IN LINES OF BUSINESS FROM WHICH ARMOUR, AS A
PARTY TO THE DECREE,WOULD BE BARRED, WHETHER IT DID SO DIRECTLY OR
THROUGH STOCK OWNERSHIP. 

AGAINST THE RESISTANCE OF ARMOUR, GENERAL HOST, WHICH HELD ABOUT 16
1/2% OF ARMOUR'S OUTSTANDING STOCK, UNDERTOOK TO ACQUIRE AT LEAST 51%
OF IT.  THE UNITED STATES ASKED THE DISTRICT COURT HAVING JURISDICTION
OVER THE MEATPACKERS CONSENT DECREE TO MAKE GENERAL HOST A PARTY UNDER
SEC. 5 OF THE SHERMAN ACT, 26 STAT. 210, AS AMENDED, 15 U.S.C. 5.  THE
REFUSAL OF THE DISTRICT COURT TO DO SO WAS, I THINK, ERROR.  AFTER THE
DISTRICT COURT'S RULING, GENERAL HOST ACQUIRED 57% OF ARMOUR'S STOCK. 
AS A RESULT, A SPECIES OF THE MONOPOLY AT WHICH THE CONSENT DECREE WAS
AIMED WAS ACHIEVED. 

GENERAL HOST, IT APPEARS, HAS NOW TRANSFERRED, PURSUANT TO AUTHORITY
OF THE INTERSTATE COMMERCE COMMISSION, ITS ARMOUR STOCK TO GREYHOUND
CORPORATION.  IT IS ALLEGED THAT GREYHOUND, LIKE GENERAL HOST, IS
ENGAGED IN FOOD BUSINESS PROHIBITED TO ARMOUR UNDER THE DECREE.  THE
UNITED STATES CONTENDS THAT GREYHOUND'S CONTROL OF ARMOUR IS AS
INCONSISTENT WITH THE DECREE AS GENERAL HOST'S CONTROL.  GREYHOUND, THE
UNITED STATES STATES, OWNS OTHER FOOD INTERESTS THAT ARMOUR COULD NOT
OWN BY VIRTUE OF THE DECREE. 

NEITHER GENERAL HOST NOR GREYHOUND COULD, OF COURSE, BE HELD IN
CONTEMPT UNDER THE DECREE AS IT IS WRITTEN, FOR THEY WERE NOT PARTIES. 
BUT THEY PRESUMABLY KNEW OF THE DECREE AND SEEMINGLY FASHIONED A
PROCEDURE TO CIRCUMVENT IT.  THE DISTRICT COURT HAD AMPLE POWER UNDER
SEC. 5 OF THE SHERMAN ACT, TO RESTRAIN GENERAL HOST FROM FRUSTRATING
THE DECREE, FOR SEC. 5 PROVIDES: 

     "WHENEVER IT SHALL APPEAR TO THE COURT BEFORE WHICH ANY

  PROCEEDING UNDER SECTION 4 OF THIS TITLE MAY BE PENDING, THAT THE

  ENDS OF JUSTICE REQUIRE THAT OTHER PARTIES SHOULD BE BROUGHT

 BEFORE THE COURT, THE COURT MAY CAUSE THEM TO BE SUMMONED,

  WHETHER THEY RESIDE IN THE DISTRICT IN WHICH THE COURT IS HELD OR

  NOT; AND SUBPOENAS TO THAT END MAY BE SERVED IN ANY DISTRICT BY

  THE MARSHAL THEREOF." 

GENERAL HOST AND GREYHOUND WOULD HAVE, OF COURSE, THE OPPORTUNITY TO
LITIGATE THE QUESTION WHETHER THEIR ACTS DO INTERFERE WITH THE DECREE
BEFORE ANY CITATION FOR CONTEMPT. 

MOREOVER, RULE 25(C) OF THE FEDERAL RULES OF CIVIL PROCEDURE
PROVIDES: 

     "IN CASE OF ANY TRANSFER OF INTEREST, THE ACTION MAY BE

  CONTINUED BY OR AGAINST THE ORIGINAL PARTY, UNLESS THE COURT UPON

  MOTION DIRECTS THE PERSON TO WHOM THE INTEREST IS TRANSFERRED TO

  BE SUBSTITUTED IN THE ACTION OR JOINED WITH THE ORIGINAL PARTY. 

  SERVICE OF THE MOTION SHALL BE MADE AS PROVIDED IN SUBDIVISION

  (A) OF THIS RULE." 

UNLESS THE DISTRICT COURT PROCEEDS AGAINST GENERAL HOST AND
GREYHOUND TO SUPPLEMENT THE DECREE, THERE MAY BE NO REMEDY.  WITHOUT
THE HEARING I URGE, THEY CANNOT BE PUNISHED FOR CONTEMPT.  ARMOUR,
THOUGH A PARTY TO THE DECREE, WAS THE VICTIM OF ITS VIOLATION, NOT A
PARTICIPANT. 

UNDER THE DECREE ARMOUR COULD NOT ACQUIRE EITHER GENERAL HOST OR
GREYHOUND.  YET THE COMBINATION OF MEATPACKERS WITH FOOD PRODUCTS
ARGUABLY IS REALIZED WHETHER ARMOUR ACQUIRED THEM, OR THEY, ARMOUR. 
THE MISCONCEPTION OF THE THRUST OF THE DECREE BY THE DISTRICT COURT IS
EVIDENT IN ITS STATEMENT THAT "GENERAL HOST IS NOT A LARGE MEAT PACKET
EXTENDING ITS MONOPOLISTIC GRASP TOWARD THE REST OF THE FOOD INDUSTRY
AND THROUGH THE USE OF ITS ALREADY ESTABLISHED DISTRIBUTING FACILITIES,
SUPERIOR FINANCIAL RESOURCES AND OTHER MEANS MAKING A DOMINANT POSITION
FELT, RESULTING IN A RESTRAINT OF TRADE BY SQUEEZING OUT PRESENT OR
POTENTIAL COMPETITORS.  RATHER, GENERAL HOST, A WHOLLY SEPARATE
CORPORATE ENTITY, HAS ACQUIRED SOME SHARES OF ARMOUR STOCK AND EVINCED
AN INTEREST IN ACQUIRING ADDITIONAL SHARES."  THE EVIL IS IN AN
INTERFERENCE WITH THE DECREE THROUGH THE COMBINATION OF ARMOUR'S
MEATPACKING POWER WITH THE FOOD LINES OF GENERAL HOST-- THE PRECISE
TYPE OF EVIL AT WHICH THE DECREE WAS AIMED.  AND THAT EVIL IS
APPARENTLY PRESENT IN GREYHOUND'S ACQUISITION. 

MR. JUSTICE CARDOZO SPEAKING FOR THE COURT IN THE SECOND SWIFT CASE
SAID: 

     "WHETHER THE DEFENDANTS WOULD RESUME (THEIR PREDATORY

  PRACTICES) IF THEY WERE TO DEAL IN GROCERIES AGAIN, WE DO NOT

  KNOW.  THEY WOULD CERTAINLY HAVE THE TEMPTATION TO RESUME IT.

  THEIR LOW OVERHEAD AND THEIR GIGANTIC SIZE, EVEN WHEN THEY ARE

VIEWED AS SEPARATE UNITS, WOULD STILL PUT THEM IN A POSITION TO

  STARVE OUT WEAKER RIVALS.  MERE SIZE, ACCORDING TO THE HOLDING OF

  THIS COURT, IS NOT AN OFFENSE AGAINST THE SHERMAN ACT UNLESS

  MAGNIFIED TO THE POINT AT WHICH IT AMOUNTS TO A MONOPOLY . . . ,

  BUT SIZE CARRIES WITH IT AN OPPORTUNITY FORABUSE THAT IS NOT TO

  BE IGNORED WHEN THE OPPORTUNITY IS PROVED TO HAVE BEEN UTILIZED

  IN THE PAST.  THE ORIGINAL DECREE AT ALL EVENTS WAS FRAMED UPON

  THAT THEORY.  IT WAS FRAMED UPON THE THEORY THAT EVEN AFTER THE

COMBINATION AMONG THE PACKERS HAD BEEN BROKEN UP AND THE MONOPOLY

  DISSOLVED, THE INDIVIDUAL UNITS WOULD BE SO HUGE THAT THE

  CAPACITY TO ENGAGE IN OTHER FORMS OF BUSINESS AS ADJUNCTS TO THE

  SALE OF MEATS SHOULD BE TAKEN FROM THEM ALTOGETHER.  IT DID NOT

  SAY THAT THE PRIVILEGE TO DEAL IN GROCERIES SHOULD BE WITHDRAWN

  FOR A LIMITED TIME, OR UNTIL THE COMBINATION IN RESPECT OF MEATS

  HAD BEEN EFFECTUALLY BROKEN UP.  IT SAID THAT THE PRIVILEGE

  SHOULD BE RENOUNCED FOREVER, AND THIS WHETHER THE UNITS WITHIN

  THE COMBINATION WERE ACTING COLLECTIVELY OR SINGLY.  THE

  COMBINATION WAS TO BE DISINTEGRATED, BUT RELIEF WAS NOT TO STOP

 WITH THAT.  TO CURB THE AGGRESSIONS OF THE HUGE UNITS THAT WOULD

  REMAIN, THERE WAS TO BE A CHECK UPON THEIR POWER, EVEN THOUGH

  ACTING INDEPENDENTLY, TO WAGE A WAR OF EXTERMINATION AGAINST

  DEALERS WEAKER THAN THEMSELVES . . . . GROCERIES AND OTHER

  ENUMERATED ARTICLES THEY WERE NOT TO SELL AT ALL, EITHER BY

  WHOLESALE OR BY RETAIL.  EVEN THE THINGS THAT THEY WERE FREE TO

  SELL, MEATS AND MEAT PRODUCTS, THEY WERE NOT TO SELL BY RETAIL." 

  UNITED STATES V. SWIFT & CO., 286 U.S. 106, 116-117. 

MR. JUSTICE CARDOZO ADDED THAT WITH THE ADDITION OF GROCERIES TO
MEATS, "(THE OPPORTUNITY WILL BE THEIRS TO RENEW THE WAR OF
EXTERMINATION THAT THEY WAGED IN YEARS GONE BY."  ID., AT 118. 

THE SAME SENTIMENT HAD PREVIOUSLY BEEN STATED IN THE SENATE BY
SENATOR (NOW MR. JUSTICE) BLACK IN OPPOSING THE MOVE OF THE MEATPACKING
INDUSTRY TO RELAX THE DECREE.  HIS FEAR WAS OPENING THE DOORS TO
CONTROL OF GROCERIES AND OTHER FOOD BY THE MEATPACKERS:  /1/ 

"IF THIS COURT DECREE SHOULD BE CANCELED AND SET ASIDE BY
GOVERNMENTAL CONSENT, A GIANT FOOD TRUST WOULD NOT ONLY BE PERMITTED
BUT ENCOURAGED TO REAR ITS STUPENDOUS AND OMINOUS FORM OVER NORTH,
SOUTH, EAST, AND WEST ALIKE.  SUCH GOVERNMENTAL ACTION WILL TACITLY
INVITE A MONOPOLY OF SUCH SIZE AND POWER THAT WITH ONE STROKE OF A PEN
IN SOME LARGE FINANCIAL CENTER OF THE NATION THIS TRUST COULD LIFT THE
PRICE OF BREAD AND MEAT FROM MAINE TO CALIFORNIA." 

LATER HE SPOKE OF A FINANCIAL PROSPECTUS BASED UPON AN EXPECTED
MODIFICATION OF THE DECREE:  /2/ 

"'WITH THE EXPECTED MODIFICATION OF THE CONSENT DECREE, THE BIG

  MEAT PACKERS WILL ENTER THE RETAIL FIELD ANEW, WITH NATION-WIDE

  CHAINS OF GROCERY AND OTHER FOOD SHOPS, WHICH WILL OVERSHADOW ALL

  THE EXISTING ENTERPRISES OF THAT TYPE IN THE UNITED STATES.' 

        .          .          .         . 

     "'AS THE NUCLEUS OF SUCH CHAINS OF MEAT AND GROCERY STORES AS

  THEY NOW CONTEMPLATE THE PACKERS MAY TAKE OVER MOST OF THE HUGE

  RETAIL FOOD STORE CHAINS ALREADY EXISTING, SUCH AS THE BIG

  GROCERY CHAINS, WHICH NOW OPERATE MEAT DEPARTMENTS IN 20,000 TO

  30,000 SUCH SHOPS IN VARIOUS PARTS OF THE COUNTRY. 

      "'IT WILL PAY EVERY INVESTOR TO SCRUTINIZE CLOSELY THE

  INCREASING PROFIT POTENTIALITIES OF THE PACKING ORGANIZATIONS.'" 

THE SPECTRE OF MEATPACKING AND FOOD PRODUCTS MERGING IS AS OMINOUS
TODAY AS IT WAS THEN.  IT SHOULD NOT MATTER HOW THE PREDATORY SCHEME IS
EFFECTUATED, WHETHER ONE ACQUIRES THE OTHER OR VICE VERSA.  ON THE
FACTS HERE TENDERED, A CASE HAS BEEN MADE OUT FOR MAKING GENERAL HOST
AND GREYHOUND PARTIES AND HAVING A HEARING TO DETERMINE WHETHER THEY OR
EITHER OF THEM HAS INTERFERED WITH THE DECREE.  THE QUESTION IS NOT
WHETHER, AS A DE NOVO MATTER, THE COMBINATION OF EITHER WITH ARMOUR
CONSTITUTES A VIOLATION OF THE ACT.  THE ISSUE WHETHER GENERAL HOST OR
GREYHOUND HAS INTERFERED WITH THE DECREE IS A NARROWER ONE.  IF THEY
AND ARMOUR HAD DESIGNED THIS SCHEME TO AVOID THE DECREE, INTERFERENCE
WOULD BE RATHER OBVIOUS.  WHY DOES IT MATTER THAT GENERAL HOST OR
GREYHOUND, ACTING WITHOUT THE CONNIVANCE OF ARMOUR, ACHIEVES THE SAME
RESULT UNILATERALLY?  A FEDERAL COURT HAS INHERENT POWER TO PREVENT
OBSTRUCTION OF ITS AUTHORITY BY ACTS OF "FORCE, GUILE, OR OTHERWISE,"
WHETHER OR NOT THE PERSON CHARGED WAS OR WAS NOT A PARTY DEFENDANT. 
SEE MISSISSIPPI VALLEY BARGE LINE CO. V. UNITED STATES, 273 F.SUPP.  1,
AFF'D SUB NOM. OSBOURNE V. MISSISSIPPI VALLEY BARGE LINE CO., 389 U.S.
579.  FOR IT IS AN HISTORIC EQUITY PRINCIPLE THAT EVEN A NONPARTY IS
BOUND "NOT TO INTERFERE WITH, AND NOT TO OBSTRUCT, THE COURSE OF
JUSTICE," OR TREAT A COURT ORDER AS "UNWORTHY OF NOTICE."  SEE SEAWARD
V. PATERSON, (1897) 1 CH. 545, 554.  CF. RULE 65(D), FEDERAL RULES OF
CIVIL PROCEDURE. 

I WOULD NOT DISMISS THE CASE AS MOOT.  RATHER, I WOULD REMAND IT TO
THE DISTRICT COURT FOR A FULL HEARING ON THE ISSUE OF INTERFERENCE. 

/1/  72 CONG.REC.  1239. 

/2/  72 CONG.REC.  9336. 

JAMES VAN R. SPRINGER ARGUED THE CAUSE FOR THE UNITED STATES.  ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, DEPUTY ASSISTANT ATTORNEY
GENERAL COMEGYS, LAWRENCE G. WALLACE, HOWARD E. SHAPIRO, AND SEYMOUR H.
DUSSMAN. 

HERBERT A. BERGSON ARGUED THE CAUSE FOR APPELLEE GENERAL HOST CORP.
WITH HIM ON THE BRIEF WERE HOWARD ADLER, JR., JAMES H. KELLEY, CAROL
GARFIEL FREEMAN, AND EDWIN E. MCAMIS. 
..END :


















WYMAN V. ROTHSTEIN, 398 U.S. 275 


       WYMAN, COMMISSIONER OF SOCIAL SERVICES OF NEW YORK, ET AL.

           V. ROTHSTEIN ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK. 

        NO. 896.  ARGUED APRIL 27-28, 1970-- DECIDED JUNE 1, 1970. 


APPELLEES BROUGHT THIS SUIT CHALLENGING ON EQUAL PROTECTION AND
STATUTORY GROUNDS THE DISPARITY BETWEEN PAYMENTS UNDER THE STATE
WELFARE LAW MADE TO RECIPIENTS IN NEW YORK CITY AND THOSE MADE TO
RECIPIENTS IN CERTAIN SUBURBAN COUNTIES.  THE DISTRICT COURT ISSUED A
PRELIMINARY INJUNCTION, HAVING FOUND THE DISPARITY VIOLATIVE OF EQUAL
PROTECTION.  HELD:  IN THE LIGHT OF THE SUBSEQUENTLY DECIDED CASE OF
ROSADO V. WYMAN, 397 U.S. 397, THE DISTRICT COURT SHOULD HAVE THE
OPPORTUNITY TO PASS ON THE PROPRIETY OF GRANTING INTERIM RELIEF ON THE
BASIS OF APPELLEES' STATUTORY CLAIMS OR, IF THE QUESTION IS REACHED,
CONTINUING THE PRESENT INJUNCTION IN LIGHT OF THE COURT'S DECISION IN
DANDRIDGE V. WILLIAMS, 397 U.S. 471. 

303 F.SUPP.  339, VACATED AND REMANDED. 

PER CURIAM. 

APPELLEES COMMENCED THIS ACTION IN THE FEDERAL DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK CHALLENGING ON EQUAL PROTECTION AND
STATUTORY GROUNDS SEC. 131-A OF THE NEW YORK SOCIAL SERVICES LAW WHICH
PROVIDES FOR PAYMENTS TO WELFARE RECIPIENTS IN NASSAU, SUFFOLK, AND
CERTAIN OTHER NEW YORK STATE COUNTIES IN LESSER AMOUNTS THAN PROVIDED
FOR RESIDENTS OF NEW YORK CITY SHOULD THE WELFARE ADMINISTRATOR
DETERMINE THAT ADEQUATE CAUSE EXISTS FOR THE DIFFERENTIAL.  A THREE
JUDGE COURT WAS CONVENED AND IT FOUND THAT APPELLEES'  LIKELIHOOD OF
SUCCESS ON THEIR CONSTITUTIONAL CLAIM WARRANTED THE ISSUANCE OF A
PRELIMINARY INJUNCTION AGAINST WHAT IT FOUND TO BE THE PAYMENT OF
WELFARE IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE COURT FOUND IT UNNECESSARY TO CONSIDER APPELLEES'
STATUTORY CLAIMS.  WE NOTED PROBABLE JURISDICTION.  397 U.S. 903. 

SUBSEQUENT TO THE DECISION OF THE DISTRICT COURT THIS COURT RENDERED
ITS DECISION IN ROSADO V. WYMAN, 397 U.S. 397, WHEREIN WE HELD THAT A
FEDERAL COURT CALLED UPON TO PASS UPON THE CONSTITUTIONAL VALIDITY OF A
STATE'S WELFARE PROGRAM SHOULD, BEFORE REACHING THE CONSTITUTIONAL
ISSUES, CONSIDER FIRST ANY PENDENT STATUTORY CLAIMS THAT ARE PRESENTED,
NOTWITHSTANDING THE PENDENCY OF NEGOTIATIONS BETWEEN THE STATE AND THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. 

IN LIGHT OF THE FOREGOING, THE JUDGMENT OF THE DISTRICT COURT IS
VACATED AND THE CASE IS REMANDED TO THAT COURT FOR AN OPPORTUNITY TO
PASS ON THE PROPRIETY OF GRANTING INTERIM RELIEF IN ACCORDANCE WITH
CONVENTIONAL EQUITABLE PRINCIPLES ON THE BASIS OF APPELLEES' STATUTORY
CLAIMS, OR, IF THE QUESTION IS REACHED, CONTINUING THE PRESENT
INJUNCTION IN LIGHT OF THIS COURT'S DECISION IN DANDRIDGE V. WILLIAMS,
397 U.S. 471. 

              IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

WHEN THIS ACTION WAS COMMENCED BY APPELLEES, THE SECRETARY OF
HEALTH, EDUCATION, AND WELFARE WAS IN THE PROCESS OF DETERMINING IF THE
NEW YORK WELFARE PROVISIONS UNDER ATTACK IN THIS CASE ARE CONSISTENT
WITH THE FEDERAL STANDARD REQUIRING UNIFORM STATEWIDE APPLICATION OF
STATE WELFARE PLANS.  SEE SOCIAL SECURITY ACT SEC. 402, AS AMENDED, 81
STAT. 877 ET SEQ., 42 U.S.C. 602 (1964 ED., SUPP. IV); 45 CFR 233.20. 
ALTHOUGH THE FEDERAL AGENCY HAS NOT YET MADE A FINAL DECISION, IT
APPEARS FROM THE BRIEF SUBMITTED BY THE UNITED STATES AS AMICUS CURIAE
THAT HEW HAS MADE A PRELIMINARY DETERMINATION THAT THE NEW YORK
PROVISIONS DO NOT CONFORM TO THE SOCIAL SECURITY ACT'S REQUIREMENTS. 
ACCORDINGLY, THE STATUTORY CLAIM WHICH THIS COURT TODAY REMANDS TO THE
DISTRICT COURT FOR ITS CONSIDERATION INVOLVES A LIVE CONTROVERSY
BETWEEN NEW YORK AND THE FEDERAL GOVERNMENT, AND, AS I SAID IN MY
DISSENTING OPINION IN ROSADO V. WYMAN, 397 U.S. 397, 430 (1970), IT IS
MY BELIEF THAT SUCH CONTROVERSIES SHOULD BE RESOLVED IN PROCEEDINGS
BETWEEN THE TWO GOVERNMENTS INVOLVED, AS PROVIDED IN THE SOCIAL
SECURITY ACT.  SEE, E.G., 42 U.S.C. 602, 1316 (1964 ED., SUPP. IV). 
FOR THIS REASON, I WOULD VACATE THE JUDGMENT OF THE DISTRICT COURT AND
REMAND WITH DIRECTIONS THAT THE COMPLAINT BE DISMISSED. 

PHILIP WEINBERG ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSCHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND AMY JUVILER,
ASSISTANT ATTORNEY GENERAL. 

EDWARD V. SPARER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE CARL RACHLIN AND NORMAN LICHTENSTEIN. 

PETER L. STRAUSS ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD AND ASSISTANT ATTORNEY GENERAL RUCKELSHAUS.  MORRIS H.
SCHNEIDER FILED A BRIEF FOR THE CENTER ON SOCIAL WELFARE POLICY AND LAW
ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :



















BLOSS V. DYKEMA, 398 U.S. 278 


       BLOSS ET AL. V. DYKEMA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           MICHIGAN. 

        NO. 1347.  DECIDED JUNE 1, 1970. 


CERTIORARI GRANTED; JUDGMENT OF THE MICHIGAN COURT OF APPEALS, 17
MICH.APP.  318, 169 N.W.2D 367, REVERSED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE MICHIGAN COURT OF APPEALS IS REVERSED.  REDRUP V. NEW YORK, 386
U.S. 767. 

THE CHIEF JUSTICE AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
CERTIORARI SHOULD BE DENIED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE MICHIGAN COURT OF APPEALS UPON
PRINCIPLES HERETOFORE OFTEN EXPRESSED BY ME.  SEE MY OPINIONS IN ROTH
V. UNITED STATES, 354 U.S. 476, 496 (1957); JACOBELLIS V. OHIO, 378
U.S. 184, 203 (1964); MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 455
(1966).  FROM THE STANDPOINT OF WHAT I REGARD AS THE PERMISSIBLE
EXERCISE OF STATE POWER IN THIS FIELD, THE MATERIALS IN THIS CASE FALL
FAR SHORT OF THE "BORDERLINE" MOVIE INVOLVED IN CAIN V. KENTUCKY
(REVERSED SUMMARILY), 397 U.S. 319 (1970), SEE MY DISSENT IN THAT CASE,
AND I AM AT A LOSS TO UNDERSTAND HOW THESE MATERIALS CAN BE DEEMED TO
QUALIFY FOR REDRUP TREATMENT WHEN ONLY A SHORT TIME AGO THE COURT
DECLINED TO ACCORD THAT TREATMENT TO THE MATERIALS INVOLVED IN SPICER
V. NEW YORK, CERT. DENIED, 397 U.S. 1042. 
..END :












FOLLETTE V. COMACHO, 398 U.S. 279 


       FOLLETTE, WARDEN V. COMACHO. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT. 

        NO. 1394.  DECIDED JUNE 1, 1970. 


CERTIORARI GRANTED; 421 F.2D 822, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION OF THE RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
CONSIDERATION IN LIGHT OF MCMANN V. RICHARDSON, 397 U.S. 759. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :








HIGGINS V. UNITED STATES, 398 U.S. 279 


       HIGGINS V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SECOND CIRCUIT. 

        NO. 1183, MISC.  DECIDED JUNE 1, 1970. 


CERTIORARI GRANTED; 416 F.2D 406, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER CONSIDERATION IN
LIGHT OF GUTKNECHT V. UNITED STATES, 396 U.S. 295. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :








LEITCHFIELD MANUFACTURING CO. V. UNITED STATES, 398 U.S. 280 


       LEITCHFIELD MANUFACTURING CO., INC., ET AL. V. UNITED STATES

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF KENTUCKY. 

        NO. 1426.  DECIDED JUNE 1, 1970. 


VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE IS
REMANDED TO THAT COURT FOR REDETERMINATION UPON THE BASIS OF THE RECORD
OF THE INTERSTATE COMMERCE COMMISSION PROCEEDINGS. 

MR. JUSTICE BLACK WOULD NOTE PROBABLE JURISDICTION AND SET THE CASE
FOR ARGUMENT. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE HARLAN WOULD AFFIRM. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR
DISPOSITION OF THIS CASE. 
..END :






















DICKEY V. FLORIDA, 398 U.S. 30 


       DICKEY V. FLORIDA. 

        CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA,
FIRST

           DISTRICT. 

        NO. 728.  ARGUED JANUARY 21, 1970-- DECIDED MAY 25, 1970. 


DURING A PERIOD OF OVER SEVEN YEARS WHILE PETITIONER WAS IN FEDERAL
CUSTODY AND AVAILABLE TO THE STATE OF FLORIDA, WHICH HAD ISSUED A
WARRANT FOR HIS ARREST ON A STATE CRIMINAL CHARGE, PETITIONER MADE
REPEATED BUT UNSUCCESSFUL EFFORTS TO SECURE A PROMPT TRIAL IN THE STATE
COURT.  DURING THAT PERIOD TWO WITNESSES DIED, ANOTHER POTENTIAL
DEFENSE WITNESS ALLEGEDLY BECAME UNAVAILABLE, AND POSSIBLY RELEVANT
POLICE RECORDS WERE LOST OR DESTROYED.  THEREAFTER THE STATE FILED AN
INFORMATION AGAINST PETITIONER AND, FOLLOWING DENIAL OF PETITIONER'S
MOTION TO QUASH ON THE GROUND THAT HE HAD BEEN DENIED HIS RIGHT TO A
SPEEDY TRIAL UNDER THE SIXTH AMENDMENT AS MADE APPLICABLE TO THE STATES
BY THE FOURTEENTH AMENDMENT, PETITIONER WAS CONVICTED AND THE APPELLATE
COURT AFFIRMED.  HELD:  ON THE RECORD IN THIS CASE WHERE PETITIONER WAS
AT ALL TIMES AVAILABLE TO THE STATE AND THERE WAS NO VALID EXCUSE FOR
THE PREJUDICIAL DELAY, THE JUDGMENT AGAINST PETITIONER MUST BE VACATED
BY THE TRIAL COURT.  PP. 36-38. 

215 SO.2D 772, REVERSED AND REMANDED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT IN THIS CASE TO CONSIDER THE PETITIONER'S CLAIM
THAT HE HAD BEEN DENIED HIS SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL:
HE WAS TRIED IN 1968 ON CHARGES OF ALLEGED CRIMINAL ACTS COMMITTED IN
1960. 

PRIOR TO THE COMMENCEMENT OF HIS JURY TRIAL IN 1968 FOR ARMED
ROBBERY PETITIONER, ROBERT DICKEY, MOVED TO QUASH THE INFORMATION
AGAINST HIM, ALLEGING, INTER ALIA, THAT IF HE WERE TRIED HE WOULD BE
DENIED HIS RIGHT TO A SPEEDY TRIAL, AS GUARANTEED BY SEC. 11 OF THE
DECLARATION OF RIGHTS OF THE FLORIDA CONSTITUTION /1/  AND THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.  /2/  THE MOTION WAS
DENIED.  DICKEY WAS SUBSEQUENTLY TRIED AND CONVICTED.  HE APPEALED TO
THE FLORIDA DISTRICT COURT OF APPEAL, FIRST DISTRICT, ALLEGING ERROR IN
THE TRIAL COURT'S DENIAL OF HIS MOTION TO QUASH.  THE COURT OF APPEAL
AFFIRMED THE CONVICTION IN A BRIEF ORDER.  215 SO.2D 772 (1968).  WE
GRANTED DICKEY LEAVE TO PROCEED IN FORMA PAUPERIS AND GRANTED HIS
PETITION FOR A WRIT OF CERTIORARI.  396 U.S. 816 (1969).  WE REVERSE. 

        I 

AT ABOUT 2 O'CLOCK IN THE MORNING OF JUNE 28, 1960, CLARK'S MOTOR
COURT IN QUINCY, GADSDEN COUNTY, FLORIDA, WAS ROBBED BY A LONE ARMED
ROBBER.  THE VICTIM AND ONLY EYEWITNESS WAS MRS. RALPH CLARK.  SHE
IMMEDIATELY REPORTED THE CRIME TO DEPUTY COUNTY SHERIFF MARTIN AND GAVE
A DESCRIPTION OF THE ROBBER TO HIM; THIS DESCRIPTION WAS ROUTINELY
RECORDED FOR LATER REFERENCE.  SHORTLY THEREAFTER, DICKEY WAS TAKEN
INTO CUSTODY ON FEDERAL BANK ROBBERY CHARGES AND PLACED IN THE JACKSON
COUNTY JAIL, MARIANNA, FLORIDA.  APPARENTLY THE DESCRIPTION MRS. CLARK
HAD GIVEN DEPUTY MARTIN WAS SUFFICIENTLY SIMILAR TO DICKEY THAT ON JULY
1, 1960, HE SHOWED MRS. CLARK A PICTURE OF DICKEY.  MRS. CLARK AND
DEPUTY MARTIN THEN WENT TO THE JACKSON COUNTY JAIL WHERE SHE IDENTIFIED
DICKEY AS HER ASSAILANT.  LATER THAT DAY DEPUTY MARTIN SECURED AN
ARREST WARRANT CHARGING DICKEY WITH ARMED ROBBERY.  /3/ 

FROM JULY 1, 1960, TO SEPTEMBER 2, 1960, DICKEY REMAINED IN THE
JACKSON COUNTY JAIL.  THE GADSDEN COUNTY SHERIFF'S OFFICE KNEW OF HIS
WHEREABOUTS BUT MADE NO EFFORT TO SERVE THE WARRANT OR GAIN CUSTODY FOR
THE PURPOSE OF TRIAL.  ON SEPTEMBER 2, 1960, DICKEY, HAVING BEEN
CONVICTED ON FEDERAL CHARGES, WAS REMOVED FROM FLORIDA, FIRST TO
LEAVENWORTH AND THEN ALCATRAZ.  ON THE SAME DAY, THE GADSDEN COUNTY
WARRANT WAS SENT TO THE CHIEF UNITED STATES MARSHAL, ATLANTA, GEORGIA,
AND A FORMAL DETAINER WAS LODGED AGAINST DICKEY. 

IN 1962 DICKEY FILED IN THE GADSDEN COUNTY CIRCUIT COURT A PETITION
STYLED "WRIT OF HABEAS CORPUS AD PROSEQUENDUM" NAMING THE STATE
ATTORNEY FOR GADSDEN COUNTY AS RESPONDENT AND ASKING THAT HE BE
REQUIRED TO SHOW CAUSE WHY HE SHOULD NOT BE ORDERED TO EITHER TAKE THE
STEPS NECESSARY TO OBTAIN DICKEY'S PRESENCE IN FLORIDA FOR TRIAL OR
WITHDRAW THE DETAINER FOR FAILURE TO PROVIDE DICKEY WITH A SPEEDY
TRIAL, AS GUARANTEED BY THE SIXTH AMENDMENT.  THE CIRCUIT COURT, IN AN
ORDER DATED DECEMBER 1, 1962, DENIED THE PETITION ON SEVERAL GROUNDS:
FIRST, THAT DICKEY'S UNAVAILABILITY FOR TRIAL IN FLORIDA WAS THE RESULT
OF HIS VOLUNTARY COMMISSION OF A FEDERAL CRIME, THE NATURAL CONSEQUENCE
OF WHICH WAS INCARCERATION IN A FEDERAL PENAL INSTITUTION; SECOND, THAT
THE SPEEDY-TRIAL ISSUE WAS PREMATURELY RAISED BECAUSE ONLY AT THE TIME
OF TRIAL CAN A DETERMINATION BE MADE AS TO WHETHER THE DELAY HAS MADE A
FAIR TRIAL IMPOSSIBLE; THIRD, THAT EVEN IF THE DENIAL OF AN IMMEDIATE
TRIAL WAS VIOLATIVE OF DICKEY'S SIXTH AMENDMENT RIGHTS, IT WAS A
DEPRIVATION CAUSED WHOLLY BY THE FEDERAL OFFICIALS HAVING CUSTODY OF
HIS PERSON, AND ANY RELIEF HAD TO FLOW FROM THOSE AUTHORITIES. 

DICKEY FILED PAPERS RAISING SUBSTANTIALLY THE SAME CONTENTIONS ON TWO
LATER OCCASIONS, APRIL 1, 1963, AND MARCH 28, 1966.  THE CIRCUIT COURT
DENIED BOTH PETITIONS, SIMPLY CITING THE PRIOR DENIAL DATED DECEMBER 1,
1962. 

DICKEY NEXT PETITIONED THE SUPREME COURT OF FLORIDA TO ISSUE A WRIT
OF MANDAMUS ORDERING THE CIRCUIT COURT TO EITHER SECURE HIS RETURN FOR
TRIAL OR WITHDRAW THE DETAINER AGAINST HIM.  THE CIRCUIT COURT JUDGE
FILED AS A RETURN THE ORDERS OF DECEMBER 1962, APRIL 1963, AND APRIL
1966.  THEREAFTER THE ATTORNEY GENERAL OF FLORIDA FILED A BRIEF IN
OPPOSITION ARGUING THAT DICKEY SHOULD NOT BE HEARD TO COMPLAIN THAT HE
HAD NOT RECEIVED A SPEEDY TRIAL IN GADSDEN COUNTY BECAUSE HIS
UNAVAILABILITY WAS CAUSED BY THE VOLUNTARY COMMISSION OF CRIMINAL
ACTS.  COUNSEL WAS APPOINTED FOR DICKEY AND THE FLORIDA SUPREME COURT
HEARD ARGUMENT ON THE PETITION FOR MANDAMUS. 

THE FLORIDA SUPREME COURT REJECTED THE STATE'S CLAIM THAT A PERSON
INCARCERATED FOR ONE CRIME HAS NO RIGHT TO DEMAND HIS CONSTITUTIONALLY
GUARANTEED RIGHT TO A SPEEDY TRIAL ON ANOTHER CHARGE.  DICKEY V.
CIRCUIT COURT, 200 SO.2D 521 (1967).  THE COURT HELD THAT INCARCERATION
DOES NOT MAKE THE ACCUSED UNAVAILABLE SINCE THERE HAVE LONG BEEN MEANS
BY WHICH ONE JURISDICTION, FOR THE PURPOSE OF A CRIMINAL TRIAL, CAN
OBTAIN CUSTODY OF A PRISONER HELD BY ANOTHER.  THAT COURT ALSO HELD
THAT THE PRISONER'S DEMAND UPON THE ACCUSING STATE GIVES RISE TO AN
OBLIGATION TO ACT AFFIRMATIVELY TO SECURE HIS PRESENCE FOR TRIAL;
FAILURE OF THE ACCUSING STATE TO PROMPTLY OBTAIN THE DEFENDANT FROM THE
DETAINING SOVEREIGN MIGHT INVALIDATE ANY JUDGMENT ULTIMATELY OBTAINED,
IF THE TIME LAPSE IS SUFFICIENTLY GREAT AND IS NOT EXCUSED.  /4/  THE
FLORIDA SUPREME COURT CONCLUDED THAT ONCE THE DISCRETIONARY DECISION TO
CHARGE A PRISONER WITH A CRIME HAS BEEN MADE, AN OBLIGATION ARISES TO
ACT DILIGENTLY TOWARD PROCURING THE ACCUSED FOR TRIAL AND THAT
OBLIGATION IS A MINISTERIAL DUTY SUBJECT TO A WRIT OF MANDAMUS. 
HOWEVER, SINCE DICKEY HAD NAMED THE CIRCUIT COURT AS THE RESPONDENT,
RATHER THAN THE APPROPRIATE STATE ATTORNEY, THE PETITION WAS DISMISSED
WITHOUT PREJUDICE TO HIS RIGHT TO FILE ANOTHER PETITION NAMING THE
APPROPRIATE RESPONDENT. 

ON SEPTEMBER 1, 1967, DICKEY FILED WITH THE CIRCUIT COURT A MOTION
TO HAVE THE COURT ORDER THE GADSDEN COUNTY STATE ATTORNEY TO DISMISS
THE DETAINER WARRANT BECAUSE HE HAD BEEN DENIED HIS RIGHT TO A SPEEDY
TRIAL.  THE STATE ATTORNEY THEN FILED A PETITION FOR A WRIT OF HABEAS
CORPUS AD PROSEQUENDUM TO SECURE DICKEY'S RETURN TO FLORIDA FOR TRIAL. 
ON DECEMBER 15, 1967, THE CIRCUIT COURT ISSUED THE WRIT, AND ON THE
SAME DAY THE STATE ATTORNEY FILED AN INFORMATION CHARGING DICKEY WITH
THE ARMED ROBBERY ALLEGEDLY COMMITTED IN 1960.  DICKEY WAS RETURNED TO
FLORIDA ON JANUARY 23, 1968.  ON JANUARY 30, THE DAY BEFORE THE TRIAL
WAS TO BEGIN, DICKEY'S APPOINTED COUNSEL FILED A MOTION FOR A
CONTINUANCE SO THAT THE WHEREABOUTS OF TWO WITNESSES COULD BE
DETERMINED, AND A MOTION ASKING THAT THE INFORMATION BE QUASHED ON THE
GROUND THAT THE DELAY OF OVER SEVEN YEARS AMOUNTED TO A DENIAL OF
DICKEY'S RIGHT TO A SPEEDY TRIAL.  THE MOTION ALLEGED THAT THE DELAY
WAS SUFFICIENTLY PREJUDICIAL TO MAKE A FAIR TRIAL IMPOSSIBLE.  /5/  THE
CIRCUIT COURT GRANTED THE CONTINUANCE BUT TOOK THE MOTION TO QUASH
UNDER ADVISEMENT.  THE TRIAL WAS SET FOR FEBRUARY 13. 

DICKEY'S COUNSEL FILED ANOTHER MOTION FOR A CONTINUANCE, DATED
FEBRUARY 12, STATING THAT ONE OF THE WITNESSES COULD NOT BE LOCATED AND
THAT MORE TIME WAS NEEDED.  /6/  THE COURT DENIED THE MOTION AND,
BEFORE THE COMMENCEMENT OF THE TRIAL ON THE NEXT DAY, DENIED THE MOTION
TO QUASH. 

AT THE TRIAL MRS. CLARK TESTIFIED FROM MEMORY AS TO THE DESCRIPTION
SHE HAD GIVEN THE DEPUTY AFTER THE CRIME, THAT SHE HAD IDENTIFIED
DICKEY IN THE JACKSON COUNTY JAIL, AND THAT HE WAS THE ROBBER.  SHE
STATED THAT SHE COULD NOT RECALL HAVING SEEN DICKEY BEFORE THE NIGHT OF
THE CRIME.  DEPUTY MARTIN ALSO TESTIFIED CONCERNING THE IDENTIFICATION
AT THE JACKSON JAIL, NOTING THAT THE JAILER WHO HAD BEEN PRESENT WHEN
MRS. CLARK VIEWED DICKEY HAD SINCE DIED.  HE FURTHER TESTIFIED AS TO
THE DESCRIPTION OF THE ROBBER MRS. CLARK HAD GIVEN HIM, ADMITTING THAT
HIS MEMORY WAS HAZY AND THAT THE NOTES HE HAD MADE WHILE INVESTIGATING
THE CRIME HAD LONG SINCE BEEN DESTROYED. 

THE RECORD INDICATES THAT DICKEY'S DEFENSE CONSISTED OF HIS CLAIM
THAT HE WAS IN WAYCROSS, GEORGIA, AT THE TIME OF THE CRIME AND OF
TESTIMONY OF ANOTHER WITNESS THAT HE AND DICKEY HAD VISITED THE
VICTIMIZED MOTEL SEVERAL TIMES.  FROM THIS LATTER EVIDENCE THE DEFENSE
ARGUED THE UNLIKELIHOOD THAT DICKEY WOULD COMMIT ROBBERY AT A PLACE
WHERE HE WAS KNOWN AND WOULD BE RECOGNIZED. 

DICKEY WAS CONVICTED AND SENTENCED TO 10 YEARS' IMPRISONMENT IN THE
STATE PENINTENTIARY, THE SENTENCE TO RUN CONSECUTIVELY WITH THE FEDERAL
TERM HE WAS THEN SERVING.  HE THEN SOUGHT REVIEW IN THE FLORIDA
DISTRICT COURT OF APPEAL, ALLEGING THAT THE TRIAL JUDGE HAD ERRED IN
NOT GRANTING HIS MOTION TO QUASH.  THAT COURT AFFIRMED THE CONVICTION
WITHOUT OPINION, SAYING ONLY THAT "APPELLANT . . . FAILED TO
DEMONSTRATE REVERSIBLE ERROR . . . ."  215 SO.2D 772, 773. 

        II 

THE RECORD IN THIS CASE SHOWS THAT PETITIONER WAS AVAILABLE TO THE
STATE AT ALL TIMES DURING THE SEVEN-YEAR PERIOD BEFORE HIS TRIAL.  THE
STATE SUGGESTS NO TENABLE REASON FOR DEFERRING THE TRIAL IN THE FACE OF
PETITIONER'S DILIGENT AND REPEATED EFFORTS BY MOTIONS IN THE STATE
COURT IN 1962, 1963, AND 1966 TO SECURE A PROMPT TRIAL.  IN THE
INTERVAL TWO WITNESSES DIED AND ANOTHER POTENTIAL DEFENSE WITNESS IS
ALLEGED TO HAVE BECOME UNAVAILABLE.  POLICE RECORDS OF POSSIBLE
RELEVANCE HAVE BEEN LOST OR DESTROYED. 

FLORIDA ARGUES THAT THE RIGHT OF THE PETITIONER UNDER THE FEDERAL
CONSTITUTION DID NOT ARISE UNTIL THIS COURT'S DECISION IN KLOPFER V.
NORTH CAROLINA, 386 U.S. 213 (1967), AND THAT NOT UNTIL SMITH V. HOOEY,
393 U.S. 374 (1969), WAS THERE A CONSTITUTIONAL REQUIREMENT THAT THE
STATE PRESS FOR TRIAL OF A DEFENDANT IN CUSTODY IN ANOTHER
JURISDICTION. 

AS NOTED BY THE COURT IN SMITH V. HOOEY, THE HOLDING OF THE KLOPFER
CASE WAS THAT 

"THE FOURTEENTH AMENDMENT (APPLYING) THE SIXTH AMENDMENT RIGHT TO A
SPEEDY TRIAL IS ENFORCEABLE AGAINST THE STATES AS 'ONE OF THE MOST
BASIC RIGHTS PRESERVED BY OUR CONSTITUTION.'"  393 U.S.,AT 374-375. 
FROM THIS THE COURT WENT ON TO HOLD THAT ON DEMAND A STATE HAD A DUTY
TO MAKE A DILIGENT AND GOOD-FAITH EFFORT TO SECURE THE PRESENCE OF THE
ACCUSED FROM THE CUSTODIAL JURISDICTION AND AFFORD HIM A TRIAL.  IN
SMITH WE REMANDED THE CASE TO THE STATE COURT WITHOUT DECIDING WHETHER
THE DEFENDANT, WHEN AVAILABLE FOR TRIAL IN THE STATE COURT, WOULD BE
REQUIRED TO SHOW PREJUDICE ARISING FROM THE DELAY. 

HERE THE STATE OF FLORIDA BROUGHT THE PETITIONER BACK TO FLORIDA,
TRIED, AND CONVICTED HIM.  PETITIONER'S CHALLENGE IS DIRECTLY TO THE
POWER OF THE STATE TO TRY HIM AFTER THE LAPSE OF ALMOST EIGHT YEARS
DURING WHICH HE REPEATEDLY DEMANDED AND WAS DENIED A TRIAL. 

THE RIGHT TO A SPEEDY TRIAL IS NOT A THEORETICAL OR ABSTRACT RIGHT
BUT ONE ROOTED IN HARD REALITY IN THE NEED TO HAVE CHARGES PROMPTLY
EXPOSED.  IF THE CASE FOR THE PROSECUTION CALLS ON THE ACCUSED TO MEET
CHARGES RATHER THAN REST ON THE INFIRMITIES OF THE PROSECUTION'S CASE,
AS IS THE DEFENDANT'S RIGHT, THE TIME TO MEET THEM IS WHEN THE CASH IS
FRESH.  STALE CLAIMS HAVE NEVER BEEN FAVORED BY THE LAW, AND FAR LESS
SO IN CRIMINAL CASES.  /7/  ALTHOUGH A GREAT MANY ACCUSED PERSONS SEEK
TO PUT OFF THE CONFRONTATION AS LONG AS POSSIBLE, THE RIGHT TO A PROMPT
INQUIRY INTO CRIMINAL CHARGES IS FUNDAMENTAL AND THE DUTY OF THE
CHARGING AUTHORITY IS TO PROVIDE A PROMPT TRIAL.  /8/  THIS IS BROUGHT
SHARPLY INTO FOCUS WHEN, AS HERE, THE ACCUSED PRESSES FOR AN EARLY
CONFRONTATION WITH HIS ACCUSERS AND WITH THE STATE.  CROWDED DOCKETS,
THE LACK OF JUDGES OR LAWYERS, AND OTHER FACTORS NO DOUBT MAKE SOME
DELAYS INEVITABLE.  HERE, HOWEVER, NO VALID REASON FOR THE DELAY
EXISTED; IT WAS EXCLUSIVELY FOR THE CONVENIENCE OF THE STATE.  ON THIS
RECORD THE DELAY WITH ITS CONSEQUENT PREJUDICE IS INTOLERABLE AS A
MATTER OF FACT AND IMPERMISSIBLE AS A MATTER OF LAW. 

IN ADDITION TO EXERTING EVERY EFFORT TO REQUIRE THE STATE TO TRY
HIM, THERE IS PRESENT IN THIS RECORD ABUNDANT EVIDENCE OF ACTUAL
PREJUDICE TO PETITIONER IN THE DEATH OF TWO POTENTIAL WITNESSES,
UNAVAILABILITY OF ANOTHER, AND THE LOSS OF POLICE RECORDS.  THIS IS
SUFFICIENT TO MAKE A REMAND ON THAT ISSUE UNNECESSARY.  /9/  WE
THEREFORE REVERSE AND REMAND TO THE DISTRICT COURT OF APPEAL OF
FLORIDA, FIRST DISTRICT, WITH DIRECTIONS TO VACATE THE JUDGMENT
APPEALED FROM AND DIRECT THE DISMISSAL OF ANY PROCEEDINGS ARISING OUT
OF THE CHARGES ON WHICH THAT JUDGMENT WAS BASED. 

/1/  THE DECLARATION OF RIGHTS, FLORIDA CONSTITUTION, READS IN
PERTINENT PART: 


"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL HAVE THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY, IN THE COUNTY WHERE THE
CRIME WAS COMMITTED COMMITTED . . . ." 

/2/  THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION PROVIDES
IN PERTINENT PART: 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO
A SPEEDY AND PUBLIC TRIAL . . . ."     /3/  UNDER FLORIDA LAW THIS STEP
TOLLED THE STATUTE OF LIMITATIONS.  SEE ROSENGARTEN V. STATE, 171 SO.2D
591 (DIST. CT. APP. FLA. 1965); DUBBS V. LEHMAN, 100 FLA. 799, 130 SO.
36 (1930); STATE V. EMANUEL, 153 SO.2D 839 (DIST. CT. APP. FLA. 1963). 

/4/  THE DECISION OF THE FLORIDA SUPREME COURT WAS BASED UPON BOTH
THE FLORIDA CONSTITUTION'S GUARANTEE OF A SPEEDY TRIAL, SEE N. 1,
SUPRA, AND THE SIMILAR GUARANTEE IN THE SIXTH AMENDMENT, THE LATTER
BEING APPLICABLE TO THE STATES THROUGH THE FOURTEENTH AMENDMENT'S DUE
PROCESS CLAUSE.  KLOPFER V. NORTH CAROLINA, 386 U.S. 213 (1967).  THE
FLORIDA COURT TREATED THESE GUARANTEES AS SUBSTANTIVELY COTERMINOUS. 
SEE 200 SO.2D 521, 524, 526-527.     /5/  THE MOTION TO QUASH STATED
THAT AN ESSENTIAL AND MATERIAL WITNESS, MRS. HAZEL VARNADORE, DICKEY'S
SISTER, HAD DIED IN 1964.  THE MOTION FURTHER STATED THAT HAD SHE BEEN
AVAILABLE SHE WOULD HAVE TESTIFIED THAT DICKEY CALLED HER AT 12:15
O'CLOCK IN THE MORNING OF JUNE 28, 1960, FROM WAYCROSS, GEORGIA.  THE
MOTION WAS ACCOMPANIED BY AN AFFIDAVIT TO THE SAME EFFECT, SIGNED BY
DICKEY. 

/6/  IN BOTH THE JANUARY 30 AND FEBRUARY 12 MOTIONS FOR A
CONTINUANCE DICKEY'S COUNSEL ASSERTED THAT HE HAD BEEN UNABLE TO LOCATE
ONE A. C. STRICKLAND.  THE DEFENSE EXPECTED THIS WITNESS TO TESTIFY
THAT HE HAD BEEN WITH DICKEY IN WAYCROSS, GEORGIA, ON JUNE 28, 1960,
THE DATE OF THE CRIME.  THIS WITNESS WAS NEVER LOCATED. 

/7/  CF. AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, SPEEDY TRIAL SEC. 4.1 (APPROVED DRAFT 1968). 

/8/  CF. AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, THE PROSECUTION FUNCTION AND THE DEFENSE FUNCTION SEC. 2.9
(TENT.  DRAFT MAR. 1970). 

/9/  CF. REGINA V. ROBINS, 1 COX CRIM.CAS.  114 (SOMERSET WINTER
ASSIZES, 1844). 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION WITH THE FOLLOWING RESERVATION AND
COMMENT. 

I THINK THAT CLAIMS SUCH AS THOSE OF THE PETITIONER IN THIS CASE,
ARISING OUT OF A STATE PROCEEDING, SHOULD BE JUDGED BY THE PRINCIPLES
OF PROCEDURAL FAIRNESS REQUIRED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, AND NOT BY "INCORPORATING" OR "ABSORBING" INTO
THE FOURTEENTH AMENDMENT THE "SPEEDY TRIAL" PROVISION OF THE SIXTH
AMENDMENT.  SEE MY CONCURRING OPINION IN KLOPFER V. NORTH CAROLINA, 386
U.S. 213, 226 (1967), AND MY SEPARATE OPINION IN SMITH V. HOOEY, 393
U.S. 374, 383 (1969).  THIS RESERVATION REFLECTS THE HOPE THAT SOME DAY
THE COURT WILL RETURN TO ADJUDICATING STATE CRIMINAL CASES IN
ACCORDANCE WITH THE HISTORIC MEANING OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, SEE, E.G., MY DISSENTING OPINION IN DUNCAN V.
LOUISIANA, 391 U.S. 145, 171 (1968). 

HOWEVER, WHETHER IT BE THE DUE PROCESS CLAUSE OR THE SIXTH AMENDMENT
THAT IS DEEMED TO APPLY, I FULLY AGREE THAT PETITIONER'S FEDERAL
CONSTITUTIONAL RIGHTS WERE VIOLATED BY FLORIDA'S ACTIONS IN THIS
INSTANCE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING. 

        I 

IN KLOPFER V. NORTH CAROLINA, 386 U.S. 213 (1967), THIS COURT HELD
THAT SIXTH AMENDMENT STANDARDS GOVERNING SPEEDY TRIAL ARE MADE
OBLIGATORY ON THE STATES BY THE FOURTEENTH AMENDMENT DUE PROCESS
CLAUSE.  PETITIONER'S PROSECUTION, HOWEVER, BEGAN IN JULY 1960, NEARLY
SEVEN YEARS BEFORE OUR DECISION IN KLOPFER.  ACCORDINGLY, ASSUMING,
ARGUENDO, THAT KLOPFER IS NOT RETROACTIVE, THE QUESTION HERE IS WHETHER
PETITIONER'S TRIAL WAS UNCONSTITUTIONALLY DELAYED UNDER THE TEST OF DUE
PROCESS APPLICABLE TO THE STATES PRIOR TO KLOPFER.  SEE, E.G., BEASLEY
V. PITCHESS, 358 F.2D 706 (C.A. 9TH CIR. 1966); UNITED STATES EX REL.
VON CSEH V. FAY, 313 F.2D 620 (C.A. 2D CIR. 1963); GERMANY V. HUDSPETH,
209 F.2D 15, 18-19 (C.A. 10TH CIR. 1954).  /1/  PETITIONER HAS
ESTABLISHED HIS CLAIM.  ALTHOUGH THE FLORIDA POLICE SECURED AN ARREST
WARRANT IN 1960 CHARGING PETITIONER WITH ARMED ROBBERY, HE WAS NOT
TRIED UNTIL 1968; HE DEMANDED A SPEEDY TRIAL AS EARLY AS 1962; HE HAS
SHOWN THAT HE WAS SUBSTANTIALLY PREJUDICED BY THE DELAY; AND THE STATE,
IT APPEARS, WAS DELIBERATELY SLOW IN PROSECUTING HIM.  THUS, I JOIN THE
COURT'S OPINION. 

I DO NOT READ THE COURT'S OPINION AS DECIDING THAT IN POST-KLOPFER
CASES (1) THE DEFENDANT CAN CHALLENGE ONLY DELAY OCCURRING AFTER HIS
ARREST; (2) HE IS NOT ENTITLED TO A SPEEDY TRIAL UNLESS HE DEMANDS IT
AT THE TIME OF THE DELAY; (3) HE MUST PROVE ACTUAL PREJUDICE, OR (4)
THE DELAY MUST BE DELIBERATELY CAUSED BY THE GOVERNMENT.  IT IS TIMELY
TO NOTE THAT THE COURT HAS AS YET GIVEN SCANT ATTENTION TO THESE AND
OTHER QUESTIONS ESSENTIAL TO THE DEFINITION OF THE SPEEDY-TRIAL
GUARANTEE.  BEFORE KLOPFER, ONLY THREE OF OUR OPINIONS DEALT AT ANY
LENGTH WITH THE RIGHT, AND EACH WAS DECIDED WITH LITTLE ANALYSIS OF ITS
SCOPE AND CONTENT.  SEE BEAVERS V. HAUBERT, 198 U.S. 77 (1905); POLLARD
V. UNITED STATES, 352 U.S. 354 (1957); UNITED STATES V. EWELL, 383 U.S.
116 (1966).  KLOPFER ITSELF ATTEMPTED NO EXTENSIVE ANALYSIS; NOR DID
OUR LATER DECISION, SMITH V. HOOEY, 393 U.S. 374 (1969).  AND TODAY WE
DO NOT CONSIDER THE EFFECT OF THE APPLICATION OF THE SPEEDY TRIAL
CLAUSE TO THE STATES.  THUS, ALTHOUGH WE SAID IN KLOPFER THAT THE RIGHT
TO A SPEEDY TRIAL IS "ONE OF THE MOST BASIC RIGHTS PRESERVED BY OUR
CONSTITUTION," 386 U.S.,AT 226, A GUARANTEE "AS FUNDAMENTAL AS ANY OF
THE RIGHTS SECURED BY THE SIXTH AMENDMENT," ID., AT 223, WE HAVE YET
EVEN TO TRACE ITS CONTOURS.  ACCORDINGLY, I THINK IT APPROPRIATE TO
POINT OUT CERTAIN OF THE MAJOR PROBLEMS THAT COURTS MUST CONSIDER IN
DEFINING THE SPEEDY-TRIAL GUARANTEE. 

        II 

IN MY VIEW, THERE ARE TWO GROUPS OF ISSUES TO BE MET IN INTERPRETING
THE RIGHT:  FIRST, THOSE CONCERNED WITH WHEN DURING THE CRIMINAL
PROCESS THE SPEEDY-TRIAL GUARANTEE ATTACHES, AND SECOND, THOSE
CONCERNED WITH THE CRITERIA BY WHICH TO JUDGE THE CONSTITUTIONALITY OF
THE DELAYS TO WHICH THE RIGHT DOES ATTACH.  THESE QUESTIONS, OF COURSE,
MUST BE ANSWERED IN LIGHT OF THE PURPOSES OF THE SPEEDY TRIAL CLAUSE. 
/2/  THE EVILS AT WHICH THE CLAUSE IS DIRECTED ARE READILY IDENTIFIED. 
IT IS INTENDED TO SPARE AN ACCUSED THOSE PENALTIES AND DISABILITIES--
INCOMPATIBLE WITH THE PRESUMPTION OF INNOCENCE-- THAT MAY SPRING FROM
DELAY IN THE CRIMINAL PROCESS.  THE COURT RECOGNIZED IN EWELL, SUPRA,
AT 120, THAT THE SPEEDY-TRIAL RIGHT "IS AN IMPORTANT SAFEGUARD TO
PREVENT UNDUE AND OPPRESSIVE INCARCERATION PRIOR TO TRIAL."  WE ALSO
RECOGNIZED IN EWELL THAT A SPEEDY TRIAL IS INTENDED "TO MINIMIZE
ANXIETY AND CONCERN ACCOMPANYING PUBLIC ACCUSATION."  IBID.  AS WE
OBSERVED IN KLOPFER, SUPRA, AT 222, LENGTHY PROSECUTION MAY SUBJECT AN
ACCUSED TO "PUBLIC SCORN AND DEPRIVE HIM OF EMPLOYMENT, AND ALMOST
CERTAINLY WILL FORCE CURTAILMENT OF HIS SPEECH, ASSOCIATIONS AND
PARTICIPATION IN UNPOPULAR CAUSES." 

THESE DISABILITIES, SINGLY OR IN LEAGUE, CAN IMPAIR THE ACCUSED'S
ABILITY TO MOUNT A DEFENSE.  THE PASSAGE OF TIME BY ITSELF, MOREOVER,
MAY DANGEROUSLY REDUCE HIS CAPACITY TO COUNTER THE PROSECUTION'S
CHARGES.  WITNESSES AND PHYSICAL EVIDENCE MAY BE LOST; THE DEFENDANT
MAY BE UNABLE TO OBTAIN WITNESSES AND PHYSICAL EVIDENCE YET AVAILABLE. 
HIS OWN MEMORY AND THE MEMORIES OF HIS WITNESSES MAY FADE.  SOME
DEFENSES, SUCH AS INSANITY, ARE LIKELY TO BECOME MORE DIFFICULT TO
SUSTAIN; AS ONE COURT HAS STATED, "(PASSAGE OF TIME MAKES PROOF OF ANY
FACT MORE DIFFICULT.  WHEN THE FACT AT ISSUE IS AS SUBTLE AS A MENTAL
STATE, THE DIFFICULTY IS IMMEASURABLY ENHANCED."  WILLIAMS V. UNITED
STATES, 102 U.S.APP.D.C. 51, 55, 250 F.2D 19, 23 (1957).  SEE ALSO
EWELL, SUPRA, AT 120. 

THE SPEEDY TRIAL CLAUSE PROTECTS SOCIETAL INTERESTS, AS WELL AS
THOSE OF THE ACCUSED.  THE PUBLIC IS CONCERNED WITH THE EFFECTIVE
PROSECUTION OF CRIMINAL CASES, BOTH TO RESTRAIN THOSE GUILTY OF CRIME
AND TO DETER THOSE CONTEMPLATING IT.  JUST AS DELAY MAY IMPAIR THE
ABILITY OF THE ACCUSED TO DEFEND HIMSELF, SO IT MAY REDUCE THE CAPACITY
OF THE GOVERNMENT TO PROVE ITS CASE.  SEE PONZI V. FESSENDEN, 258 U.S.
254, 264 (1922).  MOREOVER, WHILE AWAITING TRIAL, AN ACCUSED WHO IS AT
LARGE MAY BECOME A FUGITIVE FROM JUSTICE OR COMMIT OTHER CRIMINAL
ACTS.  AND THE GREATER THE LAPSE OF TIME BETWEEN COMMISSION OF AN
OFFENSE AND THE CONVICTION OF THE OFFENDER, THE LESS THE DETERRENT
VALUE OF HIS CONVICTION.  /3/ 

DELIBERATE GOVERNMENTAL DELAY IN THE HOPE OF OBTAINING AN ADVANTAGE
OVER THE ACCUSED IS NOT UNKNOWN.  IN SUCH A CIRCUMSTANCE, THE FAIR
ADMINISTRATION OF CRIMINAL JUSTICE IS IMPERILED.  THE SPEEDY TRIAL
CLAUSE THEN SERVES THE PUBLIC INTEREST BY PENALIZING OFFICIAL ABUSE OF
THE CRIMINAL PROCESS AND DISCOURAGING OFFICIAL LAWLESSNESS.  SEE, E.G.,
UNITED STATES V. PROVOO, 17 F.R.D. 183 (D.C. MD.), AFF'D PER CURIAM,
350 U.S. 857 (1955).  THUS THE GUARANTEE PROTECTS OUR COMMON INTEREST
THAT GOVERNMENT PROSECUTE, NOT PERSECUTE, THOSE WHOM IT ACCUSES OF
CRIME. 

        III 

AGAINST THIS BACKGROUND OF THE PURPOSES OF THE SPEEDY-TRIAL
SAFEGUARD, I TURN TO THE QUESTION OF WHEN DURING THE CRIMINAL PROCESS
THE RIGHT ATTACHES.  A CRIMINAL PROSECUTION HAS MANY STAGES, AND DELAY
MAY OCCUR DURING OR BETWEEN ANY OF THEM.  IT MAY TAKE PLACE AT THE
BEGINNING OF THE PROCESS:  BETWEEN THE TIME AT WHICH THE GOVERNMENT
DECIDES TO PROSECUTE A MAN AND HAS SUFFICIENT EVIDENCE TO PROCEED
AGAINST HIM AND THE ACTUAL TIME OF HIS ARREST OR INDICTMENT.  /4/  OR
IT MAY OCCUR, FOR INSTANCE, BETWEEN ARREST AND INDICTMENT, /5/  DURING
TRIAL, OR BETWEEN TRIAL AND SENTENCING. 

AUTHORITIES AGREE THAT DELAY BETWEEN INDICTMENT AND TRIAL IS SUBJECT
TO THE SPEEDY-TRIAL SAFEGUARD, E.G., LUCAS V. UNITED STATES, 363 F.2D
500, 502 (C.A. 9TH CIR. 1966), AND THERE IS SUBSTANTIAL AUTHORITY THAT
THE RIGHT ATTACHES UPON ARREST, E.G., HARDY V. UNITED STATES, 119
U.S.APP.D.C. 364, 365, 343 F.2D 233, 234 (1964).  BUT SEE, E.G., REECE
V. UNITED STATES, 337 F.2D 852 (C.A. 5TH CIR. 1964).  SIMILARLY, IT HAS
BEEN GENERALLY HELD THAT THE SPEEDY TRIAL CLAUSE APPLIES TO INTERVALS
BETWEEN SEPARATE INDICTMENTS OR BETWEEN SEPARATE TRIALS ON THE SAME
CHARGE, E.G., WILLIAMS V. UNITED STATES, SUPRA.  THIS COURT HAS
ASSUMED, ARGUENDO, BUT HAS NOT DECIDED, THAT THE INTERVAL BETWEEN
JUDGMENT AND SENTENCING IS GOVERNED BY THE CLAUSE, POLLARD V. UNITED
STATES, SUPRA, AT 361; SEE ALSO WELSH V. UNITED STATES, 348 F.2D 885
(C.A. 6TH CIR. 1965).  I HAVE FOUND NO CASES DEALING WITH DELAY DURING
THE TRIAL.  WITH SOME EXCEPTIONS, /6/  IT HAS BEEN HELD THAT THE RIGHT
TO SPEEDY TRIAL DOES NOT APPLY TO DELAYS THAT OCCUR BEFORE THE
DEFENDANT'S ARREST OR INDICTMENT, E.G., PARKER V. UNITED STATES, 252
F.2D 680, 681 (C.A. 6TH CIR. 1958); TERLIKOWSKI V. UNITED STATES, 379
F.2D 501, 503-504 (C.A. 8TH CIR. 1967). 

DOES THE SPEEDY-TRIAL GUARANTEE APPLY TO ALL DELAYS BETWEEN A
DEFENDANT'S ARREST AND HIS SENTENCING?  THE VIEW THAT IT DOES IS NOT
WITHOUT SUPPORT IN THE WORDING OF THE SIXTH AMENDMENT.  THE
CONSTITUTION SAYS THAT AN "ACCUSED" IS ENTITLED TO A SPEEDY TRIAL "(IN
ALL CRIMINAL PROSECUTIONS."  CAN IT BE THAT ONE BECOMES AN "ACCUSED"
ONLY AFTER HE IS INDICTED, OR THAT THE SIXTH AMENDMENT SUBDIVIDES
"PROSECUTION" INTO VARIOUS STAGES, GRANTING THE RIGHT TO SPEEDY TRIAL
IN SOME AND WITHHOLDING IT IN OTHERS?  IN RELATED CONTEXTS INVOLVING
OTHER CLAUSES OF THE SIXTH AMENDMENT, WE HAVE HELD THAT THE
"PROSECUTION" OF AN "ACCUSED" CAN BEGIN BEFORE HIS INDICTMENT; FOR
EXAMPLE, IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, 490 (1964), WE SPOKE OF
THE TIME WHEN "INVESTIGATION IS NO LONGER A GENERAL INQUIRY INTO AN
UNSOLVED CRIME BUT HAS BEGUN TO FOCUS ON A PARTICULAR SUSPECT."  AND AS
REGARDS REALIZATION OF THE PURPOSES OF THE SPEEDY TRIAL CLAUSE, THE
POSSIBILITY OF HARM TO INTERESTS PROTECTED BY THE CLAUSE IS CERTAINLY
GREAT WHENEVER DELAY OCCURS AFTER ARREST.  /7/ 

THE APPLICABILITY OF THE SAFEGUARD TO DELAYS OCCURRING BEFORE ARREST
OR INDICTMENT POSES A MORE DIFFICULT QUESTION.  A FEW COURTS HAVE
REASONED THAT THE LANGUAGE OF THE SIXTH AMENDMENT PRECLUDES ITS
APPLICATION THEN, /8/  AND PRIOR TO ARREST OR INDICTMENT NOT ALL OF THE
INTERESTS PROTECTED BY THE RIGHT ARE THREATENED.  THE ACCUSED SUFFERS
NO PRECONVICTION PENALTY, SINCE HIS FREEDOM IS NOT IMPAIRED BY ACTUAL
IMPRISONMENT OR CONDITIONED RELEASE.  HE SUFFERS NONE OF THE PERSONAL
OR SOCIAL DISABILITIES THAT FLOW FROM PUBLIC ACCUSATION.  AND, SO FAR
AS SOCIETY'S INTEREST IN THE EFFECTIVE PROSECUTION OF CRIMINAL CASES IS
CONCERNED, DELAY ON THE GOVERNMENT'S PART NEED NOT IMPAIR ITS ABILITY
TO PROVE THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT.  /9/ 

DELIBERATE GOVERNMENTAL DELAY DESIGNED TO HARM THE ACCUSED, HOWEVER,
CONSTITUTES ABUSE OF THE CRIMINAL PROCESS.  IT LESSENS THE DETERRENT
VALUE OF ANY CONVICTION OBTAINED.  AND IT VERY PROBABLY REDUCES THE
CAPACITY OF THE ACCUSED TO DEFEND HIMSELF; UNLIKE THE PROSECUTION, HE
MAY REMAIN UNAWARE THAT CHARGES ARE PENDING AND THUS FAIL TO TAKE STEPS
NECESSARY TO HIS DEFENSE.  /10/  ACCORDINGLY, SOME OF THE INTERESTS
PROTECTED BY THE SPEEDY TRIAL CLAUSE CAN BE THREATENED BY DELAY PRIOR
TO ARREST OR INDICTMENT.  THUS, IT MAY BE THAT FOR THE PURPOSES OF THE
CLAUSE TO BE FULLY REALIZED, IT MUST APPLY TO ANY DELAY IN THE CRIMINAL
PROCESS THAT OCCURS AFTER THE GOVERNMENT DECIDES TO PROSECUTE AND HAS
SUFFICIENT EVIDENCE FOR ARREST OR INDICTMENT.  /11/ 

SOME LOWER COURTS HAVE HELD THAT THE APPLICABLE STATUTE OF
LIMITATIONS PROVIDES THE EXCLUSIVE CONTROL OVER GOVERNMENTAL DELAY
PRIOR TO ARREST OR INDICTMENT.  SEE, E.G., UNITED STATES V. PANCZKO,
367 F.2D 737, 739 (C.A. 7TH CIR. 1966), WHICH FOUND DELAY IN BRINGING
CHARGES "LIMITED ONLY BY THE STATUTE OF LIMITATIONS."  WE SAID IN
EWELL, SUPRA, AT 122, THAT "THE APPLICABLE STATUTE OF LIMITATIONS . . .
IS USUALLY CONSIDERED THE PRIMARY GUARANTEE AGAINST BRINGING OVERLY
STALE CRIMINAL CHARGES."  SUCH LEGISLATIVE JUDGMENTS ARE CLEARLY
ENTITLED TO GREAT WEIGHT IN DETERMINING WHAT CONSTITUTES UNREASONABLE
DELAY.  BUT FOR SOME CRIMES THERE IS NO STATUTE OF LIMITATIONS.  NONE
EXISTS, FOR EXAMPLE, IN PROSECUTIONS OF FEDERAL CAPITAL OFFENSES, 18
U.S.C. 3281.  AND, EVEN WHEN THERE IS AN APPLICABLE STATUTE, ITS LIMITS
ARE SUBJECT TO CHANGE AT THE WILL OF THE LEGISLATURE, AND THEY ARE NOT
NECESSARILY CO-EXTENSIVE WITH THE LIMITS SET BY THE SPEEDY TRIAL
CLAUSE.  JUDGE WRIGHT, CONCURRING IN THE RESULT IN NICKENS V. UNITED
STATES, 116 U.S.APP.D.C. 338, 343 N. 4, 323 F.2D 808, 813 N. 4 (1963),
OBSERVED:  "THE LEGISLATURE IS FREE TO IMPLEMENT THE (SPEEDY-TRIAL)
RIGHT AND TO PROVIDE PROTECTIONS GREATER THAN THE CONSTITUTIONAL
RIGHT.  BUT THE MINIMUM RIGHT OF THE ACCUSED TO A SPEEDY TRIAL IS
PRESERVED BY THE COMMAND OF THE SIXTH AMENDMENT, WHATEVER THE TERMS OF
THE STATUTE."  CF. NICKENS, SUPRA, AT 340 N. 2, 323 F.2D, AT 810 N. 2. 

   IV 

WHAT ARE THE CRITERIA TO BE USED IN JUDGING THE CONSTITUTIONALITY OF
THOSE DELAYS TO WHICH THE SAFEGUARD APPLIES?  THIS COURT HAS STATED
THAT "(THE RIGHT OF A SPEEDY TRIAL IS NECESSARILY RELATIVE.  IT IS
CONSISTENT WITH DELAYS AND DEPENDS UPON CIRCUMSTANCES.  IT SECURES
RIGHTS TO A DEFENDANT.  IT DOES NOT PRECLUDE THE RIGHTS OF PUBLIC
JUSTICE."  BEAVERS V. HAUBERT, SUPRA, AT 87.  WE HAVE ALSO OBSERVED
THAT "(WHILE JUSTICE SHOULD BE ADMINISTERED WITH DISPATCH, THE
ESSENTIAL INGREDIENT IS ORDERLY EXPEDITION AND NOT MERE SPEED."  SMITH
V. UNITED STATES, 360 U.S. 1, 10 (1959).  IT APPEARS THAT CONSIDERATION
MUST BE GIVEN TO AT LEAST THREE BASIC FACTORS IN JUDGING THE
REASONABLENESS OF A PARTICULAR DELAY:  THE SOURCE OF THE DELAY, THE
REASONS FOR IT, AND WHETHER THE DELAY PREJUDICED INTERESTS PROTECTED BY
THE SPEEDY TRIAL CLAUSE.  /12/ 

A DEFENDANT MAY BE DISENTITLED TO THE SPEEDY-TRIAL SAFEGUARD IN THE
CASE OF A DELAY FOR WHICH HE HAS, OR SHARES, RESPONSIBILITY.  IT HAS
BEEN HELD, FOR EXAMPLE, THAT AN ACCUSED CANNOT SUSTAIN A SPEEDY-TRIAL
CLAIM WHEN DELAY RESULTS FROM HIS BEING A FUGITIVE FROM JUSTICE, MAKING
DILATORY PLEADINGS OR MOTIONS, FAILING TO OBJECT WHEN A CONTINUANCE IS
GRANTED THE GOVERNMENT, /13/  OR FROM DELAY OCCASIONED BY HIS
INCOMPETENCE TO STAND TRIAL, E.G., UNITED STATES V. DAVIS, 365 F.2D
251, 255 (C.A. 6TH CIR. 166). 

IT HAS ALSO BEEN HELD THAT THE DEFENDANT'S FAILURE, UPON BEING
CONFRONTED WITH DELAY, TO DEMAND A SPEEDY TRIAL JUSTIFIES THE DENIAL OF
HIS CLAIM.  /14/  IN OTHER WORDS, HIS SILENCE-- OR INACTION-- HAS BEEN
CONSTRUED AS AN IMPLIED RELINQUISHMENT OF THE RIGHT TO SPEEDY TRIAL,
E.G., UNITED STATES V. LUSTMAN, 258 F.2D 475, 478 (C.A. 2D CIR. 1958). 
/15/  THE VIEW THAT AN ACCUSED LOSES HIS RIGHT TO A SPEEDY TRIAL BY
SILENCE OR INACTION IS OPEN TO QUESTION ON AT LEAST THREE GROUNDS. 
FIRST, IT RESTS ON WHAT MAY BE AN UNREALISTIC UNDERSTANDING OF THE
EFFECT OF DELAY.  ONE COURT IN EXPLAINING THE "DEMAND" RULE STATED THAT
IT "IS BASED ON THE ALMOST UNIVERSAL EXPERIENCE THAT DELAY IN CRIMINAL
CASES IS WELCOMED BY DEFENDANTS AS IT USUALLY OPERATES IN THEIR
FAVOR."  UNITED STATES EX REL. VON CSEH V. FAY, 313 F.2D 620, 623 (C.A.
2D CIR. 1963).  IT IS TRUE THAT DELAY MAY BE WELCOMED BY AN ACCUSED,
ESPECIALLY IF HE GREATLY FEARS THE POSSIBLE CONSEQUENCES OF HIS TRIAL. 
SEE UNITED STATES V. CHASE, 135 F.SUPP.  230, 233 (D.C.N.D. ILL.
1955).  BUT AN ACCUSED MAY JUST AS EASILY OBJECT TO DELAY FOR ITS
PROLONGATION OF THE TIME IN WHICH HE MUST LIVE IN UNCERTAINTY, CARRYING
THE EMOTIONAL AND FINANCIAL BURDENS OF ACCUSATION, AND POSSESSING THE
CONDITIONED FREEDOM OF A POTENTIAL FELON.  MOREOVER, THE PASSAGE OF
TIME MAY THREATEN THE ABILITY OF BOTH THE DEFENDANT AND THE GOVERNMENT
TO PREPARE AND PRESENT A COMPLETE CASE; IN THIS REGARD, DELAY DOES NOT
INHERENTLY BENEFIT THE ACCUSED ANY MORE THAN IT DOES THE PROSECUTION. 

SECOND, THE EQUATION OF SILENCE OR INACTION WITH WAIVER IS A FICTION
THAT HAS BEEN CATEGORICALLY REJECTED BY THIS COURT WHEN OTHER
FUNDAMENTAL RIGHTS ARE AT STAKE.  OVER 30 YEARS AGO IN JOHNSON V.
ZERBST, 304 U.S. 458, 464 (1938), WE DEFINED "WAIVER" AS "AN
INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR
PRIVILEGE."  WE HAVE MADE CLEAR THAT COURTS SHOULD "INDULGE EVERY
REASONABLE PRESUMPTION AGAINST WAIVER," AETNA INS. CO. V. KENNEDY, 301
U.S. 389, 393 (1937), AND THAT THEY SHOULD "NOT PRESUME ACQUIESCENCE IN
THE LOSS OF FUNDAMENTAL RIGHTS."  OHIO BELL TEL. CO. V. PUBLIC
UTILITIES COMM'N, 301 U.S. 292, 307 (1937).  IN KLOPFER, SUPRA, AT 223,
WE HELD THAT THE RIGHT TO A SPEEDY TRIAL "IS AS FUNDAMENTAL AS ANY OF
THE RIGHTS SECURED BY THE SIXTH AMENDMENT."  IT IS A SAFEGUARD OF THE
INTERESTS OF BOTH THE ACCUSED AND THE COMMUNITY AS A WHOLE.  THUS, CAN
IT BE THAT AFFIRMATIVE ACTION BY AN ACCUSED IS REQUIRED TO PRESERVE--
RATHER THAN TO WAIVE-- THE RIGHT? 

THIRD, IT IS POSSIBLE THAT THE IMPLICATION OF WAIVER FROM SILENCE OR
INACTION MISALLOCATES THE BURDEN OF ENSURING A SPEEDY TRIAL.  THE
ACCUSED HAS NO DUTY TO BRING ON HIS TRIAL.  HE IS PRESUMED INNOCENT
UNTIL PROVED GUILTY; ARGUABLY, HE SHOULD BE PRESUMED TO WISH TO
EXERCISE HIS RIGHT TO BE TRIED QUICKLY, UNLESS HE AFFIRMATIVELY ACCEPTS
DELAY.  THE GOVERNMENT, ON THE OTHER HAND, WOULD SEEM TO HAVE A
RESPONSIBILITY TO GET ON WITH THE PROSECUTION, BOTH OUT OF FAIRNESS TO
THE ACCUSED AND TO PROTECT THE COMMUNITY INTERESTS IN A SPEEDY TRIAL. 
JUDGE WEINFELD OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK HAS OBSERVED, "I DO NOT CONCEIVE IT TO BE THE DUTY OF A DEFENDANT
TO PRESS THAT HE BE PROSECUTED UPON AN INDICTMENT UNDER PENALTY OF
WAIVING HIS RIGHT TO A SPEEDY TRIAL IF HE FAILS TO DO SO.  IT IS THE
DUTY OF THE PUBLIC PROSECUTOR, NOT ONLY TO PROSECUTE THOSE CHARGED WITH
CRIME, BUT ALSO TO OBSERVE THE CONSTITUTIONAL MANDATE GUARANTEEING A
SPEEDY TRIAL.  IF A PROSECUTOR FAILS TO DO SO, THE DEFENDANT CANNOT BE
HELD TO HAVE WAIVED HIS CONSTITUTIONAL RIGHT TO SPEEDY TRIAL."  UNITED
STATES V. DILLON, 183 F.SUPP.  541, 543 (1960).  /16/ 

IF THE DEFENDANT DOES NOT CAUSE THE DELAY OF HIS PROSECUTION, THE
RESPONSIBILITY FOR IT WILL ALMOST ALWAYS REST WITH ONE OR ANOTHER
GOVERNMENTAL AUTHORITY.  THE POLICE AND PROSECUTOR ARE NOT THE ONLY
GOVERNMENTAL OFFICIALS WHOSE CONDUCT IS GOVERNED BY THE SPEEDY TRIAL
CLAUSE; IT COVERS THAT OF COURT PERSONNEL AS WELL, E.G., POLLARD V.
UNITED STATES, SUPRA; MARSHALL V. UNITED STATES, 119 U.S.APP.D.C. 83,
337 F.2D 119 (1964).  AND THE PUBLIC OFFICIALS RESPONSIBLE FOR DELAY
MAY NOT EVEN BE ASSOCIATED WITH LAW ENFORCEMENT AGENCIES OR THE
COURTS.  DELAY, FOR EXAMPLE, MAY SPRING FROM A REFUSAL BY OTHER
BRANCHES OF GOVERNMENT TO PROVIDE THESE AGENCIES AND THE JUDICIARY WITH
THE RESOURCES NECESSARY FOR SPEEDY TRIALS.  SEE, E.G., KING V. UNITED
STATES, 105 U.S.APP.D.C. 193, 195, 265 F.2D 567, 569 (1959). 

WHEN IS GOVERNMENTAL DELAY REASONABLE?  CLEARLY, A DELIBERATE
ATTEMPT BY THE GOVERNMENT TO USE DELAY TO HARM THE ACCUSED, OR
GOVERNMENTAL DELAY THAT IS "PURPOSEFUL OR OPPRESSIVE," IS
UNJUSTIFIABLE.  POLLARD V. UNITED STATES, SUPRA, AT 361.  SEE ALSO
UNITED STATES V. PROVOO, SUPRA.  THE SAME MAY BE TRUE OF ANY
GOVERNMENTAL DELAY THAT IS UNNECESSARY, WHETHER INTENTIONAL OR
NEGLIGENT IN ORIGIN.  /17/  A NEGLIGENT FAILURE BY THE GOVERNMENT TO
ENSURE SPEEDY TRIAL IS VIRTUALLY AS DAMAGING TO THE INTERESTS PROTECTED
BY THE RIGHT AS AN INTENTIONAL FAILURE; WHEN NEGLIGENCE IS THE CAUSE,
THE ONLY INTEREST NECESSARILY UNAFFECTED IS OUR COMMON CONCERN TO
PREVENT DELIBERATE MISUSE OF THE CRIMINAL PROCESS BY PUBLIC OFFICIALS. 
THUS THE CRUCIAL QUESTION IN DETERMINING THE LEGITIMACY OF GOVERNMENTAL
DELAY MAY BE WHETHER IT MIGHT REASONABLY HAVE BEEN AVOIDED-- WHETHER IT
WAS UNNECESSARY.  TO DETERMINE THE NECESSITY FOR GOVERNMENTAL DELAY, IT
WOULD SEEM IMPORTANT TO CONSIDER, ON THE ONE HAND, THE INTRINSIC
IMPORTANCE OF THE REASON FOR THE DELAY, AND, ON THE OTHER, THE LENGTH
OF THE DELAY AND ITS POTENTIAL FOR PREJUDICE TO INTERESTS PROTECTED BY
THE SPEEDY-TRIAL SAFEGUARD.  FOR A TRIVIAL OBJECTIVE, ALMOST ANY DELAY
COULD BE REASONABLY AVOIDED.  SIMILARLY, LENGTHY DELAY, EVEN IN THE
INTEREST OF REALIZING AN IMPORTANT OBJECTIVE, WOULD BE SUSPECT. 
PERHAPS THE MOST IMPORTANT REASON FOR THE DELAY OF ONE CRIMINAL
PROSECUTION IS TO PERMIT THE PROSECUTION OF OTHER CRIMINAL CASES THAT
HAVE BEEN IN PROCESS LONGER THAN THE CASE DELAYED.  BUT SURELY EVEN
THIS OBJECTIVE CANNOT JUSTIFY INTERMINABLE INTERRUPTION OF A
PROSECUTION.  /18/ 

FINALLY, WHAT IS THE ROLE OF PREJUDICE IN SPEEDY-TRIAL
DETERMINATIONS?  THE DISCHARGE OF A DEFENDANT FOR DENIAL OF A SPEEDY
TRIAL IS A DRASTIC STEP, JUSTIFIABLE ONLY WHEN FURTHER PROCEEDINGS
AGAINST HIM WOULD HARM THE INTERESTS PROTECTED BY THE SPEEDY TRIAL
CLAUSE.  THUS IT IS UNLIKELY THAT A PROSECUTION MUST BE ENDED SIMPLY
BECAUSE THE GOVERNMENT HAS DELAYED UNNECESSARILY, WITHOUT THE AGREEMENT
OF THE ACCUSED.  THE COURTS BELOW, HOWEVER, ARE DIVIDED IN THEIR
CONCLUSIONS REGARDING PREJUDICE.  ONE COURT HAS STATED THAT "WE THINK
THAT A SHOWING OF PREJUDICE IS NOT REQUIRED WHEN A CRIMINAL DEFENDANT
IS ASSERTING A CONSTITUTIONAL RIGHT UNDER THE SIXTH AMENDMENT," UNITED
STATES V. LUSTMAN, 258 F.2D 475, 477-478 (C.A. 2D CIR. 1958).  SOME
HAVE HELD THAT PREJUDICE MAY BE ASSUMED AFTER LENGTHY DELAYS, E.G.,
HEDGEPETH V. UNITED STATES, 124 U.S.APP.D.C. 291, 294 AND N. 3, 364
F.2D 684, 687 AND N. 3 (1966).  OTHERS HAVE INSISTED THAT ITS EXISTENCE
BE SHOWN BY THE DEFENDANT, E.G., UNITED STATES V. JACKSON, 369 F.2D
936, 939 (C.A. 4TH CIR. 1966), THOUGH SOME COURTS HAVE SHIFTED THE
BURDEN OF PROOF TO THE GOVERNMENT AFTER LONG DELAY, E.G., WILLIAMS V.
UNITED STATES, 102 U.S.APP.D.C. 51, 53-54, 250 F.2D 19, 21-22 (1957). 

ALTHOUGH PREJUDICE SEEMS TO BE AN ESSENTIAL ELEMENT OF SPEEDY-TRIAL
VIOLATIONS, IT DOES NOT FOLLOW THAT PREJUDICE-- OR ITS ABSENCE, IF THE
BURDEN OF PROOF IS ON THE GOVERNMENT-- CAN BE SATISFACTORILY SHOWN IN
MOST CASES.  CERTAINLY, AS THE PRESENT CASE INDICATES, IT CAN BE
ESTABLISHED IN SOME INSTANCES.  IT IS OBVIOUS, FOR EXAMPLE, IF THE
ACCUSED HAS BEEN IMPRISONED FOR A LENGTHY PERIOD AWAITING TRIAL, OR IF
THE GOVERNMENT HAS DELAYED IN CLEAR BAD FAITH.  BUT CONCRETE EVIDENCE
OF PREJUDICE IS OFTEN NOT AT HAND.  EVEN IF IT IS POSSIBLE TO SHOW THAT
WITNESSES AND DOCUMENTS, ONCE PRESENT, ARE NOW UNAVAILABLE, PROVING
THEIR MATERIALITY IS MORE DIFFICULT.  AND IT BORDERS ON THE IMPOSSIBLE
TO MEASURE THE COST OF DELAY IN TERMS OF THE DIMMED MEMORIES OF THE
PARTIES AND AVAILABLE WITNESSES.  AS WAS STATED IN ROSS V. UNITED
STATES, 121 U.S.APP.D.C. 233, 238, 349 F.2D 210, 215 (1965):  "(THE
DEFENDANT'S) FAILURE OF MEMORY AND HIS INABILITY TO RECONSTRUCT WHAT HE
DID NOT REMEMBER VIRTUALLY PRECLUDED HIS SHOWING IN WHAT RESPECTS HIS
DEFENSE MIGHT HAVE BEEN MORE SUCCESSFUL IF THE DELAY HAD BEEN SHORTER .
. . . IN A VERY REAL SENSE, THE EXTENT TO WHICH HE WAS PREJUDICED BY
THE GOVERNMENT'S DELAY IS EVIDENCED BY THE DIFFICULTY HE ENCOUNTERED IN
ESTABLISHING WITH PARTICULARITY THE ELEMENTS OF THAT PREJUDICE." 
SIMILARLY, THERE IS UUSALLY LITTLE CHANCE OF CONCLUSIVELY SHOWING THE
HARM SUSTAINED BY AN ACCUSED AS A RESULT OF PUBLIC ACCUSATION.  ONE
COMMENTATOR HAS STATED THAT "(THERE IS NO WAY OF PROVING THE PREJUDICE
TO THE ACCUSED WHICH OCCURS OUTSIDE THE COURTROOM . . . THE PUBLIC
SUSPICION, THE SEVERING OF FAMILY AND SOCIAL TIES, AND THE PERSONAL
ANXIETY."  NOTE, THE RIGHT TO A SPEEDY CRIMINAL TRIAL, 57 COL.L.REV. 
846, 864.  NOR, OF COURSE, IS THERE ANY READY WAY OF ESTABLISHING THE
PREJUDICE TO COMMUNITY INTERESTS FROM DELAY. 

DESPITE THE DIFFICULTIES OF PROVING, OR DISPROVING, ACTUAL HARM IN
MOST CASES, IT SEEMS THAT INHERENT IN PROSECUTORIAL DELAY IS "POTENTIAL
SUBSTANTIAL PREJUDICE," UNITED STATES V. WADE, 388 U.S. 218, 227
(1967), TO THE INTERESTS PROTECTED BY THE SPEEDY TRIAL CLAUSE.  THE
SPEEDY-TRIAL SAFEGUARD IS PREMISED UPON THE REALITY THAT FUNDAMENTAL
UNFAIRNESS IS LIKELY IN OVERLONG PROSECUTIONS.  WE SAID IN EWELL,
SUPRA, AT 120, THAT THE GUARANTEE OF A SPEEDY TRIAL "IS AN IMPORTANT
SAFEGUARD . . . TO LIMIT THE POSSIBILITIES THAT LONG DELAY WILL IMPAIR
THE ABILITY OF AN ACCUSED TO DEFEND HIMSELF," AND JUDGE FRANKEL OF THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK HAS STATED THAT
"PREJUDICE MAY FAIRLY BE PRESUMED SIMPLY BECAUSE EVERYONE KNOWS THAT
MEMORIES FADE, EVIDENCE IS LOST, AND THE BURDEN OF ANXIETY UPON ANY
CRIMINAL DEFENDANT INCREASES WITH THE PASSING MONTHS AND YEARS." 
UNITED STATES V. MANN, 291 F.SUPP.  268, 271 (1968). 

WITHIN THE CONTEXT OF SIXTH AMENDMENT RIGHTS, THE DEFENDANT GENERALLY
DOES NOT HAVE TO SHOW THAT HE WAS PREJUDICED BY THE DENIAL OF COUNSEL,
CONFRONTATION, PUBLIC TRIAL, AN IMPARTIAL JURY, KNOWLEDGE OF THE
CHARGES AGAINST HIM, TRIAL IN THE DISTRICT WHERE THE CRIME WAS
COMMITTED, OR COMPULSORY PROCESS.  /19/  BECAUSE POTENTIAL SUBSTANTIAL
PREJUDICE INHERES IN THE DENIAL OF ANY OF THESE SAFEGUARDS, PREJUDICE
IS USUALLY ASSUMED WHEN ANY OF THEM IS SHOWN TO HAVE BEEN DENIED. 
BECAUSE CONCRETE EVIDENCE THAT THEIR DENIAL CAUSED THE DEFENDANT
SUBSTANTIAL PREJUDICE IS OFTEN UNAVAILABLE, PREJUDICE MUST BE ASSUMED,
OR CONSTITUTIONAL RIGHTS WILL BE DENIED WITHOUT REMEDY.  PREJUDICE IS
AN ISSUE, AS A RULE, ONLY IF THE GOVERNMENT WISHES TO ARGUE HARMLESS
ERROR.  SEE CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1967).  WHEN THE SIXTH
AMENDMENT RIGHT TO SPEEDY TRIAL IS AT STAKE, IT MAY BE EQUALLY
REALISTIC AND NECESSARY TO ASSUME PREJUDICE ONCE THE ACCUSED SHOWS THAT
HE WAS DENIED A RAPID PROSECUTION. 

THE DIFFICULTY IN SUCH AN APPROACH, OF COURSE, LIES IN DETERMINING
HOW LONG A PROSECUTION MUST BE DELAYED BEFORE PREJUDICE IS ASSUMED.  IT
IS LIKELY THAT GENERALIZED STANDARDS WOULD HAVE TO BE DEVELOPED TO
INDICATE WHEN DURING THE COURSE OF A DELAY THERE ARISES A PROBABILITY
OF SUBSTANTIAL PREJUDICE.  UNTIL DELAY EXCEEDS THAT POINT, THE BURDEN
MOST PROBABLY WOULD REMAIN ON THE ACCUSED TO SHOW THAT HE WAS ACTUALLY
HARMED.  ONCE, HOWEVER, DELAY EXCEEDS THAT POINT, PREJUDICE WOULD CEASE
TO BE AN ISSUE, UNLESS THE GOVERNMENT WISHED TO ARGUE HARMLESS ERROR. 
/20/  THOUGH ONE TEMPORAL STANDARD COULD VERY LIKELY GOVERN MOST
PROSECUTIONS, ACCOUNT WOULD NEED TO BE TAKEN OF THOSE TYPES OF CASES
THAT DIVERGE FROM THE NORM.  /21/     THUS, IT MAY BE THAT AN ACCUSED
MAKES OUT A PRIMA FACIE CASE OF DENIAL OF SPEEDY TRIAL BY SHOWING THAT
HIS PROSECUTION WAS DELAYED BEYOND THE POINT AT WHICH A PROBABILITY OF
PREJUDICE AROSE AND THAT HE WAS NOT RESPONSIBLE FOR THE DELAY, AND BY
ALLEGING THAT THE GOVERNMENT MIGHT REASONABLY HAVE AVOIDED IT.
ARGUABLY THE BURDEN SHOULD THEN SHIFT TO THE GOVERNMENT TO ESTABLISH,
IF POSSIBLE, THAT THE DELAY WAS NECESSARY, BY SHOWING THAT THE REASON
FOR IT WAS OF SUFFICIENT IMPORTANCE TO JUSTIFY THE TIME LOST.  /22/
GENERAL STANDARDS COULD BE DEVELOPED BY DETERMINING, FIRST, THE WEIGHT
TO BE GIVEN VARIOUS GROUNDS FOR DELAY AND, THEN, HOW GREAT A DELAY IS
JUSTIFIABLE FOR EACH.  SOME GROUNDS, SUCH AS AN ATTEMPT TO GAIN AN
ADVANTAGE OVER THE ACCUSED, WOULD HAVE NO VALUE; LEGITIMATE REASONS
MIGHT HAVE DIFFERENT WEIGHTS, AN ATTEMPT TO LOCATE A MINOR PROSECUTION
WITNESS HAVING LESS JUSTIFICATORY FORCE THAN AN ATTEMPT TO LOCATE A
WITNESS ON WHOSE TESTIMONY THE PROSECUTION HINGES. 

        V 

THESE COMMENTS PROVIDE NO DEFINITIVE ANSWERS.  I MAKE THEM ONLY TO
INDICATE THAT MANY-- IF NOT MOST-- OF THE BASIC QUESTIONS ABOUT THE
SCOPE AND CONTEXT OF THE SPEEDY-TRIAL GUARANTEE REMAIN TO BE RESOLVED. 
ARGUMENTS OF SOME FORCE CAN BE MADE THAT THE GUARANTEE ATTACHES AS SOON
AS THE GOVERNMENT DECIDES TO PROSECUTE AND HAS SUFFICIENT EVIDENCE FOR
ARREST OR INDICTMENT; SIMILAR ARGUMENTS EXIST THAT AN ACCUSED DOES NOT
LOSE HIS RIGHT TO A SPEEDY TRIAL BY SILENCE OR INACTION, THAT
GOVERNMENTAL DELAY THAT MIGHT REASONABLY HAVE BEEN AVOIDED IS
UNJUSTIFIABLE, AND THAT PREJUDICE CEASES TO BE AN ISSUE IN SPEEDY-TRIAL
CASES ONCE THE DELAY HAS BEEN SUFFICIENTLY LONG TO RAISE A PROBABILITY
OF SUBSTANTIAL PREJUDICE.  INSOFAR AS THESE ARGUMENTS ARE MERITORIOUS,
THEY SUGGEST THAT THE SPEEDY-TRIAL GUARANTEE SHOULD RECEIVE A MORE
HOSPITABLE INTERPRETATION THAN IT HAS YET BEEN ACCORDED. 

/1/  CF. IN RE OLIVER, 333 U.S. 257 (1948), WHERE, WITHOUT RELIANCE
ON THE SIXTH AMENDMENT, THE COURT HELD THAT A STATE VIOLATES THE DUE
PROCESS CLAUSE BY DENYING AN ACCUSED A PUBLIC TRIAL.  THE SIXTH
AMENDMENT, OF COURSE, LINKS THE RIGHTS OF SPEEDY AND PUBLIC
ADJUDICATION, GUARANTEEING IN ONE PHRASE "A SPEEDY AND PUBLIC TRIAL." 

/2/  RECORDS OF THE INTENT OF ITS FRAMERS ARE SPARSE.  THERE IS, FOR
EXAMPLE, NO ACCOUNT OF THE SENATE DEBATE, AND THE HOUSE DELIBERATIONS
GIVE LITTLE INDICATION OF THE REPRESENTATIVES' INTENT.  SEE NOTE, THE
RIGHT TO A SPEEDY TRIAL, 20 STAN.L.REV.  476, 484-485 (1968). 
NONETHELESS, THERE APPEARS TO HAVE BEEN GENERAL AGREEMENT AMONG THE
FRAMERS THAT A SPEEDY TRIAL IS ESSENTIAL TO FUNDAMENTAL FAIRNESS.  THE
PRINCIPAL OPPOSITION TO THE CLAUSE WAS INSIGNIFICANT:  IT CAME FROM A
REPRESENTATIVE CONCERNED LEST TRIAL BE SO SPEEDY THAT AN ACCUSED NOT
HAVE AN OPPORTUNITY TO SECURE WITNESSES MATERIAL TO HIS DEFENSE.  SEE 1
ANNALS OF CONG. 756; F. HELLER, THE SIXTH AMENDMENT 31 (1951).  THE
FRAMERS SEEM CLEARLY TO HAVE UNDERSTOOD AND VALUED THE RIGHT IN THE
CONTEXT OF ITS COMMON-LAW ANTECEDENTS.  SEE THE HISTORICAL DISCUSSION
IN KLOPFER, SUPRA, AT 223-226. 

/3/  SEE AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, SPEEDY TRIAL 10-11 (APPROVED DRAFT 1968); UNITED STATES EX
REL. SOLOMON V. MANCUSI, 412 F.2D 88, 93 (C.A. 2D CIR. 1969) (FEINBERG,
J., DISSENTING). 

/4/  DELAY MAY ALSO OCCUR DURING THE APPELLATE PROCESS OR DURING
COLLATERAL PROCEEDINGS.  I DO NOT CONSIDER THOSE SITUATIONS HERE. 

/5/  BY "INDICTMENT" I REFER TO THE BRINGING OF CHARGES AGAINST A
DEFENDANT, WHETHER BY INFORMATION, INDICTMENT, OR SOME ANALOGOUS
PROCEDURE. 

/6/  SEE, E.G., MANN V. UNITED STATES, 113 U.S.APP.D.C. 27, 29-30,
N. 4, 304 F.2D 394, 396-397, N. 4 (1962); UNITED STATES V. REED, 285
F.SUPP.  738, 740 (D.C.D.C. 1968); CF. SANCHEZ V. UNITED STATES, 341
F.2D 225, 228 N. 3 (C.A. 9TH CIR. 1965). 

/7/  AT WHATEVER POINT DELAY THEN OCCURS, THE ACCUSED CAN SUFFER THE
PENALTIES AND DISABILITIES OF A PROLONGED PROSECUTION.  HIS STOCK OF
EMOTIONAL AND FINANCIAL RESOURCES CONTINUES TO BE SPENT.  HIS CAPACITY
TO DEFEND HIMSELF MAY BE UNDERMINED.  IT IS TRUE THAT ONCE TRIAL HAS
BEGUN, OR AFTER ONE TRIAL HAS BEEN COMPLETED, HE SHOULD HAVE LESS
DIFFICULTY IN DEFENDING HIMSELF; BUT EVEN THEN DELAY CAN RESULT IN THE
LOSS OF WITNESSES OR DETERIORATION IN THE VALUE OF AVAILABLE TESTIMONY,
AND, OF COURSE, ISSUES FOR WHICH NO PREPARATION WAS PREVIOUSLY MADE CAN
ARISE WITH THE PASSAGE OF TIME.  THE GOVERNMENT'S ABILITY TO PROVE ITS
CASE CAN ALSO SUFFER FROM DELAY; EVEN SHOULD A CONVICTION BE OBTAINED,
ITS DETERRENT VALUE WOULD BE LESSENED BY ITS DISTANCE FROM THE
OFFENSE.  AND IF GOVERNMENTAL DELAY IS DELIBERATE, INTENDED TO HARM THE
ACCUSED, IT STRIKES AT THE FAIRNESS OF OUR CRIMINAL PROCESS. 

/8/  SEE, E.G., PEOPLE V. JORDAN, 45 CAL.2D 697, 708, 290 P.2D 484,
491 (1955).  AGAIN, HOWEVER, IT CAN BE ARGUED THAT IT IS UNREALISTIC
FOR SPEEDY-TRIAL PURPOSES TO SAY THAT A MAN IS NOT AN "ACCUSED" ONCE
THE GOVERNMENT HAS DECIDED TO PROSECUTE HIM AND HAS SUFFICIENT EVIDENCE
TO MOVE AGAINST HIM, OR THAT HIS "PROSECUTION" DOES NOT BEGIN AT THAT
TIME. 

/9/  THE GOVERNMENT MAY DELAY FOR A VARIETY OF REASONS, E.G., TO
GAIN TIME IN WHICH TO STRENGTHEN AND DOCUMENT ITS CASE WHILE THE
POTENTIAL DEFENDANT REMAINS UNAWARE, OR IN THE HOPE THAT THE PASSAGE OF
TIME WILL DENY HIM CERTAIN WITNESSES OR EVIDENCE.  THE GOVERNMENT MAY
ALSO DELAY, NOT WITH A VIEW TO ENSURING THE CONVICTION OF THE ACCUSED,
BUT TO USE THE THREAT OF HIS TRIAL TO COERCE HIM INTO ASSISTING POLICE
OPERATIONS OR BECOMING A PROSECUTION WITNESS IN OTHER CASES.  DELAY, OF
COURSE, MAY ALSO RESULT BECAUSE THE GOVERNMENT LACKS SUFFICIENT
RESOURCES TO MOVE MORE QUICKLY OR BECAUSE IT NEGLIGENTLY FAILS TO ACT. 
WHEN DELAY IS NOT THE RESULT OF AN INTENTIONAL ATTEMPT TO STRENGTHEN
THE GOVERNMENT'S CASE, IT WILL VERY LIKELY MAKE MORE DIFFICULT PROOF OF
THE ACCUSED'S GUILT. 

/10/  SUCH A PERSON IS IN MUCH THE SAME POSITION AS AN ACCUSED
IMPRISONED IN ONE JURISDICTION WHO IS UNAWARE THAT ANOTHER JURISDICTION
HAS FORMAL CHARGES OUTSTANDING AGAINST HIM.  THE LATTER HAS BEEN HELD
TO HAVE THE PROTECTION OF THE SPEEDY TRIAL CLAUSE, E.G., FOUTS V.
UNITED STATES, 253 F.2D 215, 218 (C.A. 6TH CIR. 1958). 

/11/  THIS WOULD NOT NECESSARILY MEAN THAT THE GOVERNMENT SHOULD BE
DENIED BROAD DISCRETION TO DETERMINE THAT ITS EVIDENCE IS INSUFFICIENT
TO MAKE WORTHWHILE AN ARREST OR INDICTMENT, OR THAT IT MAY NOT HAVE
LEGITIMATE REASONS FOR DELAY OTHER THAN INSUFFICIENT EVIDENCE; MODERATE
DELAY NECESSARY FOR LAW ENFORCEMENT OPERATIONS, SUCH AS THE COMPLETION
OF UNDERCOVER WORK INVOLVING A NUMBER OF SUSPECTS, MAY BE COMPATIBLE
WITH THE SPEEDY TRIAL CLAUSE.  AND, OF COURSE, THE QUESTION WHETHER,
AFTER AN ACCUSED HAS BEEN ARRESTED OR INDICTED, HE MAY CHALLENGE PRIOR
GOVERNMENTAL DELAY IS WHOLLY DISTINCT FROM THE QUESTION WHETHER BEFORE
ARREST OR INDICTMENT HE MAY BRING AN ACTION TO COMPEL THE GOVERNMENT TO
BEGIN FORMAL PROCEEDINGS AGAINST HIM. 

/12/  FOUR FACTORS-- LENGTH OF THE DELAY, THE REASON FOR IT,
PREJUDICE TO THE DEFENDANT CAUSED BY IT, AND WAIVER BY THE ACCUSED OF
SPEEDY TRIAL-- ARE OFTEN MENTIONED AS THE DETERMINANTS OF
REASONABLENESS.  SEE, E.G., UNITED STATES V. SIMMONS, 338 F.2D 804, 807
(C.A. 2D CIR. 1964).  THE LENGTH OF THE DELAY, HOWEVER, APPEARS TO BE
SIGNIFICANT PRINCIPALLY AS IT AFFECTS THE LEGITIMACY OF THE REASONS FOR
DELAY AND THE LIKELIHOOD THAT IT HAD PREJUDICIAL EFFECTS.  AND WAIVER
BY THE ACCUSED SEEMS RELEVANT PRIMARILY TO THE SOURCE OF THE DELAY. 

/13/  SEE THE CASES NOTED IN NOTE, THE LAGGING RIGHT TO A SPEEDY
TRIAL, 51 VA.L.REV.  1587, 1598-1599 (1965). 

/14/  BUT SEE THE REJECTION BY SOME STATES OF THE VIEW THAT THE
RIGHT TO SPEEDY TRIAL CAN BE LOST BY SILENCE OR INACTION. 
REPRESENTATIVE CASES ARE CITED IN 51 VA.L.REV.,SUPRA, N. 13, AT 1604 N.
87. 

/15/  FOR ELABORATION OF THE "DEMAND" RULE, SEE GENERALLY NOTE, THE
RIGHT TO A SPEEDY CRIMINAL TRIAL, 57 COL.L.REV.  846, 852-855 (1957);
51 VA.L.REV.,SUPRA, N. 13, AT 1601-1609. 

/16/  THE DEFENDANT, IN ANY EVENT, CANNOT FORCE THE BEGINNING OF HIS
TRIAL, EVEN IF HE TAKES AFFIRMATIVE STEPS TO THAT END.  THE PRESENT
CASE PROVIDES A STRIKING INSTANCE OF THIS FACT.  THE GOVERNMENT, ON THE
OTHER HAND, CAN AND DOES SET THE CASE FOR TRIAL.  THUS, CONSTITUTIONAL
RIGHT ASIDE, THE GOVERNMENT MIGHT REASONABLY BEAR THE BURDEN OF GOING
FORWARD WITH THE TRIAL SINCE IT ALONE HAS THE ULTIMATE CAPACITY TO DO
SO.  THE BURDEN, MOREOVER, MIGHT REASONABLY FALL ON THE GOVERNMENT
SINCE THE PROSECUTOR IS THE INITIATING PARTY IN CRIMINAL PROCEEDINGS. 
CF. FED. RULE CIV. PROC. 41(B) (DISMISSAL FOR FAILURE TO PROSECUTE BY
THE PLAINTIFF). 

/17/  IT HAS BEEN HELD THAT NEGLIGENT DELAY VIOLATES THE SPEEDY
TRIAL CLAUSE, HANRAHAN V. UNITED STATES, 121 U.S.APP.D.C. 134, 139, 348
F.2D 363, 368 (1965); UNITED STATES V. REED, 285 F.SUPP.  738, 741
(D.C.D.C. 1968).  CF. FED. RULE CRIM. PROC. 48(B), WHICH GIVES THE
FEDERAL COURTS DISCRETION TO DISMISS AN INDICTMENT IF THERE HAS BEEN
"UNNECESSARY" DELAY IN PROSECUTION. 

/18/  AS THE COURT STATED IN KING V. UNITED STATES, 105 U.S.APP.D.C.
193, 195, 265 F.2D 567, 569 (1959), "(CASES HAVE TO TAKE THEIR TURN. 
THE CASE ON TRIAL IS ENTITLED TO DELIBERATE CONSIDERATION; THE OTHERS
ON THE CALENDAR STACK UP.  AT THE SAME TIME, TOO MUCH HEED TO
PRACTICALITIES MAY ENCROACH UPON THE INDIVIDUAL'S RIGHTS.  IF THE
LEGISLATURE WERE TO REFUSE TO INSTALL SUFFICIENT JUDICIAL MACHINERY TO
PERFORM THE JUDICIAL TASKS, IT MIGHT BE NECESSARY TO TURN SOME ACCUSED
PERSONS LOOSE." 

/19/  SEE THE CASES CITED IN 20 STAN.L.REV.,SUPRA, N. 2, AT 494
495. 

/20/  WE HAVE INDICATED THAT "THERE ARE SOME CONSTITUTIONAL RIGHTS
(SUCH AS ASSISTANCE OF COUNSEL DURING TRIAL) SO BASIC TO A FAIR TRIAL
THAT THEIR INFRACTION CAN NEVER BE TREATED AS HARMLESS ERROR." 
CHAPMAN, SUPRA, AT 23.  THE SAME MAY BE TRUE OF PROSECUTORIAL DELAYS OF
GREAT LENGTH.  CF. UNITED STATES V. CHASE, 135 F.SUPP.  230, 233
(D.C.N.D. ILL. 1955). 

/21/  FOR EXAMPLE, LESS THAN AVERAGE DELAY MIGHT GIVE RISE TO THE
PROBABILITY OF PREJUDICE IN CASES WHERE THE EVIDENCE CONSISTS OF THE
TESTIMONY OF A FEW WITNESSES, AS OPPOSED TO DOCUMENTARY EVIDENCE.  SEE
THE DISCUSSION IN 20 STAN.L.REV.,SUPRA, N. 2, AT 499-500. 

/22/  THE GOVERNMENT MIGHT APPROPRIATELY BEAR THIS BURDEN, SINCE IT,
FAR MORE THAN THE DEFENDANT, IS LIKELY TO KNOW WHY THE DELAY TOOK
PLACE.  COURTS BELOW, HOWEVER, HAVE GENERALLY REQUIRED THE DEFENDANT TO
SHOW THAT THE DELAY WAS UNNECESSARY, E.G., SCHLINSKY V. UNITED STATES,
379 F.2D 735, 737 (C.A. 1ST CIR. 1967). 

JOHN D. BUCHANAN, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

GEORGE R. GEORGIEFF, ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS EARL FAIRCLOTH,
ATTORNEY GENERAL. 
..END :

















SCHACHT V. UNITED STATES, 398 U.S. 58 


       SCHACHT V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 628.  ARGUED MARCH 31, 1970-- DECIDED MAY 25, 1970. 


PETITIONER, WHO PARTICIPATED IN A SKIT PERFORMED SEVERAL TIMES IN
FRONT OF AN ARMED FORCES INDUCTION CENTER DEMONSTRATING OPPOSITION TO
AMERICAN INVOLVEMENT IN THE VIETNAM CONFLICT, WAS CONVICTED BY A JURY
OF VIOLATING 18 U.S.C. 702, WHICH MAKES CRIMINAL THE UNAUTHORIZED
WEARING OF AN AMERICAN MILITARY UNIFORM OR PART THEREOF.  PETITIONER
ALLEGED THAT HE WAS AUTHORIZED TO WEAR THE UNIFORM BY 10 U.S.C. 772(F),
WHICH PERMITS WEARING OF A UNIFORM WHILE ONE IS PORTRAYING A MEMBER OF
AN ARMED FORCE IN A THEATRICAL OR MOTION PICTURE PRODUCTION "IF THE
PORTRAYAL DOES NOT TEND TO DISCREDIT THAT ARMED FORCE."  HIS CONVICTION
WAS AFFIRMED BY THE COURT OF APPEALS AND HE FILED A PETITION FOR
CERTIORARI AFTER THE TIME SPECIFIED IN SUPREME COURT RULE 22(2) HAD
EXPIRED.  HELD: 

1.  THE STREET SKIT IN WHICH PETITIONER PARTICIPATED WAS A
"THEATRICAL PRODUCTION" WITHIN THE MEANING OF SEC. 772(F).  PP. 61-62. 

2.  THE WORDS "IF THE PORTRAYAL DOES NOT TEND TO DISCREDIT THAT
ARMED FORCE" IN SEC. 772(F) IMPOSE AN UNCONSTITUTIONAL RESTRAINT ON
FREEDOM OF SPEECH AND MUST BE STRICKEN FROM THE SECTION TO PRESERVE ITS
CONSTITUTIONALITY.  PP. 62-63. 

3.  THE TIME REQUIREMENT OF RULE 22(2) IS NOT JURISDICTIONAL AND MAY
BE WAIVED BY THE COURT.  PP. 63-65. 

414 F.2D 630, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, DANIEL JAY SCHACHT, WAS INDICTED IN A UNITED STATES
DISTRICT COURT FOR VIOLATING 18 U.S.C. 702, WHICH MAKES IT A CRIME FOR
ANY PERSON "WITHOUT AUTHORITY (TO WEAR) THE UNIFORM OR A DISTINCTIVE
PART THEREOF . . . OF ANY OF THE ARMED FORCES OF THE UNITED STATES . .
. ."  /1/  HE WAS TRIED AND CONVICTED BY A JURY, AND ON FEBRUARY 29,
1968, HE WAS SENTENCED TO PAY A FINE OF $250 AND TO SERVE A SIX-MONTH
PRISON TERM, THE MAXIMUM SENTENCE ALLOWABLE UNDER 18 U.S.C. 702.  THERE
IS NO DOUBT THAT SCHACHT DID WEAR DISTINCTIVE PARTS OF THE UNIFORM OF
THE UNITED STATES ARMY /2/  AND THAT HE WAS NOT A MEMBER OF THE ARMED
FORCES.  HE HAS DEFENDED HIS CONDUCT SINCE THE BEGINNING, HOWEVER, ON
THE GROUND THAT HE WAS AUTHORIZED TO WEAR THE UNIFORM BY AN ACT OF
CONGRESS, 10 U.S.C. 772(F), WHICH PROVIDES AS FOLLOWS: 

"WHEN WEARING BY PERSONS NOT ON ACTIVE DUTY AUTHORIZED. 

        .          .          .          . 

"(F) WHILE PORTRAYING A MEMBER OF THE ARMY, NAVY, AIR FORCE, OR
MARINE CORPS, AN ACTOR IN A THEATRICAL OR MOTION-PICTURE PRODUCTION MAY
WEAR THE UNIFORM OF THAT ARMED FORCE IF THE PORTRAYAL DOES NOT TEND TO
DISCREDIT THAT ARMED FORCE."  SCHACHT ARGUED IN THE TRIAL COURT AND IN
THIS COURT THAT HE WORE THE ARMY UNIFORM AS AN "ACTOR" IN A "THEATRICAL
PRODUCTION" PERFORMED SEVERAL TIMES BETWEEN 6:30 AND 8:30 A.M. ON
DECEMBER 4, 1967, IN FRONT OF THE ARMED FORCES INDUCTION CENTER AT
HOUSTON, TEXAS.  THE STREET SKIT IN WHICH SCHACHT WORE THE ARMY UNIFORM
AS A COSTUME WAS DESIGNED, IN HIS VIEW, TO EXPOSE THE EVIL OF THE
AMERICAN PRESENCE IN VIETNAM AND WAS PART OF A LARGER, PEACEFUL ANTIWAR
DEMONSTRATION AT THE INDUCTION CENTER THAT MORNING.  THE COURT OF
APPEALS' OPINION AFFIRMING THE CONVICTION SUMMARIZED THE FACTS
SURROUNDING THE SKIT AS FOLLOWS: 

     "THE EVIDENCE INDICATES THAT THE DEMONSTRATION IN HOUSTON WAS

  PART OF A NATIONALLY COORDINATED MOVEMENT WHICH WAS TO TAKE PLACE

  CONTEMPORANEOUSLY AT SEVERAL PLACES THROUGHOUT THE COUNTRY.  THE

APPELLANTS AND THEIR COLLEAGUES PREPARED A SCRIPT TO BE FOLLOWED

  AT THE INDUCTION CENTER AND THEY ACTUALLY REHEARSED THEIR ROLES

  AT LEAST ONCE PRIOR TO THE APPOINTED DAY BEFORE A STUDENT

  ORGANIZATION CALLED THE 'HAMANISTS.' 

    .          .          .          . 

     "THE SKIT WAS COMPOSED OF THREE PEOPLE.  THERE WAS SCHACHT WHO

  WAS DRESSED IN A UNIFORM AND CAP.  A SECOND PERSON WAS WEARING

 'MILITARY COLORED' COVERALLS.  THE THIRD PERSON WAS OUTFITTED IN

  TYPICAL VIET CONG APPAREL.  THE FIRST TWO MEN CARRIED WATER

  PISTOLS.  ONE OF THEM WOULD YELL, 'BE AN ABLE AMERICAN,' AND THEY

  THEY WOULD SHOOT THE VIET CONG WITH THEIR PISTOLS.  THE PISTOLS

  EXPELLED A RED LIQUID WHICH, WHEN IT STRUCK THE VICTIM, CREATED

  THE IMPRESSION THAT HE WAS BLEEDING.  ONCE THE VICTIM FELL DOWN

  THE OTHER TWO WOULD WALK UP TO HIM AND EXCLAIM, 'MY GOD, THIS IS

  A PREGNANT WOMAN.'  WITHOUT NOTICEABLE VARIATION THIS SKIT WAS

 REENACTED SEVERAL TIMES DURING THE MORNING OF THE

  DEMONSTRATION."  414 F.2D 630, 632. 

        I 

OUR PREVIOUS CASES WOULD SEEM TO MAKE IT CLEAR THAT 18 U.S.C. 702,
MAKING IT AN OFFENSE TO WEAR OUR MILITARY UNIFORMS WITHOUT AUTHORITY
IS, STANDING ALONE, A VALID STATUTE ON ITS FACE.  SEE, E.G., UNITED
STATES V. O'BRIEN, 391 U.S. 367 (1968).  BUT THE GENERAL PROHIBITION OF
18 U.S.C. 702 CANNOT ALWAYS STAND ALONE IN VIEW OF 10 U.S.C. 772, WHICH
AUTHORIZES THE WEARING OF MILITARY UNIFORMS UNDER CERTAIN CONDITIONS
AND CIRCUMSTANCES INCLUDING THE CIRCUMSTANCE OF AN ACTOR PORTRAYING A
MEMBER OF THE ARMED SERVICES IN A "THEATRICAL PRODUCTION."  10 U.S.C.
772(F).  THE GOVERNMENT'S ARGUMENT IN THIS CASE SEEMS TO IMPLY THAT
SOMEHOW WHAT THESE AMATEUR ACTORS DID IN HOUSTON SHOULD NOT BE TREATED
AS A "THEATRICAL PRODUCTION" WITHIN THE MEANING OF SEC. 772(F).  WE ARE
UNABLE TO FOLLOW SUCH A SUGGESTION.  CERTAINLY THEATRICAL PRODUCTIONS
NEED NOT ALWAYS BE PERFORMED IN BUILDINGS OR EVEN ON A DEFINED AREA
SUCH AS A CONVENTIONAL STAGE.  NOR NEED THEY BE PERFORMED BY
PROFESSIONAL ACTORS OR BE HEAVILY FINANCED OR ELABORATELY PRODUCED. 
SINCE TIME IMMEMORIAL, OUTDOOR THEATRICAL PERFORMANCES, OFTEN PERFORMED
BY AMATEURS, HAVE PLAYED AN IMPORTANT PART IN THE ENTERTAINMENT AND THE
EDUCATION OF THE PEOPLE OF THE WORLD.  HERE, THE RECORD SHOWS WITHOUT
DISPUTE THE PREPARATION AND REPEATED PRESENTATION BY AMATEUR ACTORS OF
A SHORT PLAY DESIGNED TO CREATE IN THE AUDIENCE AN UNDERSTANDING OF AND
OPPOSITION TO OUR PARTICIPATION IN THE VIETNAM WAR.  SUPRA, AT 60 AND
THIS PAGE.  IT MAY BE THAT THE PERFORMANCES WERE CRUDE AND AMATEURISH
AND PERHAPS UNAPPEALING, BUT THE SAME THING CAN BE SAID ABOUT MANY
THEATRICAL PERFORMANCES.  WE CANNOT BELIEVE THAT WHEN CONGRESS WROTE
OUT A SPECIAL EXCEPTION FOR THEATRICAL PRODUCTIONS IT INTENDED TO
PROTECT ONLY A NARROW AND LIMITED CATEGORY OF PROFESSIONALLY PRODUCED
PLAYS.  /3/  OF COURSE,WE NEED NOT DECIDE HERE ALL THE QUESTIONS
CONCERNING WHAT IS AND WHAT IS NOT WITHIN THE SCOPE OF SEC. 772(F).  WE
NEED ONLY FIND, AS WE EMPHATICALLY DO, THAT THE STREET SKIT IN WHICH
SCHACHT PARTICIPATED WAS A "THEATRICAL PRODUCTION" WITHIN THE MEANING
OF THAT SECTION. 

THIS BRINGS US TO PETITIONER'S COMPLAINT THAT GIVING FORCE AND
EFFECT TO THE LAST CLAUSE OF SEC. 772(F) WOULD IMPOSE AN
UNCONSTITUTIONAL RESTRAINT ON HIS RIGHT OF FREE SPEECH.  WE AGREE. 
THIS CLAUSE ON ITS FACE SIMPLY RESTRICTS SEC. 772(F)'S AUTHORIZATION TO
THOSE DRAMATIC PORTRAYALS THAT DO NOT "TEND TO DISCREDIT" THE MILITARY,
BUT, WHEN THIS RESTRICTION IS READ TOGETHER WITH 18 U.S.C. 702, IT
BECOMES CLEAR THAT CONGRESS HAS IN EFFECT MADE IT A CRIME FOR AN ACTOR
WEARING A MILITARY UNIFORM TO SAY THINGS DURING HIS PERFORMANCE
CRITICAL OF THE CONDUCT OR POLICIES OF THE ARMED FORCES.  AN ACTOR,
LIKE EVERYONE ELSE IN OUR COUNTRY, ENJOYS A CONSTITUTIONAL RIGHT TO
FREEDOM OF SPEECH, INCLUDING THE RIGHT OPENLY TO CRITICIZE THE
GOVERNMENT DURING A DRAMATIC PERFORMANCE.  THE LAST CLAUSE OF SEC.
772(F) DENIES THIS CONSTITUTIONAL RIGHT TO AN ACTOR WHO IS WEARING A
MILITARY UNIFORM BY MAKING IT A CRIME FOR HIM TO SAY THINGS THAT TEND
TO BRING THE MILITARY INTO DISCREDIT AND DISREPUTE.  IN THE PRESENT
CASE SCHACHT WAS FREE TO PARTICIPATE IN ANY SKIT AT THE DEMONSTRATION
THAT PRAISED THE ARMY, BUT UNDER THE FINAL CLAUSE OF SEC. 772(F) HE
COULD BE CONVICTED OF A FEDERAL OFFENSE IF HIS PORTRAYAL ATTACKED THE
ARMY INSTEAD OF PRAISING IT.  IN LIGHT OF OUR EARLIER FINDING THAT THE
SKIT IN WHICH SCHACHT PARTICIPATED WAS A "THEATRICAL PRODUCTION" WITHIN
THE MEANING OF SEC. 772(F), IT FOLLOWS THAT HIS CONVICTION CAN BE
SUSTAINED ONLY IF HE CAN BE PUNISHED FOR SPEAKING OUT AGAINST THE ROLE
OF OUR ARMY AND OUR COUNTRY IN VIETNAM.  CLEARLY PUNISHMENT FOR THIS
REASON WOULD BE AN UNCONSTITUTIONAL ABRIDGMENT OF FREEDOM OF SPEECH. 
THE FINAL CLAUSE OF SEC. 772(F), WHICH LEAVES AMERICANS FREE TO PRAISE
THE WAR IN VIETNAM BUT CAN SEND PERSONS LIKE SCHACHT TO PRISON FOR
OPPOSING IT, CANNOT SURVIVE IN A COUNTRY WHICH HAS THE FIRST
AMENDMENT.  TO PRESERVE THE CONSTITUTIONALITY OF SEC. 772(F) THAT FINAL
CLAUSE MUST BE STRICKEN FROM THE SECTION. 

        II 

THE GOVERNMENT'S BRIEF AND ARGUMENT SERIOUSLY CONTEND THAT THIS
COURT IS WITHOUT JURISDICTION TO CONSIDER AND DECIDE THE MERITS OF THIS
CASE ON THE GROUND THAT THE PETITION FOR CERTIORARI WAS NOT TIMELY
FILED UNDER RULE 22(2) OF THE RULES OF THIS COURT.  THIS RULE PROVIDES
THAT A PETITION FOR CERTIORARI TO REVIEW A COURT OF APPEALS' JUDGMENT
IN A CRIMINAL CASE "SHALL BE DEEMED IN TIME WHEN . . . FILED WITH THE
CLERK WITHIN THIRTY DAYS AFTER THE ENTRY OF SUCH JUDGMENT."  WE CANNOT
ACCEPT THE VIEW THAT THIS TIME REQUIREMENT IS JURISDICTIONAL AND CANNOT
BE WAIVED BY THE COURT.  RULE 22(2) CONTAINS NO LANGUAGE THAT CALLS FOR
SO HARSH AN INTERPRETATION, AND IT MUST BE REMEMBERED THAT THIS RULE
WAS NOT ENACTED BY CONGRESS BUT WAS PROMULGATED BY THIS COURT UNDER
AUTHORITY OF CONGRESS TO PRESCRIBE RULES CONCERNING THE TIME
LIMITATIONS FOR TAKING APPEALS AND APPLYING FOR CERTIORARI IN CRIMINAL
CASES.  SEE 18 U.S.C. 3772; RULE 37, FED. RULES CRIM. PROC. THE
PROCEDURAL RULES ADOPTED BY THE COURT FOR THE ORDERLY TRANSACTION OF
ITS BUSINESS ARE NOT JURISDICTIONAL AND CAN BE RELAXED BY THE COURT IN
THE EXERCISE OF ITS DISCRETION WHEN THE ENDS OF JUSTICE SO REQUIRE. 
THIS DISCRETION HAS BEEN EXPRESSLY DECLARED IN SEVERAL OPINIONS OF THE
COURT.  SEE TAGLIANETTI V. UNITED STATES, 394 U.S. 316, N. 1 (1969);
HEFLIN V. UNITED STATES, 358 U.S. 415, 418 N. 7 (1959).  SEE ALSO R.
STERN & E. GRESSMAN, SUPREME COURT PRACTICE 242-244 (4TH ED. 1969), AND
THE CASES CITED THEREIN.  IT IS TRUE THAT THE TAGLIANETTI AND HEFLIN
CASES DEALT WITH THIS TIME QUESTION ONLY IN FOOTNOTES.  BUT THIS IS NO
REASON TO DISREGARD THEIR HOLDINGS AND IN FACT INDICATES THE COURT
DEEMED A FOOTNOTE ADEQUATE TREATMENT TO GIVE THE ISSUE. 

WHEN THE PETITION FOR CERTIORARI WAS FILED IN THIS CASE IT WAS
ACCOMPANIED BY A MOTION, SUPPORTED BY AFFIDAVITS, ASKING THAT WE GRANT
CERTIORARI DESPITE THE FACT THAT THE PETITION WAS FILED 101 DAYS AFTER
THE APPROPRIATE PERIOD FOR FILING THE PETITION HAD EXPIRED.  AFFIDAVITS
FILED WITH THE MOTION, NOT DENIED OR CHALLENGED BY THE GOVERNMENT,
PRESENT FACTS SHOWING THAT PETITIONER HAD ACTED IN GOOD FAITH AND THAT
THE DELAY IN FILING THE PETITION FOR CERTIORARI WAS BROUGHT ABOUT BY
CIRCUMSTANCES LARGELY BEYOND HIS CONTROL.  WITHOUT DETAILING THESE
CIRCUMSTANCES, IT IS SUFFICIENT TO NOTE HERE THAT AFTER CONSIDERATION
OF THE MOTION AND AFFIDAVITS THIS COURT ON DECEMBER 15, 1969, GRANTED
THE MOTION, THREE JUSTICES DISSENTING.  THE DECISION OF THIS COURT
WAIVING THE TIME DEFECT AND PERMITTING THE UNTIMELY FILING OF THE
PETITION WAS THUS MADE SEVERAL MONTHS AGO, AND NO NEW FACTS WARRANTING
A RECONSIDERATION OF THAT DECISION HAVE BEEN PRESENTED TO US. 

FOR THE REASONS STATED IN PARTS I AND II OF THIS OPINION, THE
JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  TITLE 18 U.S.C. 702 PROVIDES AS FOLLOWS: 

"WHOEVER, IN ANY PLACE WITHIN THE JURISDICTION OF THE UNITED STATES
OR IN THE CANAL ZONE, WITHOUT AUTHORITY, WEARS THE UNIFORM OR A
DISTINCTIVE PART THEREOF OR ANYTHING SIMILAR TO A DISTINCTIVE PART OF
THE UNIFORM OF ANY OF THE ARMED FORCES OF THE UNITED STATES, PUBLIC
HEALTH SERVICE OR ANY AUXILIARY OF SUCH, SHALL BE FINED NOT MORE THAN
$250 OR IMPRISONED NOT MORE THAN SIX MONTHS, OR BOTH." 

/2/  SCHACHT WORE A BLOUSE OF THE TYPE CURRENTLY AUTHORIZED FOR ARMY
ENLISTED MEN WITH A SHOULDER PATCH DESIGNATING SERVICE IN EUROPE.  THE
BUTTONS ON HIS BLOUSE WERE OF THE OFFICIAL ARMY DESIGN.  ON HIS HEAD
SCHACHT WORE AN OUTMODED MILITARY HAT.  AFFIXED TO THE HAT IN AN
INVERTED POSITION WAS THE EAGLE INSIGNIA CURRENTLY WORN ON THE HATS OF
ARMY OFFICERS. 

/3/  THE PRECISE LANGUAGE OF 10 U.S.C. 772(F) DERIVES FROM THE 1956
REVISION OF TITLES 10 AND 32, WHICH WAS UNDERTAKEN FOR THE PURPOSE OF
COMBINING LAWS AFFECTING THE ARMED FORCES, ELIMINATING DUPLICATE
PROVISIONS, AND CLARIFYING STATUTORY LANGUAGE.  AT THAT TIME THE PHRASE
"ACTOR IN A THEATRICAL OR MOTION-PICTURE PRODUCTION" WAS SUBSTITUTED
FOR THE PREVIOUS PHRASE "IN ANY PLAYHOUSE OR THEATER OR IN MOVING
PICTURE FILMS WHILE ACTUALLY ENGAGED IN REPRESENTING THEREIN A MILITARY
. . . CHARACTER . . . ."  39 STAT. 216-217.  ALTHOUGH THE 1956 REVISION
AND CODIFICATION WERE NOT IN GENERAL INTENDED TO MAKE SUBSTANTIVE
CHANGES, CHANGES WERE MADE FOR THE PURPOSE OF CLARIFYING AND UPDATING
LANGUAGE.  THE SHIFT TO THE PRESENT VERSION OF SEC. 772(F) CLEARLY
REFLECTS AN INTENT TO MOVE TO BROADER, MORE FLEXIBLE LANGUAGE WHICH,
FOR EXAMPLE, WOULD INCLUDE TELEVISION AS WELL AS OTHER TYPES OF
THEATRICAL PRODUCTIONS WHEREVER PRESENTED.  H.R. REP. NO. 970, 84TH
CONG., 1ST SESS., 8; STATEMENTS OF SENATORS O'MAHONEY AND WILEY, 102
CONG.REC.  13944, 13953 (JULY 23, 1956). 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN PART I OF THE COURT'S OPINION.  WITH RESPECT TO PART II, I
AGREE WITH THE COURT'S REJECTION OF THE GOVERNMENT'S "JURISDICTIONAL"
CONTENTION PREMISED ON THE ULTIMELY FILING OF THE PETITION FOR
CERTIORARI.  IN MY VIEW, HOWEVER, THAT CONTENTION DESERVES FULLER
CONSIDERATION THAN HAS BEEN ACCORDED IT IN THE COURT'S OPINION. 

        I 

THE COURT'S OPINION DOES NOT FULLY COME TO GRIPS WITH THE SOLICITOR
GENERAL'S POSITION.  THE COURT REJECTS THE ARGUMENT THAT UNTIMELINESS
UNDER RULE 22(2) SHOULD BE GIVEN JURISDICTIONAL EFFECT BY STATING, IN
PART, THAT THE RULE "CONTAINS NO LANGUAGE THAT CALLS FOR SO HARSH AN
INTERPRETATION."  IN THIS REGARD, HOWEVER, THE TIME LIMITATION FOUND IN
RULE 22(2) IS NO DIFFERENT FROM THOSE ESTABLISHED BY STATUTE; /1/
NEITHER MAKES EXPLICIT REFERENCE TO WAIVERS OF THE LIMITATION.  IN THE
ABSENCE OF LANGUAGE PROVIDING FOR WAIVER, WE HAVE WITHOUT EXCEPTION
TREATED THE STATUTORY LIMITATIONS AS JURISDICTIONAL.  /2/  THE
SOLICITOR GENERAL ASKS WHY WE SHOULD NOT DO THE SAME UNDER OUR RULE. 
THIS ISSUE, I.E., WHY WE TREAT TIME REQUIREMENTS UNDER OUR RULE
DIFFERENTLY FROM THE REQUIREMENTS IMPOSED BY STATUTE, IS HARDLY
ACKNOWLEDGED IN THE COURT'S OPINION.  MOREOVER, ALTHOUGH IT IS TRUE
THAT TAGLIANETTI V. UNITED STATES, 394 U.S. 316, N. 1 (1969), AND
HEFLIN V. UNITED STATES, 358 U.S. 415, 418 N. 7 (1959), HELD THAT THE
COURT COULD WAIVE UNTIMELINESS UNDER OUR RULE, NEITHER OPINION
EXPLAINED WHY THIS IS SO.  THE SOLICITOR GENERAL DOES NOT BELITTLE
THOSE TWO CASES MERELY BECAUSE EACH DEALT WITH THE PROBLEM IN A
FOOTNOTE, BUT RATHER URGES THAT THEY ARE INCONCLUSIVE BECAUSE NEITHER
GAVE REASONS FOR THE CONCLUSION.  /3/             II 

MY OWN ANALYSIS OF THE ISSUE PRESENTED HERE BEGINS WITH AN
EXAMINATION OF THE STATUTORY AUTHORITY FOR RULE 22(2).  THIS IS FOUND
IN WHAT IS NOW 18 U.S.C. 3772, /4/  A PROVISION AUTHORIZING THIS COURT
TO PRESCRIBE POST-VERDICT RULES OF PRACTICE AND PROCEDURE IN CRIMINAL
CASES.  SECTION 3772 SPECIFICALLY DELEGATES TO THIS COURT THE POWER TO
PROMULGATE RULES PRESCRIBING "THE TIMES FOR AND MANNER OF TAKING
APPEALS (TO THE COURTS OF APPEALS) AND APPLYING FOR WRITS OF CERTIORARI
. . . ."  WHILE THE LEGISLATIVE HISTORY OF THIS PROVISION EVINCES A
CONGRESSIONAL CONCERN OVER UNDUE DELAYS IN THE DISPOSITION OF CRIMINAL
CASES, /5/  THE BROAD TERMS OF THE STATUTORY LANGUAGE, AS WELL AS WHAT
WAS WRITTEN IN THE COMMITTEE REPORTS, /6/  CONVINCE ME THAT CONGRESS'
PURPOSE WAS TO GIVE THIS COURT THE FREEDOM TO DECIDE WHAT TIME LIMITS
SHOULD APPLY. 

UNDER THE UNQUALIFIED DELEGATION FOUND IN SEC. 3772, I HAVE NO
DOUBTS CONCERNING THIS COURT'S AUTHORITY TO PROMULGATE A RULE THAT
REQUIRED CERTIORARI PETITIONS TO BE FILED WITHIN 30 DAYS OF THE
JUDGMENT BELOW BUT THAT EXPRESSLY PROVIDED THAT THIS REQUIREMENT COULD
BE WAIVED FOR GOOD CAUSE SHOWN, IN ORDER TO AVOID UNFAIRNESS TO
EXTRAORDINARY CASES.  I ALSO THINK THE COURT MIGHT PROMULGATE A RULE
THAT EXPRESSLY PROVIDED THAT UNTIMELINESS COULD NOT BE WAIVED EVEN FOR
"EXCUSABLE NEGLECT"-- IN OTHER WORDS A "JURISDICTIONAL RULE."  /7/ 

RULE 22(2), AS PROMULGATED, CONTAINS NO EXPRESS PROVISION ALLOWING
FOR WAIVER.  IT IS CLEAR FROM PRIOR DECISIONS THAT THE COURT HAS
INTERPRETED THE RULE TO ALLOW FOR SUCH A WAIVER, HOWEVER.  /8/  SO
INTERPRETED, I FIND RULE 22(2) NO LESS AUTHORIZED UNDER 18 U.S.C. 3772
THAN WOULD BE A RULE THAT BY ITS TERMS PROVIDED EXPRESSLY FOR THE
POSSIBILITY OF A WAIVER. 

NOR DO I FIND IT AT ALL ANOMALOUS THAT THIS COURT ON OCCASION WAIVES
THE TIME LIMITATIONS IMPOSED BY ITS OWN RULES AND YET TREATS TIME
REQUIREMENTS IMPOSED BY STATUTE AS JURISDICTIONAL.  AS A MATTER OF
STATUTORY INTERPRETATION, THE COURT HAS NOT PRESUMED THE RIGHT TO
EXTEND TIME LIMITS SPECIFIED IN STATUTES WHERE THERE IS NO INDICATION
OF A CONGRESSIONAL PURPOSE TO AUTHORIZE THE COURT TO DO SO.  BECAUSE WE
CANNOT "WAIVE" CONGRESSIONAL ENACTMENTS, THE STATUTORY TIME LIMITS ARE
TREATED AS JURISDICTIONAL.  ON THE OTHER HAND, FOR THE TIME REQUIREMENT
OF RULE 22(2), ESTABLISHED UNDER A BROAD STATUTORY DELEGATION, IT IS
APPROPRIATE TO APPLY THE "GENERAL PRINCIPLE" THAT "'(IT IS ALWAYS
WITHIN THE DISCRETION OF A COURT OR AN ADMINISTRATIVE AGENCY TO RELAX
OR MODIFY ITS PROCEDURAL RULES ADOPTED FOR THE ORDERLY TRANSACTION OF
BUSINESS BEFORE IT WHEN IN A GIVEN CASE THE ENDS OF JUSTICE REQUIRE
IT,'" AMERICAN FARM LINES V. BLACK BALL, 397 U.S. 532, 539 (1970),
QUOTING FROM NLRB V. MONSANTO CHEMICAL CO., 205 F.2D 763, 764 (C.A. 8TH
CIR. 1953). 

III 

ALTHOUGH I THEREFORE CONCLUDE THAT THIS COURT POSSESSES THE
DISCRETION TO WAIVE THE TIME REQUIREMENTS OF RULE 22(2), IT MUST BE
RECOGNIZED THAT SUCH REQUIREMENTS ARE ESSENTIAL TO AN ORDERLY APPELLATE
PROCESS.  CONSEQUENTLY, I BELIEVE OUR DISCRETION MUST BE EXERCISED
SPARINGLY, AND ONLY WHEN AN ADEQUATE REASON EXISTS TO EXCUSE
NONCOMPLIANCE WITH OUR RULES.  IN THE PRESENT CASE, I AGREE WITH THE
COURT THAT PETITIONER HAS ADEUATELY EXPLAINED WHY HE FAILED TO MEET OUR
TIME REQUIREMENTS.  ON THIS BASIS I CONCUR IN PART II OF THE COURT'S
OPINION. 

/1/ COMPARE RULE 22(2) WITH, E.G., 28 U.S.C. 2101(B), (C).  BOTH THE
RULE AND THIS STATUTE PROVIDE FOR LIMITED EXTENSIONS OF TIME.  THERE
WAS, HOWEVER, NO EXTENSION IN THE CASE BEFORE US. 

/2/  E.G., MATTON STEAMBOAT CO., INC. V. MURPHY, 319 U.S. 412 (1943);
DEPARTMENT OF BANKING V. PINK, 317 U.S. 264 (1942); CITIZENS BANK V.
OPPERMAN, 249 U.S. 448 (1919). 

/3/  THE GOVERNMENT RELIES ON LANGUAGE IN UNITED STATES EX REL. COY
V. UNITED STATES, 316 U.S. 342 (1942), A CASE NOT CITED BY THE COURT,
AS SUPPORT FOR ITS CLAIM THAT THE 30-DAY LIMIT ESTABLISHED BY RULE WAS
"JURISDICTIONAL."  THE ISSUE IN THAT CASE WAS WHICH TIME LIMIT-- THE 30
DAY LIMIT IMPOSED BY WHAT WAS THEN RULE XI OR INSTEAD THE 90-DAY LIMIT
OF THE GENERAL STATUTORY PROVISION-- APPLIED TO A PETITION FOR
CERTIORARI FOR REVIEW OF A CIRCUIT COURT AFFIRMANCE OF A DISTRICT COURT
DENIAL OF A MOTION TO CORRECT SENTENCE IN A CRIMINAL CASE.  AFTER
NOTING THAT THE PETITION WAS FILED MORE THAN 30 DAYS AFTER THE JUDGMENT
OF THE COURT OF APPEALS, THE COURT SAID:  "IF THE JUDGMENT OF THE COURT
OF APPEALS IS ONE TO WHICH RULE XI APPLIES, THE PETITION FOR CERTIORARI
WAS FILED TOO LATE AND WE ARE WITHOUT JURISDICTION," ID., AT 344.  IN
DISPOSING OF THE CASE, HOWEVER, THE OPINION SIMPLY STATED THAT THE
"WRIT WILL . . . BE DISMISSED FOR FAILURE TO COMPLY WITH RULE XI," ID.,
AT 346, NOT FOR WANT OF JURISDICTION.  IN ANY EVENT, THE COURT IN COY
DID NOT FOCUS ON THE ISSUE OF WHETHER FOR GOOD CAUSE RULE XI MIGHT BE
WAIVED, THEREBY REMOVING A TIME LIMITATION THAT OTHERWISE MIGHT BE
TERMED JURISDICTIONAL. 

/4/  18 U.S.C. 3772 DERIVES FROM 47 STAT. 904 (1933) AND 48 STAT.
399 (1934).  BEFORE THESE ENACTMENTS, CERTIORARI IN CRIMINAL CASES WAS
GOVERNED BY THE GENERAL THREE-MONTH TIME LIMITATION PROVIDED BY SEC.
8(A) OF THE JUDICIARY ACT OF FEBRUARY 13, 1925, 43 STAT. 940. 

/5/  SEE H.R. REP. NO. 2047, 72D CONG., 2D SESS., 2 (1933); S. REP.
NO. 257, 73D CONG., 2D SESS., 1 (1934). 

/6/  SEE H.R. REP. NO. 2047, SUPRA, AT 2 ("A STATUTORY CODE OF
PROCEDURE IS NOT FLEXIBLE; CHANGES MADE DESIRABLE BY EXPERIENCE CAN NOT
BE PROMPTLY MADE.  THE OVERWHELMING WEIGHT OF OPINION AMONG JUDGES AND
LAWYERS IS THAT MATTERS OF PRACTICE AND PROCEDURE MAY BETTER BE
CONTROLLED BY RULE THAN BY STATUTE."). 

/7/  SEE UNITED STATES V. ROBINSON, 361 U.S. 220 (1960), WHERE WE
HELD THAT UNDER THE FEDERAL RULES OF CRIMINAL PROCEDURE THE COURT OF
APPEALS COULD NOT ENLARGE THE TIME FOR FILING AN APPEAL EVEN THOUGH IT
HAS FOUND "EXCUSABLE NEGLECT."  THE COURT THOUGHT, INTER ALIA, THAT
TIME EXTENSIONS WERE INCONSISTENT WITH THE EXPRESS LANGUAGE OF RULE
45(B), AND THE "DELIBERATE INTENTION" OF ITS DRAFTERS. 

IN THAT CASE, THE COURT DECIDED THAT THE "CONFLICTING
CONSIDERATIONS" IN FAVOR OF OR AGAINST AN "EXCUSABLE-NEGLECT" PROVISION
SHOULD BE "RESOLVED THROUGH THE RULE-MAKING PROCESS AND NOT BY JUDICIAL
DECISION," GIVEN THE RATHER CLEAR INDICATIONS FROM THE LANGUAGE AND
BACKGROUND OF THE EXISTING RULE THAT THE OMISSION HAD BEEN DELIBERATE. 
ALTHOUGH THE GOVERNMENT RELIES HEAVILY ON ROBINSON HERE, NEITHER THE
LANGUAGE NOR THE BACKGROUND OF RULE 22(2) INDICATES A "DELIBERATE
INTENTION" TO PRECLUDE WAIVER. 

/8/  SEE, E.G., HEFLIN V. UNITED STATES, SUPRA; TAGLIANETTI V.
UNITED STATES, SUPRA. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
STEWART JOIN, CONCURRING IN THE RESULT. 

I AGREE THAT CONGRESS CANNOT CONSTITUTIONALLY DISTINGUISH BETWEEN
THOSE THEATRICAL PERFORMANCES THAT DO AND THOSE THAT DO NOT "TEND TO
DISCREDIT" THE MILITARY, IN AUTHORIZING PERSONS NOT ON ACTIVE DUTY TO
WEAR A UNIFORM.  I DO NOT AGREE, HOWEVER, WITH THE COURT'S CONCLUSION
THAT AS A MATTER OF LAW PETITIONER MUST BE FOUND TO HAVE BEEN ENGAGED
IN A "THEATRICAL PRODUCTION" WITHIN THE MEANING OF 10 U.S.C. 772(F). 
THAT ISSUE, IT SEEMS TO ME, IS PROPERLY LEFT TO THE DETERMINATION OF
THE JURY. 

THE UNITED STATES HAS ARGUED THAT THE EXCEPTION FOR "THEATRICAL
PRODUCTIONS" MUST BE LIMITED TO PERFORMANCES IN A SETTING EQUIVALENT TO
A PLAYHOUSE OR THEATER WHERE OBSERVERS WILL NECESSARILY BE AWARE THAT
THEY ARE WATCHING A MAKE-BELIEVE PERFORMANCE.  UNDER THIS
INTERPRETATION, THE GOVERNMENT SUGGESTS, PETITIONER MUST BE FOUND AS A
MATTER OF LAW NOT TO HAVE BEEN ENGAGED IN A "THEATRICAL PRODUCTION";
HENCE, HIS CONVICTION FOR UNAUTHORIZED WEARING OF THE UNIFORM IS LAWFUL
WITHOUT REGARD TO THE VALIDITY OF THE "TEND TO DISCREDIT" PROVISO TO
SEC. 772(F).  THE COURT, ON THE OTHER HAND, WHILE REFUSING TO ASSAY A
DEFINITION OF THE STATUTORY LANGUAGE, FLATLY DECLARES THAT UNDER ANY
INTERPRETATION, CONGRESS COULD NOT POSSIBLY HAVE MEANT TO EXCLUDE
PETITIONER'S "STREET SKIT" FROM THE CLASS OF "THEATRICAL PRODUCTIONS." 
NEITHER EXTREME, IN MY VIEW, IS CORRECT.  THE CRITICAL QUESTION IN
DECIDING WHAT IS TO COUNT AS A "THEATRICAL PRODUCTION" OUGHT TO BE
WHETHER OR NOT, CONSIDERING ALL THE CIRCUMSTANCES OF THE PERFORMANCE,
AN ORDINARY OBSERVER WOULD HAVE THOUGHT HE WAS SEEING A FICTITIOUS
PORTRAYAL RATHER THAN A PIECE OF REALITY.  AND, ALTHOUGH THE JUDGE'S
INSTRUCTIONS HERE DID NOT PRECISELY REFLECT THIS INTERPRETATION, THIS
QUESTION SEEMS EMINENTLY SUITED TO RESOLUTION BY THE JURY. 

UNDER PROPER INSTRUCTIONS, THEN, A JURY COULD HAVE CONCLUDED THAT NO
THEATRICAL PRODUCTION WAS INVOLVED, IN WHICH CASE THE VERDICT SHOULD BE
SUSTAINED.  HOWEVER, THE JUDGE'S INSTRUCTIONS ALSO PERMITTED CONVICTION
ON A FINDING THAT PETITIONER WAS ENGAGED IN A THEATRICAL PRODUCTION,
BUT THAT THE PRODUCTION TENDED TO DISCREDIT THE MILITARY.  SEE APP. 51
54.  SINCE THE GENERAL VERDICT DOES NOT DISCLOSE WHICH OF THESE
FINDINGS-- ONLY ONE OF WHICH CAN CONSTITUTIONALLY ENTAIL CONVICTION--
WAS THE ACTUAL FINDING, THE CONVICTION MUST OF COURSE BE REVERSED. 
STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931).  I THUS JOIN THE JUDGMENT
OF REVERSAL BUT FIND IT NEITHER NECESSARY NOR CORRECT TO HOLD THAT
PETITIONER'S "THEATRICS" PERFORCE AMOUNTED TO A "THEATRICAL
PRODUCTION." 

DAVID H. BERG ARGUED THE CAUSE FOR PETITIONER, PRO HAC VICE.  WITH
HIM ON THE BRIEF WAS CHRIS DIXIE. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON, JOSEPH J.
CONNOLLY, BEATRICE ROSENBERG, AND SIDNEY M. GLAZER. 
..END :














MONKS V. NEW JERSEY, 398 U.S. 71 


       MONKS V. NEW JERSEY. 

        CERTIORARI TO THE SUPERIOR COURT OF NEW JERSEY. 

        NO. 127.  ARGUED FEBRUARY 26, 1970-- DECIDED MAY 25, 1970. 


CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 

PER CURIAM. 

HAVING SCRUTINIZED THE RECORD AND CONSIDERED THE BRIEFS AND ORAL
ARGUMENTS SUBMITTED ON BOTH SIDES, WE ARE SATISFIED THAT PETITIONER'S
CLAIM OF COERCION RESPECTING HIS CONFESSION, GIVEN BY HIM OVER 12 YEARS
AGO UPON HIS APPREHENSION AS AN ALLEGED JUVENILE DELINQUENT, DOES NOT
MERIT THE PLENARY REVIEW THAT WE THOUGHT IT MIGHT DESERVE AT THE TIME
PETITIONER'S PRO SE PETITION FOR CERTIORARI WAS GRANTED.  395 U.S.
903.  THE OTHER CLAIMS TENDERED IN SUCH PETITION FARE NO BETTER. 

THE FURTHER CLAIM ADVANCED BY PETITIONER'S APPOINTED COUNSEL IN THIS
COURT RESPECTING THE ALLEGED UNCONSTITUTIONAL APPLICATION OF N.J. STAT.
ANN. SEC. 2A:4-37(B) HAS BEEN RAISED FOR THE FIRST TIME UPON THIS WRIT
AND THE STATE COURTS HAVE HAD NO OPPORTUNITY TO PASS UPON IT. 

ACCORDINGLY WE CONCLUDE THAT THE WRIT OF CERTIORARI SHOULD BE
DISMISSED AS IMPROVIDENTLY GRANTED, WITHOUT PREJUDICE TO ANY FURTHER
APPROPRIATE PROCEEDINGS BELOW. 

              IT IS SO ORDERED. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

PETITIONER, A 15-YEAR-OLD BOY, WAS ARRESTED AT 1 O'CLOCK IN THE
MORNING OF FEBRUARY 16, 1957, REMOVED TO THE POLICE STATION, AND
QUESTIONED BY DETECTIVES FOR SEVERAL HOURS ABOUT TWO PURSE-SNATCHING
INCIDENTS.  HE WAS THEN HELD IN CONFINEMENT IN THE CHILDREN'S SHELTER
FOR 10 DAYS DURING WHICH TIME HE WAS QUESTIONED AT LEAST THREE TIMES BY
TWO DETECTIVES IN THE PRESENCE OF A JUVENILE PROBATION OFFICER. 
FURTHER QUESTIONING BEGAN ON OTHER CRIMES INCLUDING TWO MURDERS IN THE
SAME AREA AS THE PURSE SNATCHINGS. 

DURING THE ENTIRE 10-DAY PERIOD THIS 15-YEAR-OLD BOY WAS WITHOUT
ADVICE OF HIS PARENTS, LAWYER, OR FRIENDS.  INDEED, HIS MOTHER FIRST
LEARNED HE WAS IN CUSTODY AFTER HE CONFESSED TO THE TWO MURDERS. 
DURING THE ENTIRE 10-DAY PERIOD PETITIONER WAS NEVER TOLD HE HAD A
RIGHT TO REMAIN SILENT, OR TO REFUSE TO ANSWER THE QUESTIONS BY THE TWO
DETECTIVES. 

THE END CAME ON FEBRUARY 26, 1957.  PETITIONER AROSE AT 7 O'CLOCK IN
THE MORNING, QUESTIONING BEGAN AT 10 O'CLOCK AND CONTINUED OFF AND ON
FOR 15 HOURS BEFORE THE CONFESSION WAS TYPED.  DURING THIS PERIOD HE
WAS MOVED FROM THE CHILDREN'S SHELTER TO THE COURTHOUSE, THE GRAND JURY
ROOM, AND AN ADJACENT ROOM.  HE WAS GIVEN SEVERAL LIE-DETECTOR TESTS
AND CONFRONTED WITH ALLEGED WITNESSES.  HE HAD NO SLEEP.  HE WAS GIVEN
SANDWICHES FOR HIS LUNCH AND DINNER. 

CERTAINLY, SUCH TREATMENT SO CLEARLY VIOLATES THE HOLDINGS OF HALEY
V. OHIO, 332 U.S. 596 (1948); CULOMBE V. CONNECTICUT, 367 U.S. 568
(1961); HAYNES V. WASHINGTON, 373 U.S. 503 (1963); AND GREENWALD V.
WISCONSIN, 390 U.S. 519 (1968), AS TO REQUIRE A REVERSAL IN THIS CASE. 

ANTHONY G. ARMSTERDAM, BY APPOINTMENT OF THE COURT, 395 U.S. 942,
ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WAS MICHAEL
MELTSNER. 

ARCHIBALD KREIGER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS JOHN G. THEVOS. 
..END :




DANIEL V. GOLIDAY, 398 U.S. 73 


       DANIEL, DIRECTOR, COOK COUNTY DEPARTMENT OF PUBLIC AID, ET

           AL. V. GOLIDAY ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS. 

        NO. 1211.  DECIDED MAY 25, 1970. 


DISTRICT COURT SHOULD CONSIDER BEARING OF GOLDBERG V. KELLY, 397 U.S.
254, AND WHEELER V. MONTGOMERY, 397 U.S. 280, ON QUESTION OF
ENTITLEMENT OF WELFARE RECIPIENTS TO NOTICE AND HEARING BEFORE
REDUCTION OF BENEFITS. 

305 F.SUPP.  1224, VACATED AND REMANDED. 

PER CURIAM. 

THE COURT BELOW HAS HELD THAT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT REQUIRES A STATE TO PROVIDE A RECIPIENT OF PUBLIC
WELFARE BENEFITS WITH NOTICE AND A HEARING PRIOR TO "TERMINATION,
SUSPENSION, OR REDUCTION" OF BENEFITS.  THIS COURT'S SUBSEQUENT
DECISIONS IN GOLDBERG V. KELLY, 397 U.S. 254, AND WHEELER V.
MONTGOMERY, 397 U.S. 280, DECIDED MARCH 23, 1970, DEALT ONLY WITH
TERMINATION AND SUSPENSION, NOT REDUCTION, OF BENEFITS.  WE THINK THAT
THE BEARING OF THOSE DECISIONS ON THE TREATMENT OF BENEFIT REDUCTIONS
SHOULD BE DETERMINED IN THE FIRST INSTANCE BY THE DISTRICT COURT ON A
RECORD DEVELOPED BY THE PARTIES WITH SPECIFIC ATTENTION TO THAT ISSUE. 
ACCORDINGLY, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE STEWART
DISSENT. 
..END :













NASH V. UNITED STATES, 398 U.S. 1 


       NASH ET AL. V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT. 

        NO. 678.  ARGUED APRIL 21, 1970-- DECIDED MAY 18, 1970. 


PETITIONERS WERE MEMBERS OF A PARTNERSHIP THAT REPORTED ITS INCOME ON
THE ACCRUAL METHOD AND USED THE RESERVE METHO OF ACCOUNTING FOR BAD
DEBTS PROVIDED IN SEC. 166(C) OF THE INTERNAL REVENUE CODE, PERMITTING
A TAXPAYER TO TAKE A CURRENT DEDUCTION FOR THE AMOUNT OF ACCOUNTS
RECEIVABLE THAT IT IS ESTIMATED WILL BECOME WORTHLESS IN LATER YEARS. 
PETITIONERS FORMED CORPORATIONS AND TRANSFERRED PARTNERSHIP ASSETS,
INCLUDING THE NET WORTH OF THE ACCOUNTS RECEIVABLE (THE FACE VALUE LESS
THE AMOUNT OF THE RESERVE), TO THE CORPORATIONS IN EXCHANGE FOR THE
CORPORATIONS' STOCK.  THE TRANSFER WAS WITHIN THE TERMS OF SEC. 351 OF
THE CODE, WHICH PROVIDES THAT NO GAIN OR LOSS SHALL BE RECOGNIZED IF
PROPERTY IS TRANSFERRED TO A CORPORATION IN EXCHANGE FOR STOCK, IF
AFTER THE EXCHANGE THE TRANSFERORS ARE IN CONTROL OF THE CORPORATION. 
THE COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THE PARTNERSHIP
SHOULD HAVE INCLUDED IN INCOME THE AMOUNT OF THE BAD DEBT RESERVE
BECAUSE THE PARTNERSHIP NO LONGER NEEDED THE RESERVE ACCOUNT. 
PETITIONERS PAID THE DEFICIENCIES ASSESSED AND SUED FOR REFUNDS.  THE
DISTRICT COURT ALLOWED RECOVERY BUT THE COURT OF APPEALS REVERSED. 
HELD:  THE SO-CALLED TAX BENEFIT RULE, THAT RECOVERY OF AN ITEM THAT
HAS PRODUCED AN INCOME TAX BENEFIT IN A PRIOR YEAR IS TO BE ADDED TO
INCOME IN THE YEAR OF RECOVERY, IS NOT APPLICABLE HERE AS THE
PARTNERSHIP, ALTHOUGH ITS BUSINESS TERMINATED AND IT HAD NO "NEED" FOR
THE RESERVE, RECEIVED NO GAIN AS A RESULT OF THE TRANSACTION AND THERE
WAS THUS NO "RECOVERY" OF THE BENEFIT OF THE BAD DEBT RESERVE.  PP. 3
5. 

414F.2D 627, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE PARTNERS OPERATING EIGHT FINANCE OFFICES IN
ALABAMA.  THE PARTNERSHIP REPORTED ITS INCOME ON THE ACCRUAL METHOD OF
ACCOUNTING AND INSTEAD OF DEDUCTING BAD DEBTS WITHIN THE TAXABLE YEAR
AS PERMITTED BY SEC. 166(A) OF THE INTERNAL REVENUE CODE OF 1954 IT
USED THE RESERVE METHOD OF ACCOUNTING AS PERMITTED BY SEC. 166(C). 
UNDER THE RESERVE METHOD OF ACCOUNTING A TAXPAYER INCLUDES IN HIS
INCOME THE FULL FACE AMOUNT OF A RECEIVABLE ON ITS CREATION AND ADJUSTS
AT THE END OF EACH TAXABLE YEAR THE RESERVE ACCOUNT SO THAT IT EQUALS
THAT PORTION OF CURRENT ACCOUNTS RECEIVABLE THAT IS ESTIMATED TO BECOME
WORTHLESS IN SUBSEQUENT YEARS.  ANY ADDITIONS NECESSARY TO INCREASE THE
RESERVE ARE CURRENTLY DEDUCTIBLE.  WHEN AN ACCOUNT RECEIVABLE BECOMES
WORTHLESS DURING THE YEAR, THE RESERVE ACCOUNT IS DECREASED AND NO
ADDITIONAL BAD DEBT DEDUCTION IS ALLOWED.  AS OF MAY 31, 1960, THE
PARTNERSHIP BOOKS SHOWED ACCOUNTS RECEIVABLE OF $486,853.69 AND A
RESERVE FOR BAD DEBTS OF $73,028.05. 

ON JUNE 1, 1960, PETITIONERS FORMED EIGHT NEW CORPORATIONS AND
TRANSFERRED THE ASSETS OF THE EIGHT PARTNERSHIP OFFICES, INCLUDING THE
ACCOUNTS RECEIVABLE, TO THE CORPORATIONS IN EXCHANGE FOR SHARES OF THE
CORPORATIONS-- A TRANSFER THAT CONCEDEDLY PROVIDED NO GAIN OR LOSS
UNDER SEC. 351 OF THE CODE. 

THE COMMISSIONER DETERMINED THAT THE PARTNERSHIP SHOULD HAVE
INCLUDED IN INCOME THE AMOUNT OF THE BAD DEBT RESERVE ($73,028.05)
APPLICABLE TO THE ACCOUNTS RECEIVABLE THAT HAD BEEN TRANSFERRED.  TAX
DEFICIENCIES WERE COMPUTED; AND PETITIONERS, HAVING PAID THEM, BROUGHT
THIS SUIT FOR REFUNDS.  THE DISTRICT COURT ALLOWED RECOVERY AND THE
COURT OF APPEALS REVERSED, 414 F.2D 627.  WE GRANTED THE PETITION FOR
CERTIORARI TO RESOLVE THE CONFLICT BERWEEN THE FIFTH AND THE NINTH
CIRCUITS /1/  ON THIS QUESTION OF LAW.  396 U.S. 1000.  WE SHARE THE
VIEW OF THE NINTH CIRCUIT AND REVERSE THE PRESENT JUDGMENT. 

THERE IS NO PROVISION OF THE CODE THAT DEALS PRECISELY WITH THIS
QUESTION.  BUT THE COMMISSIONER'S BASIC PREMISE /2/  RESTS ON THE SO
CALLED TAX BENEFIT RULE, VIZ., THAT A RECOVERY OF AN ITEM THAT HAS
PRODUCED AN INCOME TAX BENEFIT IN A PRIOR YEAR IS TO BE ADDED TO INCOME
IN THE YEAR OF RECOVERY.  /3/  THE COMMISSIONER ARGUES THAT THAT RULE,
APPLICABLE HERE, MEANS THAT UNUSED AMOUNTS IN A BAD DEBT RESERVE MUST
BE RESTORED TO INCOME WHEN THE RESERVE IS FOUND TO BE NO LONGER
NECESSARY, AS IT WAS HERE, WHEN THE PARTNERSHIP'S "NEED" FOR THE
RESERVE ENDED WITH THE TERMINATION OF ITS BUSINESS.  CONGRESS COULD
MAKE THE END OF "NEED" SYNONYMOUS WITH "RECOVERY" IN THE MEANING OF THE
TAX BENEFIT RULE AND MAKE THE RULE READ:  "(A) BAD DEBT RESERVE THAT
HAS PRODUCED AN INCOME TAX BENEFIT IN A PRIOR YEAR IS TO BE ADDED TO
INCOME IN THE YEAR WHEN IT WAS RECOVERED OR WHEN ITS NEED IS ENDED." 
THE SEMANTICS WOULD THEN BE HONORED BY THE COMMISSIONER'S RULING.  BUT
WE DO NOT FEEL FREE TO STATE THE TAX BENEFIT RULE IN THOSE TERMS IN THE
PRESENT CONTEXT.  WE DEAL WITH SEC. 351(A) OF THE CODE WHICH PROVIDES: 

     "NO GAIN OR LOSS SHALL BE RECOGNIZED IF PROPERTY IS
TRANSFERRED

  TO A CORPORATION BY ONE OR MORE PERSONS SOLELY IN EXCHANGE FOR

  STOCK OR SECURITIES IN SUCH CORPORATION AND IMMEDIATELY AFTER THE

  EXCHANGE SUCH PERSON OR PERSONS ARE IN CONTROL . . . OF THE

  CORPORATION." 

ALL THAT PETITIONERS RECEIVED FROM THE CORPORATIONS WERE SECURITIES
EQUAL IN VALUE TO THE NET WORTH OF THE ACCOUNTS TRANSFERRED, THAT IS
THE FACE VALUE LESS THE AMOUNT OF THE RESERVE FOR BAD DEBTS.  IF, AS
CONCEDED, THERE IS NO "GAIN" OR "LOSS" RECOGNIZED AS A RESULT OF THE
TRANSACTION, IT SEEMS ANOMALOUS TO TREAT THE BAD DEBT RESERVE AS
"INCOME" TO THE TRANSFEROR.  /4/ 

DEDUCTION OF THE RESERVE FROM THE FACE AMOUNT OF THE RECEIVABLES
TRANSFERRED CONFORMS TO THE REALITY OF THE TRANSACTION, AS THE RISK OF
NONCOLLECTION WAS ON THE TRANSFEREE.  SINCE THE RESERVE FOR PURPOSES OF
THIS CASE WAS DEEMED TO BE REASONABLE AND THE VALUE OF THE STOCK
RECEIVED UPON THE TRANSFER UAS EQUAL TO THE NET VALUE OF THE
RECEIVABLES, THERE DOES NOT SEEM TO US TO HAVE BEEN ANY "RECOVERY."  A
TAX BENEFIT WAS RECEIVED BY THE PARTNERSHIP WHEN THE BAD DEBT RESERVE
WAS ORIGINALLY TAKEN AS A DEDUCTION FROM INCOME.  THERE WOULD BE A
DOUBLE BENEFIT TO THE PARTNERSHIP IF SECURITIES WERE ISSUED COVERING
THE FACE AMOUNT OF THE RECEIVABLES.  WE DO NOT, HOWEVER, UNDERSTAND HOW
THERE CAN BE A "RECOVERY" OF THE BENEFIT OF THE BAD DEBT RESERVE WHEN
THE RECEIVABLES ARE TRANSFERRED LESS THE RESERVE.  /5/  THAT MERELY
PERPETUATES THE STATUS QUO AND DOES NOT TINKER WITH IT FOR ANY DOUBLE
BENEFIT OUT OF THE BAD DEBT RESERVE. 

FOR THESE REASONS, THE COURT OF APPEALS IN THE SCHMIDT CASE /6/
HELD THAT ALTHOUGH THE "NEED" FOR THE RESERVE ENDED WITH THE TRANSFER,
THE END OF THAT NEED DID NOT MARK A "RECOVERY" WITHIN THE MEANING OF
THE TAX BENEFIT CASES, 355 F.2D, AT 113.  WE AGREE AND ACCORDINGLY
REVERSE THE JUDGMENT BELOW. 

              REVERSED. 

/1/  ESTATE OF SCHMIDT V. COMMISSIONER, 355 F.2D 111. 

/2/  SEE REV. RUL. 62-128, 1962-2 CUM. BULL.  139. 

/3/  SECTION 111(A) OF THE 1954 CODE PROVIDES: 

"GROSS INCOME DOES NOT INCLUDE INCOME ATTRIBUTABLE TO THE RECOVERY
DURING THE TAXABLE YEAR OF A BAD DEBT, PRIOR TAX, OR DELINQUENCY
AMOUNT, TO THE EXTENT OF THE AMOUNT OF THE RECOVERY EXCLUSION WITH
RESPECT TO SUCH DEBT, TAX, OR AMOUNT." 

/4/  AS STATED IN GEYER, CORNELL & NEWELL, INC. V. COMMISSIONER, 6
T.C. 96, 100:  "A RESERVE CONSISTS OF ENTRIES UPON BOOKS OF ACCOUNT. 
IT IS NEITHER AN ASSET NOR A LIABILITY.  IT HAS NO EXISTENCE EXCEPT
UPON THE BOOKS, AND, UNLIKE AN ASSET OR A LIABILITY, IT CAN NOT BE
TRANSFERRED TO ANY OTHER ENTITY." 

/5/  "(THE INFIRMITIES IN THE ACCOUNTS RECEIVABLE WHICH JUSTIFY THE
BAD DEBT RESERVE CARRY OVER TO THOSE ACCOUNTS IN THE HANDS OF THE
CORPORATION.  PRESUMABLY THE AMOUNT THAT WILL ULTIMATELY BE COLLECTED
BY THE CORPORATION WILL NOT BE THE GROSS AMOUNT OF THE RECEIVABLES, BUT
RATHER THE NET AMOUNT AFTER DEDUCTING THE BAD DEB RESERVE.  THUS, THE
STOCK RECEIVED IN EXCHANGE FOR SUCH ACCOUNTS RECEIVABLE CAN ONLY BE
WORTH WHAT THE RECEIVABLES THEMSELVES ARE WORTH, NAMELY, THE NET
COLLECTABLE AMOUNT RATHER THAN THE GROSS AMOUNT."  ARENT, REALLOCATION
OF INCOME AND EXPENSES IN CONNECTION WITH FORMATION AND LIQUIDATION OF
CORPORATIONS, 40 TAXES, 995, 998 (1962). 

/6/  N. 1, SUPRA. 

MR. JUSTICE BLACK AND MR. JUSTICE STEWART, DISSENTING. 

WE AGREE WITH THE REASONING OF JUDGE TUTTLE'S OPINION FOR THE COURT
OF APPEALS IN THIS CASE, 414 F.2D 627, AND WITH JUDGE RAUM'S OPINION
FOR THE TAX COURT IN SCHUSTER V. COMMISSIONER, 50 T.C. 98. 
ACCORDINGLY, WE WOULD AFFIRM THE JUDGMENT. 

HAROLD I. APOLINSKY ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEF WERE JOSEPH S. BLUESTEIN AND ALEX W. NEWTON. 

MATTHEW J. ZINN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WALTERS, GILBERT E. ANDREWS, AND STUART A. SMITH. 
..END :











GREENBELT PUB. ASSN. V. BRESLER, 398 U.S. 6 


       GREENBELT COOPERATIVE PUBLISHING ASSN., INC., ET AL. V.

           BRESLER. 

        CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

        NO. 413.  ARGUED FEBRUARY 24-25, 1970-- DECIDED MAY 18,

           1970. 


AT PUBLIC MEETINGS BEFORE THE GREENBELT, MARYLAND, CITY COUNCIL, THE
EFFORTS OF RESPONDENT, A PROMINENT REAL ESTATE DEVELOPER AND STATE
LEGISLATOR, TO SECURE ZONING VARIANCES FOR CERTAIN LAND HE OWNED WHILE
THE CITY WAS TRYING TO ACQUIRE OTHER LAND OF HIS ON WHICH TO BUILD A
SCHOOL WERE VIGOROUSLY DISCUSSED.  IN PUBLISHING IN THEIR NEWSPAPER
FULL ACCOUNTS OF THE MEETINGS, PETITIONERS REPORTED THAT VARIOUS
CITIZENS HAD CHARACTERIZED RESPONDENT'S NEGOTIATING POSITION AS
"BLACKMAIL."  RESPONDENT, CONCEDEDLY A "PUBLIC FIGURE," BROUGHT THIS
LIBEL ACTION AGAINST PETITIONERS FOR PUBLISHING THE REPORTS
NOTWITHSTANDING THEIR KNOWLEDGE THAT HE HAD NOT COMMITTED THE CRIME OF
BLACKMAIL.  THE TRIAL JUDGE INSTRUCTED THE JURY THAT RESPONDENT COULD
RECOVER IF PETITIONERS' PUBLICATIONS HAD BEEN MADE WITH MALICE (DEFINED
AS INCLUDING "SPITE, HOSTILITY, OR DELIBERATE INTENTION TO HARM") OR
RECKLESS DISREGARD OF WHETHER THEY WERE TRUE OR FALSE, AND THAT MALICE
COULD BE FOUND FROM THE "LANGUAGE" OF THE PUBLICATION ITSELF.  THE JURY
FOUND FOR RESPONDENT, AND THE JUDGMENT WAS AFFIRMED ON APPEAL.  HELD: 

1.  THE TRIAL COURT'S INSTRUCTIONS, WHICH PERMITTED THE JURY TO FIND
LIABILITY MERELY ON THE BASIS OF THE REPORTED HOSTILE REMARKS MADE
DURING A DEBATE ON A PUBLIC ISSUE, VIOLATED THE FIRST AMENDMENT AS MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT, WHETHER
RESPONDENT IS CONSIDERED TO BE A "PUBLIC OFFICIAL" OR A "PUBLIC
FIGURE."  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254; CURTIS
PUBLISHING CO. V. BUTTS, 388 U.S. 130.  PP. 8-11. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, WHERE IT IS UNDISPUTED THAT
PETITIONERS' REPORTS OF THE MEETINGS WERE ACCURATE, THE WORD
"BLACKMAIL" WAS NOT SLANDEROUS WHEN SPOKEN, OR LIBELOUS WHEN REPORTED
BY PETITIONERS, AS THERE IS NO EVIDENCE WHATSOEVER THAT THE WORD WAS
USED TO IMPUTE A CRIME TO RESPONDENT OR WAS INTENDED AS MORE THAN A
VIGOROUS EPITHET.  PP. 11-14. 

253 MD. 324, 252 A.2D 755, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS ARE THE PUBLISHERS OF A SMALL WEEKLY NEWSPAPER, THE
GREENBELT NEWS REVIEW, IN THE CITY OF GREENBELT, MARYLAND.  THE
RESPONDENT BRESLER IS A PROMINENT LOCAL REAL ESTATE DEVELOPER AND
BUILDER IN GREENBELT, AND WAS, DURING THE PERIOD IN QUESTION, A MEMBER
OF THE MARYLAND HOUSE OF DELEGATES FROM A NEIGHBORING DISTRICT.  IN THE
AUTUMN OF 1965 BRESLER WAS ENGAGED IN NEGOTIATIONS WITH THE GREENBELT
CITY COUNCIL TO OBTAIN CERTAIN ZONING VARIANCES THAT WOULD ALLOW THE
CONSTRUCTION OF HIGH-DENSITY HOUSING ON LAND OWNED BY HIM.  AT THE SAME
TIME THE CITY WAS ATTEMPTING TO ACQUIRE ANOTHER TRACT OF LAND OWNED BY
BRESLER FOR THE CONSTRUCTION OF A NEW HIGH SCHOOL.  EXTENSIVE
LITIGATION CONCERNING COMPENSATION FOR THE SCHOOL SITE SEEMED IMMINENT,
UNLESS THERE SHOULD BE AN AGREEMENT ON ITS PRICE BETWEEN BRESLER AND
THE CITY AUTHORITIES, AND THE CONCURRENT NEGOTIATIONS OBVIOUSLY
PROVIDED BOTH PARTIES CONSIDERABLE BARGAINING LEVERAGE. 

THESE JOINT NEGOTIATIONS EVOKED SUBSTANTIAL LOCAL CONTROVERSY, AND
SEVERAL TUMULTUOUS CITY COUNCIL MEETINGS WERE HELD AT WHICH MANY
MEMBERS OF THE COMMUNITY FREELY EXPRESSED THEIR VIEWS.  THE MEETINGS
WERE REPORTED AT LENGTH IN THE NEWS COLUMNS OF THE GREENBELT NEWS
REVIEW.  TWO NEWS ARTICLES IN CONSECUTIVE WEEKLY EDITIONS OF THE PAPER
STATED THAT AT THE PUBLIC MEETINGS SOME PEOPLE HAD CHARACTERIZED
BRESLER'S NEGOTIATING POSITION AS "BLACKMAIL."  THE WORD APPEARED
SEVERAL TIMES, BOTH WITH AND WITHOUT QUOTATION MARKS, AND WAS USED ONCE
AS A SUBHEADING WITHIN A NEWS STORY.  /1/ 

BRESLER REACTED TO THESE NEWS ARTICLES BY FILING THE PRESENT LAWSUIT
FOR LIBEL, SEEKING BOTH COMPENSATORY AND PUNITIVE DAMAGES.  THE PRIMARY
THRUST OF HIS COMPLAINT WAS THAT THE ARTICLES, INDIVIDUALLY AND ALONG
WITH OTHER ITEMS PUBLISHED IN THE PETITIONERS' NEWSPAPER, IMPUTED TO
HIM THE CRIME OF BLACKMAIL.  THE CASE WENT TO TRIAL, AND THE JURY
AWARDED BRESLER $5,000 IN COMPENSATORY DAMAGES AND $12,500 IN PUNITIVE
DAMAGES.  THE MARYLAND COURT OF APPEALS AFFIRMED THE JUDGMENT.  253 MD.
324, 252 A.2D 755.  WE GRANTED CERTIORARI TO CONSIDER THE
CONSTITUTIONAL ISSUES PRESENTED.  396 U.S. 874. 

IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, WE HELD THAT THE
CONSTITUTION PERMITS A "PUBLIC OFFICIAL" TO RECOVER MONEY DAMAGES FOR
LIBEL ONLY IF HE CAN SHOW THAT THE DEFAMATORY PUBLICATION WAS NOT ONLY
FALSE BUT WAS UTTERED WITH "'ACTUAL MALICE'-- THAT IS, WITH KNOWLEDGE
THAT IT WAS FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR
NOT."  ID., AT 280.  IN CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130,
WE DEALT WITH THE CONSTITUTIONAL RESTRICTIONS UPON A LIBEL SUIT BROUGHT
BY A "PUBLIC FIGURE." 

IN THE PRESENT CASE BRESLER'S COUNSEL CONCEDED IN HIS OPENING
STATEMENT TO THE JURY THAT BRESLER WAS A PUBLIC FIGURE IN THE
COMMUNITY.  THIS CONCESSION WAS CLEARLY CORRECT.  BRESLER WAS DEEPLY
INVOLVED IN THE FUTURE DEVELOPMENT OF THE CITY OF GREENBELT.  HE HAD
ENTERED INTO AGREEMENTS WITH THE CITY FOR ZONING VARIANCES IN THE PAST,
AND WAS AGAIN SEEKING SUCH FAVORS TO PERMIT THE CONSTRUCTION OF HOUSING
UNITS OF A TYPE NOT CONTEMPLATED IN THE ORIGINAL CITY PLAN.  AT THE
SAME TIME THE CITY WAS TRYING TO OBTAIN A TRACT OF LAND OWNED BY
BRESLER FOR THE PURPOSE OF BUILDING A SCHOOL.  NEGOTIATIONS OF
SIGNIFICANT PUBLIC CONCERN WERE IN PROGRESS, BOTH WITH SCHOOL OFFICIALS
AND THE CITY COUNCIL.  BRESLER'S STATUS THUS CLEARLY FELL WITHIN EVEN
THE MOST RESTRICTIVE DEFINITION OF A "PUBLIC FIGURE."  CURTIS
PUBLISHING CO. V. BUTTS, SUPRA, AT 154-155 (OPINION OF HARLAN, J.). 
SEE ALSO PAULING V. GLOBE-DEMOCRAT PUBLISHING CO., 363 F.2D 188, 195
196, CERT. DENIED, 388 U.S. 909. 

WHETHER AS A STATE LEGISLATOR REPRESENTING ANOTHER COUNTY, OR FOR
SOME OTHER REASON, BRESLER WAS A "PUBLIC OFFICIAL" WITHIN THE MEANING
OF THE NEW YORK TIMES RULE IS A QUESTION WE NEED NOT DETERMINE.  CF.
TIME, INC. V. HILL, 385 U.S. 374, 390; ROSENBLATT V. BAER, 383 U.S. 75,
86 N. 12.  FOR THE INSTRUCTIONS TO THE JURY IN THIS CASE PERMITTED A
FINDING OF LIABILITY UNDER AN IMPERMISSIBLE CONSTITUTIONAL STANDARD,
WHICHEVER STATUS BRESLER MIGHT BE CONSIDERED TO OCCUPY.  IN HIS CHARGE
TO THE MEMBERS OF THE JURY, THE TRIAL JUDGE REPEATEDLY INSTRUCTED THEM
THAT BRESLER COULD RECOVER IF THE PETITIONERS'  PUBLICATIONS HAD BEEN
MADE WITH MALICE OR WITH A RECKLESS DISREGARD OF WHETHER THEY WERE TRUE
OR FALSE.  THIS INSTRUCTION WAS GIVEN IN ONE FORM OR ANOTHER HALF A
DOZEN TIMES DURING THE COURSE OF THE JUDGE'S CHARGE.  /2/  THE JUDGE
THEN DEFINED "MALICE" TO INCLUDE "SPITE, HOSTILITY OR DELIBERATE
INTENTION TO HARM."  MOREOVER, HE INSTRUCTED THE JURY THAT "MALICE"
COULD BE FOUND FROM THE "LANGUAGE" OF THE PUBLICATION ITSELF.  /3/
THUS THE JURY WAS PERMITTED TO FIND LIABILITY MERELY ON THE BASIS OF A
COMBINATION OF FALSEHOOD AND GENERAL HOSTILITY. 

THIS WAS ERROR OF CONSTITUTIONAL MAGNITUDE, AS OUR DECISIONS HAVE
MADE CLEAR.  "THIS DEFINITION OF MALICE IS CONSTITUTIONALLY
INSUFFICIENT WHERE DISCUSSION OF PUBLIC AFFAIRS IS CONCERNED; '(WE HELD
IN NEW YORK TIMES THAT A PUBLIC OFFICIAL MIGHT BE ALLOWED THE CIVIL
REMEDY ONLY IF HE ESTABLISHES THAT THE UTTERANCE WAS FALSE AND THAT IT
WAS MADE WITH KNOWLEDGE OF ITS FALSITY OR IN RECKLESS DISREGARD OF
WHETHER IT WAS FALSE OR TRUE.'"  ROSENBLATT V. BAER, SUPRA, AT 84. 
"(EVEN WHERE THE UTTERANCE IS FALSE, THE GREAT PRINCIPLES OF THE
CONSTITUTION WHICH SECURE FREEDOM OF EXPRESSION IN THIS AREA PRECLUDE
ATTACHING ADVERSE CONSEQUENCES TO ANY EXCEPT THE KNOWING OR RECKLESS
FALSEHOOD.  DEBATE ON PUBLIC ISSUES WILL NOT BE UNINHIBITED IF THE
SPEAKER MUST RUN THE RISK THAT IT WILL BE PROVED IN COURT THAT HE SPOKE
OUT OF HATRED . . . . "  GARRISON V. LOUISIANA, 379 U.S. 64, 73.  SEE
ALSO BECKLEY NEWSPAPERS CORP. V. HANKS, 389 U.S. 81, 82.  AND THE
CONSTITUTIONAL PROHIBITION IN THIS RESPECT IS NO DIFFERENT WHETHER THE
PLAINTIFF BE CONSIDERED A "PUBLIC OFFICIAL" OR A "PUBLIC FIGURE." 
CURTIS PUBLISHING CO. V. BUTTS, SUPRA. 

THE ERRONEOUS INSTRUCTIONS TO THE JURY WOULD, THEREFORE, ALONE BE
ENOUGH TO REQUIRE THE REVERSAL OF THE JUDGMENT BEFORE US.  FOR WHEN "IT
IS IMPOSSIBLE TO KNOW, IN VIEW OF THE GENERAL VERDICT RETURNED" WHETHER
THE JURY IMPOSED LIABILITY ON A PERMISSIBLE OR AN IMPERMISSIBLE GROUND,
"THE JUDGMENT MUST BE REVERSED AND THE CASE REMANDED."  NEW YORK TIMES
CO. V. SULLIVAN, SUPRA, AT 284.  SEE TIME, INC. V. HILL, SUPRA, AT 394
397; ROSENBLATT V. BAER, SUPRA, AT 82; STROMBERG V. CALIFORNIA, 283
U.S. 359, 367-368. 

THIS, HOWEVER, DOES NOT END THE INQUIRY.  AS WE NOTED IN NEW YORK
TIMES, "(THIS COURT'S DUTY IS NOT LIMITED TO THE ELABORATION OF
CONSTITUTIONAL PRINCIPLES; WE MUST ALSO IN PROPER CASES REVIEW THE
EVIDENCE TO MAKE CERTAIN THAT THOSE PRINCIPLES HAVE BEEN
CONSTITUTIONALLY APPLIED . . . . WE MUST 'MAKE AN INDEPENDENT
EXAMINATION OF THE WHOLE RECORD,' . . . SO AS TO ASSURE OURSELVES THAT
THE JUDGMENT DOES NOT CONSTITUTE A FORBIDDEN INSTRUSION ON THE FIELD OF
FREE EXPRESSION."  376 U.S.,AT 285. 

THIS CASE INVOLVES NEWSPAPER REPORTS OF PUBLIC MEETINGS OF THE
CITIZENS OF A COMMUNITY CONCERNED WITH MATTERS OF LOCAL GOVERNMENTAL
INTEREST AND IMPORTANCE.  THE VERY SUBJECT MATTER OF THE NEWS REPORTS,
THEREFORE, IS ONE OF PARTICULAR FIRST AMENDMENT CONCERN.  "THE
MAINTENANCE OF THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION TO THE END
THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND THAT
CHANGES MAY BE OBTAINED BY LAWFUL MEANS . . . IS A FUNDAMENTAL
PRINCIPLE OF OUR CONSTITUTIONAL SYSTEM."  STROMBERG V. CALIFORNIA,
SUPRA, AT 369.  "FREEDOM OF DISCUSSION, IF IT WOULD FULFILL ITS
HISTORIC FUNCTION IN THIS NATION, MUST EMBRACE ALL ISSUES ABOUT WHICH
INFORMATION IS NEEDED TO COPE WITH THE EXIGENCIES OF THEIR PERIOD." 
THORNHILL V. ALABAMA, 310 U.S. 88, 102.  /4/  BECAUSE THE THREAT OR
ACTUAL IMPOSITION OF PECUNIARY LIABILITY FOR ALLEGED DEFAMATION MAY
IMPAIR THE UNFETTERED EXERCISE OF THESE FIRST AMENDMENT FREEDOMS, THE
CONSTITUTION IMPOSES STRINGENT LIMITATIONS UPON THE PERMISSIBLE SCOPE
OF SUCH LIABILITY.  /5/ 

IT IS NOT DISPUTED THAT THE ARTICLES PUBLISHED IN THE PETITIONERS'
NEWSPAPER WERE ACCURATE AND TRUTHFUL REPORTS OF WHAT HAD BEEN SAID AT
THE PUBLIC HEARINGS BEFORE THE CITY COUNCIL.  /6/  IN THIS SENSE,
THEREFORE, IT CANNOT EVEN BE CLAIMED THAT THE PETITIONERS WERE GUILTY
OF ANY "DEPARTURE FROM THE STANDARDS OF INVESTIGATION AND REPORTING
ORDINARILY ADHERED TO BY RESPONSIBLE PUBLISHERS," CURTIS PUBLISHING CO.
V. BUTTS, SUPRA, AT 155 (OPINION OF HARLAN, J.), MUCH LESS THE KNOWING
USE OF FALSEHOOD OR A RECKLESS DISREGARD OF WHETHER THE STATEMENTS MADE
WERE TRUE OR FALSE.  NEW YORK TIMES CO. V. SULLIVAN, SUPRA, AT 280. 

THE CONTENTION IS, RATHER, THAT THE SPEAKERS AT THE MEETING, IN
USING THE WORD "BLACKMAIL," AND THE PETITIONERS IN REPORTING THE USE OF
THAT WORD IN THE NEWSPAPER ARTICLES, WERE CHARGING BRESLER WITH THE
CRIME OF BLACKMAIL, AND THAT SINCE THE PETITIONERS KNEW THAT BRESLER
HAD COMMITTED NO SUCH CRIME, THEY COULD BE HELD LIABLE FOR THE KNOWING
USE OF FALSEHOOD.  IT WAS UPON THIS THEORY THAT THE CASE WAS SUBMITTED
TO THE JURY, AND UPON THIS THEORY THAT THE JUDGMENT WAS AFFIRMED BY THE
MARYLAND COURT OF APPEALS.  253 MD. 324, 360-364, 252 A.2D 755, 775
778.  FOR THE REASONS THAT FOLLOW, WE HOLD THAT THE IMPOSITION OF
LIABILITY ON SUCH A BASIS WAS CONSTITUTIONALLY IMPERMISSIBLE-- THAT AS
A MATTER OF CONSTITUTIONAL LAW, THE WORD "BLACKMAIL" IN THESE
CIRCUMSTANCES WAS NOT SLANDER WHEN SPOKEN, AND NOT LIBEL WHEN REPORTED
IN THE GREENBELT NEWS REVIEW. 

THERE CAN BE NO QUESTION THAT THE PUBLIC DEBATES AT THE SESSIONS OF
THE CITY COUNCIL REGARDING BRESLER'S NEGOTIATIONS WITH THE CITY WERE A
SUBJECT OF SUBSTANTIAL CONCERN TO ALL WHO LIVED IN THE COMMUNITY.  THE
DEBATES THEMSELVES WERE HEATED, AS DEBATES ABOUT CONTROVERSIAL ISSUES
USUALLY ARE.  DURING THE COURSE OF THE ARGUMENTS BRESLER'S OPPONENTS
CHARACTERIZED THE POSITION HE HAD TAKEN IN HIS NEGOTIATIONS WITH THE
CITY OFFICIALS AS "BLACKMAIL."  THE GREENBELT NEWS REVIEW WAS
PERFORMING ITS WHOLLY LEGITIMATE FUNCTION AS A COMMUNITY NEWSPAPER WHEN
IT PUBLISHED FULL REPORTS OF THESE PUBLIC DEBATES IN ITS NEWS COLUMNS. 
IF THE REPORTS HAD BEEN TRUNCATED OR DISTORTED IN SUCH A WAY AS TO
EXTRACT THE WORD "BLACKMAIL" FROM THE CONTEXT IN WHICH IT WAS USED AT
THE PUBLIC MEETINGS, THIS WOULD BE A DIFFERENT CASE.  BUT THE REPORTS
WERE ACCURATE AND FULL.  THEIR HEADLINES, "SCHOOL SITE STIRS UP COUNCIL
- REZONING DEAL OFFER DEBATED" AND "COUNCIL REJECTS BY 4-1 HIGH SCHOOL
SITE DEAL," MADE IT CLEAR TO ALL READERS THAT THE PAPER WAS REPORTING
THE PUBLIC DEBATES ON THE PENDING LAND NEGOTIATIONS.  BRESLER'S
PROPOSAL WAS ACCURATELY AND FULLY DESCRIBED IN EACH ARTICLE, ALONG WITH
THE ACCURATE STATEMENT THAT SOME PEOPLE AT THE MEETINGS HAD REFERRED TO
THE PROPOSAL AS BLACKMAIL, AND OTHERS HAD INDICATED THEY THOUGHT
BRESLER'S POSITION NOT UNREASONABLE. 

IT IS SIMPLY IMPOSSIBLE TO BELIEVE THAT A READER WHO REACHED THE
WORD "BLACKMAIL" IN EITHER ARTICLE WOULD NOT HAVE UNDERSTOOD EXACTLY
WHAT WAS MEANT: IT WAS BRESLER'S PUBLIC AND WHOLLY LEGAL NEGOTIATING
PROPOSALS THAT WERE BEING CRITICIZED.  NO READER COULD HAVE THOUGHT
THAT EITHER THE SPEAKERS AT THE MEETINGS OR THE NEWSPAPER ARTICLES
REPORTING THEIR WORDS WERE CHARGING BRESLER WITH THE COMMISSION OF A
CRIMINAL OFFENSE.  /7/  ON THE CONTRARY, EVEN THE MOST CARELESS READER
MUST HAVE PERCEIVED THAT THE WORD WAS NO MORE THAN RHETORICAL
HYPERBOLE, A VIGOROUS EPITHET USED BY THOSE WHO CONSIDERED BRESLER'S
NEGOTIATING POSITION EXTREMELY UNREASONABLE.  INDEED, THE RECORD IS
COMPLETELY DEVOID OF EVIDENCE THAT ANYONE IN THE CITY OF GREENBELT OR
ANYWHERE ELSE THOUGHT BRESLER HAD BEEN CHARGED WITH A CRIME. 

TO PERMIT THE INFLICTION OF FINANCIAL LIABILITY UPON THE PETITIONERS
FOR PUBLISHING THESE TWO NEWS ARTICLES WOULD SUBVERT THE MOST
FUNDAMENTAL MEANING OF A FREE PRESS, PROTECTED BY THE FIRST AND
FOURTEENTH AMENDMENTS.  ACCORDINGLY, WE REVERSE THE JUDGMENT AND REMAND
THE CASE TO THE COURT OF APPEALS OF MARYLAND FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION. 

             IT IS SO ORDERED. 

/1/  THE RELEVANT PORTIONS OF THESE NEWS ARTICLES ARE PRINTED AS AN
APPENDIX TO THIS OPINION. 

/2/  THE FOLLOWING EXCERPTS FROM THE TRIAL JUDGE'S CHARGE ARE
ILLUSTRATIVE: 

"ACCORDINGLY . . . YOU MUST FIND FOR THE DEFENDANT ON THE ISSUE OF
FAIR COMMENT, UNLESS YOU DETERMINE BY A PREPONDERANCE OF THE EVIDENCE
THAT THE COMMENT OR CRITICISM . . . WAS PUBLISHED WITH MALICE OR A
RECKLESS DISREGARD OF WHETHER IT WAS TRUE OR FALSE. 

" . . . AND SUCH STATEMENTS REPEATED AND/OR PUBLISHED, UNLESS WITH
ACTUAL MALICE, OR KNOWLEDGE THAT THEY ARE FALSE, RECKLESS DISREGARD FOR
WHETHER THEY ARE TRUE OR FALSE, IS NOT LIBEL. 

"THE LAW RECOGNIZES THE IMPORTANCE OF FREE DISCUSSION AND CRITICISM
AND MATTERS OF PUBLIC INTEREST TO THE EXTENT THAT IT GRANTS IMMUNITY
EVEN WITH RESPECT TO THE PUBLICATION OF FOOLISH AND PREJUDICIAL
CRITICISM IF THEY ARE NOT PUBLISHED WITH MALICE,KNOWLEDGE OF THEIR NOT
BEING TRUE, IT IS KNOWLEDGE THEY ARE FALSE, OR RECKLESS DISREGARD OF
WHETHER THEY ARE TRUE OR FALSE . . . .             .          .
.          . 

"(YOUR VERDICT SHOULD BE FOR THE DEFENDANT UNLESS YOU FIND THAT THE
PUBLICATION WAS MADE WITH ACTUAL MALICE, KNOWLEDGE OF ITS FALSITY, OR
RECKLESS DISREGARD OF WHETHER IT WAS TRUE OR FALSE. 

 .          .          .          . 

"(YOUR VERDICT SHOULD BE FOR THE DEFENDANT UNLESS YOU FIND AGAIN THE
PUBLICATION WAS WITH ACTUAL MALICE, KNOWLEDGE OF ITS BEING FALSE OR
RECKLESS DISREGARD OF WHETHER IT WAS TRUE OR FALSE." 

/3/  THE TRIAL JUDGE SAID: 

"WITH RESPECT TO YOUR CONSIDERATION OF PRESENCE OF ACTUAL MALICE ON
THE PART OF DEFENDANT, YOU MAY INFER ITS PRESENCE FROM THE LANGUAGE OR
CIRCUMSTANCES OF THE PUBLICATION, BUT THIS MAY BE DONE ONLY IF THE
CHARACTER OF THE PUBLICATION IS SO EXCESSIVE, INTEMPERATE, UNREASONABLE
AND ABUSIVE AS TO DEFY ANY OTHER REASONABLE CONCLUSION THAN THAT THE
DEFENDANT WAS MOVED BY ACTUAL MALICE TOWARD THE PLAINTIFF." 

/4/  SEE ALSO NOTE, THE SCOPE OF FIRST AMENDMENT PROTECTION FOR GOOD
FAITH DEFAMATORY ERROR, 75 YALE L.J. 642, 644-645; PEDRICK, FREEDOM OF
THE PRESS AND THE LAW OF LIBEL:  THE MODERN REVISED TRANSATION, 49
CORNELL L.Q. 581, 592-593. 

/5/  CF. PAULING V. GLOBE-DEMOCRAT PUBLISHING CO., 362 F.2D 188,
CERT. DENIED, 388 U.S. 909; KALVEN, THE NEW YORK TIMES CASE:  A NOTE ON
"THE CENTRAL MEANING OF THE FIRST AMENDMENT," 1964 SUPP.CT.REV.  191,
221. 

/6/  THE MAYOR OF THE CITY TESTIFIED, "CERTAINLY NOTHING IN HERE
THAT REPORTS THE MEETING ANY DIFFERENT FROM THE WAY IT HAPPENED.  THIS
IS PRETTY MUCH THE WAY IT HAPPENED.  IF I WOULD SAY ANYTHING, IT IS
RATHER CONSERVATIVE IN PRESENTING SOME OF THE COMMENTS." 

THE REPORTER WHO WROTE ONE OF THE ARTICLES TESTIFIED:  "(THE PEOPLE
WERE REALLY MAD AND THAT WORD 'BLACKMAIL' WAS USED NOT ONCE OR TWICE
LIKE IN MY STORY, BUT OVER AND OVER AND OVER AGAIN. 

"Q.  BY WHO? 

"A.  BY PEOPLE AT THE MEETING.  AND I FELT IF I LEFT THAT OUT I
REALLY WOULDN'T BE WRITING A TRUTHFUL ARTICLE." 

/7/  UNDER THE LAW OF MARYLAND THE CRIME OF BLACKMAIL CONSISTS IN
THREATENING TO ACCUSE ANY PERSON OF AN INDICTABLE CRIME OR OF ANYTHING
WHICH, IF TRUE, WOULD BRING THE PERSON INTO CONTEMPT OR DISREPUTE, WITH
A VIEW TO EXTORTING MONEY, GOODS, OR THINGS OF VALUE.  SEE MD. ANN.
CODE, ART. 27, SECS. 561-563 (1967 REPL.  VOL.).  THERE IS, OF COURSE,
NO INDICATION IN ANY OF THE ARTICLES THAT BRESLER HAD ENGAGED IN
ANYTHING APPROACHING SUCH CONDUCT. 

        APPENDIX TO OPINION OF THE COURT 

ON OCTOBER 14, 1965, THE FOLLOWING STORY APPEARED IN THE GREENBELT
NEWS REVIEW:

        SCHOOL SITE STIRS UP COUNCIL

        REZONING DEAL OFFER DEBATED

        BY DOROTHY SUCHER 

DELAY IN CONSTRUCTION OF A NEW GREENBELT HIGH SCHOOL IS THE LEVER BY
WHICH A LOCAL DEVELOPER IS PRESSURING THE CITY TO ENDORSE HIS BID FOR
HIGHER DENSITY REZONING OF TWO LARGE TRACTS OF LAND; SO CITIZENS HEARD
AT A WELL-ATTENDED SPECIAL MEETING OF THE CITY COUNCIL ON MONDAY NIGHT,
OCT. 11. 

FOR THE PAST NINE MONTHS, THE BOARD OF EDUCATION HAS BEEN TRYING TO
ACQUIRE LAND OWNED BY CONSOLIDATED SYNDICATES, INC. (CHARLES BRESLER
THEODORE LERNER), FOR A HIGH SCHOOL SITE.  THE LANDOWNERS, DEVELOPERS
OF CHARLESTOWNE VILLAGE, ALSO OWN OTHER TRACTS OF UNDEVELOPED LAND IN
GREENBELT. 

THE DEVELOPER HAS REFUSED TO ACCEPT THE BOARD OF EDUCATION'S PRICE,
AND CONDEMNATION PROCEEDINGS HAVE ALREADY BEEN DELAYED THREE TIMES . .
. . ORIGINALLY, IT WAS HOPED THE NEW SCHOOL WOULD OPEN SEPTEMBER 1966. 

SOME TIME AGO, IT BECAME KNOWN THAT THE DEVELOPER WOULD AGREE ON THE
PRICE, PROVIDED THE CITY WOULD HELP HIM OBTAIN HIGHER DENSITY REZONING
FOR TWO OF HIS TRACTS (PARCELS 1 AND 2, TOTALING 230 ACRES) NEAR THE
CENTER OF GREENBELT.  IF THE CITY REFUSED, HE THREATENED TO DELAY THE
SCHOOL SITE ACQUISITION AS LONG AS POSSIBLE THROUGH THE COURTS. 

THIS "DEAL" AS IT WAS TERMED BY SEVERAL CITIZENS AT MONDAY'S
MEETING, HAS BEEN RUMORED FOR MONTHS, BUT ONLY BECAME PUBLIC KNOWLEDGE
RECENTLY.  IT WAS CATEGORICALLY OPPOSED BY NATHAN SHINDERMAN, A BOARD
MEMBER OF GREENBELT HOMES, INC. (GHI), WHO READ A LENGTHY STATEMENT BY
GHI PRESIDENT CHARLES SCHWAN . . . .

BLACKMAIL 

"IT SEEMS THAT THIS IS A SLIGHT CASE OF BLACKMAIL," COMMENTED MRS.
MAJORIE BERGEMANN ON MONDAY NIGHT, AND THE WORD WAS ECHOED BY MANY
SPEAKERS FROM THE AUDIENCE. 

COUNCILMAN DAVID CHAMPION, HOWEVER, DENIED THAT IT WAS "BLACKMAIL,"
EXPLAINING THAT HE WOULD RATHER "REFER TO IT (I.E., THE NEGOTIATIONS--
ED.)  AS A TWO-WAY STREET." 

SPEAKING FROM THE FLOOR, GERALD GOUGH, COMMENTED:  "EVERYONE KNOWS
THERE'S A NEED FOR A SCHOOL-- JUST WALK THROUGH THE HALLS OF HIGH
POINT.  THE DEVELOPER KNOWS THERE'S A NEED AND SAYS, 'WE'LL MEET YOUR
NEED IF YOU MEET OUR NEED.'  IN MY OPINION, IT'S HIGHLY UNETHICAL." 

        .          .          .          .

        DELAY PROBABLE 

MAYOR EDGAR SMITH REMARKED THAT IT SHOULD BE MADE CLEAR THAT
REFUSING THE DEVELOPER'S TERMS DID NOT NECESSARILY MEAN THE LOSS OF THE
SCHOOL SITE; THAT IT WOULD, HOWEVER, PROBABLY MEAN A TWO OR THREE YEAR
DELAY IN THE CONSTRUCTION OF THE SCHOOL. 

        .          .          .          . 

AMONG THE PARENTS WHO SPOKE WAS MRS. JOSEPH ROSETTI, WHO SAID:  "I
HAVE SEVERAL CHILDREN GOING INTO HIGH SCHOOL, BUT I WOULD RATHER ADHERE
TO THE GREENBELT MASTER PLAN THAN OVERCROWD THE TOWN WITH DENSE
DEVELOPMENT.  I WOULD STAND FOR MY CHILDREN'S DISCOMFORT, RATHER THAN
GIVE IN TO A BLACKMAILING SCHEME." 

THE FOLLOWING WEEK, THE NEWS REVIEW CARRIED THE SEQUEL TO ITS
EARLIER STORY:

        COUNCIL REJECTS BY 4-1

        HIGH SCHOOL SITE DEAL

        BY MARY LOU WILLIAMSON 

MORE THAN 150 CITIZENS CAME TO HEAR HOW THE NEW CITY COUNCIL WOULD
RESPOND TO PRESSURE BY A LOCAL DEVELOPER FOR HIGHER DENSITY ZONING ON A
LARGE TRACT OF LAND IN EXCHANGE FOR UNCONTESTED CONSUMMATION OF THE
SALE OF A GREENBELT SENIOR HIGH SCHOOL SITE TO THE BOARD OF EDUCATION
AT THE COUNCIL MEETING MONDAY NIGHT. 

COUNCIL SAT QUIETLY LISTENING FOR MORE THAN AN HOUR TO CITIZEN
STATEMENTS BEFORE VOTING TO REJECT THE PROPOSAL (4-1) WITH COUNCILMAN
DAVE CHAMPION DISSENTING. 

        .          .          .          .

        CITIZENS SPEAK 

A PROCESSION OF CITIZENS TOOK THE FLOOR TO MAKE IMPASSIONED SPEECHES
- SOME FROM PREPARED TEXTS, SOME EXTEMPORANEOUSLY.  THE MAYOR
OCCASIONALLY HAD TO CAUTION THEM TO REFRAIN FROM ENGAGING IN
PERSONALITIES. 

ALBERT HERLING SUGGESTED SKULDUGGERY IN THE SEPTEMBER COURT
POSTPONEMENT.  ALTHOUGH HE PRAISED MOST OF THE CITY MANAGER'S REPORT,
HE CRITICIZED THE SECTION ENTITLED "RISKS AND CONCLUSIONS," SAYING THEY
APPEARED NEGATIVE IN THE EXTREME.  HE SUGGESTED A LIST OF POSITIVE
STEPS THAT COUNCIL OUGHT TO TAKE:  1) FIGHT BRESLER'S "BLACKMAIL"; 2)
MAKE CLEAR TO THE BOARD OF EDUCATION-- NO DEALS; 3) MAKE CLEAR TO THE
DISTRICT COUNCIL (ZONING AUTHORITY) UNANIMOUS OPPOSITION TO THE
REQUESTED R-30 ZONING; AND 4) SEEK THE SWIFTEST POSSIBLE COURT
SETTLEMENT.  "FOR ANYTHING LESS," CHARGED HERLING, "WOULD BE OTHER THAN
WHAT YOU BELIEVE.  AND WHEN THE CHIPS ARE DOWN, THIS IS EXACTLY WHAT
YOU'LL DO." 

        .          .          .          . 

PILSKI ASKED IF ANYONE IN THE AUDIENCE CARED TO SPEAK IN SUPPORT OF
BRESLER'S PROPOSAL. 

ONLY JAMES MARTIN TOOK THE FLOOR.  HE SUGGESTED THAT BRESLER'S
ACTION WAS NOT "BLACKMAIL" BUT THE LEGITIMATE ADVANCE OF HIS RIGHTS TO
DEVELOP HIS LAND.  MARTIN SUGGESTED, BY WAY OF EXAMPLE, THAT GHI'S LONG
RANGE PLANNING COMMITTEE HAD BEEN DOING MUCH THE SAME THING SOME MONTHS
AGO.  HE ALLEGED THAT THE DENSITY OF THE "FRAME HOMES (GHI) IS FAR MORE
ATROCIOUS THAN ANYTHING BRESLER'S CONSIDERING." 

MR. JUSTICE WHITE, CONCURRING. 

I CONCUR IN THE JUDGMENT OF REVERSAL AND JOIN THE OPINION OF THE
COURT INSOFAR AS IT RESTS REVERSAL ON THE ERRONEOUS DEFINITION OF
MALICE CONTAINED IN THE INSTRUCTIONS GIVEN TO THE JURY.  I DO NOT,
HOWEVER, JOIN THE REMAINDER OF THE COURT'S OPINION. 

RESPONDENT BRESLER CHARGED THAT HE HAD BEEN LIBELED BY AT LEAST FOUR
STATEMENTS PUBLISHED IN PETITIONERS' NEWSPAPER:  (1) A STATEMENT THAT
BRESLER'S CONDUCT AMOUNTED TO "A SLIGHT CASE OF BLACKMAIL," ACCOMPANIED
BY THE USE OF THE WORD "BLACKMAIL" AS A COLUMN SUBHEADING; (2) A CHARGE
THAT BRESLER HAD ENGAGED IN AN "UNETHICAL TRADE"; (3) AN ALLEGATION
THAT BRESLER HAD BEEN GUILTY OF "SKULDUGGERY," A WORD USED BY THE
NEWSPAPER TO CHARACTERIZE STATEMENTS MADE BY OTHERS ABOUT BRESLER; AND
(4) A STATEMENT THAT BRESLER HAD HAD LEGAL PROCEEDINGS "STARTED AGAINST
HIM FOR FAILURE TO MAKE CONSTRUCTION CORRECTIONS IN ACCORDANCE WITH
COUNTY STANDARDS."  PETITIONERS CONTENDED THAT THE USE OF THE WORD
BLACKMAIL HAD NOT BEEN INTENDED IN THE CRIMINAL SENSE AND WAS NOT
LIBELOUS AND THAT IN ANY EVENT THE NEWSPAPER HAD NOT MADE ITS
PUBLICATIONS WITH MALICE, THAT IS, WITH KNOWLEDGE THAT ANY OF THE
STATEMENTS WERE FALSE OR WITH RECKLESS DISREGARD OF THE FALSITY OF ANY
OF THEM. 

IN INSTRUCTING THE JURY THE TRIAL COURT DEFINED LIBEL AS: 

"THE PUBLICATION OF WORDS, PICTURES OR SYMBOLS WHICH IMPUTES TO A
PERSON A CRIME OR A DISGRACEFUL OR DISHONEST OR IMMORAL CONDUCT OR IS
OTHERWISE INJURIOUS TO THE PRIVATE CHARACTER OR CREDIT OF THE PERSON IN
THE MINDS OF A CONSIDERABLE AND RESPECTABLE CLASS IN THE COMMUNITY . .
. . 

     "(THE BURDEN IS UPON THE PLAINTIFF TO ESTABLISH BY A

  PREPONDERANCE OF THE EVIDENCE THAT THE PUBLICATION IMPUTED TO HIM

  A CRIME, OR DISGRACEFUL, DISHONEST OR IMMORAL CONDUCT OR WAS

  OTHERWISE INJURIOUS TO HIS PRIVATE CHARACTER OR CREDIT . . . . "

APP. E. 189. 

WITH RESPECT TO THE DISPUTE OVER THE SENSE WITH WHICH THE CHARGE OF
BLACKMAIL HAD BEEN USED THE COURT TOLD THE JURY: 

"(IF YOU ARE UNABLE TO CONCLUDE FROM THE PREPONDERANCE OF THE
EVIDENCE THAT THE PUBLICATION BEARS A MEANING ASCRIBED TO IT BY THE
PLAINTIFF, OR IF YOU FIND THAT THE EVIDENCE IS EQUALLY BALANCED ON THAT
ISSUE, THEN YOUR VERDICT MUST BE FOR THE DEFENDANT. 

        .          .          . . 

     "IN CONSIDERING THE PUBLICATION COMPLAINED OF, YOU MUST

  CONSIDER THE PUBLICATION AS A WHOLE-- THE COURT WOULD SAY IN THIS

  CASE WE ARE TALKING ABOUT SERIOUS, NUMBER OF PUBLICATIONS-- AND

  DETERMINE THE MEANING OF THE PUBLICATION AND HOW IT WOULD BE

  UNDERSTOOD BY ORDINARY READERS FROM THE ENTIRE CONTEXT THEREOF

  WITH THE OTHER FACTS AND CIRCUMSTANCES SHOWN BY THE EVIDENCE. 

      "WHERE A PUBLICATION IS SUSCEPTIBLE OF TWO MEANINGS ONE OF

  THOSE WHICH WOULD BE LIBELOUS AND THE OTHER NOT, IT IS UP TO YOU

  TO SAY WHICH OF THE TWO MEANINGS WOULD BE ATTRIBUTABLE TO IT, BY

  THOSE TO WHOM IT IS ADDRESSED OR BY WHOM IT MAY BE READ.  IN

  REACHING YOUR DECISION YOU CAN CONSIDER ALL THE CIRCUMSTANCES

  SURROUNDING THE PUBLICATION, WHICH INCLUDES ALL OF THE EVIDENCE

  WHICH HAS BEEN ADMITTED."  ID., AT 3.  189-190. 

THE COURT ALSO DEFINED THE CRIME OF BLACKMAIL AND TOLD THE JURY THAT
IN THIS SENSE THE DEFENDANT NEWSPAPER DID NOT CLAIM THAT THE
ALLEGATIONS WERE TRUE. 

PETITIONERS TOOK EXCEPTION TO NONE OF THE FOREGOING INSTRUCTIONS
ALTHOUGH IN THEIR MOTION FOR JUDGMENT N.O.V. OR FOR A NEW TRIAL, ERROR
WAS CLAIMED IN NOT INSTRUCTING THE JURY THAT THE FAILURE TO PLEAD TRUTH
MEANT ONLY THAT THE DEFENDANTS DID NOT ADOPT THE MEANING OF THE WORDS
ALLEGED BY THE PLAINTIFF.  SEE APP. E. 10-11. 

THE JURY RETURNED A VERDICT FOR PLAINTIFF, AND JUDGMENT WAS ENTERED
ON THE VERDICT FOR BOTH COMPENSATORY AND PUNITIVE DAMAGES. 

THE COURT OF APPEALS OF MARYLAND AFFIRMED.  THE COURT HELD THAT
ASIDE FROM FEDERAL CONSTITUTIONAL PROTECTIONS URGED BY PETITIONERS, THE
JURY'S VERDICT AND SUBSEQUENT JUDGMENT THEREON WERE SUPPORTED BY THE
EVIDENCE.  WITH RESPECT TO THE BLACKMAIL CHARGE THE COURT SAID: 

     "IN THE INSTANT CASE THE WORD 'BLACKMAIL' WAS USED AS A

  SUB-HEADING WITHOUT QUALIFICATION.  THE CHARGE OF BLACKMAIL WAS

STATED IN THE NEWS REVIEW ISSUE OF OCTOBER 14, 1965, AND WAS

  AGAIN REPEATED IN THE NEXT WEEK IN THE ISSUE OF OCTOBER 21.  THE

  APPELLANTS ARGUE THAT THE WORD 'BLACKMAIL' WAS USED IN A

  NONCRIMINAL SENSE, BUT THE INTENDED MEANING WAS FOR THE JURY TO

  DETERMINE.  AMERICAN STORES V. BYRD, SUPRA.  THE JURY FOUND

  AGAINST THE APPELLANTS. 

.          .          .          . 

     "THE CHARGING OF MR. BRESLER WITH HAVING COMMITTED BLACKMAIL

  COULD BE FOUND BY THE JURY (AS IT WAS) TO CHARGE HIM WITH THE

  COMMISSION OF A CRIME."  253 MD. 324, 351-352, 252 A.2D 755, 770

  (1969). 

THE COURT ALSO DEALT WITH THE OTHER PUBLICATIONS: 

     "IN ADDITION TO THE PUBLICATIONS THAT MR. BRESLER HAD
COMMITTED

  BLACKMAIL, THERE WERE PUBLICATIONS THAT HE HAD ENGAGED IN 'AN

  UNETHICAL TRADE,' HAS BEEN GUILTY OF 'SKULDUGGERY,' HAD HAD LEGAL

  PROCEEDINGS 'STARTED AGAINST HIM FOR FAILURE TO MAKE CONSTRUCTION

  CORRECTIONS IN ACCORDANCE WITH COUNTY STANDARDS.'  THESE

  ALLEGATIONS WERE INJURIOUS TO MR. BRESLER IN HIS BUSINESS AS A

  CONTRACTOR AND WERE LIBELOUS PER SE."  ID., AT 354, 252 A.2D,AT

 772. 

AS FOR THE ISSUE OF MALICE, THE COURT OF APPEALS NOTED THAT THE
NEWSPAPER KNEW THE BLACKMAIL CHARGE WAS FALSE IN THE CRIMINAL SENSE. 
WITH REFERENCE TO THE CHARGE OF "SKULDUGGERY" THE COURT POINTED OUT
THAT THE NEWSPAPER HAD NOT QUOTED ANOTHER SOURCE IN USING THAT WORD;
RATHER, IT WAS THE PUBLISHERS' OWN CHARACTERIZATION OF THE EVENTS. 

"THERE IS LITTLE DOUBT THAT THE WORD 'SKULDUGGERY' WAS INTENDED TO
INDICATE DISHONEST CONDUCT ON THE PART OF BRESLER AND TO HOLD HIM UP TO
RIDICULE AND CONTEMPT . . . . THE JURY COULD PROPERLY CONCLUDE THAT THE
REPORTS OF THE HEARING WERE NOT ACCURATELY REPORTED AND WERE, ALSO,
PUBLISHED WITH A KNOWLEDGE OF THEIR FALSITY OR WITH SERIOUS DOUBT OF
THEIR TRUTHFULNESS."  ID., AT 360, 252 A.2D,AT 775.  THE COURT ALSO
HELD THAT THE ALLEGATIONS THAT HOMEOWNERS HAD STARTED LEGAL PROCEEDINGS
AGAINST BRESLER IN REGARD TO CONSTRUCTION DEFECTS IN THEIR HOMES BUILT
BY HIM HAD BEEN MADE WITH RECKLESS DISREGARD FOR THE TRUTH. 

IN REVERSING THE MARYLAND COURT OF APPEALS, THE COURT DOES NOT DENY
THAT THE CONSTITUTION WOULD PERMIT RECOVERY FOR CHARGING THE CRIME OF
BLACKMAIL, OR EVEN FOR FALSELY ACCUSING ONE OF "BLACKMAIL" IN A
NONCRIMINAL BUT DEROGATORY SENSE "INJURIOUS TO THE PRIVATE CHARACTER OR
CREDIT OF THE PERSON."  THE COURT DOES NOT DENY THAT THE JURY WAS TOLD
IT HAD THE AUTHORITY TO DECIDE IN WHAT SENSE A WORD WAS USED OR
UNDERSTOOD, NOR DOES THE COURT QUESTION THE CONCLUSION OF THE COURT OF
APPEALS THAT THE JURY HAD FOUND THAT THE WORD HAD BEEN USED AND
UNDERSTOOD IN THE CRIMINAL SENSE.  WHAT THE COURT DOES HOLD ON THE COLD
RECORD IS THAT THE TRIAL JUDGE, THE JURY, AND THE MARYLAND COURT OF
APPEALS WERE QUITE WRONG IN CONCLUDING THAT "ORDINARY READERS" COULD
HAVE UNDERSTOOD THAT A CRIME HAD BEEN CHARGED.  IF THIS CONCLUSION
RESTS ON THE PROPOSITION THAT THERE WAS NO EVIDENCE TO SUPPORT A
JUDGMENT THAT THE CHARGE OF BLACKMAIL WOULD BE UNDERSTOOD BY THE
AVERAGE READER TO IMPORT CRIMINAL CONDUCT, I CANNOT AGREE.  THE VERY
FACT THAT THE WORD IS CONCEDED TO HAVE A DOUBLE MEANING IN NORMAL USAGE
IS ITSELF SOME EVIDENCE; AND WITHOUT CHALLENGING THE READING OF THE
JURY'S VERDICT BY THE MARYLAND COURT OF APPEALS, I CANNOT JOIN THE
MAJORITY CLAIM OF SUPERIOR INSIGHT WITH RESPECT TO HOW THE WORD
"BLACKMAIL" WOULD BE UNDERSTOOD BY THE ORDINARY READER IN GREENBELT,
MARYLAND. 

ALTHOUGH THE COURT DOES NOT SO HOLD, ARGUABLY THE NEWSPAPER SHOULD
NOT BE LIABLE IF IT HAD NO INTENTION OF CHARGING A CRIME AND HAD A GOOD
FAITH, NONRECKLESS BELIEF THAT IT WAS NOT DOING SO.  SHOULD NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964), BE EXTENDED TO PRECLUDE
LIABILITY FOR INJURY TO REPUTATION CAUSED BY EMPLOYING WORDS OF DOUBLE
MEANING, ONE OF WHICH IS LIBELOUS, WHENEVER THE PUBLISHER CLAIMS IN
GOOD FAITH TO HAVE INTENDED THE INNOCENT MEANING?  I THINK NOT.  THE
NEW YORK TIMES CASE WAS AN EFFORT TO EFFECTUATE THE POLICIES OF THE
FIRST AMENDMENT BY RECOGNIZING THE DIFFICULTIES OF ASCERTAINING THE
TRUTH OF ALLEGATIONS ABOUT A PUBLIC OFFICIAL WHOM THE NEWSPAPER IS
INVESTIGATING WITH AN EYE TO PUBLICATION.  ABSENT PROTECTION FOR THE
NONRECKLESS PUBLICATION OF "FACTS" THAT SUBSEQUENTLY PROVE TO BE FALSE,
THE DANGER IS THAT LEGITIMATE NEWS AND COMMUNICATION WILL BE
SUPPRESSED.  BUT IT IS QUITE A DIFFERENT THING, NOT INVOLVING THE SAME
DANGER OF SELF-CENSORSHIP, TO IMMUNIZE PROFESSIONAL COMMUNICATORS FROM
LIABILITY FOR THEIR USE OF AMBIGUOUS LANGUAGE AND THEIR FAILURE TO
GUARD AGAINST THE POSSIBILITY THAT WORDS KNOWN TO CARRY TWO MEANINGS,
ONE OF WHICH IMPUTES COMMISSION OF A CRIME, MIGHT SERIOUSLY DAMAGE THE
OBJECT OF THEIR COMMENT IN THE EYES OF THE AVERAGE READER.  I SEE NO
REASON WHY THE MEMBERS OF A SKILLED CALLING SHOULD NOT BE HELD TO THE
STANDARD OF THEIR CRAFT AND ASSUME THE RISK OF BEING MISUNDERSTOOD-- IF
THEY ARE-- BY THE ORDINARY READER OF THEIR PUBLICATIONS.  IF IT IS
THOUGHT THAT THE FIRST AMENDMENT REQUIRES MORE PROTECTION FOR THE MEDIA
IN THIS RESPECT IN ACCURATELY REPORTING EVENTS AND STATEMENTS OCCURRING
AT OFFICIAL MEETINGS, IT WOULD BE PREFERABLE DIRECTLY TO CARVE OUT A
WIDER PRIVILEGE FOR SUCH REPORTING. 

I AGREE WITH THE COURT THAT THERE WAS ERROR IN THE INSTRUCTIONS
CONCERNING MALICE.  THE ERROR, HOWEVER, IS IRRELEVANT TO THE
"BLACKMAIL" PHASE OF THIS CASE AS I VIEW IT:  IF ONE ASSUMES THAT THE
JURY FOUND THAT THE CRIME OF BLACKMAIL WAS CHARGED, "MALICE" IS
CONCEDED, SINCE THE DEFENDANTS ADMITTEDLY KNEW SUCH A CHARGE WAS
FALSE. 

NEVERTHELESS, THE JURY RETURNED A GENERAL VERDICT; IT MIGHT HAVE
FOUND THAT THE BLACKMAIL STATEMENT DID NOT IMPUTE A CRIME, BUT THAT THE
OTHER DAMAGING STATEMENTS PUBLISHED BY THE NEWSPAPER WERE LIBELOUS. 
INDEED, THIS WAS THE MOST LIKELY COURSE FOR THE JURY TO HAVE TAKEN IF
THE COURT IS CORRECT THAT THERE WAS SO LITTLE REASON FOR BASING
LIABILITY ON THE BLACKMAIL ALLEGATION.  GIVEN THIS POSSIBILITY, THE
ERROR IN THE INSTRUCTIONS REQUIRES REVERSAL OF THE JUDGMENT.  STROMBERG
V. CALIFORNIA, 283 U.S. 359 (1931). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURS IN
THE JUDGMENT OF THE COURT FOR THE REASONS SET OUT IN MR. JUSTICE
BLACK'S CONCURRING OPINION IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254, 293 (1964), IN HIS CONCURRING AND DISSENTING OPINION IN CURTIS
PUBLISHING CO. V. BUTTS, 388 U.S. 130, 170 (1967), AND IN MR. JUSTICE
DOUGLAS' CONCURRING OPINION IN GARRISON V. LOUISIANA, 379 U.S. 64, 80
(1964). 

ROGER A. CLARK ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

ABRAHAM CHASANOW ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS HOWARD S. CHASANOW. 
..END :












NLRB V. RAYTHEON CO., 398 U.S. 25 


       NATIONAL LABOR RELATIONS BOARD V. RAYTHEON CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 440.  ARGUED FEBRUARY 26, 1970-- DECIDED MAY 18, 1970. 


WHERE A NATIONAL LABOR RELATIONS BOARD ORDER SETS ASIDE A
REPRESENTATION ELECTION BECAUSE OF AN EMPLOYER'S UNFAIR LABOR PRACTICES
AND PROSCRIBES SUCH CONDUCT IN THE FUTURE, JUDICIAL PROCEEDINGS TO
ENFORCE THE ORDER ARE NOT RENDERED MOOT BY AN INTERVENING VALID
ELECTION.  PP. 26-28. 

408 F.2D 681, REVERSED AND REMANDED. 

OPINION OF THE COURT BY MR. JUSTICE MARSHALL, ANNOUNCED BY MR.
JUSTICE STEWART. 

THIS CASE WAS BROUGHT HERE ON CERTIORARI BY THE NATIONAL LABOR
RELATIONS BOARD FOR REVIEW OF THE DISMISSAL OF ITS PETITION FOR
ENFORCEMENT OF A CEASE-AND-DESIST ORDER FORBIDDING CERTAIN CONDUCT OF
THE RAYTHEON COMPANY FOUND TO BE IN VIOLATION OF SEC. 8(A)(1) OF THE
NATIONAL LABOR RELATIONS ACT, 29 U.S.C. 158(A)(1). 

AFTER IT LOST A REPRESENTATION ELECTION CONDUCTED BY THE BOARD ON
FEBRUARY 4, 1965, THE INTERNATIONAL UNION OF ELECTRICAL, RADIO AND
MACHINE WORKERS, AFL-CIO, FILED OBJECTIONS TO THE ELECTION AND UNFAIR
LABOR PRACTICE CHARGES, BOTH BASED ON PRE-ELECTION MISCONDUCT OF THE
COMPANY.  ON OCTOBER 19, 1965, AN UNFAIR LABOR PRACTICE COMPLAINT
ISSUED ALLEGING VIOLATIONS OF SEC. 8(A)(1).  THE PROCEEDINGS ON THAT
CHARGE WERE CONSOLIDATED WITH THE OBJECTIONS TO THE ELECTION CASE, AND
A HEARING WAS HELD BEFORE A TRIAL EXAMINER.  THEREAFTER, ON OCTOBER 5,
1966, THE BOARD RENDERED ITS DECISION, ORDERING THAT A NEW ELECTION BE
HELD AND THAT THE COMPANY CEASE AND DESIST CERTAIN ANTI-UNION
ACTIVITY. 

ON FEBRUARY 8, 1968, PURSUANT TO SEC. 10(E) OF THE ACT, 29 U.S.C.
160(E), THE BOARD FILED A PETITION IN THE COURT OF APPEALS FOR THE
NINTH CIRCUIT SEEKING ENFORCEMENT OF ITS UNFAIR LABOR PRACTICE ORDER. 
THE COMPANY ANSWERED, URGING THAT ENFORCEMENT BE DENIED ON THE MERITS
AND ON THE GROUND THAT THE PROCEEDINGS WERE MOOT BECAUSE A SECOND
ELECTION HAD BEEN HELD IN THE INTERIM.  AFTER THE CASE WAS BRIEFED AND
ARGUED ON THE MERITS, THE COMPANY CALLED TO THE ATTENTION OF THE COURT
THAT YET A THIRD ELECTION HAD BEEN HELD AND THAT THIS TIME THE RESULT
(A MAJORITY VOTE FOR "NO UNION") HAD BEEN CERTIFIED BY THE BOARD.  THE
QUESTION WHETHER THIS INTERVENING ELECTION HAD MOOTED THE CASE WAS
BRIEFED ON ALL SIDES; AND, ON THE AUTHORITY OF ITS EARLIER DECISION IN
GENERAL ENGINEERING, INC. V. NLRB, 311 F.2D 570 (C.A. 9TH CIR. 1962),
THE COURT OF APPEALS DISMISSED THE PROCEEDINGS WITH A BRIEF PER
CURIAM.  408 F.2D 681 (C.A. 9TH CIR. 1969).  WE GRANTED CERTIORARI, 396
U.S. 900 (1969), AND WE REVERSE. 

AS STATED BY THE COURT OF APPEALS, THE GROUND UPON WHICH THE
PETITION WAS DISMISSED WAS "THAT SINCE (IT WAS) FILED THE BOARD HAS
HELD A NEW REPRESENTATION ELECTION AND CERTIFIED THE RESULT."  THUS,
WITHOUT MORE, THE COURT FOLLOWED ITS DECISION IN GENERAL ENGINEERING
THAT AN INTERVENING ELECTION "MAKES MOOT ALL PORTIONS OF THE ORDER
UNDER REVIEW WHICH RELATE TO THE REPRESENTATION CASE."  311 F.2D,AT
572.  WE CANNOT AGREE TO THE AUTOMATIC EFFECT ACCORDED IN GENERAL
ENGINEERING TO A LATER VALID ELECTION AND RATHER FIND CORRECT THE
DECISIONS OF THE TWO CIRCUITS THAT HAVE SPECIFICALLY REFUSED TO ADOPT
THE REASONING OF THAT CASE.  NLRB V. METALAB-LABCRAFT, 367 F.2D 471,
(C.A. 4TH CIR. 1966); NLRB V. MARSH SUPERMARKETS, INC., 327 F.2D 109
(C.A. 7TH CIR. 1963); CF. NLRB V. CLARK BROS., 163 F.2D 373 (C.A. 2D
CIR. 1947). 

IN NLRB V. MEXIA TEXTILE MILLS, 339 U.S. 563, 567-568 (1950), THIS
COURT HELD: 

   "WE THINK IT PLAIN FROM THE CASES THAT THE EMPLOYER'S

 COMPLIANCE WITH AN ORDER OF THE BOARD DOES NOT RENDER THE CAUSE

  MOOT, DEPRIVING THE BOARD OF ITS OPPORTUNITY TO SECURE

  ENFORCEMENT FROM AN APPROPRIATE COURT . . . . A BOARD ORDER

  IMPOSES A CONTINUING OBLIGATION; AND THE BOARD IS ENTITLED TO

  HAVE THE RESUMPTION OF THE UNFAIR PRACTICE BARRED BY AN

  ENFORCEMENT DECREE . . . . THE ACT DOES NOT REQUIRE THE BOARD TO

  PLAY HIDE-AND-SEEK WITH THOSE GUILTY OF UNFAIR LABOR PRACTICES." 

PROPERLY VIEWED, THIS HOLDING CONTROLS THE PRESENT CASE.  THE LATER
ELECTION AND CERTIFICATION HERE ARE SIMPLY EVIDENCE THAT THE COMPANY
COMPLIED WITH THE BOARD ORDER DURING THE PENDENCY OF THE ELECTION.  THE
ACT, HOWEVER, IS NOT DESIGNED MERELY TO PROTECT A PARTICULAR ELECTION
OR ORGANIZATIONAL CAMPAIGN.  IT IS DESIGNED TO PROTECT EMPLOYEES IN THE
EXERCISE OF THEIR ORGANIZATIONAL RIGHTS, AND THAT PROTECTION CANNOT BE
AFFECTED MERELY BECAUSE A PARTICULAR LABOR ORGANIZATION HAS CHOSEN AN
IMMEDIATE ELECTION RERUN RATHER THAN TO AWAIT ENFORCEMENT OF THE BOARD
ORDER. 

UNDOUBTEDLY, AS THE COURT RECOGNIZED IN NLRB V. JONES & LAUGHLIN
STEEL CORP., 331 U.S. 416, 428 (1947), THERE ARE SITUATIONS WHERE AN
ENFORCEMENT PROCEEDING WILL BECOME MOOT BECAUSE A PARTY CAN ESTABLISH
THAT "THERE IS NO REASONABLE EXPECTATION THAT THE WRONG WILL BE
REPEATED."  UNITED STATES V. W. T. GRANT CO., 345 U.S. 629, 633
(1953).  BUT THIS IS NOT SUCH A CASE.  NOTHING IN THE RECORD HERE SHOWS
THAT THE SPECIFIC ACTS COMPLAINED OF HAVE NOT BEEN REPEATED OR GIVES
ANY ASSURANCE THAT THEY WILL NOT BE REPEATED IN THE FUTURE.  CF. UNITED
STATES V. CONCENTRATED PHOSPHATE EXPORT ASSN., 393 U.S. 199, 203
(1968); WIRTZ V. LOCAL, 153, GLASS BLOWERS ASSN., 389 U.S. 463, 474-475
(1968). 

THE BOARD, ESTABLISHED BY CONGRESS WITH PRIMARY RESPONSIBILITY FOR
THE PROTECTION OF THE PUBLIC INTEREST IN THIS AREA, SEE NLRB V. J. H.
RUTTER-REX MFG. CO., 396 U.S. 258 (1969), HAS DETERMINED THAT THE
COMPANY ENGAGED IN ILLEGAL ACTIVITIES AND THAT A REMEDIAL ORDER IS
CALLED FOR.  UNDER THESE CIRCUMSTANCES, THE EMPLOYEES CANNOT BE DENIED
THE PROTECTION OF THE ORDER (WITH THE POSSIBLE SANCTION OF CONTEMPT
PROCEEDINGS FOR VIOLATIONS) IN THE ABSENCE OF A DECISION ON THE
MERITS.  "(IF THE BOARD'S ORDER IS JUSTIFIED, IT IS ENTITLED TO HAVE IT
ENFORCED AS A MEANS OF INSURING THAT IN FUTURE ELECTIONS THE CONDUCT
MAY NOT BE REPEATED."  NLRB V. MARSH SUPERMARKETS, INC., SUPRA, AT
111. 

IN THIS COURT, THE COMPANY ESSENTIALLY ADMITS THAT THE JUDGMENT
BELOW CANNOT BE "BASED ON MOOTNESS IN ITS CLASSICAL SENSE" AND INSTEAD
ATTEMPTS TO SUPPORT IT ON OTHER GROUNDS.  THUS, THE COMPANY SAYS-- AND
WE AGREE-- THAT IT IS THE COURTS OF APPEALS THAT ARE CHARGED WITH THE
PRIMARY AND USUAL RESPONSIBILITY FOR GRANTING OR DENYING ENFORCEMENT OF
BOARD ORDERS.  UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474 (1951). 
FROM THIS PROPOSITION AND THE FACT THAT THE COURT OF APPEALS HAD BEFORE
IT THE ENTIRE RECORD IN THE CASE, THE COMPANY URGES THAT THE DECISION
BELOW "SHOULD BE CONSTRUED AS A DETERMINATION, IN THE EXERCISE OF THE
DISCRETION VESTED IN THE COURT BY SECTION 10(E) OF THE ACT, THAT ON THE
BASIS OF ALL OF THE CIRCUMSTANCES, INCLUDING THE SUBSEQUENT
CERTIFICATION, ENFORCEMENT WAS INAPPROPRIATE." 

WE NEED NOT PAUSE TO CONSIDER WHETHER SUCH A DETERMINATION WOULD
HAVE BEEN PROPER ON THE FACTS OF THIS CASE.  THE SIMPLE ANSWER IS THAT
THE COURT OF APPEALS DID NOT PASS UPON THE MERITS OF THE BOARD'S
PETITION FOR ENFORCEMENT.  WHILE THE COMPANY IS, OF COURSE, FREE TO
ARGUE ON REMAND EITHER THAT THERE WAS NO VIOLATION, OR THAT IF THERE
WAS IT WAS SO MARGINAL AS NOT TO JUSTIFY JUDICIAL ENFORCEMENT, OR BOTH,
THESE QUESTIONS ARE FOR THE COURT OF APPEALS IN THE FIRST INSTANCE.  WE
WILL NOT PASS ON HOW THAT COURT MIGHT HAVE REGARDED THE CASE HAD IT NOT
ERRONEOUSLY CONCLUDED THAT THE ELECTION AND CERTIFICATION MOOTED THE
PROCEEDINGS. 

THE JUDGMENT OF THE COURT OF APPEALS DISMISSING THE PETITION FOR
ENFORCEMENT IS REVERSED AND THE CASE IS REMANDED FOR CONSIDERATION OF
THE PETITION ON ITS MERITS. 

              IT IS SO ORDERED. 

DEPUTY ATTORNEY GENERAL KLEINDIENST ARGUED THE CAUSE FOR PETITIONER. 
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, PETER L. STRAUSS, ARNOLD
ORDMAN, DOMINICK L. MANOLI, NORTON J. COME, AND LINDA SHER. 

CHARLES H. RESNICK ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS ALFRED C. PHILLIPS. 
..END :



WALZ V. TAX COMMISSION, 397 U.S., 664 


       WALZ V. TAX COMMISSION OF THE CITY OF NEW YORK

      APPEAL FROM THE COURT OF APPEALS OF THE STATE OF NEW YORK

        NO. 135.  ARGUED NOVEMBER 19, 1969-- DECIDED MAY 4, 1970 


APPEALLANT PROPERTY OWNER UNSUCCESSFULLY SOUGHT AN INJUNCTION IN THE
NEW YORK CITY TAX COMMISSION FROM GRANTING PROPERTY TAX EXEMPTIONS TO
RELIGIOUS ORGANIZATIONS FOR PROPERTIES USED SOLELY FOR RELIGIOUS
WORSHIP, AS AUTHORIZED BY THE STATE CONSTITUTION AND THE IMPLEMENTING
STATUTE PROVIDING FOR TAX EXEMPTIONS FOR PROPERTY USED EXCLUSIVELY FOR
RELIGIOUS, EDUCATIONAL, OR CHARITABLE PURPOSES.  APPELLANT CONTENDED
THAT THE EXEMPTIONS AS APPLIED TO RELIGIOUS BODIES VIOLATED PROVISIONS
PROHIBITING ESTABLISHMENT OF RELIGION UNDER THE FIRST AND FOURTEENTH
AMENDMENTS.  HELD: 

1.  THE FIRST AMENDMENT TOLERATES NEITHER GOVERNMENTALLY ESTABLISHED
RELIGION NOR GOVERNMENTAL INTERFERENCE WITH RELIGION.  PP. 667-672. 

2.  THE LEGISLATIVE PURPOSE OF TAX EXEMPTIONS IS NOT AIMED AT
ESTABLISHING, SPONSORING, OR SUPPORTING RELIGION, AND NEW YORK'S
LEGISLATION SIMPLY SPARES THE EXERCISE OF RELIGION FROM THE BURDEN OF
PROPERTY TAXATION LEVIED ON PRIVATE PROFIT INSTITUTIONS.  PP. 672-674. 

3.  THE TAX EXEMPTION CREATES ONLY A MINIMAL AND REMOTE INVOLVEMENT
BETWEEN CHURCH AND STATE, FAR LESS THAN TAXATION OF CHURCHES WOULD
ENTAIL, AND IT RESTRICTS THE FISCAL RELATIONSHIP BETWEEN THEM, THUS
TENDING TO COMPLEMENT AND REINFORCE THE DESIRED SEPARATION INSULATING
EACH FROM THE OTHER.  PP. 674-676. 

4.  FREEDOM FROM TAXATION FOR TWO CENTURIES HAS NOT LED TO AN
ESTABLISHED CHURCH OR RELIGION AND ON THE CONTRARY HAS HELPED TO
GUARANTEE THE FREE EXERCISE OF ALL FORMS OF RELIGIONS BELIEF.  PP. 676
680. 

24 N.Y.2D 30, 246 N.E.2D 517, AFFIRMED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

APPELLANT, OWNER OF REAL ESTATE IN RICHMOND COUNTY, NEW YORK, SOUGHT
AN INJUNCTION IN THE NEW YORK COURTS TO PREVENT THE NEW YORK CITY TAX
COMMISSION FROM GRANTING PROPERTY TAX EXEMPTIONS TO RELIGIOUS
ORGANIZATIONS FOR RELIGIOUS PROPERTIES USED SOLELY FOR RELIGIOUS
WORSHIP.  THE EXEMPTION FROM STATE TAXES IS AUTHORIZED BY ART. 16, SEC.
1, OF THE NEW YORK CONSTITUTION, WHICH PROVIDES IN RELEVANT PART: 

     "EXEMPTIONS FROM TAXATION MAY BE GRANTED ONLY BY GENERAL
LAWS. 

  EXEMPTIONS MAY BE ALTERED OR REPEALED EXCEPT THOSE EXEMPTING REAL

  OR PERSONAL PROPERTY USED EXCLUSIVELY FOR RELIGIOUS, EDUCATIONAL

  OR CHARITABLE PURPOSES AS DEFINED BY LAW AND OWNED BY ANY

  CORPORATION OR ASSOCIATION ORGANIZED OR CONDUCTED EXCLUSIVELY FOR

  ONE OR MORE OF SUCH PURPOSES AND NOT OPERATING FOR PROFIT."  /1/ 

THE ESSENCE OF APPELLANT'S CONTENTION WAS THAT THE NEW YORK CITY TAX
COMMISSION'S GRANT OF AN EXEMPTION TO CHURCH PROPERTY INDIRECTLY
REQUIRES THE APPELLANT TO MAKE A CONTRIBUTION TO RELIGIOUS BODIES AND
THEREBY VIOLATES PROVISIONS PROHIBITING ESTABLISHMENT OF RELIGION UNDER
THE FIRST AMENDMENT WHICH UNDER THE FOURTEENTH AMENDMENT IS BINDING ON
THE STATES.  /2/ 

APPELLEE'S MOTION FOR SUMMARY JUDGMENT WAS GRANTED AND THE APPELLEE
DIVISION OF THE NEW YORK SUPREME COURT, AND THE NEW YORK COURT OF
APPEALS AFFIRMED.  WE NOTED PROBABLE JURISDICTION, 395 U.S. 957 (1969),
AND AFFIRM. 

        I 

PRIOR OPINIONS OF THIS COURT HAVE DISCUSSED THE DEVELOPMENT AND
HISTORICAL BACKGROUND OF THE FIRST AMENDMENT IN DETAIL.  SEE EVERSON V.
BOARD OF EDUCATION, 330 U.S. 1 (1947); ENGEL V. VITALE, 370 U.S. 421
(1962).  IT WOULD THEREFORE SERVE NO USEFUL PURPOSE TO REVIEW IN DETAIL
THE BACKGROUND OF THE ESTABLISHMENT AND FREE EXERCISE CLAUSES OF THE
FIRST AMENDMENT OR TO RESTATE WHAT THE COURT'S OPINIONS HAVE REFLECTED
OVER THE YEARS. 

IT IS SUFFICIENT TO NOTE THAT FOR THE MEN WHO WROTE THE RELIGION
CLAUSES OF THE FIRST AMENDMENT THE "ESTABLISHMENT" OF A RELIGION
CONNOTED SPONSORSHIP, FINANCIAL SUPPORT, AND ACTIVE INVOLVEMENT OF THE
SOVEREIGN IN RELIGIOUS ACTIVITY.  IN ENGLAND, AND IN SOME COLONIES AT
THE TIME OF THE SEPARATION IN 1776, THE CHURCH OF ENGLAND WAS SPONSORED
AND SUPPORTED BY THE CROWN AS A STATE, OR ESTABLISHED, CHURCH; IN OTHER
COUNTRIES "ESTABLISHMENT" MEANS SPONSORSHIP BY THE SOVEREIGN OF THE
LUTHERAN OR CATHOLIC CHURCH.  SEE ENGEL V. VITALE, 370 U.S.,AT 428 N.
10.  SEE GENERALLY C. ANGIEAU, A. DOWNEY, & E. ROBERTS, FREEDOM FROM
FEDERAL ESTABLISHMENT (1964).  THE EXCLUSIVITY OF ESTABLISHED CHURCHES
IN THE 17TH AND 18TH CENTURIES, OF COURSE, WAS OFTEN CARRIED TO
PROHIBITION OF OTHER FORMS OF WORSHIP.  SEE EVERSON V. BOARD OF
EDUCATION, 330 U.S.,AT 9-11; L. PFEFFER, CHURCH, STATE AND FREEDOM 71
ET SEQ. (1967). 

THE ESTABLISHMENT AND FREE EXERCISE CLAUSES OF THE FIRST AMENDMENT
ARE NOT THE MOST PRECISELY DRAWN PORTIONS OF THE CONSTITUTION.  THE
SWEEP OF THE ABSOLUTE PROHIBITIONS IN THE RELIGION CLAUSES MAY HAVE
BEEN CALCULATED; BUT THE PURPOSE WAS TO STATE AN OBJECTIVE, NOT TO
WRITE A STATUTE.  IN ATTEMPTING TO ARTICULATE THE SCOPE OF THE TWO
RELIGION CLAUSES, THE COURT'S OPINIONS REFLECT THE LIMITATIONS INHERENT
IN FORMULATING GENERAL PRINCIPLES ON A CASE-BY-CASE BASIS.  THE
CONSIDERABLE INTERNAL INCONSISTENCY IN THE OPINIONS OF THE COURT
DERIVES FROM WHAT, IN RETROSPECT, MAY HAVE BEEN TOO SWEEPING UTTERANCES
ON ASPECTS OF THESE CLAUSES THAT SEEMED CLEAR IN RELATION TO THE
PARTICULAR CASES BUT HAVE LIMITED MEANING AS GENERAL PRINCIPLES. 

THE COURT HAS STRUGGLED TO FIND A NEUTRAL COURSE BETWEEN THE TWO
RELIGION CLAUSES, BOTH OF WHICH ARE CAST IN ABSOLUTE TERMS, AND EITHER
OF WHICH, IF EXPANDED TO A LOGICAL EXTREME, WOULD TEND TO CLASH WITH
THE OTHER.  FOR EXAMPLE, IN ZORACH V. CLAUSON, 343 U.S. 306 (1952), MR.
JUSTICE DOUGLAS, WRITING FOR THE COURT, NOTED: 

"THE FIRST AMENDMENT, HOWEVER, DOES NOT SAY THAT IN EVERY AND ALL
RESPECTS THERE SHALL BE A SEPARATION OF CHURCH AND STATE."  ID., AT
312.  "WE SPONSOR AN ATTITUDE ON THE PART OF GOVERNMENT THAT SHOWS NO
PARTIALITY TO ANY ONE GROUP AND THAT LETS EACH FLOURISH ACCORDING TO
THE ZEAL OF ITS ADHERENTS AND THE APPEAL OF ITS DOGMA."  ID., AT 313. 

MR. JUSTICE HARLAN EXPRESSED SOMETHING OF THIS IN HIS DISSENT IN
SHERBERT V. VERNER, 374 U.S. 398 (1963), SAYING THAT THE CONSTITUTIONAL
NEUTRALITY IMPOSED ON US 

"IS NOT SO NARROW A CHANNEL THAT THE SLIGHTEST DEVIATION FROM AN
ABSOLUTELY STRAIGHT COURSE LEADS TO CONDEMNATION."  ID., AT 422. 

THE COURSE OF CONSTITUTIONAL NEUTRALITY IN THIS AREA CANNOT BE AN
ABSOLUTE STRAIGHT LINE; RIGIDITY COULD WELL DEFEAT THE BASIC PURPOSE OF
THESE PROVISIONS, WHICH IS TO INSURE THAT NO RELIGION BE SPONSORED OR
FAVORED, NONE COMMANDED, AND NONE INHIBITED.  THE GENERAL PRINCIPLE
DEDUCIBLE FROM THE FIRST AMENDMENT AND ALL THAT HAS BEEN SAID BY THE
COURT IS THIS:  THAT WE WILL NOT TOLERATE EITHER GOVERNMENTALLY
ESTABLISHED RELIGION OR GOVERNMENTAL INTERFERENCE WITH RELIGION.  SHORT
OF THOSE EXPRESSLY PROSCRIBED GOVERNMENTAL ACTS THERE IS ROOM FOR PLAY
IN THE JOINTS PRODUCTIVE OF A BENEVOLENT NEUTRALITY WHICH WILL PERMIT
RELIGIOUS EXERCISE TO EXIST WITHOUT SPONSORSHIP AND WITHOUT
INTERFERENCE. 

EACH VALUE JUDGMENT UNDER THE RELIGION CLAUSES MUST THEREFORE TURN
ON WHETHER PARTICULAR ACTS IN QUESTION ARE INTENDED TO ESTABLISH OR
INTERFERE WITH RELIGIOUS BELIEFS AND PRACTICES OR HAVE THE EFFECT OF
DOING SO.  ADHERENCE TO THE POLICY OF NEUTRALITY THAT DERIVES FROM AN
ACCOMMODATION OF THE ESTABLISHMENT AND FREE EXERCISE CLAUSES HAS
PREVENTED THE KIND OF INVOLVEMENT THAT WOULD TIP THE BALANCE TOWARD
GOVERNMENT CONTROL OF CHURCHES OR GOVERNMENTAL RESTRAINT ON RELIGIONS
PRACTICE. 

ADHERENTS OF PARTICULAR FAITHS AND INDIVIDUAL CHURCHES FREQUENTLY
TAKE STRONG POSITIONS ON PUBLIC ISSUES INCLUDING, AS THIS CASE REVEALS
IN THE SEVERAL BRIEFS AMICI, VIGOROUS ADVOCACY OF LEGAL OR
CONSTITUTIONAL POSITIONS.  OF COURSE, CHURCHES AS MUCH AS SECULAR
BODIES AND PRIVATE CITIZENS HAVE THAT RIGHT.  NO PERFECT OR ABSOLUTE
SEPARATION IS REALLY POSSIBLE; THE VERY EXISTENCE OF THE RELIGION
CLAUSES IS AN INVOLVEMENT OF SORTS-- ONE THAT SEEKS TO MARK BOUNDARIES
TO AVOID EXCESSIVE ENTANGLEMENT. 

THE HAZARDS OF PLACING TOO MUCH WEIGHT ON A FEW WORDS OR PHRASES OF
THE COURT IS ABUNDANTLY ILLUSTRATED WITHIN THE PAGES OF THE COURT'S
OPINION IN EVERSON.  MR. JUSTICE BLACK, WRITING FOR THE COURT'S
MAJORITY, SAID THE FIRST AMENDMENT 

"MEANS AT LEAST THIS: NEITHER A STATE NOR THE FEDERAL GOVERNMENT CAN
. . . PASS LAWS WHICH AID ONE RELIGION, AID ALL RELIGIONS, OR PREFER
ONE RELIGION OVER ANOTHER."  330 U.S., AT 15.  YET HE HAD NO DIFFICULTY
IN HOLDING THAT: 

     "MEASURED BY THESE STANDARDS, WE CANNOT SAY THAT THE FIRST

  AMENDMENT PROHIBITS NEW JERSEY FROM SPENDING TAX-RAISED FUNDS TO

  PAY THE BUS FARES OF PAROCHIAL SCHOOL PUPILS AS A PART OF A

  GENERAL PROGRAM UNDER WHICH IT PAYS THE FARES OF PUPILS ATTENDING

  PUBLIC AND OTHER SCHOOLS.  IT IS UNDOUBTEDLY TRUE THAT CHILDREN

  ARE HELPED TO GET TO CHURCH SCHOOLS.  THERE IS EVEN A POSSIBILITY

  THAT SOME OF THE CHILDREN MIGHT NOT BE SENT TO THE CHURCH SCHOOLS

  IF THE PARENTS WERE COMPELLED TO PAY THEIR CHILDREN'S BUS FARES

  OUT OF THEIR OWN POCKETS . . . . "  ID., AT 17. 

THE COURT DID NOT REGARD SUCH "AID" TO SCHOOLS TEACHING A PARTICULAR
RELIGIOUS FAITH AS ANY MORE A VIOLATION OF THE ESTABLISHMENT CLAUSE
THAN PROVIDING "STATE-PAID POLICEMEN, DETAILED TO PROTECT CHILDREN . .
. (AT THE SCHOOLS) FROM THE VERY REAL HAZARDS OF TRAFFIC . . . . "
IBID. 

MR. JUSTICE JACKSON, IN PERPLEXED DISSENT IN EVERSON, NOTED THAT 

"THE UNDERTONES OF THE OPINION, ADVOCATING COMPLETE AND
UNCOMPROMISING SEPARATION . . . SEEM UTTERLY DISCORDANT WITH ITS
CONCLUSION . . . . "  ID., AT 19.  PERHAPS SO.  ONE CAN SYMPATHIZE WITH
MR. JUSTICE JACKSON'S LOGICAL ANALYSIS BUT AGREE WITH THE COURT'S
EMINENTLY SENSIBLE AND REALISTIC APPLICATION OF THE LANGUAGE OF THE
ESTABLISHMENT CLAUSE.  IN EVERSON THE COURT DECLINED TO CONSTRUE THE
RELIGION CLAUSES WITH A LITERALNESS THAT WOULD UNDERMINE THE ULTIMATE
CONSTITUTIONAL OBJECTIVE AS ILLUMINATED BY HISTORY.  SURELY, BUS
TRANSPORTATION AND POLICE PROTECTION TO PUPILS WHO RECEIVE RELIGIONS
INSTRUCTION "AID" THAT PARTICULAR RELIGION TO MAINTAIN SCHOOLS THAT
PLAINLY TEND TO ASSURE FUTURE ADHERENTS TO A PARTICULAR FAITH BY HAVING
CONTROL OF THEIR TOTAL EDUCATION AT AN EARLY AGE.  NO RELIGIOUS BODY
THAT MAINTAINS SCHOOLS WOULD DENY THIS AS AN AFFIRMATIVE IF NOT
DOMINANT POLICY OF CHURCH SCHOOLS.  BUT IF AS IN EVERSON BUSES CAN BE
PROVIDED TO CARRY AND POLICEMENT TO PROTECT CHURCH SCHOOL PUPILS, WE
FAIL TO SEE HOW A BROADER RANGE OR POLICE AND FIRE PROTECTION GIVEN
EQUALLY TO ALL CHURCHES, ALONG WITH NONPROFIT HOSPITALS, ART GALLERIES,
AND LIBRARIES RECEIVING THE SAME TAX EXEMPTION, IS DIFFERENT FOR
PURPOSES OF THE RELIGION CLAUSES. 

SIMILARLY, MAKING TEXTBOOKS AVAILABLE TO PUPILS IN PAROCHIAL SCHOOLS
IN COMMON WITH PUBLIC SCHOOLS WAS SURELY AN "AID" TO THE SPONSORING
CHURCHES BECAUSE IT RELIEVED THOSE CHURCHES OF AN ENORMOUS AGGREGATE
COST FOR THOSE BOOKS.  SUPPLYING OF COSTLY TEACHING MATERIALS WAS NOT
SEEN EITHER AS MANIFESTING A LEGISLATIVE PURPOSE TO AID OR AS HAVING A
PRIMARY EFFECT OF AID CONTRAVENING THE FIRST AMENDMENT.  BOARD OF
EDUCATION V. ALLEN, 392 U.S. 236 (1968).  IN SO HOLDING THE COURT WAS
HEEDING BOTH ITS OWN PRIOR DECISIONS AND OUR RELIGIOUS TRADITION.  MR.
JUSTICE DOUGLAS, IN ZORACH V. CLAUSON, SUPRA, AFTER RECALLING THAT WE
"ARE A RELIGIOUS PEOPLE WHOSE INSTITUTIONS PRESUPPOSE A SUPREME BEING,"
WENT ON TO SAY: 

"WE MAKE ROOM FOR AS WIDE A VARIETY OF BELIEFS AND CREEDS AS THE
SPIRITUAL NEEDS OF MAN DEEM MECESSARY . . . . WHEN THE STATE ENCOURAGES
RELIGIOUS INSTRUCTION . . . IT FOLLOWS THE BEST OF OUR TRADITIONS.  FOR
IT THEN RESPECTS THE RELIGIOUS NATURE OF OUR PEOPLE AND ACCOMMODATES
THE PUBLIC SERVICE TO THEIR SPIRITUAL NEEDS."  343 U.S.,AT 313-314. 

WITH ALL THE RISKS INHERENT IN PROGRAMS THAT BRING ABOUT
ADMINISTRATIVE RELATIONSHIPS BETWEEN PUBLIC EDUCATION BODIES AND CHURCH
SPONSORED SCHOOLS, WE HAVE BEEN ABLE TO CHART A COURSE THAT PRESERVED
THE AUTONOMY AND FREEDOM OF RELIGIOUS BODIES WHILE AVOIDING ANY
SEMBLANCE OF ESTABLISHED RELIGION.  THIS IS A "TIGHT ROPE" AND ONE WE
HAVE SUCCESSFULLY TRAVERSED. 

        II 

THE LEGISLATIVE PURPOSE OF THE PROPERTY TAX EXEMPTION IS NEITHER THE
ADVANCEMENT NOR THE INHIBITION OF RELIGION; IT IS NEITHER SPONSORSHIP
NOR HOSTILITY.  NEW YORK, IN COMMON WITH THE OTHER STATES, HAS
DETERMINED THAT CERTAIN ENTITIES THAT EXIST IN A HARMONIOUS
RELATIONSHIP TO THE COMMUNITY AT LARGE, AND THAT FOSTER ITS "MORAL OR
MENTAL IMPROVEMENT," SHOULD NOT BE INHIBITED IN THEIR ACTIVITIES BY
PROPERTY TAXATION OR THE HAZARD OF LOSS OF THOSE PROPERTIES FOR
NONPAYMENT OF TAXES.  IT HAS NOT SINGLED OUT ONE PARTICULAR CHURCH OR
RELIGIOUS GROUP OR EVEN CHURCHES AS SUCH; RATHER, IT HAS GRANTED
EXEMPTION TO ALL HOUSES OF RELIGIOUS WORSHIP WITHIN A BROAD CLASS OF
PROPERTY OWNED BY NONPROFIT, QUASI-PUBLIC CORPORATIONS, WHICH INCLUDE
HOSPITALS, LIBRARIES, PLAYGROUNDS, SCIENTIFIC, PROFESSIONAL,
HISTORICAL, AND PATRIOTIC GROUPS.  THE STATE HAS AN AFFIRMATIVE POLICY
THAT CONSIDERS THESE GROUPS AS BENEFICIAL AND STABILIZING INFLUENCES IN
COMMUNITY LIFE AND FINDS THIS CLASSIFICATION USEFUL, DESIRABLE, AND IN
THE PUBLIC INTEREST.  QUALIFICATION FOR TAX EXEMPTION IS NOT PERPETUAL
OR IMMUTABLE; SOME TAX-EXEMPT GROUPS LOSE THAT STATUS WHEN THEIR
ACTIVITIES TAKE THEM OUTSIDE THE CLASSIFICATION AND NEW ENTITIES CAN
COME INTO BEING AND QUALIFY FOR EXEMPTION. 

GOVERNMENTS HAVE NOT ALWAYS BEEN TOLERANT OF RELIGIOUS ACTIVITY, AND
HOSTILITY TOWARD RELIGION HAS TAKEN MANY SHAPES AND FORMS-- ECONOMIC,
POLITICAL, AND SOMETIMES HARSHLY OPPRESSIVE.  GRANTS OF EXEMPTION
HISTORICALLY REFLECT THE CONCERN OF AUTHORS OF CONSTITUTIONS AND
STATUTES AS TO THE LATENT DANGERS INHERENT IN THE IMPOSITION OF
PROPERTY TAXES; EXEMPTION CONSTITUTES A REASONABLE AND BALANCED ATTEMPT
TO GUARD AGAINST THOSE DANGERS.  THE LIMITS OF PERMISSIBLE STATE
ACCOMMODATION TO RELIGION ARE BY NO MEANS CO-EXTENSIVE WITH THE
NONINTERFERENCE MANDATED BY THE FREE EXERCISE CLAUSE.  TO EQUATE THE
TWO WOULD BE TO DENY A NATIONAL HERITAGE WITH ROOTS IN THE REVOLUTION
ITSELF.  SEE SHERBERT V. VERNER, 374 U.S. 398, 423 (1963) (HARLAN, J.,
DISSENTING); BRAUNFELD V. BROWN, 366 U.S. 599, 608 (1961).  SEE
GENERALLY KAUPER, THE CONSTITUTIONALITY OF TAX EXEMPTIONS FOR RELIGIOUS
ACTIVITIES IN THE WALL BETWEEN CHURCH AND STATE 95 (D. OAKS ED. 1963). 
WE CANNOT READ NEW YORK'S STATUTE AS ATTEMPTING TO ESTABLISH RELIGION;
IT IS SIMPLY SPARING THE EXERCISE OF RELIGIOUN FROM THE BURDEN OF
PROPERTY TAXATION LEVIED ON PRIVATE PROFIT INSTITUTIONS. 

WE FIND IT UNNECESSARY TO JUSTIFY THE TAX EXEMPTION ON THE SOCIAL
WELFARE SERVICES OR "GOOD WORKS" THAT SOME CHURCHES PERFORM FOR
PARISHIONERS AND OTHERS-- FAMILY COUNSELLING, AID TO THE ELDERLY AND
THE INFIRM, AND TO CHILDREN.  CHURCHES VARY SUBSTANTIALLY IN THE SCOPE
OF SUCH SERVICES; PROGRAMS EXPAND OR CONTRACT ACCORDING TO RESOURCES
AND NEED.  AS PUBLIC-SPONSORED PROGRAMS ENLARGE, PRIVATE AID FROM THE
CHURCH SECTOR MAY DIMINISH.  THE EXTENT OF SOCIAL SERVICES MAY VARY,
DEPENDING ON WHETHER THE CHURCH SERVES AN URBAN OR RURAL, A RICH OR
POOR CONSTITUENCY.  TO GIVE EMPHASIS TO SO VARIABLE AN ASPECT OF THE
WORK OF RELIGIOUS BODIES WOULD INTRODUCE AN ELEMENT OF GOVERNMENTAL
EVALUATION AND STANDARDS AS TO THE WORTH OF PARTICULAR SOCIAL WELFARE
PROGRAMS, THUS PRODUCING A KIND OF CONTINUING DAY-TO-DAY RELATIONSHIP
WHICH THE POLICY OF NEUTRALITY SEEKS TO MINIMIZE.  HENCE, THE USE OF A
SOCIAL WELFARE YARDSTICK AS A SIGNIFICANT ELEMENT TO QUALIFY FOR TAX
EXEMPTION COULD CONCEIVABLY GIVE RISE TO CONFRONTATIONS THAT COULD
ESCALATE TO CONSTITUTIONAL DIMENSIONS.     DETERMINING THAT THE
LEGISLATIVE PURPOSE OF TAX EXEMPTION IS NOT AIMED AT ESTABLISHING,
SPONSORING, OR SUPPORTING RELIGION DOES NOT END THE INQUIRY, HOWEVER. 
WE MUST ALSO BE SURE THAT THE END RESULT-- THE EFFECT-- IS NOT AN
EXCESSIVE GOVERNMENT ENTANGLEMENT WITH RELIGION.  THE TEST IS
INESCAPABLY ONE OF DEGREE.  EITHER COURSE, TAXATION OF CHURCHES OR
EXEMPTION, OCCASIONS SOME DEGREE OF INVOLVEMENT WITH RELIGION. 
ELIMINATION OF EXEMPTION WOULD TEND TO EXPAND THE INVOLVEMENT OF
GOVERNMENT BY GIVING RISE TO TAX VALUATION OF CHURCH PROPERTY, TAX
LIENS, TAX FORECLOSURES, AND THE DIRECT CONFRONTATIONS AND CONFLICTS
THAT FOLLOW IN THE TRAIN OF THOSE LEGAL PROCESSES. 

GRANTING TAX EXEMPTIONS TO CHURCHES NECESSARILY OPERATES TO AFFORD
AN INDIRECT ECONOMIC BENEFIT AND ALSO GIVES RISE TO SOME, BUT YET A
LESSER, INVOLVEMENT THAN TAXING THEM.  IN ANALYZING EITHER ALTERNATIVE
THE QUESTIONS ARE WHETHER THE INVOLVEMENT IS EXCESSIVE, AND WHETHER IT
IS A CONTINUING ONE CALLING FOR OFFICIAL AND CONTINUING SURVEILLANCE
LEADING TO AN IMPERMISSIBLE DEGREE OF ENTANGLEMENT.  OBVIOUSLY A DIRECT
MONEY SUBSIDY WOULD BE A RELATIONSHIP PREGNANT WITH INVOLVEMENT AND, AS
WITH MOST GOVERNMENTAL GRANT PROGRAMS, COULD ENCOMPASS SUSTAINED AND
DETAILED ADMINISTRATIVE RELATIONSHIPS FOR ENFORCEMENT OF STATUTORY OR
ADMINISTRATIVE STANDARDS, BUT THAT IS NOT THIS CASE.  THE HAZARDS OF
CHURCHES SUPPORTING GOVERNMENT ARE HARDLY LESS IN THEIR POTENTIAL THAN
THE HAZARDS OF GOVERNMENT SUPPORTING CHURCHES; /3/  EACH RELATIONSHIP
CARRIES SOME INVOLVEMENT RATHER THAN THE DESIRED INSULATION AND
SEPARATION.  WE CANNOT IGNORE THE INSTANCES IN HISTORY WHEN CHURCH
SUPPORT OF GOVERNMENT LED TO THE KIND OF INVOLVEMENT WE SEEK TO AVOID. 

THE GRANT OF A TAX EXEMPTION IS NOT SPONSORSHIP SINCE THE GOVERNMENT
DOES NOT TRANSFER PART OF ITS REVENUE TO CHURCHES BUT SIMPLY ABSTAINS
FROM DEMANDING THAT THE CHURCH SUPPORT THE STATE.  NO ONE HAS EVER
SUGGESTED THAT TAX EXEMPTION HAS CONVERTED LIBRARIES, ART GALLERIES, OR
HOSPITALS INTO ARMS OF THE STATE OR PUT EMPLOYEES "ON THE PUBLIC
PAYROLL."  THERE IS NO GENUINE NEXUS BETWEEN TAX EXEMPTION AND
ESTABLISHMENT OF RELIGION.  AS MR. JUSTICE HOLMES COMMENTED IN A
RELATED CONTEXT "A PAGE OF HISTORY IS WORTH A VOLUME OF LOGIC."  NEW
YORK TRUST CO. V. EISNER, 256 U.S. 345, 349 (1921).  THE EXEMPTION
CREATES ONLY A MINIMAL AND REMOTE INVOLVEMENT BETWEEN CHURCH AND STATE
AND FAR LESS THAN TAXATION OF CHURCHES.  IT RESTRICTS THE FISCAL
RELATIONSHIP BETWEEN CHURCH AND STATE, AND TENDS TO COMPLEMENT AND
REINFORCE THE DESIRED SEPARATION INSULATING EACH FROM THE OTHER. 

SEPARATION IN THIS CONTEXT CANNOT MEAN ABSENCE OF ALL CONTACT; THE
COMPLEXITIES OF MODERN LIFE INEVITABLY PRODUCE SOME CONTACT AND THE
FIRE AND POLICE PROTECTION RECEIVED BY HOUSES OF RELIGIOUS WORSHIP ARE
NO MORE THAN INCIDENTAL BENEFITS ACCORDED ALL PERSONS OR INSTITUTIONS
WITHIN A STATE'S BOUNDARIES, ALONG WITH MANY OTHER EXEMPT
ORGANIZATIONS.  THE APPELLANT HAS NOT ESTABLISHED EVEN AN ARGUABLE
QUANTITATIVE CORRELATION BETWEEN THE PAYMENT OF AN AD VALOREM PROPERTY
TAX AND THE RECEIPT OF THESE MUNICIPAL BENEFITS. 

ALL OF THE 50 STATES PROVIDE FOR TAX EXEMPTION OF PLACES OF WORSHIP,
MOST OF THEM DOING SO BY CONSTITUTIONAL GUARANTEES.  FOR SO LONG AS
FEDERAL INCOME TAXES HAVE HAD ANY POTENTIAL IMPACT ON CHURCHES-- OVER
75 YEARS-- RELIGIOUS ORGANIZATIONS HAVE BEEN EXPRESSLY EXEMPT FROM THE
TAX.  /4/  SUCH TREATMENT IS AN "AID" TO CHURCHES NO MORE AND NO LESS
IN PRINCIPLE THAN THE REAL ESTATE TAX EXEMPTION GRANTED BY STATES.  FEW
CONCEPTS ARE MORE DEEPLY EMBEDDED IN THE FABRIC OF OUR NATIONAL LIFE,
BEGINNING WITH PRE-REVOLUTIONARY COLONIAL TIMES, THAN FOR THE
GOVERNMENT TO EXERCISE AT THE VERY LEAST THIS KIND OF BENEVOLENT
NEUTRALITY TOWARD CHURCHES AND RELIGIOUS EXERCISE GENERALLY SO LONG AS
NONE WAS FAVORED OVER OTHERS AND NONE SUFFERED INTERFERENCE. 

IT IS SIGNIFICANT THAT CONGRESS, FROM ITS EARLIEST DAYS, HAS VIEWED
THE RELIGION CLAUSES OF THE CONSTITUTION AS AUTHORIZING STATUTORY REAL
ESTATE TAX EXEMPTION TO RELIGIOUS BODIES.  IN 1802 THE 7TH CONGRESS
ENACTED A TAXING STATUTE FOR THE COUNTY OF ALEXANDRIA, ADOPTING THE
1800 VIRGINIA STATUTORY PATTERN WHICH PROVIDED TAX EXEMPTIONS FOR
CHURCHES.  2 STAT. 194.  /5/  AS EARLY AS 1813 THE 12TH CONGRESS
REFUNDED IMPORT DUTIES PAID BY RELIGIOUS SOCIETIES ON THE IMPORTATION
OF RELIGIOUS ARTICLES.  /6/  DURING THIS PERIOD THE CITY COUNCIL OF
WASHINGTON, D.C., ACTING UNDER CONGRESSIONAL AUTHORITY, ACT OF
INCORPORATION, SEC. 7, 2 STAT. 197 (MAY 3, 1802), ENACTED A SERIES OF
REAL AND PERSONAL PROPERTY ASSESSMENTS THAT UNIFORMLY EXEMPTED CHURCH
PROPERTY.  /7/  IN 1870 THE CONGRESS SPECIFICALLY EXEMPTED ALL CHURCHES
IN THE DISTRICT OF COLUMBIA AND APPURTENANT GROUNDS AND PROPERTY "FROM
ANY AND ALL TAXES OR ASSESSMENTS, NATIONAL, MUNICIPAL, OR COUNTY."  ACT
OF JUNE 17, 1870, 16 STAT. 153.  /8/ 

IT IS OBVIOUSLY CORRECT THAT NO ONE ACQUIRES A VESTED OR PROTECTED
RIGHT IN VIOLATION OF THE CONSTITUTION BY LONG USE, EVEN WHEN THAT SPAN
OF TIME COVERS OUR ENTIRE NATIONAL EXISTENCE AND INDEED PREDATES IT.
YET AN UNBROKEN PRACTICE OF ACCORDING THE EXEMPTION TO CHURCHES, OPENLY
AND BY AFFIRMATIVE STATE ACTION, NOT COVERTLY OR BY STATE INACTION, IS
NOT SOMETHING TO BE LIGHTLY CAST ASIDE.  NEARLY 50 YEARS AGO MR.
JUSTICE HOLMES STATED: 

"IF A THING HAS BEEN PRACTISED FOR TWO HUNDRED YEARS BY COMMON
CONSENT, IT WILL NEED A STRONG CASE FOR THE FOURTEENTH AMENDMENT TO
AFFECT IT . . . . "  JACKMAN V. ROSENBAUM CO., 260 U.S. 22, 31 (1922). 

NOTHING IN THIS NATIONAL ATTITUDE TOWARD RELIGIOUS TOLERANCE AND TWO
CENTURIES OF UNINTERRUPTED FREEDOM FROM TAXATION HAS GIVEN THE REMOTEST
SIGN OF LEADING TO AN ESTABLISHED CHURCH OR RELIGION AND ON THE
CONTRARY IT HAS OPERATED AFFIRMATIVELY TO HELP GUARANTEE THE FREE
EXERCISE OF ALL FORMS OF RELIGIOUS BELIEF.  THUS, IT IS HARDLY USEFUL
TO SUGGEST THAT TAX EXEMPTION IS BUT THE "FOOT IN THE DOOR" OR THE
"NOSE OF THE CAMEL IN THE TENT" LEADING TO AN ESTABLISHED CHURCH.  IF
TAX EXEMPTION CAN BE SEEN AS THIS FIRST STEP TOWARD "ESTABLISHMENT" OF
RELIGION, AS MR. JUSTICE DOUGLAS FEARS, THE SECOND STEP HAS BEEN LONG
IN COMING.  ANY MOVE THAT REALISTICALLY "ESTABLISHES" A CHURCH OR TENDS
TO DO SO CAN BE DEALT WITH "WHILE THIS COURT SITS." 

MR. JUSTICE CARDOZO COMMENTED IN THE NATURE OF THE JUDICIAL PROCESS
51 (1921) ON THE "TENDENCY OF A PRINCIPLE TO EXPAND ITSELF TO THE LIMIT
OF ITS LOGIC"; SUCH EXPANSION MUST ALWAYS BE CONTAINED BY THE
HISTORICAL FRAME OF REFERENCE OF THE PRINCIPLE'S PURPOSE AND THERE IS
NO LACK OF VIGILENCE ON THIS SCORE BY THOSE WHO FEAR RELIGIOUS
ENTANGLEMENT IN GOVERNMENT. 

THE ARGUMENT THAT MAKING "FINE DISTINCTIONS" BETWEEN WHAT IS AND
WHAT IS NOT ABSOLUTE UNDER THE CONSTITUTION IS TO RENDER US A
GOVERNMENT OF MEN, NOT LAWS, GIVES TOO LITTLE WEIGHT TO THE FACT THAT
IT IS AN ESSENTIAL PART OF ADJUDICATION TO DRAW DISTINCTIONS, INCLUDING
FINE ONES, IN THE PROCESS OF INTERPRETING THE CONSTITUTION.  WE MUST
FREQUENTLY DECIDE, FOR EXAMPLE, WHAT ARE "REASONABLE" SEARCHES AND
SEIZURES UNDER THE FOURTH AMENDMENT.  DETERMINING WHAT ACTS OF
GOVERNMENT TEND TO ESTABLISH OR INTERFERE WITH RELIGION FALLS WELL
WITHIN WHAT COURTS HAVE LONG BEEN CALLED UPON TO DO IN SENSITIVE
AREAS. 

IT IS INTERESTING TO NOTE THAT WHILE THE PRECISE QUESTION WE NOW
DECIDE HAS NOT BEEN DIRECTLY BEFORE THE COURT PREVIOUSLY, THE BROAD
QUESTION WAS DISCUSSED BY THE COURT IN RELATION TO REAL ESTATE TAXES
ASSESSED NEARLY A CENTURY AGO ON LAND OWNED BY AND ADJACENT TO A CHURCH
IN WASHINGTON, D.C.  /9/  AT THAT TIME CONGRESS GRANTED REAL ESTATE TAX
EXEMPTIONS TO BUILDINGS DEVOTED TO ART, TO INSTITUTIONS OF PUBLIC
CHARITY, LIBRARIES, CEMETERIES, AND "CHURCH BUILDINGS, AND GROUNDS
ACTUALLY OCCUPIED BY SUCH BUILDINGS."  IN DENYING TAX EXEMPTION AS TO
LAND OWNED BY BUT NOT USED FOR THE CHURCH, BUT RATHER TO PRODUCE
INCOME, THE COURT CONCLUDED: 

"IN THE EXERCISE OF THIS (TAXING) POWER, CONGRESS LIKE ANY STATE
LEGISLATURE UNRESTRICTED BY CONSTITUTIONAL PROVISIONS, MAY AT ITS
DISCRETION WHOLLY EXEMPT CERTAIN CLASSES OF PROPERTY FROM TAXATION, OR
MAY TAX THEM AT A LOWER RATE THAN OTHER PROPERTY."  GIBBONS V. DISTRICT
OF COLUMBIA, 116 U.S. 404, 408 (1886). 

IT APPEARS THAT AT LEAST UP TO 1885 THIS COURT, REFLECTING MORE THAN
A CENTURY OF OUR HISTORY AND UNINTERRUPTED PRACTICE, ACCEPTED WITHOUT
DISCUSSION THE PROPOSITION THAT FEDERAL OR STATE GRANTS OF TAX
EXEMPTION TO CHURCHES WERE NOT A VIOLATION OF THE RELIGION CLAUSES OF
THE FIRST AMENDMENT.  AS TO THE NEW YORK STATUTE, WE NOW CONFIRM THAT
VIEW. 

              AFFIRMED. 

/1/  ART. 16, SEC. 1, OF THE NEW YORK STATE CONSTITUTION IS
IMPLEMENTED BY SEC. 420, SUBD. 1, OF THE NEW YORK REAL PROPERTY TAX LAW
WHICH STATES IN PERTINENT PART: 

"REAL PROPERTY OWNED BY A CORPORATION OR ASSOCIATION ORGANIZED
EXCLUSIVELY FOR THE MORAL OR MENTAL IMPROVEMENT OF MEN AND WOMEN, OR
FOR RELIGIOUS, BIBLE, TRACT, CHARITABLE, BENEVOLENT, MISSIONARY,
HOSPITAL, INFIRMARY, EDUCATIONAL, PUBLIC PLAYGROUND, SCIENTIFIC,
LITERARY, BAR ASSOCIATION, MEDICAL SOCIETY, LIBRARY, PATRIOTIC,
HISTORICAL OR CEMETERY PURPOSES . . . AND USED EXCLUSIVELY FOR CARRYING
OUT THEREUPON ONE OR MORE OF SUCH PURPOSES . . . SHALL BE EXEMPT FROM
TAXATION AS PROVIDED IN THIS SECTION." 

/2/  THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION PROVIDES
IN PART THAT "CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF . . . . " 

/3/  THE SUPPORT OF RELIGION WITH DIRECT ALLOCATION OF PUBLIC
REVENUE WAS A COMMON COLONIAL PRACTICE.  SEE C. ANTIEAU, A. DOWNEY, &
E. ROBERTS, FREEDOM FROM FEDERAL ESTABLISHMENT CC. 1 AND 2 (1964).  A
GENERAL ASSESSMENT PROPOSED IN VIRGINIA LEGISLATURE IN 1784 PROMPTED
THE WRITING OF JAMES MADISON'S REMONSTRANCE.  SEE OPINION OF MR.
JUSTICE DOUGLAS DISSENTING, POST, AT 704-706; 716-727.  GOVERNMENTAL
SUPPORT OF RELIGION IS COMMON IN MANY COUNTRIES.  SEE E.G., R. MURRAY,
A. BRIEF HISTORY OF THE CHURCH OF SWEDEN 75 (1961); G. CODDING, THE
FEDERAL GOVERNMENT OF SWITZERLAND 53-54 (1961); M. SCEHIC, ZBIRKA
PROPISA O DOPRINOSIMA I POREZIMA GRADJANA 357 (YUGOSLAVIA) (1968). 

/4/  ACT OF AUGUST 27, 1894, SEC. 32, 28 STAT. 556.  FOLLOWING
PASSAGE OF THE SIXTEENTH AMENDMENT, FEDERAL INCOME TAX ACTS HAVE
CONSISTENTLY EXEMPTED CORPORATIONS AND ASSOCIATIONS, ORGANIZED AND
OPERATED EXCLUSIVELY FOR RELIGIOUS PURPOSES ALONG WITH ELEEMOSYNARY
GROUPS, FROM PAYMENT OF THE TAX.  ACT OF OCT. 3, 1913, SEC. IIGA), 38
STAT. 172.  SEE INT. REV. CODE OF 1954, SEC. 501 ET SEQ., 26 U.S.C. 501
ET SEQ. 

/5/  IN 1798 CONGRESS PASSED AN ACT TO PROVIDE FOR THE VALUATION OF
LANDS AND DWELLING HOUSES.  ALL EXISTING STATE EXEMPTIONS WERE
EXPRESSLY EXCLUDED FROM THE AFORESAID VALUATION AND ENUMERATION.  ACT
OF JULY 9, 1798, SEC. 8, 1 STAT. 585.  SUBSEQUENT LEVIES OF DIRECT
TAXES EXPRESSLY OR IMPLIEDLY INCORPORATED EXISTING STATE EXEMPTIONS. 
ACT OF JULY 14, 1798, SEC. 2, A STAT. 598 (EXPRESS INCORPORATION OF
STATE EXEMPTION).  SEE ACT OF AUG. 2, 1813, SEC. 4, 3 STAT. 71; ACT OF
JAN. 9, 1815, SEC. 5, 3 STAT. 166 (EXPRESS INCORPORATION OF STATE
EXEMPTIONS). 

/6/  SEE 6 STAT. 116 (1813), RELATING TO PLATES FOR PRINTING
BIBLES.  SEE ALSO 6 STAT. 346 (1826) RELATING TO CHURCH VESTMENTS,
FURNITURE, AND PAINTINGS; 6 STAT. 162 (1816), BIBLE PLATES, 6 STAT. 600
(1834), AND 6 STAT. 675 (1836), CHURCH BELLS. 

/7/  SEE, E.G., ACTS OF THE CORPORATION OF THE CITY OF WASHINGTON,
FIRST COUNCIL, C. V, APPROVED OCT. 6, 1802, P. 13; ACTS OF THE
CORPORATION OF THE CITY OF WASHINGTON, SECOND COUNCIL, SEC. 1, APPROVED
SEPT. 12, 1803, P. 13; ACTS OF THE CORPORATION OF THE CITY OF
WASHINGTON, THIRD COUNCIL, SEC. 1, APPROVED SEPT. 5, 1804, P. 13. 
SUCCEEDING ACTS OF THE CORPORATION IMPLIEDLY RENEWED THE EXEMPTION IN
SUBSEQUENT ASSESSMENTS.  SEE, E.G., ACTS OF THE CORPORATION OF THE CITY
OF WASHINGTON, THIRTEENTH COUNCIL, C. 19, SEC. 2, APPROVED JULY 27,
1815, P. 24. 

/8/  SUBSEQUENT ACTS OF CONGRESS CARRIED OVER THE SUBSTANCE OF THE
EXEMPTION.  ACT OF JULY 12, 1876, SEC. 8, 19 STAT. 85; ACT OF MARCH 3,
1877, SEC. 8, 19 STAT. 399; ACT OF AUGUST 15, 1916, 39 STAT. 514; D.C.
CODE ANN. SEC. 47-801A (1967). 

/9/  GIBBONS V. DISTRICT OF COLUMBIA, 116 U.S. 404 (1886).  CF.
WASHINGTON ETHICAL SOCIETY V. DISTRICT OF COLUMBIA, 101 U.S.APP.D.C.
371, 249 F.2D 127 (1957). 

MR. JUSTICE BRENNAN, CONCURRING. 

I CONCUR FOR REASONS EXPRESSED IN MY OPINION IN ABINGTON SCHOOL
DIST. V. SCHEMPP, 374 U.S. 203, 230 (1963).  I ADHERE TO THE VIEW THERE
STATED THAT TO GIVE CONCRETE MEANING TO THE ESTABLISHMENT CLAUSE, 

"THE LINE WE MUST DRAW BETWEEN THE PERMISSIBLE AND THE IMPERMISSIBLE
IS ONE WHICH ACCORDS WITH HISTORY AND FAITHFULLY REFLECTS THE
UNDERSTANDING OF THE FOUNDING FATHERS.  IT IS A LINE WHICH THE COURT
HAS CONSISTENTLY SOUGHT TO MARK IN ITS DECISIONS EXPOUNDING THE
RELIGIOUS GUARANTEES OF THE FIRST AMENDMENT.  WHAT THE FRAMERS MEANT TO
FORECLOSE, AND WHAT OUR DECISIONS UNDER THE ESTABLISHMENT CLAUSE HAVE
FORBIDDEN, ARE THOSE INVOLVEMENTS OF RELIGIOUS WITH SECULAR
INSTITUTIONS WHICH (A) SERVE THE ESSENTIALLY RELIGIOUS ACTIVITIES OF
RELIGIOUS INSTITUTIONS; (B) EMPLOY THE ORGANS OF GOVERNMENT FOR
ESSENTIALLY RELIGIOUS PURPOSES; OR (C) USE ESSENTIALLY RELIGIOUS MEANS
TO SERVE GOVERNMENTAL ENDS, WHERE SECULAR MEANS WOULD SUFFICE.  WHEN
THE SECULAR AND RELIGIOUS INSTITUTIONS BECOME INVOLVED IN SUCH A
MANNER, THERE INHERE IN THE RELATIONSHIP PRECISELY THOSE DANGERS-- AS
MUCH TO CHURCH AS TO STATE-- WHICH THE FRAMERS FEARED WOULD SUBVERT
RELIGIOUS LIBERTY AND THE STRENGTH OF A SYSTEM OF SECULAR GOVERNMENT. 
ON THE OTHER HAND, THERE MAY BE MYRIAD FORMS OF INVOLVEMENTS OF
GOVERNMENT WITH RELIGION WHICH DO NOT IMPORT SUCH DANGERS AND THEREFORE
SHOULD NOT, IN MY JUDGMENT, BE DEEMED TO VIOLATE THE ESTABLISHMENT
CLAUSE."  ID., AT 294-295.  THUS, IN MY VIEW, THE HISTORY, PURPOSE, AND
OPERATION OF REAL PROPERTY TAX EXEMPTIONS FOR RELIGIOUS ORGANIZATIONS
MUST BE EXAMINED TO DETERMINE WHETHER THE ESTABLISHMENT CLAUSE IS
BREACHED BY SUCH EXEMPTIONS.  SEE ID., AT 293. 

        I 

THE EXISTENCE FROM THE BEGINNING OF THE NATION'S LIFE OF A PRACTICE,
SUCH AS TAX EXEMPTIONS FOR RELIGIOUS ORGANIZATIONS, IS NOT CONCLUSIVE
OF ITS CONSTITUTIONALITY.  BUT SUCH PRACTICE IS A FACT OF CONSIDERABLE
IMPORT IN THE INTERPRETATION OF ABSTRACT CONSTITUTIONAL LANGUAGE.  ON
ITS FACE, THE ESTABLISHMENT CLAUSE IS REASONABLY SUSCEPTIBLE OF
DIFFERENT INTERPRETATIONS REGARDING THE EXEMPTIONS.  THIS COURT'S
INTERPRETATIONS OF THE CLAUSE, ACCORDINGLY, IS APPROPRIATELY INFLUENCED
BY THE READING IT HAS RECEIVED IN THE PRACTICES OF THE NATION.  AS MR.
JUSTICE HOLMES OBSERVED IN AN ANALOGOUS CONTEXT, IN RESOLVING SUCH
QUESTIONS OF INTERPRETATION, "A PAGE OF HISTORY IS WORHT A VOLUME OF
LOGIC."  NEW YORK TRUST CO. V. EISNER, 256 U.S. 345, 349 (1921).  THE
MORE LONGSTANDING AND WIDELY ACCEPTED A PRACTICE, THE GREATER ITS
IMPACT UPON CONSTITUTIONAL INTERPRETATION.  HISTORY IS PARTICULARLY
COMPELLING IN THE PRESENT CASE BECAUSE OF THE UNDEVIATING ACCEPTANCE
GIVEN RELIGIOUS TAX EXEMPTIONS FROM OUR EARLIEST DAYS AS A NATION. 
RARELY IF EVER HAS THIS COURT CONSIDERED THE CONSTITUTIONALITY OF A
PRACTICE FOR WHICH THE HISTORICAL SUPPORT IS SO OVERWHELMING. 

THE ESTABLISHMENT CLAUSE, ALONG WITH THE OTHER PROVISIONS OF THE
BILL OF RIGHTS, WAS RATIFIED BY THE STATES IN 1791.  RELIGIOUS TAX
EXEMPTIONS WERE NOT AN ISSUE IN THE PETITIONS CALLING FOR THE BILL OF
RIGHTS, IN THE PERTINENT CONGRESSIONAL DEBATES, OR IN THE DEBATES
PRECEDING RATIFICATION BY THE STATES.  /1/  THE ABSENCE OF CONCERN
ABOUT THE EXEMPTIONS COULD NOT HAVE RESULTED FROM FAILURE TO FORESEE
THE POSSIBILITY OF THEIR EXISTENCE, FOR THEY WERE WIDESPREAD DURING
COLONIAL DAYS.  /2/  RATHER, IT SEEMS CLEAR THAT THE EXEMPTIONS WERE
NOT AMONG THE EVILS THAT THE FRAMERS AND RATIFIERS OF THE ESTABLISHMENT
CLAUSE SOUGHT TO AVOID.  SIGINIFICANTLY, WITHIN A DECADE AFTER
RATIFICATION, AT LEAST FOUR STATES PASSED STATUTES EXEMPTING THE
PROPERTY OF RELIGIOUS ORGANIZATIONS FROM TAXATION.  /3/ 

ALTHOUGH THE FIRST AMENDMENT MAY NOT HAVE APPLIED TO THE STATES
DURING THIS PERIOD, PRACTICE IN VIRGINIA AT THE TIME IS NONETHELESS
INSTRUCTIVE.  THE COMMONWEALTH'S EFFORTS TO SEPARATE CHURCH AND STATE
PROVIDED THE DIRECT ANTECEDENTS OF THE FIRST AMENDMENT, SEE MCGOWAN V.
MARYLAND, 366 U.S. 420, 437-440 (1961); ABINGTON SCHOOL DIST. V.
SCHEMPP, SUPRA, AT 233-234 (BRENNAN, J., CONCURRING); EVERSON V. BOARD
OF EDUCATION, 330 U.S. 1, 33-38 (1947) (RUTLEDGE, J., DISSENTING), AND
VIRGINIA REMAINED UNUSUALLY SENSITIVE TO THE PROPER RELATION BETWEEN
THE CHURCH AND STATE DURING THE YEARS IMMEDIATELY FOLLOWING
RATIFICATION OF THE ESTABLISHMENT CLAUSE.  VIRGINIA'S PROTACTED
MOVEMENT TO DISESTABLISH THE EPISCOPAL CHURCH CULMINATED IN THE PASSAGE
ON JANUARY 24, 1799, OF "AN ACT TO REPEAL CERTAIN ACTS, AND TO DECLARE
THE CONSTRUCTION OF THE (VIRGINIA) BILL OF RIGHTS AND CONSTITUTION,
CONCERNING RELIGION."  THE 1799 ACT STATED THAT THE VIRGINIA BILL OF
RIGHTS HAD "EXCEPTED FROM THE POWERS GIVEN TO THE (CIVIL) GOVERNMENT,
THE POWER OF REVIVING ANY SPECIES OF ECCLESIASTICAL OR CHURCH
GOVERNMENT . . . BY REFERRING THE SUBJECT OF RELIGION TO CONSCIENCE"
AND THAT THE REPEALED MEASURES HAS "BESTOWED PROPERTY UPON (THE
ANGLICAN) CHURCH," AND "ASSERTED A LEGISLATIVE RIGHT TO ESTABLISH ANY
RELIGIOUS SECT," AND HAD "INCORPORATED RELIGIOUS SECTS, ALL OF WHICH IS
INCONCSISTENT WITH THE PRINCIPLES OF THE CONSTITUTION, AND OF RELIGIOUS
FREEDOM, AND MANIFESTLY TENDS TO THE RE-ESTABLISHMENT OF A NATIONAL
CHURCH."  2 VA. STATUTES AT LARGE OF 1792-1806 (SHEPHERD) 149.  YET
JUST ONE YEAR AFTER THE PASSAGE OF THIS ACT, VIRGINIA RE-ENACTED A
MEASURE EXEMPTING FROM TAXATION PROPERTY BELONGING TO "ANY . . .
COLLEGE, HOUSES FOR DIVINE WORSHIP, OR SEMINARY OF LEARNING."  ID., AT
200.  THIS EXEMPTION DATED AT LEAST FROM 1777 AND HAD BEEN REAFFIRMED
IMMEDIATELY BEFORE AND AFTER RATIFICATION OF THE FIRST AMENDMENT.  SEE
9 VA. STATUTES AT LARGE (1775-1778, HENING), AT 351; 13 VA. STATUTES AT
LARGE (1789-1792, HENING), AT 112, 241, 336-337.  IT MAY REASONABLY BE
INFERRED THAT THE VIRGINIANS DID NOT VIEW THE EXEMPTION FOR "HOUSES OF
DIVINE WORSHIP" AS AN ESTABLISHMENT OF RELIGION. 

SIMILARLY, IN 1784 THE NEW YORK LEGISLATURE REPEALED COLONIAL ACTS
ESTABLISHING THE EPISCOPAL CHURCH IN SEVERAL COUNTIES OF THE STATE. 
SEE N.Y. LAWS OF 1777-1784, C. 38, P. 661.  YET IN 1799, THE
LEGISLATURE PROVIDED THAT "NO HOUSE OR LAND BELONGING TO . . . ANY
CHURCH OR PLACE OF PUBLIC WORSHIP . . . NOR ANY COLLEGE OR INCORPORATED
ACADEMY, NOR ANY SCHOOL HOUSE, . . . ALMS HOUSE OR PROPERTY BELONGING
TO ANY INCORPORATED LIBRARY, SHALL BE TAXED BY VIRTUE OF THIS ACT." 
N.Y. LAWS OF 1797-1800, C. 72, AT 414.  AND EARLY PRACTICE IN THE
DISTRICT OF COLUMBIA-- GOVERNED FROM THE OUTSET BY THE FIRST AMENDMENT-
MIRRORED THAT IN THE STATES.  IN 1802 THE CORPORATION OF THE CITY OF
WASHINGTON, UNDER AUTHORITY DELEGATED BY CONGRESS, EXEMPTED "HOUSES FOR
PUBLIC WORSHIP" FROM REAL PROPERTY TAXES.  ACTS OF THE CORPORATION OF
THE CITY OF WASHINGTON, FIRST COUNCIL, C. V, APPROVED OCT. 6, 1802, P.
13.  SEE ALSO THE CONGRESSIONAL ACTS CITED IN THE COURT'S OPINION,
ANTE, AT 677-678. 

THOMAS JEFFERSON WAS PRESIDENT WHEN TAX EXEMPTION WAS FIRST GIVEN
WASHINGTON CHURCHES, AND JAMES MADISON SAT IN SESSIONS OF THE VIRGINIA
GENERAL ASSEMBLY THAT VOTED EXEMPTIONS FOR CHURCHES IN THAT
COMMONWEALTH.  /4/  I HAVE FOUND NO RECORD OF THEIR PERSONAL VIEWS ON
THE RESPECTIVE ACTS.  /5/  THE ABSENCE OF SUCH A RECORD IS ITSELF
SIGNIFICANT.  IT IS UNLIKELY THAT TWO MEN SO CONCERNED WITH THE
SEPARATION OF CHURCH AND STATE WOULD HAVE REMAINED SILENT HAD THEY
THOUGHT THE EXEMPTIONS ESTABLISHED RELIGION.  AND IF THEY HAD NOT
EITHER APPROVED THE EXEMPTIONS, OR BEEN MILD IN THEIR OPPOSITION, IT IS
PROBABLE THAT THEIR VIEWS WOULD BE KNOWN TO US TODAY.  BOTH JEFFERSON
AND MADISON WROTE PROLIFICALLY ABOUT ISSUES THEY FELT IMPORTANT, AND
THEIR OPINIONS WERE WELL KNOWN TO CONTEMPORARY CHRONICLERS.  SEE, FOR
EXAMPLE, THE RECORD PRESERVED OF MADISON'S BATTLE IN 1784-1785 AGAINST
THE PROPOSAL IN THE VIRGINIA ASSEMBLY TO LEVY A GENERAL TAX TO SUPPORT
"TEACHERS OF THE CHRISTIAN RELIGION," IN THE DISSENTING OPINION OF MR.
JUSTICE DOUGLAS, POST, AT 704-706, 719-727.  MUCH THE SAME CAN BE SAID
OF THE OTHER FRAMERS AND RATIFIERS OF THE BILL OF RIGHTS WHO REMAINED
ACTIVE IN PUBLIC AFFAIRS DURING THE LATE 18TH AND EARLY 19TH
CENTURIES.  THE ADOPTION OF THE EARLY EXEMPTIONS WITHOUT CONTROVERSY,
IN OTHER WORDS, STRONGLY SUGGESTS THAT THEY WERE NOT THOUGHT
INCOMPATIBLE WITH CONSTITUTIONAL PROHIBITIONS AGAINST INVOLVEMENTS OF
CHURCH AND STATE. 

THE EXEMPTIONS HAVE CONTINUED UNINTERRUPTED TO THE PRESENT DAY. 
THEY ARE IN FORCE IN ALL 50 STATES.  NO JUDICIAL DECISION, STATE OR
FEDERAL, HAS EVER HELD THAT THEY VIOLATE THE ESTABLISHMENT CLAUSE.  IN
1886, FOR EXAMPLE, THIS COURT IN GIBBONS V. DISTRICT OF COLUMBIA, 116
U.S. 404, REJECTED ON STATUTORY GROUNDS A CHURCH'S CLAIM FOR THE
EXEMPTION OF CERTAIN OF ITS LAND UNDER CONGRESSIONAL STATUTES EXEMPTING
WASHINGTON CHURCHES AND APPURTENANT GROUND FROM REAL PROPERTY TAXES. 
BUT THE COURT GAVE NOT THE SLIGHTEST HINT THAT IT RULED AGAINST THE
CHURCH BECAUSE, UNDER THE FIRST AMENDMENT, ANY EXEMPTION WOULD HAVE
BEEN UNCONSTITUTIONAL.  TO THE CONTRARY, THE COURT'S OPINION IMPLIED
THAT NOTHING IN THE AMENDMENT PRECLUDES EXEMPTION OF CHURCH PROPERTY:
"WE ARE NOT DISPOSED TO DENY THAT GROUNDS LEFT OPEN AROUND A CHURCH,
NOT MERELY TO ADMIT LIGHT AND AIR, BUT ALSO TO ADD TO ITS BEAUTY AND
ATTRACTIVENESS, MAY, IF NOT USED OR INTENDED TO BE USED FOR ANY OTHER
PURPOSE, BE EXEMPT FROM TAXATION UNDER THESE STATUTES."  ID., AT 407. 
/6/ 

MR. JUSTICE HOLMES SAID THAT "IF A THING HAS BEEN PRACTISED FOR TWO
HUNDRED YEARS BY COMMON CONSENT, IT WILL NEED A STRONG CASE FOR THE
FOURTEENTH AMENDMENT TO AFFECT IT . . . . "  JACKMAN V. ROSENBAUM CO.,
260 U.S.22, 31 (1922).  FOR ALMOST 200 YEARS THE VIEW EXPRESSED IN THE
ACTIONS OF LEGISLATURES AND COURTS HAS BEEN THAT TAX EXEMPTIONS FOR
CHURCHES DO NOT THREATEN "THOSE CONSEQUENCES WHICH THE FRAMERS DEEPLY
FEARED" OR "TEND TO PROMOTE THAT TYPE OF INTERDEPENDENCE BETWEEN
RELIGION AND STATE WHICH THE FIRST AMENDMENT WAS DESIGNED TO PREVENT." 
SCHEMPP, SUPRA, AT 236 (BRENNAN, J., CONCURRING.)  AN EXAMINATION BOTH
OF THE GOVERNMENTAL PURPOSES FOR GRANTING THE EXEMPTIONS AND OF THE
TYPE OF CHURCH-STATE RELATIONSHIP THAT HAS RESULTED FROM THEIR
EXISTENCE MAKES CLEAR THAT NO "STRONG CASE" EXISTS FOR HOLDING
UNCONSTITUTIONAL THIS HISTORIC PRACTICE.  /7/ ##HC687

       II 

GOVERNMENT HAS TWO BASIC SECULAR PURPOSES FOR GRANTING REAL PROPERTY
TAX EXEMPTIONS TO RELIGIOUS ORGANIZATIONS.  /8/  FIRST, THESE
ORGANIZATIONS ARE EXEMPTED BECAUSE THEY, AMONG A RANGE OF OTHER
PRIVATE, NONPROFIT ORGANIZATIONS CONTRIBUTE TO THE WELL-BEING OF THE
COMMUNITY IN A VARIETY OF NONRELIGIOUS WAYS, AND THEREBY BEAR BURDENS
THAT WOULD OTHERWISE EITHER HAVE TO BE MET BY GENERAL TAXATION, OR BE
LEFT UNDONE, TO THE DETRIMENT OF THE COMMUNITY.  SEE, FOR EXAMPLE, 1938
N.Y. CONSTITUTIONAL CONVENTION, REPORT OF THE COMMITTEE ON TAXATION,
DOC. NO. 2, P. 2.  THUS, NEW YORK EXEMPTS "REAL PROPERTY OWNED BY A
CORPORATION OR ASSOCIATION ORGANIZED EXCLUSIVELY FOR THE MORAL OR
MENTAL IMPROVEMENT OF MEN AND WOMEN, OR FOR RELIGIOUS, BIBLE, TRACT,
CHARITABLE, BENEVOLENT, MISSIONARY, HOSPITAL, INFIRMARY, EDUCATIONAL,
PUBLIC PLAYGROUND, SCIENTIFIC, LITERARY, BAR ASSOCIATION, MEDICAL
SOCIETY, LIBRARY, PATRIOTIC, HISTORICAL OR CEMETERY PURPOSES, FOR THE
ENFORCEMENT OF LAWS RELATING TO CHILDREN OR ANIMALS, OR FOR TWO OR MORE
SUCH PURPOSES . . . . "  N.Y. REAL PROP.  TAX LAW SEC. 420, SUBD. 1
(SUPP. 1969-1970). 

APPELLANT SEEKS TO AVOID THE FORCE OF THIS SECULAR PURPOSE OF THE
EXEMPTIONS BY LIMITING HIS CHALLENGE TO "EXEMPTIONS FROM REAL PROPERTY
TAXATION TO RELIGIOUS ORGANIZATIONS ON REAL PROPERTY USED EXCLUSIVELY
FOR RELIGIOUS PURPOSES."  APPELLANT ASSUMES, APPARENTLY, THAT CHURCH
OWNED PROPERTY IS USED FOR EXCLUSIVELY RELIGIOUS PURPOSES IF IT DOES
NOT HOUSE A HOSPITAL, ORPHANAGE, WEEK-DAY SCHOOL, OR THE LIKE.  ANY
ASSUMPTION THAT A CHURCH BUILDING ITSELF IS USED FOR EXCLUSIVELY
RELIGIOUS ACTIVITIES, HOWEVER, RESTS ON A SIMPLISTIC VIEW OF ORDINARY
CHURCH OPERATIONS.  AS THE APPELLEE'S BRIEF COGENTLY OBSERVES, "THE
PUBLIC WELFARE ACTIVITIES AND THE SECTARIAN ACTIVITIES OF RELIGIOUS
INSTITUTIONS ARE . . . INTERTWINED . . . . OFTEN A PARTICULAR CHURCH
WILL USE THE SAME PERSONNEL, FACILITIES AND SOURCE OF FUNDS TO CARRY
OUT BOTH ITS SECULAR AND RELIGIOUS ACTIVITIES."  THUS, THE SAME PEOPLE
WHO GATHER IN CHURCH FACILITIES FOR RELIGIOUS WORSHIP AND STUDY MAY
RETURN TO THESE FACILITIES TO PARTICIPATE IN BOY SCOUT ACTIVITIES, TO
PROMOTE ANTIPOVERTY CAUSES, TO DISCUSS PUBLIC ISSUES, OR TO LISTEN TO
CHAMBER MUSIC.  ACCORDINGLY, THE FUNDS USED TO MAINTAIN THE FACILITIES
AS A PLACE FOR RELIGIOUS WORSHIP AND STUDY ALSO MAINTAIN THEM AS A
PLACE FOR SECULAR ACTIVITIES BENEFICIAL TO THE COMMUNITY AS A WHOLE. 
EVEN DURING FORMAL WORSHIP SERVICES, CHURCHES FREQUENTLY COLLECT THE
FUNDS USED TO FINANCE THEIR SECULAR OPERATIONS AND MAKE DECISIONS
REGARDING THEIR NATURE. 

SECOND, GOVERNMENT GRANTS EXEMPTIONS TO RELIGIOUS ORGANIZATIONS
BECAUSE THEY UNIQUELY CONTRIBUTE TO THE PLURALISM OF AMERICAN SOCIETY
BY THEIR RELIGIOUS ACTIVITIES.  GOVERNMENT MAY PROPERLY INCLUDE
RELIGIOUS INSTITUTIONS AMONG THE VARIETY OF PRIVATE, NONPROFIT GROUPS
THAT RECEIVE TAX EXEMPTIONS, FOR EACH GROUP CONTRIBUTES TO THE
DIVERSITY OF ASSOCIATION, VIEWPOINT, AND ENTERPRISE ESSENTIAL TO A
VIGOROUS, PLURALISTIC SOCIETY.  SEE WASHINGTON ETHICAL SOCIETY V.
DISTRICT OF COLUMBIA, 101 U.S.APP.D.C. 371, 373.  249 F.2D 127, 129
(1957).  TO THIS END, NEW YORK EXTENDS ITS EXEMPTIONS NOT ONLY TO
RELIGIOUS AND SOCIAL SERVICE ORGANIZATIONS BUT ALSO TO SCIENTIFIC,
LITERARY, BAR, LIBRARY, PATRIOTIC, AND HISTORICAL GROUPS, AND GENERALLY
TO INSTITUTIONS "ORGANIZED EXCLUSIVELY FOR THE MORAL OR MENTAL
IMPROVEMENT OF MEN AND WOMEN."  THE VERY BREADTH OF THIS SCHEME OF
EXEMPTIONS NEGATES ANY SUGGESTION THAT THE STATE INTENDS TO SINGLE OUT
RELIGIOUS ORGANIZATIONS FOR SPECIAL PREFERENCE.  THE SCHEME IS NOT
DESIGNED TO INJECT ANY RELIGIOUS ACTIVITY INTO A NONRELIGIOUS CONTEXT,
AS WAS THE CASE WITH SCHOOL PRAYERS.  NO PARTICULAR ACTIVITY OF A
RELIGIOUS ORGANIZATION-- FOR EXAMPLE, THE PROPAGATION OF ITS BELIEFS--
IS SPECIALLY PROMOTED BY THE EXEMPTIONS.  THEY MERELY FACILITATE THE
EXISTENCE OF A BROAD RANGE OF PRIVATE, NON-PROFIT ORGANIZATIONS, AMONG
THEM RELIGIOUS GROUPS, BY LEAVING EACH FREE TO COME INTO EXISTENCE,
THEN TO FLOURISH OR WITHER, WITHOUT BEING BURDENED BY REAL PROPERTY
TAXES. 

        III 

ALTHOUGH GOVERNMENTAL PURPOSES FOR GRANTING RELIGIOUS EXEMPTIONS MAY
BE WHOLLY SECULAR, EXEMPTIONS CAN NONETHELESS VIOLATE THE ESTABLISHMENT
CLAUSE IF THEY RESULT IN EXTENSIVE STATE INVOLVEMENT WITH RELIGION. 
ACCORDINGLY, THOSE WHO URGE THE EXEMPTIONS' UNCONSTITUTIONALITY ARGUE
THAT EXEMPTIONS ARE THE EQUIVALENT OF GOVERNMENTAL SUBSIDY OF
CHURCHES.  GENERAL SUBSIDIES OF RELIGIOUS ACTIVITIES WOULD, OF COURSE,
CONSTITUTE IMPERMISSIBLE STATE INVOLVEMENT WITH RELIGION.    TAX
EXEMPTIONS AND GENERAL SUBSIDIES, HOWEVER, ARE QUALITATIVELY
DIFFERENT.  THOUGH BOTH PROVIDE ECONOMIC ASSISTANCE, /9/ THEY DO SO IN
FUNDAMENTALLY DIFFERENT WAYS.  A SUBSIDY INVOLVES THE DIRECT TRANSFER
OF PUBLIC MONIES TO THE SUBSIDIZED ENTERPRISE AND USES RESOURCES
EXACTED FROM TAXPAYERS AS A WHOLE.  AN EXEMPTION, ON THE OTHER HAND,
INVOLVES NO SUCH TRANSFER.  /10/ IT ASSISTS THE EXEMPTED ENTERPRISE
ONLY PASSIVELY, BY RELIEVING A PRIVATELY FUNDED VENTURE OF THE BURDEN
OF PAYING TAXES.  IN OTHER WORDS, "IN THE CASE OF DIRECT SUBSIDY, THE
STATE FORCIBLY DIVERTS THE INCOME OF BOTH BELIEVERS AND NONBELIEVERS TO
CHURCHES," WHILE "IN THE CASE OF AN EXEMPTION, THE STATE MERELY
REFRAINS FROM DIVERTING TO ITS OWN USES INCOME INDEPENDENTLY GENERATED
BY THE CHURCHES THROUGH VOLUNTARY CONTRIBUTIONS."  GIANNELLA, RELIGIOUS
LIBERTY, NONESTABLISHMENT, AND DOCTRINAL DEVELOPMENT, PT. II, 81
HARV.L.REV.513, 553 (1968).  THUS, "THE SYMBOLISM OF TAX EXEMPTION IS
SIGNIFICANT AS A MANIFESTATION THAT ORGANIZED RELIGIOUS IS NOT EXPECTED
TO SUPPORT THE STATE; BY THE SAME TOKEN THE STATE IS NOT EXPECTED TO
SUPPORT THE CHURCH."  FREUND, PUBLIC AID TO PAROCHIAL SCHOOLS, 82
HARV.L.REV.1680, 1687 N. 16 (1969).  TAX EXEMPTIONS, ACCORDINGLY,
CONSTITUTE MERE PASSIVE STATE INVOLVEMENT WITH RELIGION AND NOT THE
AFFIRMATIVE INVOLVEMENT CHARACTERISTIC OF OUTRIGHT GOVERNMENTAL
SUBSIDY.  /11/ 

EVEN THOUGH EXEMPTIONS PRODUCE ONLY PASSIVE STATE INVOLVEMENT WITH
RELIGION, NONETHELESS SOME ARGUE THAT THEIR TERMINATION WOULD BE
DESIRABLE AS A MEANS OF REDUCING THE LEVEL OF CHURCH-STATE CONTACT. 
BUT IT CANNOT REALISTICALLY BE SAID THAT TERMINATION OF RELIGIOUS TAX
EXEMPTIONS WOULD QUANTITATIVELY LESSEN THE EXTENT OF STATE INVOLVEMENT
WITH RELIGION.  APPELLEE CONTENDS THAT "AS A PRACTICAL MATTER, THE
PUBLIC WELFARE ACTIVITIES AND THE SECTARIAN ACTIVITIES OF RELIGIOUS
INSTITUTIONS ARE SO INTERTWINED THAT THEY CANNOT BE SEPARATED FOR THE
PURPOSE OF DETERMINING ELIGIBILITY FOR TAX EXEMPTIONS."  IF NOT
IMPOSSIBLE, THE SEPARATION WOULD CERTAINLY INVOLVE EXTENSIVE STATE
INVESTIGATION INTO CHURCH OPERATIONS AND FINANCES.  MOREOVER, THE
TERMINATION OF EXEMPTIONS WOULD GIVE RISE, AS THE COURT SAYS, TO THE
NECESSITY FOR "TAX VALUATION OF CHURCH PROPERTY, TAX LIENS, TAX FORE
CLOSURES, AND THE DIRECT CONFRONTATIONS AND CONFLICTS THAT FOLLOW IN
THE TRAIN OF THOSE LEGAL PROCESSES."  ANTE, AT 674.  TAXATION, FURTHER,
WOULD BEAR UNEQUALLY ON DIFFERENT CHURCHES, HAVING ITS MOST DISRUPTIVE
EFFECT ON THOSE WITH THE LEAST ABILITY TO MEET THE ANNUAL LEVIES
ASSESSED AGAINST THEM.  AND TAXATION WOULD SURELY INFLUENCE THE
ALLOCATION OF CHURCH RESOURCES.  BY DIVERTING FUNDS OTHERWISE AVAILABLE
FOR RELIGIOUS OR PUBLIC SERVICE PURPOSES TO THE SUPPORT OF THE
GOVERNMENT, TAXATION WOULD NECESSARILY AFFECT THE EXTENT OF CHURCH
SUPPORT FOR THE ENTERPRISES THAT THEY NOW PROMOTE.  IN MANY INSTANCES,
THE PUBLIC SERVICE ACTIVITIES WOULD BEAR THE BRUNT OF THE REALLOCATION,
AS CHURCHES LOOKED FIRST TO MAINTAIN THEIR PLACES AND PROGRAMS OF
WORSHIP.  IN SHORT, THE CESSATION OF EXEMPTIONS WOULD HAVE A
SIGNIFICANT IMPACT ON RELIGIOUS ORGANIZATIONS.  WHETHER GOVERNMENT
GRANTS OR WITHHOLDS THE EXEMPTIONS, IT IS GOING TO BE INVOLVED WITH
RELIGION.  /12/

        IV 

AGAINST THE BACKGROUND OF THIS SURVEY OF THE HISTORY, PURPOSE, AND
OPERATION OF RELIGIOUS TAX EXEMPTIONS, I MUST CONCLUDE THAT THE
EXEMPTIONS DO NOT "SERVE THE ESSENTIALLY RELIGIOUS ACTIVITIES OF
RELIGIOUS INSTITUTIONS."  THEIR ENCOURAGEMENT OF PUBLIC SERVICE
ACTIVITIES AND OF A PLURALISTIC SOCIETY.  DURING THEIR ORDINARY
OPERATIONS, MOST CHURCHES ENGAGE IN ACTIVITIES OF A SECULAR NATURE THAT
BENEFIT THE COMMUNITY; AND ALL CHURCHES BY THEIR EXISTENCE CONTRIBUTE
TO THE DIVERSITY OF ASSOCIATION, VIEWPOINT, AND ENTERPRISE SO HIGHLY
VALUED BY ALL OF US. 

NOR DO I FIND THAT THE EXEMPTIONS "EMPLOY THE ORGANS OF GOVERNMENT
FOR ESSENTIALLY RELIGIOUS PURPOSES."  TO THE EXTENT THAT THE EXEMPTIONS
FURTHER SECULAR ENDS, THEY DO NOT ADVANCE "ESSENTIALLY RELIGIOUS
PURPOSES."  TO THE EXTENT THAT PURELY RELIGIOUS ACTIVITIES ARE
BENEFITED BY THE EXEMPTIONS, THE BENEFIT IS PASSIVE.  GOVERNMENT DOES
NOT AFFIRMATIVELY FOSTER THESE ACTIVITIES BY EXEMPTING RELIGIOUS
ORGANIZATIONS FROM TAXES, AS IT WOULD WERE IT TO SUBSIDIZE THEM.  THE
EXEMPTION SIMPLY LEAVES UNTOUCHED THAT WHICH ADHERENTS OF THE
ORGANIZATION BRING INTO BEING AND MAINTAIN. 

FINALLY, I DO NOT THINK THAT THE EXEMPTIONS "USE ESSENTIALLY
RELIGIOUS MEANS TO SERVE GOVERNMENTAL ENDS, WHERE SECULAR MEANS WOULD
SUFFICE."  THE MEANS CHURCHES USE TO CARRY ON THEIR PUBLIC SERVICE
ACTIVITIES ARE NOT "ESSENTIALLY RELIGIOUS" IN NATURE.  THEY ARE THE
SAME MEANS USED BY ANY PURELY SECULAR ORGANIZATION-- MONEY, HUMAN TIME
AND SKILLS, PHYSICAL FACILITIES.  IT IS TRUE THAT EACH CHURCH
CONTRIBUTES TO THE PLURALISM OF OUR SOCIETY THROUGH ITS PURELY
RELIGIOUS ACTIVITIES, BUT THE STATE ENCOURAGES THESE ACTIVITIES NOT
BECAUSE IT CHAMPIONS RELIGION PER SE BUT BECAUSE IT VALUES RELIGION
AMONG A VARIETY OF PRIVATE, NONPROFIT ENTERPRISES THAT CONTRIBUTE TO
THE DIVERSITY OF THE NATION.  VIEWED IN THIS LIGHT, THERE IS NO
NONRELIGIOUS SUBSTITUTE FOR RELIGION AS AN ELEMENT IN OUR SOCIETAL
MOSAIC, JUST AS THERE IS NO NONLITERARY SUBSTITUTE FOR LITERARY
GROUPS. 

AS I SAID IN SCHEMPP, THE FIRST AMENDMENT DOES NOT INVALIDATE "THE
PROPRIETY OF CERTAIN TAX . . . EXEMPTIONS WHICH INCIDENTALLY BENEFIT
CHURCHES AND RELIGIOUS INSTITUTIONS, ALONG WITH MANY SECULAR CHARITIES
AND NONPROFIT ORGANIZATIONS . . . . RELIGIOUS INSTITUTIONS SIMPLY SHARE
BENEFITS WHICH GOVERNMENT MAKES GENERALLY AVAILABLE TO EDUCATIONAL,
CHARITABLE, AND ELEEMOSYNARY GROUPS.  THERE IS NO INDICATION THAT
TAXING AUTHORITIES HAVE USED SUCH BENEFITS IN ANY WAY TO SUBSIDIZE
WORSHIP OR FOSTER BELIEF IN GOD."  374 U.S.,AT 301. 

/1/  IN FACT, IT DOES NOT APPEAR THAT THE EXEMPTIONS WERE EVEN
DISCUSSED.  SEE, E.G., C. ANTIEAU, P. CARROLL, AND T. BURKE, RELIGION
UNDER THE STATE CONSTITUTIONS 122 (1965):  "AS FAR AS ANYONE HAS BEEN
ABLE TO DISCOVER, THE TOPIC WAS NEVER MENTIONED IN THE DEBATES WHICH
TOOK PLACE PRIOR TO THE ADOPTION OF THE FIRST AMENDMENT." 

/2/  SEE, E.G., C. ANTIEAU, A. DOWNEY, & E. ROBERTS, FREEDOM FROM
FEDERAL ESTABLISHMENT 20-21, 73-74, 175 (1964); CF. 3 A. STOKES, CHURCH
AND STATE IN THE UNITED STATES 419 (1950). 

/3/  2 DEL.LAWS OF 1700-1797, P. 1247 (ACT OF FEB. 9, 1796); 2 MD.
LAWS (1785-1799, KILTY), C. 89 (ACT OF JAN. 20, 1798); N.Y. LAWS OF
1797-1800, C. 72, AT 414 (ACT OF APRIL 1, 1799); 2 VA. STATUTES AT
LARGE OF 1792-1806 (SHEPHERD) 200 (ACT OF JAN. 23, 1800).  SEE ALSO 16
PENN.  STATUTES AT LARGE OF 1682-1801, AT 379 (ACT OF APRIL 11, 1799). 
FOR PRACTICE IN OTHER STATES, SEE THE ACCOUNTS IN ANTIEAU, CARROLL, &
BURKE, SUPRA, N. 1, AT 123-169; ANTIEAU, DOWNEY & ROBERTS, SUPRA, N. 2,
AT 73-74; C. ZOLLMANN, AMERICAN CIVIL CHURCH LAW 238-242 (1917). 

/4/  SEE, E.G., E. SWEM & J. WILLIAMS, A REGISTER OF THE GENERAL
ASSEMBLY OF VIRGINIA, 1776-1918, P. 53 (1918); JOURNAL OF THE HOUSE OF
DELEGATES OF THE COMMONWEALTH OF VIRGINIA 94, 98 (1799-1800). 

/5/  IN AN ESSAY WRITTEN AFTER HE HAD LEFT THE PRESIDENCY, MADISON
DID ARGUE AGAINST TAX EXEMPTIONS FOR CHURCHES, THE INCORPORATION OF
ECCLESIASTICAL BODIES WITH THE POWER OF ACQUIRING AND HOLDING PROPERTY
IN PERPETUITY, THE RIGHT OF THE HOUSES OF CONGRESS TO CHOOSE CHAPLAINS
WHO ARE PAID OUT OF PUBLIC FUNDS, THE PROVISION OF CHAPLAINS IN THE
ARMY AND NAVY, AND PRESIDENTIAL PROCLAMATIONS OF DAYS OF THANKSGIVING
OR PRAYER-- THOUGH HE ADMITTED PROCLAIMING SEVERAL SUCH DAYS AT
CONGRESSIONAL REQUEST.  SEE FLEET, MADISON'S "DETATCHED MEMORANDA," 3
WM. & MARY Q. (3D SER.)  534, 555-562 (1946).  THESE ARGUMENTS WERE
ADVANCED LONG AFTER THE PASSAGE OF THE VIRGINIA EXEMPTION DISCUSSED IN
THE TEXT, SUPRA, AND EVEN LONGER AFTER THE ADOPTION OF THE
ESTABLISHMENT CLAUSE.  THEY REPRESENT AT MOST AN EXTREME VIEW OF CHURCH
STATE RELATIONS, WHICH MADISON HIMSELF MAY HAVE REACHED ONLY LATE IN
LIFE.  HE CERTAINLY EXPRESSED NO SUCH UNDERSTANDING OF ESTABLISHMENT
DURING THE DEBATES ON THE FIRST AMENDMENT.  SEE 1 ANNALS OF CONG. 434,
730-731, 755 (1789).  AND EVEN IF HE PRIVATELY HELD THESE VIEWS AT THAT
TIME, THERE IS NO EVIDENCE THAT THEY WERE SHARED BY OTHERS AMONG THE
FRAMERS AND RATIFIERS OF THE BILL OF RIGHTS. 

/6/  SEE ALSO, E.G., BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S.
232, 237 (1890), WHERE THE COURT STATED:  "THE PROVISION IN THE
FOURTEENTH AMENDMENT, THAT NO STATE SHALL DENY TO ANY PERSON WITHIN ITS
JURISDICTION THE EQUAL PROTECTION OF THE LAWS, WAS NOT INTENDED TO
PREVENT A STATE FROM ADJUSTING ITS SYSTEM OF TAXATION IN ALL PROPER AND
REASONABLE WAYS.  IT MAY, IF IT CHOOSES, EXEMPT CERTAIN CLASSES OF
PROPERTY OF CHARITABLE INSTITUTIONS."  INDEED, THE COURT SEEMS ALWAYS
TO HAVE VIEWED ATTACKS UPON THE CONSTITUTIONALITY OF THE EXEMPTIONS AS
WHOLLY FRIVOLOUS.  SEE, E.G., LUNDBERG V. COUNTY OF ALMEDA, 46 CAL.2D
644, 298 P.2D 1, APPEAL DISMISSED SUB NOM. HEISEY V. COUNTY OF ALAMEDA,
352 U.S. 921 (1956); GENERAL FINANCE CORP. V. ARCHETTO, 93 R.I. 392,
176 A.2D 73 (1961), APPEAL DISMISSED, 369 U.S. 423 (1962). 

/7/  COMPARE THE VERY DIFFERENT SITUATION REGARDING PRAYERS IN
PUBLIC SCHOOLS.  THE PRACTICE WAS NOT WIDESPREAD AT THE TIME OF THE
ADOPTION OF THE FIRST AMENDMENT.  LEGISLATIVE AUTHORIZATION FOR THE
PRAYERS CAME MUCH LATER AND THEN ONLY IN A RELATIVELY SMALL NUMBER OF
STATES.  MOREOVER, COURTS BEGAN TO QUESTION THE CONSTITUTIONALITY OF
THE PRACTICE BY THE LATE 19TH CENTURY.  THE PRAYERS WERE FOUND
UNCONSTITUTIONAL BY COURTS IN SIX STATES AND BY STATE ATTORNEYS GENERAL
IN SEVERAL OTHERS.  SEE 374 U.S.,AT 270, 274-275. 

/8/  THE ONLY GOVERNMENTAL PURPOSES GERMANE TO THE PRESENT INQUIRY,
OF COURSE, ARE THOSE THAT NOW EXIST.  AS I SAID IN SCHEMPP, "IN THE
SUNDAY LAW CASES, WE FOUND IN STATE LAWS COMPELLING A UNIFORM DAY OF
REST FROM WORLDLY LABOR NO VIOLATION OF THE ESTABLISHMENT CLAUSE . . .
THE BASIC GROUND OF OUR DECISION WAS THAT, GRANTED THE SUNDAY LAWS WERE
FIRST ENACTED FOR RELIGIOUS ENDS, THEY WERE CONTINUED IN FORCE FOR
REASONS WHOLLY SECULAR, NAMELY, TO PROVIDE A UNIVERSAL DAY OF REST AND
ENSURE THE HEALTH AND TRANQUILITY OF THE COMMUNITY.  IN OTHER WORDS,
GOVERNMENT MAY ORIGINALLY HAVE DECREED A SUNDAY DAY OF REST FOR THE
IMPERMISSIBLE PURPOSE OF SUPPORTING RELIGION BUT ABANDONED THAT PURPOSE
AND RETAINED THE LAWS FOR THE PERMISSIBLE PURPOSE OF FURTHERING
OVERWHELMINGLY SECULAR ENDS."  374 U.S.,AT 263-264. 

/9/  IN CERTAIN CIRCUMSTANCES, OF COURSE, THE ECONOMIC VALUE OF A
SUBSIDY EXCEEDS THAT OF AN EXEMPTION.  IF THE ONLY STATE ASSISTANCE
RECEIVED BY A RELIGIOUS ORGANIZATION IS A REAL PROPERTY TAX EXEMPTION,
THE CHURCH MUST RAISE PRIVATELY EVERY CENT THAT IT SPENDS.  IF, ON THE
OTHER HAND, THE ONLY STATE AID TO A CHURCH IS A GENERAL SUBSIDY, THE
CHURCH RIS RELIEVED OF THE NEED TO SUPPORT ITSELF TO THE EXTENT THAT
ITS SUBSIDY PAYMENTS FROM THE STATE EXCEED ITS TAX PAYMENTS TO THE
STATE.  THUS, TO TAKE THE EXTREME CASE, A LIGHTLY TAXED RELIGIOUS
ORGANIZATION THAT RECEIVED A LARGE, GENERAL SUBSIDY COULD PURCHASE
PROPERTY, CONSTRUCT BUILDINGS AND MAINTAIN ITS PROGRAM WHOLLY AT PUBLIC
EXPENSE.  SUCH DEPENDENCE ON STATE SUPPORT IS IMPOSSIBLE WHEN THE ONLY
AID PROVIDED IS A REAL PROPERTY TAX EXEMPTION. 

/10/  A REAL PROPERTY TAX EXEMPTION CANNOT BE VIEWED AS THE FREE
PROVISION BY THE STATE OF CERTAIN BASIC SERVICES-- FIRE, POLICE, WATER,
AND THE LIKE.  AS THE COURT, ANTE, AT 676, POINTS OUT, "THE FIRE AND
POLICE PROTECTION RECEIVED BY HOUSES OF RELIGIOUS WORSHIP ARE NO MORE
THAN INCIDENTAL BENEFITS ACCORDED ALL PERSONS OR INSTITUTIONS WITHIN A
STATE'S BOUNDARIES, ALONG WITH MANY OTHER EXEMPT ORGANIZATIONS.  THE
APPELLANT HAS NOT ESTABLISHED EVEN AN ARGUABLE QUANTITATIVE CORRELATION
BETWEEN THE PAYMENT OF AN AD VALOREM PROPERTY TAX AND THE RECEIPT OF
THESE MUNICIPAL BENEFITS."  SEE GENERALLY BITTKER, CHURCHES, TAXES AND
THE CONSTITUTION, 78 YALE L.J. 1285, 1304-1310 (1969 ). 

/11/  SEE ALSO, E.G., BITTKER, SUPRA, N. 10, AT 1285-1304. 

/12/  THE STATE INVOLVEMENT WITH RELIGION THAT WOULD BE OCCASIONED
BY ANY CESSATION OF EXEMPTIONS MIGHT CONFLICT WITH THE DEMANDS OF THE
FREE EXERCISE CLAUSE.  CF. PRESBYTERIAN CHURCH V. MARY ELIZ.  BLUE HULL
CHURCH, 393 U.S. 440 (1969); MARYLAND & VIRGINIA ELDERSHIP OF THE
CHURCHES OF GOD V. CHURCH OF GOD AT SHARPSBURG, INC;, 396 U.S. 367, 368
370 (1970) (BRENNAN, J., CONCURRING).  IT IS UNNECESSARY TO REACH ANY
QUESTIONS OF FREE EXERCISE IN THE PRESENT CASE, HOWEVER.  AND WHILE I
BELIEVE THAT "HOSTILITY, NOT NEUTRALITY, WOULD CHARACTERIZE THE REFUSAL
TO PROVIDE (THE EXEMPTIONS) . . . , I DO NOT SAY THAT GOVERNMENT MUST
PROVIDE (THEM), OR THAT THE COURTS SHOULD INTERCEDED IF IT FAILS TO DO
SO."  374 U.S.,AT 299. 

OPINION OF MR. JUSTICE HARLAN. 

WHILE I ENTIRELY SUBSCRIBE TO THE RESULT REACHED TODAY AND FIND
MYSELF IN BASIC AGREEMENT WITH WHAT THE CHIEF JUSTICE HAS WRITTEN, I
DEEM IT APPROPRIATE, IN VIEW OF THE RADIATIONS OF THE ISSUES INVOLVED,
TO STATE THOSE CONSIDERATIONS THAT ARE, FOR ME, CONTROLLING IN THIS
CASE AND LEAD ME TO CONCLUDE THAT NEW YORK'S CONSTITUTIONAL PROVISION,
AS IMPLEMENTED BY ITS REAL PROPERTY LAW, DOES NOT OFFEND THE
ESTABLISHMENT CLAUSE.  PRELIMINARILY, I THINK IT RELEVANT TO FACE UP TO
THE FACT THAT IT IS FAR EASIER TO AGREE ON THE PURPOSE THAT UNDERLIES
THE FIRST AMENDMENT'S ESTABLISHMENT AND FREE EXERCISE CLAUSES THAN TO
OBTAIN AGREEMENT ON THE STANDARDS THAT SHOULD GOVERN THEIR
APPLICATION.  WHAT IS AT STAKE AS A MATTER OF POLICY IS PREVENTING THAT
KIND AND DEGREE OF GOVERNMENT INVOLVEMENT IN RELIGIOUS LIFE THAT, AS
HISTORY TEACHES US, IS APT TO LEAD TO STRIFE AND FREQUENTLY STRAIN A
POLITICAL SYSTEM TO THE BREAKING POINT.              I 

TWO REQUIREMENTS FREQNENTLY ARTICULATED AND APPLIED IN OUR CASES FOR
ACHIEVING THIS GOAL ARE "NEUTRALITY" AND "VOLUNTARISM."  E.G., SEE
ABINGTON SCHOOL DIST. V. SCHEMPP, 374 U.S. 203, 305 (1963) (CONCURRING
OPINION OF MR. JUSTICE GOLDBERG); ENGEL V. VITALE, 370 U.S. 421
(1962).  THESE RELATED AND MUTUALLY REINFORCING CONCEPTS ARE SHORT-FORM
FOR SAYING THAT THE GOVERNMENT MUST NEITHER LEGISLATE TO ACCORD
BENEFITS THAT FAVOR RELIGION OVER NONRELIGION, NOR SPONSOR A PARTICULAR
MR. JUSTICE GOLDBERG'S CONCURRING OPINION IN ABINGTON WHICH I JOINED
SET FORTH THESE PRINCIPLES:  "THE FULLEST REALIZATION OF TRUE RELIGIOUS
LIBERTY REQUIRES THAT GOVERNMENT NEITHER ENGAGE IN NOR COMPEL RELIGIOUS
PRACTICES, THAT IT EFFECT NO FAVORITISM AMONG SECTS OR BETWEEN RELIGION
AND NONRELIGION, AND THAT IT WORK DETERRENCE OF NO RELIGIOUS BELIEF." 
374 U.S., AT 305.  THE COURT'S HOLDING IN TORCASO V. WALKINS, 367 U.S.
488, 495 (1961), IS TO THE SAME EFFECT:  THE STATE CANNOT
"CONSTITUTIONALLY PASS LAWS OR IMPOSE REQUIREMENTS WHICH AID ALL
RELIGIONS AS AGAINST NON-BELIEVERS, AND NEITHER CAN (IT) AID THOSE
RELIGIONS BASED ON A BELIEF IN THE EXISTENCE OF GOD AS AGAINST THOSE
RELIGIONS FOUNDED ON DIFFERENT BELIEFS."  IN THE VAST MAJORITY OF CASES
THE INQUIRY, ALBEIT AN ELUSIVE ONE, CAN END AT THIS POINT.  NEUTRALITY
AND VOLUNTARISM STAND AS BARRIERS AGAINST THE MOST EGREGIOUS AND HENCE
DIVISIVE KINDS OF STATE INVOLVEMENT IN RELIGIOUS MATTERS. 

WHILE THESE CONCEPTS ARE AT THE "CORE" OF THE RELIGION CLAUSES, THEY
MAY NOT SUFFICE BY THEMSELVES TO ACHIEVE IN ALL CASES THE PURPOSES OF
THE FIRST AMENDMENT.  AS PROFESSOR FREUND HAS ONLY RECENTLY POINTED OUT
IN PUBLIC AID TO PAROCHIAL SCHOOLS, 82 HARV.L.REV.  1680 (1969),
GOVERNMENTAL INVOLVEMENT, WHILE NEUTRAL, MAY BE SO DIRECT OR IN SUCH
DEGREE AS TO ENGENDER A RISK OF POLITICIZING RELIGION.  THUS, AS THE
OPINION OF THE CHIEF JUSTICE NOTES, RELIGIOUS GROUPS INEVITABLY
REPRESENT CERTAIN POINTS OF VIEW AND NOT INFREQUENTLY ASSERT THEM IN
THE POLITICAL ARENA, AS EVIDENCED BY THE CONTINUING DEBATE RESPECTING
BIRTH CONTROL AND ABORTION LAWS.  YET HISTORY CAUTIONS THAT POLITICAL
FRAGMENTATION ON SECTARIAN LINES MUST BE GUARDED AGAINST.  ALTHOUGH THE
VERY FACT OF NEUTRALITY MAY LIMIT THE INTENSITY OF INVOLVEMENT,
GOVERNMENT PARTICIPATION IN CERTAIN PROGRAMS, WHOSE VERY NATURE IS APT
TO ENTANGLE THE STATE IN DETAILS OF ADMINISTRATION AND PLANNING, MAY
ESCALATE TO THE POINT OF INVITING UNDUE FRAGMENTATION.  SEE MY
CONCURRING OPINION IN BOARD OF EDUCATION V. ALLEN, 392 U.S. 236, 249
(1968), AND THE CONCURRING OPINION OF MR. JUSTICE GOLDBERG IN ABINGTON
SCHOOL DIST. V. SCHEMPP, SUPRA, AT 307. 

        II 

THIS LEGISLATION NEITHER ENCOURAGES NOR DISCOURAGES PARTICIPATION IN
RELIGIOUS LIFE AND THUS SATISFIES THE VOLUNTARISM REQUIREMENT OF THE
FIRST AMENDMENT.  UNLIKE THE INSTANCES OF SCHOOL PRAYERS, ABINGTON
SCHOOL DIST. V. SCHEMPP, SUPRA, AND ENGEL V. VITALE, SUPRA, OR
"RELEASED TIME" PROGRAMS, ZORACH V. CLAUSON, 343 U.S. 306 (1952), AND
MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203 (1948), THE STATE IS NOT
"UTILIZING THE PRESTIGE, POWER, AND INFLUENCE" OF A PUBLIC INSTITUTION
TO BRING RELIGION INTO THE LIVES OF CITIZENS.  374 U.S.,AT 307
(GOLDBERG J., CONCURRING). 

THE STATUTE ALSO SATISFIES THE REQUIREMENT OF NEUTRALITY. 
NEUTRALITY IN ITS APPLICATION REQUIRES AN EQUAL PROTECTION MODE OF
ANALYSIS.  THE COURT MUST SURVEY METICULOUSLY THE CIRCUMSTANCES OF
GOVERNMENTAL CATEGORIES TO ELIMINATE, AS IT WERE, RELIGIOUS
GERRYMANDERS.  IN ANY PARTICULAR CASE THE CRITICAL QUESTION IS WHETHER
THE CIRCUMFERENCE OF LEGISLATION ENCIRCLES A CLASS SO BROAD THAT IT CAN
BE FAIRLY CONCLUDED THAT RELIGIOUS INSTITUTIONS COULD BE THOUGHT TO
FALL WITHIN THE NATURAL PERIMETER. 

THE STATUTE THAT IMPLEMENTS NEW YORK'S CONSTITUTIONAL PROVISION FOR
TAX EXEMPTIONS TO RELIGIOUS ORGANIZATIONS HAS DEFINED A CLASS OF
NONTAXABLE ENTITIES WHOSE COMMON DENOMINATOR IS THEIR NONPROFIT PURSUIT
OF ACTIVITIES DEVOTED TO CULTURAL AND MORAL IMPROVEMENT AND THE DOING
OF "GOOD WORKS" BY PERFORMING CERTAIN SOCIAL SERVICES IN THE COMMUNITY
THAT MIGHT OTHERWISE HAVE TO BE ASSUMED BY GOVERNMENT.  INCLUDED ARE
SUCH BROAD AND DIVERGENT GROUPS AS HISTORICAL AND LITERARY SOCIETIES
AND MORE GENERALLY ASSOCIATIONS "FOR THE MORAL OR MENTAL IMPROVEMENT OF
MEN."  THE STATUTE BY ITS TERMS GRANTS THIS EXEMPTION IN FURTHERANCE OF
MORAL AND INTELLECTUAL DIVERSITY AND WOULD APPEAR NOT TO OMIT ANY
ORGANIZATION THAT COULD BE REASONABLY THOUGHT TO CONTRIBUTE TO THAT
GOAL. 

TO THE EXTENT THAT RELIGIOUS INSTITUTIONS SPONSOR THE SECULAR
ACTIVITIES THAT THIS LEGISLATION IS DESIGNED TO PROMOTE, IT IS
CONSISTENT WITH NEUTRALITY TO GRANT THEM AN EXEMPTION JUST AS OTHER
ORGANIZATIONS DEVOTING RESOURCES TO THESE PROJECTS RECEIVE EXEMPTIONS. 
I THINK, MOREOVER, IN THE CONTEXT OF A STATUTE SO BROAD AS THE ONE
BEFORE US, CHURCHES MAY PROPERLY RECEIVE AN EXEMPTION EVEN THOUGH THEY
DO NOT THEMSELVES SPONSOR THE SECULAR-TYPE ACTIVITIES MENTIONED IN THE
STATUTE BUT EXIST MERELY FOR THE CONVENIENCE OF THEIR INTERESTED
MEMBERS.  AS LONG AS THE BREADTH OF EXEMPTION INCLUDES GROUPS THAT
PURSUE CULTURAL, MORAL, OR SPIRITUAL IMPROVEMENT IN MULTIFARIOUS
SECULAR WAYS, INCLUDING, I WOULD SUPPOSE, GROUPS WHOSE AVOWED TENETS
MAY BE ANTITHEOLOGICAL, ATHEISTIC, OR AGNOSTIC, I CAN SEE NO LACK OF
NEUTRALITY IN EXTENDING THE BENEFIT OF THE EXEMPTION TO ORGANIZED
RELIGIOUS GROUPS.  /1/

        III 

WHETHER THE PRESENT EXEMPTION ENTAILS THAT DEGREE OF INVOLVEMENT
WITH GOVERNMENT THAT PRESENTS A THREAT OF FRAGMENTATION ALONG RELIGIOUS
LINES INVOLVES, FOR ME, A MORE SUBTLE QUESTION THAN DECIDING SIMPLY
WHETHER NEUTALITY HAS BEEN VIOLATED.  UNLIKE THE SUBSIDY THAT MY
BROTHER DOUGLAS FORESEES AS THE NEXT STEP DOWN THE ROAD, TAX EXEMPTIONS
TO NONPROFIT ORGANIZATIONS ARE AN INSTITUTION IN THEMSELVES, SO MUCH SO
THAT THEY ARE, AS THE CHIEF JUSTICE POINTS OUT, EXPECTED AND ACCEPTED
AS A MATTER OF COURSE.  SEE FREUND, PUBLIC AID TO PAROCHIAL SCHOOLS,
SUPRA.  IN THE INSTANT CASE NONINVOLVEMENT IS FURTHER ASSURED BY THE
NEUTRALITY AND BREADTH OF THE EXEMPTION.  IN THE CONTEXT OF AN
EXEMPTION SO SWEEPING AS THE ONE BEFORE US HERE ITS ADMINISTRATION NEED
NOT ENTANGLE GOVERNMENT IN DIFFICULT CLASSIFICATIONS OF WHAT IS OR IS
NOT RELIGIOUS, FOR ANY ORGANIZATION-- ALTHOUGH NOT RELIGIOUS IN A
CUSTOMARY SENSE-- WOULD QUALIFY UNDER THE PERVASIVE RUBRIC OF A GROUP
DEDICATED TO THE MORAL AND CULTURAL IMPROVEMENT OF MEN.  OBVIOUSLY THE
MORE DISCRIMINATING AND COMPLICATED THE BASIS OF CLASSIFICATION FOR AN
EXEMPTION-- EVEN A NEUTRAL ONE-- THE GREATER THE POTENTIAL FOR STATE
INVOLVEMENT IN EVALUATING THE CHARACTER OF THE ORGANIZATIONS.  CF.
PRESBYTERIAN CHURCH V. MARY ELIZ.  BLUE HULL CHURCH, 393 U.S. 440
(1969). 

I AGREE WITH MY BROTHER DOUGLAS THAT EXEMPTIONS DO NOT DIFFER FROM
SUBSIDIES AS AN ECONOMIC MATTER.  ASIDE FROM THE LONGSTANDING TRADITION
BEHIND EXEMPTIONS THERE ARE OTHER DIFFERENCES, HOWEVER.  SUBSIDIES,
UNLIKE EXEMPTIONS, MUST BE PASSED ON PERIODICALLY AND THUS INVITE MORE
POLITICAL CONTROVERSY THAN EXEMPTIONS.  MOREOVER, SUBSIDIES OR DIRECT
AID, AS A GENERAL RULE, ARE GRANTED ON THE BASIS OF ENUMERATED AND MORE
COMPLICATED QUALIFICATIONS AND FREQUENTLY INVOLVE THE STATE IN
ADMINISTRATION TO A HIGHER DEGREE, THOUGH TO BE SURE, THIS IS NOT
NECESSARILY THE CASE. 

WHETHER DIRECT AID OR SUBSIDIES ENTAIL THAT DEGREE OF INVOLVEMENT
THAT IS PROHIBITED BY THE CONSTITUTION IS A QUESTION THAT MUST BE
RESERVED FOR A LATER CASE UPON A RECORD THAT FULLY DEVELOPS ALL THE
PERTINENT CONSIDERATIONS /2/  SUCH AS THE SIGNIFICANCE AND CHARACTER OF
SUBSIDIES IN OUR POLITICAL SYSTEM AND THE ROLE OF THE GOVERNMENT IN
ADMINISTERING THE SUBSIDY IN RELATION TO THE PARTICULAR PROGRAM AIDED. 
IT MAY ALSO BE THAT THE STATES, WHILE BOUND TO OBSERVE STRICT
NEUTRALITY, SHOULD BE FREER TO EXPERIMENT WITH INVOLVEMENT-- ON A
NEUTRAL BASIS-- THAN THE FEDERAL GOVERNMENT.  CF., E.G., MY SEPARATE
OPINION IN ROTH V. UNITED STATES, 354 U.S. 476, 496 (1957). 

I RECOGNIZE THAT FOR THOSE WHO SEEK INFLEXIBLE SOLUTIONS THIS
TRIPARTITE ANALYSIS PROVIDES LITTLE COMFORT.  IT IS ALWAYS POSSIBLE TO
SHRINK FROM A FIRST STEP LEST THE MOMENTUM WILL PLUNGE THE LAW INTO
PITFALLS THAT LIE IN THE TRAIL AHEAD.  I, FOR ONE, HOWEVER, DO NOT
BELIEVE THAT A "SLIPPERY SLOPE" IS NECESSARILY WITHOUT A CONSTITUTIONAL
TOEHOLD.  LIKE THE CHIEF JUSTICE I AM OF THE VIEW THAT IT IS THE TASK
OF THIS TRIBUNAL TO "DRAW DISTINCTIONS, INCLUDING FINE ONES, IN THE
PROCESS OF INTERPRETING THE CONSTITUTION."  ANTE, AT 679.  THE PROSPECT
OF DIFFICULT QUESTIONS OF JUDGMENT IN CONSTITUTIONAL LAW SHOULD NOT BE
THE BASIS FOR PROHIBITING LEGISLATIVE ACTION THAT IS CONSTITUTIONALLY
PERMISSIBLE.  I THINK THIS ONE IS, AND ON THE FOREGOING PREMISES JOIN
WITH THE COURT IN UPHOLDING THIS NEW YORK STATUTE. 

/1/  WHILE I WOULD SUPPOSE MOST CHURCHES DEVOTE PART OF THEIR
RESOURCES TO SECULAR COMMUNITY PROJECTS AND CONVENTIONAL CHARITABLE
ACTIVITIES, IT IS A QUESTION OF FACT, A FACT THAT WOULD ONLY BE
RELEVANT IF WE HAD BEFORE US A STATUTE FRAMED MORE NARROWLY TO INCLUDE
ONLY "CHARITIES" OR A LIMITED CLASS OF ORGANIZATIONS, AND CHURCHES.  IN
SUCH A CASE, DEPENDING ON THE ADMINISTRATION OF THE EXEMPTION, IT MIGHT
BE THAT THE GRANTING OF AN EXEMPTION TO RELIGION WOULD TURN OUT TO BE
IMPROPER.  THIS WOULD DEPEND, I THINK, ON WHETHER OR TO WHAT EXTENT THE
EXEMPTION WERE ACCORDED TO SECULAR SOCIAL ORGANIZATIONS, CONCEIVED TO
BENEFIT THEIR OWN MEMBERSHIP BUT ALSO ENGAGED IN INCIDENTAL GENERAL
PHILANTHROPIC OR CULTURAL UNDERTAKINGS.  IT MIGHT ALSO DEPEND ON
WHETHER, IF CHURCH-SPONSORED PROGRAMS WERE NOT OPEN TO ALL WITHOUT
CHARGE, THE EXEMPTIONS WERE EXTENDED TO PRIVATE CLUBS AND ORGANIZATIONS
PROMOTING ACTIVITIES ON A CONTRIBUTORY BASIS.  THESE WOULD ALL BE
QUESTIONS OF FACT TO BE DETERMINED BY THE REVENUE AUTHORITIES AND THE
COURTS.  WHILE SUCH DETERMINATIONS NECESSARILY INVOLVE GOVERNMENT IN
THE RELIGIOUS INSTITUTIONS, THEY DO NOT OFFEND THE FIRST AMENDMENT. 
THAT AN EVALUATION OF THE SCOPE OF CHARITABLE ACTIVITIES IN PROPORTION
TO DOCTRINAL PURSUITS MAY BE DIFFICULT, DOES NOT RENDER IT UNDUE
INTERFERENCE WITH RELIGION, CF. PRESBYTERIAN CHURCH V. MARY ELIZ.  BLUE
HULL CHURCH, 393 U.S. 440 (1969), FOR IT DOES NOT ENTAIL JUDICIAL
INQUIRY INTO DOGMA AND BELIEF.  INDEED, SUCH AN INQUIRY MAY BE
INESCAPABLE IN THE CONTEXT OF A STATUTE OF LESS BREADTH THAN THE ONE
BEFORE US. 

I WOULD HOLD THE PRESENT EXEMPTION NEUTRAL BECAUSE NEW YORK HAS
CREATED A GENERAL CLASS SO BROAD THAT IT WOULD BE DIFFICULT TO CONCLUDE
THAT RELIGIOUS ORGANIZATIONS CANNOT PROPERLY BE INCLUDED IN IT. 

/2/  THE DIMENSION OF THE PROBLEM WOULD ALSO REQUIRE CONSIDERATION
OF WHAT KIND OF PLURALISTIC SOCIETY IS COMPATIBLE WITH THE POLITICAL
CONCEPTS AND TRADITIONS EMBODIED IN OUR CONSTITUTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

PETITIONER IS THE OWNER OF REAL PROPERTY IN NEW YORK AND IS A
CHRISTIAN.  BUT HE IS NOT A MEMBER OF ANY OF THE RELIGIOUS
ORGANIZATIONS, "REJECTING THEM AS HOSTILE."  THE NEW YORK STATUTE
EXEMPTS FROM TAXATION REAL PROPERTY "OWNED BY A CORPORATION OR
ASSOCIATION ORGANIZED EXCLUSIVELY FOR . . . RELIGIOUS . . . PURPOSES"
AND USED "EXCLUSIVELY FOR CARRYING OUT" SUCH PURPOSES.  /1/  YET NON
BELIEVERS WHO OWN REALTY ARE TAXED AT THE USUAL RATE.  THE QUESTION IN
THE CASE THEREFORE IS WHETHER BELIEVERS-- ORGANIZED IN CHURCH GROUPS--
CAN BE MADE EXEMPT FROM REAL ESTATE TAXES, MERELY BECAUSE THEY ARE
BELIEVERS, WHILE NONBELIEVERS, WHETHER ORGANIZED OR NOT, MUST PAY THE
REAL ESTATE TAXES. 

MY BROTHER HARLAN SAYS HE "WOULD SUPPOSE" THAT THE TAX EXEMPTION
EXTENDS TO "GROUPS WHOSE AVOWED TENETS MAY BE ANTITHEOLOGICAL,
ATHEISTIC, OR AGNOSTIC."  ANTE, AT 697.  IF IT DOES, THEN THE LINE
BETWEEN BELIEVERS AND NONBELIEVERS HAS NOT BEEN DRAWN.  BUT, WITH ALL
RESPECT, THERE IS NOT EVEN A SUGGESTION IN THE PRESENT RECORD THAT THE
STATUTE COVERS PROPERTY USED EXCLUSIVELY BY ORGANIZATIONS FOR
"ANTITHEOLOGICAL PURPOSES," "ATHEISTIC PURPOSES," OR "AGNOSTIC
PURPOSES." 

IN TORCASO V. WATKINS, 367 U.S. 488, WE HELD THAT A STATE COULD NOT
BAR AN ATHEIST FROM PUBLIC OFFICE IN LIGHT OF THE FREEDOM OF BELIEF AND
RELIGION GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  NEITHER
THE STATE NOR THE FEDERAL GOVERNMENT, WE SAID, "CAN CONSTITUTIONALLY
PASS LAWS OR IMPOSE REQUIREMENTS WHICH AID ALL RELIGIONS AS AGAINST NON
BELIEVERS, AND NEITHER CAN AID THOSE RELIGIONS BASED ON A BELIEF IN THE
EXISTENCE OF GOD AS AGAINST THOSE RELIGIONS FOUNDED ON DIFFERENT
BELIEFS."  ID., AT 495. 

THAT PRINCIPLE SHOULD GOVERN THIS CASE. 

THERE IS A LINE BETWEEN WHAT A STATE MAY DO IN ENCOURAGING
"RELIGIOUS" ACTIVITIES, ZORACH V. CLAUSON, 343 U.S. 306, AND WHAT A
STATE MAY NOT DO BY USING ITS RESOURCES TO PROMOTE "RELIGIOUS"
ACTIVITIES, MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, OR BESTOWING
BENEFITS BECAUSE OF THEM.  YET THAT LINE MAY NOT ALWAYS BE CLEAR. 
CLOSING PUBLIC SCHOOLS ON SUNDAY IS IN THE FORMER CATEGORY; SUBSIDIZING
CHURCHES, IN MY VIEW, IS IN THE LATTER.  INDEED I WOULD SUPPOSE THAT IN
COMMON UNDERSTANDING ONE OF THE BEST WAYS TO "ESTABLISH" ONE OR MORE
RELIGIONS IS TO SUBSIDIZE THEM, WHICH A TAX EXEMPTION DOES.  THE STATE
MAY NOT DO THAT ANY MORE THAN IT MAY PREFER "THOSE WHO BELIEVE IN NO
RELIGION OVER THOSE WHO DO BELIEVE."  ZORACH V. CLAUSON, SUPRA, AT
314. 

IN AFFIRMING THIS JUDGMENT THE COURT LARGELY OVERLOOKS THE
REVOLUTION INITIATED BY THE ADOPTION OF THE FOURTEENTH AMENDMENT.  THAT
REVOLUTION INVOLVED THE IMPOSITION OF NEW AND FAR-REACHING
CONSTITUTIONAL RESTRAINTS ON THE STATES.  NATIONALIZATION OF MANY CIVIL
LIBERTIES HAS BEEN THE CONSEQUENCE OF THE FOURTEENTH AMENDMENT,
REVERSING THE HISTORIC POSITION THAT THE FOUNDATIONS OF THOSE LIBERTIES
RESTED LARGELY IN STATE LAW.     THE PROCESS OF THE "SELECTIVE
INCORPORATION" OF VARIOUS PROVISIONS OF THE BILL OF RIGHTS INTO THE
FOURTEENTH AMENDMENT, ALTHOUGH OFTEN PROVOKING LIVELY DISAGREEMENT AT
LARGE AS WELL AS AMONG THE MEMBERS OF THIS COURT, HAS BEEN A STEADY
ONE.  IT STATED IN 1897 WITH CHICAGO, B. & Q.R. CO. V. CHICAGO, 166
U.S. 226, IN WHICH THE COURT HELD THAT THE FOURTEENTH AMENDMENT
PRECLUDED A STATE FROM TAKING PRIVATE PROPERTY FOR PUBLIC USE WITHOUT
PAYMENT OF JUST COMPENSATION, AS PROVIDED IN THE FIFTH AMENDMENT.  THE
FIRST DIRECT HOLDING AS TO THE INCORPORATION OF THE FIRST AMENDMENT
INTO THE FOURTEENTH OCCURRED IN 1931 IN STROMBERG V. CALIFORNIA, 283
U.S. 359, A CASE INVOLVING THE RIGHT OF FREE SPEECH, ALTHOUGH THAT
HOLDING IN STROMBERG HAD BEEN FORESHADOWED IN 1925 BY THE COURT'S
OPINION IN GITLOW V. NEW YORK, 268 U.S. 652.  AS REGARDS THE RELIGIOUS
GUARANTEES OF THE FIRST AMENDMENT, THE FREE EXERCISE CLAUSE WAS
EXPRESSLY DEEMED INCORPORATED INTO THE FOURTEENTH AMENDMENT IN 1940 IN
CANTWELL V. CONNECTICUT, 310 U.S. 296, ALTHOUGH THAT HOLDING HAD BEEN
FORESHADOWED IN 1923 AND 1934 BY THE COURT'S DICTA IN MEYER V.
NEBRASKA, 262 U.S. 390, 399, AND HAMILTON V. REGENTS, 293 U.S. 245,
262.  THE ESTABLISHMENT CLAUSE WAS NOT INCORPORATED IN THE FOURTEENTH
AMENDMENT UNTIL EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, WAS DECIDED
IN 1947. 

THOSE DEVELOPMENTS IN THE LAST 30 YEARS HAVE HAD UNSETTLING
EFFECTS.  IT WAS, FOR EXAMPLE, NOT UNTIL 1962 THAT STATE-SPONSORED,
V. VITALE, 370 U.S.421.  THAT DECISION BROUGHT MANY PROTESTS, FOR THE
HABIT OF PUTTING ONE SECT'S PRAYER IN PUBLIC SCHOOLS HAD LONG BEEN
PRACTICED.  YET IF THE CATHOLICS, CONTROLLING ONE SCHOOL BOARD, COULD
PUT THEIR PRAYER INTO ONE GROUP OF PUBLIC SCHOOLS, THE MORMONS,
BAPTISTS, MOSLEMS, PRESBYTERIANS, AND OTHERS COULD DO THE SAME, ONCE
THEY GOT CONTROL.  AND SO THE SEEDS OF ESTABLISHMENT WOULD GROW AND A
SECULAR INSTITUTION WOULD BE USED TO SERVE A SECTARIAN END. 

ENGEL WAS AS DISRUPTIVE OF TRADITIONAL STATE PRACTICES AS WAS
STROMBERG.  PRIOR TO STROMBERG, A STATE COULD ARREST AN UNPOPULAR
PERSON WHO MADE A ROUSING SPEECH ON THE CHARGE OF DISORDERLY CONDUCT. 
SINCE STROMBERG, THAT HAS BEEN UNCONSTITUTIONAL.  AND SO THE REVOLUTION
OCCASIONED BY THE FOURTEENTH AMENDMENT HAS PROGRESSED AS ARTICLE AFTER
ARTICLE IN THE BILL OF RIGHTS HAS BEEN INCORPORATED IN IT AND MADE
APPLICABLE TO THE STATES. 

HENCE THE QUESTION IN THE PRESENT CASE MAKES IRRELEVANT THE "TWO
CENTURIES OF UNINTERRUPTED FREEDOM FROM TAXATION," REFERRED TO BY THE
COURT.  ANTE, AT 678.  IF HISTORY BE OUR GUIDE, THEN TAX EXEMPTION OF
CHURCH PROPERTY IN THIS COUNTRY IS INDEED HIGHLY SUSPECT, AS IT AROSE
IN THE EARLY DAYS WHEN THE CHURCH WAS AN AGENCY OF THE STATE.  SEE W.
TORPEY, JUDICIAL DOCTRINES OF RELIGIOUS RIGHTS IN AMERICA 171 (1948). 
THE QUESTION HERE, THOUGH, CONCERNS THE MEANING OF THE ESTABLISHMENT
CLAUSE AND THE FREE EXERCISE CLAUSE MADE APPLICABLE TO THE STATES FOR
ONLY A FEW DECADES AT BEST. 

WITH ALL DUE RESPECT THE GOVERNING PRINCIPLE IS NOT CONTROLLED BY
EVERSON V. BOARD OF EDUCATION, SUPRA.  EVERSON INVOLVED THE USE OF
PUBLIC FUNDS TO BUS CHILDREN TO PAROCHIAL AS WELL AS TO PUBLIC
SCHOOLS.  PAROCHIAL SCHOOLS TEACH RELIGION; YET THEY ARE ALSO
EDUCATIONAL INSTITUTIONS OFFERING COURSES COMPETITIVE WITH PUBLIC
SCHOOLS.  THEY PREPARE STUDENTS FOR THE PROFESSIONS AND FOR ACTIVITIES
IN ALL WALKS OF LIFE.  EDUCATION IN THE SECULAR SENSE WAS COMBINED WITH
RELIGIOUS INDOCTRINATION AT THE PAROCHIAL SCHOOLS INVOLVED IN EVERSON. 
EVEN SO, THE EVERSON DECISION WAS FIVE TO FOUR AND, THOUGH ONE OF THE
FIVE, I HAVE SINCE HAD GRAVE DOUBTS ABOUT IT, BECAUSE I HAVE BECOME
CONVINCED THAT GRANTS TO INSTITUTIONS TEACHING A SECTARIAN CREED
VIOLATE THE ESTABLISHMENT CLAUSE.  SEE ENGEL V. VITALE, SUPRA, AT 443
444 (DOUGLAS, J., CONCURRING). 

THIS CASE, HOWEVER, IS QUITE DIFFERENT.  EDUCATION IS NOT INVOLVED. 
THE FINANCIAL SUPPORT RENDERED HERE IS TO THE CHURCH, THE PLACE OF
WORSHIP.  A TAX EXEMPTION IS A SUBSIDY.  IS MY BROTHER BRENNAN CORRECT
IN SAYING THAT WE WOULD HOLD THAT STATE OR FEDERAL GRANTS TO CHURCHES,
SAY, TO CONSTRUCT THE EDIFICE ITSELF WOULD BE UNCONSTITUTIONAL?  WHAT
IS THE DIFFERENCE BETWEEN THAT KIND OF SUBSIDY AND THE PRESENT
SUBSIDY?  /2/ 

THE PROBLEM TAKES US BACK WHERE MADISON WAS IN 1784 AND 1785 WHEN HE
BATTLED THE ASSESSMENT BILL /3/  IN VIRGINIA.  THAT BILL LEVIED A TAX
FOR THE SUPPORT OF CHRISTIAN CHURCHES, LEAVING TO EACH TAXPAYER THE
CHOICE AS TO "WHAT SOCIETY OF CHRISTIANS" HE WANTED THE TAX PAID; AND
ABSENT SUCH DESIGNATION, THE TAX WAS TO GO FOR EDUCATION.  EVEN SO,
MADISON WAS UNRELENTING IN HIS OPPOSITION.  AS STATED BY MR. JUSTICE
RUTLEDGE: 

"THE MODIFIED ASSESSMENT BILL PASSED SECOND READING IN DECEMBER,
1784, AND WAS ALL BUT ENACTED.  MADISON AND HIS FOLLOWERS, HOWEVER,
MANEUVERED DEFERMENT OF FINAL CONSIDERATION UNTIL NOVEMBER, 1785.  AND
BEFORE THE ASSEMBLY RECONVENED IN THE FALL HE ISSUED HIS HISTORIC
MEMORIAL AND REMONSTRANCE."  EVERSON V. BOARD OF EDUCATION, SUPRA, AT
37 (DISSENTING OPINION)  

THE REMONSTRANCE /4/  STIRRED UP SUCH A STORM OF POPULAR PROTEST
THAT THE ASSESSMENT BILL WAS DEFEATED.  /5/ 

THE REMONSTRANCE COVERS SOME ASPECTS OF THE PRESENT SUBSIDY,
INCLUDING MADISON'S PROTEST IN PARAGRAPH 3 TO A REQUIREMENT THAT ANY
PERSON BE COMPELLED TO CONTRIBUTE EVEN "THREE PENCE" TO SUPPORT A
CHURCH.  ALL MEN, HE MAINTAINED IN PARAGRAPH 4, ENTER SOCIETY "ON EQUAL
CONDITIONS," INCLUDING THE RIGHT TO FREE EXERCISE OF RELIGION: 

"WHILST WE ASSERT FOR OURSELVES A FREEDOM TO EMBRACE, TO PROFESS AND
TO OBSERVE THE RELIGION WHICH WE BELIEVE TO BE OF DIVINE ORIGIN, WE
CANNOT DENY AN EQUAL FREEDOM TO THOSE WHOSE MINDS HAVE NOT YET YIELDED
TO THE EVIDENCE WHICH HAS CONVINCED US.  IF THIS FREEDOM BE ABUSED, IT
IS AN OFFENCE AGAINST GOD, NOT AGAINST MAN:  TO GOD, THEREFORE, NOT TO
MEN, MUST AN ACCOUNT OF IT BE RENDERED.  AS THE BILL VIOLATES EQUALITY
BY SUBJECTING SOME TO PECULIAR BURDENS; SO IT VIOLATES THE SAME
PRINCIPLE, BY GRANTING TO OTHERS PECULIAR EXEMPTIONS." 

MADISON'S ASSAULT ON THE ASSESSMENT BILL WAS IN FACT AN ASSAULT
BASED ON BOTH THE CONCEPTS OF "FREE EXERCISE" AND "ESTABLISHMENT" OF
RELIGION LATER EMBODIED IN THE FIRST AMENDMENT.  MADISON, WHOM WE
RECENTLY CALLED "THE LEADING ARCHITECT OF THE RELIGION CLAUSES OF THE
FIRST AMENDMENT," FLAST V. COHEN, 392 U.S. 83, 103 WAS INDEED THEIR
AUTHOR AND CHIEF PROMOTER.  /6/ AS MR. JUSTICE RUTLEDGE SAID: 

     "ALL THE GREAT INSTRUMENTS OF THE VIRGINIA STRUGGLE FOR

  RELIGIOUS LIBERTY THUS BECAME WARP AND WOOF OF OUR CONSTITUTIONAL

  TRADITION, NOT SIMPLY BY THE COURSE OF HISTORY, BUT BY THE COMMON

  UNIFYING FORCE OF MADISON'S LIFE, THOUGHT AND SPONSORSHIP.  HE

  EPITOMIZED THE WHOLE OF THAT TRADITION IN THE AMENDMENT'S

  COMPACT, BUT NONETHELESS COMPREHENSIVE, PHRASING."  EVERSON V.

  BOARD OF EDUCATION, SUPRA, AT 39. 

THE COURT SEEKS TO AVOID THIS HISTORIC ARGUMENT AS TO THE MEANING OF
"ESTABLISHMENT" AND "FREE EXERCISE" BY RELYING ON THE LONG PRACTICE OF
THE STATES IN GRANTING THE SUBSIDIES CHALLENGED HERE. 

CERTAINLY GOVERNMENT MAY NOT LAY A TAX ON EITHER WORSHIPING OR
PREACHING.  IN MURDOCK V. PENNSYLVANIA, 319 U.S. 105, WE RULED ON A
STATE LICENSE TAX LEVIED ON RELIGIOUS COLPORTEURS AS A CONDITION TO
PURSUIT OF THEIR ACTIVITIES.  IN HOLDING THE TAX UNCONSTITUTIONAL WE
SAID: 

"THE POWER TO TAX THE EXERCISE OF A PRIVILEGE IS THE POWER TO
CONTROL OR SUPPRESS ITS ENJOYMENT.  MAGNANO CO. V. HAMILTON, 292 U.S.
40, 44-45, AND CASES CITED.  THOSE WHO CAN TAX THE EXERCISE OF THIS
RELIGIOUS PRACTICE CAN MAKE ITS EXERCISE SO COSTLY AS TO DEPRIVE IT OF
THE RESOURCES NECESSARY FOR ITS MAINTENANCE.  THOSE WHO CAN TAX THE
PRIVILEGE OF ENGAGING IN THIS FORM OF MISSIONARY EVANGELISM CAN CLOSE
ITS DOORS TO ALL THOSE WHO DO NOT HAVE A FULL PURSE.  SPREADING
RELIGIOUS BELIEFS IN THIS ANCIENT AND HONORABLE MANNER WOULD THUS BE
DENIED THE NEEDY.  THOSE WHO CAN DEPRIVE RELIGIOUS GROUPS OF THEIR
COLPORTEURS CAN TAKE FROM THEM A PART OF THE VITAL POWER OF THE PRESS
WHICH HAS SURVIVED FROM THE REFORMATION."  ID., AT 112. 

CHURCHES, LIKE NEWSPAPERS ALSO ENJOYING FIRST AMENDMENT RIGHTS, HAVE
NO CONSTITUTIONAL IMMUNITY FROM ALL TAXES.  AS WE SAID IN MURDOCK: 

     "WE DO NOT MEAN TO SAY THAT RELIGIOUS GROUPS AND THE PRESS ARE

  FREE FROM ALL FINANCIAL BURDENS OF GOVERNMENT.  SEE GROSJEAN V.

  AMERICAN PRESS CO., 297 U.S. 233, 250.  WE HAVE HERE SOMETHING

  QUITE DIFFERENT, FOR EXAMPLE, FROM A TAX ON THE INCOME OF ONE WHO

ENGAGES IN RELIGIOUS ACTIVITIES OR A TAX ON PROPERTY USED OR

  EMPLOYED IN CONNECTION WITH THOSE ACTIVITIES.  IT IS ONE THING TO

  IMPOSE A TAX ON THE INCOME OR PROPERTY OF A PREACHER.  IT IS

  QUITE ANOTHER THING TO EXACT A TAX FROM HIM FOR THE PRIVILEGE OF

  DELIVERING A SERMON."  IBID. 

STATE AID TO PLACES OF WORSHIP, WHETHER IN THE FORM OF DIRECT GRANTS
OR TAX EXEMPTION, TAKES US BACK TO THE ASSESSMENT BILL AND THE
REMONSTRANCE.  THE CHURCH QUA CHURCH WOULD NOT BE ENTITLED TO THAT
SUPPROT FROM BELIEVERS AND FROM NONBELIEVERS ALIKE.  YET THE CHURCH QUA
NONPROFIT, CHARITABLE INSTITUTION IS ONE OF MANY THAT RECEIVE A FORM OF
SUBSIDY THROUGH TAX EXEMPTION.  TO BE SURE, THE NEW YORK STATUTE /7/
DOES NOT SINGLE OUT THE CHURCH FOR GRANT OR FAVOR.  IT INCLUDES
CHURCHES IN A LONG LIST OF NONPROFIT ORGANIZATIONS:  FOR THE MORAL OR
MENTAL IMPROVEMENT OF MEN AND WOMEN (SEC. 420); FOR CHARITABLE,
HOSPITAL, OR EDUCATIONAL PURPOSES (IBID.); FOR PLAYGROUNDS (IBID.); FOR
SCIENTIFIC OR LITERARY OBJECTS (IBID.); FOR BAR ASSOCIATIONS, MEDICAL
SOCIETIES, OR LIBRARIES (IBID.); FOR PATRIOTIC AND HISTORICAL PURPOSES
(IBID.); FOR CEMETERIES (IBID.); FOR THE ENFORCEMENT OF LAWS RELATING
TO CHILDREN OR ANIMALS (IBID.); FOR OPERA HOUSES (SEC. 426); FOR
FRATERNAL ORGANIZATIONS (SEC. 428); FOR ACADEMIES OF MUSIC (SEC. 434);
FOR VETERANS' ORGANIZATIONS (SEC. 452); FOR PHARMACEUTICAL SOCIETIES
(SEC. 472); AND FOR DENTAL SOCIETIES (SEC. 474).  WHILE THE
BENEFICIARIES COVER A WIDE RANGE, "ATHEISTIC," "AGNOSTIC," OR
"ANTITHEOLOGICAL" GROUPS DO NOT SEEM TO BE INCLUDED. 

CHURCHES PERFORM SOME FUNCTIONS THAT A STATE WOULD CONSTITUTIONALLY
BE EMPOWERED TO PERFORM.  I REFER TO NONSECTARIAN SOCIAL WELFARE
OPERATIONS SUCH AS THE CARE OF ORPHANED CHILDREN AND THE DESTITUTE AND
PEOPLE WHO ARE SICK.  A TAX EXEMPTION TO AGENCIES PERFORMING THOSE
FUNCTIONS WOULD THEREFORE BE AS CONSTITUTIONALLY PROPER AS THE GRANT OF
DIRECT SUBSIDIES TO THEM.  UNDER THE FIRST AMENDMENT A STATE MAY NOT,
HOWEVER, PROVIDE WORSHIP IF PRIVATE GROUPS FAIL TO DO SO.  AS MR.
JUSTICE JACKSON SAID: 

"(A STATE) MAY SOCIALIZE UTILITIES AND ECONOMIC ENTERPRISES AND MAKE
TAXPAYERS' BUSINESS OUT OF WHAT CONVENTIONALLY HAD BEEN PRIVATE
BUSINESS.  IT MAY MAKE PUBLIC BUSINESS OF INDIVIDUAL WELFARE, HEALTH,
EDUCATION, ENTERTAINMENT OR SECURITY.  BUT IT CANNOT MAKE PUBLIC
BUSINESS OF RELIGIOUS WORSHIP OR INSTRUCTION, OR OF ATTENDANCE AT
RELIGIOUS INSTITUTIONS OF ANY CHARACTER . . . . THAT IS A DIFFERENCE
WHICH THE CONSTITUTION SETS UP BETWEEN RELIGION AND ALMOST EVERY OTHER
SUBJECT MATTER OF LEGISLATION, A DIFFERENCE WHICH GOES TO THE VERY ROOT
OF RELIGIOUS FREEDOM AND WHICH THE COURT IS OVERLOOKING TODAY." 
EVERSON V. BOARD OF EDUCATION, SUPRA, AT 26 (DISSENTING OPINION). 

THAT IS A MAJOR DIFFERENCE BETWEEN CHURCHES ON THE ONE HAND AND THE
REST OF THE NONPROFIT ORGANIZATIONS ON THE OTHER.  GOVERNMENT COULD
PROVIDE OR FINANCE OPERAS, HOSPITALS, HISTORICAL SOCIETIES, AND ALL THE
REST BECAUSE THEY REPRESENT SOCIAL WELFARE PROGRAMS WITHIN THE REACH OF
THE POLICE POWER.  IN CONTRAST, GOVERNMENT MAY NOT PROVIDE OR FINANCE
WORSHIP BECAUSE OF THE ESTABLISHMENT CLAUSE ANY MORE THAN IT MAY SINGLE
OUT "ATHEISTIC" OR "AGNOSTIC" CENTERS OR GROUPS AND CREATE OR FINANCE
THEM. 

THE BROOKINGS INSTITUTION, WRITING IN 1933, BEFORE THE APPLICATION
OF THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT TO THE STATES, SAID
ABOUT TAX EXEMPTIONS OF RELIGIOUS GROUPS:  /8/ 

     "TAX EXEMPTION, NO MATTER WHAT ITS FORM, IS ESSENTIALLY A

  GOVERNMENT GRANT OR SUBSIDY.  SUCH GRANTS WOULD SEEM TO BE

  JUSTIFIED ONLY IF THE PURPOSE FOR WHICH THEY ARE MADE IS ONE FOR

  WHICH THE LEGISLATIVE BODY WOULD BE EQUALLY WILLING TO MAKE A

  DIRECT APPROPRIATION FROM PUBLIC FUNDS EQUAL TO THE AMOUNT OF THE

  EXEMPTION.  THIS TEST WOULD NOT BE MET EXCEPT IN THE CASE WHERE

  THE EXEMPTION IS GRANTED TO ENCOURAGE CERTAIN ACTIVITIES OF

  PRIVATE INTERESTS, WHICH, IF NOT THUS PERFORMED, WOULD HAVE TO BE

  ASSUMED BY THE GOVERNMENT AT AN EXPENDITURE AT LEAST AS GREAT AS

  THE VALUE OF THE EXEMPTION." 

SINCE 1947, WHEN THE ESTABLISHMENT CLAUSE WAS MADE APPLICABLE TO THE
STATES, THAT REPORT WOULD HAVE TO STATE THAT THE EXEMPTION WOULD BE
JUSTIFIED ONLY WHERE "THE LEGISLATIVE BODY COULD MAKE" AN APPROPRIATION
FOR THE CAUSE. 

ON THE RECORD OF THIS CASE, THE CHURCH QUA NONPROFIT, CHARITABLE
ORGANIZATION IS INTERTWINED WITH THE CHURCH QUA CHURCH.  A CHURCH MAY
USE THE SAME FACILITIES, RESOURCES, AND PERSONNEL IN CARRYING OUT BOTH
ITS SECULAR AND ITS SECTARIAN ACTIVITIES.  THE TWO ARE UNITARY AND ON
THE PRESENT RECORD HAVE NOT BEEN SEPARATED ONE FROM THE OTHER.  THE
STATE HAS A PUBLIC POLICY OF ENCOURAGING PRIVATE PUBLIC WELFARE
ORGANIZATIONS, WHICH IT DESIRES TO ENCOURAGE THROUGH TAX EXEMPTION. 
WHY MAY IT NOT DO SO AND INCLUDE CHURCHES QUA WELFARE ORGANIZATIONS ON
A NONDISCRIMINATORY BASIS?  THAT AVOIDS, IT IS ARGUED, A DISCRIMINATION
AGAINST CHURCHES AND IN A REAL SENSE MAINTAINS NEUTRALITY TOWARD
RELIGION WHICH THE FIRST AMENDMENT WAS DESIGNED TO FOSTER.  WELFARE
SERVICES, WHETHER PERFORMED BY CHURCHES OR BY NONRELIGIOUS GROUPS, MAY
WELL SERVE THE PUBLIC WELFARE.     WHETHER A PARTICULAR CHURCH SEEKING
AN EXEMPTION FOR ITS WELFARE WORK COULD CONSTITUTIONALLY PASS MUSTER
WOULD DEPEND ON THE SPECIAL FACTS.  THE ASSUMPTION IS THAT THE CHURCH
IS A PURELY PRIVATE INSTITUTION, PROMOTING A SECTARIAN CAUSE.  THE
CREED, TEACHING, AND BELIEFS OF ONE MAY BE UNDESIRABLE OR EVEN
REPULSIVE TO OTHERS.  ITS SECTARIAN FAITH SETS IT APART FROM ALL OTHERS
AND MAKES IT DIFFICULT TO EQUATE ITS CONSTITUENCY WITH THE GENERAL
PUBLIC.  THE EXTENT THAT ITS FACILITIES ARE OPEN TO ALL MAY ONLY
INDICATE THE NATURE OF ITS PROSELYTISM.  YET THOUGH A CHURCH COVERS UP
ITS RELIGIOUS SYMBOLS IN WELFARE WORK, ITS WELFARE ACTIVITIES MAY
MERELY BE A PHASE OF SECTARIAN ACTIVITY.  I HAVE SAID ENOUGH TO
INDICATE THE NATURE OF THIS TAX EXEMPTION PROBLEM.     DIRECT FINANCIAL
AID TO CHURCHES OR TAX EXEMPTIONS TO THE CHURCH QUA CHURCH IS NOT, IN
MY VIEW, EVEN ARGUABLY PERMITTED.  SECTARIAN CAUSES ARE CERTAINLY NOT
ANTIPUBLIC AND MANY WOULD RATE THEIR OWN CHURCH OR PERHAPS ALL CHURCHES
AS THE HIGHEST FORM OF WELFARE.  THE DIFFICULTY IS THAT SECTARIAN
CAUSES MUST REMAIN IN THE PRIVATE DOMAIN NOT SUBJECT TO PUBLIC CONTROL
OR SUBSIDY.  THAT SEEMS TO ME TO BE THE REQUIREMENT OF THE
ESTABLISHMENT CLAUSE.  AS EDMOND CAHN SAID: 

     "IN AMERICA, MADISON SUBMITTED MOST ASTUTELY, THE RIGHTS OF

  CONSCIENCE MUST BE KEPT NOT ONLY FREE BUT EQUAL AS WELL.  AND IN

VIEW OF THE ENDLESS VARIATIONS-- NOT ONLY AMONG THE NUMEROUS

  SECTS, BUT ALSO AMONG THE ORGANIZED ACTIVITIES THEY PURSUED AND

  THE RELATIVE EMOTIONAL VALUES THEY ATTACHED TO THEIR ACTIVITIES--

  HOW COULD ANY SPECIES OF GOVERNMENT ASSISTANCE BE CONSIDERED

  GENUINELY EQUAL FROM SECT TO SECT?  IF, FOR EXAMPLE, A STATE

  SHOULD ATTEMPT TO SUBSIDIZE ALL SECTARIAN SCHOOLS WITHOUT

  DISCRIMINATION, IT WOULD NECESSARILY VIOLATE THE PRINCIPLE

  EQUALITY BECAUSE CERTAIN SECTS FELT IMPELLED TO CONDUCT A LARGE

  NUMBER OF SUCH SCHOOLS, OTHERS FEW, OTHERS NONE.  /9/  HOW COULD

  THE OFFICERS OF GOVERNMENT BEGIN TO MEASURE THE INTANGIBLE

  FACTORS THAT A TRUE EQUALITY OF TREATMENT WOULD INVOLVE, I.E.,

THE RELATIVE INTENSITY OF RELIGIOUS ATTACHMENT TO PAROCHIAL

  EDUCATION THAT THE RESPECTIVE GROUPS REQUIRED OF THEIR LAY AND

  CLERICAL MEMBERS?  IT WOULD BE PRESUMPTUOUS EVEN TO INQUIRE. 

  THUS, JUST AS IN MATTERS OF RACE OUR BELATED RECOGNITION OF

  INTANGIBLE FACTORS HAS FINALLY LED US TO THE MAXIM 'SEPARATE

  THEREFORE UNEQUAL,' SO IN MATTERS OF RELIGION MADISON'S IMMEDIATE

  RECOGNITION OF INTANGIBLE FACTORS LED US PROMPTLY TO THE MAXIM

  'EQUAL THEREFORE SEPARATE.'  EQUALITY WAS OUT OF THE QUESTION

  WITHOUT TOTAL SEPARATION."  CONFRONTING INJUSTICE 186-187

  (1967). 

THE EXEMPTIONS PROVIDED HERE INSOFAR AS WELFARE PROJECTS ARE
CONCERNED MAY HAVE THE RING OF NEUTRALITY.  BUT SUBSIDIES EITHER
THROUGH DIRECT GRANT OR TAX EXEMPTION FOR SECTARIAN CAUSES, WHETHER
CARRIED ON BY CHURCH QUA OR CHURCH QUA WELFARE AGENCY, MUST BE TREATED
DIFFERENTLY, LEST WE IN TIME ALLOW THE CHURCH QUA CHURCH TO BE ON THE
PUBLIC PAYROLL, WHICH I FEAR, IS IMMINENT. 

AS STATED BY MY BROTHER BRENNAN IN ABINGTON SCHOOL DIST. V. SCHEMPP,
374 U.S. 203, 259 (CONCURRING OPINION), "IT IS NOT ONLY THE NONBELIEVER
WHO FEARS THE INJECTION OF SECTARIAN DOCTRINES AND CONTROVERSIES INTO
THE CIVIL POLITY, BUT IN AS HIGH DEGREE IT IS THE DEVOUT BELIEVER WHO
FEARS THE SECULARIZATION OF A CREED WHICH BECOMES TOO DEEPLY INVOLVED
WITH AND DEPENDENT UPON THE GOVERNMENT." 

MADISON AS PRESIDENT VETOED A BILL INCORPORATING THE PROTESTANT
EPISCOPAL CHURCH IN ALEXANDRIA, VIRGINIA, AS BEING A VIOLATION OF THE
ESTABLISHMENT CLAUSE.  HE SAID, INTER ALIA:  /10/ 

"THE BILL VESTS IN THE SAID INCORPORATED CHURCH AN AUTHORITY TO
PROVIDE FOR THE SUPPORT OF THE POOR AND THE EDUCATION OF POOR CHILDREN
OF THE SAME, AN AUTHORITY WHICH, BEING ALTOGETHER SUPERFLUOUS IF THE
PROVISION IS TO BE THE RESULT OF PIOUS CHARITY, WOULD BE A PRECEDENT
FOR GIVING TO RELIGIOUS SOCIETIES AS SUCH A LEGAL AGENCY IN CARRYING
INTO EFFECT A PUBLIC AND CIVIL DUTY." 

HE ALSO VETOED A BILL THAT RESERVED A PARCEL OF FEDERAL LAND "FOR
THE USE" OF THE BAPTIST CHURCH, AS VIOLATING THE ESTABLISHMENT CLAUSE. 
/11/ 

WHAT MADISON WOULD HAVE THOUGHT OF THE PRESENT STATE SUBSIDY TO
CHURCHES-- A TAX EXEMPTION AS DISTINGUISHED FROM AN OUTRIGHT GRANT-- NO
ONE CAN SAY WITH CERTAINTY.  THE FACT THAT VIRGINIA EARLY GRANTED
CHURCH TAX EXEMPTIONS CANNOT BE CREDITED TO MADISON.  CERTAINLY HE
SEEMS TO HAVE BEEN OPPOSED.  IN HIS PAPER MONOPOLIES, PERPETUITIES,
CORPORATIONS, ECCLESIASTICAL ENDOWMENTS HE WROTE:  /12/  "STRONGLY
GUARDED AS IS THE SEPARATION BETWEEN RELIGION & GOVT IN THE
CONSTITUTION OF THE UNITED STATES THE DANGER OF ENCROACHMENT BY
ECCLESIASTICAL BODIES, MAY BE ILLUSTRATED BY PRECEDENTS ALREADY
FURNISHED IN THEIR SHORT HISTORY."  AND HE REFERRED, INTER ALIA, TO THE
"ATTEMPT IN KENTUCKY FOR EXAMPLE, WHERE IT WAS PROPOSED TO EXEMPT
HOUSES OF WORSHIP FROM TAXES."  FROM THESE THREE STATEMENTS, MADISON,
IT SEEMS, OPPOSED ALL STATE SUBSIDIES TO CHURCHES.  CF. D. ROBERTSON,
SHOULD CHURCHES BE TAXED?  60-61 (1968). 

WE SHOULD ADHERE TO WHAT WE SAID IN TORCASO V. WATKINS, 367 U.S.,AT
495, THAT NEITHER A STATE NOR THE FEDERAL GOVERNMENT "CAN
CONSTITUTIONALLY PASS LAWS OR IMPOSE REQUIREMENTS WHICH AID ALL
RELIGIONS AS AGAINST NONBELIEVERS, AND NEITHER CAN AID THOSE RELIGIONS
BASED ON A BELIEF IN THE EXISTENCE OF GOD AS AGAINST THOSE RELIGIONS
FOUNDED ON DIFFERENT BELIEFS." 

UNLESS WE ADHERE TO THAT PRINCIPLE, WE DO NOT GIVE FULL SUPPORT
EITHER TO 

IF A CHURCH CAN BE EXEMPTED FROM PAYING REAL ESTATE TAXES, WHY MAY
NOT IT 

IF A CHURCH CAN BE EXEMPTED FROM PAYING REAL ESTATE TAXES, WHY MAY
NOT IT BE MADE EXEMPT FROM PAYING SPECIAL ASSESSMENTS?  THE BENEFITS IN
THE TWO CASES DIFFER ONLY IN DEGREE; AND THE BURDEN ON NONBELIEVERS IS
LIKEWISE NO DIFFERENT IN KIND.  /13/ 

THE RELIGIOUSLY USED REAL ESTATE OF THE CHURCHES TODAY CONSTITUTES A
VAST DOMAIN.  SEE M. LARSON & C. LOWELL, THE CHURCHES:  THEIR RICHES,
REVENUES, AND IMMUNITIES (1969).  THEIR ASSETS TOTAL OVER $141 BILLION
AND THEIR ANNUAL INCOME AT LEAST $22 BILLION.  ID., AT 232.  AND THE
EXTENT TO WHICH THEY ARE FEEDING FROM THE PUBLIC TROUGH IN A VARIETY OF
FORMS IS ALARMING.  ID., C. 10. 

WE ARE ADVISED THAT SINCE 1968 AT LEAST FIVE STATES HAVE UNDERTAKEN
TO GIVE SUBSIDIES TO PAROCHIAL AND OTHER PRIVATE SCHOOLS /14/ --
PENNSYLVANIA, OHIO, NEW YORK, CONNECTICUT, AND RHODE ISLAND.  AND IT IS
REPORTED THAT UNDER TWO FEDERAL ACTS, THE ELEMENTARY AND SECONDARY
EDUCATION ACT OF 1965, 79 STAT.27, AND THE HIGHER EDUCATION ACT OF
1965, 79 STAT.1219, BILLIONS OF DOLLARS HAVE BEEN GRANTED TO PAROCHIAL
AND OTHER PRIVATE SCHOOLS. 

THE FEDERAL GRANTS TO ELEMENTARY AND SECONDARY SCHOOLS UNDER 79
STAT.27 WERE MADE TO THE STATES WHICH IN TURN MADE ADVANCES TO
ELEMENTARY AND SECONDARY SCHOOLS.  THOSE FIGURES ARE NOT AVAILABLE. 

BUT THE FEDERAL GRANTS TO PRIVATE INSTITUTIONS OF HIGHER EDUCATION
ARE REVEALED IN DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW),
DIGEST OF EDUCATIONAL STATISTICS 16 (1969).  THESE SHOW IN BILLIONS OF
DOLLARS THE FOLLOWING:  /15/

  1965-66...................................$1.4 1966
67...................................$1.6

  1967-68...................................$1.7 1968
69...................................$1.9

  1969-70...................................$2.1 IT IS AN OLD, OLD
PROBLEM.  MADISON ADVERTED TO IT:  /16/ 

HC715 

"ARE THERE NOT ALREADY EXAMPLES IN THE U.S. OF ECCLESIASTICAL WEALTH
EQUALLY BEYOND ITS OBJECT AND THE FORESIGHT OF THOSE WHO LAID THE
FOUNDATION OF IT?  IN THE U.S. THERE IS A DOUBLE MOTIVE FOR FIXING
LIMITS IN THIS CASE, BECAUSE WEALTH MAY INCREASE NOT ONLY FROM
ADDITIONAL GIFTS, BUT FROM EXORBITANT ADVANCES IN THE VALUE OF THE
PRIMITIVE ONE.  IN GRANTS OF VACANT LANDS, AND OF LANDS IN THE VICINITY
OF GROWING TOWNS & CITIES THE INCREASE OF VALUE IS OFTEN SUCH AS IF
FORESEEN, WOULD ESSENTIALLY CONTROUL THE LIBERALITY CONFIRMING THEM. 
THE PEOPLE OF THE U.S. OWE THEIR INDEPENDENCE & THEIR LIBERTY, TO THE
WISDOM OF DESCRYING IN THE MINUTE TAX OF 3 PENCE ON TEA, THE MAGNITUDE
OF THE EVIL COMPRIZED IN THE PRECEDENT.  LET THEM EXERT THE SAME
WISDOM, IN WATCHING AGST EVERY EVIL LURKING UNDER PLAUSIBLE DISGUISES,
AND GROWING UP FROM SMALL BEGINNINGS."  /17/ 

IF BELIEVERS ARE ENTITLED TO PUBLIC FINANCIAL SUPPORT, SO ARE
NONBELIEVERS.  A BELIEVER AND NONBELIEVER UNDER THE PRESENT LAW ARE
TREATED DIFFERENTLY BECAUSE OF THE ARTICLES OF THEIR FAITH.  BELIEVERS
ARE DOUBTLESS COMFORTED THAT THE CAUSE OF RELIGION IS BEING FOSTERED BY
THIS LEGISLATION.  YET ONE OF THE MANDATES OF THE FIRST AMENDMENT IS TO
PROMOTE A VIABLE, PLURALISTIC SOCIETY AND TO KEEP GOVERNMENT NEUTRAL,
NOT ONLY BETWEEN SECTS, BUT ALSO BETWEEN BELIEVERS AND NONBELIEVERS. 
THE PRESENT INVOLVEMENT OF GOVERNMENT IN RELIGION MAY SEEM DE MINIMIS. 
BUT IT IS, I FEAR, A LONG STEP DOWN THE ESTABLISHED PATH.  PERHAPS I
HAVE BEEN MISINFORMED.  BUT AS I HAVE READ THE CONSTITUTION AND ITS
PHILOSOPHY, I GATHERED THAT INDEPENDENCE WAS THE PRICE OF LIBERTY. 

I CONCLUDE THAT THIS TAX EXEMPTION IS UNCONSTITUTIONAL. 

       APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING 

ASSESSMENT BILL.  THE DECEMBER 24, 1784, PRINT REPORDUCED IN THE
SUPPLEMENTAL APPENDIX TO THE DISSENTING OPINION OF RUTLEDGE, J., IN
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 72:

  "A BILL ESTABLISHING A PROVISION FOR TEACHERS OF THE

        CHRISTIAN RELIGION. 

"WHEREAS THE GENERAL DIFFUSION OF CHRISTIAN KNOWLEDGE HATH A NATURAL
TENDENCY TO CORRECT THE MORALS OF MEN, RESTRAIN THEIR VICES, AND
PRESERVE THE PEACE OF SOCIETY; WHICH CANNOT BE EFFECTED WITHOUT A
COMPETENT PROVISION FOR LEARNED TEACHERS, WHO MAY BE THEREBY ENABLED TO
DEVOTE THEIR TIME AND ATTENTION TO THE DUTY OF INSTRUCTING SUCH
CITIZENS, AS FROM THEIR CIRCUMSTANCES AND WANT OF EDUCATION, CANNOT
OTHERWISE ATTAIN SUCH KNOWLEDGE; AND IT IS JUDGED THAT SUCH PROVISION
MAY BE MADE BY THE LEGISLATURE, WITHOUT COUNTERACTING THE LIBERAL
PRINCIPLE HERETOFORE ADOPTED AND INTENDED TO BE PRESERVED BY ABOLISHING
ALL DISTINCTIONS OF PRE-EMINENCE AMONGST THE DIFFERENT SOCIETIES OR
COMMUNITIES OF CHRISTIANS; 

"BE IT THEREFORE ENACTED BY THE GENERAL ASSEMBLY, THAT FOR THE
SUPPORT OF CHRISTIAN TEACHERS, PER CENTUM ON THE AMOUNT, OR IN THE
POUND ON THE SUM PAYABLE FOR TAX ON THE PROPERTY WITHIN THIS
COMMONWEALTH, IS HEREBY ASSESSED, AND SHALL BE PAID BY EVERY PERSON
CHARGEABLE WITH THE SAID TAX AT THE TIME THE SAME SHALL BECOME DUE; AND
THE SHERIFFS OF THE SEVERAL COUNTIES SHALL HAVE POWER TO LEVY AND
COLLECT THE SAME IN THE SAME MANNER AND UNDER THE LIKE RESTRICTIONS AND
LIMITATIONS, AS ARE OR MAY BE PRESCRIBED BY THE LAWS FOR RAISING THE
REVENUES OF THIS STATE. 

"AND BE IT ENACTED, THAT FOR EVERY SUM SO PAID, THE SHERIFF OR
COLLECTOR SHALL GIVE A RECEIPT, EXPRESSING THEREIN TO WHAT SOCIETY OF
CHRISTIANS THE PERSON FROM WHOM HE MAY RECEIVE THE SAME SHALL DIRECT
THE MONEY TO BE PAID, KEEPING A DISTINCT ACCOUNT THEREOF IN HIS BOOKS. 
THE SHERIFF OF EVERY COUNTY, SHALL, ON OR BEFORE THE DAY OF IN EVERY
YEAR, RETURN TO THE COURT, UPON OATH, TWO ALPHABETICAL LISTS OF THE
PAYMENTS TO HIM MADE, DISTINGUISHING IN COLUMNS OPPOSITE TO THE NAMES
OF THE PERSONS WHO SHALL HAVE PAID THE SAME, THE SOCIETY TO WHICH THE
MONEY SO PAID WAS BY THEM APPRECIATED; AND ONE COLUMN FOR THE NAMES
WHERE NO APPROPRIATION SHALL BE MADE.  ONE OF WHICH LISTS, AFTER BEING
RECORDED IN A BOOK TO BE KEPT FOR THAT PURPOSE, SHALL BE FILED BY THE
CLERK IN HIS OFFICE; THE OTHER SHALL BY THE SHERIFF BE FIXED UP IN THE
COURT-HOUSE, THERE TO REMAIN FOR THE INSPECTION OF ALL CONCERNED.  AND
THE SHERIFF, AFTER DEDUCTING FIVE PER CENTUM FOR THE COLLECTION, SHALL
FORTHWITH PAY TO SUCH PERSON OR PERSONS AS SHALL BE APPOINTED TO
RECEIVE THE SAME BY THE VESTRY, ELDERS, OR DIRECTORS, HOWEVER
DENOMINATED OF EACH SUCH SOCIETY, THE SUM SO STATED TO BE DUE TO THAT
SOCIETY; OR IN DEFAULT THEREOF, UPON THE MOTION OF SUCH PERSON OR
PERSONS TO THE NEXT OR ANY SUCCEEDING COURT, EXECUTION SHALL BE AWARDED
FOR THE SAME AGAINST THE SHERIFF AND HIS SECURITY, HIS AND THEIR
EXECUTORS OR ADMINISTRATORS; PROVIDED THAT TEN DAYS PREVIOUS NOTICE BE
GIVEN OF SUCH MOTION.  AND UPON EVERY SUCH EXECUTION, THE OFFICER
SERVING THE SAME SHALL PROCEED TO IMMEDIATE SALE OF THE ESTATE TAKEN,
AND SHALL NOT ACCEPT OF SECURITY FOR PAYMENT AT THE END OF THREE
MONTHS, NOR TO HAVE THE GOODS FORTHCOMING AT THE DAY OF SALE; FOR HIS
BETTER DIRECTION WHEREIN, THE CLERK SHALL ENDORSE UPON EVERY SUCH
EXECUTION THAT NO SECURITY OF ANY KIND SHALL BE TAKEN. 

"AND BE IT FURTHER ENACTED, THAT THE MONEY TO BE RAISED BY VIRTUE OF
THIS ACT, SHALL BE BY THE VESTRIES, ELDERS, OR DIRECTORS OF EACH
RELIGIOUS SOCIETY, APPROPRIATED TO A PROVISION FOR A MINISTER OR
TEACHER OF THE GOSPEL OF THEIR DENOMINATION, OR THE PROVIDING PLACES OF
DIVINE WORSHIP, AND TO NONE OTHER USE WHATSOEVER; EXCEPT IN THE
DENOMINATIONS OF QUAKERS AND MENONISTS, WHO MAY RECEIVE WHAT IS
COLLECTED FROM THEIR MEMBERS, AND PLACE IT IN THEIR GENERAL FUND, TO BE
DISPOSED OF IN A MANNER WHICH THEY SHALL THINK BEST CALCULATED TO
PROMOTE THEIR PARTICULAR MODE OF WORSHIP. 

"AND BE IT ENACTED, THAT ALL SUMS WHICH AT THE TIME OF PAYMENT TO
THE SHERIFF OR COLLECTOR MAY NOT BE APPROPRIATED BY THE PERSON PAYING
THE SAME, SHALL BE ACCOUNTED FOR WITH THE COURT IN MANNER AS BY THIS
ACT IS DIRECTED; AND AFTER DEDUCTING FOR HIS COLLECTION, THE SHERIFF
SHALL PAY THE AMOUNT THEREOF (UPON ACCOUNT CERTIFIED BY THE COURT TO
THE AUDITORS OF PUBLIC ACCOUNTS, AND BY THEM TO THE TREASURER) IN TO
THE PUBLIC TREASURY, TO BE DISPOSED OF UNDER THE DIRECTION OF THE
GENERAL ASSEMBLY, FOR THE ENCOURAGEMENT OF SEMINARIES OF LEARNING
WITHIN THE COUNTIES WHENCE SUCH SUMS SHALL ARISE, AND TO NO OTHER USE
OR PURPOSE WHATSOEVER. 

"THIS ACT SHALL COMMENCE, AND BE IN FORCE, FROM AND AFTER THE . . .
DAY OF . . . IN THE YEAR . . .     "A COPY FROM THE ENGROSSED BILL. 

              "JOHN BECKLEY, C.H.D." 

        APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING  /16/ 

MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS, AS
REPRODUCED IN THE APPENDIX TO THE DISSENTING OPINION OF RUTLEDGE, J.,
IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 63 (2 THE WRITINGS OF
JAMES MADISON 183-191 (G. HUNT ED. 1901)): 

"WE, THE SUBSCRIBERS, CITIZENS OF THE SAID COMMONWEALTH, HAVING
TAKEN INTO SERIOUS CONSIDERSATION, A BILL PRINTED BY ORDER OF THE LAST
SESSION OF GENERAL ASSEMBLY, ENTITLED, 'A BILL ESTABLISHING A PROVISION
FOR TEACHERS OF THE CHRISTIAN RELIGION,' AND CONCEIVING THAT THE SAME,
IF FINALLY ARMED WITH THE SANCTIONS OF A LAW, WILL BE A DANGEROUS ABUSE
OF POWER, ARE BOUND AS FAITHFUL MEMBERS OF A FREE STATE, TO REMONSTRATE
AGAINST IT, AND TO DECLARE THE REASONS BY WHICH WE ARE DETERMINED.  WE
REMONSTRATE AGAINST THE SAID BILL, 

"1.  BECAUSE WE HOLD IT FOR A FUNDAMENTAL AND UNDENIABLE TRUTH,
'THAT RELIGION OR THE DUTY WHICH WE OWE TO OUR CREATOR AND THE MANNER
OF DISCHARGING IT, CAN BE DIRECTED ONLY BY REASON AND CONVICTION, NOT
BY FORCE OR VIOLENCE.'  THE RELIGION THEN OF EVERY MAN MUST BE LEFT TO
THE CONVICTION AND CONSCIENCE OF EVERY MAN; AND IT IS THE RIGHT OF
EVERY MAN TO EXERCISE IT AS THESE MAY DICTATE.  THIS RIGHT IS IN ITS
NATURE AN UNALIENABLE RIGHT.  IT IS UNALIENABLE; BECAUSE THE OPINIONS
OF MEN, DEPENDING ONLY ON THE EVIDENCE CONTEMPLATED BY THEIR OWN MINDS,
CANNOT FOLLOW THE DICTATES OF OTHER MEN:  IT IS UNALIENABLE ALSO;
BECAUSE WHAT IS HERE A RIGHT TOWARDS MEN, IS A DUTY TOWARDS THE
CREATOR.  IT IS THE DUTY OF EVERY MAN TO RENDER TO THE CREATOR SUCH
HOMAGE, AND SUCH ONLY, AS HE BELIEVES TO BE ACCEPTABLE TO HIM.  THIS
DUTY IS PRECEDENT BOTH IN ORDER OF TIME AND DEGREE OF OBLIGATION, TO
THE CLAIMS OF CIVIL SOCIETY.  BEFORE ANY MAN CAN BE CONSIDERED AS A
MEMBER OF CIVIL SOCIETY, HE MUST BE CONSIDERED AS A SUBJECT OF THE
GOVERNOR OF THE UNIVERSE:  AND IF A MEMBER OF CIVIL SOCIETY, WHO
ENTERES INTO ANY SUBORDINATE ASSOCIATION, MUST ALWAYS DO IT WITH A
RESERVATION OF HIS DUTY TO THE GENERAL AUTHORITY; MUCH MORE MUST EVERY
MAN WHO BECOMES A MEMBER OF ANY PARTICULAR CIVIL SOCIETY, DO IT WITH A
SAVING OF HIS ALLEGIANCE TO THE UNIVERSAL SOVEREIGN.  WE MAINTAIN
THEREFORE THAT IN MATTERS OF RELIGION, NO MAN'S RIGHT IS ABRIDGED BY
THE INSTITUTION OF CIVIL SOCIETY, AND THAT RELIGION IS WHOLLY EXEMPT
FROM ITS COGNIZANCE.  TRUE IT IS, THAT NO OTHER RULE EXISTS, BY WHICH
ANY QUESTION WHICH MAY DIVIDE A SOCIETY, CAN BE ULTIMATELY DETERMINED,
BUT THE WILL OF THE MAJORITY; BUT IT IS ALSO TRUE, THAT THE MAJORITY
MAY TRESPASS ON THE RIGHTS OF THE MINORITY. 

"2.  BECAUSE IF RELIGION BE EXEMPT FROM THE AUTHORITY OF THE SOCIETY
AT LARGE, STILL LESS CAN IT BE SUBJECT TO THAT OF THE LEGISLATIVE
BODY.  THE LATTER ARE BUT THE CREATURES AND VICEGERENTS OF THE FORMER. 
THEIR JURISDICTION IS BOTH DERIVATIVE AND LIMITED:  IT IS LIMITED WITH
REGARD TO THE CO-ORDINATE DEPARTMENTS, MORE NECESSARILY IS IT LIMITED
WITH REGARD TO THE CONSTITUENTS.  THE PRESERVATION OF A FREE GOVERNMENT
REQUIRES NOT MERELY, THAT THE METES AND BOUNDS WHICH SEPARATE EACH
DEPARTMENT OF POWER MAY BE INVARIABLY MAINTAINED; BUT MORE ESPECIALLY,
THAT NEITHER OF THEM BE SUFFERED TO OVERLAP THE GREAT BARRIER WHICH
DEFENDS THE RIGHTS OF THE PEOPLE.  THE RULERS WHO ARE GUILTY OF SUCH AN
ENCROACHMENT, EXCEED THE COMMISSION FROM WHICH THEY DERIVE THEIR
AUTHORITY, AND ARE TYRANTS.  THE PEOPLE WHO SUBMIT TO IT ARE GOVERNED
BY LAWS MADE NEITHER BY THEMSELVES, NOR BY AN AUTHORITY DERIVED FROM
THEM, AND ARE SLAVES. 

"3.  BECAUSE, IT IS PROPER TO TAKE ALARM AT THE FIRST EXPERIMENT ON
OUR LIBERTIES.  WE HOLD THIS PRUDENT JEALOUSY TO BE THE FIRST DUTY OF
CITIZENS, AND ONE OF (THE) NOBLEST CHARACTERISTICS OF THE LATE
REVOLUTION.  THE FREEMEN OF AMERICA DID NOT WAIT TILL USURPED POWER HAD
STRENGTHENED ITSELF BY EXERCISE, AND ENTANGLED THE QUESTION IN
PRECEDENTS.  THEY SAW ALL THE CONSEQUENCES IN THE PRINCIPLE, AND THEY
AVOIDED THE CONSEQUENCES BY DENYING THE PRINCIPLE.  WE REVERE THIS
LESSON TOO MUCH, SOON TO FORGET IT.  WHO DOES NOT SEE THAT THE SAME
AUTHORITY WHICH CAN ESTABLISH CHRISTIANITY, IN EXCLUSION OF ALL OTHER
RELIGIONS, MAY ESTABLISH WITH THE SAME EASE ANY PARTICULAR SECT OF
CHRISTIANS, IN EXCLUSION OF ALL OTHER SECTS?  THAT THE SAME AUTHORITY
WHICH CAN FORCE A CITIZEN TO CONTRIBUTE THREE PENCE ONLY OF HIS
PROPERTY FOR THE SUPPORT OF ANY ONE ESTABLISHMENT, MAY FORCE HIM TO
CONFORRM TO ANY OTHER ESTABLISHMENT IN ALL CASES WHATSOEVER? 

"4.  BECAUSE, THE BILL VIOLATES THAT EQUALITY WHICH OUGHT TO BE THE
BASIS OF EVERY LAW, AND WHICH IS MORE INDISPENSIBLE, IN PROPORTION AS
THE VALIDITY OR EXPEDIENCY OF ANY LAW IS MORE LIABLE TO BE IMPEACHED. 
IF 'ALL MEN ARE BY NATURE EQUALLY FREE AND INDEPENDENT,' ALL MEN ARE TO
BE CONSIDERED AS ENTERING INTO SOCIETY ON EQUAL CONDITIONS; AS
RELINQUISHING NO MORE, AND THEREFORE RETAINING NO LESS, ONE THAN
ANOTHER, OF THEIR NATURAL RIGHTS.  ABOVE ALL ARE THEY TO BE CONSIDERED
AS RETAINING AN 'EQUAL TITLE TO THE FREE EXERCISE OF RELIGION ACCORDING
TO THE DICTATES OF CONSCIENCE.'  WHILST WE ASSERT FOR OURSELVES A
FREEDOM TO EMBRACE, TO PROFESS AND TO OBSERVE THE RELIGION WHICH WE
BELIEVE TO BE OF DIVINE ORIGIN, WE CANNOT DENY AN EQUAL FREEDOM TO
THOSE WHOSE MINDS HAVE NOT YET YIELDED TO THE EVIDENCE WHICH HAS
CONVINCED US.  IF THIS FREEDOM BE ABUSED, IT IS AN OFFENSE AGAINST GOD,
NOT AGAINST MAN:  TO GOD, THEREFORE, NOT TO MEN, MUST AN ACCOUNT OF IT
BE RENDERED.  AS THE BILL VIOLATES EQUALITY BY SUBJECTING SOME TO
PECULIAR BURDENS; SO IT VIOLATES THE SAME PRINCIPLE, BY GRANTING TO
OTHERS PECULIAR EXEMPTIONS.  ARE THE QUAKERS AND MENONISTS THE ONLY
UNWARANTABLE?  CAN THEIR PIETY ALONE BE INTRUSTED WITH THE CARE OF
PUBLIC WORSHIP?  OUGHT THEIR RELIGIONS TO BE ENDOWED ABOVE ALL OTHERS,
WITH EXTRAORDINARY PRIVILEGES, BY WHICH PROSELYTES MAY BE ENTICED FROM
ALL OTHERS?  WE THINK TOO FAVORABLY OF THE JUSTICE AND GOOD SENSE OF
THESE DENOMINATIONS, TO BELIEVE THAT THEY EITHER COVET PRE-EMINENCIES
OVER THEIR FELLOW CITIZNES, OR THAT THEY WILL BE SEDUCED BY THEM, FROM
THE COMMON OPPOSITION TO THE MEASURE. 

"5.  BECAUSE THE BILL IMPLIES EITHER THAT THE CIVIL MAGISTRATE IS A
COMPETENT JUDGE OF RELIGIONS TRUTH; OR THAT HE MAY EMPLOY RELIGION AS
AN ENGINE OF CIVIL POLICY.  THE FIRST IS AN ARROGANT PRETENSION
FALSIFIED BY THE CONTRADICTORY OPINIONS OF RULERS IN ALL AGES, AND
THROUGHOUT THE WORLD:  THE SECOND AN UNHALLOWED PERVERSION OF THE MEANS
OF SALVATION. 

"6.  BECAUSE THE ESTABLISHMENT PROPOSED BY THE BILL IS NOT REQUISITE
FOR THE SUPPORT OF THE CHRISTIAN RELIGION.  TO SAY THAT IT IS, IS A
CONTRADICTION TO THE CHRISTIAN RELIGION ITSELF; FOR EVERY PAGE OF IT
DISAVOWS A DEPENDENCE ON THE POWERS OF THIS WORLD:  IT IS A
CONTRADICTION TO FACT; FOR IT IS KNOWN THAT THIS RELIGION BOTH EXISTED
AND FLOURISHED, NOT ONLY WITHOUT THE SUPPORT OF HUMAN LAWS, BUT IN
SPITE OF EVERY OPPOSITION FROM THEM; AND NOT ONLY DURING THE PERIOD OF
MIRACULOUS AID, BUT LONG AFTER IT HAD BEEN LEFT TO ITS OWN EVIDENCE,
AND THE ORDINARY CARE OF PROVIDENCE:  NAY, IT IS A CONTRADICTION IN
TERMS; FOR A RELIGION NOT INVENTED BY HUMAN POLICY, MUST HAVE PRE
EXISTED AND BEEN SUPPORTED, BEFORE IT WAS ESTABLISHED BY HUMAN POLICY. 
IT IS MOREOVER TO WEAKEN IN THOSE WHO PROFESS THIS RELIGION A PIOUS
CONFIDENCE IN ITS INNATE EXCELLENCE, AND THE PATRONAGE OF ITS AUTHOR;
AND TO FOSTER IN THOSE WHO STILL REJECT IT, A SUSPICION THAT ITS
FRIENDS ARE TOO CONSCIOUS OF ITS FALLACIES, TO TRUST IT TO ITS OWN
MERITS. 

"7.  BECAUSE EXPERIENCE WITNESSETH THAT ECCLESIASTICAL
ESTABLISHMENTS, INSTEAD OF MAINTAINING THE PURITY AND EFFICACY OF
RELIGION, HAVE HAD A CONTRARY OPERATION.  DURING ALMOST FIFTEEN
CENTURIES, HAS THE LEGAL ESTABLISHMENT OF CHRISTIANITY BEEN ON TRIAL. 
WHAT HAVE BEEN ITS FRUITS?  MORE OR LESS IN ALL PLACES, PRIDE AND
INDOLENCE IN THE CLERGY; IGNORANCE AND SERVILITY IN THE LAITY; IN BOTH,
SUPERSTITION, BIGOTRY AND PERSECUTION.  ENQUIRE OF THE TEACHERS OF
CHRISTIANITY FOR THE AGES IN WHICH IT APPEARED IN ITS GREATEST LUSTRE;
THOSE OF EVERY SECT, POINT TO THE AGES PRIOR TO ITS INCORPORATION WITH
CIVIL POLICY.  PROPOSE A RESTORATION OF THIS PRIMITIVE STATE IN WHICH
ITS TEACHERS DEPENDED ON THE VOLUNTARY REWARDS OF THEIR FLOCKS; MANY OF
THEM PREDICT ITS DOWNFALL.  ON WHICH SIDE OUGHT THEIR TESTIMONY TO HAVE
GREATEST WEIGHT, WHEN FOR OR WHEN AGAINST THEIR INTEREST? 

"8.  BECAUSE THE ESTABLISHMENT IN QUESTION IS NOT NECESSARY FOR THE
SUPPORT OF CIVIL GOVERNMENT.  IF IT BE URGED AS NECESSARY FOR THE
SUPPORT OF CIVIL GOVERNMENT ONLY AS IT IS A MEANS OF SUPPORTING
RELIGION, AND IT BE NOT NECESSARY FOR THE LATTER PURPOSE, IT CANNOT BE
NECESSARY FOR THE FORMER.  IF RELIGION BE NOT WITHIN (THE) COGNIZANCE
OF CIVIL GOVERNMENT, HOW CAN ITS LEGAL ESTABLISHMENT BE SAID TO BE
NECESSARY TO CIVIL GOVERNMENT?  WHAT INFLUENCE IN FACT HAVE
ECCLESIASTICAL ESTABLISHMENTS HAD ON CIVIL SOCIETY?  IN SOME INSTANCES
THEY HAVE BEEN SEEN TO ERECT A SPIRITUAL TYRANNY ON THE RUINS OF CIVIL
AUTHORITY; IN MANY INSTANCES THEY HAVE BEEN SEEN UPHOLDING THE THRONES
OF POLITICAL TYRANNY; IN NO INSTANCE HAVE THEY BEEN SEEN THE GUARDIANS
OF THE LIBERTIES OF THE PEOPLE.  RULERS WHO WISHED TO SUBVERT THE
PUBLIC LIBERTY, MAY HAVE FOUND AN ESTABLISHED CLERGY CONVENIENT
AUXILIARIES.  A JUST GOVERNMENT, INSTITUTED TO SECURE & PERPETUATE IT,
NEEDS THEM NOT.  SUCH A GOVERNMENT WILL BE BEST SUPPORTED BY PROTECTING
EVERY CITIZEN IN THE ENJOYMENT OF HIS RELIGION WITH THE SAME EQUAL HAND
WHICH PROTECTS HIS PERSON AND HIS PROPERTY; BY NEITHER INVADING THE
EQUAL RIGHTS OF ANY SECT, NOR SUFFERING ANY SECT TO INVADE THOSE OF
ANOTHER. 

"9.  BECAUSE THE PROPOSED ESTABLISHMENT IS A DEPARTURE FROM THAT
GENEROUS POLICY, WHICH, OFFERING AN ASYLUM TO THE PERSECUTED AND
OPPRESSED OF EVERY NATION AND RELIGION, PROMISED A LUSTRE TO OUR
COUNTRY, AND AN ACCESSION TO THE NUMBER OF ITS CITIZENS.  WHAT A
MELANCHOLY MARK IS THE BILL OF SUDDEN DEGENERACY?  INSTEAD OF HOLDING
FORTH AN ASYLUM TO THE PERSECUTED, IT IS ITSELF A SIGNAL OF
PERSECUTION.  IT DEGRADES FROM THE EQUAL RANK OF CITIZENS ALL THOSE
WHOSE OPINIONS IN RELIGION DO NOT BEND TO THOSE OF THE LEGISLATIVE
AUTHORITY.  DISTANT AS IT MAY BE, IN ITS PRESENT FORM, FROM THE
INQUISITION IT DIFFERS FROM IT ONLY IN DEGREE.  THE ONE IS THE FIRST
STEP, THE OTHER THE LAST IN THE CAREER OF INTOLERANCE.  THE MAGNANIMOUS
SUFFERER UNDER THIS CRUEL SCOURGE IN FOREIGN REGIONS, MUST VIEW THE
BILL AS A BEACON ON OUR COAST, WARNING HIM TO SEEK SOME OTHER HAVEN,
WHERE LIBERTY AND PHILANTHROPY IN THEIR DUE EXTENT MAY OFFER A MORE
CERTAIN REPOSE FROM HIS TROUBLES. 

"10.  BECAUSE, IT WILL HAVE A LIKE TENDENCY TO BANISH OUR CITIZENS. 
THE ALLUREMENTS PRESENTED BY OTHER SITUATIONS ARE EVERY DAY THINNING
THEIR NUMBER.  TO SUPERADD A FRESH MOTIVE TO EMIGRATION, BY REVOKING
THE LIBERTY WHICH THEY NOW ENJOY, WOULD BE THE SAME SPECIES OF FOLLY
WHICH HAS DISHONOURED AND DEPOPULATED FLOURISHING KINGDOMS. 

"11.  BECAUSE, IT WILL DESTROY THAT MODERATION AND HARMONY WHICH THE
FORBEARANCE OF OUR LAWS TO INTERMEDDLE WITH RELIGION, HAS PRODUCED
AMONGST ITS SEVERAL SECTS.  TOREENTS OF BLOOD HAVE BEEN SPLIT IN THE
OLD WORLD, BY VAIN ATTEMPTS OF THE SECULAR ARM TO EXTINGUISH RELIGIOUS
DISCORD, BY PROSCRIBING ALL DIFFERENCE IN RELIGIOUS OPINIONS.  TIME HAS
AT LENGTH REVEALED THE TRUE REMEDY.  EVERY RELAXATION OF NARROW AND
RIGOROUS POLICY, WHEREVER IT HAS BEEN TRIED, HAS BEEN FOUND TO ASSAUGE
THE DISEASE.  THE AMERICAN THEATRE HAS EXHIBITED PROOFS, THAT EQUAL AND
COMPLEAT LIBERTY, IF IT DOES NOT WHOLLY ERADICATE IT, SUFFICIENTLY
DESTROYS ITS MALIGNANT INFLUENCE ON THE HEALTH AND PROSPERITY OF THE
STATE.  IF WITH THE SALUTARY EFFECTS OF THIS SYSTEM UNDER OUR OWN EYES,
WE BEGIN TO CONTRACT THE BONDS OF RELIGIOUS FREEDOM, WE KNOW NO NAME
THAT WILL TOO SEVERELY REPROACH OUR FOLLY.  AT LEAST LET WARNING BE
TAKEN AT THE FIRST FRUITS OF THE THREATENED INNOVATION.  THE VERY
APPEARANCE OF THE BILL HAS TRANSFORMED THAT 'CHRISTIAN FORBEARANCE,
LOVE AND CHARITY,' WHICH OF LATE MUTUALLY PREVAILED, INTO ANIMOSITIES
AND JEALOUSIES, WHICH MAY NOT SOON BE APPEASED.  WHAT MISCHIEFS MAY NOT
BE DREADED SHOULD THIS ENEMY TO THE PUBLIC QUIET BE ARMED WITH THE
FORCE OF A LAW? 

"12.  BECAUSE, THE POLICY OF THE BILL IS ADVERSE TO THE DIFFUSION OF
THE LIGHT OF CHRISTIANITY.  THE FIRST WISH OF THOSE WHO ENJOY THIS
PRECIOUS GIFT, OUGHT TO BE THAT IT MAY BE IMPARTED TO THE WHOLE RACE OF
MANKIND.  COMPARE THE NUMBER OF THOSE WHO HAVE AS YET RECEIVED IT WITH
THE NUMBER STILL REMAINING UNDER THE DOMINION OF FALSE RELIGIONS; AND
HOW SMALL IS THE FORMER.  DOES THE POLICY OF THE BILL TEND TO LESSEN
THE DISPROPORTION?  NO; IT AT ONCE DISCOURAGES THOSE WHO ARE STRANGERS
TO THE LIGHT OF (REVELATION) FROM COMING INTO THE REGION OF IT; AND
COUNTENANCES, BY EXAMPLE THE NATIONS WHO CONTINUE IN DARKNESS, IN
SHUTTING OUT THOSE WHO MIGHT CONVEY IT TO THEM.  INSTEAD OF LEVELLING
AS FAR AS POSSIBLE, EVERY OBSTACLE TO THE VICTORIOUS PROGRESS OF TRUTH,
THE BILL WITH AN IGNOBLE AND UNCHRISTIAN TIMIDITY WOULD CIRCUMSCRIBE
IT, WITH A WALL OF DEFENSE, AGAINST THE ENCROACHMENTS OF ERROR. 

"13.  BECAUSE ATTEMPTS TO ENFORCE BY LEGAL SANCTIONS, ACTS OBNOXIOUS
TO SO GREAT A PROPORTION OF CITIZENS, TEND TO ENERVATE THE LAWS IN
GENERAL, AND TO SLACKEN THE BANDS OF SOCIETY.  IF IT BE DIFFICULT TO
EXECUTE ANY LAW WHICH IS NOT GENERALLY DEEMED NECESSARY OR SALUTARY,
WHAT MUST BE THE CASE WHERE IT IS DEEMED NECESSARY OR SALUTARY, WHAT
MUST BE THE CASE WHERE IT IS DEEMED INVALID AND DANGEROUS?  AND WHAT
MAY BE THE EFFECT OF SO STRIKING AN EXAMPLE OF IMPOTENCY IN THE
GOVERNMENT, ON ITS GENERAL AUTHORITY.     "14.  BECAUSE A MEASURE OF
SUCH SINGULAR MAGNITUDE AND DELICACY OUGHT NOT TO BE IMPOSED, WITHOUT
THE CLEAREST EVIDENCE THAT IT IS CALLED FOR BY A MAJORITY OF CITIZENS"
AND NO SATISFACTORY METHOD IS YET PROPOSED BY WHICH THE VOICE OF THE
MAJORITY IN THIS CASE MAY BE DETERMINED, OR ITS INFLUENCE SECURED. 
'THE PEOPLE OF THE RESPECTIVE COUNTIES ARE INDEED REQUESTED TO SIGNIFY
THEIR OPINION RESPECTING THE ADOPTION OF THE BILL TO THE NEXT SESSION
OF ASSEMBLY.'  BUT THE REPRESENTATION MUST BE MADE EQUAL, BEFORE THE
VOICE EITHER OF THE REPRESENTATIVES OR OF THE COUNTIES, WILL BE THAT OF
THE PEOPLE.  OUR HOPE IS THAT NEITHER OF THE FORMER WILL, AFTER DUE
CONSIDERATION, ESPOUSE THE DANGEROUS PRINCIPLE OF THE BILL.  SHOULD THE
EVENT DISAPPOINT US, IT WILL STILL LEAVE US IN FULL CONFIDENCE, THAT A
FAIR APPEAL TO THE LATTER WILL REVERSE THE SENTENCE AGAINST OUR
LIBERTIES. 

"15.  BECAUSE, FINALLY, 'THE EQUAL RIGHT OF EVERY CITIZEN TO THE FREE
EXERCISE OF HIS RELIGION ACCORDING TO THE DICTATES OF CONSCIENCE'  IS
HELD BY THE SAME TENURE WITH ALL OUR OTHER RIGHTS.  IF WE RECUR TO ITS
ORIGIN, IT IS EQUALLY THE GIFT OF NATURE; IF WE WEIGHT ITS IMPORTANCE,
IT CANNOT BE LESS DEAR TO US; IF WE CONSULT THE DECLARATION OF THOSE
RIGHTS WHICH PERTAIN TO THE GOOD PEOPLE OF VIRGINIA, AS THE 'BASIS AND
FOUNDATION OF GOVERNMENT,' IT IS ENUMERATED WITH EQUAL SOLEMNITY, OR
RATHER STUDIED EMPHASIS.  EITHER THEN, WE MUST SAY, THAT THE WILL OF
THE LEGISLATURE IS THE ONLY MEASURE OF THEIR AUTHORITY, THEY MAY SWEEP
AWAY ALL OUR FUNDAMENTAL RIGHTS; OR, THAT THEY ARE BOUND TO LEAVE THIS
PARTICULAR RIGHT UNTOUCHED AND SACRED:  EITHER WE MUST SAY, THAT THEY
MAY CONTROUL THE FREEDOM OF THE PRESS, MAY ABOLISH THE TRIAL BY JURY,
MAY SWALLOW UP THE EXECUTIVE AND JUDICIARY POWERS OF THE STATE; NAY
THAT THEY MAY DESPOIL US OF OUR VERY RIGHT TO SUFFRAGE, AND ERECT
THEMSELVES INTO AN INDEPENDENT AND HEREDITARY ASSEMBLY:  OR WE MUST
SAY, THAT THEY HAVE NO AUTHORITY TO ENACT INTO LAW THE BILL UNDER
CONSIDERATION.  WE THE SUBSCRIBERS SAY, THAT THE GENERAL ASSEMBLY OF
THIS COMMONWEALTH HAVE NO SUCH AUTHORITY:  AND THAT NO EFFORT MAY BE
OMITTED ON OUR PART AGAINST SO DANGEROUS AN USURPATION, WE OPPOSE TO
IT, THIS REMONSTRANCE; EARNESTLY PRAYING, AS WE ARE IN DUTY BOUND, THAT
THE SUPREME LAWGIVER OF THE UNIVERSE, BY ILLUMINATING THOSE TO WHOM IT
IS ADDRESSED, MAY ON THE ONE HAND, TURN THEIR COUNCILS FROM EVERY ACT
WHICH WOULD AFFRONT HIS HOLY PREROGATIVE, OR VIOLATE THE TRUST
COMMITTED TO THEM:  AND ON THE OTHER, GUIDE THEM INTO EVERY MEASURE
WHICH MAY BE WORTHY OF HIS (BLESSING, MAY REDOUND TO THEIR OWN PRAISE,
AND MAY ESTABLISH MORE FIRMLY THE LIBERTIES, THE PROSPERITY, AND THE
HAPPINESS OF THE COMMONWEALTH." 

/1/  N.Y. REAL PROP.  TAX LAW SEC. 420, SUBD. 1 (SUPP. 1969-1970). 

/2/  IN THE ORAL ARGUMENT IN MCCOLLUM V. BOARD OF EDUCATION, 333
U.S. 203, THE FOLLOWING COLLOGUY TOOK PLACE BETWEEN MR. JUSTICE BLACK
AND COUNSEL JOHN L. FRANKLIN: 

MR. JUSTICE BLACK.  DO I UNDERSTAND YOU TO TAKE THE POSITION THAT IF
THE STATE OF ILLINOIS WANTED TO CONTRIBUTE FIVE MILLION DOLLARS A YEAR
TO RELIGION THEY COULD DO SO, SO LONG AS THEY PROVIDED THE SAME TO
EVERY FAITH? 

"MR. FRANKLIN.  YES, AND THE STATE OF ILLINOIS DOES CONTRIBUTE FIVE
MILLION DOLLARS ANNUALLY TO RELIGIOUS FAITHS, EQUALLY, AND MORE THAN
FIVE MILLION DOLLARS, AND HAS DURING ITS ENTIRE HISTORY. 

"MR. JUSTICE BLACK.  HOW DOES IT DO IT? 

"MR. FRANKLIN.  BY TAX EXEMPTIONS SPECIFICALLY GRANTED TO RELIGIOUS
ORGANIZATIONS. 

"MR. JUSTICE BLACK.  YOUR POSITION IS THAT THEY COULD GRANT FIVE
MILLION DOLLARS A YEAR TO RELIGION, IF THEY WANTED TO, OUT OF THE
TAXPAYER'S MONEY, SO LONG AS THEY TREATED ALL FAITHS THE SAME? 

"MR. FRANKLIN.  YES, YOUR HONOR.  THAT IS OUR INTERPRETATION OF THE
MEANING OF THE FIRST CLAUSE OF THE FIRST AMENDMENT."  J. O'NEILL,
RELIGION AND EDUCATION UNDER THE CONSTITUTION 225 (1949). 

/3/  SEE APPENDIX I TO THIS DISSENT, POST, P. 716. 

/4/  SEE APPENDIX II TO THIS DISSENT, POST, P. 719. 

/5/  SEE H. ECKENRODE, SEPARATION OF CHURCH AND STATE IN VIRGINIA,
C. V (1910). 

/6/  1 ANNALS OF CONG. 434, 729-731. 

/7/  N. 1, SUPRA. 

/8/  THE BROOKINGS INSTITUTION, REPORT ON A SURVEY OF ADMINISTRATION
IN IOWA:  THE REVENUE SYSTEM 33 (1933). 

/9/  THIS INEQUALITY, SOME ARGUE, IS PRONOUNCED WHEN IT COMES TO AID
TO PAROCHIAL SCHOOLS NOW RUN MAINLY BY THE CATHOLIC CHURCH.  SEE G.
COGDELL, WHAT PRICE PAROCHIAID?  68-70 (1970). 

/10/  H.R. MISC. DOC. NO. 210, PT. 1, 53D CONG., 2D SESS., 489-490. 

/11/  ID., AT 490. 

/12/  FLEET, MADISON'S "DETATCHED MEMORANDA," 3 WM. & MARY Q. (3D
SER.)  534, 551, 555 (1946). 

/13/  SEE ZOLLMANN, TAX EXEMPTIONS OF AMERICAN CHURCH PROPERTY, 14
MICH.L.REV.  646, 655-656 (1916). 

THE NEW YORK SUPREME COURT IN IN RE MAYOR OF NEW YORK, 11 JOHNS. 
77, 81, SAID: 

"AS THE CHURCH PROPERTY IS NOT, NOR IS LIKELY SOON TO BE, EITHER
APPROPRIATED TO RENTING OR EXPOSED TO SALE, BUT IS DEVOTED EXCLUSIVELY
TO RELIGIOUS PURPOSES, THE BENEFIT RESULTING TO IT, BY THE IMPROVEMENT
OF NASSAU-STREET, MUST BE SMALL IN COMPARISON WITH THAT OF OTHER
PROPERTY, AND IT, THEREFORE, OUGHT NOT TO CONTRIBUTE IN THE LIKE
PROPORTION.  IT MAY BE CONSIDERED, POSSIBLY, AS BENEFITED, BY RENDERING
THE ACCESS TO THE CHURCHES MORE CONVENIENT, AND THE PLACES MORE
PLEASANT AND SALUBRIOUS, BY THE FREER CIRCULATION OF THE AIR.  THIS MAY
HAVE SOME INFLUENCE ON THE PEW RENTS, AND THE GROUND MAY BECOME
PERMANENTLY MORE VALUABLE.  THESE, HOWEVER, APPEAR TO BE SMALL AND
REMOTE BENEFITS TO PROPERTY SO CIRCUMSTANCED; AND TO CHARGE THE
CHURCHES EQUALLY WITH ADJOINING PRIVATE PROPERTY IS UNREASONABLE AND
EXTRAVAGANT; AND ON THIS POINT THE REPORT OUGHT TO BE SENT BACK TO THE
COMMISSIONERS FOR REVISAL AND CORRECTION." 

/14/  U.S. NEWS & WORLD REPORT, MAY 4, 1970, P. 34. 

/15/  THESE TOTALS INCLUDE ALL TYPES OF FEDERAL AID-- PHYSICAL
PLANTS, DORMITORY CONSTRUCTION, LABORATORIES, LIBRARIES, LUNCH
PROGRAMS, FELLOWSHIPS AND SCHOLARSHIPS, ETC. 

OF THE TOTAL FEDERAL OUTLAYS FOR EDUCATION ONLY TWO-FIFTHS ARE FOR
PROGRAMS ADMINISTERED BY THE OFFICE OF EDUCATION, OTHER PARTS OF THE
DEPARTMENT OF HEW ACCOUNT FOR ONE-FIFTH.  THE REST OF THE OUTLAYS ARE
DISTRIBUTED AMONG 24 FEDERAL DEPARTMENTS AND AGENCIES, OF WHICH THE
LARGEST SHARES ARE ACCOUNTED FOR BY THE DEPARTMENT OF DEFENSE, THE
VETERANS ADMINISTRATION, THE NATIONAL SCIENCE FOUNDATION, AND THE
OFFICE OF ECONOMIC OPPORTUNITY.  U.S. BUREAU OF THE BUDGET, SPECIAL
ANALYSIS, FEDERAL EDUCATION PROGRAM, 1971 BUDGET, SPECIAL ANALYSIS I,
PT. 2, P. 115 (FEB. 1970). 

/16/  FLEET, SUPRA, N. 12, AT 557-558. 

/17/  IN 1875 PRESIDENT GRANT IN HIS STATE OF THE UNION MESSAGE
REFERRED TO THE VAST AMOUNTS OF UNTAXED CHURCH PROPERTY: 

"IN 1850 I BELIEVE, THE CHURCH PROPERTY OF THE UNITED STATES WHICH
PAID NO TAX, MUNICIPAL OR STATE, AMOUNTED TO ABOUT $83,000,000.  IN
1860 THE AMOUNT HAD DOUBLED; IN 1875 IT IS ABOUT $1,000,000,000.  BY
1900, WITHOUT CHECK, IT IS SAFE TO SAY THIS PROPERTY WILL REACH A SUM
EXCEEDING $3,000,000,000.  SO VAST A SUM, RECEIVING ALL THE PROTECTION
AND BENEFITS OF GOVERNMENT WITHOUT BEARING ITS PROPORTION OF THE
BURDENS AND EXPENSES OF THE SAME, WILL NOT BE LOOKED UPON ACQUIESCENTLY
BY THOSE WHO HAVE TO PAY THE TAXES.  IN A GROWING COUNTRY, WHERE REAL
ESTATE ENHANCES SO RAPIDLY WITH TIME, AS IN THE UNITED STATES, THERE IS
SCARCELY A LIMIT TO THE WEALTH THAT MAY BE ACQUIRED BY CORPORATIONS,
RELIGIOUS OR OTHERWISE, IF ALLOWED TO RETAIN REAL ESTATE WITHOUT
TAXATION.  THE CONTEMPLATION OF SO VAST A PROPERTY AS HERE ALLUDED TO,
WITHOUT TAXATION, MAY LEAD TO SEQUESTRATION, WITHOUT CONSTITUTIONAL
AUTHORITY AND THROUGH BLOOD. 

"I WOULD SUGGEST THE TAXATION OF ALL PROPERTY EQUALLY, WHETHER
CHURCH OR CORPORATION, EXEMPTING ONLY THE LAST RESTING PLACE OF THE
DEAD AND POSSIBLY, WITH PROPER RESTRICTIONS, CHURCH EDIFICES."  9
MESSAGES AND PAPERS OF THE PRESIDENTS 4288-4289 (1897). 

/18/  FOOTNOTES OMITTED. 

EDWARD J. ENNIS ARGUED THE CAUSE FOR APPELLANT. 

J. LEE RANKIN ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WERE STANLEY BUCHSBAUM AND EDITH I. SPIVACK. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY OSMOND K.
FRAENKEL, MARVIN M. KARPATKIN, NORMAN DORSEN, MR. ENNIS, AND MELVIN L.
WULF FOR THE AMERICAN CIVIL LIBERTIES UNION, AND BY LOLA BOSWELL FOR
MADALYN MURRAY O'HAIR AND JAMES H. ANDERSON, JR., FOR THE SOCIETY OF
SEPARATIONISTS, INC. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT
ATTORNEY GENERAL, AND JULIUS GREENFIELD, ASSISTANT ATTORNEY GENERAL,
FOR THE STATE OF NEW YORK, JOINED BY THE ATTORNEYS GENERAL FOR THEIR
RESPECTIVE STATES AS FOLLOWS:  MACDONALD GALLION OF ALABAMA, GARY K.
NELSON OF ARIZONA, JOE PURCELL OF ARKANSAS, DUKE W. DUNBAR OF COLORADO,
ROBERT K. KILLIAN OF CONNECTICUT, DAVID P. BUCKSON OF DELAWARE, EARL
FAIRCLOTH OF FLORIDA, BERTRAM T. KANBARA OF HAWAII, WILLIAM J. SCOTT OF
ILLINOIS, THEODORE L. SENDAK OF INDIANA, RICHARD C. TURNER OF IOWA,
KENT FRIZZELL OF KANSAS, JOHN BL BRECKINRIDGE OF KENTUCKY, JACK P. F.
GREMILLION OF LOUISIANA, JAMES S. ERWIN OF MAINE, FRANCIS B. BURCH OF
MARYLAND, FRANK J. KELLEY OF MICHIGAN, A. F. SUMMER OF MISSISSIPPI,
JOHN C. DANFORTH OF MISSOURI, ROBERT L. WOODAHL OF MONTANA, CLARENCE A.
H. MEYER OF NEBRASKA, ARTHUR J. SILLS OF NEW JERSEY, JAMES A. MALONEY
OF NEW MEXICO, ROBERT B. MORGAN OF NORTH CAROLINA, HELGI JOHANNESON OF
NORTH DAKOTA, PAUL W. BROWN OF OHIO, WILLIAM C. SENNETT OF
PENNSYLVANIA, HERBERT F. DESIMONE OF RHODE ISLAND, GORDON MYDLAND OF
SOUTH DAKOTA, GEORGE F. MCCANLESS OF TENNESSEE, CRAWFORD C. MARTIN OF
TEXAS, JAMES M. JEFFORDS OF VERMONT, ROBERT Y. BUTTON OF VIRGINIA,
SLADE GORTON OF WASHINGTON, ROBERT W. WARREN OF WISCONSIN, AND JAMES E.
BARRETT OF WYOMING, AND BY SNATIAGO C. SOLER-FAVALE, ATTORNEY GENERAL
OF PUERTO RICO; BY FRANKLIN C. SALISBURY FOR PROTESTANTS AND OTHER
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; BY NOEL THOMPSON
FOR THE PARISH HALL SCHOOL, INC.; BY CHARLES H. TUTTLE AND THOMAS A.
SHAW, JR., FOR THE NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE
UNITED STATES; BY ANTHONY L. FLETCHER, STEPHEN B. CLARKSON, JOHN MILES
EVANS, GEORGE F. MACKEY, WILLIAM G. RHINES, WILLIAM SHERMAN, AND H.
RICHARD SCHUMACHER FOR THE EPISCOPAL DIOCESE OF NEW YORK ET AL.; BY
WILLIAM R. CONSEDINE, GEORGE E. REED, ALFRED L. SCANLAN, ARTHUR E.
SUTHERLAND, AND CHARLES M. WHELAN FOR THE UNITED STATES CATHOLIC
CONFERENCE; BY MARVIN BRAITERMAN FOR THE SYNAGOGUE COUNCIL OF AMERICA
ET AL.; BY NATHAN LEWIN AND JULIUS BERMAN FOR THE NATIONAL JEWISH
COMMISSION ON LAW AND PUBLIC AFFAIRS; BY JOSEPH B. FRIEDMAN FOR THE
BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS; AND BY ROY L. COLE FOR THE
BAPTIST GENERAL CONVENTION OF TEXAS. 
..END :






ROWAN V. POST OFFICE DEPT., 397 U.S. 728 


       ROWAN, DBA AMERICAN BOOK SERVICE, ET AL. V. UNITED STATES

           POST OFFICE DEPARTMENT ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL

           DISTRICT OF CALIFORNIA

        NO. 399.  ARGUED JANUARY 22, 1970-- DECIDED MAY 4, 1970 


APPELLANTS, WHO ARE IN THE MAIL-ORDER BUSINESS, BROUGHT SUIT TO
ENJOIN THE OPERATION OF 39 U.S.C.4009, CHALLENGING ITS
CONSTITUTIONALITY.  THAT SECTION PROVIDES THAT A PERSON WHO HAS
RECEIVED BY MAIL "A PANDERING ADVERTISEMENT WHICH OFFERS FOR SALE
MATTER WHICH THE ADDRESSEE IN HIS SOLE DISCRETION BELIEVES TO BE
EROTICALLY AROUSING OR SEXUALLY PROVOCATIVE," MAY REQUEST THE
POSTMASTER GENERAL TO ISSUE AN ORDER "DIRECTING THE SENDER AND HIS
AGENTS OR ASSIGNS TO REFRAIN FROM FURTHER MAILINGS TO THE NAMED
ADDRESSEE."  SUCH ORDER WOULD ALSO REQUIRE THE SENDER TO DELETE THE
ADDRESSEE'S NAME FROM HIS MAILING LISTS AND WOULD PROHIBIT HIM FROM
TRADING IN LISTS FROM WHICH THE DELETION HAS NOT BEEN MADE.  IF THE
POSTMASTER GENERAL BELIEVES THAT HIS ORDER HAS BEEN VIOLATED, HE MAY
NOTIFY THE SENDER OF HIS BELIEF AND THE REASONS THEREFOR, AND MUST
GRANT HIM AN OPPORTUNITY TO RESPOND AND TO HAVE AN ADMINISTRATIVE
HEARING ON WHETHER A VIOLATION HAS OCCURRED.  IF THE POSTMASTER GENERAL
THEREAFTER DETERMINES THAT THE ORDER HAS BEEN VIOLATED, HE MAY REQUEST
THE ATTORNEY GENERAL TO SEEK AN ORDER FROM A DISTRICT COURT DIRECTING
COMPLIANCE WITH THE PROHIBITORY ORDER.  A THREE-JUDGE COURT FOUND THAT
SEC. 4009 WAS CONSTITUTIONAL WHEN INTERPRETED TO PROHIBIT
ADVERTISEMENTS SIMILAR TO THOSE INITIALLY MAILED TO THE ADDRESSEE. 
HELD: 

1.  THE STATUTE ALLOWS THE ADDRESSEE UNREVIEWABLE DISCRETION TO
DECIDE WHETHER HE WISHES TO RECEIVE ANY FURTHER MATERIAL FROM A
PARTICULAR SENDER.  PP. 731-735. 

2.  A VENDOR DOES NOT HAVE A CONSTITUTIONAL RIGHT TO SEND UNWANTED
MATERIAL INTO SOMEONE'S HOME, AND A MAILER'S RIGHT TO COMMUNICATE MUST
STOP AT THE MAILBOX OF AN UNRECEPTIVE ADDRESSEE.  PP. 735-738. 

3.  THE STATUTE COMPORTS WITH THE DUE PROCESS CLAUSE AS IT PROVIDES
FOR AN ADMINISTRATIVE HEARING IF THE SENDER VIOLATES THE POSTMASTER
GENERAL'S PROHIBITORY ORDER, AND A JUDICIAL HEARING PRIOR TO ISSUANCE
OF ANY COMPLIANCE ORDER BY A DISTRICT COURT.  PP. 738-739. 

4.  THE STATUTE DOES NOT VIOLATE DUE PROCESS BY REQUIRING THAT THE
SENDER REMOVE THE COMPLAINING ADDRESSEE'S NAME FROM HIS MAILING LISTS,
NOR IS THE STATUTE UNCONSTITUTIONALLY VAGUE, AS THE SENDER KNOWS
PRECISELY WHAT HE MUST DO WHEN HE RECEIVES A PROHIBITORY ORDER.  P.
740.  300 F.SUPP.  1036, AFFIRMED 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

APPELLANTS CHALLENGE THE CONSTITUTIONALITY OF TITLE III OF THE
POSTAL REVENUE AND FEDERAL SALARY ACT OF 1967, 81 STAT.645, 39
U.S.C.4009 (1964 ED., SUPP. IV), UNDER WHICH A PERSON MAY REQUIRE THAT
A MAILER REMOVE HIS NAME FROM ITS MAILING LISTS AND STOP ALL FUTURE
MAILINGS TO THE HOUSEHOLDER.  THE APPELLANTS ARE PUBLISHERS,
DISTRIBUTORS, OWNERS, AND OPERATORS OF MAIL ORDER HOUSES, MAILING LIST
BROKERS, AND OWNERS AND OPERATORS OF MAIL SERVICE ORGANIZATIONS WHOSE
BUSINESS ACTIVITIES ARE AFFECTED BY THE CHALLENGED STATUTE. 

A BRIEF DESCRIPTION OF THE STATUTORY FRAMEWORK WILL FACILITATE OUR
ANALYSIS OF THE QUESTIONS RAISED IN THIS APPEAL.  SECTION 4009 IS
ENTITLED "PROHIBITION OF PANDERING ADVERTISEMENTS IN THE MAILS."  IT
PROVIDES A PROCEDURE WHEREBY ANY HOUSEHOLDER MAY INSULATE HIMSELF FROM
ADVERTISEMENTS THAT OFFER FOR SALE "MATTER WHICH THE ADDRESSEE IN HIS
SOLE DISCRETION BELIEVES TO BE EROTICALLY AROUSING OR SEXUALLY
PROVOCATIVE."  39 U.S.C. 4009(A) (1964 ED., SUPP. IV).  /1/ 

SUBSECTION (B) MANDATES THE POSTMASTER GENERAL, UPON RECEIPT OF A
NOTICE FROM THE ADDRESSEE SPECIFYING THAT HE HAS RECEIVED
ADVERTISEMENTS FOUND BY HIM TO BE WITHIN THE STATUTORY CATEGORY, TO
ISSUE ON THE ADDRESSEE'S REQUEST AN ORDER DIRECTING THE SENDER AND HIS
AGENTS OR ASSIGNS TO REFRAIN FROM FURTHER MAILINGS TO THE NAMED
ADDRESSEE.  ADDITIONALLY, SUBSECTION (C) REQUIRES THE POSTMASTER
GENERAL TO ORDER THE AFFECTED SENDER TO DELETE THE NAME OF THE
DESIGNATED ADDRESSEE FROM ALL MAILING LISTS OWNED OR CONTROLLED BY THE
SENDER AND PROHIBITS THE SALE, RENTAL, EXCHANGE, OR OTHER TRANSACTIONS
INVOLVING MAILING LISTS BEARING THE NAME OF THE DESIGNATED ADDRESSEE. 

IF THE POSTMASTER GENERAL HAS REASON TO BELIEVE THAT AN ORDER ISSUED
UNDER THIS SECTION HAS BEEN VIOLATED, SUBSECTION (D) AUTHORIZES HIM TO
NOTIFY THE SENDER BY REGISTERED OR CERTIFIED MAIL OF HIS BELIEF AND THE
REASONS THEREFOR, AND GRANT HIM AN OPPORTUNITY TO RESPOND AND HAVE A
HEARING ON WHETHER A VIOLATION HAS OCCURRED. 

IF THE POSTMASTER GENERAL THEREAFTER DETERMINES THAT THE ORDER HAS
BEEN OR IS BEING VIOLATED, HE IS AUTHORIZED TO REQUEST THE ATTORNEY
GENERAL TO SEEK AN ORDER FROM A UNITED STATES DISTRICT COURT DIRECTING
COMPLIANCE WITH THE PROHIBITIONORY ORDER.  SUBSECTION (E) GRANTS TO THE
DISTRICT COURT JURISDICTION TO ISSUE A COMPLIANCE ORDER UPON
APPLICATION OF THE ATTORNEY GENERAL. 

APPELLANTS INITIATED AN ACTION IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA UPON A COMPLAINT AND PETITION
FOR DECLARATORY RELIEF ON THE GROUND THAT 39 U.S.C. 4009 (1964 ED.,
SUPP. IV) IS UNCONSTITUTIONAL.  THEY ALLEGED THAT THEY HAD RECEIVED
NUMEROUS PROHIBITORY ORDERS PURSUANT TO THE PROVISIONS OF THE STATUTE. 
APPELLANTS CONTENDED THAT THE SECTION VIOLATES THEIR RIGHTS OF FREE
SPEECH AND DUE PROCESS GUARANTEED BY THE FIRST AND FIFTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION.  ADDITIONALLY, APPELLANTS ARGUED THAT
THE SECTION IS UNCONSTITUTIONALLY VAGUE, WITHOUT STANDARDS, AND
AMBIGUOUS. 

A THREE-JUDGE COURT WAS CONVENED PURSUANT TO 28 U.S.C.2284 AND IT
DETERMINED THAT THE SECTION WAS CONSTITUTIONAL WHEN INTERPRETED TO
PROHIBIT ADVERTISEMENTS SIMILAR TO THOSE INITIALLY MAILED TO THE
ADDRESSEE.  /2/  300 F.SUPP.  1036. 

THE DISTRICT COURT CONSTRUED SUBSECTIONS (B) AND (C) TO PROHIBIT
"ADVERTISEMENTS SIMILAR" TO THOSE INITIALLY MAILED TO THE ADDRESSEE. 
FUTURE MAILINGS, IN THE VIEW OF THE DISTRICT COURT, "ARE TO BE MEASURED
BY THE OBJECTIONABLE MATERIAL OF SUCH FIRST MAILING."  300 F.SUPP.,AT
1041.  IN OUR VIEW CONGRESS DID NOT INTEND SO RESTRICTIVE A SCOPE TO
THOSE PROVISIONS. 

        I. BACKGROUND AND CONGRESSIONAL OBJECTIVES 

USE OF MAIL FACILITIES TO DISTRIBUTE UNSOLICITED ADVERTISEMENTS THAT
RECIPIENTS FOUND TO BE OFFENSIVE BECAUSE OF THEIR LEWD AND SALACIOUS
CHARACTER.  SUCH MAIL WAS FOUND TO BE PRESSED UPON MINORS AS WELL AS
ADULTS WHO DID NOT SEEK AND DID NOT WANT IT.  USE OF MAILING LISTS OF
YOUTH ORGANIZATIONS WAS PART OF THE MODE OF DOING BUSINESS.  AT THE
CONGRESSIONAL HEARINGS IT DEVELOPED THAT COMPLAINTS TO THE POSTMASTER
GENERAL HAD INCREASED FROM 50,000 TO 250,000 ANNUALLY.  THE LEGISLATIVE
HISTORY, INCLUDING TESTIMONY OF CHILD PSYCHOLOGY SPECIALISTS AND
PSYCHIATRISTS BEFORE THE HOUSE COMMITTEE ON THE POST OFFICE AND THE
CIVIL SERVICE, REFLECTED CONCERN OVER THE IMPACT OF THE MATERIALS ON
THE DEVELOPMENT OF CHILDREN.  A DECLARED OBJECTIVE OF CONGRESS WAS TO
PROTECT MINORS AND THE PRIVACY OF HOMES FROM SUCH MATERIAL AND TO PLACE
THE JUDGMENT OF WHAT CONSTITUTUES AN OFFENSIVE INVASION OF THOSE
INTERESTS IN THE HANDS OF THE ADDRESSEE. 

TO ACCOMPLISH THESE OBJECTIVES CONGRESS PROVIDED IN SUBSECTION (A)
THAT THE MAILER IS SUBJECT TO AN ORDER "TO REFRAIN FROM FURTHER
MAILINGS OF SUCH MATERIALS TO DESIGNATED ADDRESSES."  SUBSECTION (B)
STATES THAT THE POSTMASTER GENERAL SHALL DIRECT THE SENDER TO REFRAIN
FROM "FURTHER MAILINGS TO THE NAMED ADDRESSEES."  SUBSECTION (C) IN
DESCRIBING THE POSTMASTER'S ORDER STATES THAT IT SHALL "EXPRESSLY
PROHIBIT THE SENDER . . . FROM MAKING ANY FURTHER MAILINGS TO THE
DESIGNATED ADDRESSEES . . . . "  SUBSECTION (C) ALSO REQUIRES THE
SENDER TO DELETE THE ADDRESSEE'S NAME "FROM ALL MAILING LISTS" AND
PROHIBITS THE SALE, TRANSFER, AND EXCHANGE OF LISTS BEARING THE
ADDRESSEE'S NAME. 

THERE ARE THREE PLAUSIBLE CONSTRUCTIONS OF THE STATUTE, WITH RESPECT
TO THE SCOPE OF THE PROHIBITORY ORDER.  THE ORDER COULD PROHIBIT ALL
FUTURE MAILINGS TO THE ADDRESSEES, ALL FUTURE MAILINGS OF ADVERTISING
MATERIAL TO THE ADDRESSEES, OR ALL FUTURE MAILINGS OF SIMILAR
MATERIALS. 

THE SEEMING INTERNAL STATUTORY INCONSISTENCY IS UNDOUBTEDLY A
RESIDUE OF THE LANGUAGE OF THE SECTION AS IT WAS INITIALLY PROPOSED. 
THE SECTION AS ORIGINALLY REPORTED BY THE HOUSE COMMITTEE PROHIBITED
"FURTHER MAILINGS OF SUCH PANDERING ADVERTISEMENTS," SEC. 4009(A),
"FURTHER MAILINGS OF SUCH MATTER," SEC. 4009(B), AND "ANY FURTHER
MAILINGS OF PANDERING ADVERTISEMENTS," SEC. 4009(C).  H.R. REP. NO.
722, 90TH CONG., 1ST SESS., 125 (1967).  THE SECTION REQUIRED THE
POSTMASTER GENERAL TO MAKE A DETERMINATION WHETHER THE PARTICULAR PIECE
OF MAIL CAME WITHIN THE PROSCRIBED CLASS OF PANDERING ADVERTISEMENTS,
"AS THAT TERM IS USED IN THE GINZBURG CASE."  ID., AT 69. 

THE SECTION WAS SUBSEQUENTLY AMENDED BY THE HOUSE OF REPRESENTATIVES
TO ELIMINATE FROM THE POST OFFICE ANY CENSORSHIP FUNCTION.  CONGRESSMAN
WALDIE, WHO PROPOSED THE AMENDMENT, ENVISIONED A MINIMAL ROLE FOR THE
POST OFFICE.  THE AMENDMENT WAS INTENDED TO REMOVE "THE RIGHT OF THE
GOVERNMENT TO INVOLVE ITSELF IN ANY DETERMINATION OF THE CONTENT AND
NATURE OF THESE OBJECTIONABLE MATERIALS.  . . . "  113 CONG.REC.28660
(1967).  THE ONLY DETERMINATION LEFT FOR THE POSTMASTER GENERAL IS
WHETHER OR NOT THE MAILER HAS REMOVED THE ADDRESSEE'S NAME FROM THE
MAILING LIST.  STATEMENTS BY THE PROPONENTS OF THE LEGISLATION IN BOTH
THE HOUSE AND SENATE MANIFESTED AN INTENT TO PROHIBIT ALL FURTHER
MAILINGS FROM THE SENDER.  IN DESCRIBING THE EFFECT OF HIS PROPOSED
AMENDMENT CONGRESSMAN WALDIE STATED: 

"SO I HAVE SAID IN MY AMENDMENT THAT IF YOU RECEIVE LITERATURE IN
YOUR HOUSEHOLD THAT YOU CONSIDER OBJECTIONABLE . . . YOU CAN INFORM THE
POSTMASTER GENERAL TO HAVE YOUR NAME STRICKEN FROM THAT MAILER'S
MAILING LIST."  113 CONG.REC.28660.  THE SENATE COMMITTEE REPORT ON THE
BILL CONTAINED SIMILAR LANGUAGE: 

     "IF A PERSON RECEIVES AN ADVERTISEMENT WHICH . . . HE . . .

  BELIEVES TO BE EROTICALLY AROUSING . . . HE MAY NOTIFY THE

  POSTMASTER GENERAL OF HIS DETERMINATION.  THE POSTMASTER GENERAL

  IS THEN REQUIRED TO ISSUE AN ORDER TO THE SENDER DIRECTING HIM TO

REFRAIN FROM SENDING ANY FURTHER MAILINGS OF ANY KIND TO SUCH

  PERSON."  S. REP. NO. 801, 90TH CONG., 1ST SESS., 38. 

SENATOR MORONEY, A MAJOR PROPONENT OF THE LEGISLATION IN THE SENATE,
DESCRIBED THE BILL AS FOLLOWS: 

"WITH RESPECT TO THE TEST CONTAINED IN THE BILL, IF THE ADDRESSEE
DECLARED IT TO BE EROTICALLY AROUSING OR SEXUALLY PROVOCATIVE, THE
POSTMASTER GENERAL WOULD HAVE TO NOTIFY THE SENDER TO SEND NO MORE MAIL
TO THAT ADDRESS 9 9 9 9 "  113 CONG.REC.  34231 (1967).  /3/ 

THE LEGISLATIVE HISTORY OF SUBSECTION (A) THUS SUPPORTS AN
INTERPRETATION THAT PROHIBITS ALL FUTURE MAILINGS INDEPENDENT OF ANY
OBJECTIVE TEST.  THIS READING IS CONSISTENT WITH THE PROVISIONS OF
RELATED SUBSECTIONS IN THE SECTION.  SUBSECTION (C) PROVIDES THAT THE
POSTMASTER GENERAL "SHALL ALSO DIRECT THE SENDER AND HIS AGENTS OR
ASSIGNS TO DELETE IMMEDIATELY THE NAMES OF THE DESIGNATED ADDRESSEES
FROM ALL MAILING LISTS OWNED OR CONTROLLED BY THE SENDER AND HIS AGENTS
OR ASSIGNS FROM THE SALE, RENTAL, EXCHANGE, OR OTHER TRANSACTION
INVOLVING MAILING LISTS BEARING THE NAMES OF THE DESIGNATED
ADDRESSEES."  39 U.S.C. 4009(C) (1964 ED., SUPP. IV). 

IT WOULD BE ANOMALOUS TO READ THE STATUTE TO AFFECT ONLY SIMILAR
MATERIAL OR ADVERTISEMENTS AND YET REQUIRE THE POSTMASTER GENERAL TO
ORDER THE SENDER TO REMOVE THE ADDRESSEE'S NAME FROM ALL MAILING LISTS
IN HIS ACTUAL OR CONSTRUCTIVE POSSESSION.  THE SECTION WAS INTENDED TO
ALLOW THE ADDRESSEE COMPLETE AND UNFETTERED DISCRETION IN ELECTING
WHETHER OR NOT HE DESIRED TO RECEIVE FURTHER MATERIAL FROM A PATRICULAR
SENDER.  SEE N. 6, INFRA.  THE IMPACT OF THIS ASPECT OF THE STATUTE IS
ON THE MAILER, NOT THE MAIL.  THE INTERPRETATION OF THE STATUTE THAT
MOST COMPLETELY EFFECTUATES THAT INTENT IS ONE THAT PROHIBITS ANY
FURTHER MAILINGS.  LIMITING THE PROHIBITORY ORDER TO SIMILAR MATERIALS
OR ADVERTISEMENTS IS OPEN TO AT LEAST TWO CRITICISMS:  (A) IT WOULD
EXPOSE THE HOUSEHOLDER TO FURTHER BURDENS OF SCRUTINIZING THE MAIL FOR
OBJECTIONABLE MATERIAL AND POSSIBLE HARASSMENT, AND (B) IT WOULD
INTERPOSE THE POSTMASTER GENERAL BETWEEN THE SENDER AND THE ADDRESSEE
AND, AT THE LEAST, CREATE THE APPEARANCE IF NOT THE SUBSTANCE OF
GOVERNMENTAL CENSORSHIP.  /4/  IT IS DIFFICULT TO SEE HOW THE
POSTMASTER GENERAL COULD DECIDE WHETHER THE MATERIALS WERE "SIMILAR" OR
POSSESSIING TOUTING OR PANDERING CHARACTERISTICS WITHOUT AN EVALUATION
SUSPICIOUSLY LIKE CENSORSHIP.  ADDITIONALLY, SUCH AN INTERPRETATION
WOULD BE INCOMPATIBLE WITH THE UNEQUIVOCAL LANGUAGE IN SUBSECTION (C). 

        II.  FIRST AMENDMENT CONTENTIONS 

THE ESSENCE OF APPELLANTS' ARGUMENT IS THAT THE STATUTE VIOLATES
THEIR CONSTITUTIONAL RIGHT TO COMMUNICATE.  ONE SENTENCE IN APPELLANTS'
BRIEF PERHAPS CHARACTERIZES THEIR ENTIRE POSITION: 

     "THE FREEDOM TO COMMUNICATE ORALLY AND BY THE WRITTEN WORD
AND,

  INDEED, IN EVERY MANNER WHATSOEVER IS IMPERATIVE TO A FREE AND

  SANE SOCIETY."  BRIEF FOR APPELLANTS 15. 

WITHOUT A DOUBT THE PUBLIC POSTAL SYSTEM IS AN INDISPENSABLE ADJUNCT OF
EVERY CIVILIZED SOCIETY AND COMMUNICATION IS IMPERATIVE TO A HEALTHY
SOCIAL ORDER.  BUT THE RIGHT OF EVERY PERSON "TO BE LET ALONE" MUST BE
PLACED IN THE SCALES WITH THE RIGHT OF OTHERS TO COMMUNICATE. 

IN TODAY'S COMPLEX SOCIETY WE ARE INESCAPABLY CAPTIVE AUDIENCES FOR
MANY PURPOSES, BUT A SUFFICIENT MEASURE OF INDIVIDUAL AUTONOMY MUST
SURVIVE TO PERMIT EVERY HOUSEHOLDER TO EXERCISE CONTROL OVER UNWATNED
MAIL.  TO MAKE THE HOUSEHOLDER THE EXCLUSIVE AND FINAL JUDGE OF WHAT
WILL CROSS HIS THRESHOLD UNDOUBTEDLY HAS THE EFFECT OF IMPEDING THE
FLOW OF IDEAS, INFORMATION, AND ARGUMENTS THAT, IDEALLY, HE SHOULD
RECEIVE AND CONSIDER.  TODAY'S MERCHANDISING METHODS, THE PLETHORA OF
MASS MAILINGS SUBSIDIZED BY LOW POSTAL RATES, AND THE GROWTH OF THE
SALE OF LARGE MAILING LISTS AS AN INDUSTRY IN ITSELF HAVE CHANGED THE
MAILMAN FROM A CARRIER OF PRIMARILY PRIVATE COMMUNICATIONS, AS HE WAS
IN A MORE LEISURELY DAY, AND HAVE MADE HIM AN ADJUNCT OF THE MASS
MAILER WHO SENDS UNSOLICITED AND OFTEN UNWANTED MAIL INTO EVERY HOME. 
IT PLACES NO STRAIN ON THE DOCTRINE OF JUDICIAL NOTICE TO OBSERVE THAT
WHETHER MEASURED BY PIECES OR POUNDS, EVERYMAN'S MAIL TODAY IS MADE UP
OVERWHELMINGLY OF MATERIAL HE DID NOT SEEK FROM PERSONS HE DOES NOT
KNOW.  AND ALL TOO OFTEN IT IS MATTER HE FINDS OFFENSIVE. 

IN MARTIN V. STRUTHERS, 319 U.S. 141 (1943), MR. JUSTICE BLACK, FOR
THE COURT, WHILE SUPPORTING THE "FREEDOM TO DISTRIBUTE INFORMATION TO
EVERY CITIZEN," ID., AT 146, ACKNOWLEDGED A LIMITATION IN TERMS OF
LEAVING "WITH THE HOMEOWNER HIMSELF" THE POWER TO DECIDE "WHETHER
DISTRIBUTORS OF LITERATURE MAY LAWFULLY CALL AT A HOME."  ID., AT 148. 
WEIGHING THE HIGHLY IMPORTANT RIGHT TO COMMUNICATE, BUT WITHOUT TRYING
TO DETERMINE WHERE IT FITS INTO CONSTITUTIONAL IMPERATIVES, AGAINST THE
VERY BASIC RIGHT TO BE FREE FROM SIGHTS, SOUNDS, AND TANGIBLE MATTER WE
DO NOT WANT, IT SEEMS TO US THAT A MAILER'S RIGHT TO COMMUNICATE MUST
STOP AT THE MAILBOX OF AN UNRECEPTIVE ADDRESSEE. 

THE COURT HAS TRADITIONALLY RESPECTED THE RIGHT OF A HOUSEHOLDER TO
BAR, BY ORDER OR NOTICE, SOLICITORS, HAWKERS, AND PEDDLERS FROM HIS
PROPERTY.  SEE MARTIN V. STRUTHERS, SUPRA; CF. HALL V. COMMONWEALTH,
188 VA. 72, 49 S.E.2D 369, APPEAL DISMISSED, 355 U.S. 875 (1948).  IN
THIS CASE THE MAILER'S RIGHT TO COMMUNICATE IS CIRCUMSCRIBED ONLY BY AN
AFFIRMATIVE ACT OF THE ADDRESSEE GIVING NOTICE THAT HE WISHER NO
FURTHER MAILINGS FROM THAT MAILER.     TO HOLD LESS WOULD TEND TO
LICENSE A FORM OF TRESPASS AND WOULD MAKE HARDLY MORE SENSE THAN TO SAY
THAT A RADIO OR TELEVISION VIEWER MAY NOT TWIST THE DIAL TO CUT OFF AN
OFFENSIVE OR BORING COMMUNICATION AND THUS BAR ITS ENTERING HIS HOME. 
NOTHING IN THE CONSTITUTION COMPELS US TO LISTEN TO OR VIEW ANY
UNWANTED COMMUNICATION, WHATEVER ITS MERIT; WE SEE NO BASIS FOR
ACCORDING THE PRINTED WORD OR PICTURES A DIFFERENT OR MORE PREFERRED
STATUS BECAUSE THEY ARE SENT BY MAIL.  THE ANCIENT CONCEPT THAT "A
MAN'S HOME IS HIS CASTLE" INTO WHICH "NOT EVEN THE KING MAY ENTER" HAS
LOST NONE OF ITS VITALITY, AND NONE OF THE RECOGNIZED EXCEPTIONS
INCLUDES ANY RIGHT TO COMMUNICATE OFFENSIVELY WITH ANOTHER.  SEE CAMARA
V. MUNICIPAL COURT, 387 U.S. 523 (1967).     BOTH THE ABSOLUTENESS OF
THE CITIZEN'S RIGHT UNDER SEC. 4009 AND ITS FINALITY ARE ESSENTIAL;
WHAT MAY NOT BE PROVOCATIVE TO ONE PERSON MAY WELL BE TO ANOTHER.  IN
OPERATIVE EFFECT THE POWER OF THE HOUSEHOLDER UNDER THE STATUTE IS
UNLIMITED; HE MAY PROHIBIT THE MAILING OF A DRY GOODS CATALOG BECAUSE
HE OBJECTS TO THE CONTENTS-- OR INDEED THE TEXT OF THE LANGUAGE TOUTING
THE MERCHANDISE.  CONGRESS PROVIDED THIS SWEEPING POWER NOT ONLY TO
PROTECT PRIVACY BUT TO AVOID POSSIBLE CONSTITUTIONAL QUESTIONS THAT
MIGHT ARISE FROM VESTING THE POWER TO MAKE ANY DISCRETIONARY EVALUATION
OF THE MATERIAL IN A GOVERNMENTAL OFFICIAL. 

IN EFFECT, CONGRESS HAS ERECTED A WALL-- OR MORE ACCURATELY PERMITS
A CITIZEN TO ERECT A WALL-- THAT NO ADVERTISER MAY PENETRATE WITHOUT
HIS ACQUIESCENCE.  THE CONTINUING OPERATIVE EFFECT OF A MAILING BAN
ONCE IMPOSED PRESENTS NO CONSTITUTIONAL OBSTACLES; THE CITIZEN CANNOT
BE PUT TO THE BURDEN OF DETERMINING ON REPEATED OCCASIONS WHETHER THE
OFFENDING MAILER HAS ALTERED ITS MATERIAL SO AS TO MAKE IT ACCEPTABLE. 
NOR SHOULD THE HOUSEHOLDER HAVE TO RISK THAT OFFENSIVE MATERIAL COME
INTO THE HANDS OF HIS CHILDREN BEFORE IT CAN BE STOPPED. 

WE THEREFORE CATEGORICALLY REJECT THE ARGUMENT THAT A VENDOR HAS A
RIGHT UNDER THE CONSTITUTION OR OTHERWISE TO SEND UNWANTED MATERIAL
INTO THE HOME OF ANOTHER.  IF THIS PROHIBITION OPERATES TO IMPEDE THE
FLOW OF EVEN VALID IDEAS, THE ANSWER IS THAT NO ONE HAS A RIGHT TO
PRESS EVEN "GOOD" IDEAS ON AN UNWILLING RECIPIENT.  THAT WE ARE OFTEN
"CAPTIVES" OUTSIDE THE SANCTUARY OF THE HOME AND SUBJECT TO
OBJECTIONABLE SPEECH AND OTHER SOUND DOES NOT MEAN WE MUST BE CAPTIVES
EVERYWHERE.  SEE PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451
(1952).  THE ASSERTED RIGHT OF A MAILER, WE REPEAT, STOPS AT THE OUTER
BOUNDARY OF EVERY PERSON'S DOMAIN. 

THE STATUTORY SCHEME AT ISSUE ACCORDS TO THE SENDER AN "OPPORTUNITY
TO BE HEARD UPON SUCH NOTICE AND PROCEEDINGS AS ARE ADEQUATE TO
SAFEGUARD THE RIGHT FOR WHICH THE CONSTITUTIONAL PROTECTION IS
INVOKED."  ANDERSON NAT. BANK V. LUCKETT, 321 U.S. 233, 246 (1944).  IT
THUS COMPORTS WITH THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  THE
STATUTORY SCHEME ACCOMPLISHES THIS BY PROVIDING THAT THE POSTMASTER
GENERAL SHALL ISSUE A PROHIBITORY ORDER TO TO THE SENDER ON THE REQUEST
OF THE COMPLAINING ADDRESSEE.  ONLY IF THE SENDER VIOLATES THE TERMS OF
THE ORDER IS THE POSTMASTER GENERAL AUTHORIZED TO SERVE A COMPLAINT ON
THE SENDER, WHO IS THEN ALLOWED 15 DAYS TO RESPOND.  THE SENDER CAN
THEN SECURE AN ADMINISTRATIVE HEARING.  /5/  THE SENDER MAY QUESTION
WHETHER THE INITIAL MATERIAL MAILED TO THE ADDRESSEE WAS AN
ADVERTISEMENT AND WHETHER HE SENT ANY SUBSEQUENT MAILINGS.  IF THE
POSTMASTER GENERAL THEREAFTER DETERMINES THAT THE PROHIBITORY ORDER HAS
BEEN VIOLATED, HE IS AUTHORIZED TO REQUEST THE ATTORNEY GENERAL TO MAKE
APPLICATION IN A UNITED STATES DISTRICT COURT FOR A COMPLIANCE ORDER;
/6/  A SECOND HEARING IS REQUIRED IF AN ORDER IS TO BE ENTERED. 

THE ONLY ADMINISTRATIVE ACTION NOT PRECEDED BY A FULL HEARING IS THE
INITIAL ISSUANCE OF THE PROHIBITORY ORDER.  SINCE THE SENDER RISKS NO
IMMEDIATE SANCTION BY FAILING TO COMPLY WITH THAT ORDER-- IT IS ONLY A
PREDICATE FOR LATER STEPS-- IT CANNOT BE SAID THAT THIS ASPECT OF THE
PROCEDURE DENIES DUE PROCESS.  IT IS SUFFICIENT THAT ALL AVAILABLE
DEFNESES, SUCH AS PROOF THAT NO MAIL WAS SENT, MAY BE PRESENTED TO A
COMPETENT TRIBUNAL BEFORE A CONTEMPT FINDING CAN BE MADE.  SEE NICKEY
V. MISSISSIPPE, 292 U.S. 393, 396 (1934). 

THE APPELLANTS ALSO CONTEND THAT THE REQUIREMENT THAT THE SENDER
REMOVE THE ADDRESSEE'S NAME FROM ALL MAILING LISTS IN HIS POSSESSION
VIOLATES THE FIFTH AMENDMENT BECAUSE IT CONSTITUTUES A TAKING WITHOUT
DUE PROCESS OF LAW.  THE APPELLANTS ARE NOT PROHIBITED FROM USING,
SELLING, OR EXCHANGING THEIR MAILING LISTS; THEY ARE SIMPLY REQUIRED TO
DELETE THE NAMES OF THE COMPLAINING ADDRESSEES FROM THE LISTS AND CEASE
ALL MAILINGS TO THOSE PERSONS. 

APPELLANTS NEXT CONTEND THAT COMPLIANCE WITH THE STATUTE IS
CONFISCATORY BECAUSE THE COSTS ATTENDING REMOVAL OF THE NAMES ARE
PROHIBITIVE.  WE AGREE WITH THE CONCLUSION OF THE DISTRICT COURT THAT
THE "BURDEN DOES NOT AMOUNT TO A VIOLATION OF DUE PROCESS GUARANTEED BY
THE FIFTH AMENDMENT OF THE CONSTITUTION.  PARTICULARLY WHEN IN THE
CONTEXT PRESENTLY BEFORE THIS COURT IT IS BEING APPLIED TO COMMERCIAL
ENTERPRISES."  300 F.SUPP.,AT 1041.  SEE CALIFORNIA STATE AUTO INS.
BUREAU V. MALONEY, 341 U.S. 105 (1951). 

THERE IS NO MERIT TO THE APPELLANTS' ALLEGATIONS THAT THE STATUTE IS
UNCONSTITUTIONALLY VAGUE.  A STATUTE IT FATALLY VAGUE ONLY WHEN IT
EXPOSES A POTENTIAL ACTOR TO SOME RISK OR DETRIMENT WITHOUT GIVING HIM
FAIR WARNING OF THE NATURE OF THE PROSCRIBED CONDUCT.  UNITED STATES V.
CARDIFF, 344 U.S. 174, 176 (1952).  HERE THE APPELLANTS KNOW PRECISELY
WHAT THEY MUST DO ON RECEIPT OF A PROHIBITORY ORDER.  THE COMPLAINANTS'
NAMES MUST BE REMOVED FROM THE SENDER'S MAILING LISTS AND HE MUST
REFRAIN FROM FUTURE MAILINGS TO THE NAMED ADDRESSEES.  THE SENDER IS
EXPOSED TO A CONTEMPT SANCTION ONLY IF HE CONTINUES TO MAIL TO A
PARTICULAR ADDRESSEE AFTER ADMINISTRATIVE AND JUDICIAL PROCEEDINGS. 
APPELLANTS RUN NO SUBSTANTIAL RISK OF MISCALCULATION. 

FOR THE REASONS STATED, THE JUDGMENT APPEALED FROM IS AFFIRMED. 

              IT IS SO ORDERED. 

/1/  SUBSECTION (G) PROVIDES THAT UPON THE ADDRESSEE'S REQUEST THE
ORDER SHALL INCLUDE THE NAMES OF THE ADDRESSEE'S MINOR CHILDREN WHO
RESIDE WITH HIM AND WHO HAVE NOT ATTAINED THEIR NINETEENTH BIRTHDAY. 

/2/  JUDGE HUFSTEDLER, CONCURRING SPECIALLY BUT WITHOUT DISSENT,
WOULD REQUIRE THE DISTRICT COURT PRIOR TO ISSUING A COMPLIANCE ORDER TO
DETERMINE DE NOVO WHETHER THE SENDER IS A PERSON WHO HAS MAILED OR HAS
CAUSED TO BE MAILED ANY PANDERING ADVERTISEMENTS. 

/3/  SENATOR HRUSKA SPOKE SIMILARLY:  "TITLE III WOULD ALLOW THE
RECIPIENT OF OBSCENE MAIL TO RETURN IT TO THE POSTMASTER GENERAL WITH A
REQUEST THAT THE POSTMASTER GENERAL NOTIFY THE SENDER TO STOP MAILINGS
TO THE ADDRESSEE . . . . "  113 CONG. REC. 34232 (1967). 

/4/  SUBSECTION (D) VESTS THE POSTMASTER GENERAL WITH THE DUTY TO
DETERMINE WHETHER THE SENDER HAS VIOLATED THE ORDER.  THIS
DETERMINATION WAS INTENDED TO BE PRIMARILY A MINISTERIAL ONE INVOLVING
AN ADJUDICATION WHETHER THE INITIAL MATERIAL WAS AN ADVERTISEMENT AND
WHETHER THE SENDER MAILED MATERIALS TO THE ADDRESSEE MORE THAN 30 DAYS
AFTER THE RECEIPT OF THE PROHIBITORY ORDER.  AN INTERPRETATION WHICH
REQUIRES THE POSTMASTER GENERAL TO DETERMINE WHETHER THE SUBSEQUENT
MATERIAL WAS PANDERING AND/OR SIMILAR WOULD TEN TO PLACE HIM "ASTRIDE
THE FLOW OF MAIL . . . . "  LAMONT V. POSTMASTER GENERAL, 381 U.S. 301,
306 (1965). 

/5/  ALTHOUGH SUBSECTION (H) SPECIFICALLY EXCLUDES THE PRE-COMPLAINT
HEARING FROM THE PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, 5
U.S.C.554 ET SEQ. (1964 ED., SUPP. IV), THE POST OFFICE DEPARTMENT HAS
PROMULGATED REGULATIONS SETTING FORTH PROCEDURES GOVERNING THE
DEPARTMENTAL ADMINISTRATIVE HEARINGS.  39 CFR PT. 916. 

/6/  THE FUNCTION OF THE DISTRICT COURT IS SIMILAR TO THAT OF THE
POSTMASTER GENERAL.  IT IS TO DETERMINE WHETHER THE INITIAL MAILING
INCLUDED ADVERTISING MATERIAL AND WHETHER THERE WAS A MAILING BY THE
SENDER TO THE ADDRESSEE MORE THAN 30 DAYS AFTER RECEIPT OF THE ORDER. 
WE REJECT THE SUGGESTIONS THAT THE SECTION SHOULD BE READ TO REQUIRE
THE DISTRICT JUDGE TO MAKE A DETERMINATION OF THE ADDRESSEE'S GOOD
FAITH, OR TO CONDUCT AN INDEPENDENT ADJUDICATION OF THE PANDERING
NATURE OF THE MATERIAL.  THE STATUTE WAS INTENDED TO ENTRUST
UNREVIEWABLE DISCRETION TO THE ADDRESSEE TO DETERMINE WHETHER OR NOT
THE ADVERTISEMENT WAS "EROTICALLY AROUSING OR SEXUALLY PROVOCATIVE." 
"THE SOLE DETERMINATION AS TO WHETHER THE LITERATURE YOU RECEIVE IS
OBJECTIONABLE OR NOT IS WITHIN YOUR DISCRETION AND YOU ARE NOT SECOND
GUESSED ON THAT DISCRETION."  113 CONG. REC. 28660 (1967) (REMARKS OF
CONGRESSMAN WALDIE). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
CONCURRING. 

I JOIN THE COURT'S OPINION BUT ADD A FEW WORDS.  I AGREE THAT 39
U.S.C. 4009 (1964 ED., SUPP. IV) IS CONSTITUTIONAL INSOFAR AS IT
PERMITS AN ADDRESSEE TO REQUIRE A MAILER TO REMOVE HIS NAME FROM ITS
MAILING LISTS AND TO STOP ALL FUTURE MAILINGS TO THE ADDRESSEE.  AS THE
COURT NOTES, HOWEVER, SUBSECTION (G) OF SEC. 4009 ALSO ALLOWS AN
ADDRESSEE TO REQUEST THE POSTMASTER GENERAL TO INCLUDE IN ANY
PROHIBITORY ORDER "THE NAMES OF ANY OF HIS MINOR CHILDREN WHO HAVE NOT
ATTAINED THEIR NINETEENTH BIRTHDAY, AND WHO RESIDE WITH THE
ADDRESSEE."  IN LIGHT OF THE BROAD INTERPRETATION THAT THE COURT
ASSIGNS TO SEC. 4009, AND SEE ANTE, AT 738, THE POSSIBILITY EXISTS THAT
PARENTS COULD PREVENT THEIR CHILDREN, EVEN IF THEY ARE 18 YEARS OLD,
FROM RECEIVING POLITICAL, RELIGIOUS, OR OTHER MATERIALS THAT THE
PARENTS FIND OFFENSIVE.  IN MY VIEW, A STATUTE SO CONSTRUED AND APPLIED
IS NOT WITHOUT CONSTITUTIONAL DIFFICULTIES.  CF. TINKER V. DES MOINES
SCHOOL DIST., 393 U.S. 503 (1969); GINSBERG V. NEW YORK, 390 U.S. 629
(1968).  IN THIS CASE, HOWEVER, THEREIS NO PARTICULARIZED ATTACK UPON
THE CONSTITUTIONALITY OF SUBSECTION (G), NOR, INDEED, IS THERE ANY
INDICATION ON THIS RECORD THAT UNDER SEC. 4009(G) CHILDREN IN THIER
LATE TEENS HAVE BEEN UNWILLINGLY DEPRIVED OF THE OPPORTUNITY TO RECEIVE
MATERIALS.  IN THESE CIRCUMSTANCES, I UNDERSTAND THE COURT TO LEAVE
OPEN THE QUESTION OF THE RIGHT OF OLDER CHILDREN TO RECEIVE MATERIALS
THROUGH THE MAIL WITHOUT GOVERNMENTAL INTERFERENCE AND ALSO THE MORE
SPECIFIC QUESTION WHETHER SEC. 4009(G) MAY CONSTITUTIONALLY BE APPLIED
WITH RESPECT TO ALL MATERIALS AND TO ALL CHILDREN UNDER 19. 

JOSEPH TABACK ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANTS. 

ASSISTANT ATTORNEY GENERAL RUCKELSHAUS ARGUED THE CAUSE FOR
APPELLEES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
PETER L. STRAUSS, ROBERT V. ZENER, AND DONALD L. HOROWITZ. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ,
FIRST ASSISTANT ATTORNEY GENERAL, AND LLOYD G. MILLIKEN FILED A BRIEF
FOR THE ATTORNEY GENERAL OF NEW YORK AS AMICUS CURIAE URGING
AFFIRMANCE.  DAVID E. MCGIFFERT FILED A BRIEF FOR THE DIRECT MAIL
ADVERTISING ASSOCIATION, INC., AS AMICUS CURIAE. 
..END :














BRADY V. UNITED STATES, 397 U.S. 742 


       BRADY V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT

        NO. 270.  ARGUED NOVEMBER 18, 1969-- DECIDED MAY 4, 1970 


PETITIONER WAS INDICTED IN 1959 FOR KIDNAPING AND NOT LIBERATING THE
VICTIM UNHARMED IN VIOLATION OF 18 U.S.C. 1201(A), WHICH IMPOSED A
MAXIMUM PENALTY OF DEATH IF THE JURY'S VERDICT SO RECOMMENDED.  UPON
LEARNING THAT HIS CODEFENDANT, WHO HAD CONFESSED, WOULD PLEAD GUILTY
AND TESTIFY AGAINST HIM, PETITIONER CHANGED HIS PLEA FROM NOT GUILTY TO
GUILTY.  THE TRIAL JUDGE ACCEPTED THE PLEA AFTER TWICE QUESTIONING
PETITIONER (WHO WAS REPRESENTED THROUGHOUT BY COMPETENT COUNSEL) AS TO
THE VOLUNTARINESS OF HIS PLEA, AND IMPOSED SENTENCE.  IN 1967,
PETITIONER SOUGHT POST-CONVICTION RELIEF, IN PART ON THE GROUND THAT
SEC. 1201(A) OPERATED TO COERCE HIS PLEA.  THE DISTRICT COURT, AFTER
HEARING, DENIED RELIEF, CONCLUDING THAT PETITIONER'S PLEA WAS VOLUNTARY
AND HAD BEEN INDUCED, NOT BY THAT STATUTE, BUT BY THE DEVELOPMENT
CONCERNING HIS CONFEDERATE, THE COURT OF APPEALS AFFIRMED.  PETITIONER
CLAIMS THAT UNITED STATES V. JACKSON, 390 U.S. 570(1968), REQUIRES
REVERSAL OF THAT HOLDING.  HELD:  ON THE RECORD IN THIS CASE THERE IS
NO BASIS FOR DISTURBING THE JUDGMENT OF THE COURTS BELOW THAT
PETITIONER'S GUILTY PLEA WAS VOLUNTARY.  PP. 745-758. 

(A) THOUGH UNITED STATES V. JACKSON, SUPRA, PROHIBITS IMPOSITION OF
THE DEATH PENALTY UNDER SEC. 1201(A), IT DOES NOT HOLD THAT ALL GUILTY
PLEAS ENCOURAGED BY THE FEAR OF POSSIBLE DEATH ARE INVOLUNTARY, NOR
DOES IT INVALIDATE SUCH PLEAS WHETHER INVOLUNTARY OR NOT.  PP. 745
748. 

(B) A PLEA OF GUILTY IS NOT INVALID MERELY BECAUSE ENTERED TO AVOID
THE POSSIBILITY OF THE DEATH PENALTY, AND HERE PETITIONER'S PLEA OF
GUILTY MET THE STANDARD OF VOLUNTARINESS AS IT WAS MADE "BY ONE FULLY
AWARE OF THE DIRECT CONSEQUENCES" OF THAT PLEA.  PP. 749-755. 

(C) PETITIONER'S PLEA, MADE AFTER ADVICE BY COMPETENT COUNSEL, WAS
INTELLIGENTLY MADE, AND THE FACT THAT PETITIONER DID NOT ANTICIPATE
UNITED STATES V. JACKSON, SUPRA DOES NOT IMPUGN THE TRUTH OR
RELIABILITY OF THAT PLEA.  PP. 756-758. 

404 F.2D 601, AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN 1959, PETITIONER WAS CHARGED WITH KIDNAPING IN VIOLATION OF 18
U.S.C. 1201(A).  /1/  SINCE THE INDICTMENT CHARGED THAT THE VICTIM OF
THE KIDNAPING WAS NOT LIBERATED UNHARMED, PETITIONER FACED A MAXIMUM
PENALTY OF DEATH IF THE VERDICT OF THE JURY SHOULD SO RECOMMEND. 
PETITIONER, REPRESENTED BY COMPETENT COUNSEL THROUGHOUT, FIRST ELECTED
TO PLEAD NOT GUILTY.  APPARENTLY BECAUSE THE TRIAL JUDGE WAS UNWILLING
TO TRY THE CASE WITHOUT A JURY, PETITIONER MADE NO SERIOUS ATTEMPT TO
REDUCE THE POSSIBILITY OF A DEATH PENALTY BY WAIVING A JURY TRIAL. 
UPON LEARNING THAT HIS CODEFENDANT, WHO HAD CONFESSED TO THE
AUTHORITIES, WOULD PLEAD GUILTY AND BE AVAILABLE TO TESTIFY AGAINST
HIM, PETITIONER CHANGED HIS PLEA TO GUILTY.  HIS PLEA WAS ACCEPTED
AFTER THE TRIAL JUDGE TWICE QUESTIONED HIM AS TO THE VOLUNTARINESS OF
HIS PLEA.  /2/  PETITIONER WAS SENTENCED TO 50 YEARS' IMPRISONMENT,
LATER REDUCED TO 30. 

IN 1967, PETITIONER SOUGHT RELIEF UNDER 28 U.S.C. 2255, CLAIMING
THAT HIS PLEA OF NOT GUILTY WAS NOT VOLUNTARILY GIVEN BECAUSE SEC.
1201(A) OPERATED TO COERCE HIS PLEA, BECAUSE HIS COUNSEL EXERTED
IMPERMISSIBLE PRESSURE UPON HIM, AND BECAUSE HIS PLEA WAS INDUCED BY
REPRESENTATIONS WITH RESPECT TO REDUCTION OF SENTENCE AND CLEMENCY.  IT
WAS ALSO ALLEGED THAT THE TRIAL JUDGE HAD NOT FULLY COMPLIED WITH RULE
11 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  /3/ 

AFTER A HEARING, THE DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
DENIED RELIEF.  ACCORDING TO THE DISTRICT COURT'S FINDINGS,
PETITIONER'S COUNSEL DID NOT PUT IMPERMISSIBLE PRESSURE ON PETITIONER
TO PLEAD GUILTY AND NO REPRESENTATIONS WERE MADE WITH RESPECT TO A
REDUCED SENTENCE OR CLEMENCY.  THE COURT HELD THAT SEC. 1201(A) WAS
CONSTITUTIONAL AND FOUND THAT PETITIONER DECIDED TO PLEAD GUILTY WHEN
HE LEARNED THAT HIS CODEFENDANT WAS GOING TO PLEAD GUILTY:  PETITIONER
PLEADED GUILTY "BY REASON OF OTHER MATTERS AND NOT BY REASON OF THE
STATUTE" OR BECAUSE OF ANY ACTS OF THE TRIAL JUDGE.  THE COURT
CONCLUDED THAT "THE PLEA WAS VOLUNTARILY AND KNOWINGLY MADE." 

THE COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED, DETERMINING
THAT THE DISTRICT COURT'S FINDINGS WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE AND SPECIFICALLY APPROVING THE FINDING THAT PETITIONER'S PLEA
OF GUILTY WAS VOLUNTARY.  404 F.2D 601 (1968).  WE GRANTED CERTIORARI,
395 U.S. 976 (1969), TO CONSIDER THE CLAIM THAT THE COURT OF APPEALS
WAS IN ERROR IN NOT REACHING A CONTRARY RESULT ON THE AUTHORITY OF THIS
COURT'S DECISION IN UNITED STATES V. JACKSON, 390 U.S. 570 (1968).  WE
AFFIRM. 

        I 

IN UNITED STATES V. JACKSON, SUPRA, THE DEFENDANTS WERE INDICTED
UNDER SEC. 1201(A).  THE DISTRICT COURT DISMISSED THE SEC. 1201(A)
COUNT OF THE INDICTMENT, HOLDING THE STATUTE UNCONSTITUTIONAL BECAUSE
IT PERMITTED IMPOSITION OF THE DEATH SENTENCE ONLY UPON A JURY'S
RECOMMENDATION AND THEREBY MADE THE RISK OF DEATH THE PRICE OF A JURY
TRIAL.  THIS COURT HELD THE STATUTE VALID, EXCEPT FOR THE DEATH PENALTY
PROVISION; WITH RESPECT TO THE LATTER, THE COURT AGREED WITH THE TRIAL
COURT "THAT THE DEATH PENALTY PROVISION . . . IMPOSES AN IMPERMISSIBLE
BURDEN UPON THE EXERCISE OF A CONSTITUTIONAL RIGHT . . . . "  390
U.S.,AT 572.  THE PROBLEM WAS TO DETERMINE "WHETHER THE CONSTITUTION
PERMITS THE ESTABLISHMENT OF SUCH A DEATH PENALTY, APPLICABLE ONLY TO
THOSE DEFENDANTS WHO ASSERT THE RIGHT TO CONTEST THEIR GUILT BEFORE A
JURY."  390 U.S.,AT 581.  THE INEVITABLE EFFECT OF THE PROVISION WAS
SAID TO BE TO DISCOURAGE ASSERTION OF THE FIFTH AMENDMENT RIGHT NOT TO
PLEAD GUILTY AND TO DETER EXERCISE OF THE SIXTH AMENDMENT RIGHT TO
DEMAND A JURY TRIAL.  BECAUSE THE LEGITIMATE GOAL OF LIMITING THE DEATH
PENALTY TO CASES IN WHICH A JURY RECOMMENDS IT COULD BE ACHIEVED
WITHOUT PENALIZING THOSE DEFENDANTS WHO PLEAD NOT GUILTY AND ELECT A
JURY TRIAL, THE DEATH PENALTY PROVISION "NEEDLESSLY PENALIZED THE
ASSERTION OF A CONSTITUTIONAL RIGHT," 390 U.S.,AT 583, AND WAS
THEREFORE UNCONSTITUTIONAL. 

SINCE THE "INEVITABLE EFFECT" OF THE DEATH PENALTY PROVISION OF SEC.
1201(A) WAS SAID BY THE COURT TO BE THE NEEDLESS ENCOURAGEMENT OF PLEAS
OF GUILTY AND WAIVERS OF JURY TRIAL, BRADY CONTENDS THAT JACKSON
REQUIRES THE INVALIDATION OF EVERY PLEA OF GUILTY ENTERED UNDER THAT
IN THE PLEA.  PETITIONER, HOWEVER, HAS READ FAR TOO MUCH INTO THE
JACKSON OPINION. 

THE COURT MADE IT CLEAR IN JACKSON THAT IT WAS NOT HOLDING SEC.
1201(A) INHERENTLY COERCIVE OF GUILTY PLEAS:  "THE FACT THAT THE
FEDERAL KIDNAPPING ACT TENDS TO DISCOURAGE DEFENDANTS FROM INSISTING
UPON THEIR INNOCENCE AND DEMANDING TRIAL BY JURY HARDLY IMPLIES THAT
EVERY DEFENDANT WHO ENTERS A GUILTY PLEA TO A CHARGE UNDER THE ACT DOES
SO INVOLUNTARILY."  390 U.S.,AT 583, CITED IN SUPPORT OF THIS
STATEMENT, 390 U.S.,AT 583 N. 25, WAS LABOY V. NEW JERSEY, 266 F.SUPP. 
581 (D.C.N.J. 1967), WHERE A PLEA OF GUILTY (NON VULT) UNDER A SIMILAR
STATUTE WAS SUSTAINED AS VOLUNTARY IN SPITE OF THE FACT, AS FOUND BY
THE DISTRICT COURT, THAT THE DEFENDANT WAS GREATLY UPSET BY THE
POSSIBILITY OF RECEIVING THE DEATH PENALTY. 

MOREOVER, THE COURT IN JACKSON REJECTED A SUGGESTION THAT THE DEATH
PENALTY PROVISION OF SEC. 1201(A) BE SAVED BY PROHIBITING IN CAPITAL
KIDNAPING CASES ALL GUILTY PLEAS AND JURY WAIVERS, "HOWEVER CLEAR (THE
DEFENDANTS) GUILT AND HOWEVER STRONG THEIR DESIRE TO ACKNOWLEDGE IT IN
ORDER TO SPARE THEMSELVES AND THEIR FAMILIES THE SPECTACLE AND EXPENSE
OF PROTRACTED COURTROOM PROCEEDINGS."  "THAT JURY WAIVERS AND GUILTY
PLEAS MAY OCCASIONALLY BE REJECTED" WAS NO GROUND FOR AUTOMATICALLY
REJECTING ALL GUILTY PLEAS UNDER THE STATUTE, FOR SUCH A RULE "WOULD
ROB THE CRIMINAL PROCESS OF MUCH OF ITS FLEXIBILITY."  390 U.S.,AT
584. 

PLAINLY, IT SEEMS TO US, JACKSON RULED NEITHER THAT ALL PLEAS OF
GUILTY ENCOURAGED BY THE FEAR OF A POSSIBLE DEATH SENTENCE ARE
INVOLUNTARY PLEAS NOR THAT SUCH ENCOURAGED PLEAS ARE INVALID WHETHER
INVOLUNTARY OR NOT.  JACKSON PROHIBITS THE IMPOSITION OF THE DEATH
PENALTY UNDER SEC. 1201(A), BUT THAT DECISION NEITHER FASHIONED A NEW
STANDARD FOR JUDGING THE VALIDITY OF GUILTY PLEAS NOR MANDATED A NEW
APPLICATION OF THE TEST THERETOFORE FASHIONED BY COURTS AND SINCE
REITERATED THAT GUILTY PLEAS ARE VALID IF BOTH "VOLUNTARY" AND
"INTELLIGENT."  SEE BOYKIN V. ALABAMA, 395 U.S. 328, 242 (1969).  /4/ 

THAT A GUILTY PLEA IS A GRAVE AND SOLEMN ACT TO BE ACCEPTED ONLY
WITH CARE AND DISCERNMENT HAS LONG BEEN RECOGNIZED.  CENTRAL TO THE
PLEA AND THE FOUNDATION FOR ENTERINT JUDGMENT AGAINST THE DEFENDANT IS
THE DEFENDANT'S ADMISSION IN OPEN COURT THAT HE COMMITTED THE ACTS
CHARGED IN THE INDICTMENT.  HE THUS STANDS AS A WITNESS AGAINST HIMESLF
AND HE IS SHIELDED BY THE FIFTH AMENDMENT FROM BEING COMPELLED TO DO SO
- HENCE THE MINIMUM REQUIREMENT THAT HIS PLEA TO BE VOLUNTARY
EXPRESSION OF HIS OWN CHOICE.  /5/  BUT THE PLEA IS MORE THAN AD
ADMISSION OF PAST CONDUCT; IT IS THE DEFENDANT'S CONSENT THAT JUDGMENT
OF CONVICTION MAY BE ENTERED WITHOUT A TRIAL-- A WAIVER OF HIS RIGHT TO
TRIAL BEFORE A JURY OR A JUDGE.  WAIVERS OF CONSTITUTIONAL RIGHTS NOT
ONLY MUST BE VOLUNTARY BUT MUST BE KNOWING, INTELLIGENT ACTS DONE WITH
SUFFICIENT AWARENESS OF THE RELEVANT CIRCUMSTANCES AND LIKELY
CONSEQUENCES.  /6/  ON NEITHER SCORE WAS BRADY'S PLEA OF GUILTY
INVALID. 

        II 

THE TRIAL JUDGE IN 1959 FOUND THE PLEA VOLUNTARY BEFORE ACCEPTING
IT; THE DISTRICT COURT IN 1968, AFTER AN EVIDENTIARY HEARING, FOUND
THAT THE PLEA WAS VOLUNTARILY MADE; THE COURT OF APPEALS SPECIFICALLY
APPROVED THE FINDING OF VOLUNTARINESS.  WE SEE NO REASON ON THIS RECORD
TO DISTURB THE JUDGMENT OF THOSE COURTS.  PETITIONER, ADVISED BY
COMPETENT COUNSEL, TENDERED HIS PLEA AFTER HIS CODEFENDANT, WHO HAD
ALREADY GIVEN A CONFESSION, DETERMINED TO PLEAD GUILTY AND BECAME
AVAILABLE TO TESTIFY AGAINST PETITIONER.  IT WAS THIS DEVELOPMENT THAT
THE DISTRICT COURT FOUND TO HAVE TRIGGERED BRADY'S GUILTY PLEA. 

THE VOLUNTARINESS OF BRADY'S PLEA CAN BE DETERMINED ONLY BY
CONSIDERING ALL OF THE RELEVANT CIRCUMSTANCES SURROUNDING IT.  CF.
HAYNES V. WASHINGTON, 373 U.S. 503, 513 (1963); LEYRA V. DENNO, 347
U.S. 556, 558 (1954).  ONE OF THESE CIRCUMSTANCES WAS THE POSSIBILITY
OF A HEAVIER SENTENCE FOLLOWING A GUILTY VERDICT AFTER A TRIAL.  IT MAY
BE THAT BRADY, FACED WITH A STRONG CASE AGAINST HIM AND RECOGNIZING
THAT HIS CHANCES FOR ACQUITTAL WERE SLIGHT, PREFERRED TO PLEAD GUILTY
AND THUS LIMIT THE PENALTY TO LIFE IMPRISONMENT RATHER THAN TO ELECT A
JURY TRIAL WHICH COULD RESULT IN A DEATH PENALTY.  /7/  BUT EVEN IF WE
ASSUME THAT BRADY WOULD NOT HAVE PLEADED GUILTY EXCEPT FOR THE DEATH
PENALTY PROVISION OF SEC. 1201(A), THIS ASSUMPTION MERELY IDENTIFIES
THE PENALTY PROVISION AS A "BUT FOR" CAUSE OF HIS PLEA.  THAT THE
STATUTE CAUSED THE PLEA IN THIS SENSE DOES NOT NECESSARILY PROVE THAT
THE PLEA WAS COERCED AND INVALID AS AN INVOLUNTARY ACT. 

THE STATE TO SOME DEGREE ENCOURAGES PLEAS OF GUILTY AT EVERY
IMPORTANT STEP IN THE CRIMINAL PROCESS.  FOR SOME PEOPLE, THEIR BREACH
OF A STATE'S LAW IS ALONE SUFFICIENT REASON FOR SURRENDERING THEMSELVES
AND ACCEPTING PUNISHMENT.  FOR OTHERS, APPREHENSION AND CHARGE, BOTH
THREATENING ACTS BY THE GOVERNMENT, JAR THEM INTO ADMITTING THEIR
GUILT.  IN STILL OTHER CASES, THE POST-INDICTMENT ACCUMULATION OF
EVIDENCE MAY CONVINCE THE DEFENDANT AND HIS COUNSEL THAT A TRIAL IS NOT
WORTH THE AGONY AND EXPENSE TO THE DEFENDANT AND HIS FAMILY.  ALL THESE
PLEAS OF GUILTY ARE VALID IN SPITE OF THE STATE'S RESPONSIBILITY FOR
SOME OF THE FACTORS MOTIVATING THE PLEAS; THE PLEAS ARE NO MORE
IMPROPERLY COMPELLED THAN IS THE DECISION BY A DEFENDANT AT THE CLOSE
OF THE STATE'S EVIDENCE AT TRIAL THAT HE MUST TAKE THE STAND OR FACE
CERTAIN CONVICTION. 

OF COURSE, THE AGENTS OF THE STATE MAY NOT PRODUCE A PLEA BY ACTUAL
OR THREATENED PHYSICAL HARM OR BY MENTAL COERCION OVERBEARING THE WILL
OF THE DEFENDANT.  BUT NOTHING OF THE SORT IS CLAIMED IN THIS CASE; NOR
IS THERE EVIDENCE THAT BRADY WAS SO GRIPPED BY FEAR OF THE DEATH
PENALTY OR HOPE OF LENIENCY THAT HE DID NOT OR COULE NOT, WITH THE HELP
OF COUNSEL, RATIONALLY WEIGH THE ADVANTAGES OF GOING TO TRIAL AGAINST
THE ADVANTAGES OF PLEADING GUILTY.  BRADY'S CLAIM IS OF A DIFFERENT
SORT:  THAT IT VIOLATES THE FIFTH AMENDMENT TO INFLUENCE OR ENCOURAGE A
GUILTY PLEA BY OPPORTUNITY OR PROMISE OF LENIENCY AND THAT A GUILTY
PLEA IS COERCED AND INVALID IF INFLUENCED BY THE FEAR OF A POSSIBLY
HIGHER PENALTY FOR THE CRIME CHARGED IF A CONVICTION IS OBTAINED AFTER
THE STATE IS PUT TO ITS PROOF. 

INSOFAR AS THE VOLUNTARINESS OF HIS PLEA IS CONCERNED, THERE IS
LITTLE TO DIFFERENTIATE BRADY FROM (1) THE DEFENDANT, IN A JURISDICTION
WHERE THE JUDGE AND JURY HAVE THE SAME RANGE OF SENTENCING POWER, WHO
PLEADS GUILTY BECAUSE HIS LAWYER ADVISES HIM THAT THE JUDGE WILL VERY
PROBABLY BE MORE LENIENT THAN THE JURY; (2) THE DEFENDANT, IN A
JURISDICTION WHERE THE JUDGE ALONE HAS SENTENCING POWER, WHO IS ADVISED
BY COUNSEL THAT THE JUDGE IS NORMALLY MORE LENIENT WITH DEFENDANTS WHO
PLEAD GUILTY THAN WITH THOSE WHO GO TO TRIAL; (3) THE DEFENDANT WHO IS
PERMITTED BY PROSECUTOR AND JUDGE TO PLEAD GUILTY TO A LESSER OFFENSE
INCLUDED IN THE OFFENSE CHARGED; AND (4) THE DEFENDANT WHO PLEADS
GUILTY TO CERTAIN COUNTS WITH THE UNDERSTANDING THAT OTHER CHARGES WILL
BE DROPPED.  IN EACH OF THESE SITUATIONS, /8/  AS IN BRADY'S CASE, THE
DEFENDANT MIGHT NEVER PLEAD GUILTY ABSENT THE POSSIBILITY OR CERTAINTY
THAT THE PLEA WILL RESULT IN A LESSER PENALTY THAN THE SENTENCE THAT
COULD BE IMPOSED AFTER A TRIAL AND A VERDICT OF GUILTY.  WE DECLINE TO
HOLD, HOWEVER, THAT A GUILTY PLEA IS COMPELLED AND INVALID UNDER THE
FIFTH AMENDMENT WHENEVER MOTIVATED BY THE DEFENDANT'S DESIRE TO ACCEPT
THE CERTAINTY OR PROBABILITY OF A LESSER PENALTY RATHER THAN FACE A
WIDER RANGE OF POSSIBILITIES EXTENDING FROM ACQUITTAL TO CONVICTION AND
A HIGHER PENALTY AUTHORIZED BY LAW FOR THE CRIME CHARGED. 

THE ISSUE WE DEAL WITH IS INHERENT IN THE CRIMINAL LAW AND ITS
ADMINISTRATION BECAUSE GUILTY PLEAS ARE NOT CONSTITUTIONALLY FORBIDDEN,
BECAUSE THE CRIMINAL LAW CHARACTERISTICALLY EXTENDS TO JUDGE OR JURY A
RANGE OF CHOICE IN SETTING THE SENTENCE IN INDIVIDUAL CASES, AND
BECAUSE BOTH THE STATE AND THE DEFENDANT OFTEN FIND IT ADVANTAGEOUS TO
PRECLUDE THE POSSIBILITY OF THE MAXIMUM PENALTY AUTHORIZED BY LAW.  FOR
A DEFENDANT WHO SEES SLIGHT POSSIBILITY OF ACQUITTAL, THE ADVANTAGES OF
PLEADING GUILTY AND LIMITING THE PROBABLE PENALTY ARE OBVIOUS-- HIS
EXPOSURE IS REDUCED, THE CORRECTIONAL PROCESSES CAN BEGIN IMMEDIATELY,
AND THE PRACTICAL BURDENS OF A TRIAL ARE ELIMINATED.  FOR THE STATE
THERE ARE ALSO ADVANTAGES-- THE MORE PROMPTLY IMPOSED PUNISHMENT AFTER
AN ADMISSION OF GUILT MAY MORE EFFECTIVELY ATTAIN THE OBJECTIVES OF
PUNISHMENT; AND WITH THE AVOIDANCE OF TRIAL, SCARCE JUDICIAL AND
PROSECUTORIAL RESOURCES ARE CONSERVED FOR THOSE CASES IN WHICH THERE IS
A SUBSTANTIAL ISSUE OF THE DEFENDANT'S GUILT OR IN WHICH THERE IS
SUBSTANTIAL DOUBT THAT THE STATE CAN SUSTAIN ITS BURDEN OF PROOF.  /9/
IT IS THIS MUTUALITY OF ADVANTAGE THAT PERHAPS EXPLAINS THE FACT THAT
AT PRESENT WELL OVER THREE-FOURTHS OF THE CRIMINAL CONVICTIONS IN THIS
COUNTRY REST ON PLEAS OF GUILTY, /10/  A GREAT MANY OF THEM NO DOUBT
MOTIVATED AT LEAST IN PART BY THE HOPE OR ASSURANCE OF A LESSER PENALTY
THAN MIGHT BE IMPOSED IF THERE WERE A GUILTY VERDICT AFTER A TRIAL TO
JUDGE OR JURY.     OF COURSE, THAT THE PREVALENCE OF GUILTY PLEAS IS
EXPLAINABLE DOES NOT NECESSARILY VALIDATE THOSE PLEAS OR THE SYSTEM
WHICH PRODUCES THEM.  BUT WE CANNOT HOLD THAT IT IS UNCONSTITUTIONAL
FOR THE STATE TO EXTEND A BENEFIT TO A DEFENDANT WHO IN TURN EXTENDS A
SUBSTANTIAL BENEFIT TO THE STATE ADN WHO DEMONSTRATES BY HIS PLEA THAT
HE IS READY AND WILLING TO ADMIT HIS CRIME AND TO ENTER THE
CORRECTIONAL SYSTEM IN A FRAME OF MIND THAT AFFORDS HOPE FOR SUCCESS IN
REHABILITATION OVER A SHORTER PERIOD OF TIME THAN MIGHT OTHERWISE BE
NECESSARY. 

A CONTRARY HOLDING WOULD REQUIRE THE STATES AND FEDERAL GOVERNMENT
TO FORBID GUILTY PLEAS ALTOGETHER, TO PROVIDE A SINGLE INVARIABLE
PENALTY FOR EACH CRIME DEFINED BY THE STATUTES, OR TO PLACE THE
SENTENCING FUNCTION IN A SEPARATE AUTHORITY HAVING NO KNOWLEDGE OF THE
MANNER IN WHICH THE CONVICTION IN EACH CASE WAS OBTAINED.  IN ANY
EVENT, IT WOULD BE NECESSARY TO FORBID PROSECUTORS AND JUDGES TO ACCEPT
GUILTY PLEAS TO SELECTED COUNTS, TO LESSER INCLUDED OFFENSES, OR TO
REDUCED CHARGES.  THE FIFTH AMENDMENT DOES NOT REACH SO FAR. 

BRAM V. UNITED STATES, 168 U.S. 532 (1897), HELD THAT THE
ADMISSIBILITY OF A CONFESSION DEPENDED UPON WHETHER IT WAS COMPELLED
WITHIN THE MEANING OF THE FIFTH AMENDMENT.  TO BE ADMISSIBLE, A
CONFESSION MUST BE "'FREE AND VOLUNTARY:  THAT IS, MUST NOT BE
EXTRACTED BY ANY SORT OF THREATS OR VIOLENCE, NOR OBTAINED BY ANY
DIRECT OR IMPLIED PROMISES, HOWEVER SLIGHT, NOR BY THE EXERTION OF ANY
IMPROPER INFLUENCE.'"  168 U.S.,AT 542-543.  MORE RECENTLY, MALLOY V.
HOGAN, 378 U.S. 1 (1964), CARRIED FORWARD THE BRAM DEFINITION OF
COMPULSION IN THE COURSE OF HOLDING APPLICABLE TO THE STATES THE FIFTH
AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION.  /11/ 

BRAM IS NOT INCONSISTENT WITH OUR HOLDING THAT BRADY'S PLEA WAS NOT
COMPELLED EVEN THOUGH THE LAW PROMISED HIM A LESSER MAXIMUM PENALTY IF
HE DID NOT GO TO TRIAL.  BRAM DEALT WITH A CONFESSION GIVEN BY A
DEFENDANT IN CUSTODY, ALONE AND UNREPRESENTED BY COUNSEL.  IN SUCH
CIRCUMSTANCES, EVEN A MILD PROMISE OF LENIENCY WAS DEEMED SUFFICIENT TO
BAR THE CONFESSION, NOT BECAUSE THE PROMISE WAS AN ILLEGAL ACT AS SUCH,
BUT BECAUSE DEFENDANTS AT SUCH TIMES ARE TOO SENSITIVE TO INDUCEMENT
AND THE POSSIBLE IMPACT ON THEM TOO GREAT TO IGNORE AND TOO DIFFICULT
TO ASSESS.  BUT BRAM AND ITS PROGENY DID NOT HOLD THAT THE POSSIBLY
COERCIVE IMPACT OF A PROMISE OF LENIENCY COULD NOT BE DISSIPATED BY THE
PRESENCE AND ADVICE OF COUNSEL, ANY MORE THAN MIRANDA V. ARIZONA, 384
U.S. 436 (1966), HELD THAT THE POSSIBLY COERCIVE ATMOSPHERE OF THE
POLICE STATION COULD NOT BE COUNTERACTED BY THE PRESENCE OF COUNSEL OR
OTHER SAFEGUARDS.  /12/ 

BRADY'S SITUATION BEARS NO RESEMBLANCE TO BRAM'S.  BRADY FIRST
PLEADED NOT GUILTY; PRIOR TO CHANGING HIS PLEA TO GUILTY HE WAS
SUBJECTED TO NO THREATS OR PROMISES IN FACE-TO-FACE ENCOUNTERS WITH THE
AUTHORITIES.  HE HAD COMPETENT COUNSEL AND FULL OPPORTUNITY TO ASSESS
THE ADVANTAGES AND DISADVANTAGES OF A TRIAL AS COMPARED WITH THOSE
ATTENDING A PLEA OF GUILTY; THERE WAS NO HAZARD OF AN IMPULSIVE AND
IMPROVIDENT RESPONSE TO A SEEMING BUT UNREAL ADVANTAGE.  HIS PLEA OF
GUILTY WAS ENTERED IN OPEN COURT AND BEFORE A JUDGE OBVIOUSLY SENSITIVE
TO THE REQUIREMENTS OF THE LAW WITH RESPECT TO GUILTY PLEAS.  BRADY'S
PLEA, UNLIKE BRAM'S CONFESSION, WAS VOLUNTARY. 

THE STANDARD AS TO THE VOLUNTARINESS OF GUILTY PLEAS MUST BE
ESSENTIALLY THAT DEFINED BY JUDGE TUTTLE OF THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT: 

"'A PLEA OF GUILTY ENTERED BY ONE FULLY AWARE OF THE DIRECT
CONSEQUENCES, INCLUDING THE ACTUAL VALUE OF ANY COMMITMENTS MADE TO HIM
BY THE COURT, PROSECUTOR, OR HIS OWN COUNSEL, MUST STAND UNLESS INDUCED
BY THREATS (OR PROMISES TO DISCONTINUE IMPROPER HARRASSMENT),
MISREPRESENTATION (INCLUDING UNFULFILLED OR UNFULFILLABLE PROMISES), OR
PERHAPS BY PROMISES THAT ARE BY THEIR NATURE IMPROPER AS HAVING NO
PROPER RELATIONSHIP TO THE PROSECUTOR'S BUSINESS (E.G. BRIBES).'  242
F.2D AT PAGE 115."  /13/ UNDER THIS STANDARD, A PLEA OF GUILTY IS NOT
INVALID MERELY BECAUSE ENTERED TO AVOID THE POSSIBILITY OF A DEATH
PENALTY.  /14/

        III 

THE RECORD BEFORE US ALSO SUPPROTS THE CONCLUSION THAT BRADY'S PLEA
WAS INTELLIGENTLY MADE.  HE WAS ADVISED BY COMPETENT COUNSEL, HE WAS
MADE AWARE OF THE NATURE OF THE CHARGE AGAINST HIM, AND THERE WAS
NOTHING TO INDICATE THAT HE WAS INCOMPETENT OR OTHERWISE NOT IN CONTROL
OF HIS MENTAL FACULTIES; ONCE HIS CONFEDERATE HAD PLEADED GUILTY AND
BECAME AVAILABLE TO TESTIFY, HE CHOSE TO PLEAD GUILTY, PERHAPS TO
ENSURE THAT HE WOULD FACE NO MORE THAN LIFE IMPRISONMENT OR A TERM OF
YEARS.  BRADY WAS AWARE OF PRECISELY WHAT HE WAS DOING WHEN HE ADMITTED
THAT HE HAD KIDNAPPED THE VICTIM AND HAD NOT RELEASED HER UNHARMED. 

IT IS TRUE THAT BRADY'S COUNSEL ADVISED HIM THAT SEC. 1201(A)
EMPOWERED THE JURY TO IMPOSE THE DEATH PENALTY AND THAT NINE YEARS
LATER IN UNITED STATES V. JACKSON, SUPRA, THE COURT HELD THAT THE JURY
HAD NO SUCH POWER AS LONG AS THE JUDGE COULD IMPOSE ONLY A LESSER
PENALTY IF TRIAL WAS TO THE COURT OR THERE WAS A PLEA OF GUILTY.  BUT
THESE FACTS DO NOT REQUIRE US TO SET ASIDE BRADY'S CONVICTION. 

OFTEN THE DECISION TO PLEAD GUILTY IS HEAVILY INFLUENCED BY THE
DEFENDANT'S APPRAISAL OF THE PROSECUTION'S CASE AGAINST HIM AND BY THE
APPARENT LIKELIHOOD OF SECURINT LENIENCY SHOULD A GUILTY PLEA BE
OFFERED AND ACCEPTED.  CONSIDERATIONS LIKE THESE FREQUENTLY PRESENT
IMPONDERABLE QUESTIONS FOR WHICH THERE ARE NO CERTAIN ANSWERS;
JUDGMENTS MAY BE MADE THAT IN THE LIGHT OF LATER EVENTS SEEM
IMPROVIDENT, ALTHOUGH THEY WERE PERFECTLY SENSIBLE AT THE TIME.  THE
RULE THAT A PLEA MUST BE INTELLIGENTLY MADE TO BE VALID DOES NOT
REQUIRE THAT A PLEA BE VULNERABLE TO LATER ATTACK IF THE DEFENDANT DID
NOT CORRECTLY ASSESS EVERY RELEVANT FACTOR ENTERING INTO HIS DECISION. 
A DEFENDANT IS NOT ENTITLED TO WITHDRAW HIS PLEA MERELY BECAUSE HE
DISCOVERS LONG AFTER THE PLEA HAS BEEN ACCEPTED THAT HIS CALCULUS
MISAPPREHENDED THE QUALIFY OF THE STATE'S CASE OR THE LIKELY PENALTIES
ATTACHED TO ALTERNATIVE COURSES OF ACTION.  MORE PARTICULARLY, ABSENT
MISREPRESENTATION OR OTHER IMPERMISSIBLE CONDUCT BY STATE AGENTS, CF.
VON MOLTKE V. GILLIES, 332 U.S. 708 (1948), A VOLUNTARY PLEA OF GUILTY
INTELLIGENTLY MADE IN THE LIGHT OF THE THEN APPLICABLE LAW DOES NOT
BECOME VULNERABLE BECAUSE LATER JUDICIAL DECISIONS INDICATE THAT THE
PLEA RESTED ON A FAULTY PREMISE.  A PLEA OF GUILTY TRIGGERED BY THE
EXPECTATIONS OF A COMPETENTLY COUNSELED DEFENDANT THAT THE STATE WILL
HAVE A STRONG CASE AGAINST HIM IS NOT SUBJECT TO LATER ATTACK BECAUSE
THE DEFENDANT'S LAWYER CORRECTLY ADVISED HIM WITH RESPECT TO THE THEN
EXISTING LAW AS TO POSSIBLE PENALTIES BUT LATER PRONOUNCEMENTS OF THE
COURTS, AS IN THIS CASE, HOLD THAT THE MAXIMUM PENALTY FOR THE CRIME IN
QUESTION WAS LESS THAN WAS REASONABLY ASSUMED AT THE TIME THE PLEA WAS
ENTERED. 

THE FACT THAT BRADY DID NOT ANTICIPATE UNITED STATES V. JACKSON,
SUPRA, DOES NOT IMPUGN THE TRUTH OR RELIABILITY OF HIS PLEA.  WE FIND
NO REQUIREMENT IN THE CONSTITUTION THAT A DEFENDANT MUST BE PERMITTED
TO DISOWN HIS SOLEMN ADMISSIONS IN OPEN COURT THAT HE COMMITTED THE ACT
WITH WHICH HE IS CHARGED SIMPLY BECAUSE IT LATER DEVELOPS THAT THE
STATE WOULD HAVE HAD A WEAKER CASE THAN THE DEFENDANT HAD THOUGHT OR
THAT THE MAXIMUM PENALTY THEN ASSUMED APPLICABLE HAS BEEN HELD
INAPPLICABLE IN SUBSEQUENT JUDICIAL DECISIONS. 

THIS IS NOT TO SAY THAT GUILTY PLEA CONVICTIONS HOLD NO HAZARDS FOR
THE INNOCENT OR THAT THE METHODS OF TAKING GUILTY PLEAS PRESENTLY
EMPLOYED IN THIS COUNTRY ARE NECESSARILY VALID IN ALL RESPECTS.  THIS
MODE OF CONVICTION IS NO MORE FOOLPROOF THAN FULL TRIALS TO THE COURT
OR TO THE JURY.  ACCORDINGLY, WE TAKE GREAT PRECAUTIONS AGAINST UNSOUND
RESULTS, AND WE SHOULD CONTINUE TO DO SO, WHETHER CONVICTION IS BY PLEA
OR BY TRIAL.  WE WOULD HAVE SERIOUD DOUBTS ABOUT THIS CASE IF THE
ENCOURAGEMENT OF GUILTY PLEAS BY OFFERS OF LENIENCY SUBSTANTIALLY
INCREASED THE LIKELIHOOD THAT DEFENDANTS, ADVISED BY COMPETENT COUNSEL,
WOULD FALSELY CONDEMN THEMSELVES.  BUT OUR VIEW IS TO THE CONTRAYR AND
IS BASED ON OUR EXPECTATIONS THAT COURTS WILL SATISFY THEMSELVES THAT
PLEAS OF GUILTY ARE VOLUNTARILY AND INTELLIGENTLY MADE BY COMPETENT
DEFENDANTS WITH ADEQUATE ADVICE OF COUNSEL AND THAT THERE IS NOTHING TO
QUESTION THE ACCURACY AND RELIABILITY OF THE DEFENDANTS' ADMISSIONS
THAT THEY COMMITTED THE CRIMES WITH WHICH THEY ARE CHARGED.  IN THE
CASE BEFORE US, NOTHING IN THE RECORD IMPEACHES BRADY'S PLEA OR
SUGGESTS THAT HIS ADMISSIONS IN OPEN COURT WERE ANYTHING BUT THE
TRUTH. 

ALTHOUGH BRADY'S PLEA OF GUILTY MAY WELL HAVE BEEN MOTIVATED IN PART
BY A DESIRE TO AVOID A POSSIBLE DEATH PENALTY, WE ARE CONVINCED THAT
HIS PLEA WAS VOLUNTARILY AND INTELLIGENTLY MADE AND WE HAVE NO REASON
TO DOUBT THAT HIS SOLEMN ADMISSION OF GUILT WAS TRUTHFUL. 

              AFFIRMED. 

/1/  "WHOEVER KNOWINGLY TRANSPORTS IN INTERSTATE OR FOREIGN
COMMERCE, ANY PERSON WHO HAS BEEN UNLAWFULLY SEIZED, CONFINED,
INVEIGLED, DECOYED, KIDNAPED, ABDUCTED, OR CARRIED AWAY AND HELD FOR
RANSOM OR REWARD OR OTHERWISE, EXCEPT, IN THE CASE OF A MINOR, BY A
PARENT THEREOF, SHALL BE PUNISHED (1) BY DEATH IF THE KIDNPAED PERSON
HAS NOT BEEN LIBERATED UNHARMED, AND IF THE VERDICT OF THE JURY SHALL
SO RECOMMEND, OR (2) BY IMPRISONMENT FOR ANY TERM OF YEARS OR FOR LIFE,
IF THE DEATH PENALTY IS NOT IMPOSED." 

/2/  EIGHT DAYS AFTER PETITIONER PLEADED GUILTY, HE WAS BROUGHT
BEFORE THE COURT FOR SENTENCING.  AT THAT TIME, THE COURT QUESTIONED
PETITIONER FOR A SECOND TIME ABOUT THE VOLUNTARINESS OF HIS PLEA: 

"THE COURT:  . . . HAVING READ THE PRESENTENCE REPORT AND THE
STATEMENT YOU MADE TO THE PROBATION OFFICER, I WANT TO BE CERTAIN THAT
YOU KNOW WHAT YOU ARE DOING AND YOU DID KNOW WHEN YOU ENTERED A PLEA OF
GUILTY THE OTHER DAY.  DO YOU WANT TO LET THAT PLEA OF GUILTY STAND, OR
DO YOU WANT TO WITHDRAW IT AND PLEAD NOT GUILTY? 

"DEFENDANT BRADY:  I WANT TO LET THAT PLEA STAND, SIR. 

"THE COURT:  YOU UNDERSTAND THAT IN DOING THAT YOU ARE ADMITTING AND
CONFESSING THE TRUTH OF THE CHARGE CONTAINED IN THE INDICTMENT AND THAT
YOU ENTER A PLEA OF GUILTY VOLUNTARILY, WITHOUT PERSUASION, COERCION OF
ANY KIND?  IS THAT RIGHT? 

"DEFENDANT BRADY:  YES, YOUR HONOR. 

"THE COURT:  AND YOU DO DO THAT? 

"DEFENDANT BRADY:  YES, I DO. 

"THE COURT:  YOU PLEAD GUILTY TO THE CHARGE? 

"DEFENDANT BRADY:  YES, I DO."  APP. 29-30. 

/3/  WHEN PETITIONER PLEADED GUILTY, RULE 11 READ AS FOLLOWS: 

"A DEFENDANT MAY PLEAD NOT GUILTY, GUILTY OR, WITH THE CONSENT OF
THE COURT, NOLO CONTENDERE.  THE COURT MAY REFUSE TO ACCEPT A PLEA OF
GUILTY, AND SHALL NOT ACCEPT THE PLEA WITHOUT FIRST DETERMINING THAT
THE PLEA IS MADE VOLUNTARILY WITH UNDERSTANDING OF THE NATURE OF THE
CHARGE.  IF A DEFENDANT REFUSES TO PLEAD OR IF THE COURT REFUSES TO
ACCEPT A PLEA OF GUILTY OR IF A DEFENDANT CORPORATION FAILS TO APPEAR,
THE COURT SHALL ENTER A PLEA OF NOT GUILTY." 

RULE 11 WAS AMENDED IN 1966 AND NOW READS AS FOLLOWS: 

"A DEFENDANT MAY PLEAD NOT GUILTY, GUILTY OR, WITH THE CONSENT OF
THE COURT, NOLO CONTENDERE.  THE COURT MAY REFUSE TO ACCEPT A PLEA OF
GUILTY, AND SHALL NOT ACCEPT SUCH PLEA OR A PLEA OF NOLO CONTENDERE
WITHOUT FIRST ADDRESSING THE DEFENDANT PERSONALLY AND DETERMINING THAT
THE PLEA IS MADE VOLUNTARILY WITH UNDERSTANDING OF THE NATURE OF THE
CHARGE AND THE CONSEQUENCES OF THE PLEA.  IF A DEFENDANT REFUSES TO
PLEAD OR IF THE COURT REFUSES TO ACCEPT A PLEA OF GUILTY OR IF A
DEFENDANT CORPORATION FAILS TO APPEAR, THE COURT SHALL ENTER A PLEA OF
NOT GUILTY.  THE COURT SHALL NOT ENTER A JUDGMENT UPON A PLEA OF GUILTY
UNLESS IT IS SATISFIED THAT THERE IS A FACTUAL BASIS FOR THE PLEA." 

IN MCCARTHY V. UNITED STATES, 394 U.S. 459 (1969), WE HELD THAT A
FAILURE TO COMPLY WITH RULE 11 REQUIRED THAT A DEFENDANT WHO HAD
PLEADED GUILTY BE ALLOWED TO PLEAD ANEW.  IN HALLIDAY V. UNITED STATES,
394 -U.S. 831 (1969), WE HELD THAT THE MCCARTHY RULE SHOULD APPLY ONLY
IN CASES WHERE THE GUILTY PLEA WAS ACCEPTED AFTER APRIL 2, 1969, THE
DATE OF THE MCCARTHY DECISION. 

/4/  THE REQUIREMENT THAT A PLEA OF GUILTY MUST BE INTELLIGENT AND
VOLUNTARY TO BE VALID HAS LONG BEEN RECOGNIZED.  SEE NN. 5 AND 6,
INFRA.  THE NEW ELEMENT ADDED IN BOYKIN WAS THE REQUIREMENT THAT THE
RECORD MUST AFFIRMATIVELY DISCLOSE THAT A DEFENDANT WHO PLEADED GUILTY
ENTERED HIS PLEA UNDERSTANDINGLY AND VOLUNTARILY.  THIS COURT HAS NOT
YET PASSED ON THE QUESTION OF THE RETROACTIVITY OF THIS NEW
REQUIREMENT. 

/5/  MACHIBRODA V. UNITED STATES, 368 U.S. 487, 493 (1962); WALEY V.
JOHNSTON, 316 U.S. 101, 104 (1942); WALKER V. JOHNSTON, 312 U.S. 275,
286 (1941); CHAMBERS V. FLORIDA, 309 U.S. 227 (1940); KERCHEVAL V.
UNITED STATES, 274 U.S. 220, 223 (1927). 

/6/  SEE BROOKHART V. JANIS, 384 U.S. 1, (1966); ADAMS V. UNITED
STATES EX REL. MCCANN, 317 U.S. 269, 275 (1942); JOHNSON V. ZERBST 304
U.S. 458, 464 (1938); PATTON V. UNITED STATES, 281 U.S. 276, 312
(1930). 

SINCE AN INTELLIGENT ASSESSMENT OF THE RELATIVE ADVANTAGES OF
PLEADING GUILTY IS FREQUENTLY IMPOSSIBLE WITHOUT THE ASSISTANCE OF AN
ATTORNEY, THIS COURT HAS SCRUTINIZED WITH SPECIAL CARE PLEAS OF GUILTY
ENTERED BY DEFENDANTS WITHOUT THE ASSISTANCE OF COUNSEL AND WITHOUT A
VALID WAIVER OF THE RIGHT TO COUNSEL.  SEE PENNSYLVANIA EX REL. HERMAN
V. CLAUDY, 350 U.S. 116 (1956); VON MOLTKE V. GILLIES, 332 U.S.708 AND
727 (1948) (OPINIONS OF BLACK AND FRANKFURTER, JJ.); WILLIAMS V.
KAISER, 323 U.S. 471 (1945).  SINCE GIDEON V. WAINWRIGHT, 372 U.S. 335
(1963), IT HAS BEEN CLEAR THAT A GUILTY PLEA TO A FELONY CHARGE ENTERED
WITHOUT COUNSEL AND WITHOUT A WAIVER OF COUNSEL IS INVALID.  SEE WHITE
V. MARYLAND, 373 U.S. 59 (1962); ARSENAULT V. MASSACHUSETTS, 393 U.S. 5
(1968).     THE IMPORTANCE OF ASSURING THAT A DEFENDANT DOES NOT PLEAD
GUILTY EXCEPT WITH A FULL UNDERSTANDING OF THE CHARGES AGAINST HIM AND
THE POSSIBLE CONSEQUENCES OF HIS PLEA WAS AT THE HEART OF OUR RECENT
DECISIONS IN MCCARTHY V. UNITED STATES, SUPRA, AND BOYKIN V. ALABAMA,
395 U.S.238 (1969).  SEE NN. 3 AND 4, SUPRA. 

/7/  SUCH A POSSIBILITY SEEMS TO HAVE BEEN REJECTED BY THE DISTRICT
COURT IN THE SEC. 2255 PROCEEDINGS.  THAT COURT FOUND THAT "THE PLEA OF
GUILTY WAS MADE BY THE PETITIONER BY REASON OF OTHER MATTERS AND NOT BY
REASON OF THE STATUTE.  . . . " 

/8/  WE HERE MAKE NO REFERENCE TO THE SITUATION WHERE THE PROSECUTOR
OR JUDGE, OR BOTH, DELIBERATELY EMPLOY THEIR CHARGING AND SENTENCING
POWERS TO INDUCE A PARTICULAR DEFENDANT TO TENDER A PLEA OF GUILTY.  IN
BRADY'S CASE THERE IS NO CLAIM THAT THE PROSECUTOR THREATENED
PROSECUTION ON A CHARGE NOT JUSTIFIED BY THE EVIDENCE OR THAT THE TRIAL
JUDGE THREATENED BRADY WITH A HARSHER SENTENCE IF CONVICTED AFTER TRIAL
IN ORDER TO INDUCE HIM TO PLEAD GUILTY. 

/9/  FOR A MORE ELABORATE DISCUSSION OF THE FACTORS THAT MAY JUSTIFY
A REDUCTION IN PENALTY UPON A PLEA OF GUILTY, SEE AMERICAN BAR
ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, PLEAS OF GUILTY
SEC. 1.8 AND COMMENTARY, PP. 37-52 (APPROVED DRAFT 1968). 

/10/  IT HAS BEEN ESTIMABED THAT ABOUT 90%, AND PERHAPS 95%, OF ALL
CRIMINAL CONVICTIONS ARE BY PLEAS OF GUILTY; BETWEEN 70% AND 85% OF ALL
FELONY CONVICTIONS ARE ESTIMATED TO BE BY GUILTY PLEA.  D. NEWMAN,
CONVICTION, THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIAL 3 AND
N. 1 (1966). 

/11/  MALLOY V. HOGAN, 378 U.S. 1, 7 (1964).  SEE ALSO HAYNES V.
WASHINGTON, 373 U.S. 503, 513 (1963); LYNUMN V. ILLINOIS, 372 U.S. 528
(1963); WILSON V. UNITED STATES, 162 U.S. 613, 622-623 (1896). 

/12/  "THE PRESENCE OF COUNSEL, IN ALL THE CASES BEFORE US TODAY,
WOULD BE THE ADEQUATE PROTECTIVE DEVICE NECESSARY TO MAKE THE PROCESS
OF POLICE INTERROGATION CONFORM TO THE DICTATES OF THE PRIVILEGE
(AGAINST COMPELLED SELF-INCRIMINATION).  HIS PRESENCE WOULD INSURE THAT
STATEMENTS MADE IN THE GOVERNMENT-ESTABLISHED ATMOSPHERE ARE NOT THE
PRODUCT OF COMPULSION."  MIRANDA V. ARIZONA, 384 U.S.436, 466 (1966). 

/13/  SHELTON V. UNITED STATES, 246 F.2D 571, 572 N. 2 (C.A. 5TH
CIR. 1957) (EN BANC), REV'D ON CONFESSION OF ERROR ON OTHER GROUNDS,
356 U.S.26 (1958). 

/14/  OUR CONCLUSION IN THIS REGARD SEEMS TO COINCIDE WITH THE
CONCLUSIONS OF MOST OF THE LOWER FEDERAL COURTS THAT HAVE CONSIDERED
WHETHER A GUILTY PLEA TO AVOID A POSSIBLE DEATH PENALTY IS
INVOLUNTARY.  SEE UNITED STATES EX REL. BROWN V. LAVALLEE, 424 F.2D 457
(C.A. 2D CIR. 1970); UNITED STATES V. THOMAS, 415 F.2D 1216 (C.A. 9TH
CIR. 1969); PINDELL V. UNITED STATES, 296 F.SUPP.  751 (D.C. CONN.
1969); MCFARLAND V. UNITED STATES, 284 F.SUPP.  969 (D.C. MD. 1968),
AFF'D, NO. 13,146 (C.A. 4TH CIR., MAY 1, 1969), CERT. DENIED, POST, P.
1077; LABOY V. NEW JERSEY, 266 F.SUPP.  581 (D.C.N.J, 1967); GILMORE V.
CALIFORNIA, 364 F.2D 916 (C.A. 9TH CIR. 1966); BUSBY V. HOLMAN, 356
F.2D 75 (C.A. 5TH CIR. 1966); COOPER V. HOLMAN, 356 F.2D 82 (C.A. 5TH
CIR.), CERT. DENIED 385 U.S. 855 (1966); GODLOCK V. ROSS, 259 F.SUPP. 
659 (D.C.E.D.N.C. 1966); UNITED STATES EX REL. ROBINSON V. FAY, 348
F.2D 705 (C.A. 2D CIR. 1965), CERT. DENIED, 382 U.S. 997 (1966);
OVERMAN V. UNITED STATES, 281 F.2D 497 (C.A. 6TH CIR. 1960), CERT.
DENIED, 368 U.S. 993 (1962); MARTIN V. UNITED STATES, 256 F.2D 345
(C.A. 5TH CIR.), CERT. DENIED, 358 U.S. 921 (1958).  BUT SEE SHAW V.
UNITED STATES, 299 F.SUPP.  824 (D.C.S.D. GA. 1969); ALFORD V. NORTH
CAROLINA, 405 F.2D 340 (C.A. 4TH CIR. 1968), PROB.  JURIS.  NOTED, 394
U.S. 956 (1969), RESTORED TO CALENDAR FOR REARGUMENT, POST, P. 1060. 

MR. JUSTICE BLACK, WHILE ADHERING TO HIS BELIEF THAT UNITED STATES
V. JACKSON, 390 U.S. 570, WAS WRONGLY DECIDED, CONCURS IN THE JUDGMENT
AND IN SUBSTANTIALLY ALL OF THE OPINION IN THIS CASE. 

(FOR OPINION OF MR. JUSTICE BRENNAN, CONCURRING IN THE RESULT, SEE
POST, P. 799.) 

PETER J. ADANG, BY APPOINTMENT OF THE COURT, 396 U.S.809, ARGUED THE
CAUSE AND FILED A BRIEF FOR PETITIONER. 

JOSEPH J. CONNOLLY ARGUED THE CAUSE FOR THE UNINTED STATES.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WILSON, JEROME M. FEIT, AND MARSHALL TAMOR GOLDING. 
..END :







MCMANN V. RICHARDSON, 397 U.S., 759 


       MCMANN, WARDEN, ET AL. V. RICHARDSON, ET AL.

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 153.  ARGUED FEBRUARY 24, 1970-- DECIDED MAY 4, 1970 


RESPONDENTS WERE CONVICTED IN STATE COURT OF FELONIES, FOLLOWING
THEIR PLEAS OF GUILTY, ENTERED ON ADVICE OF COUNSEL, WHICH IN
PETITIONER FOR COLLATERAL RELIEF THEY CLAIMED, INTER ALIA, WERE THE
ILLEGAL PRODUCT OF COERCED CONFESSIONS.  FOLLOWING DENIAL OF RELIEF IN
THE STATE COURTS, THE DISTRICT COURTS, WITHOUT EVIDENTIARY HEARINGS,
DENIED THE PETITIONER.  THE COURT OF APPEALS REVERSED IN EACH CASE,
HOLDING THAT A GUILTY PLEA (1) EFFECTIVELY WAIVES PRETRIAL
IRREGULARITIES ONLY IF VOLUNTARY; (2) IS NOT VOLUNTARY IF IT RESULTS
FROM AN INVOLUNTARY CONFESSION; AND (3) IS VULNERABLE (AT LEAST IN NEW
YORK CASES LIKE THESE) WHERE ENTERED PRIOR TO JACKSON V. DENNO, 378
U.S. 368 (1964).  HELD: 

1.  A COMPETENTLY COUNSELED DEFENDANT WHO ALLEGES THAT HE PLEADED
GUILTY BECAUSE OF A PRIOR COERCED CONFESSION IS NOT, WITHOUT MORE,
ENTITLED TO A HEARING ON HIS PETITION FOR HABEAS CORPUS.  PP. 768-771. 

(A) A DEFENDANT WHO PLEADS GUILTY DESPITE HIS FEELING THAT THE
EVIDENCE AGAINST HIM IS WEAK, APART FROM A CONFESSION HE DEEMS
INADMISSIBLE, IS MERELY REFUSING TO PRESENT HIS FEDERAL CLAIMS
REGARDING THE CONFESSION TO THE STATE COURT IN THE FIRST INSTANCE. 
SUCH A DEFENDANT CANNOT CLAIM THAT HIS BYPASS OF STATE REMEDIES WAS NOT
AN INTELLIGENT ACT ABSENT INCOMPETENT ADVICE BY COUNSEL.  PP. 768-769. 

(B) A DEFENDANT'S PLEA OF GUILTY BASED ON REASONABLY COMPETENT
ADVICE IS AN INTELLIGENT PLEA NOT OPEN TO ATTACK AS BEING INVOLUNTARY
ON THE GROUND THAT HIS COUNSEL MAY HAVE MISJUDGED THE ADMISSIBILITY OF
THE DEFENDANT'S CONFESSION.  PP. 769-771. 

2.  A DEFENDANT WHO PLEADS GUILTY, THEREBY WAIVING HIS STATE COURT
REMEDIES, DOES SO UNDER THE LAW THEN EXISTING AND ASSUMES THE RISK OF
ORDINARY ERROR IN EITHER HIS OR HIS ATTORNEY'S ASSESSMENT OF THE LAW
AND FACTS; AND IN THIS CASE THE FACT THAT RESPONDENTS' COUNSEL DID NOT
ANTICIPATE THIS COURT'S DECISION IN JACKSON V. DENNO, SUPRA, AND DID
NOT CONSIDER INVALID THE NEW YORK PROCEDURES EXISTING AT THE TIME THEIR
CLIENTS PLEADED GUILTY DOES NOT MEAN THAT RESPONDENTS WERE
INCOMPETENTLY ADVISED.  PP. 771-774. 

408 F.2D 48 AND 658, AND 409 F.2D 1016, VACATED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE PETITION FOR CERTIORARI, WHICH WE GRANTED, 396 U.S. 813 (1969),
SEEKS REVERSAL OF THREE SEPARATE JUDGMENTS OF THE COURT OF APPEALS FOR
THE SECOND CIRCUIT ORDERING HEARINGS ON PETITIONER FOR HABEAS CORPUS
FILED BY THE RESPONDENTS IN THIS CASE.  /1/ THE PRINCIPAL ISSUE BEFORE
US IS WHETHER AND TO WHAT EXTENT AN OTHERWISE VALID GUILTY PLEA MAY BE
IMPEACHED IN COLLATERAL PROCEEDINGS BY ASSERTIONS OR PROOF THAT THE
PLEA WAS MOTIVATED BY A PRIOR COERCED CONFESSION.  WE FIND OURSELVES IN
SUBSTANTIAL DISAGREEMENT WITH THE COURT OF APPEALS. 

        I 

THE THREE RESPONDENTS NOW BEFORE US ARE DASH, RICHARDSON, AND
WILLIAMS.  WE FIRST STATE THE ESSENTIAL FACTS INVOLVED AS TO EACH. 

DASH:  IN FEBRUARY 1959, RESPONDENT DASH WAS CHARGED WITH FIRST
DEGREE ROBBERY WHICH, BECAUSE DASH HAD PREVIOUSLY BEEN CONVICTED OF A
FELONY, WAS PUNISHABLE BY UP TO 60 YEARS' IMPRISONMENT.  /2/  AFTER
PLEADING GUILTY TO ROBBERY IN THE SECOND DEGREE IN APRIL, HE WAS
SENTENCED TO A TERM OF EIGHT TO 12 YEARS AS A SECOND-FELONY OFFENDER. 
/3/  HIS PETITION FOR COLLATERAL RELIEF IN THE STATE COURTS IN 1963 WAS
DENIED WITHOUT A HEARING.  /4/  RELIEF WAS THEN SOUGHT IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WHERE HIS
PETITION FOR HABEAS CORPUS ALLEGED THAT HIS GUILTY PLEA WAS THE ILLEGAL
PRODUCT OF A COERCED CONFESSION AND OF THE TRIAL JUDGE'S THREAT TO
IMPOSE A 60-YEAR SENTENCE IF HE WAS CONVICTED AFTER A PLEA OF NOT
GUILTY.  HIS PETITION ASSERTED THAT HE HAD BEEN BEATEN, REFUSED
COUNSEL, AND THREATENED WITH FALSE CHARGES PRIOR TO HIS CONFESSION AND
THAT THE TRIAL JUDGE'S THREAT WAS MADE DURING AN OFF-THE-RECORD
COLLOQUY IN ONE OF DASH'S APPEARANCES IN COURT PRIOR TO THE DATE OF HIS
PLEA OF GUILTY.  DASH ALSO ASSERTED THAT HIS COURT-APPOINTED ATTORNEY
HAD ADVISED PLEADING GUILTY SINCE DASH DID NOT "STAND A CHANCE DUE TO
THE ALLEGED CONFESSION SIGNED" BY HIM.  THE DISTRICT COURT DENIED THE
PETITION WITHOUT A HEARING BECAUSE "A VOLUNTARY PLEA OF GUILTY ENTERED
ON ADVICE OF COUNSEL CONSTITUTES A WAIVER OF ALL NONJURISDICTIONAL
DEFECTS IN ANY PRIOR STAGE OF THE PROCEEDINGS AGAINST THE DEFENDANT,"
CITING UNITED STATES EX REL. GLENN V. MCMANN, 349 F.2D 1018 (C.A. 2D
CIR. 1965), CERT. DENIED, 383 U.S. 915 (1966), AND OTHER CASES.  THE
ALLEGATION OF COERCION BY THE TRIAL JUDGE DID NOT CALL FOR A HEARING
SINCE THE PROSECUTOR HAD FILED AN AFFIDAVIT IN THE STATE COURT
CATEGORICALLY DENYING THAT THE TRIAL JUDGE EVER THREATENED THE
DEFENDANT.  DASH THEN APPEALED TO THE COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

RICHARDSON:  RESPONDENT RICHARDSON WAS INDICTED IN APRIL 1963 FOR
MURDER IN THE FIRST DEGREE.  TWO ATTORNEYS WERE ASSIGNED TO REPRESENT
RICHARDSON.  HE INITIALLY PLEADED NOT GUILTY BUT IN JULY WITHDREW HIS
PLEA AND PLEADED GUILTY TO MURDER IN THE SECOND DEGREE, SPECIFICALLY
ADMITTING AT THE TIME THAT HE STRUCK THE VICTIM WITH A KNIFE.  HE WAS
CONVICTED AND SENTENCED TO A TERM OF 30 YEARS TO LIFE.  FOLLOWING THE
DENIAL WITHOUT A HEARING OF HIS APPLICATION FOR COLLATERAL RELIEF IN
THE STATE COURTS, /5/  RICHARDSON FILED HIS PETITION FOR HABEAS CORPUS
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW
YORK, ALLEGING IN CONCLUSORY FASHION THAT HIS PLEA OF GUILTY WAS
INDUCED BY A COERCED CONFESSION AND BY INEFFECTIVE COURT-APPOINTED
COUNSEL.  HIS PETITION WAS DENIED WITHOUT A HEARING, AND HE APPEALED TO
THE COURT OF APPEALS FOR THE SECOND CIRCUIT, INCLUDING WITH HIS
APPELLATE BRIEF A SUPPLEMENTAL AFFIDAVIT IN WHICH HE ALLEGED THAT HE
WAS BEATEN INTO CONFESSING THE CRIME, THAT HIS ASSIGNED ATTORNEY
CONFERRED WITH HIM ONLY 10 MINUTES PRIOR TO THE DAY THE PLEA OF GUILTY
WAS TAKEN, THAT HE ADVISED HIS ATTORNEY THAT HE DID NOT WANT TO PLEAD
GUILTY TO SOMETHING HE DID NOT DO, AND THAT HIS ATTORNEY ADVISED HIM TO
PLEAD GUILTY TO AVOID THE ELECTRIC CHAIR, SAYING THAT "THIS WAS NOT THE
PROPER TIME TO BRING UP THE CONFESSION" AND THAT RICHARDSON "COULD
LATER EXPLAIN BY A WRIT OF HABEAS CORPUS HOW MY CONFESSION HAD BEEN
BEATEN OUT OF ME." 

WILLIAMS:  IN FEBRUARY 1956, RESPONDENT WILLIAMS WAS INDICTED FOR
FIVE FELONIES, INCLUDING RAPE AND ROBBERY.  HE PLEADED GUILTY TO
ROBBERY IN THE SECOND DEGREE IN MARCH AND WAS SENTENCED IN APRIL TO A
TERM OF 7 1/2 TO 15 YEARS.  AFTER UNSUCCESSFUL APPLICATIONS FOR
COLLATERAL RELIEF IN THE STATE COURTS, /6/  HE PETITIONED FOR A WRIT OF
HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, ASSERTING THAT HIS PLEA WAS THE CONSEQUENCE OF A
COERCED CONFESSION AND WAS MADE WITHOUT AN UNDERSTANDING OF THE NATURE
OF THE CHARGE AND THE CONSEQUENCES OF THE PLEA.  IN HIS PETITION AND IN
DOCUMENTS SUPPORTING IT, ALLEGATIONS WERE MADE THAT HE HAD BEEN
HANDCUFFED TO A DESK WHILE BEING INTERROGATED, THAT HE WAS THREATENED
WITH A PISTOL AND PHYSICALLY ABUSED, AND THAT HIS ATTORNEY, IN ADVISING
HIM TO PLEAD GUILTY, IGNORED HIS ALIBI DEFENSE AND REPRESENTED THAT HIS
PLEA WOULD BE TO A MISDEMEANOR CHARGE RATHER THAN TO A FELONY CHARGE. 
THE PETITION WAS DENIED WITHOUT A HEARING AND WILLIAMS APPEALED. 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED IN EACH CASE,
SITTING EN BANC AND DIVIDING SIX TO THREE IN DASH'S CASE /7/  AND
DISPOSING OF RICHARDSON'S AND WILLIAMS' CASES IN DECISIONS BY THREE
JUDGE PANELS.  /8/  IN EACH CASE IT WAS DIRECTED THAT A HEARING BE HELD
ON THE PETITION FOR HABEAS CORPUS.  /9/  IT WAS THE COURT OF APPEALS'
VIEW THAT A PLEA OF GUILTY IS AN EFFECTIVE WAIVER OF PRETRIAL
IRREGULARITIES ONLY IF THE PLEA IS VOLUNTARY AND THAT A PLEA IS NOT
VOLUNTARY IF IT IS THE CONSEQUENCE OF AN INVOLUNTARY CONFESSION.  /10/
THAT THE PETITIONER WAS REPRESENTED BY COUNSEL AND DENIED THE EXISTENCE
OF COERCION OR PROMISES WHEN TENDERING HIS PLEA DOES NOT FORECLOSE A
HEARING ON HIS PETITION FOR HABEAS CORPUS ALLEGING MATTERS OUTSIDE THE
STATE COURT RECORD.  ALTHOUGH CONCLUSORY ALLEGATIONS WOULD IN NO CASE
SUFFICE, THE ALLEGATIONS IN EACH OF THESE CASES CONCERNING THE MANNER
IN WHICH THE CONFESSION WAS COERCED AND THE CONNECTION BETWEEN THE
CONFESSION AND THE PLEA WERE DEEMED SUFFICIENT TO REQUIRE A HEARING. 
THE LAW REQUIRED THIS MUCH, THE COURT OF APPEALS THOUGHT, AT LEAST IN
NEW YORK, WHERE PRIOR TO JACKSON V. DENNO, 378 U.S. 368 (1964),
CONSTITUTIONALLY ACCEPTABLE PROCEDURES WERE UNAVAILABLE TO A DEFENDANT
TO TEST THE VOLUNTARINESS OF HIS CONFESSION.  THE COURT OF APPEALS ALSO
ORDERED A HEARING IN EACH CASE FOR REASONS OTHER THAN THAT THE PLEA WAS
CLAIMED TO REST ON A COERCED CONFESSION WHICH THE DEFENDANT HAD NO
ADEQUATE OPPORTUNITY TO TEST IN THE STATE COURTS.  IN THE DASH CASE,
THE ADDITIONAL ISSUE TO BE CONSIDERED WAS WHETHER THE TRIAL JUDGE
COERCED THE GUILTY PLEA BY THREATS AS TO THE PROBABLE SENTENCE AFTER
TRIAL AND CONVICTION ON A PLEA OF NOT GUILTY; IN RICHARDSON, THE
ADDITIONAL ISSUE WAS THE INADEQUACY OF COUNSEL ALLEGEDLY ARISING FROM
THE SHORT PERIOD OF CONSULTATION AND COUNSEL'S ADVICE TO THE EFFECT
THAT THE CONFESSION ISSUE COULD BE RAISED AFTER A PLEA OF GUILTY; AND
IN WILLIAMS, THE ADDITIONAL QUESTION WAS THE ALLEGED FAILURE OF COUNSEL
TO CONSIDER WILLIAMS' ALIBI DEFENSE AND TO MAKE IT CLEAR THAT HE WAS
PLEADING TO A FELONY RATHER THAN TO A MISDEMEANOR. 

        II 

THE CORE OF THE COURT OF APPEALS' HOLDING IS THE PROPOSITION THAT IF
IN A COLLATERAL PROCEEDING A GUILTY PLEA IS SHOWN TO HAVE BEEN
TRIGGERED BY A COERCED CONFESSION-- IF THERE WOULD HAVE BEEN NO PLEAS
HAD THERE BEEN NO CONFESSION-- THE PLEA IS VOLNERABLE AT LEASE IN CASES
COMING FROM NEW YORK WHERE THE GUILTY PLEA WAS TAKEN PRIOR TO JACKSON
V. DENNO, SUPRA.  WE ARE UNABLE TO AGREE WITH THE COURT OF APPEALS ON
THIS PROPOSITION. 

A CONVICTION AFTER A PLEA OF GUILTY NORMALLY RESTS ON THE
DEFENDANTS' OWN ADMISSION IN OPEN COURT THAT HE COMMITTED THE ACTS WITH
WHICH HE IS CHARGED.  BRADY V. UNITED STATES, ANTE, AT 748; MCCARTHY V.
UNITED STATES, 394 U.S. 459, 466 (1969).  THAT ADMISSION MAY NOT BE
COMPELLED, AND SINCE THE PLEA IS ALSO A WAIVER OF TRIAL-- AND UNLESS
THE APPLICABLE LAW OTHERWISE PROVIDES, /11/  A WAIVER OF THE RIGHT TO
CONTEST THE ADMISSIBILITY OF ANY EVIDENCE THE STATE MIGHT HAVE OFFERED
AGAINST THE DEFENDANT-- IT MUST BE AN INTELLIGENT ACT "DONE WITH
SUFFICIENT AWARENESS OF THE RELEVANT CIRCUMSTANCES AND LIKELY
CONSEQUENCES."  BRADY V. UNITED STATES, ANTE, AT 748. 

FOR PRESENT PURPOSES, WE PUT ASIDE THOSE CASES WHERE THE DEFENDANT
HAS HIS OWN REASONS FOR PLEADING GUILTY WHOLLY ASIDE FROM THE STRENGTH
OF THE CASE AGAINST HIM AS WELL AS THOSE CASES WHERE THE DEFENDANT,
ALTHOUGH HE WOULD HAVE GONE TO TRIAL HAD HE THOUGHT THE STATE COULD NOT
PROVE ITS CASE, IS MOTIVATED BY EVIDENCE AGAINST HIM INDEPENDENT OF THE
CONFESSION.  IN THESE CASES, AS THE COURT OF APPEALS RECOGNIZED, THE
CONFESSION, EVEN IF COERCED, IS NOT A SUFFICIENT FACTOR IN THE PLEA TO
JUSTIFY RELIEF.  NEITHER DO WE HAVE BEFORE US THE UNCOUNSELED
DEFENDANT, SEE PENNSYLVANIA EX RE. HERMAN V. CLAUDY, 350 U.S. 116
(1956), NOR THE SITUATION WHERE THE CIRCUMSTANCES THAT COERCED THE
CONFESSION HAVE ABIDING IMPACT AND ALSO TAINT THE PLEA.  CF. CHAMBERS
V. FLORIDA, 309 U.S. 227 (1940).  IT IS NOT DISPUTED THAT IN SUCH CASES
A GUILTY PLEA IS PROPERLY OPEN TO CHALLENGE.  /12/ 

THE ISSUE ON WHICH WE DIFFER WITH THE COURT OF APPEALS ARISES IN
THOSE SITUATIONS INVOLVING THE COUNSELED DEFENDANT WHO ALLEGEDLY WOULD
PUT THE STATE TO ITS PROOF IF THERE WAS A SUBSTANTIAL ENOUGH CHANCE OF
ACQUITTAL, WHO WOULD DO SO EXCEPT FOR A PRIOR CONFESSION THAT MIGHT BE
OFFERED AGAINST HIM, AND WHO BECAUSE OF THE CONFESSION DECIDES TO PLEAD
GUILTY TO SAVE HIMSELF THE EXPENSE AND AGONY OF A TRIAL AND PERHAPS
ALSO TO MINIMIZE THE PENALTY THAT MIGHT BE IMPOSED.  AFTER CONVICTION
ON SUCH A PLEA, A DEFENDANT ENTITLED TO A HEARING, AND TO RELIEF IF HIS
FACTUAL CLAIMS ARE ACCEPTED, WHEN HIS PETITION FOR HABEAS CORPUS
ALLEGES THAT HIS CONFESSSION WAS IN FACT COERCED AND THAT IT MOTIVATED
HIS PLEA?  WE THINK NOT IF HE ALLEGES AND PROVES NO MORE THAN THIS. 

        III 

SINCE WE ARE DEALING WITH A DEFENDANT WHO DEEMS HIS CONFESSION
CRUCIAL TO THE STATE'S CASE AGAINST HIM AND WHO WOULD GO TO TRIAL IF HE
THOUGHT HIS CHANCES OF ACQUITTAL WERE GOOD, HIS DECISION TO PLEAD
GUILTY OR NOT TURNS ON WHETHER HE THINKS THE LAW WILL ALLOW HIS
CONFESSION TO BE USED AGAINST HIM.  FOR THE DEFENDANT WHO CONSIDERS HIS
CONFESSION INVOLUNTARY AND HENCE UNUSABLE AGAINSTHIM AT A TRIAL,
TENDERING A PLEA OF GUILTY WOULD SEEM A MOST IMPROBABLE ALTERNATIVE. 
THE SENSIBLE COURSE WOULD BE TO CONTEST HIS GUILT, PREVAIL ON HIS
CONFESSION CLAIM AT TRIAL, ON APPEAL, OR, IF NECESSARY, IN A COLLATERAL
PROCEEDING, AND WIN ACQUITTAL, HOWEVER GUILTY HE MIGHT BE.  THE BOOKS
ARE FULL OF CASES IN NEW YORK AND ELSEWHERE, WHERE THE DEFENDANT HAS
MADE THIS CHOICE AND HAS PREVAILED.  IF HE NEVERTHELESS PLEADS GUILTY
THE PLEA CAN HARDLY BE BLAMED ON THE CONFESSION WHICH IN HIS VIEW WAS
INADMISSIBLE EVIDENCE AND NO PROPER PART OF THE STATE'S CASE.  SINCE BY
HYPOTHESIS THE EVIDENCE ASIDE FROM THE CONFESSION IS WEAK AND THE
DEFENDANT HAS NO REASONS OF HIS OWN TO PLEAD, A GUILTY PLEA IN SUCH
CIRCUMSTANCES IS NOTHING LESS THAN A REFUSAL TO PRESENT HIS FEDERAL
CLAIMS TO THE STATE COURT IN THE FIRST INSTANCE-- A CHOICE BY THE
DEFENDANT TO TAKE THE BENEFITS, IF ANY, OF A PLEA OF GUILTY AND THEN TO
PURSUE HIS COERCED-CONFESSION CLAIM IN COLLATERAL PROCEEDINGS.  SURELY
LATER ALLEGATIONS THAT THE CONFESSION RENDERED HIS PLEA INVOLUNTARY
WOULD APPEAR INCREDIBLE, AND WHETHER HIS PLEAIN BYPASS OF STATE
REMEDIES WAS AN INTELLIGENT ACT DEPENDS ON WHETHER HE WAS SO
INCOMPETENTLY ADVISED BY COUNSEL CONCERNING THE FORUM IN WHICH HE
SHOULD FIRST PRESENT HIS FEDERAL CLAIM THAT THE CONSTITUTION WILL
AFFORD HIM ANOTHER CHANCE TO PLEAD. 

A MORE CREDIBLE EXPLANATION FOR A PLEA OF GUILTY BY A DEFENDANT WHO
WOULD GO TO TRIAL EXCEPT FOR HIS PRIOR CONFESSION IN HIS PREDICTION
THAT THE LAW WILL PERMIT HIS ADMISSIONS TO BE USED AGAINST HIM BY THE
TRIER OF FACT.  AT LEAST THE PROBABILITY OF THE STATE'S BEING PERMITTED
TO USE THE CONFESSION AS EVIDENCE IS SUFFICIENT TO CONVICE HIM THAT THE
STATE'S CASE IS TOO STRONG TO CONTEST AND THAT A PLEA OF GUILTY IS THE
MOST ADVANTAGEOUS COURSE.  NOTHING IN THIS TRAIN OF EVENTS SUGGESTS
THAT THE DEFENDANT'S PLEA, AS DISTINGUISHED FROM HIS CONFESSION, IS AN
INVOLUNTARY ACT.  HIS LATER PETITION FOR COLLATERAL RELIEF ASSERTING
THAT A COERCED CONFESSION INDUCED HIS PLEA IS AT MOST A CLAIM THAT THE
ADMISSIBILITY OF HIS CONFESSION WAS MISTAKENLY ASSESSED AND THAT SINCE
HE WAS ERRONEOUSLY ADVISED, EITHER UNDER THE THEN APPLICABLE LAW OR
UNDER THE LAW LATER ANNOUNCED, HIS PLEA WAS AN UNINTELLIGENT AND
VOIDABLE ACT.  THE CONSTITUTION, HOWEVER, DOES NOT RENDER PLEAS OF
GUILTY SO VULNERABLE. 

AS WE SAID IN BRADY V. UNITED STATES, ANTE, AT 756-757, THE DECISION
TO PLEAD GUILTY BEFORE THE EVIDENCE IS IN FREQUENTLY INVOLVES THE
MAKING OF DIFFICULT JUDGMENTS.  ALL THE PERTINENT FACTS NORMALLY CANNOT
BE KNOWN UNLESS WITNESSES ARE EXAMINED AND CROSS-EXAMINED IN COURT. 
EVEN THEN THE TRUTH WILL OFTEN BE IN DISPUTE.  IN THE FACE OF
UNAVOIDABLE UNCERTAINTY, THE DEFENDANT AND HIS COUNSEL MUST MAKE THEIR
BEST JUDGMENT AS TO THE WEIGHT OF THE STATE'S CASE.  COUNSEL MUST
PREDICT HOW THE FACTS, AS HE UNDERSTANDS THEM, WOULD BE VIEWED BY A
COURT.  IF PROVED, WOULD THOSE FACTS CONVINCE A JUDGE OR JURY OF THE
DEFENDANT'S GUILT?  ON THOSE FACTS WOULD EVIDENCE SEIZED WITHOUT A
WARRANT BE ADMISSIBLE?  WOULD THE TRIER OF FACT ON THOSE FACTS FIND A
CONFESSION VOLUNTARY AND ADMISSIBLE?  QUESTIONS LIKE THESE CANNOT BE
ANSWERED WITH CERTITUDE; YET A DECISION TO PLEAD GUILTY MUST
NECESSARILY REST UPON COUNSEL'S ANSWERS, UNCERTAIN AS THEY MAY BE.
WAIVING TRIAL ENTAILS THE INHERENT RISK THAT THE GOOD-FAITH EVALUATIONS
OF A REASONABLY COMPETENT ATTORNEY WILL TURNOUT TO BE MISTAKEN EITHER
AS TO THE FACTS OR AS TO WHAT A COURT'S JUDGMENT MIGHT BE ON GIVEN
FACTS.     THAT A GUILTY PLEA MUST BE INTELLIGENTLY MADE IS NOT A
REQUIREMENT THAT ALL ADVICE OFFERED BY THE DEFENDANT'S LAWYER WITHSTAND
RETROSPECTIVE EXAMINATION IN A POST-CONVICTION HEARING.  COURTS
CONTINUE TO HAVE SERIOUS DIFFERENCES AMONG THEMSELVES ON THE
ADMISSIBILITY OF EVIDENCE, BOTH WITH RESPECT TO THE PROPER STANDARD BY
WHICH THE FACTS ARE TO BE JUDGED AND WITH RESPECT TO THE APPLICATION OF
THAT STANDARD TO PARTICULAR FACTS.  THAT THIS COURT MIGHT HOLD A
DEFENDANT'S CONFESSION, INADMISSIBLE IN EVIDENCE, POSSIBLY BY A DIVIDED
VOTE, HARDLY JUSTIFIES A CONCLUSION THAT THE DEFENDANT'S ATTORNEY WAS
INCOMPETENT OR INEFFECTIVE WHEN HE THOUGHT THE ADMISSIBILITY OF THE
CONFESSION SUFFICIENTLY PROBABLE TO ADVISE A PLEA OF GUILTY. 

IN OUR VIEW A DEFENDANT'S PLEA OF GUILTY BASED ON REASONABLY
COMPETENT ADVICE IS AN INTELLIGENT PLEA NOT OPEN TO ATTACK ON THE
GROUND THAT COUNSEL MAY HAVE MISJUDGED THE ADMISSIBILITY OF THE
DEFENDANT'S CONFESSION.  /13/  WHETHER A PLEA OF GUILTY IS
UNINTELLIGENT AND THEREFORE VULNERABLE WHEN MOTIVATED BY A CONFESSION
ERRONEOUSLY THOUGHT ADMISSIBLE IN EVIDENCE DEPENDS AS AN INITIAL
MATTER, NOT ON WHETHER A COURT WOULD RETROSPECTIVELY CONSIDER COUNSEL'S
ADVICE TO BE RIGHT OR WRONG, BUT ON WHETHER THAT ADVICE WAS WITHIN THE
RANGE OF COMPETENCE DEMANDED OF ATTORNEYS IN CRIMINAL CASES.  ON THE
ONE HAND, UNCERTAINTY IS INHERENT IN PREDICTING COURT DECISIONS; BUT ON
THE OTHER HAND DEFENDANTS FACING FELONY CHARGES ARE ENTITLED TO THE
EFFECTIVE ASSISTANCE OF COMPETENT COUNSEL.  /14/  BEYOND THIS WE THINK
THE MATTER, FOR THE MOST PART, SHOULD BE LEFT TO THE GOOD SENSE AND
DISCRETION OF THE TRIAL COURTS WITH THE ADMONITION THAT IF THE RIGHT TO
COUNSEL GUARANTEED BY THE CONSTITUTION IS TO SERVE ITS PURPOSE,
DEFENDANTS CANNOT BE LEFT TO THE MERCIES OF INCOMPETENT COUNSEL, AND
THAT JUDGES SHOULD STRIVE TO MAINTAIN PROPER STANDARDS OF PERFORMANCE
BY ATTORNEYS WHO ARE REPRESENTING DEFENDANTS IN CRIMINAL CASES IN THEIR
COURTS. 

        IV 

WE HOLD, THEREFORE, THAT A DEFENDANT WHO ALLEGES THAT HE PLEADED
GUILTY BECAUSE OF A PRIOR COERCED CONFESSION IS NOT, WITHOUT MORE,
ENTITLED TO A HEARING ON HIS PETITION FOR HABEAS CORPUS.  NOR DO WE
DEEM THE SITUATION SUBSTANTIALLY DIFFERENT WHERE THE DEFENDANT'S PLEA
WAS ENTERED PRIOR TO JACKSON V. DENNO, 378 U.S. 368 (1964).  AT ISSUE
IN THAT CASE WAS THE CONSTITUTIONALITY OF THE NEW YORK PROCEDURE FOR
DETERMINING THE VOLUNTARINESS OF A CONFESSION OFFERED IN EVIDENCE AT A
JURY TRIAL.  THIS PROCEDURE, WHICH WOULD HAVE BEEN PAPLICABLE TO THE
RESPONDENTS IF THEY HAD GONE TO TRIAL, REQUIRED THE TRIAL JUDGE, WHEN
THE CONFESSION WAS OFFERED AND A PRIMA FACIE CASE OF VOLUNTARINESS
ESTABLISHED, TO SUBMIT THE ISSUE TO THE JURY WITHOUT HIMSELF FINALLY
RESOLVING DISPUTED ISSUES OF FACT AND DETERMINING WHETHER OR NOT THE
CONFESSION WAS VOLUNTARY.  THE COURT HELD THIS PROCEDURE
UNCONSTITUTIONAL BECAUSE IT DID NOT "AFFORD A RELIABLE DETERMINATION OF
THE VOLUNTARINESS OF THE CONFESSION OFFERED IN EVIDENCE AT THE TRIAL,
DID NOT ADEQUATELY PROTECT JACKSON'S RIGHT TO BE FREE OF A CONVICTION
BASED UPON A COERCED CONFESSION AND THEREFORE CANNOT WITHSTAND
CONSTITUTIONAL ATTACK UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT."  378 U.S.,AT 377.  IN REACHING THAT CONCLUSION, THE COURT
OVERRULED STEIN V. NEW YORK, 346 U.S. 156 (1953), WHICH HAD APPROVED
THE NEW YORK PRACTICE. 

WHETHER A GUILTY PLEA WAS ENTERED BEFORE OR AFTER JACKSON V. DENNO,
THE QUESTION OF THE VALIDITY OF THE PLEA REMAINS THE SAME:  WAS THE
PLEA A VOLUNTARY AND INTELLIGENT ACT OF THE DEFENDANT?  AS WE HAVE
PREVIOUSLY SET OUT, A PLEA OF GUILTY IN A STATE COURT IS NOT SUBJECT TO
COLLATERAL ATTACK IN A FEDERAL COURT ON THE GROUND THAT IT WAS
MOTIVATED BY A COERCED CONFESSION UNLESS THE DEFENDANT WAS
INCOMPETENTLY ADVISED BY HIS ATTORNEY.  FOR THE RESPONDENTS
SUCCESSFULLY TOCLAIM RELIEF BASED ON JACKSON V. DENNO, EACH MUST
DEMONSTRATE GROSS ERROR ON THE PART OF COUNSEL WHEN HE RECOMMENDED THAT
THE DEFENDANT PLEAD GUILTY INSTEAD OF GOING TO TRIAL AND CHALLENGING
THE NEW YORK PROCEDURES FOR DETERMINING THE ADMISSIBILITY OF
CONFESSIONS.  SUCH SHOWING CANNOT BE MADE, FOR PRECISELY THIS CHALLENGE
WAS PRESENTED TO THE NEW YORK COURTS AND TO THIS COURT IN STEIN V. NEW
YORK, SUPRA, AND IN 1953 THIS COURT FOUND NO CONSTITUTIONAL INFIRMITY
IN THE NEW YORK PROCEDURES FOR DEALING WITH COERCED-CONFESSION CLAIMS. 
COUNSEL FOR THESE RESPONDENTS CANNOT BE FAULTED FOR NOT ANTICIPATING
JACKSON V. DENNO OR FOR CONSIDERING THE NEW YORK PROCEDURES TO BE AS
VALID AS THE FOUR DISSENTERS IN THAT CASE THOUGHT THEM TO BE. 

WE ARE UNIMPRESSED WITH THE ARGUMENT THAT BECAUSE THE DECISION IN
JACKSON HAS BEEN APPLIED RETROACTIVELY TO DEFENDANTS WHO HAD PREVIOUSLY
GONE TO TRIAL, THE DEFENDANT WHOSE CONFESSION ALLEGEDLY CAUSED HIM TO
PLEAD GUILTY PRIOR TO JACKSON IS ALSO ENTITLED TO A HEARING ON THE
VOLUNTARINESS OF HIS CONFESSION AND TO A TRIAL IF HIS ADMISSIONS ARE
HELD TO HAVE BEEN COERCED.  A CONVICTION AFTER TRIAL IN WHICH A COERCED
CONFESSION IS INTRODUCED RESTS IN PART ON THE COERCED CONFESSION, A
CONSTITUTIONALLY UNACCEPTABLE BASIS FOR CONVICTION.  IT IS THAT
CONVICTION AND THE CONFESSION ON WHICH IT RESTS THAT THE DEFENDANT
LATER ATTACKS IN COLLATERAL PROCEEDINGS.  THE DEFENDANT WHO PLEADS
GUILTY IS IN A DIFFERENT POSTURE.  HE IS CONVICTED ON HIS COUNSELED
ADMISSION IN OPEN COURT THAT HE COMMITTED THE CRIME CHARGED AGAINST
HIM.  THE PRIOR CONFESSION IS NOT THE BASIS FOR THE JUDGMENT, HAS NEVER
BEEN OFFERED IN EVIDENCE AT A TRIAL, AND MAY NEVER BE OFFERED IN
EVIDENCE.  WHETHER OR NOT THE ADVICE THE DEFENDANT RECEIVED IN THE PRE
JACKSON ERA WOULD HAVE BEEN DIFFICULT HAD JACKSON THEN BEEN THE LAW HAS
NO BEARING ON THE ACCURACY OF THE DEFENDANT'S ADMISSION THAT HE
COMMITTED THE CRIME. 

WHAT IS AT STAKE IN THIS PHASE OF THE CASE IS NOT THE INTEGRITY OF
THE STATE CONVICTIONS OBTAINED ON GUILTY PLEAS, BUT WHETHER, YEARS
LATER, DEFENDANTS MUST BE PERMITTED TO WITHDRAW THEIR PLEAS, WHICH WERE
PERFECTLY VALID WHEN MADE, AND BE GIVEN ANOTHER CHOICE BETWEEN
ADMITTING THEIR GUILT AND PUTTING THE STATE TO ITS PROOF.  IT MIGHT BE
SUGGESTED THAT IF JACKSON HAD BEEN THE LAW WHEN THE PLEAS IN THE CASES
BELOW WERE MADE-- IF THE JUDGE HAD BEEN REQUIRED TO RULE ON THE
VOLUNTARINESS OF CHALLENGED CONFESSIONS AT A TRIAL-- THERE WOULD HAVE
BEEN A BETTER CHANCE OF KEEPING THE CONFESSIONS FROM THE JURY AND THERE
WOULD HAVE BEEN NO GUILTY PLEAS.  BUT BECAUSE OF INHERENT UNCERTAINTY
IN GUILTY-PLEA ADVICE, THIS IS A HIGHLY SPECULATIVE MATTER IN ANY
PARTICULAR CASE AND NOT AN ISSUE PROMISING A MEANINGFUL AND PRODUCTIVE
EVIDENTIARY HEARING LONG AFTER ENTRY OF THE GUILTY PLEA.  THE
ALTERNATIVE WOULD BE A PER SE CONSTITUTIONAL RULE INVALIDATING ALL NEW
YORK GUILTY PLEAS THAT WERE MOTIVATED BY CONFESSIONS AND THAT WERE
ENTERED PRIOR TO JACKSON.  THIS WOULD BE AN IMPROVIDENT INVASION OF THE
STATE'S INTERESTS IN MAINTAINING THE FINALITY OF GUILTY-PLEA
CONVICTIONS THAT WERE VALID UNCER CONSTITUTIONAL STANDARDS APPLICABLE
AT THE TIME.  IT IS NO DENIGRATION OF THE RIGHT TO TRIAL TO HOLD THAT
WHEN THE DEFENDANT WAIVES HIS STATE COURT REMEDIES AND ADMITS HIS
GUILT, HE DOES SO UNDER THE LAW THEN EXISTING; FURTHER, HE ASSUMES THE
RISK OF ORDINARY ERROR IN EITHER HIS OR HIS ATTORNEY'S ASSESSMENT OF
THE LAW AND FACTS.  ALTHOUGH HE MIGHT HAVE PLEADED DIFFERENTLY HAD
LATER DECIDED CASES THEN BEEN THE LAW, HE IS BOUND BY HIS PLEA AND HIS
CONVICTION UNLESS HE CAN ALLEGE AND PROVE SERIOUS DERELICTIONS ON THE
PART OF COUNSEL SUFFICIENT TO SHOW THAT HIS PLEA WAS NOT, AFTER ALL, A
KNOWING AND INTELLIGENT ACT. 

       V 

AS WE HAVE PREVIOUSLY INDICATED, IN EACH CASE BELOW THE COURT OF
APPEALS RULED THAT A HEARING WAS REQUIRED TO CONSIDER CLAIMS OTHER THAN
THE CLAIM THAT THE PLEA OF GUILTY RESTED ON A COERCED CONFESSION AND
WAS ENTERED PRIOR TO JACKSON V. DENNO, SUPRA.  WITH RESPECT TO THESE
JUDGMENTS OF THE COURT OF APPEALS; BUT SINCE OUR HOLDING WILL REQUIRE
REASSESSMENT OF THE PETITIONER FOR HABEAS CORPUS IN THE LIGHT OF THE
STANDARDS EXPRESSED HEREIN, THE JUDGMENTS OF THE COURT OF APPEALS ARE
VACATED AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  OUR GRANT OF CERTIORARI ALSO INCLUDED A FOURTH RESPONDENT,
ANOTHER PETITIONER FOR HABEAS CORPUS, WILBERT ROSS.  SEE N. 7, INFRA. 
HOWEVER, UPON CONSIDERATION OF A SUBSEQUENT SUGGESTION OF MOOTNESS BY
REASON OF ROSS' DEATH, WE VACATED THE COURT OF APPEALS' JUDGMENT AND
REMANDED TO THE DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
WITH DIRECTIONS TO DISMISS THE PETITION FOR HABEAS CORPUS AS MOOT.  396
U.S. 118 (1969). 

/2/  N.Y. PENAL LAW, SEC. 2125, THEN IN EFFECT, PROVIDED THAT FIRST
DEGREE ROBBERY WAS PUNISHABLE BY IMPRISONMENT FOR AN INDETERMINATE TERM
THE MINIMUM OF WHICH WAS TO BE NOT LESS THAN 10 YEARS AND THE MAXIMUM
OF WHICH WAS NOT TO BE MORE THAN 30 YEARS.  UNDER N.Y. PENAL LAW SEC.
1941, SUBD. 1, THEN IN EFFECT, CONVICTION FOR A SECOND FELONY WAS
PUNISHABLE BY IMPRISONMENT FOR AN INDETERMINATE TERM WITH THE MINIMUM
ONE-HALF THE MAXIMUM SET FOR A FIRST CONVICTION AND THE MAXIMUM TWICE
THE MAXIMUM SET FOR A FIRST CONVICTION. 

IN ADDITION TO THE FIRST-DEGREE ROBBERY CHARGE, DASH WAS ALSO
CHARGED WITH GRAND LARCENY AND ASSAULT. 

/3/  WATERMAN AND DEVINE, TWO MEN ACCUSED OF TAKING PART IN THE
ROBBERY ALONG WITH DASH, DID NOT PLEAD GUILTY; AFTER A JURY TRIAL THEY
WERE CONVICTED OF FIRST-DEGREE ROBBERY, SECOND-DEGREE GRAND LARCENY,
AND SECOND-DEGREE ASSAULT AND WERE SENTENCED TO 15 TO 20 YEARS'
IMPRISONMENT.  ON APPEAL THESE CONVICTIONS WERE REVERSED BECAUSE OF THE
STATE'S USE OF POST-INDICTMENT CONFESSIONS GIVEN BY ONE OF THE
DEFENDANTS IN THE ABSENCE OF COUNSEL.  PEOPLE V. WATERMAN, 12
APP.DIV.2D 84, 208 N.Y.S.2D 596 (1960), AFF'D, 9 N.Y.2D 561, 175 N.E.2D
445 (1961).  WATERMAN AND DEVINE THEN PLEADED GUILTY TO ASSAULT IN THE
SECOND DEGREE AND WERE SENTENCED TO IMPRISONMENT FOR 2 1/2 TO 3 YEARS. 

/4/  THE DENIAL OF RELIEF WAS AFFIRMED BY THE APPELLATE DIVISION OF
THE NEW YORK SUPREME COURT, PEOPLE V. DASH, 21 APP.DIV.2D 978, 252
N.Y.S.2D 1016 (1964), AFF'D MEM., 16 N.Y.2D 493, 208 N.E.2D 171 (1965
). 

/5/  THE DENIAL OF RELIEF WAS AFFIRMED WITHOUT OPINION BY THE
APPELLATE DIVISION OF THE NEW YORK SUPREME COURT, PEOPLE V. RICHARDSON,
23 APP.DIV.2D 969, 260 N.Y.S.2D 586 (1965). 

/6/  THE DENIAL OF RELIEF ON THE CLAIMS LATER PRESENTED IN THE
FEDERAL DISTRICT COURT WAS AFFIRMED WITHOUT OPINION BY THE APPELLATE
DIVISION OF THE NEW YORK SUPREME COURT, PEOPLE V. WILLIAMS, 25
APP.DIV.2D 620, 268 N.Y.S.2D 958 (1966). 

/7/  UNITED STATES EX RE. ROSS V. MCMANN, 409 F.2D 1016 (C.A. 2D
CIR. 1969).  THE COURT OF APPEALS' OPINION DEALT ALSO WITH THE APPEAL
OF WILBERT ROSS FROM A DENIAL OF HABEAS CORPUS WITHOUT A HEARING BY THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK. 
ROSS IN HIS HABEAS CORPUS PETITION ALLEGED THAT HIS 1955 PLEA OF GUILTY
TO SECOND-DEGREE MURDER WAS INDUCED BY THE STATE'S POSSESSION OF AN
UNCONSTITUTIONALLY OBTAINED CONFESSION.  THE COURT OF APPEALS HELD
THAT, LIKE DASH, ROSS WAS ENTITLED TO A HEARING ON HIS CLAIMS.  ALONG
WITH THE THREE RESPONDENTS DEALT WITH IN THIS OPINION, WE GRANTED
CERTIORARI AS TO ROSS BUT THE MATTER WAS SUBSEQUENTLY REMANDED FOR
DISMISSAL AS MOOT AFTER THE DEATH OF ROSS.  SEE N. 1, SUPRA. 

/8/  UNITED STATES EX REL. RICHARDSON V. MCMANN, 408 F.2D 48 (C.A.
2D CIR. 1969); UNITED STATES EX REL. WILLIAMS V. FOLLETTE, 408 F.2D 658
(C.A. 2D CIR. 1969). 

/9/  THE SAME DAY THAT THE COURT OF APPEALS ORDERED HEARINGS IN THE
DASH AND RICHARDSON CASES, THE COURT, EN BANC AND WITHOUT DISSENT, HELD
THAT A HEARING WAS NOT REQUIRED IN THE CASE OF A PETITIONER FOR HABEAS
CORPUS WHO HAD PLEADED GUILTY AFTER A TRIAL JUDGE RULED THAT HIS
CONFESSION WAS ADMISSIBLE IN EVIDENCE-- THE COURT OF APPEALS FOUND THAT
THE PETITION FOR HABEAS CORPUS DID NOT ALLEGE WITH SUFFICIENT
SPECIFICITY THAT THE PLEA OF GUILTY WAS INFECTED BY THE ALLEGEDLY
COERCED CONFESSION.  UNITED STATES EX REL. ROSEN V. FOLLETTE, 409 F.2D
1042 (C.A. 2D CIR. 1969). 

/10/  THE MAJORITY AND CONCURRING OPINIONS IN THE DASH CASE RELIED
ON DECISIONS IN SEVERAL OTHER CIRCUITS:  UNITED STATES EX REL. COLLINS
V. MARONEY, 382 F.2D 547 (C.A. 3D CIR. 1967); JONES V. CUNNINGHAM, 297
F.2D 851 (C.A. 4TH CIR. 1962); SMITH V. WAINWRIGHT, 373 F.2D 506 (C.A.
5TH CIR. 1967); CARPENTER V. WAINWRIGHT, 372 F.2D 940 (C.A. 5TH CIR.
1967); BELL V. ALABAMA, 367 F.2D 243 (C.A. 5TH CIR. 1966), CERT.
DENIED, 386 U.S. 916 (1967); REED V. HENDERSON, 385 F.2D 995 (C.A. 6TH
CIR. 1967); SMILEY V. WILSON, 378 F.2D 144 (C.A. 0TH CIR. 1967); DORAN
V. WILSON, 360 F.2D 505 (C.A. 9TH CIR. 1966). 

/11/  NEW YORK LAW NOW PERMITS A DEFENDANT TO CHALLENGE THE
ADMISSIBILITY OF A CONFESSION IN A PRETRIAL HEARING AND TO APPEAL FROM
AN ADVERSE RULING ON THE ADMISSIBILITY OF THE CONFESSION EVEN IF THE
CONVICTION IS BASED ON A PLEA OF GUILTY.  N.Y. CODE CRIM. PROC. SEC.
813-G (SUPP. 1969) (EFFECTIVE JULY 16, 1965).  A SIMILAR PROVISION
PERMITS A DEFENDANT TO APPEAL AN ADVERSE RULING ON A FOURTH AMENDMENT
CLAIM AFTER A PLEA OF GUILTY.  N.Y. CODE CRIM. PROC. SEC. 813-C (SUPP.
1969) (EFFECTIVE APRIL 29, 1962).     /12/  PENNSYLVANIA EX REL. HERMAN
V. CLAUDY, 350 U.S. 116 (1956), INVOLVED A PLEA OF GUILTY MADE BY A
DEFENDANT WITHOUT ASSISTANCE OF COUNSEL.  HERMAN DID NOT HOLD THAT A
PLEA OF GUILTY, OFFERED BY A DEFENDANT ASSISTED BY COMPETENT COUNSEL,
IS INVALID WHENEVER INDUCED BY THE PROSECUTION'S POSSESSION OF A
COERCED CONFESSION.  LIKEWISE, CHAMBERS V. FLORIDA, 309 U.S. 227
(1940), DOES NOT SUPPORT THE POSITION TAKEN BY THE COURT OF APPEALS IN
THESE CASES.  IN CHAMBERS THE VOLUNTARINESS OF THE CONFESSIONS WAS
PROPERLY CONSIDERED BY THIS COURT BOTH BECAUSE THE ALLEGED COERCION
PRODUCING THE CONFESSIONS APPEARED TO CARRY OVER TO TAINT THE GUILTY
PLEAS AND BECAUSE THE CONVICTIONS WERE BASED ON THE CONFESSIONS AS WELL
AS THE GUILTY PLEAS.  SEE CHAMBERS V. STATE, 136 FLA. 568, 187 SO. 156
(1939), REV'D, 309 U.S. 227 (1940). 

/13/  WE DO NOT HERE CONSIDER WHETHER A CONVICTION, BASED ON A PLEA
OF GUILTY ENTERED IN A STATE PERMITTING THE DEFENDANT PLEADING GUILTY
TO CHALLENGE ON APPEAL THE ADMISSIBILITY OF HIS CONFESSION (AS IN NEW
YORK AFTER JULY 16, 1965, SEE N. 11, SUPRA), WOULD BE OPEN TO ATTACK IN
FEDERAL HABEAS CORPUS PROCEEDINGS ON THE GROUNDS THAT THE CONFESSION
WAS COERCED.  CF. UNITED STATES EX REL. ROGERS V. WARDEN, 381 F.2D 209
(C.A.2D CIR. 1967). 

/14/  SINCE GIDEON V. WAINWRIGHT, 372 U.S.335 (1963), IT HAS BEEN
CLEAR THAT A DEFENDANT PLEADING GUILTY TO A FELONY CHARGE HAS A FEDERAL
RIGHT TO THE ASSISTANCE OF COUNSEL.  SEE WHITE V. MARYLAND, 373 U.S.59
(1963); ARSENAULT V. MASSACHUSETTS, 393 U.S.5 (1968).  IT HAS LONG BEEN
RECOGNIZED THAT THE RIGHT TO COUNSEL IS THE RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.  SEE REECE V. GEORGIA, 350 U.S.85, 90 (1955);
GLASSER V. UNITED STATES, 315 U.S.60, 69-70 (1942); AVERY V. ALABAMA,
308 U.S.444, 446 (1940); POWELL V. ALABAMA, 287 U.S.45, 57 (1932). 

MR. JUSTICE BLACK, WHILE STILL ADHERING TO HIS SEPARATE OPINION IN
JACKSON V. DENNO, 378 U.S.368, 401-423, CONCURS IN THE COURT'S OPINION
AND JUDGMENT IN THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

IN THIS CASE THE COURT MOVES YET ANOTHER STEP TOWARD THE GOAL OF
INSULATING ALL GUILTY PLEAS FROM SUBSEQUENT ATTACK NO MATTER WHAT
UNCONSTITUTIONAL ACTION OF GOVERNMENT MAY HAVE INDUCED A PARTICULAR
PLEA.  RESPONDENTS ALLEGED IN SOME DETAIL THAT THEY WERE SUBJECTED TO
PHYSICAL AND MENTAL COERCION IN ORDER TO FORCE THEM TO CONFESS; THAT
THEY SUCCUMBED TO THESE PRESSURES; AND THAT BECAUSE NEW YORK PROVIDED
NO CONSTITUTIONALLY ACCEPTABLE PROCEDURES FOR CHALLENGING THE VALIDITY
OF THEIR CONFESSIONS IN THE TRIAL COURT THEY HAD NO REASONABLE
ALTERNATIVE TO PLEADING GUILTY.  /1/  RESPONDENTS' CONTENTION, IN
SHORT, IS THAT THEIR PLEAS WERE THE PRODUCT OF THE STATE'S ILLEGAL
ACTION.  NOTWITHSTANDING THE POSSIBLE TRUTH OF THE CLAIMS, THE COURT
HOLDS THAT RESPONDENTS ARE NOT EVEN ENTITLED TO A HEARING WHICH WOULD
AFFORD THEM AN OPPORTUNITY TO SUBSTANTIATE THEIR ALLEGATIONS.  I CANNOT
AGREE, FOR IT IS CLEAR THAT THE RESULT REACHED BY THE COURT IS
INCONSISTENT NOT ONLY WITH THE PRIOR DECISIONS OF THIS COURT BUT ALSO
WITH THE POSITION ADOPTED BY VIRTUALLY EVERY COURT OF APPEALS THAT HAS
SPOKEN ON THIS ISSUE.  /2/

        I 

THE BASIC PRINCIPLE APPLICABLE TO THIS CASE WAS ENUNCIATED FOR THE
COURT BY MR. JUSTICE BLACK IN PENNSYLVANIA EX REL. HERMAN V. CLAUDY,
350 U.S. 116, 118 (1956):  "A CONVICTION FOLLOWING TRIAL OR ON A PLEA
OF GUILTY BASED ON A CONFESSION EXTORTED BY VIOLENCE OR BY MENTAL
COERCION IS INVALID UNDER THE FEDERAL DUE PROCESS CLAUSE."  THE
CRITICAL FACTOR IN THIS FORMULATION IS THAT CONVICTIONS ENTERED ON
GUILTY PLEAS ARE NOT VALID IF THEY ARE "BASED ON" COERCED CONFESSIONS. 
A DEFENDANT WHO SEEKS TO OVERTURN HIS GUILTY PLEA MUST THEREFORE
DEMONSTRATE THE EXISTENCE OF A SUFFICIENT INTERRELATIONSHIP OR NEXUS
BETWEEN THE PLEA AND THE ANTECEDENT CONFESSION SO THAT THE PLEA MAY BE
SAID TO BE INFECTED BY THE STATE'S PRIOR ILLEGAL ACTION.  THUS TO
INVALIDATE A GUILTY PLEA MORE MUST BE SHOWN THAN THE MERE EXISTENCE OF
A COERCED CONFESSION.  THE COURT OF APPEALS SO HELD; RESPONDENTS DO NOT
DISAGREE.  THE CRITICAL QUESTION, THEN, IS WHAT ELEMENTS IN ADDITION TO
THE COERCED CONFESSION MUST BE ALLEGED AND PROVED TO DEMONSTRATE THE
INVALIDITY OF A GUILTY PLEA. 

THE COURT ABRUPTLY FORECLOSES ANY INQUIRY CONCERNING THE IMPACT OF
AN ALLEGEDLY COERCED CONFESSION BY DECREEING THAT THE ASSISTANCE OF
"REASONABLY COMPETENT" COUNSEL INSULATES A DEFENDANT FROM THE EFFECTS
OF A PRIOR ILLEGAL CONFESSION.  HOWEVER, AS THE COURT TACITLY CONCEDES,
THE ABSOLUTE RIGOR OF ITS NEW RULE MUST BE ADJUSTED TO ACCOMMODATE
CASES SUCH AS CHAMBERS V. FLORIDA, 309 U.S. 227 (1940).  IN THAT CASE,
THE FOUR DEFENDANTS CONFESSED.  SUBSEQUENTLY, THREE OF THEM PLEADED
GUILTY, WHILE THE FOURTH PLEADED NOT GUILTY AND WAS TRIED BEFORE A
JURY.  EACH OF THE DEFENDANTS, REPRESENTED BY COUNSEL, STATED DURING
THE TRIAL THAT HE HAD CONFESSED AND WAS TESTIFYING VOLUNTARILY.  /3/
NOTWITHSTANDING THIS TESTIMONY IN OPEN COURT, THE PROFFERING OF GUILTY
PLEAS, AND REPRESENTATION BY COUNSEL, THE STATE COURTS AND THIS COURT
AS WELL PROPERLY PERMITTED A COLLATERAL ATTACK UPON THE JUDGMENTS OF
CONVICTION ENTERED ON THE GUILTY PLEAS. 

IN EXPLICATION OF CHAMBERS, THE COURT NOTES THAT THE COERCIVE
CIRCUMSTANCES THAT COMPELLED THE CONFESSIONS MAY "HAVE ABIDING IMPACT
AND ALSO TAINT THE PLEA."  ANTE, AT 767.  APPARENTLY THE COURT WOULD
PERMIT A DEFENDANT WHO WAS REPRESENTED BY COUNSEL TO ATTACK HIS
CONVICTION COLLATERALLY IF HE COULD DEMONSTRATE THAT COERCIVE PRESSURES
WERE BROUGHT TO BEAR UPON HIM AT THE VERY MOMENT HE WAS CALLED TO
PLEAD.  THIS POSITION IS CERTAINLY UNEXCEPTIONABLE.  I CANNOT AGREE,
HOWEVER, THAT THE PLEADING PROCESS IS CONSTITUTIONALLY ADEQUATE DESPITE
A COERCED CONFESSION MERELY BECAUSE THE COERCIVE PRESSURES THAT
COMPELLED THE CONFESSION CEASED PRIOR TO THE ENTRY OF THE PLEA.  IN
SHORT, THE "ABIDING IMPACT" OF THE COERCED CONFESSION MAY CONTINUE TO
PREJUDICE A DEFENDANT'S CASE OR UNFAIRLY INFLUENCE HIS DECISIONS
REGARDING HIS LEGAL ALTERNATIVES. 

MOREOVER, OUR APPROACH IN PENNSYLVANIA EX REL. HERMAN V. CLAUDY, 350
U.S. 116 (1956), IS INCONSISTENT WITH THE ABSOLUTE RULE THAT THE COURT
ADOPTS TODAY.  WE THERE CONSIDERED WHETHER, UNDER ALL THE CIRCUMSTANCES
OF THE CASE, THE PRESSURES BROUGHT TO BEAR ON THE DEFENDANT BY THE
STATE, INCLUDING THE EXTRACTION OF A COERCED CONFESSION, WERE
SUFFICIENT TO RENDER HIS GUILTY PLEA INVOLUNTARY.  WHILE THE FACT THAT
THE DEFENDANT WAS NOT ASSISTED BY COUNSEL WAS GIVEN CONSIDERABLE WEIGHT
IN DETERMINING INVOLUNTARINESS, IT WAS HARDLY THE SOLE CRITICAL
CONSIDERATION.  THUS THE COURT'S ATTEMPT TO DISTINGUISH CLAUDY ON THE
BASIS OF COUNSEL'S ASSISTANCE ALONE IS UNPERSUASIVE.  I WOULD CONTINUE
TO ADHERE TO THE APPROACH ADOPTED IN CHAMBERS AND CLAUDY AND TAKE INTO
ACCOUNT ALL OF THE CIRCUMSTANCES SURROUNDING THE ENTRY OF A PLEA RATHER
THAN ATTACH TALISMANIC SIGNIFICANCE TO THE PRESENCE OF COUNSEL. 

I CONCLUDED IN PARKER V. NORTH CAROLINA AND BRADY V. UNITED STATES,
POST, AT 802, THAT "THE LEGAL CONCEPT OF 'INVOLUNTARINESS' HAS NOT BEEN
NARROWLY CONFINED BY REFERS TO A SURRENDER OF CONSTITUTIONAL RIGHTS
INFLUENCED BY CONSIDERATIONS THAT THE GOVERNMENT CANNOT PROPERLY
INTRODUCE" INTO THE PLEADING PROCESS.  IN PARKER AND BRADY THE
"IMPERMISSIBLE FACTOR" INTRODUCED BY THE GOVERNMENT WAS AN
UNCONSTITUTIONAL DEATH PENALTY SCHEME; HERE THE IMPROPER INFLUENCE IS A
COERCED CONFESSION.  IN EITHER EVENT THE DEFENDANT MUST ESTABLISH THAT
THE UNCONSTITUTIONAL INFLUENCE ACTUALLY INFECTED THE PLEADING PROCESS,
THAT IT WAS A SIGNIFICANT FACTOR IN HIS DECISION TO PLEAD GUILTY.  BUT
IF HE DOES SO, THEN HE IS ENTITLED TO REVERSAL OF THE JUDGMENT OF
CONVICTION ENTERED ON THE PLEA. 

HARRISON V. UNITED STATES, 392 U.S. 219 (1968), LENDS ADDITIONAL
SUPPORT TO THIS CONCLUSION.  THERE CONFESSIONS HAD BEEN ILLEGALLY
PROCURED FROM A DEFENDANT AND THEN INTRODUCED AT HIS TRIAL.  AT A NEW
TRIAL, AFTER REVERSAL OF THE DEFENDANT'S CONVICTION, HE OBJECTED TO THE
INTRODUCTION OF HIS TESTIMONY FROM THE PREVIOUS TRIAL ON THE GROUND
THAT HE HAD BEEN IMPROPERLY INDUCED TO TESTIFY AT THE FORMER TRIAL BY
THE INTRODUCTION OF THE INADMISSIBLE CONFESSIONS.  WE SUSTAINED THIS
CONTENTION, NOTING IN PART THAT 

"THE PETITIONER TESTIFIED ONLY AFTER THE GOVERNMENT HAD ILLEGALLY
INTRODUCED INTO EVIDENCE THREE CONFESSIONS, ALL WRONGFULLY OBTAINED,
AND THE SAME PRINCIPLE THAT PROHIBITS THE USE OF CONFESSIONS SO
PROCURED ALSO PROHIBITS THE USE OF ANY TESTIMONY IMPELLED THEREBY-- THE
FRUIT OF THE POISONOUS TREE, TO INVOKE A TIME-WORN METAPHOR.  FOR THE
'ESSENCE OF A PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE IN A
CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE USED
BEFORE THE COURT BUT THAT IT SHALL NOT BE USED AT ALL.'  SILVERTHORNE
LUMBER CO. V. UNITED STATES, 251 U.S. 385, 392. 

     " . . . THE QUESTION IS NOT WHETHER THE PETITIONER MADE A

  KNOWING DECISION TO TESTIFY, BUT WHY.  IF HE DID SO IN ORDER TO

  OVERCOME THE IMPACT OF CONFESSIONS ILLEGALLY OBTAINED AND HENCE

  IMPROPERLY INTRODUCED, THEN HIS TESTIMONY WAS TAINTED BY THE SAME

  ILLEGALITY THAT RENDERED THE CONFESSIONS THEMSELVES

  INADMISSIBLE."  392 U.S.,AT 222-223. 

THE SAME REASONING IS APPLICABLE HERE.  THAT IS, IF THE COERCED
CONFESSION INDUCES A GUILTY PLEA, THAT PLEA, NO LESS THAN THE SURRENDER
OF THE SELF-INCRIMINATION PRIVILEGE IN HARRISON, IS THE FRUIT OF THE
STATE'S PRIOR ILLEGAL CONDUCT, AND THUS IS VULNERABLE TO ATTACK.  /4/ 

AS IN PARKER AND BRADY THE COURT LAYS GREAT STRESS UPON THE ABILITY
OF COUNSEL TO OFFSET THE IMPROPER INFLUENCE INJECTED INTO THE PLEADING
PROCESS BY THE STATE'S UNCONSTITUTIONAL ACTION.  HOWEVER, HERE AGAIN,
THE CONCLUSIONS THAT THE COURT DRAWS FROM THE ROLE IT ASSIGNS TO
COUNSEL ARE, IN MY VIEW, ENTIRELY INCORRECT, FOR IT CANNOT BE BLANDLY
ASSUMED, WITHOUT FURTHER DISCUSSION, THAT COUNSEL WILL BE ABLE TO
RENDER EFFECTIVE ASSISTANCE TO THE DEFENDANT IN FREEING HIM FROM THE
BURDENS OF HIS UNCONSTITUTIONALLY EXTORTED CONFESSION. 

IN PARKER AND BRADY THERE WAS NO ACTION THAT COUNSEL COULD TAKE TO
REMOVE THE THREAT POSED BY THE UNCONSTITUTIONAL DEATH PENALTY SCHEME. 
THERE WAS NO WAY, IN SHORT, TO COUNTERACT THE INTRUSION OF AN
IMPERMISSIBLE FACTOR INTO THE PLEADING PROCESS. 

HOWEVER, WHERE THE UNCONSTITUTIONAL FACTOR IS A COERCED CONFESSION,
IT IS NOT NECESSARILY TRUE THAT COUNSEL'S ROLE IS SO LIMITED.  IT IS A
COMMON PRACTICE, FOR EXAMPLE, TO HOLD PRETRIAL HEARINGS OR DEVISE OTHER
PROCEDURES FOR THE PURPOSE OF PERMITTING DEFENDANTS AN OPPORTUNITY TO
CHALLENGE THE ADMISSIBILITY OF ALLEGEDLY COERCED CONFESSIONS.  IF IT IS
ASSUMED THAT THESE PROCEDURES PROVIDE A CONSTITUTIONALLY ADEQUATE MEANS
TO ATTACK THE VALIDITY OF THE CONFESSION, THEN IT MUST BE EXPECTED THAT
A DEFENDANT WHO SUBSEQUENTLY SEEKS TO OVERTURN HIS GUILTY PLEA WILL
COME FORWARD WITH A PERSUASIVE EXPLANATION FOR HIS FAILURE TO INVOKE
THOSE PROCEDURES WHICH WERE READILY AVAILABLE TO TEST THE VALIDITY OF
HIS CONFESSION. 

IT DOES NOT FOLLOW FROM THIS THAT A DEFENDANT ASSISTED BY COUNSEL CAN
NEVER DEMONSTRATE THAT THIS FAILURE TO INVOKE THE APPROPRIATE
PROCEDURES WAS JUSTIFIED.  THE ENTRY OF A GUILTY PLEA IS, ESSENTIALLY,
A WAIVER, OR THE "INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A KNOWN
RIGHT," JOHNSON V. ZERBST, 304 U.S. 458, 464 (1938).  BY PLEADING
GUILTY THE DEFENDANT GIVES UP NOT ONLY HIS RIGHT TO A JURY TRIAL,
BOYKIN V. ALABAMA, 395 U.S. 238 (1969), BUT ALSO, IN MOST
JURISDICTIONS, THE OPPORTUNITY TO CHALLENGE THE VALIDITY OF HIS
CONFESSION BY WHATEVER PROCEDURES ARE PROVIDED FOR THAT PURPOSE.  IT IS
ALWAYS OPEN TO A DEFENDANT TO ESTABLISH THAT HIS GUILTY PLEA WAS NOT A
CONSTITUTIONALLY VALID WAIVER, THAT HE DID NOT DELIBERATELY BYPASS THE
ORDERLY PROCESSES PROVIDED TO DETERMINE THE VALIDITY OF CONFESSIONS. 
CF. FAY V. NOIA, 372 U.S. 391, 438-440 (1962).  WHETHER OR NOT THERE
HAS BEEN A DELIBERATE BYPASS CAN BE DETERMINED, OF COURSE, ONLY BY A
CONSIDERATION OF THE TOTAL CIRCUMSTANCES SURROUNDING THE ENTRY OF EACH
PLEA.  /5/

        II 

IN THE FOREGOING DISCUSSION I HAVE ASSUMED THAT THE STATE HAS
PROVIDED A CONSTITUTIONALLY ADEQUATE METHOD TO CHALLENGE AN ALLEGEDLY
INVALID CONFESSION IN THE TRIAL COURT.  THAT ASSUMPTION IS NOT
APPLICABLE TO RESPONDENTS IN THIS CASE, HOWEVER, BECAUSE, AS WE HELD IN
JACKSON V. DENNO, 378 U.S. 368 (1964), THE PROCEDURE THAT NEW YORK
EMPLOYED AT THE TIME THEIR PLEAS WERE TENDERED FAILED TO PROVIDE A
CONSTITUTIONALLY ACCEPTABLE MEANS TO CHALLENGE THE VALIDITY OF
CONFESSIONS.  THUS, EVEN THE MOST EXPERT APPRAISAL AND ADVICE BY
COUNSEL NECESSARILY HAD TO TAKE INTO ACCOUNT A PROCEDURE FOR
CHALLENGING THE VALIDITY OF CONFESSIONS THAT WAS FUNDAMENTALLY
DEFECTIVE, BUT THAT HAD NEVERTHELESS BEEN APPROVED BY THIS COURT IN
STEIN V. NEW YORK, 346 U.S. 156 (1953).  HENCE THE ADVICE OF COUNSEL
COULD NOT REMEDY OR OFFSET THE CONSTITUTIONAL DEFECT INFUSED INTO THE
PLEADING PROCESS.  THEREFORE, RESPONDENTS ARE ENTITLED TO RELIEF IF
THEY CAN ESTABLISH THAT CONFESSIONS WERE COERCED FROM THEM AND THAT
THEIR GUILTY PLEAS WERE MOTIVATED IN SIGNIFICANT PART BY THEIR
INABILITY TO CHALLENGE THE VALIDITY OF THE CONFESSIONS IN A
CONSTITUTIONALLY ADEQUATE PROCEDURE.  /6/  BY SUCH A SHOWING THEY WOULD
ESTABLISH A NEXUS BETWEEN THE COERCED CONFESSIONS AND THE SUBSEQUENT
PLEAS AND THEREBY DEMONSTRATE THAT THEIR RESPECTIVE PLEAS WERE THE
PRODUCT OF THE STATE'S ILLEGAL ACTION. 

THE COURT SEEKS TO AVOID THE IMPACT OF JACKSON V. DENNO UPON PRE
JACKSON GUILTY PLEAS BY ADDING A NEW AND TOTALLY UNJUSTIFIED ELEMENT TO
THE COURT'S CONFUSED PATTERN OF RETROACTIVITY RULES.  JACKSON V. DENNO
HAS BEEN HELD TO BE RETROACTIVE, AT LEAST IN THE SENSE THAT IT REQUIRES
HEARINGS TO DETERMINE THE VOLUNTARINESS OF PRE-JACKSON CONFESSIONS THAT
WERE INTRODUCED AT TRIAL.  /7/  THE COURT TODAY DECIDES, HOWEVER, THAT
JACKSON'S EFFECT IS TO BE LIMITED TO SITUATIONS IN WHICH THE CONFESSION
WAS INTRODUCED AT TRIAL AND IS TO HAVE NO APPLICATION WHATEVER TO
GUILTY PLEAS.  IN SHORT, JACKSON V. DENNO IS NOW HELD TO BE ONLY
PARTIALLY RETROACTIVE, A WHOLLY NOVEL AND UNACCEPTABLE RESULT.     AS I
UNDERSTAND THE COURT'S OPINION, THERE ARE BASICALLY THREE REASONS WHY
THE COURT REJECTS THE CONTENTION THAT THE JACKSON-DENNO DEFECT MAY
UNCONSTITUTIONALLY INFECT THE PLEADING PROCESS.  THE FIRST IS THE
HIGHLY FORMALISTIC NOTION THAT THE GUILTY PLEA, AND NOT THE ANTECEDENT
CONFESSION, IS THE BASIS OF THEJUDGMENTS AGAINST RESPONDENTS.  OF
COURSE THIS IS TRUE IN THE TECHNICAL SENSE THAT THE GUILTY PLEA IS
ALWAYS THE LEGAL BASIS OF A JUDGMENT OF CONVICTION ENTERED THEREON. 
HOWEVER, THIS ARGUMENT HARDLY DISPOSES ADEQUATELY OF THE CONTENTION
THAT THE PLEA IN TURN WAS AT LEAST PARTIALLY INDUCED, AND THEREFORE IS
TAINTED, BY THE FACT THAT NO CONSTITUTIONALLY ADEQUATE PRECEDURES
EXISTED TO TEST THE VALIDITY OF A HIGHLY PREJUDICIAL AND ALLEGEDLY
COERCED CONFESSION. 

THE COURT'S FORMALISM IS SYMPTOMATIC OF THE DESIRE TO IGNORE
ENTIRELY THE MOTIVATIONAL ASPECT OF A DECISION TO PLEAD GUILTY.  AS
LONG AS COUNSEL IS PRESENT WHEN THE DEFENDANT PLEADS, THE COURT IS
APPARENTLY WILLING TO ASSUME THAT THE GOVERNMENT MAY INJECT VIRTUALLY
ANY INFLUENCE INTO THE PROCESS OF DECIDING ON A PLEA.  HOWEVER, AS I
DEMONSTRATED IN PARKER AND BRADY, THIS INSISTENCE UPON IGNORING THE
FACTORS WITH WHICH THE PROSECUTION CONFRONTS THE DEFENDANT BEFORE HE
PLEADS DEPARTS BROADLY FROM THE MANNER IN WHICH THE VOLUNTARINESS OF
GUILTY PLEAS HAS TRADITIONALLY BEEN APPROACHED.  IN SHORT, THE CRITICAL
QUESTION IS NOT, AS THE COURT INSISTS, WHETHER RESPONDENTS KNOWINGLY
DECIDED TO PLEAD GUILTY BUT WHY THEY MADE THAT DECISION.  CF. HARRISON
V. UNITED STATES, 392 U.S. 219, 223 (1968). 

SECONDLY, THE COURT VIEWS THE ENTRY OF THE GUILTY PLEAS AS WAIVERS
OF OBJECTIONS TO THE ALLEGEDLY COERCED CONFESSIONS.  FOR THE REASONS
PREVIOUSLY STATED, I DO NOT BELIEVE THAT THE PLEAS WERE LEGALLY
VOLUNTARY IF RESPONDENTS' ALLEGATIONS ARE PROVED.  NOR WERE THE PLEAS
THE RELINQUISHMENT OF A KNOWN RIGHT, FOR IT WAS ONLY WHEN STEIN V. NEW
YORK, 346 U.S. 156 (1953), WAS OVERRULED BY JACKSON V. DENNO THAT IT
BECAME CLEAR THAT THE NEW YORK PROCEDURE WAS CONSTITUTIONALLY
INADEQUATE.  THUS THERE IS NO SENSE IN WHICH RESPONDENTS DELIBERATELY
BY-PASSED OR "WAIVED" STATE PROCEDURES CONSTITUTIONALLY ADEQUATE TO
ADJUDICATE THEIR COERCED-CONFESSION CLAIMS.  SEE MORENO V. BETO, 425
F.2D 154 (C.A. 5TH CIR. 1969); CF. SMITH V. YEAGER, 393 U.S. 122
(1968). 

FINALLY, THE COURT TAKES THE POSITION, IN EFFECT, THAT THE DEFECT IN
THE STEIN-APPROVED NEW YORK PROCEDURE WAS NOT VERY GREAT-- THAT THE
PROCEDURE WAS ONLY A LITTLE BIT UNCONSTITUTIONAL-- AND HENCE THAT IT IS
TOO SPECULATIVE TO INQUIRE WHETHER THE DIFFERENCE BETWEEN THE PRE
JACKSON AND POST-JACKSON PROCEDURES WOULD, IN A PARTICULAR CASE, ALTER
THE ADVICE GIVEN BY COUNSEL CONCERNING THE DESIRABILITY OF A PLEA.  IF,
INDEED, THE DEFICIENCY IN THE PRE-JACKSON PROCEDURE WAS NOT VERY GREAT,
THEN IT IS DIFFICULT TO UNDERSTAND WHY WE FOUND IT NECESSARY TO
INVALIDATE THE PROCEDURE AND, PARTICULARLY, WHY IT WAS IMPERATIVE TO
APPLY THE JACKSON DECISION RETROACTIVELY.  I, FOR ONE, HAVE NEVER
THOUGHT JACKSON V. DENNO IS SO TRIVIAL, THAT IT DEALS WITH PROCEDURAL
DISTINCTIONS OF SUCH INSIGNIFICANCE THAT THEY WOULD NECESSARILY MAKE NO
DIFFERENCE IN THE PLEA ADVICE GIVEN TO A DEFENDANT BY HIS ATTORNEY.  TO
THE CONTRARY, THE EXTENT TO WHICH THE CONSTITUTIONAL DEFECT IN THE PRE
JACKSON-DENNO PROCEDURE ACTUALLY INFECTED THE PLEADING PROCESS CANNOT
BE DETERMINED BY A PRIORI PRONOUNCEMENTS BY THIS COURT; RATHER, ITS
EFFECT CAN BE EVALUATED ONLY AFTER A FACTUAL INQUIRY INTO THE
CIRCUMSTANCES MOTIVATING PARTICULAR PLEAS. 

DESPITE THE DISCLAIMERS TO THE CONTRARY, WHAT IS ESSENTIALLY
INVOLVED BOTH IN THE INSTANT CASE AND IN BRADY AND PARKER IS NOTHING
LESS THAN THE DETERMINATION OF THE COURT TO PRESERVE THE SANCTITY OF
VIRTUALLY ALL JUDGMENTS OBTAINED BY MEANS OF GUILTY PLEAS.  THERE IS NO
OTHER ADEQUATE EXPLANATION FOR THE SURPRISING NOTION OF PARTIAL
RETROACTIVITY THAT THE COURT TODAY PROPOUNDS.  AN APPROACH THAT SHRINKS
FROM GIVING EFFECT TO THE CLEAR IMPLICATIONS OF OUR PRIOR DECISIONS BY
DRAWING UNTENABLE DISTINCTIONS MAY HAVE ITS APPEAL, BUT IT HARDLY
FURTHERS THE GOAL OF PRINCIPLED DECISIONMAKING.  THUS, I AM CONSTRAINED
TO AGREE WITH THE CONCURRING JUDGE IN THE COURT OF APPEALS THAT IT IS 

"THE RANKEST UNFAIRNESS, AND INDEED A DENIGRATION OF THE RULE OF
LAW, TO RECOGNIZE THE INFIRMITY OF THE PRE-JACKSON V. DENNO PROCEDURE
FOR CHALLENGING THE LEGALITY OF A CONFESSION IN THE CASE OF PRISONERS
WHO WENT TO TRIAL BUT TO DENY ACCESS TO THE JUDICIAL PROCESS TO THOSE
WHO IMPROPERLY PLEADED GUILTY MERELY BECAUSE THE STATE WOULD HAVE MORE
DIFFICULTY IN AFFORDING A NEW TRIAL TO THEM"  409 F.2D,AT 1027. 

LEST IT BE THOUGHT THAT MY VIEWS WOULD RENDER THE CRIMINAL PROCESS
"LESS EFFECTIVE IN PROTECTING SOCIETY AGAINST THOSE WHO HAVE MADE IT
IMPOSSIBLE TO LIVE TODAY IN SAFETY," HARRISON V. UNITED STATES, 392
U.S. 219, 235 (WHITE, J., DISSENTING), I EMPHSIZE AGAIN THAT THE ONLY
ISSUE INVOLVED IN THIS CASE IS WHETHER RESPONDENTS ARE ENTITLED TO A
HEARING ON THEIR CLAIMS THAT COERCED CONFESSIONS AND A PROCEDURAL
DEVICE THAT WE CONDEMNED AS UNCONSTITUTIONAL DETERRED THEM FROM
EXERCISING THEIR CONSTITUTIONAL RIGHTS.  WHETHER OR NOT THESE
ALLEGATIONS HAVE BASES IN FACT IS NOT BEFORE US, FOR THESE INDIVIDUALS
HAVE NEVER BEEN AFFORDED A JUDICIAL FORUM FOR THE PRESENTATION OF THEIR
CLAIMS.  IN THESE CIRCUMSTANCES, I WOULD NOT SIMPLY SLAM SHUT THE DOOR
OF THE COURTHOUSE IN THEIR FACES. 

        III 

I AGREE WITH THE COURT OF APPEALS THAT A HEARING IS REQUIRED FOR THE
COERCED-CONFESSION CLAIMS PRESENTED IN THESE CASES.  WE HAVE, OF
COURSE, HELD THAT A POST-CONVICTION HEARING MUST BE AFFORDED TO
DEFENDANTS WHOSE ALLEGATIONS OF CONSTITUTIONAL DEPRIVATION RAISE
FACTUAL ISSUES AND ARE NEITHER "VAGUE, CONCLUSORY, OR PALPABLY
INCREDIBLE," MACHIBRODA V. UNITED STATES 368 U.S. 487, 495 (1962), NOR
"PATENTLY FRIVOLOUS OR FALSE," PENNSYLVANIA EX REL. HERMAN V. CLAUDY,
350 U.S. 116, 119 (1956).  /8/  RESPONDENTS HAVE RAISED AT LEAST THREE
FACTUAL ISSUES THAT THE RECORD IN ITS PRESENT FORM DOES NOT RESOLVE:
(1) WHETHER CONFESSIONS WERE OBTAINED FROM THEM; (2) WHETHER THESE
CONFESSIONS, IF GIVEN, WERE COERCED; AND (3) WHETHER RESPONDENTS HAD A
JUSTIFIABLE REASON FOR THEIR FAILURE TO CHALLENGE THE VALIDITY OF THE
CONFESSIONS-- MORE SPECIFICALLY, WHETHER THE CONFESSIONS, TOGETHER WITH
THE JACKSON-DENNO DEFECT IN NEW YORK'S PROCEDURES, INFLUENCED IN
SIGNIFICANT PART THE DECISIONS TO PLEAD GUILTY.  AS TO EACH OF THESE
ISSUES, RESPONDENTS OF COURSE BEAR THE BURDEN OF PROOF. 

RESPONDENTS ALLEGED IN SOME DETAIL THAT THEY HAD BEEN COERCED BY THE
POLICE INTO CONFESSING.  THEY ALSO ALLEGED THAT THE JACKSON-DENNO
DEFECT IN THE STATE PROCEDURES RENDERED FUTILE ANY ATTEMPT TO CHALLENGE
THE CONFESSIONS IN THE STATE TRIAL COURT.  /9/  THE COURT OF APPEALS
NOTED THAT, IN THE ORDINARY CASE, ADDITIONAL SUPPORTING MATERIAL, SUCH
AS AN AFFIDAVIT FROM THE ATTORNEY WHO REPRESENTED THE PETITIONER,
SHOULD BE APPENDED TO HIS HABEAS CORPUS PETITION.  WITHOUT ELABORATION,
HOWEVER, THE COURT OF APPEALS CONCLUDED THAT NO MATERIAL IN
CORROBORATION WAS NECESSARY IN THIS CASE. 

TO BE SURE, IT IS DIFFICULT, THOUGH NOT IMPOSSIBLE, TO BELIEVE THAT
WITHOUT ANY CORROBORATIVE EVIDENCE A PETITIONER WOULD ULTIMATELY
SUCCEED WITH A SOPHISTICATED ARGUMENT SUCH AS THE CONTENTION THAT A
COERCED CONFESSION, COUPLED WITH THE JACKSON-DENNO DEFECT, INDUCED HIS
GUILTY PLEA.  IN THIS CONNECTION, THE VIEWS OF THE DEFENSE ATTORNEY
WHEN THE PLEA WAS ENTERED ARE PARTICULARLY IMPORTANT BECAUSE IN THE
ORDINARY CASE COUNSEL IS IN A GOOD POSITION TO APPRAISE THE FACTORS
THAT ACTUALLY ENTERED INTO THE DECISION TO PLEAD GUILTY.  AS A
TECHNICAL MATTER OF PLEADING, HOWEVER, I WOULD NOT ABSOLUTELY REQUIRE
THAT A PETITIONER, PARTICULARLY ONE WHO IS PROCEEDING PRO SE, ACCOMPANY
HIS PETITION WITH EXTENSIVE SUPPORTING MATERIALS.  /10/  IT IS OF
COURSE PRUDENT FOR PETITIONERS WHO RAISE A CLAIM SUCH AS THE ONE
PRESENTED IN THE INSTANT CASE TO APPEND A STATEMENT FROM COUNSEL, OR AT
LEAST AN EXPLANATION OF WHY SUCH A STATEMENT WAS NOT PROCURED, FOR THE
PETITIONER WHO DOES NOT DO SO TAKES A CONSIDERABLE RISK THAT HIS
PETITION WILL BE DENIED AS VAGUE, CONCLUSORY, OR FRIVOLOUS.  /11/ 

THE RESPONDENTS IN THIS CASE CLEARLY RAISED THE JACKSON-DENNO ISSUE
IN THEIR PETITIONS TO THE DISTRICT COURT.  FURTHERMORE, THIS COURT HAS
NOT AFFECTED THE JUDGMENT BELOW INSOFAR AS IT REQUIRES HEARINGS FOR
THESE RESPONDENTS ON ISSUES OTHER THAN THEIR COERCED-CONFESSION
CLAIMS.  IN THESE CIRCUMSTANCES, I WOULD NOT DISTURB THAT PORTION OF
THE COURT OF APPEALS' ORDER THAT REQUIRES THE DISTRICT COURT TO
CONSIDER THE MERITS OF RESPONDENTS' COERCED-CONFESSION ALLEGATIONS. 

ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  THERE ARE ADDITIONAL ALLEGATIONS INVOLVED IN THIS CASE,
INCLUDING RICHARDSON'S CLAIM THAT HE WAS INEFFECTIVELY REPRESENTED BY
COUNSEL WHEN HE ENTERED HIS PLEA AND DASH'S CONTENTION THAT HE WAS
THREATENED BY THE TRIAL JUDGE WITH IMPOSITION OF THE STATUTORY MAXIMUM
SENTENCE (60 YEARS) IF HE ELECTED TO STAND TRIAL AND DID NOT PREVAIL. 
I UNDERSTAND THAT THE COURT DOES NOT DISTURB THE COURT OF APPEALS'
HOLDING THAT A HEARING IS REQUIRED TO CONSIDER THESE ADDITIONAL
ALLEGATIONS. 

/2/  THE COURT DOES NOT DENY THAT THE DECISION OF THE COURT OF
APPEALS IN THE INSTANT CASE IS IN COMPLETE HARMONY WITH THE DECISIONS
OF NUMEROUS OTHER COURTS THAT HAVE CONSIDERED THE SAME OR SIMILAR
ISSUES.  SEE, E.G., MORENO V. BETO, 415 F.2D 154 (C.A. 5TH CIR. 1969);
UNITED STATES EX REL. MCCLOUD V. RUNDLE, 402 F.2D 853 (C.A. 3D CIR.
1968); KOTT V. GREEN, 387 F.2D 136 (C.A. 6TH CIR. 1967); REED V.
HENDERSON, 385 F.2D 995 (C.A. 6TH CIR. 1967); UNITED STATES EX REL.
COLLINS V. MARONEY, 382 F.2D 547 (C.A. 3D CIR. 1967); SMILEY V. WILSON,
378 F.2D 144 (C.A. 9TH CIR. 1967); CARPENTER V. WAINWRIGHT, 372 F.2D
940 (C.A. 5TH CIR. 1967); DORAN V. WILSON, 369 F.2D 505 (C.A. 9TH CIR.
1966); WHITE V. PEPERSACK, 352 F.2D 470 (C.A. 4TH CIR. 1965); ZACHERY
V. HALE, 286 F.SUPP.  237 (D.C.M.D. ALA. 1968); UNITED STATES EX REL.
CUEVAS V. RUNDLE, 258 F.SUPP.  647 (D.C.E.D. PA. 1966); PEOPLE V.
SPENCER, 66 CAL.2D 158, 424 P.2D 715 (1967); COMMONWEALTH V. BAITY, 428
PA. 306, 237 A.2D 172 (1968). 

/3/  "EACH OF THE DEFENDANTS TESTIFIED ON THE TRIAL THAT THE
CONFESSIONS WERE FREELY AND VOLUNTARILY MADE AND THAT THE RESPECTIVE
STATEMENTS OF EACH MADE UPON THE TRIAL WAS THE FREE AND VOLUNTARY
STATEMENT OF SUCH DEFENDANT AS A WITNESS IN HIS BEHALF."  CHAMBERS V.
STATE, 113 FLA. 786, 792, 152 SO. 437, 438 (1934), ON SUBSEQUENT
APPEAL, 136 FLA. 568, 187 SO. 156 (1939), REV'D, 309 U.S. 227 (1940). 

/4/  INDEED, ONE OF THE DISSENTING OPINIONS IN HARRISON CONCLUDES
THAT "SIMILARLY, AN INADMISSIBLE CONFESSION PRECEDING A PLEA OF GUILTY
WOULD TAINT THE PLEA."  392 U.S.,AT 234 (WHITE, J., DISSENTING).  IN
RESPONSE TO THIS SUGGESTION, THE COURT NOTED THAT "WE DECIDE HERE ONLY
A CASE IN WHICH THE PROSECUTION ILLEGALLY INTRODUCED THE DEFENDANT'S
CONFESSION IN EVIDENCE AGAINST HIM AT TRIAL IN ITS CASE-IN-CHIEF."  392
U.S.,AT 223 N. 9.  OF COURSE, IN HARRISON WE DID CONSIDER A CASE IN
WHICH EVIDENCE HAD BEEN INTRODUCED AT TRIAL.  IT HARDLY FOLLOWS,
HOWEVER, THAT THE FRUIT-OF-THE-POISONOUS-TREE RATIONALE HAS NO
APPLICATION APART FROM THE NARROW CONFINES OF THE HARRISON FACTUAL
CONTEXT.  SEE GENERALLY FAHY V. CONNECTICUT, 375 U.S. 85 (1963); WONG
SUN V. UNITED STATES, 371 U.S. 471 (1963); NARDONE V. UNITED STATES,
308 U.S. 338 (1939). 

THERE ARE FACTUAL DIFFERENCES BETWEEN HARRISON AND THE INSTANT CASE,
BUT THEY ARE INSUFFICIENT TO UNDERMINE THE ANALOGY.  FOR EXAMPLE, IN
HARRISON THE INADMISSIBLE CONFESSIONS HAD ACTUALLY BEEN USED IN
PROCEEDINGS AGAINST THE DEFENDANT, WHEREAS HERE NO MORE IS INVOLVED
THAN THE POTENTIAL USE OF THE COERCED CONFESSIONS.  HOWEVER,
CONFESSIONS HAVE TRADITIONALLY BEEN CONSIDERED EXTREMELY VALUABLE
EVIDENTIARY MATERIAL, AND, IN THE ORDINARY COURSE OF EVENTS, IT IS NOT
TO BE EXPECTED THAT THE PROSECUTION WOULD, ON ITS OWN INITIATIVE,
REFRAIN FROM ATTEMPTING TO INTRODUCE A RELEVANT CONFESSION.  OF COURSE,
WHEN A GUILTY PLEA IS ATTACKED ON THE GROUND THAT IT WAS INDUCED BY AN
INVOLUNTARY CONFESSION, IT IS ALWAYS OPEN TO THE PROSECUTION TO
ESTABLISH THAT THERE WAS NO CONFESSION, THAT ANY CONFESSION WAS NOT
COERCED, OR THAT THE PROSECUTION HAD DECIDED NOT TO USE THE CONFESSION
AGAINST THE DEFENDANT AND HAD COMMUNICATED THIS FACT TO HIM. 

MOREOVER, IT IS PERHAPS NOT AS CLEAR IN THE INSTANT CASE AS IT WAS
IN HARRISON THAT THE PROSECUTION'S ILLEGALITY INFECTED THE SUBSEQUENT
PROCEEDINGS INVOLVING THE RESPECTIVE DEFENDANTS.  IN HARRISON, THE
DEFENSE ATTORNEY HAD INITIALLY ANNOUNCED THAT THE DEFENDANT WOULD NOT
TESTIFY, AND THE DEFENDANT DID IN FACT TAKE THE STAND ONLY AFTER THE
PROSECUTION HAD INTRODUCED HIS CONFESSIONS.  IN THAT CIRCUMSTANCE THE
BURDEN WAS APPROPRIATELY PLACED UPON THE PROSECUTION TO REBUT THE CLEAR
INFERENCE THAT THE INADMISSIBLE CONFESSIONS INDUCED THE SUBSEQUENT
TESTIMONY.  BY CONTRACT, IN THE INSTANT CASE WE ARE DEALING WITH GUILTY
PLEAS THAT ARE USUALLY THE CULMINATION OF A DECISION-MAKING PROCESS IN
WHICH THE DEFENDANT HAS TAKEN INTO ACCOUNT NUMEROUS FACTORS.  IT CAN
THEREFORE HARDLY BE ESTABLISHED ON THE BASIS OF MERE ALLEGATIONS THAT,
IN A GIVEN CASE, A COERCED CONFESSION INDUCED THE GUILTY PLEA.  THIS
FACTUAL DIFFERENCE INDICATES NO MORE, HOWEVER, THAN THAT THE
RESPONDENTS HERE MAY HAVE A MORE DIFFICULT TIME THAN THE PETITIONER IN
HARRISON IN SUBSTANTIATING THEIR RESPECTIVE CLAIMS.     /5/  IF THE
PROCEDURES FOR CHALLENGING THE VALIDITY OF CONFESSIONS ARE
CONSTITUTIONALLY ADEQUATE, THEN A PERSUASIVE JUSTIFICATION FOR THE
FAILURE TO INVOKE THEM DOES NOT ARISE FROM THE FEAR THAT A CONFESSION,
ERRONEOUSLY OR OTHERWISE, WILL BE DETERMINED TO BE VOLUNTARY.  IF THIS
WERE NOT TRUE, THEN NO GUILTY PLEA COULD CONSTITUTE AN EFFECTIVE
WAIVER, FOR THE RISK OF ERROR OR ADVERSE RESULT IS INHERENT IN EVERY
CRIMINAL PROCEEDING, AND IT WOULD BE OPEN TO EVERY DEFENDANT TO CONTEND
THAT THIS RISK INDUCED HIS GUILTY PLEA.     /6/  THE COURT OF APPEALS
HELD THAT A PLEA OF GUILTY WAS NOT VOLUNTARY "IF THE PLEA WAS
SUBSTANTIALLY MOTIVATED BY A COERCED CONFESSION THE VALIDITY OF WHICH
(THE DEFENDANT) WAS UNABLE, FOR ALL PRACTICAL PURPOSES, TO CONTEST." 
409 F.2D, AT 1023.  I WOULD ACCEPT THIS FORMULATION WITH THE
UNDERSTANDING THAT A "SUBSTANTIAL" MOTIVATING FACTOR IS ANY ONE WHICH
IS NOT MERELY DE MINIMIS.  ORDINARILY, A DECISION TO PLEAD GUILTY IS
THE RESULT OF NUMEROUS CONSIDERATIONS.  AS LONG AS A DEFENDANT WAS IN
FACT MOTIVATED IN SIGNIFICANT PART BY THE INFLUENCE OF AN
UNCONSTITUTIONALLY OBTAINED CONFESSION THAT HE HAD NO ADEQUATE MEANS TO
CHALLENGE, I WOULD RELIEVE HIM OF THE CONSEQUENCES OF HIS GUILTY PLEA. 

/7/  SEE, E.G., JOHNSON V. NEW JERSEY, 384 U.S. 719, 727-728 (1966);
TEHAN V. SHOTT, 382 U.S. 406, 416 (1966); LINKLETTER V. WALKER, 381
U.S. 618, 639 AND N. 20 (1965). 

/8/  RESPONDENTS HAVE NEVER HAD A HEARING IN THE STATE COURTS ON
THEIR COERCED-CONFESSION CLAIMS BECAUSE THE STATE COURTS REJECTED THEIR
CONTENTIONS ON THE PLEADINGS.  IN THESE CIRCUMSTANCES, THE COURT OF
APPEALS PROPERLY INSTRUCTED THE DISTRICT COURT TO AFFORD THE STATE A
REASONABLE TIME TO PROCEED WITH ITS OWN HEARINGS, IF IT BE SO ADVISED. 

/9/  FOR EXAMPLE, RESPONDENT DASH STATED THE FOLLOWING IN HIS
PETITION TO THE DISTRICT COURT: 

"THE FUTILITY OF RELATOR'S POSITION IS MORE CLEARLY SEEN WHEN THIS
COURT CONSIDERS THE FACT, THAT THE ONLY CHOICE REMAINING TO HIM--
BESIDE THE ENTRY OF THE PLEA OF GUILTY TO A CRIME THAT HE HAD NOT
COMMITTED-- WAS TO PROCEED TO TRIAL IN THE HOPE OF CHALLENGING THE
ADMISSIBILITY OF THE ALLEGED COERCED CONFESSION.  FOR IT WAS ONLY IN
THE CASE OF JACKSON V. DENNO . . . THAT THE COURT RECOGNIZED THE
INSOLUBLE PLIGHT OF A DEFENDANT IN NEW YORK, FACED WITH THE DECISION
WHETHER TO CHALLENGE THE ADMISSIBILITY OF A CONFESSION, HAD IN
VIOLATION OF THE UNITED STATES CONSTITUTION.  RELATOR HAD NO SUCH
REMEDY WHEN HE WAS FACED WITH THIS SITUATION." 

RESPONDENT WILLIAMS' PETITION CONTAINS SIMILAR REFERENCES TO JACKSON
V. DENNO.  RESPONDENT RICHARDSON'S PRINCIPAL CLAIM RELATES TO THE
ADEQUACY OF THE LEGAL ASSISTANCE AFFORDED HIM.  HE CONCEDES THAT THE
PRE-JACKSON-DENNO PROCEDURE PLAYED NO ROLE IN HIS DECISION TO PLEAD
GUILTY. 

/10/  SEE, E.G., PRICE V. JOHNSTON, 334 U.S. 266, 292 (1948). 

/11/  SEE, E.G., UNITED STATES EX REL. NIXON V. FOLLETTE, 299
F.SUPP.  253 (D.C.S.D.N.Y. 1969). 

BRENDA SOLOFF, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR PETITIONERS.  WITH HER ON THE BRIEFS WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL, AND LILLIAN Z. COHEN AND AMY JUVILER, ASSISTANT ATTORNEYS
GENERAL. 

GRETCHEN WHITE OBERMAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HER
ON THE BRIEF WERE GRACE L. BRODSKY AND KALMAN FINKEL. 

MICHAEL R. JUVILER, BY SPECIAL LEAVE OF COURT, ARGUED THE CAUSE FOR
THE DISTRICT ATTORNEY OF NEW YORK COUNTY AS AMICUS CURIAE URGING
REVERSAL.  WITH HIM ON THE BRIEF WERE FRANK S. HOGAN, PRO SE, AND
BENNETT L. GERSHMAN. 

MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION,
ET AL. AS AMICI CURIAE URGING AFFIRMANCE. 
..END :







PARKER V. NORTH CAROLINA, 397 U.S. 790 


       PARKER V. NORTH CAROLINA

        CERTIORARI TO THE COURT OF APPEALS OF NORTH CAROLINA

        NO. 268.  ARGUED NOVEMBER 17, 1969-- DECIDED MAY 4, 1970 


PETITIONER, A 15-YEAR-OLD NEGRO, WAS ARRESTED FOR BURGLARY AND RAPE,
AND LATER MADE A CONFESSION TO POLICE, WHICH HE ADVISED HIS RETAINED
COUNSEL HAD NOT BEEN PROMPTED BY THREATS, PROMISES, OR FEAR.  AFTER
BEING INDICTED FOR FIRST-DEGREE BURGLARY (A CAPITAL OFFENSE IN NORTH
CAROLINA), PETITIONER AND HIS MOTHER, AFTER CONSULTING COUNSEL,
AUTHORIZED THE ENTRY OF A GUILTY PLEA WITH THE UNDERSTANDING THAT ITS
ACCEPTANCE WOULD MANDATE A SENTENCE OF LIFE IMPRISONMENT.  THAT
SENTENCE WAS IMPOSED AFTER PETITIONER HAD ASSURED THE TRIAL JUDGE THAT
HIS PLEA WAS FREELY MADE.  THEREAFTER PETITIONER SOUGHT POST-CONVICTION
RELIEF, CLAIMING THAT HIS GUILTY PLEA WAS THE PRODUCT OF A COERCED
CONFESSION AND THAT THE INDICTMENT WAS INVALID BECAUSE NEGROES HAD BEEN
SYSTEMATICALLY EXCLUDED FROM THE GRAND JURY THAT RETURNED THE
INDICTMENT.  A STATE COURT, AFTER HEARING, DENIED POST-CONVICTION
RELIEF.  THE NORTH CAROLINA COURT OF APPEALS AFFIRMED, FINDING THAT
PETITIONER'S PLEA OF GUILTY WAS INTELLIGENT, AND REJECTING THE CLAIM,
ADDITIONALLY ASSERTED BY PETITIONER, THAT HIS GUILTY PLEA WAS
INVOLUNTARY BECAUSE NORTH CAROLINA STATUTES AT THAT TIME ALLOWED A
DEFENDANT TO ESCAPE THE POSSIBILITY OF A DEATH PENALTY ON A CAPITAL
CHARGE BY PLEADING GUILTY TO THAT CHARGE.  THE COURT REFUSED TO
CONSIDER PETITIONER'S CLAIM CONCERNING THE COMPOSITION OF THE GRAND
JURY SINCE PETITIONER HAD FAILED TO COMPLY WITH A STATE LAW REQUIRING
THAT SUCH A CONTENTION MUST, BEFORE ENTRY OF A GUILTY PLEA, BE RAISED
BY A MOTION TO QUASH THE INDICTMENT.  HELD: 

1.  ON THE BASIS OF THE RECORD IN THIS CASE, PETITIONER'S GUILTY
PLEA WAS VOLUNTARY.  PP. 794-795. 

(A) AN OTHERWISE VALID PLEA IS NOT INVOLUNTARY BECAUSE INDUCED BY A
DEFENDANT'S DESIRE TO LIMIT THE POSSIBLE MAXIMUM PENALTY TO LESS THAN
THAT AUTHORIZED IF THERE IS A JURY TRIAL.  BRADY V. UNITED STATES,
ANTE, P. 742.  PP. 794-795. 

(B) EVEN IF (DESPITE ABUNDANT EVIDENCE TO THE CONTRARY) PETITIONER'S
CONFESSION SHOULD HAVE BEEN FOUND INVOLUNTARY, THE CONNECTION BETWEEN
HIS CONFESSION AND THE GUILTY PLEA, ENTERED OVER A MONTH LATER, HAD
"BECOME SO ATTENUATED AS TO DISSIPATE THE TAINT."  PP. 795-796. 

2.  ON THE RECORD IN THIS CASE PETITIONER'S GUILTY PLEA WAS AN
INTELLIGENT PLEA NOT OPEN TO ATTACK ON THE GROUND THAT HIS COUNSEL
MISJUDGED THE ADMISSIBILITY OF PETITIONER'S CONFESSION.  MCMANN V.
RICHARDSON, ANTE, P. 759.  PP. 796-798. 

3.  NORTH CAROLINA PROCEDURAL LAW FURNISHED AN ADEQUATE BASIS FOR
THE REFUSAL OF THE COURT BELOW TO CONSIDER PETITIONER'S RACIAL
EXCLUSION CLAIM REGARDING THE COMPOSITION OF THE GRAND JURY THAT
INDICTED HIM.  PP. 798-799. 

2N.C.APP.  27, 162 S.E.2D 526, AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

AT ABOUT 11 P.M. ON JULY 16, 1964, PETITIONER WAS ARRESTED AFTER
ENTERING THE YARD OF A HOME WHERE A BURGLARY AND RAPE HAD BEEN
COMMITTED FOUR DAYS EARLIER.  PETITIONER, A NEGRO BOY THEN 15 YEARS
OLD, WAS TAKEN TO THE POLICE STATION AND WAS QUESTIONED FOR ONE OR TWO
HOURS.  AFTER THE QUESTIONING, PETITIONER WAS PLACED ALONE IN A DIMLY
LIT CELL FOR THE REMAINDER OF THE NIGHT.  ALTHOUGH PETITIONER REFUSED
TO GIVE EVEN HIS NAME DURING THE QUESTIONING, THE POLICE EVENTUALLY
DETERMINED HIS IDENTITY AND NOTIFIED PETITIONER'S MOTHER THE NEXT DAY
BETWEEN 3:30 AND 4:30 A.M.  THAT MORNING, PETITIONER WAS GIVEN DRINKING
WATER AND WAS THEN QUESTIONED BY THE POLICE; PETITIONER ALMOST
IMMEDIATELY CONFESSED TO THE BURGLARY AND RAPE COMMITTED SEVERAL DAYS
EARLIER AT THE HOUSE WHERE HE HAD BEEN ARRESTED.  SHORTLY THEREAFTER,
AN ATTORNEY RETAINED BY PETITIONER'S MOTHER CAME TO THE POLICE STATION
AND TALKED WITH PETITIONER.  PETITIONER TOLD THE ATTORNEY THAT THE
CONFESSION HAD NOT BEEN PROMPTED BY THREATS OR PROMISES AND THAT HE HAD
NOT BEEN FRIGHTENED WHEN HE MADE THE STATEMENT TO THE POLICE. 

PETITIONER WAS INDICTED FOR FIRST-DEGREE BURGLARY, AN OFFENSE
PUNISHABLE BY DEATH UNDER NORTH CAROLINA LAW.  /1/  PETITIONER'S
RETAINED ATTORNEY DISCUSSED WITH PETITIONER AND HIS MOTHER THE NATURE
AND SERIOUSNESS OF THE CHARGE.  IN DUE COURSE, PETITIONER AND HIS
MOTHER SIGNED WRITTEN STATEMENTS AUTHORIZING THE ENTRY OF A PLEA OF
GUILTY.  BOTH PETITIONER AND HIS MOTHER WERE AWARE AT THE TIME THEY
SIGNED THE AUTHORIZATION FOR THE GUILTY PLEA THAT, IF THE PLEA WAS
ACCEPTED, PETITIONER WOULD RECEIVE THE MANDATORY SENTENCE OF LIFE
IMPRISONMENT.  /2/  THE PROSECUTOR AND THE TRIAL JUDGE ACCEPTED THE
PLEA.  IN ACCEPTING THE PLEA ON AUGUST 18, 1964, THE TRIAL COURT ASKED
THE PETITIONER IF THE PLEA WAS MADE IN RESPONSE TO ANY PROMISE OR
THREAT AND PETITIONER ANSWERED IN THE NEGATIVE; PETITIONER AFFIRMED
THAT HE TENDERED THE PLEA "FREELY WITHOUT ANY FEAR OR COMPULSION."  /3/
UPON ACCEPTANCE OF THE PLEA, PETITIONER WAS SENTENCED TO LIFE
IMPRISONMENT. 

IN 1967, PETITIONER, ASSISTED BY COUNSEL, FILED A PETITION UNDER THE
NORTH CAROLINA POST-CONVICTION HEARING ACT /4/  TO OBTAIN RELIEF FROM
HIS CONVICTION.  IN HIS PETITION, PARKER URGED THAT HIS PLEA OF GUILTY
WAS THE PRODUCT OF A COERCED CONFESSION AND THAT THE INDICTMENT TO
WHICH HE PLEADED WAS INVALID BECAUSE MEMBERS OF HIS RACE HAD BEEN
SYSTEMATICALLY EXCLUDED FROM THE GRAND JURY WHICH RETURNED THE
INDICTMENT.  AFTER A HEARING, THE SUPERIOR COURT OF HALIFAX COUNTY
FOUND THAT THERE WAS NO DELIBERATE EXCLUSION OF NEGROES FROM THE GRAND
JURY THAT INDICTED PETITIONER AND THAT PETITIONER HAD FREELY ADMITTED
HIS GUILT AND HAD PLEADED GUILTY "FREELY, VOLUNTARILY, WITHOUT THREAT,
COERCION, OR DURESS . . . . "  THE COURT OF APPEALS OF NORTH CAROLINA,
THE HIGHEST STATE COURT IN WHICH PETITIONER COULD SEEK REVIEW, /5/
AFFIRMED THE CONVICTION AFTER REVIEWING NOT ONLY THE CLAIMS PRESENTED
TO THE LOWER COURT BUT ALSO THE ADDITIONAL ASSERTION BY PETITIONER THAT
HIS GUILTY PLEA WAS INVOLUNTARY BECAUSE NORTH CAROLINA STATUTES AT THAT
TIME ALLOWED A DEFENDANT TO ESCAPE THE POSSIBILITY OF A DEATH PENALTY
ON A CAPITAL CHARGE BY PLEADING GUILTY TO THAT CHARGE.  2 N.C.APP.  27,
162 S.E.2D 526 (1968).  WE GRANTED CERTIORARI, 395 U.S. 974 (1969), TO
CONSIDER PETITIONER'S FEDERAL CONSTITUTIONAL CLAIMS.  FOR THE REASONS
PRESENTED BELOW, WE AFFIRM. 

        I 

PARKER WOULD HAVE US HOLD HIS GUILTY PLEA INVOLUNTARY AND THEREFORE
INVALID FOR TWO REASONS:  FIRST, BECAUSE IT WAS INDUCED BY A NORTH
CAROLINA STATUTE PROVIDING A MAXIMUM PENALTY IN THE EVENT OF A PLEA OF
GUILTY LOWER THAN THE PENALTY AUTHORIZED AFTER A VERDICT OF GUILTY BY A
JURY; AND, SECOND, BECAUSE THE PLEA WAS THE PRODUCT OF A COERCED
CONFESSION GIVEN TO THE POLICE SHORTLY AFTER PETITIONER WAS ARRESTED. 
NEITHER REASON IS SUFFICIENT TO WARRANT SETTING ASIDE PARKER'S PLEA. 

IT MAY BE THAT UNDER UNITED STATES V. JACKSON, 390 U.S. 570 (1968),
IT WAS UNCONSTITUTIONAL TO IMPOSE THE DEATH PENALTY UNDER THE STATUTORY
FRAMEWORK WHICH EXISTED IN NORTH CAROLINA AT THE TIME OF PARKER'S
PLEA.  /6/  EVEN SO, WE DETERMINED IN BRADY V. UNITED STATES, ANTE, P.
742, THAT AN OTHERWISE VALID PLEA IS NOT INVOLUNTARY BECAUSE INDUCED BY
THE DEFENDANT'S DESIRE TO LIMIT THE POSSIBLE MAXIMUM PENALTY TO LESS
THAN THAT AUTHORIZED IF THERE IS A JURY TRIAL.  IN THIS RESPECT WE SEE
NOTHING TO DISTINGUISH PARKER'S CASE FROM BRADY'S. 

NOR CAN WE ACCEPT THE CLAIM THAT THE PLEA WAS INFIRM BECAUSE IT WAS
THE PRODUCT OF A COERCED CONFESSION.  ACCORDING TO PARKER'S TESTIMONY
AT THE POST-CONVICTION HEARING, HE WAS DENIED FOOD AND WATER, PROMISED
UNSPECIFIED HELP IF HE CONFESSED, AND DENIED COUNSEL'S ADVICE WHEN HE
REQUESTED IT.  IN THE RECORD, HOWEVER, WAS AN ABUNDANCE OF EVIDENCE
CONTRADICTING PARKER'S CLAIM OF COERCION:  PARKER'S STATEMENTS TO HIS
ATTORNEY SOON AFTER HIS INTERROGATION THAT THERE HAD BEEN SO THREATS OR
PROMISES AND THAT HE HAD NOT BEEN AFRAID, HIS SIMILAR DECLARATIONS IN
HIS SWORN STATEMENT AUTHORIZING HIS PLEA, /7/  HIS ANSWERS TO THE TRIAL
JUDGE AT THE TIME THE PLEA WAS ACCEPTED, /8/  AND HIS FAILURE TO
COMPLAIN OF ANY MISTREATMENT BY THE POLICE UNTIL MANY MONTHS AFTER HE
BEGAN SERVING HIS SENTENCE.  THE NORTH CAROLINA COURTS ACCORDINGLY
REFUSED TO CREDIT HIS TESTIMONY AND CONCLUDED THAT HIS CONFESSION WAS A
FREE AND VOLUNTARY ACT. 

WE WOULD IN ANY EVENT BE RELUCTANT TO QUESTION THE JUDGMENT OF THE
STATE COURTS IN THIS RESPECT; BUT WE NEED NOT EVALUATE THE
VOLUNTARINESS OF PETITIONER'S CONFESSION SINCE EVEN IF THE CONFESSION
SHOULD HAVE BEEN FOUND INVOLUNTARY, WE CANNOT BELIEVE THAT THE ALLEGED
CONDUCT OF THE POLICE DURING THE INTERROGATION PERIOD WAS OF SUCH A
NATURE OR HAD SUCH ENDURING EFFECT AS TO MAKE INVOLUNTARY A PLEA OF
GUILTY ENTERED OVER A MONTH LATER.  PARKER SOON HAD FOOD AND WATER, THE
LACK OF COUNSEL WAS IMMEDIATELY REMEDIED, AND THERE WAS AMPLE
OPPORTUNITY TO CONSIDER THE SIGNIFICANCE OF THE ALLEGED PROMISES. 
AFTER THE ALLEGEDLY COERCIVE INTERROGATION, THERE WERE NO THREATS,
MISREPRESENTATIONS, PROMISES, OR OTHER IMPROPER ACTS BY THE STATE. 
PARKER HAD THE ADVICE OF RETAINED COUNSEL AND OF HIS FAMILY FOR THE
MONTH BEFORE HE PLEADED.  THE CONNECTION, IF ANY, BETWEEN PARKER'S
CONFESSION AND HIS PLEA OF GUILTY HAD "BECOME SO ATTENUATED AS TO
DISSIPATE THE TAINE."  NARDONE V. UNITED STATES, 308 U.S. 338, 341
(1939); WONG SUN V. UNITED STATES, 371 U.S. 471, 491 (1963).  AS FAR AS
THIS RECORD REVEALS, THE GUILTY PLEA WAS PARKER'S FREE AND VOLUNTARY
ACT, THE PRODUCT OF HIS OWN CHOICE, JUST AS HE AFFIRMED IT WAS WHEN THE
PLEA WAS ENTERED IN OPEN COURT. 

        II 

ON THE ASSUMPTION THAT PARKER'S CONFESSION WAS INADMISSIBLE, THERE
REMAINS THE QUESTION WHETHER HIS PLEA, EVEN IF VOLUNTARY, WAS
UNINTELLIGENTLY MADE BECAUSE HIS COUNSEL MISTAKENLY THOUGHT HIS
CONFESSION WAS ADMISSIBLE.  AS WE UNDERSTAND IT, PARKER'S POSITION
NECESSARILY IMPLIES THAT HIS DECISION TO PLEAD RESTED ON THE STRENGTH
OF THE CASE AGAINST HIM:  ABSENT THE CONFESSION, HIS CHANCES OF
ACQUITTAL WERE GOOD AND HE WOULD HAVE CHOSEN TO STAND TRIAL; BUT GIVEN
THE CONFESSION, THE EVIDENCE WAS TOO STRONG AND IT WAS TO HIS ADVANTAGE
TO PLEAD GUILTY AND LIMIT THE POSSIBILE PENALTY TO LIFE IMPRISONMENT. 
/9/  ON THIS ASSUMPTION, HAD PARKER AND HIS COUNSEL THOUGHT THE
CONFESSION INADMISSIBLE, THERE WOULD HAVE BEEN A PLEA OF NOT GUILTY AND
A TRIAL TO A JURY.  BUT COUNSEL APPARENTLY DEEMED THE CONFESSION
ADMISSIBLE AND HIS ADVICE TO PLEAD GUILTY WAS FOLLOWED BY HIS CLIENT. 
PARKER NOW CONSIDERS HIS CONFESSION INVOLUNTARY AND INADMISSIBLE.  THE
IMPORT OF THIS CLAIM IS THAT HE SUFFERED FROM BAD ADVICE AND THAT HAD
HE BEEN CORRECTLY COUNSELED HE WOULD HAVE GONE TO TRIAL RATHER THAN TO
ENTER A GUILTY PLEA.  HE SUGGESTS THAT HE IS ENTITLED TO PLEAD AGAIN, A
SUGGESTION THAT WE REJECT. 

FOR THE REASONS SET OUT IN MCMANN V. RICHARDSON, ANTE, P. 759, EVEN
IF PARKER'S COUNSEL WAS WRONG IN HIS ASSESSMENT OF PARKER'S CONFESSION,
IT DOES NOT FOLLOW THAT HIS ERROR WAS SUFFICIENT TO RENDER THE PLEA
UNINTELLIGENT AND ENTITLE PARKER TO DISAVOW HIS ADMISSION IN OPEN COURT
THAT HE COMMITTED THE OFFENSE WITH WHICH HE WAS CHARGED.  /10/  BASED
ON THE FACTS OF RECORD RELATING TO PARKER'S CONFESSION AND GUILTY PLEA,
WHICH WE HAVE PREVIOUSLY DETAILED, WE THINK THE ADVICE HE RECEIVED WAS
WELL WITHIN THE RANGE OF COMPETENCE REQUIRED OF ATTORNEYS REPRESENTING
DEFENDANTS IN CRIMINAL CASES.  PARKER'S PLEA OF GUILTY WAS AN
INTELLIGENT PLEA NOT OPEN TO ATTACK ON THE GROUNDS THAT COUNSEL
MISJUDGED THE ADMISSIBILITY OF PARKER'S CONFESSION. 

        III 

WE ALSO HAVE BEFORE US THE QUESTION WHETHER THE INDICTMENT TO WHICH
PARKER PLEADED IS INVALID BECAUSE MEMBERS OF HIS RACE WERE ALLEGEDLY
SYSTEMATICALLY EXCLUDED FROM THE GRAND JURY THAT RETURNED THE
INDICTMENT.  THE NORTH CAROLINA COURT OF APPEALS REFUSED TO CONSIDER
THE CLAIM SINCE UNDER NORTH CAROLINA LAW AN OBJECTION TO THE
COMPOSITION OF THE GRAND JURY MUST BE RAISED BY MOTION TO QUASH THE
INDICTMENT PRIOR TO THE ENTRY OF THE GUILTY PLEA.  /11/  BECAUSE PARKER
HAD FAILED TO RAISE HIS OBJECTION IN TIMELY FASHION, RELIEF WAS
UNAVAILABLE.  THIS STATE RULE OF PRACTICE WOULD CONSTITUTE AN ADEQUATE
STATE GROUND PRECLUDING OUR REACHING THE GRAND JURY ISSUE IF THIS CASE
WERE HERE ON DIRECT REVIEW.  SEE FAY V. NOIA, 372 U.S. 391, 428-429
(1963).  WE ARE UNDER SIMILAR CONSTRAINT WHEN ASKED TO REVIEW A STATE
COURT DECISION HOLDING THAT THE SAME RULE OF PRACTICE REQUIRES DENIAL
OF COLLATERAL RELIEF.  IBID.  WHETHER THE QUESTION OF RACIAL EXCLUSION
IN THE SELECTION OF THE GRAND JURY IS OPEN IN A FEDERAL HABEAS CORPUS
ACTION WE NEED NOT DECIDE.  COMPARE UNITED STATES EX REL. GOLDSBY V.
HARPOLE, 263 F.2D 71 (C.A. 5TH CIR.), CERT. DENIED, 361 U.S. 838 AND
850 (1959), WITH LABAT V. BENNETT, 365 F.2D 698 (C.A. 5TH CIR. 1966),
CERT. DENIED 386 U.S. 991 (1967).  SEE ALSO MCNEIL V. NORTH CAROLINA,
368 F.2D 313 (C.A. 4TH CIR. 1966). 

THE NORTH CAROLINA COURT OF APPEALS CORRECTLY CONCLUDED THAT
PETITIONER'S PLEA OF GUILTY WAS INTELLIGENT AND VOLUNTARY, AND THERE
WAS AN ADEQUATE BASIS IN NORTH CAROLINA PROCEDURAL LAW FOR THE NORTH
CAROLINA COURT OF APPEALS' REFUSAL TO CONSIDER THE CLAIM OF RACIAL
EXCLUSION IN THE COMPOSITION OF THE GRAND JURY THAT INDICTED
PETITIONER. 

              AFFIRMED. 

/1/  IN NORTH CAROLINA THE CRIME OF FIRST-DEGREE BURGLARY IS DEFINED
AS FOLLOWS: 

"THERE SHALL BE TWO DEGREES IN THE CRIME OF BURGLARY AS DEFINED AT
THE COMMON LAW.  IF THE CRIME BE COMMITTED IN A DWELLING HOUSE, OR IN A
ROOM USED AS A SLEEPING APARTMENT IN ANY BUILDING, AND ANY PERSON IS IN
THE ACTUAL OCCUPATION OF ANY PART OF SAID DWELLING HOUSE OR SLEEPING
APARTMENT AT THE TIME OF THE COMMISSION OF SUCH CRIME, IT SHALL BE
BURGLARY IN THE FIRST DEGREE."  N.C. GEN. STAT. SEC. 14-51 (1969 REPL. 
VOL.). 

THE PUNISHMENT FOR FIRST-DEGREE BURGLARY IS DEATH UNLESS THE JURY
RECOMMENDS THAT THE PENALTY BE LIFE IMPRISONMENT: 

"ANY PERSON CONVICTED, ACCORDING TO DUE COURSE OF LAW, OF THE CRIME
OF BURGLARY IN THE FIRST DEGREE SHALL SUFFER DEATH:  PROVIDED, IF THE
JURY WHEN RENDERING ITS VERDICT IN OPEN COURT SHALL SO RECOMMEND, THE
PUNISHMENT SHALL BE IMPRISONMENT FOR LIFE IN THE STATE'S PRISON, AND
THE COURT SHALL SO INSTRUCT THE JURY."  N.C. GEN. STAT. SEC. 14-52
(1969 REPL.  VOL.). 

/2/  AT THE TIME PETITIONER'S PLEA WAS ENTERED, NORTH CAROLINA LAW
PROVIDED THAT IF A PLEA OF GUILTY TO FIRST-DEGREE BURGLARY WAS ACCEPTED
THE PUNISHMENT WOULD BE LIFE IMPRISONMENT RATHER THAN DEATH: 

"(A) ANY PERSON, WHEN CHARGED IN A BILL INDICTMENT WITH THE FELONY
OF MURDER IN THE FIRST DEGREE, OR BURGLARY IN THE FIRST DEGREE, OR
ARSON, OR RAPE, WHEN REPRESENTED BY COUNSEL, WHETHER EMPLOYED BY THE
DEFENDANT OR APPOINTED BY THE COURT . . . , MAY, AFTER ARRAINGMENT,
TENDER IN WRITING, SIGNED BY SUCH PERSON AND HIS COUNSEL, A PLEA OF
GUILTY OF SUCH CRIME; AND THE STATE, WITH THE APPROVAL OF THE COURT,
MAY ACCEPT SUCH PLEA.  UPON REJECTION OF SUCH PLEA, THE TRIAL SHALL BE
UPON THE DEFENDANT'S PLEA OF NOT GUILTY, AND SUCH TENDER SHALL HAVE NO
LEGAL SIGNIFICANCE WHATEVER. 

"(B) IN THE EVENT SUCH PLEA IS ACCEPTED, THE TENDER AND ACCEPTANCE
THEREOF SHALL HAVE THE EFFECT OF A JURY VERDICT OF GUILTY OF THE CRIME
CHARGED WITH RECOMMENDATION BY THE JURY IN OPEN COURT THAT THE
PUNISHMENT SHALL BE IMPRISONMENT FOR LIFE IN THE STATE'S PRISON; AND
THEREUPON, THE COURT SHALL PRONOUNCE JUDGMENT THAT THE DEFENDANT BE
IMPRISONED FOR LIFE IN THE STATE'S PRISON."  N.C. GEN. STAT. SEC. 15
162.1 (1965 REPL.  VOL.), REPEALED, EFFECTIVE MARCH 25, 1969, N.C. LAWS
1969, C. 117. 

/3/  THE COURT:  "HAS ANYBODY MADE YOU ANY PROMISE OR FORCED YOU IN
ANY WAY TO MAKE THIS PLEA?" 

PETITIONER:  "NO, SIR." 

        .          .          .          . 

THE COURT:  "DID YOU SIGN THIS PLEA FREELY WITHOUT ANY FEAR OR
COMPULSION?" 

PETITIONER:  "YES, SIR." 

THE COURT:  "HAS ANY PERSON PROMISED YOU ANYTHING IF YOU DO THIS?" 

PETITIONER:  "NO, SIR."  APP. 46.     /4/  N.C. GEN. STAT. SECS. 15
217 TO 15-222 (SUPP. 1969). 

/5/  N.C. GEN. STAT. SEC. 7A-28 (1969 REPL.  VOL.). 

/6/  THE STATUTE AUTHORIZING GUILTY PLEAS TO CAPITAL CHARGES WAS
REPEALED, EFFECTIVE MARCH 25, 1969.  SEE N. 2, SUPRA.  AS A RESULT OF
THE REPEAL, A PERSON WHO IS CHARGED WITH A CAPITAL OFFENSE AND WHO IS
NOT ALLOWED TO PLEAD TO A LESSER CHARGE MUST APPARENTLY FACE A JURY
TRIAL AND A DEATH PENALTY UPON A VERDICT OF GUILTY UNLESS THE JURY
RECOMMENDS LIFE IMPRISONMENT. 

/7/  IN HIS AFFIDAVIT AUTHORIZING THE ENTRY OF A PLEA OF GUILTY
PARKER STATED THAT:  "I HAVE NOT BEEN THREATENED OR ABUSED IN ANY
MANNER BY ANY PERSON AND NO PROMISES HAVE BEEN MADE TO ME IF I PLEAD
GUILTY TO ANY CHARGE." 

/8/  SEE N. 3, SUPRA. 

/9/  THE NORTH CAROLINA COURT OF APPEALS NOTED THAT THE PROSECUTION
MAY HAVE HAD STRONG EVIDENCE AGAINST PARKER IN ADDITION TO THE
CONFESSION AND THAT IF OTHER STRONG EVIDENCE EXISTED THE GUILTY PLEA
COULD NOT BE VIEWED AS THE PRODUCT OF THE CONFESSION.  2 N.C.APP.  27,
32, 162 F.2D 526, 529 (1968). 

/10/  WE FIND NOTHING IN THE RECORD RAISING ANY DOUBTS ABOUT THE
INTEGRITY OF PETITIONER'S ADMISSION.  THE FOLLOWING APPEARS IN THE
FINDINGS ENTERED AFTER THE POST-CONVICTION HEARING IN THE STATE TRIAL
COURT: 

(S) PETITIONER DEFENDANT FREELY ADMITTED TO HIS ATTORNEY HIS GUILT
OF THE CRIME WITH WHICH HE WAS CHARGED, IN FACT SAID PETITIONER
DEFENDANT CHARLES LEE PARKER, UPON CROSS EXAMINATION AT THIS HEARING,
AND THE COURT SO FINDS AS A FACT, HAS FREELY ADMITTED HIS GUILT OF THE
CAPITAL OFFENSE OF BURGLARY AND RAPE . . . . " 

/11/  "ALL EXCEPTIONS TO GRAND JURORS ON ACCOUNT OF THEIR
DISQUALIFICATIONS SHALL BE TAKEN BEFORE THE PETIT JURY IS SWORN AND
IMPANELED TO TRY THE ISSUE, BY MOTION TO QUASH THE INDICTMENT, AND IF
NOT TAKEN AT THAT TIME SHALL BE DEEMED TO BE WAIVED . . . . "  N.C.
GEN. STAT. SEC. 9-23 (1969 REPL.  VOL.). SEE STATE V. RORIE, 258 N.C.
162, 128 S.E.2D 229 (1962).  UNDER NORTH CAROLINA LAW, A GUILTY PLEA
DOES NOT WAIVE OBJECTIONS TO RACIAL EXCLUSION IN THE SELECTION OF THE
GRAND JURY IF, BEFORE THE PLEA OF GUILTY, THE DEFENDANT RAISES HIS
OBJECTION IN A MOTION TO QUASH THE INDICTMENT.  STATE V. COVINGTON, 258
N.C. 501, 128 S.E.2D 827 (1963). 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN THE JUDGMENT OF AFFIRMANCE AND ALSO CONCUR IN THE
OPINION EXCEPT THAT PART ON PP. 794-795 STATING, "IT MAY BE THAT UNDER
UNITED STATES V. JACKSON, 390 U.S. 570 (1968), IT WAS UNCONSTITUTIONAL
TI IMPOSE THE DEATH PENALTY UNDER THE STATUTORY FRAMEWORK WHICH EXISTED
IN NORTH CAROLINA AT THE TIME OF PARKER'S PLEA." 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING IN NO. 268, AND CONCURRING IN THE RESULT IN
NO. 270, ANTE, P. 742. 

IN UNITED STATES V. JACKSON, 390 U.S. 570 (1968), WE HELD THAT THE
OPERATIVE EFFECT OF THE CAPITAL PUNISHMENT PROVISIONS OF THE FEDERAL
KIDNAPPING ACT WAS UNCONSTITUTIONALLY "TO DISCOURAGE ASSERTION OF THE
FIFTH AMENDMENT RIGHT NOT TO PLEAD GUILTY AND TO DETER EXERCISE OF THE
SIXTH AMENDMENT RIGHT TO DETER EXERCISE OF THE SIXTH AMENDMENT RIGHT TO
DEMAND A JURY TRIAL."  390 U.S.,AT 581.  THE PETITIONERS IN THESE CASES
CLAIM THAT THEY WERE THE VICTIMS OF THE VERY VICES WE CONDEMNED IN
JACKSON.  YET THE COURT PARADOXICALLY HOLDS THAT EACH OF THE
PETITIONERS MUST BE DENIED RELIEF EVEN IF HIS ALLEGATIONS ARE
SUBSTANTIATED.  /1/  INDEED, THE COURT APPARENTLY HOLDS THAT NEVER,
EXCEPT PERHAPS IN HIGHLY UNREALISTIC HYPOTHETICAL SITUATIONS, WILL THE
CONSTITUTIONAL DEFECTS IDENTIFIED IN JACKSON VITIATE A GUILTY PLEA. 
/2/  IN SO HOLDING, THE COURT SERIOUSLY UNDERMINES THE RATIONAL
UNDERPINNINGS OF JACKSON AND DEPARTS BROADLY FROM OUR PRIOR APPROACH TO
THE DETERMINATION OF THE VOLUNTARINESS OF GUILTY PLEAS AND ALSO
CONFESSIONS.  THIS IS MERELY ONE MANIFESTATION OF A DESIGN TO INSULATE
ALL GUILTY PLEAS FROM SUBSEQUENT ATTACK NO MATTER WHAT INFLUENCES
INDUCED THEM.  I CANNOT ACQUIESCE IN THIS WHOLESALE RETREAT FROM THE
SOUND PRINCIPLES TO WHICH WE HAVE PREVIOUSLY ADHERED. 

        I 

THE COURT PROPERLY NOTES THE GRAVE CONSEQUENCES FOR A DEFENDANT THAT
ATTACH TO HIS PLEA OF GUILTY; FOR THE PLEA CONSTITUTES A SIMULTANEOUS
SURRENDER OF NUMEROUS CONSTITUTIONAL RIGHTS, INCLUDING THE PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION AND THE RIGHT TO A TRIAL BY JURY,
WITH ALL OF ITS ATTENDANT SAFEGUARDS.  MCCARTHY V. UNITED STATES, 394
U.S. 459, 466 (1969); BOYKIN V. ALABAMA, 395 U.S. 238, 242-244 (1969). 
INDEED, WE HAVE POINTED OUT THAT A GUILTY PLEA IS MORE SERIOUS THAN A
CONFESSION BECAUSE IT IS TANTAMOUNT TO A CONVICTION.  KERCHEVAL V.
UNITED STATES, 274 U.S. 220, 223 (1927).  ACCORDINGLY, WE HAVE INSISTED
THAT A GUILTY PLEA, REFLECT THE UNFETTERED CHOICE OF THE DEFENDANT. 
SEE BOYKIN V. ALABAMA, SUPRA; MACHIBROAD V. UNITED STATES, 368 U.S.
487, 492 (1962).  IN DECIDING WHETHER ANY ILLICIT PRESSURES HAVE BEEN
BROUGHT TO BEAR ON A DEFENDANT TO INDUCE A GUILTY PLEA, COURTS HAVE
TRADITIONALLY INQUIRED WHETHER IT WAS MADE "VOLUNTARILY" AND
"INTELLIGENTLY" WITH FULL UNDERSTANDING AND APPRECIATION OF THE
CONSEQUENCES. 

THE CONCEPT OF "VOLUNTARINESS" CONTAINS AN AMBIGUOUS ELEMENT,
ACCENTUATED BY THE COURT'S OPINIONS IN THESE CASES, BECAUSE THE CONCEPT
HAS BEEN EMPLOYED TO ANALYZE A VARIETY OF PRESSURES TO SURRENDER
CONSTITUTIONAL RIGHTS, WHICH ARE NOT ALL EQUALLY COERCIVE OR OBVIOUS IN
THEIR COERCIVE EFFECT.  IN SOME CASES WHERE AN "INVOLUNTARY" SURRENDER
HAS BEEN FOUND, THE PHYSICAL OR PSYCHOLOGICAL TACTICS EMPLOYED EXERTED
SO GREAT AN INFLUENCE UPON THE ACCUSED THAT IT COULD ACCURATELY BE SAID
THAT HIS WILL WAS LITERALLY OVERBORNE OR COMPLETELY DOMINATED BY HIS
INTERROGATORS, WHO RENDERED HIM INCAPABLE OF RATIONALLY WEIGHING THE
LEGAL ALTERNATIVES OPEN TO HIM.  /3/ 

THERE IS SOME INTIMATION IN THE COURT'S OPINIONS IN THE INSTANT
CASES THAT, AT LEAST WITH RESPECT TO GUILTY PLEAS, "INVOLUNTARINESS"
COVERS ONLY THE NARROW CLASS OF CASES IN WHICH THE DEFENDANT'S WILL HAS
BEEN LITERALLY OVERBORNE.  AT OTHER POINTS, HOWEVER, THE COURT
APPARENTLY RECOGNIZES THAT THE TERM "INVOLUNTARY# HAS TRADITIONALLY
BEEN APPLIED TO SITUATIONS IN WHICH AN INDIVIDUAL, WHILE PERFECTLY
CAPABLE OF RATIONAL CHOICE, HAS BEEN CONFRONTED WITH FACTORS THAT THE
GOVERNMENT MAY NOT CONSTITUTIONALLY INJECT INTO THE DECISION-MAKING
PROCESS.  FOR EXAMPLE, IN GARRITY V. NEW JERSEY, 385 U.S. 493 (1967),
WE HELD A SURRENDER OF THE SELF-INCRIMINATION PRIVILEGE TO BE
INVOLUNTARY WHEN AN INDIVIDUAL WAS PRESENTED BY THE GOVERNMENT WITH THE
POSSIBILITY OF DISCHARGE FROM HIS EMPLOYMENT IF HE INVOKED THE
PRIVILEGE.  SO, ALSO, IT HAS LONG BEEN HELD THAT CERTAIN PROMISES OF
LENIENCY OR THREATS OF HARSH TREATMENT BY THE TRIAL JUDGE OR THE
PROSECUTOR UNFAIRLY BURDEN OR INTRUDE UPON THE DEFENDANT'S DECISION
MAKING PROCESS.  EVEN THOUGH THE DEFENDANT IS NOT NECESSARILY RENDERED
INCAPABLE OF RATIONAL CHOICE, HIS GUILTY PLEA NONETHELESS MAY BE
INVALID.  /4/ 

THUS THE LEGAL CONCEPT OF "INVOLUNTARINESS" HAS NOT BEEN NARROWLY
CONFINED BUT REFERS TO A SURRENDER OF CONSTITUTIONAL RIGHTS INFLUENCED
BY CONSIDERATIONS THAT THE GOVERNMENT CANNOT PROPERLY INTRODUCE.  THE
CRITICAL QUESTION THAT DIVIDES THE COURT IS WHAT CONSTITUTES AN
IMPERMISSIBLE FACTOR, OR, MORE NARROWLY IN THE CONTEXT OF THESE CASES,
WHETHER THE THREAT OF THE IMPOSITION OF AN UNCONSTITUTIONAL DEATH
PENALTY IS SUCH A FACTOR.  /5/ 

EVEN AFTER THE VARIOUS MEANINGS OF "INVOLUNTARY" HAVE BEEN
IDENTIFIED, APPLICATION OF VOLUNTARINESS CRITERIA IN PARTICULAR
CIRCUMSTANCES REMAINS AN ELUSORY PROCESS BECAUSE IT ENTAILS JUDICIAL
EVALUATION OF THE EFFECT OF PARTICULAR EXTERNAL STIMULI UPON THE STATE
OF MIND OF THE ACCUSED.  SEE HALEY V. OHIO, 332 U.S. 596, 603 (1948)
(SEPARATE OPINION OF FRANKFURTER, J.).  NEVERTHELESS, WE HAVE
CONSISTENTLY TAKEN GREAT PAINS TO INSULATE THE ACCUSED FROM THE MORE
OBVIOUS AND OPPRESSIVE FORMS OF PHYSICAL COERCION.  BEYOND THIS, IN THE
ANALOGOUS AREA OF COERCED CONFESSIONS, FOR EXAMPLE, IT HAS LONG BEEN
RECOGNIZED THAT VARIOUS PSYCHOLOGICAL DEVICES, SOME OF A VERY SUBTLE
AND SOPHISTICATED NATURE, MAY BE EMPLOYED TO INDUCE STATEMENTS.  SUCH
INFLUENCES HAVE BEEN CONDEMNED BY THIS COURT.  /6/  THUS, A CONFESSION
IS NOT VOLUNTARY MERELY BECAUSE IT IS THE "PRODUCT OF A SENTIENT
CHOICE," IF IT DOES NOT REFLECT A FREE EXERCISE OF THE DEFENDANT'S
WILL.  ID., AT 606.  INDEED, AS THE COURT RECOGNIZES, WE HELD IN AN
EARLY CASE THAT THE CONCEPT OF "VOLUNTARINESS" REQUIRES THAT A
CONFESSION "NOT BE EXTRACTED BY ANY SORT OF THREATS OR VIOLENCE, NOR
OBTAINED BY ANY DIRECT OR IMPLIED PROMISES, HOWEVER SLIGHT, NOR BY THE
EXERTION OF ANY IMPROPER INFLUENCE."  BRAM V. UNITED STATES, 168 U.S.
532, 542-543 (1897).  MORE RECENTLY, WE HELD IN MALLOY V. HOGAN, 378
U.S. 1 (1964), THAT THE FIFTH AND FOURTEENTH AMENDMENTS GUARANTEE TO
EVERY PERSON THE RIGHT "TO REMAIN SILENT UNLESS HE CHOOSES TO SPEAK IN
THE UNFETTERED EXERCISE OF HIS OWN WILL, AND TO SUFFER NO PENALTY . . .
FOR SUCH SILENCE."  378 U.S.,AT 8.  CF. GARRITY V. NEW JERSEY, 385 U.S.
493 (1967). 

THE COURT'S ANSWER TO THE STRINGENT CRITERION OF VOLUNTARINESS
IMPOSED BY BRAM AND SUBSEQUENT CASES IS THAT THE AVAILABILITY OF
COUNSEL TO AN ACCUSED EFFECTIVELY OFFSETS THE ILLICIT INFLUENCE UPON
HIM THAT THREATS OR PROMISES BY THE GOVERNMENT MAY IMPOSE.  OF COURSE,
THE PRESENCE OF COUNSEL IS A FACTOR TO BE TAKEN INTO ACCOUNT IN ANY
OVERALL EVALUATION OF THE VOLUNTARINESS OF A CONFESSION OR A GUILTY
PLEA.  HOWEVER, IT HARDLY FOLLOWS THAT THE SUPPORT PROVIDED BY COUNSEL
IS SUFFICIENT BY ITSELF TO INSULATE THE ACCUSED FROM THE EFFECT OF ANY
THREAT OR PROMISE BY THE GOVERNMENT. 

IT HAS FREQUENTLY BEEN HELD, FOR EXAMPLE, THAT A GUILTY PLEA INDUCED
BY THREATS OR PROMISES BY THE TRIAL JUDGE IS INVALID BECAUSE OF THE
RISK THAT THE TRIAL JUDGE'S IMPARTIALITY WILL BE COMPROMISED AND
BECAUSE OF THE INHERENTLY UNEQUAL BARGAINING POWER OF THE JUDGE AND THE
ACCUSED.  /7/  THE ASSISTANCE OF COUNSEL IN THIS SITUATION, OF COURSE,
MAY IMPROVE A DEFENDANT'S BARGAINING ABILITY, BUT IT DOES NOT ALTER THE
UNDERLYING INEQUALITY OF POWER.  SIGNIFICANTLY, THE COURT EXPLICITLY
REFRAINS FROM EXPRESSING ITS VIEWS ON THIS ISSUE.  (ANTE, AT 751 N.
8.)  THIS IS AN UNFORTUNATE OMISSION, FOR JUDICIAL PROMISES OF LENIENCY
IN RETURN FOR A GUILTY PLEA PROVIDE A USEFUL ANALOGY TO WHAT HAS
OCCURRED IN THE INSTANT CASES.  HERE, THE GOVERNMENT HAS PROMISED THE
ACCUSED, THROUGH THE LEGISLATURE, THAT HE WILL RECEIVE A SUBSTANTIALLY
REDUCED SENTENCE IF HE PLEADS GUILTY.  IN FACT, THE LEGISLATURE HAS
SIMULTANEOUSLY THREATENED THE ACCUSED WITH THE ULTIAMTE PENALTY-- DEATH
- IF HE INSISTS UPON A JURY TRIAL AND HAS PROMISED A PENALTY NO GREATER
THAN LIFE IMPRISONMENT IF HE PLEADS GUILTY.  /8/ 

IT WAS PRECISELY THIS STATUTORILY IMPOSED DILEMMA THAT WE IDENTIFIED
IN JACKSON AS HAVING THE "INEVITABLE EFFECT" OF DISCOURAGING ASSERTION
OF THE RIGHT NOT TO PLEAD GUILTY AND TO DEMAND A JURY TRIAL.  AS
RECOGNIZED IN JACKSON, IT IS INCONCEIVABLE THAT THIS SORT OF CAPITAL
PENALTY SCHEME WILL NOT HAVE A MAJOR IMPACT UPON THE DECISIONS OF MANY
DEFENDANTS TO PLEAD GUILTY.  IN ANY PARTICULAR CASE, THEREFORE, THE
INFLUENCE OF THIS UNCONSTITUTIONAL FACTOR MUST NECESSARILY BE GIVEN
WEIGHT IN DETERMINING THE VOLUNTARINESS OF A PLEA.  /9/ 

TO BE SURE, WE SAID IN JACKSON THAT "THE FACT THAT THE FEDERAL
KIDNAPING ACT TENDS TO DISCOURAGE DEFENDANTS FROM INSISTING UPON THEIR
INNOCENCE AND DEMANDING TRIAL BY JURY HARDLY IMPLIES THAT EVERY
DEFENDANT WHO ENTERS A GUILTY PLEA TO A CHARGE UNDER THE ACT DOES SO
INVOLUNTARILY."  /10/  390 U.S.,AT 583.  BUT THAT STATEMENT MERELY
EMPHASIZED THE OBVIOUS FACT THAT IT IS PERFECTLY POSSIBLE THAT A
DEFENDANT PLEADED GUILTY FOR REASONS ENTIRELY UNRELATED TO THE PENALTY
SCHEME, FOR EXAMPLE, BECAUSE HIS GUILT WAS CLEAR OR BECAUSE HE DESIRED
TO SPARE HIMSELF AND HIS FAMILY "THE SPECTACLE AND EXPENSE OF
PROTRACTED COURTROOM PROCEEDINGS."  390 U.S.,AT 584.  THE CONVERSE,
HOWEVER, IS EQUALLY CLEAR:  NOT EVERY DEFENDANT WHO PLEADED GUILTY
UNDER THE ACT DID SO VOLUNTARILY, THAT IS, UNINFLUENCED BY THE HIGHLY
COERCIVE CHARACTER OF THE PENALTY SCHEME.  THIS MUST IS MERELY THE
TEACHING OF JACKSON. 

THE COURT HAS ELECTED TO DENY THIS LATTER ASPECT OF JACKSON, BUT IN
DOING SO IT UNDERMINES THE RATIONALE ON WHICH JACKSON WAS DECIDED.  IN
JACKSON WE INVALIDATED THE DEATH PENALTY PROVISION OF THE KIDNAPING ACT
BECAUSE THE ACT'S PENALTY SCHEME AS A WHOLE ENCOURAGED GUILTY PLEAS AND
WAIVERS OF JURY TRIAL, AND IN THE CIRCUMSTANCES OF PARTICULAR CASES
THIS IMPROPER INFLUENCE COULD RENDER PLEAS AND WAIVERS CONSTITUTIONALLY
INVOLUNTARY.  TODAY THE COURT APPEARS TO DISTINGUISH SHARPLY BETWEEN A
GUILTY PLEA THAT HAS BEEN "ENCOURAGED" BY THE PENALTY SCHEME AND ONE
THAT HAS BEEN ENTERED "INVOLUNTARILY."  HOWEVER, IF THE INFLUENCE OF
THE PENALTY SCHEME CAN NEVER RENDER A PLEA INVOLUNTARY, IT IS DIFFICULT
TO UNDERSTAND WHY IN JACKSON WE TOOK THE EXTRAORDINARY STEP OF
INVALIDATING PART OF THAT SCHEME.  APPARENTLY IN THE COURT'S VIEW, WE
INVALIDATED THE DEATH PENALTY IN JACKSON BECAUSE IT "ENCOURAGED" PLEAS
THAT ARE PERFECTLY VALID DESPITE THE ENCOURAGEMENT.  RARELY, IF EVER,
HAVE WE OVERTURNED AN ACT OF CONGRESS FOR WHAT PROVES TO BE SO
FRIVOLOUS A REASON.  MOREOVER, THE COURT'S PRESENT COVERT REJECTION OF
THE JACKSON RATIONALE, TOGETHER WITH ITS ACCEPTANCE OF THE RESULT IN
JACKSON, LEADS TO A STRIKING ANOMALY.  SINCE THE DEATH PENALTY
PROVISION OF THE KIDNAPING ACT REMAINS VOID, THOSE WHO RESISTED THE
PRESSURES IDENTIFIED IN JACKSON AND AFTER A JURY TRIAL WERE SENTENCED
TO DEATH RECEIVE RELIEF, BUT THOSE WHO SUCCUMBED TO THE SAME PRESSURES
AND WERE INDUCED TO SURRENDER THEIR CONSTITUTIONAL RIGHTS ARE LEFT
WITHOUT ANY REMEDY AT ALL.  WHERE THE PENALTY SCHEME FAILED TO PRODUCE
ITS UNCONSTITUTUIONAL EFFECT, THE INTENDED VICTIMS OBTAIN RELIEF; WHERE
IT SUCCEEDED, THE REAL VICTIMS HAVE NONE.  THUS THE COURT PUTS A
PREMIUM ON STRENGTH OF WILL AND INVULNERABILITY TO PRESSURE AT THE COST
OF CONSTITUTIONAL RIGHTS.     OF COURSE, WHETHER IN A GIVEN CASE THE
PENALTY SCHEME HAS ACTUALLY EXERCISED ITS PERNICIOUS INFLUENCE SO AS TO
MAKE A GUILTY PLEA INVOLUNTARY CAN BE DECIDED ONLY BY CONSIDERATION OF
THE FACTORS THAT ACTUALLY MOTIVATED THE DEFENDANT TO ENTER HIS PLEA. 
IF A PARTICULAR DEFENDANT CAN DEMONSTRATE THAT THE DEATH PENALTY SCHEME
EXERCISED A SIGNIFICANT INFLUENCE UPON HIS DECISION TO PLEAD GUILTY,
THEN, UNDER JACKSON, HE IS ENTITLED TO REVERSAL OF THE CONVICTION BASED
UPON HIS ILLICITLY PRODUCED PLEA.    THE COURT ATTEMPTS TO SUBMERGE THE
ISSUE OF VOLUNTARINESS OF A PLEA UNDER AN UNCONSTITUTIONAL CAPITAL
PUNISHMENT SCHEME IN A GENERAL DISCUSSION OF THE PRESSURES UPON
DEFENDANTS TO PLEAD GUILTY WHICH ARE SAID TO ARISE FROM, INTER ALIA,
THE VENERABLE INSTITUTION OF PLEA BARGAINING.  THE ARGUMENT APPEARS TO
REDUCE TO THIS:  BECAUSE THE ACCUSED CANNOT BE INSULATED FROM ALL
INDUCEMENTS TO PLEAD GUILTY, IT FOLLOWS THAT HE SHOULD BE SHIELDED FROM
NONE. 

THE PRINCIPAL FLAW IN THE COURT'S DISCOURSE ON PLEA BARGAINING,
HOWEVER, IS THAT IT IS, AT BEST, ONLY MARGINALLY RELEVANT TO THE
PRECISE ISSUES BEFORE US.  THERE ARE CRITICAL DISTINCTIONS BETWEEN PLEA
BARGAINING AS COMMONLY PRACTICED AND THE SITUATION PRESENTLY UNDER
CONSIDERATION-- DISTINCTIONS WHICH, IN CONSTITUTIONAL TERMS, MAKE A
DIFFERENCE.  THUS, WHATEVER THE MERIT, IF ANY, OF THE CONSTITUTIONAL
OBJECTIONS TO PLEA BARGAINING GENERALLY, /11/  THOSE ISSUES ARE NOT
PRESENTLY BEFORE US. 

WE ARE DEALING HERE WITH THE LEGISLATIVE IMPOSITION OF A MARKEDLY
MORE SEVERE PENALTY IF A DEFENDANT ASSERTS HIS RIGHT TO A JURY TRIAL
AND A CONCOMITANT LEGISLATIVE PROMISE OF LENIENCY IF HE PLEADS GUILTY. 
THIS IS VERY DIFFERENT FROM THE GIVE-AND-TAKE NEGLTIATION COMMON IN
PLEA BARGAINING BETWEEN THE PROSECUTION AND DEFENSE, WHICH ARGUABLY
POSSESS RELATIVELY EQUAL BARGAINING POWER.  /12/  NO SUCH FLEXIBILITY
IS BUILT INTO THE CAPITAL PENALTY SCHEME WHERE THE GOVERNMENT'S HARSH
TERMS WITH RESPECT TO PUNISHMENT ARE STATED IN UNALTERABLE FORM. 

FURTHERMORE, THE LEGISLATIVELY ORDAINED PENALTY SCHEME MAY AFFECT
ANY DEFENDANT, EVEN ONE WITH RESPECT TO WHOM PLEA BARGAINING IS WHOLLY
INAPPROPRIATE BECAUSE HIS GUILT IS UNCERTAIN.  /13/  THUS THE PENALTY
SCHEME PRESENTS A CLEAR DANGER THAT THE INNOCENT, OR THOSE NOT CLEARLY
GUILTY, OR THOSE WHO INSIST UPON THEIR INNOCENCE, WILL BE INDUCED
NEVERTHELESS TO PLEAD GUILTY.  THIS HAZARD NECESSITATES PARTICULARLY
SENSITIVE SCRUTINY OF THE VOLUNTARINESS OF GUILTY PLEAS ENTERED UNDER
THIS TYPE OF DEATH PENALTY SCHEME. 

THE PENALTY SCHEMES INVOLVED HERE ARE ALSO DISTINGUISHABLE FROM MOST
PLEA BARGAINING BECAUSE THEY INVOLVE THE IMPOSITION OF DEATH-- THE MOST
SEVERE AND AWESOME PENALTY KNOWN TO OUR LAW.  THIS COURT HAS RECOGNIZED
THAT CAPITAL CASES ARE TREATED DIFFERENTLY IN SOME RESPECTS FROM
NONCAPITAL CASES.  SEE, E.G., WILLIAMS V. GEORGIA, 349 U.S. 375, 391
(1955).  WE HAVE IDENTIFIED THE THREAT OF A DEATH PENALTY AS A FACTOR
TO BE GIVEN CONSIDERABLE WEIGHT IN DETERMINING WHETHER A DEFENDANT HAS
DELIBERATELY WAIVED HIS CONSTITUTIONAL RIGHTS.  THUS, FOR EXAMPLE, IN
GREEN V. UNITED STATES, 355 U.S. 184 (1957), IT WAS CONTENDED THAT A
DEFENDANT INITIALLY CONVICTED OF SECOND-DEGREE MURDER UPON AN
INDICTMENT CHARGING FIRST-DEGREE MURDER WAIVED HIS DOUBLE-JEOPARDY
OBJECTIONS TO A SECOND TRIAL FOR MURDER IN THE FIRST DEGREE BY TAKING A
SUCCESSFUL APPEAL.  WE REJECTED THIS ARGUMENT, OBSERVING THAT 

"A DEFENDANT FACED WITH SUCH A 'CHOICE' TAKES A 'DESPERATE CHANCE'
IN SECURING THE REVERSAL OF THE ERRONEOUS CONVICTION.  THE LAW SHOULD
NOT, AND IN OUR JUDGMENT DOES NOT, PLACE THE DEFENDANT IN SUCH AN
INCREDIBLE DILEMMA."  355 U.S.,AT 193.  SO, ALSO, IN FAY V. NOIA, 372
U.S. 391 (1963), IT WAS ARGUED THAT THE PETITIONER HAD DELIBERATELY
FAILED TO SEEK REDRESS THROUGH APPEAL OF HIS CONVICTION WITHIN THE
STATE APPELLATE PROCESS AND THUS WAS NOT ENTITLED TO FEDERAL HABEAS
CORPUS RELIEF.  NOTING THAT THE PETITIONER HAD BEEN CONFRONTED WITH THE
"GRISLY CHOICE" OF FORGOING HIS APPELLATE RIGHTS OR FACING A POSSIBLE
DEATH SENTENCE IF HIS APPEAL WERE SUCCESSFUL, WE HELD THAT THE FAILURE
TO SEEK STATE APPELLATE REVIEW, MOTIVATED BY FEAR OF THE DEATH PENALTY,
COULD NOT BE INTERPOSED TO BAR THE FEDERAL HABEAS CORPUS REMEDY.  /14/
372 U.S.,AT 438-440. 

FINALLY, UNDER OUR EXPRESS HOLDING IN JACKSON, THE DEATH PENALTY IN
NO CIRCUMSTANCES COULD HAVE BEEN CONSTITUTIONALLY IMPOSED UPON THESE
DEFENDANTS.  /15/  IF THEY HAD BEEN AWARE OF THE CONSTITUTIONAL
DEFICIENCY IN THE PENALTY SCHEME, THEY MIGHT WELL HAVE DECIDED TO
ASSERT THEIR RIGHT TO A JURY TRIAL SINCE THE MAXIMUM PENALTY THAT COULD
HAVE BEEN IMPOSED AFTER AN UNFAVORABLE JURY VERDICT WAS LIFE
IMPRISONMENT.  IT IS IN THIS NARROW CONTEXT, INVOLVING A LEGISLATIVELY
MANDATED UNCONSTITUTIONAL DEATH PENALTY SCHEME, THAT THE DEFENDANT
SHOULD BE RELIEVED OF THE RIGID FINALITY OF HIS PLEA IF HE DEMONSTRATES
THAT IT WAS A CONSEQUENCE OF THE UNCONSTITUTIONAL SCHEME.  /16/

II 

TURNING TO THE FACTS OF THESE PARTICULAR CASES, I CONSIDER FIRST THE
CONTENTION THAT THE NORTH CAROLINA CAPITAL PUNISHMENT SCHEME UNDER
WHICH PARKER WAS CONVICTED (ANTE, AT 792-793, NN. 1,2), WAS
CONSTITUTIONALLY DEFICIENT UNDER THE STANDARDS SET FORTH IN JACKSON. 
ALTHOUGH THE COURT ASSUMES ARGUENDO THAT THE NORTH CAROLINA STATUTES
WERE INDISTINGUISHABLE FROM THE FEDERAL KIDNAPING ACT, THIS CONCLUSION
IS, IN MY VIEW, INESCAPABLE.  UNDER NORTH CAROLINA LAW AS IT FORMERLY
EXISTED, THE DEFENDANT IN A CAPITAL CASE HAD BUT TWO CHOICES:  HE COULD
DEMAND A JURY TRIAL AND THEREBY RISK THE IMPOSITION OF THE DEATH
PENALTY, OR HE COULD ABSOLUTELY AVOID THAT POSSIBILITY BY PLEADING
GUILTY.  /17/  IF ANYTHING, THE DEFECT IN THE NORTH CAROLINA STATUTORY
SCHEME WAS MORE SERIOUS THAN THAT IN THE STATUTE CONSIDERED IN JACKSON,
FOR UNDER THE KIDNAPING ACT A DEFENDANT AT LEAST HAD A POTENTIAL
OPPORTUNITY TO AVOID THE DEATH PENALTY AND TO HAVE HIS GUILT DETERMINED
IN A BENCH TRIAL.  THEREFORE, PARKER IS ENTITLED TO RELIEF IF HE CAN
DEMONSTRATE THAT THE UNCONSTITUTIONAL CAPITAL PUNISHMENT SCHEME WAS A
SIGNIFICANT FACTOR IN HIS DECISION TO PLEAD GUILTY. 

PARKER COMES HERE AFTER DENIAL OF STATE POST-CONVICTION RELIEF.  THE
NORTH CAROLINA COURTS HAVE CONSISTENTLY TAKEN THE POSITION THAT UNITED
STATES V. JACKSON HAS NO APPLICABILITY TO THE FORMER NORTH CAROLINA
CAPITAL PUNISHMENT SCHEME.  /18/  THUS, THE MERITS OF PARKER'S
CONTENTION THAT HIS PLEA WAS MOTIVATED BY THE UNCONSTITUTIONAL DEATH
PENALTY HAVE NOT BEEN CONSIDERED BY THE STATE COURTS.  I WOULD,
THEREFORE, REVERSE THE JUDGMENT OF THE NORTH CAROLINA COURT OF APPEALS
AND REMAND THE PARKER CASE TO THAT COURT FOR PROCEEDINGS NOT
INCONSISTENT WITH THE PRINCIPLES ELABORATED HEREIN.  /19/

    III 

IN 1959 BRADY WAS INDICTED UNDER THE FEDERAL KIDNAPING ACT.  THE
INDICTMENT ALLEGED THAT THE KIDNPAED PERSON HAD "NOT BEEN LIBERATED
UNHARMED."  THUS BRADY WAS SUBJECT TO A POTENTIAL SENTENCE OF DEATH IF
HE DEMANDED A JURY TRIAL.  /20/  HE ULTIMATELY ELECTED TO PLEAD GUILTY,
A DECISION THAT FOLLOWED A SIMILAR ACTION BY HIS CODEFENDANT. 
SUBSEQUENTLY BRADY WAS SENTENCED TO 50 YEARS' IMPRISONMENT.  THERE
EXISTS IN THE RECORD SUBSTANTIAL EVIDENCE THAT BRADY DECIDED TO PLEAD
GUILTY BECAUSE THE SIMILAR PLEA DECISION OF HIS CODEFENDANT SERIOUSLY
UNDERMINED HIS OWN DEFENSE.  IT IS ALSO TRUE THAT BRADY WAS UNDER THE
IMPRESSION THAT THE MAXIMUM PENALTY THAT COULD BE IMPOSED FOLLOWING A
JURY TRIAL WAS THE DEATH SENTENCE. 

A HEARING WAS HELD PURSUANT TO BRADY'S MOTION UNDER 28 U.S.C.2255 TO
VACATE HIS SENTENCE, AT WHICH BRADY, HIS CODEFENDANT, AND THEIR TRIAL
ATTORNEYS TESTIFIED.  THIS HEARING WAS COMPLETED AFTER THE DISTRICT
COURT HAD DECIDED THE JACKSON CASE, BUT BEFORE THIS COURT HAD SPOKEN IN
THE MATTER.  THE DISTRICT JUDGE TOOK THE POSITION THAT THE DEATH
PENALTY PROVISION OF THE FEDERAL KIDNAPING ACT WAS CONSTITUTIONAL.  IN
THIS RESPECT, OF COURSE, HE ERRED.  HOWEVER, THE DISTRICT JUDGE ALSO
CONCLUDED THAT BRADY "DECIDED TO PLEAD GUILTY WHEN HE LEARNED THAT HIS
CO-DEFENDANT WAS GOING TO PLEAD GUILTY" AND THAT THIS DECISION WAS NOT
INDUCED OR INFLUENCED IMPROPERLY BY ANYTHING THE TRIAL JUDGE OR HIS
ATTORNEY HAD TOLD HIM.  THE DISTRICT COURT FURTHER FOUND THAT "THE PLEA
OF GUILTY WAS MADE BY (BRADY) BY REASON OF OTHER MATTERS AND NOT BY
REASON OF (THE KIDNAPING ACT)." 

THE DECISION IN THE COURT OF APPEALS FOR THE TENTH CIRCUIT WAS
RENDERED AFTER OUR DECISION IN JACKSON.  THE COURT OF APPEALS CORRECTLY
POINTED OUT THAT NOT EVERY PLEA ENTERED UNDER THE FEDERAL KIDNAPING ACT
IS NECESSARILY INVALID AND ULTIMATELY CONCLUDED THAT "THE FINDING OF
THE TRIAL COURT THAT THE GUILTY PLEA WAS NOT MADE BECAUSE OF THE
STATUTE BUT BECAUSE OF OTHER MATTERS IS SUPPORTED BY SUBSTANTIAL
EVIDENCE AND IS BINDING ON US." 

AN INDEPENDENT EXAMINATION OF THE RECORD IN THE INSTANT CASE
CONVINCES ME THAT THE CONCLUSIONS OF THE LOWER COURTS ARE NOT CLEARLY
ERRONEOUS.  ALTHOUGH BRADY WAS AWARE THAT HE FACED A POSSIBLE DEATH
SENTENCE THERE IS NO EVIDENCE THAT THIS FACTOR ALONE PLAYED A
SIGNIFICANT ROLE IN HIS DECISION TO ENTER A GUILTY PLEA.  RATHER, THERE
IS CONSIDERABLE EVIDENCE, WHICH THE DISTRICT COURT CREDITED, THAT
BRADY'S PLEA WAS TRIGGERED BY THE CONFESSION AND PLEA DECISION OF HIS
CODEFENDANT AND NOT BY ANY SUBSTANTIAL FEAR OF THE DEATH PENALTY. 
MOREOVER, BRADY'S POSITION IS DEPENDENT IN LARGE MEASURE UPON HIS OWN
ASSERTIONS, YEARS AFTER THE FACT, THAT HIS PLEA WAS MOTIVATED BY FEAR
OF THE DEATH PENALTY AND THUS RESTS LARGELY UPON HIS OWN CREDIBILITY. 
FOR EXAMPLE, THERE IS NO INDICATION, CONTEMPORANEOUS WITH THE ENTRY OF
THE GUILTY PLEA, THAT BRADY THOUGHT HE WAS INNOCENT AND WAS PLEADING
GUILTY MERELY TO AVOID POSSIBLE EXECUTION.  FURTHERMORE, BRADY'S PLEA
WAS ACCEPTED BY A TRIAL JUDGE WHO MANIFESTED SOME SENSITIVITY TO THE
SERIOUSNESS OF A GUILTY PLEA AND QUESTIONED BRADY AT LENGTH CONCERNING
HIS GUILT AND THE VOLUNTARINESS OF THE PLEA BEFORE IT WAS FINALLY
ACCEPTED. 

IN VIEW OF THE FOREGOING, I CONCUR IN THE RESULT REACHED BY THE
COURT IN THE BRADY CASE. 

/1/  THE PRESENT DISCUSSION, WHILE CONTAINING OCCASIONAL REFERENCES
TO THE FEDERAL KIDNAPING ACT, IS EQUALLY APPLICABLE TO PARKER, FOR AS I
SHALL DEMONSTRATE IN PART II OF THIS OPINION, THERE IS NO PERTINENT
DISTINCTION BETWEEN THE KIDNAPING ACT AND THE NORTH CAROLINA STATUTES
UNDER WHICH PARKER WAS CONVICTED. 

/2/  THE PRECISE CONTOURS OF THE COURT'S THEORY, DEVELOPED
PRINCIPALLY IN BRADY V. UNITED STATES, ARE UNCLEAR.  THE COURT
INITIALLY STATES THAT "THE POSSIBILITY OF A HEAVIER SENTENCE FOLLOWING
A GUILTY VERDICT AFTER A TRIAL" IS ONE OF THE "RELEVANT CIRCUMSTANCES"
TO BE TAKEN INTO ACCOUNT IN DETERMINING THE VOLUNTARINESS OF THE GUILTY
PLEA.  ANTE, AT 749.  SUBSEQUENTLY, HOWEVER, AFTER DISCUSSING ITS
NOTION OF VOLUNTARINESS, THE COURT CONCLUDES THAT "A PLEA OF GUILTY IS
NOT INVALID MERELY BECAUSE ENTERED TO AVOID THE POSSIBILITY OF A DEATH
PENALTY."  ANTE, AT 755.  ELSEWHERE THE COURT STATES THAT "THERE (IS
NO) EVIDENCE THAT BRADY WAS SO GRIPPED BY FEAR OF THE DEATH PENALTY OR
HOPE OF LENIENCY THAT HE DID NOT OR COULD NOT, WITH THE HELP OF
COUNSEL, RATIONALLY WEIGH THE ADVANTAGES OF GOING TO TRIAL AGAINST THE
ADVANTAGES OF PLEADING GUILTY."  ANTE, AT 750.  IF THE LATTER IS WHAT
THE COURT DEEMS TO BE THE CRITERION OF VOLUNTARINESS, THE HOLDING IS
TOTALLY WITHOUT PRECEDENT, FOR IT HAS NEVER BEEN THOUGHT THAT AN
INDIVIDUAL'S MENTAL STATE MUST BORDER ON TEMPORARY INSANITY BEFORE HIS
CONFESSION OR GUILTY PLEA CAN BE FOUND "INVOLUNTARY." 

/3/  SEE, E.G., PENNSYLVANIA EX REL. HERMAN V. CLAUDY, 350 U.S. 116
(1956); CHAMBERS V. FLORIDA, 309 U.S. 227 (1940); BROWN V. MISSISSIPPI,
297 U.S. 278 (1936). 

/4/  SEE, E.G., MACHIBRODA V. UNITED STATES, 368 U.S. 487 (1962);
CASES CITED, N. 7, INFRA. 

/5/  A FURTHER LATENT AMBIGUITY IN THE CONCEPT OF "VOLUNTARINESS"
ARISES FROM THE NOTION THAT A PLEA IS INVOLUNTARY ONLY IF IT IS THE
PRODUCT OF COERCION DIRECTLY APPLIED TO THE ACCUSED AT THE TIME HIS
PLEA IS ENTERED, AND HENCE THAT PLEA CANNOT BE TAINTED BY PRIOR
UNCONSTITUTIONAL ACTION ON THE PART OF THE GOVERNMENT.  WITH THIS VIEW
I AM IN DISAGREEMENT FOR REASONS MORE FULLY SET FORTH IN MY DISSENTING
OPINION IN MCMANN V. RICHARDSON, ANTE, P. 775, DECIDED THIS DAY. 

/6/  SEE, E.G., MIRANDA V. ARIZONA, 384 U.S. 436 (1966); HAYNES V.
WASHINGTON, 373 U.S. 503 (1963); ROGERS V. RICHMOND, 365 U.S. 534
(1961); SPANO V. NEW YORK, 360 U.S. 315 (1959); HALEY V. OHIO, 332 U.S.
596 (1948). 

/7/  SEE, E.G., SCOTT V. UNITED STATES, 135 U.S.APP.D.C. 377, 419
F.2D 264 (1969); UNITED STATES EX REL. MCGRATH V. LAVALLEE, 319 F.2D
308 (C.A. 2D CIR. 1963); EUZIERE V. UNITED STATES, 249 F.2D 293 (C.A.
10TH CIR. (1957); UNITED STATES EX REL. ELKSNIS V. GILLIGAN, 256
F.SUPP.  244 (D.C.S.C.N.Y. 1966); UNITED STATES V. TATEO, 214 F.SUPP. 
560 (D.C.S.D.N.Y. 1063); COMMONWEALTH V. EVANS, 434 PA. 52, 252 A.2D
689 (1969).  SEE GENERALLY RECENT DEVELOPMENTS, JUDICIAL PLEA
BARGAINING, 19 STAN.L.REV.1082 (1967). 

/8/  THE ONLY ALTERNATIVE TO A JURY TRIAL AVAILABLE TO PARKER UNDER
THE NORTH CAROLINA STATUTES WAS A PLEA OF GUILTY.  UNDER THE FEDERAL
KIDNAPING ACT, HOWEVER, THE POSSIBILITY EXISTED THAT A DEFENDANT COULD
CONTEST HIS GUILT IN A BENCH TRIAL AND SIMULTANEOUSLY AVOID A DEATH
PENALTY.  NOTHING MORE APPEARING, IT IS ARGUABLE THAT AN INDIVIDUAL WHO
PLEADED GUILTY WITHOUT SEEKING A BENCH TRIAL DID SO FOR REASONS OTHER
THAN FEAR OF THE DEATH PENALTY. 

WE HAVE PREVIOUSLY HELD, HOWEVER, THAT THERE IS NO CONSTITUTIONAL
RIGHT TO A BENCH TRIAL, SINGER V. UNITED STATES, 380 U.S. 24 (1965),
AND UNDER FED. RULE CRIM. PROC. 23 THE CONSENT OF BOTH THE TRIAL JUDGE
AND THE PROSECUTION IS A PREREQUISITE TO THE WAIVER OF A JURY TRIAL. 
IN BRADY THE TRIAL JUDGE INDICATED THAT HE WOULD NOT PERMIT THE CASE TO
BE TRIED WITHOUT A JURY.  THUS, IN SUBSTANCE, THE CHOICE THAT
CONFRONTED BRADY-- THE JURY TRIAL OR GUILTY PLEA-- WAS THE SAME THAT
FACED PARKER.     THERE IS ROOM FOR ARGUMENT THAT A DIRECT
CONFRONTATION BETWEEN A TRIAL JUDGE AND THE DEFENDANT WOULD HAVE MORE
IMPACT UPON THE ACCUSED THAN A STATUTE.  HOWEVER, WHEN THE ACCUSED
APPEARS BEFORE THE TRIAL JUDGE, HE AT LEAST HAS AN OPPORTUNITY TO
PRESENT HIS VIEWS TO THE JUDGE, AND, IF ALL ELSE FAILS, TO PRESERVE A
RECORD FOR DIRECT OR COLLATERAL REVIEW OF ANY OVERREACHING BY THE TRIAL
COURT. 

/9/  NORTH CAROLINA ARGUES THAT JACKSON OUGHT NOT TO BE APPLIED
RETROACTIVELY SO AS TO AFFECT GUILTY PLEAS ENTERED PRIOR TO THAT
DECISION.  IN ONE SENSE, OF COURSE, THE JACKSON RETROACTIVITY PROBLEM
IS CHIMERICAL, FOR THE LONG-STANDING CONSTITUTIONAL REQUIREMENT THAT
VALID GUILTY PLEAS BE VOLUNTARY AND INTELLIGENT WAS NOT ALTERED BY THAT
DECISION. 

HOWEVER, JACKSON DID APPLY THE STANDARD OF VOLUNTARINESS IN A NEW
CONTEXT BY CONSIDERING THE INDUCEMENT TO PLEAD GUILTY SUPPLIED BY AN
UNCONSTITUTIONAL CAPITAL PUNISHMENT SCHEME.  IN A SENSE, THEREFORE,
JACKSON DID IN FACT MANDATE A NEW APPLICATION OF THE VOLUNTARINESS
TEST.  TO THE EXTENT THAT THE RETROACTIVITY ISSUE NEED BE RESOLVED, I
HAVE NO DIFFICULTY IN CONCLUDING THAT JACKSON SHOULD BE SO APPLIED AS
TO PROVIDE RELIEF FOR THOSE WHO SUFFERED THE VERY CONSTITUTIONAL VICES
THAT WE CONDEMNED IN THAT CASE.  THE ENTRY OF A GUILTY PLEA CONCERNS
THE VERY ESSENCE OF THE GUILT-DETERMINING PROCESS, AND, IF THAT PLEA IS
INVOLUNTARILY INDUCED, THE RESULT IS "TO INFECT A CRIMINAL PROCEEDING
WITH THE CLEAR DANGER OF CONVICTING THE INNOCENT."  TEHAN V. SHOTT, 382
U.S. 406, 416 (1966).  SEE JOHNSON V. NEW JERSEY, 384 U.S. 719, 727-729
(1966); LINKLETTER V. WALKER, 381 U.S. 618 (1965). 

/10/  IF THIS STATEMENT MEANS THAT NO PLEA CAN BE RENDERED
INVOLUNTARY BY THE STATUTORY SCHEME, IT WAS AT LEAST AN OBSCURE, NOT TO
SAY HIGHLY MISLEADING, WAY OF SAYING SO.  LABOY V. NEW JERSEY, 266
F.SUPP.  581 (D.C.N.J. 1967), CITED IN JACKSON, UPON WHICH THE COURT
NOW SEIZES, IS MERELY AN EXAMPEL OF A CASE THAT REJECTED AN ATTACK UPON
THE VOLUNTARINESS OF A PLEA ALLEGEDLY INDUCED BY FEAR OF A DEATH
PENALTY.  SURELY IT CANNOT BE RELIED UPON TO ESTABLISH GUIDELINES WITH
RESPECT TO THE QUANTUM OF PROOF NECESSARY TO DEMONSTRATE THE
INVOLUNTARINESS OF A PLEA UNDER A JACKSON-DEFECTIVE STATUTE,
PARTICULARLY SINCE THE DISTRICT COURT IN LABOY ERRONEOUSLY CONCLUDED,
IN DICTA, THAT THE FEDERAL KIDNAPING ACT CONTAINED NO CONSTITUTIONAL
INFIRMITY. 

/11/  SEE GENERALLY SCOTT V. UNITED STATES, 135 U.S.APP.D.C. 377,
419 F.2D 264 (1969); D. NEWMAN, CONVICTION; THE DETERMINATION OF GUILT
OR INNOCENCE WITHOUT TRIAL (1966); AMERICAN BAR ASSOCIATION PROJECT ON
STANDARDS FOR CRIMINAL JUSTICE, PLEAS OF GUILTY SECS. 3.1-3.4 (APPROVED
DRAFT 1968); PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF
JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 134-137 (1967); NOTE,
THE UNCONSTITUIONALITY OF PLEA BARGAINING, 83 HARV.L.REV.  1387 (1970);
NOTE, GUILTY PLEA BARGAINING:  COMPROMISES BY PROSECUTORS TO SECURE
GUILTY PLEAS, 112 U.PA.L.REV.  865 (1964). 

/12/  SEE GENERALLY D. NEWMAN, CONVICTION, THE DETERMINATION OF
GUILT OR INNOCENCE WITHOUT TRIAL 78-104 (1966). 

/13/  SEE, E.G., BAILEY V. MACDOUGALL, 392 F.2D 155, 158 N. 7 (C.A.
4TH CIR.), CERT. DENIED, 393 U.S. 847 (1968):  "PLEA BARGAINING THAT
INDUCES AN INNOCENT PERSON TO PLEAD GUILTY CANNOT BE SANCTIONED. 
NEGLTIATION MUST BE LIMITED TO THE QUANTUM OF PUNISHMENT FOR AN
ADMITTEDLY GUILTY DEFENDANT." 

/14/  A PERCEPTIVE COMMENTATOR, PRIOR TO OUR DECISION IN JACKSON,
NOTED THE INTERRELATION OF GUILTY PLEAS AND AN UNCONSTITUTIONAL
LEGISLATIVELY MANDATED CAPITAL PUNISHMENT PENALTY SCHEME: "IT IS
INCONTROVERTIBLE THAT THE (FEDERAL KIDNAPING) ACT PROMISES A PERSON
PLEADING GUILTY AT LEAST SUBSTANTIAL SECURITY FROM THE IMPOSITION OF
CAPITAL PUNISHMENT, WHILE IT THREATENS HIM WITH THE ULTIAMTE SANCTION
OF THE LAW-- DEATH.  CAN NOT THE STATUTE BE ACCURATELY CHARACTERIZED AS
CONTAINING A LEGISLATIVE PROMISE OF SUBSTANTIAL SECURITY FROM
INFLICTION OF THE DEATH PENALTY IN THE EVENT OF A PLEA OF GUILTY BY THE
DEFENDANT?  IS THERE ANY LEGITIMATE REASON WHY A DEFENDANT'S GUILTY
PLEA UNDER THE ACT SHOULD BE CONSIDERED ANY LESS THE PRODUCT OF
COERCION BECAUSE IT WAS INDUCED BY A LEGISLATIVE PROMISE OF SUBSTANTIAL
IMMUNITY THAN IS A GUILTY PLEA INDUCED BY THE PREVIOUSLY MENTIONED
JUDICIAL OFFERS OF SENTENCING CONESSIONS (IN UNITED STATES EX REL.
ELKSNIS V. GILLIGAN, 256 F.SUPP.  244 (D.C.S.D.N.Y. 1966), AND UNITED
STATES V. TATEO, 214 F.SUPP.  560 (D.C.S.D.N.Y. 1963))?  CAN IT BE
SERIOUSLY CONTENDED THAT STATEMENTS GIVEN BY POLICE OFFICERS IN ORDER
TO AVOID BEING DISCHARGED FROM THEIR EMPLOYMENT ARE ANY MORE THE
PRODUCT OF COERCION THAN IS A GUILTY PLEA MADE BY A DEFENDANT IN MORTAL
FEAR OF THE EXECUTIONER'S CHAIR (CITING GARRITY V. NEW JERSEY, 385 U.S.
493 (1967))?  IN A CAPITAL CASE WHERE A DEFENDANT IS PUT TO PLEA UNDER
THE LINDBERGH LAW, HE IS FACED WITH A CHOICE 'BETWEEN THE ROCK AND THE
WHIRLPOOL' (385 U.S.,AT 498), AND COERCION QUITE PROBABLY IS INHERENT
IN HIS CHOICE TO WAIVE HIS RIGHT TO A JURY TRIAL."  NOTE, UNITED STATES
V. JACKSON:  THE POSSIBLE CONSEQUENCES OF IMPAIRING THE RIGHT TO TRIAL
BY JURY, 22 RUTGERS L. REV. 167, 189-190 (1967). 

/15/  OF COURSE, NO MALEVOLENT INTENT MAY BE ASCRIBED TO THE
PROSECUTION IN SEEKING THE DEATH PENALTY PRIOR TO ITS INVALIDATION IN
JACKSON.  THAT THE DEATH PENALTY COULD NOT HAVE BEEN EXACTED IN THE
INSTANT CASE IS , HOWEVER, MERELY A CONSEQUENCE OF THE RETROACTIVE
EFFECT OF JACKSON.  WHILE THE COURT DENIES THAT JACKSON AFFECTS THE
VALIDITY OF GUILTY PLEAS, SURELY THE COURT WOULD NOT INSIST THAT A
SENTENCE OF DEATH PRONOUNCED PRIOR TO OUR DECISION IN JACKSON COULD NOW
BE CARRIED OUT.  THE COURT'S POSITION, IF I HAVE ACCURATELY DESCRIBED
IT, DOES CONTAIN A CERTAIN PARADOXICAL ELEMENT.  THAT IS, ANY DEFENDANT
WHO RESISTED THE INDUCEMENTS OF THE JACKSON-DEFECTIVE PENALTY SCHEME,
RECEIVED A JURY TRIAL AND WAS SENTENCED TO DEATH, IS PRESUMABLY
ENTITLED TO RELIEF.  HOWEVER, THE DEFENDANT WHO SUCCUMBED TO THE
UNCONSTITUTIONAL INFLUENCE OF THAT SAME SCHEME AND PLEADED GUILTY IS
LEFT TO SUFFER THE CONSEQUENCES OF HIS ILLICITLY INDUCED PLEA.  WHILE
THE RELAXATION OF STRICT LOGIC MAY BE VIEWED SYMPATHETICALLY IF
NECESSARY TO PREVENT EXECUTIONS UNDER AN UNCONSTITUTIONAL PENALTY
SCHEME, I AM AT A LOSS TO UNDERSTAND WHAT VALUES ARE PRESERVED BY THE
CURIOUS INVERSION THE COURT HAS BROUGHT ABOUT. 

/16/  THE COURT APPARENTLY TAKES COMFORT FROM THE AUTHORITIES THAT
IT CITES FOR THE PROPOSITION THAT A GUILTY PLEA ENTERED TO AVOID A
POSSIBLE DEATH PENALTY IS NOT INVOLUNTARY.  (ANTE, AT 755-756, N. 14.) 
THIS RELIANCE IS MISPLACED.  IN THE FIRST INSTANCE, MOST OF THESE
AUTHORITIES ANTEDATE JACKSON AND THEREFORE WERE UNINSTRUCTED BY THAT
DECISION.  FOR EXAMPLE, IT DOES NOT APPEAR IN THOSE CASES WHETHER THE
CAPITAL PUNISHMENT SCHEME WAS DEFECTIVE UNDER JACKSON OR OTHERWISE
UNCONSTITUTIONAL.  IN THIS DISCUSSION, I DO NOT CONSIDER THE CASE OF A
DEATH PENALTY SCHEME THAT IS NOT UNCONSTITUTIONAL UNDER JACKSON. 

SECONDLY, SEVERAL CASES DECIDED SUBSEQUENTLY TO JACKSON TAKE THE
POSITION THAT A CONSTITUTIONALLY DEFECTIVE CAPITAL PENALTY SCHEME MAY
IMPERMISSIBLY INDUCE GUILTY PLEAS.  SEE, E.G., ALFORD V. NORTH
CAROLINA, 405 F.2D 340 (C.A. 4TH CIR. 1968), PROB.  JURIS.  NOTED, 394
U.S. 956 (1969), SET FOR REARGUMENT, POST, P. 1060; QUILLIEN V. LEEKE,
303 F.SUPP.  698 (D.C.S.C. 1969); WILSON V. UNITED STATES, 303 F.SUPP. 
1139 (D.C.^W.D.VA. 1969); SHAW V. UNTIED STATES, 299 F.SUPP.  824
(D.C.S.D.GA. 1969); BRELAND V. STATE, 253 S.C. 187, 169 S.E.2D 604
(1969).  SEE ALSO UNITED STATES EX REL. BROWN V. LAVALLEE, 424 F.2D 457
(C.A. 2D CIR. 1970); COMMONWEALTH V. HARGROVE, 434 PA. 393, 254 A.2D 22
(1969). 

/17/  SOPHISTIC ARGUMENTS CANNOT ALTER THE FACT THAT THIS IN
SUBSTANCE WAS THE EFFECT OF THE NORTH CAROLINA PENALTY SCHEME.  IT IS
CONTENDED BY NORTH CAROLINA, FOR EXAMPEL, THAT UNDER THE STATE STATUTES
THE ACTUAL PENALTY IMPOSED UPON CONVICTION WAS DEATH BUT THAT THE JURY
HAD THE POWER TO MITIGATE PUNISHMENT TO LIFE IMPRISONMENT.  UNDER THE
FEDERAL KIDNAPING ACT, SO THE ARGUMENT GOES, THE PENALTY UPON
CONVICTION WAS LIFE IMPRISONMENT, OR A TERM OF YEARS, BUT THE JURY HAD
THE POWER TO INCREASE THE SENTENCE BEYOND THAT WHICH THE TRIAL JUDGE
COULD IMPOSE, THEREBY "USURPING THE PROVINCE OF THE JUDGE IN SENTENCING
THE DEFENDANT."  THIS IS A DISTINCTION WITHOUT A DIFFERENCE.  THE
SIMPLE FACT IS THAT UNDER BOTH THE KIDNAPING ACT AND THE NORTH CAROLINA
SCHEME THE JURY ALONE, IN ITS UNFETTERED DISCRETION, COULD IMPOSE THE
DEATH SENTENCE.  IN BOTH INSTANCES THE DEFENDANT WAS PROMISED BY THE
LEGISLATURE COMPLETE INSULATION FROM THIS AWESOME POSSIBILITY IF HE
WOULD PLEAD GUILTY. 

/18/  SEE, E.G., STATE V. SPENCE, 275 N.C. 536, 164 S.E.2D 593
(1968); STATE V. PEELE, 274 N.C. 106, 161 S.E.2D 568 (1968). 

/19/  IN VIEW OF MY POSITION ON THE JACKSON ISSUE, I NEED NOT, IN
THIS CASE, REACH PARKER'S OTHER CONTENTIONS, IN PARTICULAR THAT HIS
GUILTY PLEA WAS THE PRODUCT OF HIS ALLEGEDLY COERCED CONFESSION.  I
WOULD DIRECT THAT PARKER'S ALLEGATIONS CONCERNING THE COERCED
CONFESSION BE CONSIDERED ON REMAND IN PROCEEDINGS NOT INCONSISTENT WITH
MY VIEWS AS EXPRESSED IN MCMANN V. RICHARDSON, ANTE, P. 775, DECIDED
THIS DAY. 

/20/  AS PREVIOUSLY NOTED, THE TRIAL JUDGE INDICATED THAT HE WOULD
NOT PERMIT BRADY TO BE TRIED WITHOUT A JURY.  SEE N. 8, SUPRA. 

NORMAN B. SMITH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS LARRY B. SITTON. 

JACOB L. SAFRON ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE ROBERT MORGAN, ATTORNEY GENERAL OF NORTH CAROLINA, AND
ANDREW A. VANORE, JR. 

JACK GREENBERG, JAMES M. NABRIT III, MICHAEL MELTSNER, NORMAN C.
AMAKER, CHARLES STEPHEN RALSTON, AND ANTHONY G. AMSTERDAM FILED A BRIEF
FOR ALBERT BOBBY CHILDS ET AL. AS AMICI CURIAE. 
..END :

















IN RE SPENCER, 397 U.S. 817 


       IN RE SPENCER

        ON APPEAL FROM THE SUPREME COURT OF LOUISIANA

        NO. 513.  ARGUED APRIL 28, 1970-- DECIDED MAY 4, 1970 


AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MELVIN L. WULF ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WAS ELEANOR HOLMES NORTON. 

NEIL DIXON ARGUED THE CAUSE FOR APPELLEE, WILLIAMS, JUDGE.  WITH HIM
ON THE BRIEF WERE JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA,
AND HERSCHEL M. DOWNS. 
..END :









BELL LINES, INC. V. UNITED STATES, 397 U.S. 818 


       BELL LINES, INC., ET AL. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF WEST VIRGINIA

NO. 893.  DECIDED MAY 4, 1970 


306 F.SUPP.  209, AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  AMERICAN FARM LINES V. BLACK BALL FREIGHT
SERVICE, ANTE, P. 532. 

HAROLD HERNLY, WILLIAM T. BROTHERTON, HARRY J. JORDAN, ROBERT S.
BURK, ROBERT R. REDMON, JAMES E. WILSON, EDWARD G. VILLALON, AND
CHARLES H. EPHRAIM FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
ROBERT W. GINNANE, FRITZ R. KAHN, AND NAHUM LITT FOR THE UNITED STATES
ET AL., AND A. ALVIS LAYNE FOR TRANSAMERICAN FREIGHT LINES, INC.,
APPELLEES. 
..END :




TEX TAN WELHAUSEN CO. V. NATIONAL LABOR RELATIONS BOARD, 397 U.S.
819 



       TEX TAN WELHAUSEN CO. EX AL. V. NATIONAL LABOR RELATIONS

           BOARD

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 1288.  DECIDED MAY 4, 1970 


CERTIORARI GRANTED; 419 F.2D 1265, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED, AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF H. K.
PORTER CO. V. NATIONAL LABOR RELATIONS BOARD, ANTE, P. 99. 

MR. JUSTICE DOUGLAS DISSENTS TO THE REMAND. 

THEO F. WEISS FOR PETITIONERS. 

SOLICITOR GENERAL GRISWOLD, ARNOLD ORDMAN, DOMINICK L. MANOLI,
NORTON J. COME, AND LINDA SHER FOR RESPONDENT. 

L. N. D. WELLS, JR., FOR AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN
OF NORTH AMERICA, AFL-CIO, INTERVENOR BELOW. 
..END :


















ROCKEFELLER V. CATHOLIC MEDICAL CENTER, 397 U.S. 820 


       ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL. V. CATHOLIC

           MEDICAL CENTER OF BROOKLYN & QUEENS, INC., DIVISION OF

           ST. MARY'S HOSPITAL ET AL.

 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF NEW YORK

        NO. 1379.  DECIDED MAY 4, 1970 


305 F.SUPP.  1268, VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT APPEALED FROM DOES NOT INCLUDE AN ORDER GRANGING OR
DENYING AN INTERLOCUTORY OR PERMANENT INJUNCTION AND IS THEREFORE NOT
APPEALABLE TO THIS COURT UNDER 28 U.S.C.1253.  SEE GOLDSTEIN V. COX,
396 U.S. 471.  THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE
CASE IS REMANDED TO THAT COURT SO THAT IT MAY BE TAKEN TO THE COURT OF
APPEALS.  SEE STAMLER V. WILLIS, 393 U.S. 407. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND GEORGE D. ZUCKERMAN,
AND LLOYD G. MILLIKEN, ASSISTANT ATTORNEYS GENERAL, FOR APPELLANTS. 

JAMES M. HARTMAN AND RICHARD L. EPSTEIN FOR APPELLEES. 
..END :


















JEFFERSON V. HACKNEY, COMM'R DEPT. OF PUBLIC WELFARE, 397 U.S. 821 


       JEFFERSON ET AL. V. HACKNEY, COMMISSIONER, DEPARTMENT OF

           PUBLIC WELFARE OF TEXAS, ET AL.

 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

       NORTHERN DISTRICT OF TEXAS

        NO. 1345, MISC.  DECIDED MAY 4, 1970 


304 F.SUPP.  1332, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PRUPERIS IS GRANTED.  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR FURTHER
CONSIDERATION IN LIGHT OF ROSADO V. WYMAN, ANTE, P. 397. 

ED. J. POLK AND CARL RACHLIN FOR APPELLANTS. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, PAT BAILEY, EXECUTIVE ASSISTANT ATTORNEY
GENERAL, AND W. O. SHULTZ II, ASSISTANT ATTORNEY GENERAL, FOR
APPELLEES. 
..END :























TOOAHNIPPAH V. HICKEL, 397 U.S. 598 


       TOOAHNIPPAH (GOOMBI), ADMINISTRATRIX, ET AL. V. HICKEL,

           SECRETARY OF THE INTERIOR, ET AL.

  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT. 

        NO. 300.  ARGUED JANUARY 14, 1970-- DECIDED APRIL 27, 1970 


TESTATOR, A COMANCHE INDIAN, LEFT HIS ESTATE CONSISTING OF INTERESTS
IN THREE COMANCHE ALLOTMENTS UNDER THE JURISDICTION OF THE DEPARTMENT
OF THE INTERIOR'S BUREAU OF INDIAN AFFAIRS, TO A NIECE AND HER
CHILDREN.  DECEDENT WAS SURVIVED BY A PUTATIVE MARRIED DAUGHTER, WITH
WHOM HE HAD NOT BEEN CLOSE.  PURSUANT TO 25 U.S.C. 373, WHICH REQUIRES
APPROVAL BY THE SECRETARY OF THE INTERIOR OF A WILL OF AN INDIAN
DEVISING ALLOTMENTS, A HEARING WAS HELD BEFORE AN EXAMINER OF
INHERITANCE.  HE FOUND THAT THE DAUGHTER WAS DECEDENT'S SOLE HEIR BUT
CONCLUDED THAT THE WILL SHOULD BE APPROVED AS IT WAS PROPERLY EXECUTED,
STATEMENTS OF THE DRAFTSMAN AND WITNESSES SHOWED THAT TESTATOR
POSSESSED TESTAMENTARY CAPACITY, AND FAILURE TO PROVIDE FOR THE
DAUGHTER WAS NOT UNNATURAL SINCE THERE HAD BEEN NO CLOSE RELATIONSHIP. 
THE REGIONAL SOLICITOR, ACTING FOR THE SECRETARY, UNDER A STANDARD TO
"MOST NEARLY ACHIEVE JUST AND EQUITABLE TREATMENT OF THE BENEFICIARIES
(UNDER THE WILL) AND THE DECEDENT'S HEIRS-AT-LAW," SET ASIDE THE
EXAMINER'S ACTION, AND ORDERED DISTRIBUTION TO THE DAUGHTER.  THE
BENEFICIARIES BROUGHT SUIT IN THE DISTRICT COURT, CONTENDING THAT THE
REGIONAL SOLICITOR'S ACTION EXCEEDED HIS AUTHORITY UNDER SEC. 373. 
THAT COURT HELD THAT THE ADMINISTRATIVE PROCEDURE ACT DOES NOT PRECLUDE
JUDICIAL REVIEW AND THAT THE REGIONAL SOLICITOR ERRED IN VIEWING THE
SECRETARY'S POWERS AS AUTHORIZING DISAPPROVAL OF ANY WILL THOUGHT
UNWISE OR INEQUITABLE.  THE COURT OF APPEALS REVERSED, HOLDING THE
SECRETARY'S ACTION UNDER SEC. 373 UNREVIEWABLE.  HELD: 

1.  THE SECRETARY'S DISAPPROVAL IS SUBJECT TO JUDICIAL REVIEW, AS
THERE IS NO LANGUAGE IN SEC. 373 (ENACTED AS SEC. 2 OF THE ACT OF JUNE
25, 1910) EVINCING AN INTENTION TO MAKE THE SECRETARY'S ACTION
UNREVIEWABLE, AND THE FINALITY LANGUAGE OF SEC. 1 OF THE 1910 ACT
CANNOT BE CARRIED OVER TO THE OTHER SECTIONS OF THAT ACT.  PP. 605
607. 

2.  WHATEVER MAY BE THE SCOPE OF THE SECRETARY'S POWER UNDER SEC.
373, THERE IS NOTHING IN THE STATUTE, ITS HISTORY, OR PURPOSE THAT
VESTS IN A GOVERNMENT OFFICIAL THE POWER TO REVOKE OR REWRITE A WILL
THAT REFLECTS A RATIONAL TESTAMENTARY SCHEME SIMPLY BECAUSE OF A
SUBJECTIVE FEELING THAT THE DISPOSITION WAS NOT "JUST AND EQUITABLE." 
ON THIS RECORD THE DISAPPROVAL WAS ARBITRARY AND CAPRICIOUS.  PP. 607
610. 

407 F.2D 394, REVERSED AND REMANDED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT TO REVIEW THE ACTION OF THE COURT OF APPEALS
HOLDING THAT THE DECISION OF THE REGIONAL SOLICITOR, ACTING FOR THE
SECRETARY OF THE INTERIOR, DISAPPROVING THE WILL OF A COMANCHE INDIAN
CONSTITUTES FINAL AND UNREVIEWABLE AGENCY ACTION.  WE CONCLUDE THAT
SUCH DECISION IS SUBJECT TO JUDICIAL REVIEW.  /1/ 

GEORGE CHAHSENAH, A COMANCHE INDIAN, DIED ON OCTOBER 11, 1963,
UNMARRIED AND WITHOUT A SURVIVING FATHER, MOTHER, BROTHER, OR SISTER. 
HIS ESTATE CONSISTED OF INTERESTS IN THREE COMANCHE ALLOTMENTS SITUATED
IN OKLAHOMA UNDER THE JURISDICTION OF THE BUREAU OF INDIAN AFFAIRS,
DEPARTMENT OF THE INTERIOR.  /2/  SHORTLY AFTER CHAHSENAH'S DEATH, THE
VALUE OF THOSE INTERESTS WAS FIXED AT $34,867.  ON MARCH 14, 1963,
CHAHSENAH HAD MADE A WILL DEVISING AND BEQUEATHING HIS ESTATE TO A
NIECE, VIOLA ATEWOOFTAKEWA TATE, AND HER THREE CHILDREN, THESE DEVISEES
OR THEIR REPRESENTATIVES BEING THE PETITIONERS HEREIN.  CHAHSENAH HAD
RESIDED WITH THIS NIECE A CONSIDERABLE PORTION OF THE LATER YEARS OF
HIS LIFE.  HIS WILL MADE NO MENTION OF A SURVIVING DAUGHTER, BUT STATED
THAT HE WAS LEAVING NOTHING TO THIS "HEIRS AT LAW . . . FOR THE REASON
THAT THEY HAVE SHOWN NO INTEREST IN ME." 

THE BENEFICIARIES UNDER THE WILL SOUGHT TO HAVE IT APPROVED BY THE
SECRETARY OF THE INTERIOR, AS REQUIRED BY 25 U.S.C. 373.  /3/  A
HEARING WAS HAD BEFORE AN EXAMINER OF INHERITANCE, OFFICE OF THE
SOLICITOR, DEPARTMENT OF THE INTERIOR.  DORITA HIGH HORSE, CLAIMING AS
SOLE SURVIVING ISSUE, AND CERTAIN NEICES AND NEPHEWS OF THE TESTATOR
CONTENDED THAT THE WILL WAS NOT ENTITLED TO DEPARTMENTAL APPROVAL,
ARGUING THAT DUE TO THE EFFECTS OF CHRONIC ALCOHOLISM, CIRRHOSIS OF THE
LIVER, AND DIABETES, GEORGE CHAHSENAH WAS INCOMPETENT TO MAKE A WILL. 
PURSUANT TO THE PROVISIONS OF SEC. 5 OF THE ACT OF FEBRUARY 28, 1891,
26 STAT. 795, 25 U.S.C. 371, IF CHAHSENAH HAD DIED INTESTATE HIS
PUTATIVE DAUGHTER DORITA HIGH HORSE, WOULD HAVE BEEN AN HEIR AT LAW,
WHETHER OR NOT HER PARENTS WERE MARRIED. 

THE EXAMINER FOUND THAT THE WILL OF MARCH 14, 1963, DRAWN ON A FORM
PRINTED BY THE DEPARTMENT OF THE INTERIOR FOR THAT PURPOSE, WAS
CHAHSENAH'S LAST WILL AND TESTAMENT AND THAT IT HAD BEEN PREPARED BY AN
ATTORNEY EMPLOYED BY THE DEPARTMENT OF THE INTERIOR WHO ADVISED THE
TESTATOR CONCERNING THE WILL.  HE ALSO FOUND THAT AT THE TIME THE WILL
WAS MADE THE ATTORNEY AND THE WITNESSES EXECUTED AN AFFIDAVIT ATTESTING
THAT THE WILL WAS PROPERLY MADE AND EXECUTED, AND THAT THE DECEDENT WAS
OF SOUND AND DISPOSING MIND AND MEMORY AND NOT ACTING UNDER UNDUE
INFLUENCE, FRAUD, DURESS, OR COERCION AT THE TIME OF ITS EXECUTION. 
THE EXAMINER FOUND THAT DORITA HIGH HORSE WAS GEORGE CHAHSENAH'S
ILLEGITIMATE DAUGHTER AND HIS SOLE HEIR AT LAW.  HE CONCLUDED, HOWEVER,
THAT THE EVIDENCE PRESENTED BY THE CONTESTANTS WAS NOT SUFFICIENT TO
OUTWEIGH THE PRESUMPTION OF CORRECTNESS ATTACHING TO A PROPERLY
EXECUTED WILL, IN ADDITION TO WHICH WERE THE INIMPEACHED STATEMENTS OF
THE DRAFTSMAN AND WITNESSES THAT CHAHSENAH POSSESSED TESTAMENTARY
CAPACITY.  THE EXAMINER CONCLUDED THAT THE TESTATOR'S FAILURE TO
PROVIDE FOR DORITA HIGH HORSE WAS NOT UNNATURAL SINCE THERE WAS NO
EVIDENCE OF ANY CLOSE RELATIONSHIP BETWEEN THE TWO DURING ANY PART OF
THEIR LIVES.  THE WILL WAS APPROVED AND DISTRIBUTION IN ACCORDANCE WITH
ITS PROVISIONS WAS ORDERED. 

A PETITION FOR REHEARING, CONTENDING THAT THE EVIDENCE DID NOT
SUPPORT THE EXAMINER'S CONCLUSION REGARDING THE DECEDENT'S COMPETENCY,
WAS DENIED.  AN APPEAL WAS TAKEN TO THE REGIONAL SOLICITOR, DEPARTMENT
OF THE INTERIOR, AN OFFICER HAVING AUTHORITY TO MAKE A FINAL DECISION
IN THE MATTER ON BEHALF OF THE SECRETARY.  HE CONCLUDED THAT ALTHOUGH
THE EVIDENCE SUPPORTED THE EXAMINER'S FINDING THAT DECEDENT'S WILL MET
THE TECHNICAL REQUIREMENTS FOR A VALID TESTAMENTARY INSTRUMENT, 25
U.S.C. 373 VESTED IN THE SECRETARY BROAD AUTHORITY TO APPROVE OR
DISAPPROVE THE WILL.  IN EXERCISING THAT DISCRETION, THE REGIONAL
SOLICITOR VIEWED HIS AUTHORITY AS REQUIRING HIM TO EXAMINE ALL THE
CIRCUMSTANCES TO DETERMINE WHETHER "APPROVAL WILL MOST NEARLY ACHIEVE
JUST AND EQUITABLE TREATMENT OF THE BENEFICIARIES THEREUNDER AND THE
DECEDENT'S HEIRS-AT-LAW."  UNDER THIS STANDARD HE CONCLUDED THAT THE
DECEDENT, AN UNEMPLOYED PERSON ADDICTED TO ALCOHOL /4/  AND LIVING ON
THE INCOME HE RECEIVED FROM HIS INHERITED LAND ALLOTMENTS, HAD NOT
FULFILLED HIS OBLIGATIONS TO HIS ILLEGITIMATE DAUGHTER AND HAD CEASED
COHABITING WITH HER MOTHER SHORTLY BEFORE DORITA'S BIRTH, THUS FAILING
TO PROVIDE HER WITH A "NORMAL HOME LIFE DURING HER CHILDHOOD."  THE
REGIONAL SOLICITOR CONCLUDED THAT ALTHOUGH THE DAUGHTER WAS A MARRIED
ADULT AND COULD NOT LEGALLY CLAIM SUPPORT MONIES FROM HER FATHER OR HIS
ESTATE, "IT IS INAPPROPRIATE THAT THE SECRETARY PERPETUATE THIS UTTER
DISREGARD FOR THE DAUGHTER'S WELFARE.  . . . "  ACCORDINGLY, HE FOUND
THAT UNDER THE CIRCUMSTANCES THE EXAMINER'S APPROVAL OF THE WILL WAS
NOT A REASONABLE EXERCISE OF THE DISCRETIONARY RESPONSIBILITY VESTED IN
THE SECRETARY.  HE THEREUPON SET ASIDE THE EXAMINER'S ACTION,
DISAPPROVED THE WILL, /5/  AND ORDERED THE ENTIRE ESTATE DISTRIBUTED BY
INTESTATE SUCCESSION TO DORITA HIGH HORSE AS SOLE HEIR AT LAW. 

THE BENEFICIARIES UNDER THE WILL BROUGHT AN ACTION AGAINST THE
SECRETARY OF THE INTERIOR IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA CONTENDING THAT THE ACTION OF THE REGIONAL
SOLICITOR WAS ARBITRARY, CAPRICIOUS, AND AN ABUSE OF DISCRETION, AND
THAT IT EXCEEDED THE AUTHORITY CONFERRED UPON THE SECRETARY BY 25
U.S.C. 373.  THE PLAINTIFFS SOUGHT TO HAVE THE DISTRICT COURT REVIEW
THE REGIONAL SOLICITOR'S ACTION IN ACCORD WITH THE STANDARDS OF THE
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 701-706 (1964 ED., SUPP. IV),
ARGUING THAT THE DISTRICT COURT HAD JURISDICTION OVER THE MATTER BY
VIRTUE OF EITHER THAT ACT /6/  OR 28 U.S.C. 1361.  /7/  DORITA HIGH
HORSE WAS ALLOWED TO INTERVENE AS A PARTY DEFENDANT.  BOTH THE
SECRETARY AND DORITA HIGH HORSE MOVED FOR SUMMARY JUDGMENT, CONTENDING
THAT THE ACTION OF THE REGIONAL SOLICITOR WAS WITHIN THE AUTHORITY
CONFERRED UPON THE SECRETARY, AND, AS SUCH, IS MADE FINAL AND
UNREVIEWABLE BY 25 U.S.C. 373.  THEY ALSO CONTENDED THAT THE REGIONAL
SOLICITOR'S DECISION WAS IN ACCORDANCE WITH THE EVIDENCE, WAS NOT
ARBITRARY OR CAPRICIOUS, AND DID NOT INVOLVE AN ABUSE OF DISCRETION. 
ALTHOUGH THE SECRETARY CONCEDED THAT THE DISTRICT COURT HAD
JURISDICTION TO REVIEW THE ACTION OF THE REGIONAL SOLICITOR, DORITA
HIGH HORSE CONTENDED THAT NEITHER THE ADMINISTRATIVE PROCEDURE ACT NOR
28 U.S.C. 1361 ALLOWED JUDICIAL REVIEW. 

THE DISTRICT COURT HELD THAT WHILE THERE WAS SOME QUESTION AS TO
WHETHER JURISDICTION EXISTED UNDER THE ADMINISTRATIVE PROCEDURE ACT, 28
U.S.C. 1361 DID PROVIDE A BASIS FOR JURISDICTION, "IN ORDER TO
EFFECTUATE THE PURPOSES OF THE ADMINISTRATIVE PROCEDURE ACT BY
PROVIDING THE REVIEW FUNCTION WHICH THE ACT CONTEMPLATES."  /8/  277
F.SUPP.  464, 465 N. 1.  THE COURT THEN REASONED THAT, UNLIKE SEC. 1 OF
THE ACT OF JUNE 25, 1910, 36 STAT. 855, 25 U.S.C. 372, /9/  SEC. 2, 36
STAT. 856, AS AMENDED BY THE ACT OF FEBRUARY 14, 1913, 37 STAT. 678, 25
U.S.C. 373, CONTAINS NO LANGUAGE CONFERRING UNREVIEWABLE FINALITY UPON
A DECISION OF THE SECRETARY APPROVING OR DISAPPROVING AN INDIAN'S
WILL.  THE DISTRICT JUDGE CONCLUDED THAT THE ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. 701 (1964 ED., SUPP. IV), DOES NOT PRECLUDE JUDICIAL
REVIEW OF THE REGIONAL SOLICITOR'S ACTION.  ON THE MERITS HE HELD THAT
CONGRESS HAD CONFERRED UPON ADULT INDIANS THE RIGHT TO MAKE A WILL,
LIMITED ONLY BY THE REQUIREMENT THAT IT BE APPROVED BY THE SECRETARY. 

THE DISTRICT COURT HELD THAT THE REVIEW POWERS OF THE SECRETARY ARE
NOT SO BROAD AS TO DEFEAT A PLAINLY EXPRESSED AND RATIONALLY BASED
DISTRIBUTION BY ONE WHO POSSESSED TESTAMENTARY CAPACITY.  THE COURT
CONCLUDED THAT THE REGIONAL SOLICITOR INCORRECTLY VIEWED THE
SECRETARY'S POWERS AS AUTHORIZING DISAPPROVAL OF ANY WILL THOUGHT
UNWISE OR INEQUITABLE, AND STATED:  "CONGRESS HAS CONFERRED THE RIGHT
TO MAKE A WILL UPON THE INDIAN AND NOT UPON THE SECRETARY.  THE
SECRETARY CAN NO MORE USE HIS APPROVAL POWERS TO SUBSTITUTE HIS WILL
FOR THAT OF THE INDIAN THAN HE CAN DICTATE ITS TERMS."  277 F.SUPP.,AT
468.  THE CASE WAS REMANDED TO THE SECRETARY WITH DIRECTIONS TO APPROVE
THE WILL AND DISTRIBUTE THE ESTATE IN ACCORDANCE WITH ITS PROVISIONS. 

ON APPEAL THE COURT OF APPEALS FOR THE TENTH CIRCUIT REVERSED THE
DISTRICT COURT, HOLDING THAT THE SECRETARY'S ACTION UNDER 25 U.S.C. 373
WAS UNREVIEWABLE.  /10/ 

TWO BASIC QUESTIONS ARE PRESENTED HERE:  FIRST, WHETHER THE
SECRETARY'S ACTION IS SUBJECT TO JUDICIAL REVIEW; AND SECOND, IF
JUDICIAL REVIEW IS AVAILABLE, WHETHER ON THIS RECORD THE SECRETARY'S
DECISION ON THE VALIDITY OF THE WILL WAS WITHIN THE SCOPE OF AUTHORITY
VESTED IN HIM UNDER 25 U.S.C. 373. 

        I 

THE ADMINISTRATIVE PROCEDURE ACT CONTEMPLATES JUDICIAL REVIEW OF
AGENCY ACTION "EXCEPT TO THE EXTENT THAT-- (1STATUTES PRECLUDE JUDICIAL
REVIEW; OR (2) AGENCY ACTION IS COMMITTED TO AGENCY DISCRETION BY LAW. 
. . . "  5 U.S.C. 701 (1964 ED., SUPP. IV).  EARLIER IN THIS TERM IN
CITY OF CHICAGO V. UNITED STATES, 396 U.S. 162, 164 (1969), RELYING ON
ABBOTT LABORATORIES V. GARDNER, 387 U.S. 136, 140 (1967), WE NOTED THAT
"WE START WITH THE PRESUMPTION THAT AGGREIVED PERSONS MAY OBTAIN REVIEW
OF ADMINISTRATIVE DECISIONS UNLESS THATE IS 'PERSUASIVE REASON TO
BELIEVE'  THAT CONGRESS HAD NOT SUCH PURPOSE."  /11/  SECTION 2 OF THE
ACT OF 1910 CONTAINS NO LANGUAGE DISPLAYING A CONGRESSIONAL INTENTION
TO MAKE UNREVIEWABLE THE SECRETARY'S APPROVAL OR DISAPPROVAL OF AN
INDIAN'S WILL. 

THE RESPONDENTS ARGUE THAT WE SHOULD FOLLOW THE COURSE TAKEN BY THE
COURT OF APPEALS, READING INTO SEC. 2 THE LANGUAGE OF THE FIRST SECTION
OF THE 1910 ACT, WHICH DECLARES THAT THE SECRETARY'S DECISIONS
ASCERTAINING THE LEGAL HEIRS OF DECEASED INDIANS ARE "FINAL AND
CONCLUSIVE."  CF. FIRST MOON V. WHITE TAIL, 270 U.S. 243, 244 (1926). 
THE RESPONDENTS CONTEND THAT SECS. 1 AND 2 OF THE 1910 ACT MUST BE READ
IN PARI MATERIA BECAUSE BOTH DEAL WITH THE SECRETARY'S POWER OVER THE
DEVOLUTION OF LANDS HELD IN TRUST BY THE UNITED STATES AND BOTH VEST IN
THE SECRETARY BROAD MANAGERIAL AND SUPERVISORY POWER OVER ALLOTTED
LANDS. 

WE FIND THIS UNPERSUASIVE.  FIRST, WHILE SEC. 1 OF THE 1910 ACT
APPLIES ONLY TO INDIANS POSSESSED OF ALLOTMENTS, SEC. 2, AS AMENDED IN
1913, ALSO APPLIES TO ALL INDIANS HAVING INDIVIDUAL INDIAN MONIES OR
OTHER PROPERTIES HELD IN TRUST BY THE UNITED STATES.  THUS, THE
COVERAGE OF THESE SECTIONS IS NOT IDENTICAL.  SECOND, THE 1910 ACT IS
COMPOSED OF SOME 33 SECTIONS, VIRTUALLY ALL OF WHICH DEAL WITH THE
SECRETARY'S MANAGERIAL AND SUPERVISORY POWERS OVER INDIAN LANDS.  MANY
OF THESE PROVISIONS VEST IN THE SECRETARY DISCRETIONARY AUTHORITY.  FOR
EXAMPLE, SEC. 3 OF THE ACT PERMITS TRANSFERS OF BENEFICIAL OWNERSHIP OF
ALLOTMENTS BY PROVIDING THAT ALLOTTEES CAN RELINQUISH ALLOTMENTS TO
THEIR UNALLOTED CHILDREN IF THE SECRETARY "IN HIS DISCRETION"
APPROVES.  25 U.S.C. 408.  YET NEITHER THIS SECTION NOR ANY OF THE
OTHERS IN THE ENACTMENT CONTAINS LANGUAGE CLOAKING THE SECRETARY'S
ACTIONS WITH IMMUNITY FROM JUDICIAL REVIEW.  IF THE RESPONDENTS'
POSITION WERE ACCEPTED AND WE IMPLIED THE FINALITY LANGUAGE OF SEC. 1
INTO SEC. 2, IT WOULD BE DIFFICULT TO JUSTIFY ON A READING OF THE
STATUTE A LATER REFUSAL TO EXTEND THE "FINAL AND CONCLUSIVE" CALUSE TO
OTHER SECTIONS, SUCH AS SEC. 3.  CONGRESS QUITE PLAINLY STATED THAT THE
SECRETARY'S ACTION UNDER SEC. 1 WAS NOT TO BE SUBJECT TO JUDICIAL
SCRUTINY.  SIMILAR LANGUAGE IN SEC. 2 WOULD HAVE MADE CLEAR THAT
CONGRESS DESIRED TO WORK A LIKE RESULT UNDER THAT SECTION.  CF. CITY OF
CHICAGO V. UNITED STATES, SUPRA.

        II. 

THE REGIONAL SOLICITOR ACCEPTED THE FINDINGS AND CONCLUSIONS OF THE
EXAMINER OF INHERITANCE THAT THE TESTATOR HAD TESTAMENTARY CAPACITY
WHEN HE EXECUTED THE INSTRUMENT, THAT HE WAS NOT UNDULY INFLUENCED IN
ITS EXECUTION, AND THAT IT WAS EXECUTED IN COMPLIANCE WITH THE
PRESCRIBED FORMALITIES.  THIS REMOVES FROM THE CASE BEFORE US ALL
QUESTIONS EXCEPT THE SCOPE OF THE SECRETARY'S POWER TO GRANT OR
WITHHOLD APPROVAL OF THE INSTRUMENT UNDER 25 U.S.C. 373. 

THE REGIONAL SOLICITOR'S VIEW OF THE SCOPE OF THE SECRETARY'S POWER
IS REFLECTED IN HIS STATEMENT: 

"WHEN A PURPORTED WILL IS SUBMITTED FOR APPROVAL AND IT HAS BEEN
DETERMINED THAT IT MEETS THE TECHNICAL REQUIREMENTS FOR A VALID WILL,
FURTHER CONSIDERATION MUST BE GIVEN BEFORE APPROVING OR DISAPPROVING IT
TO DETERMINE WHETHER APPROVAL WILL MOST NEARLY ACHIEVE JUST AND
EQUITABLE TREATMENT OF THE BENEFICIARIES THEREUNDER AND THE DECEDENT'S
HEIRS-AT-LAW."  APP. 84-85. 

THE BASIS OF THE REGIONAL SOLICITOR'S ACTION EMERGES MOST CLEARLY
FROM HIS RELIANCE ON THE LEGAL RELATIONSHIP OF THE TESTATOR TO HIS
DAUGHTER AND HIS FAILURE TO SUPPORT HER.  FROM THIS HE CONCLUDED THAT
FAILURE TO PROVIDE FOR THE DAUTHER IN THE WILL DID NOT MEET THE JUST
AND EQUITABLE "STANDARD" THAT HE CONSIDERED THE SECRETARY WAS
AUTHORIZED TO APPLY IN PASSING ON AN INDIAN WILL.  THE REGIONAL
SOLICITOR RELATED THE FAILURE TO SUPPORT THE DAUGHTER IN HER CHILDHOOD
TO THE ABSENCE OF PROVISION FOR HER IN THE WILL AND DECLARED THAT THE
DECEDENT "HAD AN OBLIGATION TO HIS DAUGHTER WHICH WAS NOT DISCHARGED
EITHER DURING HIS LIFETIME OR UNDER THE TERMS OF THE PURPORTED WILL. 
FOR THIS REASON IT IS INAPPROPRIATE THAT THE SECRETARY PERPETUATE THIS
UTTER DISREGARD FOR THE DAUGHTER'S WELFARE.  . . . "  WHILE THUS
STRESSING THE NATURAL TIES WITH DORITA HIGH HORSE, THE REGIONAL
SOLICITOR NEITHER CHALLENGED NOR GAVE WEIGHT TO THE PREDICATE OF THE
EXAMINER'S DETERMINATION WHICH WAS THAT THE DECEDENT HAD A CLOSE AND
SUSTAINED FAMILIAL RELATIONSHIP WITH HIS NIECE AND HAD RESIDED IN HER
HOME, WHILE, IN CONTRAST, HE HAD VIRTUALLY NO CONTACT WITH HIS NATURAL
DAUGHTER. 

TO SUSTAIN THE ADMINISTRATIVE ACTION PERFORMED ON BEHALF OF THE
SECRETARY WOULD, ON THIS RECORD, BE TANTAMOUNT TO HOLDING THAT A PUBLIC
OFFICER CAN SUBSTITUTE HIS PREFERENCE FOR THAT OF AN INDIAN TESTATOR. 
WE NEED NOT HERE UNDERTAKE TO SPELL OUT THE SCOPE OF THE SECRETARY'S
POWER, BUT WE CANNOT ASSUME THAT CONGRESS, IN GIVING TESTAMENTARY POWER
TO INDIANS RESPECTING THEIR ALLOTTED PROPERTY WITH THE ONE HAND, WAS
TAKING THAT POWER AWAY WITH THE OTHER BY VESTING IN THE SECRETARY THE
SAME DEGREE OF AUTHORITY TO DISAPPROVE SUCH A DISPOSITION.  /12/ 

IN REACHING OUR CONCLUSIONS THAT IT IS NOT NECESSARY TO ACCEPT THE
CONTENTION OF THE PETITIONERS THAT THE SECRETARY'S AUTHORITY IS
NARROWLY LIMITED TO PASSING ON THE FORMAL SUFFICIENCY OF A DOCUMENT
CLAIMED TO BE A WILL.  THE POWER TO MAKE TESTAMENTARY DISPOSITIONS
ARISES BY STATUTE; HERE WE DEAL WITH A SPECIAL KIND OF PROPERTY RIGHT
UNDER ALLOTMENTS FROM THE GOVERNMENT.  THE RIGHT IS NOT ABSOLUTE; THE
ALLOTTEE IS THE BENEFICIAL OWNER WHILE THE GOVERNMENT IS TRUSTEE.  25
U.S.C. 348.  THE INDIAN'S RIGHT TO MAKE INTER VIVOS DISPOSITIONS IS
LIMITED AND REQUIRES APPROVAL OF THE SECRETARY.  THE LEGISLATIVE
HISTORY REFLECTS THE CONCERN OF THE GOVERNMENT TO PROTECT INDIANS FROM
IMPROVIDENT ACTS OR EXPLOITATION BY OTHERS, AND COMPREHENSIVE
REGULATIONS GOVERN THE PROCESS OF SUCH INTER VIVOS DISPOSITIONS.  NO
COMPARABLE REGULATIONS GOVERN THE RIGHT TO MAKE TESTAMENTARY
DISPOSITIONS, AND FROM THIS ONE MIGHT ARGUE THAT THE POWER OF AN INDIAN
RELATING TO TESTAMENTARY DISPOSITION OF ALLOTTED PROPERTY IS
UNINHIBITED.  THE LEGISLATIVE HISTORY ON THIS SCORE IS PERHAPS NO MORE
OR LESS RELIABLE AN INDICATOR OF WHAT CONGRESS INTENDED THAN IS USUAL
WHEN THE SCOPE OF ADMINISTRATIVE DISCRETION IS IN QUESTION. 

WHATEVER MAY BE THE SCOPE OF THE SECRETARY'S POWER TO GRANT OR
WITHHOLD APPROVAL OF A WILL UNDER 25 U.S.C. 373, WE PERCEIVE NOTHING IN
THE STATUTE OR ITS HISTORY OR PURPOSE THAT VESTS IN A GOVERNMENTAL
OFFICIAL THE POWER TO REVOKE OR REWRITE A WILL THAT REFLECTS A RATIONAL
TESTAMENTARY SCHEME WITH A PROVISION FOR A RELATIVE WHO BEFRIENDED THE
TESTATOR AND OMISSION OF ONE WHO DID NOT, SIMPLY BECAUSE OF A
SUBJECTIVE FEELING THAT THE DISPOSITION OF THE ESTATE WAS NOT "JUST AND
EQUITABLE."  THE REGIONAL SOLICITOR'S ACTION WAS BASED ON NOTHING MORE
THAT WE CAN DISCERN THAN HIS CONCEPT OF EQUITY AND IN OUR VIEW THIS WAS
NOT THE KIND OR DEGREE OF DISCRETION CONGRESS VESTED IN HIM.  CF.
ATTOCKNIE V. UDALL, 261 F.SUPP.  876 (D.C.W.D. OKLA. 1966), REVERSED ON
OTHER GROUNDS, 390 F.2D 636 (C.A. 10TH CIR.), CERT. DENIED, 393 U.S.
833 (1968). 

THE SECRETARY'S TASK IS NOT ALWAYS AN EASY ONE AND PERHAPS IS
RENDERED MORE DIFFICULT BY THE ABSENCE OF REGULATIONS GIVING
GUIDELINES.  IT IS NOT DIFFICULT TO CONCEIVE OF DISPOSITIONS SO LACKING
IN RATIONAL BASIS THAT THE SECRETARY'S APPROVAL COULD REASONABLY BE
WITHHELD UNDER SEC. 373 EVEN THOUGH THE SAME SCHEME OF DISPOSITION BY A
NON-INDIAN OF UNRESTRICTED PROPERTY MIGHT PASS MUSTER IN A CONVENTIONAL
PROBATE PROCEEDING; ON THIS RECORD, HOWEVER, WE SEE NO BASIS FOR THE
DECISION OF THE REGIONAL SOLICITOR AND MUST HOLD IT ARBITRARY AND
CAPRICIOUS.  THERE BEING NO SUGGESTION THAT THE RECORD NEED OR COULD BE
SUPPLEMENTED BY ADDED FACTUAL MATERIAL, THE CASE IS REMANDED TO THE
COURT OF APPEALS WITH DIRECTIONS TO REINSTATE THE JUDGMENT OF THE
DISTRICT COURT. 

              REVERSED AND REMANDED. 

MR. JUSTICE BLACK, FOR THE REASONS SET FORTH BY THE COURT OF APPEALS
IN THIS CASE, 407 F.2D 394, AND IN HEFFELMAN V. UDALL, 378 F.2D 109
(C.A. 10TH CIR. 1967), WOULD AFFIRM THE JUDGMENTS BELOW. 

/1/  THE COURT OF APPEALS DECISION, WHICH HELD THAT THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA HAD ERRED IN
REVIEWING THE REGIONAL SOLICITOR'S ACTION, IS REPORTED AS HIGH HORSE V.
TATE, 407 F.2D 394. 

/2/  THE GENERAL ALLOTMENT ACT OF FEBRUARY 8, 1887, 24 STAT. 388, AS
AMENDED BY ACT OF FEBRUARY 28, 1891, 26 STAT. 794, AS AMENDED BY ACT OF
JUNE 25, 1910, 36 STAT. 855, 25 U.S.C. 331 ET SEQ., PROVIDES, INTER
ALIA, FOR THE ALLOTMENT TO INDIVIDUAL INDIANS OF PARCELS OF LAND.  THE
TITLE TO THESE LANDS IS HELD BY THE UNITED STATES IN TRUST FOR THE
ALLOTTEE, OR HIS HEIRS, DURING THE TRUST PERIOD, OR ANY EXTENSION
THEREOF.  CHAHSENAH HAD INHERITED THE INTERESTS HE HELD AT HIS DEATH. 

/3/  SECTION 2 OF THE ACT OF JUNE 25, 1910, 36 STAT. 856, AS AMENDED
BY ACT OF FEBRUARY 14, 1913, 37 STAT. 678, 25 U.S.C. 373, PROVIDES IN
PERTINENT PART: 

"ANY PERSONS OF THE AGE OF TWENTY-ONE YEARS HAVING ANY RIGHT, TITLE,
OR INTEREST IN ANY ALLOTMENT HELD UNDER TRUST OR OTHER PATENT
CONTAINING RESTRICTIONS ON ALIENATION OR INDIVIDUAL INDIAN MONEYS OR
OTHER PROPERTY HELD IN TRUST BY THE UNITED STATES SHALL HAVE THE RIGHT
PRIOR TO THE EXPIRATION OF THE TRUST OR RESTRICTIVE PERIOD, AND BEFORE
THE ISSUANCE OF A FEE SIMPLE PATENT OR THE REMOVAL OF RESTRICTIONS, TO
DISPOSE OF SUCH PROPERTY BY WILL, IN ACCORDANCE WITH REGULATIONS TO BE
PRESCRIBED BY THE SECRETARY OF THE INTERIOR:  PROVIDED, HOWEVER, THAT
NO WILL SO EXECUTED SHALL BE VALID OR HAVE ANY FORCE OR EFFECT UNLESS
AND UNTIL IT SHALL HAVE BEEN APPROVED BY THE SECRETARY OF THE INTERIOR:
PROVIDED FURTHER, THAT THE SECRETARY OF THE INTERIOR MAY APPROVE OR
DISAPPROVE THE WILL EITHER BEFORE OR AFTER THE DEATH OF THE TESTATOR. 
. . . PROVIDED ALSO, THAT THIS SECTION AND SECTION 372 OF THIS TITLE
SHALL NOT APPLY TO THE FIVE CIVILIZED TRIBES OR THE OSAGE INDIANS." 

/4/  REFERENCE TO CHAHSENAH'S SUPPOSED ALCOHOL ADDICTION CARRIES AN
INTIMATION THAT THE REGIONAL SOLICITOR SAW SOME WANT OF TESTAMENTARY
CAPACITY, A NOTION CONTRARY TO HIS APPROVAL OF THE EXAMINER'S FINDING
OF TESTAMENTARY CAPACITY AND ABSENCE OF UNDUE INFLUENCE. 

/5/  THE REGIONAL SOLICITOR GRATUITOUSLY VOLUNTEERED THAT IF ANY OF
THE FIVE PREVIOUS WILLS MADE BY THE TESTATOR BETWEEN 1956 AND 1963 WERE
PRESENTED HE WOULD DISAPPROVE THEM BECAUSE THEY MADE NO PROVISION FOR
DORITA HIGH HORSE.  THE RECORD DISCLOSES NO INQUIRY BY HIM INTO THE
CIRCUMSTANCES OF THE EXECUTION OF THOSE WILLS, THE TESTATOR'S STATE OF
HEALTH AT THE TIME OF THEIR EXECUTION OR HIS REASONS FOR OMITTING
PROVISION FOR DORITA HIGH HORSE. 

/6/  THE PLAINTIFFS SUPPORTING THE WILL APPEAR TO HAVE RELIED UPON 5
U.S.C. 702 (1964 ED., SUPP. IV), WHICH PROVIDES: 

"A PERSON SUFFERING LEGAL WRONG BECAUSE OF AGENCY ACTION, OR
ADVERSELY AFFECTED OR AGGRIEVED BY AGENCY ACTION WITHIN THE MEANING OF
A RELEVANT STATUTE, IS ENTITLED TO JUDICIAL REVIEW THEREOF." 

/7/  28 U.S.C. 1361 PROVIDES: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY ACTION
IN THE NATURE OF MANDAMUS TO COMPEL AN OFFICER OR EMPLOYEE OF THE
UNITED STATES OR ANY AGENCY THEREOF TO PERFORM A DUTY OWED TO THE
PLAINTIFF." 

/8/  WE EXPRESS NO OPINION AS TO THE CORRECTNESS OF THIS
DETERMINATION.  THE COMPLAINT ALLEGED THAT THE AMOUNT IN DISPUTE WAS IN
EXCESS OF $10,000, EXCLUSIVE OF INTEREST AND COSTS, AND THAT THE
DISPUTE AROSE UNDER THE LAWS OF THE UNITED STATES.  INDEPENDENTLY OF
THE DISTRICT COURT'S RULING, IT HAD JURISDICTION OVER THE COMPLAINT
UNDER 28 U.S.C. 1331.  CF. MACHINISTS V. CENTRAL AIRLINES, 372 U.S.
682, 685 N. 2 (1963); AFL V. WATSON, 327 U.S. 582, 589-591 (1946). 

/9/  THAT SECTION PROVIDES IN PERTINENT PART: 

"WHEN ANY INDIAN TO WHOM AN ALLOTMENT OF LAND HAS BEEN MADE, OR MAY
HEREAFTER BE MADE, DIES BEFORE THE EXPIRATION OF THE TRUST PERIOD AND
BEFORE THE ISSUANCE OF A FEE SIMPLE PATENT, WITHOUT HAVING MADE A WILL
DISPOSING OF SAID ALLOTMENT AS HEREINAFTER PROVIDED, THE SECRETARY OF
THE INTERIOR, UPON NOTICE AND HEARING, UNDER SUCH RULES AS HE MAY
PRESCRIBE, SHALL ASCERTAIN THE LEGAL HEIRS OF SUCH DECEDENT, AND HIS
DECISION THEREON SHALL BE FINAL AND CONCLUSIVE.  . . . " 

/10/  THERE IS A CONFLICT IN THE CIRCUITS ON THIS POINT.  COMPARE
HAYES V. SEATON, 106 U.S.APP.D.C. 126, 128, 270 F.2D 319, 321 (1959);
HOMOVICH V. CHAPMAN, 89 U.S.APP.D.C. 150, 153, 191 F.2D 761, 764
(1951); WITH HEFFELMAN V. UDALL, 378 F.2D 109 (C.A. 10TH CIR.), CERT.
DENIED, 389 U.S. 926 (1967); ATTOCKNIE V. UDALL, 390 F.2D 636 (C.A.
10TH CIR.), CERT. DENIED, 393 U.S. 833 (1968). 

/11/  SEE ALSO ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS
V. CAMP, ANTE, P. 150; BARLOW V. COLLINS, ANTE, P. 159. 

/12/  THIS IS BORNE OUT BY THE SECRETARY'S INTERPRETATION OF SEC.
373 IN AN ARGUABLE "IMPROVIDENT" TESTAMENTARY DISPOSITION.  AS TO A
WILL NAMING A CAUCASIAN AS A BENEFICIARY, A MEMORANDUM, DATED MAY 10,
1941, FROM THE SOLICITOR'S OFFICE TO THE ASSISTANT SECRETARY OF THE
INTERIOR, STATED, INTER ALIA, 

"WHATEVER DISCRETION THE SECRETARY MAY HAVE IN THE MATTER OF
APPROVING OR DISAPPROVING THE WILL, IT IS CLEAR THAT THIS DISCRETION
SHOULD NOT BE EXERCISED TO THE EXTENT OF SUBSTITUTING HIS WILL FOR THAT
OF THE TESTATOR.  . . . " 

MR. JUSTICE HARLAN, CONCURRING. 

THE COURT'S OPINION HAS TWO ASPECTS:  FIRST, THAT THE SECRETARY OF
THE INTERIOR'S APPROVAL OR DISAPPROVAL OF A WILL DISPOSING OF
RESTRICTED INDIAN PROPERTY IS SUBJECT TO JUDICIAL REVIEW IN A FEDERAL
COURT.  SECOND, THAT THE SECRETARY'S ACTION DISAPPROVING THE DECEDENT'S
WILL IN THE CIRCUMSTANCES OF THIS CASE WAS NOT A VALID EXERCISE OF THE
AUTHORITY VESTED IN HIM BY THE FIRST PROVISO OF 25 U.S.C. 373.  /1/  I
JOIN THE COURT'S OPINION IN BOTH RESPECTS; BUT I DEEM IT APPROPRIATE TO
AMPLIFY THE REASONS GIVEN BY THE COURT FOR ITS SECOND CONCLUSION. 

FROM THE FACTS STATED IN THE COURT'S OPINION, I THINK THE ISSUE
PRESENTED BY THE MERITS OF THIS CASE CAN FAIRLY BE CHARACTERIZED AS
FOLLOWS:  WHEN THERE IS NO EVIDENCE OF FRAUD, DURESS, OR UNDUE
INFLUENCE, WHEN THE DECEDENT IS OF SOUND AND DISPOSING MIND, WHEN THERE
IS A RATIONAL BASIS FOR THE DECEDENT'S DISPOSITION, AND WHEN THE WILL
MEETS ALL THE TECHNICAL REQUIREMENTS OF THE SECRETARY'S REGULATIONS,
DOES THE PROVISO OF 25 U.S.C. 373 AUTHORIZE THE SECRETARY OF THE
INTERIOR OR HIS DELEGATE TO WITHHOLD APPROVAL OF AN INDIAN WILL SIMPLY
BECAUSE HE CONCLUDES, IN THE ABSENCE OF ANY STANDARDS OF GENERAL
APPLICABILITY, THAT THE DISTRIBUTION PURSUANT TO THE WILL DOES NOT
"MOST NEARLY ACHIEVE JUST AND EQUITABLE TREATMENT OF THE BENEFICIARIES
THEREUNDER AND THE DECEDENT'S HEIRS-AT-LAW"? 

AS THE COURT'S OPINION SUGGESTS, THE PETITIONERS WOULD HAVE US
DECIDE THIS ISSUE BY HOLDING THAT THE SECRETARY CAN DO NO MORE UNDER
SEC. 373 THAN SEE TO IT THAT THE VARIOUS TECHNICAL REQUIREMENTS OF A
VALID TESTAMENTARY INSTRUMENT HAVE BEEN MET.  NOTHING IN THE LANGUAGE
OF THE STATUTE WOULD PREVENT SUCH A CONSTRUCTION, AND AS A WAY OF
PREVENTING ANY POSSIBILITY OF ARBITRARY BUREAUCRATIC ACTION TO BE
UNDERTAKEN IN THE NAME OF PATERNALISM THERE IS MUCH TO COMMEND IT.  I
THINK THE PETITIONERS' CLAIM MUST BE REJECTED, HOWEVER, BECAUSE BOTH
THE STATUTORY NETWORK RELATING TO THE RESTRICTIONS ON ALLOTTED LANDS
(OF WHICH SEC. 373 IS ONLY A PART) AND THE LEGISLATIVE HISTORY OF SEC.
373 ITSELF, SUGGEST THE SECRETARY'S ROLE WAS NOT TO BE THAT LIMITED. 
NEVERTHELESS, LIKE THE COURT, I CONCLUDE THAT THE SECRETARY IS NOT
EMPOWERED TO DISAPPROVE A WILL SIMPLY ON THE BASIS OF AN AD HOC
DETERMINATION THAT IT IS UNFAIR.  IN REACHING THIS CONCLUSION, ALTHOUGH
THE COURT'S REASONING AND MY OWN ARE PARALLEL IN SIGNIFICANT RESPECTS,
I THINK IT HELPFUL FOR PURPOSES OF ANALYSIS TO ELABORATE IN SOMEWHAT
GREATER DETAIL THAN THE COURT FINDS NECESSARY THE BACKGROUND OF THE
ALLOTMENT SYSTEM, THE LEGISLATIVE HISTORY OF SEC. 373, AND THE
ADMINISTRATIVE PRACTICE OF THE DEPARTMENT OF THE INTERIOR IN
ADMINISTERING INDIAN WILLS. 

AS RESTRICTED INDIAN PROPERTY.  THIS PROPERTY CONSISTS PRIMARILY OF
BENEFICIAL INTERESTS IN LAND ALLOTMENTS HELD IN TRUST BY THE GOVERNMENT
FOR INDIVIDUAL INDIANS.  UNDER THE ALLOTMENT SYSTEM ESTABLISHED BY THE
DAWES ACT IN 1887, 24 STAT. 388, AN ELIGIBLE INDIAN WAS GIVEN A
PROPERTY INTEREST IN A SPECIFIC TRACT OF LAND.  ALTHOUGH THE ALLOTTEE
WAS ORDINARILY GIVEN POSSESSORY RIGHTS TO THE LAND, HIS INTEREST WAS
NOT A FEE SIMPLE.  INSTEAD, THE LAND IS HELD IN TRUST BY THE UNITED
STATES FOR THE BENEFIT OF THE PARTICULAR INDIAN, 25 U.S.C. 348.  SEE 25
U.S.C. 331-358. 

AS LONG AS THE LEGAL TITLE TO THE LAND IS HELD IN TRUST, THERE ARE
DRASTIC RESTRICTIONS ON THE ALIENABILITY OF THESE ALLOTMENT INTERESTS. 
/2/  IN FACT, 25 U.S.C. 348 BROADLY STATES THAT ANY "CONVEYANCE" OF AN
ALLOTMENT HELD IN TRUST, OR ANY "CONTRACT" AFFECTING THAT LAND, "SHALL
BE ABSOLUTELY NULL AND VOID."  MOREOVER, IT IS A CRIME FOR "ANY PERSON
TO INDUCE ANY INDIAN TO EXECUTE ANY CONTRACT, DEED, MORTGAGE . . .
PURPORTING TO CONVEY ANY LAND . . . HELD BY THE UNITED STATES IN TRUST
FOR SUCH INDIAN," 25 U.S.C. 202.  UNDER AN ELABORATE REGULATORY SCHEME,
IT IS ONLY BY SECURING THE PRIOR APPROVAL OF THE SECRETARY OF THE
INTERIOR THAT SOMEONE LIKE GEORGE CHAHSENAH, THE DECEDENT HERE, COULD
SELL, MORTGAGE, OR GIVE AWAY HIS RESTRICTED ALLOTMENTS.  /3/  THESE
SUBSTANTIAL RESTRICTIONS ON THE FREE ALIENABILITY OF ALLOTTED LANDS
SUGGEST THAT, IN MAKING THE SECRETARY'S APPROVAL A CONDITION FOR THE
VALIDITY OF A WILL DISPOSING OF THESE LANDS, CONGRESS DID NOT MEAN TO
FORECLOSE THE POSSIBILITY THAT THE SECRETARY MIGHT DO MORE THAN SIMPLY
SEE THAT THE WILL HAD THE REQUISITE NUMBER OF WITNESSES, AND THAT THE
TESTATOR HAD THE CAPACITY TO MAKE A WILL.     WHAT LITTLE LEGISLATIVE
HISTORY THERE IS FOR SEC. 373-- AND THERE IS VERY LITTLE-- ALSO SU
GESTS THAT THE SECRETARY WAS GIVEN BROADER POWERS THAN A STATE PROBATE
JUDGE.  SECTION 373 HAS ITS ORIGINS IN A 1910 "OMNIBUS" INDIAN BILL, 36
STAT. 855-863.  THIS BILL WAS A POTPOURRI OF PROVISIONS, FOR THE MOST
PART UNRELATED TO THE DEVOLUTION OF ALLOTTED LANDS.  HOWEVER, SEC. 2 OF
THE BILL, 36 STAT. 856, GAVE TO THE INDIAN, FOR THE FIRST TIME, THE
POWER TO DISPOSE OF HIS RESTRICTED ALLOTMENTS BY WILL, /4/  RATHER THAN
SIMPLY HAVING THE ALLOTMENTS DESCEND TO HIS HEIRS BY THE OPERATION OF
LAW.  /5/  THE ORIGINS OF SEC. 2 ARE RATHER OBSCURE, AND ONLY THE HOUSE
COMMITTEE REPORT ON THE OMNIBUS BILL EVEN REFERS TO SEC. 2 AND THEN
ONLY IN DESCRIPTIVE TERMS.  /6/ 

EVEN THOUGH THE COMMITTEE REPORTS PROVIDE NO INDICATION OF THE
SECRETARY'S POWERS UNDER THE PROVISO OF SEC. 373, THERE WAS ONE
EXCHANGE ON THE FLOOR OF THE HOUSE IN WHICH CONGRESSMAN BURKE, THE
SPONSOR OF THE OMNIBUS BILL, DOES STRONGLY SUGGEST THAT HE AT LEAST
ENVISIONED THE ROLE OF THE SECRETARY UNDER SEC. 373 TO EXTEND BEYOND
SIMPLY SEEING THAT THE WILL MET ALL THE FORMAL REQUIREMENTS OF A VALID
TESTAMENTARY INSTRUMENT.  THIS EXCHANGE BETWEEN CONGRESSMAN BURKE AND
CONGRESSMAN COX OF INDIANA WENT AS FOLLOWS: 

     "MR. COX OF INDIANA.  MR. CHAIRMAN, WHAT IS THE GENTLEMAN'S

  OPINION AS TO WHETHER OR NOT THE PROVISO CONTAINED IN SECTION 2

  (NOW 25 U.S.C. 373) DOES NOT PLACE THE COMPLETE POWER OF THE WILL

  IN THE HANDS OF THE COMMISSIONER OF INDIAN AFFAIRS? 

     "MR. BURKE OF SOUTH DAKOTA.  THE COMMISSIONER OF INDIAN
AFFAIRS

AND THE SECRETARY OF THE INTERIOR, OF COURSE, WOULD NOT FAVOR THE

  PROVISION PERMITTING INDIANS TO MAKE WILLS UNLESS THE MAKING OF

  THEM WERE SUBJECT TO THE APPROVAL OF THE DEPARTMENT. 

     "MR. COX OF INDIANA.  UNDER THE PROVISO AS IT NOW EXISTS IN

  SECTION 2, DOES IT NOT PLACE COMPLETE POWER IN THE HANDS OF THE

  SECRETARY OF THE INTERIOR AND THE COMMISSIONER OF INDIAN AFFAIRS

  OVER THE WILL OF AN INDIAN WITH ABSOLUTE POWER TO REVOKE THE

  INDIAN'S WILL? 

     "MR. BURKE OF SOUTH DAKOTA.  I THINK SO. 

     "MR. COX OF INDIANA.  THEN AFTER ALL IT SIMPLY IMPOSES THE

ENTIRE POWER OF MAKING THE WILL IN THE HANDS OF THE COMMISSIONER

  OF INDIAN AFFAIRS. 

     "MR. BURKE OF SOUTH DAKOTA.  I WILL SAY THE PURPOSE WAS THIS:

  IT FREQUENTLY HAPPENED-- AND I WILL SPEAK OF THAT IN CONNECTION

  WITH SECTIONS 3 AND 4 AT THE SAME TIME-- IT FREQUENTLY HAPPENED

  AN INDIAN HAS THREE OR FOUR CHILDREN.  HE WAS ALLOTTED LAND AT

  THE TIME HE HAD ONLY TWO CHILDREN, AND THE FATHER AND THE MOTHER

  HAVE ALLOTMENTS AND THE TWO CHILDREN WHO WERE LIVING AT THE TIME

  ALLOTMENTS WERE MADE HAVE ALLOTMENTS, BUT THE OTHER CHILDREN HAVE

  NO LAND AT ALL. 

     "NOW, THE INDIAN IS JUST AS HUMAN AS A WHITE MAN, AND IT

  FREQUENTLY HAPPENS THAT HE DESIRES TO HAVE PERMISSION TO GIVE HIS

  ALLOTMENT TO THE CHILDREN WHO HAVE NO LAND, AND IN A CASE OF THAT

  KIND UNDOUBTEDLY THE INTERIOR DEPARTMENT WOULD O.K. IT, WHEREAS

  IF IT WAS A WILL GIVING HIS ESTATE TO SOME PERSON WHO OUGHT NOT

  TO HAVE IT, THEN THEY WOULD DISAPPROVE IT. 

     "MR. COX OF INDIANA.  I SUPPOSE THE PURPOSE OF THIS PROVISO IS

  AN EQUITABLE PURPOSE, RESERVING IN THE DEPARTMENT OF THE INTERIOR

  THE POWER TO COMPEL THE INDIAN TO MAKE A PROPER WILL.  . . . 

     "MR. BURKE OF SOUTH DAKOTA.  NOT COMPEL HIM AT ALL. 

     "MR. COX OF INDIANA.  OR ELSE REVOKE THE WILL IF HE DID NOT
MAKE A PROPER WILL. 

     "MR. BURKE OF SOUTH DAKOTA.  IF THE INDIAN MAKES A WILL, AND
IT

  IS NOT SATISFACTORY TO THE COMMISSIONER AND THE SECRETARY, AND I

  PUT BOTH IN TO SAFEGUARD IT, IT WILL BE DISAPPORVED OF, AND OF

  COURSE WILL BE OF NO EFFECT."  45 CONG.REC.  5812. 

IT IS PRIMARILY ON THE BASIS OF THE COLLOQUY ON THE FLOOR THAT THE
UNITED STATES ARGUES THAT WE SHOULD UPHOLD THE SECRETARY'S ACTION IN
THIS CASE.  ACCORDING TO THE GOVERNMENT, THIS EXCHANGE SHOWS THAT THE
SECRETARY WAS EMPOWERED TO TAKE "EQUITABLE CONSIDERATIONS" INTO ACCOUNT
IN APPROVING OR DISAPPROVING A WILL.  HOWEVER, TO AFFIRM THE
ADMINISTRATIVE ACTION IN THIS INSTANCE, IT WOULD BE NECESSARY TO HOLD
THAT AN OTHERWISE VALID WILL REFLECTING A RATIONAL TESTAMENTARY
DISPOSITION OF THE DECEDENT'S PROPERTY CAN BE DISAPPROVED SIMPLY
BECAUSE A GOVERNMENT OFFICIAL DECIDES THAT HAD HE BEEN THE TESTATOR HE
WOULD HAVE WRITTEN A DIFFERENT, AND, TO HIS WAY OF THINKING, A "FAIRER"
WILL. 

WITHOUT ATTEMPTING TO DEFINE WITH PRECISION THE OUTER LIMITS OF THE
SECRETARY'S AUTHORITY UNDER THE PROVISO OF SEC. 373, I THINK IT CLEAR
THAT IT CANNOT BE CONSTRUED THIS BROADLY.  FIRST, IT MUST BE REMEMBERED
THAT THE PRIMARY PURPOSE OF SEC. 373 IS TO GIVE TO THE TESTATOR, NOT TO
THE SECRETARY, THE POWER TO DISPOSE OF RESTRICTED PROPERTY BY A WILL. 
IN ACCORDING TO THE INDIAN TESTAMENTARY CAPACITY OVER RESTRICTED
PROPERTY CONGRESS COULD HAVE ONLY INTENDED TO GIVE HIM THE POWER TO
DISPOSE OF RESTRICTED PROPERTY ACCORDING TO PERSONAL PREFERENCE RATHER
THAN THE PREDETERMINED DICTATES OF INTESTATE SUCCESSION.  SUCH IS THE
ESSENCE OF THE POWER TO MAKE A WILL.  THE NOTION THAT THE SECRETARY CAN
DISAPPROVE A WILL ON THE BASIS OF A SUBJECTIVE APPRAISAL-- GOVERNED BY
NO STANDARDS OF GENERAL APPLICABILITY /7/  -- THAT THE DISPOSITION IS
UNFAIR TO A PERSON WHO WOULD OTHERWISE INHERIT AS A LEGAL HEIR SIMPLY
CUTS TOO DEEP INTO THE PRIMARY OBJECTIVE OF THE STATUTORY GRANT. 

THIS CONCLUSION THAT THERE MUST BE LIMITS TO THE SECRETARY'S POWER
UNDER THE PROVISO OF SEC. 373 IF THE PRIMARY PURPOSE OF THE STATUTE IS
TO BE ACCOMPLISHED, FINDS EXPLICIT SUPPORT IN THE DEPARTMENT OF THE
INTERIOR'S OWN EARLIER CONSTRUCTION OF SEC. 373.  IN RESPONSE TO A
LETTER SUGGESTING THAT THE SECRETARY DISAPPROVE A WILL THAT BOTH
DISINHERITED CERTAIN LEGAL HEIRS AND LEFT PART OF THE ESTATE TO A WHITE
PERSON NOT RELATED TO THE INDIAN DECEDENT, THE OFFICE OF THE SOLICITOR
STATED IN A WRITTEN MEMORANDUM, AFTER QUOTING THE STATUTE: 

"THE RIGHT TO MAKE A WILL IS THUS CONFERRED ON THE INDIAN NOT ON THE
SECRETARY.  WHATEVER DISCRETION THE SECRETARY MAY HAVE IN THE MATTER OF
APPROVING OR DISAPPROVING THE WILL, IT IS CLEAR THAT THIS DISCRETION
SHOULD NOT BE EXERCISED TO THE ENTENT OF SUBSTITUTING HIS WILL FOR THAT
OF THE TESTATOR.  SUCH WOULD CLEARLY BE THE EFFECT OF DISAPPROVAL IN
THE PRESENT CASE.  THE NAMING OF A NON-INDIAN AS ONE OF THE
BENEFICIARIES OBVIOUSLY IS NOT A VALID OBJECTION TO APPROVAL OF THE
WILL IN THE ABSENCE OF FRAUD OR OTHER IMPOSITION, WHICH IS CLEARLY NOT
PRESENT."  /8/ 

THIS STATEMENT REFLECTS WHAT APPEARS TO HAVE BEEN THE CONSISTENT
PRACTICE OF THE SECRETARY FROM 1910 UP TO THE TIME OF THE
ADMINISTRATIVE ACTION TAKEN IN THIS CASE.  FOR, APART FROM THE CASE NOW
BEFORE US, NO OTHER INSTANCE HAS BEEN CALLED TO OUR ATTENTION IN WHICH
AN INDIAN'S WILL WAS DISAPPROVED UNDER CIRCUMSTANCES REQUIRING THE
BROAD DISCRETIONARY AUTHORITY CLAIMED HERE.  /9/ 

IN SUMMARY, I THINK THE STATUTORY FRAMEWORK AND LEGISLATIVE HISTORY
OF SEC. 373 DO INDICATE THAT THE SECRETARY OF THE INTERIOR IS NOT
FORECLOSED FROM GOING BEYOND THE TECHNICAL REQUIREMENTS IN DECIDING
WHETHER TO APPROVE A WILL.  A WILL THAT DISINHERITS THE NATURAL OBJECT
OF THE TESTATOR'S BOUNTY SHOULD BE SCRUTINIZED CLOSELY.  IF SUCH A WILL
WAS THE RESULT OF OVERREACHING BY A BENEFICIARY, OR FRAUD; IF THE WILL
IS INCONSISTENT WITH THE DECEDENT'S EXISTING LEGAL OBLIGATION OF
SUPPORT, OR IN SOME OTHER WAY CLEARLY OFFENDS A SIMILAR PUBLIC POLICY;
OR IF THE DISINHERITANCE CAN BE FAIRLY SAID TO BE THE PRODUCT OF
INADVERTENCE-- AS MIGHT BE THE CASE IF THE TESTATOR MARRIED OR BECAME A
PARENT AFTER THE WILL WAS EXECUTED-- THE SECRETARY MIGHT PROPERLY
DISAPPROVE IT.  HOWEVER, I DO NOT THINK THE SECRETARY CAN WITHHOLD
APPROVAL SIMPLY BECAUSE HE CONCLUDES IT WAS UNFAIR OF THE TESTATOR TO
DISINHERIT A LEGAL HEIR IN CIRCUMSTANCES WHERE AS HERE THERE IS A
PERFECTLY UNDERSTANDABLE AND RATIONAL BASIS FOR THE TESTATOR'S
DECISION.  /10/ 

/1/  THE TEXT OF 25 U.S.C. 373 IS QUOTED IN RELEVANT PART IN N. 3,
ANTE, AT 600, OF THE COURT'S OPINION. 

/2/  AT THE END OF THE TRUST PERIOD-- NOT YET EXPIRED BECAUSE THE
INITIAL 25-YEAR PERIOD HAS BEEN EXTENDED-- THE ALLOTTEE WAS TO RECEIVE
A FEE SIMPLE INTEREST IN THE LAND.  SEE 25 U.S.C. 391.  BEFORE THE
TERMINATION OF THE TRUST PERIOD, THE SECRETARY IS NOW AUTHORIZED, FOR A
PARTICULAR INDIAN, TO REMOVE THE RESTRICTIONS ON ALIENATION, SEE 25
U.S.C. 372; 25 CFR 121.49. 

/3/  SEE 25 CFR 121.9-121.20, 121.61, 121.18(B), PROMULGATED UNDER
THE AUTHORITY OF 25 U.S.C. 379.  THERE ARE ALSO RESTRICTIONS ON THE
ALLOTTEE'S ABILITY TO LEASE THE LAND, SEE 25 U.S.C. 393, 403, 415(A);
25 CFR SUBCHS.  P AND Q. 

/4/ SECTION 2, 36 STAT. 856, PROVIDED: 

"THAT ANY INDIAN OF THE AGE OF TWENTY-ONE YEARS, OR OVER, TO WHOM AN
ALLOTMENT OF LAND HAS BEEN OR MAY HEREAFTER BE MADE, SHALL HAVE THE
RIGHT, PRIOR TO THE EXPIRATION OF THE TRUST PERIOD AND BEFORE THE ISSUE
OF A FEE SIMPLE PATENT, TO DISPOSE OF SUCH ALLOTMENT BY WILL, IN
ACCORDANCE WITH RULES AND REGULATIONS TO BE PRESCRIBED BY THE SECRETARY
OF THE INTERIOR:  PROVIDED, HOWEVER, THAT NO WILL SO EXECUTED SHALL BE
VALID OR HAVE ANY FORCE OR EFFECT UNLESS AND UNTIL IT SHALL HAVE BEEN
APPROVED BY THE COMMISSIONER OF INDIAN AFFAIRS AND THE SECRETARY OF THE
INTERIOR:  PROVIDED, FURTHER, THAT SECTIONS ONE AND TWO OF THIS ACT
SHALL NOT APPLY TO THE STATE OF OKLAHOMA."  SECTION 2 WAS AMENDED TO
ITS PRESENT FORM (25 U.S.C. 373) BY 37 STAT. 678 (1913). 

/5/  SEE 25 U.S.C. 348. 

/6/  SEE H.R. REP. NO. 1135, 61ST CONG., 2D SESS., 2 (APRIL 26,
1910); S. REP. NO. 868, 61ST CONG., 2D SESS. (JUNE 17, 1910); H.R.
CONF. REP. NO. 1727, 61ST CONG., 2D SESS. (JUNE 23, 1910). 

THE ORIGINAL BILL, AS INTRODUCED IN THE HOUSE BY CONGRESSMAN BURKE
AND REFERRED TO THE INDIAN AFFAIRS COMMITTEE, CONTAINED NO PROVISION
EMPOWERING INDIANS TO MAKE WILLS.  SEE H.R. 12439, 61ST CONG., 2D SESS.
(INTRODUCED DEC. 6, 1909).  THE BILL REPORTED OUT OF COMMITTEE, H.R.
24992, HAD SUCH A PROVISION, HOWEVER.  THE HOUSE COMMITTEE REPORT
SUGGESTED THAT THE CHANGES AND ADDITIONS TO H.R. 12439 FOUND IN H.R.
24992 WERE MADE IN RESPONSE TO RECOMMENDATIONS MADE BY THE SECRETARY OF
THE INTERIOR IN A LETTER OF APRIL 13, 1910.  SEE H.R. REP. NO. 1135,
SUPRA, AT 1.  HOWEVER, EXAMINATION OF THE LETTER REFERRED TO IN THE
HOUSE COMMITTEE REPORT, TOGETHER WITH THE REVISIONS SUGGESTED THEREIN,
REVEALS NEITHER A REFERENCE TO NOR AN ESPOUSAL OF THE IDEA THAT INDIANS
BE GIVEN TESTAMENTARY CAPACITY OVER RESTRICTED LANDS.  SEE LETTER OF
APRIL 13, 1910, FROM SECRETARY OF THE INTERIOR RICHARD A. BAILINGER TO
HON. CHARLES H. BURKE WITH NEW DRAFT OF H.R. 12439. 

THE BILL (H.R. 24992) WAS PASSED BY THE HOUSE AS REPORTED OUT OF THE
COMMITTEE.  THE SENATE AMENDED THE BILL, DELETING SEC. 2 ALONG WITH
MOST OF THE REMAINDER OF THE ORIGINAL HOUSE VERSION.  SEE.  S. REP. NO.
868, SUPRA. HOWEVER, THE CONFERENCE READOPTED FOR THE MOST PART ALL OF
THE ORIGINAL HOUSE VERSION, SEE H.R. CONF. REP. NO. 1727, SUPRA, AND
SEC. 2 WAS ENACTED INTO LAW IN THE IDENTICAL FORM AS ORIGINALLY PASSED
BY THE HOUSE. 

/7/  SEE N. 10, INFRA. 

/8/  MEMORANDUM DATED MAY 10, 1941, FROM THE SOLICITOR'S OFFICE TO
THE ASSISTANT SECRETARY OF THE INTERIOR. 

/9/  AT ORAL ARGUMENT, THE GOVERNMENT ATTORNEY WAS ASKED WHETHER
THERE WERE ANY OTHER INSTANCES WHERE THE SECRETARY HAD DISAPPROVED A
WILL IN CIRCUMSTANCES SUCH AS THOSE HERE.  HE REPLIED, "NO, I HAVE ONLY
BEEN ABLE TO FIND CASES IN WHICH THE WILLS HAVE BEEN APPROVED, THOUGH
IT IS CLEAR THAT EQUITABLE CONSIDERATIONS WERE TAKEN INTO ACCOUNT." 
TRANSCRIPT OF ORAL ARGUMENT 30.  THE OPINION OF THE REGIONAL SOLICITOR
IN THE PRESENT CASE CITES THREE UNREPORTED DECISIONS TO SUPPORT HIS
BROAD CLAIM OF THE RIGHT TO DETERMINE WHETHER THE "WILL MOST NEARLY
ACHIEVES) JUST AND EQUITABLE TREATMENT."  ALTHOUGH THERE IS LANGUAGE IN
THESE OPINIONS CLAIMING FOR THE SECRETARY "DISCRETIONARY" AUTHORITY TO
DISAPPROVE WILLS, ALL THREE INVOLVED WILLS THAT DISINHERITED MINOR
CHILDREN FOR WHOM THE DECEDENT HAD AN OBLIGATION OF SUPPORT AT THE TIME
OF HIS DEATH.  MOREOVER, IN TWO OF THE THREE CASES THE DISINHERITED
CHILD WAS BORN AFTER THE EXECUTION OF THE WILL, THUS CREATING THE
POSSIBILITY THAT THE DISINHERITANCE WAS INADVERTENT.  SEE ESTATE OF
OLIVER MAYNAHONAH, IA-T-1 (JUNE 30, 1966); ESTATE OF KOSOPE (RICHARD)
MAYNAHONAH, IA-141 (OCT. 28, 1954); ESTATE OF FRANK (OREN F.)  SIMPKINS
(WILL DISAPPROVED DEC. 1, 1943).  IN THIS CASE, ON THE OTHER HAND, THE
DECEDENT'S DAUGHTER WAS AN ADULT, WHO WAS MARRIED, AND WHO WAS
COMPLETELY ESTRANGED FROM HER FATHER BOTH WHEN HIS WILL WAS EXECUTED
AND AT THE TIME OF HIS DEATH.  ON THE FACTS SHOWN HERE THERE IS NO
BASIS FOR CONCLUDING THAT THE DECEDENT'S WILL REFLECTS AN UNINFORMED OR
IRRATIONAL DISPOSITION, OR ONE THAT IS CONTRARY TO PUBLIC POLICY.  ANY
NOTION THAT THE SECRETARY HAS A REGULAR POLICY OF DISAPPROVING WILLS
THAT DISINHERIT ILLEGITIMATE OFFSPRING IS BELIED BY ATTOCKNIE V. UDALL,
261 F.SUPP.  876 (D.C.W.D.OKLA.  1966), WHERE THE SECRETARY APPROVED A
WILL THAT DISINHERITED A SON BORN OUT OF WEDLOCK. 

/10/  I DO NOT MEAN TO SUGGEST THAT THE SECRETARY MIGHT NOT
PROMULGATE A REGULATION THAT, LIKE CERTAIN STATE STATUTES, PROVIDES
THAT A TESTATOR CANNOT COMPLETELY DISINHERIT ANY OF HIS OFFSPRING.  A
GENERAL STANDARD LIKE THIS WOULD, OF COURSE, ELIMINATE THE DANGERS
INHERENT IN AD HOC DETERMINATIONS OF WHETHER THE WILL IS IN SOME VAGUE
SENSE FAIR TO AN HEIR. 

OMER LUELLEN ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

RICHARD B. STONE ARGUED THE CAUSE FOR RESPONDENT HICKEL, PRO HAC
VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL KASHIWA, EDMUND B. CLARK, AND ROBERT S. LYNCH. 
..END :




CHOCTAW NATION V. OKLAHOMA, 397 U.S. 620 


       CHOCTAW NATION ET AL. V. OKLAHOMA ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

          TENTH CIRCUIT

        NO. 41.  ARGUED OCTOBER 22-23, 1969-- REARGUED MARCH 5,

           1970-- DECIDED APRIL 27, 1970  /1/ 


UNDER VARIOUS TREATIES (INCLUDING THE TREATY OF DANCING RABBIT CREEK
IN 1830 BETWEEN THE UNITED STATES AND THE CHOCTAWS AND THE TREATY OF
NEW ECHOTA IN 1835 BETWEEN THE UNITED STATES AND THE CHEROKEES) AND
PATENTS ISSUED THEREUNDER, PETITIONER INDIAN NATIONS ARE HELD, CONTRARY
TO THE CLAIMS OF THE STATE OF OKLAHOMA AND OTHER RESPONDENTS, TO HAVE
RECEIVED TITLE TO THE LAND UNDERLYING THE NAVIGABLE PORTION OF THE
ARKANSAS RIVER FROM ITS CONFLUENCE WITH THE GRAND RIVER IN OKLAHOMA TO
THE OKLAHOMA-ARKANSAS BORDER.  PP. 628-636. 

402 F.2D 739, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE A DISPUTE OVER THE TITLE TO LAND UNDERLYING THE
NAVIGABLE PORTION OF PARTS OF THE ARKANSAS RIVER IN THE STATE OF
OKLAHOMA.  AS A PRACTICAL MATTER, WHAT IS AT STAKE IS THE OWNERSHIP OF
THE MINERALS BENEATH THE RIVER BED AND OF THE DRY LAND CREATED BY
NAVIGATION PROJECTS THAT ARE NARROWING AND DEEPENING THE RIVER
CHANNEL. 

IN DECEMBER 1966, PETITIONER CHEROKEE NATION BROUGHT SUIT IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA
AGAINST THE STATE OF OKLAHOMA AND VARIOUS CORPORATIONS TO WHICH THE
STATE HAD LEASED OIL AND GAS AND OTHER MINERAL RIGHTS.  IN ITS
COMPLAINT, THE CHEROKEE NATION SOUGHT BOTH TO RECOVER ROYALTIES DERIVED
FROM THE LEASES AND TO PREVENT FUTURE INTERFERENCE WITH ITS PROPERTY
RIGHTS, CLAIMING THAT IT HAD BEEN SINCE 1835 THE ABSOLUTE FEE OWNER OF
CERTAIN LAND BELOW THE MEAN HIGH WATER LEVEL OF THE ARKANSAS RIVER. 
SUBSEQUENTLY, PETITIONERS CHOCTAW AND CHICKASAW NATIONS SOUGHT AND WERE
GRANTED LEAVE TO INTERVENE IN THE CASE IN ORDER TO PRESENT THEIR CLAIMS
THAT PART OF THE RIVER BED BELONGS TO THEM. 

AFTER PRE-TRIAL PROCEEDINGS IN THE DISTRICT COURT, A JUDGMENT ON THE
PLEADINGS WAS ENTERED AGAINST PETITIONERS AND IN FAVOR OF THE STATE. 
THE DISTRICT COURT HELD THAT LAND GRANTS MADE TO PETITIONERS BY THE
UNITED STATES CONVEYED NO RIGHTS TO THE BED OF THE NAVIGABLE PORTION OF
THE ARKANSAS RIVER.  THE COURT THUS HELD THAT TITLE TO THE RIVER BED
REMAINED IN THE UNITED STATES UNTIL 1907, WHEN IT PASSED TO THE STATE
UPON OKLAHOMA'S ADMISSION TO THE UNION.  ON APPEAL, THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED THE JUDGMENT OF THE
DISTRICT COURT.  402 F.2D 739 (1968).  WE GRANTED CERTIORARI, 394 U.S.
972 (1969), TO CONSIDER PETITIONERS' CLAIMS THAT THEY RECEIVED TITLE TO
THE LAND IN QUESTION BY TREATIES WITH THE UNITED STATES IN 1830 AND
1835. 

        I 

AT THE OUTSET, WE NOTE THAT THESE CASES REQUIRE US TO PASS UPON THE
EFFECT OF TREATIES THAT WERE ENTERED INTO NEARLY A CENTURY AND A HALF
AGO.  AS BACKGROUND, IT IS NECESSARY BRIEFLY TO RELATE THE
CIRCUMSTANCES BY WHICH PETITIONERS RECEIVED LARGE GRANTS OF LAND BY
TREATY FROM THE UNITED STATES. 

THE HISTORY BEHIND THESE TREATIES GOES BACK AT LEAST TO THE PERIOD
IMMEDIATELY AFTER THE REVOLUTIONARY WAR AND PRIOR TO THE ADOPTION OF
THE CONSTITUTION-- A TIME WHEN PETITIONERS AND OTHER INDIAN NATIONS
OCCUPIED MUCH OF WHAT ARE TODAY THE SOUTHERN AND SOUTHEASTERN PARTS OF
THE UNITED STATES.  IN 1785, IN THE TREATY OF HOPEWELL, NOVEMBER 28,
1785, 7 STAT. 18, THE UNITED STATES ENTERED INTO A TREATY OF PEACE AND
FRIENDSHIP WITH THE CHEROKEE INDIANS WHICH ESTABLISHED THE BOUNDARIES
OF THE CHEROKEE NATION AND IN WHICH THE INDIANS ACKNOWLEDGED THEMSELVES
TO BE UNDER THE PROTECTION OF THE UNITED STATES.  THE NEXT YEAR, A
SIMILAR TREATY WAS CONCLUDED BETWEEN THE CHOCTAWS AND THE UNITED
STATES.  TREATY OF HOPEWELL, JANUARY 3, 1786, 7 STAT. 21. 

IN FOLLOWING YEARS, THE UNITED STATES ENTERED INTO A NUMBER OF
ADDITIONAL TREATIES WITH BOTH THE CHEROKEES AND CHOCTAWS.  /1A/  BY
MEANS OF THESE TREATIES, THE UNITED STATES PURCHASED LARGE AREAS OF
LAND FROM THE INDIANS TO PROVIDE ROOM FOR THE INCREASING NUMBERS OF NEW
SETTLERS WHO WERE ENCROACHING UPON INDIAN LANDS URING THEIR WESTWARD
MIGRATIONS.  ALTHOUGH THE INDIANS WERE NOT CONSIDERED TO OWN THE FEE
TITLE TO THE LAND ON WHICH THEY LIVED, THEY DID HAVE THE RIGHT TO THE
EXCLUSIVE USE AND OCCUPANCY OF THE LAND-- A RIGHT THAT COULD BE CEDED
ONLY TO THE UNITED STATES.  /2/  MOREOVER, THE INDIANS CONTINUED TO
LIVE ON THE LAND NOT CEDED UNDER THEIR OWN LAWS AND WAY OF LIFE, AND
THEIR RIGHTS TO THOSE LANDS WERE "SOLMNLY" GUARANTEED BY THE UNITED
STATES.  TREATY OF HOLSTON, JULY 2, 1791, 7 STAT. 39, 40; SEE INDIAN
INTERCOURSE ACT OF 1802, 2 STAT. 139. 

EVEN WHILE IT WAS MAKING THIS SOLEMN GUARANTEE, HOWEVER, THE UNITED
STATES ADOPTED A POLICY AIMED AT COMPLETELY EXTINGUISHING THESE INDIAN
NATIONS' RIGHTS TO THEIR NATIVE LANDS.  THE UNITED STATES HAD ACQUIRED
A LARGE WESTERN TERRITORY IN 1803 BY THE LOUISIANA PURCHASE, AND IT WAS
SOON PROPOSED THAT THE INDIANS BE RELOCATED ON NEW LANDS WEST OF THE
MISSISSIPPI.  /3/  FOR A TIME, IT SEEMED THAT THE WESTWARD REMOVAL OF
THE INDIANS MIGHT BE READILY ACCOMPLISHED.  IN THE TREATY OF JULY 8,
1817, 7 STAT. 156, THE CHEROKEE NATION AGREED TO TRADE PART OF ITS
LANDS IN GEORGIA FOR A LARGE AMOUNT OF LAND IN THE ARKANSAS TERRITORY. 
SEE ALSO TREATY OF FEBRUARY 27, 1819, 7 STAT. 195.  THEREAFTER, A
NUMBER OF THE CHEROKEES LEFT THEIR EASTERN LANDS AND TRAVELED WEST. 
THREE YEARS LATER, IN THE TREATY OF DOAK'S STAND, OCTOBER 18, 1820, 7
STAT. 210, THE CHOCTAW NATION AGREED TO EXCHANGE APPROXIMATELY HALF OF
ITS REMAINING MISSISSIPPI LANDS FOR A LARGE TRACT OF LAND IN THE
ARKANSAS TERRITORY AND AN EVEN LARGER ONE FARTHER WEST. 

BEFORE THE UNITED STATES COULD RELOCATE THE INDIANS ON THESE NEW
LANDS, HOWEVER, AT LEAST PART OF THE LAND THAT HAD BEEN SET ASIDE
IN.THE ARKANSAS TERRITORY WAS ALREADY SETTLED.  IT WAS APPARENT THAT
THE WESTWARD REMOVAL HAD NOT BEEN AIMED FAR ENOUGH WEST TO ESCAPE THE
NEW NATION'S EXPANSION.  BY THE TREATY OF JANUARY 20, 1825, 7 STAT.
234, THE CHOCTAWS WERE PERSUADED TO CEDE BACK TO THE UNITED STATES THE
EASTERN PORTION OF THE LAND GIVEN THEM IN THE TREATY OF DOAK'S STAND. 
SIMILARLY, THE CHEROKEES WHO HAD VOLUNTARILY MOVED TO ARKANSAS AGREED
TO MOVE AGAIN-- FARTHER WEST TO A NEW TRACT OF LAND, "A PERMANENT HOME,
AND WHICH SHALL, UNDER THE MOST SOLEMN GUARANTEE OF THE UNITED STATES,
BE, AND REMAIN, THEIRS FOREVER."  TREATY OF MAY 6, 1828, 7 STAT. 311. 

THE PROSPECT OF THE VOLUNTARY REMOVAL OF THE INDIANS TO LAND WEST OF
THE MISSISSIPPI SOON DISAPPEARED.  FOR THE MOST PART, THE CHOCTAWS AND
THE CHEROKEES WHO HAD NOT ALREADY LEFT THEIR EASTERN LANDS REFUSED TO
GIVE UP THE LAND THAT HAD LONG BEEN THEIR HOME.  THE ABORTIVE ATTEMPT
TO SET ASIDE ARKANSAS TERRITORY LAND FOR THE INDIANS JUSTIFIABLY MADE
MANY OF THEM DOUBT THAT THE UNITED STATES WOULD PROTECT THEM IN THEIR
NEW LANDS.  BUT AT THE SAME TIME THE INDIANS WERE DECIDING TO REMAIN,
THE NEW SETTLERS' EXPANSION AND DESIRE FOR THEIR LANDS INCREASED.  IN
GEORGIA, THE STATE LEGISLATURE, TIRED OF WAITING FOR THE UNITED STATES
TO FULFILL ITS PROMISE TO EXTINGUISH INDIAN RIGHTS TO GEORGIA LANDS,
/4/  ASSERTED JURISDICTION OVER THE CHEROKEES AND PREPARED TO
DISTRIBUTE THE CHEROKEE LANDS.  MISSISSIPPI SOON FOLLOWED SUIT,
ABOLISHING TRIBAL GOVERNMENT AND EXTENDING ITS LAWS TO CHOCTAW
TERRITORY. 

A CLASH BETWEEN THE OBLIGATION OF THE UNITED STATES TO PROTECT
INDIAN PROPERTY RIGHTS ON THE ONE HAND AND THE POLICY OF FORCING THEIR
RELINQUISHMENT ON THE OTHER WAS INEVITABLE.  WITH THE PASSAGE OF THE
INDIAN REMOVAL ACT OF 1830, 4 STAT. 411, IT BECAME APPARENT THAT
POLICY, NOT OBLIGATION, WOULD PREVAIL.  IN SPITE OF THE PROMISES TO
PROTECT THE INDIANS' LAND AND SOVEREIGNTY, IT WAS CLEAR THAT THE UNITED
STATES WAS UNABLE OR UNWILLING TO PREVENT THE STATES AND THEIR CITIZENS
FROM VIOLATING INDIAN RIGHTS. 

THUS FACED WITH THE PROSPECT OF LOSING BOTH THEIR LANDS AND WAY OF
LIFE, THE CHOCTAWS AGREED IN 1830 TO LEAVE MISSISSIPPI AND TO MOVE TO
NEW LANDS WEST OF THE ARKANSAS TERRITORY.  AS A GUARANTEE THAT THEY
WOULD NOT AGAIN BE FORCED TO MOVE, THE UNITED STATES PROMISED TO CONVEY
THE LAND TO THE CHOCTAW NATION IN FEE SIMPLE "TO INURE TO THEM WHILE
THEY SHALL EXIST AS A NATION AND LIVE ON IT."  IN ADDITION, THE UNITED
STATES PLEDGED ITSELF TO SECURE TO THE CHOCTAWS THE "JURISDICTION AND
GOVERNMENT OF ALL THE PERSONS AND PROPERTY THAT MAY BE WITHIN THEIR
LIMITS WEST, SO THAT NO TERRITORY OR STATE SHALL EVER HAVE A RIGHT TO
PASS LAWS FOR THE GOVERNMENT OF THE CHOCTAW NATION . . . AND THAT NO
PART OF THE LAND GRANTED TO THEM SHALL EVER BE EMBRACED IN ANY
TERRITORY OR STATE."  TREATY OF DANCING RABBIT CREEK, SEPT. 27, 1830, 7
STAT. 333-334. 

THE CHEROKEES WERE AT FIRST DETERMINED TO RETAIN THE GEORGIA LANDS
ON WHICH THEY HAD BY THAT TIME SETTLED DOWN, ESTABLISHING FARMS AND
TOWNS.  /5/  HOWEVER, AFTER A TIME, THEY, TOO, WERE FORCED TO LEAVE. 
IN THE TREATY OF NEW ECHOTA, DECEMBER 29, 1835, 7 STAT. 478, THE
CHEROKEES WHO HAD REMAINED IN THE EAST AGREED TO LEAVE THEIR LANDS AND
TO JOIN THE CHEROKEES WHO HAD ALREADY MOVED WEST OF THE MISSISSIPPI. 
ONCE AGAIN, THE UNITED STATES ASSURED THE INDIANS THAT THEY WOULD NOT
BE FORCED TO MOVE FROM THEIR NEW LANDS:  A PATENT WOULD ISSUE TO CONVEY
THOSE LANDS IN FEE SIMPLE, AND THEY WOULD NEVER BE EMBRACED WITHIN THE
BOUNDARIES OF ANY STATE OR TERRITORY. 

THE UNITED STATES THUS SECCEEDED IN ITS EFFORTS TO REMOVE THE
INDIANS FROM THEIR EASTERN LANDS.  IN EXCHANGE, BY THE TREATY OF
DANCING RABBIT CREEK WITH THE CHOCTAWS IN 1830 AND THE TREATY OF NEW
ECHOTA WITH THE CHEROKEES IN 1835, THE UNITED STATES GRANTED A VAST
AREA OF ITS WESTERN TERRITORY TO THE TWO INDIAN NATIONS.  THE LAND THUS
GRANTED TO THE CHOCTAWS ENCOMPASSED WHAT IS TODAY APPROXIMATELY THE
SOUTHERN THIRD OF THE STATE OF OKLAHOMA; TO THE NORTH, THE CHEROKEES
RECEIVED TITLE TO A TRACT OF LAND IN THE EASTERN PART OF THE REMAINDER
OF THE STATE WITH A PERPETUAL OUTLET TO AND OTHER RIGHTS IN LAND
FARTHER WEST. 

ALTHOUGH BY LATER TREATIES OTHER INDIAN TRIBES WERE SETTLED ON PARTS
OF THE LAND ORIGINALLY INCLUDED IN THESE GRANTS, AND THE CHICKASAW
NATION WAS GRANTED AN UNDIVIDED ONE-FOURTH INTEREST IN THE REMAINDER OF
THE CHOCTAW LAND, SEE TREATY OF JANUARY 17, 1837, 11 STAT. 573; TREATY
OF JUNE 22, 1855, 11 STAT 611, THE FEE SIMPLE TITLE TO A VAST TRACT OF
LAND CONTINUED TO BE HELD BY THE PETITIONER INDIAN NATIONS FOR WELL
OVER HALF A CENTURY. 

THEN, AGAIN DUE IN LARGE PART TO THE PRESSURE OF SETTLERS WHO WERE
ENCROACHING ON INDIAN LANDS, /6/  CONGRESS ACTED TO CHANGE THE
ARRANGEMENT.  BY SEC. 16 OF THE ACT OF MARCH 3, 1893, 27 STAT. 645, A
COMMISSION WAS CREATED TO NEGOTIATE WITH THE INDIAN TRIBES THAT HAD
BEEN LOCATED IN OKLAHOMA ON THE ALLOTMENT OF LAND TO THEIR INDIVIDUAL
MEMBERS IN PREPARATION FOR THE FINAL DISSOLUTION OF THE TRIBES. 
THEREAFTER, THE INDIANS-- INCLUDING THE CHOCTAWS, CHICKASAWS, AND
CHEROKEES-- AGREED TO THE ALLOTMENT OF THEIR LANDS AND THE TERMINATION
OF TRIBAL AFFAIRS.  SEE ACT OF JUNE 28, 1898, 30 STAT. 495; ACT OF JULY
1, 1902, 32 STAT. 716.  FINALLY, CONGRESS PROVIDED FOR THE DISPOSITION
OF ALL PETITIONERS' LANDS WITH THE PROVISION THAT ANY REMAINING TRIBAL
PROPERTY "BE HELD IN TRUST BY THE UNITED STATES FOR THE USE AND BENEFIT
OF THE INDIANS."  ACT OF APRIL 26, 1906, SEC. 27, 34 STAT. 148.  THE
WAY WAS THUS PAVED FOR OKLAHOMA'S ADMISSION TO THE UNION "ON AN EQUAL
FOOTING WITH THE ORIGINAL STATES," CONDITIONED ON ITS DISCLAIMER OF ALL
RIGHT AND TITLE TO LANDS "OWNED OR HELD BY ANY INDIAN, TRIBE, OR
NATION."  ACT OF JUNE 16, 1906, SECS. 3, 4, 34 STAT. 270, 271. 

ACCORDING TO PETITIONERS, THEY RECEIVED TITLE TO THE BED OF THE
ARKANSAS RIVER BY TREATY AND PATENT FROM THE UNITED STATES.  BECAUSE
THE LAND WAS NOT INDIVIDUALLY ALLOTTED OR OTHERWISE DISPOSED OF
PURSUANT TO THE 1906 ACT, TITLE REMAINED IN PETITIONERS OR PASSED TO
THE UNITED STATES TO BE HELD IN TRUST FOR THEM.  THE STATE, ON THE
OTHER HAND, CLAIMS THAT PETITIONERS NEVER RECEIVED TITLE TO THE LAND. 
THE COURTS BELOW HELD IN FAVOR OF THE STATE, THUS DISPOSING OF THE CASE
SINCE IT WAS UNDISPUTED THAT IF TITLE REMAINED IN THE UNITED STATES, IT
PASSED TO OKLAHOMA UPON ADMISSION TO THE UNION AS AN INCIDENT OF
STATEHOOD.  THE SOLE QUESTION FOR REVIEW IS WHETHER THE TREATY GRANTS
FROM THE UNITED STATES CONVEYED TITLE TO THE BED OF THE ARKANSAS RIVER
TO THE CHEROKEE AND CHOCTAW NATIONS. 

        II 

WE MOVE THEN TO THE CONSTRUCTION AND EFFECT OF THE TREATIES BETWEEN
PETITIONERS AND THE UNITED STATES.  AT THE OUTSET, THE STATE ARGUES
THAT THE BED OF THE ARKANSAS RIVER WAS NOT INCLUDED IN THE GRANTS TO
PETITIONERS EVEN BY THE ACCEPTED STANDARDS OF ORDINARY CONVEYANCING
SINCE TO A SKILLED DRAFTSMAN "THE LAND DESCRIPTIONS IN THE TREATIES,
STANDING ALONE, ACTUALLY EXCLUDE THE RIVER BEDS." 

PART OF THE ARKANSAS RIVER HERE IN QUESTION IS SURROUNDED ON BOTH
SIDES BY LAND GRANTED TO THE CHEROKEES, AND WITH REGARD TO IT THE
ARGUMENT IS AT THE LEAST STRAINED.  THERE IS NO EXPLICIT EXCLUSION OF
THE RIVER BED IN THE 1835 TREATY OF NEW ECHOTA; IN FACT, THERE IS NO
REFERENCE AT ALL TO THE RIVER FROM "A POINT WHERE A STONE IS PLACED
OPPOSITE THE EAST OR LOWER BANK OF GRAND RIVER AT ITS JUNCTION WITH THE
ARKANSAS" TO ITS JUNCTION WITH THE CANADIAN.  SEE 7 STAT. 480.  AS WE
READ THE CHEROKEE TREATIES AND THE PATENT ISSUED THEREUNDER BY THE
PRESIDENT, THE CHEROKEE NATION WAS GRANTED ONE UNDIVIDED TRACT OF LAND
DESCRIBED MERELY BY EXTERIOR METES AND BOUNDS.  THAT PORTION OF THE
ARKANSAS RIVER BETWEEN ITS JUNCTIONS WITH THE GRAND AND CANADIAN RIVERS
LIES COMPLETELY WITHIN THOSE METES AND BOUNDS, AND ALL OF THE LAND
INSIDE THOSE BOUNDARIES INCLUDING THE RIVER BED SEEMS CLEARLY
ENCOMPASSED WITHIN THE GRANT. 

BELOW ITS CONFLUENCE WITH THE CANADIAN, THE ARKANSAS RIVER FORMS THE
BOUNDARY BETWEEN THE LAND GRANTED TO THE CHEROKEES TO THE NORTH AND THE
CHOCTAWS TO THE SOUTH, AND THE TREATIES DO EXPLICITLY REFER TO THIS
PORTION OF THE RIVER.  IN THE TREATY OF DOAK'S STAND IN 1820,
PETITIONER CHOCTAW NATION WAS GRANTED ALL THE LAND WITHIN THE FOLLOWING
BOUNDARIES:     "BEGINNING ON THE ARKANSAS RIVER, WHERE THE LOWER
BOUNDARY LINE OF THE CHEROKEES STRIKES THE SAME; THENCE UP THE ARKANSAS
TO THE CANADIAN FORK, AND UP THE SAME TO ITS SOURCE; THENCE DUE SOUTH
TO THE RED RIVER; THENCE DOWN RED RIVER, THREE MILES BELOW THE MOUTH OF
LITTLE RIVER, WHICH EMPTIES ITSELF INTO RED RIVER ON THE NORTH SIDE;
THENCE A DIRECT LINE TO THE BEGINNING."  7 STAT. 211.  TEN YEARS LATER,
THIS GRANT SUPERSEDED BY THE TREATY OF DANCING RABBIT CREEK, WHICH
"VARIED THE DESCRIPTION A LITTLE AND PROVIDED FOR A SPECIAL PATENT,"
FLEMING V. MCCURTAIN, 215 U.S. 56, 59 (1909): 

"BEGINNING NEAR FORT SMITH WHERE THE ARKANSAS BOUNDARY CROSSES THE
ARKANSAS RIVER, RUNNING THENCE TO THE SOURCE OF THE CANADIAN FORK; IF
IN THE LIMITS OF THE UNITED STATES, OR TO THOSE LIMITS; THENCE DUE
SOUTH TO RED RIVER, AND DOWN RED RIVER TO THE WEST BOUNDARY OF THE
TERRITORY OF ARKANSAS; THENCE NORTH ALONG THAT LINE TO THE BEGINNING." 
7 STAT. 333.  AND THE PATENT ISSUED TO THE CHOCTAW NATION IN 1842 BY
PRESIDENT TYLER MERELY REPEATED THE LANGUAGE OF THIS LATTER TREATY. 

THE CHOCTAW TREATIES PRECEDED ANY GRANT TO THE CHEROKEE NATION; AND,
UNDER THEM, PETITIONERS CHOCTAW AND CHICKASAW NATIONS CLAIM THE ENTIRE
BED OF THE ARKANSAS RIVER BETWEEN ITS CONFLUENCE WITH THE CANADIAN
RIVER AND THE OKLAHOMA-ARKANSAS BORDER.  THE CHEROKEES, HOWEVER, ALSO
HAVE A CLAIM TO THIS PART OF THE RIVER, BASED ON THE LANGUAGE SETTING
OUT THE SOUTHERN BORDER OF THE LAND GRANTED THEM IN THE TREATY OF NEW
ECHOTA:  FROM A POINT ON THE CANADIAN RIVER, 

"THENCE DOWN THE CANADIAN TO THE ARKANSAS; THENCE DOWN THE ARKANSAS
TO THAT POINT ON THE ARKANSAS WHERE THE EASTERN CHOCTAW BOUNDARY
STRIKES SAID RIVER.  . . . "  7 STAT. 480.  MOREOVER, THEY POINT TO THE
PATENT ISSUED THEM BY PRESIDENT VAN BUREN IN 1838, WHICH DESCRIBED THE
SOUTHERN BOUNDARY OF THEIR LANDS AS FOLLOWS: 

"DOWN THE CANADIAN RIVER ON ITS NORTH BANK TO ITS JUNCTION WITH
ARKANSAS TIVER; THENCE DOWN THE MAIN CHANNEL OF ARKANSAS RIVER TO THE
WESTERN BOUNDARY OF THE STATE OF ARKANSAS AT THE NORTHERN EXTEMITY OF
THE EASTERN BOUNDARY OF THE LANDS OF THE CHOCTAWS ON THE SOUTH BANK OF
ARKANSAS.  . . . " ACCORDING TO THE CHEROKEE NATION, THE UNITED STATES
THEREBY CONVEYED TO IT THE NORTH HALF OF THE ARKANSAS RIVER FROM ITS
JUNCTION WITH THE CANADIAN TO THE EASTERN OKLAHOMA BORDER.  PETITIONERS
THUS ARE IN DISAGREEMENT ABOUT THE EFFECT OF THE WORDS IN THE TREATIES
AND PATENTS WITH REGARD TO THIS LOWER PORTION OF THE RIVER.  /7/ 

THAT DISAGREEMENT, HOWEVER, DOES NOTHING TO MAKE CONVINCING EVEN THE
STATE'S ARGUMENT THAT THIS PART OF THE RIVER BED WAS EXCLUDED FROM THE
GRANTS AS A MATTER OF CONVEYANCING LAW.  ABOUT ALL THAT CAN BE SAID
ABOUT THE TREATIES FROM THE STANDPOINT OF A SKILLED DRAFTSMAN IS THAT
THEY WERE NOT SKILLFULLY DRAFTED.  MORE IMPORTANT IS THE FACT THAT
THESE TREATIES ARE NOT TO BE CONSIDERED AS EXERCISES IN ORDINARY
CONVEYANCING.  THE INDIAN NATIONS DID NOT SEEK OUT THE UNITED STATES
AND AGREE UPON AN EXCHANGE OF LANDS IN AN ARM'S-LENGTH TRANSACTION. 
RATHER, TREATIES WERE IMPOSED UPON THEM AND THEY HAD NO CHOICE HAS
OFTEN BUT TO CONSENT.  AS A CONSEQUENCE, THIS COURT HAS OFTEN HELD THAT
TREATIES WITH THE INDIANS MUST BE INTERPRETED AS THEY WOULD HAVE
UNDERSTOOD THEM, SEE, E.G., JONES V. MEEHAN, 175 U.S. 1, 11 (1899), AND
ANY DOUBTFUL EXPRESSIONS IN THEM SHOULD BE RESOLVED IN THE INDIANS'
FAVOR.  SEE ALASKA PACIFIC FISHERIES V. UNITED STATES, 248 U.S. 78, 89
(1918).  INDEED, THE TREATY OF DANCING RABBIT CREEK ITSELF PROVIDES
THAT "IN THE CONSTRUCTION OF THIS TREATY WHEREVER WELL FOUNDED DOUBT
SHALL ARISE, IT SHALL BE CONSTRUED MOST FAVOURABLY TOWARDS THE
CHOCTAWS."  7 STAT. 336. 

APPLYING THESE PRINCIPLES HERE, WE CONCLUDE THAT THE ENTIRE ARKANSAS
RIVER BELOW ITS CONFLUENCE WITH THE GRAND RIVER WAS WITHIN THE METES
AND BOUNDS OF THE TREATY GRANTS TO PETITIONERS.  THE STATE ARGUES THAT
THE TREATY TERMS "UP THE ARKANSAS" AND "DOWN THE "ARKANSAS" SHOULD BE
READ TO MEAN "ALONG THE BANK OF THE ARKANSAS RIVER."  HOWEVER, THE
UNITED STATES WAS COMPETENT TO SAY THE "NORTH SIDE" OR "BANK" OF THE
ARKANSAS RIVER WHEN THAT WAS WHAT IT MEANT, AS IT HAD IN THE 1817 GRANT
TO THE CHEROKEES IN THE ARKANSAS TERRITORY.  SEE 7 STAT. 158.  EVEN
MORE DAMAGING TO THE STATE'S ARGUMENT IS THE CONTEMPORANEOUS
INTERPRETATION OF THE TREATY LANGUAGE BY THE PRESIDENT AS REFLECTED IN
THE SPECIFIC LANGUAGE OF THE CHEROKEE PATENT, "DOWN THE CANADIAN RIVER
ON ITS NORTH BANK TO ITS JUNCTION WITH ARKANSAS RIVER; THENCE DOWN THE
MAIN CHANNEL OF ARKANSAS RIVER."  /8/  ACCORDING TO THE STATE, THE
ITALICIZED PART OF THIS DESCRIPTION SHOULD BE READ TO MEAN "DOWN THE
NORTH BANK OF THE MAIN BRANCH OF THE ARKANSAS RIVER."  HOWEVER, NOT
ONLY DOES THIS READING ITSELF SEEM TO INCLUDE PART OF THE RIVER BED--
THAT UNDERLYING THE "SECONDARY" BRANCHES-- BUT IT ALSO CONFLICTS WITH
THIS COURT'S INTERPRETATION OF THE TERM IN BREWER-ELLIOTT OIL & GAS CO.
V. UNITED STATES, 260 U.S. 77 (1922). 

THE FACTS INVOLVED IN BREWER-ELLIOTT WERE ESSENTIALLY SIMILAR TO
THOSE OF THE PRESENT CASES.  THERE THE UNITED STATES HAD ESTABLISHED A
RESERVATION FOR THE OSAGE INDIANS WHICH WAS BOUNDED ON ONE SIDE BY "THE
MAIN CHANNEL OF THE ARKANSAS RIVER."  260 U.S.,AT 81.  THE UNITED
STATES BROUGHT SUIT TO ESTABLISH THE INDIANS' RIGHT TO THE RIVER BED
AND THE OIL RESERVES BENEATH IT, AND THE STATE OF OKLAHOMA INTERVENED
TO CLAIM THAT THE RIVER BED HAD PASSED TO IT AT STATEHOOD.  THE CASE
CAME HERE AFTER THE COURT OF APPEALS HAD HELD THAT "WHETHER THE RIVER
WAS NAVIGABLE OR NON-NAVIGABLE, THE UNITED STATES, AS THE OWNER OF THE
TERRITORY THROUGH WHICH THE ARKANSAS FLOWED BEFORE STATEHOOD, HAD THE
RIGHT TO DISPOSE OF THE RIVER BED, AND HAD DONE SO, TO THE OSAGES." 
ID., AT 80.  THIS COURT HELD THAT IN THE REGION IN QUESTION THE
ARKANSAS RIVER WAS NONNAVIGABLE AND THAT "THE TITLE OF THE OSAGES AS
GRANTED CERTAINLY INCLUDED THE BED OF THE RIVER AS FAR AS THE MAIN
CHANNEL, BECAUSE THE WORDS OF THE GRANT EXPRESSLY CARRY THE TITLE TO
THAT LINE."  ID., AT 87.  THE QUESTION WHETHER IT WOULD HAVE BEEN
BEYOND THE POWER OF THE UNITED STATES TO MAKE THE GRANT HAD THE RIVER
BEEN NAVIGABLE WAS RESERVED FOR FUTURE DECISION. 

IN THE PRESENT CASES, THERE IS NO QUESTION THAT THE ARKANSAS RIVER
IS NAVIGABLE BELOW ITS JUNCTION WITH THE GRAND RIVER.  /9/  HOWEVER, WE
DO NOT UNDERSTAND THE STATE TO ARGUE THE QUESTION RESERVED IN BREWER
ELLIOTT.  INDEED, IT SEEMS WELL SETTLED THAT THE UNITED STATES CAN
DISPOSE OF LANDS UNDERLYING NAVIGABLE WATERS JUST AS IT CAN DISPOSE OF
OTHER PUBLIC LANDS.  SEE SHIVELY V. BOWLBY, 152 U.S. 1, 47-48 (1894). 
RATHER, THE QUESTION IS WHETHER THE UNITED STATES INTENDED TO CONVEY
TITLE TO THE RIVER BED TO PETITIONERS.  SEE ALASKA PACIFIC FISHERIES V.
UNITED STATES, SUPRA, AT 87; MOORE V. UNITED STATES, 157 F.2D 760, 763
(C.A. 9TH CIR. 1946); CF. DONNELLY V. UNITED STATES, 228 U.S. 243, 259
(1913). 

TURNING THEN TO THAT QUESTION, WE THINK IT CLEAR, AS DID THE COURT
OF APPEALS, THAT THE PARTIES TO THE TREATIES AND PATENTS DID NOT PAUSE
SPECIFICALLY TO PROVEDE FOR THE OWNERSHIP OF THE RIVER BED.  ACCORDING
TO THE STATE-- EVEN IF THE RIVER BED WAS WITHIN THE BOUNDS OF THE
GRANTS TO PETITIONERS-- WE NEED LOOK NO FURTHER BECAUSE "DISPOSALS BY
THE UNITED STATES DURING THE TERRITORIAL PERIOD ARE NOT LIGHTLY TO BE
INFERRED, AND SHOULD NOT BE REGARDED AS INTENDED UNLESS THE INTENTION
WAS DEFINITELY DECLARED OR OTHERWISE MADE VERY PLAIN."  UNITED STATES
V. HOLT STATE BANK, 270 U.S. 49, 55 (1926).  EVEN WERE WE LIMITED TO
THE TREATIES AND PATENTS ALONE, THE MOST SPECIFIC LANGUAGE OF THOSE
INSTRUMENTS IS IDENTICAL TO THAT WHICH WE SAID "EXPRESSLY"  CONVEYED
TITLE TO THE RIVER BED IN BREWER-ELLIOTT.  HOWEVER, NOTHING IN THE HOLT
STATE BANK CASE OR IN THE POLICY UNDERLYING ITS RULE OF CONSTRUCTION
(SEE SHIVELY V. BOWLBY, SUPRA, AT 49-50) REQUIRES THAT COURTS BLIND
THEMSELVES TO THE CIRCUMSTANCES OF THE GRANT IN DETERMINING THE INTENT
OF THE GRANTOR.  INDEED, THE COURT IN HOLT STATE BANK ITSELF EXAMINED
THE CIRCUMSTANCES IN DETAIL AND CONCLUDED "THE RESERVATION WAS NOT
INTENDED TO EFFECT SUCH A DISPOSAL."  270 U.S.,AT 58.  WE THINK THAT
THE SIMILAR CONCLUSION OF THE COURT OF APPEALS IN THIS CASE WAS IN
ERROR, GIVEN THE CIRCUMSTANCES OF THE TREATY GRANTS AND THE
COUNTERVAILING RULE OF CONSTRUCTION THAT WELL-FOUNDED DOUBT SHOULD BE
RESOLVED IN PETITIONERS' FAVOR. 

TOGETHER, PETITIONERS WERE GRANTED FEE SIMPLE TITLE TO A VAST TRACT
OF LAND THROUGH WHICH THE ARKANSAS RIVER WINDS ITS COURSE.  THE NATURAL
INFERENCE FROM THOSE GRANTS IS THAT ALL THE LAND WITHIN THEIR METES AND
BOUNDS WAS CONVEYED, INCLUDING THE BANKS AND BED OF RIVERS.  TO THE
EXTENT THAT THE DOCUMENTS SPEAK TO THE QUESTION, THEY ARE CONSISTENT
WITH AND TEND TO CONFIRM THIS NATURAL READING.  CERTAINLY THERE WAS NO
EXPRESS EXCLUSION OF THE BED OF THE ARKANSAS RIVER BY THE UNITED STATES
AS THERE WAS TO OTHER LAND WITHIN THE GRANTS. 

AS A PRACTICAL MATTER, RESERVATION OF THE RIVER BED WOULD HAVE MEANT
THAT PETITIONERS WERE NOT ENTITLED TO ENTER UPON AND TAKE SAND AND
GRAVEL OR OTHER MINERALS FROM THE SHALLOW PARTS OF THE RIVER OR ISLANDS
FORMED WHEN THE WATER WAS LOW.  IN MANY RESPECTS HOWEVER, THE INDIANS
WERE PROMISED VITUALLY COMPLETE SOVEREIGNTY OVER THEIR NEW LANDS.  SEE
ATLANTIC & PACIFIC R. CO. V. MINGUS, 165 U.S. 413, 435-436 (1897).  WE
DO NOT BELIEVE THAT PETITIONERS WOULD HAVE CONSIDERED THAT THEY COULD
HAVE BEEN PRECLUDED FROM EXERCISING THESE BASIC OWNERSHIP RIGHTS TO THE
RIVER BED, AND WE THINK IT VERY UNLIKELY THAT THE UNITED STATES
INTENDED OTHERWISE.  NOR DO WE BELIEVE THAT THE UNITED STATES WOULD
INTEND THAT IT RATHER THAN PETITIONERS HAVE TITLE TO THE DRY BED LEFT
FROM AVULSIVE CHANGES OF THE RIVER'S COURSE, WHICH AS THE DISTRICT
COURT NOTED ARE COMMON IN THIS AREA.  INDEED, THE UNITED STATES SEEM TO
HAVE HAD NO PRESENT INTEREST IN RETAINING TITLE TO THE RIVER BED AT
ALL; IT HAD ALL IT WAS CONCERNED WITH IN ITS NAVIGATIONAL EASEMENT VIA
THE CONSTITUTIONAL POWER OVER COMMERCE.  CF. POLLARD V. HAGAN, 3 HOW. 
212, 229 (1845). 

FINALLY, IT MUST BE REMEMBERED THAT THE UNITED STATES ACCOMPANIED
ITS GRANTS TO PETITIONERS WIH THE PROMISE THAT "NO PART OF THE LAND
GRANTED TO THEM SHALL EVER BE EMBRACED IN ANY TERRITORY OR STATE."  IN
LIGHT OF THIS PROMISE, IT IS ONLY BY THE PUREST OF LEGAL FICTIONS THAT
THERE CAN BE FOUND EVEN A SEMBLANCE OF AN UNDERSTANDING (ON WHICH
OKLAHOMA NECESSARILY PLACES ITS PRINCIPAL RELIANCE), THAT THE UNITED
STATES RETAINED TITLE IN ORDER TO GRANT IT TO SOME FUTURE STATE. 

WE THUS CONCLUDE THAT THE UNITED STATES INTENDED TO AND DID CONVEY
TITLE TO THE BED OF THE ARKANSAS RIVER BELOW ITS JUNCTION WITH THE
GRAND RIVER WITHIN THE PRESENT STATE OF OKLAHOMA IN THE GRANTS IT MADE
TO PETITIONERS.  THE JUDGMENTS OF THE COURT OF APPEALS ARE THEREFORE
REVERSED, AND THE CASES REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

/1/  TOGETHER WITH NO. 59, CHEROKEE NATION OR TRIBE OF INDIANS IN
OKLAHOMA V. OKLAHOMA ET AL., ALSO ON PETITION FOR WRIT OF CERTIORARI TO
THE SAME COURT. 

/1A/  E.G., TREATY OF OCTOBER 2, 1798, 7 STAT. 62; TREATY OF
DECEMBER 17, 1801, 7 STAT. 66; TREATY OF OCTOBER 25, 1805, 7 STAT. 93. 

/2/  SEE JOHNSON V. MCINTOSH, 8 WHEAT.  543 (1823); FLETCHER V.
PECK, 6 CRANCH 87, 142-143 (1810). 

/3/  SEE ACT OF MARCH 26, 1804, SEC. 15, 2 STAT. 289.  IN 1802, EVEN
BEFORE IT HAD ACQUIRED NEW LANDS WEST OF THE MISSISSIPPI, "THE UNITED
STATES AGREED TO EXTINGUISH INDIAN TITLE WITHIN THE LIMITS OF THE
STATES AS SOON AS IT COULD BE DONE 'PEACEABLE (SIC) AND ON REASONABLE
TERMS.'"  U.S. INTERIOR DEPT., FEDERAL INDIAN LAW 180-181 (1958). 

/4/  SEE N. 3, SUPRA. 

/5/  THE EFFORTS ON BEHALF OF THE CHEROKEES REMAINING IN GEORGIA
INCLUDED TWO CASES THAT WERE BROUGHT TO THIS COURT, CHEROKEE NATION V.
GEORGIA, 5 PET. 1 (1831), AND WORCESTER V. GEORGIA, 6 PET. 515 (1832). 
FOR A RECENT ACCOUNT OF THESE AND OTHER CHEROKEE EFFORTS, SEE BURKE,
THE CHEROKEE CASES:  A STUDY IN LAW, POLITICS, AND MORALITY, 21
STAN.L.REV.  500 (1969).  SEE GENERALLY FEDERAL INDIAN LAW, SUPRA, N.
3, AT 180-200. 

/6/  SEE MARLIN V. LEWALLEN, 276 U.S. 58, 61 (1928); CHOATE V.
TRAPP, 224 U.S. 665, 667-668 (1912). 

/7/  THE COURTS BELOW DID NOT RESOLVE THE DISPUTE BETWEEN
PETITIONERS, AND WE LIKEWISE DO NOT PASS ON THAT QUESTION. 

/8/  THIS CONSTRUCTION OF THE TREATY TERM "DOAN THE ARKANSAS"
INDICATES THAT AT THE MINIMUM BOUNDARY OF THE CHOCTAWS WAS ALSO THE
MIDDLE OF THE MAIN CHANNEL.  CONGRESS WAS ACCUSTOMED TO USING THE TERMS
"UP" OR "DOWN" THE RIVER WHEN DESIGNATING A NAVIGABLE RIVER AS THE
BOUNDARY BETWEEN STATES, SEE, E.G., ACT OF MARCH 2, 1819, SEC. 2, 3
STAT. 490 (ALABAMA); ACT OF FEBRUARY 20, 1811, SEC. 1, 2 STAT. 641
(LOUISIANA); AND, WHEN IT DID SO, THE BOUNDARY WAS SET AS THE MIDDLE OF
THE MAIN CHANNEL.  SEE ARKANSAS V. MISSISSIPPI, 250 U.S. 39 (1919);
IOWA V. ILLINOIS, 147 U.S. 1 (1893). 

GIVEN THIS CONGRESSIONAL USAGE, IT SEEMS NATURAL FOR THE PRESIDENT,
ON WHOSE BEHALF THE TREATIES HAD BEEN NEGOTIATED, TO HAVE GIVEN THE
SAME INTERPRETATION TO IDENTICAL LANGUAGE IN THE ANALOGOUS SITUATION
INVOLVING THE BOUNDARY BETWEEN PETITIONERS CHOCTAW AND CHEROKEE
NATIONS, WHICH HAD LONG BEEN CONSIDERED SOVEREIGN ENTITIES.  IN FACT,
THIS COURT RECOGNIZED THE ANALOGY IN BARNEY V. KEOKUK, 94 U.S. 324, 337
(1877), A CASE INVOLVING A GRANT BOUNDED BY THE MISSISSIPP RIVER, WHEN
IT QUOTED WITH APPARENT APPROVAL THE FOLLOWING LANGUAGE FROM HAIGHT V.
CITY OF KEOKUK, 4 IOWA 199, 213 (1856): "THE GRANT TO THE (INDIANS) WAS
TO THEM AS PERSONS, AND NOT AS A POLITICAL BODY.  THE POLITICAL
JURISDICTION REMAINED IN THE UNITED STATES.  HAD THE GRANT BEEN TO THEM
AS A POLITICAL SOCIETY, IT WOULD HAVE BEEN A QUESTION OF BOUNDARY
BETWEEN NATIONS OR STATES, AND THEN THE LINE WOULD HAVE BEEN THE MEDIUM
FILUM AQUAE, AS IT IS NOW BETWEEN IOWA AND ILLINOIS."  THE GRANTS TO
PETITIONERS WERE UNDOUBTEDLY TO THEM AS "A POLITICAL SOCIETY," AND ANY
"WELL FOUNDED DOUBT" REGARDING THE BOUNDARIES MUST, OF COURSE, BE
RESOLVED IN THEIR FAVOR.     /9/  THE DISTRICT COURT TOOK JUDICIAL
NOTICE OF THE NAVIGABILITY AT ALL RELEVANT TIMES OF THOSE PORTIONS OF
THE ARKANSAS RIVER IN QUESTION, AND THAT ISSUE IS NOT IN DISPUTE HERE. 
IN THE BREWER-ELLIOTT CASE, THIS COURT AFFIRMED THE FINDING OF THE
DISTRICT COURT THAT "THE HEAD OF NAVIGATION IS AND WAS THE MOUTH OF THE
GRAND RIVER."  260 U.S.,AT 86. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE COURT'S OPINION, I ADD A FEW WORDS. 

THE CHEROKEES, PURSUANT TO TREATIES WITH THE UNITED STATES,
EXCHANGED THEIR ABORIGINAL DOMAIN IN THE EAST FOR MORE THAN 14,000,000
ACRES OF LAND WEST OF THE MISSISSIPPI, THEN IN INDIAN TERRITORY BUT NOW
A PART OF OKLAHOMA.  PURSUANT TO PROMISES IN THE TREATIES, THE UNITED
STATES ON DECEMBER 31, 1838, ISSUED A PATENT TO THE CHEROKEES
DESCRIBING THE LANDS BY METES AND BOUNDS AND CONVEYING THE LANDS HERE
IN QUESTION IN FEE SIMPLE.  /1/ 

A PORTION OF THE ARKANSAS RIVER IS ENTIRELY WITHIN THE GRANT TO THE
CHEROKEES.  IT IS THEREFORE A MYSTERY WHY ALL OF THE BED IN THAT
PORTION OF THE RIVER WAS NOT CONVEYED TO THE CHEROKEES.  THE RIVER BED
WAS NOT RESERVED TO THE UNITED STATES BY THE PATENT.  THE UNITED
STATES, HOWEVER, MADE OTHER RESERVATIONS:  (1) THE RIGHT TO PERMIT
OTHER TRIBES TO GET SALT ON THE WESTERN PART OF THE GRANT; (2) ANY
RIGHTS TO LANDS ASSIGNED THE QUAPAWS WHICH TURNED OUT TO BE WITHIN THE
BOUNDS OF THESE CHEROKEE LANDS; (3) THE RIGHT TO ESTABLISH AND MAINTAIN
MILITARY POSTS AND ROADS TOGETHER WITH THE FREE USE OF LAND, TIMBER,
FUEL, AND MATERIALS FOR THE CONSTRUCTION AND SUPPORT OF THOSE
FACILITIES.  SINCE THE UNITED STATES MADE SOME RESERVATIONS BUT MADE NO
RESERVATIONS OF THE RIVER BED, AND IF FAIR DEALING IS THE STANDARD, ONE
WOULD CONCLUDE, I THINK, THAT THE RIVER BED WAS THE TAIL THAT WENT WITH
THE HIDE. 

AS RESPECTS THE CHOCTAWS, ANOTHER SECTION OF THE ARKANSAS RIVER WAS
THE BOUNDARY BETWEEN THE CHOCTAW AND THE CHEROKEE GRANTS.  WHATEVER MAY
BE THE RIGHTS BETWEEN THE CHEROKEES AND THE CHOCTAWS, IT SEEMS CLEAR TO
ME THAT SINCE ONE PORTION OF THE ARKANSAS WAS WITHIN THE EXTERIOR
BOUNDARIES OF THE CHEROKEE GRANT AND ANOTHER PORTION WAS WITHIN THE
EXTERIOR BOUNDARIES OF THE CHOCTAW GRANT, THE RIVER BED OF EACH OF
THOSE SEGMENTS WENT TO THE RESPECTIVE GRANTEES IN FEE SIMPLE. 

HERE AN ENTIRE REGION WAS CONVEYED TO THESE TRIBES AS PART OF THEIR
RESETTLEMENT, /2/  WITH ASSURANCES OF SELF-GOVERNMENT /3/  AND WITH
PLEDGES THAT THEIR NEW HOMELANDS WOULD NEVER BE PART OF ANY STATE.  /4/
THEY WERE INDEED CONSTITUTED AS THE SOVEREIGN AUTONOMY ESTABLISHED IN
LIEU OF A PROSPECTIVE STATE.  /5/ 

THE TITLE HELD BY THESE TRIBES WAS NOT THE USUAL ABORIGINAL INDIAN
TITLE OF USE AND OCCUPANCY BUT A FEE SIMPLE, CF. UNITED STATES V. CREEK
NATION, 295 U.S. 103, TERMINABLE IF AND WHEN THESE INDIAN NATIONS
CEASED TO EXIST OR ABANDONED THE TERRITORY-- CONDITIONS NOT YET
OCCURRING.  THE RELIANCE BY THE COURT OF APPEALS ON UNITED STATES V.
HOLT STATE BANK, 270 U.S. 49, WAS THEREFORE MISPLACED AS THAT CASE
INVOLVED ONLY THE ABORIGINAL INDIAN TITLE OF USE AND OCCUPANCY.  ID.,
AT 58-59. 

THE UNITED STATES, SPEAKING THROUGH THE SOLICITOR GENERAL, HAS FILED
A BRIEF AMICUS TAKING THAT POSITION IN THESE CASES AND MAINTAINING IT
VIGOROUSLY ON ORAL ARGUMENT.  IT CONCEDES, AS IT MUST IN LIGHT OF
SHIVELY V. BOWLBY, 152 U.S. 1, 49-50, THAT WHILE THE UNITED STATES
HOLDS A DOMAIN AS A TERRITORY, IT MAY CONVEY AWAY THE RIGHT TO THE BED
OF A NAVIGABLE RIVER, NOT RETAINING THAT PROPERTY FOR TRANSFER TO A
FUTURE STATE, THOUGH AS STATED IN HOLT STATE BANK THAT PURPOSE IS "NOT
LIGHTLY TO BE INFERRED, AND SHOULD NOT BE REGARDED AS INTENDED UNLESS
THE INTENTION WAS DEFINITELY DECLARED OR OTHERWISE MADE VERY PLAIN." 
270 U.S.,AT 55.  SUCH EXCEPTIONAL CIRCUMSTANCES ARE PRESENT HERE. 

THE TREATIES WITH THE PRESENT INDIANS SOLEMNLY ASSURED THEM THAT
THESE NEW HOMELANDS WOULD NEVER BE MADE PART OF A STATE OR TERRITORY. 
SO IT IS REASONABLE TO INFER THAT THE UNITED STATES DID NOT HAVE A PLAN
TO HOLD THIS RIVER BED IN TRUST FOR A FUTURE STATE.  AS THE UNITED
STATES SAYS, WE WOULD HAVE TO INDULGE "A CYNICAL FICTION WITHOUT ANY
BASIS IN FACT" TO ATTRIBUTE SUCH A PURPOSE TO THE PARTIES.  SIXTY YEARS
LATER, HOWEVER, CONGRESS WAS INTENT IN CREATING A STATE OUT OF THESE
LANDS.  /6/ 

FRICTION BETWEEN THE INDIANS AND THE WHITES WHO SOUGHT TO SETTLE ON
THESE LANDS MOUNTED.  AS TIME PASSED THE AMERICAN ATTITUDE TOWARDS
THESE TREATIES BECAME AS HOSTILE AS THE OPINION BELOW.  THE
COMMISSIONER OF INDIAN AFFAIRS IN HIS 1886 REPORT SPOKE OF THE
EXPLOITATION OF MANY INDIANS BY A FEW INDIANS WHO HAD A MONOPOLY OF
LAND AND HE ATTACKED THE TREATIES AS SUCH: 

"(IT IS PERFECTLY PLAIN TO MY MIND THAT THE TREATIES NEVER
CONTEMPLATED THE UN-AMERICAN AND ABSURD IDEA OF A SEPARATE NATIONALITY
IN OUR MIDST, WITH POWER AS THEY MAY CHOOSE TO ORGANIZE A GOVERNMENT OF
THEIR OWN, OR NOT TO ORGANIZE ANY GOVERNMENT NOR ALLOW ONE TO BE
ORGANIZED, FOR THE ONE PROPOSITION CONTAINS THE OTHER.  THESE INDIANS
HAVE NO RIGHT TO OBSTRUCT CIVILIZATION AND COMMERCE AND SET UP AN
EXCLUSIVE CLAIM TO SELF-GOVERNMENT, ESTABLISHING A GOVERNMENT WITHIN A
GOVERNMENT, AND THEN EXPECT AND CLAIM THAT THE UNITED STATES SHALL
PROTECT THEM FROM ALL HARM, WHILE INSISTING THAT IT SHALL NOT BE THE
ULTIMATE JUDGE AS TO WHAT IS BEST TO BE DONE FOR THEM IN A POLITICAL
POINT OF VIEW.  I REPEAT, TO MAINTAIN ANY SUCH VIEW IS TO ACKNOWLEDGE A
FOREIGN SOVEREIGNTY, WITH THE RIGHT OF EMINENT DOMAIN, UPON AMERICAN
SOIL-- A THEORY UTTERLY REPUGNANT TO THE SPIRIT AND GENIUS OF OUR LAWS,
AND WHOLLY UNWARRANTED BY THE CONSTITUTION OF THE UNITED STATES."  H.R.
EXEC. DOC. NO. 1, PT. 5, 49TH CONG., 2D SESS., 87.  BUT CF. THE VIEWS
OF ROBERT L. OWEN, U.S. INDIAN AGENT, IN H.R. EXEC. DOC. NO. 1, PT. 5,
VOL. 2, 50TH CONG., 2D SESS., 134-135 (1888).  AND SEE A. DEBO, THE
RISE AND FALL OF THE CHOCTAW REPUBLIC 245 ET SEQ. (1934). 

A COMMISSION WAS CREATED TO NEGOTIATE AN AGREEMENT WITH THESE TRIBES
SUPERSEDING THE EARLIER TREATIES, ALL AS RELATED IN CHOATE V. TRAPPE,
224 U.S. 665, 667-670.  AN AGREEMENT WAS IN TIME REACHED WHEREBY TRIBAL
LANDS WERE ALLOTTED TO INDIVIDUAL MEMBERS OF THE TRIBE, WITH ANY
REMAINING TRIBAL LAND PASSING TO THE UNITED STATES AS TRUSTEES FOR THE
INDIANS.  34 STAT. 137.  THE BED OF THE ARKANSAS WAS NOT ALLOTTED.  THE
NEXT YEAR-- 1907-- OKLAHOMA WAS ADMITTED TO THE UNION ON AN EQUAL
FOOTING WITH THE ORIGINAL STATES.  34 STAT. 267.  CERTAINLY THIS
CESSION BY THE TRIBES OF THEIR INTEREST IN THE RIVER BED OF THE
ARKANSAS TO THE UNITED STATES IN TRUST FOR THEIR MEMBERS WAS NO
POSSIBLE VEHICLE FOR TRANSFERRING THAT TITLE TO OKLAHOMA.  /7/ 

THE COURT PROPERLY MAKES THESE CASES CANDIDATES FOR APPLICATION OF
THE CLASSIC RULE THAT TREATIES OR AGREEMENTS WITH INDIANS ARE TO BE
CONSTRUED IN THEIR FAVOR, NOT IN FAVOR OF COMMERCIAL INTERESTS THAT
REPEATEDLY IN OUR HISTORY HAVE SOUGHT TO EXPLOIT THEM.  THE IDEA WAS
PERHAPS BEST STATED IN UNITED STATES V. WINANS, 198 U.S. 371, 380-381: 

"(WE WILL CONSTRUE A TREATY WITH THE INDIANS AS 'THAT UNLETTERED
PEOPLE' UNDERSTOOD IT, AND 'AS JUSTICE AND REASON DEMAND IN ALL CASES
WHERE POWER IS EXERTED BY THE STRONG OVER THOSE TO WHOM THEY OWE CARE
AND PROTECTION,' AND COUNTERPOISE THE INEQUALITY 'BY THE SUPERIOR
JUSTICE WHICH LOOKS ONLY TO THE SUBSTANCE OF THE RIGHT WITHOUT REGARD
TO TECHNICAL RULES.'  119 U.S. 1; 175 U.S. 1.  HOW THE TREATY IN
QUESTION WAS UNDERSTOOD MAY BE GATHERED FROM THE CIRCUMSTANCES." 

WE SHOULD THEREFORE RESOLVE ANY DOUBTS IN THESE CASES IN FAVOR OF
THESE INDIANS, MINDFUL OF WHAT PRESIDENT JACKSON SAID AT A MEETING WITH
THE CHOCTAWS AND CHICKASAWS: 

     "BROTHERS, LISTEN:  THE ONLY PLAN BY WHICH THIS CAN BE DONE,

  AND TRANQUILLITY FOR YOUR PEOPLE OBTAINED, IS, THAT YOU PASS

  ACROSS THE MISSISSIPPI TO A COUNTRY IN ALL RESPECTS EQUAL, IF NOT

  SUPERIOR, TO THE ONE YOU HAVE.  YOUR GREAT FATHER WILL GIVE IT TO

  YOU FOR EVER, THAT IT MAY BELONG TO YOU AND YOUR CHILDREN WHILE

  YOU SHALL EXIST AS A NATION, FREE FROM ALL INTERRUPTION. 

  .          .          .          . 

"PEACE INVITES YOU THERE; ANNOYANCE WILL BE LEFT BEHIND; WITHIN YOUR
LIMITS, NO STATE OR TERRITORIAL AUTHORITY WILL BE PERMITTED; INTRUDERS,
TRADERS, AND ABOVE ALL, ARDENT SPIRITS, SO DESTRUCTIVE TO HEALTH AND
MORALS, WILL BE KEPT FROM AMONG YOU, ONLY AS THE LAWS AND ORDINANCES OF
YOUR NATION MAY SANCTION THEIR ADMISSION."  S. DOC. NO. 512, 23D CONG.,
1ST SESS., VOL. 2, 240-242. 

ONLY THE CONTINUATION OF A REGIME OF DISCRIMINATION AGAINST THESE
PEOPLE, /8/  WHICH LONG PLAGUED THE RELATIONS BETWEEN THE RACES, CAN
NOW DENY THEM THIS JUST CLAIM. 

/1/  IN ADDITION TO THE MILLIONS OF ACRES CONVEYED TO THE CHEROKEE
IN FEE SIMPLE, WHICH INCLUDED THE LAND SURROUNDING THE SEGMENT OF THE
ARKANSAS RIVER HERE IN QUESTION, THEY WERE GUARANTEED LANDS TO THE WEST
OF THAT TRACT AS "A PERPETUAL OUTLET WEST" WHICH PROVIDED FOR "FREE AND
UNMOLESTED USE" OF THOSE LANDS. 

/2/  THE DETAILS OF THE REMOVAL OF THE CHEROKEES FROM THEIR
ANCESTRAL LANDS ARE RELATED IN WESTERN CHEROKEE INDIANS V. UNITED
STATES, 27 CT.CL. 1, 20 ET SEQ. WHILE 6,000 HAD MOVED WEST TO THEIR NEW
LANDS BY 1838, 18,000 WERE STILL IN THEIR ANCESTRAL HOMES. 

"THE EASTERN CHEROKEES WERE PRISONERS IN GEORGIA, UNDER THE GUARD OF
5,000 UNITED STATES SOLDIERS, WHO HAD HUNTED THEM DOWN FROM THEIR
MOUNTAINS AND DRIVEN THEM OUT OF THEIR VALLEYS AND WERE NOW BRINGING
THEM TO THE TERMS OF AN ENFORCED EMIGRATION."  ID., AT 20. 

THEY WERE FINALLY FORCIBLY REMOVED BY THE U.S. ARMY UNDER GENERAL
SCOTT: 

"HE MOVED QUICKLY AND SUCCESSFULLY, AND HAS THUS RECORDED THE MOST
PAINFUL EXPERIENCE OF HIS MILITARY LIFE: 

"FOOD IN ABUNDANCE HAD BEEN PROVIDED AT THE DEPOTS, AND WAGONS
ACCOMPANIED EVERY DETACHMENT OF TROOPS.  THE GEORGIANS DISTINGUISHED
THEMSELVES BY THEIR HUMANITY AND TENDERNESS.  BEFORE THE FIRST NIGHT
THOUSANDS-- MEN, WOMEN, AND CHILDREN, SICK AND WELL-- WERE BROUGHT IN.
POOR CREATURES.  THEY HAD OBSTINATELY REFUSED TO PREPARE FOR THE
REMOVAL.  MANY ARRIVED HALF STARVED, BUT REFUSED THE FOOD THAT WAS
PRESSED UPON THEM.  AT LENGTH THE CHILDREN, WITH LESS PRIDE, GAVE WAY,
AND NEXT THEIR PARENTS.  THE GEORGIANS WERE THE WAITERS ON THE
OCCASION, MANY OF THEM WITH FLOWING TEARS.  THE AUTOBIOGRAPHER HAS
NEVER WITNESSED A SCENE OF DEEPER PATHOS.'"  ID., AT 23. 

FOR EARLY INCIDENTS INVOLVING THIS COURT IN ASPECTS OF THE REMOVAL
PROBLEMS SEE M. JAMES, ANDREW JACKSON:  PORTRAIT OF A PRESIDENT 280
281, 304-305 (1937); 1 C. WARREN, SUPREME COURT IN U.S. HISTORY, C. 19
(1937); WORCESTER V. GEORGIA, 6 PET. 515. 

/3/  OUR AGENTS SAID THE FOLLOWING TO THE CHEROKEE COUNCIL ON JULY
31, 1837:  "HERE YOU ARE SUBJECTED TO LAWS, IN THE MAKING OF WHICH YOU
HAVE NO VOICE; LAWS WHICH ARE UNSUITED TO YOUR CUSTOMS, AND ABHORRENT
TO YOUR IDEAS OF LIBERTY.  THERE, CHEROKEES, YOU WILL MAKE LAWS FOR
YOURSELVES, AND ESTABLISH RNMENT AS IN YOUR OWN ESTIMATION MAY BE BEST
SUITED TO YOUR CONDITION.  THERE, CHEROKEES, IN YOUR NEW COUNTRY, YOU
WILL BE FAR BEYOND THE LIMITS OR JURISDICTION OF ANY STATE OR
TERRITORY.  THE COUNTRY WILL BE YOURS; YOURS EXCLUSIVELY.  NO OTHER
PEOPLE CAN MAKE CLAIM TO IT, AND YOU WILL BE PROTECTED BY THE VIGILANT
POWER OF THE UNITED STATES AGAINST THE INTRUSION OF THE WHITE MAN."  S.
DOC. NO. 120, 25TH CONG., 2D SESS., 988. 

/4/  THE TREATY WITH THE CHEROKEES OF DECEMBER 29, 1835, 7 STAT.
478, PROVIDED IN ARTICLE 5 THAT NO LANDS CONVEYED SHALL WITHOUT THE
CONSENT OF THE CHEROKEES EVER "BE INCLUDED WITHIN THE TERRITORIAL
LIMITS OR JURISDICTION OF ANY STATE OR TERRITORY."  AND SEE ARTICLE IV
OF THE TREATY OF SEPT. 27, 1830, 7 STAT. 333. 

/5/  THE TREATY WITH THE CHEROKEES OF MAY 6, 1828, 7 STAT. 311,
SPOKE OF THE DESIRE OF THE UNITED STATES TO PROVIDE THE CHEROKEES "A
PERMANENT HOME, AND WHICH SHALL, UNDER THE MOST SOLEMN GUARANTEE OF THE
UNITED STATES, BE, AND REMAIN, THEIRS FOREVER-- A HOME THAT SHALL
NEVER, IN ALL FUTURE TIME, BE EMBARRASSED BY HAVING EXTENDED AROUND IT
THE LINES, OR PLACED OVER IT THE JURISDICTION OF A TERRITORY, OR STATE,
NOR BE PRESSED UPON BY THE EXTENSION, IN ANY WAY, OF ANY OF THE LIMITS
OF ANY EXISTING TERRITORY OR STATE." 

/6/  THE STORY OF THE EXPLOITATION OF INDIANS BY STATE AND LOCAL
AGENCIES HAS BEEN RECENTLY SUMMARIZED BY WILLIAM BRANDON: 

"TERMINATION IS TRULY A WORD OF ILL OMEN TO TRIBAL INDIANS.  ITS
MEANING IN INDIAN AFFAIRS IS THE TERMINATION OF 'FEDERAL
RESPONSIBILITY,' THE RESPONSIBILITY OF THE FEDERAL GOVERNMENT TO ACT AS
TRUSTEE FOR INDIAN LANDS, RIGHTS, AND RESOURCES; THE RESPONSIBILITY TO
PROTECT INDIAN GROUPS IN THESE RIGHTS AND POSSESSIONS-- PROTECT THEM
PARTICULARLY AGAINST STATES, COUNTIES, CITIES, OR OTHER LOCAL POWERS
THAT MIGHT DIVEST THEM OF THEIR RIGHTS AND POSSESSIONS-- AND TO PROVIDE
CERTAIN SERVICES SUCH AS EDUCATION AND HEALTH. 

"THESE RESPONSIBILITIES ARE BASED UPON TREATY PROMISES OR OTHER
EQUALLY LEGAL COMMITMENTS, IN WHICH THE FEDERAL GOVERNMENT PLEDGED, IN
RETURN FOR CESSIONS OF VALUE, TO RENDER UNTO SPECIFIC INDIAN GROUPS
SPECIFIC RIGHTS AND THEIR PROTECTION, PLUS THE PROVISION OF SCHOOLS,
HOSPITALS, SAWMILLS, TEACHERS, DOCTORS, TOOLS AND IMPLEMENTS, ROADS,
SUPPLIES WHEN NEEDED-- ALL THE SERVICES OF THE MODERN WORLD, TO BE
SUPPLIED AND ADMINISTERED UNDER STATE AND LOCAL JURISDICTIONS, BECAUSE
OF WELL-FOUNDED APPREHENSIONS THAT STATE AND LOCAL JURISDICTIONS MIGHT
NOT BE TRUSTWORTHY IN CARRYING OUT SUCH PROMISES."  PROGRESSIVE,
JANUARY 1970, P. 38.     E. CAHN, OUR BROTHER'S KEEPER 21 (1969),
STATES THE SAME THEME: 

"THE INDIAN KNOWS THAT TERMINATION TAKES MANY FORMS.  HE CAN BE
FLOODED OUT OF HIS RESERVATION; HE CAN BE RELOCATED; HIS RESERVATION
CAN BE SOLD OUT FROM UNDER HIM IF HE CANNOT MEET TAXES TO WHICH IT IS
SUBJECT.  HIS LIMITED POWER TO PROTECT HIMSELF ON THE RESERVATION FROM
LOCAL PREJUDICE AND DISCRIMINATION CAN BE WIPED AWAY BY THE
SUBSTITUTION OF STATE LAW, AND STATE JURISDICTION FOR TRIBAL
JURISDICTION.  ALL OF THESE, THE INDIAN KNOWS, ARE VARIANTS ON ONE
BASIC TRUTH:  THE UNITED STATES GOVERNMENT DOES NOT KEEP ITS PROMISES. 
SOMETIMES IT BREAKS THEM ALL AT ONCE, AND SOMETIMES SLOWLY, ONE AT A
TIME.  THE RESULT IS THE SAME-- TERMINATION.  WHEN THE INDIAN IS ASKED
TO FORSAKE HIS STATUS UNDER THE BUREAU IN EXCHANGE FOR CASH, FOR
PROMISES OF TECHNICAL AID, FOR PUBLIC WORKS IMPROVEMENTS AND INDUSTRIAL
DEVELOPMENTS, HE HAS LEARNED TO EXPECT TWO THINGS: 

" . . . THAT THE PROMISES WILL NOT BE KEPT. 

" . . . THAT EVEN IF THEY SHOULD BE KEPT, THEY WILL PROVE INADEQUATE
TO MAINTAIN THE INDIAN AT EVEN HIS RESERVATION LEVEL OF DEPRIVATION." 

/7/  THE CHEROKEE NATIONA CLAIMS TO HAVE NEGOTIATED SOME 13 SAND AND
GRAVEL LEASES FOR THE BED OF THE ARKANSAS RIVER BETWEEN APRIL 12, 1883,
AND MAY 27, 1893-- PRIOR TO THE ADMISSION OF OKLAHOMA INTO THE UNION. 
THE RECORD DOES NOT DISCLOSE THE DATE WHEN THE STATE OF OKLAHOMA FIRST
ASSUMED THE ROLE OF LESSOR OF THE RIVER BED, ALTHOUGH SEVERAL CASES
HAVE INVOLVED SUCH LEASES BY THE STATE.  SEE, E.G., LYNCH V. CLEMENTS,
263 P.2D 153. 

/8/  SEQUOYAH, THE GREAT CHEROKEE FROM TENNESSEE, WHOSE HOME STOOD
ON THE BANKS OF THE LITTLE TENNESSEE RIVER, WAS CRIPPLED FOR LIFE ON A
HUNTING TRIP; AND IN HIS INACTIVE LIFE THEREAFTER INVENTED THE CHEROKEE
SYLLABARY, INSPIRED BY THE "TALKING LEAVES" OR WRITTEN AND PRINTED
PAGES BY WHICH THE WHITES COMMUNICATED.  HIS SYLLABARY CONTAINS SOME 80
SYLLABLES IN THE CHEROKEE LANGUAGE.  HIS MEMORY IS PERPETUATED IN THE
NAME OF THE GENUS OF CALIFORNIA GIANT REDWOODS AND HIS STATUE WAS
PLACED IN STATUARY HALL OF THE NATIONAL CAPITOL IN 1917. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE BLACK
JOIN, DISSENTING. 

AT ISSUE IN THESE CASES IS THE OWNERSHIP OF THE LANDS UNDERLYING THE
ARKANSAS RIVER FROM ITS CONFLUENCE WITH THE GRAND RIVER IN OKLAHOMA
DOWNSTREAM TO THE WESTERN BORDER OF ARKANSAS.  THE ARKANSAS RIVER IS A
NAVIGABLE STREAM BELOW, BUT NOT ABOVE, ITS JUNCTION WITH THE GRAND
RIVER.  THE CONTENDING PARTIES ARE THREE INDIAN TRIBES ON THE ONE HAND
THE THE STATE OF OKLAHOMA ON THE OTHER.  THE CHEROKEES BASE THEIR CLAIM
ON A UNITED STATES PATENT OF 1838 AND UNDERLYING TREATIES, THE CHOCTAWS
AND THE CHICKASAWS ON AN 1842 PATENT ALSO ISSUED IN FULFILLMENT OF
PRIOR TREATY COMMITMENTS.  THE STATE CLAIMS UNDER THE SETTLED DOCTRINE
THAT A NEWLY ADMITTED STATE TAKES TITLE TO THE BEDS OF ALL NAVIGABLE
RIVERS WITHIN ITS BORDERS; THE STATE DENIES THAT THE PRIOR PATENTS
CONVEYED THE RIVER BED.  THE PATENT TO THE CHEROKEES INCLUDED PROPERTY
ON BOTH SIDES OF THE ARKANSAS RIVER FROM ITS CONFLUENCE WITH THE GRAND
RIVER DOWNSTREAM TO ITS JUNCTION WITH THE CANADIAN RIVER.  FROM THE
CANADIAN RIVER TO THE ARKANSAS BORDER, THE ARKANSAS RIVER WAS THE
BOUNDARY BETWEEN CHEROKEE LANDS ON THE NORTH SIDE AND THE CHOCTAW LANDS
ON THE SOUTH. 

ACCORDING TO THE COURT, THE INDIANS BECAME THE OWNERS OF ALL OF THE
RIVER BED BETWEEN THE GRAND RIVER AND THE CANADIAN RIVER IS CHEROKEE
PROPERTY BECAUSE THE METES AND BOUNDS DESCRIPTION OF THE GRANT CROSSED
THE RIVER WITHOUT PURPORTING TO EXCLUDE THE RIVER BED; THE REMAINING
PORTION OF THE RIVER BED IS SAID TO BE INDIAN PROPERTY BECAUSE BY
ORDINARY CONVEYANCING STANDARDS THE RELEVANT PATENTS AND TREATIES
REVEAL AN INTENT BY THE UNITED STATES TO CONVEY THE RIVER BED TO THE
TRIBES.  I DIFFER WITH THE COURT AS TO BOTH PORTIONS OF THE RIVER BED. 

I 

AS FAR AS RIPARIAN RIGHTS ARE CONCERNED-- AND FOR OTHER PURPOSES TOO
- THE POLICY AND APPLICABLE LAWS OF THE UNITED STATES HAVE ALWAYS
DISTINGUISHED BETWEEN NAVIGABLE AND NONNAVIGABLE STREAMS.  SECTION 931
OF TITLE 43 OF THE U.S.C.  REV. STAT. SEC. 2476, WHICH DATES FROM 1796,
DOES SO UNMISTAKABLY: 

"ALL NAVIGABLE RIVERS, WITHIN THE TERRITORY OCCUPIED BY THE

  PUBLIC LANDS, SHALL REMAIN AND BE DEEMED PUBLIC HIGHWAYS; AND, IN

  ALL CASES WHERE THE OPPOSITE BANKS OF ANY STREAMS NOT NAVIGABLE

  BELONG TO DIFFERENT PERSONS, THE STREAM AND THE BED THEREOF SHALL

  BECOME COMMON TO BOTH." 

THE OWNERS OF LAND ADJACENT TO A NONNAVIGABLE STREAM OWN THE RIVER BED,
BUT THE SURVEYS OF PUBLIC LANDS STOP WITH THE BANKS OF NAVIGABLE
STREAMS; CONVEYANCES BY THE UNITED STATES OF LAND LOCATED ON A
NAVIGABLE RIVER CARRY NO INTEREST IN THE RIVER BED UNDER FEDERAL LAW. 
RAILROAD CO. V. SCHURMEIR, 7 WALL.  272, 288-289 (1869), MADE THE
DIFFERENCE VERY CLEAR: 

"(THE COURT DOES NOT HESITATE TO DECIDE, THAT CONGRESS, IN MAKING A
DISTINCTION BETWEEN STREAMS NAVIGABLE AND THOSE NOT NAVIGABLE, INTENDED
TO PROVIDE THAT THE COMMON LAW RULES OF RIPARIAN OWNERSHIP SHOULD APPLY
TO LANDS BORDERING ON THE LATTER, BUT THAT THE TITLE TO LANDS BORDERING
ON NAVIGABLE STREAMS SHOULD STOP AT THE STREAM, AND THAT ALL SUCH
STREAMS SHOULD BE DEEMED TO BE, AND REMAIN PUBLIC HIGHWAYS."  PACKER V.
BIRD, 137 U.S. 661, 672 (1891), IS TO LIKE EFFECT.  SHIVELY V. BOWLBY,
152 U.S. 1, 49-50 (1894), RE-EMPHASIZED THAT: 

     "THE CONGRESS OF THE UNITED STATES, IN DISPOSING OF THE PUBLIC

  LANDS, HAS CONSTANTLY ACTED UPON THE THEORY THAT THOSE LANDS,

  WHETHER IN THE INTERIOR, OR ON THE COAST, ABOVE HIGH WATER MARK,

  MAY BE TAKEN UP BY ACTUAL OCCUPANTS, IN ORDER TO ENCOURAGE THE

  SETTLEMENT OF THE COUNTRY; BUT THAT THE NAVIGABLE WATERS AND THE

  SOILS UNDER THEM, WHETHER WITHIN OR ABOVE THE EBB AND FLOW OF THE

  TIDE, SHALL BE AND REMAIN PUBLIC HIGHWAYS; AND, BEING CHIEFLY

  VALUABLE FOR THE PUBLIC PURPOSES OF COMMERCE, NAVIGATION AND

  FISHERY, AND FOR THE IMPROVEMENTS NECESSARY TO SECURE AND PROMOTE

  THOSE PURPOSES, SHALL NOT BE GRANTED AWAY DURING THE PERIOD OF

  TERRITORIAL GOVERNMENT; BUT, UNLESS IN CASE OF SOME INTERNATIONAL

  DUTY OR PUBLIC EXIGENCY, SHALL BE HELD BY THE UNITED STATES IN

  TRUST FOR THE FUTURE STATES, AND SHALL VEST INTO THE UNION, WITH

  ALL THE POWERS AND PREROGATIVES APPERTAINING TO THE OLDER STATES

  IN REGARD TO SUCH WATERS AND SOILS WITHIN THEIR RESPECTIVE

  JURISDICTIONS; IN SHORT, SHALL NOT BE DISPOSED OF PIECEMEAL TO

  INDIVIDUALS AS PRIVATE PROPERTY OF BEING ULTIMATELY ADMINISTERED

  AND DEALT WITH FOR THE PUBLIC BENEFIT BY THE STATE, AFTER IT

  SHALL HAVE BECOME A COMPLETELY ORGANIZED COMMUNITY." 

THE ISSUE IN SHIVELY WAS WHETHER THE GRANTEE OF LANDS ALONG A NAVIGABLE
RIVER IN OREGON TERRITORY HAD AN INTEREST IN THE RIVER BED BY REASON OF
HIS FEDERAL GRANT.  IT WAS HELD THAT HE DID NOT. 

IN 1845, POLLARD V. HAGAN, 3 HOW.  212, HELD THAT THE UNITED STATES
HAD NO POWER, EXCEPT WHERE STATE LAW PERMITTED, TO CONVEY AN INTEREST
IN THE BED OF A NAVIGABLE RIVER AFTER THE STATE IN WHICH IT WAS LOCATED
HAD BEEN ADMITTED TO THE UNION.  THE COURT ALSO IMPLIED THAT BECAUSE
THE BEDS OF NAVIGABLE STREAMS WERE HELD IN TRUST FOR FUTURE STATES, THE
UNITED STATES WAS WITHOUT POWER TO DISPOSE OF THE BEDS PRIOR TO
STATEHOOD.  THIS IMPLICATION WAS REPUDIATED BY STATEMENTS IN SUCH LATER
CASES AS GOODTITLE V. KIBBE, 9 HOW.  471, 479 (1850), AND SHIVELY V.
BOWLBY, SUPRA, AT 47-48.  IN THE WORDS OF THE LATTER: 

     "WE CANNOT DOUBT, THEREFORE, THAT CONGRESS HAS THE POWER TO

  MAKE GRANTS OF LANDS BELOW HIGH WATER MARK OF NAVIGABLE WATERS IN

  ANY TERRITORY OF THE UNITED STATES, WHENEVER IT BECOMES NECESSARY

  TO DO SO IN ORDER TO PERFORM INTERNATIONAL OBLIGATIONS, OR TO

  EFFECT THE IMPROVEMENT OF SUCH LANDS FOR THE PROMOTION AND

CONVENIENCE OF COMMERCE WITH FOREIGN NATIONS AND AMONG THE

  SEVERAL STATES, OR TO CARRY OUT OTHER PUBLIC PURPOSES APPROPRIATE

  TO THE OBJECTS FOR WHICH THE UNITED STATES HOLD THE TERRITORY." 

  152 U.S.,AT 48. 

NEVERTHELESS, WHETHER THE UNITED STATES HAD ONLY A RESTRICTED POWER TO
CONVEY INTERESTS IN NAVIGABLE RIVER BEDS PRIOR TO STATEHOOD WAS DEEMED
AN OPEN QUESTION IN BREWER-ELLIOTT OIL & GAS CO. V. UNITED STATES, 260
U.S. 77, 85-86 (1922); DECISION ON THAT QUESTION WAS RESERVED AS WAS
DECISION ON THE ISSUE WHETHER, IF THE POWER TO CONVEY WAS LIMITED TO
CERTAIN PURPOSES, PROVISION OF A HOME FOR AN INDIAN TRIBE CAME WITHIN
ONE OF THESE PERMITTED PURPOSES.  THREE YEARS LATER, UNITED STATES V.
HOLT STATE BANK, 270 U.S. 49, 55 (1926), AGAIN RECOGNIZED THAT "THE
UNITED STATES EARLY ADOPTED AND CONSTANTLY HAS ADHERED TO THE POLICY OF
REGARDING LANDS UNDER NAVIGABLE WATERS IN ACQUIRED TERRITORY, WHILE
UNDER ITS SOLE DOMINION, AS HELD FOR THE ULTIMATE BENEFIT OF FUTURE
STATES, AND SO HAS REFRAINED FROM MAKING ANY DISPOSAL THEREOF, SAVE IN
EXCEPTIONAL INSTANCES WHEN IMPELLED TO PARTICULAR DISPOSALS BY SOME
INTERNATIONAL DUTY OR PUBLIC EXIGENCY." 

THE OWNERSHIP OF LANDS UNDER NAVIGABLE WATERS WAS DEEMED AN INCIDENT
OF SOVEREIGNTY, MARTIN V. WADDELL, 16 PET. 367, 409-411 (1842), AND
WHATEVER THE POWER OF THE FEDERAL GOVERNMENT TO CONVEY SUCH LANDS LYING
IN ITS UNORGANIZED TERRITORIES, CONGRESS NEVER UNDERTOOK TO DO SO BY
GENERAL LAWS.  SHIVELY V. BOWLBY, SUPRA, AT 48-50.  CONVEYANCE OF A
RIVER BED WOULD NOT BE IMPLIED AND WOULD NOT BE FOUND UNLESS THE GRANT
"IN TERMS EMBRACES THE LAND UNDER THE WATERS OF THE STREAM," PACKER V.
BIRD, SUPRA, AT 672; SHIVELY V. BOWLBY, SUPRA, AT 47-48.  SUCH
DISPOSALS BY THE UNITED STATES "DURING THE TERRITORIAL PERIOD ARE NOT
LIGHTLY TO BE INFERRED, AND SHOULD NOT BE REGARDED AS INTENDED UNLESS
THE INTENTION WAS DEFINITELY DECLARED OR OTHERWISE MADE VERY PLAIN." 
UNITED STATES V. HOLT STATE BANK, SUPRA, AT 55. 

        II 

AGAINST THIS DOCTRINAL BACKGROUND, FOR EITHER THE CHEROKEES, THE
CHOCTAWS, OR THE CHICKASAWS TO PREVAIL, THERE MUST BE FOUND IN THEIR
GRANT A "VERY PLAIN" BASIS FOR CONCLUDING THAT THE UNITED STATES
INTENDED TO CONVEY AN INTEREST IN THE RIVER BED.  AS I SEE IT, NEITHER
THE PATENTS NOR THE TREATIES HERE INVOLVED SATISFY THAT STANDARD. 

THE PATENT TO THE CHOCTAWS IN 1842, WHICH MERELY QUOTES FROM THE
1830 TREATY OF DANCING RABBIT CREEK, 7 STAT. 333, DESCRIBES THE
NORTHERN BOUNDARY OF THE CHOCTAW GRANT AS "(BEGINNING NEAR FORT SMITH
WHERE THE ARKANSAS BOUNDARY CROSSES THE ARKANSAS RIVER, RUNNING THENCE
TO THE SOURCE OF THE CANADIAN FORK.  . . . "  AN EARLIER TREATY, THE
1820 TREATY OF DOAK'S STAND, 7 STAT. 210, DESCRIBED THE NORTHERN
BOUNDARY OF THE CHOCTAW LANDS AS GOING "UP THE ARKANSAS TO THE CANADIAN
FORK.  . . . "  THE QUOTED PHRASES OF THE PATENT (AND THE TREATY OF
DANCING RABBIT CREEK) AND OF THE TREATY OF DOAK'S STAND ARE THE SOLE
BASES FOR THE CHOCTAW CLAIM TO THE ENTIRE BED OF THE ARKANSAS RIVER
FROM THE WESTERN BOUNDARY OF ARKANSAS UPSTREAM TO THE JUNCTION WITH THE
CANADIAN RIVER.  THE CHEROKEES CLAIM THAT THE CONVEYANCE GAVE THE
CHOCTAWS ONLY THE SOUTHERN HALF OF THE RIVER BED; THE STATE OF OKLAHOMA
CLAIMS THAT THE NORTHERN BOUNDARY OF THE CHOCTAW LANDS WENT UP THE
RIVER ON ITS SOUTH BANK AND HENCE GAVE THE CHOCTAWS NONE OF THE RIVER
BED SINCE THE RIVER WAS NAVIGABLE AND THERE WAS NO EXPRESS CONVEYANCE
OF THE RIVER BED TO THE CHOCTAWS. 

AS FOR THE CHEROKEES, THEIR SOUTHERN BOUNDARY FROM THE CANADIAN
RIVER TO THE ARKANSAS BORDER IS DESCRIBED IN THE 1838 PATENT AS
PROCEEDING FROM THE NORTH BANK OF THE CANADIAN RIVER AT ITS JUNCTION
WITH THE ARKANSAS RIVER, "THENCE DOWN THE MAIN CHANNEL OF ARKANSAS
RIVER TO THE WESTERN BOUNDARY OF THE STATE OF ARKANSAS, AT THE NORTHERN
EXTREMITY OF THE EASTERN BOUNDARY OF THE LANDS OF THE CHOCTAWS, ON THE
SOUTH BANK OF THE ARKANSAS RIVER.  . . . "  THE PATENT WAS IN EXECUTION
OF THREE PRIOR TREATIES.  THE 1835 TREATY OF NEW ECHOTA, 7 STAT. 478,
IN DESCRIBING THE LAND TO BE CONVEYED, REPEATED THE DESCRIPTION OF THE
TREATY OF FEBRUARY 14, 1833, 7 STAT. 414, WHICH WAS SUPPLEMENTAL TO THE
-REATY OF MAY 6, 1828, 7.  STAT.  311.  THE DESCRIPTION IN THE TREATY
OF NEW ECHOTA DID NOT CONTAIN THE "MAIN CHANNEL" LANGUAGE LATER USED IN
THE PATENT; FROM THE CANADIAN, THE SOUTHERN BOUNDARY RAN "DOWN THE
ARKANSAS TO THAT POINT ON THE ARKANSAS WHERE THE EASTERN CHOCTAW
BOUDARY STRIKES SAID RIVER.  . . . "  THE CHEROKEES CLAIM THIS LANGUAGE
GIVES THEM THE NORTHERN HALF OF THE RIVER BED.  THE CHOCTAWS AND THE
STATE CLAIM THAT THE CHEROKEES HAVE NO INTEREST IN THIS PART OF THE
RIVER BED. 

INSOFAR AS THE RIVER BED FROM THE CANADIAN RIVER TO THE ARKANSAS
BORDER IS CONCERNED, THE TERMS OF THE PATENTS AND THE TREATIES ARE
OBVIOUSLY A FAR CRY FROM WHAT THE CASES REQUIRE TO EVIDENCE THE
INTENTION OF THE UNITED STATES TO DISPOSE OF LANDS UNDER A NAVIGABLE
RIVER.  BUT IT IS SAID THAT THESE CASES ARE IRRELEVANT WHERE THE
GRANTEE IS AN INDIAN TRIBE AND THAT COUNTERVAILING CONSIDERATIONS
REQUIRE TREATIES WITH INDIAN TRIBES TO BE INTERPRETED AS THE TREATIES
WOULD HAVE BEEN UNDERSTOOD BY THE INDIANS.  RELIANCE IS ALSO PLACED ON
THE PROVISION IN THE 1830 CHOCTAW TREATY STATING THAT "WHEREVER WELL
FOUNDED DOUBT SHALL ARISE," THE TREATY SHALL BE CONSTRUED IN FAVOR OF
THE CHOCTAWS.  BUT I FIND IT DIFFICULT TO CONCLUDE FROM SUCH MURKY
LANGUAGE THAT THE UNITED STATES INTENDED TO REJECT ITS HISTORIC POLICY
WITH RESPECT TO BEDS OF NAVIGABLE RIVERS IN EXECUTING THESE TREATIES
AND PATENTS.  NOR IS THERE ANY EVIDENCE WHATSOEVER THAT THE INDIANS OF
THAT DAY WOULD HAVE CONSIDERED THE LAND UNDER A NAVIGABLE RIVER TO BE
OF ANY UTILITY TO THEM OR AS BEING INCLUDED IN A GRANT OF LANDS
ADJACENT TO THE RIVER.  INDEED, THE TREATY OF DANCING RABBIT CREEK
EXPRESSLY NEGATIVES ANY INFERENCE THAT THE UNITED STATES WAS SHARING
WITH THE CHOCTAWS ANY OF ITS SOVEREIGNTY OVER THE NAVIGABLE PORTION OF
THE ARKANSAS RIVER.  IT PROVIDED THAT "(NAVIGABLE STREAMS SHALL BE FREE
TO THE CHOCTAWS WHO SHALL PAY NO HIGHER TOLL OR DUTY THAN CITIZENS OF
THE U.S."     THE CHEROKEE PATENT RECITED THAT THE TREATY LANDS HAD
BEEN SURVEYED AND THE DESCRIPTION IN THE PATENT WAS TAKEN FROM THE
SURVEY.  FIELD NOTES OF AN 1831 SURVEY OF THE EASTERN CHEROKEE BOUNDARY
SHOW UNMISTAKABLY THAT THE SURVEYOR "FIXED, THE SOUTH EAST CORNER OF
THE CHEROKEE LANDS" ON THE NORTH BANK OF THE ARKANSAS RIVER AND THAT
FROM THIS POINT IT WAS "64.50 CH, TO THE SOUTH BANK, WHERE THE NORTHERN
EXTREMITY OF THE EASTERN BOUNDARY OF THE CHOCTAW LANDS, STRIKES THE
ARKANSAS RIVER." 

THE CHOCTAWS GRANT HAD ALSO BEEN SURVEYED PURSUANT TO TREATIES
EXECUTED PRIOR TO THE PATENT.  THE FIELD NOTES OF AN OFFICIAL SURVEY
MADE IN 1821 SHOW THAT THE NORTHERN POINT OF THE EASTERN BOUNDARY OF
CHOCTAW TERRITORY WAS ON "THE SOUTH BANK OF THE ARKANSAS RIVER . . .
DISTANCE FROM THE CHEROKEE CORNER ON THE NORTH BANK OF THE RIVER, ONE
MILE AND THIRTY CHAINS, ARKANSAS RIVER 630 YARDS WIDE," AND THE THE
SURVEYOR ON "OCTOBER 4TH STARTED FROM A POST ON THE SOUTH SIDE OF THE
ARKANSAS, OPPOSITE THE LOWER BOUNDARY OF THE CHEROKEES TO MEANDER THE
ARKANSAS."  A PLAT OF ANOTHER SURVEY OF CHOCTAW LANDS MADE IN 1825
SHOWS THE NORTHERN TERMINUS OF THE EASTERN CHOCTAW BOUNDARY AS BEING ON
THE SOUTH SIDE OF THE RIVER. 

THERE IS LITTLE, IF ANYTHING, IN THESE EARLY SURVEYS TO SUPPORT
OWNERSHIP OF THE RIVER BED IN THE INDIANS.  ON THE CONTRARY, THE
INDICATIONS CLEARLY ARE THAT DOWNSTREAM FROM THE CANADIAN RIVER THE
SOUTHEN BORDER OF THE CHEROKEES' LAND WAS ON THE NORTH SIDE OF THE
ARKANSAS RIVER AND THE NORTHERN BOUNDARY OF THE CHOCTAWS' LAND WAS ON
THE SOUTH SIDE. 

I FIND UNIMPRESSIVE THE COURT'S RELIANCE ON BREWER-ELLIOTT OIL & GAS
CO. V. UNITED STATES, SUPRA, FOR THE PROPOSITION THAT BECAUSE THE
SOUTHERN BOUNDARY OF THE CHEROKEE LANDS RAN "DOWN THE MAIN CHANNEL OF
ARKANSAS RIVER" THE NORTHERN HALF OF THE RIVER BED BELONGED TO THE
INDIANS.  IN BREWER-ELLIOTT THE CHEROKEES HAD CEDED CERTAIN LAND TO THE
UNITED STATES AND FROM THAT LAND THE UNITED STATES CREATED A HOME FOR
THE OSAGE INDIANS, "(BOUNDED . . . ON THE SOUTH AND WEST BY . . . THE
MAIN CHANNEL OF THE ARKANSAS RIVER.  . . . "  17 STAT. 229.  AS STATED
BY THE COURT OF APPEALS, THE CENTRAL ISSUE WAS WHETHER THE OSAGE
INDIANS OWNED "THE BED OF THE ARKANSAS RIVER NORTH OF THE THREAD OF THE
MAIN CHANNEL THEREOF, WHICH WAS THE SOUTH BOUNDARY OF THE LANDS OF THE
OSAGE TRIBE OF INDIANS."  270 F. 100, 101 (C.A. 8TH CIR. 1920).  THE
COURT OF APPEALS RULED THAT THE RIVER AT THAT POINT WAS NOT NAVIGABLE
AND THAT "RIPARIAN GRANTEES AND OWNERS UNDER THE ACTS OF CONGRESS AND
UNDER THE LAW APPLICABLE IN 1838, 1872, AND 1883 AT THE PLACE WHERE
THESE LEASED PREMISES LIE BECAME THE OWNERS OF THE BEDS OF UNNAVIGABLE
STREAMS TO THE RESPECTIVE THREADS THEREOF.  REV. STAT. SEC. 2476 (43
U.S.C. 931); RAILROAD CO. V. SCHURMEIER (SIC), 7 WALL.  272, 287.  . .
. "  270 F.,AT 109.  THIS COURT AFFIRMED, POINTING OUT, AS WAS
OBVIOUSLY TRUE, THAT THE GRANT EXTENDED "AS FAR AS THE MAIN CHANNEL.  .
. . "  260 U.S.,AT 87.  NOTHING THE COURT SAID, HOWEVER, IS ANY BASIS
FOR CONSTRUING A GRANT TO OR AS FAR AS THE MAIN CHANNEL OF A NAVIGABLE
RIVER AS AN EXPRESS GRANT OF ANY LANDS UNDER THAT CHANNEL. 

MUCH IS MADE OF THE DECLARATIONS IN THE TREATIES WITH THE CHEROKEE
AND CHOCTAW NATIONS THAT THE INDIAN LANDS WOULD NOT BE INCLUDED WITHIN
ANY STATE OR TERRITORY.  IT IS ARGUED THAT IN VIEW OF THESE
DECLARATIONS THE UNITED STATES HAD NO REASON TO RESERVE THE RIVER BED. 
BUT THIS IS A NARROW VIEW OF THE HISTORIC POLICY OF THE UNITED STATES. 
NAVIGABLE RIVERS IN THE PUBLIC DOMAIN WERE A PUBLIC RESOURCE AND LANDS
UNDERLYING THEM WERE NOT TO BE CONVEYED TO PRIVATE HANDS BY THE UNITED
STATES.  WHETHER OR NOT IT WAS ANTICIPATED THAT THE PUBLIC DOMAIN WOULD
BE INCLUDED IN A FUTURE STATE, CONGRESSIONAL POLICY, DECLARED EARLY IN
OUR HISTORY, WAS THAT CONVEYANCES OF PUBLIC LANDS BORDERING ON
NAVIGABLE RIVERS CARRIED NO TITLE TO THE ADJOINING RIVER BED. 

I CANNOT, THEREFORE, CONCLUDE THAT EITHER THE CHEROKEES OR THE
CHOCTAWS TOOK ANY INTEREST IN THE BED OF THE ARKANSAS RIVER, AT LEAST
FROM THE JUNCTION OF THE ARKANSAS RIVER AND THE CANADIAN RIVER
DOWNSTREAM TO THE ARKANSAS BORDER. 

    III 

THE RIVER BED ABOVE THE CANADIAN RIVER IS SAID TO BE OWNED BY THE
CHEROKEES BECAUSE THE TRIBE WAS GRANTED LANDS ON BOTH SIDES OF THE
RIVER PURSUANT TO A SINGLE METES AND BOUNDS DESCRIPTION THE CALLS OF
WHICH CROSSED THE RIVER WITHOUT EXCLUDING THE RIVER BED.  IT IS QUITE
TRUE THAT IF ONE PLOTS OUT THE CONVEYANCE DESCRIBED BY THE PATENT THE
ARKANSAS RIVER IS INCLUDED WITHIN THE PERIMETERS OF THE GRANTED
PROPERTY.  BUT THERE IS NO EXPRESS REFERENCE TO THE RIVER BED, THE
RIVER WAS A NAVIGABLE STREAM, AND THE POLICY OF THE UNITED STATES WAS
NOT TO CONVEY LANDS UNDERLYING SUCH WATERS.  NO SUCH CONVEYANCE SHOULD
BE RECOGNIZED UNLESS THE INTENTION TO MAKE SUCH A CONVEYANCE WAS
UNMISTAKABLY STATED.  NO ONE SUGGESTS THAT THE CHEROKEES WERE GRANTED
FULL SOVEREIGNTY OVER THE ARKANSAS RIVER, THAT THE UNITED STATES HAD
CONVEYED AWAY ITS POWER TO CONTROL NAVIGATION AND COMMERCE ON THE
ARKANSAS, OR THAT THE PUBLIC HAD LOST ITS RIGHT TO TRAVEL THE NAVIGABLE
PORTION OF THE ARKANSAS BY VIRTUE OF THE CONVEYANCE TO THE CHEROKEE
NATION.  THERE BEING NO INDICATIONS THAT THE INDIANS THOUGHT ONE WAY OR
THE OTHER ABOUT THE UNDERWATER LANDS OR THAT THEY HAD ANY USE FOR THEM
IN THOSE DAYS, THE EVIDENCE IS INSUFFICIENT TO PROVE AN INTENT ON THE
PART OF THE GOVERNMENT TO CONVEY THE RIVER BED.  CF. UNITED STATES V.
HOLT STATE BANK, SUPRA. 

EVEN IF IT WERE OTHERWISE, HOWEVER, THE CONVEYANCE TO THE CHEROKEES
WAS TO THE CHEROKEES AS A NATION; IT CREATED NO RIGHTS, LEGAL OR
EQUITABLE, IN INDIVIDUALS.  CF. FLEMING V. MCCURTAIN, 215 U.S. 56
(1909).  IF THE RIVER BED PASSED TO THE TRIBE, IT WAS TO BE HELD BY THE
NATION AS PROPERTY COMMON TO ALL.  MOREOVER, THE CHEROKEE PATENT
EXPRESSLY PROVIDED "THAT THE LANDS HEREBY GTANTED SHALL REVERT TO THE
UNITED STATES, IF THE SAID CHEROKEE NATION BECOMES EXTINCT, OR ABANDONS
THE SAME."  THE CHOCTAW PATENT AND TREATIES CONTAINED A SIMILAR
CONDITION.  SUCH PROVISION LIMITED THE DURATION OF TITLE AND QUALIFIED
"THE ABSOLUTENESS OF THE EARLIER WORDS, 'IN FEE SIMPLE.'"  FLEMING V.
MCCURTAIN, SUPRA, AT 61.  THE SIGNIFICANCE OF THE LIMITATION IS THAT
PURSUANT TO AGREEMENTS REACHED WITH THE CHEROKEE, CHOCTAW, AND
CHICKASAW NATIONS, CONGRESS EARLY IN THIS CENTURY PROVIDED FOR THE
ALLOTMENT OF TRIBAL LANDS TO INDIVIDUAL MEMBERS OF THE TRIBE,
TERMINATED THE GENERAL POWERS OF THE TRIBAL GOVERNMENTS AND CONTINUED
TRIBAL EXISTENCE FOR LIMITED PURPOSES ONLY UNDER THE SUPERVISION OF THE
INTERIOR DEPARTMENT.  SEE ACT OF JUNE 28, 1898, 30 STAT. 495; ACT OF
JULY 1, 1902, 32 STAT. 716; ACT OF APRIL 26, 1906, 34 STAT. 137. 
TRIBAL LANDS FOR THE MOST PART WERE CONVEYED TO INDIVIDUAL INDIANS OR
SOLD.  TRANSFERS OF LANDS TO INDIVIDUALS ALONG THE NAVIGABLE PORTION OF
THE ARKANSAS RIVER NEITHER EXPRESSLY NOT BY IMPLICATION CARRIED WITH
THEM THE RIVER BED.  THE FORMER INDIAN TERRITORY IS NOT NOW EITHER
OCCUPIED OR OWNED SOLELY BY INDIANS BUT IS WIDELY HELD BY DIVERSE
PEOPLES AND INTERESTS IN THE STATE OF OKLAHOMA.  SHOULD IT NOW BE HELD
THAT THE TITLE OF THE RIVER BED, SEVERED FROM AND NO LONGER SERVING
COMMUNAL PROPERTY, REMAINS IN THE TRIBE, TO BE ADMINISTERED OR SOLD BY
IT FOR PURELY PRIVATE PURPOSES?  I THINK NOT.  FOR THE PURPOSES
ANTICIPATED BY THE TREATIES AND PATENTS, THE CHEROKEE, CHOCTAW, AND
CHICKASAW NATIONS CEASED TO EXIST AS GENERAL GOVERNMENTAL ENTITIES IN
1906.  OKLAHOMA BECAME A STATE IN 1907 AND TOOK TITLE TO THE RIVER BED,
WHICH HAD MEANWHILE REVERTED TO THE UNITED STATES IF TITLE TO THE RIVER
BED HAD EVER BEEN IN THE INDIAN NATIONS. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

LON KILE ARGUED THE CAUSE FOR PETITIONERS IN NO. 41 ON THE ORIGINAL
ARGUMENT AND ON THE REARGUMENT.  WITH HIM ON THE BRIEFS WAS J. D.
MCLAUGHLIN.  PEYTON FORD ARGUED THE CAUSE FOR PETITIONER IN NO. 59 ON
THE ORIGINAL ARGUMENT AND ON THE REARGUMENT.  WITH HIM ON THE BRIEFS
WERE MICHAEL S. YAROSCHUK, ANDREW C. WILCOXEN, EARL BOYD PIERCE, AND
PAUL M. NIEBELL. 

M. DARWIN KIRK AND G. T. BLANKENSHIP, ATTORNEY GENERAL OF OKLAHOMA,
ARGUED THE CAUSE FOR RESPONDENTS IN BOTH CASES ON THE REARGUMENT.  MR.
KIRK ARGUED THE CAUSE FOR RESPONDENTS IN BOTH CASES ON THE ORIGINAL
ARGUMENT.  WITH THEM ON THE BRIEF WERE DAVID O. CORDELL, RILEY B. FELL,
JULIEN B. FITE, N. A. GIBSON, S. M. GROOM, JR., OSCAR L. HASTY, WILLIAM
P. MCCLURE, HEARTSILL RAGON, ROBERT W. RICHARDS, VARLEY H. TAYLOR, S.
W. WELLS, AND JUDSON S. WOODRUFF. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL IN BOTH CASES ON THE ORIGINAL ARGUMENT AND ON
THE REARGUMENT.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL KASHIWA, ROGER P. MARQUIS, AND FRANK B.
FRIEDMAN. 

CHARLES A. HOBBS FILED A BRIEF FOR WILKINSON, CRAGUN & BARKER AS
AMICUS CURIAE URGING REVERSAL IN BOTH CASES. 
..END :



SEARS, ROEBUCK V. CARPET LAYERS, 397 U.S. 655 


       SEARS, ROEBUCK & CO. V. CARPET, LINOLEUM, SOFT TILE &

           RESILIENT FLOOR COVERING LAYERS, LOCAL UNION NO. 419,

           AFL-CIO, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

        NO. 476.  ARGUED MARCH 3, 1970-- DECIDED APRIL 27, 1970 


THE NATIONAL LABOR RELATIONS BOARD (NLRB) REGIONAL DIRECTOR, AFTER
INVESTIGATING PETITIONER'S CHARGE THAT RESPONDENT UNION WAS VIOLATING
SEC. 8(B)(4)(B) OF THE NATIONAL LABOR RELATIONS ACT, ISSUED AN UNFAIR
LABOR PRACTICE COMPLAINT WITH THE NLRB AND PETITIONED THE DISTRICT
COURT FOR INJUNCTIVE RELIEF UNDER SEC. 10(L) OF THE ACT, WHICH DIRECTS
HIM TO APPLY FOR SUCH TEMPORARY RELIEF "PENDING THE FINAL ADJUDICATION
OF THE BOARD WITH RESPECT TO SUCH MATTER."  THE REGIONAL DIRECTOR DID
NOT APPEAL THE DENIAL OF AN INJUNCTION BUT PETITIONER (WHICH HAD NOT
FORMALLY INTERVENED AT THE DISTRICT COURT HEARING) SOUGHT TO DO SO.
THE COURT OF APPEALS DISMISSED THE APPEAL ON THE GROUND THAT ONLY THE
REGIONAL DIRCTOR COULD APPEAL.  THE NLRB THEREAFTER FOUND THAT THE
UNION HAD VIOLATED SEC. 8(B)(4)(B) AND ORDERED IT TO CEASE AND DESIST
FROM ITS UNLAWFUL CONDUCT.  HELD:  SINCE ANY INJUNCTIVE RELIEF TO WHICH
PETITIONER MIGHT HAVE BEEN ENTITLED UNDER SEC. 10(L) TERMINATED UPON
FINAL ACTION BY THE NLRB, ALBEIT RESPONDENT UNION IS SEEKING JUDICIAL
REVIEW OF THE ORDER, THE QUESTION WHETHER PETITIONER COULD APPEAL THE
DENIAL OF AN INJUNCTION IS MOOT. 

410 F.2D 1148, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITIONER, SEARS, ROEBUCK AND COMPANY (SEARS), FILED A CHARGE
WITH WITH THE NLRB REGIONAL DIRCTOR, ALLEGING THAT THE RESPONDENT UNION
WAS ENGAGED IN UNLAWFUL SECONDARY PICKETING OF THE PETITIONER'S
PREMISES IN VIOLATION OF SEC. 8(B)(4)(B) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED.  /1/  THE REGIONAL DIRECTOR INVESTIGATED THE
CHARGE AND, FINDING THERE WAS REASONABLE CAUSE TO BELIEVE IT WAS TRUE,
ISSED AN UNFAIR LABOR PRACTICE COMPLAINT WITH THE BOARD.  HE ALSO
PETITIONED A FEDERAL DISTRICT COURT FOR INJUNCTIVE RELIEF PURSUANT TO
SEC. 10(L) OF THE ACT, WHICH DIRECTS HIM TO APPLY FOR SUCH TEMPORARY
RELIEF "PENDING THE FINAL ADJUDICATION OF THE BOARD WITH RESPECT TO
SUCH MATTER."  /2/ 

COUNSEL FOR SEARS APPEARED AT THE HEARING BEFORE THE DISTRICT COURT,
BUT SEARS DID NOT SEEK TO INTERVENE FORMALLY.  AFTER HEARING TESTIMONY
THE COURT DECLINED TO ISSUE AN INJUNCTION, BELIEVING THAT SEARS WAS NOT
LIKELY TO PREVAIL BEFORE THE BOARD ON ITS UNFAIR LABOR PRACTICE
CHARGE.  /3/  THE REGIONAL DIRCTOR DID NOT APPEAL THE COURT'S DECISION,
BUT SEARS SOUGHT TO DO SO.  410 F.2D 1148.  THE COURT OF APPEALS
DISMISSED SEARS' APPEAL ON THE GROUND THAT UNDER THE ACT ONLY THE
REGIONAL DIRECTOR COULD APPEAL FROM THE DENIAL OF A SEC. 10(L)
INJUNCTION.  THEREAFTER THE BOARD ISSUED ITS DECISION AND ORDER IN THE
UNDERLYING UNFAIR LABOR PRACTICE PROCEEDING, FINDING THAT THE
RESPONDENT UNION HAD VIOLATED SEC. 8(B)(4)(B) OF THE ACT, AND ORDERING
IT TO DEASE AND DESIST FROM ITS UNLAWFUL CONDUCT.  176 N.L.R.B.NO. 120,
71 L.R.R.M. 1372 (1969). 

UNDER THESE CIRCUMSTANCES THE QUESTION WHETHER SEARS COULD APPEAL
THE DISTRICT COURT'S DENIAL OF AN INJUNCTION HAS NOW BECOME MOOT.  FOR
EVEN IF THE COURT OF APPEALS WAS WRONG IN DISMISSING SEARS' APPEAL, ANY
RELIEF THAT THAT COURT MIGHT HAVE GIVEN WOULD NOW HAVE TERMINATED. 
"'TO ADJUDICATE A CAUSE WHICH NO LONGER EXISTS IS A PROCEEDING WHICH
THIS COURT UNIFORMLY HAS DECLINED TO ENTERTAIN.'"  OIL WORKERS UNION V.
MISSOURI, 361 U.S. 363, 371, QUOTING FROM BROWNLOW V. SCHWARTZ, 261
U.S. 216, 217-218.  SEE ALSO HALL V. BEALS, 396 U.S. 45; BROCKINGTON V.
RHODES, 396 U.S. 41; GOLDEN V. ZWICKLER, 394 U.S. 103. 

SEARS CONCEDS THAT AN INJUNCTION, HAD ONE ISSUED, WOULD TERMINATE
UPON "FINAL" BOARD RESOLUTION OF THE UNDERLYING UNFAIR LABOR PRACTICE
CHARGE.  BUT IT ARGUES THAT THE BOARD'S ACTION CANNOT BE CONSIDERED
FINAL WHERE, AS HERE, ONE OF THE PARTIES, IN THIS CASE THE RESPONDENT
UNION, HAS SOUGHT REVIEW OF THE BOARD'S ORDER.  IN THIS SITUATION,
SEARS MAINTAINS, THE INJUNCTIVE RELIEF, IF GRANTED, WOULD REMAIN IN
EFFECT UNTIL THE BOARD'S ORDER WITH RESPECT TO THE UNDERLYING UNFAIR
LABOR PRACTICE WERE EITHER ENFORCED OR DENIED ENFORCEMENT BY THE COURT
OF APPEALS.  IT IS ARGUED THAT BECAUSE THE COURT OF APPEALS HAS NOT YET
ACTED ON THE BOARD'S ORDER HERE, SEARS MAY STILL BE ENTITLED TO
INJUNCTIVE RELIEF, AND THUS THE QUESTION OF WHETHER IT WAS ENTITLED TO
APPEAL THE DENIAL OF A SEC. 10(L) INJUNCTION REMAINS A VIABLE ONE. 

BUT NEITHER THE LANGUAGE, THE LEGISLATIVE HISTORY, NOR THE POLICIES
OF THE ACT SUPPORT THIS CONSTRUCTION.  FOR BY ITS TERMS OF SEC. 10(L)
MERELY AUTHORIZES THE ISSUANCE OF AN INJUNCTION "PENDING THE FINAL
ADJUDICATION OF THE BOARD WITH RESPECT TO (THE) MATTER."  ONCE THE
BOARD HAS ACTED, IT CAN ITSELF SEEK INJUNCTIVE RELIEF FROM THE COURT OF
APPEALS, PURUSANT TO SEC. 10(E) OF THE ACT, WHICH EMPOWERS THAT COURT
TO GRANT "SUCH TEMPORARY RELIEF OR RESTRAINING ORDER AS IT DEEMS JUST
AND PROPER."  /4/  SEE MCLEOD V. BUSINESS MACHINE MECHANICS CONFERENCE
BOARD, 300 F.2D 237, 241.  THE LEGISLATIVE HISTORY MAKES CLEAR THAT THE
PURPOSE OF ENACTING SEC. 10(L) IN 1947 WAS SIMPLY TO SUPPLEMENT THE PRE
EXISTING SEC. 10(E) POWER OF THE BOARD BY AUTHORIZING INJUNCTIVE RELIEF
PRIOR TO BOARD ACTION.  /5/  IT WAS THUS RELIEF PRIOR TO BOARD ACTION
THAT CONGRESS WAS CONCERNED WITH PROVIDING WHEN IT ENACTED SEC. 10(L),
AND ANY INJUNCTION ISSUED PURSUANT TO THAT SECTION TERMINATES WHEN THE
BOARD RESOLVES THE UNDERLYING DISPUTE. 

WHERE THE BOARD ULTIMATELY FINDS NO UNFAIR LABOR PRACTICE, IT WOULD
CLEARLY BE CONTRARY TO THE POLICIES OF THE ACT TO PERMIT A DISTRICT
COURT INJUNCTION TO REMAIN IN EFFECT PENDING COURT OF APPEALS REVIEW OF
THE DISTRICT COURT'S ACTION.  AND WHERE THE BOARD DOES FIND AN UNFAIR
LABOR PRACTICE, SEC. 10(E) PROVIDES AN ADEQUATE REMEDY SHOULD ITS ORDER
BE DISOBEYED.  YET ON THE PETITIONER'S READING OF THE ACT, THE DISTRICT
COURT INJUNCTION WOULD REMAIN IN EFFECT UNTIL COURT OF APPEALS REVIEW,
WHATEVER THE BOARD DID.  THIS IS NOT WHAT WAS INTENDED BY SEC. 10(L),
AND THE COURTS THAT HAVE CONFRONTED THE ISSUE HAVE CONSISTENTLY SO
HELD.  CARPENTERS' DISTRICT COUNCIL V. BOIRE, 288 F.2D 454, 455;
MONIQUE, INC. V. BOIRE, 344 F.2D 1017, 1018; NLRB V. NASHVILLE BLDG.
TRADES COUNCIL, 383 F.2D 562, 564.  SEE ALSO THIS COURT'S DISPOSITION
IN LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL IN LEBARON, 342 U.S.
802.  BUT SEE HOUSTON INSULATION CONTRACTORS ASSN V. NLRB, 339 F.2D
868. 

BECAUSE ANY INJUNCTIVE RELIEF TO WHICH SEARS MIGHT HAVE BEEN
ENTITLED UNDER SEC. 10(L) WOULD NOW HAVE TERMINATED IN ANY EVENT, THE
QUESTION OF WHETHER SEARS WAS ENTITLED TO CHALLENGE THE DENIAL OF SUCH
RELIEF HAS BECOME MOOT. 

ACCORDINGLY THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE
COMPLAINT AS MOOT. 

              IT IS SO ORDERED. 

/1/  SEC. 8(B).  "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION OR ITS AGENTS . . .

        .          .          .  . 

"(4)(I) TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE
OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM
ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY PERSON
ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE IN
EITHER CASE AN OBJECT THEREOF IS-- . . . (B) FORCING OR REQUIRING ANY
PERSON TO CEASE USING, SELLING, HANDLING, TRANSPORTING, OR OTHERWISE
DEALING IN THE PRODUCTS OF ANY OTHER PRODUCER, PROCESSOR, OR
MANUFACTURER, OR TO CEASE DOING BUSINESS WITH ANY OTHER PERSON, OR
FORCING OR REQUIRING ANY OTHER EMPLOYER TO RECOGNIZE OR BARGAIN WITH A
LABOR ORGANIZATION AS THE REPRESENTATIVE OF HIS EMPLOYEES UNLESS SUCH
LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE REPRESENTATIVE OF SUCH
EMPLOYEES UNDER THE PROVISIONS OF SECTION 9.  . . . "  (61 STAT. 141,
73 STAT. 542, 29 U.S.C. 158(B).) 

/2/  29 U.S.C. 160(L). 

/3/  THE DISTRICT COURT DECISION IS UNREPORTED. 

/4/  29 U.S.C. 160(E). 

/5/  "UNDER THE PRESENT ACT THE BOARD IS EMPOWERED TO SEEK INTERIM
RELIEF ONLY AFTER IT HAS FILED IN THE APPROPRIATE CIRCUIT COURT OF
APPEALS ITS ORDER AND THE RECORD ON WHICH IT IS BASED.  . . . 

"IN SUBSECTIONS (J) AND (L) . . . THE BOARD IS GIVEN ADDITIONAL
AUTHORITY TO SEEK INJUNCTIVE RELIEF.  . . . THUS THE BOARD NEED NOT
WAIT, IF THE CIRCUMSTANCES CALL FOR SUCH RELIEF, UNTIL IT HAS HELD A
HEARING, ISSUED ITS ORDER, AND PETITIONED FOR ENFORCEMENT OF ITS
ORDER."  S. REP. NO. 105, 80 THE CONG., 1ST SESS., 27 (1947). 

GERARD C. SMETANA ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS ALAN RAYWID. 

DAVID S. BARR ARGUED THE CAUSE FOR RESPONDENT UNION.  WITH HIM ON
THE BRIEF WAS PHILIP HORNBEIN, JR., DOMINICK L. MANOLI ARGUED THE CAUSE
FOR RESPONDENT THE REGIONAL DIRECTOR OF THE NATIONAL LABOR RELATIONS
BOARD.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, JOSEPH
J. CONNOLLY, ARNOLD ORDMAN, AND NORTON J. COME. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY BRICE I. BISHOP
AND PHIL B. HAMMOND FOR THE AMERICAN RETAIL FEDERATION, AND BY JERRY
KRONENBERG AND CHARLES C. KIEFFER FOR THE TERMINAL FREIGHT HANDLING CO.
ET AL. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :





















HESTER V. ILLINOIS, 397 U.S. 660 


       HESTER V. ILLINOIS

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS

        NO. 82.  ARGUED NOVEMBER 18, 1969-- DECIDED APRIL 27, 1970 


39 ILL.2D 489, 237 N.E.2D 466, CERTIORARI DISMISSED. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR. JUSTICE MARSHALL
DISSENT. 

MARSHALL KAPLAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS EDWARD KAPLAN. 

JOEL M. FLAUM, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, AND JAMES R. THOMPSON, JAMES B. ZAGEL, THOMAS J.
IMMEL, AND MORTON E. FRIEDMAN, ASSISTANT ATTORNEYS GENERAL. 
..END :





FIRST NATIONAL BANK OF SANTA FE V. COMMISSIONER OF REVENUE OF NEW
MEXICO, 397 U.S. 661 A 



       FIRST NATIONAL BANK OF SANTA FE V. COMMISSIONER OF REVENUE

           OF NEW MEXICO

        APPEAL FROM THE COURT OF APPEALS OF NEW MEXICO

        NO. 1171.  DECIDED APRIL 27, 1970 


80 N.M. 699, 460 P.2D 64, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

S. HAZARD GILLESPIE AND PORTER R. CHANDLER FOR APPELLANT. 

JAMES A. MALONEY, ATTORNEY GENERAL OF NEW MEXICO, GARY O'DOWD,
DEPUTY ATTORNEY GENERAL, AND JUSTIN REID, ASSISTANT ATTORNEY GENERAL,
FOR APPELLEE. 
..END :




GARDEN STATE TRANSIT CO., INC. V. UNITED STATES, 397 U.S. 661 


       GARDEN STATE TRANSIT CO., INC. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NEW JERSEY

        NO. 1323.  DECIDED APRIL 27, 1970. 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

HERMAN B. J. WECKSTEIN FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
ROBERT W. GINNANE, FRITZ R. KAHN, AND RAYMOND M. ZIMMET FOR THE UNITED
STATES ET AL.
..END :








UNITED STATES V. ROWELL, 397 U.S. 662 


       UNITED STATES V. ROWELL

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE EIGHTH CIRCUIT

        NO. 863.  DECIDED APRIL 27, 1970 


CERTIORARI GRANTED; 415 F.2D 300, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION OF THE RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS
IS GRANTED.  THE PETITION FOR A WRIT OF CERTIORARI IS ALSO GRANTED AND
THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS IS VACATED.  THE
CASE IS REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT OF
BUIE V. UNITED STATES, 396 U.S. 87. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND MERVYN HAMBURG FOR THE UNITED STATES. 
..END :







LAMPTON V. BONIN, 397 U.S. 663 


       LAMPTON ET AL. V. BONIN ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

    DISTRICT OF LOUISIANA

        NO. 1112, MISC.  DECIDED APRIL 27, 1970 


299 F.SUPP.  336, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED AND THE
JUDGMENT OF THE UNITED STATES DISTRICT COURT IS VACATED.  THE CASE IS
REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT OF ROSADO V.
WYMAN, ANTE, P. 397. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK DISSENT FOR THE REASONS SET
FORTH IN MR. JUSTICE BLACK'S DISSENTING OPINION IN ROSADO V. WYMAN,
ANTE, P. 430. 

JEFFREY B. SCHWARTZ AND RICHARD S. BUCKLEY FOR APPELLANTS. 

JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, AND WILLIAM P.
SCHULER AND DORTHY D. WOLBRETTE, ASSISTANT ATTORNEYS GENERAL, FOR
APPELLEES. 
..END :






















AMERICAN FARM LINES V. BLACK BALL, 397 U.S. 532 


       AMERICAN FARM LINES V. BLACK BALL FREIGHT SERVICE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF WASHINGTON

   NO. 369.  ARGUED FEBRUARY 25, 1970-- DECIDED APRIL 20, 1970

           /1/ 


APPELLANT AMERICAN FARM LINES (AFL) FILED AN APPLICATION FOR
TEMPORARY OPERATING AUTHORITY UNDER SEC. 210A OF THE INTERSTATE
COMMERCE ACT, WHICH ALLOWS THE INTERSTATE COMMERCE COMMISSION (ICC) TO
GRANT SUCH AUTHORITY WITHOUT HEARINGS FOR "SERVICE FOR WHICH THERE IS
AN IMMEDIATE AND URGENT NEED" AND WHERE THERE IS "NO CARRIER SERVICE
CAPABLE OF MEETING SUCH NEED."  ICC RULES REQUIRE THAT THE APPLICATION
BE SUPPORTED BY SHIPPERS' STATEMENTS CONTAINING 11 ITEMS OF
INFORMATION, INCLUDING "(8) WHETHER EFFORTS HAVE BEEN MADE TO OBTAIN
THE SERVICES FROM EXISTING . . . CARRIERS, AND THE DATES AND RESULTS OF
SUCH EFFORTS," AND "(9) NAMES AND ADDRESSES OF EXISTING CARRIERS WHO
HAVE EITHER FAILED OR REFUSED TO PROVIDE THE SERVICE, AND THE REASONS
GIVEN FOR ANY SUCH FAILURE OR REFUSAL."  AFL'S APPLICATION, WHICH WAS
ACCOMPANIED BY A STATEMENT FROM THE DEPARTMENT OF DEFENSE (DOD), WAS
APPROVED BY THE ICC.  PROTESTING CARRIERS SOUGHT REVIEW IN THE FEDERAL
DISTRICT COURT, WHERE A SINGLE JUDGE TEMPORARILY RESTRAINED THE
OPERATION OF THE ICC'S ORDER.  THE ICC, NOT BARRED BY THE STAY ORDER
FROM DOING SO, THEN GRANTED PETITIONS FOR RECONSIDERATION AND REOPENED
THE PROCEEDING TO RECEIVE A FURTHER SUPPORTING STATEMENT FROM DOD. 
BASED UPON THIS STATEMENT THE ICC ISSUED A NEW ORDER GRANTING AFL'S
APPLICATION, AND A SINGLE DISTRICT JUDGE RESTRAINED THE OPERATION OF
THIS NEW ORDER.  THEREAFTER A THREE-JUDGE COURT CONDUCTED A FULL
HEARING ON THE MERITS AND SET ASIDE BOTH ICC ORDERS, ON THE GROUNDS
THAT THE AGENCY FAILED TO REQUIRE STRICT COMPLIANCE WITH ITS OWN RULES
AND THAT THE PENDENCY OF THE REVIEW PROCEEDINGS DEPRIVED THE ICC OF
JURISDICTION TO REOPEN THE ADMINISTRATIVE RECORD.  HELD: 

1.  THESE ICC RULES ARE MERE AIDS TO THE EXERCISE OF THE AGENCY'S
INDEPENDENT DISCRETION AND THE DISTRICT COURT EXACTED A STANDARD OF
COMPLIANCE WITH THESE PROCEDURAL RULES THAT WAS WHOLLY UNNECESSARY TO
PROVIDE AN ADEQUATE RECORD TO REVIEW THE ICC'S DECISION.  PP. 537-539. 

2.  THE ICC'S STATUTORY JURISDICTION TO PASS ON PETITIONS FOR
REHEARING MAY BE EXERCISED TO ADD TO ITS FINDINGS OR TO BUTTRESS THEM
AS IT SEEMS DESIRABLE, ABSENT ANY INTERFERENCE WITH OR INJUNCTION FROM
THE DISTRICT COURT.  HERE THE ICC HONORED THE DISTRICT COURT'S STAY
ORDER AND REOPENED THE RECORD MERELY TO REMEDY A DEFICIENCY BEFORE ANY
JUDICIAL REVIEW OF THE MERITS HAD BEGUN AND ACTED IN FULL HARMONY WITH
THAT COURT'S JURISDICTION.  PP. 539-542. 

298 F.SUPP.  1006, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE INTERSTATE COMMERCE COMMISSION HAS STATUTORY POWER TO GRANT MOTOR
CARRIERS TEMPORARY OPERATING AUTHORITY "WITHOUT HEARINGS OR OTHER
PROCEEDINGS" WHEN THE AUTHORITY RELATES TO A "SERVICE FOR WHICH THERE
IS AN IMMEDIATE AND URGENT NEED" AND WHERE THERE IS "NO CARRIER SERVICE
CAPABLE OF MEETING SUCH NEED."  /1A/  INTERSTATE COMMERCE ACT SEC.
210A, 52 STAT. 1238, AS AMENDED, 49 U.S.C. 310A.  THE ICC PROCESSES
APPLICATIONS FOR SUCH AUTHORITY UNDER RULES PROMULGATED IN 1965.  49
CFR PT. 1131.  /2/  AMONG OTHER THINGS, THOSE RULES REQUIRE THAT AN
APPLICANT ACCOMPANY HIS APPLICATION WITH SUPPORTING STATEMENTS OF
SHIPPERS THAT CONTAIN INFORMATION "DESIGNED TO ESTABLISH AN IMMEDIATE
AND URGENT NEED FOR SERVICE WHICH CANNOT BE MET BY EXISTING CARRIERS." 
ID., SEC. 1131.2(C).  EACH SUCH SUPPORTING STATEMENT "MUST CONTAIN AT
LEAST" 11 ITEMS OF INFORMATION /3/  INCLUDING THE FOLLOWING: 

     "(8) WHETHER EFFORTS HAVE BEEN MADE TO OBTAIN THE SERVICE FROM

  EXISTING MOTOR, RAIL, OR WATER CARRIERS, AND THE DATES AND

  RESULTS OF SUCH EFFORTS. 

"(9) NAMES AND ADDRESSES OF EXISTING CARRIERS WHO HAVE EITHER

  FAILED OR REFUSED TO PROVIDE THE SERVICE, AND THE REASONS GIVEN

  FOR ANY SUCH FAILURE OR REFUSAL." 

APPELLANT AMERICAN FARM LINES (AFL) FILED AN APPLICATION FOR
TEMPORARY OPERATING AUTHORITY.  /4/  THE APPLICATION WAS ACCOMPANIED BY
A SUPPORTING STATEMENT OF THE DEPARTMENT OF DEFENSE (DOD).  THE ICC
TEMPORARY AUTHORITIES BOARD DENIED THE APPLICATION ON THE GROUND THAT
THE "APPLICANT HAS NOT ESTABLISHED THAT THERE EXISTS AN IMMEDIATE AND
URGENT NEED FOR ANY OF THE SERVICE PROPOSED."  DIVISION I OF THE ICC
(ACTING AS AN APPELLANT DIVISION) REVERSED THE BOARD AND GRANTED AFL
TEMPORARY AUTHORITY.  PROTESTING CARRIERS SOUGHT REVIEW OF THIS ACTION
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
WASHINGTON.  A SINGLE JUDGE OF THE DISTRICT COURT TEMPORARILY
RESTRAINED THE OPERATION OF THE ICC ORDER AND THE ICC THEREUPON ORDERED
POSTPONEMENT OF THE OPERATION OF ITS GRANT.  AT THAT TIME NUMEROUS
PETITIONS FOR RECONSIDERATION WERE PENDING BEFORE THE COMMISSION AND
THE STAY ORDER DID NOT DIRECT THE COMMISSION TO STAY ITS HAND WITH
RESPECT TO THEM.  THE RECORD WAS INDEED NOT FILED WITH THE COURT UNTIL
MUCH LATER.  MEANWHILE, THE COMMISSION GRANTED THE PETITIONS AND
REOPENED THE PROCEEDING TO RECEIVE A FURTHER SUPPORTING STATEMENT OF
DOD.  THIS TOOK THE FORM OF THE VERIFIED STATEMENT OF VINCENT F.
CAPUTO, DOD DIRECTOR FOR TRANSPORTATION AND WAREHOUSING POLICY, WHICH
WAS SUBMITTED AS A PURPORTED REPLY TO THE PENDING PETITIONS FOR
RECONSIDERATION.  BASED UPON THIS STATEMENT, THE ICC ENTERED A NEW
ORDER GRANTING THE AFL APPLICATION.  A SINGLE JUDGE OF THE DISTRICT
COURT RESTRAINED THE OPERATION OF THE NEW ORDER.  THEREAFTER A THREE
JUDGE DISTRICT COURT CONDUCTED A FULL HEARING ON THE MERITS.  /5/  THE
ICC ADMITTED AT THAT STAGE THAT ITS FIRST ORDER "MAY NOT HAVE BEEN
BASED UPON EVIDENCE TO SUPPORT ITS CONCLUSION," BUT ARGUED THAT THERE
WAS NO INFIRMITY IN THE NEW ORDER.  THE THREE-JUDGE COURT SET ASIDE
BOTH ORDERS.  298 F.SUPP.  1006.  BOTH AFL AND ICC APPEALED TO THIS
COURT AND WE NOTED PROBABLE JURISDICTION.  /6/  396 U.S. 884. 

        I 

THE FIRST ALLEGED ERROR IN THE CASE IS THE FAILURE OF THE INTERSTATE
COMMERCE COMMISSION TO REQUIRE STRICT COMPLIANCE WITH ITS OWN RULES. 
THE RULES IN QUESTION, UNLIKE SOME OF OUR OWN, DO NOT INVOLVE
"JURISDICTIONAL" PROBLEMS BUT ONLY REQUIRE CERTAIN INFORMATION TO BE
SET FORTH IN STATEMENTS FILED IN SUPPORT OF APPLICATIONS OF MOTOR
CARRIERS FOR TEMPORARY OPERATING AUTHORITY. 

THE CAPUTO STATEMENT ASSERTED THAT PART OF THE TREMENDOUS VOLUME OF
TRAFFIC THAT DOD MOVED IN THE TERRITORIES INVOLVED HAD TO BE MOVED "IN
THE MOST EXPEDITIOUS MANNER POSSIBLE," AND THAT, SINCE AIR TRANSPORT
WAS PROHIBITIVELY EXPENSIVE "EXCEPT IN THE MOST EXTREME EMERGENCIES,"
THERE WAS AN "IMPERATIVE" NEED FOR THE MOST EXPEDITIOUS MOTOR CARRIER
SERVICE.  THE NEED FOR THIS EXPEDITIOUS TRANSPORT DID NOT REST MERELY
ON A DESIRE TO OBTAIN THE MOST EFFICIENT SERVICE, BUT IN ADDITION
RESTED ON THE NEED TO COORDINATE ARRIVAL TIMES OF SHIPMENTS WITH
FACTORY PRODUCTION SCHEDULES AND WITH SHIPLOADING OR AIRLIFT TIMES FOR
OVERSEAS SHIPMENTS.  THE PARTICULAR INADEQUACIES IN EXISTING SERVICE
WERE POINTED OUT, NAMELY, THE DELAYS INHERENT IN JOINT-LINE SERVICE,
REGULAR-ROUTE SERVICE, AND THE USE OF SINGLE DRIVERS.  THE STATEMENT
DID NOT ASSERT THAT NONE OF THE EXISTING CARRIERS PROVIDED SUFFICIENTLY
EXPEDITIOUS SERVICE TO MEET DOD NEEDS; RATHER IT CLAIMED THAT THE
CARRIERS PROVIDING SATISFACTORY SERVICE IN THE TERRITORIES IN QUESTION
WERE SO FEW IN NUMBER THAT THE ADDITIONAL SERVICES OF AFL WERE REQUIRED
TO MEET DOD'S TRANSPORTATION NEEDS. 

CONCEDEDLY, THE CAPUTO STATEMENT DID NOT GIVE THE DATES OF DOD'S
EFFORTS TO SECURE SERVICE FROM OTHER EXISTING CARRIERS OR A COMPLETE
LIST OF THE NAMES AND ADDRESSES OF THE CARRIERS WHO FAILED OR REFUSED
TO PROVIDE SERVICE, AS REQUIRED BY THE TERMS OF SUBSECTIONS (8) AND
(9), 49 CFR 1131.2(C).  SUCH A COMPLETE LISTING OF THIS INFORMATION,
GIVEN THE VOLUME OF TRAFFIC INVOLVED, WOULD INDEED HAVE BEEN A
MONUMENTAL UNDERTAKING. 

THE FAILURE OF THE CAPUTO STATEMENT TO PROVIDE THESE PARTICULAR
SPECIFICS DID NOT PREJUDICE THE CARRIERS IN MAKING PRECISE AND INFORMED
OBJECTIONS TO AFL'S APPLICATION.  THE BRIEFEST PERUSAL OF THE OBJECTING
CARRIERS' REPLIES, WHICH COVER SOME 156 PAGES IN THE PRINTED RECORD OF
THESE APPEALS, BELIES ANY SUCH CONTENTION.  NEITHER WAS THE STATEMENT
SO DEVOID OF INFORMATION THAT IT, ALONG WITH THE REPLIES OF THE
PROTESTING CARRIERS, COULD NOT SUPPORT A FINDING THAT AFL'S SERVICE WAS
REQUIRED TO MEET DOD'S IMMEDIATE AND URGENT TRANSPORTATION NEEDS.  IN
OUR VIEW, THE DISTRICT COURT EXACTED A STANDARD OF COMPLIANCE WITH
PROCEDURAL RULES THAT WAS WHOLLY UNNECESSARY TO PROVIDE AN ADEQUATE
RECORD TO REVIEW THE COMMISSION'S DECISION. 

THE COMMISSION IS ENTITLED TO A MEASURE OF DISCRETION IN
ADMINISTERING ITS OWN PROCEDURAL RULES IN SUCH A MANNER AS IT DEEMS
NECESSARY TO RESOLVE QUICKLY AND CORRECTLY URGENT TRANSPORTATION
PROBLEMS.  IT IS ARGUED THAT THE RULES WERE ADOPTED TO CONFER IMPORTANT
PROCEDURAL BENEFITS UPON INDIVIDUALS; IN OPPOSITION IT IS SAID THE
RULES WERE INTENDED PRIMARILY TO FACILITATE THE DEVELOPMENT OF RELEVANT
INFORMATION FOR THE COMMISSION'S USE IN DECIDING APPLICATIONS FOR
TEMPORARY AUTHORITY. 

WE AGREE WITH THE COMMISSION THAT THE RULES WERE PROMULGATED FOR THE
PURPOSE OF PROVIDING THE "NECESSARY INFORMATION" FOR THE COMMISSION "TO
REACH AN INFORMED AND EQUITABLE DECISION" ON TEMPORARY AUTHORITY
APPLICATIONS.  ICC POLICY RELEASE OF JANUARY 23, 1968.  THE COMMISSION
STATED THAT REQUESTS FOR TEMPORARY AUTHORITY WOULD BE TURNED DOWN "IF
THE APPLICATIONS DO NOT ADEQUATELY COMPLY WITH (THE) . . . RULES." 
IBID.  THE RULES WERE NOT INTENDED PRIMARILY TO CONFER IMPORTANT
PROCEDURAL BENEFITS UPON INDIVIDUALS IN THE FACE OF OTHERWISE
UNFETTERED DISCRETION AS IN VITARELLI V. SEATON, 359 U.S. 535; NOR IS
THIS A CASE IN WHICH AN AGENCY REQUIRED BY RULE TO EXERCISE INDEPENDENT
DISCRETION HAS FAILED TO DO SO.  ACCARDI V. SHAUGHNESSY, 347 U.S. 260;
YELLIN V. UNITED STATES, 374 U.S. 109.  THUS THERE IS NO REASON TO
EXEMPT THIS CASE FROM THE GENERAL PRINCIPLE THAT "(IT IS ALWAYS WITHIN
THE DISCRETION OF A COURT OR AN ADMINISTRATIVE AGENCY TO RELAX OR
MODIFY ITS PROCEDURAL RULES ADOPTED FOR THE ORDERLY TRANSACTION OF
BUSINESS BEFORE IT WHEN IN A GIVEN CASE THE ENDS OF JUSTICE REQUIRE IT.
THE ACTION OF EITHER IN SUCH A CASE IS NOT REVIEWABLE EXCEPT UPON A
SHOWING OF SUBSTANTIAL PREJUDICE TO THE COMPLAINING PARTY."  NLRB V.
MONSANTO CHEMICAL CO., 205 F.2D 763, 764.  AND SEE NLRB V. GRACE CO.,
184 F.2D 126, 129; SUN OIL CO. V. FPC, 256 F.2D 233; MCKENNA V. SEATON,
104 U.S.APP.D.C. 50, 259 F.2D 780. 

WE DEAL HERE WITH THE GRANT OF TEMPORARY AUTHORITY SIMILAR TO THAT
GRANTED IN ESTES EXPRESS LINES V. UNITED STATES, 292 F.SUPP.  842,
AFF'D, 394 U.S. 718.  THERE THE GRANT OF TEMPORARY AUTHORITY WAS UPHELD
EVEN THOUGH THERE MAY NOT HAVE BEEN LITERAL COMPLIANCE WITH SUBSECTIONS
(8) AND (9) OF THE COMMISSION'S RULES.  THAT RESULT WAS IN LINE WITH
SEC. 210AA) OF THE ACT WHICH WAS DESIGNED TO PROVIDE THE COMMISSION
WITH A SWIFT AND PROCEDURALLY SIMPLE ABILITY TO RESPOND TO URGENT
TRANSPORTATION NEEDS.  THAT FUNCTIONAL APPROACH IS SERVED BY TREATING
(8) AND (9) NOT AS INFLEXIBLE PROCEDURAL CONDITIONS BUT AS TOOLS TO AID
THE COMMISSION IN EXERCISING ITS DISCRETION TO MEET "AN IMMEDIATE AND
URGENT NEED" FOR SERVICES WHERE THE EXISTING SERVICE IS INCAPABLE OF
MEETING THAT NEED.  UNLIKE SOME RULES, THE PRESENT ONES ARE MERE AIDS
TO THE EXERCISE OF THE AGENCY'S INDEPENDENT DISCRETION. 

II 

AFTER THE COMMISSION ISSUED ITS FIRST ORDER, PETITIONS FOR
RECONSIDERATION WERE FILED AND BEFORE THEY WERE PASSED UPON, SOME
CARRIERS FILED SUIT AND A SINGLE JUDGE TEMPORARILY RESTRAINED OPERATION
OF THAT FIRST ORDER.  IT WAS AFTER THAT ORDER ISSUED AND OVER A MONTH
BEFORE THE CASE WAS ARGUED TO THE THREE-JUDGE COURT THAT THE COMMISSION
GRANTED THE PETITIONS FOR REHEARING AND REOPENED THE RECORD AND
RECEIVED THE CAPUTO VERIFIED STATEMENT. 

THE DISTRICT COURT HELD THAT THE PENDENCY OF THE REVIEW PROCEEDINGS
DEPRIVED THE COMMISSION OF JURISDICTION TO REOPEN THE ADMINISTRATIVE
RECORD. 

CONGRESS HAS PROVIDED AS RESPECTS SOME REGULATORY SYSTEMS THAT THE
AGENCY MAY MODIFY ANY FINDING UP UNTIL THE RECORD IS FILED WITH A
COURT.  SUCH IS THE PROVISION OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, 61 STAT. 147, 29 U.S.C. 160(D) AND SEC. 160(E), WHICH PROVIDES
THAT ANY SUBSEQUENT CHANGES IN THE RECORD WILL BE MADE ONLY AT THE
DIRECTION OF THE COURT.  A SIMILAR PROVISION IS INCLUDED IN SEC. 5 OF
THE FEDERAL TRADE COMMISSION ACT, 38 STAT. 719, AS AMENDED, 15 U.S.C.
45(C) AND IN SEC. 11 OF THE CLAYTON ACT, 38 STAT. 734, AS AMENDED, 15
U.S.C. 21(C).  AND A LIKE PROVISION IS INCLUDED IN THE REVIEW BY THE
COURTS OF APPEALS OF ORDERS OF OTHER DESIGNATED FEDERAL AGENCIES.  28
U.S.C. 2347(C) (1964 ED., SUPP. IV).  BUT THERE IS NO SUCH REQUIREMENT
IN THE INTERSTATE COMMERCE ACT.  /7/  IT INDEED EMPOWERS THE COMMISSION
"AT ANY TIME TO GRANT REHEARINGS AS TO ANY DECISION, ORDER, OR
REQUIREMENT AND TO REVERSE, CHANGE, OR MODIFY THE SAME."  /8/ 

THE POWER OF THE COMMISSION TO GRANT REHEARINGS IS NOT LIMITED OR
QUALIFIED BY THE TERMS OF 49 U.S.C. 17(6) OR SEC. 17(7).  THUS IN SEC.
17(6) IT IS SAID, "REHEARING, REARGUMENT, OR RECONSIDERATION MAY BE
GRANTED IF SUFFICIENT REASON THEREFOR BE MADE TO APPEAR."  AND SEC.
17(7) PROVIDES THAT IF AFTER REHEARING OR RECONSIDERATION THE ORIGINAL
DECISION, ORDER, OR REQUIREMENT APPEARS "UNJUST OR UNWARRANTED," THE
COMMISSION MAY "REVERSE, CHANGE, OR MODIFY" THE SAME.  THESE BROAD
POWERS ARE PLAINLY ADEQUATE TO ADD TO THE FINDINGS OR FIRM THEM UP AS
THE COMMISSION DEEMS DESIRABLE, ABSENT ANY COLLISION OR INTERFERENCE
WITH THE DISTRICT COURT. 

UNLESS CONGRESS PROVIDES OTHERWISE, "(WHERE A MOTION FOR REHEARING
IS IN FACT FILED THERE IS NO FINAL ACTION UNTIL THE REHEARING IS
DENIED."  OUTLAND V. CAB, 109 U.S.APP.D.C. 90, 93, 284 F.2D 224, 227. 
IN MULTI-PARTY PROCEEDINGS, SUCH AS THE PRESENT ONE, SOME MAY SEEK
JUDICIAL REVIEW AND OTHERS MAY SEEK ADMINISTRATIVE RECONSIDERATION. 
"THAT BOTH TRIBUNALS HAVE JURISDICTION DOES NOT MEAN, OF COURSE, THAT
THEY WILL ACT AT CROSS PURPOSES."  WRATHER-ALVAREZ BROADCASTING, INC.
V. FCC, 101 U.S.APP.D.C. 324, 327, 248 F.2D 646, 649.  THE CONCEPT "OF
AN INDIVISIBLE JURISDICTION WHICH MUST BE ALL IN ONE TRIBUNAL OR ALL IN
THE OTHER MAY FIT" SOME STATUTORY SCHEMES, IBID., BUT IT DOES NOT FIT
THIS ONE. 

THIS POWER OF THE COMMISSION TO RECONSIDER A PRIOR DECISION DOES NOT
NECESSARILY COLLIDE WITH THE JUDICIAL POWER OF REVIEW.  FOR WHILE THE
COURT PROPERLY COULD PROVIDE TEMPORARY RELIEF AGAINST A COMMISSION
ORDER, ITS ISSUANCE DOES NOT MEAN THAT THE COMMISSION LOSES ALL
JURISDICTION TO COMPLETE THE ADMINISTRATIVE PROCESS.  IT DOES MEAN THAT
THEREAFTER THE COMMISSION IS "WITHOUT POWER TO ACT INCONSISTENTLY WITH
THE COURT'S JURISDICTION."  INLAND STEEL CO. V. UNITED STATES, 306 U.S.
153, 160.  WHEN THE COMMISSION MADE THE ADDITIONAL FINDINGS AFTER ITS
FIRST ORDER WAS STAYED BY THE COURT, IT DID NOT ACT INCONSISTENTLY WITH
WHAT THE COURT HAD DONE.  IT DID NOT INTERFERE IN THE SLIGHTEST WITH
THE COURT'S PROTECTIVE ORDER.  WHAT THE COMMISSION DID CAME BEFORE THE
COURT WAS READY TO HEAR ARGUMENTS ON THE MERITS AND BEFORE THE RECORD
WAS FILED WITH IT.  MOREOVER, THE COMMISSION IN LIGHT OF THE DISTRICT
COURT'S STAY, BY EXPRESS TERMS, DIRECTED AFL NOT TO PERFORM OPERATIONS
UNDER THE FIRST ORDER AND MADE THE SECOND ORDER EFFECTIVE ONLY ON
FURTHER ORDER OF THE COMMISSION.  /9/  SINCE BY THE ACT THE COMMISSION
NEVER LOST JURISDICTION TO PASS ON PETITIONS FOR REHEARING, AND SINCE
THE STAY ORDER DID NOT FORBID IT FROM ACTING ON THOSE PENDING
PETITIONS, IT WAS NOT NECESSARY FOR THE COMMISSION TO SEEK PERMISSION
OF THE COURT TO MAKE THOSE RULINGS. 

THE COMMISSION REOPENED THE RECORD MERELY TO REMEDY A DEFICIENCY IN
IT BEFORE ANY JUDICIAL REVIEW OF THE MERITS HAD COMMENCED AND FULLY
HONORED THE STAY ORDER OF THE DISTRICT COURT.  IT THEREFORE ACTED IN
FULL HARMONY WITH THE COURT'S JURISDICTION. 
REVERSED. 

/1/  TOGETHER WITH NO. 382, INTERSTATE COMMERCE COMMISSION V. BLACK
BALL FREIGHT SERVICE ET AL., ON APPEAL FROM THE SAME COURT. 

/1A/  SECTION 210AA) PROVIDES IN PART: 

"TO ENABLE THE PROVISION OF SERVICE FOR WHICH THERE IS AN IMMEDIATE
AND URGENT NEED TO A POINT OR POINTS OR WITHIN A TERRITORY HAVING NO
CARRIER SERVICE CAPABLE OF MEETING SUCH NEED, THE COMMISSION MAY, IN
ITS DISCRETION AND WITHOUT HEARINGS OR OTHER PROCEEDINGS, GRANT
TEMPORARY AUTHORITY FOR SUCH SERVICE BY A COMMON CARRIER OR A CONTRACT
CARRIER BY MOTOR VEHICLE, AS THE CASE MAY BE. . . . " 

/2/  49 CFR 1131.4(B)(2) DEFINES THE STATUTORY TERM "IMMEDIATE AND
URGENT NEED" AS FOLLOWS: 

"AN IMMEDIATE AND URGENT NEED JUSTIFYING A GRANT OF TEMPORARY
AUTHORITY WILL BE DETERMINED TO EXIST ONLY WHERE IT IS ESTABLISHED THAT
THERE IS OR SOON WILL BE AN IMMEDIATE TRANSPORTATION NEED WHICH
REASONABLY CANNOT BE MET BY EXISTING CARRIER SERVICE.  SUCH A SHOWING
MAY INVOLVE A NEW OR RELOCATED PLANT, DIFFERENT METHOD OF DISTRIBUTION,
NEW OR UNUSUAL COMMODITIES, AN ORIGIN OR DESTINATION NOT PRESENTLY
SERVED BY CARRIERS, A DISCONTINUANCE OF EXISTING SERVICE, FAILURE OF
EXISTING CARRIERS TO PROVIDE SERVICE, OR COMPARABLE SITUATIONS WHICH
REQUIRE NEW MOTOR CARRIER SERVICE BEFORE AN APPLICATION FOR PERMANENT
AUTHORITY CAN BE FILED AND PROCESSED." 

/3/  SEE 49 CFR 1131.2(C). 

/4/  AFL IS A FEDERATION OF AGRICULTURAL MARKETING COOPERATIVES
CREATED IN 1964 TO PROVIDE TRANSPORTATION FOR ITS MEMBERS.  BY VIRTUE
OF SEC. 203(B)(5) OF THE INTERSTATE COMMERCE ACT, 54 STAT. 921, AS
AMENDED, 49 U.S.C. 303(B)(5), AFL MAY TRANSPORT FREIGHT FOR ITS MEMBERS
WITHOUT OBTAINING A CERTIFICATE OF CONVENIENCE AND NECESSITY FROM THE
ICC.  IN 1965 SEC. 203(B)(5) WAS CONSTRUED TO EXEMPT FROM THE
CERTIFICATION REQUIREMENT ANY FREIGHT TRANSPORTATION BY AN AGRICULTURAL
COOPERATIVE FOR SHIPPERS OTHER THAN ITS OWN MEMBERS TO THE EXTENT THAT
SUCH NONMEMBER TRANSPORTATION IS INCIDENTAL AND NECESSARY TO ITS
PRINCIPAL TRANSPORTATION ACTIVITIES.  SEE NORTHWEST AGRICULTURAL
COOPERATIVE ASSN. V. ICC, 350 F.2D 252.  THE NEXT YEAR, AFL BEGAN
TRANSPORTING FREIGHT FOR DOD.  IN 1968-1969 AFL'S ABILITY TO CONTINUE
SERVING DOD WAS RESTRICTED BY TWO EVENTS.  FIRST, CERTAIN COMPETING
CARRIERS OBTAINED INJUNCTIONS PROHIBITING AFL FROM MAKING TWO
CONSECUTIVE MOVEMENTS FOR DOD AND FROM TRANSPORTING FREIGHT FOR ANY
NONMEMBER EXCEPT WHEN GOING TO PICK UP, OR RETURNING FROM DELIVERY OF,
A MEMBER'S FREIGHT.  MUNITIONS CARRIERS CONFERENCE, INC. V. AMERICAN
FARM LINES, 415 F.2D 747.  SECOND, SEC. 203(B)(5) WAS AMENDED TO
RESTRICT THE EXEMPTION FOR AGRICULTURAL COOPERATIVES TO THOSE WHOSE
TRANSPORTATION FOR NONMEMBERS DOES NOT EXCEED 15% OF THEIR TOTAL ANNUAL
INTERSTATE TRANSPORTATION, MEASURED BY TONNAGE.  SEE 82 STAT. 448, 49
U.S.C. 303(B)(5) (1964 ED., SUPP. IV).  AFL HAD TRANSPORTED 74,155,685
POUNDS FOR DOD BETWEEN DECEMBER 1966 AND JUNE 1968, AND, IN AN EFFORT
TO CONTINUE PROVIDING THIS SERVICE, APPLIED TO THE ICC IN MAY 1968 FOR
TEMPORARY OPERATING AUTHORITY.  THE AUTHORITY SOUGHT WAS TO TRANSPORT
GENERAL COMMODITIES, INCLUDING CLASS A AND B EXPLOSIVES MOVING ON
GOVERNMENT BILLS OF LADING OVER IRREGULAR ROUTES BETWEEN POINTS IN
KENTUCKY, INDIANA, ILLINOIS, MISSOURI, ARKANSAS, LOUISIANA, TEXAS,
OKLAHOMA, AND KANSAS ON THE ONE HAND, AND POINTS IN WASHINGTON,
CALIFORNIA, NEVADA, UTAH, AND ARIZONA ON THE OTHER. 

AFL HAS APPLIED TO THE ICC FOR A CERTIFICATE OF PERMANENT
AUTHORITY.  IT WAS ESTIMATED AT ORAL ARGUMENT THAT FINAL ACTION ON THIS
APPLICATION WILL NOT BE TAKEN BY ICC BEFORE MID-1971.  MEANWHILE THE
ICC MAY EXTEND THE TEMPORARY AUTHORITY.  PAN-ATLANTIC STEAMSHIP CORP.
V. ATLANTIC COAST LINE R. CO., 353 U.S. 436. 

/5/  THE PRECISE CHRONOLOGY OF THESE EVENTS IS SHOWN IN N. 9,
INFRA. 

/6/  ICC IS NOT APPEALING FROM THE DISTRICT COURT'S DECISION SETTING
ASIDE THE FIRST ORDER. 

/7/  IT WAS ONCE PROPOSED THAT THE SAME REQUIREMENT BE WRITTEN INTO
THE LAW RESPECTING THOSE ORDERS OF THE COMMISSION REVIEWED BY THE
COURTS OF APPEAL AS DISTINGUISHED FROM THE THREE-JUDGE DISTRICT
COURTS.  SEE H.R. REP. NO. 1619, 80TH CONG., 2D SESS., 4.  BUT THE ICC
WAS DELETED FROM THE MEASURE.  ID., AT 1.  AND THE ACT AS APPROVED
COVERED ONLY OTHER DESIGNATED AGENCIES.  28 U.S.C. 2342 (1964 ED.,
SUPP. IV). 

/8/  SEE BALDWIN V. SCOTT COUNTY MILLING CO., 307 U.S. 478, 484. 

/9/  THE DISTRICT COURT'S STAY WAS ISSUED OCTOBER 2, 1968.  ON
OCTOBER 9, THE COMMISSION STAYED THE EFFECTIVE DATE OF ITS FIRST ORDER
"UNTIL FURTHER ORDER OF THE COMMISSION."  ON NOVEMBER 5, 1968, THE
COMMISSION REOPENED THE PROCEEDING BEFORE IT AND DIRECTED AFL, IN LIGHT
OF THE DISTRICT COURT'S ORDER, "NOT TO PERFORM" ANY OPERATIONS UNDER
ITS FIRST ORDER "UNTIL FURTHER ORDER OF THE COMMISSION."  ON NOVEMBER
12, 1968, THE COMMISSION ADVISED THE DISTRICT COURT OF ITS ACTION.  ON
DECEMBER 29, 1968, THE COMMISSION ENTERED ITS SECOND ORDER WHICH
AUTHORIZED COMMENCEMENT OF SERVICE BY AFL ONLY ON FURTHER NOTICE BY THE
ICC.  ON DECEMBER 31, 1968, A SUPPLEMENTAL COMPLAINT WAS FILED IN THE
DISTRICT COURT CHALLENGING THE COMMISSION'S SECOND ORDER.  ON JANUARY
6, 1969, A SINGLE JUDGE OF THE DISTRICT COURT STAYED THAT ORDER.  ON
MARCH 26, 1969, THE DISTRICT COURT ENTERED ITS JUDGMENT NOW BEING
REVIEWED. 

MR. JUSTICE BRENNAN, WHOM MR. JUSTICE STEWART AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT ON THE GROUND THAT
"(EVEN IF ICC HAD JURISDICTION TO REOPEN THE ICC PROCEEDING AND TO
CONSIDER THE CAPUTO VERIFIED STATEMENT, (THE STATEMENT) WOULD NOT MEET
THE REQUIREMENTS OF CATEGORIES (8) AND (9) OF ICC RULE 49 C.F.R.
1131.2(C)."  298 F.SUPP.  1006, 1011. 

INSOFAR AS ICC REGULATIONS EMPHASIZE THE REQUIREMENT OF INFORMATION
CONCERNING THE ABILITY OF EXISTING CARRIERS TO PROVIDE THE SERVICE
SOUGHT BY A SHIPPER, THEY IMPLEMENT NOT ONLY THE STATUTORY STANDARD
UNDER INTERSTATE COMMERCE ACT SEC. 210A, 49 U.S.C. 310A, BUT ALSO THE
FUNDAMENTAL SCHEME OF OUR NATIONAL TRANSPORTATION POLICY.  EVER SINCE
THE ENACTMENT IN 1887 OF THE INTERSTATE COMMERCE ACT, 24 STAT. 379,
NATIONAL POLICY HAS REFLECTED THE CONGRESSIONAL DETERMINATION THAT THE
PUBLIC INTEREST IS SERVED BY REGULATING COMPETITION AMONG CARRIERS. 
SEE, E.G., ACT OF SEPTEMBER 18, 1940, SEC. 1, 54 STAT. 899, 49 U.S.C.
PRECEDING SEC. 1.  REGULATION OF ENTRY INTO THE MOTOR TRANSPORTATION
INDUSTRY IS ONE IMPORTANT FEATURE OF THE PATTERN OF REGULATION. 
AMERICAN TRUCKING ASSOCIATIONS, INC. V. UNITED STATES, 344 U.S. 298
(1953); PAN-ATLANTIC STEAMSHIP CORP. V. ATLANTIC COAST LINE R. CO., 353
U.S. 436, 440 (1957) (BURTON, J., DISSENTING).  THE MOTOR CARRIER PART
OF THE INTERSTATE COMMERCE ACT WAS PASSED BECAUSE THE "INDUSTRY WAS
UNSTABLE ECONOMICALLY, DOMINATED BY EASE OF COMPETITIVE ENTRY AND A
FLUID RATE PICTURE" AND "AS A RESULT . . . BECAME OVERCROWDED WITH
SMALL ECONOMIC UNITS WHICH PROVED UNABLE TO SATISFY EVEN THE MOST
MINIMAL STANDARDS OF SAFETY OR FINANCIAL RESPONSIBILITY."  THEREFORE,
"CONGRESS FELT COMPELLED TO REQUIRE AUTHORIZATION FOR ALL INTERSTATE
OPERATIONS TO PRESERVE THE MOTOR TRANSPORTATION SYSTEM FROM OVER
COMPETITION."  AMERICAN TRUCKING ASSOCIATIONS, INC. V. UNITED STATES,
SUPRA, AT 312-313.  TO ENSURE FAIR AND EFFECTIVE REGULATION OF ENTRY,
49 U.S.C. 305-309 REQUIRE THAT ENTRY ORDINARILY BE AUTHORIZED BY THE
ICC ONLY AFTER FULL ADVERSARY PROCEEDINGS. 

OF THE MOTOR CARRIER PART SINCE IT PERMITS THE COMMISSION TO GRANT
TEMPORARY OPERATING AUTHORITY AFTER CONDUCTING ONLY A MINIMAL ADVERSARY
PROCEEDING; /1/  UNDER 49 CFR 1131.2-1131.2 ACTION IS TAKEN ON THE
BASIS OF THE WRITTEN APPLICATION, SUPPORTING STATEMENTS OF SHIPPERS,
AND WRITTEN RESPONSES AND OBJECTIONS OF PROTESTANTS.  BUT SEC. 210A,
LIKE THE STATUTORY PROVISION CONSIDERED IN UNITED STATES V. DRUM, 368
U.S. 370, 375 (1962), EXPRESSLY "BESPEAKS CONGRESSIONAL CONCERN OVER
DIVERSIONS OF TRAFFIC WHICH MAY HARM EXISTING CARRIERS UPON WHOM THE
BULK OF SHIPPERS MUST DEPEND FOR ACCESS TO MARKET."  THE SECTION IS
EXPLICIT THAT THE ICC MAY GRANT TEMPORARY OPERATING AUTHORITY ONLY "TO
A POINT OR POINTS OR WITHIN A TERRITORY HAVING NO CARRIER SERVICE
CAPABLE OF MEETING SUCH NEED." 

THIS CONGRESSIONAL CONCERN TO PROTECT EXISTING CARRIERS WAS AGAIN
FORCEFULLY EXPRESSED IN THE 1968 AMENDMENT TO SEC. 203(B)(5) OF THE
ACT, 82 STAT. 448, 49 U.S.C. 303(B)(5) (1964 ED., SUPP. IV), WHICH
CURTAILS SUBSTANTIALLY THE AUTHORITY OF AGRICULTURAL COOPERATIVES LIKE
AFL TO HAUL NONMEMBERS' FREIGHT. 

THE SENATE COMMITTEE NOTED THAT THE DECISION OF THE COURT OF APPEALS
FOR THE NINTH CIRCUIT IN NORTHWEST AGRICULTURAL COOPERATIVE ASSN. V.
ICC, 350 F.2D 252 (1965), "AND THE PUBLICITY ATTENDANT THERETO HAS, AS
A PRACTICAL MATTER, BEEN CONSTRUED BY SOME COOPERATIVES AS AN
INVITATION TO SUBSTANTIALLY EXPAND THEIR HAULING OF NON-FARM-RELATED
TRAFFIC FOR NONFARM MEMBERS, AND BY CERTAIN GROUPS AND ORGANIZATIONS AS
A DEVICE TO INSTITUTE UNLAWFUL TRANSPORTATION ACTIVITIES."  S. REP. NO.
1152, 90TH CONG., 2D SESS., 6.  THE REPORT ALSO STATES, AT 2: 

     "THE RELATIVE DECLINE OF THE NATION'S COMMON CARRIER SYSTEM IN

  RECENT YEARS IS A MATTER OF SERIOUS CONCERN.  SEVERAL TRAFFIC

  STUDIES REVEAL THAT COMMON CARRIERS HAVE LOST CONSIDERABLE

  TRAFFIC WHICH THEY FORMERLY HANDLED AND, AT THE SAME TIME, HAVE

  BEEN UNABLE TO SHARE PROPORTIONATELY IN THE ADDITIONAL TRAFFIC

  GENERATED BY THE NATION'S EXPANDING ECONOMY. 

      "THIS DECLINE IS ESSENTIALLY A RESULT OF THE GROWTH OF

  UNREGULATED PRIVATE AND EXEMPT CARRIAGE.  BUT IT IS ALSO

  ATTRIBUTABLE IN PART TO THE GROWTH OF UNAUTHORIZED AND ILLEGAL

  CARRIAGE.  SUCH ILLEGAL OPERATORS ARE INIMICAL TO THE PUBLIC

  INTEREST, AND IF LEFT UNCHECKED, COULD ULTIMATELY UNDERMINE THE

  COMMON CARRIER SYSTEM." 

THE ICC RECOGNIZES ITS DUTY TO GIVE EFFECT TO THIS CONGRESSIONAL
CONCERN FOR EXISTING CARRIERS IN THE PROVISION OF RULE 1131.4(B)(2)
THAT "(AN IMMEDIATE AND URGENT NEED JUSTIFYING A GRANT OF TEMPORARY
AUTHORITY WILL BE DETERMINED TO EXIST ONLY WHERE IT IS ESTABLISHED THAT
THERE IS OR SOON WILL BE AN IMMEDIATE TRANSPORTATION NEED WHICH
REASONABLY CANNOT BE MET BY EXISTING CARRIER SERVICE."  THIS KEY
DETERMINATION IS MADE UPON THE BASIS OF THE INFORMATION SUPPLIED IN
RESPONSE TO ITEMS (8) AND (9) OF 49 CFR 1131.2(C).  REASONABLE
DISCLOSURE OF WHATEVER EVIDENCE THERE MAY BE AS TO THE INADEQUACY OF
EXISTING SERVICE IS THUS OF CRUCIAL IMPORTANCE.  DISCLOSURE MAKES IT
POSSIBLE FOR PROTESTANTS TO FRAME SPECIFIC OBJECTIONS ADDRESSED TO
CONCRETE SITUATIONS, AND THEREBY COMPLY WITH THE PROVISION OF RULE
1131.3(A)(2) THAT PROTESTS "MUST BE SPECIFIC AS TO THE SERVICE WHICH
(THE) PROTESTANT CAN AND WILL OFFER . . . . "  DISCLOSURE ALSO PERMITS
THE ICC TO COME TO AN INFORMED JUDGMENT THAT PROPERLY RESPECTS THE
CONGRESSIONAL CONCERN FOR EXISTING CARRIERS.  IT FOLLOWS THAT DETAILS
AND NOT GENERALITIES ARE CALLED FOR.  THERE MUST BE DISCLOSURE, BY
DATES AND RESULTS, OF EFFORTS MADE BY THE SHIPPER TO OBTAIN THE NEEDED
SERVICE FROM EXISTING CARRIERS, WITH NAMES AND SPECIFIC REASONS GIVEN
FOR FAILURE OR REFUSAL TO PROVIDE THE SERVICE.  IN A CASE SUCH AS THIS,
ICC ACTION WITHOUT SUCH INFORMATION FLOUTS THE CONGRESSIONAL CONCERN. 

ICC RULES 1131.2(C)(8) AND (9) ARE NOT HYPERTECHNICAL RULES, OR MERE
MATTERS OF HOUSEKEEPING CONVENIENCE.  THEY GO TO THE HEART OF THE ISSUE
IN A TEMPORARY AUTHORITY PROCEEDING.  THE SIGNIFICANCE OF THE RULES
DOES NOT DEPEND ON WHETHER, IN THE COURT'S WORDS, THEY "CONFER
IMPORTANT PROCEDURAL BENEFITS UPON INDIVIDUALS," BUT RATHER ON THE FACT
THAT THEY ARE DESIGNED TO ELICIT INFORMATION CRUCIAL TO DETERMINING
WHETHER IN LIGHT OF CONGRESSIONAL POLICIES A PARTICULAR FACTUAL
SITUATION WARRANTS THE GRANT OF A TEMPORARY AUTHORITY.  NOR IS THE
QUESTION IN THIS CASE, AS THE COURT ASSUMES, WHETHER THE ICC ERRED IN
FAILING TO REQUIRE "STRICT" COMPLIANCE WITH THE RULES.  THE DISTRICT
COURT DID NOT HOLD THE COMMISSION TO A STANDARD OF STRICT COMPLIANCE,
AND APPELLEES HAVE NOT ARGUED THAT STRICT COMPLIANCE IS REQUIRED.  THE
ISSUE IS WHETHER THERE WAS REASONABLE COMPLIANCE WITH RULES THAT THE
ICC PURPORTED TO APPLY IN THIS CASE.  /2/  THE DISTRICT COURT FOUND
THAT THE CAPUTO STATEMENT RELIED ON BY THE ICC IN ISSUING THE NEW ORDER
"FAILS TO SHOW ANY EFFORTS BY THE DEPARTMENT OF DEFENSE TO OBTAIN FROM
EXISTING CARRIERS THE SERVICE AFL SEEKS TO PROVIDE, OR THE IDENTITY OF
ANY EXISTING CARRIERS WHO FAILED OR REFUSED TO PROVIDE THE NEEDED
SERVICE AND THE REASONS GIVEN FOR ANY SUCH FAILURE OR REFUSAL."  298
F.SUPP.,AT 1011.  I REACH THE SAME CONCLUSION FROM MY EXAMINATION OF
THE STATEMENT. 

AFL ARGUES THAT (8) AND (9) REQUIRE INFORMATION, NOT ACTION, AND
THAT THEREFORE A RESPONSE THAT NO EFFORT HAS BEEN MADE TO OBTAIN THE
SERVICE FROM OTHER CARRIERS IS COMPLIANCE WITH BOTH ITEMS.  HOWEVER,
APART FROM THE DOUBTFUL PREMISE THAT IN THE CIRCUMSTANCES OF THIS CASE
THE STATUTE WOULD AUTHORIZE A GRANT OF TEMPORARY OPERATING AUTHORITY
WITHOUT PROOF OF SUCH EFFORT, THE ARGUMENT IS FORECLOSED BY THE ICC'S
EXPRESS FINDING IN ITS SECOND ORDER THAT DOD DID IN FACT ATTEMPT TO
OBTAIN THE SERVICE ELSEWHERE.  /3/  SEE SEC V. CHENERY CORP., 332 U.S.
194, 196 (1947); BURLINGTON TRUCK LINES, INC. V. UNITED STATES, 371
U.S. 156, 168-169 (1962). 

THE ICC MAKES A DIFFERENT ARGUMENT.  IT CONCEDES THAT THE DOD
STATEMENT DOES NOT LITERALLY COMPLY WITH (8) AND (9) BUT ARGUES THAT
THE CONTENT OF THE STATEMENT CONSTITUTES REASONABLE COMPLIANCE.  THE
ICC INSISTS, THEREFORE, THAT THE PROTESTING CARRIERS WERE NOT
PREJUDICED BY THE LACK OF SPECIFIC INFORMATION.  INSOFAR AS THIS
ARGUMENT RESTS ON THE EXTENSIVE EXPLANATION IN THE DOD STATEMENT OF THE
ADVANTAGES OF SINGLE-LINE SERVICE, ICC'S OWN RULE REFUTES IT.  49 CFR
1131.4(B)(4) STATES: 

"GENERALLY, THE DESIRE OF A SHIPPER FOR SINGLE-LINE SERVICE IN LIEU
OF EXISTING INTERCHANGE OR CONNECTING-CARRIER SERVICE WILL NOT WARRANT
A GRANT OF TEMPORARY AUTHORITY.  A GRANT OF TEMPORARY AUTHORITY TO
EFFECTUATE SINGLE-LINE SERVICE WILL BE AUTHORIZED ONLY WHEN IT IS
CLEARLY ESTABLISHED THAT THE CARRIERS PROVIDING MULTIPLE-LINE SERVICE
ARE NOT CAPABLE OF, OR HAVE FAILED IN, MEETING THE REASONABLE IMMEDIATE
AND URGENT NEEDS OF SHIPPERS OR RECEIVERS BETWEEN THE POINTS OR
TERRITORIES AND IN.RESPECT OF THE COMMODITY OR COMMODITIES INVOLVED." 

THUS IT WAS NOT ENOUGH FOR THE STATEMENT TO ASSERT SIMPLY THAT DOD
DESIRES AFL'S SINGLE-LINE SERVICE BECAUSE DOD IS INTERESTED IN ECONOMY
AND EFFICIENCY; THE REQUIREMENT IS THAT THE STATEMENT SPELL OUT IN
DETAIL JUST WHAT DOD'S NEEDS ARE, WHY THESE NEEDS CANNOT BE MET BY
EXISTING CARRIERS, AND WHY THE AUTHORITY APPLIED FOR WILL ENABLE AFL TO
MEET THE NEEDS.  CONSEQUENTLY, IN THIS CASE REASONABLE COMPLIANCE WITH
(8) AND (9) MEANS AT LEAST COMPLIANCE SUFFICIENT TO PERMIT AN INFORMED
APPLICATION OF THE STANDARD SET FORTH IN SEC. 1131.4(B)(4).  IN MY VIEW
THE DOD STATEMENT FAILS THIS TEST.  IT DOES NOT INDICATE SPECIFICALLY
WHAT NEEDS ARE NOT BEING SATISFIED BY THE JOINT- OR SINGLE-LINE
SERVICES PROVIDED BY EXISTING CERTIFICATED CARRIERS, OR HOW THOSE NEEDS
WERE BROUGHT TO THE ATTENTION OF THE UNSATISFACTORY CARRIERS SO AS TO
DISCOVER WHETHER THEY COULD IMPROVE THEIR PERFORMANCE TO MEET DOD'S
NEEDS. 

THE STATEMENT BEGINS BY NOTING THAT DOD SHIPS A "TREMENDOUS VOLUME"
OF FREIGHT BETWEEN THE NINE-STATE AREA AND THE FIVE-STATE AREA IN
QUESTION, AND THAT "(A) PART OF THIS TRAFFIC REQUIRES THAT IT BE
TRANSPORTED FROM ORIGIN TO DESTINATION IN THE MOST EXPEDITIOUS MANNER
POSSIBLE."  IT ADDS THAT "(THIS DEFENSE NEED FOR SPEED HAS NOT BEEN MET
IN MANY, MANY INSTANCES BY THE CURRENT CERTIFIED MOTOR CARRIERS DUE TO
A NUMBER OF FACTORS," AMONG WHICH ARE THE FACTS THAT THE "MAJORITY"  OF
CARRIERS OFFER ONLY JOINT-LINE SERVICE, THAT "VIRTUALLY ALL"  CARRIERS
USE REGULAR ROUTES WHICH "OFTEN" ARE CIRCUITOUS, AND THAT "SOME"
CARRIERS USE SINGLE DRIVERS INSTEAD OF TWO-MAN TEAMS.  THE STATEMENT
THEN GIVES THREE EXAMPLES OF INADEQUATE SERVICE.  THE FIRST TWO
EXAMPLES SHOW THAT JOINT-LINE SERVICE IS IN THESE INSTANCES SLOWER THAN
SINGLE-LINE SERVICE, BUT THE SINGLE-LINE SERVICE CITED IS CURRENTLY
BEING PROVIDED BY A CERTIFIED CARRIER.  THUS THESE TWO EXAMPLES DO NOT
SHOW THAT ANY OF DOD'S NEEDS ARE NOT CURRENTLY BEING MET.  THE THIRD
EXAMPLE STATES THAT IN SOME INSTANCES, WHERE SINGLE-LINE SERVICE IS
AVAILABLE OVER REGULAR ROUTES, SERVICE OVER IRREGULAR ROUTES WOULD BE
FASTER.  BUT THE STATEMENT DOES NOT IDENTIFY THESE INSTANCES; IT DOES
NOT STATE WHETHER DOD BROUGHT THE INADEQUACIES TO THE ATTENTION OF ANY
CARRIER; NOR DOES IT STATE THAT TO DOD'S KNOWLEDGE THERE IS NO WAY THE
CERTIFIED CARRIERS COULD SPEED UP THEIR SERVICE BETWEEN THE POINTS IN
QUESTION SO AS TO MEET DOD'S REASONABLE "IMMEDIATE AND URGENT NEED." 
THIS ENTIRE SEGMENT OF THE CAPUTO STATEMENT FAILS SUBSTANTIALLY TO
CARRY OUT THE PURPOSE OF RULES 1131.2(C)(8) AND (9) BECAUSE IT DOES NOT
SUFFICIENTLY IDENTIFY WHAT DOD REGARDS AS PARTICULAR INADEQUACIES IN
CURRENT SERVICE, SO AS TO PERMIT THE PROTESTANTS TO MAKE A FOCUSED
RESPONSE AND THE ICC TO MAKE A FOCUSED ASSESSMENT OF DOD'S ASSERTED
NEEDS. 

THE STATEMENT GOES ON TO IDENTIFY NUMEROUS POINTS BETWEEN WHICH NO
KNOWN CERTIFICATED CARRIER IS AUTHORIZED TO PROVIDE SINGLE-LINE
SERVICE.  BUT FOR NONE OF THESE SPECIFIC ROUTES DOES IT EXPLAIN WHY
JOINT-LINE SERVICE IS NOT OR COULD NOT BE MADE REASONABLY ADEQUATE FOR
DOD'S NEEDS. 

THE STATEMENT NEXT REFERS TO PARTICULAR SITUATIONS CALLING FOR
RELIABLE DELIVERY TIMES, AND EXAMPLES OF HOW PRESENT SERVICE IS
UNRELIABLE.  AGAIN, THERE IS A FATAL LACK OF SPECIFIC INFORMATION
SHOWING THAT PERSENT SERVICE IS INADEQUATE.  THE STATEMENT EXPLAINS
THAT IT IS OFTEN NECESSARY TO COORDINATE ARRIVAL OF INBOUND SHIPMENTS
WITH PRODUCTION SCHEDULES AT FACTORIES.  AS AN EXAMPLE, IT CITES A
SITUATION IN WHICH ONLY ONE OF THE CURRENTLY CERTIFICATED CARRIERS HAS
PROVEN ABLE TO MEET THE DELIVERY SCHEDULES, EVEN THOUGH OTHER CARRIERS
WERE MADE AWARE OF THE NEED FOR "TIMED" DELIVERIES.  THE ONE
SATISFACTORY CARRIER CANNOT TRANSPORT THE ENTIRE LOAD.  HOWEVER, THE
STATEMENT DOES NOT IDENTIFY THE CARRIERS WHOSE SERVICE HAS BEEN
UNSATISFACTORY; IT DOES NOT SAY WHAT EFFORTS WERE MADE TO HAVE THEM
IMPROVE THEIR SERVICE; AND IT DOES NOT SAY WHY THEY HAVE NOT CONFORMED
TO DOD REQUIREMENTS.  THE SAME IS TRUE OF THE EXAMPLE OF PRESENT
CARRIERS' FAILURE TO MAKE DELIVERIES ON TIME FOR TRANSSHIPMENT OUTSIDE
THE UNITED STATES.  IT IS ALSO CLAIMED THAT CURRENT CARRIERS SOMETIMES
LACK AUTHORITY TO FORMULATE TRUCKLOAD SHIPMENTS OF DIVERSE COMMODITIES,
BUT NO EXAMPLES WHATEVER ARE CITED. 

FINALLY, THE STATEMENT GIVES FIVE EXAMPLES OF OUTSTANDING SERVICE BY
AFL, AND STATES THAT IN EACH CASE DOD EXPERIENCE SHOWS THAT JOINT-LINE
CARRIERS COULD NOT HAVE MET THE DEPARTMENT'S NEEDS.  AGAIN, THE
UNSATISFACTORY CARRIERS ARE NOT IDENTIFIED; THEIR REASONS FOR NOT
IMPROVING ARE NOT REPORTED; AND THE "EXPERIENCE" ON WHICH DOD BASES ITS
ASSESSMENT OF THEM IS NOT SPECIFIED. 

IN SUM, THE DOD STATEMENT FAILS TO SUPPLY THAT CONCRETE EVIDENCE OF
THE INABILITY OF PARTICULAR EXISTING CARRIERS TO PROVIDE THE NEEDED
SERVICE THAT WOULD ENABLE PROTESTANTS AND ICC TO MAKE AN INFORMED
ASSESSMENT OF AFL'S APPLICATION.  OF COURSE, DOD WAS NOT CALLED UPON TO
SUPPLY THE SPECIFICS OF INNUMERABLE INSTANCES OF INADEQUATE OR
UNAVAILABLE SERVICE OR OF EVERY EFFORT TO OF OBTAIN IMPROVED SERVICE. 
HOWEVER, THE CONGRESSIONAL CONCERN EXPRESSED IN THE STATUTORY
LIMITATION DEMANDED THAT ICC BE GIVEN AT LEAST ENOUGH SPECIFICS
CONCERNING INADEQUATE OR UNAVAILABLE SERVICE AND EFFORTS TO OBTAIN
BETTER SERVICE SO THAT PROTESTANTS WOULD HAVE AN OPPORTUNITY FOR
INFORMED REBUTTAL AND ICC THE BASIS FOR AN INFORMED DETERMINATION.  IT
IS OF COURSE IRRELEVANT THAT DOD IS THE NATION'S LARGEST SHIPPER AND
THAT ITS FREIGHT CONSISTS ALMOST ENTIRELY OF DEFENSE NEEDS.  ICC HAS
HELD THAT "(WHERE NECESSARY FACTS ARE LACKING" THE GOVERNMENT IS IN NO
BETTER POSITION THAN ANY OTHER SHIPPER.  RISS & CO., INC., EXTENSION--
EXPLOSIVES, 64 M.C.C. 299, 328 (1955), NATIONAL FREIGHT, INC.,
EXTENSION-- COMMODITIES IN BULK, 84 M.C.C. 403, 407 (1961). 

THE COURT PURPORTS TO FIND IN ESTES EXPRESS LINES V. UNITED STATES,
292 F.SUPP.  842 (D.C.E.D. VA. 1968), AFF'D PER CURIAM, 394 U.S. 718
(1969), SOME SUPPORT FOR ITS GLOSSING OVER THE INADEQUACIES IN THE DOD
STATEMENT.  IN THAT CASE AN ICC GRANT OF TEMPORARY AUTHORITY WAS
SUSTAINED WITHOUT A SHOWING THAT EFFORTS HAD BEEN MADE TO ESTABLISH
WHETHER ANY OTHER CARRIER WAS ABLE TO MEET THE ASSERTED NEED FOR THE
APPLICANT'S SERVICES.  BUT THE DIFFERENCES BETWEEN THAT CASE AND THE
PRESENT ONE ARE INSTRUCTIVE.  THERE THE APPLICATION WAS SUPPORTED BY
STATEMENTS OF 11 SEPARATE SHIPPERS, EACH OF WHOM REPORTED THAT HE HAD
PREVIOUSLY OBTAINED THE SERVICE FROM THE APPLICANT, AND THUS HAD NEVER
SOUGHT IT ELSEWHERE AND, FURTHER, KNEW OF NO OTHER CARRIER WITH THE
SPECIAL CHARACTERISTICS OF THE APPLICANT.  THE APPLICATION COVERED A
SINGLE ROUTE BETWEEN THE DISTRICT OF COLUMBIA AND RICHMOND, VIRGINIA,
AND THUS IT COULD REASONABLY HAVE BEEN FOUND THAT PROTESTANTS WERE NOT
PREJUDICED BY ANY LACK OF INFORMATION IN THE SUPPORTING STATEMENTS.  IN
STRIKING CONTRAST, THE AUTHORITY SOUGHT BY AFL COVERS TRANSPORTATION
BETWEEN ALL POINTS IN A NINE-STATE AREA AND ALL POINTS IN A FIVE-STATE
AREA.  IN MY VIEW, WHERE AN APPLICANT SEEKS TEMPORARY AUTHORITY AS
BROAD AS THIS, REASONABLE COMPLIANCE WITH RULES 1131.2(C)(8) AND (9)
REQUIRES MORE INFORMATION THAN DOD PROVIDED.  ACCORDINGLY, I WOULD
AFFIRM. 

/1/  IN SOME "EMERGENCY" SITUATIONS TEMPORARY AUTHORITY MAY BE
GRANTED WITHOUT THE NOTICE TO PROTESTANTS OTHERWISE REQUIRED BY ICC
RULES.  SEE 49 CFR 1131.2(D).  THAT PROVISION IS NOT AT ISSUE IN THIS
CASE. 

/2/  THE ICC MAKES NO CLAIM THAT IT DID NOT APPLY ITS REGULATIONS IN
THIS CASE; THE INSISTENCE IS THAT DOD'S SUPPORTING STATEMENT SATISFIED
THE RULES.  THERE IS, THEREFORE, NO OCCASION TO CONSIDER THE QUESTION
MOOTED IN THE BRIEFS WHETHER, IN LIGHT OF THE PRINCIPLE APPLIED IN
SERVICE V. DULLES, 354 U.S. 363 (1957), THE ICC COULD DEPART FROM ITS
OWN RULES.  SEE ALSO VITARELLI V. SEATON, 359 U.S. 535 (1959); ACCARDI
V. SHAUGHNESSY, 347 U.S. 260 (1954); YELLIN V. UNITED STATES, 374 U.S.
109 (1963); BRIDGES V. WIXON, 326 U.S. 135, 153 (1945). 

/3/  THE ICC EXPRESSLY FOUND "(THAT (DOD) HAS ATTEMPTED BUT HAS BEEN
UNABLE TO OBTAIN THE REQUIRED AND NECESSARY TYPE OF SERVICE AND KNOWS
OF NO CARRIER IN A POSITION TO MEET ITS NEEDS." 

JOSEPH A. CALIFANO, JR., ARGUED THE CAUSE FOR APPELLANT IN NO. 369. 
WITH HIM ON THE BRIEFS WERE JOHN D. HAWKE, JR., AND WILLIAM L.
PETERSON, JR. ARTHUR J. CERRA ARGUED THE CAUSE FOR APPELLANT IN NO.
382.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL MCLAREN, DEPUTY SOLICITOR GENERAL SPRINGER, JOHN H. D.
WIGGER, AND ROBERT W. GINNANE.     WILLIAM H. DEMPSEY, JR., ARGUED THE
CAUSE FOR APPELLEES IN BOTH CASES AND FILED A BRIEF FOR APPELLEES
CONSOLIDATED FREIGHTWAYS CORP. ET AL. IN BOTH CASES ED WHITE FILED A
BRIEF FOR RAILROAD APPELLEES; WILLIAM B. ADAMS, PETER T. BREADSLEY, AND
NELSON J. COONEY FILED A BRIEF FOR CERTAIN MOTOR CARRIER APPELLEES, AND
JAMES W. WRAPE AND ROBERT E. JOYNER FILED A BRIEF FOR DEALERS TRANSIT,
INC., ET AL.
..END :



LEWIS V. MARTIN, 397 U.S. 552 


       LEWIS ET AL. V. MARTIN, DIRECTOR, CALIFORNIA DEPARTMENT OF

           SOCIAL WELFARE, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

        NO. 829.  ARGUED MARCH 3-4, 1970-- DECIDED APRIL 20, 1970 


APPELLANTS, RECIPIENTS OF AID TO FAMILIES WITH DEPENDENT CHILDREN
(AFDC) ASSISTANCE, BROUGHT THIS SUIT CHALLENGING THE VALIDITY OF A
CALIFORNIA LAW AND REGULATIONS THAT CONCLUSIVELY PRESUME THAT THE
INCOME OF A NONADOPTIVE STEPFATHER OR A MAN ASSUMING THE ROLE OF A
SPOUSE (MARS) IS AVAILABLE TO THE CHILDREN IN COMPUTING THE AFDC
ASSISTANCE TO WHICH THEY ARE ENTITLED.  APPELLANTS CONTEND THAT THE
STATE PROVISIONS CONFLICT WITH THE SOCIAL SECURITY ACT AND DEPARTMENT
OF HEALTH, EDUCATION, AND WELFARE (HEW) REGULATIONS THEREUNDER
PROVIDING THAT INCOME FROM A NONADOPTIVE STEPFATHER WITHOUT LEGAL
OBLIGATION OF SUPPORT OR A MARS MAY NOT BE TREATED AS AVAILABLE TO THE
CHILDREN ABSENT PROOF OF ACTUAL CONTRIBUTIONS.  A THREE-JUDGE DISTRICT
COURT, HOLDING THE HEW REGULATIONS INVALID, DISMISSED THE COMPLAINT. 
HELD: 

1.  AFDC AID CAN BE GRANTED UNDER THE SOCIAL SECURITY ACT ONLY IF "A
PARENT" OF THE NEEDY CHILD IS CONTINUALLY ABSENT FROM THE HOME, THE
TERM "PARENT" INCLUDING ONLY A PERSON WITH A LEGAL DUTY OF SUPPORT. 
KING V. SMITH, 392 U.S. 309, 313, 327.  PP. 557-558. 

2.  THE HEW REGULATION VALIDLY IMPLEMENTS THE ACT SINCE HEW COULD
REASONABLY CONCLUDE THAT ONLY A PERSON AS NEAR AS A REAL OR ADOPTIVE
FATHER WOULD BE HAS THE CONSENSUAL RELATION TO THE FAMILY THAT MAKES IT
RELIABLY CERTAIN THAT HIS INCOME IS ACTUALLY AVAILABLE FOR SUPPORT OF
THE CHILDREN IN THE HOUSEHOLD.  PP. 558-560. 

3.  THE STATE, WHICH IS FORECLOSED FROM ARGUING THAT THE ASSUMPTION
OF-INCOME PROVISIONS COMPORT WITH THE ACT AS APPLIED TO MARS, MAY SEEK
TO SHOW ON REMAND ONLY THAT THOSE PROVISIONS MAY BE RETAINED UNDER THE
ACT AS APPLIED TO NONADOPTIVE STEPFATHERS IF IT CAN DEMONSTRATE THAT
THEIR LEGAL OBLIGATION UNDER STATE LAW IS CONSISTENT WITH THAT UNDER
FEDERAL LAW.  P. 560. 

312 F.SUPP.  197, REVERSED AND REMANDED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE MOTHERS AND CHILDREN WHO RECEIVE WELFARE ASSISTANCE
UNDER CALIFORNIA LAW.  /1/  AT THE TIME THESE ACTIONS WERE COMMENCED,
CALIFORNIA LAW PROVIDED /2/  THAT PAYMENTS TO A "NEEDY CHILD" WHO
"LIVES WITH HIS MOTHER AND A STEPFATHER OR AN ADULT MALE PERSON
ASSUMING THE ROLE OF SPOUSE TO THE MOTHER ALTHOUGH NOT LEGALLY MARRIED
TO HER"-- KNOWN IN THE VERNACULAR AS A MARS-- SHALL BE COMPUTED AFTER
CONSIDERATION IS GIVEN TO THE INCOME OF THE STEPFATHER OR MARS.  /3/
THE CALIFORNIA LAW CONCLUSIVELY PRESUMES THAT THE NEEDS OF THE CHILDREN
ARE REDUCED BY THE AMOUNT OF INCOME AVAILABLE FROM THE MAN IN THE HOUSE
WHETHER OR NOT IT IS IN FACT AVAILABLE OR ACTUALLY USED TO MEET THE
NEEDS OF THE DEPENDENT CHILDREN. 

FOLLOWING OUR DECISION IN KING V. SMITH, 392 U.S. 309, THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) PROMULGATED A
REGULATION REAFFIRMING ITS EARLIER RULINGS THAT THE INCOME OF A MAN NOT
CEREMONIALLY MARRIED TO THE MOTHER OF THE DEPENDENT CHILDREN MAY NOT BE
TREATED AS AVAILABLE TO THE CHILDREN UNLESS THERE IS PROOF THAT HE HAS
MADE ACTUAL CONTRIBUTIONS.  /4/  EVEN WHERE THE MAN IS CEREMONIALLY
MARRIED TO THE MOTHER BUT IS NOT THE REAL OR ADOPTIVE FATHER, HIS
INCOME MAY NOT BE TREATED AS AVAILABLE TO THE CHILDREN UNLESS HE IS
LEGALLY OBLIGATED TO SUPPORT THE CHILDREN BY STATE LAW.  /5/ 

THESE SUITS BY APPELLANTS WERE BROUGHT IN A THREE-JUDGE DISTRICT
COURT TO HAVE THE CALIFORNIA LAW AND REGULATIONS DECLARED INVALID. 
THAT COURT DISMISSED THE COMPLAINTS, HOLDING THE HEW REGULATIONS WERE
INVALID.  312 F.SUPP.  197.  THE CASES ARE HERE ON APPEAL AND WE NOTED
PROBABLE JURISDICTION.  396 U.S. 900. 

THE SOCIAL SECURITY ACT DEFINES A DEPENDENT CHILD AS A "NEEDY CHILD
. . . WHO HAS BEEN DEPRIVED OF PARENTAL SUPPORT OR CARE BY REASON OF
THE DEATH, CONTINUED ABSENCE FROM THE HOME, OR PHYSICAL OR MENTAL
INCAPACITY OF A PARENT, AND WHO IS LIVING WITH" A SPECIFIED RELATIVE. 
SEC. 406(A), 49 STAT. 629, 42 U.S.C. 606(A).  THIS IS THE AID TO
FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM WHICH WE DISCUSSED IN
KING V. SMITH. 

THE FEDERAL STATUTE PROVIDES THAT STATE AGENCIES ADMINISTERING AFDC
PLANS "SHALL, IN DETERMINING NEED (OF AN ELIGIBLE CHILD), TAKE INTO
CONSIDERATION ANY OTHER INCOME AND RESOURCES (OF THE CHILD) . . . AS
WELL AS ANY EXPENSES REASONABLY ATTRIBUTABLE TO THE EARNING OF ANY SUCH
INCOME."  42 U.S.C.602(A)(7) (1964 ED., SUPP. IV). 

THIS DIRECTIVE WAS IMPLEMENTED BY A REGULATION OF HEW, EFFECTIVE
JULY 1, 1967, WHICH, AS THEN WORDED, PROVIDED IN PART: 

"(ONLY INCOME AND RESOURCES THAT ARE, IN FACT, AVAILABLE TO AN
APPLICANT OR RECIPIENT FOR CURRENT USE ON A REGULAR BASIS WILL BE TAKEN
INTO CONSIDERATION IN DETERMINING NEED AND THE AMOUNT OF PAYMENT." 
/6/ 

WE STATED IN KING V. SMITH, SUPRA, AT 319 N. 16, THAT THOSE
REGULATIONS "CLEARLY COMPORT WITH" THE ACT.  AND AS WE HAVE NOTED,
SHORTLY AFTER KING V. SMITH, HEW PROMULGATED A NEW REGULATION /7/
WHICH PROVIDED IN PERTINENT PART: 

     "(A) A STATE PLAN FOR AID AND SERVICES TO NEEDY FAMILIES WITH

  CHILDREN . . . MUST PROVIDE THAT THE DETERMINATION WHETHER A

  CHILD HAS BEEN DEPRIVED OF PARENTAL SUPPORT OR CARE BY REASON OF

  THE DEATH, CONTINUED ABSENCE FROM THE HOME, OR PHYSICAL OR MENTAL

  INCAPACITY OF A PARENT . . . WILL BE MADE ONLY IN RELATION TO THE

  CHILD'S NATURAL OR ADOPTIVE PARENT, OR IN RELATION TO A CHILD'S

  STEPPARENT WHO IS CEREMONIALLY MARRIED TO THE CHILD'S NATURAL OR

  ADOPTIVE PARENT AND IS LEGALLY OBLIGATED TO SUPPORT THE CHILD

  UNDER STATE LAW OF GENERAL APPLICABILITY WHICH REQUIRES

  STEPPARENTS TO SUPPORT STEPCHILDREN TO THE SAME EXTENT THAT

  NATURAL OR ADOPTIVE PARENTS ARE REQUIRED TO SUPPORT THEIR

  CHILDREN. 

     "(B) THE INCLUSION IN THE FAMILY, OR THE PRESENCE IN THE HOME,

OF A 'SUBSTITUTE PARENT' OR 'MAN-IN-THE-HOUSE' OR ANY INDIVIDUAL

  OTHER THAN ONE DESCRIBED IN PARAGRAPH (A) OF THIS SECTION IS NOT

  AN ACCEPTABLE BASIS FOR A FINDING OF INELIGIBILITY OR FOR

  ASSUMING THE AVAILABILITY OF INCOME BY THE STATE.  . . . (IN THE

  CONSIDERATION OF ALL INCOME AND RESOURCES IN ESTABLISHING

  FINANCIAL ELIGIBILITY AND THE AMOUNT OF THE ASSISTANCE PAYMENT,

  ONLY SUCH NET INCOME AS IS ACTUALLY AVAILABLE FOR CURRENT USE ON

  A REGULAR BASIS WILL BE CONSIDERED, AND THE INCOME ONLY OF THE

  PARENT DESCRIBED IN PARAGRAPH (A) OF THIS SECTION WILL BE

  CONSIDERED AVAILABLE FOR CHILDREN IN THE HOUSEHOLD IN ABSENCE OF

 PROOF OF ACTUAL CONTRIBUTIONS." 

IN OTHER WORDS, THE REGULATIONS EXPLICITLY NEGATE THE IDEA THAT IN
DETERMINING A CHILD'S NEEDS, A STEPFATHER (I.E., A MAN MARRIED TO A
CHILD'S MOTHER BUT WHO HAS NOT ADOPTED THE CHILD AND IS NOT LEGALLY
OBLIGATED TO SUPPORT THE CHILD UNDER STATE LAW) OR A MARS MAY BE
PRESUMED TO BE PROVIDING SUPPORT.  /8/ 

WE SAID IN KING V. SMITH THAT AFDC AID CAN BE GRANTED "ONLY IF 'A
PARENT' OF THE NEEDY CHILD IS CONTINUALLY ABSENT FROM THE HOME."  392
U.S.,AT 313.  IF THE STEPFATHER OR MARS IS A "PARENT" WITHIN THE
MEANING OF THE FEDERAL ACT, ANY FEDERAL MATCHING ASSISTANCE UNDER THE
AFDC PROGRAM FOR CHILDREN LIVING WITH A MARS OR STEPFATHER WOULD NOT BE
AVAILABLE TO APPELLANTS.  THE THREE-JUDGE COURT SAID THAT "(THE HEW
REGULATION, BY REQUIRING PROOF OF ACTUAL CONTRIBUTIONS FROM A MARS,
REDUCES THE EXPECTATION OF CONGRESS TO A MERE HOPE."  312 F.SUPP.,AT
202.  WE DISAGREE.  WE TRAVERSED THE ENTIRE SPECTRUM OF THAT QUESTION
IN KING V. SMITH, AND FIND IT UNNECESSARY TO RESTATE THE LEGISLATIVE
HISTORY OF THE RELEVANT STATUTES.  WE CONCLUDED THAT CONGRESS "INTENDED
THE TERM 'PARENT' IN SEC. 406(A) OF THE ACT . . . TO INCLUDE ONLY THOSE
PERSONS WITH A LEGAL DUTY OF SUPPORT."  392 U.S.,AT 327.  AND WE WENT
ON TO SAY: 

     "IT IS CLEAR, AS WE HAVE NOTED, THAT CONGRESS EXPECTED

  'BREADWINNERS' WHO SECURED EMPLOYMENT WOULD SUPPORT THEIR

  CHILDREN.  THIS CONGRESSIONAL EXPECTATION IS MOST REASONABLY

  EXPLAINED ON THE BASIS THAT THE KIND OF BREADWINNER CONGRESS HAD

  IN MIND WAS ONE WHO WAS LEGALLY OBLIGATED TO SUPPORT HIS

  CHILDREN.  WE THINK IT BEYOND REASON TO BELIEVE THAT CONGRESS

  WOULD HAVE CONSIDERED THAT PROVIDING EMPLOYMENT FOR THE PARAMOUR

  OF A DESERTED MOTHER WOULD BENEFIT THE MOTHER'S CHILDREN WHOM HE

  WAS NOT OBLIGATED TO SUPPORT. 

     "BY A PARITY OF REASONING, WE THINK THAT CONGRESS MUST HAVE

  INTENDED THAT THE CHILDREN IN SUCH A SITUATION REMAIN ELIGIBLE

  FOR AFDC ASSISTANCE NOTWITHSTANDING THEIR MOTHER'S IMPROPRIETY." 

  ID., AT 329. 

THAT REASONING LED US TO INVALIDATE ALABAMA'S "SUBSTITUTE FATHER"
REGULATION.  /9/  LIKE REASONING LEADS US TO HOLD, CONTRARY TO THE
THREE-JUDGE DISTRICT COURT, THAT THE HEW REGULATION IS VALID.  WE ONLY
ADD THAT HEW MIGHT REASONABLY CONCLUDE THAT ONLY HE WHO IS AS NEAR AS A
REAL OR ADOPTIVE FATHER WOULD BE HAS THAT CONSENSUAL RELATION TO THE
FAMILY WHICH MAKES IT RELIABLY CERTAIN THAT HIS INCOME IS ACTUALLY
AVAILABLE FOR SUPPORT OF THE CHILDREN IN THE HOUSEHOLD.  HEW MAY, IN
OTHER WORDS, REASONABLY CONCLUDE THAT AN OBLIGATION TO SUPPORT UNDER
STATE LAW MUST BE OF "GENERAL APPLICABILITY" TO MAKE THAT OBLIGATION IN
REALITY A SOLID ASSUMPTION ON WHICH ESTIMATES OF FUNDS ACTUALLY
AVAILABLE TO CHILDREN ON A REGULAR BASIS MAY BE CALCULATED. 

ANY LESSER DUTY OF SUPPORT MIGHT MERELY BE A DEVICE FOR LOWERING
WELFARE BENEFITS WITHOUT GUARANTEEING THAT THE CHILD WOULD REGULARLY
RECEIVE THE INCOME ON WHICH THE REDUCTION IS BASED, THAT IS TO SAY, IT
WOULD NOT APPROXIMATE THE OBLIGATION TO SUPPORT PLACED ON AND NORMALLY
ASSUMED BY NATURAL OR ADOPTIVE PARENTS.  THAT READING OF THE ACT AND OF
KING V. SMITH CERTAINLY CANNOT BE SAID TO BE IMPERMISSIBLE. 

OUR DECISION IN KING V. SMITH HELD ONLY THAT A LEGAL OBLIGATION TO
SUPPORT WAS A NECESSARY CONDITION FOR QUALIFICATION AS A "PARENT"; IT
DID NOT ALSO SUGGEST THAT IT WOULD ALWAYS BE A SUFFICIENT CONDITION. 
WE FIND NOTHING IN THIS REGULATION TO SUGGEST INCONSISTENCY WITH THE
ACT'S BASIC PURPOSE OF PROVIDING AID TO "NEEDY" CHILDREN, EXCEPT WHERE
THERE IS A "BREADWINNER" IN THE HOUSE WHO CAN BE EXPECTED TO PROVIDE
SUCH AID HIMSELF.  HEW, THE AGENCY CHARGED WITH ADMINISTERING THE ACT,
HAS APPARENTLY CONCLUDED THAT AS A MATTER OF CURRENT, PRACTICAL
REALITIES, THE RELATIONSHIP OF THE MARS TO THE HOME IS LESS STABLE THAN
THAT OF THE STEPFATHER WHO AT LEAST HAS THE ADDITIONAL TIE OF THE
CEREMONIAL MARRIAGE, AND THAT THE LIKELIHOOD OF THE MARS' CONTRIBUTING
HIS INCOME TO THE CHILDREN-- EVEN IF LEGALLY OBLIGATED TO DO SO-- IS
SUFFICIENTLY UNCERTAIN IN THE ABSENCE OF THE MARRIAGE TIE, TO PREVENT
VIEWING HIM AS A "BREADWINNER" UNLESS THE BREAD IS ACTUALLY SET ON THE
TABLE.  NOTHING IN THIS RECORD SHOWS THAT THIS ADMINISTRATIVE JUDGMENT
DOES NOT CORRESPOND TO THE FACTS.  WE GIVE HEW THE DEFERENCE DUE THE
AGENCY CHARGED WITH THE ADMINISTRATION OF THE ACT, SEE, E.G., RED LION
BROADCASTING CO., INC. V. FCC, 395 U.S. 367, 381; ZEMEL V. RUSK, 381
U.S. 1, 11-12.  IN THE ABSENCE OF PROOF OF ACTUAL CONTRIBUTION,
CALIFORNIA MAY NOT CONSIDER THE CHILD'S "RESOURCES" TO INCLUDE EITHER
THE INCOME OF A NONADOPTING STEPFATHER WHO IS NOT LEGALLY OBLIGATED TO
SUPPORT THE CHILD AS IS A NATURAL PARENT, OR THE INCOME OF A MARS--
WHATEVER THE NATURE OF HIS OBLIGATION TO SUPPORT. 

CALIFORNIA ON REMAND IS FORECLOSED FROM ARGUING THAT ITS ASSUMPTION
OF-INCOME PROVISIONS ARE CONSISTENT WITH THE ACT AS APPLIED TO MARS;
THE STATE IS LIMITED TO DEMONSTRATING THAT THOSE PROVISIONS MAY BE
RETAINED UNDER THE ACT AS APPLIED TO NONADOPTING STEPFATHERS BY SHOWING
THAT THE LEGAL OBLIGATION PLACED ON SUCH STEPPARENTS IS CONSISTENT WITH
THE OBLIGATION REQUIRED BY THE FEDERAL REGULATION. 

WHETHER IN THAT POSTURE OF THE CASE CALIFORNIA'S LAWS AND
REGULATIONS ARE INCONSISTENT WITH THE FEDERAL STANDARD IS A QUESTION
THAT THE DISTRICT COURT DID NOT REACH.  THE CASE IS THEREFORE REVERSED
AND REMANDED SO THAT SUCH AN ADJUDICATION CAN BE MADE. 

              IT IS SO ORDERED. 

/1/  SOME OF THE APPELLANTS SUE ON BEHALF OF THEMSELVES, THEIR
CHILDREN, A MAN ASSUMING THE ROLE OF SPOUSE (MARS), AND ALL OTHERS
SIMILARLY SITUATED.  THERE ARE ALSO INTERVENORS WHO REPRESENT TWO
FAMILIES, ONE WITH A STEPFATHER AND ANOTHER WITH A MARS. 

/2/  CAL. WELF.  & INST'NS CODE SEC. 11351 (1966). 

ON SEPTEMBER 3, 1969, THE GOVERNOR OF CALIFORNIA SIGNED INTO LAW A
NEW SEC. 11351.5 OF THE CALIFORNIA WELFARE AND INSTITUTIONS CODE, WHICH
BECAME EFFECTIVE NOVEMBER 10, 1969.  IT LEAVES UNCHANGED SEC. 11351 AND
IMPLEMENTING REGULATIONS INSOFAR AS THEY APPLY TO A STEPFATHER, BUT
REPEALS THE OLD SEC. 11351 INSOFAR AS IT APPLIED TO "AN ADULT MALE
PERSON ASSUMING THE ROLE OF SPOUSE."  UNDER THE NEW LAW, A MARS "SHALL
BE REQUIRED TO MAKE A FINANCIAL CONTRIBUTION TO THE FAMILY WHICH SHALL
NOT BE LESS THAN IT WOULD COST HIM TO PROVIDE HIMSELF WITH AN
INDEPENDENT LIVING ARRANGEMENT."  THE NEW LAW ALSO PROVIDES THAT, UNDER
REGULATIONS TO BE PROMULGATED BY THE STATE WELFARE DEPARTMENT, THE MARS
AND THE MOTHER WILL BE REQUIRED TO PRESENT THE DEPARTMENT WITH "ALL OF
THE FACTS IN CONNECTION WITH THE SHARING OF EXPENSES . . . . " 

/3/  THE CALIFORNIA REGULATIONS THAT GOVERNED MARS AT THE TIME THESE
SUITS WERE BROUGHT WERE CAL. STATE DEPT. OF SOCIAL WELFARE, PUBLIC
SOCIAL SERVICES MANUAL SECS. 42-535 (EFFECTIVE NOV. 1, 1967), 44-133.5
(EFFECTIVE JULY 1, 1967).  AS TO A STEPFATHER, THE PERTINENT
REGULATIONS WERE ID. SECS. 42-531 (EFFECTIVE NOV. 1, 1967), 44-113.242
(EFFECTIVE JULY 1, 1967). 

FOR CRIMINAL SANCTIONS AGAINST A NATURAL FATHER WHO FAILS TO SUPPORT
HIS CHILDREN SEE CAL. PENAL CODE SEC. 270; CAL. WELF.  & INST'NS CODE
SECS. 11476-11477 (1966). 

/4/  45 CFR 203.1. 

/5/  ID., SEC. 203.1(A). 

/6/  HEW HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION, PT. IV, SEC.
3131.7.  IN ITS PRESENT FORM THE REGULATION PROVIDES: 

"(II) . . . IN ESTABLISHING FINANCIAL ELIGIBILITY AND THE AMOUNT OF
THE ASSISTANCE PAYMENT:  . . . (C) ONLY SUCH NET INCOME AS IS ACTUALLY
AVAILABLE FOR CURRENT USE ON A REGULAR BASIS WILL BE CONSIDERED, AND
ONLY CURRENTLY AVAILABLE RESOURCES WILL BE CONSIDERED."  45 CFR
233.20(A)(3)(II), 34 FED.REG.  1395. 

/7/  45 CFR 203.1. 

/8/  AN EXCEPTION IS A PERSON WHOSE PRESENCE IS DEEMED ESSENTIAL TO
THE WELL-BEING OF THE RECIPIENT OF ASSISTANCE AND WHO IS INCLUDED IN
THE FAMILY BUDGET UNIT FOR CALCULATION OF NEED.  SEE 42 U.S.C.
602(A)(7) (1964 ED., SUPP. IV) WHICH PROVIDES: 

"A STATE PLAN . . . MUST . . . PROVIDE THAT THE STATE AGENCY SHALL,
IN DETERMINING NEED, TAKE INTO CONSIDERATION ANY OTHER INCOME AND
RESOURCES OF ANY CHILD OR RELATIVE CLAIMING AID TO FAMILIES WITH
DEPENDENT CHILDREN, OR OF ANY OTHER INDIVIDUAL (LIVING IN THE SAME HOME
AS SUCH CHILD AND RELATIVE) WHOSE NEEDS THE STATE DETERMINES SHOULD BE
CONSIDERED IN DETERMINING THE NEED OF THE CHILD OR RELATIVE CLAIMING
SUCH AID, AS WELL AS ANY EXPENSES REASONABLY ATTRIBUTABLE TO THE
EARNING OF ANY SUCH INCOME . . . . "     THE SO-CALLED AFDC "ESSENTIAL
PERSON" IS ALSO COVERED BY REGULATION.  SEE 45 CFR 233.20(A)(2)(VI), 34
FED.REG.  1394. 

/9/  "UNDER THE ALABAMA REGULATION, AN 'ABLE-BODIED MAN, MARRIED OR
SINGLE, IS CONSIDERED A SUBSTITUTE FATHER OF ALL THE CHILDREN OF THE
APPLICANT . . . MOTHER' IN THREE DIFFERENT SITUATIONS:  (1) IF 'HE
LIVES IN THE HOME WITH THE CHILD'S NATURAL OR ADOPTIVE MOTHER FOR THE
PURPOSE OF COHABITATION'; OR (2) IF 'HE VISITS (THE HOME) FREQUENTLY
FOR THE PURPOSE OF COHABITING WITH THE CHILD'S NATURAL OR ADOPTIVE
MOTHER'; OR (3) IF 'HE DOES NOT FREQUENT THE HOME BUT COHABITS WITH THE
CHILD'S NATURAL OR ADOPTIVE MOTHER ELSEWHERE.'  WHETHER THE SUBSTITUTE
FATHER IS ACTUALLY THE FATHER OF THE CHILDREN IS IRRELEVANT.  IT IS
ALSO IRRELEVANT WHETHER HE IS LEGALLY OBLIGATED TO SUPPORT THE
CHILDREN, AND WHETHER HE DOES IN FACT CONTRIBUTE TO THEIR SUPPORT. 
WHAT IS DETERMINATIVE IS SIMPLY WHETHER HE 'COHABITS' WITH THE
MOTHER."  392 U.S.,AT 313-314. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

IN MY DISSENTING OPINION IN ROSADO V. WYMAN, ANTE, AT 430-433, I
POINTED OUT THAT IN MANY LAWSUITS BROUGHT AGAINST STATE WELFARE
AUTHORITIES BY RECIPIENTS OF AID TO FAMILIES WITH DEPENDENT CHILDREN
(AFDC) THE REAL CONTROVERSY IS NOT BETWEEN THE AFDC RECIPIENTS AND THE
STATE BUT BETWEEN THE FEDERAL GOVERNMENT AND THE STATE GOVERNMENT. 
THIS CASE PRESENTS PRECISELY THAT SITUATION.  THE SOLICITOR GENERAL HAS
INFORMED THE COURT THAT THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE (HEW)-- THE FEDERAL AGENCY VESTED BY STATUTE WITH THE DUTY OF
INSURING THAT STATES WHICH RECEIVE FEDERAL AFDC MATCHING FUNDS ABIDE BY
THE FEDERAL REQUIREMENTS-- HAS DETERMINED THAT SEC. 11351 OF THE
CALIFORNIA WELFARE AND INSTITUTIONS CODE IS INCONSISTENT WITH FEDERAL
AFDC REGULATIONS, 45 CFR 203.1.  THIS CALIFORNIA STATUTE PROVIDED WHEN
THIS SUIT WAS BROUGHT THAT THE INCOME OF A STEPFATHER OR A MAN ASSUMING
THE ROLE OF A SPOUSE (MARS) TO THE MOTHER OF DEPENDENT, NEEDY CHILDREN
SHALL BE CONSIDERED AS AVAILABLE TO THE CHILDREN IN COMPUTING THE AFDC
ASSISTANCE TO WHICH THE CHILDREN ARE ENTITLED.  THE FEDERAL
REGULATIONS, HOWEVER, IN GENERAL REFUSE TO ASSUME THAT THE INCOME OF A
STEPFATHER OR MARS IS AVAILABLE TO THE CHILDREN IN THE ABSENCE OF PROOF
OF ACTUAL CONTRIBUTIONS.  CALIFORNIA ADMITS THAT THERE IS A CONFLICT
BETWEEN THESE STATE AND FEDERAL PROVISIONS BUT CONTENDS THAT THE
FEDERAL REGULATIONS ARE INCONSISTENT WITH THE REQUIREMENTS OF THE
SOCIAL SECURITY ACT AND THAT ITS STATUTE IS CONSISTENT WITH THE ACT. 
THE CONTROVERSY BETWEEN THESE TWO GOVERNMENTS IS THUS REAL AND
SUBSTANTIAL.  IT WAS FOR EXACTLY SUCH SITUATIONS THAT THE SOCIAL
SECURITY ACT PROVIDED A COMPREHENSIVE REMEDIAL SCHEME FOR RESOLVING
DISPUTES BETWEEN FEDERAL AND STATE GOVERNMENTS.  SEE 42 U.S.C. 602,
604, 1316 (1964 ED. AND SUPP. IV).  UNDER THIS SCHEME HEW HAS THE
POWER, SUBJECT TO CERTAIN NOTICE AND HEARING REQUIREMENTS, TO TERMINATE
AFDC ASSISTANCE TO A STATE THAT REFUSES TO CONFORM TO THE FEDERAL
POLICIES.  IN THIS CASE, THE TERMINATION OF FEDERAL AFDC ASSISTANCE TO
CALIFORNIA OR THE CREDIBLE THREAT TO TERMINATE THAT ASSISTANCE IN THE
NEAR FUTURE WOULD COMPEL A RESOLUTION OF THE UNDERLYING ISSUE IN THIS
LAWSUIT BY FORCING CALIFORNIA (1) TO AMEND ITS LAWS TO CONFORM TO THE
EXISTING FEDERAL REGULATIONS, (2) TO CHALLENGE HEW'S DETERMINATION OF
NONCONFORMITY IN THE FEDERAL COURTS AS PROVIDED IN 42 U.S.C. 1316 (1964
ED., SUPP. IV), OR (3) TO WITHDRAW FROM THE FEDERALLY ASSISTED AFDC
PROGRAM.  GENERALLY, THE ACT PROVIDES PROCEDURES THAT ALLOW THE STATE
AND FEDERAL GOVERNMENTS TO RESOLVE THEIR DIFFERENCE EITHER BY AGREEMENT
OR BY LAWSUIT.  AS I STATED IN MY DISSENT IN ROSADO V. WYMAN, SUPRA, AT
434-435, IF THE CONGRESSIONAL OBJECTIVE IN ESTABLISHING THE ACT'S
REMEDIAL PROCEDURES IS TO BE REALIZED IT IS IMPERATIVE THAT THE
INTEGRITY OF THESE PROCEDURES NOT BE UNDERMINED BY PREMATURE LAWSUITS
BROUGHT BY WELFARE RECIPIENTS.  I THINK THESE REMEDIAL PROVISIONS OF
THE SOCIAL SECURITY ACT REFLECT AN UNMISTAKABLE INTENT TO GIVE HEW
PRIMARY JURISDICTION OVER TECHNICAL AND DIFFICULT WELFARE ISSUES AND
THAT THESE PROCEDURES SHOULD BE THE EXCLUSIVE ONES UNTIL THEY HAVE BEEN
EXHAUSTED.  ACCORDINGLY, IN MY VIEW IT WAS ERROR FOR THE DISTRICT COURT
TO ASSUME JURISDICTION AND DECIDE THIS CASE.  IT IS STRANGE INDEED TO
ME THAT THE FEDERAL GOVERNMENT HAS NEVER BEEN MADE A PARTY TO THIS
LAWSUIT ALTHOUGH ITS INTERESTS ARE DEEPLY INVOLVED. 

I WOULD ADD THIS NOTE OF CAUTION, HOWEVER.  THE FEDERAL GOVERNMENT HAS
NO POWER UNDER OUR CONSTITUTION TO FORCE OR COERCE A STATE INTO
DISOBEYING ITS OWN VALID LAWS WHILE THOSE LAWS ARE STILL ON THE BOOKS. 
MY CONCERN IN THIS REGARD ARISES FROM MY BELIEF THAT A STATE, ABSENT
SOME EXPRESS CONSTITUTIONAL PROHIBITION, HAS POWER AND AUTHORITY TO FIX
AND DETERMINE THE PROPERTY RELATIONSHIPS AND SUPPORT OBLIGATIONS AMONG
PERSONS WITHIN ITS BOUNDARIES.  I CERTAINLY HOPE THAT THE OPINION OF
THE COURT TODAY WILL NOT BE INTERPRETED AS COMPELLING A STATE TO
VIOLATE ITS OWN VALID LAWS IN ORDER TO OBTAIN MONEY FROM THE FEDERAL
GOVERNMENT. 

WHEN THIS ACTION WAS BROUGHT CHALLENGING THE CALIFORNIA STATUTE AS
INCONSISTENT WITH THE FEDERAL REGULATIONS, HEW WAS IN THE PROCESS OF
CONSIDERING THE EFFECT OF ITS NEW REGULATIONS ON THE CALIFORNIA
STATUTE.  IT IS NOW CLEAR THAT HEW WAS PREPARING TO RULE THAT THE
CALIFORNIA PROVISION WAS INCONSISTENT WITH THE FEDERAL REQUIREMENTS. 
IF THIS COURT TODAY WOULD VACATE THE JUDGMENT OF THE DISTRICT COURT,
THAT ORDER WOULD LEAVE HEW FREE TO PROCEED TO SETTLE ITS CONTROVERSY
WITH CALIFORNIA AS CONGRESS HAS PROVIDED.  FOR THIS REASON, AND FOR
THOSE STATED ABOVE, I WOULD VACATE THE JUDGMENT OF THE DISTRICT COURT
AND ORDER THAT THE CASE BE DISMISSED AS PREMATURELY BROUGHT. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

UNLIKE DANDRIDGE V. WILLIAMS, ANTE, P. 471, THE ADMINISTRATIVE
PROCEDURES PROVIDED BY STATUTE HAVE NOT BEEN EXHAUSTED HERE.  FOR THIS
REASON HEW'S PRIMARY JURISDICTION REMAINS A BAR TO THE JURISDICTION OF
FEDERAL COURTS OVER SUITS BROUGHT BY WELFARE RECIPIENTS.  SEE ROSADO V.
WYMAN, ANTE, P. 430 (DISSENTING OPINION OF MR. JUSTICE BLACK).  I
THEREFORE JOIN THE DISSENT FILED BY MR. JUSTICE BLACK. 

ANTHONY G. AMSTERDAM ARGUED THE CAUSE FOR APPELLANTS.  ON THE BRIEF
WERE RUBIN TEPPER, STEVEN J. ANTLER, AND PETER SITKIN. 

JAY S. LINDERMAN, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND ELIZABETH PALMER, DEPUTY ATTORNEY GENERAL. 

FRANCIS X. BEYTAGH, JR., ARGUED THE CAUSE FOR THE UNITED STATES AS
AMICUS CURIAE URGING REVERSAL.  ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS, LAWRENCE G. WALLACE,
AND ALAN S. ROSENTHAL.  MARTIN GARBUS AND CARL RACHLIN FILED A BRIEF
FOR THE CENTER ON SOCIAL WELFARE POLICY & LAW ET AL. AS AMICI CURIAE
URGING REVERSAL. 
..END :


















BACHELLAR V. MARYLAND, 397 U.S. 564 


       BACHELLAR ET AL. V. MARYLAND

        CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND

        NO. 729.  ARGUED MARCH 2, 1970-- DECIDED APRIL 20, 1970 


PETITIONER'S CONVICTIONS FOR VIOLATING MARYLAND'S DISORDERLY CONDUCT
STATUTE STEMMING FROM A DEMONSTRATION PROTESTING THE VIETNAM CONFLICT
MUST BE SET ASIDE, AS THE JURY'S GENERAL VERDICT, IN LIGHT OF THE TRIAL
JUDGE'S INSTRUCTIONS, COULD HAVE RESTED ON SEVERAL GROUNDS, INCLUDING
"THE DOING OR SAYING . . . OF THAT WHICH OFFENDS, DISTURBS, INCITES, OR
TENDS TO INCITE A NUMBER OF PEOPLE GATHERED IN THE SAME AREA," AND A
CONVICTION ON THAT GROUND WOULD VIOLATE THE CONSTITUTIONAL PROTECTION
FOR THE ADVOCACY OF UNPOPULAR IDEAS.  STROMBERG V. CALIFORNIA, 283 U.S.
359.  PP. 565-571. 

3 MD.APP.  626, 240 A.2D 623, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

A JURY IN BALTIMORE CITY CRIMINAL COURT CONVICTED PETITIONERS OF
VIOLATING MD. ANN. CODE, ART. 27, SEC. 123 (1967 REPL.  VOL.), /1/
WHICH PROHIBITS "ACTING IN A DISORDERLY MANNER TO THE DISTURBANCE OF
THE PUBLIC PEACE, UPON ANY PUBLIC STREET . . . IN ANY (MARYLAND) CITY .
. . . "  /2/  THE PROSECUTION AROSE OUT OF A DEMONSTRATION PROTESTING
THE VIETNAM WAR WHICH WAS STAGED BETWEEN 3 AND SHORTLY AFTER 5 O'CLOCK
ON THE AFTERNOON OF MARCH 28, 1966, IN FRONT OF A UNITED STATES ARMY
RECRUITING STATION LOCATED ON A DOWNTOWN BALTIMORE STREET.  THE
MARYLAND COURT OF SPECIAL APPEALS REJECTED PETITIONERS' CONTENTION THAT
THEIR CONDUCT WAS CONSTITUTIONALLY PROTECTED UNDER THE FIRST AND
FOURTEENTH AMENDMENTS AND AFFIRMED THEIR CONVICTIONS.  3 MD.APP.  626,
240 A.2D 623 (1968).  THE COURT OF APPEALS OF MARYLAND DENIED
CERTIORARI IN AN UNREPORTED ORDER.  WE GRANTED CERTIORARI, 396 U.S. 816
(1969).  WE REVERSE. 

THE TRIAL JUDGE INSTRUCTED THE JURY THAT THERE WERE ALTERNATIVE
GROUNDS UPON WHICH PETITIONERS MIGHT BE FOUND GUILTY OF VIOLATING SEC.
123.  THE JUDGE CHARGED, FIRST, THAT A GUILTY VERDICT MIGHT BE RETURNED
IF THE JURY FOUND THAT PETITIONERS HAD ENGAGED IN "THE DOING OR SAYING
OR BOTH OF THAT WHICH OFFENDS, DISTURBS, INCITES OR TENDS TO INCITE A
NUMBER OF PEOPLE GATHERED IN THE SAME AREA."  THE JUDGE ALSO TOLD THE
JURY THAT "(A) REFUSAL TO OBEY A POLICEMAN'S COMMAND TO MOVE ON WHEN
NOT TO DO SO MAY ENDANGER THE PUBLIC PEACE, MAY AMOUNT TO DISORDERLY
CONDUCT."  /3/  SO INSTRUCTED, THE JURY RETURNED A GENERAL VERDICT OF
GUILTY AGAINST EACH OF THE PETITIONERS. 

SINCE PETITIONERS ARGUE THAT THEIR CONDUCT WAS CONSTITUTIONALLY
PROTECTED, WE HAVE EXAMINED THE RECORD FOR OURSELVES.  WHEN "A CLAIM OF
CONSTITUTIONALLY PROTECTED RIGHT IS INVOLVED, IT 'REMAINS OUR DUTY . .
. TO MAKE AN INDEPENDENT EXAMINATION OF THE WHOLE RECORD.'"  COX V.
LOUISIANA (I), 379 U.S. 536, 545 N. 8 (1965).  WE SHALL DISCUSS FIRST
THE FACTUAL SITUATION THAT EXISTED UNTIL SHORTLY BEFORE 5 O'CLOCK ON
THE AFTERNOON OF THE DEMONSTRATION, SINCE THE PATTERN OF EVENTS CHANGED
AFTER THAT TIME.  THERE IS GENERAL AGREEMENT REGARDING THE NATURE OF
THE EVENTS DURING THE INITIAL PERIOD. 

BALTIMORE LAW ENFORCEMENT AUTHORITIES HAD ADVANCE NOTICE OF THE
DEMONSTRATION, AND A DOZEN OR MORE POLICE OFFICERS AND SOME UNITED
STATES MARSHALS WERE ON HAND WHEN APPROXIMATELY 15 PROTESTERS BEGAN
PEACEFULLY TO MARCH IN A CIRCLE ON THE SIDEWALK IN FRONT OF THE
STATION.  THE MARCHERS CARRIED OR WORE SIGNS BEARING SUCH LEGENDS AS:
"PEASANT EMANCIPATION, NOT ESCALATION,"  "MAKE LOVE NOT WAR," "STOP IN
THE NAME OF LOVE," AND "WHY ARE WE IN VIET NAM?"  THE NUMBER OF
PROTESTERS INCREASED TO BETWEEN 30 AND 40 BEFORE THE DEMONSTRATION
ENDED.  A CROWD OF ONLOOKERS GATHERED NEARBY AND ACROSS THE STREET. 
FROM TIME TO TIME SOME OF THE PETITIONERS AND OTHER MARCHERS LEFT THE
CIRCLE AND DISTRIBUTED LEAFLETS AMONG AND TALKED TO PERSONS IN THE
CROWD.  THE LIEUTENANT IN CHARGE OF THE POLICE DETAIL TESTIFIED THAT HE
"OVERHEARD" SOME OF THE MARCHERS DEBATE WITH MEMBERS OF THE CROWD ABOUT
"THE VIET CONG SITUATION," AND THAT A FEW IN THE CROWD RESENTED THE
PROTEST; "(ONE PARTICULAR ONE OBJECTED VERY MUCH TO RECEIVING THE
CIRCULAR."  HOWEVER, THE LIEUTENANT DID NOT THINK THAT THE SITUATION
CONSTITUTED A DISTURBANCE OF THE PEACE.  HE TESTIFIED THAT "(AS LONG AS
THE PEACE WAS NOT DISTURBED I WASN'T DOING ANYTHING ABOUT IT." 

CLEARLY THE WORDING OF THE PLACARDS WAS NOT WITHIN THAT SMALL CLASS
OF "FIGHTING WORDS" THAT, UNDER CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S.
568, 574 (1942), ARE "LIKELY TO PROVOKE THE AVERAGE PERSON TO
RETALIATION, AND THEREBY CAUSE A BREACH OF THE PEACE," NOR IS THERE ANY
EVIDENCE THAT THE DEMONSTRATORS' REMARKS TO THE CROWD CONSTITUTED
"FIGHTING WORDS."  ANY SHOCK EFFECT CAUSED BY THE PLACARDS, REMARKS,
AND PEACEFUL MARCHING MUST BE ATTRIBUTED TO THE CONTENT OF THE IDEAS
BEING EXPRESSED, OR TO THE ONLOOKERS' DISLIKE OF DEMONSTRATIONS AS A
MEANS OF EXPRESSING DISSENT.  BUT "(IT IS FIRMLY SETTLED THAT UNDER OUR
CONSTITUTION THE PUBLIC EXPRESSION OF IDEAS MAY NOT BE PROHIBITED
MERELY BECAUSE THE IDEAS ARE THEMSELVES OFFENSIVE TO SOME OF THEIR
HEARERS,"  STREET V. NEW YORK, 394 U.S. 576, 592 (1969); SEE ALSO COX
V. LOUISIANA (I), SUPRA; EDWARDS V. SOUTH CAROLINA, 372 U.S. 229
(1963); TERMINIELLO V. CHICAGO, 337 U.S. 1 (1949), OR SIMPLY BECAUSE
BYSTANDERS OBJECT TO PEACEFUL AND ORDERLY DEMONSTRATIONS.  PLAINLY
NOTHING THAT OCCURRED DURING THIS PERIOD COULD CONSTITUTIONALLY BE THE
GROUND FOR CONVICTION UNDER SEC. 123.  INDEED, THE STATE MAKES NO CLAIM
THAT SEC. 123 WAS VIOLATED THEN. 

WE TURN NOW TO THE EVENTS THAT OCCURRED SHORTLY BEFORE AND AFTER 5
O'CLOCK.  THE PETITIONERS HAD LEFT THE MARCHERS AFTER HALF PAST 3 TO
ENTER THE RECRUITING STATION.  THERE THEY HAD ATTEMPTED TO PERSUADE THE
SERGEANT IN CHARGE TO PERMIT THEM TO DISPLAY THEIR ANTIWAR MATERIALS IN
THE STATION OR IN ITS WINDOW FRONTING ON THE SIDEWALK.  THE SERGEANT
HAD TOLD THEM THAT ARMY REGULATIONS FORBADE HIM TO GRANT SUCH
PERMISSION.  THE SIX THEREUPON STAGED A SIT-IN ON CHAIRS AND A COUCH IN
THE STATION.  /4/  A FEW MINUTES BEFORE 5 O'CLOCK THE SERGEANT ASKED
THEM TO LEAVE, AS HE WANTED TO CLOSE THE STATION FOR THE DAY.  WHEN
PETITIONERS REFUSED, THE SERGEANT CALLED ON UNITED STATES MARSHALS WHO
WERE PRESENT IN THE STATION TO REMOVE THEM.  AFTER DEPUTIZING SEVERAL
POLICE OFFICERS TO HELP, THE MARSHALS UNDERTOOK TO EJECT THE
PETITIONERS.  /5/ 

THERE IS IRRECONCILABLE CONFLICT IN THE EVIDENCE AS TO WHAT NEXT
OCCURRED.  THE PROSECUTION'S WITNESSES TESTIFIED THAT THE MARSHALS AND
THE POLICE OFFICERS "ESCORTED" THE PETITIONERS OUTSIDE, AND THAT THE
PETITIONERS THEREUPON SAT OR LAY DOWN, "BLOCKING FREE PASSAGE OF THE
SIDEWALK."  THE POLICE LIEUTENANT IN CHARGE STATED THAT HE THEN TOOK
OVER AND THREE TIMES ORDERED THE PETITIONERS TO GET UP AND LEAVE.  HE
TESTIFIED THAT WHEN THEY REMAINED SITTING OR LYING DOWN, HE HAD EACH OF
THEM PICKED UP BODILY AND REMOVED TO A PATROL WAGON.  IN SHARP
CONTRAST, DEFENSE WITNESSES SAID THAT EACH PETITIONER WAS THROWN BODILY
OUT THE DOOR OF THE STATION AND LANDED ON HIS BACK, THAT PETITIONERS
WERE NOT POSITIONED SO AS TO BLOCK THE SIDEWALK COMPLETELY, AND THAT NO
POLICE COMMAND WAS GIVEN TO THEM TO MOVE AWAY; ON THE CONTRARY, THAT AS
SOME OF THEM STRUGGLED TO GET TO THEIR FEET, THEY WERE HELD DOWN BY THE
POLICE OFFICERS UNTIL THEY WERE PICKED UP AND THROWN INTO THE PATROL
WAGON.  THE EVIDENCE IS CLEAR, HOWEVER, THAT WHILE PETITIONERS WERE ON
THE SIDEWALK, THEY BEGAN TO SING "WE SHALL OVERCOME" AND THAT THEY WERE
SURROUNDED BY OTHER DEMONSTRATORS CARRYING ANTIWAR PLACARDS.  THUS,
PETITIONERS REMAINED OBVIOUS PARTICIPANTS IN THE DEMONSTRATION EVEN
AFTER THEIR EXPULSION FROM THE RECRUITING STATION.  /6/  A CROWD OF 50
150 PEOPLE, INCLUDING THE DEMONSTRATORS, WAS IN THE AREA DURING THIS
PERIOD. 

THE REACTION OF THE ONLOOKERS TO THESE EVENTS WAS SUBSTANTIALLY THE
SAME AS THAT TO THE EARLIER EVENTS OF THE AFTERNOON.  THE POLICE
LIEUTENANT ADDED ONLY THAT TWO UNIFORMED MARINES IN THE CROWD APPEARED
ANGRY AND THAT A FEW OTHER BYSTANDERS "WERE DEBATING BACK AND FORTH
ABOUT BOMB HANOI AND DIFFERENT THINGS AND I HAD TO BE OUT THERE TO
PROTECT THESE PEOPLE BECAUSE THEY WOULDN'T LEAVE."  EARLIER TOO,
HOWEVER, SOME OF THE CROWD HAD TAKEN EXCEPTION TO THE PETITIONERS'
PROTEST AGAINST THE VIETNAM WAR. 

ON THIS EVIDENCE, IN LIGHT OF THE INSTRUCTIONS GIVEN BY THE TRIAL
JUDGE, THE JURY COULD HAVE RESTED ITS VERDICT ON ANY OF A NUMBER OF
GROUNDS.  THE JURORS MAY HAVE FOUND THAT PETITIONERS REFUSED "TO OBEY A
POLICEMAN'S COMMAND TO MOVE ON WHEN NOT TO DO SO (MIGHT HAVE
ENDANGERED) THE PUBLIC PEACE."  OR THEY MAY HAVE RELIED ON A FINDING
THAT PETITIONERS DELIBERATELY OBSTRUCTED THE SIDEWALK, THUS OFFENDING,
DISTURBING, AND INCITING THE BYSTANDERS.  /7/  OR THE JURORS MAY HAVE
CREDITED PETITIONERS' TESTIMONY THAT THEY WERE THROWN TO THE SIDEWALK
BY THE POLICE AND HELD THERE, AND YET STILL HAVE FOUND THEM GUILTY OF
VIOLATING SEC. 123 BECAUSE THEIR ANTI-VIETNAM PROTEST AMOUNTED TO "THE
DOING OR SAYING . . . OF THAT WHICH OFFENDS, DISTURBS, INCITES OR TENDS
TO INCITE A NUMBER OF PEOPLE GATHERED IN THE SAME AREA."  THUS, ON THIS
RECORD, WE FIND THAT PETITIONERS MAY HAVE BEEN FOUND GUILTY OF
VIOLATING SEC. 123 SIMPLY BECAUSE THEY ADVOCATED UNPOPULAR IDEAS. 
SINCE CONVICTION ON THIS GROUND WOULD VIOLATE THE CONSTITUTION, IT IS
OUR DUTY TO SET ASIDE PETITIONERS' CONVICTIONS. 

STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931), IS THE CONTROLLING
AUTHORITY.  THERE THE JURY RETURNED A GENERAL VERDICT OF GUILTY AGAINST
AN APPELLANT CHARGED UNDER A CALIFORNIA STATUTE MAKING IT AN OFFENSE
PUBLICLY TO DISPLAY A RED FLAG (A) "AS A SIGN, SYMBOL OR EMBLEM OF
OPPOSITION TO ORGANIZED GOVERNMENT," (B) "AS AN INVITATION OR STIMULUS
TO ANARCHISTIC ACTION," OR (C) "AS AN AID TO PROPAGANDA THAT IS AND WAS
OF A SEDITIOUS CHARACTER."  ID., AT 361.  THIS COURT HELD THAT CLAUSE
(A) WAS UNCONSTITUTIONAL AS POSSIBLY PUNISHING PEACEFUL AND ORDERLY
OPPOSITION TO GOVERNMENT BY LEGAL MEANS AND WITHIN CONSTITUTIONAL
LIMITATIONS.  THE COURT HELD THAT, EVEN THOUGH THE OTHER TWO STATUTORY
GROUNDS WERE SEVERABLE AND C&NSTITUTIONAL, THE CONVICTION HAD TO BE
REVERSED, BECAUSE THE VERDICT "DID NOT SPECIFY THE GROUND UPON WHICH IT
RESTED.  AS THERE WERE THREE PURPOSES SET FORTH IN THE STATUTE, AND THE
JURY WERE INSTRUCTED THAT THEIR VERDICT MIGHT BE GIVEN WITH RESPECT TO
ANY ONE OF THEM, INDEPENDENTLY CONSIDERED, IT IS IMPOSSIBLE TO SAY
UNDER WHICH CLAUSE OF THE STATUTE THE CONVICTION WAS OBTAINED.  IF ANY
ONE OF THESE CLAUSES, WHICH THE STATE COURT HAS HELD TO BE SEPARABLE,
WAS INVALID, IT CANNOT BE DETERMINED UPON THIS RECORD THAT THE
APPELLANT WAS NOT CONVICTED UNDER THAT CLAUSE.  . . . (THE NECESSARY
CONCLUSION FROM THE MANNER IN WHICH THE CASE WAS SENT TO THE JURY IS
THAT, IF ANY OF THE CLAUSES IN QUESTION IS INVALID UNDER THE FEDERAL
CONSTITUTION, THE CONVICTION CANNOT BE UPHELD."  283 U.S.,AT 368.  SEE
ALSO WILLIAMS V. NORTH CAROLINA, 317 U.S. 287 (1942); TERMINIELLO V.
CHICAGO, SUPRA; YATES V. UNITED STATES, 354 U.S. 298 (1957); STREET V.
NEW YORK, SUPRA. 

ON THIS RECORD, IF THE JURY BELIEVED THE STATE'S EVIDENCE,
PETITIONERS' CONVICTIONS COULD CONSTITUTIONALLY HAVE RESTED ON A
FINDING THAT THEY SAT OR LAY ACROSS A PUBLIC SIDEWALK WITH THE INTENT
OF FULLY BLOCKING PASSAGE ALONG IT, OR THAT THEY REFUSED TO OBEY POLICE
COMMANDS TO STOP OBSTRUCTING THE SIDEWALK IN THIS MANNER AND MOVE ON.
SEE, E.G., COX V. LOUISIANA (I), SUPRA, AT 554-555; SHUTTLESWORTH V.
BIRMINGHAM, 382 U.S. 87, 90-91 (1965).  IT IS IMPOSSIBLE TO SAY,
HOWEVER, THAT EITHER OF THESE GROUNDS WAS THE BASIS FOR THE VERDICT. 
ON THE CONTRARY, SO FAR AS WE CAN TELL, IT IS EQUALLY LIKELY THAT THE
VERDICT RESULTED "MERELY BECAUSE (PETITIONERS' VIEWS ABOUT VIETNAM
WERE) THEMSELVES OFFENSIVE TO SOME OF THEIR HEARERS."  STREET V. NEW
YORK, SUPRA, AT 592.  THUS, SINCE PETITIONERS' CONVICTIONS MAY HAVE
RESTED ON AN UNCONSTITUTIONAL GROUND, THEY MUST BE SET ASIDE. 

THE JUDGMENT OF THE MARYLAND COURT OF SPECIAL APPEALS IS REVERSED
AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE TRIAL IN THE CRIMINAL COURT WAS DE NOVO UPON APPEAL FROM A
CONVICTION IN THE MUNICIPAL COURT OF BALTIMORE.  THE CRIMINAL COURT
JUDGE SENTENCED EACH PETITIONER TO 60 DAYS IN JAIL AND A $50 FINE. 

/2/  THE STATUTE WAS AMENDED IN 1968 BUT WITHOUT CHANGE IN THE
OPERATIVE LANGUAGE INVOLVED IN THIS CASE.  SEE MD. ANN. CODE, ART. 27,
SEC. 123 (C) (SUPP. 1969). 

/3/  BOTH ELEMENTS OF THE INSTRUCTION WAS BASED ON THE MARYLAND
COURT OF APPEALS' CONSTRUCTION OF SEC. 123 IN DREWS V. MARYLAND, 224
MD. 186, 192, 167 A.2D 341, 343-344 (1961), VACATED AND REMANDED ON
OTHER GROUNDS, 378 U.S. 547 (1964), REAFFIRMED ON REMAND, 236 MD. 349,
204 A.2D 64 (1964), APPEAL DISMISSED AND CERT. DENIED, 381 U.S. 421
(1965).  THE INSTRUCTION WAS "THAT DISORDERLY CONDUCT IS THE DOING OR
SAYING OR BOTH OF THAT WHICH OFFENDS, DISTURBS, INCITES OR TENDS TO
INCITE A NUMBER OF PEOPLE GATHERED IN THE SAME AREA.  IT IS CONDUCT OF
SUCH NATURE AS TO AFFECT THE PEACE AND QUIET OF PERSONS WHO MAY WITNESS
IT AND WHO MAY BE DISTURBED OR PROVOKED TO RESENTMENT BECAUSE OF IT.  A
REFUSAL TO OBEY A POLICEMAN'S COMMAND TO MOVE ON WHEN NOT TO DO SO MAY
ENDANGER THE PUBLIC PEACE, MAY AMOUNT TO DISORDERLY CONDUCT." 

THE TRIAL JUDGE REFUSED TO GRANT PETITIONERS' REQUEST THAT THE JURY
BE CHARGED TO DISREGARD ANY ANGER OF ONLOOKERS THAT AROSE FROM THEIR
DISAGREEMENT WITH PETITIONERS' EXPRESSED VIEWS ABOUT VIETNAM.  FOR
EXAMPLE, THE JUDGE REFUSED TO INSTRUCT THE JURY THAT "IF THE ONLY
THREAT OF PUBLIC DISTURBANCE ARISING FROM THE ACTIONS OF THESE
DEFENDANTS WAS A THREAT THAT AROSE FROM THE ANGER OF OTHERS WHO WERE
MADE ANGRY BY THEIR DISAGREEMENT WITH THE DEFENDANTS' EXPRESSED VIEWS
CONCERNING VIET NAM, OR AMERICAN INVOLVEMENT IN VIET NAM, YOU MUST
ACQUIT THESE DEFENDANTS.  AND IF YOU HAVE A REASONABLE DOUBT WHETHER
THE ANGER OF THOSE OTHER PERSONS WAS OCCASIONED BY THEIR DISAGREEMENT
WITH DEFENDANTS' VIEWS ON VIET NAM, RATHER THAN BY THE CONDUCT OF THE
DEFENDANTS IN SITTING OR STAYING ON THE STREET, YOU MUST ACQUIT THESE
DEFENDANTS."     /4/  PETITIONERS' CONDUCT IN THE STATION IS NOT AT
ISSUE IN THIS CASE, SINCE THE STATE DID NOT PROSECUTE THEM FOR THEIR
CONDUCT IN THAT PLACE. 

/5/  THE LOCAL POLICE OFFICERS WERE DEPUTIZED AS MARSHALS BECAUSE
THEIR LOCAL POLICE POWERS DID NOT EXTEND TO THE FEDERALLY OPERATED
RECRUITING STATION. 

/6/  THE DEFENSE EVIDENCE INDICATED THAT PETITIONERS WERE ON THE
SIDEWALK AFTER THEIR REMOVAL FROM THE RECRUITING STATION FOR ONLY FIVE
MINUTES.  A PROSECUTION WITNESS TESTIFIED THAT THEY WERE THERE FOR 15
OR 20 MINUTES. 

/7/  MARYLAND STATES IN ITS BRIEF, AT 41-42, THAT "(OBSTRUCTING THE
SIDEWALK HAD THE LEGAL EFFECT UNDER THESE CIRCUMSTANCES OF NOT ONLY
CONSTITUTING A VIOLATION OF . . . SEC. 123 . . . BUT ALSO OF ARTICLE
27, SEC. 121 OF THE MARYLAND CODE, OBSTRUCTING FREE PASSAGE."  HAD THE
STATE WISHED TO ENSURE A JURY FINDING ON THE OBSTRUCTION QUESTION, IT
COULD HAVE PROSECUTED PETITIONERS UNDER SEC. 121, WHICH SPECIFICALLY
PUNISHES "(ANY PERSON WHO SHALL WILFULLY OBSTRUCT OR HINDER THE FREE
PASSAGE OF PERSONS PASSING ALONG OR BY ANY PUBLIC STREET OR HIGHWAY . .
. . " 

ANTHONY G. AMSTERDAM ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEF WAS FRED E. WEISGAL. 

H. EDGAR LENTZ, ASSISTANT ATTORNEY GENERAL OF MARYLAND, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE FRANCIS B. BURCH,
ATTORNEY GENERAL, AND EDWARD F. BORGERDING, ASSISTANT ATTORNEY
GENERAL. 
..END :




WOODWARD V. COMMISSIONER, 397 U.S. 572 


       WOODWARD ET AL. V. COMMISSIONER OF INTERNAL REVENUE

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 412.  ARGUED FEBRUARY 26, 1970-- DECIDED APRIL 20,
1970 


PETITIONER TAXPAYERS, MAJORITY STOCKHOLDERS OF AN IOWA CORPORATION,
VOTED FOR PERPETUAL EXTENSION OF THE CORPORATE CHARTER, AND UNDER IOWA
LAW BECAME OBLIGED TO PURCHASE AT ITS "REAL VALUE" THE STOCK OF A
MINORITY SHAREHOLDER WHO HAD VOTED AGAINST THE EXTENSION.  ON THE
PARTIES' FAILURE TO AGREE ON THE "REAL VALUE" OF THE MINORITY INTEREST,
PETITIONERS BROUGHT AN APPRAISAL ACTION IN STATE COURT AND THEREAFTER
BOUGHT THE MINORITY STOCK AT A VALUE FIXED BY THE COURT.  IN THEIR
FEDERAL INCOME TAX RETURNS PETITIONERS CLAIMED DEDUCTIONS AS "ORDINARY
. . . EXPENSES PAID . . . FOR THE MANAGEMENT, CONSERVATION, OR
MAINTENANCE OF PROPERTY HELD FOR THE PRODUCTION OF INCOME" FOR
ATTORNEYS', ACCOUNTANTS', AND APPRAISERS' FEES IN CONNECTION WITH THE
APPRAISAL LITIGATION.  THE COMMISSIONER OF INTERNAL REVENUE DISALLOWED
THE DEDUCTIONS "BECAUSE THE FEES REPRESENT CAPITAL EXPENDITURES IN
CONNECTION WITH THE ACQUISITION OF CAPITAL STOCK OF A CORPORATION," A
DETERMINATION SUSTAINED BY THE TAX COURT AND THE COURT OF APPEALS. 
PETITIONERS CONTEND THAT CURRENT DEDUCTIBILITY IS JUSTIFIED ON THE
GROUND THAT THE "PRIMARY PURPOSE" OF THE LITIGATION WAS NOT FOR DEFENSE
OR PERFECTION OF TITLE (A NONDEDUCTIBLE CAPITAL EXPENDITURE) BUT TO
DETERMINE THE STOCK'S VALUE.  HELD:  THE EXPENSES INCURRED BY
PETITIONERS MUST BE TREATED AS PART OF THEIR COST IN ACQUIRING THE
STOCK RATHER THAN AS ORDINAR[ EXPENSES SINCE THE APPRAISAL PROCEEDING
WAS MERELY THE SUBSTITUTE PROVIDED BY STATE LAW FOR THE PROCESS OF
NEGOTIATION TO FIX THE PRICE AT WHICH THE STOCK WAS TO BE PURCHASED. 
THE APPROPRIATE STANDARD HERE IS THE ORIGIN OF THE CLAIM LITIGATED
RATHER THAN THE TAXPAYERS'"PRIMARY PURPOSE" IN INCURRING THE APPRAISAL
LITIGATION EXPENSES.  PP. 575-579. 

410 F.2D 313, AFFIRMED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE AND UNITED STATES V. HILTON HOTELS CORP., POST, P. 580,
INVOLVE THE TAX TREATMENT OF EXPENSES INCURRED IN CERTAIN APPRAISAL
LITIGATION. 

TAXPAYERS OWNED OR CONTROLLED A MAJORITY OF THE COMMON STOCK OF THE
TELEGRAPH-HERALD, AN IOWA PUBLISHING CORPORATION.  THE TELEGRAPH-HERALD
WAS INCORPORATED IN 1901, AND ITS CHARTER WAS EXTENDED FOR 20-YEAR
PERIODS IN 1921 AND 1941.  ON JUNE 9, 1960, TAXPAYERS VOTED THEIR
CONTROLLING SHARE OF THE STOCK OF THE CORPORATION IN FAVOR OF A
PERPETUAL EXTENSION OF THE CHARTER.  A MINORITY STOCKHOLDER VOTED
AGAINST THE EXTENSION.  IOWA LAW REQUIRES "THOSE STOCKHOLDERS VOTING
FOR SUCH RENEWAL . . . (TO) PURCHASE AT ITS REAL VALUE THE STOCK VOTED
AGAINST SUCH RENEWAL."  IOWA CODE SEC. 491.25 (1966). 

TAXPAYERS ATTEMPTED TO NEGOTIATE PURCHASE OF THE DISSENTING
STOCKHOLDER'S SHARES, BUT NO AGREEMENT COULD BE REACHED ON THE "REAL
VALUE" OF THOSE SHARES.  CONSEQUENTLY, IN 1962 TAXPAYERS BROUGHT AN
ACTION IN STATE COURT TO APPRAISE THE VALUE OF THE MINORITY STOCK
INTEREST.  THE TRIAL COURT FIXED A VALUE, WHICH WAS SLIGHTLY REDUCED ON
APPEAL BY THE IOWA SUPREME COURT, WOODWARD V. QUIGLEY, 257 IOWA 1077,
133 N.W.2D 38, ON REHEARING, 257 IOWA 1104, 136 N.W.2D 280 (1965).  IN
JULY 1965, TAXPAYERS PURCHASED THE MINORITY STOCK INTEREST AT THE PRICE
FIXED BY THE COURT. 

DURING 1963, TAXPAYERS PAID ATTORNEYS', ACCOUNTANTS', AND
APPRAISERS' FEES OF OVER $25,000, FOR SERVICES RENDERED IN CONNECTION
WITH THE APPRAISAL LITIGATION.  ON THEIR 1963 FEDERAL INCOME TAX
RETURNS, TAXPAYERS CLAIMED DEDUCTIONS FOR THESE EXPENSES, ASSERTING
THAT THEY WERE "ORDINARY AND NECESSARY EXPENSES PAID . . . FOR THE
MANAGEMENT, CONSERVATION, OR MAINTENANCE OF PROPERTY HELD FOR THE
PRODUCTION OF INCOME" DIDUCTIBLE UNDER SEC. 212 OF THE INTERNAL REVENUE
CODE OF 1954, 26 U.S.C. 212.  THE COMMISSIONER OF INTERNAL REVENUE
DISALLOWED THE DEDUCTION "BECAUSE THE FEES REPRESENT CAPITAL
EXPENDITURES INCURRED IN CONNECTION WITH THE ACQUISITION OF CAPITAL
STOCK OF A CORPORATION."  THE TAX COURT SUSTAINED THE COMMISSIONER'S
DETERMINATION, WITH TWO DISSENTING OPINIONS, 49 T.C. 377 (C.A. 8TH CIR.
1969).  WE GRANTED CERTIORARI, 396 U.S. 875 (1969), TO RESOLVE THE
CONFLICT OVER THE DEDUCTIBILITY OF THE COSTS OF APPRAISAL PROCEEDINGS
BETWEEN THIS DECISION AND THE DECISION OF THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT IN UNITED STATES V. HILTON HOTELS CORP., SUPRA.  /1/
WE AFFIRM. 

SINCE THE INCEPTION OF THE PRESENT FEDERAL INCOME TAX IN 1913,
CAPITAL EXPENDITURES HAVE NOT BEEN DEDUCTIBLE.  /2/  SEE INTERNAL
REVENUE CODE OF 1954, SEC. 263.  SUCH EXPENDITURES ARE ADDED TO THE
BASIS OF THE CAPITAL ASSET WITH RESPECT TO WHICH THEY ARE INCURRED, AND
ARE TAKEN INTO ACCOUNT FOR TAX PURPOSES EITHER THROUGH DEPRECIATION OR
BY REDUCING THE CAPITAL GAIN (OR INCREASING THE LOSS) WHEN THE ASSET IS
SOLD.  IF AN EXPENSE IS CAPITAL, IT CANNOT BE DEDUCTED AS "ORDINARY AND
NECESSARY," EITHER AS A BUSINESS EXPENSE UNDER SEC. 162 OF THE CODE OR
AS AN EXPENSE OF "MANAGEMENT, CONSERVATION, OR MAINTENANCE" UNDER SEC.
212.  /3/ 

IT HAS LONG BEEN RECOGNIZED, AS A GENERAL MATTER, THAT COSTS
INCURRED IN THE ACQUISITION OR DISPOSITION OF A CAPITAL ASSET ARE TO BE
TREATED AS CAPITAL EXPENDITURES.  THE MOST FAMILIAR EXAMPLE OF SUCH
TREATMENT IS THE CAPITALIZATION OF BROKERAGE FEES FOR THE SALE OR
PURCHASE OF SECURITIES, AS EXPLICITLY PROVIDED BY A LONGSTANDING
TREASURY REGULATION, TREAS. REG. ON INCOME TAX SEC. 1.263(A)-2(E), AND
AS APPROVED BY THIS COURT IN HELVERING V. WINMILL, 305 U.S. 79 (1938),
AND SPRECKELS V. COMMISSIONER, 315 U.S. 626 (1942).  THE COURT
RECOGNIZED THAT BROKERS' COMMISSIONS ARE "PART OF THE ACQUISITION COST
OF THE SECURITIES," HELVERING V. WINMILL, SUPRA, AT 84, AND RELIED ON
THE TREASURY REGULATION, WHICH HAD BEEN APPROVED BY STATUTORY RE
ENACTMENT, TO DENY DEDUCTIONS FOR SUCH COMMISSIONS EVEN TO A TAXPAYER
FOR WHOM THEY WERE A REGULAR AND RECURRING EXPENSE IN HIS BUSINESS OF
BUYING AND SELLING SECURITIES. 

THE REGULATIONS DO NOT SPECIFY OTHER SORTS OF ACQUISITION COSTS, BUT
RATHER PROVIDE GENERALLY THAT "(THE COST OF ACQUISITION . . . OF . . .
PROPERTY HAVING A USEFUL LIFE SUBSTANTIALLY BEYOND THE TAXABLE YEAR" IS
A CAPITAL EXPENDITURE.  TREAS. REG. ON INCOME TAX SEC. 1.263(A)-2(A). 
UNDER THIS GENERAL PROVISION, THE COURTS HAVE HELD THT LEGAL,
BROKERAGE, ACCOUNTING, AND SIMILAR COSTS INCURRED IN THE ACQUISITION OR
DISPOSITION OF SUCH PROPERTY ARE CAPITAL EXPENDITURES.  SEE, E.G.,
SPANGLER V. COMMISSIONER, 323 F.2D 913, 921 (C.A. 9TH CIR. 1963);
UNITED STATES V. ST. JOE PAPER CO., 284 F.2D 430, 432 (C.A. 5TH CIR.
1960).  SEE GENERALLY 4A J. MERTENS, LAW OF FEDERAL INCOME TAXATION
SECS. 25.25, 25.26, 25.40, 25A.15 (1966 REV.).  THE LAW COULD HARDLY BE
OTHERWISE, FOR SUCH ANCILLARY EXPENSES INCURRED IN ACQUIRING OR
DISPOSING OF AN ASSET ARE AS MUCH PART OF THE COST OF THAT ASSET AS IS
THE PRICE PAID FOR IT. 

MORE DIFFICULT QUESTIONS ARISE WITH RESPECT TO ANOTHER CLASS OF
CAPITAL EXPENDITURES, THOSE INCURRED IN "DEFENDING OR PERFECTING TITLE
TO PROPERTY."  TREAS. REG. ON INCOME TAX SEC. 1.263(A)-2(C).  IN ONE
SENSE, ANY LAWSUIT BROUGHT AGAINST A TAXPAYER MAY AFFECT HIS TITLE TO
PROPERTY-- MONEY OR OTHER ASSETS SUBJECT TO LIEN.  /4/  THE COURTS, NOT
BELIEVING THAT CONGRESS MEANT ALL LITIGATION EXPENSES TO BE
CAPITALIZED, HAVE CREATED THE RULE THAT SUCH EXPENSES ARE CAPITAL IN
NATURE ONLY WHERE THE TAXPAYER'S "PRIMARY PURPOSE" IN INCURRING THEM IS
TO DEFEND OR PERFECT TITLE.  SEE, E.G., RASSENFOSS V. COMMISSIONER, 158
F.2D 764 (C.A. 7TH CIR. 1946); INDUSTRIAL AGGREGATE CO. V. UNITED
STATES, 284 F.2D 639, 645 (C.A. 8TH CIR. 1960).  THIS TEST HARDLY DRAWS
A BRIGHT LINE, AND HAS PRODUCED A MELANGE OF DECISIONS, WHICH,AS THE
TAX COURT HAS NOTED, "(IT WOULD BE IDLE TO SUGGEST . . . CAN BE
RECONCILED."  RUOFF V. COMMISSIONER, 30 T.C. 204, 208 (1958).  /5/ 

TAXPAYERS URGE THAT THIS "PRIMARY PURPOSE" TEST, DEVELOPED IN THE
CONTEXT OF CASES INVOLVING THE COSTS OF DEFENDING PROPERTY, SHOULD BE
APPLIED TO COSTS INCURRED IN ACQUIRING OR DISPOSING OF PROPERTY AS
WELL.  AND IF IT IS SO APPLIED, THEY ARGUE, THE COSTS HERE IN QUESTION
WERE PROPERLY DEDUCTED, SINCE THE LEGAL PROCEEDINGS IN WHICH THEY WERE
INCURRED DID NOT DIRECTLY INVOLVE THE QUESTION OF TITLE TO THE MINORITY
STOCK, WHICH ALL AGREED WAS TO PASS TO TAXPAYERS, BUT RATHER WAS
CONCERNED SOLELY WITH THE VALUE OF THAT STOCK.  /6/ 

WE AGREE WITH THE TAX COURT AND THE COURT OF APPEALS THAT THE
"PRIMARY PURPOSE" TEST HAS NO APPLICATION HERE.  THAT UNCERTAIN AND
DIFFICULT TEST MAY BE THE BEST THAT CAN BE DEVISED TO DETERMINE THE TAX
TREATMENT OF COSTS INCURRED IN LITIGATION THAT MAY AFFECT A TAXPAYER'S
TITLE TO PROPERTY MORE OR LESS INDIRECTLY, AND THAT THUS CALLS FOR A
JUDGMENT WHETHER THE TAXPAYER CAN FAIRLY BE SAID TO BE "DEFENDING OR
PERFECTING TITLE."  SUCH UNCERTAINTY IS NOT CALLED FOR IN APPLYING THE
REGULATION THAT MAKES THE "COST OF ACQUISITION" OF A CAPITAL ASSET A
CAPITAL EXPENSE.  IN OUR VIEW APPLICATION OF THE LATTER REGULATION TO
LITIGATION EXPENSES INVOLVES THE SIMPLER INQUIRY WHETHER THE ORIGIN OF
THE CLAIM LITIGATED IS IN THE PROCESS OF ACQUISITION ITSELF. 

A TEST BASED UPON THE TAXPAYER'S "PURPOSE" IN UNDERTAKING OR
DEFENDING A PARTICULAR PIECE OF LITIGATION WOULD ENCOURAGE RESORT TO
FORMALISMS AND ARTIFICIAL DISTINCTIONS.  FOR INSTANCE, IN THIS CASE
THERE CAN BE NO DOUBT THAT LEGAL ACCOUNTING, AND APPRAISAL COSTS
INCURRED BY TAXPAYERS IN NEGOTIATING A PURCHASE OF THE MINORITY STOCK
WOULD HAVE BEEN CAPITAL EXPENDITURES.  SEE ATZINGEN-WHITEHOUSE DAIRY
INC. V. COMMISSIONER, 36 T.C. 173 (1961).  UNDER WHATEVER TEST MIGHT BE
APPLIED, SUCH EXPENSES WOULD HAVE CLEARLY BEEN "PART OF THE ACQUISITION
COST" OF THE STOCK.  HELVERING V. WINMILL, SUPRA.  YET THE APPRAISAL
PROCEEDING WAS NO MORE THAN THE SUBSTITUTE THAT STATE LAW PROVIDED FOR
THE PROCESS OF NEGOTIATION AS A MEANS OF FIXING THE PRICE AT WHICH THE
STOCK WAS TO BE PURCHASED.  ALLOWING DEDUCTION OF EXPENSES INCURRED IN
SUCH A PROCEEDING, MERELY ON THE GROUND THAT TITLE WAS NOT DIRECTLY PUT
IN QUESTION IN THE PARTICULAR LITIGATION, WOULD BE ANOMALOUS. 

FURTHER, A STANDARD BASED ON THE ORIGIN OF THE CLAIM LITIGATED
COMPORTS WITH THIS COURT'S RECENT RULING ON THE CHARACTERIZATION OF
LITIGATION EXPENSES FOR TAX PURPOSES IN UNITED STATES V. GILMORE, 372
U.S. 39 (1963).  THIS COURT THERE HELD THAT THE EXPENSE OF DEFENDING A
DIVORCE SUIT WAS A NONDEDUCTIBLE PERSONAL EXPENSE, EVEN THOUGH THE
OUTCOME OF THE DIVORCE CASE WOULD AFFECT THE TAXPAYER'S PROPERTY
HOLDINGS, AND MIGHT AFFECT HIS BUSINESS REPUTATION.  THE COURT REJECTED
A TEST THAT LOOKED TO THE CONSEQUENCES OF THE LITIGATION, AND DID NOT
EVEN CONSIDER THE TAXPAYER'S MOTIVES OR PURPOSES IN UNDERTAKING DEFENSE
OF THE LITIGATION, BUT RATHER EXAMINED THE ORIGIN AND CHARACTER OF THE
CLAIM AGAINST THE TAXPAYER, AND FOUND THAT THE CLAIM AROSE OUT OF THE
PERSONAL RELATIONSHIP OF MARRIAGE. 

THE STANDARD HERE PRONOUNCED MAY, LIKE ANY STANDARD, PRESENT
BORDERLINE CASES, IN WHICH IT IS DIFFICULT TO DETERMINE WHETHER THE
ORIGIN OF PARTICULAR LITIGATION LIES IN THE PROCESS OF ACQUISITION. 
/7/ THIS IS NOT SUCH A BORDERLINE CASE.  HERE STATE LAW REQUIRED
TAXPAYERS TO "PURCHASE" THE STOCK OWNED BY THE DISSENTER.  IN THE
ABSENCE OF AGREEMENT ON THE PRICE AT WHICH THE PURCHASE WAS TO BE MADE,
LITIGATION WAS REQUIRED TO FIX THE PRICE.  WHERE PROPERTY IS ACQUIRED
BY PURCHASE, NOTHING IS MORE CLEARLY PART OF THE PROCESS OF ACQUISITION
THAN THE ESTABLISHMENT OF A PURCHASE PRICE.  /8/  THUS THE EXPENSES
INCURRED IN THAT LITIGATION WERE PROPERLY TREATED AS PART OF THE COST
OF THE STOCK THAT THE TAXPAYERS ACQUIRED. 

              AFFIRMED. 

/1/  OTHER FEDERAL COURT DECISIONS ON THE POINT ARE IN CONFLICT. 
COMPARE BOULDER BUILDING CORP. V. UNITED STATES, 125 F.SUPP.  512
(D.C.W.D. OKLA. 1954) (HOLDING APPRAISAL PROCEEDING COSTS CAPITAL
EXPENDITURES), WITH SMITH HOTEL ENTERPRISES, INC. V. NELSON, 236
F.SUPP.  303 (D.C.E.D. WIS. 1964) (HOLDING SUCH COSTS DEDUCTIBLE AS
ORDINARY AND NECESSARY BUSINESS EXPENSE).  AND SEE HELLER V.
COMMISSIONER, 2 T.C. 371 (1943), AFF'D, 147 F.2D 376 (C.A. 9TH CIR.
1945) (HOLDING DISSENTING STOCKHOLDER'S APPRAISAL COSTS DEDUCTIBLE
UNDER PREDECESSOR TO SEC. 212). 

SEE ALSO NAYLOR V. COMMISSIONER, 203 F.2D 346 (C.A. 5TH CIR. 1953),
IN WHICH EXPENSES OF LITIGATION TO FIX THE PURCHASE PRICE OF STOCK SOLD
PURSUANT TO AN OPTION TO PURCHASE IT AT ITS NET ASSET VALUE ON A
CERTAIN DATE WERE HELD DEDUCTIBLE UNDER THE PREDECESSOR OF SEC. 212. 

/2/  SEE SEC. II B OF THE INCOME TAX ACT OF 1913, 38 STAT. 167. 

/3/  THE TWO SECTIONS ARE IN PARI MATERIA WITH RESPECT TO THE
CAPITAL-ORDINARY DISTINCTION, DIFFERING ONLY IN THAT SEC. 212 ALLOWS
DEDUCTIONS FOR THE ORDINARY AND NECESSARY EXPENSES OF NONBUSINESS
PROFITMAKING ACTIVITIES.  SEE UNITED STATES V. GILMORE, 372 U.S. 39, 44
45 (1963).  HELLER V. COMMISSIONER, N. 1, SUPRA, MAY HAVE BEEN BASED IN
PART ON THE PREMISE THAT THE PREDECESSOR OF SEC. 212 PERMITTED THE
DEDUCTION OF SOME EXPENSES THAT WOULD HAVE BEEN CAPITALIZED IF INCURRED
IN THE CONDUCT OF A TRADE OR BUSINESS. 

/4/  SEE HOCHSCHILD V. COMMISSIONER, 161 F.2D 817, 820 (C.A. 2D CIR.
1947) (FRANK, J., DISSENTING). 

/5/  A LARGE NUMBER OF THESE DECISIONS ARE COLLECTED IN 4A MERTENS,
SUPRA, SECS. 25.24, 25A.16. 

/6/  TAXPAYERS ARGUE AT LENGTH THAT UNDER IOWA LAW TITLE TO THE
STOCK PASSED BEFORE THE APPRAISAL PROCEEDING.  THE COURT OF APPEALS
VIEWED IOWA LAW DIFFERENTLY, AND IT SEEMS TO US THAT IT WAS CORRECT IN
SO DOING.  SEE UNITED STATES V. HILTON HOTELS CORP., POST, AT 583-584,
N. 2.  BUT RESOLUTION OF THIS QUESTION OF STATE LAW MAKES NO DIFFERENCE
AND IS NOT NECESSARY FOR DECISION OF THE CASE, SINCE, AS WE HOLD IN
HILTON HOTELS, THE SEQUENCE IN WHICH TITLE PASSES AND PRICE IS
DETERMINED IS IRRELEVANT FOR PURPOSES OF THE TAX QUESTION INVOLVED
HERE. 

/7/  SEE, E.G., PETSCHEK V. UNITED STATES, 335 F.2D 734 (C.A. 2D
CIR. 1964), FOR A BORDERLINE CASE OF WHETHER LEGAL EXPENSES WERE
INCURRED IN THE DISPOSITION OF PROPERTY. 

/8/  TAXPAYERS ARGUE THAT "PURCHASE" ANALYSIS CANNOT PROPERLY BE
APPLIED TO THE APPRAISAL SITUATION, BECAUSE THE TRANSACTION IS AN
INVOLUNTARY ONE FROM THEIR POINT OF VIEW-- AN ARGUMENT RELIED UPON BY
THE DISTRICT COURT IN THE SMITH HOTEL ENTERPRISES CASE, SUPRA, N. 1. 
IN THE FIRST PLACE, THE TRANSACTION IS IN A SENSE VOLUNTARY, SINCE THE
MAJORITY HOLDERS KNOW THAT UNDER STATE LAW THEY WILL HAVE TO BUY OUT
ANY DISSENTERS.  MORE FUNDAMENTALLY, HOWEVER, WHEREVER A CAPITAL ASSET
IS TRANSFERRED TO A NEW OWNER IN EXCHANGE FOR VALUE EITHER AGREED UPON
OR DETERMINED BY LAW TO BE A FAIR QUID PRO QUO, THE PAYMENT ITSELF IS A
CAPITAL EXPENDITURE, AND THERE IS NO REASON WHY THE COSTS OF
DETERMINING THE AMOUNT OF THAT PAYMENT SHOULD BE CONSIDERED CAPITAL IN
THE CASE OF THE NEGOTIATED PRICE AND YET CONSIDERED DEDUCTIBLE IN THE
CASE OF THE PRICE FIXED BY LAW.  SEE ISAAC G. JOHNSON & CO. V. UNITED
STATES, 149 F.2D 851 (C.A. 2D CIR. 1945) (EXPENSES OF LITIGATING AMOUNT
OF FAIR COMPENSATION IN CONDEMNATION PROCEEDING HELD CAPITAL
EXPENDITURES).     DONALD P. COONEY ARGUED THE CAUSE FOR PETITIONERS. 
ON THE BRIEF WAS MARTIN M. COONEY. 

ASSISTANT ATTORNEY GENERAL WALTERS ARGUED THE CAUSE FOR RESPONDENT. 
WITH HIM ON THE BRIEF WAS SOLICITOR GENERAL GRISWOLD, MATTHEW J. ZINN,
GILBERT E. ANDREWS, AND STUART A. SMITH. 
..END :























UNITED STATES V. HILTON HOTELS, 397 U.S. 580 


       UNITED STATES V. HILTON HOTELS CORP.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

      SEVENTH CIRCUIT

        NO. 528.  ARGUED FEBRUARY 26, 1970-- DECIDED APRIL 20,
1970 


RESPONDENT CORPORATION (HILTON), WHICH OWNED CLOSE TO 90% OF THE
STOCK OF WALDORF, DETERMINED TO MERGE THE TWO COMPANIES.  THE MERGER
WAS FORMALLY OPPOSED BY THE HOLDERS OF ABOUT 6% OF WALDORF SHARES,
TITLE TO WHOSE STOCK UNDER NEW YORK THEREUPON PASSED TO WALDORF, THE
DISSENTERS BECOMING WALDORF'S CREDITORS FOR ITS FAIR VALUE.  ON
DECEMBER 28, 1953, HILTON VOTED ITS WALDORF STOCK APPROVING THE MERGER,
WHICH WAS CONSUMMATED IN ACCORDANCE WITH NEW YORK LAW ON DECEMBER 31. 
THE DISSENTING WALDORF SHAREOWNERS THEREAFTER REJECTED A HILTON CASH
OFFER AND BEGAN APPRAISAL PROCEEDINGS IN THE NEW YORK COURTS.  HILTON
RETAINED A CONSULTANT TO VALUE THE WALDORF STOCK AS OF THE DAY BEFORE
THE WALDORF SHAREHOLDERS' MERGER VOTE, AND ALSO OBTAINED LEGAL AND
OTHER SERVICES IN CONNECTION WITH THE APPRAISAL LITIGATION, WHICH
ULTIMATELY ENDED IN A SETTLEMENT.  HILTON DEDUCTED THE CONSULTING AND
OTHER PROFESSIONAL FEES ON ITS INCOME TAX RETURN AS ORDINARY AND
NECESSARY BUSINESS EXPENSES, WHICH THE COMMISSIONER OF INTERNAL REVENUE
DISALLOWED ON THE GROUND THAT THE PAYMENTS WERE CAPITAL EXPENDITURES. 
HILTON PAID THE TAX AND BROUGHT THIS REFUND SUIT IN DISTRICT COURT,
WHICH HELD THAT THE PAYMENTS RELATED TO THE APPRAISAL PROCEEDING WERE
DEDUCTIBLE.  THE COURT OF APPEALS, APPLYING THE "PRIMARY PURPOSE" TEST,
AFFIRMED, NOTING THAT THE PROCEEDING WAS NOT NECESSARY TO EFFECT THE
MERGER BUT THAT ITS PARAMOUNT PURPOSE WAS TO DETERMINE THE FAIR VALUE
OF THE DISSENTING SHAREHOLDERS' SHARE IN WALDORF.  HELD: 

1.  LITIGATION COSTS ARISING OUT OF THE ACQUISITION OF A CAPITAL
ASSET ARE CAPITAL EXPENSES WHETHER OR NOT THE TAXPAYER INCURRED THEM
FOR THE PURPOSE OF DEFENDING OR PERFECTING TITLE TO PROPERTY, WOODWARD
V. COMMISSIONER, ANTE, P. 572, AND THE FUNCTIONAL NATURE OF THE
APPRAISAL REMEDY AS A FORCED PURCHASE OF THE DISSENTERS' STOCK IS THE
SAME, REGARDLESS OF WHETHER TITLE PASSED BEFORE OR AFTER THE PRICE OF
THEIR STOCK WAS DETERMINED.  PP. 583-584. 

2.  THE DEBT THAT HILTON INHERITED FROM WALDORF OF PAYING THE
DISSENTERS FOR THEIR SHARE RETAINED ITS CAPITAL CHARACTER THROUGH THE
MERGER, AS DID THE EXPENDITURE FOR FIXING THE AMOUNT OF THAT DEBT.  PP.
584-585. 

410 F.2D 194, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS IS THE COMPANION CASE TO WOODWARD V. COMMISSIONER, ANTE, P.
572, AND PRESENTS A SIMILAR QUESTION INVOLVING THE TAX TREATMENT OF
APPRAISAL LITIGATION EXPENSES. 

IN 1953 TAXPAYER HILTON HOTELS CORPORATION, WHICH OWNED CLOSE TO 90%
OF THE COMMON SHARES OF THE HOTEL WALDORF-ASTORIA CORPORATION,
DETERMINED TO MERGE THE TWO COMPANIES.  HILTON RETAINED A CONSULTING
FIRM TO PREPARE A MERGER STUDY TO DETERMINE A FAIR RATE OF EXCHANGE
BETWEEN HILTON STOCK AND WALDORF STOCK.  AFTER THIS STUDY WAS
COMPLETED, ON NOVEMBER 12, 1953, HILTON AND WALDORF ENTERED INTO A
MERGER AGREEMENT UNDER WHICH HILTON WOULD BE THE SURVIVING CORPORATION,
AND 1.25 SHARES OF HILTON STOCK WOULD BE OFFERED FOR EACH OUTSTANDING
WALDORF SHARE NOT ALREADY HELD BY HILTON.  ON DECEMBER 28, HILTON VOTED
ITS WALDORF STOCK TO APPROVE THE MERGER BY THE REQUISITE MAJORITY. 
PRIOR TO THE VOTE, THE HOLDERS OF ABOUT 6% OF THE WALDORF SHARES HAD
FILED WITH WALDORF THEIR WRITTEN OBJECTIONS TO THE MERGER, AND DEMANDED
PAYMENT FOR THEIR STOCK, PURSUANT TO SEC. 91 OF THE NEW YORK STOCK
CORPORATION LAW. 

ON DECEMBER 31, 1953, HILTON FILED THE MERGER AGREEMENT AND THE
CERTIFICATE OF CONSOLIDATION WITH THE SECRETARY OF STATE OF NEW YORK,
THUS CONSUMMATING THE MERGER UNDER NEW YORK LAW.  ON JANUARY 7, 1954,
HILTON MADE A CASH OFFER TO THE DISSENTING WALDORF SHAREHOLDERS, WHICH
THEY REJECTED.  THE DISSENTERS THEN BEGAN APPRAISAL PROCEEDINGS IN THE
NEW YORK COURTS, PURSUANT TO SEC. 21 OF THE NEW YORK STOCK CORPORATION
LAW. 

BETWEEN JANUARY AND MAY 1954, HILTON ASKED ITS CONSULTING FIRM TO
VALUE THE WALDORF STOCK AS OF DECEMBER 27, 1953, THE DAY PRIOR TO THE
WALDORF SHAREHOLDERS' VOTE APPROVING THE MERGER.  HILTON ALSO OBTAINED
THE SERVICES OF LAWYERS, AND OTHER PROFESSIONAL SERVICES, IN CONNECTION
WITH THE APPRAISAL LITIGATION.  THE APPRAISAL PROCEEDING WAS FINALLY
TERMINATED IN JUNE 1955, WHEN THE STATE COURT APPROVED A SETTLEMENT
AGREED TO BY THE PARTIES. 

HILTON DEDUCTED THE FEES PAID TO THE CONSULTING FIRM, AND THE COST
OF LEGAL AND

OTHER PROFESSIONAL SERVICES ARISING OUT OF THE APPRAISAL PROCEEDING, AS
ORDINARY AND NECESSARY BUSINESS EXPENSES UNDER SEC. 162 OF THE INTERNAL
REVENUE CODE OF 1954, 26 U.S.C. 162.  THE COMMISSIONER OF INTERNAL
REVENUE DISALLOWED THE DEDUCTION ON THE GROUND THIT THE PAYMENTS WERE
CAPITAL EXPENDITURES.  HILTON PAID THE TAX AND SUED FOR A REFUND IN THE
DISTRICT COURT.  IN THE COURSE OF THAT SUIT, HILTON CONCEDED, AND THE
COURT HELD, THAT THE PAYMENTS TO THE CONSULTING FIRM FOR THE PRE-MERGER
DETERMINATION OF FAIR VALUE WERE A NONDEDUCTIBLE CAPITAL OUTLAY.  BUT
THE DISTRICT COURT HELD THT THE FEES AND COSTS RELATED TO THE POST
MERGER APPRAISAL PROCEEDING ITSELF WERE DEDUCTIBLE.  285 F.SUPP.  617
(D.C.N.D. IIL.  1968).  THE COURT OF APPEALS AFFIRMED, 410 F.2D 194
(C.A. 7TH CIR.), AND WE GRANTED CERTIORARI, 396 U.S. 954 (1969).  WE
REVERSE. 

THE COURT OF APPEALS RECOGNIZED THAT EXPENSES OF ACQUIRING CAPITAL
ASSETS ARE CAPITAL EXPENDITURES FOR TAX PURPOSES.  HOWEVER, THE COURT
BELIEVED THAT THE "PRIMARY PURPOSE" TEST OF RASSENFOSS V. COMMISSIONER,
158 F.2D 764 (C.A. 7TH CIR. 1946), SHOULD BE APPLIED TO DETERMINE
WHETHER THE APPRAISAL PROCEEDING WAS SUFFICIENTLY RELATED TO THE MERGER
OR THE STOCK ACQUISITION.  NOTING THAT "THE PROCEEDING WAS NOT
NECESSARY TO THE CONSUMMATION OF THE MERGER NOR DID IT FUNCTION
PRIMARILY TO PERMIT THE ACQUISITION OF THE OBJECTING HOLDERS' SHARES,"
THE COURT FOUND THAT "THE PARAMOUNT PURPOSE OF THE APPRAISAL PROCEEDING
WAS TO DETERMINE THE FAIR VALUE OF THE DISSENTING STOCKHOLDERS' SHARES
IN WALDORF."  410 F.2D,AT 197. 

AS WE HELD IN WOODWARD, SUPRA, THE EXPENSES OF LITIGATION THAT ARISE
OUT OF THE ACQUISITION OF A CAPITAL ASSET ARE CAPITAL EXPENSES, QUITE
APART FROM WHETHER THE TAXPAYER'S PURPOSE IN INCURRING THEM IS THE
DEFENSE OR PERFECTION OF TITLE TO PROPERTY.  THE CHIEF DISTINCTION
BETWEEN THIS CASE AND WOODWARD IS THAT UNDER NEW YORK LAW TITLE TO THE
DISSENTERS' STOCK PASSED TO WALDORF AS SOON AS THEY FORMALLY REGISTERED
THEIR DISSENT, PLACING THEM IN THE RELATIONSHIP OF CREDITORS OF THE
COMAPNY FOR THE FAIR VALUE OF THE STOCK, /1/  WHEREAS UNDER IOWA LAW
PASSAGE OF TITLE WAS DELAYED UNTIL AFTER THE PRICE WAS SETTLED IN THE
APPRAISAL PROCEEDING.  /2/ 

THIS IS A DISTINCTION WITHOUT A DIFFERENCE.  THE FUNCTIONAL NATURE
OF THE APPRAISAL REMEDY AS A FORCED PURCHASE OF THE DISSENTERS' STOCK
IS THE SAME, WHETHER TITLE PASSES BEFORE OR AFTER THE PRICE IS
DETERMINED.  DETERMINATION AND PAYMENT OF A PRICE IS NO LESS AN ELEMENT
OF AN ACQUISITION BY PURCHASE THAN IS THE PASSAGE OF TITLE TO THE
PROPERTY.  IN BOTH WOODWARD AND THIS CASE, THE EXPENSES WERE INCURRED
IN DETERMINING WHAT THAT PRICE SHOULD BE, BY LITIGATION RATHER THAN BY
NEGOTIATION.  THE WHOLE PROCESS OF ACQUISITION REQUIRED BOTH LEGAL
OPERATIONS-- FIXING THE PRICE, AND CONVEYING TITLE TO THE PROPERTY--
AND WE CANNOT SEE WHY THE ORDER IN WHICH THOSE OPERATIONS OCCURRED
UNDER APPLICABLE STATE LAW SHOULD MAKE ANY DIFFERENCE IN THE
CHARACTERIZATION OF THE EXPENSES INCURRED FOR THE PARTICULAR FEDERAL
TAX PURPOSES INVOLVED HERE. 

HILTON ALSO ARGUES THAT THE APPRAISAL COSTS CANNOT BE CONSIDERED AS
ITS OWN CAPITAL EXPENDITURES, SINCE WALDORF ACQUIRED THE SHARES (ON
DECEMBER 28) BEFORE THE MERGER (ON DECEMBER 31).  THIS ARGUMENT WOULD
CARRY TOO FAR.  IT IS TRUE THAT TITLE TO THE DISSENTERS' STOCK PASSED T
WALDORF BEFORE THAT CORPORATION WAS MERGED INTO THE SURVIVING
CORPORATION, HILTON.  BUT THE STOCK WAS NEVER PAID FOR BY WALDORF;
RATHER HILTON ASSUMED ALL OF WALDORF'S DEBTS UNDER THE MERGER
AGREEMENT, AND FINALLY PAID FOR THE STOCK AFTER THE APPRAISAL
PROCEEDING WAS SETTLED.  IF WALDORF'S ACQUISITION OF THE MINORITY STOCK
INTEREST WAS NOT A CAPITAL TRANSACTION OF HILTON'S, THEN HILTON'S
PAYMENT FOR THE STOCK ITSELF, AS WELL AS THE EXPENDITURES MADE IN
FIXING THAT PRICE, WOULD LOSE ITS CHARACTER AS A CAPITAL EXPENDITURE OF
HILTON'S.  BUT HILTON CONCEDES THAT THE PAYMENT FOR THE STOCK WAS A
CAPITAL EXPENDITURE ON ITS PART.  THE DEBTS THAT HILTON INHERITED FROM
WALDORF RETAINED THEIR CAPITAL OR ORDINARY CHARACTER THROUGH THE
MERGER, AND SO DID THE EXPENDITURES FOR FIXING THE AMOUNT OF THOSE
DEBTS. 

IN SHORT, THE DISTINCTIONS URGED BETWEEN THIS CASE AND WOODWARD ARE
NOT AVAILING.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND
THE CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS
THE COMPLAINT. 

IT IS SO ORDERED. 

/1/  SECTION 91, SUBD. 9, OF THE NEW YORK STOCK CORPORATION LAW
PROVIDES THAT A CORPORATE CONSOLIDATION BECOMES EFFECTIVE UPON THE
FILING OF THE REQUISITE CERTIFICATE.  SECTION 21, SUBD. 6, OF THE SAME
LAW PROVIDES THAT AS OF THE TIME OF A MERGER VOTE, A DISSENTING
SHAREHOLDER LOSES ALL RIGHTS AS SUCH, EXCEPT THE RIGHT TO RECEIVE
PAYMENT FOR THE VALUE OF HIS SHARES. 

/2/  IOWA CODE SEC. 491.25 (1966) PROVIDES THAT MAJORITY
SHAREHOLDERS VOTING FOR RENEWAL "SHALL HAVE THREE YEARS FROM THE DATE
SUCH ACTION FOR RENEWAL WAS TAKEN IN WHICH TO PURCHASE AND PAY FOR THE
STOCK VOTING AGAINST SUCH RENEWAL . . . . "  THERE IS NO INTIMATION IN
THE STATUTE ITSELF, NOR IN IOWA CASES CONSTRUING IT CITED BY
PETITIONERS IN WOODWARD, SUPRA, THAT DISSENTERS LOSE ANY OF THEIR
RIGHTS AS SHAREHOLDERS, OR THAT TITLE PASSES TO THE MAJORITY
SHAREHOLDERS, PRIOR TO THE ACTUAL PURCHASE OF THE DISSENTERS' SHARES. 

ASSISTANT ATTORNEY GENERAL WALTERS ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, MATTHEW
J. ZINN, GILBERT E. ANDREWS, AND STUART A. SMITH. 

MILTON A. LEVENFELD ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE BURTON W. KANTER AND RICHARD M. KATES. 
..END :


















STANDARD INDUSTRIES V. TIGRETT, INC., 397 U.S. 586 


       STANDARD INDUSTRIES, INC. V. TIGRETT INDUSTRIES, INC., ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 445.  ARGUED MARCH 2, 1970-- DECIDED APRIL 20, 1970 


411 F.2D 1218, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENTS ARE AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE BLACK, WITH THOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

IN THIS CASE RESPONDENTS SUED PETITIONER FOR PAYMENTS ALLEGED TO BE
DUE UNDER A PATENT-LICENSING AGREEMENT.  AT TRIAL AND ON APPEAL
PETITIONER DEFENDED PRIMARILY ON THE GROUND THAT ITS PRODUCT DID NOT
INVOLVE ANY USE OF THE RESPONDENT'S PATENT.  PETITIONER DID NOT AT ANY
TIME ATTACK THE VALIDITY OF THE PATENT ITSELF, AND APPARENTLY CONCEDED
THAT CONTROLLING LAW PREVENTED IT FROM DOING SO.  THE DISTRICT COURT
FOUND THAT THE PRODUCT DID UTILIZE THE PATENTED INVENTION AND AWARDED
DAMAGES.  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED IN AN
OPINION DELIVERED MAY 27, 1969, 411 F.2D 1218. 

ON JUNE 16, 1969, THIS COURT DECIDED IN LEAR, INC., V. ADKINS, 395
U.S. 653, THAT A PATENT LICENSEE COULD ATTACK THE VALIDITY OF A
PATENT.  THAT CASE SPECIFICALLY OVERRULED THE PATENT-LICENSEE ESTOPPEL
DOCTRINE APPLIED IN AUTOMATIC RADIO MFG. CO. V. HAZELTINE RESEARCH,
INC., 339 U.S. 827 (1950), A DOCTRINE THAT WAS THE CONTROLLING LAW AT
ALL TIMES IN THE PROCEEDINGS BELOW.  PETITIONER NOW SEEKS TO ATTACK THE
VALIDITY OF THE PATENT, BUT RESPONDENTS ARGUE THAT SINCE THE ISSUE WAS
NEVER RAISED BELOW, IT CANNOT NOW BE LITIGATED. 

THE FAILURE TO ASSERT INVALIDITY BELOW CANNOT, IN THESE
CIRCUMSTANCES, BE DEEMED A WAIVER OF THAT DEFENSE.  THE COURT HAS
RECOGNIZED THAT TO BE EFFECTIVE A WAIVER MUST BE "AN INTENTIONAL
RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE," JOHNSON
V. ZERBST, 304 U.S. 458, 464 (1938), AND WE HAVE FREQUENTLY ALLOWED
PARTIES TO RAISE ISSUES FOR THE FIRST TIME ON APPEAL WHEN THERE HAS
BEEN A SIGNIFICANT CHANGE IN THE LAW SINCE THE TRIAL.  THIS PRINCIPLE
HAS MOST OFTEN BEEN APPLIED IN PROCEEDINGS RELATING TO CRIMINAL
PROSECUTIONS, /1/  BUT IT HAS ALSO BEEN INVOKED IN PURELY CIVIL CASES. 
/2/  THE PRINCIPLE HAS NOT BEEN LIMITED TO CONSTITUTIONAL ISSUES, AND
THE COURT HAS PERMITTED CONSIDERATION ON APPEAL OF STATUTORY ARGUMENTS
NOT PRESENTED BELOW.  /3/  IN DECIDING WHETHER SUCH NEW ARGUMENTS CAN
BE CONSIDERED, WE HAVE PRIMARILY CONSIDERED THREE FACTORS:  FIRST,
WHETHER THERE HAS BEEN A MATERIAL CHANGE IN THE LAW; SECOND, WHETHER
ASSERTION OF THE ISSUE EARLIER WOULD HAVE BEEN FUTILE; AND THIRD,
WHETHER AN IMPORTNAT PUBLIC INTEREST IS SERVED BY ALLOWING
CONSIDERATION OF THE ISSUE.  IT IS CLEAR TO ME THAT ALL THESE CRITERIA
ARE MET IN THIS CASE. 

UNDOUBTEDLY OUR DECISION IN LEAR WAS A MAJOR CHANGE IN THE FIELD OF
PATENT LAW.  THE COURT IMPLICITLY RECOGNIZED THIS FACT BY OVERRULING
THE ESTOPPEL HOLDING IN AUTOMATIC RADIO.  IT IS ALSO CLEAR THAT THE
TRIAL COURT WAS SATISFIED THAT APPLICABLE LAW PRECLUDED THE ASSERTION
OF INVALIDITY BY PATENT LICENSEES /4/  AND THUS EARLIER ARGUMENT ON THE
POINT WOULD HAVE BEEN FUTILE.  FINALLY, AND MOST IMPORTANTLY, AN
OVERRIDING PUBLIC INTEREST WOULD BE SERVED BY ALLOWING PETITIONER TO
CHALLENGE THE VALIDITY OF THIS PATENT.  LAST TERM WE UNANIMOUSLY HELD
THAT "THE PUBLIC'S INTEREST IN THE ELIMINATION OF SPECIOUS PATENTS
WOULD BE SIGNIFICANTLY PREJUDICED IF THE RETROACTIVE EFFECT OF (LEAR)
WERE LIMITED IN ANY WAY."  LEAR, SUPRA, AT 674 N. 19.  I DO NOT
UNDERSTAND HOW TODAY'S DECISION CAN BE RECONCILED WITH THAT STATEMENT. 
ALTHOUGH ANALYTICALLY THIS CASE MAY PRESENT A QUESTION OF WAIVER AND
NOT RETROACTIVITY, THE PUBLIC INTEREST THAT THE COURT FELT REQUIRED
FULL RETROACTIVITY IN LEAR IS AN EQUALLY COMPELLING REASON FOR ALLOWING
PETITIONER'S ATTACK NOW IN SPITE OF THE CONCESSIONS BELOW.  I WOULD
VACATE THE JDUGMENTS BELOW AND REMAND THE CASE TO THE DISTRICT COURT
FOR A DETERMINATION OF THE VALIDITY OF THE PATENT IN ISSUE. 

/1/  SEE WHITE V. MARYLAND, 373 U.S. 59 (1963); CF. MCCONNELL V.
RHAY, 393 U.S. 2 (1968); TEHAN V. SHOTT, 382 U.S. 406 (1966);
LINKLETTER V. WALKER, 381 U.S. 618, 622-629 (1965); GRIFFIN V.
CALIFORNIA, 380 U.S. 609 (1965). 

/2/  CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 142-145 (OPINION
OF HARLAN, J.), 172 N. 1 (SEPARATE OPINION OF BRENNAN, J.)  (1967);
ROSENBLATT V. BAER, 383 U.S. 75 (1966); UEBERSEE FINANZ-KORP.  V.
MCGRATH, 343 U.S. 205, 213 (1952); HORMEL V. HELVERING, 312 U.S. 552,
556-557 (1941). 

/3/  IN HORMEL V. HELVERING, SUPRA, THE COURT ALLOWED THE
COMMISSINER OF INTERNAL REVENUE TO RELY ON SEC. 22(A) OF THE REVENUE
ACT OF 1934 ALTHOUGH HIS ARGUMENT BEFORE THE BOARD OF TAX APPEALS HAD
RESTED SOLELY ON SECS. 166 AND 167.  WE DID SO BECAUSE OF THE
INTERVENING DECISION IN HELVERING V. CLIFFORD, 309 U.S. 331 (1940). 

/4/  APP. 52A, 129A-3. 

I. WALTON BADER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS MAXIMILIAN BADER. 

RALPH W. KALISH ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN, AND RICHARD H. STERN. 

SIDNEY NEUMAN ARGUED THE CAUSE FOR THE AMERICAN PATENT LAW
ASSOCIATION AS AMICUS CURIAE.  ON THE BRIEF WERE FRANK L. NEUHAUSER,
JOHN F. WITHERSPOON, ROBERT E. LEBLANC, WILLIAM L. MATHIS, AND HENRY
SHUR. 
..END :







SNYDER V. WARE, 397 U.S. 589 


       SNYDER V. WARE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF LOUISIANA

        NO. 1225.  DECIDED APRIL 20, 1970 


AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

J. MINOS SIMON FOR APPELLANT. 
..END :











JACKSON V. DEPARTMENT OF PUBLIC WELFARE OF FLORIDA, 397 U.S. 589 


       JACKSON ET AL. V. DEPARTMENT OF PUBLIC WELFARE OF FLORIDA ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF FLORIDA

        NO. 471, MISC.  DECIDED APRIL 20, 1970 


VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR
RECONSIDERATION IN LIGHT OF GOLDBERG V. KELLY, ANTE, P. 254; FED. RULE
CIV. PROC. 23; AND TO DETERMINE WHETHER THE CASE IS MOOT. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE STEWART
DESSENT. 

HOWARD W. DIXON FOR APPELLANTS 

EARL FAIRCLOTH, ATTORNEY GENERAL OF FLORIDA, T. T. TURNBULL AND
MICHAEL SCHWARTZ, ASSISTANT ATTORNEYS GENERAL, AND S. STROME MAXWELL
FOR APPELLEES. 
..END :





















GIAGNOCAVO V. BUCKS COUNTY COMMISSIONERS, 397 U.S. 590 


       GIAGNOCAVO V. BUCKS COUNTY COMMISSIONERS

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA

        NO. 1239.  DECIDED APRIL 20, 1970 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

PETER A. GLASCOTT FOR APPELLEES. 
..END :










SPARTAN'S INDUSTRIES, INC. V. TEXAS, 397 U.S. 590 


       SPARTAN'S INDUSTRIES, INC., ET AL. V. TEXAS

   APPEAL FROM THE SUPREME COURT OF TEXAS

        NO. 1255.  DECIDED APRIL 20, 1970 


447 S.W.2D 407, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

WILLIAM H. ALLEN, WILLIAM H. BLOCH, GEORGE A. KAMPMANN, OSCAR SPITZ,
HAROLD B. BERMAN, AND JAY S. FICHTNER FOR APPELLANTS. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, ALFRED WALKER, EXECUTIVE ASSISTANT ATTORNEY
GENERAL, AND ROBERT C. FLOWERS AND MONROE CLAYTON, ASSISTANT ATTORNEYS
GENERAL, FOR APPELLEE. 
..END :







SUNDACO, INC. V. TEXAS, 397 U.S. 591 


       SUNDACO, INC., ET AL. V. TEXAS ET AL.

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, ELEVENTH

        SUPREME JUDICIAL DISTRICT

        NO. 1271.  DECIDED APRIL 20, 1970 


445 S.W.2D 606, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

WILLIAM H. ALLEN, HAROLD B. BERMAN, AND JAY S. FICHTNER FOR
APPELLANTS. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL, NOLA WHITE, FIRST ASSISTANT
ATTORNEY GENERAL, ALRED WALKER, EXECUTIVE ASSISTANT ATTORNEY GENERAL,
AND ROBERT C. FLOWERS AND MONROE CLAYTON, ASSISTANT ATTORNEYS GENERAL,
FOR APPELLEE THE STATE OF TEXAS. 
..END :





EUGENE SAND & GRAVEL, INC. V. LOWE, 397 U.S. 591 


       EUGENE SAND & GRAVEL, INC. V. LOWE ET AL.

 APPEAL FROM THE SUPREME COURT OF OREGON

        NO. 1335.  DECIDED APRIL 20, 1970 


254 ORE.  518, 459 P.2D 222, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED, IT APPEARING THAT THE JUDGMENT BELOW RESTS
UPON AN ADEQUATE STATE GROUND. 

JOHN E. JAQUA FOR APPELLANT. 
..END :













GABLE, BOOK SALES CO. V. JENKINS, 397 U.S. 592 


       GABLE, DBA BOOK SALES CO. V. JENKINS

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

  NORTHERN DISTRICT OF GEORGIA

        NO. 1049.  DECIDED APRIL 20, 1970 


AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

WESLEY R. ASINOT FOR APPELLANT. 

HENRY L. BOWDEN FOR APPELLEE. 
..END :



HACKNEY V. MACHADO, 397 U.S. 593 


       HACKNEY, COMMISSIONER OF PUBLIC WELFARE OF TEXAS, ET AL. V.

           MACHADO ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

 DISTRICT OF TEXAS

        NO. 553.  DECIDED APRIL 20, 1970 


299 F.SUPP.  644, VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR RECONSIDERATION IN LIGHT OF GOLDBERG V. KELLY, ANTE, P. 254. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE STEWARD
DISSENT. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, HAWTHORNE PHILLIPS, EXECUTIVE ASSISTANT
ATTORNEY GENERAL, AND J. C. DAVIS AND JOHN H. BANKS, ASSISTANT
ATTORNEYS GENERAL, FOR APPELLANTS. 

C. STANLEY BANKS, JR., FOR APPELLEES. 
..END :





















UNITED STATES V. SIMON, 397 U.S. 594 


       UNITED STATES V. SIMON

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF WISCONSIN

        NO. 742.  DECIDED APRIL 20, 1970 


301 F.SUPP.  859, VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN WITH
INSTRUCTIONS TO REINSTATE COUNT 1 OF THE INDICTMENT, CHARGING A
VIOLATION OF 26 U.S.C. 4742(A). 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND MERVYN HAMBURG FOR THE UNITED STATES. 

JACK MCMANUS FOR APPELLEE. 
..END :





MONTGOMERY V. KAISER, 397 U.S. 595 


       MONTGOMERY, DIRECTOR, CALIFORNIA DEPARTMENT OF SOCIAL

           WELFARE, ET AL. V. KAISER ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

     NORTHERN DISTRICT OF CALIFORNIA

        NO. 828.  DECIDED APRIL 20, 1970 


VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA FOR
FURTHER CONSIDERATION IN LIGHT OF DANDRIDGE V. WILLIAMS, ANTE, P. 471. 

MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR. JUSTICE MARSHALL
ARE OF THE OPINION THAT THE JUDGMENT SHOULD BE AFFIRMED. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND ELIZABETH
PALMER, DEPUTY ATTORNEY ATTORNEY GENERAL, FOR APPELLANTS. 

THOMAS L. FIKE FOR APPELLEES. 
..END :























SANTANA V. TEXAS, 397 U.S. 596 


       SANTANA V. TEXAS

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           TEXAS

       NO. 1002.  DECIDED APRIL 20, 1970 


CERTIORARI GRANTED; 444 S.W.2D 614, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF TEXAS FOR
FURTHER CONSIDERATION IN LIGHT OF IN RE WINSHIP, ANTE, P. 358. 

THE CHIEF JUSTICE AND MR. JUSTICE STEWART DISSENT FOR THE REASONS
SET FORTH IN THE DISSENTING OPINION OF THE CHIEF JUSTICE IN IN RE
WINSHIP, ANTE, P. 375.  MR. JUSTICE BLACK DISSENTS FOR THE REASONS SET
FORTH IN HIS DISSENTING OPINION IN IN RE WINSHIP, ANTE, P. 377. 

H. ERNEST GRIFFITH FOR PETITIONER. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, ALFRED WALKER, EXECUTIVE ASSISTANT ATTORNEY
GENERAL, AND ROBERT C. FLOWERS AND MONROE CLAYTON, ASSISTANT ATTORNEYS
GENERAL, FOR RESPONDENT. 
..END :






















RICHARD S. V. CITY OF NEW YORK, 397 U.S. 597 


       RICHARD S. V. CITY OF NEW YORK

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 1478, MISC.  DECIDED APRIL 20, 1970 


VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS OF
NEW YORK FOR FURTHER CONSIDERATION IN LIGHT OF IN RE WINSHIP, ANTE, P.
358. 

THE CHIEF JUSTICE AND MR. JUSTICE STEWART DISSENT FOR THE REASONS
SET FORTH IN THE DISSENTING OPINION OF THE CHIEF JUSTICE IN IN RE
WINSHIP, ANTE, P. 375.  MR. JUSTICE BLACK DISSENTS FOR THE REASONS SET
FORTH IN HIS DISSENTING OPINION IN IN RE WINSHIP, ANTE, P. 377. 

JONATHAN A. WEISS FOR APPELLANT. 

J. LEE RANKIN, STANLEY BUCHSBAUM, AND ROBERT T. HARTMANN FOR
APPELLEE. 
..END :



WALLER V. FLORIDA, 397 U.S. 387 


       WALLER V. FLORIDA

        CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA,

           SECOND DISTRICT

        NO. 24.  ARGUED NOVEMBER 13, 1969-- DECIDED APRIL 6, 1970 


PETITIONER WAS CONVICTED BY THE ST. PETERSBURG MUNICIPAL COURT OF
VIOLATING TWO ORDINANCES, DESTRUCTION OF CITY PROPERTY AND DISORDERLY
BREACH OF THE PEACE, AND SENTENCED TO 180 DAYS IN JAIL.  THEREAFTER, AN
INFORMATION, CONCEDEDLY BASED ON THE SAME ACTS THAT LED TO THE PREVIOUS
CONVICTIONS, WAS FILED BY THE STATE OF FLORIDA CHARGING PETITIONER WITH
GRAND LARCENY.  THE STATE SUPREME COURT DENIED A WRIT OF PROHIBITION TO
PREVENT THE SECOND TRIAL ON PETITIONER'S CLAIM OF DOUBLE JEOPARDY. 
PETITIONER WAS TRIED AND CONVICTED OF GRAND LARCENY.  THE DISTRICT
COURT OF APPEAL, HOLDING THAT THERE WOULD BE NO BAR TO THE PROSECUTION
IN THE STATE COURT "EVEN IF A PERSON HAS BEEN TRIED IN A MUNICIPAL
COURT FOR THE IDENTICAL OFFENSE WITH WHICH HE IS CHARGED IN A STATE
COURT," AFFIRMED THE GRAND LARCENY CONVICTION.  HELD:  THE STATE OF
FLORIDA AND ITS MUNICIPALITIES ARE NOT SEPARATE SOVEREIGN ENTITIES EACH
ENTITLED TO IMPOSE PUNISHMENT FOR THE SAME ALLEGED CRIME, AS THE
JUDICIAL POWER OF THE MUNICIPAL COURTS AND THE STATE COURTS OF GENERAL
JURISDICTION SPRINGS FROM THE SAME ORGANIC LAW, AND THE DISTRICT DOURT
OF APPEAL ERRED IN HOLDING THAT A SECOND TRIAL IN A STATE COURT FOR THE
IDENTICAL OFFENSE FOR WHICH A PERSON WAS TRIED IN A MUNICIPAL COURT DID
NOT CONSTITUTE DOUBLE JEOPARDY.  PP. 390-395. 

213 SO.2D 623, VACATED AND REMANDED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

WE GRANTED THE WRIT IN THIS CASE TO REVIEW A NARROW QUESTION WHICH
CAN BEST BE TREATED ON THE BASIS OF THE FACTS AS STATED BY THE DISTRICT
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT, AND THE HOLDING OF THAT
COURT.  PETITIONER WAS ONE OF A NUMBER OF PERSONS WHO REMOVED A CANVAS
MURAL WHICH WAS AFFIXED TO A WALL INSIDE THE CITY HALL OF ST.
PETERSBURG, FLORIDA.  AFTER THE MURAL WAS REMOVED, THE PETITIONER AND
OTHERS CARRIED IT THROUGH THE STREETS OF ST. PETERSBURG UNTIL THEY WERE
CONFRONTED BY POLICE OFFICERS.  AFTER A SCUFFLE, THE OFFICERS RECOVERED
THE MURAL, BUT IN A DAMAGED CONDITION. 

THE PETITIONER WAS CHARGED BY THE CITY OF ST. PETERSBURG WITH THE
VIOLATION OF TWO ORDINANCES:  FIRST, DESTRUCTION OF CITY PROPERTY; AND
SECOND, DISORDERLY BREACH OF THE PEACE.  HE WAS FOUND GUILTY IN THE
MUNICIPAL COURT ON BOTH COUNTS, AND A SENTENCE OF 180 DAYS IN THE
COUNTY JAIL WAS IMPOSED. 

THEREAFTER AN INFORMATION WAS FILED AGAINST THE PETITIONER BY THE
STATE OF FLORIDA CHARGING HIM WITH GRAND LARCENY.  IT IS CONCEDED THAT
THIS INFORMATION WAS BASED ON THE SAME ACTS OF THE PETITIONER AS WERE
INVOLVED IN THE VIOLATION OF THE TWO CITY ORDINANCES. 

BEFORE THIS TRIAL IN THE CIRCUIT COURT ON THE FELONY CHARGE,
PETITIONER MOVED IN THE SUPREME COURT OF FLORIDA FOR A WRIT OF
PROHIBITION TO PREVENT THE SECOND TRIAL, ASSERTING THE CLAIM OF DOUBLE
JEOPARDY AS A BAR.  RELIEF WAS DENIED WITHOUT OPINION.  WALLER V.
CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS
COUNTY, 201 SO.2D 554 (1967).  THEREAFTER PETITIONER WAS TRIED IN THE
CIRCUIT COURT OF FLORIDA BY A JURY AND WAS FOUND GUILTY OF THE FELONY
OF GRAND LARCENY.  AFTER VERDICT IN THE STATE COURT, HE WAS SENTENCED
TO SIX MONTHS TO FIVE YEARS LESS 170 DAYS OF THE 180-DAY SENTENCE
PREVIOUSLY IMPOSED BY THE MUNICIPAL COURT OF ST. PETERSBURG, FLORIDA. 

ON APPEAL, THE DISTRICT COURT OF APPEAL OF FLORIDA CONSIDERED AND
REJECTED PETITIONER'S CLAIM THAT HE HAD TWICE BEEN PUT IN JEOPARDY
BECAUSE PRIOR TO HIS CONVICTION OF GRAND LARCENY, HE HAD BEEN CONVICTED
BY THE MUNICIPAL COURT OF AN INCLUDED OFFENSE OF THE CRIME OF GRAND
LARCENY.  WALLER V. STATE, 213 SO.2D 623 (1968).  THE OPINION OF THE
DISTRICT COURT OF APPEAL FIRST EXPLICITLY ACKNOWLEDGED THAT THE CHARGE
ON WHICH THE STATE COURT ACTION RESTED "WAS BASED ON THE SAME ACTS OF
THE APPELLANT AS WERE INVOLVED IN THE VIOLATION OF THE TWO CITY
ORDINANCES."  THEN, IN REJECTING WALLER'S CLAIM OF DOUBLE JEOPARDY, THE
COURT SAID: 

     "ASSUMING BUT NOT HOLDING THAT THE VIOLATIONS OF THE MUNICIPAL

  ORDINANCES WERE INCLUDED OFFENSES OF THE CRIME OF GRAND LARCENY,

  THE APPELLANT NEVERTHELESS HAS NOT TWICE BEEN PUT IN JEOPARDY,

  BECAUSE EVEN IF A PERSON HAS BEEN TRIED IN A MUNICIPAL COURT FOR

THE IDENTICAL OFFENSE WITH WHICH HE IS CHARGED IN A STATE COURT,

  THIS WOULD NOT BE A BAR TO THE PROSECUTION OF SUCH PERSON IN THE

  PROPER STATE COURT.  THIS HAS BEEN THE LAW OF THIS STATE SINCE

  1894, AS IS ESTABLISHED IN THE CASE OF THEISEN V. MCDAVID, 34

  FLA. 440, 16 SO. 321 . . . . THE FLORIDA SUPREME COURT HAS

  FOLLOWED THE THEISEN CASE, SUPRA, THROUGHOUT THE YEARS AND AS

  RECENTLY AS JULY 17, 1968, IN HILLIARD V. CITY OF GAINESVILLE,

  FLA., 213 SO.2D 689, REAFFIRMED THE THEISEN CASE AND STATED AS

  FOLLOWS: 

     "'THIS DOUBLE JEOPARDY ARGUMENT HAS LONG BEEN SETTLED CONTRARY

  TO THE CLAIMS OF THE PETITIONER.  WE SEE NO REASON TO RECEDE FROM

  OUR ESTABLISHED PRECEDENT ON THE SUBJECT.  LONG AGO IT WAS

  DECIDED THAT AN ACT COMMITTED WITHIN MUNICIPAL LIMITS MAY BE

  PUNISHED BY CITY ORDINANCE EVEN THOUGH THE SAME ACT IS ALSO

  PROSCRIBED AS A CRIME BY A STATE STATUTE.  AN OFFENDER MAY BE

  TRIED FOR THE MUNICIPAL OFFENSE IN THE CITY COURT AND FOR THE

  CRIME IN THE PROPER STATE COURT.  CONVICTION OR ACQUITTAL IN

  EITHER DOES NOT BAR PROSECUTION IN THE OTHER.'" 

A PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
WAS DENIED, WALLER V. STATE, 221 SO.2D 749 (1968).  IT IS REASONABLE TO
ASSUME THAT THE FLORIDA TRIAL COURT AND THE DISTRICT COURT OF APPEAL
CONSIDERED THEMSELVES BOUND BY THE DOCTRINE OF THEISEN V. MCDAVID, 34
FLA. 440, 16 SO. 321, WHICH AT THAT TIME WAS BEING REASSERTED IN
HILLIARD V. CITY OF GAINESVILLE, 213 SO.2D 689, AND HAD BEEN REAFFIRMED
BY THE FLORIDA SUPREME COURT'S DENIAL OF A WRIT OF PROHIBITION SOUGHT
BY WALLER ON THE CLAIM OF DOUBLE JEOPARDY. 

WE ACT ON THE STATEMENT OF THE DISTRICT COURT OF APPEAL THAT THE
SECOND TRIAL ON THE FELONY CHARGE BY INFORMATION "WAS BASED ON THE SAME
ACTS OF THE APPELLANT AS WERE INVOLVED IN THE VIOLATION OF THE TWO CITY
ORDINANCES" AND ON THE ASSUMPTION THAT THE ORDINANCE VIOLATIONS WERE
INCLUDED OFFENSES OF THE FELONY CHARGE.  /1/  WHETHER IN FACT AND LAW
PETITIONER COMMITTED SEPARATE OFFENSES WHICH COULD SUPPORT SEPARATE
CHARGES WAS NOT DECIDED BY THE FLORIDA COURTS, NOR DO WE REACH THAT
QUESTION.  WHAT IS BEFORE US IS THE ASSERTED POWER OF THE TWO COURTS
WITHIN ONE STATE TO PLACE PETITIONER ON TRIAL FOR THE SAME ALLEGED
CRIME. 

IN BENTON V. MARYLAND, 395 U.S. 784 (1969), THIS COURT DECLARED THE
DOUBLE JEOPARDY PROVISIONS OF THE FIFTH AMENDMENT APPLICABLE TO THE
STATES, OVERRULING PALKO V. CONNECTICUT, 302 U.S. 319 (1937).  HERE, AS
IN NORTH CAROLINA V. PEARCE, 395 U.S. 711 (1969), BENTON SHOULD BE
APPLIED TO TEST PETITIONER'S CONVICTION, ALTHOUGH WE NEED NOT AND DO
NOT DECIDE WHETHER EACH OF THE SEVERAL ASPECTS OF THE CONSTITUTIONAL
GUARANTEE AGAINST DOUBLE JEOPARDY REQUIRES SUCH APPLICATION IN SIMILAR
PROCEDURAL CIRCUMSTANCES.  /2/ 

FLORIDA DOES NOT STAND ALONE IN TREATING MUNICIPALITIES AND THE
STATE AS SEPARATE SOVEREIGN ENTITIES, EACH CAPABLE OF IMPOSING
PUNISHMENT FOR THE SAME ALLEGED CRIME.  /3/  HERE, RESPONDENT STATE OF
FLORIDA SEEKS TO JUSTIFY THIS SEPARATE SOVEREIGNTY THEORY BY ASSERTING
THAT THE RELATIONSHIP BETWEEN A MUNICIPALITY AND THE STATE IS ANALOGOUS
TO THE RELATIONSHIP BETWEEN A STATE AND THE FEDERAL GOVERNMENT. 
FLORIDA'S CHIEF RELIANCE IS PLACED UPON THIS COURT'S HOLDINGS IN
BARTKUS V. ILLINOIS, 359 U.S. 121 (1959), AND ABBATE V. UNITED STATES,
359 U.S. 187 (1959), WHICH PERMITTED SUCCESSIVE PROSECUTIONS BY THE
FEDERAL AND STATE GOVERNMENTS AS SEPARATE SOVEREIGNS.  ANY SUCH READING
OF ABBATE IS FORECLOSED.  IN ANOTHER CONTEXT, BUT RELEVANT HERE, THIS
COURT NOTED-- 

     "POLITICAL SUBDIVISIONS OF STATES-- COUNTIES, CITIES, OR

  WHATEVER-- NEVER WERE AND NEVER HAVE BEEN CONSIDERED AS SOVEREIGN

 ENTITIES.  RATHER, THEY HAVE BEEN TEADITIONALLY REGARDED AS

  SUBORDIANTE GOVERNMENTAL INSTRUMENTALITIES CREATED BY THE STATE

  TO ASSIST IN THE CARRYING OUT OF STATE GOVERNMENTAL FUNCTIONS." 

  REYNOLDS V. SIMS, 377 U.S. 533, 575 (1964). 

FLORIDA HAS RECOGNIZED THIS UNITY IN ITS CONSTITUTION.  ARTICLE
VIII, SEC. 2, OF THE FLORIDA CONSTITUTION (1968 REVISION) CONTAINS A
GRANT OF POWER TO THE FLORIDA LEGISLATURE RESPECTING MUNICIPALITIES:
/4/ 

     "(A) ESTABLISHMENT.  MUNICIPALITIES MAY BE ESTABLISHED OR

  ABOLISHED AND THEIR CHARTERS AMENDED PURSUANT TO GENERAL OR

  SPECIAL LAW.  . . . 

     "(B) POWERS.  MUNICIPALITIES SHALL HAVE GOVERNMENTAL,
CORPORATE

  AND PROPRIETARY POWERS TO ENABLE THEM TO CONDUCT MUNICIPAL

  GOVERNMENT, PERFORM MUNICIPAL FUNCTIONS AND RENDER MUNICIPAL

  SERVICES . . . . "

MOREOVER, ART. V, SEC. 1, OF THE FLORIDA CONSTITUTION (1885), WHICH
DOES NOT APPEAR TO HAVE BEEN CHANGED IN THE 1968 CONSTITUTIONAL
REVISION, DECLARES: 

     "(THE JUDICIAL POWER OF THE STATE OF FLORIDA IS VESTED IN A

  SUPREME COURT . . . AND SUCH OTHER COURTS, INCLUDING MUNICIPAL

  OCURTS . . . AS THE LEGISLATURE MAY FROM TIME TO TIME ORDAIN AND

  ESTABLISH." 

THESE PROVISIONS OF THE FLORIDA CONSTITUTION DEMONSTRATE THAT THE
JUDICIAL POWER TO TRY PETITIONER ON THE FIRST CHARGES IN MUNICIPAL
COURT SPRINGS FROM THE SAME ORGANIC LAW THAT CREATED THE STATE COURT OF
GENERAL JURISDICTION IN WHICH PETITIONER WAS TRIED AND CONVICTED FOR A
FELONY.  ACCORDINGLY, THE APT ANALOGY TO THE RELATIONSHIP BETWEEN
MUNICIPAL AND STATE GOVERNMENTS IS TO BE FOUND IN THE RELATIONSHIP
BETWEEN THE GOVERNMENT OF A TERRITORY AND THE GOVERNMENT OF THE UNITED
STATES.  THE LEGAL CONSEQUENCE OF THAT RELATIONSHIP WAS SETTLED IN
GRAFTON V. UNITED STATES, 206 U.S. 333 (1907), WHERE THIS COURT HELD
THAT A PROSECUTION IN A COURT OF THE UNITED STATES IS A BAR TO A
SUBSEQUENT PROSECUTION IN A TERRITORIAL COURT, SINCE BOTH ARE ARMS OF
THE SAME SOVEREIGN.  /5/  IN GRAFTON A SOLDIER IN THE UNITED STATES
ARMY HAD BEEN ACQUITTED BY A GENERAL COURT-MARTIAL CONVENED IN THE
PHILIPPINE ISLANDS OF THE ALLEGED CRIME OF FELONIOUSLY KILLING TWO
MEN.  SUBSEQUENTLY, A CRIMINAL INFORMATION IN THE NAME OF THE UNITED
STATES WAS FILED IN A PHILIPPINE COURT WHILE THOSE ISLANDS WERE A
FEDERAL TERRITORY, CHARGING THE SOLDIER WITH THE SAME OFFENSE COMMITTED
IN VIOLATION OF LOCAL LAW.  WHEN PHILIPPINE COURTS UPHELD A CONVICTION
AGAINST A DOUBLE JEOPARDY CHALLENGE, THIS COURT REVERSED, RESTING UPON
THE SINGLE-SOVEREIGN RATIONALE AND DISTINGUISHING CASES LIKE FOX V.
OHIO, 5 HOW.  410 (1847), WHICH SANCTIONED SUCCESSIVE PROSECUTIONS BY
STATE AND FEDERAL GOVERNMENT FOR THE SAME ACTS: 

"AN OFFENSE AGAINST THE UNITED STATES CAN ONLY BE PUNISHED UNDER ITS
AUTHORITY AND IN THE TRIBUNALS CREATED BY ITS LAWS; WHEREAS, AN OFFENSE
AGAINST A STATE CAN BE PUNISHED ONLY BY ITS AUTHORITY AND IN ITS
TRIBUNALS.  THE SAME ACT . . . MAY CONSTITUTE TWO OFFENSES, ONE AGAINST
THE UNITED STATES AND THE OTHER AGAINST A STATE.  BUT THESE THINGS
CANNOT BE PREDICATED OF THE RELATIONS BETWEEN THE UNITED STATES, WHILE
THE GOVERNMENT OF THE PHILIPPINES OWES ITS EXISTENCE WHOLLY TO THE
UNITED STATES, AND ITS JUDICIAL TRIBUNALS EXERT ALL THEIR POWERS BY
AUTHORITY OF THE UNITED STATES.  THE JURISDICTION AND AUTHORITY OF THE
UNITED STATES OVER THAT TERRITORY AND ITS INHABITANTS, FOR ALL
LEGITIMATE PURPOSES OF GOVERNMENT, IS PARAMOUNT.  SO THAT THE CASES
HOLDING THAT THE SAME ACTS COMMITTED IN A STATE OF THE UNION MAY
CONSTITUTE AN OFFENSE AGAINST THE UNITED STATES AND ALSO A DISTINCT
OFFENSE AGAINST THE STATE, DO NOT APPLY HERE, WHERE THE TWO TRIBUNALS
THAT TRIED THE ACCUSED EXERT ALL THEIR POWERS UNDER AND BY AUTHORITY OF
THE SAME GOVERNMENT-- THAT OF THE UNITED STATES."  206 U.S., AT 354
355. 

THUS GRAFTON, NOT FOX V. OHIO, SUPRA, OR ITS PROGENY, BARTKUS V.
ILLINOIS, SUPRA, OR ABBATE V. UNITED STATES, SUPRA, CONTROLS, AND WE
HOLD THAT ON THE BASIS OF THE FACTS UPON WHICH THE FLORIDA DISTRICT
COURT OF APPEAL RELIED PETITIONER COULD NOT LAWFULLY BE TRIED BOTH BY
THE MUNICIPAL GOVERNMENT AND BY THE STATE OF FLORIDA.  IN THIS CONTEXT
A "DUAL SOVEREIGNTY" THEORY IS AN ANACHRONISM, AND THE SECOND TRIAL
CONSTITUTED DOUBLE JEOPARDY VIOLATIVE OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION. 

WE DECIDE ONLY /6/  THAT THE FLORIDA COURTS WERE IN ERROR TO THE
EXTENT OF HOLDING THAT-- 

"EVEN IF A PERSON HAS BEEN TRIED IN A MUNICIPAL COURT FOR THE
IDENTICAL OFFENSE WITH WHICH HE IS CHARGED IN A STATE COURT, THIS WOULD
NOT BE A BAR TO THE PROSECUTION OF SUCH PERSON IN THE PROPER STATE
COURT." 

THE SECOND TRIAL OF PETITIONER WHICH RESULTED IN A JUDGMENT OF
CONVICTION IN THE STATE COURT FOR A FELONY HAVING NO VALID BASIS, THAT
JUDGMENT IS VACATED AND THE CAUSE REMANDED TO THE DISTRICT COURT OF
APPEAL OF FLORIDA, SECOND DISTRICT, FOR FURTHER PROCEEDINGS IN ACCORD
WITH THIS OPINION.  IN THESE CIRCUMSTANCES WE DO NOT REACH OTHER
CONTENTIONS RAISED BY PETITIONER. 

              IT IS SO ORDERED. 

/1/  WE ACCEPT THE ASSUMPTION OF THE DISTRICT COURT OF APPEAL
ALTHOUGH THE RECORD IS NOT ADEQUATE TO VERIFY ITS ACCURACY.  FOR
EXAMPLE, NO PART OF THE RECORD OF THE MUNICIPAL COURT CONVICTION HAS
BEEN INCORPORATED INTO THE RECORD IN THE PRESENT CASE. 

/2/  BENTON V. MARYLAND, 395 U.S. 784 (1969), CONTROLS ANY CASE
WHICH ARISES IN ITS AMBIT.  SEE ASHE V. SWENSON, POST, P. 436 N. 1. 
NONETHELESS, WHEN THIS COURT GRANTED CERTIORARI IN PRICE V. GEORGIA,
NO. 269, 1969 TERM, IT REQUESTED THAT COUNSEL "BRIEF AND ARGUE (THE)
QUESTION OF RETROACTIVITY OF BENTON V. MARYLAND, (395 U.S. 784), AND
WHETHER THAT DECISION IS APPLICABLE TO THIS CASE."  395 U.S. 975
(1969).  BY OUR DECISIONS IN THE INSTANT CASE AND IN ASHE V. SWENSON,
SUPRA, WE DO NOT RESOLVE, WITH RESPECT TO THE CIRCUMSTANCES PRESENTED
IN PRICE V. GEORGIA, SUPRA, EITHER OF THE TWO QUESTIONS POSED BY THE
COURT IN THAT CASE. 

/3/  DECISIONS OF THE STATES THAT CURRENTLY APPEAR TO TREAT
MUNICIPALITIES AND THE STATE AS SEPARATE SOVEREIGNS FOR DOUBLE JEOPARDY
PURPOSES ARE AS FOLLOWS: 

PIKE V. CITY OF BIRMINGHAM, 36 ALA.APP.  53, 53 SO.2D 394, CERT.
DENIED, 255 ALA. 664, 53 SO.2D 396 (1951).  SEE ALSO ALA. CODE, TIT.
37, SEC. 594 (1958).  UNITED STATES V. FARWELL, 11 ALASKA 507, 76
F.SUPP.  35 (D.C. ALASKA 1948); MCINERNEY V. CITY OF DENVER, 17 COLO.
302, 29 P. 516 (1892); STATE V. MUSSER, 67 IDAHO 214, 176 P.2D 199
(1946); PEOPLE V. BEHYMER, 48 ILL.APP.2D 218, 198 N.E.2D 729 (1964);
STATE V. GARCIA, 198 IOWA 744, 200 N.W. 201 (1924); EARWOOD V. STATE,
198 KAN. 659, 426 P.2D 151 (1967); STATE V. CLIFFORD, 45 LA.ANN.  980,
13 SO. 281 (1893).  SEE ALSO LA. CRIM. PRO. CODE ANN., ART. 597 (1967);
STATE V. END, 232 MINN. 266, 45 N.W.2D 378 (1950); MAY V. TOWN OF
CARTHAGE, 191 MISS.  97, 2 SO.2D 801 (1941); STATE V. GARNER, 360 MO.
50, 226 S.W.2D 604 (1950); STATE V. AMICK, 173 NEB. 770, 114 N.W.2D 893
(1962); EX PARTE SLOAN, 47 NEV. 109, 217 P. 233 (1923); STATE V.
SIMPSON, 78 N.D. 360, 49 N.W.2D 777 (1951); KOCH V. STATE, 53 OHIO ST.
433, 41 N.E. 689 (1895); MCCANN V. STATE, 82 OKLA.CR. 374, 170 P.2D 562
(1946); MILLER V. HANSEN, 126 ORE.  297, 269 P. 864 (1928); WEBSTER V.
KNEWEL, 47 S.D. 142, 196 N.W. 549 (1924); STATE V. TUCKER, 137 WASH.
162, 242 P. 363, 246 P. 758 (1926); CITY OF MILWAUKEE V. JOHNSON, 192
WIS. 585, 213 N.W. 335 (1927); STATE V. JACKSON, 75 WYO. 13, 291 P.2D
798 (1955).  GROSS, SUCCESSIVE PROSECUTIONS BY CITY AND STATE-- THE
QUESTION OF DOUBLE JEOPARDY, 43 ORE.L.REV.  281 (1964), CONTAINS A
DISCUSSION OF THE ORIGINS AND DEVELOPMENT OF THIS "DUAL SOVEREIGNTY"
DOCTRINE.  SEE ALSO NOTE, 1968 DUKE L. J. 362. 

/4/  AT THE TIME OF PETITIONER'S TRIAL, BEFORE THE 1968 REVISION OF
THE FLORIDA CONSTITUTION, ART. VIII, SEC. 8, OF THE FLORIDA
CONSTITUTION (1885) GAVE POWER TO THE STATE LEGISLATURE: "TO ESTABLISH,
AND TO ABOLISH, MUNICIPALITIES(,) TO PROVIDE FOR THEIR GOVERNMENT, TO
PRESCRIBE THEIR JURISDICTION AND POWERS, AND TO ALTER OR AMEND THE SAME
AT ANY TIME." 

/5/  SEE ALSO PUERTO RICO V. SHELL CO. (P.R.), LTD., 302 U.S. 253
(1937), WHERE THE COURT IN DICTA APPROVED OF GRAFTON. 

/6/  IF PETITIONER HAS COMMITTED OFFENSES NOT EMBRACED WITH THE
CHARGES AGAINST HIM IN THE MUNICIPAL COURT HE MAY, OR MAY NOT, BE
SUBJECT TO FURTHER PROSECUTION DEPENDING ON STATUTES OF LIMITATION AND
OTHER RESTRICTIONS NOT COVERED BY THE DOUBLE JEOPARDY RESTRAINTSOF THE
CONSTITUTIONS OF FLORIDA AND OF THE UNITED STATES. 

MR. JUSTICE BLACK JOINS THE OPINION OF THE COURT, BUT NONETHELESS
ADHERES TO THE VIEWS EXPRESSED IN HIS DISSENTING OPINIONS IN BARTKUS V.
ILLINOIS, 359 U.S. 121, 150 (1959), AND ABBATE V. UNITED STATES, 359
U.S. 187, 201 (1959). 

MR. JUSTICE BRENNAN, CONCURRING. 

I JOIN THE HOLDING OF THE COURT THAT, BECAUSE THE MUNICIPAL AND
STATE COURTS OF A STATE ARE PART OF ONE SOVEREIGN JUDICIAL SYSTEM,
SUCCESSIVE PROSECUTIONS IN THE MUNICIPAL AND STATE COURTS ARE NOT
PROSECUTIONS BY SEPARATE SOVEREIGN ENTITIES.  MOREOVER, FOR THE REASONS
STATED IN MY CONCURRING OPINION IN ASHE V. SWENSON, POST, P. 448, I
BELIEVE THAT, UNLESS THIS CASE FELL WITHIN ONE OF THE EXCEPTIONS TO THE
"SAME TRANSACTION" RULE, SEE, ID., AT 453 N. 7, 455 N. 11, THE DOUBLE
JEOPARDY CLAUSE BARRED A SECOND TRIAL SINCE ALL THE CHARGES GREW OUT OF
THE SAME CRIMINAL EPISODE.  /1/ 

/1/  I ADHERE TO THE COURT'S HOLDING IN ASHE V. SWENSON, POST, AT
437 N. 1, THAT OUR DECISION IN BENTON V. MARYLAND, 395 U.S. 784 (1969),
HOLDING THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT APPLICABLE TO
THE STATES, IS "FULLY 'RETROACTIVE.'"  SEE ALSO NORTH CAROLINA V.
PEARCE, 395 U.S. 711 (1969). 

LESLIE HAROLD LEVINSON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WERE MELVIN L. WULF AND GARDNER W. BECKETT, JR. 

GEORGE R. GEORGIEFF, ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE EARL FAIRCLOTH,
ATTORNEY GENERAL, AND WILLIAM D. ROTH, SPECIAL ASSISTANT ATTORNEY
GENERAL. 
..END :

















ROSADO V. WYMAN, 397 U.S. 397 


       ROSADO ET AL. V. WYMAN, COMMISSIONER OF SOCIAL SERVICES OF

           NEW YORK, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT. 

        NO. 540.  ARGUED NOVEMBER 19, 1969-- DECIDED APRIL 6,
1970. 


THE SOCIAL SECURITY AMENDMENTS OF 1967 ADDED SEC. 402(A)(23), WHICH
READS:  "(THE STATES SHALL) PROVIDE THAT BY JULY 1, 1969, THE AMOUNTS
USED BY THE STATE TO DETERMINE NEEDS OF INDIVIDUALS WILL HAVE BEEN
ADJUSTED TO REFLECT FULLY CHANGES IN LIVING COSTS SINCE SUCH AMOUNTS
WERE ESTABLISHED AND ANY MAXIMUMS THAT THE STATE IMPOSES ON THE AMOUNT
OF AID PAID TO FAMILIES WILL HAVE BEEN PROPORTIONATELY ADJUSTED."  IN
1969 NEW YORK, BY SEC. 131-A OF ITS SOCIAL SERVICES LAW, ALTERED ITS
STANDARD-OF-NEED COMPUTATION UNDER THE FEDERALLY SUPPORTED AID TO
FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM, AND ADOPTED A SYSTEM
FIXING MAXIMUM ALLOWANCES PER FAMILY BASED ON THE NUMBER OF PERSONS IN
THE FAMILY AND THE AGE OF THE OLDEST CHILD, AND ELIMINATED A "SPECIAL
GRANTS" PROGRAM.  THE STATE STATUTE RESULTED IN DECREASED BENEFITS TO
MANY NEW YORK CITY RECIPIENTS.  THIS CONTROVERSY INVOLVING THE
COMPATIBILITY OF THE TWO STATUTES AROSE OUT OF A PENDENT CLAIM INCLUDED
IN PETITIONERS' COMPLAINT BRINGING A CLASS ACTION CHALLENGING SEC. 131
A AS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE BY VIRTUE OF ITS
PROVISION FOR LESSER PAYMENTS TO AFDC RECIPIENTS IN NASSAU COUNTY THAN
THOSE ALLOWED FOR NEW YORK RESIDENTS.  A THREE-JUDGE COURT WAS
CONVENED, BUT BEFORE A DECISION WAS RENDERED SEC. 131-A WAS AMENDED TO
PERMIT NASSAU COUNTY GRANTS EQUAL TO THOSE IN NEW YORK CITY.  THE THREE
JUDGE COURT CONCLUDED THAT THE EQUAL PROTECTION ISSUE WAS "NO LONGER
JUSTICIABLE," DISSOLVED ITSELF, AND REMANDED THE MATTER TO THE SINGLE
DISTRICT JUDGE.  THE DISTRICT JUDGE ISSUED AN INJUNCTION PROHIBITING
THE REDUCTION OR DISCONTINUANCE OF "REGULAR AND RECURRING GRANTS AND
SPECIAL GRANTS" PAYABLE UNDER THE PREDECESSOR WELFARE LAW.  THE COURT
OF APPEALS REVERSED, HOLDING THAT THE THREE-JUDGE COURT HAD PROPERLY
DISSOLVED ITSELF BUT THAT THE DISTRICT JUDGE SHOULD NOT HAVE RULED ON
THE MERITS OF PETITIONERS' STATUTORY CLAIM.  HELD: 

1.  THE DISTRICT JUDGE HAD JURISDICTION TO DECIDE THIS FEDERAL
STATUTORY CHALLENGE TO THE NEW YORK WELFARE LAW.  PP. 402-407. 

(A) JURISDICTION OVER THE PRIMARY CLAIM AT ALL STAGES OF THE
LITIGATION IS NOT A PREREQUISITE TO RESOLUTION OF THE PENDENT CLAIM,
AND THE MOOTNESS OF THE EQUAL PROTECTION CLAIM DOES NOT ELIMINATE THE
JURISDICTION OF THE DISTRICT JUDGE OVER THE PENDENT STATUTORY CLAIM. 
PP. 402-405. 

(B) THE DISTRICT JUDGE PROPERLY DID NOT DECLINE JURISDICTION TO
ALLOW THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) TO RESOLVE
THE CONTROVERSY, AS NEITHER THE "EXHAUSTION OF ADMINISTRATIVE REMEDIES"
NOR THE "PRIMARY JURISDICTION" DOCTRINE IS APPLICABLE HERE. 
PETITIONERS DO NOT SEEK REVIEW OF AN ADMINISTRATIVE RULING NOR COULD
THEY HAVE OBTAINED SUCH A RULING SINCE HEW DOES NOT PERMIT WELFARE
RECIPIENTS TO TRIGGER OR PARTICIPATE IN ITS REVIEW OF STATE WELFARE
PROGRAMS.  PP. 405-407. 

2.  NEW YORK'S PROGRAM IS INCOMPATIBLE WITH SEC. 402(A)(23) AND
PETITIONERS ARE ENTITLED TO AN INJUNCTION BY THE DISTRICT COURT AGAINST
PAYMENT OF FEDERAL MONIES ACCORDING TO THE STATE'S NEW SCHEDULES,
SHOULD NEW YORK NOT DEVELOP A CONFORMING PLAN WITHIN A REASONABLE
TIME.  PP. 407-420. 

(A) CONGRESS IN SEC. 402(A)(23) REQUIRED THE STATES TO FACE UP TO
THE MAGNITUDE OF THE PUBLIC ASSISTANCE REQUIREMENT, PRODDED THEM MORE
EQUITABLE TO APPORTION THEIR PAYMENTS, AND SPOKE IN FAVOR OF INCREASES
IN AFDC PAYMENTS.  PP. 412-414. 

(B) THE EVIDENCE SUPPORTS THE DISTRICT JUDGE'S FINDING THAT NEW YORK
HAS, IN EFFECT, IMPERMISSIBLY LOWERED ITS STANDARD OF NEED BY DELETING
ITEMS THAT WERE PREVIOUSLY INCLUDED.  PP. 415-417. 

(C) WHILE SEC. 402(A)(23) DOES NOT PREVENT NEW YORK FROM PURSUING A
GOAL OF ADMINISTRATIVE EFFICIENCY, IT DOES FORECLOSE THE STATE FROM
ACHIEVING THIS PURPOSE BY REDUCING SIGNIFICANTLY THE CONTENT OF ITS
STANDARD OF NEED.  PP. 417-419. 

(D) SECTION 402(A)(23) INVALIDATES ANY STATE PROGRAM THAT DECREASES
THE CONTENT OF THE STANDARD OF NEED, UNLESS THE STATE CAN DEMONSTRATE
THAT THE ITEMS FORMERLY INCLUDED (HERE THE SYSTEM OF SPECIAL GRANTS,
NOT THE SYSTEM OF MAXIMUM GRANTS BASED UPON AVERAGE AGE OF THE OLDEST
CHILD) NO LONGER CONSTITUTED PART OF THE REALITY OF EXISTENCE FOR THE
MAJORITY OF WELFARE RECIPIENTS.  PP. 419-420. 

3.  CONGRESS HAS NOT FORECLOSED JUDICIAL REVIEW TO WELFARE
RECIPIENTS WHO ARE MOST DIRECTLY AFFECTED BY THE ADMINISTRATION OF THE
PROGRAM AND IT IS THE DUTY OF THE FEDERAL COURTS TO RESOLVE DISPUTES AS
TO WHETHER FEDERAL FUNDS ALLOCATED TO THE STATES FOR WELFARE PROGRAMS
ARE PROPERLY EXPENDED.  PP. 420-423. 

414 F.2D 170, REVERSED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE PRESENT CONTROVERSY, WHICH INVOLVES THE COMPATIBILITY OF THE NEW
YORK SOCIAL SERVICES LAW (C. 184, L. 1969) WITH SEC. 402(A)(23) OF THE
SOCIAL SECURITY ACT OF 1935, AS AMENDED, 81 STAT. 898, 42 U.S.C.
602(A)(23) (1964 ED., SUPP. IV), ARISES OUT OF A PENDENT CLAIM
ORIGINALLY INCLUDED IN PETITIONERS' COMPLAINT BRINGING A CLASS ACTION
CHALLENGING SEC. 131-A OF THE SAME NEW YORK STATUTE AS VIOLATIVE OF
EQUAL PROTECTION BY VIRTUE OF ITS PROVISION FOR LESSER PAYMENTS TO AID
TO FAMILIES WITH DEPENDENT CHILDREN RECIPIENTS IN NASSAU COUNTY THAN
THOSE ALLOWED FOR NEW YORK CITY RESIDENTS.  PURSUANT TO THE
RECOMMENDATION OF JUDGE WEINSTEIN, A THREE-JUDGE COURT WAS CONVENED ON
APRIL 24, 1969, AND A HEARING WAS HELD.  304 F.SUPP.  1350. 

BEFORE A DECISION WAS RENDERED NEW YORK STATE AMENDED SEC. 131-A TO
PERMIT THE STATE COMMISSIONER OF SOCIAL SERVICES TO MAKE, IN HIS
DISCRETION, GRANTS TO RECIPIENTS IN NASSAU COUNTY EQUAL TO THOSE
PROVIDED FOR NEW YORK CITY RESIDENTS.  THE THREE-JUDGE PANEL IN A
MEMORANDUM OPINION OF MAY 12, 1969, CONCLUDED THAT THE EQUAL PROTECTION
ISSUE WAS "NO LONGER JUSTICIABLE" AND THAT "(THE CONSTITUTIONAL ATTACK
ON THE PROVISION (SEC. 131-A) AS ORIGINALLY ADOPTED HAS BEEN RENDERED
MOOT AND ANY ATTACK ON THE NEWLY ADOPTED SUBDIVISION WOULD NOT BE RIPE
FOR ADJUDICATION . . . UNTIL THERE (HAD) BEEN OPPORTUNITY FOR ACTION BY
STATE OFFICIALS . . . . "  /1/  THAT COURT FURTHER HELD THAT SINCE
THERE EXISTED "NO REASON FOR CONTINUING THE THREE-JUDGE COURT," THE
"MATTER" SHOULD BE "REMANDED TO THE SINGLE JUDGE TO WHOM THE COMPLAINT
WAS ORIGINALLY PRESENTED FOR SUCH FURTHER PROCEEDINGS AS ARE
APPROPRIATE."  304 F.SUPP.  1354, 1356.  ON THE SAME DAY AS THE THREE
JUDGE COURT DISSOLVED ITSELF, JUDGE WEINSTEIN ISSUED A PRELIMINARY
INJUNCTION PROHIBITING RESPONDENTS FROM REDUCING OR DISCONTINUING
PAYMENTS OF "REGULAR RECURRING GRANTS AND SPECIAL GRANTS," PAYABLE
UNDER THE PREDECESSOR WELFARE LAW, 304 F.SUPP.  1356, AND THE STATE'S
ELIMINATION OF WHICH FROM THE COMPUTATION OF WELFARE BENEFITS IS THE
SUBJECT MATTER OF THE CONTROVERSY NOW BEFORE THIS COURT. 

AN INTERLOCUTORY APPEAL WAS TAKEN TO THE COURT OF APPEALS AND THE
CASE WAS GRANTED A CALENDAR PREFERENCE.  AFTER HEARING ORAL ARGUMENT
THE COURT OF APPEALS, ON JUNE 11, ENTERED AN ORDER STAYING THE
PRELIMINARY INJUNCTION PENDING ITS DISPOSITION OF THE APPEAL AND LATER
CONVERTED ITS STAY INTO AN ORDER STAYING THE PERMANENT INJUNCTION
SUBSEQUENTLY ISSUED BY THE DISTRICT COURT WHEN IT GRANTED SUMMARY
JUDGMENT ON JUNE 18, 1969, 304 F.SUPP.  1356, 1381.  ON JULY 16, 1969,
THE COURT OF APPEALS PANEL ANNOUNCED ITS JUDGMENT OF REVERSAL
ACCOMPANIED BY THREE OPINIONS.  414 F.2D 170.  CHIEF JUDGE LUMBARD AND
JUDGE HAYS AGREED THAT THE THREE-JUDGE PANEL HAD PROPERLY DISSOLVED
ITSELF AND WERE OF THE VIEW, FOR SOMEWHAT DIFFERENT REASONS, THAT JUDGE
WEINSTEIN SHOULD NOT HAVE RULED ON THE MERITS OF PETITIONERS' STATUTORY
CLAIM; THEY ALSO EXPRESSED THEIR OPINION THAT THE SINGLE-JUDGE DISTRICT
COURT (HEREINAFTER DISTRICT COURT) ERRED ON THE MERITS.  JUDGE FEINBERG
DISAGREED ON ALL SCORES, EXPRESSING THE VIEW THAT THE DISTRICT COURT
PROPERLY REACHED AND CORRECTLY DECIDED THE MERITS OF THE STATUTORY
CLAIM. 

PETITIONERS' APPLICATION TO THE AUTHOR OF THIS OPINION, AS CIRCUIT
JUSTICE, FOR A STAY AND AN ACCELERATED REVIEW WAS REFERRED BY HIM TO
THE ENTIRE COURT, AND ON OCTOBER 13, 1969, CERTIORARI WAS GRANTED.  396
U.S. 815.  THE REQUEST FOR A STAY WAS DENIED BUT THE CASE WAS SET DOWN
FOR EARLY ARGUMENT. 

WE NOT REVERSE.  FOR ESSENTIALLY THOSE REASONS STATED IN THE OPINION
OF THE DISTRICT COURT AND CIRCUIT JUDGE FEINBERG'S DISSENT, WE THINK
THE DISTRICT COURT CORRECTLY EXERCISED ITS DISCRETION BY PROCEEDING TO
THE MERITS.  WE ARE ALSO UNABLE TO ACCEPT THE CONCLUSION REACHED BY A
MAJORITY OF THE COURT OF APPEALS THAT SEC. 402(A)(23) DOES NOT AFFECT
STATES LIKE NEW YORK THAT PLACE NO LIMITATION ON THE LEVEL OF PAYMENTS
OF WELFARE BENEFITS AS DETERMINED BY THEIR STANDARD OF NEED.  FOR
REASONS SET FORTH IN PART II, WE CONCLUDE THAT THE PRESENT NEW YORK
PROGRAM DOES NOT FULFILL THE REQUIREMENTS OF SEC. 402(A)(23) OF THE
FEDERAL STATUTE. 

     I

        A 

WE CONSIDER THE THRESHOLD QUESTION OF WHETHER SUBJECT MATTER
JURISDICTION WAS VESTED IN THE DISTRICT COURT TO DECIDE THIS FEDERAL
STATUTORY CHALLENGE TO THE NEW YORK SOCIAL SERVICES LAW. 

THAT THE THREE-JUDGE COURT ITSELF NOT ONLY HAD JURISDICTION BUT
WOULD HAVE BEEN OBLIGED TO ADJUDICATE THIS STATUTORY CLAIM IN
PREFERENCE TO DECIDING THE ORIGINAL CONSTITUTIONAL CLAIM IN THIS CASE
FOLLOWS FROM KING V. SMITH, 392 U.S. 309 (1968), WHERE, ON AN APPEAL
FROM A THREE-JUDGE COURT, WE DECIDED THE STATUTORY QUESTION IN ORDER TO
AVOID A CONSTITUTIONAL RULING.  392 U.S.,AT 312 N. 3.  IN THE CASE
BEFORE US THE CONSTITUTIONAL CLAIM WAS DECLARED MOOT PRIOR TO DECISION
BY THE THREE-JUDGE COURT AND THE QUESTION ARISES WHETHER THAT
CIRCUMSTANCE REMOVED NOT ONLY THE OBLIGATION BUT DESTROYED THE POWER OF
A FEDERAL COURT TO ADJUDICATE THE PENDENT CLAIM.  /2/  WE THINK NOT. 
JURISDICTION OVER FEDERAL CLAIMS, CONSTITUTIONAL OR OTHERWISE, IS
VESTED, EXCLUSIVELY OR CONCURRENTLY, IN THE FEDERAL DISTRICT COURTS. 
SUCH COURTS USUALLY SIT AS SINGLE-JUDGE TRIBUNALS.  WHILE CONGRESS HAS
DETERMINED THAT CERTAIN CLASSES OF CASES SHALL BE HEARD IN THE FIRST
INSTANCE BY A DISTRICT COURT COMPOSED OF THREE JUDGES, THAT DOES NOT
MEAN THAT THE COURT QUA COURT LOSES ALL JURISDICTION OVER THE COMPLAINT
THAT IS INITIALLY LODGED WITH IT.  TO THE CONTRARY, ONCE PETITIONERS
FILED THERE COMPLAINT ALLEGING THE UNCONSTITUTIONALITY OF SEC. 131-A,
THE DISTRICT COURT SITTING AS A ONE-MAN TRIBUNAL, WAS PROPERLY SEISED
OF JURISDICTION OVER THE CASE UNDER SECS. 1343(3) AND (4) OF TITLE 28
AND COULD DISPOSE OF EVEN THE CONSTITUTIONAL QUESTION EITHER BY
DISMISSING THE COMPLAINT FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION, EX
PARTE PORESKY, 290 U.S. 30 (1933), /3/  OR BY GRANTING REQUESTED
INJUNCTIVE RELIEF IF "PRIOR DECISIONS (MADE) FRIVOLOUS ANY CLAIM THAT
(THE) STATE STATUTE ON ITS FACE (WAS) NOT UNCONSTITUTIONAL."  BAILEY V.
PATTERSON, 369 U.S. 31, 33 (1962).  EVEN HAD THE CONSTITUTIONAL CLAIM
NOT BEEN DECLARED MOOT, THE MOST APPROPRIATE COURSE MAY WELL HAVE BEEN
TO REMAND THE SINGLE DISTRICT JUDGE FOR FINDINGS AND THE DETERMINATION
OF THE STATUTORY CLAIM RATHER THAN ENCUMBER THE DISTRICT COURT, AT A
TIME WHEN DISTRICT COURT CALENDARS ARE OVERBURDENED, BY CONSUMING THE
TIME OF THREE FEDERAL JUDGES IN A MATTER THAT WAS NOT REQUIRED TO BE
DETERMINED BY A THREE-JUDGE COURT.  SEE SWIFT & CO. V. WICKHAM, 382
U.S. 111 (1965). 

ON REMAND THE DISTRICT COURT CORRECTLY CONSIDERED MOOTNESS A FACTOR
AFFECTING ITS DISCRETION, NOT ITS POWER, AND BALANCED THE POLICY
CONSIDERATIONS THAT HAVE SPAWNED THE DOCTRINE OF PENDENCY AND THE
COUNTERVAILING POLICY OF FEDERALISM:  THE EXTENT OF THE INVESTMENT OF
JUDICIAL ENERGY AND THE CHARACTER OF THE CLAIM.  NOT ONLY HAD THERE
BEEN HEARINGS AND ARGUMENT PRIOR TO DISMISSAL OF THE CONSTITUTIONAL
CLAIM, BUT THE STATUTORY QUESTION IS SO ESSENTIALLY ONE "OF FEDERAL
POLICY THAT THE ARGUMENT FOR EXERCISE OF PENDENT JURISDICTION IS
PARTICULARLY STRONG."  /4/  UNITED MINE WORKERS V. GIBBS, 383 U.S. 715,
727 (1966). 

RESPONDENTS ANALOGIZE DISMISSAL FOR MOOTNESS TO DISMISSAL FOR WANT
OF A SUBSTANTIAL CLAIM AND RELY ON LANGUAGE IN UNITED MINE WORKERS V.
GIBBS, TO THE EFFECT THAT A FEDERAL COURT SHOULD NOT PASS ON A STATE
CLAIM WHEN THE FEDERAL CLAIM FALTERS AT THE THRESHOLD AND IS "DISMISSED
BEFORE TRIAL."  /5/  383 U.S.,AT 726.  THE ARGUMENT WOULD APPEAR TO BE
THAT ONCE A FEDERAL COURT LOSES POWER OVER THE JURISDICTION-CONFERRING
CLAIM, IT MAY NOT CONSIDER A PENDENT CLAIM.  THEY CONTEND THAT
MOOTNESS, LIKE INSUBSTANTIALITY, IS A THRESHOLD JURISDICTIONAL DEFECT. 

WHETHER OR NOT THE VIEW THAT AN INSUBSTANTIAL FEDERAL QUESTION DOES
NOT CONFER JURISDICTION-- A MAXIM MORE ANCIENT THAN ANALYTICALLY SOUND-
SHOULD NOW BE HELD TO MEAN THAT A DISTRICT COURT SHOULD BE CONSIDERED
WITHOUT DISCRETION, AS OPPOSED TO POWER, TO HEAR A PENDENT CLAIM WE
THINK THE RESPONDENTS' ANALOGY FAILS.  UNLIKE INSUBSTANTIALITY, WHICH
IS APPARENT AT THE OUTSET, MOOTNESS, FREQUENTLY A MATTER BEYOND THE
CONTROL OF THE PARTIES, MAY NOT OCCUR UNTIL AFTER SUBSTANTIAL TIME AND
ENERGY HAVE BEEN EXPENDED LOOKING TOWARD THE RESOLUTION OF A DISPUTE
THAT PLAINTIFFS WERE ENTITLED TO BRING IN A FEDERAL COURT. 

WE ARE NOT WILLING TO DEFEAT THE COMMONSENSE POLICY OF PENDENT
JURISDICTION-- THE CONSERVATION OF JUDICIAL ENERGY AND THE AVOIDANCE OF
MULTIPLICITY OF LITIGATION-- BY A CONCEPTUAL APPROACH THAT WOULD
REQUIRE JURISDICTION OVER THE PRIMARY CLAIM AT ALL STAGES AS A
PREREQUISITE TO RESOLUTION OF THE PENDENT CLAIM.  /6/  THE COURT HAS
SHUNNED THIS VIEW.  SEE MOORE V. NEW YORK COTTON EXCH., 270 U.S. 593
(1926); HURN V. OURSLER, 289 U.S. 238 (1933) (DICTUM).  /7/

   B 

A FURTHER REASON GIVEN TO SUPPORT THE CONTENTION THAT THE DISTRICT
COURT SHOULD HAVE DECLINED TO EXERCISE JURISDICTION IS THAT THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE WAS THE APPROPRIATE FORUM,
AT LEAST IN THE FIRST INSTANCE, FOR RESOLUTION ON THE MERITS OF THE
QUESTIONS BEFORE US, AND THAT AT THE TIME THIS ACTION CAME TO COURT HEW
WAS "ENGAGED IN A STUDY OF THE RELATIONSHIP BETWEEN SECTION 602(A)(23)
AND SECTION 131-A."  414 F.2D,AT 176 (OPINION OF JUDGE HAYS).  /8/
PETITIONERS ANSWER, WE THINK CORRECTLY, THAT NEITHER THE PRINCIPLE OF
"EXHAUSTION OF ADMINISTRATIVE REMEDIES" NOR THE DOCTRINE OF "PRIMARY
JURISDICTION" HAS ANY APPLICATION TO THE SITUATION BEFORE US.
PETITIONERS DO NOT SEEK REVIEW OF AN ADMINISTRATIVE ORDER, NOR COULD
THEY HAVE OBTAINED AN ADMINISTRATIVE RULING SINCE HEW HAS NO PROCEDURES
WHEREBY WELFARE RECIPIENTS MAY TRIGGER AND PARTICIPATE IN THE
DEPARTMENT'S REVIEW OF STATE WELFARE PROGRAMS.  CF. ABBOTT LABORATORIES
V. GARDNER, 387 U.S. 136 (1967); K. DAVIS, ADMINISTRATIVE LAW SEC.
19.01 (1965); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 425
(1965). 

THAT THESE FORMAL DOCTRINES OF ADMINISTRATIVE LAW DO NOT PRECLUDE
FEDERAL JURISDICTION DOES NOT MEAN, HOWEVER, THAT A FEDERAL COURT MUST
DEPRIVE ITSELF OF THE BENEFIT OF THE EXPERTISE OF THE FEDERAL AGENCY
THAT IS PRIMARILY CONCERNED WITH THESE PROBLEMS.  WHENEVER POSSIBLE THE
DISTRICT COURTS SHOULD OBTAIN THE VIEWS OF HEW IN THOSE CASES WHERE IT
HAS NOT SET FORTH ITS VIEWS, EITHER IN A REGULATION OR PUBLISHED
OPINION, OR IN CASES WHERE THERE IS REAL DOUBT AS TO HOW THE
DEPARTMENT'S STANDARDS APPLY TO THE PARTICULAR STATE REGULATION OR
PROGRAM.  /9/ 

THE DISTRICT COURT, IN THIS INSTANCE, MADE CONSIDERABLE EFFORT TO
LEARN THE VIEWS OF HEW.  THE POSSIBILITY OF HEW'S PARTICIPATION, EITHER
AS A PARTY OR AN AMICUS, WAS EXPLORED IN THE DISTRICT COURT AND THE
DEPARTMENT AT THAT STAGE DETERMINED TO REMAIN ALOOF.  WE CANNOT IN
THESE CIRCUMSTANCES FAULT THE DISTRICT COURT FOR PROCEEDING TO TRY THE
CASE. 

        II 

WE TURN TO THE MERITS WHICH MAY BE BROADLY CHARACTERIZED AS
INVOLVING THE INTERPRETATION OF SEC. 402(A)(23) OF THE SOCIAL SECURITY
AMENDMENTS OF 1967 AND ITS APPLICATION TO CERTAIN CHANGES INAUGURATED
BY NEW YORK IN ITS METHOD OF COMPUTING WELFARE BENEFITS THAT HAVE
RESULTED IN REDUCED PAYMENTS TO THESE PETITIONERS AND, ON A BROADER
SCALE, DECREASED BY SOME $40 MILLION THE STATE'S PUBLIC ASSISTANCE
UNDERTAKING. 

        A 

WE BEGIN WITH A BRIEF REVIEW OF THE GENERAL STRUCTURE OF THE FEDERAL
AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM, ONE OF THE FOUR
"CATEGORICAL ASSISTANCE" PROGRAMS ESTABLISHED BY THE SOCIAL SECURITY
ACT OF 1935.  /10/ 

THE GENERAL TOPOGRAPHY OF THE AFDC PROGRAM WAS MAPPED IN PART BY
THIS COURT IN KING V. SMITH, 392 U.S. 309 (1968); AND SEVERAL LOWER
COURT OPINIONS, IN ADDITION TO THE OPINION BELOW, HAVE SURVEYED THE
PERTINENT STATUTORY AND REGULATORY PROVISIONS.  /11/  WHILE
PARTICIPATING STATES MUST COMPLY WITH THE TERMS OF THE FEDERAL
LEGISLATION, SEE KING V. SMITH, SUPRA, THE PROGRAM IS BASICALLY
VOLUNTARY AND STATES HAVE TRADITIONALLY BEEN AT LIBERTY TO PAY AS
LITTLE OR AS MUCH AS THEY CHOOSE, AND THERE ARE, IN FACT, STRIKING
DIFFERENCES IN THE DEGREE OF AID PROVIDED AMONG THE STATES. 

THERE ARE TWO BASIC FACTORS THAT ENTER INTO THE DETERMINATION OF
WHAT AFDC BENEFITS WILL BE PAID.  FIRST, IT IS NECESSARY TO ESTABLISH A
"STANDARD OF NEED," A YARDSTICK FOR MEASURING WHO IS ELIGIBLE FOR
PUBLIC ASSISTANCE.  SECOND, IT MUST BE DECIDED HOW MUCH ASSISTANCE WILL
BE GIVEN, THAT IS, WHAT "LEVEL OF BENEFITS" WILL BE PAID.  ON BOTH
SCORES CONGRESS HAS ALWAYS LEFT TO THE STATES A GREAT DEAL OF
DISCRETION.  KING V. SMITH, 392 U.S.,AT 318.  THUS, SOME STATES INCLUDE
IN THEIR "STANDARD OF NEED" ITEMS THAT OTHERS DO NOT TAKE INTO
ACCOUNT.  DIVERSITY ALSO EXISTS WITH RESPECT TO THE LEVEL OF BENEFITS
IN FACT PAID.  /12/  SOME STATES IMPOSE SO-CALLED DOLLAR MAXIMUMS ON
THE AMOUNT OF PUBLIC ASSISTANCE PAYABLE TO ANY ONE INDIVIDUAL OR
FAMILY.  SUCH MAXIMUMS ESTABLISH THE UPPER LIMIT IRRESPECTIVE OF HOW
FAR SHORT THE LIMITATION MAY FALL OF THE THEORETICAL STANDARD OF NEED. 
OTHER STATES CURTAIL THE PAYMENTS OF BENEFITS BY A SYSTEM OF "RATABLE
REDUCTIONS" WHEREBY ALL RECIPIENTS WILL RECIEVE A FIXED PERCENTAGE OF
THE STANDARD OF NEED.  /13/  IT IS, OF COURSE, POSSIBLE TO PAY 100% OF
NEED AS DEFINED.  NEW YORK, IN FACT, PURPORTS TO DO SO.             B 

IN 1967 THE ADMINISTRATION INTRODUCED OMNIBUS LEGISLATION TO AMEND
THE SOCIAL SECURITY LAWS.  THE RELEVANT AFDC PROPOSALS PROVIDED FOR
MORE ADEQUATE ASSISTANCE TO WELFARE RECIPIENTS AND SET UP SEVERAL
PROGRAMS FOR EDUCATION AND TRAINING ACCOMPANIED BY CHILD CARE
PROVISIONS DESIGNED TO PERMIT AFDC PARENTS TO TAKE ADVANTAGE OF THE
TRAINING PROGRAMS.  IN THE FORMER RESPECT THE AFDC PROPOSALS PARALLELED
OTHER PROVISIONS THAT PUT FORWARD AMENDMENTS TO ADJUST BENEFITS TO
RECIPIENTS OF OTHER CATEGORICAL AID TO REFLECT THE RISE IN THE COST OF
LIVING.  /14/  THUS, IN ITS EMBRYO STAGE THE AMENDMENT TO SEC. 402 WAS
SEC. 202(B) OF THE ADMINISTRATION BILL, H.R. 5710, 90TH CONG., 1ST
SESS. (1967), WHICH WOULD HAVE ADDED TO SEC. 402(A) OF THE SOCIAL
SECURITY ACT THE FOLLOWING CLAUSE:

"(14) PROVIDE (A), EFFECTIVE JULY 1, 1969, FOR MEETING (IN
CONJUNCTION WITH OTHER INCOME THAT IS NOT DISREGARDED . . . UNDER THE
PLAN AND OTHER RESOURCES) ALL THE NEED, AS DETERMINED IN ACCORDANCE
WITH STANDARDS APPLICABLE UNDER THE PLAN FOR DETERMINING NEED, OF
INDIVIDUALS ELIGIBLE TO RECEIVE AID TO FAMILIES WITH DEPENDENT CHILDREN
(AND SUCH STANDARDS SHALL BE NO LOWER THAN THE STANDARDS FOR
DETERMINING NEED IN EFFECT ON JANUARY 1, 1967), AND (B), EFFECTIVE JULY
1, 1968, FOR AN ANNUAL REVIEW OF SUCH STANDARDS AND (TO THE EXTENT
PRESCRIBED BY THE SECRETARY) FOR UP-DATING SUCH STANDARDS TO TAKE INTO
ACCOUNT CHANGES IN LIVING COSTS."  SECTION 202(B), HOWEVER, WAS
STILLBORN AND NO SUCH PROVISION WAS CONTAINED IN THE ULTIMATE BILL
REPORTED OUT BY THE HOUSE WAYS AND MEANS COMMITTEE.  SEE H.R. 12080,
90TH CONG., 1ST SESS. 

THE ADMINISTRATION'S RENEWED EFFORTS, ON BEHALF OF A MANDATORY
INCREASE IN BENEFIT PAYMENTS UNDER THE CATEGORICAL ASSISTANCE PROGRAMS,
/15/  MET WITH ONLY LIMITED SUCCESS, RESULTING IN SEC. 213(A) OF THE
SENATE VERSION, WHICH PROVIDED FOR A MANDATORY $7.50 PER MONTH INCREASE
IN THE STANDARDS AND BENEFITS FOR THE ADULT CATEGORIES, AND SEC. 213(B)
WHICH IS, IN SUBSTANCE, THE PRESENT SEC. 402(A)(23).  THE COMMITTEE'S
COMMENT ON SEC. 213(B), TO THE EFFECT THAT STATES WOULD BE REQUIRED "TO
PRICE THEIR STANDARDS . . . TO REFLECT CHANGES IN LIVING COSTS," TRACKS
THE STATUTORY LANGUAGE.  /16/ 

THE CONFERENCE COMMITTEE ELIMINATED THE SENATE PROVISION IN SEC. 213
WHICH WOULD HAVE REQUIRED AN ANNUAL ADJUSTMENT FOR COST OF LIVING, AND
SEC. 402(A)(23) WAS ENACTED.  IT NOW PROVIDES: 

"(THE STATES SHALL) PROVIDE THAT BY JULY 1, 1969, THE AMOUNTS USED
BY THE STATE TO DETERMINE THE NEEDS OF INDIVIDUALS WILL HAVE BEEN
ADJUSTED TO REFLECT FULLY CHANGES IN LIVING COSTS SINCE SUCH AMOUNTS
WERE ESTABLISHED, AND ANY MAXIMUMS THAT THE STATE IMPOSES ON THE AMOUNT
OF AID PAID TO FAMILIES WILL HAVE BEEN PROPORTIONATELY ADJUSTED." 

    C 

THE BACKGROUND OF SEC. 402(A)(23) REVEALS LITTLE EXCEPT THAT WE HAVE
BEFORE US A CHILD BORN OF THE SILENT UNION OF LEGISLATIVE COMPROMISE. 
THUS, CONGRESS, AS IT FREQUENTLY DOES, HAS VOICED ITS WISHES IN MUTED
STRAINS AND LEFT IT TO THE COURTS TO DISCERN THE THEME IN THE CACOPHONY
OF POLITICAL UNDERSTANDING.  OUR CHEIF RESOURCES IN THIS UNDERTAKING
ARE THE WORDS OF THE STATUTE AND THOSE COMMONSENSE ASSUMPTIONS THAT
MUST BE MADE IN DETERMINING DIRECTION WITHOUT A COMPASS. 

REVERTING TO THE LANGUAGE OF SEC. 402(A)(23) WE FIND TWO SEPARATE
MANDATES:  FIRST, THE STATES MUST RE-EVALUATE THE COMPONENT FACTORS
THAT COMPOSE THEIR NEED EQUATION; AND, SECOND, ANY "MAXIMUMS" MUST BE
ADJUSTED. 

WE THINK TWO BROAD PURPOSES MAY BE ASCRIBED TO SEC. 402(A)(23):
FIRST, TO REQUIRE STATES TO FACE UP REALISTICALLY TO THE MAGNITUDE OF
THE PUBLIC ASSISTANCE REQUIREMENT AND LAY BARE THE EXTENT TO WHICH
THEIR PROGRAMS FALL SHORT OF FULFILLING ACTUAL NEED; SECOND, TO PROD
THE STATES TO APPORTION THEIR PAYMENTS ON A MORE EQUITABLE BASIS. 
CONSISTENT WITH THIS INTERPRETATION OF SEC. 402(A)(23), A STATE MAY,
AFTER RECOMPUTING ITS STANDARD OF NEED, PARE DOWN PAYMENTS TO
ACCOMMODATE BUDGETARY REALITIES BY REDUCING THE PERCENT OF BENEFITS
PAID OR SWITCHING TO A PERCENT REDUCTION SYSTEM, BUT IT MAY NOT OBSCURE
THE ACTUAL STANDARD OF NEED. 

THE CONGRESSIONAL PURPOSE WE DISCERN DOES NOT RENDER SEC. 402(A)(23)
A MEANINGLESS EXERCISE IN "BOOKKEEPING."  CONGRESS SOMETIMES LEGISLATES
BY INNUENDO, MAKING DECLARATIONS OF POLICY AND INDICATING A PREFERENCE
WHILE REQUIRING MEASURES THAT, THOUGH FALLING SHORT OF LEGISLATING ITS
GOALS, SERVE AS A NUDGE IN THE PREFERRED DIRECTIONS.  IN SEC.
402(A)(23) CONGRESS HAS SPOKEN IN FAVOR OF INCREASES IN AFDC PAYMENTS. 
WHILE CONGRESS REJECTED THE MANDATORY ADJUSTMENT PROVISION IN THE
ADMINISTRATION BILL, IT EMBODIED IN LEGISLATION THE COST-OF-LIVING
EXERCISE WHICH HAS BOTH PRACTICAL AND POLITICAL CONSEQUENCES. 

IT HAS THE EFFECT OF REQUIRING THE STATES TO RECOGNIZE AND ACCEPT
THE RESPONSIBILITY FOR THOSE ADDITIONAL INDIVIDUALS WHOSE INCOME FALLS
SHORT OF THE STANDARD OF NEED AS COMPUTED IN LIGHT OF ECONOMIC
REALITIES AND TO PLACE THEM AMONG THOSE ELIGIBLE FOR THE CARE AND
TRAINING PROVISIONS.  SECONDLY, WHILE IT LEAVES THE STATES FREE TO
EFFECT DOWNWARD ADJUSTMENTS IN THE LEVEL OF BENEFITS PAID, IT
ACCOMPLISHES WITHIN THAT FRAMEWORK THE GOAL, HOWEVER MODEST, OF FORCING
A STATE TO ACCEPT THE POLITICAL CONSEQUENCE OF SUCH A CUTBACK AND
BRINGING TO LIGHT THE TRUE EXTENT TO WHICH ACTUAL ASSISTANCE FALLS
SHORT OF THE MINIMUM ACCEPTABLE.  LASTLY, BY IMPOSING ON THOSE STATES
THAT DESIRE TO MAINTAIN "MAXIMUMS" THE REQUIREMENT OF AN APPROPRIATE
ADJUSTMENT, CONGRESS HAS INTRODUCED AN INCENTIVE TO ABANDON A FLAT
"MAXIMUM" SYSTEM, THEREBY ENCOURAGING THOSE STATES DESIROUS OF
CONTAINING THEIR WELFARE BUDGET TO SHIFT TO A PERCENTAGE SYSTEM THAT
WILL MORE EQUITABLE APPORTION THOSE FUNDS IN FACT ALLOCATED FOR WELFARE
AND ALSO MORE ACCURATELY REFLECT THE REAL MEASURE OF PUBLIC ASSISTANCE
BEING GIVEN. 

WHILE WE DO NOT AGREE WITH THE BROAD INTERPRETATION GIVEN SEC.
402(A)(23) BY THE DISTRICT COURT, /17/  WE CANNOT ACCEPT THE CONCLUSION
REACHED BY THE TWO-JUDGE MAJORITY IN THE COURT OF APPEALS-- THAT SEC.
402(A)(23) DOES NOT AFFECT NEW YORK.  /18/  IT FOLLOWS FROM WHAT WE
FATHOM TO BE THE CONGRESSIONAL PURPOSE THAT A STATE MAY NOT REDEFINE
ITS STANDARD OF NEED IN SUCH A WAY THAT IT SKIRTS THE REQUIREMENT OF RE
EVALUATING ITS EXISTING STANDARD.  THIS WOULD RENDER THE COST-OF-LIVING
REAPPRAISAL A FUTILE, HOLLOW, AND, INDEED, A DECEPTIVE GESTURE, AND
WOULD AVOID THE CONSEQUENCES OF INCREASING THE NUMBERS OF THOSE
ELIGIBLE AND FACING UP TO THE FAILURE TO ALLOCATE SUFFICIENT FUNDS TO
PROVIDE FOR THEM. 

THESE CONCLUSIONS, IF NOT COMPELLED BY THE WORDS OF THE STATUTE OR
MANIFESTED BY LEGISLATIVE HISTORY, REPRESENT THE NATURAL BLEND OF THE
BASIC AXIOM-- THAT COURTS SHOULD CONSTRUE ALL LEGISLATIVE ENACTMENTS TO
GIVE THEM SOME MEANING-- WITH THE COMPROMISE ORIGINS OF SEC.
402(A)(23), SET FORTH ABOVE.  THIS BACKGROUND, WE THINK, PRECLUDES THE
MORE ADVENTURESOME READING THAT PETITIONERS AND THE DISTRICT COURT
WOULD GIVE THE STATUTE.  SEE N. 17, SUPRA.  THIS READING IS ALSO
BUTTRESSED BY THE FACT THAT THIS CONSTRUCTION HAS BEEN PLACED ON THE
STATUTE BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.  /19/
WHILE, IN VIEW OF CONGRESS' FAILURE TO TRACK THE ADMINISTRATION
PROPOSALS AND ITS SUBSTITUTION WITHOUT COMMENT OF THE PRESENT
COMPROMISE SECTION, HEW'S CONSTRUCTION COMMANDS LESS THAN THE USUAL
DEFERENCE THAT MAY BE ACCORDED AN ADMINISTRATIVE INTERPRETATION BASED
ON ITS EXPERTISE, IT IS ENTITLED TO WEIGHT AS THE ATTEMPT OF AN
EXPERIENCED AGENCY TO HARMONIZE AN OBSCURE ENACTMENT WITH THE BASIC
STRUCTURE OF A PROGRAM IT ADMINISTERS.  CF. ZUBER V. ALLEN, 396 U.S.
168, 192 (1969); UDALL V. TALLMAN, 380 U.S. 1 (1965). 

        D 

WHILE THE APPLICATION OF THE STATUTE TO THE NEW YORK PROGRAM IS BY
NO MEANS SIMPLE, WE THINK THE EVIDENCE ADDUCED SUPPORTS THE ULTIMATE
FINDING OF THE DISTRICT COURT, UNQUESTIONED BY THE COURT OF APPEALS,
THAT NEW YORK HAS, IN EFFECT, IMPERMISSIBLY LOWERED ITS STANDARD OF
NEED BY ELIMINATING ITEMS THAT WERE INCLUDED PRIOR TO THE ENACTMENT OF
SEC. 402(A)(23). 

PRIOR TO MARCH 31, 1969, NEW YORK COMPUTED ITS STANDARD OF NEED ON
AN INDIVIDUALIZED BASIS.  SCHEDULES EXISTED SHOWING THE COST OF
PARTICULAR ITEMS OF RECURRING NEED, FOR EXAMPLE, FOOD AND CLOTHING
REQUIRED BY CHILDREN AT GIVEN AGES.  PAYMENTS OF "RECURRING" GRANTS
WERE MADE TO FAMILIES BASED ON THE NUMBER OF CHILDREN PER HOUSEHOLD AND
THE AGE OF THE OLDEST CHILD.  ADDITIONAL PAYMENTS, DESIGNATED AS
"SPECIAL NEEDS GRANTS," WERE ALSO MADE.  UNDER AN EXPERIMENT IN NEW
YORK CITY INSTITUTED AUGUST 27, 1968, MANY ALLOWANCES FOR SPECIAL NEEDS
WERE ELIMINATED AND A FLAT GRANT OF $100 PER PERSON WAS SUBSTITUTED. 

CHAPTER 184 OF THE SESSION LAWS, THE PRESENT 131-A, RADICALLY
ALTERED THE NEW YORK APPROACH.  IN LIEU OF INDIVIDUALIZED GRANTS FOR
"RECURRING" NEEDS TO BE SUPPLEMENTED BY SPECIAL GRANTS OR THE FLAT $100
GRANT, NEW YORK ADOPTED A SYSTEM FIXING MAXIMUM ALLOWANCES PER FAMILY
BASED ON THE NUMBER OF INDIVIDUALS PER HOUSEHOLD.  THE MAXIMUM DOLLAR
AMOUNTS WERE ESTABLISHED BY ASCERTAINING "(THE MEAN AGE OF THE OLDEST
CHILD IN EACH SIZE FAMILY."  SEE MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 9-10.  WHILE THESE FAMILY
MAXIMUMS ARE EXCLUSIVE OF RENT AND FUEL COSTS, THE DISTRICT COURT FOUND
THAT "(SPECIAL GRANTS WERE SEEMINGLY NOT INCLUDED IN THESE
COMPUTATIONS.  NO ATTEMPT WAS MADE TO AVERAGE THEM OUT ACROSS THE STATE
AND THEN TO ADD THAT FIGURE TO THAT OF THE BASIC RECURRING GRANT."  304
F.SUPP.,AT 1368. 

THE IMPACT OF THE NEW SYSTEM HAS BEEN TO REDUCE SUBSTANTIALLY
BENEFITS PAID TO FAMILIES OF THESE PETITIONERS AND OF THOSE SIMILARLY
SITUATED, AND TO DECREASE BENEFITS TO NEW YORK CITY RECIPIENTS BY
ALMOST $40,000,000.  304 F.SUPP.,AT 1369-1370.  THE EFFECT OF THE NEW
PROGRAM ON UPSTATE CASES IS LESS SEVERE, WITH GAINS TO SOME FAMILIES
APPARENTLY CANCELLING OUT LOSSES TO OTHERS, BUT THE NET EFFECT IS A
DRASTIC REDUCTION IN OVERALL PAYMENTS SINCE NEW YORK CITY RECIPIENTS
COMPOSE APPROXIMATELY 72% OF THE STATE'S WELFARE CLIENTELE.  304
F.SUPP.,AT 1369. 

        E 

NOTWITHSTANDING THIS $40,000,000 DECREASE IN WELFARE PAYMENTS AFTER
ADJUSTMENT FOR INCREASES IN THE COST OF LIVING, THE STATE ARGUES THAT
THE PRESENT SEC. 131-A REPRESENTS NEITHER AN ATTEMPT TO CIRCUMVENT
FEDERAL REQUIREMENTS NOR A REDUCTION IN THE CONTENT OF ITS FORMER
STANDARD.  THE CONVERSION TO A FLAT GRANT MAXIMUM SYSTEM IS JUSTIFIED
AS AN ADVANCE IN ADMINISTRATIVE EFFICIENCY.  /20/ 

WHILE SEC. 402(A)(23) DOES NOT PREVENT THE STATES FROM PURSUING WHAT
IS BEYOND DISPUTE THE LAUDABLE GOAL OF ADMINISTRATIVE EFFICIENCY, /21/
WE THINK CONGRESS HAS FORECLOSED THEM FROM ACHIEVING THIS PURPOSE AT
THE EXPENSE OF SIGNIFICANTLY REDUCING THE CONTENT OF THEIR STANDARD OF
NEED.  THE FINDINGS AND CONCLUSIONS OF THE DISTRICT COURT, UNDISTURBED
BY THE COURT OF APPEALS AND SUPPORTED BY THE RECORD, CLEARLY
DEMONSTRATE THAT A SIGNIFICANT REDUCTION HAS HERE OCCURRED.  IT IS
CONCEDED BY RESPONDENTS THAT THE PRESENT PROGRAM DOES NOT INCLUDE
ALLOWANCES FOR THE ITEMS FORMERLY COVERED BY THE SO-CALLED "SPECIAL"
GRANTS. 

WE HAVE NO OCCASION TO DECIDE ON THE RECORD BEFORE US WHETHER WE
AGREE WITH THAT PART OF HEW'S INTERPRETATION OF SEC. 402(A)(23) THAT
MIGHT APPROVE ELIMINATION OF GRANTS FOR PARTICULAR NEEDS, WITHOUT SOME
AVERAGING OR OTHER PROVISION THEREFOR SUCH AS DIRECT PAYMENTS TO THE
PROVIDER OF SERVICES.  IT SUFFICES IN THIS CASE THAT PARTICULAR ITEMS,
SUCH AS LAUNDRY AND TELEPHONES, HAD FORMERLY BEEN DEEMED ESSENTIAL BY
NEW YORK, AND WERE CONSIDERED REGULAR RECURRING EXPENSES TO A
SIGNIFICANT NUMBER OF NEW YORK CITY WELFARE RESIDENTS.  WE NEED LOOK NO
FARTHER THAN THE STATE SOCIAL SERVICE DEPARTMENT'S OWN REGULATIONS AND
THE ACTION TAKEN BY THE STATE ADMINISTRATORS IN PROVIDING THE $25 PER
QUARTER CYCLICAL GRANT TO CITY RESIDENTS IN THE 1968 PILOT PROJECT. 

THUS, THE STATE SOCIAL SERVICE DEPARTMENT'S OWN REGULATIONS
PROVIDED: 

"AN INDIVIDUAL OR FAMILY SHALL BE DEEMED 'IN NEED' WHEN A BUDGET
DEFICIT EXISTS OR WHEN THE BUDGET SURPLUS IS INADEQUATE TO MEET ONE OR
MORE NONBUDGETED SPECIAL NEEDS REQUIRED BY THE CASE CIRCUMSTANCES AND
INCLUDED IN THE STANDARDS OF ASSISTANCE."  18 NYCRR 353.1(C).  /22/
THIS PERSUASIVE, IF NOT CONCLUSIVE, EVIDENCE OF WHAT CONSTITUTED THE
STANDARD OF NEED IS FURTHER SUPPORTED BY TESTIMONY OF THE
ADMINISTRATORS OF NEW YORK'S WELFARE PROGRAM TO THE EFFECT THAT THESE
GRANTS COVERED COSTS FOR ESSENTIALS OF LIFE FOR NUMEROUS WELFARE
RESIDENTS IN NEW YORK CITY. 

        F 

WE REACH OUR CONCLUSIONS WITHOUT RELYING ON THE FINDING MADE BY THE
COURT BELOW THAT IN SEC. 131-A NEW YORK WAS ATTEMPTING TO CONSTRICT ITS
WELFARE PAYMENTS.  SPECULATION AS TO LEGISLATIVE AND EXECUTIVE MOTIVE
IS TO BE SHUNNED.  SECTION 402(A)(23) INVALIDATES ANY STATE PROGRAM
THAT SUBSTANTIALLY ALTERS THE CONTENT OF THE STANDARD OF NEED IN SUCH A
WAY THAT IT IS LESS THAN IT WAS PRIOR TO THE ENACTMENT OF SEC.
402(A)(23), UNLESS A STATE CAN DEMONSTRATE THAT THE ITEMS FORMERLY
INCLUDED NO LONGER CONSTITUTED PART OF THE REALITY OF EXISTENCE FOR THE
MAJORITY OF WELFARE RECIPIENTS.  WE DO NOT, OF COURSE, HOLD THAT NEW
YORK MAY NOT, CONSISTENTLY WITH THE FEDERAL STATUTES, CONSOLIDATE ITEMS
ON THE BASIS OF STATISTICAL AVERAGES.  OBVIOUSLY SUCH AVERAGING MAY
AFFECT SOME FAMILIES ADVERSELY AND BENEFIT OTHERS.  MOREOVER, IT IS
CONCEIVABLE THAT THE NET PAYOUT, ASSUMING NO CHANGE IN THE LEVEL OF
BENEFITS, MAY BE SOMEWHAT LESS UNDER A STREAMLINED PROGRAM.  PROVIDING
ALL FACTORS IN THE OLD EQUATION ARE ACCOUNTED FOR AND FAIRLY PRICED AND
PROVIDING THE CONSOLIDATION ON A STATISTICAL BASIS REFLECTS A FAIR
AVERAGING, A STATE MAY, OF COURSE, CONSISTENTLY WITH SEC. 402(A)(23)
REDEFINE ITS METHOD FOR DETERMINING NEED.  ASTATE MAY, MOREOVER, AS WE
HAVE NOTED, ACCOMMODATE ANY INCREASES IN ITS STANDARD BY REASON OF
"COST-OF-LIVING" FACTORS TO ITS BUDGET BY REDUCING ITS LEVEL OF
BENEFITS.  WHAT IS AT THE HEART OF THIS DISPUTE IS THE ELIMINATION OF
SPECIAL GRANTS IN THE NEW YORK PROGRAM, NOT THE SYSTEM OF MAXIMUM
GRANTS BASED ON AVERAGE AGE.  LEST THERE BE UNCERTAINTY WE ALSO
REITERATE THAT NEW YORK IS NOT FORECLOSED FROM ACCOUNTING FOR BASIC AND
RECURRING ITEMS OF NEED FORMERLY SUBSUMED IN THE SPECIAL GRANT CATEGORY
BY AN AVERAGING SYSTEM LIKE THAT ADOPTED IN THE 1968 NEW YORK
EXPERIMENT WITH CYCLICAL GRANTS. 

        III 

NEW YORK IS, OF COURSE, IN NO WAY PROHIBITED FROM USING ONLY STATE
FUNDS ACCORDING TO WHATEVER PLAN IT CHOOSES, PROVIDING IT VIOLATES NO
PROVISION OF THE CONSTITUTION.  IT FOLLOWS, HOWEVER, FROM OUR
CONCLUSION THAT NEW YORK'S PROGRAM IS INCOMPATIBLE WITH SEC.
402(A)(23), THAT PETITIONERS ARE ENTITLED TO DECLARATORY RELIEF AND AN
APPROPRIATE INJUNCTION BY THE DISTRICT COURT AGAINST THE PAYMENT OF
FEDERAL MONIES ACCORDING TO THE NEW SCHEDULES, SHOULD THE STATE NOT
DEVELOP A CONFORMING PLAN WITHIN A REASONABLE PERIOD OF TIME. 

WE HAVE CONSIDERED AND REJECTED THE ARGUMENT THAT A FEDERAL COURT IS
WITHOUT POWER TO REVIEW STATE WELFARE PROVISIONS OR PROHIBIT THE USE OF
FEDERAL FUNDS BY THE STATES IN VIEW OF THE FACT THAT CONGRESS HAS
LODGED IN THE DEPARTMENT OF HEW THE POWER TO CUT OFF FEDERAL FUNDS FOR
NONCOMPLIANCE WITH STATUTORY REQUIREMENTS.  WE ARE MOST RELUCTANT TO
ASSUME CONGRESS HAS CLOSED THE AVENUE OF EFFECTIVE JUDICIAL REVIEW TO
THOSE INDIVIDUALS MOST DIRECTLY AFFECTED BY THE ADMINISTRATION OF ITS
PROGRAM.  CF. ABBOTT LABORATORIES V. GARDNER, 387 U.S. 136 (1967);
ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS V. CAMP, ANTE, P.
150; BARLOW V. COLLINS, ANTE, P. 159.  WE ADHERE TO KING V. SMITH, 392
U.S. 309 (1968), WHICH IMPLICITLY REJECTED THE ARGUMENT THAT THE
STATUTORY PROVISIONS FOR HEW REVIEW OF PLANS SHOULD BE READ TO CURTAIL
JUDICIAL RELIEF AND HELD ALABAMA'S "SUBSTITUTE FATHER" REGULATION TO BE
INCONSISTENT WITH THE FEDERAL STATUTE.  WHILE KING DID NOT ADVERT
SPECIFICALLY TO THE REMEDIAL PROBLEM, THE UNARTICULATED PREMISE WAS
THAT THE STATE HAD ALTERNATIVE CHOICES OF ASSUMING THE ADDITIONAL COST
OF PAYING BENEFITS TO FAMILIES WITH SUBSTITUTE FATHERS OR NOT USING
FEDERAL FUNDS TO PAY WELFARE BENEFITS ACCORDING TO A PLAN THAT WAS
INCONSISTENT WITH FEDERAL REQUIREMENTS. 

THE PRAYER IN THE DISTRICT COURT IN SMITH V. KING, AS IN THE CASE
BEFORE US, WAS FOR DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE
ENFORCEMENT OF THE INVALID PROVISION.  277 F.SUPP.  31 (D.C.M.D. ALA.
1967).  WE SEE NO JUSTIFICATION IN PRINCIPLE FOR DRAWING A DISTINCTION
BETWEEN INVALIDATING A SINGLE NONCONFORMING PROVISION OR AN ENTIRE
PROGRAM.  IN BOTH CIRCUMSTANCES FEDERAL FUNDS ARE BEING ALLOCATED AND
PAID IN A MANNER CONTRARY TO THAT INTENDED BY CONGRESS.  IN KING THE
WITHHOLDING OF BENEFITS BASED ON THE INVALID STATE REGULATION RESULTED
IN OVERPAYMENTS TO SOME RECIPIENTS, ASSUMING A CONSTANT STATE WELFARE
BUDGET, AND A CORRESPONDING MISALLOCATION OF MATCHING FEDERAL
RESOURCES.  IN THE CASE BEFORE US, NONCOMPLIANCE WITH SEC. 402(A)(23)
MAY RESULT IN LIMITING THE WELFARE ROLLS UNDULY AND THUS CHANNELING THE
MATCHING FEDERAL GRANTS IN A WAY NOT INTENDED BY CONGRESS.  WE MAY ALSO
ASSUME THAT CONGRESS WOULD NOT COUNTENANCE THE CIRCUMNAVIGATION OF THE
POLITICAL CONSEQUENCES OF SEC. 402(A)(23), SEE PART II C, SUPRA, BY
PERMITTING STATES TO USE FEDERAL FUNDS WHILE OBSCURING THE ACTUAL
EXTENT TO WHICH THEIR PROGRAMS FALL SHORT OF THE IDEAL. 

UNLIKE KING V. SMITH, HOWEVER, ANY INCREMENTAL COST TO THE STATE,
ASSUMING A DESIRE TO COMPLY WITH SEC. 402(A)(23), IS MASSIVE; NOR IS
THERE A DISCRETE AND SEVERABLE PROVISION WHOSE ENFORCEMENT CAN BE
PROHIBITED.  ACCORDINGLY, WE REMAND THE CASE TO THE DISTRICT COURT TO
FIX A DATE THAT WILL AFFORD NEW YORK AN OPPORTUNITY TO REVISE ITS
PROGRAM IN ACCORDANCE WITH THE REQUIREMENTS OF SEC. 402(A)(23) IF THE
STATE WISHES TO DO SO.  THE DISTRICT COURT SHALL RETAIN JURISDICTION TO
REVIEW, TAKING INTO ACCOUNT THE VIEWS OF HEW SHOULD IT CARE TO OFFER
ITS RECOMMENDATIONS, ANY REVISED PROGRAM ADOPTED BY THE STATE, OR,
SHOULD NEW YORK CHOOSE NOT TO SUBMIT A REVAMPED PROGRAM BY THE
DETERMINED DATE, ISSUE ITS ORDER RESTRAINING THE FURTHER USE OF FEDERAL
MONIES PURSUANT TO THE PRESENT STATUTE. 

IN CONCLUSION, WE ADD SIMPLY THIS.  WHILE WE VIEW WITH CONCERN THE
ESCALATING INVOLVEMENT OF FEDERAL COURTS IN THIS HIGHLY COMPLICATED
AREA OF WELFARE BENEFITS, /23/  ONE THAT SHOULD BE FORMALLY PLACED
UNDER THE SUPERVISION OF HEW, AT LEAST IN THE FIRST INSTANCE, WE FIND
NOT THE SLIGHTEST INDICATION THAT CONGRESS MEANT TO DEPRIVE FEDERAL
COURTS OF THEIR TRADITIONAL JURISDICTION TO HEAR AND DECIDE FEDERAL
QUESTIONS IN THIS FIELD.  IT IS, OF COURSE, NO PART OF THE BUSINESS OF
THIS COURT TO EVALUATE, APART FROM FEDERAL CONSTITUTIONAL OR STATUTORY
CHALLENGE, THE MERITS OR WISDOM OF ANY WELFARE PROGRAMS, WHETHER STATE
OR FEDERAL, IN THE LARGE OR IN THE PARTICULAR.  IT IS, ON THE OTHER
HAND, PECULIARLY PART OF THE DUTY OF THIS TRIBUNAL, NO LESS IN THE
WELFARE FIELD THAN IN OTHER AREAS OF THE LAW, TO RESOLVE DISPUTES AS TO
WHETHER FEDERAL FUNDS ALLOCATED TO THE STATES ARE BEING EXPENDED IN
CONSONANCE WITH THE CONDITIONS THAT CONGRESS HAS ATTACHED TO THEIR
USE.  AS MR. JUSTICE CARDOZO STATED, SPEAKING FOR THE COURT IN
HELVERING V. DAVIS, 301 U.S. 619, 645 (1937):  "WHEN (FEDERAL) MONEY IS
SPENT TO PROMOTE THE GENERAL WELFARE, THE CONCEPT OF WELFARE OR THE
OPPOSITE IS SHAPED BY CONGRESS, NOT THE STATES."  CF. LASSEN V. ARIZONA
EX REL. ARIZONA HIGHWAY DEPT., 385 U.S. 458 (1967). 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

    IT IS SO ORDERED. 

/1/  A SEPARATE ACTION WAS SUBSEQUENTLY BROUGHT AGAIN CHALLENGING
THE DISPARITY IN PAYMENTS BETWEEN NEW YORK AND NASSAU COUNTY WELFARE
RECIPIENTS.  SEE ROTHSTEIN V. WYMAN, 303 F.SUPP.  339 (D.C.S.D.N.Y.
1969), PROB.  JURIS.  NOTED, POST, P. 903. 

/2/  JUDGE HAYS EXPRESSED THE VIEW: "SINCE THE SINGLE JUDGE AT NO
TIME HAD JURISDICTION OVER THE CONSTITUTIONAL CLAIM THERE WAS NEVER A
CLAIM BEFORE HIM TO WHICH THE STATUTORY CLAIM COULD HAVE BEEN PENDENT. 
IF THE THREE-JUDGE COURT HAD ATTEMPTED TO GIVE THE SINGLE JUDGE POWER
TO ADJUDICATE THE STATUTORY CLAIM, IT COULD NOT HAVE DONE SO, SINCE
WITH THE DISSOLUTION OF THE THREE-JUDGE COURT THE STATUTORY CLAIM WAS
NO LONGER PENDENT TO ANY CLAIM AT ALL, MUCH LESS TO ANY CLAIM OVER
WHICH THE SINGLE JUDGE COULD EXERCISE ADJUDICATORY POWER."  414 F.2D,AT
175. 

/3/  EVEN IF PORESKY IS READ SIMPLY AS A RESTATEMENT OF THE TRUISM
THAT A COURT ALWAYS HAS JURISDICTION TO DETERMINE ITS OWN JURISDICTION,
IN VIEW OF THE NOW SETTLED RULE THAT THE INSUBSTANTIALITY OF A FEDERAL
QUESTION IS THE OCCASION FOR A JURISDICTIONAL DISMISSAL AS OPPOSED TO A
DISMISSAL ON THE MERITS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF
CAN BE GRANTED, IT STILL LENDS SUPPORT TO THE PROPOSITION THAT
JURISDICTION IS VESTED AT THE OUTSET IN THE DISTRICT COURT AND NOT THE
THREE-JUDGE PANEL. 

/4/  WE INTIMATE NO VIEW AS TO WHETHER THE SITUATION MIGHT HAVE BEEN
DIFFERENT HAD THE CONSTITUTIONAL CLAIM BECOME MOOT BEFORE THE DISTRICT
COURT HAD INVESTED SUBSTANTIAL TIME IN ITS RESOLUTION. 

/5/  SEE UNITED MINE WORKERS V. GIBBS, 383 U.S.,AT 725, WHERE THE
COURT SAID: 

"(IF, CONSIDERED WITHOUT REGARD TO THEIR FEDERAL OR STATE CHARACTER,
A PLAINTIFF'S CLAIMS ARE SUCH THAT HE WOULD ORDINARILY BE EXPECTED TO
TRY THEM ALL IN ONE JUDICIAL PROCEEDING, THEN, ASSUMING SUBSTANTIALITY
OF THE FEDERAL ISSUES, THERE IS POWER IN FEDERAL COURTS TO HEAR THE
WHOLE." 

/6/  A PERSUASIVE ANALOGY IS TO BE FOUND IN THE WELL-SETTLED RULE
THAT A FEDERAL COURT DOES NOT LOSE JURISDICTION OVER A DIVERSITY ACTION
WHICH WAS WELL FOUNDED AT THE OUTSET EVEN THOUGH ONE OF THE PARTIES MAY
LATER CHANGE DOMICILE OR THE AMOUNT RECOVERED FALLS SHORT OF $10,000. 
SEE SMITH V. SPERLING, 354 U.S. 91, 93 N. 1 (1957); ST. PAUL MERCURY
INDEMNITY CO. V. RED CAB CO., 303 U.S. 283, 289-290 (1938); SMITHERS V.
SMITH, 204 U.S. 632 (1907); SEE GENERALLY C. WRIGHT, FEDERAL COURTS
SEC. 33, PP. 93-94 (1963). 

/7/  SINCE WE CONCLUDE THAT THE DISTRICT COURT PROPERLY EXERCISED
ITS PENDENT JURISDICTION, WE HAVE NO OCCASION TO CONSIDER WHETHER, AS
URGED BY PETITIONERS, THIS STATUTORY CLAIM SATISFIES THE $10,000 AMOUNT
IN-CONTROVERSY REQUIREMENT OF THE GENERAL FEDERAL JURISDICTION
PROVISION, 28 U.S.C. 1331, OR WHETHER IT COULD BE MAINTAINED UNDER 28
U.S.C. 1343(3), WHICH CONTAINS NO AMOUNT-IN-CONTROVERSY LIMITATION, AS
AN ACTION "(TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW .
. . OF ANY RIGHT, PRIVILEGE OR IMMUNITY SECURED BY . . . ANY ACT OF
CONGRESS PROVIDING FOR EQUAL RIGHTS OF CITIZENS . . . . "  SEE KING V.
SMITH, 392 U.S.,AT 312 N. 3; SEE GENERALLY NOTE, FEDERAL JUDICIAL
REVIEW OF STATE WELFARE PRACTICES, 67 COL.L.REV.  84 (1967). 

/8/  IN ORDER TO EVALUATE THIS ARGUMENT, IT IS NECESSARY TO
UNDERSTAND THE MECHANISM BY WHICH HEW REVIEWS STATE PLANS UNDER THE
AFDC PROGRAM.  STATES DESIRING TO OBTAIN FEDERAL FUNDS AVAILABLE FOR
AFDC PROGRAMS ARE REQUIRED TO SUBMIT A PLAN TO THE SECRETARY OF HEW FOR
HIS APPROVAL.  42 U.S.C. 601 (1964 ED. SUPP. IV).  ONCE INITIALLY
APPROVED, FEDERAL FUNDS ARE PROVIDED TO THE STATE UNTIL A CHANGE IN ITS
PLAN IS FORMALLY DISAPPROVED.  42 U.S.C. 604(A) (1964 ED., SUPP. IV). 
THE SECRETARY MUST AFFORD THE STATE NOTICE OF AN ALLEGED NONCOMPLIANCE
WITH FEDERAL REQUIREMENTS AND AN OPPORTUNITY FOR A HEARING.  IBID.  IF,
AFTER NOTICE AND HEARING, THE SECRETARY FINDS THAT THE STATE DOES NOT
COMPLY WITH THE FEDERAL REQUIREMENTS, HE IS DIRECTED TO MAKE A TOTAL OR
PARTIAL CUTOFF OF FEDERAL FUNDS TO THE STATE.  IBID.  42 U.S.C. 1316
(1964 ED., SUPP. IV) DESCRIBES THE ADMINISTRATIVE PROCEDURES THAT THE
SECRETARY MUST AFFORD A STATE BEFORE CUTTING OFF FUNDS, AND ALSO
PROVIDES FOR REVIEW IN THE COURTS OF APPEALS OF THE SECRETARY'S ACTION
AT THE BEHEST OF THE STATE.  WHETHER HEW COULD PROVIDE A MECHANISM BY
WHICH WELFARE RECIPIENTS COULD THEORETICALLY GET RELIEF IS IMMATERIAL. 
IT HAS NOT DONE SO, WHICH MEANS THERE IS NO BASIS FOR THE REFUSAL OF
FEDERAL COURTS TO ADJUDICATE THE MERITS OF THESE CLAIMS. 

/9/  AS WE OBSERVED IN SOUTHWESTERN SUGAR & MOLASSES CO., INC. V.
RIVER TERMINALS CORP., 360 U.S. 411, 420 (1959), THAT AN ISSUE IS "ONE
APPROPRIATE ULTIMATELY FOR JUDICIAL RATHER THAN ADMINISTRATIVE
RESOLUTION . . . DOES NOT MEAN THAT THE COURTS MUST THEREFORE DENY
THEMSELVES THE ENLIGHTENMENT WHICH MAY BE HAD FROM A CONSIDERATION OF
THE RELEVANT . . . FACTS WHICH THE ADMINISTRATIVE AGENCY CHARGED WITH
REGULATION OF THE TRANSACTION . . . IS PECULIARLY WELL EQUIPPED TO
MARSHAL AND INITIALLY TO EVALUATE."  SEE ALSO FAR EAST CONFERENCE V.
UNITED STATES, 342 U.S. 570, 574-575 (1952). 

/10/  THE FOUR CATEGORICAL ASSISTANCE PROGRAMS ARE THE OLD AGE
ASSISTANCE (OAA), 42 U.C.S. 301 ET SEQ.; AID TO FAMILIES WITH DEPENDENT
CHILDREN (AFDC), 42 U.S.C. 601 ET SEQ.; AID TO THE BLIND (AB), 42
U.S.C. 1201 ET SEQ.; AID FOR THE PERMANENTLY AND TOTALLY DISABLED
(APTD), 42 U.S.C. 1351 ET SEQ. 

/11/  SEE LAMPTON V. BONIN, 299 F.SUPP.  336, 304 F.SUPP.  1384
(D.C.E.D. LA. 1969); JEFFERSON V. HACKNEY, 304 F.SUPP.  1332 (D.C.N.D.
TEX. 1969); WILLIAMS V. DANDRIDGE, 297 F.SUPP.  450 (1968 AND 1969),
PROB.  JURIS.NOTED, 396 U.S. 811 (1969), DECIDED THIS DATE, POST, P.
471. 

/12/  ACCORDING TO INFORMATION SUPPLIED BY HEW IN 1967, REPORTED IN
THE EXPLANATION OF PROVISIONS OF H.R. 5710, P. 36, $3,100 ANNUALLY FOR
A FAMILY OF FOUR MARKED THE "POVERTY" LEVEL.  ACCORDING TO THE REPORT,
"ALTHOUGH A FEW STATES DEFINE NEED AT OR ABOVE THE POVERTY LEVEL, NO
STATE PAYS AS MUCH AS THAT AMOUNT."  IT FURTHER APPEARS THAT AT THAT
TIME 33 STATES PROVIDED LESS THAN THEIR AVOWED STANDARD OF NEED WHICH
FREQUENTLY FELL SHORT OF THE POVERTY MARK.  WHILE NEW YORK PURPORTS TO
HAVE PAID ITS FULL STANDARD, IT WOULD THUS APPEAR NOT TO HAVE PAID
ENOUGH TO TAKE A FAMILY OUT OF POVERTY.  SEE HEARINGS BEFORE THE HOUSE
COMMITTEE ON WAYS AND MEANS ON H.R. 5710, 90TH CONG., 1ST SESS., PT. 1,
P. 118 (1967). 

/13/  A MAXIMUM MAY EITHER BE FIXED IN RELATION TO THE NUMBER OF
PERSONS ON WELFARE, E.G., X DOLLARS PER CHILD, NO MATTER WHAT AGE, OR
IN TERMS OF A FAMILY, X DOLLARS PER FAMILY UNIT, IRRESPECTIVE OF THE
NUMBER OF PERSONS IN THE UNIT.  THIS LATTER PROCEDURE HAS BEEN
CHALLENGED ON EQUAL PROTECTION GROUNDS, SEE WILLIAMS V. DANDRIDGE,
SUPRA.  A "RATABLE REDUCTION" REPRESENTS A FIXED PERCENTAGE OF THE
STANDARD OF NEED THAT WILL BE PAID TO ALL RECIPIENTS.  IN THE EVENT
THAT THERE IS SOME INCOME THAT IS FIRST DEDUCTED, THE RATABLE REDUCTION
IS APPLIED TO THE AMOUNT BY WHICH THE INDIVIDUAL OR FAMILY INCOME FALLS
SHORT OF NEED. 

/14/  SEE SECS. 202(A), (C), (D), AND (E). 

/15/  SECRETARY GARDNER TESTIFIED: 

"THE HOUSE BILL DOES NOTHING TO IMPROVE THE LEVEL OF STATE PUBLIC
ASSISTANCE PAYMENTS.  AS THINGS STAND TODAY, THE STATES ARE REQUIRED TO
SET ASSISTANCE STANDARDS FOR NEEDY PERSONS IN ORDER TO DETERMINE
ELIGIBILITY-- BUT THEY NEED NOT MAKE THEIR ASSISTANCE PAYMENTS ON THE
BASIS OF THESE STANDARDS.  THE RESULT IS THAT WELFARE PAYMENTS ARE MUCH
TOO LOW IN A GOOD MANY STATES.  THAT IS A WIDELY ACCEPTED FACT AMONG
ALL WHO ARE CONCERNED WITH THESE PROGRAMS; INDEED IT IS PROBABLY THE
MOST WIDELY AGREED-UPON FACT AMONG WELFARE EXPERTS TODAY.     "WE
STRONGLY URGE YOU TO ADOPT THE ADMINISTRATION'S PROPOSAL REQUIRING
STATES TO MEET NEED IN FULL AS THEY DETERMINE IT IN THEIR OWN STATE
ASSISTANCE STANDARDS, AND TO UPDATE THESE STANDARDS PERIODICALLY TO
KEEP PACE WITH CHANGES IN THE COST OF LIVING."  HEARINGS BEFORE THE
SENATE COMMITTEE ON FINANCE ON H.R. 12080, 90TH CONG., 1ST SESS., PT.
1, P. 216 (1967).  SEE ALSO TESTIMONY OF UNDERSECRETARY COHEN.  ID., AT
255-259. 

/16/  THE COMMENT TO SEC. 213 IN THE SENATE REPORT READS: 

"SOCIAL SECURITY BENEFITS HAVE BEEN INCREASED 15 PERCENT ACROSS THE
BOARD BY THE COMMITTEE WITH A MINIMUM OF $70, FOR AN AVERAGE INCREASE
OF 20 PERCENT.  HOWEVER, THERE IS NO SIMILAR ACROSS-THE-BOARD INCREASE
IN THE AMOUNT OF BENEFITS PAYABLE TO AGED WELFARE RECIPIENTS.  . . . IN
VIEW OF THIS SITUATION AND THE NEED TO RECOGNIZE THAT THE INCREASE IN
THE COST OF LIVING SINCE THE LAST CHANGE MADE IN THE FEDERAL MATCHING
FORMULA IN 1965 ALSO IS DETRIMENTAL TO THE WELL-BEING OF THESE
RECIPIENTS, THE COMMITTEE IS RECOMMENDING A FURTHER CHANGE IN THE LAW. 
IT IS PROPOSED THAT THE LAW BE AMENDED TO PROVIDE THAT RECIPIENTS OF
OLD-AGE ASSISTANCE, AID TO THE BLIND, AND AID TO THE PERMANENTLY AND
TOTALLY DISABLED SHALL RECEIVE AN AVERAGE INCREASE IN ASSISTANCE PLUS
SOCIAL SECURITY OR ASSISTANCE ALONE (FOR THE RECIPIENTS WHO DO NOT
RECEIVE SOCIAL SECURITY BENEFITS) OF $7.50 A MONTH.  . . .

        .          .          .          . 

"TO ACCOMPLISH THESE CHANGES, THE STATES WOULD HAVE TO ADJUST THEIR
STANDARDS AND ANY MAXIMUMS IMPOSED ON PAYMENTS BY JULY 1, 1968, SO AS
TO PRODUCE AN AVERAGE INCREASE OF $7.50 FROM ASSISTANCE ALONE OR
ASSISTANCE AND SOCIAL SECURITY BENEFITS (OR OTHER INCOME).  ANY STATE
WHICH WISHES TO DO SO CAN CLAIM CREDIT FOR ANY INCREASE IT MAY HAVE
MADE SINCE DECEMBER 31, 1966.  THUS, NO STATE NEEDS TO MAKE AN INCREASE
TO THE EXTENT THAT IT HAS RECENTLY DONE SO. 

"STATES WOULD BE REQUIRED TO PRICE THEIR STANDARDS USED FOR
DETERMINING THE AMOUNT OF ASSISTANCE UNDER THE AFDC PROGRAM BY JULY 1,
1969 AND TO REPRICE THEM AT LEAST ANNUALLY THEREAFTER, ADJUSTING THE
STANDARDS AND ANY MAXIMUMS IMPOSED ON PAYMENTS TO REFLECT CHANGES IN
LIVING COSTS."  S.REP.  NO. 744, 90TH CONG., 1ST SESS., 169-170 (1967);
SEE ALSO ID., AT 293. 

/17/  THE DISTRICT COURT, WHILE DISCLAIMING ANY CONSTRUCTION OF SEC.
402(A)(23) THAT WOULD PRECLUDE CONVERTING TO A FLAT-GRANT SYSTEM BY
AVERAGING, CONCLUDED:  "(SECTION 402(A)(23) PRECLUDES A STATE FROM
MAKING CHANGES RESULTING IN EITHER REDUCED STANDARDS OF NEED OR LEVELS
OF PAYMENTS."  304 F.SUPP.,AT 1377.  AN EXTENSIVE ALTERATION IN THE
BASIC UNDERLYING STRUCTURE OF AN ESTABLISHED PROGRAM IS NOT TO BE
INFERRED FROM AMBIGIOUS LANGUAGE THAT IS NOT CLARIFIED BY LEGISLATIVE
HISTORY.  SUCH LEGISLATIVE HISTORY AS THERE IS SUGGESTS THE OPPOSITE. 
THE SENATE'S FAILURE TO ADOPT THE ADMINISTRATION'S PROPOSALS AND ITS
FAILURE TO PROVIDE FOR AFDC RECIPIENTS AN INCREASE LIKE THAT PROVIDED
FOR THE ADULT PROGRAM, NOTWITHSTANDING A PROPOSED AMENDMENT TO THAT
EFFECT BY SENATOR MCGOVERN, GIVES RISE TO AN INFERENCE, NOT NEGATIVED
BY THE NONCOMMITTAL AND UNILLUMINATING COMMENTS OF THE COMMITTEE, SEE
N. 16, SUPRA, THAT CONGRESS HAD NO SUCH PURPOSE.  THESE CONSIDERATIONS,
WE THINK, FORECLOSE THE BROAD CONSTRUCTION ADOPTED BY THE DISTRICT
COURT. 

/18/  WHILE IT MIGHT BE TECHNICALLY SAID THAT THERE WAS NO MAJORITY
HOLDING ON THE MERITS IN THE COURT OF APPEALS, THIS OVERLOOKS JUDGE
HAYS' PREFACE TO HIS DISCUSSION OF THE MERITS:  "ALTHOUGH WE ARE
PERSUADED THAT THE DISTRICT JUDGE HAD NO POWER TO ADJUDICATE THIS
ACTION, WE TURN TO A BRIEF DISCUSSION OF THE MERITS, SINCE OUR DECISION
DOES NOT REST SOLELY ON JURISDICTIONAL GROUNDS."  414 F.2D,AT 178. 
CHIEF JUDGE LUMBARD DISAVOWED REACHING THE MERITS BUT EXPRESSLY
DISAGREED WITH JUDGE FEINBERG.  414 F.2D,AT 181.  IN THESE
CIRCUMSTANCES, IT WOULD BE HYPERTECHNICAL TO CONCLUDE THAT THE MERITS
HAD NOT BEEN FACED AND DECIDED BELOW SO AS TO MAKE A REMAND DESIRABLE
PRIOR TO REVIEW AND DECISION BY THIS COURT.  CF. BARLOW V. COLLINS,
ANTE, P. 159. 

/19/  THE REGULATIONS AND EXPLANATIONS ARE SET FORTH IN THE
GOVERNMENT'S AMICUS MEMORANDUM. 

/20/  NEW YORK POINTS TO THE PREAMBLE TO SEC. 131-A WHICH SETS FORTH
AS ITS PURPOSE THE STREAMLINING OF ADMINISTRATION OF THE WELFARE GRANT
SYSTEM AND RELIES ON THAT PART OF THE HEW PROGRAM THAT INVITES THE
STATES TO ADOPT ADMINISTRATIVE PROGRAMS THAT CURTAIL UNNECESSARILY
BURDENSOME CALCULATIONS AND PAPERWORK. 

/21/  HEW'S POSITION, SET FORTH IN THE GOVERNMENT'S AMICUS
MEMORANDUM 12, SEEMS TO BE THAT UNDER ITS REGULATIONS, A "REDUCTION OF
CONTENT" DOES NOT NECESSARILY RESULT FROM "REDUCTIONS IN THE
RECOGNITION OF SPECIAL NEEDS."  THE DEPARTMENT HAS, HOWEVER, RECOGNIZED
BOTH ADMINISTRATIVELY AND IN THE GOVERNMENT'S MEMORANDUM THAT CERTAIN
"SPECIAL" NEEDS SHOULD PROPERLY BE REGARDED AS PART OF THE BASIC
STANDARD.  THUS, WHILE THE MEMORANDUM SUGGESTS THAT PAYMENTS FOR
SPECIAL DIETS OR SPECIAL ATTENDANTS ARE EXTRAORDINARY AND NOT
SUSCEPTIBLE OF AVERAGING, IT LEAVES OPEN THE QUESTION WHETHER NEW
YORK'S SPECIAL GRANTS HAVE NOT BEEN FOR RECURRING ITEMS WHICH ARE
BASIC. 

/22/  SEE ALSO FORMER 18 NYCRR 351.2, ASPECTS OF ELIGIBILITY. 
"SOCIAL INVESTIGATION SHALL COVER THE FOLLOWING ASPECTS OF INITIAL AND
CONTINUING ELIGIBILITY.  (B) NEED.  CONSIDERATION SHALL BE GIVEN TO
INDIVIDUAL AND FAMILY REQUIREMENTS FOR THE ITEMS OF BASIC MAINTENANCE
AND FOR ITEMS OF SPECIAL NEED.  . . . " 

/23/  THE JUDICIARY IS BEING CALLED UPON WITH INCREASING FREQUENCY
TO REVIEW NOT ONLY THE VIABILITY OF STATE WELFARE PROCEDURES, E.G.,
GOLDBERG V. KELLY, ANTE, P. 254, AND WHEELER V. MONTGOMERY, ANTE, P.
280; WYMAN V. JAMES, 303 F.SUPP.  935 (D.C.S.D.N.Y. 1969), PROB. 
JURIS.  NOTED, POST, P. 904 (INSPECTIONS OF THE HOUSE), BUT ALSO THE
SUBSTANCE AND STRUCTURE OF STATE PROGRAMS AND THE VALIDITY OF
INNUMERABLE INDIVIDUAL PROVISIONS.  SEE, E.G., SHAPIRO V. THOMPSON, 394
U.S. 618 (1969) (RESIDENCE REQUIREMENTS); KING V. SMITH, SUPRA
(SUBSTITUTE FATHER); SOLMAN V. SHAPIRO, 300 F.SUPP.  409, AFF'D, 396
U.S. 5 (1969); LEWIS V. STARK, 312 F.SUPP.  197 (D.C.N.D. CAL. 1968),
PROB.  JURIS.  NOTED, 396 U.S. 900 (1969) ("MAN-IN-THE-HOUSE RULE"). 
AT LEAST TWO OTHER ACTIONS HAVE BEEN INSTITUTED TO REVIEW VARIOUS
ASPECTS OF STATE PROGRAMS IN LIGHT OF THE STATUTORY PROVISIONS INVOLVED
IN THIS CASE.  SEE LAMPTON V. BONIN, 299 F.SUPP.  336, 304 F.SUPP. 
1384 (D.C.E.D. LA. 1969); JEFFERSON V. HACKNEY, 304 F.SUPP.  1332
(D.C.N.D. TEX. 1969); CF. ROTHSTEIN V. WYMAN, 303 F.SUPP.  339
(D.C.S.D.N.Y. 1969); DANDRIDGE V. WILLIAMS, DECIDED TODAY, POST, P.
471. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THIS OPINION OF THE COURT, I ADD A FEW WORDS. 

 I 

OUR LEADING CASE ON PENDENT JURISDICTION IS UNITED MINE WORKERS V.
GIBBS, 383 U.S. 715, 721-729.  IN LINE WITH GIBBS, THE COURTS BELOW
DISTINGUISHED BETWEEN THE POWER TO EXERCISE PENDENT JURISDICTION AND
THE DISCRETIONARY USE OF THAT POWER.  GIBBS ABANDONED THE "SINGLE CAUSE
OF ACTION" TEST WHICH HAD BEEN THE CONTROLLING STANDARD UNDER HURN V.
OURSLER, 289 U.S. 238, AND INSTEAD HELD THAT PENDENT JURISDICTION
EXISTS WHEN "(THE STATE AND FEDERAL CLAIMS . . . DERIVE FROM A COMMON
NUCLEUS OF OPERATIVE FACT" AND "IF, CONSIDERED WITHOUT REGARD TO THEIR
FEDERAL OR STATE CHARACTER, A PLAINTIFF'S CLAIMS ARE SUCH THAT HE WOULD
ORDINARILY BE EXPECTED TO TRY THEM ALL IN ONE JUDICIAL PROCEEDING." 
383 U.S.,AT 725. 

THE CLAIMS PRESENTED IN THIS CASE ATTACKED THE NEW YORK STATUTE ON
TWO GROUNDS.  THE CONSTITUTIONAL GROUND ATTACKED THE DIFFERENTIAL IN
THE LEVEL OF WELFARE PAYMENTS BETWEEN NEW YORK CITY AND NASSAU COUNTY. 
THE STATUTORY CLAIM ATTACKED THE STATE'S REDUCTION IN THE OVERALL LEVEL
OF PAYMENTS, ON THE GROUND THAT IT VIOLATED SEC. 402(A)(23) OF THE
SOCIAL SECURITY ACT, AS AMENDED, 81 STAT. 898, 42 U.S.C. 602(A)(23)
(1964 ED., SUPP. IV), WHICH REQUIRES STATES TO MAKE COST-OF-LIVING
ADJUSTMENTS IN THE AMOUNTS USED TO DETERMINE NEED.  NO ARGUMENT IS MADE
BY ANY OF THE PARTIES IN THIS CASE THAT THE THREE-JUDGE COURT DID NOT
HAVE PENDENT JURISDICTION OVER THE STATUTORY CLAIM.  THE SOLE BASIS FOR
RESPONDENTS' CONTENTION THAT PENDENT JURISDICTION IS NOT PRESENT IN
THIS CASE FLOWS FROM THE ACTION OF THE THREE-JUDGE COURT IN REMANDING
THE CASE TO THE SINGLE DISTRICT JUDGE "FOR SUCH FURTHER PROCEEDINGS AS
ARE APPROPRIATE." 

YET IF THE THREE-JUDGE COURT HAD PENDENT JURISDICTION OVER THE
STATUTORY CLAIM, IT HAD THE POWER TO DECIDE THAT CLAIM DESPITE THE
DISMISSAL OF THE CONSTITUTIONAL CLAIM.  THIS COURT HELD IN UNITED
STATES V. GEORGIA PUB. SERV. COMM'N, 371 U.S. 285, 287-288:  "ONCE (A
THREE-JUDGE COURT IS) CONVENED THE CASE CAN BE DISPOSED OF BELOW OR
HERE ON ANY GROUND, WHETHER OR NOT IT WOULD HAVE JUSTIFIED THE CALLING
OF A THREE-JUDGE COURT."  SEE ALSO FLORIDA LIME & AVOCADO GROWERS, INC.
V. JACOBSEN, 362 U.S. 73, 80-81.  THERE IS NO RULE, HOWEVER, HOLDING
THAT A THREE-JUDGE COURT IS REQUIRED TO DECIDE ALL THE CLAIMS PRESENTED
IN A SUIT PROPERLY BEFORE IT, ALTHOUGH THE PRACTICE OF A THREE-JUDGE
COURT REMANDING A CASE TO THE INITIAL DISTRICT JUDGE FOR FURTHER
PROCEEDINGS SEEMS TO HAVE BEEN LITTLE USED.  SEE LANDRY V. DALEY, 288
F.SUPP.  104. 

WHAT UNITED JUDGES HAYS AND LUMBARD WAS THE VIEW THAT, AS A MATTER
OF DISCRETION, THE DISTRICT COURT SHOULD HAVE REFUSED TO EXERCISE ITS
PENDENT JURISDICTION.  THE FACTORS OUTLINED IN GIBBS TO GUIDE THE
DISCRETIONARY EXERCISE OF PENDENT JURISDICTION ARE THOSE OF "JUDICIAL
ECONOMY, CONVENIENCE AND FAIRNESS TO LITIGANTS."  383 U.S.,AT 726. 

THE MAIN DISTINCTION BETWEEN THIS CASE AND GIBBS IS THAT THE PENDENT
CLAIM HERE WAS ONE OF FEDERAL RATHER THAN STATE LAW.  AND IT IS CLEAR
FROM THE OPINION IN GIBBS THAT THE FACTOR OF FEDERAL-STATE COMITY IS
HIGHLY RELEVANT IN DECIDING WHETHER OR NOT THE EXERCISE OF PENDENT
JURISDICTION IS PROPER.  THUS, THE COURT STATED:  "THERE MAY, ON THE
OTHER HAND, BE SITUATIONS IN WHICH THE STATE CLAIM IS SO CLOSELY TIED
TO QUESTIONS OF FEDERAL POLICY THAT THE ARGUMENT FOR EXERCISE OF
PENDENT JURISDICTION IS PARTICULARLY STRONG."  ID., AT 727.  SINCE THE
CLAIM INVOLVED HERE IS ONE OF FEDERAL LAW, THE REASONS FOR THE EXERCISE
OF PENDENT JURISDICTION ARE ESPECIALLY WEIGHTY, AND EXCEPTIONAL
CIRCUMSTANCES SHOULD BE REQUIRED TO PREVENT THE EXERCISE. 

MOREOVER, INCIDENT TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER,
PRIOR TO THE IMPANELING OF THE THREE-JUDGE COURT, DISTRICT JUDGE
WEINSTEIN HAD RECEIVED AND CONSIDERED SUBSTANTIAL TESTIMONY,
AFFIDAVITS, AND BRIEFS, SO THAT HE REQUIRED NO FURTHER HEARINGS OR
TESTIMONY PRIOR TO ISSUING HIS PRELIMINARY INJUNCTION OPINION THREE
DAYS AFTER THE CASE WAS REMANDED TO HIM.  IN LIGHT OF THIS FACT,
CONSIDERATIONS OF ECONOMY, CONVENIENCE, AND FAIRNESS ALL POINT TO THE
EXERCISE OF PENDENT JURISDICTION.  SEE MOORE V. NEW YORK COTTON EXCH.,
270 U.S. 593, 608-610. 

  II 

THE FACT THAT THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE IS
STUDYING THE RELATIONSHIP BETWEEN THE CONTESTED PROVISION OF THE NEW
YORK STATUTE AND THE RELEVANT SECTION OF THE SOCIAL SECURITY ACT IS
IRRELEVANT TO THE JUDICIAL PROBLEM.  ONCE A STATE'S AFDC PLAN IS
INITIALLY APPROVED BY THE SECRETARY OF HEW, FEDERAL FUNDS ARE PROVIDED
THE STATE UNTIL THE SECRETARY FINDS, AFTER NOTICE AND OPPORTUNITY FOR
HEARING TO THE STATE, THAT CHANGES IN THE PLAN OR THE ADMINISTRATION OF
THE PLAN ARE IN CONFLICT WITH THE FEDERAL REQUIREMENTS.  SOCIAL
SECURITY ACT SEC. 404(A), 49 STAT. 628, AS AMENDED, 81 STAT. 918, 42
U.S.C. 604(A) (1964 ED., SUPP. IV). 

THE STATUTORY PROVISIONS FOR REVIEW BY HEW OF STATE AFDC PLANS /1/
DO NOT PERMIT PRIVATE INDIVIDUALS, NAMELY, PRESENT OR POTENTIAL WELFARE
RECIPIENTS, TO INITIATE OR PARTICIPATE IN THESE COMPLIANCE HEARINGS. 
THUS, THERE IS NO SENSE IN WHICH THESE INDIVIDUALS CAN BE HELD TO HAVE
FAILED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES BY THE FACT THAT THERE
HAS BEEN NO HEW DETERMINATION ON THE COMPLIANCE OF A STATE STATUTE WITH
THE FEDERAL REQUIREMENTS.  IN THE PRESENT CASE, THAT PROBLEM WAS
DISCUSSED IN TERMS OF THE DISTRICT COURT'S DISCRETION TO REFUSE TO
EXERCISE PENDENT JURISDICTION.  THE ARGUMENT FOR SUCH A REFUSAL HAS
LITTLE TO COMMEND IT.  HEW HAS BEEN EXTREMELY RELUCTANT TO APPLY THE
DRASTIC SANCTION OF CUTTING OFF FEDERAL FUNDS TO STATES THAT ARE NOT
COMPLYING WITH FEDERAL LAW.  INSTEAD, HEW USUALLY SETTLES ITS
DIFFERENCES WITH THE OFFENDING STATES THROUGH INFORMAL NEGOTIATIONS. 
SEE NOTE, FEDERAL JUDICIAL REVIEW OF STATE WELFARE PRACTICES, 67
COL.L.REV.  84, 91-92 (1967).  /2/ 

WHETHER HEW COULD PROVIDE A MECHANISM BY WHICH WELFARE RECIPIENTS
COULD THEORETICALLY GET RELIEF IS IMMATERIAL.  IT HAS NOT DONE SO,
WHICH MEANS THERE IS NO BASIS FOR THE REFUSAL OF FEDERAL COURTS TO
ADJUDICATE THE MERITS OF THESE CLAIMS.  THEIR REFUSAL TO ACT MERELY
FORCES PLAINTIFFS INTO THE STATE COURTS WHICH CERTAINLY ARE NO MORE
COMPETENT TO DECIDE THE FEDERAL QUESTION THAN ARE THE FEDERAL COURTS. 
THE TERMS OF THE NEW YORK STATUTE ARE CLEAR, AND THERE IS NO WAY IN
WHICH A STATE COURT COULD INTERPRET THE CHALLENGED LAW IN A WAY THAT
WOULD AVOID THE STATUTORY CLAIM PRESSED HERE.     STATE PARTICIPATION
IN FEDERAL WELFARE PROGRAMS IS NOT REQUIRED.  STATES MAY CHOOSE NOT TO
APPLY FOR FEDERAL ASSISTANCE OR MAY JOIN IN SOME, BUT NOT ALL, OF THE
VARIOUS PROGRAMS, OF WHICH AFDC IS ONLY ONE.  THAT A STATE MAY CHOOSE
TO REFUSE TO COMPLY WITH THE FEDERAL REQUIREMENTS AT THE COST OF LOSING
FEDERAL FUNDS IS, OF COURSE, A RISK THAT ANY WELFARE PLAINTIFF TAKES. 
SUCH A RISK WAS INVOLVED IN KING V. SMITH, 392 U.S. 309, WHICH ATTACKED
ALABAMA'S "SUBSTITUTE FATHER"  REGULATION AS INCONSISTENT WITH THE
SOCIAL SECURITY ACT.  AS LONG AS A STATE IS RECEIVING FEDERAL FUNDS,
HOWEVER, IT IS UNDER A LEGAL REQUIREMENT TO COMPLY WITH THE FEDERAL
CONDITIONS PLACED ON THE RECEIPT OF THOSE FUNDS; AND INDIVIDUALS WHO
ARE ADVERSELY AFFECTED BY THE FAILURE OF THE STATE TO COMPLY WITH THE
FEDERAL REQUIREMENTS IN DISTRIBUTING THOSE FEDERAL FUNDS ARE ENTITLED
TO A JUDICIAL DETERMINATION OF SUCH A CLAIM.  KING V. SMITH, SUPRA.
THE DUTY OF A STATE, WHICH RECIEVES THIS FEDERAL BOUNTY TO COMPLY WITH
THE CONDITIONS IMPOSED BY CONGRESS WAS ADVERTED TO BY MR. JUSTICE
CARDOZO WHO WROTE FOR THE COURT IN STEWARD MACHINE CO. V. DAVIS, 301
U.S. 548, 597-598, SUSTAINING THE CONSTITUTIONALITY OF THE SOCIAL
SECURITY ACT: 

"ALABAMA IS SEEKING AND OBTAINING A CREDIT OF MANY MILLIONS IN FAVOR
OF HER CITIZENS OUT OF THE TREASURY OF THE NATION.  NOWHERE IN OUR
SCHEME OF GOVERNMENT-- IN THE LIMITATIONS EXPRESS OR IMPLIED OF OUR
FEDERAL CONSTITUTION-- DO WE FIND THAT SHE IS PROHIBITED FROM ASSENTING
TO CONDITIONS THAT WILL ASSURE A FAIR AND JUST REQUITAL FOR BENEFITS
RECEIVED." 

AS HE ALSO SAID, SPEAKING FOR THE COURT IN HELVERING V. DAVIS, 301
U.S. 619, 645, A COMPANION CASE TO STEWARD MACHINE CO.: 

"WHEN MONEY IS SPENT TO PROMOTE THE GENERAL WELFARE, THE CONCEPT OF
WELFARE OR THE OPPOSITE IS SHAPED BY CONGRESS, NOT THE STATES." 

WHERE THE SUIT INVOLVES AN ALLEGED CONFLICT BETWEEN THE STATE
REGULATION AND THE FEDERAL LAW, NEITHER THE UNITED STATES NOR HEW IS A
NECESSARY PARTY TO SUCH AN ACTION.  THE WRONG ALLEGED IS THE STATE'S
FAILURE TO COMPLY WITH FEDERAL REQUIREMENTS IN ITS USE OF FEDERAL
FUNDS, NOT HEW'S FAILURE TO WITHHOLD FUNDS FROM THE STATE. 

WHETHER HEW SHOULD WITHHOLD FEDERAL FUNDS IS ENTRUSTED TO IT, AT
LEAST AS A PRELIMINARY MATTER, BY SEC. 404(A) OF THE SOCIAL SECURITY
ACT.  /3/  WHETHER THE COURTS HAVE ANY ROLE TO PERFORM BEYOND RULING ON
AN ALLEGED CONFLICT BETWEEN THE STATE REGULATION AND THE FEDERAL LAW IS
A QUESTION WE NEED NOT REACH. 

/1/  THE PROCEDURE BY WHICH HEW REVIEWS STATE PLANS IS SET OUT IN
THE OPINION OF THE COURT, ANTE, AT 406 N. 8. 

/2/  SEE APPENDIX TO THIS CONCURRENCE. 

/3/  SECTION 404(A) OF THE ACT PROVIDES:  "IN THE CASE OF ANY STATE
PLAN FOR AID AND SERVICES TO NEEDY FAMILIES WITH CHILDREN WHICH HAS
BEEN APPROVED BY THE SECRETARY, IF THE SECRETARY, AFTER REASONABLE
NOTICE AND OPPORTUNITY FOR HEARING TO THE STATE AGENCY ADMINISTERING OR
SUPERVISING THE ADMINISTRATION OF SUCH PLAN, FINDS-- 

"(1) THAT THE PLAN HAS BEEN SO CHANGED AS TO IMPOSE ANY RESIDENCE
REQUIREMENT PROHIBITED BY SECTION 602(B) OF THIS TITLE, OR THAT IN THE
ADMINISTRATION OF THE PLAN ANY SUCH PROHIBITED REQUIREMENT IS IMPOSED,
WITH THE KNOWLEDGE OF SUCH STATE AGENCY, IN A SUBSTANTIAL NUMBER OF
CASES; OR 

"(2) THAT IN THE ADMINISTRATION OF THE PLAN THERE IS A FAILURE TO
COMPLY SUBSTANTIALLY WITH ANY PROVISION REQUIRED BY SECTION 602(A) OF
THIS TITLE TO BE INCLUDED IN THE PLAN; "(THE SECRETARY SHALL NOTIFY
SUCH STATE AGENCY THAT FURTHER PAYMENTS WILL NOT BE MADE TO THE STATE
(OR IN HIS DISCRETION, THAT PAYMENTS WILL BE LIMITED TO CATEGORIES
UNDER OR PARTS OF THE STATE PLAN NOT AFFECTED BY SUCH FAILURE) UNTIL
THE SECRETARY IS SATISFIED THAT SUCH PROHIBITED REQUIREMENT IS NO
LONGER SO IMPOSED, AND THAT THERE IS NO LONGER ANY SUCH FAILURE TO
COMPLY.  UNTIL HE IS SO SATISFIED HE SHALL MAKE NO FURTHER PAYMENTS TO
SUCH STATE (OR SHALL LIMIT PAYMENTS TO CATEGORIES UNDER OR PARTS OF THE
STATE PLAN NOT AFFECTED BY SUCH FAILURE)."  42 U.S.C. 604(A) (1964 ED.,
SUPP. IV). 

        APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING

        DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

        OFFICE OF THE SECRETARY

        WASHINGTON, D.C.  20201    DECEMBER 29, 1969

MR. GEORGE R. HOUSTON ASSOCIATE LIBRARIAN THE SUPREME COURT OF THE
UNITED STATES 1ST STREET & EAST CAPITOL, N.W. WASHINGTON, D.C.  20543
DEAR MR. HOUSTON: 

THIS RELATES TO YOUR CONVERSATION WITH ME ON DECEMBER 29 CONCERNING
STATEMENTS MADE IN THE LAST PARAGRAPH AND FOOTNOTE 55 ON PAGE 91 OF
VOLUME 67, COLUMBIA LAW REVIEW, JANUARY 1967, THAT THIS DEPARTMENT HAD
NOT RESPONDED TO A COMPLAINT AND PETITION FOR HEARING FILED BY GEORGIA
AND ARKANSAS CLAIMANTS. 

THE AUTHOR OF THE LAW REVIEW ARTICLE IS CORRECT.  THERE WAS, IN
FACT, NO RESPONSE TO THE REQUEST FOR A CONFORMITY HEARING.  HAD WE
REPLIED TO THE LETTER, HOWEVER, WE WOULD HAVE STATED, AS WE USUALLY DO
IN SUCH CASES, THAT CONFORMITY HEARINGS ARE HELD ONLY ON THE INITIATIVE
OF THIS DEPARTMENT WHEN A DETERMINATION HAS BEEN MADE THAT THE
DEFICIENCIES IN A STATE PROGRAM ARE SUCH THAT THE STATE, UNDER ITS
APPLICABLE LAWS, CANNOT, OR THE RESPONSIBLE OFFICIAL, WILL NOT,
VOLUNTARILY BRING THE STATE INTO COMPLIANCE. 

LETTERS SUCH AS THE ONE YOU REFER TO MAY, HOWEVER, TRIGGER ACTION BY
THIS DEPARTMENT WHEN THE CONTENTS BRING TO LIGHT CONFORMITY MATTERS OF
WHICH THE DEPARTMENT HAS NOT BEEN MADE AWARE . . . AS A RESULT OF ITS
OWN AUDITS. 

TO DATE THIS DEPARTMENT HAS INITIATED CONFORMITY HEARINGS IN
CONNECTION WITH THE STATE PLANS OF NEVADA AND CONNECTICUT.  IN VIEW OF
THE FACT THAT THE IMPOSITION OF SANCTIONS AGAINST STATES WHICH ARE
FOUND TO BE OUT OF CONFORMITY ARE MANDATORY, WE EXERT EVERY EFFORT AT
OUR COMMAND TO BRING A STATE INTO CONFORMITY WITHOUT THE NECESSITY OF A
FORMAL HEARING. 

IF YOU HAVE ANY FURTHER QUESTIONS, PLEASE LET US KNOW. 

VERY TRULY YOURS, 

ROBERT C. MARDIAN,

              GENERAL COUNSEL. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

PETITIONERS ARE NEW YORK WELFARE RECIPIENTS WHO CONTEND THAT
RECENTLY ENACTED NEW YORK WELFARE LEGISLATION WHICH REDUCES THE WELFARE
BENEFITS TO WHICH THEY ARE ENTITLED UNDER THE AID TO FAMILIES WITH
DEPENDENT CHILDREN (AFDC) PROGRAM IS INCONSISTENT WITH THE FEDERAL AFDC
REQUIREMENTS FOUND IN SEC. 402(A)(23) OF THE SOCIAL SECURITY ACT, 42
U.S.C. 602(A)(23) (1964 ED., SUPP. IV).  THE NEW YORK STATUTE THAT
PETITIONERS ARE CHALLENGING, SEC. 131-A OF THE NEW YORK SOCIAL SERVICES
LAW, WAS ENACTED ON MARCH 31, 1969.  LITTLE MORE THAN A WEEK LATER ON
APRIL 9, PETITIONERS FILED THEIR COMPLAINT CHALLENGING THIS STATUTE. 
THE COURT TODAY HOLDS THAT "THE DISTRICT COURT CORRECTLY EXERCISED ITS
DISCRETION BY PROCEEDING TO THE MERITS" OF PETITIONERS' CLAIM THAT THE
FEDERAL AND STATE STATUTES ARE INCONSISTENT.  ANTE, AT 401.  THE COURT
REACHES THIS CONCLUSION DESPITE THE FACT THAT THE DETERMINATION WHETHER
A STATE IS FOLLOWING THE FEDERAL AFDC REQUIREMENTS IS CLEARLY VESTED IN
THE FIRST INSTANCE NOT IN THE FEDERAL COURTS BUT IN THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE (HEW); DESPITE THE FACT THAT AT THE VERY
MOMENT THE DISTRICT COURT WAS DECIDING THE MERITS OF PETITIONERS' CLAIM
HEW WAS PERFORMING ITS STATUTORY DUTY OF REVIEWING THE NEW YORK
LEGISLATION TO DETERMINE IF IT WAS AT ODDS WITH SEC. 402(A)(23); AND
DESPITE THE FACT THAT IF HEW HAD BEEN GIVEN ENOUGH TIME TO MAKE A
DECISION WITH REGARD TO THE NEW YORK LEGISLATION, ITS DECISION MIGHT
HAVE OBVIATED THE NEED FOR THIS AND PERHAPS MANY OTHER LAWSUITS.  I
REGRET THAT I CANNOT JOIN AN OPINION WHICH FAILS TO GIVE DUE
CONSIDERATION TO THE UNMISTAKABLE INTENT OF THE SOCIAL SECURITY ACT TO
GIVE HEW PRIMARY JURISDICTION OVER THESE HIGHLY TECHNICAL AND DIFFICULT
WELFARE QUESTIONS, WHICH AFFIRMS WHAT IS TO ME A CLEAR ABUSE OF
DISCRETION BY THE DISTRICT COURT, AND WHICH PLUNGES THIS COURT AND
OTHER FEDERAL COURTS INTO AN EVER-INCREASING AND UNNECESSARY
INVOLVEMENT IN THE ADMINISTRATION OF THE NATION'S CATEGORICAL
ASSISTANCE PROGRAMS ADMINISTERED BY THE STATES.  /1/ 

UNDER THE AFDC PROGRAM, 42 U.S.C. 601-610 (1964 ED. AND SUPP. IV),
THE FEDERAL GOVERNMENT PROVIDES FUNDS TO A STATE ON THE CONDITION THAT
THE STATE'S PLAN FOR SUPPLEMENTING AND DISTRIBUTING THOSE FUNDS TO
NEEDY INDIVIDUALS SATISFIES THE VARIOUS FEDERAL REQUIREMENTS SET OUT IN
THE SOCIAL SECURITY ACT.  BY STATUTE, THE SECRETARY OF HEW IS CHARGED
WITH THE DUTY OF REVIEWING STATE PLANS TO DETERMINE IF THEY COMPLY WITH
THE NOW CONSIDERABLE LIST OF FEDERAL REQUIREMENTS, 42 U.S.C. 602 (1964
ED. AND SUPP. IV), AND HIS APPROVAL OF SUCH A PLAN, AND ONLY HIS
APPROVAL, QUALIFIES THE STATE PROGRAM FOR FEDERAL FINANCIAL
ASSISTANCE.  42 U.S.C. 601 (1964 ED., SUPP. IV).  SO THAT HEW MAY
DETERMINE WHETHER THE STATE PLAN CONTINUES AT ALL TIMES TO MEET THE
FEDERAL REQUIREMENTS, EACH STATE IS REQUIRED BY REGULATION TO SUBMIT
ALL RELEVANT CHANGES, SUCH AS NEW STATE STATUTES, REGULATIONS, AND
COURT DECISIONS, TO HEW FOR ITS REVIEW.  45 CFR 201.3.  IF, AFTER
AFFORDING THE STATE REASONABLE NOTICE AND AN OPPORTUNITY FOR A HEARING,
HEW DETERMINES THAT THE STATE PLAN DOES NOT CONFORM TO THE FEDERAL
REQUIREMENTS, THE FEDERAL AGENCY THEN HAS A LEGAL OBLIGATION TO
TERMINATE FEDERAL AID TO WHICH THE STATE WOULD OTHERWISE BE ENTITLED. 
42 U.S.C. 604, 1316 (1964 ED., SUPP. IV); 45 CFR 201.5.  WAIVER BY THE
SECRETARY OF ANY OF THE FEDERAL REQUIREMENTS IS PERMITTED ONLY WHERE
THE SECRETARY AND STATE WELFARE OFFICIALS HAVE TOGETHER UNDERTAKEN A
"DEMONSTRATION" OR EXPERIMENTAL WELFARE PROJECT.  42 U.S.C. 1315 (1964
ED., SUPP. IV).  THE ADMINISTRATIVE PROCEDURES THAT THE SECRETARY MUST
AFFORD A STATE BEFORE DENYING OR CURTAILING THE USE OF FEDERAL FUNDS
ARE ELABORATED IN 42 U.S.C. 1316 (1964 ED., SUPP. IV), AND THIS SECTION
ALSO PROVIDES THAT A STATE CAN OBTAIN JUDICIAL REVIEW IN A UNITED
STATES COURT OF APPEALS OF AN ADVERSE ADMINISTRATIVE DETERMINATION. 

THIS UNIFIED, COHERENT SCHEME FOR REVIEWING STATE WELFARE RULES AND
PRACTICES WAS ESTABLISHED BY CONGRESS TO ENSURE THAT THE FEDERAL
PURPOSE BEHIND AFDC IS FULLY CARRIED OUT.  THE STATUTORY PROVISIONS
EVIDENCE A CLEAR INTENT ON THE PART OF CONGRESS TO VEST IN HEW THE
PRIMARY RESPONSIBILITY FOR INTERPRETING THE FEDERAL ACT AND ENFORCING
ITS REQUIREMENTS AGAINST THE STATES.  ALTHOUGH THE AGENCY'S SANCTION,
THE POWER TO TERMINATE FEDERAL ASSISTANCE, MIGHT SEEM AT FIRST GLANCE
TO BE A HARSH AND INFLEXIBLE REMEDY, CONGRESS WISELY SAW THAT IN THE
VAST MAJORITY OF CASES A CREDIBLE THREAT OF TERMINATION WILL BE MORE
THAN SUFFICIENT TO BRING ABOUT COMPLIANCE.  THESE PROCEDURES, IF
FOLLOWED AS CONGRESS INTENDED, WOULD RENDER UNNECESSARY COUNTLESS
LAWSUITS BY WELFARE RECIPIENTS.  IN THE CASE BEFORE THE COURT TODAY IT
IS UNDISPUTED THAT HEW HAD BY THE TIME OF THE PROCEEDINGS IN THE
DISTRICT COURT COMMENCED ITS OWN ADMINISTRATIVE PROCEEDINGS TO
DETERMINE WHETHER SEC. 131-A CONFORMS TO THE SOCIAL SECURITY ACT'S
PROVISIONS.  THE AGENCY HAD REQUESTED THE NEW YORK WELFARE OFFICIALS TO
PROVIDE DETAILED INFORMATION REGARDING THE STATUTE AND WAS PREPARING TO
MAKE ITS STATUTORILY REQUIRED DECISION ON THE CONFORMITY OR
NONCONFORMITY OF SEC. 131-A.  IT WAS AT THIS POINT, WHEN HEW WAS IN THE
MIDST OF PERFORMING ITS STATUTORY OBLIGATION, THAT THE DISTRICT COURT
ASSUMED JURISDICTION OVER PETITIONERS' CLAIM AND DECIDED THE VERY STATE
FEDERAL ISSUE THEN PENDING BEFORE HEW.  BOTH JUDGE HAYS AND JUDGE
LUMBARD OF THE COURT OF APPEALS WERE OF THE OPINION THAT THE DISTRICT
COURT ABUSED ITS DISCRETION IN FINDING THAT IT HAD JURISDICTION OVER
THIS STATUTORY CLAIM, AND BOTH JUDGES RELIED IN PART ON THE PENDENCY OF
THE IDENTICAL QUESTION BEFORE THE FEDERAL AGENCY.  414 F.2D 170, 176,
181 (1969).  CHIEF JUDGE LUMBARD'S REASONING IS INSTRUCTIVE: 

"(HERE, AS JUDGE HAYS POINTS OUT, THE FEDERAL CLAIM SEEMS MORE APT
FOR INITIAL RESOLUTION BY THE DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, THAN BY THE COURTS.  THE TWO ISSUES UPON A RESOLUTION OF WHICH
THIS CALIM TURNS-- THE PRACTICAL EFFECT OF SEC. 131-A AND THE PROPER
CONSTRUCTION OF SEC. 602(A)(23) OF THE SOCIAL SECURITY ACT-- BOTH ARE
EXCEEDINGLY COMPLEX.  THE BRIEFS AND ARGUMENTS OF THE PARTIES, AND THE
VARYING JUDICIAL VIEWS THEY HAVE ELICITED, HAVE DEMONSTRATED THE WISDOM
OF ALLOWING HEW, WITH ITS EXPERTISE IN THE OPERATION OF THE AFDC
PROGRAM AND ITS EXPERIENCE IN REVIEWING THE VERY TECHNICAL PROVISIONS
OF STATE WELFARE LAWS, AN INITIAL OPPORTUNITY TO CONSIDER WHETHER OR
NOT SEC. 131-A IS IN COMPLIANCE WITH SEC. 602(A)(23).  THIS IS HEW'S
RESPONSIBILITY UNDER THE SOCIAL SECURITY ACT, SEE 42 U.S.C.A. 1316
(SUPP. 1969).  I BELIEVE THAT THE DISTRICT COURT SHOULD HAVE DECLINED
TO EXERCISE ITS JURISDICTION, THUS PERMITTING HEW TO DETERMINE THE
STATUTORY CLAIM ASSERTED BY PLAINTIFFS, FOR THE DEPARTMENT ALREADY HAD
INITIATED REVIEW PROCEEDINGS CONCERNING SEC. 131-A."  414 F.2D,AT 181. 
I AGREE WITH THE COURT OF APPEALS THAT THE DISTRICT COURT ABUSED ITS
DISCRETION IN TAKING JURISDICTION OVER THIS CASE, BUT I WOULD GO
FURTHER THAN HOLDING THAT THE DISTRICT COURT'S ACTION WAS A MERE ABUSE
OF DISCRETION.  ENSURING THAT THE FEDERAL COURTS HAVE THE BENEFIT OF
HEW'S EXPERTISE IN THE WELFARE AREA IS AN IMPORTANT BUT BY NO MEANS THE
ONLY CONSIDERATION SUPPORTING THE LIMITATION OF JUDICIAL INTERVENTION
AT THIS STAGE.  CONGRESS HAS GIVEN TO HEW THE GRAVE RESPONSIBILITY OF
GUARANTEEING THAT IN EACH CASE WHERE FEDERAL AFDC FUNDS ARE USED,
FEDERAL POLICIES ARE FOLLOWED, AND IT HAS ESTABLISHED PROCEDURES
THROUGH WHICH HEW CAN ENFORCE THE FEDERAL INTERESTS AGAINST THE
STATES.  I THINK THESE CONGRESSIONALLY MANDATED COMPLIANCE PROCEDURES
SHOULD BE THE EXCLUSIVE ONES UNTIL THEY HAVE RUN THEIR COURSE.  THE
EXPLICITNESS WITH WHICH CONGRESS SET OUT THE HEW COMPLIANCE PROCEDURES
WITHOUT REFERRING TO OTHER REMEDIES SUGGESTS THAT SUCH WAS THE
CONGRESSIONAL INTENT.  BUT MORE FUNDAMENTALLY, I THINK IT WILL BE
IMPOSSIBLE FOR HEW TO FULFILL ITS FUNCTION UNDER THE SOCIAL SECURITY
ACT IF ITS PROCEEDINGS CAN BE DISRUPTED AND ITS AUTHORITY UNDERCUT BY
COURTS WHICH RUSH TO MAKE PRECISELY THE SAME DETERMINATION THAT THE
AGENCY IS DIRECTED BY THE ACT TO MAKE.  AND IN INSTANCES WHEN HEW IS
CONFRONTED WITH A PARTICULARLY SENSITIVE QUESTION, THE AGENCY MIGHT BE
DELIGHTED TO BE ABLETO PASS ON TO THE COURTS ITS STATUTORY
RESPONSIBILITY TO DECIDE THE QUESTION.  IN THE LONG RUN, THEN, JUDICIAL
PRE-EMPTION OF THE AGENCY'S RIGHTFUL RESPONSIBILITY CAN ONLY LEAD TO
THE COLLAPSE OF THE ENFORCEMENT SCHEME ENVISIONED BY CONGRESS, AND I
FEAR THAT THIS CASE AND OTHERS HAVE CARRIED SUCH A PROCESS WELL ALONG
ITS WAY.  FINALLY, THERE IS THE VERY IMPORTANT CONSIDERATION OF
JUDICIAL ECONOMY AND THE PREVENTION OF PREMATURE AND UNNECESSARY
LAWSUITS, PARTICULARLY AT THIS TIME WHEN THE COURTS ARE OVERRUN WITH
LITIGANTS ON EVERY SUBJECT.  IF COURTS ARE PERMITTED TO CONSIDER THE
IDENTICAL QUESTIONS PENDING BEFORE HEW FOR ITS DETERMINATION,
INEVITABLY THEY WILL HAND DOWN A LARGE NUMBER OF DECISIONS THAT COULD
HAVE BEEN MOOTED IF ONLY THEY HAD POSTPONED DECIDING THE ISSUES UNTIL
THE ADMINISTRATIVE PROCEEDINGS WERE COMPLETED.  FOR ALL THESE REASONS I
WOULD GO ONE STEP FURTHER THAN THE COURT OF APPEALS MAJORITY AND HOLD
THAT ALL JUDICIAL EXAMINATIONS OF ALLEGED CONFLICTS BETWEEN STATE AND
FEDERAL AFDC PROGRAMS PRIOR TO A FINAL HEW DECISION APPROVING OR
DISAPPROVING THE STATE PLAN ARE FUNDAMENTALLY INCONSISTENT WITH THE
ENFORCEMENT SCHEME CREATED BY CONGRESS AND HENCE SUCH SUITS SHOULD BE
COMPLETELY PRECLUDED.  THIS PRECLUSION OF JUDICIAL ACTION DOES NOT, OF
COURSE, NECESSARILY MEAN THAT THE INDIVIDUAL WELFARE RECIPIENT HAS NO
LEGAL REMEDIES.  THE PRECISE QUESTIONS OF WHEN AND UNDER WHAT
CIRCUMSTANCES INDIVIDUAL WELFARE RECIPIENTS CAN PROPERLY SEEK FEDERAL
JUDICIAL REVIEW ARE NOT BEFORE THE COURT, HOWEVER, AND I EXPRESS NO
VIEWS ABOUT THOSE ISSUES.  /2/ 

/1/  THIS PRECISE ISSUE WAS NOT SO CLEARLY AND SHARPLY PRESENTED IN
KING V. SMITH, 392 U.S. 309 (1968), WHICH I JOINED.  SEE ID., AT 317 N.
11, 326 N.23. 

/2/  THE ISSUES ARE CANVASSED IN NOTE, FEDERAL JUDICIAL REVIEW OF
STATE WELFARE PRACTICES, 67 COL.L.REV.  84 (1967). 

LEE A. ALBERT ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE CARL RACHLIN AND MARTIN GARBUS. 

PHILIP WEINBERG ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND AMY JUVILER,
ASSISTANT ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY ALAN H. LEVINE,
MELVIN L. WULF, ELANOR HOLMES NORTON, AND MARTIN M. BERGER FOR THE NEW
YORK CIVIL LIBERTIES UNION ET AL.; BY KARL D. ZUCKERMAN, DOROTHY COYLE,
AND MILDRED SHANLEY FOR THE CATHOLIC CHARITIES OF THE ARCHDIOCESE OF
NEW YORK ET AL.; AND BY FLOYD SARISOHN FOR PEOPLE FOR ADEQUATE
WELFARE. 

BRIEFS OF AMICI CURIAE WERE FILED BY SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL RUCKELSHAUS, AND PETER L. STRAUSS FOR THE
UNITED STATES, AND BY THEODORE L. SENDAK, ATTONEY GENERAL, AND ROBERT
A. ZABAN, DEPUTY ATTORNEY GENERAL, FOR THE STATE OF INDIANA. 
..END :






















ASHE V. SWENSON, 397 U.S. 436 


       ASHE V. SWENSON, WARDEN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

        NO. 57.  ARGUED NOVEMBER 13, 1969-- DECIDED APRIL 6, 1970 


THREE OR FOUR MEN ROBBED SIX POKER PLAYERS.  PETITIONER WAS
SEPARATELY CHARGED WITH HAVING ROBBED ONE OF THE PLAYERS, KNIGHT, WHO
ALONG WITH THREE OTHERS TESTIFIED FOR THE PROSECUTION THAT EACH HAD
BEEN ROBBED.  THE STATE'S EVIDENCE THAT PETITIONER HAD BEEN ONE OF THE
ROBBERS WAS WEAK.  THE DEFENSE OFFERED NO TESTIMONY.  THE TRIAL JUDGE
INSTRUCTED THE JURY THAT IF IT FOUND THAT PETITIONER PARTICIPATED IN
THE ROBBERY, THE THEFT OF ANY MONEY FROM KNIGHT WOULD SUSTAIN A
CONVICTION AND THAT IF PETITIONER WAS ONE OF THE ROBBERS HE WAS GUILTY
EVEN THOUGH HE HAD NOT PERSONALLY ROBBED KNIGHT.  THE JURY FOUND
PETITIONER "NOT GUILTY DUE TO INSUFFICIENT EVIDENCE."  THEREAFTER
PETITIONER, FOLLOWING DENIAL OF HIS MOTION FOR DISMISSAL BASED ON THE
PREVIOUS ACQUITTAL, WAS TRIED FOR HAVING ROBBED ANOTHER POKER PLAYER,
ROBERTS, AND WAS CONVICTED.  FOLLOWING AFFIRMANCE BY THE MISSOURI
SUPREME COURT AND UNSUCCESSFUL COLLATERAL ATTACK IN THE STATE COURTS,
PETITIONER BROUGHT THIS HABEAS CORPUS ACTION IN THE DISTRICT COURT,
CLAIMING THAT THE SECOND PROSECUTION HAD VIOLATED THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT.  THE DISTRICT COURT DENIED THE WRIT,
RELYING ON HOAG V. NEW JERSEY, 356 U.S. 464, WHICH ON VIRTUALLY
IDENTICAL FACTS HELD THAT THERE WAS NO VIOLATION OF DUE PROCESS.  THE
COURT OF APPEALS AFFIRMED.  THEREAFTER THIS COURT IN BENTON V.
MARYLAND, 395 U.S. 784, HELD THAT THE FIFTH AMENDMENT GUARANTEE AGAINST
DOUBLE JEOPARDY IS ENFORCEABLE AGAINST THE STATES THROUGH THE
FOURTEENTH AMENDMENT, A DECISION WHICH HAD FULLY "RETROACTIVE" EFFECT,
NORTH CAROLINA V. PEARCE, 395 U.S. 711.  HELD: 

1.  THE FIFTH AMENDMENT GUARANTEE AGAINST DOUBLE JEOPARDY,
APPLICABLE HERE THROUGH THE FOURTEENTH AMENDMENT BY VIRTUE OF BENTON V.
MARYLAND, SUPRA, EMBODIES COLLATERAL ESTOPPEL AS A CONSTITUTIONAL
REQUIREMENT.  PP. 437-444. 

2.  SINCE ON THE RECORD IN THIS CASE THE JURY IN THE FIRST TRIAL HAD
DETERMINED BY ITS VERDICT THAT PETITIONER WAS NOT ONE OF THE ROBBERS,
THE STATE UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL WAS
CONSTITUTIONALLY FORECLOSED FROM RELITIGATING THAT ISSUE IN ANOTHER
TRIAL.  PP. 445-447. 

399 F.2D 40, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN BENTON V. MARYLAND, 395 U.S. 784, THE COURT HELD THAT THE FIFTH
AMENDMENT GUARANTEE AGAINST DOUBLE JEOPARDY IS ENFORCEABLE AGAINST THE
STATES THROUGH THE FOURTEENTH AMENDMENT.  THE QUESTION IN THIS CASE IS
WHETHER THE STATE OF MISSOURI VIOLATED THAT GUARANTEE WHEN IT
PROSECUTED THE PETITIONER A SECOND TIME FOR ARMED ROBBERY IN THE
CIRCUMSTANCES HERE PRESENTED.  /1/ 

SOMETIME IN THE EARLY HOURS OF THE MORNING OF JANUARY 10, 1960, SIX
MEN WERE ENGAGED IN A POKER GAME IN THE BASEMENT OF THE HOME OF JOHN
GLADSON AT LEE'S SUMMIT, MISSOURI.  SUDDENLY THREE OR FOUR MASKED MEN,
ARMED WITH A SHOTGUN AND PISTOLS BROKE INTO THE BASEMENT AND ROBBED
EACH OF THE POKER PLAYERS OF MONEY AND VARIOUS ARTICLES OF PERSONAL
PROPERTY.  THE ROBBERS-- AND IT HAS NEVER BEEN CLEAR WHETHER THERE WERE
THREE OR FOUR OF THEM-- THEN FLED IN A CAR BELONGING TO ONE OF THE
VICTIMS OF THE ROBBERY.  SHORTLY THEREAFTER THE STOLEN CAR WAS
DISCOVERED IN A FIELD, AND LATER THAT MORNING THREE MEN WERE ARRESTED
BY A STATE TROOPER WHILE THEY WERE WALKING ON A HIGHWAY NOT FAR FROM
WHERE THE ABANDONED CAR HAD BEEN FOUND.  THE PETITIONER WAS ARRESTED BY
ANOTHER OFFICER SOME DISTANCE AWAY. 

THE FOUR WERE SUBSEQUENTLY CHARGED WITH SEVEN SEPARATE OFFENSES--
THE ARMED ROBBERY OF EACH OF THE SIX POKER PLAYERS AND THE THEFT OF THE
CAR.  IN MAY 1960 THE PETITIONER WENT TO TRIAL ON THE CHARGE OF ROBBING
DONALD KNIGHT, ONE OF THE PARTICIPANTS IN THE POKER GAME.  AT THE TRIAL
THE STATE CALLED KNIGHT AND THREE OF HIS FELLOW POKER PLAYERS AS
PROSECUTION WITNESSES.  EACH OF THEM DESCRIBED THE CIRCUMSTANCES OF THE
HOLDUP AND ITEMIZED HIS OWN INDIVIDUAL LOSSES.  THE PROOF THAT AN ARMED
ROBBERY HAD OCCURRED AND THAT PERSONAL PROPERTY HAD BEEN TAKEN FROM
KNIGHT AS WELL AS FROM EACH OF THE OTHERS WAS UNASSAILABLE.  THE
TESTIMONY OF THE FOUR VICTIMS IN THIS REGARD WAS CONSISTENT BOTH
INTERNALLY AND WITH THAT OF THE OTHERS.  BUT THE STATE'S EVIDENCE THAT
THE PETITIONER HAD BEEN ONE OF THE ROBBERS WAS WEAK.  TWO OF THE
WITNESSES THOUGHT THAT THERE HAD BEEN ONLY THREE ROBBERS ALTOGETHER,
AND COULD NOT IDENTIFY THE PETITIONER AS ONE OF THEM.  ANOTHER OF THE
VICTIMS, WHO WAS THE PETITIONER'S UNCLE BY MARRIAGE, SAID THAT AT THE
"PATROL STATION" HE HAD POSITIVELY IDENTIFIED EACH OF THE OTHER THREE
MEN ACCUSED OF THE HOLDUP, BUT COULD SAY ONLY THAT THE PETITIONER'S
VOICE "SOUNDED VERY MUCH LIKE" THAT OF ONE OF THE ROBBERS.  THE FOURTH
PARTICIPANT IN THE POKER GAME DID IDENTIFY THE PETITIONER, BUT ONLY BY
HIS "SIZE AND HEIGHT, AND HIS ACTIONS." 

THE CROSS-EXAMINATION OF THESE WITNESSES WAS BRIEF, AND IT WAS AIMED
PRIMARILY AT EXPOSING THE WEAKNESS OF THEIR IDENTIFICATION TESTIMONY. 
DEFENSE COUNSEL MADE NO ATTEMPT TO QUESTION THEIR TESTIMONY REGARDING
THE HOLDUP ITSELF OR THEIR CLAIMS AS TO THEIR LOSSES.  KNIGHT TESTIFIED
WITHOUT CONTRADICTION THAT THE ROBBERS HAD STOLEN FROM HIM HIS WATCH,
$250 IN CASH, AND ABOUT $500 IN CHECKS.  HIS BILLFOLD, WHICH HAD BEEN
FOUND BY THE POLICE IN THE POSSESSION OF ONE OF THE THREE OTHER MEN
ACCUSED OF THE ROBBERY, WAS ADMITTED IN EVIDENCE.  THE DEFENSE OFFERED
NO TESTIMONY AND WAIVED FINAL ARGUMENT. 

THE TRIAL JUDGE INSTRUCTED THE JURY THAT IF IT FOUND THAT THE
PETITIONER WAS ONE OF THE PARTICIPANTS IN THE ARMED ROBBERY, THE THEFT
OF "ANY MONEY" FROM KNIGHT WOULD SUSTAIN A CONVICTION.  /2/  HE ALSO
INSTRUCTED THE JURY THAT IF THE PETITIONER WAS ONE OF THE ROBBERS, HE
WAS GUILTY UNDER THE LAW EVEN IF HE HAD NOT PERSONALLY ROBBED KNIGHT. 
/3/  THE JURY-- THOUGH NOT INSTRUCTED TO ELABORATE UPON ITS VERDICT--
FOUND THE PETITIONER "NOT GUILTY DUE TO INSUFFICIENT EVIDENCE." 

SIX WEEKS LATER THE PETITIONER WAS BROUGHT TO TRIAL AGAIN, THIS TIME
FOR THE ROBBERY OF ANOTHER PARTICIPANT IN THE POKER GAME, A MAN NAMED
ROBERTS.  THE PETITIONER FILED A MOTION TO DISMISS, BASED ON HIS
PREVIOUS ACQUITTAL.  THE MOTION WAS OVERRULED, AND THE SECOND TRIAL
BEGAN.  THE WITNESSES WERE FOR THE MOST PART THE SAME, THOUGH THIS TIME
THEIR TESTIMONY WAS SUBSTANTIALLY STRONGER ON THE ISSUE OF THE
PETITIONER'S IDENTITY.  FOR EXAMPLE, TWO WITNESSES WHO AT THE FIRST
TRIAL HAD BEEN WHOLLY UNABLE TO IDENTIFY THE PETITIONER AS ONE OF THE
ROBBERS, NOW TESTIFIED THAT HIS FEATURES, SIZE, AND MANNERISMS MATCHED
THOSE OF ONE OF THEIR ASSAILANTS.  ANOTHER WITNESS WHO BEFORE HAD
IDENTIFIED THE PETITIONER ONLY BY HIS SIZE AND ACTIONS NOW ALSO
REMEMBERED HIM BY THE UNUSUAL SOUND OF HIS VOICE.  THE STATE FURTHER
REFINED ITS CASE AT THE SECOND TRIAL BY DECLINING TO CALL ONE OF THE
PARTICIPANTS IN THE POKER GAME WHOSE IDENTIFICATION TESTIMONY AT THE
FIRST TRIAL HAD BEEN CONSPICUOUSLY NEGATIVE.  THE CASE WENT TO THE JURY
ON INSTRUCTIONS VIRTUALLY IDENTICAL TO THOSE GIVEN AT THE FIRST TRIAL. 
THIS TIME THE JURY FOUND THE PETITIONER GUILTY, AND HE WAS SENTENCED TO
A 35-YEAR TERM IN THE STATE PENITENTIARY. 

THE SUPREME COURT OF MISSOURI AFFIRMED THE CONVICTION, HOLDING THAT
THE "PLEA OF FORMER JEOPARDY MUST BE DENIED."  STATE V. ASHE, 350
S.W.2D 768, 771.  A COLLATERAL ATTACK UPON THE CONVICTION IN THE STATE
COURTS FIVE YEARS LATER WAS ALSO UNSUCCESSFUL.  STATE V. ASHE, 403
S.W.2D 589.  THE PETITIONER THEN BROUGHT THE PRESENT HABEAS CORPUS
PROCEEDING IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI, CLAIMING THAT THE SECOND PROSECUTION HAD VIOLATED HIS
RIGHT NOT TO BE TWICE PUT IN JEOPARDY.  CONSIDERING ITSELF BOUND BY
THIS COURT'S DECISION IN HOAG V. NEW JERSEY, 356 U.S. 464, THE DISTRICT
COURT DENIED THE WRIT, ALTHOUGH APPARENTLY FINDING MERIT IN THE
PETITIONER'S CLAIM.  /4/  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT
AFFIRMED, ALSO UPON THE AUTHORITY OF HOAG V. NEW JERSEY, SUPRA.  /5/
WE GRANTED CERTIORARI TO CONSIDER THE IMPORTANT CONSTITUTIONAL QUESTION
THIS CASE PRESENTS.  393 U.S. 1115. 

AS THE DISTRICT COURT AND THE COURT OF APPEALS CORRECTLY NOTED, THE
OPERATIVE FACTS HERE ARE VIRTUALLY IDENTICAL TO THOSE OF HOAG V. NEW
JERSEY, SUPRA.  IN THAT CASE THE DEFENDANT WAS TRIED FOR THE ARMED
ROBBERY OF THREE MEN WHO, ALONG WITH OTHERS, HAD BEEN HELD UP IN A
TAVERN.  THE PROOF OF THE ROBBERY WAS CLEAR, BUT THE EVIDENCE
IDENTIFYING THE DEFENDANT AS ONE OF THE ROBBERS WAS WEAK, AND THE
DEFENDANT INTERPOSED AN ALIBI DEFENSE.  THE JURY BROUGHT IN A VERDICT
OF NOT GUILTY.  THE DEFENDANT WAS THEN BROUGHT TO TRIAL AGAIN, ON AN
INDICTMENT CHARGING THE ROBBERY OF A FOURTH VICTIM OF THE TAVERN
HOLDUP.  THIS TIME THE JURY FOUND HIM GUILTY.  AFTER APPEALS IN THE
STATE COURTS PROVED UNSUCCESSFUL, HOAG BROUGHT HIS CASE HERE. 

VIEWING THE QUESTION PRESENTED SOLELY IN TERMS OF FOURTHEENTH
AMENDMENT DUE PROCESS-- WHETHER THE COURSE THAT NEW JERSEY HAD PURSUED
HAD "LED TO FUNDAMENTAL UNFAIRNESS,"  356 U.S.,AT 467-- THIS COURT
DECLINED TO REVERSE THE JUDGMENT OF CONVICTION, BECAUSE "IN THE
CIRCUMSTANCES SHOWN BY THIS RECORD, WE CANNOT SAY THAT PETITIONER'S
LATER PROSECUTION AND CONVICTION VIOLATED DUE PROCESS."  /6/  356
U.S.,AT 466.  THE COURT FOUND IT UNNECESSARY TO DECIDE WHETHER
"COLLATERAL ESTOPPEL"-- THE PRINCIPLE THAT BARS RELITIGATION BETWEEN
THE SAME PARTIES OF ISSUES ACTUALLY DETERMINED AT A PREVIOUS TRIAL-- IS
A DUE PROCESS REQUIREMENT IN A STATE CRIMINAL TRIAL, SINCE IT ACCEPTED
NEW JERSEY'S DETERMINATION THAT THE PETITIONER'S PREVIOUS ACQUITTAL DID
NOT IN ANY EVENT GIVE RISE TO SUCH AN ESTOPPEL.  356 U.S.,AT 471.  AND
IN THE VIEW THE COURT TOOK OF THE ISSUES PRESENTED, IT DID NOT, OF
COURSE, EVEN APPROACH CONSIDERATION OF WHETHER COLLATERAL ESTOPPEL IS
AN INGREDIENT OF THE FIFTH AMENDMENT GUARANTEE AGAINST DOUBLE
JEOPARDY. 

THE DOCTRINE OF BENTON V. MARYLAND, 395 U.S. 784, PUTS THE ISSUES IN
THE PRESENT CASE IN A PERSPECTIVE QUITE DIFFERENT FROM THAT IN WHICH
THE ISSUES WERE PERCEIVED IN HOAG V. NEW JERSEY, SUPRA.  THE QUESTION
IS NO LONGER WHETHER COLLATERAL ESTOPPEL IS A REQUIREMENT OF DUE
PROCESS, BUT WHETHER IT IS A PART OF THE FIFTH AMENDMENT'S GUARANTEE
AGAINST DOUBLE JEOPARDY.  AND IF COLLATERAL ESTOPPEL IS EMBODIED IN
THAT GUARANTEE, THEN ITS APPLICABILITY IN A PARTICULAR CASE IS NO
LONGER A MATTER TO BE LEFT FOR STATE COURT DETERMINATION WITHIN THE
BROAD BOUNDS OF "FUNDAMENTAL FAIRNESS," BUT A MATTER OF CONSTITUTIONAL
FACT WE MUST DECIDE THROUGH AN EXAMINATION OF THE ENTIRE RECORD.  CF.
NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 285; NIEMOTKO V.
MARYLAND, 340 U.S. 268, 271; WATTS V. INDIANA, 338 U.S. 49, 51;
CHAMBERS V. FLORIDA, 309 U.S. 227, 229; NORRIS V. ALABAMA, 294 U.S.
587, 590. 

"COLLATERAL ESTOPPEL" IS AN AWKWARD PHRASE, BUT IT STANDS FOR AN
EXTREMELY IMPORTANT PRINCIPLE IN OUR ADVERSARY SYSTEM OF JUSTICE.  IT
MEANS SIMPLY THAT WHEN AN ISSUE OF ULTIMATE FACT HAS ONCE BEEN
DETERMINED BY A VALID AND FINAL JUDGMENT, THAT ISSUE CANNOT AGAIN BE
LITIGATED BETWEEN THE SAME PARTIES IN ANY FUTURE LAWSUIT.  ALTHOUGH
FIRST DEVELOPED IN CIVIL LITIGATION, COLLATERAL ESTOPPEL HAS BEEN AN
ESTABLISHED RULE OF FEDERAL CRIMINAL LAW AT LEAST SINCE THIS COURT'S
DECISION MORE THAN 50 YEARS AGO IN UNITED STATES V. OPPENHEIMER, 242
U.S. 85.  AS MR. JUSTICE HOLMES PUT THE MATTER IN THAT CASE, "IT CANNOT
BE THAT THE SAFEGUARDS OF THE PERSON, SO OFTEN AND SO RIGHTLY MENTIONED
WITH SOLEMN REVERENCE, ARE LESS THAN THOSE THAT PROTECT FROM A
LIABILITY IN DEBT."  242 U.S.,AT 87.  /7/  AS A RULE OF FEDERAL LAW,
THEREFORE, "(IT IS MUCH TOO LATE TO SUGGEST THAT THIS PRINCIPLE IS NOT
FULLY APPLICABLE TO A FORMER JUDGMENT IN A CRIMINAL CASE, EITHER
BECAUSE OF LACT OF 'MUTUALITY' OR BECAUSE THE JUDGMENT MAY REFLECT ONLY
A BELIEF THAT THE GOVERNMENT HAD NOT MET THE HIGHER BURDEN OF PROOF
EXACTED IN SUCH CASES FOR THE GOVERNMENT'S EVIDENCE AS A WHOLE ALTHOUGH
NOT NECESSARILY AS TO EVERY LINK IN THE CHAIN."  UNITED STATES V.
KRAMER, 289 F.2D 909, 913. 

THE FEDERAL DECISIONS HAVE MADE CLEAR THAT THE RULE OF COLLATERAL
ESTOPPEL IN CRIMINAL CASES IS NOT TO BE APPLIED WITH THE HYPERTECHNICAL
AND ARCHAIC APPROACH OF A 19TH CENTURY PLEADING BOOK, BUT WITH REALISM
AND RATIONALITY.  WHERE A PREVIOUS JUDGMENT OF ACQUITTAL WAS BASED UPON
A GENERAL VERDICT, AS IS USUALLY THE CASE, THIS APPROACH REQUIRES A
COURT TO "EXAMINE THE RECORD OF A PRIOR PROCEEDING, TAKING INTO ACCOUNT
THE PLEADINGS, EVIDENCE, CHARGE, AND OTHER RELEVANT MATTER, AND
CONCLUDE WHETHER A RATIONAL JURY COULD HAVE GROUNDED ITS VERDICT UPON
AN ISSUE OTHER THAN THAT WHICH THE DEFENDANT SEEKS TO FORECLOSE FROM
CONSIDERATION."  /8/  THE INQUITY "MUST BE SET IN A PRACTICAL FRAME AND
VIEWED WITH AN EYE TO ALL THE CIRCUMSTANCES OF THE PROCEEDINGS." 
SEALFON V. UNITED STATES, 332 U.S. 575, 579.  ANY TEST MORE TECHNICALLY
RESTRICTIVE WOULD OF COURSE, SIMPLY AMOUNT TO A REJECTION OF THE RULE
OF COLLATERAL ESTOPPEL IN CRIMINAL PROCEEDINGS, AT LEAST IN EVERY CASE
WHERE THE FIRST JUDGMENT WAS BASED UPON A GENERAL VERDICT OF
ACQUITTAL.  /9/ 

STRAIGHTFORWARD APPLICATION OF THE FEDERAL RULE TO THE PRESENT CASE
CAN LEAD TO BUT ONE CONCLUSION.  FOR THE RECORD IS UTTERLY DEVOID OF
ANY INDICATION THAT THE FIRST JURY COULD RATIONALLY HAVE FOUND THAT AN
ARMED ROBBERY HAD NOT OCCURRED, OR THAT KNIGHT HAD NOT BEEN A VICTIM OF
THAT ROBBERY.  THE SINGLE RATIONALLY CONCEIVABLE ISSUE IN DISPUTE
BEFORE THE JURY WAS WHETHER THE PETITIONER HAD BEEN ONE OF THE
ROBBERS.  AND THE JURY BY ITS VERDICT FOUND THAT HE HAD NOT.  THE
FEDERAL RULE OF LAW, THEREFORE, WOULD MAKE A SECOND PROSECUTION FOR THE
ROBBERY OF ROBERTS WHOLLY IMPERMISSIBLE. 

THE ULTIMATE QUESTION TO BE DETERMINED, THEN, IN THE LIGHT OF BENTON
V. MARYLAND, SUPRA, IS WHETHER THIS ESTABLISHED RULE OF FEDERAL LAW IS
EMBODIED IN THE FIFTH AMENDMENT GUARANTEE AGAINST DOUBLE JEOPARDY.  WE
DO NOT HESITATE TO HOLD THAT IT IS.  /10/  FOR WHATEVER ELSE THAT
CONSTITUTIONAL GUARANTEE MAY EMBRACE, NORTH CAROLINA V. PEARCE, 395
U.S. 711, 717, IT SURELY PROTECTS A MAN WHO HAS BEEN ACQUITTED FROM
HAVING TO "RUN THE GANTLET" A SECOND TIME.  GREEN V. UNITED STATES, 355
U.S. 184, 190. 

THE QUESTION IS NOT WHETHER MISSOURI COULD VALIDLY CHARGE THE
PETITIONER WITH SIX SEPARATE OFFENSES FOR THE ROBBERY OF THE SIX POKER
PLAYERS.  IT IS NOT WHETHER HE COULD HAVE RECEIVED A TOTAL OF SIX
PUNISHMENTS IF HE HAD BEEN CONVICTED IN A SINGLE TRIAL OF ROBBING THE
SIX VICTIMS.  IT IS SIMPLY WHETHER, AFTER A JURY DETERMINED BY ITS
VERDICT THAT THE PETITIONER WAS NOT ONE OF THE ROBBERS, THE STATE COULD
CONSTITUTIONALLY HALE HIM BEFORE A NEW JURY TO LITIGATE THAT ISSUE
AGAIN. 

AFTER THE FIRST JURY HAD ACQUITTED THE PETITIONER OF ROBBING KNIGHT,
MISSOURI COULD CERTAINLY NOT HAVE BROUGHT HIM TO TRIAL AGAIN UPON THAT
CHARGE.  ONCE A JURY HAD DETERMINED UPON CONFLICTING TESTIMONY THAT
THERE WAS AT LEAST A REASONABLE DOUBT THAT THE PETITIONER WAS ONE OF
THE ROBBERS, THE STATE COULD NOT PRESENT THE SAME OR DIFFERENT
IDENTIFICATION EVIDENCE IN A SECOND PROSECUTION FOR THE ROBBERY OF
KNIGHT IN THE HOPE THAT A DIFFERENT JURY MIGHT FIND THAT EVIDENCE MORE
CONVINCING.  THE SITUATION IS CONSTITUTIONALLY NO DIFFERENT HERE, EVEN
THOUGH THE SECOND TRIAL RELATED TO ANOTHER VICTIM OF THE SAME ROBBERY. 
FOR THE NAME OF THE VICTIM, IN THE CIRCUMSTANCES OF THIS CASE, HAD NO
BEARING WHATEVER UPON THE ISSUE OF WHETHER THE PETITIONER WAS ONE OF
THE ROBBERS.     IN THIS CASE THE STATE IN ITS BRIEF HAS FRANKLY
CONCEDED THAT FOLLOWING THE PETITIONER'S ACQUITTAL, IT TREATED THE
FIRST TRIAL AS NO MORE THAN A DRY RUN FOR THE SECOND PROSECUTION:  "NO
DOUBT THE PROSECUTOR FELT THAT THE STATE HAD A PROVABLE CASE ON THE
FIRST CHARGE AND, WHEN HE LOST, HE DID WHAT EVERY GOOD ATTORNEY WOULD
DO-- HE REFINED HIS PRESENTATION IN LIGHT OF THE TURN OF EVENTS AT THE
FIRST TRIAL."  BUT THIS IS PRECISELY WHAT THE CONSTITUTIONAL GUARANTEE
FORBIDS. 

THE JUDGMENT IS REVERSED, AND THE CASE IS REMANDED TO THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED.     /1/  THERE CAN BE NO DOUBT OF
THE "RETROACTIVITY" OF THE COURT'S DECISION IN BENTON V. MARYLAND.  IN
NORTH CAROLINA V. PEARCE, 395 U.S. 711, DECIDED THE SAME DAY AS BENTON,
THE COURT UNANIMOUSLY ACCORDED FULLY "RETROACTIVE" EFFECT TO THE BENTON
DOCTRINE. 

/2/  "THE COURT INSTRUCTS THE JURY THAT IF YOU BELIEVE AND FIND FROM
THE EVIDENCE IN THIS CASE, BEYOND A REASONABLE DOUBT, THAT AT THE
COUNTY OF JACKSON AND STATE OF MISSOURI, ON THE 10TH DAY OF JANUARY,
1960, THE DEFENDANT HEREIN, BOB FRED ASHE, ALIAS BOBBY FRED ASHE,
EITHER ALONE OR KNOWINGLY ACTING IN CONCERT WITH OTHERS DID THEN AND
THERE WITH FORCE AND ARMS IN AND UPON ONE DON KNIGHT, UNLAWFULLY AND
FELONIOUSLY MAKE AN ASSAULT AND TOOK AND CARRIED AWAY MONEY FROM HIS
PERSON OR IN HIS PRESENCE AND AGAINST HIS WILL, BY FORCE AND VIOLENCE
TO HIS PERSON, OR BY PUTTING INTENT TO CONVERT THE SAME TO HIS OWN USE,
WITHOUT ANY HONEST CLAIM TO SAID MONEY ON THE PART OF THE DEFENDANT AND
WITH INTENT TO PERMANENTLY DEPRIVE THE SAID DON KNIGHT OF HIS OWNERSHIP
AND WITHOUT THE CONSENT OF THE SAID DON KNIGHT, IF SUCH BE YOUR
FINDING, THEN YOU WILL FIND THE DEFENDANT GUILTY OF ROBBERY, FIRST
DEGREE, AND SO FIND IN YOUR VERDICT." 

/3/  "THE COURT INSTRUCTS THE JURY THAT ALL PERSONS ARE EQUALLY
GUILTY WHO ACT TOGETHER WITH A COMMON INTENT IN THE COMMISSION OF A
CRIME, AND A CRIME SO COMMITTED BY TWO OR MORE PERSONS JOINTLY IS THE
ACT OF ALL AND OF EACH ONE SO ACTING. 

"THE COURT INSTRUCTS THE JURY THAT WHEN TWO OR MORE PERSONS
KNOWINGLY ACT TOGETHER IN THE COMMISSION OF AN UNLAWFUL ACT OR PURPOSE,
THEN WHATEVER EITHER DOES IN FURTHERANCE OF SUCH UNLAWFUL ACT OR
PURPOSE IS IN LAW THE ACT AND DEED OF EACH OF SUCH PERSONS." 

/4/  "HOWEVER PERSUASIVE THE DISSENTING OPINIONS IN THE HOAG CASE
MAY BE, IT IS THE DUTY OF THIS COURT TO FOLLOW THE LAW AS STATED BY THE
SUPREME COURT OF THE UNITED STATES UNTIL IT EXPRESSES A CONTRARY VIEW. 
CERTAINLY THE FACTUAL CIRCUMSTANCES OF THIS CASE PROVIDE AN EXCELLENT
OPPORTUNITY FOR REEXAMINATION OF THE QUESTIONS PRESENTED.  AN
EXAMINATION OF THE TRANSCRIPT OF BOTH TRIALS SHOWS THAT IN BOTH THE
SINGLE ISSUE IN REAL CONTEST, AS DISTINGUISHED FROM THE ISSUES THAT MAY
BE SAID TO HAVE BEEN IN TECHNICAL DISPUTE, WAS THE QUESTION OF WHETHER
PETITIONER WAS OR WAS NOT PRESENT AT THE TIME THE MONEY WAS TAKEN FROM
THE POKER TABLE AND THE OTHER PROPERTY TAKEN FROM PERSONS OF THE
RESPECTIVE POKER PLAYERS."  ASHE V. SWENSON, 289 F.SUPP.  871, 873. 

/5/  IT USUALLY IS DIFFICULT FOR A LOWER FEDERAL COURT TO FORECAST
WITH ASSURANCE A SUPREME COURT DECISION AS TO THE CONTINUING VALIDITY
OF A HOLDING OF A DECADE AGO BY A COURT THEN DIVIDED AS CLOSELY AS
POSSIBLE.  THIS IS PARTICULARLY SO WHEN THE DECISION IS IN THE RAPIDLY
DEVELOPING AND SENSITIVE AREA OF THE CRIMINAL LAW AND THE FOURTEENTH
AMENDMENT BILL OF RIGHTS RELATIONSHIP.  WE FEEL, HOWEVER, THAT OUR TASK
IS NOT TO FORECAST BUT TO FOLLOW THOSE DICTATES, DESPITE THEIR
CLOSENESS OF DECISION, WHICH AT THIS MOMENT IN TIME ARE ON THE BOOKS
AND FOR US TO READ.  . . . "  ASHE V. SWENSON, 399 F.2D 40, 46. 

/6/  THE PARTICULAR "CIRCUMSTANCE" MOST RELIED UPON BY THE COURT WAS
"THE UNEXPECTED FAILURE OF FOUR OF THE STATE'S WITNESSES AT THE EARLIER
TRIAL TO IDENTIFY PETITIONER, AFTER TWO OF THESE WITNESSES HAD
PREVIOUSLY IDENTIFIED HIM IN THE COURSE OF THE POLICE INVESTIGATION. 
INDEED, AFTER THE SECOND OF THE TWO WITNESSES FAILED TO IDENTIFY
PETITIONER, THE STATE PLEADED SURPRISE AND ATTEMPTED TO IMPEACH HIS
TESTIMONY.  WE CANNOT SAY THAT, AFTER SUCH AN UNEXPECTED TURN OF
EVENTS, THE STATE'S DECISION TO TRY PETITIONER FOR THE YAGER ROBBERY
WAS SO ARBITRARY OR LACKING IN JUSTIFICATION THAT IT AMOUNTED TO A
DENIAL OF THOSE CONCEPTS CONSTITUTING 'THE VERY ESSENCE OF A SCHEME OF
ORDERED JUSTICE, WHICH IS DUE PROCESS.'"  356 U.S.,AT 469-470. 

IN THE CASE NOW BEFORE USE, BY CONTRAST, THERE IS NO CLAIM OF ANY
"UNEXPECTED TURN OF EVENTS" AT THE FIRST TRIAL, UNLESS THE JURY VERDICT
OF ACQUITTAL BE SO CHARACTERIZED. 

/7/  SEE ALSO COFFEY V. UNITED STATES, 116 U.S. 436, 442-443; FRANK
V. MANGUM, 237 U.S. 309, 333-334; SEALFON V. UNITED STATES, 332 U.S.
575; UNITED STATES V. DEANGELO, 138 F.2D 466; UNITED STATES V. CURZIO,
170 F.2D 354; YAWN V. UNITED STATES, 244 F.2D 235; UNITED STATES V.
COWART, 118 F.SUPP.  903. 

/8/  MAYERS & YARBROUGH, BIS VEXARI:  NEW TRIALS AND SUCCESSIVE
PROSECUTIONS, 74 HARV.L.REV.  1, 38-39.  SEE YAWN V. UNITED STATES,
SUPRA; UNITED STATES V. DEANGELO, SUPRA. 

/9/  "IF A LATER COURT IS PERMITTED TO STATE THAT THE JURY MAY HAVE
DISBELIEVED SUBSTANTIAL AND UNCONTRADICTED EVIDENCE OF THE PROSECUTION
ON A POINT THE DEFENDANT DID NOT CONTEST, THE POSSIBLE MULTIPLICITY OF
PROSECUTIONS IS STAGGERING.  . . . IN FACT, SUCH A RESTRICTIVE
DEFINITION OF 'DETERMINED' AMOUNTS SIMPLY TO A REJECTION OF COLLATERAL
ESTOPPEL, SINCE IT IS IMPOSSIBLE TO IMAGINE A STATUTORY OFFENSE IN
WHICH THE GOVERNMENT HAS TO PROVE ONLY ONE ELEMENT OR ISSUE TO SUSTAIN
A CONVICTION."  MAYERS & YARBROUGH, SUPRA, AT 38.  SEE GENERALLY LUGAR,
CRIMINAL LAW, DOUBLE JEOPARDY AND RES JUDICATA, 39 IOWA L.REV.  317. 
SEE ALSO COMMENT, TWICE IN JEOPARDY, 75 YALE L.J. 262; HUNVALD,
CRIMINAL LAW IN MISSOURI, 25 MO.L.REV.  369, 369-375; COMMENT, DOUBLE
JEOPARDY AND COLLATERAL ESTOPPEL IN CRIMES ARISING FROM THE SAME
TRANSACTION, MO.L.REV.  513; MCLAREN, THE DOCTRINE OF RES JUDICATA AS
APPLIED TO THE TRIAL OF CRIMINAL CASES, 10 WASH.L.REV.  198. 

/10/  IT IS TRUE, AS THIS COURT SAID IN HOAG V. NEW JERSEY, SUPRA,
THAT WE HAVE NEVER SQUARELY HELD COLLATERAL ESTOPPEL TO BE A
CONSTITUTIONAL REQUIREMENT.  UNTIL PERHAPS A CENTURY AGO, FEW
SITUATIONS AROSE CALLING FOR ITS APPLICATION.  FOR AT COMMON LAW, AND
UNDER EARLY FEDERAL CRIMINAL STATUTES, OFFENSE CATEGORIES WERE
RELATIVELY FEW AND DISTINCT.  A SINGLE COURSE OF CRIMINAL CONDUCT WAS
LIKELY TO YIELD BUT A SINGLE OFFENSE.  SEE COMMENT, STATUTORY
IMPLEMENTATION OF DOUBLE JEOPARDY CLAUSES:  NEW LIFE FOR A MORIBUND
CONSTITUTIONAL GUARANTEE, 65 YALE L.J. 339, 342.  IN MORE RECENT TIMES,
WITH THE ADVENT OF SPECIFICITY IN DRAFTSMANSHIP AND THE EXTRAORDINARY
PROLIFERATION OF OVERLAPPING AND RELATED STATUTORY OFFENSES, IT BECAME
POSSIBLE FOR PROSECUTORS TO SPIN OUT A STARTLINGLY NUMEROUS SERIES OF
OFFENSES FROM A SINGLE ALLEGED CRIMINAL TRANSACTION.  SEE NOTE, DOUBLE
JEOPARDY AND THE MULTIPLE-COUNT INDICTMENT, 57 YALE L.J. 132, 133.  AS
THE NUMBER OF STATUTORY OFFENSES MULTIPLIED, THE POTENTIAL FOR UNFAIR
AND ABUSIVE REPROSECUTIONS BECAME FAR MORE PRONOUNCED.  COMMENT, TWICE
IN JEOPARDY, 75 YALE L.J. 262, 279-280; NOTE, DOUBLE JEOPARDY AND THE
CONCEPT OF IDENTITY OF OFFENSES, 7 BROOKLYN L.REV.  79, 82.  THE
FEDERAL COURTS SOON RECOGNIZED THE NEED TO PREVENT SUCH ABUSES THROUGH
THE DOCTRINE OF COLLATERAL ESTOPPEL, AND IT BECAME A SAFEGUARD FIRMLY
EMBEDDED IN FEDERAL LAW.  SEE N. 7, SUPRA.  WHETHER ITS BASIS WAS A
CONSTITUTIONAL ONE WAS A QUESTION OF NO MORE THAN ACADEMIC CONCERN
UNTIL THIS COURT'S DECISION IN BENTON V. MARYLAND, SUPRA. 

MR. JUSTICE BLACK, CONCURRING. 

I JOIN IN THE OPINION OF THE COURT ALTHOUGH I MUST REJECT ANY
IMPLICATION IN THAT OPINION THAT THE SO-CALLED DUE PROCESS TEST OF
"FUNDAMENTAL FAIRNESS" MIGHT HAVE BEEN APPROPRIATE AS A CONSTITUTIONAL
STANDARD AT SOME POINT IN THE PAST OR MIGHT HAVE A CONTINUING RELEVANCY
TODAY IN SOME AREAS OF CONSTITUTIONAL LAW.  IN MY VIEW IT IS A WHOLLY
FALLACIOUS IDEA THAT A JUDGE'S SENSE OF WHAT IS FUNDAMENTALLY "FAIR" OR
"UNFAIR" SHOULD EVER SERVE AS A SUBSTITUTE FOR THE EXPLICIT, WRITTEN
PROVISIONS OF OUR BILL OF RIGHTS.  ONE OF THESE PROVISIONS IS THE FIFTH
AMENDMENT'S PROHIBITION AGAINST PUTTING A MAN TWICE IN JEOPARDY.  ON
SEVERAL OCCASIONS I HAVE STATED MY VIEW THAT THE DOUBLE JEOPARDY CLAUSE
BARS A STATE OR THE FEDERAL GOVERNMENT OR THE TWO TOGETHER FROM
SUBJECTING A DEFENDANT TO THE HAZARDS OF TRIAL AND POSSIBLE CONVICTION
MORE THAN ONCE FOR THE SAME ALLEGED OFFENSE.  BARTKUS V. ILLINOIS, 359
U.S. 121, 150 (1969) (DISSENTING OPINION); ABBATE V. UNITED STATES, 359
U.S. 187, 201 (1959) (DISSENTING OPINION); CIUCCI V. ILLINOIS, 356 U.S.
571, 575 (1958) (DISSENTING STATEMENT); GREEN V. UNITED STATES, 355
U.S. 184 (1957).  THE OPINION OF THE COURT IN THE CASE TODAY AMPLY
DEMONSTRATES THAT THE DOCTRINE OF COLLATERAL ESTOPPEL IS A BASIC AND
ESSENTIAL PART OF THE CONSTITUTION'S PROHIBITION AGAINST DOUBLE
JEOPARDY.  ACCORDINGLY, FOR THE REASONS STATED IN THE COURT'S OPINION I
FULLY AGREE THAT PETITIONER'S CONVICTION MUST BE REVERSED. 

MR. JUSTICE HARLAN, CONCURRING. 

IF I WERE TO JUDGE THIS CASE UNDER THE TRADITIONAL STANDARDS OF
FOURTEENTH AMENDMENT DUE PROCESS, I WOULD ADHERE TO THE DECISION IN
HOAG V. NEW JERSEY, 356 U.S. 464 (1958), BELIEVING THAT REGARDLESS OF
THE REACH OF THE FEDERAL RULE OF COLLATERAL ESTOPPEL, IT WOULD HAVE
BEEN OPEN TO A STATE COURT TO TREAT THE ISSUE DIFFERENTLY.  HOWEVER,
HAVING ACCEDED IN NORTH CAROLINA V. PEARCE, 395 U.S. 711, 744 (1969),
TO THE DECISION IN BENTON V. MARYLAND, 395 U.S. 784 (1969), WHICH, OVER
MY DISSENT, HELD THAT THE FOURTEENTH AMENDMENT IMPOSES ON THE STATES
THE STANDARDS OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT, I
AM SATISFIED THAT ON THIS PRESENT RECORD ASHE'S ACQUITTAL IN THE FIRST
TRIAL BROUGHT DOUBLE JEOPARDY STANDARDS INTO PLAY.  HENCE, I JOIN THE
COURT'S OPINION.  IN DOING SO I WISH TO MAKE EXPLICIT MY UNDERSTANDING
THAT THE COURT'S OPINION IN NO WAY INTIMATES THAT THE DOUBLE JEOPARDY
CLAUSE EMBRACES TO ANY DEGREE THE "SAME TRANSACTION" CONCEPT REFLECTED
IN THE CONCURRING OPINION OF MY BROTHER BRENNAN. 

MR. JUSTICE BRENNAN, WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, CONCURRING. 

I AGREE THAT THE DOUBLE JEOPARDY CLAUSE INCORPORATES COLLATERAL
ESTOPPEL AS A CONSTITUTIONAL REQUIREMENT AND THEREFORE JOIN THE COURT'S
OPINION.  HOWEVER, EVEN IF THE RULE OF COLLATERAL ESTOPPEL HAD BEEN
INAPPLICABLE TO THE FACTS OF THIS CASE, IT IS MY VIEW THAT THE DOUBLE
JEOPARDY CLAUSE NEVERTHELESS BARS THE PROSECUTION OF PETITIONER A
SECOND TIME FOR ARMED ROBBERY.  THE TWO PROSECUTIONS, THE FIRST FOR THE
ROBBERY OF KNIGHT AND THE SECOND FOR THE ROBBERY OF ROBERTS, GREW OUT
OF ONE CRIMINAL EPISODE, AND THEREFORE I THINK IT CLEAR ON THE FACTS OF
THIS CASE THAT THE DOUBLE JEOPARDY CLAUSE PROHIBITED MISSOURI FROM
PROSECUTING PETITIONER FOR EACH ROBBERY AT A DIFFERENT TRIAL.  ABBATE
V. UNITED STATES, 359 U.S. 187, 196-201 (1959) (SEPARATE OPINION). 

MY CONCLUSION IS NOT PRECLUDED BY THE COURT'S DECISION IN HOAG V.
NEW JERSEY, 356 U.S. 464 (1958), ALTHOUGH THE BASIC FACT SITUATION
THERE WAS IDENTICAL TO THAT IN THIS CASE.  THREE ARMED MEN ENTERED A
TAVERN AND ROBBED FIVE CUSTOMERS.  HOAG WAS TRIED AND ACQUITTED UNDER
INDICTMENTS FOR ROBBING THREE OF THE CUSTOMERS.  HE WAS THEN BROUGHT TO
TRIAL UNDER A FOURTH INDICTMENT, THE SAME AS THE FIRST THREE IN ALL
RESPECTS EXCEPT THAT IT NAMED A FOURTH CUSTOMER AS THE VICTIM.  THIS
TIME HOAG WAS CONVICTED.  THE NEW JERSEY COURTS, IN REJECTING HOAG'S
DOUBLE-JEOPARDY CLAIM, CONSTRUED THE APPLICABLE NEW JERSEY STATUTE AS
MAKING EACH OF THE FOUR ROBBERIES, ALTHOUGH TAKING PLACE ON THE SAME
OCCASION, A SEPARATE OFFENSE.  THIS CONSTRUCTION WAS CONSISTENT WITH
THE STATE COURTS' VIEW THAT A CLAIM OF DOUBLE JEOPARDY CANNOT BE UPHELD
UNLESS THE SAME EVIDENCE NECESSARY TO SUSTAIN A SECOND INDICTMENT WOULD
HAVE BEEN SUFFICIENT TO SECURE A CONVICTION ON THE FIRST.  THE ISSUES
DIFFERED ONLY IN THE IDENTIFICATIONS OF THE VICTIMS AND THE PROPERTY
TAKEN FROM EACH; OTHERWISE THE STATE'S EVIDENCE COVERED THE SAME GROUND
AT BOTH TRIALS.  THIS COURT STATED THAT IT WAS UNABLE TO HOLD THAT THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT "ALWAYS PREVENTS A STATE
FROM ALLOWING DIFFERENT OFFENSES ARISING OUT OF THE SAME ACT OR
TRANSACTION TO BE PROSECUTED SEPARATELY, AS NEW JERSEY HAS DONE.  FOR
IT HAS LONG BEEN RECOGNIZED AS THE VERY ESSENCE OF OUR FEDERALISM THAT
THE STATES SHOULD HAVE THE WIDEST LATITUDE IN THE ADMINISTRATION OF
THEIR OWN SYSTEMS OF CRIMINAL JUSTICE."  356 U.S.,AT 468.  BUT IN THE
PRESENT CASE MISSOURI DID NOT HAVE "THE WIDEST LATITUDE" BECAUSE BENTON
V. MARYLAND, 395 U.S. 784 (1969), DECIDED AFTER HOAG, HELD THAT THE
FIFTH AMENDMENT GUARANTEE THAT NO PERSON SHALL "BE SUBJECT FOR THE SAME
OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB" IS ENFORCEABLE
AGAINST THE STATES, AND NORTH CAROLINA V. PEARCE, 395 U.S. 711 (1969),
ACCORDED FULLY RETROACTIVE EFFECT TO THAT HOLDING.  THIS MEANS, UNDER
OUR DECISIONS, THAT FEDERAL STANDARDS AS TO WHAT CONSTITUTES THE "SAME
OFFENCE" APPLY ALIKE TO FEDERAL AND STATE PROCEEDINGS; IT WOULD BE
INCONGRUOUS TO HAVE DIFFERENT STANDARDS DETERMINE THE VALIDITY OF A
CLAIM OF DOUBLE JEOPARDY DEPENDING ON WHETHER THE CLAIM WAS ASSERTED IN
A STATE OR FEDERAL COURT.  CF. MALLOY V. HOGAN, 378 U.S. 1, 11 (1964). 

THE DOUBLE JEOPARDY CLAUSE IS A GUARANTEE "THAT THE STATE WITH ALL
ITS RESOURCES AND POWER (SHALL) NOT BE ALLOWED TO MAKE REPEATED
ATTEMPTS TO CONVICT AN INDIVIDUAL FOR AN ALLEGED OFFENSE, THEREBY
SUBJECTING HIM TO EMBARRASSMENT, EXPENSE AND ORDEAL AND COMPELLING HIM
TO LIVE IN A CONTINUING STATE OF ANXIETY AND INSECURITY . . . . "
GREEN V. UNITED STATES, 355 U.S. 184, 187 (1957).  THIS GUARANTEE IS
EXPRESSED AS A PROHIBITION AGAINST MULTIPLE PROSECUTIONS FOR THE "SAME
OFFENCE."  ALTHOUGH THE PHRASE "SAME OFFENCE" APPEARED IN MOST OF THE
EARLY COMMON-LAW ARTICULATIONS OF THE DOUBLE-JEOPARDY PRINCIPLE, /1/
QUESTIONS OF ITS PRECISE MEANING RARELY AROSE PRIOR TO THE 18TH
CENTURY, AND BY THE TIME THE BILL OF RIGHTS WAS ADOPTED IT HAD NOT BEEN
AUTHORITATIVELY DEFINED.  /2/     WHEN THE COMMON LAW DID FINALLY
ATTEMPT A DEFINITION, IN THE KING V. VANDERCOMB, 2 LEACH 708, 720, 168
ENG.REP.  455, 461 (CROWN 1796), IT ADOPTED THE "SAME EVIDENCE" TEST,
WHICH PROVIDED LITTLE PROTECTION FROM MULTIPLE PROSECUTION: 
"(UNLESS THE FIRST INDICTMENT WERE SUCH AS THE PRISONER MIGHT HAVE BEEN
CONVICTED UPON BY PROOF OF THE FACTS CONTAINED IN THE SECOND
INDICTMENT, AN ACQUITTAL ON THE FIRST INDICTMENT CAN BE NO BAR TO THE
SECOND."  THE "SAME EVIDENCE" TEST OF "SAME OFFENCE" WAS SOON FOLLOWED
BY A MAJORITY OF AMERICAN JURISDICTIONS, BUT ITS DEFICIENCIES ARE
OBVIOUS.  IT DOES NOT ENFORCE BUT VIRTUALLY ANNULS THE CONSTITUTIONAL
GUARANTEE.  FOR EXAMPLE, WHERE A SINGLE CRIMINAL EPISODE INVOLVES
SEVERAL VICTIMS, UNDER THE "SAME EVIDENCE" TEST A SEPARATE PROSECUTION
MAY BE BROUGHT AS TO EACH.  E.G., STATE V. HOAG, 21 N.J. 496, 122 A.2D
628 (1956), AFF'D, 356 U.S. 464 (1958).  THE "SAME EVIDENCE" TEST
PERMITS MULTIPLE PROSECUTIONS WHERE A SINGLE TRANSACTION IS DIVISIBLE
INTO CHRONOLOGICALLY DISCRETE CRIMES.  E.G., JOHNSON V. COMMONWEALTH,
201 KY. 314, 256 S.W. 388 (1923) (EACH OF 75 POKER HANDS A SEPARATE
"OFFENSE").  EVEN A SINGLE CRIMINAL ACT MAY LEAD TO MULTIPLE
PROSECUTIONS IF IT IS VIEWED FROM THE PERSPECTIVES OF DIFFERENT
STATUTES.  E.G., STATE V. ELDER, 65 IND. 282 (1879).  GIVEN THE
TENDENCY OF MODERN CRIMINAL LEGISLATION TO DIVIDE THE PHASES OF A
CRIMINAL TRANSACTION INTO NUMEROUS SEPARATE CRIMES, THE OPPORTUNITIES
FOR MULTIPLE PROSECUTIONS FOR AN ESSENTIALLY UNITARY CRIMINAL EPISODE
ARE FRIGHTENING.  AND GIVEN OUR TRADITION OF VIRTUALLY UNREVIEWABLE
PROSECUTORIAL DISCRETION CONCERNING THE INITIATION AND SCOPE OF A
CRIMINAL PROSECUTION, /3/  THE POTENTIALITIES FOR ABUSE INHERENT IN THE
"SAME EVIDENCE" TEST ARE SIMPLY INTOLERABLE.  /4/ 

THE "SAME EVIDENCE" TEST IS NOT CONSTITUTIONALLY REQUIRED.  IT WAS
FIRST EXPOUNDED AFTER THE ADOPTION OF THE FIFTH AMENDMENT, AND, AS
SHOWN IN ABBATE V. UNITED STATES, SUPRA, AT 197-198 AND N. 2, HAS NEVER
BEEN SQUARELY HELD BY THIS COURT TO BE THE REQUIRED CONSTRUCTION OF THE
CONSTITUTIONAL PHRASE "SAME OFFENCE" IN A CASE INVOLVING MULTIPLE
TRIALS; INDEED, IN THAT CONTEXT IT HAS BEEN REJECTED.  SEE IN RE
NIELSEN, 131 U.S. 176 (1889), DISCUSSED IN ABBATE V. UNITED STATES,
SUPRA, AT 201.  THE "SAME EVIDENCE" TEST MAY ONCE HAVE BEEN DEFENSIBLE
AT ENGLISH COMMON LAW, WHICH, FOR REASONS PECULIAR TO ENGLISH CRIMINAL
PROCEDURE, SEVERELY RESTRICTED THE POWER OF PROSECUTORS TO COMBINE
SEVERAL CHARGES IN A SINGLE TRIAL.  /5/  IN VIVID CONTRAST, AMERICAN
CRIMINAL PROCEDURE GENERALLY ALLOWS A PROSECUTOR FREEDOM, SUBJECT TO
JUDICIAL CONTROL, TO PROSECUTE A PERSON AT ONE TRIAL FOR ALL THE CRIMES
ARISING OUT OF A SINGLE CRIMINAL TRANSACTION.  /6/ 

IN MY VIEW, THE DOUBLE JEOPARDY CLAUSE REQUIRES THE PROSECUTION,
EXCEPT IN MOST LIMITED CIRCUMSTANCES, /7/  TO JOIN AT ONE TRIAL ALL THE
CHARGES AGAINST A DEFENDANT THAT GROW OUT OF A SINGLE CRIMINAL ACT,
OCCURRENCE, EPISODE, OR TRANSACTION.  THIS "SAME TRANSACTION" TEST OF
"SAME OFFENCE" NOT ONLY ENFORCES THE ANCIENT PROHIBITION AGAINST
VEXATIOUS MULTIPLE PROSECUTIONS EMBODIED IN THE DOUBLE JEOPARDY CLAUSE,
BUT RESPONDS AS WELL TO THE INCREASINGLY WIDESPREAD RECOGNITION THAT
THE CONSOLIDATION IN ONE LAWSUIT OF ALL ISSUES ARISING OUT OF A SINGLE
TRANSACTION OR OCCURRENCE BEST PROMOTES JUSTICE, ECONOMY, AND
CONVENIENCE.  /8/  MODERN RULES OF CRIMINAL AND CIVIL PROCEDURE REFLECT
THIS RECOGNITION.  SEE UNITED MINE WORKERS V. GIBBS, 383 U.S. 715, 724
726 (1966).  ALTHOUGH IN 1935 THE AMERICAN LAW INSTITUTE ADOPTED THE
"SAME EVIDENCE" TEST, IT HAS SINCE REPLACED IT WITH THE "SAME
TRANSACTION" TEST.  /9/  ENGLAND, TOO, HAS ABANDONED ITS SURVIVING
RULES AGAINST JOINDER OF CHARGES AND HAS ADOPTED THE "SAME TRANSACTION"
TEST.  /10/ THE FEDERAL RULES OF CRIMINAL PROCEDURE LIBERALLY ENCOURAGE
THE JOINING OF PARTIES AND CHARGES IN A SINGLE TRIAL.  RULE 8(A)
PROVIDES FOR JOINDER OF CHARGES THAT ARE SIMILAR IN CHARACTER, OR ARISE
FROM THE SAME TRANSACTION OR FROM CONNECTED TRANSACTIONS OR FORM PART
OF A COMMON SCHEME OR PLAN.  RULE 8(B) PROVIDES FOR JOINDER OF
DEFENDANTS.  RULE 13 PROVIDES FOR JOINDER OF SEPARATE INDICTMENTS OR
INFORMATIONS IN A SINGLE TRIAL WHERE THE OFFENSES ALLEGED COULD HAVE
BEEN INCLUDED IN ONE INDICTMENT OR INFORMATION.  /11/  THESE RULES
REPRESENT CONSIDERED MODERN THOUGHT CONCERNING THE PROPER STRUCTURING
OF CRIMINAL LITIGATION. 

THE SAME THOUGHT IS REFLECTED IN THE FEDERAL RULES OF CIVIL
PROCEDURE.  A PERVASIVE PURPOSE OF THOSE RULES IS TO REQUIRE OR
ENCOURAGE THE CONSOLIDATION OF RELATED CLAIMS IN A SINGLE LAWSUIT. 
RULE 13 MAKES COMPULSORY (UPON PAIN OF A BAR) ALL COUNTERCLAIMS ARISING
OUT OF THE SAME TRANSACTION OR OCCURRENCE FROM WHICH THE PLAINTIFF'S
CLAIM AROSE.  RULE 14 EXTENDS THIS COMPULSION TO THIRD-PARTY
DEFENDANTS.  RULE 18 PERMITS VERY BROAD JOINDER OF CLAIMS,
COUNTERCLAIMS, CROSS-CLAIMS, AND THIRD-PARTY CLAIMS.  RULES 19, 20, AND
24 PROVIDE FOR JOINDER OF PARTIES AND INTERVENTION BY PARTIES HAVING
CLAIMS RELATED TO THE SUBJECT MATTER OF THE ACTION.  RULE 23 PERMITS
THE CONSOLIDATION OF SEPARATE CLAIMS IN A CLASS ACTION; SEE
PARTICULARLY RULE 23(B)(3). 

IN ADDITION, PRINCIPLES OF RES JUDICATA AND COLLATERAL ESTOPPEL
CAUTION THE CIVIL PLAINTIFF AGAINST SPLITTING HIS CASE.  THE DOCTRINE
OF PENDENT JURISDICTION HAS FURTHERED SINGLE TRIALS OF RELATED CASES. 
SEE UNITED MINE WORKERS V. GIBBS, SUPRA.  MOREOVER, WE HAVE RECOGNIZED
THE JURISDICTION OF THREE-JUDGE COURTS TO HEAR STATUTORY CLAIMS PENDENT
TO THE CONSTITUTIONAL CLAIM THAT REQUIRED THEIR CONVENING.  SEE, E.G.,
UNITED STATES V. GEORGIA PUB. SERV. COMM'N, 371 U.S. 285, 287-288
(1963); KING V. SMITH, 392 U.S. 309 (1968). 

IT IS TRUE THAT THESE DEVELOPMENTS HAVE NOT BEEN OF A CONSTITUTIONAL
DIMENSION, AND THAT MANY OF THEM ARE PERMISSIVE AND DISCRETIONARY
RATHER THAN MANDATORY.  FLEXIBILITY IN THE RULES GOVERNING THE
STRUCTURE OF CIVIL LITIGATION IS APPROPRIATE IN ORDER TO GIVE THE
PARTIES THE OPPORTUNITY TO SHAPE THEIR OWN PRIVATE LAWSUITS, PROVIDED
THAT INJUSTICE, HARASSMENT, OR AN UNDUE BURDEN ON THE COURTS DOES NOT
RESULT.  SOME FLEXIBILITY IN THE STRUCTURING OF CRIMINAL LITIGATION IS
ALSO DESIRABLE AND CONSISTENT WITH OUR TRADITIONS.  BUT THE DOUBLE
JEOPARDY CLAUSE STANDS AS A CONSTITUTIONAL BARRIER AGAINST POSSIBLE
TYRANNY BY THE OVERZEALOUS PROSECUTOR.  THE CONSIDERATIONS OF JUSTICE,
ECONOMY, AND CONVENIENCE THAT HAVE PROPELLED THE MOVEMENT FOR
CONSOLIDATION OF CIVIL CASES APPLY WITH EVEN GREATER FORCE IN THE
CRIMINAL CONTEXT BECAUSE OF THE CONSTITUTIONAL PRINCIPLE THAT NO MAN
SHALL BE VEXED MORE THAN ONCE BY TRIAL FOR THE SAME OFFENSE.  /12/
YET, IF THE DOUBLE JEOPARDY CLAUSE WERE INTERPRETED BY THIS COURT TO
INCORPORATE THE "SAME EVIDENCE" TEST, CRIMINAL DEFENDANTS WOULD HAVE
LESS PROTECTION FROM MULTIPLE TRIALS THAN CIVIL DEFENDANTS.  THIS
ANOMALY WOULD BE INTOLERABLE.  IT WAS CONDEMNED BY A NEW JERSEY COURT
NEARLY A CENTURY AND A HALF AGO IN WORDS EVEN MORE APPLICABLE TODAY: 

     "IF IN CIVIL CASES, THE LAW ABHORS A MULTIPLICITY OF SUITS, IT

  IS YET MORE WATCHFUL IN CRIMINAL CASES,THAT THE CROWN SHALL NOT

  OPPRESS THE SUBJECT, OR THE GOVERNMENT THE CITIZEN, BY

  UNNECESSARY PROSECUTIONS.  . . . (THIS) IS A CASE WHERE THE STATE

  HAS THOUGHT PROPER TO PROSECUTE THE OFFENCE IN ITS MILDEST FORM,

  AND IT IS BETTER THAT THE RESIDUE OF THE OFFENCE GO UNPUNISHED,

  THAN BY SUSTAINING A SECOND INDICTMENT TO SANCTION A PRACTICE

  WHICH MIGHT BE RENDERED AN INSTRUMENT OF OPPRESSION TO THE

  CITIZEN."  STATE V. COOPER, 13 N.J.L. 361, 375-376 (1833). 

THE PRESENT CASE HIGHLIGHTS THE HAZARDS OF ABUSE OF THE CRIMINAL
PROCESS INHERENT IN THE "SAME EVIDENCE" TEST AND DEMONSTRATES THE
NECESSITY FOR THE "SAME TRANSACTION" TEST.  THE ROBBERY OF THE POKER
GAME INVOLVED SIX PLAYERS-- GLADSON, KNIGHT, FREEMAN, GOODWIN,
MCCLENDON, AND ROBERTS.  THE ROBBERS ALSO STOLE A CAR.  SEVEN SEPARATE
INFORMATIONS WERE FILED AGAINST THE PETITIONER, ONE COVERING EACH OF
THE ROBBERY VICTIMS, AND THE SEVENTH COVERING THE THEFT OF THE CAR. 
PETITIONER'S FIRST TRIAL WAS UNDER THE INFORMATION CHARGING THE ROBBERY
OF KNIGHT.  SINCE MISSOURI HAS OFFERED NO JUSTIFICATION FOR NOT TRYING
THE OTHER INFORMATIONS AT THAT TRIAL, IT IS REASONABLE TO INFER THAT
THE OTHER INFORMATIONS WERE HELD IN RESERVE TO BE TRIED IF THE STATE
FAILED TO OBTAIN A CONVICTION ON THE CHARGE OF ROBBING KNIGHT.  INDEED,
THE STATE VIRTUALLY CONCEDES AS MUCH SINCE IT ARGUES THAT THE "SAME
EVIDENCE" TEST IS CONSISTENT WITH SUCH AN EXERCISE OF PROSECUTORIAL
DISCRETION. 

FOUR OF THE ROBBERY VICTIMS TESTIFIED AT THE TRIAL.  THEIR TESTIMONY
CONFLICTED AS TO WHETHER THERE WERE THREE OR FOUR ROBBERS.  GLADSON
TESTIFIED THAT HE SAW FOUR ROBBERS, BUT COULD IDENTIFY ONLY ONE, A MAN
NAMED BROWN.  MCCLENDON TESTIFIED THAT HE SAW ONLY THREE MEN AT ANY ONE
TIME DURING THE COURSE OF THE ROBBERY, AND HE POSITIVELY IDENTIFIED
BROWN, LARSON, AND JOHNSON; HE ALSO THOUGHT HE HEARD PETITIONER'S VOICE
DURING THE ROBBERY, BUT SAID HE WAS NOT SURE.  KNIGHT THOUGHT ONLY
THREE MEN PARTICIPATED IN THE ROBBERY, AND HE COULD NOT IDENTIFY
ANYONE.  ROBERTS SAID HE SAW FOUR DIFFERENT MEN AND HE IDENTIFIED THEM
AS BROWN, LARSON, JOHNSON, AND PETITIONER.  UNDER CROSS-EXAMINATION, HE
CONCEDED THAT HE DID NOT RECOGNIZE PETITIONER'S VOICE, AND THAT HE DID
NOT SEE HIS FACE OR HIS HANDS.  HE MAINTAINED THAT HE COULD IDENTIFY
HIM BY HIS "SIZE AND HEIGHT" EVEN THOUGH ALL THE ROBBERS HAD WORN
OUTSIZED CLOTHING, AND EVEN THOUGH HE COULD NOT CONNECT PETITIONER WITH
THE ACTIONS OF ANY OF THE ROBBERS.  ON THIS EVIDENCE THE JURY ACQUITTED
PETITIONER. 

AT THE SECOND TRIAL, FOR THE ROBBERY OF ROBERTS, MCCLENDON WAS NOT
CALLED AS A WITNESS.  GLADSON, WHO PREVIOUSLY HAD BEEN ABLE TO IDENTIFY
ONLY ONE MAN-- BROWN-- NOW WAS ABLE TO IDENTIFY THREE-- BROWN, LARSON,
AND PETITIONER.  ON A NUMBER OF DETAILS HIS MEMORY WAS MUCH MORE VIVID
THAN IT HAD BEEN AT THE FIRST TRIAL.  KNIGHT'S TESTIMONY WAS
SUBSTANTIALLY THE SAME AS AT THE FIRST TRIAL-- HE STILL WAS UNABLE TO
IDENTIFY ANY OF THE ROBBERS.  ROBERTS, WHO PREVIOUSLY HAD IDENTIFIED
PETITIONER ONLY BY HIS SIZE AND HEIGHT, NOW IDENTIFIED HIM BY HIS SIZE,
ACTIONS, VOICE, AND A PECULIAR MOVEMENT OF HIS MOUTH.  AS MIGHT BE
EXPECTED, THIS FAR STRONGER IDENTIFICATION EVIDENCE BROUGHT A VIRTUALLY
INEVITABLE CONVICTION. 

THE PROSECUTION PLAINLY ORGANIZED ITS CASE FOR THE SECOND TRIAL TO
PROVIDE THE LINKS MISSING IN THE CHAIN OF IDENTIFICATION EVIDENCE THAT
WAS OFFERED AT THE FIRST TRIAL.  MCCLENDON, WHO WAS AN UNHELPFUL
WITNESS AT THE FIRST TRIAL WAS NOT CALLED AT THE SECOND TRIAL.  THE
HESITANT AND UNCERTAIN EVIDENCE OF GLADSON AND ROBERTS AT THE FIRST
TRIAL BECAME DETAILED, POSITIVE, AND EXPANSIVE AT THE SECOND TRIAL. 
ONE MUST EXPERIENCE A SENSE OF UNEASINESS WITH ANY DOUBLE-JEOPARDY
STANDARD THAT WOULD ALLOW THE STATE THIS SECOND CHANCE TO PLUG UP THE
HOLES IN ITS CASE.  THE CONSTITUTIONAL PROTECTION AGAINST DOUBLE
JEOPARDY IS EMPTY OF MEANING IF THE STATE MAY MAKE "REPEATED ATTEMPTS"
TO TOUCH UP ITS CASE BY FORCING THE ACCUSED TO "RUN THE GANTLET" AS
MANY TIMES AS THERE ARE VICTIMS OF A SINGLE EPISODE. 

FORTUNATELY FOR PETITIONER, THE CONVICTION AT THE SECOND TRIAL CAN
BE REVERSED UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, SINCE THE JURY
AT THE FIRST TRIAL CLEARLY RESOLVED IN HIS FAVOR THE ONLY CONTESTED
ISSUE AT THAT TRIAL, WHICH WAS THE IDENTIFICATION OF HIM AS ONE OF THE
ROBBERS.  THERE IS AT LEAST DOUBT WHETHER COLLATERAL ESTOPPEL WOULD
HAVE AIDED HIM HAD THE JURY BEEN REQUIRED TO RESOLVE ADDITIONAL
CONTESTED ISSUES ON CONFLICTING EVIDENCE.  /13/  BUT CORRECTION OF THE
ABUSE OF CRIMINAL PROCESS SHOULD NOT IN ANY EVENT BE MADE TO DEPEND ON
THE AVAILABILITY OF COLLATERAL ESTOPPEL.  ABUSE OF THE CRIMINAL PROCESS
IS FOREMOST AMONG THE FEARED EVILS THAT LED TO THE INCLUSION OF THE
DOUBLE JEOPARDY CLAUSE IN THE BILL OF RIGHTS.  THAT EVIL WILL BE MOST
EFFECTIVELY AVOIDED, AND THE CLAUSE CAN THUS BEST SERVE ITS WORTHY
ENDS, IF "SAME OFFENCE" IS CONTRUED TO EMBODY THE "SAME TRANSACTION"
STANDARD.  THEN BOTH FEDERAL AND STATE PROSECUTORS WILL BE PROHIBITED
FROM MOUNTING SUCCESSIVE PROSECUTIONS FOR OFFENSES GROWING OUT OF THE
SAME CRIMINAL EPISODE, AT LEAST IN THE ABSENCE OF A SHOWING OF
UNAVOIDABLE NECESSITY FOR SUCCESSIVE PROSECUTIONS IN THE PARTICULAR
CASE.  /14/ 

/1/  SEE, E.G., VAUX'S CASE, 4 CO.REP.  44A, 45A, 76 ENG.REP.  992,
993 (K.B. 1591); 2 M.HALE, PLEAS OF THE CROWN **240-255 ("SAME
FELONY"); 2 W.HAWKINS, PLEAS OF THE CROWN 515 (8TH ED. 1824); 4
W.BLACKSTONE, COMMENTARIES *335. 

/2/  SEE GENERALLY J. SIGLER, DOUBLE JEOPARDY 1-37 (1969). 

/3/  SEE BAKER, THE PROSECUTOR-- INITIATION OF PROSECUTION, 23
J.CRIM.L. & C. 770 (1933); BAKER & DELONG, THE PROSECUTING ATTORNEY--
POWERS AND DUTIES IN CRIMINAL PROSECUTION, 24 J.CRIM.L. & C. 1025
(1934); KAPLAN, THE PROSECUTORIAL DISCRETION-- A COMMENT, 60
NW.U.L.REV.  174 (1965); NOTE, PROSECUTOR'S DISCRETION, 103
U.PA.L.REV.  1057 (1955); NOTE, DISCRETION EXERCISED BY MONTANA COUNTY
ATTORNEYS IN CRIMINAL PROSECUTIONS, 28 MONT.L.REV.  41 (1966); NOTE,
PROSECUTORIAL DISCRETION IN THE INITIATION OF CRIMINAL COMPLAINTS, 42
SO.CAL.L.REV.  519 (1969). 

/4/  SEVERAL SUBSIDIARY RULES HAVE BEEN DEVELOPED IN ATTEMPTS TO
ELIMINATE ANOMALIES RESULTING FROM THE "SAME EVIDENCE" TEST.  THUS,
WHERE ONE OFFENSE IS INCLUDED IN ANOTHER, PROSECUTION FOR ONE BARS
REPROSECUTION FOR THE OTHER EVEN THOUGH THE EVIDENCE NECESSARY TO PROVE
THE TWO OFFENSES IS DIFFERENT.  SIMILARLY, DOCTRINES OF RES JUDICATA
AND COLLATERAL ESTOPPEL HAVE PROVIDED SOME, THOUGH NOT VERY MUCH,
RELIEF FROM THE EXTREME PERMISSIVENESS OF THE TEST.  SEE GENERALLY
KIRCHHEIMER, THE ACT, THE OFFENSE AND DOUBLE JEOPARDY, 58 YALE L.J. 513
(1949).  NUMEROUS PRACTICAL EXCEPTIONS TO THE TEST ARE DISCUSSED IN
HORACK, THE MULTIPLE CONSEQUENCES OF A SINGLE CRIMINAL ACT, 21
MINN.L.REV.  805 (1937).  SO MANY EXCEPTIONS TO THE "SAME EVIDENCE"
RULE HAVE BEEN FOUND NECESSARY THAT IT IS HARDLY A RULE AT ALL; YET THE
NUMEROUS EXCEPTIONS HAVE NOT SUCCEEDED IN WHOLLY PREVENTING
PROSECUTORIAL ABUSE.     /5/  AS MR. JUSTICE FRANKFURTER HAS SAID,
"SINCE THE PROHIBITION IN THE CONSTITUTION AGAINST DOUBLE JEOPARDY IS
DERIVED FROM HISTORY, ITS SIGNIFICANCE AND SCOPE MUST BE DETERMINED,
'NOT SIMPLY BY TAKING THE WORDS AND A DICTIONARY, BUT BY CONSIDERING
(ITS) . . . ORIGIN AND THE LINE OF (ITS) . . . GROWTH.'"  GREEN V.
UNITED STATES, SUPRA, AT 199 (DISSENTING OPINION).  THE RELATION
BETWEEN THE HISTORY OF ENGLISH CRIMINAL PROCEDURE AND THE HISTORY OF
THE COMMON LAW OF DOUBLE JEOPARDY IS COMPREHENSIVELY EXAMINED IN M.
FRIEDLAND, DOUBLE JEOPARDY (1969).  SEE IN PARTICULAR PP. 161-194. 

/6/  SEE, E.G., FED. RULES CRIM. PROC. 8, 13, 14; ILL. REV. STAT.,
C. 38, SEC. 3-3 (1967); ANN., 59 A.L.R.2D 841 (1958). 

/7/  FOR EXAMPLE, WHERE A CRIME IS NOT COMPLETED OR NOT DISCOVERED,
DESPITE DILIGENCE ON THE PART OF THE POLICE, UNTIL AFTER THE
COMMENCEMENT OF A PROSECUTION FOR OTHER CRIMES ARISING FROM THE SAME
TRANSACTION, AN EXCEPTION TO THE "SAME TRANSACTION" RULE SHOULD BE MADE
TO PERMIT A SEPARATE PROSECUTION.  SEE, E.G., DIAZ V. UNITED STATES,
223 U.S. 442, 448-449 (1912).  CF. ALI, MODEL PENAL CODE, PROPOSED
OFFICIAL DRAFT SECS. 1.07(2), 1.09(1)(B) (1962); CONNELLY V. D.P.P.,
(1964) A.C. 1254, 1360.  ANOTHER EXCEPTION WOULD BE NECESSARY IF NO
SINGLE COURT HAD JURISDICTION OF ALL THE ALLEGED CRIMES.  AN ADDITIONAL
EXCEPTION IS DISCUSSED IN N. 11, INFRA. 

/8/  ADMITTEDLY, THE PHRASE "SAME TRANSACTION" IS NOT SELF
DEFINING.  GUIDANCE FOR ITS APPLICATION CAN BE OBTAINED FROM CASES
INTERPRETING THE PHRASE AS IT IS USED IN THE FEDERAL RULES OF CRIMINAL
PROCEDURE.  SEE IN PARTICULAR CASES UNDER RULE 8(A).  ALTHOUGH
ANALOGIES TO THE USE OF THE PHRASE IN CIVIL LITIGATION ARE NOT PERFECT
SINCE POLICY CONSIDERATIONS DIFFER, SOME FURTHER GUIDANCE FOR ITS
APPLICATION IN THE PRESENT CONTEXT CAN BE OBTAINED FROM THE COURSE OF
ITS APPLICATION IN CIVIL LITIGATION, WHERE THE COURTS HAVE NOT
ENCOUNTERED GREAT DIFFICULTY IN REACHING SOUND RESULTS IN PARTICULAR
CASES.  SEE 3 J.MOORE, FEDERAL PRACTICE PARA. 13.13 (1968); 1A W.
BARRON & A.HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE 394 (WRIGHT ED.
1960).  ADDITIONAL GUIDANCE MAY BE FOUND IN CASES DEVELOPING THE
STANDARD OF "COMMON NUCLEUS OF OPERATIVE FACT," UNITED MINE WORKERS V.
GIBBS, 383 U.S. 715, 725 (1966), FOR PURPOSES OF PENDENT JURISDICTION. 
SEE GENERALLY NOTE, UMW V. GIBBS AND PENDENT JURISDICTION, 81
HARV.L.REV.  657, 660-662 (1968). 

/9/  COMPARE ALI, ADMINISTRATION OF THE CRIMINAL LAW, OFFICIAL
DRAFT:  DOUBLE JEOPARDY SEC. 5 (1935) WITH ALI, MODEL PENAL CODE,
PROPOSED OFFICIAL DRAFT SECS. 1.07(2), 1.09(1)(B) (1962).  SEE ALSO
ILL. REV. STAT., C. 38, SECS. 3-3, 3-4(B)(1) (1967). 

/10/  SEE CONNELLY V. D.P.P., (1964) A.C. 1254. 

/11/  RULE 14 PROVIDES FOR SEPARATE TRIALS UNDER COURT ORDER WHERE
JOINDER WOULD BE PREJUDICIAL TO EITHER THE PROSECUTION OR THE DEFENSE. 
CF. FED. RULE CIV. PROC. 42.  EVEN WHERE SEPARATE TRIALS ARE PERMITTED
TO AVOID PREJUDICIAL JOINDER, THE "SAME TRANSACTION" RULE CAN SERVE A
USEFUL PURPOSE SINCE THE DEFENDANT IS AT LEAST INFORMED AT ONE TIME OF
ALL THE CHARGES ON WHICH HE WILL ACTUALLY BE TRIED, AND CAN PREPARE HIS
DEFENSE ACCORDINGLY.  MOREOVER, THE DECISION ON WHETHER CHARGES ARE TO
BE TRIED JOINTLY OR SEPARATELY WILL REST WITH THE JUDGE RATHER THAN THE
PROSECUTOR.  AND SEPARATE TRIALS MAY NOT BE ORDERED, OF COURSE, WHERE
THE PROOFS WILL BE REPETITIOUS, OR THE MULTIPLICITY OF TRIALS
VEXATIOUS, OR WHERE THE MULTIPLICITY WILL ENABLE THE PROSECUTION TO USE
THE EXPERIENCE OF THE FIRST TRIAL TO STRENGTHEN ITS CASE IN A
SUBSEQUENT TRIAL. 

/12/  JOINDER OF DEFENDANTS, AS DISTINGUISHED FROM JOINDER OF
OFFENSES, REQUIRES SEPARATE ANALYSIS.  FOR EXAMPLE, JOINDER OF
DEFENDANTS CAN LEAD TO SIXTH AMENDMENT PROBLEMS.  SEE, E.G., BRUTON V.
UNITED STATES, 391 U.S. 123 (1968). 

/13/  AND, OF COURSE, COLLATERAL ESTOPPEL WOULD NOT PREVENT MULTIPLE
PROSECUTIONS WHEN THE FIRST TRIAL ENDS IN A VERDICT OF GUILTY. 

/14/  THE QUESTION OF SEPARATE TRIALS FOR DIFFERENT CRIMES COMMITTED
DURING A SINGLE CRIMINAL TRANSACTION IS ENTIRELY DISTINCT FROM AND
INDEPENDENT OF THE QUESTION OF PROSECUTORIAL DISCRETION TO SELECT THE
CHARGES ON WHICH A DEFENDANT SHALL BE PROSECUTED; AND, AS EXPLAINED IN
MY SEPARATE OPINION IN ABBATE, SUPRA, AT 198-199, IT IS ALSO DISTINCT
FROM AND INDEPENDENT OF THE QUESTION OF THE IMPOSITION OF SEPARATE
PUNISHMENTS FOR DIFFERENT CRIMES COMMITTED DURING A SINGLE
TRANSACTION.  THE DOUBLE JEOPARDY CLAUSE DOES NOT LIMIT THE POWER OF
CONGRESS AND THE STATES TO SPLIT A SINGLE TRANSACTION INTO SEPARATE
CRIMES SO AS TO GIVE THE PROSECUTION A CHOICE OF CHARGES.  CF. GORE V.
UNITED STATES, 357 U.S. 386, 395 (1958) (DOUGLAS, J., DISSENTING). 
MOREOVER, THE CLAUSE DOES NOT, AS A GENERAL MATTER, PROHIBIT THE
IMPOSITION AT ONE TRIAL OF CUMULATIVE PENALTIES FOR DIFFERENT CRIMES
COMMITTED DURING ONE TRANSACTION.  SEE MY SEPARATE OPINION IN ABBATE,
SUPRA.  THUS NO CRIME NEED GO UNPUNISHED.  HOWEVER, THE CLAUSE DOES
PROVIDE AN OUTER LIMIT ON THE POWER OF FEDERAL AND STATE COURTS TO
IMPOSE CUMULATIVE PUNISHMENTS FOR A SINGLE CRIMINAL TRANSACTION.  SEE
GORE V. UNITED STATES, SUPRA, AT 397-398 (BRENNAN, J., DISSENTING). 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
PROVIDES IN PART:  "NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME
OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB . . . . "  NOTHING
IN THE LANGUAGE OR GLOSS PREVIOUSLY PLACED ON THIS PROVISION OF THE
FIFTH AMENDMENT REMOTELY JUSTIFIES THE TREATMENT THAT THE COURT TODAY
ACCORDS TO THE COLLATERAL-ESTOPPEL DOCTRINE.  NOTHING IN THE PURPOSE OF
THE AUTHORS OF THE CONSTITUTION COMMANDS OR EVEN JUSTIFIES WHAT THE
COURT DECIDED TODAY; THIS IS TRULY A CASE OF EXPANDING A SOUND BASIC
PRINCIPLE BEYOND THE BOUNDS-- OR NEEDS-- OF ITS RATIONAL AND LEGITIMATE
OBJECTIVES TO PRECLUDE HARASSMENT OF AN ACCUSED. 

   I 

CERTAIN FACTS ARE NOT IN DISPUTE.  THE HOME OF JOHN GLADSON WAS THE
SCENE OF "A FRIENDLY GAME OF POKER" IN THE EARLY HOURS OF THE MORNING
OF JANUARY 10, 1960.  SIX MEN-- GLADSON, KNIGHT, FREEMAN, GOODWIN,
MCCLENDON, AND ROBERTS-- WERE PLAYING CARDS IN THE BASEMENT.  WHILE THE
GAME WAS IN PROGRESS, THREE MEN, ARMED WITH A SAWED-OFF SHOTGUN AND
PISTOLS, BROKE INTO THE HOUSE AND FORCED THEIR WAY INTO THE BASEMENT. 
THEY ORDERED THE PLAYERS TO REMOVE THEIR TROUSERS AND TIED THEM UP,
EXCEPT FOR GLADSON WHO HAD A HEART CONDITION OF WHICH THE ROBBERS
SEEMED TO BE AWARE.  SUBSTANTIAL AMOUNTS OF CURRENCY AND CHECKS WERE
TAKEN FROM THE POKER TABLE AND ITEMS OF PERSONAL PROPERTY WERE TAKEN
FROM THE PERSONS OF THE PLAYERS.  DURING THE SAME PERIOD IN WHICH THE
MEN WERE BEING ROBBED IN THE BASEMENT, ONE MAN ENTERED MRS. GLADSON'S
BEDROOM THREE FLOORS ABOVE, RIPPED OUT THE TELEPHONE THERE, TIED HER
WITH THE TELEPHONE CORD, AND REMOVED THE WEDDING RING FROM HER FINGER. 
THE ROBBERS THEN FLED IN A CAR BELONGING TO ROBERTS. 

FOUR MEN-- ASHE, JOHNSON, LARSON, AND BROWN-- WERE ARRESTED LATER IN
THE MORNING OF THE ROBBERY.  EACH WAS SUBSEQUENTLY CHARGED IN A
SEPARATE INFORMATION WITH THE ROBBERY OF EACH OF THE SIX VICTIMS. 
ASHE, JOHNSON, AND LARSON WERE ALSO CHARGED WITH THE THEFT OF THE CAR
BELONGING TO ROBERTS. 

ASHE WENT TO TRIAL ON MAY 2, 1960, ON THE CHARGE OF ROBBING KNIGHT. 
NO CHARGE AS TO OTHER VICTIMS WAS PRESENTED.  FOUR OF THE SIX MEN--
KNIGHT, GLADSON, MCCLENDON, AND ROBERTS-- TESTIFIED ABOUT THE ROBBERY
AND DESCRIBED THEIR INDIVIDUAL LOSSES.  MRS. GLADSON DID NOT TESTIFY
BECAUSE SHE WAS ILL ON THE DAY OF TRIAL.  AS MR. JUSTICE BRENNAN HAS
STATED,THE VICTIMS' TESTIMONY CONFLICTED AS TO WHETHER THERE WERE THREE
OR FOUR ROBBERS: 

"GLADSON TESTIFIED THAT HE SAW FOUR ROBBERS, BUT COULD IDENTIFY ONLY
ONE, A MAN NAMED BROWN.  MCCLENDON TESTIFIED THAT HE SAW ONLY THREE MEN
AT ANY ONE TIME DURING THE COURSE OF THE ROBBERY, AND HE POSITIVELY
IDENTIFIED BROWN, LARSON, AND JOHNSON; HE ALSO THOUGHT HE HEARD
PETITIONER'S VOICE DURING THE ROBBERY, BUT SAID HE WAS NOT SURE. 
KNIGHT THOUGHT ONLY THREE MEN PARTICIPATED IN THE ROBBERY, AND HE COULD
NOT IDENTIFY ANYONE.  ROBERTS SAID HE SAW FOUR DIFFERENT MEN AND HE
IDENTIFIED THEM AS BROWN, LARSON, JOHNSON, AND PETITIONER."  ANTE, AT
458. 

ASHE PUT IN NO EVIDENCE WHATEVER, AS WAS HIS RIGHT, AND EVEN WAIVED
CLOSING ARGUMENTS TO THE JURY; NONETHELESS, THE JURY DID NOT REACH A
VERDICT OF GUILTY BUT RETURNED A SOMEWHAT UNORTHODOX VERDICT OF "NOT
GUILTY DUE TO INSUFFICIENT EVIDENCE." 

THEN, ON JUNE 20, 1960, ASHE WAS TRIED FOR THE ROBBERY OF ROBERTS. 
MRS. GLADSON TESTIFIED AT THIS TRIAL, RELATING THAT SHE WAS ASLEEP IN
HER BEDROOM WHEN ONE OF THE ROBBERS ENTERED, AWOKE HER, TIED HER UP
WITH A TELEPHONE CORD, AND TOOK CASH AND HER WEDDING RING.  THE ROBBER
STAYED IN HER ROOM FOR ABOUT 15 OR 20 MINUTES, DURING WHICH TIME SHE
COULD HEAR SCUFFLING AND TALKING IN THE BASEMENT.  SHE SAID THAT SHE
WAS ABLE TO IDENTIFY THE ROBBER BY HIS VOICE, AND THAT HE WAS JOHNSON,
NOT ASHE. 

THE COURT'S OPINION OMITS SOME RELEVANT FACTS.  THE OTHER VICTIMS'
TESTIMONY AT THE SECOND TRIAL CORROBORATED THAT OF MRS. GLADSON THAT
FOUR ROBBERS WERE PRESENT DURING THE TIME IN WHICH THE ROBBERY TOOK
PLACE.  GLADSON IDENTIFIED THREE ROBBERS-- BROWN, LARSON, AND ASHE-- AS
HAVING BEEN IN THE BASEMENT FOR THE FIRST MINUTES OF THE ROBBERY; ALSO
HE STATED THAT ONE OR MORE OF THE ROBBERS HAD LEFT THE BASEMENT AFTER
20 OR 25 MINUTES.  ROBERTS IDENTIFIED BROWN, LARSON, AND ASHE AS THE
MEN WHO FORMED THE ORIGINAL GROUP WHO ENTERED THE BASEMENT AND
TESTIFIED THAT AFTER THE ROBBERY, TWO OF THE THREE MEN, INCLUDING ASHE,
LEFT THE ROOM.  TWO MEN RETURNED IN A SHORT TIME WITH CAR KEYS, BUT
JOHNSON HAD REPLACED ASHE AS ONE OF THE TWO.  THERE CAN BE NO DOUBT
THAT THE RECORD SHOWS FOUR PERSONS IN THE ROBBERY BAND.  THE JURY FOUND
ASHE GUILTY OF ROBBING ROBERTS-- THE ONLY CHARGE BEFORE IT. 

THEREAFTER, AS DESCRIBED IN THE OPINION OF THE MAJORITY, ASHE'S
CONVICTION WAS REVIEWED AND UPHELD BY THE SUPREME COURT OF MISSOURI,
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI,
AND THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT; IN TURN EACH REJECTED
ASHE'S DOUBLE-JEOPARDY CLAIM. 

        II 

THE CONCEPT OF DOUBLE JEOPARDY AND OUR FIRM CONSTITUTIONAL
COMMITMENT IS AGAINST REPEATED TRIALS "FOR THE SAME OFFENCE."  THIS
COURT, LIKE MOST AMERICAN JURISDICTIONS, HAS EXPANDED THAT PART OF THE
CONSTITUTION INTO A "SAME EVIDENCE" TEST.  /1/  FOR EXAMPLE, IN
BLOCKBURGER V. UNITED STATES, 284 U.S. 299, 304 (1932), IT WAS STATED,
SO FAR AS HERE RELEVANT, THAT 

"THE TEST TO BE APPLIED TO DETERMINE WHETHER THERE ARE TWO OFFENSES
OR ONLY ONE, IS WHETHER EACH PROVISION (I.E., EACH CHARGE) REQUIRES
PROOF OF A FACT WHICH THE OTHER DOES NOT." 

CLEARLY AND BEYOND DISPUTE THE CHARGE AGAINST ASHE IN THE SECOND
TRIAL REQUIRED PROOF OF A FACT-- ROBBERY OF ROBERTS-- WHICH THE CHARGE
INVOLVING KNIGHT DID NOT.  THE COURT, THEREFORE, HAS HAD TO REACH OUT
FAR BEYOND THE ACCEPTED OFFENSE-DEFINING RULE TO REACH ITS DECISION IN
THIS CASE.  WHAT IT HAS DONE IS TO SUPERIMPOSE ON THE SAME-EVIDENCE
TEST A NEW AND NOVEL COLLATERAL-ESTOPPEL GLOSS. 

THE MAJORITY RESTS ITS HOLDING IN PART ON A SERIES OF CASES
BEGINNING WITH UNITED STATES V. OPPENHEIMER, 242 U.S. 85 (1916), WHICH
DID NOT INVOLVE CONSTITUTIONAL DOUBLE JEOPARDY BUT APPLIED COLLATERAL
ESTOPPEL AS DEVELOPED IN CIVIL LITIGATION TO FEDERAL CRIMINAL
PROSECUTIONS AS A MATTER OF THIS COURT'S SUPERVISORY POWER OVER THE
FEDERAL COURT SYSTEM.  THE COURT NOW FINDS THE FEDERAL COLLATERAL
ESTOPPEL RULE TO BE AN "INGREDIENT" OF THE FIFTH AMENDMENT GUARANTEE
AGAINST DOUBLE JEOPARDY AND APPLIES IT TO THE STATES THROUGH THE
FOURTEENTH AMENDMENT; THAT IS AN INGREDIENT THAT ELUDED JUDGES AND
JUSTICES FOR NEARLY TWO CENTURIES. 

THE COLLATERAL-ESTOPPEL CONCEPT-- ORIGINALLY A PRODUCT ONLY OF CIVIL
LITIGATION-- IS A STRANGE MUTANT AS IT IS TRANSFORMED TO CONTROL THIS
CRIMINAL CASE.  IN CIVIL CASES THE DOCTRINE WAS JUSTIFIED AS CONSERVING
JUDICIAL RESOURCES AS WELL AS THOSE OF THE PARTIES TO THE ACTIONS AND
ADDITIONALLY AS PROVIDING THE FINALITY NEEDED TO PLAN FOR THE FUTURE. 
IT ORDINARILY APPLIES TO PARTIES ON EACH SIDE OF THE LITIGATION WHO
HAVE THE SAME INTEREST AS OR WHO ARE IDENTICAL WITH THE PARTIES IN THE
INITIAL LITIGATION.  HERE THE COMPLAINANT IN THE SECOND TRIAL IS NOT
THE SAME AS IN THE FIRST EVEN THOUGH THE STATE IS A PARTY IN BOTH
CASES.  VERY PROPERLY, IN CRIMINAL CASES, FINALITY AND CONSERVATION OF
PRIVATE, PUBLIC, AND JUDICIAL RESOURCES ARE LESSER VALUES THAN IN CIVIL
LITIGATION.  ALSO, COURTS THAT HAVE APPLIED THE COLLATERAL-ESTOPPEL
CONCEPT TO CRIMINAL ACTIONS WOULD CERTAINLY NOT APPLY IT TO BOTH
PARTIES, AS IS TRUE IN CIVIL CASES, I.E., HERE, IF ASHE HAD BEEN
CONVICTED AT THE FIRST TRIAL, PRESUMABLY NO COURT WOULD THEN HOLD THAT
HE WAS THEREBY FORECLOSED FROM LITIGATING THE IDENTIFICATION ISSUE AT
THE SECOND TRIAL.  /2/ 

PERHAPS, THEN, IT COMES AS NO SURPRISE TO FIND THAT THE ONLY
EXPRESSED RATIONALE FOR THE MAJORITY'S DECISION IS THAT ASHE HAS "RUN
THE GANTLET" ONCE BEFORE.  THIS IS NOT A DOCTRINE OF THE LAW OR LEGAL
REASONING BUT A COLORFUL AND GRAPHIC PHRASE, WHICH, AS USED ORIGINALLY
IN AN OPINION OF THE COURT WRITTEN BY MR. JUSTICE BLACK, WAS INTENDED
TO MEAN SOMETHING ENTIRELY DIFFERENT.  THE FULL PHRASE IS "RUN THE
GANTLET ONCE ON THAT CHARGE . . . "; IT IS TO BE FOUND IN GREEN V.
UNITED STATES, 355 U.S. 184, 190 (1957), WHERE NO QUESTION OF MULTIPLE
CRIMES AGAINST MULTIPLE VICTIMS WAS INVOLVED.  GREEN, HAVING BEEN FOUND
GUILTY OF SECOND-DEGREE MURDER ON A CHARGE OF FIRST DEGREE, SECURED A
NEW TRIAL.  THIS COURT HELD NOTHING MORE THAN THAT GREEN, ONCE PUT IN
JEOPARDY-- ONCE HAVING "RUN THE GANTLET . . . ON THAT CHARGE"-- OF
FIRST DEGREE MURDER, COULD NOT BE COMPELLED TO DEFEND AGAINST THAT
CHARGE AGAIN ON RETRIAL.     TODAY'S STEP IN THIS AREA OF
CONSTITUTIONAL LAW OUGHT NOT BE TAKEN ON NO MORE BASIS THAN CASUAL
RELIANCE ON THE "GANTLET" PHRASE LIFTED OUT OF THE CONTEXT IN WHICH IT
WAS ORIGINALLY USED.  THIS IS DECISION BY SLOGAN. 

SOME COMMENTATORS HAVE CONCLUDED THAT THE HARASSMENT INHERENT IN
STANDING TRIAL A SECOND TIME IS A SUFFICIENT REASON FOR USE OF
COLLATERAL ESTOPPEL IN CRIMINAL TRIALS.  /3/  IF THE COURT IS TODAY
RELYING ON A HARASSMENT CONCEPT TO SUPERIMPOSE A NEW BRAND OF
COLLATERAL-ESTOPPEL GLOSS ON THE "SAME EVIDENCE" TEST, THERE IS A SHORT
ANSWER; THIS CASE DOES NOT REMOTELY SUGGEST HARASSMENT OF AN ACCUSED
WHO ROBBED SIX VICTIMS AND THE HARASSMENT ASPECT DOES NOT RISE TO
CONSTITUTIONAL LEVELS.  /4/ 

FINALLY, THE MAJORITY'S OPINION TELLS US 

"THAT THE RULE OF COLLATERAL ESTOPPEL IN CRIMINAL CASES IS NOT TO BE
APPLIED WITH THE HYPERTECHNICAL AND ARCHAIC APPROACH OF A 19TH CENTURY
PLEADING BOOK, BUT WITH REALISM AND RATIONALITY."  ANTE, AT 444.  WITH
DEFERENCE I AM BOUND TO POSE THE QUESTION:  WHAT IS REASONABLE AND
RATIONAL ABOUT HOLDING THAT AN ACQUITTAL OF ASHE FOR ROBBING KNIGHT
BARS A TRIAL FOR ROBBING ROBERTS?  TO BORROW A PHRASE FROM THE COURT'S
OPINION, WHAT COULD CONCEIVABLE BE MORE "HYPERTECHNICAL AND ARCHAIC"
AND MORE LIKE THE STILTED FORMALISMS OF 17TH AND 18TH CENTURY COMMON
LAW ENGLAND, THAN TO STRETCH JEOPARDY FOR ROBBING KNIGHT INTO JEOPARDY
FOR ROBBING ROBERTS? 

AFTER EXAMINING THE FACTS OF THIS CASE THE COURT CONCLUDES THAT THE
FIRST JURY MUST HAVE CONCLUDED THAT ASHE WAS NOT ONE OF THE ROBBERS--
THAT HE WAS NOT PRESENT AT THE TIME.  /5/  ALSO, SINCE THE SECOND JURY
NECESSARILY REACHED ITS DECISION BY FINDING HE WAS PRESENT, THE
COLLATERAL-ESTOPPEL DOCTRINE APPLIES.  BUT THE MAJORITY'S ANALYSIS OF
THE FACTS COMPLETELY DISREGARDS THE CONFUSION INJECTED INTO THE CASE BY
THE ROBBERY OF MRS. GLADSON.  TO ME, IF WE ARE TO PSYCHOANALYZE THE
JURY, THE EVIDENCE ADDUCED AT THE FIRST TRIAL COULD MORE REASONABLE BE
CONSTRUED AS INDICATING THAT ASHE HAD BEEN AT THE GLADSON HOME WITH THE
OTHER THREE MEN BUT WAS NOT ONE OF THOSE INVOLVED IN THE BASEMENT
ROBBERY.  CERTAINLY, THE EVIDENCE AT THE FIRST TRIAL WAS EQUIVOCAL AS
TO WHETHER THERE WERE THREE OR FOUR ROBBERS, WHETHER THE MAN WHO ROBBED
MRS. GLADSON WAS ONE OF THE THREE WHO ROBBED THE SIX MALE VICTIMS, AND
WHETHER A MAN OTHER THAN THE THREE HAD ROBBED MRS. GLADSON.  THEN,
SINCE THE JURY COULD HAVE THOUGHT THAT THE "ACTING TOGETHER"
INSTRUCTION GIVEN BY THE TRIAL COURT IN BOTH TRIALS /6/  ONLY APPLIED
TO THE ACTUAL TAKING FROM THE SIX CARD PLAYERS, AND NOT TO MRS.
GLADSON, THE JURY COULD WELL HAVE ACQUITTED ASHE BUT YET BELIEVED THAT
HE WAS PRESENT IN THE GLADSON HOME.  ON THE OTHER HAND, THE EVIDENCE
ADDUCED AT THE SECOND TRIAL RESOLVED ISSUES OTHER THAN IDENTITY THAT
MAY HAVE TROUBLED THE FIRST JURY.  IF BELIEVED, THAT EVIDENCE INDICATED
THAT A FOURTH ROBBER, JOHNSON, NOT ASHE, WAS WITH MRS. GLADSON WHEN
ASHE, LARSON, AND BROWN WERE ROBBING THE MALE VICTIMS.  JOHNSON DID GO
TO THE BASEMENT WHERE THE MALE VICTIMS WERE LOCATED, BUT ONLY AFTER THE
OTHER THREE HAD ALREADY TAKEN THE STOLEN ITEMS AND WHEN THE ROBBERS
WERE PREPARING FOR THEIR DEPARTURE IN A CAR TO BE STOLEN FROM ROBERTS. 

ACCORDINGLY, EVEN THE FACTS IN THIS CASE, WHICH THE COURT'S OPINION
CONSIDERS TO "LEAD TO BUT ONE CONCLUSION," ARE SUSCEPTIBLE OF AN
INTERPRETATION THAT THE FIRST JURY DID NOT BASE ITS ACQUITTAL ON THE
IDENTITY GROUND WHICH THE COURT FINDS SO COMPELLING.  THE COURT BASES
ITS HOLDING ON SHEER "GUESSWORK,"  /7/  WHICH SHOULD HAVE NO PLACE
PARTICULARLY IN OUR REVIEW OF STATE CONVICTIONS BY WAY OF HABEAS
CORPUS.  AS MR. JUSTICE HOLMES SAID IN GUY V. DONALD, 203 U.S. 399, 406
(1906): 

"AS LONG AS THE MATTER TO BE CONSIDERED IS DEBATED IN ARTIFICIAL
TERMS THERE IS DANGER OF BEING LED BY A TECHNICAL DEFINITION TO APPLY A
CERTAIN NAME, AND THEN TO DEDUCE CONSEQUENCES WHICH HAVE NO RELATION TO
THE GROUNDS ON WHICH THE NAME WAS APPLIED.  . . . "

        III 

THE ESSENCE OF MR. JUSTICE BRENNAN'S CONCURRENCE IS THAT THIS WAS
ALL ONE TRANSACTION, ONE EPISODE, OR, IF I MAY SO CHARACTERIZE IT, ONE
FROLIC, AND, HENCE, ONLY ONE CRIME.  HIS APPROACH, LIKE THAT TAKEN BY
THE COURT, TOTALLY OVERLOOKS THE SIGNIFICANCE OF THERE BEING SIX
ENTIRELY SEPARATE CHARGES OF ROBBERY AGAINST SIX INDIVIDUALS. 

THIS "SINGLE TRANSACTION" CONCEPT IS NOT A NOVEL NOTION; IT HAS BEEN
URGED IN VARIOUS COURTS INCLUDING THIS COURT.  /8/  ONE OF THE THESES
UNDERLYING THE "SINGLE TRANSACTION" NOTION IS THAT THE CRIMINAL EPISODE
IS "INDIVISIBLE."  THE SHORT ANSWER TO THAT IS THAT TO THE VICTIMS, THE
CRIMINAL CONDUCT IS READILY DIVISIBLE AND INTENSELY PERSONAL; EACH
OFFENSE IS AN OFFENSE AGAINST A PERSON.  FOR ME IT DEMEANS THE DIGNITY
OF THE HUMAN PERSONALITY AND INDIVIDUALITY TO TALK OF "A SINGLE
TRANSACTION" IN THE CONTEXT OF SIX SEPARATE ASSAULTS ON SIX
INDIVIDUALS. 

NO COURT THAT ELEVATES THE INDIVIDUAL RIGHTS AND HUMAN DIGNITY OF
THE ACCUSED TO A HIGH PLACE-- AS WE SHOULD-- OUGHT TO BE SO CASUAL AS
TO TREAT THE VICTIMS AS A SINGLE HOMOGENIZED LUMP OF HUMAN CLAY.  I
WOULD GRANT THE DIGNITY OF INDIVIDUAL STATUS TO THE VICTIMS AS MUCH AS
TO THOSE ACCUSED, NOT MORE BUT SURELY NO LESS. 

IF IT BE SUGGESTED THAT MULTIPLE CRIMES CAN BE SEPARATELY PUNISHED
BUT MUST BE COLLECTIVELY TRIED, ONE CAN POINT TO THE FIRM TREND IN THE
LAW TO ALLOW SEVERANCE OF DEFENDANTS AND OFFENSES INTO SEPARATE TRIALS
SO AS TO AVOID POSSIBLE PREJUDICE OF ONE CRIMINAL ACT OR OF THE CONDUCT
OF ONE DEFENDANT TO "SPILL OVER" ON ANOTHER. 

WHAT THE COURT HOLDS TODAY MUST BE RELATED TO ITS IMPACT ON CRIMES
MORE SERIOUS THAN ORDINARY HOUSE-BREAKING, FOLLOWED BY PHYSICAL ASSAULT
ON SIX MEN AND ROBBERY OF ALL OF THEM.  TO UNDERSTAND ITS FULL IMPACT
WE MUST VIEW THE HOLDING IN THE CONTEXT OF FOUR MEN WHO BREAK AND
ENTER, ROB, AND THEN KILL SIX VICTIMS.  THE CONCURRENCE TELLS US THAT
UNLESS ALL THE CRIMES ARE JOINED IN ONE TRIAL THE ALLEGED KILLERS
CANNOT BE TRIED FOR MORE THAN ONE OF THE KILLINGS EVEN IF THE EVIDENCE
IS THAT THEY PERSONALLY KILLED TWO, THREE, OR MORE OF THE VICTIMS.  OR
ALTER THE CRIME TO FOUR MEN BREAKING INTO A COLLEGE DORMITORY AND
ASSAULTING SIX GIRLS.  WHAT THE COURT IS HOLDING IS IN EFFECT, THAT THE
SECOND AND THIRD AND FOURTH CRIMINAL ACTS ARE "FREE," UNLESS THE
ACCUSED IS TRIED FOR THE MULTIPLE CRIMES IN A SINGLE TRIAL-- SOMETHING
DEFENDANTS FRANTICALLY USE EVERY LEGAL DEVICE TO AVOID, AND OFTEN
SUCCEED IN AVOIDING.  THIS IS THE REALITY OF WHAT THE COURT HOLDS
TODAY; IT DOES NOT MAKE GOOD SENSE AND IT CANNOT MAKE GOOD LAW. 

I THEREFORE JOIN WITH THE FOUR COURTS THAT HAVE FOUND NO DOUBLE
JEOPARDY IN THIS CASE. 

TO BORROW SOME WISE WORDS FROM MR. JUSTICE BLACK IN HIS SEPARATE
OPINION IN JACKSON V. DENNO, 378 U.S. 368, 401, 407-408 (2964), THE
CONVICTION STRUCK DOWN IN THIS CASE "IS IN FULL ACCORD WITH ALL THE
GUARANTEES OF THE FEDERAL CONSTITUTION AND . . . SHOULD NOT BE HELD
INVALID BY THIS COURT BECAUSE OF A BELIEF THAT THE COURT CAN IMPROVE ON
THE CONSTITUTION." 

/1/  THE TEST WAS FIRST ENUNCIATED IN THE KING V. VANDERCOMB, 2
LEACH 708, 720, 168 ENG.REP.  455, 461 (CROWN 1796). 

/2/  IF KNIGHT AND ROBERTS HAD BEEN PASSENGERS IN A CAR THAT
COLLIDED WITH ONE DRIVEN BY ASHE NO ONE WOULD SERIOUSLY SUGGEST THAT A
JURY VERDICT FOR ASHE IN AN ACTION BY KNIGHT AGAINST ASHE WOULD BAR AN
ACTION BY ROBERTS AGAINST ASHE.  TO PRESENT THIS SITUATION SHOWS HOW
FAR THE COURT HERE HAS DISTORTED COLLATERAL ESTOPPEL BEYOND ITS
TRADITIONAL BOUNDARIES. 

/3/  SEE, E.G., MAYERS & YARBROUGH, BIS VEXARI:  NEW TRIALS AND
SUCCESSIVE PROSECUTIONS, 74 HARV.L.REV.  1, 29-41 (1960); COMMENT, 24
MO.L.REV.  513 (1959); CF. NOTE, 75 YALE L.J. 262, 283-292 (1965). 

/4/  THE WEIGHT OF THE HARASSMENT FACTOR DOES NOT WARRANT ELEVATING
COLLATERAL-ESTOPPEL PRINCIPLES IN CRIMINAL TRIALS TO THE LEVEL OF AN
"INGREDIENT" OF THE FIFTH AND FOURTEENTH AMENDMENTS.  TRUE HARASSMENT
DESERVES SERIOUS CONSIDERATION BECAUSE OF THE STRAIN OF THE NEW TRIAL. 
BUT SOCIETY HAS AN URGENT INTEREST IN PROTECTING THE PUBLIC FROM
CRIMINAL ACTS AND WE OUGHT NOT ENDORSE ANY CONCEPTS THAT PUT A PREMIUM
ON AGGRAVATED CRIMINAL CONDUCT IN MULTIPLE CRIMES COMMITTED AT THE SAME
TIME. 

/5/  ARGUABLY IF ASHE HAD MADE A DEFENSE SOLELY BY ALIBI, THAT HE
WAS IN VIETNAM AT THE TIME AND OFFERED EVIDENCE OF ARMY RECORDS ETC.,
ONE MIGHT REASONABLY SAY THE JURY DECIDED WHAT THE COURT TODAY SAYS IT
PROBABLY DECIDED.  ON THIS RECORD HOWEVER, SUCH AN ANALYSIS IS
BASELESS. 

/6/  SEE ANTE, AT 439 N. 3. 

/7/  FOR A CRITICISM OF THE COLLATERAL-ESTOPPEL DOCTRINE BECAUSE OF
THE "GUESSWORK" NECESSARY TO APPLY IT TO GENERAL CRIMINAL VERDICTS, SEE
NOTE, 75 YALE L.J. 262, 285 (1965). 

/8/  HOAG V. NEW JERSEY, 356 U.S. 464, 473 (WARREN, C. J.,
DISSENTING), 477 (DOUGLAS, J., DISSENTING) (1958). 

CLARK M. CLIFFORD, BY APPOINTMENT OF THE COURT, 394 U.S.941, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE JAMES T. STOVALL
III AND ROBERT G. DUNCAN. 

GENE E. VOIGTS, FIRST ASSISTANT ATTORNEY GENERAL OF MISSOURI, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS JOHN C. DANFORTH,
ATTORNEY GENERAL. 
..END :









DANDRIDGE V. WILLIAMS, 397 U.S. 471 


       DANDRIDGE, CHAIRMAN, MARYLAND BOARD OF PUBLIC WELFARE, ET AL

           V. WILLIAMS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MARYLAND

        NO. 131.  ARGUED DECEMBER 9, 1969-- DECIDED APRIL 6, 1970 


APPELLEES, LARGE-FAMILY RECIPIENTS OF BENEFITS UNDER THE AID TO
FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM, BROUGHT THIS SUIT TO
ENJOIN THE APPLICATION OF MARYLAND'S MAXIMUM GRANT REGULATION AS
CONTRAVENING THE SOCIAL SECURITY ACT OF 1935 AND THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  UNDER THE PROBRAM, WHICH IS
JOINTLY FINANCED BY THE FEDERAL AND STATE GOVERNMENTS, A STATE COMPUTES
THE "STANDARD OF NEED" OF ELIGIBLE FAMILY UNITS.  UNDER THE MARYLAND
REGULATION, THOUGH MOST FAMILIES ARE PROVIDED AID IN ACCORDANCE WITH
THE STANDARD OF NEED, A CEILING OF ABOUT $250 PER MONTH IS IMPOSED ON
AN AFDC GRANT REGARDLESS OF THE SIZE OF THE FAMILY AND ITS ACTUAL
NEED.  THE DISTRICT COURT HELD THE REGULATION "INVALID ON ITS FACE FOR
OVERREACHING" AND THUS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE. 
HELD: 

1.  THE MARYLAND REGULATION IS NOT PROHIBITED BY THE SOCIAL SECURITY
ACT.  PP. 476-483. 

(A) A STATE HAS GREAT LATITUDE IN DISPENSING ITS AVAILABLE FUNDS,
KING V. SMITH, 392 U.S. 309, 318-319, AND GIVEN MARYLAND'S FINITE
RESOURCES AVAILABLE FOR PUBLIC WELFARE DEMANDS, IT IS NOT PREVENTED BY
THE ACT FROM SUSTAINING AS MANY FAMILIES AS IT CAN AND PROVIDING THE
LARGEST FAMILIES WITH SOMEWHAT LESS THAN THEIR ASCERTAINED PER CAPITA
STANDARD OF NEED.  PP. 478-480. 

(B) THE STATUTORY STANDARD IN SEC. 402(A)(10) OF THE ACT THAT AID
"SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE
INDIVIDUALS," IS NOT VIOLATED BY THE REGULATION, WHICH DOES NOT DEPRIVE
CHILDREN OF THE LARGEST FAMILIES OF AID BUT REDUCES THE FAMILY GRANT AS
A WHOLE, AND THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE HAS
APPROVED THE MARYLAND SCHEME.  PP. 480-482. 

(C) IN ITS SOCIAL SECURITY AMENDMENTS OF 1967, CONGRESS FULLY
RECOGNIZED THAT MAXIMUM GRANT REGULATIONS ARE PERMISSIBLE.  PP. 482
483. 

2.  THE REGULATION DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE. 
PP. 483-487. 

(A) THE CONCEPT OF OVERBREADTH, THOUGH RELEVANT WHERE FIRST
AMENDMENT CONSIDERATIONS ARE INVOLVED, IS NOT PERTINENT TO STATE
REGULATION IN THE SOCIAL AND ECONOMIC FIELD.  PP. 484-485. 

(B) THE REGULATION IS RATIONALLY SUPPORTABLE AND FREE FROM INVIDIOUS
DISCRIMINATION SINCE IT FURTHERS THE STATE'S LEGITIMATE INTEREST IN
ENCOURAGING EMPLOYMENT AND IN MAINTAINING AN EQUITABLE BALANCE BETWEEN
WELFARE FAMILIES AND THE FAMILIES OF THE WORKING POOR.  PP. 486-487. 

297 F.SUPP.  450, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE VALIDITY OF A METHOD USED BY MARYLAND, IN THE
ADMINISTRATION OF AN ASPECT OF ITS PUBLIC WELFARE PROGRAM, TO RECONCILE
THE DEMANDS OF ITS NEEDY CITIZENS WITH THE FINITE RESOURCES AVAILABLE
TO MEET THOSE DEMANDS.  LIKE EVERY OTHER STATE IN THE UNION, MARYLAND
PARTICIPATES IN THE FEDERAL AID TO FAMILIES WITH DEPENDENT CHILDREN
(AFDC) PROGRAM, 42 U.S.C. 601 ET SEQ. (1964 ED. AND SUPP. IV), WHICH
ORIGINATED WITH THE SOCIAL SECURITY ACT OF 1935.  /1/  UNDER THIS
JOINTLY FINANCED PROGRAM, A STATE COMPUTES THE SO-CALLED "STANDARD OF
NEED" OF EACH ELIGIBLE FAMILY UNIT WITHIN ITS BORDERS.  SEE GENERALLY
ROSADO V. WYMAN, ANTE, P. 397.  SOME STATES PROVIDE THAT EVERY FAMILY
SHALL RECEIVE GRANTS SUFFICIENT TO MEET FULLY THE DETERMINED STANDARD
OF NEED.  OTHER STATES PROVIDE THAT EACH FAMILY UNIT SHALL RECEIVE A
PERCENTAGE OF THE DETERMINED NEED.  STILL OTHERS PROVIDE GRANTS TO MOST
FAMILIES IN FULL ACCORD WITH THE ASCERTAINED STANDARD OF NEED, BUT
IMPOSE AN UPPER LIMIT ON THE TOTAL AMOUNT OF MONEY ANY ONE FAMILY UNIT
MAY RECEIVE.  MARYLAND, THROUGH ADMINISTRATIVE ADOPTION OF A "MAXIMUM
GRANT REGULATION," HAS FOLLOWED THIS LAST COURSE.  THIS SUIT WAS
BROUGHT BY SEVERAL AFDC RECIPIENTS TO ENJOIN THE APPLICATION OF THE
MARYLAND MAXIMUM GRANT REGULATION ON THE GROUND THAT IT IS IN CONFLICT
WITH THE SOCIAL SECURITY ACT OF 1935 AND WITH THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  A THREE-JUDGE DISTRICT COURT
CONVENED PURSUANT TO 28 U.S.C. 2281, HELD THAT THE MARYLAND REGULATION
VIOLATES THE EQUAL PROTECTION CLAUSE.  297 F.SUPP.  450.  THIS DIRECT
APPEAL FOLLOWED, 28 U.S.C. 1253, AND WE NOTED PROBABLE JURISDICTION,
396 U.S. 811. 

THE OPERATION OF THE MARYLAND WELFARE SYSTEM IS NOT COMPLEX.  BY
STATUTE /2/  THE STATE PARTICIPATES IN THE AFDC PROGRAM.  IT COMPUTES
THE STANDARD OF NEED FOR EACH ELIBIBLE FAMILY BASED ON THE NUMBER OF
CHILDREN IN THE FAMILY AND THE CIRCUMSTANCES UNDER WHICH THE FAMILY
LIVES.  IN GENERAL, THE STANDARD OF NEED INCREASES WITH EACH ADDITIONAL
PERSON IN THE HOUSEHOLD, BUT THE INCREMENTS BECOME PROPORTIONATELY
SMALLER.  /3/  THE REGULATION HERE IN ISSUE IMPOSES UPON THE GRANT THAT
ANY SINGLE FAMILY MAY RECEIVE AN UPPER LIMIT OF $250 PER MONTH IN
CERTAIN COUNTIES AND BALTIMORE CITY, AND OF $240 PER MONTH ELSEWHERE IN
THE STATE.  /4/  THE APPELLEES ALL HAVE LARGE FAMILIES, SO THAT THEIR
STANDARDS OF NEED AS COMPUTED BY THE STATE SUBSTANTIALLY EXCEED THE
MAXIMUM GRANTS THAT THEY ACTUALLY RECEIVE UNDER THE REGULATION.  THE
APPELLEES URGED IN THE DISTRICT COURT THAT THE MAXIMUM GRANT LIMITATION
OPERATES TO DISCRIMINATE AGAINST THEM MERELY BECAUSE OF THE SIZE OF
THEIR FAMILIES, IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  THEY CLAIMED FURTHER THAT THE REGULATION IS
INCOMPATIBLE WITH THE PURPOSE OF THE SOCIAL SECURITY ACT OF 1935, AS
WELL AS IN CONFLICT WITH ITS EXPLICIT PROVISIONS. 

IN ITS ORIGINAL OPINION THE DISTRICT COURT HELD THAT THE MARYLAND
REGULATION DOES CONFLICT WITH THE FEDERAL STATUTE, AND ALSO CONCLUDED
THAT IT VIOLATES THE FOURTEENTH AMENDMENT'S EQUAL PROTECTION
GUARANTEE.  AFTER RECONSIDERATION ON MOTION, THE COURT ISSUED A NEW
OPINION RESTING ITS DETERMINATION OF THE REGULATION'S INVALIDITY
ENTIRELY ON THE CONSTITUTIONAL GROUND.  /5/  BOTH THE STATUTORY AND
CONSTITUTIONAL ISSUES HAVE BEEN FULLY BRIEFED AND ARGUED HERE, AND THE
JUDGMENT OF THE DISTRICT COURT MUST, OF COURSE, BE AFFIRMED IF THE
MARYLAND REGULATION IS IN CONFLICT WITH EITHER THE FEDERAL STATUTE OR
THE CONSTITUTION.  /6/  WE CONSIDER THE STATUTORY QUESTION FIRST,
BECAUSE IF THE APPELLEES' POSITION ON THIS QUESTION IS CORRECT, THERE
IS NO OCCASION TO REACH THE CONSTITUTIONAL ISSUES.  ASHWANDER V. TVA,
297 U.S. 288, 346-347 (BRANDEIS, J., CONCURRING); ROSENBERG V. FLEUTI,
374 U.S. 449. 

        I 

THE APPELLEES CONTEND THAT THE MAXIMUM GRANT SYSTEM IS CONTRARY TO
SEC. 402(A)(10) OF THE SOCIAL SECURITY ACT, AS AMENDED, /7/  WHICH
REQUIRES THAT A STATE PLAN SHALL 

"PROVIDE . . . THAT ALL INDIVIDUALS WISHING TO MAKE APPLICATION FOR
AID TO FAMILIES WITH DEPENDENT CHILDREN SHALL HAVE OPPORTUNITY TO DO
SO, AND THAT AID TO FAMILIES WITH DEPENDENT CHILDREN SHALL BE FURNISHED
WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS."  THE ARGUMENT
IS THAT THE STATE REGULATION DENIES BENEFITS TO THE YOUNGER CHILDREN IN
A LARGE FAMILY.  THUS, THE APPELLEES SAY, THE REGULATION IS IN PATENT
VIOLATION OF THE ACT, SINCE THOSE YOUNGER CHILDREN ARE JUST AS
"DEPENDENT" AS THEIR OLDER SIBLINGS UNDER THE DEFINITION OF "DEPENDENT
CHILD" FIXED BY FEDERAL LAW.  /8/  SEE KING V. SMITH, 392 U.S. 309. 
MOREOVER, IT IS ARGUED THAT THE REGULATION, IN LIMITING THE AMOUNT OF
MONEY ANY SINGLE HOUSEHOLD MAY RECEIVE, CONTRAVENES A BASIC PURPOSE OF
THE FEDERAL LAW BY ENCOURAGING THE PARENTS OF LARGE FAMILIES TO "FARM
OUT" THEIR CHILDREN TO RELATIVES WHOSE GRANTS ARE NOT YET SUBJECT TO
THE MAXIMUM LIMITATION. 

IT CANNOT BE GAINSAID THAT THE EFFECT OF THE MARYLAND MAXIMUM GRANT
PROVISION IS TO REDUCE THE PER CAPITA BENEFITS TO THE CHILDREN IN THE
LARGEST FAMILIES.  ALTHOUGH THE APPELLEES ARGUE THAT THE YOUNGER AND
MORE RECENTLY ARRIVED CHILDREN IN SUCH FAMILIES ARE TOTALLY DEPRIVED OF
AID, A MORE REALISTIC VIEW IS THAT THE LOT OF THE ENTIRE FAMILY IS
DIMINISHED BECAUSE OF THE PRESENCE OF ADDITIONAL CHILDREN WITHOUT ANY
INCREASE IN PAYMENTS.  CF. KING V. SMITH, SUPRA, AT 335 N. 4 (DOUGLAS,
J., CONCURRING).  IT IS NO MORE ACCURATE TO SAY THAT THE LAST CHILD'S
GRANT IS WHOLLY TAKEN AWAY THAN TO SAY THAT THE GRANT OF THE FIRST
CHILD IS TOTALLY RESCINDED.  IN FACT, IT IS THE FAMILY GRANT THAT IS
AFFECTED.  WHETHER THIS PER CAPITA DIMINUTION IS COMPATIBLE WITH THE
STATUTE IS THE QUESTION HERE.  FOR THE REASONS THAT FOLLOW, WE HAVE
CONCLUDED THAT THE MARYLAND REGULATION IS PERMISSIBLE UNDER THE FEDERAL
LAW. 

IN KING V. SMITH, SUPRA, WE STRESSED THE STATES'"UNDISPUTED POWER,"
UNDER THESE PROVISIONS OF THE SOCIAL SECURITY ACT, "TO SET THE LEVEL OF
BENEFITS AND THE STANDARD OF NEED."  ID., AT 334.  WE DESCRIBED THE
AFDC ENTERPRISE AS "A SCHEME OF COOPERATIVE FEDERALISM," ID., AT 316,
AND NOTED CAREFULLY THAT "(THERE IS NO QUESTION THAT STATES HAVE
CONSIDERABLE LATITUDE IN ALLOCATING THEIR AFDC RESOURCES, SINCE EACH
STATE IS FREE TO SET ITS OWN STANDARD OF NEED AND TO DETERMINE THE
LEVEL OF BENEFITS BY THE AMOUNT OF FUNDS IT DEVOTES TO THE PROGRAM." 
ID., AT 318-319. 

CONGRESS WAS ITSELF COGNIZANT OF THE LIMITATIONS ON STATE RESOURCES
FROM THE VERY OUTSET OF THE FEDERAL WELFARE PROGRAM.  THE FIRST SECTION
OF THE ACT, 42 U.S.C. 601 (1964 ED., SUPP. IV), PROVIDES THAT THE ACT
IS 

     "FOR THE PURPOSE OF ENCOURAGING THE CARE OF DEPENDENT CHILDREN

  IN THEIR OWN HOMES OR IN THE HOMES OF RELATIVES BY ENABLING EACH

  STATE TO FURNISH FINANCIAL ASSISTANCE AND REHABILITATION AND

  OTHER SERVICES, AS FAR AS PRACTICABLE UNDER THE CONDITIONS IN

  SUCH STATE, TO NEEDY DEPENDENT CHILDREN AND THE PARENTS OR

  RELATIVES WITH WHOM THEY ARE LIVING TO HELP MAINTAIN AND

  STRENGTHEN FAMILY LIFE AND TO HELP SUCH PARENTS OR RELATIVES TO

  ATTAIN OR RETAIN CAPABILITY FOR THE MAXIMUM SELF-SUPPORT AND

 PERSONAL INDEPENDENCE CONSISTENT WITH THE MAINTENANCE OF

  CONTINUING PARENTAL CARE AND PROTECTION . . . . "

THUS THE STARTING POINT OF THE STATUTORY ANALYSIS MUST BE A RECOGNITION
THAT THE FEDERAL LAW GIVES EACH STATE GREAT LATITUDE IN DISPENSING ITS
AVAILABLE FUNDS. 

THE VERY TITLE OF THE PROGRAM, THE REPEATED REFERENCES TO FAMILIES
ADDED IN 1962, PUB. L. 87-543, SEC. 104(A)(3), 76 STAT. 185, AND THE
WORDS OF THE PREAMBLE QUOTED ABOVE, SHOW THAT CONGRESS WISHED TO HELP
CHILDREN THROUGH THE FAMILY STRUCTURE.  THE OPERATION OF THE STATUTE
ITSELF HAS THIS EFFECT.  FROM ITS INCEPTION THE ACT HAS DEFINED
"DEPENDENT CHILD" IN PART BY REFERENCE TO THE RELATIVES WITH WHOM THE
CHILD LIVES.  /9/  WHEN A "DEPENDENT CHILD"  IS LIVING WITH RELATIVES,
THEN "AID" ALSO INCLUDES PAYMENTS AND MEDICAL CARE TO THOSE RELATIVES,
INCLUDING THE SPOUSE OF THE CHILD'S PARENT.  42 U.S.C. 606(B) (1964
ED., SUPP. IV).  THUS, AS THE DISTRICT COURT NOTED, THE AMOUNT OF AID
"IS . . . COMPUTED BY TREATING THE RELATIVE, PARENT OR SPOUSE OF
PARENT, AS THE CASE MAY BE, OF THE 'DEPENDENT CHILD' AS A PART OF THE
FAMILY UNIT."  297 F.SUPP.,AT 455.  CONGRESS HAS BEEN SO DESIROUS OF
KEEPING DEPENDENT CHILDREN WITHIN A FAMILY THAT IN THE SOCIAL SECURITY
AMENDMENTS OF 1967 IT PROVIDED THAT AID COULD GO TO CHILDREN WHOSE NEED
AROSE MERELY FROM THEIR PARENTS' UNEMPLOYMENT, UNDER FEDERALLY
DETERMINED STANDARDS, ALTHOUGH THE PARENT WAS NOT INCAPACITATED.  42
U.S.C. 607 (1964 ED., SUPP. IV). 

THE STATES MUST RESPOND TO THIS FEDERAL STATUTORY CONCERN FOR
PRESERVING CHILDREN IN A FAMILY ENFIRONMENT.  GIVEN MARYLAND'S FINITE
RESOURCES, ITS CHOICE IS EITHER TO SUPPORT SOME FAMILIES ADEQUATELY AND
OTHERS LESS ADEQUATELY, OR NOT TO GIVE SUFFICIENT SUPPORT TO ANY
FAMILY.  WE SEE NOTHING IN THE FEDERAL STATUTE THAT FORBIDS A STATE TO
BALANCE THE STRESSES THAT UNIFORM INSUFFICIENCY OF PAYMENTS WOULD
IMPOSE ON ALL FAMILIES AGAINST THE GREATER ABILITY OF LARGE FAMILIES--
BECAUSE OF THE INHERENT ECONOMIES OF SCALE-- TO ACCOMMODATE THEIR NEEDS
TO DIMINISHED PER CAPITA PAYMENTS.  THE STRONG POLICY OF THE STATUTE IN
FAVOR OF PRESERVING FAMILY UNITS DOES NOT PREVENT A STATE FROM
SUSTAINING AS MANY FAMILIES AS IT CAN, AND PROVIDING THE LARGEST
FAMILIES SOMEWHAT LESS THAN THEIR ASCERTAINED PER CAPITA STANDARD OF
NEED.  /10/  NOR DOES THE MAXIMUM GRANT SYSTEM NECESSITATE THE
DISSOLUTION OF FAMILY BONDS.  FOR EVEN IF A PARENT SHOULD BE INCLINED
TO INCREASE HIS PER CAPITA FAMILY INCOME BY SENDING A CHILD AWAY, THE
FEDERAL LAW REQUIRES THAT THE CHILD, TO BE ELIGIBLE FOR AFDC PAYMENTS,
MUST LIVE WITH ONE OF SEVERAL ENUMERATED RELATIVES.  /11/  THE KINSHIP
TIE MAY BE ATTENUATED BUT IT CANNOT BE DESTROYED. 

THE APPELLEES RELY MOST HEAVILY UPON THE STATUTORY REQUIREMENT THAT
AID "SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE
INDIVIDUALS."  42 U.S.C. 602(A)(10) (1964 ED., SUPP. IV).  BUT SINCE
THE STATUTE LEAVES THE LEVEL OF BENEFITS WITHIN THE JUDGMENT OF THE
STATE, THIS LANGUAGE CANNOT MEAN THAT THE "AID" FURNISHED MUST EQUAL
THE TOTAL OF EACH INDIVIDUAL'S STANDARD OF NEED IN EVERY FAMILY GROUP. 
INDEED THE APPELLEES DO NOT DENY THAT A SCHEME OF PROPORTIONAL
REDUCTIONS FOR ALL FAMILIES COULD BE USED THAT WOULD RESULT IN NO
INDIVIDUAL'S RECEIVING AID EQUAL TO HIS STANDARD OF NEED.  AS WE HAVE
NOTED, THE PRACTICAL EFFECT OF THE MARYLAND REGULATION IS THAT ALL
CHILDREN, EVEN IN VERY LARGE FAMILIES, DO RECEIVE SOME AID.  WE FIND
NOTHING IN 42 U.S.C. 602(A)(10) (1964 ED., SUPP. IV) THAT REQUIRES MORE
THAN THIS.  /12/  SO LONG AS SOME AID IS PROVIDED TO ALL ELIGIBLE
FAMILIES AND ALL ELIGIBLE CHILDREN, THE STATUTE ITSELF IS NOT
VIOLATED. 

THIS IS THE VIEW THAT HAS BEEN TAKEN BY THE SECRETARY OF HEALTH,
EDUCATION, AND WELFARE (HEW), WHO IS CHARGED WITH THE ADMINISTRATION OF
THE SOCIAL SECURITY ACT AND THE APPROVAL OF STATE WELFARE PLANS.  THE
PARTIES HAVE STIPULATED THAT THE SECRETARY HAS, ON NUMEROUS OCCASIONS,
APPROVED THE MARYLAND WELFARE SCHEME, INCLUDING ITS PROVISION OF
MAXIMUM PAYMENTS TO ANY ONE FAMILY, A PROVISION THAT HAS BEEN IN FORCE
IN VARIOUS FORMS SINCE 1947.  MOREOVER, A MAJORITY OF THE STATES PAY
LESS THAN THEIR DETERMINED STANDARD OF NEED, AND 20 OF THESE STATES
IMPOSE MAXIMUMS ON FAMILY GRANTS OF THE KIND HERE IN ISSUE.  /13/  THE
SECRETARY HAS NOT DISAPPROVED ANY STATE PLAN BECAUSE OF ITS MAXIMUM
GRANT PROVISION.  ON THE CONTRARY, THE SECRETARY HAS EXPLICITLY
RECOGNIZED STATE MAXIMUM GRANT SYSTEMS.  /14/ 

FINALLY, CONGRESS ITSELF HAS ACKNOWLEDGED A FULL AWARENESS OF STATE
MAXIMUM GRANT LIMITATIONS.  IN THE AMENDMENTS OF 1967 CONGRESS ADDED TO
SEC. 402(A) A SUBSECTION, 23: 

"(THE STATE SHALL) PROVIDE THAT BY JULY 1, 1969, THE AMOUNTS USED BY
THE STATE TO DETERMINE THE NEEDS OF INDIVIDUALS WILL HAVE BEEN ADJUSTED
TO REFLECT FULLY CHANGES IN LIVING COSTS SINCE SUCH AMOUNTS WERE
ESTABLISHED, AND ANY MAXIMUMS THAT THE STATE IMPOSES ON THE AMOUNT OF
AID PAID TO FAMILIES WILL HAVE BEEN PROPORTIONATELY ADJUSTED."  81
STAT. 898, 42 U.S.C. 602(A)(23) (1964 ED., SUPP. IV).  THIS SPECIFIC
CONGRESSIONAL RECOGNITION OF THE STATE MAXIMUM GRANT PROVISIONS IS NOT,
OF COURSE, AN APPROVAL OF ANY SPECIFIC MAXIMUM.  THE STRUCTURE OF
SPECIFIC MAXIMUMS CONGRESS LEFT TO THE STATES, AND THE VALIDITY OF ANY
SUCH STRUCTURE MUST MEET CONSTITUTIONAL TESTS.  HOWEVER, THE ABOVE
AMENDMENT DOES MAKE CLEAR THAT CONGRESS FULLY RECOGNIZED THAT THE ACT
PERMITS MAXIMUM GRANT REGULATIONS.  /15/

FOR ALL OF THESE REASONS, WE CONCLUDE THAT THE MARYLAND REGULATION
IS NOT PROHIBITED BY THE SOCIAL SECURITY ACT. 

        II 

ALTHOUGH A STATE MAY ADOPT A MAXIMUM GRANT SYSTEM IN ALLOCATING ITS
FUNDS AVAILABLE FOR AFDC PAYMENTS WITHOUT VIOLATING THE ACT, IT MAY
NOT, OF COURSE, IMPOSE A REGIME OF INVIDIOUS DISCRIMINATION IN
VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
MARYLAND SAYS THAT ITS MAXIMUM GRANT REGULATION IS WHOLLY FREE OF ANY
INVIDIOUSLY DISCRIMINATORY PURPOSE OR EFFECT, AND THAT THE REGULATION
IS RATIONALLY SUPPORTABLE ON AT LEAST FOUR ENTIRELY VALID GROUNDS.  THE
REGULATION CAN BE CLEARLY JUSTIFIED, MARYLAND ARGUES, IN TERMS OF
LEGITIMATE STATE INTERESTS IN ENCOURAGING GAINFUL EMPLOYMENT, IN
MAINTAINING AN EQUITABLE BALANCE IN ECONOMIC STATUS AS BETWEEN WELFARE
FAMILIES AND THOSE SUPPORTED BY A WAGE-EARNER, IN PROVIDING INCENTIVES
FOR FAMILY PLANNING, AND IN ALLOCATING AVAILABLE PUBLIC FUNDS IN SUCH A
WAY AS FULLY TO MEET THE NEEDS OF THE LARGEST POSSIBLE NUMBER OF
FAMILIES.  THE DISTRICT COURT, WHILE APPARENTLY RECOGNIZING THE
VALIDITY OF AT LEAST SOME OF THESE STATE CONCERNS, NONETHELESS HELD
THAT THE REGULATION "IS INVALID ON ITS FACT FOR OVERREACHING," 297
F.SUPP.,AT 468-- THAT IT VIOLATES THE EQUAL PROTECTION CLAUSE "(BECAUSE
IT CUTS TOO BROAD A SWATH ON AN INDISCRIMINATE BASIS AS APPLIED TO THE
ENTIRE GROUP OF AFDC ELIGIBLES TO WHICH IT PURPORTS TO APPLY . . . . "
297 F.SUPP.,AT 469. 

IF THIS WERE A CASE INVOLVING GOVERNMENT ACTION CLAIMED TO VIOLATE
THE FIRST AMENDMENT GUARANTEE OF FREE SPEECH, A FINDING OF
"OVERREACHING" WOULD BE SIGNIFICANT AND MIGHT BE CRUCIAL.  FOR WHEN
OTHERWISE VALID GOVERNMENTAL REGULATION SWEEPS SO BROADLY AS TO IMPINGE
UPON ACTIVITY PROTECTED BY THE FIRST AMENDMENT, ITS VERY OVERBREADTH
MAY MAKE IT UNCONSTITUTIONAL.  SEE, E.G., SHELTON V. TUCKER, 364 U.S.
479.  BUT THE CONCEPT OF "OVERREACHING" HAS NO PLACE IN THIS CASE.  FOR
HERE WE DEAL WITH STATE REGULATION IN THE SOCIAL AND ECONOMIC FIELD,
NOT AFFECTING FREEDOMS GUARANTEED BY THE BILL OF RIGHTS, AND CLAIMED TO
VIOLATE THE FOURTEENTH AMENDMENT ONLY BECAUSE THE REGULATION RESULTS IN
SOME DISPARITY IN GRANTS OF WELFARE PAYMENTS TO THE LARGEST AFDC
FAMILIES.  /16/  FOR THIS COURT TO APPROVE THE INVALIDATION OF STATE
ECONOMIC OR SOCIAL REGULATION AS "OVERREACHING" WOULD BE FAR TOO
REMINISCENT OF AN ERA WHEN THE COURT THOUGHT THE FOURTEENTH AMENDMENT
GAVE IT POWER TO STRIKE DOWN STATE LAWS "BECAUSE THEY MAY BE UNWISE,
IMPROVIDENT, OR OUT OF HARMONY WITH A PARTICULAR SCHOOL OF THOUGHT." 
WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 488.  THAT ERA LONG AGO
PASSED INTO HISTORY.  FERGUSON V. SKRUPA, 372 U.S. 726. 

IN THE AREA OF ECONOMICS AND SOCIAL WELFARE, A STATE DOES NOT
VIOLATE THE EQUAL PROTECTION CLAUSE MERELY BECAUSE THE CLASSIFICATIONS
MADE BY ITS LAWS ARE IMPERFECT.  IF THE CLASSIFICATION HAS SOME
"REASONABLE BASIS," IT DOES NOT OFFEND THE CONSTITUTION SIMPLY BECAUSE
THE CLASSIFICATION "IS NOT MADE WITH MATHEMATICAL NICETY OR BECAUSE IN
PRACTICE IT RESULTS IN SOME INEQUALITY."  LINDSLEY V. NATURAL CARBONIC
GAS CO., 220 U.S. 61, 78.  "THE PROBLEMS OF GOVERNMENT ARE PRACTICAL
ONES AND MAY JUSTIFY, IF THEY DO NOT REQUIRE, ROUGH ACCOMMODATIONS--
ILLOGICAL, IT MAY BE, AND UNSCIENTIFIC."  METROPOLIS THEATRE CO. V.
CITY OF CHICAGO, 228 U.S. 61, 69-70.  "A STATUTORY DISCRIMINATION WILL
NOT BE SET ASIDE IF ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO
JUSTIFY IT."  MCGOWAN V. MARYLAND, 366 U.S. 420, 426. 

TO BE SURE, THE CASES CITED, AND MANY OTHERS ENUCIATING THIS
FUNDAMENTAL STANDARD UNDER THE EQUAL PROTECTION CLAUSE, HAVE IN THE
MAIN INVOLVED STATE REGULATION OF BUSINESS OR INDUSTRY.  THE
ADMINISTRATION OF PUBLIC WELFARE ASSISTANCE, BY CONTRAST, INVOLVES THE
MOST BASIC ECONOMIC NEEDS OF IMPOVERISHED HUMAN BEINGS.  WE RECOGNIZE
THE DRAMATICALLY REAL FACTUAL DIFFERENCE BETWEEN THE CITED CASES AND
THIS ONE, BUT WE CAN FIND NO BASIS FOR APPLYING A DIFFERENT
CONSTITUTIONAL STANDARD.  /17/  SEE SNELL V. WYMAN, 281 F.SUPP.  853,
AFF'D, 393 U.S. 323.  IT IS A STANDARD THAT HAS CONSISTENTLY BEEN
APPLIED TO STATE LEGISLATION RESTRICTING THE AVAILABILITY OF EMPLOYMENT
OPPORTUNITIES.  GOESAERT V. CLEARY, 335 U.S. 464; KOTCH V. BOARD OF
RIVER PORT PILOT COMM'RS, 330 U.S. 552.  SEE ALSO FLEMMING V. NESTOR,
363 U.S. 603.  AND IT IS A STANDARD THAT IS TRUE TO THE PRINCIPLE THAT
THE FOURTEENTH AMENDMENT GIVES THE FEDERAL COURTS NO POWER TO IMPOSE
UPON THE STATES THEIR VIEWS OF WHAT CONSTITUTES WISE ECONOMIC OR SOCIAL
POLICY.  /18/ 

UNDER THIS LONG-ESTABLISHED MEANING OF THE EQUAL PROTECTION CLAUSE,
IT IS CLEAR THAT THE MARYLAND MAXIMUM GRANT REGULATION IS
CONSTITUTIONALLY VALID.  WE NEED NOT EXPLORE ALL THE REASONS THAT THE
STATE ADVANCES IN JUSTIFICATION OF THE REGULATION.  IT IS ENOUGH THAT A
SOLID FOUNDATION FOR THE REGULATION CAN BE FOUND IN THE STATE'S
LEGITIMATE INTEREST IN ENCOURAGING EMPLOYMENT AND IN AVOIDING
DISCRIMINATION BETWEEN WELFARE FAMILIES AND THE FAMILIES OF THE WORKING
POOR.  BY COMBINING A LIMIT ON THE RECIPIENT'S GRANT WITH PERMISSION TO
RETAIN MONEY EARNED, WITHOUT REDUCTION IN THE AMOUNT OF THE GRANT,
MARYLAND PROVIDES AN INCENTIVE TO SEEK GAINFUL EMPLOYMENT.  AND BY
KEYING THE MAXIMUM FAMILY AFDC GRANTS TO THE MINIMUM WAGE A STEADILY
EMPLOYED HEAD OF A HOUSEHOLD RECEIVES, THE STATE MAINTAINS SOME
SEMBLANCE OF AN EQUITABLE BALANCE BETWEEN FAMILIES ON WELFARE AND THOSE
SUPPORTED BY AN EMPLOYED BREADWINNER.  /19/ 

IT IS TRUE THAT IN SOME AFDC FAMILIES THERE MAY BE NO PERSON WHO IS
EMPLOYABLE.  /20/  IT IS ALSO TRUE THAT WITH RESPECT OF AFDC FAMILIES
WHOSE DETERMINED STANDARD OF NEED IS BELOW THE REGULATORY MAXIMUM, AND
WHO THEREFORE RECEIVE GRANTS EQUAL TO THE DETERMINED STANDARD, THE
EMPLOYMENT INCENTIVE IS ABSENT.  BUT THE EQUAL PROTECTION CLAUSE DOES
NOT REQUIRE THAT A STATE MUST CHOOSE BETWEEN ATTACKING EVERY ASPECT OF
A PROBLEM OR NOT ATTACKING THE PROBLEM AT ALL.  LINDSLEY V. NATURAL
CARBONIC GAS CO., 220 U.S. 61.  IT IS ENOUGH THAT THE STATE'S ACTION BE
RATIONALLY BASED AND FREE FROM INVIDIOUS DISCRIMINATION.  THE
REGULATION BEFORE US MEETS THAT TEST. 

WE DO NOT DECIDE TODAY THAT THE MARYLAND REGULATION IS WISE, THAT IT
BEST FULFILLS THE RELEVANT SOCIAL AND ECONOMIC OBJECTIVES THAT MARYLAND
MIGHT IDEALLY ESPOUSE, OR THAT A MORE JUST AND HUMANE SYSTEM COULD NOT
BE DEVISED.  CONFLICTING CLAIMS OF MORALITY AND INTELLIGENCE ARE RAISED
BY OPPONENTS AND PROPONENTS OF ALMOST EVERY MEASURE, CERTAINLY
INCLUDING THE ONE BEFORE US.  BUT THE INTRACTABLE ECONOMIC, SOCIAL, AND
EVEN PHILOSOPHICAL PROBLEMS PRESENTED BY PUBLIC WELFARE ASSISTANCE
PROGRAMS ARE NOT THE BUSINESS OF THIS COURT.  THE CONSTITUTION MAY
IMPOSE CERTAIN PROCEDURAL SAFEGUARDS UPON SYSTEMS OF WELFARE
ADMINISTRATION, GOLDBERG V. KELLY, ANTE, P. 254.  BUT THE CONSTITUTION
DOES NOT EMPOWER THIS COURT TO SECOND-GUESS STATE OFFICIALS CHARGED
WITH THE DIFFICULT RESPONSIBILITY OF ALLOCATING LIMITED PUBLIC WELFARE
FUNDS AMONG THE MYRIAD OF POTENTIAL RECIPIENTS.  CF. STEWARD MACH. CO.
V. DAVIS, 301 U.S. 548, 584-585; HELVERING V. DAVIS, 301 U.S. 619,
644. 

              THE JUDGMENT IS REVERSED. 

/1/  49 STAT. 620, AS AMENDED, 42 U.S.C. 301-1394 (1964 ED. AND
SUPP. IV). 

/2/  MARYLAND ANN. CODE, ART. 88A, SEC. 44A ET SEQ. (1969 REPL. 
VOL.). 

/3/  THE SCHEDULE FOR DETERMINING SUBSISTENCE NEEDS IS SET FORTH IN
AN APPENDIX TO THIS OPINION. 

/4/ THE REGULATION NOW PROVIDES: 

"B.  AMOUNT-- THE AMOUNT OF THE GRANT IS THE RESULTING AMOUNT OF
NEED WHEN RESOURCES ARE DEDUCTED FROM REQUIREMENTS AS SET FORTH IN THIS
RULE, SUBJECT TO A MAXIMUM ON EACH GRANT FROM EACH CATEGORY: 

"1.  $250-- FOR LOCAL DEPARTMENTS UNDER 'PLAN A' OF SHELTER
SCHEDULE 

"2.  $240-- FOR LOCAL DEPARTMENTS UNDER ANY 'PLAN B' OF SHELTER
SCHEDULE 

"EXCEPT THAT: 

"A.  IF THE REQUIREMENTS OF A CHILD OVER 18 ARE INCLUDED TO ENABLE
HIM TO COMPLETE HIGH SCHOOL OR TRAINING FOR EMPLOYMENT (III-C-3), THE
GRANT MAY EXCEED THE MAXIMUM BY THE AMOUNT OF SUCH CHILD'S NEEDS. 

"B.  IF THE RESOURCE OF SUPPORT IS PAID AS A REFUND (VI-B-6), THE
GRANT MAY EXCEED THE MAXIMUM BY AN AMOUNT OF SUCH REFUND.  THIS MAKES
CONSISTENT THE PRINCIPLE THAT THE AMOUNT FROM PUBLIC ASSISTANCE FUNDS
DOES NOT EXCEED THE MAXIMUM. 

"C.  THE MAXIMUM MAY BE EXCEEDED BY THE AMOUNT OF AN EMERGENCY GRANT
FOR ITEMS NOT INCLUDED IN A REGULAR MONTHLY GRANT.  (VIII) 

"D.  THE MAXIMUM MAY BE EXCEEDED UP TO THE AMOUNT OF A GRANT TO A
PERSON IN ONE OF THE NURSING HOMES SPECIFIED IN SCHEDULE D, SECTION A. 

"3.  A GRANT IS SUBJECT TO ANY LIMITATION ESTABLISHED BECAUSE OF
INSUFFICIENT FUNDS."  MD. MANUAL OF DEPT. OF SOCIAL SERVICES, RULE 200,
SEC. X, B, P. 23, FORMERLY MD. MANUAL OF DEPT. OF PUB. WELFARE, PT. II,
RULE 200, SEC. VII, 1, P. 20. 

IN ADDITION, AFDC RECIPIENTS IN MARYLAND MAY BE ELIGIBLE FOR CERTAIN
ASSISTANCE IN KIND, INCLUDING FOOD STAMPS, PUBLIC HOUSING, AND MEDICAL
AID.  SEE, E.G., 42 U.S.C. 1396 ET SEQ. (1964 ED., SUPP. IV); 7 U.S.C.
1695-1697.  THE APPLICABLE PROVISIONS OF STATE AND FEDERAL LAW ALSO
PERMIT RECIPIENTS TO KEEP PART OF THEIR EARNINGS FROM OUTSIDE JOBS.  42
U.S.C. 630-644 (1964 ED., SUPP. IV); MD. MANUAL OF DEPT. OF SOCIAL
SERVICES, RULE 200, SEC. VI, B(8)(C)(2).  BOTH FEDERAL AND STATE LAW
REQUIRE THAT RECIPIENTS SEEK WORK AND TAKE IT IF IT IS AVAILABLE.  42
U.S.C. 602(A)(19)(F) (1964 ED., SUPP. IV); MD. MANUAL OF DEPT. OF
SOCIAL SERVICES, RULE 200, SEC. IIID)(1)(D). 

/5/  BOTH OPINIONS APPEAR AT 297 F.SUPP.  450. 

/6/  THE PREVAILING PARTY MAY, OF COURSE, ASSERT IN A REVIEWING
COURT ANY GROUND IN SUPPORT OF HIS JUDGMENT, WHETHER OR NOT THAT GROUND
WAS RELIED UPON OR EVEN CONSIDERED BY THE TRIAL COURT.  COMPARE LANGNES
V. GREEN, 282 U.S. 531, 538, WITH STORY PARCHMENT CO. V. PATERSON
PARCHMENT PAPER CO., 282 U.S. 555, 567-568.  AS THE COURT SAID IN
UNITED STATES V. AMERICAN RY. EXP.  CO., 265 U.S. 425, 435-436:  "(IT
IS LIKEWISE SETTLED THAT THE APPELLEE MAY, WITHOUT TAKING A CROSS
APPEAL, URGE IN SUPPORT OF A DECREE ANY MATTER APPEARING IN THE RECORD,
ALTHOUGH HIS ARGUMENT MAY INVOLVE AN ATTACK UPON THE REASONING OF THE
LOWER COURT OR AN INSISTENCE UPON MATTER OVERLOOKED OR IGNORED BY IT.
BY THE CLAIMS NOW IN QUESTION, THE AMERICAN DOES NOT ATTACK, IN ANY
RESPECT, THE DECREE ENTERED BELOW.  IT MERELY ASSERTS ADDITIONAL
GROUNDS WHY THE DECREE SHOULD BE AFFIRMED."  WHEN ATTENTION HAS BEEN
FOCUSED ON OTHER ISSUES, OR WHEN THE COURT FROM WHICH A CASE COMES HAS
EXPRESSED NO VIEWS ON A CONTROLLING QUESTION, IT MAY BE APPROPRIATE TO
REMAND THE CASE RATHER THAN DEAL WITH THE MERITS OF THAT QUESTION IN
THIS COURT.  SEE AETNA CAS. & SUR.  CO. V. FLOWERS, 330 U.S. 464, 468;
UNITED STATES V. BALLARD, 322 U.S. 78, 88.  THAT IS NOT THE SITUATION
HERE, HOWEVER.  THE ISSUE HAVING BEEN FULLY ARGUED BOTH HERE AND IN THE
DISTRICT COURT, CONSIDERATION OF THE STATUTORY CLAIM IS APPROPRIATE. 
BONDHOLDERS COMMITTEE V. COMMISSIONER, 315 U.S. 189, 192 N. 2; H. HART
& H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1394 (1953). 
SEE ALSO JAFFKE V. DUNHAM, 352 U.S. 280. 

/7/  64 STAT. 550, AS AMENDED, 76 STAT. 185, 81 STAT. 881, 42 U.S.C.
602(A)(10) (1964 ED., SUPP. V). 

/8/  42 U.S.C. 606(A) (1964 ED., SUPP. IV) PROVIDES: "THE TERM
'DEPENDENT CHILD' MEANS A NEEDY CHILD (1) WHO HAS BEEN DEPRIVED OF
PARENTAL SUPPORT OR CARE BY REASON OF THE DEATH, CONTINUED ABSENCE FROM
THE HOME, OR PHYSICAL OR MENTAL INCAPACITY OF A PARENT, AND WHO IS
LIVING WITH HIS FATHER, MOTHER, GRANDFATHER, GRANDMOTHER, BROTHER,
SISTER, STEPFATHER, STEPMOTHER, STEPBROTHER, STEPSISTER, UNCLE, AUNT,
FIRST COUSIN, NEPHEW, OR NIECE, IN A PLACE OF RESIDENCE MAINTAINED BY
ONE OR MORE OF SUCH RELATIVES AS HIS OR THEIR OWN HOME, AND (2) WHO IS
(A) UNDER THE AGE OF EIGHTEEN, OR (B) UNDER THE AGE OF TWENTY-ONE AND
(AS DETERMINED BY THE STATE IN ACCORDANCE WITH STANDARDS PRESCRIBED BY
THE SECRETARY) A STUDENT REGULARLY ATTENDING A SCHOOL, COLLEGE, OR
UNIVERSITY, OR REGULARLY ATTENDING A COURSE OF VOCATIONAL OR TECHNICAL
TRAINING DESIGNED TO FIT HIM FOR GAINFUL EMPLOYMENT."  THE ACT ALSO
COVERS CHILDREN WHO HAVE BEEN PLACED IN FOSTER HOMES PURSUANT TO
JUDICIAL ORDER OR BECAUSE THEY ARE STATE CHARGES.  42 U.S.C. 608 (1964
ED., SUPP. IV). 

/9/  42 U.S.C. 606(A) (1964 ED., SUPP. IV), SUPRA, N. 8, FORMERLY
SEC. 406, 49 STAT. 629, AS AMENDED, SEC. 321, 70 STAT. 850.  SEE ALSO
S. REP. NO. 628, 74TH CONG., 1ST SESS., 16-17 (1935). 

/10/  THE MARYLAND DEPT. OF SOCIAL SERVICES, MONTHLY FINANCIAL AND
STATISTICAL REPORT, TABLE 7 (NOV. 1969), INDICATES THAT 32,504 FAMILIES
RECEIVE AFDC ASSISTANCE.  IN THE MARYLAND DEPT. OF SOCIAL SERVICES,
1970 FISCAL YEAR BUDGET, THE DEPARTMENT ESTIMATED THAT 2,537 FAMILIES
WOULD BE AFFECTED BY THE REMOVAL OF THE MAXIMUM GRANT LIMITATION.  IT
THUS APPEARS THAT ONLY ONE-THIRTEENTH OF THE AFDC FAMILIES IN MARYLAND
RECEIVE LESS THAN THEIR DETERMINED NEED BECAUSE OF THE OPERATION OF THE
MAXIMUM GRANT REGULATION.  OF COURSE, IF THE SAME FUNDS WERE ALLOCATED
SUBJECT TO A PERCENTAGE LIMITATION, NO AFDC FAMILY WOULD RECEIVE FUNDS
SUFFICIENT TO MEET ITS DETERMINED NEED. 

/11/  42 U.S.C. 606(A) (1964 ED., SUPP. IV), N. 8, SUPRA. 

/12/  THE STATE ARGUES THAT IN THE TOTAL CONTEXT OF THE FEDERAL
STATUTE, REFERENCE TO "ELIGIBLE INDIVIDUALS" MEANS ELIGIBLE APPLICANTS
FOR AFDC GRANTS, RATHER THAN ALL THE FAMILY MEMBERS WHOM THE APPLICANTS
MAY REPRESENT, AND THAT THE STATUTORY PROVISION WAS DESIGNED ONLY TO
PREVENT THE USE OF WAITING LISTS.  THERE IS CONSIDERABLE SUPPORT IN THE
LEGISLATIVE HISTORY FOR THIS VIEW.  SEE H.R. REP. NO. 1300, 81ST CONG.,
1ST SESS., 48, 148 (1949); 95 CONG.REC.  13934 (1949) (REMARKS OF REP.
FORAND).  AND IT IS CERTAINLY TRUE THAT THE STATUTE CONTEMPLATES THAT
ACTUAL PAYMENTS WILL BE MADE TO RESPONSIBLE ADULTS.  SEE, E.G., 42
U.S.C. 605.  FOR THE REASONS GIVEN ABOVE, HOWEVER, WE DO NOT FIND IT
NECESSARY TO CONSIDER THIS ARGUMENT. 

/13/  SEE HEW REPORT ON MONEY PAYMENTS TO RECIPIENTS OF SPECIAL
TYPES OF PUBLIC ASSISTANCE, OCT. 1967, TABLE 4 (NCSS REPORT D-4).  SEE
ALSO HEARINGS ON H.R. 5710 BEFORE THE HOUSE COMMITTEE ON WAYS AND
MEANS, 90TH CONG., 1ST SESS., PT. 1, P. 118 (1967). 

/14/  HEW, STATE MAXIMUMS AND OTHER METHODS OF LIMITING MONEY
PAYMENTS TO RECIPIENTS OF SPECIAL TYPES OF PUBLIC ASSISTANCE, OCT.
1962, P. 3: 

"WHEN STATES ARE UNABLE TO MEET NEED AS DETERMINED UNDER THEIR
STANDARDS THEY REDUCE PAYMENTS ON A PERCENTAGE OR FLAT REDUCTION BASIS
. . . . THESE TYPES OF LIMITATIONS MAY BE USED IN THE ABSENCE OF, OR IN
CONJUNCTION WITH, LEGAL OR ADMINISTRATIVE MAXIMUMS.  A MAXIMUM LIMITS
THE AMOUNT OF ASSISTANCE THAT MAY BE PAID TO PERSONS WHOSE DETERMINED
NEED EXCEEDS THAT MAXIMUM, WHEREAS PERCENTAGE OR FLAT REDUCTIONS
USUALLY HAVE THE EFFECT OF LOWERING PAYMENTS TO MOST OR ALL RECIPIENTS
TO A LEVEL BELOW THAT OF DETERMINED NEED."  SEE ALSO HEW INTERIM POLICY
STATEMENT OF MAY 31, 1968, 33 FED.REG.  10230 (1968); 45 CFR
233.20(A)(2)(II), 34 FED.REG.  1394 (1969).     /15/  THE PROVISIONS OF
42 U.S.C. 1396BF) (1964 ED., SUPP. IV), ALSO ADDED BY THE AMENDMENTS OF
1967, 81 STAT. 898, ARE CONSISTENT WITH THIS VIEW.  THAT SECTION
PROVIDES THAT NO MEDICAL ASSISTANCE SHALL BE GIVEN TO ANY FAMILY THAT
HAS A CERTAIN LEVEL OF INCOME.  THE SECTION, HOWEVER, MAKES AN
EXCEPTION, 42 U.S.C. 1396BF)(1)(B)(II) (1964 ED., SUPP. IV): "IF THE
SECRETARY FINDS THAT THE OPERATION OF A UNIFORM MAXIMUM LIMITS PAYMENTS
TO FAMILIES OF MORE THAN ONE SIZE, HE MAY ADJUST THE AMOUNT OTHERWISE
DETERMINED UNDER CLAUSE (I) TO TAKE ACCOUNT OF FAMILIES OF DIFFERENT
SIZES." 

THESE PROVISIONS HAVE PARTICULAR SIGNIFICANCE IN LIGHT OF THE
ADMINISTRATION'S INITIAL EFFORT TO SECURE A LAW FORCING EACH STATE TO
PAY ITS FULL STANDARD OF NEED.  SEE ROSADO V. WYMAN, SUPRA. 

THIS RECOGNITION OF THE EXISTENCE OF STATE MAXIMUMS IS NOT NEW WITH
THE AMENDMENTS OF 1967.  IN REPORTING ON AMENDMENTS TO THE SOCIAL
SECURITY ACT IN 1962, 76 STAT. 185, THE SENATE COMMITTEE REFERRED TO
"STATES IN WHICH THERE IS A MAXIMUM LIMITING THE AMOUNT OF ASSISTANCE
AN INDIVIDUAL MAY RECEIVE."  S. REP. NO. 1589, 87TH CONG., 2D SESS., 14
(1962). 

/16/  CF. SHAPIRO V. THOMPSON, 394 U.S. 618, WHERE, BY CONTRAST, THE
COURT FOUND STATE INTERFERENCE WITH THE CONSTITUTIONALLY PROTECTED
FREEDOM OF INTERSTATE TRAVEL. 

/17/  IT IS IMPORTANT TO NOTE THAT THERE IS NO CONTENTION THAT THE
MARYLAND REGULATION IS INFECTED WITH A RACIALLY DISCRIMINATORY PURPOSE
OR EFFECT SUCH AS TO MAKE IT INHERENTLY SUSPECT.  CF. MCLAUGHLIN V.
FLORIDA, 379 U.S. 184. 

/18/  SEE DEVELOPMENTS IN THE LAW-- EQUAL PROTECTION, 82
HARV.L.REV.  1065, 1082-1087. 

/19/  THE PRESENT FEDERAL MINIMUM WAGE IS $52-$64 PER 40-HOUR WEEK,
29 U.S.C. 206 (1964 ED., SUPP. IV).  THE MARYLAND MINIMUM WAGE IS $46
$52 PER WEEK, MD. ANN. CODE, ART. 100, SEC. 83 (SUPP. 1969). 

/20/  IT APPEARS THAT NO FAMILY MEMBERS OF ANY OF THE NAMED
PLAINTIFFS IN THE PRESENT CASE ARE EMPLOYABLE. 

        APPENDIX TO OPINION OF THE COURT 

THE FOLLOWING WAS THE SCHEDULE FOR DETERMINING SUBSISTENCE NEEDS,
EXCLUSIVE OF RENT, AT THE TIME THIS ACTION WAS BROUGHT.  MD. MANUAL OF
DEPT. OF PUB. WELFARE, PT. II, RULE 200, SCHED.  A, P. 27:

      STANDARD FOR DETERMINING COST OF SUBSISTENCE NEEDS (SCHEDULE
OMITTED) OTHER SCHEDULES SET THE ESTIMATED COST OF SHELTER IN THE
VARIOUS COUNTIES IN MARYLAND.  SEE ID., SCHED.  B-- PLAN A, P. 29;
SCHED.  B-- PLAN B, P. 30.  THE PRESENT SCHEDULES, WHICH ARE
SUBSTANTIALLY THE SAME, APPEAR IN THE MD. MANUAL OF DEPT. OF SOCIAL
SERVICES, RULE 200, PP. 33, 35. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

ASSUMING, AS THE COURT APPARENTLY DOES, THAT INDIVIDUAL WELFARE
RECIPIENTS CAN BRING AN ACTION AGAINST STATE WELFARE AUTHORITIES
CHALLENGING AN ASPECT OF THE STATE'S WELFARE PLAN AS INCONSISTENT WITH
THE PROVISIONS OF THE SOCIAL SECURITY ACT, 42 U.S.C. 601-610 (1964 ED.
AND SUPP. IV), EVEN THOUGH THE SECRETARY OF HEALTH, EDUCATION, AND
WELFARE HAS DETERMINED AS HE HAS HERE THAT THE FEDERAL AND STATE
PROVISIONS ARE CONSISTENT, CF. ROSADO V. WYMAN, ANTE, P. 430 (BLACK,
J., DISSENTING), I JOIN IN THE OPINION OF THE COURT IN THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION, WITH ONE RESERVATION WHICH I DEEM CALLED
FOR BY CERTAIN IMPLICATIONS THAT MIGHT BE DRAWN FROM THE OPINION. 

AS I STATED IN DISSENT IN SHAPIRO V. THOMPSON, 394 U.S. 618, 658-663
(1969), I FIND NO SOLID BASIS FOR THE DOCTRINE THERE EXPOUNDED THAT
CERTAIN STATUTORY CLASSIFICATIONS WILL BE HELD TO DENY EQUAL PROTECTION
UNLESS JUSTIFIED BY A "COMPELLING" GOVERNMENTAL INTEREST, WHILE OTHERS
WILL PASS MUSTER IF THEY MEET TRADITIONAL EQUAL PROTECTION STANDARDS. 
SEE ALSO MY DISSENTING OPINION IN KATZENBACH V. MORGAN, 384 U.S. 641,
660-661 (1966).  EXCEPT WITH RESPECT TO RACIAL CLASSIFICATIONS, TO
WHICH UNIQUE HISTORICAL CONSIDERATIONS APPLY, SEE SHAPIRO, AT 659, I
BELIEVE THE CONSTITUTIONAL PROVISIONS ASSURING EQUAL PROTECTION OF THE
LAWS IMPOSE A STANDARD OF RATIONALITY OF CLASSIFICATION, LONG APPLIED
IN THE DECISIONS OF THIS COURT, THAT DOES NOT DEPEND UPON THE NATURE OF
THE CLASSIFICATION OR INTEREST INVOLVED. 

IT IS ON THIS BASIS, AND NOT BECAUSE THIS CASE INVOLVES ONLY
INTERESTS IN "THE AREA OF ECONOMIES AND SOCIAL WELFARE," ANTE, AT 485,
THAT I JOIN THE COURT'S CONSITUTIONAL HOLDING. 

MR. JUSTICE DOUGLAS, DISSENTING. 

APPELLEES, RECIPIENTS OF BENEFITS UNDER THE AID TO FAMILIES WITH
DEPENDENT CHILDREN (AFDC) PROGRAM, BROUGHT THIS SUIT UNDER 42 U.S.C.
1983 TO HAVE DECLARED INVALID AND PERMANENTLY ENJOINED THE ENFORCEMENT
OF THE MARYLAND MAXIMUM GRANT REGULATION, WHICH PLACES A CEILING ON THE
AMOUNT OF BENEFITS PAYABLE TO A FAMILY UNDER AFDC.  THEY ALLEGED THAT
THE REGULATION WAS INCONSISTENT WITH THE SOCIAL SECURITY ACT AND THAT
IT DENIED EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  I DO NOT FIND IT NECESSARY TO REACH THE CONSTITUTIONAL
ARGUMENT IN THIS CASE, FOR IN MY VIEW THE MARYLAND REGULATION IS
INCONSISTENT WITH THE TERMS AND PURPOSES OF THE SOCIAL SECURITY ACT. 

THE MARYLAND REGULATION UNDER ATTACK, RULE 200, SEC. X, B, OF THE
MARYLAND DEPARTMENT OF SOCIAL SERVICES, PLACES AN ABSOLUTE LIMIT OF
$250 PER MONTH ON THE AMOUNT OF A GRANT UNDER AFDC, REGARDLESS OF THE
SIZE OF THE FAMILY AND ITS ACTUAL NEED.  /1/  THE EFFECT OF THIS
REGULATION IS TO DENY BENEFITS TO ADDITIONAL CHILDREN BORN INTO A
FAMILY OF SIX, THUS MAKING IT IMPOSSIBLE FOR FAMILIES OF SEVEN PERSONS
OR MORE TO RECEIVE AN AMOUNT COMMENSURATE WITH THEIR ACTUAL NEED IN
ACCORDANCE WITH STANDARDS FORMULATED BY THE MARYLAND DEPARTMENT OF
SOCIAL SERVICES, WHEREAS FAMILIES OF SIX OR LESS CAN RECEIVE THE FULL
AMOUNT OF THEIR NEED AS SO DETERMINED.  APPELLEE WILLIAMS, ACCORDING TO
THE COMPUTED NEED FOR HERSELF AND HER EIGHT CHILDREN, SHOULD RECEIVE
$296.15 PER MONTH.  APPELLEES GARY SHOULD RECEIVE $331.50 FOR
THEMSELVES AND THEIR EIGHT CHILDREN.  INSTEAD, THESE APPELLEES RECEIVED
THE $250 MAXIMUM GRANT. 

IN KING V. SMITH, 392 U.S. 309, 318-319, THIS COURT STATED:  "THERE
IS NO QUESTION THAT STATES HAVE CONSIDERABLE LATITUDE IN ALLOCATING
THEIR AFDC RESOURCES, SINCE EACH STATE IS FREE TO SET ITS OWN STANDARD
OF NEED AND TO DETERMINE THE LEVEL OF BENEFITS BY THE AMOUNT OF FUNDS
IT DEVOTES TO THE PROGRAM."  THAT DICTUM, MADE IN THE CONTEST OF A CASE
THAT DEALT WITH ALABAMA'S "SUBSTITUTE FATHER" REGULATION, DOES LITTLE
TO CLARIFY THE LIMITS OF STATE AUTHORITY.  THE HOLDING IN KING WAS THAT
THE ALABAMA REGULATION, WHICH DENIED AFDC BENEFITS TO THE CHILDREN OF A
MOTHER WHO "COHABITED" IN OR OUTSIDE OF HER HOME WITH AN ABLE-BODIED
MAN, WAS INVALID BECAUSE IT DEFINED "PARENT" IN A MANNER INCONSISTENT
WITH SEC. 406(A) OF THE SOCIAL SECURITY ACT, 42 U.S.C. 606(A) (1964
ED., SUPP. IV).  THE COURT REJECTED THE STATE'S CONTENTION THAT ITS
REGULATION WAS "A LEGITIMATE WAY OF ALLOCATING ITS LIMITED RESOURCES
AVAILABLE FOR AFDC ASSISTANCE."  392 U.S.,AT 318.  THUS, WHATEVER ELSE
MAY BE SAID OF THE "LATITUDE" EXTENDED TO STATES IN DETERMINING THE
BENEFITS PAYABLE UNDER AFDC, THE HOLDING IN KING MAKES CLEAR THAT IT
DOES NOT INCLUDE RESTRICTIONS ON THE PAYMENT OF BENEFITS THAT ARE
INCOMPATIBLE WITH THE SOCIAL SECURITY ACT. 

THE METHODS BY WHICH A STATE CAN LIMIT AFDC PAYMENTS BELOW THE LEVEL
OF NEED ARE NUMEROUS.  THE METHOD USED IN KING WAS TO DENY TOTALLY
BENEFITS TO A SPECIFICALLY DEFINED CLASS OF OTHERWISE ELIGIBLE
RECIPIENTS.  ANOTHER METHOD, WHICH WAS DISAPPROVED BY CONGRESS IN SEC.
402(A)(10) OF THE SOCIAL SECURITY ACT, 42 U.S.C. 602(A)(10) (1964 ED.,
SUPP. IV), WAS TO REFUSE TO TAKE ADDITIONAL APPLICATIONS PENDING A
DECREASE IN THE NUMBER OF RECIPIENTS ON THE ASSISTANCE ROLLS OR AN
INCREASE IN AVAILABLE FUNDS.  THE TWO METHODS MOST COMMONLY EMPLOYED BY
THE STATES AT PRESENT, HOWEVER, ARE PERCENTAGE REDUCTIONS AND GRANT
MAXIMUMS.  SEE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW),
STATE MAXIMUMS AND OTHER METHODS OF LIMITING MONEY PAYMENTS TO
RECIPIENTS OF THE SPECIAL TYPES OF PUBLIC ASSISTANCE, OCT. 1968, TABLES
2, 3 (NCSS REPORT D-3).  GRANT MAXIMUMS, IN WHICH PAYMENTS ARE MADE
ACCORDING TO NEED BUT SUBJECT TO A STATED DOLLAR MAXIMUM, ARE OF TWO
TYPES:  INDIVIDUAL MAXIMUMS AND FAMILY MAXIMUMS.  ONLY THE LATTER TYPE
IS AT ISSUE IN THE PRESENT CASE.  PERCENTAGE REDUCTIONS INVOLVE
PAYMENTS OF A FIXED PERCENTAGE OF ACTUAL NEED AS DETERMINED BY THE
STATE'S NEED STANDARD. 

THE AUTHORITY GIVEN THE STATES TO SET THE LEVEL OF BENEFITS PAYABLE
UNDER THEIR AFDC PLANS STEMS FROM SEC. 401 OF THE SOCIAL SECURITY ACT,
42 U.S.C. 601 (1964 ED., SUPP. IV), WHICH STATES THE PURPOSE OF THE
FEDERAL AFDC APPROPRIATIONS AS "ENABLING EACH STATE TO FURNISH
FINANCIAL ASSISTANCE AND REHABILITATION AND OTHER SERVICES, AS FAR AS
PRACTICABLE UNDER THE CONDITIONS IN SUCH STATE . . . . "  IT IS
SIGNIFICANT IN THIS RESPECT THAT THE COURT IN KING REFERRED ONLY TO A
STATE'S DETERMINATION OF THE LEVEL OF BENEFITS "BY THE AMOUNT OF FUNDS
IT DEVOTES TO THE (AFDC) PROGRAM."  392 U.S.,AT 318-319.  THE LANGUAGE
OF SEC. 401 AND THE LANGUAGE OF THE COURT IN KING BOTH REFLECT A
CONCERN THAT THE FEDERAL GOVERNMENT NOT REQUIRE A STATE LEGISLATURE TO
APPROPRIATE MORE MONEY FOR WELFARE PURPOSES THAN IT IS WILLING AND ABLE
TO APPROPRIATE.  THE USE OF THE MATCHING FORMULA IN SEC. 403 OF THE
ACT, 42 U.S.C. 603 (1964 ED., SUPP. IV), SUPPORTS THIS DEFERENCE TO THE
FISCAL DECISIONS OF STATE LEGISLATURES.  THE QUESTION OF A STATE'S
AUTHORITY TO PAY LESS THAN ITS STANDARD OF NEED, HOWEVER, HAS NEVER
BEEN EXPRESSLY DECIDED. 

ASSUMING, ARGUENDO, THAT A STATE NEED NOT APPROPRIATE SUFFICIENT
FUNDS TO PAY ALL ELIGIBLE AFDC RECIPIENTS THE FULL AMOUNT OF THEIR
NEED, IT DOES NOT FOLLOW THAT IT CAN DISTRIBUTE SUCH FUNDS AS IT DEEMS
APPROPRIATE IN A MANNER INCONSISTENT WITH THE SOCIAL SECURITY ACT.  THE
QUESTION INVOLVED HERE IS NOT ONE OF ENDS; IT IS ONE OF MEANS.  THUS
THE UNITED STATES GOVERNMENT, IN ITS MEMORANDUM AS AMICUS CURIAE IN
ROSADO V. WYMAN, DECIDED THIS DAY, ANTE, P. 397, STATED, AT 6-7: 

     "MAXIMUMS, WHETHER SO MANY DOLLARS PER INDIVIDUAL OR A TOTAL

  NUMBER OF DOLLARS PER FAMILY, HAVE AN ARBITRARY ASPECT LACKING

  FROM RATABLE REDUCTIONS, SINCE THEIR APPLICATION MEANS THAT ONE

  FAMILY OR INDIVIDUAL WILL RECEIVE A SMALLER PROPORTION OF THE

  AMOUNTS HE IS DETERMINED TO NEED UNDER THE STATE'S TEST THAN

  ANOTHER FAMILY OR INDIVIDUAL.  WHERE PERCENTAGE REDUCTIONS ARE

  USED, THE PAYMENT OF EVERY FAMILY IS REDUCED PROPORTIONATELY . .

  . . (THIS ASPECT EXPLAINS WHY CONGRESS MIGHT WISH TO DISTINGUISH

  BETWEEN MAXIMUMS AND RATABLE REDUCTIONS AS A MEANS OF REDUCING A

  STATE'S FINANCIAL OBLIGATION AND, AT LEAST INFERENTIALLY, TO

  DISFAVOR THE FORMER." 

THE DISTRICT COURT, IN ITS INITIAL RULING THAT THE MARYLAND
REGULATION WAS INCONSISTENT WITH THE SOCIAL SECURITY ACT, RELIED
PRIMARILY ON SEC. 402(A)(10) OF THE ACT, WHICH PROVIDES THAT "ALL
INDIVIDUALS WISHING TO MAKE APPLICATION FOR AID TO FAMILIES WITH
DEPENDENT CHILDREN SHALL HAVE OPPORTUNITY TO DO SO, AND THAT AID TO
(FAMILIES WITH) DEPENDENT CHILDREN SHALL BE FURNISHED WITH REASONABLE
PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS."  42 U.S.C. 602(A)(10) (1964
ED., SUPP. IV).  THIS PROVISION WAS ADDED BY THE SOCIAL SECURITY ACT
AMENDMENTS OF 1950, 64 STAT. 549.  THE HOUSE COMMITTEE ON WAYS AND
MEANS, WHERE THE PROVISION ORIGINATED, EXPLAINED ITS PURPOSE AS
FOLLOWS: 

     "SHORTAGE OF FUNDS IN AID TO DEPENDENT CHILDREN HAS SOMETIMES,

  AS IN OLD-AGE ASSISTANCE, RESULTED IN A DECISION NOT TO TAKE MORE

APPLICATIONS OR TO KEEP ELIGIBLE FAMILIES ON WAITING LISTS UNTIL

  ENOUGH RECIPIENTS COULD BE REMOVED FROM THE ASSISTANCE ROLLS TO

  MAKE A PLACE FOR THEM.  . . . (THIS DIFFERENCE IN TREATMENT

  ACCORDED TO ELIBIBLE PEOPLE RESULTS IN UNDUE HARDSHIP ON NEEDY

  PERSONS AND IS INAPPROPRIATE IN A PROGRAM FINANCED FROM FEDERAL

  FUNDS."  H.R. REP. NO. 1300, 81ST CONG., 1ST SESS., 48 (1949). 

IN THE COURT BELOW, THE APPELLANTS RELIED UPON THIS LEGISLATIVE
HISTORY TO ARGUE THAT THE "ELIGIBLE INDIVIDUALS" TO WHOM AID MUST BE
FURNISHED ARE THE APPLICANTS FOR AID REFERRED TO IN THE BEGINNING OF
THE PROVISION, AND NOT THE INDIVIDUAL MEMBERS OF A FAMILY UNIT.  I FIND
NOTHING IN THE ACT OR IN THE LEGISLATIVE HISTORY OF SEC. 402(A)(10)
WHICH SUPPORTS THAT ARGUMENT. 

THE PURPOSE OF THE AFDC PROGRAM, AS STATED IN THE ACT, IS TO
ENCOURAGE "THE CARE OF DEPENDENT CHILDREN IN THEIR OWN HOMES OR IN THE
HOMES OF RELATIVES BY ENABLING EACH STATE TO FURNISH FINANCIAL
ASSISTANCE AND REHABILITATION AND OTHER SERVICES, AS FAR AS PRACTICABLE
UNDER THE CONDITIONS IN SUCH STATE, TO NEEDY DEPENDENT CHILDREN AND THE
PARENTS OR RELATIVES WITH WHOM THEY ARE LIVING TO HELP MAINTAIN AND
STRENGTHEN FAMILY LIFE . . . . "  SOCIAL SECURITY ACT SEC. 401, 42
U.S.C. 601 (1964 ED., SUPP. IV).  THE TERMS "DEPENDENT CHILD" AND
"RELATIVE WITH WHOM ANY DEPENDENT CHILD IS LIVING" ARE DEFINED IN SEC.
406 OF THE ACT, 42 U.S.C. 606 (1964 ED., SUPP. IV). 

THE AID PROVIDED THROUGH THE AFDC PROGRAM HAS ALWAYS BEEN INTENDED
FOR THE INDIVIDUAL DEPENDENT CHILDREN, NOT FOR THOSE WHO APPLY FOR THE
AID ON THEIR BEHALF.  THE SENATE COMMITTEE ON FINANCE, IN ITS REPORT ON
THE SOCIAL SECURITY BILL OF 1935, STATED THIS PURPOSE IN THE FOLLOWING
TERMS" 

"THE HEART OF ANY PROGRAM FOR SOCIAL SECURITY MUST BE THE

CHILD.  ALL PARTS OF THE SOCIAL SECURITY ACT ARE IN A VERY REAL

  SENSE MEASURES FOR THE SECURITY OF CHILDREN.  . . . 

      "IN ADDITION, HOWEVER, THERE IS GREAT NEED FOR SPECIAL

  SAFEGUARDS FOR MANY UNDERPRIVILEGED CHILDREN.  CHILDREN ARE IN

  MANY RESPECTS THE WORST VICTIMS OF THE DEPRESSION.  . . . 

     "MANY OF THE CHILDREN INCLUDED IN RELIEF FAMILIES PRESENT NO

  OTHER PROBLEM THAN THAT OF PROVIDING WORK FOR THE BREADWINNER OF

  THE FAMILY.  THESE CHILDREN WILL BE BENEFITED THROUGH THE WORK

  RELIEF PROGRAM AND STILL MORE THROUGH THE REVIVAL OF PRIVATE

  INDUSTRY.  BUT THERE ARE LARGE NUMBERS OF CHILDREN IN RELIEF

  FAMILIES WHICH WILL NOT BE BENEFITED THROUGH WORK PROGRAMS OR THE

  REVIVAL OF INDUSTRY. 

     "THESE ARE THE CHILDREN IN FAMILIES WHICH HAVE BEEN DEPRIVED
OF

  A FATHER'S SUPPORT AND IN WHICH THERE IS NO OTHER ADULT THAN ONE

  WHO IS NEEDED FOR THE CARE OF THE CHILDREN.  . . . 

     "WITH NO INCOME COMING IN, AND WITH YOUNG CHILDREN FOR WHOM

  PROVISION MUST BE MADE FOR A NUMBER OF YEARS, FAMILIES WITHOUT A

  FATHER'S SUPPORT REQUIRE PUBLIC ASSISTANCE, UNLESS THEY HAVE BEEN

  LEFT WITH ADEQUATE MEANS OR ARE AIDED BY FRIENDS AND RELATIVES. 
.

  . . THROUGH CASH GRANTS ADJUSTED TO THE NEEDS OF THE FAMILY IT IS

  POSSIBLE TO KEEP THE YOUNG CHILDREN WITH THEIR MOTHER IN THEIR

  OWN HOME, THUS PREVENTING THE NECESSITY OF PLACING THE CHILDREN

  IN INSTITUTIONS.  THIS IS RECOGNIZED BY EVERYONE TO BE THE LEAST

  EXPENSIVE AND ALTOGETHER THE MOST DESIRABLE METHOD FOR MEETING

  THE NEEDS OF THESE FAMILIES THAT HAS YET BEEN DEVISED."  S. REP.

  NO. 628, 74TH CONG., 1ST SESS., 16-17 (1935). 

PRIOR TO 1950, NO SPECIFIC PROVISION WAS MADE FOR THE NEED OF THE
PARENT OR OTHER RELATIVE WITH WHOM THE DEPENDENT CHILD WAS LIVING. 
ALTHOUGH THIS UNDERSCORES THE FACT THAT THE PAYMENTS WERE INTENDED TO
BENEFIT THE CHILDREN AND NOT THE APPLICANTS WHO RECEIVED THOSE
PAYMENTS, THE EXCLUSION FROM THE FEDERAL SCHEME OF PROVISION FOR THE
NEED OF THE CARING RELATIVE OPERATED EFFECTIVELY TO DILUTE THE ABILITY
OF THE AFDC PAYMENTS TO MEET THE NEED OF THE CHILD.  TO CORRECT THIS
LATTER DEFICIENCY, THE 1950 AMENDMENTS ALLOWED PROVISION FOR THE NEEDS
OF THIS CARING RELATIVE.  THE REPORT OF THE HOUSE COMMITTEE ON WAYS AND
MEANS STATED: 

"PARTICULARLY IN FAMILIES WITH SMALL CHILDREN, IT IS NECESSARY FOR
THE MOTHER OR ANOTHER ADULT TO BE IN THE HOME FULL TIME TO PROVIDE
PROPER CARE AND SUPERVISION.  SINCE THE PERSON CARING FOR THE CHILD
MUST HAVE FOOD, CLOTHING, AND OTHER ESSENTIALS, AMOUNTS ALLOTTED TO THE
CHILDREN MUST BE USED IN PART FOR THIS PURPOSE IF NO OTHER PROVISION IS
MADE TO MEET HER NEEDS.  . . .

        .          .          .          . 

     "TO CORRECT THE PRESENT ANOMALOUS SITUATION WHEREIN NO

  PROVISION IS MADE FOR THE ADULT RELATIVE AND TO ENABLE STATES TO

 MAKE PAYMENTS THAT ARE MORE NEARLY ADEQUATE, THE BILL WOULD

  INCLUDE THE RELATIVE WITH WHOM THE DEPENDENT CHILD IS LIVING AS A

  RECIPIENT FOR FEDERAL MATCHING PURPOSES.  . . . "  H.R. REP. NO.

  1300, 81ST CONG., 1ST SESS., 46 (1949). 

THIS AMENDMENT EMPHASIZES THE CONGRESSIONAL CONCERN WITH FULLY MEETING
THE NEEDS OF THE DEPENDENT CHILDREN IN A GIVEN FAMILY; AND IT WOULD
SEEM TO NEGATIVE THE NECESSITY OF THOSE CHILDREN SHARING THEIR
INDIVIDUAL ALLOCATIONS WITH OTHER ESSENTIAL MEMBERS OF THE FAMILY
UNIT. 

THERE IS OTHER EVIDENCE THAT CONGRESS INTENDED EACH ELIGIBLE
RECIPIENT TO RECEIVE HIS FAIR SHARE OF BENEFITS UNDER THE AFDC
PROGRAM.  THE PUBLIC WELFARE AMENDMENTS OF 1962 PROVIDED THAT A STATE
AFDC PLAN MUST "PROVIDE FOR THE DEVELOPMENT AND APPLICATION OF A
PROGRAM FOR (SERVICES TO MAINTAIN AND STRENGTHEN FAMILY LIFE) FOR EACH
CHILD WHO RECEIVES AID TO FAMILIES WITH DEPENDENT CHILDREN . . . . "
42 U.S.C. 602(A)(13).  THE SOCIAL SECURITY AMENDMENTS OF 1967, WHICH
EXTENDED THIS PROGRAM OF "FAMILY SERVICES" TO RELATIVES RECEIVING AFDC
PAYMENTS AND "ESSENTIAL PERSONS" LIVING IN THE SAME HOME AS THE CHILD
AND RELATIVE, RETAINED THE EMPHASIS ON PROVIDING THESE SERVICES TO
"EACH APPROPRIATE INDIVIDUAL."  SOCIAL SECURITY ACT, SECS. 402(A)(14),
(15), 42 U.S.C. 602(A)(14), (15) (1964 ED., SUPP. IV).  THE SENATE
FINANCE COMMITTEE REPORT ON THE 1967 AMENDMENTS STATED: 

     "UNDER THE SOCIAL SECURITY ACT AMENDMENTS OF 1962, AN
AMENDMENT

  WAS ADDED TO TITLE IV REQUIRING THE STATE WELFARE AGENCY TO MAKE

  A PROGRAM FOR EACH CHILD, IDENTIFYING THE SERVICES NEEDED, AND

  THEN TO PROVIDE THE NECESSARY SERVICES.  THIS HAS PROVEN A USEFUL

 AMENDMENT, FOR IT HAS REQUIRED THE STATES TO GIVE ATTENTION TO

  THE CHILDREN AND TO PROVIDE SERVICES NECESSARY TO CARRY OUT THE

  PLANS FOR THE INDIVIDUAL CHILD.  . . . (THE COMMITTEE BELIEVES

  THAT IT IS ESSENTIAL TO BROADEN THE REQUIREMENT FOR THE PROGRAM

  OF SERVICES FOR EACH CHILD TO INCLUDE THE ENTIRE FAMILY.  THE

  COMMITTEE BILL WOULD REQUIRE, THEREFORE, THAT THE STATES

  ESTABLISH A SOCIAL SERVICES PROGRAM FOR EACH AFDC FAMILY.  THUS

  THERE WILL BE A BROADENED EMPHASIS TO INCLUDE A RECOGNITION OF

  THE NEEDS OF ALL MEMBERS OF THE FAMILY, INCLUDING 'ESSENTIAL

  PERSONS.'"  S. REP. NO. 744, 90TH CONG., 1ST SESS., 155 (1967). 

THESE "FAMILY SERVICES" PROVISIONS ARE HELPFUL IN INTERPRETING THE
WORDS "ALL ELIGIBLE INDIVIDUALS" IN SEC. 402(A)(10) OF THE ACT FOR THEY
REVEAL CONGRESS' OVERRIDING CONCERN WITH MEETING THE NEEDS OF EACH
ELIGIBLE RECIPIENT OF AID UNDER THE AFDC PROGRAM.  THE RESOURCES
COMMANDED TO MEET THOSE NEEDS, AS WELL AS THE DEFINITION OF THOSE
INDIVIDUALS ELIGIBLE TO RECEIVE THIS AID, HAVE EXPANDED OVER THE
YEARS.  AT FIRST, ONLY FINANCIAL ASSISTANCE WAS AVAILABLE.  NOW "FAMILY
SERVICES" PROGRAMS HAVE BEEN ADDED.  /2/  IN EACH CASE, HOWEVER, THE
CONCERN HAS BEEN WITH MEETING THE NEEDS OF EACH ELIGIBLE RECIPIENT. 

A FURTHER INDICATION THAT THE PHRASE "ALL ELIGIBLE INDIVIDUALS" AS
USED IN SEC. 402(A)(10) REFERS TO THE INDIVIDUAL BENEFICIARIES OF AID,
AND NOT THOSE WHO APPLY FOR AND RECEIVE THE PAYMENTS, LIES IN THE
PROVISIONS OF THE ACT THAT CONCERN THE COMPUTATION OF FEDERAL PAYMENTS
TO THE STATES.  SOCIAL SECURITY ACT SEC. 403.  THESE PAYMENTS ARE
PRESENTLY COMPUTED IN RELATION TO THE STATE'S CONTRIBUTION TO
INDIVIDUAL RECIPIENTS, WITH FEDERAL PAYMENT OF FIVE-SIXTHS OF THE FIRST
$18 A MONTH PER RECIPIENT OF STATE EXPENDITURE, AND FURTHER PAYMENT UP
TO A MAXIMUM OF $32 A MONTH PER RECIPIENT.  THERE IS NO LIMITATION ON
FEDERAL PAYMENTS BASED ON FAMILY SIZE IN THE PRESENT PROVISIONS, NOR
HAS THERE EVER BEEN SUCH A LIMITATION IN PREVIUS VERSIONS OF THE ACT. 

PAYMENTS TO STATES AS RESPECTS CHILDREN WHOSE ELIGIBILITY IS BASED UPON
THE ABSENCE FROM THE HOME OF A PARENT.  UNDER THIS SECTION, THE NUMBER
OF AFDC CHILDREN UNDER THE AGE OF 18 FOR WHOM FEDERAL SHARING IS
AVAILABLE CANNOT EXCEED THE RATIO OF AFDC CHILDREN ELIGIBLE BECAUSE OF
AN "ABSENT PARENT" TO THE TOTAL CHILD POPULATION OF A STATE AS OF
JANUARY 1, 1968.  APPELLANTS HAVE ARGUED THAT THIS LIMITATION SOMEHOW
INDICATES CONGRESSIONAL APPROVAL OF THE MAXIMUM GRANT CONCEPT.  THE
DISTRICT COURT BELOW PROPERLY REJECTED THAT CONTENTION.  THE REPORT OF
THE HOUSE COMMITTEE ON WAYS AND MEANS INDICATES THAT THE PURPOSE OF THE
LIMITATION IS TO KEEP FEDERAL FINANCIAL PARTICIPATION "WITHIN
REASONABLE BOUNDS" AND TO "GIVE THE STATES AN INCENTIVE TO MAKE
EFFECTIVE USE OF THE CONSTRUCTIVE PROGRAMS WHICH THE BILL WOULD
ESTABLISH."  H.R. REP. NO. 544, 90TH CONG., 1ST SESS., 110.  KEEPING
FEDERAL PARTICIPATION "WITHIN REASONABLE BOUNDS" WAS TIED TO THE FACT
THAT THE "ABSENT PARENT" CATEGORY OF AFDC RECIPIENTS WAS THE ONE THAT
WAS GROWING MOST RAPIDLY.  IBID.  THIS PROVISION, HOWEVER, RELATES ONLY
TO FEDERAL CONTRIBUTIONS TO A STATE'S AFDC PROGRAM, AND DOES NOT
AUTHORIZE THE STATE'S TERMINATION OF AID TO ANY OF THE CHILDREN WHO
WOULD OTHERWISE BE ELIGIBLE FOR AID BECAUSE OF AN ABSENT PARENT. 
REPRESENTATIVE MILLS EXPLAINED THE PURPOSE OF THIS LIMITATION TO THE
HOUSE IN THE FOLLOWING TERMS: 

     "FINALLY, MR. CHAIRMAN, THE BILL WOULD ADD A PROVISION TO

  PRESENT LAW WHICH WOULD LIMIT FEDERAL FINANCING FOR THE LARGEST

  AFDC CATEGORY-- WHERE THE PARENT IS ABSENT FROM THE HOME-- TO THE

  PROPORTION OF EACH STATE'S TOTAL CHILD POPULATION THAT IS NOW

  RECEIVING AFDC IN THIS CATEGORY.  THIS PROVISION, WE BELIEVE,

  WOULD GIVE THE STATES AN ADDITIONAL INCENTIVE TO MAKE EFFECTIVE

  USE OF THE CONSTRUCTIVE PROGRAMS WHICH THE BILL WOULD ESTABLISH. 

MOREOVER, THIS LIMITATION ON FEDERAL MATCHING WILL NOT PREVENT

  ANY DESERVING FAMILY FROM RECEIVING AID PAYMENTS.  THE STATES

  WOULD NOT BE FREE TO KEEP ANY FAMILY OFF THE ROLLS TO KEEP WITHIN

  THIS LIMITATION BECAUSE THERE IS A REQUIREMENT IN THE LAW THAT

  REQUIRES EQUAL TREATMENT OF RECIPIENTS AND UNIFORM ADMINISTRATION

  OF A PROGRAM WITHIN A STATE.  . . . "

113 CONG.REC.  23055. 

IN SUM, THE PROVISIONS OF THE ACT THAT COMPUTE THE AMOUNT OF FEDERAL
CONTRIBUTION TO STATE AFDC PROGRAMS ARE RELATED TO STATE PAYMENTS TO
INDIVIDUAL RECIPIENTS AND HAVE CONSISTENTLY EXCLUDED ANY LIMITATION
BASED UPON FAMILY SIZE.  THE LIMITATION CONTAINED IN SEC. 403(D)(1) OF
THE ACT AFFECTS ONLY THE AMOUNT OF FEDERAL MATCHING FUNDS IN ONE
CATEGORY OF AID, AND IN NO WAY INDICATES CONGRESSIONAL APPROVAL OF
MAXIMUM GRANTS. 

THE PURPOSE OF THE AFDC PROVISIONS OF THE SOCIAL SECURITY ACT IS NOT
ONLY TO PROVIDE FOR THE NEEDS OF DEPENDENT CHILDREN BUT ALSO "TO KEEP
THE YOUNG CHILDREN WITH THEIR MOTHER IN THEIR OWN HOME, THUS PREVENTING
THE NECESSITY OF PLACING THE CHILDREN IN INSTITUTIONS."  S. REP. NO.
628, 74TH CONG., 1ST SESS., 17 (1935).  ALSO SEE SOCIAL SECURITY ACT
SEC. 401.  AS THE DISTRICT COURT NOTED, HOWEVER, "THE MAXIMUM GRANT
REGULATION PROVIDES A POWERFUL ECONOMIC INCENTIVE TO BREAK UP LARGE
FAMILIES BY PLACING 'DEPENDENT CHILDREN' IN EXCESS OF THOSE WHOSE
SUBSISTENCE NEEDS, WHEN ADDED TO THE SUBSISTENCE NEEDS OF OTHER MEMBERS
OF THE FAMILY, EXCEED THE MAXIMUM GRANT, IN THE HOMES OF PERSONS
INCLUDED IN THE CLASS OF ELIGIBLE RELATIVES."  297 F.SUPP.,AT 456.  BY
THIS DEVICE, PAYMENTS FOR THE "EXCESS" CHILDREN CAN BE OBTAINED. 

     "IF MRS. WILLIAMS WERE TO PLACE TWO OF HER CHILDREN OF TWELVE

  YEARS OR OVER WITH RELATIVES, EACH CHILD SO PLACED WOULD BE

  ELIGIBLE FOR ASSISTANCE IN THE AMOUNT OF $79.00 PER MONTH, AND

SHE AND HER SIX REMAINING CHILDREN WOULD STILL BE ELIGIBLE TO

  RECEIVE THE MAXIMUM GRANT OF $250.00.  IF MR. AND MRS. GARY WERE

  TO PLACE TWO OF THEIR CHILDREN BETWEEN THE AGES OF SIX AND TWELVE

  WITH RELATIVES, EACH CHILD SO PLACED WOULD BE ELIGIBLE FOR

  ASSISTANCE IN THE AMOUNT OF $65.00 PER MONTH, AND THEY AND THEIR

  SIX REMAINING CHILDREN WOULD STILL BE ELIGIBLE TO RECEIVE THE

  MAXIMUM GRANT OF $250.00."  ID., AT 453-454. 

THE DISTRICT COURT CORRECTLY STATES THAT THIS INCENTIVE TO BREAK UP
FAMILY UNITS CREATED BY THE MAXIMUM GRANT REGULATION IS IN CONFLICT
WITH A FUNDAMENTAL PURPOSE OF THE ACT. 

THE HISTORY OF THE SOCIAL SECURITY ACT THUS INDICATES THAT CONGRESS
INTENDED THE FINANCIAL BENEFITS, AS WELL AS THE OTHER BENEFITS, OF THE
AFDC PROGRAM TO REACH EACH INDIVIDUAL RECIPIENT ELIGIBLE UNDER THE
FEDERAL CRITERIA.  IT WAS TO THIS PURPOSE THAT CONGRESS HAD REFERENCE
WHEN IT COMMANDED IN SEC. 402(A)(10) OF THE ACT THAT AID TO FAMILIES
WITH DEPENDENT CHILDREN SHALL BE FURNISHED TO "ALL ELIGIBLE
INDIVIDUALS." 

THE COURT ATTEMPTS TO AVOID THE EFFECT OF THIS COMMAND BY STATING
THAT "IT IS THE FAMILY GRANT THAT IS AFFECTED."  ANTE, AT 477-478.  THE
IMPLICATION IS THAT, REGARDLESS OF HOW THE AFDC PAYMENTS ARE COMPUTED
OR TO WHOM THEY APPLY, THE PAYMENTS WILL BE USED BY THE PARENTS FOR THE
BENEFIT OF ALL THE MEMBERS OF THE FAMILY UNIT.  THIS IS NO DOUBT TRUE. 
BUT THE FACT THAT THE PARENTS MAY TAKE PORTIONS OF THE PAYMENTS
INTENDED FOR CERTAIN CHIDLREN TO GIVE TO OTHER CHILDREN WHO ARE NOT
GIVEN PAYMENTS UNDER THE STATE'S AFDC PLAN, DOES NOT ALTER THE FACT
THAT AID IS NOT BEING GIVEN BY THE STATE TO THE LATTER CHILDREN.  AND
IT IS PAYMENTS BY THE STATE, NOT BY THE PARENTS, TO WHICH THE COMMAND
OF SEC. 402(A)(10) IS DIRECTED.  THE COURT'S ARGUMENT WOULD EQUATE
FAMILY GRANT MAXIMUMS WITH PERCENTAGE REDUCTIONS, BUT THE TWO ARE, IN
FACT, QUITE DISTINCT DEVICES FOR LIMITING WELFARE PAYMENTS.  IF
CONGRESS WISHED TO DESIGN A SCHEME UNDER WHICH EACH FAMILY RECEIVED
EQUAL PAYMENTS, IRRESPECTIVE OF THE SIZE OF THE FAMILY, I SEE NOTHING
THAT WOULD PREVENT IT FROM DOING SO.  BUT THAT IS NOT THE SCHEME OF
CONGRESS UNDER THE PRESENT ACT. 

AGAINST THE LEGISLATIVE HISTORY AND THE COMMAND OF SEC. 402(A)(10),
THE APPELLANTS CITE THREE PROVISIONS OF THE SOCIAL SECURITY ACT AS
RECOGNIZING THE VALIDITY OF STATE MAXIMUM GRANT REGULATIONS. 

THE FIRST OF THESE PROVISIONS IS SEC. 402(A)(23) OF THE ACT, 42
U.S.C. 602(A)(23) (1964 ED., SUPP. IV), WHICH PROVIDES: 

"(A STATE PLAN FOR AID AND SERVICES TO NEEDY FAMILIES WITH CHILDREN
MUST) PROVIDE THAT BY JULY 1, 1969, THE AMOUNTS USED BY THE STATE TO
DETERMINE THE NEEDS OF INDIVIDUALS WILL HAVE BEEN ADJUSTED TO REFLECT
FULLY CHANGES IN LIVING COSTS SINCE SUCH AMOUNTS WERE ESTABLISHED, AND
ANY MAXIMUMS THAT THE STATE IMPOSES ON THE AMOUNT OF AID PAID TO
FAMILIES WILL HAVE BEEN PROPORTIONATELY ADJUSTED."  THIS SECTION HAD
ITS GENESIS IN AN ADMINISTRATION PROPOSAL TO REQUIRE STATES TO PAY
FULLY THE AMOUNTS REQUIRED BY THEIR STANDARD OF NEED, AND ALSO TO MAKE
COST-OF-LIVING ADJUSTMENTS TO THAT STANDARD OF NEED BY JULY 1, 1968,
AND ANNUALLY THEREAFTER.  HEARINGS ON H.R. 5710 BEFORE THE HOUSE
COMMITTEE ON WAYS AND MEANS, 90TH CONG., 1ST SESS., PT. 1, P. 59
(1967); HOUSE COMMITTEE ON WAYS AND MEANS, SECTION-BY-SECTION ANALYSIS
AND EXPLANATION OF PROVISIONS OF H.R. 5710, 90TH CONG., 1ST SESS., 36
(COMM. PRINT) (1967).  THE BILL THAT EMERGED FROM THE HOUSE AS H.R.
12080, HOWEVER, DID NOT INCLUDE ANY PROVISION RELATING TO AN INCREASE
IN BENEFIT LEVELS OR ADJUSTMENTS TO STANDARDS OF NEED.  SEE HEARINGS ON
H.R. 12080 BEFORE THE SENATE COMMITTEE ON FINANCE, 90TH CONG., 1ST
SESS., PT. 1, PP. 109-144 (1967).  A PROVISION REQUIRING A COST-OF
LIVING ADJUSTMENT IN THE STANDARD OF NEED BY JULY 1, 1969, AND ANNUALLY
THEREAFTER WAS ADDED TO THE HOUSE BILL BY THE SENATE FINANCE COMMITTEE,
AND THIS PROVISION ALSO REQUIRED THAT "ANY MAXIMUMS . . . ON THE AMOUNT
OF AID" BE PROPORTIONATELY ADJUSTED.  S. REP. NO. 744, 90TH CONG., 1ST
SESS., 293 (1967).  AN AMENDMENT OF THE BILL WAS PROPOSED IN THE SENATE
THAT WOULD HAVE REQUIRED A POSITIVE INCREASE IN AFDC PAYMENTS, BUT THAT
AMENDMENT WAS REJECTED.  113 CONG.REC.  33560.  THE SENATE-HOUSE
CONFERENCE COMMITTEE ADOPTED THE SENATE AFDC COST-OF-LIVING PROVISION,
OMITTING ONLY THE REQUIREMENT FOR ANNUAL UPDATING OF NEED STANDARDS
AFTER JULY 1, 1969.  H.R. CONF. REP. NO. 1030, 90TH CONG., 1ST SESS, 63
(1967). 

NOWHERE IN ANY OF THE HEARINGS, COMMITTEE REPORTS, OR FLOOR DEBATES,
IS THERE SHOWN A CONGRESSIONAL INTENT TO VALIDATE STATE MAXIMUM GRANT
REGULATIONS BY THE PROVISIONS OF SEC. 402(A)(23).  RATHER, THE
LEGISLATIVE HISTORY SHOWS THAT CONGRESS WAS EXCLUSIVELY CONCERNED WITH
INCREASING THE INCOME OF AFDC RECIPIENTS.  IF CONGRESS HAD NOT REQUIRED
COST-OF-LIVING ADJUSTMENTS IN STATE-IMPOSED GRANT MAXIMUMS, THE STATES
COULD EASILY NULLIFY THE EFFECT OF THE COST-OF-LIVING ADJUSTMENTS FOR
MANY AFDC FAMILIES BY RETAINING THE GRANT CEILINGS IN FORCE BEFORE THE
ADJUSTMENT WAS MADE.  CONGRESS WAS, TO BE SURE, ACKNOWLEDGING THE
EXISTENCE OF MAXIMUM GRANT REGULATIONS.  BUT EVERY CONGRESSIONAL
REFERENCE TO AN EXISTING PRACTICE DOES NOT AUTOMATICALLY IMPLY APPROVAL
OF THAT PRACTICE.  THE TASK OF STATUTORY CONSTRUCTION REQUIRES MORE. 
IT REQUIRES COURTS TO LOOK TO THE CONTEXT OF THAT REFERENCE, AND TO THE
HISTORY OF RELEVANT LEGISLATION.  IN THE PRESENT CONTEXT, THE REFERENCE
MAXIMUM GRANTS WAS NECESSARY TO PRESERVE THE INTEGRITY OF THE COST-OF
LIVING ADJUSTMENT REQUIRED BY THE BILL.  NO FURTHER SIGNIFICANCE CAN
LEGITIMATELY BE READ INTO THAT REFERENCE. 

APPELLANTS ALSO RELY ON SEC. 108(A) OF PUB. L. 87-543, 76 STAT. 189,
A PROVISION OF THE PUBLIC WELFARE AMENDMENTS OF 1962 THAT AMENDED SEC.
406 OF THE ACT.  THIS AMENDMENT, WHICH HAS SINCE BEEN SUPERSEDED,
AUTHORIZED "PROTECTIVE PAYMENTS" TO AN INDIVIDUAL OTHER THAN THE
RELATIVE WITH WHOM THE DEPENDENT CHILD IS LIVING.  THE PROBLEM WHICH
THIS AMENDMENT WAS DESIGNED TO CURE WAS THAT SOME PAYEES WERE UNABLE TO
MANAGE THEIR FUNDS SO THE THE DEPENDENT CHILDREN RECEIVED THE FULL
BENEFIT OF THE AFDC PAYMENTS.  HEARINGS ON H.R. 10606, 2D SESS., 137
(1962).  THE HOUSE BILL REQUIRED "A MEETING OF ALL NEED AS DETERMINED
BY THE STATE" AS A CONDITION OF INCLUDING "PROTECTIVE PAYMENTS" WITHIN
THE DEFINITION OF "AID TO FAMILIES WITH DEPENDENT CHILDREN."  THE
SENATE FINANCE COMMITTEE CHANGED THAT REQUIREMENT, HOWEVER, BY AN
AMENDMENT WHICH AUTHORIZED FEDERAL FUNDING OF "PROTECTIVE PAYMENTS" IF
THE STATE-DETERMINED NEED OF INDIVIDUALS WITH RESPECT TO WHOM SUCH
PAYMENTS WERE MADE WAS FULLY MET BY THEIR ASSISTANCE PAYMENT AND OTHER
INCOME OR RESOURCES.  THE SENATE COMMITTEE EXPLAINED THIS PROVISION AS
FOLLOWS: 

"THE EFFECT OF THIS PROVISION IS TO MAKE IT POSSIBLE FOR PROTECTIVE
PAYMENTS TO BE MADE IN BEHALF OF CERTAIN ADC RECIPIENTS IN STATES IN
WHICH THERE IS A MAXIMUM LIMITING THE AMOUNT OF ASSISTANCE AN
INDIVIDUAL MAY RECEIVE.  THESE ARE THE CASES IN WHICH THE STATUTORY
MAXIMUM DOES NOT PREVENT NEED FROM BEING MET IN FULL ACCORDING TO THE
STATE'S STANDARDS."  S. REP. NO. 1589, 87TH CONG., 2D SESS., 14
(1962).  THIS REFERENCE TO A STATE-IMPOSED MAXIMUM CAN HARDLY BE
INTERPRETED AS A CONGRESSIONAL APPROVAL OF A FAMILY MAXIMUM GRANT.  IF
ANYTHING, IT IMPLICITLY DISAPPROVES THE CONCEPT BY WITHHOLDING FEDERAL
PAYMENTS WITH RESPECT TO INDIVIDUALS RECEIVING "PROTECTIVE PAYMENTS"
WHEN A MAXIMUM GRANT OPERATES TO PREVENT THESE INDIVIDUALS FROM
RECEIVING THE FULL AMOUNT OF THEIR STATE-DETERMINED NEED. 

THE FINAL STATUTORY PROVISION RELIED UPON BY APPELLANTS IS SEC.
220(A) OF PUB. L. 90-248, 81 STAT. 898, WHICH ADDED TO THE MEDICAL
ASSISTANCE TITLE OF THE ACT A NEW SEC. 1903(F), 42 U.S.C. 1396BF) (1964
ED., SUPP. IV).  THIS SECTION LIMITS FEDERAL FINANCIAL PARTICIPATION IN
MEDICAL ASSISTANCE BENEFITS TO THOSE WHOSE INCOMES DO NOT EXCEED 133
1/3% OF THE HIGHEST AMOUNT OF AFDC ASSISTANCE PAID TO A FAMILY OF THE
SAME SIZE WITHOUT ANY INCOME OR RESOURCES.  THIS SECTION, HOWEVER, ALSO
PROVIDES:  "IF THE SECRETARY (OF HEW) FINDS THAT THE OPERATION OF A
UNIFORM MAXIMUM LIMITS PAYMENTS TO FAMILIES OF MORE THAN ONE SIZE, HE
MAY ADJUST THE AMOUNT OTHERWISE DETERMINED . . . TO TAKE ACCOUNT OF
FAMILIES OF DIFFERENT SIZES."  THE PURPOSE OF THIS PROVISION WAS TO
ALLOW QUALIFICATION AS MEDICALLY INDIGENT OF THOSE INDIVIDUALS WHO
WOULD HAVE QUALIFIED BUT FOR THE OPERATION OF AN AFDC GRANT MAXIMUM,
AND THUS PREVENT THE EXTENSION OF THE OPERATION OF GRANT MAXIMUMS INTO
THE MEDICAL ASSISTANCE TITLE.  CONGRESSIONAL REJECTION OF GRANT
MAXIMUMS IN THE MEDICAL ASSISTANCE TITLE DOES NOT INFER THEIR APPROVAL
IN THE CONTEXT OF THE AFDC PROVISIONS.  QUITE THE CONTRARY WOULD SEEM
TO BE THE CASE. 

IN ALL OF THE LEGISLATIVE PROVISIONS RELIED UPON BY THE APPELLANTS,
THE CONGRESSIONAL REFERENCE TO MAXIMUM GRANTS HAS BEEN MADE IN THE
CONTEXT OF ATTEMPTING TO ALLEVIATE THE HARSH RESULTS OF THEIR
APPLICATION, NOT IN A CONTEXT OF APPROVING AND SUPPORTING THEIR
OPERATION.  THE THREE STATUTORY REFERENCES CITED BY APPELLANTS AND
DISCUSSED ABOVE ARE CLEARLY INADEQUATE TO OVERCOME THE LONG HISTORY OF
CONCERN MANIFESTED IN THE AFDC PROVISIONS OF THE SOCIAL SECURITY ACT
FOR MEETING THE NEEDS OF EACH ELIGIBLE RECIPIENT, AND THE COMMAND OF
SEC. 402(A)(10) OF THE ACT TO THAT EFFECT. 

APPELLANTS TENDER ONE FURTHER ARGUMENT AS TO THE COMPLIANCE OF THE
MARYLAND MAXIMUM GRANT REGULATION WITH THE SOCIAL SECURITY ACT.  THAT
ARGUMENT IS THAT THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE HAS
NOT DISAPPROVED OF ANY OF THE MARYLAND PLANS THAT HAVE INCLUDED MAXIMUM
GRANT PROVISIONS, AND THAT THIS LACK OF DISAPPROVAL BY HEW IS A BINDING
ADMINISTRATIVE DETERMINATION AS TO THE CONFORMITY OF THE REGULATION
WITH THE SOCIAL SECURITY ACT.  THAT ARGUMENT WAS THOROUGHLY EXPLORED BY
THE DISTRICT COURT BELOW IN ITS SUPPLEMENTAL OPINION.  THE DISTRICT
COURT ACCEPTED THE CLAIM THAT HEW CONSIDERS THE MARYLAND MAXIMUM GRANT
REGULATION NOT TO BE VIOLATIVE OF THE ACT, BUT HELD: 

"IN VIEW OF THE FACT, HOWEVER, THAT THERE IS NO INDICATION FROM
ADMINISTRATIVE DECISION, PROMULGATED REGULATION, OR DEPARTMENTAL
STATEMENT THAT THE QUESTION OF THE CONFORMITY OF MAXIMUM GRANTS TO THE
ACT HAS BEEN GIVEN CONSIDERED TREATMENT, WE BELIEVE THAT THE VARIOUS
ACTIONS AND INACTIONS ON THE PART OF HEW ARE NOT ENTITLED TO
SUBSTANTIAL, MUCH LESS TO DECISIVE, WEIGHT IN OUR CONSIDERATION OF THE
INSTANT CASE."  297 F.SUPP.,AT 460.  HEW SELDOM HAS FORMALLY CHALLENGED
THE COMPLIANCE OF A STATE WELFARE PLAN WITH THE TERMS OF THE SOCIAL
SECURITY ACT.  SEE NOTE, FEDERAL JUDICIAL REVIEW OF STATE WELFARE
PRACTICES, 67 COL.L.REV.  84, 91 (1967).  THE MERE ABSENCE OF SUCH A
FORMAL CHALLENGE, WHATEVER MAY BE SAID FOR ITS CONSTITUTING AN
AFFIRMATIVE DETERMINATION OF THE COMPLIANCE OF A STATE PLAN WITH THE
SOCIAL SECURITY ACT, IS NOT SUCH A DETERMINATION AS IS ENTITLED TO
DECISIVE WEIGHT IN THE JUDICIAL DETERMINATION OF THIS QUESTION. 

ON THE BASIS OF THE INCONSISTENCY OF THE MARYLAND MAXIMUM GRANT
REGULATION WITH THE SOCIAL SECURITY ACT, I WOULD AFFIRM THE JUDGMENT
BELOW. 

/1/  IN CERTAIN COUNTIES THE APPLICABLE MAXIMUM GRANT IS $240 PER
MONTH.  ALL OF THE APPELLEES IN THIS CASE ARE RESIDENTS OF BALTIMORE
CITY, WHERE THE $250-PER-MONTH MAXIMUM GRANT APPLIES. 

/2/  THE BENEFITS DISTRIBUTED UNDER THE AFDC PROGRAM INCLUDE
"FINANCIAL ASSISTANCE AND REHABILITATION AND OTHER SERVICES."  SOCIAL
SECURITY ACT SEC. 401.  THE TERM "AID TO FAMILIES WITH DEPENDENT
CHILDREN" IS ITSELF DEFINED IN SEC. 406(B) OF THE ACT, AS "MONEY
PAYMENTS WITH RESPECT TO, OR . . . MEDICAL CARE IN BEHALF OF OR ANY
TYPE OF REMEDIAL CARE RECOGNIZED UNDER STATE LAW" IN BEHALF OF
DEPENDENT CHILDREN, THE RELATIVES WITH WHOM THEY LIVE, AND OTHER
"ESSENTIAL PERSONS" RESIDING WITH THE RELATIVE AND CHILD. 

THE SERVICES PROVIDED BY THE ACT FOR AFDC RECIPIENTS INCLUDE "FAMILY
SERVICES" AND "CHILD-WELFARE SERVICES."  "FAMILY SERVICES" ARE DEFINED
BY SEC. 406(D) OF THE ACT, AS "SERVICES TO A FAMILY OR ANY MEMBER
THEREOF FOR THE PURPOSE OF PRESERVING, REHABILITATING, REUNITING, OR
STRENGTHENING THE FAMILY, AND SUCH OTHER SERVICES AS WILL ASSIST
MEMBERS OF A FAMILY TO ATTAIN OR RETAIN CAPABILITY FOR THE MAXIMUM SELF
SUPPORT AND PERSONAL INDEPENDENCE."  "CHILD-WELFARE PROGRAMS" ARE
DEFINED BY SEC. 425 OF THE ACT, 42 U.S.C. 625 (1964 ED., SUPP. IV), AS
"PUBLIC SOCIAL SERVICES WHICH SUPPLEMENT, OR SUBSTITUTE FOR, PARENTAL
CARE AND SUPERVISION FOR THE PURPOSE OF (1) PREVENTING OR REMEDYING, OR
ASSISTING IN THE SOLUTION OF PROBLEMS WHICH MAY RESULT IN, THE NEGLECT,
ABUSE, EXPLOITATION, OR DELINQUENCY OF CHILDREN, (2) PROTECTING AND
CARING FOR HOMELESS, DEPENDENT, OR NEGLECTED CHILDREN, (3) PROTECTING
AND PROMOTING THE WELFARE OF CHILDREN OF WORKING MOTHERS, AND (4)
OTHERWISE PROTECTING AND PROMOTING THE WELFARE OF CHILDREN, INCLUDING
THE STRENGTHENING OF THEIR OWN HOMES WHERE POSSIBLE OR, WHERE NEEDED,
THE PROVISION OF ADEQUATE CARE OF CHILDREN AWAY FROM THEIR HOMES IN
FOSTER FAMILY HOMES OR DAY-CARE OR OTHER CHILD-CARE FACILITIES."  IN
ADDITION, SEC. 402(A)(15) OF THE ACT REQUIRES THE STATE AFDC PLAN TO
PROVIDE FOR THE DEVELOPMENT OF A PROGRAM FOR EACH APPROPRIATE RELATIVE
AND DEPENDENT CHILD RECEIVING AID UNDER THE PLAN, AND OTHER "ESSENTIAL
PERSONS" LIVING WITH A RELATIVE AND CHILD RECEIVING SUCH AID, "WITH THE
OBJECTIVE OF-- (I) ASSURING, TO THE MAXIMUM EXTENT POSSIBLE, THAT SUCH
RELATIVE, CHILD, AND INDIVIDUAL WILL ENTER THE LABOR FORCE AND ACCEPT
EMPLOYMENT SO THAT THEY WILL BECOME SELF-SUFFICIENT, AND (II)
PREVENTING OR REDUCING THE INCIDENCE OF BIRTHS OUT OF WEDLOCK AND
OTHERWISE STRENGTHENING FAMILY LIFE . . . . " 

FOR THE ESTABLISHMENT OF WORK-INCENTIVE PROGRAMS FOR AFDC RECIPIENTS
WHICH INCLUDE THE PLACEMENT OF RECIPIENTS OVER THE AGE OF 16 IN
EMPLOYMENT, "INSTITUTIONAL AND WORK EXPERIENCE TRAINING FOR THOSE
INDIVIDUALS FOR WHOM SUCH TRAINING IS LIKELY TO LEAD TO REGULAR
EMPLOYMENT," AND "SPECIAL WORK PROJECTS FOR INDIVIDUALS FOR WHOM A JOB
IN THE REGULAR ECONOMY CANNOT BE FOUND."  SEE ALSO SOCIAL SECURITY ACT
SEC. 402(A)(19). 

THE STATE MUST ALSO PROVIDE FOSTER CARE IN ACCORDANCE WITH SEC. 408
OF THE ACT.  SEE SOCIAL SECURITY ACT SEC. 402(A)(20).  AND WHENEVER THE
STATE FEELS THAT AFDC PAYMENTS MAY NOT BE USED IN THE BEST INTERESTS OF
THE CHILD, IT MAY PROVIDE FOR COUNSELING OR GUIDANCE WITH RESPECT TO
THE USE OF SUCH PAYMENTS AND THE MANAGEMENT OF OTHER FUNDS.  SOCIAL
SECURITY ACT SEC. 405, 42 U.S.C. 605. 

MR. JUSTICE MARSHALL, WHOM MR. JUSTICE BRENNAN JOINS, DISSENTING. 

FOR THE REASONS STATED BY MR. JUSTICE DOUGLAS, TO WHICH I ADD SOME
COMMENTS OF MY OWN, I BELIEVE THAT THE COURT HAS ERRONEOUSLY CONCLUDED
THAT MARYLAND'S MAXIMUM GRANT REGULATION IS CONSISTENT WITH THE FEDERAL
STATUTE.  IN MY VIEW, THAT REGULATION IS FUNDAMENTALLY IN CONFLICT WITH
THE BASIC STRUCTURE AND PURPOSES OF THE SOCIAL SECURITY ACT. 

MORE IMPORTANT IN THE LONG RUN THAN THIS MISREADING OF A FEDERAL
STATUTE, HOWEVER, IS THE COURT'S EMASCULATION OF THE EQUAL PROTECTION
CLAUSE AS A CONSTITUTIONAL PRINCIPLE APPLICABLE TO THE AREA OF SOCIAL
WELFARE ADMINISTRATION.  THE COURT HOLDS TODAY THAT REGARDLESS OF THE
ARBITRARINESS OF A CLASSIFICATION IT MUST BE SUSTAINED IF ANY STATE
GOAL CAN BE IMAGINED THAT IS ARGUABLE FURTHERED BY ITS EFFECTS.  THIS
IS SO EVEN THOUGH THE CLASSIFICATION'S UNDERINCLUSIVENESS OR
OVERINCLUSIVENESS CLEARLY DEMONSTRATES THAT ITS ACTUAL BASIS IS
SOMETHING OTHER THAN THAT ASSERTED BY THE STATE, AND EVEN THOUGH THE
RELATIONSHIP BETWEEN THE CLASSIFICATION AND THE STATE INTERESTS WHICH
IT PURPORTS TO SERVE IS SO TENUOUS THAT IT COULD NOT SERIOUSLY BE
MAINTAINED THAT THE CLASSIFICATION TENDS TO ACCOMPLISH THE ASCRIBED
GOALS. 

THE COURT RECOGNIZES, AS IT MUST, THAT THIS CASE INVOLVES "THE MOST
BASIC ECONOMIC NEEDS OF IMPOVERISHED HUMAN BEINGS," AND THAT THERE IS
THEREFORE A "DRAMITICALLY REAL FACTUAL DIFFERENCE" BETWEEN THE INSTANT
CASE AND THOSE DECISIONS UPON WHICH THE COURT RELIES.  THE
ACKNOWLEDGMENT THAT THESE DRAMATIC DIFFERENCES EXIST IS A CANDID
RECOGNITION THAT THE COURT'S DECISION TODAY IS WHOLLY WITHOUT
PRECEDENT.  I CANNOT SUBSCRIBE TO THE COURT'S SWEEPING REFUSAL TO
ACCORD THE EQUAL PROTECTION CLAUSE ANY ROLE IN THIS ENTIRE AREA OF THE
LAW, AND I THEREFORE DISSENT FROM BOTH PARTS OF THE COURT'S DECISION. 

        I 

AT THE OUTSET, IT SHOULD BE EMPHASIZED EXACTLY WHAT IS INVOLVED IN
DETERMINING WHETHER THIS MAXIMUM GRANT REGULATION IS CONSISTENT WITH
AND VALID UNDER THE FEDERAL LAW.  IN ADMINISTERING ITS AFDC PROGRAM,
MARYLAND HAS ESTABLISHED ITS OWN STANDARDS OF NEED, AND THEY ARE NOT
UNDER CHALLENGE IN THIS LITIGATION.  INDEED, THE DISTRICT COURT
SPECIFICALLY REFUSED TO REQUIRE ADDITIONAL APPROPRIATIONS ON THE PART
OF THE STATE OR TO PERMIT APPELLEES TO RECOVER A MONETARY JUDGMENT
AGAINST THE STATE.  AT THE SAME TIME, HOWEVER, THERE IS NO CONTENTION,
NOR COULD THERE BE ANY, THAT THE MAXIMUM GRANT REGULATION IS IN ANY
MANNER RELATED TO CALCULATION OF NEED.  /1/  RATHER, IT ARBITRARILY
CUTS ACROSS STATE-DEFINED STANDARDS OF NEED TO DENY ANY ADDITIONAL
ASSISTANCE WITH RESPECT TO THE FIFTH OR ANY SUCCEEDING CHILD IN A
FAMILY.  /2/  IN SHORT, THE REGULATION REPRESENTS NO LESS THAN THE
REFUSAL OF THE STATE TO GIVE ANY AID WHATSOEVER FOR THE SUPPORT OF
CERTAIN DEPENDENT CHILDREN WHO MEET THE STANDARDS OF NEED THAT THE
STATE ITSELF HAS ESTABLISHED.     SINCE ITS INCEPTION IN THE SOCIAL
SECURITY ACT OF 1935, THE FOCUS OF THE FEDERAL AFDC PROGRAM HAS BEEN TO
PROVIDE BENEFITS FOR THE SUPPORT OF DEPENDENT CHILDREN OF NEEDY
FAMILIES WITH A VIEW TOWARD MAINTAINING AND STRENGTHENING FAMILY LIFE
WITHIN THE FAMILY UNIT.  AS SUCCINCTLY STATED BY THE SENATE COMMITTEE
ON FINANCE, "(THE OBJECTIVE OF THE AID TO DEPENDENT CHILDREN PROGRAM IS
TO PROVIDE CASH ASSISTANCE FOR NEEDY CHILDREN IN THEIR OWN HOMES."  /3/
IN MEETING THESE OBJECTIVES, MOREOVER, CONGRESS HAS PROVIDED THE
OUTLINES THAT THE AFDC PLAN IS TO FOLLOW IF A STATE SHOULD CHOOSE TO
PARTICIPATE IN THE FEDERAL PROGRAM.  THE MAXIMUM GRANT REGULATION,
HOWEVER, DOES NOT FALL WITHIN THESE OUTLINES OR ACCORD WITH THE
PURPOSES OF THE ACT.  AND THE COURT BY APPROVING IT ALLOWS FOR A
COMPLETE DEPARTURE FROM THE CONGRESSIONAL INTENT. 

THE PHRASE "AID TO FAMILIES WITH DEPENDENT CHILDREN," FROM WHICH THE
AFDC PROGRAM DERIVES ITS NAME, APPEARS IN SEC. 402(A)(10) OF THE ACT,
42 U.S.C. 602(A)(10) (1964 ED., SUPP. IV), AND IS DEFINED IN 42 U.S.C.
606(B) (1964 ED., SUPP. IV) AS, INTER ALIA, "MONEY PAYMENTS WITH
RESPECT TO . . . DEPENDENT CHILDREN."  MOREOVER, THE TERM "DEPEND
CHILD" IS ALSO EXTENSIVELY DEFINED IN THE ACT.  SEE 42 U.S.C. 606(A)
(1964 ED., SUPP. IV).  NOWHERE IN THE ACT IS THERE ANY SANCTION OR
AUTHORITY FOR THE STATE TO ALTER THOSE DEFINITIONS-- THAT IS, TO SELECT
ARBITRARILY FROM AMONG THE CLASS OF NEEDY DEPENDENT CHILDREN THOSE WHOM
IT WILL AID.  YET THE CLEAR EFFECT OF THE MAXIMUM GRANT REGULATION IS
TO DO JUST THAT, FOR THE REGULATION CREATES IN EFFECT A CLASS OF
OTHERWISE ELIGIBLE DEPENDENT CHILDREN WITH RESPECT TO WHOM NO
ASSISTANCE IS GRANTED. 

IT WAS TO DISAPPROVE JUST SUCH AN ARBITRARY DEVICE TO LIMIT AFDC
PAYMENTS THAT CONGRESS AMENDED SEC. 402(A)(10) IN 1950 TO PROVIDE THAT
AID "SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE
INDIVIDUALS."  SURELY, AS MY BROTHER DOUGLAS DEMONSTRATES, THIS
STATUTORY LANGUAGE MEANS AT LEAST THAT THE STATE MUST TAKE INTO ACCOUNT
THE NEEDS OF, AND PROVIDE AID WITH RESPECT TO, ALL NEEDY DEPENDENT
CHILDREN.  INDEED, THAT WAS OUR ASSESSMENT OF THE CONGRESSIONAL DESIGN
EMBODIED IN THE AFDC PROGRAM IN KING V. SMITH, 392 U.S. 309, 329-330,
333 (1968). 

THE OPINION OF THE COURT ATTEMPTS TO AVOID THIS READING OF THE
STATUTORY MANDATE BY THE CONCLUSION THAT PARENTS WILL SEE THAT ALL THE
CHILDREN IN A LARGE FAMILY SHARE IN WHATEVER RESOURCES ARE AVAILABLE SO
THAT ALL CHILDREN "DO RECEIVE SOME AID."  AND "(SO LONG AS SOME AID IS
PROVIDED TO ALL ELIGIBLE FAMILIES AND ALL ELIGIBLE CHILDREN, THE
STATUTE ITSELF IS NOT VIOLATED."  THE COURT ALSO VIEWS SYMPATHETICALLY
THE STATE'S CONTENTION THAT THE "ALL ELIGIBLE INDIVIDUALS" CLAUSE WAS
DESIGNED SOLELY TO PREVENT DISCRIMINATION AGAINST NEW APPLICANTS FOR
AFDC BENEFITS.  I AM UNPERSUADED, HOWEVER, BY THE VIEW THAT CONGRESS
SIMULTANEOUSLY PROHIBITED DISCRIMINATION AGAINST ONE CLASS OF DEPENDENT
CHILDREN-- THOSE IN FAMILIES NOT PRESENTLY RECEIVING BENEFITS-- AND AT
THE SAME TIME SANCTIONED DISCRIMINATION AGAINST ANOTHER CLASS-- THOSE
CHILDREN IN LARGE FAMILIES.  FURTHERMORE, THE COURT'S INTERPRETATION
WOULD PERMIT A STATE TO IMPOSE A DRASTICALLY REDUCED MAXIMUM GRANT
LIMITATION-- OR, INDEED, A UNIFORM PAYMENT OF, SAY, $25 PER FAMILY PER
MONTH-- AS LONG AS ALL FAMILIES WERE SUBJECT TO THE RULE.  THUS, MERELY
BY PURPORTING TO COMPUTE STANDARDS OF NEED AND GRANTING SOME BENEFITS
TO ALL ELIGIBLE FAMILIES, THE STATE WOULD COMPLY WITH THE FEDERAL LAW--
IN SPITE OF THE FACT THAT THE NEEDS OF NO OR VERY FEW DEPENDENT
CHILDREN WOULD THEREBY BE TAKEN INTO ACCOUNT IN THE ACTUAL ASSISTANCE
GRANTED.  I CANNOT AGREE THAT CONGRESS INTENDED THAT A STATE SHOULD BE
ENTITLED TO PARTICIPATE IN THE FEDERALLY FUNDED AFDC PROGRAM UNDER SUCH
CIRCUMSTANCES. 

MOREOVER, THE PRACTICAL CONSEQUENCES OF THE MAXIMUM GRANT REGULATION
IN QUESTION HERE CONFIRM MY VIEW THAT IT IS INVALID.  UNDER THE
COMPLICATED FORMULA FOR DETERMINING THE EXTENT OF FEDERAL SUPPORT FOR
THE AFDC PROGRAM IN THE VARIOUS STATES, THE FEDERAL SUBSIDY IS BASED
UPON "THE TOTAL NUMBER OF RECIPIENTS OF AID TO FAMILIES WITH DEPENDENT
CHILDREN."  42 U.S.C. 603(A) (1964 ED., SUPP. IV).  "RECIPIENTS" IS
DEFINED IN THE SAME PROVISION TO INCLUDE BOTH DEPENDENT CHILDREN AND
THE ELIGIBLE RELATIVE OR RELATIVES WITH WHOM THEY LIVE.  THERE IS,
HOWEVER, NO LIMITATION UPON THE NUMBER OF RECIPIENTS PER FAMILY UNIT
FOR WHOM THE FEDERAL SUBSIDY IS PAID TO THE STATES.  THUS, WHEN A
MAXIMUM FAMILY GRANT REGULATION IS IN EFFECT, THE STATE CONTINUES TO
RECEIVE A FEDERAL SUBSIDY FOR EACH AND EVERY DEPENDENT CHILD EVEN
THOUGH THE STATE PASSES NONE OF THIS SUBSIDY ON TO THE LARGE FAMILIES
FOR THE USE OF THE ADDITIONAL DEPENDENT CHILDREN. 

SPECIFICALLY, IN MARYLAND, THE RECORD IN THIS CASE INDICATES THAT
THE STATE SPENDS AN AVERAGE OF ALMOST $40 PER RECIPIENT PER MONTH. 
UNDER THE FEDERAL MATCHING FORMULA, FEDERAL FUNDS PROVIDE $22 OF THE
FIRST $32 PER RECIPIENT, WITH ANYTHING ABOVE $32 BEING SUPPLIED BY THE
STATE.  /4/  HOWEVER, THE FEDERAL GOVERNMENT PROVIDES A MAXIMUM OF $22
FOR EVERY DEPENDENT CHILD, ALTHOUGH NONE OF THAT AMOUNT IS RECEIVED BY
THE NEEDY FAMILY IN THE CASE OF THE FIFTH OR SIXTH AND SUCCEEDING
CHILDREN.  THE EFFECT IS TO SHIFT A GREATER PROPORTION OF THE SUPPORT
OF LARGE FAMILIES FROM THE STATE TO THE FEDERAL GOVERNMENT AS THE
FAMILY SIZE INCREASES.  INDEED, IF THE SIZE OF THE FAMILY SHOULD EXCEED
11, THE STATE WOULD SUCCEED IN TRANSFERRING THE ENTIRE SUPPORT BURDEN
FOR THE FAMILY TO THE FEDERAL GOVERNMENT, AND EVEN MAKE A "PROFIT" IN
THE SENSE THAT IT WOULD RECEIVE MORE FROM THE FEDERAL GOVERNMENT WITH
RESPECT TO THE FAMILY THAN THE $250 MAXIMUM THAT IS ACTUALLY PAID TO
THAT FAMILY.  IT IS IMPOSSIBLE TO CONCLUDE THAT CONGRESS INTENDED SO
INCONGRUOUS A RESULT.  ON THE CONTRARY, WHEN CONGRESS UNDERTOOK TO
SUBSIDIZE PAYMENTS ON BEHALF OF EACH RECIPIENT-- INCLUDING EACH
DEPENDENT CHILD-- IT SEEMS CLEAR THAT CONGRESS INTENDED EACH NEEDY
DEPENDENT CHILD TO RECEIVE THE USE AND BENEFIT OF AT LEAST THE
INCREMENTAL AMOUNT OF THE FEDERAL SUBSIDY PAID ON HIS ACCOUNT. 

A SECOND EFFECT OF THE MAXIMUM FAMILY GRANT REGULATION FURTHER
DEMONSTRATES ITS INCONSISTENCY WITH THE FEDERAL PROGRAM.  AS
ADMINISTERED IN MARYLAND, THE REGULATION SERVES TO PROVIDE A STRONG
ECONOMIC INCENTIVE TO THE DISINTEGRATION OF LARGE FAMILIES.  THIS IS SO
BECAUSE A FAMILY SUBJECT TO THE MAXIMUM REGULATION CAN, MERELY BY
PLACING THE INELIGIBLE CHILDREN IN THE HOMES OF OTHER RELATIVES,
RECEIVE ADDITIONAL MONTHLY PAYMENTS FOR THE SUPPORT OF THESE ADDITIONAL
DEPENDENT CHILDREN.  /5/  WHEN FAMILIES ARE RECEIVING SUPPORT THAT IS
CONCEDEDLY FAR BELOW THEIR BARE MINIMUM SUBSISTENCE NEEDS, THE ECONOMIC
INCENTIVE THAT THE MAXIMUM GRANT REGULATION PROVIDES TO DIVIDE UP LARGE
FAMILIES CAN HARDLY BE VIEWED AS SPECULATIVE OR NEGLIGIBLE.  THE
OPINION OF THIS COURT DOES NOT EVEN DISPUTE THIS EFFECT.  /6/  THE
COURT ANSWERS BY SAYING THAT THE FMAILY RELATIONSHIP "MAY BE ATTENUATED
BUT IT CANNOT BE DESTROYED."  YET IT WAS JUST THIS KIND OF ATTENUATION
THAT, AS THE LEGISLATIVE HISTORY CONCLUSIVELY DEMONSTRATES, /7/
CONGRESS WAS CONCERNED WITH ELIMINATING IN ESTABLISHING THE AFDC
PROGRAM.  THE COURT'S RATIONALE TAKES A LONG STEP BACKWARDS TOWARD THE
TIME WHEN PERSONS WERE DEPENDENT UPON THE CHARITY OF THEIR RELATIVES--
THE VERY SITUATION MEANT TO BE REMEDIED BY AFDC. 

DESPITE ITS DENIAL OF THE PRINCIPLE THAT PAYMENTS SHOULD BE MADE
WITH REGARD TO ALL ELIGIBLE INDIVIDUALS AND ITS CONFLICT WITH THE BASIC
PURPOSES OF THE ACT, THE MARYLAND REGULATION IS NEVERTHELESS FOUND BY
THE COURT TO BE CONSISTENT WITH THE FEDERAL LAW BECAUSE THE EXISTENCE
OF SUCH REGULATIONS HAS BEEN RECOGNIZED BY CONGRESS.  TO BOLSTER THIS
VEIW, THE COURT ARGUES THAT THE SAME CONCLUSION HAS BEEN REACHED BY THE
DEPARTMENT CHARGED WITH ADMINISTERING THE ACT.  ON NEITHER SCORE IS THE
COURT CONVINCING. 

WITH REGARD TO THE POSITION OF THE SECRETARY OF HEW, ABOUT ALL THAT
CAN BE SAID WITH CONFIDENCE IS THAT WE DO NOT KNOW HIS VIEWS ON THE
VALIDITY OF FAMILY MAXIMUM REGULATIONS WITHIN THE FEDERAL STRUCTURE. 
/8/  THE REASON IS SIMPLE-- HE HAS NOT BEEN ASKED.  THUS, CONTRARY TO
OUR ADMONITION GIVEN TODAY TO THE DISTRICT COURTS IN CONSIDERING CASES
IN THIS AREA, THAT WHENEVER POSSIBLE THEY "SHOULD OBTAIN THE VIEWS OF
HEW IN THOSE CASES WHERE IT HAS NOT SET FORTH ITS VIEWS," ROSADO V.
WYMAN, ANTE, AT 407, THE GOVERNMENT WAS NOT INVITED TO FILE A BRIEF IN
THIS CASE.  PERHAPS THE REASON IS THAT THIS COURT IS FULLY VERSED IN
THE COMPLEXITIES OF THE FEDERAL AFDC PROGRAM.  I AM DUBIOUS, HOWEVER,
WHEN THE COURT EXPLICITLY RELIES ON THE FAILURE OF THE SECRETARY TO
DISAPPROVE THE MARYLAND WELFARE SCHEME.  FOR IF ANYTHING AT ALL IS
COMPLETELY CLEAR IN THIS AREA OF THE LAW IT IS THAT THE FAILURE OF HEW
TO CUT OFF FUNDS FROM A STATE PROGRAM HAS NO MEANING AT ALL.  SEE
ROSADO V. WYMAN, SUPRA, AT 426 (DOUGLAS, J., CONCURRING). 

FINALLY, THE COURT TELLS US THAT CONGRESS HAS SAID THAT THE ACT
PERMITS MAXIMUM GRANT REGULATIONS.  IF IT HAD, THIS PART OF THE CASE
WOULD BE OBVIOUS; BUT, OF COURSE, IT HAS NOT.  THERE IS NO INDICATION
CONGRESS HAS FOCUSED ON THE FAMILY MAXIMUM AS OPPOSED TO INDIVIDUAL OR
OTHER MAXIMUMS OR COMBINATIONS OF SUCH LIMITING DEVICES.  /9/  AND, TO
THE EXTENT THAT IT COULD BE SAID TO HAVE DONE SO, AS MY BROTHER DOUGLAS
FULLY DEMONSTRATES, IT WAS IN THE CONTEXT OF DISAPPROVING ALL MAXIMUMS
AND AMELIORATING THE HARSHNESS OF THEIR EFFECTS.  SEE ALSO ROSADO V.
WYMAN, SUPRA, AT 413-414.  THESE SLENDER THREADS OF LEGISLATIVE COMMENT
SIMPLY CANNOT BE WOVEN INTO A CONCLUSION OF LEGISLATIVE SANCTION.  CF.
SHAPIRO V. THOMPSON, 394 U.S. 618, 638-640 (1969).  FURTHERMORE, IT IS
FUNDAMENTAL THAT IN CONSTRUING LEGISLATION, "WE MUST NOT BE GUIDED BY A
SINGLE SENTENCE OR MEMBER OF A SENTENCE, BUT (SHOULD) LOOK TO THE
PROVISIONS OF THE WHOLE LAW, AND TO ITS OBJECT AND POLICY."  RICHARDS
V. UNITED STATES, 369 U.S. 1, 11 (1962).  WE CONCLUDED IN KING V.
SMITH, SUPRA, AFTER AN EXTENSIVE REVIEW OF THE AFDC PROGRAM, THAT
CONGRESS "INTENDED TO PROVIDE PROGRAMS FOR THE ECONOMIC SECURITY AND
PROTECTION OF ALL CHILDREN" AND DID NOT INTEND "ARBITRARILY TO LEAVE
ONE CLASS OF DESTITUTE CHILDREN ENTIRELY WITHOUT MEANINGFUL
PROTECTION."  392 U.S.,AT 330.  THAT REASONING IS LIKEWISE APPLICABLE
TO THE INSTANT CASE, IN WHICH THE MAXIMUM GRANT REGULATION EXCLUDES
CONSIDERATION OF THE NEEDS OF A CERTAIN CLASS OF DEPENDENT CHILDREN IN
LARGE FAMILIES.  IT IS APPARENT, THEREFORE, THAT MARYLAND'S MAXIMUM
GRANT REGULATION IS NOT CONSISTENT WITH THE SOCIAL SECURITY ACT, AND
HENCE APPELLEES WERE ENTITLED TO THE INJUNCTION THEY OBTAINED AGAINST
ITS OPERATION. 

        II 

HAVING DECIDED THAT THE INJUNCTION ISSUED BY THE DISTRICT COURT WAS
PROPER AS A MATTER OF STATUTORY CONSTRUCTION, I WOULD AFFIRM ON THAT
GROUND ALONE.  HOWEVER, THE MAJORITY HAS OF NECESSITY PASSED ON THE
CONSTITUTIONAL ISSUES.  I BELIEVE THAT IN OVERRULING THE DECISION OF
THIS AND EVERY OTHER DISTRICT COURT THAT HAS PASSED ON THE VALIDITY OF
THE MAXIMUM GRANT DEVICE, /10/  THE COURT BOTH REACHES THE WRONG RESULT
AND LAYS DOWN AN INSUPPORTABLE TEST FOR DETERMINING WHETHER A STATE HAS
DENIED ITS CITIZENS THE EQUAL PROTECTION OF THE LAWS. 

THE MARYLAND AFDC PROGRAM IN ITS BASIC STRUCTURE OPERATES UNIFORMLY
WITH REGARD TO ALL NEEDY CHILDREN BY TAKING INTO ACCOUNT THE BASIC
SUBSISTENCE NEEDS OF ALL ELIGIBLE INDIVIDUALS IN THE FORMULATION OF THE
STANDARDS OF NEED FOR FAMILIES OF VARIOUS SIZES.  HOWEVER, SUPERIMPOSED
UPON THIS UNIFORM SYSTEM IS THE MAXIMUM GRANT REGULATION, THE OPERATIVE
EFFECT OF WHICH IS TO CREATE TWO CLASSES OF NEEDY CHILDREN AND TWO
CLASSES OF ELIGIBLE FAMILIES:  THOSE SMALL FAMILIES AND THEIR MEMBERS
WHO RECEIVE PAYMENTS TO COVER THEIR SUBSISTENCE NEEDS AND THOSE LARGE
FAMILIES WHO DO NOT.  /11/ 

THIS CLASSIFICATION PROCESS EFFECTED BY THE MAXIMUM GRANT REGULATION
PRODUCES A BASIC DENIAL OF EQUAL TREATMENT.  PERSONS WHO ARE CONCEDEDLY
SIMILARLY SITUATED (DEPENDENT CHILDREN AND THEIR FAMILIES), ARE NOT
AFFORDED EQUAL, OR EVEN APPROXIMATELY EQUAL, TREATMENT UNDER THE
MAXIMUM GRANT REGULATION.  SUBSISTENCE BENEFITS ARE PAID WITH RESPECT
TO SOME NEEDY DEPENDENT CHILDREN; NOTHING IS PAID WITH RESPECT TO
OTHERS.  SOME NEEDY FAMILIES RECEIVE FULL SUBSISTENCE ASSISTANCE AS
CALCULATED BY THE STATE; THE ASSISTANCE PAID TO OTHER FAMILIES IS
GROSSLY BELOW THEIR SIMILARLY CALCULATED NEEDS. 

YET, AS A GENERAL PRINCIPLE, INDIVIDUALS SHOULD NOT BE AFFORDED
DIFFERENT TREATMENT BY THE STATE UNLESS THERE IS A RELEVANT DISTINCTION
BETWEEN THEM, AND "A STATUTORY DISCRIMINATION MUST BE BASED ON
DIFFERENCES THAT ARE REASONABLY RELATED TO THE PURPOSES OF THE ACT IN
WHICH IT IS FOUND."  MOREY V. DOUD, 354 U.S. 457 (1957).  SEE GULF,
COLORADO & SANTA FE R. CO. V. ELLIS, 165 U.S. 150, 155 (1897). 
CONSEQUENTLY, THE STATE MAY NOT, IN THE PROVISION OF IMPORTANT SERVICES
OR THE DISTRIBUTION OF GOVERNMENTAL PAYMENTS, SUPPLY BENEFITS TO SOME
INDIVIDUALS WHILE DENYING THEM TO OTHERS WHO ARE SIMILARLY SITUATED. 
SEE, E.G., GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, 377
U.S. 218 (1964).     IN THE INSTANT CASE, THE ONLY DISTINCTION BETWEEN
THOSE CHILDREN WITH RESPECT TO WHOM ASSISTANCE IS GRANTED AND THOSE
CHILDREN WHO ARE DENIED SUCH ASSISTANCE IS THE SIZE OF THE FAMILY INTO
WHICH THE CHILD PERMITS HIMSELF TO BE BORN.  THE CLASS OF INDIVIDUALS
WITH RESPECT TO WHOM PAYMENTS ARE ACTUALLY MADE (THE FIRST FOUR OR FIVE
ELIGIBLE DEPENDENT CHILDREN IN A FAMILY), IS GROSSLY UNDERINCLUSIVE IN
TERMS OF THE CLASS THAT THE AFDC PROGRAM WAS DESIGNED TO ASSIST,
NAMELY, ALL NEEDY DEPENDENT CHILDREN.  SUCH UNDERINCLUSIVENESS
MANIFESTS "A PRIMA FACIE VIOLATION OF THE EQUAL PROTECTION REQUIREMENT
OF REASONABLE CLASSIFICATION,"  /12/  COMPELLING THE STATE TO COME
FORWARD WITH A PERSUASIVE JUSTIFICATION FOR THE CLASSIFICATION. 

THE COURT NEVER UNDERTAKES TO INQUIRE FOR SUCH A JUSTIFICATION;
RATHER IT AVOIDS THE TASK BY FOCUSING UPON THE ABSTRACT DICHOTOMY
BETWEEN TWO DIFFERENT APPROACHES TO EQUAL PROTECTION PROBLEMS THAT HAVE
BEEN UTILIZED BY THIS COURT. 

UNDER THE SO-CALLED "TRADITIONAL TEST," A CLASSIFICATION IS SAID TO
BE PERMISSIBLE UNDER THE EQUAL PROTECTION CLAUSE UNLESS IT IS "WITHOUT
ANY REASONABLE BASIS."  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S.
61, 78 (1911).  /13/  ON THE OTHER HAND, IF THE CLASSIFICATION AFFECTS
A "FUNDAMENTAL RIGHT,"  THEN THE STATE INTEREST IN PERPETUATING THE
CLASSIFICATION MUST BE "COMPELLING" IN ORDER TO BE SUSTAINED.  SEE,
E.G., SHAPIRO V. THOMPSON, SUPRA; HARPER V. BOARD OF ELECTIONS, 383
U.S. 663 (1966); MCLAUGHLIN V. FLORIDA, 379 U.S. 184 (1964). 

THIS CASE SIMPLY DEFIES EASY CHARACTERIZATION IN TERMS OF ONE OR THE
OTHER OF THESE "TESTS."  THE CASES RELIED ON BY THE COURT, IN WHICH A
"MERE RATIONALITY" TEST WAS ACTUALLY USED, E.G., WILLIAMSON V. LEE
OPTICAL CO., 348 U.S. 483 (1955), ARE MOST ACCURATELY DESCRIBED AS
INVOLVING THE APPLICATION OF EQUAL PROTECTION REASONING TO THE
REGULATION OF BUSINESS INTERESTS.  THE EXTREMES TO WHICH THE COURT HAS
GONE IN DREAMING UP RATIONAL BASES FOR STATE REGULATION IN THAT AREA
MAY IN MANY INSTANCES BE ASCRIBED TO A HEALTHY REVULSION FROM THE
COURT'S EARLIER EXCESSES IN USING THE CONSTITUTION TO PROTECT INTERESTS
THAT HAVE MORE THAN ENOUGH POWER TO PROTECT THEMSELVES IN THE
LEGISLATIVE HALLS.  THIS CASE, INVOLVING THE LITERALLY VITAL INTERESTS
OF A POWERLESS MINORITY-- POOR FAMILIES WITHOUT BREADWINNERS-- IS FAR
REMOVED FROM THE AREA OF BUSINESS REGULATION, AS THE COURT CONCEDES. 
WHY THEN IS THE STANDARD USED IN THOSE CASES IMPOSED HERE?  WE ARE TOLD
NO MORE THAN THAT THIS CASE FALLS IN "THE AREA OF ECONOMICS AND SOCIAL
WELFARE," WITH THE IMPLICATION THAT FROM THERE THE ANSWER IS OBVIOUS. 

IN MY VIEW, EQUAL PROTECTION ANALYSIS OF THIS CASE IS NOT
APPRECIABLY ADVANCED BY THE A PRIORI DEFINITION OF A "RIGHT,"
FUNDAMENTAL OR OTHERWISE.  /14/  RATHER, CONCENTRATION MUST BE PLACED
UPON THE CHARACTER OF THE CLASSIFICATION IN QUESTION, THE RELATIVE
IMPORTANCE TO INDIVIDUALS IN THE CLASS DISCRIMINATED AGAINST OF THE
GOVERNMENTAL BENEFITS THAT THEY DO NOT RECEIVE, AND THE ASSERTED STATE
INTERESTS IN SUPPORT OF THE CLASSIFICATION.  AS WE SAID ONLY RECENTLY,
"IN DETERMINING WHETHER OR NOT A STATE LAW VIOLATES THE EQUAL
PROTECTION CLAUSE, WE MUST CONSIDER THE FACTS AND CIRCUMSTANCES BEHIND
THE LAW, THE INTERESTS WHICH THE STATE CLAIMS TO BE PROTECTING, AND THE
INTERESTS OF THOSE WHO ARE DISADVANTAGED BY THE CLASSIFICATION." 
KRAMER V. UNION SCHOOL DISTRICT, 395 U.S. 621, 626 (1969), QUOTING
WILLIAMS V. RHODES, 393 U.S. 23, 30 (1968).  /15/ 

IT IS THE INDIVIDUAL INTERESTS HERE AT STAKE THAT, AS THE COURT
CONCEDES, MOST CLEARLY DISTINGUISH THIS CASE FROM THE "BUSINESS
REGULATION" EQUAL PROTECTION CASES.  AFDC SUPPORT TO NEEDY DEPENDENT
CHILDREN PROVIDES THE STUFF THAT SUSTAINS THOSE CHILDREN'S LIVES:
FOOD, CLOTHING, SHELTER.  /16/  AND THIS COURT HAS ALREADY RECOGNIZED
SEVERAL TIMES THAT WHEN A BENEFIT, EVEN A "GRATUITOUS" BENEFIT, IS
NECESSARY TO SUSTAIN LIFE, STRICTER CONSTITUTIONAL STANDARDS, BOTH
PROCEDURAL /17/  AND SUBSTANTIVE, /18/  ARE APPLIED TO THE DEPRIVATION
OF THAT BENEFIT. 

NOR IS THE DISTINCTION UPON WHICH THE DEPRIVATION IS HERE BASED--
THE DISTINCTION BETWEEN LARGE AND SMALL FAMILIES-- ONE THAT READILY
COMMENDS ITSELF AS A BASIS FOR DETERMINING WHICH CHILDREN ARE TO HAVE
SUPPORT APPROXIMATING SUBSISTENCE AND WHICH ARE NOT.  INDEED,
GOVERNMENTAL DISCRIMINATION BETWEEN CHILDREN ON THE BASIS OF A FACTOR
OVER WHICH THEY HAVE NO CONTROL-- THE NUMBER OF THEIR BROTHERS AND
SISTERS-- BEARS SOME RESEMBLANCE TO THE CLASSIFICATION BETWEEN
LEGITIMATE AND ILLEGITIMATE CHILDREN WHICH WE CONDEMNED AS A VIOLATION
OF THE EQUAL PROTECTION CLAUSE IN LEVY V. LOUISIANA, 391 U.S. 68
(1968). 

THE ASSERTED STATE INTERESTS IN THE MAINTENANCE OF THE MAXIMUM GRANT
REGULATION, ON THE OTHER HAND, ARE HARDLY CLEAR.  IN THE EARLY STAGES
OF THIS LITIGATION, THE STATE ATTEMPTED TO RATIONALIZE THE MAXIMUM
GRANT REGULATION ON THE THEORY THAT IT WAS MERELY A DEVICE TO CONSERVE
STATE FUNDS, IN THE LANGUAGE OF THE MOTION TO DISMISS, "A LEGITIMATE
WAY OF ALLOCATING THE STATE'S LIMITED RESOURCES AVAILABLE FOR AFDC
ASSISTANCE."  INDEED, THE INITIAL OPINION OF THE DISTRICT COURT
CONCLUDED THAT THE SOLE REASON FOR THE REGULATION, AS REVEALED BY THE
RECORD, WAS "TO FIT THE TOTAL NEEDS OF THE STATE'S DEPENDENT CHILDREN,
AS MEASURED BY THE STATE'S STANDARDS OF THEIR SUBSISTENCE REQUIREMENTS,
INTO AN INADEQUATE STATE APPROPRIATION."  297 F.SUPP.,AT 458.  THE
DISTRICT COURT QUITE PROPERLY REJECTED THIS ASSERTED JUSTIFICATION, FOR
"(THE SAVING OF WELFARE COSTS CANNOT JUSTIFY AN OTHERWISE INVIDIOUS
CLASSIFICATION."  SHAPIRO V. THOMPSON, SUPRA, AT 633.  SEE GOLDBERG V.
KELLY, ANTE, AT 266. 

IN POST-TRIAL PROCEEDINGS IN THE DISTRICT COURT, AND IN BRIEFS TO
THIS COURT, THE STATE APPARENTLY ABANDONED RELIANCE ON THE FISCAL
JUSTIFICATION.  IN ITS PLACE, THERE HAVE NOW APPEARED SEVERAL DIFFERENT
RATIONALES FOR THE MAXIMUM GRANT REGULATION, PROMINENT AMONG THEM BEING
THOSE RELIED UPON BY THE MAJORITY-- THE NOTIONS THAT IMPOSITION OF THE
MAXIMUM SERVES AS AN INCENTIVE TO WELFARE RECIPIENTS TO FIND AND
MAINTAIN EMPLOYMENT AND PROVIDES A SEMBLANCE OF EQUALITY WITH PERSONS
EARNING A MINIMUM WAGE. 

WITH REGARD TO THE LATTER, MARYLAND HAS URGED THAT THE MAXIMUM GRANT
REGULATION SERVES TO MAINTAIN A ROUGH EQUALITY BETWEEN WAGE EARNING
FAMILIES AND AFDC FAMILIES, THEREBY INCREASING THE POLITICAL SUPPORT
FOR-- OR PERHAPS REDUCING THE OPPOSITION TO-- THE AFDC PROGRAM.  IT IS
QUESTIONABLE WHETHER THE COURT REALLY RELIES ON THIS GROUND, ESPECIALLY
WHEN IN MANY STATES THE PRESCRIBED FAMILY MAXIMUM BEARS NO SUCH
RELATION TO THE MINIMUM WAGE.  /19/  BUT THE COURT DOES NOT INDICATE
THAT A DIFFERENT RESULT MIGHT OBTAIN IN OTHER CASES.  INDEED, WHETHER
ELIMINATION OF THE MAXIMUM WOULD PRODUCE WELFARE INCOMES OUT OF LINE
WITH OTHER INCOMES IN MARYLAND IS ITSELF OPEN TO QUESTION ON THIS
RECORD.  /20/  IT IS TRUE THAT GOVERNMENT IN THE UNITED STATES, UNLIKE
CERTAIN OTHER COUNTRIES, HAS NOT CHOSEN TO MAKE PUBLIC AID AVAILABLE TO
ASSIST FAMILIES GENERALLY IN RAISING THEIR CHILDREN.  RATHER, IN THIS
CASE MARYLAND, WITH THE ENCOURAGEMENT AND ASSISTANCE OF THE FEDERAL
GOVERNMENT, HAS ELECTED TO PROVIDE ASSISTANCE AT A SUBSISTENCE LEVEL
FOR THOSE IN PARTICULAR NEED-- THE AGED, THE BLIND, THE INFIRM, AND THE
UNEMPLOYED AND UNEMPLOYABLE, AND THEIR CHILDREN.  THE ONLY QUESTION
PRESENTED HERE IS WHETHER, HAVING ONCE UNDERTAKEN SUCH A PROGRAM, THE
STATE MAY ARBITRARILY SELECT FROM AMONG THE CONCEDEDLY ELIGIBLE THOSE
TO WHOM IT WILL PROVIDE BENEFITS.  AND IT IS TOO LATE TO ARGUE THAT
POLITICAL EXPEDIENCY WILL SUSTAIN DISCRIMINATION NOT OTHERWISE
SUPPORTABLE.  CF. COOPER V. AARON, 358 U.S. 1 (1958). 

VITAL TO THE EMPLOYMENT-INCENTIVE BASIS FOUND BY THE COURT TO
SUSTAIN THE REGULATION IS, OF COURSE, THE SUPPOSITION THAT AN
APPRECIABLE NUMBER OF AFDC RECIPIENTS ARE IN FACT EMPLOYABLE.  FOR IT
IS PERFECTLY OBVIOUS THAT LIMITATIONS UPON ASSISTANCE CANNOT REASONABLY
OPERATE AS A WORK INCENTIVE WITH REGARD TO THOSE WHO CANNOT WORK OR WHO
CANNOT BE EXPECTED TO WORK.  IN THIS CONNECTION, MARYLAND CANDIDLY
NOTES THAT "ONLY A VERY SMALL PERCENTAGE OF THE TOTAL UNIVERSE OF
WELFARE RECIPIENTS ARE EMPLOYABLE."  THE STATE, HOWEVER, URGES US TO
IGNORE THE "TOTAL UNIVERSE" AND TO CONCENTRATE ATTENTION INSTEAD UPON
THE HEADS OF AFDC FAMILIES.  YET THE VERY PURPOSE OF THE AFDC PROGRAM
SINCE ITS INCEPTION HAS BEEN TO PROVIDE ASSISTANCE FOR DEPENDENT
CHILDREN.  THE STATE'S POSITION IS THUS THAT THE STATE MAY DEPRIVE
CERTAIN NEEDY CHILDREN OF ASSISTANCE TO WHICH THEY WOULD OTHERWISE BE
ENTITLED IN ORDER TO PROVIDE AN ARGUABLE WORK INCENTIVE FOR THEIR
PARENTS.  BUT THE STATE MAY NOT WIELD ITS ECONOMIC WHIP IN THIS FASHION
WHEN THE EFFECT IS TO CAUSE A DEPRIVATION TO NEEDY DEPENDENT CHILDREN
IN ORDER TO CORRECT AN ARGUABLE FAULT OF THEIR PARENTS.  CF. LEVY V.
LOUISIANA, SUPRA; KING V. SMITH, SUPRA, AT 334-336 (DOUGLAS, J.,
CONCURRING); DOE V. SHAPIRO, 302 F.SUPP.  761 (D.C. CONN. 1969), APPEAL
DISMISSED, 396 U.S. 488 (1970). 

EVEN IF THE INVITATION OF THE STATE TO FOCUS UPON THE HEADS OF AFDC
FAMILIES IS ACCEPTED, THE MINIMUM RATIONALITY OF THE MAXIMUM GRANT
REGULATION IS HARD TO DISCERN.  THE DISTRICT COURT FOUND THAT OF
MARYLAND'S MORE THAN 32,000 AFDC FAMILIES, ONLY ABOUT 116 COULD BE
CLASSIFIED AS HAVING EMPLOYABLE MEMBERS, AND, OF THESE, THE NUMBER TO
WHICH THE MAXIMUM GRANT REGULATION WAS APPLICABLE IS NOT DISCLOSED BY
THE RECORD.  THE STATE OBJECTS THAT THIS FIGURE INCLUDES ONLY FAMILIES
IN WHICH THE FATHER IS UNEMPLOYED AND FAILS TO TAKE ACCOUNT OF FAMILIES
IN WHICH AN EMPLOYABLE MOTHER IS THE HEAD OF THE HOUSEHOLD.  AT THE
SAME TIME, HOWEVER, THE STATE ITSELF HAS RECOGNIZED THAT THE VAST
PROPORTION OF THESE MOTHERS ARE IN FACT UNEMPLOYABLE BECAUSE THEY ARE
MENTALLY OR PHYSICALLY INCAPACITATED, BECAUSE THEY HAVE NO MARKETABLE
SKILLS, OR, MOST PROMINENTLY, BECAUSE THE BEST INTERESTS OF THE
CHILDREN DICTATE THAT THE MOTHER REMAIN IN THE HOME.  /21/  THUS, IT IS
CLEAR, ALTHOUGH THE RECORD DOES NOT DISCLOSE PRECISE FIGURES, THAT THE
TOTAL NUMBER OF "EMPLOYABLE" MOTHERS IS BUT A FRACTION OF THE TOTAL
NUMBER OF AFDC MOTHERS.  FURTHERMORE, THE RECORD IS SILENT AS TO WHAT
PROPORTION OF LARGE FAMILIES SUBJECT TO THE MAXIMUM HAVE "EMPLOYABLE"
MOTHERS.  INDEED, ONE MUST ASSUME THAT THE PRESENCE OF THE MOTHER IN
THE HOME CAN BE LESS EASILY DISPENSED WITH IN THE CASE OF LARGE
FAMILIES, PARTICULARLY WHERE SMALL CHILDREN ARE INVOLVED AND
ALTERNATIVE PROVISIONS FOR THEIR CARE ARE ACCORDINGLY MORE DIFFICULT TO
ARRANGE.  IN SHORT, NOT ONLY HAS THE STATE FAILED TO ESTABLISH THAT
THERE IS A SUBSTANTIAL OR EVEN A SIGNIFICANT PROPORTION OF AFDC HEADS
OF HOUSEHOLDS AS TO WHOM THE MAXIMUM GRANT REGULATION ARGUABLY SERVES
AS A VIABLE AND LOGICAL WORK INCENTIVE, BUT IT IS ALSO INDISPUTABLE
THAT THE REGULATION AT BEST IS DRASTICALLY OVERINCLUSIVE SINCE IT
APPLIES WITH EQUAL VIGOR TO A VERY SUBSTANTIAL NUMBER OF PERSONS WHO
LIKE APPELLEES ARE COMPLETELY DISABLED FROM WORKING. 

FINALLY, IT SHOULD BE NOTED THAT, TO THE EXTENT THERE IS A
LEGITIMATE STATE INTEREST IN ENCOURAGING HEADS OF AFDC HOUSEHOLDS TO
FIND EMPLOYMENT, APPLICATION OF THE MAXIMUM GRANT REGULATION IS ALSO
GROSSLY UNDERINCLUSIVE BECAUSE IT SINGLES OUT AND AFFECTS ONLY LARGE
FAMILIES.  NO REASON IS SUGGESTED WHY THIS PARTICULAR GROUP SHOULD BE
CARVED OUT FOR THE PURPOSE OF HAVING UNUSUALLY HARSH "WORK INCENTIVES"
IMPOSED UPON THEM.  NOT ONLY HAS THE STATE SELECTED FOR SPECIAL
TREATMENT A SMALL GROUP FROM AMONG SIMILARLY SITUATED FAMILIES, BUT IT
HAD DONE SO ON A BASIS-- FAMILY SIZE-- THAT BEARS NO RELATION TO THE
EVIL THAT THE STATE CLAIMS THE REGULATION WAS DESIGNED TO CORRECT. 
THERE IS SIMPLY NO INDICATION WHATEVER THAT HEADS OF LARGE FAMILIES, AS
OPPOSED TO HEADS OF SMALL FAMILIES, ARE PARTICULARLY PRONE TO REFUSE TO
SEEK OR TO MAINTAIN EMPLOYMENT 

THE STATE HAS PRESENTED OTHER ARGUMENTS TO SUPPORT THE REGULATION. 
HOWEVER, THEY ARE NOT DEALT WITH SPECIFICALLY BY THE COURT, AND THE
REASON IS NOT DIFFICULT TO DISCERN.  THE COURT HAS PICKED THE STRONGEST
AVAILABLE; THE OTHERS SUFFER FROM SIMILAR AND GREATER DEFECTS.  /22/
MOREOVER, IT IS RELEVANT TO NOTE THAT BOTH CONGRESS AND THE STATE HAVE
ADOPTED OTHER MEASURES THAT DEAL SPECIFICALLY WITH EXACTLY THOSE
INTERESTS THE STATE CONTENDS ARE ADVANCED BY THE MAXIMUM GRANT
REGULATION.  THUS, FOR EXAMPLE, EMPLOYABLE AFDC RECIPIENTS ARE REQUIRED
TO SEEK EMPLOYMENT THROUGH THE CONGRESSIONALLY ESTABLISHED WORK
INCENTIVE PROGRAM WHICH PROVIDES AN ELABORATE SYSTEM OF COUNSELING,
TRAINING, AND INCENTIVE PAYMENTS FOR HEADS OF AFDC FAMILIES.  SEE
GENERALLY 42 U.S.C. 630-644 (1964 ED., SUPP. IV).  /23/  THE EXISTENCE
OF THESE ALTERNATIVES DOES NOT, OF COURSE, CONCLUSIVELY ESTABLISH THE
INVALIDITY OF THE MAXIMUM GRANT REGULATION.  IT IS CERTAINLY RELEVANT,
HOWEVER, IN APPRAISING THE OVERALL INTEREST OF THE STATE IN THE
MAINTENANCE OF THE REGULATION. 

IN THE FINAL ANALYSIS, MARYLAND HAS SET UP AN AFDC PROGRAM
STRUCTURED TO CALCULATE AND PAY THE MINIMUM STANDARD OF NEED TO
DEPENDENT CHILDREN.  HAVING SET UP THAT PROGRAM, HOWEVER, THE STATE
DENIES SOME OF THOSE NEEDY CHILDREN THE MINIMUM SUBSISTENCE STANDARD OF
LIVING, AND IT DOES SO ON THE WHOLLY ARBITRARY BASIS THAT THEY HAPPEN
TO BE MEMBERS OF LARGE FAMILIES.  ONE NEED NOT SPECULATE TOO FAR ON THE
ACTUAL REASON FOR THE REGULATION, FOR IN THE EARLY STAGES OF THIS
LITIGATION THE STATE VIRTUALLY CONCEDED THAT IT SET OUT TO LIMIT THE
TOTAL COST OF THE PROGRAM ALONG THE PATH OF LEAST RESISTANCE.  NOW,
HOWEVER, WE ARE TOLD THAT OTHER RATIONALES CAN BE MANUFACTURED TO
SUPPORT THE REGULATION AND TO SUSTAIN IT AGAINST A FUNDAMENTAL
CONSTITUTIONAL CHALLENGE. 

HOWEVER, THESE ASSERTED STATE INTERESTS, WHICH ARE NOT INSIGNIFICANT
IN THEMSELVES, ARE ADVANCED EITHER NOT AT ALL OR BY COMPLETE ACCIDENT
BY THE MAXIMUM GRANT REGULATION.  CLEARLY THEY COULD BE SERVED BY
MEASURES FAR LESS DESTRUCTIVE OF THE INDIVIDUAL INTERESTS AT STAKE. 
MOREOVER, THE DEVICE ASSERTEDLY CHOSEN TO FURTHER THEM IS AT ONE AND
THE SAME TIME BOTH GROSSLY UNDERINCLUSVIE-- BECAUSE IT DOES NOT APPLY
AT ALL TO A MUCH LARGER CLASS IN AN EQUAL POSITION-- AND GROSSLY
OVERINCLUSVIE-- BECAUSE IT APPLIES SO STRONGLY AGAINST A SUBSTANTIAL
CLASS AS TO WHICH IT CAN RATIONALLY SERVE NO END.  WERE THIS A CASE OF
PURE BUSINESS REGULATION, THESE DEFECTS WOULD PLACE IT BEYOND WHAT HAS
HERETOFORE SEEMED A BORDERLINE CASE, SEE, E.G., RAILWAY EXPRESS AGENCY
V. NEW YORK, 336 U.S. 106 (1949), AND I DO NOT BELIEVE THAT THE
REGULATION CAN BE SUSTAINED EVEN UNDER THE COURT'S "REASONABLENESS"
TEST.     IN ANY EVENT, IT CANNOT SUFFICE MERELY TO INVOKE THE SPECTRE
OF THE PAST AND TO RECITE FROM LINDSLEY V. NATURAL CARBONIC GAS CO. AND
WILLIAMSON V. LEE OPTICAL CO. TO DECIDE THE CASE.  APPELLEES ARE NOT A
GAS COMPANY OR AN OPTICAL DISPENSER; THEY ARE NEEDY DEPENDENT CHILDREN
AND FAMILIES WHO ARE DISCRIMINATED AGAINST BY THE STATE.  THE BASIS OF
THAT DISCRIMINATION-- THE CLASSIFICATION OF INDIVIDUALS INTO LARGE AND
SMALL FAMILIES-- IS TOO ARBITRARY AND TOO UNCONNECTED TO THE ASSERTED
RATIONALE, THE IMPACT ON THOSE DISCRIMINATED AGAINST-- THE DENIAL OF
EVEN A SUBSISTENCE EXISTENCE-- TOO GREAT, AND THE SUPPOSED INTERESTS
SERVED TOO CONTRIVED AND ATTENUATED TO MEET THE REQUIREMENTS OF THE
CONSTITUTION.  IN MY VIEW MARYLAND'S MAXIMUM GRANT REGULATION IS
INVALID UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

/1/  THE COURT IS THUS WRONG IN SPEAKING OF "THE GREATER ABILITY OF
LARGE FAMILIES-- BECAUSE OF THE INHERENT ECONOMIES OF SCALE-- TO
ACCOMMODATE THEIR NEEDS TO DIMINISHED PER CAPITA PAYMENTS."  THOSE
ECONOMIES HAVE ALREADY BEEN TAKEN INTO ACCOUNT ONCE IN CALCULATING THE
STANDARD OF NEED.  INDEED, IT BORDERS ON THE LUDICROUS TO SUGGEST THAT
A LARGE FAMILY IS MORE CAPABLE OF LIVING ON PERHAPS 50% OF ITS STANDARD
OF NEED THAN A SMALL FAMILY IS ON 95%. 

/2/  BECAUSE OF MINOR VARIATIONS IN THE CALCULATION OF THE
SUBSISTENCE NEEDS OF PARTICULAR FAMILIES, AND BECAUSE THE MAXIMUM GRANT
VARIES BETWEEN $240 AND $250 PER MONTH, DEPENDING UPON THE COUNTY IN
WHICH A PARTICULAR FAMILY RESIDES, THE CUTOFF POINT BETWEEN FAMILIES
THAT RECEIVE THE FULL SUBSISTENCE ALLOWANCE AND THOSE THAT DO NOT IS
NOT PRECISELY FAMILIES OF MORE THAN SIX MEMBERS.  IN PRACTICE, IT
APPEARS THAT THE SUBSISTENCE NEEDS OF A FAMILY OF SIX MEMBERS ARE FULLY
MET.  THE NEEDS OF THE SEVENTH MEMBER (I.E., THE FIFTH OR SIXTH CHILD,
DEPENDING UPON WHETHER ONE OR BOTH PARENTS ARE WITHIN THE ASSISTANCE
UNIT), AS DEFINED BY THE STATE ARE MET, IF AT ALL, ONLY TO A VERY SMALL
EXTENT.  IN THE USUAL SITUATION, NO PAYMENTS WHATEVER WOULD BE MADE
WITH RESPECT TO ANY ADDITIONAL ELIGIBLE DEPENDENT CHILDREN. 

/3/  S. REP. NO. 165, 87TH CONG., 1ST SESS., 6 (1961). 

/4/  MORE TECHNICALLY, THE FEDERAL GOVERNMENT SUPPLIES FIVE-SIXTHS
OF THE OVERALL AMOUNT SPENT PER RECIPIENT UP TO $18, PLUS ONE-HALF OF
THE AMOUNT FROM $18 TO $32, TO A TOTAL OF $22.  SEE 42 U.S.C. 603 (1964
ED., SUPP.IV). 

/5/  FOR EXAMPLE, IN THE CASE OF THE APPELLEE MRS. WILLIAMS, IF SHE
WERE TO PLACE TWO OF HER CHILDREN OVER 12 YEARS OF AGE WITH RELATIVES,
PAYMENTS OF $79 PER MONTH WOULD BE PAID WITH RESPECT TO EACH CHILD. 
THUS, A TOTAL OF $480 PER MONTH, OR $158 ABOVE THE MAXIMUM, WOULD BE
AVAILABLE FOR THE SUPPORT OF MRS. WILLIAMS AND HER EIGHT CHILDREN. 
SIMILARLY, IF APPELLEES MR. AND MRS. GARY WERE TO PLACE WITH RELATIVES
TWO OF THEIR CHILDREN WHO ARE BETWEEN THE AGES OF 6 AND 12 YEARS, EACH
CHILD WOULD BE ELIGIBLE TO RECEIVE $65.  HENCE MR. AND MRS. GARY AND
THEIR EIGHT CHILDREN WOULD RECEIVE SUPPORT IN THE AMOUNT OF $380 PER
MONTH, OR SOME $130 ABOVE THE FAMILY MAXIMUM. 

/6/  THE STATE HAS CONTENDED THAT THE ECONOMIC INCENTIVE TO THE
DISINTEGRATION OF LARGE FAMILIES THAT THE MAXIMUM GRANT REGULATION
PROVIDES IS MERELY SPECULATIVE.  HOWEVER, SERIOUS DOUBT IS CAST UPON
THIS VIEW BY THE STIPULATION OF FACTS ENTERED IN THE DISTRICT COURT
WHICH STATES IN PART THAT, DESPITE THE STRONG DESIRE TO KEEP THEIR
FAMILIES TOGETHER, APPELLEES IN THIS CASE WERE HAVING GREAT DIFFICULTY
IN DOING SO BECAUSE OF THE LIMITATIONS ON THEIR GRANTS. 

/7/  IN S. REP. NO. 628, 74TH CONG., 1ST SESS., 17 (1935), THE
ORIGINAL GOALS OF THE AFDC PROGRAM ARE STATED AS FOLLOWS:  "WITH NO
INCOME COMING IN, AND WITH YOUNG CHILDREN FOR WHOM PROVISION MUST BE
MADE FOR A NUMBER OF YEARS, FAMILIES WITHOUT A FATHER'S SUPPORT REQUIRE
PUBLIC ASSISTANCE, UNLESS THEY HAVE BEEN LEFT WITH ADEQUATE MEANS OR
ARE AIDED BY FRIENDS AND RELATIVES.  . . . THROUGH CASH GRANTS ADJUSTED
TO THE NEEDS OF THE FAMILY IT IS POSSIBLE TO KEEP THE YOUNG CHILDREN
WITH THEIR MOTHER IN THEIR OWN HOME, THUS PREVENTING THE NECESSITY OF
PLACING THE CHILDREN IN INSTITUTIONS.  THIS IS RECOGNIZED BY EVERYONE
TO BE THE LEAST EXPENSIVE AND ALTOGETHER THE MOST DESIRABLE METHOD FOR
MEETING THE NEEDS OF THESE FAMILIES THAT HAS YET BEEN DEVISED."  SEE
ALSO H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 10 (1935). 

THESE GOALS REMAIN THE SAME TODAY.  SEE 42 U.S.C. 601 (1964 ED.,
SUPP. IV).  SEE GENERALLY NOTE, WELFARE'S "CONDITION X," 76 YALE L.J.
1222, 1232-1233 (1967). 

/8/  IN VARIOUS BRIEFS SUBMITTED BOTH TO THIS COURT AND TO OTHER
COURTS IN ANALOGOUS LITIGATION, THE SECRETARY OF HEW AND THE SOLICITOR
GENERAL HAVE TAKEN THE OCCASION TO LABEL FAMILY MAXIMUM GRANT
REGULATIONS AS "ARBITRARY," OPRESSIVE OF LARGE FAMILIES, AS RESULTING
IN "PATENTLY DIFFERENT TREATMENT OF INDIVIDUALS," AND HAVING RECEIVED,
AT LEAST INFERENTIALLY, THE DISFAVOR OF CONGRESS.  SEE, E.G.,
MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE, ROSADO V. WYMAN,
ANTE, P. 397; BRIEF OF ROBERT H. FINCH, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE AS AMICUS CURIAE, LAMPTON V. BONIN, 299 F.SUPP.  336, 304
F.SUPP.  1384 (D.C.E.D. LA. 1969); BRIEF OF ROBERT H. FINCH, JEFFERSON
V. HACKNEY, 304 F.SUPP.  1332 (D.C.N.D. TEX. 1969).  HENCE THE VIEWS OF
HEW ON THE PRECISE ISSUE PRESENTED IN THE INSTANT CASE ARE, AT THE VERY
BEST, AMBIGUOUS AND QUITE POSSIBLY THE OPPOSITE OF WHAT THE COURT
ASCRIBES TO IT. 

/9/  THE MAXIMUM MAY BE EXPRESSED IN TERMS OF A FLAT DOLLAR AMOUNT,
AS A PERCENTAGE OF THE INDIVIDUAL'S BUDGETARY DEFICIT (I.E., THE
DIFFERENCE BETWEEN NEED AND OTHER INCOME), OR IN BOTH WAYS.  A SYSTEM
OF INDIVIDUAL MAXIMUMS MAY, OR MAY NOT, BE COMBINED WITH A FAMILY
MAXIMUM, OR, ALTERNATIVELY, A FAMILY MAXIMUM MAY BE IMPOSED IN THE
ABSENCE OF INDIVIDUAL MAXIMUMS.  SEE GENERALLY HEW, STATE MAXIMUMS AND
OTHER METHODS OF LIMITING MONEY PAYMENTS TO RECIPIENTS OF THE SPECIAL
TYPES OF PUBLIC ASSISTANCE, OCT. 1968 (NCSS REPORT D-3); SPARER, SOCIAL
WELFARE LAW TESTING, 12 PRAC.LAW.(NO. 4) 13, 21 (1966).  IN ADDITION,
THERE ARE DIFFERING METHODS BY WHICH FAMILY MAXIMUMS MAY BE RELATED TO
OTHER RESOURCES AVAILABLE TO THE FAMILY.  SOME STATES, INCLUDING
MARYLAND, SUBTRACT AVAILABLE RESOURCES FROM THE STATE-CALCULATED NEED;
IN OTHER JURISDICTIONS, AVAILABLE RESOURCES ARE SUBTRACTED FROM THE
FAMILY MAXIMUM.  SEE, E.G., DEWS V. HENRY, 297 F.SUPP.  587 (D.C. ARIZ.
1969), INVOLVING LITIGATION WITH RESPECT TO THE ARIZONA FAMILY
MAXIMUM. 

/10/  THE LOWER COURTS HAVE BEEN UNANIMOUS IN THE VIEW THAT MAXIMUM
GRANT REGULATIONS SUCH AS MARYLAND'S ARE INVALID.  SEE DEWS V. HENRY,
SUPRA; WESTBERRY V. FISHER, 297 F.SUPP.  1109 (D.C. ME. 1969); LINDSEY
V. SMITH, 303 F.SUPP.  1203 (D.C.W.D. WASH. 1969); KAISER V.
MONTGOMERY,-- F.SUPP.-- (D.C.N.D. CAL. 1969).  SEE ALSO COLLINS V.
STATE BOARD OF SOCIAL WELFARE, 248 IOWA 369, 81 N.W.2D 4 (1957) (FAMILY
MAXIMUM INVALID UNDER EQUAL PROTECTION CLAUSE OF STATE CONSTITUTION);
METCALF V. SWANK, 293 F.SUPP.  268 (D.C.N.D. ILL. 1968) (DICTUM). 

/11/  IN THEORY, NO PAYMENTS ARE MADE WITH RESPECT TO NEEDY
DEPENDENT CHILDREN IN EXCESS OF FOUR OR FIVE AS THE CASE MAY BE.  IN
PRACTICE, OF COURSE, THE EXCESS CHILDREN SHARE IN THE BENEFITS THAT ARE
PAID WITH RESPECT TO THE OTHER MEMBERS OF THE FAMILY.  THE RESULT IS
THAT SUPPORT FOR THE ENTIRE FAMILY IS REDUCED BELOW MINIMUM SUBSISTENCE
LEVELS.  HOWEVER, FOR PURPOSES OF EQUAL PROTECTION ANALYSIS, IT MAKES
NO DIFFERENCE WHETHER THE CLASS AGAINST WHICH THE MAXIMUM GRANT
REGULATION DISCRIMINATES IS DEFINED AS ELIGIBLE DEPENDENT CHILDREN IN
EXCESS OF THE FOURTH OR FIFTH, OR, ALTERNATIVELY, AS INDIVIDUALS IN
LARGE FAMILIES GENERALLY, THAT IS, THOSE WITH MORE THAN SIX MEMBERS. 

/12/  TUSSMAN & TENBROEK, THE EQUAL PROTECTION OF THE LAWS, 37
CALIF.L.REV.  341, 348 (1949). 

/13/  SEE GENERALLY DEVELOPMENTS IN THE LAW-- EQUAL PROTECTION, 82
HARV.L.REV.  1065, 1076-1087 (1969). 

/14/  SEE GENERALLY VANALSTYNE, THE DEMISE OF THE RIGHT-PRIVILEGE
DISTINCTION IN CONSTITUTIONAL LAW, 81 HARV.L.REV.  1439 (1968). 
APPELLEES DO ARGUE THAT THEIR "FUNDAMENTAL RIGHTS" ARE INFRINGED BY THE
MAXIMUM GRANT REGULATION.  THEY CITE, FOR EXAMPLE, SKINNER V. OKLAHOMA,
316 U.S. 535 (1942), FOR THE PROPOSITION THAT THE "RIGHT OF
PROCREATION" IS FUNDAMENTAL.  THIS STATEMENT IS NO DOUBT ACCURATE AS
FAR AS IT GOES, BUT THE EFFECT OF THE MAXIMUM GRANT REGULATION UPON THE
RIGHT OF PROCREATION IS MARGINAL AND INDIRECT AT BEST, TOTALLY UNLIKE
THE COMPULSORY STERILIZATION LAW THAT WAS AT ISSUE IN SKINNER. 

AT THE SAME TIME THE COURT'S INSISTENCE THAT EQUAL PROTECTION
ANALYSIS TURNS ON THE BASIS OF A CLOSED CATEGORY OF "FUNDAMENTAL
RIGHTS" INVOLVES A CURIOUS VALUE JUDGMENT.  IT IS CERTAINLY DIFFICULT
TO BELIEVE THAT A PERSON WHOSE VERY SURVIVAL IS AT STAKE WOULD BE
COMFORTED BY THE KNOWLEDGE THAT HIS "FUNDAMENTAL" RIGHTS ARE PRESERVED
INTACT. 

ON THE ISSUE OF WHETHER THERE IS A "RIGHT" TO WELFARE ASSISTANCE,
SEE GENERALLY GRAHAM, PUBLIC ASSISTANCE:  THE RIGHT TO RECEIVE; THE
OBLIGATION TO REPAY, 43 N.Y.U.L.REV.  451 (1968); HARVITH, FEDERAL
EQUAL PROTECTION AND WELFARE ASSISTANCE, 31 ALBANY L.REV.  210 (1967);
NOTE, WELFARE DUE PROCESS:  THE MAXIMUM GRANT LIMITATION ON THE RIGHT
TO SURVIVE, 3 GA.L.REV.  459 (1969).  SEE ALSO UNIVERSAL DECLARATION OF
HUMAN RIGHTS, ART. 25. 

/15/  THIS IS ESENTIALLY WHAT THIS COURT HAS DONE IN APPLYING EQUAL
PROTECTION CONCEPTS IN NUMEROUS CASES, THOUGH THE VARIOUS ASPECTS OF
THE APPROACH APPEAR WITH A GREATER OR LESSER DEGREE OF CLARITY IN
PARTICULAR CASES.  SEE, E.G., MCLAUGHLIN V. FLORIDA, SUPRA; RINALDI V.
YEAGER, 384 U.S. 305 (1966); CARRINGTON V. RASH, 380 U.S. 89 (1965);
DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963); SKINNER V. OKLAHOMA,
SUPRA. 

FOR AN APPLICATION OF THIS APPROACH TO SEVERAL WELFARE QUESTIONS,
SEE COMMENT, EQUAL PROTECTION AS A MEASURE OF COMPETING INTERESTS IN
WELFARE LITIGATION, 21 ME.L.REV.  175 (1969). 

/16/  SEE ALSO ROTHSTEIN V. WYMAN, 303 F.SUPP.  339, 346-347
(D.C.S.D.N.Y. 1969); HARVITH, SUPRA, N. 14, 31 ALBANY L.REV.,AT 222
226. 

/17/  SEE SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337, 340-342
(1969) (RELYING ON DEVASTATING IMPACT OF WAGE GARNISHMENT TO REQUIRE
PRIOR HEARING AS A MATTER OF DUE PROCESS); GOLDBERG V. KELLY, ANTE, AT
264:  "THUS THE CRUCIAL FACTOR IN THIS CONTEXT-- A FACTOR NOT PRESENT
IN THE CASE OF THE BLACKLISTED GOVERNMENT CONTRACTOR, THE DISCHARGED
GOVERNMENT EMPLOYEE, THE TAXPAYER DENIED A TAX EXEMPTION, OR VITUALLY
ANYONE ELSE WHOSE GOVERNMENTAL ENTITLEMENTS ARE ENDED-- IS THAT THE
TERMINATION OF AID PENDING RESOLUTION OF A CONTROVERSY OVER ELIGIBILITY
MAY DEPRIVE AN ELIGIBLE RECIPIENT OF THE VERY MEANS BY WHICH TO LIVE
WHILE HE WAITS." 

/18/  COMPARE SHAPIRO V. THOMPSON, SUPRA, AT 627, STRIKING DOWN ONE
YEAR RESIDENCY REQUIREMENT FOR WELFARE ELIGIBILITY AS VIOLATION OF
EQUAL PROTECTION, AND NOTING THAT THE BENEFITS IN QUESTION ARE "THE
VERY MEANS TO SUBSIST-- FOOD, SHELTER, AND OTHER NECESSITIES OF LIFE,"
WITH KIRK V. BOARD OF REGENTS, 273 CAL.SPP.2D 430, 439-440, 78
CAL.REPTR.  260, 266-267 (1969), APPEAL DISMISSED, 396 U.S. 554 (1970),
UPHOLDING ONE-YEAR RESIDENCY REQUIREMENT FOR TUITION-FREE GRADUATE
EDUCATION AT STATE UNIVERSITY, AND DISTINGUISHING SHAPIRO ON THE GROUND
THAT IT "INVOLVED THE IMMEDIATE AND PRESSING NEED FOR PRESERVATION OF
LIFE AND HEALTH OF PERSONS UNABLE TO LIVE WITHOUT PUBLIC ASSISTANCE,
AND THEIR DEPENDENT CHILDREN." 

THESE CASES AND THOSE CITED IN N. 17, SUPRA, SUGGEST THAT WHETHER OR
NOT THERE IS A CONSTITUTIONAL "RIGHT" TO SUBSISTENCE (AS TO WHICH SEE
N. 14, SUPRA), DEPRIVATIONS OF BENEFITS NECESSARY FOR SUBSISTENCE WILL
RECEIVE CLOSER CONSTITUTIONAL SCRUTINY, UNDER BOTH THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES, THAN WILL DEPRIVATIONS OF LESS ESSENTIAL
FORMS OF GOVERNMENTAL ENTITLEMENTS. 

/19/  SEE HEW REPORT ON MONEY PAYMENTS TO RECIPIENTS OF SPECIAL
TYPES OF PUBLIC ASSISTANCE, OCT. 1967, TABLE 4 (NCSS REPORT D-4). 

/20/  THE STATE OF MARYLAND HAS LONG SPOKEN WITH AT LEAST TWO VOICES
ON THE ISSUE OF THE MAXIMUM GRANT REGULATION.  THE DEPARTMENT OF PUBLIC
WELFARE HAS TAKEN THE POSITION, OVER A NUMBER OF YEARS, THAT THE
REGULATION SHOULD BE ABOLISHED AND HAS MADE SEVERAL PROPOSALS TO THAT
EFFECT.  IN SO DOING, THE DEPARTMENT HAS TAKEN THE POSITION THAT ITS
PROPOSALS WOULD NOT SET WELFARE BENEFITS OUT OF LINE WITH HOUSEHOLD
INCOMES THROUGHOUT THE STATE.  SEE, E.G., MINUTES OF STATE BOARD OF
PUBLIC WELFARE MEETING, SEPTEMBER 26, 1958, APP. 130-132. 

/21/  INDEED, RULE 200, SEC. IX A(2)(B)(5) OF THE MANUAL OF THE MD.
DEPT. OF SOCIAL SERVICES PROHIBITS THE REFERRAL FOR EMPLOYMENT OF AFDC
MOTHERS WHO ARE NEEDED IN THE HOME.  AND THE UNSUITABILITY OF MANY AFDC
MOTHERS HAS BEEN WELL CHRONICLED IN MD. DEPT. OF SOCIAL SERVICES,
PROFILE OF CASELOADS, RESEARCH REPORT NO. 5, P. 6 (1969).  SEE ALSO
CARTER, THE EMPLOYMENT POTENTIAL OF AFDC MOTHERS, 6 WELFARE IN REVIEW,
NO.4, PP.1, 4 (1968). 

/22/  THUS, THE STATE CANNOT SINGLE OUT A MINUSCLUE PROPORTION OF
THE TOTAL NUMBER OF FAMILIES IN THE STATE AS IN NEED OF BIRTH CONTROL
INCENTIVES.  NOT ONLY IS THE CLASSIFICATION EFFECTED BY THE REGULATION
TOTALLY UNDERINCLUSIVE IF THIS IS ITS RATIONALE, BUT IT ALSO
ARBITRARILY PUNISHES CHILDREN FOR FACTORS BEYOND THEIR CONTROL, AND
OVERINCLUSIVELY APPLIES TO FAMILIES LIKE APPELLEES' THAT WERE ALREADY
LARGE BEFORE IT BECAME NECESSARY TO SEEK ASSISTANCE.  FOR SIMILAR
REASONS, THE ARGUMENT THAT THE REGULATION SERVES AS A DISINCENTIVE TO
DESERTION DOES NOT STAND SCRUTINY.     /23/  LIKEWISE, THE STATE, WITH
THE ENCOURAGEMENT OF CONGRESS, SEE 42 U.S.C. 602(A)(21), 610 (1964 ED.,
SUPP. IV), HAS DEVELOPED EXTENSIVE STATUTORY PROVISIONS TO DEAL
SPECIFICALLY WITH THE PROBLEM OF PARENTAL DESERTION.  SEE GENERALLY MD.
ANN. CODE, ART. 27, SECS. 88-96 (1967 REPL.  VOL.).  AND CONGRESS HAS
MANDATED, WITH RESPECT TO FAMILY PLANNING, THAT THE STATES PROVIDE
SERVICES TO AFDC RECIPIENTS WITH THE OBJECTIVE OF "PREVENTING OR
REDUCING THE INCIDENCE OF BIRTHS OUT OF WEDLOCK AND OTHERWISE
STRENGTHENING FAMILY LIFE."  42 U.S.C. 602(A)(15) (1964 ED., SUPP.
IV). 

GEORGE W. LIEBMANN, ASSISTANT ATTORNEY GENERAL OF MARYLAND, ARGUED
THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE FRANCIS B.
BURCH, ATTORNEY GENERAL, ROBERT F. SWEENEY, DEPUTY ATTORNEY GENERAL,
AND J. MICHAEL MCWILLIAMS, ASSISTANT ATTORNEY GENERAL. 

JOSPEH A. MATERA ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES. 

THOMAS C. LYNCH, ATTORNEY GENERAL, AND ELIZABETH PALMER, DEPUTY
ATTORNEY GENERAL, FILED A BRIEF FOR THE STATE OF CALIFORNIA AS AMICUS
CURIAE URGING REVERSAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY THOMAS L.
FIKE FOR THE LEGAL AID SOCIETY OF ALAMEDA COUNTY, AND BY CARL RACHLIN,
ANTHONY B. CHING, PETER E. SITKIN, AND STEVEN J. ANTLER FOR THE CENTER
ON SOCIAL WELFARE POLICY AND LAW ET AL.
..END :












O'HAIR V. PAINE, 397 U.S. 531 


       O'HAIR ET AL. V. PAINE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

   DISTRICT OF TEXAS

        NO. 1190.  DECIDED APRIL 6, 1970 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 

JAMES H. ANDERSON, JR., FOR APPELLANTS SOCIETY OF SEPARATIONISTS,
INC., ET AL. 

SOLICITOR GENERAL GRISWOLD FOR APPELLEES. 
..END :







ILLINOIS V. ALLEN, 397 U.S. 337 


       ILLINOIS V. ALLEN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 606.  ARGUED FEBRUARY 24, 1970-- DECIDED MARCH 31,
1970 


RESPONDENT, WHO WAS ON TRIAL FOR ROBBERY, WAS REMOVED FROM THE
COURTROOM FOR REPEATED DISRUPTIVE BEHAVIOR AND THE USE OF VILE AND
ABUSIVE LANGUAGE DIRECTED AT THE TRIAL JUDGE, NOTWITHSTANDING THE
JUDGE'S PRIOR WARNING THAT REMOVAL WOULD FOLLOW ANOTHER OUTBURST. 
APPOINTED COUNSEL REPRESENTED RESPONDENT DURING THE PERIOD RESPONDENT
WAS NOT ALLOWED IN THE COURTROOM, PRINCIPALLY THE PRESENTATION OF THE
STATE'S CASE.  HAVING GIVEN SOME ASSURANCES OF GOOD CONDUCT, RESPONDENT
WAS ALLOWED TO RETURN TO THE COURTROOM WHILE APPOINTED COUNSEL
PRESENTED HIS DEFENSE.  RESPONDENT WAS CONVICTED.  FOLLOWING THE STATE
SUPREME COURT'S AFFIRMANCE, RESPONDENT FILED A PETITION FOR A WRIT OF
HABEAS CORPUS IN FEDERAL COURT, CONTENDING THAT HE HAD BEEN DEPRIVED OF
HIS RIGHT UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO CONFRONT THE
WITNESSES AGAINST HIM.  THE DISTRICT COURT DECLINED TO ISSUE THE WRIT. 
THE COURT OF APPEALS REVERSED, HOLDING THAT A DEFENDANT'S SIXTH
AMENDMENT RIGHT TO ATTEND HIS OWN TRIAL WAS SO "ABSOLUTE" THAT,
REGARDLESS OF HOW UNRULY HIS CONDUCT, HE COULD NEVER BE HELD TO HAVE
LOST THAT RIGHT SO LONG AS HE INSISTED ON IT, AS RESPONDENT HAD. 
HELD: 

1.  A DEFENDANT CAN LOSE HIS RIGHT TO BE PRESENT AT TRIAL, IF,
FOLLOWING THE JUDGE'S WARNING THAT HE WILL BE REMOVED IF HIS DISRUPTIVE
BEHAVIOR CONTINUES, HE NEVERTHELESS INSISTS ON CONDUCTING HIMSELF IN
SUCH A DISRUPTIVE MANNER THAT HIS TRIAL CANNOT PROCEED IF HE REMAINS IN
THE COURTROOM.  HE CAN RECLAIM THE RIGHT TO BE PRESENT AS SOON AS HE IS
WILLING TO COMPORT HIMSELF WITH DECORUM AND RESPECT.  PP. 342-343. 

2.  A TRIAL JUDGE CONFRONTED BY A DEFENDANT'S DISRUPTIVE CONDUCT CAN
EXERCISE DISCRETION TO MEET THE CIRCUMSTANCES OF THE CASE; AND THOUGH
NO SINGLE FORMULA IS BEST FOR ALL SITUATIONS, THERE ARE AT LEAST THREE
CONSTITUTIONALLY PERMISSIBLE APPROACHES FOR THE COURT'S HANDLING OF AN
OBSTREPEROUS DEFENDANT:  (1) BIND AND GAG HIM AS A LAST RESORT, THEREBY
KEEPING HIM PRESENT; (2) CITE HIM FOR CRIMINAL OR CIVIL CONTEMPT; OR
(3) REMOVE HIM FROM THE COURTROOM, WHILE THE TRIAL CONTINUES, UNTIL HE
PROMISES TO CONDUCT HIMSELF PROPERLY.  PP. 343-346. 

3. ON THE FACTS OF THIS CASE THE TRIAL JUDGE DID NOT ABUSE HIS
DISCRETION, RESPONDENT THROUGH HIS DISRUPTIVE BEHAVIOR HAVING LOST HIS
RIGHT OF CONFRONTATION UNDER THE SIXTH AND FOURTEENTH AMENDMENTS.  PP.
345-347. 

413 F.2D 232, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION PROVIDES THAT:  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED
SHALL ENJOY THE RIGHT . . . TO BE CONFRONTED WITH THE WITNESSES AGAINST
HIM . . . . "  WE HAVE HELD THAT THE FOURTEENTH AMENDMENT MAKES THE
GUARANTEES OF THIS CLAUSE OBLIGATORY UPON THE STATES.  POINTER V.
TEXAS, 380 U.S. 400 (1965).  ONE OF THE MOST BASIC OF THE RIGHTS
GUARANTEED BY THE CONFRONTATION CLAUSE IS THE ACCUSED'S RIGHT TO BE
PRESENT IN THE COURTROOM AT EVERY STAGE OF HIS TRIAL.  LEWIS V. UNITED
STATES, 146 U.S. 370 (1892).  THE QUESTION PRESENTED IN THIS CASE IS
WHETHER AN ACCUSED CAN CLAIM THE BENEFIT OF THIS CONSTITUTIONAL RIGHT
TO REMAIN IN THE COURTROOM WHILE AT THE SAME TIME HE ENGAGES IN SPEECH
AND CONDUCT WHICH IS SO NOISY, DISORDERLY, AND DISRUPTIVE THAT IT IS
EXCEEDINGLY DIFFICULT OR WHOLLY IMPOSSIBLE TO CARRY ON THE TRIAL. 

THE ISSUE AROSE IN THE FOLLOWING WAY.  THE RESPONDENT, ALLEN, WAS
CONVICTED BY AN ILLINOIS JURY OF ARMED ROBBERY AND WAS SENTENCED TO
SERVE 10 TO 30 YEARS IN THE ILLINOIS STATE PENITENTIARY.  THE EVIDENCE
AGAINST HIM SHOWED THAT ON AUGUST 12, 1956, HE ENTERED A TAVERN IN
ILLINOIS AND, AFTER ORDERING A DRINK, TOOK $200 FROM THE BARTENDER AT
GUNPOINT.  THE SUPREME COURT OF ILLINOIS AFFIRMED HIS CONVICTION,
PEOPLE V. ALLEN, 37 ILL.2D 167, 226 N.E.2D 1 (1967), AND THIS COURT
DENIED CERTIORARI.  389 U.S. 907 (1967).  LATER ALLEN FILED A PETITION
FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT ALLEGING THAT HE HAD BEEN
WRONGULLY DEPRIVED BY THE ILLINOIS TRIAL JUDGE OF HIS CONSTITUTIONAL
RIGHT TO REMAIN PRESENT THROUGHOUT HIS TRIAL.  FINDING NO
CONSTITUTIONAL VIOLATION, THE DISTRICT COURT DECLINED TO ISSUE THE
WRIT.  THE COURT OF APPEALS REVERSED, 413 F.2D 232 (1969), JUDGE
HASTINGS DISSENTING. 

THE FACTS SURROUNDING ALLEN'S EXPULSION FROM THE COURTROOM ARE SET
OUT IN THE COURT OF APPEALS' OPINION SUSTAINING ALLEN'S CONTENTION: 

     "AFTER HIS INDICTMENT AND DURING THE PRETRIAL STAGE, THE

  PETITIONER (ALLEN) REFUSED COURT-APPOINTED COUNSEL AND INDICATED

  TO THE TRIAL COURT ON SEVERAL OCCASIONS THAT HE WISHED TO CONDUCT

  HIS OWN DEFENSE.  AFTER CONSIDERABLE ARGUMENT BY THE PETITIONER,

  THE TRIAL JUDGE TOLD HIM, 'I'LL ASK MR. KELLY (COURT-APPOINTED

  COUNSEL) (TO) SIT IN AND PROTECT THE RECORD FOR YOUR, INSOFAR AS

  POSSIBLE.' 

"THE TRIAL BEGAN ON SEPTEMBER 9, 1957.  AFTER THE STATE'S

ATTORNEY HAD ACCEPTED THE FIRST FOUR JURORS FOLLOWING THEIR VOIR

  DIRE EXAMINATION, THE PETITIONER BEGAN EXAMINING THE FIRST JUROR

  AND CONTINUED AT GREAT LENGTH.  FINALLY, THE TRIAL JUDGE

  INTERRUPTED THE PETITIONER, REQUESTING HIM TO CONFINE HIS

  QUESTIONS SOLELY TO MATTERS RELATING TO THE PROSPECTIVE JUROR'S

  QUALIFICATIONS.  AT THAT POINT, THE PETITIONER STARTED TO ARGUE

  WITH THE JUDGE IN A MOST ABUSIVE AND DISRESPECTFUL MANNER.  AT

  LAST, AND SEEMINGLY IN DESPERATION, THE JUDGE ASKED APPOINTED

  COUNSEL TO PROCEED WITH THE EXAMINATION OF THE JURORS.  THE

  PETITIONER CONTINUED TO TALK, PROCLAIMING THAT THE APPOINTED

  ATTORNEY WAS NOT GOING TO ACT AS HIS LAWYER.  HE TERMINATED HIS

  REMARKS BY SAYING, 'WHEN I GO OUT FOR LUNCHTIME, YOU'RE (THE

  JUDGE) GOING TO BE A CORPSE HERE.'  AT THAT POINT HE TORE THE

  FILE WHICH HIS ATTORNEY HAD AND THREW THE PAPERS ON THE FLOOR. 

  THE TRIAL JUDGE THEREUPON STATED TO THE PETITIONER, 'ONE MORE

  OUTBREAK OF THAT SORT AND I'LL REMOVE Q W FROM THE COURTROOM.' 

  THIS WARNING HAD NO EFFECT ON THE PETITIONER.  HE CONTINUED TO

  TALK BACK TO THE JUDGE, SAYING, 'THERE'S NOT GOING TO BE NO

  TRIAL, EITHER.  I'M GOING TO SIT HERE AND YOU'RE GOING TO TALK

  AND YOU CAN BRING YOUR SHACKLES OUT AND STRAIGHT JACKET AND PUT

THEM ON ME AND TAPE MY MOUTH, BUT IT WILL DO NO GOOD BECAUSE

  THERE'S NOT GOING TO BE NO TRIAL.'  AFTER MORE ABUSIVE REMARKS BY

  THE PETITIONER, THE TRIAL JUDGE ORDERED THE TRIAL TO PROCEED IN

  THE PETITIONER'S ABSENCE.  THE PETITIONER WAS REMOVED FROM THE

  COURTROOM.  THE VOIR DIRE EXAMINATION THEN CONTINUED AND THE JURY

  WAS SELECTED IN THE ABSENCE OF THE PETITIONER. 

     "AFTER A NOON RECESS AND BEFORE THE JURY WAS BROUGHT INTO THE

  COURTROOM, THE PETITIONER, APPEARING BEFORE THE JUDGE, COMPLAINED

  ABOUT THE FAIRNESS OF THE TRIAL AND HIS APPOINTED ATTORNEY.  HE

  ALSO SAID HE WANTED TO BE PRESENT IN THE COURT DURING HIS TRIAL. 

  IN REPLY, THE JUDGE SAID THAT THE PETITIONER WOULD BE PERMITTED

  TO REMAIN IN THE COURTROOM IF HE 'BEHAVED (HIMSELF) AND (DID) NOT

  INTERFERE WITH WITH THE INTRODUCTION OF THE CASE.'  THE JURY WAS

  BROUGHT IN AND SEATED.  COUNSEL FOR THE PETITIONER THEN MOVED TO

  EXCLUDE THE WITNESSES FROM THE COURTROOM.  THE (PETITIONER)

  PROTESTED THIS EFFORT ON THE PART OF HIS ATTORNEY, SAYING:

  'THERE IS GOING TO BE NO PROCEEDING.  I'M GOING TO START TALKING

  AND I'M GOING TO KEEP ON TALKING ALL THROUGH THE TRIAL.  THERE'S

  NOT GOING TO BE NO TRIAL LIKE THIS.  I WANT MY SISTER AND MY

  FRIENDS HERE IN COURT TO TESTIFY FOR ME.'  THE TRIAL JUDGE

  THEREUPON ORDERED THE PETITIONER REMOVED FROM THE COURTROOM." 
413

  F.2D,AT 233-234. 

AFTER THIS SECOND REMOVAL, ALLEN REMAINED OUT OF THE COURTROOM DURING
THE PRESENTATION OF THE STATE'S CASE-IN-CHIEF, EXCEPT THAT HE WAS
BROUGHT IN ON SEVERAL OCCASIONS FOR PURPOSES OF IDENTIFICATION.  DURING
ONE OF THESE LATTER APPEARANCES, ALLEN RESPONDED TO ONE OF THE JUDGE'S
QUESTIONS WITH VILE AND ABUSIVE LANGUAGE.  AFTER THE PROSECUTION'S CASE
HAD BEEN PRESENTED, THE TRIAL JUDGE REITERATED HIS PROMISE TO ALLEN
THAT HE COULD RETURN TO THE COURTROOM WHENEVER HE AGREED TO CONDUCT
HIMSELF PROPERLY.  ALLEN GAVE SOME ASSURANCES OF PROPER CONDUCT AND WAS
PERMITTED TO PRESENT THROUGH THE REMAINDER OF THE TRIAL, PRINCIPALLY
HIS DEFENSE, WHICH WAS CONDUCTED BY HIS APPOINTED COUNSEL. 

THE COURT OF APPEALS WENT ON TO HOLD THAT THE SUPREME COURT OF
ILLINOIS WAS WRONG IN RULING THAT ALLEN HAD BY HIS CONDUCT RELINQUISHED
HIS CONSTITUTIONAL RIGHT TO BE PRESENT, DECLARING THAT: 

     "NO CONDITIONS MAY BE IMPOSED ON THE ABSOLUTE RIGHT OF A

  CRIMINAL DEFENDANT TO BE PRESENT AT ALL STAGES OF THE

  PROCEEDING.  THE INSISTENCE OF A DEFENDANT THAT HE EXERCISE THIS

RIGHT UNDER UNREASONABLE CONDITIONS DOES NOT AMOUNT TO A WAIVER. 

  SUCH CONDITIONS, IF INSISTED UPON, SHOULD AND MUST BE DEALT WITH

  IN A MANNER THAT DOES NOT COMPEL THE RELINQUISHMENT OF HIS

  RIGHT. 

     "IN LIGHT OF THE DECISION IN HOPT V. UTAH, 110 U.S. 574 . . .

  (1884) AND SHIELDS V. UNITED STATES, 273 U.S. 583 . . . (1927),

  AS WELL AS THE CONSTITUTIONAL MANDATE OF THE SIXTH AMENDMENT, WE

ARE OF THE VIEW THAT THE DEFENDANT SHOULD NOT HAVE BEEN EXCLUDED

  FROM THE COURTROOM DURING HIS TRIAL DESPITE HIS DISRUPTIVE AND

  DISRESPECTFUL CONDUCT.  THE PROPER COURSE FOR THE TRIAL JUDGE WAS

  TO HAVE RESTRAINED THE DEFENDANT BY WHATEVER MEANS NECESSARY,

  EVEN IF THOSE MEANS INCLUDED HIS BEING SHACKLED AND GAGGED."  413

  F.2D,AT 235. 

THE COURT OF APPEALS FELT THAT THE DEFENDANT'S SIXTH AMENDMENT RIGHT
TO BE PRESENT AT HIS OWN TRIAL WAS SO "ABSOLUTE" THAT, NO MATTER HOW
UNRULY OR DISRUPTIVE THE DEFENDANT'S CONDUCT MIGHT BE, HE COULD NEVER
BE HELD TO HAVE LOST THAT RIGHT SO LONG AS HE CONTINUED TO INSIST UPON
IT, AS ALLEN CLEARLY DID.  THEREFORE THE COURT OF APPEALS CONCLUDED
THAT A TRIAL JUDGE COULD NEVER EXPEL A DEFENDANT FROM HIS OWN TRIAL AND
THAT THE JUDGE'S ULTIMATE REMEDY WHEN FACED WITH AN OBSTREPEROUS
DEFENDANT LIKE ALLEN WHO DETERMINES TO MAKE HIS TRIAL IMPOSSIBLE IS TO
BIND AND GAG HIM.  /1/  WE CANNOT AGREE THAT THE SIXTH AMENDMENT, THE
CASES UPON WHICH THE COURT OF APPEALS RELIED, OR ANY OTHER CASES OF
THIS COURT SO HANDICAP A TRIAL JUDGE IN CONDUCTING A CRIMINAL TRIAL. 
THE BROAD DICTA IN HOPT V. UTAH, SUPRA, AND LEWIS V. UNITED STATES, 146
U.S. 370 (1892), THAT A TRIAL CAN NEVER CONTINUE IN THE DEFENDANT'S
ABSENCE HAVE BEEN EXPRESSLY REJECTED.  DIAZ V. UNITED STATES, 223 U.S.
442 (1912).  WE ACCEPT INSTEAD THE STATEMENT OF MR. JUSTICE CARDOZO
WHO, SPEAKING FOR THE COURT IN SNYDER V. MASSACHUSETTS, 291 U.S. 97,
106 (1934), SAID:  "NO DOUBT THE PRIVILEGE (OF PERSONALLY CONFRONTING
WITNESSES) MAY BE LOST BY CONSENT OR AT TIMES EVEN BY MISCONDUCT."  /2/
ALTHOUGH MINDFUL THAT COURTS MUST INDULGE EVERY REASONABLE PRESUMPTION
AGAINST THE LOSS OF CONSTITUTIONAL RIGHTS, JOHNSON V. ZERBST, 304 U.S.
458, 464 (1938), WE EXPLICITLY HOLD TODAY THAT A DEFENDANT CAN LOSE HIS
RIGHT TO BE PRESENT AT TRIAL IF, AFTER HE HAS BEEN WARNED BY THE JUDGE
THAT HE WILL BE REMOVED IF HE CONTINUES HIS DISRUPTIVE BEHAVIOR, HE
NEVERTHELESS INSISTS ON CONDUCTING HIMSELF IN A MANNER SO DISORDERLY,
DISRUPTIVE, AND DISRESPECTFUL OF THE COURT THAT HIS TRIAL CANNOT BE
CARRIED ON WITH HIM IN THE COURTROOM.  /3/  ONCE LOST, THE RIGHT TO BE
PRESENT CAN, OF COURSE, BE RECLAIMED AS SOON AS THE DEFENDANT IS
WILLING TO CONDUCT HIMSELF CONSISTENTLY WITH THE DECORUM AND RESPECT
INHERENT IN THE CONCEPT OF COURTS AND JUDICIAL PROCEEDINGS. 

IT IS ESSENTIAL TO THE PROPER ADMINISTRATION OF CRIMINAL JUSTICE
THAT DIGNITY, ORDER, AND DECORUM BE THE HALLMARKS OF ALL COURT
PROCEEDINGS IN OUR COUNTRY.  THE FLAGRANT DISREGARD IN THE COURTROOM OF
ELEMENTARY STANDARDS OF PROPER CONDUCT SHOULD NOT AND CANNOT BE
TOLERATED.  WE BELIEVE TRIAL JUDGES CONFRONTED WITH DISRUPTIVE,
CONTUMACIOUS, STUBBORNLY DEFIANT DEFENDANTS MUST BE GIVEN SUFFICIENT
DISCRETION TO MEET THE CIRCUMSTANCES OF EACH CASE.  NO ONE FORMULA FOR
MAINTAINING THE APPROPRIATE COURTROOM ATMOSPHERE WILL BE BEST IN ALL
SITUATIONS.  WE THINK THERE ARE AT LEAST THREE CONSTITUTIONALLY
PERMISSIBLE WAYS FOR A TRIAL JUDGE TO HANDLE AN OBSTREPEROUS DEFENDANT
LIKE ALLEN:  (1) BIND AND GAG HIM, THEREBY KEEPING HIM PRESENT; (2)
CITE HIM FOR CONTEMPT; (3) TAKE HIM OUT OF THE COURTROOM UNTIL HE
PROMISES TO CONDUCT HIMSELF PROPERLY. 

        I 

TRYING A DEFENDANT FOR A CRIME WHILE HE SITS BOUND AND GAGGED BEFORE
THE JUDGE AND JURY WOULD TO AN EXTENT COMPLY WITH THAT PART OF THE
SIXTH AMENDMENT'S PURPOSES THAT ACCORDS THE DEFENDANT AN OPPORTUNITY TO
CONFRONT THE WITNESSES AT THE TRIAL.  BUT EVEN TO CONTEMPLATE SUCH A
TECHNIQUE, MUCH LESS SEE IT, AROUSES A FEELING THAT NO PERSON SHOULD BE
TRIED WHILE SHACKLED AND GAGGED EXCEPT AS A LAST RESORT.  NOT ONLY IS
IT POSSIBLE THAT THE SIGHT OF SHACKLES AND GAGS MIGHT HAVE A
SIGNIFICANT EFFECT ON THE JURY'S FEELINGS ABOUT THE DEFENDANT, BUT THE
USE OF THIS TECHNIQUE IS ITSELF SOMETHING OF AN AFFRONT TO THE VERY
DIGNITY AND DECORUM OF JUDICIAL PROCEEDINGS THAT THE JUDGE IS SEEKING
TO UPHOLD.  MOREOVER, ONE OF THE DEFENDANT'S PRIMARY ADVANTAGES OF
BEING PRESENT AT THE TRIAL, HIS ABILITY TO COMMUNICATE WITH HIS
COUNSEL, IS GREATLY REDUCED WHEN THE DEFENDANT IS IN A CONDITION OF
TOTAL PHYSICAL RESTRAINT.  IT IS IN PART BECAUSE OF THESE INHERENT
DISADVANTAGES AND LIMITATIONS IN THIS METHOD OF DEALING WITH DISORDERLY
DEFENDANTS THAT WE DECLINE TO HOLD WITH THE COURT OF APPEALS THAT A
DEFENDANT CANNOT UNDER ANY POSSIBLE CIRCUMSTANCES BE DEPRIVED OF HIS
RIGHT TO BE PRESENT AT TRAIL.  HOWEVER, IN SOME SITUATIONS WHICH WE
NEED NOT ATTEMPT TO FORESEE, BINDING AND GAGGING MIGHT POSSIBLY BE THE
FAIREST AND MOST REASONABLE WAY TO HANDLE A DEFENDANT WHO ACTS AS ALLEN
DID HERE. 

        II 

IN A FOOTNOTE THE COURT OF APPEALS SUGGESTED THE POSSIBLE
AVAILABILITY OF CONTEMPT OF COURT AS A REMEDY TO MAKE ALLEN BEHAVE IN
HIS ROBBERY TRIAL, AND IT IS TRUE THAT CITING OR THREATENING TO CITE A
CONTUMACIOUS DEFENDANT FOR CRIMINAL CONTEMPT MIGHT IN ITSELF BE
SUFFICIENT TO MAKE A DEFENDANT STOP INTERRUPTING A TRIAL.  IF SO, THE
PROBLEM WOULD BE SOLVED EASILY, AND THE DEFENDANT COULD REMAIN IN THE
COURTROOM.  OF COURSE, IF THE DEFENDANT IS DETERMINED TO PREVENT ANY
TRIAL, THEN A COURT IN ATTEMPTING TO TRY THE DEFENDANT FOR CONTEMPT IS
STILL CONFRONTED WITH THE IDENTICAL DILEMMA THAT THE ILLINOIS COURT
FACED IN THIS CASE.  AND CRIMINAL CONTEMPT HAS OBVIOUS LIMITATIONS AS A
SANCTION WHEN THE DEFENDANT IS CHARGED WITH A CRIME SO SERIOUS THAT A
VERY SEVERE SENTENCE SUCH AS DEATH OR LIFE IMPRISONMENT IS LIKELY TO BE
IMPOSED.  IN SUCH A CASE THE DEFENDANT MIGHT NOT BE AFFECTED BY A MERE
CONTEMPT SENTENCE WHEN HE ULTIMATELY FACES A FAR MORE SERIOUS
SANCTION.  NEVERTHELESS, THE CONTEMPT REMEDY SHOULD BE BORNE IN MIND BY
A JUDGE IN THE CIRCUMSTANCES OF THIS CASE. 

ANOTHER ASPECT OF THE CONTEMPT REMEDY IS THE JUDGE'S POWER, WHEN
EXERCISED CONSISTENTLY WITH STATE AND FEDERAL LAW, TO IMPRISON AN
UNRULY DEFENDANT SUCH AS ALLEN FOR CIVIL CONTEMPT AND DISCONTINUE THE
TRIAL UNTIL SUCH TIME AS THE DEFENDANT PROMISES TO BEHAVE HIMSELF. 
THIS PROCEDURE IS CONSISTENT WITH THE DEFENDANT'S RIGHT TO BE PRESENT
AT TRIAL, AND YET IT AVOIDS THE SERIOUS SHORTCOMINGS OF THE USE OF
SHACKLES AND GAGS.  IT MUST BE RECOGNIZED, HOWEVER, THAT A DEFENDANT
MIGHT CONCEIVABLY, AS A MATTER OF CALCULATED STRATEGY, ELECT TO SPEND A
PROLONGED PERIOD IN CONFINEMENT FOR CONTEMPT IN THE HOPE THAT ADVERSE
WITNESSES MIGHT BE UNAVAILABLE AFTER A LAPSE OF TIME.  A COURT MUST
GUARD AGAINST ALLOWING A DEFENDANT TO PROFIT FROM HIS OWN WRONG IN THIS
WAY.              III 

THE TRIAL COURT IN THIS CASE DECIDED UNDER THE CIRCUMSTANCES TO
REMOVE THE DEFENDANT FROM THE COURTROOM AND TO CONTINUE HIS TRIAL IN
HIS ABSENCE UNTIL AND UNLESS HE PROMISED TO CONDUCT HIMSELF IN A MANNER
BEFITTING AN AMERICAN COURTROOM.  AS WE SAID EARLIER, WE FIND NOTHING
UNCONSTITUTIONAL ABOUT THIS PROCEDURE.  ALLEN'S BEHAVIOR WAS CLEARLY OF
SUCH AN EXTREME AND AGGRAVATED NATURE AS TO JUSTIFY EITHER HIS REMOVAL
FROM THE COURTROOM OR HIS TOTAL PHYSICAL RESTRAINT.  PRIOR TO HIS
REMOVAL HE WAS REPEATEDLY WARNED BY THE TRIAL JUDGE THAT HE WOULD BE
REMOVED FROM THE COURTROOM IF HE PERSISTED IN HIS UNRULY CONDUCT, AND,
AS JUDGE HASTINGS OBSERVED IN HIS DISSENTING OPINION, THE RECORD
DEMONSTRATES THAT ALLEN WOULD NOT HAVE BEEN AT ALL DISSUADED BY THE
TRIAL JUDGE'S USE OF HIS CRIMINAL CONTEMPT POWERS.  ALLEN WAS
CONSTANTLY INFORMED THAT HE COULD RETURN TO THE TRIAL WHEN HE WOULD
AGREE TO CONDUCT HIMSELF IN AN ORDERLY MANNER.  UNDER THESE
CIRCUMSTANCES WE HOLD THAT ALLEN LOST HIS RIGHT GUARANTEED BY THE SIXTH
AND FOURTEENTH AMENDMENTS TO BE PRESENT THROUGHOUT HIS TRIAL. 

        IV 

IT IS NOT PLEASANT TO HOLD THAT THE RESPONDENT ALLEN WAS PROPERLY
BANISHED FROM THE COURT FOR A PART OF HIS OWN TRIAL.  BUT OUR COURTS,
PALLADIUMS OF LIBERTY AS THEY ARE, CANNOT BE TREATED DISRESPECTFULLY
WITH IMPUNITY.  NOR CAN THE ACCUSED BE PERMITTED BY HIS DISRUPTIVE
CONDUCT INDEFINITELY TO AVOID BEING TRIED ON THE CHARGES BROUGHT
AGAINST HIM.  IT WOULD DEGRADE OUR COUNTRY AND OUR JUDICIAL SYSTEM TO
PERMIT OUR COURTS TO BE BULLIED, INSULTED, AND HUMILIATED AND THEIR
ORDERLY PROGRESS THWARTED AND OBSTRUCTED BY DEFENDANTS BROUGHT BEFORE
THEM CHARGED WITH CRIMES.  AS GUARDIANS OF THE PUBLIC WELFARE, OUR
STATE AND FEDERAL JUDICIAL SYSTEMS STRIVE TO ADMINISTER EQUAL JUSTICE
TO THE RICH AND THE POOR, THE GOOD AND THE BAD, THE NATIVE AND FOREIGN
BORN OF EVERY RACE, NATIONALITY, AND RELIGION.  BEING MANNED BY HUMANS,
THE COURTS ARE NOT PERFECT AND ARE BOUND TO MAKE SOME ERRORS.  BUT, IF
OUR COURTS ARE TO REMAIN WHAT THE FOUNDERS INTENDED, THE CITADELS OF
JUSTICE, THEIR PROCEEDINGS CANNOT AND MUST NOT BE INFECTED WITH THE
SORT OF SCURRILOUS, ABUSIVE LANGUAGE AND CONDUCT PARADED BEFORE THE
ILLINOIS TRIAL JUDGE IN THIS CASE.  THE RECORD SHOWS THAT THE ILLINOIS
JUDGE AT ALL TIMES CONDUCTED HIMSELF WITH THE DIGNITY, DECORUM, AND
PATIENCE THAT BEFIT A JUDGE.  EVEN IN HOLDING THAT THE TRIAL JUDGE HAD
ERRED, THE COURT OF APPEALS PRAISED HIS "COMMENDABLE PATIENCE UNDER
SEVERE PROVOCATION." 

WE DO NOT HOLD THAT REMOVING THIS DEFENDANT FROM HIS OWN TRIAL WAS
THE ONLY WAY THE ILLINOIS JUDGE COULD HAVE CONSTITUTIONALLY SOLVED THE
PROBLEM HE HAD.  WE DO HOLD, HOWEVER, THAT THERE IS NOTHING WHATEVER IN
THIS RECORD TO SHOW THAT THE JUDGE DID NOT ACT COMPLETELY WITHIN HIS
DISCRETION.  DEPLORABLE AS IT IS TO REMOVE A MAN FROM HIS OWN TRIAL,
EVEN FOR A SHORT TIME, WE HOLD THAT THE JUDGE DID NOT COMMIT LEGAL
ERROR IN DOING WHAT HE DID. 

THE JUDGMENT OF THE COURT OF APPEALS IS

         REVERSED. 

/1/  IN A FOOTNOTE THE COURT OF APPEALS ALSO REFERRED TO THE TRIAL
JUDGE'S CONTEMPT POWER.  THIS SUBJECT IS DISCUSSED IN PART II OF THIS
OPINION.  INFRA, AT 344-345. 

/2/  RULE 43 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES
THAT "(IN PROSECUTIONS FOR OFFENSES NOT PUNISHABLE BY DEATH, THE
DEFENDANT'S VOLUNTARY ABSENCE AFTER THE TRIAL HAS BEEN COMMENCED IN HIS
PRESENCE SHALL NOT PREVENT CONTINUING THE TRIAL TO AND INCLUDING THE
RETURN OF THE VERDICT." 

/3/  SEE MURRAY, THE POWER OF EXPEL A CRIMINAL DEFENDANT FROM HIS
OWN TRIAL:  A COMPARATIVE VIEW, 36 U.COLO.L.REV.  171-175 (1964);
GOLDIN, PRESENCE OF THE DEFENDANT AT RENDITION OF THE VERDICT IN FELONY
CASES, 16 COL.L.REV.  18-31 (1916). 

MR. JUSTICE BRENNAN, CONCURRING. 

THE SAFEGUARDS THAT THE CONSTITUTION ACCORDS TO CRIMINAL DEFENDANTS
PRESUPPOSE THAT GOVERNMENT HAS A SOVEREIGN PREROGATIVE TO PUT ON TRIAL
THOSE ACCUSED IN GOOD FAITH OF VIOLATING VALID LAWS.  CONSTITUTIONAL
POWER TO BRING AN ACCUSED TO TRIAL IS FUNDAMENTAL TO A SCHEME OF
"ORDERED LIBERTY" AND PREREQUISITE TO SOCIAL JUSTICE AND PEACE. 
HISTORY HAS KNOWN THE BREAKDOWN OF LAWFUL PENAL AUTHORITY-- THE FEUD,
THE VENDETTA, AND THE TERROR OF PENALTIES METED OUT BY MOBS OR ROVING
BANDS OF VIGILANTES.  IT HAS KNOWN, TOO, THE PERVERSION OF THAT
AUTHORITY.  IN SOME SOCIETIES THE PENAL ARM OF THE STATE HAS REACHED
INDIVIDUAL MEN THROUGH SECRET DENUNCIATION FOLLOWED BY SUMMARY
PUNISHMENT.  IN OTHERS THE SOLEMN POWER OF CONDEMNATION HAS BEEN
CONFIDED TO THE CAPRICE OF TYRANTS.  DOWN THE CORRIDORS OF HISTORY HAVE
ECHOED THE CRIES OF INNOCENT MEN CONVICTED BY OTHER IRRATIONAL OR
ARBITRARY PROCEDURES.  THESE ARE SOME OF THE ALTERNATIVE HISTORY OFFERS
TO THE PROCEDURE ADOPTED BY OUR CONSTITUTION.  THE RIGHT OF A DEFENDANT
TO TRIAL-- TO TRIAL BY JURY-- HAS LONG BEEN CHERISHED BY OUR PEOPLE AS
A VITAL RESTRAINT ON THE PENAL AUTHORITY OF GOVERNMENT.  AND IT HAS
NEVER BEEN DOUBTED THAT UNDER OUR CONSTITUTIONAL TRADITIONS TRIAL IN
ACCORDANCE WITH THE CONSTITUTION IS THE PROPER MODE BY WHICH GOVERNMENT
EXERCISES THAT AUTHORITY. 

LINCOLN SAID THIS NATION WAS "CONCEIVED IN LIBERTY AND DEDICATED TO
THE PROPOSITION THAT ALL MEN ARE CREATED EQUAL."  THE FOUNDER'S DREAM
OF A SOCIETY WHERE ALL MEN ARE FREE AND EQUAL HAS NOT BEEN EASY TO
REALIZE.  THE DEGREE OF LIBERTY AND EQUALITY THAT EXISTS TODAY HAS BEEN
THE PRODUCT OF UNCEASING STRUGGLE AND SACRIFICE.  MUCH REMAINS TO BE
DONE-- SO MUCH THAT THE VERY INSTITUTIONS OF OUR SOCIETY HAVE COME
UNDER CHALLENGE.  HENCE, TODAY, AS IN LINCOLN'S TIME, A MAN MAY ASK
"WHETHER (THIS) NATION OR ANY NATION SO CONCEIVED AND SO DEDICATED CAN
LONG ENDURE."  IT CANNOT ENDURE IF THE NATION FALLS SHORT ON THE
GUARANTEES OF LIBERTY, JUSTICE, AND EQUALITY EMBODIED IN OUR FOUNDING
DOCUMENTS.  BUT IT ALSO CANNOT ENDURE IF WE ALLOW OUR PRECIOUS HERITAGE
OF ORDERED LIBERTY TO BE RIPPED APART AMID THE SOUND AND FURY OF OUR
TIME.  IT CANNOT ENDURE IF IN INDIVIDUAL CASES THE CLAIMS OF SOCIAL
PEACE AND ORDER ON THE ONE SIDE AND OF PERSONAL LIBERTY ON THE OTHER
CANNOT BE MUTUALLY RESOLVED IN THE FORUM DESIGNATED BY THE
CONSTITUTION.  IF THAT RESOLUTION CANNOT BE REACHED BY JUDICIAL TRIAL
IN A COURT OF LAW, IT WILL BE REACHED BY JUDICIAL TRIAL IN A COURT OF
LAW, IT WILL BE REACHED ELSEWHERE AND BY OTHER MEANS, AND THERE WILL BE
GRAVE DANGER THAT LIBERTY, EQUALITY, AND THE ORDER ESSENTIAL TO BOTH
WILL BE LOST. 

THE CONSTITUTIONAL RIGHT OF AN ACCUSED TO BE PRESENT AT HIS TRIAL
MUST BE CONSIDERED IN THIS CONTEXT.  THUS THERE CAN BE NO DOUBT
WHATEVER THAT THE GOVERNMENTAL PREROGATIVE TO PROCEED WITH A TRIAL MAY
NOT BE DEFEATED BY CONDUCT OF THE ACCUSED THAT PREVENTS THE TRIAL FROM
GOING FORWARD.  OVER A HALF CENTURY AGO THIS COURT IN DIAZ V. UNITED
STATES, 223 U.S. 442, 457-458 (1912), APPROVED WHAT I BELIEVE IS THE
GOVERNING PRINCIPLE.  WE THERE QUOTED FROM FALK V. UNITED STATES, 15
APP.D.C. 446 (1899), THE CASE OF AN ACCUSED WHO APPEARED AT HIS TRIAL
BUT FLED THE JURISDICTION BEFORE IT WAS COMPLETED.  THE COURT PROCEEDED
IN HIS ABSENCE, AND A VERDICT OF GUILTY WAS RETURNED.  IN AFFIRMING THE
CONVICTION OVER THE ACCUSED'S OBJECTION THAT HE COULD NOT BE CONVICTED
IN HIS ABSENCE, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
SAID: 

"IT DOES NOT SEEM TO US TO BE CONSONANT WITH THE DICTATES OF COMMON
SENSE THAT AN ACCUSED PERSON . . . SHOULD BE AT LIBERTY, WHENEVER HE
PLEASED, . . . TO BREAK UP A TRIAL ALREADY COMMENCED.  THE PRACTICAL
RESULT OF SUCH A PROPOSITION, IF ALLOWED TO BE LAW, WOULD BE TO PREVENT
ANY TRIAL WHATEVER UNTIL THE ACCUSED PERSON HIMSELF SHOULD BE PLEASED
TO PERMIT IT. . . . THIS WOULD BE A TRAVESTY OF JUSTICE WHICH COULD NOT
BE TOLERATED . . . . (WE DO NOT THINK THAT ANY RULE OF LAW OR
CONSTITUTIONAL PRINCIPLE LEADS US TO ANY CONCLUSION THAT WOULD BE SO
DISASTROUS AS WELL TO THE ADMINISTRATION OF JUSTICE AS TO THE TRUE
INTERESTS OF CIVIL LIBERTY. 

        .          .          .          . 

"THE QUESTION IS ONE OF BROAD PUBLIC PLICY, WHETHER AN ACCUSED
PERSON, PLACED UPON TRIAL FOR CRIME AND PROTECTED BY ALL THE SAFEGUARDS
WITH WHICH THE HUMANITY OF OUR PRESENT CRIMINAL LAW SEDULOUSLY
SURROUNDS HIM, CAN WITH IMPUNITY DEFY THE PROCESSESOF THAT LAW,
PARALYZE THE PROCEEDINGS OF COURTS AND JURIES AND TURN THEM INTO A
SOLEMN FARCE, AND ULTIMATELY COMPEL SOCIETY, FOR ITS OWN SAFETY, TO
RESTRICT THE OPERATION OF THE PRINCIPLE OF PERSONAL LIBERTY.  NEITHER
IN CRIMINAL NOR IN CIVIL CASES WILL THE LAW ALLOW A PERSON TO TAKE
ADVANTAGE OF HIS OWN WRONG." 

TO ALLOW THE DISRUPTIVE ACTIVITIES OF A DEFENDANT LIKE RESPONDENT TO
PREVENT HIS TRIAL IS TO ALLOW HIM TO PROFIT FROM HIS OWN WRONG.  THE
CONSTITUTION WOULD PROTECT NONE OF US IF IT PREVENTED THE COURTS FROM
ACTING TO PRESERVE THE VERY PROCESSES THAT THE CONSTITUTION ITSELF
PRESCRIBES. 

OF COURSE, NO ACTION AGAINST AN UNRULY DEFENDANT IS PERMISSIBLE
EXCEPT AFTER HE HAS BEEN FULLY AND FAIRLY INFORMED THAT HIS CONDUCT IS
WRONG AND INTOLERABLE, AND WARNED OF THE POSSIBLE CONSEQUENCES OF
CONTINUED MISBEHAVIOR.  THE RECORD MAKES CLEAR THAT RESPONDENT WAS SO
INFORMED AND WARNED IN THIS CASE.  THUS THERE CAN BE NO DOUBT THAT
RESPONDENT, BY PERSISTING IN HIS REPREHENSIBLE CONDUCT, SURRENDERED HIS
RIGHT TO BE PRESENT AT THE TRIAL. 

AS THE COURT POINTS OUT, SEVERAL REMEDIES ARE AVAILABLE TO THE JUDGE
FACED WITH A DEFENDANT BENT ON DISRUPTING HIS TRIAL.  HE CAN HAVE HIM
BOUND, SHACKLED, AND GAGGED; HE CAN HOLD HIM IN CIVIL OR CRIMINAL
CONTEMPT; HE CAN EXCLUDE HIM FROM THE TRIAL AND CARRY ON IN HIS
ABSENCE.  NO DOUBT OTHER METHODS CAN BE DEVISED.  I JOIN THE COURT'S
OPINION AND AGREE THAT THE CONSTITUTION DOES NOT REQUIRE OR PROHIBIT
THE ADIPTION OF ANY OF THESE COURSES.  THE CONSTITUTIONAL RIGHT TO BE
PRESENT CAN BE SURRENDERED IF IT IS ABUSED FOR THE PURPOSE OF
FRUSTRATING THE TRIAL.  DUE PROCESS DOES NOT REQUIRE THE PRESENCE OF
THE DEFENDANT IF HIS PRESENCE MEANS THAT THERE WILL BE NO ORDERLY
PROCESS AT ALL.  HOWEVER, I ALSO AGREE WITH THE COURT THAT THESE THREE
METHODS ARE NOT EQUALLY ACCEPTABLE.  IN PARTICULAR, SHACKLING AND
GAGGING A DEFENDANT IS SURELY THE LEAST ACCEPTABLE OF THEM.  IT OFFENDS
NOT ONLY JUDICIAL DIGNITY AND DECORUM, BUT ALSO THAT RESPECT FOR THE
INDIVIDUAL WHICH IS THE LIFEBLOOD OF THE LAW. 

I WOULD ADD ONLY THAT WHEN A DEFENDANT IS EXCLUDED FROM HIS TRIAL,
THE COURT SHOULD MAKE REASONABLE EFFORTS TO ENABLE HIM TO COMMUNICATE
WITH HIS ATTORNEY AND, IF POSSIBLE, TO KEEP APPRISED OF THE PROGRESS OF
HIS TRIAL.  ONCE THE COURT HAS REMOVED THE CONTUMACIOUS DEFENDANT, IT
IS NOT WEAKNESS TO MITIGATE THE DISADVANTAGES OF HIS EXPULSION AS FAR
AS TECHNOLOGICALLY POSSIBLE IN THE CIRCUMSTANCES. 

MR. JUSTICE DOUGLAS. 

I AGREE WITH THE COURT THAT A CRIMINAL TRIAL, IN THE CONSTITUTIONAL
SENSE, CANNOT TAKE PLACE WHERE THE COURTROOM IS A BEDLAM AND EITHER THE
ACCUSED OR THE JUDGE IS HURLING EPITHETS AT THE OTHER.  A COURTROOM IS
A HALLOWED PLACE WHERE TRIALS MUST PROCEED WITH DIGNITY AND NOT BECOME
OCCASIONS FOR ENTERTAINMENT BY THE PARTICIPANTS, BY EXTRANEOUS PERSONS,
BY MODERN MASS MEDIA, OR OTHERWISE. 

MY DIFFICULTY IS NOT WITH THE BASIC HYPOTHESIS OF THIS DECISION, BUT
WITH THE USE OF THIS CASE TO ESTABLISH THE APPROPRIATE GUIDELINES FOR
JUDICIAL CONTROL. 

THIS IS A STALE CASE, THE TRIAL HAVING TAKEN PLACE NEARLY 13 YEARS
AGO.  THAT LAPSE OF TIME IS NOT NECESSARY A BARRIER TO A CHALLENGE OF
THE CONSTITUTIONALITY OF A CRIMINAL CONVICTION.  BUT IN THIS CASE IT
SHOULD BE. 

THERE IS MORE THAN AN INTIMATION IN THE PRESENT RECORD THAT THE
DEFENDANT WAS A MENTAL CASE.  THE PASSAGE OF TIME SINCE 1957, THE DATE
OF THE TRIAL, MAKES IT, HOWEVER, IMPOSSIBLE TO DETERMINE WHAT THE
MENTAL CONDITION OF THE DEFENDANT WAS AT THAT TIME.  THE FACT THAT A
DEFENDANT HAS BEEN FOUND TO UNDERSTAND "THE NATURE AND OBJECT OF THE
PROCEEDINGS AGAINST HIM" AND THUS COMPETENT TO STAND TRIAL /1/  DOES
NOT ANSWER THE DIFFICULT QUESTIONS AS TO WHAT A TRIAL JUDGE SHOULD DO
WITH AN OTHERWISE MENTALLY ILL DEFENDANT WHO CREATES A COURTROOM
DISTURBANCE.  WHAT A JUDGE SHOULD DO WITH A DEFENDANT WHOSE COURTROOM
ANTICS MAY NOT BE VOLITIONAL IS A PERPLEXING PROBLEM WHICH WE SHOULD
NOT REACH EXCEPT ON A CLEAR RECORD.  THIS DEFENDANT HAD NO LAWYER AND
REFUSED ONE, THOUGH THE TRIAL JUDGE PROPERLY INSISTED THAT A MEMBER OF
THE BAR BE PRESENT TO REPRESENT HIM.  HE TRIED TO BE HIS OWN LAWYER AND
WHAT TRANSPIRED WAS PATHETIC, AS WELL AS DISGUSTING AND DISGRACEFUL. 

WE SHOULD NOT REACH THE MERITS BUT SHOULD REVERSE THE CASE OF
STALENESS OF THE RECORD AND AFFIRM THE DENIAL OF RELIEF BY THE DISTRICT
COURT.  AFTER ALL, BEHIND THE ISSUANCE OF A WRIT OF HABEAS CORPUS IS
THE EXERCISE OF AN INFORMED DISCRETION.  THE QUESTION, HOW TO PROCEED
IN A CRIMINAL CASE AGAINST A DEFENDANT WHO IS A MENTAL CASE, SHOULD BE
RESOLVED ONLY ON A FULL AND ADEQUATE RECORD. 

OUR REAL PROBLEMS OF THIS TYPE LIE NOT WITH THIS CASE BUT WITH OTHER
KINDS OF TRIALS.  FIRST ARE THE POLITICAL TRIALS.  THEY FREQUENTLY
RECUR IN OUR HISTORY /2/  AND INSOFAR AS THEY TAKE PLACE IN FEDERAL
COURTS WE HAVE BROAD SUPERVISORY POWERS OVER THEM.  THAT IS ONE SETTING
WHERE THE QQUESTION ARISES WHETHER THE ACCUSED HAS RIGHTS OF
CONFRONTATION THAT THE LAW INVADES AT ITS PERIL. 

IN ANGLO-AMERICAN LAW, GREAT INJUSTICES HAVE AT TIMES BEEN DONE TO
UNPOPULAR MINORITIES BY JUDGES, AS WELL AS BY PROSECUTORS.  I REFER TO
LONDON IN 1670 WHEN WILLIAM PENN, THE GENTLE QAKER, WAS TRIED FOR
CAUSING A RIOT WHEN ALL THAT HE DID WAS TO PREACH A SERMON ON GRACE
CHURCH STREET, HIS CHURCH HAVING BEEN CLOSED UNDER THE CONVENTICLE
ACT: 

     "PENN.  I AFFIRM I HAVE BROKEN NO LAW, NOR AM I GUILTY OF THE

  INDICTMENT THAT IS LAID TO MY CHARGE; AND TO THE END THE BENCH,

  THE JURY, AND MYSELF, WITH THESE THAT HEAR US, MAY HAVE A MORE

  DIRECT UNDERSTANDING OF THIS PROCEDURE, I DESIRE YOU WOULD LET ME

  KNOW BY WHAT LAW IT IS YOU PROSECUTE ME, AND UPON WHAT LAW YOU

  GROUND MY INDICTMENT. 

     "REC.  UPON THE COMMON-LAW. 

     "PENN.  WHERE IS THAT COMMON-LAW? 

     "REC. YOU MUST NOT THINK THAT I AM ABLE TO RUN UP SO MANY
YEARS, AND OVER SO MANY ADJUDGED CASES, WHICH WE CALL COMMON-LAW, TO
ANSWER YOUR CURIOSITY. 

     "PENN.  THIS ANSWER I AM SURE IS VERY SHORT OF MY QUESTION,
FOR

  IF IT BE COMMON, IT SHOULD NOT BE SO HARD TO PRODUCE. 

     "REC.  SIR, WILL YOU PLEAD TO YOUR INDICTMENT? 

     "PENN.  SHALL I PLEAD TO AN INDICTMENT THAT HATH NO FOUNDATION

  IN LAW?  IF IT CONTAIN THAT LAW YOU SAY I HAVE BROKEN, WHY SHOULD

  YOU DECLINE TO PRODUCE THAT LAW, SINCE IT WILL BE IMPOSSIBLE FOR

  THE JURY TO DETERMINE, OR AGREE TO BRING IN THEIR VERDICT, WHO

  HAVE NOT THE LAW PRODUCED, BY WHICH THEY SHOULD MEASURE THE TRUTH

  OF THIS INDICTMENT, AND THE GUILT, OR CONTRARY OF MY FACT? 

"REC.  YOU ARE A SAUCY FELLOW, SPEAK TO THE INDICTMENT. 

    "PENN.  I SAY, IT IS MY PLACE TO SPEAK TO MATTER OF LAW; I AM

  ARRAIGNED A PRISONER; MY LIBERTY, WHICH IS NEXT TO LIFE ITSELF,

  IS NOW CONCERNED:  YOU ARE MANY MOUTHS AND EARS AGAINST ME, AND

  IF I MUST NOT BE ALLOWED TO MAKE THE BEST OF MY CASE, IT IS HARD,

  I SAY AGAIN, UNLESS YOU SHOW ME, AND THE PEOPLE, THE LAW YOU

  GROUND YOUR INDICTMENT UPON, I SHALL TAKE IT FOR GRANTED YOUR

  PROCEEDINGS ARE MERELY ARBITRARY. 

        .          .          .      . 

     "REC.  THE QUESTION IS, WHETHER YOU ARE GUILTY OF THIS
INDICTMENT? 

     "PENN.  THE QUESTION IS NOT, WHETHER I AM GUILTY OF THIS

  INDICTMENT, BUT WHETHER THIS INDICTMENT BE LEGAL.  IT IS TOO

  GENERAL AND IMPERFECT AN ANSWER, TO SAY IT IS THE COMMON-LAW,

  UNLESS WE KNEW BOTH WHERE AND WHAT IT IS.  FOR WHERE THERE IS NO

  LAW, THERE IS NO TRANSGRESSION; AND THAT LAW WHICH IS NOT IN

  BEING, IS SO FAR FROM BEING COMMON, THAT IT IS NO LAW AT ALL. 

   "REC.  YOU ARE AN IMPERTINENT FELLOW, WILL YOU TEACH THE COURT

  WHAT LAW IS?  IT IS 'LEX NON SCRIPTA,' THAT WHICH MANY HAVE

  STUDIED 30 OR 40 YEARS TO KNOW, AND WOULD YOU HAVE ME TO TELL YOU

  IN A MOMENT? 

     "PENN.  CERTAINLY, IF THE COMMON LAW BE SO HARD TO BE

  UNDERSTOOD, IT IS FAR FROM BEING VERY COMMON; BUT IF THE LORD

  COKE IN HIS INSTITUTES BE OF ANY CONSIDERATION, HE TELLS US, THAT

COMMON-LAW IS COMMON RIGHT, AND THAT COMMON RIGHT IS THE GREAT

  CHARTER-PRIVILEGES . . . . 

     "REC.  SIR, YOU ARE A TROUBLESOME FELLOW, AND IT IS NOT FOR
THE

  HONOUR OF THE COURT TO SUFFER YOU TO GO ON. 

     "PENN.  I HAVE ASKED BUT ONE QUESTION, AND YOU HAVE NOT

  ANSWERED ME; THOUGH THE RIGHTS AND PRIVILEGES OF EVERY ENGLISHMAN

  BE CONCERNED IN IT. 

     "REC.  IF I SHOULD SUFFER YOU TO ASK QUESTIONS TILL TO-MORROW

  MORNING, YOU WOULD BE NEVER THE WISER. 

     "PENN.  THAT IS ACCORDING AS THE ANSWERS ARE. 

     "REC.  SIR, WE MUST NOT STAND TO HEAR YOU TALK ALL NIGHT. 

     "PENN.  I DESIGN NO AFFRONT TO THE COURT, BUT TO BE HEARD IN
MY

  JUST PLEA:  AND I MUST PLAINLY TELL YOU, THAT IF YOU WILL DENY ME

  OYER OF THAT LAW, WHICH YOU SEGGEST I HAVE BROKEN, YOU DO AT ONCE

  DENY ME AND ACKNOWLEDGED RIGHT, AND EVIDENCE TO THE WHOLE WORLD

  YOUR RESOLUTION TO SACRIFICE THE PRIVILEGES OF ENGLISHMEN TO YOUR

SINISTER AND ARBITRARY DESIGNS. 

     "REC.  TAKE HIM AWAY.  MR LORD, IF YOU TAKE NOT SOME COURSE

  WITH THIS PESTILENT FELLOW, TO STOP HIS MOUTH, WE SHALL NOT BE

  ABLE TO DO ANY THING TO NIGHT. 

     "MAYOR.  TAKE HIM AWAY, TAKE HIM AWAY, TURN HIM INTO THE

  BALE-DOCK."  /3/  THE TRIAL OF WILLIAM PENN, 6 HOW.ST.TR. 951,

  958-959. 

THE PANEL OF JUDGES WHO TRIED WILLIAM PENN WERE SINCERE, LAW-AND
ORDER MEN OF THEIR DAY.  THOUGH PENN WAS ACQUITTED BY THE JURY, HE WAS
JAILED BY THE COURT FOR HIS CONTEMPTUOUS CONDUCT.  WOULD WE TOLERATE
REMOVAL OF A DEFENDANT FROM THE COURTROOM DURING A TRIAL BECAUSE HE WAS
INSISTING ON HIS CONSTITUTIONAL RIGHTS, ALBEIT VOCIFERUOUSLY, NO MATTER
HOW OBNOXIOUS HIS PHILOSOPHY MIGHT HAVE BEEN TO THE BENCH THAT TRIED
HIM?  WOULD WE UPH LD CONTEMPT IN THAT SITUATION? 

PROBLEMS OF POLITICAL INDICTMENTS AND OF POLITICAL JUDGES RAISE
PROFOUND QUESTIONS GOING TO THE HEART OF THE SOCIAL COMPACT.  FOR THAT
COMPACT IS TWO-SIDED:  MAJORITIES UNDERTAKE TO PRESS THEIR GRIEVANCES
WITHIN LIMITS OF THE CONSTITUTION AND IN ACCORD WITH ITS PROCEDURES;
MINORITIES AGREE TO ABIDE BY CONSTITUTIONAL PROCEDURES IN RESISTING
THOSE CLAIMS. 

DOES THE ANSWER TO THAT PROBLEM INVOLVE DEFINING THE PROCEDURE FOR
CONDUCTING POLITICAL TRIALS OR DOES IT INVOLVE THE DESIGNING OF
CONSTITUTIONAL METHODS FOR PUTTING AN END TO THEM?  THIS RECORD IS
SINGULARLY INADEQUATE TO ANSWER THOSE QUESTIONS.  IT WILL BE TIME
ENOUGH TO RESOLVE THOSE WEIGHTY PROBLEMS WHEN A POLITICAL TRIAL REACHES
THIS COURT FOR REVIEW. 

SECOND ARE TRIALS USED BY MINORITIES TO DESTROY THE EXISTING
CONSTITUTIONAL SYSTEM AND BRING ON REPRESSIVE MEASURES.  RADICALS ON
THE LEFT HISTORICALLY HAVE USED THOSE TACTICS TO INCITE THE EXTREME
RIGHT WITH THE CALCULATED DESIGN OF FOSTERING A REGIME OF REPRESSION
FROM WHICH THE RADICALS ON THE LEFT HOPE TO EMERGE AS THE ULTIMATE
VICTOR.  /4/  THE LEFT IN THAT ROLE IS THE PROVOCATEUR.  THE
CONSTITUTION WAS NOT DESIGNED AS AN INSTRUMENT FOR THAT FORM OF ROUGH
AND-TUMBLE CONTEST.  THE SOCIAL COMPACT HAS ROOM FOR TOLERANCE;
PATIENCE, AND RESTRAINT, BUT NOT FOR SABOTAGE AND VIOLENCE.  TRIALS
INVOLVING THAT SPECTACLE STRIKE AT THE VERY HEART OF CONSTITUTIONAL
GOVERNMENT. 

I WOULD NOT TRY TO PROVIDE IN THIS CASE THE GUIDELINES FOR THOSE TWO
STRIKINGLY DIFFERENT TYPES OF CASES.  THE CASE PRESENTED HERE IS THE
CLASSICAL CRIMINAL CASE WITHOUT ANY POLITICAL OR SUBVERSIVE OVERTONES. 
IT INVOLVES A DEFENDANT WHO WAS A SICK PERSON AND WHO MAY OR MAY NOT
HAVE BEEN INSANE IN THE CLASSICAL SENSE /5/  BUT WHO APPARENTLY HAD A
DISEASED MIND.  AND, AS I HAVE SAID, THE RECORD IS SO STALE THAT IT IS
NOW MUCH TOO LATE TO FIND OUT WHAT THE TRUE FACTS REALLY WERE. 

/1/  SEE N. 5, INFRA. 

/2/  FROM SPIES V. PEOPLE, 122 ILL. 1, 12 N.E. 865, INVOLVING THE
HAYMARKET RIOT; IN RE DEBS, 158 U.S. 564, INVOLVING THE PULLMAN STRIKE;
MOONEY V. HOLOHAN, 294 U.S. 103, INVOLVING THE COPPER STRIKES OF 1917;
COMMONWEALTH V. SACCO, 255 MASS. 369, 151 N.E. 839, 259 MASS. 128, 156
N.E. 57, 261 MASS. 12, 158 N.E. 167, INVOLVING THE RED SCARE OF THE
20'S; TO DENNIS V. UNITED STATES, 341 U.S. 494, INVOLVING AN AGREEMENT
TO TEACH MARXISM. 

AS TO THE HAYMARKET RIOT RESULTING IN THE SPIES CASE, WEE 2 J.
COMMONS AND ASSOCIATES, HISTORY OF LABOUR IN THE UNITED STATES 386 ET
SEQ. (1918); W. SWINDLER, COURT AND CONSTITUTION IN THE TWENTIETH
CENTURY, CC. 3 AND 4 (1969). 

AS TO THE PULLMAN STRIKE AND THE DEBS CASE, SEE L. PFEFFER, THIS
HONORABLE COURT 215-216 (1965); A. LINDSEY, THE PULLMAN STRIKE, CC. XII
AND XIII (1942); COMMONS, SUPRA, AT 502-508. 

AS TO THE MOONEY CASE, SEE THE JANUARY 18, 1922, ISSUE OF THE NEW
REPUBLIC; R. FROST, THE MOONEY CASE (1968). 

AS TO THE SACCO-VANZETTI CASE SEE FRAENKEL, THE SACCO-VANZETTI CASE;
F. FRANKFURTER, THE CASE OF SACCO AND VANZETTI (1927). 

AS TO THE REPRESSION OF TEACHING INVOLVED IN THE DENNIS CASE, SEE O.
KIRCHHEIMER, POLITICAL JUSTICE 132-158 (1961). 

/3/  AT OLD BAILEY, WHERE THE WILLIAM PENN TRIAL WAS HELD THE
BALEDOCK (OR BAILDOCK) WAS "A SMALL ROOM TAKEN FROM ONE OF THE CORNERS
OF THE COURT, AND LEFT OPEN AT THE TOP; IN WHICH, DURING THE TRIALS,
ARE PUT SOME OF THE MALEFACTORS."  OXFORD ENG. DICT. 

/4/  AS RESPECTS THE STRATEGY OF GERMAN COMMUNISTS VIS-A-VIS THE
NAZIS IN THE 1930'S, SEE K. HEIDEN, DER FUEHRER 461, 462, 525, 551-552
(1944). 

/5/  IN A 1956 PRETRIAL SANITY HEARING, ALLEN WAS FOUND TO BE
INCOMPETENT TO STAND TRIAL.  APPROXIMATELY A YEAR LATER, HOWEVER, ON
OCTOBER 19, 1957, IN A SECOND COMPETENCY HEARING, HE WAS DECLARED SANE
AND COMPETENT TO STAND TRIAL. 

ALLEN'S SISTER AND BROTHER TESTIFIED IN ALLEN'S BEHALF AT THE
TRIAL.  THEY RECITED INSTANCES OF ALLEN'S UNUSUAL PAST BEHAVIOR AND
STATED THAT HE WAS CONFINED TO A MENTAL INSTITUTION IN 1953, ALTHOUGH
NO REASON FOR THIS LATTER CONFINEMENT WAS GIVEN.  A DOCTOR CALLED BY
THE PROSECUTION TESTIFIED THAT HE HAD EXAMINED ALLEN SHORTLY AFTER THE
COMMISSION OF THE CRIME WHICH TOOK PLACE ON AUGUST 12, 1956, AND ON
OTHER SUBSEQUENT OCCASIONS, AND THAT, IN HIS OPINION, ALLEN WAS SANE AT
THE TIME OF EACH EXAMINATION.  THIS EVIDENCE WAS ADMITTED ON THE
QUESTION OF ALLEN'S SANITY AT THE TIME OF THE OFFENSE.  THE JURY FOUND
HIM SANE AT THAT TIME AND THE ILLINOIS SUPREME COURT AFFIRMED THAT
FINDING.  SEE PEOPLE V. ALLEN, 37 ILL.2D 167, 226 N.E.2D 1. 

AT THE TIME OF ALLEN'S TRIAL IN 1957, THE TESTS IN ILLINOIS FOR THE
DEFENDANT'S SANITY AT THE TIME OF THE CRIMINAL ACT WERE THE M'NAGHTEN
RULE SUPPLEMENTED BY THE SO-CALLED "IRRESISTIBLE IMPULSE TEST."  PEOPLE
V. CARPENTER, 11 ILL.2D 60, 142 N.E.2D 11.  THE TESTS FOR DETERMINING A
DEFENDANT'S SANITY AT THE TIME OF TRIAL WERE THAT "(HE SHOULD BE
CAPABLE OF UNDERSTANDING THE NATURE AND OBJECT OF THE PROCEEDINGS
AGAINST HIM, HIS OWN CONDITION IN REFERENCE TO SUCH PROCEEDINGS, AND
HAVE SUFFICIENT MIND TO CONDUCT HIS DEFENSE IN A RATIONAL AND
REASONABLE MANNER," AND, FURTHER, THAT "HE SHOULD BE CAPABLE OF CO
OPERATING WITH HIS COUNSEL TO THE END THAT ANY AVAILABLE DEFENSES MAY
BE INTERPOSED."  PEOPLE V. BURSON, 11 ILL.2D 360, 369, 143 N.E.2D 239,
244-245. 

JOEL M. FLAUM, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE WILLIAM J. SCOTT,
ATTORNEY GENERAL, AND JAMES R. THOMPSON, MORTON E. FRIEDMAN, AND THOMAS
J. IMMEL, ASSISTANT ATTORNEYS GENERAL. 

H. REED HARRIS ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :



















IN RE WINSHIP, 397 U.S. 358 


       IN RE WINSHIP

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 778.  ARGUED JANUARY 20, 1970-- DECIDED MARCH 31, 1970 


RELYING ON A PREPONDERANCE OF THE EVIDENCE, THE STANDARD OF PROOF
REQUIRED BY SEC. 744(B) OF THE NEW YORK FAMILY COURT ACT, A NEW YORK
FAMILY COURT JUDGE FOUND THAT APPELLANT, THEN A 12-YEAR-OLD BOY, HAD
COMMITTED AN ACT THAT "IF DONE BY AN ADULT, WOULD CONSTITUTE THE CRIME
. . . OF LARCENY."  THE NEW YORK COURT OF APPEALS AFFIRMED, SUSTAINING
THE CONSTITUTIONALITY OF SEC. 744(B).  HELD:  PROOF BEYOND A REASONABLE
DOUBT, WHICH IS REQUIRED BY THE DUE PROCESS CLAUSE IN CRIMINAL TRIALS,
IS AMONG THE "ESSENTIALS OF DUE PROCESS AND FAIR TREATMENT" REQUIRED
DURING THE ADJUDICATORY STAGE WHEN A JUVENILE IS CHARGED WITH AN ACT
THAT WOULD CONSTITUTE A CRIME IF COMMITTED BY AN ADULT.  PP. 361-368. 

24 N.Y.2D 196, 247 N.E.2D 253, REVERSED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

CONSTITUTIONAL QUESTIONS DECIDED BY THIS COURT CONCERNING THE
JUVENILE PROCESS HAVE CENTERED ON THE ADJUDICATORY STAGE AT "WHICH A
DETERMINATION IS MADE AS TO WHETHER A JUVENILE IS A 'DELINQUENT' AS A
RESULT OF ALLEGED MISCONDUCT ON HIS PART, WITH THE CONSEQUENCE THAT HE
MAY BE COMMITTED TO A STATE INSTITUTION."  IN RE GAULT, 387 U.S. 1, 13
(1967).  GAULT DECIDED THAT, ALTHOUGH THE FOURTEENTH AMENDMENT DOES NOT
REQUIRE THAT THE HEARING AT THIS STAGE CONFORM WITH ALL THE
REQUIREMENTS OF A CRIMINAL TRIAL OR EVEN OF THE USUAL ADMINISTRATIVE
PROCEEDING, THE DUE PROCESS CLAUSE DOES REQUIRE APPLICATION DURING THE
ADJUDICATORY HEARING OF "THE ESSENTIALS OF DUE PROCESS AND FAIR
TREATMENT.'"  ID., AT 30.  THIS CASE PRESENTS THE SINGLE, NARROW
QUESTION WHETHER PROOF BEYOND A REASONABLE DOUBT IS AMONG THE
"ESSENTIALS OF DUE PROCESS AND FAIR TREATMENT" REQUIRED DURING THE
ADJUDICATORY STAGE WHEN A JUVENILE IS CHARGED WITH AN ACT WHICH WOULD
CONSTITUTE A CRIME IF COMMITTED BY AN ADULT.  /1/ 

DELINQUENT AS "A PERSON OVER SEVEN AND LESS THAN SIXTEEN YEARS OF AGE
WHO DOES ANY ACT WHICH, IF DONE BY AN ADULT, WOULD CONSTITUTE A
CRIME."  DURING A 1967 ADJUDICATORY HEARING, CONDUCTED PURSUANT TO SEC.
742 OF THE ACT, A JUDGE IN NEW YORK FAMILY COURT FOUND THAT APPELLANT,
THEN A 12-YEAR-OLD BOY, HAD ENTERED A LOCKER AND STOLEN $112 FROM A
WOMAN'S POCKET-BOOK.  THE PETITION WHICH CHARGED APPELLANT WITH
DELINQUENCY ALLEGED THAT HIS ACT, "IF DONE BY AN ADULT, WOULD
CONSTITUTE THE CRIME OR CRIMES OF LARCENY."  THE JUDGE ACKNOWLEDGED
THAT THE PROOF MIGHT NOT ESTABLISH GUILT BEYOND A REASONABLE DOUBT, BUT
REJECTED APPELLANT'S CONTENTION THAT SUCH PROOF WAS REQUIRED BY THE
FOURTEENTH AMENDMENT.  THE JUDGE RELIED INSTEAD ON SEC. 744(B) OF THE
NEW YORK FAMILY COURT ACT WHICH PROVIDES THAT "(ANY DETERMINATION AT
THE CONCLUSION OF (AN ADJUDICATORY) HEARING THAT A (JUVENILE) DID AN
ACT OR ACTS MUST BE BASED ON A PREPONDERANCE OF THE EVIDENCE."  /2/
DURING A SUBSEQUENT DISPOSITIONAL HEARING APPELLANT WAS ORDERED PLACED
IN A TRAINING SCHOOL FOR AN INITIAL PERIOD OF 18 MONTHS, SUBJECT TO
ANNUAL EXTENSIONS OF HIS COMMITMENT UNTIL HIS 18TH BIRTHDAY-- SIX YEARS
IN APPELLANT'S CASE.  THE APPELLATE DIVISION OF THE NEW YORK SUPREME
COURT, FIRST JUDICIAL DEPARTMENT, AFFIRMED WITHOUT OPINION, 30
APP.DIV.2D 781, 291 N.Y.S.2D 1005 (1968).  THE NEW YORK COURT OF
APPEALS THEN AFFIRMED BY A FOUR-TO-THREE VOTE, EXPRESSLY SUSTAINING THE
CONSTITUTIONALITY OF SEC. 744(B), 24 N.Y.2D 196, 247 N.E.2D 253
(1969).  /3/  WE NOTED PROBABLE JURISDICTION, 396 U.S. 885 (1969).  WE
REVERSE. 

        I 

THE REQUIREMENT THAT GUILT OF A CRIMINAL CHARGE BE ESTABLISHED BY
PROOF BEYOND A REASONABLE DOUBT DATES AT LEAST FROM OUR EARLY YEARS AS
A NATION.  THE "DEMAND FOR A HIGHER DEGREE OF PERSUASION IN CRIMINAL
CASES WAS RECURRENTLY EXPRESSED FROM ANCIENT TIMES, (THOUGH) ITS
CRYSTALLIZATION INTO THE FORMULA 'BEYOND A REASONABLE DOUBT' SEEMS TO
HAVE OCCURRED AS LATE AS 1798.  IT IS NOW ACCEPTED IN COMMON LAW
JURISDICTIONS AS THE MEASURE OF PERSUASION BY WHICH THE PROSECUTION
MUST CONVINCE THE TRIER OF ALL THE ESSENTIAL ELEMENTS OF GUILT."  C.
MCCORMICK, EVIDENCE SEC. 321, PP. 681-682 (1954); SEE ALSO 9 J.
WIGMORE, EVIDENCE SEC. 2497 (3D ED. 1940).  ALTHOUGH VIRTUALLY
UNANIMOUS ADHERENCE TO THE REASONABLE-DOUBT STANDARD IN COMMON-LAW
JURISDICTIONS MAY NOT CONCLUSIVELY ESTABLISH IT AS A REQUIREMENT OF DUE
PROCESS, SUCH ADHERENCE DOES "REFLECT A PROFOUND JUDGMENT ABOUT THE WAY
IN WHICH LAW SHOULD BE ENFORCED AND JUSTICE ADMINISTERED."  DUNCAN V.
LOUISIANA, 391 U.S. 145, 155 (1968). 

EXPRESSIONS IN MANY OPINIONS OF THIS COURT INDICATE THAT IT HAS LONG
BEEN ASSUMED THAT PROOF OF A CRIMINAL CHARGE BEYOND A REASONABLE DOUBT
IS CONSTITUTIONALLY REQUIRED.  SEE, FOR EXAMPLE, MILES V. UNITED
STATES, 103 U.S. 304, 312 (1881); DAVIS V. UNITED STATES, 160 U.S. 469,
488 (1895); HOLT V. UNITED STATES, 218 U.S. 245, 253 (1910); WILSON V.
UNITED STATES, 232 U.S. 563, 569-570 (1914); BRINEGAR V. UNITED STATES,
338 U.S. 160, 174 (1949); LELAND V. OREGON, 343 U.S. 790, 795 (1952);
HOLLAND V. UNITED STATES, 348 U.S. 121, 138 (1954); SPEISER V. RANDALL,
357 U.S. 513, 525-526 (1958).  CF. COFFIN V. UNITED STATES, 156 U.S.
432 (1895).  MR. JUSTICE FRANKFURTER STATED THAT "(IT IS THE DUTY OF
THE GOVERNMENT TO ESTABLISH . . . GUILT BEYOND A REASONABLE DOUBT. 
THIS NOTION-BASIC IN OUR LAW AND RIGHTLY ONE OF THE BOASTS OF A FREE
SOCIETY-- IS A REQUIREMENT AND A SAFEGUARD OF DUE PROCESS OF LAW IN THE
HISTORIC, PROCEDURAL CONTENT OF 'DUE PROCESS.'"  LELAND V. OREGON,
SUPRA, AT 802-803 (DISSENTING OPINION).  IN A SIMILAR VEIN, THE COURT
SAID IN BRINEGAR V. UNITED STATES, SUPRA, AT 174, THAT "(GUILT IN A
CRIMINAL CASE MUST BE PROVED BEYOND A REASONABLE DOUBT AND BY EVIDENCE
CONFINED TO THAT WHICH LONG EXPERIENCE IN THE COMMON-LAW TRADITION, TO
SOME EXTENT EMBODIED IN THE CONSTITUTION, HAS CRYSTALLIZED INTO RULES
OF EVIDENCE CONSISTENT WITH THAT STANDARD.  THESE RULES ARE
HISTORICALLY GROUNDED RIGHTS OF OUR SYSTEM, DEVELOPED TO SAFEGUARD MEN
FROM DUBIOUS AND UNJUST CONVICTIONS, WITH RESULTING FORFEITURES OF
LIFE, LIBERTY AND PROPERTY."  DAVIS V. UNITED STATES, SUPRA, AT 488,
STATED THAT THE REQUIREMENT IS IMPLICIT IN "CONSTITUTIONS . . . (WHICH)
RECOGNIZE THE FUNDAMENTAL PRINCIPLES THAT ARE DEEMED ESSENTIAL FOR THE
PROTECTION OF LIFE AND LIBERTY."  IN DAVIS A MURDER CONVICTION WAS
REVERSED BECAUSE THE TRIAL JUDGE INSTRUCTED THE JURY THAT IT WAS THEIR
DUTY TO CONVICT WHEN THE EVIDENCE WAS EQUALLY BALANCED REGARDING THE
SANITY OF THE ACCUSED.  THIS COURT SAID:  "ON THE CONTRARY, HE IS
ENTITLED TO AN ACQUITTAL OF THE SPECIFIC CRIME CHARGED IF UPON ALL THE
EVIDENCE THERE IS REASONABLE DOUBT WHETHER HE WAS CAPABLE IN LAW OF
COMMITTING CRIME.  . . . NO MAN SHOULD BE DEPRIVED OF HIS LIFE UNDER
THE FORMS OF LAW UNLESS THE JURORS WHO TRY HIM ARE ABLE, UPON THEIR
CONSCIENCES, TO SAY THAT THE EVIDENCE BEFORE THEM . . . IS SUFFICIENT
TO SHOW BEYOND A REASONABLE DOUBT THE EXISTENCE OF EVERY FACT NECESSARY
TO CONSTITUTE THE CRIME CHARGED."  ID., AT 484, 493. 

THE REASONABLE-DOUBT STANDARD PLAYS A VITAL ROLE IN THE AMERICAN
SCHEME OF CRIMINAL PROCEDURE.  IT IS A PRIME INSTRUMENT FOR REDUCING
THE RISK OF CONVICTIONS RESTING ON FACTUAL ERROR.  THE STANDARD
PROVIDED CONCRETE SUBSTANCE FOR THE PRESUMPTION OF INNOCENCE-- THAT
BEDROCK "AXIOMATIC AND ELEMENTARY" PRINCIPLE WHOSE "ENFORCEMENT LIES AT
THE FOUNDATION OF THE ADMINISTRATION OF OUR CRIMINAL LAW."  COFFIN V.
UNITED STATES, SUPRA, AT 453.  AS THE DISSENTERS IN THE NEW YORK COURT
OF APPEALS OBSERVED, AND WE AGREE, "A PERSON ACCUSED OF A CRIME . . .
WOULD BE AT A SEVERE DISADVANTAGE, A DISADVANTAGE AMOUNTING TO A LACK
OF FUNDAMENTAL FAIRNESS, IF HE COULD BE ADJUDGED GUILTY AND IMPRISONED
FOR YEARS ON THE STRENGTH OF THE SAME EVIDENCE AS WOULD SUFFICE IN A
CIVIL CASE."  24 N.Y. 2D,AT 205, 247 N.E. 2D,AT 259. 

THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT HAS THIS VITAL
ROLE IN OUR CRIMINAL PROCEDURE FOR COGENT REASONS.  THE ACCUSED DURING
A CRIMINAL PROSECUTION HAS AT STAKE INTERESTS OF IMMENSE IMPORTANCE,
BOTH BECAUSE OF THE POSSIBILITY THAT HE MAY LOSE HIS LIBERTY UPON
CONVICTION AND BECAUSE OF THE CERTAINTY THAT HE WOULD BE STIGMATIZED BY
THE CONVICTION.  ACCORDINGLY, A SOCIETY THAT VALUES THE GOOD NAME AND
FREEDOM OF EVERY INDIVIDUAL SHOULD NOT CONDEMN A MAN FOR COMMISSION OF
A CRIME WHEN THERE IS REASONABLE DOUBT ABOUT HIS GUILT.  AS WE SAID IN
SPEISER V. RANDALL, SUPRA, AT 525-526:  "THERE IS ALWAYS IN LITIGATION
A MARGIN OF ERROR, REPRESENTING ERROR IN FACTFINDING, WHICH BOTH
PARTIES MUST TAKE INTO ACCOUNT.  WHERE ONE PARTY HAS AT STAKE AN
INTEREST OF TRANSCENDING VALUE-- AS A CRIMINAL DEFENDANT HIS LIBERTY--
THIS MARGIN OF ERROR IS REDUCED AS TO HIM BY THE PROCESS OF PLACING ON
THE OTHER PARTY THE BURDEN OF . . . PERSUADING THE FACTFINDER AT THE
CONCLUSION OF THE TRIAL OF HIS GUILT BEYOND A REASONABLE DOUBT.  DUE
PROCESS COMMANDS THAT NO MAN SHALL LOSE HIS LIBERTY UNLESS THE
GOVERNMENT HAS BORNE THE BURDEN OF . . . CONVINCING THE FACTFINDER OF
HIS GUILT."  TO THIS END, THE REASONABLE-DOUBT STANDARD IS
INDISPENSABLE, FOR IT "IMPRESSES ON THE TRIER OF FACT THE NECESSITY OF
REACHING A SUBJECTIVE STATE OF CERTITUDE OF THE FACTS IN ISSUE." 
DORSEN & REZNECK, IN RE GAULT AND THE FUTURE OF JUVENILE LAW, 1 FAMILY
LAW QUARTERLY, NO. 4, PP. 1, 26 (1967). 

MOREOVER, USE OF THE REASONABLE-DOUBT STANDARD IS INDISPENSABLE TO
COMMAND THE RESPECT AND CONFIDENCE OF THE COMMUNITY IN APPLICATIONS OF
THE CRIMINAL LAW.  IT IS CRITICAL THAT THE MORAL FORCE OF THE CRIMINAL
LAW NOT BE DILUTED BY A STANDARD OF PROOF THAT LEAVES PEOPLE IN DOUBT
WHETHER INNOCENT MEN ARE BEING CONDEMNED.  IT IS ALSO IMPORTANT IN OUR
FREE SOCIETY THAT EVERY INDIVIDUAL GOING ABOUT HIS ORDINARY AFFAIRS
HAVE CONFIDENCE THAT HIS GOVERNMENT CANNOT ADJUDGE HIM GUILTY OF A
CRIMINAL OFFENSE WITHOUT CONVINCING A PROPER FACTFINDER OF HIS GUILT
WITH UTMOST CERTAINTY. 

LEST THERE REMAIN ANY DOUBT ABOUT THE CONSTITUTIONAL STATURE OF THE
REASONABLE-DOUBT STANDARD, WE EXPLICITLY HOLD THAT THE DUE PROCESS
CLAUSE PROTECTS THE ACCUSED AGAINST CONVICTION EXCEPT UPON PROOF BEYOND
A REASONABLE DOUBT OF EVERY FACT NECESSARY TO CONSTITUTE THE CRIME WITH
WHICH HE IS CHARGED. 

        II 

WE TURN TO THE QUESTION WHETHER JUVENILES, LIKE ADULTS, ARE
CONSTITUTIONALLY ENTITLED TO PROOF BEYOND A REASONABLE DOUBT WHEN THEY
ARE CHARGED WITH VIOLATION OF A CRIMINAL LAW.  THE SAME CONSIDERATIONS
THAT DEMAND EXTREME CAUTION IN FACTFINDING TO PROTECT THE INNOCENT
ADULT APPLY AS WELL TO THE INNOCENT CHILD.  WE DO NOT FIND CONVINCING
THE CONTRARY ARGUMENTS OF THE NEW YORK COURT OF APPEALS.  GAULT
RENDERED UNTENABLE MUCH OF THE REASONING RELIED UPON BY THAT COURT TO
SUSTAIN THE CONSTITUTIONALITY OF SEC. 774(B).  THE COURT OF APPEALS
INDICATED THAT A DELINQUENCY ADJUDICATION "IS NOT A 'CONVICTION' (SEC.
781); THAT IT AFFECTS NO RIGHT OR PRIVILEGE, INCLUDING THE RIGHT TO
HOLD PUBLIC OFFICE OR TO OBTAIN A LICENSE (SEC. 782); AND A CLOAK OF
PROTECTIVE CONFIDENTIALITY IS THROWN AROUND ALL THE PROCEEDINGS (SECS.
783-784)."  24 N.Y.2D,AT 200, 247 N.E.2D,AT 255-256.  THE COURT SAID
FURTHER:  "THE DELINQUENCY STATUS IS NOT MADE A CRIME; AND THE
PROCEEDINGS ARE NOT CRIMINAL.  THERE IS, HENCE, NO DEPRIVATION OF DUE
PROCESS IN THE STATUTORY PROVISION (CHALLENGED BY APPELLANT) . . . . "
24 N.Y.2D,AT 203, 247 N.E.2D,AT 257.  IN EFFECT THE COURT OF APPEALS
DISTINGUISHED THE PROCEEDINGS IN QUESTION HERE FROM A CRIMINAL
PROSECUTION BY USE OF WHAT GAULT CALLED THE "'CIVIL'  LABEL-OF
CONVENIENCE WHICH HAS BEEN ATTACHED TO JUVENILE PROCEEDINGS."  387
U.S.,AT 50.  BUT GAULT EXPRESSLY REJECTED THAT DISTINCTION AS A REASON
FOR HOLDING THE DUE PROCESS CLAUSE INAPPLICABLE TO A JUVENILE
PROCEEDING.  387 U.S.,AT 50-51.  THE COURT OF APPEALS ALSO ATTEMPTED TO
JUSTIFY THE PREPONDERANCE STANDARD ON THE RELATED GROUND THAT JUVENILE
PROCEEDINGS ARE DESIGNED "NOT TO PUNISH, BUT TO SAVE THE CHILD."  24
N.Y.2D,AT 197, 247 N.E.2D,AT 254.  AGAIN, HOWEVER, GAULT EXPRESSLY
REJECTED THIS JUSTIFICATION.  387 U.S.,AT 27.  WE MADE CLEAR IN THAT
DECISION THAT CIVIL LABELS AND GOOD INTENTIONS DO NOT THEMSELVES
OBVIATE THE NEED FOR CRIMINAL DUE PROCESS SAFEGUARDS IN JUVENILE
COURTS, FOR "(A) PROCEEDING WHERE THE ISSUE IS WHETHER THE CHILD WILL
BE FOUND TO BE 'DELINQUENT' AND SUBJECTED TO THE LOSS OF HIS LIBERTY
FOR YEARS IS COMPARABLE IN SERIOUSNESS TO A FELONY PROSECUTION."  ID.,
AT 36. 

NOR DO WE PERCEIVE ANY MERIT IN THE ARGUMENT THAT TO AFFORD
JUVENILES THE PROTECTION OF PROOF BEYOND A REASONABLE DOUBT WOULD RISK
DESTRUCTION OF BENEFICIAL ASPECTS OF THE JUVENILE PROCESS.  /4/  USE OF
THE REASONABLE-DOUBT STANDARD DURING THE ADJUDICATORY HEARING WILL NOT
DISTURB NEW YORK'S POLICIES THAT A FINDING THAT A CHILD HAS VIOLATED A
CRIMINAL LAW DOES NOT CONSTITUTE A CRIMINAL CONVICTION, THAT SUCH A
FINDING DOES NOT DEPRIVE THE CHILD OF HIS CIVIL RIGHTS, AND THAT
JUVENILE PROCEEDINGS ARE CONFIDENTIAL.  NOR WILL THERE BE ANY EFFECT ON
THE INFORMALITY, FLEXIBILITY, OR SPEED OF THE HEARING AT WHICH THE
FACTFINDING TAKES PLACE.  AND THE OPPORTUNITY DURING THE POST
ADJUDICATORY OR DISPOSITIONAL HEARING FOR A WIFE-RANGING REVIEW OF THE
CHILD'S SOCIAL HISTORY AND FOR HIS INDIVIDUALIZED TREATMENT WILL REMAIN
UNIMPAIRED.  SIMILARLY, THERE WILL BE NO EFFECT ON THE PROCEDURES
DISTINCTIVE TO JUVENILE PROCEEDINGS THAT ARE EMPLOYED PRIOR TO THE
ADJUDICATORY HEARING. 

THE COURT OF APPEALS OBSERVED THAT "A CHILD'S BEST INTEREST IS NOT
NECESSARILY, OR EVEN PROBABLY, PROMOTED IF HE WINS IN THE PARTICULAR
INQUIRY WHICH MAY BRING HIM TO THE JUVENILE COURT."  24 N.Y.2D,AT 199,
247 N.E.2D,AT 255.  IT IS TRUE, OF COURSE, THAT THE JUVENILE MAY BE
ENGAGING IN A GENERAL COURSE OF CONDUCT INIMICAL TO HIS WELFARE THAT
CALLS FOR JUDICIAL INTERVENTION.  BUT THAT INTERVENTION CANNOT TAKE THE
FORM OF SUBJECTING THE CHILD TO THE STIGMA OF A FINDING THAT HE
VIOLATED A CRIMINAL LAW /5/  AND TO THE POSSIBILITY OF INSTITUTIONAL
CONFINEMENT ON PROOF INSUFFICIENT TO CONVICT HIM WERE HE AN ADULT. 
WE CONCLUDE, AS WE CONCLUDED REGARDING THE ESSENTIAL DUE PROCESS
SAFEGUARDS APPLIED IN GAULT, THAT THE OBSERVANCE OF THE STANDARD OF
PROOF BYOND A REASONABLE DOUBT "WILL NOT COMPEL THE STATES TO ABANDON
OR DISPLACE ANY OF THE SUBSTANTIVE BENEFITS OF THE JUVENILE PROCESS." 
GAULT, SUPRA, AT 21. 

FINALLY, WE REJECT THE COURT OF APPEALS' SUGGESTION THAT THERE IS,
IN ANY EVENT, ONLY A "TENUOUS DIFFERENCE" BETWEEN THE REAS NABLE-DOUBT
AND PREPONDERANCE STANDARDS.  THE SUGGESTION IS SINGULARLY
UNPERSUASIVE.  IN THIS VERY CASE, THE TRIAL JUDGE'S ABILITY TO
DISTINGUISH BETWEEN THE TWO STANDARDS ENABLED HIM TO MAKE A FINDING OF
GUILT THAT HE CONCEDED HE MIGHT NOT HAVE MADE UNDER THE STANDARD OF
PROOF BEYOND A REASONABLE DOUBT.  INDEED, THE TRIAL JUDGE'S ACTION
EVIDENCES THE ACCURACY OF THE OBSERVATION OF COMMENTATORS THAT "THE
PREPONDERANCE TEST IS SUSCEPTIBLE TO THE MISINTERPRETATION THAT IT
CALLS ON THE TRIER OF FACT MERELY TO PERFORM AN ABSTRACT WEIGHING OF
THE EVIDENCE IN ORDER TO DETERMINE WHICH SIDE HAS PRODUCED THE GREATER
QUANTUM, WITHOUT REGARD TO ITS EFFECT IN CONVINCING HIS MIND OF THE
TRUTH'F THE PROPOSITON ASSERTED."  DORSEN & REZNECK, SUPRA, AT 26-27. 
/6/

III 

IN SUM, THE CONSTITUTIONAL SAFEGUARD OF PROOF BEYOND A REASONABLE
DOUBT IS AS MUCH REQUIRED DURING THE ADJUDICATORY STAGE OF A
DELINQUENCY PROCEEDING AS ARE THOSE CONSTITUTIONAL SAFEGUARDS APPLIED
IN GAULT-- NOTICE OF CHARGES, RIGHT TO COUNSEL, THE RIGHTS OF
CONFRONTATION AND EXAMINATION, AND THE PRIVILEGE AGAINST SELF
INCRIMINATION.  WE THEREFORE HOLD, IN AGREEMENT WITH CHIEF JUDGE FULD
IN DISSENT IN THE COURT OF APPEALS, "THAT, WHERE A 12-YEAR-OLD CHILD IS
CHARGED WITH AN ACT OF STEALING WHICH RENDERS HIM LIABLE TO CONFINEMENT
FOR AS LONG AS SIX YEARS, THEN, AS A MATTER OF DUE PROCESS . . . THE
CASE AGAINST HIM MUST BE PROVED BEYOND A REASONABLE DOUBT."  24
N.Y.2D,AT 207, 247 N.E.2D,AT 260. 

              REVERSED. 

/1/  THUS, WE DO NOT SEE HOW IT CAN BE SAID IN DISSENT THAT THIS
OPINION "RESTS ENTIRELY ON THE ASSUMPTION THAT ALL JUVENILE PROCEEDINGS
ARE 'CRIMINAL PROSECUTIONS,' HENCE SUBJECT TO CONSTITUTIONAL
LIMITATIONS."  AS IN GAULT, "WE ARE NOT HERE CONCERNED WITH . . . THE
PRE-JUDICIAL STAGES'F THE JUVENILE PROCESS, NOR DO WE DIRECT OUR
ATTENTION TO THE POST-ADJUDICATIVE OF DISPOSITIONAL PROCESS."  387
U.S., AT 13.  IN NEW YORK, THE ADJUDICATORY STAGE OF A DELINQUENCY
PROCEEDING IS CLEARLY DISTINCT FROM BOTH THE PRELIMINARY PHASE OF THE
JUVENILE PROCESS AND FROM ITS DISPOSITIONAL STAGE.  SEE N.Y. FAMILY
COURT ACT SECS. 731-749.  SIMILARLY, WE INITIMATE NO VIEW CONCERNING
THE CONSTITUTIONALITY OF THE NEW YORK PROCEDURES GOVERNING CHILDREN "IN
NEED OF SUPERVISION."  SEE ID., AT SECS. 711-712, 742-745.  NOR DO WE
CONSIDER WHETHER THERE ARE OTHER "ESSENTIALS OF DUE PROCESS AND FAIR
TREATMENT" REQUIRED DURING THE ADJUDICATORY HEARING OF A DELINQUENCY
PROCEEDING.  FINALLY, WE HAVE NO OCCASION TO CONSIDER APPELLANT'S
ARGUMENT THAT SEC. 744(B) IS A VIOLATION OF THE EQUAL PROTECTION
CLAUSE, AS WELL AS A DENIAL OF DUE PROCESS. 

/2/  THE RULING APPEARS IN THE FOLLOWING PORTION OF THE HEARING
TRANSCRIPT: 

COUNSEL:  "YOUR HONOR IS MAKING A FINDING BY THE PREPONDERANCE OF
THE EVIDENCE." 

COURT:  "WELL, IT CONVINCES ME." 

COUNSEL:  "IT'S NOT BEYOND A REASONABLE DOUBT, YOUR HONOR." 

COURT:  "THAT IS TRUE . . . . OUR STATUTE SAYS A PREPONDERANCE AND A
PREPONDERANCE IT IS." 

/3/  ACCORD, E.G., IN RE DENNIS M., 70 CAL.2D 444, 450 P.2D 296
(1969); IN RE ELLIS, 253 A.2D 789 (D.C. CT. APP. 1969); STATE V.
ARENAS, 253 ORE.  215.  453 P.2D 915 (1969); STATE V. SANTANA, 444
S.W.2D 614 (TEXAS 1969).  CONTRA, UNITED STATES V. COSTANZO, 395 F.2D
441 (C.A. 4TH CIR. 1968); IN RE URBASEK, 38 ILL.2D 535, 232 N.E.2D 716
(1967); JONES V. COMMONWEALTH, 185 VA. 335, 38 S.E.2D 444 (1946); N.D.
CENT. CODE SEC. 27-20-29(2) (SUPP. 1969); COLO. REV. STAT. ANN. SEC. 22
3-6(1) (1967); MD. ANN. CODE, ART. 26, SEC. 70-18(A) (SUPP. 1969); N.J.
CT. RULE 6:9(1)(F) (1967); WASH. SUP. CT., JUV.  CT. RULE SEC. 4.4(B)
(1969); CF. IN RE AGLER, 19 OHIO ST.2D 70, 249 N.E.2D 808 (1969). 

LEGISLATIVE ADIPTION OF THE REASONABLE-DOUBT STANDARD HAS BEEN URGED
BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS AND
BY THE CHILDREN'S BUREAU OF THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE'S SOCIAL AND REHABILITATION SERVICE.  SEE UNIFORM JUVENILE
COURT ACT SEC. 29(B) (1968); CHILDREN'S BUREAU, SOCIAL AND
REHABILITATION SERVICE, U.S. DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, LEGISLATIVE GUIDE FOR DRAFTING FAMILY AND JUVENILE COURT ACTS
SEC. 32(C) (1969).  CF. THE PROPOSAL OF THE NATIONAL COUNCIL ON CRIME
AND DELINQUENCY THAT A "CLEAR AND CONVINCING" STANDARD BY ADOPTED. 
MODEL RULES FOR JUVENILE COURTS, RULE 26, P. 57 (1969).  SEE GENERALLY
COHEN, THE STANDARD OF PROOF IN JUVENILE PROCEEDINGS:  GAULT BEYOND A
REASONABLE DOUBT, 68 MICH.L.REV.  567 (1970). 

/4/  APPELLEE, NEW YORK CITY, APPARENTLY CONCEDES AS MUCH IN ITS
BRIEF, PAGE 8, WHERE IT STATES: 

"A DETERMINATION THAT THE NEW YORK LAW UNCONSTITUTIONALLY DENIES DUE
PROCESS BECAUSE IT DOES NOT PROVIDE FOR USE OF THE REASONABLE DOUBT
STANDARD PROBABLY WOULD NOT HAVE A SERIOUS IMPACT IF ALL THAT RESULTED
WOULD BE A CHANGE IN THE QUANTUM OF PROOF." 

AND DORSEN & REZNECK, SUPRA, AT 27, HAVE OBSERVED: 

"(THE REASONABLE DOUBT TEST IS SUPERIOR TO ALL OTHERS IN PROTECTING
AGAINST AN UNJUST ADJUDICATION OF GUILT, AND THAT IS AS MUCH A CONCERN
OF THE JUVENILE COURT AS OF THE CRIMINAL COURT.  IT IS DIFFICULT TO SEE
HOW THE DISTINCTIVE OBJECTIVES OF THE JUVENILE COURT GIVE RISE TO A
LEGITIMATE INSTITUTIONAL INTEREST IN FINDING A JUVENILE TO HAVE
COMMITTED A VIOLATION OF THE CRIMINAL LAW ON LESS EVIDENCE THAN IF HE
WERE AN ADULT." 

/5/  THE MORE COMPREHENSIVE AND EFFECTIVE THE PROCEDURES USED TO
PREVENT PUBLIC DISCLOSURE OF THE FINDING, THE LESS THE DANGER OF
STIGMA.  AS WE INDICATED IN GAULT, HOWEVER, OFTEN THE "CLAIM OF SECRECY
. . . IS MORE RHETORIC THAN REALITY."  387 U.S., AT 24. 

/6/  COMPARE THIS COURT'S REJECTION OF THE PREPONDERANCE STANDARD IN
DEPORTATION PROCEEDINGS, WHERE WE RULED THAT THE GOVERNMENT MUST
SUPPORT ITS ALLEGATIONS WITH "CLEAR, UNEQUIVOCAL, AND CONVINCING
EVIDENCE."  WOODBY V. IMMIGRATION AND NATURALIZATION SERVICE, 385 U.S.
276, 285 (1966).  ALTHOUGH WE RULED IN WOODBY THAT DEPORTATION IS NOT
TANTAMOUNT TO A CRIMINAL CONVICTION, WE FOUND THAT SINCE IT COULD LEAD
TO "DRASTIC DEPRIVATIONS," IT IS IMPERMISSIBLE FOR A PERSON TO BE
"BANISHED FROM THIS COUNTRY UPON NO HIGHER DEGREE OF PROOF THAN APPLIES
IN A NEGLIGENCE CASE."  IBID. 

MR. JUSTICE HARLAN, CONCURRING. 

NO ONE, I DARESAY, WOULD CONTEND THAT STATE JUVENILE COURT TRIALS
ARE SUBJECT TO NO FEDERAL CONSTITUTIONAL LIMITATIONS.  DIFFERENCES HAVE
EXISTED, HOWEVER, AMONG THE MEMBERS OF THIS COURT AS TO WHAT
CONSTITUTIONAL PROTECTIONS DO APPLY.  SEE IN RE GAULT, 387 U.S. 1
(1967). 

THE PRESENT CASE DRAWS IN QUESTION THE VALIDITY OF A NEW YORK
STATUTE THAT PERMITS A DETERMINATION OF JUVENILE DELINQUENCY, FOUNDED
ON A CHARGE OF CRIMINAL CONDUCT, TO BE MADE ON A STANDARD OF PROOF THAT
IS LESS RIGOROUS THAN THAT WHICH WOULD OBTAIN HAD THE ACCUSED BEEN
TRIED FOR THE SAME CONDUCT IN AN ORDINARY CRIMINAL CASE.  WHILE I AM IN
FULL AGREEMENT THAT THIS STATUTORY PROVISION OFFENDS THE REQUIREMENTS
OF FUNDAMENTAL FAIRNESS EMBODIED IN THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, I AM CONSTRAINED TO ADD SOMETHING TO WHAT MY
BROTHER BRENNAN HAS WRITTEN FOR THE COURT, LEST THE TRUE NATURE OF THE
CONSTITUTIONAL PROBLEM PRESENTED BECOME OBSCURED OR THE IMPACT ON STATE
JUVENILE COURT SYSTEMS OF WHAT THE COURT HOLDS TODAY BE EXAGGERATED. 

        I 

PROFESSOR WIGMORE, IN DISUCSSING THE VARIOUS ATTEMPTS BY COURTS TO
DEFINE HOW CONVINCED ONE MUST BE TO BE CONVINCED BEYOND A REASONABLE
DOUBT, WRYLY OBSERVED:  "THE TRUTH IS THAT NO ONE HAS YET INVENTED OR
DISCOVERED A MODE OF MEASUREMENT FOR THE INTENSITY OF HUMAN BELIEF. 
HENCE THERE CAN BE YET NO SUCCESSFUL METHOD OF COMMUNICATING
INTELLIGIBLY . . . A SOUND METHOD OF SELF-ANALYSIS FOR ONE'S BELIEF," 9
J. WIGMORE, EVIDENCE 325 (3D ED. 1940).  /1/ 

NOTWITHSTANDING PROFESSOR WIGMORE'S SKEPTICISM, WE HAVE BEFORE US A
CASE WHERE THE CHOICE OF THE STANDARD OF PROOF HAS MADE A DIFFERENCE:
THE JUVENILE COURT JUDGE BELOW FORTHRIGHTLY ACKNOWLEDGED THAT HE
BELIEVED BY A PREPONDERANCE OF THE EVIDENCE, BUT WAS NOT CONVINCED
BEYOND A REASONABLE DOUBT, THAT APPELLANT STOLE $112 FROM THE
COMPLAINANT'S POCKETBOOK.  MOREOVER, EVEN THOUGH THE LABELS USED FOR
ALTERNATIVE STANDARDS OF PROOF ARE VAGUE AND NOT A VERY SURE GUIDE TO
DECISIONMAKING, THE CHOICE OF THE STANDARD FOR A PARTICULAR VARIETY OF
ADJUDICATION DOES, I THINK, REFLECT A VERY FUNDAMENTAL ASSESSMENT OF
THE COMPARATIVE SOCIAL COSTS OF ERRONEOUS FACTUAL DETERMINATIONS.  /2/ 

TO EXPLAIN WHY I THINK THIS SO, I BEGIN BY STATING TWO PROPOSITIONS,
NEITHER OF WHICH I BELIEVE CAN BE FAIRLY DISPUTED.  FIRST, IN A
JUDICIAL PROCEEDING IN WHICH THERE IS A DISPUTE ABOUT THE FACTS OF SOME
EARLIER EVENT, THE FACTFINDER CANNOT ACQUIRE UNASSAILABLY ACCURATE
KNOWLEDGE OF WHAT AHPPENED.  INSTEAD, ALL THE FACTFINDER CAN ACQUIRE IS
A BELIEF OF WHAT PROBABLY HAPPENED.  THE INTENSITY OF THIS BELIEF-- THE
DEGREE TO WHICH A FACTFINDER IS CONVINCED THAT A GIVEN ACT ACTUALLY
OCCURRED-- CAN, OF COURSE, VARY.  IN THIS REGARD, A STANDARD OF PROOF
REPRESENTS AN ATTEMPT TO INSTRUCT THE FACTFINDER CONCERNING THE DEGREE
OF CONFIDENCE OUR SOCIETY THINKS HE SHOULD HAVE IN THE CORRECTNESS OF
FACTUAL CONCLUSIONS FOR A PARTICULAR TYPE OF ADJUDICATION.  ALTHOUGH
THE PHRASES "PREPONDERANCE OF THE EVIDENCE" AND "PROOF BEYOND A
REASONABLE DOUBT" ARE QUANTITATIVELY IMPRECISE, THEY DO COMMUNICATE TO
THE FINDER OF FACT DIFFERENT NOTIONS CONCERNING THE DEGREE OF
CONFIDENCE HE IS EXPECTED TO HAVE IN THE CORRECTNESS OF HIS FACTUAL
CONCLUSIONS. 

A SECOND PROPOSITION, WHICH IS REALLY NOTHING MORE THAN A COROLLARY
OF THE FIRST, IS THAT THE TRIER OF FACT WILL SOMETIMES, DESPITE HIS
BEST EFFORTS, BE WRONG IN HIS FACTUAL CONCLUSIONS.  IN A LAWSUIT
BETWEEN TWO PARTIES, A FACTUAL ERROR CAN MAKE A DIFFERENCE IN ONE OF
TWO WAYS.  FIRST, IT CAN RESULT IN A JUDGMENT IN FAVOR OF THE PLAINTIFF
WHEN THE TRUE FACTS WARRANT A JUDGMENT FOR THE DEFENDANT.  THE ANALOGUE
IN A CRIMINAL CASE WOULD BE THE CONVICTION OF AN INNOCENT MAN.  ON THE
OTHER HAND, AN ERRONEOUS FACTUAL DETERMINATION CAN RESULT IN A JUDGMENT
FOR THE DEFENDANT WHEN THE TRUE FACTS JUSTIFY A JUDGMENT IN PLAINTIFF'S
FAVOR.  THE CRIMINAL ANALOGUE WOULD BE THE ACQUITTAL OF A GUILTY MAN. 

THE STANDARD OF PROOF INFLUENCES THE RELATIVE FREQUENCY OF THESE TWO
TYPES OF ERRONEOUS OUTCOMES.  IF, FOR EXAMPLE, THE STANDARD OF PROOF
FOR A CRIMINAL TRIAL WERE A PREPONDERANCE OF THE EVIDENCE RATHER THAN
PROOF BEYOND A REASONABLE DOUBT, THERE WOULD BE A SMALLER RISK OF
FACTUAL ERRORS THAT RESULT IN FREEING GUILTY PERSONS, BUT A FAR GREATER
RISK OF FACTUAL ERROS THAT RESULT IN CONVICTING THE INNOCENT.  BECAUSE
THE STANDARD OF PROOF AFFECTS THE COMPARATIVE FREQUENCY OF THESE TWO
TYPES OF ERRONEOUS OUTCOMES, THE CHOICE OF THE STANDARD TO BE APPLIED
IN A PARTICULAR KIND OF LITIGATION SHOULD, IN A RATIONAL WORLD, REFLECT
AN ASSESSMENT OF THE COMPARATIVE SOCIAL DISUTILITY OF EACH. 

WHEN ONE MAKES SUCH AN ASSESSMENT, THE REASON FOR DIFFERENT
STANDARDS OF PROOF IN CIVIL AS OPPOSED TO CRIMINAL LITIGATION BECOMES
APPARENT.  IN A CIVIL SUIT BETWEEN TWO PRIVATE PARTIES FOR MONEY
DAMAGES, FOR EXAMPLE, WE VIEW IT AS NO MORE SERIOUS IN GENERAL FOR
THERE TO BE AN ERRONEOUS VERDICT IN THE DEFENDANT'S FAVOR THAN FOR
THERE TO BE AN ERRONEOUS VERDICT IN THE PLAINTIFF'S FAVOR.  A
PREPONDERANCE OF THE EVIDENCE STANDARD THEREFORE SEEMS PECULIARLY
APPROPRIATE FOR, AS EXPLAINED MOST SENSIBLY, /3/  IT SIMPLY REQUIRES
THE TRIER OF FACT "TO BELIEVE THAT THE EXISTENCE OF A FACT IS MORE
PROBABLE THAN ITS NONEXISTENCE BEFORE (HE) MAY FIND IN FAVOR OF THE
PARTY WHO HAS THE BURDEN TO PERSUADE THE (JUDGE) OF THE FACT'S
EXISTENCE."  /4/ 

IN A CRIMINAL CASE, ON THE OTHER HAND, WE DO NOT VIEW THE SOCIAL
DISUTILITY OF CONVICTING AN INNOCENT MAN AS EQUIVALENT TO THE
DISUTILITY OF ACQUITTING SOMEONE WHO IS GUILTY.  AS MR. JUSTICE BRENNAN
WROTE FOR THE COURT IN SPEISER V. RANDALL, 357 U.S. 513, 525-526
(1958): 

"THERE IS ALWAYS IN LITIGATION A MARGIN OF ERROR, REPRESENTING ERROR
IN FACTFINDING, WHICH BOTH PARTIES MUST TAKE INTO ACCOUNT.  WHERE ONE
PARTY AHS AT STAKE AN INTEREST OF TRANSCENDING VALUE  AS A CRIMINAL
DEFENDANT HIS LIBERTY-- THIS MARGIN OF ERROR IS REDUCED AS TO HIM BY
THE PROCESS OF PLACING ON THE OTHER PARTY THE BURDEN . . . OF
PERSUADING THE FACTFINDER AT THE CONCLUSION OF THE TRIAL OF HIS GUILT
BEYOND A REASONABLE DOUBT." 

IN THIS CONTEXT, I VIEW THE REQUIREMENT OF PROOF BEYOND A REASONABLE
DOUBT IN A CRIMINAL CASE AS BOTTOMED ON A FUNDAMENTAL VALUE
DETERMINATION OF OUR SOCIETY THAT IT IS FAR WORSE TO CONVICT AN
INNOCENT MAN THAN TO LET A GUILTY MAN GO FREE.  IT IS ONLY BECAUSE OF
THE NEARLY COMPLETE AND LONG-STANDING ACCEPTANCE OF THE REASONABLE
DOUBT STANDARD BY THE STATES IN CRIMINAL TRIALS THT THE COURT HAS NOT
BEFORE TODAY HAD TO HOLD EXPLICITYLY THAT DUE PROCESS, AS AN EXPRESSION
OF FUNDAMENTAL PROCEDURAL FAIRNESS, /5/  REQUIRES A MORE STRINGENT
STANDARD FOR CRIMINAL TRIALS THAN FOR ORDINARY CIVIL LITIGATION. 

        II 

WHEN ONE ASSESSES THE CONSEQUENCES OF AN ERRONEOUS FACTUAL
DETERMINATION IN A JUVENILE DELINQUENCY PROCEEDING IN WHICH A YOUTH IS
ACCUSED OF A CRIME, I THINK IT MUST BE CONCLUDED THAT, WHILE THE
CONSEQUENCES ARE NOT IDENTICAL TO THOSE IN A CRIMINAL CASE, THE
DIFFERENCES WILL NOT SUPPORT A DISTINCTION IN THE STANDARD OF PROOF. 
FIRST, AND OF PARAMOUNT IMPORTANCE, A FACTUAL ERROR HERE, AS IN A
CRIMINAL CASE, EXPOSES THE ACCUSED TO A COMPLETE LOSS OF HIS PERSONAL
LIBERTY THROUGH A STATE-IMPOSED CONFINEMENT AWAY FROM HIS HOME, FAMILY,
AND FRIENDS.  AND, SECOND, A DELINQUENCY DETERMINATION, TO SOME EXTENT
AT LEAST, STIGMATIZES A YOUTH IN THAT IT IS BY DEFINITION BOTTOMED ON A
FINDING THAT THE ACCUSED COMMITTED A CRIME.  /6/  ALTHOUGH THERE ARE NO
DOUBT COSTS TO SOCIETY (AND POSSIBLY EVEN TO THE YOUTH HIMSELF) IN
LETTING A GUILTY YOUTH GO FREE, I THINK HERE, AS IN A CRIMINAL CASE, IT
IS FAR WORSE TO DECLARE AN INNOCENT YOUTH A DELINQUENT.  I THEREFORE
AGREE THAT A JUVENILE COURT JUDGE SHOULD BE NO LESS CONVINCED OF THE
FACTUAL CONCLUSION THAT THE ACCUSED COMMITTED THE CRIMINAL ACT WITH
WHICH HE IS CHARGED THAN WOULD BE REQUIRED IN A CRIMINAL TRIAL. 
III     I WISH TO EMPHASIZE, AS I DID IN MY SEPARATE OPINION IN
GAULT, 387 U.S. 1, 65, THAT THERE IS NO AUTOMATIC CONGRUENCE BETWEEN
THE PROCEDURAL REQUIREMENTS IMPOSED BY DUE PROCESS IN A CRIMINAL CASE,
AND THOSE IMPOSED BY DUE PROCESS IN JUVENILE CASES.  /7/  IT IS OF
GREAT IMPORTANCE, IN MY VIEW, THAT PROCEDURAL STRICTURES NOT BE
CONSTITUTIONALLY IMPOSED THAT JEOPARDIZE "THE ESSENTIAL ELEMENTS OF THE
STATE'S PURPOSE" IN CREATING JUVIENILE COURTS, ID., AT 72.  IN THE
REGARD, I THINK IT WORTH EMPHASIZING THAT THE REQUIREMENT OF PROOF
BEYOND A REASONABLE DOUBT THAT A JUVENILE COMMITTED A CRIMINAL ACT
BEFORE HE IS FOUND TO BE A DELINQUENT DOES NOT (1) INTERFERE WITH THE
WORTHY GOAL OF REHABILITATING THE JUVENILE, (2) MAKE ANY SIGNIFICANT
DIFFERENCE IN THE EXTENT TO WHICH A YOUTH IS STIGMATIZED AS A
"CRIMINAL" BECAUSE HE HAS BEEN FOUND TO BE A DELINQUENT, OR (3) BURDEN
THE JUVENILE COURTS WITH A PROCEDURAL REQUIREMENT THAT WILL MAKE
JUVENILE ADJUDICATIONS SIGNIFICANTLY MORE TIME CONSUMING, OR RIGID. 
TODAY'S DECISION SIMPLY REQUIRES A JUVENILE COURT JUDGE TO BE MORE
CONFIDENT IN HIS BELIEF THT THE YOUTH DID THE ACT WITH WHICH HE HAS
BEEN CHARGED. 

WITH THESE OBSERVATIONS, I JOIN THE COURT'S OPINION, SUBJECT ONLY TO
THE CONSTITUTIONAL RESERVATIONS EXPRESSED IN MY OPINION IN GAULT. 

/1/  SEE ALSO PAULSEN, JUVENILE COURTS AND THE LEGACY OF '67, 43
IND.L.J. 527, 551-552 (1968). 

/2/  FOR AN INTERESTING ANALYSIS OF STANDARDS OF PROOF SEE KAPLAN,
DECISION THEORY AND THE FACTFINDING PROCESS, 20 STAN.L.REV.  1065, 1071
1077 (1968). 

/3/  THE PREPONDERANCE TEST HAS BEEN CRITICIZED, JUSTIFIABLY IN MY
VIEW, WHEN IT IS READ AS ASKING THE TRIER OF FACT TO WEIGH IN SOME
OBJECTIVE SENSE THE QUANTITY OF EVIDENCE SUBMITTED BY EACH SIDE RATHER
THAN ASKING HIM TO DECIDE WHAT HE BELIEVES MOST PROBABLY HAPPENED.  SEE
J. MAGUIRE, EVIDENCE, COMMON SENSE AND COMMON LAW 180 (1947). 

/4/  F. JAMES, CIVIL PROCEDURE 250-251 (1965); SEE E. MORGAN, SOME
PROBLEMS OF PROOF UNDER THE ANGLO-AMERICAN SYSTEM OF LITIGATION 84-85
(1956). 

/5/  IN DISSENT MY BROTHER BLACK AGAIN ARGUES THAT, APART FROM THE
SPECIFIC PROHIBITIONS OF THE FIRST EIGHT AMENDMENTS, ANY PROCEDURE
SPELLED OUT BY A LEGISLATURE-- NO MATTER HOW UNFAIR-- PASSES
CONSTITUTIONAL MUSTER UNDER THE DUE PROCESS CLAUSE.  HE BOTTOMS HIS
CONCLUSION ON HISTORY THT HE CLAIMS DEMONSTRATES (1) THAT DUE PROCESS
MEANS "LAW OF THE LAND"; (2) THAT ANY LEGISLATIVE ENACTMENT, IPSO
FACTO, IS PART OF THE LAW OF THELAND; AND (3) THAT THE FOURTEENTH
AMENDMENT INCORPORATES THE PROHIBITIONS OF THE BILL OF RIGHTS AND
APPLIES THEM TO THE STATES.  I CANNOT REFRAIN FROM EXPRESSING MY
CONTINUED BAFFLEMENT AT MY BROTHER BLACK'S INSISTENCE THAT DUE PROCESS,
WHETHER UNDER THE FOURTEENTH AMENDMENT OR THE FIFTH AMENDMENT, DOES NOT
EMBODY A CONCEPT OF FUNDAMENTAL FAIRNESS AS PART OF OUR SCHEME OF
CONSTITUTIONALLY ORDERED LIBERTY.  HIS THESIS FLIES IN THE FACE OF A
COURSE OF JUDICIAL HISTORY REFLECTED IN AN UNBROKEN LINE OF OPINIONS
THAT HAVE INTERPRETED DUE PROCESS TO IMPOSE RESTRAINTS ON THE
PROCEDURES GOVERNMENT MAY ADOPT IN ITS DEALING WITH ITS CITIZENS, SEE,
E.G., THE CASES CITED IN MY DISSENTING OPINIONS IN POE V. ULLMAN, 367
U.S. 497, 522, 539-545 (1961); DUNCAN V. LOUISIANA, 391 U.S. 145, 171
(1968); AS WELL AS THE UNCONTROVERTED SCHOLARLY RESEARCH
(NOTWITHSTANDING H. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT
(1908)), RESPECTING THE INTENDMENT OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, SEE FAIRMAN, DOES THE FOURTEENTH AMENDMENT
INCORPORATE THE BILL OF RIGHTS?  THE ORIGINAL UNDERSTANDING, 2
STAN.L.REV.  5 (1949).  INDEED, WITH ALL RESPECT, THE VERY CASE CITED
IN BROTHER BLACK'S DISSENT AS ESTABLISHING THAT "DUE PROCESS OF LAW"
MEANS "LAW OF THE LAND" REJECTED THE ARGUMENT THAT ANY STATUTE, BY THE
MERE PROCESS OF ENACTMENT, MET THE REQUIREMENTS OF THE DUE PROCESS
CLAUSE.  IN MURRAY'S LESSEE V. HOBOKEN LAND & IMPROV.  CO., 18 HOW. 
272 (1856), AN ISSUE WAS WHETHER A "DISTRESS WARRANT" ISSUED BY THE
SOLICITOR OF THE TREASURY UNDER AN ACT OF CONGRESS TO COLLECT MONEY DUE
FOR TAXES OFFENDED THE DUE PROCESS CLAUSE.  JUSTICE CURTIS WROTE:
"THAT THE WARRANT NOW IN QUESTION IS LEGAL PROCESS, IS NOT DENIED.  IT
WAS ISSUED IN CONFORMITY WITH AN ACT OF CONGRESS.  BUT IS IT 'DUE
PROCESS OF LAW?'  THE CONSTITUTION CONTAINS NO DESCRIPTION OF THOSE
PROCESSES WHICH IT WAS INTNEDED TO ALLOW OR FORBID.  IT DOES NOT EVEN
DECLARE WHAT PRINCIPLES ARE TO BE APPLIED TO ASCERTAIN WHETHER IT BE
DUE PROCESS.  IT IS MANIFEST THAT IT WAS NOT LEFT TO THE LEGISLATIVE
POWER TO ENACT ANY PROCESS WHICH MIGHT BE DEVISED.  THE ARTICLE IS A
RESTRAINT ON THE LEGISLATIVE AS WELL AS ON THE EXECUTIVE AND JUDICIAL
POWERS OF THE GOVENMENT,AND CANNOT BE SO CONSTRUED AS TO LEAVE CONGRESS
FREE TO MAKE ANY PROCESS 'DUE PROCESS OF LAW,' BY ITS MERE WILL."  ID.,
AT 276. 

/6/  THE NEW YORK STATUTE WAS AMENDED TO DISTINGUISH BETWEEN A
"JUVENILE DELINQUENT," I.E., A YOUTH "WHO DOES ANY ACT WHICH, IF DONE
BY AN ADULT, WOULD CONSTITUTE A CRIME," N.Y. FAMILY COURT ACT SEC. 712
(1963), AND A "(PERSON IN NEED OF SUPERVISION" (PINS) WHO IS A PERSON
"WHO IS AN HABITUAL TRUANT OR WHO IS INCORRIGIBLE, UNGOVERNABLE OR
HABITUALLY DISOBEDIENT AND BEYOND THE LAWFUL CONTROL OF PARENT OR OTHER
LAWFUL AUTHORITY."  THE PINS CATEGORY WAS ESTABLISHED IN ORDER TO AVOID
THE STIGMA OF FINDING SOMEONE TO BE A "JUVENILE DELINQUENT" UNLESS HE
COMMITTED A CRIMINAL ACT.  THE LEGISLATIVE COMMITTEE REPORT STATED:
"'JUVENILE DELINQUENT' IS NOW A TERM OF DISAPPROVAL.  THE JUDGES OF THE
CHILDREN'S COURT AND THE DOMESTIC RELATIONS COURT OF COURSE ARE AWARE
OF THIS AND ALSO AWARE THAT GOVERNMENT OFFICIALS AND PRIVATE EMPLOYERS
OFTEN LEARN OF AN ADJUDICATION OF DELINQUENCY."  N.Y. JT. LEGISLATIVE
COMMITTEE ON COURT REORGANIZATION, THE FAMILY COURT ACT, PT. 2, P. 7
(1962).  MOREOVER, THE POWERS OF THE POLICE AND COURTS DIFFER IN THESE
TWO CATEGORIES OF CASES.  SEE ID., AT 7-9.  THUS, IN A PINS TYPE CASE,
THE CONSEQUENCES OF AN ERRONEOUS FACTUAL DETERMINATION ARE BY NO MEANS
IDENTICAL TO THOSE INVOLVED HERE. 

/7/  IN GAULT, FOR EXAMPLE, I AGREED WITH THE MAJORITY THAT DUE
PROCESS REQUIRED (1) ADEQUATE NOTICE OF THE "NATURE AND TERMS" OF THE
PROCEEDINGS; (2) NOTICE OF THE RIGHT TO RETAIN COUNSEL, AND AN
OBLIGATION ON THE STATE TO PROVIDE COUNSEL FOR INDIGENTS "IN CASES IN
WHICH THE CHILD MAY BE CONFINED"; AND (3) A WRITTEN RECORD "ADEQUATE TO
PERMIT EFFECTIVE REVIEW."  387 U.S., AT 72.  UNLIKE THE MAJORITY,
HOWEVER, I THOUGHT IT UNNECESSARY AT THE TIME OF GAULT TO IMPOSE THE
ADDITIONAL REQUIREMENTS OF THE PRIVILEGE AGAINST SELF-INCRIMINATION,
CONFRONTATION, AND CROSS-EXAMINATION. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE STEWART JOINS,
DISSENTING. 

THE COURT'S OPINION TODAY RESTS ENTIRELY ON THE ASSUMPTION THAT ALL
JUVENILE PROCEEDINGS ARE "CRIMINAL PROSECUTIONS," HENCE SUBJECT TO
CONSTITUTIONAL LIMITATIONS.  THIS DERIVES FROM EARLIER HOLDINGS, WHICH,
LIKE TODAY'S HOLDING, WERE STEPS ERODING THE DIFFERENCES BETWEEN
JUVENILE COURTS AND TRADITIONAL CRIMINAL COURTS.  THE ORIGINAL CONCEPT
OF THE JUVENILE COURT SYSTEM WAS TO PROVIDE A BENEVOLENT AND LESS
FORMAL MEANS THAN CRIMINAL COURTS COULD PROVIDE FOR DEALING WITH THE
SPECIAL AND OFTEN SENSITIVE PROBLEMS OF YOUTHFUL OFFENDERS.  SINCE I
SEE NO CONSTITUTIONAL REQUIREMENT OF DUE PROCESS SUFFICIENT TO OVERCOME
THE LEGISLATIVE JUDGMENT OF THE STATES IN THIS AREA, I DISSENT FROM
FURTHER STRAIT-JACKETING OF AN ALREADY OVERLY RESTRICTED SYSTEM.  WHAT
THE JUVENILE COURT SYSTEM NEEDS IS NOT MORE BUT LESS OF THE TRAPPINGS
OF LEGAL PROCEDURE AND JUDICIAL FORMALISM; THE JUVENILE COURT SYSTEM
REQUIRES BREATHING ROOM AND FLEXIBILITY IN ORDER TO SURVICE, IF IT CAN
SURVIVE THE REPEATED ASSAULTS FROM THIS COURT. 

MUCH OF THE JUDICIAL ATTITUDE MANIFESTED BY THE COURT'S OPINION
TODAY AND EARLIER HOLDINGS IN THIS FIELD IS REALLY A PROTEST AGAINST
INADEQUATE JUVENILE COURT STAFFS AND FACILITIES; WE "BURN DOWN THE
STABLE TO GET RID OF THE MICE."  THE LACK OF SUPPORT AND THE
DISTRESSING GROWTH OF JUVENILE CRIME HAVE COMBINED TO MAKE FOR A
LITERAL BREAKDOWN IN MANY IF NOT MOST JUVENILE COURTS.  CONSTITUTIONAL
PROBLEMS WERE NOT SEEN WHILE THOSE COURTS FUNCTIONED IN AN ATMOSPHERE
WHERE JUVENILE JUDGES WERE NOT CRUSHED WITH AN AVALANCHE OF CASES. 

MY HOPE IS THAT TODAY'S DECISION WILL NOT SPELL THE END OF A
GENEROUSLY CONCEIVED PROGRAM OF COMPASSIONATE TREATMENT INTENDED TO
MITIGATE THE RIGORS AND TRAUMA OF EXPOSING YOUTHFUL OFFENDERS TO A
TRADITIONAL CRIMINAL COURT; EACH STEP WE TAKE TURNS THE CLOCK BACK TO
THE PRE-JUVENILE-COURT ERA.  I CANNOT REGARD IT AS A MANIFESTATION OF
PROGRESS TO TRANSFORM JUVENILE COURTS INTO CRIMINAL COURTS, WHICH IS
WHAT WE ARE WELL ON THE WAY TO ACCOMPLISHING.  WE CAN ONLY HOPE THE
LEGISLATIVE RESPONSE WILL NOT REFLECT OUR OWN BY HAVING THESE COURTS
ABOLISHED. 

MR. JUSTICE BLACK, DISSENTING. 

THE MAJORITY STATES THAT "MANY OPINIONS OF THIS COURT INDICATE THAT
IT HAS LONG BEEN ASSUMED THAT PROOF OF A CRIMINAL CHARGE BEYOND A
REASONABLE DOUBT IS CONSTITUTIONALLY REQUIRED."  ANTE, AT 362.  I HAVE
JOINED IN SOME OF THOSE OPINIONS, AS WELL AS THE DISSENTING OPINION OF
MR. JUSTICE FRANKFURTER IN LELAND V. OREGON, 343 U.S. 790, 802 (1952). 
THE COURT HAS NEVER CLEARLY HELD, HOWEVER, THAT PROOF BEYOND A
REASONABLE DOUBT IS EITHER EXPRESSLY OR IMPLIEDLY COMMANDED BY ANY
PROVISION OF THE CONSTITUTION.  THE BILL OF RIGHTS, WHICH IN MY VIEW IS
MADE FULLY APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT, SEE
ADAMSON V. CALIFORNIA, 332 U.S. 46, 71-75 (1947) (DISSENTING OPINION),
DOES BY EXPRESS LANGUAGE PROVIDE FOR, AMONG OTHER THINGS, A RIGHT TO
COUNSEL IN CRIMINAL TRIALS, A RIGHT TO INDICTMENT, AND THE RIGHT OF A
DEFENDANT TO BE INFORMED OF THE NATURE OF THE CHARGES AGAINST HIM.  /1/
AND IN TWO PLACES THE CONSTITUTION PROVIDES FOR TRIAL BY JURY, /2/
BUT NOWHERE IN THAT DOCUMENT IS THERE ANY STATEMENT THAT CONVICTION OF
CRIME REQUIRES PROOF OF GUILT BEYOND A REASONABLE DOUBT.  THE
CONSTITUTION THUS GOES INTO SOME DETAIL TO SPELL OUT WHAT KIND OF TRIAL
A DEFENDANT CHARGED WITH CRIME WHOULD HAVE, AND I BELIEVE THE COURT HAS
NO POWER TO ADD TO OR SUBTRACT FROM THE PROCEDURES SET FORTH BY THE
FOUNDERS.  I REALIZE THAT IT IS FAR EASIER TO SUBSTITUTE INDIVIDUAL
JUDGES' IDEAS OF "FAIRNESS" FOR THE FAIRNESS PRESCRIBED BY THE
'CONSTITUTION, BUT I SHALL NOT AT ANY TIME SURRENDER MY BELIEF THAT
THAT DOCUMENT ITSELF SHOULD BE OUR GUIDE, NOT OUR OWN CONCEPT OF WHAT
IS FAIR, DECENT, AND RIGHT.  THAT THIS OLD "SHOCK-THE-CONSCIENCE" TEST
IS WHAT THE COURT IS RELYING ON, RATHER THAN THE WORDS OF THE
CONSTITUTION, IS CLEARLY ENOUGH REVEALED BY THE REFERENCE OF THE
MAJORITY TO "FAIR TREATMENT" AND TO THE STATEMENT BY THE DISSENTING
JUDGES IN THE NEW YORK COURT OF APPEALS THAT FAILURE TO REQUIRE PROOF
BEYOND A REASONABLE DOUBT AMOUNTS TO A "LACK OF FUNDAMENTAL FAIRNESS." 
ANTE, AT 359, 363.  AS I HAVE SAID TIME AND TIME AGAIN, I PREFER TO PUT
MY FAITH IN THE WORDS OF THE WRITTEN CONSTITUTION ITSELF RATHER THAN TO
RELY ON THE SHIFTING, DAY-TO-DAY STANDARDS OF FAIRNESS OF INDIVIDUAL
JUDGES. 

        I 

OUR CONSTITUTION PROVIDES THAT NO PERSON SHALL BE "DEPRIVED OF LIFE,
LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW."  /3/  THE FOUR WORDS
- DUE PROCESS OF LAW-- HAVE BEEN THE CENTER OF SUBSTANTIAL LEGAL DEBATE
OVER THE YEARS.  SEE CHAMBERS V. FLORIDA, 309 U.S. 227, 235-236, AND N.
8 (1940).  SOME MIGHT THINK THAT THE WORDS THEMSELVES ARE VAGUE.  BUT
ANY POSSIBLE AMBIGUITY DISAPPEARS WHEN THE PHRASE IS VIEWED IN THE
LIGHT OF HISTORY AND THE ACCEPTED MEANING OF THOSE WORDS PRIOR TO AND
AT THE TIME OUR CONSTITUTION WAS WRITTEN. 

"DUE PROCESS OF LAW" WAS ORIGINALLY USED AS A SHORTHAND EXPRESSION
FOR GOVERNMENTAL PROCEEDINGS ACCORDING TO THE "LAW OF THE LAND" AS IT
EXISTED AT THE TIME OF THOSE PROCEEDINGS.  BOTH PHRASES ARE DERIVED
FROM THE LAWS OF ENGLAND AND HAVE TRADITIONALLY BEEN REGARDED AS
MEANING THE SAME THING.  THE MAGNA CARTA PROVIDED THAT: 

      "NO FREEMAN SHALL BE TAKEN, OR IMPRISONED, OR BE DISSEISED OF

  HIS FREEHOLD, OR LIBERTIES, OR FREE CUSTOMS, OR BE OUTLAWED, OR

  EXILED, OR ANY OTHERWISE DESTROYED; NOR WILL WE NOT PASS UPON

  HIM, NOR CONDEMN HIM, BUT BY LAWFUL JUDGMENT OF HIS PEERS, OR BY

  THE ALW OF THE LAND."  /4/

LATER ENGLISH STATUTES REINFORCED AND CONFIRMED THESE BASIC FREEDOMS. 
IN 1350 A STATUTE DECLARED THAT "IT IS CONTAINED IN THE GREAT CHARTER
OF THE FRANCHISES OF ENGLAND, THAT NONE SHALL BE IMPRISONED NOR PUT OUT
OF HIS FREEHOLD, NOR OF HIS FRANCHISES NOR FREE CUSTOM, UNLESS IT BE BY
THE LAW OF THE LAND . . . . "  /5/  FOUR YEARS LATER ANOTHER STATUTE
PROVIDED "(THAT NO MAN OF WHAT ESTATE OR CONDITION THAT HE BE, SHALL BE
PUT OUT OF LAND OF TENEMENT, NOR TAKEN NOR IMPRISONED, NOR
DISINHERITED, NOR PUT TO DEATH, WITHOUT BEING BROUGHT IN ANSWER BY DUE
PROCESS OF THE LAW."  /6/  AND IN 1363 IT WAS PROVIDED "THAT NO MAN BE
TAKEN OR IMPRISONED, NOR PUT OUT OF HIS FREEHOLD, WITHOUT PROCESS OF
LAW."  /7/ 

DRAWING ON THESE AND OTHER SOURCES, LORD COKE, IN 1642, CONCLUDED
THAT "DUE PROCESS OF LAW" WAS SYNONYMOUS WITH THE PHRASE "BY LAW OF THE
LAND."  /8/  ONE OF THE EARLIEST CASES IN THIS COURT TO INVOLVE THE
INTERPRETATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
DECLARED THAT "(THE WORDS, 'DUE PROCESS OF LAW,' WERE UNDOUBTEDLY
INTENDED TO CONVEY THE SAME MEANING AS THE WORDS 'BY THE LAW OF THE
LAND' IN MAGAN CHARTA."  MURRAY'S LESSEE V. HOBOKEN LAND & IMPROV. 
CO., 18 HOW.  272, 276 (1856). 

WHILE IT IS THUS UNMISTAKABLY CLEAR THAT "DUE PROCESS OF LAW" MEANS
ACCORDING TO "THE LAW OF THE LAND," THIS COURT HAS NOT CONSISTENTLY
DEFINED WHAT "THE LAW OF THE LAND" MEANDS AND IN MY VIEW MEMBERS OF
THIS COURT FREQUENTLY CONTINUE TO MISCONCEIVE THE CORRECT
INTERPRETATION OF THAT PHRASE.  IN MURRAY'S LESSEE, SUPRA, MR. JUSTICE
CURTIS, SPEAKING FOR THE COURT, STATED: 

"THE CONSTITUTION CONTAINS NO DESCRIPTION OF THOSE PROCESSES WHICH
IT WAS INTENDED TO ALLOW OR FORBID.  IT DOES NOT EVEN DECLARE WHAT
PRINCIPLES ARE TO BE APPLIED TO ASCERTAIN WHETHER IT BE DUE PROCESS. 
IT IS MANIFEST THAT IT WAS NOT LEFT TO THE LEGISLATIVE POWER TO ENACT
ANY PROCESS WHICH MIGHT BE DEVISED.  THE ARTICLE IS A RESTRAINT ON THE
LEGISLATIVE AS WELL AS ON THE EXECUTIVE AND JUDICIAL POWERS OF THE
GOVERNMENT, AND CANNOT BE SO CONSTRUED AS TO LEAVE CONGRESS FREE TO
MAKE ANY PROCESS 'DUE PROCESS OF LAW,' BY ITS MERE WILL.  TO WHAT
PRINCIPLES, THEN, ARE WE TO RESORT TO ASCERTAIN WHETHER THIS PROCESS,
ENACTED BY CONGRESS, IS DUE PROCESS?  TO THIS THE ANSWER MUST BE
TWOFOLD.  WE MUST EXAMINE THE CONSTITUTION ITSELF, TO SEE WHETHER THIS
PROCESS BE IN CONFLICT WITH ANY OF ITS PROVISIONS.  IF NOT FOUND TO BE
SO, WE MUST LOOK TO THOSE SETTLED USAGES AND MODES OF PROCEEDING
EXISTING IN THE COMMON AND STATUTE LAW OF ENGLAND, BEFORE THE
EMIGRATION OF OUR ANCESTORS, AND WHICH ARE SHOWN NOT TO HAVE BEEN
UNSUITED TO THEIR CIVIL AND POLITICAL CONDITION BY HAVING BEEN ACTED ON
BY THEM AFTER THE SETTLEMENT OF THIS COUNTRY."  ID., AT 2760277.  /9/
LATER IN TWINING V. NEW JERSEY, 211 U.S. 78 (1908), MR. JUSTICE MOODY,
AGAIN SPEAKING FOR THE COURT, REAFFIRMED THAT "DUE PROCESS OF LAW"
MEANT "BY LAW OF THE LAND," BUT HE WENT ON TO MODIFY MR. JUSTICE
CURTIS' DEFINITION OF THE PHRASE.  HE STATED: 

     "FIRST.  WHAT IS DUE PROCESS OF LAW MAY BE ASCERTAINED BY AN

EXAMINATION OF THOSE SETTLED USAGES AND MODES OF PROCEEDINGS

  EXISTING IN THE COMMON AND STATUTE LAW OF ENGALND BEFORE THE

  EMIGRATION OF OUR ANCESTORS, AND SHOWN NOT TO HAVE BEEN UNSUITED

  TO THEIR CIVIL AND POLITICAL CONDITION BY HAVING BEEN ACTED ON BY

  THEM AFTER THE SETTLEMENT OF THIS COUNTRY.  . . . 

     "SECOND.  IT DOES NOT FOLLOW, HOWEVER, THAT A PROCEDURE
SETTLED

  IN ENGLISH LAW AT THE TIME OF THE EMIGRATION, AND BROUGHT TO THIS

  COUNTRY AND PRACTICED BY OUR ANCESTORS, IS AN ESSENTIAL ELEMENT

  OF DUE PROCESS OF LAW.  IF THAT WERE SO THE PROCEDURE OF THE

  FIRST HALF OF THE SEVENTEENTH CENTURY WOULD BE FASTENED UPON THE

  AMERICAN JURISPRUDENCE LIKE A STRAIGHT-JACKET, ONLY TO BE

  UNLOOSED BY CONSTITUTIONAL AMENDMENT.  . . . 

"THIRD.  BUT, CONSISTENTLY WITH THE REQUIREMENTS OF DUE

PROCESS, NO CHANGE IN ANCIENT PROCEDURE CAN BE MADE WHICH

DISREGARDS THOSE FUNDAMENTAL PRINCIPLES, TO BE ASCERTAINED FROM

  TIME TO TIME BY JUDICIAL ACTION, WHICH HAVE RELATION TO PROCESS

  OF LAW AND PROTECT THE CITIZEN IN HIS PRIVATE RIGHT, AND GUARD

  HIM AGAINST THE ARBITRARY ACTION OF GOVERNMENT."  ID., AT

  100-101.  /10/

IN THOSE WORDS IS FOUND THE KERNEL OF THE "NATURAL LAW DUE PROCESS"
NOTION BY WHICH THIS COURT FREES ITSELF FROM THE LIMITS OF A WRITTEN
CONSTITUTION AND SETS ITSELF LOOSE TO DECLARE ANY LAW UNCONSTITUTIONAL
THAT "SHOCKS ITS CONSCIENCE," DEPRIVES A PERSON OF "FUNDAMENTAL
FAIRNESS," OR VIOLATES THE PRINCIPLES "IMPLICIT IN THE CONCEPT OF
ORDERED LIBERTY."  SEE ROCHIN V. CALIFORNIA, 342 U.S. 165, 172 (1952);
PALKO V. CONNECTICUT, 302 U.S. 319, 325 (1937).  WHILE THIS APPROACH
HAS BEEN FREQUENTLY USED IN DECIDING SO-CALLED "PROCEDURAL" QUESTIONS,
IT HAS EVOLVED INTO A DEVICE AS EASILY INVOKED TO DECLARE INVALID
"SUBSTANTIVE" LAWS THAT SUFFICIENTLY SHOCK THE CONSCIENCES OF AT LEAST
FIVE MEMBERS OF THIS COURT.  SEE, E.G., LOCHNER V. NEW YORK, 198 U.S.
45 (1905); COPPAGE V. KANSAS, 236 U.S. 1 (1915); BURNS BAKING CO. V.
BRYAN, 264 U.S. 504 (1924); GRISWOLD V. CONNECTICUT, 381 U.S. 479
(1965).  I HAVE SET FORTH AT LENGTH IN PRIOR OPINIONS MY OWN VIEWS THAT
THIS CONCEPT IS COMPLETELY AT ODDS WITH THE BASIC PRINCIPLE THAT OUR
GOVERNMENT IS ONE OF LIMITED POWERS AND THAT SUCH AN ARROGATION OF
UNLIMITED AUTHORITY BY THE JUDICIARY CANNOT BE SUPPORTED BY THE
LANGUAGE OR THE HISTORY OF ANY PROVISION OF THE CONSTITUTION.  SEE,
E.G., ADAMSON V. CALIFORNIA, 332 U.S. 46, 68 (1947) (DISSENTING
OPINION); GRISWOLD V. CONNECTICUT, SUPRA, AT 507 (1965) (DISSENTING
OPINION). 

IN MY VIEW BOTH MR. JUSTICE CURTIS AND MR. JUSTICE MOODY GAVE "DUE
PROCESS OF LAW" AN UNJUSTIFIABLY BROAD INTERPRETATION.  FOR ME THE ONLY
CORRECT MEANING OF THAT PHRASE IS THAT OUR GOVERNMENT MAUST PROCEED
ACCORDING TO THE "LAW OF THE LAND"-- THAT IS ACCORDING TO WRITTEN
CONSTITUTIONAL AND STATUTORY PROVISIONS AS INTERPRETED BY COURT
DECISIONS.  THE DUE PROCESS CLAUSE, IN BOTH THE FIFTH AND FOURTEENTH
AMENDMENTS, IN AND OF ITSELF DOES NOT ADD TO THOSE PROVISIONS, BUT IN
EFFECT STATES THAT OUR GOVERNMENTS ARE GOVERNMENTS OF LAW AND
CONSTITUTIONALLY BOUND TO ACT ONLY ACCORDING TO LAW.  /11/  TO SOME
THAT VIEW MAY SEEM A DEGRADING AND NIGGARDLY VIEW OF WHAT IS
UNDOUBTEDLY A FUNDAMENTAL PART OF OUR BASIC FREEDOMS.  BUT THAT
CRITICISM FAILS TO NOTE THE HISTORICAL IMPORTANCE OF OUR CONSTITUTION
AND THE VIRTUAL REVOLUTION IN THE HISTORY OF THE GOVERNMENT OF NATIONS
THAT WAS ACHIEVED BY FORMING A GOVERNMENT THAT FROM THE BEGINNING HAD
ITS LIMITS OF POWER SET FORTH IN ONE WRITTEN DOCUMENT THAT ALSO MADE IT
ABUNDANTLY CLEAR THAT ALL GOVERNMENTAL ACTIONS AFFECTING LIFE, LIBERTY,
AND PROPERTY WERE TO BE ACCORDING TO LAW. 

FOR YEARS OUR ANCESTORS HAD STRUGGLED IN AN ATTEMPT TO BRING ENGLAND
UNDER ONE WRITTEN CONSTITUTION, CONSOLIDATING IN ONE PLACE ALL THE
THREADS OF THE FUNDAMENTAL LAW OF THAT NATION.  THEY ALMOST SUCCEEDED
IN THAT ATTEMPT, /12/  BUT IT WAS NOT UNTIL AFTER THE AMERICAN
REVOLUTION THAT MEN WERE ABLE TO ACHIEVE THAT LONG-SOUGHT GOAL.  BUT
THE STRUGGLE HAD NOT BEEN SIMPLY TO PUT ALL THE CONSTITUTIONAL LAW IN
ONE DOCUMENT, IT WAS ALSO TO MAKE CERTAIN THAT MEN WOULD BE GOVERNED BY
LAW, NOT THE ARBITRARY FIAT OF THE MAN OR MEN IN POWER.  OUR ANCESTORS'
ANCESTORS HAD KNOWN THE TYRANNY OF THE KINGS AND THE RULE OF MAN AND
IT WAS, IN MY VIEW, IN ORDER TO INSURE AGAINST SUCH ACTIONS THAT THE
FOUNDERS WROTE INTO OUR OWN MAGNA CARTA THE FUNDAMENTAL PRINCIPLE OF
THE RULE OF LAW, AS EXPRESSED IN THE HISTORICALLY MEANINGFUL PHRASE
"DUE PROCESS OF LAW."  THE MANY DECISIONS OF THIS COURT THAT HAVE FOUND
IN THAT PHRASE A BLANKET AUTHORITY TO GOVERN THE COUNTRY ACCORDING TO
THE VIEWS OF AT LEAST FIVE MEMBERS OF THIS INSTITUTION HAVE IGNORED THE
ESSENTIAL MEANING OF THE VERY WORDS THEY INVOKE.  WHEN THIS COURT
ASSUMES FOR ITSELF THE POWER TO DECLARE ANY LAW-- STATE OR FEDERAL--
UNCONSTITUTIONAL BECAUSE IT OFFENDS THE MAJORITY'S OWN VIEWS OF WHAT IS
FUNDAMENTAL AND DECENT IN OUR SOCIETY, OUR NATION CEASES TO BE GOVERNED
ACCORDING TO THE "LAW OF THE LAND" AND INSTEAD BECOMES ONE GOVERNED
ULTIMATELY BY THE "LAW OF THE JUDGES." 

IT CAN BE, AND HAS BEEN ARGUED THAT WHEN THIS COURT STRIKES DOWN A
LEGISLATIVE ACT BECAUSE IF OFFENDS THE IDEA OF "FUNDAMENTAL FAIRNESS,"
IT FURT-ERS THE BASIC THRUST OF OUR BILL OF RIGHTS BY PROTECTING
INDIVIDUAL FREEDOM.  BUT THAT ARGUMENT IGNORES THE EFFECT OF SUCH
DECISIONS ON PERHAPS THE MOST FUNDAMENTAL INDIVIDUAL LIBERTY OF OUR
PEOPLE-- THE RIGHT OF EACH MAN TO PARTICIPATE IN THE SELF-GOVERNMENT OF
HIS SOCIETY.  OUR FEDERAL GOVERNMENT WAS SET UP AS ONE OF LIMITED
POWERS, BUT IT WAS ALSO GIVEN BROAD POWER TO DO ALL THAT WAS "NECESSARY
AND PROPER" TO CARRY OUT ITS BASIC PURPOSE OF GOVERNING THE NATION, SO
LONG AS THOSE POWERS WERE NOT EXERCISED CONTRARY TO THE LIMITATIONS SET
FORTH IN THE CONSTITUTION.  AND THE STATES, TO THE EXTENT THEY ARE NOT
RESTRAINED BY THE PROVISIONS IN THAT DOCUMENT, WERE TO BE LEFT FREE TO
GOVERN THEMSELVES IN ACCORDANCE WITH THEIR OWN VIEWS OF FAIRNESS AND
DECENCY.  ANY LEGISLATURE PRESUMABLY PASSES A LAW BECAUSE IT THINKS THE
END RESULT WILL HELD MORE THAN HINDER AND WILL THUS FURTHER THE LIBERTY
OF THE SOCIETY AS A WHOLE.  THE PEOPLE, THROUGH THEIR ELECTED
REPRESENTATIVES, AMY OF COURSE BE WRONG IN MAKING THOSE DETERMINATIONS,
BUT THE RIGHT OF SELF-GOVERNMENT THAT OUR CONSTITUTION PRESERVES IS
JUST AS IMPORTANT AS ANY OF THE SPECIFIC INDIVIDUAL FREEDOMS PRESERVED
IN THE BILL OF RIGHTS.  THE LIBERTY OF GOVERNMENT BY THE PEOPLE, IN MY
OPINION, SHOULD NEVER BE DENIED BY THIS COURT EXCEPT WHEN THE DECISION
OF THE PEOPLE AS STATED IN LAWS PASSED BY THEIR CHOSEN REPRESENTATIVES,
CONFLICTS WITH THE EXPRESS OR NECESSARILY IMPLIED COMMANDS OF OUR
CONSTITUTION. 

     II 

I ADMIT A STRONG, PERSUASIVE ARGUMENT CAN BE MADE FOR A STANDARD OF
PROOF BEYOND A REASONABLE DOUBT IN CRIMINAL CASES-- AND THE MAJORITY
HAS MADE THAT ARGUMENT WELL-- BUT IT IS NOT FOR ME AS A JUDGE TO SAY
FOR THAT REASON THAT CONGRESS OR THE STATES ARE WITHOUT CONSTITUTIONAL
POWER TO ESTABLISH ANOTHER STANDARD THAT THE CONSTITUTION DOES NOT
OTHERWISE FORBID.  IT IS QUITE TRUE THAT PROOF BEYOND A REASONABLE
DOUBT HAS LONG BEEN REQUIRED IN FEDERAL CRIMINAL TRIALS.  IT IS ALSO
TRUE THAT THIS REQUIREMENT IS ALMOST UNIVERSALLY FOUND IN THE GOVERNING
LAWS OF THE STATES.  AND AS LONG AS A PARTICULAR JURISDICTION REQUIRES
PROOF BEYOND A REASONABLE DOUBT, THEN THE DUE ROCESS CLAUSE COMMANDS
THAT EVERY TRAIL IN THAT JURISDICTION MUST ADHERE TO THAT STANDARD. 
SEE TURNER V. UNITED STATES, 396 U.S. 398, 430 (1970) (BLACK, J.,
DISSENTING).  BUT WHEN, AS HERE, A STATE THROUGH ITS DULY CONSTITUTED
LEGISLATIVE BRANCH DECIDES TO APPLY A DIFFERENT STANDARD, THEN THAT
STANDARD, UNLESS IT IS OTHERWISE UNCONSTITUTIONAL, MUST BE APPLIED TO
INSURE THAT PERSONS ARE TREATED ACCORDING TO THE "LAW OF THE LAND." 
THE STATE OF NEW YORK HAS MADE SUCH A DECISION, AND IN MY VIEW NOTHING
IN THE DUE PROCESS CLAUSE INVALIDATES IT. 

/1/  AMDTS.  V, VI, U.S. CONSTITUTION. 

/2/  ART. III, SEC. 2, CL. 3; AMDT. VI, U.S. CONSTITUTION. 

/3/  THE FIFTH AMENDMENT APPLIES THIS LIMITATION TO THE FEDERAL
GOVERNMENT AND THE FOURTEENTH AMENDMENT IMPOSES THE SAME RESTRICTION ON
THE STATES. 

/4/  9 HEN.  3, C. 29 (1225).  A SIMILAR PROVISION APPEARED IN C. 39
OF THE ORIGINAL ISSUE SIGNED BY KING JOHN IN 1215. 

/5/  25 EDW.  3, STAT. 5, C. IV. 

/6/  28 EDW.  3, C. III. 

/7/  37 EDW.  3, C. XVIII. 

/8/  COKE'S INSTITUTES, SECOND PART, 50 (1ST ED. 1642). 

/9/  CF. UNITED STATES V. HUDSON, 7 CRANCH 32 (1812), IN WHICH THE
COURT HELD THAT THERE WAS NO JURISDICTION IN FEDERAL COURTS TO TRY
CRIMINAL CHARGES BASED ON THE COMMON LAW AND THAT ALL FEDERAL CRIMES
MUST BE BASED ON A STATUTE OF CONGRESS. 

/10/  CF. THE VIEWS OF MR. JUSTICE IREDELL IN CALDER V. BULL, 3
DALL.  386, 398 (1798). 

/11/  IT IS NOT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
STANDING ALONE, THAT REQUIRES MY CONCLUSION THAT THAT AMENDMENT WAS
INTENDED TO APPLY FULLY THE PROTECTION OF THE BILL OF RIGHTS TO ACTIONS
BY THE STATES.  THAT CONCLUSION FOLLOWS FROM THE LANGUAGE OF THE ENTIRE
FIRST SECTION OF THE FOURTEENTH AMENDMENT, AS ILLUMINATED BY THE
LEGISLATIVE HISTORY SURROUNDING IS ADOPTION.  SEE ADAMSON V.
CALIFORNIA, SUPRA, AT 71-75, 92-123. 

MR. JUSTICE HARLAN CONTINUES TO INSIST THAT UNCONTROVERTED SCHOLARLY
RESEARCH SHOWS THAT THE FOURTEENTH AMENDMENT DID NOT INCORPORATE THE
BILL OF RIGHTS AS LIMITATIONS ON THE STATES.  SEE POE V. ULLMAN, 367
U.S. 497, 540 (1961) (DISSENTING OPINION); GRISWOLD V. CONNECTICUT,
SUPRA, AT 500 (CONCURRING IN JUDGMENT); ANTE, AT 372-2373, N. 5.  I
CANNOT UNDERSTAND THAT CONCLUSION.  MR. FAIRMAN, IN THE ARTICLE
REPEATEDLY CITED BY MR. JUSTICE HARLAN, SURVEYS THE LEGISLATIVE HISTORY
AND CONCLUDES THAT IT IS HIS OPINION THAT THE AMENDMENT DID NOT
INCORPORATE THE BILL OF RIGHTS.  MR. FLACK, IN AT LEAST AN EQUALLY
"SCHOLARLY" WRITING, SURVEYS SUBSTANTIALLY THE SAME DOCUMENTS RELIED
UPON BY MR. FAIRMAN AND CONCLUDES THAT A PRIME OBJECTIVE OF CONGRESS IN
PROPOSING THE ADOPTION OF THE FOURTEENTH AMENDMENT WAS "(TO MAKE THE
BILL OF RIGHTS (THE FIRST EIGHT AMENDMENTS) BINDING UPON, OR APPLICABLE
TO, THE STATES."  COMPARE H. FLACK, THE ADOPTION OF THE FOURTEENTH
AMENDMENT 94 (1908), WITH FAIRMAN, DOES THE FOURTEENTH AMENDMENT
INCORPORATE THE BILL OF RIGHTS?  THE ORIGINAL UNDERSTANDING, 2
STAN.L.REV.  5 (1949).  IT IS, OF COURSE, SIGNIFICANT THAT SINCE THE
ADOPTION OF THE FOURTEENTH AMENDMENT THIS COURT HAS HELD ALMOST ALL THE
PROVISIONS OF THE BILL OF RIGHTS APPLICABLE TO THE STATES:  THE FIRST
AMENDMENT, E.G., GITLOW V. NEW YORK, 268 U.S. 652 (1925), CANTWELL V.
CONNECTICUT, 310 U.S. 296 (1940), EDWARDS V. SOUTH CAROLINA, 372 U.S.
229 (1963); THE FOURTH AMENDMENT, MAPP V. OHIO, 367 U.S. 643 (1961);
THE FIFTH AMENDMENT, CHICAGO B. & Q.R. CO. V. CHICAGO, 166 U.S. 226
(1897), MALLORY V. HOGAN, 378 U.S. 1 (1964), BENTON V. MARYLAND, 395
U.S. 784 (1969); THE SIXTH AMENDMENT, GIDEON V. WAINWRIGHT, 372 U.S.
335 (1963), POINTER V. TEXAS, 380 U.S. 400 (1965), KLOPFER V. NORTH
CAROLINA, 386 U.S. 213 (1967), DUNCAN V. LOUISIANA, 391 U.S. 145
(1968); AND THE EIGHTH AMENDMENT, ROBINSON V. CALIFORNIA, 370 U.S. 660
(1962).  TO ME THIS HISTORY INDICATES THAT IN THE END MR. FLACK'S
THESIS HAS FARED MUCH BETTER THAN MR. FAIRMAN'S "UNCONTROVERTED"
SCHOLARSHIP. 

/12/  SEE J. FRANK, THE LEVELLERS (1955). 

RENA K. UVILLER AGRUGED THE CAUSE FOR APPELLANT.  WITH HER ON THE
BRIEFS WAS WILLIAM E. HELLERSTEIN. 

STANLEY BUCHSBAUM ARGUED THE CAUSE FOR THE CITY OF NEW YORK,
APPELLEE.  WITH HIM ON THE BRIEF WAS J. LEE RANKIN. 

MARIE S. KLOOZ FILED A BRIEF FOR THE NEIGHBORHOOD LEGAL SERVICES
PROGRAM OF WASHINGTON, D.C., ET AL. AS AMICI CURIAE URGING REVERSAL. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ,
FIRST ASSISTANT ATTORNEY GNERAL, AND MARIE L. MARCUS, ASSISTANT
ATTORNEY GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL OF NEW YORK AS
AMICUS CURIAE URGING AFFIRMANCE. 
..END :










UNITED STATES V. KEY, TRUSTEE IN BANKRUPTCY, 397 U.S. 322 


       UNITED STATES V. KEY, TRUSTEE IN BANKRUPTCY

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 402.  ARGUED JANUARY 21, 1970-- DECIDED MARCH 30, 1970 


THE UNITED STATES CHALLENGES AS VIOLATIVE OF SEC. 3466 OF THE REVISED
STATUTES A REORGANIZATION PLAN UNDER CHAPTER X OF THE BANKRUPTCY ACT
UNDER WHICH CLAIMS OF JUNIOR CREDITORS WERE TO BE PARTIALLY OR FULLY
PAID BEFORE FULL PAYMENT WAS MADE OF THE GOVERNMENT'S TAX CLAIMS. 
STATES IS INSOLVENT . . . THE DEBTS DUE TO THE UNITED STATES SHALL BE
FIRST SATISFIED."  THE DISTRICT COURT APPROVED THE PLAN.  THE COURT OF
APPEALS AFFIRMED ON THE GROUND THAT SEC. 3466 WAS IMPLIEDLY
INAPPLICABLE BY VIRTUE OF THE STATUTORY PLAN OF CHAPTER X PROCEEDINGS,
SEC. 199 OF THE ACT PROVIDING THAT THE UNITED STATES SHALL HAVE
"PAYMENT" OF ITS TAX CLAIMS IN SUCH PROCEEDINGS UNLESS THE SECRETARY OF
THE TREASURY ACCEPTS "A LESSER AMOUNT," AND SECS. 216 AND 221
ESTABLISHING AN EQUITABLE STANDARD TO GOVERN THE METHOD OF PAYMENT. 
HELD:  THE UNITED STATES IS ENTITLED TO ABSOLUTE PRIORITY OF PAYMENT
UNDER SEC. 3466 OF THE REVISED STATUTES OVER THE OTHER CLAIMANTS IN THE
REORGANIZATION HERE INVOLVED, THERE BEING NO INCONSISTENCY BETWEEN THE
TERMS OF THAT SECTION AND THE PROVISIONS OF CHAPTER X. PP. 324-333. 

407 F.2D 635, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE UNITED STATES CHALLENGES THE TREATMENT GIVEN TO ITS
CLAIM FOR UNPAID TAXES AGAINST AN INSOLVENT CORPORATION IN
REORGANIZATION UNDER CHAPTER X OF THE BANKRUPTCY ACT, 11 U.S.C. 501
676.  UNDER THE REORGANIZATION PLAN APPROVED BY THE DISTRICT COURT, THE
DEBTOR, HANCOCK TRUCKING, INC., WILL SELL ITS CHIEF ASSET, ITS
INTERSTATE COMMERCE COMMISSION OPERATING RIGHTS, TO HENNIS FREIGHT
LINES, INC., FOR $935,000.  THE SALE CONTRACT PROVIDES FOR A $300,000
DOWN PAYMENT, WITH THE BALANCE TO BE PAID IN 78 MONTHLY INSTALLMENTS. 
UNDER THE REORGANIZATION PLAN, THE DOWN PAYMENT WILL BE USED TO SATISFY
CERTAIN WAGE AND STATE AND LOCAL TAX CLAIMS IN FULL, TO SATISFY 20% OF
THE CLAIMS OF THE UNSECURED CREDITORS, AND TO SATISFY ABOUT 10% OF THE
UNITED STATES' TAX CLAIM OF $375,386.55.  THE REMAINDER OF THE UNITED
STATES' CLAIM WILL BE PAID OUT OF THE MONTHLY INSTALLMENTS.  THE PLAN,
AN ATYPICAL ONE FOR A CORPORATE REORGANIZATION, DOES NOT CONTEMPLATE
THE CONTINUED EXISTENCE OF THE DEBTOR AS A GOING CONCERN, BUT AMOUNTS
IN SUBSTANCE TO A LIQUIDATION. 

THE UNITED STATES OBJECTS TO THAT ASPECT OF THE PLAN THAT PROVIDES FOR
PARTIAL OR COMPLETE PAYMENT OF THE CLAIMS OF UNSECURED CREDITORS AND
STATE AND LOCAL GOVERNMENT UNITS BEFORE FULL PAYMENT OF THE FEDERAL TAX
CLAIMS.  THIS, THE GOVERNMENT URGES, VIOLATES THE COMMAND OF SEC. 3466
OF THE REVISED STATUTES, 31 U.S.C. 191, THAT "(WHENEVER ANY PERSON
INDEBTED TO THE UNITED STATES IS INSOLVENT . . . THE DEBTS DUE TO THE
UNITED STATES SHALL BE FIRST SATISFIED."  RESPONDENT URGES THAT SEC.
3466 DOES NOT APPLY TO CHAPTER X PROCEEDINGS, BUT THAT THE UNITED
STATES IS ENTITLED ONLY TO "PAYMENT" OF ITS TAX CLAIM, AS PROVIDED BY
SEC. 199 OF THE BANKRUPTCY ACT, 11 U.S.C. 599. 

THE COURT OF APPEALS ACCEPTED RESPONDENT'S THEORY, AND AFFIRMED THE
ORDER OF THE DISTRICT COURT APPROVING THE PLAN.  407 F.2D 635 (C.A. 7TH
CIR. 1969).  WE GRANTED CERTIORARI, 396 U.S. 874 (1969), AND WE
REVERSE. 

SINCE THE EARLIEST DAYS OF THE REPUBLIC, SEC. 3466 AND ITS
PREDECESSORS HAVE GIVEN THE GOVERNMENT PRIORITY OVER ALL OTHER
CLAIMANTS IN COLLECTING DEBTS DUE IT FROM INSOLVENT DEBTORS.  /1/  THE
PRESENT STATUTE HAS EXISTED ALMOST UNCHANGED SINCE 1797, /2/  AND ITS
HISTORICAL ROOTS REACH BACK TO THE SIMILAR PRIORITY OF THE CROWN IN
ENGLAND, AN ASPECT OF THE ROYAL PREROGATIVE, FOUNDED UPON A POLICY OF
PROTECTING THE PUBLIC REVENUES.  /3/  THE SAME POLICY UNDERLIES THE
FEDERAL STATUTE, UNITED STATES V. STATE BANK OF NORTH CAROLINA, 6 PET.
29, 35 (1832), AND IT IS ESTABLISHED THAT THE TERMS OF SEC. 3466 ARE TO
BE LIBERALLY CONSTRUED TO ACHIEVE THIS BROAD PURPOSE.  BEASTON V.
FARMERS' BANK, 12 PET. 102, 134 (1838); BRAMWELL V. UNITED STATES
FIDELITY CO., 269 U.S. 483, 487 (1926). 

CONCEDEDLY INSOLVENT, AND IT IS ESTABLISHED THAT A TAX DEBT IS A "DEBT
DUE TO THE UNITED STATES" WITHIN THE MEANING OF THE STATUTE.  PRICE V.
UNITED STATES, 269 U.S. 492, 499 (1926).  NO PROVISION OF CHAPTER X
EXPLICITLY EXCEPTS CORPORATE DEBTORS IN REORGANIZATION FROM THE
APPLICATION OF SEC. 3466, AND SO THE ONLY REMAINING QUESTION IS WHETHER
THE LEGISLATIVE SCHEME ESTABLISHED IN CHAPTER X, EITHER BY LOGICAL
INCONSISTENCY OR OTHER MANIFESTATION OF CONGRESSIONAL INTENT, IMPLIES
SUCH AN EXCEPTION. 

IN APPROACHING A CLAIM OF AN IMPLIED EXCEPTION TO SEC. 3466, WE
START WITH THE PRINCIPLE, NOTED ABOVE, THAT THE STATUTE MUST BE GIVEN A
LIBERAL CONSTRUCTION CONSONANT WITH THE PUBLIC POLICY UNDERLYING IT.
APPLYING THAT PRINCIPLE TO AN EARLIER CLAIM THAT A STATUTORY SCHEME
IMPLICITLY EXCLUDED SEC. 3466, THIS COURT HELD THAT "(ONLY THE PLAINEST
INCONSISTENCY WOULD WARRANT OUR FINDING AN IMPLIED EXCEPTION TO THE
OPERATION OF SO CLEAR A COMMAND AS THAT OF SEC. 3466."  UNITED STATES
V. EMORY, 314 U.S. 423, 433 (1941). 

HERE THE COURT OF APPEALS DISCERNED AN INTENT NOT TO APPLY SEC. 3466
TO CHAPTER X PROCEEDINGS FROM SEC. 199 OF THE BANKRUPTCY ACT, WHICH
FORBIDS THE APPROVAL OF ANY REORGANIZATION PLAN WHICH DOES NOT PROVIDE
FOR THE "PAYMENT" OF TAXES OR CUSTOMS DUE TO THE UNITED STATES, UNLESS
THE SECRETARY OF THE TREASURY ACCEPTS "A LESSER AMOUNT."  /4/  THE
COURT OF APPEALS FURTHER SUPPORTED ITS INFERENCE OF EXCLUSIONARY INTENT
FROM SECS. 216(7) AND 221 OF THE ACT, 11 U.S.C. 616(7) AND 621. 
REORGANIZATION PLAN, THE DISTRICT COURT SHALL PROVIDE "ADEQUATE
PROTECTION FOR THE REALIZATION BY THEM OF THE VALUE OF THEIR CLAIMS
AGAINST THE PROPERTY" IN ANY OF FOUR WAYS, THE LAST AND MOST GENERAL OF
WHICH IS BY "SUCH METHOD AS WILL, UNDER AND CONSISTENT WITH THE
CIRCUMSTANCES OF THE PARTICULAR CASE, EQUITABLY AND FAIRLY PROVIDE SUCH
PROTECTION."  SECTION 221 MERELY SUMS UP THE APPLICABLE TESTS FOR A
VALID REORGANIZATION PLAN BY PROVIDING THAT "(THE JUDGE SHALL CONFIRM A
PLAN IF SATISFIED THAT" SEC. 199 HAS BEEN COMPLIED WITH AND THAT "THE
PLAN IS FAIR AND EQUITABLE, AND FEASIBLE." 

THE COURT OF APPEALS REASONED FROM THESE PROVISIONS TO THE IMPLIED
EXCLUSION OF THE OPERATION OF SEC. 3466 AS FOLLOWS: 

     "WITHIN CHAPTER X, SECS. 199, 216 AND 221 ARE INTER-RELATED

  STATUTES AND PART OF A STUDIED STATUTORY PLAN.  SECTION 199

  OUTLINES THE NATURE OF THE GOVERNMENT'S TAX CLAIM 'PRIORITY,' AND

  THE TWO OTHER SECTIONS ESTABLISH AN EQUITABLE STANDARD TO GOVERN

THE METHOD OF PAYMENT.  IF, AS THE GOVERNMENT WOULD HAVE US HOLD,

  SEC. 3466 CREATES AN ABSOLUTE RIGHT TO FIRST PAYMENT IN ADDITION

  TO FULL PAYMENT, THERE WOULD BE LITTLE NEED FOR SECS. 199, 216(7)

  AND 221.  THESE SECTIONS APPLY SPECIFICALLY TO CHAPTER X

  PROCEEDINGS AND SHOULD CONTROL OVER THE MORE GENERAL AND

  CONFLICTING DIRECTION OF SEC. 3466."  407 F.2D,AT 638. 

IN OUR VIEW THERSE PROVISIONS ARE NOT LOGICALLY INCONSISTENT WITH
THE TERMS OF SEC. 3466, NOR WOULD THEY BE RENDERED REDUNDANT IF THE
OLDER STATUTE APPLIED, NOR DOES THEIR LANGUAGE OR LEGISLATIVE HISTORY
REVEAL A PURPOSE INCONGRUOUS WITH ITS APPLICATION. 

IN THE FIRST PLACE, SEC. 216(7) HAS NOTHING TO DO WITH THE
PRIORITIES OF DIFFERENT CLASSES OF CLAIMANTS UNDER CHAPTER X. THAT
HERE THE UNITED STATES ITSELF CONSTITUTES THE WHOLE OF SUCH A CLASS)
DISSENTS FROM A PLAN, THEIR CLAIMS ARE TO BE DEALT WITH IN ONE OF THE
FOUR WAYS SPECIFIED, ONE OF WHICH IS THAT THOSE CLAIMS MUST BE DISPOSED
OF "EQUITABLY AND FAIRLY." 

THIS COURT HAS LONG HELD THAT THESE WORDS, ALONG WITH THE WORDS
"FAIR AND EQUITABLE" IN SEC. 221, IN NO WAY AUTHORIZE A DISTRICT COURT
TO IGNORE OR ERODE PRIORITIES OTHERWISE GRANTED BY LAW, AND IT FOLLOWS
THAT THIS LANGUAGE CANNOT BE TAKEN TO EXCLUDE BY IMPLICATION AN
EXPLICIT STATUTORY PRIORITY, SUCH AS THAT GRANTED THE UNITED STATES BY
SEC. 3466.  IN SHORT, THE WORDS "FAIR AND EQUITABLE" IN CHAPTER X ARE
TERMS OF ART, AND NO PLAN CAN BE "FAIR AND EQUITABLE" WHICH COMPROMISES
THE RIGHTS OF SENIOR CREDITORS IN ORDER TO PROTECT JUNIOR CREDITORS. 
CASE V. LOS ANGELES LUMBER CO., 308 U.S. 106, 115-116 (1939);
CONSOLIDATED ROCK CO. V. DU BOIS, 312 U.S. 510, 527-529 (1941). 

WE TURN THEN TO THE ARGUMENT UPON WHICH RESPONDENT CHIEFLY RELIES
FOR HIS CLAIM THAT SEC. 3466 DOES NOT REACH TO CHAPTER X PROCEEDINGS--
THE ALLEGED INCONSISTENCY BETWEEN APPLICATION OF THE "FIRST SATISFIED"
REQUIREMENT AND THE TERMS AND PURPOSES OF SEC. 199.  AS ALREADY NOTED,
SEC. 199 PROVIDES THAT THE UNITED STATES SHALL HAVE "PAYMENT" OF ITS
TAX CLAIMS IN CHAPTER X PROCEEDINGS UNLESS THE SECRETARY OF THE
TREASURY ACCEPTS "A LESSER AMOUNT."  RESPONDENT ARGUES AND THE COURT OF
APPEALS HELD THAT THIS ESTABLISHES BY NEGATIVE IMPLICATION THAT
CONGRESS DID NOT MEAN THE UNITED STATES TO BE ABLE TO INSIST UPON THE
MORE ONEROUS REMEDY OF PAYMENT FIRST IN TIME.  /5/ 

AS A MATTER OF LOGIC, WE SEE NO INCONSISTENCY BETWEEN A REQUIREMENT
OF PAYMENT AND A REQUIREMENT OF FIRST SATISFACTION.  CONGRESS SURELY
COULD HAVE PROVIDED THAT THE UNITED STATES RECEIVE PAYMENT OUT OF A
LIMITED FUND AT THE EXPENSE OF OTHER CLAIMANTS, AND QUITE CONSISTENTLY
PROVIDED THAT WHEN THE WHEREWITHAL TO MAKE SUCH PAYMENT BECAME
AVAILABLE IN INSTALLMENTS OVER TIME THE UNITED STATES SHOULD ALSO HAVE
THE RIGHT TO CLAIM THE FIRST OF THOSE INSTALLMENTS AND EACH SUCCEEDING
ONE UNTIL ITS DEBT WAS SATISFIED.  /6/  SEPARATE PROVISIONS TO THIS
EFFECT IN THE SAME STATUTE COULD CERTAINLY BE READ IN HARMONY WITH EACH
OTHER, AND THERE IS NO REASON WHY SEC. 3466 SHOULD NOT BE READ TO
SUPPLEMENT THE REQUIREMENT OF PAYMENT CONTAINED IN SEC. 199 IN THE SAME
FASHION. 

NOR IS SEC. 199 REDUNDANT IF SEC. 3466 APPLIES IN CHAPTER X
PROCEEDINGS ON THE GROUND THAT A REQUIREMENT OF FIRST SATISFACTION
NECESSARILY IMPLIES A REQUIREMENT OF PAYMENT.  SECTION 3466 APPLIES
ONLY TO INSOLVENT DEBTORS.  /7/ YET CHAPTER X PROCEEDINGS ARE NOT OPEN
MERELY TO CORPORATIONS THAT ARE INSOLVENT, IN THAT THEIR LIABILITIES
EXCEED THEIR ASSETS, BUT ALSO TO THOSE THAT ARE SOLVENT IN THE
BANKRUPTCY OR ASSET-LIABILITY SENSE AND YET ARE UNABLE TO MEET THEIR
OBLIGATIONS AS THEY MATURE.  BANKRUPTCY ACT SEC. 130(1), 11 U.S.C.
530(1).  THUS SEC. 199 DOES NOT MERELY GIVE THE GOVERNMENT RIGHTS
ALREADY GRANTED BY IMPLICATION IN SEC. 3466, BUT EXTENDS THE
GOVERNMENT'S PRIORITY, FOR TAX CLAIMS AT LEAST, TO SOLVENT CORPORATIONS
IN CHAPTER X REORGANIZATION. 

THUS, ON THE FACE OF THE STATUTE, NO INCONSISTENCY ARISES FROM
APPLYING BOTH SEC. 3466 AND SEC. 199 TO CHAPTER X PROCEEDINGS, MUCH
LESS THE "PLAIN INCONSISTENCY" REQUIRED IF RESPONDENT IS TO PREVAIL
UNDER THE TEST OF UNITED STATES V. EMORY, SUPRA.  THAT IN ITSELF
STRONGLY SUGGESTS THAT SEC. 3466 SHOULD APPLY HERE, AND OUR EXAMINATION
OF THE BACKGROUND AND LEGISLATIVE HISTORY OF SEC. 199 AND OF CHAPTER X
GENERALLY DOES NOT REVEAL A CONTRARY INTENT ON THE PART OF CONGRESS. 

BEFORE THE REORGANIZATION LEGISLATION OF THE 1930'S, THE PRINCIPAL
METHOD OF REORGANIZING CORPORATIONS THAT WERE UNABLE TO MEET THEIR
DEBTS WAS THE EQUITY RECEIVERSHIP.  THIS JUDGE-MADE DEVICE WAS DESIGNED
TO PRESERVE THE DEBTOR BUSINESS AS A GOING CONCERN BY CANCELLING CLAIMS
AGAINST IT, IN RETURN FOR WHICH CANCELLATION THE CLAIMANTS RECEIVED
DEBT OR EQUITY INTERESTS IN A NEW CORPORATION, WHICH THEN ACQUIRED THE
ASSETS OF THE OLD CORPORATION IN A JUDICIAL SALE.  SEE T. FINLETTER,
THE LAW OF BANKRUPTCY REORGANIZATION 1-17 (1939).  BY 1926, IT WAS
ESTABLISHED THAT SEC. 3466 APPLIED TO GIVE THE UNITED STATES AN
ABSOLUTE PRIORITY FOR PAYMENT OF DEBTS DUE IT FROM INSOLVENT
CORPORATIONS IN EQUITY RECEIVERSHIP.  PRICE V. UNITED STATES, 269 U.S.,
AT 502-503; AND SEE BLAIR, THE PRIORITY OF THE UNITED STATES IN EQUITY
RECEIVERSHIPS, 39 HARV.L.REV.  1 (1925). 

IN 1933, CONGRESS ENACTED SEC. 77 OF THE BANKRUPTCY ACT, 47 STAT.
1474, PROVIDING A STATUTORY PROCEDURE FOR THE REORGANIZATION OF
RAILROADS.  SECTION 77, AS WELL AS LATER CORPORATE REORGANIZATION
STATUTES DISCUSSED BELOW, WAS DESIGNED TO FOLLOW THE GENERAL FORMAT OF
THE EQUITY RECEIVERSHIP.  AS ONE OF THE EARLY COMMENTATORS ON THE
FEDERAL STATUTES HAS NOTED, "(THE PRINCIPLES OF THE EQUITY RECEIVERSHIP
UNDERLIE NEARLY EVERY SUBSTANTIVE PROVISION OF THE (REORGANIZATION
ACTS)."  FINLETTER, SUPRA, AT 3.  THESE STATUTES WERE NOT, OF COURSE,
MERE CODIFICATIONS OF THE LAW GOVERNING EQUITY RECEIVERSHIPS.  THEY
WERE DESIGNED IN PART TO CORRECT ABUSES AND INEFFICIENCIES THAT HAD
EXISTED UNDER THE PRIOR REGIME.  DUPARQUET CO. V. EVANS, 297 U.S. 216,
218-219 (1936).  HOWEVER, THE PROBLEMS OF THE EQUITY RECEIVERSHIP THAT
LED TO THE LEGISLATIVE INTERVENTION DID NOT INCLUDE THE GOVERNMENT'S
PRIORITY UNDER SEC. 3466, A RELATIVELY UNCONTROVERSIAL ASPECT OF THE
RECEIVERSHIP PROCEDURE. 

NOTHING IN SEC. 77 CASTS ANY DOUBT ON THE CONTINUED PRIORITY OF THE
UNITED STATES UNDER SEC. 3466.  INDEED THE ONLY PROVISION IN THE NEW
STATUTE AFFECTING THE CLAIMS OF THE UNITED STATES WAS SEC. 77(E), WHICH
PROVIDED IN PERTINENT PART: 

"IF THE UNITED STATES OF AMERICA IS DIRECTLY A CREDITOR OR
STOCKHOLDER, THE SECRETARY OF THE TREASURY IS HEREBY AUTHORIZED TO
ACCEPT OR REJECT A PLAN IN RESPECT OF THE INTERESTS OR CLAIMS OF THE
UNITED STATES."  47 STAT. 1478.  THE PURPOSE OF THIS PROVISION WAS TO
OVERCOME THE EFFECT OF TWO PRIOR RULINGS OF THE ATTORNEY GENERAL THAT
THE SECRETARY OF THE TREASURY LACKED AUTHORITY TO COMPROMISE CLAIMS OF
INDEBTEDNESS OWED TO THE GOVERNMENT BY THE RAILROADS, 33 OP.ATTY.GEN. 
423 (1923), 34 OP.ATTY.GEN.  108 (1924).  /8/ 

IN 1934, CONGRESS ENACTED SEC. 77B OF THE BANKRUPTCY ACT, 48 STAT.
911, WHICH PROVIDED A REORGANIZATION SCHEME FOR CORPORATIONS GENERALLY,
CLOSELY MODELED ON THE RAILROAD REORGANIZATION SCHEME OF SEC. 77; SEC.
77BE)(1) GRANTED THE SECRETARY OF THE TREASURY POWER TO COMPROMISE
FEDERAL CALIMS, IN LANGUAGE ALMOST INDENTICAL WITH THAT OF SEC. 77(E). 
48 STAT. 918.  THERE IS NO LANGUAGE IN THE STATUTE, AND NOTHING IN ITS
HISTORY, TO SUGGEST ANY INTENTION TO ALTER THE ESTABLISHED PRIORITY OF
THE UNITED STATES UNDER SEC. 3466.     IN 1935, THE SECRETARY OF THE
TREASURY CALLED THE ATTENTION OF CONGRESS TO THE FACT THAT THE COURTS
WERE CONSTRUING SEC. 77BE)(1) TO INCLUDE THE UNITED STATES AMONG THE
GENERAL CREDITORS IN REORGANIZATION PROCEEDINGS, SO THAT PLANS
DISAPPROVED BY THE SECRETARY FOR FAILURE TO SATISFY A FEDERAL CLAIM
COULD NEVERTHELESS BE CONFIRMED IF THE NECESSARY MAJORITY OF GENERAL
CREDITORS APPROVED.  S. REP. NO. 953, 74TH CONG., 1ST SESS. (1935). 
THE SECRETARY PROPOSED AN AMENDMENT, WHICH, AFTER SOME WEAKENING IN THE
HOUSE, SEE S. REP. NO. 1386, 74TH CONG., 1ST SESS. (1935), WAS
ADOPTED.  /1/  49 STAT. 966 (1935).  IN ITS RELEVANT PROVISIONS, THE
AMENDMENT WAS IDENTICAL WITH PRESENT SEC. 199, AND THE 1938 REVISIONS
WHICH CULMINATED IN THE REPLACEMENT OF SEC. 77B BY PRESENT CHAPTER X
DID NOT AFFECT IT. 

THUS SEC. 199 IS DERIVED FROM AN ENACTMENT DESIGNED TO GRANT THE
GOVERNMENT THE POWER TO COMPROMISE ITS CLAIMS AGAINST DEBTORS, AND AN
AMENDMENT DESIGNED TO ENSURE PRIORITY FOR FEDERAL CLAIMS OVER THE
CLAIMS OF GENERAL CREDITORS.  NOTHING IN THIS BACKGROUND LENDS ANY
SUPPORT TO RESPONDENT'S CLAIM THAT THE DRAFTSMEN OF CHAPTER X MEANT TO
PROVIDE AN EXCEPTION TO THE OPERATION OF SEC. 3466 FOR REORGANIZATION
PROCEEDINGS UNDER THE NEW STATUTE.  INDEED THE ESTABLISHED PRACTICE OF
APPLYING SEC. 3466 TO EQUITY RECEIVERSHIPS, THE ACKNOWLEDGED
PREDECESSOR OF THE CHAPTER X PROCEEDING, COMBINED WITH THE FAILURE TO
INDICATE IN ANY WAY AN INTENT TO ALTER THAT PRACTICE IN THE NEW
STATUTES, SUPPORTS THE CONCLUSION THAT CONGRESS AFFIRMATIVELY MEANT
SEC. 3466 TO APPLY TO STATUTORY REORGANIZATION.  /10/ 

AS WE NOTED AT THE OUTSET, SEC. 3466 MUST APPLY ACCORDING TO ITS
TERMS EXCEPT WHERE EXPRESSLY SUPERSEDED, OR WHERE EXCLUDED BY A LATER
ENACTMENT "PLAINLY INCONSISTENT" WITH IT.  HERE THE STATUTE LITERALLY
APPLIES, AND NO PLAIN INCONSISTENCY WITH THE SCHEME OF CHAPTER X
APPEARS.  THE TERMS OF SEC. 3466 ARE CLEARLY NOT SATISFIED BY THE
REORGANIZATION PLAN HERE IN QUESTION, WHICH PROVIDES PAYMENT IN PART TO
GENERAL CREDITORS AND OTHER NONPREFERRED CLAIMANTS /11/  BEFORE
SATISFACTION OF THE FEDERAL TAX CLAIM.  THEREFORE THE JUDGMENT
UPHOLDING THE PLAN MUST BE REVERSED, AND THE CASE REMANDED TO THE COURT
OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED. 

/1/  SEE, E.G., ACT OF JULY 31, 1789, SEC. 21, 1 STAT. 42; ACT OF
AUGUST 4, 1790, SEC. 45, 1 STAT. 169. 

/2/  SEE ACT OF MARCH 3, 1797, SEC. 5, 1 STAT. 515, AS AMENDED BY
ACT OF MARCH 2, 1799, SEC. 65, 1 STAT. 676. 

/3/  SEE 33 HEN.  8, C. 39, SEC. 74 (1541); 13 ELIZ.  1, C. 4
(1570). 

/4/  SECTION 199 PROVIDES: 

"IF THE UNITED STATES IS A SECURED OR UNSECURED CREDITOR OR
STOCKHOLDER OF A DEBTOR, THE CLAIMS OR STOCK THEREOF SHALL BE DEEMED TO
BE AFFECTED BY A PLAN UNDER THIS CHAPTER, AND THE SECRETARY OF THE
TREASURY IS AUTHORIZED TO ACCEPT OR REJECT A PLAN IN RESPECT OF THE
CLAIMS OR STOCK OF THE UNITED STATES.  IF, IN ANY PROCEEDING UNDER THIS
CHAPTER, THE UNITED STATES IS A SECURED OR UNSECURED CREDITOR ON CLAIMS
FOR TAXES OR CUSTOMS DUTIES (WHETHER OR NOT THE UNITED STATES HAS ANY
OTHER INTEREST IN, OR CLAIM AGAINST THE DEBTOR, AS SECURED OR UNSECURED
CREDITOR OR STOCKHOLDER), NO PLAN WHICH DOES NOT PROVIDE FOR THE
PAYMENT THEREOF SHALL BE CONFIRMED BY THE JUDGE EXCEPT UPON THE
ACCEPTANCE OF A LESSER AMOUNT BY THE SECRETARY OF THE TREASURY
CERTIFIED TO THE COURT:  PROVIDED, THAT IF THE SECRETARY OF THE
TREASURY SHALL FAIL TO ACCEPT OR REJECT A PLAN FOR MORE THAN NINETY
DAYS AFTER RECEIPT OF WRITTEN NOTICE SO TO DO FROM THE COURT TO WHICH
THE PLAN HAS BEEN PROPOSED, ACCOMPANIED BY A CERTIFIED COPY OF THE
PLAN, HIS CONSENT SHALL BE CONCLUSIVELY, PRESUMED."  11 U.S.C. 599. 

/5/  THE GOVERNMENT ARGUES IN THE ALTERNATIVE THAT EVEN IF SEC. 3466
DOES NOT APPLY TO CLAIMS AGAINST DEBTORS IN CHAPTER X, THE PLAN HERE IS
DEFECTIVE EVEN UNDER THE SEC. 199 REQUIREMENT OF "PAYMENT" ALONE, SINCE
THE DEFENDANT OF PAYMENT OF THE GOVERNMENT'S TAX CLAIM WHILE THE CASH
FLOW FROM THE INSTALLMENT CONTRACT IS USED TO SATISFY THE CLAIMS OF
LOWER RANKING CREDITORS MEANS THAT THE GOVERNMENT IS RECEIVING A
"LESSER AMOUNT," WHICH SEC. 199 IN ITS TERMS CONTRASTS WITH "PAYMENT,"
THAN WHAT IT WOULD RECEIVE IF IT HAD FIRST CLAIM ON ALL CASH AS IT CAME
IN.  THE ARGUMENT IS PREMISED ON THE FACT THAT THE GOVERNMENT CANNOT
COLLECT POST-PETITION INTEREST ON ITS CLAIM.  CITY OF NEW YORK V.
SAPER, 336 U.S. 328 (1949); UNITED STATES V. EDENS, 189 F.2D 876 (C.A.
4TH CIR. 1951), AFF'D PER CURIAM, 342 U.S. 912 (1952).  BECAUSE OF OUR
DETERMINATION THAT SEC. 3466 APPLIES HERE AND REQUIRES PAYMENT FIRST IN
TIME, WE NEED NOT REACH THIS CONTENTION. 

/6/  IN THE NORMAL CHAPTER X REORGANIZATION NO PROVISION NEED BE
MADE FOR PRIORITY IN TIME OF DIFFERENT CLAIMS.  CLAIMANTS RECEIVE DEBT
OR EQUITY INTERESTS IN A GOING CONCERN IN THE USUAL SITUATION, AND THE
PRIORITY OF ONE CLAIMANT OVER ANOTHER MEANS ONLY THAT IF THERE IS
INSUFFICIENT GOING-CONCERN VALUE TO SATISFY BOTH CLAIMS, THE CLAIMANT
WITH PRIORITY MUST RECEIVE VALUE EQUIVALENT TO HIS FULL CLAIM IF THE
OTHER CLAIMANT IS TO RECEIVE ANYTHING.  HERE A SECOND SENSE OF PRIORITY
IS INVOLVED: WHEN CASH BECOMES AVAILABLE TO PAY OFF OUTSTANDING CLAIMS
ONLY OVER A PERIOD OF TIME, THE CLAIMANT WITH "PRIORITY" IN THIS SECOND
SENSE RECEIVES HIS CASH FIRST IN TIME; THE NONPRIORITY CLAIMANT MAY
RECEIVE FULL PAYMENT, BUT RECEIVES IT LATER.  IN ITS LITERAL LANGUAGE--
"FIRST SATISFIED"-- SEC. 3466 PROVIDES THIS KIND OF PRIORITY, AND
RESPONDENT HAS NOT ARGUED THAT IT SHOULD NOT BE SO CONSTRUED IF IT
APPLIES HERE. 

/7/  IT SEEMS TO HAVE LONG BEEN ASSUMED THAT THE TERM INSOLVENT IN
SEC. 3466 MEANT INSOLVENT IN THE BANKRUPTCY SENSE, AND THIS COURT
CLEARLY SO HELD IN UNITED STATES V. OKLAHOMA, 261 U.S. 253, 260-261
(1923). 

/8/  SEE SENATE COMMITTEE ON THE JUDICIARY, CRITICISMS AND
SUGGESTIONS RELATING TO H.R. 14359 AND S. 5551, AMENDING THE BANKRUPTCY
ACT 19-20, 72D CONG., 2D SESS. (COMM. PRINT.  1933). 

/9/  THE SECRETARY HAD PROPOSED THAT HE BE GIVEN A VETO OVER PLANS
THAT FAILED TO PROVIDE FOR "PAYMENT" OF ANY FEDERAL CLAIMS.  SEE S.
REP. NO. 953, SUPRA.  THE HOUSE IMPOSED THE "PAYMENT" REQUIREMENT ONLY
UPON TAX AND CUSTOMS CLAIMS, POSSIBLY INTENDING TO LEAVE THE GOVERNMENT
IN THE POSITION OF A GENERAL CREDITOR WITH RESPECT TO OTHER CLAIMS, SEE
S. REP. NO. 1386, SUPRA, AND THIS WAS THE FORM IN WHICH THE AMENDMENT
WAS ADOPTED.  SECTION 199 PRESERVES THIS APPARENT DISTINCTION BETWEEN
TAX AND OTHER CLAIMS, SEE TEXT AT N. 4, SUPRA.  HOWEVER THE COURTS,
RELYING ON THE STRONG PRESUMPTION AGAINST IMPLIED EXCEPTIONS TO SEC.
3466, HAVE NOT TREATED THE GOVERNMENT AS A GENERAL CREDITOR IN ITS
NONTAX CLAIMS, BUT RATHER HAVE HELD THAT IT HAS PRIORITY UNDER SEC.
3466.  UNITED STATES V. ANDERSON, 334 F.2D 111 (C.A. 5TH CIR. 1964); IN
RE CHERRY VALLEY HOMES, INC., 255 F.2D 706 (C.A. 3D CIR. 1958);
RECONSTRUCTION FINANCE CORP. V. FLYNN, 175 F.2D 761 (C.A. 2D CIR.
1949). 

IF, AS APPEARS FROM THE PRESENT CASE, SEC. 3466, IF APPLICABLE, MAY,
IN SOME INSTANCES, GIVE THE GOVERNMENT GREATER PROTECTION THAN SEC.
199, IT WOULD BE ANOMALOUS TO DENY THAT PROTECTION TO GOVERNMENT TAX
CLAIMS WHILE GRANTING IT TO NONTAX CLAIMS, SINCE CONGRESS CLEARLY
INTENDED THAT TAX CLAIMS SHOULD HAVE GREATER PROTECTION. 

/10/  THE LEADING AUTHORITIES AGREE THAT SEC. 3466 APPLIES TO
CHAPTER X PROCEEDINGS.  FINLETTER, SUPRA, AT 388-393; 6A COLLIER ON
BANKRUPTCY 269 N. 11 (14TH ED. 1969). 

/11/  THIS CASE DOES NOT RAISE THE QUESTION, NEVER DECIDED BY THIS
COURT, WHETHER SEC. 3466 GRANTS THE GOVERNMENT PRIORITY OVER THE PRIOR
SPECIFIC LIENS OF SECURED CREDITORS.  SEE UNITED STATES V. GILBERT
ASSOCIATES, 345 U.S. 361, 365-366 (1935). 

MR. JUSTICE DOUGLAS, CONCURRING. 

I JOIN THE OPINION OF THE COURT.  AS IT HOLDS, THE CHANDLER ACT
PROVIDES THE STANDARD FOR TREATMENT OF CLAIMS OF THE UNITED STATES AS
"A SECURED OR UNSECURED CREDITOR" OF THE DEBTOR.  THOSE ARE THE WORDS
OF SEC. 199, 52 STAT. 893, 11 U.S.C. 559.  SECTION 199 GOES ON TO
PROVIDE THAT "NO PLAN WHICH DOES NOT PROVIDE FOR THE PAYMENT" OF THE
CLAIMS OF THE UNITED STATES FOR TAXES OR CUSTOMS DUTIES SHALL BE
"CONFIRMED" BY THE JUDGE, "EXCEPT UPON THE ACCEPTANCE OF A LESSER
AMOUNT BY THE SECRETARY OF THE TREASURY." 

THE QUESTION THEREFORE IS WHAT KIND OF "PAYMENT," AS USED IN SEC.
199, THE CLAIM OF THE UNITED STATES MUST RECEIVE IN A CHAPTER X
PROCEEDING. 

THERE IS NO DOUBT BUT THAT THE CLAIM OF THE UNITED STATES HAS
PRIORITY BY REASON OF SEC. 3466 OF THE REVISED STATUTES, 31 U.S.C.
191. 

WITH THE PRIORITIES AMONG CREDITORS.  SECTION 216(7) SAYS THAT WHERE
"ANY CLASS OF CREDITORS" AFFECTED BY THE PLAN DOES NOT ACCEPT THE PLAN,
THOSE CLAIMS CAN BE DEALT WITH IN SEVERAL WAYS, INCLUDING A METHOD
WHICH "EQUITABLY AND FAIRLY" PROTECTS THEM.  AND SEC. 221(2) OF THE ACT
PROVIDES THAT THE JUDGE SHALL CONFIRM THE PLAN IF SATISFIED THAT IT IS
"FAIR AND EQUITABLE, AND FEASIBLE." 

THE WORDS "FAIR AND EQUITABLE" ARE WORDS OF ART; WE HAVE MADE
UNMISTAKABLY CLEAR THAT COMPROMISING THE RIGHTS OF SENIOR CREDITORS TO
PROTECT JUNIOR CREDITORS IS NOT "FAIR AND EQUITABLE" TREATMENT.  CASE
V. LOS ANGELES LUMBER CO., 308 U.S. 106, 115-116; CONSOLIDATED ROCK CO.
V. DU BOIS, 312 U.S. 510, 527-529.  WE SAID IN THE DU BOIS CASE: 

"(IT IS PLAIN THAT WHILE CREDITORS MAY BE GIVEN INFERIOR GRADES OF
SECURITIES, THEIR 'SUPERIOR RIGHTS' MUST BE RECOGNIZED.  CLEARLY, THOSE
PRIOR RIGHTS ARE NOT RECOGNIZED, IN CASES WHERE STOCKHOLDERS ARE
PARTICIPATING IN THE PLAN, IF CREDITORS ARE GIVEN ONLY A FACE AMOUNT OF
INFERIOR SECURITIES EQUAL TO THE FACE AMOUNT OF THEIR CLAIMS.  THEY
MUST RECEIVE, IN ADDITION, COMPENSATION FOR THE SENIOR RIGHTS WHICH
THEY ARE TO SURRENDER.  IF THEY RECEIVE LESS THAN THAT FULL
COMPENSATORY TREATMENT, SOME OF THEIR PROPERTY RIGHTS WILL BE
APPROPRIATED FOR THE BENEFIT OF STOCKHOLDERS WITHOUT COMPENSATION. 
THAT IS NOT PERMISSIBLE."  ID., AT 528-529. 

THE PRESENT PLAN IS LIKEWISE INFIRM BECAUSE IT PROVIDES JUNIOR
CREDITORS WITH IMMEDIATE, PARTIAL PAYMENT, WHILE MAKING THE UNITED
STATES WITH A PRIOR CLAIM ACCEPT DELAYED AND THEREFORE DISCOUNTED
PAYMENT OF ITS CLAIM WITH ALL THE ATTENDANT RISKS.  IF THE UNITED
STATES IS TO FORGO THE RIGHT TO BE PAID OUT OF THE FIRST AVAILABLE
FUNDS, IT MUST RECEIVE EQUIVALENT COMPENSATION IN RETURN.  TKHE COURT
OF APPEALS THOUGHT THAT IT CONTRADICTED SEC. 216 AND SEC. 221 TO APPLY
SEC. 3466 TO A CHAPTER X PLAN.  TODAY WE TAKE THE CONTRARY VIEW. 
221 ARE RELEVANT IN PROVIDING HOW THAT PRIORITY SHALL BE HONORED. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WALTERS, PETER L. STRAUSS, AND CROMBIE J. D. GARRETT. 

SIGMUND J. BECK ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS EDWARD B. HOPPER II.
..END :












CRAYCROFT V. FERRALL, 397 U.S. 335 


       CRAYCROFT V. FERRALL ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT

        NO. 718, MISC.  DECIDED MARCH 30, 1970 


CERTIORARI GRANTED; 408 F.2D 587, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. 

UPON CONSIDERATION OF THE SUGGESTION OF THE SOLICITOR GENERAL AND
UPON AN EXAMINATION OF THE ENTIRE RECORD, THE PETITION FOR A WRIT OF
CERTIORARI IS GRANTED, THE JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT IS VACATED AND THE CASE IS REMANDED TO
THAT COURT. 

THE SOLICITOR GENERAL CONCEDES THAT THE ADMINISTRATIVE REMEDIES THAT
THE COURT OF APPEALS HELD SHOULD FIRST BE EXHAUSTED BY THE PETITIONER,
HAVE EITHER BEEN EXHAUSTED OR ARE NONEXISTENT.  THE SOLE REMAINING
QUESTION THEREFORE SEEMS TO BE WHETHER PETITIONER'S FAILURE TO SEEK
RELIEF IN THE COURT OF MILITARY APPEALS PRECLUDES CONSIDERATION OF
PETITIONER'S CLAIMS BY THE FEDERAL COURTS.  WHILE THE SOLICITOR GENERAL
CONCEDES THAT RESORT TO THAT JUDICIAL REMEDY DOES NOT PRECLUDE
CONSIDERATION OF PETITIONER'S CLAIM BY THE FEDERAL COURTS, THERE IS A
CONFLICT AMONG THE CIRCUITS.  IT IS FOR CONSIDERATION OF THAT QUESTION,
OR ALTERNATIVELY THE MERITS, THAT THE CASE IS REMANDED. 

JOHN CAUGHLAN FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD FOR RESPONDENTS. 
..END :















JOHNSTON V. HAWAII, 397 U.S. 336 


       JOHNSTON ET AL. V. HAWAII

        APPEAL FROM THE SUPREME COURT OF HAWAII

        NO. 1381, MISC.  DECIDED MARCH 30, 1970 


51 HAW.  195, 456 P.2D 805, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

NORMAN DORSEN FOR APPELLANTS. 
..END :














UNITED STATES V. VAN LEEUWEN, 397 U.S. 249 


       UNITED STATES V. VAN LEEUWEN

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

        NO. 403.  ARGUED FEBRUARY 25, 1970-- DECIDED MARCH 23,
1970 


RESPONDENT MAILED TWO 12-POUND PACKAGES OF COINS AT MT. VERNON,
WASHINGTON, NEAR THE CANADIAN BORDER, TO ADDRESSES IN CALIFORNIA AND
TENNESSEE, UNDER CIRCUMSTANCES AROUSING SUSPICION.  THE TYPE OF MAILING
WAS FIRST CLASS AND THUS THE PACKAGES WERE NOT SUBJECT TO DISCRETIONARY
INSPECTION.  A 29-HOUR DETENTION OF THE PACKAGES, OCCASIONED MAINLY BY
THE TIME DIFFERENTIAL IN OBTAINING INFORMATION ABOUT THE TENNESSEE
ADDRESSEE BEFORE A SEARCH WARRANT WAS OBTAINED, CAUSED THE COURT OF
APPEALS TO HOLD THAT THE COINS WERE IMPROPERLY ADMITTED IN EVIDENCE
AGAINST RESPONDENT WHO HAD BEEN FOUND GUILTY OF ILLEGALLY IMPORTING
GOLD COINS FROM CANADA.  HELD:  UNDER THE FACTS OF THIS CASE THE 29
HOUR DELAY IS NOT "UNREASONABLE" UNDER THE FOURTH AMENDMENT.  PP. 251
253. 

414 F.2D 758, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, AT ABOUT 1:30 P.M. ON THURSDAY, MARCH 28, 1969, MAILED
TWO 12-POUND PACKAGES AT THE POST OFFICE IN MT. VERNON, WASHINGTON, A
TOWN SOME 60 MILES FROM THE CANADIAN BORDER.  ONE PACKAGE WAS ADDRESSED
TO A POST OFFICE BOX IN VAN NUYS, CALIFORNIA, AND THE OTHER TO A POST
OFFICE BOX IN NASHVILLE, TENNESSEE.  RESPONDENT DECLARED THEY CONTAINED
COINS.  EACH PACKAGE WAS TO BE SENT AIRMAIL REGISTERED AND EACH WAS
INSURED FOR $10,000, A TYPE OF MAILING THAT THE PARTIES AGREE WAS FIRST
CLASS, MAKING THEM NOT SUBJECT TO DISCRETIONARY INSPECTION.  /1/ 

WHEN THE POSTAL CLERK TOLD A POLICEMAN WHO HAPPENED TO BE PRESENT HE
WAS SUSPICIOUS OF THE PACKAGES, THE POLICEMAN AT ONCE NOTICED THAT THE
RETURN ADDRESS ON THE PACKAGES WAS A VACANT HOUSING AREA OF A NEARBY
JUNIOR COLLEGE, AND THAT THE LICENSE PLATES OF RESPONDENT'S CAR WERE
BRITISH COLUMBIA.  THE POLICEMAN CALLED THE CANADIAN POLICE, WHO CALLED
CUSTOMS IN SEATTLE.  AT 3 O'CLOCK THAT AFTERNOON CUSTOMS CALLED VAN
NUYS AND LEARNED THAT THE ADDRESSEE OF ONE PACKAGE WAS UNDER
INVESTIGATION IN VAN NUYS FOR TRAFFICKING IN ILLEGAL COINS.  DUE TO THE
TIME DIFFERENTIAL, SEATTLE CUSTOMS WAS UNABLE TO REACH NASHVILLE UNTIL
THE FOLLOWING MORNING, MARCH 29, WHEN SEATTLE WAS ADVISED THAT THE
SECOND ADDRESSEE WAS ALSO BEING INVESTIGATED FOR THE SAME CRIME.  A
CUSTOMS OFFICIAL IN SEATTLE THEREUPON FILED AN AFFIDAVIT FOR A SEARCH
WARRANT FOR BOTH PACKAGES WITH A UNITED STATES COMMISSIONER, WHO ISSUED
THE SEARCH WARRANT AT 4 P.M., AND IT WAS EXECUTED IN MT. VERNON AT 6:30
P.M., 2 1/2 HOURS LATER.  THEREUPON THE PACKAGES WERE OPENED,
INSPECTED, RESEALED, AND PROMPTLY SENT ON THEIR WAY. 

OTHER EVIDENCE SHOWED THAT RESPONDENT HAD BROUGHT THE TWO PACKAGES
IN FROM CANADA WITHOUT DECLARING THEM.  HE WAS TRIED FOR ILLEGALLY
IMPORTING GOLD COINS IN VIOLATION OF 18 U.S.C. 545 AND FOUND GUILTY AND
SENTENCED AND FINED.  ON APPEAL, THE COURT OF APPEALS REVERSED, HOLDING
THAT THE COINS WERE IMPROPERLY ADMITTED IN EVIDENCE BECAUSE A TIMELY
WARRANT HAD NOT BEEN OBTAINED.  414 F.2D 758.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI, 396 U.S. 885.  WE REVERSE. 

IT HAS LONG BEEN HELD THAT FIRST-CLASS MAIL SUCH AS LETTERS AND
SEALED PACKAGES SUBJECT TO LETTER POSTAGE-- AS DISTINGUISHED FROM
NEWSPAPERS, MAGAZINES, PAMPHLETS, AND OTHER PRINTED MATTER-- IS FREE
FROM INSPECTION BY POSTAL AUTHORITIES, EXCEPT IN THE MANNER PROVIDED BY
THE FOURTH AMENDMENT.  AS STATED IN EX PARTE JACKSON, 96 U.S. 727, 733,
DECIDED IN 1878: 

"LETTERS AND SEALED PACKAGES OF THIS KIND IN THE MAIL ARE AS FULLY
GUARDED FROM EXAMINATION AND INSPECTION, EXCEPT AS TO THEIR OUTWARD
FROM AND WEIGHT, AS IF THEY WERE RETAINED BY THE PARTIES FORWARDING
THEM IN THEIR OWN DOMICILES.  THE CONSTITUTIONAL GUARANTY OF THE RIGHT
OF THE PEOPLE TO BE SECURE IN THEIR PAPERS AGAINST UNREASONABLE
SEARCHES AND SEIZURES EXTENDS TO THEIR PAPERS, THUS CLOSED AGAINST
INSPECTION, WHEREVER THEY MAY BE.  WHILST IN THE MAIL, THEY CAN ONLY BE
OPENED AND EXAMINED UNDER LIKE WARRANT, ISSUED UPON SIMILAR OATH OR
AFFIRMATION, PARTICULARLY DESCRIBING THE THING TO BE SEIZED, AS IS
REQUIRED WHEN PAPERS ARE SUBJECTED TO SEARCH IN ONE'S OWN HOUSEHOLD. 
NO LAW OF CONGRESS CAN PLACE IN THE HANDS OF OFFICIALS CONNECTED WITH
THE POSTAL SERVICE ANY AUTHORITY TO INVADE THE SECRECY OF LETTERS AND
SUCH SEALED PACKAGES IN THE MAIL; AND ALL REGULATIONS ADOPTED AS TO
MAIL MATTER OF THIS KIND MUST BE IN SUBORDINATION TO THE GREAT
PRINCIPLE EMBODIED IN THE FOURTH AMENDMENT OF THE CONSTITUTION." 

THE COURSE OF EVENTS SINCE 1878 HAS UNDERLINED THE RELEVANCE AND
IMPORTANCE OF THE POST OFFICE TO OUR CONSTITUTIONAL RIGHTS.  MR.
JUSTICE HOLMES IN MILWAUKEE PUB. CO. V. BURLESON, 255 U.S. 407, 437
(DISSENTING OPINION), SAID THAT "THE USE OF THE MAILS IS ALMOST AS MUCH
A PART OF FREE SPEECH AS THE RIGHT TO USE OUR TONGUES."  WE HAVE
EMPHASIZED OVER AND OVER AGAIN THAT WHILE CONGRESS MAY CLASSIFY THE
MAIL AND FIX THE CHARGES FOR ITS CARRIAGE, IT MAY NOT SET UP REGIMES OF
CENSORSHIP OVER IT, HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, OR
ENCUMBER ITS FLOW BY SETTING "ADMINISTRATIVE OFFICIALS ASTRIDE THE FLOW
OF MAIL TO INSPECT IT, APPRAISE IT, WIRTE THE ADDRESSEE ABOUT IT, AND
AWAIT A RESPONSE BEFORE DISPATCHING THE MAIL" TO HIM.  /2/  LAMONT V.
POSTMASTER GENERAL, 381 U.S. 301, 306.  YET EVEN FIRST-CLASS MAIL IS
NOT BEYOND THE REACH OF ALL INSPECTION; AND THE SOLE QUESTION HERE IS
WHETHER THE CONDITIONS FOR ITS DETENTION AND INSPECTION HAD BEEN
SATISFIED.  WE THINK THEY HAD BEEN. 

THE NATURE AND WEIGHT OF THE PACKAGES, THE FICTITIOUS RETURN
ADDRESS, AND THE BRITISH COLUMBIA LICENSE PLATES OF RESPONDENT WHO MADE
THE MAILINGS IN THIS BORDER TOWN CERTAINLY JUSTIFIED DETENTION, WITHOUT
A WARRANT, WHILE AN INVESTIGATION WAS MADE.  THE "PROTECTIVE SEARCH FOR
WEAPONS" OF A SUSPECT WHICH THE COURT APPROVED IN TERRY V. OHIO, 393
U.S. 1, 20-27, EVEN WHEN PROBABLE CAUSE FOR AN ARREST DID NOT EXIST,
WENT FURTHER THAN WE NEED GO HERE.  THE ONLY THING DONE HERE ON THE
BASIS OF SUSPICION WAS DETENTION OF THE PACKAGES.  THERE WAS AT THAT
POINT NO POSSIBLE INVASION OF THE RIGHT "TO BE SECURE" IN THE "PERSONS,
HOUSES, PAPERS, AND EFFECTS" PROTECTED BY THE FOURTH AMENDMENT AGAINST
"UNREASONABLE SEARCHES AND SEIZURES."  THEORETICALLY-- AND IT IS THEORY
ONLY THAT RESPONDENT HAS ON HIS SIDE-- DETENTION OF MAIL COULD AT SOME
POINT BECOME AN UNREASONABLE SEIZURE OF "PAPERS" OR "EFFECTS" WITHIN
THE MEANING OF THE FOURTH AMENDMENT.  DETENTION FOR 1 1/2 HOURS-- FROM
1:30 P.M. TO 3 P.M.-- FOR AN INVESTIGATION CERTAINLY WAS NOT EXCESSIVE;
AND AT THE END OF THAT TIME PROBABLE CAUSE EXISTED FOR BELIEVING THAT
THE CALIFORNIA PACKAGE WAS PART OF AN ILLICIT PROJECT.  A WARRANT COULD
HAVE BEEN OBTAINED THAT DAY FOR ONE PACKAGE; YET THE MYSTERY OF THE
OTHER PACKAGE REMAINED UNSOLVED AND FEDERAL OFFICIALS IN TENNESSEE
COULD NOT BE REACHED BECAUSE OF THE TIME DIFFERENTIAL.  THE NEXT
MORNING THEY WERE REACHED AND IT WAS LEARNED THAT THE SECOND PACKAGE
WAS ALSO PROBABLY PART OF AN ILLICIT PROJECT.  BY 4 P.M.-- OR 26 1/2
HOURS AFTER THE MAILING IN MT. VERNON-- A SEARCH WARRANT WAS OBTAINED
IN SEATTLE AND AT 6:30 P.M., OR 29 HOURS AFTER THE MAILING, THE SEARCH
WARRANT REACHED MT. VERNON, A SPEEDY TRANSMISSION CONSIDERING THE RUSH
HOUR TIME OF DAY AND THE CONGESTED HIGHWAY. 

NO INTEREST PROTECTED BY THE FOURTH AMENDMENT WAS INVADED BY
FORWARDING THE PACKAGES THE FOLLOWING DAY RATHER THAN THE DAY WHEN THEY
WERE DEPOSITED.  THE SIGNIFICANT FOURTH AMENDMENT INTEREST WAS IN THE
PRIVACY OF THIS FIRST-CLASS MAIL; AND THAT PRIVACY WAS NOT DISTURBED OR
INVADED UNTIL THE APPROVAL OF THE MAGISTRATE WAS OBTAINED. 

THE RULE OF OUR DECISIONS CERTAINLY IS NOT THE FIRST-CLASS MAIL CAN
BE DETAINED 29 HOURS AFTER MAILING IN ORDER TO OBTAIN THE SEARCH
WARRANT NEEDED FOR ITS INSPECTION.  WE ONLY HOLD THAT ON THE FACTS OF
THIS CASE-- THE NATURE OF THE MAILINGS, THEIR SUSPICIOUS CHARACTER, THE
FACT THAT THERE WERE TWO PACKAGES GOING TO SEPARATE DESTINATIONS, THE
UNAVOIDABLE DELAY IN CONTACTING THE MORE DISTANT OF THE TWO
DESTINATIONS, THE DISTANCE BETWEEN MT. VERNON AND SEATTLE-- A 29-HOUR
DELAY BETWEEN THE MAILINGS AND THE SERVICE OF THE WARRANT CANNOT BE
SAID TO BE "UNREASONABLE" WITHIN THE MEANING OF THE FOURTH AMENDMENT. 
DETENTION FOR THIS LIMITED TIME WAS, INDEED, THE PRUDENT ACT RATHER
THAN LETTING THE PACKAGES ENTER THE MAILS AND THEN, IN CASE THE INITIAL
SUSPICIONS WERE CONFIRMED, TRYING TO LOCATE THEM EN ROUTE AND ENLISTING
THE HELP OF DISTANT FEDERAL OFFICIALS IN SERVING THE WARRANT. 

              REVERSED. 

/1/  39 CFR 131.2 DESCRIBES "FIRST CLASS" MAIL AS "MATTER CLOSED
AGAINST POSTAL INSPECTION," WHICH FOLLOWS THE DEFINITION IN 39 U.S.C.
4251(A). 

/2/  THE QUESTION AS TO THE RIGHT OF THE ADDRESSEE TO STOP
DELIVERIES IS A SEPARATE AND DISTINCT ONE.  SEE NO. 399, ROWAN V. POST
OFFICE, POST, P. 728. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WILSON, JOSEPH J.
CONNOLLY, BEATRICE ROSENBERG, AND SIDNEY M. GLAZER. 

CRAIG G. DAVIS, BY APPOINTMENT OF THE COURT, 396 U.S. 952, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :



















GOLDBERG V. KELLY, 397 U.S. 254 


       GOLDBERG, COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW

           YORK V. KELLY ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

        NO. 62.  ARGUED OCTOBER 13, 1969-- DECIDED MARCH 23, 1970 


APPELLEES ARE NEW YORK CITY RESIDENTS RECIEVING FINANCIAL AID UNDER
THE FEDERALLY ASSISTED AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM
OR UNDER NEW YORK STATE'S GENERAL HOME RELIEF PROGRAM WHO ALLEGE THAT
OFFICIALS ADMINISTERING THESE PROGRAMS TERMINATED, OR WERE ABOUT TO
TERMINATE, SUCH AID WITHOUT PRIOR NOTICE AND HEARING, THEREBY DENYING
THEM DUE PROCESS OF LAW.  THE DISTRICT COURT HELD THAT ONLY A PRE
TERMINATION EVIDENTIARY HEARING WOULD SATISFY THE CONSTITUTIONAL
COMMAND, AND REJECTED THE ARGUMENT OF THE WELFARE OFFICIALS THAT THE
COMBINATION OF THE EXISTING POST-TERMINATION "FAIR HEARING" AND
INFORMAL PRE-TERMINATION REVIEW WAS SUFFICIENT.  HELD: 

1.  WELFARE BENEFITS ARE A MATTER OF STATUTORY ENTITLEMENT FOR
PERSONS QUALIFIED TO RECEIVE THEM AND PROCEDURAL DUE PROCESS IS
APPLICABLE TO THEIR TERMINATION.  PP. 261-263. 

2.  THE INTEREST OF THE ELIGIBLE RECIPIENT IN THE UNINTERRUPTED
RECEIPT OF PUBLIC ASSISTANCE, WHICH PROVIDES HIM WITH ESSENTIAL FOOD,
CLOTHING, HOUSING, AND MEDICAL CARE, COUPLED WITH THE STATE'S INTEREST
THAT HIS PAYMENTS NOT BE ERRONEOUSLY TERMINATED, CLEARLY OUTWEIGHS THE
STATE'S COMPETING CONCERN TO PREVENT ANY INCREASE IN ITS FISCAL AND
ADMINISTRATIVE BURDENS.  PP. 264-266. 

3.  A PRE-TERMINATION EVIDENTIARY HEARING IS NECESSARY TO PROVIDE
THE WELFARE RECIPIENT WITH PROCEDURAL DUE PROCESS.  PP. 264, 266-271. 

(A) SUCH HEARING NEED NOT TAKE THE FORM OF A JUDICIAL OR QUASI
JUDICIAL TRIAL, BUT THE RECIPIENT MUST BE PROVIDED WITH TIMELY AND
ADEQUATE NOTICE DETAILING THE REASONS FOR TERMINATION, AND AN EFFECTIVE
OPPORTUNITY TO DEFEND BY CONFRONTING ADVERSE WITNESSES AND BY
PRESENTING HIS OWN ARGUMENTS AND EVIDENCE ORALLY BEFORE THE DECISION
MAKER.  PP. 266-270. 

(B) COUNSEL NEED NOT BE FURNISHED AT THE PRE-TERMINATION HEARING,
BUT THE RECIPIENT MUST BE ALLOWED TO RETAIN AN ATTORNEY IF HE SO
DESIRES.  P. 270. 

(C) THE DECISIONMAKER NEED NOT FILE A FULL OPINION OR MAKE FORMAL
FINDINGS OF FACT OR CONCLUSIONS OF LAW BUT, SHOULD STATE THE REASONS
FOR HIS DETERMINATION AND INDICATE THE EVIDENCE HE RELIED ON.  P. 271. 

(D) THE DECISIONMAKER MUST BE IMPARTIAL, AND ALTHOUGH PRIOR
INVOLVEMENT IN SOME ASPECTS OF A CASE WILL NOT NECESSARILY BAR A
WELFARE OFFICIAL FROM ACTING AS DECISION MAKER, HE SHOULD NOT HAVE
PARTICIPATED IN MAKING THE DETERMINATION UNDER REVIEW.  P. 271. 

294 F.SUPP.  893, AFFIRMED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER A STATE THAT TERMINATES PUBLIC
ASSISTANCE PAYMENTS TO A PARTICULAR RECIPIENT WITHOUT AFFORDING HIM THE
OPPORTUNITY FOR AN EVIDENTIARY HEARING PRIOR TO TERMINATION DENIES THE
RECIPIENT PROCEDURAL DUE PROCESS IN VIOLATION OF THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT. 

THIS ACTION WAS BROUGHT IN THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK BY RESIDENTS OF NEW YORK CITY RECEIVING FINICIAL
AID UNDER THE FEDERALLY ASSISTED PROBRAM OF AID TO FAMILIES WITH
DEPENDENT CHILDREN (AFDC) OR UNDER NEW YORK STATE'S GENERAL HOME RELIEF
PROGRAM.  /1/  THEIR COMPLAINT ALLEGED THAT THE NEW YORK STATE AND NEW
YORK CITY OFFICIALS ADMINISTERING THESE PROGRAMS TERMINATED, OR WERE
ABOUT TO TERMINATE, SUCH AID WITHOUT PRIOR NOTICE AND HEARING, THEREBY
DENYING THEM DUE PROCESS OF LAW.  /2/  AT THE TIME THE SUITS WERE FILED
THERE WAS NO REQUIREMENT OF PRIOR NOTICE OR HEARING OF ANY KIND BEFORE
TERMINATION OF FINANCIAL AID.  HOWEVER, THE STATE AND CITY ADOPTED
PROCEDURES FOR NOTICE AND HEARING AFTER THE SUITS WERE BROUGHT, AND THE
PLAINTIFFS, APPELLEES HERE, THEN CHALLENGED THE CONSTITUTIONAL ADEQUACY
OF THOSE PROCEDURES. 

THE STATE COMMISSIONER OF SOCIAL SERVICES AMANDED THE STATE
DEPARTMENT OF SOCIAL SERVICES' OFFICIAL REGULATIONS TO REQUIRE THAT
LOCAL SOCIAL SERVICES OFFICIALS PROPOSING TO DISCONTINUE OR SUSPEND A
RECIPIENT'S FINANCIAL AID DO SO ACCORDING TO A PROCEDURE THAT CONFORMS
TO EITHER SUBDIVISION (A) OR SUBDIVISION (B) OF SEC. 351.26 OF THE
REGULATIONS AS AMENDED.  /3/  THE CITY OF NEW YORK ELECTED TO
PROMULGATE A LOCAL PROCEDURE ACCORDING TO SUBDIVISION (B).  THAT
SUBDIVISION, SO FAR AS HERE PERTINENT, PROVIDES THAT THE LOCAL
PROCEDURE MUST INCLUDE THE GIVING OF NOTICE TO THE RECIPIENT OF THE
REASONS FOR A PROPOSED DISCONTINUANCE OR SUSPENSION AT LEAST SEVEN DAYS
PRIOR TO ITS EFFECTIVE DATE, WITH NOTICE ALSO THAT UPON REQUEST THE
RECIPIENT MAY HAVE THE PROPOSAL REVIEWED BY A LOCAL WELFARE OFFICIAL
HOLDING A POSITION SUPERIOR TO THAT OF THE SUPERVISOR WHO APPROVED THE
PROPOSED DISCONTINUANCE OR SUSPENSION, AND, FURTHER, THAT THE RECIPIENT
MAY SUBMIT, FOR PURPOSES OF THE REVIEW, A WRITTEN STATEMENT TO
DEMONSTRATE WHY HIS GRANT SHOULD NOT BE DISCONTINUED OR SUSPENDED.  THE
DECISION BY THE REVIEWING OFFICIAL WHETHER TO DISCONTINUE OR SUSPEND
AID MUST BE MADE EXPEDITIOUSLY, WITH WRITTEN NOTICE OF THE DECISION TO
THE RECIPIENT.  THE SECTION FURTHER EXPRESSLY PROVIDES THAT
"(ASSISTANCE SHALL NOT BE DISCONTINUED OR SUSPENDED PRIOR TO THE DATE
SUCH NOTICE OF DECISION IS SENT TO THE RECIPIENT AND HIS
REPRESENTATIVE, IF ANY, OR PRIOR TO THE PROPOSED EFFECTIVE DATE OF
DISCONTINUANCE OR SUSPENSION, WHICHEVER OCCURS LATER." 

PURSUANT TO SUBDIVISION (B), THE NEW YORK CITY DEPARTMENT OF SOCIAL
SERVICES PROMULGATED PROCEDURE NO. 68-18.  A CASEWORKER WHO HAS DOUBTS
ABOUT THE RECIPIENT'S CONTINUED ELIGIBILITY MUST FIRST DISCUSS THEM
WITH THE RECIPIENT.  IF THE CASEWORKER CONCLUDES THAT THE RECIPIENT IS
NO LONGER ELIGIBLE, HE RECOMMENDS TERMINATION OF AID TO A UNIT
SUPERVISOR.  IF THE LATTER CONCURS, HE SENDS THE RECIPIENT A LETTER
STATING THE REASONS FOR PROPOSING TO TERMINATE AID AND NOTIFYING HIM
THAT WITHIN SEVEN DAYS HE MAY REQUEST THAT A HIGHER OFFICIAL REVIEW THE
RECORD, AND MAY SUPPORT THE REQUEST WITH A WRITTEN STATEMENT PREPARED
PERSONALLY OR WITH THE AID OF AN ATTORNEY OR OTHER PERSON.  IF THE
REVIEWING OFFICIAL AFFIRMS THE DETERMINATION OF INELIGIBILITY, AID IS
STOPPED IMMEDIATELY AND THE RECIPIENT IS INFORMED BY LETTER OF THE
REASONS FOR THE ACTION.  APPELLEES' CHALLENGE TO THIS PROCEDURE
EMPHASIZES THE ABSENCE OF ANY PROVISIONS FOR THE PERSONAL APPEARANCE OF
THE RECIPIENT BEFORE THE REVIEWING OFFICIAL, FOR ORAL PRESENTATION OF
EVIDENCE, AND FOR CONFRONTATION AND CROSS-EXAMINATION OF ADVERSE
WITNESSES.  /4/  HOWEVER, THE LETTER DOES INFORM THE RECIPIENT THAT HE
MAY REQUEST A POST-TERMINATION "FAIR HEARING."  /5/  THIS IS A
PROCEEDING BEFORE AN INDEPENDENT STATE HEARING OFFICER AT WHICH THE
RECIPIENT MAY APPEAR PERSONALLY, OFFER ORAL EVIDENCE, CONFRONT AND
CROSS-EXAMINE THE WITNESS AGAINST HIM, AND HAVE A RECORD MADE OF THE
HEARING.  IF THE RECIPIENT PREVAILS AT THE "FAIR HEARING" HE IS PAID
ALL FUNDS ERRONEOUSLY WITHHELD.  /6/  HEW HANDBOOK, T. IV, SECS. 6200
6500; 18 NYCRR 84.2-84.23.  A RECIPIENT WHOSE AID IS NOT RESTORED BY A
"FAIR HEARING" DECISION MAY HAVE JUDICIAL REVIEW.  N.Y. CIVIL PRACTICE
LAW AND RULES, ART. 78 (1963).  THE RECIPIENT IS SO NOTIFIED, 18 NYCRR
84.16. 

        I 

THE CONSTITUTIONAL ISSUE TO BE DECIDED, THEREFORE, IS THE NARROW ONE
WHETHER THE DUE PROCESS CLAUSE REQUIRES THAT THE RECIPIENT BE AFFORDED
AN EVIDENTIARY HEARING BEFORE THE TERMINATION OF BENEFITS.  /7/  THE
DISTRICT COURT HELD THAT ONLY A PRE-TERMINATION EVIDENTIARY HEARING
WOULD SATISFY THE CONSTITUTIONAL COMMAND, AND REJECTED THE ARGUMENT OF
THE STATE AND CITY OFFICIALS THAT THE COMBINATION OF THE POST
TERMINATION "FAIR HEARING" WITH THE INFORMAL PRE-TERMINATION REVIEW
DISPOSED OF ALL DUE PROCESS CLAIMS.  THE COURT SAID:  "WHILE POST
TERMINATION REVIEW IS RELEVANT, THERE IS ONE OVERPOWERING FACT WHICH
CONTROLS HERE.  BY HYPOTHESIS, A WELFARE RECIPIENT IS DESTITUTE,
WITHOUT FUNDS OR ASSETS.  . . . SUFFICE IT TO SAY THAT TO CUT OFF A
WELFARE RECIPIENT IN THE FACE OF . . . 'BRUTAL NEED' WITHOUT A PRIOR
HEARING OF SOME SORT IS UNCONSCIONABLE, UNLESS OVERWHELMING
CONSIDERATIONS JUSTIFY IT."  KELLY V. WYMAN, 294 F.SUPP.  893, 899, 900
(1968).  THE COURT REJECTED THE ARGUMENT THAT THE NEED TO PROTECT THE
PUBLIC'S TAX REVENUES SUPPLIED THE REQUISITE "OVERWHELMING
CONSIDERATION."  "AGAINST THE JUSTIFIED DESIRE TO PROTECT PUBLIC FUNDS
MUST BE WEIGHED THE INDIVIDUAL'S OVERPOWERING NEED IN THIS UNIQUE
SITUATION NOT TO BE WRONGFULLY DEPRIVED OF ASSISTANCE . . . . WHILE THE
PROBLEM OF ADDITIONAL EXPENSE MUST BE KEPT IN MIND, IT DOES NOT JUSTIFY
DENYING A HEARING MEETING THE ORDINARY STANDARDS OF DUE PROCESS.  UNDER
ALL THE CIRCUMSTANCES, WE HOLD THAT DUE PROCESS REQUIRES AN ADEQUATE
HEARING BEFORE TERMINATION OF WELFARE BENEFITS, AND THE FACT THAT THERE
IS A LATER CONSTITUTIONALLY FAIR PROCEEDING DOES OT ALTER THE RESULT." 
ID., AT 901.  ALTHOUGH STATE OFFICIALS WERE PARTY DEFENDNATS IN THE
ACTION, ONLY THE COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW
YORK APPEALED.  WE NOTED PROBABLE JURISDICTION, 394 U.S. 971 (1969), TO
DECIDE IMPORTANT ISSUES THAT HAVE BEEN THE SUBJECT OF DISAGREEMENT IN
PRINCIPLE BETWEEN THE THREE-JUDGE COURT IN THE PRESENT CASE AND THAT
CONVENED IN WHEELER V. MONTGOMERY, NO. 14, POST, P. 280, ALSO DECIDED
TODAY.  WE AFFIRM. 

APPELLANT DOES NOT CONTEND THAT PROCEDURAL DUE PROCESS IS NOT
APPLICABLE TO THE TERMINATION OF WELFARE BENEFITS.  SUCH BENEFITS ARE A
MATTER OF STATUTORY ENTITLEMENT FOR PERSONS QUALIFIED TO RECEIVE THEM. 
/8/  THEIR TERMINATION INVOLVES STATE ACTION THAT ADJUDICATES IMPORTANT
RIGHTS.  THE CONSTITUTIONAL CHALLENGE CANNOT BE ANSWERED BY AN ARGUMENT
THAT PUBLIC ASSISTANCE BENEFITS ARE "A 'PRIVILEGE' AND NOT A 'RIGHT.'" 
SHAPIRO V. THOMPSON, 394 U.S. 618, 627 N. 6 (1969).  RELEVANT
CONSTITUTIONAL RESTRAINTS APPLY AS MUCH TO THE WITHDRAWAL OF PUBLIC
ASSISTANCE BENEFITS AS TO DISQUALIFICATION FOR UNEMPLOYMENT
COMPENSATION, SHERBERT V. VERNER, 374 U.S. 398 (1963); OR TO DENIAL OF
A TAX EXEMPTION, SPEISER V. RANDALL, 357 U.S. 513 (1958); OR TO
DISCHARGE FROM PUBLIC EMPLOYMENT, SLOCHOWER V. BOARD OF HIGHER
EDUCATION, 350 U.S. 551 (1956).  /9/  THE EXTENT TO WHICH PROCEDURAL
DUE PROCESS MUST BE AFFORDED THE RECIPIENT IS INFLUENCED BY THE EXTENT
TO WHICH HE MAY BE "CONDEMNED TO SUFFER GREVIOUS LOSS," JOINT ANTI
FACIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 168 (1951)
(FRANKFURTER, J., CONCURRING), AND DEPENDS UPON WHETHER THE RECIPIENT'S
INTEREST IN AVOIDING THAT LOSS OUTWEIGHS THE GOVERMENTAL INTEREST IN
SUMMARY ADJUDICATION.  ACCORDINGLY, AS WE SAID IN CAFETERIA &
RESTAURANT WORKERS UNION V. MCELROY, 367 U.S. 886, 895 (1961),
"CONSIDERATION OF WHAT PROCEDURES DUE PROCESS MAY REQUIRE UNDER ANY
GIVEN SET OF CIRCUMSTANCES MUST BEGIN WITH A DETERMINATION OF THE
PRECISE NATURE OF THE GOVERNMENT FUNCTION INVOLVED AS WELL AS OF THE
PRIVATE INTEREST THAT HAS BEEN AFFECTED BY GOVERNMENTAL ACTION."  SEE
ALSO HANNAH V. LARCHE, 363 U.S. 420, 440, 442 (1960). 

IT IS TRUE, OF COURSE, THAT SOME GOVERNMENTAL BENEFITS MAY BE
ADMINISTRATIVELY TERMINATED WITHOUT AFFORDING THE RECIPIENT A PRE
TERMINATION EVIDENTIARY HEARING.  /10/  BUT WE AGREE WITH THE DISTRICT
COURT THAT WHEN WELFARE IS DISCONTINUED, ONLY A PRE-TERMINATION
EVIDENTIARY HEARING PROVIDES THE RECIPIENT WITH PROCEDURAL DUE
PROCESS.  CF. SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337 (1969). 
FOR QUALIFIED RECIPIENTS, WELFARE PROVIDES THE MEANS TO OBTAIN
ESSENTIAL FOOD, CLOTHING, HOUSING, AND MEDICAL CARE.  /11/  CF. NASH V.
FLORIDA INDUSTRIAL COMMISSION, 389 U.S. 235, 239 (1967).  THUS THE
CRUCIAL FACTOR IN THIS CONTEXT-- A FACTOR NOT PRESENT INT HE CASE OF
THE BALCKLISTED GOVERNMENT CONTRACTOR, THE DISCHARGED GOVERNMENT
EMPLOYEE, THE TAXPAYER DENIED A TAX EXEMPTION, OR VIRTUALLY ANYONE ELSE
WHOSE GOVERNMENTAL ENTITLEMENTS ARE ENDED-- IS THAT TERMINATION OF AID
PENDING RESOLUTION OF A CONTROVERSY OVER ELIGIBILITY MAY DEPRIVE AN
ELIGIBLE RECIPIENT OF THE VERY MEANS BY WHICH TO LIVE WHILE HE WAITS. 
SINCE HE LACKS INDEPENDENT RESOURCES, HIS SITUATION BECOMES IMMEDIATELY
DESPERATE.  HIS NEED TO CONCENTRATE UPON FINDING THE MEANS FOR DAILY
SUBSISTENCE, IN TURN, ADVERSELY AFFECTS HIS ABILITY TO SEEK REDRESS
FROM THE WELFARE BUREAUCRACY.  /12/ 

MOREOVER, IMPORTANT GOVERNMENTAL INTERESTS ARE PROMOTED BY AFFORDING
RECIPIENTS A PRE-TERMINATION EVIDENTIARY HEARING.  FROM ITS FOUNDING
THE NATION'S BASIC COMMITMENT HAS BEEN TO FOSTER THE DIGNITY AND
WELLBEING OF ALL PERSONS WITHIN ITS BORDERS.  WE HAVE COME TO RECOGNIZE
THAT FORCES NOT WITHIN THE CONTROL OF THE POOR CONTRIBUTE TO THEIR
POVERTY.  /13/  THIS PERCEPTION, AGAINST THE BACKGROUND OF OUR
TRADITIONS, HAS SIGNIFICANTLY INFLUENCED THE DEVELOPMENT OF THE
CONTEMPORARY PUBLIC ASSISTANCE SYSTEM.  WELFARE, BY MEETING THE BASIC
DEMANDS OF SUBSISTENCE, CAN HELP BRING WITHIN THE REACH OF THE POOR THE
SAME OPPORTUNITIES THAT ARE AVAILABLE TO OTHERS TO PARTICIPATE
MEANINGFULLY IN THE LIFE OF THE COMMUNITY.  AT THE SAME TIME, WELFARE
GUARDS AGAINST THE SOCIETAL MALAISE THAT MAY FLOW FROM A WIDESPREAD
SENSE OF UNJUSTIFIED FRUSTRATION AND INSECURITY.  PUBLIC ASSISTANCE,
THEN, IS NOT MERE CHARITY, BUT A MEANS TO "PROMOTE THE GENERAL WELFARE,
AND SECURE THE BLESSINGS OF LIBERTY TO OURSELVES AND OUR POSTERITY. 
THE SAME GOVERNMENTAL INTERESTS THAT COUNSEL THE PROVISION OF WELFARE,
COUNSEL AS WELL ITS UNINTERRUPTED PROVISION TO THOSE ELIGIBLE TO
RECEIVE IT; PRE-TERMINATION EVIDENTIARY HEARINGS ARE INDISPENSABLE TO
THAT END. 

APPELLANT DOES NOT CHALLENGE THE FORCE OF THESE CONSIDERATIONS BUT
ARGUES THAT THEY ARE OUTWEIGHED BY COUNTERVAILING GOVERNMENTAL
INTERESTS IN CONSERVING FISCAL AND ADMINISTRATIVE RESOURCES.  THESE
INTERESTS, THE ARGUMENT GOES, JUSTIFY THE DELAY OF ANY EVIDENTIARY
HEARING UNTIL AFTER DISCONTINUANCE OF THE GRANTS.  SUMMARY ADJUDICATION
PROTECTS THE PUBLIC FISC BY STOPPING PAYMENTS PROMPTLY UPON DISCOVERY
OF REASON TO BELIEVE THAT A RECIPIENT IS NO LONGER ELIGIBLE.  SINCE
MOST TERMINATIONS ARE ACCEPTED WITHOUT CHALLENGE, SUMMARY ADJUDICATION
ALSO CONSERVES BOTH THE FISC AND ADMINISTRATIVE TIME AND ENERGY BY
REDUCING THE NUMBER OF EVIDENTIARY HEARINGS ACTUALLY HELD. 

WE AGREE WITH THE DISTRICT COURT, HOWEVER, THAT THESE GOVERNMENTAL
INTERESTS ARE NOT OVERRIDING IN THE WELFARE CONTEXT.  THE REQUIREMENT
OF A PRIOR HEARING DOUBTLESS INVOLVES SOME GREATER EXPENSE, AND THE
BENEFITS PAID TO INELIGIBLE RECIPIENTS PENDING DECISION AT THE HEARING
PROBABLY CANNOT BE RECOUPED, SINCE THESE RECIPIENTS ARE LIKELY TO BE
JUDGMENT-PROOF.  BUT THE STATE IS NOT WITHOUT WEAPONS TO MINIMIZE THESE
INCREASED COSTS.  MUCH OF THE DRAIN ON FISCAL AND ADMINISTRATIVE
RESOURCES CAN BE REDUCED BY DEVELOPING PROCEDURES FOR PROMPT PRE
TERMINATION HEARINGS AND BY SKILLFUL USE OF PERSONNEL AND FACILITIES. 
INDEED, THE VERY PROVISION FOR A POST-TERMINATION EVIDENTIARY HEARING
IN NEW YORK'S HOME RELIEF PROGRAM IS ITSELF COGENT EVIDENCE THAT THE
STATE RECOGNIZES THE PRIMACY OF THE PUBLIC INTEREST IN CORRECT
ELIGIBILITY DETERMINATIONS AND THEREFORE IN THE PROVISION OF PROCEDURAL
SAFEGUARDS.  THUS, THE INTEREST OF THE ELIGIBLE RECIPIENT IN
UNINTERRUPTED RECEIPT OF PUBLIC ASSISTANCE, COUPLED WITH THE STATE'S
INTEREST THAT HIS PAYMENTS NOT BE ERRONEOUSLY TERMINATED, CLEARLY
OUTWEIGHS THE STATE'S COMPETING CONCERN TO PREVENT ANY INCREASE IN ITS
FISCAL AND ADMINISTRATIVE BURDENS.  AS THE DISTRICT COURT CORRECTLY
CONCLUDED, "(THE STATES ARE SIMPLY TOO HIGH FOR THE WELFARE RECIPIENT,
AND THE POSSIBILITY FOR HONEST ERROR OR IRRITABLE MISJUDGMENT TOO
GREAT, TO ALLOW TERMINATION OF AID WITHOUT GIVING THE RECIPIENT A
CHANCE, IF HE SO DESIRES, TO BE FULLY INFORMED OF THE CASE AGAINST HIM
SO THAT HE MAY CONTEST ITS BASIS AND PRODUCE EVIDENCE IN REBUTTAL." 
294 F.SUPP.,AT 904-905.              II 

WE ALSO AGREE WITH THE DISTRICT COURT, HOWEVER, THAT THE PRE
TERMINATION HEARING NEED NOT TAKE THE FORM OF A JUDICIAL OR QUASI
JUDICIAL TRIAL.  WE BEAR IN MIND THAT THE STATUTORY "FAIR HEARING" WILL
PROVIDE THE RECIPIENT WITH A FULL ADMINISTRATIVE REVIEW.  /14/
ACCORDINGLY, THE PRE-TERMINATION HEARING HAS ONE FUNCTION ONLY:  TO
PRODUCE AN INITIAL DETERMINATION OF THE VALIDITY OF THE WELFARE
DEPARTMENT'S GROUNDS FOR DISCONTINUANCE OF PAYMENTS IN ORDER TO PROTECT
A RECIPIENT AGAINST AN ERRONEOUS TERMINATION OF HIS BENEFITS.  CF.
SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337, 343 (1969) (HARLAN, J.,
CONCURRING).  THUS, A COMPLETE RECORD AND A COMPREHENSIVE OPINION,
WHICH WOULD SERVE PRIMARILY TO FACILITATE JUDICIAL REVIEW AND TO GUIDE
FUTURE DECISIONS, NEED NOT BE PROVIDED AT THE PRE-TERMINATION STAGE. 
WE RECOGNIZE, TOO, THAT BOTH WELFARE AUTHORITIES AND RECIPIENTS HAVE AN
INTEREST IN RELATIVELY SPEEDY RESOLUTION OF QUESTIONS OF ELIGIBILITY,
THAT THEY ARE USED TO DEALING WITH ONE ANOTHER INFORMALLY, AND THAT
SOME WELFARE DEPARTMENTS HAVE VERY BURDENSOME CASELOADS.  THESE
CONSIDERATIONS JUSTIFY THE LIMITATION OF THE PRE-TERMINATION HEARING TO
MINIMUM PROCEDURAL SAFEGUARDS, ADAPTED TO THE PARTICULAR
CHARACTERISTICS OF WELFARE RECIPIENTS, AND TO THE LIMITED NATURE OF THE
CONTROVERSIES TO BE RESOLVED.  WE WISH TO ADD THAT WE, NO LESS THAT THE
DISSENTERS, RECOGNIZE THE IMPORTANCE OF NOT IMPOSING UPON THE STATES OR
THE FEDERAL GOVERNMENT IN THIS DEVELOPING FIELD OF LAW ANY PROCEDURAL
REQUIREMENTS BEYOND THOSE DEMANDED BY RUDIMENTARY DUE PROCESS. 

"THE FUNDAMENTAL REQUISITE OF DUE PROCESS OF LAW IS THE OPPORTUNITY
TO BE HEARD."  GRANNIS V. ORDEAN, 234 U.S. 385, 394 (1914).  THE
HEARING MUST BE "AT A MEANINGFUL TIME AND IN A MEANINGFUL MANNER." 
ARMSTRONG V. MANZO, 380 U.S. 545, 552 (1965).  IN THE PRESENT CONTEXT
THESE PRINCIPLES REQUIRE THAT A RECIPIENT HAVE TIMELY AND ADEQUATE
NOTICE DETAILING THE REASONS FOR A PROPOSED TERMINATION, AND AN
EFFECTIVE OPPORTUNITY TO DEFEND BY CONFRONTING ANY ADVERSE WITNESSES
AND BY PRESENTING HIS OWN ARGUMENTS AND EVIDENCE ORALLY.  THESE RIGHTS
ARE IMPORTANT IN CASES SUCH AS THOSE BEFORE US, WHERE RECIPIENTS HAVE
CHALLENGED PROPOSED TERMINATIONS AS RESTING ON INCORRECT OR MISLEADING
FACTUAL PREMISES OR ON MISAPPLICATION OF RULES OR POLICIES TO THE FACTS
OF PARTICULAR CASES.  /15/ 

WE ARE NOT PREPARED TO SAY THAT THE SEVEN-DAY NOTICE CURRENTLY
PROVIDED BY NEW YORK CITY IS CONSTITUTIONALLY INSUFFICIENT PER SE,
ALTHOUGH THERE MAY BE CASES WHERE FAIRNESS WOULD REQUIRE THAT A LONGER
TIME BE GIVEN.  NOR DO WE SEE ANY CONSTITUTIONAL DEFICIENCY IN THE
CONTENT OR FORM OF THE NOTICE.  NEW YORK EMPLOYS BOTH A LETTER AND A
PERSONAL CONFERENCE WITH A CASEWORKER TO INFORM A RECIPIENT OF THE
PRECISE QUESTIONS RAISED ABOUT HIS CONTINUED ELIGIBILITY.  EVIDENTLY
THE RECIPIENT IS TOLD THE LEGAL AND FACTUAL BASES FOR THE DEPARTMENT'S
DOUBTS.  THIS COMBINATION IS PROBABLY THE MOST EFFECTIVE METHOD OF
COMMUNICATING WITH RECIPIENTS. 

THE CITY'S PROCEDURES PRESENTLY DO NOT PERMIT RECIPIENTS TO APPEAR
PERSONALLY WITH OR WITHOUT COUNSEL BEFORE THE OFFICIAL WHO FINALLY
DETERMINES CONTINUED ELIGIBILITY.  THUS A RECIPIENT IS NOT PERMITTED TO
PRESENT EVIDENCE TO THAT OFFICIAL ORALLY, OR TO CONFRONT OR CROSS
EXAMINE ADVERSE WITNESSES.  THESE OMISSIONS ARE FATAL TO THE
CONSTITUTIONAL ADEQUACY OF THE PROCEDURES. 

THE OPPORTUNITY TO BE HEARD MUST BE TAILORED TO THE CAPACITIES AND
CIRCUMSTANCES OF THOSE WHO ARE TO BE HEARD.  /16/  IT IS NOT ENOUGH
THAT A WELFARE RECIPIENT MAY PRESENT HIS POSITION TO THE DECISION MAKER
IN WRITING OR SECONDHAND THROUGH HIS CASEWORKER.  WRITTEN SUBMISSIONS
ARE AN UNREALISTIC OPTION FOR MOST RECIPIENTS, WHO LACK THE EDUCATIONAL
ATTAINMENT NECESSARY TO WRITE EFFECTIVELY AND WHO CANNOT OBTAIN
PROFESSIONAL ASSISTANCE.  MOREOVER, WRITTEN SUBMISSIONS DO NOT AFFORD
THE FLEXIBILITY OF ORAL PRESENATIONS; THEY DO NOT PERMIT THE RECIPIENT
TO MOLD HIS ARGUMENT TO THE ISSUES THE DECISION MAKER APPEARS TO REGARD
AS IMPORTANT.  PARTICULARLY WHERE CREDIBILITY AND VERACITY ARE AT
ISSUE, AS THEY MUST BE IN MANY TERMINATION PROCEEDINGS, WRITTEN
SUBMISSIONS ARE A WHOLLY UNSATISFACTORY BASIS FOR DECISION.  THE
SECONDHAND PRESENTATION TO THE DECISIONMAKER BY THE CASEWORKER HAS ITS
OWN DEFICIENCIES; SINCE THE CASEWORKER USUALLY GATHERS THE FACTS UPON
WHICH THE CHARGE OF INELIGIBILITY RESTS, THE PRESENTATION OF THE
RECIPIENT'S SIDE OF THE CONTROVERSY CANNOT SAFELY BE LEFT TO HIM. 
THEREFORE A RECIPIENT MUST BE ALLOWED TO STATE HIS POSITION ORALLY. 
INFORMAL PROCEDURES WILL SUFFICE; IN THIS CONTEXT DUE PROCESS DOES NOT
REQUIRE A PARTICULAR ORDER OF PROOF OR MODE OF OFFERING EVIDENCE.  CF.
HEW HANDBOOK, PT. IV, SEC. 6400(A). 

IN ALMOST EVERY SETTING WHERE IMPORTANT DECISIONS TURN ON QUESTIONS
OF FACT, DUE PROCESS REQUIRES AN OPPORTUNITY TO CONFRONT AND CROSS
EXAMINE ADVERSE WITNESSES.  E.G., ICC V. LOUISVILLE & N.R. CO., 227
U.S. 88, 93-94 (1913); WILLNER V. COMMITTEE ON CHARACTER & FITNESS, 373
U.S. 96, 103-104 (1963).  WHAT WE SAID IN GREENE V. MCELROY, 360 U.S.
474, 496-497 (1959), IS PARTICULARLY PERTINENT HERE: 

     "CERTAIN PRINCIPLES HAVE REMAINED RELATIVELY IMMUTABLE IN OUR

JURISPRUDENCE.  ONE OF THESE IS THAT WHERE GOVERNMENTAL ACTION

  SERIOUSLY INJURES AN INDIVIDUAL, AND THE REASONABLENESS OF THE

  ACTION DEPENDS ON FACT FINDINGS, THE EVIDENCE USED TO PROVE THE

  GOVERNMENT'S CASE MUST BE DISCLOSED TO THE INDIVIDUAL SO THAT HE

  HAS AN OPPORTUNITY TO SHOW THAT IT IS UNTRUE.  WHILE THIS IS

  IMPORTANT WHERE THE EVIDENCE CONSISTS OF THE TESTIMONY OF

  INDIVIDUALS WHOSE MEMORY MIGHT BE FAULTY OR WHO, IN FACT, MIGHT

  BE PERJURERS OR PERSONS MOTIVATED BY MALICE, VINDICTIVENESS,

  INTOLERANCE, PREJUDICE, OR JEALOUSY.  WE HAVE FORMALIZED THESE

  PROTECTIONS IN THE REQUIREMENTS OF CONFRONTATION AND

  CROSS-EXAMINATION.  THEY HAVE ANCIENT ROOTS.  THEY FIND

  EXPRESSION IN THE SIXTH AMENDMENT . . . . THIS COURT HAS BEEN

  ZEALOUS TO PROTECT THESE RIGHTS FROM EROSION.  IT HAS SPOKEN OUT

  NOT ONLY IN CRIMINAL CASES, . . . BUT ALSO ACTIONS WERE UNDER

  SCRUTINY." 

WELFARE RECIPIENTS MUST THEREFORE BE GIVEN AN OPPORTUNITY TO
CONFRONT AND CROSS-EXAMINE THE WITNESSES RELIED ON BY THE DEPARTMENT. 

"THE RIGHT TO BE HEARD WOULD BE, IN MANY CASES, OF LITTLE AVAIL IF
IT DID NOT COMPREHEND THE RIGHT TO BE HEARD BY COUNSEL."  POWELL V.
ALABAMA, 287 U.S. 45, 68-69 (1932).  WE DO NOT SAY THAT COUNSEL MUST BE
PROVIDED AT THE PRE-TERMINATION HEARING, BUT ONLY THAT THE RECIPIENT
MUST BE ALLOWED TO RETAIN AN ATTORNEY IF HE SO DESIRES.  COUNSEL CAN
HELP DELINEATE THE ISSUES, PRESENT THE FACTUAL CONTENTIONS IN AN
ORDERLY MANNER, CONDUCT CROSS-EXAMINATION, AND GENERALLY SAFEGUARD THE
INTERESTS OF THE RECIPIENT.  WE DO NOT ANTICIPATE THAT THIS ASSISTANCE
WILL UNDULY PROLONG OR OTHERWISE ENCUMBER THE HEARING.  EVIDENTLY HEW
HAS REACHED THE SAME CONCLUSION.  SEE 45 CFR 205.10, 34 FED.REG.  1144
(1969); 45 CFR 220.25, 34 FED.REG.  13595 (1969). 

FINALLY, THE DECISIONMAKER'S CONCLUSION AS TO A RECIPIENT'S
ELIGIBILITY MUST REST SOLELY ON THE LEGAL RULES AND EVIDENCE ADDUCED AT
THE HEARING.  OHIO BELL TEL. CO. V. PUC, 301 U.S. 292 (1937); UNITED
STATES V. ABILENE & S.R. CO., 265 U.S. 274, 288-289 (1924).  TO
DEMONSTRATE COMPLIANCE WITH THIS ELEMENTARY REQUIREMENT, THE DECISION
MAKER SHOULD STATE THE REASONS FOR HIS DETERMINATION AND INDICATE THE
EVIDENCE HE RELIED ON, CF. WICHITA R. & LIGHT CO. V. PUC, 260 U.S. 48,
57-59 (1922), THOUGH HIS STATEMENT NEED NOT AMOUNT TO A FULL OPINION OR
EVEN FORMAL FINDINGS OF FACT AND CONCLUSIONS OF LAW.  AND, OF COURSE,
AN IMPARTIAL DECISION MAKER IS ESSENTIAL.  CF. IN RE MURCHISON, 349
U.S. 133 (1955); WONG YANG SUNG V. MCGRATH, 339 U.S. 33, 45-46 (1950). 
WE AGREE WITH THE DISTRICT COURT THAT PRIOR INVOLVEMENT IN SOME ASPECTS
OF A CASE WILL NOT NECESSARILY BAR A WELFARE OFFICIAL FROM ACTING AS A
DECISION MAKER.  HE SHOULD NOT, HOWEVER, HAVE PARTICIPATED IN MAKING
THE DETERMINATION UNDER REVIEW. 

              AFFIRMED. 

/1/  AFDC WAS ESTABLISHED BY THE SOCIAL SECURITY ACT OF 1935, 49
STAT. 627, AS AMENDED, 42 U.S.C. 601-610 (1964 ED. AND SUPP. IV).  IT
IS A CATEGORICAL ASSISTANCE PROGRAM SUPPORTED BY FEDERAL GRANTS-IN-AID
BUT ADMINISTERED BY THE STATES ACCORDING TO REGULATIONS OF THE
SECRETARY OF HEALTH, EDUCATION, AND WELFARE.  SEE N.Y. SOCIAL WELFARE
LAW SECS. 343-362 (1966).  WE CONSIDERED OTHER ASPECTS OF AFDC IN KING
V. SMITH, 392 U.S. 309 (1968), AND IN SHAPIRO V. THOMPSON, 394 U.S. 618
(1969). 

HOME RELIEF IS A GENERAL ASSISTANCE PROGRAM FINANCED AND
ADMINISTERED SOLELY BY NEW YORK STATE AND LOCAL GOVERNMENTS.  N.Y.
SOCIAL WELFARE LAW SECS. 157-165 (1966).  SINCE JULY 1, 1967, SOCIAL
SERVICES LAW SECS. 157-166.  IT ASSISTS ANY PERSON UNABLE TO SUPPORT
HIMSELF OR TO SECURE SUPPORT FROM OTHER SOURCES.  ID., SEC. 158. 

/2/  TWO SUITS WERE BROUGHT AND CONSOLIDATED IN THE DISTRICT COURT. 
THE NAMED PLAINTIFFS WERE 20 IN NUMBER, INCLUDING INTERVENORS. 
FOURTEEN HAD BEEN OR WERE ABOUT TO BE CUT OFF FROM ADFC, AND SIX FROM
HOME RELIEF.  DURING THE COURSE OF THIS LITIGATION MOST, THOUGH NOT
ALL, OF THE PLAINTIFFS EITHER RECEIVED A "FAIR HEARING" (SEE INFRA, AT
259-260) OR WERE RESORTED TO THE ROLLS WITHOUT A HEARING.  HOWEVER,
EVEN IN MANY OF THE CASES WHERE PAYMENTS HAVE BEEN RESUMED, THE
UNDERLYING QUESTIONS OF ELIGIBILITY THAT RESULTED IN THE BRINGING OF
THIS SUIT HAVE NOT BEEN RESOLVED.  FOR EXAMPLE, MRS. ALTAGRACIA GUZMAN
ALLEGED THAT SHE WAS IN DANGER OF LOSING AFDC PAYMENTS FOR FAILURE TO
COOPERATE WITH THE CITY DEPARTMENT OF SOCIAL SERVICES IN SUING HER
ESTRANGED HUSBAND.  SHE CONTENDED THAT THE DEPARTMENTAL POLICY
REQUIRING SUCH COOPERATION WAS INAPPLICABLE TO THE FACTS OF HER CASE. 
THE RECORD SHOWS THAT PAYMENTS TO MRS. GUZMAN HAVE NOT BEEN TERMINATED,
BUT THERE IS NO INDICATION THAT THE BASIC DISPUTE OVER HER DUTY TO
COOPERATE HAS BEEN RESOLVED, OR THAT THE ALLEGED DANGER OF TERMINATION
HAS BEEN REMOVED.  HOME RELIEF PAYMENTS OT JAUN DEJESUS WERE TERMINATED
BECAUSE HE REFUSED TO ACCEPT COUNSELING AND REHABILITATION FOR DRUG
ADDICTION.  MR. DEJESUS MAINTAINS THAT HE DOES NOT USE DRUGS.  HIS
PAYMENTS WERE RESTORED THE DAY AFTER HIS COMPLAINT WAS FILED.  BUT
THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE UNDERLYING FACTUAL
DISPUTE IN HIS CASE HAS BEEN SETTLED. 

/3/  THE ADOPTION IN FEBRUARY 1968 AND THE AMENDMENT IN APRIL OF
REGULATION SEC. 351.26 COINCIDED WITH OR FOLLOWED SEVERAL REVISIONS BY
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE OF ITS REGULATIONS
IMPLEMENTING 42 U.S.C. 602(A)(4), WHICH IS THE PROVISION OF THE SOCIAL
SECURITY ACT THAT REQUIRES A STATE TO AFFORD A "FAIR HEARING" TO ANY
RECIPIENT OF AID UNDER A FEDERALLY ASSISTED PROGRAM BEFORE TERMINATION
OF HIS AID BECOMES FINAL.  THIS REQUIREMENT IS SATISFIED BY A POST
TERMINATION "FAIR HEARING" UNDER REGULATIONS PRESENTLY IN EFFECT.  SEE
HEW HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION (HEREAFTER HEW
HANDBOOK), PT. IV, SECS 6200-6400.  A NEW HEW REGULATION, 34 FED.REG. 
1144 (1969), NOW SCHEDULED TO TAKE EFFECT IN JULY 1970, 34 FED.REG. 
1395 (1969), WOULD REQUIRE CONTINUATION OF AFDC PAYMENTS UNTIL THE
FINAL DECISION AFTER A "FAIR HEARING" AND WOULD GIVE RECIPIENTS A RIGHT
TO APPOINTED COUNSEL AT "FAIR HEARINGS."  45 CFR 205.10, 34 FED.REG. 
1144 (1969); 45 CFR 220.25, 34 FED.REG.  1356 (1969).  FOR THE
SAFEGUARDS SPECIFIED AT SUCH "FAIR HEARINGS" SEE HEW HANDBOOK, PT. IV,
SECS. 6200-6400.  ANOTHER RECENT REGULATION NOW IN EFFECT REQUIRES A
LOCAL AGENCY ADMINISTERING AFDC TO GIVE "ADVANCE NOTICE OF QUESTIONS IT
HAS ABOUT AN INDIVIDUAL'S ELIGIBILITY SO THAT A RECIPIENT HAS AN
OPPORTUNITY TO DISCUSS HIS SITUATION BEFORE RECEIVING FORMAL WRITTEN
NOTICE OF REDUCTION IN PAYMENT OR TERMINATION OF ASSISTANCE."  ID., PT.
IV, SEC. 2300(D)(5).  THIS CASE PRESENTS NO ISSUE OF THE VALIDITY OR
CONSTRUCTION OF THE FEDERAL REGULATIONS.  IT IS ONLY SUBDIVISION (B) OF
SEC. 351.26 OF THE NEW YORK STATE REGULATIONS AND IMPLEMENTING
PROCEDURE 68-18 OF NEW YORK CITY THAT POSE THE CONSTITUTIONAL QUESTION
BEFORE US.  CF. SHAPIRO V. THOMPSON, 394 U.S. 618, 641 (1969).  EVEN
ASSUMING THAT THE CONSTITUTIONAL QUESTION MIGHT BE AVOIDED IN THE
CONTEXT OF AFDC BY CONSTRUCTION OF THE SOCIAL SECURITY ACT OR OF THE
PRESENT FEDERAL REGULATIONS THEREUNDER, OR BY WAITING FOR THE NEW
REGULATIONS TO BECOME EFFECTIVE, THE QUESTION MUST BE FACED AND DECIDED
IN THE CONTEXT OF NEW YORK'S HOME RELIEF PROGRAM, TO WHICH THE
PROCEDURES ALSO APPLY. 

/4/  THESE OMISSIONS CONTRAST WITH THE PROVISIONS OF SUBDIVISION (A)
OF SEC. 351.26, THE VALIDITY OF WHICH IS NOT AT ISSUE IN THIS COURT. 
THAT SUBDIVISION ALSO REQUIRES WRITTEN NOTIFICATION TO THE RECIPIENT AT
LEAST SEVEN DAYS PRIOR TO THE PROPOSED EFFECTIVE DATE OF THE REASONS
FOR THE PROPOSED DISCONTINUANCE OR SUSPENSION.  HOWEVER, THE
NOTIFICATION MUST FURTHER ADVISE THE RECIPIENT THAT IF HE MAKES A
REQUEST THEREFOR HE WILL BE AFFORDED AN OPPORTUNITY TO APPEAR AT A TIME
AND PLACE INDICATED BEFORE THE OFFICIAL IDENTIFIED IN THE NOTICE, WHO
WILL REVIEW HIS CASE WITH HIM AND ALLOW HIM TO PRESENT SUCH WIRTTEN AND
ORAL EVIDENCE AS THE RECIPIENT MAY HAVE TO DEMONSTRATE WHY AID SHOULD
NOT BE DISCONTINUED OR SUSPENDED.  THE DISTRICT COURT ASSUMED THAT
SUBDIVISION (A) WOULD BE CONSTRUED TO AFFORD RIGHTS OF CONFRONTATION
AND CROSS-EXAMINATION AND A DECISION BASED SOLELY ON THE RECORD.  294
F.SUPP.  893, 906-907 (1968). 

/5/  N.Y. SOCIAL WELFARE LAW SEC. 353(2) (1966) PROVIDES FOR A POST
TERMINATION "FAIR HEARING" PURSUANT TO 42 U.S.C. 602(A)(4).  SEE N. 3,
SUPRA.  ALTHOUGH THE DISTRICT COURT NOTED THAT HEW HAD RAISED SOME
OBJECTIONS TO THE NEW YORK "FAIR HEARING" PROCEDURES, 294 F.SUPP.,AT
898 N. 9, THESE OBJECTIONS ARE NOT AT ISSUE IN THIS COURT.  SHORTLY
BEFORE THIS SUIT WAS FILED, NEW YORK STATE ADOPTED A SIMILAR PROVISION
FOR A "FAIR HEARING" IN TERMINATIONS OF HOME RELIEF.  18 NYCRR 84.2
84.23.  IN BOTH AFDC AND HOME RELIEF THE "FAIR HEARING" MUST BE HELD
WITHIN 10 WORKING DAYS OF THE REQUEST, SEC. 84.6, WITH DECISION WITHIN
12 WORKING DAYS THEREAFTER, SEC. 84.15.  IT WAS CONCEDED IN ORAL
ARGUMENT THAT THESE TIME LIMITS ARE NOT IN FACT OBSERVED.     /6/
CURRENT HEW REGULATIONS REQUIRE THE STATES TO MAKE FULL RETROACTIVE
PAYMENTS (WITH FEDERAL MATCHING FUNDS) WHENEVER A "FAIR HEARING"
RESULTS IN A REVERSAL OF TERMINATION OF ASSISTANCE.  HEW HANDBOOK, PT.
IV, SECS. 6200(K), 6300(G), 6500(A); SEE 18 NYCRR 358.8.  UNDER NEW
YORK STATE REGULATIONS RETROACTIVE PAYMENTS CAN ALSO BE MADE, WITH
CERTAIN LIMITATIONS, TO CORRECT AN ERRONEOUS TERMINATION DISCOVERED
BEFORE A "FAIR HEARING" HAS BEEN HELD.  18 NYCRR 351.27.  HEW
REGULATIONS ALSO AUTHORIZE, BUT DO NOT REQUIRE, THE STATES TO CONTINUE
AFDC PAYMENTS WITHOUT LOSS OF FEDERAL MATCHING FUNDS PENDING COMPLETION
OF A "FAIR HEARING."  HEW REGULATIONS ALSO AUTHORIZE, BUT DO NOT
REQUIRE, THE STATES TO CONTINUE AFDC PAYMENTS WITHOUT LOSS OF FEDERAL
MATCHING FUNDS PENDING COMPLETION OF A "FAIR HEARING."  HEW HANDBOOK,
PT. IV, SEC. 6500(B).  THE NEW HEW REGULATIONS PRESENTLY SCHEDULED TO
BECOME EFFECTIVE JULY 1, 1970, WILL SUPERSEDE ALL OF THESE PROVISIONS. 
SEE N. 3, SUPRA. 

/7/  APPELLANT DOES NOT QUESTION THE RECIPIENT'S DUE PROCESS RIGHT
TO EVIDENTIARY REVIEW AFTER TERMINATION.  FOR A GENERAL DISCUSSION OF
THE PROVISION OF AN EVIDENTIARY HEARING PRIOR TO TERMINATION, SEE
COMMENT, THE CONSTITUTIONAL MINIMUM FOR THE TERMINATION OF WELFARE
BENEFITS:  THE NEED FOR AND REQUIREMENTS OF A PRIOR HEARING, 68
MICH.L.REV.  112 (1969). 

/8/  IT MAY BE REALISTIC TODAY TO REGARD WELFARE ENTITLEMENTS AS
MORE LIKE "PROPERTY" THAN A "GRATUITY."  MUCH OF THE EXISTING WEALTH IN
THIS COUNTRY TAKES THE FORM OF RIGHTS THAT DO NOT FALL WITHIN
TRADITIONAL COMMON-LAW CONCEPTS OF PROPERTY.  IT HAS BEEN APTLY NOTED
THAT 

"(SOCIETY TODAY IS BUILT AROUND ENTITLEMENT.  THE AUTOMOBILE DEALER
HAS HIS FRANCHISE, THE DOCTOR AND LAWYER THEIR PROFESSIONAL LICENSES,
THE WORKER HIS UNION MEMBERSHIP, CONTRACT, AND PENSION RIGHTS, THE
EXECUTIVE HIS CONTRACT AND STOCK OPTIONS; ALL ARE DEVICES TO AID
SECURITY AND INDEPENDENCE.  MANY OF THE MOST IMPORTANT OF THESE
ENTITLEMENTS NOW FLOW FROM GOVERNMENT:  SUBSIDES TO FARMERS AND
BUSINESSMEN, ROUTES FOR AIRLINES AND CHANNELS FOR TELEVISION STATIONS;
LONG TERM CONTRACTS FOR DEFENSE, SPACE, AND EDUCATION; SOCIAL SECURITY
PENSIONS FOR INDIVIDUALS.  SUCH SOURCES OF SECURITY, WHETHER PRIVATE OR
PUBLIC, ARE NO LONGER REGARDED AS LUXURIES OR GRATUTIES; TO THE
RECIPIENTS THEY ARE ESSENTIALS, FULLY DESERVED, AND IN NO SENSE A FORM
OF CHARITY.  IT IS ONLY THE POOR WHOSE ENTITLEMENTS, ALTHOUGH
RECOGNIZED BY PUBLIC POLICY, HAVE N OBEEN EFFECTIVELY ENFORCED." 
REICH, INDIVIDUAL RIGHTS AND SOCIAL WELFARE:  THE EMERGING LEGAL
ISSUES, 74 YALE L. J. 1245, 1255 (1965).  SEE ALSO REICH, THE NEW
PROPERTY, 73 YALE L. J. 733 (1964). 

/9/  SEE ALSO GOLDSMITH V. UNITED STATES BOARD OF TAX APPEALS, 270
U.S. 117 (1926) (RIGHT OF A CERTIFIED PUBLIC ACCOUNTANT TO PRACTICE
BEFORE THE BOARD OF TAX APPEALS); HORNSBY V. ALLEN, 326 F.2D 605 (C.A.
5TH CIR. 1964) (RIGHT TO OBTAIN A RETAIL LIQUOR STORE LICENSE); DIXON
V. ALABAMA STATE BOARD OF EDUCATION, 294 F.2D 150 (C.A. 5TH CIR.),
CERT. DENIED, 368 U.S. 930 (1961) (RIGHT TO ATTEND A PUBLIC COLLEGE). 

/10/  ONE COURT OF APPEALS HAS STATED:  "IN A WIDE VARIETY OF
SITUATIONS, IT HAS LONG BEEN RECOGNIZED THAT WHERE HARM TO THE PUBLIC
IS THREATENED, AND THE PRIVATE INTEREST INFRINGED IS REASONABLY DEEMED
TO BE OF LESS IMPORTANCE, AN OFFICIAL BODY CAN TAKE SUMMARY ACTION TO
BE OF LESS IMPORTANCE, AN OFFICIAL BODY CAN TAKE SUMMARY ACTION PENDING
A LATER HEARING."  R. A. HOLMAN & CO. V. SEC, 112 U.S.APP.D.C. 43, 47,
299 F.2D 127, 131, CERT. DENIED, 370 U.S. 911 (1962) (SUSPENSION OF
EXEMPTION FROM STOCK REGISTRATION REQUIREMENT).  SEE ALSO, FOR EXAMPLE,
EWING V. MYTINGER & CASSELBERRY, INC. 339 U.S. 594 (1950) (SEIZURE OF
MISLABELED VITAMIN PRODUCT); NORTH AMERICA COLD STORAGE CO. V. CHICAGO,
211 U.S. 306 (1908) (SEIZURE OF FOOD NOT FIT FOR HUMAN USE); YAKUS V.
UNITED STATES, 321 U.S. 414 (1944) (ADOPTION OF WARTIME PRICE
REGULATIONS); GONZALEZ V. FREEMAN, 118 U.S.APP.D.C. 180, 334 F.2D 570
(1964) (DISQUALIFICATION OF A CONTRACTOR TO DO BUSINESS WITH THE
GOVERNMENT).  IN CAFETERIA & RESTAURANT WORKERS UNION V. MCELROY,
SUPRA, AT 896, SUMMARY DISMISSAL OF A PUBLIC EMPLOYEE WAS UPHELD
BECAUSE "(IN (ITS) PROPRIETARY MILITARY CAPACITY, THE FEDERAL
GOVERNMENT . . . HAS TRADITIONALLY EXERCISED UNFETTERED CONTROL," AND
BECAUSE THE CASE INVOLVED THE GOVERNMENT'S "DISPATCH OF ITS OWN
INTERNAL AFFAIRS."  CF. PERKINS V. LUKENS STEEL CO., 310 U.S. 113
(1940). 

/11/  ADMINISTRATIVE DETERMINATION THAT A PERSON IS INELIGIBLE FOR
WELFARE MAY ALSO RENDER HIM INELIGIBLE FOR PARTICIPATION IN STATE
FINANCED MEDICAL PROGRAMS.  SEE N.Y. SOCIAL WELFARE LAW SEC. 366
(1966). 

/12/  HIS IMPAIRED ADVERSARY POSITION IS PARTICULARLY TELLING IN
LIGHT OF THE WELFARE BUREAUCRACY'S DIFFICULTIES IN REACHING CORRECT
DECISIONS ON ELIGIBILITY.  SEE COMMENT, DUE PROCESS AND THE RIGHT TO A
PRIOR HEARING IN WELFARE CASES, 37 FORD.L.REV.  604, 610-611 (1969). 

/13/  SEE, E.G., REICH, SUPRA, N. 8, 74 YALE L.J.,AT 1255. 

/14/  DUE PROCESS DOES NOT, OF COURSE, REQUIRE TWO HEARINGS.  IF,
FOR EXAMPLE, A STATE SIMPLY WISHES TO CONTINUE BENEFITS UNTIL AFTER A
"FAIR" HEARING THERE WILL BE NO NEED FOR A PRELIMINARY HEARING. 

/15/  THIS CASE PRESENTS NO QUESTION REQUIRING OUR DETERMINATION
WHETHER DUE PROCESS REQUIRES ONLY AN OPPORTUNITY FOR WRITTEN
SUBMISSION, OR AN OPPORTUNITY BOTH FOR WRITTEN SUBMISSION AND ORAL
ARGUMENT, WHERE THERE ARE NO FACTUAL ISSUES IN DISPUTE OR WHERE THE
APPLICATION OF THE RULE OF LAW IS NOT INTERWINED WITH FACTUAL ISSUES. 
SEE FCC V. WJR, 337 U.S. 265, 275-277 (1949). 

/16/  "(THE PROSECUTION OF AN APPEAL DEMANDS A DEGREE OF SECURITY,
AWARENESS, TENACITY, AND ABILITY WHICH FEW DEPENDENT PEOPLE HAVE." 
SEDEMEYER & MOORE, THE AMERICAN WELFARE SYSTEM, 54 CALIF.L.REV.  326,
342 (1966). 

(FOR DISSENTING OPINION OF MR. CHIEF JUSTICE BURGER, SEE POST, P.
282.) 

(FOR DISSENTING OPINION OF MR. JUSTICE STEWART, SEE POST, P. 285). 

MR. JUSTICE BLACK, DISSENTING. 

IN THE LAST HALF CENTURY THE UNITED STATES, ALONG WITH MANY, PERHAPS
MOST, OTHER NATIONS OF THE WORLD, HAS MOVED FAR TOWARD BECOMING A
WELFARE STATE, THAT IS, A NATION THAT FOR ONE REASON OR ANOTHER TAXES
ITS MOST AFFLUENT PEOPLE TO HELP SUPPORT, FEED, CLOTHE, AND SHELTER ITS
LESS FORTUNATE CITIZENS.  THE RESULT IS THAT TODAY MORE THAN NINE
MILLION MEN, WOMEN, AND CHILDREN IN THE UNITED STATES RECEIVE SOME KIND
OF STATE OR FEDERALLY FINANCED PUBLIC ASSISTANCE IN THE FORM OF
ALLOWANCES OR GRATUTIES, GENERALLY PAID THEM PERIODICALLY, USUALLY BY
THE WEEK, MONTH, OR QUARTER.  /1/  SINCE THESE GRATUITIES ARE PAID ON
THE BASIS OF NEED, THE LIST OF RECIPIENTS IS NOT STATIC, AND SOME
PEOPLE GO OFF THE LISTS AND OTHERS ARE ADDED FROM TIME TO TIME.  THESE
EVER-CHANGING LISTS PUT A CONSTANT ADMINISTRATIVE BURDEN ON GOVERNMENT
AND IT CERTAINLY COULD NOT HAVE REASONABLY ANTICIPATED THAT THIS BURDEN
WOULD INCLUDE THE ADDITIONAL PROCEDURAL EXPENSE IMPOSED BY THE COURT
TODAY. 

THE DILEMMA OF THE EVER-INCREASING POOR IN THE MIDST OF CONSTANTLY
GROWING AFFLUENCE PRESSES UPON US AND MUST INEVITABLY BE MET WITHIN THE
FRAMEWORK OF OUR DEMOCRATIC CONSTITUTIONAL GOBERNMENT, IF OUR SYSTEM IS
TO SURVIVE AS SUCH.  IT WAS LARGELY TO ESCAPE JUST SUCH PRESSING
ECONOMIC PROBLEMS AND ATTENDANT GOVERNMENT REPRESSION THAT PEOPLE FROM
EUROPE, ASIA, AND OTHER AREAS SETTLED THIS COUNTRY AND FORMED OUR
NATION.  MANY OF THOSE SETTLERS HAD PERSONALLY SUFFERED FROM
PERSECUTIONS OF VARIOUS KINDS AND WANTED TO GET AWAY FORM GOVERNMENTS
THAT HAD UNRESTRAINED POWERS TO MAKE LIFE MISERABLE FOR THEIR
CITIZENS.  IT WAS FOR THIS REASON, OR SO I BELIEVE, THAT ON REACHING
THESE NEW LANDS THE EARLY SETTLERS UNDERTOOK TO CURB THEIR GOVERNMENTS
BY CONFINING THEIR POWERS WITHIN WRITTEN BOUNDARIES, WHICH EVENTUALLY
BECAME WRITTEN CONSTITUTIONS.  /2/  THEY WROTE THEIR BASIC CHARTERS AS
NEARLY AS MEN'S COLLECTIVE WISDOM COULD DO SO AS TO PROCLAIM TO THEIR
PEOPLE AND THEIR OFFICIALS AN EMPHATIC COMMAND THAT:  "THUS FAR AND NO
FARTHER SHALL YOU GO; AND WHERE WE NEITHER DELEGATE POWERS TO YOU, NOR
PROHIBIT YOUR EXERCISE OF THEM, WE THE PEOPLE ARE LEFT FREE."  /3/ 

REPRESENTATIVES OF THE PEOPLE OF THE THIRTEEN ORIGINAL COLONIES
SPENT LONG, HOT MONTHS IN THE SUMMER OF 1787 IN PHILADELPHIA,
PENNSYLVANIA, CREATING A GOVERNMENT OF LIMITED POWERS.  THEY DIVIDED IT
INTO THREE DEPARTMENTS-- LEGISLATIVE, JUDICIAL, AND EXECUTIVE.  THE
JUDICIAL DEPARTMENT WAS TO HAVE NO PART WHATEVER IN MAKING ANY LAWS. 
IN FACT PROPOSALS LOOKING TO VESTING SOME POWER IN THE JUDICIARY TO
TAKE PART IN THE LEGISLATIVE PROCESS AND VETO LAWS WERE OFFERED,
CONSIDERED, AND REJECTED BY THE CONSTITUTIONAL CONVENTION.  /4/  IN MY
JUDGMENT THERE IS NOT ONE WORD, PHARSE, OR SENTENCE FROM THE BEGINNING
TO THE END OF THE CONSTITUTION FROM WHICH IT CAN BE INFERRED THAT
JUDGES WERE GRANTED ANY SUCH LEGISLATIVE POWER.  TRUE, MARBURY V.
MADISON, 1 CRANCH 137 (1803), HELD, AND PROPERLY, I THINK, THAT COURTS
MUST BE THE FINAL INTERPRETERS OF THE CONSTITUTION, AND I RECOGNIZE
THAT THE HOLDING CAN PROVIDE AN OPPORTUNITY TO SLIDE IMPERCEPTIBLY INTO
CONSTITUTIONAL AMENDMENT AND LAW MAKING.  BUT WHEN FEDERAL JUDGES USE
THIS JUDICIAL POWER FOR LEGISLATIVE PURPOSES, I THINK THEY WANDER OUT
OF THEIR FIELD OF VESTED POWERS AND TRANSGRESS INTO THE AREA
CONSTITUTIONALLY ASSIGNED TO THE CONGRESS AND THE PEOPLE.  THAT IS
PRECISELY WHAT I BELIEVE THE COURT IS DOING IN THIS CASE.  HENCE MY
DISSENT. 

THE MORE THAN A MILLION NAMES ON THE RELIEF ROLLS IN NEW YORK, /5/
AND THE MORE THAN NINE MILLION NAMES ON THE ROLLS OF ALL THE 50 STATES
WERE NOT PUT THERE AT RANDOM.  THE NAMES ARE THERE BECAUSE STATE
WELFARE OFFICIALS BELIEVED THAT THAT THOSE PEOPLE WERE ELIGIBLE FOR
ASSISTANCE.  PROBABLY IN THE OFFICIALS' HASTE TO MAKE OUT THE LISTS
MANY NAMES WERE PUT THERE ERRONEOUSLY IN ORDER TO ALLEVIATE IMMEDIATE
SUFFERING, AND UNDOUBTEDLY SOME PEOPLE ARE DRAWING RELIEF WHO ARE NOT
ENTITLED UNDER THE LAW TO DO SO.  DOUBTLESS SOME DRAW RELIEF CHECKS
FROM TIME TO TIME WHO KNOW THEY ARE NOT ELIGIBLE, EITHER BECAUSE THEY
ARE NOT ACTUALLY IN NEED OR FOR SOME OTHER REASON.  MANY OF THOSE WHO
THUS DRAW UNDERSERVED GRATUITIES ARE WITHOUT SUFFICIENT PROPERTY TO
ENABLE THE GOVERNMENT TO COLLECT BACK FROM THEM ANY MONEY THEY
WRONGFULLY RECEIVE.  BUT THE COURT TODAY HOLDS THAT IT WOULD VIOLATE
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO STOP PAYING THOSE
PEOPLE WEEKLY OR MONTHLY ALLOWANCES UNLESS THE GOVERNMENT FIRST AFFORDS
THEM A FULL "EVIDENTIARY HEARING" EVEN THOUGH WELFARE OFFICIALS ARE
PERSUADED THAT THE RECIPIENTS ARE NOT RIGHTFULLY ENTITLED TO RECEIVE A
PENNY UNDER THE LAW.  IN OTHER WORDS, ALTHOUGH SOME RECIPIENTS MIGHT BE
ON THE LISTS FOR PAYMENT WHOLLY BECAUSE OF DELIBERATE FRAUD ON THEIR
PART, THE COURT HOLDS THAT THE GOVERNMENT IS HELPLESS AND MUST
CONTINUE, UNTIL AFTER AN EVIDENTIARY HERARING, TO PAY MONEY THAT IT
DOES NOT OWE, NEVER HAS OWED, AND NEVER COULD OWE.  I DO NOT BELIEVE
THERE IS ANY PROVISION IN OUR CONSTITUTION THAT SHOULD THUS PARALYZE
THE GOVERNMENT'S EFFORTS TO PROTECT ITSELF AGAINST MAKING PAYMENTS TO
PEOPLE WHO ARE NOT ENTITLED TO THEM. 

PARTICULARLY DO I NOT THINK THAT THE FOURTEENTH AMENDMENT SHOULD BE
GIVEN SUCH AN UNNECESSARILY BROAD CONSTRUCTION.  THAT AMENDMENT CAME
INTO BEING PRIMARILY TO PROTECT NEGROES FROM DISCRIMINATION, AND WHILE
SOME OF ITS LANGUAGE CAN AND DOES PROTECT OTHERS, ALL KNOW THAT THE
CHIEF PURPOSE BEHIND IT WAS TO PROTECT EX-SLAVES.  CF. ADAMSON V.
CALIFORNIA, 332 U.S. 46, 71-72, AND N. 5 (1947) (DISSENTING OPINION). 
THE COURT, HOWEVER, RELIES UPON THE FOURTEENTH AMENDMENT AND IN EFFECT
SAYS TAHT FAILURE OF THE GOVERNMENT TO PAY A PROMISED CHARITABLE
INSTALMENT TO AN INDIVIDUAL DEPRIVES THAT INDIVIDUAL OF HIS OWN
PROPERTY, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  IT SOMEWHAT STRAINS CREDULITY TO SAY THAT THE GOVERNMENT'S
PROMISE OF CHARITY TO AN INDIVIDUAL IS PROPERTY BELONGING TO THAT
INDIVIDUAL WHEN THE GOVERNMENT DENIES THAT THE INDIVIDUAL IS HONESTLY
ENTITLED TO RECEIVE SUCH A PAYMENT. 

I WOULD HAVE LITTLE, IF ANY, OBJECTION TO THE MAJORITY'S DECISION IN
THIS CASE IF IT WERE WRITTEN AS THE REPORT OF THE HOUSE COMMITTEE ON
EDUCATION AND LABOR, BUT AS AN OPINION OSTENSIBLY RESTING ON THE
LANGUAGE OF THE CONSTITUTION I FIND IT WOEFULLY DEFICIENT.  ONCE THE
VERBIAGE IS PARED AWAY IT IS OBVIOUS THAT THIS COURT TODAY ADOPTS THE
VIEWS OF THE DISTRICT COURT "THAT TO CUT OFF A WELFARE RECIPIENT IN THE
FACE . . . 'BRUTAL NEED' WITHOUT A PRIOR HEARING OF SOME SORT IS
UNCONSCIONABLE," AND THEREFORE, SAYS THE COURT, UNCONSTITUTIONAL.  THE
MAJORITY REACHES THIS RESULT BY A PROCESS OF WEIGHING "THE RECIPIENT'S
INTEREST IN AVOIDING" THE TERMINATION OF WELFARE BENEFITS AGAINST "THE
GOVERNMENTAL INTEREST INSUMMARY ADJUDICATION."  ANTE, AT 263.  TODAY'S
BALANCING ACT REQUIRES A "PRE-TERMINATION EVIDENTIARY HEARING," YET
THERE IS NOTHING THAT INDICATES WHAT TOMORROW'S BALANCE WILL BE.
ALTHOUGH THE MAJORITY ATTEMPTS TO BOLSTER ITS DECISION WITH LIMITED
QUOTATIONS FROM PRIOR CASES, IT IS OBVIOUS THAT TODAY'S RESULT DOES NOT
DEPEND ON THE LANGUAGE OF THE CONSTITUTION ITSELF OR THE PRINCIPLES OF
OTHER DECISIONS, BUT SOLELY ON THE COLLECTIVE JUDGMENT OF THE MAJORITY
AS TO WHAT WOULD BE A FAIR AND HUMANE PROCEDURE IN THIS CASE. 

THIS DECISION IS THUS ONLY ANOTHER VARIANT OF THE VIEW OFTEN
EXPRESSED BY SOME MEMBERS OF THIS COURT THAT THE DUE PROCESS CLAUSE
FORBIDS ANY CONDUCT THAT A MAJORITY OF THE COURT BELIEVES "UNFAIR,"
"INDECENT," OR "SHOCKING TO THEIR CONSCIENCES."  SEE, E.G., ROCHIN V.
CALIFORNIA, 342 U.S. 165, 172 (1952).  NEITHER THESE WORDS NOR ANY LIKE
THEM APPEAR ANYWHERE IN THE DUE PROCESS CLAUSE.  IF THEY DID, THEY
WOULD LEAVE THE MAJORITY OF JUSTICES FREE TO HOLD ANY CONDUCT
UNCONSTITUTIONAL THAT THEY SHOULD CONCLUDE ON THEIR OWN TO BE UNFAIR OR
SHOCKING TO THEM.  /6/  HAD THE DRAFTERS OF THE DUE PROCESS CLAUSE
MEANT TO LEAVE JUDGES SUCH AMBULATORY POWER TO DECLARE LAWS
UNCONSTITUTIONAL, THE CHIEF VALUE OF A WRITTEN CONSTITUTION, AS THE
FOUNDERS SAW IT, WOULD HAVE BEEN LOST.  IN FACT, IF THAT VIEW OF DUE
PROCESS IS CORRECT, THE DUE PROCESS CLAUSE COULD EASILY SWALLOW UP ALL
OTHER PARTS OF THE CONSTITUTION.  AND TRULY THE CONSTITUTION WOULD
ALWAYS BE "WHAT THE JUDGES SAY IT IS" AT A GIVEN MOMENT, NOT WHAT THE
FOUNDERS WROTE INTO THE DOCUMENT.  /7/  A WRITTEN CONSTITUTION,
DESIGNED TO GUARANTEE PROTECTION AGAINST GOVERNMENTAL ABUSES, INCLUDING
THOSE OF JUDGES, MUST HAVE WRITTEN STANDARDS THAT MEAN SOMETHING
DEFINITE AND HAVE AN EXPLICIT CONTENT.  I REGRET VERY MUCH TO BE
COMPELLED TO SAY THAT THE COURT TODAY MAKES A DRASTIC AND DANGEROUS
DEPARTURE FROM A CONSTITUTION WRITTEN TO CONTROL AND LIMIT THE
GOVERNMENT AND THE JUDGES AND MOVES TOWARD A CONSTITUTION DESIGNED TO
BE NO MORE AND NO LESS THAN WHAT THE JUDGES OF A PARTICULAR SOCIAL AND
ECONOMIC PHILOSOPHY DECLARE ON THE ONE HAND TO BE FAIR OR ON THE OTHER
HAND TO BE SHOCKING AND UNCONSCIONABLE. 

THE PROCEDURE REQUIRED TODAY AS A MATTER OF CONSTITUTIONAL LAW FINDS
NO PRECEDENT IN OUR LEGAL SYSTEM.  REDUCED TO ITS SIMPLEST TERMS, THE
PROBLEM IN THIS CASE IS SIMILAR TO THAT FREQUENTLY ENCOUNTERED WHEN TWO
PARTIES HAVE AN ONGOING LEGAL RELATIONSHIP THAT REQUIRES ONE PARTY TO
MAKE PERIODIC PAYMENTS TO THE OTHER.  OFTEN THE SITUATION ARISES WHERE
THE PARTY "OWING" THE MONEY STOPS PAYING IT AND JUSTIFIES HIS CONDUCT
BY ARGUING THAT THE RECIPIENT IS NOT LEGALLY ENTITLED TO PAYMENT.  THE
RECIPIENT CAN, OF COURSE, DISAGREE AND GO TO COURT TO COMPEL PAYMENT. 
BUT I KNOW OF NO SITUATION IN OUR LEGAL SYSTEM IN WHICH THE PERSON
ALLEGED TO OWE MONEY TO ANOTHER IS REQUIRED BY LAW TO CONTINUE MAKING
PAYMENTS TO A JUDGMENT-PROOF CLAIMANT WITHOUT THE BENEFIT OF ANY
SECURITY OR BOND TO INSURE THAT THESE PAYMENTS CAN BE RECOVERED IF HE
WINS HIS LEGAL ARGUMENT.  YET TODAY'S DECISION IN NO WAY OBLIGATES THE
WELFARE RECIPIENT TO PAY BACK ANY BENEFITS WRONGFULLY RECEIVED DURING
THE PRE-TERMINATION EVIDENTIARY HEARINGS OR POST ANY BOND, AND IN ALL
"FAIRNESS" IT COULD NOT DO SO.  THESE RECIPIENTS ARE BY DEFINITION TOO
POOR TO POST A BOND OR TO REPAY THE BENEFITS THAT, AS THE MAJORITY
ASSUMES, MUST BE SPENT AS RECEIVED TO INSURE SURVIVAL. 

THE COURT APPARENTLY FEELS THAT THIS DECISION WILL BENEFIT THE POOR
AND NEEDY.  IN MY JUDGMENT THE EVENTUAL RESULT WILL BE JUST THE
OPPOSITE.  WHILE TODAY'S DECISION REQUIRES ONLY AN ADMINISTRATIVE,
EVIDENTIARY HEARING, THE INEVITABLE LOGIC OF THE APPROACH TAKEN WILL
LEAD TO CONSTITUTIONALLY IMPOSED, TIME-CONSUMING DELAYS OF A FULL
ADVERSARY PROCESS OF ADMINISTRATIVE AND JUDICIAL REVIEW.  IN THE NEXT
CASE THE WELFARE RECIPIENTS ARE BOUND TO ARGUE THAT CUTTING OFF
BENEFITS BEFORE JUDICIAL REVIEW OF THE AGENCY'S DECISION IS ALSO A
DENIAL OF DUE PROCESS.  SINCE, BY HYPOTHESIS, TERMINATION OF AID AT
THAT POINT MAY STILL "DEPRIVE AN ELIGIBLE RECIPIENT OF THE VERY MEANS
BY WHICH TO LIVE WHILE HE WAITS," ANTE, AT 264, I WOULD BE SURPRISED IF
THE WEIGHING PROCESS DID NOT COMPEL THE CONCLUSION THAT TERMINATION
WITHOUT FULL JUDICIAL REVIEW WOULD BE UNCONSCIONABLE.  AFTER ALL, AT
EACH STEP, AS THE MAJORITY SEEMS TO FEEL, THE ISSUE IS ONLY ONE OF
WEIGHING THE GOVERNMENT'S POCKETBOOK AGAINST THE ACTUAL SURVIVAL OF THE
RECIPIENT, AND SURELY THAT BALANCE MUST ALWAYS TIP IN FAVOR OF THE
INDIVIDUAL.  SIMILARLY TODAY'S DECISION REQUIRES ONLY THE OPPORTUNITY
TO HAVE THE BENEFIT OF COUNSEL AT THE ADMINISTRATIVE HEARING, BUT IT IS
DIFFICULT TO BELIEVE THAT THE SAME REASONING PROCESS WOULD NOT REQUIRE
THE APPOINTMENT OF COUNSEL, FOR OTHERWISE THE RIGHT TO COUNSEL IS A
MEANINGLESS ONE SINCE THESE PEOPLE ARE TOO POOR TO HIRE THEIR OWN
ADVOCATES.  CF. GIDEON V. WAINWRIGHT, 372 U.S. 335, 344 (1963).  THUS
THE END RESULT OF TODAY'S DECISION MAY WELL BE THAT THE GOVERNMENT,
ONCE IT DECIDES TO GIVE WELFARE BENEFITS, CANNOT REVERSE THAT DECISION
UNTIL THE RECIPIENT HAS HAD THE BENEFITS OF FULL ADMINISTRATIVE AND
JUDICIAL REVIEW, INCLUDING, OF COURSE, THE OPPORTUNITY TO PRESENT HIS
CASE TO THIS COURT.  SINCE THIS PROCESS WILL USUALLY ENTAIL A DELAY OF
SEVERAL YEARS, THE INEVITABLE RESULT OF SUCH A CONSTITUTIONALLY IMPOSED
BURDEN WILL BE THAT THE GOVERNMENT WILL NOT PUT A CLAIMANT ON THE ROLLS
INITIALLY UNTIL IT HAS MADE AN EXHAUSTIVE INVESTIGATION TO DETERMINE
HIS ELIGIBILITY.  WHILE THIS COURT WILL PERHAPS HAVE INSURED THAT NO
NEEDY PERSON WILL BE TAKEN OFF THE ROLLS WITHOUT A FULL "DUE PROCESS"
PROCEEDING, IT WILL ALSO HAVE INSURED THAT MANY WILL NEVER GET ON THE
ROLLS, OR AT LEAST THAT THEY WILL REMAIN DESTITUTE DURING THE LENGHTY
PROCEEDINGS FOLLOWED TO DETERMINE INITIAL ELIGIBILITY. 

FOR THE FOREGOING REASONS I DISSENT FROM THE COURT'S HOLDING.  THE
OPERATION OF A WELFARE STATE IS A NEW EXPERIMENT FOR OUR NATION.  FOR
THIS REASON, AMONG OTHERS, I FEEL THAT NEW EXPERIMENTS IN CARRYING OUT
A WELFARE PROGRAM SHOULD NOT BE FROZEN INTO OUR CONSTITUTIONAL
STRUCTURE.  THEY SHOULD BE LEFT, AS ARE OTHER LEGISLATIVE
DETERMINATIONS, TO THE CONGRESS AND THE LEGISLATURES THAT THE PEOPLE
ELECT TO MAKE OUR LAWS. 

/1/  THIS FIGURE INCLUDES ALL RECIPIENTS OF OLD-AGE ASSISTANCE, AID
TO FAMILIES WITH DEPENDENT CHILDREN, AID TO THE BLIND, AID TO THE
PERMANENTLY AND TOTALLY DISABLED, AND GENERAL ASSISTANCE.  IN THIS CASE
APPELLANTS ARE AFDC AND GENERAL ASSISTANCE RECIPIENTS.  IN NEW YORK
STATE ALONE THERE ARE 951,000 AFDC RECIPIENTS AND 108,000 ON GENERAL
ASSISTANCE.  IN THE NATION AS A WHOLE THE COMPARABLE FIGURES ARE
6,080,000 AND 391,000.  U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT
OF THE UNITED STATES:  1969 (90TH ED.), TABLE 435, P. 297. 

/2/  THE GOAL OF A WRITTEN CONSTITUTION WITH FIXED LIMITS ON
GOVERNMENTAL POWER HAD LONG BEEN DESIRED.  PRIOR TO OUR COLONIAL
CONSTITUTIONS, THE CLOSEST MAN HAD COME TO REALIZING THIS GOAL WAS THE
POLITICAL MOVEMENT OF THE LEVELLERS IN ENGLAND IN THE 1640'S.  J.
FRANK, THE LEVELLERS (1955).  IN 1647 THE LEVELLERS PROPOSED THE
ADOPTION OF AN AGREEMENT OF THE PEOPLE WHICH SET FORTH WRITTEN
LIMITATIONS ON THE ENGLISH GOVERNMENT.  THIS PROPOSAL CONTAINED MANY OF
THE IDEAS WHICH LATER WERE INCORPORATED IN THE CONSTITUTIONS OF THIS
NATION.  ID., AT 135-147. 

/3/  THIS COMMAND IS EXPRESSED IN THE TENTH AMENDMENT: 

"THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION,
NOR PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES
RESPECTIVELY, OR TO THE PEOPLE." 

/4/  IT WAS PROPOSED THAT MEMBERS OF THE JUDICIAL BRANCH WOULD SIT
ON A COUNCIL OF REVISION WHICH WOULD CONSIDER LEGISLATION AND HAVE THE
POWER TO VETO IT.  THIS PROPOSAL WAS REJECTED.  J. ELLIOT, 1 ELLIOT'S
DEBATES 160, 164, 214 (JOURNAL OF THE FEDERAL CONVENTION); 395, 398
(YATES' MINUTES); VOL. 5, PP. 151, 164-166, 344-349 (MADISON'S NOTES)
(LIPPINCOTT ED. 1876).  IT WAS ALSO SUGGESTED THAT THE CHIEF JUSTICE
WOULD SERVE AS A MEMBER OF THE PRESIDENT'S EXECUTIVE COUNCIL, BUT THIS
PROPOSAL WAS SIMILARLY REJECTED.  ID., VOL. 5, PP. 442, 445, 446, 462. 

/5/  SEE N. 1, SUPRA. 

/6/  I AM AWARE THAT SOME FEEL THAT THE PROCESS EMPLOYED IN REACHING
TODAY'S DECISION IS NOT DEPENDENT ON THE INDIVIDUAL VIEWS OF THE
JUSTICES INVOLVED, BUT IS A MERE OBJECTIVE SEARCH FOR THE "COLLECTIVE
CONSCIENCE OF MANKIND," BUT IN MY VIEW THAT DESCRIPTION IS ONLY A
EUPHEMISM FOR AN INDIVIDUAL'S JUDGMENT.  JUDGES ARE AS HUMAN AS ANYONE
AND AS LIKELY AS OTHERS TO SEE THE WORLD THROUGH THEIR OWN EYES AND
FIND THE "COLLECTIVE CONSCIENCE" REMARKABLY SIMILAR TO THEIR OWN.  CF.
GRISWOLD V. CONNECTICUT, 381 U.S. 479, 518-519 (1965) (BLACK, J.,
DISSENTING); SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337, 350-351
(1969) (BLACK, J., DISSENTING). 

/7/  TO REALIZE HOW UNCERTAIN A STANDARD OF "FUNDAMENTAL FAIRNESS"
WOULD BE, ONE HAS ONLY TO REFLECT FOR A MOMENT ON THE POSSIBLE
DISAGREEMENT IF THE "FAIRNESS" OF THE PROCEDURE IN THIS CASE WERE
PROPOUNDED TO THE HEAD OF THE NATIONAL WELFARE RIGHTS ORGANIZATION, THE
PRESIDENT OF THE NATIONAL CHAMBER OF COMMERCE, AND THE CHAIRMAN OF THE
JOHN BIRCH SOCIETY. 

JOHN J. LOFLIN, JR., ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON
THE BRIEFS WERE J. LEE RANKIN AND STANLEY BUSCHSBAUM. 

LEE A. ALBERT ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
WERE ROBERT BORSODY, MARTIN GARBUS, AND DAVID DIAMOND. 

BRIEFS OF AMICI CURIAE WERE FILED BY SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL RUCKELSHAUS, AND ROBERT V. ZENER FOR THE
UNITED STATES, AND BY VICTOR G. ROSENBLUM AND DANIEL WM. FESSLER FOR
THE NATIONAL INSTITUTE FOR EDUCATION IN LAW AND POVERTY. 
..END :
















WHEELER V. MONTGOMERY, 397 U.S. 280 


       WHEELER ET AL. V. MONTGOMERY, DIRECTOR, DEPARTMENT OF SOCIAL

           WELFARE OF CALIFORNIA, ET AL.

   APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

         NORTHERN DISTRICT OF CALIFORNIA

        NO. 14.  ARGUED OCTOBER 13, 1969-- DECIDED MARCH 23, 1970 


IN A CLASS ACTION BROUGHT BY RECIPIENTS OF OLD AGE BENEFITS WHO ARE
SUBJECT TO CALIFORNIA WELFARE TERMINATION PROVISIONS, A THREE-JUDGE
DISTRICT COURT UPHELD THE CALIFORNIA PRE-TERMINATION REVIEW PROCEDURE
IN WELFARE CASES, THOUGH IT DOES NOT AFFORD THE RECIPIENT AN
EVIDENTIARY HEARING AT WHICH HE MAY PERSONALLY APPEAR TO OFFER ORAL
EVIDENCE AND CONFRONT ADVERSE WITNESSES.  HELD:  PROCEDURAL DUE PROCESS
REQUIRES A PRE-TERMINATION EVIDENTIARY HEARING BEFORE WELFARE PAYMENTS
MAY BE DISCONTINUED OR SUSPENDED.  GOLDBERG V. KELLY, ANTE, P. 254. 
PP. 281-282. 

296 F.SUPP.  138, REVERSED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 62, GOLDBERG V. KELLY, ANTE, P. 254. 
IT IS A CLASS ACTION BROUGHT BY ALL RECIPIENTS OF OLD AGE BENEFITS WHO
ARE SUBJECT TO CALIFORNIA WELFARE TERMINATION PROVISIONS.  A THREE
JUDGE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA HELD THAT
THE CALIFORNIA PROCEDURE FOR PRE-TERMINATION REVIEW IN WELFARE CASES
SATISFIES THE REQUIREMENTS OF THE DUE PROCESS CLAUSE, 296 F.SUPP.  138
(1968), AND WE NOTED PROBABLE JURISDICTION, 394 U.S. 970 (1969).  THIS
PROCEDURE REQUIRES NOTICE TO THE RECIPIENT OF THE PROPOSED
DISCONTINUANCE OR SUSPENSION AT LEAST THREE DAYS PRIOR TO ITS EFFECTIVE
DATE, TOGETHER WITH REASONS FOR THE INTENDED ACTION AND A STATEMENT OF
WHAT INFORMATION OR ACTION IS REQUIRED TO RE-ESTABLISH ELIGIBILITY,
ADVICE THAT THE RECIPIENT MAY MEET HIS CASEWORKER BEFORE HIS BENEFITS
ARE TERMINATED "(TO DISCUSS THE ENTIRE MATTER INFORMALLY FOR PURPOSES
OF CLARIFICATION AND, WHERE POSSIBLE, RESOLUTION," AND ASSURANCE THAT
THERE WILL BE "PROMPT INVESTIGATION" OF THE CASE AND RESTORATION OF
PAYMENTS "AS SOON AS THERE IS ELIGIBILITY" TO RECEIVE THEM.  /1/  THE
PROCEDURE DOES NOT, HOWEVER, AFFORD THE RECIPIENT AN EVIDENTIARY
HEARING AT WHICH HE MAY PERSONALLY APPEAR TO OFFER ORAL EVIDENCE AND
CONFRONT AND CORSS-EXAMINE THE WITNESSES AGAINST HIM.  IN GOLDBERG V.
KELLY, SUPRA, DECIDED TODAY, WE HELD THAT PROCEDURAL DUE PROCESS
REQUIRES SUCH AN EVIDENTIARY PRETERMINATION HEARING BEFORE WELFARE
PAYMENTS MAY BE DISCONTINUED OR SUSPENDED.  ACCORDINGLY, THE JUDGMENT
OF THE DISTRICT COURT MUST BE AND IS REVERSED ON THE AUTHORITY OF
GOLDBERG V. KELLY. 

              REVERSED. 

/1/  CALIFORNIA STATE DEPARTMENT OF SOCIAL WELFARE, PUBLIC SOCIAL
SERVICES MANUAL, REG. 44-325 (EFFECTIVE APRIL 1, 1968).  THE PERTINENT
PROVISIONS OF THE REGULATION STATE: 

".43 . . . THE RECIPIENT . . . SHALL BE NOTIFIED, IN WRITING,
IMMEDIATELY UPON THE INITIAL DECISION BEING MADE TO WITHHOLD A WARRANT
BEYOND ITS USUAL DELIVERY DATE . . . AND IN NO CASE LESS THAN THREE . .
. MAIL DELIVERY DAYS PRIOR TO THE USUAL DELIVERY DATE OF THE WARRANT .
. . . THE COUNTY SHALL GIVE SUCH NOTICE AS IT HAS REASON TO BELIEVE
WILL BE EFFECTIVE INCLUDING, IF NECESSARY, A HOME CALL BY APPROPRIATE
PERSONNEL.  . . . EVERY NOTIFICATION SHALL INCLUDE: 

".431 A STATEMENT SETTING FORTH THE PROPOSED ACTION AND THE GROUNDS
THEREFOR, TOGETHER WITH WHAT INFORMATION, IF ANY, IS NEEDED OR ACTION
REQUIRED TO REESTABLISH ELIGIBILITY . . . . 

".432 ASSURANCE THAT PROMPT INVESTIGATION IS BEING MADE; THAT THE
WITHHELD WARRANT WILL BE DELIVERED AS SOON AS THERE IS ELIGIBILITY TO
RECEIVE IT; AND THAT THE EVIDENCE OR OTHER INFORMATION WHICH BROUGHT
ABOUT THE WITHHOLDING ACTION WILL BE FREELY DISCUSSED WITH THE
RECIPIENT . . . IF HE SO DESIRES . . . .

        .          .          .          . 

".434 A STATEMENT THAT THE RECIPIENT . . . MAY HAVE THE OPPORTUNITY
TO MEET WITH HIS CASEWORKER . . . IN THE COUNTY DEPARTMENT, AT A
SPECIFIED TIME, OR DURING A GIVEN TIME PERIOD WHICH SHALL NOT EXCEED
THREE . . . WORKING DAYS, AND THE LAST DAY OF WHICH SHALL BE AT LEAST
ONE . . . DAY PRIOR TO THE USUAL DELIVERY DATE OF THE WARRANT, AND AT A
PLACE SPECIFICALLY DESIGNATED IN ORDER TO ENABLE THE RECIPIENT . . . 

"(A) TO LEARN THE NATURE AND EXTENT OF THE INFORMATION ON WHICH THE
WITHHOLDING ACTION IS BASED; 

"(B) TO PROVIDE ANY EXPLANATION OR INFORMATION, INCLUDING, BUT NOT
LIMITED TO THAT DESCRIBED IN THE NOTIFICATION . . .; 

"(C) TO DISCUSS THE ENTIRE MATTER INFORMALLY FOR PURPOSES OF
CLARIFICATION AND, WHERE POSSIBLE, RESOLUTION." 

MR. JUSTICE BLACK, FOR THE REASONS SET FORTH IN HIS DISSENTING
OPINION IN NO. 62, GOLDBERG V. KELLY, ANTE, P. 271, DISSENTS AND WOULD
AFFIRM THE JUDGMENT BELOW. 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACK JOINS,
DISSENTING.  /0/ 

ALTHOUGH I AGREE IN LARGE PART WITH MR. JUSTICE BLACK'S VIEWS IN NO.
62, GOLDBERG V. KELLY, ANTE, P. 271, THERE ARE ADDITIONAL FACTORS I
WISH TO MENTION IN DISSENT FROM TODAY'S UNWISE AND PRECIPITOUS
CONSTITUTIONAL HOLDINGS. 

THE PROCEDURES FOR REVIEW OF ADMINISTRATIVE ACTION IN THE "WELFARE"
AREA ARE IN A RELATIVELY EARLY STAGE OF DEVELOPMENT; HEW HAS ALREADY
TAKEN THE INITIATIVE BY PROMULGATING REGULATIONS REQUIRING THAT AFDC
PAYMENTS BE CONTINUED UNTIL A FINAL DECISION AFTER A "FAIR HEARING" IS
HELD.  /1/  THE NET EFFECT WOULD BE TO PROVIDE A HEARING PRIOR TO A
TERMINATION OF BENEFITS.  INDEED, THE HEW ADMINISTRATIVE REGULATIONS GO
FAR BEYOND THE RESULT REACHED TODAY SINCE THEY REQUIRE THAT RECIPIENTS
BE GIVEN THE RIGHT TO APPOINTED COUNSEL, /2/  A POSITION EXPRESSLY
REJECTED BY THE MAJORITY.  AS THE MAJORITY NOTES, SEE ANTE, AT 257 N.
3, THESE REGULATIONS ARE SCHEDULED TO TAKE EFFECT IN JULY 1970. 
AGAINST THIS BACKGROUND I AM BAFFLED AS TO WHY WE SHOULD ENGAGE IN
"LEGISLATING" VIA CONSTITUTIONAL FLAT WHEN AN APPARENTLY REASONABLE
RESULT HAS BEEN ACCOMPLISHED ADMINISTRATIVELY. 

THAT HEW HAS ALREADY ADOPTED SUCH REGULATIONS SUGGESTS TO ME THAT WE
OUGHT TO HOLD THE HEAVY HAND OF CONSTITUTIONAL ADJUDICATION AND ALLOW
EVOLUTIONARY PROCESSES AT VARIOUS ADMINISTRATIVE LEVELS TO DEVELOP,
GIVEN THEIR FLEXIBILITY TO MAKE ADJUSTMENTS IN PROCEDURE WITHOUT LONG
DELAYS.  THIS WOULD PERMIT ORDERLY DEVELOPMENT OF PROCEDURAL SOLUTIONS,
AIDED AS THEY WOULD BE BY EXPERT GUIDANCE AVAILABLE WITHIN FEDERAL
AGENCIES WHICH HAVE AN OVERVIEW OF THE ENTIRE PROBLEM IN THE 50
STATES.  I CANNOT ACCEPT-- INDEED I REJECT-- ANY NOTION THAT A
GOVERNMENT WHICH PAYS OUT BILLIONS OF DOLLARS TO NEARLY NINE MILLION
WELFARE RECIPIENTS IS HEARTLESS, INSENSITIVE, OR INDIFFERENT TO THE
LEGITIMATE NEEDS OF THE POOR. 

THE COURT'S ACTION TODAY SEEMS ANOTHER MANIFESTATION OF THE NOW
FAMILIAR CONSTITUTIONALIZING SYNDROME:  ONCE SOME PRESUMED FLAW IS
OBSERVED, THE COURT THEN EAGERLY ACCEPTS THE INVITATION TO FIND A
CONSTITUTIONALLY "ROOTED" REMEDY.  IF NO PROVISOION IS EXPLICIT ON THE
POINT, IT IS THEN SEEN AS "IMPLICIT" OR COMMANDED BY THE VAGUE AND
NEBULOUS CONCEPT OF "FAIRNESS." 

I CAN SHARE THE IMPATIENCE OF ALL WHO SEEK INSTANT SOLUTIONS; THERE
IS A GREAT TEMPTATION IN THIS AREA TO FRAME REMEDIES THAT SEEM FAIR AND
CAN BE MANDATED FORTHWITH AS AGAINST ADMINISTRATIVE OR CONGRESSIONAL
ACTION THAT CALLS FOR CAREFUL AND EXTENDED STUDY.  THAT IS THOUGHT TOO
SLOW.  BUT, HOWEVER CUMBERSOME OR GLACIAL, THIS IS THE PROCEDURE THE
CONSTITUTION CONTEMPLATED. 

I WOULD NOT SUGGEST THAT THE PROCEDURES OF ADMINISTERING THE
NATION'S COMPLEX WELFARE PROGRAMS ARE BEYOND THE REACH OF COURTS, BUT I
WOULD WAIT UNTIL MORE IS KNOWN ABOUT THE PROBLEMS BEFORE FASHIONING
SOLUTIONS IN THE RIGIDITY OF A CONSTITUTIONAL HOLDING. 

BY ALLOWING THE ADMINISTRATORS TO DEAL WITH THESE PROBLEMS WE LEAVE
ROOM FOR ADJUSTMENTS IF, FOR EXAMPLE, IT IS FOUND THAT A PARTICULAR
HEARING PROCESS IS TOO COSTLY.  THE HISTORY OF THE COMPLEXITY OF THE
ADMINISTRATIVE PROCESS FOLLOWED BY JUDICIAL REVIEW AS WE HAVE SEEN IT
FOR THE PAST 30 YEARS SHOULD SUGGEST THE POSSIBILITY THAT NEW LAYERS OF
PROCEDURAL PROTECTION MAY BECOME AN INTOLERABLE DRAIN ON THE VERY FUNDS
EARMARKED FOR FOOD, CLOTHING, AND OTHER LIVING ESSENTIALS.  /3/ 

ASIDE FROM THE ADMINISTRATIVE MORASS THAT TODAY'S DECISION COULD
WELL CREATE, THE COURT SHOULD ALSO BE COGNIZANT OF THE LEGAL PRECEDENT
IT MAY BE SETTING.  THE MAJORITY HOLDING RAISES INTRIGUING
POSSIBILITIES CONCERNING THE RIGHT TO A HEARING AT OTHER STAGES IN THE
WELFARE PROCESS WHICH AFFECT THE TOTAL SUM OF ASSISTANCE, EVEN THOUGH
THE ACTION TAKEN MIGHT FALL SHORT OF COMPLETE TERMINATION.  FOR
EXAMPLE, DOES THE COURT'S HOLDINGS EMBRACE WELFARE REDUCTIONS OR DENIAL
OF INCREASES AS OPPOSED TO TERMINATIONS, OR DECISIONS CONCERNING
INITIAL APPLICATIONS OR REQUESTS FOR SPECIAL ASSISTANCE?  THE COURT
SUPPLIES NO DISTINGUISHABLE CONSIDERATIONS AND LEAVES THESE CRUCIAL
QUESTIONS UNANSWERED. 

/0/  (THIS OPINION APPLIES ALSO TO NO. 62, GOLDBERG V. KELLY, ANTE,
P. 254.) 

/1/  45 CFR 205.10, 34 FED.REG.  1144 (1969). 

/2/  45 CFR 220.25, 34 FED.REG.  1356 (1969).  SEE ALSO HEW
HANDBOOK, PT. IV, SECS. 2300(D)(5), 6200-6400. 

/3/  WE ARE TOLD, FOR EXAMPLE, THAT LOS ANGELES COUNTY ALONE EMPLOYS
12,500 WELFARE WORKERS TO PROCESS GRANTS TO 500,000 PEOPLE UNDER
VARIOUS WELFARE PROGRAMS.  THE RECORD DOES NOT REVEAL HOW MANY MORE
EMPLOYEES WILL BE REQUIRED TO GIVE THIS NEWLY DISCOVERED "DUE PROCESS"
TO EVERY WELFARE RECIPIENT WHOSE PAYMENTS ARE TERMINATED FOR FRAUD OR
OTHER FACTORS OF INELIGIBILITY OR THOSE WHOSE INITIAL APPLICATIONS ARE
DENIED. 

MR. JUSTICE STEWART, DISSENTING.  /1/ 

ALTHOUGH THE QUESTION IS FOR ME A CLOSE ONE, I DO NOT BELIEVE THAT
THE PROCEDURES THAT NEW YORK AND CALIFORNIA NOW FOLLOW IN TERMINATING
WELFARE PAYMENTS ARE VIOLATIVE OF THE UNITED STATES CONSTITUTION.  SEE
CAFETERIA & RESTAURANT WORKERS UNION V. MCELROY, 367 U.S. 886, 894
897. 

/1/  (THIS OPINION APPLIES ALSO TO NO. 62, GOLDBERG V. KELLY, ANTE,
P. 354.) 

PETER E. SITKIN ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE STEVEN J. ANTLER AND CHARLES STEPHEN RALSTON. 

ELIZABETH PALMER, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR APPELLEES.  WITH HER ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, RICHARD L. MAYERS, DEPUTY ATTORNEY GENERAL, THOMAS M.
O'CONNOR, AND RAYMOND D. WILLIAMSON, JR. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS,
AND ROBERT V. ZENER FILED A BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE URGING AFFIRMANCE.  THOMAS L. FIKE FILED A BRIEF FOR THE LEGAL
AID SOCIETY OF ALAMEDA COUNTY AS AMICUS CURIAE. 
..END :

















UNITED STATES V. ESTATE OF DONNELLY, 397 U.S. 286 


       UNITED STATES V. ESTATE OF DONNELLY ET AL.

  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT

        NO. 104.  ARGUED JANUARY 12, 1970-- DECIDED MARCH 23, 1970 


RESPONDENTS CARLSON MADE A BONA FIDE PURCHASE IN 1960 OF REALTY IN
LIVINGSTON COUNTY, MICHIGAN, FROM ONE DONNELLY AGAINST WHOM THE
GOVERNMENT HAD ACQUIRED A TAX LIEN IN 1950.  SECTION 3672 OF THE
INTERNAL REVENUE CODE OF 1939 PROVIDED THAT A FEDERAL TAX LIEN BECAME
VALID AGAINST A SUBSEQUENT PURCHASER IF NOTICE OF THE LIEN HAD BEEN
FILED (1) IN A STATE OFFICE IN WHICH THE FILING OF SUCH NOTICE WAS
"AUTHORIZED" BY STATE LAW OR (2) IN THE FEDERAL DISTRICT COURT FOR THE
DISTRICT WHERE THE PROPERTY WAS LOCATED, IF FILING IN A STATE OFFICE
WAS NOT THUS "AUTHORIZED."  CONCLUDING THAT THE STATE LAW, WHICH
IMPOSED A MORE ONEROUS REQUIREMENT OF CONTENT THAN FEDERAL LAW, DID NOT
"AUTHORIZE" FILING THE FEDERAL NOTICE WITH THE STATE OFFICE WITHIN THE
MEANING OF $3672, THE FEDERAL TAX AUTHORITIES FILED NOTICE OF THE LIEN
ON THE LIVINGSTON COUNTY LAND IN THE APPROPRIATE DISTRICT COURT.  THE
GOVERNMENT BROUGHT THIS ACTION IN 1966 TO FORECLOSE THE TAX LIEN ON
THAT PROPERTY.  THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR THE
CARLSONS AGAINST THE GOVERNMENT'S CONTENTION THAT THE CASE WAS
CONTROLLED BY UNITED STATES V. UNION CENTRAL LIFE INS. CO., 368 U.S.
291 (1961), WHICH HELD THAT THE MICHIGAN STATUTE DID NOT "AUTHORIZE"
THE STATE FILING OF FEDERAL LIEN NOTICES AND THAT FILING IN THE
APPROPRIATE FEDERAL DISTRICT COURT SUFFICIED TO GIVE A LIEN PRIORITY
OVER SUBSEQUENT PURCHASERS.  THE DISTRICT COURT HELD THAT UNION CENTRAL
SHOULD NOT BE APPLIED RETROACTIVELY AGAINST A GOOD-FAITH PURCHASE
ANTEDATING THAT DECISION SINCE AT THE TIME OF THEIR PURCHASE THE
CARLSONS COULD HAVE ASSUMED FROM PREVIOUS FEDERAL COURT DECISIONS THAT
THE MICHIGAN STATUTE APPLIED TO THE FILING OF FEDERAL TAX LIEN
NOTICES.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE GOVERNMENT'S TAX
LIEN WAS PROPERLY FILED IN THE DISTRICT COURT AND WAS THUS ENTITLED TO
PRIORITY.  ANY RELIANCE THAT THE CARLSONS MAY HAVE PLACED ON THE LOWER
COURTS' CONSTRUCTION OF SEC. 3672 WHICH THE GOVERNMENT HAD NEVER
ACCEPTED AND WHICH THIS COURT REJECTED IN UNITED STATES V. UNION
CENTRAL LIFE INS. CO., SUPRA, WOULD NOT, ON THE FACTS OF THIS CASE,
FORECLOSE APPLICABILITY OF THAT DECISION HERE.  CHICOT DRAINAGE
DISTRICT V. BAXTER STATE BANK, 308 U.S. 371, DISTINGUISHED.  PP. 290
295. 

406 F.2D 1065, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

IN 1950, A TAX LIABILITY OF APPROXIMATELY $26,000 WAS ASSESSED
AGAINST THE TAXPAYER DONNELLY, A RESIDENT OF MICHIGAN.  UPON
ASSESSMENT, A STATUTORY LIEN WAS CREATED IN FAVOR OF THE UNITED STATES
"UPON ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR PERSONAL"
BELONGING TO THE TAXPAYER.  INTERNAL REVENUE CODE OF 1939, SEC. 3670. 
UNDER SEC. 3672 OF THE 1939 CODE, SUCH A LIEN COULD BECOME EFFECTIVE
AGAINST SUBSEQUENT PURCHASERS OF DONNELLY'S PROPERTY IN EITHER OF TWO
WAYS:  (1) BY FILING NOTICE OF THE LIEN IN THE STATE LAW; OR (2) IF
FILING IN A STATE OFFICE WAS NOT AUTHORIZED BY THE STATE LAW, BY FILING
NOTICE OF THE LIEN IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
IN WHICH THE PROPERTY WAS LOCATED.  /1/ 

A MICHIGAN STATUTE PURPORTED TO AUTHORIZE THE FILING OF FEDERAL TAX
LIEN NOTICES WITH THE COUNTY REGISTER OF DEEDS.  HOWEVER, THE MICHIGAN
STATUTE EXPRESSLY REQUIRED THAT NOTICES OF FEDERAL TAX LIENS UPON REAL
PROPERTY CONTAIN "A DESCRIPTION OF THE LAND UPON WHICH A LIEN IS
CLAIMED."  /2/  THE STANDARD TAX LIEN NOTICE FORM USED BY THE TREASURY
DEPARTMENT MADE NO PROVISION FOR SUCH A DESCRIPTION, BUT WAS RATHER A
BLANKET NOTICE COVERING ALL PROPERTY OF THE TAXPAYER IN THE COUNTY. 
THE DEPARTMENT HAD TAKEN THE POSITION THAT SEC. 3672 PERMITTED STATE
LAW TO DICTATE THE PLACE FOR FILING THE NOTICE OF LIEN, BUT NOT THE
FORM OR CONTENT OF THE NOTICE.  ACCORDINGLY, THE DEPARTMENT, BELIEVING
THAT STATE LAW DID NOT "AUTHORIZE" FILING OF THE STANDARD FEDERAL
NOTICE WITH THE REGISTER OF DEEDS, FILED ITS NOTICE OF LIEN ON
DONNELLY'S PROPERTY IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF MICHIGAN.  THE EASTERN DISTRICT INCLUDES THE LAND INVOLVED
IN THE CASE, WHICH WAS HELD BY DONNELLY AND HIS WIFE AS TENANTS BY THE
ENTIRETY.  THE QUESTION IS WHETHER THE FILING IN FEDERAL COURT GAVE THE
UNITED STATES PRIORITY AGAINST A SUBSEQUENT GOOD-FAITH PURCHASER OF
DONNELLY'S LAND. 

THE DEPARTMENT DID NOT COLLECT IN FULL ON DONNELLY'S TAX LIABILITY
NOR DID IT FORCLOSE ITS LIEN ON ANY OF HIS PROPERTY.  RATHER, BETWEEN
1950 AND HIS DEATH IN 1963, IT OBTAINED WAIVERS FROM HIM OF THE STATUTE
OF LIMITATIONS ON THE ASSESSED LIABILITY, THE LAST OF WHICH EXTENDED
THE TIME FOR COLLECTION TO DECEMBER 31, 1966.  IN THE MEANTIME,
DONNELLY'S WIFE DIED AND HE BECAME FEE OWNER OF THE LIVINGSTON COUNTY
LAND.  SHORTLY THEREAFTER, IN AUGUST 1960, HE SOLD THE LAND TO
RESPONDENTS MR. AND MRS. CARLSON, WHO ARE THE REAL PARTIES IN INTEREST
IN THIS CASE.  AN ABSTRACT OF TITLE, PREPARED FOR THE CARLSONS BY THE
LIVINGSTON COUNTY ABSTRACT OFFICE, DISCLOSED NO TAX LIENS AFFECTING
REAL PROPERTY OWNED BY DONNELLY; THE SAME ABSTRACT, HOWEVER, DISCLAIMED
ANY EXAMINATION OF COURT RECORDS, STATE OR FEDERAL.  THE UNITED STATES
CONCEDES THAT THE CARLSONS HAD NO ACTUAL NOTICE OF THE LIEN ON
DONNELLY'S LAND. 

AFTER THE CARLSONS PURCHASED THE LAND, THIS COURT DECIDED IN UNITED
STATES V. UNION CENTRAL LIFE INS. CO., 368 U.S. 291 (1961), THAT THE
DEPARTMENT HAD BEEN RIGHT IN MAINTAINING THAT IT DID NOT HAVE TO
CONFORM ITS LIEN NOTICES TO THE MICHIGAN REQUIREMENT THAT SUCH NOTICES
MUST CONTAIN A DESCRIPTION OF THE LAND UPON WHICH THE LIEN IS CLAIMED. 
THUS, THIS COURT HELD, THE STATE LAW DID NOT "AUTHORIZE" STATE FILING
OF FEDERAL LIEN NOTICES, AND THE FILING OF A NOTICE IN THE APPROPRIATE
FEDERAL DISTRICT COURT WAS SUFFICIENT TO GIVE THE LIEN PRIORITY AGAINST
SUBSEQUENT PURCHASERS. 

IN 1966, JUST BEFORE THE LAST STATUTORY WAIVER EXECUTED BY DONNELLY
EXPIRED, THE UNITED STATES BROUGHT SUIT IN FEDERAL COURT TO FORECLOSE
ITS TAX LIEN ON THE LIVINGSTON COUNTY PROPERTY, NOW OWNED BY THE
CARLSONS.  THE DISTRICT COURT HELD THAT UNION CENTRAL, SUPRA, WAS
DISTINGUISHABLE, AND IN ANY EVENT SHOULD NOT BE APPLIED RETROACTIVELY
AGAINST A PERSON MAKING A GOOD-FAITH PURCHASE BEFORE ITS DATE OF
DECISION, AND GRANTED SUMMARY JUDGMENT FOR THE CARLSONS.  295 F.SUPP. 
557 (D.C.E.D. MICH. 1967).  THE COURT OF APPEALS AFFIRMED ON THE BASIS
OF THE OPINION OF THE DISTRICT COURT.  406 F.2D 1065 (C.A. 6TH CIR.
1969).  WE GRANTED CERTIORARI, 396 U.S. 814 (1969), TO CONSIDER THE
APPARENT CONFLICT WITH OUR DECISION IN UNION CENTRAL, SUPRA, AND WE
REVERSE. 

THE DISTRICT COURT DISTINGUISHED UNION CENTRAL ON THE GROUND THAT
"AN ATTEMPT HAD BEEN MADE IN (THAT CASE) TO FILE NOTICE THAT THE
REGISTER OF DEEDS IN 1954, WHICH HAD BEEN REFUSED BY THE REGISTER OF
DEEDS PURSUANT TO A MICHIGAN ATTORNEY GENERAL OPINION RENDERED IN 1953,
WHICH RULED THAT FEDERAL TAX LIEN NOTICES NOT CONTAINING A DESCRIPTION
OF THE PROPERTY ARE NOT ENTITLED TO BE RECORDED.  IN THE INSTANT CASE,
THERE HAD BEEN NO ATTEMPT TO FILE WITH THE REGISTER OF DEEDS."  295
F.SUPP.,AT 559. 

THE ATTEMPTED DISTINCTION IS UNSATISFACTORY FOR TWO REASONS.  FIRST,
NOTHING IN THIS COURT'S OPINION IN UNION CENTRAL OR IN THE RECORD OF
THAT CASE INDICATES THAT ANY ATTEMPT WAS MADE TO FILE THE NOTICE OF
LIEN WITH THE REGISTER OF DEEDS.  SECOND, WHETHER OR NOT SUCH AN
ATTEMPT WAS MADE, STATE LAW BARRED THE LOCAL OFFICE FROM ACCEPTING THE
FEDERAL LIEN NOTICE, WHICH LACKED THE DESCRIPTION OF THE LAND
EXPLICITLY REQUIRED BY THE STATE STATUTE.  THE PRESENCE OR ABSENCE OF
THE LEGALLY FUTILE ACT OF TENDERING THE NONCOMPLYING LIEN NOTICE TO THE
REGISTER OF DEEDS COULD NOT BE A FACTOR DETERMINATIVE OF THE PRIORITY
TO BE GRANTED THE FEDERAL LIEN.  /3/ 

FURTHER, THE DISTRICT COURT HELD THAT WHEN THE CARLSONS PURCHASED
DONNELLY'S LAND IN 1960, THEY WERE ENTITLED TO RELY ON THE LAW AS IT
APPEARED AT THAT TIME.  AS THE COURT SAW IT, THE PREVAILING
INTERPRETATION OF THE FEDERAL STATUTE IN MICHIGAN, STATED IN YOUNGBLOOD
V. UNITED STATES, 141 F.2D 912 (C.A. 6TH CIR. 1944), REQUIRED THE
TREASURY DEPARTMENT TO FILE A COMPLYING NOTICE OF LIEN WITH THE
REGISTER OF DEEDS IN ORDER TO GAIN PRIORITY AGAINST SUBSEQUENT
PURCHASERS.  CONCEDING THAT THIS COURT REJECTED THE YOUNGBLOOD
INTERPRETATION IN ITS UNION CENTRAL DECISION IN 1961, THE DISTRICT
COURT NEVERTHELESS CONCLUDED THAT UNION CENTRAL SHOULD NOT BE APPLIED
RETROACTIVELY TO GIVE THE 1950 FEDERAL LIEN PRIORITY OVER THE CARLSONS'
1960 GOOD-FAITH PURCHASE OF THE SAME LAND, AND THUS TO UPSET THE
CARLSONS' ALLEGEDLY JUSTIFIABLE EXPECTATION OF UNCLOUDED TITLE. 

IN ITS RETROACTIVITY DETERMINATION, THE DISTRICT COURT RELIED
LARGELY ON THIS COURT'S DECISION IN CHICOT COUNTY DRAINAGE DISTRICT V.
BASTER STATE BANK, 308 U.S. 371 (1940).  THE PETITIONER IN THAT CASE
HAD TAKEN ADVANTAGE OF A FEDERAL STATUTE THAT PERMITTED READJUSTMENT OF
MUNICIPAL DEBT, AMOUNTING TO A REDUCTION OF THAT DEBT, UPON A FINDING
BY A DISTRICT COURT THAT THE READJUSTMENT PLAN WAS FAIR AND EQUITABLE
AND UPON APPROVAL OF THE PLAN BY HOLDERS OF TWO-THIRDS OF THE
OUTSTANDING INDEBTEDNESS.  THE RESPONDENTS, HOLDERS OF BONDS ISSUED BY
THE PETITIONER, HAD BEEN PARTIES TO THAT ACTION, HAD RAISED NO
CONSTITUTIONAL CHALLENGE TO THE STATUTE, AND HAD NOT APPEALED THE FINAL
DECREE OF THE DISTRICT COURT APPROVING THE PLAN.  SUBSEQUENTLY, IN AN
UNRELATED PROCEEDING, THE STATUTE WAS DECLARED UNCONSTITUTIONAL. 
ASHTON V. CAMERON COUNTY DISTRICT, 298 U.S. 513 (1936).  THE
RESPONDENTS THEN BROUGHT SUIT ON THE ORIGINAL BONDS, WHICH HAD BEEN
CANCELED BY THE ORIGINAL DECREE, CLAIMING THAT A DECREE OBTAINED UNDER
AN UNCONSTITUTIONAL STATUTE COULD NOT SUPPORT A PLEA OF RES JUDICATA. 
THIS COURT HELD THAT RES JUDICATA BARRED THE NEW ACTION, STRESSING THE
FACT THAT THE RESPONDENTS HAD NOT RAISED THE CONSTITUTIONAL CLAIM IN
THE ORIGINAL ACTION.  THE COURT NOTED GENERALLY THAT THE ACTUAL
EXISTENCE OF A STATUTE, PRIOR TO DETERMINATION OF ITS
UNCONSTITUTIONALITY 

"IS AN OPERATIVE FACT AND MAY HAVE CONSEQUENCES WHICH CANNOT JUSTLY
BE IGNORED.  THE PAST CANNOT ALWAYS BE ERASED BY A NEW JUDICIAL
DECLARATION.  . .  QUESTIONS OF RIGHTS CLAIMED TO HAVE BECOME VESTED,
OF STATUS, OF PRIOR DETERMINATIONS DEEMED TO HAVE FINALITY AND ACTED
UPON ACCORDINGLY, OF PUBLIC POLICY IN THE LIGHT OF THE NATURE BOTH OF
THE STATUTE AND OF ITS PREVIOUS APPLICATION, DEMAND EXAMINATION."  308
U.S.,AT 374. 

THE DISTRICT COURT HERE FOUND THAT THIS COURT'S DECISION IN UNION
CENTRAL AMOUNTED TO AN INVALIDATION OF THE MICHIGAN STATUTE PROVIDING
FOR LOCAL FILING OF FEDERAL TAX LIEN NOTICES, AND THAT THE CARLSONS HAD
JUSTIFIABLY RELIED UPON THE STATE STATUTE, PRIOR TO ITS INVALIDATION,
IN PURCHASING DONNELLY'S PROPERTY WITHOUT FIRST SEARCHING THE RECORDS
OF THE FEDERAL COURT.  QUOTING THE ABOVE LANGUAGE FROM CHICOT COUNTY
THE COURT HELD THAT THE CARLSONS' RELIANCE ON THE SUBSEQUENTLY
INVALIDATED STATUTE WAS SUFFICIENT TO GIVE THEM PRIORITY OVER THE
EARLIER FILED TAX LIEN. 

IN OUR VIEW, CHICOT COUNTY DOES NOT SUPPORT FAILURE TO APPLY UNION
CENTRAL HERE.  IN THE FIRST PLACE, THE UNION CENTRAL DECISION DID NOT
INVALIDATE ANY STATUTE, STATE OR FEDERAL.  IT MERELY CONSTRUED SEC.
3672, IN ACCORDANCE WITH THE CLEAR LANGUAGE OF THE STATUTE, TO
AUTHORIZE THE FILING OF TAX LIEN NOTICES IN FEDERAL COURT WHERE THE
STATE LAW FAILED TO PROVIDE FOR LOCAL FILING.  IT DETERMINED, AS THE
COURTS AND OTHER AUTHORITIES WHO HAD CONSIDERED THE QUESTION HAD ALL
AGREED, THAT MICHIGAN LAW DID NOT AUTHORIZE THE FILING OF THE STANDARD
FEDERAL LIEN NOTICE, WHICH LACKED THE DESCRIPTION OF THE LAND REQUIRED
BY THE MICHIGAN FILING STATUTE.  FINALLY IT HELD, IN ACCORDANCE WITH
THE WILL OF CONGRESS AS EXPRESSED IN THE 1942 AMENDMENT TO SEC. 3672
AND THE ACCOMPANYING LEGISLATIVE HISTORY, THAT STATE LAW IMPOSING MORE
ONEROUS REQUIREMENTS OF CONTENT ON LIEN NOTICES THAN FEDERAL LAW DID
NOT "AUTHORIZE" STATE FILING WITHIN THE MEANING OF THE FEDERAL
STATUTE. 

THUS, THE CARLSONS DID NOT RELY ON ANY STATUTE SUBSEQUENTLY DECLARED
UNCONSTITUTIONAL BY THIS COURT.  THE MOST THAT CAN BE SAID IS THAT THEY
MAY HAVE FAILED TO SEARCH FOR NOTICES OF TAX LIEN IN THE FEDERAL COURT
ON THE BASIS OF A CONSTRUCTION OF SEC. 3672 GIVEN BY THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT IN YOUNGBLOOD V. UNITED STATES, SUPRA.
HOWEVER, THE YOUNGBLOOD CONSTRUCTION, WHICH THE GOVERNMENT NEVER
ACCEPTED AND WHICH IT COULD NOT SEEK TO HAVE REVIEWED IN THIS COURT
BECAUSE THE JUDGMENT IN THAT CASE RESTED ON INDEPENDENT GROUNDS, /4/
CANNOT BE SUFFICIENT TO DEPRIVE THE GOVERNMENT OF THE FRUITS OF
FOLLOWING WHAT UNDER THE STATUTE WAS THE PROPER FILING PROCEDURE. 

FURTHER, IN CHICOT COUNTY THE PETITIONER DID NOT MERELY RELY ON A
FEDERAL STATUTE LATER DECLARED UNCONSTITUTIONAL, BUT ON A FINAL
JUDGMENT RENDERED IN HIS FAVOR IN A PROCEEDING IN WHICH THE RESPONDENT
DID NOT EVEN RAISE THE CONSTITUTIONAL ISSUE.  THE ANALOGOUS SITUATION
WOULD BE PRESENTED HERE ONLY IF THE CARLSONS HAD, BEFORE THE DECISION
IN UNION CENTRAL, OBTAINED A DECREE OF QUIET TITLE TO THEIR PROPERTY IN
A PROCEEDING TO WHICH THE UNITED STATES WAS A PARTY AND IN WHICH THE
UNITED STATES HAD NOT RAISED THE ISSUE OF THE PRIORITY OF ITS LIEN
UNDER SEC. 3672.  IN SHORT, THIS CASE LACKS THE ELEMENT OF RES JUDICATA
- RELIANCE BY A PARTY ON A FINAL JUDGMENT RENDERED IN HIS FAVOR-- WHICH
WAS THE DECISIVE FACTOR IN CHICOT COUNTY. 

ACTS OF CONGRESS ARE GENERALLY TO BE APPLIED UNIFORMLY THROUGHOUT
THE COUNTRY FROM THE DATE OF THEIR EFFECTIVENESS ONWARD.  GENERALLY THE
UNITED STATES, LIKE OTHER PARTIES, IS ENTITLED TO ADHERE TO WHAT IT
BELIEVES TO BE THE CORRECT INTERPRETATION OF A STATUTE, AND TO REAP THE
BENEFITS OF THAT ADHERENCE IF IT PROVES TO BE CORRECT, EXCEPT WHERE
BOUND TO THE CONTRARY BY A FINAL JUDGMENT IN A PARTICULAR CASE. 
DEVIANT RULINGS BY CIRCUIT COURTS OF APPEALS, PARTICULARLY IN APPARENT
DICTUM, CANNOT GENERALLY PROVIDE THE "JUSTIFIED RELIANCE" NECESSARY TO
WARRANT WITHHOLDING RETROACTIVE APPLICATION OF A DECISION CONSTRUING A
STATUTE AS CONGRESS INTENDED IT.  IN RARE CASES, DECISIONS CONSTRUING
FEDERAL STATUTES MIGHT BE DENIED FULL RETROACTIVE EFFECT, AS FOR
INSTANCE WHERE THIS COURT OVERRULES ITS OWN CONSTRUCTION OF A STATUTE,
CF. SIMPSON V. UNION OIL CO., 377 U.S. 13, 25 (1964(, BUT THIS IS NOT
SUCH A CASE. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS /5/  NOT INCONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  THE INTERNAL REVENUE CODE OF 1939 PROVIDED: 

"SEC. 3670.  PROPERTY SUBJECT TO LIEN. 

"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT (INCLUDING ANY INTEREST, PENALTY,
ADDITIONAL AMOUNT, OR ADDITION TO SUCH TAX, TOGETHER WITH ANY COSTS
THAT MAY ACCRUE IN ADDITION THERETO) SHALL BE A LIEN IN FAVOR OF THE
UNITED STATES UPON ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR
PERSONAL, BELONGING TO SUCH PERSON."  26 U.S.C. 3670 (1940 ED.). 

"SEC. 3672.  VALIDITY AGAINST MORTAGEES, PLEDGEES, PURCHASERS, AND
JUDGMENT CREDITORS. 

"(A) INVALIDITY OF LIEN WITHOUT NOTICE.-- SUCH LIEN SHALL NOT BE
VALID AS AGAINST ANY MORTGAGEE, PLEDGEE, PURCHASER, OR JUDGMENT
CREDITOR UNTIL NOTICE THEREOF HAS BEEN FILED BY THE COLLECTOR-- 

"(1) UNDER STATE OR TERRITORIAL LAWS.-- IN THE OFFICE IN WHICH THE
FILING OF SUCH NOTICE IS AUTHORIZED BY THE LAW OF THE STATE OR
TERRITORY IN WHICH THE PROPERTY SUBJECT TO THE LIEN IS SITUATED,
WHENEVER THE STATE OR TERRITORY HAS BY LAW AUTHORIZED THE FILING OF
SUCH NOTICE IN AN OFFICE WITHIN THE STATE OR TERRITORY; OR     "(2)
WITH CLERK OF DISTRICT COURT.-- IN THE OFFICE OF THE CLERK OF THE
UNITED STATES DISTRICT COURT FOR THE JUDICIAL DISTRICT IN WHICH THE
PROPERTY SUBJECT TO THE LIEN IS SITUATED, WHENEVER THE STATE OR
TERRITORY HAS NOT BY LAW AUTHORIZED THE FILING OF SUCH NOTICE IN AN
OFFICE WITHIN THE STATE OR TERRITORY . . . . "  26 U.S.C. 3672 (1946
ED.). 

/2/  MICHIGAN PUBLIC ACTS, 1923, NO. 104, AS AMENDED BY MICHIGAN
PUBLIC ACTS, 1925, NO. 13, REPEALED BY MICHIGAN PUBLIC ACTS, 1956, NO.
107, PROVIDED IN PERTINENT PART:     "SEC. 1.  THAT WHENEVER THE
COLLECTOR OF INTERNAL REVENUE FOR ANY DISTRICT IN THE UNITED STATES, OR
ANY TAX COLLECTING OFFICERS OF THE UNITED STATES HAVING CHARGE OF THE
COLLECTION OF ANY TAX PAYABLE TO THE UNITED STATES, SHALL DESIRE TO
ACQUIRE A LIEN IN FAVOR OF THE UNITED STATES FOR ANY TAX PAYABLE TO THE
UNITED STATES AGAINST ANY PROPERTY REAL OR PERSONAL, WITHIN THE STATE
OF MICHIGAN PURSUANT TO SECTION THREE THOUSAND ONE HUNDRED EIGHTY-SIX
OF THE REVISED STATUTES OF THE UNITED STATES, HE IS HEREBY AUTHORIZED
TO FILE A NOTICE OF LIEN, SETTING FORTH THE NAME AND THE RESIDENCE OR
BUSINESS ADDRESS OF SUCH TAXPAYER, THE NATURE AND THE AMOUNT OF SUCH
ASSESSMENT, AND A DESCRIPTION OF THE LAND UPON WHICH A LIEN IS CLAIMED,
IN THE OFFICE OF THE REGISTER OF DEEDS IN AND FOR THE COUNTY OR
COUNTRIES IN MICHIGAN IN WHICH SUCH PROPERTY SUBJECT TO SUCH LIEN IS
SITUATED; AND SUCH REGISTER OF DEEDS SHALL, UPON RECEIVING A FILING FEE
OF FIFTY CENTS FOR SUCH NOTICE, FILE AND INDEX THE SAME . . . . " 

/3/  NOR IS IT SIGNIFICANT THAT THE LIEN NOTICE HERE WAS FILED IN
1950, BEFORE THE MICHIGAN ATTORNEY GENERAL'S OPINION REFERRED TO BY THE
DISTRICT COURT (OPINION OF THE ATTORNEY GENERAL OF MICHIGAN, NO. 1709,
SEPTEMBER 10, 1953), WHEREAS THE FILING IN UNION CENTRAL CAME IN 1954,
AFTER THAT OPINION WAS RENDERED.  THE ATTORNEY GENERAL'S OPINION MERELY
DECLARED WHAT WAS ALREADY THE LAW OF MICHIGAN. 

/4/  IN YOUNGBLOOD, THE UNITED STATES SOUGHT AN ORDER IN THE NATURE
OF A WRIT OF MANDAMUS TO COMPEL A COUNTY REGISTER OF DEEDS IN MICHIGAN
TO ACCEPT AND FILE A STANDARD FEDERAL LIEN NOTICE, WHICH LACKED THE
DESCRIPTION OF THE ENCUMBERED LAND REQUIRED BY THE STATE STATUTE.  THE
COURT OF APPEALS HELD THAT THE ORDER SHOULD NOT ISSUE, FIRST, BECAUSE
UNITED STATES DISTRICT COURTS LACK JURISDICTION TO ISSUE ORIGINAL WRITS
OF MANDAMUS OR ORDERS IN THE NATURE OF MANDAMUS; AND SECOND, BECAUSE
THE LAW OF MICHIGAN CLEARLY PROVIDED IN TERMS THAT IN ORDER TO BE FILED
WITH THE REGISTER OF DEEDS, A FEDERAL TAX LIEN NOTICE HAD TO CONTAIN A
DESCRIPTION OF THE LAND.  THE COURT WENT ON, IN APPARENT DICTUM, TO
CONFIRM ITS EARLIER HOLDING IN UNITED STATES V. MANIACI, 116 F.2D 935
(1940), AFF'G 36 F.SUPP.  293 (D.C.W.D. MICH. 1939), THAT SEC. 3672
REQUIRED THE UNITED STATES TO FILE IN THE LOCAL OFFICE LIEN NOTICES
CONFORMING TO THE STATE LAW REQUIREMENTS AS TO CONTENT.  IN DELIVERING
THIS APPARENT DICTUM, THE COURT OF APPEALS IGNORED THE CLEAR
LEGISLATIVE HISTORY, SUMMARIZED IN THIS COURT'S UNION CENTRAL DECISION,
368 U.S.,AT 295-296, WHICH SHOWED THAT IN ENACTING THE 1942 AMENDMENT
TO SEC. 3672, CONGRESS HAD MEANT TO DISAPPROVE THE MANIACI HOLDING. 

/5/  THE CARLSONS HAVE RAISED ADDITIONAL DEFENSES TO THE FORECLOSURE
SUIT BROUGHT BY THE UNITED STATES, BUT AS THESE DEFENSES WERE NOT
CONSIDERED BY THE DISTRICT COURT OR THE COURT OF APPEALS, WE DO NOT
RULE ON THEM HERE. 

MR. JUSTICE HARLAN, CONCURRING. 

I FULLY AGREE THAT THE GOVERNMENT IS ENTITLED TO PREVAIL IN THIS
CASE, BUT I WOULD REST THAT CONCLUSION ON A BROADER GROUND THAN THE
COURT'S OPINION MIGHT BE TAKEN TO EVINCE.  MORE ESPECIALLY, I FEAR THAT
CERTAIN DISTINCTIONS SUGGESTED BY THE COURT'S OPINION-- E.G., BETWEEN
CLEAR AND AMBIGUOUS STATUTES, DECISIONS CONSTRUING STATUTES FOR THE
FIRST TIME, DECISIONS OVERRULING PRIOR CONSTRUCTIONS OF STATUTES-- MAY
POINT IN THE DIRECTION OF A RETROACTIVITY QUAGMIRE IN CIVIL LITIGATION
NOT UNLIKE THAT IN WHICH THE COURT HAS BECOME ENSNARED IN THE CRIMINAL
FIELD.  SEE MY DISSENTING OPINION IN DESIST V. UNITED STATES, 394 U.S.
244, 256 (1969). 

THE IMPULSE TO MAKE A NEW DECISIONAL RULE NONRETROACTIVE RESTS, IN
CIVIL CASES AT LEAST, UPON THE SAME CONSIDERATIONS THAT LIE AT THE CORE
OF STARE CECISIS, NAMELY TO AVOID JOLTING THE EXPECTATIONS OF PARIES TO
A TRANSACTION.  YET ONCE THE DECISION TO ABANDON PRECEDENT IS MADE, I
SEE NO JUSTIFICATION FOR APPLYING PRINCIPLES DETERMINED TO BE WRONG, BE
THEY CONSTITUTIONAL OR OTHERWISE, TO LITIGANTS WHO ARE IN OR MAY STILL
COME TO COURT.  THE CRITICAL FACTOR IN DETERMINING WHEN A NEW
DECISIONAL RULE SHOULD BE APPLIED TO A TRANSACTION CONSUMMATED PRIOR TO
THE DECISION'S ANNOUNCEMENT IS, IN MY VIEW, THE POINT AT WHICH THE
TRANSACTION HAS ACQUIRED SUCH A DEGREE OF FINALITY THAT THE RIGHTS OF
THE PARTIES SHOULD BE CONSIDERED FROZEN.  JUST AS IN THE CRIMINAL FIELD
THE CRUCIAL MOMENT IS, FOR MOST CASES, THE TIME WHEN A CONVICTION HAS
BECOME FINAL, SEE MY DESIST DISSENT, SUPRA, SO IN THE CIVIL AREA THAT
MOMENT SHOULD BE WHEN THE TRANSACTION IS BEYOND CHALLENGE EITHER
BECAUSE THE STATUTE OF LIMITATIONS HAS RUN OR THE RIGHTS OF THE PARTIES
HAVE BEEN FIXED BY LITIGATION AND HAVE BECOME RES JUDICATA.  ANY
UNCERTAINTY ENGENDERED BY THIS APPROACH SHOULD, I THINK, BE DEEMED PART
OF THE RISKS OF LIFE. 

THESE CONSIDERATIONS, I BELIEVE, UNDERLIE THE COURT'S HOLDINGS IN
CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER STATE BANK, 308 U.S. 371
(1940), WHERE THE COURT REFUSED TO UPSET A JUDGMENT BASED ON A
SUBSEQUENT CHANGE IN THE LAW, AND CIPRIANO V. CITY OF HOUMA, 395 U.S.
701 (1969), WHERE WE HELD THAT MUNICIPAL BONDS, AUTHORIZED BY INVALID
REFERENDA, WOULD NOT BE SUBJECT TO CHALLENGE "WHERE, UNDER STATE LAW,
THE TIME FOR CHALLENGING THE ELECTION RESULT HAS . . . EXPIRED."  395
U.S.,AT 706. 

TO THE EXTENT THAT EQUITABLE CONSIDERATIONS, FOR EXAMPLE,
"RELIANCE," ARE RELEVANT, I WOULD TAKE THIS INTO ACCOUNT IN THE
DETERMINATION OF WHAT RELIEF IS APPROPRIATE IN ANY GIVEN CASE.  THERE
ARE, OF COURSE, CIRCUMSTANCES WHEN A CHANGE IN THE LAW WILL JEOPARDIZE
AN EDIFICE WHICH WAS REASONABLY CONSTRUCTED ON THE FOUNDATION OF
PREVAILING LEGAL DOCTRINE.  THUS, IT MAY BE THAT THE LAW OF REMEDIES
WOULD PERMIT RESCISSION, FOR EXAMPLE, BUT NOT AN AWARD OF DAMAGES TO A
PARTY WHO FINDS HIMSELF ABLE TO AVOID A ONCE-VALID CONTRACT UNDER NEW
NOTIONS OF PUBLIC POLICY.  CF. SIMPSON V. UNION OIL CO., 377 U.S. 13,
25 (1964).  ANOTHER INSTANCE, THOUGH APT TO ARISE INFREQUENTLY IN
FEDERAL COURT, WOULD BE WHERE CERTAIN REAL PROPERTY TRANSACTIONS FAIL
TO ANTICIPATE CHANGES IN PRINCIPLES GOVERNING LAND USAGE, FOR EXAMPLE,
THE ENFORCEABILITY OF CERTAIN KINDS OF EASEMENTS OR COVENANTS.  IN SUCH
INSTANCES IT MAY BE APPROPRIATE TO WITHHOLD AN EQUITABLE REMEDY AND
CONFINE AN AWARD OF DAMAGES TO A LIMITED PERIOD, OR THE LIKE.  /1/  THE
ESSENTIAL POINT IS THAT WHILE THERE IS FLEXIBILITY IN THE LAW OF
REMEDIES, THIS DOES NOT AFFECT THE UNDERLYING SUBSTANTIVE PRINCIPLE
THAT SHORT OF A BAR OF RES JUDICATA OR STATUTE OF LIMITATIONS, COURTS
SHOULD APPLY THE PREVAILING DECISIONAL RULE TO THE CASES BEFORE THEM. 

ON THESE PREMISES I JOIN THE COURT'S OPINION. 

/1/  I WOULD NOT, OF COURSE, HOLD THIS VIEW OF RETROACTIVITY BINDING
ON STATE COURTS AND A FEDERAL COURT WOULD, IN FACT, BE OGLIGATED TO
ABIDE BY THE APPLICABLE STATE RULE SHOULD A RETROACTIVITY QUESTION
ARISE IN A DIVERSITY CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART CONCUR, DISSENTING. 

RESPONDENTS ARE BONA FIDE PURCHASERS OF REAL PROPERTY LOCATED IN
LIVINGSTON COUNTY, MICHIGAN.  THEIR PURCHASE WAS MADE IN AUGUST 1960
FROM ONE DONNELLY, AGAINST WHOM THE UNITED STATES HAD ACQUIRED A TAX
LIEN IN 1950.  BY SEC. 3672 OF THE INTERNAL REVENUE CODE OF 1939 THAT
LIEN IS NOT VALID AGAINST A PURCHASER UNTIL NOTICE THEREOF IS FILED IN
THE OFFICE "AUTHORIZED" BY STATE LAW.  WHERE STATE LAW "AUTHORIZEE" NO
SUCH OFFICE, NOTICE OF LIEN WAS TO BE FILED IN THE OFFICE OF THE UNITED
STATES DISTRICT COURT FOR THE JUDICIAL DISTRICT IN WHICH THE LAND IS
LOCATED.  IBID.  MICHIGAN LAW AUTHORIZED NOTICE OF A FEDERAL TAX LIEN
CONTAINING "A DESCRIPTION OF THE LAND" TO BE FILED WITH THE REGISTER OF
DEEDS IN THE COUNTY WHERE THE LAND WAS LOCATED.  /1/ 

THE UNITED STATES REFUSED TO BE BOUND BY THE REQUIREMENT OF MICHIGAN
LAW REGARDING A "DESCRIPTION OF THE LAND" AND FILED NOTICE OF LIEN IN
THE DISTRICT COURT. 

HENCE A TITLE SEARCH IN THE ACCUSTOMED WAY REVEALED NO NOTICE OF
LIEN CLOUDING DONNELLY'S TITLE.  HENCE RESPONDENTS PURCHASED THE LAND
INNOCENTLY AND IN GOOD FAITH.  THEREAFTER, ON MARCH 20, 1961, THE
UNITED STATES FILED ITS NOTICE OF LIEN WITH THE REGISTER OF DEEDS OF
LIVINGSTON COUNTY, AS REQUIRED BY MICHIGAN LAW.  /2/ 

ON DECEMBER 18, 1961, OVER A YEAR AFTER RESPONDENTS' PURCHASE, THIS
COURT HELD IN UNITED STATES V. UNION CENTRAL LIFE INS. CO., 368 U.S.
291, THAT "MICHIGAN LAW AUTHORIZING FILING ONLY IF A DESCRIPTION OF THE
PROPERTY WAS GIVEN" RAN COUNTER TO THE INTENT OF SEC. 3672, AND
CONSEQUENTLY NO REAL PROPERTY FILING REQUIREMENT COULD BE CONSIDERED
"AUTHORIZED" BY MICHIGAN LAW.  ID., AT 296.  THEREFORE, THE COURT HELD,
A NOTICE OF LIEN WAS PROPERLY FILED IN THE DISTRICT COURT. 

I DISSENT FROM A RETROACTIVE APPLICATION OF THAT HOLDING SO AS TO
INJURE BONA FIDE PURCHASERS WHO HAD RELIED ON THE PRIOR LAW TO MAKE
THEIR INVESTMENTS.  THE MICHIGAN ACT HAD AT THE TIME OF THE PURCHASE
BEEN APPROVED BOTH BY THE DISTRICT COURT IN UNITED STATES V. MANIACI,
36 F.SUPP.  293, AND BY THE COURT OF APPEALS FOR THE SIXTH CIRCUIT IN
YOUNGBLOOD V. UNITED STATES, 141 F.2D 912. 

IT SEEMS MANIFESTLY UNJUST TO DEPRIVE RESPONDENTS OF THEIR PROPERTY
FOR BENEFIT OF A LAWLESS TAX COLLECTOR WHO KNOWINGLY CONCEALED HIS
SECRET LIEN UNTIL AFTER THE PURCHASE WAS MADE.  /3/ 

IT IS TRUE THAT LATER, IN UNION CENTRAL, WE RULED THAT SEC. 3672 DID
NOT REQUIRE GOVERNMENT TO FILE PURSUANT TO MICHIGAN LAW.  YET THIS NEW
RULING ON FEDERAL PREEMPTION SHOULD NOT, IN MY VIEW, BE APPLIED TO UNDO
EVERYTHING DONE BY THOSE RELYING ON THE FORMER CONSTRUCTION, AS UPHELD
IN YOUNGBLOOD. 

I WOULD HOLD THAT THE TEACHING OF CHICOT COUNTY DRAINAGE DISTRICT V.
BAXTER STATE BANK, 308 U.S. 371, 374, AS TO STATUTES RULED
UNCONSTITUTIONAL, SHOULD BE APPLIED TO THE PRESENT SITUATION: 

"THE ACTUAL EXISTENCE OF A STATUTE, PRIOR TO SUCH A DETERMINATION,
IS AN OPERATIVE FACT AND MAY HAVE CONSEQUENCES WHICH CANNOT JUSTLY BE
IGNORED.  THE PAST CANNOT ALWAYS BE ERASED BY A NEW JUDICIAL
DECLARATION.  THE EFFECT OF THE SUBSEQUENT RULING AS TO INVALIDITY MAY
HAVE TO BE CONSIDERED IN VARIOUS ASPECTS,-- WITH RESPECT TO PARTICULAR
RELATIONS, INDIVIDUAL AND CORPORATE, AND PARTICULAR CONDUCT, PRIVATE
AND OFFICIAL.  QUESTIONS OF RIGHTS CLAIMED TO HAVE BECOME VESTED, OF
STATUS, OF PRIOR DETERMINATIONS DEEMED TO HAVE FINALITY AND ACTED UPON
ACCORDINGLY OF PUBLIC POLICY IN THE LIGHT OF THE NATURE BOTH OF THE
STATUTE AND OF ITS PREVIOUS APPLICATION, DEMAND EXAMINATION." 

THE MAJORITY OF THE COURT IN THE PRESENT CASE NARROWLY CONFINES THAT
STATEMENT TO THE PARTICULAR FACTS INVOLVED IN CHICOT COUNTY.  THE
PRINCIPLE THERE INVOLVED, HOWEVER, ROOTED DEEPLY IN CONSIDERATIONS OF
FAIRNESS, CLEARLY APPLIES TO THE PRESENT CASE.  I WOULD HOLD THAT BONA
FIDE PURCHASERS, WHOSE PURCHASES ANTEDATE OUR UNION CENTRAL DECISION
AND WHO RELIED ON THE LAW AS IT HAD BEEN PREVIOUSLY CONSTRUED, ARE
PROTECTED IN THEIR INVESTMENTS.  I DISSENT FROM THE COURT'S HOLDING TO
THE CONTRARY. 

/1/  MICHIGAN PUBLIC ACTS, 1923, NO. 104, AS AMENDED, MICHIGAN
PUBLIC ACTS, 1925, NO. 13. 

/2/  PREVIOUSLY, ON NOVEMBER 28, 1950, THE UNITED STATES HAD FILED
NOTICE OF ITS LIEN WITH THE REGISTER OF DEEDS OF WAYNE COUNTY. 

/3/  THE MICHIGAN STATUTE REQUIRING NOTICES OF LIENS TO CONTAIN A
DESCRIPTION OF REAL PROPERTY UPON WHICH A LIEN WAS CLAIMED WAS REPEALED
IN APRIL 1956 BY ACT NO. 107, MICHIGAN PUBLIC ACTS, 1956.  THE UNITED
STATES, HOWEVER, DID NOT THEREAFTER PROMPTLY FILE ITS NOTICE OF LIEN IN
THE STATE OFFICE AS IT WAS NOW AUTHORIZED TO DO UNDER MICHIGAN LAW. 
NOR DID IT STAND ON ITS PREVIOUS FILING IN THE DISTRICT COURT. 
INSTEAD, IT WAITED UNTIL MARCH 20, 1961, ON WHICH DATE IT FILED A
NOTICE OF THE LIEN WITH THE REGISTER OF DEEDS OF LIVINGSTON COUNTY. 

MATTHEW J. ZINN ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WALTERS, JOSEPH J. CONNOLLY, AND CROMBIE J. D. GARRETT. 

DANIEL N. PEVOS ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

..END :



















UNITED STATES V. DAVIS, 397 U.S. 301 


       UNITED STATES V. DAVIS ET UX.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

        NO. 282.  ARGUED JANUARY 12, 1970-- DECIDED MARCH 23, 1970 


TAXPAYER ORGANIZED A CORPORATION WITH ONE BRADLEY WHO RECEIVED 500
SHARES OF COMMON STOCK (LATER SOLD TO TAXPAYER AND DIVIDED BETWEEN TWO
OF HIS CHILDREN), TAXPAYER AND HIS WIFE EACH RECEIVING 250 SHARES.  TO
INCREASE THE COMPANY'S WORKING CAPITAL AND QUALIFY FOR AN RFC LOAN,
TAXPAYER BOUGHT 1,000 SHARES OF PERFERRED STOCK, AT A PAR VALUE OF $25
PER SHARE, WHICH THE COMPANY (IN ACCORDANCE WITH THE ORIGINAL
UNDERSTANDING) REDEEMED WHEN THE LOAN WAS PAID.  TAXPAYER TREATED THE
TRANSACTION FOR INCOME TAX PURPOSES AS A SALE OF PREFERRED STOCK,
RESULTING IN NO GAIN TO HIM SINCE THE STOCK'S BASIS WAS $25,000.  THE
COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THE DISTRIBUTION OF
THAT SUM WAS ESSENTIALLY EQUIVALENT TO A DIVIDEND AND REPORTABLE AS
ORDINARY INCOME UNDER SECS. 301 AND 316 OF THE INTERNAL REVENUE CODE OF
1954.  THAT DETERMINATION WAS PREMISED ON THE COMMISSIONER'S FINDING
THAT, BY REASON OF THE RULES OF ATTRIBUTION IN SEC. 318(A) OF THE CODE
(UNDER WHICH A TAXPAYER HERE MUST BE DEEMED TO OWNER OF ALL THE
COMPANY'S STOCK IMMEDIATELY BEFORE AND AFTER THE REDEMPTION.  THE
TAXPAYER PAID THE RESULTING DEFICIENCY AND BROUGHT THIS SUIT FOR A
REFUND.  THE DISTRICT COURT RULED IN THE TAXPAYER'S FAVOR.  THE COURT
OF APPEALS AFFIRMED, HOLDING THAT THE $25,000 RECEIVED BY THE TAXPAYER
WAS THE FINAL STEP IN A COURSE OF ACTION WITH A LEGITIMATE BUSINESS
PURPOSE AND THUS "NOT ESSENTIALLY EQUIVALENT TO A DIVIDEND" WITHIN THE
MEANING OF SEC. 302(B)(1) OF THE CODE, WHICH QUALIFIED THE DISTRIBUTION
AS A "PAYMENT IN EXCHANGE FOR THE STOCK" AND ENTITLED IT TO CAPITAL
GAINS RATHER THAN ORDINARY INCOME TREATMENT UNDER SEC. 302(A). 
TAXPAYER CONTENDS THAT THE ATTRIBUTION RULES DO NOT APPLY FOR THE
PURPOSE OF SEC. 302(B)(1); THAT HE SHOULD BE CONSIDERED TO OWN ONLY 25
PERCENT OF THE CORPORATION'S COMMON STOCK; AND THAT THE DISTRIBUTION
WOULD QUALIFY UNDER SEC. 302(B)(1) SINCE IT WAS NOT PROPORTIONATE TO
HIS STOCK INTEREST, THE FUNDAMENTAL TEST OF DIVIDEND EQUIVALENCY. 
HELD: 

1.  THE ATTRIBUTION RULES OF SEC. 318(A) APPLY TO ALL OF SEC. 302,
AND FOR THE PURPOSE OF DECIDING WHETHER THE DISTRIBTUION HERE IS "NOT
ESSENTIALLY EQUIVALENT TO A DIVIDEND" UNDER SEC. 302(B)(1), TAXPAYER
MUST BE DEEMED THE OWNER OF ALL 1,000 SHARES OF THE COMPANY'S COMMON
STOCK.  PP. 304-307. 

2.  REGARDLESS OF BUSINESS PURPOSE, A REDEMPTION IS ALWAYS
"ESSENTIALLY EQUIVALENT TO A DIVIDEND" WITHIN THE MEANING OF SEC.
302(B)(1) IF IT DOES NOT CHANGE THE SHAREHOLDER'S PROPORTIONATE
INTEREST IN THE CORPORATION.  SINCE TAXPAYER HERE (AFTER APPLICATION OF
THE ATTRIBUTION RULES) WAS THE CORPORATION'S SOLE SHAREHOLDER BOTH
BEFORE AND AFTER THE REDEMPTION HE DID NOT QUALIFY FOR CAPITAL GAINS
TREATMENT UNDER THE TEST.  PP. 307-313. 

408 F.2D 1139, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

IN 1945, TAXPAYER /1/  AND E. B. BRADLEY ORGANIZED A CORPORATION. 
IN EXCHANGE FOR PROPERTY TRANSFERRED TO THE NEW COMPANY, BRADLEY
RECEIVED 500 SHARES OF COMMON STOCK, AND TAXPAYER AND HIS WIFE
SIMILARLY EACH RECEIVED 250 SUCH SHARES.  SHORTLY THEREAFTER, TAXPAYER
MADE AN ADDITIONAL CONTRIBUTION TO THE CORPORATION, PURCHASING 1,000
SHARES OF PREFERRED STOCK AT A PAR VALUE OF $25 PER SHARE. 

THE PURPOSE OF THIS LATTER TRANSACTION WAS TO INCREASE THE COMPANY'S
WORKING CAPITAL AND THEREBY TO QUALIFY FOR A LOAN PREVIOUSLY NEGOTIATED
THROUGH THE RECONSTRUCTION FINANCE CORPORATION.  IT WAS UNDERSTOOD THAT
THE CORPORATION WOULD REDEEM THE PREFERRED STOCK WHEN THE RFC LOAN HAD
BEEN REPAID.  ALTHOUGH IN THE INTERIM TAXPAYER BOUGHT BRADLEY'S 500
SHARES AND DIVIDED THEM BETWEEN HIS SON AND DAUGHTER, THE TOTAL
CAPITALIZATION OF THE COMPANY REMAINED THE SAME UNTIL 1963.  THAT YEAR,
AFTER THE LOAN WAS FULLY REPAID AND IN ACCORDANCE WITH THE ORIGINAL
UNDERSTANDING, THE COMPANY REDEEMED TAXPAYER'S PREFERRED STOCK. 

IN HIS 1963 PERSONAL INCOME TAX RETURN TAXPAYER DID NOT REPORT THE
$25,000 RECEIVED BY HIM UPON THE REDEMPTION OF HIS PREFERRED STOCK AS
INCOME.  RATHER, TAXPAYER CONSIDERED THE REDEMPTION AS A SALE OF HIS
PREFERRED STOCK TO THE COMPANY-- A CAPITAL GAINS TRANSACTION UNDER SEC.
302 OF THE INTERNAL REVENUE CODE OF 1954 RESULTING IN NO TAX SINCE
TAXPAYER'S BASIS IN THE STOCK EQUALED THE AMOUNT HE RECEIVED FOR IT.
THE COMMISSIONER OF INTERNAL REVENUE, HOWEVER, DID NOT APPROVE THIS TAX
TREATMENT.  ACCORDING TO THE COMMISSIONER, THE REDEMPTION OF TAXPAYER'S
STOCK WAS ESSENTIALLY EQUIVALENT TO A DIVIDEND AND WAS THUS TAXABLE AS
ORDINARY INCOME UNDER SECS. 301 AND 316 OF THE CODE.  TAXPAYER PAID THE
RESULTING DEFICIENCY AND BROUGHT THIS SUIT FOR A REFUND.  THE DISTRICT
COURT RULED IN HIS FAVOR, 274 F.SUPP.  466 (D.C.M.D. TENN. 1967), AND
ON APPEAL THE COURT OF APPEALS AFFIRMED.  408 F.2D 1139 (C.A. 6TH CIR.
1969). 

THE COURT OF APPEALS HELD THAT THE $25,000 RECEIVED BY TAXPAYER WAS
"NOT ESSENTIALLY EQUIVALENT TO A DIVIDEND" WITHIN THE MEANING OF THAT
PHRASE IN SEC. 302(B)(1) OF THE CODE BECAUSE THE REDEMPTION WAS THE
FINAL STEP IN A COURSE OF ACTION THAT HAD A LEGITIMATE BUSINESS (AS
OPPOSED TO A TAX AVOIDANCE) PURPOSE.  THAT HOLDING REPRESENTS ONLY ONE
OF A VARIETY OF TREATMENT ACCORDED SIMILAR TRANSACTIONS UNDER SEC.
302(B)(1) IN THE CIRCUIT COURTS OF APPEALS.  /2/  WE GRANTED
CERTIORARI, 396 U.S. 815 (1969), IN ORDER TO RESOLVE THIS RECURRING TAX
QUESTION INVOLVING STOCK REDEMPTIONS BY CLOSELY HELD CORPORATIONS.  WE
REVERSE. 

     I 

THE INTERNAL REVENUE CODE OF 1954 PROVIDES GENERALLY IN SECS. 301
AND 316 FOR THE TAX TREATMENT OF DISTRIBUTIONS BY A CORPORATION TO ITS
SHAREHOLDERS; UNDER THOSE PROVISIONS, A DISTRIBUTION IS INCLUDABLE IN A
TAXPAYER'S GROSS INCOME AS A DIVIDEND OUT OF EARNINGS AND PROFITS TO
THE EXTENT SUCH EARNINGS EXIST.  /3/  THERE ARE EXCEPTIONS TO THE
APPLICATION OF THESE GENERAL PROVISIONS, HOWEVER, AND AMONG THEM ARE
THOSE FOUND IN SEC. 302 INVOLVING CERTAIN DISTRIBUTIONS FOR REDEEMED
STOCK.  THE BASIC QUESTION IN THIS CASE IS WHETHER THE $25,000
DISTRIBUTION BY THE CORPORATION TO TAXPAYER FALLS UNDER THAT SECTION--
MORE SPECIFICALLY, WHETHER ITS LEGITIMATE BUSINESS MOTIVATION QUALIFIES
THE DISTRIBUTION UNDER SEC. 302(B)(1) OF THE CODE.  PRELIMINARILY,
HOWEVER, WE MUST CONSIDER THE RELATIONSHIP BETWEEN SEC. 302(B)(1) AND
THE RULES REGARDING THE ATTRIBUTION OF STOCK OWNERSHIP FOUND IN SEC.
318(A) OF THE CODE. 

UNDER SUBSECTION (A) OF SEC. 302, A DISTRIBUTION IS TREATED AS
"PAYMENT IN EXCHANGE FOR THE STOCK," THUS QUALIFYING FOR CAPITAL GAINS
RATHER THAN ORDINARY INCOME TREATMENT, IF THE CONDITIONS CONTAINED IN
ANY ONE OF THE FOUR PARAGRAPHS OF SUBSECTION (B) ARE MET.  IN ADDITION
TO PARAGRAPH (1)'S "NOT ESSENTIALLY EQUIVALENT TO A DIVIDEND" TEST,
CAPITAL GAINS TREATMENT IS AVAILABLE WHERE (2) THE TAXPAYER'S VOTING
STRENGTH IS SUBSTANTIALLY DIMINISHED, (3) HIS INTEREST IN THE COMPANY
IS COMPLETELY TERMINATED, OR (4) CERTAIN RAILROAD STOCK IS REDEEMED. 
PARAGRAPH (4) IS NOT INVOLVED HERE, AND TAXPAYER ADMITS THAT PARAGRAPHS
(2) AND (3) DO NOT APPLY.  MOREOVER, TAXPAYER AGREES THAT FOR THE
PURPOSES OF SECS. 302(B)(2) AND (3) THE ATTRIBUTION RULES OF SEC.
318(A) APPLY AND HE IS CONSIDERED TO OWN THE 750 OUTSTANDING SHARES OF
COMMON STOCK HELD BY HIS WIFE AND CHILDREN IN ADDITION TO THE 250
SHARES IN HIS OWN NAME.  /4/ 

TAXPAYER, HOWEVER, ARGUES THAT THE ATTRIBUTION RULES DO NOT APPLY IN
CONSIDERING WHETHER A DISTRIBUTION IS ESSENTIALLY EQUIVALENT TO A
DIVIDEND UNDER SEC. 302(B)(1).  ACCORDING TO TAXPAYER, HE SHOULD THUS
BE CONSIDERED TO OWN ONLY 25 PERCENT OF THE CORPORATION'S COMMON STOCK,
AND THE DISTRIBUTION WOULD THEN QUALIFY UNDER SEC. 302(B)(1) SINCE IT
WAS NOT PRO RATA OR PROPORTIONATE OF HIS STOCK INTEREST, THE
FUNDAMENTAL TEST OF DIVIDEND EQUIVALENCY.  SEE TREAS. REG. 1.302-2(B). 
HOWEVER, THE PLAIN LANGUAGE OF THE STATUTE COMPELS REJECTION OF THE
ARGUMENT.  IN SUBSECTION (C) OF SEC. 302, THE ATTRIBUTION RULES ARE
MADE SPECIFICALLY APPLICABLE "IN DETERMINING THE OWNERSHIP OF STOCK FOR
PURPOSES OF THIS SECTION."  APPLYING THIS LANGUAGE, BOTH COURTS BELOW
HELD THAT SEC. 318(A) APPLIES TO ALL OF SEC. 302, INCLUDING SEC.
302(B)(1)-- A VIEW IN ACCORD WITH THE DECISIONS OF THE OTHER COURTS OF
APPEALS, /5/  A LONGSTANDING TREASURY REGULATION, /6/  AND THE OPINION
OF THE LEADING COMMENTATORS.  /7/ 

AGAINST THIS WEIGHT OF AUTHORITY, TAXPAYER ARGUES THAT THE RESULT
UNDER PARAGRAPH (1) SHOULD BE DIFFERENT BECAUSE THERE IS NO EXPLICIT
REFERENCE TO STOCK OWNERSHIP AS THERE IS IN PARAGRAPHS (2) AND (3). 
NEITHER THAT FACT, HOWEVER, NOR THE PURPOSE AND HISTORY OF SEC.
302(B)(1) SUPPORT TAXPAYER'S ARGUMENT.  THE ATTRIBUTION RULES--
DESIGNED TO PROVIDE A CLEAR ANSWER TO WHAT WOULD OTHERWISE BE A
DIFFICULT TAX QUESTION-- FORMED PART OF THE TAX BILL THAT WAS
SUBSEQUENTLY ENACTED AS THE 1954 CODE.  AS IS DISCUSSED FURTHER, INFRA,
THE BILL AS PASSED BY THE HOUSE OF REPRESENTATIVES CONTAINED NO
PROVISION COMPARABLE TO SEC. 302(B)(1).  WHEN THAT PROVISION WAS ADDED
IN THE SENATE, NO PURPOSE WAS EVIDENCED TO RESTRICT THE APPLICABILITY
OF SEC. 318(A).  RATHER, THE ATTRIBUTION RULES CONTINUED TO BE MADE
SPECIFICALLY APPLICABLE TO THE ENTIRE SECTION, AND WE BELIEVE THAT
CONGRESS INTENDED THAT THEY BE TAKEN INTO ACCOUNT WHEREVER OWNERSHIP OF
STOCK WAS RELEVANT. 

INDEED, IT WAS NECESSARY THAT THE ATTRIBUTION RULES APPLY TO SEC.
302(B)(1) UNLESS THEY WERE TO BE EFFECTIVELY ELIMINATED FROM
CONSIDERATION WITH REGARD TO SECS. 302(B)(2) AND (3) ALSO.  FOR IF A
TRANSACTION FAILED TO QUALIFY UNDER ONE OF THOSE SECTIONS SOLELY
BECAUSE OF THE ATTRIBUTION RULES, IT WOULD ACCORDING TO TAXPAYER'S
ARGUMENT NONETHELESS QUALIFY UNDER SEC. 302(B)(1).  WE CANNOT AGREE
THAT CONGRESS INTENDED SO TO NULLIFY ITS EXPLICIT DIRECTIVE.  WE
CONCLUDE, THEREFORE, THAT THE ATTRIBUTION RULES OF SEC. 318(A) DO
APPLY; AND, FOR THE PURPOSES OF DECIDING WHETHER A DISTRIBUTION IS "NOT
ESSENTIALLY EQUIVALENT TO A DIVIDEND" UNDER SEC. 302(B)(1), TAXPAYER
MUST BE DEEMED THE OWNER OF ALL 1,000 SHARES OF THE COMPANY'S COMMON
STOCK. 

        II 

AFTER APPLICATION OF THE STOCK OWNERSHIP ATTRIBUTION RULES, THIS
CASE VIEWED MOST SIMPLY INVOLVES A SOLE STOCKHOLDER WHO CAUSES PART OF
HIS SHARES TO BE REDEEMED BY THE CORPORATION.  WE CONCLUDE THAT SUCH A
REDEMPTION IS ALWAYS "ESSENTIALLY EQUIVALENT TO A DIVIDEND" WITHIN THE
MEANING OF THAT PHRASE IN SEC. 302(B)(1) /8/  AND THEREFORE DO NOT
REACH THE GOVERNMENT'S ALTERNATIVE ARGUMENT THAT IN ANY EVENT THE
DISTRIBUTION SHOULD NOT ON THE FACTS OF THIS CASE QUALIFY FOR CAPITAL
GAINS TREATMENT.  /9/ 

THE PREDECESSOR OF SEC. 302(B)(1) CAME INTO THE TAX LAW AS SEC.
201(D) OF THE REVENUE ACT OF 1921, 42 STAT. 228: 

"A STOCK DIVIDEND SHALL NOT BE SUBJECT TO TAX BUT IF AFTER THE
DISTRIBUTION OF ANY SUCH DIVIDEND THE CORPORATION PROCEEDS TO CANCEL OR
REDEEM ITS STOCK AT SUCH TIME AND IN SUCH MANNER AS TO MAKE THE
DISTRIBUTION AND CANCELLATION OR REDEMPTION ESSENTIALLY EQUIVALENT TO
THE DISTRIBUTION OF A TAXABLE DIVIDEND, THE AMOUNT RECEIVED IN
REDEMPTION OR CANCELLATION OF THE STOCK SHALL BE TREATED AS A TAXABLE
DIVIDEND . . . . " ENACTED IN RESPONSE TO THIS COURT'S DECISION THAT
PRO RATA STOCK DIVIDENDS DO NOT CONSTITUTE TAXABLE INCOME, EISNER V.
MACOMBER, 252 U.S. 189 (1920), THE PROVISION HAD THE OBVIOUS PURPOSE OF
PREVENTING A CORPORATION FROM AVOIDING DIVIDEND TAX TREATMENT BY
DISTRIBUTING EARNINGS TO ITS SHAREHOLDERS IN TWO TRANSACTIONS-- A PRO
RATA STOCK DIVIDEND FOLLOWED BY A PRO RATA REDEMPTION-- THAT WOULD HAVE
THE SAME ECONOMIC CONSEQUENCES AS A SIMPLE DIVIDEND.  CONGRESS,
HOWEVER, SOON RECOGNIZED THAT EVEN WITHOUT A PRIOR STOCK DIVIDEND
ESSENTIALLY THE SAME RESULT COULD BE EFFECTED WHEREBY ANY CORPORATION,
"ESPECIALLY ONE WHICH HAS ONLY A FEW STOCKHOLDERS WHICH WOULD HAVE THE
SAME EFFECT AS A TAXABLE DIVIDEND."  H.R. REP. NO. 1, 69TH CONG., 1ST
SESS., 5.  IN ORDER TO COVER THIS SITUATION, THE LAW WAS AMENDED TO
APPLY "(WHETHER OR NOT SUCH STOCK WAS ISSUED AS A STOCK DIVIDEND)"
WHENEVER A DISTRIBUTION IN REDEMPTION OF STOCK WAS MADE "AT SUCH TIME
AND IN SUCH MANNER" THAT IT WAS ESSENTIALLY EQUIVALENT TO A TAXABLE
DIVIDEND.  REVENUE ACT OF 1926, SEC. 201(G), 44 STAT. 11. 

THIS PROVISION OF THE 1926 ACT WAS CARRIED FORWARD IN EACH
SUBSEQUENT REVENUE ACT AND FINALLY BECAME SEC. 115(G)(1) OF THE
INTERNAL REVENUE CODE OF 1939.  UNFORTUNATELY, HOWEVER, THE POLICIES
ENCOMPASSED WITHIN THE GENERAL LANGUAGE OF SEC. 115(G)(1) AND ITS
PREDECESSORS WERE NOT CLEAR, AND THERE RESULTED MUCH CONFUSION IN THE
TAX LAW.  AT FIRST, COURTS ASSUMED THAT THE PROVISION WAS AIMED AT TAX
AVOIDANCE SCHEMES AND SOUGHT ONLY TO DETERMINE WHETHER SUCH A SCHEME
EXISTED.  SEE, E.G., COMMISSIONER V. QUACKENBOS, 78 F.2D 156 (C.A. 2D
CIR. 1935).  ALTHOUGH LATER THE EMPHASIS CHANGED AND THE FOCUS WAS MORE
ON THE EFFECT OF THE DISTRIBUTION, MANY COURTS CONTINUED TO FIND THAT
DISTRIBUTIONS OTHERWISE LIKE A DIVIDEND WERE NOT "ESSENTIALLY
EQUIVALENT" IF, FOR EXAMPLE, THEY WERE MOTIVATED BY A SUFFICIENTLY
STRONG NONTAX BUSINESS PURPOSE.  SEE CASES CITED N. 2, SUPRA. THERE WAS
GENERAL DISAGREEMENT, HOWEVER, ABOUT WHAT WOULD QUALIFY AS SUCH A
PURPOSE, AND THE RESULT WAS A CASE-BY-CASE DETERMINATION WITH EACH CASE
DECIDED "ON THE BASIS OF THE PARTICULAR FACTS OF THE TRANSACTION IN
QUESTION."  BAINS V. UNITED STATES, 153 CT.CL. 599, 603, 289 F.2D 644,
646 (1961). 

BY THE TIME OF THE GENERAL REVISION RESULTING IN THE INTERNAL
REVENUE CODE OF 1954, THE DRAFTSMEN WERE FACED WITH WHAT HAS APTLY BEEN
DESCRIBED AS "THE MORASS CREATED BY THE DECISIONS."  BALLENGER V.
UNITED STATES, 301 F.2D 192, 196 (C.A. 4TH CIR. 1962).  IN AN EFFORT TO
ELIMINATE "THE CONSIDERABLE CONFUSION WHICH EXISTS IN THIS AREA" AND
THEREBY TO FACILITATE TAX PLANNING, H.R. REP. NO. 1337, 83D CONG., 2D
SESS., 35, THE AUTHORS OF THE NEW CODE SOUGHT TO PROVIDE OBJECTIVE
TESTS TO GOVERN THE TAX CONSEQUENCES OF STOCK REDEMPTIONS.  THUS, THE
TAX BILL PASSED BY THE HOUSE OF REPRESENTATIVES CONTAINED NO
"ESSENTIALLY EQUIVALENT" LANGUAGE.  RATHER, IT PROVIDED FOR "SAFE
HARBORS" WHERE CAPITAL GAINS TREATMENT WOULD BE ACCORDED TO CORPORATE
REDEMPTIONS THAT MET THE CONDITIONS NOW FOUND IN SECS. 302(B)(2) AND
(3) OF THE CODE. 

IT WAS IN THE SENATE FINANCE COMMITTEE'S CONSIDERATION OF THE TAX
BILL THAT SEC. 302(B)(1) WAS ADDED, AND CONGRESS THEREBY PROVIDED THAT
CAPITAL GAINS TREATMENT SHOULD BE AVAILABLE "IF THE REDEMPTION IS NOT
ESSENTIALLY EQUIVALENT TO A DIVIDEND."  TAXPAYER ARGUES THAT THE
PURPOSE WAS TO CONTINUE "EXISTING LAW," AND THERE IS SUPPORT IN THE
LEGISLATIVE HISTORY THAT SEC. 302(B)(1) REVERTED "IN PART" OR "IN
GENERAL" TO THE "ESSENTIALLY EQUIVALENT" PROVISION OF SEC. 115(G)(1) OF
THE 1939 CODE.  ACCORDING TO THE GOVERNMENT, EVEN UNDER THE OLD LAW IT
WOULD HAVE BEEN IMPROPER FOR THE COURT OF APPEALS TO RELY ON "A
BUSINESS PURPOSE FOR THE REDEMPTION" AND "AN ABSENCE OF THE PROSCRIBED
TAX AVOIDANCE PURPOSE TO BAIL OUT DIVIDENDS AT FAVORABLE TAX RATES." 
SEE NORTHUP V. UNITED STATES, 240 F.2D 304, 307 (C.A. 2D CIR. 1957);
SMITH V. UNITED STATES, 121 F.2D 692, 695 (C.A. 3D CIR. 1941); CF.
COMMISSIONER V. ESTATE OF BEDFORD, 325 U.S. 283 (1945).  HOWEVER, WE
NEED NOT DECIDE THAT QUESTION, FOR WE FIND FROM THE HISTORY OF THE 1954
REVISIONS AND THE PURPOSE OF SEC. 302(B)(1) THAT CONGRESS INTENDED MORE
THAN MERELY TO RE-ENACT THE PRIOR LAW. 

IN EXPLAINING THE REASON FOR ADDING THE "ESSENTIALLY EQUIVALENT"
TEST, THE SENATE COMMITTEE STATED THAT THE HOUSE PROVISIONS "APPEARED
UNNECESSARILY RESTRICTIVE, PARTICULARLY, IN THE CASE OF REDEMPTIONS OF
PREFERRED STOCK WHICH MIGHT BE CALLED BY THE CORPORATION WITHOUT THE
SHAREHOLDER HAVING ANY CONTROL OVER WHEN THE REDEMPTION MAY TAKE
PLACE."  S. REP. NO. 1622, 83D CONG., 2D SESS., 44.  THIS EXPLANATION
GIVES NO INDICATION THAT THE PURPOSE BEHIND THE REDEMPTION SHOULD
AFFECT THE RESULT.  /10/  RATHER, IN ITS MORE DETAILED TECHNICAL
EVALUATION OF SEC. 302(B)(1), THE SENATE COMMITTEE REPORTED AS
FOLLOWS: 

"THE TEST INTENDED TO BE INCORPORATED IN THE INTERPRETATION OF

  PARAGRAPH (1) IS IN GENERAL THAT CURRENTLY EMPLOYED UNDER SECTION

  115(G)(1) OF THE 1939 CODE.  YOUR COMMITTEE FURTHER INTENDS THAT

  IN APPLYING THIS TEST FOR THE FUTURE . . . THE INQUIRY WILL BE

  DEVOTED SOLELY TO THE QUESTION OF WHETHER OR NOT THE TRANSACTION

  BY ITS NATURE MAY PROPERLY BE CHARACTERIZED AS A SALE OF STOCK BY

  THE REDEEMING SHAREHOLDER TO THE CORPORATION.  FOR THIS PURPOSE

  THE PRESENCE OR ABSENCE OF EARNINGS AND PROFITS OF THE

  CORPORATION IS NOT MATERIAL.  EXAMPLE:  X, THE SOLE SHAREHOLDER

  OF A CORPORATION HAVING NO EARNINGS OR PROFITS CAUSES THE

  CORPORATION TO REDEEM HALF OF ITS STOCK.  PARAGRAPH (1) DOES NOT

  APPLY TO SUCH REDEMPTION NOTWITHSTANDING THE ABSENCE OF EARNINGS

  AND PROFITS."  S. REP. NO. 1622, SUPRA, AT 234. 

THE INTENDED SCOPE OF SEC. 302(B)(1) AS REVEALED BY THIS LEGISLATIVE
HISTORY IS CERTAINLY NOT FREE FROM DOUBT.  HOWEVER, WE AGREE WITH THE
GOVERNMENT THAT BY MAKING THE SOLE INQUIRY RELEVANT FOR THE FUTURE THE
NARROW ONE WHETHER THE REDEMPTION COULD BE CHARACTERIZED AS A SALE,
CONGRESS WAS APPARENTLY REJECTING PAST COURT DECISIONS THAT HAD ALSO
CONSIDERED FACTORS INDICATING THE PRESENCE OR ABSENCE OF A TAX
AVOIDANCE MOTIVE.  /11/  AT LEAST THAT IS THE IMPLICATION OF THE
EXAMPLE GIVEN.  CONGRESS CLEARLY MANDATED THAT PRO RATE DISTRIBUTIONS
BE TREATED UNDER THE GENERAL RULES LAID DOWN IN SECS. 301 AND 316
RATHER THAN UNDER SEC. 302, AND NOTHING SUGGESTS THAT THERE SHOULD BE A
DIFFERENT RESULT IF THERE WERE A "BUSINESS PURPOSE" FOR THE
REDEMPTION.  INDEED, JUST THE OPPOSITE INFERENCE MUST BE DRAWN SINCE
THERE WOULD NOT LIKELY BE A TAX-AVOIDANCE PURPOSE IN A SITUATION WHERE
THERE WERE NO EARNINGS OR PROFITS.  WE CONCLUDE THAT THE COURT OF
APPEALS WAS THEREFORE WRONG IN LOOKING FOR A BUSINESS PURPOSE AND
CONSIDERING IT IN DECIDING WHETHER THE REDEMPTION WAS EQUIVALENT TO A
DIVIDEND.  RATHER, WE AGREE WITH THE COURT OF APPEALS FOR THE SECOND
CIRCUIT THAT "THE BUSINESS PURPOSE OF A TRANSACTION IS IRRELEVANT IN
DETERMINING DIVIDEND EQUIVALENCE" UNDER SEC. 302(B)(1).  HASBROOK V.
UNITED STATES, 343 F.2D 811, 814 (1965). 

TAXPAYER STRONGLY ARGUES THAT TO TREAT THE REDEMPTION INVOLVED HERE
AS ESSENTIALLY EQUIVALENT TO A DIVIDEND IS TO ELEVATE FORM OVER
SUBSTANCE.  THUS, TAXPAYER ARGUES, HAD HE NOT BOUGHT BRADLEY'S SHARES
OR HAD HE MADE A SUBORDINATED LOAN TO THE COMPANY INSTEAD OF BUYING
PREFERRED STOCK, HE COULD HAVE GOTTEN BACK HIS $25,000 WITH FAVORABLE
TAX TREATMENT.  HOWEVER, THE DIFFERENCE BETWEEN FORM AND SUBSTANCE IN
THE TAX LAW IS LARGELY PROBLEMATICAL, AND TAXPAYER'S COMPLAINTS HAVE
LITTLE TO DO WITH WHETHER A BUSINESS PURPOSE IS RELEVANT UNDER SEC.
302(B)(1).  IT WAS CLEARLY PROPER FOR CONGRESS TO TREAT DISTRIBUTIONS
GENERALLY AS TAXABLE DIVIDENDS WHEN MADE OUT OF EARNINGS AND PROFITS
AND THEN TO PREVENT AVOIDANCE OF THAT RESULT WITHOUT REGARD TO
MOTIVATION WHERE THE DISTRIBUTION IS IN EXCHANGE FOR REDEEMED STOCK. 

WE CONCLUDE THAT THAT IS WHAT CONGRESS DID WHEN ENACTING SEC.
302(B)(1).  IF A CORPORATION DISTRIBUTES PROPERTY AS A SIMPLE DIVIDEND,
THE EFFECT IS TO TRANSFER THE PROPERTY FROM THE COMPANY TO ITS
SHAREHOLDERS WITHOUT A CHANGE IN THE RELATIVE ECONOMIC INTERESTS OR
RIGHTS OF THE STOCKHOLDERS.  WHERE A REDEMPTION HAS THAT SAME EFFECT,
IT CANNOT BE SAID TO HAVE SATISFIED THE "NOT ESSENTIALLY EQUIVALENT TO
A DIVIDEND" REQUIREMENT OF SEC. 302(B)(1).  RATHER, TO QUALIFY FOR
PREFERRED TREATMENT UNDER THAT SECTION, A REDEMPTION MUST RESULT IN A
MEANINGFUL REDUCTION OF THE SHAREHOLDER'S PROPORTIONATE INTEREST IN THE
CORPORATION.  CLEARLY, TAXPAYER HERE, WHO (AFTER APPLICATION OF THE
ATTRIBUTION RULES) WAS THE SOLE SHAREHOLDER OF THE CORPORATION BOTH
BEFORE AND AFTER THE REDEMPTION, DID NOT QUALIFY UNDER THIS TEST.  THE
DECISION OF THE COURT OF APPEALS MUST THEREFORE BE REVERSED AND THE
CASE REMANDED TO THE DISTRICT COURT FOR DISMISSAL OF THE COMPLAINT. 

  IT IS SO ORDERED. 

/1/  REFERENCES IN THIS OPINION TO "TAXPAYER" ARE TO MACLIN P.
DAVIS.  HIS WIFE IS A PARTY SOLELY BECAUSE JOINT RETURNS WERE FILED FOR
THE YEAR IN QUESTION. 

/2/  ONLY THE SECOND CIRCUIT HAS UNEQUIVOCALLY ADOPTED THE
COMMISSIONER'S VIEW AND HELD IRRELEVANT THE MOTIVATION OF THE
REDEMPTION.  SEE LEVIN V. COMMISSIONER, 385 F.2D 521 (1967); HASBROOK
V. UNITED STATES, 343 F.2D 811 (1965).  THE FIRST CIRCUIT, HOWEVER,
SEEMS ALMOST TO HAVE COME TO THAT CONCLUSION, TOO.  COMPARE WISEMAN V.
UNITED STATES, 371 F.2D 816 (1967), WITH BRADBURY V. COMMISSIONER, 298
F.2D 111 (1962). 

THE OTHER COURTS OF APPEALS THAT HAVE PASSED ON THE QUESTION ARE
APPARENTLY WILLING TO GIVE AT LEAST SOME WEIGHT UNDER SEC. 302(B)(1) TO
THE BUSINESS MOTIVATION OF A DISTRIBUTION AND REDEMPTION.  SEE, E.G.,
COMMISSIONER V. BERENBAUM, 369 F.2D 337 (C.A. 10TH CIR. 1966); KERR V.
COMMISSIONER, 326 F.2D 225 (C.A. 9TH CIR. 1964); BALLENGER V. UNITED
STATES, 301 F.2D 192 (C.A. 4TH CIR. 1962); HEMAN V. COMMISSIONER, 283
F.2D 227 (C.A. 8TH CIR. 1960); UNITED STATES V. FEWELL, 255 F.2D 496
(C.A. 5TH CIR. 1958).  SEE ALSO NEFF V. UNITED STATES, 157 CT.CL. 322,
305 F.2D 455 (1962).  EVEN AMONG THOSE COURTS THAT CONSIDER BUSINESS
PURPOSE, HOWEVER, IT IS GENERALLY REQUIRED THAT THE BUSINESS PURPOSE,
HOWEVER, IT IS GENERALLY REQUIRED THAT THE BUSINESS PURPOSE BE RELATED,
NOT TO THE ISSUANCE OF THE STOCK, BUT TO THE REDEMPTION OF ITS.  SEE
COMMISSIONER V. BERENBAUM, SUPRA; BALLENGER V. UNITED STATES, SUPRA. 

/3/  SEE, E.G., COMMISSIONER V. GORDON, 391 U.S. 83, 88-89 (1968). 
TAXPAYER MAKES NO CONTENTION THAT THE CORPORATION DID NOT HAVE $25,000
IN ACCUMULATED EARNINGS AND PROFITS. 

/4/  SECTION 318(A) PROVIDES IN RELEVANT PART AS FOLLOWS: 

"GENERAL RULE.-- FOR PURPOSE OF THOSE PROVISIONS OF THIS SUBCHAPTER
TO WHICH THE RULES CONTAINED IN THIS SECTION ARE EXPRESSLY MADE
APPLICABLE-- 

"(1) MEMBERS OF FAMILY.-- 

"(A) IN GENERAL.-- AN INDIVIDUAL SHALL BE CONSIDERED AS OWNING THE
STOCK OWNED, DIRECTLY OR INDIRECTLY, BY OR FOR-- 

"(I) HIS SPOUSE (OTHER THAN A SPOUSE WHO IS LEGALLY SEPARATED FROM
THE INDIVIDUAL UNDER A DECREE OF DIVORCE OR SEPARATE MAINTENANCE), AND 

"(II) HIS CHILDREN, GRANDCHILDREN, AND PARENTS."  IN SEC. 318(B) THE
RULES CONTAINED IN SUBSECTION (A) ARE MADE SPECIFICALLY APPLICABLE TO
"SECTION 302 (RELATING TO REDEMPTION OF STOCK)." 

/5/  SEE LEVIN V. COMMISSIONER, 385 F.2D 521, 526-527 (C.A. 2D CIR.
1967); COMMISSIONER V. BERENBAUM, 369 F.2D 337, 342 (C.A. 10TH CIR.
1966); BALLENGER V. UNITED STATES, 301 F.2D 192, 199 (C.A. 4TH CIR.
1962); BRADBURY V. COMMISSIONER, 298 F.2D 111, 116-117 (C.A. 1ST CIR.
1962). 

/6/  SEE TREAS. REG. 1.302-2(B). 

/7/  SEE B. BITTKER & J. EUSTICE, FEDERAL INCOME TAXATION OF
CORPORATIONS AND SHAREHOLDERS 292 N. 32 (2D ED. 1966). 

/8/  OF COURSE, THIS JUST MEANS THAT A DISTRIBUTION IN REDEMPTION TO
A SOLE SHAREHOLDER WILL BE TREATED UNDER THE GENERAL PROVISIONS OF SEC.
301, AND IT WILL ONLY BE TAXED AS A DIVIDEND UNDER SEC. 316 TO THE
EXTENT THAT THERE ARE EARNINGS AND PROFITS. 

/9/  THE GOVERNMENT ARGUES THAT EVEN IF BUSINESS PURPOSE WERE
RELEVANT UNDER SEC. 302(B)(1), THE BUSINESS PURPOSE PRESENT HERE
RELATED ONLY TO THE ORIGINAL INVESTMENT AND NOT AT ALL TO THE NECESSITY
FOR REDEMPTION.  SEE CASES CITED, N. 2, SUPRA.  UNDER EITHER VIEW,
TAXPAYER DOES NOT LOSE HIS BASIS IN THE PREFERRED STOCK.  UNDER TREAS.
REG. 1.302-2(C) THAT BASIS IS APPLIED TO TAXPAYER'S COMMON STOCK. 

/10/  SEE BITTKER & EUSTICE, SUPRA, N. 7, AT 291:  "IT IS NOT EASY
TO GIVE SEC. 302(B)(1) AN EXPANSIVE CONSTRUCTION IN VIEW OF THIS
INDICATION THAT ITS MAJOR FUNCTION WAS THE NARROW ONE OF IMMUNIZING
REDEMPTIONS OF MINORITY HOLDINGS OF PREFERRED STOCK." 

/11/  THIS REJECTION IS CONFIRMED BY THE COMMITTEE'S ACCEPTANCE OF
THE HOUSE TREATMENT OF DISTRIBUTIONS INVOLVING CORPORATE CONTRACTIONS--
A FACTOR PRESENT IN MANY OF THE EARLIER "BUSINESS PURPOSE"
REDEMPTIONS.  IN DESCRIBING ITS ACTION, THE COMMITTEE STATED AS
FOLLOWS: 

"YOUR COMMITTEE, AS DID THE HOUSE BILL, SEPARTES INTO THIER
SIGNIFICANT ELEMENTS THE KIND OF TRANSACTIONS NOW INCOHERENTLY
AGGREGATED IN THE DEFINITION OF A PARTIAL LIQUIDATION.  THOSE
DISTRIBUTIONS WHICH MAY HAVE CAPITAL-GAIN CHARACTERISTICS BECAUSE THEY
ARE NOT MADE PRO RATE AMONG THE VARIOUS SHAREHOLDERS WOULD BE
SUBJECTED, AT THE SHAREHOLDER LEVEL, TO THE SEPARATE TESTS DESCRIBED IN
(SECS. 301 TO 318).  ON THE OTHER HAND, THOSE DISTRIBUTIONS
CHARACTERIZED BY WHAT HAPPENS SOLELY AT THE CORPORATE LEVEL BY REASON
OF THE ASSETS DISTRIBUTED WOULD BE INCLUDED AS WITHIN THE CONCEPT OF A
PARTIAL LIQUIDATION."  S. REP. NO. 1622, SUPRA, AT 49. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

I AGREE WITH DISTRICT COURT, 274 F.SUPP.  466, AND WITH THE COURT OF
APPEALS, 408 F.2D 1139, THAT RESPONDENT'S CONTRIBUTION OF WORKING
CAPITAL IN THE AMOUNT OF $25,000 IN EXCHANGE FOR 1,000 SHARES OF
PREFERRED STOCK WITH A PAR VALUE OF $25 WAS MADE IN ORDER FOR THE
CORPORATION TO OBTAIN A LOAN FROM THE RFC AND THAT THE PREFERRED STOCK
WAS TO BE REDEEMED WHEN THE LOAN WAS REPAID.  FOR THE REASONS STATED BY
THE TWO LOWER COURTS, THIS REDEMPTION WAS NOT "ESSENTIALLY EQUIVALENT
TO A DIVIDEND," FOR THE BONA FIDE BUSINESS PURPOSE OF THE REDEMPTION
BELIES THE PAYMENT OF A DIVIDEND.  AS STATED BY THE COURT OF APPEALS: 

"ALTHOUGH CLOSELY-HELD CORPORATIONS CALL FOR CLOSE SCRUTINY UNDER
THE TAX LAW, WE WILL NOT, UNDER THE FACTS AND CIRCUMSTANCES OF THIS
CASE, ALLOW MECHANICAL ATTRIBUTION RULES TO TRANSFORM A LEGITIMATE
CORPORATE TRANSACTION INTO A TAX AVOIDANCE SCHEME."  408 F.2D, AT 1143
1144. 

WHEN THE COURT HOLDS IT WAS A DIVIDEND, IT EFFECTIVELY CANCELS SEC.
302(B)(1) FROM THE CODE.  THIS RESULT IS NOT A MATTER OF CONJECTURE,
FOR THE COURT SAYS THAT IN THE CASE OF CLOSELY HELD OR ONE-MAN
CORPORATIONS A REDEMPTION OF STOCK IS "ALWAYS" EQUIVALENT TO A
DIVIDEND.  I WOULD LEAVE SUCH REVISION TO THE CONGRESS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WALTERS, MATTHEW
J. ZINN, AND WILLIAM L. GOLDMAN. 

WILLIAM WALLER ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS ROBERT G. MCCULLOUGH. 
..END :












ARNOLD TOURS, INC. V. CAMP, COMPTROLLER OF THE CURRENCY, 397 U.S.
315 



       ARNOLD TOURS, INC., ET AL. V. CAMP, COMPTROLLER OF THE

           CURRENCY, ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIRST CIRCUIT

        NO. 128.  DECIDED MARCH 23, 1970 


CERTIORARI GRANTED; 408 F.2D 1147, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT IS VACATED. 
THE CASE IS REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT
OF ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS V. CAMP, ANTE,
P. 150, AND BARLOW V. COLLINS, ANTE, P. 159. 

TIMOTHY J. MURPHY FOR PETITIONERS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS,
AND ALAN S. ROSENTHAL FOR CAMP, AND DOUGLAS L. LEY FOR SOUTH SHORE
NATIONAL BANK, RESPONDENTS. 
..END :





















HOGAN V. JAMES, 397 U.S. 315 


       HOGAN V. JAMES ET UX.

        APPEAL FROM THE COURT OF APPEALS OF MARYLAND

        NO. 1055.  DECIDED MARCH 23, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














MAKAH INDIAN TRIBE V. WASHINGTON, 397 U.S. 316 


       MAKAH INDIAN TRIBE V. WASHINGTON

        APPEAL FROM THE SUPREME COURT OF WASHINGTON

        NO. 922.  DECIDED MARCH 23, 1970 


76 WASH.2D 485, 457 P.2D 590, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

ROBERT J. PIRTLE AND ALVIN J. ZIONTZ FOR APPELLANT. 

SLADE GORTON, ATTORNEY GENERAL OF WASHINGTON, AND JANE DOWDLE SMITH
AND STEVEN C. WAY, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEE. 
..END :










MARKS V. CHIEF OF POLICE OF THE CITY OF LOS ANGELES, 397 U.S. 316 


       MARKS V. CHIEF OF POLICE OF THE CITY OF LOS ANGELES ET AL.

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT

        NO. 1107.  DECIDED MARCH 23, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

BURTON MARKS, APPELLANT, PRO SE. 

ROGER ARNEBERGH FOR APPELLEES. 
..END :








FRIEDMAN V. NEW YORK, 397 U.S. 317 


       FRIEDMAN V. NEW YORK

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 1137.  DECIDED MARCH 23, 1970 


24 N.Y.2D 528, 249 N.E.2D 369, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MARX LEVA, ALEXANDER B. HAWES, AND RICHARD E. NOLAN FOR APPELLANT. 
LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, RUTH KESSLER TOCH,
SOLICITOR GENERAL, AND JERMIAH JOCHNOWITZ, ASSISTANT ATTORNEY GENERAL,
FOR APPELLEE. 
..END :










OHLSON V. PHILLIPS, 397 U.S. 317 


       OHLSON ET AL. V. PHILLIPS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLORADO

        NO. 1182.  DECIDED MARCH 23, 1970 


304 F.SUPP.  1152, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

WILLIAM F. REYNARD FOR APPELLANTS. 

DUKE W. DUNBAR, ATTORNEY GENERAL OF COLORADO, AND MICHAEL T. HALEY,
JOHN P. HOLLOWAY, AND JOHN E. BUSH, ASSISTANT ATTORNEYS GENERAL, FOR
APPELLEES. 
..END :








GINGER V. KELLEY, ATTORNEY GENERAL OF MICHIGAN, 397 U.S. 318 


       GINGER V. KELLEY, ATTORNEY GENERAL OF MICHIGAN, ET AL.

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH

           CIRCUIT

        NO. 1374, MISC.  DECIDED MARCH 23, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

ALOYSIUS J. SUCHY FOR APPELLEES BUBACK ET AL.
..END :









NIEDER V. FULLERTON, TRUSTEE, 397 U.S. 318 


       NIEDER V. FULLERTON, TRUSTEE, ET AL.

        APPEAL FROM THE SUPREME COURT OF NEW JERSEY

        NO. 1403, MISC.  DECIDED MARCH 23, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

ALFRED C. CLAPP FOR APPELLEES. 
..END :












CAIN V. KENTUCKY, 397 U.S. 319 


       CAIN ET AL. V. KENTUCKY

        APPEAL FROM THE COURT OF APPEALS OF KENTUCKY

        NO. 347.  DECIDED MARCH 23, 1970 


437 S.W.2D 769, REVERSED. 

PER CURIAM. 

THE JUDGEMENT IS REVERSED.  REDRUP V. NEW YORK, 386 U.S. 767. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

IN MY VIEW WE SHOULD NOT FLEXIBLY DENY TO EACH OF THE STATES THE
POWER TO ADOPT AND ENFORCE ITS OWN STANDARDS AS TO OBSCENITY AND
PORNOGRAPHIC MATERIALS; STATES OUGHT TO BE FREE TO DEAL WITH VARYING
CONDITIONS AND PROBLEMS IN THIS AREA.  I AM UNWILLING TO SAY THAT
KENTUCKY IS WITHOUT POWER TO BAR PUBLIC SHOWING OF THIS FILM;
THEREFORE, I WOULD AFFIRM THE JUDGMENT FROM WHICH THE APPEAL IS TAKEN. 

MR. JUSTICE HARLAN, DISSENTING. 

IF THIS CASE INVOLVED OBSCENITY REGULATION BY THE FEDERAL
GOVERNMENT, I WOULD UNHESITATINGLY REVERSE THE CONVICTION, FOR THE
REASONS STATED IN MY SEPARATE OPINION IN ROTH V. UNITED STATES, 354
U.S. 476, 496 (1957).  EVEN IN LIGHT OF THE MUCH GREATER FLEXIBILITY
THAT I HAVE ALWAYS THOUGHT SHOULD BE ACCORDED TO THE STATES IN THIS
FIELD, SEE, E.G., MY DISSENTING OPINION IN JACOBELLIS V. OHIO, 379 U.S.
184, 203 (1964), SUPPRESSION OF THIS PARTICULAR FILM PRESENTS A
BORDERLINE QUESTION.  HOWEVER, LAYING ASIDE MY OWN PERSONAL ESTIMATE OF
THE FILM, I CANNOT SAY THAT KENTUCKY HAS EXCEEDED THE CONSTITUTIONAL
SPEED LIMIT IN BANNING PUBLIC SHOWING OF THE FILM WITHIN ITS BORDERS,
AND ACCORDINGLY I VOTE TO AFFIRM THE JUDGMENT BELOW. 

EDMUND C. GRAINGER, JR., AND JAMES E. THORNBERRY FOR APPELLANTS. 

JOHN B. BRECKINRIDGE, ATTORNEY GENERAL OF KENTUCKY, AND JOHN B.
BROWNING, ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :










SANCHEZ V. UNITED STATES, 397 U.S. 320 


       SANCHEZ V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 943, MISC.  DECIDED MARCH 23, 1970 


412 F.2D 1177; CERTIORARI GRANTED, JUDGMENT VACATED AND CASE REMANDED
TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA WITH RESPECT TO COUNT 3 OF THE INDICTMENT; CERTIORARI OTHERWISE
DENIED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  UPON
CONSIDERATION OF THE SUGGESTION OF THE SOLICITOR GENERAL AND UPON
EXAMINATION OF THE ENTIRE RECORD, THE PETITION FOR A WRIT OF CERTIORARI
IS GRANTED INSOFAR AS IT SEEKS REVIEW OF THE JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMING PETITIONER'S
CONVICTION ON COUNT 3 OF THE INDICTMENT CHARGING A VIOLATION OF 26
U.S.C. 4704.  THE JUDGMENT OF THE COURT OF APPEALS WITH RESPECT TO
COUNT 3 IS VACATED AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WITH DIRECTIONS TO
DISMISS COUNT 3 OF THE INDICTMENT.  THE PETITION FOR A WRIT OF
CERTIORARI IS OTHERWISE DENIED. 

ALFRED M. CARVAJAL FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :



















CAPITAL SOUTHWEST CORP. V. CALVERT, COMPTROLLER OF PUBLIC ACCOUNTS OF
TEXAS, 397 U.S. 321 



       CAPITAL SOUTHWEST CORP. ET AL. V. CALVERT, COMPTROLLER OF

           PUBLIC ACCOUNTS OF TEXAS, ET AL.

   APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, THIRD

           SUPREME JUDICIAL DISTRICT

        NO. 1130.  DECIDED MARCH 23, 1970 


441 S.W.2D 247, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

J. SAM WINTERS, HENRY D. AKIN, JR., AND WILLIAM D. POWELL FOR
APPELLANTS. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, PRO SE, NOLA WHITE,
FIRST ASSISTANT ATTORNEY GENERAL, ALFRED WALKER, EXECUTIVE ASSISTANT
ATTORNEY GENERAL, JOHN R. GRACE AND WILLIAM EDWARD ALLEN, ASSISTANT
ATTORNEYS GENERAL, AND WILLIAM B. HILGERS, SPECIAL ASSISTANT ATTORNEY
GENERAL, FOR APPELLEES. 
..END :





















COLE V. RICHARDSON, 397 U.S. 238 


       COLE, BOSTON STATE HOSPITAL SUPERINTENDENT, ET AL. V.

           RICHARDSON

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS

        NO. 679.  DECIDED MARCH 16, 1970  /1/ 


300 F.SUPP.  1321, VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASES ARE REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS TO DETERMINE
WHETHER THESE CASES HAVE BECOME MOOT. 

/1/  TOGETHER WITH NO. 774, RICHARDSON V. COLE, BOSTON STATE
HOSPITAL SUPERINTENDENT, ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

MR. JUSTICE HARLAN, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING IN
THE RESULT. 

THE PRESENT APPEALS ARE FROM A SINGLE ACTION COMMENCED IN THE
FEDERAL DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS BY MRS.
RICHARDSON, CHALLENGING THE VALIDITY OF MASS. GEN LAWS ANN., C. 264,
SEC. 14 (1959).  THAT LAW REQUIRES ALL PUBLIC EMPLOYEES TO SUBSCRIBE TO
A LOYALTY OATH WHICH READS AS FOLLOWS: 

     "I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL UPHOLD AND DEFEND

  THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND THE

  CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS AND THAT I WILL

  OPPOSE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OF

  AMERICA OR OF THIS COMMONWEALTH BY FORCE, VIOLENCE OR BY ANY

  ILLEGAL OR UNCONSTITUTIONAL METHOD." 

MRS. RICHARDSON SOUGHT DECLARATORY AND INJUNCTIVE RELIEF AGAINST
ENFORCEMENT OF THE OATH AS A BAR TO HER RESUMING EMPLOYMENT WITH BOSTON
STATE HOSPITAL, AND ALSO SOUGHT DAMAGES FOR PAY WITHHELD BY REASON OF
HER HAVING REFUSED TO SUBSCRIBE TO THE OATH. 

THE DISTRICT COURT GRANTED THE REQUESTED DECLARATORY AND INJUNCTIVE
RELIEF, BUT STATED IN ITS OPINION, "WE CANNOT GRANT HER (MRS.
RICHARDSON'S) REQUEST FOR BACK PAY."  /1/  ACCORDINGLY, THE FORMAL
JUDGMENT CONTAINED NO ALLUSION TO THE BACK-PAY REQUEST. 

DR. COLE, THE HOSPITAL SUPERINTENDENT, AND ANOTHER OFFICIAL IN NO. 679
APPEAL FROM THE AWARD OF DECLARATORY AND INJUNCTIVE RELEIF.  MRS
RICHARDSON HAS CROSS-APPEALED FROM THE DENIAL OF BACK PAY AND BY WAY OF
RESPONSE TO THE APPEAL MOVED FOR SUMMARY AFFIRMANCE AND SUGGESTED, IN
THE ALTERNATIVE, TAHT THE APPEAL IS MOOT SINCE THE PARTICULAR JOB SHE
HELD HAS BEEN "DISCONTINUED."  IN REPLY, DR. COLE HAS SUBMITTED AN
AFFIDAVIT ASSERTING THAT "(EMPLOYMENT CONSONANT WITH (MRS.
RICHARDSON'S) ABILITIES AND QUALIFICATIONS HAS BEEN AND IS PERIODICALLY
AVAILABLE SHOULD SHE WISH TO APPLY FOR SUCH EMPLOYMENT." 

I FAIL TO UNDERSTAND TODAY'S WHOLLY UNEXPLAINED AND EXTRAORDINARY
DISPOSITION OF REMANDING TO THE LOWER COURT TO DETERMINE IF THESE CASES
ARE MOOT.  SINCE APPELLANTS IN NO. 679 HAVE NOT DISPUTED MRS.
RICHARDSON'S SPECIFIC STATEMENT THAT THE JOB SHE HELD IS NO LONGER IN
EXISTENCE, THERE MAY BE SOME QUESTION AS TO WHETHER A CONTROVERSY
CONTINUES TO EXIST IN THAT CASE, ALTHOUGH I WOULD HAVE THOUGHT THIS
QUESTION ONE TO BE RESOLVED BY THIS CORUT, WITHOUT THE NECESSITY OF A
REMAND.  CERTAINLY, HOWEVER, THERE CAN BE NO QUESTION THAT A LIVE
CONTROVERSY EXISTS OVER THE DAMAGES QUESTION. 

I AM, HOWEVER, CONTENT TO ACQUIESCE IN THE COURT'S ACTION BECAUSE OF
THE MANIFEST TRIVIALITY OF THE IMPACT OF THE OATH UNDER CHALLENGE, A
FACTOR THAT MAY, I SUSPECT, UNDERLIE TODAY'S UNUSUAL DISPOSITION. 

WHETHER OR NOT ONE CONSIDERS THAT THE DISTRICT COURT ERRED IN WHAT
PERFORCE AMOUNTS TO AN EXERCISE IN SEMANTICS, I WOULD SUPPOSE THAT THE
VAGUENESS CONTENTIONS IN THIS INSTANCE CAN, DEPENDING ON HOW ONE
DEFINES HIS TERMS, BE CHARACTERIZED AS AT LEAST COLORABLE-- FOR, AS THE
OPINION BELOW APTLY POINTS OUT, ALMOST ANY WORD OR PHRASE MAY BE
RENDERED VAGUE AND AMBIGUOUS BY DISSECTION WITH A SEMANTIC SCALPEL.  I
DO NOT, HOWEVER, CONSIDER IT A PROVIDENT USE OF THE TIME OF THIS COURT
TO COACH WHAT AMOUNTS TO LITTLE MORE THAN VERBAL CALISTHENICS.  CF. S.
CHASE, THE TYRANNY OF WORDS (1959); W. EMPSON, SEVEN TYPES OF AMBIGUITY
(1955).  THIS KIND OF SEMANTIC INQUIRY, HOWEVER INTERESTING, SHOULD NOT
OCCUPY THE TIME OF FEDERAL COURTS UNLESS FUNDAMENTAL RIGHTS TURN ON THE
OUTCOME. 

I THINK IT CAN BE FAIRLY SAID THAT SUBSCRIBING TO THE INSTANT OATH
SUBJECTED MRS. RICHARDSON TO NO MORE THAN AN AMENITY.  NO FIRST
AMENDMENT CONSIDERATIONS, IN MY VIEW, ARE AT ALL INVOLVED IN THESE
CASES.  THIS OATH DOES NOT IMPINGE ON CONSCIENCE OR BELIEF, EXCEPT TO
THE EXTENT THAT OATH TAKING AS SUCH MAY OFFEND PARTICULAR INDIVIDUALS. 
I ALSO THINK IT SAFE TO SAY THAT THE SIGNING OF THIS OATH TRIGGERED NO
SERIOUS POSSIBILITY OF PROSECUTION FOR EITHER PERJURY OR FAILURE TO
PERFORM THE OBLIGATIONS OF THE OATH.  INDEED, I CONSIDER IT MOST
UNFORTUNATE THAT OUR PAST DECISIONS IN THIS FIELD CAN BE CONSTRUED EVEN
TO REQUIRE SOLEMN CONVOCATION OF THREE FEDERAL JUDGES TO DEAL WITH A
MATTER OF SUCH PRACTICAL INCONSEQUENCE. 

/1/  IT APPEARS FROM MRS. RICHARDSON'S JURISDICTIONAL STATEMENT IN
NO. 774 THAT SHE STIPULATED IN THE DISTRICT COURT THAT AFTER HER FORMAL
TERMINATION OF EMPLOYMENT ON NOVEMBER 25, 1968, FOR REFUSING TO TAKE
THE OATH, SHE "VOLUNTEERED TO WORK FULL-TIME AT BOSTON STATE HOSPITAL .
. . TO CONTINUE HER RESEARCH PROJECT." 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE PLAINTIFF RICHARDSON BROUGHT THIS ACTION BEFORE A THREE-JUDGE
DISTRICT COURT TO DECLARE UNCONSTITUTIONAL A MASSACHUSETTS LOYALTY OATH
STATUTE, TO ENJOIN HER SUPERIORS AT THE BOSTON STATE HOSPITAL FROM
PROHIBITING HER FROM DISCHARGING HER DUTIES AT THE HOSPITAL, AND TO
RECOVER BACK PAY.  THE DISTRICT COURT ENTERED ITS OPINION, GRANTING THE
DECLARATORY AND INJUNCTIVE AND DECLARATORY RELIEF IN THE DISTRICT COURT
ON JULY 30, 1969, AND DOCKETED A TIMELY APPEAL IN THIS COURT ON
SEPTEMBER 29, 1969.  NOTICE OF APPEAL FROM THE DENIAL OF BACK PAY WAS
FILED IN NO. 774 IN THE DISTRICT COURT ON AUGUST 25, 1969, AND A TIMELY
APPEAL WAS DOCKETED IN THIS COURT ON OCTOBER 24, 1969. 

ON OCTOBER 25, 1969, APPELLEE IN NO. 679 FILED A MOTION TO AFFIRM OR
DISMISS ON THE GROUNDS OF MOOTNESS:  "AT THE TIME THIS CASE WAS HEARD
AND ARGUED IN THE DISTRICT COURT THE APPELLEE'S JOB AT BOSTON STATE
HOSPITAL WAS STILL IN EXISTENCE, BUT AT OR BEFORE THE TIME THE
APPELLANTS FILED THEIR PRESENT APPEAL SUCH JOB HAD BEEN DISCONTINUED." 

IN REPLY, APPELLANTS IN NO. 679 DENY THAT THE CASE IS MOOT AND IN
SUPPORT THEREOF SUBMIT AN AFFIDAVIT OF DR. COLE, SUPERINTENDENT OF THE
BOSTON STATE HOSPITAL, WHICH STATES: 

     "1.  AT ALL TIMES SUBSEQUENT TO THE DECISION OF THE UNITED

  STATES DISTRICT COURT IN THE ABOVE-ENTITLED CASE ON JUNE 26, 1969

  IT HAS BEEN, AND AT THE PRESENT TIME IS, OPEN FOR THE APPELLEE

  LUCRETIA PETEROS RICHARDSON TO APPLY FOR EMPLOYMENT AT BOSTON

  STATE HOSPITAL AND ENJOY FULL CONSIDERATION PURSUANT TO THE TERMS

  OF THE DECISION OF THE DISTRICT COURT; 

     "2.  EMPLOYMENT CONSONANT WITH HER ABILITIES AND
QUALIFICATIONS

  HAS BEEN AND PERIODICALLY AVAILABLE SHOULD SHE WISH TO APPLY FOR

SUCH EMPLOYMENT; 

     "3.  THE PROJECT FOR WHICH THE APPELLEE WAS HIRED IS STILL

  ON-GOING AT BOSTON STATE HOSPITAL." 

I DO NOT SEE HOW ONE CAN EVEN ARGUABLY MAINTAIN THAT THE CASES ARE
MOOT. 

THE QUESTION TENDERED IS AN IMPORTANT ONE.  THE STATE OATH STRUCK
DOWN BY THE DISTRICT COURT ON THE GROUNDS OF VAGUENESS READS AS
FOLLOWS: 

     "I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL UPHOLD AND DEFEND

  THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND THE

  CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS AND THAT I WILL

 OPPOSE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OF

  AMERICA OR OF THIS COMMONWEALTH BY FORCE, VIOLENCE OR BY ANY

  ILLEGAL OR UNCONSTITUTIONAL METHOD."  MASS. GEN. LAWS ANN., C.

  264, SEC. 14 (1959). 

THE DISTRICT COURT SAID: 

"A 'VIOLATION' OF SECTION 14, WHICH PRESUMABLY MEANS A FAILURE TO
'LIVE UP' TO THE OATH, SINCE ITS PHRASEOLOGY IS IN THE FUTURE TENSE, IS
A FELONY."  300 F.SUPP.,AT 1322. 

THE UNANIMOUS OPINION OF THE DISTRICT COURT HOLDING THE OATH
UNCONSTITUTIONAL IS EARNESTLY CHALLENGED BY APPELLANTS IN NO. 679, WHO
MAINTAIN THAT THE INVALIDATION OF THE OATH IS AN UNWARRANTED FEDERAL
INVASION OF THE STATE'S DOMAIN. 

I WOULD NOTE PROBABLE JURISDICTION ON BOTH APPEALS AND PUT THE CASES
DOWN FOR ORAL ARGUMENT. 

ROBERT H. QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, MARK L. COHEN,
ASSISTANT ATTORNEY GENERAL, AND GREGOR I. MCGREGOR, DEPUTY ASSISTANT
ATTORNEY GENERAL, FOR APPELLANTS IN NO. 679.  MESSRS.  QUINN, COHEN,
MCGREGOR, AND WALTER H. MAYO III, ASSISTANT ATTORNEY GENERAL, FOR
APPELLEES IN NO. 774. 

ERNEST WINSOR AND JOHN F. COGAN, JR., FOR APPELLEE IN NO. 679 AND
APPELLANT IN NO. 774. 
..END :






MARTIN-TRIGONA V. STATE BOARD OF LAW EXAMINERS OF ILLINOIS, 397 U.S.
244 


       MARTIN-TRIGONA V. STATE BOARD OF LAW EXAMINERS OF ILLINOIS

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 1360, MISC.  DECIDED MARCH 16, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :













UNITED STATES V. OGLE, 397 U.S. 244 


       UNITED STATES V. OGLE

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF INDIANA

        NO. 737.  DECIDED MARCH 16, 1970 


JUDGMENT REVERSED AND REMANDED ON COUNT 1 OF THE INDICTMENT AND
AFFIRMED ON COUNT 2. 

PER CURIAM. 

THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF INDIANA DISMISSING COUNT 1 OF THE INDICTMENT UNDER 26
U.S.C. 4742(A) IS REVERSED AND THE CASE IS REMANDED TO THAT COURT FOR
TRIAL ON THAT COUNT.  MINOR V. UNITED STATES, 396 U.S. 87.  THE
JUDGMENT OF THE SAME COURT DISMISSING COUNT 2 OF THE INDICTMENT UNDER
26 U.S.C. 4744(A)(1) IS AFFIRMED. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND MERVYN HAMBURG FOR THE UNITED STATES. 
..END :





HAMILTON V. MCKEITHEN, GOVERNOR OF LOUISIANA, 397 U.S. 245 


       HAMILTON ET AL. V. MCKEITHEN, GOVERNOR OF LOUISIANA

        APPEAL FROM THE SUPREME COURT OF LOUISIANA

    NO. 1046.  DECIDED MARCH 16, 1970 


254 LA. 683, 226 SO2D 494, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

C. ALVIN TYLER FOR APPELLANTS. 

JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, AND SAM H.
JONES FOR APPELLEE AND INTERVENORS BELOW. 
..END :










TRYON V. IOWA, 397 U.S. 245 


       TRYON V. IOWA

        APPEAL FROM THE SUPREME COURT OF IOWA

        NO. 1090.  DECIDED MARCH 16, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIROARI, CERTIORARI IS DENIED. 

DONALD E. O'BRIEN FOR APPELLANT. 

RICHARD C. TURNER, ATTORNEY GENERAL OF IOWA, AND DAVID A. ELDERKIN
AND MICHAEL J. LAUGHLIN, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEE. 
..END :









BRATCHER V. LAIRD, SECRETARY OF DEFENSE, 397 U.S. 246 


       BRATCHER V. LAIRD, SECRETARY OF DEFENSE, ET AL.

       ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURTS OF APPEALS FOR THE NINTH CIRCUIT

      NO. 1391, MISC.  DECIDED MARCH 16, 1970 


CERTIORARI GRANTED; 415 F.2D 760, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. 

UPON CONSIDERATION OF THE SUGGESTION OF THE SOLICITOR GENERAL AND
UPON AN EXAMINATION OF THE ENTIRE RECORD, THE PETITION FOR A WRIT OF
CERTIORARI IS GRANTED, THE JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT IS VACATED, AND THE CASE IS REMANDED TO
THAT COURT IN ORDER THAT IT MAY CONSIDER WHETHER IT WISHES TO ADHERE TO
ITS DECISION IN LIGHT OF THE CONTRARY POSITION NOW ADOPTED BY
RESPONDENTS.  IF IT DECIDES NOT TO ADHERE TO ITS FORMER RULING, THE
COURT OF APPEALS MAY THEN DETERMINE WHETHER IT WOULD BE APPROPRIATE TO
REMAND THE CASE TO THE DISTRICT COURT. 

SOLICITOR GENERAL GRISWOLD FOR RESPONDENTS. 
..END :
























NORTHERN FREIGHT LINES, INC. V. UNITED STATES, 397 U.S. 247 


       NORTHERN FREIGHT LINES, INC., ET AL. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA

     NO. 1100.  DECIDED MARCH 16, 1970 


304 F.SUPP.  536, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

GUY H. POSTELL, DAVID A. SUTHERLUND, DAVID AXELROD, ROLAND RICE,
JOHN S. FESSENDEN, RICHARD R. SIGMON, PETER T. BEARDSLEY, R. EDWIN
BRADY, ALBERT B. ROSENBAUM, DONALD E. CROSS, BRYCE REA, JR., EUGENE T.
LIIPFERT, AND WILLIAM O. TURNEY FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
HOWARD E. SHAPIRO, ROBERT W. GINNANE, FRITZ R. KAHN, AND RAYMOND M.
ZIMMET FOR THE UNITED STATES ET AL., JOHN E. ROBSON AND ARTHUR M.
WISEHART FOR RAILWAY EXPRESS AGENCY, INC., AND JOHN J. C. MARTIN FOR
DRUG & TOILET PREPARATION TRAFFIC CONFERENCE ET AL., APPELLEES. 
..END :
























CITY OF NEW YORK V. UNITED STATES, 397 U.S. 248 


       CITY OF NEW YORK V. UNITED STATES ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL

           DISTRICT OF CALIFORNIA

        NO. 1121.  DECIDED MARCH 16, 1970  /1/ 


307 F.SUPP.  617, AFFIRMED IN NO. 1121, APPEAL DISMISSED IN NO.
1122. 

PER CURIAM. 

IN NO. 1121 THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS
AFFIRMED. 

IN NO. 1122 THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS
DISMISSED FOR WANT OF JURISDICTION. 

/1/  TOGETHER WITH NO. 1122, GROSSMAN ET AL. V. AUTOMOBILE
MANUFACTURERS ASSN., INC., ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

J. LEE RANKIN, NORMAN REDLICH, JOHN R. THOMPSON, AND DAVID I.
SHAPIRO FOR APPELLANT IN NO. 1121.  BENJAMIN F. SCHWARTZ AND HERBERT A.
KARZEN FOR APPELLANTS IN NO. 1122. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
HOWARD E. SHAPIRO AND BERNARD M. HOLLANDER FOR THE UNITED STATES IN
BOTH CASES.  CARL J. SCHUCK, WAYNE H. KNIGHT, FRED D. FAGG III, PHILIP
K. VERLEGER, ALLYN O. KREPS, JULIAN O. VON KALINOWSKI, LLOYD N. CUTLER,
HOWARD P. WILLENS, JAMES S. CAMPBELL, ROSS L. MALONE, AND MARCUS
MATTSON FOR AUTOMOBILE MANUFACTURERS ASSN., INC., ET AL., APPELLEES IN
BOTH CASES. 

BRIEFS OF AMICI CURIAE IN NO. 1121 WERE FILED BY JERRY S. COHEN,
HAROLD E. KOHN, AARON M. FINE, AND WILLIAM T. COLEMAN, JR., FOR THE
CITY OF BALTIMORE ET AL., BY JOHN H. LARSON FOR THE COUNTY OF LOS
ANGELES ET AL.; AND BY DAVID BERGER AND HERBERT B. NEWBERG FOR THE
COUNTY OF LACKAWANNA ET AL.
..END :










LONGSHOREMEN V. ARIADNE CO., 397 U.S. 195 


       INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1416,

           AFL-CIO V. ARIADNE SHIPPING CO., LTD., ET AL.

        CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA,
THIRD

           DISTRICT

        NO. 231.  ARGUED JANUARY 13, 1970-- DECIDED MARCH 9, 1970 


RESPONDENTS, A LIBERIAN CORPORATION AND A PANAMANIAN CORPORATION,
EMPLOYED FOREIGN CREWS TO OPERATE CRUISE SHIPS TO THE BARIBBEAN FROM
FLORIDA.  WHEN THE VESSELS BERTHED AT FLORIDA PORTS THE SHIPS' CREW IN
PART AND OUTSIDE LABOR IN PART PERFORMED THE LOADING, WHICH THE
PETITIONER UNION PICKETED, PROTESTING THAT THE LONGSHORE WORK WAS BEING
DONE AT SUBSTANDARD WAGE RATES.  RESPONDENTS OBTAINED INJUNCTIVE RELIED
AGAINST THE PICKETING FROM THE FLORIDA COURTS, WHICH HELD THAT THE
PICKETING WAS BEYOND THE JURISDICTION OF THE NATIONAL LABOR RELATIONS
BOARD (NLRB) AND COULD BE ENJOINED AS VIOLATIVE OF FLORIDA LAW.  HELD:
SINCE THIS DISPUTE CENTERED ON WAGES TO BE PAID AMERICAN LONGSHOREMEN
WORKING ON AMERICAN DOCKS AND DID NOT CONCERN THE SHIPS'"INTERNAL
DISCIPLINE AND ORDER," IT WAS NOT WITHIN THE SCOPE OF "MARITIME
OPERATIONS FOR FOREIGN-FLAG SHIPS," WHICH ARE OUTSIDE THE JURISDICTION
OF THE NLRB.  PETITIONER'S PEACEFUL PRIMARY PICKETING ARGUABLE
CONSTITUTED PROTECTED ACTIVITY UNDER SEC. 7 OF THE NATIONAL LABOR
RELATIONS ACT AND THUS THE NLRB'S JURISDICTION WAS EXCLUSIVE AND PRE
EMPTED THAT OF THE FLORIDA COURTS.  PP. 198-201. 

215 SO.2D 51, REVERSED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED HERE IS WHETHER THE NATIONAL LABOR RELATIONS
ACT, 49 STAT. 449, AS AMENDED, 29 U.S.C. 151 ET SEQ., PRE-EMPTS STATE
JURISDICTION TO ENJOIN PEACEFUL PICKETING PROTESTING SUBSTANDARD WAGES
PAID BY FOREIGN-FLAG VESSELS TO AMERICAN LONGSHOREMEN WORKING IN
AMERICAN PORTS.  THE FLORIDA COURTS HELD THAT THERE WAS NO PRE-EMPTION,
CITING MCCULLOCH V. SOCIEDAD NATIONAL, 372 U.S. 10 (1963), AND INCRES
STEAMSHIP CO. V. INTERNATIONAL MARITIME WORKERS UNION, 372 U.S. 24
(1963).  WE GRANTED CERTIORARI.  396 U.S. 814 (1969).  WE REVERSE. 

IN 1966 THE RESPONDENTS, A LIBERIAN CORPORATION AND A PANAMANIAN
CORPORATION, OPERATED CRUISE SHIPS TO THE CARIBBEAN FROM PORT
EVERGLADES AND MIAMI, FLORIDA.  RESPONDENT ARIADNE SHIPPING COMPANY
OPERATED THE S. S. ARIADNE, OF LIBERIAN REGISTRY, WITH A CREW SUBJECT
TO LIBERIAN SHIP'S ARTICLES.  RESPONDENT EVANGELINE STEAMSHIP COMPANY
OPERATED S. S. BAHAMA STAR, OF PANAMANIAN REGISTRY, WITH A CREW SUBJECT
TO PANAMANIAN SHIP'S ARTICLES.  THE UNCONTRADICTED EVIDENCE SHOWED THAT
"(LOADING OF THE SHIP, STOWAGE AND LOADING OF AUTOMOBILES, LOADING
CARGO AND SHIP STOWAGE," OCCURRED WHENEVER EITHER VESSEL BERTHED AT
PORT EVERGLADES OR MIAMI, "(PART OF IT (PERFORMED) BY EMPLOYEES OF THE
SHIP AND SOME OF IT BY OUTSIDE LABOR."  THE PETITIONER IS A LABOR
ORGANIZATION REPRESENTING LONGSHOREMEN IN THE MIAMI AREA.  ALTHOUGH
NONE OF THOSE DOING THE LONGSHORE WORK FOR THE SHIPS BELONGED TO THE
UNION, WHENEVER EITHER VESSEL DOCKED AT PORT EVERGLADES OR MIAMI IN
MAY, 1966, PETITIONER STATIONED A PICKET NEAR THE VESSEL TO PATROL WITH
A PLACARD PROTESTING THAT THE LONGSHORE WORK WAS BEING DONE UNDER
SUBSTANDARD WAGE CONDITIONS.  /1/  RESPONDENTS OBTAINED TEMPORARY
INJUNCTIVE RELIEF AGAINST THE PICKETING FROM THE CIRCUIT COURT FOR DADE
COUNTY.  /2/  THAT COURT REJECTED PETITIONER'S CONTENTION THAT THE
SUBJECT MATTER WAS PRE-EMPTED, HOLDING THAT UNDER MCCULLOCH THE
PICKETING WAS BEYOND THE REACH OF THE REGULATORY POWER OF THE NATIONAL
LABOR RELATIONS BOARD, AND HENCE COULD BE ENJOINED, SINCE IT VIOLATED
FLORIDA LAW.  THE TEMPORARY INJUNCTION WAS AFFIRMED BY THE DISTRICT
COURT OF APPEAL FOR THE THIRD DISTRICT OF FLORIDA IN A BRIEF PER CURIAM
ORDER CITING MCCULLOCH AND INCRES.  195 SO.2D 238 (1967).  THEREAFTER
THE CIRCUIT COURT, WITHOUT FURTHER . HEARING, MADE THE INJUNCTION
PERMANENT.  THE DISTRICT COURT OF APPEAL AGAIN AFFIRMED, ALTHOUGH
NOTING THAT THE TESTIMONY "TENDED TO SHOW"  THAT THE PICKETING WAS
CARRIED ON TO PROTEST AGAINST THE SUBSTANDARD WAGES PAID FOR THE
LONGSHORE WORK.  215 SO.2D 51, 53 (1968).  /3/  THE SUPREME COURT OF
FLORIDA DENIED REVIEW IN AN UNREPORTED ORDER. 

MCCULLOCH AND INCRES CONSTRUED THE NATIONAL LABOR RELATIONS ACT TO
PRECLUDE BOARD JURISDICTION OVER LABOR DISPUTES CONCERNING CERTAIN
MARITIME OPERATIONS OF FOREING-FLAG VESSELS.  SPECIFICALLY, INCRES, 372
U.S., AT 27, HELD THAT "MARITIME OPERATIONS OF FOREIGN-FLAG SHIPS
EMPLOYING ALIEN SEAMEN ARE NOT IN 'COMMERCE' WITHIN THE MEANING OF SEC.
2(6) (OF THE ACT)."  SEE ALSO BENZ V. COMPANIA NAVIERA HIDALGO, 353
U.S. 138 (1957).  THIS CONSTRUCTION OF THE STATUTE, HOWEVER, WAS
ADDRESSED TO SITUATIONS IN WHICH BOARD REGULATION OF THE LABOR
RELATIONS IN QUESTION WOULD NECESSITATE INQUIRY INTO THE "INTERNAL
DISCIPLINE AND ORDER" OF A FOREIGN VESSEL, AN INTERVENTION THOUGHT
LIKELY TO "RAISE CONSIDERABLE DISTURBANCE NOT ONLY IN THE FIELD OF
MARITIME LAW BUT IN OUR INTERNATION RELATIONS AS WELL."  MCCULLOCH, 372
U.S., AT 19. 

IN BENZ A FOREIGN-FLAG VESSEL TEMPORARILY IN AN AMERICAN PORT WAS
PICKETED BY AN AMERICAN SEAMEN'S UNION, SUPPORTING THE DEMANDS OF A
FOREIGN CREW FOR MORE FAVORABLE CONDITIONS THAN THOSE IN THE SHIP'S
ARTICLES WHICH THEY SIGNED UNDER FOREIGN LAW, UPON JOINING THE VESSEL
IN A FOREIGN PORT.  IN MCCULLOCH AN AMERICAN SEAMEN'S UNION PETITIONED
FOR A REPRESENTATION ELECTION AMONG THE FOREIGN CREW MEMBERS OF A
HONDURAN-FLAG VESSEL WHO WERE ALREADY REPRESENTED BY A HONDURAN UNION,
CERTIFIED UNDER HONDURAN LABOR LAW.  AGAIN, IN INCRES THE PICKETING WAS
BY AN AMERICAN UNION FORMED "FOR THE PRIMARY PURPOSE OF ORGANIZING
FOREIGN SEAMEN ON FOREIGN-FLAG VESSEL WHO WERE ALREADY REPRESENTED BY A
CASES, WE CONCLUDED THAT, SINCE THE ACT PRIMARILY CONCERNS STRIFE
BETWEEN AMERICAN EMPLOYERS AND EMPLOYEES, WE COULD REASONABLY EXPECT
CONGRESS TO HAVE STATED EXPRESSLY ANY INTENTION TO INCLUDE WITHIN ITS
COVERAGE DISPUTES BETWEEN FOREIGN SHIPS AND THEIR FOREIGN CREWS.  THUS
WE COULD NOT FIND SUCH AN INTENTION BY IMPLICATION, PARTICULARLY SINCE
TO DO SO WOULD THRUST THE NATIONAL LABOR RELATIONS BOARD INTO "A
DELICATE FIELD OF INTERNATIONAL RELATIONS," BENZ, 353 U.S.,AT 147. 
ASSERTION OF JURISDICTION BY THE BOARD OVER LABOR RELATIONS ALREADY
GOVERNED BY FOREIGN LAW MIGHT WELL PROVOKE "VIGOROUS PROTESTS FROM
FOREIGN GOVERNMENTS AND . . . INTERNATIONAL PROBLEMS FOR OUR
GOVERNMENT," MCCULLOCH, 372 U.S.,AT 17, AND "INVITE RETALIATORY ACTION
FROM OTHER NATIONS," ID., AT 21.  MOREOVER, TO CONSTRUE THE ACT TO
EMBRACE DISPUTES INVOLVING THE "INTERNAL DISCIPLINE AND ORDER" OF A
FOREIGN SHIP WOULD BE TO IMPUTE TO CONGRESS THE HIGHLY UNLIKELY
INTENTION OF DEPARTING FROM "THE WELL-ESTABLISHED RULE OF INTERNATIONAL
LAW THAT THE LAW OF THE FLAG STATE ORDINARILY GOVERNS THE INTERNAL
AFFAIRS OF A SHIP," A PRINCIPLE FREQUENTLY RECOGNIZED IN TREATIES WITH
OTHER COUNTRIES.  IBID. 

THE CONSIDERATIONS THAT INFORMED THE COURT'S CONSTRUCTION OF THE
STATUTE IN THE CASES ABOVE ARE CLEARLY INAPPLICABLE TO THE SITUATION
PRESENTED HERE.  THE PARTICIPATION OF SOME CREW MEMBERS IN THE
LONGSHORE WORK DOES NOT OBSCURE THE FACT THAT THIS DISPUTE CENTERED ON
THE WAGES TO BE PAID AMERICAN RESIDENTS, WHO WERE EMPLOYED BY EACH
FOREIGN SHIP NOT TO SERVE AS MEMBERS OF ITS CREW BUT RATHER TO DO
CASUAL LONGSHORE WORK.  THERE IS NO EVIDENCE THAT THESE OCCASIONAL
WORKERS WERE INVOLVED IN ANY INTERNAL AFFAIRS OF EITHER SHIP WHICH
WOULD BE GOVERNED BY FOREIGN LAW.  /4/  THEY WERE AMERICAN RESIDENTS,
HIRED TO WORK EXCLUSIVELY ON AMERICAN DOCKS AS LONGSHOREMEN, NOT AS
SEAMEN ON RESPONDENTS' VESSELS.  THE CRITICAL INQUIRY THEN IS WHETHER
THE LONGSHORE ACTIVITIES OF SUCH AMERICAN RESIDENTS WERE WITHIN THE
"MARITIME OPERATIONS OF FOREIGN-FLAG SHIPS" WHICH MCCULLOCH, INCRES,
AND BENZ FOUND TO BE BEYOND THE SCOPE OF THE ACT. 

WE HOLD THAT THEIR ACTIVITIES WERE NOT WITHIN THESE EXCLUDED
OPERATIONS.  THE AMERICAN LONGSHOREMEN'S SHORT-TERM, IRREGULAR AND
CASUAL CONNECTION WITH THE RESPECTIVE VESSELS PLAINLY BELIED ANY
INVOLVEMENT ON THEIR PART WITH THE SHIPS'"INTERNAL DISCIPLINE AND
ORDER."  APPLICATION OF UNITED STATES LAW TO RESOLVE A DISPUTE OVER THE
WAGES PAID THE MEN FOR THEIR LONGSHORE WORK, ACCORDINGLY, WOULD HAVE
THREATENED NO INTERFERENCE IN THE INTERNAL AFFAIRS OF FOREIGN-FLAG
SHIPS LIKELY TO LEAD TO CONFLICT WITH FOREIGN OR INTERNATIONAL LAW.  WE
THEREFORE FIND THAT THESE LONGSHORE OPERATIONS WERE IN "COMMERCE"
WITHIN THE MEANING OF SEC. 2(6), AND THUS MIGHT HAVE BEEN SUBJECT TO
THE REGULATORY POWER OF THE NATIONAL LABOR RELATIONS BOARD.  /5/ 

THE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD IS EXCLUSIVE
AND PRE-EMPTIVE AS TO ACTIVITIES THAT ARE "ARGUABLY SUBJECT" TO
REGULATION UNDER SEC. 7 OR SEC. 8 OF THE ACT.  SAN DIEGO BUILDING
TRADES COUNCIL V. GARMON, 359 U.S. 236, 245 (1959).  THE ACTIVITIES OF
PETITIONER IN THIS CASE MET THAT TEST.  THE UNION'S PEACEFUL PRIMARY
PICKETING TO PROTEST WAGE RATES BELOW ESTABLISHED AREA STANDARDS
ARGUABLY CONSTITUTED PROTECTED ACTIVITY UNDER SEC. 7.  SEE STEELWORKERS
V. NLRB, 376 U.S. 492, 498-499 (1964); GARNER V. TEAMSTERS UNION, 346
U.S. 485, 499-500 (1953). 

      REVERSED. 

/1/  A PICKET WAS ALSO STATIONED IN FRONT OF THE TERMINAL THROUGH
WHICH PASSENGERS EMBARKED AND DISEMBARKED.  THIS PICKET CARRIED A SIGN
ALLEGING THAT THE SHIPS WERE UNSAFE, AND PASSED OUT HANDBILLS TO THE
SAME EFFECT. 

/2/  THE INJUNCTIVE ORDER WAS IN FORU PARAGRAPHS.  PARAGRAPHS 1 AND
2 PROHIBITED PICKETING WITH SIGNS, OR DISTRIBUTING HANDBILLS STATING,
ALLEGING, OR INFERRING THAT THE VESSELS WERE UNSAFE.  THE PETITIONER
ABANDONED ITS APPEAL FROM THESE PROVISIONS AND THEY ARE NOT BEFORE US.
PARAGRAPH 4 WAS SET ASIDE ON APPEAL.  SEE N. 3, INFRA.  PARAGRAPH 3
THEREFORE IS THE ONLY PROVISION UNDER REVIEW IN THIS COURT.  IT
PROHIBITS PETITIONER FROM: "PICKETING OR PATROLLING WITH SIGNS OR
PLACARDS INDICATING OR INFERRING THAT A LABOR DISPUTE EXISTS BETWEEN
(RESPONDENTS) AND (PETITIONER), BY ANY STATEMENT, LEGEND OR LANGUAGE
ALLEGING (THAT RESPONDENTS) PAY THEIR EMPLOYEES SUBSTANDARD WAGES." 

INITIALLY PETITIONER DIRECTED THE PICKETING NOT AT RESPONDENTS'
SHIPS BUT AT EASTERN STEAMSHIP LINES, INC., A FLORIDA CORPORATION THAT
ACTED AS RESPONDENTS' GENREAL AGENT.  EASTERN OBTAINED A TEMPORARY
INJUNCTION, 193 SO.2D 73 (1966), WHEREUPON PETITIONER SHIFTED THE
PICKETING TO THE SHIPS THEMSELVES. 

/3/  THE COURT OF APPEAL SET ASIDE PARAGRAPH 4 OF THE INJUNCTION
WHICH PROHIBITED "(BY ANY MANNER OR BY ANY MEANS, INCLUDING PICKETING
OR THE DISTRIBUTION OF HANDBILLS, INDUCING OR ATTEMPTING TO INDUCE
CUSTOMERS AND POTENTIAL CUSTOMERS OF (RESPONDENTS) TO CEASE DOING
BUSINESS WITH (RESPONDENTS)."  215 SO.2D,AT 52 N. 1. 

/4/  WE PUT TO ONE SIDE SITUATIONS IN WHICH THE LONGSHORE WORK,
ALTHOUGH INVOLVING ACTIVITIES ON AN AMERICAN DOCK, IS CARRIED OUT
ENTIRELY BY A SHIP'S FOREIGN CREW, PURSUANT TO FOREIGN SHIP'S
ARTICLES. 

/5/  THE BOARD HAS REACHED THE SAME CONCLUSION IN SIMILAR
SITUATIONS.  SEE, E.G., INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S
UNION, LOCAL 13, 161 N.L.R.B. 451 (1966); MARINE COOKS & STEWARDS
UNION, 156 N.L.R.B. 753 (1966); NEW YORK SHIPPING ASSN., INC., 116
N.L.R.B. 1183 (1956).  CF. URAVIC V. JARKA CO., 282 U.S. 234 (1931). 

OUR CONCLUSION MAKES IT UNNECESSARY TO CONSIDER PETITIONER'S FURTHER
CONTENTION THAT IN THE ABSENCE OF ANY EVIDENCE OF AN ILLEGAL OBJECTIVE,
PROHIBITION OF PEACEFUL PICKETING TO PUBLICIZE SUBSTANDARD WAGES
DEPRIVED PETITIONER OF FREEDOM OF SPEECH IN VIOLATION OF THE FIRST AND
FOURTEENTH AMENDMENTS. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
STEWART JOIN, CONCURRING. 

I AGREE WITH THE MAJORITY THAT THE FLORIDA COURTS WERE IN ERROR IN
CONCLUDING THAT THE NATIONAL LABOR RELATIONS ACT DOES NOT GOVERN
RELATIONS BETWEEN THE OPERATORS OF FOREIGN-FLAG VESSELS AND THE
AMERICAN LONGSHOREMEN WHO WORK ON SUCH VESSELS WHILE THEY ARE IN
AMERICAN PORTS.  HOWEVER, I WOULD NOT REST REVERSAL ON THE CONCLUSION
THAT THE UNION'S CONDUCT IN THIS CASE WAS "'ARGUABLY SUBJECT' TO
REGULATION UNDER SEC. 7 OR SEC. 8 OF THE ACT."  THE UNION'S PICKETING
WAS CLEARLY NOT PROSCRIBED BY ANY PART OF SEC. 8 OF THE ACT.  THE ONLY
POSSIBLE DISPUTE COULD BE OVER WHETHER THE PICKETING WAS ACTIVITY
PROTECTED BY SEC. 7 OF THE ACT OR WHETHER THE PICKETING WAS NEITHER
PROTECTED NOR PROHIBITED BY THE ACT AND THEREFORE WAS SUBJECT TO STATE
REGULATION OR PROHIBITION.  IF THE NATIONAL LABOR RELATIONS ACT
PROVIDED AN EFFECTIVE MECHANISM WHEREBY AN EMPLOYER COULD OBTAIN A
DETERMINATION FROM THE NATIONAL LABOR RELATIONS BOARD AS TO WHETHER
PICKETING IS PROTECTED OR UNPROTECTED, I WOULD AGREE THAT THE FACT THAT
PICKETING IS "ARGUABLY" PROTECTED SHOULD REQUIRE STATE COURTS TO
REFRAIN FROM INTERFERING IN DEFERENCE TO THE EXPERTISE AND NATIONAL
UNIFORMITY OF TREATMENT OFFERED BY THE NLRB.  BUT AN EMPLOYER FACED
WITH "AGRUABLY PROTECTED" PICKETING IS GIVEN BY THE PRESENT FEDERAL LAW
NO ADEQUATE MEANS OF OBTAINING AN EVALUATION OF THE PICKETING BY THE
NLRB.  THE EMPLOYER MAY NOT HIMSELF SEEK A DETERMINATION FROM THE BOARD
AND IS LEFT WITH THE UNSATISFACTORY REMEDY OF USING "SELF HELP" AGAINST
THE PICKETS TO TRY TO PROVOKE THE UNION TO CHARGE THE EMPLOYER WITH AN
UNFAIR LABOR PRACTICE. 

SO LONG AS EMPLOYERS ARE EFFECTIVELY DENIED DETERMINATIONS BY THE
NLRB AS TO WHETHER "ARGUABLY PROTECTED" PICKETING IS ACTUALLY PROTECTED
EXCEPT WHEN AN EMPLOYER IS WILLING TO THREATEN OR USE FORCE TO DEAL
WITH PICKETING, I WOULD HOLD THAT ONLY LABOR ACTIVITY DETERMINED TO BE
ACTUALLY, RATHER THAN ARGUABLY, PROTECTED UNDER FEDERAL LAW SHOULD BE
IMMUNE FROM STATE JUDICIAL CONTROL.  TO THIS EXTENT SAN DIEGO BUILDING
TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959), SHOULD BE RECONSIDERED. 
I CONCUR IN THE COURT'S JUDGMENT IN THIS CASE BECAUSE IN MY VIEW THE
RECORD CLEARLY INDICATES THAT THE PEACEFUL, NONOBSTRUCTIVE PICKETING ON
THE PUBLIC DOCKS NEAR THE SHIPS WAS UNION ACTIVITY PROTECTED UNDER THE
NATIONAL LABOR RELATIONS ACT.  SEE GARNER V. TEAMSTERS UNION, 346 U.S.
485, 599-500 (1953). 

SEYMOUR M. WALDMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE LOUIS WALDMAN, MARTIN MARKSON, AND SEYMOUR A. GOPMAN. 

RICHARD M. LESLIE ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS THOMAS H. ANDERSON. 

SOLICITOR GENERAL GRISWOLD, ARNOLD ORDMAN, DOMINICK L. MANOLI, AND
NORTON J. COME FILED A MEMORANDUM FOR THE NATIONAL LABOR RELATIONS
BOARD AS AMICUS CURIAE. 
..END :

















UNITED STATES V. SECKINGER, 397 U.S. 203 


       UNITED STATES V. SECKINGER, TRADING AS M. O. SECKINGER CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 395.  ARGUED JANUARY 14, 1970-- DECIDED MARCH 9, 1970 


AN EMPLOYEE OF RESPONDENT CONTRACTOR WAS INJURED WHILE ENGAGING IN
WORK THAT RESPONDENT WAS PERFORMING FOR THE GOVERNMENT UNDER A FIXED
PRICE CONTRACT PROVIDING THAT THE PRIVATE CONTRACTOR "SHALL BE
RESPONSIBLE FOR ALL DAMAGES TO PERSONS OR PROPERTY THAT OCCUR AS A
RESULT OF HIS FAULT OR NEGLIGENCE . . . "  IN A SUIT AGAINST THE
GOVERNMENT UNDER THE FEDERAL TORT CLAIMS ACT THE EMPLOYEE WAS AWARDED
DAMAGES BASED UPON THE GOVERNMENT'S NEGLIGENCE.  THEREAFTER THE
GOVERNMENT BROUGHT THIS ACTION FOR INDEMNIFICATION, ALLEGING THAT THE
CONTRACTOR'S NEGLIGENCE WAS SOLELY RESPONSIBLE FOR THE EMPLOYEE'S
INJURIES.  THE DISTRICT COURT GRANTED RESPONDENT'S MOTION TO DISMISS,
IN PART ON THE GROUND, THEREAFTER SUSTAINED BY THE COURT OF APPEALS,
THAT THE CONTRACT CLAUSE WAS NOT BROAD ENOUGH TO PERMIT INDEMNIFICATION
OF THE GOVERNMENT FOR ITS OWN NEGLIGENCE, WHICH HAD SUBSTANTIALLY
CONTRIBUTED TO THE INJURY.  HELD:  THROUGH THE GOVERNMENT UNDER THE
CONTRACT CLAUSE INVOLVED HERE CANNOT RECOVER FOR ITS OWN NEGLIGENCE, IT
IS ENTITLED TO INDEMNITY ON A COMPARATIVE BASIS TO THE EXTENT THAT IT
CAN PROVE THAT RESPONDENT'S NEGLIGENCE CONTRIBUTED TO THE EMPLOYEE'S
INJURIES.  PP. 209-217. 

408 F.2D 146, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE CONSTRUCTION OF A PROVISION COMMON TO FIXED
PRICE GOVERNMENT CONSTRUCTION CONTRACTS THAT STATES THAT THE PRIVATE
CONTRACTOR "SHALL BE RESPONSIBLE FOR ALL DAMAGES TO PERSONS OR PROPERTY
THAT OCCUR AS A RESULT OF HIS FAULT OR NEGLIGENCE . . . . "  THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT HELD THAT THE PROVISION COULD NOT BE
CONSTRUED TO ALLOW THE GOVERNMENT TO RECOVER FROM THE CONTRACTOR
DAMAGES SUFFERED BY THE GOVERNMENT ON ACCOUNT OF ITS OWN NEGLIGENCE. 
408 F.2D 146 (1969).  WE GRANTED CERTIORARI BECAUSE OF THE LARGE AMOUNT
OF LITIGATION THAT THIS CONTRACT CLAUSE HAS PRODUCED /1/  AND BECAUSE
OF THE DIVERGENT RESULTS THAT THE LOWER COURTS HAVE REACHED IN
CONSTRUING THE SAME OR SIMILAR PROVISIONS.  /2/  396 U.S. 815 (1969). 
WE REVERSE. 

        I 

THE UNITED STATES HAD ENTERED INTO A CONTRACT WITH THE SECKINGER
COMPANY FOR THE PERFORMANCE OF CERTAIN PLUMBING WORK AT A UNITED STATES
MARINE BASE IN SOUTH CAROLINA.  WHILE WORKING ON THIS PROJECT, ONE OF
SECKINGER'S EMPLOYEES WAS DIRECTED BY HIS FOREMAN TO ASSIST A FELLOW
EMPLOYEE ON A PARTICULAR SECTION OF PIPE THAT HAD BEEN PARTIALLY
CONSTRUCTED ABOVE A STREET.  ABOUT FOUR OR FIVE FEET ABOVE THE PLACE
WHERE THE EMPLOYEE WAS WORKING, THERE WAS AN ELECTRIC WIRE THAT CARRIED
2,400 VOLTS OF ELECTRICITY.  THE EMPLOYEE ACCIDENTALLY CAME INTO
CONTACT WITH THE WIRE, WAS THROWN TO THE GROUND 18 FEET BELOW, AND WAS
SERIOUSLY INJURED. 

THE INJURED EMPLOYEE RECOVERED BENEFITS UNDER SOUTH CAROLINA'S
WORKMEN'S COMPENSATION LAW, S.C. CODE ANN. SECS. 72-1 TO 72-504 (1962),
AND THEN COMMENCED A SUIT IN THE EASTERN DISTRICT OF SOUTH CAROLINA
AGAINST THE UNITED STATES UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C.
2671-2680, ON THE THEORY THAT HIS INJURIES HAD BEEN SUSTAINED AS THE
PROXIMATE RESULT OF THE GOVERNMENT'S NEGLIGENCE.  THE UNITED STATES,
RELYING ON THE CONTRACT CLAUSE, MOVED TO IMPLEAD SECKINGER AS A THIRD
PARTY DEFENDANT.  THIS MOTION WAS DENIED ON THE GROUND THAT THE
ADDITION OF SECKINGER WOULD "UNNECESSARILY AND IMPROPERLY COMPLICATE
THE ISSUES."  /3/ 

ON THE MERITS, THE SOUTH CAROLINA DISTRICT COURT FOUND THAT THE
UNITED STATES HAD CUSTOMARILY DE-ENERGIZED ITS ELECTRIC WIRES WHENEVER
SECKINGER EMPLOYEES WERE REQUIRED TO WORK DANGEROUSLY NEAR THEM.  THE
COURT THEREFORE HELD THAT THE UNITED STATES HAD BEEN GROSSLY NEGLIGENT
IN FAILING TO DE-ENERGIZE THE WIRE IN THIS PARTICULAR CASE. 
ALTERNATIVELY, THE GOVERNMENT WAS HELD TO HAVE BEEN NEGLIGENT IN
FAILING TO ADVISE SECKINGER'S EMPLOYEES THAT THE ELECTRIC WIRE HAD NOT
BEEN DE-ENERGIZED.  CONCLUDING ALSO THAT THE EMPLOYEE HAD IN NO WAY
CONTRIBUTED TO HIS INJURY, THE DISTRICT JUDGE ORDERED THAT HE RECOVER A
JUDGMENT AGAINST THE UNITED STATES IN THE AMOUNT OF $45,000 PLUS
COSTS.  NO APPEAL WAS TAKEN FROM THIS JUDGMENT OF THE DISTRICT COURT. 
/4/ 

THEREAFTER, THE UNITED STATES PROCEEDED TO THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA AND COMMENCED THE INSTANT SUIT AGAINST
SECKINGER.  THE COMPLAINT ALLEGED THAT SECKINGER'S NEGLIGENCE WAS
SOLELY RESPONSIBLE FOR ITS EMPLOYEE'S INJURIES /5/  AND THAT THEREFORE
THE UNITED STATES SHOULD BE FULLY INDEMNIFIED FOR THE JUDGMENT WHICH IT
HAD SATISFIED.  IN A SECOND COUNT, THE GOVERNMENT ALLEGED THAT
SECKINGER, HAVING UNDERTAKEN TO PERFORM ITS CONTRACT WITH THE UNITED
STATES, WAS OBLIGATED "TO PERFORM THE WORK PROPERLY AND SAFELY AND TO
PROVIDE WORKMANLIKE SERVICE IN THE PERFORMANCE OF SAID WORK." 

THE DISTRICT COURT GRANTED SECKINGER'S MOTION TO DISMISS THE
COMPLAINT ON THE ALTERNATIVE GROUNDS, FIRST, THAT THE SUIT WAS BARRED
BY THE PRIOR LITIGATION IN SOUTH CAROLINA AND, SECOND, THAT THE
CONTRACTUAL LANGUAGE WAS NOT SUFFICIENTLY BROAD TO PERMIT THE
GOVERNMENT TO RECOVER INDEMNIFICATION FOR ITS OWN NEGLIGENCE.  THE
COURT OF APPEALS REJECTED THE FIRST GROUND OF DECISION, /6/  BUT
SUSTAINED THE HOLDING THAT ANY RECOVERY ON THE CONTRACT WAS FORECLOSED
TO THE UNITED STATES BECAUSE ITS NEGLIGENCE HAD CONTRIBUTED
SUBSTANTIALLY TO THE INJURY.  THE COURT OF APPEALS HELD THAT, UNDER THE
"MAJORITY RULE," AN INDEMNITEE CANNOT RECOVER FOR HIS OWN NEGLIGENCE IN
THE ABSENCE OF A CONTRACTUAL PROVISION WHICH UNMISTAKABLY AUTHORIZES
THIS RESULT.  SINCE THE CONTRACT HERE DID NOT UNEQUIVOCALLY COMMAND
THAT THE GOVERNMENT BE INDEMNIFIED FOR ITS OWN NEGLIGENCE, AND BECAUSE
THE INJURIES IN QUESTION WERE THOUGHT TO HAVE BEEN CAUSED BY THE
"ACTIVE DIRECT NEGLIGENCE" OF THE GOVERNMENT WITH NO MORE THAN A
"SLIGHT DERELICTION"  ON THE PART OF SECKINGER, NO RECOVERY WHATSOEVER
ON THE CONTRACT WOULD BE PERMITTED TO THE UNITED STATES.  /7/ 

IN THE GOVERNMENT'S VIEW, THIS CONSTRUCTION OF THE CLAUSE RENDERS IT
A NULLITY, FOR THE UNITED STATES CAN NEVER BE HELD LIABLE IN TORT UNDER
THE TORT CLAIMS ACT OR OTHERWISE IN THE ABSENCE OF NEGLIGENCE ON THE
PART OF ITS AGENTS.  THUS, SO THE ARGUMENT GOES, THE CONTRACTUAL
PROVISION IN QUESTION CAN HAVE MEANING ONLY IN A CONTEXT IN WHICH BOTH
THE UNITED STATES AND THE CONTRACTOR ARE JOINTLY NEGLIGENT.  /8/  IN
THAT CIRCUMSTANCE, THE CONTRACTOR WOULD BE OBLIGATED TO SUSTAIN THE
FULL BURDEN OF ULTIMATE LIABILITY FOR THE INJURIES PRODUCED. 
ALTERNATIVELY, THE GOVERNMENT SUGGESTS THAT IT IS ENTITLED TO INDEMNITY
ON A COMPARATIVE BASIS TO THE EXTENT THAT THE NEGLIGENCE OF SECKINGER
CONTRIBUTED TO ITS EMPLOYEE'S INJURIES. 

        II 

IN THE POSTURE IN WHICH THIS CASE REACHES US, THE HISTORICAL
BACKGROUND OF THE CLAUSE /9/  AND EVIDENCE CONCERNING THE ACTUAL
INTENTION OF THESE PARTICULAR PARTIES WITH RESPECT TO THAT PROVISION
ARE SPARSELY PRESENTED.  WE DO KNOW THAT THE CLAUSE WAS REQUIRED IN
GOVERNMENT FIXED-PRICE CONSTRUCTION CONTRACTS AS EARLY AS 1938.  /10/
THIS FACT MERELY PRECIPITATES CONFUSION, HOWEVER, BECAUSE IT WAS NOT
UNTIL THE PASSAGE OF THE TORT CLAIMS ACT IN 1946, SECS. 401-424, 60
STAT. 842, AS AMENDED, 28 U.S.C. 2671-2680, THAT THE UNITED STATES
PERMITTED RECOVERY IN TORT AGAINST ITSELF FOR THE NEGLIGENT ACTS OF ITS
AGENTS.  VIEWED IN THE PRE-TORT CLAIMS ACT CONTEXT, THE PURPOSE OF THE
CLAUSE IS TOTALLY UNCLEAR EXCEPT, PERHAPS, AS AN EXERCISE IN CAUTION ON
THE PART OF THE GOVERNMENT DRAFTSMEN, OR CONCEIVABLY, AS AN ATTEMPT TO
INSULATE GOVERNMENT AGENTS FROM LIABILITY IN THEIR PRIVATE CAPACITIES
IF THEIR NEGLIGENCE ARGUABLY COMBINED WITH THAT OF THE CONTRACTOR TO
PRODUCE A GIVEN INJURY. 

IN AMERICAN STEVEDORES, INC. V. PORELLO, 330 U.S. 446 (1947), WE HAD
BEFORE US A CONTRACTUAL PROVISION THAT WAS SIMILAR TO THAT INVOLVED
HERE.  THERE WE NOTED THAT THE CLAUSE WAS SUSCEPTIBLE OF SEVERAL
DIFFERENT CONSTRUCTIONS, 330 U.S.,AT 457-458, AND REMANDED THE CASE TO
THE DISTRICT COURT TO ASCERTAIN THE INTENTION OF THE PARTIES WITH
RESPECT TO THE CLAUSE.  IT DOES NOT APPEAR THAT A SIMILAR COURSE OF
ACTION WOULD BE FRUITFUL IN THE INSTANT CASE.  IN PORELLO THERE WERE
CLEAR INDICATIONS FROM THE PARTIES THAT FURTHER EVIDENTIARY PROCEEDINGS
IN THE DISTRICT COURT WOULD SHED LIGHT ON THE ACTUAL INTENTION OF THE
PARTIES.  /11/  HERE, BY CONTRAST, THERE IS NOT ONLY NO REPRESENTATION
THAT FURTHER PROCEEDINGS WOULD AID IN CLARIFYING THE INTENTIONS OF THE
PARTIES, BUT THERE IS AT LEAST TACIT AGREEMENT THAT THE BACKGROUND OF
THE CLAUSE HAS BEEN EXPLORED AS THOROUGHLY AS POSSIBLE.  IN THESE
CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO PROCEED DIRECTLY TO THE
CONTRACTUAL CONSTRUCTION PROBLEM. 

        III 

PRELIMINARILY, WE AGREE WITH THE COURT OF APPEALS THAT FEDERAL LAW
CONTROLS THE INTERPRETATION OF THE CONTRACT.  SEE UNITED STATES V.
COUNTY OF ALLEGHENY, 322 U.S. 174, 183 (1944); /12/  CLEARFIELD TRUST
CO. V. UNITED STATES, 318 U.S. 363 (1943).  THIS CONCLUSION RESULTS
FROM THE FACT THAT THE CONTRACT WAS ENTERED INTO PURSUANT TO AUTHORITY
CONFERRED BY FEDERAL STATUTE AND, ULTIMATELY, BY THE CONSTITUTION. 
/13/ 

IN FASHIONING A FEDERAL RULE WE ARE, OF COURSE, GUIDED BY THE
GENERAL PRINCIPLES THAT HAVE EVOLVED CONCERNING THE INTERPRETATION OF
CONTRACTUAL PROVISIONS SUCH AS THAT INVOLVED HERE.  AMONG THESE
PRINCIPLES IS THE GENERAL MAXIM THAT A CONTRACT SHOULD BE CONSTRUED
MOST STRONGLY AGAINST THE DRAFTER, WHICH IN THIS CASE WAS THE UNITED
STATES.  /14/  THE GOVERNMENT SEEKS TO CIRCUMVENT THIS PRINCIPLE BY
ARGUING THAT IT IS INAPPLICABLE UNLESS THERE IS AMBIGUITY IN THE
CONTRACTUAL PROVISIONS IN DISPUTE AND THERE EXISTS AN ALTERNATIVE
INTERPRETATION THAT IS, "UNDER ALL CIRCUMSTANCES, A REASONABLE AND
PRACTICAL ONE."  GELCO BUILDERS & BURJAY CONST. CO. V. UNITED STATES,
177 CT.CL. 1025, 1035, 369 F.2D 992, 000-1000 (1966).  THE GOVERNMENT
ITSELF, HOWEVER, HAS PROFFERED TWO MUTUALLY INCONSISTENT
INTERPRETATIONS OF THE CONTRACT CLAUSE.  TO BE SURE, ONE OF THEM IS
PRESSED WITH CONSIDERABLY MORE ENTHUSIASM THAN THE OTHER.  THE
GOVERNMENT, NEVERTHELESS, MUST BE TAKEN IMPLICITYLY TO HAVE CONCEDED
(A) THAT THE CLAUSE IS NOT WITHOUT AMBIGUITY AND (B) THAT THERE IS AN
ALTERNATIVE CONSTRUCTION OF THE CLAUSE THAT IS BOTH "REASONABLE AND
PRACTICAL."  EVEN IN THE GOVERNMENT'S VIEW OF THE MATTER, THEREFORE,
THERE IS NECESSARILY ROOM FOR THE CONSTRUCTION-AGAINST-DRAFTER
PRINCIPLE TO OPERATE. 

MORE SPECIFICALLY, WE AGREE WITH THE COURT OF APPEALS THAT A
CONTRACTUAL PROVISION SHOULD NOT BE CONSTRUED TO PERMIT AN INDEMNITEE
TO RECOVER FOR HIS OWN NEGLIGENCE UNLESS THE COURT IS FIRMLY CONVINCED
THAT SUCH AN INTERPRETATION REFLECTS THE INTENTION OF THE PARTIES. 
THIS PRINCIPLE, THOUGH VARIOUSLY ARTICULATED, IS ACCEPTED WITH VIRTUAL
UNINIMITY AMONG AMERICAN JURISDICTIONS.  /15/  THE TRADITIONAL
RELUCTANCE OF COURTS TO CAST THE BURDEN OF NEGLIGENT ACTIONS UPON THOSE
WHO WERE NOT ACTUALLY AT FAULT /16/  IS PARTICULARLY APPLICABLE TO A
SITUATION IN WHICH THERE IS A VAST DISPARITY IN BARGAINING POWER AND
ECONOMIC RESOURCES BETWEEN THE PARTIES, SUCH AS EXISTS BETWEEN THE
UNITED STATES AND PARTICULAR GOVERNMENT CONTRACTORS.  SEE UNITED STATES
V. HASKIN, 395 F.2D 503, 508 (C.A. 10TH CIR. 1968). 

IN SHORT, IF THE UNITED STATES EXPECTS TO SHIFT THE ULTIMATE
RESPONSIBILITY FOR ITS NEGLIGENCE TO ITS VARIOUS CONTRACTORS, THE
MUTUAL INTENTION OF THE PARTIES TO THIS EFFECT WHOULD APPEAR WITH
CLARITY FROM THE FACE OF THE CONTRACT.  WE CAN HARDLY SAY THAT THIS
INTENTION IS MANIFESTED BY THE FORMULATION INCORPORATED INTO THE
PRESENT CONTRACT.  /17/  BY ITS TERMS SECKINGER IS CLEARLY LIABLE FOR
ITS NEGLIGENCE, BUT THE CONTRACTUAL LANGUAGE CANNOT READILY BE
STRETCHED TO ENCOMPASS THE GOVERNMENT'S NEGLIGENCE AS WELL.  /18/ 

ON THE OTHER HAND, WE MUST NOT FAIL TO ACCORD APPROPRIATE
CONSIDERATION TO SECKINGER'S CLEAR LIABILITY UNDER THE CONTRACT FOR
"ALL DAMAGES" THAT RESULTED FROM ITS "FAULT OR NEGLIGENCE."  THE VIEW
ADOPTED BY THE COURT OF APPEALS, AND NOW URGED BY SECKINGER, WOULD
DRAIN THIS CLAUSE OF ANY SIGNIFICANT MEANING OR PROTECTION FOR THE
GOVERNMENT, AND, INDEED, WOULD TEND TO INSULATE SECKINGER FROM
POTENTIAL LIABILITY IN ANY CIRCUMSTANCE IN WHICH ANY NEGLIGENCE IS ALSO
ATTRIBUTABLE TO THE UNITED STATES.  WHATEVER MAY HAVE BEEN THE ACTUAL
INTENTION OF THE PARTIES WITH RESPECT TO THE MEANING OF THE CLAUSE, IT
IS EXTREMELY DIFFICULT TO BELIEVE THAT THEY SOUGHT TO UTILIZE THIS
CONTRACTUAL PROVISION TO REDUCE SECKINGER'S POTENTIAL LIABILITY UNDER
COMMON LAW OR STATUTORY RULES OF CONTRIBUTION OR INDEMNITY.  /19/  YET,
THAT IS ARGUABLY THE RESULT IF THE CLAUSE IS INTERPRETED TO MEAN THAT
SECKINGER'S LIABILITY IS LIMITED TO SITUATIONS IN WHICH IT, AS OPPOSED
TO THE UNITED STATES, IS THE SOLE NEGLIGENT PARTY. 

FURTHERMORE, IN THIS LATTER SITUATION, IT IS PERFECTLY CLEAR THAT,
BOTH BEFORE AND AFTER THE PASSAGE OF THE TORT CLAIMS ACT, THE UNITED
STATES COULD NOT, IN ANY EVENT, BE CHARGED WITH LIABILITY IN THE
ABSENCE OF NEGLIGENCE ON ITS PART.  IN SHORT, THE CONSTRUCTION OF THE
CLAUSE ADOPTED BY THE COURT OF APPEALS TENDS TO NARROW SECKINGER'S
POTENTIAL LIABILITY AND, ALSO, LIMITS ITS APPLICATION TO CIRCUMSTANCES
IN WHICH NO DOUBT CONCERNING SECKINGER'S SOLE LIABILITY EXISTED.  IN
THE PROCESS, CONSIDERABLE VIOLENCE IS DONE TO THE PLAIN LANGUAGE OF THE
CONTRACT THAT SECKINGER BE RESPONSIBLE FOR ALL DAMAGES RESULTING FROM
ITS NEGLIGENCE. 

A SYNTHESIS OF ALL OF THE FOREGOING CONSIDERATIONS LEADS TO THE
CONCLUSION THAT MOST REASONABLE CONSTRUCTION OF THE CLAUSE IS THE
ALTERNATIVE SUGGESTION OF THE GOVERNMENT, THAT IS, THAT LIABILITY BE
PREMISED ON THE BASIS OF COMPARATIVE NEGLIGENCE.  /20/  IN THE FIRST
PLACE, THIS INTERPRETATION IS CONSISTENT WITH THE PLAIN LANGUAGE OF THE
CLAUSE, FOR SECKINGER WILL BE REQUIRED TO INDEMNIFY THE UNITED STATES
TO THE FULL EXTENT THAT ITS NEGLIGENCE, IF ANY, CONTRIBUTED TO THE
INJURIES TO THE EMPLOYEE. 

SECONDLY, THE PRINCIPLE THAT INDEMNIFICATION FOR THE INDEMNITEE'S
OWN NEGLIGENCE MUST BE CLEARLY AND UNEQUIVOCALLY INDICATED AS THE
INTENTION OF THE PARTIES IS PRESERVED INTACT.  IN NO EVENT WILL
SECKINGER BE REQUIRED TO INDEMNIFY THE UNITED STATES TO THE EXTENT THAT
THE INJURIES WERE ATTRIBUTABLE TO THE NEGLIGENCE, IF ANY, OF THE UNITED
STATES.  IN SHORT, SECKINGER WILL BE RESPONSIBLE FOR THE DAMAGES CAUSED
BY ITS NEGLIGENCE; SIMILARLY, RESPONSIBILITY WILL FALL UPON THE UNITED
STATES TO THE EXTENT THAT IT WAS NEGLIGENT.     FINALLY, OUR
INTERPRETATION ADHERES TO THE PRINCIPLE THAT, AS BETWEEN TWO REASONABLE
AND PRACTICAL CONSTRUCTIONS OF AN AMBIGUOUS CONTRACTUAL PROVISION, SUCH
AS THE TWO PROFFERED BY THE GOVERNMENT, THE PROVISION SHOULD BE
CONSTRUED LESS FAVORABLY TO THAT PARTY WHICH SELECTED THE CONTRACTUAL
LANGUAGE.  THIS PRINCIPLE IS APPROPRIATELY ACCORDED CONSIDERABLE
EMPHASIS IN THIS CASE BECAUSE OF THE GOVERNMENT'S VAST ECONOMIC
RESOURCES AND STRONGER BARGAINING POSITION IN CONTRACT NEGOTIATIONS. 
/21/ 

FOR THESE REASONS, WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS
AND REMAND THIS CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  /22/

              REVERSED AND REMANDED. 

/1/  IN THE PETITION FOR CERTIORARI, THE SOLICITOR GENERAL ADVISED
THAT THERE ARE PRESENTLY PENDING 200 GOVERNMENT SUITS INVOLVING THE
SAME OR SIMILAR CLAUSES. 

/2/  COMPARE, E.G., FISHER V. UNITED STATES, 299 F.SUPP.  1
(D.C.E.D. PA. 1969), AND UNITED STATES V. ACCROCCO, 297 F.SUPP.  966
(D.C.D.C. 1969), WITH E.G., THE DECISION OF THE COURT OF APPEALS IN THE
INSTANT CASE. 

/3/  THE THIRD-PARTY COMPLAINT WAS THEREFORE DISMISSED "WITH LEAVE
TO . . . THE UNITED STATES . . . TO TAKE SUCH FURTHER ACTION AT AN
APPROPRIATE TIME."  THE ORDER WAS NOT APPEALED, AND WE IMPLY NO VIEW
CONCERNING THE PROPRIETY OF THE DISTRICT COURT'S ACTION. 

/4/  THE DISTRICT COURT CONCLUDED, INTER ALIA, THAT THE NEGLIGENCE
OF THE UNITED STATES WAS THE "SOLE CAUSE" OF THE EMPLOYEE'S INJURIES. 
WE DO NOT PAUSE TO CONSIDER WHAT EFFECT, IF ANY, UNDER ALL THE
CIRCUMSTANCES OF THIS CASE, THE SOUTH CAROLINA JUDGMENT COULD PROPERLY
HAVE IN THE INSTANT CASE.  THE EFFECT OF THE PRIOR JUDGMENT WAS NOT
RAISED BELOW EXCEPT AS A DEFENSE CONTENTION THAT IT CONSTITUTED AN
ABSOLUTE BAR TO THE INSTANT PROCEEDINGS. 

/5/  SPECIFICALLY, THE UNITED STATES ALLEGED THAT SECKINGER WAS
NEGLIGENT IN THAT IT (1) FAILED TO REQUEST THAT THE POWER DISTRIBUTION
LINE BE DE-ENERGIZED; (2) FAILED TO REQUEST THAT THE WIRES AT THE PLACE
WHERE THE ACCIDENT OCCURRED BE INSULATED; (3) FAILED TO PROVIDE SAFETY
INSULATION ON THE WIRES; (4) PERMITTED, AND IN FACT DIRECTED, THE
SUBSEQUENTLY INJURED EMPLOYEE TO WORK IN CLOSE PROXIMITY TO THE WIRES;
AND (5) FAILED TO PREVENT THE EMPLOYEE FROM PROCEEDING IN A MANNER THAT
WAS DANGEROUS AND THAT CAUSED HIM TO BE INJURED. 

/6/  THE COURT OF APPEALS HELD THAT THE GOVERNMENT'S SUIT WAS NOT
BARRED BY PRINCIPLES OF RES JUDICATA BECAUSE THE SOUTH CAROLINA
DISTRICT COURT EXPRESSLY LEFT OPEN THE OPTION OF THE UNITED STATES TO
PURSUE ITS CLAIM AGAINST SECKINGER AT A LATER TIME.  WE AGREE WITH THIS
CONCLUSION OF THE COURT OF APPEALS. 

/7/  IN THE PRESENT STATE OF THE RECORD, WE NEITHER ACCEPT NOR
REJECT THIS CHARACTERIZATION OF THE RELATIVE DEGREES OF FAULT OF
SECKINGER AND THE UNITED STATES. 

/8/  THE GOVERNMENT, THEREFORE, DOES NOT TAKE ISSUE WITH THOSE
AUTHORITIES THAT EXHIBIT RELUCTANCE TO PERMIT A NEGLIGENT INDEMNITEE TO
RECOVER FROM A FAULTLESS INDEMNITOR UNLESS THIS INTENTION APPEARED WITH
PARTICULAR CLARITY FROM THE CONTRACT.  SEE, E.G., ASSOCIATED ENGINEERS,
INC. V. JOB, 370 F.2D 633, 651 (C.A. 8TH CIR. 1966), CERT. DENIED SUB
NOM.  TROY CANNON CONST. CO. V. JOB, 389 U.S. 823 (1967). 

/9/  IN CONTEXT, THE CLAUSE IN QUESTION APPEARS AS FOLLOWS: 

"11.  PERMITS AND RESPONSIBILITY FOR WORK, ETC. 

"THE CONTRACTOR SHALL, WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT,
OBTAIN ALL LICENSES AND PERMITS REQUIRED FOR THE PROSECUTION OF THE
WORK.  HE SHALL BE RESPONSIBLE FOR ALL DAMAGES TO PERSONS OR PROPERTY
THAT OCCUR AS A RESULT OF HIS FAULT OR NEGLIGENCE IN CONNECTION WITH
THE PROSECUTION OF THE WORK.  HE SHALL ALSO BE RESPONSIBLE FOR ALL
MATERIALS DELIVERED AND WORK PERFORMED UNTIL COMPLETION AND FINAL
ACCEPTANCE, EXCEPT FOR ANY COMPLETED UNIT THEREOF WHICH THERETOFORE MAY
HAVE BEEN FINALLY ACCEPTED." 

/10/  SEE, E.G., 41 CFR 11.1, 11.3, 12.23, ART. 10 (1938). 

/11/  THE OBJECTIVE OF THE REMAND WAS FRUSTRATED WHEN NO ADDITIONAL
EVIDENCE WAS PRESENTED TO THE DISTRICT COURT.  THAT COURT MERELY
ADHERED TO THE CONSTRUCTION OF THE CONTRACT THAT HAD BEEN ADOPTED BY
THE COURT OF APPEALS, 153 F.2D 605 (C.A.2D CIR. 1946), NAMELY, THAT THE
UNITED STATES WAS ENTITLED TO FULL INDEMNITY FROM A STEVEDORING
CONTRACTOR ALTHOUGH BOTH THE UNITED STATES AND THE CONTRACTOR WERE
FOUND TO HAVE BEEN NEGLIGENT.  PORELLO V. UNITED STATES, 94 F.SUPP. 
952 (D.C.S.D.N.Y. 1950). 

/12/  "THE VALIDITY AND CONSTRUCTION OF CONTRACTS THROUGH WHICH THE
UNITED STATES IS EXERCISING ITS CONSTITUTIONAL FUNCTIONS, THEIR
CONSEQUENCES ON THE RIGHTS AND OBLIGATIONS OF THE PARTIES, THE TITLES
OR LIENS WHICH THEY CREATE OR PERMIT, ALL PRESENT QUESTIONS OF FEDERAL
LAW NOT CONTROLLED BY THE LAW OF ANY STATE."  322 U.S.,AT 183. 

/13/  CONGRESS HAS PROVIDED EXTENSIVE ARRANGEMENTS FOR THE
PROCUREMENT, MANAGEMENT, AND DISPOSAL OF GOVERNMENT PROPERTY.  SEE
GENERALLY 40 U.S.C. 471-535 (1964 ED. AND SUPP. IV).  AS PART OF THIS
STATUTORY SCHEME, THE ADMINISTRATOR OF GENERAL SERCIVES IS AUTHORIZED
TO ISSUE REGULATIONS NECESSARY TO PERFORM HIS VARIOUS MANAGERIAL
FUNCTIONS.  40 U.S.C. 486(C).  PURSUANT TO THIS AUTHORITY, VARIOUS FORM
CONTRACTS, ONE OF WHICH INCLUDES THE PROVISION THAT IS THE SUBJECT OF
THIS SUIT, HAVE BEEN PROMULGATED FOR OFFICIAL USE.  41 CFR 1-16.401 TO
1-16.404, 1-16.901-23A, ART. 12 (1969).  SEE GENERALLY STATE BAR OF CA
CALIFORNIA, COMMITTEE ON CONTINUING EDUCATION OF THE BAR, GOVERNMENT
CONTRACTS PRACTICE SEC. 13.93 (1964). 

/14/  SEE, E.G., STERNBERGER V. UNITED STATES, 185 CT.CL. 528, 543,
401 F.2D 1012, 1021 (1968); SUN SHIPBUILDING & DRYDOCK CO. V. UNITED
STATES, 183 CT.CL. 358, 372, 393 F.2D 807, 816 (1968); JONES V. UNITED
STATES, 304 F.SUPP.  94, 103 (D.C.S.D.N.Y. 1969). 

/15/  A NUMBER OF COURTS TAKE THE VIEW, FREQUENTLY IN A CONTEXT IN
WHICH THE INDEMNITEE WAS SOLELY OR PRINCIPALLY RESPONSIBLE FOR THE
DAMAGES, THAT THERE CAN BE INDEMNIFICATION FOR THE INDEMNITEE'S
NEGLIGENCE ONLY IF THIS INTENTION IS EXPLICITLY STATED IN THE
CONTRACT.  SEE, E.G., FREED V. GREAT A. & P. TEA CO., 401 F.2D 266
(C.A. 6TH CIR. 1968) (INTENTION OF PARTIES MUST BE "CLEAR AN
UNAMBIGUOUS"  NECESSITATING A CLAUSE SUCH AS "INCLUDING DAMAGE FROM
INDEMNITEE'S OWN NEGLIGENCE"); BROGDON V. SOUTHERN R. CO., 384 F.2D 220
(C.A. 6TH CIR. 1967) (SAME); CITY OF BEAUMONT V. GRAHAM, 441 S.W.2D 829
(TEX. 1969) (INDEMNITOR'S PROMISE TO INDEMNIFY FOR HIS NEGLIGENT ACTS
DOES NOT EXTEND TO INDEMNIFICATION FOR INDEMNITEE'S NEGLIGENCE); YOUNG
V. ANACONDA AMERICAN BRASS CO., 43 WIS.2D 36, 168 N.W.2D 112 (1969)
(INDEMNITOR NOT LIABLE FOR SUCH PORTION OF TOTAL LIABILITY ATTRIBUTABLE
TO ACT OF INDEMNITEE UNLESS INDEMNITY CONTRACT BY EXPRESS PROVISION AND
STRICT CONSTRUCTION SO PROVIDES); CASES COLLECTED IN ANNOT., 175 A.L.R.
8, 29-38 (1948). 

OTHER CASES DO NOT REQUIRE THAT INDEMNIFICATION FOR THE INDEMNITEE'S
NEGLIGENCE BE SPECIFICALLY OR EXPRESSLY STATED IN THE CONTRACT IF THIS
INTENTION OTHERWISE APPEARS WITH CLARITY.  SEE, E.G., AUTO OWNERS MUT.
INS. CO. V. NORTHERN IND. PUB. SERV. CO., 414 F.2D 192 (C.A. 7TH CIR.
1969); EASTERN GAS & FUEL ASSOCIATES V. MIDWEST-RALEIGH, INC., 374 F.2D
451 (C.A. 4TH CIR. 1967); UNITEC CORP. V. BEATTY SAFWAY SCAFFOLD CO.,
358 F.2D 470 (C.A. 9TH CIR. 1966); BASTON-COOK CO. V. INDUSTRIAL STEEL
ERECTORS, 257 F.2D 410 (C.A. 5TH CIR. 1958). 

/16/  SEVERAL EARLIER CASES DECLARED CLAUSES THAT PURPORTED TO
INDEMNIFY FOR THE INDEMNITEE'S NEGLIGENCE VOID AS CONTRARY TO PUBLIC
POLICY.  SEE, E.G., STERNAMAN V. METROPOLITAN LIFE INS. CO., 170 N.Y.
13, 62 N.E. 763 (1902); JOHNSON'S ADMINISTRATRIX V. RICHMOND & D.R.
CO., 86 VA. 975, 11 S.E. 829 (1890).  SEE ALSO BISSO V. INLAND
WATERWAYS CORP., 349 U.S. 85 (1955); OTIS ELEVATOR CO. V. MARYLAND CAS.
CO., 95 COLO. 99, 33 P.2D 974 (1934). 

/17/  AN EXAMPLE OF AN INDEMNIFICATION CLAUSE THAT MAKES SPECIFIC
REFERENCE TO THE EFFECT OF THE NEGLIGENCE OF THE INDEMNITEE IS THE
FOLLOWING RECOMMENDATION OF THE AMERICAN INSTITUTE OF ARCHITECTS: 

"4.18.  INDEMNIFICATION 

"4.18.1.  THE CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS THE OWNER
AND THE ARCHITECT AND THEIR AGENTS AND EMPLOYEES FROM AND AGAINST ALL
CLAIMS, DAMAGES, LOSSES AND EXPENSES INCLUDING ATTORNEYS' FEES ARISING
OUT OF OR RESULTING FROM THE PERFORMANCE OF THE WORK, PROVIDED THAT ANY
SUCH CLAIM, DAMAGE, LOSS OR EXPENSE (A) IS ATTRIBUTABLE TO BODILY
INJURY, SICKNESS, DISEASE OR DEATH, OR TO INJURY TO OR DESTRUCTION OF
TANGIBLE PROPERTY (OTHER THAN THE WORK ITSELF) INCLUDING THE LOSS OF
USE RESULTING THEREFROM, AND (B) IS CAUSED IN WHOLE OR IN PART BY ANY
NEGLIGENT ACT OR OMISSION OF THE CONTRACTOR, ANY SUBCONTRACTOR, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM OR ANYONE FOR WHOSE ACTS
ANY OF THEM MAY BE LIABLE, REGARDLESS OF WHETHER OR NOT IT IS CAUSED IN
PART BY A PARTY INDEMNIFIED HEREUNDER."  AIA DOCUMENT A 201, SEPT.
1967. 

WE SPECIFICALLY DECLINE TO HOLD THAT A CLAUSE THAT IS INTENDED TO
ENCOMPASS INDEMNIFICATION FOR THE INDEMNITEE'S NEGLIGENCE MUST INCLUDE
AN "INDEMNIFY AND HOLD HARMLESS" CLAUSE OR THAT IT MUST EXPLICITLY
STATE THAT INDEMNIFICATION EXTENDS TO INJURIES OCCASIONED BY THE
INDEMNITEE'S NEGLIGENCE.  THUS, CONTRARY TO THE VIEW APPARENTLY ADOPTED
IN THE DISSENTING OPINION, WE ASSIGN NO TALISMANIC SIGNIFICANCE TO THE
ABSENCE OF A "HOLD HARMLESS" CLAUSE.  OUR APPROACH IS, IN THIS RESPECT,
CONSISTENT WITH AMERICAN STEVEDORES, INC. V. PORELLO, 330 U.S.,AT 457
458.  CONTRACT INTERPRETATION IS LARGELY AN INDIVIDUALIZED PROCESS,
WITH THE CONCLUSION IN A PARTICULAR CASE TURNING ON THE PARTICULAR
LANGUAGE USED AGAINST THE BACKGROUND OF OTHER INDICIA OF THE PARTIES'
INTENTION.  CONSEQUENTLY, WE HOLD ONLY THAT, IN THIS CASE, THE CLAUSE
THAT PROVIDES THAT SECKINGER WILL BE RESPONSIBLE FOR ALL DAMAGES
RESULTING FROM ITS NEGLIGENCE IS INSUFFICIENTLY BROAD TO ENCOMPASS
RESPONSIBILITY FOR INJURIES RESULTING FROM THE NEGLIGENCE OF THE
GOVERNMENT.  AND, OF COURSE, THE GOVERNMENT IS ENTITLED TO NO RECOVERY
UNLESS IT ESTABLISHES THAT SECKINGER WAS NEGLIGENT.  THUS THE
DISSENTING OPINION MISCHARACTERIZES THE SCOPE OF OUR HOLDING WHEN IT
STATES THAT SECKINGER MUST "REIMBURSE THE GOVERNMENT FOR LOSSES IT
INCURS RESULTING FROM ITS NEGLIGENCE." 

/18/  SEE, E.G., UNITED STATES V. HASKIN, 395 F.2D 503 (C.A. 10TH
CIR. 1968); BROGDON V. SOUTHERN R. CO., 384 F.2D 220 (C.A. 6TH CIR.
1967); SHAMROCK TOWING CO. V. CITY OF NEW YORK, 16 F.2D 199 (C.A. 2D
CIR. 1926); WILLIAMS V. MIDLAND CONSTRUCTORS, 221 F.SUPP.  400
(D.C.E.D. ARK. 1963); CITY OF BEAUMONT V. GRAHAM, 441 S.W.2D 829 (TEX.
1969); YOUNG V. ANACONDA AMERICAN BRASS CO., 43 WIS.2D 36, 168 N.W.2D
112 (1969). 

/19/  AN EMPLOYER'S LIABILITY FOR INJURIES SUFFERED BY HIS EMPLOYEES
TO WHICH HIS NEGLIGENCE PARTIALLY CONTRIBUTED VARIES FROM JURISDICTION
TO JURISDICTION.  IN THE ABSENCE OF WORKMEN'S COMPENSATION STATUTES,
THE EMPLOYER AND THE THIRD-PARTY TORTFEASOR WOULD BE JOINTLY AND
SEVERALLY LIABLE, UNDER TRADITIONAL PRINCIPLES, FOR THE INJURIES
PRODUCED.  IN A MAJORITY OF JURISDICTIONS, CONTRIBUTION ON INDEMNITY IS
AVAILABLE EITHER BY STATUTE OR COMMON LAW, AS A DEVICE FOR THE
REDISTRIBUTION OF THE BURDEN AMONG THE JOINT TORTFEASORS.  SEE
GENERALLY W. PROSSER, LAW OF TORTS SECS. 47, 48 (3D ED. 1964).  IN
1956, WHEN SECKINGER'S EMPLOYEE WAS INJURED, SOUTH CAROLINA LAW WAS
UNCLEAR IN THIS RESPECT, APPARENTLY PERMITTING CONTRIBUTION OR
INDEMNITY UNDER SOME CIRCUMSTANCES.  SEE GENERALLY COMMENT, INDEMNITY
AMONG JOINT TORT-FEASORS-- AS AFFECTED BY THE FEDERAL EMPLOYERS
LIABILITY ACT, 17 S.C.L.REV.  423 (1965). 

WORKMEN'S COMPENSATION PROVISIONS, NOW ENACTED IN ALL STATES, HAVE
CONSIDERABLE EFFECT ON THE EMPLOYER'S POTENTIAL LIABILITY TO THE THIRD
PARTY TORTFEASOR.  HOWEVER, THESE STATUTES VARY GREATLY IN THE
CATEGORIES OF EMPLOYERS AND EMPLOYEES TO WHICH THEY APPLY, SEE
GENERALLY, A. REEDE, ADEQUACY OF WORKMEN'S COMPENSATION (1947), AND
EVEN TODAY ABOUT TWO-THIRDS OF THE STATUTES PROVIDE THAT COVERAGE IS
VOLUNTARY AS TO BOTH EMPLOYERS AND EMPLOYEES.  2 A.LARSON, THE LAW OF
WORKMEN'S COMPENSATION 67.10 (1969). 

WHEN A WORKMEN'S COMPENSATION PLAN DOES COVER PARTICULAR EMPLOYERS
AND EMPLOYEES, A THIRD-PARTY SUIT AGAINST AN EMPLOYER WHO WAS ALSO
NEGLIGENT IS BARRED BY THE MAJORITY RULE, ALTHOUGH RECOVERY IS NOT
INFREQUENTLY PERMITTED ON IMPLIED OR QUASI-CONTRACTUAL THEORIES.  SEE,
E.G., ASSOCIATED ENGINEERS, INC. V. JOB, 370 F.2D 633, 651 (-C.A. 8TH
CIR. 1966); 2 A. LARSON, SUPRA. 76.00-76.53.  WHETHER SUCH A SUIT IS
PERMITTED UNDER SOUTH CAROLINA LAW APPARENTLY HAS NOT BEEN
AUTHORITATIVELY DETERMINED.  SEE GENERALLY BURNS V. CAROLINA POWER &
LIGHT CO., 88 F.SUPP.  769 (D.C.E.D.S.C. 1950). 

/20/  A NUMBER OF COURTS HAVE REACHED COMPARABLE RESULTS.  SEE,
E.G., BROGDON V. SOUTHERN R. CO., 384 F.2D 220 (C.A. 6TH CIR. 1967);
WILLIAMS V. MIDLAND CONSTRUCTORS, 221 F.SUPP.  400 (D.C.E.D. ARK.
1963); C & L RURAL ELEC.  COOP.  CORP. V. KINCAID, 221 ARK. 450, 256
S.W.2D 337 (1953), AFTER REMAND, 227 ARK. 321, 299 S.W.2D 67 (1957);
YOUNG V. ANACONDA AMERICAN BRASS CO., 43 WIS.2D 36, 168 N.W.2D 112
(1969).  SEE ALSO UNITED STATES V. HASKIN, 395 F.2D 503 (C.A. 10TH CIR.
1968); SHAMROCK TOWING CO. V. CITY OF NEW YORK, 16 F.2D 199 (C.A. 2D
CIR. 1926). 

/21/  WHILE IT IS TRUE THAT THE INTERPRETATION ADOPTED BY THE COURT
OF APPEALS IS EVEN LESS FAVORABLE TO THE GOVERNMENT THAN THAT WHICH WE
ADOPT, WE HAVE CONCLUDED, FOR REASONS PREVIOUSLY STATED, THAT THE COURT
OF APPEALS' VIEW WOULD DRAIN THE CLAUSE OF ANY SIGNIFICANT MEANING AND
IS DECIDEDLY CONTRARY TO ITS PLAIN LANGUAGE. 

A 1941 LETTER FROM THE COMPTROLLER GENERAL, 21 COMP.GEN.  149,
RELIED UPON IN DISSENT, SHEDS NO LIGHT WHATEVER ON THE PROBLEM OF
CONTRACT CONSTRUCTION BEFORE US.  THERE THE COMPTROLLER GENERAL, IN
COMMENTING UPON A QUESTION THAT HE SAID WAS "OF FIRST IMPRESSION"
SUGGESTED THAT, UNDER SOME CIRCUMSTANCES, A CONTRACTOR UNDER A COST
PLUS-FIXED-FEE CONTRACT MAY SEEK REIMBURSEMENT FROM THE GOVERNMENT, AS
AN ELEMENT OF HIS ACTUAL COSTS, FOR DAMAGES THAT HE SUSTAINED BY REASON
OF HIS NEGLIGENCE.  SINCE THE CONTRACT CLAUSE IN QUESTION WAS
INTRODUCED LONG BEFORE THE 1941 LETTER, IT OBVIOUSLY WAS NOT RESPONSIVE
TO ANY ISSUES RAISED BY THE COMPTROLLER.  MOREOVER, WE DEAL IN THIS
CASE WITH A FIXED-PRICE CONSTRUCTION CONTRACT, A TYPE OF CONTRACT WITH
WHICH THE COMPTROLLER GENERAL WAS IN NO WAY CONCERNED.  THUS, NO
SUPPORT IS PROVIDED FOR THE FACILE ASSUMPTION OF THE DISSENT THAT,
MERELY BECAUSE A COST-PLUS CONTRACTOR MAY ARGUABLY SEEK REIMBURSEMENT
FOR ADDITIONAL COSTS PRODUCED BY HIS OWN NEGLIGENCE, IT FOLLOWS THAT A
CONTRACTOR COMMITTED TO COMPLETE A PROJECT FOR A FIXED PRICE ALSO MAY
SEEK REIMBURSEMENT BECAUSE OF DAMAGE CAUSED BY HIS OWN NEGLIGENT ACTS. 

WE AGREE WITH THE DISSENTING OPINION THAT THE CONTRACT CLAUSE DOES
MEAN EXACTLY WHAT IT SAYS.  WHAT IT SAYS IS THAT SECKINGER SHALL BE
"RESPONSIBLE FOR ALL DAMAGES" ARISING FROM ITS NEGLIGENCE, THAT IS,
THAT THE BURDEN OF SECKINGER'S NEGLIGENCE MAY NOT BE SHIFTED TO THE
UNITED STATES.  TO BE SURE, THE CLAUSE BARS ANY ATTEMPT BY SECKINGER TO
OBTAIN REIMBURSEMENT FROM THE GOVERNEMNT FOR SECKINGER'S NEGLIGENCE. 
BUT AN INTERPRETATION THAT LIMITED THE OPERATION OF THE CLAUSE TO THIS
NARROW SITUATION WOULD CONSTITUTE AN IMPERMISSIBLE FRUSTRATION OF THE
CONTRACTUAL SCHEME, FOR SUCH A CONSTRUCTION WOULD SHIFT THE BURDEN OF
SECKINGER'S NEGLIGENCE TO THE UNITED STATES THROUGH THE MEDIUM OF A
RECOVERY AGAINST THE GOVERNMENT BY THE INJURED EMPLOYEE.  THE
CONTRACTUAL OBJECTIVE-- THAT LIABILITY FOR THE CONTRACTOR'S NEGLIGENCE
NOT BE SHIFTED TO THE UNITED STATES-- CAN BE ACHIEVED IN CASES OF
CONCURRENT NEGLIGENCE WHEN THERE HAS BEEN A PRIOR RECOVERY AGAINST THE
GOVERNMENT ONLY BY RESORT TO THE COMPARATIVE NEGLIGENCE ANALYSIS THAT
WE HAVE ADOPTED, WHICH REQUIRES SECKINGER TO INDEMNIFY THE GOVERNMENT,
BUT ONLY TO THE EXTENT THAT THE GOVERNMENT WAS CALLED UPON, IN THE
FIRST INSTANCE, TO RESPOND IN DAMAGES AS A RESULT OF SECKINGER'S
NEGLIGENCE. 

/22/  BECAUSE WE HAVE TAKEN THE VIEW THAT THE RIGHTS AND LIABILITIES
OF SECKINGER AND THE UNITED STATES INTER SE ARE GOVERNED BY CONTRACT,
WE NEED NOT REACH THE GOVERNMENT'S ALTERNATIVE THEORY, REJECTED BY THE
COURT OF APPEALS, THAT SECKINGER BREACHED AN IMPLIED WARRANTY OF
WORKMANLIKE SERVICE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

THE STANDARD FORM THAT THE GOVERNMENT USES FOR ITS FIXED-PRICE
CONSTRUCTION CONTRACTS HAS LONG CONTAINED A SINGLE SENTENCE BY SAYING
THAT THE CONTRACTOR "SHALL BE RESPONSIBLE FOR ALL DAMAGES TO PERSONS OR
PROPERTY THAT OCCUR AS A RESULT OF HIS FAULT OR NEGLIGENCE IN
CONNECTION WITH THE PROSECUTION OF THE WORK."  /1/  FOR MORE THAN 30
YEARS IT HAS EVIDENTLY BEEN UNDERSTOOD THAT THESE WORDS MEAN WHAT THEY
RATHER CLEARLY SAY-- THAT THE CONTRACTOR CANNOT HOLD THE GOVERNMENT FOR
LOSSES HE INCURS RESULTING FROM HIS OWN NEGLIGENCE.  /2/  THE
PROVISION, IN SHORT, IS WHAT THE COURT OF APPEALS CALLED "A SIMPLE
RESPONSIBILITY CLAUSE."  408 F.2D 146, 148.  /3/  BUT TODAY THIS
INNOCUOUS BOILERPLATE LANGUAGE IS TURNED INSIDE OUT.  FOR THE COURT
SAYS THAT THE PROVISION REALLY IS A PROMISE BY THE CONTRACTOR TO
REIMBURSE THE GOVERNMENT FOR LOSSES IT INCURS RESULTING FROM ITS
NEGLIGENCE. 

TO BE SURE, THE COURT DOES NOT GO QUITE SO FAR AS TO HOLD THAT THIS
OBSCURE CLAUSE OPERATES AS A COMPLETE LIABILITY INSURANCE POLICY.  BUT
THE COURT DOES HOLD THAT THE CLAUSE REQUIRES THE CONTRACTOR TO
INDEMNIFY THE GOVERNMENT "TO THE FULL EXTENT THAT ITS NEGLIGENCE, IF
ANY, CONTRIBUTED TO THE INJURIES TO THE EMPLOYEE."  THE MAGNITUDE OF
THE BURDEN THE COURT IMPOSES IS WELL ILLUSTRATED BY THE CIRCUMSTANCES
OF THIS CASE.  HERE AN EMPLOYEE OF THE CONTRACTOR WAS INJURED IN THE
SCOPE OF HIS EMPLOYMENT ON PLUMBING WORK THAT THE CONTRACTOR WAS
PERFORMING AT THE PARIS ISLAND MARINE DEPOT IN SOUTH CAROLINA.  THE
EMPLOYEE RECOVERED FROM THE CONTRACTOR THE BENEFITS TO WHICH HE WAS
ENTITLED UNDER THE STATE WORKMEN'S COMPENSATION LAW.  THE EMPLOYEE THEN
SUED THE GOVERNMENT UNDER THE FEDERAL TORT CLAIMS ACT, CLAIMING THAT
HIS INJURIES HAD ACTUALLY BEEN CUASED BY THE GOVERNMENT'S NEGLIGENCE. 
THE FEDERAL DISTRICT COURT AGREED, FINDING THAT THE NEGLIGENCE OF THE
UNITED STATES WAS THE "SOLE CAUSE" OF THE EMPLOYEE'S INJURIES AND
AWARDING HIM $45,000 IN DAMAGES.  THE COURT TODAY SAYS THAT THE UNITED
STATES CAN NOW RECOVER AN INDETERMINATE PORTION OF THIS $45,000 FROM
THE CONTRACTOR, BECAUSE THE CONTRACTOR HAS AGREED TO "INDEMNIFY THE
UNITED STATES . . . . " 

DESPITE INTIMATIONS IN THE COURT'S OPINION TO THE CONTRARY, WE DO
NOT DEAL HERE WITH "COMMON LAW OR STATUTORY RULES OF CONTRIBUTION OR
INDEMNITY."  /4/  THE ONLY QUESTION THE COURT DECIDES IS THE MEANING OF
THE WORDS OF A CLAUSE IN A GOVERNMENT CONTRACT.  /5/  I THINK THE
MEANING ATTRIBUTED TO THAT CLAUSE TODAY IS AN UNCONSCIONABLE AS IT IS
INACCURATE. 

THE CLAUSE FIRST APPEARED IN GOVERNMENT CONTRACTS AT LEAST EIGHT
YEARS BEFORE THE ENACTMENT OF THE FEDERAL TORT CLAIMS ACT IN 1946. 
BEFORE THE PASSAGE OF THAT ACT THE UNITED STATES COULD NOT BE SUED IN
TORT FOR PERSONAL INJURIES.  THUS THERE WAS ABSOLUTELY NO REASON FOR
THE GOVERNMENT TO SECURE FOR ITSELF A RIGHT TO RECOVERY OVER AGAINST AN
ALLEGED JOINT TORTFEASOR.  YET WE ARE ASKED TO BELIEVE THAT THE DRAFTER
OF THIS CLAUSE WAS SO PRESCIENT AS TO FORESEE THE DAY OF GOVERNMENT
TORT LIABILITY NEARLY A DECADE IN THE FUTURE, AND SO INGENIOUS AS TO
SMUGGLE A PROVISION INTO A STANDARD CONTRACT FORM THAT WOULD, WHEN THAT
DAY ARRIVED, ALLOW THE GOVERNMENT TO SHIFT ITS LIABILTY ONTO THE BACKS
OF ITS CONTRACTORS.  THIS THEORY IS NOTHING SHORT OF INCREDIBLE. 

IN DRAFTING ITS CONSTRUCTION CONTRACTS THE UNITED STATES CERTAINLY
HAS BOTH THE POWER AND THE RESOURCES TO WRITE ITS CONTRACTORS, EITHER
IN WHOLE OR IN PART, LIABILITY IT INCURS FOR DAMAGES CAUSED BY ITS OWN
JUDICIALLY DETERMINED NEGLIGENCE.  THE GOVERNMENT COULD REQUIRE ITS
CONTRACTORS TO HOLD IT HARMLESS WITHOUT REGARD TO FAULT ON THEIR PART,
OR IT COULD ESTABLISH A PRORATION OF LIABILITY ARISING FROM THE JOINT
NEGLIGENCE OF THE PARTIES.  BUT ARISING FROM THE JOINT NEGLIGENCE OF
THE PARTIES.  BUT THE CONTRACTUAL PROVISION BEFORE US DOES NEITHER.  IT
NO MORE SAYS THAT THE CONTRACTOR SHALL REIMBURSE THE GOVERNMENT FOR HIS
SHARE OF JOINT NEGLIGENCE THAN THAT HE SHALL BE A LIABILITY INSURER FOR
THE GOVERNMENT'S SOLE NEGLIGENCE. 

THE COURT NONETHELESS MANAGES TO DISCOVER THAT THE CLAUSE AMOUNTS TO
A CONTRIBUTION AGREEMENT, RELYING FOR ITS CONCLUSION UPON CASES
INVOLVING, NOT THE SIMPLE RESPONSIBILITY CLAUSE BEFORE US, BUT EXPRESS
INDEMNIFICATION AGREEMENTS WITH "HOLD HARMLESS" CLAUSES.  /6/  THIS
RESULT IS SAID TO BE DESIRABLE BECAUSE IT ENSURES A FAIR DISTRIBUTION
OF LOSS BETWEEN THOSE JOINTLY RESPONSIBLE FOR THE DAMAGE.  BUT WHEN
SECKINGER ENTERED INTO THIS CONTRACT, IT HAD EVERY REASON TO EXPECT
THAT ITS LIABILITY FOR INJURIES TO ITS EMPLOYEES WOULD BE LIMITED TO
WHAT IS IMPOSED BY THE SOUTH CAROLINA COMPENSATION LAW.  THAT LAW
RELIEVED IT OF RESPONSIBILITY IN TORT IN EXCHANGE FOR ITS GUARANTEE
THAT ITS EMPLOYEES WOULD RECOVER WITHOUT REGARD TO FAULT.  PRESUMABLY
ITS BID ON THE GOVERNMENT PROJECT REFLECTED ITS REASONABLE EXPECTATION
THAT THIS WOULD BE THE EXTENT OF ITS LIABILITY ON ACCOUNT OF EMPLOYEE
ACCIDENTS.  NOW THE COURT HEAPS AN UNFORESEEN FEDERAL CONTRACTUAL
BURDEN ATOP THE REQUIREMENT THE STATE HAS ALREADY IMPOSED.  /7/ 

IF THE GOVERNMENT WANTS TO IMPOSE ADDITIONAL LIABILITIES UPON THOSE
WITH WHOM IT CONTRACTS TO DO ITS WORK, I WOULD REQUIRE IT TO DO SO
OPENLY, SO THAT EVERY BIDDER MAY CLEARLY KNOW THE EXTENT OF HIS
POTENTIAL LIABILITY.  EEN IN THE DOMAIN OF PRIVATE CONTRACT LAW, THE
AUTHOR OF A STANDARD-FORM AGREEMENT IS REQUIRED TO STATE ITS TERMS WITH
CLARITY AND CANDOR.  /8/  SURELY NO LESS IS REQUIRED OF THE UNITED
STATES OF AMERICA WHEN IT DOES BUSINESS WITH ITS CITIZENS.  /9/ 

MR. JUSTICE HOLMES ONCE SAID THAT "(MEN MUST TURN SQUARE CORNERS
WHEN THEY DEAL WITH THE GOVERNMENT."  /10/  I HAD ALWAYS SUPPOSED THIS
WAS A TWO-WAY STREET.  THE GOVERNMENT KNOWS HOW TO WRITE AN
INDEMNIFICATION OR CONTRIBUTION CLAUSE WHEN THAT IS WHAT IT WANTS.  IT
HAS NOT WRITTEN ONE HERE. 

I WOULD AFFIRM THE JUDGMENT. 

/1/  THIS SENTENCE IS CONTAINED IN A PARAGRAPH ENTITLED "PERMITS AND
RESPONSIBILITY FOR WORK, ETC."  SEE ANTE, AT 208 N. 9. 

/2/  I HAVE FOUND NO PREVIOUS REPORTED DECISION CONSTRUING THIS
CLAUSE AS THE COURT CONSTRUES IT TODAY. 

/3/ IT WILL NOT DO TO SAY, AS THE COURT SAYS TODAY, THAT THIS
CONSTRUCTION OF THE CLAUSE MAKES ITS PURPOSE "TOTALLY UNCLEAR" OR
"WOULD DRAIN THIS CLAUSE OF ANY SIGNIFICANT MEANING OR PROTECTION FOR
THE GOVERNMENT . . . . "  FOR WITHOUT SUCH A CLAUSE, THERE WOULD SURELY
BE ROOM FOR THE CONTRACTOR TO CLAIM REIMBURSEMENT FROM THE GOVERNMENT
FOR UNFORESEEN INCREASED COSTS INCURRED ON ACCOUNT OF HIS NEGLIGENCE,
PARTICULARLY WHERE THE GOVERNMENT WAS JOINTLY NEGLIGENT.  WITH RESPECT
TO CONTRACTS NOT CONTAINING SUCH A CLAUSE-- COST-PLUS CONTRACTS, FOR
EXAMPLE-- THE COMPTROLLER GENERAL ADVISED THE SECRETARY OF WAR ALMOST
30 YEARS AGO THAT THE GOVERNMENT MAY, INDEED, BE LIABLE TO THE
CONTRACTOR UNDER SUCH CIRCUMSTANCES.  SEE 21 COMP.GEN.  149, 156-157
(1941). 

/4/  UNDER THE LAW OF SOUTH CAROLINA-- WHICH DETERMINES THE
GOVERNMENT'S LIABILITY IN TORT TO THE INJURED EMPLOYEE, 28 U.S.C.
1346(B); RICHARDS V. UNITED STATES, 369 U.S. 1-- THE GENERAL RULE IS
THAT THERE IS NO RIGHT TO CONTRIBUTION AMONG JOINT TORTFEASORS. 
ATLANTIC COAST LINE R. CO. V. WHETSTONE, 243 S.C. 61, 68-70, 132 S.E.2D
172, 175-176.  MOREOVER, SINCE THE INJURED EMPLOYEE HAS ACCEPTED HIS
AWARD AGAINST SECKINGER UNDER THE STATE WORKMEN'S COMPENSATION STATUTE,
HE CANNOT HOLD SECKINGER IN TORT.  S.C. CODE ANN. SECS. 72-121, 72-123
(1962); ADAMS V. DAVISON-PAXON CO., 230 S.C. 532, 545, 96 S.E.2D 566,
572-573.  SO SECKINGER CAN HARDLY BE CAST IN THE ROLE OF A TORTFEASOR
IN ANY EVENT. 

/5/  THE COURT'S CONCLUSION THAT THE COURT OF APPEALS' CONSTRUCTION
OF THE CLAUSE MIGHT "REDUCE SECKINGER'S POTENTIAL LIABILITY UNDER
COMMON LAW OR STATUTORY RULES OF CONTRIBUTION OR INDEMNITY" SEEMS
WHOLLY INCORRECT.  THE CONTRACTOR'S AGREEMENT NOT TO SEEK REIMBURSEMENT
OR CONTRIBUTION FROM THE GOVERNMENT WOULD HAVE NO BEARING UPON THE
QUESTION WHETHER LOCAL "COMMON LAW OR STATUTORY RULES OF CONTRIBUTION
AND INDEMNITY" GIVE THE GOVERNMENT ANY RIGHT TO RECOVER FROM THE
CONTRACTOR. 

/6/  THESE CASES ARE CITED IN THE COURT'S OPINION, ANTE, AT 215 N.
20. 

/7/  UNDER SOUTH CAROLINA LAW SECKINGER HAS BEEN SUBROGATED TO ITS
INJURED EMPLOYEE'S CLAIM AGAINST THE UNITED STATES TO THE EXTENT OF ITS
OWN COMPENSATION PAYMENT.  S.C. CODE ANN. SEC. 72-124 (1962).  BUT THE
COURT TODAY SUBJECTS SECKINGER TO THE INCREMENTAL RISK OF LIABILITY IN
CONTRIBUTION, IN A YET-TO-BE-DETERMINED PROPORTION, FOR THE EMPLOYEE'S
ADDED RECOVERY IN HIS TORT SUIT AGAINST THE GOVERNMENT. 

/8/  E.G., CHRYSLER CORP. V. HANOVER INS. CO., 350 F.2D 652, 655;
RIESS V. MURCHISON, 329 F.2D 635, 642; RESTATEMENT OF CONTRACTS SEC.
235(E); 3 A.CORBIN ON CONTRACTS 559 (1960). 

/9/  STERNBERGER V. UNITED STATES, 185 CT.CL. 528, 543, 401 F.2D
1012, 1021; JONES V. UNITED STATES, 304 F.SUPP.  94, 101. 

/10/  ROCK ISLAND, A. & L.R. CO. V. UNITED STATES, 254 U.S. 141,
143. 

JAMES VAN R. SPRINGER ARGUED THE CAUSE FOR THE UNITED STATES.  ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
RUCKELSHAUS, PETER L. STRAUSS, AND ROBERT V. ZENER. 

JOHN G. KENNEDY ARGUED THE CUASE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS FRANK S. CHEATHAM, JR.
..END :






















TAGGART V. WEINACKER'S, INC., 397 U.S. 223 


       TAGGART ET AL V. WEINACKER'S, INC.

        CERTIORARI TO THE SUPREME COURT OF ALABAMA

        NO. 74.  ARGUED JANUARY 12, 1970-- DECIDED MARCH 9, 1970 


FOLLOWING THE ISSUANCE OF AN INJUNCTION ENJOINING PETITIONERS, WHO
WERE PICKETING ON THE NARROW SIDEWALK ADJACENT TO THE DOORWAY OF
RESPONDENT'S STORE, FROM TRESPASSING AND INTERFERING WITH THE RIGHT OF
INGRESS AND EGRESS, RESPONDENT CEASED OPERATING ITS BUSINESS AND LEASED
THE PREMISES TO OTHER STORE OPERATORS.  THE ALABAMA SUPREME COURT,
WHICH AFFIRMED THE INJUNCTION, FOUND THAT THE PICKETING "OBSTRUCTED
CUSTOMERS USING THE ENTRANCES TO THE STORE," BASED ON AFFIDAVITS FILED
BY RESPONDENT, PETITIONERS NOT HAVING FILED COUNTER-AFFIDAVITS.  HELD:
IN LIGHT OF THE OBSCURE RECORD, THE PHYSICAL CIRCUMSTANCES OF THE
NARROW SIDEWALK, AND THE STATE COURTS' FINDING OF CUSTOMER OBSTRUCTION,
TOGETHER WITH THE FACT THAT ONLY A BARE REMNANT OF THE ORIGINAL
CONTROVERSY STILL EXISTS, THE WRIT OF CERTIORARI IS DISMISSED AS
IMPROVIDENTLY GRANTED. 

283 ALA. 171, 214 SO.2D 913, CERTIORARI DISMISSED AS IMPROVIDENTLY
GRANTED. 

PER CURIAM. 

THE COMPLAINT IN THIS CASE WAS FILED JANUARY 21, 1965, AND THE STATE
COURT ISSUED A TEMPORARY INJUNCTION ON JANUARY 22, 1965.  AFTER HEARING
THE STATE COURT ON APRIL 1, 1965, DENIED PETITIONERS'  MOTION TO
DISSOLVE THE TEMPORARY INJUNCTION AND CONTINUED IT IN EFFECT.  ON APRIL
9, 1965, AN APPEAL WAS TAKEN TO THE SUPREME COURT OF ALABAMA.  OVER
THREE YEARS LATER, ON SEPTEMBER 19, 1968, THAT COURT ENTERED A JUDGMENT
OF AFFIRMANCE.  THE PETITION FOR CERTIORARI WAS FILED HERE ON MARCH 28,
1969, AND GRANTED ON OCTOBER 13, 1969.  396 U.S. 813. 

AT THE TIME THE APPEAL WAS TAKEN TO THE SUPREME COURT OF ALABAMA,
RESPONDENT OPERATED A RETAIL GROCERY AND DRUG BUSINESS ON THE PREMISES
THAT PETITIONERS PICKETED.  LATE IN 1966, WHILE THE APPEAL WAS PENDING
IN THE SUPREME COURT OF ALABAMA, RESPONDENT CEASED TO OPERATE THE
GROCERY AND DRUG BUSINESS, LEASING PART OF THE SPACE TO DELCHAMPS,
INC., FOR A RETAIL GROCERY STORE, AND PART TO WALGREEN'S, INC., FOR A
RETAIL DRUG STORE.  RESPONDENT CONTINUES TO OWN THE LAND AND THE
BUILDING.  THE INJUNCTION ENJOINS PETITONERS FROM "TRESPASSING UPON THE
PROPERTY OF THE COMPLAINANT AND FROM FURTHER INTERFERING WITH THE
COMPLAINT'S PROPERTY AND RIGHT OF INGRESS AND EGRESS TO THE
COMPLAINANT'S PROPERTY AND PLACE OF BUSINESS, UNTIL THE FURTHER ORDERS
OF THIS COURT." 

WHILE THE CHANGED CIRCUMSTANCES DO NOT NECESSARILY MAKE THE
CONTROVERSY MOOT, THEY ARE SUCH THAT, IF KNOWN AT THE TIME THE PETITION
FOR A WRIT OF CERTIORARI WAS ACTED UPON, WE WOULD NOT HAVE GRANTED IT.
FOR SUCH SMALL EMBERS OF CONTROVERSY THAT MAY REMAIN DO NOT PRESENT THE
THREAT OF GRAVE STATE-FEDERAL CONFLICT THAT WE NEED SIT TO RESOLVE. 

IN THIS CONNECTION ONE OTHER CIRCUMSTANCE SHOULD BE NOTED.  THE
ALABAMA SUPREME COURT FOUND THAT THIS PICKETING "OBSTRUCTED CUSTOMERS
USING THE ENTRANCES TO THE STORE."  PETITIONERS COMPLAIN (A) THAT NO
EVIDENTIARY HEARING TO RESOLVE THAT FACTUAL QUESTION WAS EVER HELD; (B)
THAT IT RESTS SOLELY ON CONCLUSORY AFFIDAVITS; (C) THAT THAT IS A
FUNDAMENTALLY INFIRM PROCEDURE FOR HANDLING FACTS IN THE AREA OF THE
FIRST AMENDMENT; AND (D) THAT IF THERE WERE OBSTRUCTION THE REMEDY IS
ENJOINING THE OBSTRUCTION, NOT PICKETING GENERALLY.  YET THIS PAHSE OF
THE CASE IS OVERSHADOWED BY THE SPECIAL FACTS OF THE CASE AS THEY WERE
FINALLY CLARIFIED ON ORAL ARGUMENT.  THE PICKETING STARTED ON THE
PUBLIC SIDEWALKS AROUND RESPONDENT'S PREMISES WHICH ARE REMOVED FROM
RESPONDENT'S STORE BY A PARKING LOT; BUT IT SOON WAS TRANSFERRED TO A
SIDEWALK OWNED AND MAINTAINED BY RESPONDENT, A SIDEWALK FROM 4 FEET TO
5.5 FEET WIDE AND ADJACENT TO THE DOOR OF THE STORE WHERE THE PICKETING
TOOK PLACE.  EVEN IF UNDER FOOD EMPLOYEES V. LOGAN VALLEY PLAZA, 391
U.S. 308, THE UNION HAD A FIRST AMENDMENT RIGHT TO PICKET ON THE
PROPERTY INVOLVED IN THIS CASE, A MATTER THAT WE NEED TO DECIDE, IN
FINAL ANALYSIS WE WOULD COME DOWN TO WHETHER, IN LIGHT OF THE PHYSICAL
CIRCUMSTANCES OF THIS NARROW SIDEWALK AT THE STORE ENTRANCE, THE
FOLLOWING RULING IN LOGAN VALLEY, 391 U.S.,AT 320-321, IS APPLICABLE: 

"(THE EXERCISE OF FIRST AMENDMENT RIGHTS MAY BE REGULATED WHERE SUCH
EXERCISE WILL UNDULY INTERFERE WITH THE NORMAL USE OF THE PUBLIC
PROPERTY BY OTHER MEMBERS OF THE PUBLIC WITH AN EQUAL RIGHT OF ACCESS
TO IT." 

WHILE THE FINDING OF OBSTRUCTION WAS BASED ON AFFIDAVITS FILED BY
RESPONDENT, PETITIONERS, THOUGH THEY HAD THE RIGHT UNDER ALABAMA
PROCEDURE TO DO SO, ALA. CODE, TIT. 7, SEC. 1055 (1958), FILED NO
COUNTER-AFFIDAVITS PRIOR TO ISSUANCE OF THE TEMPORARY INJUNCTION.  /1/
NOR DID THEY, AS WAS THEIR RIGHT UNDER TIT. 7, SEC. 1061, OF THE
ALABAMA CODE, SUBMIT ANY SUCH AFFIDAVITS ON THE HEARING TO DISSOLVE THE
INJUNCTION.  /2/  THEY DID, HOWEVER, DENY IN THEIR MOTION TO DISSOLVE
THAT THEY WERE "OBSTRUCTING CUSTOMERS FROM LEAVING OR ENTERING"
RESPONDENT'S PLACE OF BUSINESS.  BUT THE ONLY EVIDENCE BEFORE THE
ALABAMA COURTS ON THE ISSUE OF OBSTRUCTION WAS IN RESPONDENT'S
AFFIDAVITS.  THAT ISSUE WAS CRITICAL, IN LIGHT OF THE PHYSICAL
CIRCUMSTANCES CONCERNING THE NARROW SIDEWALK IN FRONT OF THE DOOR WHERE
THE PICKETING TOOK PLACE.  PETITIONERS, HOWEVER, CHOSE TO REST ON
JURISDICTIONAL GROUNDS. 

IN LIGHT OF THE OBSCURE RECORD, THE PHYSICAL CIRCUMSTANCES OF THIS
NARROW SIDEWALK, AND THE FINDING OF THE ALABAMA COURTS ON OBSTRUCTION
OF CUSTOMERS, COUPLED WITH THE FACT THAT ONLY A BARE REMNANT OF THE
ORIGINAL CONTROVERSY REMAINS, WE CONCLUDE THAT THE WRIT SHOULD BE
DISMISSED AS IMPROVIDENTLY GRANTED. 

/1/  SECTION 1055 PROVIDES: 

"UPON THE HEARING OF THE APPLICATION FOR INJUNCTION, THE SWORN
ANSWER OF THE DEFENDANT MAY BE CONSIDERED AS WELL AS THE BILL, AND BOTH
SIDES MAY INTRODUCE AFFIDAVITS OF THEMSELVES OR OTHER WITNESSES; AND
UPON CONSIDERATION, THE JUDGE MUST DETERMINE WHETHER THE INJUNCTION BE
GRANTED OR REFUSED." 

/2/  SECTION 1061 PROVIDES: 

"UPON THE HEARING OF MOTION TO DISSOLVE AN INJUNCTION, THE COURT MAY
CONSIDER THE SWORN BILL AND ANSWER, WHETHER THE ANSWER CONTAINS DENIALS
OF THE ALLEGATIONS OF THE BILL OR INDEPENDENT DEFENSIVE MATTER, AND
ALSO SUCH AFFIDAVITS AS ANY PARTY MAY INTRODUCE." 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN WOULD HOLD UNDER SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, THAT THE STATE'S
JURISDICTION IN THE CASE IS PRE-EMPTED BY THE NATIONAL LABOR RELATIONS
BOARD'S PRIMARY JURISDICTION OVER LABOR DISPUTES. 

(FOR SEPARATE MEMORANDUM OF MR. JUSTICE HARLAN, SEE POST, P. 229.) 

MR. CHIEF JUSTICE BURGER, CONCURRING. 

I AM IN ACCORD WITH THE COURT'S ACTION IN DISMISSING THIS PETITION
AS HAVING BEEN IMPROVIDENTLY GRANTED.  AS THE OPINION OF THE COURT
INDICATES, "THE OBSCURE RECORD" AND "THE FACT THAT ONLY A BARE REMNANT
OF THE ORIGINAL CONTROVERSY REMAINS" CAST SERIOUS DOUBT ON WHETHER WE
HAVE ENOUGH BEFORE US TO PASS ON THE CLAIM OF THE UNION THAT IT HAD A
FIRST AMENDMENT RIGHT TO PICKET ON THE PRIVATE PREMISES OF THE
EMPLOYER. 

THE OBSCURE RECORD AND THE ATROPHIED CONTROVERSY NOW REMAINING HAVE
LITTLE IF ANY IMPACT-- I THINK NONE-- ON THE ISSUE OF WHETHER THE
STATE'S JURISDICTION OVER THIS MATTER IS "PRE-EMPTED" BY THE NATIONAL
LABOR RELATIONS BOARD'S PRIMARY JURISDICTION OVER LABOR DISPUTES.  IN
MY VIEW ANY CONTENTION THAT THE STATES ARE PRE-EMPTED IN THESE
CIRCUMSTANCES IS WITHOUT MERIT.  THE PROTECTION OF PRIVATE PROPERTY,
WHETHER A HOME, FACTORY, OR STORE, THROUGH TRESPASS LAWS IS
HISTORICALLY A CONCERN OF STATE LAW.  CONGRESS HAS NEVER UNDERTAKEN TO
ALTER THIS ALLOCATION OF POWER, AND HAS PROVIDED NO REMEDY TO AN
EMPLOYER WITHIN THE NATIONAL LABOR RELATIONS ACT (NLRA) TO PREVENT AN
ILLEGAL TRESPASS ON HIS PREMISES.  /1/  RATHER, IT HAS ACTED AGAINST
THE BACKDROP OF THE GENERAL APPLICATION OF STATE TRESPASS LAWS TO
PROVIDE CERTAIN PROTECTIONS TO EMPLOYEES THROUGH SEC. 7 OF THE NLRA, 61
STAT. 140, 29 U.S.C. 157.  A HOLDING THAT THE STATES WERE PRECLUDED
FROM ACTING WOULD REMOVE THE BACKDROP OF STATE LAW THAT PROVIDED THE
BASIS OF CONGRESSIONAL ACTION BUT WOULD LEAVE INTACT THE NARROWER
RESTRIANT PRESENT IN FEDERAL LAW THROUGH SEC. 7 AND WOULD THEREBY
ARTIFICALLY CREATE A NO-LAW AREA. 

NOTHING IN SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236
(1959), WOULD WARRANT THIS COURT TO DECLARE STATE-LAW TRESPASS REMEDIES
TO BE INEFFECTIVE AND THUS TO REMIT A PERSON TO HIS OWN SELF-HELP
RESOURCES IF HE DESIRES REDRESS FOR ILLEGAL TRESPASSORY PICKETING. 
GARMON LEFT TO THE STATES THE POWER TO REGULATE ANY MATTER OF
"PERIPHERAL CONCERN" TO THE NLRA OR THAT CONDUCT THAT TOUCHES INTERESTS
"DEEPLY ROOTED IN LOCAL FEELING AND RESPONSIBILITY."  (359 U.S.,AT 243,
244.)  FEW CONCEPTS ARE MORE "DEEPLY ROOTED" THAN THE POWER OF A STATE
TO PROTECT THE RIGHTS OF ITS CITIZENS.  LINN V. UNITED PLANT GUARD
WORKERS, LOCAL 114, 383 U.S. 53 (1966), APPLIED THE GARMON EXCEPTIONS
TO ALLOW STATE JURISDICTION OVER MALICIOUS LIBEL IN UNION
ORGANIZATIONAL LITERATURE, RECOGNIZING THAT IF THE SATES WERE PRECLUDED
FROM ACTING, THERE WOULD BE AN ABSENCE OF ANY LEGAL REMEDY.  THE COURT
THERE OBSERVED THAT: 

"THE FACT THAT THE BOARD HAS NO AUTHORITY TO GRANT EFFECTIVE RELIEF
AGGRAVATES THE STATE'S CONCERN SINCE THE REFUSAL TO REDRESS AN
OTHERWISE ACTIONABLE WRONG CREATES DISRESPECT FOR THE LAW AND
ENCOURAGES THE VICTIM TO TAKE MATTERS INTO HIS OWN HANDS."  383
PU.S.,AT 64 N. 6. 

A HOLDING THAT CONGRESS PRE-EMPTED THIS ENTIRE AREA IS AS
INAPPROPRIATE HERE AS IT WAS IN LINN, AND FOR PRECISELY THE SAME
REASONS.  CF. INTERNATIONAL LONGSHOREMEN'S LOCAL 1416 V. ARIADNE
SHIPPING CO., ANTE, P. 201 (WHITE, J., CONCURRING). 

/1/  SEE PEOPLE V. GODUTO, 21 ILL.2D 605, 608-609, 174 N.E.2D 385,
387, CERT. DENIED, 368 U.S. 927 (1961); HOOD V. STAFFORD, 213 TENN.
684, 694-695, 378 S.W.2D 766, 771 (1964); MORELAND CORP. V. RETAIL
STORE EMPLOYEES, LOCAL 444, 16 WIS.2D 499, 503, 114 N.W.2D 876, 878
(1962); BROOMFIELD, PREEMPTIVE FEDERAL JURISDICTION OVER CONCERTED
TRESPASSORY UNION ACTIVITY, 83 HARV.L.REV.  552, 555, 562-568 (1970). 

SEPARATE MEMORANDUM OF MR. JUSTICE HARLAN. 

I AM PROMPTED BY THE CONCURRING OPINION OF THE CHIEF JUSTICE IN THIS
CASE, AND BY THE CONCURRING OPINION OF MR. JUSTICE WHITE (JOINED BY THE
CHIEF JUSTICE AND MR. JUSTICE STEWART) IN INTERNATIONAL LONGSHOREMEN'S
LOCAL 1416 V. ARIADNE SHIPPING CO., ANTE, P. 201, DECIDED TODAY, TO
AMPLIFY, WITH THE FOLLOWING OBSERVATIONS, MY VOTE TO GRANT CERTIORARI
AND REVERSE THE STATE JUDGMENT IN THE PRESENT CASE. 

I WOULD HAVE THOUGHT THIS AN EASY CASE AFTER SAN DIEGO BUILDING
TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959), WHEREIN THE COURT
CONCLUDED, IN THE BROADEST TERMS, THAT CONDUCT THAT IS EITHER "ARGUABLY
PROTECTED" OR "ARGUABLY PROHIBITED" UNDER THE FEDERAL LABOR LAWS IS NOT
SUBJECT TO REGULATION BY THE STATES.  IN SUCH CASES THE COURT HELD THAT
FEDERAL LAW AND FEDERAL REMEDIES APPLY TO THE EXCLUSION OF ANY STATE
RULES, AND THAT WHETHER FEDERAL LAW DOES APPLY IS TO BE DECIDED IN THE
FIRST INSTANCE BY THE NATIONAL LABOR RELATIONS BOARD IN ACCORDANCE WITH
THE POLICY OF "PRIMARY JURISDICTION" ESTABLISHED BY THE NATIONAL LABOR
RELATIONS ACT.  IT WAS CONCLUDED THAT THE BOARD'S JURISDICTION WAS PRE
EMPTIVE NOTWITHSTANDING THE FACT THAT ACCESS TO THE BOARD WAS BARRED BY
ITS REFUSAL TO EXERCISE JURISDICTION BECAUSE OF FAILURE TO MEET THE
DOLLAR-AMOUNT REQUIREMENTS. 

THE PICKETING IN THE CASE BEFORE US OCCURRED, AS FOUND BY THE
ALABAMA TRIAL COURT, IN THE CONTEXT OF A LABOR DISPUTE, AND ULTIMATELY
TOOK PLACE ON PRIVATE SIDEWALKS MAINTAINED BY RESPONDENT IN FRONT OF
ENTRANCES TO ITS BUILDING.  THE TRIAL COURT ALSO FOUND THAT THERE WAS
NO VIOLENCE OR THREAT OF VIOLENCE.  THUS, NOTWITHSTANDING MY
DIFFERENCES WITH THE GARMON MAJORITY, SEE MY CONCURRING OPINION, 359
U.S.,AT 249, AS TO WHETHER STATES ARE PRE-EMPTED FROM REGULATING
ARGUABLY "UNPROTECTED' ACTIVITIES, ID., AT 253, I WOULD REVERSE THE
DECISION BELOW SINCE THE PICKETING IN THIS CASE FALLS WELL WITHIN THE
RANGE OF WHAT COULD BE CONSIDERED TO BE PROTECTED UNDER THE ACT. 

WHILE I RECOGNIZE THE CHIEF JUSTICE'S AND MR. JUSTICE WHITE'S
CONCERN OVER THE HIATUS CREATED WHEN THE BOARD DOES NOT OR CANNOT
ASSERT ITS JURISDICTION, SEE THE CONCURRING OPINION OF THE CHIEF
JUSTICE, ANTE, P. 227, AND THE CONCURRING OPINION OF MR. JUSTICE WHITE
IN INTERNATIONAL LONGSHOREMEN'S LOCAL 1416 V. ARIADNE SHIPPING CO.,
ANTE, P. 201; SEE ALSO BROOMFIELD, PREMPTIVE FEDERAL JURISDICTION OVER
CONCERTED TRESPASSORY UNION ACTIVITY, 83 HARV.L.REV.  552 (1970), THAT
CONSIDERATION IS FORECLOSED, CORRECTLY IN MY VIEW, BY GARMON.  CONGRESS
IN THE NATIONAL LABOR RELATIONS ACT ERECTED A COMPREHENSIVE REGULATORY
STRUCTURE AND MADE THE BOARD ITS CHIEF SUPERINTENDENT IN ORDER TO
ASSURE UNIFORMITY OF APPLICATION BY AN EXPERIENCED AGENCY.  WHERE
CONDUCT IS "ARGUABLY PROTECTED," DIVERSITY OF DECISIONS BY STATE COURTS
WOULD SUBVERT THE UNIFORMITY CONGRESS ENVISIONED FOR THE FEDERAL
REGULATORY PROGRAM.  IN THE ABSENCE OF ANY FURTHER EXPRESSION FROM
CONGRESS I WOULD STAND BY GARMON AND FORECLOSE STATE ACTION WITH
RESPECT TO "ARGUABLY PROTECTED ACTIVITIES," UNTIL THE BOARD HAS ACTED,
EVEN IF WRONGS MAY OCCASIONALLY GO PARTIAL,LY OR WHOLLY UNREDRESSED. 

NOTHING IN LINN V. UNITED PLANT GUARD WORKERS, LOCAL 114, 383 U.S.
53 (1966), IS TO THE CONTRARY.  THE ALLUSION THERE TO THE EXACERBATING
EFFECT OF THE VACUUM CREATED BY THE BOARD'S INABILITY TO "REDRESS" AN
"OTHERWISE ACTIONABLE WRONG" WAS MADE IN THE CONTEXT OF AN IMPLICIT
HOLDING THE "MALICIOUS LIBEL," EVEN THOUGH PUBLISHED DURING A LABOR
CAMPAIGN, WAS NOT "ARGUABLY PROTECTED" BY THE ACT AND THE DETERMINATION
THAT IT WAS A "MERELY PERIPHERAL CONCERN OF THE LABOR MANAGEMENT
RELATIONS ACT."  383 U.S.,AT 61.  LINN IS FAR REMOVED FROM THE PRESENT
CASE.  CF. INTERNATIONAL ASSOCIATION OF MACHINISTS V. GONZALES, 356
U.S. 617 (1958). 

BERNARD DUNAU ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE CARL L. TAYLOR, OTTO E. SIMON, AND JAMES C. WOOD. 

SHAYLE P. FOX ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE LAWRENCE M. COHEN AND ALAN RAYWID.     BRIEFS OF AMICI
CURIAE URGING REVERSAL WERE FILED BY SOLICITOR GENERAL GRISWOLD, ARNOLD
ORDMAN, DOMINICK L. MANOLI, NORTON J. COME, AND LINDA SHER FOR THE
NATIONAL LABOR RELATIONS BOARD, AND BY J. ALBERT WOLL, LAURENCE GOLD,
AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS. 

BRICE I. BISHOP AND PHIL B. HAMMOND FILED A BRIEF FOR THE AMERICAN
RETAIL FOUNDATION AS AMICUS CURIAE URGING AFFIRMANCE. 

ALLEN B. GRESHAM FILED A BRIEF FOR THE HOMART DEVELOPMENT CO. AS
AMISCUS CURIAE. 
..END :






NORTHCROSS V. BD. OF EDUCATION, 397 U.S. 232 


       NORTHCROSS ET AL. V. BOARD OF EDUCATION OF THE MEMPHIS,

           TENNESSEE, CITY SCHOOLS ET AL.

ON PETITION FOR WIRT OF CERTIORARI TO THE UNITED STATES

        COURT OF APPEALS FOR THE SIXTH CIRCUIT

NO. 1136.  DECIDED MARCH 9, 1970. 


IN MAY 1969 THE DISTRICT COURT ORDERED THE MEMPHIS BOARD OF EDUCATION
TO FILE A MAP OF PROPOSED ZONE BOUNDARIES AND ENROLLMENT FIGURES BY
RACE WITHIN THE REVISED ZONES, SO AS TO ENABLE THE COURT TO RECONSIDER
THE ADEQUACY OF A TRANSFER PROVISION.  THE COURT FOUND THAT THE
EXISTING AND SUPPLEMENTAL PLANS DID "NOT HAVE REAL PROSPECTS FOR
DISMANTLING THE STATE-IMPOSED DUAL SYSTEM AT THE 'EARLIEST PRACTICABLE
DATE.'"  THE COURT OF APPEALS DENIED PETITIONERS' REQUEST, BASED ON
ALEXANDER V. HOLMES COUNTY BOARD, 396 U.S. 19, FOR AN INJUNCTION
REQUIRING THE BOARD TO FILE BY JANUARY 5, 1970, A PLAN FOR THE
OPERATION OF THE SCHOOLS AS A UNITARY SYSTEM FOR THE CURRENT SCHOOL
YEAR, ON THE GROUND THAT ALEXANDER WAS INAPPLICABLE BECAUSE THE BOARD
HAD CONVERTED THE "DUAL SYSTEM INTO A UNITARY SYSTEM."  HELD:  THE
COURT OF APPEALS ERRED (1) IN SUBSTITUTING ITS FINDING THAT THE BOARD
IS NOT NOW OPERATING A DUAL SYSTEM FOR THE DISTRICT COURT'S CONTRARY
FINDINGS, WHICH WERE BASED ON SUBSTANTIAL EVIDENCE; (2) IN RULING
PREMATURELY THAT THE BOARD HAD CONVERTED TO A UNITARY SYSTEM, SINCE
NEITHER THE REVISED PLAN NOR THE SCHOOL ZONES AND ENROLLMENT FIGURES
ORDERED TO BE FILED BY JANUARY 1, 1970, WERE PROPERLY BEFORE IT FOR
REVIEW; AND (3) IN HOLDING THAT ALEXANDER IS INAPPLICABLE TO THIS
CASE. 

CERTIORARI GRANTED; COURT OF APPEALS' REMAND OF DECEMBER 19, 1969,
AFFIRMED AS MODIFIED; COURT OF APPEALS' ORDERED OF JANUARY 12, 1970,
DENYING INJUNCTIVE RELIEF, AFFIRMED; MOTION FOR INJUNCTION PENDING
CERTIORARI DENIED. 

PER CURIAM. 

IN 1966 THE DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
APPROVED A PLAN OF RESPONDENT BOARD OF EDUCATION FOR THE DESEGRATION OF
THE MEMPHIS SCHOOL SYSTEM.  IN JULY 1968 PETITIONERS MADE A MOTION THAT
THE COURT ORDER THE BOARD TO ADOPT A NEW PLAN PREPARED WITH THE
ASSISTANCE OF THE TITLE IV CENTER OF THE UNIVERSITY OF TENNESSEE.  THE
CENTER IS FUNDED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. 
THE 1966 PLAN PERMITTED UNRESTRICTED FREE TRANSFERS, AND PETITIONERS
DESIRED A PLAN WITHOUT SUCH A PROVISION, AND ONE THAT WOULD ALSO
PROVIDE AMONG OTHER THINGS FOR COMPLETE FACULTY DESEGRATION.  THE
DISTRICT COURT DENIED THE MOTION AS FILED BUT ON MAY 15, 1969, IN AN
UNREPORTED OPINION, DIRECTED RESPONDENT BOARD TO FILE A REVISED PLAN
WHICH WOULD INCORPORATE THE EXISTING PLAN (AS RESPONDENT PROPOSED
DURING THE HEARING TO SUPPLEMENT IT), AND WHICH ALSO WOULD CONTAIN A
MODIFIED TRANSFER PROVISION, A PROVISION FOR THE APPOINTMENT OF A
DIRECTOR OF DESEGRATION CHARGED WITH RESPONSIBILITY TO DEVISE WAYS AND
MEANS "OF ASSISTING THE BOARD IN ITS AFFIRMATIVE DUTY TO CONVERT TO A
UNITARY SYSTEM IN WHICH RACIAL DISCRIMINATION WILL BE ELIMINATED ROOT
AND BRANCH," AND PROVISION FOR FACULTY DESEGRATION.  THE COURT ALSO
DIRECTED THAT, PRIOR TO JANUARY 1, 1970, THE BOARD FILE A MAP OF
PROPOSED REVISED ZONE BOUNDARY LINES AND ENROLLMENT FIGURES BY RACE
WITHIN THE REVISED ZONES TO ENABLE THE COURT THEN TO "RECONSIDER THE
ADEQUACY OF THE TRANSFER PLAN."  THE DISTRICT COURT EXPRESSLY FOUND
THAT SUCH FURTHER STEPS WERE NECESSARY BECAUSE, ALTHOUGH THE RESPONDENT
BOARD "HAS ACTED IN GOOD FAITH," "THE EXISTING AND PROPOSED
(SUPPLEMENTAL) PLANS DO NOT HAVE REAL PROSPECTS FOR DISMANTLING THE
STATE-IMPOSED DUAL SYSTEM AT THE 'EARLIEST PRACTICABLE DATE.'" 

PETITIONERS APPEALED TO THE COURT OF APPEALS FOR THE SIXTH CIRCUIT. 
IN JUNE 1969 THEY FILED A MOTION FOR SUMMARY REVERSAL AND ON NOVEMBER
3, 1969, AFTER THIS COURT'S DECISION IN ALEXANDER V. HOLMES COUNTY
BOARD OF EDUCATION, 396 U.S. 19 (1969), A MOTION TO REQUIRE ADOPTION OF
A UNITARY SYSTEM NOW.  BOTH MOTIONS WERE DENIED ON DECEMBER 19, 1969,
AND THE CASE WAS REMANDED TO THE DISTRICT COURT; THE COURT OF APPEALS
STATED THAT ACTION ON ITS PART WOULD BE PREMATURE "UNTIL THE UNITED
STATES DISTRICT COURT HAS HAD SUBMITTED TO IT THE ORDERED PLAN, AND HAS
HAD OPPORTUNITY TO CONSIDER AND ACT UPON IT." 

PETITIONERS THEREUPON FILED IN THE COURT OF APPEALS A MOTION FOR
INJUNCTION PENDING CERTIORARI WHICH, IN RELIANCE UPON ALEXANDER V.
HOLMES COUNTY BOARD, SOUGHT AN INJUNCTION REQUIRING RESPONDENT BOARD
"TO PREPARE AND FILE ON OR BEFORE JANUARY 5, 1970, IN ADDITION TO THE
ADJUSTED ZONE LINES IT IS PRESENTLY REQUIRED TO FILE, A PLAN FOR THE
OPERATION OF THE CITY OF MEMPHIS PUBLIS SCHOOLS AS A UNITARY SYSTEM
DURING THE CURRENT 1969-70 SCHOOL YEAR."  THE MOTION WAS DENIED ON
JANUARY 12, 1970, ON THE GROUND THAT ALEXANDER V. HOLMES COUNTY BOARD
WAS INAPPLICABLE TO THE CASE BECAUSE "(THE COURT OF APPEALS IS)
SATISFIED THAT THE RESPONDENT BOARD OF EDUCATION OF MEMPHIS IS NOT NOW
OPERATING A 'DUAL SCHOOL SYSTEM' AND HAS, SUBJECT TO COMPLYING WITH THE
PRESENT COMMANDS OF THE DISTRICT JUDGE, CONVERTED ITS PRE-BROWN DUAL
SYSTEM INTO A UNITARY SYSTEM' WITHIN WHICH NO PERSON IS TO BE
EFFECTIVELY EXCLUDED BECAUSE OF RACE OR COLOR.'" 

PETITIONERS, ON JANUARY 30, 1970, FILED IN THIS COURT A PETITION FOR
CERTIORARI AND A MOTION FOR INJUNCTION PENDING CERTIORARI AND A MOTION
FOR INJUNCTION FOR INJUNCTION PENDING FOR CERTIORARI "REQUIRING THE
PREPARATION, WITH THE ASSISTANCE OF H.E.W. OR THE H.E.W.-FUNDED
UNIVERSITY OF TENNESSEE TITLE IV CENTER, OF A PLAN OF COMPLETE PUPIL
AND FACULTY INTEGRATION AFFECTING ALL PHASES OF THE OPERATIONS OF THE
MEMPHIS PUBLIC SCHOOL SYSTEM, FOR IMPLEMENTATION DURING THE 1969-70
SCHOOL YEAR IN CONFORMITY WITH . . . ALEXANDER V. HOLMES COUNTY BD. . .
. " 

THE PETITION FOR CERTIORARI IS GRANTED.  WE HOLD THAT THE COURT OF
APPEALS ERRED IN THE FOLLOWING RESPECTS: 

1.  SINCE THE FINDINGS OF THE DISTRICT COURT-- THAT THE STATE
IMPOSED DUAL SYSTEM HAD NOT BEEN DISMANTLED UNDER THE 1966 PLAN AND
THAT THAT PLAN AND THE BOARD'S PROPOSED SUPPLEMENTAL PLAN DID "NOT HAVE
REAL PROSPECTS FOR DISMANTLING (IT) . . . AT THE 'EARLIEST PRACTICABLE
DATE'"-- ARE SUPPORTED BY SUBSTANTIAL EVIDENCE, THE COURT OF APPEALS
ERRED IN SUBSTITUTING ITS OWN FINDING THAT RESPONDENT BOARD "IS NOT NOW
OPERATING A 'DUAL SCHOOL SYSTEM' . . . . " 

2.  SINCE IT APPEARS THAT NEITHER THE REVISED PLAN OF DESEGREGATION
FILED ON JUNE 9, 1969, NOR THE REVISED SCHOOL ZONES AND UPDATED
ENROLLMENT FIGURES WHICH WERE ORDERED TO BE FILED ON OR BEFORE JANUARY
1, 1970, WERE PROPERLY BEFORE THE COURT OF APPEALS FOR REVIEW, IT WAS
PREMATURE FOR THE COURT OF APPEALS TO RULE THAT THE BOARD "HAS, SUBJECT
TO COMPLYING WITH THE PRESENT COMMANDS OF THE DISTRICT JUDGE, CONVERTED
ITS PRE-BROWN DUAL SYSTEM INTO A UNITARY SYSTEM INTO A UNITARY SYSTEM
'WITHIN WHICH NO PERSON IS TO BE EFFECTIVELY EXCLUDED BECAUSE OF RACE
OR COLOR.'" 

3.  IN HOLDING THAT ALEXANDER V. HOLMES COUNTY BOARD IS INAPPLICABLE
TO THIS CASE. 

THE COURT OF APPEALS' ORDER OF REMAND OF DECEMBER 19, 1969, IS
AFFIRMED, BUT WITH DIRECTION THAT THE DISTRICT COURT PROCEED PROMPTLY
TO CONSIDER THE ISSUES BEFORE IT AND TO DECIDE THE CASE CONSISTENTLY
WITH ALEXANDER V. HOLMES COUNTY BOARD.  THE ORDER OF THE COURT OF
APPEALS OF JANUARY 12, 1970, DENYING INJUNCTIVE RELIEF IS AFFIRMED. 
THE MOTION FOR INJUNCTION PENDING CERTIROARI FILED IN THIS COURT IS
DENIED. 

THE JUDGMENT HEREIN SHALL ISSUE FORTHWITH. 

     IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. CHIEF JUSTICE BURGER, CONCURRING IN THE RESULT. 

SAVE FOR ONE FACTOR, I WOULD GRANT THE PETITION AND SET THE CASE FOR
EXPEDITED ARGUMENT AT A SPECIAL SITTING, IF NECESSARY.  THE FACTOR
WHICH IS A BARRIER TO TAKING THIS STEP NOW IN THIS PARTICULAR CASE IS
THAT ONE JUSTICE WOULD NOT BE ABLE TO PARTICIPATE, THUS LIMITING THE
COURT TO SEVEN JUSTICES.  I WOULD DO THIS ON THE BASIS THAT THE TIME
HAS COME TO CLEAR UP WHAT SEEMS TO BE A CONFUSION, GENUINE OR
SIMULATED, CONCERNING THIS COURT'S PRIOR MANDATES.  BY THE TIME OF NO.
944, CARTER V. WEST FELICIANA PARISH SCHOOL BOARD, 396 U.S. 290 (1970),
MR. JUSTICE STEWART AND I INDICATED WE PREFERRED NOT TO REACH A
DECISION WITHOUT FIRST HEARING ORAL ARGUMENT. 

THESE SCHOOL CASES PRESENT WIDELY VARYING FACTORS:  SOME RECORDS
REVEAL PLANS FOR DESEGREGATING SCHOOLS, OTHERS HAVE NO PLANS OR ONLY
PARTIAL PLANS; SOME RECORDS REFLECT REZONING OF SCHOOL DISTRICTS,
OTHERS DO NOT; SOME USE TRADITIONAL BUS TRANSPORTATION SUCH AS BEGAN
WITH CONSOLIDATED SCHOOLS WHERE SUCH TRANSPORTATION WAS IMPERATIVE,
OTHERS USE SCHOOL BUS TRANSPORTATION FOR A DIFFERENT PURPOSE AND
UNRELATED TO THE AVAILABILITY OF A SCHOOL AS TO WHICH SUCH
TRANSPORTATION IS NOT REQUIRED. 

THE SUGGESTION THAT THE COURT HAS NOT DEFINED A UNITARY SCHOOL
SYSTEM IS NOT SUPPORTABLE.  IN ALEXANDER V. HOLMES COUNTY BOARD OF
EDUCATION, 396 U.S. 19 (1969), WE STATED, ALBEIT PERHAPS TOO
CRYPTICALLY, THAT A UNITARY SYSTEM WAS ONE "WITHIN WHICH NO PERSON IS
TO BE EFFECTIVELY EXCLUDED FROM ANY SCHOOL BECAUSE OF RACE OR COLOR." 
FROM WHAT IS NOW BEFORE US IN THIS CASE IT IS NOT CLEAR WHAT ISSUES
MIGHT BE RAISED OR DEVELOPED ON ARGUMENT.  AS SOON AS POSSIBLE,
HOWEVER, WE OUGHT TO RESOLVE SOME OF THE BASIC PRACTICAL PROBLEMS WHEN
THEY ARE APPROPRIATELY PRESENTED INCLUDING WHETHER, AS A CONSTITUTIONAL
MATTER, ANY PARTICULAR RACIAL BALANCE MUST BE ACHIEVED IN THE SCHOOLS;
TO WHAT EXTENT SCHOOL DISTRICTS AND ZONES MAY OR MUST BE ALTERED AS A
CONSTITUTIONAL MATTER; AND TO WHAT EXTENT TRANSPORTATION MAY OR MUST BE
PROVIDED TO ACHIEVE THE ENDS SOUGHT BY PRIOR HOLDINGS OF THE COURT. 
OTHER RELATED ISSUES MAY EMERGE. 

HOWEVER, FOR THE REASONS STATED, NAMELY THAT THE COURT IS ALREADY
DISABLED BY ONE VACANCY OF LONG STANDING AND FURTHER DISABLED IN THE
PARTICULAR CASE, I JOIN IN THE RESULT REACHED BY THE COURT. 

JACK GREENBERG AND JAMES M. NABRIT III FOR PETITIONERS. 

JACK PETREE FOR RESPONDENTS. 
..END :



















ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS, INC. V. CAMP,
COMPTROLLER OF THE CURRENCY, 397 U.S. 150 



       ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS, INC,,

           ET AL. V. CAMP, COMPTROLLER OF THE CURRENCY, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT

NO. 85.  ARGUED NOVEMBER 18, 1969-- DECIDED MARCH 3, 1970 


PETITIONERS, WHICH PROVIDE DATA PROCESSING SERVICES TO BUSINESSES
GENERALLY, CHALLENGE A RULING BY THE COMPTROLLER OF THE CURRENCY
PERMITTING NATIONAL BANKS, SUCH AS RESPONDENT BANK, AS AN INCIDENT TO
THEIR BANKING SERVICES, TO MAKE DATA PROCESSING SERVICES AVAILABLE TO
OTHER BANKS AND BANK CUSTOMERS.  THE DISTRICT COURT DISMISSED THE
COMPLAINT, HOLDING TAHT PETITIONERS LACKED STANDING TO BRING THE SUIT,
AND THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  PETITIONERS HAVE STANDING TO MAINTAIN THE ACTION.  PP. 151-156,
157. 

(A) PETITIONERS SATISFY THE "CASE" OR "CONTROVERSY" TEST OF ARTICLE
III OF THE CONSTITUTION, AS THEY ALLEGE THAT THE BANKS' COMPETITION
CAUSES THEM ECONOMIC INJURY.  PP. 152-153. 

(B) THE INTEREST SOUGHT TO BE PROTECTED BY PETITIONERS IS ARGUABLY
WITHIN THE ZONE OF INTERESTS TO BE PROTECTED OR REGULATED BY THE
STATUTE AND PETITIONERS ARE "AGGRIEVED" PERSONS UNDER SEC. 702 OF THE
ADMINISTRATIVE PROCEDURE ACT.  PP. 153-156, 157. 

2.  CONGRESS DID NOT PRECLUDE JUDICIAL REVIEW OF THE COMPTROLLER'S
RULINGS AS TO THE SCOPE OF ACTIVITIES STATUTORILY AVAILABLE TO NATIONAL
BANKDS.  PP. 156-157. 

406 F.2D 837, REVERSED AND REMANDED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS SELL DATA PROCESSING SERVICES TO BUSINESSES GENERALLY. 
IN THIS SUIT THEY SEEK TO CHALLENGE A RULING BY RESPONDENT COMPTROLLER
OF THE CURRENCY THAT, AS AN INCIDENT TO THEIR BANKING SERVICES,
NATIONAL BANKS, INCLUDING RESPONDENT AMERICAN NATIONAL BANK & TRUST
COMPANY, MAY MAKE DATA PROCESSING SERVICES AVAILABLE TO OTHER BANKS AND
TO BANK CUSTOMERS.  THE DISTRICT COURT DISMISSED THE COMPLAINT FOR LACK
OF STANDING OF PETITIONERS TO BRING THE SUIT.  279 F.SUPP.  675.  THE
COURT OF APPEALS AFFIRMED.  406 F.2D 837.  THE CASE IS HERE ON A
PETITION FOR WRIT OF CERTIORARI WHICH WE GRANTED.  395 U.S. 976. 

GENERALIZATIONS ABOUT STANDING TO SUE ARE LARGELY WORTHLESS AS
SUCH.  ONE GENERALIZATION IS, HOWEVER, NECESSARY AND THAT IS THAT THE
QUESTION OF STANDING IN THE FEDERAL COURTS IS TO BE CONSIDERED IN THE
FRAMEWORK OF ARTICLE III WHICH RESTRICTS JUDICIAL POWER TO "CASES" AND
"CONTROVERSIES."  AS WE RECENTLY STATED IN FLAST V. COHEN, 392 U.S. 83,
101, "(IN TERMS OF ARTICLE III LIMITATIONS ON FEDERAL COURT
JURISDICTION, THE QUESTION OF STANDING IS RELATED ONLY TO WHETHER THE
DISPUTE SOUGHT TO BE ADJUDICATED WILL BE PRESENTED IN AN ADVERSARY
CONTEXT AND IN A FORM HISTORICALLY VIEWED AS CAPABLE OF JUDICIAL
RESOLUTION."  FLAST WAS A TAXPAYER'S SUIT.  THE PRESENT IS A
COMPETITOR'S SUIT.  AND WHILE THE TWO HAVE THE SAME ARTICLE III
STARTING POINT, THEY DO NOT NECESSARILY TRACK ONE ANOTHER. 

THE FIRST QUESTION IS WHETHER THE PLAINTIFF ALLEGES THAT THE
CHALLENGED ACTION HAS CAUSED HIM INJURY IN FACT, ECONOMIC OR
OTHERWISE.  THERE CAN BE NO DOUBT BUT THAT PETITIONERS HAVE SATISFIED
THIS TEST.  THE PETITIONERS NOT ONLY ALLEGE THAT COMPETITION BY
NATIONAL BANKS IN THE BUSINESS OF PROVIDING DATA PROCESSING SERVICES
MIGHT ENTAIL SOME FUTURE LOSS OF PROFITS FOR THE PETITIONERS, THEY ALSO
ALLEGE THAT RESPONDENT AMERICAN NATIONAL BANK & TRUST COMPANY WAS
PERFORMING OR PREPARING TO PERFORM SUCH SERVICES FOR TWO CUSTOMERS FOR
WHOM PETITIONER DATA SYSTEMS, INC., HAD PREVIOUSLY AGREED OR NEGOTIATED
TO PERFORM SUCH SERVICES.  THE PETITIONERS' SUIT WAS BROUGHT NOT ONLY
AGAINST THE AMERICAN NATIONAL BANK & TRUST COMPANY, BUT ALSO AGAINST
THE COMPTROLLER OF THE CURRENCY.  THE COMPTROLLER WAS ALLEGED TO HAVE
CAUSED PETITIONERS INJURY IN FACT BY HIS 1966 RULING WHICH STATED: 

     "INCIDENTAL TO ITS BANKING SERVICES, A NATIONAL BANK MAY MAKE

  AVAILABLE ITS DATA PROCESSING EQUIPMENT OR PERFORM DATA

  PROCESSING SERVICES ON SUCH EQUIPMENT FOR OTHER BANKS AND BANK

  CUSTOMERS."  COMPTROLLER'S MANUAL FOR NATIONAL BANKS PARA. 3500

(OCTOBER 15, 1966). 

THE COURT OF APPEALS VIEWED THE MATTER DIFFERENTLY, STATING: 

     "(A) PLAINTIFF MAY CHALLENGE ALLEGED ILLEGAL COMPETITION WHEN

  AS COMPALINANT IT PURSUES (1) A LEGAL INTEREST BY REASON OF

  PUBLIC CHARTER OR CONTRACT, . . . (2) A LEGAL INTEREST BY REASON

  OF STATUTORY PROTECTION, . . . OR (3) A 'PUBLIC INTEREST' IN

  WHICH CONGRESS HAS RECOGNIZED THE NEED FOR REVIEW OF

  ADMINISTRATIVE ACTION AND PLAINTIFF IS SIGNIFICANTLY INVOLVED TO

HAVE STANDING TO REPRESENT THE PUBLIC.  . . . "

406 F.2D, AT 842-843.  /1/ 

THOSE TESTS WERE BASED ON PRIOR DECISIONS OF THIS COURT, SUCH AS
TENNESSEE POWER CO. V. TVA, 306 U.S. 118, WHERE PRIVATE POWER COMPANIES
SOUGHT TO ENJOIN TVA FROM OPERATING, CLAIMING THAT THE STATUTORY PLAN
UNDER WHICH IT WAS CREATED WAS UNCONSTITUTIONAL.  THE COURT DENIED THE
COMPETITORS' STANDING, HOLDING THAT THEY DID NOT HAVE THAT STATUS
"UNLESS THE RIGHT INVADED IS A LEGAL RIGHT,-- ONE OF PROPERTY, ONE
ARISING OUT OF CONTRACT, ONE PROTECTED AGAINST TORTIOUS INVASION, OR
ONE FOUNDED ON A STATUTE WHICH CONFERS A PRIVILEGE."  ID., AT 137-138. 

THE "LEGAL INTEREST" TEST GOES TO THE MERITS.  THE QUESTION OF
STANDING IS DIFFERENT.  IT CONCERNS, APART FROM THE "CASE" OR
"CONTROVERSY" TEST, THE QUESTION WHETHER THE INTEREST SOUGHT TO BE
PROTECTED BY THE COMPLAINANT IS ARGUABLY WITHIN THE ZONE OF INTERESTS
TO BE PROTECTED OR REGULATED BY THE STATUTE OR CONSTITUTIONAL GUARANTEE
IN QUESTION.  THUS THE ADMINISTRATIVE PROCEDURE ACT GRANTS STANDING TO
A PERSON "AGGRIEVED BY AGENCY ACTION WITHIN THE MEANING OF A RELEVANT
STATUTE."  5 U.S.C. 702 (1964 ED., SUPP. IV).  THAT INTEREST, AT TIMES,
MAY REFLECT "AESTHETIC, CONSERVATIONAL, AND RECREATIONAL" AS WELL AS
ECONOMIC VALUES.  SCENIC HUDSON PRESERVATION CONF. V. FPC, 354 F.2D
608, 616; OFFICE OF COMMUNICATION OF UNITED CHURCH OF CHRIST V. FCC,
123 U.S.APP.D.C. 328, 334-340, 359 F.2D 994, 1000-1006.  A PERSON OR A
FAMILY MAY HAVE A SPIRITUAL STAKE IN FIRST AMENDMENT VALUES SUFFICIENT
TO GIVE STANDING TO RAISE ISSUES CONCERNING THE ESTABLISHMENT CLAUSE
AND THE FREE EXERCISE CLAUSE.  ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374
U.S. 203.  WE MENTION THESE NONECONOMIC VALUES TO EMPHASIZE THAT
STANDING MAY STEM FROM THEM AS WELL AS FROM THE ECONOMIC INJURY ON
WHICH PETITIONERS RELY HERE.  CERTAINLY HE WHO IS "LIKELY TO BE
FINANCIALLY" INJURED, FCC V. SANDERS BROS. RADIO STATION, 309 U.S. 470,
477, MAY BE A RELIABLE PRIVATE ATTORNEY GENERAL TO LITIGATE THE ISSUES
OF THE PUBLIC INTEREST IN THE PRESENT CASE. 

APART FROM ARTICLE III JURISDICTIONAL QUESTIONS, PROBLEMS, OF
STANDING, AS RESOLVED BY THIS COURT FOR ITS OWN GOVERNANCE, HAVE
INVOLVED A "RULE OF SELF-RESTRAINT."  BARROWS V. JACKSON, 346 U.S. 249,
255.  CONGRESS CAN, OF COURSE, RESOLVE THE QUESTION ONE WAY OR ANOTHER,
SAVE AS THE REQUIREMENTS OF ARTICLE III DICTATE OTHERWISE.  MUSKRAT V.
UNITED STATES, 219 U.S. 346. 

WHERE STATUTES ARE CONCERNED, THE TREND IS TOWARD ENLARGEMENT OF THE
CLASS OF PEOPLE WHO MAY PROTEST ADMINISTRATIVE ACTION.  THE WHOLE DRIVE
FOR ENLARGING THE CATEGORY OF AGGRIEVED "PERSONS" IS SYMPTOMATIC OF
THAT TREND.  IN A CLOSELY ANALOGOUS CASE WE HELD THAT AN EXISTING
ENTREPRENEUR HAD STANDING TO CHALLENGE THE LEGALITY OF THE ENTRANCE OF
A NEWCOMER INTO THE BUSINESS, BECAUSE THE ESTABLISHED BUSINESS WAS
ALLEGEDLY PROTECTED BY A VALID CITY ORDINANCE THAT PROTECTED IT FROM
UNLAWFUL COMPETITION.  CHICAGO V. ATCHISON, T. & S.F.R. CO., 357 U.S.
77, 83-84.  IN THAT TRADITION WAS HARDIN V. KENTUCKY UTILITIES CO., 390
U.S. 1, WHICH INVOLVED A SECTION OF THE TVA ACT DESIGNED PRIMARILY TO
PROTECT, THROUGH AREA LIMITATIONS, PRIVATE UTILITIES AGAINST TVA
COMPETITION.  WE HELD THAT NO EXPLICIT STATUTORY PROVISION WAS
NECESSARY TO CONFER STANDING, SINCE THE PRIVATE UTILITY BRINGING SUIT
WAS WITHIN THE CLASS OF PERSONS THAT THE STATUTORY PROVISION WAS
DESIGNED TO PROTECT. 

IT IS ARGUED THAT THE CHICAGO CASE AND THE HARDIN CASE ARE RELEVANT
HERE BECAUSE OF SEC. 4 OF THE BANK SERVICE CORPORATION ACT OF 1962, 76
STAT. 1132, 12 U.S.C. 1864, WHICH PROVIDES: 

     "NO BANK SERVICE CORPORATION MAY ENGAGE IN ANY ACTIVITY OTHER

  THAN THE PERFORMANCE OF BANK SERVICES FOR BANKS." 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT HELD IN ARNOLD TOURS,
INC. V. CAMP, 408 F.2D 1147, 1153, THAT BY REASON OF SEC. 4 A DATA
PROCESSING COMPANY HAS STANDING TO CONTEST THE LEGALITY OF A NATIONAL
BANK PERFORMING DATA PROCESSING SERVICES FOR OTHER BANKS AND BANK
CUSTOMERS: 

"SECTION 4 HAD A BROADER PURPOSE THAN REGULATING ONLY THE SERVICE
CORPORATIONS.  IT WAS ALSO A RESPONSE TO THE FEARS EXPRESSED BY A FEW
SENATORS, THAT WITHOUT SUCH A PROHIBITION, THE BILL WOULD HAVE ENABLE
'BANKS TO ENGAGE IN A NONBANKING ACTIVITY,'  S. REP. NO. 2105, (87TH
CONG., 2D SESS., 7-12) (SUPPLEMENTAL VIEWS OF SENATORS PROXMIRE,
DOUGLAS, AND NEUBERGER), AND THUS CONSTITUTE 'A SERIOUS EXCEPTION TO
THE ACCEPTED PUBLIC POLICY WHICH STRICTLY LIMITS BANKS TO BANKING.' 
(SUPPLEMENTAL VIEWS OF SENATORS MUSKIE AND CLARK).  WE THINK CONGRESS
HAS PROVIDED THE SUFFICIENT STATUTORY AID TO STANDING EVEN THOUGH THE
COMPETITION MAY NOT BE THE PRECISE KIND CONGRESS LEGISLATED AGAINST." 

WE DO NOT PUT THE ISSUE IN THOSE WORDS, FOR THEY IMPLICATE THE
MERITS.  WE DO THINK, HOWEVER, THAT SEC. 4 ARGUABLY BRINGS A COMPETITOR
WITHIN THE ZONE OF INTERESTS PROTECTED BY IT. 

THAT LEAVES THE REMAINING QUESTION, WHETHER JUDICIAL REVIEW OF THE
COMPTROLLER'S ACTION HAS BEEN PRECLUDED.  WE DO NOT THINK IT HAS BEEN. 
THERE IS GREAT CONTRARIETY AMONG ADMINISTRATIVE AGENCIES CREATED BY
CONGRESS AS RESPECTS "THE EXTENT TO WHICH, AND THE PROCEDURES BY WHICH,
DIFFERENT MEASURES OF CONTROL AFFORD JUDICIAL REVIEW OF ADMINISTRATIVE
ACTION."  STARK V. WICKARD, 321 U.S. 288, 312 (FRANKFURTER, J.,
DISSENTING).  THE ANSWER, OF COURSE, DEPENDS ON THE PARTICULAR
ENACTIMENT UNDER WHICH REVIEW IS SOUGHT.  TI TURNS ON "THE EXISTENCE OF
COURTS AND THE INTENT OF CONGRESS AS DEDUCED FROM THE STATUTES AND
PRECEDENTS."  ID., AT 308. 

THE ADMINISTRATIVE PROCEDURE ACT PROVIDES THAT THE PROVISIONS OF THE
ACT AUTHORIZING JUDICIAL REVIEW APPLY "EXCEPT TO THE EXTENT THAT-- (1)
STATUTES PRECLUDE JUDICIAL REVIEW; OR (2) AGENCY ACTION IS COMMITTED TO
AGENCY DISCRETION BY LAW."  5 U.S.C. 701(A) (1964 ED., SUPP. IV). 

IN SHAUGHNESSY V. PEDREIRO, 349 U.S. 48, 51, WE REFERRED TO "THE
GENEROUS REVIEW PROVISIONS" OF THAT ACT; AND IN THAT CASE AS WELL AS IN
OTHERS (SEE RUSK V. CORT, 369 U.S. 367, 379-380) WE HAVE CONSTRUED THAT
ACT NOT GRUDINGLY BUT AS SERVING A BROADLY REMEDIAL PURPOSE. 

WE READ SEC. 701(A) AS SYMPATHETIC TO THE ISSUE PRESENTED IN THIS
CASE.  AS STATED IN THE HOUSE REPORT: 

"THE STATUTES OF CONGRESS ARE NOT MERELY ADVISORY WHEN THEY RELATE
TO ADMINISTRATIVE AGENCIES, ANY MORE THAN IN OTHER CASES.  TO PRECLUDE
JUDICIAL REVIEW UNDER THIS BILL A STATUTE, IF NOT SPECIFIC IN
WITHHOLDING SUCH REVIEW, MUST UPON ITS FACE GIVE CLEAR AND CONVINCING
EVIDENCE OF AN INTENT TO WITHHOLD IT.  THE MERE FAILURE TO PROVIDE
SPECIALLY BY STATUTE FOR JUDICIAL REVIEW IS CERTAINLY NO EVIDENCE OF
INTENT TO WITHHOLD REVIEW."  H. R. REP. NO. 1980, 79TH CONG., 2D SESS.,
41. 

THERE IS NO PRESUMPTION AGAINST JUDICIAL REVIEW AND IN FAVOR OF
ADMINISTRATIVE ABSOLUTISM (SEE ABBOTT LABORATORIES V. GARDNER, 387 U.S.
136, 140), UNLESS THAT PURPOSE IS FAIRLY DISCERNIBLE IN THE STATUTORY
SCHEME.  CF. SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S.
297. 

WE FIND NO EVIDENCE THAT CONGRESS IN EITHER THE BANK SERVICE
CORPORATION ACT OR THE NATIONAL BANK ACT /2/  SOUGHT TO PRECLUDE
JUDICIAL REVIEW OF ADMINISTRATIVE RULINGS BY THE COMPTROLLER AS TO THE
LEGITIMATE SCOPE OF ACTIVITIES AVAILABLE TO NATIONAL BANKS UNDER THOSE
STATUTES.  BOTH ACTS ARE CLEARLY "RELEVANT" STATUTES WITHIN THE MEANING
OF SEC. 702.  THE ACTS DO NOT IN TERMS PROTECT A SPECIFIED GROUP.  BUT
THEIR GENERAL POLICY IS APPARENT; AND THOSE WHOSE INTERESTS ARE
DIRECTLY AFFECTED BY A BROAD OR NARROW INTERPRETATION OF THE ACTS ARE
EASILY IDENTIFIABLE.  IT IS CLEAR THAT PETITIONERS, AS COMPETITORS OF
NATIONAL BANKS WHICH ARE ENGAGING IN DATA PROCESSING SERVICES, ARE
WITHIN THAT CLASS OF "AGGRIEVED" PERSONS WHO, UNDER SEC. 702, ARE
ENTITLED TO JUDICIAL REVIEW OF "AGENCY ACTION." 

WHETHER ANYTHING IN THE BANK SERVICE CORPORATION ACT OR THE NATIONAL
BANK ACT GIVES PETITIONERS A "LEGAL INTEREST" THAT PROTECTS THEM
AGAINST VIOLATIONS OF THOSE ACTS, AND WHETHER THE ACTIONS OF
RESPONDENTS DID IN FACT VIOLATE EITHER OF THOSE ACTS, ARE QUESTIONS
WHICH GO TO THE MERITS AND REAMIN TO BE DECIDED BELOW. 

WE HOLD THAT PETITIONERS HAVE STANDING TO SUE AND THAT THE CASE
SHOULD BE REMANDED FOR A HEARING ON THE MERITS. 

              REVERSED AND REMANDED. 

/1/  THE FIRST TWO TESTS APPLIED BY THE COURT OF APPEALS REQUIRED A
SHOWING OF A "LEGAL INTEREST."  BUT THE EXISTENCE OR NON-EXISTENCE OF A
"LEGAL INTEREST" IS A MATTER QUITE DISTINCT FROM THE PROBLEM OF
STANDING.  BARLOW V. COLLINS, POST, P. 159.  THE THIRD TEST MENTIONED
BY THE COURT OF APPEALS, WHICH RESTS ON AN EXPLICIT PROVISION IN A
REGULATORY STATUTE CONFERRING STANDING AND IS COMMONLY REFERRED TO IN
TERMS OF ALLOWING SUITS BY "PRIVATE ATTORNEYS GENERAL," IS INAPPLICABLE
TO THE PRESENT CASE.  SEE FCC V. SANDERS BROS. RADIO STATION, 309 U.S.
470; ASSOCIATED INDUSTRIES V. ICKES, 134 F.2D 694, VACATED ON
SUGGESTION OF MOOTNESS, 320 U.S. 707. 

/2/  PETITIONERS ALLEGE THAT THE COMPTROLLER'S RULING VIOLATES THE
NATIONAL BANK ACT, REV. STAT. SEC. 5136, 12 U.S.C. 24 SEVENTH, WHICH
PROVIDES THAT NATIONAL BANKS HAVE POWER TO EXERCISE "ALL SUCH
INCIDENTAL POWERS AS SHALL BE NECESSARY TO CARRY ON THE BUSINESS OF
BANKING." 

WE INTIMATE NO VIEW, UNDER THE DECISIONS RENDERED TODAY HERE AND IN
BARLOW V. COLLINS, SUPRA, ON THE ISSUE OF STANDING INVOLVED IN NO. 835,
NATIONAL ASSOCIATION OF SECURITIES DEALERS V. SEC, AND NO. 843,
INVESTMENT COMPANY INSTITUTE V. CAMP, NOW PENDING ON PETITIONS FOR
WRITS OF CERTIORARI. 

(FOR OPINION OF MR. JUSTICE BRENNAN, SEE POST, P. 167.) 

BERT M. GROSS ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE MILTON R. WESSEL AND FELIX M. PHILLIPS. 

ALAN S. ROSENTHALL ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF FOR RESPONDENT CAMP WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL RUCKELSHAUS, AND PETER L. STRAUSS.  FALLON
KELLY FILED A BRIEF FOR RESPONDENT AMERICAN NATIONAL BANK & TRUST CO. 

MATTHEW P. MITCHELL AND LELAND R. SELNA, JR., FILED A BRIEF FOR THE
SIERRA CLUB AS AMICUS CURIAE URGING REVERSAL. 

MATTHEW HALE FILED A BRIEF FOR THE AMERICAN BANKERS ASSOCIATION AS
AMICUS CURIAE URGING AFFIRMANCE. 
..END :























BARLOW V. COLLINS, 397 U.S. 159 


       BARLOW ET AL. V. COLLINS, EXECUTIVE DIRECTOR, ALABAMA

           AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE, ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 249.  ARGUED NOVEMBER 19, 1969-- DECIDED MARCH 3, 1970 


PETITIONERS, WHO ARE TENANT FARMERS ELIGIBLE FOR PAYMENTS UNDER THE
UPLAND COTTON PROGRAM, ENACTED AS PART OF THE FOOD AND AGRICULTURE ACT
OF 1965, CHALLENGE THE VALIDITY OF AN AMENDED REGULATION ISSUED BY THE
SECRETARY OF AGRICULTURE IN 1966.  THE PROGRAM INCORPORATES SEC. 8(G)
OF THE SOIL CONSERVATION AND DOMESTIC ALLOTMENT ACT, THEREBY PERMITTING
PARTICIPATING FARMERS TO ASSIGN PAYMENTS ONLY "AS SECURITY FOR CASH OR
ADVANCES TO FINANCE MAKING A CROP."  THE 1966 AMENDMENT CHANGED THE
DEFINITION OF "MAKING A CROP" TO PERMIT ASSIGNMENTS TO SECURE "THE
PAYMENT OF CASH RENT FOR LAND USED."  PETITIONERS SEEK A DECLARATORY
JUDGMENT HOLDING THE AMENDED REGULATION INVALID AND AN INJUNCTION
PROHIBITING RESPONDENT FEDERAL OFFICIALS FROM PERMITTING ASSIGNMENTS TO
PETITIONERS' LANDLORD, CLAIMING THAT HE CAN NOW DEMAND ASSIGNMENTS AS A
CONDITION OF LEASING AND THAT THE TENANTS, WHO LACK ANY OTHER SOURCE OF
CASH OR CREDIT, ARE REDUCED TO OBTAINING ALL OTHER NECESSITIES FROM THE
LANDLORD AT HIGH PRICES AND RATES OF INTEREST.  THE DISTRICT COURT HELD
THAT PETITIONERS LACKED STANDING TO MAINTAIN THE ACTION AND THE COURT
OF APPEALS AFFIRMED.  HELD: 

1.  PETITIONERS HAVE STANDING TO MAINTAIN THIS SUIT.  DATA
PROCESSING SERVICE V. CAMP, ANTE, P. 150.  PP. 164-167. 

(A) PETITIONERS HAVE THE PERSONAL STAKE AND INTEREST THAT IMPART THE
CONCRETE ADVERSENESS REQUIRED BY ARTICLE III OF THE CONSTITUTION.  P.
164. 

(B) PETITIONERS ARE CLEARLY WITHIN THE ZONE OF INTERESTS PROTECTED
BY THE FOOD AND AGRICULTURE ACT, AND THEY ARE PERSONS "AGGRIEVED BY
AGENCY ACTION WITHIN THE MEANING OF A RELEVANT STATUTE," AS SET FORTH
IN SEC. 702 OF THE ADMINISTRATIVE PROCEDURE ACT.  PP. 164-165. 

2.  THE STATUTORY SCHEME EVINCES A CONGRESSIONAL INTENT THAT THERE MAY
BE JUDICIAL REVIEW OF THE SECRETARY'S ACTION.  PP. 165-167. 

DISTRICT COURT JUDGMENT AND 398 F.2D 398, VACATED AND REMANDED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION TO BE DECIDED IN THIS CASE IS WHETHER TENANT FARMERS
ELIGIBLE FOR PAYMENTS UNDER THE UPLAND COTTON PROGRAM ENACTED AS PART
OF THE FOOD AND AGRICULTURE ACT OF 1965, 79 STAT. 1194, 7 U.S.C.
1444(D) (1964 ED., SUPP. IV), HAVE STANDING TO CHALLENGE THE VALIDITY
OF A CERTAIN AMENDED REGULATION PROMULGATED BY THE RESPONDENT SECRETARY
OF AGRICULTURE IN 1966. 

THE UPLAND COTTON PROGRAM INCORPORATES A 1938 STATUTE, SEC. 8(G) OF
THE SOIL CONSERVATION AND DOMESTIC ALLOTMENT ACT, AS AMENDED, 52 STAT.
35 AND 205, 16 U.S.C. 590HG), THEREBY PERMITTING PARTICIPANTS IN THE
PROGRAM TO ASSIGN PAYMENTS ONLY "AS SECURITY FOR CASH OR ADVANCES TO
FINANCE MAKING A CROP."  /1/  THE REGULATION OF THE RESPONDENT
SECRETARY OF AGRICULTURE IN EFFECT UNTIL 1966 DEFINED "MAKING A CROP"
TO EXCLUDE ASSIGNMENTS TO SECURE "THE PAYMENT OF THE WHOLE OR ANY PART
OF A CASH . . . RENT FOR A FARM."  20 FED.REG.  6512 (1965).  /2/
FOLLOWING PASSAGE OF THE 1965 ACT, HOWEVER, AND BEFORE ANY PAYMENTS
WERE MADE UNDER IT, THE SECRETARY DELETED THE EXCLUSION AND AMENDED THE
REGULATION EXPRESSLY TO DEFINE "MAKING A CROP" TO INCLUDE ASSIGNMENTS
TO SECURE "THE PAYMENT OF CASH RENT FOR LAND USED (FOR PLANTING,
CULTIVATING, OR HARVESTING)."  31 FED.REG.  2815 (1966).  /3/ 

PETITIONERS, CASH-RENT TENANT FARMERS SUING ON BEHALF OF THEMSELVES
AND OTHER FARMERS SIMILARLY SITUATED, FILED THIS ACTION IN THE DISTRICT
COURT FOR THE MIDDLE DISTRICT OF ALABAMA.  THEY SOUGHT A DECLARATORY
JUDGMENT THAT THE AMENDED REGULATION IS INVALID AND UNAUTHORIZED BY
STATUTE, AND AN INJUNCTION PROHIBITING THE RESPONDENT FEDERAL OFFICIALS
FROM PERMITTING ASSIGNMENTS PURSUANT TO THE AMENDED REGULATION.  /4/
THEIR COMPLAINT ALLEGED THAT THE PETITIONERS ARE SUFFERING IRREPARABLE
INJURY UNDER THE AMENDED REGULATION BECAUSE IT PROVIDES THEIR LANDLORD
"WITH THE OPPORTUNITY TO DEMAND THAT (THEY) AND ALL THOSE SIMILARLY
SITUATED ASSIGN THE (UPLAND COTTON PROGRAM) BENEFITS IN ADVANCE AS A
CONDITION TO OBTAINING A LEASE TO WORK THE LAND."  /5/  AS A RESULT,
THE COMPLAINT STATED, THE TENANTS ARE RREQUIRED TO OBTAIN FINANCING OF
ALL THEIR OTHER FARM NEEDS-- GROCERIES, CLOTHING, TOOLS, AND THE LIKE--
FROM THE LANDLORD AS WELL, SINCE PRIOR TO HARVESTING THE CROP THEY LACK
CASH AND ANY SOURCE OF CREDIT OTHER THAN THE LANDLORD.  HE, IN TURN,
THE COMPLAINT ALLEGES, LEVIES SUCH HIGH PRICES AND RATES OF INTEREST ON
THESE SUPPLIES THAT THE TENANTS' CROP PROFITS ARE CONSUMED EACH YEAR IN
DEBT PAYMENTS.  PETITIONERS CONTEND THAT THEY CAN ATTAIN A "MODEST
MEASURE OF ECONOMIC INDEPENDENCE" IF THEY ARE ABLE TO USE THEIR
"ADVANCE SUBSIDY PAYMENTS . . . (TO) FORM COOPERATIVES TO BUY
(SUPPLIES) AT WHOLESALE AND REASONABLE PRICES IN LIEU OF THE EXCESSIVE
PRICES DEMANDED BY (THE LANDLORD) OF . . . CAPTIVE CONSUMERS WITH NO
FUNDS TO PURCHASE ELSEWHERE."  THUS, PETITIONERS ALLEGE THAT THEY
SUFFER INJURY IN FACT FROM THE OPERATION OF THE AMENDED REGULATION. 

THE DISTRICT COURT, IN AN UNREPORTED OPINION, HELD THAT THE
PETITIONERS "LACK STANDING TO MAINTAIN THIS ACTION AGAINST THESE
(RESPONDENT) GOVERNMENTAL OFFICIALS," BECAUSE THE LATTER "HAVE NOT
TAKEN ANY ACTION WHICH DIRECTLY INVADES ANY LEGALLY PROTECTED INTEREST
OF THE PLAINTIFFS."  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
AFFIRMED, ONE JUDGE DISSENTING.  398 F.2D 398.  IT HELD THAT
PETITIONERS LACKED STANDING NOT ONLY BECAUSE THEY ALLEGED NO INVASION
OF A LEGALLY PROTECTED INTEREST BUT ALSO BECAUSE PETITIONERS "HAVE NOT
SHOWN US, NOR HAVE WE FOUND, ANY PROVISION OF THE FOOD AND AGRICULTURE
ACT OF 1965 WHICH EITHER EXPRESSLY OR IMPLIEDLY GIVES (PETITIONERS)
STANDING TO CHALLENGE THIS ADMINISTRATIVE REGULATION OR GIVES THE
COURTS AUTHORITY TO REVIEW SUCH ADMINISTRATIVE ACTION."  ID., AT 402. 
WE GRANTED CERTIORARI.  395 U.S. 958. 

OUR DECISION IN DATA PROCESSING SERVICE V. CAMP, ANTE, P. 150, LEADS
US TO REVERSE HERE. 

FIRST, THERE IS NO DOUBT THAT IN THE CONTEXT OF THIS LITIGATION THE
TENANT FARMERS, PETITIONERS HERE, HAVE THE PERSONAL STAKE AND INTEREST
THAT IMPART CONCRETE ADVERSENESS REQUIRED BY ARTICLE III. 

SECOND, THE TENANT FARMERS ARE CLEARLY WITHIN THE ZONE OF INTERESTS
PROTECTED BY THE ACT. 

IMPLICIT IN THE STATUTORY PROVISIONS AND THEIR LEGISLATIVE HISTORY
IS A CONGRESSIONAL INTENT THAT THE SECRETARY PROTECT THE INTERESTS OF
TENANT FARMERS.  BOTH OF THE RELEVANT STATUTES EXPRESSLY ENJOIN THE
SECRETARY TO DO SO.  THE FOOD AND AGRICULTURE ACT OF 1965 STATES THAT
"(THE SECRETARY SHALL PROVIDE ADEQUATE SAFEGUARDS TO PROTECT THE
INTERESTS OF TENANTS . . . . "  76 STAT. 1196, 7 U.S.C. 1444(D)(10)
(1964 ED., SUPP. IV).  /6/  TITLE 7 U.S.C. 1444(D)(13) (1964 ED., SUPP.
IV), AS NOTED EARLIER, INCORPORATES BY REFERENCE SEC. 8(G), AS AMENDED,
52 STAT. 35 AND 205, 16 U.S,C. 590HG).  SECTION 8(B) OF THAT ACT, IN
TURN, PROVIDES THAT "THE SECRETARY SHALL, AS FAR AS PRACTICABLE,
PROTECT THE INTERESTS OF TENANTS . . . . "  52 STAT. 32, 16 U.S.C.
590HB).  THE LEGISLATIVE HISTORY OF THE "MAKING A CROP"  PROVISION
THOUGH SPARSE, SIMILARLY INDICATES A CONGRESSIONAL INTENT TO BENEFIT
THE TENANTS.  /7/  THEY ARE PERSONS "AGGRIEVED BY AGENCY ACTION WITHIN
THE MEANING OF A RELEVANT STATUTE" AS THOSE WORDS ARE USED IN 5 U.S.C.
702 (1964 ED., SUPP. IV). 

THIRD, JUDICIAL REVIEW OF THE SECRETARY'S ACTION IS NOT PRECLUDED,
THE COURT OF APPEALS RESTED ITS HOLDING ON THE VIEW THAT NO PROVISION
OF THE FOOD AND AGRICULTURE ACT OF 1965 "EXPRESSLY OR IMPLIEDLY . . .
GIVES THE COURTS AUTHORITY TO REVIEW SUCH ADMINISTRATIVE ACTION."  398
F.2D, AT 402.  WHETHER AGENCY ACTION IS REVIEWABLE OFTEN POSES
DIFFICULT QUESTIONS OF CONGRESSIONAL INTENT; AND THE COURT MUST DEICDE
IF CONGRESS HAS IN EXPRESS OR IMPLIED TERMS PRECLUDED JUDICIAL REVIEW
OR COMMITTED THE CHALLENGED ACTION ENTIRELY TO ADMINISTRATIVE
DISCRETION. 

THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 701(A) (1964 ED., SUPP.
IV), ALLOWS JUDICIAL REVIEW OF AGENCY ACTION EXCEPT WHERE "(1) STATUTES
PRECLUDE JDUICIAL REVIEW; OR (2) AGENCY ACTION IS COMMITTED TO AGENCY
DISCRETION BY LAW."  THE AMENDED REGULATION HERE UNDER CHALLENGE WAS
PROMULGATED UNDER 16 U.S.C. 590D(3) WHICH AUTHORIZES THE SECRETARY TO
"PRESCRIBED SUCH REGULATIONS, AS HE MAY DEEM PROPER TO CARRY OUT THE
PROVISIONS OF THIS CHAPTER."  PLAINLY THIS PROVISION DOES NOT EXPRESSLY
PRECLUDE JUDICIAL REVIEW, NOR DOES ANY OTHER PROVISION IN EITHER THE
1938 OR 1965 ACT.  NOR DOES THE AUTHORITY TO PROMULGATE SUCH
REGULATIONS "AS HE MAY DEEM PROPER" IN SEC. 590D(3) CONSTITUTE A
COMMITMENT OF THE TASK OF DEFINING MAKING A CROP" ENTIRELY TO THE
DISCRETIONARY JUDGMENT OF THE EXECUTIVE BRANCH WITHOUT THE INTERVENTION
OF THE COURTS.  ON THE CONTRARY, SINCE THE ONLY OR PRINCIPAL DISPUTE
RELATES TO THE MEANING OF THE STATUTORY TERM, THE CONTROVERSY MUST
ULTIMATELY BE RESOLVED, NOT ON THE BASIS OF MATTERS WITHIN THE SPECIAL
COMPETENCE OF THE SECRETARY, BUT BY JUDICIAL APPLICATION OF CANONS OF
STATUTORY CONSTRUCTION.  SEE TEXAS GAS TRANSMISSION CORP. V. SHELL OIL
CO., 363 U.S. 263, 268-270.  "THE ROLE OF THE COURTS SHOULD, IN
PARTICULAR, BE VIEWED HOSPITABLY WHERE . . . THE QUESTION SOUGHT TO BE
REVIEWED DOES NOT SIGNIFICANTLY ENGAGE THE AGENCY'S EXPERTISE.  '(WHERE
THE ONLY OR PRINCIPAL DISPUTE RELATES TO THE MEANING OF THE STATUTORY
TERM'  . . . (THE CONTROVERSY) PRESENTS ISSUES ON WHICH COURTS, AND NOT
(ADMINISTRATORS), ARE RELATIVELY MORE EXPERT."  HARDIN V. KENTUCKY
UTILITIES CO., 390 U.S. 1, 14 (HARLAN, J., DISSENTING).  THEREFORE THE
PERMISSIVE TERM "AS HE MAY DEEM PROPER," BY ITSELF, IS NOT TO BE READ
AS A CONGRESSIONAL COMMAND WHICH PRECLUDES A JUDICIAL DETERMINATION OF
THE CORRECT APPLICATION OF THE GOVERNING CANONS. 

THE QUESTION THEN BECOMES WHETHER NONREVIEWABILITY CAN FAIRLY BE
INFERRED.  AS WE SAID IN DATA PROCESSING SERVICE, PRECLUSION OF
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION ADJUDICATING PRIVATE RIGHTS IS
NOT LIGHTLY TO BE INFERRED.  SEE LEEDOM V. KYNE, 358 U.S. 184; HARMON
V. BRUCKER, 355 U.S. 579; STARK V. WICKARD, 321 U.S. 288; AMERICAN
SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94.  INDEED, JUDICIAL
REVIEW OF SUCH ADMINISTRATIVE ACTION IS THE RULE, AND NONREVIEWABILITY
AN EXCEPTION WHICH MUST BE DEMONSTRATED.  IN ABBOTT LABORATORIES V.
GARDNER, 387 U.S. 136, 140, WE HELD THAT "JUDICIAL REVIEW OF A FINAL
AGENCY ACTION BY AN AGGRIEVED PERSON WILL NOT BE CUT OFF UNLESS THERE
IS PERSUASIVE REASON TO BELIEVE THAT SUCH WAS THE PURPOSE OF
CONGRESS."  A CLEAR COMMAND OF THE STATUTE WILL PRECLUDE REVIEW; AND
SUCH A COMMAND OF THE STATUTE MAY BE INFERRED FROM ITS PURPOSE. 
SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297.  IT IS,
HOWEVER, "ONLY UPON A SHOWING OF 'CLEAR AND CONVINCING EVIDENCE' OF A
CONTRARY LEGISLATIVE INTENT" THAT THE COURTS SHOULD RESTRICT ACCESS TO
JUDICIAL REVIEW.  ABBOTT LABORATORIES V. GARDNER, SUPRA, AT 141.  THE
RIGHT OF JUDICIAL REVIEW IS ORDINARILY INFERRED WHERE CONGRESSIONAL
INTENT TO PROTECT THE INTERESTS OF THE CLASS OF WHICH THE PLAINTIFF IS
A MEMBER CAN BE FOUND; IN SUCH CASES, UNLESS MEMBERS OF THE PROTECTED
CLASS MAY HAVE JUDICIAL REVIEW THE STATUTORY OBJECTIVES MIGHT NOT BE
REALIZED.  SEE THE CHICAGO JUNCTION CASE, 264 U.S. 258; HARDIN V.
KENTUCKY UTILITIES, SUPRA. 

WE HOLD THAT THE STATUTORY SCHEME AT ISSUE HERE IS TO BE READ AS
EVINCING A CONGRESSIONAL INTENT THAT PETITIONERS MAY HAVE JUDICIAL
REVIEW OF THE SECRETARY'S ACTION. 

THE JUDGMENTS OF THE COURT OF APPEALS AND OF THE DISTRICT COURT ARE
VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR A HEARING ON
THE MERITS. 

           IT IS SO ORDERED. 

/1/  THE SECRETARY OF AGRICULTURE IS AUTHORIZED BY 7 U.S.C.
1444(D)(5) (1964 ED., SUPP. IV) TO PAY A FARMER IN ADVANCE OF THE
GROWING SEASON UP TO 50% OF THE ESTIMATED BENEFITS DUE HIM.  SECTION
1444(D)(13) (1964 ED., SUPP. IV) AUTHORIZES THE FARMER TO ASSIGN SUCH
BENEFITS SUBJECT TO THE LIMITATIONS OF SEC. 8(G) ADDED BY THE 1938 ACT,
16 U.S.C. 590HG).  SECTION 8(G) AS ENACTED IN 1938 AND AS IT READ IN
1965 ESTABLISHED AN EXCEPTION TO THE GENERAL PROHIBITION AGAINST
ASSIGNMENT OF FEDERAL MONIES IN THE ANTI-ASSIGNMENT ACT, 31 U;S.C.
203.  SECTION 8(G) PROVIDED: 

"A PAYMENT WHICH MAY BE MADE TO A FARMER UNDER THIS SECTION, MAY BE
ASSIGNED, WITHOUT DISCOUNT, BY HIM IN WRITING AS SECURITY FOR CASH OR
ADVANCES TO FINANCE MAKING A CROP.  SUCH ASSIGNMENT SHALL BE SIGNED BY
THE FARMER AND WITNESSED BY A MEMBER OF THE COUNTY OR OTHER LOCAL
COMMITTEE . . . . SUCH ASSIGNMENT SHALL INCLUDE THE STATEMENT THAT THE
ASSIGNMENT IS NOT MADE TO PAY OR SECURE ANY PREEXISTING INDEBTEDNESS. 
THIS PROVISION SHALL NOT AUTHORIZE ANY SUIT AGAINST OR IMPOSE ANY
LIABILITY UPON THE SECRETARY . . . IF PAYMENT TO THE FARMER IS MADE
WITHOUT REGARD TO THE EXISTENCE OF ANY SUCH ASSIGNMENT."  52 STAT. 35
AND 205, 16 U.S.C. 590HG) (EMPHASIS ADDED). 

ASSIGNMENTS NOT ONLY TO FINANCE "MAKING A CROP" BUT ALSO TO FUND
"HANDLING OR MARKETING AN AGRICULTURAL COMMODITY, OR PERFORMING A
CONSERVATION PRACTICE."  16 U.S.C. 590HG) (1964 ED., SUPP. IV). 

/2/  20 FED.REG.  6512 (1955) PROVIDED: 

"PAYMENT MAY BE ASSIGNED TO FINANCE MAKING A CROP.  A PAYMENT WHICH
MAY BE MADE TO A FARMER . . . UNDER SECTION 8 OF THE SOIL CONSERVATION
AND DOMESTIC ALLOTMENT ACT, AS AMENDED, MAY BE ASSIGNED ONLY AS
SECURITY FOR CASH OR ADVANCES TO FINANCE MAKING A CROP FOR THE CURRENT
CROP YEAR.  TO FAINANCE MAKING A CROP MEANS (A) TO FINANCE THE
PLANTING, CULTIVATING, OR HARVESTING OF A CROP, INCLUDING THE PURCHASE
OF EQUIPMENT REQUIRED THEREFOR; (B) TO PROVIDE FOOD, CLOTHING, AND
OTHER NECESSITIES REQUIRED BY THE ASSIGNOR OR PERSONS DEPENDENT UPON
THE ASSIGNOR; OR (C) TO FINANCE THE CARRYING OUT OF SOIL OR WATER
CONSERVATION PRACTICES.  NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO
AUTHORIZE AN ASSIGNMENT GIVEN TO SECURE THE PAYMENT OF THE WHOLE OR ANY
PART OF THE PURCHASE PRICE OF A FARM OR THE PAYMENT OF THE WHOLE OR ANY
PART OF A CASH OR FIXED COMMODITY RENT FOR A FARM." 

/3/  32 FED.REG.  14921 (1967), 7 CFR 709.3 (1969) NOW PROVIDES: 

"PURPOSES FOR WHICH A PAYMENT MAY BE ASSIGNED. 

"(A) A PAYMENT WHICH MAY BE MADE TO A PRODUCER UNDER ANY PROGRAM TO
WHICH THIS PART IS APPLICABLE MAY BE ASSIGNED ONLY AS SECURITY FOR CASH
OR ADVANCES TO FINANCE MAKING A CROP, HANDLING OR MARKETING AN
AGRICULTURAL COMMODITY, OR PERFORMING A CONSERVATION PRACTICE, FOR THE
CURRENT CROP YEAR.  NO ASSIGNMENT MAY BE MADE TO SECURE OR PAY ANY
PREEXISTING INDEBTEDNESS OF ANY NATURE WHATSOEVER. 

"(B) TO FINANCE MAKING A CROP MEANS (1) TO FINANCE THE PLANTING,
CULTIVATING, OR HARVESTING OF A CROP, INCLUDING THE PURCHASE OF
EQUIPMENT REQUIRED THEREFOR AND THE PAYMENT OF CASH RENT FOR LAND USED
THEREFOR, OR (2) TO PROVIDE FOOD, CLOTHING, AND OTHER NECESSITIES
REQUIRED BY THE PRODUCER OR PERSONS DEPENDENT UPON HIM. 

"(C) NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO AHTORIZE AN
ASSIGNMENT GIVEN TO SECURE THE PAYMENT OF THE WHOLE OR ANY PART OF THE
PURCHASE PRICE OF A FARM OR THE PAYMENT OF THE WHOLE OR ANY PART OF A
FIXED COMMODITY RENT FOR A FARM."     /4/  THE RESPONDENTS, IN ADDITION
TO THE SECRETARY OF AGRICULTURE, ARE THE STATE EXECUTIVE DIRECTOR OF
THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE IN ALABAMA, AND
THE ADMINISTRATOR OF THAT SERVICE IN THE U. S. DEPARTMENT OF
AGRICULTURE.  THE COMPLAINT ALSO INCLUDED COUNTS AGAINST PETITIONERS'
LANDLORD ALLEGING THAT HE ACTED IMPROPERLY TO DEPRIVE THEM OF THEIR
RIGHT TO RECEIVE SUBSIDY PAYMENTS, AND, FURTHER, THAT SOME OF THE
PETITIONERS HAD BEEN ILLEGALLY EVICTED BECAUSE OF THEIR PARTICIPATION
IN LITIGATION WITH RESPECT TO THE COTTON PROGRAM, AND, IN THE CASE OF
ONE PETITIONER, BECAUSE OF HIS CANDIDACY FOR ALABAMA AGRICULATURAL
STABILIZATON AND CONSERVATION SERVICE COUNTY COMMITTEEMAN.  THE
DISTRICT COURT DENIED THE LANDLORD'S MOTION TO DISMISS THESE COUNTS AND
TRANSFERRED THEM FOR TRIAL TO THE SOUTHERN DISTRICT OF ALABAMA.  THAT
RULING IS NOT BEFORE US. 

/5/  THE COMPLAINT STATED THAT SOME OF THE PETITIONERS "WERE DENIED
THE RIGHT TO WORK THE LAND" WHEN THEY REFUSED TO EXECUTE ASSIGNMENTS TO
THEIR LANDLORD.  THE COMPLAINT ALSO ALLEGED THAT "(PLAINTIFFS HAVE BEEN
TENANT FARMERS ON THIS LAND FROM ELEVEN TO SIXTY-ONE YEARS . . . AND
(TWO OF THEM) HAVE BEEN ON THIS LAND ALL THEIR LIVES." 

/6/  IN CONNECTION WITH THE AMENDED REGULATIONS, THE SECRETARY
ISSUED UNDER SEC. 1444(D)(10) VARIOUS RULES DESIGNED TO ENSURE THAT
TENANTS RECEIVE THEIR FAIR SHARE OF THE FEDERAL PAYMENTS.  31 FED.REG. 
4887-5888; 7 CFR 722.817, 794.3. 

/7/  SEE THE REMARKS OF REPRESENTATIVE FULMER, 82 CONG.REC.  844
(1937), AND OF SENATOR ADMAS, ID., AT 1756.  THE FACT THAT ASSIGNMENTS
COULD BE MADE AT ALL INDICATED A CONGRESSIONAL CONCERN FOR THE FARMERS'
WELFARE, IN LIGHT OF THE GENERAL STATUTORY PROHIBITION ON ASSIGNMENT
OF FEDERAL CLAIMS EMBODIED IN THE ANTI-ASSIGNMENT ACT, 31 U.S.C. 203. 
THIS CONCERN WAS NOTED IN A LETTER FROM THE SECRETARY OF AGRICULTURE TO
THE PRESIDENT OF THE SENATA IN JANUARY 1952, IN WHICH THE SECRETARY
STATED THAT SEC. 8(G) "WAS ENACTED FOR THE PURPOSE OF CREATING
ADDITIONAL CREDIT TO FARMERS TO ASIST THEM IN FINANCING FARMING
OPERATIONS."  S. REP. NO. 1305, 82D CONG., 2D SESS., 3. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE WHITE JOINS, CONCURRING
IN THE RESULT AND DISSENTING.  /1A/ 

I CONCUR IN THE RESULT IN BOTH CASES BUT DISSENT FROM THE COURT'S
TREATMENT OF THE QUESTION OF STANDING TO CHALLENGE AGENCY ACTION. 

THE COURT'S APPROACH TO STANDING, SET OUT IN DATA PROCESSING, HAS
TWO STEPS:  (1) SINCE "THE FRAMEWORK OF ARTICLE III . . . RESTRICTS
JUDICIAL POWER TO 'CASES' AND 'CONTROVERSIES,'" THE FIRST STEP IS TO
DETERMINE "WHETHER THE PLAINTIFF ALLEGES THAT THE CHALLENGED ACTION HAS
CAUSED HIM INJURY IN FACT"; (2) IF INJURY IN FACT IS ALLEGED, THE
RELEVANT STATUTE OR CONSTITUTIONAL PROVISION IS THEN EXAMINED TO
DETERMINE "WHETHER THE INTEREST SOUGHT TO BE PROTECTED BY THE
COMPLAINANT IS ARGUABLY WITHIN THE ZONE OF INTERESTS TO BE PROTECTED OR
REGULATED BY THE STATUTE OR CONSTITUTIONAL GUARANTEE IN QUESTION." 

MY VIEW IS THAT THE INQUIRY IN THE COURT'S FIRST STEP IS THE ONLY
ONE THAT NEED BE MADE TO DETERMINE STANDING.  I HAD THOUGHT WE
DISCARDED THE NOTION OF ANY ADDITIONAL REQUIREMENT WHEN WE DISCUSSED
STANDING SOLELY IN TERMS OF ITS CONSTITUTIONAL CONTENT IN FLAST V.
COHEN, 392 U.S. 83 (1968).  BY REQUIRING A SECOND, NONCONSTITUTIONAL
STEP, THE COURT COMES VERY CLOSE TO PERPETUATING THE DISCREDITED
REQUIREMENT THAT CONDITIONED STANDING ON A SHOWING BY THE PLAINTIFF
THAT THE CHALLENGED GOVERNMENTAL ACTION INVADED ONE OF HIS LEGALLY
PROTECTED INTERESTS.  /1B/  BARLOW IS A TYPICAL ILLUSTRATION OF THE
HARM THAT RESULTED FROM THAT REQUIREMENT.  THE ONLY SUBSTANTIAL ISSUE
IN THAT CASE GOES TO THE MERITS:  DOES THE STATUTORY LANGUAGE "MAKING A
CROP" CREATE A LEGALLY PROTECTED INTEREST FOR TENANT FARMERS IN THE
FORM OF A PROHIBITION AGAINST THE ASSIGNMENT OF THEIR FEDERAL BENEFITS
TO SECURE CASH RENT?  BY CONFUSING THE MERITS WITH THE PLAINTIFF'S
STANDING TO CHALLENGE THE SECRETARY'S ACTION, BOTH THE DISTRICT COURT
AND THE COURT OF APPEALS DENIED THE FARMERS THE FOCUSED AND CAREFUL
DECISION ON THE MERITS TO WHICH THEY ARE CLEARLY ENTITLED.  ALTHOUGH
THIS COURT PROPERLY REVERSES THE COURT OF APPEALS ON THAT ACCOUNT, IT
ENCOURAGES MORE BARLOW DECISIONS BY ENGRAFTING ITS WHOLLY UNNECESSARY
AND INAPPROPRIATE SECOND STEP UPON THE CONSTITUTIONAL REQUIREMENT FOR
STANDING. 

BEFORE THE PLAINTIFF IS ALLOWED TO ARGUE THE MERITS, IT IS TRUE THAT
A CANVASS OF RELEVANT STATUTORY MATERIALS MUST BE MADE IN CASES
CHALLENGING AGENCY ACTION.  BUT THE CANVASS IS MADE, NOT TO DETERMINE
STANDING, BUT TO DETERMINE AN ASPECT OF REVIEWABILITY, THAT IS, WHETHER
CONGRESS MEANT TO DENY OR TO ALLOW JUDICIAL REVIEW OF THE AGENCY ACTION
AT THE INSTANCE OF THE PLAINTIFF.  /2/  THE COURT IN THE PRESENT CASE
EXAMINES THE STATUTORY MATERIALS FOR JUST THIS PURPOSE BUT ONLY AFTER
MAKING THE SAME EXAMINATION DURING THE SECOND STEP OF ITS STANDING
INQUIRY.  THUS IN DATA PROCESSING THE COURT DETERMINES THAT THE
PETITIONERS HAVE STANDING BECAUSE THEY ALLEGED INJURY IN FACT AND
BECAUSE "SEC.  4 (OF THE BANK SERVICE CORPORATION ACT OF 1962) ARGUABLY
BRINGS A COMPETITOR WITHIN THE ZONE OF INTERESTS PROTECTED BY IT."  THE
COURT THEN DETERMINES THAT THE COMPTROLLER'S ACTION IS REVIEWABLE AT
THE INSTANCE OF THE PLAINTIFFS BECAUSE "(BOTH (THE BANK SERVICE
CORPORATION ACT AND THE NATIONAL BANK ACT) ARE CLEARLY 'RELEVANT'
STATUTES WITHIN THE MEANING OF (THE ADMINISTRATIVE PROCEDURE ACT, 5
U.S.C. 702 (1964 ED., SUPP. IV).  THE ACTS DO NOT IN TERMS PROTECT A
SPECIFIED GROUP.  BUT THEIR GENERAL POLICY IS APPARENT; AND THOSE WHOSE
INTERESTS ARE DIRECTLY AFFECTED BY A BROAD OR NARROW INTERPRETATION OF
THE ACTS ARE EASILY IDENTIFIABLE.  IT IS CLEAR THAT PETITIONERS, AS
COMPETITORS OF NATIONAL BANKS THAT ARE ENGAGING IN DATA PROCESSING
SERVICES, ARE WITHIN THAT CLASS OF 'AGGRIEVED' PERSONS WHO, UNDER SEC.
702, ARE ENTITLED TO JUDICIAL REVIEW OF 'AGENCY ACTION.'"  AGAIN IN
BARLOW, THE PLAINTIFF TENANT FARMERS ARE FOUND TO HAVE STANDING BECAUSE
THEY ALLEGED INJURY IN FACT AND BECAUSE "TENANT FARMERS ARE . . .
WITHIN THE ZONE OF INTERESTS PROTECTED BY THE ACT."  EXAMINATION OF THE
SAME STATUTORY MATERIALS SUBSEQUENTLY LEADS THE COURT TO THE CONCLUSION
THAT THE TENANT FARMERS ARE ENTITLED TO JUDICIAL REVIEW OF THE
SECRETARY'S ACTION BECAUSE "THE STATUTORY SCHEME . . . IS TO BE READ AS
EVINCING A CONGRESSIONAL INTENT THAT PETITIONERS MAY HAVE JUDICIAL
REVIEW OF THE SECRETARY'S ACTION. 

I SUBMIT THAT IN MAKING SUCH EXAMINATION OF STATUTORY MATERIALS AN
ELEMENT IN THE DETERMINATION OF STANDING, THE COURT NOT ONLY PERFORMS A
USELESS AND UNNECESSARY EXERCISE BUT ALSO ENCOURAGES BADLY REASONED
DECISIONS, WHICH MAY WELL DENY JUSTICE IN THEIS COMPLEX FIELD.  WHEN
AGENCY ACTION IS CHALLENGED, STANDING, REVIEWABILITY, AND THE MERITS
POSE DISCRETE, AND OFTEN COMPLICATED, ISSUES WHICH CAN BEST BE RESOLVED
BY RECOGNIZING AND TREATING THEM AS SUCH. 

        I

        STANDING 

ALTHOUGH FLAST V. COHEN WAS NOT A CASE CHALLENGING AGENCY ACTION,
ITS DETERMINATION OF THE BASIS FOR STANDING SHOULD RESOLVE THAT
QUESTION FOR ALL CASES.  WE THERE CONFIRMED WHAT WE SAID IN BAKER V.
CARR, 369 U.S. 186, 204 (1962), THAT THE "GIST OF THE QUESTION OF
STANDING" IS WHETHER THE PARTY SEEKING RELIEF HAS "ALLEGED SUCH A
PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY AS TO ASSURE THAT
CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF ISSUES UPON
WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULT . . .
QUESTIONS."  "IN OTHER WORDS," WE SAID IN FLAST, "WHEN STANDING IS
PLACED IN ISSUE IN A CASE, THE QUESTION IS WHETHER THE PERSON WHOSE
STANDING IS CHALLENGED IS A PROPER PARTY TO REQUEST AN ADJUDICATION OF
A PARTICULAR ISSUE" AND NOT WHETHER THE CONTROVERSY IS OTHERWISE
JUSTICIABLE, /3/  OR WHETHER, ON THE MERITS, THE PLAINTIFF HAS A
LEGALLY PROTECTED INTEREST THAT THE DEFENDANT'S ACTION INVADED.  392
U.S., AT 99-100.  THE OBJECTIVES OF THE ARTICLE III STANDING
REQUIREMENT ARE SIMPLE:  THE AVOIDANCE OF ANY USE OF A "FEDERAL COURT
AS A FORUM (FOR THE AIRING OF) GENERALIZED GRIEVANCES ABOUT THE CONDUCT
OF GOVERNMENT," AND THE CREATION OF A JUDICIAL CONTEXT IN WHICH "THE
QUESTIONS WILL BE FRAMED WITH THE NECESSARY SPECIFICITY, . . . THE
ISSUES . . . CONTESTED WITH THE NECESSARY ADVERSENESS AND . . . THE
LITIGATION . . . PURSUED WITH THE NECESSARY VIGOR TO ASSURE THAT THE .
. . CHALLENGE WILL BE MADE IN A FORM TRADITIONALLY THOUGHT TO BE
CAPABLE OF JUDICIAL RESOLUTION."  ID., AT 106.  THUS, AS WE HELD IN
FLAST, "THE QUESTION OF STANDING IS RELATED ONLY TO WHETHER THE DISPUTE
SOUGHT TO BE ADJUDICATED WILL BE PRESENTED IN AN ADVERSARY CONTEXT AND
IN A FORM HISTORICALLY VIEWED AS CAPABLE OF JUDICIAL RESOLUTION."  ID.,
AT 101.  /4/  SEE ALSO CHICAGO V. ATCHISON, T. & S.F.R. CO., 357 U.S.
77, 83-84 (1958). 

IN LIGHT OF FLAST, STANDING EXISTS WHEN THE PLAINTIFF ALLEGES, AS
THE PLAINTIFFS IN EACH OF THESE CASES ALLEGED, THAT THE CHALLENGED
ACTION HAS CAUSED HIM INJURY IN FACT, ECONOMIC OR OTHERWISE.  /5/  HE
THUS SHOWS THAT HE HAS THE REQUISITE "PERSONAL STAKE IN THE OUTCOME" OF
HIS SUIT.  BAKER V. CARR, SUPRA, AT 204.  WE MAY REASONABLY EXPECT THAT
A PERSON SO HARMED WILL, AS BEST HE CAN, FRAME THE RELEVANT QUESTIONS
WITH SPECIFICITY, CONTEST THE ISSUES WITH THE NECESSARY ADVERSENESS,
AND PURSUE THE LITIGATION VIGOROUSLY.  /6/  RECOGNITION OF HIS STANDING
TO LITIGATE IS THEN CONSISTENT WITH THE CONSTITUTION, AND NO FURTHER
INQUIRY IS PERTINENT TO ITS EXISTENCE. 

        II

        REVIEWABILITY 

WHEN THE LEGALITY OF ADMINISTRATIVE ACTION IS AT ISSUE, STANDING
ALONE WILL NOT ENTITLE THE PLAINTIFF TO A DECISION ON THE MERITS. 
PERTINENT STATUTORY LANGUAGE, LEGISLATIVE HISTORY, AND PUBLIC POLICY
CONSIDERATIONS MUST BE EXAMINED TO DETERMINE WHETHER CONGRESS PRECLUDED
ALL JUDICIAL REVIEW, AND, IF NOT, WHETHER CONGRESS NEVERTHELESS
FORECLOSED REVIEW TO THE CLASS TO WHICH THE PLAINTIFF BELONGS.  UNDER
THE ADMINISTRATIVE PROCEDURE ACT (APA), "STATUTES (MAY) PRECLUDE
JUDICIAL REVIEW" OR AGENCY ACTION (MAY BE) COMMITTED TO AGENCY
DISCRETION BY LAW."  5 U.S.C. 701(A) (1964 ED., SUPP. IV).  IN EITHER
CASE, THE PLAINTIFF IS OUT OF COURT, NOT BECAUSE HE HAD NO STANDING TO
ENTER, BUT BECAUSE CONGRESS HAS STRIPPED THE JUDICIARY OF AUTHORITY TO
REVIEW AGENCY ACTION.  REVIEW MAY BE TOTALLY FORECLOSED, AS IN
SCHILLING V. ROGERS, 363 U.S. 666 (1960), OR, IF PERMITTED, IT MAY
NONETHELESS BE DENIED TO THE PLAINTIFF'S CLASS.  BUT THE GOVERNING
PRINCIPLES LAID DOWN IN ABBOTT LABORATORIES V. GARDNER, 387 U.S. 136,
140 (1967), IS THAT "JUDICIAL REVIEW OF A FINAL AGENCY ACTION BY AN
AGGRIEVED PERSON WILL NOT BE CUT OFF UNLESS THERE IS PERSUASIVE REASON
TO BELIEVE THAT SUCH WAS THE PURPOSE OF CONGRESS." 

THE APA PROVIDES THAT "(A) PERSON SUFFERING LEGAL WRONG BECAUSE OF
AGENCY ACTION, OR ADVERSELY AFFECTED OR AGGRIEVED BY AGENCY ACTION
WITHIN THE MEANING OF A RELEVANT STATUTE, IS ENTITLED TO JUDICIAL
REVIEW THEREOF."  5 U.S.C. 702 (1964 ED., SUPP. IV).  CONGRESSIONAL
INTENT THAT A PARTICULAR PLAINTIFF HAVE REVIEW MAY BE FOUND EITHER IN
EXPRESS STATUTORY LANGUAGE GRANTING IT TO THE PLAINTIFF'S CLASS, /7/
OR, IN THE ABSENCE OF SUCH EXPRESS LANGUAGE, IN STATUTORY INDICIA FROM
WHICH A RIGHT TO REVIEW MAY BE INFERRED.  /8 WHERE, AS IN THE INSTANT
CASES, THERE IS NO EXPRESS GRANT OF REVIEW, REVIEWABILITY HAS
ORDINARILY BEEN INFERRED FROM EVIDENCE THAT CONGRESS INTENDED THE
PLAINTIFF'S CLASS TO BE A BENEFICIARY OF THE STATUTE UNDER WHICH THE
PLAINTIFF RAISES HIS CLAIM.  SEE, FOR EXAMPLE, THE CHICAGO JUNCTION
CASE, 264 U.S. 258 (1924); HARDIN V. KENTUCKY UTILITIES CO., 390 U.S. 1
(1968); NORWALK CORE V. NORWALK REDEVELOPMENT AGENCY, 395 F.2D 920
(C.A. 2D CIR. 1968).  IN LIGHT OF ABBOTT LABORATORIES, SLIGHT INDICIA
THAT THE PLAINTIFF'S CLASS IS A BENEFICIARY WILL SUFFICE TO SUPPORT THE
INFERENCE.  /9/

        III

       THE MERITS 

IF IT IS DETERMINED THAT A PLAINTIFF WHO ALLEGED INJURY IN FACT IS
ENTITLED TO JUDICIAL REVIEW, INQUIRY PROCEEDS TO THE MERITS-- TO
WHETHER THE SPECIFIC LEGAL INTEREST CLAIMED BY THE PLAINTIFF IS
PROTECTED BY THE STATUTE AND TO WHETHER THE PROTESTED AGENCY ACTION
INVADED THAT INTEREST.  /10/  IT IS TRUE, OF COURSE, THAT MATTERS
RELEVANT TO THE MERITS WILL ALREADY HAVE BEEN TOUCHED TANGENTIALLY IN
THE DETERMINATION OF STANDING AND, IN SOME CASES, IN THE DETERMINATION
OF REVIEWABILITY.  THE ASPECT OF THE MERITS TOUCHED IN ESTABLISHING
STANDING IS THE IDENTIFICATION OF INJURY IN FACT, THE EXISTENCE OF
WHICH THE PLAINTIFF MUST PROVE.  THE MERITS ARE ALSO TOUCHED IN
ESTABLISHING REVIEWABILITY IN CASES WHERE THE PLAINTIFF'S RIGHT TO
REVIEW MUST BE INFERRED FROM EVIDENCE THAT HIS CLASS IS A STATUTORY
BENEFICIARY.  THE SAME STATUTORY INDICIA THAT AFFORD THE PLAINTIFF A
RIGHT TO REVIEW ALSO BEAR ON THE MERITS, BECAUSE THEY PROVIDE EVIDENCE
THAT THE STATUTE PROTECTS HIS CLASS, AND THUS THAT HE IS ENTITLED TO
RELIEF IF HE CAN SHOW THAT THE CHEALLENGED AGENCY ACTION VIOLATED THE
STATUTE.  EVIDENCE THAT THE PLAINTIFF'S CLASS IS A STATUTORY
BENEFICIARY, HOWEVER, NEED NOT BE AS STRONG FOR THE PURPOSE OF
OBTAINING REVIEW AS FOR THE PURPOSE OF ESTABLISHING THE PLAINTIFF'S
CLAIM ON THE MERITS.  UNDER ABBOTT LABORATORIES, SLIGHT BENEFICIARY
INDICIA WILL SUFFICE TO ESTABLISH HIS RIGHT TO HAVE REVIEW AND THUS TO
REACH THE MERITS. 

        IV 

TO REITERATE, IN MY VIEW ALLEGED INJURY IN FACT, REVIEWABILITY, AND
THE MERITS POSE QUESTIONS THAT ARE LARGELY DISTINCT FROM ONE ANOTHER,
EACH GOVERNED BY ITS OWN CONSIDERATIONS.  TO FAIL TO ISOLATE AND TREAT
EACH INQUIRY INDEPENDENTLY OF THE OTHER TWO, SO FAR AS POSSIBLE, IS TO
RISK UNINFORMED, POORLY REASONED DECISIONS THAT MAY RESULT IN
INJUSTICE.  TOO OFTEN TEHSE VARIOUS QUESTIONS HAVE BEEN MERGED INTO ONE
CONFUSED INQUIRY, LUMPED UNDER THE GENERAL RUBRIC OF "STANDING."  THE
BOOKS ARE FULL OF OPINIONS THAT DISMISS A PLAINTIFF FOR LACK OF
"STANDING" WHEN DISMISSAL, IF PROPER AT ALL, ACTUALLY RESTED EITHER
UPON THE PLAINTIFF'S FAILURE TO PROVE ON THE MERITS THE EXISTENCE OF
THE LEGALLY PROTECTED INTEREST THAT HE CLAIMED, /11/  OR ON HIS FAILURE
TO PROVE THAT THE CHALLENGED AGENCY ACTION WAS REVIEWABLE AT HIS
INSTANCE.  /12/     THE RISK OF AMBIGUITY AND INJUSTICE CAN BE
MINIMIZED BY CLEANLY SEVERING, SO FAR AS POSSIBLE, THE INQUIRIES INTO
REVIEWABILITY AND THE MERITS FROM THE DETERMINATION OF STANDING. 
TODAY'S DECISIONS, HOWEVER, WILL ONLY COMPOUND PRESENT CONFUSION AND
BREED EVEN MORE LITIGATION OVER STANDING.  IN THE FIRST PLACE, THE
COURT'S FORMULATION OF ITS NONCONSTITUTIONAL ELEMENT OF STANDING IS
OBSCURE.  WHAT PRECISELY MUST BE PLAINTIFF DO TO ESTABLISH THAT "THE
INTEREST SOUGHT TO BE PROTECTED . . . IS ARGUABLY WITHIN THE ZONE OF
INTERESTS TO BE PROTECTED OR REGULATED BY THE STATUTE"?  HOW SPECIFIC
AN "INTEREST" MUST HE ADVANCE?  WILL A BROAD, GENERAL CLAIM, SUCH AS
COMPETITIVE INTEREST, SUFFICE, OR MUST HE IDENTIFY A SPECIFIC LEGALLY
PROTECTED INTEREST?  WHEN, TOO, IS HIS INTEREST "ARGUABLY" WITHIN THE
APPROPRIATE "ZONE"?  DOES A MERE ALLEGATION THAT IT FALLS THERE
SUFFICE?  IF MORE THAN AN ALLEGATION IS REQUIRED, IS THE PLAINTIFF
REQUIRED TO ARGUE THE MERITS?  AND WHAT IS THE DISTINCTION BETWEEN A
"PROTECTED" AND A "REGULATED" INTEREST?  IS IT POSSIBLE THAT A
PLAINTIFF MAY CHALLENGE AGENCY ACTION UNDER A STATUTE THAT
UNQUESTIONABLY REGULATES THE INTEREST AT STAKE, BUT THAT EXPRESSLY
EXCLUDES THE PLAINTIFF'S CLASS FROM AMONG THE STATUTORY BENEFICIARIES? 

IN THE SECOND PLACE, THOUGH THE COURT INSISTS THAT ITS
NONCONSTITUTIONAL STANDING INQUIRY DOES NOT INVOLVE A DETERMINATION OF
THE MERITS, I HAVE GRAVE MISGIVINGS ON THIS SCORE.  THE FORMULATION OF
THE INQUIRY MOST CERTAINLY BEARS A DISQUIETING SIMILARITY TO THE
ERRONEOUS NOTION THAT A PLAINTIFF HAS NO STANDING UNLESS HE CAN
ESTABLISH THE EXISTENCE OF A LEGALLY PROTECTED INTEREST.  FINALLY,
ASSUMING THAT THE INQUIRY DOES NOT, IN FACT, FOCUS ON THE MERITS, THEN
SURELY IT SERVES ONLY TO DETERMINE WHETHER THE CHALLENGED AGENCY ACTION
IS REVIEWABLE AT THE INSTANCE OF THE PLAINTIFF IN CASES WHERE THERE IS
NO EXPRESS STATUTORY GRANT OF REVIEW TO MEMBERS OF HIS CLASS.  /18/
AND, IF THIS IS SO, IT HAS NO PLACE IN THE DETERMINATION OF STANDING. 
IN TERMS OF TREATING RELATED QUESTIONS WITH ONE ANOTHER, THIS INQUIRY
IS BEST MADE IN THE REVIEWABILITY CONTEXT.  THE CONSTITUTION REQUIRES
FOR STANDING ONLY THAT THE PLAINTIFF ALLEGE THAT ACTUAL HARM RESULTED
TO HIM FROM THE AGENCY ACTION.  INVESTIGATION TO DETERMINE WHETHER THE
CONSTITUTIONAL REQUIREMENT HAS BEEN MET HAS NOTHING IN COMMON WITH THE
INQUIRY INTO STATUTORY LANGUAGE, LEGISLATIVE HISTORY, AND PUBLIC POLICY
THAT MUST BE MADE TO ASCERTAIN WHETHER CONGRESS HAS PRECLUDED OR
LIMITED JUDICIAL REVIEW.  /14/  MORE FUNDAMENTALLY, AN APPROACH THAT
TREATS SEPARATELY THE DISTINCT ISSUES OF STANDING, REVIEWABILITY, AND
THE MERITS, AND DECIDES EACH ON THE BASIS OF ITS OWN CRITERIA, ASSURES
THAT THESE OFTEN COMPLEX QUESTIONS WILL BE SQUARELY FACED, THUS
CONTRIBUTING TO BETTER REASONED DECISIONS AND TO GREATER CONFIDENCE
THAT JUSTICE HAS IN FACT BEEN DONE.  THE COURTS APPROACH DOES TOO
LITTLE TO GUARD AGAINST THE POSSIBILITY THAT JUDGES WILL USE STANDING
TO SLAM THE COURTHOUSE DOOR AGAINST PLAINTIFFS WHO ARE ENTITLED TO FULL
CONSIDERATION OF THEIR CLAIMS ON THE MERITS.  THE COURT'S MUST TROUBLE
ALL CONCERNED WITH THE FUNCTION OF THE JUDCIAL PROCESS IN TODAY'S
WORLD.  AS MY BROTHER DOUGLAS HAS SAID: "THE JUDICIARY IS AN
INDISPENSABLE PART OF THE OPERATION OF OUR FEDERAL SYSTEM.  WITH THE
GROWING COMPLEXITIES OF GOVERNMENT IT IS OFTEN THE ONE AND ONLY PLACE
WHERE EFFECTIVE RELIED CAN BE OBTAINED . . . . (WHERE WRONGS TO
INDIVIDUALS ARE DONE . . . IT IS ABDICATION FOR COURTS TO CLOSE THEIR
DOORS."  FLAST V. COHEN, SUPRA, AT 111 (CONCURRING OPINION). 

/1A/  (THIS OPINION APPLIES ALSO TO NO. 85, ASSOCIATION OF DATA
PROCESSING SERVICE ORGANIZATIONS, INC., ET AL. V. CAMP, COMPTROLLER OF
THE CURRENCY, ET AL., ANTE, P. 150.) 

/1B/  CF. THE LANGUAGE IN ASSOCIATED INDUSTRIES V. ICKES, 134 F.2D
694, 700 (C.A. 2D CIR. 1943):  "IN A SUIT IN A FEDERAL COURT BY A
CITIZEN AGAINST A GOVERMENT OFFICER, COMPLAINING OF ALLEGED PAST . . .
UNLAWFUL CONDUCT BY THE DEFENDANT, THERE IS NO JUSTICIABLE
'CONTROVERSY' . . . UNLESS THE CITIZEN SHOWS THAT SUCH CONDUCT . . .
INVADES . . . A PRIVATE SUBSTANTIVE LEGALLY PROTECTED INTEREST OF THE
PLAINTIFF CITIZEN; SUCH INVADED INTEREST MUST BE EITHER OF A
'RECOGNIZED' CHARACTER, AT 'COMMON LAW' OR A SUBSTANTIVE PRIVATE
LEGALLY PROTECTED INTEREST CREATED BY STATUTE (OR CONSTITUTION)." 

/2/  REVIEWABILITY HAS OFTEN BEEN TREATED AS IF IT INVOLVED A SINGLE
ISSUE:  WHETHER AGENCY ACTION IS CONCLUSIVE AND BEYOND JUDICIAL
CHALLENGE BY ANYONE.  IN REALITY, HOWEVER, REVIEWABILITY IS EQUALLY
CONCERNED WITH A SECOND ISSUE:  WHETHER THE PARTICULAR PLAINTIFF THEN
REQUESTING REVIEW MAY HAVE IT.  SEE THE ADMINISTRATIVE PROCEDURE ACT, 5
U.S.C. 701(A) AND 702 (1964 ED., SUPP. IV).  BOTH QUESTIONS DIRECTLY
CONCERN THE EXTENT TO WHICH PERSONS HARMED BY AGENCY ACTION MAY
CHALLENGE ITS LEGALITY. 

/3/  OTHER ELEMENTS OF JUSTICIABILITY ARE, FOR INSTANCE, RIPENESS,
E.G., POE V. ULLMAN 367 U.S. 497 (1961), MOOTNESS, E.G., UNITED STATES
V. W. T. GRANT CO., 345 U.S. 629 (1953), AND THE POLICY AGAINST
FRIENDLY OR COLLUSIVE SUITS, E.G., CHICAGO & GRAND TRUNK R. CO. V.
WELLMAN, 143 U.S. 339 (1892); UNITED STATES V. JOHNSON, 319 U.S. 302
(1943).  "JUSTICIABILITY" IS ALSO THE TERM OF ART USED TO REFER TO THE
CONSTITUTIONAL NECESSITY THAT COURTS NOT DEAL WITH CERTAIN ISSUES LEST
THEY "INTRUDE INTO AREAS COMMITTED TO THE OTHER BRANCHES OF
GOVERNMENT."  FLAST, SUPRA, AT 95.  THE POLITICAL-QUESTION DOCTRINE HAS
ITS ANALOGUE IN THE SPHERE OF ADMINISTRATIVE LAW IN THE CONCEPT OF
NONREVIEWABILITY.  SEE, E.G., CHICAGO & SOUTHERN AIR LINES, INC. V.
WATERMAN STEAMSHIP CORP., 333 U.S. 103 (1948); SCHILLING V. ROGERS, 363
U.S. 666 (1960).  AND, OF COURSE, FEDERAL COURTS MAY NOT DECIDE
QUESTIONS OVER WHICH THEY LACK JURISDICTION, E.G., BROWN SHOE CO. V.
UNITED STATES, 370 U.S. 294, 305 (1962); AMERICAN FIRE & CASUALTY CO.
V. FINN, 341 U.S. 6, 17-18 (1951).  THUS, ON MANY GROUNDS OTHER THAN AN
ABSENCE OF STANDING, A COURT MAY DISMISS A LAWSUIT WITHOUT PROCEEDING
TO THE MERITS TO DETERMINE WHETHER THE PLAINTIFF PRESENTS A CLAIM UPON
WHICH RELIEF MAY BE GRANTED, AND, IF SO, WHETHER HE HAS BORNE HIS
BURDEN OF PROOF. 

/4/  IT IS TRUE, OF COURSE, THAT IN CERTAIN TYPES OF LITIGATION
PARTIES MAY PROPERLY REQUEST JUDICIAL RESOLUTION OF ISSUES NOT
"PRESENTED IN AN ADVERSARY CONTEXT."  SEE DAVIS, STANDING:  TAXPAYERS
AND OTHERS, 35 U.CHI.L.REV.  601, 607 (1968).  BUT IN MOST INSTANCES,
AMONG THEM PRIVATE CHALLENGES TO AGENCY ACTION, THE PLAINTIFF MUST
ESTABLISH HIS ADVERSENESS TO OBTAIN STANDING. 

/5/  THUS, FOR PURPOSE OF STANDING, IT IS SUFFICIENT THAT A
PLAINTIFF ALLEGE DAMNUM ABSQUE INJURIA, THAT IS, HE HAS ONLY TO ALLEGE
THAT HE HAS SUFFERED HARM AS A RESULT OF THE DEFENDANT'S ACTION. 
INJURY IN FACT HAS GENERALLY BEEN ECONOMIC IN NATURE, BUT IT NEED NOT
BE.  SEE, E.G., SCENIC HUDSON PRESERVATION CONF. V. FPC, 354 F.2D 608
(C.A. 2D CIR. 1965); OFFICE OF COMMUNICATION OF UNITED CHURCH OF CHRIST
V. FCC, 123 U.S.APP.D.C. 328, 359 F.2D 994 1966).  THE MORE
"DISTINCTIVE OR DISCRIMINATING" THE HARM ALLEGED AND THE MORE CLEARLY
IT IS LINKED TO THE DEFENDANT'S ACTION, THE MORE EASILY A PLAINTIFF MAY
MEET THE CONSTITUTIONAL TEST.  SEE L. JAFFE, JUDICIAL CONTROL OF
ADMINISTRATIVE ACTION 501 (1965).  THE PLAINTIFFS IN THE PRESENT CASES
ALLEGED DISTINCTIVE AND DISCRIMINATING HARM, OBVIOUSLY LINKED TO THE
AGENCY ACTION.  THUS, I DO NOT CONSIDER WHAT MUST BE ALLEGED TO SATISFY
THE STANDING REQUIREMENT BY PARTIES WHO HAVE SUSTAINED NO SPECIAL HARM
THEMSELVES BUT SUE RATHER AS TAXPAYERS OR CITIZENS TO VINDICATE THE
INTERESTS OF THE GENERAL PUBLIC. 

/6/  PAST DECISIONS OF THIS COURT INDICATE THAT A PERSON WHO HAS
SUFFERED INJURY IN FACT MEETS THE RELEVANT ARTICLE III REQUIREMENT. 
SEE, FOR EXAMPLE, FCC V. SANDERS BROS. RADIO STATION, 309 U.S. 470, 476
477 (1940); SCRIPPS-HOWARD RADIO, INC. V. FCC, 316 U.S. 4 (1942).  IN
THESE DECISIONS THE COURT PERMITTED PARTIES ECONOMICALLY HARMED BY
ADMINISTRATIVE ACTION TO CHALLENGE IT ALTHOUGH NO LEGAL INTEREST OF THE
PARTIES WAS FOUND TO HAVE BEEN INVADED BY THE ACTION.  THE COURT STATED
IN SCRIPPS-HOWEARD RADIO, SUPRA, AT 14, THAT "(THE COMMUNICATIONS ACT
OF 1934 DID NOT CREATE NEW PRIVATE RIGHTS.  THE PURPOSE OF THE ACT WAS
TO PROTECT THE PUBLIC INTEREST IN COMMUNICATIONS.  BY SEC. 402(B)(2)
CONGRESS GAVE THE RIGHT OF APPEAL TO PERSONS 'AGGRIEVED OR WHOSE
INTERESTS ARE ADVERSELY AFFECTED' BY COMMISSION ACTION."  ACCORDINGLY,
SINCE CONGRESS CANNOT EXPAND THE ARTICLE III JURISDICTION OF FEDERAL
COURTS, MUSKRAT V. UNITED STATES, 219 U.S. 346 (1911), IT FOLLOWS THAT
INJURY IN FACT RENDERS A PARTY ADVERSE UNDER THE CONSTITUTION.  CF. K.
DAVIS, 3 ADMINSTRATIVE LAW TREATISE 22.02, AT 211 (1958); JAFFE, SUPRA,
N. 5, AT 336. 

/7/  SEE, E.G., THE SECURITIES ACT OF 1933, WHICH PROVIDES THAT
"(ANY PERSON AGGRIEVED BY AN ORDER OF THE COMMISSION MAY OBTAIN A
REVIEW," 15 U.S.C. 77IA), AND THE FEDERAL POWER ACT, WHICH GRANTS
REVIEW TO "(ANY PARTY TO A PROCEEDING UNDER THIS CHAPTER AGGRIEVED BY
AN ORDER ISSUED BY THE COMMISSION IN SUCH PROCEEDING . . . . "  16
U.S.C. 825LB). 

/8/  SECTION 702 ALSO PROVIDES THAT "(ANY PERSON SUFFERING LEGAL
WRONG BECAUSE OF AGENCY ACTION . . . IS ENTITLED TO JUDICIAL REVIEW
THEREOF."  THOUGH A PERSON SUFFERING SUCH WRONG IS CLEARLY ENTITLED TO
REVIEW, HE NEED NOT SHOW THE EXISTENCE OF A LEGALLY PROTECTED INTEREST
TO ESTABLISH EITHER HIS STANDING OR HIS RIGHT TO REVIEW.  THE EXISTENCE
OF THAT INTEREST IS A QUESTION OF THE MERITS. 

/9/  THIS IS PARTICULARLY THE CASE WHEN THE PLAINTIFF IS THE ONLY
PARTY LIKELY TO CHALLENGE THE ACTION.  REFUSAL TO ALLOW HIM REVIEW
WOULD, IN EFFECT, COMMIT THE ACTION WHOLLY TO AGENCY DISCRETION, THUS
RISKING FRUSTRATION OF THE STATUTORY OBJECTIVES. 

/10/  IF THE ALLEGED LEGAL INTEREST IS CLEARLY FRIVOLOUS, OR PROOF
TO SUBSTANTIATE THE ALLEGED INJURY IN FACT IS WHOLLY LACKING, THE
PLAINTIFF CAN BE HASTENED FROM COURT BY SUMMARY JUDGMENT. 

/11/  E.G., TENNESSEE POWER CO. V. TVA, 306 U.S. 118 (1939);
ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS, INC. V. CAMP, 406
F.2D 837, 843 (C.A. 8TH CIR. 1969); BARLOW V. COLLINS, 398 F.2D 398,
401 (C.A. 5TH CIR. 1968). 

/12/  E.G., ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS,
INC. V. CAMP, SUPRA, AT 843; BARLOW V. COLLINS, SUPRA, AT 401-402;
HARRISON-HALSTED COMMUNITY GROUP, INC. V. HOUSING & HOME FINANCE
AGENCY, 310 F.2D 99 (C.A. 7TH CIR. 1962). 

/13/  IN CASES INVOLVING STATUTES THAT DO EXPRESSLY GRANT THE
PLAINTIFF A RIGHT OR REVIEW, THERE WOULD BE NO NEED FOR THE COURT'S
SECOND STANDING INQUIRY-- UNLESS IT SERVES TO PROVIDE A PREVIEW OF THE
MERITS. 

/14/  I WOULD APPLY MY VIEW THAT ALL EXAMINATION OF STATUTORY
LANGUAGE AND CONGRESSIONAL INTENT, AS THEY BEAR ON THE RIGHT OF THE
PLAINTIFF TO CHALLENGE AGENCY ACTION, SHOULD BE MADE ONLY IN THE
REVIEWABILITY CONTEXT EVEN IF THE PERTINENT STATUTORY MATERIAL SPEAKS
OF "STANDING" OR "STATUTORY AID TO STANDING."  STATUTORY MATERIALS, OF
COURSE, WOULD BE PROPERLY CONSULTED IN THE DETERMINATION OF STANDING IF
THEY PURPORT TO DEFINE WHAT CONSTITUTES INJURY IN FACT. 

HAROLD EDGAR ARGUED THE CAUSE FOR PETITIONERS PRO HAC VICE.  WITH
HIM ON THE BRIEFS WERE LEE A. ALBERT AND JONATHAN WEISS. 

PETER L. STRAUSS ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
RUCKELSHAUS, ALAN S. ROSENTHAL, AND NORMAN G. KNOPF. 
..END :




UNITED STATES V. WEBB, INC., 397 U.S. 179 


       UNITED STATES V. W.M. WEBB, INC., ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

          FIFTH CIRCUIT

        NO. 63.  ARGUED NOVEMBER 17, 1969-- DECIDED MARCH 3, 1970 


RESPONDENTS OWNED COMMERCIAL FISHING BOATS, THE FISHING BEING DONE
THROUGH ORAL CONTRACTUAL ARRANGEMENTS WITH BOAT CAPTAINS WHO STAFFED
AND PROVISIONED THE BOATS AND MANAGED THEIR DAY-TO-DAY OPERATION.  THE
CAPTAINS, WITHOUT AN EARNINGS GUARANTEE IF THEY FAILED TO CATCH FISH,
AGREED TO MAKE FISHING TRIPS FOR THE SEASON AND TO RETURN THE CATCHES
TO PLANTS DESIGNATED BY RESPONDENTS.  THE PLANTS PAID RESPONDENTS
ACCORDING TO THE VOLUME OF THE CATCH AND RESPONDENTS PAID THE CAPTAINS
AND CREWS ON THE SAME BASIS ACCORDING TO PREVIOUSLY NEGOTIATED TERMS. 
RESPONDENTS FILED TAX RETURNS AS EMPLOYERS UNDER THE FEDERAL INSURANCE
CONTRIBUTIONS ACT (FICA) AND THE FEDERAL UNEMPLOYMENT TAX ACT (FUTA),
AND PAID THE EMPLOYER'S SHARE OF THE TAXES DUE ON THE EARNINGS OF THE
CAPTAINS AND CREWS.  THOSE STATUTES DEFINE "EMPLOYEE" AS ANY INDIVIDUAL
WHO HAS EMPLOYEE STATUS UNDER "THE USUAL COMMON LAW RULES" APPLICABLE
TO A DETERMINATION OF THE MASTER-SERVANT RELATIONSHIP.  RESPONDENTS,
AFTER MAKING REFUND CLAIMS, SUED FOR REFUNDS IN THE DISTRICT COURT,
WHICH DETERMINED THAT THE CAPTAINS AND CREWS WERE NOT RESPONDENTS'
EMPLOYEES UNDER THOSE STATUTES, HOLDING THAT THE STATUTES' PRESCRIPTION
OF "COMMON LAW RULES" BARRED APPLICATION OF MARITIME STANDARDS.  THE
COURT OF APPEALS AFFIRMED.  HELD:  THE STATUS OF THE CAPTAINS AND CREWS
UNDER THE FICA AND FUTA MUST, IN THIS INSTANCE, BE DETERMINED UNDER THE
STANDARDS OF MARITIME LAW, WHICH IS THE COMMON LAW OF SEAFARING MEN. 
PP. 182-194. 

402 F.2D 956, REVERSED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS IN THIS CASE, WHICH WAS CONSOLIDATED BELOW, OWN BOATS
THAT ARE USED IN COMMERCIAL FISHING IN THE ATLANTIC OCEAN AND THE GULF
OF MEXICO.  THEIR FISHING IS CARRIED OUT THROUGH CONTRACTUAL
ARRANGEMENTS, SHAPED BY ESTABLISHED CUSTOM, WITH BOAT CAPTAINS, WHO MAN
THE BOATS AND MANAGE THEIR DAY-TO-DAY OPERATIONS.  THE QUESTION BEFORE
THE COURT IS WHETHER THE CAPTAINS AND CREWMEN OF THE BOATS ARE THE
"EMPLOYEES" OF THE RESPONDENTS WITHIN THE PROVISIONS OF THE FEDERAL
INSURANCE CONTRIBUTIONS ACT (FICA) /1/  AND THE FEDERAL UNEMPLOYMENT
TAX ACT (FUTA), /2/  WHICH IMPOSE TAXES ON EMPLOYERS TO FINANCE
GOVERNMENT BENEFITS FOR EMPLOYEES. 

        I 

DURING THE TAXABLE PERIODS INVOLVED HERE, /3/  THE RESPONDENTS'
VESSELS WERE ENGAGED IN FISHING FOR MENHADEN, A NONEDIBLE FISH THAT IS
PROCESSED AND USED FOR VARIOUS INDUSTRIAL PURPOSES.  THE OWNER OF EACH
VESSEL EQUIPPED THE VESSEL AND SECURED THE SERVICES OF AN EXPERIENCE
FISHERMAN TO BE CAPTAIN.  THE CAPTAIN THEN ASSEMBLED A CREW.  THE
CAPTAIN CUSTOMARILY SERVED ON THE SAME VESSEL FOR A FULL SEASON, AND
OCCASIONALLY FOR SEVERAL CONSECUTIVE SEASONS, ALTHOUGH THE ORAL
ARRANGEMENTS BETWEEN OWNERS AND CAPTAINS PERMITTED EITHER TO TERMINATE
THE RELATIONSHIP AT THE END OF ANY FISHING TRIP.  THE FISHING TRIPS
LASTED FROM ONE TO SEVERAL DAYS. 

THE VESSELS WERE OPERATED FROM DOCKING FACILITIES OWNED BY FISH
PROCESSING PLANTS, AND DISCHARGED THEIR CATCH AT THESE PLANTS UPON THE
COMPLETION OF EACH TRIP.  THE PLANTS PAID RESPONDENTS FOR THE FISH
ACCORDING TO THE VOLUME OF THE CATCH, AND RESPONDENTS PAID THE CAPTAINS
AND CREWS ON THE SAME BASIS, FOLLOWING TERMS THAT HAD BEEN NEGOTIATED
IN ADVANCE.  NEITHER CAPTAINS NOR CREWS WERE GUARANTEED ANY EARNINGS IF
THEY FAILED TO CATCH FISH.  WHILE RESPONDENTS DETERMINED THE PLANT TO
WHICH THE VESSELS WOULD REPORT AND GENERALLY WHERE AND WHEN THE FISHING
WOULD TAKE PLACE, THE CAPTAINS MANAGED THE DETAILS OF THE OPERATION OF
THE BOATS AND THE MANNER OF FISHING. 

RESPONDENTS FILED TAX RETURNS AS EMPLOYERS UNDER THE FICA AND THE
FUTA, AND PAID THE EMPLOYER'S SHARE OF THE TAXES DUE ON THE EARNINGS OF
THE CAPTAINS AND CREWS.  AFTER MAKING THE APPROPRIATE CLAIMS FOR
REFUNDS, THEY SUED FOR REFUNDS IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA.  THE DISTRICT COURT, SITTING WITHOUT A JURY,
DETERMINED AFTER TRIAL THAT THE CAPTAINS AND CREWS WERE NOT
RESPONDENTS' EMPLOYEES FOR THE PURPOSES OF THESE TAX STATUTES.  THE
TRIAL COURT NOTED THAT BOTH THE FICA AND THE FUTA DEFINE "EMPLOYEE" AS
ANY INDIVIDUAL WHO HAS EMPLOYEE STATUS UNDER "THE USUAL COMMON LAW
RULES" APPLICABLE TO A DETERMINATION OF THE MASTER-SERVANT
RELATIONSHIP.  IT FOUND "WITHOUT MERIT" THE GOVERNMENT'S CONTENTION
"THAT THE COMMON-LAW GOVERNING THE RELATIONSHIP OF THE TAXPAYER AND THE
FISHERMEN IN PURSUING FISHING VENTURES IN THE GULF OF MEXICO AND THE
ATLANTIC OCEAN IS THE GENERAL MARITIME LAW."  271 F.SUPP.  249, 257
(1967).  THE COURT FOUND FURTHER THAT THE DEGREE OF CONTROL EXERCISED
BY RESPONDENTS OVER THESE FISHING ACTIVITIES WAS NOT SUFFICIENT, UNDER
THE COMMON-LAW STANDARDS GOVERNING LAND-BASED OCCUPATIONS, TO CREATE
THE RELATIONSHIP OF EMPLOYER AND EMPLOYEE BETWEEN RESPONDENTS AND THE
CAPTAINS AND CREWS.  RESPONDENTS WERE THUS HELD ENTITLED TO THEIR
REFUNDS. 

ON APPEAL, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  IT
REVIEWED THE FACTS AND OBSERVED THAT "IT IS CLEAR THAT UNDER MARITIME
LAW THE CAPTAIN IS THE AGENT OF THE OWNER . . . AND THE CREW HANDS ARE
EMPLOYEES," AND THAT "(IF WE WERE FREE TO APPLY MARITIME LAW AS A TEST
OF THE EMPLOYER-EMPLOYEE RELATIONSHIP, WE WOULD REVERSE THE DECISION OF
THE DISTRICT COURT."  402 F.2D 956, 959 (1968) /4/  HOWEVER, THE COURT
OF APPEALS AGREED WITH THE DISTRICT COURT THAT THE STATUTES'
PRESCRIPTION OF "COMMON LAW RULES" BARRED APPLICATION OF MARITIME
STANDARDS. 

THIS CONCLUSION CONFLICTS WITH THE APPROACH OF THE COURT OF CLAIMS
IN CAPE SHORE FISH CO. V. UNITED STATES, 165 CT.CL. 630, 330 F.2D 961
(1964).  IN THAT DECISION THE COURT FOUND SCALLOP FISHERMEN, OPERATING
UNDER ARRANGEMENTS SIMILAR TO THOSE HERE, TO BE EMPLOYEES OF THE
SHIPOWNER FOR THE PURPOSES OF THESE STATUTES.  IT REACHED THIS
CONCLUSION BY APPLYING TO THE FACTS THE STANDARDS OF MARITIME LAW.  WE
GRANTED CERTIORARI IN THIS CASE, 394 U.S. 996 (1969), TO RESOLVE THIS
CONFLICT, AND TO CLARIFY THE APPLICATION TO MARITIME WORKERS OF THESE
IMPORTANT FEDERAL STATUTES. 

        II 

THE PARTIES AGREE THAT BOTH THE FICA AND THE FUTA IMPOSE TAXES ON
EMPLOYERS MEASURED BY THE COMPENSATION PAID TO EMPLOYEES, AND THAT IN
TERMS OF THIS CASE THE TWO STATUTES DEFINE "EMPLOYEE" INDENTICALLY.  IN
THE FICA "EMPLOYEE" IS DEFINED TO INCLUDE "ANY INDIVIDUAL WHO, UNDER
THE USUAL COMMON LAW RULES APPLICABLE IN DETERMING THE EMPLOYER
EMPLOYEE RELATIONSHIP, HAS THE STATUS OF AN EMPLOYEE," AND THE LANGUAGE
OF THE FUTA IS TO THE SAME EFFECT.  /5/  THESE DEFINITIONS WERE NOT
INCLUDED IN THE ORIGINAL SOCIAL SECURITY ACT AS IT WAS ADOPTED IN 1935,
WHICH DEFINED "EMPLOYEE" MERELY BY SPECIFYING THAT IT "INCLUDES AN
OFFICER OF A CORPORATION,"  /6/  BUT WERE ADDED BY AMENDMENT IN 1948. 
WE MUST CONSIDER THE EVENTS THAT PROMPTED THE AMENDMENT. 

IN 1935 THE DRAFTSMEN OF THE SOCIAL SECURITY ACT APPARENTLY THOUGHT
IT UNNECESSARY TO ELUCIDATE THE MEANING OF "EMPLOYEE" BECAUSE THEY
ASSUMED THAT THE TERM, AS IT WAS APPLIED TO VARYING FACTUAL SITUATIONS,
WOULD BE GIVEN THE "USUAL" MEANING IT BORE AT COMMON LAW.  SEE S. REP.
NO. 1255, 80TH CONG., 2D SESS., 3-4 (1948).  HOWEVER, OVER THE YEARS OF
APPLYING THE ACT TO A MYRIAD OF WORK RELATIONSHIPS, THE LOWER FEDERAL
COURTS DEVELOPED SOMEWHAT VARYING APPROACHES, CERTAIN COURTS RELYING
MORE HEAVILY ON COMMON-LAW PRECEDENTS AND OTHERS ATTEMPTING TO DISCERN
A SPECIAL MEANING FOR THE TERM FROM THE PURPOSES OF THE LEGISLATION. 
/7/  IN ADDITION, THE COURTS TENDED TO LOOK TO LOCAL PRECEDENTS TO
DETERMINE THE COMMON-LAW STANDARDS, PRODUCING DIFFERENT RESULTS FOR
SIMILAR FACTUAL SITUATIONS IN VARIOUS PARTS OF THE COUNTRY.  /8/  THIS
DIVERGENCE OF VIEWS LED THIS COURT, IN 1947, TO RENDER TWO DECISIONS IN
AN ATTEMPT TO CLARIFY THE GOVERNING STANDARDS.  UNITED STATES V. SILK,
331 U.S. 704; BARTELS V. BIRMINGHAM, 332 U.S. 126. 

IN SILK, THE COURT UPHELD THE LOWER COURTS' DETERMINATION THAT
CERTAIN TRUCK DRIVERS WERE, UNDER THE CIRCUMSTANCES, INDEPENDENT
CONTRACTORS RATHER THAN EMPLOYEES, BUT IT UPSET A SIMILAR RULING WITH
RESPECT TO A GROUP OF MEN WHO UNLOADED COAL FROM RAILROAD CARS.  IN
BARTELS THE COURT, REVERSING THE COURT OF APPEALS, HELD THAT THE
MEMBERS OF CERTAIN DANCE BANDS WERE NOT EMPLOYEES OF THE OWNERS OF THE
DANCE HALLS AT WHICH THEY WERE ENGAGED, DESPITE CONTRACTUAL PROVISIONS
CHARACTERIZING THEM AS EMPLOYEES.  WHILE THE COURT'S OPINIONS IN THESE
CASES STRESSED MANY OF THE FACTORS THAT HAD BEEN IMPORTANT IN COMMON
LAW DETERMINATIONS OF EMPLOYEE STATUS, THEY ALSO CONTAINED LANGUAGE
THAT COULD BE READ TO DETACH THE QUESTION OF STATUTORY COVERAGE FROM
THE COMMON-LAW TESTS.  /9/  THE COURT STATED, IN BARTELS, THAT "IN THE
APPLICATION OF SOCIAL LEGISLATION EMPLOYEES ARE THOSE WHO AS A MATTER
OF ECONOMIC REALITY ARE DEPENDENT UPON THE BUSINESS TO WHICH THEY
RENDER SERVICE."  332 U.S., AT 130. 

ACTING UPON THIS LANGUAGE, THE EXECUTIVE AGENCIES SET ABOUT
REPLACING THEIR ORIGINAL REGULATION, WHICH HAD DEFINED THE EMPLOYMENT
RELATION IN TERMS OF THE INCIDENTS OF EMPLOYMENT AT COMMON LAW, /10/
WITH A NEW REGULATION THAT WOULD EMBODY THE TEST OF "ECONOMIC
REALITY."  /11/  HOWEVER, THE PROPOSED NEW REGULATION NEVER TOOK
EFFECT.  WITHIN TWO MONTHS OF ITS ANNOUNCEMENT, A RESOLUTION WAS
INTRODUCED IN BOTH THE HOUSE OF REPRESENTATIVES AND THE SENATE CALLING
FOR "A REASSERTION OF CONGRESSIONAL INTENT REGARDING THE APPLICATION OF
THE ACT."  S. REP. NO. 1255, SUPRA, AT 7.  THIS RESOLUTION, WHICH WAS
FINALLY PASSED OVER THE PRESIDENT'S VETO, ADDED TO THE STATUTES THE
PRESENT DEFINITIONS OF "EMPLOYEE."  /12/ 

THE REPORT OF THE SENATE FINANCE COMMITTEE ON THE RESOLUTION MAKES
CLEAR A CONGRESSIONAL PURPOSE TO DISAPPROVE THE PROPOSED REGULATION AND
TO REAFFIRM THAT DETERMINATIONS OF EMPLOYEE STATUS WERE TO BE BASED ON
THE TRADITIONAL LEGAL TESTS.  THE COMMITTEE SEEMS TO HAVE THOUGHT THAT
THE SILK AND BARTELS DECISIONS HAD APPLIED TRADITIONAL COMMON-LAW
STANDARDS, DESPITE THE LANGUAGE IN THE OPINIONS SUGGESTING A LESS
CONSTRICTIVE APPROACH.  HOWEVER, NOTING THAT THE TREASURY DEPARTMENT
CLAIMED SUPPORT IN THOSE DECISIONS FOR ITS CONTEMPLATED NEW DEPARTURE,
THE COMMITTEE DECLARED:  "BUT IF IT BE CONTENDED THAT THE SUPREME COURT
HAS INVENTED NEW LAW FOR DETERMINING AN 'EMPLOYEE' UNDER THE SOCIAL
SECURITY SYSTEM IN THESE CASES, THEN THE PURPOSE OF THIS RESOLUTION IS
TO REESTABLISH THE USUAL COMMON-LAW RULES, REALISTICALLY APPLIED." 
ID., AT 2. 

THE CAUSES OF CONGRESSIONAL DISSATISFACTION WITH THE PROPOSED
REGULATION WERE TWOFOLD.  AS A FISCAL MATTER, THE COMMITTEE CITED
TESTIMONY THAT THE NEW REGULATION WOULD EXTEND SOCIAL SECURITY BENEFITS
TO BETWEEN 500,000 AND 750,000 NEW WORKERS, WHO HAD NOT BEEN COVERED
PREVIOUSLY AND HAD NOT CONTRIBUTED TO THE TRUST FUND FROM WHICH
BENEFITS WOULD BE PAID, THUS ENDANGERING THE INTEGRITY OF THE FUND. 
MORE GENERALLY, THE COMMITTEE WAS FEARFUL OF THE UNCERTAINTY THAT WOULD
BE CREATED BY THE NEW REGULATION, AND THE DISCRETION IT WOULD GIVE TO
THE EXECUTIVE AGENCIES IN DETERMINING THE APPLICABILITY OF THE
STATUES.  THE REPORT STATED: 

"IN A WORD, BY UNBOUNDED AND SHIFTING CRITERIA, (THE PROPOSED
REGULATION) WOULD CONFER IN THOSE ADMINISTERING THE SOCIAL SECURITY ACT
FULL DISCRETION TO INCLUDE, OR TO EXCLUDE, FROM THE COVERAGE OF THE ACT
ANY PERSON WHOM THEY MIGHT DECIDE TO BE, OR MIGHT DECIDE NOT TO BE, AN
'EMPLOYEE'; AND LIKE DISCRETION TO FASTEN TAX LIABILITIES AND THE
ADMINISTRATIVE DUTIES AND COSTS OF COMPLIANCE WITH THE ACT UPON ANY
PERSON WHOM THEY MIGHT DECIDE TO BE AN 'EMPLOYER.' 

        .          .          .        . 

     "THE PROPOSED REGULATION DISCARDS THE COMMON-LAW RULES FOR

  DISTINGUISHING THE EMPLOYER-EMPLOYEE RELATIONSHIP DISTILLED FROM

  MANY DECISIONS BY MANY COURTS OUT OF MANY INSIGHTS OF REAL

  SITUATIONS, FOR A NEW RULE OF NEBULOUS CHARACTER. 

      "UNDER THE PROPOSED REGULATION AN 'EMPLOYEE' IS 'AN
INDIVIDUAL

  IN A SERVICE RELATIONSHIP WHO IS DEPENDENT AS A MATTER OF

  ECONOMIC REALITY UPON THE BUSINESS TO WHICH HE RENDERS SERVICE

  AND NOT UPON HIS OWN BUSINESS AS AN INDEPDENDENT CONTRACTOR.' 

     "THE RULE, OBVIOUSLY, WILL NOT SERVE TO MAKE THE NECESSARY

  DISTINCTIONS.  WHO, IN THIS WHOLE WORLD ENGAGED IN ANY SORT OF

  SERVICE RELATIONSHIP, IS NOT DEPENDENT AS A MATTER OF ECONOMIC

  REALITY ON SOME OTHER PERSON?  . . .

        .          .          .          . 

     "(THE PROPOSED REGULATION CONCERNS ITSELF MAINLY, AS WAS
STATED

  TO YOUR COMMITTEE BY A WITNESS AT THE HEARINGS:  '  . . . WITH

  MAKING IT ABUNDANTLY CLEAR THAT ON VIRTUALLY NO STATE OF FACTS

  MANY ANYONE BE CERTAIN WHETHER OR NOT HE HAS A TAX LIABILITY

  UNTIL THE COMMISSIONER HAS MADE UP HIS MIND ABOUT IT.'"  ID., AT

  7, 10, 11. 

THE COMMITTEE STATED THAT, IN CONTRAST TO THE PROPOSED REGULATION,
WHOSE "BASIC PRINCIPLE . . . IS A DIMENSIONLESS AND AMORPHOUS
ABSTRUCTION," THE EXISTING REGULATION WAS "NOT DEVOID OF UNCERTAINTY,
BUT ITS BASIS IS IN ESTABLISHED STANDARDS OF LAW WHICH FRAME AND LIMIT
ITS APPLICATION."  ID., AT 12.  THE CONCLUSIONS STATED IN THE HOUSE
REPORT WERE SIMILAR.  H. R. REP. NO. 1319, 80TH CONG., 2D SESS.
(1948).  /13/  BY THE RESOLUTION, CONGRESS UNEQUIVOCALLY TIED THE
COVERAGE OF THESE TAX PROVISIONS TO THE BODY OF DECISIONAL LAW DEFINING
THE EMPLOYER-EMPLOYEE RELATIONSHIP IN VARIOUS OCCUPATIONS. 

IN NONE OF THE DISCUSSIONS OF THE 1948 RESOLUTION WAS THERE ANY
DISCUSSION OF MARITIME EMPLOYEES.  THE RESPONDENTS ARGUE THAT, BY
FAILING TO MAKE SPECIFIC PROVISION FOR THE APPLICATION OF MARITIME LAW
TO SEAGOING OCCUPATIONS, CONGRESS IMPLIEDLY DECREED THAT THOSE
OCCUPATIONS SHOULD BE GAUGED BY THE STANDARDS OF THE "COMMON LAW"
APPLICABLE TO LAND-BASED ACTIVITIES.  THEY RELY IN PART ON THE FACT
THAT THE PHRASE "COMMON LAW" IS SOMETIMES USED IN CONTRADISTINCTION TO
THE "MARITIME LAW" TRADITIONALLY APPLIED IN COURTS OF ADMIRALTY, AND
THEY ALSO POINT TO THE FACT THAT THE SENATE REPORT STRESSED THE DEGREE
OF THE EMPLOYER'S CONTROL OVER THE EMPLOYEE'S WORK AS CENTRAL TO THE
COMMITTEE'S UNDERSTANDING OF THE COMMON-LAW TESTS OF EMPLOYMENT.  THE
SENATE REPORT QUOTED WITH APPROVAL THE THEN-EXISTING REGULATION,
SUBSTANTIALLY IDENTICAL TO THE ONE NOW IN EFFECT, /14/  WHICH STATED: 

     "EVERY INDIVIDUAL IS AN EMPLOYEE IF THE RELATIONSHIP BETWEEN

HIM AND THE PERSON FOR WHOM HE PERFORMS SERVICES IS THE LEGAL

  RELATIONSHIP OF EMPLOYER AND EMPLOYEE. 

     "GENERALLY SUCH RELATIONSHIP EXISTS WHEN THE PERSON FOR WHOM

SERVICES ARE PERFORMED HAS THE RIGHT TO CONTROL AND DIRECT THE

  INDIVIDUAL WHO PERFORMS THE SERVICES, NOT ONLY AS TO THE RESULT

  TO BE ACCOMPLISHED BY THE WORK BUT ALSO AS TO THE DETAILS AND

  MEANS BY WHICH THAT RESULT IS ACCOMPLISHED.  THAT IS, AN EMPLOYEE

  IS SUBJECT TO THE WILL AND CONTROL OF THE EMPLOYER NOT ONLY AS TO

  WHAT SHALL BE DONE BUT HOW IT SHALL BE DONE."  S. REP. NO. 1255,

  SUPRA, AT 3. 

RESPONDENTS ARGUE THAT THIS LANGUAGE INDICATES A CONGRESSIONAL INTENT
THAT, WHERE THE MARITIME NATURE OF A VOCATION MAKES IMPRACTICABLE THE
DEGREE OF CONTROL GENERALLY EXERCISED BY LAND-BASED EMPLOYERS OVER
THEIR EMPLOYEES, THE LAND-BASED STANDARDS MUST NEVERTHELESS BE APPLIED,
WITH THE RESULT THAT NO "EMPLOYMENT" EXISTS FOR THE PURPOSES OF THOSE
STATUTES. 

        III 

WE DO NOT THINK CONGRESS INTENDED THE ANOMALOUS RESULT OF HAVING
MARITIME ACTIVITIES SUBJECT TO STANDARDS, FOR SOCIAL SECURITY TAX
PURPOSES, OTHER THAN THOSE THAT ARE RELEVANT TO SEAFARING ENTERPRISES. 
SUCH A RESULT IS NOT NECESSARY TO ACCOMPLISH THE DUAL CONCERNS
UNDERLYING THE 1948 AMENDMENT.  APPLICATION OF MARITIME STANDARDS TO
DETERMINE THE STATUS OF MEMBERS OF FISHING VENTURES WILL NOT OPEN BRAND
NEW AREAS OF SOCIAL SECURITY COVERAGE.  TO THE CONTRARY, THE EMPLOYEE
STATUS OF CAPTAINS AND CREWMEN ENGAGED IN FISHING OPERATIONS SIMILAR TO
THESE IS SUPPORTED BY A TREASURY DEPARTMENT INTERPRETATION, APPLYING
MARITIME STANDARDS, THAT WAS ISSUED IN 1940, IMMEDIATELY AFTER MARITIME
EMPLOYEES WERE FIRST BROUGHT WITHIN THE COVERAGE OF THE SOCIAL SECURITY
ACT BY AMENDMENT IN 1939.  S.S.T. 387, 1940-1 CUM.BULL.  192; SEE
SOCIAL SECURITY ACT AMENDMENTS OF 1939, SECS. 606, 614, 53 STAT. 1383,
1392, AS AMENDED, 26 U.S.C. 3121(B), 3306(C).  THIS RULING, WHICH THE
SOCIAL SECURITY ADMINISTRATION HAS ACCEPTED FOR PURPOSES OF PAYING
BENEFITS TO CLAIMANTS, HAD EXISTED FOR EIGHT YEARS BEFORE CONGRESS
ADDED THE PRESENT DEFINITIONS OF "EMPLOYEE" TO THE STATUTES.  IT WAS
NOT MENTIONED AT THE TIME OF THE 1948 AMENDMENT.  SINCE THE RULING
REPRESENTED THE ACCEPTED VIEW OF BOTH THE TAXING AND PAYING AGENCIES,
CONGRESS COULD HAVE HAD NO CONCERN THAT PAYMENT OF BENEFITS TO MARITIME
EMPLOYEES WOULD CONSTITUTE AN UNCOMPENSATED DRAIN ON THE SOCIAL
SECURITY FUND.  /15/ 

MORE IMPORTANT, THE CHIEF CONCERN BEHIND THE 1948 AMENDMENT--
AVOIDING THE UNCERTAINTY OF THE PROPOSED "ECONOMIC REALITY"  TEST-- IS
WHOLLY SATISFIED IF SEAFARING WORK RELATIONSHIPS ARE TESTED AGAINST THE
STANDARDS OF MARITIME, RATHER THAN LAND-BASED, DECISIONAL LAW. 
CONGRESS' FEARFULNESS OF THE "NEBULOUS" NATURE OF THE PROPOSED
REGULATION INDICATES THAT IT USED THE PHRASE "USUAL COMMON LAW RULES"
IN A GENERIC SENSE, TO MEAN THE STANDARDS DEVELOPED BY THE COURTS
THROUGH YEARS OF ADJUDICATION, RATHER THAN IN A TECHNICAL SENSE TO MEAN
THOSE STANDARDS DEVELOPED BY "COMMON LAW" COURTS AS OPPOSED TO COURTS
OF ADMIRALTY.  MARITIME LAW, THE COMMON LAW OF SEAFARING MEN, PROVIDES
AN ESTABLISHED NETWORK OF RULES AND DISTINCTIONS THAT ARE PRACTICALLY
SUITED TO THE NECESSITIES OF THE SEA, JUST AS LAND-BASED DECISIONAL LAW
PROVIDES A BODY OF RULES ADAPTED TO THE VARIOUS FORMS OF DOMESTIC
EMPLOYMENT.  THE GOAL OF MINIMIZING UNCERTAINTY CAN BE ACCOMPLISHED, IN
THE MARITIME FIELD, BY RESORT TO THE "USUAL" RULES OF MARITIME
JURISPRUDENCE.  /16/ 

THIS CONCLUSION IS NOT WEAKENED BY THE EMPHASIS GIVEN, BOTH IN THE
SENATE REPORT AND IN THE REGULATION, TO THE FACTOR OR CONTROL.  CONTROL
IS PROBABLY THE MOST IMPORTANT FACTOR UNDER MARITIME LAW, /17/  JUST AS
IT IS UNDER THE TESTS OF LAND-BASED EMPLOYEMENT.  IT MAY BE TRUE THAT,
IN MOST MARITIME RELATIONSHIPS, THE WORKERS ENJOY DISCRETION THAT IS
UNUSUALLY BROAD IF MEASURED BY LAND-BASED STANDARDS-- A DISCRETION
DICTATED BY THE SEAFARING NATURE OF THE ACTIVITY.  HOWEVER, EXCEPT
WHERE THERE IS NEARLY TOTAL RELINQUISHMENT OF CONTROL THROUGH A BARE
BOAT, OR DEMISE, CHARTER, THE OWNER MAY NEVERTHLESS BE CONSIDERED,
UNDER MARITIME LAW, TO HAVE SUFFICIENT CONTROL TO BE CHARGED WITH THE
DUTIES OF AN EMPLOYER.  SEE, E.G., THE NORLAND, 101 F.2D 967 (C.A. 9TH
CIR. 1939); G. GILMORE & C, BLACK, THE LAW OF ADMIRALTY SEC. 4-23
(1957).  CONGRESS' STRESS ON THE IMPORTANCE OF CONTROL REFLECTS THE
PRIMACY OF THAT FACTOR IN THE RULES GOVERNING THE MOST COMMON, LAND
BASED VOCATIONS, /18/  WHICH WERE CERTINLY FOREMOST IN THE
CONGRESSIONAL MIND AT THE TIME OF THE 1948 AMENDMENT.  IT DOES NOT
PRECLUDE THE APPLICATION, IN DIFFERENT AREAS, OF DECISIONAL RULES THAT
VARY IN THE PRECISE DEGREE OF CONTROL THAT IS REQUIRED.  CF. DEECY
PRODUCTS CO. V. WELCH, 124 F.2D 592, 598-599 (C.A. 1ST CIR. 1941);
MCGUIRE V. UNITED STATES, 349 F.2D 644 (C.A. 9TH CIR. 1965).  /19/ 

THE GUIDELINES IN THE REGULATION ALSO ALLOW FOR SUCH FLEXIBILITY, AS
IS ATTESTED BY THE EXISTENCE, FOR NEARLY 30 YEARS, OF THE TREASURY
RULING, S.S.T. 387, CONFIRMING THE EMPLOYEE STATUS OF FISHERMEN SUCH AS
THOSE INVOLVED HERE.  NOW, AS IN 1948, THE REGULATION PROCEEDS, AFTER
THE LANGUAGE ALREADY QUOTED, TO ELABORATE SOME OF THE FACTORS OTHER
THAN CONTROL THAT MAY BE IMPORTANT: 

"THE RIGHT TO DISCHARGE IS ALSO AN IMPORTANT FACTOR INDICATING THAT
THE PERSON POSSESSING THAT RIGHT IS AN EMPLOYER.  OTHER FACTOS
CHARACTERISTIC OF AN EMPLOYER, BUT NOT NECESSARILY PRESENT IN EVERY
CASE, ARE THE FURNISHING OF TOOLS AND THE FURNISHING OF A PLACE TO
WORK, TO THE INDIVIDUAL WHO PERFORMS THE SERVICES."  36 CFR 31.3121(D)
1(C)(2).  /20/ IT IS CLEAR THAT THIS BRIEF SKETCH OF RELEVANT FACTORS
CANNOT BE INTENDED TO PROVIDE A WORKABLE TEST, COMPLETE IN ITSELF,
DISPLACING THE COMPLEX OF COMMON-LAW RULES CONGRESS SO CAREFULLY TRIED
TO PRESERVE.  RATHER, THE REGULATION PROVIDES A SUMMARY OF THE
PRINCIPLES OF THE COMMON LAW, INTENDED AS AN INITIAL GUIDE FOR THE
DETERMINATION, REQUIRED BY THE FIRST SENTENCE OF THE REGULATION,
WHETHER A RELATIONSHIP "IS THE LEGAL RELATIONSHIP OF EMPLOYER AND
EMPLOYEE."  THE TRUST OF BOTH STATUTE AND REGULATION IS THAT THE
STANDARDS THAT ARE TO GOVERN IN ANY FIELD ARE THOSE THAT THE COURTS
CUSTOMARILY APPLY TO DEFINE THIS "LEGAL RELATIONSHIP."  /21/ 

WE CONCLUDE THAT THE COURT OF APPEALS ERRED IN DECLINING TO JUDGE
THE STATUS OF THE CAPTAINS AND CREWMEN AGAINST THE STANDARDS OF
MARITIME LAW.  ACCORDINGLY, THE JUDGMENT IS REVERSED, AND THE CASE IS
REMANDED TO THAT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  26 U.S.C. 3101 ET SEQ. 

/2/  26 U.S.C. 3301 ET SEQ. 

/3/ THE DISTRICT COURT FOUND THAT THE PERIODS WERE, FOR DIFFERENT
RESPONDENTS, JANUARY 1, 1956, THROUGH DECEMBER 31, 1956, AND JULY 1,
1957, THROUGH DECEMBER 1, 1958. 

/4/  WE ARE NOT CALLED UPON TO, AND DO NOT, INTIMATE ANY VIEW ON THE
CORRECTNESS OF THE COURT OF APPEALS' STATEMENT ON THIS SCORE. 

/5/  THE DEFINITIONS PROVIDE: 

"FOR PURPOSES OF (THE FICA), THE TERM 'EMPLOYEE' MEANS-- (1) ANY
OFFICER OF A CORPORATION; OR (2) ANY INDIVIDUAL WHO, UNDER THE USUAL
COMMON LAW RULES APPLICABLE IN DETERMINING THE EMPLOYER-EMPLOYEE
RELATIONSHIP, HAS THE STATUS OF AN EMPLOYEE; OR (3) (ANY MEMBER OF
SEVERAL SPECIFIC OCCUPATIONS, NOT INCLUDING FISHING, WHEN CERTAIN
CONDITIONS ARE SATISFIED)."  26 U.S.C. 3121(D). 

"FOR PURPOSES OF (THE FUTA), THE TERM 'EMPLOYEE' INCLUDES AN OFFICER
OF A CORPORATION, BUT SUCH TERM DOES NOT INCLUDE-- (1) ANY INDIVIDUAL
WHO, UNDER THE USUAL COMMON LAW RULES APPLICABLE IN DETERMINING THE
EMPLOYER-EMPLOYEE RELATIONSHIP, HAS THE STATUS OF AN INDEPENDENT
CONTRACTOR, OR (2) ANY INDIVIDUAL (EXCEPT AN OFFICER OF A CORPORATION)
WHO IS NOT AN EMPLOYEE UNDER SUCH COMMON LAW RULES."  26 U.S.C.
3306(I). 

/6/  SOCIAL SECURITY ACT SEC. 1101(A)(6), 49 STAT. 647.  THE
LANGUAGE OF SEC. 1101(A)(6) WAS CARRIED OVER TO SECS. 1426(C) AND
1607(H) OF THE INTERNAL REVENUE CODE OF 1939, THE PREDECESSORS OF
PRESENT SECS. 3121(D) AND 3306(I) OF TITLE 26, RESPECTIVELY.  SEE 53
STAT. 178, 188. 

/7/  COMPARE, E.G., JONES V. GOODSON, 121 F.2D 176 (C.A. 10TH CIR.
1941); RADIO CITY MUSIC HALL CORP. V. UNITED STATES, 135 F.2D 715 (C.A.
2D CIR. 1943); UNITED STATES V. MUTUAL TRUCKING CO., 141 F.2D 655 (C.A.
6TH CIR. 1944); MCGOWAN V. LAZEROFF, 148 F.2D 512 (C.A. 2D CIR. 1945);
UNITED STATES V. WHOLESALE OIL CO., 154 F.1D 745 (C.A. 10TH CIR. 1946);
WITH UNITED STATES V. VOGUE, INC., 145 F.2D 609 (C.A. 4TH CIR. 1944);
UNITED STATES V. ABERDEEN AERIE, 148 F.2D 655 (C.A. 9TH CIR. 1945);
GRACE V. MAGRUDER, 80 U.S.APP.D.C. 53, 148 F.2D 679 (1945). 

/8/  SEE S. REP. NO. 1255, SUPRA, AT 6. 

/9/  IN SILK, THE COURT SAID: "AS THE FEDERAL SOCIAL SECURITY
LEGISLATION IS AN ATTACK ON RECOGNIZED EVILS IN OUR NATIONAL ECONOMY, A
CONSTRICTED INTERPRETATION OF THE PHRASING BY THE COURTS WOULD NOT
COMPORT WITH ITS PURPOSE . . . .

      .          .          .          . 

". . . WHEN (THE PROBLEM OF DIFFERNETIATING BETWEEN EMPLOYEE AND
INDEPENDENT CONTRACTOR) AROSE IN THE ADMINISTRATION OF THE NATIONAL
LABOR RELATIONS ACT, WE POINTED OUT THAT THE LEGAL STANDARDS TO FIX
RESPONSIBILITY FOR ACTS OF SERVANTS, EMPLOYEES OR AGENTS HAD NOT BEEN
REDUCED TO SUCH CERTAINTY THAT IT COULD BE SAID THERE WAS 'SOME SIMPLE,
UNIFORM AND EASILY APPLICABLE TEST.'  THE WORD 'EMPLOYEE,' WE SAID, WAS
NOT THERE USED AS A WORD OF ART, AND ITS CONTENT IN ITS CONTEXT WAS A
FEDERAL PROBLEM TO BE CONSTRUED 'IN THE LIGHT OF THE MISCHIEF TO BE
CORRECTED AND THE END TO BE ATTAINED.'  WE CONCLUDED THAT, SINCE THAT
END WAS THE ELIMINATION OF LABOR DISPUTES AND INDUSTRIAL STRIFE,
EMPLOYEES' INCLUDED WORKERS WHO WERE SUCH AS A MATTER OF ECONOMIC
REALITY . . . . WE REJECTED THE TEST OF THE 'TECHNICAL CONCEPTS
PERTINENT TO AN EMPLOYER'S LEGAL RESPONSIBILITY TO THIRD PERSONS FOR
ACTS OF HIS SERVANTS.'  . . . LABOR BOARD V. HEARST PUBLICATIONS, 322
U.S. 111, 120, 123, 124, 128, 129, 131. 

"APPLICATION OF THE SOCIAL SECURITY LEGISLATION SHOULD FOLLOW THE
SAME RULE THAT WE APPLIED TO THE NATIONAL LABOR RELATIONS ACT IN THE
HEARST CASE."  331 U.S., AT 712-714. 

/10/  1 FED.REG., PT. 2, AT 1764 (1936), PROMULGATED NOVEMBER 9,
1936 (TREASURY DEPARTMENT); 2 FED.REG., PT. 1, AT 1276 (1937),
PROMULGATED JULY 20, 1937 (SOCIAL SECURITY BOARD). 

/11/  12 FED.REG.  7966 (1947). 

/12/  H. J. RES. 296, 62 STAT. 438; SEE H. R. DOC. NO. 711, 80TH
CONG., 2D SESS. (VETO MESSAGE OF PRESIDENT TRUMAN).  THIS 1948
AMENDEMENT PUT THE DEFINITIONS IN BOTH STATUTES IN THE NEGATIVE FORM
NOW FOUND IN 26 U.S.C. 3306(I), SEE N. 5, SUPRA.  THE SOCIAL SECURITY
ACT AMENDMENTS OF 1950 RESTYLED THE PREDECESSOR OF SEC. 3121(D), GIVING
IT THE FORM NOW POSSESSED BY THAT PROVISION, WITHOUT CHANGING THE
APPLICABLE PRINCIPLES EXCEPT TO EXTEND COVERAGE TO SPECIFIED CLASSES OF
WORKERS IRRESPECTIVE OF THEIR COMMON-LAW STATUS.  SEC. 205, 64 STAT.
536; SEE H. R. REP. NO. 2771, 81ST CONG., 2D SESS. 104 (1950); CF. S.
REP. NO. 1669; 81ST CONG., 2D SESS., 17-18 (1950); H. R. REP. NO. 1300,
81ST CONG., 1ST SESS., 80-91, 189-207 (1949).     /13/  IN A REPORT
PUBLISHED JUST TWO WEEKS BEFORE THE ENACTMENT OF THE RESOLUTION
(COMMENTING ON H. R. 6777, A BILL THAT CONTAINED THE SAME AMENDMENT
ULTIMATELY ACCOMPLISHED BY THE RESOLUTION), THE HOUSE COMMITTEE ON WAYS
AND MEANS STATED: "OUR FAILURE TO ACT MAY BE FURTHER CONSTRUED AS
CONFERRING UPON THE ADMINISTRATIVE AGENCIES AND THE COURTS AN UNBRIDLED
LICENSE TO SAY, AT WILL, WHETHER AN INDIVIDUAL IS AN EMPLOYEE OR AN
INDEPENDENT CONTRACTOR . . . .

        .          .          .     . 

"(THE BASIC, CONTROLLING FACTOR IS WHETHER THE POLICY OF THE
CONGRESS SHALL BE TO COVER AS EMPLOYEES ONLY THOSE WHO ARE EMPLOYEES
UNDER THE COMMON-LAW RULE, OR TO COVER A BROADER CLASS OF INDIVIDUALS
UNDER SOME NEBULOUS HYPOTHESIS WITH NO BOUNDS TO ITS APPLICATION."  H.
R. REP. NO. 2168, 80TH CONG., 2D SESS., 9 (1948). 

/14/  26 CFR 31.3121(D)-1-(C). 

/15/  SUBSEQUENT AMENDMENTS TO THE SOCIAL SECURITY LAWS MAKE IT NOW
EVEN CLEARER THAT CLASSIFICATION OF SOME MARITIME WORKERS AS EMPLOYEES
WILL NOT THREATEN THE SOCIAL SECURITY FUND.  THE SOCIAL SECURITY ACT
AMENDMENTS OF 1950 EXTENDED BENEFITS COVERAGE TO THE SELF-EMPLOYED FOR
THE FIRST TIME.  64 STAT. 502, 540; SEE H. R. REP. NO. 1300, 81ST
CONG., 1ST SESS., 9-10 (1949).  BENEFITS FOR THE SELF-EMPLOYED ARE
FINANCED BY TAXES PAID BY THEM UNDER THE SELF-EMPLOYMENT CONGRIBUTIONS
ACT, 26 U.S.C. 1401 ET SEQ.; SEE H. R. REP. NO 1300, SUPRA, AT 135-145;
S. REP. NO. 1669, 81ST CONG., 2D SESS., 153-166 (1950).  THEREFORE, THE
CAPTAINS AND CREWMEN ARE ELIGIBLE FOR SOCIAL SECURITY BENEFITS WHETHER
THEY ARE CONSIDERED EMPLOYEES OR SELF-EMPLOYED. 

/16/  A CONCLUSION THAT MARITIME STANDARDS COULD NOT BE APPLIED
MIGHT FRUSTRATE CONGRESS' EVIDENT EXPECTATION THAT THE FICA AND FUTA
LEGISLATION WOULD APPLY TO SEAMEN, AND SPECIFICALLY TO FISHERMEN.  AS
NOTED ABOVE, THE 1939 AMENDMENTS EXTENDED THE STATUTES TO COVER
MARITIME EMPLOYEES.  ADDITIONALLY, 26 U.S.C. 3121(B)(4) PROVIDES AN
EXEMPTION FOR SERVICE BY ALIENS ON FOREIGN VESSELS, AND SEC.
3306(C)(17) EXEMPTS FISHERMEN ON VESSELS THAT DO NOT EXCEED 10 TONS IN
DISPLACEMENT.  THESE PROVISIONS RAISE THE INFERENCE THAT FISHERMEN ON
LARGER VESSELS WERE EXPECTED TO BE COVERED, UNDER THE GENERAL "COMMON
LAW RULES" PROVISION.  HOWEVER, IF SHIPOWNERS WERE RELIEVED OF THE
EMPLOYERS' TAX LIABILITIES UNLESS THEIR RELATIONSHIP WITH THE CAPTAINS
AND CREWS WERE OF THE SORT THAT WOULD CONSTITUTE AN EMPLOYER-EMPLOYEE
RELATIONSHIP IN A LAND-BASED ACTIVITY, APPLICATION OF THE STATUTES TO
FISHERMEN MIGHT BE SERIOUSLY LIMITED. 

/17/  SEE, E.G., CAPE SHORE FISH CO. V. UNITED STATES, 165 CT.CL.
630, 637-641, 330 F.2D 961, 965-968 (1964); G. GILMORE & C. BLACK, THE
LAW OF ADMIRALTY SEC. 4-21 (1957). 

/18/  SEE, E.G., RADIO CITY MUSIC HALL CORP. V. UNITED STATES, 135
F.2D 715, 717-718 (C.A. 2D CIR. 1943). 

/19/  SEE H. R. REP. NO. 2168, SUPRA, N. 13, AT 9-10: "AMPLE
FLEXIBILITY IS POSSIBLE UNDER (THE COMMON-LAW) RULE TO ACCOMMODATE
PECULIAR OR UNUSUAL EMPLOYMENT RELATIONSHIPS SO FREQUENTLY FOUND IN OUR
COMPLEX ECONOMIC SYSTEM. 

        .        .          .          . 

"THE COMMON-LAW CONCEPT OF MASTER AND SERVANT, OF COURSE, IS NO MORE
FIXED AND IMMUTABLE THAN THE COMMON LAW ITSELF.  HENCE IT WILL PRODUCE
IN PRACTICE VARYING RESULTS UNDER VARYING CIRCUMSTANCES AND IN
DIFFERENT JURISDICTIONS.  BUT SUCH VARIATIONS WILL NOT OFFEND THE
COMMON-LAW RULE ITSELF.  . . . 

". . .THERE IS NOTHING TO FEAR FROM DIFFERENCES IN THE APPLICATION
OF THE COMMON-LAW TESTS, BUT THERE IS MUCH TO FEAR FROM THE ABANDONMENT
OF RECOGNIZED COMMON-LAW PRINCIPLES IN RESOLVING SUCH QUESTIONS OF
FACT.  SUCH ABANDONMENT WOULD SIMPLY AMOUNT TO RELIANCE UPON NO
RECOGNIZED BODY OF LEGAL PRINCIPLES." 

/20/  OTHER FACTORS THAT MAY HAVE SIGNIFICANCE ARE DISCUSSED IN
UNITED STATES V. SILK, 331 U.S. 704 (1947); ENOCHS V. WILLIAMS PACKING
CO., 370 U.S. 1 (1962); KIRKCONNELL V. UNITED STATES, 171 CT.CL. 43,
347 F.2D 260 (1965); ILLINOIS TRI-SEAL PRODUCTS, INC. V. UNITED STATES,
173 CT.CL. 499, 353 F.2D 216 (1965). 

/21/  WE FIND NO SUPPORT FOR A CONTRARY CONCLUSION IN THE FACT THAT,
SHORTLY AFTER THE DISTRICT COURT'S DECISION IN THIS CASE, THE TREASURY
DEPARTMENT UNSUCCESSFULLY SOUGHT AN AMENDMENT TO SEC. 3121(D)(3)
DEFINING "EMPLOYEE" TO INCLUDE THE CAPTAINS AND CREWS OF COMMERCIAL
FISHING VESSELS WITHOUT REGARD TO THEIR STATUS UNDER THE GENERAL
DEFINITION IN SEC. 3121(D)(2), SEE N. 5, SUPRA.  SEE THE BILL THAT
BECAME THE SOCIAL SECURITY AMENDMENTS OF 1967, H. R. 12080, SECS.
504(B)(1), (2) (AS AMENDED BY THE SENATE); S. REP. NO. 744, 90TH CONG.,
1ST SESS., 203-205, 320-324 (1967); H. R. REP. NO. 1030, 90TH CONG.,
1ST SESS., 74 (1967) (CONFERENCE REPORT DELETING THE AMENDMENT).  THAT
THE TREASURY ALSO CHOSE TO PROCEED ON THE LEGISLATIVE FRONT DOES NOT
IMPAIR THE ARGUMENT PUT FORTH BY THE UNITED STATES HERE, AND CONGRESS'
FAILURE TO ADOPT THE AMENDMENT IS A DUBIOUS INDICATION OF THE POSITION
OF CONGRESS IN 1967 ON THE QUESTION BEFORE US, LET ALONE THE POSITION
OF A DIFFERENT CONGRESS IN 1948.  CF. UNITED STATES V. PRICE, 361 U.S.
304, 310-312 (1960); UNITED STATES V. WISE, 370 U.S. 405, 411 (1962). 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEFS WERE ASSISTANT ATTORNEY GENERAL WALTERS, HARRIS
WEINSTEIN, MATTHEW J. ZINN, LOUIS M. KAUDER, AND ROBERT I. WAXMAN. 

JOSEPH J. LYMAN ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

..END :




















PORTER CO. V. NLRB, 397 U.S. 99 


       H. K. PORTER CO., INC., DISSTON DIVISION-DANVILLE WORKS V.

           NATIONAL LABOR RELATIONS BOARD ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT

NO. 230.  ARGUED JANUARY 15, 1970-- DECIDED MARCH 2, 1970 


FOLLOWING PROTRACTED COLLECTIVE-BARGAINING NEGOTIATIONS BETWEEN
RESPONDENT UNION AND THE PETITIONER REVOLVING MAINLY AROUND THE UNION'S
DESIRE TO HAVE THE COMPANY "CHECK OFF" THE DUES OWED TO THE UNION BY
ITS MEMBERS, THE NATIONAL LABOR THAT THE COMPANY'S REFUSAL TO BARGAIN
ABOUT THE CHECKOFF WAS NOT MADE IN GOOD FAITH BUT SOLELY TO FRUSTRATE
THE MAKING OF A COLLECTIVE-BARGAINING AGREEMENT.  THEREAFTER THE NLRB
ORDERED THE PETITIONER TO GRANT THE UNION A CONTRACT CHECKOFF CLASE. 
THE COURT OF APPEALS AFFIRMED THE ORDER, CONCLUDING THAT SEC. 8(D) OF
THE NATIONAL LABOR RELATIONS ACT DID NOT FORBID THE NLRB TO COMPEL
AGREEMENT.  HELD:  THROUGH THE NLRB HAS POWER UNDER THE ACT TO REQUIRE
EMPLOYERS AND EMPLOYEES TO NEGOTIATE, IT DOES NOT HAVE THE POWER TO
COMPEL EITHER TO AGREE TO ANY SUBSTANTIVE CONTRACTUAL PROVISION OF A
COLLECTIVE-BARGAINING AGREEMENT.  PP. 102-109. 

134 U.S.APP.D.C. 227, 414 F.2D 1123, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AFTER AN ELECTION RESPONDENT UNITED STEELWORKERS UNION WAS, ON
OCTOBER 5, 1961, CERTIFIED BY THE NATIONAL LABOR RELATIONS BOARD AS THE
BARGAINING AGENT FOR CERTAIN EMPLOYEES AT THE DANVILLE, VIRGINIA, PLANT
OF THE PETITIONER, H. K. PORTER CO. THEREAFTER NEGOTIATIONS COMMENCED
FOR A COLLECTIVE-BARGAINING AGREEMENT.  SINCE THAT TIME THE CONTROVERSY
HAS SEESAWED BETWEEN THE BOARD, THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT, AND THIS COURT.  THIS DELAY OF OVER EIGHT YEARS IS
NOT BECAUSE THE CASE IS EXCEEDINGLY COMPLEX, BUT APPEARS TO HAVE
OCCURRED CHIEFLY BECAUSE OF THE SKILL OF THE COMPANY'S NEGOTIATORS IN
TAKING ADVANTAGE OF EVERY OPPORTUNITY FOR DELAY IN AN ACT MORE
NOTICEABLE FOR ITS GENERALITY THAN FOR ITS PRECISE PRESCRIPTIONS.  THE
ENTIRE LENGTHY DISPUTE MAINLY REVOLVES AROUND THE UNION'S DESIRE TO
HAVE THE COMPANY AGREE TO "CHECK OFF" THE DUES OWED TO THE UNION BY ITS
MEMBERS, THAT IS, TO DEDUCT THOSE DUES PERIODICALLY FROM THE COMPANY'S
WAGE PAYMENTS TO THE EMPLOYEES.  THE RECORD SHOWS, AS THE BOARD FOUND,
THAT THE COMPANY'S OBJECTION TO A CHECKOFF WAS NOT DUE TO ANY GENERAL
PRINCIPLE OR POLICY AGAINST MAKING DEDUCTIONS FROM EMPLOYEES' WAGES. 
THE COMPANY DOES DEDUCT CHARGES FOR THINGS LIKE INSURANCE, TAXES, AND
CONTRIBUTIONS TO CHARITIES, AND AT SOME OTHER PLANTS IT HAS A CHECKOFF
ARRANGEMENT FOR UNION DUES.  THE EVIDENCE SHOWS, AND THE COURT BELOW
FOUND, THAT THE COMPANY'S OBJECTION WAS NOT BECAUSE OF INCONVENIENCE,
BUT SOLELY ON THE GROUND THAT THE COMPANY WAS "NOT GOING TO AID AND
COMFORT THE UNION."  EFFORTS BY THE UNION TO OBTAIN SOME KIND OF
COMPROMISE ON THE CHECKOFF REQUEST WERE ALL MET WITH THE SAME STACCATO
RESPONSE TO THE EFFECT THAT THE COLLECTION OF UNION DUES WAS THE
"UNION'S BUSINESS" AND THE COMPANY WAS NOT GOING TO PROVIDE ANY
ASSISTANCE.  BASED ON THIS AND OTHER EVIDENCE THE BOARD FOUND, AND THE
COURT OF APPEALS APPROVED THE FINDING, THAT THE REFUSAL OF THE COMPANY
TO BARGAIN ABOUT THE CHECKOFF WAS NOT MADE IN GOOD FAITH, BUT WAS DONE
SOLELY TO FRUSTRATE THE MAKING OF ANY COLLECTIVE-BARGAINING AGREEMENT. 
IN MAY 1966, THE COURT OF APPEALS UPHELD THE BOARD'S ORDER REQUIRING
THE COMPANY TO CEASE AND DESIST FROM REFUSING TO BARGAIN IN GOOD FAITH
AND DIRECTING IT TO ENGAGE IN FURTHER COLLECTIVE BARGAINING, IF
REQUESTED BY THE UNION TO DO SO, OVER THE CHECKOFF.  UNITED
STEELWORKERS V. NLRB, 124 U.S.APP.D.C. 143, 363 F.2D 272, CERT. DENIED,
385 U.S. 851. 

IN THE COURSE OF THAT OPINION, THE COURT OF APPEALS INTIMATED THAT
THE BOARD CONCEIVABLY MIGHT HAVE REQUIRED PETITIONER TO AGREE TO A
CHECKOFF PROVISION AS A REMEDY FOR THE PRIOR BAD-FAITH BARGAINING,
ALTHOUGH THE ORDER ENFORCED AT THAT TIME DID NOT CONTAIN ANY SUCH
PROVISION.  124 U.S.APP.D.C., AT 146-147, AND N. 16, 363 F.2D, AT 275
276, AND N. 16.  IN THE ENSUING NEGOTIATIONS THE COMPANY OFFERED TO
DISCUSS ALTERNATIVE ARRANGEMENTS FOR COLLECTING THE UNION'S DUES, BUT
THE UNION INSISTED THAT THE COMPANY WAS REQUIRED TO AGREE TO THE
CHECKOFF PROPOSAL WITHOUT MODIFICATION.  BECAUSE OF THIS DISAGREEMENT
OVER THE PROPER INTERPRETATION OF THE COURT'S OPINION, THE UNION, IN
FEBRUARY 1967, FILED A MOTION FOR CLARIFICATION OF THE 1966 OPINION. 
THE MOTION WAS DENIED BY THE COURT ON MARCH 22, 1967, IN AN ORDER
SUGGESTING THAT CONTEMPT PROCEEDINGS BY THE BOARD WOULD BE THE PROPER
AVENUE FOR TESTING THE EMPLOYER'S COMPLIANCE WITH THE ORIGINAL ORDER. 
A REQUEST FOR THE INSTITUTION OF SUCH PROCEEDINGS WAS MADE BY THE
UNION, AND, IN JUNE 1967, THE REGIONAL DIRECTOR OF THE BOARD DECLINED
TO PROSECUTE A CONTEMPT CHARGE, FINDING THAT THE EMPLOYER HAD
"SATISFACTORILY COMPLIED WITH THE AFFIRMATIVE REQUIREMENTS OF THE
ORDER."  APP. 111.  THE UNION THEN FILED IN THE COURT OF APPEALS A
MOTION FOR RECONSIDERATION OF THE EARLIER MOTION TO CLARIFY THE 1966
OPINION.  THE COURT GRANTED THAT MOTION AND ISSUED A NEW OPINION IN
WHICH IT HELD THAT IN CERTAIN CIRCUMSTANCES A "CHECKOFF MAY BE IMPOSED
AS A REMEDY FOR BAD FAITH BARGAINING."  UNITED STEELWORKERS V. NLRB,
128 U.S.APP.D.C. 344, 347 389 F.2D 295, 298 (1967).  THE CASE WAS THEN
REMANDED TO THE 'BOARD AND ON JULY 3, 1968, THE BOARD ISSUED A
SUPPLEMENTAL ORDER REQUIRING THE PETITIONER TO "(GRANT TO THE UNION A
CONTRACT CLAUSE PROVIDING FOR THE CHECKOFF OF UNION DUES."  172
N.L.R.B. NO. 72, 68 L.R.R.M. 1337.  THE COURT OF APPEALS AFFIRMED THIS
ORDER, H. K. PORTER CO. V. NLRB, 134 U.S.APP.D.C. 227, 414 F.2D 1123
(1969).  WE GRANTED CERTIORARI TO CONSIDER WHETHER THE BOARD IN THESE
CIRCUMSTANCES HAS THE POWER TO REMEDY THE UNFAIR LABOR PRACTICE BY
REQUIRING THE COMPANY TO AGREE TO CHECK OFF THE DUES OF THE WORKERS. 
396 U.S. 817.  FOR REASONS TO BE STATED WE HOLD THAT WHILE THE BOARD
DOES HAVE POWER UNDER THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 136,
AS AMENDED, TO REQUIRE EMPLOYERS AND EMPLOYEES TO NEGOTIATE, IT IS
WITHOUT POWER TO COMPEL A COMPANY OR A UNION TO AGREE TO ANY
SUBSTANTIVE CONTRACTUAL PROVISION OF A COLLECTIVE-BARGAINING
AGREEMENT. 

SINCE 1935 THE STORY OF LABOR RELATIONS IN THIS COUNTRY HAS LARGELY
BEEN A HISTORY OF GOVERNMENTAL REGULATION OF THE PROCESS OF COLLECTIVE
BARGAINING.  IN THAT YEAR CONGRESS DECIDED THAT DISTURBANCES IN THE
AREA OF LABOR RELATIONS LED TO UNDESIRABLE BURDENS ON AND OBSTRUCTIONS
OF INTERSTATE COMMERCE, AND PASSED THE NATIONAL LABOR RELATIONS ACT, 49
STAT. 449.  THAT ACT, BUILDING ON THE NATIONAL INDUSTRIAL RECOVERY ACT,
48 STAT. 195 (1933), PROVIDED THAT EMPLOYEES HAD A FEDERALLY PROTECTED
RIGHT TO JOIN LABOR ORGANIZATIONS AND BARGAIN COLLECTIVELY THROUGH
THEIR CHOSEN REPRESENTATIVES ON ISSUES AFFECTING THEIR EMPLOYMENT. 
CONGRESS ALSO CREATED THE NATIONAL LABOR RELATIONS BOARD TO SUPERVISE
THE COLLECTIVE-BARGAINING PROCESS.  THE BOARD WAS EMPOWERED TO
INVESTIGAGE DISPUTES AS TO WHICH UNION, IF ANY, REPRESENTED THE
EMPLOYEES, AND TO CERTIFY THE APPROPRIATE REPRESENTATIVE AS THE
DESIGNATED COLLECTIVE-BARGAINING AGENT.  THE EMPLOYER WAS THEN REQUIRED
TO BARGAIN TOGETHER WITH THIS REPRESENTATIVE AND THE BOARD WAS
AUTHORIZED TO MAKE SURE THAT SUCH BARGAINING DID IN FACT OCCUR. 
WITHOUT SPELLING OUT THE DETAILS, THE ACT PROVIDED THAT IT WAS AN
UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO REFUSE TO BARGAIN.  THUS A
GENERAL PROCESS WAS ESTABLISHED THAT WOULD ENSURE THAT EMPLOYEES AS A
GROUP COULD EXPRESS THEIR OPINIONS AND EXERT THEIR COMBINED INFLUENCE
OVER THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT.  THE BOARD WOULD ACT
TO SEE THAT THE PROCESS WORKED. 

THE OBJECT OF THIS ACT WAS NOT TO ALLOW GOVERNMENTAL REGULATIONS OF
THE TERMS AND CONDITIONS OF EMPLOYEMENT, BUT RATHER TO ENSURE THAT
EMPLOYERS AND THEIR EMPLOYEES COULD WORK TOGETHER TO ESTABLISH MUTUALLY
SATISFACTORY CONDITIONS.  THE BASIC THEME OF THE ACT WAS THAT THROUGH
COLLECTIVE BARGAINING THE PASSIONS, ARGUMENTS, AND STRUGGLES OF PRIOR
YEARS WOULD BE CHANNELED INTO CONSTRUCTIVE, OPEN DISCUSSIONS LEADING,
IT WAS HOPED, TO MUTUAL AGREEMENT.  BUT IT WAS RECOGNIZED FROM THE
BEGINNING THAT AGREEMENT MIGHT IN SOME CASES BY IMPOSSIBLE, AND IT WAS
NEVER INTENDED THAT THE GOVERNMENT WOULD IN SUCH CASES STEP IN, BECOME
A PARTY TO THE NEGOTIATIONS AND IMPOSE ITS OWN VIEWS OF A DESIRABLE
SETTLEMENT.  THIS FUNDAMENTAL LIMITATION WAS MADE ABUNDANTLY CLEAR IN
THE LEGISLATIVE REPORTS ACCOMPANYING THE 1935 ACT.  THE SENATE
COMMITTEE ON EDUCATION AND LABOR STATED: 

"THE COMMITTEE WISHES TO DISPEL ANY POSSIBLE FALSE IMPRESSION

  THAT THIS BILL IS DESIGNED TO COMPEL THE MAKING OF AGREEMENTS OR

  TO PERMIT GOVERNMENTAL SUPERVISION OF THEIR TERMS.  IT MUST BE

  STRESSED THAT THE DUTY TO BARGAIN COLLECTIVELY DOES NOT CARRY

  WITH IT THE DUTY TO REACH AN AGREEMENT, BECAUSE THE ESSENCE OF

  COLLECTIVE BARGAINING IS THAT EITHER PARTY SHALL BE FREE TO

  DECIDE WHETHER PROPOSALS MADE TO IT ARE SATISFACTORY."  /1/

THE DISCUSSIONS ON THE FLOOR OF CONGRESS CONSISTENTLY REFLECTED THIS
SAME UNDERSTANDING.  /2/ 

THE ACT WAS PASSED AT A TIME IN OUR NATION'S HISTORY WHEN THERE WAS
CONSIDERABLE LEGAL DEBATE OVER THE CONSTITUTIONALITY OF ANY LAW THAT
REQUIRED EMPLOYERS TO CONFORM THEIR BUSINESS BEHAVIOR TO ANY
GOVERNMENTALLY IMPOSED STANDARDS.  IT WAS SERIOUSLY CONTENDED THAT
CONGRESS COULD NOT CONSTITUTIONALLY COMPEL AN EMPLOYER TO RECOGNIZE A
UNION AND ALLOW HIS EMPLOYEES TO PARTICIPATE IN SETTING THE TERMS AND
CONDITIONS OF EMPLOYMENT.  IN NLRB V. JONES & LAUGHLIN STEEL CORP., 301
U.S. 1 (1937), THIS COURT, IN A 5-TO-4 DECISION, HELD THAT CONGRESS WAS
WITHIN THE LIMITS OF ITS CONSTITUTIONAL POWERS IN PASSING THE ACT.  IN
THE COURSE OF THAT DECISION THE COURT SAID: 

     "THE ACT DOES NOT COMPEL AGREEMENTS BETWEEN EMPLOYERS AND

  EMPLOYEES.  IT DOES NOT COMPEL ANY AGREEMENT WHATEVER . . . . THE

 THEORY OF THE ACT IS THAT FREE OPPORTUNITY FOR NEGOTIATION WITH

  ACCREDITED REPRESENTATIVES OF EMPLOYEES IS LIKELY TO PROMOTE

  INDUSTRIAL PEACE AND MAY BRING ABOUT THE ADJUSTMENTS AND

  AGREEMENTS WHICH THE ACT IN ITSELF DOES NOT ATTEMPT TO COMPEL." 

  ID., AT 45. 

IN 1947 CONGRESS REVIEWED THE EXPERIENCE UNDER THE ACT AND CONCLUDED
THAT CERTAIN AMENDMENTS WERE IN ORDER.  IN THE HOUSE COMMITTEE REPORT
ACCOMPANYING WHAT EVENTUALLY BECAME THE LABOR MANAGEMENT RELATIONS ACT,
1947, THE COMMITTEE REFERRED TO THE ABOVE-QUOTED LANGUAGE IN JONES &
LAUGHLIN AND SAID: 

     "NOTWITHSTANDING THIS LANGUAGE OF THE COURT, THE PRESENT BOARD

  HAS GONE VERY FAR, IN THE GUISE OF DETERMINING WHETHER OR NOT

  EMPLOYERS HAD BARGAINED IN GOOD FAITH, IN SETTING ITSELF UP AS

  THE JUDGE OF WHAT CONCESSIONS AN EMPLOYER MUST MAKE AND OF THE

PROPOSALS AND COUNTERPROPOSALS THAT HE MAY OR MAY NOT MAKE.  . . .

        .          .          .          . 

"(UNLESS CONGRESS WRITES INTO THE LAW GUIDES FOR THE BOARD TO

  FOLLOW, THE BOARD MAY ATTEMPT TO CARRY THIS PROCESS STILL FURTHER

  AND SEEK TO CONTROL MORE AND MORE THE TERMS OF

  COLLECTIVE-BARGAINING AGREEMENTS."  /3/

ACCORDINGLY CONGRESS AMENDED THE PROVISIONS DEFINING UNFAIR LABOR
PRACTICES AND SAID IN SEC. 8(D) THAT: 

     "FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS

  THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE

  REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND

CONFER IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER

  TERMS AND CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN

  AGREEMENT, OR ANY QUESTION ARISING THEREUNDER, AND THE EXECUTION

  OF A WRITTEN CONTRACT INCORPORATION ANY AGREEMENT REACHED IF

  REQUESTED BY EITHER PARTY, BUT SUCH OBLIGATION DOES NOT COMPEL

  EITHER PARTY TO AGREE TO A PROPOSAL OR REQUIRE THE MAKING OF A

  CONCESSION."  /4/ 

IN DISCUSSING THE EFFECT OF THAT AMENDMENT, THIS COURT SAID IT IS
"CLEAR THAT THE BOARD MAY NOT, EITHER DIRECTLY OR INDIRECTLY, COMPEL
CONCESSIONS OR OTHERWISE SIT IN JUDGMENT UPON THE SUBSTANTIVE TERMS OF
COLLECTIVE BARGAINING AGREEMENTS."  NLRB V. AMERICAN INS. CO., 343 U.S.
395, 404 (1952).  LATER THIS COURT AFFIRMED THAT VIEW STATING THAT "IT
REMAINS CLEAR THAT SEC. 8(D) WAS AN ATTEMPT BY CONGRESS TO PREVENT THE
BOARD FROM CONTROLLING THE SETTLING OF THE TERMS OF COLLECTIVE
BARGAINING AGREEMENTS."  NLRB V. INSURANCE AGENTS, 361 U.S. 477, 487
(1960).  THE PARTIES TO THE INSTANT CASE ARE AGREED THAT THIS IS THE
FIRST TIME IN THE 35-YEAR HISTORY OF THE ACT THAT THE BOARD HAS ORDERED
EITHER AN EMPLOYER OR A UNION TO AGREE TO A SUBSTANTIVE TERM OF A
COLLECTIVE-BARGAINING AGREEMENT. 

RECOGNIZING THE FUNDAMENTAL PRINCIPLE "THAT THE NATIONAL LABOR
RELATIONS ACT IS GROUNDED ON THE PREMISE OF FREEDOM OF CONTRACT," 128
U.S.APP.D.C., AT 349 F.2D, AT 300, THE COURT OF APPEALS IN THIS CASE
CONCLUDED THAT NEVERTHELESS IN THE CIRCUMSTANCES PRESENTED HERE THE
BOARD COULD PROPERLY COMPEL THE EMPLOYER TO AGREE TO A PROPOSED
CHECKOFF CLAUSE.  THE BOARD HAD FOUND THAT THE REFUSAL WAS BASED ON A
DESIRE TO FRUSTRATE AGREEMENT AND NOT ON ANY LEGITIMATE BUSINESS
REASON.  ON THE BASIS OF THAT FINDING THE COURT OF APPEALS APPROVED THE
FURTHER FINDING THAT THE EMPLOYER HAD NOT BARGAINED IN GOOD FAITH, AND
THE VALIDITY OF THAT FINDING IS NOT NOW BEFORE US.  WHERE THE RECORD
THUS REVEALED REPEATED REFUSALS BY THE EMPLOYER TO BARGAIN IN GOOD
FAITH ON THIS ISSUE, THE COURT OF APPEALS CONCLUDED THAT ORDERING
AGREEMENT TO THE CHECKOFF CLAUSE "MAY BE THE ONLY MEANS OF ASSURING THE
BOARD, AND THE COURT, THAT (THE EMPLOYER) NO LONGER HARBORS AN ILLEGAL
INTENT."  128 U.S.APP.D.C.,AT 348, 389 F.2D.AT 299. 

IN REACHING THIS CONCLUSION THE COURT OF APPEALS HELD THAT SEC. 8(D)
DID NOT FORBID THE BOARD FROM COMPELLING AGREEMENT.  THAT COURT FELT
THAT "(SECTION 8(D) DEFINES COLLECTIVE BARGAINING AND RELATES TO A
DETERMINATION OF WHETHER A . . . VIOLGATION HAS OCCURRED AND NOT TO THE
SCOPE OF THE REMEDY WHICH MAY BE NECESSARY TO CURE VIOLATIONS WHICH
HAVE ALREADY OCCURRED."  128 U.S.APP.D.C.,AT 348, 389 F.1D,AT 299.  WE
MAY AGREE WITH THE COURT OF APPEALS THAT AS A MATTER OF STRICT LITERAL
INTERPRETATION THAT SECTION REFERS ONLY TO DECIDING WHEN A VIOLATION
HAS OCCURRED, BUT WE DO NOT AGREE THAT THAT OBSERVATION JUSTIFIES THE
CONCLUSION THAT THE REMEDIAL POWERS OF THE BOARD ARE NOT ALSO LIMITED
BY THE SAME CONSIDERATIONS THAT LED CONGRESS TO ENACT SEC. 8(D).  IT IS
IMPLICIT IN THE ENTIRE STRUCTURE OF THE ACT THAT THE BOARD ACTS TO
OVERSEE AND REFEREE THE PROCESS OF COLLECTIVE BARGAINING, LEAVING THE
RESULTS OF THE CONTEST TO THE BARGAINING STRENGTHS OF THE PARTIES.  IT
WOULD BE ANOMALOUS INDEED TO HOLD THAT WHILE SEC. 8(D) PROHIBITS THE
BOARD FROM RELYING ON A REFUSAL TO AGREE AS THE SOLE EVIDENCE OF BAD
FAITH BARGAINING, THE ACT PERMITS THE BOARD TO COMPELL AGREEMENT IN
THAT SAME DISPUTE.  THE BOARD'S RMEDIAL POWERS UNDER SEC. 10 OF THE ACT
ARE BROAD, BUT THEY ARE LIMITED TO CARRYING OUT THE POLICIES OF THE ACT
ITSELF.  /5/  ONE OF THESE FUNDAMENTAL POLICIES IS FREEDOM OF
CONTRACT.  WHILE THE PARTIES' FREEDOM OF CONTRACT IS NOT ABSOLUTE UNDER
THE ACT, /6/  ALLOWING THE BOARD TO COMPEL AGREEMENT WHEN THE PARTIES
THEMSELVES ARE UNABLE TO AGREE WOULD VIOLATE THE FUNDAMENTAL PREMISE ON
WHICH THE ACT IS BASED-- PRIVATE BARGAINING UNDER GOVERNMENTAL
SUPERVISION OF THE PROCEDURE ALONE, WITHOUT ANY OFFICIAL COMPULSION
OVER THE ACTUAL TERMS OF THE CONTRACT. 

IN REACHING ITS DECISION THE COURT OF APPEALS RELIED EXTENSIVELY ON
THE EQUALLY IMPORTANT POLICY OF THE ACT THAT WORKERS' RIGHTS TO
COLLECTIVE BARGAINING ARE TO BE SECURED.  IN THIS CASE THE COURT
APPARENTLY FELT THAT THE EMPLOYER WAS TRYING EFFECTIVELY TO DESTROY THE
UNION BY REFUSING TO AGREE TO WHAT THE UNION MAY HAVE CONSIDERED ITS
MOST IMPORTANT DEMAND.  PERHAPS THE COURT, FEARING THAT THE PARTIES
MIGHT RESORT TO ECONOMIC COMBAT, WAS ALSO TRYING TO MAINTAIN THE
INDUSTRIAL PEACE THAT THE ACT IS DESIGNED TO FURTHER.  BUT THE ACT AS
PRESENTLY DRAWN DOES NOT CONTEMPLATE THAT UNIONS WILL ALWAYS BE SECURE
AND ABLE TO ACHIEVE AGREEMENT EVEN WHEN THEIR ECONOMIC POSITION IS
WEAK, OR THAT STRIKES AND LOCKOUTS WILL NEVER RESULT FROM A BARGAINING
IMPASSE.  IT CANNOT BE SAID THAT THE ACT FORBIDS AN EMPLOYER OR A UNION
TO RELY ULTIMATELY ON ITS ECONOMIC STRENGTH TO TRY TO SECURE WHAT IT
CANNOT OBTAIN THROUGH BARGAINING.  IT MAY WELL BE TRUE, AS THE COURT OF
APPEALS FELT, THAT THE PRESENT REMEDIAL POWERS OF THE BOARD ARE
INSUFFICIENTLY BROAD TO COPE WITH IMPORTANT LABOR PROBLEMS.  BUT IT IS
THE JOB OF CONGRESS, NOT THE BOARD OR THE COURTS, TO DECIDE WHEN AND IF
IT IS NECESSARY TO ALLOW GOVERNMENTAL REVIEW OF PROPOSALS FOR
COLLECTIVE-BARGAINING AGREEMENTS AND COMPULSORY SUBMISSION TO ONE
SIDE'S DEMANDS.  THE PRESENT ACT DOES NOT ENVISION SUCH A PROCESS. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE COURT OF
APPEALS FOR FURTHER ACTION CONSISTENT WITH THIS OPINION. 

     REVERSED AND REMANDED. 

/1/  S. REP. NO. 573, 74TH CONG., 1ST SESS., 12 (1935). 

/2/  "LET ME SAY THAT THE BILL REQUIRES NO EMPLOYER TO SIGN ANY
CONTRACT, TO MAKE ANY AGREEMENT, TO REACH ANY UNDERSTANDING WITH ANY
EMPLOYEE OR GROUP OF EMPLOYEES.  . . .

        .          .          . . 

"NOTHING IN THIS BILL ALLOWS THE FEDERAL GOVERNMENT OR ANY AGENCY TO
FIX WAGES, TO REGULATE RATES OF PAY, TO LIMIT HOURS OF WORK, OR TO
EFFECT OR GOVERN ANY WORKING CONDITION IN ANY ESTABLISHMENT OR PLACE OF
EMPLOYMENT. 

        . .          .          . 

"A CRUDE ILLUSTRATION IS THIS:  THE BILL INDICATES THE METHOD AND
MANNER IN WHICH EMPLOYEES MAY ORGANIZE, THE METHOD AND MANNER OF
SELECTING THEIR REPRESENTATIVES OR SPOKESMEN, AND LEADS THEM TO THE
OFFICE DOOR OF THEIR EMPLOYER WITH THE LEGAL AUTHORITY TO NEGOTIATE FOR
THEIR FELLOW EMPLOYEES.  THE BILL DOES NOT GO BEYOND THE OFFICE DOOR. 
IT LEAVES THE DISCUSSION BETWEEN THE EMPLOYER AND THE EMPLOYEE, AND THE
AGREEMENTS WHICH THEY MAY OR MAY NOT MAKE, VOLUNTARY AND WITH THAT
SACREDNESS AND SOLEMNITY TO A VOLUNTARY AGREEMENT WITH WHICH BOTH
PARTIES TO AN AGREEMENT SHOULD BE ENSHROUDED."  REMARKS OF SENATOR
WALSH, 79 CONG.REC.  7659; SEE ALSO 79 CONG.REC.  9682, 9711. 

/3/  H. R. REP. NO. 245, 80TH CONG., 1ST SESS., 19-20 (1947). 

/4/  29 U.S.C. 158(D) (EMPHASIS ADDED). 

/5/  "IF . . . THE BOARD SHALL BE OF THE OPINION THAT ANY PERSON . .
. HAS ENGAGED IN OR IS ENGAGING IN ANY . . . UNFAIR LABOR PRACTICE,
THEN THE BOARD SHALL STATE ITS FINDINGS OF FACT AND SHALL ISSUE AND
CAUSE TO BE SERVED ON SUCH PERSON AN ORDER REQUIRING SUCH PERSON TO
CEASE AND DESIST FROM SUCH UNFAIR LABOR PRACTICE, AND TO TAKE SUCH
AFFIRMATIVE ACTION . . . AS WILL EFFECTUATE THE POLICIES OF (THE
ACT)."  29 U.S.C. 160(C). 

/6/  FOR EXAMPLE, THE EMPLOYER IS NOT FREE TO CHOOSE ANY EMPLOYEE
REPRESENTATIVE HE WANTS, AND THE REPRESENTATIVE DESIGNATED BY THE
MAJORITY OF THE EMPLOYEES REPRESENTS THE MINORITY AS WELL.  THE ACT
ITSELF PROHIBITS CERTAIN CONTRACTUAL TERMS RELATING TO REFUSALS TO DEAL
IN THE GOODS OF OTHERS, 29 U.S.C. 158(E).  VARIOUS PRACTICES IN
ENFORCING THE ACT MAY TO SOME EXTENT LIMIT FREEDOM TO CONTRACT AS THE
PARTIES DESIRE.  SEE GENERALLY WELLINGTON, FREEDOM OF CONTRACT AND THE
COLLECTIVE BARGAINING AGREEMENT, 112 U. PA. L.REV.  467 (1964). 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN IN THE COURT'S OPINION ON THE UNDERSTANDING THAT NOTHING SAID
THEREIN IS MEANT TO DISTURB OR QUESTION THE PRIMARY DETERMINATION MADE
BY THE BOARD AND SUSTAINED BY THE COURT OF APPEALS, THAT PETITIONER DID
NOT BARGAIN IN "GOOD FAITH," AND THUS MAY BE SUBJECTED TO A BARGAINING
ORDER ENFORCEABLE BY A CITATION FOR CONTEMPT IF THE BOARD DEEMS SUCH A
PROCEEDING APPROPRIATE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTRICT STEWARD CONCURS,
DISSENTING. 

THE COURT CORRECTLY DESCRIBES THE GENERAL DESIGN AND MAIN TRUST OF
THE ACT.  IT DOES NOT ENCOMPASS COMPULSORY ARBITRATION; THE BOARD DOES
NOT SIT TO IMPOSE WHAT IT DEEMS TO BE THE BEST CONDITIONS FOR THE
COLLECTIVE-BARGAINING AGREEMENT; THE OBLIGATION TO BARGAIN COLLECTIVELY
"DOES NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR REQUIRE THE
MAKING OF A CONCESSION."  SEC. 8(D) OF THE ACT. 

YET THE BOARD HAS THE POWER, WHERE ONE PARTY DOES NOT BARGAIN IN
GOOD FAITH, "TO TAKE SUCH AFFIRMATIVE ACTION . . . AS WILL EFFECTUATE
THE POLICIES" OF THE ACT.  SEC. 10(C) OF THE ACT. 

HERE THE EMPLOYER DID NOT REFUSE THE CHECKOFF FOR ANY BUSINESS
REASON, WHETHER COST, INCONVENIENCE, OR WHAT NOT.  NOR DID THE EMPLOYER
REFUSE THE CHECKOFF AS A FACTOR IN ITS BARGAINING STRATEGY, HOPING THAT
DELAY AND DENIAL MIGHT BRING IT IN EXCHANGE FAVORABLE TERMS AND
CONDITIONS.  ITS REASON WAS A RESOLVE TO AVOID REACHING ANY AGREEMENT
WITH THE UNION. 

IN THOSE NARROW AND SPECIALIZED CIRCUMSTANCES, I SEE NO ANSWER TO THE
POWER OF THE BOARD IN ITS DISCRETION TO IMPOSE THE CHECKOFF AS
"AFFIRMATIVE ACTION" NECESSARY TO REMEDY THE FLAGRANT REFUSAL OF THE
EMPLOYER TO BARGAIN IN GOOD FAITH. 

THE CASE IS RARE, IF NOT UNIQUE, AND WILL SELDOM ARISE.  I REALIZE
THAT ANY PRINCIPLE ONCE ANNOUNCED MAY IN TIME GAIN A MOMENTUM NOT
WARRANTED BY THE EXIGENCIES OF ITS CREATION.  BUT ONCE THERE IS ANY
BUSINESS CONSIDERATION THAT LEADS TO A DENIAL OF A DEMAND OR ANY
CONSIDERATION OF BARGAINING STRATEGY THAT EXPLAINS THE REFUSAL, THE
BOARD HAS NO POWER TO ACT.  ITS POWER IS NARROWLY RESTRICTED TO THE
CLEAR CASE WHERE THE REFUSAL IS AIMED SOLELY AT AVOIDANCE OF ANY
AGREEMENT.  SUCH IS THE PRESENT CASE.  HENCE, WITH ALL RESPECT FOR THE
STRENGTH OF THE OPPOSED VIEW, I DISSENT. 

DONALD C. WINSON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE PAUL R. OBERT, THOMAS P. LUSCHER, AND WILLIAM ALVAH
STEWART. 

NORTON J. COME ARGUED THE CAUSE FOR RESPONDENT NATIONAL LABOR
RELATIONS BOARD.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, JOSEPH J. CONNOLLY, ARNOLD ORDMAN, AND DOMINICK L. MANOLI. 
GEORGE H. COHEN ARGUED THE CAUSE FOR RESPONDENT UNITED STEELWORKERS OF
AMERICA, AFL-CIO.  WITH HIM ON THE BRIEF WERE ELLIOT BREDHOFF, MICHAEL
H. OTTESMAN, AND BERNARD KLEIMAN. 

LAWRENCE M. COHEN ARGUED THE CAUSE FOR THE CHAMBER OF COMMERCE OF
THE UNITED STATES AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE
BRIEFS WAS MILTON A. SMITH. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :















TOUSSIE V. UNITED STATES, 397 U.S. 112 


       TOUSSIE V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 441.  ARGUED JANUARY 14, 1970-- DECIDED MARCH 2, 1970 


PETITIONER, WHO WAS REQUIRED TO REGISTER FOR THE DRAFT BETWEEN JUNE
23 (HIS 18TH BIRTHDAY) AND JUNE 28, 1959, IN ACCORDANCE WITH A
PRESIDENTIAL PROCLAMATION ISSUED PURSUANT TO SEC. 3 OF THE UNIVERSAL
MILITARY TRAINING AND SERVICE ACT, DID NOT REGISTER AT ANY TIME. 
DAY OR DAYS FIXED FOR THE FIRST OR ANY SUBSEQUENT REGISTRATION, IS
BETWEEN THE AGES OF EIGHTEEN AND TWENTY-SIX, TO PRESENT HIMSELF FOR AND
SUBMIT TO REGISTRATION" AT THE TIME AND PLACE AND IN SUCH MANNER, "AS
SHALL BE DETERMINED BY PROCLAMATION OF THE PRESIDENT AND BY RULES AND
REGULATIONS PRESCRIBED THEREUNDER."  PETITIONER WAS INDICTED IN MAY
1967 FOR FAILING TO REGISTER AND WAS CONVICTED.  THE DISTRICT COURT
HELD THAT THE ACT IMPOSES A CONTINUING DUTY TO REGISTER WHICH LASTS
UNTIL AGE 26 AND THUS THE PROSECUTION WAS NOT BARRED BY THE FIVE-YEAR
STATUTE OF LIMITATIONS IN 18 U.S.C. 3282.  THE $ COURT OF APPEALS
AFFIRMED.  HELD:  THE OFFENSE IS NOT A CONTINUING ONE BUT WAS COMMITTED
BY PEITIONER'S FAILURE TO REGISTER IN 1959, WHEN THE STATUTE OF
LIMITATIONS BEGAN TO RUN.  PP. 114-124. 

410 F.2D 1156, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER ROBERT TOUSSIE WAS CONVICTED, AFTER A JURY TRIAL, OF
FAILING TO REGISTER FOR THE DRAFT.  HIS CONVICTION WAS AFFIRMED BY THE
COURT OF APPEALS, 410 F.2D 1156 (C.A. 2D CIR.), AND WE GRANTED
CERTIORARI, 306 U.S. 875 (1969).  FOR THE REASONS HEREAFTER SET FORTH
WE CONCLUDE THAT THIS PROSECUTION WAS BARRED BY THE STATUTE OF
LIMITATIONS AND THEREFORE REVERSE THE CONVICTION. 

STAT. 76, PROVIDES THAT: 

     "EXCEPT AS OTHERWISE PROVIDED IN THIS TITLE, IT SHALL BE THE

  DUTY OF EVERY MALE CITIZEN . . . WHO, ON THE DAY OR DAYS FIXED

  FOR THE FIRST OR ANY SUBSEQUENT REGISTRATION, IS BETWEEN THE AGES

 OF EIGHTEEN AND TWENTY-SIX, TO PRESENT HIMSELF FOR AND SUBMIT TO

  REGISTRATION AT SUCH TIME OR TIMES AND PLACE OR PLACES, AND IN

  SUCH MANNER, AS SHALL BE DETERMINED BY PROCLAMATION OF THE

  PRESIDENT AND BY RULES AND REGULATIONS PRESCRIBED HEREUNDER." 

  /1/

THE APPLICABLE PRESIDENTIAL PROCLAMATION PROVIDES THAT "(PERSONS WHO
WERE BORN ON OR AFTER SEPTEMBER 19, 1930, SHALL BE REGISTERED ON THE
DAY THEY ATTAIN THE EIGHTEENTH ANNIVERSARY OF THE DAY OF THEIR BIRTH,
OR WITHIN FIVE DAYS THEREAFTER."  /2/  SINCE TOUSSIE, AN AMERICAN
CITIZEN, WAS BORN ON JUNE 23, 1941, HE WAS REQUIRED TO REGISTER
SOMETIME BETWEEN JUNE 23 AND JUNE 28, 1959.  HE DID NOT DO SO DURING
THAT PERIOD OR AT ANY TIME THEREAFTER.  ON MAY 3, 1967, HE WAS INDICTED
FOR FAILING TO REGISTER AND THAT INDICTMENT LED TO THE CONVICTION UNDER
REVIEW. 

BEFORE TRIAL TOUSSIE MOVED TO DISMISS THE INDICTMENT, ARGUING THAT
PROSECUTION WAS BARRED BY THE STATUTE OF LIMITATIONS WHICH PROVIDES
THAT "(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 . . . WITHIN FIVE YEARS NEXT AFTER SUCH
OFFSENSE SHALL HAVE BEEN COMMITTED."  18 U.S.C. 3282.  SINCE THERE IS
NO EXPRESS PROVISION TO THE CONTRARY IN THE DRAFT ACT, TOUSSIE ARGUED
THAT HIS CRIME WAS COMPLETE IN 1959, AND IT COULD NOT BE THE SUBJECT OF
A PROSECUTION BASED ON AN INDICTMENT RETURNED IN 1967-- EIGHT YEARS
THEREAFTER.  THE GOVERNMENT AGREED THAT THE CRIME WAS COMPLETE IN 1959,
BUT ARGUED THAT IT CONTINUED TO BE COMMITTED EACH DAY THAT TOUSSIE DID
NOT REGISTER.  THE DISTRICT COURT HELD THAT THE ACT IMPOSES A
CONTINUING DUTY TO REGISTER WHICH LASTS UNTIL AGE 26 AND THAT
PROSECUTION FOR FAILING TO PERFORM THAT DUTY BEFORE THE MAN BECOMES 26
IS TIMELY IF THE INDICTMENT IS RETURNED BEFORE THE DEFENDANT BECOMES 31
YEARS OLD-- IN THIS CASE ANY TIME PRIOR TO JUNE 23, 1970.  280 F.SUPP. 
473, 474 (D.C.E.D.N.Y. 1967).  THE COURT OF APPEALS AGREED.  410 F.2D,
AT 1157-1158.  IF THE OFFENSE IS A CONTINUING ONE THE PROSECUTION WAS
TIMELY, BUT, IF NOT, THE DISTRICT COURT ERRED IN NOT DISMISSING THE
INDICTMENT. 

IN DECIDING WHEN THE STATUTE OF LIMITATIONS BEGINS TO RUN IN A GIVEN
CASE SEVERAL CONSIDERATIONS GUIDE OUR DECISION.  THE PURPOSE OF A
STATUTE OF LIMITATIONS IS TO LIMIT EXPOSURE TO CRIMINAL PROSECUTION TO
A CERTAIN FIXED PERIOD OF TIME FOLLOWING THE OCCURRENCE OF THOSE ACTS
THE LEGISLATURE HAS DECIDED TO PUNISH BY CRIMINAL SANCTIONS.  SUCH A
LIMITATION IS DESIGNED TO PROTECT INDIVIDUALS FROM HAVING TO DEFEND
THEMSELVES AGAINST CHARGES WHEN THE BASIC FACTS MAY HAVE BECOME
OBSCURED BY THE PASSAGE OF TIME AND TO MINIMIZE THE DANGER OF OFFICIAL
PUNISHMENT BECAUSE OF ACTS IN THE FAR-DISTANT PAST.  SUCH A TIME LIMIT
MAY ALSO HAVE THE SALUTARY EFFECT OF ENCOURAGING LAW ENFORCEMENT
OFFICIALS PROMPTLY TO INVESTIGATE SUSPECTED CRIMINAL ACITIVITY.  FOR
THESE REASONS AND OTHERS, WE HAVE STATED BEFORE "THE PRINCIPLE THAT
CRIMINAL LIMITATIONS STATUTES ARE 'TO BE LIBERALLY INTERPRETED IN FAVOR
OF REPOSE,' UNITED STATES V. SCHARTON, 285 U.S. 518, 522 (1932)." 
UNITED STATES V. HABIG, 390 U.S. 222, 227 (1968).  WE HAVE ALSO SAID
THAT "(STATUTES OF LIMITATIONS NORMALLY BEGIN TO RUN WHEN THE CRIME IS
COMPLETE."  PENDERGAST V. UNITED STATES, 317 U.S. 412, 418 (1943); SEE
UNITED STATES V. IRVINE, 98 U.S. 450, 452 (1879).  AND CONGRESS HAS
DECLARED A POLICY THAT THE STATUTE OF LIMITATIONS SHOULD NOT BE
EXTENDED "(EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY LAW."  18 U.S.C.
3282.  THESE PRINCIPLES INDICATE THAT THE DOCTRINE OF CONTINUING
OFFENSES SHOULD BE APPLIED IN ONLY LIMITED CIRCUMSTANCES SINCE, AS THE
COURT OF APPEALS CORRECTLY OBSERVE IN THIS CASE, "(THE TENSION BETWEEN
THE PURPOSE OF A STATUTE OF LIMITATIONS AND THE CONTINUING OFFENSE
DOCTRINE IS APPARENT; THE LATTER, FOR ALL PRACTICAL PURPOSES, EXTENDS
THE STATUTE BEYOND ITS STATED TERM."  410 F.2D, AT 1158.  THESE
CONSIDERATIONS DO NOT MEAN THAT A PARTICULAR OFFENSE SHOULD NEVER BE
CONSTRUED AS A CONTINUING ONE.  THEY DO, HOWEVER, REQUIRE THAT SUCH A
RESULT SHOULD NOT BE REACHED UNLESS THE EXPLICIT LANGUAGE OF THE
SUBSTANTIVE CRIMINAL STATUTE COMPELS SUCH A CONCLUSION, OR THE NATURE
OF THE CRIME INVOLVED IS SUCH THAT CONGRESS MUST ASSUREDLY HAVE
INTENDED THAT IT BE TREATED AS A CONTINUING ONE. 

THE STATUTE IN THIS CASE PROVIDES THAT ALL YOUNG MEN, WITH CERTAIN
EXCEPTIONS, BETWEEN THE AGES OF 18 AND 26 SHALL REGISTER "AT SUCH TIME
OR TIMES AND PLACE OR PLACES" AS THE PRESIDENT MAY PRESCRIBE.  THE
GOVERNMENT REFERS TO A REGULATION PROMULGATED UNDER THE ACT WHICH
PROVIDES THAT "(THE DUTY OF EVERY PERSON SUBJECT TO REGISTRATION . . .
SHALL CONTINUE AT ALL TIMES, AND IF FOR ANY REASON ANY SUCH PERSON IS
NOT REGISTERED ON THE DAY OR ONE OF THE DAYS FIXED FOR HIS
REGISTRATION, HE SHALL IMMEDIATELY PRESENT HIMSELF FOR AND SUBMIT TO
REGISTRATION . . . " 32 CFR 1611.7(C).  IT IS URGED THAT THIS
REGULATION ONLY MAKES EXPLICIT WHAT CONGRESS IMPLICITLY SAID IN THE ACT
ITSELF, THAT IS THAT REGISTRATION IS A DUTY THAT CONTINUES UNTIL AGE 26
AND FAILURE TO REGISTER BEFORE THEN IS A CRIMINAL OFFENSE THAT CAN BE
PUNISHED AS LATE AS FIVE YEARS AFTER THE 26TH BIRTHDAY. 

THE STATUTE ADMITTEDLY MIGHT BE CONSTRUED AS THE GOVERNMENT URGES,
BUT IN LIGHT OF THE HISTORY OF THE DRAFT LAWS AND THE PRINICIPLE THAT
CONTINUING OFFENSES ARE NOT TO BE TOO READILY FOUND, WE DO NOT FEEL
THIS PARTICULAR ACT INCORPORATES SUCH A DOCTRINE.  THE DRAFT LAW OF
1917 PROVIDED IN SEC. 5 THAT CERTAIN PERSONS WERE SUBJECT TO
REGISTRATION AND THAT "UPON PROCLAMATION BY THE PRESIDENT . . . STATING
THE TIME AND PLACE OF SUCH REIGSTRATION IT SHALL BE THE DUTY OF ALL
(SUCH) PERSONS . . . TO PRESENT THEMSELVES FOR AND SUBMIT TO
REGISTRATION."  40 STAT. 80.  PURSUANT TO THAT AUTHORITY THE PRESIDENT
PROCLAIMED JUNE 5, 1917, AS THE FIRST REGISTRATION DAY, /3/  AND ON
THAT DAY APPROXIMATELY 10,000,000 YOUNG MEN WERE REGISTERED.  /4/
THERE WERE NO MORE GENERAL DRAFT REGISTRATION UNTIL AUGUST 24, 1918,
WHEN THE PRESIDENT REQUIRED ALL THOSE MEN WHO HAD BECOME SUBJECT TO
REGISTRATION SINCE JUNE 5, 1917, TO COME IN AND REGISTER.  /5/  LATER
THAT YEAR CONGRESS AMENDED THE STATUTE, EXPANDED THE AGE GROUP SUBJECT
TO REGISTRATION, /6/  AND PROVIDED THAT "UPON PROCLAMATION BY THE
PRESIDENT . . . STATING THE TIME OR TIMES AND PLACE OF PLACES OF . . .
REGISTRATION, IT SHALL BE THE DUTY OF ALL PERSONS OF THE DESIGNATED
AGES . . . TO PRESENT THEMSELVES FOR AND SUBMIT TO REGISTRATION . . . .
"  40 STAT. 955-956.  ALTHOUGH THIS PROVISION SEEMINGLY WOULD HAVE
AUTHORIZED REGISTRATIONS ON DIFFERENT DAYS, THE PRESIDENT AGAIN ISSUED
A PROCLAMATION DESIGNATING A SINGLE DAY, SEPTEMBER 12, 1918, AS
REGISTRATION DAY FOR ALL THOSE SO SUBJECT.  /7/  THAT REGISTRATION WAS
THE LAST UNDER THE WORLD WAR I DRAFT.  IT IS THUS CLEAR THAT THROUGHOUT
THE ADMINSTRATION OF THE FIRST DRAFT LAW, REGISTRATION WAS THOUGHT OF
AS A SINGLE, INSTANTANEOUS ACT TO BE PERFORMED AT A GIVEN TIME, AND
FAILURE TO REGISTER AT THAT TIME WAS A COMPLETED CRIMINAL OFFENSE. 

AS EVENTS DEVELOPED PRIOR TO WHAT BECAME WORLD WAR II, CONGRESS
AGAIN DECIDED TO DRAFT YOUNG MEN FOR SERVICE IN THE ARMED FORCES.  IN
THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 IT WAS PROVIDED THAT MEN
SUBJECT TO REGISTRATION WERE TO REGISTER "AT SUCH TIME OR TIMES AND
PLACE OR PLACES, AND IN SUCH MANNER AND IN SUCH AGE GROUP OR GROUPS, AS
SHALL BE DETERMINED BY RULES AND REGULATIONS PRESCRIBED HEREUNDER."  54
STAT. 885.  WHILE THIS LANGUAGE WOULD AGAIN HAVE AUTHORIZED
REGISTRATION ON DIFFERENT DAYS FOR DIFFERENT MEN, THE FIRST
PROCLAMATION UNDER THE NEW ACT SET A UNIFORM DATE, OCTOBER 16, 1940,
FOR THE REGISTRATION OF ALL MEN.  /8/  IT WAS NOT UNTIL TWO YEARS LATER
THAT THE PRESIDENT FIRST ISSUED A PROCLAMATION SETTING FORTH DIFFERENT
DATES FOR THE REGISTRATION OF DIFFERENT GROUPS OF MEN, AND IN THAT SAME
PROCLAMATION THE PRESIDENT ESTABLISHED THE BASIC REGISTRATION PROCEDURE
OF THE PRESENT SYSTEM, THAT ALL YOUNG MEN SHALL REGISTER ON THEIR 18TH
BIRTHDAY.  /9/ 

AFTER THE 1940 ACT EXPIRED ON MARCH 31, 1947, CONGRESS AGAIN DECIDED
TO REGISTER MEN FOR THE DRAFT AND DECLARED THAT MEN BETWEEN THE AGES OF
18 AND 26 WOULD BE SUBJECT TO REGISTRATION.  SELECTIVE SERVICE ACT OF
1948, 62 STAT. 604.  SINCE THE AUTHORITY TO REGISTER UNDER THE 1940 ACT
HAD EXPIRED, IT WAS NECESSARY TO PROVIDE FOR THE INITIAL REGISTRATION
OF THE ENTIRE GROUP OF MEN BETWEEN 18 AND 26.  IN LANGUAGE IDENTIAL TO
THAT FOUND IN THE STATUTE INVOLVED IN THIS CASE, /10/  CONGRESS AGAIN
LEFT THE ADMINISTRATIVE DETAILS TO THE PRESIDENT AND AUTHORIZED
REGISTRATION "AT SUCH TIME OR TIMES AND PLACE OR PLACES" AS HE MIGHT
DESIGNATE.  WE DO NOT THINK THE IMPOSITION OF THE DUTY TO REGISTER ON
MEN BETWEEN 18 AND 26 AND THE PROVISION FOR REGISTRATION AT DIFFERENT
TIMES WAS INTENDED TO INDICATE THAT THE STATUTE OF LIMITATIONS DID NOT
BEGIN TO RUN WHEN THE CRIME WAS FIRST COMPLETE.  SINCE AT THE TIME OF
THE INITIAL REGISTRATION UNDER THE 1948 ACT THERE WERE MEN OF VARIOUS
AGES WHO HAD TO BE REGISTERED, THE ACT WAS PHRASED GENERALLY IN TERMS
OF A DUTY IMPOSED ON THE ENTIRE GROUP.  UNDER THIS AUTHORITY THE
PRESIDENT IN FACT REQUIRED REGISTRATION OF ALL MEN BETWEEN 18 AND 26
DURING THE MONTH OF SEPTEMBER 1948.  PERSONS OF DIFFERENT AGES WERE
REQUIRED TO REGISTER ON DIFFERENT DAYS, AND ALL THOSE BORN AFTER
SEPTEMBER 19, 1930, WERE REQUIRED TO REGISTER "ON THE DAY THEY ATTAIN
THE EIGHTEENTH ANNIVERSARY OF THE DAY OF THEIR BIRTH, OR WITHIN FIVE
DAYS THEREAFTER."  /11/  THE REGISTRATION PROVISIONS OF THAT ACT HAVE
REMAINED IN FORCE SINCE 1948, AND THERE HAS THUS BEEN A CONTINUAL
REGISTRATION OF 18-YEAR-OLDS SHORTLY AFTER THEIR BIRTHDAY.  WITH THE
EXCEPTION OF A FEW MEN WHO ARE NOT SUBJECT TO REGISTRATION WHEN THEY
ARE 18 BUT MAY BECOME SO LATER ON, /12/  THE EFFECT OF THESE PROVISIONS
HAS BEEN TO ELIMINATE THE NECESSITY FOR REGISTRATIONS OF MEN OLDER THAN
18.  VIEWED IN THE LIGHT OF HISTORY WE DO NOT THINK THE ACT INTENDED TO
TREAT CONTINUED FAILURE TO REGISTER AS A RENEWAL OF THE ORIGINAL CRIME
OR THE REPEATED COMMISSION OF NEW OFFENSES, BUT RATHER PERPETUATED THE
CONCEPTION OF THE FIRST REGISTRATION THAT A MAN MUST REGISTER AT A
PARTICULAR TIME AND HIS FAILURE TO DO SO AT THAT TIME IS A SINGLE
OFFENSE.  THAT TIME WILL NOT BE THE SAME DAY FOR ALL AS IT WAS IN 1917,
AND FROM THE SELECTIVE SERVICE SYSTEM'S VIEWPOINT THE PROCESS OF
REGISTRATION IS A "CONTINUING" ONE.  BUT FROM THE REGISTRANT'S
VIEWPOINT THE OBLIGATION ARISES AT A SPECIFIC TIME.  IN TOUSSIE'S CASE
IT AROSE WHEN HE TURNED 18.  HE WAS ALLOWED A FIVE-DAY PERIOD IN WHICH
TO FULFIL THE DUTY, BUT WHEN HE DID NOT DO SO HE THEN AND THERE
COMMITTED THE CRIME OF FAILING TO REGISTER. 

THE GOVERNMENT POINTS OUT THAT THE "CONTINUING DUTY" REGULATION HAS
BEEN IN EXISTENCE SINCE BEFORE THE PASSAGE OF THE 1948 ACT, /13/  AND
THAT MOST LOWER FEDERAL COURTS HAVE HELD THAT FAILING TO REGISTER IS A
CONTINUING OFFENSE FOR PURPOSES OF APPLYING THE STATUTE OF
LIMITATIONS.  /14/  IT IS SUGGESTED THAT SINCE CONGRESS HAS LEGISLATED
SEVERAL TIMES IN THIS FIELD, ITS FAILURE TO INDICATE THAT THE CRIME
SHOULD NOT BE TREATED AS A CONTINUING OFFENSE SUPPORTS THE GOVERNMENT'S
ARGUMENT THAT IT IS.  PETITIONER ON THE OTHER HAND SUGGESTS THAT
CONGRESS HAS ON OCCASION EXPLICITLY STATED THAT A CERTAIN OFFENSE WILL
BE DEEMED A CONTINUING ONE, /15/  AND ITS FAILURE TO DO SO IN THAT
STATUTE INDICATES THAT IT DID NOT INTEND TO ADOPT THAT THEORY.  SINCE
THERE IS NO SPECIFIC EVIDENCE THAT CONGRESS ACTUALLY WAS AWARE OF THIS
LIMITATIONS QUESTION WHEN IT ACTED-- WHATEVER WEIGHT SUCH EVIDENCE
MIGHT DESERVE-- AND SINCE WE ARE RELUCTANT TO IMPLY A CONTINUING
OFFENSE EXCEPT IN LIMITED CIRCUMSTANCES, WE CONCLUDE THAT ANY ARGUMENT
BASED ON CONGRESSIONAL SILENCE IS STRONGER IN FAVOR OF NOT CONSTRUING
THIS ACT AS INCORPORATING A CONTINUING-OFFENSE THEORY. 

UNLIKE OTHER INSTANCES IN WHICH THIS COURT HAS HELD THAT A
PARTICULAR STATUTE DESCRIBES A CONTINUING OFFENSE, THERE IS NO LANGUAGE
IN THIS ACT THAT CLEARLY CONTEMPLATES A PROLONGED COURSE OF CONDUCT. 
/16/  WHILE IT IS TRUE THAT THE REGULATION DOES IN EXPLICIT TERMS REFER
TO REGISTRATION AS A CONTINUING DUTY, WE CANNOT GIVE IT THE EFFECT OF
MAKING THIS CRIMINAL OFFENSE A CONTINUING ONE.  SINCE SUCH OFFENSES ARE
NOT TO BE IMPLIED EXCEPT IN LIMITED CIRCUMSTANCES, AND SINCE QUESTIONS
OF LIMITATIONS ARE FUNDAMENTALLY MATTERS OF LEGISLATIVE NOT
ADMINISTRATIVE DECISION, WE THINK THIS REGULATION SHOULD NOT BE RELIED
UPON EFFECTIVELY TO STRETCH A FIVE-YEAR STATUTE OF LIMITATIONS INTO A
13-YEAR ONE, UNLESS THE STATUTE ITSELF, APART FROM THE REGULATION,
JUSTIFIES THAT CONCLUSION.  /17/     THERE IS ALSO NOTHING INHERENT IN
THE ACT OF REGISTRATION ITSELF WHICH MAKES FAILURE TO DO SO A
CONTINUING CRIME.  FAILING TO REGISTER IS NOT LIKE A CONSPIRACY WHICH
THE COURT HAS HELD CONTINUES AS LONG AS THE CONSPIRATORS ENGAGE IN
OVERT ACTS IN FURTHERANCE OF THEIR PLOT.  SEE UNITED STATES V. KISSEL,
218 U.S. 601 (1910), GRUNEWALD V. UNITED STATES, 353 U.S. 391 (1957). 
IT IS IN THE NATURE OF A CONSPIRACY THAT EACH DAY'S ACTS BRING A
RENEWED THREAT TO THE SUBSTANTIVE EVIL CONGRESS SOUGHT TO PREVENT.  THE
FACT THAT THE FIRST DRAFT REGISTRATIONS CLEARLY WERE VIEWED AS
INSTANTANEOUS EVENTS AND NOT A CONTINUING PROCESS INDICATES THAT THERE
IS NOTHING INHERENT IN THE NATURE OF FAILING TO REGISTER THAT MAKES IT
A CONTINUING OFFENSE. 

WE DO NOT MEAN THAT THE ARGUMENT IN SUPPORT OF IMPLYING A CONTINUING
OFFENSE IN THIS CASE IS INSUBSTANTIAL, BUT IT IS AT BEST HIGHLY
EQUIVOCAL.  BASICALLY WE ARE FACED WITH THE TASK OF CONSTRUING A
SOMEWHAT AMBIGUOUS STATUTE IN ONE OF TWO WAYS.  ONE WAY WOULD LIMIT
INSTITUTION OF PROSECUTION TO A PERIOD OF FIVE YEARS FOLLOWING THE
INITIAL VIOLATION, WHILE THE OTHER COULD EFFECTIVELY EXTEND THE FINAL
DATE FOR PROSECUTION UNTIL AS LATE AS 13 YEARS AFTER THE CRIME IS FIRST
COMPLETE.  AS WE HAVE SAID BEFORE: 

"WHEN CHOICE HAS TO BE MADE BETWEEN TWO READINGS OF WHAT CONDUCT
CONGRESS HAS MADE A CRIME, IT IS APPROPRIATE, BEFORE WE CHOOSE THE
HARSHER ALTERNATIVE, TO REQUIRE THAT CONGRESS SHOULD HAVE SPOKEN IN
LANGUAGE THAT IS CLEAR AND DEFINITE.  WE SHOULD NOT DERIVE CRIMINAL
OUTLAWRY FROM SOME AMBIGUOUS IMPLICATION."  UNITED STATES V. UNIVERSAL
CORP., 344 U.S. 218, 221-222 (1952).  NOT INSIGNIFICANTLY THOSE
REMARDKS WERE ALSO MADE IN THE CONTEXT OF CONSIDERING THE CONTINUING
OFFENSE DOCTRINE.  IN LIGHT OF ALL THESE CONSIDERATIONS WE CONCLUDE
THAT THE DRAFT LAW DOES NOT INTEND TO PERMIT CRIMINAL PROSECUTION FOR
FAILING TO REGISTER AS LATE AS 13 YEARS AFTER THE INITIAL FAILURE. 
CONSEQUENTLY THE STATUTE OF LIMITATIONS BEGINS TO RUN AT THE INITIAL
FAILURE TO REGISTER AS REQUIRED BY LAW.  SINCE THE FACTS IN THIS CASE
CLEARLY SHOW THAT TOUSSIE FAILED IN HIS LEGAL OBLIGATION WHEN HE DID
NOT REGISTER PRIOR TO JUNE 28, 1959, THE STATUTE BEGAN TO RUN AT THAT
TIME AND PROSECUTION BASED ON AN INDICTMENT RETURNED ALMOST EIGHT YEARS
LATER WAS BARRED. 

IT SHOULD BE EMPHASIZED THAT THIS CONCLUSION DOES NOT MEAN THAT THE
GRAVITY OF THIS OFFENSE IS IN ANY WAY DIMINISHED.  FAILURE TO REGISTER
IS SUBJECT TO HEAVY CRIMINAL PENALTIES.  THE ONLY QUESTION IS WHETHER
THOSE PENALTIES MUST RESULT FROM A PROSECUTION BEGUN WITHIN FIVE YEARS
OR WHETHER THEY CAN BE DELAYED FOR A LONGER PERIOD.  WE ARE NOT
CONVINCED THAT LIMITING PROSECUTION TO A PERIOD OF FIVE YEARS FOLLOWING
THE INITIAL FAILURE TO REGISTER WILL SIGNIFICANTLY IMPAIR EITHER THE
ESSENTIAL FUNCTION OF RAISING AN ARMY OR THE PROSECUTION OF THOSE WHO
FAIL TO REGISTER.  WE DO FEEL THAT THE THREAT OF CRIMINAL PUNISHMENT
AND THE FIVE-YEAR STATUTE OF LIMITATIONS IS A SUFFICIENT INCENTIVE TO
ENCOURAGE COMPLIANCE WITH THE REGISTRATION REQUIREMENTS.  IF CONGRESS
HAD FELT OTHERWISE IT COULD EASILY HAVE PROVIDED FOR A LONGER PERIOD OF
LIMITATIONS.  IT HAS NOT YET DONE SO. 

THERE IS NO DOUBT THAT THE JURY FOUND THAT TOUSSIE WILLFULLY FAILED
TO REGISTER AND THEREBY SUBJECT HIMSELF TO THE SAME POSSIBILITY OF
MILITARY SERVICE THAT FACES OTHER YOUNG MEN WHO FULLY COMPLY WITH THEIR
LEGAL OBLIGATIONS.  THERE IS SOME CAUSE TO FEEL THAT DISMISSAL OF THE
INDICTMENT IN SUCH A CASE IS AN INJUSTICE IN A SOCIETY BASED ON FULL
AND EQUAL APPLICATION OF THE LAWS.  BUT WHILE CONGRESS HAS SAID THAT
FAILURE TO REGISTER IS A CRIME, IT HAS ALSO MADE PROSECUTION SUBJECT TO
THE STATUTE OF LIMITATIONS.  "EVERY STATUTE OF LIMITATIONS, OF COURSE,
MAY PERMIT A ROGUE TO ESCAPE," PENDERGAST V. UNITED STATES, 317 U.S.
412, 418 (1943), BUT WHEN A COURT CONCLUDES THAT THE STATUTE DOES BAR A
GIVEN PROSECUTION, IT MUST GIVE EFFECT TO THE CLEAR EXPRESSION OF
CONGRESSIONAL WILL THAT IN SUCH A CASE "NO PERSON SHALL BE PROSECUTED,
TRIED OR PUNISHED,"  THE JUDGMENT OF CONVICTION IN THIS CASE MUST
THEREFORE BE

              REVERSED. 

/1/  50 U.S.C. APP. 453.  THIS ACT WAS AMENDED BY THE MILITARY
SELECTIVE SERVICE ACT OF 1967, 81 STAT. 100, BUT THOSE AMENDMENTS DID
NOT CHANGE THIS PROVISION.  FAILURE TO PERFORM THIS DUTY IS PUNISHABLE
BY FINE, IMPRISONMENT, OR BOTH.  50 U.S.C. APP. 462(A) (1964 ED., SUPP.
IV). 

/2/  PROCLAMATION NO. 2799, JULY 20, 1948, 62 STAT. 1531.  THE
PROCLAMATION WAS FIRST ISSUED UNDER THE AUTHORITY OF THE SELECTIVE
SERVICE ACT OF 1948, 62 STAT. 604, BUT IT WAS CONTINUED AFTER THE
PASSAGE OF THE UNIVERSA; MILITARY TRAINING AND SERVICE ACT BY
PROCLAMATION NO. 2942, AUGUST 30, 1951, 65 STAT. C35. 

/3/  PROCLAMATION OF MAY 18, 1917, 40 STAT. 1664. 

/4/  U.S. SELECTIVE SERVICE SYSTEM, REGISTRATION AND SELECTIVE
SERVICE LL (1946). 

/5/  PROCLAMATION OF AUGUST 13, 1918, 40 STAT. 1834. 

/6/  THE FIRST REGISTRATION WAS OF ALL MEN BETWEEN THE AGES OF 21
AND 30.  40 STAT. 80.  IN 1918 CONGRESS EXPANDED THE GROUP TO ALL THOSE
BETWEEN THE AGES OF 18 AND 45.  40 STAT. 955. 

/7/  PROCLAMATION OF AUGUST 31, 1918, 40 STAT. 1840. 

/8/  PROCLAMATION NO. 2425, SEPTEMBER 16, 1940, 54 STAT. 2739. 

/9/  PROCLAMATION NO. 2572, NOVEMBER 17, 1942, 56 STAT. 1982. 

/10/  SEE SUPRA, AT 113. 

/11/  SEE SUPRA, AT 113, AND PROCLAMATION NO. 2799, JULY 20, 1948, 62
STAT. 1531. 

/12/  FOR EXAMPLE, STUDENTS AT CERTAIN MILITARY COLLEGES ARE
EXEMPTED FROM REGISTRATION.  50 U.S.C. APP. 456(A)(1) (1964 ED., SUPP.
IV).  IF A STUDENT IN SUCH AN INSTITUTION WITHDRAWS, HE WOULD
PRESUMABLY REQUIRED TO REGISTER SINCE THE ACT SPECIFICALLY STATES THAT
"(NO EXEMPTION FROM REGISTRATION . . . SHALL CONTINUE AFTER THE CAUSE
THEREFOR CEASES TO EXIST."  50 U.S.C. APP. 456(K).  THUS SUCH A STUDENT
MAY NOT BE REQUIRED TO REGISTER UNTIL SOME TIME AFTER HIS 18TH
BIRTHDAY. 

/13/  THE REGULATION WAS FIRST PROMULGATED UNDER THE 1940 ACT ON
JUNE 4, 1941.  SELECTIVE SERVICE SYSTEM REGULATIONS VOL. 2, SEC. IX,
205(D), 6 FED.REG.  2747. 

/14/  SEE FOGEL V. UNITED STATES, 162 F.2D 54 (C.A. 5TH CIR.), CERT.
DENIED, 332 U.S. 791 (1947); GARA V. UNITED STATES, 178 F.2D 38, 40
(C.A. 6TH CIR. 1949), AFF'D BY AN EQUALLY DIVIDED COURT, 340 U.S. 857
(1950); MCGREGOR V. UNITED STATES, 206 F.2D 583 (C.A. 4TH CIR. 1953);
CF. UNITED STATES V. GUERTLER, 147 F.2D 796 (C.A. 2D CIR. 1945).  BUT
CF. UNITED STATES V. SALBERG, 287 F. 208 (D.C.N.D. OHIO 1923). 

/15/  CONGRESS HAS PROVIDED THAT CONCEALMENT OF A BANKRUPT'S ASSETS
SHALL "BE DEEMED TO BE A CONTINUING OFFENSE . . . AND THE PERIOD OF
LIMITATIONS SHALL NOT BEGAIN TO RUN UNTIL . . . FINAL DISCHARGE OR
DENIAL OF DISCHARGE."  18 U.S.C. 3284. 

/16/  CF. UNITED STATES V. CORES, 356 U.S. 405 (1958), IN WHICH THE
COURT HELD, FOR VENUE PURPOSES, THAT THE STATUTE PROHIBITING ALIEN
CREWMEN FROM REMAINING IN THE UNITED STATES AFTER THEIR PERMITS EXPIRED
CONTEMPLATED THAT THE OFFENSE WOULD CONTINUE AS LONG AS THE CREWMAN
REMAINED IN THIS COUNTRY AND THE STATUTE OF LIMITATIONS DID NOT START
TO RUN WHEN HE FIRST OVERSTAYED HIS PERMIT.  IN THAT CASE WE STATED
THAT "(SECTION 252(C) PUNISHES '(ANY ALIEN CREWMAN WHO WILLFULLY
REMAINS IN THE UNITED STATES IN EXCESS OF THE NUMBER OF DAYS ALLOWED.' 
THE CONDUCT PROSCRIBED IS THE AFFIRMATIVE ACT OF WILLFULLY REMAINING,
AND THE CRUCIAL WORD 'REMAINS' PERMITS NO CONNOTATION OTHER THAN
CONTINUING PRESENCE."  ID., AT 408.  SEE ALSO ARMOUR PACKING CO. V.
UNITED STATES, 209 U.S. 56 (1908), IN WHICH WE HELD THAT, FOR VENUE
PURPOSES, VIOLATIONS OF THE ELKINS ACT, 32 STAT. 847, WERE CONTINUING
OFFENSES.  IN THAT CASE THE STATUTE SPECIFICALLY PROVIDED THAT "(EVERY
VIOLATION . . . SHALL BE PROSECUTED IN ANY COURT OF THE UNITED STATES
HAVING JURISDICTION OF CRIMES WITHIN THE DISTRICT IN WHICH SUCH
VIOLATION WAS COMMITTED OR THROUGH WHICH THE TRANSPORTATION MAY HAVE
BEEN CONDUCTED . . . . "  ID., AT 73.  BOTH OF THESE CASES DEALT WITH
VENUE AND DID NOT INVOLVE THE STATE OF LIMITATIONS QUESTION PRESENTED
IN THIS CASE. 

/17/  IT IS SIGNIFICANT THAT THE COURTSTHAT HAVE CONCLUDED THAT
FAILURE TO REGISTER IS A CONTINUING OFFENSE HAVE DONE SO BY RELYING
EXPLICITLY ONTHE REGULATION.  SEE FOGEL V. UNITED STATES, SUPRA, AT 55;
MCGREGOR V. UNITED STATES, SUPRA, AT 584; GARA V. UNITED STATES, SUPRA,
AT 39; AND THE OPINIONS BELOW IN THIS CASE, 280 F.SUPP., AT 474, 410
F.2D, AT 1157.  IT IS EQUALLY SIGNIFICANT THAT THE ONLY COURT THAT
CONCLUDED THAT THE OFFENSE WAS NOT A CONTINUING ONE DID SO AT A TIME
WHEN THERE WAS NO "CONTINUING-DUTY?  REGULATION ISSUED TO IMPLEMENT THE
REGISTRATION PROVISIONS.  UNITED STATES V. SALBERG, SUPRA, INTERPRETING
THE 1917 DRAFT ACT, HELD THAT FAILURE TO REGISTER WAS NOT A CONTINUING
OFFENSE.  THE FIRST CONTINUING-DUTY REGULATION WAS PROMULGATED IN
1941.  SEE N. 13, SUPRA.  THESE DECISIONS SUPPORT OUR CONCLUSION THAT
THE STATUTE ITSELF, APART FROM ANY RELIANCE ON THE ADMINISTRATIVE
REGULATION, DOES NOT REQUIRE THAT IT BE CONSTRUED TO INCORPORATE A
CONTINUING OFFENSE THEORY.  WE DO NOT HOLD, AS THE DISSENT SEEMS TO
IMPLY, POST, AT 127, THAT THE CONTINUING-DUTY REGULATION IS
UNAUTHORIZED BY THE ACT.  ALL WE HOLD IS THAT NEITHER THE REGULATION
NOR THE ACT ITSELF REQUIRES THAT FAILURE TO REGISTER BE TREATED AS THE
TYPE OF OFFENSE THAT EFFECTIVELY EXTENDS THE STATUTE OF LIMITATIONS. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE HARLAN
JOIN, DISSENTING. 

THE GENERAL STATUTE OF LIMITATIONS PROVIDES IN PERTINENT PART THAT
"(EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO PERSON SHALL BE
PROSECUTED . . . UNLESS THE INDICTMENT IS FOUND . . . WITHIN FIVE YEARS
NEXT AFTER SUCH OFFENSE SHALL HAVE BEEN COMMITTED."  18 U.S.C. 3282. 
THE MAJORITY HOLDS THAT THIS STATUTE BARS PETITIONER'S PROSECUTION,
SHORTLY BEFORE HIS 26TH BIRTHDAY, FOR FAILING EVER TO HAVE REGISTERED
FOR THE DRAFT.  THAT CONCLUSION, I SUBMIT, IS SUPPORTED BY NEITHER THE
LANGUAGE, THE PURPOSE, NOR THE HISTORY OF THE APPLICABLE SELECTIVE
SERVICE ACTS. 

IT IS AT ONCE CLEAR THAT NOTHING IS GAINED BY STRESSING THAT THE
GENERAL STATUTE OF LIMITATIONS APPLIES "(EXCEPT AS TOHERWISE EXPRESSLY
PROVIDED BY LAW."  THE QUESTION IN THIS CASE IS NOT WHETHER THE FIVE
YEAR STATUTE APPLIES, BUT WHEN IT BEGINS TO RUN.  THAT QUESTION IN TURN
DEPENDS ON WHAT THE "OFFENSE" IS FOR WHICH PETITIONER IS BEING TRIED,
AND WHEN IT WAS THAT HE COMMITTED THAT OFFENSE.  IN THE TYPICAL CASE,
AN OFFENSE IS COMPLETE AS SOON AS EVERY ELEMENT IN THE CRIME OCCURS,
AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT DATE.  BUT IN
THE CASE OF A "CONTINUING OFFENSE," THE CRIME IS NOT EXHAUSTED FOR
PURPOSES OF THE STATUTE OF LIMITATIONS AS LONG AS THE PROSCRIBED COURSE
OF CONDUCT CONTINUES.  UNITED STATES V. CORES, 356 U.S. 405, 409
(1958); UNITED STATES V. KISSEL, 218 U.S. 601, 607 (1910); SEE MODEL
PENAL CODE SEC. 1.07, COMMENT (TENT.  DRAFT NO. 5 1956).  THE QUESTION
INTO WHICH CATEGORY A GIVEN OFFENSE FALLS HAS LONG BEEN HELD TO BE A
ENTIRELY A MATTER OF STATUTORY INTERPRETATION.  SEE, E.G., UNITED
STATES V. CORES, SUPRA; PENDERGAST V. UNITED STATES, 317 U.S. 412, 419
421 (1943); BRAMBLETT V. UNITED STATES, 97 U.S.APP.D.C. 330, 332, 231
F.2D 489, 491, CERT. DENIED, 350 U.S. 1015 (1956). 

IN THIS CASE, THE OFFENSE DERIVES FROM 50 U.S.C. APP. 453 AND 462(A)
(1964 ED. AND SUPP. IV).  THE LATTER SECTION MAKES IT A CRIME TO EVADE
REGISTRATION OR TO "NEGLECT OR REFUSE TO PERFORM ANY DUTY" REQUIRED BY
THE SELECTIVE SERVICE LAWS.  THE FORMER SECTION-- 453-- SPELLS OUT THE
"DUTY" THAT PETITIONER IS CHARGED WITH FAILING TO PERFORM HERE: 

"(IT SHALL BE THE DUTY OF EVERY MALE CITIZEN OF THE UNITED STATES,
AND EVERY OTHER MALE PERSON NOW OR HEREAFTER IN THE UNITED STATES, WHO,
ON THE DAY OR DAYS FIXED FOR THE FIRST OR ANY SUBSEQUENT REGISTRATION,
IS BETWEEN THE AGES OF EIGHTEEN AND TWENTY-SIX, TO PRESENT HIMSELF FOR
AND SUBMIT TO REGISTRATION AT SUCH TIME OR TIMES AND PLACE OR PLACES,
AND IN SUCH MANNER, AS SHALL BE DETERMINED BY PROCLAMATION OF THE
PRESIDENT AND BY RULES AND REGULATIONS PRESCRIBED HEREUNDER."  BY ANY
NATURAL READING OF THIS LANGUAGE, AT LEAST WHERE THE PRESIDENT HAS
ESTABLISHED "TIMES" AND "PLACES" FOR CONTINUALLY ACCEPTING
REGISTRATIONS, THE "OFFENSE" CREATED IS THE OFFENSE OF BEING AT ONE AND
THE SAME TIME, UNREGISTERED AFTER HAVING BEEN REQUIRED TO REGISTER, AND
BEING BETWEEN THE AGES OF 18 AND 26.  INDEED, COUPLED WITH SEC. 462'S
PROVISION FOR PUNISHMENT OF ANYONE WHO "EVADES" REGISTRATION, THIS
CRIME IS VERY SIMILAR TO THE CRIME COMMITTED BY AN ALIEN WHO UNLAWFULLY
"REMAINS" IN THE COUNTRY.  SEE UNITED STATES V. CORES, SUPRA; MAJORITY
OPINION, ANTE, AT 120 N. 16.  UNDER THIS VIEW OF THE ACT, THE ONLY
QUESTION THAT THE STATUTE OF LIMITATIONS RAISES IS WHETHER, AT ANY TIME
WITHIN FIVE YEARS PRECEDING THE INDICTMENT, THOSE TWO CHARACTERISTICS--
BEING UNREGISTERED AND BETWEEN THE SPECIFIED AGE LIMITS-- ACCURATELY
DESCRIBED THE ACCUSED. 

THE MAJORITY CONCLUDES, HOWEVER, THAT THE ONLY DUTY PRESCRIBED BY
SEC. 453 IS A DUTY TO REGISTER ON THOSE SPECIFIC DAYS-- AND THOSE DAYS
ONLY-- DECLARED BY THE PRESIDENT FOR INITIAL REGISTRATIONS.  IN THIS
CASE, BY PRESIDENTIAL PROCLAMATION, PERSONS NOT YET 18 IN 1948 WERE TO
"BE REGISTERED ON THE DAY THEY ATTAIN THE EIGHTEENTH ANNIVERSARY OF THE
DAY OF THEIR BIRTH, OR WITHIN FIVE DAYS THEREAFTER."  ACCORDING TO THE
MAJORITY, ONCE THE FIFTH DAY HAS PASSED, THE UNREGISTERED 18-YEAR-OLD,
ALTHOUGH HE HAS INDEED COMMITTED AN OFFENSE, IS NO LONGER UNDER ANY
FURTHER OBLIGATION TO REGISTER.  THAT CONCLUSION IS WHOLLY AT ODDS WITH
THE PURPOSE OF THE SELECTIVE SERVICE ACT AS A WHOLE AND THIS SECTION IN
PARTICULAR, AS WELL AS WITH THE REGULATIONS, LONGSTANDING
ADMINISTRATIVE INTERPRETATION, AND THE PRESIDENTIAL PROCLAMATION
ITSELF.     SINCE 1941, SELECTIVE SERVICE REGULATIONS, ISSUED UNDER
AUTHORITY EXPLICITLY GRANTED THE PRESIDENT, 50 U.S.C. APP. 460 (1964
ED. AND SUPP. IV); 32 CFR PT. 1611 (INVOKING AUTHORITY UNDER SEC. 460),
HAVE PROVIDED THAT: 

"THE DUTY OF EVERY PERSON SUBJECT TO REGISTRATION TO PRESENT HIMSELF
FOR AND SUBMIT TO REGISTRATION SHALL CONTINUE AT ALL TIMES, AND IF FOR
ANY REASON ANY SUCH PERSON IS NOT REGISTERED ON THE DAY OR ONE OF THE
DAYS FIXED FOR HIS REGISTRATION, HE SHALL IMMEDIATELY PRESENT HIMSELF
FOR AND SUBMIT TO REGISTRATION BEFORE THE LOCAL BOARD IN THE AREA WHERE
HE HAPPENS TO BE."  32 CFR 1611.7(C).  IF THERE WAS ANY DOUBT AS TO
WHETHER THE DUTY IMPOSED BY SEC. 453 EXTENDS BEYOND THE FIFTH DAY AFTER
PETITIONER'S BIRTHDAY, THIS REGISTRATION SURELY SETS THAT ISSUE AT
REST.  /1/  INDEED, THE COURT APPARENTLY CONCEDES AS MUCH SINCE IT
DECIDES TO FALL BACK ON THE THEORY THAT THE REGULATION IS NOT
AUTHORIZED BY THE ACT.  /2/ 

THAT POSITION, HOWEVER, IS SIMPLY UNTENABLE.  IN ADDITION TO THE
GENERAL AUTHORIZATION TO THE PRESIDENT IN SEC. 460(B) "TO PRESCRIBE THE
NECESSARY RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS
TITLE," SEC. 453 ITSELF EXPRESSLY REQUIRES REGISTRATION "AT SUCH TIME
OR TIMES AND PLACE OR PLACES, AND IN SUCH MANNER, AS SHALL BE
DETERMINED BY PROCLAMATION OF THE PRESIDENT AND BY RULES AND
REGULATIONS PRESCRIBED HEREUNDER."  THE MAJORITYS REFERENCE TO THE 1917
ACT, IF IT PROVES ANYTHING, PROVES JUST THE OPPOSITE OF THE COURT'S
CONCLUSION.  UNDER THAT ACT, THE PRESIDENT PRESCRIBED ONE DAY WHEN
REGISTRATION WAS TO TAKE PLACE, UTILIZING LOCAL ELECTION PRECINCTS AND
A REGISTRATION SYSTEM THAT WERE NOT WELL ADAPTED TO TAKE REGISTRATIONS
ON ANY OTHER DAY.  /3/  BY 1942, THE SYSTEM HAD BEEN STREAMLINED TO THE
POINT WHERE LOCAL BOARDS WERE OPEN EVERY DAY FOR THE PURPOSE OF
ACCEPTING NEW REGISTRATIONS.  THE CURRENT REGULATIONS ARE NOTHING MORE
OR LESS THAN A SETTING OF "TIMES" AND "PLACES" (YOUR NEAREST LOCAL
BOARD DURING THE USUAL BUSINESS HOURS) /4/  FOR LATE AS WELL AS TIMELY
REGISTRATINS.  WITHIN FIVE YEARS PRIOR TO THE BRINING OF THIS
INDICTMENT, PETITIONER-- IN THE WORDS OF THE STATUTE-- HAD A "TIME" AND
A "PLACE" TO REGISTER, "DETERMINED BY PROCLAMATION OF THE PRESIDENT AND
BY RULES AND REGULATIONS PRESCRIBED" BY THE PRESIDENT. 

DESPITE THE MAJORITY'S IMPLICATION TO THE CONTRARY, ANTE, AT 120,
THERE IS SPECIFIC EVIDENCE THAT CONGRESS ACTUALLY WAS AWARE OF THIS
QUESTION WHEN IT ACTED, AND THAT CONGRESS DID NOT EXPECT THAT THE DUTY
TO REGISTER WOULD CEASE MERELY BECAUSE THE TIMES SET FOR INITIAL
REGISTRATION HAD PASSED.  DURING THE HEARINGS ON THE 1940 ACT, SENATOR
REYNOLDS ASKED THEN-MAJOR HERSHEY WHETHER A PERSON COULD AVOID HIS DUTY
TO REGISTER ALTOGETHER BY, FOR EXAMPLE, JOINING THE NATIONAL GUARD--
WHICH WOULD GIVE HIM AN EXEMPTION-- AND THEN GETTING OUT AS SOON AS
REGISTRATION DAY HAD PASSED.  MAJOR HERSHEY REPLIED THAT SUCH PERSONS
WOULD HAVE TO REGISTER AS SOON AS THEY LOST THEIR EXEMPT STATUS, AND HE
PERSISTED IN THAT ANSWER DESPITE THE SENATOR'S PUZZLEMENT (LIKE THE
MAJORITY'S) OVER THE FACT THAT THE REGISTRATION PERIOD WOULD SEEM TO
HAVE EXPIRED.  THE SENATOR FINALLY ACCEPTED MAJOR HERSHEY'S EXPLANATION
AFTER ASSURING HIMSELF THAT "YOUR REGISTRATION BOARDS ARE AT ALL TIMES
IN SESSION . . . (AAND THEY WOULD BE GIVEN THE OPPORTUNITY TO
REGISTER."  /5/  EVEN THE RELEVANT PRESIDENTIAL PROCLAMATION, WHOLLY
APART FROM THE "CONTINUING-DUTY" REGULATION, ACCORDS WITH THIS VIEW
THAT THE DUTY TO REGISTER IS NOT DEFINED SOLELY IN TERMS OF THE SETTING
OF THE SUN ON THE DAY ORIGINALLY FIXED FOR REGISTRATION.  THE
PROCLAMATION DECLARES THAT A PERSON UNABLE TO REGISTER ON THE DAY FIXED
FOR HIS REGISTRATION "BECAUSE OF CIRCUMSTANCES BEYOND HIS CONTROL . . .
SHALL DO SO AS SOON AS POSSIBLE AFTER THE CAUSE FOR SUCH INABILITY
CEASES TO EXISTS."  /6/  APPARENTLY, THE MAJORITY CONCEDES THAT IN WHAT
IT CALLS THESE FEW "EXCEPTIONS," THE ACT DOES IMPOSE A VALID DUTY TO
REGISTER ON A DAY OTHER THAN THE INITIAL DATE.  THAT BEING THE CASE, IT
IS INCONCEIVABLE TO ME THAT CONGRESS CAN BE SAID TO HAVE AUTHORIZED THE
PRESIDENT TO REQUIRE LATE REGISTRATION OF THOSE WITH A GOOD EXCUSE FOR
THEIR TARDINESS, BUT NOT TO HAVE SIMILARLY AUTHORIZED HIM TO REQUIRE
LATE REGISTRATION OF THOSE WITH A BAD EXCUSE OR NO EXCUSE AT ALL. 

THE "CONTINUING-DUTY" VIEW OF SEC. 453 RECEIVES SUPPORT FROM AN
APPRAISAL OF THE SECTION'S PURPOSE IN THE CONTEXT OF THE STATUTE
CONSIDERED AS A WHOLE.  IMMEDIATELY FOLLOWING THE REGISTRATION
REQUIREMENT, SEC. 454 DECLARES THAT "EVERY MALE CITIZEN . . . WHO IS
BETWEEN THE AGES OF 18 YEARS AND 6 MONTHS AND 26 YEARS, AT THE TIME
FIXED FOR HIS REGISTRATION, OR WHO ATTAINS THE AGE OF 18 YEARS AND 6
MONTHS AFTER HAVEING BEEN REQUIRED TO REGISTER PURSUANT TO (SEC. 453)
SHALL BE LIABLE FOR TRAINING AND SERVICE IN THE ARMED FORCES . . . . "
SINCE EVEN UNDER THE MAJORITY'S VIEW, PETITIONER WAS AT ONE TIME A
PERSON "REQUIRED TO REGISTER," THIS SECTION, BY ITS LITERAL TERMS, MADE
HIM STILL LIABLE FOR INDUCTION AT THE TIME THIS INDICTMENT WAS
BROUGHT.  BUT IF HE STILL HAD A DUTY TO SERVE, THEN IT IS COMPLETELY
ILLOGICAL TO CONCLUDE THAT HE DID NOT ALSO STILL HAVE A DUTY TO
REGISTER.  THE WHOLE PURPOSE OF THE REGISTRATION SECTION IS TO PROVIDE
A MANPOWER POOL FROM WHICH INDUCTEES CAN BE SELECTED; REGISTRATION IS
BUT THE NECESSARY FIRST STEP IN THE CONGRESSIONAL SCHEME FOR
PROCESSING, CLASSIFYING, AND SELECTING INDIVIDUALS FOR TRAINING.  /7/
SEE UNITED STATES V. O'BRIEN, 391 U.S. 367, 377 (1968).  AND THE
INSTANT REGULATION, DECLARING THAT THE DUTY TO REGISTER "SHALL CONTINUE
AT ALL TIMES," IS BUT ONE OF THE NUMEROUS PROVISIONS AND REGULATIONS IN
THE SELECTIVE SERVICE ACT THAT REFLECTS THE CONCEPT THAT CONTINUING
DUTIES ARE ESSENTIAL IF THIS ORDERLY INDUCTION PROCESS IS TO TAKE
PLACE.  /8/  EVEN APART FROM THE SETTLED RULE THAT THE "INTERPRETATION
EXPRESSLY PLACED ON A STATUTE BY THOSE CHARGED WITH ITS ADMINISTRATION
MUST BE GIVEN WEIGHT BY COURTS FACED WITH THE TASK OF CONSTRUING THE
STATUTE,"  E.G., ZEMEL V. RUSK, 381 U.S. L, 11 (1965), IT SEEMS CLEAR
TO ME THAT THE REGULATION MERELY SPELLS OUT AN INTENT ALREADY INHERENT
IN THE STATUTORY SCHEME.  /9/  YET THE MAJORITY HOLDS THAT WHEN DAWN
BREAKS ON THE UNREGISTERED MALE, SIX DAYS AFTER HIS 18TH BIRTHDAY, HIS
CRIME IS COMPLETE AND ENDED; THOUGH THE ACT SPECIFICALLY DECLARES THAT
HE IS STILL LIABLE FOR INDUCTION, HE HAS NO OBLIGATION TO TAKE THE STEP
THAT MAKES THAT INDUCTION POSSIBLE.  I FOR ONE CANNOT ASCRIBE SUCH
INCONSISTENT INTENT TO CONGRESS. 

THE COURT DOES NOT EVEN HAVE THE EXCUSE THAT ITS CONSTRUCTION IS
REQUIRED IN ORDER TO AVOID A SERIOUS CONSTITUTIONAL PROBLEM. 
PETITIONER HAS ARGUED THAT IF HIS DUTY TO REGISTER CONTINUES, HE CANNOT
BE PUNISHED FOR FAILING TO COMPLY SINCE LATE REGISTRATION WOULD
NECESSARILY BE INCRIMINATING.  SEE LEARY V. UNITED STATES, 395 U.S. 6
(1969); MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968); GROSSO V.
UNITED STATES, 390 U.S. 62 (1968).  BUT THE COURT OF APPEALS BELOW DREW
DEAD AIM ON THE DEFECT IN THIS ARGUMENT, AND THE COURT'S OPINION WISELY
REFRAINS FROM RELYING ON THE SUGGESTED FIFTH AMENDMENT PROBLEM.  FOR IF
THIS IS A CONTINUING OFFENSE, PETITIONER-- AS THE GOVERNMENT CONCEDES--
IS SUBJECT TO ONLY ONE PROSECUTION BASED ON HIS SINGLE UNINTERRUPTED
COURSE OF CONDUCT.  SEE MODEL PENAL CODE, SEC. 1.08, COMMENT 33-34
(TENT.  DRAFT NO. 5, 1956).  PETITIONER WAS SUBJECT TO THAT PROSECUTION
SIX DAYS AFTER HIS 18TH BIRTHDAY; HIS CONTINUED FAILURE TO REGISTER DID
NOT SUBJECT HIM TO ANY ADDITIONAL PENALTY BEYOND WHAT HE HAD ALREADY
RISKED.  THUS, THOUGH IT MAY BE CONCEDED THAT LATE REGISTRATION WOULD
HAVE BEEN INCRIMINATING, THE STATUTE HERE, UNLIKE THE STATUTES IN
MARCHETTI, GROSSO, AND LEARY DOES NOT COMPEL INCRIMINATION.  PETITIONER
HAD NOTHING TO GAIN IN THE FORM OF AVOIDING AN ADDITIONAL PENALTY BY
REGISTERING AND REVEALING THAT HIS REGISTRATION WAS LATE.  THE ONLY
POSSIBLE "INCENTIVE" IN THIS CASE STEMS FROM THE FACT THAT BY
REGISTERING, PETITIONER WOULD HAVE CAUSED THE STATUTE OF LIMITATIONS TO
COMMENCE RUNNING, THUS GIVING THE GOVERNMENT ONLY FIVE YEARS IN WHICH
TO PROSECUTE INSTEAD OF LEAVING PROSECUTION OPEN UNTIL AGE 31.  /10/
TO SUGGEST THAT THIS POSSIBILITY OF STARTING THE STATUTE RUNNING IS
SUFFICIENTLY "ATTRACTICE" TO AMOUNT TO "COMPULSION" FOR PURPOSES OF THE
FIFTH AMENDMENT IS PUREST FANCY. 

THE "CONTINUING OFFENSE" IS HARDLY A STRANGER TO AMERICAN
JURISPRUDENCE.  THE CONCEPT HAS BEEN EXTENDED TO EMBRACE SUCH CRIMES AS
EMBEZZLEMENT, /11/  CONSPIRACY, /12/  BIGAMY, /13/  NUISANCE, /14/
FAILURE TO PROVIDE SUPPORT, /15/  REPEATED FAILURE TO FILE REPORTS,
/16/  FAILURE TO REGISTER UNDER THE ALIEN REGISTRATION ACT, /17/
FAILURE TO NOTIFY THE LOCAL BOARD OF A CHANGE IN ADDRESS, /18 AND,
UNTIL TODAY, FAILURE TO REGISTER FOR THE DRAFT.  /19/  SINCE THE
CONTINUING-OFFENSE CONCEPT TOO FREELY APPLIED CAN LEAD TO TENSION WITH
THE PURPOSES OF A STATUTE OF LIMITATIONS, WE SHOULD UNDOUBTEDLY
APPROACH THE TASK OF STATUTORY INTERPRETATION WITH "A PRESUMPTION
AGAINST A FINDING THAT AN OFFENSE IS A CONTINUING ONE . . . . "  MODEL
PENAL CODE SEC. 1.07, COMMENT (TENT.  DRAFT NO. 5, 1956).  BUT THE
PRESUMPTION IS BY ITS NATURE REBUTTABLE; IF IT IS EVER TO GIVE WAY, IT
MUST SURELY DO SO IN A CASE SUCH AS THIS WHERE EVERY OTHER GUIDE TO
STATUTORY INTERPRETATION POINTS TO A CONTRARY LEGISLATIVE INTENT.  TO
HOLD OTHERWISE-- TO ERECT AS THE MAJORITY DOES AN ABSOLUTE BAR TO
FINDING A CONTINUING OFFENSE IN THE ABSENCE OF EXPRESS STATUTORY
LANGUAGE-- IS TO SHIRK OUR JUDICIAL RESPONSIBLITY OF INTERPRETING ACTS
OF CONGRESS AS THEY COME TO US, WITHOUT INSISTING THAT CONGRESS MAKE
OUR TASK EASIER BY USING SOME PARTICULAR FORM OF WORDS TO EXPRESS ITS
INTENT.  /20/  OUR OWN CASES DISTINGUISH THE "INSTANTANEOUS" FROM THE
"CONTINUING" OFFENSE ON THE THEORY THAT IN THE FORMER CASE, THE ILLEGAL
AIM IS ATTAINED AS SOON AS EVERY ELEMENT OF THE CRIME HAS OCCURRED,
WHEREAS IN THE LATTER CASE, THE UNLAWFUL COURSE OF CONDUCT IS "SET ON
FOOT BY A SINGLE IMPULSE AND OPERATED BY AN UNINTERMITTENT FORCE,"
UNTIL THE ULTIMATE ILLEGAL OBJECTIVE IS FINALLY ATTAINED.  UNITED
STATES V. MIDSTATE CO., 306 U.S. 161, 166 (1939); SEE ALSO UNITED
STATES V. UNIVERSAL CORP., 344 U.S. 218, 224 (1952).  THE LATTER
DEFINITION FITS THIS CASE PRECISELY.  BY HIS OWN TESTIMONY, PETITIONER
ADMITS THAT HE SET OUT TO EVADE REGISTRATION AND LIABILITY FOR THE
DRAFT.  THAT AIM COULD ONLY BE ACCOMPLISHED BY REMAINING UNREGISTERED
UNTIL HE WAS PAST 26-- THE AGE OF PRIME LIABILITY.  IF HE HAD USCCEEDED
IN REACHING 26 AND ESCAPTING LIABILITY, THE GOVERNMENT SHOULD HAVE ITS
FIVE YEARS TO DETECT AND PUNISH HIS ILLEGAL COURSE OF CONDUCT.  AS IT
IS, THE COURT HOLDS THAT PETITIONER NOT ONLY SUCCEEDED IN HIS AIM, BUT
WAS IMMUNE FROM PROSECUTION FOR HIS UNLAWFUL CONDUCT AT THE AGE OF 23. 
WHILE ALL AROUND HIM, YOUNG MEN WERE BEING INDUCTED, 26-YEAR-OLDS
FIRST, PETITIONER AT 18 YEARS 6 DAYS IF FOREVER FREE OF ANY DUTY-- AND
AT 23 IS FOREVER FREE FROM PROSECUTION FOR HIS INITIAL FAILURE-- TO
PLACE HIMSELF, LIKE THEM, INTO THE POOL FROM WHICH INDUCTEES ARE
SELECTED.  I CANNOT AGREE.  I WOULD AFFIRM. 

/1/  DESPITE THE MAJORITY'S ASSERTION TO THE CONTRARY, THE QUOTED
REGULATION IS NEITHER THE FIRST NOR THE ONLY REGULATION REFLECTING THE
EXPECTATION THAT REGISTRATION WAS TO OCCUR, EVEN THOUGH IT WAS "LATE"
REGISTRATION.  EVEN UNDER THE 1917 ACT, THE REGULATIONS "PRESCRIBED BY
THE PRESIDENT UNDER THE AUTHORITY VESTED IN HIM BY THE TERMS OF THE
SELECTIVE SERVICE LAW," U. S. WAR DEPT., SELECTIVE SERVICE REGULATIONS,
P. I (2D ED. 1918), PROVIDED FOR REGISTRATION "OTHER THAN ON
REGISTRATION DAY . . . IRRESPECTIVE OF THE DATE ON WHICH (THE
APPLICANT) WAS REQUIRED TO REGISTER."  ID., SEC. 54; SEE U. S. WAR
DEPT., SELECTIVE SERVICE REGULATIONS SEC. 54 (1917) ("LOCAL BOARDS WILL
ACCOMPLISH THE REGISTRATION OF PERSONS SUBJECT TO REGISTRATION WHO, FOR
ANY REASON, HAVE NOT BEEN REGISTERED ON OR SINCE (REGISTRATION DAY)")
(EMPHASIS ADDED).  SIMILARLY, UNDER THE 1940 ACT, PROCEDURES WERE
DESCRIBED FOR REGISTERING "(ALL PERSONS WHO PRESENT THEMSELVES FOR
REGISTRATION, INCLUDING PERSONS WHO SHOULD HAVE REGISTERED ON A
PREVIOUS REGISTRATION DAY . . . . "  32 CFR 613.11(B) (CUM.SUPP.  1944)
(EMPHASIS ADDED).  AND THE CURRENT REGULATIONS PROVIDE THAT "(THE
DIRECTOR OF SELECTIVE SERVICE SHALL ALSO ARRANGE FOR AND SUPERVISE THE
REGISTRATION OF PERSONS WHO PRESENT THEMSELVES FOR REGISTRATION AT
TIMES OTHER THAN ON THE DAY OR DAYS FIXED FOR ANY REGISTRATION."  32
CFR 1612.1 

IT IS INCONGRUOUS, TO SAY THE LEAST, TO ADMIT THAT LOCAL BOARDS HAVE
A DUTY AND RESPONSIBILITY TO REGISTER LATE APPLICANTS, SEE ALSO 32 CFR
1611.6, BUT THAT SUCH APPLICANTS HAVE NO CORRESPONDING DUTY TO
COOPERATE WITH THE BOARD.  RPESUMABLY UNDER THE MAJORITY'S VIEW, AN
UNREGISTERED MALE, DISCOVERED BY THE LOCAL BOARD AFTER THE TIME FOR HIS
INITIAL REGISTRATION HAD PASSED, COULD NOT BE PUNISHED IF HE "REFUSES
TO COOPERATE OR IS INCLINED TO EVADE, REFUSES TO ANSWER, OR ANSWERS
FALSELY . . . . " SEE 32 CFR 1613.16 (PROVISION FOR DEALING WITH
"RECALCITRANTS"). 

/2/  THE MAJORITY SEEMS CONCERNED TO DISTINGUISH THE "LIMITATIONS
QUESTION," ANTE, AT 120, FROM THE QUESTION OF WHETHER THE DUTY IN THIS
CASE IS CONTINUING, ANTE, AT 121 N. 17.  BUT THE COURT CANNOT HAVE IT
BOTH WAYS.  IF THE DUTY CONTINUES, AS THE REGULATION PRESCRIBES, THE
LIMITATIONS QUESTION HAS BEEN SETTLED:  THE DEFINITION OF THE "OFFENSE"
WAS NOT YET EXHAUSTED WHEN THIS INDICTMENT WAS BROUGHT.  UNITED STATES
V. CORES, 356 U.S. 405, 409 (1958); UNITED STATES V. KISSEL, 218 U.S.
601, 607 (1910).  IF, ON THE OTHER HAND, THE STATUTE HAS RUN, THEN THE
"CONTINUING-DUTY REGULATION MUST BE INVALID.  WHILE I CAN SYMPATHIZE
WITH THE COURT'S DISCOMFORT OVER THE POSITION IT IS THUS FORCED TO
ASSUME, I VIEW THAT UNEASE AS SIMPLY AN ADDITIONAL INDICATION THAT THE
REGULATIONS INVOLVED IN THIS CASE ARE FULLY WITHIN THE SCOPE OF THE
POWERS GIVEN THE PRESIDENT UNDER THE ACT.     /3/  THE FIRST
REGISTRATION IS DESCRIBED IN U. S. SELECTIVE SERVICE SYSTEM,
REGISTRATION AND SELECTIVE SERVICE 10-11 (1946): "THE BASIC IDEA WAS TO
FLLOW THE GENERAL ORGANIZATION AND THE ADMINISTRATIVE UNITS OF THE
ELECTION MACHINERY.  THE GOVERNORS IN THE STATES, THE COUNTY CLERKS, OR
OTHER DESIGNATED PERSONS IN THE COUNTY AND IN REGISTRATION PRECINCTS
WERE SELECTED OR APPOINTED REGISTRARS.  THE ORDINARY PLACE OF
REGISTRATION WAS THE ORDINARY PLACE FOR VOTING.  THUS THE NORMAL
PROCESSES OF GOVERNMENT WERE UTILIZED FOR THIS EXTRAORDINARY
ACTIVITY."  ALTHOUGH IT APPEAS THAT LATE REGISTRATION BY LOCAL BOARDS
AFTER REGISTRATION DAY WAS AUTHORIZED BY THE PRESIDENT, SEE N. 1,
SUPRA, UNTIL WORLD WAR II AND THE 1940 ACT, THE LOCAL BOARDS'"PRIMARY
FUNCTIONS (WERE) NOT REGISTRATION BUT CLASSIFICATION AND INDUCTION." 
ID., AT 23.  ONCE REGISTRATION DAY HAD PASSED AND THE EMERGENCY
MACHINERY HAD BEEN DISMANTLED, SPECIAL PROCEDURES WERE REQUIRED FOR
ACCOMPLISHING LATE REGISTRATION, SEE U. S. WAR DEPT., SELECTIVE SERVICE
REGULATIONS SEC. 54(B) (2D ED. 1918), AND "LOCAL BOARDS HAD DIFFICULTY
WITH THE PROPER ENTRY OR HANDLING OF REGISTRATIONS WHICH, TOO OFTEN FOR
INSUFFICIENT REASON, WERE RECEIVED LATE."  U. S. SLECTIVE SERVICE
SYSTEM, SUPRA, AT 91.  SIGNIFICANTLY, DURING SUBSEQUENT REGISTRATION
DAYS UNDER THE 1917 ACT, WHEN THE BOARDS ONCE AGAIN HAD THE HELP OF
SPECIAL MACHINERY, TENS OF THOUSANDS OF TARDY REGISTRATIONS WERE
EFFECTED.  ID., AT 15.  BY 1941, THE BOARDS WERE EQUIPPED TO HANLE LATE
REGISTRATIONS AS A MATTER OF COURSE, RESULTING IN THE ISSURANCE OF THE
"CONTINUING-DUTY" REGULATION.  SEE ID., AT 42, 91-92. 

/4/  SEE, FOR EXAMPLE, IN ADDITION TO THE "CONTINUING-DUTY"
REGULATION, THE FOLLOWING REGULATION DESIGNATING THE "PLACE AND TIME OF
REGISTRATION": 

"ANY PERSON REQUIRED TO BE REGISTERED MAY PRESENT HIMSELF FOR AND
SUBMIT TO REGISTRATION AT ANY DESIGNATED PLACE OF REGISTRATION OR AT
THE OFFICE OF ANY LOCAL BOARD DURING THE HOURS FOR REGISTRATION
SPECIFIED IN THE PRESIDENTIAL PROCLAMATION OR DURING THE USUAL BUSINESS
HOURS."  32 CFR 1613.1(A) (EMPHASIS ADDED). 

/5/  HEARINGS ON S. 4164 BEFORE THE SENATE COMMITTEE ON MILITARY
AFFAIRS, 76TH CONG., 3D SESS., 385 (1940).  SEE ALSO THE EXCHANGE
BETWEEN SENATOR REYNOLDS-- BY THEN CHAIRMAN OF THE COMMITTEE-- AND
GENERAL HERSHEY DURING HEARINGS A YEAR LATER ON AN AMENDMENT TO THE
1940 ACT, POINT OUT THEAT THE ACT "GIVES A BROAD DISCRETION TO CALL
THESE MEN IN AS THE ARMY SEES FIT . . , (AND TO REGISTER THEM AS THEY
SEE FIT."  HEARINGS ON S. 2126 BEFORE THE SENATE COMMITTEE ON MILITARY
AFFAIRS, 77TH CONG., 1ST SESS., 34 (1941). 

/6/  PROCLAMATION NO. 2799, JULY 20, 1948, 62 STAT. 1531, 13 FED.REG
4173.  SIMILAR LANGUAGE IS CONTAINED IN THE SUPPLEMENTING PROCLAMATION,
NO. 2942, AUGUST 30, 1951, 65 STAT. C36. 

/7/  THIS VIEW OF THE REGISTRATION PROVISIONS, RELATING THEM TO THE
INDUCTION PROVISIONS AS A RESERVOIR TO A PIPELINE, WAS REPEATEDLY
EXMPHASIZED IN THE HEARINGS ON THE 1940 ACT AND AMENDMENTS THERETO. 
SEE, E.G., HEARINGS ON H. R. 10132 BEFORE THE HOUSE COMMITTEE ON
MILITARY AFFAIRS, 76TH CONG 3D SESS., 10-11, 15, 116 (1940); HEARINGS
ON S. 2126 BEFORE THE SENATE COMMITTEE ON MILITARY AFFAIRS, 77TH CONG.,
1ST SESS., 83 (1941) ("IF YOU DO NOT CCORDIANTE REGISTRATION AND
INDUCTION, YOU ARE GOING TO RUN INTO EMBARRASSMENT"); U. S. SELECTIVE
SERVICE SYSTEM, SUPRA, N. 3, AT 1-2 ("(THE OBJECT . . . OF REGISTRATION
IS . . . TO KNOW WHERE AVILABLE MANPOWER IS AND TO BE ABLE TO REACH IT
. . ."). 

/8/  SEE 32 CFR 1617.1, 1623.5 (REGISTRATION AND CLASSIFICAITON
CERTIFICATES MUST BE KEPT IN ONE'S PERSONAL POSSESSION "AT ALL TIMES");
32 CFR 1641.7 (DUTY TO KEEP LOCAL BOARD INFORMED OF CURRENT STATUS); 32
CFR 1641,3 (DUTY "TO KEEP (THE REGISTRANT'S) LOCAL BOARD ADVISED AT ALL
TIMES OF THE ADDRESS WHERE MAIL WILL REACH HIM").  THE LATTER
REGULATION WAS LONG AGO INTERPRETED AS IMPOSING A CONTINUING DUTY TO
ADVISE THE LOCAL BOARD OF A CHANGE OF ADDRESS IN A DECISION THA? 
REJECTED A CLAIM SIMILAR TO PETITIONER'S THAT THE THEN THREE-YEAR
STATUTE OF LIMITATIONS BARRED PROSECUTION, BECAUSE THE ADDRESS WAS
CHANGED MORE THAN THREE YEARS BEFORE THE INDICTMENT WAS BROUGHT. 
UNITED STATES V. GUERTLER, 147 F.2D 796 (C.A. 2D CIR. 1945). 
PRESUMABLY UNDER THE MAJORITY'S THEORY THAT "CONTINUING DUTIES" CAN
ONLY BE CREATED BY EXPRESS PROVISION IN THE STATUTE, THIS DECISION IS
OVERRULED, AND THE CONTINUING DUTY IMPOSED BY THIS REGULATION IS
BRUSHED ASIDE-- ALL IN THE FACE OF A STATUTE THAT CONGRESS KNEW
"WOULDN'T BE WORTH A DIME TO US IN 2 YEARS" IF REGISTRATION INFORMATION
AND LISTS WERE NOT "KEPT UP TO DATE."  HEARINGS ON S. 2126 BEFORE THE
SENATE COMMITTEE ON MILITARY AFFAIRS, 77TH CONG., 1ST SESS., 37 38
(1941). 

/9/  IN THE MILITARY SELECTIVE SERVICE ACT OF 1967, ENACTED JUNE 30,
1967, 81 STAT. 100, CONGRESS ADDED TO SEC. 454(A) A PROVISION THAT
REGISTRANTS WHO FAILED OR REFUSED TO REPORT FOR INDUCTION WERE "TO
REMAIN LIABLE FOR INDUCTION AND WHEN AVAILABLE SHALL BE IMMEDIATELY
INDUCTED."  50 U.S.C. APP. 454 (1964 ED., SUPP. IV).  PETITIONER RELIES
ON THIS PROVISION AS AN INDICATION THAT CONGRESS DID NOT INTEND TO
IMPOSE CONTINUING DUTIES EXCEPT WHERE, AS HERE, IT USED EXPRESS
LANGUAGE TO THAT EFFECT.  THE LEGISLATIVE HISTORY SHOWS JUST THE
OPPOSITE TO BE THE CASE.  CONGRESS ASSUMED THAT, EVEN WITHOUT EXPRESS
LANGUAGE, LIABILITY FOR INDUCTION WOULD CONTINUE UNTIL AGE 26; THE
AMENDMENT WAS PROMPTED SOLELY IN ORDER TO "INSURE THAT A REGISTRANT WHO
PROLONGS LITIGATION TO HIS DRAFT CLASSIFICATION BEYOND AGE 26" (WHEN HE
WOULD "NO LONGER (BE) LIABLE FOR MILITARY SERVICE") "WOULD NONETHELESS
REMAIN LIABLE FOR INDUCTION, REGARDLESS OF AGE . . . . "  H. R. REP.
NO. 267, 90TH CONG., 1ST SESS., 30 (1967).  THERE IS NOT THE SLIGHTEST
SUGGESTION THAT CONGRESS SUSPECTED THAT THE REGISTRATION AND LIABILITY
PROVISIONS OF SECS. 453 AND 454-- INTERRELATED PROVISIONS WHICH MUST
FAIRLY BE READ IN PARI MATERIA-- EVER CREATED ANYTHING OTHER THAN
CONTINUING DUTIES UNTIL THE SPECIFIED 26-YEAR AGE LIMIT WAS REACHED. 

/10/  PETITIONER HAS SUGGESTED THAT IF THE DUTY TO REGISTER IS
CONTINUING, THERE IS NO LOGICAL STOPPING PLACE FOR BOUNDING THE DUTY,
SO THAT "A PERSON SEVENTY YEARS OLD CAN BE PROSECUTED FOR HAVING FAILED
TO REGISTER FIFTY-TWO YEARS BEFORE AT THE AGE OF EIGHTEEN."  BRIEF FOR
PETITIONER 17.  BUT THE PARADED HORRIBLE OVEROOKS THE FACT THAT THE
SAME PROVISIONS THAT CREATE THE DUTY, ALSO INDICATE THAT THE DUTY ENDS
AT AGE 26-- THE AGE BEYOND WHICH NO ONE WAS EVER REQUIRED TO REGISTER
UNDER THIS ACT AND THIS PROCLAMATION, AND BEYOND WHICH NO ONE WOULD
NORMALLY HAVE BEEN LIABLE FOR INDUCTION.  SEE NN. 6, 8 SUPRA; S. REP.
NO. 1268, 80TH CONG., 2D SESS., 6 (1948) ("(REGISTRATION IS NOT
REQUIRED OF PERSONS WHO HAVE REACHED THE AGE OF 26"). 

/11/  SEE STATE V. THANG, 188 MINN. 224, 246, N.W. 891 (1933). 

/12/  SEE GRUNEWALD V. UNITED STATES, 353 U.S. 391 (1957); UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 253 (1940); UNITED
STATES V. KISSEL, 218 U.S. 601 (1910). 

/13/  SEE COX V. STATE, 117 ALA. 103, 23 SO. 806 (1898); COMPARE
PEOPLE V. BRADY, 257 APP.DIV.  1000, 13 N.Y.S. 2D 789 (1939), WITH
COMMONWEALTH V. ROSS, 248 MASS. 15, 142 N.E. 791 (1924). 

/14/  E.G., STATE V. DRY FORK R. CO., 50 W.VA. 235, 40 S.E. 447
(1901). 

/15/  RICHARDSON V. STATE, 30 DEL. (7 BOYCE) 534, 109 A. 124 (CT.
GEN. SESS. 1920); TOWNS V. STATE, 24 GA.APP.  265, 100 S.E. 575
(1919). 

/16/  SEE HANF V. UNITED STATES, 235 F.2D 710 (C.A. 8TH CIR.), CERT.
DENIED, 352 U.S. 880 (1956). 

/17/  UNITED STATES V. FRANKLIN, 188 F.2D 182 (C.A. 7TH CIR. 1951). 

/18/  UNITED STATES V. GUERTLER, 147 F.2D 796 (C.A. 2D CIR. 1945);
SEE N. 8, SUPRA. 

/19/  SEE FOGEL V. UNITED STATES, 162 F.2D 54 (C.A. 5TH CIR.), CERT.
DENIED, 332 U.S. 791 (1947); GARA V. UNITED STATES, 178 F.2D 38, 40
(C.A. 6TH CIR. 1949), AFF'D BY AN EQUALLY DIVIDED COURT, 340 U.S. 857
(1950); MCGREGOR V. UNITED STATES, 206 F.2D 583 (C.A. 4TH CIR. 1953). 
BUT CF. UNITED STATES V. SALBERG, 287 F. 208 (D.C.N.D. OHIO 1923)
(HOLDING THE DUTY UNDER THE 1917 ACT NOT TO BE CONTINUING). 

/20/  SIMILARLY, THE REQUIREMENT THAT CRIMINAL STATUTES BE STRICTLY
CONSTRUED IN DETERMINING THE SUBSTANTIVE OFFENSE IN ORDER TO PREVENT
PROBLEMS OF FAIR WARNING, CF. UNITED STATES V. UNIVERSAL CORP., 344
U.S. 218 (HOLDING THAT DEFENDANT'S ACTS CONSTITUTED A CONTINUING COURSE
OF CONDUCT, SUBJECT ONLY TO ONE PROSECUTION), DOES NOT LEAD TO THE
MAJORITY'S PER SE RULE IN DECIDING WHAT TYPE OF OFFENSE IS INVOLVED FOR
PURPOSES OF THE STATUTE OF LIMITATIONS.  GIVEN THE EXPLICIT PROVISIONS
OF SEC. 453, THE "CONTINUING-DUTY" REGULATION, AND THE CONSISTENT
ADMINISTRATIVE INTERPRETATION OF THE ACT, THERE CAN BE NO SUGGESTION
THAT PETITIONER DID NOT HAVE FAIR WARNING THAT HE WAS REQUIRED TO
REGISTER, OR THAT PETITIONER WAS UNFAIRLY LED INTO THINKING THAT REPOSE
WOULD BE HIS WHEN HE REACHED 23. 

MURRAY I. GURFEIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS JACOB W. HELLER. 

FRANCIS X. BEYTAGH, JR., ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL WILSON, JEROME M. FEIT, AND EDWARD FENIG. 
..END :

















PIKE V. BRUCE CHURCH, INC., 397 U.S. 137 


       PIKE V. BRUCE CHURCH, INC.

        APPEAL FROM THE UNITED STATE DISTRICT COURT FOR THE
DISTRICT

OF ARIZONA

        NO. 301.  ARGUED JANUARY 3, 1970-- DECIDED MARCH 2, 1970 


APPELLEE COMPANY GROWS CANTALOUPES OF SUPERIOR QUALITY IN PARKER,
ARIZONA.  SINCE THE COMPANY LACKS PACKING SHEDS IN PARKER, IT
TRANSPORTS THE CANTALOUPES TO ITS NEARBY FACILITIES IN CALIFORNIA,
WHERE THEY ARE SORTED, INSPECTED, PACKED, AND SHIPPED IN CONTAINERS
THAT BEAR THE NAME OF THE CALIFORNIA PACKER.  APPELLANT OFFICIAL,
ACTING UNDER THE ARIZONA FRUIT AND VEGETABLE STANDARDIZATION ACT, WHICH
IS DESIGNED TO PREVENT DECEPTIVE PACKAGING, ENTERED AN ORDER
PROHIBITING THE COMPANY FROM SHIPPING ITS CANTALOUPES OUTSIDE THE STATE
UNLESS THEY WERE PACKED IN CONTAINERS IN A MANNER APPROVED BY
APPELLANT.  APPELLANT CONTENDS THAT HIS ORDER IS NECESSARY TO ENSURE
THAT THE CANTALOUPES BE IDENTIFIED AS OF ARIZONA ORIGIN.  APPELLEE
BROUGHT THIS SUIT FOR INJUNCTIVE RELIED CHALLENGING THE
CONSTITUTIONALITY OF THE ORDER, WHICH WOULD HAVE THE EFFECT OF
REQUIRING APPELLEE TO BUILD PACKING FACILITIES IN OR NEAR PARKER AT A
COST OF ABOUT $200,000.  A THREE-JUDGE DISTRICT COURT ISSUED AN
INJUNCTION, HOLDING THAT THE ORDER CONSTITUTED AN UNLAWFUL BURDEN ON
INTERESTATE COMMERCE.  HELD: 

1.  APPELLANT'S ORDER BURDENS INTERSTATE COMMERCE SINCE THE
CANTALOUPES WERE DESTINED TO BE SHIPPED FROM ARIZONA TO AN
ASCERTAINABLE LOCATION IN CALIFORNIA IMMEDIATELY AFTER HARVEST, AND
APPLICATION OF THE CHALLENGED STATUTE WOULD REQUIRE AN OPERATION NOW
CONDUCTED OUTSIDE THE STATE TO BE PERFORMED WITHIN THE STATE SO IT CAN
BE REGULATED THERE.  PP. 140-142. 

2.  THE BURDEN ON INTERSTATE COMMERCE IMPOSED BY APPELLANT'S ORDER
IS UNCONSTITUTIONAL SINCE ARIZONA'S MINIMAL INTEREST IN IDENTIFYING THE
ORIGIN OF APPELLEE'S CANTALOUPES TO ENHANCE THE REPUTATION OF ARIZONA
PRODUCERS CANNOT JUSTIFY SUBJECTING APPELLEE TO THE SUBSTANTIAL CAPITAL
EXPENDITURE OF BUILDING AND OPERATING IN ARIZONA A PACKING PLANT THAT
IT DOES NOT NEED.  PP. 142-146. 

AFFIRMED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE APPELLEE IS A COMPANY ENGAGED IN EXTENSIVE COMMERCIAL FARMING
OPERATIONS IN ARIZONA AND CALIFORNIA.  THE APPELLANT IS THE OFFICIAL
CHARGED WITH ENFORCING THE ARIZONA FRUIT AND VEGETABLE STANDARDIZATION
ACT.  /1/  A PROVISION OF THE ACT REQUIRES THAT, WITH CERTAIN
EXCEPTIONS, ALL CANTALOUPES GROWN IN ARIZONA AND OFFERED FOR SALE MUST
"BE PACKED IN REGULAR COMPACT ARRANGEMENT IN CLOSED STANDARD CONTAINERS
APPROVED BY THE SUPERVISOR . . . . "  /2/  INVOKING HIS AUTHORITY UNDER
THAT PROVISION, THE APPELLANT ISSUED AN ORDER PROHIBITING THE APPELLEE
COMPANY FROM TRANSPORTING UNCRATED CANTALOUPES FROM ITS PARKER,
ARIZONA, RANCH TO NEARBY BLYTHE, CALIFORNIA, FOR PACKING AND
PROCESSING.  THE COMPANY THEN BROUGHT THIS ACTION IN A FEDERAL COURT TO
ENJOIN THE ORDER AS UNCONSTITUTIONAL.  A THREE-JUDGE COURT WAS
CONVENED.  28 U.S.C. 2281, 2284.  AFTER FIRST GRANTING TEMPORARY
RELIEF, THE COURT ISSUED A PERMANENT INJUNCTION UPON THE GROUND THAT
THE CHALLENGED ORDER CONSTITUTED AN UNLAWFUL BURDEN UPON INTERSTATE
COMMERCE.  THIS APPEAL FOLLOWED.  28 U.S.C. 1253.  396 U.S. 812. 

THE FACTS ARE NOT IN DISPUTE, HAVING BEEN STIPULATED BY THE
PARTIES.  THE APPELLEE COMPANY HAS FOR MANY YEARS BEEN ENGAGED IN THE
BUSINESS OF GROWING, HARVESTING, PROCESSING, AND PACKING FRUITS AND
VEGETABLES AT NUMEROUS LOCATIONS IN ARIZONA AND CALIFORNIA FOR
INTERSTATE SHIPMENT TO MARKETS THROUGHOUT THE NATION.  ONE OF THE
COMPANY'S NEWEST OPERATIONS IS AT PARKER, ARIZONA, WHERE, PURSUANT TO A
1964 LEASE WITH THE SECRETARY OF THE INTERIOR, THE COLORADO RIVER
INDIAN AGENCY, AND THE COLORADO RIVER INDIAN TRIBES, IT UNDERTOOK TO
DEVELOP APPROXIMATELY 6,400 ACRES OF UNCULTIVATED, ARID LAND FOR
AGRICULTURAL USE.  THE COMPANY HAS SPENT MORE THAN $3,000,000 IN
CLEARNING, LEVELING, IRRIGATING, AND OTHERWISE DEVELOPING THIS LAND. 
THE COMPANY BEGAN GROWING CANTALOUPES ON PART OF THE LAND IN 1966, AND
HAS HARVESTED A LARGE CANTALOUPE CROP THERE IN EACH SUBSEQUENT YEAR. 
THE CANTALOUPES ARE CONSIDERED TO BE OF HIGHER QUALITY THAN THOSE GROWN
IN OTHER AREAS OF THE STATE.  BECAUSE THEY ARE HIGHLY PERISHABLE,
CANTALOUPES MUST UPON MATURITY BE IMMEDIATELY HARVESTED, PROCESSED,
PACKED, AND SHIPPED IN ORDER TO PREVENT SPOILAGE.  THE PROCESSING AND
PACKING OPERATIONS CAN BE PERFORMED ONLY IN PACKING SHEDS.  BECAUSE THE
COMPANY HAD NO SUCH FACILITIES AT PARKER, IT TRANSPORTED ITS 1966
PARKER CANTALOUPE HARVEST IN BULK LOADS TO BLYTHE, CALIFORNIA, 31 MILES
AWAY, WHERE IT OPERATED CENTRALIZED AND EFFICIENT PACKING SHED
FACILITIES.  THERE THE MELONS WERE SORTED, INSPECTED, PACKED, AND
SHIPPED.  IN 1967 THE COMPANY AGAIN SENT ITS PARKER CANTALOUPE CROP TO
BLYTHE FOR SORTING, PACKING, AND SHIPPING.  IN 1968, HOWEVER, THE
APPELLANT ENTERED THE ORDER HERE IN ISSUE, PROHIBITING THE COMPANY FROM
SHIPPING ITS CANTALOUPES OUT OF THE STATE UNLESS THEY WERE PACKED IN
CONTAINERS IN A MANNER AND OF A KIND APPROVED BY THE APPELLANT. 
BECAUSE CANTALOUPS IN THE QUANTITY INVOLVED CAN BE SO PACKED ONLY IN
PACKING SHEDS, AND BECAUSE NO SUCH FACILITIES WERE AVAILABLE TO THE
COMPANY AT PARKER OR ANYWHERE ELSE NEARBY IN ARIZONA, THE COMPANY FACED
IMMINENT LOSS OF ITS ANTICIPATED 1968 CANTALOUPE CROP IN THE GROSS
AMOUNT OF $700,000.  IT WAS TO PREVENT THIS UNRECOVERABLE LOSS THAT THE
DISTRICT COURT GRANTED PRELIMINARY RELIEF.  /3/ 

AFTER DISCOVERY PROCEEDINGS, AN AGREED STATEMENT OF FACTS WAS FILED
WITH THE COURT.  IT CONTAINED A STIPULATION THAT THE PRACTICAL EFFECT
OF THE APPELLANT'S ORDER WOULD BE TO COMPEL THE COMPANY TO BUILD
PACKING FACILITIES IN OR NEAR PARKER, ARIZONA, THAT WOULD TAKE MANY
MONTHS TO CONSTRUCT AND WOULD COST APPROXIMATELY $200,000.  AFTER
BRIEFING AND ARGUMENT, THE COURT ISSUED A PERMANENT INJUNCTION, FINDING
THAT "THE ORDER COMPLAINED OF CONSTITUTES AN UNLAWFUL BURDEN UPON
INTERSTATE COMMERCE."  /4/ 

THE APPELLANT'S THRESHOLD CONTENTION HERE IS THAT EVEN THOUGH THE
CHALLENGED ORDER EXPRESSLY FORBIDS THE INTERSTATE BULK SHIPMENT OF THE
COMPANY'S CANTALOUPES, IT IMPOSES NO BURDEN UPON INTERSTATE COMMERCE. 
IF THE ARIZONA ACT IS COMPLIED WITH, HE ARGUES, ALL THAT WILL BE
REGULATED WILL BE THE INTRASTATE PACKING OF GOODS DESTINED FOR
INTERSTATE COMMERCE.  ARTICLES BEING MADE READY FOR INTERSTATE MOVEMENT
ARE NOT NECESSARILY YET IN INTERSTATE COMMERCE, WHICH, HE SAYS, BEGINS
ONLY WHEN THE ARTICLES ARE DELIVERED TO THE INTERSTATE SHIPPER.  IN
MAKING THIS ARGUMENT, THE APPELLANT RELIES ON THIS COURT'S DECISIONS IN
FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S. 17, AND CHASSANIOL V. CITY OF
GREENWOOD, 291 U.S. 584.  BOTH OF THOSE CASES INVOLVED TAXES IMPOSED BY
MISSISSIPPI ON A COTTON WAREHOUSE AND COMPRESS BUSINESS LOCATED WITHIN
THAT STATE.  THE TAXES WERE NONDISCRIMINATORY AND WERE LEVIED BOTH ON
THE WAREHOUSED COTTON ITSELF AND ON CERTAIN PROCESSES NECESSARY TO
READY IT FOR SUBSEQUENT RESALE.  THE TAXES WERE CHALLENGED AS UNLAWFUL
BURDENS ON INTERSTATE COMMERCE, SINCE MOST OF THE TAXED COTTON WAS
ULTIMATELY TO BE SHIPPED TO OUT-OF-STATE BUYERS.  THE COURT UPHELD THE
CONSTITUTIONALITY OF THE MISSISSIPPI TAXES.  IT IS NOT ENTIRELY CLEAR
FROM THE COURT'S OPINIONS WHETHER THEIR RATIONALE WAS THAT THE TAXES
WERE IMPOSED BEFORE INTERESTATE COMMERCE HAD BEGUN, OR THAT THE BURDEN
UPON COMMERCE WAS AT THE MOST INDIRECT AND REMOTE. 

BUT IN ANY EVENT, THE DECISIONS DO NOT SUPPORT THE ARGUMENT THAT THE
ORDER IN THE PRESENT CASE DOES NOT AFFECT INTERSTATE COMMERCE.  IN THE
FIRST PLACE, THOSE CASES INVOLVED COTTON THAT HAD COME TO REST IN
MISSISSIPPI, AND "(BEFORE SHIPPING ORDERS (WERE) GIVEN, IT (HAD) NO
ASCERTAINABLE DESTINATION WITHOUT THE STATE."  291 U.S., AT 21.  HERE,
BY CONTRAST, THE PERISHABLE CANTALOUPES WERE DESTINED TO BE SHIPPED TO
AN ASCERTAINABLE LOCATION IN CALIFORNIA IMMEDIATELY UPON HARVEST.  EVEN
MORE TO THE POINT, THE TAXES IN FEDERAL COMPRESS AND CHASSANIOL WERE
IMPOSED ON GOODS AND OPERATIONS WITHIN THE STATE, WHEREAS THE
APPLICATION OF THE STATUTE AT ISSUE HERE WOULD REQUIRE THAT AN
OPERATION NOW CARRIED ON OUTSIDE THE STATE MUST BE PERFORMED INSTEAD
WITHIN THE STATE SO THAT IT CAN BE REGULATED THERE.  IF THE APPELLANT'S
THEORY WERE CORRECT, THEN STATUTES EXPRESSLY REQUIRING THAT CERTAIN
KINDS OF PROCESSING BE DONE IN THE HOME STATE BEFORE SHIPMENT TO A
SISTER STATE WOULD BE IMMUNE FROM CONSTITUTIONAL CHALLENGE.  YET SUCH
STATUTES HAVE BEEN CONSISTENTLY INVALIDATED BY THIS COURT UNDER THE
COMMERCE CLAUSE.  FOSTER-FOUNTAIN PACKING CO. V. HAYDEL, 278 U.S. 1;
JOHNSON V. HAYDEL, 278 U.S. 16; TOOMER V. WITSELL, 334 U.S. 385.  SEE
ALSO LEMKE V. FARMERS GRAIN CO., 258 U.S. 50; SHAFER V. FARMERS GRAIN
CO., 268 U.S. 189.  THUS IT IS CLEAR THAT THE APPELLANT'S ORDER DOES
AFFECT AND BURDEN INTERSTATE COMMERCE, AND THE QUESTION THEN BECOMES
WHETHER IT DOES SO UNCONSTITUTIONALLY. 

ALTHOUGH THE CRITERIA FOR DETERMINING THE VALIDITY OF STATE STATUTES
AFFECTING INTERSTATE COMMERCE HAVE BEEN VARIOUSLY STATED, THE GENERAL
RULE THAT EMERGES CAN BE PHRASED AS FOLLOWS:  WHERE THE STATUTE
REGULATES EVENHANDEDLY TO EFFECTUATE A LEGITIMATE LOCAL PUBLIC
INTEREST, AND ITS EFFECTS ON INTERSTATE COMMERCE ARE ONLY INCIDENTAL,
IT WILL BE UPHELD UNLESS THE BURDEN IMPOSED ON SUCH COMMERCE IS CLEARLY
EXCESSIVE IN RELATION TO THE PUTATIVE LOCAL BENEFITS.  HURON CEMENT CO.
V. DETROIT, 362 U.S. 440, 443.  IF A LEGITIMATE LOCAL PURPOSE IS FOUND,
THEN THE QUESTION BECOMES ONE OF DEGREE.  AND THE EXTENT OF THE BURDEN
THAT WILL BE TOLERATED WILL OF COURSE DEPEND ON THE NATURE OF THE LOCAL
INTEREST INVOLVED, AND ON WHETHER IT COULD BE PROMOTED AS WELL WITH A
LESSER IMPACT ON INTERSTATE ACTIVITIES.  OCCASIONALLY THE COURT HAS
CANDIDLY UNDERTAKEN A BALANCING APPROACH IN RESOLVING THESE ISSUES,
SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761, BUT MORE FREQUENTLY IT
HAS SPOKEN IN TERMS OF "DIRECT" AND "INDIRECT" EFFECTS AND BURDENS. 
SEE, E.G., SHAFER V. FARMERS GRAIN CO., SUPRA. 

AT THE CORE OF THE ARIZONA FRUIT AND VEGETABLE STANDARDIZATION ACT
ARE THE REQUIREMENTS THAT FRUITS AND VEGETABLES SHIPPED FROM ARIZONA
MEET CERTAIN STANDARDS OF WHOLESOMENESS AND QUALITY, AND THAT THEY BE
PACKED IN STANDARD CONTAINERS IN SUCH A WAY THAT THE OUTER LAYER OR
EXPOSED PORTION OF THE PACK DOES NOT "MATERIALLY MISREPRESENT" THE
QUALITY OF THE LOT AS A WHOLE.  /5/  THE IMPETUS FOR THE ACT WAS THE
FEAR THAT SOME GROWERS WERE SHIPPING INFERIOR OR DECEPTIVELY PACKAGED
PRODUCE, WITH THE RESULT THAT THE REPUTATION OF ARIZONA GROWERS
GENERALLY WAS BEING TARNISHED AND THEIR FINANCIAL RETURN CONCOMITANTLY
REDUCED.  IT WAS TO PREVENT THIS THAT THE ACT WAS PASSED IN 1929.  THE
STATE HAS STIPULATED THAT ITS PRIMARY PURPOSE IS TO PROMOTE AND
PRESERVE THE REPUTATION OF ARIZONA GROWERS BY PROHIBITING DECPTIVE
PACKAGING. 

WE ARE NOT, THE, DEALING HERE WITH "STATE LEGISLATION IN THE FIELD
OF SAFETY WHERE THE PROPRIETY OF LOCAL REGULATION HAS LONG BEEN
RECOGNIZED,"  /6/  OR WITH AN ACT DESIGNED TO PROTECT CONSUMERS IN
ARIZONA FROM CONTAMINATED OR UNFIT GOODS.  ITS PURPOSE AND DESIGN ARE
SIMPLY TO PROTECT AND ENHANCE THE REPUTATION OF GROWERS WITHIN THE
STATE.  THESE ARE SURELY LEGITIMATE STATE INTERESTS.  SLIGH V.
KIRKWOOD, 237 U.S. 52, 61.  WE HAVE UPHELD A STATE'S POWER TO REQUIRE
THAT PRODUCE PACKAGED IN THE STATE BE PACKAGED IN A PARTICULAR KIND OF
RECEPTACLE, PACIFIC STATES BOX & BASKET CO. V. WHITE, 296 U.S. 176. 
AND WE HAVE RECOGNIZED THE LEGITIMATE INTEREST OF A STATE IN MAXIMIZING
THE FINANCIAL RETURN TO AN INDUSTRY WITHIN IT.  PARKER V. BROWN, 317
U.S. 341.  THEREFORE, AS APPLIED TO ARIZONA GROWERS WHO PACKAGE THEIR
PRODUCE IN ARIZONA, WE MAY ASSUME THE CONSTITUTIONAL VALIDITY OF THE
ACT.  WE MAY FURTHER ASSUME THAT ARIZONA HAS FULL CONSTITUTIONAL POWER
TO FORBID THE MISLEADING USE OF ITS NAME ON PRODUCE THAT WAS GROWN OR
PACKED ELSEWHERE.  AND, TO THE EXTENT THE ACT FORBIDS THE SHIPMENT OF
CONTAMINATED OR UNFIT PRODUCE, IT CLEARLY RESTS ON SURE FOOTING.  FOR,
AS THE COURT HAS SAID, SUCH PRODUCE IS "NOT THE LEGITIMATE SUBJECT OF
TRADE OR COMMERCE, NOR WITHIN THE PROTECTION OF THE COMMERCE CLAUSE OF
THE CONSTITUTION."  SLIGH V. KIRKWOOD, SUPRA, AT 60; BALDWIN V. SEELIG,
294 U.S. 511. 

BUT APPLICATION OF THE ACT THROUGH THE APPELLANT'S ORDER TO THE
APPELLEE COMPANY HAS A FAR DIFFERENT IMPACT, AND QUITE A DIFFERENT
PURPOSE.  THE CANTALOUPES GROWN BY THE COMPANY AT PARKER ARE OF
EXCEPTIONALLY HIGH QUALITY.  THE COMPANY DOES NOT PACK THEM IN ARIZONA
AND CANNOT DO SO WITHOUT MAKING A CAPITAL EXPENDITURE OF APPROXIMATELY
$200,000.  IT TRANSPORTS THEM IN BULK TO NEARBY BLYTHE, CALIFORNIA,
WHERE THEY ARE SORTED, INSPECTED, PACKED, AND SHIPPED IN CONTAINERS
THAT DO NOT IDENTIFY THEM AS ARIZONA CANTALOUPES, BUT BEAR THE NAME OF
THEIR CALIFORNIA PACKER.  /7/  THE APPELLANT'S ORDER WOULD FORBID THE
COMPANY TO PACK ITS CANTALOUPES OUTSIDE ARIZONA, NOT FOR THE PURPOSE OF
KEEPING THE REPUTATION OF ITS GROWERS UNSULLIED, BUT TO ENHANCE THEIR
REPUTATION THROUGH THE REFLECTED GOOD WILL OF THE COMPANY'S SUPERIOR
PRODUCE.  THE APPELLANT, IN OTHER WORDS, IS NOT COMPLAINING BECAUSE THE
COMPANY IS PUTTING THE GOOD NAME OF ARIZONA ON AN INFERIOR OR
DECEPTIVELY PACKAGED PRODUCT THAT IS SUPERIOR AND WELL PACKAGED.  AS
THE APPELLANT'S BRIEF PUTS THE MATTER, "IT IS WITHIN ARIZONA'S
LEGITIMATE INTEREST TO REQUIRE THAT INTERSTATE CANTALOUPE PURCHASERS BE
INFORMED THAT THIS HIGH QUALITY PARKER FRUIT WAS GROWN IN ARIZONA." 
/8/ 

ALTHOUGH IT IS NOT EASY TO SEE WHY THE OTHER GROWERS OF ARIZONA ARE
ENTITLED TO BENEFIT AT THE COMPANY'S EXPENSE FROM THE FACT THAT IT
PRODUCES SUPERIOR CROPS, WE MAY ASSUME THAT THE ASSERTED STATE INTEREST
IS A LEGITIMATE ONE.  BUT THE STATE'S TENUOUS INTEREST IN HAVING THE
COMPANY'S CANTALOUPES IDENTIFIED AS ORIGINATING IN ARIZONA CANNOT
CONSTITUTIONALLY JUSTIFY THE REQUIREMENT THAT THE COMPANY BUILD AND
OPERATE AN UNNEEDED $200,000 PACKING PLANT IN THE STATE.  THE NATURE OF
THAT BURDEN IS, CONSTITUTIONALLY, MORE SIGNIFICANT THAN ITS EXTENT. 
FOR THE COURT HAS VIEWED WITH PARTICULAR SUSPICION STATE STATUTES
REQUIRING BUSINESS OPERATIONS TO BE PERFORMED IN THE HOME STATE THAT
COULD MORE EFFICIENTLY BE PERFORMED ELSEWHERE.  EVEN WHERE THE STATE IS
PURSUING A CLEARLY LEGITIMATE LOCAL INTEREST, THIS PARTICULAR BURDEN ON
COMMERCE HAS BEEN DECLARED TO BE VIRTUALLY PER SE ILLEGAL.  FOSTER
FOUNTAIN PACKING CO. V. HAYDEL, 278 U.S. 1; JOHNSON V. HAYDEL, 278 U.S.
16; TOOMER V. WITSELL, 334 U.S. 385. 

THE APPELLANT ARGUES THAT THE ABOVE CASES ARE DIFFERENT BECAUSE THEY
INVOLVED STATUTES WHOSE EXPRESS OR CONCEALED PURPOSE WAS TO PRESERVE OR
SECURE EMPLOYMENT FOR THE HOME STATE, WHILE HERE THE STATUTE IS A
REGULATORY ONE AND THERE IS NO HINT OF SUCH A PURPOSE.  BUT IN TOOMER
V. WITSELL, SUPRA, THE COURT INDICATED THAT SUCH A BURDEN UPON
INTERSTATE COMMERCE IS UNCONSTITUTIONAL EVEN IN THE ABSENCE OF SUCH A
PURPOSE.  IN TOOMER THE COURT HELD INVALID A SOUTH CAROLINA STATUTE
REQUIRING THAT OWNERS OF SHRIMP BOATS LICENSED BY THE STATE TO FISH IN
THE MARITIME BELT OFF SOUTH CAROLINA MUST UNLOAD AND PACK THEIR CATCH
IN THAT STATE BEFORE "SHIPPING OR TRANSPORTING IT TO ANOTHER 'STATE." 
WHAT WE SAID THERE APPLIES TO THIS CASE AS WELL: 

     "THERE WAS ALSO UNCONTRADICTED EVIDENCE THAT APPELLANTS' COSTS

 WOULD BE MATERIALLY INCREASED BY THE NECESSITY OF HAVING THEIR

  SHRIMP UNLOADED AND PACKED IN SOUTH CAROLINA PORTS RATHER THAN AT

  THEIR HOME BASES IN GEORGIA WHERE THEY MAINTAIN THEIR OWN

  DOCKING, WAREHOUSING, REFRIGERATION AND PACKING FACILITIES.  IN

  ADDITION, AN INEVITABLE CONCOMITANT OF A STATUTE REQUIRING THAT

  WORK BE DONE IN SOUTH CAROLINA, EVEN THOUGH THAT BE ECONOMICALLY

  DISADVANTAGEOUS TO THE FISHERMEN, IS TO DIVERT TO SOUTH CAROLINA

  EMPLOYMENT AND BUSINESS WHICH MIGHT OTHERWISE GO TO GEORGIA; THE

NECESSARY TENDENCY OF THE STATUTE IS TO IMPOSE AN ARTIFICIAL

  RIGIDITY ON THE ECONOMIC PATTERN OF THE INDUSTRY."  334 U.S. AT

  403-404.  /9/ 

WHILE THE ORDER ISSUED UNDER THE ARIZONA STATUTE DOES NOT IMPOSE
SUCH RIGIDITY ON AN ENTIRE INDUSTRY, IT DOES IMPOSE JUST SUCH A
STRAITJACKET ON THE APPELLEE COMPANY WITH RESPECT TO THE ALLOCATION OF
ITS INTERSTATE RESOURCES.  SUCH AN INCIDENTAL CONSEQUENCE OF A
REGULATORY SCHEME COULD PERHAPS BE TOLERATED IF A MORE COMPELLING STATE
INTEREST WERE INVOLVED.  BUT HERE THE STATE'S INTEREST IS MINIMAL AT
BEST-- CERTAINLY LESS SUBSTANTIAL THAN A STATES INTEREST IN SECURING
EMPLOYMENT FOR ITS PEOPLE.  IF THE COMMERCE CLAUSE FORBIDS A STATE TO
REQUIRE WORK TO BE DONE WITHIN ITS JURISDICTION TO PROMOTE LOCAL
EMPLOYMENT, T HENS URELY IT CANNOT PERMIT A STATE TO REQUIRE A PERSON
TO GO INTO A LOCAL PACKING BUSINESS SOLELY FOR THE SAKE OF ENHANCING
THE REPUTATION OF OTHER PRODUCERS WITHIN ITS BORDERS. 

              THE JUDGMENT IS AFFIRMED. 

/1/  ARIZ. REV. STAT. ANN., TIT. 3, C. 3, ART. 4. 

/2/  ARIZ. REV. STAT. ANN. SEC. 3-503C (SUPP. 1969). 

/3/  IN VIEW OF THE EMERGENCY SITUATION PRESENTED, AND THE FACT THAT
ONLY A NARROW AND SPECIFIC APPLICATION OF THE ACT WAS CHALLENGED AS
UNCONSTITUTIONAL, THE COURT WAS FULLY JUSTIFIED IN NOT ABSTAINING FROM
THE EXERCISE OF ITS JURISDICTION PENDING LITIGATION IN THE STATE
COURTS.  COMPARE HOSTETTER V. IDLEWILD LIQUOR CORP., 377 U.S. 324, 329
WITH REETZ V. BOZANICH, ANTE, P. 82. 

/4/  THE OPINION OF THE DISTRICT COURT IS UNREPORTED. 

/5/  ARIZ. REV. STAT. ANN. SECS. 3-481(7) AND (8). 

/6/  SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761, 796 DOUGLAS J.,
DISSENTING). 

/7/  CALIFORNIA AGRIC.  CODE SEC. 45691.  THE CALIFORNIA FRUIT, NUT
AND VEGETABLE STANDARDIZATION ACT, CALIFORNIA AGRIC.  CODE, DIVISION
17, IS VIRTUALLY IDENTICAL TO THE ARIZONA ACT.  EACH STATUTE HAS THE
SAME PRIMARY PURPOSE OF PREVENTING DECEPTIVE PACKS, AND IT IS
STIPULATED THAT THE STANDARD CONTAINERS REQUIRED FOR CANTALOUPES IN THE
TWO STATES ARE EXACTLY THE SAME. 

/8/  APPELLANT'S BRIEF 43. 

/9/  BECAUSE OF THE STATE'S RECOGNIZED COMMON-LAW PROPERTY INTEREST
IN ITS FISH AND WILD GAME, TOOMER PRESENTED AN ESPECIALLY STRONG CASE
FOR STATE CONTROL. 

REX E. LEE ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEFS
WERE GARY K. NELSON, ATTORNEY GENERAL OF ARIZONA, AND THOMAS A. MILLER,
ASSISTANT ATTORNEY GENERAL. 

JACOB ABRAMSON ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLEE, 

GEORGE C. LYON FILED A BRIEF FOR THE WESTERN GROWERS ASSOCIATION AS
AMICUS CURIAE URGING REVERSAL. 
..END :






GILHOOL V. CHAIRMAN, PHILADELPHIA COUNTY BOARD OF ELECTIONS, 397 U.S.
147 A 



       GILHOOL ET AL. V. CHAIRMAN, PHILADELPHIA COUNTY BOARD OF

           ELECTIONS, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

 DISTRICT OF PENNSYLVANIA

        NO. 1069.  DECIDED MARCH 2, 1970 


306 F.SUPP.  1202, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

PAUL BENDER FOR APPELLANTS. 

LEVY ANDERSON FOR CHAIRMAN, PHILADELPHIA COUNTY BOARD OF ELECTIONS,
ET AL., AND EDWARD R. BECKER AND WILLIAM AUSTIN MEEHAN FOR THE
REPUBLICAN CITY COMMITTEE ET AL., APPELLEES. 
..END :
























KOZEROWITZ V. STACK, 397 U.S. 147 


       KOZEROWITZ V. STACK ET AL.

        APPEAL FROM THE SUPREME COURT OF FLORIDA

        NO. 1087.  DECIDED MARCH 2, 1970 


226 SO.2D 682, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

SHALLE STEPHEN FINE FOR APPELLANT. 

CURTIS B. GOFF FOR APPELLEES. 
..END :










LAIKIND V. ATTORNEY GENERAL OF NEW YORK, 397 U.S. 148 


       LAIKIND V. ATTORNEY GENERAL OF NEW YORK

APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 68.  DECIDED MARCH 2, 1970 


22 N.Y.2D 346, 239 N.E.2D 550, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A FINAL JUDGMENT. 

MR JUSTICE DOUGLAS IS OF THE OPINION THAT FURTHER CONSIDERATION OF
THE QUESTION OF JURISDICTION SHOULD BE POSTPONED TO THE HEARING OF THE
CASE ON THE MERITS. 

VICTOR KONOW FOR APPELLANT. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, PRO SE, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND WARREN M. GOIDEL,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :





MADDOX V. FORTSON, 397 U.S. 149 


       MADDOX ET AL. V. FORTSON ET AL.

        APPEAL FROM THE SUPREME COURT OF GEORGIA

        NO. 1181.  DECIDED MARCH 2, 1970 


226 GA. 71, 172 S.E.2D 595, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

TULLY M. BOND, JR., AND T. MALONE SHARPE FOR APPELLANTS. 

ARTHUR K. BOLTON, ATTORNEY GENERAL OF GEORGIA, PRO SE, HAROLD N.
HILL, JR., EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND WILLIAM L. HARPER
AND ROBERT J. CASTELLANI, ASSISTANT ATTORNEYS GENERAL, FOR FORTSON ET
AL.; LAMAR W. SIZEMORE FOR GRAY ET AL., AND WILLIAM C. O'KELLEY AND
EARL J. VAN GERPEN FOR THE REPUBLICAN PARTY OF GEORGIA ET AL.,
APPELLEES. 
..END :





HALL V. BAUM, CHAIRMAN OF STATE DEMOCRATIC EXECUTIVE COMMITTEE OF
TEXAS, 397 U.S. 93 



       HALL V. BAUM, CHAIRMAN OF STATE DEMOCRATIC EXECUTIVE

           COMMITTEE OF TEXAS

        APPEAL FROM THE SUPREME COURT OF TEXAS

        NO. 1218.  DECIDED FEBRUARY 27, 1970 


452 S.W.2D 699, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

WILLIAM H. ALLEN, JOHN VANDERSTAR, JOHN L. HILL, HENRY D. AKIN, JR.,
AND MARK MARTIN FOR APPELLANT. 
..END :








UNITED STATES V. GIFFORD-HILL-AMERICAN, INC., 397 U.S. 93 


       UNITED STATES ET AL. V. GIFFORD-HILL-AMERICAN, INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 515.  DECIDED FEBRUARY 27, 1970 


413 F.2D 1244, VACATED AND REMANDED. 

PER CURIAM. 

UPON CONSIDERATION OF THE SUGGESTION OF MOOTNESS FILED BY THE
SOLICITOR GENERAL, AND UPON AN EXAMINATION OF THE ENTIRE RECORD, THE
JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT IS
VACATED AND THE CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO
DISMISS THE MANDAMUS PROCEEDINGS AS MOOT. 

SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY GENERAL MCLAREN
FOR THE UNITED STATES ET AL.
..END :







SHAFFER V. BRIDGES, 397 U.S. 94 


       SHAFFER V. BRIDGES

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF MISSISSIPPI

        NO. 535, MISC.  DECIDED FEBRUARY 27, 1970 


PER CURIAM. 

THE MOTION OF THE APPELLANT FOR LEAVE TO PROCEED IN FORMA PAUPERIS
IS GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE CASE IS DISMISSED
AS MOOT. 

JAMES ROBERTSON AND LAWRENCE A. ASCHENBRENNER FOR APPELLANT. 

A. F. SUMMER, ATTORNEY GENERAL OF MISSISSIPPI, AND WILL S. WELLS,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :










MATTHEWS V. LITTLE, CITY CLERK OF THE CITY OF ATLANTA, 397 U.S. 94 


       MATTHEWS ET AL. V. LITTLE, CITY CLERK OF THE CITY OF ATLANTA

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA

     NO. 1225, MISC.  DECIDED FEBRUARY 27, 1970 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
MOTION TO DISMISS IS ALSO GRANTED AND THE APPEAL IS DISMISSED AS MOOT. 

FREDERICK S. LE CLERCQ FOR APPELLANTS. 

HENRY L. BOWDEN AND JOHN E. DOUGHERTY FOR APPELLEE. 
..END :








LUJAN V. CALIFORNIA, 397 U.S. 95 


       LUJAN V. CALIFORNIA

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA

        NO. 200, MISC.  DECIDED FEBRUARY 27, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, ALBERT W. HARRIS,
JR., ASSISTANT ATTORNEY GENERAL, AND MICHAEL J. PHELAN, DEPUTY ATTORNEY
GENERAL, FOR APPELLEE. 
..END :










DURHAM V. INDEPENDENCE HOMES, INC., 397 U.S. 95 


       DURHAM ET UX. V. INDEPENDENCE HOMES, INC.

 APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 1062.  DECIDED FEBRUARY 27, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED
FOR WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

THOMAS B. MCNEILL FOR APPELLANTS. 

BURTON Y. WEITZENFELD AND JOHN F. MCCLURE FOR APPELLEE. 
..END :









PARKER V. UNITED STATES, 397 U.S. 96 


       PARKER V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT

        NO. 922, MISC. DECIDED FEBRUARY 27, 1970 


CERTIORARI GRANTED; 411 F.2D 1067, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. 

UPON CONSIDERATION OF THE SUGGESTION OF MOOTNESS FILED BY THE
SOLICITOR GENERAL, AND UPON AN EXAMINATION OF THE ENTIRE RECORD, THE
PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT IS VACATED AND THE
CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE APPEAL
AS MOOT. 

WALTER L. GERASH FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL YEAGLEY,
KEVIN T. MARONEY, AND LEE B. ANDERSON FOR THE UNITED STATES. 
..END :
























YOUNG V. UNITED STATES, 397 U.S. 97 


       YOUNG V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE EIGHTH CIRCUIT

        NO. 579, MISC. DECIDED FEBRUARY 27, 1970 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT WITH DIRECTIONS TO APPOINT COUNSEL FOR THE PETITIONER.  IF
THEREAFTER COUNSEL IS UNABLE TO PRESENT ANY NONFRIVOLOUS ISSUE ON
APPEAL, THE COURT OF APPEALS WOULD THEN BE FREE TO DISMISS THE APPEAL
AS LEGALLY INSUBSTANTIAL. 

THE CHIEF JUSTICE IS OF THE OPINION THAT THE PETITION FOR A WRIT OF
CERTIORARI SHOULD BE DENIED. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND ROGER A. PAULEY FOR THE UNITED STATES. 
..END :
























NEW YORK FEED CO., INC. V. LEARY, 397 U.S. 98 


       NEW YORK FEED CO., INC., ET AL. V. LEARY ET AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

        NO. 992.  DECIDED FEBRUARY 27, 1970  /1/ 


305 F.SUPP.  288, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENTS ARE AFFIRMED. 

/1/  TOGETHER WITH NO. 998, MILKY WAY PRODUCTIONS, INC., ET AL. V.
LEARY ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND THE CASES SET FOR ORAL ARGUMENT. 

HERALD PRICE FAHRINGER FOR APPELLANTS IN NO. 992.  RALPH J. SCHWARZ,
JR., AND ALBERT B. GERBER FOR APPELLANTS IN NO. 998. 

J. LEE RANKIN AND STANLEY BUCHSBAUM FOR APPELLEE LEARY IN BOTH
CASES, AND FRANK S. HOGAN, PRO SE, AND MICHAEL R. JUVILER FOR APPELLEE
HOGAN IN BOTH CASES, LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK,
PRO SE, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND
CHARLES A. LA TORELLA, JR., ASSISTANT ATTORNEY GENERAL, FILED A MOTION
TO DISMISS OR AFFIRM FOR THE ATTORNEY GENERAL OF NEW YORK. 
..END :




















HADLEY V. JUNIOR COLLEGE DISTRICT, 397 U.S. 50 


       HADLEY ET AL. V. JUNIOR COLLEGE DISTRICT OF METROPOLITAN

           KANSAS CITY ET AL.

        APPEAL FROM THE SUPREME COURT OF MISSOURI

        NO. 37.  ARGUED NOVEMBER 10, 1969-- DECIDED FEBRUARY 25,

           1970 


APPELLANTS, RESIDENTS AND TAXPAYERS OF THE KANSAS CITY SCHOOL
DISTRICT, ONE OF EIGHT SCHOOL DISTRICTS CONSTITUTIONG THE JUNIOR
COLLEGE DISTRICT OF METROPOLITAN KANSAS CITY, BROUGHT THIS SUIT
CLAIMING THAT THEIR RIGHT TO VOTE FOR TRUSTEES OF THE DISTRICT WAS
UNCONSTITUTIONALLY DILUTED IN VIOLATION OF THE EQUAL RPOTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT SINCE THEIR SEPARATE DISTRICT CONTAINS
APPROXIMATELY 60% OF THE TOTAL APPORTIONMENT BASIS OF THE ENTIRE JUNIOR
COLLEGE DISTRICT, BUT THE STATE STATUTORY FORMULA RESULTS IN THE
ELECTION OF ONLY 50% OF THE TRUSTEES FROM THEIR DISTRICT.  THE TRIAL
COURT'S DISMISSAL OF THE SUIT WAS UPHELD BY THE MISSOURI SUPREME COURT,
WHICH HELD THE "ONE MAN, ONE VOTE" PRINCIPLE INAPPLICABLE.  HELD:
WHENEVER A STATE OR LOCAL GOVERNMENT BY POPULAR ELECTION SELECTS
PERSONS TO PERFORM PUBLIC FUNCTIONS, THE EQUAL PORTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT REQUIRES THAT EACH QUALIFIED VOTER HAVE AN EQUAL
OPPORTUNITY TO PARTICIPATE IN THE ELECTION, AND WHEN MEMBERS OF AN
ELECTED BODY ARE CHOSEN FROM SEPARATE DISTRICTS, EACH DISTRICT MUST BE
ESTABLISHED ON A BASIS THAT AS FAR AS PRACTICABLE WILL INSURE THAT
EQUAL NUMBERS OF VOTERS CAN VOTE FOR PROPORTIONALLY EQUAL NUMBERS OF
OFFICIALS.  AVERY V. MIDLAND COUNTY, 390 U.S. 474.  PP. 52-59. 

432 S.W.2D 328, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE EXTENT TO WHICH THE FOURTEENTH AMENDMENT AND
THE "ONE MAN, ONE VOTE" PRINCIPLE APPLY IN THE ELECTION OF LOCAL
GOVERNMENT OFFICIALS.  APPELLANTS ARE RESIDENTS AND TAXPAYERS OF THE
KANSAS CITY SCHOOL DISTRICT, ONE OF EIGHT SEPARATE SCHOOL DISTRICTS
THAT HAVE COMBINED TO FORM THE JUNIOR COLLEGE DISTRICT OF METROPOLITAN
KANSAS CITY.  UNDER MISSOURI LAW SEPARATE SCHOOL DISTRICTS MAY VOTE BE
REFERENDUM TO ESTABLISH A CONSOLIDATED JUNIOR COLLEGE DISTRICT AND
ELECT SIX TRUSTEES TO CONDUCT AND MANAGE THE NECESSARY AFFAIRS OF THAT
DISTRICT.  /1/  THE STATE LAW ALSO PROVIDES THAT THESE TRUSTEES SHALL
BE APPORTIONED AMONG THE SEPARATE SCHOOL DISTRICTS ON THE BASIS OF
"SCHOOL ENUMERATION," DEFINED AS THE NUMBER OF PERSONS BETWEEN THE AGES
OF SIX AND 20 YEARS, WHO RESIDE IN EACH DISTRICT.  /2/  IN THE CASE OF
THE KANSAS CITY SCHOOL DISTRICT THIS APPORTIONMENT PLAN RESULTS IN THE
ELECTION OF THREE TRUSTEES, OR 50% OF THE TOTAL NUMBER, FROM THAT
DISTRICT.  SINCE THAT DISTRICT CONTAINS APPROXIMATELY 60% OF THE TOTAL
SCHOOL ENUMERATION IN THE JUNIOR COLLEGE DISTRICT, /3/  APPELLANTS
BROUGHT SUIT CLAIMING THAT THEIR RIGHT TO VOTE FOR TRUSTEES WAS BEING
UNCONSTITUTIONALLY DILUTED IN VIOLATION OF THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT.  THE MISSOURI SUPREME COURT UPHELD THE
TRIAL COURT'S DISMISSAL OF THE SUIT, STATING THAT THE "ONE MAN, ONE
VOTE" PRINCIPLE WAS NOT APPLICABLE IN THIS CASE.  432 S.W.2D 328
(1968).  WE NOTED PROBABLE JURISDICTION OF THE APPEAL, 393 U.S. 1115
(1969), AND FOR THE REASONS SET FORTH BELOW WE REVERSE AND HOLD THAT
THE FOURTEENTH AMENDMENT REQUIRES THAT THE TRUSTEES OF THIS JUNIOR
COLLEGE DISTRICT BE APPORTIONED IN A MANNER THAT DOES NOT DEPRIVE ANY
VOTER OF HIS RIGHT TO HAVE HIS OWN VOTE GIVEN AS MUCH WEIGHT, AS FAR AS
IS PRACTICABLE, AS THAT OF ANY OTHER VOTER IN THE JUNIOR COLLEGE
DISTRICT. 

IN WESBERRY V. SANDERS, 376 U.S. 1 (1964), WE HELD THAT THE
CONSTITUTION REQUIRES THAT "AS NEARLY AS IS PRACTICABLE ONE MAN'S VOTE
IN A CONGRESSIONAL ELECTION IS TO BE WORTH AS MUCH AS ANOTHER'S."  ID.,
AT 7-8.  BECAUSE OF THIS REQUIREMENT WE STRUCK DOWN A GEORGIA STATUTS
WHICH ALLOWED GLARING DISCREPANCIES AMONG THE POPULATIONS IN THAT
STATE'S CONGRESSIONAL DISTRICTS.  IN REYNOLDS V. SIMS, 377 U.S. 533
(1964), AND THE COMPANION CASES, /4/  WE CONSIDERED STATE LAWS THAT HAD
APPORTIONED STATE LEGISLATURES IN A WAY THAT AGAIN SHOWED GLARING
DISCREPANCIES IN THE NUMBER OF PEOPLE WHO LIVED IN DIFFERENT
LEGISLATIVE DISTRICTS.  IN AN ELABORATE OPINION IN REYNOLDS WE CALLED
ATTENTION TO PRIOR CASES INDICATING THAT A QUALIFIED VOTED HAS A
CONSTITUTIONAL RIGHT TO VOTE IN ELECTIONS WITHOUT HAVING HIS VOTE
WRONGFULLY DENIED, DEBASED, OR DILUTED.  EX PARTE SIEBOLD, 100 U.S. 371
(1880); EX PARTE YARBROUGH, 110 U.S. 651 (1884); UNITED STATES V.
MOSLEY, 238 U.S. 383 (1915); GUINN V. UNITED STATES, 238 U.S. 347
(1915); LANE V. WILSON, 307 U.S. 268 (1939); UNITED STATES V. CLASSIC,
313 U.S. 299 (1941).  ##HC53 APPLYING THE BASIC PRINCIPLE OF WESBERRY,
WE THEREFORE HELD THAT THE VARIOUS STATE APPORTIONMENT SCHEMES DENIED
SOME VOTERS THE RIGHT GUARANTEED BY THE FOURTEENTH AMENDMENT TO HAVE
THEIR VOTES GIVEN THE SAME WEIGHT AS THAT OF OTHER VOTERS.  FINALLY, IN
AVERY V. MIDLAND COUNTY, 390 U.S. 474 (1968), WE APPLIED THIS SAME
PRINCIPLE TO THE ELECTION OF TEXAS COUNTY COMMISSIONERS, HOLDING THAT A
QUALIFIED VOTER IN A LOCAL ELECTION ALSO HAS A CONSTITUTIONAL RIGHT TO
HAVE HIS VOTE COUNTED WITH SUBSTANTIALLY THE SAME WEIGHT AS THAT OF ANY
OTHER VOTER IN A CASE WHERE THE ELECTED OFFICIALS EXERCIZED "GENERAL
GOVERNMENTAL POWERS OVER THE ENTIRE GEOGRAPHIC AREA SERVED BY THE
BODY."  ID., AT 485. 

APPELLANTS IN THIS CASE ARGUED THAT THE JUNIOR COLLEGE TRUSTEES
EXERCISED GENERAL GOVERNMENTAL POWERS OVER THE ENTIRE DISTRICT AND THAT
UNDER AVERY THE STATE WAS THUS REQUIRES TO APPORTION THE TRUSTEES
ACCORDING TO POPULATION ON AN EQUAL BASIS, AS FAR AS PRACTICABLE. 
APPELLANTS ARGUE THAT SINCE THE TRUSTEES CAN LEVY AND COLLECT TAXES,
ISSUE BONDS WITH CERTAIN RESTRICTIONS, HIRE AND FIRE TEACHERS, MAKE
CONTRACTS, COLLECT FEES, SUPERVISE AND DISCIPLINE STUDENTS, PASS ON
PETITIONS TO ANNEX SCHOOL DISTRICTS, ACQUIRE PROPERTY BY CONDEMNATION,
AND IN GENERAL MANAGE THE OPERATIONS OF THE JUNIOR COLLEGE, /5/  THEIR
POWERS ARE EQUIVALENT, FOR APPORTIONMENT PURPOSES, TO THOSE EXERCISED
BY THE COUNTY COMMISSIONERS IN AVERY.  WE FEEL THAT THESE POWERS, WHILE
NOT FULLY AS BROAD AS THOSE OF THE MIDLAND COUNTY COMMISSIONERS, /6/
CERTAINLY SHOW THAT THE TRUSTEES PERFORM IMPORTANT GOVERNMENTAL
FUNCTIONS WITHIN THE DISTRICTS, AND WE THINK THESE POWERS ARE GENERAL
ENOUGH AND HAVE SUFFICIENT IMPACT THROUGHOUT THE DISTRICT TO JUSTIFY
THE CONCLUSION THAT THE PRINCIPLE WHICH WE APPLIED IN AVERY SHOULD ALSO
BE APPLIED HERE. 

THIS COURT HAS CONSISTENTLY HELD IN A LONG SERIES OF CASES, /7/
THAT IN SITUATIONS INVOLVING ELECTIONS, THE STATES ARE REQUIRED TO
INSURE THAT EACH PERSON'S VOTE COUNTS AS MUCH, INSOFAR AS IT IS PRA
TICABLE, AS ANY OTHER PERSON'S.  WE HAVE APPLIED THIS PRINCIPLE IN
CONGRESSIONAL ELECTIONS, STATE LEGISLATIVE ELECTIONS, AND LOCAL
ELECTIONS.  THE CONSISTENT THEME OF THOSE DECISIONS IS THAT THE RIGHT
TO VOTE IN AN ELECTION IS PROTECTED BY THE UNITED STATES CONSTITUTION
AGAINST DILUTION OR DEBASEMENT.  WHILE THE PARTICULAR OFFICES INVOLVED
IN THESE CASES HAVE VARIED, IN EACH CASE A CONSTANT FACTOR IS THE
DECISION OF THE GOVERNMENT TO HAVE CITIZENS PARTCIPATE INDIVIDUALLY BY
BALLOT IN THE SELECTION OF CERTAIN PEOPLE WHO CARRY OUT GOVERNMENTAL
FUNCTIONS.  THUS IN THE CASE NOW BEFORE US, WHILE THE OFFICE OF JUNIOR
COLLEGE TRUSTEE DIFFERS IN CERTAIN RESPECTS FROM THOSE OFFICES
CONSIDERED IN PRIOR CASES, IT IS EXACTLY THE SAME IN THE ONE CRUCIAL
FACTOR-- THESE OFFICIALS ARE ELECTED BY POPULAR VOTE. 

WHEN A COURT IS ASKED TO DECIDE WHETHER A STATE IS REQUIRED BY THE
CONSTITUTION TO GIVE EACH QUALIFIED VOTER THE SAME POWER IN AN ELECTION
OPEN TO ALL, THERE IS NO DISCERNIBLE, VALID REASON WHY CONSTITUTIONAL
DISTINCTIONS SHOULD BE DRAWN ON THE BASIS OF THE PURPOSE OF THE
ELECTION.  IF ONE PERSON'S VOTE IS GIVEN LESS WEIGHT THROUGH UNEQUAL
APPORTIONMENT, HIS RIGHT TO EQUAL VOTING PARTICIPATION IS IMPAIRED JUST
AS MUCH WHEN HE VOTES FOR A SCHOOL BOARD MEMBER AS WHEN HE VOTES FOR A
STATE LEGISLATOR.  WHILE THERE ARE DIFFERENCES IN THE POWERS OF
DIFFERENT OFFICIALS, THE CRUCIAL CONSIDERATION IS THE RIGHT OF EACH
QUALIFIED VOTER TO PARTICIPATE ON AN EQUAL FOOTING IN THE ELECTION
PROCESS.  IT SHOULD BE REMEMBERED THAT IN CASES LIKE THIS ONE WE ARE
ASKED BY VOTERS TO INSURE THAT THEY ARE GIVEN EQUAL TREATMENT, AND FROM
THEIR PERSPECTIVE THE HARM FROM UNEQUAL TREATMENT IS THE SAME IN ANY
ELECTION, REGARDLESS OF THE OFFICIALS SELECTED. 

IF THE PURPOSE OF A PARTICULAR ELECTION WERE TO BE THE DETERMINING
FACTOR IN DECIDING WHETHER VOTERS ARE ENTITLED TO EQUAL VOTING POWER,
COURTS WOULD BE FACED WITH THE DIFFICULT JOB OF DISTINGUISHING BETWEEN
VARIOUS ELECTIONS.  WE CANNOT READILY PERCEIVE JUDICIALLY MANAGEABLE
STANDARDS TO AID IN SUCH A TASK.  IT MIGHT BE SUGGESTED THAT EQUAL
APPORTIONMENT IS REQUIRED ONLY IN "IMPORTANT" ELECTIONS, BUT GOOD
JUDGMENT AND COMMON SENSE TELL US THAT WHAT MIGHT BE A VITAL ELECTION
TO ONE VOTER MIGHT WELL BE A ROUTINE ONE TO ANOTHER.  IN SOME INSTANCES
THE ELECTION OF A LOCAL SHERIFF MAY BE FAR MORE IMPORTANT THAN THE
ELECTION OF A UNITED STATES SENATOR.  IF THERE IS ANY WAY OF
DETERMINING THE IMPORTANCE OF CHOOSING A PARTICULAR GOVERNMENT
OFFICIAL, WE THINK THE DECISION OF THE SENATE TO SELECT THAT OFFICIAL
BY POPULAR VOTE IS A STRONG ENOUGH INDICATION THAT THE CHOICE IS AN
IMPORTANT ONE.  THIS IS SO BECAUSE IN OUR COUNTRY POPULAR ELECTION HAS
TRADITIONALLY BEEN THE METHOD FOLLOWED WHEN GOVERNMENT BY THE PEOPLE IS
MOST DESIRED. 

IT HAS ALSO BEEN URGED THAT WE DISTINGUISH FOR APPORTIONMENT
PURPOSES BETWEEN ELECTIONS FOR "LEGISLATIVE" OFFICIALS AND THOSE FOR
"ADMINISTRATIVE" PURPOSES.  SUCH A SUGGESTION WOULD LEAVE COURTS WITH
AN EQUALLY UNMANAGEABLE PRINCIPLE SINCE GOVERNMENTAL ACTIVITIES "CANNOT
EASILY BE CLASSIFIED IN THE NEAT CATEGORIES FAVORED BY CIVICS TEXTS,"
AVERY, SUPRA, AT 482, AND IT MUST ALSO BE REJECTED.  WE THEREFORE HOLD
TODAY THAT AS A GENERAL RULE, WHENEVER A STATE OR LOCAL GOVERNMENT
DECIDED TO SELECT PERSONS BY POPULAR ELECTION TO PERFORM GOVERNMENTAL
FUNCTIONS, THE EQUAL PORTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES THAT EACH QUALIFIED VOTER MUST BE GIVEN AN EQUAL OPPORTUNITY
TO PARTICIPATE IN THAT ELECTION, AND WHEN MEMBERS OF AN ELECTED BODY
ARE CHOSEN FROM SEPARATE DISTRICTS, EACH DISTRICT MUST BE ESTABLISHED
ON A BASIS THAT WILL INSURE, AS FAR AS IS PRACTICABLE, THAT EQUAL
NUMBERS OF VOTERS CAN VOTE FOR PROPORTIONALLY EQUAL NUMBERS OF
OFFICIALS.  IT IS OF COURSE POSSIBLE THAT THERE MIGHT BE SOME CASE IN
WHICH A STATE ELECTS CERTAIN FUNCTIONARIES WHOSE DUTIES ARE SO FAR
REMOVED FROM NORMAL GOVERNMENTAL ACTIVITIES AND SO DISPROPORTIONATELY
AFFECT DIFFERENT GROUPS THAT A POPULAR ELECTION IN COMPLIANCE WITH
REYNOLDS, SUPRA, MIGHT NOT BE REQUIRED, BUT CERTAINLY WE SEE NOTHING IN
THE PRESENT CASE THAT INDICATES THAT THE ACTIVITIES OF THESE TRUSTEES
FIT IN THAT CATEGORY.  EDUCATION HAS TRADITIONALLY BEEN A VITAL
GOVERNMENTAL FUNCTION, AND THESE TRUSTEES, WHOSE ELECTION THE STATE HAS
OPENED TO ALL QUALIFIED VOTERS, ARE GOVERNMENTAL OFFICIALS IN EVERY
RELEVANT SENCE OF THAT TERM. 

IN THIS PARTICULAR CASE THE "ONE MAN, ONE VOTE: PRINCIPLE IS TO SOME
EXTENT ALREADY REFLECTED IN THE MISSOURI STATUTE.  THAT ACT PROVIDES
THAT IF NO ONE OR MORE OF THE COMPONENT SCHOOL DISTRICTS HAS 33 1/3% OR
MORE OF THE TOTAL ENUMERATION OF THE JUNIOR COLLEGE DISTRICT, THEN ALL
SIX TRUSTEES ARE ELECTED AT LARGE.  IF, HOWEVER, ONE OR MORE DISTRICTS
HAS BETWEEN 33 1/3% AND 50% OF THE TOTAL ENUMERATION, EACH SUCH
DISTRICT ELECTS TWO TRUSTEES AND THE REST ARE ELECTED AT LARGE FROM THE
REMAINING DISTRICT.  SIMILARLY, IF ONE DISTRICT HAS BETWEEN 50% AND 66
2/3% OF THE ENUMERATION IT ELECTS THREE TRUSTEES, AND IF ONE DISTRICT
HAS MORE THAN 66 2/3% IT ELECTS FOUR TRUSTEES.  /6/  THIS SCHEME THUS
ALLOCATES INCREASINGLY MORE TRUSTEES TO LARGE DISTRICTS AS THEY
REPRESENT AN INCREASING PROPORTION OF THE TOTAL ENUMERATION. 

ALTHOUGH THE STATUTORY SCHEME REFLECTS TO SOME EXTENT A PRINCIPLE OF
EQUAL VOTING POWER, IT DOES SO IN A WAY THAT DOES NOT COMPORT WITH
CONSTITUTIONAL REQUIREMENTS.  THIS IS SO BECAUSE THE ACT NECESSARILY
RESULTS IN A SYSTEMATIC DISCRIMINATION AGAINST VOTERS IN THE MORE
POPULOUS SCHOOL DISTRICTS.  THIS DISCRIMINATION OCCURS BECAUSE WHENEVER
A LARGE DISTRICT'S PERCENTAGE OF THE TOTAL ENUMERATION FALLS WITHIN A
CERTAIN PERCENTAGE RANGE IT IS ALWAYS ALLOCATED THE NUMBER OF TRUSTEES
CORRESPONDING TO THE BOTTOM OF THAT RANGE.  UNLESS A PARTICULAR LARGE
DISTRICT HAS EXACTLY 33 1/3%, 50%, OR 66 2/3% OF THE TOTLA ENUMERATION
IT WILL ALWAYS HAVE PROPORTIONALLY FEWER TRUSTEES THAN THE SMALL
DISTRICTS.  AS HAS BEEN POINTED OUT, IN THE CASE OF THE KNASAS CITY
SCHOOL DISTRICT APPROXIMATELY 60% OF THE TOTAL ENUMERATION ENTITLES
THAT DISTRICT TO ONLY 50% OF THE TRUSTEES.  THUS WHILE VOTERS IN LARGE
SCHOOL DISTRICTS MAY FREQUENTLY HAVE LESS EFFECTIVE VOTING POWER THAN
RESIDENTS OF SMALL DISTRICTS, THEY CAN NEVER HAVE MORE.  SUCH BUILT-IN
DISCRIMINATION AGAINST VOTERS IN LARGE DISTRICTS CANNOT BE SUSTAINED AS
A SUFFICIENT COMPLIANCE WITH THE CONSTITUTIONAL MANDATE THAT EACH
PERSON'S VOTE COUNTS AS MUCH AS ANOTHER'S, AS FAR AS PRACTICABLE. 
CONSEQUENTLY MISSOURI CANNOT ALLOCATE THE JUNIOR COLLEGE TRUSTEES
ACCORDING TO THE STATUTORY FORMULA EMPLOYED IN THIS CASE.  /8/  WE
WOULD BE FACED WITH A DIFFERENT QUESTION IF THE DEVIATION FROM EQUAL
APPORTIONMENT PRESENTED IN THIS CASE RESULTED FROM A PLAN THAT DID NOT
CONTAIN A BUILT-IN BIAS IN FAVOR OF SMALL DISTRICTS, BUT RATHER FROM
THE INHERENT MATHEMATICAL COMPLICATIONS IN EQUALLY APPORTIONING A SMALL
NUMBER OF TRUSTEES AMONG A LIMITED NUMBER OF COMPONENT DISTRICTS.  WE
HAVE SAID BEFORE THAT MATHEMATICAL EXACTITUDE IS NOT REQUIRED,
WESBERRY, SUPRA, AT 18, REYNOLDS, SUPRA, AT 577, BUT A PLAN THAT DOES
NOT AUTOMATICALLY DISCRIMINATE IN FAVOR OF CERTAIN DISTRICTS IS. 

IN HOLDING THAT THE GUARANTEE OF EQUAL VOTING STRENGTH FOR EACH
VOTER APPLIES IN ALL ELECTIONS OF GOVERNMENTAL OFFICIALS, WE DO NOT
FEEL THAT THE STATES WILL BE INHIBITED IN FINDING WAYS TO INSURE THAT
LEGITIMATE POLITICAL GOALS OF REPRESENTATION ARE ACHIEVED.  WE HAVE
PREVIOUSLY UPHELD AGAINST CONSTITUTIONAL CHALLENGE AN ELECTION SCHEME
THAT REQUIRED THAT CANDIDATES BE RESIDENTS OF CERTAIN DISTRICTS THAT
DID NOT CONTAIN EQUAL NUMBERS OF PEOPLE.  DUSCH V. DAVIS, 387 U.S. 112
(1967).  SINCE ALL THE OFFICIALS IN THAT CASE WERE ELECTED AT LARGE,
THE RIGHT OF EACH VOTER WAS GIVEN EQUAL TREATMENT.  /10/  WE HAVE ALSO
HELD THAT WHERE A STATE CHOOSES TO SELECT MEMBERS OF AN OFFICIAL BODY
BY APPOINTMENT RATHER THAN ELECTION, AND THAT CHOICE DOES NOT ITSELF
OFFEND THE CONSTITUTION, THE FACT THAT EACH OFFICIAL DOES NOT
"REPRESENT" THE SAME NUMBER OF PEOPLE DOES NOT ALWAYS DENY THOSE PEOPLE
EQUAL PROTECTION OF THE LAWS.  SAILORS V. BOARD OF EDUCATION, 387 U.S.
105 (1967); CF. FORTSON V. MORRIS, 385 U.S. 231 (1966).  AND A STATE
MAY, IN CERTAIN CASES, LIMIT THE RIGHT TO VOTE TO A PARTICULAR GROUP OR
CLASS OF PEOPLE.  AS WE SAID BEFORE, "(VIABLE LOCAL GOVERNMENTS MAY
NEED MANY INNOVATIONS, NUMEROUS COMBINATIONS OF OLD AND NEW DEVICES,
GREAT FLEXIBILITY IN MUNICIPAL ARRANGEMENTS TO MEET CHANGING URBAN
CONDITIONS.  WE SEE NOTHING IN THE CONSTITUTION TO PREVENT
EXPERIMENTATION."  SAILORS, SUPRA, AT 110-111.  BUT ONCE A STATE HAS
DECIDED TO USE THE PROCESS OF POPULAR ELECTION AND "ONCE THE CLASS OF
VOTERS IS CHOSEN AND THEIR QUALIFICATIONS SPECIFIED, WE SEE NO
CONSTITUTIONAL WAY BY WHICH EQUALITY OF VOTING POWER MAY BE EVADED." 
GRAY V. SANDERS, 372 U.S. 368, 381 1963). 

FOR THE REASONS SET FORTH ABOVE THE JUDGMENT BELOW IS REVERSED AND
THE CASE IS REMANDED TO THE MISSOURI SUPREME COURT FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

     REVERSED AND REMANDED. 

/1/  MO. REV. STAT. SEC. 178.000, 178.820 (CUM. SUPP. 1967). 

/2/  MO. REV. STAT. SEC. 167.011 (CUM. SUPP. 1967). 

/3/  FOR THE YEARS OF 1963 THROUGH 1967, THE ACTUAL ENUMERATION IN
THE KANSAS CITY SCHOOL DISTRICT VARIED BETWEEN 63.55% AND 59.49%.  APP.
38. 

/4/  WMCA, INC. V. LOMENZO, 377 U.S. 633 (1964); MARYLAND COMMITTEE
V. TAWES, 377 U.S. 656 (1964); DAVIS V. MANN, 377 U.S. 678 (1964);
ROMAN V. SINCOCK, 377 U.S. 695 (1964); LUCAS V. COLORADO GEN. ASSEMBLY,
377 U.S. 713 (1964). 

/5/  MO. REV. STAT. SEC. 167.161, 171.011, 177.031, 177.041,
178.770, 178.850-178.890 (CUM. SUPP. 1967). 

/6/  THE MIDLAND COUNTY COMMISSIONERS ESTABLISHED AND MAINTAINED THE
COUNTY JAIL, APPOINTED NUMEROUS COUNTY OFFICIALS, MADE CONTRACTS, BUILT
ROADS AND BRIDGES, ADMINISTERED THE COUNTY WELFARE SYSTEM, PERFORMED
DUTIES IN CONNECTION WITH ELECTIONS, SET THE COUNTY TAX RATE, ISSUED
BONDS, ADOPTED THE COUNTY BUDGET, BUILT AND RAN HOSPITALS, AIRPORTS,
AND LIBRARIES, FIXED SCHOOL DISTRICT BOUNDARIES, ESTABLISHED A HOUSING
AUTHORITY, AND DETERMINED THE ELECTION DISTRICTS FOR COUNTY
COMMISSIONERS.  AVERY, SUPRA, AT 476-477. 

/7/  WESBERRY, SUPRA; REYNOLDS, SUPRA; CASES CITED N. 4, SUPRA;
AVERY, SUPRA; GRAY V. SANDERS, 372 U.S. 368 (1963); BURNS V.
RICHARDSON, 384 U.S. 73 (1966); SWANN V. ADAMS, 385 U.S. 440 (1967). 

/8/  MO. REV. STAT. SEC. 178.820 (CUM. SUPP. 1967). 

/9/  THERE IS SOME QUESTION IN THIS CASE WHETHER SCHOOL ENUMERATION
FIGURES, RATHER THAN ACTUAL POPULATION FIGURES, CAN BE USED AS A BASIS
OF APPORTIONMENT.  CF. BURNS V. RICHARDSON, 384 U.S. 73, 90-95 (1966). 
THERE IS NO NEED TO DECIDE THIS QUESTION AT THIS TIME SINCE, EVEN IF
SCHOOL ENUMERATION IS A PERMISSIBLE BASIS, THE PRESENT STATUTE FAILS TO
APPORTION TRUSTEES CONSTITUTIONALLY. 

/10/  THE STATUTE INVOLVED IN THIS CASE PROVIDES THAT TRUSTEES WHO
ARE ELECTED FROM COMPONENT DISTRICTS RATHER THAN AT LARGE MUST BE
RESIDENTS OF THE DISTRICT FROM WHICH THEY ARE ELECTED.  MO. REV. STAT.
SEC. 178.820(2) (CUM. SUPP. 1967). 

MR. JUSTICE HARLAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

TODAY'S DECISION DEMONSTRATES, TO A DEGREE THAT NO OTHER CASE HAS,
THE PERVASIVENESS OF THE DEFERAL JUDICIAL INTRUSION INTO STATE
ELECTORAL PROCESSES THAT WAS UNLEASHED BY THE "ONE MAN, ONE VOTE: RULE
OF REYNOLDS V. SIMS, 377 U.S. 533 (1964). 

REYNOLDS ESTABLISHED THAT RULE FOR THE APPORTIONMENT OF STATE
LEGISLATURES, THEREBY DENYING STATES THE RIGHT TO TAKE INTO ACCOUNT IN
THE STRUCTURING OF THEIR LEGISLATURES ANY HISTORICAL, GEOGRAPHICAL,
ECONOMIC, OR SOCIAL CONSIDERATIONS, OR ANY OF THE MANY OTHER PRACTICAL
AND SUBTLE FACTORS THAT HAVE ALWAYS BEEN RECOGNIZED AS PLAYING A
LEGITIMATE PART IN THE PRACTICE OF POLITICS. 

FOUR YEARS LATER, IN AVERY V. MIDLAND COUNTY, 390 U.S. 474 (1968),
THE "ONE MAN, ONE VOTE" RULE WAS EXTENDED TO MANY KINDS OF LOCAL
GOVERNMENTAL UNITS, THEREBY AFFECTING TO AN UNKNOWN EXTENT THE
ORGANIZATIONAL INTEGRITY OF SOME 80,000 SUCH UNITS THROUGHOUT THE
COUNTRY, AND CONSTRICTING THE STATES IN THE USE OF THE ELECTORAL
PROCESS IN THE ESTABLISHMENT OF NEW ONES. 

AND TODAY, THE COURT HOLDS THE "ONE MAN, ONE VOTE" RULE APPLICABLE
TO THE VARIOUS BOARDS OF TRUSTEES OF MISSOURI'S JUNIOR COLLEGE SYSTEM,
AND THE CASE FOREBODES, IF INDEED IT DOES NOT DECIDE, THAT THE RULE IS
TO BE APPLIED TO EVERY ELECTIVE PUBLIC BODY, NO MATTER WHAT ITS
NATURE. 

WHILE I DEEM MYSELF BOUND BY REYNOLDS AND AVERY-- DESPITE MY
CONTINUED DISAGREEMENT WITH THEM AS CONSTITUTIONAL HOLDINGS "SEE MY
DISSENTING OPINIONS IN REYNOLDS, 377 U.S., AT 589, AND IN AVERY, 390
U.S., AT 486)-- I DO NOT THINK THAT EITHER OF THESE CASES, OR ANY OTHER
IN THIS COURT, JUSTIFIES THE PRESENT DECISION.  I THEREFORE DISSENT,
TAKING OFF FROM AVERY IN WHAT IS ABOUT TO BE SAID. 

        I 

IN AVERY THE COURT ACKNOWLEDGED THAT "THE STATES' VARIED, PRAGMATIC
APPROACH IN ESTABLISHING GOVERNMENTS" HAS PRODUCED "A STAGGERING
NUMBER" OF LOCAL GOVERNMENTAL UNITS.  'THE COURT NOTED THAT, "WHILE
SPECIAL-PURPOSE ORGANIZATIONS ABOUND . . . , VIRTUALLY EVERY AMERICAN
LIVES WITHIN WHAT HE AND HIS NEIGHBORS REGARD AS A UNIT OF LOCAL
GOVERNMENT WITH GENERAL RESPONSIBILITY AND POWER FOR LOCAL AFFAIRS." 
THE MIDLAND COUNTY COMMISSIONERS COURT, THE BODY WHOSE COMPOSITION WAS
CHALLENGED IN AVERY, WAS FOUND TO POSSESS A BROAD RANGE OF POWERS THAT
MADE IT "PRESENTATIVE OF MOST OF THE GENERAL GOVERNING BODIES OF
AMERICAN CITIES, COUNTIES, TOWNS, AND VILLAGES," AND THE COURT WAS AT
PAINS TO LIMIT ITS HOLDING TO SUCH GENERAL BODIES.  390 U.S., AT 482
485.  TODAY THE COURT DISCARDS THAT LIMITATION, STATING THAT "THERE IS
NO DISCERNIBLE, VALID REASON WHY CONSTITUTIONAL DISTINCTIONS SHOULD BE
DRAWN ON THE BASIS OF THE PURPOSE OF THE ELECTION."  ANTE, AT 54-55.  I
BELIEVE, TO THE CONTRARY, THAT THE NEED TO PRESERVE FLEXIBILITY IN THE
DESIGN OF LOCAL GOVERNMENTAL UNITS THAT SERVE SPECIALIZED FUNCTIONS AND
THAT MUST MEET PARTICUALR LOCAL CONDITIONS, FURNISHES A POWERFUL REASON
TO REFUSE TO EXTEND THE AVERY RULING BEYOND ITS LIMITS.  IF LOCAL UNITS
HAVING GENERAL GOVERNMENTAL POWERS ARE TO BE CONSIDERED, LIKE STATE
LEGISLATURES, AS HAVING A SUBSTANTIAL IDENTITY OF FUNCTION THAT
JUSTIFIES IMPOSING ON THEM A UNIFORMITY OF ELECTIVE STRUCTURE, IT IS
CLEAR THAT SPECIALIZED LOCAL ENTITIES ARE CHARACTERIZED BY PRECISELY
THE OPPOSITE OF SUCH IDENTITY.  FROM IRRIGATION DISTRICTS TO AIR
POLLUTION CONTROL AGENICES TO SCHOOL DISTRICTS, SUCH UNITS VARY IN THE
MAGNITUDE OF THEIR IMPACT UPON VARIOUS CONSTITUENCIES AND IN THE MANNER
IN WHICH THE BENEFITS AND BURDENS OF THEIR OPERATIONS INTERACT WITH
OTHER ELEMENTS OF THE LOCAL POLITICAL AND ECONOMIC PICTURE.  TODAY'S
RULING WILL FORBID THESE AGENCIES FROM ADOPTING ELECTORAL MECHANISMS
THAT TAKE THESE VARIATIONS INTO ACCOUNT. 

IN MY OPINION, THIS RULING IMPOSES AN ARBITRARY LIMITATION ON THE
WAYS IN WHICH LOCAL AGENCIES MAY BE CONSTITUTED.  THE COURT CONCEDES
THAT THE STATES MAY USE MEANS OTHER THAN APPORTIONMENT "TO INSURE THAT
LEGITIMATE POLITICAL GOALS OF REPRESENTATION ARE ACHIEVED."  FOR
EXAMPLE, OFFICIALS ELECTED AT LARGE MAY BE REQUIRED TO BE RESIDENTS OF
PARTICULAR AREAS THAT DO NOT CONTAIN EQUAL NUMBERS OF PEOPLE, DUSCH V.
DAVIS, 387 U.S. 112 (1967); THE RIGHT TO VOTE MAY BE DENIED OUTRIGHT TO
PERSONS WHOSE INTEREST IN THE FUNCTION PERFORMED BY THE AGENCY IS
NONEXISTENT OR SLIGHT, CF. KRAMER V. UNION FREE SCHOOL DISTRICT, 395
U.S. 621 (1969); CIPRIANO V. CITY OF HOUMA, 395 U.S. 701 (1969); OR THE
STATE MAY IN MANY INSTANCES ABANDON THE ELECTIVE PROCESS ALTOGETHER AND
ALLOW MEMBERS OF AN OFFICIAL BODY TO BE APPOINTED, WITHOUT ANY REGARD
FOR THE EQUAL-POPULATION PRINCIPLE, SAILOR V. BOARD OF EDUCATION, 387
U.S. 105 (1967).  SINCE THE COURT RECOGNIZES THE STATES' NEED FOR
FLEXIBILITY IN STRUCTURING LOCAL UNITS, I AM UNABLE TO SEE ANY BASIS
FOR ITS SELECTIVELY DENYING TO THEM ONE OF THE MEANS TO ACHIEVE SUCH
FLEXIBILITY.  IF, AS THE COURT SPECULATES, OTHER MEANS WILL PROVE AS
EFFECTIVE AS APPORTIONMENT IN THE ADAPTATION OF LOCAL AGENCIES TO MEET
SPECIFIC NEEDS, PRESUMABLY THOSE OTHER MEANS WILL ALSO ENALBE THE
STATES JUST AS EFFECTIVELY TO ACCOMPLISH WHATEVER EVILS THE COURT
THINKS IT IS PREVENTING BY TODAY'S DECISION.  THE COURT HAS NOT SHOWN
THAT, UNDER THE SUPERVISION OF STATE LEGISLATURES THAT ARE APPORTIONED
ACCORDING TO REYNOLDS, FLEXIBLE METHODS OF APPORTIONMENT OF LOCAL
OFFICIAL BODIES CARRY ANY GREATER DANGER OF ABUSE THAN THESE OTHER
MEANS OF ACHIEVING THE DESIRABLE GOAL OF SPECIALIZATION.  THE COURT'S
INPOSITION OF THIS ARBITRARY LIMITATION ON THE STATES CAN BE JUSTIFIED
ONLY IN THE NAME OF MATHEMATICAL NICETY. 

I DO NOT BELIEVE THAT, EVEN AFTER AVERY, SUCH A RESULT IS COMPELLED
BY THE ABSENCE OF "JUDICIALLY MANAGEABLE STANDARDS" FOR THE "DIFFICULT
JOB OF DISTINGUISHING BETWEEN VARIOUS ELECTION."  ANTE, AT 55.  BEFORE
TODAY, THE COURT'S RULE WAS THAT "ONE MAN, ONE VOTE" APPLIED ONLY TO
LOCAL BODIES HAVING "GENERAL GOVERNMENTAL POWERS OVER THE ENTIRE
GEOGRAPHIC AREA SERVED BY THE BODY."  390 U.S., AT 485.  THE COURT IN
AVERY PROFESSED NO TEMERITY ABOUT CONCLUDING THAT THE MIDLAND COUNTY
COMMISSIONERS COURT WAS SUCY A BODY.  THE COURT'S MERE RECITATION OF
THE POWERS OF THAT ENTITY, ANTE, AT 53-54, N. 6, SUFFICES TO ESTABLISH
THAT CONCLUSION.  AT THE SAME TIME, IT CANNOT BE ARGUED SERIOUSLY THAT
THE JUNIOR COLLEGE DISTRICT OF METROPOLITAN KANSAS CITY IS THE GENERAL
GOVERNING BODY FOR THE PEOPLE OF ITS AREA.  THE MERE FACT THAT THE
TRUSTEES CAN, WITH RESTRICTIONS, LEVY TAXES, ISSUE BONDS, AND CONDEMN
PROPERTY FOR SCHOOL PURPOSES DOES NOT DETRACT FROM THE CRUCIAL
CONSIDERATION THAT THE SOLE PURPOSE FOR WHICH THE DISTRICT EXISTS IS
THE OPERATION OF A JUNIOR COLLEGE.  IF THE COURT ADHERED TO THE AVERY
LINE, MARGINAL CASES WOULD OF COURSE ARISE IN WHICH THE COURTS WOULD
FACE DIFFICULTY IN DETERMINING WHETHER A PARTICULAR ENTITY EXERCISED
GENERAL GOVERNMENTAL POWERS, BUT SUCH A DETERMINATION WOULD BE NO
DIFFERENT IN KIND FROM MANY OTHER MATTERS OF DEGREE UPON WHICH COURTS
MUST CONTINUALLY PASS.  THE IMPORTANCE OF ENSURING FLEXIBILITY IN THE
ORGANIZATION OF SPECIALIZED UNITS OF GOVERNMENT, AND THE UNCERTAINTY
WHETHER THE RULE ANNOUNCED TODAY WILL FURTHER ANY IMPORTANT
COUNTERVAILING INTEREST, CONVINCE ME THAT THE COURT SHOULD NOT PROCEED
FURTHER INTO THE POLITICAL THICKET THAN IT HAS ALREADY GONE IN AVERY. 

        II 

THE FACTS OF THIS CASE AFFORD A CLEAR INDICATION OF THE EXTENT TO
WHICH REASONABLE STATE OBJECTIVES ARE TO BE SACRIFICED ON THE ALTAR OF
NUMERICAL EQUALITY.  WE ARE NOT FACED WITH AN APPORTIONMENT SCHEME THAT
IS A HISTORICAL RELIC, WITH NO PRESENT-DAY JUSTIFICATION, OR ONE THAT
REFLECTS THE STRANGLEHOLD OF A PARTICULAR GROUP THAT, HAVING ONCE
ATTAINED POWER, BLINDLY RESISTS A REDISTRIBUTION.  THE STRUCTURE OF THE
JUNIOR COLLEGE DISTRICT OF METROPOLITAN KANSAS CITY IS BASED UPON A
STATE STATUTE ENACTED IN 1961.  PRIOR TO THAT DATE, THE INDIVIDUAL
SCHOOL BOARDS HAD THE POWER TO CREATE THEIR OWN JUNIOR COLLEGES, AS
THEY STILL DO, BUT THERE WAS APPARENTLY NO AUTHORIZATION FOR
COOPERATION AMONG DISTRICTS.  THE 1961 STATUTE WAS ENACTED OUT OF
CONCERN ON THE PART OF THE LEGISLATURE THAT MISSOURI'S PUBLIC
EDUCATIONAL FACILITIES WERE NOT EXPANDING AT A SATISFACTORY RATE, SEE
THREE RIVERS JUNIOR COLLEGE DISTRICT V. STATLER, 421 S.W.2D 235, 237
(MO. 1967).  /1/ 

THE PROVISIONS OF THE STATUTE EVIDENCE A LEGISLATIVE DETERMINATION
OF THE MOST EFFECTIVE MEANS TO ENCOURAGE EXPANSION THROUGH COOPERATION
BETWEEN DISTRICTS. 

THE STATUTORY PROVISION FOR ELECTION OF THE SIX-MAN BOARD OF
TRUSTEES, SUMMARIZED BY THE COURT, REFLECTS A CAREFUL BALANCING OF THE
DESIRABILITY OF POPULATION-BASED REPRESENTATION AGAINST THE PRACTICAL
PROBLEMS INVOLVED IN THE CREATION OF NEW EDUCATIONAL UNITS.  THE
STATUTE DOES NOT BY ITS OWN FORCE CREATE ANY JUNIOR COLLEGE DISTRICTS;
THIS IS LEFT TO THE INITIATIVE OF THE RESIDENTS OF PARTICULAR AREAS WHO
ARE INTERESTED IN PROVIDING PUBLIC JUNIOR-COLLEGE EDUCATION FOR THEIR
CHILDREN.  IN RECOGNITION OF THE FACT THAT INDIVIDUAL SCHOOL DISTRICTS
MAY LACK THE FUNDS OR THE POPULATION TO SUPPORT A JUNIOR COLLEGE OF
THEIR OWN, THE STATE LEGISLATURE HAS AUTHORIZED THEM TO MAKE VOLUNTARY
ARRANGEMENTS WITH THEIR NEIGHBORS FOR JOINT FORMATION OF A JUNIOR
COLLEGE DISTRICT.  IF ONE OF THE COOPERATING SCHOOL DISTRICTS GREATLY
PREPONDERATES IN SIZE, IT ENTERS INTO THE ARRANGEMENT KNOWING THAT ITS
REPRESENTATION ON THE BOARD OF TRUSTEES, WHILE LARGE, WILL BE SOMEWHAT
SMALLER THAN IT WOULD BE IF BASED STRICTLY ON RELATIVE SCHOOL
ENUMERATION. 

THE FEATURES OF THIS SYSTEM ARE SURELY SENSIBLY DESIGNED TO
FACILITATE CREATION OF NEW EDUCATIONAL BODIES WHILE GUARANTEEING TO
SMALL SCHOOL DISTRICTS THAT THEY WILL NOT BE ENTIRELY SWALLOWED UP BY A
LARGE PARTNER.  THE SMALL DISTRICTS ARE FREE TO AVOID ALLIANCE WITH A
HIGHLY POPULATED NEIGHBOR, IF THEY PREFER TO LINK WITH ENOUGH OTHERS OF
THEIR OWN SIZE TO PROVIDE A VIABLE BASE FOR A JUNIOR COLLEGE.  AT THE
SAME TIME, A VERY LARGE SCHOOL DISTRICT IS PROBABLY CAPABLE OF FORMING
A JUNIOR COLLEGE OF ITS OWN IF IT PREFERS NOT TO CONSOLIDATE, ON THE
TERMS SET BY STATUTE, WITH SMALLER NEIGHBORS.  ON THE OTHER HAND, LARGE
AND SMALL DSITRICT MAY WORK TOGETHER IF THEY FIND THIS THE MOST
BENEFICIAL ARRANGEMENT.  /2/  THE PARTICIPATION, AS HERE, OF SEVEN
SMALLER AND ONE LARGER SCHOOL DISTRICT IN THE JOINT FORMATION OF A
JUNIOR COLLEGE DISTRICT, REPRESENTS A PRAGMATIC CHOICE BY ALL CONCERNED
FROM AMONG A NUMBER OF POSSIBLE COURSES OF ACTION. 

I FIND IT BIZARRE TO CONCLUDE THAT SUCH A VOLUNTARY ARRANGEMENT
EFFECTS AN UNCONSTITUTIONAL "DILUTION" OF THE VOTES OF RESIDENTS OF THE
LARGEST SCHOOL DISTRICT.  WHEN THE COURT, IN REYNOLDS, REJECTED A
PROPOSED ANALOGY BETWEEN STATE LEGISLATURES AND THE FEDERAL CONGRESS,
IT RELIED HEAVILY ON THE FACT THAT STATE LEGISLATIVE DISTRICTS "ARE
MERELY INVOLUNTARY POLITICAL UNITS OF THE STATE CREATED BY STATUTE TO
AID IN THE ADMINISTRATION OF STATE GOVERNMENT."  377 U.S., AT 548.  IN
CONTRAST, THE NATIONAL GOVERNMENT WAS CREATED BY THE UNION OF "A GROUP
OF FORMERLY INDEPENDENT STATES."  THE SYSTEM OF REPRESENTATION IN
CONGRESS WAS "CONCEIVED OUT OF COMPROMISE AND CONCESSION" BETWEEN THE
LARGER AND SMALLER STATES.  ID., AT 574.  THE SYSTEM STRUCK DOWN TODAY
SHARES MUCH OF THIS SMAE CHARACTER OF VOLUNTARY COMPROMISE.  IT IS TRUE
THAT THE ANALOGY WOULD BE EVEN CLOSER IF THE LEGISLATURE HAD LEFT THE
SCHOOL DISTRICTS FREE TO NEGOTIATE THEIR OWN APPORTIONMENT TERMS,
RATHER THAN IMPOSING A UNIFORM SCALE; BUT AS I READ THE COURT'S OPINION
TODAY, IT WOULD STRIKE DOWN THE APPORTIONMENT IN THIS CASE EVEN IF THE
TERMS HAD RESULTED FROM AN ENTIRELY FREE AGREEMENT AMONG THE EIGHT
SCHOOL DISTRICTS.  INSISTENCE UPON A SIMPLISTIC MATHEMATICAL FORMULA AS
THE MEASURE OF COMPLIANCE WITH THE EQUAL PROTECTION CLAUSE IN CASES
INVOLVING THE ELECTORAL PROCESS HAS RESULTED IN THIS INSTANCE IN A
TOTAL DISREGARD OF THE SALUTARY PURPOSES UNDERLYING THE STATUTORY
SCHEME. 

  III 

FINALLY, I FIND PARTICULARLY PERPLEXING THE PORTION OF THE COURT'S
OPINION EXPLAINING WHY THE APPORTIONMENT INVOLVED IN THIS CASE DOES NOT
MEASURE UP EVEN UNDER THE "ONE MAN, ONE VOTE" DOGMA.  THE COURT HOLDS
THAT VOTERS OF THE KANSAS CITY SCHOOL DISTRICT, WHO ELECT 50% OF THE
TRUSTEES, ARE DENIED EQUAL PROTECTION OF THE LAWS BECAUSE THAT DISTRICT
CONTAINS ABOUT 60% OF THE SCHOOL ENUMERATION.  THIS IS SO BECAUSE THE
STATUTORY FORMULA EMBODIES A "BUILT-IN DISCRIMINATION AGAINST VOTERS IN
LARGE DISTRICTS."  ANTE, AT 57.  THE COURT SEEMS TO SUGGEST THAT THE
SAME DISCREPANCY AMONG DISTRICTS MIGHT PASS MUSTER IF IT COULD BE SHOWN
TO BE MATHEMATICALLY UNAVOIDABLE IN THE APPORTIONMENT OF THE SMALL
NUMBER OF TRUSTEES AMONG THE COMPONENT DISTRICTS; BUT THE DISCREPANCY
IS NOT PERMISSIBLE WHERE IT SIMPLY REFLECTS THE LEGISLATURE'S CHOICE OF
A MEANS TO FOSTER A LEGITIMATE STATE GOAL.  THIS REASONING SEEMS HARD
TO FOLLOW AND ALSO DISTURBING ON TWO SCORES. 

FIRST, TO APPLY THE RULE WITH SUCH RIGOR TO LOCAL GOVERNMENTAL
UNITS, ESPECIALLY SINGE-FUNCTION UNITS, IS TO DISREGARD THE
CHARACTERISTICS THAT DISTINGUISH SUCH UNITS FROM STATE LEGISLATURES. 
AS I NOTED IN MY DISSENT IN AVERY, 390 U.S., AT 488-490, THERE IS A
MUCH SMALLER DANGER OF ABUSE THROUGH MALAPPORTIONMENT IN THE CASE OF
LOCAL UNITS BECAUSE THERE EXIST AVENUES OF POLITICAL REDRESS THAT ARE
NOT SIMILARLY AVAILABLE TO CORRECT MALAPPORTIONMENT OF STATE
LEGISLATURES.  FURTHER, AS NOTED ABOVE, THE GREATER DIVERSITY OF
FUNCTIONS PERFORMED BY LOCAL GOVERNMENTAL UNITS CREATES A GREATER NEED
FOR FLEXIBILITY OF THEIR STRUCTURE.  IF THESE CONSIDERATIONS ARE
INADEQUATE TO STAVE OFF THE EXTENSION OF THE REYNOLDS RULE TO UNITS OF
LOCAL GOVERNMENT, THEY AT LEAST PROVIDE A PERSUASIVE RATIONALE FOR
APPLYING THAT RULE SO AS TO ALLOW LOCAL GOVERNMENTS MUCH MORE PLAY IN
THE JOINTS. 

SUCH AN APPROACH IS NOT FORECLOSED BY THE PREVIOUS CASES.  IN
REYNOLDS, 377 U.S., AT 577-581, THE COURT CATALOGUED A NUMBER OF
CONSIDERATIONS INDICATING THAT "(SOMEWHAT MORE FLEXIBILITY" MIGHT BE
PERMISSIBLE IN STATE LEGISLATIVE APPORTIONMENT THAT IN CONGRESSIONAL
DISTRICTING.  COMPARE SWANN V. ADAMS, 385 U.S. 440 (1967), WITH
KIRKPATRICK V. PREISLER, 394 U.S. 526 (1969), AND WELLS V. ROCKEFELLER,
394 U.S. 542 (1969).  THE NEED FOR MORE FLEXIBILITY BECOMES GREATER AS
WE PROCEED DOWN THE SPECTRUM FROM THE STATE LEGISLATURE TO THE SINGLE
PURPOSE LOCAL ENTITY. 

THE DISPARITIES OF REPRESENTATION IN AVERY WERE OF AN ENTIRELY
DIFFERENT ORDER FROM THOSE HERE.  IN THAT CASE, EACH OF THE FOUR
DISTRICTS ELECTED ONE COMMISSIONER TO THE COMISSIONERS COURT, DESPITE
THE FACT THAT THE POPULATION OF ONE DISTRICT WAS 67,906, WHILE THOSE OF
THE REMAINING THREE WERE 852, 414, AND 828.  I THINK THAT THE AVERY
RULE, BORN IN AN EXTREME CASE, IS BEING APPLIED HERE WITH A RIGIDITY
THAT FINDS NO JUSTIFICATION IN THE CONSIDERATIONS THAT GAVE IT BIRTH. 
CF. WELLS V. ROCKEFELLER, 394 U.S., AT 553 (WHITE, J., DISSENTING).  IN
THIS CASE, THE DISPARITY OF REPRESENTATION IS RELATIVELY MINOR.  EVEN
MORE IMPORTANT, IT IS NOT AN UNEXPLAINED AND UNJUSTIFIED DEVIATION FROM
EQUALITY, SEE SWANN V. ADAMS, 385 U.S.,AT 553 (WHITE, J., ENLIGHTENED
STATE POLICY OF ENCOURAGING INDIVIDUAL SCHOOL DISTRICTS TO JOIN
TOGETHER TO EXPAND THE STATE'S PUBLIC JUNIOR COLLEGE FACILITIES. 

SECOND, THE COURT LEAVES UNEXPLORED THE PREMISES UNDERLYING ITS
CONCLUSION THAT THE APPORTIONMENT HERE DOES NOT ACHIEVE EQUALITY, "AS
FAR AS PRACTICABLE."  ANTE, AT 57.  MISSOURI IF FORBIDDEN TO USE THE
STATUTORY FORMULA EMPLOYED IN THIS CASE BECAUSE THE PERCENTAGE
CATEGORIES IT CREATES WILL, IN PARTICULAR INSTANCES, ONLY APPROXIMATE
EQUALITY, AND BECAUSE WHATEVER DISCREPANCY EXISTS WILL ALWAYS FAVOR
RESIDENTS OF THE SMALLER DISTRICTS.  THE COURT DOES NOT SUGGEST HOW A
FORMULA COULD BE DEVISED THAT WOULD PROVIDE A GENERAL RULE FOR
APPLICATION TO ALL THE VARIOUS JUNIOR COLLEGE DISTRICTS BUT WOULD NOT
SHARE THESE ALLEGED FAULTS.  IF A LARGE DISTRICT FALLING WITHIN A GIVEN
PERCENTAGE RANGE WERE ALLOCATED THE NUMBER OF TRUSTEES CORRESPONDING TO
THE TOP, RATHER THAN THE BOTTOM, OF THE RANGE, THAT WOULD ALSO PRODUCE,
ON THE COURT'S THEORY, A "BUILT-IN DISCRIMINATION" AGAINST VOTERS IN
SMALL DISTRICTS. 

THUS, THE RESULT OF THE COURT'S HOLDING MAY BE THAT MISSOURI IS
FORBIDDEN TO ESTABLISH ANY FORMULA OF GENERAL APPLICATION FOR
APPORTIONMENT OF TRUSTEES, BUT MUST INSTEAD PROVIDE FOR THE
IMPROVISATION OF AN INDIVIDUAL APPORTIONMENT SCHEME FOR EACH JUNIOR
COLLEGE DISTRICT AFTER THE CONTOURS OF THE DISTRICT HAVE BEEN SETTLED. 
BUT SURELY A STATE COULD REASONABLY DETERMINE THAT THE MECHANICS OF
OPERATING SUCH A SYSTEM WOULD BE SO UNDULY BURDENSOME THAT IT WOULD BE
BETTER TO APPORTION ACCORDING TO A STATEWIDE FORMULA.  WOULD NOT SUCH
CONSIDERATION JUSTIFY A CONCLUSION THAT THE STATEWIDE FORMULA ACHIEVES
EQUALITY "AS FAR AS PRACTICABLE"?  WHILE THE COURT DOES NOT DISCUSS THE
PROBLEM, ITS INVALIDATION OF THIS STATUTORY FORMULA SEEMS TO BE BASED
ON THE PREMISE THAT SUCH PRACTICAL CONSIDERATIONS, LIKE A STATE'S
DESIRE TO ENCOURAGE COOPERATION AMONG DISTRICTS, ARE CONSTITUTIONALLY
INADEQUATE TO JUSTIFY ANY DIVERGENCE FROM VOTING "EQUALITY." 

THE COURT DOES NOT, HOWEVER, SPELL OUT ANY RATIONALE FOR CONCLUDING
THAT SUCH MATTERS OF ADMINISTRATIVE CONVENIENCE DESERVE NO WEIGHT IN
DETERMINING WHAT IS "PRACTICABLE."  THIS IS ESPECIALLY INCONGRUOUS IN
LIGHT OF THE COURT'S UNEXPLAINED CONCLUSION THAT DEFERENCE CAN BE GIVEN
TO LEGISLATIVE DETERMINATIONS THAT THE BOARDS SHOULD HAVE A SMALL
NUMBER OF TRUSTEES AND THAT THE TRUSTEES IN SOME INSTANCES SHOULD
REPRESENT COMPONENT SCHOOL DISTRICTS.  WHY DOES THE COURT NOT REQUIRE
THAT THE NUMBER OF TRUSTEES BE INCREASED FROM SIX, IN ORDER TO REDUCE
THE ROUGHNESS WITH WHICH EQUALITY IS APPROXIMATED?  WOULD A THREE-MAN
BOARD BE UNCONSTITUTIONALLY SMALL?  WHY IS THE COURT WILLING TO ACCEPT
INEQUALITY THAT DERIVES FROM A DESIRE TO GIVE REPRESENTATION TO
COMPONENT SCHOOL DISTRICTS, WHEN SIMILAR INEQUALITY IN STATE
LEGISLATIVE DISTRICTING COULD PROBABLY NOT BE JUSTIFIED BY A DESIRE TO
GIVE REPRESENTATION TO COUNTIES?  CF. REYNOLDS V. SIMS, 377 U.S.,AT 579
581; SWANN V. ADAMS, 385 U.S.,AT 444.  IF EQUALITY CANNOT BE ACHIEVED
WHEN REPRESENTATION IS BY COMPONENT DISTRICTS, WHY DOES THE "AS FAR AS
PRACTICABLE" STANDARD NOT REQUIRE AT-LARGE ELECTION OF TRUSTEES?  IS
THERE SOMETHING ABOUT THESE CONSIDERATIONS THAT GIVES THEM A STATUS
UNDER THE EQUAL PROTECTION CLAUSE THAT IS NOT POSSESSED BY A
LEGISLATIVE DESIRE TO APPORTION BY A FORMULA OF STATEWIDE APPLICATION? 

IT SEEMS TO ME THAT BENEATH THE SURFACE OF THE COURT'S OPINION LIE
UNSPOKEN ANSWERS TO THESE AND OTHER SIMILAR QUESTIONS, QUESTIONS THAT I
CAN CHARACTERIZE ONLY AS MATTERS OF POLITICAL JUDGMENT.  THE COURT'S
ADOPTION OF A RIGID, MATHEMATICAL RULE TURNS OUT NOT TO HAVE SAVED IT
FROM HAVING TO BALANCE AND JUDGE POLITICAL CONSIDERATIONS, CONCLUDING
THAT ONE DOES MERIT SOME WEIGHT IN AN APPORTIONMENT SCHEME WHILE
ANOTHER DOES NOT.  THE FACT THAT THE COURTS, RATHER THAN THE
LEGISLATURES, NOW ARE THE FINAL ARBITERS OF SUCH MATTERS WILL CONTINUE,
I FEAR, AFTER THE PRESENT DECISION TO BE THE INEVITABLE CONSEQUENCE OF
THE SHALLOW APPROACH TO THE EQUAL PROTECTION CLAUSE REPRESENTED BY THE
"ONE MAN, ONE VOTE" THEORY.  THE COURT COULD AT LEAST LESSEN THE
DISRUPTIVE IMPACT OF THAT APPROACH AT THE LOCAL LEVEL BY APPROVING THIS
RELATIVELY MINOR DIVERGENCE FROM STRICT EQUALITY ON THE GROUND THAT THE
LEGISLATURE COULD REASONABLY HAVE CONCLUDED THAT IT WAS NECESSARY TO
ACCOMPLISH LEGITIMATE STATE INTERESTS. 

I WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF MISSOURI.  WHAT
OUR COURT HAS DONE TODAY SEEMS TO ME TO RUN FAR AFIELD OF THE VALUES
EMBODIED IN THE SCHEME OF GOVERNMENT ORDAINED BY THE CONSTITUTION. 

/1/  COUNSEL FOR APPELLEES INFORMED THE COURT AT ORAL ARGUMENT THAT
PRIOR TO THE PASSAGE OF THIS STATUTE, WHEN THE LAW MERELY AUTHORIZED
EACH SCHOOL DISTRICT IN THE STATE TO ESTABLISH ITS OWN JUNIOR COLLEGE,
THERE WERE ONLY SEVEN SUCH JUNIOR COLLEGES, WITH A TOTAL ENROLLMENT OF
APPROXIMATELY 5,000 STUDENTS.  TODAY THERE ARE 12 JUNIOR COLLEGE
DISTRICTS, IN WHICH NEARLY 120 INDIVIDUAL SCHOOL DISTRICTS PARTICIPATE,
WITH A TOTAL ENROLLMENT OF OVER 30,000 

/2/  AT THE TIME THIS SUIT WAS FILED, NINE JUNIOR COLLEGE DISTRICTS
HAD BEEN FORMED PURSUANT TO THE STATUTORY PROCEDURES.  OF THESE, THREE
DID NOT CONTAIN A COMPONENT DISTRICT LARGE ENOUGH TO BRING INTO PLAY
THE FRACTIONAL FORMULA; THE REMAINING SIX DID CONTAIN SUCH A DISTRICT. 

MR. CHIEF JUSTICE BURGER, DISSENTING. 

I CONCUR FULLY IN THE OPINION OF MR. JUSTICE HARLAN.  I ADD THIS
COMMENT TO EMPHASIZE THE SUBJECTIVE QUALITY OF A DOCTRINE OF
CONSTITUTIONAL LAW THAT HAS AS ITS PRIMARY STANDARD "A GENERAL RULE,
(THAT) WHENEVER A STATE OR LOCAL GOVERNMENT DECIDES TO SELECT PERSONS
BY POPULAR ELECTION . . . ," THE CONSTITUTION COMMANDS THAT EACH
QUALIFIED VOTER MUST BE GIVEN A VOTE WHICH IS EQUALLY WEIGHTED WITH THE
VOTES CAST BY ALL OTHER ELECTORS. 

THE FAILURE TO PROVIDE GUIDELINES FOR DETERMINING WHEN THE COURT'S
"GENERAL RULE" IS TO BE APPLIED IS EXACERBATED WHEN THE COURT IMPLIES
THAT THE STRINGENT STANDARDS OF "MATHEMATICAL EXACTITUDE" THAT ARE
CONTROLLING IN APPORTIONMENT OF FEDERAL CONGRESSIONAL DISTRICTS NEED
NOT BE APPLIED TO SMALLER SPECIALIZED DISTRICTS SUCH AS THE JUNIOR
COLLEGE DISTRICT IN THIS CASE.  THIS GIVES ADDED RELEVANCE TO MR.
JUSTICE HARLAN'S OBSERVATION THAT "(THE NEED FOR MORE FLEXIBILITY
BECOMES GREATER AS WE PROCEED DOWN THE SPECTRUM FROM THE STATE
LEGISLATURE TO THE SINGLE-PURPOSE LOCAL ENTITY."  ANTE, AT 67.  YET THE
COURT HAS GIVEN ALMOST NO INDICATION OF WHICH NONPOPULATION INTERESTS
MAY OR MAY NOT LEGITIMATELY BE CONSIDERED BY A LEGISLATURE IN DEVISING
A CONSTITUTIONAL APPORTIONMENT SCHEME FOR A LOCAL, SPECIALIZED UNIT OF
GOVERNMENT. 

ULTIMATELY, ONLY THIS COURT CAN FINALLY APPLY THESE "GENERAL RULES"
BUT IN THE INTERIM ALL OTHER JUDGES MUST SPECULATE AS BEST THEY CAN
WHEN AND HOW TO APPLY THEM.  WITH ALL DEFERENCE I SUGGEST THE COURT'S
OPINION TODAY FAILS TO GIVE ANY MEANINGFUL GUIDELINES. 

IRVING ACHTENBERG ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLANTS. 

WILLIAM J. BURRELL AGRUED THE CAUSE FOR APPELLEES JUNIOR COLLEGE
DISTRICT OF METROPOLITAN KANSAS CITY ET AL. WITH HIM ON THE BRIEF WERE
CLARENCE H. DICUS AND HEYWOOD H. DAVIS.  LOUIS C. DEFEO, JR., ASSISTANT
ATTORNY GENERAL OF MISSOURI, ARGUED THE CAUSE FOR APPELLEE THE ATTORNEY
GENERAL OF MISSOURI.  WITH HIM ON THE BRIEF WAS JOHN C. DANFORTH,
ATTORNEY GENERAL, PRO SE. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL LEONARD, AND
FRANCIX X. BEYTAGH, JR., FILED A BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, PRO SE, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND DANIEL M. COHEN,
ASSISTANT ATTORNEY GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL OF
NEW YORK AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :
























COLONNADE CORP. V. UNITED STATES, 397 U.S. 72 


       COLONNADE CATERING CORP. V. UNITED STATES

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 108.  ARGUED JANUARY 15, 1970-- DECIDED FEBRUARY 25,

           1970 


CONGRESS, WHICH HAD BROAD AUTHORITY TO FASHION STANDARDS OF
REASONABLENESS FOR SEARCHES AND SEIZURES RESPECTING THE LIQUOR
INDUSTRY, HAS MADE IT AN OFFENSE UNDER 26 U.S.C. 7342 FOR A LIQUOR
LICENSEE TO REFUSE ADMISSIONS TO A FEDERAL INSPECTOR, A SANCTION THAT
PRECLUDES FORCIBLE ENTIRES WITHOUT A WARRANT.  PP. 72-77. 

410 F.2D 197, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A LECENSEE IN NEW YORK AUTHORIZED TO SERVE ALCOHOLIC
BEVERAGES AND ALSO THE HOLDER OF A FEDERAL RETAIL LIQUOR DEALER'S
OCCUPATIONAL TAX STAMP, 26 U.S.C. 5121(A), BROUGHT THIS SUIT TO OBTAIN
THE RETURN OF SEIZED LIQUOR AND TO SUPPRESS IT AS EVIDENCE.  THE
DISTRICT COURT GRANTED THE RELIEF.  THE COURT OF APPEALS REVERSED.  410
F.2D 197.  THE CASE IS HERE ON A PETITION FOR WRIT OF CERTIORARI WHICH
WE GRANTED, 396 U.S. 814, TO REVIEW THE DECISION IN LIGHT OF CAMARA V.
MUNICIPAL COURT, 387 U.S. 523, AND SEE V. CITY OF SEATTLE, 387 U.S.
541. 

PETITIONER RUNS A CATERING ESTABLISHMENT.  A FEDERAL AGENT, A MEMBER
OF THE ALCOHOL AND TOBACCO TAX DIVISION OF THE INTERNAL REVENUE
SERVICE, WAS A GUEST AT A PARTY ON PETITIONER'S PREMISES AND NOTED A
POSSIBLE VIOLATION OF THE FEDERAL EXCISE TAX LAW.  WHEN FEDERAL AGENTS
LATER VISITED THE PLACE, ANOTHER PARTY WAS IN PROGRESS.  THEY NOTICES
THAT LIQUOR WAS BEING SERVED.  WITHOUT THE MANAGER'S CONSENT, THEY
INSPECTED THE CELLAR.  THEN THEY ASKED TO MANAGER TO OPEN THE LOCKED
LIQUOR STOREROOM.  HE SAID THAT THE ONLY PERSON AUTHORIZED TO OPEN THAT
ROOM WAS ONE ROZZO, PETITIONER'S PRESIDENT, WHO WAS NOT ON THE
PREMISES.  LATER ROZZO ARRIVED AND REFUSED TO OPEN THE STOREROOM.  HE
ASKED IF THE AGENTS HAD A SEARCH WARRANT AND THEY ANSWERED THAT THEY
DID NOT NEED ONE.  WHEN ROZZO CONTINUED TO REFUSE TO UNLOCK THE ROOM,
AN AGENT BROKE THE LOCK AND ENTERED.  THEN THEY REMOVED THE BOTTLES OF
LIQUOR NOW IN CONTROVERSY WHICH THEY APPARENTLY SUSPECTED OF BEING
REFILLED CONTRARY TO THE COMMAND OF 26 U.S.C. 5301(C). 

IT IS PROVIDED IN 26 U.S.C. 5146(B) /1/  AND IN 26 U.S.C. 7606 /2/
THAT THE SECRETARY OF THE TREASURY OR HIS DELEGATE HAS BROAD AUTHORITY
TO ENTER AND INSPECT THE PREMISES OF RETIAL DEALERS IN LIQUORS.  /3/
AND IN CASE OF THE REFUSAL OF A DEALER TO PERMIT THE INSPECTION, IT IS
PROVIDED IN 26 U.S.C. 7342: 

     "ANY OWNER OF ANY BUILDING OR PLACE, OR PERSON HAVING THE

  AGENCY OR SUPERINTENDENCE OF THE SAME, WHO REFUSES TO ADMIT ANY

  OFFICER OR EMPLOYEE OF THE TREASURY DEPARTMENT ACTING UNDER THE

  AUTHORITY OF SECTION 7606 (RELATING TO ENTRY OF PREMISES FOR

  EXAMINATION OF TAXABLE ARTICLES) OR REFUSES TO PERMIT HIM TO

  EXAMINE SUCH ARTICLE OR ARTICLES, SHALL, FOR EVERY SUCH REFUSAL,

  FORFEIT $500." 

THE QUESTION IS WHETHER THE IMPOSITION OF A FINE FOR REFUSAL TO
PERMIT ENTRY-- WITH THE ATTENDANT CONSEQUENCES THAT VIOLATION OF
INSPECTION LAWS MAY HAVE IN THIS CLOSELY REGULATED INDUSTRY-- IS UNDER
THIS STATUTORY SCHEME THE EXCLUSIVE SANCTION, ABSENT A WARRANT TO BREAK
AND ENTER. 

IN FRANK V. MARYLAND, 359 U.S. 360, 366-367, A CASE INVOLVING AN
INSPECTION UNDER A MUNICIPAL CODE, WE SAID: 

     "(THE) INSPECTOR HAS NO POWER TO FORCE ENTRY AND DID NOT

  ATTEMPT IT.  A FINE IS IMPOSED FOR RESISTANCE, BUT OFFICIALS ARE

  NOT AUTHORIZED TO BREAK PAST THE UNWILLING OCCUPANT." 

FRANK V. MARYLAND WAS OVERRULED IN CAMARA V. MUNICIPAL COURT, SUPRA,
INSOFAR AS IT PERMITTED WARRANTLESS SEARCHES OR INSPECTIONS UNDER
MUNICIPAL FIRE, HEALTH, AND HOUSING CODES.  THE DICTUM THAT THE
PROVISION FOR A FINE ON REFUSAL TO ALLOW INSPECTION MADE THE USE OF
FORCE IMPORPER WHEN THERE WAS NO WARRANT WAS NOT DISTURBED; AND THE
QUESTION IS WHETHER THAT DICTUM CONTAINS THE CONTROLLING PRINCIPLE /4/
FOR THIS CASE. 

THE GOVERNMENT, EMPHASIZING THAT THE FOURTH AMENDMENT BANS ONLY
"UNREASONABLE SEARCHES AND SEIZURES,"  /5/  RELIES HEAVILY ON THE LONG
HISTORY OF THE REGULATION OF THE LIQUOR INDUSTRY DURING PRE-FOURTH
AMENDMENT DAYS, FIRST IN ENGLAND, AND LATER IN THE AMERICAN COLONIES. 
IT IS POINTED OUT, OFR EXAMPLE, THAT IN 1660 THE PRECURSOR OF MODERN
DAY LIQUOR LESIGLATION WAS ENACTED IN ENGLAND /6/ WHICH ALLOWED
COMMISSIONERS TO ENTER, ON DEMAND, BREWING HOUSES AT ALL TIMES FOR
INSPECTION.  MASSACHUSETTS HAD A SIMILAR LAW IN 1692.  /7/  AND IN
1791, THE YEAR IN WHICH THE FOURTH AMENDMENT WAS RATIFIED, CONGRESS
IMPOSED AN EXCISE TAX ON IMPORTED DISTILLED SPIRITS AND ON LIQUOR
DISTILLED HERE, /8/  UNDER WHICH LAW FEDERAL OFFICERS HAD BROAD POWERS
TO INSPECT DISTILLING PREMISES AND THE PREMISES OF THE IMPORTER /9/
WITHOUT A WARRANT.  FROM THESE AND LATER LAWS AND REGULATIONS GOVERNING
THE LIQUOR INDUSTRY, IT IS ARGUED THAT CONGRESS HAS BEEN MOST
SOLICITOUS IN PROTECTING THE REVENUE AGAINST VARIOUS TYPES OF FRAUD AND
TO THAT END HAS REPEATEDLY GRANTED FEDERAL AGENTS POWER TO MAKE
WARRENTLESS SEARCHES AND SEIZURES OF ARTICLES UNDER THE LIQUOR LAWS. 

THE COURT RECOGNIZED THE SPECIAL TREATMENT OF INSPECTION LAWS OF
THIS KIND IN BOYD V. UNITED STATES, 116 U.S. 616, 624: 

     "(IN THE CASE OF EXCISABLE OR DUTIABLE ARTICLES, THE
GOVERNMENT

HAS AN INTEREST IN THEM FOR THE PAYMENT OF THE DUTIES THEREON,

  AND UNTIL SUCH DUTIES ARE PAID HAS A RIGHT TO KEEP THEM UNDER

  OBSERVATION, OR TO PURSUE AND DRAG THEM FROM CONCEALMENT. 

AND IT ADDED: 

     "THE SEIZURE OF STOLEN GOODS IS AUTHORIZED BY THE COMMON LAW;

  AND THE SEIZURE OF GOODS FORFEITED FOR A BREACH OF THE REVENUE

  LAWS, OR CONCEALED TO AVOID THE DUTIES PAYABLE ON THEM, HAS BEEN

  AUTHORIZED BY ENGLISH STATUTES FOR AT LEAST TWO CNETURIES PAST;

  AND THE LIKE SEIZURES HAVE BEEN AUTHORIZED BY OUR OWN REVENUE

  ACTS FROM THE COMMENCEMENT OF THE GOVERNMENT.  THE FIRST STATUTE

  PASSED BY CONGRESS TO REGULATE THE COLLECTION OF DUTIES, THE ACT

  OF JULY 31, 1789, 1 STAT. 29, 43, CONTAINS PROVISIONS TO THIS

  EFFECT.  AS THIS ACT WAS PASSED BY THE SAME CONGRESS WHICH

  PROPOSED FOR ADOPTION OF THE ORIGINAL AMENDMENTS TO THE

  CONSTITUTION, IT IS CLEAR THATTHE MEMBERS OF THAT BODY DID NOT

  REGARD SEARCHES AND SEIZURES OF THIS KIND AS 'UNREASONABLE,' AND

  THEY ARE NOT EMBRACED WITHIN THE PROHIBITION OF THE AMENDMENT. 

  ID., AT 623. 

WE AGREE THAT CONGRESS HAS BROAD POWER TO DESIGN SUCH POWERS OF
INSPECTION UNDER THE LIQUOR LAWS AS IT DEEMS NECESSARY TO MEET THE
EVILS AT HAND.  THE GENERAL RULE LAID DOWN IN SEE V. CITY OF SEATTLE,
SUPRA, AT 545-- "THAT ADMINISTRATIVE ENTRY, WITHOUT CONSENT, UPON THE
PORTIONS OF COMMERCIAL PREMISES WHICH ARE NOT OPEN TO THE PUBLIC MAY
ONLY BE COMPELLED THROUGH PROSECUTION OR PHYSICAL FORCE WITHIN THE
FRAMEWORK OF A WARRANT PROCEDURE"-- IS THEREFORE NOT APPLICABLE HERE. 
IN SEE, WE RESERVED DECISION ON THE PROBLEMS OF "LICENSING PROGRAMS"
REQUIRING INSPECTION, SAYING THEY CAN BE RESOLVED "ON A CASE-BY-CASE
BASIS UNDER THE GENERAL FOURTH AMENDMENT STANDARD OF REASONABLENESS." 
ID., AT 546. 

WHERE CONGRESS HAS AUTHORIZED INSPECTION BUT MADE NO RULES GOVERNING
THE PROCEDURE THAT INSPECTORS MUST FOLLOW, THE FOURTH AMENDMENT AND ITS
VARIOUS RESTRICTIVE RULES APPLY.  WE SAID IN THE SEE CASE: 

     "THE BUSINESSMAN, LIKE THE OCCUPANT OF A RESIDENCE, HAS A

  CONSTITUTIONAL RIGHT TO GO ABOUT HIS BUSINESS FREE FROM

  UNREASONABLE OFFICIAL ENTIRES UPON HIS PRIVATE COMMERCIAL

  PROPERTY.  THE BUSINESSMAN, TOO, HAS THAT RIGHT PLACED IN

  JEOPARDY IF THE DECISION TO ENTER AND INSPECT FOR VIOLATION OF

REGULATORY LAWS CAN BE MADE AND ENFORCED BY THE INSPECTOR IN THE

  FIELD WITHOUT OFFICIAL AUTHORITY EVIDENCED BY A WARRANT."  ID.,

  AT 543. 

WHAT WAS SAID IN SEE REFLECTS THIS NATION'S TRADITIONS THAT ARE
STRONGLY OPPOSED TO USING FORCE WITHOUT DEFINITE AUTHORITY TO BREAK
DOWN DOORS.  WE DEAL HERE WITH THE LIQUOR INDUSTRY LONG SUBJECT TO
CLOSE SUPERVISION AND INSPECTION.  AS RESPECTS THAT INDUSTYR, AND ITS
VARIOUS BRANCHES INCLUDING RETAILERS, CONGRESS HAS BROAD AUTHORITY TO
FASHION STANDARDS OF REASONABLENESS FOR SEARCHES AND SEIZURES.  UNDER
THE EXISTING STATUTES, CONGRESS SELECTED A STANDARD THAT DOES NOT
INCLUDE FORCIBLE ENTIRES WITHOUT A WARRANT.  IT RESOLVED THE ISSUE, NOT
BY AUTHORIZING FORCIBLE, WARRANTLESS ENTIRES, BUT BY MAKING IT AN
OFFENSE FOR A LICENSEE TO REFUSE ADMISSION TO THE INSPECTOR. 

              REVERSED. 

/1/  26 U.S.C. 5146(B) PROVIDES: 

"THE SECRETARY OR HIS DELEGATE MAY ENTER DURING BUSINESS HOURS THE
PREMISES (INCLUDING PLACES OF STORAGE) OF ANY DEALER FOR THE PURPOSE OF
INSPECTING OR EXAMINING ANY RECORDS OR OTHER DOCUMENTS REQUIRED TO BE
KEPT BY SUCH DEALER UNDER THIS CHAPTER OR REGULATIONS ISSUED PURSUANT
THERETO AND ANY DISTILLED SPIRITS, WINES, OR BEER KEPT OR STORED BY
SUCH DEALER ON SUCH PREMISES." 

/2/  26 U.S.C. 7606 PROVIDES: 

"(A) ENTRY DURING DAY. 

"THE SECRETARY OR HIS DELEGATE MAY ENTER, IN THE DAYTIME, ANY
BUILDING OR PLACE WHERE ANY ARTICLES OR OBJECTS SUBJECT TO TAX ARE
MADE, PRODUCED, OR KEPT, SO FAR AS IT MAY BE NECESSARY FOR THE PURPOSE
OF EXAMINING SAID ARTICLES OR OBJECTS. 

"(B) ENTRY AT NIGHT. 

"WHEN SUCH PREMISES ARE OPEN AT NIGHT, THE SECRETARY OR HIS DELEGATE
MAY ENTER THEM WHILE SO OPEN, IN THE PERFORMANCE OF HIS OFFICIAL
DUTIES." 

/3/  AS DEFINED IN 26 U.S.C. 5122(A). 

/4/  AND SEE UNITED STATES V. FRISCH, 140 F.2D 660, 662. 

/5/  THE FOURTH AMENDMENT READS AS FOLLOWS: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND THE PERSONS OR THINGS TO BE
SEIZED." 

/6/  12 CAR.  2, C. 23, SEC. 19. 

/7/  ACT OF JUNE 24, 1692, MASS. ACTS AND RESOLVES, VOL. 1, 1692
1714, P. 33, C. 5, SEC. 8. 

/8/  ACT OF MARCH 3, 1791, 1 STAT. 199. 

/9/ SECTION 29 OF THE ACT OF MARCH 3, 1791, 1 STAT. 206, PROVIDED: 

"THAT IS SHALL BE LAWFUL FOR THE OFFICERS OF INSPECTION OF EACH
SURVEY AT ALL TIMES IN THE DAYTIME UPON REQUEST, TO ENTER INTO ALL AND
EVERY THE HOUSES, STORE-HOUSES, WARE-HOUSES, BUILDINGS AND PLACES WHICH
SHALL HAVE BEEN (REGISTERED) IN MANNER AFORESAID, AND BY TASTING,
GAUGING OR OTHERWISE, TO TAKE AN ACCOUNT OF THE QUANTITY, KINDS AND
PROOFS OF THE SAID SPIRITS THEREIN CONTAINED; AND ALSO TO TAKE SAMPLES
THEREOF, PAYING FOR THE SAME THE USUAL PRICE." 

MR. CHIEF JUSTICE BURGER, WITH WHOM MR. JUSTICE BLACK AND MR.
JUSTICE STEWART JOIN, DISSENTING. 

I JOIN IN THE DISSENTING OPINION OF MR. JUSTICE BLACK; HOWEVER,
SINCE MY POSITION GOES SOMEWHAT BEYOND HIS DISCUSSION I ADD MY VIEWS
SEPARATELY. 

I ASSUME WE COULD ALL AGREE THAT THE SEARCH IN QUESTION MUST BE HELD
VALID, AND THE CONTRABAND DISCOVERED SUBJECT TO SEIZURE AND FORFEITURE,
UNLESS (A) IT IS "UNREASONABLE" UNDER THE CONSTITUTION OR (B) IT IS
PROHIBITED BY A STATUTE IMPOSING RESTRAINTS APART FROM THOSE IN THE
CONSTITUTION.  THE MAJORITY SEES NO CONSTITUTIONAL VIOLATION; I AGREE. 

THE CONTROLLING STATUTES SET OUT IN NOTES 1 AND 2 OF THE MAJORITY
OPINION AFFIRMATIVELY DEFINE THE CONDITIONS AND TIMES WHEN AGENTS MAY
ENTER PREMISES AND INSPECT.  UNDER 26 U.S.C. 5146(B) AGENTS MAY ENTER
TO INSPECT "ANY DISTILLED SPIRITS, WINES, OR BEER KEPT OR STORED BY
SUCH DEALER ON SUCH PREMISES."  THE TIME WHEN THIS MAY BE DONE IS FIXED
AS "DURING BUSINESS HOURS."  SECTION 7606 OF 26 U.S.C., SET FORTH IN
NOTE 2 OF THE MAJORITY OPINION, PROVIDES THAT AGENTS MAY ENTER ANY
BUILDING WHERE TAXALBE ARTICLES ARE KEPT, "SO FAR AS IT MAY BE
NECESSARY FOR THE PURPOSE OF EXAMINING SAID ARTICLES OR OBJECTS." 

THE GOVERNMENT AGENTS NEEDED NEITHER A WARRANT NOR THESE STATUTES TO
SECURE ENTRY TO THIS PLACE OF BUSINESS SINCE IT WAS AS OPEN AS ANY
BUSINESS ESTABLISHMENT THAT SEEKS TO SELL GOODS AND SERVICES TO THE
PUBLIC.  THE AGENTS NEED TO RELY ON THE STATUTES ONLY TO CARRY OUT
THEIR DUTY TO INSPECT AFTER ACCOMPLISHING ENTRY.  THIS WAS RECOGNIZED
IMPLICITLY BY CONGRESS IN LIMITING THE INSPECTION TO "BUSINESS HOURS"
AND DAYTIME.  CONGRESS WENT BEYOND MERE ENTRY; IT PROVIDED FOR
INSPECTION.  INSPECTION AUTHORIZATION WOULD BE MEANINGLESS IF THE
AGENTS COULD NOT OPEN LOCKERS, CABINETS, CLOSETS, AND STOREROOMS AND
INDEED PRY OPEN CASES OF LIQUOR TO SEE THE CONTENTS. 

SURELY CONGRESS WAS NOT UNAWARE THAT PURVEYORS OF LIQUOR DO NOT
LEAVE THEIR WARES OR STORES OR RESERVE SUPPLIES LYING CASUALLY ABOUT;
ON THE CONTRARY THEY KEEP SUPPLIES UNDER LOCK IN VARIOUS WAYS,
INCLUDING LOCKERS, CABINETS, CLOSETS, OR STOREROOMS; THIS PRACTICE IS
SO UNIVERSAL IT CAN BE JUDICIALLY NOTICED. 

HERE THE AGENTS ACTED EXPLICITLY UNDER THE STATUTES CONTAINING THE
LANGUAGE "SO FAR AS IT MAY BE NECESSARY"; THIS IS SIMPLE AND CLEAR AND
FOR ME IT IS PLAINLY BROAD ENOUGH TO PERMIT INSPECTION OF ALL SPIRITS
"KEPT OR STORED . . . ON SUCH PREMISES" WHETHER IN LOCKERS, CABINETS,
CLOSETS, OR STOREROOMS.  CONGRESS HAVING PRESCRIBED THIS AS A
REASONABLE MEANS OF ENFORCING THE INSPECTION NECESSARY TO TAX
COLLECTION, I SEE NO BASIS FOR ANY COURT TO SAY IT CANNOT BE DONE. 

THAT CONGRESS PROVIDED AN ADDED PENALTY FOR THOSE WHO REFUSE ACCESS
FOR INSPECTION IS IRRELEVANT.  WE CAN ASSUME THIS WAS TO ENCOURAGE
LICENSED PURVEYORS TO COMPLY PROMPTLY TO FACILITATE INSPECTIONS.  THE
MAJORITY VIEWS THE $500 FINE AS THE GOVERNMENT'S EXCLUSIVE REMEDY FOR
THE NON-COOPERATION OF THE TAWPAYER.  CONGRESS COULD HARDLY BE SO NAIVE
AS TO GIVE THE LICENSEE THE OPTION OT CHOOSE BETWEEN THE RISK OF A $500
FINE AGAINST THE CERTAIN DISCOVERY, IF HE IS IN VIOLATION, OF A LARGE
STORE OF LIQUOR SUBJECT TO FORFEITURE.  AT CURRENT PRICES $500 WOULD
REPRESENT FOUR OR FIVE CASES OF SPIRITS.  THE ALTERNATIVE OF SECURING A
WARRANT TOUCHES ON THE CONSTITUTIONAL ISSUES WHICH THE MAJORITY DOES
NOT RELY ON.  WE SHOULD NOTE, OF COURSE, THAT THE MAJORITY HOLDING
ELIMINATES ANY BASIS FOR A FORFEITURE OF THE CONTRABAND LIQUOR AND
LEAVES THE GOVERNMENT TO ANOTHER LAWSUIT TO COLLECT A $500 FINE. 
WITH DEFERENCE I SUBMIT THE MAJORITY HAS NEEDLESSLY COMPLICATED A
RELATIVELY SIMPLE ISSUE OF STATUTORY CONSTRUCTION WITH UNDERTONES OF
CONSTITUTIONALLY LIMITED SEARCHES.  THE WORDS "SO FAR AS IT MAY BE
NECESSARY" ARE QUITE PLAIN AND WE ALL AGREE NO ISSUE OF OCNSTITUTIONAL
DIMENSIONS IS PRESENTED. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

PETITIONER BROUGHT PROCEEDINGS UNDER THE FEDERAL RULES OF CRIMINAL
PROCEDURE FOR THE RETURN OF LIQUOR SEIZED BY FEDERAL AGENTS.  ONE OF
THOSE RULES PROVIDES THAT "(A) PERSON AGGRIEVE BY AN UNLAWFUL SEARCH
AND SEIZURE MAY MOVE THE DISTRICT COURT . . . FOR THE RETURN OF THE
PROPERTY . . . SO OBTAINED ON THE GROUND THAT (1) THE PROPERTY WAS
ILLEGALLY SEIZED WITHOUT WARRANT . . . ."  FED. RULE.  CRIM.  PROC.
41(E).  AS I READ THAT PROVISION, IT REQUIRES PETITIONER TO SHOW THAT
THE SEIZURE IN THIS CASE WAS ILLEGAL, EITHER BECAUSE IT VIOLATED THE
FOURTH AMENDMENT, OR BECAUSE IT WAS IN VIOLATION OF SOME LAW PASSED BY
CONGRESS.  IN MY OPINION NEITHER REQUIREMENT HAS BEEN MET AND THEREFORE
PETITIONER IS NOT ENTITLED TO A RETURN OF THE SEIZED LIQUOR. 

THERE CAN BE NO DOUBT THAT PLACED THAT SELL LIQUOR TO THE PUBLIC
HAVE HISTORICALLY BEEN SUBJECTED TO STRICT GOVERNMENTAL SCRUTINY FOR
MANY CENTURIES BOTH IN THIS COUNTRY AND IN ENGLAND.  THE COURT SETS OUT
A LITTLE OF THE HISTORY OF THAT REGULATION IN ITS OPINION.  I THEREFORE
AGREE THAT THERE IS NOTHING UNREASONABLE, AS THAT TERM IS USED IN THE
FOURTH AMENDMENT, IN PERMITTING OFFICERS TO GO INTO AN ESTABLISHMENT
THAT PROVIDES ALCOHOLIC BEVERAGES TO THE PUBLIC, AND UPON FINDING
SOMETHING THAT INDICATES A FLAGRANT VIOLATION OF THE LAW TO PURSUE
THEIR EXAMINATION TO SEE WHETHER A VIOLATION IS ACTUALLY OCCURRING. 
THE OFFICERS DID JUST THAT IN THIS CASE, AND I SEE NO REASON ON EARTH
WHY ANY MAN SHOULD HOLD THAT CONDUCT UNREASONABLE.  THIS COURT
CERTAINLY SHOULD NOT PREVENT FAITHFUL OFFICERS, WHEN THEY SEE THE LAW
BEING VIOLATED PRACTICALLY BEFORE THEIR VERY EYES, FROM TAKING THE
STEPS NECESSARY TO STOP AND PROVE THAT VIOLATION. 

THE MAJORITY, FAR FROM FINDING THIS SEARCH UNREASONABLE AND
THEREFORE ILLEGAL UNDER THE FOURTH AMENDMENT, HOLDS THAT IT WAS NOT
AUTHORIZED BY 26 U.S.C. 5146(B), 7606(A), /1/  AND THAT THEREFORE THE
LIQUOR MUST BE RETURNED.  WHILE THESE STATUTES DO NOT IN EXPRESS TERMS
AUTHORIZE FORCIBLE BREAKING AND ENTERING TO SEIZE LIQUOR KEPT IN
VIOLATION OF FEDERAL LAW, IT IS PERFECTLY CLEAR THAT THEY DO NOT IN
EXPRESS TERMS DECLARE SUCH SEIZURE ILLEGAL, AND IN MY OPINION THOSE
PROVISIONS IMPLIEDLY AUTHORIZE EXACTLY THE TYPE OF OFFICIAL CONDUCT
INVOLVED HERE.  I AM CONFIDENT THAT WHEN CONGRESS SAID THAT FEDERAL
LIQUOR AGENTS COULD SEARCH WITHOUT A WARRANT AND FURTHER PROVIDED FOR
FINES IF THE OWNER REFUSED TO PERMIT SUCH A SEARCH, /2/  IT ALSO
INTENDED TO AUTHORIZE FORCIBLE ENTRY AND SEIZURE IF THAT BECAME
NECESSARY.  I DO NOT THINK CONGRESS NEEDED TO SPEAK ANY MORE CLEARLY
THAN IT ALREADY HAS.  SINCE I CANNOT CONCLUDE THAT THIS SEARCH AND
SEIZURE WAS ILLEGAL UNDER EITHER THE FOURTH AMENDMENT OR ANY ACT OF
CONGRESS, BUT WAS TO THE CONTRARY CARRIED OUT PURSUANT TO CONGRESSIONAL
AUTHORIZAITON, I WOULD AFFIRM THE JUDGMENT BELOW AND HOLD THAT
PETITIONER WAS NOT ENTITLED TO A RETURN OF THE LIQUOR. 

/1/  SET FORTH ANTE, AT 73 NN. 1,2. 

/2/  26 U.S.C. 7342, ANTE, AT 74. 

O. JOHN ROGGE ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS JEROME M. STEMBER. 

JEROME M. FEIT ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, LAWRENCE G. WALLACE, AND CHARLES RUFF. 
..END :






REETZ V. BOZANICH, 397 U.S. 82 


       REETZ, COMMISSIONER OF FISH AND GAME OF ALASKA, ET AL. V.

           BOZANICH ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF ALASKA

        NO. 185.  ARGUED JANUARY 13, 1970-- DECIDED FEBRUARY 25,

           1970 


APPELLEES BROUGHT THIS ACTION CHALLENGING, UNDER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT AND UNDER CERTAIN PROVISIONS OF THE
ALASKA CONSTITUTION RELATING TO FISH RESOURCES, THE CONSTITUTIONALITY
OF AN ALASKA STATUTE AND REGULATIONS LIMITING COMMERCIAL SALMON FISHING
LICENSEES TO TO DEFINED GROUPS OF PERSONS.  APPELLANTS' MOTION TO
DISMISS OR ALTERNATIVELY TO STAY THE PROCEEDINGS PENDING STATE-COURT
DETERMINATION WITH RESPECT TO THE ALASKA CONSTITUTIONAL PROVISIONS
(WHICH HAVE NEVER BEEN INTERPRETED BY AN ALASKA COURT) WAS DENIED AND
APPELLEES' MOTION FOR SUMMARY JUDGMENT WAS GRANTED, THE THREE-JUDGE
DISTRICT COURT HOLDING THE ACT AND REGULATIONS INVALID UNDER BOTH THE
FEDERAL AND STATE CONSTITUTIONS.  HELD:  THE DISTRICT COURT SHOULD HAVE
ABSTAINED FROM DECIDING THE CASE ON THE MERITS PENDING RESOLUTION OF
THE STATE CONSTITUTIONAL QUESTIONS BY THE STATE COURTS, A PROCEDURE
THAT COULD CONCEIVABLY AVOID ANY DECISION UNDER THE FOURTEENTH
AMENDMENT AND ANY POSSIBLE IRRITATN IN THE FEDERAL-STATE RELATIONSHIP. 
CITY OF MERIDIAN V. SOUTHERN BELL TEL. & TEL. CO., 358 U.S. 639.  PP.
85-87. 

297 F.SUPP.  300, VACATED AND REMANDED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT,
CONVENED UNDER 28 U.S.C. 2281, 2284, DECLARING CERTAIN FISHING LAWS OF
ALASKA AND REGULATIONS UNDER THEM UNCONSTITUTIONAL AND ENJOINING THEIR
ENFORCEMENT.  297 U.S. 811. 

THE LAWS IN QUESTION, PASSED IN 1968, CONCERN SALMON NET GEAR
LICENSES FOR COMMERCIAL FISHING, NOT LICENSES FOR OTHER TYPES OF SALMON
FISHING.  THEY ARE CHALLENGED BECAUSE THEY LIMIT LICENSEES TO A DEFINED
GROUP OF PERSONS.  THE ACT IN MATERIAL PART PROVIDES:  /1/ 

     "PERSONS ELIGIBLE FOR GEAR LICENSES.  (A) EXCEPT IN CASES OF

  EXTREME HARDSHIP AS DEFINED BY THE BOARD OF FISH AND GAME, A

  SALMON NET GEAR LICENSE FOR A SPECIFIC SALMON REGISTRATION AREA

  MAY BE ISSUED ONLY TO A PERSON WHO 

     "(1) HAS PREVIOUSLY HELD A SLAMON NET GEAR LICENSE FOR THAT

  SPECIFIC SALMON REGISTRATION AREA; OR 

     "(2) HAS, FOR ANY THREE YEARS, HELD A COMMERCIAL FISHING

  LICENSE AND WHILE SO LICENSED ACTIVELY ENGAGED IN COMMERCIAL

  FISHING IN THAT SPECIFIC AREA." 

THE REGULATIONS /2/  PROVIDE THAT EXCEPT IN CASES OF "EXTREME
HARDSHIP /3/ . . . A SALMON NET GEAR LICENSE FOR A SPECIFIC SALMON
REGISTRATION AREA MAY BE ISSUED ONLY TO A PERSON WHO: 

     "(A) HAS HELD IN 1965 OR SUBSEQUENT YEARS A SALMON NET GEAR

  LICENSE FOR THAT SPECIFIC SALMON REGISTRATION AREA; OR 

"(B) HAS, FOR ANY THREE YEARS SINCE JANUARY 1, 1960, HELD A

 COMMERCIAL FISHING LICENSE AND WHILE SO LICENSED ACTIVELY ENGAGED

  IN COMMERCIAL FISHING IN THAT SPECIFIC AREA." 

APPELLEES ARE NONRESIDENTS WHO APPLIED FOR COMMERCIAL SALMON NET
GEAR LICENSES.  THEY APPARENTLY ARE EXPERIENCED NET GEAR SALMON
FISHERMEN BUT THEY CANNOT QUALIFY FOR A SALMON NET GEAR LICENSE TO FISH
IN ANY OF THE 12 REGIONS OR AREAS DESCRIBED IN THE ACT AND THE
REGULATIONS.  /4/ 

APPELLEES FILED A MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT
THE ACT AND REGULATIONS DEPRIVED THEM OF THEIR RIGHTS UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND ALSO THEIR RIGHTS
UNDER THE ALASKA CONSTITUTION.  THAT CONSTITUTION PROVIDES IN ART.
VIII, SEC. 3: 

     "WHEREVER OCCURRING IN THEIR NATURAL STATE, FISH, WILDLIFE,
AND

  WATERS ARE RESERVED TO THE PEOPLE FOR COMMON USE." 

AND IT PROVIDES IN ART. VIII, SEC. 15: 

   "NO EXCLUSIVE RIGHT OR SPECIAL PRIVILEGE OF FISHERY SHALL BE

  CREATED OR AUTHORIZED IN THE NATURAL WATERS OF THE STATE." 

APPELLANTS FILED A MOTION TO DISMISS OR ALTERNATIVELY TO STAY THE
PROCEEDINGS IN THE DISTRICT COURT PENDING THE DETERMINATION OF THE
ALASKA CONSTITUTIONAL QUESTION BY AN ALASKA COURT. 

APPELLANTS' MOTION TO DISMISS OR TO STAY WAS DENIED.  APPELLEES'
MOTION FOR SUMMARY JUDGMENT WAS GRANTED, THE THREE-JUDGE DISTRICT COURT
HOLDING THAT THE ACT AND REGULATIONS IN QUESTION WERE UNCONSTITUTIONAL
BOTH UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND
UNDER THE CONSTITUTION OF ALASKA.  297 F.SUPP., AT 304-307. 

THIS CASE IS VIRTUALLY ON ALL FOURSE WITH CITY OF MERIDIAN V.
SOUTHERN BELL TEL. & TEL. CO., 358 U.S. 639, WHERE A SINGLE DISTRICT
JUDGE IN CONSTRUING A MISSISSIPPI STATUTE HELD THAT IT VIOLATED BOTH
THE FEDERAL AND THE STATE CONSTITUTIONS.  THE COURT OF APPEALS AFFIRMED
AND WE VACATED ITS JUDGMENT AND REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO HOLD THE CASE WHILE THE PARTIES REPARIED TO A STATE
TRIBUNAL "FOR AN AUTHORATITIVE DECLARATION OF APPLICABLE STATE LAW." 
ID., AT 640. 

WE SAID: 

     "PROPER EXERCISE OF DEDERAL JURISDICTION REQUIRES THAT

  CONTROVERSIES INVOLVING UNSETTLED QUESTIONS OF STATE LAW BE

  DECIDED IN THE STATE TRIBUNALS PRELIMINARY TO A FEDERAL COURT'S

CONSIDERATION OF THE UNDERLYING FEDERAL CONSTITUTIONAL

  QUESTIONS.  . .  THAT IS ESPECIALLY DESIRABLE WHERE THE QUESTIONS

  OF STATE LAW ARE ENMESHED WITH FEDERAL QUESTIONS.  . .  HERE, THE

  STATE LAW PROBLEMS ARE DELICATE ONES, THE RESOLUTION OF WHICH IS

  NOT WITHOUT SUBSTANTIAL DIFFICULTY-- CERTAINLY FOR A FEDERAL

  COURT.  . .  IN SUCH A CASE, WHEN THE STATE COURT'S
INTERPRETATION

  OF THE STATUTE OR EVALUATION OF ITS VALIDITY UNDER THE STATE

  CONSTITUTION MAY OBVIATE ANY NEED TO CONSIDER ITS VALIDITY UNDER

  THE FEDERAL CONSTITUTION, THE FEDERAL COURT SHOULD HOLD ITS HAND,

  LEST IT RENDER A CONSTITUTIONAL DECISION UNNECESSARILY."  ID., AT

  640-641. 

WE ARE ADVISED THAT THE PROVISIONS OF THE ALASKA CONSTITUTION AT
ISSUE HAVE NEVER BEEN INTERPRETED BY AN ALASKA COURT.  THE DISTRICT
COURT, FEELING SURE OF ITS GROUNDS ON THE MERITS, HELD, HOWEVER, THAT
THIS WAS NOT A PROPER CASE FOR OBSTENTION, SAYING THAT "IF THE QUESTION
HAD BEEN PRESENTED TO AN ALASKA COURT, IT WOULD HAVE SHARED OUR
CONVICTION THAT THE CHALLENGED GEAR LICENSING SCHEME IS NOT
SUPPORTABLE."  297 F.SUPP.,AT 304.  THE THREE-JUDGE PANEL WAS A
DISTINGUISHED ONE, TWO BEING FORMER ALASKA LAWYERS.  AND THEY FELT THAT
PROMPT DECISION WAS NECESSARY TO AVOID THE "GRAVE AND IRREPARABLE"
INJURY TO THE "ECONOMIC LIVELIHOOD" OF THE APPELLEES WHICH WOULD
RESULT, IF THEY COULD NOT ENGAGE IN THEIR OCCUPATION "DURING THIS
YEAR'S FORTHCOMING FISHING SEASON."  IBID. 

IT IS, OF COURSE, TRUE THAT ABSTENTION IS NOT NECESSARY WHENEVER A
FEDERAL COURT IS FACED WITH A QUESTION OF LOCAL LAW, THE CLASSIC CASE
BEING MEREDITH V. WINTER HAVEN, 320 U.S. 228, WHERE FEDERAL
JURISDICTION WAS BASED ON DIVERSITY ONLY.  ABSTENTION CERTAINLY
INVOLVES DUPLICATION OF EFFORT AND EXPENSE AND AN ATTENDANT DELAY.  SEE
ENGLAND V. LOUISIANA STATE BOARD, 375 U.S. 411.  THAT IS WHY WE HAVE
SAID THAT THIS JUDICIALLY CREATED RULE WHICH STEMS FROM RAILROAD COMM'N
V. PULLMAN CO., 312 U.S. 496, SHOULD BE APPLIED ONLY WHERE "THE ISSUE
OF STATE LAW IS UNCERTAIN."  HARMAN V. FORSSENIUS, 380 U.S. 528, 534. 
MOREOVER, WE SAID IN ZWICKLER V. KOOTA, 389 U.S. 241, 248, THAT
ABSTENTION WAS APPLICABLE "ONLY IN NARROWLY LIMITED 'SPECIAL
CIRCUMSTANCES.'"  CITING PROPER V. CLARK, 337 U.S. 472, 492.  IN
ZWICKLER, A STATE STATUTE WAS ATTACKED ON THE GROUND THAT ON ITS FACE
IT WAS REPUGNANT TO THE FIRST AMENDMENT; AND IT WAS CONCEDED THAT STATE
COURT CONSTRUCTION COULD NOT RENDER UNNECESSARY A DECISION OF THE FIRST
AMENDMENT QUESTION.  389 U.S., AT 250.  A STATE COURT DECISION HERE,
HOWEVER, COULD CONCEIVABLY AVOID ANY DECISION UNDER THE FOURTEENTH
AMENDMENT AND WOULD AVOID ANY POSSIBLE IRRITANT IN THE FEDERAL-STATE
RELATIONSHIP. 

THE PULLMAN DOCTRINE WAS BASED ON "THE AVOIDANCE OF NEEDLESS
FRICTION" BETWEEN FEDERAL PRONOUNCEMENTS AND STATE POLICIES.  312 U.S.
AT 500.  THE INSTANT CASE IS THE CLASSIC CASE IN THAT TRADITION, FOR
HERE THE NUB OF THE WHOLE CONTROVERSY MAY BE THE STATE CONSTITUTION. 
THE CONSTITUTIONAL PROVISIONS RELATE TO FISH RESOURCES, AN ASSET UNIQUE
IN ITS ABUNDANCE IN ALASKA.  THE STATUTE AND REGULATIONS RELATE TO THAT
SAME UNIQUE RESOURCE, THE MANAGEMENT OF WHICH IS A MATTER OF GREAT
STATE CONCERN.  WE APPRECIATE WHY THE DISTRICT COURT FELT CONCERN OVER
THE EFFECT OF FURTHER DELAY ON THESE PLAINTIFFS, THE APPELLEES HERE;
BUT WE HAVE CONCLUDED THAT THE FIRST JUDICIAL APPLICATION OF THESE
CONSTITUTIONAL PROVISIONS SHOULD PROPERLY BE BY AN ALASKA COURT. 

WE THINK THE FEDERAL COURT SHOULD HAVE STAYED ITS HAND WHILE THE
PARTIES REPAIRED TO THE STATE COURTS FOR A RESOLUTION OF THEIR STATE
CONSTITUTIONAL QUESTIONS.  WE ACCORDINGLY VACATE THE JUDGMENT OF THE
DISTRICT COURT AND REMAND THE CASE FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  ALASKA STAT. SEC. 16.05.536 (1968).  SUBD. (B) OF THAT SECTION
SPECIFIES THE DATE TO BE SUPPLIED IN APPLICATIONS FOR A GEAR LICENSE. 

OPERATE OR ASSIST IN THE OPERATION OF THE LICENSED FISHING GEAR"; THAT
HE SHALL "PERSONALLY OWN OR LEASE THE LICENSED FISHING GEAR"; AND THAT
THE LICENSE IS "TRANSFERABLE." 

/2/  ALASKA COMMERCIAL FISHING REGULATIONS SEC. 102.09(A)(2). 

/3/  AS DEFINED IN THE REGULATIONS, ID., SEC. 102.09 (A) (2). 

/4/  WHILE THE ORIGINAL COMPLAINT CHALLENGED THE 1968 REGULATIONS,
IT WAS AMENDED TO CHALLENGE THE 1968 ACT AND THE 1969 REGULATIONS UNDER
IT, WHICH REGULATED THE 1969 FISHING SEASON. 

CHARLES K. CRANSTON, ASSISTANT ATTORNEY GENERAL OF ALASKA, ARGUED
THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEF WERE G. KENT EDWARDS,
ATTORNEY GENERAL, AND ROBERT L. HARTIG, ASSISTANT ATTORNEY GENERAL. 

ROBERT BOOCHEVER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS SETH WARNER MORRISON III. 
..END :






















ARKANSAS V. TENNESSEE, 397 U.S. 88 


       ARKANSAS V. TENNESSEE

        ON BILL OF COMPLAINT

        NO. 33, ORIG.  ARGUED JANUARY 19, 1970-- DECIDED FEBRUARY

           25, 1970 


THE SPECIAL MASTER'S REPORT, RECO-MENDING THAT A DISPUTED AREA
BETWEEN ARKANSAS AND TENNESSEE ALONG THE MISSISSIPPI RIVER BE DECLARED
PART OF TENNESSEE, IS ADOPTED, AND THE MASTER IS APPOINTED AS
COMMISSIONER TO HAVE THE BOUNDARY LINE SURVEYED AND SUBMITTED TO THE
COURT FOR APPROVAL. 

PER CURIAM. 

THIS ORIGINAL ACTION WAS COMMENCED ON OCTOBER 13, 1967, BY THE STATE
OF ARKANSAS TO SETTLE A BOUNDARY DISPUTE WITH THE STATE OF TENNESSEE. 
THE DISPUTED AREA EXTENDS SIX MILES LATERALLY ALONG THE WEST (ARKANSAS
SIDE) BANK OF THE MISSISSIPPI RIVER AND ENCOMPASSES SOME FIVE THOUSAND
ACRES.  THIS COURT'S JURISDICTION ARISES UNDER ART. III, SEC. 2, OF THE
CONSTITUTION OF THE UNITED STATES.  ON JANUARY 15, 1968, WE APPOINTED,
389 U.S. 1026, HON. GUNNAR H. NORDBYE, SENIOR UNITED STATES JUDGE OF
THE DISTRICT OF MINNESOTA, AS SPECIAL MASTER TO DETERMINE THE STATE
LINE IN THE DISPUTED AREA KNOWN AS COW ISLAND BEND IN THE MISSISSIPPI
RIVER LOCATED BETWEEN CRITTENDEN COUNTY, ARKANSAS, AND SHELBY COUNTY,
TENNESSEE.  AFTER CONDUCTING AN EVIDENTIARY HEARING AND VIEWING THE
AREA, THE MASTER FILED HIS REPORT WITH THIS COURT RECOMMENDING THAT ALL
OF THE DISPUTED AREA BE DECLARED PART OF THE STATE OF TENNESSEE.  WE
AFFIRM THE MASTER'S REPORT. 

THE PARTIES AGREE THAT THE STATE LINE IS THE TLALWEG, THAT IS, THE
STEAMBOAT CHANNEL OF THE MISSISSIPPI RIVER AS IT FLOWS WEST AND
SOUTHWARD BETWEEN THESE STATES.  THE MASTER HEARD EVIDENCE AND WAS
PRESENTED EXHIBITS AND MAPS WHICH SHOWED THAT THE MIGRATION OF THE
MISSISSIPPI RIVER NORTHWARD AND WEST CONTINUED UNTIL ABOUT 1912.  AT
THIS TIME AN AVULSION OCCURRED LEAVING TENNESSEE LANDS ON THE WEST OR
ARKANSAS SIDE OF THE NEW OR AVULSIVE RIVER CHANNEL.  THE MASTER FOUND
THAT THEREAFTER, BECAUSE OF THE AVULSION, THE WATER IN THE THALWEG
BECAME STAGNANT AND EROSION AND ACCRETION NO LONGER OCCURRED.  AT THIS
TIME THE BOUNDARY BETWEEN ARKANSAS AND TENNESSEE BECAME FIXED IN THE
MIDDLE OF THE OLD ABANDONED CHANNEL. 

THIS IS A CLASSIS EXAMPLE OF THE SITUATED REFERRED TO IN AN EARLIER
CASE BETWEEN THESE STATES, ARKANSAS V. TENNESSEE, 246 U.S. 158, 173,
WHERE WE SAID, 

     "IT IS SETTLED BEYOND THE POSSIBILITY OF DISPUTE THAT WHERE

  RUNNING STREAMS ARE THE BOUNDARIES BETWEEN STATES, THE SAME RULE

  APPLIES AS BETWEEN PRIVATE PROPRIETORS, NAMELY, THAT WHEN THE BED

  AND CHANNEL ARE CHANGED BY THE NATURAL AND GRADUAL PROCESSES

  KNOWN AS EROSION AND ACCRETION, THE BOUNDARY FOLLOWS THE VARYING

  COURSE OF THE STREAM; WHILE IF THE STREAM FROM ANY CAUSE, NATURAL

  OR ARTIFICIAL, SUDDENLY LEAVES ITS OLD BED AND FORMS A NEW ONE,

  BY THE PROCESS KNOWN AS AN AVULSION, THE RESULTING CHANGE OF

  CHANNEL WORKS NO CHANGE OF BOUNDARY, WHICH REMAINS IN THE MIDDLE

  OF THE OLD CHANNEL, ALTHOUGH NO WATER MAY BE FLOWING IN IT, AND

  IRRESPECTIVE OF SUBSEQUENT CHANGES IN THE NEW CHANNEL." 

AND, AGAIN, ID., AT 175, 

     "AN AVULSION HAS THIS EFFECT, WHETHER IT RESULTS IN THE DRYING

  UP OF THE OLD CHANNEL OR NOT.  SO LONG AS THAT CHANNEL REMAINS A

  RULLING STREAM THE BOUNDARY MARKED BY IT IS STILL SUBJECT TO BE

  CHANGED BY EROSION AND ACCRETION; BUT WHEN THE WATER BECOMES

  STAGNANT, THE EFFECT OF THESE PROCESSES IS AT AN END; THE

  BOUNDARY THEN BECOMES FIXED IN THE MIDDLE OF THE CHANNEL AS WE

  HAVE DEFINED IT, AND THE GRADUAL FILLING UP OF THE BED THAT

  ENSUES IS NOT TO BE TREATED AS AN ACCRETION TO THE SHORES BUT AS

  AN ULTIMATE EFFECT OF THE AVULSION." 

THE EXCEPTIONS OF THE STATE OF ARKANSAS ARE OVERRULED AND THE REPORT
OF THE SPECIAL MASTER IS ADOPTED. 

IT IS ORDERED THAT THE HON. GUNNAR H. NORDBYE BE, AND HE IS HEREBY,
APPOINTED AS COMMISSIONER IN THIS CASE WITH POWER TO ENGAGE AND
SUPERVISE A COMPETENT SURVEYOR, OR SURVEYORS, TO SURVEY THE BOUNDARY
LINE AS RECOMMENDED IN THE MASTER'S REPORT.  THE BOUNDARY LINE
DETERMINED BY SUCH SURVEY SHALL BE SUBMITTED TO THE COURT BY THE
COMMISSIONER AND, IF SPPROVED, SHALL BE THE BOUNDARY LINE BETWEEN THE
TWO STATES. 

THE COSTS OF THIS PROCEEDING SHALL BE DIVIDED EQUALLY BETWEEN THE
PARTIES. 

DON LANGSTON, ASSISTANT ATTORNEY GENERAL OF ARKANSAS, ARGUED THE
CAUSE FOR PLAINTIFF ON EXCEPTIONS TO THE REPORT OF THE SPECIAL MASTER. 
WITH HIM ON THE BRIEF WAS JOE E. PURCELL, ATTORNEY GENERAL. 

HEARD H. SUTTON ARGUED THE CAUSE FOR DEFENDANT IN SUPPORT OF THE
REPORT OF THE SPECIAL MASTER.  WITH HIM ON THE BRIEF WAS DAVID PACK,
ATTORNEY GENERAL OF TENNESSEE, C. HAYES COONEY, ASSISTANT ATTORNEY
GENERAL, HARRY W. LAUGHLIN, JAMES L. GATHRIGHT, JR., AND J. MARTIN
REGAN. 
..END :



ARKANSAS V. TENNESSEE, 397 U.S. 91 


       ARKANSAS V. TENNESSEE

        NO. 33, ORIG.  DECIDED FEBRUARY 25, 1970-- DECREE ENTERED

           FEBRUARY 25, 1970 


OPINION REPORTED:  ANTE, P. 88. 

       DECREE 

1.  IT IS ORDERED, ADJUDGED, AND DECREED THAT THE BOUNDARY LINE
BETWEEN THE STATES OF ARKANSAS AND TENNESSEE IN THE AREA IN CONTROVERSY
SHALL BE FIXED IN THE MIDDLE OF THE OLD ABANDONED COW ISLAND BENDWAY
CHANNEL AS PARTICALLY REFLECTED IN THE 1953 SURVEY OF ONE R. L. COOPER
(DEFENDANT'S EXHIBIT 42, ATTACHED TO THE DECREE IN BROWN V. BRAKENSIEK,
IN THE CHANCERY COURT OF SHELBY COUNTY, TENNESSEE), SAID ABANDONED
CHANNEL EXTENDING FROM ITS UPPER OR UP-RIVER END TO THE LOWER OR DOWN
RIVER END OF IKE CHUTE AS FAR AS THAT SURVEY GOES, THEN DOWNSTEAM IN A
SOUTHERLY DIRECTION PASSING DOWN THE MIDDLE OF A WATER DRAIN OR CREEK
NOW RUNNING BETWEEN THE LOWER END OF IKE CHUTE AND THE UPPER END OF 96
CHUTE, THENCE CONTINUING DOWNSTREAM IN A SOUTHERLY DIRECTION DOWN THE
MIDDLE OF 96 CHUTE AND COMING OUT OF 96 CHUTE ON A CONTINUING STRAIGHT
LINE TO THE POINT WHERE IT JOINS THE PRESENT NAVIGATION CHANNEL OF THE
MISSISSIPPI RIVER, ALL AS INDICATED BY A BROKEN LINE MARKED "STATE
LINE" ON THE ANNEXED REDUCED COPY OF THE 1965 AERIAL PHOTOGRAPH OF THE
AREA IN CONTROVERSY, JOINT EXHIBIT A, MARKED APPENDIX A-I, AND ALSO AS
REFLECTED BY A BROKEN LINE MARKED "STATE LINE" ON A REDUCED COPY OF
DEFENDANT'S EXHIBIT 39, THE 1937 MAP OF THE UNITED STATES ENGINEERS AND
HERETO ANNEXED AS APPENDIX A-II. 

2.  IT IS ORDERED THAT THE HON. GUNNAR H. NORDBYE BE, AND HE IS
HEREBY, APPOINTED COMMISSIONER IN THIS CASE WITH POWER TO ENGAGE AND
SUPERVISE A COMPETENT SURVEYOR, OR SURVEYORS, TO SURVEY THE BOUNDARY
LINE AS PROVIDED IN THIS DECREE.  THE BOUNDARY LINE DETERMINED BY SUCH
SURVEY SHALL BE SUBMITTED TO THE COURT BY THE COMMISSIONER AND, IF
APPROVED, SHALL BE THE BOUNDARY LINE BETWEEN THE TWO STATES. 

3.  THE COSTS OF THIS PROCEEDING SHALL BE DIVIDED EQUALLY BETWEEN
THE PARTIES.  (MAPS OMITTED)
..END :










ARKANSAS V. TENNESSEE, 399 U.S. 219 


       ARKANSAS V. TENNESSEE

        DECREE

 NO. 33, ORIG.  DECIDED FEBRUARY 25, 1970-- DECREE ENTERED

           (INTER ALIA, APPOINTING BOUNDARY COMMISSIONER) FEBRUARY

           25, 1970-- DECREE ENTERED (ESTABLISHING BOUNDARY LINE)

           JUNE 23, 1970 


OPINION REPORTED:  397 U.S. 88. 

DECREE REPORTED:  397 U.S. 91. 

THIS COURT ON FEBRUARY 25, 1970, 397 U.S. 88, 91, HAVING ENTERED A
DECREE AND APPOINTED A BOUNDARY COMMISSIONER TO SURVEY THE BOUNDARY
BETWEEN ARKANSAS AND TENNESSEE AND PURSUANT TO THAT DECREE THE SAID
COMMISSIONER HAVING FILED A "REPORT ON COMMISSION TO SURVEY" IN WHICH
HE SETS FORTH THE GENERAL LOCATION AND SPECIFIC LOCATION OF SUCH
BOUNDARY TO WHICH THE PARTIES HAVE APPROVED AND CONSENTED. 

IT IS ORDERED, ADJUDGED, AND DECREED THAT SUCH BOUNDARY SHALL BE
FIXED AS FOLLOWS:

        GENERAL LOCATION 

THE STATE BOUNDARY LINE INVOLVED HEREIN IS LOCATED BETWEEN
CRITTENDEN COUNTY, ARKANSAS, AND SHELBY COUNTY, TENNESSEE, IN AN AREA
FORMERLY KNOWN AS COW ISLAND BEND, AND MORE RECENTLY CALLED SCANLAN
CHUTE, FROG CHUTE, IKE CHUTE OR LAKE, AND 96 CHUTE; AND IS GENERALLY
WITHIN A RECTANGLE BETWEEN LATITUDES 35 DEGREES 00' AND 35 DEGREES 03',
AND LONGITUDES 90 DEGREES 15 ' AND 90 DEGREES 19', AND IS MORE
PARTICULARLY DESCRIBED AS FOLLOWS:

        SPECIFIC LOCATION 

     BEGINNING AT A POINT, DESIGNATED AS STATION NO. 1, WHICH POINT

IS, S 6 DEGREES 34' E, AT 1,359.0 FEET FROM, MISSISSIPPI RIVER

  COMMISSION PERMANENT BENCH MARK "SCANLAN," WHOSE COORDINATES ARE,

  LATITUDE 35 DEGREES 02' PLUS 1,555.76 FEET, AND LONGITUDE 90

  DEGREES 15' PLUS 1,014.42 FEET.  (REFERENCE FOR PBM "SCANLAN,"

  SEE PAGE 118 OF PERMANENT MARKS, VOLUME ONE OF MISSISSIPPI RIVER

  COMMISSION.) 

     SAID ABOVE BEGINNING POINT BEING ON A LINE RUNNING, S 75

DEGREES 39' E, 3,500.0 FEET MORE OR LESS FROM, THE PRESENT

STEAMBOAT CHANNEL (THALWEG) OF THE MISSISSIPPI RIVER; THENCE N 75

  DEGREES 39' W, 645.8 FEET TO A POINT; THENCE N 17 DEGREES 18' W,

  920.4 FEET TO A POINT; THENCE N 35 DEGREES 25' W, 436.3 FEET TO A

  POINT; THENCE N 62 DEGREES 36' W, 491.3 FEET TO A POINT,

  DESIGNATED AS STATION NO. 2; THENCE S 85 DEGREES 53' W, 2,161.6

  FEET TO A POINT; THENCE S 82 DEGREES 00' W, 1,443.3 FEET TO A

  POINT; THENCE N 87 DEGREES 38' W, 2,739.74 FEET TO A POINT;

  THENCE S 79 DEGREES 35' W, 1,808.5 FEET TO A POINT; THENCE S 38

  DEGREES 47' W, 1,033.1 FEET TO A POINT; THENCE S 24 DEGREES 52'

  W, 811.0 FEET TO A POINT; THENCE S 7 DEGREES 38' W, 2,085.5 FEET

  TO A POINT; THENCE S 11 DEGREES 29' W, 1,725.2 FEET TO A POINT,

  DESIGNATED AS STATION NO. 3; THENCE S 23 DEGREES 31' W, 3,098.3

  FEET TO A POINT; THENCE S 0 DEGREES 51' E, 1,370.5 FEET TO A

  POINT; THENCE S 13 DEGREES 15' E, 1,158.1 FEET TO A POINT,

  DESIGNATED AS STATION NO. 4; THENCE S 38 DEGREES 45' W, 814.5

  FEET TO A POINT; THENCE S 23 DEGREES 55' W, 864.1 FEET TO A

  POINT; THENCE S 12 DEGREES 30' W, 644.4 FEET TO A POINT; THENCE S

  6 DEGREES 30' W, 1,270.5 FEET TO A POINT, WHICH POINT IS, S 81

DEGREES 52' E (MAG.), 2,736.5 FEET FROM, UNITED STATES ENGINEER

  ARKANSAS LEVEE BENCH MARK FOR MILE POST 170/171; THENCE S 17

  DEGREES 40' E, 1,627.0 FEET TO A POINT; THENCE S 6 DEGREES 50' E,

  1,485.0 FEET TO A POINT; THENCE S 22 DEGREES 10' E, 2,500.0 FEET

  MORE OR LESS, TO THE PRESENT STEAMBOAT CHANNEL (THALWEG) OF THE

  MISSISSIPPI. 

THE ABOVE SURVEYED BOUNDARY LINE BETWEEN THE STATES OF ARKANSAS AND
TENNESSEE IN THE AREA INVOLVED IS SHOWN BY A BROKEN LINE MARKED ON THE
ATTACHED 1965 AERIAL PHOTOGRAPH OF SAID AREA, WHICH AERIAL PHOTOGRAPH
IS ALSO DESIGNATED APPENDIX A-I TO THIS COURT'S DECREE OF FEBRUARY 25,
1970.  /1/ 

/1/  (REPORTER'S NOTE:  THE AERIAL PHOTOGRAPH IS NOT REPRODUCED
HERE, SINCE IT HAS BEEN PUBLISHED IN CONNECTION WITH THE COURT'S
PREVIOUS DECREE.  SEE 397 U.S. 91 (IMMEDIATELY FOLLOWING 92).) 
..END :
























UNITED STATES V. KORDEL, 397 U.S. 1 


       UNITED STATES V. KORDEL ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT. 

        NO. 87.  ARGUED NOVEMBER 20, 1969-- DECIDED FEBRUARY 24,

           1970 


RESPONDENTS ARE CORPORATE OFFICERS WHO, WITH THE CORPORATION, WERE
CONVICTED OF VIOLATING THE FEDERAL FOOD, DRUG, AND COSMETIC ACT.  AN IN
REM ACTION AGAINST TWO CORPORATE PRODUCTS HAD BEEN BEGUN IN JUNE 1960,
AND INTERROGATORIES ROUTINELY PREPARED BY THE FOOD AND DRUG
ADMINISTRATION (FDA) WERE SUBMITTED TO THE CORPORATION IN JANUARY
1961.  LATER THAN MONTH THE CORPORATION AND RESPONDENTS WERE NOTIFIED,
PURSUANT TO SEC. 305 OF THE ACT, THAT THE FDA CONTEMPLATED A CRIMINAL
PROCEEDING AGAINST THEM RESPECTING THE TRANSACTIONS THAT WERE THE
SUBJECT OF THE CIVIL ACTION.  IN JUNE 1961 THE DISTRICT COURT DENIED
THE CORPORATION'S MOTION TO STAY FURTHER PROCEEDINGS IN THE CIVIL
ACTION OR TO EXTEND THE TIME FO ANSWERING THE INTERROGATORIES UNTIL
AFTER DISPOSITION OF ANY CRIMINAL PROCEEDING.  THE FDA RECOMMENDED
CRIMINAL PROSECUTION PRIOR TO THE SEPTEMBER ANSWER TO THE
INTERROGATORIES BY THE CORPORATION THROUGH RESPONDENT FELDTEN.  NO ONE
ASSOCIATED WITH THE CORPORATION ASSERTED HIS PRIVILEGE AGAINST SELF
INCRIMINATION.  THE COURT OF APPEALS REVERSED RESPONDENT'S CONVICTIONS
ON THE GROUND THAT USE OF INTERROGATORIES TO OBTAIN EVIDENCE IN A
NEARLY CONTEMPORANEOUS CIVIL CONDEMNATION PROCEEDING OPERATED TO
VIOLATE THEIR FIFTH AMENDMENT PRIVILEGE.  HELD: 

1.  THE COURT OF APPEALS ERRED IN HOLDING THAT THE ANSWERS TO THE
INTERROGATORIES WERE INVOLUNTARILY GIVEN.  PP. 6-11. 

(A) RESPONDENT FELDTEN, WHO WAS NOT BARRED FROM ASSERTING HIS
PRIVILEGE AGAINST SELF-INCRIMINATION BECAUSE THE CORPORATION HAD NO
PRIVILEGE OF ITS OWN OR BECAUSE THE PROCEEDING WAS CIVIL RATHER THAN
CRIMINAL, FAILED TO ASSERT HIS PRIVILEGE AND CANNOT NOW COMPLAIN THAT
HE WAS FORCED TO TESTIFY AGAINST HIMSELF.  PP. 7-10. 

(B) RESPONDENT KORDEL, WHO ANSWERED NO INTERROGATORIES AND DID NOT
ASSERT THE PRIVILEGE, CAN HARDLY CLAIM COMPULSORY SELF-INCRIMINATION;
AND KORDEL CANNOT CLAIM THAT HIS RIGHT TO CONFRONTATION WAS VIOLATED BY
USE IN THE CRIMINAL CASE AGAINST HIM OF HIS CODEFENDANT FELDTEN'S
ADMISSIONS, WHICH WERE NEVER INTRODUCED IN EVIDENCE.  PP. 10-11. 

2.  ON THE RECORD HERE THE RESPONDENTS HAVE NOT ESTABLISHED A
VIOLATION OF DUE PROCESS OR A DEPARTURE FROM PROPER STANDARDS IN THE
ADMINISTRATION OF JUSTICE REQUIRING THE EXERCISE OF THE COURT'S
SUPERVISORY POWER.  PP. 11-13. 

407 F.2D 570, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS ARE THE PRESIDENT AND VICE PRESIDENT, RESPECTIVELY,
OF DETROIT VITAL FOODS, INC.  THEY WERE CONVICTED IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, ALONG WITH THE
CORPORATION, FOR VIOLATIONS OF THE FEDERAL FOOD, DRUG, AND COSMETIC
ACT.  /1/  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED THE
RESPONDENT'S CONVICTIONS ON THE GROUND THAT THE GOVERNMENT'S USE OF
INTERROGATORIES TO OBTAIN EVIDENCE FROM THE RESPONDENTS IN A NEARLY
CONTEMPORANEOUS CIVIL CONDEMNTATION PROCEEDING OPERATED TO VIOLATE
THEIR FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION. 
/2/  WE GRANTED CERTIORARI TO CONSIDER THE QUESTIONS RAISED BY THE
GOVERNMENT'S INVOCATION OF SIMULTANEOUS CIVIL AND CRIMINAL PROCEEDINGS
IN THE ENFORCEMENT OF FEDERAL LAW.  /3/ 

IN MARCH 1960 THE DIVISION OF REGULATORY MANAGEMENT OF THE FOOD AND
DRUG ADMINISTRATION (HEREAFTER FDA) INSTRUCTED THE AGENCY'S DETROIT
OFFICE TO INVESTIGATE THE RESPONDENT'S POSSIBLE VIOLATIONS OF THE FOOD,
DRUG, AND COSMETIC ACT.  WITHIN A MONTH THE DETROIT OFFICE RECOMMENDED
TO THE DIVISION A CIVIL SEIZURE OF TWO OF THE RESPONDENT'S PRODUCTS,
"KORLEEN" AND "FRUTEX"; WITHIN ANOTHER MONTH THE DIVISION SIMILARLY
RECOMMENDED SEIZURE TO THE FDA'S GENERAL COUNSEL.  ON JUNE 6, 1960, THE
GENERAL COUNSEL REQUESTED THE UNITED STATES ATTORNEY FOR THE EASTERN
DISTRICT OF MICHIGAN TO COMMENCE AN IN REM ACTION AGAINST THESE
PRODUCTS OF THE CORPORATION, AND THE UNITED STATES ATTORNEY FILED A
LIBEL THREE DAYS LATER.  THE CORPORATION, APPEARING AS THE CLAIMANT,
ANSWERED THE LIBEL ON SEPTEMBER 12, 1960.  AN FDA OFFICIAL IN THE
DIVISION OF REGULATORY MANAGEMENT THEN PREPARED EXTENSIVE
INTERROGATORIES TO BE SERVED ON THE CORPORATION IN THIS CIVIL ACTION. 
THE UNITED STATES ATTORNEY FILED THE AGENCY'S INTERROGATORIES ON
JANUARY 6, 1961, PURSUANT TO RULE 33 OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  /4/ 

AFTER THE DIVISION OFFICIAL HAD DRAFTED THE INTERROGATORIES, HE
RECOMMENDED THAT PURSUANT TO SEC. 305 OF THE FOOD, DRUG, AND COSMETIC
ACT THE FDA SERVE UPON THE CORPORATION AND THE RESPONDENTS A NOTICE
THAT THE AGENCY CONTEMPLATED A CRIMINAL PROCEEDING AGAINST THEM WITH
RESPECT TO THE TRANSACTIONS THAT WERE THE SUBJECT OF THE CIVIL ACTION. 
/5/  ON JANUARY 9, 1961, THREE DAYS AFTER THE FILING OF THE
INTERROGATORIES IN THE CIVIL ACTION, THE DETROIT OFFICE RECEIVED AN
INSTRUCTION FROM THE DIVISION TO SERVE THE STATUTORY NOTICE.  THE
DETROIT OFFICE COMPLIED 10 DAYS LATER, AND ON MARCH 8, 1961, THE AGENCY
HELD A HEARING ON THE NOTICE. 

ON APRIL 10, THE CORPORATION, HAVING RECEIVED THE FDA'S
INTERROGATORIES BUT NOT YET HAVING ANSWERED THEM, MOVED TO STAY FURTHER
PROCEEDINGS IN THE CIVIL ACTION OR, IN THE ALTERNATIVE, TO EXTEND THE
TIME TO ANSWER THEINTERROGATORIES UNTIL AFTER DISPOSITION OF THE
CRIMINAL PROCEEDING SIGNALED BY THE SEC. 305 NOTICE.  THE MOTION WAS
ACCOMPANIED BY THE AFFIDAVIT OF COUNSEL.  THE MOVING PAPERS URGED THE
DISTRICT COURT TO ACT UNDER RULE 33 "IN THE INTEREST OF SUBSTANTIAL
JUSTICE" AND AS A "BALANCING OF HARDSHIP AND EQUITIES OF THE RESPECTIVE
PARTIES .... "  PERMITTING THE GOVERNMENT TO OBTAIN PROOF OF VIOLATIONS
OF THE ACT BY RESORT TO CIVIL DISCOVERY PROCEDURES, THE MOVANT URGED,
WOULD BE "IMPROPER" AND WOULD "WORK A GRAVE INJUSTICE AGAINST THE
CLAIMANT"; IT WOULF ALSO ENABLE THE GOVERNMENT TO HAVEPRETRIAL
DISCOVERY OF THE RESPONDENT'S DEFENSES TO FUTURE CRIMINAL CHARGES. 
COUNSEL EXPRESSLY DISAVOWED ANY "ISSUE OF A SELF-INCRIMINATION
PRIVILEGE IN FAVOR OF THE CLAIMANT CORPORATION."  AND NOWHERE IN THE
MOVING PAPERS DID COUNSEL RAISE A CLAIM OF THE FIFTH AMENDMENT
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION WITH RESPECT TO THE
RESPONDENTS. 

ON JUNE 21, 1961, THE DISTRICT COURT DENIED THE MOTION UPON FINDING
THAT THE CORPORATION HAD FAILED TO DEMONSTRATE THAT SUBSTANTIAL
PREJUDICE AND HARM WOULD RESULT FROM BEING REQUIRED TO RESPOND TO THE
INTERROGATORIES.  THE COURT REASONED THAT THE SEC. 305 NOTICE DID NOT
CONCLUSIVELY INDICATE THE GOVERNMENT WOULD INSTITUTE A CRIMINAL
PROCEEDING, THAT SIX TO 12 MONTHS COULD ELAPSE FROM THE SERVICE OF THE
STATUTORY NOTICE TO INITIATION OF A CRIMINAL PROSECUTION, AND THAT THE
GOVERNMENT COULD OBTAIN DATA FOR A PROSECUTION FROM THE TESTIMONY IN
THE CIVIL ACTION OR BY SUBPOENAING THE BOOKS AND RECORDS OF THE
CORPORATION.  ACCORDINGLY, THE COURT CONCLUDED, THE INTERESTS OF
JUSTICE DID NOT REQUIRE THAT THE GOVERNMENT BE DENIED THE INFORMATION
IT WANTED SIMPLY BECAUSE IT HAD SOUGHT IT BY WAY OF CIVIL-DISCOVERY
PROCEDURES.  ON SEPTEMBER 5, 1961, IN COMPLIANCE WITH THE COURT'S
DIRECTIVE, THE CORPORATION, THROUGH THE RESPONDENT FELDTEN, ANSWERED
THE GOVERNMENT'S INTERROGATORIES. 

ON JULY 28, 1961, FIVE WEEKS AFTER THE DISTRICT COURT'S ORDER BUT
MORE THAN A MONTH BEFORE RECEIPT OF THE ANSWERS TO THE INTERROGATORIES,
THE DIRECTOR OF THE FDA'S DETROIT OFFICE RECOMMENDED A CRIMINAL
PROSECUTION TO THE DIVISION.  THE DIVISION FORWARDED THE RECOMMENDATION
TO THE GENERAL COUNSEL ON AUGUST 31, 1961, STILL PRIOR TO RECEIPT OF
FELDTEN'S ANSWERS.  WHILE THE MATTER WAS PENDING IN THE GENERAL
COUNSEL'S OFFICE, THE DIVISION OFFICER WHO HAD ORIGINALLY DRAFTED THE
PROPOSED INTERROGATORIES RECOMMENDED THAT ADDITIONAL VIOLATIONS OF
STATUTE BE ALLEGED IN THE INDICTMENT.  ON JUNE 13, 1962, THE DEPARTMENT
OF HEALTH, EDUCATION, AND WELFARE REQUESTED THE DEPARTMENT OF JUSTICE
TO INSTITUTE A CRIMINAL PROCEEDING, AND ABOUT TWO MONTHS AFTER THAT THE
LATTER DEPARTMENT INSTRUCTED THE UNITED STATES ATTORNEY IN DETROIT TO
SEEK AN INDICTMENT.  THE CIVIL CASE, STILL PENDING IN THE DISTRICT
COURT, PROCEEDED TO SETTLEMENT BY WAY OF A CONSENT DECREE IN NOVEMBER
1962, AND EIGHT MONTHS LATER THE GOVERNMENT OBTAINED THE INDICTMENT
UNDERLYING THE PRESENT JUDGMENTS OF CONVICTION. 

I 

AT THE OUTSET, WE ASSUME THAT THE INFORMATION FELDTEN SUPPLIED THE
GOVERNMENT IN HIS ANSWERS TO THE INTERROGATORIES, IF NOT NECESSARY TO
THE PROOF OF THE GOVERNMENT'S CASE IN THE CRIMINAL PROSECUTION, AS THE
COURT OF APPEALS THOUGHT, AT LEAST PROVIDED EVIDENCE OR LEADS USEFUL TO
THE GOVERNMENT.  /6/  HOWEVER, THE RECORD AMPLY SUPPORTS THE EXPRESS
FINDING OF THE DISTRICT JUDGE WHO PRESDIED AT THE CRIMINAL TRIAL, AND
WHO HELD AN EXTENSIVE EVIDENTIARY HEARING ON THE RESPONDENT'S PRETRIAL
MOTION TO SUPPRESS EVIDENCE, THAT THE GOVERNMENT DID NOT ACT IN BAD
FAITH IN FILING THE INTERROGATORIES.  RATHER, THE TESTIMONY BEFORE THE
TRIAL COURT DEMONSTRATED THAT THE DIVISION OF REGULATORY MANAGEMENT
REGULARLY PREPARES SUCH INTERROGATORIES UPON THE RECEIPT OF CLAIMANT'S
ANSWERS TO CIVIL LIBELS, AND FILES THEM IN OVER THREE-FOURTHS OF SUCH
CASES, TO HASTEN THEIR DISPOSITION BY SECURING ADMISSIONS AND LAYING
THE FOUNDATION FOR SUMMARY JUDGMENTS. 

THE COURT OF APPEALS THOUGHT THE ANSWERS TO THE INTERROGATORIES WERE
INVOLUNTARILY GIVEN.  THE DISTRICT JUDGE'S ORDER DENYING THE
CORPORATION'S MOTION TO DEFER THE ANSWERS TO THE INTERROGATORIES,
REASONED THE COURT, LEFT THE RESPONDENTS WITH THREE CHOICES:  THEY
COULD HAVE REFUSED TO ANSWER, THEREBY FORFEITING THE CORPORATION'S
PROPERTY THAT WAS THE SUBJECT OF THE LIBEL; THEY COULD HAVE GIVEN FALSE
ANSWERS TO THE INTERROGATORIES, THEREBY SUBJECTING THEMSELVES TO THE
RISK OF A PROSECUTION FOR PERJURY; OR THEY COULD HAVE DONE JUST WHAT
THEY DID-- DISCLOSE THE REQUESTED INFORMATION, THEREBY SUPPLYING THE
GOVERNMENT WITH EVIDENCE AND LEADS HELPFUL IN SECURING THEIR INDICTMENT
AND CONVICTION.  /7/ 

IN THIS ANALYSIS WE THINK THE COURT OF APPEALS ERRED.  FOR FELDTEN
NEED NOT HAVE ANSWERED THE INTERROGATORIES.  WITHOUT QUESTION HE COULD
HAVE INVOKED HIS FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION.  /8/ SURELY FELDTEN WAS NOT BARRED FROM ASSERTING HIS
PRIVILEGE SIMPLY BECAUSE THE CORPORATION HAD NO PRIVILEGE OF ITS OWN,
/9/  OR BECAUSE THE PROCEEDING IN WHICH THE GOVERNMENT SOUGHT
INFORMATION WAS CIVIL RATHER THAN CRIMINAL IN CHARACTER.  /10/ 

TO BE SURE, SERVICE OF THE INTERROGATORIES OBLIGED THE CORPORATION
TO "APPOINT AN AGENT WHO COULD, WITHOUT FEAR OF SELF-INCRIMINATION,
FURNISH SUCH REQUESTED INFORMATION AS WAS AVAILABLE TO THE
CORPORATION."  /11/  THE CORPORATION COULD NOT SATISFY ITS OBLIGATION
UNDER RULE 33 SIMPLY BY POINTING TO AN AGENT ABOUT TO INVOKE HIS
CONSTITUTIONAL PRIVILEGE.  "IT WOULD INDEED BE INCONGRUOUS TO PERMIT A
CORPORATION TO SELECT AN INDIVIDUAL TO VERIFY THE CORPORATION'S ANSWER,
WHO BECAUSE HE FEARS SELF-INCRIMINATION MAY THUS SECURE FOR THE
CORPORATION THE BENEFITS OF A PRIVILEGE IT DOES NOT HAVE."  /12/  SUCH
A RESULT WOULD EFFECTIVELY PERMIT THE CORPORATION TO ASSERT ON ITS OWN
BEHALF THE PERSONAL PRIVILEGE OF ITS INDIVIDUAL AGENTS.  /13/ 

THE RESPONDENTS PRESS UPON THE SITUATION WHERE NO ONE CAN ANSWER THE
INTERROGATORIES ADDRESSED TO THE CORPORATION WITHOUT SUBJECTING HIMSELF
TO A "REAL AND APPRECIABLE" RISK OF SELF-INCRIMINATION.  /14/  FOR
PRESENT PURPOSES WE MAY ASSUME THAT IN SUCH A CASE THE APPROPRIATE
REMEDY WOULD BE A PROTECTIVE ORDER UNDER RULE 30(B), POSTPONING CIVIL
DISCOVERY UNTIL TERMINATION OF THE CRIMINAL ACTION.  /15/  BUT WE NEED
NOT DECIDE THIS TROUBLESOME QUESTION.  FOR THE RECORD BEFORE US MAKES
CLEAR THAT EVEN THOUGH THE RESPONDENTS HAD THE BURDEN OF SHOWING THAT
THE GOVERNMENT INTERROGATORIES WERE IMPROPER, /16/ THEY NEVER EVEN
ASSERTED, LET ALONE DEMONSTRATED, THAT THERE WAS NO AUTHORIZED PERSON
WHO COULD ANSWER THE INTERROGATORIES WITHOUT THE POSSIBILITY OF
COMPULSORY SELF-INCRIMINATION.  /17/  TO THE CONTRARY, THE RECORD SHOWS
THAT NOBODY ASSOCIATED WITH THE CORPORATION ASSERTED HIS PRIVILEGE AT
ALL.  THE RESPONDENTS DO NOT SUGGEST THAT FELDTEN, WHO ANSWERED THE
INTERROGATORIES ON BEHALF OF THE CORPORATION, DID SO WHILE
UNREPRESENTED BY COUNSEL OR WITHOUT APPRECIATION OF THE POSSIBLE
CONSEQUENCES.  HIS FAILURE AT ANY TIME TO ASSERT THE CONSTITUTIONAL
PRIVILEGE LEAVES HIM IN NO POSITION TO COMPLAIN NOW THAT HE WAS
COMPELLED TO GIVE TESTIMONY AGAINST HIMSELF.  /18/ 

KORDEL'S CLAIM OF COMPULSORY SELF-INCRIMINATION IS EVEN MORE TENUOUS
THAN FELDTEN'S.  NOT ONLY DID KORDEL NEVER ASSERT THE PRIVILEGE; HE
NEVER EVEN ANSWERED ANY INTERROGATORIES.  THE COURT OF APPEALS
NEVERTHELESS REVERSED HIS CONVICTION BECAUSE IT THOUGHT IT "CLEAR FROM
THE RECORD THAT DETROIT VITAL FOODS, INC., WAS MERELY THE CORPORATE
DEVICE THROUGH WHICH KORDEL SOLD HIS PRODUCTS.  THE GOVERNMENT
NATURALLY WANTED TO CUT THROUGH THE FACADE AND GET TO KORDEL WHO WAS
THE PRESIDENT AND DOMINANT PERSONALTIY IN THE CORPORATION."  /19/  WE
DISAGREE.  THE GOVERNMENT BROUGHT ITS LIBEL AGAINST THE GOODS; THE
CORPORATION, NOT KORDEL, APPEARED AS CLAIMANT.  THE GOVERNMENT
SUBSEQUENTLY PROSECUTED KORDEL AS AN OFFICER OF THE COMPANY.  IF ANYONE
HAS SOUGHT TO CUT THROUGH THE CORPORATE FACADE SO FAR AS THE FIFTH
AMENDMENT PRIVILEGE IS CONCERNED, IT IS KORDEL:  HE HAS, IN EFFECT,
ATTEMPTED TO FASHION A SELF-INCRIMINATION CLAIM BY COMBINING TESTIMONY
THAT HE NEVER GAVE AND AN ASSERTION OF THE PRIVILEGE THAT HE NEVER MADE
WITH ANOTHER ASSERTION OF THE PRIVILEGE THAT HIS COMPANY NEVER HAD. 

THE COURT OF APPEALS THOUGHT THAT KORDEL MUST GO FREE IN ANY EVENT
BECAUSE THE GOVERNMENT HAD USED FELDTEN'S ADMISSIONS IN PROVING ITS
CRIMINAL CASE AGAINST BOTH RESPONDENTS, IN VIOLATION OF THE RULE IN
BRUTON V. UNITED STATES.  /20/  THIS TOO WAS ERROR.  FELDTEN'S
ADMISSIONS WERE NEVER INTRODUCED IN EVIDENCE AT THE TRIAL, AND THUS
KORDEL CANNOT MAINTAIN THAT THE RECEPTION IN EVIDENCE OF A
CODEFENDANT'S INCULPATORY STATEMENTS VIOLATED HIS SIXTH AMENDMENT RIGHT
TO CONFRONTATION.  /21/

        II 

THE RESPONDENTS URGE THAT EVEN IF THE GOVERNMENT'S CONDUCT DID NOT
VIOLATE THEIR FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION, IT NONETHELESS REFLECTED SUCH UNFAIRNESS AND WANT OF
CONSIDERATION FOR JUSTICE AS INDEPENDENTLY TO REQUIRE THE REVERSAL OF
THEIR CONVICTIONS.  ON THE RECORD BEFORE US, WE CANNOT AGREE THAT THE
RESPONDENTS DUE PROCESS OR A DEPARTURE FROM PROPER STANDARDS IN THE
ADMINISTRATION OF JUSTICE REQUIRING THE EXERCISE OF OUR SUPERVISORY
POWER.  THE PUBLIC INTEREST IN PROTECTING CONSUMERS THROUGHOUT THE
NATION FROM MISBRANDED DRUGS REQUIRES PROMPT ACTION BY THE AGENCY
CHARGED WITH RESPONSIBILITY FOR ADMINISTRATION OF THE FEDERAL FOOD AND
DRUG LAWS.  BUT A RATIONAL DECISION WHETHER TO PROCEED CRIMINALLY
AGAINST THOSE RESPONSIBLY FOR THE MISBRANDING MAY HAVE TO AWAIT
CONSIDERATION OF A FULLER RECORD THAN THAT BEFORE THE AGENCY AT THE
TIME OF THE CIVIL SEIZURE OF THE OFFENDING PRODUCTS.  IT WOULD STULTIFY
ENFORCEMENT OF FEDERAL LAW TO REQUIRE A GOVERNMENTAL ABENCY SUCH AS THE
FDA INVARIABLY TO CHOOSE EITHER TO FORGO RECOMMENDATION OF A CRIMINAL
PROSECUTION ONCE IT SEEKS CIVIL RELIEF, OR TO DEFER CIVIL PROCEEDINGS
PENDING THE ULTIMATE OUTCOME OF A CRIMINAL TRIAL.  /22/ 

WE DO NOT DEAL HERE WITH A CASE WHERE THE GOVERNMENT HAS BROUGHT A
CIVIL ACTION SOLELY TO OBTAIN EVIDENCE FOR ITS CRIMINAL PROCESUTION
/23/  OR HAS FAILED TO ADVISE THE DEFENDANT IN ITS CIVIL PROCEEDING
THAT IT CONTEMPLATES HIS CRIMINAL PROSECUTION; /24/ NOR WITH A CASE
WHERE THE DEFENDANT IS WITHOUT COUNSEL /25/  OR REASONABLY FEARS
PREJUDICE FROM ADVERSE PRETRIAL PUBLICITY OR OTHER UNFAIR INJURY; /26/
NOR WITH ANY OTHER SPECIAL CIRCUMSTANCES THAT MIGHT SUGGEST THE
UNCONSTITUTIONALITY OR EVEN THE IMPROPRIETY OF THIS CRIMINAL
PROSECUTION.  /27/     OVERTURNING THESE CONVICTIONS WOULD BE
TANTAMOUNT TO THE ADOPTION OF A RULE THAT THE GOVERNMENT'S USE OF
INTERROGATORIES DIRECTED AGAINST A CORPORATE DEFENDANT IN THE ORDINARY
COURSE OF A CIVIL PROCEEDING WOULD ALWAYS IMMUNIZE THE CORPORATION'S
OFFICERS FROM SUBSEQUENT CRIMINAL PROSECUTION.  THE COURT OF APPEALS
WAS CORRECT IN STATING THAT "THE GOVERNMENT MAY NOT USE EVIDENCE
AGAINST A DEFENDANT IN A CRIMINAL CASE WHICH HAS BEEN COERCED FROM HIM
UNDER PENALTY OF EITHER GIVING THE EVIDENCE OR SUFFERING A FORFEITURE
OF HIS PROPERTY."  /28/  BUT ON THIS RECORD THERE WAS NO SUCH VIOLATION
OF THE CONSTITUTION, AND NO SUCH DEPARTURE FROM THE PROPER
ADMINISTRATION OF CRIMINAL JUSTICE. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND
THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  52 STAT. 1040, 21 U.S.C. 301 ET SEQ. 

/2/  UNITED STATES V. DETROIT VITAL FOODS, INC., 407 F.2D 570.  THE
COURT OF APPEALS INITIALLY REVERSED THE JUDGMENTS OF CONVICTION OF ALL
THREE DEFENDANTS, BUT ON THE GOVERNMENT'S PETITION FOR REHEARING IT
AFFIRMED WITH RESPECT TO THE CORPORATION. 

/3/  395 U.S. 932. 

/4/  RULE 33 PROVIDES IN PERTINENT PART:  "ANY PARTY MAY SERVE UPON
ANY ADVERSE PARTY WRITTEN INTERROGATORIES TO BE ANSWERED BY THE PARTY
SERVED OR, IF THE PARTY SERVED IS A PUBLIC OR PRIVATE CORPORATION OR A
PARTNERSHIP OR ASSOCIATION, BY ANY OFFICER OR AGENT, WHO SHALL FURNISH
SUCH INFORMATION AS IS AVAILABLE TO THE PARTY." 

/5/  SECTION 305 OF THE ACT, 21 U.S.C. 335, PROVIDES: 

"BEFORE ANY VIOLATION OF (THE ACT) . . . IS REPORTED BY THE
SECRETARY (OF THE DEARTMENT OF HEALTH, EDUCATION, AND WELFARE) TO ANY
UNITED STATES ATTORNEY FOR INSTITUTION OF A CRIMINAL PROCEEDING, THE
PERSON AGAINST WHOM SUCH PROCEEDING IS CONTEMPLATED SHALL BE GIVEN
APPROPRIATE NOTICE AN AN OPPORTUNITY TO PRESENT HIS VIEWS EITHER ORALLY
OR IN WRITING, WITH REGARD TO SUCH CONTEMPLATED PROCEEDING."  SERVICE
OF THE STATUTORY NOTICE DID NOT NECESSARILY MEAN THAT A CRIMINAL
PROSECUTION WOULD FOLLOW; THE TESTIMONY BEFORE THE DISTRICT COURT ON
THE RESPONDENT'S PRETRIAL MOTION TO SUPPRESS EVIDENCE INDICATED THAT
FEWER THAN 10% OF THE MATTERS INVOLVING A SEC. 305 NOTICE REACH THE
STAGE OF EITHER INDICTMENT OR INFORMATION. 

/6/  COMPARE 407 F.2D, AT 575, WITH ID., AT 572. 

/7/  ID., AT 573. 

/8/  WILSON V. UNITED STATES, 221 U.S. 361, 377, 385; BOYD V. UNITED
STATES, 116 U.S. 616, 633-635; CF. UNITED STATES V. 42 JARS . . . "BEE
ROYALE CAPSULES," 162 F.SUPP.  944, 946, AFF'D, 264 F.2D 666. 

/9/  CURCIO V. UNITED STATES, 354 U.S. 118, 124; WILSON V. UNITED
STATES, SUPRA, AT 385; UNITES STATES V. 3963 BOTTLES . . . OF . . .
"ENERJOL DOUBLE STRENGTH," 265 F.2D 332, 335-336, CERT. DENIED, 360
U.S. 931; UNITED STATES V. 30 INDIVIDUALLY CARTONED JARS . . . "AHEAD
HAIR RESTORER . . . , " 43 F.R.D. 181, 187; CF. SHAPIRO V. UNITED
STATES, 335 U.S. 1, 27.  THAT THE CORPORATION HAS NO PRIVILEGE IS OF
COURSE LONG ESTABLISHED, AND NOT DISPUTED HERE.  SEE GEORGE CAMPBELL
PAINTING CORP. V. REID, 392 U.S. 286, 288-289; OKLAHOMA PRESS PUB CO.
V. WALLING, 327 U.S. 186, 196, 208, 209-210; UNITED STATES V. BAUSCH &
LOMB OPTICAL CO., 321 U.S. 707, 726-727; ESSGEE CO. V. UNITED STATES,
262 U.S. 151, 155-156; WHEELER V. UNITED STATES, 226 U.S. 478, 489-490;
BALTIMORE & OHIO R. CO. V. ICC, 221 U.S. 612, 622-623; HALE V. HENKEL,
201 U.S. 43, 74-75; CF. CURCIO V. UNITED STATES, SUPRA; UNITED STATES
V. WHITE, 322 U.S. 694, 698, 705. 

/10/  GARDNER V. BRODERICK, 392 U.S. 273, 276; MCCARTHY V.
ARNDSTEIN, 266 U.S. 34, 40; COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562,
563-564; BOYD V. UNITED STATES, SUPRA; UNITED STATES V. SALINE BANK, 1
PET. 100, 104; 8 J. WIGMORE, EVIDENCE SEC. 2257, PP. 339-340
(MCNAUGHTON REV. 1961); C. MCCORMICK, EVIDENCE SEC. 123, P. 259
(1954). 

/11/  UNITED STATES V. 3963 BOTTLES . . . OF . . . "ENERJOL DOUBLE
STRENGTH," SUPRA, AT 336; CF. UNITED STATES V. 48 JARS . . .
"TRANSQUILEASE," 23 F.R.D. 192, 195, 196; 2A W. BARRON & A. HOLTZOFF,
FEDERAL PRACTICE AND PROCEDURE SEC. 651, P. 101 (WRIGHT ED. 1961). 

/12/  UNITED STATES V. 3963 BOTTLES . . . OF . . . "ENERJOL DOUBLE
STRENGTH," SUPRA, AT 336. 

/13/  CF. GEROGE CAMPBELL PAINTING CORP. V. REID, SUPRA, AT 289;
HALE V. HENKEL, SUPRA, AT 69-70. 

/14/  CF. MINOR V. UNITED STATES, 396 U.S. 87, 98; LEARY V. UNITED
STATES, 395 U.S. 6, 16; MARCHETTI V. UNITED STATES, 390 U.S. 39, 48;
MASON V. UNITED STATES, 244 U.S. 362, 365. 

/15/  SEE PAUL HARRIGAN & SONS V. ENTERPRISE ANIMAL OIL CO., 14
F.R.D. 333. 

/16/  LUCY V. STERLING DRUG, INC., 240 F.SUPP.  632, 634; GLICK V.
MCKESSON & ROBBINS, INC., 10 F.R.D. 477, 479, 480; BOWLES V. SAFEWAY
STORES, INC., 4 F.R.D. 469, 470; BLANC V. SMITH, 3 F.R.D. 182, 183. 
THE RESPONDENTS, URGING THAT THE GOVERNMENT HAD THE BURDEN OF
ESTABLISHING THE AVAILABILITY OF AN AGENT TO ANSWER FOR THE
CORPORATION, RELY UPON THE DECISION OF THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT IN COMMUNIST PARTY V. UNITED STATES, 118
U.S.APP.D.C. 61, 331 F.2D 807, CERT. DENIED, 377 U.S. 968.  BUT THERE
THE COURT DEPARTED FROM THE CUSTOMARY ALLOCATION OF THE BURDEN ON THE
GROUND THAT THE MERE ACT OF VOLUNTEERING THE INFORMATION SOUGHT, OR
EVEN OF SHOWING THAT AN EFFORT HAD BEEN MADE TO FIND SOMEONE WHO WOULD
ANSWER, WAS ITSELF POTENTIALLY INCRIMINATORY.  ID., AT 68-69, 331 F.2D,
AT 814-815. 

/17/  SEE UNITED STATES V. AMERICAN RADIATOR & STANDARD SANITARY
CORP., 388 F.2D 201, 204, CERT. DENIED, 390 U.S. 922; UNITED STATES V.
SIMON, 373 F.2D 649, 653, CERT. GRANTED SUB NOM. SIMON V. WHARTON, 386
U.S. 1030, VACATED AS MOOT, 389 U.S. 425; BUT SEE NATIONAL DISCOUNT
CORP. V. HOLZBAUGH, 13 F.R.D. 236, 237. 

/18/ GARDNER V. BRODERICK, 392 U.S. 273; ROGERS V. UNITED STATES,
340 U.S. 367, 372-375; UNITED STATES V. MONIA, 317 U.S. 424, 427;
VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273 U.S. 103, 113; BROWN V.
WALKER, 161 U.S. 591, 597. 

/19/  407 F.2D,AT 575. 

/20/  391 U.S. 123.  SEE 407 F.2D,AT 575. 

/21/  SEE BRUTON V. UNITED STATES, SUPRA, AT 126. 

/22/  CF. STANDARD SANITARY MFG. CO. V. UNITED STATES, 226 U.S. 20,
51-52 (SHERMAN ACT). 

/23/  CF. UNITED STATES V. PROCTER & GAMBLE CO., 356 U.S. 677, 683
684; UNITED STATES V. PENNSALT CHEMICALS CORP., 260 F.SUPP.  171; AND
SEE UNITED STATES V. THAYER, 214 F.SUPP.  929; BEARD V. NEW YORK
CENTRAL R. CO., 20 F.R.D. 607. 

/24/  SEE SMITH V. KATZENBACH, 122 U.S.APP.D.C. 113, 114-116, 351 F.
2D 810, 811-813; UNITED STATES V. LIPSHITZ, 132 F.SUPP.  519, 523;
UNITED STATES V. GUERRINA, 112 F. SUPP. 126, 128. 

/25/  CF. NELSON V. UNITED STATES, 93 U.S.APP.D.C. 14, 19, 21, AND
N. 19, 208 F.2D 505, 510, 512, AND N. 19, CERT. DENIED, 346 U.S. 827. 

/26/  CF. UNITED STATES V. AMERICAN RADIATOR & STANDARD SANITARY
CORP., 388 F.2D 201, 204-205, CERT. DENIED, 390 U.S. 922. 

/27/  FEDERAL COURTS HAVE DEFERRED CIVIL PROCEEDINGS PENDING THE
COMPLETION OF PARALLEL CRIMINAL PROSECUTIONS WHEN THE INTERESTS OF
JUSTICE SEEMED TO REQUIRE SUCH ACTION, SOMETIMES AT THE REQUEST OF THE
PROSECUTION.  CAMPBELL V. EASTLAND, 307 F.2D 478, CERT. DENIED, 371
U.S. 955; UNITED STATES V. BRIDGES, 86 F.SUPP.  931, 933; UNITED STATES
V. 30 INIDIVIDUALLY CARTONED JARS . . . "AHEAD HAIR RESTORER . . . , "
43 F.R.D. 181, 187, N. 8; UNITED STATES V. ONE 1964 CADILLAC COUPE
DEVILLE, 41 F.R.D. 352, 353-354; UNITED STATES V. $2,437 UNITED STATES
CURRENCY, 36 F.R.D. 257, UNITED STATES V. STEFFES, 35 F.R.D. 24; UNITED
STATES V. MAINE LOBSTERMEN'S ASSN., 22 F.R.D. 199; UNITED STATES V.
CIGARETTE MERCHANDISERS ASSN., 18 F.R.D. 497; UNITED STATES V. LINEN
SUPPLY INSTITUTE, 18 F.R.D. 452; SOMETIMES AT THE REQUEST OF THE
DEFENSE, KAEPPLER V. JAS. H. MATTHEWS & CO., 200 F.SUPP.  229; PERRY V.
MCGUIRE, 36 F.R.D. 272; CF. NICHOLS V. PHILADELPHIA TRIBUNE CO., 22
F.R.D. 89, 92. 

/28/  407 F.2D, AT 575-576. 

MR. JUSTICE BLACK DID NOT TAKE PART IN THE DECISION OF THIS CASE. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WILSON, BEATRICE ROSENBERG, AND ROGER A. PAULEY. 

SOLOMON H. FRIEND ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS SHELDON S. LUSTIGMAN. 
..END :



UNITED STATES V. REYNOLDS, 397 U.S. 14 


       UNITED STATES V. REYNOLDS ET UX.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

  SIXTH CIRCUIT. 

        NO. 88.  ARGUED JANUARY 14, 1970-- DECIDED FEBRUARY 24,

           1970 


THE RIGHT TO A JURY TRIAL AFFORDED BY FED. RULE.  CIV.  ROC. 71AH) IN
A FEDERAL EMINENT DOMAIN PROCEEDING ON THE ISSUE OF JUST COMPENSATION,
DOES NOT EXTEND TO THE QUESTION WHETHER THE CONDEMNED "LANDS WERE
PROBABLY WITHIN THE SCOPE OF THE PROJECT FROM THE TIME THE GOVERNMENT
WAS COMMITTED TO IT" (EITHER BY THE ORIGINAL PLANS OR DURING THE COURSE
OF PLANNING OR ORIGINAL CONSTRUCTION), AND THAT QUESTION IS FOR THE
TRIAL JUDGE TO DECIDE.  PP. 15.21. 

404 F.2D 303, VACATED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS SUIT IN THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF KENTUCKY TO CONDEMN MORE THAN 250
ACRES OF THE RESPONDENTS' LAND FOR A FEDERAL DEVELOPMENT KNOWN AS THE
NOLIN RESERVOIR PROJECT LOCATED IN THAT STATE.  AN IMPORTANT ISSUE IN
THE CASE WAS RAISED BY THE RESPONDENTS' CALIM THAT 78 ACRES OF THE
LAND, TAKEN FOR CONSTRUCTION OF RECREATIONAL FACILITIES ADJACENT TO THE
RESERVOIR, HAD NOT BEEN WITHIN THE ORIGINAL SCOPE OF THE PROJECT.  /1/
A JURY AWARDED THE RESPONDENTS $20,000 AS JUST COMPENSATION FOR ALL THE
LAND TAKEN.  UPON AN APPEAL BY THE RESPONDENTS, THE COURT OF APPEALS
FOR THE SIXTH CIRCUIT REVERSED THE JUDGMENT AND ORDERED A NEW TRIAL,
FINDING THAT THE DISTRICT JUDGE IN HIS INSTRUCTIONS TO THE JURY HAD
ERRONEOUSLY REFERRED TO MATTERS DISCLOSED OUTSIDE THE JURY'S PRESENCE. 
/2/  THE TRIAL AND APPELLATE COURTS WERE IN AGREEMENT, HOWEVER, IN
REJECTING THE GOVERNMENT'S CONTENTION THAT THE "SCOPE-OF-THE-PROJECT"
ISSUE WAS FOR THE TRIAL JUDGE TO DECIDE AND SHOULD NOT, THEREFORE, HAVE
BEEN SUBMITTED TO THE JURY AT ALL.  THERE BEING A CONFLICT BETWEEN THE
CIRCUITS ON THIS QUESTION, /3/  WE GRANTED CERTIORARI TO CONSIDER A
RECURRING PROBLEM OF IMPROTANCEIN FEDERAL CONDEMNATION PROCEEDINGS. 
396 U.S. 814. 

THE FIFTH AMENDMENT PROVIDES THAT PRIVATE PROPERTY SHALL NOT BE
TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION.  AND "JUST
COMPENSATION" MEANS THE FULL MONETARY EQUIVALENT OF THE PROPERTY
TAKEN.  /4/  THE OWNER IS TO BE PUT IN THE SAME POSITION MONETARILY AS
HE WOULD HAVE OCCUPIED IF HIS PROPERTY HAD NOT BEEN TAKEN.  /5/  IN
ENFORCING THE CONSTITUTIONAL MANDATE, THE COURT AT AN EARLY DATE
ADOPTED THE CONCEPT OF MARKET VALUE:  THE OWNER IS ENTITLED TO THE FAIR
MARKET VALUE FO THE PROPERTY /6/  AT THE TIME OF THE TAKING.  /7/  BUT
THIS BASIC MEASUREMENT OF COMPENSATION HAD BEEN HEDGED WITH CERTAIN
REFINEMENTS DEVELOPED OVER THE YEARS IN THE INTEREST OF EFFECTUATING
THE CONSTITUTIONAL GUARANTEE.  IT IS ONE OF THESE REFINEMENTS THAT IS
IN CONTROVERSY HERE. 

THE COURT EARLY RECOGNIZED THAT THE "MARKET VALUE" OF PROPERTY
CONDMENED CAN BE AFFECTED, ADVERSELY OR FAVORABLY, BY THE IMMINENCE OF
THE VERY PUBLIC PROJECT THAT MAKES THE CONDEMNATION NECESSARY.  /8/
AND IT WAS PERCEIVED THAT TO PERMIT COMPENSATION TO BE EITHER REDUCED
OR INCREASED BECAUSE OF AN ALTERATION IN MARKET VALUE ATTRIBUTABLE TO
THE PROJECT ITSELF WOULD NOT LEAD TO THE "JUST COMPENSATION" THAT THE
CONSTITUTION REQUIRES.  /9/  ON THE OTHER HAND, THE DEVELOPMENT OF A
PUBLIC PROJECT MAY ALSO LEAD TO ENHANCEMENT IN THE MARKET VALUE OF
NEIGHBORING LAND THAT IS NOT COVERED BY THE PROJECT ITSELF.  AND IF
THAT LAND IS LATER CONDEMNED, WHETHER FOR AN EXTENSION OF THE EXISTING
PROJECT OR FOR SOME OTHER PUBLIC PURPOSE, THE GENERAL RULE OF JUST
COMPENSATION REQUIRES THAT SUCG ENHANCEMENT IN VALUE BE WHOLLY TAKEN
INTO ACCOUNT, SINCE FAIR MARKET VALUE IS GENERALLY TO BE DETERMINED
WITH DUE CONSIDERATION OF ALL AVAILABLE ECONOMIC USES OF THE PROPERTY
AT THE TIME OF THE TAKING.  /10/ 

IN UNITED STATES V. MILLER, 317 U.S. 369, THE COURT GAVE FULL
ARTICULATION TO THESE PRINCIPLES: 

     "IF A DISTINCT TRACT IS CONDEMNED, IN WHOLE OR IN PART, OTHER

LANDS IN THE NEIGHBORHOOD MAY INCREASE IN MARKET VALUE DUE TO THE

  PROXIMITY OF THE PUBLIC IMPROVEMENT ERECTED ON THE LAND TAKEN. 

  SHOULD THE GOVERNMENT, AT A LATER DATE, DETERMINE TO TAKE THESE

  OTHER LANDS, IT MUST PAY THEIR MARKET VALUE AS ENHANCED BY THIS

  FACTOR OF PROXIMITY.  IF, HOWEVER, THE PUBLIC PROJECT FROM THE

  BEGINNING INCLUDED THE TAKING OF CERTAIN TRACTS BUT ONLY ONE OF

  THEM IS TAKEN IN THE FIRST INSTANCE, THE OWNER OF THE OTHER

  TRACTS SHOULD NOT BE ALLOWED AN INCREASED VALUE FOR HIS LANDS

  WHICH ARE ULTIMATELY TO BE TAKEN ANY MORE THAN THE OWNER OF THE

  TRACT FIRST CONDEMNED IS ENTITLED TO BE ALLOWED AN INCREASED

  MARKET VALUE BECAUSE ADJACENT LANDS NOT IMMEDIATELY TAKEN

  INCREASED IN VALUE DUE TO THE PROJECTED IMPROVEMENT. 

     "THE QUESTION THEN IS WHETHER THE RESPONDENTS' LANDS WERE

  PROBABLY WITHIN THE SCOPE OF THEPROJECT FROM THE TIME THE

  GOVERNMENT WAS COMMITTED TO IT.  IF THEY WERE NOT, BUT WERE

  MERELY ADJACENT LANDS, THE SUBSEQUENT ENLARGEMENT OF THE PROJECT

  TO INCLUDE THEM OUGHT NOT TO DEPRIVE THE RESPONDENTS OF THE VALUE

  ADDED IN THE MEANTIME BY THE PROXIMITY OF THE IMPROVEMENT.  IF,

  ON THE OTHER HAND, THEY WERE, THE GOVERNMENT OUGHT NOT TO PAY ANY

  INCREASE IN VALUE ARISING FROM THE KNOWN FACT THAT THE LANDS

WOULD PROBABLY BE CONDEMNED.  THE OWNERS OUGHT NOT TO GAIN BY

  SPECULATING ON PROBABLY INCREASE IN VALUE DUE TO THE GOVERNMENT'S

  ACTIVITIES." 

317 U.S., AT 376-377. 

THERE IS NO CONTROVERSY IN THE PRESENT CASE REGARDING THESE BASIC
PRINCIPLES.  THE PARTIES AGREE THAT IF THE ACREAGE IN ISSUE WAS
"PROBABLY WITHIN THE SCOPE OF THE PROJECT FROM THE TIME THE GOVERNMENT
WAS COMMITTED TO IT," SUBSTANTIALLY LESS COMPENSATION IS DUE THAN IF IT
WAS NOT.  FOR IT THE PROPERTY WAS PROBABLY WITHIN THE PROJECT'S
ORIGINAL SCOPE, THEN ITS COMPENSABLE VALUE IS TO BE MEASURED IN TERMS
OF AGRICULTURAL USE.  IF, ON THE OTHER HAD, THE ACREAGE WAS OUTSIDE THE
ORIGINAL SCOPE OF THE PROJECT, ITS COMPENSABLE VALUE IS PROPERLY
MEASURABLE IN TERMS OF ITS ECONOMIC POTENTIAL AS LAKESIDE RESIDENTIAL
OR RECREATIONAL PROPERTY. 

THE ISSUE BETWEEN THE PARTIES IS SIMPLY WHETHER THE "SCOPE-OF-THE
PROJECT" QUESTION IS TO BE DETERMINED BY THE TRIAL JUDGE OR BY THE
JURY.  THERE IS NO CLIAM THAT THE ISSUE IS OF CONSTITUTIONAL
DIMENSIONS.  FOR IT HAS LONG BEEN SETTLED THAT THERE IS NO
CONSTITUTIONAL RIGHT TO A JURY IN EMINENT DOMAIN PROCEEDINGS.  SEE
BAUMAN V. ROSS, 167 U.S. 548, 593.  AS PROFESSOR MOORE HAS PUT THE
MATTER: 

     "THE PRACTICE IN ENGLAND AND IN THE COLONIES PRIOR TO THE

  ADOPTION IN 1791 OF THE SEVENTH AMENDMENT, THE POSITION TAKEN BY

  CONGRESS CONTEMPORANEOUSLY WITH, AND SUBSEQUENT TO, THE ADOPTION

  OF THE AMENDMENT, AND THE POSITION TAKEN BY THE SUPREME COURT AND

  NEARLY ALL OF THE LOWER FEDERAL COURTS LEAD TO THE CONCLUSION

  THAT THERE IS NO CONSTITUTIONAL RIGHT TO JURY TRIAL IN THE

  FEDERAL COURTS IN AN ACTION FOR THE CONDEMNATION OF PROPERTY

  UNDER THE POWER OF EMINENT DOMAIN."  /11/ 

IT IS NOT, THEREFORE, TO THE SEVENTH AMENDMENT THAT WE LOOK IN THIS
CASE, BUT TO THE FEDERAL RULES OF CIVIL PROCEDURE.  RULE 71AH) PROVIDES
THAT, EXCEPT IN CIRCUMSTANCES NOT APPLICABLE HERE, "ANY PARTY" TO A
FEDERAL EMINENT DOMAIN PROCEEDING "MAY HAVE A TRIAL BY JURY OF THE
ISSUE OF JUST COMPENSATION," UNLESS THE COURT IN ITS DISCRETION ORDERS
THAT THAT ISSUE "SHALL BE DETERMINED BY A COMMISSION OF THREE PERSONS
APPOINTED BY IT . . . TRIAL OF ALL ISSUES SHALL OTHERWISE BE BY THE
COURT.  /12/  THE RULE THUS PROVIDES THAT, EXCEPT FO RTHE SINGLE ISSUE
OF JUST COMPENSATION, THE TRIAL JUDGE IS TO DECIDE ALL ISSUES, LEGAL
AND AFACTUAL, THAT MAY BE PRESENTED.  THE CRITICAL INQUIRY IS THUS
WHETHER "THE ISSUE OF JUST COMPENSATION," AS THAT PHRASE IS USED IN THE
RULE, IS BROAD ENOUGH TO EMBRACE THE QUESTION WHETHER THE CONDEMNED
PROPERTY WAS PROBABLY WITHIN THE SCOPE OF THE FEDERAL PROJECT.  /13/ 

ALTHOUGH THE MATTER COULD BE DECIDED EITHER WAY WITHOUT DOING
VIOLENCE TO THE LANGUAGE OF RULE 71AH), WE THINK THE RULE'S BASIC
STRUCTURE MAKES CLEAR THAT A JURY IN FEDERAL CONDEMNATION PROCEEDINGS
IS TO BE CONFINED TO THE PERFORMANCE OF A SINGLE NARROW BUT IMPORTANT
FUNCTION-- THE DETERMINATION OF A COMPENSATION AWARD WITHIN GROUND
RULES ESTABLISHED BY THE TRIAL JUDGE.  THE RULE GIVES THE TRIAL COURT
DISCRETION TO ELIMINATE A JURY ENTIRELY.  AND WHEN A JURY IS AFFORDED,
THE SWEEPING LANGUAGE OF THE FINAL SENTENCE OF THE RULE DISCLOSES A
CLEAR INTENT TO GIVE THE DISTRICT JUDGE A ROLE IN CONDEMNATION
PROCEEDINGS MUCH BROADER THAN HE OCCUPIES IN A CONVENTIONAL JURY
TRIAL.  IT IS FOR HIM TO DECIDE "ALL ISSUES"  OTHER THAN THE PRECISE
ISSUE OF THE AMOUNT OF COMPENSATION TO BE AWARDED.  IT FOLLOWS THAT IT
IS FOR THE JUDGE TO TELL THE JURY THE CRITERIA IT MUST FOLLOW IN
DETERMINING WHAT AMOUNT WILL CONSTITUTE JUST COMPENSATION, AND THAT IN
ORDER TO DO SO HE MUST DECIDE THE "SCOPE-OF-THE-PROJECT" ISSUE AS A
PRELIMINARY MATTER.  WE THEREFORE APPROVE AND ADOPT THE PROCEDURAL RULE
ANNOUNCED BY THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN WARDY V.
UNITED STATES, 402 F.2D 762, AND HOLD THAT IT IS FOR THE JUDGE AND NOT
THE JURY TO DECIDE WHETHER THE PROPERTY CONDEMNED WAS PROBABLY WITHIN
THE PROJECT'S ORIGINAL SCOPE.  /14/ 

FINALLY, THE GOVERNMENT ASKS US TO TAKE THIS OCCASION TO "CLARIFY"
THE "SCOPE-OF-THE-PROJECT" TEST.  WE THINK THE TEST WAS STATED WITH
ADMIRABLE CLARITY BY A UNANIMOUS COURT IN MILLER:  IF THE "LANDS WERE
PROBABLY WITHIN THE SCOPE OF THE PROJECT FROM THE TIME THE GOVERNMENT
WAS COMMITTED TO IT," NO ENHANCEMENT IN VALUE ATTRIBUTABLE TO THE
PROJECT IS TO BE CONSIDERED IN AWARDING COMPENSATION.  AS WITH ANY TEST
THAT DEALS IN PROBABILITIES, ITS APPLICATION TO ANY PARTICULAR SET OF
FACTS REQUIRES DISCRIMINATING JUDGMENT.  /15/  THE RULE DOES NOT
REQUIRE A SHOWING THAT THE LAND ULTIMATELY TAKEN WAS ACTUALLY SPECIFIED
IN THE ORIGINAL PLANS FOR THE PROJECT.  IT NEED ONLY BE SHOWN THAT
DURING THE COURSE OF THE PLANNING OR ORIGINAL CONSTRUCTION IT BECAME
EVIDENT THAT LAND SO SITUATED WOULD PROBABLY BE NEEDED FOR PUBLIC USE. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND THE CASE IS
REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF KENTUCKY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  CONGRESS AUTHORIZED THE NOLIN RESERVOIR PROJECT IN 1938 AS PART
OF A COMPREHENSIVE FLOOD CONTROL PLAN FOR THE OHIO AND MISSISSIPPI
RIVERS.  SEE ACT OF JUNE 28, 1938, SEC. 4, 52 STAT. 1217.  CONGRESS
FIRST APPROPRIATED FUNDS FOR THE PLANNING STAGE OF THE PROJECT IN
1956.  SEE PUBLIC WORKS APPROPRIATION ACT OF 1957, 70 STAT. 479.  IN
JULY 1958 THE CHIEF OF ARMY ENGINEERS APPROVED A GENERAL DESIGN
MEMORANDUM CONTEMPLATING THE CONSTRUCTION OF RECREATIONAL AREAS IN
CONNECTION WITH THE PROJECT, BUT EVIDENTLY NOT SPECIFYING WHERE THEY
WOULD BE.  THE FIRST FUNDS FOR CONSTRUCTION WERE APPROPRIATED IN 1958. 
SEE PUBLIC WORKS APPROPRIATION ACT OF 1959, 72 STAT. 1573. 
CONSTRUCTION BEGAN IN JANUARY 1959. 

MOST OF THE RESPONDENTS' ACREAGE CONDEMNED BY THE GOVERNMENT WA-
TAKEN BECAUSE IT WOULD BE INUNDATED BY THE RESERVOIR, AND THERE IS NO
QUESTION THAT THIS LAND WAS WITHIN THE ORIGINAL SCOPE OF THE PROJECT. 
BUT 78 ACRES OF THE TRACT WERE TAKEN FOR THE CONSTRUCTION OF
RECREATIONAL FACILITIES ADJACENT TO TE RESERVOIR ITSELF.  THESE 78
ACRES WERE NOT REFERRED TO IN A DESIGN MEMORANDUM SUBMITTED IN JUNE
1959.  THEY WERE, HOWEVER, DESIGNATED FOR TAKING IN A MEMORANDUM
APPROVED IN OCTOBER OF THAT YEAR.  IT HAS BEEN GOVERNMENT POLICY TO
BUILD RECREATIONAL AREAS IN CONJUNCTION WITH FEDERAL RESERVOIR PROJECTS
SINCE 1944.  ACT OF DECEMBER 22, 1944, SEC. 4, 58 STAT. 889. 

/2/  UNITED STATES V. 811.92 ACRES OF LAND, 404 F.2D 303. 

/3/  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS HELD THAT THE
"SCOPE-OF-THE-PROJECT" ISSUE IS TO BE DETERMINED BY THE TRIAL JUDGE. 
WARDY V. UNITED STATES, 402 F.2D 762, 763. 

/4/  MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312,
326. 

/5/  UNITED STATES V. NEW RIVER COLLIERIES CO., 262 U.S. 341, 343;
SEABOARD AIR LINE R. CO. V. UNITED STATES, 261 U.S. 299, 304. 

/6/  NEW YORK V. SAGE, 239 U.S. 57, 61; BOOM CO. V. PATTERSON, 98
U.S. 403, 408. 

/7/  KERR V. SOUTH PARK COMMISSIONERS, 117 U.S. 379, 386. 

/8/  SHOEMAKER V. UNITED STATES, 147 U.S. 282, 304-305. 

/9/  UNITED STATES V. VIRGINIA ELECTRIC & POWER CO., 365 U.S. 624,
635-636; UNITED STATES V. CORS, 337 U.S. 325, 332-334. 

/10/  UNITED STATES V. CHANDLER-DUNBAR WATER POWER CO., 229 U.S. 53,
81; BOOM CO. V. PATTERSON, SUPRA. 

/11/  5 J. MOORE, FEDERAL PRACTICE SEC. 38.32(1), P. 239 (2ND ED.
1969).  (FOOTNOTE OMITTED.) 

/12/  THE FULL TEST OF RULE 71AH) IS AS FOLLOWS: 

"IF THE ACTION INVOLVES THE EXERCISE OF THE POWER OF EMINENT DOMAIN
UNDER THE LAW OF THE UNITED STATES, ANY TRIBUNAL SPECIALLY CONSTITUTED
BY AN ACT OF CONGRESS GOVERNING THE CASE FOR THE TRIAL OF THE ISSUE OF
JUST COMPENSATION SHALL BE THE TRIBUNAL FOR THE DETERMINATION OF THAT
ISSUE; BUT IF THERE IS NO SUCH SPECIALLY CONSTITUTED TRIBUNAL ANY PARTY
MAY HAVE A TRIAL BU JURY OF THE ISSUE OF JUST COMPENSATION BY FILING A
DEMAND THEREFOR WITHIN THE TIME ALLOWED FOR ANSWER OR WITHIN SUCH
FURTHER TIME AS THE COURT MAY FIX, UNLESS THE COURT IN ITS DISCRETION
ORDERS THAT, BECAUSE OF THE CHARACTER, LOCATION, OR QUANTITY OF THE
PROPERTY TO BE CONDEMNED, OR FOR OTHER REASONS IN THE INTEREST OF
JUSTICE, THE ISSUE OF COMPENSATION SHALL BE DETERMINED BY A COMMISSION
OF THREE PERSONS APPOINTED BY IT.  IF A COMMISSION IS APPOINTED IT
SHALL HAVE THE POWERS OF A MASTER PROVIDED IN SUBDIVISION (C) OF RULE
53 AND PROCEEDINGS BEFORE IT SHALL BE GOVERNED BY THE PROVISIONS OF
PARAGRAPHS (1) AND (2) OF SUBDIVISION (D) OF RULE 53.  ITS ACTION AND
REPORT SHALL BE DETERMINED BY A MAJORITY AND ITS FINDINGS AND REPORT
SHALL HAVE THE EFFECT, AND BE DEALT WITH BY THE COURT IN ACCORDANCE
WITH THE PRACTICE, PRESCRIBED IN PARAGRAPH (2) OF SUBDIVISION (E) OF
RULE 53.  TRIAL OF ALL ISSUES SHALL OTHERWISE BE BY THE COURT." 
/13/  IN UNITED STATES V. MILLER, SUPRA, IT APPEARS THAT THAT QUESTION
WAS DECIDED BY THE TRIAL JUDGE, WHO EXCLUDED ALL EVIDENCE OF ENHANCED
VALUE ATTRIBUTABLE TO THE PROJECT.  317 U.S., AT 372-373.  WHILE THIS
COURT'S OPINION IN MILLER APPROVED OF THAT PROCEDURE, IT IS TO BE
REMEMBERED THAT THE CASE WAS DECIDED BEFORE THE ADOPTION OF RULE 71AH)
IN 1951, AT A TIME WHEN FEDERAL COURTS IN CONDEMNATION PROCEEDINGS
FOLLOWED THE PROCEDURES OF THE STATES IN WHICH THEY WERE LOCATED.  SEE
ADVISORY COMMITTEE NOTES TO RULE 71A; 7 J. MOORE, SUPRA, PARA. 71 A.03,
P. 2716 (2D ED. 1968).     /14/  "THE QUESTION WAS WHETHER APPELLANTS'
'LANDS WERE PROBABLY WITHIN THE SCOPE OF THE PROJECT FROM THE TIME THE
GOVERNMENT WAS COMMITTED TO IT.'  . . . APPELLANTS CONTEND THAT THE
JURY SHOULD HAVE BEEN ALLOWED TO ANSWER THIS QUESTION.  UNDER RULE
71AH) THE JURY'S FUNCTION IS LIMITED TO DETERMINING 'JUST
COMPENSATION.'  IT IS THE DUTY OF THE COURT TO DECIDE THE LEGAL ISSUES,
AS WELL AS ALL OTHER FACT ISSUES.  THUS, INSTEAD OF INFRINGING ON THE
JURY'S FUNCTIONS, THE JUDGE MERELY DECIDED A LEGAL QUESTION WHICH
LIMITED THE FACTORS NECESSARY TO THE DETERMINATION OF 'JUST
COMPENSATION.'"  WARDY V. UNITED STATES, 402 F.2D,AT 763.  SEE ALSO
SCOTT LUMBER CO. V. UNITED STATES, 390 F.2D 388, 392 (C.A. 9TH CIR.);
UNITED STATES V. 91.69 ACRES OF LAND, 334 F.2D 229, 231-232 (C.A. 4TH
CIR.). 

/15/  COMPARE JOHN L. ROPER LUMBER CO. V. UNITED STATES, 150 F.2D
329, 332, WITH SCOTT V. UNITED STATES, 146 F.2D 131, 132-133. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

ALL CONSTITUTIONAL QUESTIONS ASIDE, THERE WAS IN THE PRESENT CASE A
RIGHT TO TRIAL BY JURY ON "THE ISSUE OF JUST COMPENSATION" AS PROVIDED
IN RULE 71AH).  I DO NOT SEE HOW "THE ISSUE OF JUST COMPENSATION" CAN
BE DECIDED WITHOUT CONSIDERING WHETHER OR NOT THE PROPERTY WAS PROBABLY
WITHIN OR NOT WITHIN THE PROJECT'S ORIGINAL SCOPE.  AS THE OPINION OF
THE COURT MAKES PLAIN, IMPORTANT QUESTIONS OF VALUE TURN ON THAT
DECISION.  IN THIS CASE IT IS SEEN IN THE DIFFERENCE BETWEEN THE VALUE
OF THE PORPERTY AS AGRICULTURAL LAND AND ITS VALUE AS POTENTIAL
LAKESIDE RESIDENTIAL OR RECREATIONAL PROPERTY. 

IF IT WERE CERTAIN BEYOND DOUBT THAT THE PROPERTY WAS WITHIN THE
ORIGINAL SCOPE OF THE PROJECT, A DIFFERENT QUESTION MIGHT BE
PRESENTED.  BUT THERE IS NOTHING IN THIS RECORD TO SHOW THAT
RESPONDENTS' PROPERTY WAS INCLUDED IN THE ORIGINAL DESIGN.  WE DEAL
HERE WITH PROBABILITIES OR PERHAPS WITH POSSIBILITIES.  IF THE PROPERTY
WERE NOT WITHIN THE ORIGINAL DESIGN, A PURCHASER COULD REASONABLY
ANTICIPATE THAT HE WOULD BE ABLE TO DEVOTE THE LAND TO ITS HIGHEST
ECONOMIC USE REFLECTED IN PART BY ITS PROXIMITY TO THE GOVERNMENT'S
PROJECT.  HENRY GEORGE /1/  WOULD HAVE IT OTHERWISE; BUT THAT HAS NOT
BEEN THE DIRECTION OF OUR ECONOMY.  HENCE WHAT WE ARE TALKING ABOUT IS
MARKET VALUE AND THAT IN TURN INCLUDES ALL OF THE INGREDIENTS THAT MAKE
UP PRICE.  THE MOST CENTRAL ELEMENT OF PRICE IN THE AREA NOW LITIGATED
WAS THE RELATION OF THE LAND TO THE ORIGINAL PROJECT AND THAT ISSUE WAS
ONE OF FACT.  THE "ISSUE OF JUST COMPENSATION"  /2/ AS USED IN RULE
71AH) TRULY CANNOT BE RESOLVED WITHOUT CONSIDERING THAT QUESTION. 

THERE SEEMS TO BE NO QUESTION WHY THE JURY CHOSEN BY CONGRESS TO
DECIDE THE FINAL ISSUE OF "JUST COMPENSATION" SHOULD BE DENIED THE
POWER TO DETERMINE THE SUBORDINATE ISSUES OF FACT UPON WHICH THE JURY'S
FINAL VERDICT MUST REST. 

THERE ARE POWERFUL FORCES LOOSE IN THIS COUNTRY THAT DEPRECATE THE
USE OF JURIES.  THE DEPARTMENT OF JUSTICE AND OTHER FEDERAL AGENCIES
/3/  OFTEN SEEM TO DISLIKE JURIES IN CONDEMNATION CASES.  IN MY
CIRCUIT, JURIES HAVE UNEXPECTEDLY RISEN UP IN FAVOR OF HOMEOWNERS AND
AGAINST WASHINGTON, D.C., AND GRANTED "JUST COMPENSATION" IN LARGE
SUMS, IN RETALIATION, IT IS BELIEVED, AGAINST HARDNOSED OFFICIALS WHO,
WITH ALL THE POWER OF THE CENTRAL GOVERNMENT, SEEK TO PLOW THEM UNDER. 
AT OTHER TIMES THE JURY HAS ACTED DIFFERENTLY AND CUT DOWN THE AWARD. 
/4/  JURIES IN THESE CONDEMNATION CASES PERFORM, IN OTHER WORDS, AN
HISTORIC RESTRAINT ON BOTH EXECUTIVE AND JUDICIAL POWER.  SEE BUSHELL'S
CASE.  6 HOW.ST.TR. 999, DECIDED IN 1670. 

/1/  PROGRESS AND POVERTY, BOOK VI (50TH ANN. ED. 1945.) 

/2/  IN UNITED STATES V. CERTAIN LANDS, 144 F.SUPP.  206, A ROAD WAS
TAKEN AND THE QUESTION OF "JUST COMPENSATION" TURNED ON WHETHER THE
CONSTRUCTION OF A SUBSTITUTE FACILITY WAS NECESSARY.  THE COURT HELD
THAT THAT ISSUE OF NECESSITY WAS PROPERLY LEFT TO THE JURY: 

"IN THE AVERAGE CONDEMNATION PROCEEDING, MANY FACTORS MUST BE
CONSIDERED IN ARRIVING AT JUST COMPENSATION, FACOTRS WHICH ARE ONLY
ESTABLISHED AND AVAILABLE AFTER THE EXERCISE OF A FACT-FINDING
PROCESS.  THERE APPEARS TO BE NO REASON FOR INTRODUCING A TRIAL BY JURY
INTO CONDEMNATION PROCEEDINGS UNLESS THE JURY'S PROVINCE IS BROAD
ENOUGH TO INCLUDE THE WEIGHING OF EVIDENCE WHICH DIRECTLY RELATES TO
THE ISSUE OF COMPENSATION.  IT WOULD SEEM THAT IN THIS CASE THE
DETERMINATION AS TO WHETHER ANY SUBSTITUTE FACILITIES ARE REQUIRED AT
ALL IS INDEED A PART OF THE 'ISSUE OF JUST COMPENSATION', ONE OF THE
FACTORS TO BE TAKEN INTO ACCOUNT BY THE JURY IN REACHING ITS VERDICT." 
ID., AT 214. 

/3/  THE PRESENT RULE 71A, WHICH IN ABSENCE OF AN ACT OF CONGRESS
GIVES THE COURTS DISCRETION OT HAVE THE ISSUE OF COMPENSATION DECIDED
BY A COMMISSION OF THREE, WAS INSPIRED BY THE ACT OGVERNING
CONDEMNATIONS BY THE ( WHICH REQUIRED THE APPOINTMENT OF A COMMISSION
IN ALL CASES, 48 STAT. 70.  SEE NOTES OF ADVISORY COMMITTEE, 28 U.S.C.,
FOLLOWING RULE 71A.  BUT THAT ACT WAS AMENDED IN 1968.  SEE 82 STAT.
885, 16 U.S.C. 831X (1964 ED., SUPP. IV).  UNDER THE BILL AS REPORTED
OUT OF THE SENATE COMMITTEE ON PUBLIC WORKS EITHER PARTY HAD ON DEMAND
"AN ABSOLUTE RIGHT TO A JURY OF THE LEGISLATION INDICATED THATNO
LANDOWNER SHOULD BE DENIED HIS BASIC RIGHT TO A TRIAL BY JURY INVOLVING
THE CONDEMNATION OF HIS PROPERTY.  IN ADDITION, IT WAS INDICATED THAT
THE ABSENCE OF A RIGHT TO A JURY TRIAL HAD GENERATED FRICTION BETWEEN
TVA AND LANDOWNERS WHICH WAS SERIOUSLY AFFECTING THE PUBLIC RELATIONS
OF THAT AGENCY."  IBID. 

THE SENATE COMMITTEE STATED:  "WHILE THE COMMITTEE MAKES NO JUDGMENT
AS TO THE BENEFITS OF EITHER THE COMMISSIONERS OR JURY-TRIAL SYSTEM, IT
DOES FEEL THAT A RIGHT TO TRIAL-BY-JURY IS BASIC TO OUR AMERICAN WAY OF
LIFE, AND ACCORDINGLY RECOMMENDS ADOPTION OF THIS LEGISLATION."  ID.,
AT 3. 

THAT BILL WAS AMENDED ON THE FLOOR OF THE SENATE TO MODIFY THE
PROVISION FOR AN ABSOLUTE RIGHT TO JURY TRIAL BY MAKING RULE 71A
APPLICABLE TO TVA CONDEMNATION PROCEEDINGS.  THE DISCUSSION IN SUPPORT
OF THIS AMENDMENT, HOWEVER, AGAIN STRESSED THE GENERAL DISSATISFACTION
WITH THE COMMISSION SYSTEM, AND EMPHASIZED THE RIGHT TO JURY TRIAL IN
ALL BUT THE MOST "EXTRAORDINARY CIRCUMSTANCES."  113 CONG.REC.  36979
36981. 

/4/  SEE JOHN L. ROPER LUMBER CO. V. UNITED STATES, 150 F.2D 329,
WHIERE THE JURY REFUSED THE LAND OWNER ANY INCREMENT OF VALUE
OCCASIONED BY THE LAND'S PROXIMITY TO THE PROJECT. 

ASSISTANT ATTORNEY GENERAL KASHIWA ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, RAYMOND
N. ZAGONE, AND ROBERT S. LYNCH. 

ERWIN S. SOLOMON ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 
..END :









CZOSEK V. O'MARA, 397 U.S. 25 


       CZOSEK ET AL. V. O'MARA ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT. 

        NO. 234.  ARGUED JANUARY 13, 1970-- DECIDED FEBRUARY 24,

           1970 


EMPLOYEES OF THE ERIE LACKAWANNA RAILROAD CO., WHO WERE FURLOUGHED
AND NEVER RECALLED, FILED SUIT AGAINST THE RAILROAD, THEIR UNION, AND
SUBORIDNATE ORGANIZATIONS AND OFFICERS OF THE UNION, ALLEGING THAT THE
RAILROAD HAD WRONGFULLY DISCHARGED THEM AND THAT THE UNION DEFENDANTS
HAD BEEN "GUILTY OF GROSS NONFEASANCE AND HOSTILE DISCRIMINATION" IN
REFUSING TO PROCESS THEIR CLAIMS.  THEY SOUGHT DAMAGES FROM THE
RAILROAD, THE UNION DEFENDANTS, OR BOTH.  THE DISTRICT COURT DISMISSED
THE COMPLAINT AGAINST THE RAILROAD FOR FAILURE TO EXHAUSE THE RAILWAY
LABOR ACT'S ADMINISTRATIVE REMEDIES AND FOR LACK OF DIVERSITY
JURISDICITON, AND AGAINST THE UNION FOR FAILURE ADEQUATELY TO ALLEGE A
BREACH OF DUTY AND BECAUSE THE PLAINTIFFS COULD HAVE PROCESSED THEIR
OWN GRIEVANCES.  THE COURT OF APPEALS REVERSED WITH RESPECT TO THE
ACTION AGAINST THE UNION DEFENDANTS, HOLDING THAT THE COMPLAINT
ADAEQUATELY ALLEGED A BREACH OF THE UNION'S DUTY OF FAIR
REPRESENTATION.  IT AFFIRMED DISMISSAL OF THE COMPLAINT AGAINST THE
RAILROAD, BUT HELD THAT ON REMAND THE EMPLOYEES COULD MAINTAIN THEIR
ACTION AGAINST THE RAILROAD IF THEY AMENDED THE COMPLAINT TO ALLEGE
THAT THE EMPLOYER WAS IMPLICATED IN THE UNION'S DISCRIMINATION.  HELD: 

1.  THAT THE COMPLAINT AGAINST THE UNION WAS SUFFICIENT TO SURVIVE A
MOTION TO DISMISS.  THE CLAIM FOR BREACH OF THE UNION'S DUTY OF FAIR
REPRESENTATION IS A DISCRETE CLAIM, BEING DISTINCT FROM THE RIGHT
OFINDIVIDUAL EMPLOYEES UNDER THE RAILWAY LABOR ACT TO PURSUE THEIR
EMPLOYER BEFORE THE ADJUSTMENT BOARD.  PP. 27-28. 

2.  THE UNION CAN BE SUED ALONE FOR BREACH OF ITS DUTY, AND IT
CANNOT COMPLAIN IF SEPARATE ACTIONS ARE BROUGHT AGAINST IT AND THE
EMPLOYER FOR THE PORTION OF THE TOTAL DAMAGES CAUSED BY EACH WHERE THE
UNION AND THE EMPLOYER HAVE INDEPENDENTLY CAUSED DAMAGE TO THE
EMPLOYEES.  PP. 28-29. 

407 F.2D 674, AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN 1960, THE CORPORATE RESPONDENT, ERIE LACKAWANNA RAILROAD COMPANY,
WAS FORMED BY THE MERGER OF THE ERIE RAILROAD AND THE DELAWARE
LACKAWANNA & WESTERN RAILROAD.  THEREAFTER, THE INDIVIDUAL RESPONDENTS,
FORMER EMPLOYEES OF THE DELAWARE LACKAWANNA, CONTINUED AS EMPLOYEES OF
THE ERIE LACKAWANNA UNTIL 1962, WHEN THEY WERE FURLOUGHED; AFTER THE
1962 FURLOUGH, THE RESPONDENT EMPLOYEES WERE NEVER RECALLED BY THE
RAILROAD.  DEEMING THE FURLOUGH A FINAL DISCHARGE, THE INDIVIDUAL
RESPONDENTS BROUGHT SUIT IN THE PDISTRICT COURT FOR THE WESTERN
DISTRICT OF NEW YORK AGAINST THE ERIE LACKAWANNA AND AGAINST THE
INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, SUBORDINATE
ORGANIZATIONS WITHIN THE UNION, AND LOCAL AND NATIONAL OFFICERS OF THE
UNION.  THE ALLEGATIONS WERE THAT THE RAILROAD HAD WRONGFULLY
DISCHARGED THE PLAINTIFFS IN VIOLATION OF SEC. 5 ET SEQ. OF THE
INTERSTATE COMMERCE ACT, 24 STAT. 380, AS AMENDED, 49 U.S.C. 5 ET SEQ.,
THE RAILWAY LABOR ACT, 44 STAT. 577, AS AMENDED, 45 U.S.C. 151 ET SEQ.,
AND THE AGREEMENT BETWEEN THE ERIE LACKAWANNA AND ITS EMPLOYESS ENTERED
INTO TO IMPLEMENT THE 1960 MERGER OF THE ERIE AND THE DELAWARE
LACKAWANNA; AND THAT THE UNION DEFENDANTS HAD BEEN "GUILTY OF GORRS
NONFEASANCE AND HOSTILE DISCRIMINATION" IN ARBITRARILY AND CAPRICIOUSLY
REFUSING TO PROCESS THE CLAIMS OF PLAINTIFFS, WHO HAD "BEEN REPLACED BY
'PRE-MERGER' EMPLOYEES OFTHE ERIE RAILROAD."  DAMAGES IN THE SUM OF
$160,000 WERE SOUGHT AGAINST THE RAILROAD, THE UNION DEFENDANTS, OR
BOTH.  THE DISTRICT COURT DISMISSED THE COMPLAINT AGAINST THE RAILROAD
FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES UNDER THE RAILWAY LABOR
ACT AND FOR LACK OF DIVERSITY JURSIDICTION; THE COURT DISMISSED THE
COMPLAINT AGAINST THE UNION BECAUSE THE COMPLAINT FAILED ADEQUATELY TO
ALLEGE A BREACH OF DUTY AND BECAUSE THE EMPLOYEES COULD HAVE PROCESSED
THEIR OWN GRIEVANCES. 

ON APPEAL, THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED THE
DISTRICT COURT'S DECISION WITH RESPECT TO THE ACTION AGAINST THE UNION
DEFENDANTS.  O'MARA V. ERIE LACKAWANNA R. CO., 407 F.2D 674 (1969). 
THE COURT OF APPEALS HELD THAT THE COMPLAINT WAS ADEQUATE TO ALLEGE A
BREACH BY THE UNION OF ITS DUTY OF FAIR REPRESENTATION SUBJECT OT
VINDICATION IN THE DISTRICT COURT WITHOUT RESORT TO ADMINISTRATIVE
REMEDIES.  DISMISSAL OF THE COMPLAINT AGAINST THE RAILROAD WAS
AFFIRMED; BUT ON REMAND THE INDIVIDUAL RESPONDENTS WERE TO BE GRANTED
LEAVE TO MAINTAIN THEIR ACTION AGAINST THE RAILROAD IF THEY SHOULD
CHOOSE TO AMEND THEIR COMPLAINT TO ALLEGE THAT THE EMPLOYER WAS SOMEHOW
IMPLICATED IN THE UNION'S DISCRIMINATION. 

WE GRANTED CERTIORARI, 396 U.S. 814 (19690, AND WE AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS.  ALTHOUGH THE COMPLAINT WAS NOT AS
SPECIFIC WITH REGARD TO UNION DISCRIMINATION AS MIGHT HAVE BEEN
DESIRABLE, WE DEEM THE COMPLAINT AGAINST THE UNION SUFFICIENT TO
SURVIVE A MOTION TO DISMISS.  AS THE COURT OF APPEALS INDICATED, "WHERE
THE COURTS ARE CALLED UPON TO FULFILL THEIR ROLE AS THE PRIMARY
GUARDIANS OF THE DUTY OF FAIR REPRESENTAITON," COMPLAINTS SHOULD BE
CONSTRUED TO AVOID DISMISSALS AND THE PLAINTIFF AT THE VERY LEAST
"SHOULD BE GIVEN THE OPPORTUNITY TO FILE SUPPLEMENTAL PLEADINGS UNLESS
IT APPEARS 'BEYOND DOUBT' THAT HE CANNOT STATE A GOOD CAUSE OF ACTION. 
407 F.2D, AT 679.  SEE CONLEY V. GIBSON, 355 U.S. 41, 45-46 (1957). 
AND SURELY IT IS BEYOND CAVIL THAT A SUIT AGAINST THE UNION FOR BREACH
OF ITS DUTY OF FAIR REPRESENTATION IS NOT WITHIN THE JURSIDICTION OF
THE NATIONAL RAILROAD ADJUSTMENT BOARD OR SUBJECT TO THE ORDINARY RULE
THAT ADMINISTRATIVE REMEDIES SHOULD BE EXHAUSTED BEFORE RESORT TO THE
COURTS.  GLOVER V. ST. LOUIS-S.F.R. CO., 393 U.S. 324 (1969); CONLEY V.
GIBSON, SUPRA.  THE CLAIM AGAINST THE UNION DEFENDANTS FOR THE BREACH
OF THEIR DUTY OF FAIR REPRESENTATION IS A DISCRETE CALIM QUITE APART
FROM THE RIGHT OF INDIVIDUAL EMPLOYEES EXPRESSLY EXTENDED TO THEM UNDER
THE RAILWAY LABOR ACT TO PURSUE THEIR EMPLOYER BEFORE THE ADJUSTMENT
BOARD.  /1/ 

NEITHER THE INDIVIDUAL RESPONDENTS NOR THE RAILROAD SOUGHT REVIEW
HERE OF THE COURT OF AEALS' JUDGMENT INSOFAR AS IT SUSTAINED THE
DISMISSAL OF THE COMPLAINT AGAINST THE RAILROAD ABSENT ALLEGATIONS
IMPLICATING THE RAILROAD IN THE UNION'S CLAIMED BREACH OF DUTY.  THE
PETITIONING UNION DEFENDANTS, HOWEVER, CHALLENGE THIS ASPECT OF THE
COURT OF APPEALS' DECISION, INSISTING THAT THEY MAY NOT BE SUED ALONE
FOR BREACH OF DUTY WHEN THE DAMAGE TO EMPLOYEES HAD ITS ROOTS IN THEIR
DISCHARGE BY THE RAILROAD PRIOR TO THE UNION'S ALLEGED REFUSAL TO
PROCESS GRIEVANCES.  APPARENTLY FEARING THAT IF SUED ALONE THEY MAY BE
FORCED TO PAY DAMAGES FOR WHICH THE EMPLOYER IS WHOLLY OR PARTLY
RESPONSIBLE, THE PETITIONERS CLAIM ERROR IN THE COURT OF APPEALS;
AFFIRMANCE OF THE DISMISSAL OF THE SUIT AGAINST THE RAILROAD.  THESE
FEARS ARE GROUNDLESS.  THE COURT OF APPEALS PERMITTED THE RAILROAD TO
BE MADE A PARTY TO THE SUIT IF IT IS PROPERLY ALLEGED THAT THE
DISCHARGE WAS A CONSEQUENCE OF THE UNION'S DISCRIMINATORY CONDUCT OR
THAT THE EMPLOYER WAS IN ANY OTHER WAY IMPLICATED IN THE UNION'S
ALLEGED DISCRIMINATORY ACTION.  /2/  IF THESE ALLEGATIONS ARE NOT MADE
AND THE EMPLOYER IS NOT A PARTY DEFENDANT, JUDGMENT AGAINST PETITIONERS
CAN IN ANY EVENT BE HAD ONLY FOR THOSE DAMAGES THAT FLOWED FROM THEIR
OWN CONDUCT.  /3/  ASSUMING A WRONGFUL DISCHARGE BY THE EMPLOYER
INDEPENDENT OF ANY DISCRIMINATORY CONDUCT BY THE UNION AND A SUBSEQUENT
DISCRIMINATORY REFUSAL BY THE UNION TO PROCESS GRIEVANCES BASED ON THE
DISCHARGE, DAMAGES AGAINST THE UNION FOR LOSS OF EMPLOYMENT ARE
UNRECOVERABLE EXCEPT TO THE EXTENT THAT ITS REFUSAL TO HANDLE THE
GRIEVANCES ADDED TO THE DIFFICULTY AND EXPENSE OF COLLECTING FROM THE
EMPLOYER.  IF BOTH THE UNION AND THE EMPLOYER HAVE INDEPENDENTLY CAUSED
DAMAGE TO EMPLOYEES, THE UNION CANNOT COMPLAIN IF SEPARATE ACTIONS ARE
BROUGHT AGAINST IT AND THE EMPLOYER FOR THE PORTION OF THE TOTAL
DAMAGES CAUSED BY EACH. 

SINCE THE PETITIONING UNION DEFENDANTS WILL NOT BE MATERIALLY
PREJUDICED BY THE POSSIBLE ABSENCE OF THE RESPONDENT RAILROAD AS A
CODEFENDANT AT TRIAL AND SINCE NEITHER THE RAILROAD NOR THE AGGRIEVED
EMPLOYEES SOUGHT REVIEW OF THE COURT OF APPEALS' JUDGMENT, WE HAVE NO
OCCASION TO CONSIDER WHETHER UNDER FEDERAL LAW, WHICH GOVERNS IN CASES
LIKE THESE, THE EMPLOYER MAY ALWAYS BE SUED WITH THE UNION WHEN A
SINGLE SERIES OF EVENTS GIVES RISE TO CLAIMS AGAINST THE EMPLOYER FOR
BREACH OF CONTRACT AND AGAINST THE UNION FOR BREACH OF THE DUTY OF FAIR
REPRESENTATION OR WHETHER, AS THE COURT OF APPEALS HELD, WHEN THERE ARE
NO ALLEGATIONS TYING UNION AND EMPLOYER TOGETHER, THE UNION IS SUABLE
IN THE DISTRICT COURT FOR BREACH OF DUTY BUT RESORT MUST BE HAD TO THE
ADJUSTMENT BOARD FOR A REMEDY AGAINST THE EMPLOYER. 

              AFFIRMED. 

/1/  SECTION 3 FIRST (I) OF THE RAILWAY LABOR ACT, 45 U.S.C. 153
FIRST (I), AUTHORIZES REFERENCE TO THE ADJUSTMENT BOARD OF DISPUTES
"BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER OR CARRIERS
GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION
OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING CONDITIONS . .
. . "  SECTION 3 FIRST (J) OF THE ACT, 45 U.S.C. 153 FIRST (J),
PROVIDES THAT "(PARTIES MAY BE HEARD EITHER IN PERSON, BY COUNSEL, OR
BY OTHER REPRESENTATIVES, AS THEY MAY RESPECTIVELY ELECT . . . . "  THE
INDIVIDUAL EMPLOYEE'S RIGHTS TO PARTICIPATE IN THE PROCESSING OF HIS
GRIEVANCES "ARE STATUTORY RIGHTS, WHICH HE MAY EXERCISE INDEPENDENTLY
OR AUTHORIZE THE UNION TO EXERCISE IN HIS BEHALF."  ELGIN, J. & E.R.
CO. V. BURLEY, 325 U.S. 711, 740 N. 39 (1945), ADHERED TO ON REHEARING,
327 U.S. 661 (1946). 

/2/  SEE GLOVER V. ST. LOUIS-S.F.R. CO., 393 U.S. 324 (1969);
CUNNINGHAM V. ERIE R. CO., 266 F.2D 411 (C.A. 2D CIR. 1959); RICHARDSON
V. TEXAS & N.O.R. CO., 242 F.2D 230 (C.A. 5TH CIR. 1957).  SEE ALSO
FERRO V. RAILWAY EXPRESS AGENCY, INC., 296 F.2D 847 (C.A. 2D CIR.
1961). 

/3/  SEE VACA V. SIPES, 386 U.S. 171, 196-198 (1967). 

THE CHIEF JUSTICE WOULD DISMISS THE WRIT OF CERTIORARI AS
IMPROVIDENTLY GRANTED. 

RICHARD R. LYMAN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS CLARENCE M. MULHOLLAND. 

JAMES P. SHEA ARGUED THE CAUSE FOR RESPONDENTS O'MARA ET AL. ON THE
BRIEF WAS WILLIAM B. MAHONEY.  RICHARD F. GRIFFIN ARGUED THE CAUSE FOR
RESPONDENT ERIE LACKAWANNA RAILROAD CO. WITH HIM ON THE BRIEF WERE
THOMAS G. RICKERT AND COURTLAND R. LAVALLEE. 
..END :


















JONES V. BOARD OF EDUCATION, 397 U.S. 31 


       JONES V. STATE BOARD OF EDUCATION OF TENNESSEE ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 731.  ARGUED JANUARY 19-20, 1970-- DECIDED FEBRUARY 24,

  1970 


WRIT OF CERTIORARI TO DETERMINE IF INDEFINITE SUSPENSION FROM
UNIVERSITY WHERE PETITIONER WAS A STUDENT VIOLATED HIS FIRST AMENDMENT
RIGHTS HELD IMPROVIDENTLY GRANTED SINCE (AS DEVELOPED AFTER THE WRIT
WAS GRANTED) THE SUSPENSION WAS PARTLY BASED ON A FINDING THAT HE LIED
AT THE HEARING ON THE CHARGES AGAINST HIM. 

407 F.2D 834, CERTIORARI DISMISSED. 

PER CURIAM. 

PETITIONER JONES WAS SUSPENDED INDEFINITELY AS A STUDENT AT
TENNESSEE A. & I. STATE UNIVERSITY IN THE SUMMER OF 1967.  HIS
INDEFINITE SUSPENSION WAS CONFIRMED AFTER A HEARING IN SEPTEMBER OF
THAT YEAR, IN WHICH CHARGES AGAINST HIM WERE SPECIFIED, EVIDENCE TAKEN,
AND FINDINGS MADE.  HE, ALONG WITH TWO OTHER SUSPENDED STUDENTS,
BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE, SEEKING TO SET ASIDE THE SUSPENSION ON FIRST
AMENDMENT AND DUE PROCESS GROUNDS.  AFTER A HEARING, THE DISTRICT COURT
GRANTED JUDGMENT ON THE MERITS TO DEFENDANTS WITH AN OPINION.  279
F.SUPP.  190 (1968).  ON APPEAL THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT AFFIRMED.  407 F.2D 834 (1969).  WE GRANTED CERTIORARI, 396
U.S. 817 (1969), PRIMARILY TO CONSIDER THE ISSUES RAISED BY JONES'
CLAIM THAT HE HAD BEEN SEPARATED FROM THE UNIVERSITY SOLELY BECAUSE OF
HIS DISTRIBUTION OF LEAFLETS URGING A BOYCOTT OF FALL REGISTRATION. 

AFTER ORAL ARGUMENT, AND ON CLOSER REVIEW OF THE RECORD, IT EMERGES-
AS IT DID NOT FROM THE CERTIORARI PAPERS OR THE OPINIONS OF THE
DISTRICT COURT AND THE COURT OF APPEALS-- THAT JONES' INDEFINITE
SUSPENSION WAS BASED IN PART ON A FINDING THAT HE LIED AT THE HEARING
ON THE CHARGES AGAINST HIM.  THIS FACT SUFFICIENTLY CLOUDS THE RECORD
TO RENDER THE CASE AN INAPPROPRIATE VEHICLE FOR THIS COURT'S FIRST
DECISION ON THE EXTENT OF FIRST AMENDMENT RESTRICTIONS UPON THE POWER
OF STATE UNIVERSITIES TO EXPEL OR INDEFINITELY SUSPEND STUDENTS FOR THE
EXPRESSION OF VIEWS ALLEGED TO BE DISRUPTIVE OF THE GOOD ORDER OF THE
CAMPUS.  ACCORDINGLY THE WRIT OF CERTIORARI IS DISMISSED AS
IMPROVIDENTLY GRANTED. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACK, FOR REASONS SET OUT IN THE ABOVE OPINION AND
OTHERS STATED IN HIS DISSENT IN TINKER V. DES MOINES SCHOOL DIST., 393
U.S. 503, 515-526, WOULD AFFIRM THE JUDGMENT BELOW. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN CONCURS,
DISSENTING. 

PETITIONER, A STUDENT AT TENNESSEE A. & I. STATE UNIVERSITY, WAS
DISMISSED FROM THE SCHOOL ON CHARGES PREFERRED BY A FACULTY ADVISORY
COMMITTEE AND HEARD BY IT.  ONE OF THE CHARGES READ AS FOLLOWS; 

     "YOU ARE CHARGED WITH DISTRIBUTING LITERATURE AND SOLICITING

  STUDENTS, ALL OF WHICH WAS DESIGNED TO BOYCOTT THE REGISTRATION

  AT THE UNIVERSITY FOR THE FALL QUARTER 1967.  THIS OCCURRED

  DURING THE SUMMER OF 1967." 

THE LITERATURE URGING A BOYCOTT OF REGISTRATION WAS A PAMPHLET WHICH
IS PRINGTED IN THE APPENDIX TO THIS OPINION. 

PETITIONER, BEING SUSPENDED INDEFINITELY, BROUGHT THIS SUIT IN THE
DISTRICT COURT FOR AN INJUNCTION AND OTHER RELIEF.  THAT COURT DENIED
RELIEF, 279 F.SUPP.  190, AND THE COURT OF APPEALS AFFIRMED.  407 F.2D
834.  OUR FAILURE TO REVERSE IS A SERIOUS SETBACK FOR FIRST AMENDMENT
RIGHTS IN A TROUBLED FIELD. 

THE LEAFLET NOW CENOSRED MAY BE ILL-TEMPERED AND IN BAD TASTE.  BUT
WE RECOGNIZED IN TERMINIELLO V. CHICAGO, 337 U.S. 1, THAT EVEN STRONGLY
ABUSIVE UTTERANCES OR PUBLICATIONS, NOT MERELY POLISHED AND URBANE
PRONOUNCEMENTS OF DIGNIFIED PEOPLE, ENJOY FIRST AMENDMENT PROTECTION. 
WE SAID IN TERMINIELLO: 

"(A) FUNCTION OF FREE SPEECH UNDER OUR SYSTEM OF GOVERNMENT IS TO
INVITE DISPUTE.  IT MAY INDEED BEST SERVE ITS HIGH PURPOSE WHEN IT
INDUCES A CONDITION OF UNREST, CREATES DISSATISFACTION WITH CONDITIONS
AS THEY ARE, OR EVEN STIRS PEOPLE TO ANGER.  SPEECH IS OFTEN
PROVOCATIVE AND CHALLENGING.  IT MAY STRILE AT PREJUDICES AND
PRECONCEPTIONS AND HAVE PROFOUND UNSETTLING EFFECTS AS IT PRESSES FOR
ACCEPTANCE OF AN IDEA."  ID., AT 4. 

STUDENTS ARE CERTAINLY ENTITLED TO ENJOY FIRST AMENDMENT RIGHTS. 
WEST VIRGINIA V. BARNETTE, 319 U.S. 624, 637; SWEEZY V. NEW HAMPSHIRE,
354 U.S. 234, 250.  THIS DOES NOT MEAN THAT FREE SPEECH CAN BE USED
WITH IMPUNITY AS AN EXCUSE TO BREAK UP CLASSROOMS, TO DESTROY THE QUIET
AND DECORUM OF CONVOCATIONS, OR TO BAR THE CONSTITUTIONAL PRIVILEGES OF
OTHERS TO MEET TOGETHER IN MATTERS OF COMMON CONCERN.  BUT THE CAMPUS,
WHERE THIS LEAFLET WAS DISTRIBUTED, IS A FITTING PLACE FOR THE
DISSEMINATION OF A WIDE SPECTRUM OF IDEAS. 

MOREOVER, IT IS FAR TOO LATE TO SUFFEST THAT SINCE ATTENDANCE AT A
STATE UNIVERSITY IS A "PRIVILEGE", NOT A "RIGHT," THERE ARE NO
CONSTITUTIONAL BARRIERS TO SUMMARY WITHDRAWAL OF THE "PRIVILEGE."  SUCH
LABELING DOES NOT RESOLVE CONSTITUTIONAL QUESTIONS, AS WE RECENTLY
NOTED IN SHAPIRO V. THOMPSON, 394 U.S. 618, 627 N. 6.  THE DOCTRINE
THAT A GOVERNMENT, STATE OF FEDERAL, MAY NOT GRANT A BENEFIT OR
PRIVILEGE ON CONDITIONS REQUIRING THE RECIPIENT TO RELINQUISH HIS
CONSTITUTIONAL RIGHTS IS NOW WELL ESTABLISHED.  E.G., CAFETERIA WORKERS
V. MCELROY, 367 U.S. 886, 894; SHERBERT V. VERNER, 374 U.S. 398, 404;
SPEISER V. RANDALL, 357 U.S. 513, 519-520; GARRITY V. NEW JERSEY, 385
U.S. 493, 499-500; KWONG HAI CHEW V. COLDING, 344 U.S. 590, 597-598;
FROST & FROST TRUCKING CO. V. RAILROAD COMM'N, 271 U.S. 583, 593-594;
SEE VAN ALSTYNE, THE DEMISE OF THE RIGHT-PRIVILEGE DISTINCTION IN
CONSTITUTIONAL LAW, 81 HARV.L.REV.  1439, 1445-1454 (1968); COMMENT,
ANOTHER LOOK AT UNCONSTITUTIONAL CONDITIONS, 117 U.PA.L.REV.  144
(1968).  AS STATED IN HOMER V. RICHMOND, 292 F.2D 719, 722: 

"ONE MAY NOT HAVE A CONSTITUTIONAL RIGHT TO GO TO BAGHDAD, BUT THE
GOVERNMENT MAY NOT PROHIBIT ONE FROM GOING THERE UNLESS BY MEANS
CONSONANT WITH DUE PROCESS OF LAW." 

THIS DOES NOT MEAN THAT THE WHOLE PANOPLY OF THE BILL OF RIGHTS IS
APPLICABLE TO STUDENT DISMISSAL PROCEEDINGS.  IT DOES MEAN, HOWEVER,
THAT WHERE THERE ARE "CONSTITUTIONAL RESTRAINTS UPON STATE AND FEDERAL
GOVERNMENTS" IN DEALING WITH THE PERSONS SUBJECT TO THEIR SUPERVISION,
THE PERSONS IN QUESTION HAVE A "CONSTITUTIONAL RIGHT TO NOTICE AND A
HEARING BEFORE THEY CAN BE REMOVED."  CAFETERIA WORKERS V. MCELROY,
SUPRA, AT 898. 

JUDGE RIVES, SPEAKING FOR THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT, STATED IN DIXON V. ALABAMA STATE BOARD, 294 F.2D 150, 157:
"(NO) ONE CAN QUESTION THAT THE RIGHT TO REMAIN AT THE COLLEGE IN WHICH
THE PLAINTIFFS WERE STUDENTS IN GOOD STANDING IS AN INTEREST OF
EXTREMELY GREAT VALUE."  JUDGE RIVES WENT ON TO HOLD THAT SUCH
"PRIVILEGE" OR "RIGHT" COULD NOT BE TAKEN AWAY WITHOUT NOTICE AND
HEARING.  ID., AT 158.  THUS THE DISSENT OF JUDGE CLARK IN STEIER V.
NEW YORK STATE EDUCATION COMM'R, 271 F.2D 13, 22-23, BECAME THE LAW. 
SEE WRIGHT, THE CONSTITUTION ON THE CAMPUS, 22 VAND.L.REV.  1027, 1028
1034 (1969). 

WHEN WE LOOK AT THE PRESENT PROEEEDING WE LEARN THAT THERE WAS
NOTICE AND THAT THERE WERE HEARINGS.  THE CHARGE WAS CIRCULATING THE
LEAFLET, WHICH CLEARLY WAS A FIRST AMENDMENT RIGHT.  AS WE SAID IN
TINKER V. DES MOINES SCHOOL DIST., 393 U.S. 503, 506: 

     "FIRST AMENDMENT RIGHTS, APPLIED IN LIGHT OF THE SPECIAL

  CHARACTERISTICS OF THE SCHOOL ENVIRONMENT, ARE AVAILABLE TO

  TEACHERS AND STUDENTS.  IT CAN HARDLY BE ARGUED THAT EITHER

  STUDENTS OR TEACHERS SHED THEIR CONSTITUTIONAL RIGHTS TO FREEDOM

  OF SPEECH OR EXPRESSION AT THE SCHOOLHOUSE GATE.  THIS HAS BENE

  THE UNMISTAKABLE HOLDING OF THIS COURT FOR ALMOST 50 YEARS." 

AT THE VERY LEAST THE SUSPENSION RAISES A SERIOUS CONSTITUTIONAL
QUESTION IN THE ABSENCE OF PROVISION FOR A TIMELY JUDICIAL
DETERMINATION OF THE FIRST AMENDMENT CLAIMS.  CF. FREEDMAN V. MARYLAND,
380 U.S. 51. 

THE CIRCULATION DID NOT DISRUPT A CLASSROOM OR ANY OTHER UNIVERSITY
FUNCTION.  IT WOULD SEEM, THEREFORE, THAT IT IS IMMUNE FROM PUNISHMENT,
CENSORSHIP, AND ANY FORM OF RETALIATORY ACTION. 

"NEITHER THE STATE IN GENERAL, NOR THE STATE UNIVERSITY IN
PARTICULAR, IS FREE TO PROHIBIT ANY KIND OF EXPRESSION BECAUSE IT DOES
NOT LIKE WHAT IS BEING SAID."  WRIGHT, SUPRA, AT 1039. 

THE SUSPENSION OF PETITIONER WAS BASED IN PART ON DISTRIBUTING THE
LITERATURE AND IN PART ON THE COMMITTEE'S CONCLUSION THAT, WHEN
PETITIONER AT THE HEARING DENIED THAT HE "PASSED OUT SUCH LITERATURE,"
HE "DID NOT TELL THE TRUTH." 

BY LYING TO SCHOOL AUTHORITIES WAS NO PART OF THE CHARGES LEVELED
AGAINST PETITIONER.  IF HE IS TO BE EXPELLED FOR LYING, HE IS ENTITLED
OT NOTICE AND OPPORTUNITY TO BE HEARD ON THE CHARGE.  WE SAID IN A CASE
INVOLVING THE DISBARMENT OF A LAWYER, "THE CHARGE MUST BE KNOWN BEFORE
THE PROCEEDINGS COMMENCE."  IN RE RUFFALO, 390 U.S. 544, 551.  IN THAT
CASE ONE OF THE GROUNDS OF DISBARMENT WAS PETITIONER'S EMPLOYMENT OF
ONE ORLANDO AS AN INVESTIGATOR.  THAT WAS NOT INCLUDED IN ANY CHARGE
MADE PRIOR TO THE DISBARMENT HEARING.  PETITIONER WAS NOT AWARE THAT IT
WOULD BE CONSIDERED AS A DISBARMENT OFFENSE UNTIL AFTER BOTH HE AND
ORLANDO TESTIFIED ON ALL ASPECTS OF THAT PHASE OF THE CASE.  WE SAID
THAT DISBARMENT PROCEEDINGS 

"BECOME A TRAP WHEN, AFTER THEY ARE UNDERWAY, THE CHARGES ARE
AMENDED ON THE BASIS OF TESTIMONY OF THE ACCUSED.  HE CAN THEN BE GIVEN
NO OPPORTUNITY TO EXPUNGE THE EARLIER STATEMENTS AND START AFRESH. 

     "HOW THE CHARGE WOULD HAVE BEEN MET HAD IT BEEN ORIGINALLY

  INCLUDED IN THOSE LEVELED AGAINST PETITIONER . . . NO ONE KNOWS. 

     "THIS ABSENCE OF FAIR NOTICE AS TO THE REACH OF THE GRIEVANCE

  PROCEDURE AND THE PRECISE NATURE OF THE CHARGES DEPRIVED

  PETITIONER OF PROCEDURAL DUE PROCESS.  ID., AT 551-552. 

PROCEDURAL DUE PROCESS IN THE PRESENT CASE REQUIRES THAT IF
PETITIONER IS TO BE DEPRIVED OF AN EDUCATION AT TENNESSEE A.&I. FOR
LYING, HE BE GIVEN NOTICE OF THAT PRECISE CHARGE AND AN OPPORTUNITY TO
BE HEARD. 

  APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING 

"IN THE EARLY YEARS OF THE CIVIL RIGHTS MOVEMENT IN AMERICA, COLLEGE
STUDENTS IN NASHVILLE'S BLACK UNIVERSITIES WERE IN THE FOREFRONT OF THE
STRUGGLE.  TODAY, A NEW VANGUARD HAS FORMED AND ONCE AGAIN, STUDENTS AT
TENNESSEE STATE UNIVERSITY ARE CALLED TO THE HELM. 

"THE GREAT WHITE FATHERS DOWNTOWN AHVE GIVEN THE ULTIMATUM TO THE
ADMINISTRATORS OF THIS SCHOOL.  THEY'VE BEGUN THE CONSPIRACY TO SEIZE
TOTAL CONTROL OF THE PUPPET ADMINISTRATORS AND THE ENTIRE STUDENT
BODY.  FOR THEIR OWN SECURITY, AND IN THE VESTED INTEREST OF THE MAN,
THE JUDA ADMINISTRATION HAS SOLD OUT THE STUDENT BODY BY DIRECTING THE
FOLLOWING ATROCITIES AGAINST US: 

     "1.  STUDENTS WHOSE NAMES APPEARED IN THE NASHVILLE RAGES--

  NAMELY THE BANNER AND THE TENNESSEAN-- IN CONNECTION WITH THE

  APRIL 'DISTURBANCES' HAVE BEEN DISMISSED FROM THIS UNIVERSITY

  WITHOUT PRE-WARNING OF THEIR DISMISSAL, AND WITHOUT THE

  OPPORTUNITY TO APPEAR BEFORE THE STUDENT SENATE TO HEAR THE

  CHARGES BROUGHT AGAINST THEM, AND TO APPEAL THEIR CASES. 

      "COMMENT:  IF THE PUPPETS WANT TO ADOPT THE UNCIVILIZED
TACTICS

  USED BY THE MAN, WE MUST MOVE TO CORRECT THESE ERRONEOUSLY

  ACTING, EDUCATED TOMS. 

     "2.  LEGISLATION HAS BEEN TAKEN TO DECREASE THE NUMBER OF

  OUT-OF-STATE STUDENTS BY INCREASING OUT-OF-STATE FEES, AND

  ADOPTING RIGID ACADEMIC STANDARDS. 

     "COMMENT:  THE PUPPET FOOLS AHVE TAKEN THIS ACTION TO REMOVE

  ACADEMIC FREEDOM, AND STUDENT DISSENT FROM UNIVERISTY LIFE.  THUS

  THEY SECURE THEIR OWN SHAKY JOBS, AND THEIR POSITIONS IN THE

  CIRCUS OF WHITE MAN'S SOCIETY.  THESE PEOPLE ARE TOO BLIND TO SEE

  THATTHE MAN INITIATED THESE MOVES SO THAT HE MAY 'MORALLY'

  PROCEED TO INFILTRATE OUR BLACK UNIVERSITY WITH HIS TEACHERS AND

  STUDENTS WHO ARE MORE ADEPT IN PERPETUATING HIS CULTURE THAN THE

  PUPPETS WHO ARE ALREADY HERE. 

     "3.  NON-CITY STUDENTS HAVE BEEN REQUIRED TO MOVE ON CAMPUS

  WITH AN INCREASE IN DORMITORY FEES. 

     "COMMENT:  THUS THE CAMPUS WILL BECOME A CONCENTRATION CAMP

CONTROLLED AND CONTAINED BY THE LEGISLATION OF THE RACIST DOGS

  DOWNTOWN, THE ACTS OF THE PUPPET ADMINISTRATORS, THE BILLY CLUBS

  AND GUNS OF NASHVILLE'S RACIST COPS, AND ULTIMATELY THE GESTAPO

  TACTICS OF THE HONORABLE NATIONAL GUARD, WHOSE PALE FACES HAVE

  ALREADY BEEN SEEN IN MEMPHIS, NASHVILLE, AND CHATTANOOGA. 

"NO LONGER CAN WE AS INTELLIGENT HUMAN BEINGS ALLOW OTHERS TO MAKE A
CHARADE OF DEMOCRATIC PRINCIPLE BY SUBMITTING TO THE TYRANNY OF A
DICTATORIAL ADMINISTRATION.  LET IT BE RESOLVED THAT . . . 

     "1.  WE AS STUDENTS OF THIS UNIVERSITY WILL NOT ALLOW
OURSELVES

  TO BE HERDED INTO CONCENTRATION CAMPS DISGUISED AS THE

  'UNIVERSITY CAMPUS.' 

     "2.  WE, AS INTELLIGENT BLACK STUDENTS, WILL NOT BE GUARDED BY

  TREMBLING, POWERLESS IDIOTS WHO CALL THEMSELVES ADMINISTRATORS. 

     "3.  WE, AS BLACK HUMAN BEINGS WILL NOT BE RECORDED IN THE

  PAGES OF HISTORY AS AN UNUNIFIED RACE OF PEOPLE, EXTERMINATED BY

  THE GUNS OF SUBMISSION AND HATE. 

"A GENERATION OF INACTIVITY HAS GIVEN TODAY'S BLACK STUDENTS (A)
RESPONSIBILITY OF INFORMING AND UNITING OUR FELLOW CLASSMATES SO THAT
WE CAN FIGHT TO REMOVE THE INJUSTICES DIRECTED AGAINST US AS BLACK
PEOPLE. 

"CAST YOUR VOTE FOR STUDENT POWER.  BOYCOTT REGISTRATION SEPTEMBER
23 AND FOR AS LONG AS THE PUPPET ADMINISTRATION REFUSES TO ACKNOWLEDGE
THAT THIS IS OUR UNIVERSITY. 

              SNCC." 

REBER F. BOULT, JR., ARGUED THE CAUSE FOR ETITIONER.  WITH HIM ON
THE BRIEFS WERE CHARLES MORGAN, JR., RICHARD BELLMAN, MELVIN L. WULF,
AND ELEANOR H. NORTON. 

ROBERT H. ROBERTS, ASSISTANT ATTORNEY GENERAL OF TENNESSEE, ARGUED
THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WERE DAVID M. PACK,
ATTORNEY GENERAL, AND THOMAS E. FOX, DEPUTY ATTORNEY GENERAL. 
..END :



















CONTRACTORS CARGO CO. V. UNITED STATES, 397 U.S. 39 


       CONTRACTORS CARGO CO. V. UNITED STATES ET AL.

     APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL

           DISTRICT, OF CALIFORNIA

        NO. 912.  DECIDED FEBRUARY 24, 1970. 


299 F.SUPP.  287, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

WILLIAM P. SULLIVAN AND WILLIAM P. JACKSON, FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
ROBERT W. GINNANE, AND NAHUM LITT FOR THE UNITED STATES ET AL., AND
WYMAN C. KNAPP FOR DEALERS TRANSIT, INC., ET AL., APPELLEES. 
..END :








TURNER V. CLAY, 397 U.S. 39 


       TURNER ET AL. V. CLAY ET AL.

        APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA

        NO. 982.  DECIDED FEBRUARY 24, 1970 


253 S.C. 209, 169 S.E.2D 617, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

HARRY M. LIGHTSEY, JR., FOR APPELLANTS. 

HUGER SINKLER FOR CLAY ET AL., AND DANIEL R. MCLEOD, ATTORNEY
GENERAL OF SOUTH CAROLINA, AND C. TOLBERT GOOLSBY, JR., ASSISTANT
ATTORNEY GENERAL, FOR THORNTON, SECRETARY OF STATE OF SOUTH CAROLINA,
APPELLEES. 
..END :








PRE-FAB TRANSIT CO. V. UNITED STATES, 397 U.S. 40 


       PRE-FAB TRANSIT CO. V. UNITED STATES ET AL.

   APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

         SOUTHERN DISTRICT OF ILLINOIS

        NO. 988.   DECIDED FEBRUARY 24, 1970 


306 F.SUPP.  1247, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

EDWARD K. WHEELER, ROBERT G. SEAKS, AND ROBERT E. JOYNER FOR
APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
HOWARD E. SHAPIRO, ROBERT W. GINNANE, FRITZ R. KAHN, AND NAHUM LITT FOR
THE UNITED STATES ET AL., MARTIN J. LEAVITT FOR MIAMI TRANSPORTATION
CO., INC., ET AL., AND JAMES E. WILSON AND EDWARD G. VILLALON FOR
HENNIS FREIGHT LINES, INC., APPELLEES. 
..END :





LOCKE V. CALIFORNIA, 397 U.S. 40 


       LOCKE V. CALIFORNIA

        APPEAL FROM THE COURT OF APPEALS OF CALIFORNIA, FIRST

           APPELLATE DISTRICT

        NO. 1008.  DECIDED FEBRUARY 24, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

JULIAN HERNDON, JR., FOR APPELLANT. 
..END :










CHEMICAL LEAMAN TANK LINES, INC. V. UNITED STATES, 397 U.S. 41 


       CHEMICAL LEAMAN TANK LINES, INC., ET AL. V. UNITED STATES ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF MISSISSIPPI

        NO. 880.  DECIDED FEBRUARY 24, 1970 


301 F.SUPP.  258, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

PHINEAS STEVENS, THOMAS E. JAMES, AND HARRY C. AMES, JR., FOR
APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
HOWARD E. SHAPIRO, FRITZ R. KAHN, AND JEROME E. SHARFMAN FOR THE UNITED
STATES ET AL., AND EARL T. THOMAS FOR BELL, DBA BELL TRANSPORT CO.,
APPELLEES. 
..END :



KELLER V. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA, 397
U.S. 41 



       KELLER V. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF

           CALIFORNIA

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT

        NO. 1009.  DECIDED FEBRUARY 24, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

BURTON MARKS FOR APPELLANT. 
..END :





ASSOCIATED TRUCK LINES, INC. V. UNITED STATES, 397 U.S. 42 


       ASSOCIATED TRUCK LINES, INC., ET AL. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF MICHIGAN

     NO. 997.  DECIDED FEBRUARY 24, 1970 


304 F.SUPP.  1094, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

CONRAD A. BRADSHAW, PETER T. BEARDSLEY, R. EDWIN BRADY, ALBERT B.
ROSENBAUM, ROLAND RICE, AND RICHARD R. SIGMON FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
HOWARD E. SHAPIRO, ROBERT W. GINNANE, AND FRITZ R. KAHN FOR THE UNITED
STATES ET AL., AND EDWARD A. MCCABE FOR NATIONAL FURNITURE TRAFFIC
CONFERENCE, INC., APPELLEES. 
..END :




KELLY V. MOUNTAIN STATES TELEPHONE & TELEGRAPH CO., 397 U.S. 42 


       KELLY ET UX. V. MOUNTAIN STATES TELEPHONE & TELEGRAPH CO.

        APPEAL FROM THE SUPREME COURT OF IDAHO

      NO. 1077.  DECIDED FEBRUARY 24, 1970 


93 IDAHO 226, 459 P.2D 349, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

GILBERT M. WESTA FOR APPELLEE. 
..END :












UNITED STATES V. WIERNICK, 397 U.S. 43 


       UNITED STATES V. WIERNICK

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS

        NO. 937.  DECIDED FEBRUARY 24, 1970 


VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR FURTHER
CONSIDERATION IN LIGHT OF BUIE V. UNITED STATES, 396 U.S. 87. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
JEROME M. FEIT, AND EDWARD FENIG FOR THE UNITED STATES. 

RAYMOND J. SMITH FOR APPELLEE. 
..END :







SUSSMAN V. UNITED STATES, 397 U.S. 43 


       SUSSMAN V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FOURTH CIRCUIT

        NO. 226.  DECIDED FEBRUARY 24, 1970 


CERTIORARI GRANTED; 409 F.2D 219, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED, AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF TURNER V.
UNITED STATES, 396 U.S. 398. 

WILLIAM J. EVANS AND L. KEITH SIMMER, JR., FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :







BURRUSS V. WILKERSON, 397 U.S. 44 


       BURRUSS ET AL. V. WILKERSON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

        DISTRICT OF VIRGINIA

        NO. 864.  DECIDED FEBRUARY 24, 1970 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 

CARL RACHLIN, MELVIN L. WULF, AND ELEANOR HOLMES NORTON FOR
APPELLANTS. 

ROBERT Y. BUTTON, ATTORNEY GENERAL OF VIRGINIA, RICHARD N. HARRIS,
ASSISTANT ATTORNEY GENERAL, HOHN S. DAVENPORT III, AND HENRY T. WICKHAM
FOR APPELLEES. 

BRIEFS OF AMICI CURIAE IN SUPPORT OF APPELLANTS WERE FILED BY RAMSEY
CLARK, DAVID RUBIN, AND JOHN W. DOUGLAS FOR THE NATIONAL EDUCATION
ASSOCIATION ET AL., AND BY JOSEPH L RAUH, JR., JOHN SILARD, J. ALBERT
WOLL, THOMAS E. HARRIS, STEPHEN I. SCHLOSSBERG, AND DAVID A. BINDER FOR
THE AMERICAN FEDERATION OF LABOR-- CONGRESS OF INDUSTRIAL ORGANIZATIONS
ET AL.
..END :

















UNITED STATES V. COTTON, 397 U.S. 45 


       UNITED STATES V. COTTON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

    DISTRICT OF WISCONSIN

        NO. 1022.  DECIDED FEBRUARY 24, 1970 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION OF THE APPELLEES FOR LEAVE TO PROCEED IN FORMA PAUPERIS
IS GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS
DISMISSED FOR FAILURE TO DOCKET THE CASE WITHIN THE TIME PRESCRIBED BY
RULE 13. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE REQUIREMENT FOR FILING THE RECORD IN AN APPEAL WITHIN THE
PRESCRIBED BY RULE 13 IS NOT JURISDICTIONAL.  RATHER IT IS A PROVISION
OF OUR OWN RULE WHICH WE OFTEN WAIVE IN THE INTERESTS OF JUSTICE.  WE
SHOULD WAIVE IT HERE.  THE APPEAL NOW DISMISSED WAS SOLELY PROTECTIVE
UNDER 18 U.S.C. 3731.  THE MAIN REMEDY SOUGHT WAS MANDAMUS IN THE COURT
OF APPEALS, AND THE RECORD NATURALLY WENT TO THAT COURT, NOT HERE.  THE
ISSUE TENDERED BY THE APPEAL NOW DISMISSED IS WHETHER THE DISTRICT
COURT PROPERLY DISMISSED THE INDICTMENT, BECAUSE THERE COULD BE NO
"FAIR TRIAL" IN THE DISTRICT AT THAT TIME AND THAT IF A CONTINUANCE WAS
GRANTED, APPELLEES WOULD BE DENIED A SPEEDY TRIAL GUARANTEED BY THE
CONSTITUTION. 

THAT IS AN IMPORTANT QUESTION WE SHOULD HEAR AND DECIDE. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND MERVYN HAMBURG FOR THE UNITED STATES. 

WILLIAM M. KUNSTLER FOR APPELLEES. 
..END :











UNITED STATES V. SANTOS, 397 U.S. 46 


       UNITED STATES V. SANTOS ET AL.

        ON PETITION FOR WRIT OF CERTIORARI THE THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

        NO. 861.  DECIDED FEBRUARY 24, 1970  /1/ 


CERTIORARI GRANTED; NO. 861, 417 F.2D 340, AND NO. 873, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION OF RESPONDENT WARD, FOR LEAVE TO PROCEED IN FORMA
PAUPERIS IN NO. 961, IS GRANTED. 

THE PETITIONS FOR WRIT OF CERTIORARI ARE GRANTED, THE JUDGMENTS ARE
VACATED AND THE CASES ARE REMANDED TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF
BUIE V. UNITED STATES, 396 U.S. 87. 

/1/  TOGETHER WITH NO. 873, UNITED STATES V. PERLMAN, ALSO ON
PETITION FOR WRIT OF CERTIORARI TO THE SAME COURT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND MERVYN HAMBURG FOR THE UNITED STATES IN BOTH
CASES. 

JULIUS LUCIUS ECHELES FOR RESPONDENT SANTOS IN NO. 861.  MARUICE J.
WALSH AND CARL M. WALSH FOR RESPONDENT IN NO. 873. 
..END :



















KOLDEN V. SELECTIVE SERVICE LOCAL BOARD NO. 4, 397 U.S. 47 


       KOLDEN V. SELECTIVE SERVICE LOCAL BOARD NO. 4

     ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE EIGHTH CIRCUIT

    NO. 70.  DECIDED FEBRUARY 24, 1970  /1/ 


CERTIORARI GRANTED; NO. 70, 406 F.2D 631; NO. 331, 408 F.2D 622; NO.
449, 410 F.2D 492; AND NOS. 73, 164, 183, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, THE JUDGMENTS ARE
VACATED AND THE CASES ARE REMANDED TO THE RESPECTIVE UNITED STATES
COURT OF APPEALS FOR FURTHER CONSIDERATION IN LIGHT OF BREEN V.
SELECTIVE SERVICE BOARD, 396 U.S. 460. 

/1/  TOGETHER WITH NO. 73, CHAIKIN V. SELECTIVE SERVICE LOCAL BOARD
NO. 66 ET AL; NO. 164, FAULKNER V. LAIRD, SECRETARY OF DEFENSE, ET AL.;
NO. 183, OSHER V. SELECTIVE SERVICE LOCAL BOARD NO. 6 ET AL., ON
PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT; NO. 331, KRAUS V. SELECTIVE SERVICE SYSTEM
LOCAL 25 ET AL., ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT; AND NO. 449, ANDERSON
ET AL., V. HERSHEY, NATIONAL DIRECTOR, SELECTIVE SERVICE SYSTEM, ET
AL., ON PETITION FOR WRIT OF CERTIORARI TO THE UNITE STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

MR. JUSTICE HARLAN WOULD REVERSE THE JUDGMENTS IN THESE CASES AND
REMAND THEM ON THE BASIS OF HIS CONCURRING OPINION IN BREEN V.
SELECTIVE SERVICE BOARD, 396 U.S.,AT 468, AND THE COURT'S OPINION IN
GUTKNECHT V. UNITED STATES, 396 U.S. 295. 

MELVIN L. WULF, CHESTER BRUVOLD, AND LYNN CASTNER FOR PETITIONER IN
NO. 70.  JOHN J. ABT FOR PETITIONER IN NO. 73.  STANLEY FAULKNER FOR
PETITIONER IN NO. 164.  MR. WULF FOR PETITIONER IN NO. 183.  ROBERT
EUGENE SMITH FOR PETITIONER IN NO. 331.  SHELDON M. MEIZLISH FOR
PETITIONERS IN NO. 449. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS,
MORTON HOLLANDER, AND RALPH A. FINE FOR RESPONDENTS IN NOS. 70, 164,
AND 183.  SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
RUCKELSHAUS, AND MR. HOLLANDER FOR RESPONDENTS IN NO. 73.  SOLICITOR
GENERAL GRISWOLD FOR RESPONDENTS IN NOS. 331 AND 449. 
..END :




TROUTMAN V. UNITED STATES, 397 U.S. 48 


       TROUTMAN V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE EIGHTH CIRCUIT

        NO. 623.  DECIDED FEBRUARY 24, 1970  /1/ 


CERTIORARI GRANTED; NO. 623, 412 F.2D 810, AND NO. 411, MISC., 409
F.2D 910, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS IN NO. 411, MISC., IS
GRANTED.  THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, THE
JUDGMENTS ARE VACATED, AND THE CASES REMANDED TO THE RESPECTIVE UNITED
STATES COURTS OF APPEALS FOR FURTHER CONSIDERATION IN LIGHT OF
GUTKNECHT V. UNITED STATES 396 U.S. 295. 

/1/  TOGETHER WITH NO. 411, MISC., BATTISTE V. UNITED STATES, ON
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT. 

GEORGE C. PONTIKES FOR PETITIONER IN NO. 623.  HOWARD MOORE, JR.,
FOR PETITIONER IN NO. 411, MISC. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON, AND
PHILIP R. MONAHAN FOR THE UNITED STATES IN NO. 623.  SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL WI SON, JEROME FEIT, AND EDWARD
FENIG FOR THE UNITED STATES IN NO. 411, MISC.
..END :



















WYMAN, COMMISSIONER OF SOCIAL SERVICES OF NEW YORK V. BOWENS, 397
U.S. 49 



       WYMAN, COMMISSIONER OF SOCIAL SERVICES OF NEW YORK V. BOWENS

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURTS FOR THE

           NORTHERN DISTRICT AND SOUTHERN DISTRICT OF NEW YORK

        NO. 866.  DECIDED FEBRUARY 24, 1970  /1/ 


304 F.SUPP.  717, AFFIRMED. 

PER CURIAM. 

THE MOTION OF THE APPELLEES FOR LEAVE TO PROCEED IN FORMA PAUPERIS
IS GRANTED.  THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENTS ARE
AFFIRMED.  SHAPIRO V. THOMPSON, 394 U.S. 618 (1969). 

/1/  TOGETHER WITH NO. 874, LASCARIS, COMMISSIONER OF ONODAGA COUNTY
DEPARTMENT OF SOCIAL SERVICES V. BOWENS ET AL., ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE HARLAN ARE OF
THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASES
SET FOR ORAL ARGUMENT. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND MARIA L. MARCUS,
ASSISTANT ATTORNEY GENERAL, FOR APPELLANT IN NO. 866.  LEONARD C.
KOLDIN FOR APPELLANT IN NO. 874. 

SYNDEY M. SPECTOR AND RICHARD A. ELLISON FOR APPELLANT IN BOTH CASES. 

..END :













NORTHERN LINES MERGER CASES, 396 U.S. 491 


       UNITED STATES V. INTERSTATE COMMERCE COMMISSION ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA

        NO. 28.  ARGUED OCTOBER 21, 1969-- DECIDED FEBRUARY 2, 1970

    /0/ 


IN 1967 THE INTERSTATE COMMERCE COMMISSION (ICC) APPROVED A MERGER
PLAN FILED BY THE GREAT NORTHERN RAILWAY CO. (GN) AND THE NORTHERN
PACIFIC RAILWAY CO. (NP) (COLLECTIVELY THE NORTHERN LINES), AND THREE
OF THEIR SUBSIDIARIES, THE PACIFIC COAST RAILROAD CO., THE CHICAGO,
BURLINGTON & QUINCY RAILROAD CO. (BURLINGTON), AND THE SPOKANE,
PORTLAND & SEATTLE RAILWAY CO. (SP&S).  THE NORTHERN LINES OPERATE
LARGELY WEST FROM ST. PAUL, MINNEAPOLIS, AND DULUTH, ACROSS THE
NORTHERN TIER OF STATES TO SPOKANE, TACOMA, AND PORTLAND.  NP, WITH
ABOUT 6,200 MILES OF TRACK, RUNS GENERALLY TO THE SOUTH OF GN, WHICH
OPERATES ABOUT 8,200 MILES OF TRACK.  THE NORTHERN LINES JOINTLY OWN
AND CONTROL THE BURLINGTON AND THE SP&S.  THE BURLINGTON HAS 8,648
MILES OF TRACK EXTENDING FROM CHICAGO TO THE TWIN CITIES AND
SOUTHWESTERLY TO MISSOURI, KANSAS, COLORADO, AND MONTANA, AND BY ITS
SUBSIDIARIES REACHES HOUSTON AND GALVESTON.  THE SP&S HAS MORE THAN 500
MILES OF MAINLINE ROAD IN OREGON AND WASHINGTON WHICH PROVIDES THE MOST
DIRECT ROUTE FROM SPOKANE TO PORTLAND AND IS OF STRATEGIC IMPORTANCE TO
THE NORTHERN LINES.  RAIL COMPETITION IN THE NORTHERN LINES' AREA IS
PROVIDED BY GN AND NP (THE PRINCIPAL COMPETITORS), AND THE CHICAGO,
MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. (MILWAUKEE), WHICH HAS NOT
BEEN AN EFFECTIVE LONG-HAUL COMPETITOR, NEVER HAVING HAD ADEQUATE
ACCESS TO THE PACIFIC NORTHWEST GATEWAYS.  TRUCK COMPETITION, PRESENT
IN THE AREA FOR SOME TIME, IS GROWING.  GN'S AND NP'S MERGER EFFORTS
SPAN THREE-QUARTERS OF A CENTURY.  THE PRESENT MERGER PLAN WAS
DISAPPROVED BY THE ICC IN 1966 BY A VOTE OF 6 TO 5, THE ICC FINDING
THAT:  ALTHOUGH THE ESTIMATED ANNUAL SAVINGS WOULD APPROXIMATE $25
MILLION BY THE TENTH YEAR AFTER MERGER, A SIGNIFICANT SOURCE OF THE
SAVINGS WOULD BE THE ELIMINATION OF JOBS; THE MERGER WOULD ELIMINATE
SUBSTANTIAL COMPETITION BETWEEN GN AND NP; EVEN WITH PROTECTIVE
CONDITIONS FOR THE BENEFIT OF THE MILWAUKEE, IT WOULD REMAIN A WEAK
COMPETITOR; AND THE PLAN DID NOT AFFORD BENEFITS OF SUCH SCOPE AND
IMPORTANCE AS TO OUTWEIGH THE LESSENING OF RAIL COMPETITION IN THE
NORTHERN TIER.  THE ICC REOPENED THE PROCEEDINGS IN 1967 AND CONSIDERED
NEW EVIDENCE ON SAVINGS TO BE REALIZED FROM THE MERGER, AND THE
ADDITIONAL EVIDENCE RESULTING IN THE CHANGED POSITION OF SOME OF THE
MAJOR OBJECTORS TO THE PLAN.  THE ICC FOUND THAT:  THE SAVINGS WOULD BE
MORE THAN $40 MILLION A YEAR BY THE TENTH YEAR; AGREEMENTS WITH THE
EMPLOYEES HAD REMOVED UNION OBJECTIONS TO THE MERGER AND PROVIDED THAT
NO JOBS WOULD BE ELIMINATED EXCEPT BY ATTRITION; AND THE APPLICANTS HAD
ACCEPTED ALL PROTECTIVE CONDITIONS SOUGHT BY MILWAUKEE; AND
ACKNOWLEDGED THAT IT HAD FAILED TO GIVE APPROPRIATE WEIGHT TO SEC. 5 OF
THE INTERSTATE COMMERCE ACT TO FACILITATE RAIL MERGERS "CONSISTENT WITH
THE PUBLIC INTEREST."  THE ICC THEN RE-EXAMINED THE ANTICOMPETITIVE
EFFECTS OF THE MERGER, WEIGHING THEM AGAINST THE SAVINGS AND BENEFITS
TO THE PUBLIC, SHIPPERS, AND THE ROADS, AND, EMPHASIZING THE
STRENGTHENED POSITION OF THE MILWAUKEE, APPROVED THE PLAN BECAUSE ITS
BENEFITS OUTWEIGHTED ITS ANTICOMPETITIVE EFFECTS.  THE THREE-JUDGE
DISTRICT COURT SUSTAINED THE ICC, HOLDING THAT THE ICC WAS GUIDED BY
THE APPLICABLE LEGAL PRINCIPLES AND THAT ITS FINDINGS WERE SUPPORTED BY
SUBSTANTIAL EVIDENCE.  FOUR APPEALS WERE TAKEN:  (1) THE UNITED STATES,
THROUGH THE ANTITRUST DIVISION OF THE DEPARTMENT OF JUSTICE, ARGUES
THAT THE ICC DID NOT PROPERLY APPLY THE STANDARD OF SEC. 5 IN
DETERMINING THAT THE MERGER WAS CONSISTENT WITH THE PUBLIC INTEREST. 
IT CONTENDS THAT WHEN A MERGER WILL SUBSTANTIALLY DIMINISH COMPETITION
BETWEEN TWO FINANCIALLY HEALTHY, COMPETING ROADS, THE ANTICOMPETITIVE
EFFECTS SHOULD PRECLUDE APPROVAL ABSENT A CLEAR SHOWING THAT A SERIOUS
TRANSPORTATION NEED WILL BE MET OR IMPORTANT PUBLIC BENEFITS WILL BE
PROVIDED BEYOND THE NORMAL SAVINGS AND EFFICIENCIES DERIVING FROM A
MERGER; (2) THE NORTHERN PACIFIC STOCKHOLDERS' PROTECTIVE COMMITTEE
CHALLENGES THE EXCHANGE RATIOS AGREED UPON BY THE COMPANIES FOR THEIR
STOCK ON THE BASIS THAT NP'S LAND HOLDINGS WERE INSUFFICIENTLY VALUED;
(3) THE CITY OF AUBURN, WASHINGTON (THE WESTERN TERMINUS FOR NP'S
TRANSCONTINENTAL TRAINS WHOSE YEAR WOULD BE CLOSED IN THE MERGER WERE
APPROVED), SUPPORTS THE DEPARTMENT OF JUSTICE'S BRIEF, AND CONTENDS
THAT THE ICC FAILED TO ASSESS ADEQUATELY THE IMPACT OF THE MERGER ON
AFFECTED COMMUNITIES; AND (4) THE LIVINGSTON ANTI-MERGER COMMITTEE
URGES THAT THE ICC HAD NO AUTHORITY TO APPROVE THE MERGER BECAUSE THE
NP, THE SUCCESSOR BY PURCHASE IN 1896 TO THE NORTHERN PACIFIC RAILROAD
CO. (RAILROAD) DOES NOT OWN THE FRANCHISE AND RIGHT OF WAY INVOLVED IN
THE MERGER AS CONGRESS DID NOT AUTHORIZE THE SALE AS REQUIRED BY
RAILROAD'S CHARTER, AND RAILROAD IS NOT A PARTY TO THE MERGER; AND THAT
IF IT IS HELD THAT NP DOES OWN THE FRANCHISE, NO MERGER CAN TAKE PLACE
WITHOUT APPROVAL OF CONGRESS.  HELD: 

1.  THE ICC'S CONCLUSION THAT THE MERGER, AS CONDITIONED, COMPORTED
WITH THE PUBLIC INTEREST UNDER THE STANDARDS OF SEC. 5 OF THE
INTERSTATE COMMERCE ACT, AS AMENDED BY THE TRANSPORTATION ACT OF 1940,
IS SUPPORTED BY THE FINDINGS WHICH THE ICC MADE ON THE BASIS OF
SUBSTANTIAL EVIDENCE AFTER MEASURING THE COMPETITIVE CONSEQUENCES OF
THE MERGER AGAINST ITS RESULTING BENEFITS.  PP. 506-516. 

(A) CONGRESS INTENDED BY THE 1940 AMENDMENTS "TO FACILITATE MERGER
AND CONSOLIDATION IN THE NATIONAL TRANSPORTATION SYSTEM," AND THAT THE
INDUSTRY "PROCEED TOWARD AN INTERGRATED TRANSPORTATION SYSTEM" (COUNTY
OF MARIN V. UNITED STATES, 356 U.S. 412, 416, 418), AND THE
CONGRESSIONAL OBJECTIVE IS NOT TO BE READ AS CONFINING MERGERS TO
SITUATIONS WHERE WEAK CARRIERS ARE PRESERVED BY COMBINING WITH THOSE
THAT ARE STRONG.  PP. 508-511. 

(B) CONGRESS VESTED IN THE ICC THE TASK OF "APPRAISING) THE EFFECTS
OF THE CURTAILMENT OF COMPETITION WHICH WILL RESULT FROM (A) PROPOSED
CONSOLIDATION AND CONSIDER THEM ALONG WITH THE ADVANTAGES OF IMPROVED
SERVICE, SAFER OPERATION, LOWER COSTS, ETC., TO DETERMINE WHETHER THE
CONSOLIDATION WILL ASSIST IN EFFECTUATING THE OVER-ALL TRANSPORTATION
POLICY."  MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 87.  PP.
511-513. 

(C) THE ICC'S DETERMINATION THAT THE CONDITIONS AGREED TO BY THE
APPLICANTS, THE ATTRITION AGREEMENTS WITH THE EMPLOYEES, THE ENHANCED
SAVINGS, AND MANIFOLD SERVICE IMPROVEMENTS TO SHIPPERS AND THE PUBLIC,
OUTWEIGHED THE LOSS OF COMPETITION BETWEEN THE NORTHERN LINES, IS
SUPPORTED BY SUBSTANTIAL EVIDENCE.  PP. 513-516. 

2.  THE ICC'S DETERMINATION THAT THE STOCK EXCHANGE RATIO APPLICABLE
TO NORTHERN PACIFIC STOCKHOLDERS AND GREAT NORTHERN STOCKHOLDERS, WHICH
WAS ESTABLISHED, AFTER PROTRACTED ARM'S-LENGTH NEGOTIATIONS, WITH THE
APPROVAL OF THE COMPANIES AND THE LARGE MAJORITY OF THEIR STOCKHOLDERS,
IS JUST AND REASONABLE, IS SUPPORTED BY SUBSTANTIAL EVIDENCE, AND THE
ICC'S REFUSAL TO REOPEN THE RECORD FOR EVIDENCE TO UPDATE IT WAS NOT AN
ABUSE OF DISCRETION.  PP. 516-522. 

3.  THE ICC FOUND ON THE BASIS OF SUBSTANTIAL EVIDENCE THAT THE
MERGER'S LONG-RUN EFFECT WOULD BENEFIT THE NORTHERN TIER COMMUNITIES,
INCLUDING AUBURN, EVEN IF THAT CITY'S YARD CLOSED IF THE MERGER WAS
APPROVED.  SINCE IT NOW APPEARS THAT THE AUBURN YARD WILL REMAIN OPEN,
THE ANTICIPATED PRINCIPAL HARM TO THE CITY BECAUSE OF THE MERGER HAS
DISAPPEARED, AND A FORTIORI THE ICC'S REFUSAL TO TAKE FURTHER EVIDENCE
ON THE MERGER'S IMPACT ON THE CITY WAS NOT AN ABUSE OF ITS DISCRETION. 
PP. 522-524. 

4.  THE ICC DID NOT ERR IN REFUSING TO DISAPPROVE THE MERGER BECAUSE
OF THE LIVINGSTON ANTI-MERGER COMMITTEE'S CONTENTION THAT ACQUISITION
BY NP OF ITS RAILROAD PROPERTY RESULTED FROM INVALID FORECLOSURE
PROCEEDINGS, AS THE ICC COULD, FOR PURPOSES OF THE MERGER PROCEEDING,
PROPERLY RELY ON "EXISTING JUDICIAL RECORDS SUPPLEMENTED BY OPINIONS OF
TWO ATTORNEYS GENERAL" ON THE TITLE QUESTION WHICH WERE ADVERSE TO THE
COMMITTEE'S CHALLENGE; NOR DO THE CHARTER PROVISIONS OF NP'S
PREDECESSOR IN INTEREST FORECLOSE THE ICC'S APPROVAL OF THE MERGER. 
PP. 524-530. 

296 F.SUPP.  853, AFFIRMED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

THE INTERSTATE COMMERCE COMMISSION ORDERS THAT GIVE RISE TO THESE
APPEALS GROW OUT OF APPLICATIONS SEEKING APPROVAL OF A MERGER PLAN
FILED BY THE GREAT NORTHERN RAILWAY COMPANY AND THE NORTHERN PACIFIC
RAILWAY COMPANY (COLLECTIVELY THE NORTHERN LINES), AND THREE OF THEIR
SUBSIDIARIES-- THE PACIFIC COAST RAILROAD COMPANY, THE CHICAGO,
BURLINGTON & QUINCY RAILROAD COMPANY (BURLINGTON), AND THE SPOKANE,
PORTLAND & SEATTLE RAILWAY COMPANY (SP&S).  THE COMMISSION APPROVED THE
MERGER AND A THREE-JUDGE FEDERAL DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA AFFIRMED THE ORDERS OF THE COMMISSION.  /1/  WE AFFIRM THE
JUDGMENT OF THE DISTRICT COURT. 

THE FACTUAL AND HISTORICAL SETTING OF THE MERGER IS IMPORTANT TO AN
UNDERSTANDING OF OUR DISPOSITION OF THESE APPEALS.  GREAT NORTHERN
OPERATES SOME 8,200 MILES OF ROAD LOCATED IN 10 STATES AND TWO CANADIAN
PROVINCES.  NORTHERN PACIFIC HAS APPROXIMATELY 6,200 MILES OF TRACK IN
SEVEN STATES AND ONE CANADIAN PROVINCE.  THE NORTHERN LINES OPERATE
LARGELY IN THE AREA WEST OF ST. PAUL, MINNEAPOLIS, AND DULUTH, RUNNING
FROM THESE POINTS ACROSS THE NORTHERN TIER OF STATES (MINNESOTA, NORTH
DAKOTA, MONTANA, IDAHO, AND WASHINGTON) TO SPOKANE, TACOMA, AND
PORTLAND.  THE NORTHERN PACIFIC'S TRACKS RUN GENERALLY SOMEWHAT TO THE
SOUTH OF THE GREAT NORTHERN'S.  THE NORTHERN LINES JOINTLY OWN AND
CONTROL THE BURLINGTON AND THE SP&S, WHILE THE GREAT NORTHERN OWNS AND
CONTROLS THE PACIFIC COAST RAILROAD COMPANY.  THE BURLINGTON'S 8,468
MILES OF TRACK EXTEND FROM CHICAGO TO THE TWIN CITIES AND GENERALLY
SOUTHWESTERLY TO MISSOURI, KANSAS, COLORADO, AND MONTANA.  BY ITS
SUBSIDIARIES /2/  THE BURLINGTON REACHES THE GULF OF MEXICO AT HOUSTON
AND GALVESTON.  THE SP&S HAS 599 MILES OF ROAD IN OREGON AND
WASHINGTON, OF WHICH 515 ARE MAINLINE.  THIS MAINLINE PROVIDES THE MOST
DIRECT ROUTE FROM SPOKANE TO PORTLAND AND IS OF STRATEGIC IMPORTANCE TO
THE NORTHERN LINES BECAUSE SPOKANE LIES ON THEIR MAIN TRANSCONTIENTAL
ROUTES AND PORTLAND IS AN IMPORTANT WEST COAST TERMINAL FOR BOTH
ROADS.  THE PACIFIC COAST HAS 32 MILES OF TRACK ALL IN KING COUNTY,
WASHINGTON; ITS ROLLING STOCK AND MOTIVE POWER ARE LEASED FROM THE
GREAT NORTHERN. 

RAIL COMPETITION IS THE AREAS SERVED BY THE NORTHERN LINES IS
PRINCIPALLY BETWEEN THREE CARRIERS:  THE GREAT NORTHERN, THE NORTHERN
PACIFIC, AND THE CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD
COMPANY (MILWAUKEE).  BECAUSE THE BURLINGTON'S ROUTES LARGELY
COMPLEMENT THOSE OF THE NORTHERN LINES, THERE IS NO SUBSTANTIAL
COMPETITION BETWEEN THE BURLINGTON AND ITS CORPORATE PARENTS.  THE
GREAT NORTHERN AND THE NORTHERN PACIFIC OVERSHADOW THE MILWAUKEE AND
ARE EACH THE PRINCIPAL COMPETITOR OF THE OTHER.  THE NORTHERN LINES
CARRY THE LION'S SHARE OF TRAFFIC BETWEEN THE TWIN CITIES AND DULUTH
AND THE PACIFIC NORTHWEST, BOTH ROADS HAVING GOOD ACCESS TO THE PACIFIC
NORTHWEST THROUGH CONTROL OF CERTAIN VITAL GATEWAYS IN THE AREA. 
ALTHOUGH THE MILWAUKEE WAS DESIGNED AND CONSTRUCTED TO BE A COMPETITOR
OF THE NORTHERN LINES, IT HAS NEVER ACCOUNTED FOR A LARGE PERCENTAGE OF
THE CARRIAGE ACROSS THE NORTHERN TIER STATES TO THE PACIFIC NORTHWEST;
IT HAS NEVER BECOME A RATE-MAKING RAILROAD.  THE EXPLANATION FOR THIS
IS THAT ALTHOUGH POSSESSING SUPERIOR GRADES AND A SHORTER ROUTE WEST OF
THE TWIN CITIES, IT HAS NEVER HAD ADEQUATE ACCESS TO THE GATEWAYS OF
THE PACIFIC NORTHWEST, LARGELY BECAUSE OF THE NORTHERN LINES' CONTROL
OF THE SP&S.  AS A RESULT, ITS ROLE HAS BEEN THAT OF A SHORT-HAUL
CARRIER FEEDING MUCH PROFITABLE LONG-HAUL TRAFFIC TO THE NORTHERN LINES
AT ST. PAUL AND MINNEAPOLIS. 

THE POPULATION OF THE NORTHERN TIER REGION TRAVERSED BY THE NORTHERN
LINES AND THE MILWAUKEE IS CONCENTRATED LARGELY IN ITS EASTERLY AND
WESTERLY EXTREMITIES.  THE NORTHERN TIER IS RICH IN AGRICULTURAL AND
MINERAL RESOURCES, AND EMBRACES THE COUNTRY'S RICHEST TIMBER RESERVES. 
HOWEVER, THE MARKETS FOR THE PRODUCTS OF THE NORTHERN TIER ARE LIMITED
IN NUMBER AND DISTANT FROM THE REGION; THE MAJOR SHIPMENTS MUST MOVE
EAST.  THUS, TRANSPORTATION CAPABLE OF CARRYING ITS BULK PRODUCTS AT A
RATE LOW ENOUGH TO PERMIT PARTICIPATION IN THOSE MARKETS IS OF EXTREME
IMPORTANCE TO THE REGION.  RAIL TRANSPORTATION WELL SERVES THIS NEED. 
THERE HAS BEEN HISTORICALLY, HOWEVER, AN IMBALANCE BETWEEN THE LOW
RATES AGRICULTURAL, MINERAL, AND FOREST PRODUCE TRAFFIC FLOWING OUT OF
THE REGION, AND HIGH-RATED MANUFACTURED GOODS FLOWING INTO THE REGION. 
THE FORMER IS TRAFFIC INHERENTLY SUITED TO RAIL TRANSPORT, BUT THE
LATTER IS SUBJECT TO INCURSIONS FROM OTHER MODES OF CARRIAGE.  ALTHOUGH
WATER TRAFFIC IN THE NORTHERN TIER IS VIRTUALLY NONEXISTENT, TRUCK
COMPETITION HAS BEEN PRESENT FOR SOME TIME AND IS GROWING. 

NORTHERN PACIFIC AND GREAT NORTHERN HAVE LONG SOUGHT TO MERGE INTO A
SINGLE UNIFIED TRANSPORTATION SYSTEM.  IN PEARSALL V. GREAT NORTHERN R.
CO., 161 U.S. 646 (1896), THIS COURT RULED THAT AN ATTEMPT TO
CONSOLIDATE THE OPERATION OF THE TWO ROADS WAS CONTRARY TO A MINNESOTA
STATUTE PROHIBITING THE CONSOLIDATION OF PARALLEL AND COMPETING
RAILROADS.  THE NEXT MERGER ATTEMPT WAS STRUCK DOWN IN NORTHERN
SECURITIES CO. V. UNITED STATES, 193 U.S. 197 (1904), AS CONTRARY TO
THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C. 1 ET SEQ. /3/  THEN THE
DECLINING FORTUNES OF RAIL CARRIERS LED CONGRESS TO ENACT THE
TRANSPORTATION ACT OF 1920, 41 STAT. 456, WHICH CHARGED THE INTERSTATE
COMMERCE COMMISSION WITH THE AFFIRMATIVE RESPONSIBILITY TO FORMULATE
PLANS FOR SIMPLIFYING THE NATION'S RAIL TRANSPORT "INTO A LIMITED
NUMBER OF SYSTEMS."  41 STAT. 481.  THIS ENGENDERED A THIRD EFFORT,
UNDER THE COMMISSION'S AUSPICES, TO MERGE THE NORTHERN LINES.  /4/
HOWEVER, THIS EFFORT FOUNDERED ON THE COMMISSION'S REQUIREMENT THAT THE
BURLINGTON BE EXCLUDED FROM THE NORTHERN LINES SYSTEM, AND THE NORTHERN
LINES WERE UNWILLING TO CONSOLIDATE WITHOUT THE BURLINGTON. 

        I

        THE PRESENT MERGER 

IN 1955 THE NORTHERN LINES BEGAN INVESTIGATING ANEW THE POSSIBILITY
OF A MERGER THAT WOULD COMBINE FIVE ROADS-- THE BURLINGTON, THE SP&S,
THE PACIFIC COAST, AND THE NORTHERN LINES-- TO FORM A NEW COMPANY. 
EXTENSIVE NEGOTIATIONS DEALING WITH ALL PHASES OF THE PROPOSED MERGER
WERE COMMENCED.  FIVE YEARS LATER, IN 1960, AN AGREEMENT WAS FINALLY
REACHED.  IT PROVIDED THAT THE NORTHERN LINES, THE BURLINGTON, AND THE
PACIFIC COAST BE MERGED INTO NEW COMPANY, WHICH WAS TO ACQUIRE THE
SUBSIDIARIES OF THE MERGED COMPANIES AS WELL AS ALL THEIR LEASEHOLD,
TRACKAGE, AND JOINT-USE RIGHTS IN OTHER CARRIERS AND THE TERMINALS
INCIDENT THERETO.  NEW COMPANY WOULD LEASE THE SP&S, THEREBY ACQUIRING
THAT ROAD'S SUBSIDIARIES AND TRACKAGE RIGHTS. 

THE MERGER AGREEMENT FURTHER PROVIDED THAT NORTHERN PACIFIC
SHAREHOLDERS WOULD RECEIVE COMMON STOCK OF NEW COMPANY ON A SHARE-FOR
SHARE BASIS.  GREAT NORTHERN STOCKHOLDERS WOULD RECEIVE ONE SHARE OF
NEW COMPANY COMMON FOR EACH SHARE OF GREAT NORTHERN AND, IN ADDITION,
ONE-HALF SHARE OF NEW COMPANY $10 PAR 5 1/2% PREFERRED FOR EACH SHARE
OF GREAT NORTHERN HELD AT THE DATE OF THE MERGER, THIS PREFERRED STOCK
TO BE RETIRED OVER A 25-YEAR PERIOD, BEGINNING AT THE FIFTH ANNIVERSARY
OF THE MERGER, AND TO BE REDEEMABLE AT THE OPTION OF NEW COMPANY ANY
TIME AFTER THE FIFTH ANNIVERSARY OF THE MERGER.  THE BURLINGTON STOCK
HELD BY THE NORTHERN LINES, AMOUNTING TO 97.18% OF THE TOTAL SHARES
OUTSTANDING, WOULD BE CANCELED AND THE REMAINING SHAREHOLDERS GIVEN
3.25 SHARES OF NEW COMPANY COMMON FOR EACH SHARE OF BURLINGTON. 

        COMMISSION PROCEEDINGS 

FIRST REPORT.-- AS A RESULT OF THESE RENEWED MERGER NEGOTIATIONS
BETWEEN 1955 AND 1960, APPLICATIONS WERE FILED IN 1961 UNDER SEC. 5 OF
THE INTERSTATE COMMERCE ACT, 24 STAT. 380, AS AMENDED, 49 U.S.C. 5,
SEEKING APPROVAL OF THE MERGER AND AUTHORIZATION FOR THE ISSUANCE OF
STOCK AND SECURITIES, THE ASSUMPTION OF OBLIGATIONS AND OTHER AUTHORITY
NECESSARY TO EFFECTUATE THE MERGER.  /5/  EXTENSIVE PUBLIC HEARINGS
WERE HELD IN 1961 AND 1962 AT WHICH THE DEPARTMENT OF JUSTICE, THE
DEPARTMENT OF AGRICULTURE, VARIOUS RAILWAY EMPLOYEE GROUPS, NINE STATES
OR STATE REGULATORY AGENCIES, AND THE MILWAUKEE AND THE CHICAGO & NORTH
WESTERN RAILWAY COMPANY (NORTH WESTERN), INTER ALIA, ACTIVELY OPPOSED
THE MERGER AS PROPOSED.  SHIPPERS AND RELATED INTEREST GROUPS APPEARED
IN SUPPORT OF THE PROPOSAL.  THE HEARING EXAMINER SUBMITTED A REPORT IN
1964 RECOMMENDING APPROVAL OF THE MERGER AND THE RELATED TRANSACTIONS,
SUBJECT TO CERTAIN PROTECTIVE CONDITIONS.  THE COMMISSION HEARD ORAL
ARGUMENT AND IN A REPORT DATED MARCH 31, 1966 (FIRST REPORT), REJECTED
THE EXAMINER'S RECOMMENDATION AND DISAPPROVED THE MERGER BY A VOTE OF 6
TO 5.  /6/ 

THE APPLICANTS PETITIONED FOR A RECONSIDERATION, ASSERTING THAT THEY
WERE WILLING TO ACCEPT ALL PROTECTIVE CONDITIONS SOUGHT BY THE
MILWAUKEE AND ANOTHER AFFECTED ROAD, THE NORTH WESTERN, THAT THEY HAD
ENTERED INTO ATTRITION AGREEMENTS WITH THE OBJECTING UNIONS FOR THE
PROTECTION OF THE EMPLOYEES, AND THAT THE MERGER WOULD YIELD DOLLAR
SAVINGS GREATER THAN THOSE ESTIMATED IN THE FIRST REPORT.  WHILE THIS
PETITION WAS PENDING BEFORE THE COMMISSION, THE APPLICANTS ENTERED INTO
AGREEMENTS WITH THE NORTH WESTERN AND THE MILWAUKEE WHICH PROVIDED THAT
THE MERGER APPLICANTS WOULD AGREE TO ALL THE CONDITIONS SOUGHT BY THOSE
ROADS; THE MILWAUKEE AND THE NORTH WESTERN THEN AGREED TO SUPPORT THE
MERGER.  /7/  THEREAFTER, THESE ROADS WITHDREW THEIR OPPOSITION TO THE
MERGER AND URGED THE COMMISSION TO APPROVE IT.  APPROVAL WAS ADVOCATED
OR OBJECTIONS WITHDRAWN BY A NUMBER OF PARTIES WHO HAD PREVIOUSLY
EITHER COMPLETELY OPPOSED THE MERGER OR OPPOSED IT ABSENT IMPOSITION OF
ADEQUATE PROTECTIVE CONDITIONS.  THESE INCLUDE THE DEPARTMENT OF
AGRICULTURE, THE PUBLIC UTILITY COMMISSIONER OF OREGON, AND THE STATE
OF NORTH DAKOTA, SOUTH DAKOTA, IOWA, WISCONSIN, AND MICHIGAN.  /8/ 

SECOND REPORT.-- ON JANUARY 4, 1967, THE COMMISSION GRANTED THE
APPLICATION AND REOPENED THE PROCEEDINGS FOR RECONSIDERATION AND
FURTHER HEARINGS.  ALTHOUGH THE ORDER BY ITS TERMS REOPENED THE
PROCEEDINGS ON ALL ISSUES, THE HEARING WAS LIMITED TO TAKING EVIDENCE
ON THE QUESTION OF THE AMOUNT OF SAVINGS THE MERGER WOULD PRODUCE IN
LIGHT OF THE AGREEMENT BETWEEN THE APPLICANTS AND THE MILWAUKEE AND THE
NORTH WESTERN, AND THE OTHER CHANGES RELEVANT TO SAVINGS WHICH HAD
OCCURRED AFTER THE CLOSE OF THE FIRST HEARING.  ORAL ARGUMENTS
FOLLOWED.  ON NOVEMBER 30, 1967, THE COMMISSION HANDED DOWN A REPORT
AND ORDER (SECOND REPORT) APPROVING THE PROPOSED MERGER BY A VOTE OF 8
TO 2 AS CONSISTENT WITH THE PUBLIC INTEREST AND IMPOSING CERTAIN
CONDITIONS TO PROTECT OTHER CARRIERS.  /9/  ON APRIL 11, 1968, THE
COMMISSION DENIED AN APPLICATION FOR RECONSIDERATION.  /10/

        DISTRICT COURT PROCEEDINGS 

THE UNITED STATES, ACTING THROUGH THE DEPARTMENT OF JUSTICE, FILED A
COMPLAINT ON MAY 9, 1968, IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA CHALLENGING THE COMMISSION ORDER APPROVING THE
MERGER.  OTHER PARTIES INTERVENED, SOME AS PLAINTIFFS /11/  AND SOME AS
DEFENDANTS.  /12/ AFTER PRELIMINARY PROCEEDINGS HAD RESULTED IN A STAY
OF THE COMMISSION'S ORDER PENDENTE LITE, THE CASE WAS SUBMITTED ON THE
MERITS TO THE THREE-JUDGE COURT DESIGNATED IN ACCORDANCE WITH 28 U.S.C.
2325 AND 2284.  THE COURT, IN AN OPINION BY SENIOR CIRCUIT JUDGE
CHARLES FAHY, UNANIMOUSLY SUSTAINED THE COMMISSION, HOLDING THAT IN
APPROVING THE MERGER AND THE RELATED TRANSACTIONS THE SOMMISSION WAS
GUIDED BY THE APPLICABLE LEGAL PRINCIPLES AND THAT ITS FINDINGS WERE
SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE COURT DISMISSED THE COMPLAINTS,
VACATED THE STAY PENDENTE LITE, AND THEN STAYED ITS ORDER PENDING
APPEAL TO THIS COURT.  UPON THE FILING OF APPEALS WITH THIS COURT, WE
ORDERED A FURTHER STAY PENDING FINAL DISPOSITION. 

        II

        THE APPEALS HERE 

FOUR APPEALS WERE TAKEN FROM THE DISTRICT COURT'S JUDGMENT; THE
DEPARTMENT OF JUSTICE (NO. 28), THE NORTHERN PACIFIC STOCKHOLDERS'
PROTECTIVE COMMITTEE (NO. 38), THE CITY OF AUBURN, WASHINGTON (NO. 43),
AND THE LIVINGSTON ANTI-MERGER COMMITTEE (NO. 44). 

EACH OF THE FOUR APPELLANTS ATTACKS THE APPROVAL OF THE MERGER ON
DIFFERENT GROUNDS.  BECAUSE THESE CHALLENGES COVER EVERY ASPECT OF THE
MERGER, AND BECAUSE OF THE RATHER COMPLEX EXPOSITIONS OF FACT NECESSARY
TO THE DISPOSITION OF EACH OBJECTION, THESE APPEALS WILL BE DEALT WITH
SERIATIM.  WITH THE CASES IN THIS POSTURE THE COURT MUST REVIEW THE
PROCEEDINGS BEFORE THE COMMISSION TO "DETERMINE WHETHER THE COMMISSION
HAS PROCEEDED IN ACCORDANCE WITH LAW AND WHETHER ITS FINDINGS AND
CONCLUSIONS ACCORD WITH THE STATUTORY STANDARDS AND ARE SUPPORTED BY
SUBSTANTIAL EVIDENCE."  PENN-CENTRAL MERGER AND N & W INCLUSION CASES,
389 U.S. 486, 499 (1968).  IT SHOULD BE EMPHASIZED, HOWEVER, AS MR.
JUSTICE FORTAS NOTED, SPEAKING FOR THE COURT IN A SIMILAR CONTEXT,
"(WITH RESPECT TO THE MERITS OF THE MERGER . . . OUR TASK IS LIMITED. 
WE DO NOT INQUIRE WHETHER THE MERGER SATISFIES OUR OWN CONCEPTION OF
THE PUBLIC INTEREST.  DETERMINATION OF THE FACTORS RELEVANT TO THE
PUBLIC INTEREST IS ENTRUSTED BY THE LAW PRIMARILY TO THE COMMISSION
SUBJECT TO THE STANDARDS OF THE GOVERNING STATUTE."  ID., AT 498-499. 
THE GOVERNING STATUTE HERE IS SEC. 5 OF THE INTERSTATE COMMERCE ACT,
AS AMENDED BY THE TRANSPORTATION ACT OF 1940, 54 STAT. 905, 49 U.S.C.
5.  THE ACT PROVIDES THAT THE COMMISSION IS TO APPROVE A PROPOSED
MERGER WHEN IT IS "CONSISTENT WITH THE PUBLIC INTEREST" AND THE TERMS
OF THE PROPOSAL ARE "JUST AND REASONABLE."  IN DETERMINING WHETHER THIS
STANDARD IS MET, THE COMMISSION IS TO 

"GIVE WEIGHT TO THE FOLLOWING CONSIDERATIONS, AMONG OTHERS:  (1) THE
EFFECT OF THE PROPOSED TRANSACTION UPON ADEQUATE TRANSPORTATION SERVICE
TO THE PUBLIC; (2) THE EFFECT UPON THE PUBLIC INTEREST OF THE
INCLUSION, OR FAILURE TO INCLUDE, OTHER RAILROADS IN THE TERRITORY
INVOLVED IN THE PROPOSED TRANSACTION; (3) THE TOTAL FIXED CHARGES
RESULTING FROM THE PROPOSED TRANSACTION; AND (4) THE INTEREST OF THE
CARRIER EMPLOYEES AFFECTED."  49 U.S.C. 5(2)(C).  IN ADDITION TO THE
FOUR FACTORS LISTED ABOVE, THE COMMISSION MUST ALSO CONSIDER THE
ANTICOMPETITIVE EFFECTS OF ANY MERGER OR CONSOLIDATION, BECAUSE UNDER
SEC. 5(11) OF THE INTERSTATE COMMERCE ACT ANY TRANSACTION APPROVED BY
THE COMMISSION IS RELIEVED OF THE OPERATION OF THE ANTITRUST LAWS. 
MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 83-87 (1944). 

IN ITS FIRST REPORT THE COMMISSION FOUND THAT THE MERGER WOULD
RESULT IN IMPROVED SERVICE TO SHIPPERS IN AREAS SERVED BY THE NORTHERN
LINES BECAUSE IT WOULD ENABLE THE ROADS TO MAKE MORE EFFICIENT USE OF
THEIR FACILITIES AND WOULD PERMIT THE USE OF THE SHORTEST AND SWIFTEST
INTERNAL ROUTES AVAILABLE.  IN ADDITION, THE MERGER WAS FOUND TO AFFORD
ESTIMATED SAVINGS OF APPROXIMATELY $25 MILLION PER YEAR BY THE TENTH
YEAR A?TER MERGER.  HOWEVER, THE COMMISSION ALSO FOUND THAT AS A
CONSEQUENCE OF THE MERGER MORE THAN 5,200 JOBS WOULD BE ELIMINATED,
THIS BEING A SIGNIFICANT SOURCE OF THE REDUCED OPERATING COSTS.  THE
COMMISSION THEN ANALYZED THE ANTICOMPETITIVE IMPACT OF THE PROPOSAL AND
FOUND IT WOULD ELIMINATE SUBSTANTIAL COMPETITION BETWEEN THE NORTHERN
LINES IN THE NORTHERN TIER.  THE COMMISSION REASONED THAT EVEN WITH
PROTECTIVE CONDITIONS ATTACHED TO THE MERGER FOR THE BENEFIT OF THE
MILWAUKEE, IT WOULD REMAIN A WEAK CARRIER IN THE NORTHERN TIER WHEN
COMPARED WITH NEW COMPANY.  THE COMMISSION, BY A VOTE OF 6 TO 5, AS
NOTED EARLIER, CONCLUDED THAT THE PROPOSED MERGER PLAN DID NOT AFFORD
BENEFITS OF SUCH SCOPE AND IMPORTANCE AS TO OUTWEIGH THE LESSENING OF
RAIL COMPETITION IN THE NORTHERN TIER; THE MERGER WAS DISAPPROVED. 

WHEN THE COMMISSION REOPENED THE PROCEEDINGS IN 1967, IT CONSIDERED
ADDITIONAL EVIDENCE INCLUDING THE CHANGED POSITIONS OF SOME OF THE
MAJOR OBJECTORS, AND NEW EVIDENCE ON THE SAVINGS TO BE REALIZED FROM
THE MERGER; THE SECOND REPORT WAS THEN ISSUED.  THE COMMISSION FOUND
THAT RATHER THAN THE $25 MILLION PREVIOUSLY ESTIMATED, IN FACT MORE
THAN THE $40 MILLION PER YEAR IN SAVINGS WOULD BE REALIZED BY THE TENTH
YEAR AFTER MERGER.  IT ALSO NOTED THAT AGREEMENTS ENTERED INTO BY THE
APPLICANTS AND THEIR EMPLOYEES HAD REMOVED OBJECTIONS OF VARIOUS UNIONS
TO THE MERGER AND THAT NO JOBS WOULD BE ELIMINATED EXCEPT IN THE NORMAL
COURSE OF ATTRITION.  ASIDE FROM THESE CHANGES, AND THE ACCEPTANCE BY
THE MERGER APPLICANTS OF PROTECTIVE CONDITIONS SOUGHT BY THE MILWAUKEE,
THE RECORD BEFORE THE COMMISSION WAS THE SAME AS THAT ON WHICH THE
FIRST REPORT WAS BASED.  THE SECOND REPORT ACKNOWLEDGED THAT THE FIRST
REPORT HAD FAILED TO GIVE APPROPRIATE WEIGHT TO ONE OF THE AIMS OF THE
NATIONAL TRANSPORTATION POLICY AND SEC. 5 OF THE INTERSTATE COMMERCE
ACT, TO FACILITATE RAIL MERGERS "CONSISTENT WITH THE PUBLIC INTEREST"
IN THE DEVELOPMENT OF A COMPREHENSIVE NATIONAL TRANSPORT SYSTEM, AND
THAT THIS HAD LED THE COMMISSION TO VIEW THE MERGER PROPOSAL TOO
STRINGENTLY.  IT THEN WENT ON TO RE-EXAMINE THE ANTICOMPETITIVE EFFECTS
OF THE MERGER, WEIGHING THEM AGAINST THE SAVINGS AND BENEFITS TO THE
PUBLIC, SHIPPERS, AND THE ROADS, AND, ACCENTUATING THE NEW AND
STRENGTHENED COMPETITIVE POSTURE OF THE MILWAUKEE, IT CONCLUDED THAT
THE MERGER PROPOSAL SHOULD BE APPROVED BECAUSE ITS BENEFITS OUTWEIGHED
ITS ANTICOMPETITIVE EFFECTS IN THE NORTHERN TIER REGION. 

THAT THIS WAS NOT AN EASY PROBLEM FOR THE COMMISSION IS ATTESTED BY
THE LENGTHY HISTORY OF ATTEMPTS TO MERGE THESE LINES WHICH DATES BACK
THREE-QUARTERS OF A CENTURY.  THE EFFORTS TO ESTABLISH A MORE UNIFIED
RAIL TRANSPORTATION SYSTEM IN THE NORTHERN TIER REPRESENT A 20TH
CENTURY PHASE OF THE DEVELOPMENT OF THE AMERICAN WEST; IT BRACKETS A
PERIOD OF ENORMOUS GROWTH AND CHANGE, AND OF NEW DEVELOPMENTS IN
TRANSPORTATION AND PUBLIC NEEDS.  AGAINST THIS BACKGROUND IT IS NOT
SURPRISING THAT THE MEMBERS OF THE COMMISSION WERE DIVIDED 6 TO 5
AGAINST THE MERGER ON THE FIRST REPORT IN 1966 AND 8 TO 2 IN FAVOR OF
THE MERGER ON THE SECOND REPORT IN 1967 AFTER CHANGES HAD BEEN MADE IN
THE PLAN TO MEET MANY OF THE OBJECTIONS RAISED.  NOR IS IT REMARKABLE
THAT TWO GREAT DEPARTMENTS OF GOVERNMENT, EACH CHARGED WITH
RESPONSIBILITY TO PROTECT THE PUBLIC INTEREST, TOOK OPPOSING POSITIONS;
VIGOROUS ADVOCACY OF DIVERGENT VIEWS ON THIS DIFFICULT PROBLEM HAS
NARROWED AND SHARPENED THE ISSUES AND AIDED THE COURT IN THEIR
RESOLUTION, ENSURING THAT NO FACTOR WHICH OUGHT TO BE CONSIDERED WOULD
ELUDE OUR ATTENTION. 

APPELLANTS' CONTENTIONS 

(A) NO. 28, DEPARTMENT OF JUSTICE.-- THE UNITED STATES, THROUGH THE
ANTITRUST DIVISION OF THE JUSTICE DEPARTMENT, CHALLENGES THE
COMMISSION'S APPROVAL OF THE MERGER PRIMARILY ON THE GROUND THAT THE
COMMISSION IN THE SECOND REPORT DID NOT PROPERLY APPLY THE STANDARD OF
SEC. 5(2)(B) OF THE INTERSTATE COMMERCE ACT IN DETERMINING THAT THE
MERGER IS CONSISTENT WITH THE PUBLIC INTEREST.  THE DEPARTMENT CONTENDS
THAT UNDER THE STATUTE WHEN A PROPOSED MERGER WILL RESULT IN A
SUBSTANTIAL DIMINUTION OF COMPETITION BETWEEN TWO FINANCIALLY HEALTHY,
COMPETING ROADS, ITS ANTICOMPETITIVE EFFECTS SHOULD PRECLUDE THE
APPROVAL OF THE MERGER ABSENT A CLEAR SHOWING THAT A SERIOUS
TRANSPORTATION NEED WILL BE MET OR IMPORTANT PUBLIC BENEFITS WILL BE
PROVIDED BEYOND THE SAVINGS AND EFFICIENCIES THAT NORMALLY FLOW FROM A
MERGER.  THE DEPARTMENT URGES THAT THE INSTANT CASE PRESENTS A MERGER
BETWEEN TWO FINANCIALLY HEALTHY CARRIERS, EACH OF WHICH IS THE PRIME
COMPETITOR OF THE OTHER IN THE AREA SERVED.  ADMITTEDLY THE COMMISSION
FOUND IN ITS FIRST REPORT THAT THE MERGER WOULD RESULT IN A "DRASTIC
LESSENING OF COMPETITION."  THE DEPARTMENT ARGUES THAT BECAUSE NO
BENEFITS ARE SHOWN TO FLOW FROM THE MERGER BEYOND THE ECONOMIES AND
EFFICIENCIES NORMALLY RESULTING FROM UNIFIED OPERATIONS, THE COMMISSION
HAS NOT SATISFIED THE STATUTORY STANDARD AND THAT THE DISTRICT COURT
ERRED IN REFUSING TO ENJOIN THE MERGER. 

THE DEPARTMENT MAINTAINS THAT PRIOR TO 1920 THE ANTITRUST LAWS AND
THEIR UNDERLYING POLICIES APPLIED WITH FULL FORCE TO RAILROADS AND THAT
THE TRANSPORTATION ACT OF 1920, WHICH COMMANDED AN AFFIRMATIVE
DEVELOPMENT BY THE COMMISSION OF A NATIONWIDE PLAN "FOR THE
CONSOLIDATION OF THE RAILWAY PROPERTIES OF THE CONTINENTAL UNITED
STATES INTO A LIMITED NUMBER OF SYSTEMS," 41 STAT. 481, WAS PRIMARILY
INTENDED TO PROMOTE THE ABSORPTION OF FINANCIALLY WEAK BY STRONG
CARRIERS.  TO THE EXTENT THAT THE 1920 ACT DID NOT INTEND TO ENCOURAGE
RAIL MERGERS PRODUCING ONLY THE USUAL OR "NORMAL" KINDS OF MERGER
BENEFITS, THE DEPARTMENT CONTENDS THAT THE POLICIES OF THE ANTITRUST
LAWS REMAIN THE GUIDING STANDARD BY WHICH THESE CONSOLIDATIONS ARE TO
BE JUDGED.  THE TRANSPORTATION ACT OF 1940, ACCORDING TO THE
DEPARTMENT, DID NOT ALTER THIS POLICY, BUT ONLY ELIMINATED THE
COMMISSION'S DUTY TO FORMULATE A NATIONAL PLAN AND TO CONFINE MERGERS
TO THE FOUR CORNERS OF THIS PLAN.  THE DEPARTMENT SUGGESTS THAT WHEN
THE COMMISSION IS DETERMINING WHETHER A MERGER OR CONSOLIDATION IS
CONSISTENT WITH THE PUBLIC INTEREST, IT MUST ANALYZE THE MERGER IN
TERMS OF ITS ANTICOMPETITIVE IMPACT AND, IF THAT IMPACT WOULD BE GREAT,
THEN DETERMINE WHETHER THE MERGER IS REQUIRED BY A SERIOUS
TRANSPORTATION NEED OR NECESSARY TO SECURE IMPORTANT PUBLIC BENEFITS. 
THIS STANDARD, IT URGES, IS "CONSISTENT WITH BOTH THE LEGISLATIVE
HISTORY OF (SEC. 5) AND, MORE GENERALLY, WITH THE GOAL OF SUBSTANTIAL
SIMPLIFICATION OF RAILROAD SYSTEMS THAT UNDERLAY THE TRANSPORTATION
ACTS OF BOTH 1920 AND 1940."  /12/ 

THE DEPARTMENT OF JUSTICE IS CORRECT IN STATING THAT ONE FOCAL POINT
OF CONCERN THROUGHOUT THE LEGISLATIVE CONSIDERATION OF THE PROBLEMS OF
RAILROADS HAS BEEN THE WEAK CARRIER AND ITS PRESERVATION THROUGH
COMBINATION WITH THE STRONG.  CONGRESS SAW THAT AS ONE-- BUT ONLY ONE--
MEANS TO PROMOTE ITS OBJECTIVES.  THE 1920 STATUTE AS A WHOLE ALSO
EMBODIED CONCERN FOR ECONOMY AND EFFICIENCY IN RAIL OPERATIONS.  SEE
RAILROAD COMMISSION OF CALIFORNIA V. SOUTHERN PACIFIC CO., 264 U.S.
331, 341 (1924); TEXAS & PACIFIC R. CO. V. GULF, COLORADO & SANTA FE R.
CO., 270 U.S. 266, 277 (1926); TEXAS V. UNITED STATES, 292 U.S. 522,
530 (1934); UNITED STATES V. LOWDEN, 308 U.S. 225, 232 (1939).  THUS, A
RAIL MERGER THAT FURTHERS THE DEVELOPMENT OF A MORE EFFICIENT
TRANSPORTATION UNIT AND ONE THAT RESULTS IN THE JOINING OF A "SICK"
WITH A STRONG CARRIER SERVE EQUALLY TO PROMOTE THE LONG-RANGE
OBJECTIVES OF CONGRESS AND, UPON APPROVAL BY THE COMMISSION, BOTH ARE
IMMUNIZED FROM THE OPERATION OF THE ANTITRUST LAWS.  THE POLICY OF THE
1920 ACT HAS BEEN CONSISTENTLY INTERPRETED IN THIS WAY.  WE FIND NO
BASIS FOR READING THE CONGRESSIONAL OBJECTIVE AS CONFINING THESE
MERGERS TO COMBINATIONS BY WHICH THE STRONG RESCUE THE HALT AND THE
LAME. 

IN NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12
(1932), THIS COURT CAUTIONED THAT 

     "(THE FACT THAT THE CARRIERS' LINES ARE PARALLEL AND COMPETING

  CANNOT BE DEEMED TO AFFECT THE VALIDITY OF THE AUTHORITY

  CONFERRED UPON THE COMMISSION.  . . . THE QUESTION WHETHER THE

  ACQUISITION OF CONTROL IN THE CASE OF COMPETING CARRIERS WILL AID

  IN PREVENTING AN INJURIOUS WASTE AND IN SECURING MORE EFFICIENT

  TRANSPORTATION SERVICE IS THUS COMMITTED TO THE JUDGMENT OF THE

ADMINISTRATIVE AGENCY UPON THE FACTS DEVELOPED IN THE PARTICULAR

  CASE."  ID., AT 25-26. 

ALTHOUGH THIS DECISION WAS PRIOR TO THE PASSAGE OF THE TRANSPORTATION
ACT OF 1940, THAT ACT IN NO WAY ALTERED THE BASIC POLICY /14/
UNDERLYING THE 1920 ENACTMENT.  WE RECOGNIZED IN ST. JOE PAPER CO. V.
ATLANTIC COAST LINE R. CO., 347 U.S. 298, 319 (1954), THAT CONGRESS
ADOPTED THE RECOMMENDATIONS OF THE COMMITTEE OF SIX WHEN IT PASSED THE
1940 TRANSPORTATION ACT AND RELIEVED THE COMMISSION OF ITS DUTY TO
PROMULGATE A NATIONAL RAILROAD CONSOLIDATION PLAN.  THAT COMMITTEE'S
REPORT RECOGNIZED ECONOMIES AND EFFICIENCIES OF OPERATION AS WELL AS
THE ELIMINATION OF CIRCUITOUS ROUTING TO BE BENEFITS THAT COULD FLOW TO
THE PUBLIC THROUGH CONSOLIDATIONS.  /15/  AS RECENTLY AS COUNTY OF
MARIN V. UNITED STATES, 356 U.S. 412 (1958), THIS COURT OBSERVED: 

     "THE CONGRESSIONAL PURPOSE IN THE SWEEPING REVISION OF SEC. 5

  OF THE INTERSTATE COMMERCE ACT IN 1940 . . . WAS TO FACILITATE

  MERGER AND CONSOLIDATION IN THE NATIONAL TRANSPORTATION SYSTEM. 

IN THE TRANSPORTATION ACT OF 1920 THE CONGRESS HAD DIRECTED THE

  COMMISSION ITSELF TO TAKE THE INITIATIVE IN DEVELOPING A PLAN

  'FOR THE CONSOLIDATION OF THE RAILWAY PROPERTIES OF THE

  CONTIENTAL UNITED STATES INTO A LIMITED NUMBER OF SYSTEMS,' 41

  STAT. 481, BUT AFTER 20 YEARS OF TRIAL THE APPROACH APPEARED

  INADEQUATE.  THE TRANSPORTATION ACT OF 1940 EXTENDED SEC. 5 TO

  MOTOR AND WATER CARRIERS, AND RELIEVED THE COMMISSION OF ITS

  RESPONSIBILITY TO INITIATE THE UNIFICATIONS.  'INSTEAD, IT

  AUTHORIZED APPROVAL BY THE COMMISSION OF CARRIER-INITIATED,

  VOLUNTARY PLANS OF MERGER ON CONSOLIDATION IF, SUBJECT TO SUCH

  TERMS, CONDITIONS AND MODIFICATIONS AS THE COMMISSION MIGHT

  PRESCRIBE, THE PROPOSED TRANSACTIONS MET WITH CERTAIN TESTS OF

PUBLIC INTEREST, JUSTICE AND REASONABLENESS . . . . '

SCHWABACHER V. UNITED STATES, 334 U.S. 182, 193 (1948) . . . IN

  SHORT, THE RESULT OF THE ACT WAS A CHANGE IN THE MEANS, WHILE THE

  END REMAINED THE SAME.  THE VERY LANGUAGE OF THE AMENDED

  'UNIFICATION SECTION' EXPRESSES CLEARLY THE DESIRE OF THE

  CONGRESS THAT THE INDUSTRY PROCEED TOWARD AN INTERGRATED NATIONAL

  TRANSPORTATION SYSTEM THROUGH SUBSTANTIAL CORPORATE

  SIMPLIFICATION."  ID., AT 416-418.  (FOOTNOTES OMITTED.) 

WE TURN NOW TO CONSIDER THE APPROPRIATE WEIGHT TO BE ACCORDED BY THE
COMMISSION TO ANTITRUST POLICY IN PROCEEDINGS FOR APPROVAL OF A
MERGER.  THE ROLE OF ANTITRUST POLICY UNDER SEC. 5 WAS DISCUSSED
COMPREHENSIVELY AND DISPOSITIVELY IN MCLEAN TRUCKING CO. V. UNITED
STATES, 321 U.S. 67 (1944), A CASE DEALING WITH A MERGER OF SEVERAL
LARGE TRUCKING COMPANIES.  SINCE THIS COURT HAS HOWHERE ELSE DEALT SO
DEFINITIVELY WITH THIS ISSUE, THE ANALYSIS BY MR. JUSTICE RUTLEDGE IN
THE OPINION FOR THE COURT MERITS EXTENDED QUOTATION: 

     "THE HISTORY OF THE DEVELOPMENT OF THE SPECIAL NATIONAL

  TRANSPORTATION POLICY SUGGESTS, QUITE APART FROM THE EXPLICIT

 PROVISION OF SEC. 5(11), THAT THE POLICIES OF THE ANTI-TRUST LAWS

  DETERMINE 'THE PUBLIC INTEREST' IN RAILROAD REGULATION ONLY IN A

  QUALIFIED WAY.  AND THE ALTERED EMPHASIS IN RAILROAD LEGISLATION

  ON ACHIEVING AN ADEQUATE, EFFICIENT, AND ECONOMICAL SYSTEM OF

  TRANSPORTATION THROUGH CLOSE SUPERVISION OF BUSINESS OPERATIONS

  AND PRACTICES RATHER THAN THROUGH HEAVY RELIANCE ON THE

  ENFORCEMENT OF FREE COMPETITION IN VARIOUS PHASES OF THE

  BUSINESS, CF. NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES,

  287 U.S. 12, HAS ITS COUNTERPART IN MOTOR CARRIER POLICY.  . . . 

      "(THERE CAN BE LITTLE DOUBT THAT THE COMMISSION IS NOT TO

  MEASURE PROPOSALS FOR ALL-RAIL OR ALL-MOTOR CONSOLIDATIONS BY THE

  STANDARDS OF THE ANTI-TRUST LAWS.  CONGRESS AUTHORIZED SUCH

  CONSOLIDATIONS BECAUSE IT RECOGNIZED THAT IS SOME CIRCUMSTANCES

  THEY WERE APPROPRIATE FOR EFFECTUATION OF THE NATIONAL

  TRANSPORTATION POLICY.  IT WAS INFORMED THAT THIS POLICY WOULD BE

  FURTHERED BY 'ENCOURAGING THE ORGANIZATION OF STRONGER UNITS' IN

  THE MOTOR CARRIER INDUSTRY.  AND IN AUTHORIZING THOSE

  CONSOLIDATIONS IT DID NOT IMPORT THE GENERAL POLICIES OF THE

  ANTI-TRUST LAWS AS A MEASURE OF THEIR PERMISSIBILITY.  IT IN

  TERMS RELIEVED PARTICIPANTS IN APPROPRIATE MERGERS FROM THE

REQUIREMENTS OF THOSE LAWS.  SEC. 5(11).  IN DOING SO, IT

PRESUMABLY TOOK INTO ACCOUNT THE FACT THAT THE BUSINESS AFFECTED

  IS SUBJECT TO STRICT REGULATION AND SUPERVISION, PARTICULARLY

  WITH RESPECT TO RATES CHARGED THE PUBLIC-- AN EFFECTIVE SAFEGUARD

  AGAINST THE EVILS ATTENDING MONOPOLY, AT WHICH THE SHERMAN ACT IS

  DIRECTED.  AGAINST HIS BACKGROUND, NO OTHER INFERENCE IS POSSIBLE

  BUT THAT, AS A FACTOR IN DETERMINING THE PROPRIETY OF

  MOTOR-CARRIER CONSOLIDATIONS THE PRESERVATION OF COMPETITION

  AMONG CARRIERS, ALTHOUGH STILL A VALUE, IS SIGNIFICANT CHIEFLY AS

  IT AIDS IN THE ATTAINMENT OF THE OBJECTIVES OF THE NATIONAL

TRANSPORTATION POLICY. 

     "THEREFORE, THE COMMISSION IS NOT BOUND . . . TO ACCEDE TO THE

  POLICIES OF THE ANTI-TRUST LAWS . . . . 

     "CONGRESS HOWEVER NEITHER HAS MADE THE ANTI-TRUST LAWS WHOLLY

  INAPPLICABLE TO THE TRANSPORTATION INDUSTRY NOR HAS AUTHORIZED

  THE COMMISSION IN PASSING ON A PROPOSED MERGER TO IGNORE THEIR

  POLICY.  . . . HENCE, THE FACT THAT THE CARRIERS PARTICIPATING IN

  A PROPERLY AUTHORIZED CONSOLIDATION MAY OBTAIN IMMUNITY FROM

PROSECUTION UNDER THE ANTI-TRUST LAWS IN NO SENSE RELIEVES THE

  COMMISSION OF ITS DUTY, AS AN ADMINISTRATIVE MATTER, TO CONSIDER

  THE EFFECT OF THE MERGER ON COMPETITORS AND ON THE GENERAL

  COMPETITIVE SITUATION IN THE INDUSTRY IN THE LIGHT OF THE

  OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY. 

     "IN SHORT, THE COMMISSION MUST ESTIMATE THE SCOPE AND APPRAISE

  THE EFFECTS OF THE CURTAILMENT OF COMPETITION WHICH WILL RESULT

  FROM THE PROPOSED CONSOLIDATION AND CONSIDER THEM ALONG WITH THE

  ADVANTAGES OF IMPROVED SERVICE, SAFER OPERATION, LOWER COSTS,

  ETC., TO DETERMINE WHETHER THE CONSOLIDATION WILL ASSIST IN

  EFFECTUATING THE OVER-ALL TRANSPORTATION POLICY.  RESOLVING THESE

CONSIDERATIONS IN A COMPLEX TASK WHICH REQUIRES EXTENSIVE

 FACILITIES, EXPERT JUDGMENT AND CONSIDERABLE KNOWLEDGE OF THE

  TRANSPORTATION INDUSTRY.  CONGRESS LEFT THAT TASK TO THE

  COMMISSION . . . . 'THE WISDOM AND EXPERIENCE OF THAT

  COMMISSION,' NOT OF THE COURTS, MUST DETERMINE WHETHER THE

  PROPOSED CONSOLIDATION IS 'CONSISTENT WITH THE PUBLIC INTEREST.' 

  (CITATIONS OMITTED.)  IF THE COMMISSION DID NOT EXCEED THE

  STATUTORY LIMITS WITHIN WHICH CONGRESS CONFINED ITS DISCRETION

  AND ITS FINDINGS ARE ADEQUATE AND SUPPORTED BY EVIDENCE, IT IS

  NOT OUR FUNCTION TO UPSET ITS ORDER."  ID., AT 83-88.  (FOOTNOTES

  OMITTED.) 

ACCORD, MINNEAPOLIS & ST. L.R. CO. V. UNITED STATES, 361 U.S. 173, 186
188; SEABOARD AIR LINES R. CO. V. UNITED STATES, 382 U.S. 154, 156-157
(1965); SEE FLORIDA EAST COAST R. CO. V. UNITED STATES, 259 F.SUPP. 
993 (D.C.M.D. FLA. 1966), AFF'D PER CURIAM, 386 U.S. 544 (1967). 

THE DEPARTMENT URGES THAT THE COMMISSION FAILED TO GIVE SUFFICIENT
WEIGHT TO THE DIMINUTION OF COMPETITION BETWEEN THE NORTHERN LINES-- IN
SHORT, THAT IT FAILED TO STRIKE THE CORRECT BALANCE BETWEEN ANTITRUST
OBJECTIVES AND THE OVERALL TRANSPORTATION NEEDS THAT CONCERN CONGRESS. 
THIS CONTENTION TENDS TO ISOLATE INDIVIDUAL FACTORS THAT ARE TO ENTER
INTO THE COMMISSION'S DECISION AND VIEW THEM AS THE CONTROLLING
CONSIDERATIONS.  "COMPETITION IS MERELY ONE CONSIDERATION HERE,"  PENN
CENTRAL MERGER AND N & W INCLUSION CASES, 389 U.S. 486, 500 (1968). 
AND, WE MIGHT ADD, IT IS A CONSIDERATION THAT IS IMPLIED AND IS IN
ADDITION TO THE FOUR SPECIFICALLY MENTIONED IN SEC. 5(2)(C) OF THE
STATUTE.  IN OUR VIEW THE COMMISSION, IN BOTH REPORTS, EXHIBITED A
CONCERN AND SENSITIVITY TO THE DIFFICULT TASK OF ACCOMMODATING THE
REGULATORY POLICY BASED ON COMPETITION WITH THE LONG-RANGE POLICY OF
ACHIEVING CARRIER CONSOLIDATIONS.  INDEED, THIS LED THE COMMISSION TO
DISAPPROVE THE MERGER BY A MARGIN OF ONE VOTE IN 1966 AFTER FIVE YEARS
OF STUDY BECAUSE OF SPECIFIED INFIRMITIES IN THE PLAN.  THE COMMISSION
REACHED A DIFFERENT CONCLUSION BY A DECISIVE VOTE IN 1967 ON A
SUPPLEMENTAL RECORD WHICH REFLECTED SUBSTANTIAL CHANGES IN THE MERGER
PLAN.  OUR REVIEW, LIKE THAT OF THE DISTRICT COURT, REVEALS SUBSTANTIAL
RECORD EVIDENCE TO SUPPORT THE COMMISSION'S DETERMINATION THAT THE
CONDITIONS AGREED TO BY THE APPLICANTS, THE ATTRITION AGREEMENTS WITH
THE EMPLOYEES, THE ENHANCED SAVINGS FOUND IN THE SECOND REPORT, AND THE
SERVICE IMPROVEMENTS TO SHIPPERS AND THE PUBLIC FOUND IN BOTH THE FIRST
AND SECOND REPORT OUTWEIGHED THE LOSS OF COMPETITION BETWEEN THE
NORTHERN LINES.  STRIKING THE BALANCE IS FOR THE COMMISSION AND WE
CANNOT SAY THAT IT DID SO IMPROPERLY. 

THE BENEFITS TO THE PUBLIC FROM THIS MERGER ARE IMPORTANT AND
DESERVE ELABORATION.  THE COMMISSION FOUND THAT SUBSTANTIAL SERVICE
BENEFITS WOULD FLOW FROM THE MERGER.  SHIPPERS WILL BENEFIT FROM
IMPROVED CAR SUPPLY, WIDER ROUTING, BETTER LOADING AND UNLOADING
PRIVILEGES, AND IMPROVED TRACING AND CLAIMS SERVICE.  NEW COMPANY WILL
BE ABLE TO USE THE SHORTEST AND MOST EFFICIENT ROUTES WHILE ELIMINATING
YEAR INTERCHANGE DELAYS, THUS PROVIDING SHIPPERS WITH FASTER SERVICE. 
THE COMMISSION FOUND THAT THE ECONOMIES NEW COMPANY WILL REALIZE AS A
RESULT OF CONSOLIDATING YARDS, REPAIR FACILITIES, AND MANAGEMENT,
ELIMINATING DUPLICATE TRAIN SERVICES AND POOLING OF CARS AND TRAINS
WILL RESULT IN LOWER RATES TO SHIPPERS AND RECEIVERS.  IN ADDITION, THE
OPENING OF STRATEGIC GATEWAYS TO THE MILWAUKEE WILL REMOVE ARTIFICAL
BARRIERS TO THE DEVELOPMENT OF NEW MARKETS, SOURCES OF SUPPLY, AND
SERVICES. 

THE MILWAUKEE OBJECTIONS PRIOR TO THE FIRST REPORT WERE BASED ON THE
ADVERSE IMPACT OF THE MERGER ON ITS COMPETITIVE POSITION AND, IN TURN,
ON SHIPPERS AND THE PUBLIC.  FOLLOWING THE FIRST REPORT THE NORTHERN
LINES ACCEPTED CONDITIONS URGED BY THE MILWAUKEE.  UNDER THE NEW
CONDITIONS OF POSTURE OF THE MILWAUKEE, LYING LARGELY BETWEEN THE TWO
NORTHERNS AND HANDICAPPED BY LIMITATIONS AT BOTH EASTERN AND WESTERN
TERMINALS, WILL BE GREATLY IMPROVED.  ABSENT THE PROTECTIVE CONDITIONS
IT WOULD CONTINUE TO BE VIRTUALLY STRANGLED BY THE UNIFIED SYSTEM; WITH
THEM THE MILWAUKEE GIVES PROSPECT OF AFFORDING SUBSTANTIAL COMPETITION
TO THE MERGED LINES AND WILL BE PLACED IN THE POSITION THAT AT ITS
INCEPTION IT HOPED TO ACHIEVE.  ITS PAST FAILURE TO BECOME A MEANINGFUL
COMPETITOR CAME IN LARGE PART BECAUSE ITS LINES DID NOT REACH INTO
PORTLAND, OREGON, OR INTO THE SOUTHWEST TERMINAL OF THE NORTHERN LINES
IN CALIFORNIA.  IN A STRICTLY COMPETITIVE SITUATION IT IS
UNDERSTANDABLE THAT NEITHER OF THE NORTHERN LINES WOULD INTERCHANGE
TRAFFIC WITH THE MILWAUKEE EXCEPT ON ITS OWN TERMS AND THIS DESTINED
THAT THE MILWAUKEE WOULD FAIL TO BECOME A TRUE TRANSCONTINENTAL LINE
EVEN THOUGH ITS WESTERN TERMINUS LAY WITHIN A FEW MILES OF PORTLAND
WITH THE LATTER'S ACCESS TO THE SEA. 

THE MILWAUKEE NORTH-SOUTH TRAFFIC ON THE WEST COAST WAS LIMITED TO
THE SHORT RUN FROM SEATTLE TO LONGVIEW, BARELY HALF THE DISTANCE FROM
THE CANADIAN BORDER TO WASHINGTON'S SOUTHERN BORDER.  MOREOVER,
WESTBOUND TRAFFIC DESTINED FOR POINTS ON ONE OF THE NORTHERN LINES WAS
TAKEN OVER BY ONE OF THEM AT ST. PAUL OR MINNEAPOLIS NOTWITHSTANDING
MILWAUKEE'S LINE FROM THERE DEEP INTO WASHINGTON.  IN THE PROCEEDINGS
PRIOR TO 1966 MANY OBJECTING SHIPPERS JOINED THE MILWAUKEE IN POINTING
OUT THAT RATES AND LIMITATIONS ON MILWAUKEE'S SERVICE PRECLUDED FULL
USE OF THE MILWAUKEE TO THE DISADVANTAGE OF BOTH SHIPPERS AND THE
CARRIER. 

THE CONDITIONS IMPOSED BY THE COMMISSION'S SECOND REPORT WILL ALTER
THAT SITUATION AND SUBSTANTIALLY ENLARGE THE MILWAUKEE'S COMPETITIVE
POTENTIAL BETWEEN ST. PAUL AND MINNEAPOLIS AND THE WEST COAST DUE TO
ENLARGEMENT OF ITS LONG-HAUL CAPABILITY.  SHIPPERS WILL BE AFFORDED
MORE FLEXIBLE SERVICE.  ANOTHER CONDITION ATTACHED TO THE COMMISSION'S
APPROVAL WILL PERMIT THE MILWAUKEE TO RUN LINES FROM ITS PRESENT
WESTERN TERMINUS INTO PORTLAND, GIVING IT A LINK WITH THE SOUTHERN
PACIFIC.  ALL THIS WILL ENABLE THE MILWAUKEE TO COMPETE WITH THE
NORTHERN LINES FOR EAST-WEST TRAFFIC AND SOME NORTH-SOUTH TRAFFIC AS
WELL AS LINKAGE WITH CANADIAN CARRIERS TO THE NORTH, WHICH WAS
PREVIOUSLY THE EXCLUSIVE DOMAIN OF ONE OR BOTH OF THE NORTHERNS.  OTHER
CONDITIONS OF LESSER CONSEQUENCE WILL BUTTRESS THE NEWLY DESIGNED
COMPETITIVE POSTURE OF THE MILWAUKEE. 

THE CONTENTION THAT THE COMMISSION FAILED TO PROJECT AN ANALYSIS OF
THE RELATIVE POSITION OF THE MILWAUKEE VIS-A-VIS THE MERGED NORTHERNS
DISCOUNTS THE DIFFICULTY OF PRECISE FORECASTS AND TENDS TO OVERSTATE
THE NEED FOR SUCH PROJECTIONS.  THE COMMISSION CAN DEAL ONLY IN THE
PROBABILITIES THAT WILL ARISE FROM THE MILWAUKEE'S IMPROVED POSTURE AS
A GENUINE COMPETITOR FOR TRAFFIC OVER A WIDE AREA, SOMETHING IT HAD
NEVER BEEN ABLE TO ACHIEVE.  AFTER THE MERGER IT WILL AFFORD SHIPPERS A
CHOICE OF ROUTES AND SERVICE NEGATING THE IDEA THAT ALL RAIL
COMPETITION WILL DISAPPEAR IN THE PACIFIC NORTHWEST. 

(B) NO. 38, THE NORTHERN PACIFIC STOCKHOLDERS' PROTECTIVE COMMITTEE.
- THE NORTHERN PACIFIC STOCKHOLDERS' PROTECTIVE COMMITTEE /16/  HAS
APPEALED THE DISTRICT COURT'S AFFIRMANCE OF THE COMMISSION'S APPROVAL
OF THE PROPOSED MERGER'S STOCK EXCHANGE PROVISIONS.  TO PUT EACH OF THE
COMMITTEE'S CONTENTIONS IN PERSPECTIVE REQUIRES THAT WE DESCRIBE THE
SOURCE OF THE COMMITTEE'S CONCERN AND HOW THE APPLICANTS DEALT WITH IT
IN REACHING THE PRESENT MERGER TERMS. 

THE COMMITTEE'S CONTINUING OPPOSITION TO THE MERGER RELATES TO
NORTHERN PACIFIC'S LAND HOLDINGS.  THE NORTHERN PACIFIC RAILWAY COMPANY
HOLDS MORE THAN TWO MILLION ACRES IN FEE AND HAS MINERAL RIGHTS IN
ANOTHER SIX MILLION ACRES.  THESE LANDS ARE RICH IN NATURAL RESOURCES,
INCLUDING COAL, OIL, AND TIMBER, AND ARE IMPORTANT SOURCES OF INCOME. 
THE NEGOTIATIONS BETWEEN THE PARTIES CENTERED TO A LARGE EXTENT ON
THESE LANDS.  NORTHERN PACIFIC'S FINANCIAL ADVISER HAD SUGGESTED THAT
ALTHOUGH GREAT NORTHERN HAD A BETTER HISTORY OF EARNING POWER AND ITS
STOCK HAD GENERALLY SOLD AT A LEVEL ABOVE THAT OF NORTHERN PACIFIC'S,
THE LARGE LAND HOLDINGS OF THE NORTHERN PACIFIC WITH THEIR VAST
RESOURCES WERE OF SUFFICIENT WORTH TO JUSTIFY A SHARE-FOR-SHARE
EXCHANGE RATIO BETWEEN THE GREAT NORTHERN AND THE NORTHERN PACIFIC. 
THE GREAT NORTHERN, HOWEVER, INSISTED ON A 60-40 STOCK EXCHANGE RATIO
BECAUSE OF ITS TRADITIONAL RAIL STRENGTH.  AFTER FURTHER NEGOTIATIONS
THE ROADS REALIZED THAT THE LANDS WERE A STUMBLING BLOCK TO THE MERGER
AND CONSIDERED SEVERAL MODES OF SEGREGATING THEM FROM NORTHERN
PACIFIC'S RAIL PROPERTIES.  ONE WAS TO CREATE TWO CLASSES OF NEW
COMPANY STOCK, ONE BEING ISSUED TO NORTHERN PACIFIC SHAREHOLDERS AND
REPRESENTING THE NATURAL RESOURCE PROPERTIES, AND ANOTHER BEING ISSUED
TO BOTH GREAT NORTHERN AND NORTHERN PACIFIC SHAREHOLDERS AND
REPRESENTING NORTHERN PACIFIC'S RAIL PROPERTIES.  THE SECOND SOLUTION
CONSIDERED WAS SPINNING OFF THE NATURAL RESOURCE LANDS INTO ANOTHER
CORPORATION AND USING THE PROCEEDS FROM AN ISSUANCE OF ITS STOCK AS A
NORTHERN PACIFIC CONTRIBUTION TO THE MERGER.  NEITHER OF THESE
SOLUTIONS WAS ACCEPTABLE TO THE NEGOTIATORS, THE FORMER BECAUSE OF THE
PROBLEMS INHERENT IN ADMINISTERING A CORPORATION FOR TWO CLASSES OF
STOCKHOLDERS WITH DIVERGENT INTERESTS, AND THE LATTER BECAUSE OF
PETENTIAL LITIGATION WITH BONDHOLDERS AND ADVERSE TAX CONSEQUENCES TO
NORTHERN PACIFIC.  THE NEGOTIATORS CONCLUDED THAT THE MERGER PLAN MUST
INCLUDE THE LAND HOLDINGS OF NORTHERN PACIFIC. 

THEREAFTER BOTH ROADS MADE CONCESSIONS, THE GREAT NORTHERN
ABANDONING ITS CLAIM FOR A PERMANENTLY LARGER SHARE FOR ITS
STOCKHOLDERS AND THE NORTHERN PACIFIC ABANDONING ITS CLAIM FOR
IMMEDIATE EQUALITY.  THE RESULT WAS AN EXCHANGE RATIO GIVING IMMEDIATE
RECOGNITION TO GREAT NORTHERN'S GREATER EARNING POWER AND HISTORICALLY
HIGHER MARKET PRICE WHILE GIVING NORTHERN PACIFIC'S SHAREHOLDERS EQUAL
PARTICIPATION IN THE EARNINGS OF THE ENTERPRISE ON A LONG-TERM BASIS. 
THE TERMS OF THE MERGER, AS WORKED OUT BY THE NEGOTIATORS OVER A FIVE
YEAR PERIOD, WERE APPROVED BY BOTH ROADS' FINANCIAL ADVISORS, THEIR
BOARDS OF DIRECTORS AND THEIR STOCKHOLDERS.  /17/  SHORTLY THEREAFTER
THE NORTHERN PACIFIC STOCKHOLDERS' PROTECTIVE COMMITTEE WAS FORMED. 

WHEN THE MERGER PROPOSAL WAS SUBMITTED TO THE COMMISSION FOR
APPROVAL THE STOCKHOLDERS' COMMITTEE OPPOSED THE EXCHANGE RATIO
PRESSING ITS CLAIM THAT THE NATURAL RESOURCE LANDS WERE UNDERVALUED AND
THAT THE COMMISSION EITHER SHOULD ADJUST THE EXCHANGE RATIO IN
ACCORDANCE WITH THE COMMITTEE'S ESTIMATES OF THE PROPERTY'S WORTH OR,
PREFERABLY, SHOULD ORDER THE LANDS SEGREGATED AND PLACED IN A SEPARATE
CORPORATION, THE STOCK OF WHICH WOULD BE AVAILABLE TO NORTHERN PACIFIC
SHAREHOLDERS.  THE HEARING EXAMINER'S REPORT REVIEWED THE EXTENSIVE
NEGOTIATIONS BETWEEN THE PARTIES AND THE MODES BY WHICH THEY REACHED A
VALUATION OF THE CONTRIBUTION EACH ROAD'S SHAREHOLDERS WERE MAKING TO
NEW COMPANY, CONCLUDING THAT THERE HAD BEEN GOOD-FAITH ARM'S-LENGTH
BARGAINING AND THAT THE RESULT OF THIS BARGAINING FAIRLY REFLECTED EACH
GROUP OF STOCKHOLDERS' CONTRIBUTION TO NEW COMPANY.  THE EXAMINER FOUND
THE COMMITTEE'S CONTENTION ON VALUE TO BE UNSUPPORTED BY RECORD
EVIDENCE AND ITS SPINOFF PROPOSAL TO BE UNFAIR TO NORTHERN PACIFIC
SHAREHOLDERS.  HE RECOMMENDED APPROVAL OF THE TERMS OF THE EXCHANGE. 

THE COMMISSION'S FIRST REPORT, WHICH DISAPPROVED THE MERGER, DID NOT
REACH THE ISSUE OF THE EXCHANGE RATIO.  WHEN IN 1967 THE COMMISSION
RECONSIDERED ITS EARLIER DECISION, IT REFUSED THE COMMITTEE'S REQUEST
THAT IT REOPEN THE RECORD FOR THE TAKING OF NEW EVIDENCE ON THE
EXCHANGE RATIO, BUT DID HEAR ORAL ARGUMENT ON THE MATTER.  THE
COMMITTEE AGAIN PRESSED ITS CONTENTIONS.  THE COMMISSION'S SECOND
REPORT REJECTED THE COMMITTEE'S ARGUMENTS UPON BASICALLY THE SAME
GROUNDS GIVEN BY THE HEARING EXAMINER IN HIS 1964 REPORT. 

THE COMMITTEE CONTINUED ITS ATTACK ON THE STOCK EXCHANGE RATIO IN
THE DISTRICT COURT AND URGED THAT THE COMMISSION HAD ABUSED ITS
DISCRETION IN REFUSING TO REOPEN THE RECORD TO RECEIVE UPDATED EVIDENCE
ON THE EXCHANGE RATIO.  THE DISTRICT COURT RULED THAT THE COMMISSION'S
FINDING THAT THE TERMS WERE JUST AND REASONABLE WAS SUPPORTED BY
SUBSTANTIAL EVIDENCE.  IT ALSO HELD THAT THE EVIDENCE THE COMMITTEE
PROFFERED WAS NOT OF SUFFICIENT IMPORTANCE TO HAVE AFFECTED THE
ULTIMATE FAIRNESS OF THE COMMISSION'S FINDING.  THE DISCRETION
EXERCISED BY THE COMMISSION IN REFUSING TO REOPEN THE RECORD WAS,
THEREFORE, FOUND FREE FROM ABUSE. 

THE COMMITTEE NOW CONTENDS THAT THE RECORD LACKS SUBSTANTIAL
EVIDENCE TO SUPPORT THE COMMISSION'S DETERMINATION THAT THE EXCHANGE
RATIOS ARE JUST AND REASONABLE; THAT THE COMMISSION FAILED TO CONSIDER
THE WHOLE RECORD BEFORE IT; THAT THE COMMISSION ERRED, ABUSED ITS
DISCRETION, OR DENIED APPELLANT DUE PROCESS OF LAW IN NOT PERMITTING
THE RECORD TO BE UPDATED RESPECTING THE 1967 WORTH OF THE CONTRIBUTIONS
BEING MADE BY EACH GROUP OF SHAREHOLDERS, ESPECIALLY REPSECTING
NORTHERN PACIFIC'S NATURAL RESOURCE PROPERTIES; THAT THE RECORD DOES
NOT CONTAIN SUBSTANTIAL EVIDENCE TO SUPPORT THE DETERMINATION OF THE
COMMISSION THAT THE PROPOSED SEGREGATION OF THE NATURAL RESOURCE LANDS
IS A PROPOSAL LACKING MERIT AND IS UNFAIR TO NORTHERN PACIFIC
SHAREHOLDERS; AND THAT THE DISTRICT COURT ERRED IN UPHOLDING THE
COMMISSION'S ACTION.  OUR REVIEW LEADS US TO REJECT THESE CONTENTIONS. 

UNDER SEC. 5(2) OF THE INTERSTATE COMMERCE ACT, THE COMMISSION IS TO
APPROVE ONLY SUCH MERGER TERMS AS IT FINDS TO BE JUST AND REASONABLE. 
THE COMMISSION, AS HAD THE NEGOTIATORS AND THE HEARING EXAMINER, FULLY
CONSIDERED THE PROPOSED SEGREGATION OF THE NATURAL RESOURCE PROPERTIES
AND CONCLUDED THAT IT WAS NEITHER FEASIBLE NOR FAIR TO NORTHERN PACIFIC
STOCKHOLDERS.  THAT DETERMINATION IS SUPPORTED BY SUBSTANTIAL RECORD
EVIDENCE.  IN PASSING WE NOTE THAT ALTHOUGH THE COMMISSION IN
FULFILLING ITS STATUTORY RESPONSIBILITIES IS TO CAREFULLY REVIEW ALL OF
THE TERMS OF A MERGER PROPOSAL AND DETERMINE WHETHER THEY ARE JUST AND
REASONABLE, IT IS NOT FOR THE AGENCY, MUCH LESS THE COURTS, TO DICTATE
THE TERMS OF THE MERGER AGREEMENT ONCE THIS STANDARD HAS BEEN MET.  IT
CAN HARDLY BE ARGUED THAT THE BARGAINING PARTIES WERE NOT CAPABLE OF
PROTECTING THEIR OWN INTERESTS. 

THE COMMISSION'S UNWILLINGNESS TO REOPEN THE RECORD IN 1967 FOR THE
TAKING OF NEW EVIDENCE ON THE EXCHANGE RATIO WAS NOT AN ABUSE OF
DISCRETION NOR DID IT DENY THE APPELLANT DUE PROCESS OF LAW.  WHAT THIS
COURT SAID IN INTERSTATE COMMERCE COMMISSION V. JERSEY CITY, 322 U.S.
503 (1944), IS APPLICABLE HERE: 

"ADMINISTRATIVE CONSIDERATION OF EVIDENCE-- PARTICULARLY WHERE THE
EVIDENCE IS TAKEN BY AN EXAMINER, HIS REPORT SUBMITTED TO THE PARTIES,
AND A HEARING HELD ON THEIR EXCEPTIONS TO IT-- ALWAYS CREATES A GAP
BETWEEN THE TIME THE RECORD IS CLOSED AND THE TIME THE ADMINISTRATIVE
DECISION IS PROMULGATED.  THIS IS ESPECIALLY TRUE IF THE ISSUES ARE
DIFFICULT, THE EVIDENCE INTRICATE, AND THE CONSIDERATION OF THE CASE
DELIBERATE AND CAREFUL.  IF UPON THE COMING DOWN OF THE ORDER LITIGANTS
MIGHT DEMAND REHEARING, AS A MATTER OF LAW BECAUSE SOME NEW
CIRCUMSTANCE HAS ARISEN, SOME NEW TREND HAS BEEN OBSERVED, OR SOME NEW
FACT DISCOVERED, THERE WOULD BE LITTLE HOPE THAT THE ADMINISTRATIVE
PROCESS COULD EVER BE CONSUMMATED IN AN ORDER THAT WOULD NOT BE SUBJECT
TO REOPENING.  IT HAS BEEN ALMOST A RULE OF NECESSITY THAT REHEARINGS
WERE NOT MATTERS OF RIGHT, BUT WERE PLEAS TO DISCRETION.  AND LIKEWISE
IT HAS BEEN CONSIDERED THAT THE DISCRETION TO BE INVOKED WAS THAT OF
THE BODY MAKING THE ORDER, AND NOT THAT OF A REVIEWING BODY."  ID., AT
514-515.  MOREOVER, AS THIS COURT NOTED IN UNITED STATES V. PIERCE AUTO
FREIGHT LINES, 327 U.S. 515 (1946), "IT HAS BEEN HELD CONSISTENTLY THAT
REHEARINGS BEFORE ADMINISTRATIVE BODIES ARE ADDRESSED TO THEIR OWN
DISCRETION.  . . . ONLY A SHOWING OF THE CLEAREST ABUSE OF DISCRETION
COULD SUSTAIN AN EXCEPTION TO THAT RULE."  ID., AT 535. 

WE FIND NOTHING IN THE COMMITTEE'S ARGUMENTS TO PERSUADE US THAT SUCH
AN ABUSE OCCURRED WHEN THE COMMISSION REFUSED TO TAKE FURTHER EVIDENCE
ON THE QUESTION OF EACH GROUP OF SHAREHOLDERS' CONTRIBUTION TO THE
MERGER.  SCHWABACHER V. UNITED STATES, 334 U.S. 182 (1948), RELIEF UPON
BY THE COMMITTEE, IS NOT TO THE CONTRARY.  THAT DECISION REQUIRES THAT
THE VALUE OF A STOCKHOLDER'S CONTRIBUTION TO A MERGER BE DETERMINED IN
ACCORD WITH THE "CURRENT WORTH" OF HIS EQUITY.  THAT DOES NOT MEAN
THERE MUST BE A REPEATED UPDATING OF THE EVIDENCE BEFORE THE AGENCY; IN
A COMPLEX MERGER SUCH AS THIS THAT WOULD LEAD TO INTERMINABLE DELAY.  A
DETERMINATION THAT THE TERMS OF A MERGER PROPOSAL FAIRLY REFLECT THE
CURRENT WORTH OF EACH SHAREHOLDER'S CONTRIBUTION MEETS THE STANDARDS OF
SCHWABACHER IF THE AGENCY HAD BEFORE IT EVIDENCE AS TO THE WORTH OF THE
SHAREHOLDERS' CONTRIBUTIONS AT THE TIME OF THE SUBMISSION OF THE
PROPOSAL, AND THERE IS NO SHOWING THAT SUBSEQUENT EVENTS HAVE
MATERIALLY ALTERED THE WORTH OF THE VARIOUS SHAREHOLDERS' CONTRIBUTIONS
TO THE MERGER.  THE EVIDENCE THE APPELLANT COMMITTEE PRESENTS TO THIS
COURT, PURPORTING TO SHOW THAT NORTHERN PACIFIC'S STOCK IS PRESENTLY
WORTH CONSIDERABLY MORE, VIS-A-VIS GREAT NORTHERN'S, THAN WAS THE CASE
AT THE TIME OF THE INITIAL HEARINGS, DOES SHOW FLUCTUATIONS IN THE
WORTH OF THE TWO COMPANIES' STOCK.  BUT WE CANNOT SAY THAT THOSE
FLUCTUATIONS, IN THE CONTEXT OF THIS MERGER PROPOSAL, ARE SUFFICIENT TO
SHOW THAT THE WORTH OF THE VARIOUS SHAREHOLDERS' CONTRIBUTIONS TO THE
MERGER HAS BEEN MATERIALLY ALTERED.  WE AGREE WITH THE DISTRICT COURT
THAT THE COMMISSION'S REFUSAL TO REOPEN THE RECORD FOR FURTHER EVIDENCE
WAS NOT AN ABUSE OF DISCRETION. 

(C) NO. 43, CITY OF AUBURN.-- THE CITY OF AUBURN, WASHINGTON,
OPPOSES THE MERGER FOR THE REASONS SET OUT IN THE BRIEF OF THE
DEPARTMENT OF JUSTICE, AND, IN ADDITION, CONTENDS THAT THE COMMISSION
FAILED TO ADEQUATELY ASSESS THE IMPACT OF THE MERGER UPON AFFECTED
COMMUNITIES AND EXPLAIN WHY THE BENEFITS OF THE MERGER CONVINCINGLY
OUTWEIGH ITS ADVERSE EFFECTS ON THESE COMMUNITIES.  AUBURN ALSO OBJECTS
TO THE REFUSAL TO OPEN THE 1967 HEARINGS FOR FURTHER TESTIMONY
CONCERNING THE IMPACT OF THE MERGER UPON AUBURN. 

AUBURN IS A CITY OF 19,000 INHABITANTS IN WESTERN WASHINGTON,
HALFWAY BETWEEN SEATTLE AND TACOMA, WHICH SERVES AS THE WESTERN
TERMINUS FOR THE NORTHERN PACIFIC'S TRANSCONTINENTAL TRAINS.  A
SUBSTANTIAL PART OF THE CITY'S ECONOMY IS DEPENDENT UPON THAT ROAD'S
ACTIVITY THERE.  THE RECORD BEFORE THE COMMISSION INDICATED THAT IF THE
MERGER WERE APPROVED, THE AUBURN YARD WOULD BE CLOSED, AND THAT THE
TOWN OF EVERETT, ON THE OTHER SIDE OF SEATTLE, WOULD BECOME THE WESTERN
TERMINUS FOR ALL OF NEW COMPANY'S TRANSCONTINENTAL TRAINS. 

INSOFAR AS THE CITY CHALLENGES THE COMMISSION'S ACTION ON THE SAME
GROUNDS AS THE DEPARTMENT OF JUSTICE, OUR DISPOSITION OF THE APPEAL IN
NO. 28 APPLIED HERE.  AS FOR THE 1967 HEARINGS, THE CITY FAILED TO
OBJECT TO THE SCOPE OF THE COMMISSION'S REOPENED HEARINGS AND MADE NO
ATTEMPT TO PRESENT EVIDENCE AT THOSE HEARINGS.  NEITHER DID IT
CHALLENGE THE COMMISSION'S FINDINGS CONCERNING THE IMPACT OF THE MERGER
UPON AUBURN.  ONLY WHEN IT CAME BEFORE THE DISTRICT COURT DID IT RAISE
ITS CONTENTIONS.  THIS ALONE MIGHT PRECLUDE ITS ATTACK ON THE MERGER. 
BUT WE NEED NOT DECIDE THAT ISSUE BECAUSE WE FIND THAT THE COMMISSION
DID NOT ABUSE ITS DISCRETION IN REFUSING TO TAKE EVIDENCE IN 1967 AS TO
THE IMPACT OF THE MERGER ON AUBURN. 

IN THE RECORD UPON WHICH THE SECOND REPORT IS BASED THE COMMISSION
HAD EVIDENCE OF THE IMPACT OF THE YARD'S CLOSING ON THE CITY.  THUS,
EVEN ASSUMING THE CLOSING, THE COMMISSION FOUND THAT THE LONG-RUN
EFFECT OF THE MERGER WOULD BE TO BENEFIT COMMUNITIES IN THE NORTHERN
TIER, SUCH AS AUBURN, AND THAT THE BRIEF AND TRANSITORY DISLOCATIONS
THE MERGER WOULD OCCASION WERE NOT SUFFICIENT TO OUTWEIGH THE MERGER'S
BENEFITS.  WE FIND THIS TO BE A JUSTIFIABLE CONCLUSION SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD.  WE CAN HARDLY IMAGINE ANY MERGER
OF SUBSTANTIAL CARRIERS THAT WOULD NOT CAUSE SOME DISLOCATIONS TO SOME
SHIPPERS, SOME COMMUNITIES, AND SOME EMPLOYEES. 

THE PLANS FOR THE AUBURN YEAR NOW SEEM TO BE ALTERED; THE APPLICANTS
STATED BEFORE THE DISTRICT COURT AND AGAIN BEFORE THIS COURT THAT THEY
NOW INTEND TO MAINTAIN THE AUBURN YARD.  AS A RESULT, EMPLOYMENT IN
AUBURN WILL BE LARGELY UNAFFECTED BY THE MERGER.  SINCE WE CONCLUDE
THAT THE COMMISSION PROPERLY DETERMINED THAT AUBURN'S HARDSHIPS AND
THOSE OF COMMUNITIES SIMILARLY SITUATED, AS POSITED ON THE RECORD, DID
NOT WARRANT DISAPPROVAL OF THE MERGER, IT IS DIFFICULT TO IMAGINE ANY
BASIS UPON WHICH WE MIGHT FIND THE COMMISSION TO HAVE ABUSED ITS
DISCRETION IS NOT TAKING FURTHER EVIDENCE ON THE MERGER'S IMPACT ON
AUBURN WHEN THE PRINCIPAL HARM OF WHICH THE CITY EARLIER COMPLAINED HAS
DISAPPEARED. 

(D) NO. 44, LIVINGSTON ANTI-MERGER COMMITTEE.-- CITIZENS OF MONTANA,
LIVING IN AND ABOUT LIVINGSTON, HELENA, AND GLENDIVE, WHO APPEAR HERE
AS THE LIVINGSTON ANTI-MERGER COMMITTEE, ATTACK THE MERGER ON SEVERAL
GROUNDS.  AS A PRELUDE TO DISCUSSING THESE CONTENTIONS, THE HISTORICAL
FACTS UPON WHICH THE COMMITTEE'S ATTACK IS BASED SHOULD BE STATED. 

IN 1864 CONGRESS CREATED THE NORTHERN PACIFIC RAILROAD COMPANY
(RAILROAD) AND GRANTED IT AUTHORITY TO BUILD A RAILROAD FROM LAKE
SUPERIOR TO PUGET SOUND.  TO SUBSIDIZE THIS ENTERPRISE CONGRESS GRANTED
RAILROAD A RIGHT-OF-WAY AND AND ALTERNATE SECTIONS OF LAND ALONG THAT
RIGHT-OF-WAY.  ACCORDING TO THE TERMS OF RAILROAD'S CHARTER IT COULD
NOT ENCUMBER ITS FRANCHISE OR RIGHT-OF-WAY WITHOUT CONGRESSIONAL
APPROVAL, AND WAS NOT AUTHORIZED TO MERGE WITH ANOTHER ROAD, EXCEPT
UNDER LIMITED CONDITIONS NOT RELEVANT HERE.  /18/  IN 1870 CONGRESS
PASSED A RESOLUTION ALLOWING RAILROAD TO ISSUE BONDS SECURED BY ITS
PROPERTY AND SUBJECT TO FORECLOSURE FOR DEFAULT.  SHORTLY THEREAFTER A
MORTGAGE WAS PLEDGED, ONLY TO BE FORECLOSED IN 1875.  AFTER THE
FORECLOSURE PROCEEDINGS THE PROPERTY WAS STRUCK OFF TO A COMMITTEE OF
BONDHOLDERS.  LATER, HOWEVER, THE PROPERTY WAS RETURNED TO RAILROAD
PURSUANT TO A REORGANIZATION PLAN.  ALTHOUGH CONGRESS DID NOT FURTHER
AUTHORIZE MORTGAGING OF THE FRANCHISE OR RIGHT-OF-WAY, RAILROAD AGAIN
ENCUMBERED ITS PROPERTY BY PLEDGING SEVERAL MORTGAGES.  IN 1896, AFTER
THESE MORTGAGES HAD BEEN DEFAULTED UPON AND FORECLOSURE PROCEEDINGS HAD
BEEN COMMENCED, A NEGOTIATED SETTLEMENT WAS MADE WHICH RESULTED IN THE
PROPERTY OF RAILROAD BEING SOLD TO THE NORTHERN PACIFIC RAILWAY COMPANY
(RAILWAY), WHICH HAS OPERATED UNDER RAILROAD'S FRANCHISE AND UPON ITS
RIGHT-OF-WAY EVER SINCE.  RAILWAY PRESENTLY OWNS 97% OF THE STOCK OF
RAILROAD, WHICH IS NO LONGER AN OPERATING COMPANY. 

ON THE BASIS OF THESE FACTS LIVINGSTON CONTENDS THAT THE INTERSTATE
COMMERCE COMMISSION HAD NO AUTHORITY TO APPROVE THE PROPOSED MERGER
BECAUSE RAILWAY DOES NOT OWN THE FRANCHISE AND RIGHT-OF-WAY INVOLVED IN
THIS MERGER, AND RAILROAD IS NOT A PARTY TO THE MERGER.  LIVINGSTON
ARGUES THAT THE 1896 FORECLOSURE WAS A SHAM AND IT ACTUALLY WAS A SALE
OF RAIROAD PROPERTY TO RAILWAY; BECAUSE CONGRESS NEVER AUTHORIZED THAT
SALE, IT IS VOID.  IN ADDITION, LIVINGSTON CONTENDS THAT THE MORTGAGES
THAT LED TO THE 1896 FORECLOSURE WERE NOT AUTHORIZED BY CONGRESS;
THEREFORE, THEY COULD NOT CONSTITUTE THE BASIS FOR A VALID FORECLOSURE
AND LIQUIDATION.  THE CLAIMED CONSEQUENCE IS THAT THE TITLE TO THE
FRANCHISE AND RIGHT-OF-WAY REMAINS IN RAILROAD.  LIVINGSTON ARGUES THAT
EVEN IF IT SHOULD BE HELD THAT RAILWAY DOES OWN THE FRANCHISE AND RIGHT
OF-WAY, UNDER THE 1864 CHARTER OF RAILROAD, TO WHICH RAILWAY SUCCEEDED,
NO MERGER INVOLVING THESE PROPERTIES CAN TAKE PLACE WITHOUT
CONGRESSIONAL APPROVAL, AND SUCH APPROVAL HAS NOT BEEN PROCURED. 
FINALLY, LIVINGSTON URGES THAT THE COMMISSION AND THE DISTRICT COURT
FAILED TO PROPERLY DEAL WITH THESE CONTENTIONS AND MAKE SPECIFIC
FINDINGS AS TO THE COMMISSION'S JURISDICTION. 

THE COMMISSION WAS PRESENTED WITH THESE ARGUMENTS AND FOUND THEM TO
BE WITHOUT MERIT.  THE DISTRICT COURR AFFIRMED THE COMMISSION, RULING
THAT IT HAD NOT ERRED IN REFUSING TO DISAPPROVE THE MERGER BECAUSE OF
APPELLANT'S CLAIMS AND HAD NOT ERRED IN REFUSING TO LITIGATE THEIR
MERITS.  WE AFFIRM THE DISTRICT COURT.  SECTION 5(2)(A) OF THE
INTERSTATE COMMERCE ACT PROVIDES IN PERTINENT PART: 

     "(A) IT SHALL BE LAWFUL, WITH THE APPROVAL AND AUTHORIZATION
OF

  THE COMMISSION, AS PROVIDED IN SUBDIVISION (B) OF THIS

  PARAGRAPH-- 

     "(I) FOR TWO OR MORE CARRIERS TO CONSOLIDATE OR MERGE THEIR

  PROPERTIES OR FRANCHISES, OR ANY PART THEREOF, INTO ONE

  CORPORATION FOR THE OWNERSHIP, MANAGEMENT, AND OPERATION OF THE

  PROPERTIES THERETOFORE IN SEPARATE OWNERSHIP . . . . "  49 U.S.C.

  5(2)(A). 

THE PREMISE OF LIVINGSTON'S POSITION IS THAT UNDER THIS STATUTE BEFORE
THE COMMISSION CAN ASSUME JURISDICTION OVER A MERGER APPLICATION IT
MUST DETERMINE THAT THE APPLICANTS HAVE PROPER LEGAL TITLE TO THE
RIGHTS AND PROPERTY WHICH THEY SEEK TO BRING INTO THE MERGER.  THIS IS
AN ERRONEOUS ASSUMPTION.  THE COMMISSION IS NOT REQUIRED TO DEAL WITH
THE SUBTLETIES OF "GOOD TITLE" BEFORE ASSUMING JURISDICTION OVER A SEC.
5 MATTER.  CF. O. C. WILEY & SONS V. UNITED STATES, 85 F.SUPP.  542,
543-545 (D.C.W.D. VA.), AFF'D PER CURIAM, 338 U.S. 902 (1949); WALKER
V. UNITED STATES, 208 F.SUPP.  388, 396 (D.C.W.D. TEX. 1962);
INTERSTATE INVESTORS, INC. V. UNITED STATES, 287 F.SUPP.  374, 392 N.
32 (D.C.S.D.N.Y. 1968), AFF'D PER CURIAM, 393 U.S. 479 (1969).  AND
BECAUSE A COMMISSION ORDER UNDER SEC. 5(2) "IS PERMISSIVE, NOT
MANDATORY," NEW YORK CENTRAL SECURITIES CORP V. UNITED STATES, 287 U.S.
12, 26-27 (1932), THE APPROVAL OF A MERGER PROPOSAL DOES NOT AMOUNT TO
AN ADJUDICATION ON ANY SUCH QUESTIONS.  THESE ARE MATTERS FOR THE
COURTS, NOT FOR AN AGENCY THAT HAS RESPONSIBILITY IN THE REALM OF
REGULATING TRANSPORTATION SYSTEMS. 

IN THE INSTANT CASE THERE WERE AMPLE GROUNDS FOR THE COMMISSION'S
ASSUMPTION OF JURISDICTION OVER THE APPLICANTS.  ALTHOUGH THE VALIDITY
OF RAILWAY'S CLAIM THAT IT IS RAILROAD'S SUCCESSOR IN INTEREST AND HAS
GOOD TITLE TO ALL OF RAILROAD'S RIGHTS AND PROPERTIES HAS NEVER BEEN
JUDICIALLY DETERMINED, THIS COURT HAS IMPLIEDLY RECOGNIZED IT SEVERAL
TIMES.  IN NORTHERN PACIFIC R. CO. V. BOYD, 228 U.S. 482 (1913), WE
HELD THAT A CREDITOR OF RAILROAD HAD AN ASSERTABLE CLAIM AGAINST THE
EQUITY OF RAILROAD'S SHAREHOLDERS REPRESENTED BY RAILWAY'S ASSETS
BECAUSE THE FORECLOSURE AMOUNTED TO LITTLE MORE THAN A JUDICIALLY
APPROVED REORGANIZATION IN WHICH THE SHAREHOLDERS OF THE OLD COMPANY
BECAME THE SHAREHOLDERS OF THE NEW.  AS AGAINST A BONA FIDE CREDITOR OF
RAILROAD, WE FOUND THE JUDICIAL SALE INEFFECTIVE TO BAR HIS RIGHTS. 
HOWEVER, WE ALSO STATED THAT

"(AS BETWEEN THE PARTIES AND THE PUBLIC GENERALLY, THE SALE WAS
VALID.  . . (THE NORTHERN PACIFIC RAILROAD WAS DIVESTED OF THE LEGAL
TITLE (TO ITS PROPERTIES) . . . . " ID., AT 506.  IN UNITED STATES V.
NORTHERN PACIFIC R. CO., 311 U.S. 317 (1940), WE DESCRIBED SOME OF THE
HISTORY OF THE APPELLEE COMPANY AS FOLLOWS: 

"PURSUANT TO FORECLOSURE PROCEEDINGS THE NORTHERN PACIFIC RAILWAY
COMPANY ACQUIRED TITLE TO THE RAILROAD, THE LAND GRANT, AND ALL OTHER
PROPERTY OF THE ORIGINAL CORPORATION AND HAS SINCE OPERATED THE ROAD
AND OBTAINED PATENTS FOR MILLIONS OF ACRES UNDER THE LAND GRANTS." 
ID., AT 328.  IN ADDITION, ATTORNEY GENERAL HARMON IN 1897 ADVISED THE
SECRETARY OF THE INTERIOR THAT RAILWAY HAD A RIGHT, AS SUCCESSOR IN
INTEREST OF RAILROAD, TO PATENTS ON LAND GRANTS MADE TO RAILROAD.  21
OP.ATTY.GEN.  486.  THE SECRETARY OF THE INTERIOR THEREAFTER TREATED
RAILWAY AS RAILROAD'S LEGAL SUCCESSOR AND PATENTED LARGE AMOUNTS OF
LAND TO RAILWAY.  WHEN IN 1905 THE THEN SECRETARY OF THE INTERIOR ASKED
THEN ATTORNEY GENERAL MOODY, LATER AN ASSOCIATE JUSTICE OF THIS COURT,
ABOUT THE RIGHT OF RAILWAY TO RAILROAD'S LAND GRANTS, MR. MOODY, AFTER
INVESTIGATING THE MATTER, REAFFIRMED HIS PREDECESSOR'S CONCLUSION THAT
RAILWAY WAS RAILROAD'S LEGITIMATE SUCCESSOR IN INTEREST.  25
OP.ATTY.GEN.  401.  IN 1954 A COMMITTEE OF RAILROAD'S MINORITY
SHAREHOLDERS SUED RAILWAY SEEKING TO HAVE THE 1896 FORECLOSURE SET
ASIDE AND ALL TITLES AND FRANCHISES DECLARED TO BE IN RAILROAD AND TO
OBTAIN AN ACCOUNTING FROM RAILWAY FOR ALL PROPERTIES AND PROFITS
RECEIVED FROM 1896 THROUGH 1954.  IN AN EXHAUSTIVE OPINION JUDGE EDWARD
A. TAMM OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA HELD THE ACTION BARRED BY LACHES AND DISMISSED THE COMPLAINT. 
LANDELL V. NORTHERN PACIFIC R. CO., 122 F.SUPP.  253 (D.C.D.C. 1954),
AFF'D, 96 U.S.APP.D.C. 24, 223 F.2D 316, CERT. DENIED, 350 U.S. 844
(1955).  IN THIS CONTEXT WE THINK THE COMMISSION DID NOT ERR IN
ASSUMING JURISDICTION OVER THE APPLICANTS WHILE REFUSING TO ADJUDICATE
THE MERITS OF RAILWAY'S TITLE.  AS THE DISTRICT COURT STATED, "(FOR
PURPOSES OF MERGER PROCEEDINGS IT COULD RELY ON THE EXISTING JUDICIAL
RECORDS . . . SUPPLEMENTED BY THE OPINIONS OF TWO ATTORNEYS GENERAL." 
/19/ 

WE ARE THEN FACED WITH THE CONTENTION OF LIVINGSTON THAT RAILWAY IS
PROHIBITED FROM PARTICIPATING IN THE MERGER AND THAT THE COMMISSION IS
BARRED FROM APPROVING IT BY THE TERMS OF RAILROAD'S CHARTER.  THAT
CHARTER DOES NOT AUTHORIZE RAILROAD TO MERGE WITH THE APPLICANT
COMPANIES AND PROHIBITS THE MORTGAGING OF ITS PROPERTY IN THE ABSENCE
OF CONGRESSIONAL CONSENT.  IF RAILWAY IS RAILROAD'S SUCCESSOR IN
INTEREST, LIVINGSTON CONTENDS, IT IS BOUND BY THE PROVISIONS OF
RAILROAD'S CHARTER, AND THOSE PROVISIONS WOULD BE VIOLATED BY THE
PROPOSED MERGER AND ISSUANCE OF SECURITIES INCIDENT THERETO. 
LIVINGSTON ARGUES THAT BECAUSE THE ACT CHARTERING RAILROAD IS A LAW AS
MUCH AS IT IS A GRANT, SEE OREGON & CALIFORNIA R. CO. V. UNITED STATES,
238 U.S. 393, 427 (1915), IT IS BINDING UPON THE COMMISSION AND MAKES
THE COMMISSION'S APPROVAL OF THE MERGER UNLAWFUL.  LIVINGSTON RELIES
UPON UNION PACIFIC R. CO. V. MASON CITY & FORT DODGE R. CO., 199 U.S.
160 (1905), AS STANDING FOR THE PROPOSITION THAT STATUTORY RESTRICTIONS
ON A PREDECESSOR FEDERAL RAILROAD COMPANY SURVIVE A FORECLOSURE SALE
AND APPLY TO A SUCCESSOR PRIVATE RAILROAD COMPANY OPERATING ON THE
ORIGINAL COMPANY'S RIGHTS AND FRANCHISE. 

WE DO NOT FIND THE MASON CITY DECISION TO BE CONTROLLING, DESPITE
ITS SOMEWHAT SIMILAR LEGAL AND FACTUAL CONTEXT.  IN 1862 CONGRESS
CHARTERED THE UNION PACIFIC RAILROAD COMPANY AND AUTHORIZED IT TO BUILD
A TRANSCONTINENTAL RAILROAD.  IN 1865 RAILROAD, PURSUANT TO
CONGRESSIONAL AUTHORIZATION, PLEDGED A MORTGAGE SECURED BY ITS RIGHT-OF
WAY AND FRANCHISE TO GAIN MONIES NECESSARY FOR CONSTRUCTION.  IN 1871
CONGRESS GRANTED RAILROAD AUTHORITY TO ISSUE BONDS FOR THE CONSTRUCTION
OF A BRIDGE OVER THE MISSOURI RIVER, THAT GRANT BEING CONDITIONED UPON
THE BRIDGE'S BEING OPEN FOR THE USE OF ALL ROADS FOR A REASONABLE
COMPENSATION, TO BE PAID TO THE OWNER OF THE BRIDGE.  THIS CONDITION
WAS ONE GENERALLY INSERTED BY CONGRESS IN STATUTES AUTHORIZING BRIDGE
CONSTRUCTION.  SOMETIME AFTER THE BRIDGE WAS BUILT IN 1865 MORTGAGE WAS
FORECLOSED AND THE UNION PACIFIC RAILROAD COMPANY, A UTAH CORPORATION,
PURCHASED THE ASSETS OF THE FEDERAL CORPORATION.  IT THEREAFTER REFUSED
TO ALLOW ANY BUT ITS OWN TRAINS TO USE THE BRIDGE, CONTENDING THAT AS
PURCHASER UNDER THE FORECLOSURE OF THE 1865 MORTGAGE, IT WAS NOT BOUND
BY THE 1871 STATUTE'S CONDITIONS.  THIS COURT REJECTED THAT CONTENTION
AND CONCLUDED THAT THE CONDITIONS APPLIED TO THE UTAH CORPORATION,
REASONING THAT THE PURPOSE OF CONGRESS IN AUTHORIZING THE CONSTRUCTION
OF THE BRIDGE REQUIRED THAT THE CONDITIONS APPENDED TO THAT
AUTHORIZATION ATTACH TO THE BRIDGE AND BIND ITS OWNER. 

THE INSTANT CASE IS QUITE DIFFERENT.  HERE THE PROVISIONS OF THE
CHARTER OF NORTHERN PACIFIC RAILROAD COMPANY WHICH ARE URGED TO BAR
THIS MERGER WERE DIRECTED ONLY TO THE OPERATIONS OF THE FEDERAL
CORPORATION, NOT TO THE OPERATION OF THE RAILROAD.  THUS, WHEN THE
CORPORATION'S PROPERTY WAS SOLD TO ANOTHER, THE CONDITIONS OF WHICH
LIVINGSTON SPEAKS DID NOT FOLLOW THAT PROPERTY INTO THE HANDS OF THE
SUCCESSOR CORPORATION.  IT THEREFORE FOLLOWS THAT THE STATUTE CREATING
THE NORTHERN PACIFIC RAILROAD COMPANY DID NOT BAR THE INTERSTATE
COMMERCE COMMISSION FROM AUTHORIZING A MERGER INVOLVING THE NORTHERN
PACIFIC RAILWAY COMPANY, A WISCONSIN CORPORATION.  /20/  WE FIND THAT
THE COMMISSION ACTED WITHIN ITS AUTHORITY IN ASSUMING JURISDICTION OVER
THE INSTANT MERGER PROPOSAL AND THAT RAILWAY IS NOT BARRED BY THE
STATUTE FROM PARTICIPATING IN THAT MERGER.  WE HAVE CONSIDERED
LIVINGSTON'S OTHER CONTENTIONS AND FIND THEM TO BE WITHOUT MERIT. 

        CONCLUSION 

ON THE ENTIRE RECORD WE CANNOT SAY THAT THE DISTRICT COURT ERRED IN
UPHOLDING THE ORDER SET FORTH IN THE SECOND REPORT OR THAT THE
COMMISSION HAS DONE OTHER THEN GIVE EFFECT TO THE TRANSPORTATION ACT OF
1920 AS AMENDED IN 1940, WHICH VESTED IN THE COMMISSION THE
RESPONSIBILITY OF BALANCING THE VALUES OF COMPETITION AGAINST THE NEED
FOR CONSOLIDATION OF RAIL TRANSPORTATION UNITS. 

THE JUDGMENT OF THE DISTRICT COURT IS THEREFORE AFFIRMED AND THE
STAY GRANTED BY THIS COURT PENDING THE RESOLUTION OF THESE APPEALS IS
HEREBY VACATED. 

/1/  THE THREE-JUDGE COURT DECISION IS REPORTED AS UNITED STATES V.
UNITED STATES, 296 F.SUPP.  852 (D.C.D.C. 1968). 

/2/  THE COLORADO & SOUTHERN RAILWAY COMPANY AND THE FORT WORTH &
DENVER RAILWAY COMPANY ARE BOTH CONTROLLED BY THE BURLINGTON. 

/3/  THE VOTE IN THIS HISTORIC CASE WAS 5 TO 4 WITH ONE OF THE
MAJORITY, MR. JUSTICE BREWER, JOINING ON NARROWER GROUNDS. 

/4/  SEE GREAT NORTHERN PACIFIC R. CO. ACQUISITION, 162 I.C.C. 37
(1930). 

/5/  AMONG THE ALLIED TRANSACTIONS WERE THE ISSUANCE OF CERTAIN
SECURITIES AND THE ASSUMPTION OF OBLIGATIONS AND LIABILITY IN RESPECT
OF SECURITIES UNDER SEC. 20A OF THE INTERSTATE COMMERCE ACT, AND THE
OBTAINING OF CERTAIN EXTENSIONS AND ABANDONMENTS OF RAILROAD LINES
UNDER SECS. 1(18) TO 1(20), INCLUSIVE, OF THE ACT. 

/6/  328 I.C.C. 460 (1966).  THE MAJORITY INCLUDED COMMISSIONERS
BUSH, TUCKER, WEBB, TIERNEY, BROWN, AND DEASON.  COMMISSIONERS TUGGLE,
FREAS, MURPHY, WALRATH, AND GOFF DISSENTED. 

/7/  THE NORTHERN LINES ALSO AGREED NOT TO OPPOSE THE AUTHORIZATION OF
A PROPOSED MILWAUKEE-NORTH WESTERN MERGER. 

/8/  PETITIONS WERE ALSO FILED BY THE NORTHERN PACIFIC STOCKHOLDERS'
PROTECTIVE COMMITTEE SEEKING FURTHER HEARINGS WITH RESPECT TO THE
JUSTNESS AND REASONABLENESS OF THE TERMS OF THE MERGER AGREEMENT, AND
THE DENVER & RIO GRANDE RAILROAD SEEKING AN INVESTIGATION INTO THE
AGREEMENTS ENTERED INTO BY THE APPLICANTS WITH THE MILWAUKEE AND THE
NORTH WESTERN.  THESE PETITIONS WERE DENIED. 

/9/  331 I.C.C. 228 (1967).  COMMISSIONERS TUGGLE, MURPHY, WALRATH,
BUSH, TUCKER, DEASON, STAFFORD, AND SYPHERS VOTED TO APPROVE THE
MERGER, WHILE COMMISSIONERS TIERNEY AND BROWN DISSENTED.  COMMISSIONER
HARDIN DID NOT PARTICIPATE IN THE DECISION. 

/10/  IN THIS ORDER THE COMMISSION MODIFIED ONE OF THE CONDITIONS
PLACED ON THE MERGER BY THE ORDER OF NOVEMBER 30, 1967.  ON JUNE 17,
1968, A FURTHER ORDER WAS ISSUED, RULING THAT THE MILWAUKEE MUST BE
ALLOWED TO BRING GRAIN TRAFFIC THROUGH 11 GATEWAYS OPENED TO IT BY
CONDITIONS CONTAINED IN THE SECOND REPORT.  NEITHER THE ORDER OF APRIL
11 NOR THAT OF JUNE 17 WAS CHALLENGED IN THE DISTRICT COURT.  HENCE,
THEY ARE NOT BEFORE US. 

/11/  ATTACKING THE MERGER WERE THE FOLLOWING:  THE NORTHERN PACIFIC
STOCKHOLDERS' PROTECTIVE COMMITTEE; THE CITY OF AUBURN, WASHINGTON; THE
STATE OF WASHINGTON; THE BOARD OF RAILROAD COMMISSIONERS OF MONTANA;
THE LIVINGSTON ANTI-MERGER COMMITTEE; AND THE PUBLIC SERVICE COMMISSION
OF MINNESOTA. 

/12/  THE INTERVENING DEFENDANTS INCLUDED THE APPLICANTS, THE
MILWAUKEE, THE PUBLIC UTILITY COMMISSIONER OF OREGON, AND 230 PACIFIC
NORTHWEST SHIPPERS. 

/13/  WE MIGHT NOTE THAT THE SUBSTANCE OF THE DEPARTMENT'S POSITION
WITH RESPECT TO THE COMMISSION'S POWER TO APPROVE CONSOLIDATIONS WAS
PRESENTED TO THIS COURT BY THE SECRETARY OF ARGICULTURE IN NO. 31, O.T.
1943, MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67 (1944), BRIEF
FOR SECRETARY OF AGRICULTURE OF THE UNITED STATES 38, 40, AND TO THE
THREE-JUDGE COURT IN THE SEABOARD-COAST LINE MERGER LITIGATION, FLORIDA
EAST COAST R. CO. V. UNITED STATES, 259 F.SUPP.  993, 1012-1013
(D.C.M.D. FLA. 1966), AFF'D PER CURIAM, 386 U.S. 544 (1967).  IN BOTH
OF THESE CASES, ONE DECIDED IN 1944 AND THE OTHER IN 1966, THE
DEPARTMENT'S POSITION WAS REJECTED.  IN ADDITION, IN 1962 A BILL WAS
BEFORE THE SENATE THAT WOULD HAVE IMPOSED A MORATORIUM ON THE
COMMISSION'S APPROVAL OF LARGE RAILROAD MERGERS THAT WOULD OTHERWISE
VIOLATE SEC. 7 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. SEC. 18. 
THE DEPARTMENT ACTIVELY SUPPORTED THE BILL.  IT WAS NOT REPORTED OUT OF
COMMITTEE.  SEE HEARINGS ON S. 3097 BEFORE THE SUBCOMMITTEE ON
ANTITRUST AND MONOPOLY OF THE SENATE COMMITTEE ON THE JUDICIARY, 87TH
CONG., 2D SESS. (1962). 

/14/  THE COMMISSION APPARENTLY HAD NO DIFFICULTY IN APPROVING A
MERGER OF THE NORTHERN LINES UNDER A PLAN SIMILAR TO THAT HELD
VIOLATIVE OF THE SHERMAN ACT IN NORTHERN SECURITIES CO. V. UNITED
STATES, 193 U.S. 197 (1904).  THE COMMISSION GAVE AS ONE OF THE
CONSIDERATIONS LEADING IT TO APPROVE THE PROPOSED MERGER, "THE
FEASIBILITY OF MAKING LARGE OPERATING ECONOMIES."  GREAT NORTHERN
PACIFIC R. CO. ACQUISITION, 162 I.C.C. 37, 47 (1930).     /15/  REPORT
OF COMMITTEE APPOINTED SEPTEMBER 20, 1938, BY THE.PRESIDENT OF THE
UNITED STATES, TO SUBMIT RECOMMENDATIONS UPON THE GENERAL
TRANSPORTATION SITUATION, DECEMBER 23, 1938, IN HEARINGS ON H.R. 2531
BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 76TH
CONG., 1ST SESS., 259-308 (1939). 

/16/  APPELLANT COMMITTEE REPRESENTS ABOUT 3% OF NORTHERN PACIFIC'S
STOCKHOLDERS, WHO HOLD APPROXIMATELY 5% OF THE OUTSTANDING SHARES OF
NORTHERN PACIFIC. 

/17/  NORTHERN PACIFIC'S SHAREHOLDERS APPROVED THE MERGER TERMS IN
1961 BY A VOTE OF 73.81% TO 6.64%, THE REMAINDER OF THE STOCK NOT BEING
VOTED.  IN 1968 THE SHAREHOLDERS AGAIN APPROVED THE MERGER'S TERMS, AS
CONDITIONED BY THE ICC'S SECOND REPORT, 73.2% VOTING FOR AND 2.57%
VOTING AGAINST, THE REMAINDER NOT VOTING.  PRIOR TO BOTH OF THESE VOTES
THE MEMBERS OF THE APPELLANT COMMITTEE VIGROUSLY URGED THE SHAREHOLDERS
TO REJECT THE MERGER AS BEING UNFAIR BECAUSE OF THE LOW VALUE GIVEN THE
NATURAL RESOURCE PROPERTIES. 

/18/  SEE ACT OF JULY 2, 1864, SEC. 3, 13 STAT. 367. 

/19/  296 F.SUPP.  853, 877 (D.C.D.C. 1968). 

/20/  APPELLEES CONTEND THAT UNDER SECS. 5(11) AND 20A(7) OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. 5(11), 20A(7), THE APPROVAL OF A
CONSOLIDATION PROPOSAL OPERATES TO RELIEVE THE APPLICANTS FROM ANY
INHIBITING STATE OR FEDERAL LAWS, THAT THE CHARTER OF RAILROAD IS SUCH
A LAW, AND THAT APPROVAL OF THE INSTANT MERGER PROPOSAL MODIFIES ANY
CONFLICTING PROVISIONS IN THAT CHARTER.  SINCE WE DO NOT FIND
RAILROAD'S CHARTER TO BE BINDING UPON RAILWAY, WE NEED NOT REACH THAT
CONTENTION. 

(APPENDIXES A AND B FOLLOW THIS PAGE.)  (APPENDIX A OMITTED)
(APPENDIX B OMITTED) 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THESE CASES. 

ASSISTANT ATTORNEY GENERAL MCLAREN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, DEPUTY
SOLICITOR GENERAL SPRINGER, AND HOWARD E. SHAPIRO.  LOUIS B. DAILEY
ARGUED THE CAUSE FOR APPELLANTS IN NO. 38.  WITH HIM ON THE BRIEFS WAS
HARRY TYSON CARTER.  VALENTINE B. DEALE ARGUED THE CAUSE AND FILED
BRIEFS FOR APPELLANT IN NO. 44.  ROBERT L. WALD AND JOEL E. HOFFMAN
FILED A BRIEF FOR APPELLANT IN NO. 43. 

FRITZ R. KAHN ARGUED THE CAUSE FOR APPELLEE INTERSTATE COMMERCE
COMMISSION IN ALL CASES.  WITH HIM ON THE BRIEF WERE ROBERT W. GINNANE
AND JEROME NELSON.  HUGH B. COX ARGUED THE CAUSE FOR APPELLEES GREAT
NORTHERN RAILWAY CO. ET AL. IN ALL CASES.  WITH HIM ON THE BRIEFS WERE
RAY GARRETT, D. ROBERT THOMAS, LEE B. MCTURNAN, MICHAEL BOUDIN, ANTHONY
KANE, LOUIS E. TORINUS, EARL F. REQUA, FRANK S. FARRELL, ELDON MARTIN,
R. T. CUBBAGE, AND RICHARD J. FLYNN.  FRED H. TOLAN ARGUED THE CAUSE
FOR APPELLEES PACIFIC NORTHWEST SHIPPERS IN NO. 28.  WITH HIM ON THE
BRIEF WAS ALAN F. WOHLSETTER.  RAYMOND K. MERRILL ARGUED THE CAUSE FOR
APPELLEE CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. IN NO.
28.  WITH HIM ON THE BRIEF WERE EDWIN O. SCHIEWE, WARREN H. PLOEGER,
THOMAS H. PLOSS, AND EDWARD H. FOLEY.  LEE JOHNSON, ATTORNEY GENERAL OF
OREGON, AND RICHARD W. SABIN, ASSISTANT ATTORNEY GENERAL, FILED A BRIEF
FOR APPELLEE PUBLIC UTILITY COMMISSIONER OF OREGON IN NO. 28. 
..END :





















ROSS V. BERNHARD, 396 U.S. 531 


       ROSS ET AL., TRUSTEES V. BERNHARD ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

          SECOND CIRCUIT

        NO. 42.  ARGUED NOVEMBER 10, 1969-- DECIDED FEBRUARY 2,

           1970 


THE RIGHT TO TRIAL BY JURY PRESERVED BY THE SEVENTH AMENDMENT EXTENDS
TO A STOCKHOLDER'S DERIVATIVE SUIT WITH RESPECT TO THOSE ISSUES AS TO
WHICH THE CORPORATION, HAD IT BEEN SUING IN ITS OWN RIGHT, WOULD HAVE
BEEN ENTITLED TO A JURY TRIAL. 

403 F.2D 909, REVERSED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE SEVENTH AMENDMENT TO THE CONSTITUTION PROVIDES THAT IN "(SUITS
AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED TWENTY
DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED."  WHETHER THE
AMENDMENT GUARANTEES THE RIGHT TO A JURY TRIAL IN STOCKHOLDERS'
DERIVATIVE ACTIONS IS THE ISSUE NOW BEFORE US. 

PETITIONERS BROUGHT THIS DERIVATIVE SUIT IN FEDERAL COURT AGAINST
THE DIRECTORS OF THEIR CLOSED-END INVESTMENT COMPANY, THE LEHMAN
CORPORATION, AND THE CORPORATION'S BROKERS, LEHMAN BROTHERS.  THEY
CONTENDED THAT LEHMAN BROTHERS CONTROLLED THE CORPORATION THROUGH AN
ILLEGALLY LARGE REPRESENTATION ON THE CORPORATION'S BOARD OF DIRECTORS,
IN VIOLATION OF THE INVESTMENT COMPANY ACT OF 1940, 54 STAT. 789, 15
U.S.C. 80A-1 ET SEQ., AND USED THIS CONTROL TO EXTRACT EXCESSIVE
BROKERAGE FEES FROM THE CORPORATION.  THE DIRECTORS OF THE CORPORATION
WERE ACCUSED OF CONVERTING CORPORATE ASSETS AND OF "GROSS ABUSE OF
TRUST, GROSS MISCONDUCT, WILLFUL MISFEASANCE, BAD FAITH, (AND) GROSS
NEGLIGENCE."  BOTH THE INDIVIDUAL DEFENDANTS AND LEHMAN BROTHERS WERE
ACCUSED OF BREACHES OF FIDUCIARY DUTY.  IT WAS ALLEGED THAT THE
PAYMENTS TO LEHMAN BROTHERS CONSTITUTED WASTE AND SPOLIATION, AND THAT
THE CONTRACT BETWEEN THE CORPORATION AND LEHMAN HAD BEEN VIOLATED. 
PETITIONERS REQUESTED THAT THE DEFENDANTS "ACCOUNT FOR AND PAY TO THE
CORPORATION FOR THEIR PROFITS AND GAINS AND ITS LOSSES."  PETITIONERS
ALSO DEMANDED A JURY TRIAL ON THE CORPORATION'S CLAIMS. 

ON MOTION TO STRIKE PETITIONERS' JURY TRIAL DEMAND, THE DISTRICT
COURT HELD THAT A SHAREHOLDER'S RIGHT TO A JURY ON HIS CORPORATION'S
CAUSE OF ACTION WAS TO BE JUDGED AS IF THE CORPORATION WERE ITSELF THE
PLAINTIFF.  ONLY THE SHAREHOLDER'S INITIAL CLAIM TO SPEAK FOR THE
CORPORATION HAD TO BE TRIED TO THE JUDGE.  275 F.SUPP.  569.  CONVINCED
THAT "THERE ARE SUBSTANTIAL GROUNDS FOR DIFFERENCE OF OPINION AS TO
THIS QUESTION AND . . . AN IMMEDIATE APPEAL WOULD MATERIALLY ADVANCE
THE ULTIMATE TERMINATION OF THIS LITIGATION," THE DISTRICT COURT
PERMITTED AN INTERLOCUTORY APPEAL.  28 U.S.C. 1292(B).  THE COURT OF
APPEALS REVERSED, HOLDING THAT A DERIVATIVE ACTION WAS ENTIRELY
EQUITABLE IN NATURE, AND NO JURY WAS AVAILABLE TO TRY ANY PART OF IT.
403 F.2D 909.  IT SPECIFICALLY DISAGREED WITH DEPINTO V. PROVIDENT
SECURITY LIFE INS. CO., 323 F.2D 826 (C.A. 9TH CIR. 1963), CERT.
DENIED, 376 U.S. 950 (1964), ON WHICH THE DISTRICT COURT HAD RELIED. 
BECAUSE OF THIS CONFLICT, WE GRANTED CERTIORARI.  394 U.S. 916 (1969). 

WE REVERSE THE HOLDING OF THE COURT OF APPEALS THAT IN NO EVENT DOES
THE RIGHT TO A JURY TRIAL PRESERVED BY THE SEVENTH AMENDMENT EXTEND TO
DERIVATIVE ACTIONS BROUGHT BY THE STOCKHOLDERS OF A CORPORATION.  WE
HOLD THAT THE RIGHT TO JURY TRIAL ATTACHES TO THOSE ISSUES IN
DERIVATIVE ACTIONS AS TO WHICH THE CORPORATION, IF IT HAD BEEN SUING IN
ITS OWN RIGHT, WOULD HAVE BEEN ENTITLED TO A JURY. 

THE SEVENTH AMENDMENT PRESERVES TO LITIGANTS THE RIGHT TO JURY TRIAL
IN SUITS AT COMMON LAW-- 

"NOT MERELY SUITS, WHICH THE COMMON LAW RECOGNIZED AMONG ITS OLD AND
SETTLED PROCEEDINGS, BUT SUITS IN WHICH LEGAL RIGHTS WERE TO BE
ASCERTAINED AND DETERMINED, IN CONTRADISTINCTION TO THOSE WHERE
EQUITABLE RIGHTS ALONE WERE RECOGNIZED, AND EQUITABLE REMEDIES WERE
ADMINISTERED . . . . IN A JUST SENSE, THE AMENDMENT THEN MAY WELL BE
CONSTRUED TO EMBRACE ALL SUITS WHICH ARE NOT OF EQUITY AND ADMIRALTY
JURISDICTION, WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME
TO SETTLE LEGAL RIGHTS."  PARSONS V. BEDFORD, 3 PET. 433, 447 (1830). 

HOWEVER DIFFICULT IT MAY HAVE BEEN TO DEFINE WITH PRECISION THE LINE
BETWEEN ACTIONS AT LAW DEALING WITH LEGAL RIGHTS AND SUITS IN EQUITY
DEALING WITH EQUITABLE MATTERS, WHITEHEAD V. SHATTUCK, 138 U.S. 146,
151 (1891), SOME PROCEEDINGS WERE UNMISTAKABLY ACTIONS AT LAW TRIABLE
TO A JURY.  THE SEVENTH AMENDMENT, FOR EXAMPLE, ENTITLED THE PARTIES TO
A JURY TRIAL IN ACTIONS FOR DAMAGES TO A PERSON OR PROPERTY, FOR LIBEL
AND SLANDER, FOR RECOVERY OF LAND, AND FOR CONVERSION OF PERSONAL
PROPERTY.  /1/  JUST AS CLEARLY, A CORPORATION, ALTHOUGH AN ARTIFICIAL
BEING, WAS COMMONLY ENTITLED TO SUE AND BE SUED IN THE USUAL FORMS OF
ACTION, AT LEAST IN ITS OWN STATE.  SEE PAUL V. VIRGINIA, 8 WALL.  168
(1869).  WHETHER THE CORPORATION WAS VIEWED AS AN ENTITY SEPARATE FROM
ITS STOCKHOLDERS OR AS A DEVICE PERMITTING ITS STOCKHOLDERS TO CARRY ON
THEIR BUSINESS AND TO SUE AND BE SUED, A CORPORATION'S SUIT TO ENFORCE
A LEGAL RIGHT WAS AN ACTION AT COMMON LAW CARRYING THE RIGHT TO JURY
TRIAL AT THE TIME THE SEVENTH AMENDMENT WAS ADOPTED.  /2/ 

THE COMMON LAW REFUSED, HOWEVER, TO PERMIT STOCKHOLDERS TO CALL
CORPORATE MANAGERS TO ACCOUNT IN ACTIONS AT LAW.  THE POSSIBILITIES FOR
ABUSE, THUS PRESENTED, WERE NOT IGNORED BY CORPORATE OFFICERS AND
DIRECTORS.  EARLY IN THE 19TH CENTRY, EQUITY PROVIDED RELIEF BOTH IN
THIS COUNTRY AND IN ENGLAND.  WITHOUT DETAILING THESE DEVELOPMENTS, /3/
IT SUFFICIES TO SAY THAT THE REMEDY IN THIS COUNTRY, FIRST DEALT WITH
BY THIS COURT IN DODGE V. WOOLSEY, 18 HOW.  331 (1856), PROVIDED
REDRESS NOT ONLY AGAINST FAITHLESS OFFICERS AND DIRECTORS BUT ALSO
AGAINST THIRD PARTIES WHO HAD DAMAGED OR THREATENED THE CORPORATE
PROPERTIES AND WHOM THE CORPORATION THROUGH ITS MANAGERS REFUSED TO
PURSUE.  THE REMEDY MADE AVAILABLE IN EQUITY WAS THE DERIVATIVE SUIT,
VIEWED IN THIS COUNTRY AS A SUIT TO ENFORCE A CORPORATE CAUSE OF ACTION
AGAINST OFFICERS, DIRECTORS, AND THIRD PARTIES.  AS ELABORATED IN THE
CASES, ONE PRECONDITION FOR THE SUIT WAS A VALID CLAIM ON WHICH THE
CORPORATION COULD HAVE SUED; ANOTHER WAS THAT THE CORPORATION ITSELF
HAD REFUSED TO PROCEED AFTER SUITABLE DEMAND, UNLESS EXCUSED BY
EXTRAORDINARY CONDITIONS.  /4/  THUS THE DUAL NATURE OF THE
STOCKHOLDER'S ACTION:  FIRST, THE PLAINTIFF'S RIGHT TO SUE ON BEHALF OF
THE CORPORATION AND, SECOND, THE MERITS OF THE CORPORATION'S CLAIM
ITSELF.  /5/ 

DERIVATIVE SUITS POSED NO SEVENTH AMENDMENT PROBLEMS WHERE THE
ACTION AGAINST THE DIRECTORS AND THIRD PARTIES WOULD HAVE BEEN BY A
BILL IN EQUITY HAD THE CORPORATION BROUGHT THE SUIT.  OUR CONCERN IS
WITH CASES BASED UPON A LEGAL CLAIM OF THE CORPORATION AGAINST
DIRECTORS OR THIRD PARTIES.  DOES THE TRIAL OF SUCH CLAIMS AT THE SUIT
OF A STOCKHOLDER AND WITHOUT A JURY VIOLATE THE SEVENTH AMENDMENT? 

THE QUESTION AROSE IN THIS COURT IN THE CONTEXT OF A DERIVATIVE SUIT
FOR TREBLE DAMAGES UNDER THE ANTITRUST LAWS.  FLEITMANN V. WELSBACH
STREET LIGHTING CO., 240 U.S. 27 (1916).  NOTING THAT THE BILL IN
EQUITY SET UP A CLAIM OF THE CORPORATION ALONE, MR. JUSTICE HOLMES
OBSERVED THAT IF THE CORPORATION WERE THE PLAINTIFF, "NO ONE CAN DOUBT
THAT ITS ONLY REMEDY WOULD BE AT LAW," AND INQUIRED "WHY THE
DEFENDANTS' RIGHT TO A JURY TRIAL SHOULD BE TAKEN AWAY BECAUSE THE
PRESENT PLAINTIFF CANNOT PERSUADE THE ONLY PARTY HAVING A CAUSE OF
ACTION TO SUE-- HOW THE LIABILITY WHICH IS THE PRINCIPAL MATTER CAN BE
CONVERTED INTO AN INCIDENT OF THE PLAINTIFF'S DOMESTIC DIFFICULTIES
WITH THE COMPANY THAT HAS BEEN WRONGED"?  ID., AT 28.  HIS ANSWER WAS
THAT THE BILL DID NOT STATE A GOOD CAUSE OF ACTION IN EQUITY.  AGREEING
THAT THERE WERE "CASES IN WHICH THE NATURE OF THE RIGHT ASSERTED FOR
THE COMPANY, OR THE FAILURE OF THE DEFENDANTS CONCERNED TO INSIST UPON
THEIR RIGHTS, OR A DIFFERENT STATE SYSTEM, HAS LED TO THE WHOLE MATTER
BEING DISPOSED OF IN EQUITY," HE CONCLUDED THAT WHEN THE PENALTY OF
TRIPLE DAMAGES IS SOUGHT, THE ANTITRUST STATUTE PLAINLY ANTICIPATED A
JURY TRIAL AND SHOULD NOT BE READ AS "ATTEMPTING TO AUTHORIZE LIABILITY
TO BE ENFORCED OTHERWISE THAN THROUGH THE VERDICT OF A JURY IN A COURT
OF COMMON LAW."  ID., AT 28-29.  ALTHOUGH THE DECISION HAD OBVIOUS
SEVENTH AMENDMENT OVERTONES, ITS ULTIMATE RATIONALE WAS GROUNDED IN THE
ANTITRUST LAWS.  /6/

WHERE PENAL DAMAGES WERE NOT INVOLVED, HOWEVER, THERE WAS NO
AUTHORITATIVE PARALLEL TO FLEITMANN IN THE FEDERAL SYSTEM SQUARELY
PASSING ON THE APPLICABILITY OF THE SEVENTH AMENDMENT TO THE TRIAL OF A
LEGAL CLAIM PRESENTED IN A PRE-MERGER DERIVATIVE SUIT.  WHAT CAN BE
GLEANED FROM THIS COURT'S OPINIONS /7/  IS NOT INCONSISTENT WITH THE
GENERAL UNDERSTANDING, REFLECTED BY THE STATE COURT DECISIONS AND
SECONDARY SOURCES, THAT EQUITY COULD PROPERLY RESOLVE CORPORATE CLAIMS
OF ANY KIND WITHOUT A JURY WHEN PROPERLY PLEADED IN DERIVATIVE SUITS
COMPLYING WITH THE EQUITY RULES.  /8/ 

SUCH WAS THE PREVAILING OPINION WHEN THE FEDERAL RULES OF CIVIL
PROCEDURE WERE ADOPTED IN 1938.  IT CONTINUED UNTIL 1963 WHEN THE COURT
OF APPEALS FOR THE NINTH CIRCUIT, RELYING ON THE FEDERAL RULES AS
CONSTRUED AND APPLIED IN BEACON THEATRES, INC. V. WESTOVER, 359 U.S.
500 (1959), AND DAIRY QUEEN, INC. V. WOOD, 369 U.S. 469 (1962),
REQUIRED THE LEGAL ISSUES IN A DERIVATIVE SUIT TO BE TRIED TO A JURY. 
/9/  DEPINTO V. PROVIDENT SECURITY LIFE INS. CO., 323 F.2D 826.  IT WAS
THIS DECISION THAT THE DISTRICT COURT FOLLOWED IN THE CASE BEFORE US
AND THAT THE COURT OF APPEALS REJECTED. 

BEACON AND DAIRY QUEEN PRESAGED DEPINTO.  UNDER THOSE CASES, WHERE
EQUITABLE AND LEGAL CLAIMS ARE JOINED IN THE SAME ACTION, THERE IS A
RIGHT TO JURY TRIAL ON THE LEGAL CLAIMS WHICH MUST NOT BE INFRINGED
EITHER BY TRYING THE LEGAL ISSUES AS INCIDENTAL TO THE EQUITABLE ONES
OR BY A COURT TRIAL OF A COMMON ISSUE EXISTING BETWEEN THE CLAIMS.  THE
SEVENTH AMENDMENT QUESTION DEPENDS ON THE NATURE OF THE ISSUE TO BE
TRIED RATHER THAN THE CHARACTER OF THE OVERALL ACTION.  /10/  SEE
SIMLER V. CONNER, 372 U.S. 221 (1963).  THE PRINCIPLE OF THESE CASES
BEARS HEAVILY ON DERIVATIVE ACTIONS. 

WE HAVE NOTED THAT THE DERIVATIVE SUIT HAS DUAL ASPECTS:  FIRST, THE
STOCKHOLDER'S RIGHT TO SUE ON BEHALF OF THE CORPORATION, HISTORICALLY
AN EQUITABLE MATTER; SECOND, THE CLAIM OF THE CORPORATION AGAINST
DIRECTORS OR THIRD PARTIES ON WHICH, IF THE CORPORATION HAD SUED AND
THE CLAIM PRESENTED LEGAL ISSUES, THE COMPANY COULD DEMAND A JURY
TRIAL.  AS IMPLIED BY MR. JUSTICE HOLMES IN FLEITMANN, LEGAL CLAIMS ARE
NOT MAGICALLY CONVERTED INTO EQUITABLE ISSUES BY THEIR PRESENTATION TO
A COURT OF EQUITY IN A DERIVATIVE SUIT.  THE CLAIM PRESSED BY THE
STOCKHOLDER AGAINST DIRECTORS OR THIRD PARTIES "IS NOT HIS OWN BUT THE
CORPORATION'S."  KOSTER V. LUMBERMENS MUT. CAS. CO., 330 U.S. 518, 522
(1947).  THE CORPORATION IS A NECESSARY PARTY TO THE ACTION; WITHOUT IT
THE CASE CANNOT PROCEED.  ALTHOUGH NAMED A DEFENDANT, IT IS THE REAL
PARTY IN INTEREST, THE STOCKHOLDER BEING AT BEST THE NOMINAL
PLAINTIFF.  THE PROCEEDS OF THE ACTION BELONG TO THE CORPORATION AND IT
IS BOUND BY THE RESULT OF THE SUIT.  /11/  THE HEART OF THE ACTION IS
THE CORPORATE CLAIM.  IF IT PRESENTS A LEGAL ISSUE, ONE ENTITLING THE
CORPORATION TO A JURY TRIAL UNDER THE SEVENTH AMENDMENT, THE RIGHT TO A
JURY IS NOT FORFEITED MERELY BECAUSE THE STOCKHOLDER'S RIGHT TO SUE
MUST FIRST BE ADJUDICATED AS AN EQUITABLE ISSUE TRIABLE TO THE COURT. 
BEACON AND DAIRY QUEEN REQUIRE NO LESS. 

IF UNDER OLDER PROCEDURES, NOW DISCARDED, A COURT OF EQUITY COULD
PROPERLY TRY THE LEGAL CLAIMS OF THE CORPORATION PRESENTED IN A
DERIVATIVE SUIT, IT WAS BECAUSE IRREPARABLE INJURY WAS THREATENED AND
NO REMEDY AT LAW EXISTED AS LONG AS THE STOCKHOLDER WAS WITHOUT
STANDING TO SUE AND THE CORPORATION ITSELF REFUSED TO PURSUE ITS OWN
REMEDIES.  INDEED, FROM 1789 UNTIL 1938, THE JUDICIAL CODE EXPRESSLY
FORBADE COURTS OF EQUITY FROM ENTERTAINING ANY SUIT FOR WHICH THERE WAS
AN ADEQUATE REMEDY AT LAW.  /12/  THIS PROVISION SERVED "TO GUARD THE
RIGHT OF TRIAL BY JURY PRESERVED BY THE SEVENTH AMENDMENT AND TO THAT
END IT SHOULD BE LIBERALLY CONSTRUED."  SCHOENTHAL V. IRVING TRUST CO.,
287 U.S. 92, 94 (1932).  IF, BEFORE 1938, THE LAW HAD BORROWED FROM
EQUITY, AS IT BORROWED OTHER THINGS, THE IDEA THAT STOCKHOLDERS COULD
LITIGATE FOR THEIR RECALCITRANT CORPORATION, THE CORPORATE CLAIM, IF
LEGAL, WOULD UNDOUBTEDLY HAVE BEEN TRIED TO A JURY. 

OF COURSE, THIS DID NOT OCCUR, BUT THE FEDERAL RULES HAD A SIMILAR
IMPACT.  ACTIONS ARE NO LONGER BROUGHT AS ACTIONS AT LAW OR SUITS IN
EQUITY.  UNDER THE RULES THERE IS ONLY ONE ACTION-- A "CIVIL ACTION"--
IN WHICH ALL CLAIMS MAY BE JOINED AND ALL REMEDIES ARE AVAILABLE. 
PURELY PROCEDURAL IMPEDIMENTS TO THE PRESENTATION OF ANY ISSUE BY ANY
PARTY, BASED ON THE DIFFERENCE BETWEEN LAW AND EQUITY, WERE DESTROYED. 
IN A CIVIL ACTION PRESENTING A STOCKHOLDER'S DERIVATIVE CLAIM, THE
COURT AFTER PASSING UPON THE PLAINTIFF'S RIGHT TO SUE ON BEHALF OF THE
CORPORATION IS NOW ABLE TO TRY THE CORPORATE CLAIM FOR DAMAGES WITH THE
AID OF A JURY.  /13/  SEPARABLE CLAIMS MAY BE TRIED SEPARATELY, FED.
RULE CIV. PROC. 42(B), OR LEGAL AND EQUITABLE ISSUES MAY BE HANDLED IN
THE SAME TRIAL.  FANCHON & MARCO, INC. V. PARAMOUNT PICTURES, INC., 202
F.2D 731 (C.A.2D CIR. 1953).  THE HISTORICAL RULE PREVENTING A COURT OF
LAW FROM ENTERTAINING A SHAREHOLDER'S SUIT ON BEHALF OF THE CORPORATION
IS OBSOLETE; IT IS NO LONGER TENABLE FOR A DISTRICT COURT,
ADMINISTERING BOTH LAW AND EQUITY IN THE SAME ACTION, TO DENY LEGAL
REMEDIES TO A CORPORATION, MERELY BECAUSE THE CORPORATION'S SPOKESMEN
ARE ITS SHAREHOLDERS RATHER THAN ITS DIRECTORS.  UNDER THE RULES, LAW
AND EQUITY ARE PROCEDURALLY COMBINED; NOTHING TURNS NOW UPON THE FORM
OF THE ACTION OR THE PROCEDURAL DEVICES BY WHICH THE PARTIES HAPPEN TO
COME BEFORE THE COURT.  THE "EXPANSION OF ADEQUATE LEGAL REMEDIES
PROVIDED BY . . . THE FEDERAL RULES NECESSARILY AFFECTS THE SCOPE OF
EQUITY."  BEACON THEATRES, INC. V. WESTOVER, 359 U.S.,AT 509.     THUS,
FOR EXAMPLE, BEFORE-MERGER CLASS ACTIONS WERE LARGELY A DEVICE OF
EQUITY, AND THERE WAS NO RIGHT TO A JURY EVEN ON ISSUES THAT MIGHT,
UNDER OTHER CIRCUMSTANCES, HAVE BEEN TRIED TO A JURY.  5 J.MOORE,
FEDERAL PRACTICE PARA 38.38(2) (2D ED. 1969); 3B ID., PARA. 23.02(1). 
ALTHOUGH AT LEAST ONE POST-MERGER COURT HELD THAT THE DEVICE WAS NOT
AVAILABLE TO TRY LEGAL ISSUES, /14/  IT NOW SEEMS SETTLED IN THE LOWER
FEDERAL COURTS THAT CLASS ACTION PLAINTIFFS MAY OBTAIN A JURY TRIAL ON
ANY LEGAL ISSUES THEY PRESENT.  MONTGOMERY WARD & CO. V. LANGER, 168
F.2D 182 (C.A. 8TH CIR. 1948); SEE OSKOIAN V. CANUEL, 269 F.2D 311
(C.A. 1ST CIR. 1959), AFF'G 23 F.R.D. 307; SYRES V. OIL WORKERS INT'L
UNION, LOCAL 23, 257 F.2D 479 (C.A. 5TH CIR. 1958), CERT. DENIED, 358
U.S. 929 (1959).  2 W.BARRON & A.HOLTZOFF, FEDERAL PRACTICE AND
PROCEDURE 571 (WRIGHT ED. 1961). 

DERIVATIVE SUITS HAVE BEEN DESCRIBED AS ONE KIND OF "TRUE" CLASS
ACTION.  ID., SEC. 562.1.  WE ARE INCLINED TO AGREE WITH THE
DESCRIPTION, AT LEAST TO THE EXTENT IT RECOGNIZES THAT THE DERIVATIVE
SUIT AND THE CLASS ACTION WERE BOTH WAYS OF ALLOWING PARTIES TO BE
HEARD IN EQUITY WHO COULD NOT SPEAK AT LAW.  /15/  3B J.MOORE, FEDERAL
PRACTICE PARAS. 23.02(1), 23.1.16(1) (2D ED. 1969).  AFTER ADOPTION OF
THE RULES THERE IS NO LONGER ANY PROCEDURAL OBSTACLE TO THE ASSERTION
OF LEGAL RIGHTS BEFORE JURIES, HOWEVER THE PARTY MAY HAVE ACQUIRED
STANDING TO ASSERT THOSE RIGHTS.  GIVEN THE AVAILABILITY IN A
DERIVATIVE ACTION OF BOTH LEGAL AND EQUITABLE REMEDIES, WE THINK THE
SEVENTH AMENDMENT PRESERVES TO THE PARTIES IN A STOCKHOLDER'S SUIT THE
SAME RIGHT TO A JURY TRIAL THAT HISTORICALLY BELONGED TO THE
CORPORATION AND TO THOSE AGAINST WHOM THE CORPORATION PRESSED ITS LEGAL
CLAIMS. 

IN THE INSTANT CASE WE HAVE NO DOUBT THAT THE CORPORATION'S CLAIM
IS, AT LEAST IN PART, A LEGAL ONE.  THE RELIEF SOUGHT IS MONEY
DAMAGES.  THERE ARE ALLEGATIONS IN THE COMPLAINT OF A BREACH OF
FIDUCIARY DUTY, BUT THERE ARE ALSO ALLEGATIONS OF ORDINARY BREACH OF
CONTRACT AND GROSS NEGLIGENCE.  THE CORPORATION, HAD IT SUED ON ITS OWN
BEHALF, WOULD HAVE BEEN ENTITLED TO A JURY'S DETERMINATION, AT A
MINIMUM, OF ITS DAMAGES AGAINST ITS BROKER UNDER THE BROKERAGE CONTRACT
AND OF ITS RIGHTS AGAINST ITS OWN DIRECTORS BECAUSE OF THEIR
NEGLIGENCE.  UNDER THESE CIRCUMSTANCES IT IS UNNECESSARY TO DECIDE
WHETHER THE CORPORATION'S OTHER CLAIMS ARE ALSO PROPERLY TRIABLE TO A
JURY.  DAIRY QUEEN, INC. V. WOOD, 369 U.S. 469 (1962).  THE DECISION OF
THE COURT OF APPEALS IS REVERSED. 

              IT IS SO ORDERED. 

/1/  SEE E.G., CURRIDEN V. MIDDLETON, 232 U.S. 633 (1914); WHITEHEAD
V. SHATTUCK, 138 U.S. 146 (1891); 5 J.MOORE, FEDERAL PRACTICE PARA.
38.11(5) (2D ED. 1969). 

/2/  1 W.BLACKSTONE, COMMENTARIES *475; CF. BANK OF COLUMBIA V.
PATTERSON'S ADM'R, 7 CRANCH 299 (1813); BANK OF KENTUCKY V. WISTER, 2
PET. 318 (1829). 

/3/  PRUNTY, THE SHAREHOLDERS' DERIVATIVE SUIT:  NOTES ON ITS
DERIVATION, 32 N.Y.U.L.REV.  980 (1957), TRESTS THE DEVELOPMENT OF THE
EQUITABLE REMEDY. 

/4/  DELAWARE & HUDSON CO. V. ALBANY & S.R. CO., 213 U.S. 435
(1909); DOCTOR V. HARRINGTON, 196 U.S. 579 (1905); QUINCY V. STEEL, 120
U.S. 241 (1887); HAWES V. OAKLAND, 104 U.S. 450 (1882).  SOON AFTER
HAWES V. OAKLAND, SUPRA, THE PRECONDITIONS TO A SHAREHOLDER'S SUIT WERE
PROMULGATED AS EQUITY RULE 94, 104 U.S. IX, WHICH BECAME EQUITY RULE
27, 226 U.S. 656 (1912), THEN FED. RULE CIV. PROC. 23(B), 308 U.S. 690
(1938), AND IS NOW FED. RULE CIV. PROC. 23.1, 383 U.S. 1050 (1966). 

/5/  SEE KOSTER V. LUMBERMENS MUT. CAS. CO., 330 U.S. 518, 522-523
(1946); ASHWANDER V. TVA, 297 U.S. 288 (1936).  SEE ALSO 13 W.FLETCHER,
CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS 716 (1959); 4 J.POMEROY,
EQUITY JURISPRUDENCE 1095, P. 278 (5TH ED. 1941).  INSOFAR AS THE
STOCKHOLDERS MAY HAVE BEEN ASSERTING THEIR OWN DIRECT INTEREST, THEY
CLOSELY RESEMBLE OTHER CLASS ACTION PLAINTIFFS WHO COULD PROCEED,
BEFORE MERGER, ONLY IN EQUITY. 

/6/  THE DILEMMA OF THE STOCKHOLDER SEEKING TREBLE DAMAGES FOR THE
CORPORATION BECAME REAL AND COMPLETE IN UNITED COPPER CO. V.
AMALGAMATED COOPER CO., 244 U.S. 261 (1917), WHERE THE STOCKHOLDER
PLAINTIFF SOUGHT TREBLE DAMAGES IN AN ACTION AT LAW.  THE COURT
REJECTED THE CLAIM BY REITERATING THE TRADITIONAL VIEW THAT A
SHAREHOLDER WAS WITHOUT STANDING TO SUE AT LAW ON A CORPORATE CAUSE. 
THE TREBLE-DAMAGE ACTION WAS A LEGAL PROCEEDING AND ONLY THE
CORPORATION COULD BRING IT.  THE COURT OF APPEALS FOR THE SECOND
CIRUICT HAS HELD THAT THE FEDERAL RULES HAVE RESOLVED THE DILEMMA AND
THAT DERIVATIVE ACTIONS FOR TREBLE DAMAGES UNDER THE ANTITRUST LAWS ARE
NOW PROPER.  FACHON & MARCO, INC. V. PARAMOUNT PICTURES, INC., 202 F.2D
731 (C.A.2D CIR. 1953).  CF. RAMSBURG V. AMERICAN INV. CO. OF ILL., 231
F.2D 333 (C.A. 7TH CIR. 1956).  SEE GENERALLY COMMENT, FEDERAL
ANTITRUST LAW-- STOCKHOLDERS' REMEDIES FOR CORPORATE INJURY RESULTING
FROM ANTITRUST VIOLATIONS:  DERIVATIVE ANTITRUST SUIT AND FIDUCIARY
DUTY ACTION, 59 MICH.L.REV.  904 (1961). 

/7/  FOR EXAMPLE, IN AMALGAMATED COPPER THE COURT NOTED THAT IN
QUINCY V. STEEL, 120 U.S. 241 (1887), A SHAREHOLDER'S BILL IN EQUITY
THAT SOUGHT TO ENFORCE "A PURELY LEGAL CLAIM OF THE CORPORATION--
DAMAGES FOR BREACH OF CONTRACT" WAS DISMISSED, "NOT BECAUSE THE SUIT
SHOULD HAVE BEEN AT LAW, BUT BECAUSE THE BILL FAILED TO SHOW THAT
COMPLAINANT HAD MADE SUFFICIENT EFFORT TO INDUCE THE DIRECTORS TO ENTER
SUIT."  244 U.S.,AT 264-265, N. 2.  DELAWARE & HUDSON CO. V. ALBANY &
S.R. CO., SUPRA, N. 4, INVOLVED A DERIVATIVE SUIT FOR MONEY DAMAGES DUE
UNDER A LEASE.  THE STOCKHOLDERS' RIGHT TO SUE WAS SUSTAINED; NO JURY
TRIAL ISSUE APPEARS TO HAVE BEEN RAISED. 

/8/  SEE, E.G., GOETZ V. MANUFACTURERS' & TRADERS' TRUST CO., 154
MISC. 733, 277 N.Y.S. 802 (SUP. CT. 1935); ISAAC V. MARCUS, 258 N.Y.
257, 179 N.E. 487 (1932); MORTON V. MORTON REALTY CO., 41 IDAHO 729,
241 P. 1014 (1925); NEFF V. BARBER, 165 WIS. 503, 162 N.W. 667 (1917);
ROBINSON V. SMITH, 3 PAIGE CH. 222, 231, 233 (N.Y. 1832); 4 W.COOK,
CORPORATIONS 734 (8TH ED. 1923); S. THOMPSON & J. THOMPSON, LAW OF
CORPORATIONS SEC. 4661 (SUPP. 1931); 6 ID., 4653 (3D ED. 1927). 

/9/  THE POSSIBILITY THAT THE MERGED FEDERAL PRACTICE ALTERED THE
PROCEDURES IN DERIVATIVE SUITS WAS EARLY RECOGNIZED, FANCHON & MARCO,
INC. V. PARAMOUNT PICTURES, INC., SUPRA, N. 6, BUT UNTIL THE ACTION OF
THE DISTRICT COURT BELOW DEPINTO WAS ALONE IN HOLDING THAT A RIGHT TO A
JURY TRIAL EXISTED IN DERIVATIVE ACTIONS.  CF. RICHLAND V. CRANDALL,
259 F.SUPP.  274 (D.C.S.D.N.Y. 1966).  SEE ALSO METCALF V. SHAMEL, 166
CAL.APP.2D 789, 333 P.2D 857 (1956); STEINWAY V. GRIFFITH CONSOL. 
THEATRES, 273 P.2D 872 (OKLA. 1954). 

/10/  AS OUR CASES INDICATE, THE "LEGAL" NATURE OF AN ISSUE IS
DETERMINED BY CONSIDERING, FIRST, THE PRE-MERGER CUSTOM WITH REFERENCE
TO SUCH QUESTIONS; SECOND, THE REMEDY SOUGHT; AND, THIRD, THE PRACTICAL
ABILITIES AND LIMITATIONS OF JURIES.  OF THESE FACTORS, THE FIRST,
REQUIRING EXTENSIVE AND POSSIBLY ABSTRUSE HISTORICAL INQUIRY, IS
OBVIOUSLY THE MOST DIFFICULT TO APPLY.  SEE JAMES, RIGHT TO A JURY
TRIAL IN CIVIL ACTIONS, 72 YALE L.J. 655 (1963). 

/11/  SEE KOSTER V. LUMBERMENS MUT. CAS. CO., 330 U.S. 518 (1947);
MEYER V. FLEMING, 327 U.S. 161, 167 (1946); DAVENPORT V. DOWS, 18 WALL
626 (1874). 

/12/  THE JUDICIAL CODE OF 1911, SEC. 267, 36 STAT. 1163, RE
ENACTING THE ACT OF SEPT. 24, 1789, SEC. 16, 1 STAT. 82, PROVIDED:
"SUITS IN EQUITY SHALL NOT BE SUSTAINED IN ANY COURT OF THE UNITED
STATES IN ANY CASE WHERE A PLAIN, ADEQUATE, AND COMPLETE REMEDY MAY BE
HAD AT LAW." 

/13/  IT WOULD APPEAR THAT THE SAME CONCLUSIONS COULD HAVE BEEN
REACHED UNDER EQUITY RULE 23 AND THE LAW AND EQUITY ACT OF 1915, ACT OF
MARCH 3, 1915, 38 STAT. 956.  SEE SOUTHERN R. CO. V. CITY OF GREENWOOD,
40 F.2D 679 (D.C.W.D.S.C. 1928); 2 J.MOORE, FEDERAL PRACTICE PARA 2.05
(2D ED. 1967).  RULE 23 PROVIDED: 

"IF IN A SUIT IN EQUITY A MATTER ORDINARILY DETERMINABLE AT LAW
ARISES, SUCH MATTER SHALL BE DETERMINED IN THAT SUIT ACCORDING TO THE
PRINCIPLES APPLICABLE, WITHOUT SENDING THE CASE OR QUESTION TO THE LAW
SIDE OF THE COURT." 

/14/  FARMERS CO-OPERATIVE OIL CO. V. SOCONY-VACUUM OIL CO., 43
F.SUPP.  735 (D.C.N.D. IOWA 1942). 

/15/  OTHER EQUITABLE DEVICES ARE USED UNDER THE RULES WITHOUT
DEPRIVING THE PARTIES EMPLOYING THEM OF THE RIGHT TO A JURY TRIAL ON
LEGAL ISSUES.  FOR EXAMPLE, ALTHOUGH THE RIGHT TO INTERVENE MAY IN SOME
CASES BE LIMITED, UNITED STATES FOR THE USE AND BENEFIT OF BROWNE &
BRYAN LUMBER CO. V. MASSACHUSETTS BONDING & INS. CO., 303 F.2D 823
(C.A.2D CIR. 1962); DICKINSON V. BURNHAM, 197 F.2D 973 (C.A.2D CIR.),
CERT. DENIED, 344 U.S. 875 (1952), WHEN INTERVENTION IS PERMITTED
GENERALLY, THE INTERVENOR HAS A RIGHT TO A JURY TRIAL ON ANY LEGAL
ISSUES HE PRESENTS.  SEE 3B J.MOORE, FEDERAL PRACTICE PARA. 24.16(7)
(2D 3D.  1969); 5 ID., PARA. 38.38(3).  A SIMILAR DEVELOPMENT SEEMS TO
BE TAKING PLACE IN THE LOWER COURTS IN INTERPLEADER ACTIONS.  BEFORE
MERGER INTERPLEADER ACTIONS LAY ONLY IN EQUITY, AND THERE WAS NO RIGHT
TO A JURY EVEN ON ISSUES THAT MIGHT, UNDER OTHER CIRCUMSTANCES, HAVE
BEEN TRIED TO A JURY.  LIBERTY OIL CO. V. CONDON NAT. BANK, 260 U.S.
235 (1922).  THIS VIEW CONTINUED FOR SOME TIME AFTER MERGER, SEE BYNUM
V. PRUDENTIAL LIFE INS. CO., 7 F.R.D. 585 (D.C.E.D.S.C. 1947), BUT
NUMBEROUS COURTS AND COMMENTATIORS HAVE NOW COME TO THE CONCLUSION THAT
THE RIGHT TO A JURY SHOULD NOT TURN ON HOW THE PARTIES HAPPEN TO BE
BROUGHT INTO COURT.  SEE PAN AMERICAN FIRE & CAS. CO. V. REVERE, 188
F.SUPP.  474 (D.C.E.D. LA. 1960); SAVANNAH BANK & TRUST CO. V. BLOCK,
175 F.SUPP.  798 (D.C.S.D. GA. 1959); WESTINGHOUSE ELEC.  CORP.  V.
UNITED ELEC.  RADIO & MACH. WORKERS OF AMERICA, 99 F.SUPP.  597
(D.C.W.D. PA. 1951); JOHN HANCOCK MUT. LIFE INS. CO. V. YARROW, 95
F.SUPP.  185 (D.C.E.D. PA. 1951); 2 W.BARRON & A.HOLTZOFF, FEDERAL
PRACTICE AND PROCEDURE 556 (WRIGHT ED. 1961); 3 A J.MOORE, FEDERAL
PRACTICE PARA. 22.14(4) (2D ED. 1969).  BUT SEE PENNSYLVANIA FIRE INS.
CO. V. AMERICAN AIRLINES, INC., 180 F.SUPP.  239 (D.C.E.D.N.Y. 1960);
LIBERTY NAT. LIFE INS. CO. V. BROWN, 119 F.SUPP.  920 (D.C.M.D. ALA.
1954). 

MR. JUSTICE STEWART, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

IN HOLDING AS IT DOES THAT THE PLAINTIFF IN A SHAREHOLDER'S
DERIVATIVE SUIT IS CONSTITUTIONALLY ENTITLED TO A JURY TRIAL, THE COURT
TODAY SEEMS TO RELY UPON SOME SORT OF ILL-DEFINED CONBINATION OF THE
SEVENTH AMENDMENT AND THE FEDERAL RULES OF CIVIL PROCEDURE.  SOMEHOW
THE AMENDMENT AND THE RULES MAGICALLY INTERACT TO DO WHAT EACH
SEPARATELY WAS EXPRESSLY INTENDED NOT TO DO, NAMELY, TO ENLARGE THE
RIGHT TO A JURY TRIAL IN CIVIL ACTIONS BROUGHT IN THE COURTS OF THE
UNITED STATES. 

THE SEVENTH AMENDMENT, BY ITS TERMS, DOES NOT EXTEND, BUT MERELY
PRESERVES THE RIGHT TO A JURY TRIAL "(IN SUITS AT COMMON LAW."  ALL
AGREE THAT THIS MEANS THE REACH OF THE AMENDMENT IS LIMITED TO THOSE
ACTIONS THAT WERE TRIED TO THE JURY IN 1791 WHEN THE AMENDMENT WAS
ADOPTED.  /1/  SUITS IN EQUITY, WHICH WERE HISTORICALLY TRIED TO THE
COURT, WERE THEREFORE UNAFFECTED BY IT.  SIMILARLY, RULE 38 OF THE
FEDERAL RULES HAS NO BEARING ON THE RIGHT TO A JURY TRIAL IN SUITS IN
EQUITY, FOR IT SIMPLY PRESERVES INVIOLATE "(THE RIGHT OF TRIAL BY JURY
AS DECLARED BY THE SEVENTH AMENDMENT."  THUS THIS RULE, LIKE THE
AMENDMENT ITSELF, NEITHER RESTRICTS NOR ENLARGES THE RIGHT TO JURY
TRIAL.  /2/  INDEED NOTHING IN THE FEDERAL RULES CAN RIGHTLY BE
CONSTRUED TO ENLARGE THE RIGHT OF JURY TRIAL, FOR IN THE LEGISLATION
AUTHORIZING THE RULES, CONGRESS EXPRESSLY PROVIDED THAT THEY "SHALL
NEITHER ABRIDGE, ENLARGE, NOR MODIFY THE SUBSTANTIVE RIGHTS OF ANY
LITIGANT."  48 STAT. 1064.  SEE 28 U.S.C. 2072.  I TAKE THIS PLAIN,
SIMPLE, AND STRAIGHTFORWARD LANGUAGE TO MEAN THAT AFTER THE
PROMULGATION OF THE FEDERAL RULES, AS BEFORE, THE CONSTITUTIONAL RIGHT
TO A JURY TRIAL ATTACHES ONLY TO SUITS AT COMMON LAW.  SO, APPARENTLY,
HAS EVERY FEDERAL COURT THAT HAS DISCUSSED THE ISSUE.  /3/  SINCE, AS
THE COURT CONDEDES, A SHAREHOLDER'S DERIVATIVE SUIT COULD BE BROUGHT
ONLY IN EQUITY,IT WOULD SEEM TO ME TO FOLLOW BY THE MOST ELEMENTARY
LOGIC THAT IN SUCH SUITS THERE IS NO CONSTITUTIONAL RIGHT TO A TRIAL BY
JURY.  /4/  TODAY THE COURT TOSSES ASIDE HISTORY, LOGIC, AND OVER 100
YEARS OF FIRM PRECEDENT TO HOLD THAT THE PLAINTIFF IN A SHAREHOLDER'S
DERIVATIVE SUIT DOES INDEED HAVE A CONSTITUTIONAL RIGHT TO A TRIAL BY
JURY.  THIS HOLDING HAS A QUESTIONABLE BASIS IN POLICY /5/  AND NO
BASIS WHATEVER IN THE CONSTITUTION. 

THE COURT BEGINS BY ASSUMING THE "DUAL NATURE" OF THE SHAREHOLDER'S
ACTION.  WHILE THE PLAINTIFF'S RIGHT TO GET INTO COURT AT ALL IS
CONCEDED TO BE EQUITABLE, ONCE HE IS THERE THE COURT SAYS HIS CLAIM IS
TO BE VIEWED AS THOUGH IT WERE THE CLAIM OF THE CORPORATION ITSELF.  IF
THE CORPORATION WOULD HAVE BEEN ENTITLED TO A JURY TRIAL ON SUCH A
CLAIM, THEN, IT IS SAID, SO WOULD THE SHARHOLDER.  THIS
CONCSPTUALIZATION IS WITHOUT ANY HISTORICAL BASIS.  FOR THE FACT IS
THAT A SHAREHOLDER'S SUIT WAS NOT ORIGINALLY VIEWED IN THIS COUNTRY, OR
IN ENGLAND, AS A SUIT TO ENFORCE A CORPORATE CAUSE OF ACTION.  RATHER,
THE SHAREHOLDER'S SUIT WAS INITIALLY PERMITTED ONLY AGAINST THE
MANAGERS OF THE CORPORATION-- NOT THIRD PARTIES-- AND IT WAS CONCEIVED
OF AS AN EQUITABLE ACTION TO ENFORCE THE RIGHT OF A BENEFICIARY AGAINST
HIS TRUSTEE.  /6/  THE SHAREHOLDER WAS NOT, THEREFORE, IN COURT TO
ENFORCE INDIRECTLY THE CORPORATE RIGHT OF ACTION, BUT TO ENFORCE
DIRECTLY HIS OWN EQUITABLE RIGHT OF ACTION AGAINST AN UNFAITHFUL
FIDUCIARY.  LATER THE RIGHTS OF THE SHAREHOLDER WERE ENLARGED TO
ENCOMPASS SUITS AGAINST THIRD PARTIES HARMING THE CORPORATION, BUT "THE
POSTULATE 'CORPORATE CAUSE OF ACTION' HAS NEVER BEEN THOUGHT TO
DESCRIBE AN ACTUAL HISTORICAL CLASS OF SUIT WHICH WAS RECOGNIZED BY
COURTS OF LAW."  /7/  INDEED THE COMMENTATORS, INCLUDING THOSE CITED BY
THE COURT AS POSTULATING THE ANALYTIC DUALITY OF THE SHAREHOLDER'S
DERIVATIVE SUIT, RECOGNIZE THAT HISTORICALLY THE SUIT HAS IN PRACTICE
ALWAYS BEEN TREATED AS A SINGLE CAUSE TRIED EXCLUSIVELY IN EQUITY. 
THEY AGREE THAT THERE IS THEREFORE NO CONSTITUIONAL RIGHT TO A JURY
TRIAL EVEN WHERE THERE MIGHT HAVE BEEN ONE HAD THE CORPORATION ITSELF
BROUGHT THE SUIT.  /8/ 

THIS HAS BEEN NOT SIMPLY THE "GENERAL" OR "PREVAILING" VIEW IN THE
FEDERAL COURTS AS THE COURT SAYS, BUT THE UNANIMOUS VIEW WITH THE
SINGLE EXCEPTION OF THE NINTH CIRCUIT'S 1963 DECISION IN DEPINTO V.
PROVIDENT SECURITY LIFE INS. CO., 323 F.2D 826, A DECISION THAT HAS
SINCE BEEN FOLLOWED BY NO COURT UNTIL THE PRESENT CASE. 

THE COURT WOULD HAVE US DISCOUNT ALL THOSE DECISIONS RENDERED BEFORE
1938, WHEN THE FEDERAL RULES OF CIVIL PROCEDURE WERE ADOPTED, BECAUSE
IT SAYS THAT BEFORE THE PROMULGATION OF THE RULES, "(PURELY PROCEDURAL
IMPEDIMENTS" SOMEHOW BLOCKED THE EXERCISE OF A CONSTITUTIONAL RIGHT. 
IN ITSELF THIS WOULD SEEM A RATHER SHAKY PREMISE UPON WHICH TO BUILD AN
ARGUMENT.  BUT THE COURT'S POSITION IS STILL FURTHER WEAKENED BY THE
FACT THAT ANY "(PURELY PROCEDURAL IMPEDIMENTS" TO A JURY TRIAL IN A
DERIVATIVE SUIT WERE ELIMINATED, NOT IN 1938, BUT AT LEAST AS EARLY AS
1912.  FOR RULE 23 OF THE EQUITY RULES OF THAT YEAR PROVIDED THAT IF A
"MATTER ORDINARILY DETERMINABLE AT LAW" AROSE IN AN EQUITY SUIT IT
SHOULD "BE DETERMINED IN THAT SUIT ACCORDING TO THE PRINCIPLES
APPLICABLE, WITHOUT SENDING THE CASE OR QUESTION TO THE LAW SIDE OF THE
COURT."  226 U.S. 654.  THESE APPLICABLE PRINCIPLES INCLUDED THE RIGHT
OF JURY TRIAL.  /6/  CONSEQUENTLY, WHEN THE COURT SAID IN UNITED COPPER
CO. V. AMALGAMATED COPPER CO., 244 U.S. 261, 264, THAT "IT IS CLEAR"
THAT THE REMEDY OF A STOCKHOLDER SEEKING TO ENFORCE THE RIGHTS OF A
CORPORATION-- WHATEVER THEIR NATURE-- IS NOT IN LAW BUT IN EQUITY, IT
WAS NOT BECAUSE THERE WERE "PROCEDURAL IMPEDIMENTS" TO A JURY TRIAL ON
ANY "LEGAL ISSUES."  RATHER, IT WAS BECAUSE THE SUIT ITSELF WAS
CONCEIVED OF AS A WHOLLY EQUITABLE CAUSE OF ACTION. 

THIS WAS ALSO TRUE IN FLEITMANN V. WELSBACH STREET LIGHTING CO., 240
U.S. 27, ON WHICH THE COURT SO HEAVILY RELIES EVEN THOUGH IT WAS A PRE
FEDERAL-RULES CASE.  IN FLEITMANN THE PLAINTIFF SUED DERIVATIVELY TO
ENFORCE A CORPORATE RIGHT OF ACTION FOR TREBLE DAMAGES UNDER THE
ANTITRUST LAWS.  TREBLE DAMAGES WERE CONSIDERED PUNITIVE, AND THE
STATUTE WAS READ TO IMPLY A RIGHT IN THE DEFENDANT TO A JURY TRIAL.  IN
HIS OPINION FOR THE COURT, MR. JUSTICE HOLMES RECOGNIZED THE POTENTIAL
FOR ABUSE:  DERIVATIVE RATHER THAN CORPORATE ACTIONS COULD BE BROUGHT
IN ORDER TO DEPRIVE THE DEFENDANT OF THIS RIGHT TO A JURY TIRAL.  THE
COURT'S SOLUTION WAS TO DISMISS THE BILL BECAUSE THE ANTITRUST STATUTE
"SHOULD NOT BE READ AS ATTEMPTING TO AUTHORIZE LIABILITY TO BE ENFORCED
OTHERWISE THAN THROUGH THE VERDICT OF A JURY IN A COURT OF COMMON
LAW."  ID., AT 29.  I DO NOT SEE HOW THE COURT TODAY CAN DRAW
SUSTENANCE FROM THIS DECISION.  RATHER, THE FLEITMANN CASE SEEMS TO ME
TO STAND FOR A PROPOSITION DIAMETRICALLY OPPOSED TO THAT WHICH THE
COURT SEEKS TO ESTABLISH, NAMELY, THE PROPOSITION THAT BECAUSE A
DERIVATIVE ACTION IN WHOLLY EQUITABLE, THERE IS NO RIGHT TO A JURY
TRIAL.  THE COURT IN FLEITMANN SIMPLY HELD THAT SINCE THERE WAS A
STATUTORY RIGHT TO A JURY IN ALL ACTIONS FOR TREBLE DAMAGES UNDER THE
ANTITRUST LAWS, A DERIVATIVE SUIT SEEKING SUCH DAMAGES COULD NOT BE
MAINTAINED.  THUS THE BILL HAD TO BE DISMISSED.  /10/ 

THESE PRE-1938 CASES, THEN, FIRMLY ESTABLISH THE UNITARY, EQUITABLE
BASIS OF SHAREHOLDERS' DERIVATIVE SUITS AND IN NO WAY SUPPORT THE
COURT'S HOLDING HERE.  BUT, THE COURT SAYS, WHATEVER THE SITUATION MAY
HAVE BEEN BEFORE 1938, THE FEDERAL RULES OF CIVIL PROCEDURE OF THAT
YEAR, AT LEAST AS CONSTRUED IN OUR DECISIONS MORE THAN 20 YEARS LATER
IN BEACON THEATRES, INC. V. WESTOVER, 359 U.S. 500, AND DAIRY QUEEN,
INC. V. WOOD, 369 U.S. 469, IN ANY EVENT REQUIRE THE CONCLUSION REACHED
TODAY.  I CAN FIND NOTHING IN EITHER OF THESE CASES THAT LEADS TO THAT
CONCLUSIONS. 

IN BEACON THEATRES THE PLAINTIFF SOUGHT BOTH AN INJUNCTION
PREVENTING THE DEFENDANT FROM INSTITUTING AN ANTITRUST ACTION AND A
DECLARATORY JUDGMENT THAT CERTAIN MOVING PICTURE DISTRIBUTION CONTRACTS
DID NOT VIOLATE THE ANTITRUST LAWS.  THE DEFENDANT ANSWERED AND
COUNTERCLAIMED FOR TREBLE DAMAGES UNDER THE ANTITRUST LAWS.  HE
DEMANDED A JURY TRIAL ON THE FACTUAL ISSUES RELATING TO HIS
COUNTERCLAIM.  THE DISTRICT COURT HELD THAT EVEN THOUGH THERE WERE
FACTUAL ISSUES COMMON TO BOTH THE COMPLAINT AND THE COUNTERCLAIM, IT
WOULD FIRST HEAR THE PLAINTIFF'S SUIT FOR EQUITABLE RELIEF BEFORE
SUBMITTING THE COUNTERCLAIM TO A JURY.  THE COURT OF APPEALS AFFIRMED,
AND THIS COURT REVERSED, UPON THE GROUND THAT IF THE EQUITABLE CLAIM
WERE TRIED FIRST, THERE MIGHT BE AN ESTOPPEL WHICH WOULD DEFEAT THE
DEFENDANT'S RIGHT TO A FULL JURY TRIAL ON ALL THE FACTUAL ISSUES RAISED
IN THIS COUNTERCLAIM.  SIMILARLY IN DAIRY QUEEN THE COURT SIMPLY HELD
THAT A PLAINTIFF COULD NOT AVOID A JURY TRIAL BY JOINING LEGAL AND
EQUITABLE CAUSES OF ACTION IN ONE COMPLAINT. 

IT IS TRUE THAT IN BEACON THEATRES IT WAS STATED THAT THE 1938 RULES
DID DIMINISH THE SCOPE OF FEDERAL EQUITY JURISDICTION IN CERTAIN
PARTICULARS.  BUT THE COURT'S EFFORT TO FORCE THE FACTS OF THIS CASE
INTO THE MOLD OF BEACON THEATRES AND DAIRY QUEEN SIMPLY DOES NOT
SUCCEED.  THOSE CASES INVOLVED A COMBINATION OF HISTORICALLY SEPARABLE
SUITS, ONE IN LAW AND ONE IN EQUITY.  THEIR FACTS FIT THE PATTERN OF
CASES WHERE, BEFORE THE RULES, THE EQUITY COURT WOULD HAVE DISPOSED OF
THE EQUITABLE CLAIM AND WOULD THEN HAVE EITHER RETAINED JURISDICTION
OVER THE SUIT, DESPITE THE AVAILABILITY OF ADEQUATE LEGAL REMEDIES, OR
ENJOINED A SUBSEQUENT LEGAL ACTION BETWEEN THE SAME PARTIES INVOLVING
THE SAME CONTROVERSY.  /11/ 

BUT THE PRESENT CASE IS NOT ONE INVOLVING TRADITIONALLY EQUITABLE
CLAIMS BY ONE PARTY, AND TRADITIONALLY LEGAL CLAIMS BY THE OTHER.  NOR
IS IT A SUIT IN WHICH THE PLAINTIFF IS ASSERTING A COMBINATION OF LEGAL
AND EQUITABLE CLAIMS.  FOR, AS WE HAVE SEEN, A DERIVATIVE SUIT HAS
ALWAYS BEEN CONCEIVED OF AS A SINGLE, UNITARY, EQUITABLE CAUSE OF
ACTION.  IT IS FOR THIS REASON, AND NOT BECAUSE OF "PROCEDURAL
IMPEDIMENTS," THAT THE COURTS OF EQUITY DID NOT TRANSFER DERIVATIVE
SUITS TO THE LAW SIDE.  IN SHORT, THE CAUSE OF ACTION IS WHOLLY A
CREATURE OF EQUITY.  AND WHATEVER ELSE CAN BE SAID OF BEACON THEATRES
AND DAIRY QUEEN, THEY DID NOT CAST ASIDE ALTOGETHER THE HISTORIC
DIVISION BETWEEN EQUITY AND LAW. 

IF HISTORY IS TO BE SO CAVALIERLY DISMISSED, THE DERIVATIVE SUIT
CAN, OF COURSE, BE ARTIFICALLY BROKEN DOWN INTO SEPARABLE ELEMENTS. 
BUT SO THEN CAN ANY TRADITIONALLY EQUITABLE CAUSE OF ACTION, AND THE
LOGIC OF THE COURT'S POSITION WOULD LEAD TO THE VIRTUAL ELIMINATION OF
ALL EQUITY JURISDICTION.  AN EQUITABLE SUIT FOR AN INJUNCTION, FOR
INSTANCE, OFTEN INVOLVES ISSUES OF FACT WHICH, IF DAMAGES HAD BEEN
SOUGHT, WOULD HAVE BEEN TRIABLE TO A JURY.  DOES THIS MEAN THAT IN A
SUIT ASKING ONLY FOR INJUNCTIVE RELIEF THESE FACTUAL ISSUES MUST BE
TRIED TO THE JURY, WITH THE JUDGE LEFT TO DECIDE ONLY WHETHER, GIVEN
THE JURY'S FINDINGS, AN INJUNCTION IS THE APPROPRIATE REMEDY? 
CERTAINLY THE FEDERAL RULES MAKE IT POSSIBLE TO TRY A SUIT FOR AN
INJUNCTION IN THAT WAY, BUT EVEN MORE CERTAINLY THEY WERE NOT INTENDED
TO HAVE ANY SUCH EFFECT.  YET THE COURT'S APPROACH, IT SEEMS, WOULD
REQUIRE THAT IF ANY "LEGAL ISSUE" PROCEDURALLY COULD BE TRIED TO AJURY,
IT CONSTITUTIONALLY MUST BE TRIED TO A JURY. 

THE FACT IS, OF COURSE, THAT THERE ARE, FOR THE MOST PART, NO SUCH
THINGS AS INHERENTLY "LEGAL ISSUEB" OR INHERENTLY "EQUITABLE ISSUES." 
THERE ARE ONLY FACTUAL ISSUES, AND, "LIKE CHAMELEONS (THEY) TAKE THEIR
COLOR FROM SURROUNDING CIRCUMSTANCES."  /12/  THUS THE COURT'S "NATURE
OF THE ISSUE" APPROACH IS HARDLY MEANINGFUL. 

AS A FINAL GROUND FOR ITS CONCLUSION, THE COURT POINTS TO A SUPPOSED
ANALOGY TO SUITS INVOLVING CLASS ACTIONS.  IT SAYS THAT BEFORE THE
FEDERAL RULES SUCH SUITS WERE CONSIDERED EQUITABLE AND NOT TRIABLE TO A
JURY, BUT THAT SINCE PROMULGATION OF THE RULES THE FEDERAL COURTS HAVE
FOUND THAT "PLAINTIFFS MAY OBTAIN A JURY TRIAL ON ANY LEGAL ISSUES THEY
PRESENT."  OF COURSE THE PLAINTIFF MAY OBTAIN SUCH A TRIAL EVEN IN A
DERIVATIVE SUIT.  NOTHING IN THE CONSTITUTION OR THE RULES PRECLUDES
THE JUDGE FROM GRANTING A JURY TRIAL AS A MATTER OF DISCRETION.  BUT
EVEN IF THE COURT MEANS THAT SOME FEDERAL COURTS HAVE RULED THAT THE
CLASS ACTION PLAINTIFF IN SOME SITUATIONS HAS A CONSTITUTIONAL RIGHT TO
A JURY TRIAL, THE ANALOGY TO DERIVATIVE SUITS IS WHOLLY UNPERSUASIVE. 
FOR IT IS CLEAR THAT THE DRAFTSMEN OF THE FEDERAL RULES INTENDED THAT
RULE 23 AS IT PERTAINED TO CLASS ACTIONS SHOULD BE APPLICABLE, LIKE
OTHER RULES GOVERNING JOINDER OF CLAIMS AND PARTIES, "TO ALL ACTIONS,
WHETHER FORMERLY DENOMINATED LEGAL OR EQUITABLE."  /13/  THIS DOES NOT
MEAN THAT A FORMERLY EQUITABLE ACTION IS TRIABLE TO A JURY SIMPLY
BECAUSE IT IS BROUGHT ON BEHALF OF A CLASS, BUT ONLY THAT A
HISTORICALLY LEGAL CAUSE OF ACTION CAN BE TRIED TO A JURY EVEN IF IT IS
BROUGHT AS A CLASS ACTION.  SINCE A DERIVATIVE SUIT IS HISTORICALLY
WHOLLY A CREATION OF EQUITY, THE CLASS ACTION "ANALOGY" IS IN TRUTH NO
ANALOGY AT ALL. 

THE COURT'S DECISION TODAY CAN PERHAPS BE EXPLAINED AS A REFLECTION
OF AN UNARTICULATED BUT APPARENTLY OVERPOWERING BIAS IN FAVOR OF JURY
TRIALS IN CIVIL ACTIONS.  IT CERTAINLY CANNOT BE EXPLAINED IN TERMS OF
EITHER THE FEDERAL RULES OR THE CONSTITUTION. 

/1/  WHERE A NEW CAUSE OF ACTION IS CREATED BY CONGRESS, AND NOTHING
IS SAID ABOUT HOW IT IS TO BE TRIED, THE JURY TRIAL ISSUE IS DETERMINED
BY FITTING THE CAUSE INTO ITS NEAREST HISTORICAL ANALOGY.  LURIA V.
UNITED STATES, 231 U.S. 9; SEE JAMES, RIGHT TO A JURY TRIAL IN CIVIL
ACTIONS, 72 YALE L.J. 655. 

/2/  SEE, E.G., ETTELSON V. METROPOLITAN LIFE INS. CO., 137 F.2D 62,
65; 5 J.MOORE, FEDERAL PRACTICE PARA. 38.07(1) AND CASES CITED
THEREIN. 

/3/  THE PRINCIPLE THAT THE RULES EFFECTED NO ENLARGEMENT OR
RESTIRCTION OF THE RIGHT OF JURY TRIAL HAS "RECEIVED COMPLETE JUDICIAL
APPROBATION."  5 J.MOORE, FEDERAL PRACTICE PARA. 38.07(1) AND CASES
CITED THEREIN. 

/4/ VIRTUALLY EVERY STATE AND FEDERAL COURT THAT HAS FACED THIS
ISSUE HAS SIMILARLY REASONED TO THE SAME CONCLUSION.  SEE, E.G., GOETZ
V. MANUFACTURERS' & TRADERS' TRUST CO., 154 MISC. 733, 277 N.Y.S. 802
(SUP. CT.); METCALF V. SHAMEL, 166 CAL.APP.2D 789, 333 P.2D 857; LIKEN
V. SHAFFER, 64 F.SUPP.  432; MILLER V. WEIANT, 42 F.SUPP.  760.  THE
EQUITABLE NATURE OF THE DERIVATIVE SUIT HAS BEEN RECOGNIZED IN SEVERAL
DECISIONS OF THIS COURT.  SEE, E.G., COHEN V. BENEFICIAL INDUSTRIAL
LOAN CORP., 337 U.S. 541, 547-548.  IT WAS ALSO REFLECTED IN THE
ADOPTION OF EQUITY RULE 94 IN 1882, AND RULE 27 OF THE EQUITY RULES OF
1912 WHICH ESTABLISHED THE PRECONDITIONS TO BRINGING SHAREHOLDERS'
DERIVATIVE SUITS IN THE FEDERAL COURTS.  THESE RULES ARE THE
FORERUNNERS OF RULE 23(B) OF FED. CIV. PROC. OF 1938, AND OF FED. RULE
CIV. PROC. 23.1 (1966), WHICH NOW CONTROLS THE INITIATION OF SUCH
SUITS.  SEE 3B J.MOORE, FEDERAL PRACTICE PARA. 23.1.15(1). 

/5/  SEE, E.G., J. FRANK, COURTS ON TRIAL 110-111 (1949).  CERTAINLY
THERE IS NO CONSENSUS AMONG COMMENTATORS ON THE DESIRABILITY OF JURY
TRIALS IN CIVIL ACTIONS GENERALLY.  PARTICULARLY WHERE THE ISSUES IN
THE CASE ARE COMPLEX-- AS THEY ARE LIKELY TO BE IN A DERIVATIVE SUIT--
MUCH CAN BE SAID FOR ALLOWING THE COURT DISCRETION TO TRY THE CASE
ITSELF.  SEE DISCUSSION IN 5 J.MOORE, FEDERAL PRACTICE PARA. 38.02(1). 

/6/  ROBINSON V. SMITH, 3 PAIGE CH. 222 (N.Y.); ATTORNEY GENERAL V.
UTICA INS. CO., 2 JOHNS.CH. 371 (N.Y.), DISCUSSED IN PRUNTY, THE
SHAREHOLDERS' DERIVATIVE SUIT:  NOTES ON ITS DERIVATION, 32
N.Y.U.L.REV.  980. 

/7/  NOTE, THE RIGHT TO A JURY TRIAL IN A STOCKHOLDER'S DERIVATIVE
ACTION, 74 YALE L.J. 725, 730. 

/8/  SEE, E.G., N. LATTIN, THE LAW OF CORPORATIONS, C. 8, SEC. 3; 2
G.HORNSTEIN, CORPORATION LAW AND PRACTICE 730; 13 W.FLETCHER,
CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS 5931 (1961 ED.); 5
J.MOORE, FEDERAL PRACTICE PARA. 38.38(4). 

/9/  SEE SOUTHERN R. CO. V. CITY OF GREENWOOD, 40 F.2D 679. 

/10/  MOREOVER, SINCE THE SUIT WAS BROUGHT AFTER THE PROMULGATION OF
EQUITY RULE 23 IT SEEMS EVIDENT THAT HERE, TOO, IT WAS NOT MERELY
"PROCEDURAL IMPEDIMENTS" THAT PREVENTED THE ANTITRUST CLAIM FROM BEING
TRIED TO A JURY, BUT PRESUMABLY THE FACT THAT NO MATTER ARISING IN A
DERIVATIVE SUIT-- WHATEVER ITS "INHERENT NATURE"-- WAS CONSIDERED TO BE
ONE "ORDINARILY DETERMINABLE AT LAW." 

/11/  SEE DISCUSSION IN 74 YALE L.J.,AT 736-737. 

/12/  JAMES, SUPRA, N. 1, AT 692.  AS PROFESSOR MOORE HAS PUT IT,
"WHETHER ISSUES ARE LEGAL OR EQUITABLE MAY, OF COURSE, DEPEND UPON THE
MANNER IN WHICH THEY ARE PRESENTED . . . . "  5 J.MOORE, FEDERAL
PRACTICE PARA. 38.04(1), N. 40.  AND HE, ALONG WITH VIRTUALLY EVERY
OTHER COMMENTATOR, CONCLUDES THAT IF THE ISSUES ARE PRDSENTED IN A
SHAREHOLDER'S DERIVATIVE SUIT THEY ARE EQUITABLE AND THE PLAINTIFF HAS
NO CONSTITUTIONAL RIGHT TO HAVE THEM TRIED BY A JURY.  5 J.MOORE,
FEDERAL PRACTICE PARA. 38.38(4). 

/13/  ORIGINAL COMMITTEE NOTE OF 1937 TO RULE 23.  MOREOVER, AS
PROFESSOR MOORE POINTS OUT, CERTAIN CLASS ACTIONS COULD BE MAINTAINED
AT LAW IN THE FEDERAL COURTS EVEN BEFORE THE FEDERAL RULES.  5 J.MOORE,
FEDERAL PRACTICE PARA. 38.38(2).     WILLIAM E. HAUDEK ARGUED THE CAUSE
FOR PETITIONERS.  WITH HIM ON THE BRIEFS WERE RICHARD M. MEYER AND
STANLEY M. GROSSMAN. 

MARVIN SCHWARTZ ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEFS WERE ROGER L. WALDMAN, WILLIAM J. MANNING, AND E. ROGER FRISCH. 

..END :






















ALABAMA V. FINCH. 396 U.S. 552 


       ALABAMA V. FINCH, SECRETARY OF HEALTH, EDUCATION, AND

           WELFARE, ET AL.

        ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

        NO. 38, ORIG.  DECIDED FEBRUARY 2, 1970 


STATE OF ALABAMA'S MOTION FOR LEAVE TO FILE COMPLAINT INVOKING
COURT'S ORIGINAL JURISDICTION FAILS TO STATE CLAIM WARRANTING EXERCISE
OF SUCH JURISDICTION. 

MOTION DENIED. 

PER CURIAM. 

ON JANUARY 26, 1970, THE PLAINTIFF FILED A MOTION SEEKING LEAVE TO
FILE A COMPLAINT INVOKING THE ORIGINAL JURISDICTION OF THIS COURT
NAMING ROBERT FINCH, AS SECRETARY OF THE DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE, AND JOHN N. MITCHELL, AS ATTORNEY GENERAL OF
THE UNITED STATES, AS DEFENDANTS. 

THE ALLEGED EMERGENT NATURE OF THE CLAIMS FOR RELIEF LED THE COURT
TO GIVE EXPEDITED CONSIDERATION TO THE MOTION AND PROFFERED COMPLAINT
AND, HAVING EXAMINED THE COMPLAINT, WE CONCLUDE IT FAILS TO STATE A
CLAIM AGAINST EITHER OF THE DEFENDANTS WARRANTING THE EXERCISE OF THE
ORIGINAL JURISDICTION OF THIS COURT. 

ACCORDINGLY, THE MOTION FOR LEAVE TO FILE THE SAID COMPLAINT IS
DENIED. 

ALBERT P. BREWER, GOVERNOR OF ALABAMA, DANIEL J. MEADOR, AND MARUY
D. SMITH ON THE MOTION. 
..END :















MISSISSIPPI V. FINCH, 396 U.S. 553 


       MISSISSIPPI V. FINCH, SECRETARY OF HEALTH, EDUCATION, AND

           WELFARE, ET AL.

        ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

        NO. 39, ORIG.  DECIDED FEBRUARY 2, 1970 


STATE OF MISSISSIPPI'S MOTION FOR LEAVE TO FILE COMPLAINT INVOKING
COURT'S ORIGINAL JURISDICTION FAILS TO STATE CLAIM WARRANTING EXERCISE
OF SUCH JURISDICTION. 

MOTION DENIED. 

PER CURIAM. 

ON FEBRUARY 2, 1970, THE PLAINTIFF FILED A MOTION SEEKING LEAVE TO
FILE A COMPLAINT INVOKING THE ORIGINAL JURISDICTION OF THIS COURT
NAMING ROBERT FINCH, INDIVIDUALLY AND AS SECRETARY OF THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE, AND JOHN N. MITCHELL, INDIVIDUALLY AND
AS ATTORNEY GENERAL OF THE UNITED STATES, AS DEFENDANTS. 

THE ALLEGED EMERGENT NATURE OF THE CLAIMS FOR RELIEF LED THE COURT
TO GIVE EXPEDITED CONSIDERATION TO THE MOTION AND PROFFERED COMPLAINT
AND, HAVING EXAMINED THE COMPLAINT, WE CONCLUDE IT FAILS TO STATE A
CLAIM AGAINST EITHER OF THE DEFENDANTS WARR NTING THE EXERCISE OF THE
ORIGINAL JURISDICTION OF THIS COURT. 

ACCORDINGLY, THE MOTION FOR LEAVE TO FILE THE SAID COMPLAINT IS
DENIED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS MOTION. 

JOHN BELL WILLIAMS, GOVERNOR OF MISSISSIPPI, A. F. SUMMER, ATTORNEY
GENERAL, AND WILLIAM A. ALLAIN, ASSISTANT ATTORNEY GENERAL, ON THE
MOTION. 
..END :











JOHNSON V. WASSERMAN, 396 U.S. 554 


       JOHNSON ET AL. V. WASSERMAN, JUDGE, ET AL.

  APPEAL FROM THE SUPREME COURT OF OHIO

        NO. 832.  DECIDED FEBRUARY 2, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

ALVIN A. FEIN, FOR APPELLANTS. 

JOHN T. CORRIGAN AND JOHN L. DOWLING FOR APPELLEES. 
..END :










KIRK V. BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA, 396 U.S.
554 


       KIRK V. BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FIRST

           APPELLATE DISTRICT

        NO. 836.  DECIDED FEBRUARY 2, 1970 


273 CAL.APP.2D 430, 78 CAL.RPTR.  260, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

CHARLES R. B. KIRK, NORMAN DORSEN, CLARK BYSE, AND WILLIAM W. VAN
ALSTYNE FOR APPELLANT. 

THOMAS J. CUNNINGHAM AND DAVID W. LOUISELL FOR APPELLEE. 
..END :







STEIN V. LUKEN, 396 U.S. 555 


       STEIN V. LUKEN ET AL.

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 854.  DECIDED FEBRUARY 2, 1970 


APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR FAILURE TO DOCKET THE CASE WITHIN THE
TIME PRESCRIBED BY RULE 13. 

YALE STEIN, APPELLANT, PRO SE.
..END :













PROVIDENCE & WORCESTER CO. V. UNITED STATES, 396 U.S. 555 


       PROVIDENCE & WORCESTER CO. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK

        NO. 919.  DECIDED FEBRUARY 2, 1970 


300 F.SUPP.  185, AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

HAROLD I. MEYERSON FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
DEPUTY SOLICITOR GENERAL SPRINGER, HOWARD E. SHAPIRO, ROBERT W.
GRINNANE, AND LEONARD S. GOODMAN FOR APPELLEES THE UNITED STATES ET AL.

..END :




TV PIX V. TAYLOR, 396 U.S. 556 


       TV PIX, INC., ET AL. V. TAYLOR ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

   DISTRICT OF NEVADA

        NO. 214.  DECIDED FEBRUARY 2, 1970 


304 F.SUPP.  459, AFFIRMED. 

PER CURIAM. 

THE MOTION OF THE NATIONAL ASSOCIATION OF REGULATORY UTILITY
COMMISSIONERS FOR LEAVE TO FILE A BRIEF, AS AMICUS CURIAE, IS GRANTED. 
THE MOTION FOR LEAVE TO FILE THE MOTION TO DISMISS OR AFFIRM IS ALSO
GRANTED. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

GEORGE M. MCMILLAN FOR APPELLANTS. 

HARVEY DICKERSON, ATTORNEY GENERAL OF NEVADA, FOR APPELLEES. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY SOLICITOR
GENERAL GRISWOLD AND HENRY GELLER FOR THE UNITED STATES, AND BY PAUL
RODGERS FOR THE NATIONAL ASSOCIATION OF REGULATORY UTILITY
COMMISSIONERS.  E. STRATFORD SMITH AND BRUCE LOVETT FILED A BRIEF FOR
THE NATIONAL CABLE TELEVISION ASSOCIATION, INC., AS AMICUS CURIAE. 
..END :





















FLORIDA V. ALABAMA, 396 U.S. 490 


       FLORIDA V. ALABAMA ET AL.

        ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

        NO. 37, ORIG.  DECIDED JANUARY 28, 1970 


STATE OF FLORIDA'S MOTION FOR LEAVE TO FILE COMPLAINT INVOKING
COURT'S ORIGINAL JURISDICTION FAILS TO STATE CLAIM WARRANTING EXERCISE
OF SUCH JURISDICTION. 

MOTION DENIED. 

PER CURIAM. 

ON JANUARY 23, 1970, THE PLAINTIFF FILED A MOTION FOR LEAVE TO FILE
A COMPLAINT INVOKING THE ORIGINAL JURISDICTION OF THIS COURT NAMING 49
OTHER STATES AND ROBERT FINCH, AS SECRETARY OF THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE, AS PARTIES DEFENDANT. 

THE ALLEGED EMERGENT NATURE OF THE CLAIMS FOR RELIEF LED THE COURT
TO GIVE EXPEDITED CONSIDERATION TO THE MOTION AND PROFFERED COMPLAINT
AND, HAVING EXAMINED THE COMPLAINT, WE CONCLUDE IT FAILS TO STATE A
CLAIM AGAINST ANY OF THE DEFENDANTS WARRANTING THE EXERCISE OF THE
ORIGINAL JURISDICTION OF THIS COURT. 

ACCORDINGLY, THE MOTION TO ACCELERATE THE TIME FOR RESPONSES TO THE
PROFFERED COMPLAINT AND THE MOTION FOR LEAVE TO FILE THE PROFFERED
COMPLAINT ARE DENIED. 

CLAUDE R. KIRK, JR., GOVERNOR OF FLORIDA, AND GERALD MAGER ON THE
MOTION. 
..END :


















EVANS & ABNEY, 396 U.S. 435 


       EVANS ET AL. V. ABNEY ET AL.

        CERTIORARI TO THE SUPREME COURT OF GEORGIA

        NO. 60.  ARGUED NOVEMBER 12-13, 1969-- DECIDED JANUARY 26,

           1970 


BY HIS 1911 WILL SENATOR BACON CONVEYED A TRACT OF LAND IN MACON TO
THE CITY FOR THE CREATION OF A PARK FOR THE EXCLUSIVE USE OF WHITE
PEOPLE.  THIS COURT HELD, IN EVANS V. NEWTON, 382 U.S. 296, THAT THE
PARK COULD NOT CONTINUE TO BE OPERATED ON A RACIALLY DISCRIMINATORY
BASIS.  THE GEORGIA SUPREME COURT THEN HELD "THAT THE SOLE PURPOSE FOR
WHICH THE TRUST WAS CREATED HAS BECOME IMPOSSIBLE OF ACCOMPLISHMENT AND
HAS BEEN TERMINATED," AND REMANDED THE CASE TO THE TRIAL COURT, WHICH
HELD THE DOCTRINE OF CY PRES TO BE INAPPLICABLE SINCE THE PARK'S
SEGREGATED CHARACTER WAS AN ESSENTIAL AND INSEPARABLE PART OF THE
TESTATOR'S PLAN.  THE TRIAL COURT RULED THAT THE TRUST FA.LED AND THAT
THE PROPERTY REVERTED TO SENATOR BACON'S HEIRS, AND THE GEORGIA SUPREME
COURT AFFIRMED.  HELD: 

1.  THE STATE COURTS DID NO MORE THAN APPLY WELL-SETTLED PRINCIPLES
OF GEORGIA LAW TO DETERMINE THE MEANING AND EFFECT OF A GEORGIA WILL. 
PP. 439-443. 

2.  THE GEORGIA SUPREME COURT'S ACTION DECLARING THE TRUST
TERMINATED DID NOT VIOLATE ANY CONSTITUTIONALLY PROTECTED RIGHTS.  PP.
443-446. 

(A) THE TERMINATION OF THE TRUST WAS NOT THE IMPOSITION OF A DRASTIC
"PENALTY," THE "FORFEITURE" OF THE PARK MERELY BECAUSE OF THE CITY'S
COMPLIANCE WITH THE CONSTITUTIONAL MANDATE OF EVANS V. NEWTION, SUPRA,
BUT WAS THE RESULT OF THE CONSTRUCTION OF SENATOR BACON'S WILL TO THE
EFFECT THAT SENATOR BACON WOULD RATHER HAVE HAD THE TRUST TERMINATED
THAN HAVE HAD THE PARK INTEGRATED.  P. 444. 

(B) THIS IS A CASE WHERE THE RACIAL RESTRICTIONS WERE SOLELY THE
PRODUCT OF THE TESTATOR'S SOCIAL PHILOSOPHY, NOT THAT OF THE STATE OR
ITS AGENTS.  THE DECISION BELOW ELIMINATED DISCRIMINATION AGAINST
NEGROES IN THE PARK BY ELIMINATING THE PARK, A LOSS SHARED EQUALLY BY
BOTH RACES.  SHELLEY V. KRAEMER, 334 U.S. 1, DISTINGUISHED.  P. 445. 

(C) THERE IS NO VIOLATION OF THE FOURTEENTH AMENDMENT WHERE A STATE
COURT APPLIES WITHOUT ANY RACIAL ANIMUS ITS NORMAL PRINCIPLES OF
CONSTRUCTION TO DETERMINE THE TESTATOR'S TRUE INTENT IN ESTABLISHING A
CHARITABLE TRUST AND CONCLUDES, BECAUSE OF NEUTRAL AND
NONDISCRIMINATORY STATE TRUST LAWS, THAT EVERYONE IS TO BE DEPRIVED OF
THE BENEFITS OF THE TRUST.  PP. 445-446. 

(D) THE TRUST "FAILED" UNDER GEORGIA LAW, NOT BECAUSE OF THE
UNSPOKEN PREMISE THAT THE PRESENCE OF NEGROES WOULD DESTROY THE
DESIRABILITY OF THE PART FOR WHITES, BUT BECAUSE THE TESTATOR INTENDED
THAT THE PARK REMAIN FOREVER FOR THE EXCLUSIVE USE OF WHITE PEOPLE.  P.
447. 

224 GA. 826, 165 S.E.2D 160, AFFIRMED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN THIS COURT MUST CONSIDER THE CONSTITUTIONAL IMPLICATIONS
OF THE 1911 WILL OF UNITED STATES SENATOR A. O. BACON OF GEORGIA WHICH
CONVEYED PROPERTY IN TRUST TO SENATOR BACON'S HOME CITY OF MACON FOR
THE CREATION OF A PUBLIC PARK FOR THE EXCLUSIVE USE OF THE WHITE PEOPLE
OF THAT CITY.  AS A RESULT OF OUR EARLIER DECISION IN THIS CASE WHICH
HELD THAT THE PARK, BACONSFIELD, COULD NOT CONTINUE TO BE OPERATED ON A
RACIALLY DISCRIMINATORY BASIS, EVANS V. NEWTON, 382 U.S. 296 (1966),
THE SUPREME COURT OF GEORGIA RULED THAT SENATOR BACON'S INTENTION TO
PROVIDE A PARK FOR WHITES ONLY HAD BECOME IMPOSSIBLE TO FULFILL AND
THAT ACCORDINGLY THE TRUST HAD FAILED AND THE PARKLAND AND OTHER TRUST
PROPERTY HAD REVERTED BY OPERATION OF GEORGIA LAW TO THE HEIRS OF THE
SENATOR.  224 GA. 826, 165 S.E.2D 160 (1968).  PETITIONERS, THE SAME
NEGRO CITIZENS OF MACON, WHO HAVE SOUGHT IN THE COURTS TO INTEGRATE THE
PARK, CONTEND THAT THIS TERMINATION OF THE TRUST VIOLATES THEIR RIGHTS
TO EQUAL PROTECTION AND DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTION INVOLVED. 
394 U.S. 1012 (1969).  FOR THE REASONS TO BE STATED, WE ARE OF THE
OPINION THAT THE JUDGMENT OF THE SUPREME COURT OF GEORGIA SHOULD BE,
AND IT IS, AFFIRMED. 

THE EARLY BACKGROUND OF THIS LITIGATION WAS SUMMARIZED BY MR.
JUSTICE DOUGLAS IN HIS OPINION FOR THE COURT IN EVANS V. NEWTON, 382
U.S.,AT 297-298: 

     "IN 1911 UNITED STATES SENATOR AUGUSTUS O. BACON EXECUTED A

WILL THAT DEVISED TO THE MAYOR AND COUNCIL OF THE CITY OF MACON,

  GEORGIA, A TRACT OF LAND WHICH, AFTER THE DEATH OF THE SENATOR'S

  WIFE AND DAUGHTERS, WAS TO BE USED AS 'A PARK AND PLEASURE

  GROUND' FOR WHITE PEOPLE ONLY, THE SENATOR STATING IN THE WILL

  THAT WHILE HE HAD ONLY THE KINDEST FEELING FOR THE NEGROES HE WAS

  OF THE OPINION THAT 'IN THEIR SOCIAL RELATIONS THE TWO RACES

  (WHITE AND NEGRO) SHOULD BE FOREVER SEPARATE.'  THE WILL PROVIDED

  THAT THE PARK SHOULD BE UNDER THE CONTROL OF A BOARD OF MANAGERS

  OF SEVEN PERSONS, ALL OF WHOM WERE TO BE WHITE.  THE CITY KEPT

  THE PARK SEGREGATED FOR SOME YEARS BUT IN TIME LET NEGROES USE

  IT, TAKING THE POSITION THAT THE THE PARK WAS A PUBLIC FACILITY

  WHICH IT COULD NOT CONSTITUTIONALLY MANAGE AND MAINTAIN ON A

  SEGREGATED BASIS. 

     "THEREUPON, INDIVIDUAL MEMBERS OF THE BOARD OF MANAGERS OF THE

  PARK BROUGHT THIS SUIT IN A STATE COURT AGAINST THE CITY OF MACON

  AND THE TRUSTEES OF CERTAIN RESIDUARY BENEFICIARIES OF SENATOR

  BACON'S ESTATE, ASKING THAT THE CITY BE REMOVED AS TRUSTEE AND

  THAT THE COURT APPOINT NEW TRUSTEES, TO WHOM TITLE TO THE PARK

  WOULD BE TRANSFERRED.  THE CITY ANSWERED, ALLEGING IT COULD NOT

  LEGALLY ENFORCE RACIAL SEGREGATION IN THE PARK.  THE OTHER

  DEFENDANTS ADMITTED THE ALLEGATION AND REQUESTED THAT THE CITY BE

  REMOVED AS TRUSTEE. 

     "SEVERAL NEGRO CITIZENS OF MACON INTERVENED, ALLEGING THAT THE

  RACIAL LIMITATION WAS CONTRARY TO THE LAWS AND PUBLIC POLICY OF

  THE UNITED STATES, AND ASKING THAT THE COURT REFUSE TO APPOINT

  PRIVATE TRUSTEES.  THEREAFTER THE CITY RESIGNED AS TRUSTEE AND

  AMENDED ITS ANSWER ACCORDINGLY.  MOREOVER, OTHER HEIRS OF SENATOR

  BACON INTERVENED AND THEY AND THE DEFENDANTS OTHER THAN CITY

ASKED FOR REVERSION OF THE TRUST PROPERTY TO THE BACON ESTATE IN

  THE EVENT THAT THE PRAYER OF THE PETITION WERE DENIED. 

     "THE GEORGIA COURT ACCEPTED THE RESIGNATION OF THE CITY AS

  TRUSTEE AND APPOINTED THREE INDIVIDUALS AS NEW TRUSTEES, FINDING

  IT UNNECESSARY TO PASS ON THE OTHER CLAIMS OF THE HEIRS.  ON

  APPEAL BY THE NEGRO INTERVENORS, THE SUPREME COURT OF GEORGIA

  AFFIRMED, HOLDING THAT SENATOR BACON HAD THE RIGHT TO GIVE AND

  BEQUEATH HIS PROPERTY TO A LIMITED CLASS, THAT CHARITABLE TRUSTS

  ARE SUBJECT TO SUPERVISION OF A COURT OF EQUITY, AND THAT THE

  POWER TO APPOINT NEW TRUSTEES SO THAT THE PURPOSE OF THE TRUST

WOULD NOT FAIL WAS CLEAR.  220 GA. 280, 138 S.E.2D 573." 

THE COURT IN EVANS V. NEWTON, SUPRA, WENT ON TO REVERSE THE JUDGMENT
OF THE GEORGIA SUPREME COURT AND TO HOLD THAT THE PUBLIC CHARACTER OF
BACONFIELD "REQUIRES THAT IT BE TREATED AS A PUBLIC INSTITUTION SUBJECT
TO THE COMMAND OF THE FOURTEENTH AMENDMENT, REGARDLESS OF WHO NOW HAS
TITLE UNDER STATE LAW."  382 U.S.,AT 302.  THEREAFTER, THE GEORGIA
SUPREME COURT INTERPRETED THIS COURT'S REVERSAL OF ITS DECISION AS
REQUIRING THAT BACONSFIELD BE HENCEFORTH OPERATED ON A
NONDISCRIMINATORY BASIS.  "UNDER THESE CIRCUMSTANCES," THE STATE HIGH
COURT HELD, "WE ARE OF THE OPINION THAT THE SOLE PURPOSE FOR WHICH THE
TRUST WAS CREATED HAS BECOME IMPOSSIBLE OF ACCOMPLISHMENT AND HAS BEEN
TERMINATED."  EVANS V. NEWTON, 221 GA. 870, 871, 148 S.E.2D 329, 330
(1966).  WITHOUT FURTHER ELABORATION OF THIS HOLDING, THE CASE WAS
REMANDED TO THE GEORGIA TRIAL COURT TO CONSIDER THE MOTION OF GUYTON G.
ABNEY AND OTHERS, SUCCESSOR TRUSTEES OF SENATOR BACON'S ESTATE, FOR A
RULING THAT THE TRUST HAD BECOME UNENFORCEABLE AND THAT ACCORDINGLY THE
TRUST PROPERTY HAD REVERTED TO THE BACON ESTATE AND TO CERTAIN NAMED
HEIRS OF THE SENATOR.  THE MOTION WAS OPPOSED BY PETITIONERS AND BY THE
ATTORNEY GENERAL OF GEORGIA, BOTH OF WHOM ARGUED THAT THE TRIAL SHOULD
BE SAVED BY APPLYING THE CY PRES DOCTRINE TO AMEND THE TERMS OF THE
WILL BY STRIKING THE RACIAL RESTRICTIONS AND OPENING BACONSFIELD TO ALL
THE CITIZENS OF MACON WITHOUT REGARD TO RACE OR COLOR.  THE TRIAL
COURT, HOWEVER, REFUSED TO APPLY CY PRES.  IT HELD THAT THE DOCTRINE
WAS INAPPLICABLE BECAUSE THE PARK'S SEGREGATED, WHITES-ONLY CHARACTER
WAS AN ESSENTIAL AND INSEPARABLE PART OF THE TESTATOR'S PLAN.  SINCE
THE "SOLE PURPOSE" OF THE TRUST WAS THUS IN IRRECONCILABLE CONFLICT
WITH THE CONSTITUTIONAL MANDATE EXPRESSED IN OUR OPINION IN EVANS V.
NEWTON, THE TRIAL COURT RULED THAT THE BACONSFIELD TRUST HAD FAILED AND
THAT THE TRUST PROPERTY HAD BY OPERATION OF LAW REVERTED TO THE HEIRS
OF SENATOR BACON.  ON APPEAL, THE SUPREME COURT OF GEORGIA AFFIRMED. 

WE ARE OF THE OPINION THAT IN RULING AS THEY DID THE GEORGIA COURTS
DID NO MORE THAN APPLY WELL-SETTLED GENERAL PRINCIPLES OF GEORGIA LAW
TO DETERMINE THE MEANING AND EFFECT OF A GEORGIA WILL.  AT THE TIME
SENATOR BACON MADE HIS WILL GEORGIA CITIES AND TOWNS WERE, AND THEY
STILL ARE, AUTHORIZED TO ACCEPT DEVISES OF PROPERTY FOR THE
ESTABLISHMENT AND PRESERVATION OF "PARKS AND PLEASURE GROUNDS" AND TO
HOLD THE PROPERTY THUS RECEIVED IN CHARITABLE TRUST FOR THE EXCLUSIVE
BENEFIT OF THE CLASS OF PERSONS NAMED BY THE TESTATOR.  GA. CODE ANN.,
C. 69-5 (1967); GA. CODE ANN. SECS. 108-203, 108-207 (1959).  THESE
PROVISIONS OF THE GEORGIA CODE EXPLICITLY AUTHORIZED THE TESTATOR TO
INCLUDE, IF HE SHOULD CHOOSE, RACIAL RESTRICTIONS SUCH AS THOSE FOUND
IN SENATOR BACON'S WILL.  THE CITY ACCEPTED THE TRUST WITH THESE
RESTRICTIONS IN IT.  WHEN THIS COURT IN EVANS V. NEWTON, SUPRA, HELD
THAT THE CONTINUED OPERATION OF BACONSFIELD AS A SEGREGATED PARK WAS
UNCONSTITUTIONAL, THE PARTICULAR PURPOSE OF THE BACONSFIELD TRUST AS
STATED IN THE WILL FAILED UNDER GEORGIA LAW.  THE QUESTION THEN
PROPERLY BEFORE THE GEORGIA SUPREME COURT WAS WHETHER AS A MATTER OF
STATE LAW THE DOCTRINE OF CY PRES SHOULD BE APPLIED TO PREVENT THE
TRUST ITSELF FROM FAILING.  PETITIONERS URGED THAT THE CY PRES DOCTRINE
ALLOWED THE GEORGIA COURTS TO STRIKE THE RACIALLY RESTRICTIVE CLAUSES
IN BACON'S WILL SO THAT THE TERMS OF THE TRUST COULD BE FULFILLED
WITHOUT VIOLATING THE CONSTITUTION. 

THE GEORGIA CY PRES STATUTES UPON WHICH PETITIONERS RELIED PROVIDE: 

     "WHEN A VALID CHARITABLE BEQUEST IS INCAPABLE FOR SOME REASON

  OF EXECUTION IN THE EXACT MANNER PROVIDED BY THE TESTATOR, DONOR,

  OR FOUNDER, A COURT OF EQUITY WILL CARRY IT INTO EFFECT IN SUCH A

  WAY AS WILL AS NEARLY AS POSSIBLE EFFECTUATE HIS INTENTION."  GA.

  CODE ANN. SEC. 108-202 (1959). 

     "A DEVISE OR BEQUEST TO A CHARITABLE USE WILL BE SUSTAINED AND

  CARRIED OUT IN THIS STATE; AND IN ALL CASES WHERE THERE IS A

  GENERAL INTENTION MANIFESTED BY THE TESTATOR TO EFFECT A CERTAIN

  PURPOSE, AND THE PARTICULAR MODE IN WHICH HE DIRECTS IT TO BE

  DONE SHALL FAIL FROM ANY CAUSE, A COURT OF CHANCERY MAY, BY

  APPROXIMATION, EFFECTUATE THE PURPOSE IN A MANNER MOST SIMILAR TO

  THAT INDICATED BY THE TESTATOR."  GA. CODE ANN. SEC. 113-185

  (1959). 

THE GEORGIA COURTS HAVE HELD THAT THE FUNDAMENTAL PURPOSE OF THESE CY
PRES PROVISIONS IS TO ALLOW THE COURT TO CARRY OUT THE GENERAL
CHARITABLE INTENT OF THE TESTATOR WHERE THIS INTENT MIGHT OTHERWISE BE
THWARTED BY THE IMPOSSIBILITY OF THE PARTICULAR PLAN OR SCHEME PROVIDED
BY THE TESTATOR.  MOSS V. YOUNGBLOOD, 187 GA. 188, 200 S.E. 689
(1938).  BUT THIS UNDERLYING LOGIC OF THE CY PRES DOCTRINE IMPLIES THAT
THERE IS A CERTAIN CLASS OF CASES IN WHICH THE DOCTRINE CANNOT BE
APPLIED.  PROFESSOR SCOTT IN HIS TREATISE ON TRUSTS STATES THIS
LIMITATION ON THE DOCTRINE OF CY PRES WHICH IS COMMON TO MANY STATES
/1/  AS FOLLOWS: 

     "IT IS NOT TRUE THAT A CHARITABLE TRUST NEVER FAILS WHERE IT
IS

  IMPOSSIBLE TO CARRY OUT THE PARTICULAR PURPOSE OF THE TESTATOR. 

  IN SOME CASES . . . IT APPEARS THAT THE ACCOMPLISHMENT OF THE

  PARTICULAR PURPOSE AND ONLY THAT PURPOSE WAS DESIRED BY THE

  TESTATOR AND THAT HE HAD NO MORE GENERAL CHARITABLE INTENT AND

  THAT HE WOULD PRESUMABLY HAVE PREFERRED TO HAVE THE WHOLE TRUST

  FAIL IF THE PARTICULAR PURPOSE IS IMPOSSIBLE OF ACCOMPLISHMENT. 

  IN SUCH A CASE THE CY PRES DOCTRINE IS NOT APPLICABLE."  4

  A.SCOTT, THE LAW OF TRUSTS SEC. 399, P. 3085 (3D ED. 1967). 

IN THIS CASE, SENATOR BACON PROVIDED AN UNUSUAL AMOUNT OF
INFORMATION IN HIS WILL FROM WHICH THE GEORGIA COURTS COULD DETERMINE
THE LIMITS OF HIS CHARITABLE PURPOSE.  IMMEDIATELY AFTER SPECIFYING
THAT THE PARK SHOULD BE FOR "THE SOLE, PERPETUAL AND UNENDING, USE,
BENEFIT AND ENJOYMENT OF THE WHITE WOMEN, WHITE GIRLS, WHITE BOYS AND
WHITE CHILDREN OF THE CITY OF MACON," THE SENATOR STATED THAT "THE SAID
PROPERTY UNDER NO CIRCUMSTANCES . . . (IS) TO BE . . . AT ANY TIME FOR
ANY REASON DEVOTED TO ANY OTHER PURPOSE OR USE EXCEPTING SO FAR AS
HEREIN SPECIFYING AUTHORIZED."  AND THE SENATOR CONTINUED: 

     "I TAKE OCCASION TO SAY THAT IN LIMITING THE USE AND ENJOYMENT

  OF THIS PROPERTY PERPETUALLY TO WHITE PEOPLE, I AM NOT INFLUENCED

  BY ANY UNKINDNESS OF FEELING OR WANT OF CONSIDERATION FOR THE

  NEGROES, OR COLORED PEOPLE.  ON THE CONTRARY I HAVE FOR THEM THE

  KINDEST FEELING, AND FOR MANY OF THEM ESTEEM AND REGARD, WHILE

  FOR SOME OF THEM I HAVE SINCERE PERSONAL AFFECTION. 

      "I AM, HOWEVER, WITHOUT HESITATION IN THE OPINION THAT IN
THEIR

  SOCIAL RELATIONS THE TWO RACES . . . SHOULD BE FOREVER SEPARATE

  AND T,AT THEY SHOULD NOT HAVE PLEASURE OR RECREATION GROUNDS TO

  BE USED OR ENJOYED, TOGETHER AND IN COMMON." 

THE GEORGIA COURTS, CONSTRUING SENATOR BACON'S WILL AS A WHOLE,
YERBEY V. CHANDLER, 194 GA. 263, 21 S.E.2D 636 (1942), CONCLUDED FROM
THIS AND OTHER LANGUAGE IN THE WILL THAT THE SENATOR'S CHARITABLE
INTENT WAS NOT "GENERAL" BUT EXTENDED ONLY TO THE ESTABLISHMENT OF A
SEGREGATED PARK FOR THE BENEFIT OF WHITE PEOPLE.  THE GEORGIA TRIAL
COURT FOUND THAT "SENATOR BACON COUNT NOT HAVE USED LANGUAGE MORE
CLEARLY INDICATING HIS INTENT THAT THE BENEFITS OF BACONSFIELD SHOULD
BE EXTENDED TO WHITE PERSONS ONLY, OR MORE CLEARLY INDICATING THAT THIS
LIMITATION WAS AN ESSENTIAL AND INDISPENSABLE PART OF HIS PLAN FOR
BACONSFIELD."  APP. 519.  SINCE RACIAL SEPARATION WAS FOUND TO BE AN
INSEPARABLE PART OF THE TESTATOR'S INTENT, THE GEORGIA COURTS HELD THAT
THE STATE'S CY PRES DOCTRINE COULD NOT BE USED TO ALTER THE WILL TO
PERMIT RACIAL INTEGRATION.  SEE FORD V. THOMAS, 111 GA. 493, 36 S.E.
841 (1900); ADAMS V. BASS, 18 GA. 130 (1855).  THE BACONSFIELD TRUST
WAS THEREFORE HELD TO HAVE FAILED, AND, UNDER GEORGIA LAW, "(WHERE A
TRUST IS EXPRESSLY CREATED, BUT (ITS) USES . . . FAIL FROM ANY CAUSE, A
RESULTING TRUST IS IMPLIED FOR THE BENEFIT OF THE GRANTOR, OR TESTATOR,
OR HIS HEIRS."  GA. CODE ANN. SEC. 108-106(4) (1959).  /2/  THE GEORGIA
COURTS CONCLUDED, IN EFFECT, THAT SENATOR BACON WOULD HAVE RATHER HAD
THE WHOLE TRUST FAIL THAN HAVE BACONSFIELD INTEGRATED. 

WHEN A CITY PARK IS DESTROYED BECAUSE THE CONSTITUTION REQUIRES IT
TO BE INTEGRATED, THERE IS REASON FOR EVERYONE TO BE DISHEARTENED.  WE
AGREE WITH PETITIONERS THAT IN SUCH A CASE IT IS NOT ENOUGH TO FIND
THAT THE STATE COURT'S RESULT WAS REACHED THROUGH THE APPLICATION OF
ESTABLISHED PRINICPLES OF STATE LAW.  NO STATE LAW OR ACT CAN PREVAIL
IN THE FACE OF CONTRARY FEDERAL LAW, AND THE FEDERAL COURTS MUST SEARCH
OUT THE FACT AND TRUTH OF ANY PROCEEDING OR TRANSACTION TO DETERMINE IF
THE CONSTITUTION HAS BEEN VIOLATED.  PRESBYTERIAN CHURCH V. HULL
CHURCH, 393 U.S. 440 (1969); NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254 (1964).  HERE, HOWEVER, THE ACTION OF THE GEORGIA SUPREME COURT
DECLARING THE BACONSFIELD TRUST TERMINATED PRESENTS NO VIOLATION OF
CONSTITUTIONALLY PROTECTED RIGHTS, AND ANY HARSHNESS THAT MAY HAVE
RESULTED FROM THE STATE COURT'S DECISION CAN BE ATTRIBUTED SOLELY TO
ITS INTENTION TO EFFECTUATE AS NEARLY AS POSSIBLE THE EXPLICIT TERMS OF
SENATOR BACON'S WILL. 

PETITIONERS FIRST ARGUE THAT THE ACTION OF THE GEORGIA COURT
VIOLATES THE UNITED STATES CONSTITUTION IN THAT IT IMPOSES A DRASTIC
"PENALTY," THE "FORFEITURE" OF THE PARK, MERELY BECAUSE OF THE CITY'S
COMPLIANCE WITH THE CONSTITUTIONAL MANDATE EXPRESSED BY THIS COURT IN
EVANS V. NEWTON.  OF COURSE, EVANS V. NEWTON DID NOT SPEAK TO THE
PROBLEM OF WHETHER BACONSFIELD SHOULD OR COULD CONTINUE TO OPERATE AS A
PARK; IT HELD ONLY THAT ITS CONTINUED OPERATION AS A PARK HAD TO BE
WITHOUT RACIAL DISCRIMINATION.  BUT PETITIONERS NOW WANT TO EXTEND THAT
HOLDING TO FORBID THE GEORGIA COURTS FROM CLOSING BACONSFIELD ON THE
GROUND THAT SUCH A CLOSING WOULD PENALIZE THE CITY AND ITS CITIZENS FOR
COMPLYING WITH THE CONSTITUTION.  WE THINK, HOWEVER, THAT THE WILL OF
SENATOR BACON AND GEORGIA LAW PROVIDE ALL THE JUSTIFICATION NECESSARY
FOR IMPOSING SUCH A "PENALTY."  THE CONSTITUTION OF WILLS IS
ESSENTIALLY A STATE-LAW QUESTION, LYETH V. HOEY, 305 U.S. 188 (1938),
AND IN THIS CASE THE GEORGIA SUPREME COURT, AS WE READ ITS OPINION,
INTERPRETED SENATOR BACON'S WILL AS EMBODYING A PREFERENCE FOR
TERMINATION OF THE PARK RATHER THAN ITS INTEGRATION.  GIVEN THIS, THE
GEORGIA COURT HAD NO ALTERNATIVE UNDER ITS RELEVANT TRUST LAWS, WHICH
ARE LONG STANDING AND NEUTRAL WITH REGARD TO RACE, BUT TO END THE
BACONSFIELD TRUST AND RETURN THE PROPERTY TO THE SENATOR'S HEIRS. 

A SECOND ARGUMENT FOR PETITIONERS STRESSES THE SIMILARITIES BETWEEN
THIS CASE AND THE CASE IN WHICH A CITY HOLDS AN ABSOLUTE FEE SIMPLE
TITLE TO A PUBLIC PARK AND THEN CLOSES THAT PARK OF ITS OWN ACCORD
SOLELY TO AVOID THE EFFECT OF A PRIOR COURT ORDER DIRECTING THAT THE
PARK BE INTEGRATED AS THE FOURTEENTH AMENDMENT COMMANDS.  YET, ASSUMING
ARGUENDO THAT THE CLOSING OF THE PARK WOULD IN THOSE CIRCUMSTANCES
VIOLATE THE EQUAL PROTECTION CLAUSE, THAT CASE WOULD BE CLEARLY
DISTINGUISHABLE FROM THE CASE AT BAR BECAUSE THERE IT IS THE STATE AND
NOT A PRIVATE PARTY WHICH IS INJECTING THE RACIALLY DISCRIMINATORY
MOTIVATION.  IN THE CASE AT BAR THERE IS NOT THE SLIGHTEST INDICATION
THAT ANY OF THE GEORGIA JUDGES INVOLVED WERE MOTIVATED BY RACIAL ANIMUS
OR DISCRIMINATORY INTENT OF ANY SORT IN CONSTRUING AND ENFORCING
SENATOR BACON'S WILL.  NOR IS THERE ANY INDICATION THAT SENATOR BACON
IN DRAWING UP HIS WILL WAS PERSUADED OR INDUCED TO INCLUDE RACIAL
RESTRICTIONS BY THE FACT THAT SUCH RESTRICTIONS WERE PERMITTED BY THE
GEORGIA TRUST STATUTES.  SUPRA, AT 439-440.  ON THE CONTRARY, THE
LANGUAGE OF THE SENATOR'S WILL SHOWS THAT THE RACIAL RESTRICTIONS WERE
SOLELY THE PRODUCT OF THE TESTATOR'S OWN FULL-BLOWN SOCIAL PHILOSOPHY. 
SIMILARLY, THE SITUATION PRESENTED IN THIS CASE IS ALSO EASILY
DISTINGUISHABLE FROM THAT PRESENTED IN SHELLEY V. KRAEMER, 334 U.S. 1
(1948), WHERE WE HELD UNCONSTITUTIONAL STATE JUDICIAL ACTION WHICH HAD
AFFIRMATIVELY ENFORCED A PRIVATE SCHEME OF DISCRIMINATION AGAINST
NEGROES.  HERE THE EFFECT OF THE GEORGIA DECISION ELIMINATED ALL
DISCRIMINATION AGAINST NEGROES IN THE PARK BY ELIMINATING THE PARK
ITSELF, AND THE TERMINATION OF THE PARK WAS A LOSS SHARED EQUALLY BY
THE WHITE AND NEGRO CITIZENS OF MACON SINCE BOTH RACES WOULD HAVE
ENJOYED A CONSTITUTIONAL RIGHT OF EQUAL ACCESS TO THE PARK'S FACILITIES
HAD IT CONTINUED. 

PETITIONERS ALSO CONTEND THAT SINCE SENATOR BACON DID NOT EXPRESSLY
PROVIDE FOR A REVERTER IN THE EVENT THAT THE RACIAL RESTRICTIONS OF THE
TRUST FAILED, NO ONE CAN KNOW WITH ABSOLUTE CERTAINTY THAT THE SENATOR
WOULD HAVE PREFERRED TERMINATION OF THE PARK RATHER THAN ITS
INTEGRATION, AND THE DECISION OF THE GEORGIA COURT THEREFORE INVOLVED A
MATTER OF CHOICE.  IT MIGHT BE DIFFICULT TO ARGUE WITH THESE ASSERTIONS
IF THEY STOOD ALONE, BUT THEN PETITIONERS CONCLUDE:  "ITS (THE COURT'S)
CHOICE, THE ANTI-NEGRO CHOICE, VIOLATES THE FOURTEENTH AMENDMENT,
WHETHER IT BE CALLED A 'GUESS,' AN ITEM IN 'SOCIAL PHILOSOPHY,' OR
ANYTHING ELSE AT ALL."  WE DO NOT UNDERSTAND PETITIONERS TO BE
CONTENDING HERE THAT THE GEORGIA JUDGES WERE MOTIVATED EITHER
CONSCIOUSLY OR UNCONSCIOUSLY BY A DESIRE TO DISCRIMINATE AGAINST
NEGROES.  IN ANY CASE, THERE IS, AS NOTED ABOVE, ABSOLUTELY NOTHING
BEFORE THIS COURT TO SUPPORT A FINDING OF SUCH MOTIVATION.  WHAT
REMAINS OF PETITIONERS' ARGUMENT IS THE IDEA THAT THE GEORGIA COURTS
HAD A CONSTITUTIONAL OBLIGATION IN THIS CASE TO RESOLVE ANY DOUBT ABOUT
THE TESTATOR'S INTENT IN FAVOR OF PRESERVING THE TRUST.  THUS STATED,
WE SEE NO MERIT IN THE ARGUMENT.  THE ONLY CHOICE THE GEORGIA COURTS
EITHER HAD OR EXERCISED IN THIS REGARD WAS THEIR JUDICIAL JUDGMENT IN
CONSTRUING BACON'S WILL TO DETERMINE HIS INTENT AND THE CONSTITUTION
IMPOSES NO REQUIREMENT UPON THE GEORGIA COURTS TO APPROACH BACON'S WILL
ANY DIFFERENTLY THAN THEY WOULD APPROACH ANY WILL CREATING ANY
CHARITABLE TRUST OF ANY KIND.  SURELY THE FOURTEENTH AMENDMENT IS NOT
VIOLATED WHERE, AS HERE, A STATE COURT OPERATING IN ITS JUDICIAL
CAPACITY FAIRLY APPLIES ITS NORMAL PRINCIPLES OF CONSTRUCTION TO
DETERMINE THE TESTATOR'S TRUE INTENT IN ESTABLISHING A CHARITABLE TRUST
AND THEN REACHES A CONCLUSION WITH REGARD TO THAT INTENT WHICH, BECAUSE
OF THE OPERATION OF NEUTRAL AND NONDISCRIMINATORY STATE TRUST LAWS,
EFFECTIVELY DENIES EVERYONE, WHITES AS WELL AS NEGROES, THE BENEFITS OF
THE TRUST. 

ANOTHER ARGUMENT MADE BY PETITIONERS IS THAT THE DECISION OF THE
GEORGIA COURTS HOLDING THAT THE BACONSFIELD TRUST HAD "FAILED" MUST
REST LOGICALLY ON THE UNSPOKEN PREMISE THAT THE PRESENCE OR PROXIMITY
OF NEGROES IN BACONSFIELD WOULD DESTROY THE DESIRABILITY OF THE PARK
FOR WHITES.  THIS ARGUMENT REFLECTS A RATHER FUNDAMENTAL
MISUNDERSTANDING OF GEORGIA LAW.  THE BACONSFIELD TRUST "FAILED" UNDER
THAT LAW NOT BECAUSE OF ANY BELIEF ON THE PART OF ANY LIVING PERSON
THAT WHITES AND NEGROES MIGHT NOT ENJOY BEING TOGETHER BUT, RATHER,
BECAUSE SENATOR BACON WHO DIED MANY YEARS AGO INTENDED THAT THE PARK
REMAIN FOREVER FOR THE EXCLUSIVE USE OF WHITE PEOPLE. 

PETITIONERS ALSO ADVANCE A NUMBER OF CONSIDERATIONS OF PUBLIC POLICY
IN OPPOSITION TO THE CONCLUSION WHICH WE HAVE REACHED.  IN PARTICULAR,
THEY REGRET, AS WE DO, THE LOSS OF THE BACONSFIELD TRUST TO THE CITY OF
MACON, AND THEY ARE CONCERNED LEST WE SET A PRECEDENT UNDER WHICH OTHER
CHARITABLE TRUSTS WILL BE TERMINATED.  IT BEARS REPEATING THAT OUR
HOLDING TODAY REAFFIRMS THE TRADITIONAL ROLE OF THE STATES IN
DETERMINING WHETHER OR NOT TO APPLY THEIR CY PRES DOCTRINES TO
PARTICULAR TRUSTS.  NOTHING WE HAVE SAID HERE PREVENTS A STATE COURT
FROM APPLYING ITS CY PRES RULE IN A CASE WHERE THE GEORGIA COURT, FOR
EXAMPLE, MIGHT NOT APPLY ITS RULE.  MORE FUNDAMENTALLY, HOWEVER, THE
LOSS OF CHARITABLE TRUSTS SUCH AS BACONSFIELD IS PART OF THE PRICE WE
PAY FOR PERMITTING DECEASED PERSONS TO EXERCISE A CONTINUING CONTROL
OVER ASSETS OWNED BY THEM AT DEATH.  THIS ASPECT OF FREEDOM OF
TESTATION, LIKE MOST THINGS, HAS ITS ADVANTAGES AND DISADVANTAGES.  THE
RESPONSIBILITY OF THIS COURT, HOWEVER, IS TO CONSTRUE AND ENFORCE THE
CONSTITUTION AND LAWS OF THE LAND AS THEY ARE AND NOT TO LEGISLATE
SOCIAL POLICY ON THE BASIS OF OUR OWN PERSONAL INCLINATIONS. 

IN THEIR LENGTHY AND LEARNED BRIEFS, THE PETITIONERS AND THE
SOLICITOR GENERAL AS AMICUS CURIAE HAVE ADVANCED SEVERAL ARGUMENTS
WHICH WE HAVE NOT HERE DISCUSSED.  WE HAVE CAREFULLY EXAMINED EACH OF
THESE ARGUMENTS, HOWEVER, AND FIND ALL TO BE WITHOUT MERIT. 

THE JUDGMENT IS

              AFFIRMED. 

/1/ SEE, E.G., FIRST UNIVERSALIST SOCIETY V. SWETT, 148 ME. 142, 90
A.2D 812 (1952); LAFOND V. CITY OF DETROIT, 357 MICH. 362, 98 N.W.2D
530 (1959). 

/2/  ALTHOUGH SENATOR BACON'S WILL DID NOT CONTAIN AN EXPRESS
PROVISION GRANTING A REVERTER TO ANY PARTY SHOULD THE TRUST FAIL, SEC.
108-106 (4) OF THE GEORGIA CODE QUOTED IN THE TEXT MAKES SUCH AN
OMISSION IRRELEVANT UNDER STATE LAW.  AT ONE POINT IN THE SENATOR'S
WILL HE DID GRANT "ALL REMAINDERS AND REVERSIONS" TO THE CITY OF MACON,
BUT THE SUPREME COURT OF GEORGIA SHOWED IN ITS OPINION THAT THIS
LANGUAGE DID NOT RELATE IN ANY WAY TO WHAT SHOULD HAPPEN UPON A FAILURE
OF THE TRUST BUT WAS RELEVANT ONLY TO THE INITIAL VESTING OF THE
PROPERTY IN THE CITY.  THE GEORGIA COURT SAID: 

"SENATOR BACON DEVISED A LIFE ESTATE IN THE TRUST PROPERTY TO HIS
WIFE AND TWO DAUGHTERS, AND THE LANGUAGE POINTED OUT BY THE INTERVENORS
APPEARS IN THE FOLLOWING PROVISION OF THE WILL:  'WHEN MY WIFE,
VIRGINIA LAMAR BACON AND MY TWO DAUGHTERS, MARY LOUISE BACON SPARKS AND
AUGUSTA LAMAR BACON CURRY, SHALL ALL HAVE DEPARTED THIS LIFE, AND
IMMEDIATELY UPON THE DEATH OF THE LAST SURVIVOR OF THEM, IT IS MY WILL
THAT ALL RIGHT, TITLE AND INTEREST IN AND TO SAID PROPERTY HEREINBEFORE
DESCRIBED AND BOUNDED, BOTH LEGAL AND EQUITABLE, INCLUDING ALL
REMAINDERS AND REVERSIONS AND EVERY ESTATE IN THE SAME OF WHATSOEVER
KIND, SHALL THEREUPON VEST IN AND BELONG TO THE MAYOR AND COUNCIL OF
THE CITY OF MACON, AND TO THEIR SUCCESSORS FOREVER, IN TRUST ETC.'
THIS LANGUAGE CONCERNED REMAINDERS AND REVERSIONS PRIOR TO THE VESTING
OF THE LEGAL TITLE IN THE CITY OF MACON, AS TRUSTEES, AND NOT TO
REMAINDERS AND REVERSIONS OCCURRING BECAUSE OF A FAILURE OF THE TRUST,
WHICH SENATOR BACON APPARENTLY DID NOT CONTEMPLATE, AND FOR WHICH HE
MADE NO PROVISION."  224 GA. 826, 831, 165 S.E.2D 160, 165. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

BACON'S WILL DID NOT LEAVE ANY REMAINDER OR REVERSION IN
"BACONSFIELD" TO HIS HEIRS.  HE LEFT "ALL REMAINDERS AND REVERSIONS AND
EVERY ESTATE IN THE SAME OF WHATSOEVER KIND" TO THE CITY OF MACON.  HE
FURTHER PROVIDED THAT THE PROPERTY "UNDER NO CIRCUMSTANCES, OR BY ANY
AUTHORITY WHATSOEVER" SHOULD "BE SOLD OR ALIENATED OR DISPOSED OF, OR
AT ANY TIME FOR ANY REASON" BE "DEVOTED TO ANY OTHER PURPOSE OR USE
EXCEPTING SO FAR AS HEREIN SPECIFICALLY AUTHORIZED." 

GIVING THE PROPERTY TO THE HEIRS, RATHER THAN RESERVING IT FOR SOME
MUNICIPAL USE, DOES THEREFORE AS MUCH VIOLENCE TO BACON'S PURPOSE AS
WOULD A CONVERSION OF AN "ALL-WHITE" PARK INTO AN "ALL-NEGRO" PARK. 

NO MUNICIPAL USE IS OF COURSE POSSIBLE WHERE THE BENEFICIARIES ARE
MEMBERS OF ONE RACE ONLY.  THAT WAS TRUE IN 1911 WHEN BACON MADE HIS
WILL.  PLESSY V. FERGUSON, 163 U.S. 537, DECIDED IN 1896, HAD HELD THAT
WHILE "SEPARATE" FACILITIES COULD BE SUPPLIED EACH RACE, THOSE
FACILITIES HAD TO BE "EQUAL."  THE CONCEPT OF "EQUAL" IN THIS SETTING
MEANT NOT JUST ANOTHER PARK FOR NEGROES BUT ONE EQUAL IN QUALITY AND
SERVICE TO THAT MUNICIPAL FACILITY WHICH IS FURNISHED THE WHITES.  SEE
SWEATT V. PAINTER, 339 U.S. 629, 633-634.  IT IS APPARENT THAT BACON'S
WILL PROJECTED A MUNICIPAL USE WHICH AT THE TIME WAS NOT
CONSTITUTIONALLY PERMISSIBLE UNLESS LIKE ACCOMMODATIONS WERE MADE FOR
THE NEGRO RACE.     SO FAR AS THIS RECORD REVEALS, THE DAY THE PRESENT
PARK WAS OPENED TO WHITES IT MAY, CONSTITUTIONALLY SPEAKING, ALSO HAVE
BEEN AVAILABLE TO NEGROES. 

THE SUPREME COURT OF GEORGIA STATED THAT THE SOLE PURPOSE FOR WHICH
THE TRUST WAS CREATED HAD BECOME IMPOSSIBLE.  BUT IT WAS IMPOSSIBLE IN
THOSE ABSOLUTE TERMS EVEN UNDER THE REGIME OF PLESSY V. FERGUSON.  AS
TO CY PRES, THE GEORGIA STATUTE PROVIDES: 

     "WHEN A VALID CHARITABLE BEQUEST IS INCAPABLE FOR SOME REASON

  OF EXECUTION IN THE EXACT MANNER PROVIDED BY THE TESTATOR, DONOR,

  OR FOUNDER, A COURT OF EQUITY WILL CARRY IT INTO EFFECT IN SUCH A

 WAY AS WILL AS NEARLY AS POSSIBLE EFFECTUATE HIS INTENTION."  GA.

  CODE ANN. SEC. 108-202 (1959). 

THE GEORGIA COURT HELD THAT THE DOCTRINE OF CY PRES "CAN NOT BE
APPLIED TO ESTABLISH A TRUST FOR AN ENTIRELY DIFFERENT PURPOSE FROM
THAT INTENDED BY THE TESTATOR."  224 GA. 826, 830, 165 S.E.2D 160,
164.  THAT, HOWEVER, DOES NOT STATE THE ISSUE REALISTICALLY.  NO
PROPOSAL TO BAR USE OF THE PARK BY WHITES HAS EVER BEEN MADE, EXCEPT
THE REVERSION ORDERED TO THE HEIRS.  CONTINUATION OF THE USE OF THE
PROPERTY AS A MUNICIPAL PARK OR FOR ANOTHER MUNICIPAL PURPOSE CARRIES
OUT A LARGER SHARE OF BACON'S PURPOSE THAN THE COMPLETE DESTRUCTION OF
SUCH USE BY THE DECREE WE TODAY AFFIRM. 

THE PURPOSE OF THE WILL WAS TO DEDICATE THE LAND FOR SOME MUNICIPAL
USE.  THAT IS STILL POSSIBLE.  WHATEVER THAT USE, NEGROES WILL OF
COURSE BE ADMITTED, FOR SUCH IS THE CONSTITUTIONAL COMMAND.  BUT WHITES
WILL ALSO BE ADMITTED.  LETTING BOTH RACES SHARE THE FACILITY IS CLOSER
TO A REALIZATION OF BACON'S DESIRE THAN A COMPLETE DESTRUCTION OF THE
WILL AND THE ABANDONMENT OF BACON'S DESIRE THAT T,E PROPERTY BE USED
FOR SOME MUNICIPAL PURPOSE. 

BACON, IN LIMITING THE USE OF THIS PARK PROPERTY "TO WHITE PEOPLE,"
EXPRESSED THE VIEW THAT "IN THEIR SOCIAL RELATIONS THE TWO RACES (WHITE
AND NEGRO) SHOULD BE FOREVER SEPARATE AND THAT THEY SHOULD NOT HAVE
PLEASURE OR RECREATION GROUNDS TO BE USED OR ENJOYED, TOGETHER AND IN
COMMON."  CAN WE POSSIBLY SAY THAT TEST PUTS A CURSE ON EACH AND EVERY
MUNICIPAL USE-- MUSIC FESTIVALS, MEDICAL CLINICS, HOSPITALS? 

MOREOVER, PUTTING THE PROPERTY IN THE HANDS OF THE HEIRS UILL NOT
NECESSARILY ACHIEVE THE RACIAL SEGREGATION THAT BACON DESIRED.  WE DEAL
WITH CITY REAL ESTATE.  IF A THEATRE IS ERECTED, NEGROES CANNOT BE
EXCLUDED.  IF A RESTAURANT IS OPENED, NEGROES MUST BE SERVED.  IF
OFFICE OR HOUSING STRUCTURES ARE ERECTED, NEGRO TENANTS MUST BE
ELIGIBLE.  IF A CHURCH IS ERECTED, MIXED MARRIAGE CEREMONIES MAY BE
PERFORMED.  IF A COURT UNDERTOOK TO ATTACH A RACIAL-USE CONDITION TO
THE PROPERTY ONCE IT BECAME "PRIVATE," THAT WOULD BE AN
UNCONSTITUTIONAL COVENANT OR CONDITION. 

BACON'S BASIC DESIRE CAN BE REALIZED ONLY BY THE REPEAL OF THE
FOURTEENTH AMENDMENT.  SO THE FACT IS THAT IN THE VICISSITUDES OF TIME
THERE IS NO CONSTITUTIONAL WAY TO ASSURE THAT THIS PROPERTY WILL NOT
SERVE THE NEEDS OF NEGROES. 

THE GEORGIA DECISION, WHICH WE TODAY APPROVE, CAN ONLY BE A GESTURE
TOWARD A STATE-SANCTIONED SEGREGATED WAY OF LIFE, NOW PASSE.  IT
THEREFORE SHOULD FAIL AS THE IMPOSITION OF A PENALTY FOR OBEDIENCE TO A
PRINCIPLE OF NATIONAL SUPREMACY. 

MR. JUSTICE BRENNAN, DISSENTING. 

FOR ALMOST HALF A CENTURY BACONSFIELD HAS BEEN A PUBLIC PARK. 
SENATOR BACON'S WILL PROVIDED THAT UPON THE DEATH OF THE LAST SURVIVOR
AMONG HIS WIDOW AND TWO DAUGHTERS TITLE TO BACONSFIELD WOULD VEST IN
THE MAYOR AND COUNCIL OF THE CITY OF MACON AND THEIR SUCCESSORS
FOREVER.  PURSUANT TO THE EXPRESS PROVISIONS OF THE WILL, THE MAYOR AND
CITY COUNCIL APPOINTED A BOARD OF MANAGERS TO SUPERVISE THE OPERATION
OF THE PARK, AND FROM TIME TO TIME THESE SAME PUBLIC OFFICIALS MADE
APPOINTMENTS TO FILL VACANCIES ON THE BOARD.  SENATOR BACON ALSO
BEQUEATHED TO THE CITY CERTAIN BONDS WHICH PROVIDED INCOME USED IN THE
OPERATION OF THE PARK. 

THE CITY ACQUIRED TITLE TO BACONSFIELD IN 1920 BY PURCHASING THE
INTERESTS OF SENATOR BACON'S SURVIVING DAUGHTER AND ANOTHER PERSON WHO
RESIDED ON THE LAND.  SOME $46,000 OF PUBLIC MONEY WAS SPENT OVER A
NUMBER OF YEARS TO PAY THE PURCHASE PRICE.  FROM THE OUTSET AND
THROUGHOUT THE YEARS THE MAYOR AND CITY COUNCIL ACTED AS TRUSTEES,
BACONSFIELD WAS ADMINISTERED AS A PUBLIC PARK.  T. CLEVELAND JAMES,
SUPERINTENDENT OF CITY PARKS DURING THIS PERIOD, TESTIFIED T,AT WHEN HE
FIRST WORKED AT BACONSFIELD IT WAS A "WILDERNESS . . . NOTHING THERE
BUT JUST UNDERGROWTH EVERYWHERE, ONE ROAD THROUGH THERE AND THAT'S ALL,
ONE PAVED ROAD."  HE SAID THERE WERE NO PARK FACILITIES AT THAT TIME. 
IN THE 1930'S BACONSFIELD WAS TRANSFORMED INTO A MODERN RECREATIONAL
FACILITY BY EMPLOYEES OF THE WORKS PROGRESS ADMINISTRATION, AN AGENCY
OF THE FEDERAL GOVERNMENT.  WPA DID SO UPON THE CITY'S REPRESENTATION
THAT BACONSFIELD WAS A PUBLIC PARK.  WPA EMPLOYED MEN DAILY FOR THE
BETTER PART OF A YEAR IN THE CONVERSION OF BACONSFIELD TO A PARK.  WPA
AND MR. JAMES AND HIS STAFF CUT UNDERBRUSH, CLEARED PATHS, DUG PONDS,
BUILT BRIDGES AND BENCHES, PLANTED SHRUBBERY, AND, IN MR. JAMES' WORDS,
"JUST MADE A GENERAL PARK OUT OF IT."  OTHER CAPITAL IMPROVEMENTS WERE
MADE IN LATER YEARS WITH BOTH FEDERAL AND CITY MONEY.  THE BOARD OF
MANAGERS ALSO SPENT FUNDS TO IMPROVE AND MAINTAIN THE PARK. 

ALTHOUGH THE BOARD OF MANAGERS SUPERVISED OPERATIONS, GENERAL
MAINTENANCE OF BACONSFIELD WAS THE RESPONSIBILITY OF THE CITY'S
SUPERINTENDENT OF PARKS.  MR. JAMES WAS ASKED WHETHER HE TREATED
BACONSFIELD ABOUT THE SAME AS OTHER CITY PARKS.  HE ANSWERED, "YES,
INCLUDED IN MY APPROPRIATION.  . . . " THE EXTENT OF THE CITY'S
SERVICES TO BACONSFIELD IS EVIDENT FROM THE INCREASE OF SEVERAL
THOUSAND DOLLARS IN THE ANNUAL EXPENSES INCURRED FOR MAINTENANCE BY THE
BOARD OF MANAGERS AFTER THE MAYOR AND CITY COUNCIL WITHDREW AS TRUSTEES
IN 1964. 

THE CITY OFFICIALS WITHDREW AFTER SUIT WAS BROUGHT IN A GEORGIA
COURT BY INDIVIDUAL MEMBERS OF THE BOARD OF MANAGERS TO COMPEL THE
APPOINTMENT OF PRIVATE TRUSTEES ON THE GROUND THAT THE PUBLIC OFFICIALS
COULD NOT ENFORCE RACIAL SEGREGATION OF THE PARK.  THE GEORGIA COURT
APPOINTED PRIVATE TRUSTEES, APPARENTLY ON THE ASSUMPTION THAT THEY
WOULD BE FREE TO ENFORCE THE RACIALLY RESTRICTIVE PROVISION IN SENATOR
BACON'S WILL.  IN EVANS V. NEWTON, 382 U.S. 296 (1966), WE HELD THAT
THE PARK HAD ACQUIRED SUCH UNALTERABLE INDICIA OF A PUBLIC FACILITY
THAT FOR THE PURPOSES OF THE EQUAL PROTECTION CLAUSE IT REMAINED
"PUBLIC" EVEN AFTER THE CITY OFFICIALS WERE REPLACED AS TRUSTEES BY A
BOARD OF PRIVATE CITIZENS.  CONSEQUENTLY, SENATOR BACON'S
DISCRIMINATORY PURPOSE COULD NOT BE ENFORCED BY ANYONE.  THIS COURT
ACCORDINGLY REVERSED THE GEORGIA COURT'S ACCEPTANCE OF THE CITY
OFFICIALS' RESIGNATIONS AND ITS APPOINTMENT OF PRIVATE TRUSTEES.  ON
REMAND THE GEORGIA COURTS HELD THAT SINCE SENATOR BACON'S DESIRE TO
RESTRICT THE PARK TO THE WHITE RACE COULD NOT BE CARRIED OUT, THE TRUST
FAILED AND THE PROPERTY MUST REVERT TO HIS HEIRS.  THE COURT TODAY
HOLDS THAT THAT RESULT AND THE PROCESS BY WHICH IT WAS REACHED DO NOT
CONSTITUTE A DENIAL OF EQUAL PROTECTION.  I RESPECTFULLY DISSENT. 

NO RECORD COULD PRESENT A CLEARER CASE OF THE CLOSING OF A PUBLIC
FACILITY FOR THE SOLE REASON THAT THE PUBLIC AUTHORITY THAT OWNS AND
MAINTAINS IT CANNOT KEEP IT SEGREGATED.  THIS IS NOT A CASE WHERE THE
REASONS OR MOTIVES FOR A PARTICULAR ACTION ARE ARGUABLY UNCLEAR, CF.
PALMER V. THOMPSON, 419 F.2D 1222 (C.A. 5TH CIR. 1969) (EN BANC), NOR
IS IT ONE WHERE A DISCRIMINATORY PURPOSE IS ONE AMONG OTHER REASONS,
CF. JOHNSON V. BRANCH, 364 F.2D 177 (C.A. 4TH CIR. 1966), NOR ONE WHERE
A DISCRIMINATORY PURPOSE CAN BE FOUND ONLY BY INFERENCE, CF. GOMILLION
V. LIGHTFOOT, 364 U.S. 339 (1960).  THE REASONING OF THE GEORGIA
SUPREME COURT IS SIMPLY THAT SENATOR BACON INTENDED BACONSFIELD TO BE A
SEGREGATED PUBLIC PARK, AND BECAUSE IT CANNOT BE OPERATED AS A
SEGREGATED PUBLIC PARK ANY LONGER, WATSON V. MEMPHIS, 373 U.S. 526
(1963); SEE MAYOR & CITY COUNCIL OF BALTIMORE V. DAWSON, 350 U.S. 877
(1955), THE PARK MUST BE CLOSED DOWN AND BACONSFIELD MUST REVERT TO
SENATOR BACON'S HEIRS.  THIS COURT AGREES THAT THIS "CITY PARK IS
(BEING) DESTROYED BECAUSE THE CONSTITUTION REQUIRES) IT TO BE
INTEGRATED.  . . . "  NO ONE HAS PUT FORWARD ANY OTHER REASON WHY THE
PARK IS REVERTING FROM THE CITY OF MACON TO THE HEIRS OF SENATOR
BACON.  IT IS THEREFORE QUITE PLAIN THAT BUT FOR THE CONSTITUTIONAL
PROHIBITION ON THE OPERATION OF SEGREGATED PUBLIC PARKS, THE CITY OF
MACON WOULD CONTINUE TO OWN AND MAINTAIN BACONSFIELD. 

I HAVE NO DOUBT THAT A PUBLIC PARK MAY CONSTITUTIONALLY BE CLOSED
DOWN BECAUSE IT IS TOO EXPENSIVE TO RUN OR HAS BECOME SUPERFLUOUS, OR
FOR SOME OTHER REASON, STRONG OR WEAK, OR FOR NO REASON AT ALL.  BUT
UNDER THE EQUAL PROTECTION CLAUSE A STATE MAY NOT CLOSE DOWN A PUBLIC
FACILITY SOLELY TO AVOID ITS DUTY TO DESEGREGATE THAT FACILITY.  IN
GRIFFIN V. COUNTY SCHOOL BOARD, 377 U.S. 218, 231 (1964), WE SAID,
"WHATEVER NONRACIAL GROUNDS MIGHT SUPPORT A STATE'S ALLOWING A COUNTY
TO ABANDON PUBLIC SCHOOLS, THE OBJECT MUST BE A CONSTITUTIONAL ONE, AND
GROUNDS OF RACE AND OPPOSITION TO DESEGREGATION DO NOT QUALIFY AS
CONSTITUTIONAL."  IN THIS CONTEXT WHAT IS TRUE OF PUBLIC SCHOOLS IS
TRUE OF PUBLIC PARKS.  WHEN IT IS AS STARKLY CLEAR AS IT IS IN THIS
CASE THAT A PUBLIC FACILITY WOULD REMAIN OPEN BUT FOR THE
CONSTITUTIONAL COMMAND THAT IT BE OPERATED ON A NON-SEGREGATED BASIS,
THE CLOSING OF THAT FACILITY CONVEYS AN UNAMBIGUOUS MESSAGE OF
COMMUNITY INVOLVEMENT IN RACIAL DISCRIMINATION.  ITS CLOSING FOR THE
SOLE AND UNMISTAKABLE PURPOSE OF AVOIDING DESEGREGATION, LIKE ITS
OPERATION AS A SEGREGATED PARK, "GENERATES (IN NEGROES) A FEELING OF
INFERIORITY AS TO THEIR STATUS IN THE COMMUNITY THAT MAY AFFECT THEIR
HEARTS AND MINDS IN A WAY UNLIKELY EVER TO BE UNDONE."  BROWN V. BOARD
OF EDUCATION, 347 U.S. 483, 494 (1954).  IT IS NO ANSWER THAT
CONTINUING OPERATION AS A SEGREGATED FACILITY IS A CONSTANT REMINDER OF
A PUBLIC POLICY THAT STIGMATIZES ONE RACE, WHEREAS ITS CLOSING OCCURS
ONCE AND IS OVER.  THAT DIFFERENCE DOES NOT PROVIDE A CONSTITUTIONAL
DISTINCTION:  STATE INVOLVEMENT IN DISCRIMINATION IS UNCONSTITUTIONAL,
HOWEVER SHORT-LIVED. 

THE COURT, HOWEVER, AFFIRMS THE JUDGMENT OF THE GEORGIA SUPREME
COURT ON THE GROUND THAT THE CLOSING OF BACONSFIELD DID NOT INVOLVE
STATE ACTION.  THE COURT CONCEDES THAT THE CLOSING OF THE PARK BY THE
CITY "SOLELY TO AVOID THE EFFECT OF A PRIOR COURT ORDER DIRECTING THAT
THE PARK BE INTEGRATED" WOULD BE UNCONSTITUTIONAL.  HOWEVER, THE COURT
FINDS THAT IN THIS CASE IT IS NOT THE STATE OR CITY BUT "A PRIVATE
PARTY WHICH IS INJECTING THE RACIALLY DISCRIMINATORY MOTIVATION," ANTE,
AT 445.  THE EXCULPATION OF THE STATE AND CITY FROM RESPONSIBILITY FOR
THE CLOSING OF THE PARK IS SIMPLY INDEFENSIBLE ON THIS RECORD.  THIS
DISCRIMINATORY CLOSING IS PERMEATED WITH STATE ACTION:  AT THE TIME
SENATOR BACON WROTE HIS WILL GEORGIA STATUTES EXPRESSLY AUTHORIZED AND
SUPPORTED THE PRECISE KIND OF DISCRIMINATION PROVIDED FOR BY HIM; IN
ACCEPTING TITLE TO THE PARK, PUBLIC OFFICIALS OF THE CITY OF MACON
ENTERED INTO AN ARRANGEMENT VESTING IN PRIVATE PERSONS THE POWER TO
ENFORCE A REVERSION IF THE CITY SHOULD EVER INCUR A CONSTITUTIONAL
OBLIGATION TO DESEGREGATE THE PARK; IT IS A PUBLIC PARK THAT IS BEING
CLOSED FOR A DISCRIMINATORY REASON AFTER HAVING BEEN OPERATED FOR
NEARLY HALF A CENTURY AS A SEGREGATED PUBLIC FACILITY; AND IT IS A
STATE COURT THAT IS ENFORCING THE RACIAL RESTRICTION THAT KEEPS
APPARENTLY WILLING PARTIES OF DIFFERENT RACES FROM COMING TOGETHER IN
THE PARK.  THAT IS STATE ACTION IN OVERWHELMING ABUNDANCE.  I NEED
EMPHASIZE ONLY THREE ELEMENTS OF THE STATE ACTION PRESENT HERE. 

FIRST, THERE IS STATE ACTION WHENEVER A STATE ENTERS INTO AN
ARRANGEMENT THAT CREATES A PRIVATE RIGHT TO COMPEL OR ENFORCE THE
REVERSION OF A PUBLIC FACILITY.  WHETHER THE RIGHT IS A POSSIBILITY OF
REVERTER, A RIGHT OF ENTRY, AN EXECUTORY INTEREST, OR A CONTRACTUAL
RIGHT, IT CAN BE CREATED ONLY WITH THE CONSENT OF A PUBLIC BODY OR
OFFICIAL, FOR EXAMPLE THE OFFICIAL ACTION INVOLVED IN MACON'S
ACCEPTANCE OF THE GIFT OF BACONSFIELD.  THE STATE'S INVOLVEMENT IN THE
CREATION OF SUCH A RIGHT IS ALSO INVOLVEMENT IN ITS ENFORCEMENT; THE
STATE'S ASSENT TO THE CREATION OF THE RIGHT NECESSARILY CONTEMPLATES
THAT THE STATE WILL ENFORCE THE RIGHT IF CALLED UPON TO DO SO.  WHERE,
AS IN THIS CASE, THE STATE'S ENFORCEMENT ROLE CONFLICTS WITH ITS
OBLIGATION TO COMPLY WITH THE CONSTITUTIONAL COMMAND AGAINST RACIAL
SEGREGATION THE ATTEMPTED ENFORCEMENT MUST BE DECLARED REPUGNANT TO THE
FOURTEENTH AMENDMENT. 

MOREOVER, A STATE CANNOT DIVEST ITSELF BY CONTRACT OF THE POWER TO
PERFORM ESSENTIAL GOVERNMENTAL FUNCTIONS.  E.G., CONTRIBUTORS TO THE
PENNSYLVANIA HOSPITAL V. CITY OF PHILADELPHIA, 245 U.S. 20 (1917);
STONE V. MISSISSIPPI, 101 U.S. 814 (1880).  THUS A STATE CANNOT BIND
ITSELF NOT TO OPERATE A PUBLIC PARK IN ACCORDANCE WITH THE EQUAL
PROTECTION CLAUSE, UPON PAIN OF FORFEITURE OF THE PARK.  THE DECISION
WHETHER OR NOT A PUBLIC FACILITY SHALL BE OPERATED IN COMPLIANCE WITH
THE CONSTITUTION IS AN ESSENTIALLY GOVERNMENTAL DECISION.  AN
ARRANGEMENT THAT PURPORTS TO PREVENT A STATE FROM COMPLYING WITH THE
CONSTITUTION CANNOT BE CARRIED OUT, EVANS V. NEWTON, SUPRA; SEE
PENNSYLVANIA V. BOARD OF DIRECTORS, 353 U.S. 230 (1957).  NOR CAN IT BE
ENFORCED BY A REVERSION; A RACIAL RESTRICTION IS SIMPLY INVALID WHEN
INTENDED TO BIND A PUBLIC BODY AND CANNOT BE GIVEN ANY EFFECT WHATEVER,
CF. PENNSYLVANIA V. BROWN, 392 F.2D 120 (C.A. 3D CIR. 1968). 
INITIALLY THE CITY OF MACON WAS WILLING TO COMPLY WITH ITS
CONSTITUTIONAL OBLIGATION TO DESEGREGATE BACONSFIELD.  FOR A TIME THE
CITY ALLOWED NEGROES TO USE THE PARK, "TAKING THE POSITION THAT THE
PARK WAS A PUBLIC FACILITY WHICH IT COULD NOT CONSTITUTIONALLY MANAGE
AND MAINTAIN ON A SEGREGATED BASIS."  EVANS V. NEWTON, SUPRA, AT 297. 
BUT THE MAYOR AND COUNCIL RENEGED ON THEIR CONSTITUTIONAL DUTY WHEN THE
PRESENT LITIGATION BEGAN, AND INSTEAD OF KEEPING BACONSFIELD
DESEGREGATED THEY SOUGHT TO SEVER THE CITY'S CONNECTION WITH IT BY
RESIGNING AS TRUSTEES AND TELLING SUPERINTENDENT JAMES TO STOP
MAINTAINING THE PARK.  THE RESOLUTION OF THE MAYOR AND COUNCIL UPON
THEIR RESIGNATION AS TRUSTEES MAKES IT VERY CLEAR THAT THE PROBABILITY
OF A REVERSION HAD INDUCED THEM TO ABANDON DESEGREGATION.  PRIVATE
INTERESTS OF THE SORT ASSERTED BY THE RESPONDENTS HERE CANNOT
CONSTITUTIONALLY BE ALLOWED TO CONTROL THE CONDUCT OF PUBLIC AFFAIRS IN
THAT MANNER. 

A FINDING OF DISCRIMINATORY STATE ACTION IS REQUIRED HERE ON A
SECOND GROUND.  SHELLEY V. KRAEMER, 334 U.S. 1 (1948), STANDS AT LEAST
FOR THE PROPOSITION THAT WHERE PARTIES OF DIFFERENT RACES ARE WILLING
TO DEAL WITH ONE ANOTHER A STATE COURT CANNOT KEEP THEM FROM DOING SO
BY ENFORCING A PRIVATELY DEVISED RACIAL RESTRICTION.  SEE ALSO SWEET
BRIAR INSTITUTE V. BUTTON, 280 F.SUPP.  312 (D.C.W.D. VA. 1967) (STATE
ATTORNEY GENERAL ENJOINED FROM ENFORCING PRIVATELY DEVISED RACIAL
RESTRICTION).  NOTHING IN THE RECORD SUGGESTS THAT AFTER OUR DECISION
IN EVANS V. NEWTON, SUPRA, THE CITY OF MACON RETRACTED ITS PREVIOUS
WILLINGNESS TO MANAGE BACONSFIELD ON A NONSEGREGATED BASIS, OR THAT THE
WHITE BENEFICIARIES OF SENATOR BACON'S GENEROSITY WERE UNWILLING TO
SHARE IT WITH NEGROES, RATHER THAN HAVE THE PARK REVERT TO HIS HEIRS. 
INDEED, ALTHOUGH IT MAY BE THAT THE CITY WOULD HAVE PREFERRED TO KEEP
THE PARK SEGREGATED, THE RECORD SUGGESTS THAT, GIVEN THE IMPOSSIBILITY
OF THAT GOAL, THE CITY WANTED TO KEEP THE PARK OPEN.  THE RESOLUTION BY
WHICH THE MAYOR AND COUNCIL RESIGNED AS TRUSTEES PRIOR TO THE DECISION
IN EVANS V. NEWTON, SUPRA, REFLECTED, NOT OPPOSITION TO THE ADMISSION
OF NEGROES INTO THE PARK, BUT A FEAR THAT IF NEGROES WERE ADMITTED THE
PARK WOULD BE LOST TO THE CITY.  THE MAYOR AND COUNCIL DID NOT
PARTICIPATE IN THIS LITIGATION AFTER THE DECISION IN EVANS V. NEWTON. 
HOWEVER, THE ATTORNEY GENERAL OF GEORGIA WAS MADE A PARTY AFTER REMAND
FROM THIS COURT, AND, ACTING "AS PARENS PATRIAE IN ALL LEGAL MATTERS
PERTAINING TO THE ADMINISTRATION AND DISPOSITION OF CHARITABLE TRUST IN
THE STATE OF GEORGIA IN WHICH THE RIGHTS OF BENEFICIARIES ARE
INVOLVED," HE OPPOSED A REVERSION TO THE HEIRS AND ARGUED THAT
BACONSFIELD SHOULD BE MAINTAINED "AS A PARK FOR ALL THE CITIZENS OF THE
STATE OF GEORGIA."  THUS, SO FAS AS THE RECORD SHOWS, THIS IS A CASE OF
A STATE COURT'S ENFORCEMENT OF A RACIAL RESTRICTION TO PREVENT WILLING
PARTIES FROM DEALING WITH ONE ANOTHER.  THE DECISION OF THE GEORGIA
COURTS THUS, UNDER SHELLEY V. KRAEMER, CONSTITUTES STATE ACTION DENYING
EQUAL PROTECTION. 

FINALLY, A FINDING OF DISCRIMINATORY STATE ACTION IS REQUIRED ON A
THIRD GROUND.  IN REITMAN V. MULKEY, 387 U.S. 369 (1967), THIS COURT
ANNOUNCED THE BASIC PRINCIPLE THAT A STATE ACTS IN VIOLATION OF THE
EQUAL PROTECTION CLAUSE WHEN IT SINGLES OUT RACIAL DISCRIMINATION FOR
PARTICULAR ENCOURAGEMENT, AND THEREBY GIVES IT A SPECIAL PREFERRED
STATUS IN THE LAW, EVEN THOUGH THE STATE DOES NOT ITSELF IMPOSE OR
COMPEL SEGREGATION.  THIS APPROACH TO THE ANALYSIS OF STATE ACTION WAS
FORESHADOWED IN MR. JUSTICE WHITE'S SEPARATE OPINION IN EVANS V.
NEWTON, SUPRA.  THERE MR. JUSTICE WHITE COMPREHENSIVELY REVIEWED THE
LAW OF TRUSTS AS THAT LAW STOOD IN GEORGIA IN 1905, PRIOR TO THE
ENACTMENT OF SECS. 69-504 AND 69-505 OF THE GEORGIA CODE.  HE CONCLUDED
THAT PRIOR TO THE ENACTMENT OF THOSE STATUTES "IT WOULD HAVE BEEN
EXTREMELY DOUBTFUL" WHETHER GEORGIA LAW AUTHORIZED "A TRUST FOR PARK
PURPOSES WHEN A PORTION OF THE PUBLIC WAS TO BE EXCLUDED FROM THE
PARK."  382 U.S.,AT 310.  SECTIONS 69-504 AND 69-505 REMOVED THIS DOUBT
BY EXPRESSLY PERMITTING DEDICATION OF LAND TO THE PUBLIC FOR USE AS A
PARK OPEN TO ONE RACE ONLY.  THEREBY GEORGIA UNDERTOOK TO FACILITATE
RACIAL RESTRICTIONS AS DISTINGUISHED FROM ALL OTHER KINDS OF
RESTRICTION ON ACCESS TO A PUBLIC PARK.  REITMAN COMPELS THE CONCLUSION
THAT IN DOING SO GEORGIA VIOLATED THE EQUAL PROTECTION CLAUSE. 

IN 1911, ONLY SIX YEARS AFTER THE ENACTMENT OF SECS. 69-504 AND 69
505, SENATOR BACON, A LAWYER, WROTE HIS WILL.  WHEN HE WROTE THE
PROVISION CREATING BACONSFIELD AS A PUBLIC PARK OPEN ONLY TO THE WHITE
RACE, HE WAS NOT MERELY EXPRESSING HIS OWN TESTAMENTARY INTENT, BUT WAS
TAKING ADVANTAGE OF THE SPECIAL POWER GEORGIA HAD CONFERRED BY SECS. 69
504 AND 69-505 ON TESTATORS SEEKING TO ESTABLISH RACIALLY SEGREGATED
PUBLIC PARKS.  AS MR. JUSTICE WHITE CONCLUDED IN EVANS V. NEWTON, "'THE
STATE THROUGH ITS REGULATIONS HAS BECOME INVOLVED TO SUCH A SIGNIFICANT
EXTENT' IN BRINGING ABOUT THE DISCRIMINATORY PROVISION IN SENATOR
BACON'S TRUST THAT THE RACIAL RESTRICTION 'MUST BE HELD TO REFLECT . .
. STATE POLICY AND THEREFORE TO VIOLATE THE FOURTEENTH AMENDMENT.'" 
382 U.S.,AT 311.  THIS STATE-ENCOURAGED TESTAMENTARY PROVISION IS THE
SOLE BASIS FOR THE GEORGIA COURTS'  HOLDING THAT BACONSFIELD MUST
REVERT TO SENATOR BACON'S HEIRS.  THE COURT'S FINDING THAT IT IS NOT
THE STATE OF GEORGIA BUT "A PRIVATE PARTY WHICH IS INJECTING THE
RACIALLY DISCRIMINATORY MOTIVATION"  INEXCUSABLY DISREGARDS THE STATE'S
ROLE IN ENACTING THE STATUTE WITHOUT WHICH SENATOR BACON COULD NOT HAVE
WRITTEN THE DISCRIMINATORY PROVISION. 

THIS, THEN, IS NOT A CASE OF PRIVATE DISCRIMINATION.  IT IS RATHER
DISCRIMINATION IN WHICH THE STATE OF GEORGIA IS "SIGNIFICANTLY
INVOLVED," AND ENFORCEMENT OF THE REVERTER IS THEREFORE
UNCONSTITUTIONAL.  CF. BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S.
715 (1961); ROBINSON V. FLORIDA, 378 U.S. 153 (1964). 

I WOULD REVERSE THE JUDGMENT OF THE SUPREME COURT OF GEORGIA. 

JAMES M. NABRIT III ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEF WERE WILLIAM H. ALEXANDER, JACK GREENBERG, CHARLES L. BLACK,
JR., AND ANTHONY G. AMSTERDAM. 

FRANK C. JONES ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS CHARLES M. CORK. 

DEPUTY SOLITICOR GENERAL CLAIBORNE, BY SPECIAL LEAVE OF COURT,
ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS CURIAE URGING
REVERSAL. 
..END :










BREEN V. SELECTIVE SERVICE BOARD, 396 U.S. 460 


       BREEN V. SELECTIVE SERVICE LOCAL BOARD NO. 16 ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 65.  ARGUED NOVEMBER 19, 1969-- DECIDED JANUARY 26,

1970 


PETITIONER, AN UNDERGRADUATE STUDENT WITH A STUDENT DEFERMENT,
SURRENDERED HIS DRAFT REGISTRATION CARD, SOLELY TO PROTEST THE WAR IN
VIETNAM, AT A PUBLIC GATHERING.  HIS LOCAL DRAFT BOARD DECLARED HIM
"DELINQUENT" FOR FAILING TO HAVE THE CARD IN HIS POSSESSION, AND
RECLASSIFIED HIM I-A (AVAILABLE FOR MILITARY SERVICE).  HE FILED THIS
SUIT IN THE DISTRICT COURT SEEKING TO ENJOIN POSSIBLE INDUCTION INTO
THE ARMED FORCES, ON THE GROUND THAT HIS DELINQUENCY RECLASSIFICATION
WAS INVALID.  THE RESPONDENT LOCAL BOARD MOVED TO DISMISS FOR WANT OF
JURISDICTION, RELYING ON SEC. 10(B)(3) OF THE MILITARY SELECTIVE
SERVICE ACT OF 1967, WHICH PROVIDES THAT THERE SHALL BE NO PRE
INDUCTION JUDICIAL REVIEW OF A REGISTRANT'S CLASSIFICATION OR
PROCESSING, SUCH REVIEW BEING LIMITED TO A DEFENSE IN A CRIMINAL
PROSECUTION.  THE DISTRICT COURT GRANTED THE MOTION TO DISMISS AND THE
COURT OF APPEALS AFFIRMED.  HELD: 

1.  SECTION 10(B)(3) OF THE ACT DOES NOT BAR PRE-INDUCTION JUDICIAL
REVIEW OF PETITIONER'S DELINQUENCY RECLASSIFICATION WHICH DEPRIVED HIM
OF A DEFERMENT TO WHICH HE WAS ENTITLED UNDER THE ACT.  OESTERICH V.
SELECTIVE SERVICE BOARD, 393 U.S. 233.  PP. 463-468. 

2.  SECTION 6(H)(1) OF THE ACT MAKES UNDERGRADUATE STUDENT
DEFERMENTS MANDATORY WHERE THE STUDENT, AS HERE, HAS MET THE STATUTORY
CRITERIA, AND THE REFERENCE IN THAT SECTION TO "RULES AND REGULATIONS"
ONLY AUTHORIZES SUCH ADDITIONAL ADMINISTRATIVE PROCEDURES AS NECESSARY
TO ENSURE THAT QUALIFIED STUDENTS ARE GIVEN DEFERMENT.  P. 464. 

3.  CONGRESS DID NOT AUTHORIZE INDUCTION BY LOCAL BOARDS AS A
PENALTY FOR VIOLATIONS OF ADMINISTRATIVE REGULATIONS.  GUTKNECHT V.
UNITED STATES, ANTE, P. 295.  PP. 465-466. 

4.  IN THE CONTEXT OF THIS CASE THERE IS NO MEANINGFUL DISTINCTION
BETWEEN "EXEMPTION" AND "DEFERMENT," AND A REGISTRANT WITH EITHER TYPE
OF CLASSIFICATION CANNOT BE INDUCTED.  PP. 466-467. 

406 F.2D 636, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION THE COURT. 

THIS CASE RAISES A QUESTION CONCERNING THE RIGHT OF A YOUNG MAN
ORDERED TO REPORT FOR INDUCTION INTO THE ARMED FORCES TO CHALLENGE THE
LEGALITY OF THAT ORDER PRIOR TO REPORTING FOR DUTY.  PETITIONER BREEN,
WHILE ENROLLED IN THE BERKLEE SCHOOL OF MUSIC IN BOSTON, MASSACHUSETTS,
WAS GIVEN A II-S STUDENT CLASSIFICATION BY HIS LOCAL DRAFT BOARD, AND
DEFERRED FROM MILITARY SERVICE PURSUANT TO THE PROVISIONS OF THE
MILITARY SELECTIVE SERVICE ACT OF 1967, 81 STAT. 100, 50 U.S.C. APP.
451 ET SEQ. (1964 ED. AND SUPP. IV).  ACCORDING TO AN AGREED
STIPULATION OF FACTS, IN NOVEMBER 1967 HE SURRENDERED HIS DRAFT
REGISTRATION CARD TO A MINISTER AT A PUBLIC GATHERING "FOR THE SOLE
PURPOSE OF PROTESTING UNITED STATES INVOLVEMENT IN THE WAR IN
VIETNAM."  SHORTLY THEREAFTER HIS LOCAL DRAFT BOARD DECLARED HE WAS
"DELINQUENT" FOR FAILING TO HAVE HIS DRAFT CARD IN HIS POSSESSION AND
AT THE SAME TIME RECLASSIFIED HIM I-A-- AVAILABLE FOR MILITARY
SERVICE.  /1/  HE APPEALED THIS RECLASSIFICATION TO THE APPROPRIATE
SELECTIVE SERVICE APPEAL BOARD, AND WHILE THAT APPEAL WAS PENDING FILED
THIS SUIT IN THE UNITED STATES DISTRICT COURT IN FEBRUARY 1968, SEEKING
AN INJUNCTION AGAINST ANY POSSIBLE INDUCTION INTO THE ARMED FORCES ON
THE GROUND THAT HIS DELINQUENCY RECLASSIFICATION WAS INVALID.  THE
RESPONDENT LOCAL BOARD MOVED TO DISMISS THE SUIT FOR WANT OF
JURISDICTION, RELYING ON SECL 10(B)(3) OF THE ACT WHICH PROVIDES THAT: 

"NO JUDICIAL REVIEW SHALL BE MADE OF THE CLASSIFICATION OR
PROCESSING OF ANY REGISTRANT BY LOCAL BOARDS, APPEAL BOARDS, OR THE
PRESIDENT, EXCEPT AS A DEFENSE TO A CRIMINAL PROSECUTION INSTITUTED
UNDER SECTION 12 OF THIS TITLE, AFTER THE REGISTRANT HAS RESPONDED
EITHER AFFIRMATIVELY OR NEGATIVELY TO AN ORDER TO REPORT FOR
INDUCTION.  . . . " /2/  50 U.S.C. APP. 460(B)(3) (1964 ED., SUPP.
IV).  THE DISTRICT COURT GRANTED THE MOTION TO DISMISS AND BREEN
APPEALED THAT DECISION TO THE COURT OF APPEALS.  /3/  WHILE THE APPEAL
WAS PENDING, WE RENDERED OUR DECISION IN OESTEREICH V. SELECTIVE
SERVICE BD., 393 U.S. 233 (1968), HOLDING THAT SEC. 10(B)(3) DID NOT
BAR PRE-INDUCTION JUDICIAL REVIEW IN THE CIRCUMSTANCES PRESENTED IN
THAT CASE.  ALTHOUGH BREEN ARGUED THAT OESTEREICH CONTROLLED HIS OWN
CASE, THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S DISMISSAL OF
THE SUIT, WITH ONE JUDGE DISSENTING, HOLDING THAT OESTEREICH DID NOT
COVER THIS CASE AND SEC. 10(B)(3) THEREFORE REQUIRED DISMISSAL OF THE
SUIT.  406 F.2D 636 (C.A. 2D CIR. 1969).  WE GRANTED A PETITION FOR
CERTIORARI, 394 U.S. 997 (1969), AND, BECAUSE WE CONCLUDE THAT
OESTEREICH DOES CONTROL THIS CASE, WE REVERSED THE JUDGMENT OF THE
COURT OF APPEALS. 

IN OESTEREICH A STUDENT PREPARING FOR THE MINISTRY SURRENDERED HIS
DRAFT REGISTRATION CARD IN PROTEST AGAINST THE WAR IN VIETNAM AND WAS
RECLASSIFIED AS A "DELINQUENT."  HE THEN FILED SUIT SEEKING TO ENJOIN
HIS INDUCTION, CLAIMING THAT HE WAS BEING INDUCTED CONTRARY TO THE
CLEAR STATUTORY REQUIREMENT THAT STUDENTS PREPARING FOR THE MINISTRY
"SHALL BE EXEMPT FROM TRAINING AND SERVICE" UNDER THE ACT, 50 U.S.C.
APP. 456(G).  WE HELD IN THAT CASE THAT SINCE CONGRESS HAD
UNAMBIGUOUSLY SAID THAT STUDENTS PREPARING FOR THE MINISTRY WERE NOT TO
BE DRAFTED AND, SINCE THERE WAS NO INDICATION IN THE STATUTE THAT SUCH
EXEMPTIONS COULD BE DENIED FOR "DELINQUENCY," OESTEREICH'S INDUCTION
WAS UNLAWFUL AND IN SUCH A CASE SEC. 10(B)(3) WOULD NOT BE INTERPRETED
TO BAR PRE-INDUCTION JUDICIAL REVIEW AND THEREBY FORCE THE REGISTRANT
TO SUBMIT TO AN ILLEGAL INDUCTION OR RISK THE POSSIBILITY OF A CRIMINAL
PROSECUTION TO REGAIN HIS EXEMPT STATUS. 

IN THE PRESENT CASE PETITIONER BREEN ARGUES THAT HE, LIKE
OESTEREICH, SHOULD NOT BE INDUCTED AND HE RELIES ON SEC. 6(H)(1) OF THE
ACT, WHICH PROVIDES THAT: 

     "EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH, THE PRESIDENT

  SHALL, UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE,

  PROVIDE FOR THE DEFENDANT FROM TRAINING AND SERVICE IN THE ARMED

  FORCES OF PERSONS SATISFACTORILY PURSUING A FULL-TIME COURSE OF

  INSTRUCTION AT A COLLEGE, UNIVERSITY, OR SIMILAR INSTITUTION OF

  LEARNING AND WHO REQUEST SUCH DEFERMENT.  50 U.S.C. APP.

  456(H)(1) (1964 ED.,SUPP.  IV). 

IN HIS COMPLAINT BREEN ALLEGED THAT HE WAS A 20-YEAR-OLD STUDENT AND
ARGUED THAT HE WAS CLEARLY QUALIFIED FOR A STUDENT DEFERMENT.  THE
GOVERNMENT HAS NEVER CONTESTED BREEN'S FACTUAL ALLEGATIONS CONCERNING
HIS STUDENT STATUS, NOR HAS IT ARGUED THAT HE IS NOT QUALIFIED FOR SUCH
A DEFERMENT FOR ANY REASON EXCEPT THE ALLEGED "DELINQUENCY."  AS IN
OESTEREICH, WE DO NOT FIND ANY INDICATION THAT CONGESS INTENDED TO
ALLOW THE DRAFT BOARDS TO DEPRIVE OTHERWISE QUALIFIED STUDENTS OF THEIR
DEFERMENTS FOR THE REASONS RELIED UPON IN THIS CASE. 

IN CONCLUDING THAT OESTEREICH DID NOT CONTROL THIS CASE, THE COURT
OF APPEALS FELT THAT THE REFERENCE IN SEC. 6(H)(1) TO "SUCH RULES AND
REGULATIONS AS (THE PRESIDENT) MAY PRESCRIBE" WAS AN INDICATION THAT
CONGRESS AUTHORIZED REVOCATION OF STUDENT DEFERMENTS FOR VIOLATIONS OF
THE DELINQUENCY REGULATIONS.  406 F.2D, AT 638.  THAT CONCLUSION MUST
BE REJECTED FOR SEVERAL REASONS.  THE EXPLICIT LANGUAGE OF THE ACT
PROVIDES THAT THE PRESIDENT "SHALL" PROVIDE FOR THE DEFERMENT OF
UNDERGRADUATE STUDENTS EXCEPT AS OTHERWISE PROVIDED BY THE TERMS OF THE
ACT ITSELF, AND CONGRESS THEN SET FORTH THE SPECIFIC CONDITIONS THAT A
STUDENT MUST MEET TO QUALIFY FOR SUCH A DEFERMENT.  /4/  THE REFERENCE
TO "RULES AND REGULATIONS" IS CLEARLY INTENDED ONLY TO AUTHORIZE SUCH
ADDITIONAL ADMINISTRATIVE PROCEDURES AS THE PRESIDENT MAY FIND
NECESSARY TO INSURE THAT ALL QUALIFIED STUDENTS ARE GIVEN THE DEFERMENT
THAT CONGRESS PROVIDED IN SEC. 6.  THERE IS NOTHING IN THE LANGUAGE OF
THE ACT ITSELF THAT INDICATES A CONGRESSIONAL DESIRE TO ALLOW THE
PRESIDENT TO ADD TO OR SUBTRACT FROM THE FACTORS SPECIFIED IN THE
STATUTE FOR DETERMINING WHEN STUDENTS WOULD BE DEFERRED.  /5/  THE
LEGISLATIVE HISTORY OF SEC. 6(H)(1) CLEARLY INDICATES THAT CONGRESS
INTENDED THAT ONLY THE CONDITIONS SPECIFIED IN THAT SECTION NEED BY MET
TO WARRANT A STUDENT DEFERMENT.  PRIOR TO THE 1967 ACT THE DRAFT LAW
STATED THAT STUDENT DEFERMENTS WERE PROVIDED ONLY ACCORDING TO
PRESIDENTIAL REGULATION AND IN PRACTICE SUCH DEFERMENTS WERE SUBJECT TO
THE DISCRETION OF THE LOCAL DRAFT BOARDS.  /6/  THE COMMITTEE REPORTS
AND FLOOR DEBATES ON THE 1967 ACT SHOW THAT A PRIMARY PURPOSE OF THE
AMENDMENTS WAS TO ELIMINATE THIS LOCAL OPTION AND PROVIDE CLEAR,
UNIFORM STANDARDS FOR UNDERGRADUATE STUDENT DEFEREMENTS.  /7/  WHEN
CONGRESS THUS ACTED TO REPLACE DISCRETIONARY STANDARDS WITH EXPLICIT
REQUIREMENTS FOR STUDENT DEFEREMENTS, IT DID NOT SPECIFICALLY PROVIDE
OR IN ANY WAY INDICATE THAT SUCH DEFERRED STATUS COULD BE DENIED
BECAUSE THE REGISTRANT FAILED TO POSSESS HIS REGISTRATION CERTIFICATE. 
/8/  FINALLY, ANY CONTENTION THAT "DELINQUENCY" INDUCTION IS PROPER IN
THIS CASE MUST BE REJECTED FOR THE REASONS SET FORTH IN OUR DECISION IN
GUTKNECHT V. UNITED STATES, ANTE, P. 295, HOLDING THAT INDUCTION
PURSUANT TO THE DELINQUENCY REGULATIONS HAS NOT BEEN AUTHORIZED BY
CONGRESS. 

THE ATTORNEY GENERAL ADVANCES ANOTHER ARGUMENT FOR DISTINGUISHING
THIS CASE FROM OESTEREICH, SUPRA.  HE POINTS OUR THAT OESTEREICH MET
THE REQUIREMENTS FOR A STATUTORY "EXEMPTION" FROM MILITARY SERVICE,
WHILE BREEN IS AT BEST QUALIFIED ONLY FOR A STATUTORY "DEFERMENT."  ON
THE BASIS OF THIS OBSERVATION HE URGES THAT THE PROVISIONS OF SEC.
10(B)(3) PRECLUDE PRE-INDUCTION JUDICIAL REVIEW IN ALL CASES OF
DEFERMENTS AND THAT OESTEREICH PROVIDES AN EXCEPTION ONLY IN CERTAIN
CASES WHERE AN EXEMPTION IS CLAIMED.  WE FAIL TO SEE ANY RELEVANT
PRACTICAL OR LEGAL DIFFERENCES BETWEEN EXEMPTIONS AND DEFERMENTS.  THE
EFFECT OF EITHER TYPE OF CLASSIFICATION IS THAT THE REGISTRANT CANNOT
BE INDUCTED AS LONG AS HE REMAINS SO CLASSIFIED.  CONGRESS HAS
SPECIFICALLY SAID THAT THE ONLY PERSONS WHO MAY BE INDUCTED INTO THE
ARMED FORCES ARE THOSE "WHO ARE LIABLE FOR SUCH TRAINING AND SERVICE
AND WHO AT THE TIME OF SELECTION ARE REGISTERED AND CLASSIFIED, BUT NOT
DEFERRED OR EXEMPTED."  50 U.S.C. APP. 455(A)(1) (1964 ED. SUPP. IV). 
/9/  THUS IT IS CLEAR THAT THE CRUCIAL DISTINCTION IN DRAFT
CLASSIFICATIONS IS BETWEEN INDIVIDUALS PRESENTLY SUBJECT TO INDUCTION
AND THOSE WHO ARE NOT SO SUBJECT, EITHER BECAUSE OF DEFERMENT OR
EXEMPTION. 

THE ATTORNEY GENERAL ALSO ARGUES THAT A RATIONAL DISTINCTION EXISTS
IN THE STATUTORY SCHEME BETWEEN DEFERMENTS WHICH MERELY POSTPONE THE
TIME WHEN A REGISTRANT WILL SERVE AND EXEMPTIONS WHICH PLACE THE
REGISTRANT "OUTSIDE THE MANPOWER POOL."  BRIEF FOR THE RESPONDENTS 20
21.  A CAREFUL READING OF THE ENTIRE ACT INDICATES THAT NO SUCH
CONSISTENT DISTINCTION IS PRESERVED.  CONGRESS HAS PROVIDED THAT "(NO .
. . EXEMPTION OR DEFERMENT . . . SHALL CONTINUE AFTER THE CAUSE
THEREFOR CEASES TO EXIST."  50 U.S.C. APP. 456(K).  MANY OF THE
"EXEMPTIONS" ARE NOT ABSOLUTE, AS THE ATTORNEY GENERAL IMPLIES, BUT
CONDITIONAL ON CERTAIN FACTORS.  THUS AN EXEMPT MINISTERIAL STUDENT
LIKE OESTEREICH WILL LOSE THAT EXEMPT STATUS IF HE WITHDRAWS FROM STUDY
IN PREPARATION FOR THE MINISTRY.  SIMILARLY EXEMPT VETERANS CAN BE
INDUCTED INTO THE ARMED FORCES IF CONGRESS DECLARES A WAR OR NATIONAL
EMERGENCY.  50 U.S.C. APP. 456(B).  ON THE OTHER HAND THERE IS
ABSOLUTELY NO ASSURANCE THAT AN INDIVIDUAL WHO IS SIMPLY DEFERRED WILL
ONLY HAVE HIS MILITARY OBLIGATION POSTPONED.  SO LONG AS A REGISTRANT
REMAINS IN A DEFERRED CLASSIFICATION HE CANNOT BE INDUCTED, AND
DEFERMENT PAST THE MAXIMUM AGE OF DRAFT LIABILITY WOULD EFFECTIVELY
EXEMPT THE REGISTRANT FROM COMPULSORY MILITARY SERVICE.  ALTHOUGH A
REGISTRANT LIKE BREEN CANNOT BE DEFERRED AS AN UNDERGRADUATE STUDENT
PAST HIS 24TH BIRTHDAY, /10/  HE MAY CONTINUE TO BE DEFERRED ON THE
BASIS OF EXTREME HARDSHIP TO DEPENDENTS OR EMPLOYMENT IN THE NATIONAL
INTEREST.  50 U.S.C. APP. 456(H)(1) (1964 ED., SUPP. IV).  THERE IS
THUS NO STATUTORY SCHEME TO PERMANENTLY EXEMPT CERTAIN INDIVIDUALS
WHILE ONLY DEFERRING SERVICE FOR OTHERS.  BOTH DEFERMENTS AND
EXEMPTIONS ACCOMPLISH THE SAME CONGRESSIONAL PURPOSE, THAT OF NOT
INDUCTING CERTAIN REGISTRANTS AT A PARTICULAR TIME. 

WE ARE CONSEQUENTLY UNABLE TO DISTINGUISH THIS CASE FROM
OESTEREICH.  IN BOTH SITUATIONS A DRAFT REGISTRANT WHO WAS REQUIRED BY
THE RELEVANT LAW NOT TO BE INDUCTED WAS IN FACT ORDERED TO REPORT FOR
MILITARY SERVICE.  IN BOTH CASES THE ORDER FOR INDUCTION INVOLVED A
"CLEAR DEPARTURE BY THE BOARD FROM ITS STATUTORY MANDATE," OESTEREICH,
SUPRA, AT 238, AND IN BOTH CASES SEC. 10(B)(3) OF THE ACT SHOULD NOT
HAVE BEEN CONSTRUED TO REQUIRE THE REGISTRANTS TO SUBMIT TO INDUCTION
OR RISK CRIMINAL PROSECUTION TO TEST THE LEGALITY OF THE INDUCTION
ORDER.  THE JUDGMENT BELOW IS REVERSED AND THE CASE REMANDED FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  THIS RECLASSIFICATION WAS UNDERTAKEN PURSUANT TO 32 CFR
1642.12. 

/2/  ALTHOUGH THIS PROVISION WOULD APPEAR TO PRECLUDE JUDICIAL
REVIEW BY HABEAS CORPUS AFTER THE REGISTRANT SUBMITTED TO INDUCTION, WE
HAVE ALREADY CONSTRUED THE STATUTE TO ALLOW SUCH REVIEW.  OESTEREICH V.
SELECTIVE SERVICE BD., 393 U.S. 233, 235, 238 (1968). 

/3/  DURING THE PENDENCY OF THAT APPEAL THE APPEAL BOARD UPHELD THE
RECLASSIFICATION AND THE LOCAL BOARD THEN ORDERED BREEN TO REPORT FOR
INDUCTION.  THE INDUCTION ORDER HAS BEEN STAYED PENDING DECISION IN
THIS CASE. 

/4/  THE ACT ALSO PROVIDES THAT STUDENT DEFERMENT STATUS MAY BE LOST
UNDER CERTAIN CONDITIONS. 

"A DEFERMENT GRANTED TO ANY PERSON UNDER (THIS PROVISION) SHALL
CONTINUE UNTIL SUCH PERSON COMPLETES THE REQUIREMENTS FOR HIS
BACCALAUREATE DEGREE, FAILS TO PURSUE SATISFACTORILY A FULL-TIME COURSE
OF INSTRUCTION, OR ATTAINS THE TWENTY-FOURTH ANNIVERSARY OF THE DATE OF
HIS BIRTH, WHICHEVER FIRST OCCURS."  50 U.S.C. APP. 456(H)(1) (1964
ED., SUPP. IV).  THERE IS NO CONTENTION RAISED HERE THAT BREEN HAS LOST
HIS DEFERRED STATUS FOR ANY OF THESE STATUTORY REASONS. 

/5/  THE ACT DOES ALLOW THE PRESIDENT TO RESTRICT STUDENT DEFERMENTS
ON A FINDING THAT THE NEEDS OF THE ARMED FORCES REQUIRE SUCH ACTION, 50
U.S.C. APP. 456(H)(1) (1964 ED., SUPP. IV), BUT HE HAS NOT MADE ANY
SUCH FINDING AT THIS TIME. 

/6/  SEE SELECTIVE SERVICE ACT OF 1948, SEC. 6(H), 62 STAT. 611, AS
AMENDED.  THE REGULATIONS PROMULGATED PURSUANT TO THIS AUTHORITY
PERMITTED STUDENT DEFERMENTS IN THE DISCRETION OF THE LOCAL BOARDS WITH
CERTAIN SUGGESTED GUIDELINES.  SEE 32 CFR 1622.25, 1622.25A (1967
ED.). 

/7/  H. R. REP. NO. 267, 90TH CONG., 1ST SESS., 25-26 (1967); H. R.
CONF. REP. NO. 346, 90TH CONG., 1ST SESS., REPRINTED IN U.S.C. CONG. &
ADMIN. NEWS, 90TH CONG., 1ST SESS., 1352-1356-1359 (1967); 113
CONG.REC.  14093, 14095, 16434 (1967). 

/8/  THE SUGGESTION THAT THE FLEETING REFERENCE TO "DELINQUENTS" IN
SEC. 6(H)(1) OF THE ACT, 50 U.S.C. APP. 456(H)(1) (1964 ED., SUPP. IV),
AUTHORIZES DELINQUENCY INDUCTIONS MUST BE REJECTED FOR THE REASONS SET
FORTH IN OESTEREICH, SUPRA, AT 236-237, AND IN GUTKNECHT V. UNITED
STATES, ANTE, AT 302.     /9/  THIS STATUTORY DIRECTIVE IS IMPLEMENTED
BY 32 CFR 1631.7. 

/10/  SEE N. 4, SUPRA. 

MR. JUSTICE HARLAN, CONCURRING. 

WHILE I FULLY AGREE WITH TODAY'S HOLDING THAT PRE-INDUCTION REVIEW
IS AVAILABLE TO THE PETITIONER HERE, AND SUBSCRIBE TO MUCH OF THE
COURT'S OPINION, I WOULD REST THE HOLDING ON A DIFFERENT FOOTING. 

THE COURT'S OPINION HERE, AS IN OESTEREICH V. SELECTIVE SERVICE BD.,
393 U.S. 233 (1968), APPEARS TO MAKE THE AVAILABILITY OF PRE-INDUCTION
REVIEW TURN ON THE LAWFULNESS OF THE DRAFT BOARD'S ACTION OR, TO PUT IT
ANOTHER WAY, ON THE CERTAINTY WITH WHICH THE REVIEWING COURT CAN
DETERMINE THAT THE REGISTRANT WOULD PREVAIL ON THE MERITS IF THERE WERE
SUCH JUDICIAL REVIEW OF HIS CLASSIFICATION.  ON THE OTHER HAND, UNDER
THE TEST PUT FORWARD IN MY SEPARATE OPINION IN OESTEREICH, 393 U.S.,AT
239-245, THE AVAILABILITY OF PRE-INDUCTION REVIEW TURNS, NOT ON WHAT
AMOUNTS TO AN ADVANCE DECISION ON THE MERITS, BUT RATHER ON THE NATURE
OF THE CHALLENGE BEING MADE. 

IN OESTEREICH, THE REGISTRANT SOUGHT PRE-INDUCTION REVIEW OF CLAIMS
THAT THE DELINQUINCY PROCEDURE EMPLOYED BY THE BOARD WAS "NOT
AUTHORIZED BY ANY STATUTE," WAS "INCONSISTENT WITH HIS STATUTORY
EXEMPTION," AND WAS "FACIALLY UNCONSTITUTIONAL," 393 U.S.,AT 239.  I
POINTED OUT THAT JUDICIAL SCRUTINY OF SUCH LEGAL CONTENTIONS, UNLIKE
THE REVIEW OF "FACTUAL AND DISCRETIONARY DECISIONS" PERTAINING TO A
BOARD'S CLASSIFICATION OF A PARTICULAR REGISTRANT, PRESENTED NO
"OPPORTUNITY FOR PROTRACTED DELAY" IN THE OPERATIONS OF THE SELECTIVE
SERVICE SYSTEM-- THE PRIMARY CONGRESSIONAL CONCERN IN ENACTING SEC.
10(B)(3), 393 U.S.,AT 241.  TO AVOID THE "SERIOUS CONSTITUTIONAL
PROBLEMS" IMPLICIT IN DEPRIVING A REGISTRANT OF "HIS LIBERTY WITHOUT
THE PRIOR OPPORTUNITY TO PRESENT TO ANY COMPETENT FORUM" HIS CLAIMS
THAT THE DELINQUENCY PROCEDURE WAS INVALID, 393 U.S.,AT 243, I
THEREFORE INTERPRETED SEC. 10(B)(3) NOT TO PRECLUDE PRE-INDUCTION
JUDICIAL REVIEW.  VIEWED FROM THE PERSPECTIVE OF MY OPINION IN
OESTEREICH, THIS CASE IS INDISTINGUISHABLE, FOR THE PETITIONER HERE, AS
IN OESTEREICH, MAKES LEGAL CHALLENGES TO THE DELINQUENCY PROCEDURE THAT
DO NOT REQUIRE REVIEW OF A FACTUAL AND DISCRETIONARY DECISION OF A
BOARD. 

AS TO THE MERITS OF PETITIONER'S CHALLENGES, I AGREE, FOR THE
REASONS STATED BY THE MAJORITY, THAT IT MAKES NO DIFFERENCE THAT
THROUGH THE OPERATION OF THE DELINQUENCY REGULATIONS BREEN LOST A II-S
STUDENT DEFERMENT WHEREAS OESTEREICH LOST A IV-D EXEMPTION AS A
DIVINITY STUDENT PREPARING FOR THE MINISTRY.  MORE GENERALLY, THE
DELINQUENCY REGULATIONS USED HERE HAVE NOW BEEN HELD TO BE UNAUTHORIZED
BY STATUTE, GUTKNECHT V. UNITED STATES, ANTE, P. 295. 

ON THIS BASIS, I CONCUR IN THE REVERSAL OF THE JUDGMENT BELOW. 

MR. JUSTICE BRENNAN, CONCURRING. 

IN OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S. 233 (1968), I
JOINED MR. JUSTICE STEWART'S DISSENT EXPRESSING THE VIEW THAT SEC.
10(B)(3) WAS DESIGNED TO PERMIT JUDICIAL REVIEW OF DRAFT CLASSIFICATION
ONLY IN CONNECTION WITH CRIMINAL PROSECUTIONS OR HABEAS CORPUS
PROCEEDINGS.  393 U.S.,AT 245.  BUT CONTINUED ADHERENCE TO THAT
CONSTRUCTION IS FORECLOSED BY THE COURT'S HOLDING IN THAT CASE THAT
SEC. 10(B)(3) DID NOT PRECLUDE PRE-INDUCTION JUDICIAL REVIEW OF THE
CASE OF A REGISTRANT ENTITLED TO A STATUTORY EXEMPTION.  THEREFORE,
BECAUSE I TOO "FAIL TO SEE ANY RELEVANT PRACTICAL OR LEGAL DIFFERENCES
BETWEEN EXEMPTIONS AND DEFERMENTS," I JOIN THE OPINION OF THE COURT. 

MR. JUSTICE STEWART, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING
IN PART. 

FOR THE REASONS EXPRESSED BY MR. JUSTICE BRENNAN, I JOIN THE OPINION
OF THE COURT INSOFAR AS IT HOLDS THAT THE DISTRICT COURT HAD
JURISDICTION TO ENTERTAIN THE PETITIONER'S SUIT AND SHOULD HAVE GRANTED
HIM THE INJUNCTION HE SOUGHT.  I DO NOT, HOWEVER, JOIN THE COURT'S
OPINION INSOFAR AS IT HOLDS THAT THE DELINQUENCY REGULATIONS HAVE NOT
BEEN AUTHORIZED BY CONGRESS.  SEE GUTKNECHT V. UNITED STATES, ANTE, P.
314 (CONCURRING IN JUDGMENT). 

EMANUEL MARGOLIS ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE LAWRENCE P. WEISMAN AND MELVIN L. WULF. 

ASSISTANT ATTORNEY GENERAL RUCKELSHAUS ARGUED THE CAUSE FOR
RESPONDENTS.  WITH HIM ON THE BRIEF WERE ATTORNEY GENERAL MITCHELL,
ASSISTANT ATTORNEY GENERAL WILSON, MORTON HOLLANDER, AND RALPH A.
FINE. 

GEORGE SOLL AND JOSEPH B. ROBINSON FILED A BRIEF FOR THE AMERICAN
JEWISH CONGRESS AS AMICUS CURIAE URGING REVERSAL. 
..END :




















GOLDSTEIN V. COX, 396 U.S. 471 


       GOLDSTEIN, AKA PIETRARU, ET AL. V. COX ET AL.

     APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK

        NO. 66.  ARGUED NOVEMBER 17, 1969-- DECIDED JANUARY 26,

1970 


AUTHORIZES THE SURROGATE TO ORDER AN ALIEN'S SHARE OF A NEW YORK ESTATE
PAID INTO COURT WHEN IT APPEARS THAT THE ALIEN "WOULD NOT HAVE THE
BENEFIT OR USE OR CONTROL OF THE MONEY OR PROPERTY" CONSTITUTING THE
SHARE.  APPELLANTS, WHO LIVE IN ROMANIA AND ARE BENEFICIARIES OF NEW
YORK DECEDENTS' ESTATES AND WHOSE SHARES WERE PAID INTO COURT FOR THEIR
BENEFIT UNDER SEC. 2218, FILED A COMPLAINT CHALLENGING ITS
CONSTITUTIONALITY AND SEEKING TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
AGAINST ITS OPERATION.  IN THE THREE-JUDGE DISTRICT COURT WHICH WAS
CONVENED, APPELLANTS MOVED FOR SUMMARY JUDGMENT, CONTENDING THAT UNDER
ZSCHERNIG V. MILLER, 389 U.S. 429, SEC. 2218 IS UNCONSTITUTIONAL ON ITS
FACE AND AS APPLIED, AND REQUESTING "THE RELIEF PRAYED FOR IN THE
COMPLAINT."  APPELLANTS FILED NO SEPARATE APPLICATION FOR A PRELIMINARY
INJUNCTION AND HAVE NOT URGED THE APPROPRIATENESS OF TEMPORARY RELIEF
FOR THE RELEASE OF THE COURT-HELD FUNDS.  THE DISTRICT COURT DENIED
SUMMARY JUDGMENT BUT DID NOT DISMISS THE COMPLAINT AS URGED BY
APPELLEES, SURROGATES OF SEVERAL NEW YORK COUNTIES.  APPELLANTS
APPEALED TO THIS COURT FROM THE ORDER DENYING SUMMARY JUDGMENT,
CLAIMING THAT THIS COURT HAS JURISDICTION BY VIRTUE OF 28 U.S.C. 1253,
WHICH IN PERTINENT PART PROVIDES FOR AN APPEAL "TO THE SUPREME COURT
FROM AN ORDER GRANTING OR DENYING . . . AN INTERLOCUTORY OR PERMANENT
INJUNCTION IN ANY CIVIL ACTION . . . REQUIRED BY AN ACT OF CONGRESS TO
BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES."  HELD:
THE ONLY INTERLOCUTORY ORDERS THAT THIS COURT HAS POWER TO REVIEW UNDER
SEC. 1253 ARE THOSE GRANTING OR DENYING PRELIMINARY INJUNCTIONS, AND
THEREFORE THIS COURT LACKS JURISDICTION TO REVIEW THE DISTRICT COURT'S
INTERLOCUTORY ORDER, WHICH INVOLVED NO QUESTION OF PRELIMINARY
INJUNCTIVE RELIEF.  PP. 475-479. 

299 F.SUPP.  1389, APPEAL, DISMISSED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE BENEFICIARIES OF NEW YORK DECEDENTS' ESTATES WHO LIVE
IN ROMANIA.  THEIR SHARES OF THESE ESTATES HAVE NOT BEEN DISTRIBUTED TO
THEM, BUT HAVE BEEN PAID INTO COURT FOR THEIR BENEFIT UNDER SEC. 2218
OF THE NEW YORK SURROGATE'S COURT PROCEDURE ACT.  SECTION 2218
AUTHORIZES THE SURROGATE TO ORDER AN ALIEN'S SHARE OF A NEW YORK ESTATE
PAID INTO COURT WHEN IT APPEARS THAT THE ALIEN "WOULD NOT HAVE THE
BENEFIT OR USE OR CONTROL OF THE MONEY OR OTHER PROPERTY" CONSTITUTING
THE SHARE.  /1/ 

IN 1966, APPELLANTS FILED A COMPLAINT IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, CHALLENGING WHAT IS NOW
SEC. 2218 ON THE GROUNDS THAT IT DENIED THEM DUE PROCESS AND EQUAL
PROTECTION, THAT IT UNCONSTITUTIONALLY INTRUDED UPON THE FEDERAL
GOVERNMENT'S CONDUCT OF FOREIGN RELATIONS, AND THAT IT CONFLICTED WITH
FEDERAL REGULATIONS PERMITTING THE PAYMENT OF FEDERAL FUNDS TO PERSONS
IN ROMANIA.  APPELLANTS PRAYED FOR BOTH TEMPORARY AND PERMANENT
INJUNCTIVE RELIEF AGAINST FURTHER OPERATION OF THE STATUTE, AND
THEREFORE REQUESTED THE INPANELING OF A THREE-JUDGE COURT.  A SINGLE
DISTRICT JUDGE DECLINED TO REQUEST A THREE-JUDGE COURT ON THE GROUND
THAT THE CONSTITUTIONAL QUESTIONS RAISED WERE FRIVOLOUS, AND THE COURT
OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  THIS COURT GRANTED
CERTIORARI, VACATED THE JUDGMENT, AND REMANDED THE CASE TO THE COURT OF
APPEALS FOR FURTHER CONSIDERATION IN THE LIGHT OF ZSCHERNIG V. MILLER,
389 U.S. 429, DECIDED THE SAME DAY.  389 U.S. 581 (1968).  ON REMAND,
THE COURT OF APPEALS REVERSED THE ORIGINAL ORDER OF THE DISTRICT COURT,
AND REMANDED THE CASE FOR CONSIDERATION BY A THREE-JUDGE COURT.  391
F.2D 586 (C.A. 2D CIR. 1968). 

APPELLANTS THEN MOVED FOR SUMMARY JUDGMENT, URGING THAT SEC. 2218
WAS UNCONSTITUTIONAL, EITHER ON ITS FACE OR AS APPLIED, UNDER THE
PRINCIPLES OF ZSCHERNIG V. MILLER, SUPRA.  IN THEIR MOTION THEY
REQUESTED "THE RELIEF DEMANDED IN THE COMPLAINT."  THEY ACCOMPANIED
THEIR MOTION WITH AN AFFIDAVIT, LARGELY CONSISTING OF A MEMORANDUM OF
LAW ARGUING THAT THE APPLICATION OF SEC. 2218 BY THE NEW YORK COURTS
RAN AFOUL OF ZSCHERNIG. 

APPELLEES, SURROGATES OF SEVERAL NEW YORK COUNTIES, OPPOSED THE
MOTION FOR SUMMARY JUDGMENT AND FURTHER JUDGMENT AND FURTHER REQUESTED
THAT THE ACTION BE DISMISSED.  IN THEIR ACCOMPANYING AFFIDAVIT, THEY
ARGUED THAT SEC. 2218 WAS CONSTITUTIONAL ON ITS FACE AND THAT THERE WAS
AT LEAST A TRIABLE ISSUE OF FACT WHETHER IT WAS BEING CONSTITUTIONALLY
APPLIED. 

THE DISTRICT COURT DENIED SUMMARY JUDGMENT BUT DID NOT DISMISS THE
ACTION.  299 F.SUPP.  1389 (D.C.S.D.N.Y. 1968).  IN ITS OPINION IT HELD
THAT SEC. 2218 WAS NOT UNCONSTITUTIONAL ON ITS FACE UNDER ZSCHERNIG,
AND THAT THE ONLY REPORTED POST-ZSCHERNIG CONSTRUCTION OF THE STATUTE,
MATTER OF LEIKIND, 22 N.Y.2D 346, 239 N.E.2D 550 (1968), APP. DOCKETED,
NO. 68, O.T. 1969, DID NOT SHOW UNCONSTITUTIONAL APPLICATION. 

FROM THE ORDER DENYING SUMMARY JUDGMENT, APPELLANTS TOOK AN APPEAL
TO THIS COURT, CLAIMING THAT WE HAD JURISDICTION UNDER 28 U.S.C. 1253,
WHICH PROVIDES: 

     "EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO

THE SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE

  AND HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY

  CIVIL ACTION, SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS

  TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

APPELLEES DID NOT OPPOSE JURISDICTION, BUT RATHER FILED A MOTION TO
AFFIRM.  WE NOTED PROBABLE JURISDICTION, 394 U.S. 996 (1969), AND
RECEIVED BRIEFS AND HEARD ARGUMENT CONFINED TO THE MERITS.  FURTHER
EXAMINATION OF THE CASE SINCE ORAL ARGUMENT HAS FOR THE FIRST TIME
RAISED THE QUESTION OF OUR JURISDICTION, AND WE HAVE CONCLUDED THAT WE
LACK JURISDICTION OF THE APPEAL. 

A PRELIMINARY QUESTION IS WHETHER THE DISTRICT COURT'S ORDER DENYING
SUMMARY JUDGMENT TO A PLAINTIFF WHO HAS REQUESTED INJUNCTIVE RELIEF IS
"AN ORDER . . . DENYING . . . AN . . . INJUNCTION" WITHIN THE MEANING
OF SEC. 1253.  IN CONSTRUING THE ANALOGOUS PROVISION GIVING THE COURTS
OF APPEALS JURISDICTION TO HEAR APPEALS FROM INTERLOCUTORY ORDERS
GRANTING OR DENYING INJUNCTIONS, 28 U.S.C. 1292(A)(1), THIS COURT HAS
RULED THAT A DENIAL OF SUMMARY JUDGMENT IS NOT AN APPEALABLE ORDER
DENYING AN INJUNCTION, AT LEAST WHERE THE DENIAL IS BASED UPON THE
EXISTENCE OF A TRIABLE ISSUE OF FACT.  SWITZERLAND ASSN. V. HORNE'S
MARKET, 385 U.S. 23 (1966).  /2/  HOWEVER WE NEED NOT DECIDE WHETHER
THE SAME TREATMENT SHOULD BE GIVEN TO DENIALS OF SUMMARY JUDGMENT UNDER
SEC. 1253, FOR WE CONCLUDE THAT THE ONLY INTERLOCUTORY ORDERS THAT WE
HAVE POWER TO REVIEW UNDER THAT PROVISION ARE ORDERS GRANTING OR
DENYING PRELIMINARY INJUNCTIONS.  SINCE IN OUR VIEW THE DISTRICT COURT
HERE DECIDED NO QUESTION OF PRELIMINARY INJUNCTIVE RELIEF, WE CANNOT
REVIEW ITS ORDER. 

DISTRICT COURTS, 28 U.S.C. 2281-2284 (A COLLECTIVITY HEREINAFTER
REFERRED TO AS THE THREE-JUDGE COURT ACT), DERIVES FROM SEC. 266 OF THE
JUDICIAL CODE OF 1911, 36 STAT. 1162, WHICH IN TURN DERIVED FROM SEC.
17 OF THE MANN-ELKINS ACT OF 1910, 36 STAT. 557.  AS ORIGINALLY
ENACTED, THE THREE-JUDGE COURT ACT REQUIRED THAT NO INTERLOCUTORY
INJUNCTION RESTRAINING THE OPERATION OF ANY STATE STATUTE ON
CONSTITUTIONAL GROUNDS COULD BE ISSUED, EXCEPT BY A THREE-JUDGE COURT,
AND PROVIDED THAT "(AN APPEAL MAY BE TAKEN DIRECTLY TO THE SUPREME
COURT OF THE UNITED STATES FROM THE ORDER GRANTING OR DENYING . . . AN
INTERLOCUTORY INJUNCTION IN SUCH CASE."  36 STAT. 557.  THE ACT GREW
OUT OF THE PUBLIC FUROR OVER WHAT WAS FELT TO BE THE ABUSE BY FEDERAL
DISTRICT COURTS OF THEIR INJUNCTIVE POWERS IN CASES INVOLVING STATE
ECONOMIC AND SOCIAL LEGISLATION.  WHILE BROAD AND RADICAL PROPOSALS
WERE MADE TO DEAL WITH THE PROBLEM, INCLUDING PROPOSALS TO DEPRIVE THE
FEDERAL COURTS OF ALL JURISDICTION TO ENJOING STATE OFFICERS, CONGRESS
COMPROMISED ON A PROVISION THAT WOULD DEAL WITH WHAT WAS FELT TO BE THE
WORST ABUSE-- THE ISSUANCE OF TEMPORARY RESTRAINING ORDERS AND
PRELIMINARY INJUNCTIONS AGAINST STATE STATUTES, EITHER EX PARTE OR
MERELY UPON AFFIDAVITS, AND SUBJECT TO LIMITED AND INEFFECTIVE
APPELLATE REVIEW.  SEE PHILLIPS V. UNITED STATES, 312 U.S. 246, 250
(1941); HUTCHESON, A CASE FOR THREE JUDGES, 47 HARV.L.REV.  795, 803
810 (1934); NOTE, THE THREE-JUDGE DISTRICT COURT AND APPELLATE REVIEW,
49 VA.L.REV.  538, 539-543 (1963). 

UNTIL 1925, THE ACT REQUIRED A THREE-JUDGE COURT ONLY ON APPLICATION
FOR AN INTERLOCUTORY (OR, AS WE WOULD SAY, PRELIMINARY) INJUNCTION.  IN
THAT YEAR, THE ACT WAS AMENDED TO CARRY THE THREE-JUDGE REQUIREMENT
FORWARD TO THE ISSUANCE OF A PERMANENT INJUNCTION, 43 STAT. 938, "IN
ORDER TO AVOID THE ANOMALOUS RESULT OF HAVING A SINGLE JUDGE REVIEW THE
DECREE OF THREE JUDGES AT THE FINAL HEARING."  NOTE, 49
VA.L.REV.,SUPRA, AT 543.  THE PROVISION GOVERNING APPEAL TO THIS COURT
WAS CORRESPONDINGLY AMENDED TO ALLOW DIRECT APPEAL FROM "A FINAL DECREE
GRANTING OR DENYING A PERMANENT INJUNCTION.  . . . "  43 STAT. 938. 

THUS, AS OF 1925, THE PROVISIONS OF THE THREE-JUDGE COURT ACT
RELATING TO APPEAL TO THIS COURT, SET OUT IN THE JUDICIAL CODE, AS
AMENDED, READ AS FOLLOWS: 

"AN APPEAL MAY BE TAKEN DIRECTLY TO THE SUPREME COURT OF THE UNITED
STATES FROM THE ORDER GRANTING OR DENYING, AFTER NOTICE AND HEARING, AN
INTERLOCUTORY INJUNCTION IN SUCH CASE.  . . . "  36 STAT. 557. 

     " . . . AND A DIRECT APPEAL TO THE SUPREME COURT MAY BE TAKEN

  FROM A FINAL DECREE GRANTING OR DENYING A PERMANENT INJUNCTION IN

  SUCH SUIT."  43 STAT. 938. 

AS CLEARLY AS LANGUAGE CAN, THIS LANGUAGE CONFINED THIS COURT'S REVIEW
OF THREE-JUDGE COURT ACTION TO (1) FINAL JUDGMENTS GRANTING OR DENYING
PERMANENT INJUNCTIONS, AND (2) INTERLOCUTORY ORDERS GRANTING OR DENYING
PRELIMINARY INJUNCTIONS. 

IN 1948, THE PRESENT JUDICIAL CODE WAS ENACTED, INCLUDING SEC. 1253
AS IT NOW STANDS.  AS THE LANGUAGE NOW READS, THE COURT HAS APPELLATE
JURISDICTION OVER ANY THREE-JUDGE COURT ORDER "GRANTING OR DENYING . .
. AN INTERLOCUTORY OR PERMANENT INJUNCTION."  ON ITS FACE, THIS
LANGUAGE IS SUBJECT TO THE CONSTRUCTION THAT INTERLOCUTORY ORDERS
DENYING PERMANENT AS WELL AS PRELIMINARY INJUNCTIONS CAN BE APPEALED TO
THIS COURT.  HOWEVER, SUCH A CONSTRUCTION WOULD INVOLVE AN EXPANSION OF
THIS COURT'S MANDATORY APPELLATE JURISDICTION OVER THAT GRANTED BY THE
CLEAR LANGUAGE OF THE PRIOR STATUTE.  THE REVISER'S NOTE TO SEC. 1253
INDICATES NO INTENT TO MAKE SUCH A SUBSTANTIVE CHANGE; INDEED, IT
REFERS TO THE SECTION AS MERELY A CONSOLIDATION OF PRIOR PROVISIONS IN
TITLE 28, THEMSELVES DERIVED FROM THE STATUTE AS ADOPTED AND AMENDED BY
CONGRESS.  /3/ 

THIS COURT HAS MORE THAN ONCE STATED THAT ITS JURISDICTION UNDER THE
THREE-JUDGE COURT ACT IS TO BE NARROWLY CONSTRUED SINCE "ANY LOOSE
CONSTRUCTION OF THE REQUIREMENTS OF (THE ACT) WOULD DEFEAT THE PURPOSES
OF CONGRESS . . . TO KEEP WITHIN NARROW CONFINES OUR APPELLATE
DOCKET."  PHILLIPS V. UNITED STATES, SUPRA, AT 250.  SEE STAINBACK V.
MO HOCK KE LOK PO, 336 U.S. 368, 375 (1949); MOORE V. FIDELITY &
DEPOSIT CO., 272 U.S. 317, 321 (1926).  THAT CANON OF CONSTRUCTION MUST
BE APPLIED WITH REDOUBTED VIGOR WHEN THE ACTION SOUGHT TO BE REVIEWED
HERE IS AN INTERLOCUTORY ORDER OF A TRIAL COURT.  IN THE ABSENCE OF
CLEAR AND EXPLICIT AUTHORIZATION BY CONGRESS, PIECEMEAL APPELLATE
REVIEW IS NOT FAVORED, SWITZERLAND ASSN. V. HORNE'S MARKET, SUPRA, AT
24, AND THIS COURT ABOVE ALL OTHERS MUST LIMIT ITS REVIEW OF
INTERLOCUTORY ORDERS.  HAMILTON SHOE CO. V. WOLF BROTHERS, 240 U.S.
251, 258 (1916).  IN LIGHT OF THESE FACTORS, AND THE HISTORY OF THE
STATUTE AS SET OUT ABOVE, WE CANNOT BUT CONCLUDE THAT OUR JURISDICTION
OVER INTERLOCUTORY ORDERS UNDER SEC. 1253 IS CONFINED TO ORDERS
GRANTING OR DENYING A PRELIMINARY INJUNCTION. 

AS WE READ THE RECORD, THIS IS NOT SUCH AN ORDER.  APPELLANTS DID,
IN THEIR ORIGINAL COMPLAINT, PRAY FOR PRELIMINARY AS WELL AS PERMANENT
INJUNCTIVE RELIEF.  AND IN MOVING FOR SUMMARY JUDGMENT, THEY REQUESTED
"THE RELIEF DEMANDED IN THE COMPLAINT."  HOWEVER, THEY TOOK NO
PRACTICAL STEP TOWARD OBTAINING SUCH RELIEF.  THEY FILED NO SEPARATE
APPLICATION FOR A PRELIMINARY INJUNCTION.  IN NONE OF THEIR PAPERS, IN
THE DISTRICT COURT OR IN THIS COURT, HAVE THEY URGED THE
APPROPRIATENESS OF TEMPORARY RELIEF.  THE DISTRICT COURT IN ITS OPINION
IN NO WAY ADVERTED TO THE POSSIBILITY OF SUCH RELIEF BEING GRANTED. 
INDEED, IN THE NATURE OF THE CASE, PRELIMINARY INJUNCTIVE RELIEF COULD
NEVER HAVE BEEN A PRACTICAL POSSIBILITY.  APPELLANTS ARE SEEKING THE
RELEASE OF FUNDS HELD IN COURT IN NEW YORK TO BENEFICIARIES OUTSIDE THE
JURISDICTION OF THE UNITED STATES.  ANY INJUNCTION GRANTING RELIEF OF
THIS SORT MUST NECESSARILY HAVE BEEN FINAL IN ITS EFFECT, AND COULD
HARDLY HAVE BEEN AWARDED IN THE ABSENCE OF A FINAL DETERMINATION ON THE
MERITS IN APPELLANTS' FAVOR.  SINCE THE ORDER HERE IN QUESTION IS AN
INTERLOCUTORY ONE, AND IS NOT AN ORDER GRANTING OR DENYING A
PRELIMINARY INJUNCTION, WE MUST DISMISS THE APPEAL FROM THAT ORDER FOR
WANT OF JURISDICTION. 

              IT IS SO ORDERED. 

/1/  SECTION 2218 (SUPP. 1969), FORMERLY SEC. 269-A OF THE NEW YORK
SURROGATE'S COURT ACT, READS AS FOLLOWS: 

"1.  (A) WHERE IT SHALL APPEAR THAT AN ALIEN LEGATEE, DISTRIBUTEE OR
BENEFICIARY IS DOMICILED OR RESIDENT WITHIN A COUNTRY TO WHICH CHECKS
OR WARRANTS DRAWN AGAINST FUNDS OF THE UNITED STATES MAY NOT BE
TRANSMITTED BY REASON OF ANY EXECUTIVE ORDER, REGULATION OR SIMILAR
DETERMINATION OF THE UNITED STATES GOVERNMENT OR ANY DEPARTMENT OR
AGENCY THEREOF, THE COURT SHALL DIRECT THAT THE MONEY OR PROPERTY TO
WHICH SUCH ALIEN WOULD OTHERWISE BE ENTITLED SHALL BE PAID INTO COURT
FOR THE BENEFIT OF SAID ALIEN OR THE PERSON OR PERSONS WHO THEREAFTER
MAY APPEAR TO BE ENTITLED THERETO.  THE MONEY OR PROPERTY SO PAID INTO
COURT SHALL BE PAID OUT ONLY UPON ORDER OF THE SURROGATE OR PURSUANT TO
THE ORDER OR JUDGMENT OF A COURT OF COMPETENT JURISDICTION. 

"(B) ANY ASSIGNMENT OF A FUND WHICH IS REQUIRED TO BE DEPOSITED
PURSUANT TO THE PROVISIONS OF PARAGRAPH ONE (A) OF THIS SECTION SHALL
NOT BE EFFECTIVE TO CONFER UPON THE ASSIGNEE ANY GREATER RIGHT TO THE
DELIVERY OF THE FUND THAN THE ASSIGNOR WOULD OTHERWISE ENJOY. 

"2.  WHERE IT SHALL APPEAR THAT A BENEFICIARY WOULD NOT HAVE THE
BENEFIT OR USE OR CONTROL OF THE MONEY OR OTHER PROPERTY DUE HIM OR
WHERE OTHER SPECIAL CIRCUMSTANCES MAKE IT DESIRABLE THAT SUCH PAYMENT
SHOULD BE WITHHELD THE DECREE MAY DIRECT THAT SUCH MONEY OR PROPERTY BE
PAID INTO COURT FOR THE BENEFIT OF THE BENEFICIARY OR THE PERSON OR
PERSONS WHO MAY THEREAFTER APPEAR ENTITLED THERETO.  THE MONEY OR
PROPERTY SO PAID INTO COURT SHALL BE PAID OUT ONLY UPON ORDER OF THE
COURT OR PURSUANT TO THE ORDER OR JUDGMENT OF A COURT OF COMPETENT
JURISDICTION. 

"3.  IN ANY SUCH PROCEEDING WHERE IT IS UNCERTAIN THAT AN ALIEN
BENEFICIARY OR FIDUCIARY NOT RESIDING WITHIN THE UNITED STATES, THE
DISTRICT OF COLUMBIA, THE COMMONWEALTH OF PUERTO RICO OR A TERRITORY OR
POSSESSION OF THE UNITED STATES WOULD HAVE THE BENEFIT OR USE OR
CONTROL OF THE MONEY OR PROPERTY DUE HIM THE BURDEN OF PROVING THAT THE
ALIEN BENEFICIARY WILL RECEIVE THE BENEFIT OR USE OR CONTROL OF THE
MONEY OR PROPERTY DUE HIM SHALL BE UPON HIM OR THE PERSON CLAIMING
FROM, THROUGH OR UNDER HIM."     /2/  THE SECOND CIRCUIT ORIGINALLY
TOOK THE VIEW THAT DENIAL OF SUMMARY JUDGMENT, WHERE AN INJUNCTION HAD
BEEN PRAYED FOR, WAS AN APPEALABLE ORDER DENYING AN INJUNCTION UNDER
SEC. 1292(A)(1), FEDERAL GLASS CO. V. LOSHIN, 217 F.2D 936 (1954)
(L.HAND, J.; FRANK, J., CONCURRING; CLARK, J., DISSENTING).  THIS WAS
CONTRARY TO THE MAJORITY VIEW THAT SUCH ORDERS WERE NOT APPEALABLE, A
VIEW BEST REPRESENTED BY MORGENSTERN CHEMICAL CO. V. SCHERING CORP.,
181 F.2D 160 (C.A. 3RD CIR. 1950).  THE SECOND CIRCUIT, EVEN BEFORE
THIS COURT'S DECISION IN SWITZERLAND ASSN., SUPRA, HAD REVERSED ITS
POSITION.  CHAPPELL & CO. V. FRANKEL, 367 F.2D 197 (1966) (EN BANC). 
SEE ALSO 6 J. MOORE, FEDERAL PRACTICE PARA. 56.21(2), AT 2791-2792 (2D
ED. 1966). 

IN SWITZERLAND ASSN., SUPRA, THIS COURT LEFT OPEN THE QUESTION
WHETHER AN ORDER DENYING SUMMARY JUDGMENT MIGHT BE APPEALABLE AS AN
ORDER DENYING AN INJUNCTION WHEN THE GROUND FOR THE DENIAL WAS OTHER
THAN THE EXISTENCE OF A TRIABLE ISSUE OF FACT. 

/3/  THE 1948 REVISION OF THE JUDICIAL CODE DID MAKE ONE SUBSTANTIVE
CHANGE IN THE THREE-JUDGE COURT ACT; IT ELIMINATED THE REQUIREMENT,
IMPOSED BY THE 1925 AMENDMENT, THAT A THREE-JUDGE COURT SHOULD BE
REQUIRED TO HEAR AN APPLICATION FOR A PERMANENT INJUNCTION ONLY WHERE
AN APPLICATION FOR A PRELIMINARY INJUNCTION HAD ORIGINALLY BEEN MADE. 
REVISER'S NOTE, 28 U.S.C. 2281. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

IF SUMMARY JUDGMENT /1/  HAD BEEN GRANTED TO APPELLANTS THERE WOULD
BE NO QUESTION BUT THAT THIS COURT WOULD HAVE JURISDICTION UNDER 28
U.S.C. 1253 OVER AN APPEAL FROM THAT JUDGMENT, AS IT WOULD CONSTITUTE
AN "ORDER GRANTING . . . AN INTERLOCUTORY OR PERMANENT INJUNCTION." 
SIMILARLY, THERE SEEMS LITTLE ROOM FOR ARGUMENT THAT THE DENIAL OF
SUMMARY JUDGMENT TO APPELLANTS CONSTITUTES AN ORDER "DENYING . . . AN
INTERLOCUTORY OR PERMANENT INJUNCTION," SINCE SUCH INJUNCTIVE RELIEF
WAS REQUESTED IN APPELLANTS' COMPLAINT.  /2/  THE MAJORITY OPINION
RELIES ON SWITZERLAND ASSN. V. HORNE'S MARKET, 385 U.S. 23, AS
AUTHORITY FOR DISMISSING THIS APPEAL FOR WANT OF JURISDICTION UNDER 28
U.S.C. 1253.  IN THAT CASE, HOWEVER, THE DENIAL OF SUMMARY JUDGMENT WAS
BASED SOLELY ON THE EXISTENCE OF A TRIABLE ISSUE OF FACT; /3/  THE
SUMMARY JUDGMENT DID NOT CONCERN IN ANY WAY THE MERITS OF THE CASE. 
THIS CASE INVOLVES MORE.  APPELLANTS CLAIMED THAT SEC. 2218 OF THE NEW
YORK SURROGATE'S COURT PROCEDURE ACT WAS UNCONSTITUTIONAL ON ITS FACE. 
THE DENIAL OF SUMMARY JUDGMENT CONSTITUTED A REJECTION OF THIS CLAIM ON
THE MERITS, AS WELL AS A DENIAL OF INJUNCTIVE RELIEF BASED ON THAT
CLAIM.  ON THIS BASIS, I WOULD FIND JURISDICTION UNDER 28 U.S.C. 1253
TO DECIDE THIS APPEAL ON THE MERITS. 

/1/  THE APPELLANTS' MOTION FOR SUMMARY JUDGMENT WAS AS FOLLOWS: 

"PLAINTIFFS MOVE THE COURT AS FOLLOWS: 

"1.  THAT IT ENTER, PURSUANT TO RULE 56 OF THE FEDERAL RULES OF
CIVIL PROCEDURE, A SUMMARY JUDGMENT IN PLAINTIFFS' FAVOR FOR THE RELIEF
DEMANDED IN THE COMPLAINT ON THE GROUND THAT THERE IS NO GENUINE ISSUE
AS TO ANY MATERIAL FACT AND THAT PLAINTIFF IS ENTITLED TO A JUDGMENT AS
A MATTER OF LAW; AND, ESPECIALLY, IN THE LIGHT OF ZSCHERNIG V. MILLER,
36 L.W. 4120 (1/15/68), DECIDED BY THE SUPREME COURT OF THE UNITED
STATES. 

"THE AFFIDAVIT OF JOHN R. VINTILLA IS ATTACHED HERETO IN SUPPORT OF
THIS MOTION." 

/2/  THE "RELIEF DEMANDED IN THE COMPLAINT" INCLUDED: 

"THAT (THE DISTRICT COURT) ISSUE A PERMANENT INJUNCTION FOREVER
RESTRAINING AND ENJOINING THE DEFENDANTS AND EACH OF THEM, THEIR AGENTS
AND EMPLOYEES, FROM DENYING PLAINTIFFS, AND OTHERS SIMILARLY SITUATED
THE RIGHT TO THEIR DISTRIBUTIVE SHARES FROM DECEDENTS' ESTATES, AND TO
OTHER FUNDS TO WHICH THEY MAY BE ENTITLED; THAT THE DEFENDANTS, AND
EACH OF THEM, THEIR AGENTS, AND EMPLOYEES, BE ORDERED AND DIRECTED TO
TAKE SUCH ACTION AS SHALL BE NECESSARY TO DELIVER THE DISTRIBUTIVE
SHARES AND OTHER FUNDS WHICH ARE DUE AND OWING TO AND BEING WITHHELD
FROM THESE PLAINTIFFS AND OTHERS SIMILARLY SITUATED. 

"THAT PENDING THE FINAL HEARING AND DETERMINATION OF THIS COMPLAINT
UPON ITS MERITS, THE COURT ISSUE A PRELIMINARY INJUNCTION, RESTRAINING
THE DEFENDANTS AND EACH OF THEM, THEIR AGENTS, AND EMPLOYEES, FROM
DENYING THE PLAINTIFFS, AND OTHERS SIMILARLY SITUATED, THE RIGHT TO
THEIR DISTRIBUTIVE SHARES AND OTHER FUNDS TO WHICH THEY MAY BE
ENTITLED." 

/3/  SWITZERLAND ASSN. INVOLVED AN ACTION FOR UNFAIR COMPETITION
UNDER THE FEDERAL TRADEMARKS LAWS, 60 STAT. 427, 15 U.S.C. 1051 ET SEQ.
THE SOLE CLAIM WAS THAT DEFENDANT'S ACTIONS IN SELLING CHEESE LABELED
AS "IMPORTED SWISS CHEESE" WHICH HAD BEEN IMPORTED INTO THE UNITED
STATES FROM A COUNTRY OTHER THAN SWITZERLAND WERE ILLEGAL UNDER THE
TRADEMARK LAWS.  THE DEFENSE WAS THAT "IMPORTED SWISS CHEESE" HAD COME
TO HAVE AN ACCEPTED MEANING IN THE TRADE OF SWISS CHEESE THAT HAD BEEN
IMPORTED FROM ANY COUNTRY.  THE DISTRICT COURT FOUND THAT THE MEANING
IN THE TRADE OF "IMPORTED SWISS CHEESE" WAS AN ISSUE OF FACT AS TO
WHICH THERE WAS A GENUINE DISPUTE, AND THEREFORE DENIED THE PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT. 

THE REQUEST FOR INJUNCTIVE RELIEF THEREFORE HAD TO AWAIT A JURY
TRAIL ON THE FACTS. 

JOHN R. VINTILLA ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WERE EMANUEL ESCHWEGE AND NOVAK N. MARKU. 

DANIEL M. COHEN, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, AND SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL. 

MARTIN POPPER FILED BRIEFS FOR WOLF POPPER ROSS WOLF & JONES AS
AMICUS CURIAE. 
..END :


















SIGLER V. PARKER, 396 U.S. 482 


       SIGLER, WARDEN V. PARKER

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE EIGHTH CIRCUIT

        NO. 743.  DECIDED JANUARY 26, 1970 


RESPONDENT, WHO WAS CONVICTED OF MURDER IN 1956 IN A NEBRASKA STATE
COURT, PETITIONED THE FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS
CORPUS.  THAT COURT, RELYING ON STATE-COURT FINDINGS IN A 1965 POST
CONVICTION PROCEEDING, CONCLUDED THAT RESPONDENT'S CONFESSIONS WERE
VOLUNTARY AND DISMISSED THE PETITION.  THE COURT OF APPEALS REVERSED,
FINDING THAT THE TRIAL JUDGE HAD NOT FOUND THE CONFESSIONS VOLUNTARY
BEFORE ADMITTING THEM INTO EVIDENCE, CONTRARY TO JACKSON V. DENNO, 378
U.S. 368; THAT THIS PROCEDURAL VIOLATION HAD TAINTED ALL LATER FINDINGS
OF VOLUNTARINESS; AND, AFTER EXAMINING THE RECORD, THAT THE CONFESSIONS
WERE INVOLUNTARY.  HELD:  WHEN A FEDERAL COURT FINDS A JACKSON V. DENNO
ERROR IN A STATE PROCEEDING, IT MUST ALLOW THE STATE A REASONABLE TIME
TO MAKE AN ERROR-FREE DETERMINATION ON THE VOLUNTARINESS OF THE
CONFESSIONS. 

CERTIORARI GRANTED; 413 F.2D 459, VACATED AND REMANDED. 

PER CURIAM. 

IN 1956 RESPONDENT WAS FOUND GUILTY IN A NEBRASKA COURT OF FIRST
DEGREE MURDER; HE WAS SENTENCED TO LIFE IMPRISONMENT.  AFTER EXHAUSTING
HIS POST-CONVICTION REMEDIES UNDER NEBRASKA LAW, RESPONDENT PETITIONED
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA FOR A
WRIT OF HABEAS CORPUS.  AFTER AN EVIDENTIARY HEARING, THE DISTRICT
COURT DISMISSED THE PETITION.  ONE OF THE ISSUES PRESENTED TO THE
DISTRICT COURT WAS THE VOLUNTARINESS OF CONFESSIONS USED AGAINST
RESPONDENT AT HIS TRIAL.  RELYING ON THE FINDINGS OF THE STATE COURT IN
A 1965 POST-CONVICTION PROCEEDING, THE DISTRICT COURT CONCLUDED THAT
THE CONFESSIONS WERE VOLUNTARILY GIVEN AND HENCE ADMISSIBLE.  THE COURT
OF APPEALS FOR THE EIGHTH CIRCUIT, WITHOUT REACHING THE OTHER ISSUES
BEFORE IT, REVERSED ON THE GROUND THAT RESPONDENT'S CONFESSIONS WERE
INVOLUNTARY.  413 F.2D 459 (1969).  THE COURT FIRST FOUND THAT THE
OPINION OF THE NEBRASKA SUPREME COURT AFFIRMING RESPONDENT'S CONVICTION
INDICATED THAT THE TRIAL JUDGE HAD NOT FOUND THE CONFESSIONS VOLUNTARY
BEFORE ADMITTING THEM INTO EVIDENCE.  THE COURT THEN FOUND THAT THIS
VIOLATION OF THE PROCEDURAL RULE OF JACKSON V. DENNO, 378 U.S. 368
(1964), HAD TAINTED ALL SUBSEQUENT FINDINGS OF VOLUNTARINESS IN THE
NEBRASKA COURTS AND IN THE DISTRICT COURT.  SINCE IT SEEMED "UNLIKELY
THAT EITHER PARTY HAS ANY ADDITIONAL SUBSTANTIAL EVIDENCE ON THE
VOLUNATRINESS ISSUE," 413 F.2D, AT 463, THE COURT OF APPEALS CHOSE TO
EVALUATE THE CONFESSIONS ITSELF RATHER THAN TO REMAND THE CASE TO ALLOW
THE STATE TO MAKE AN UNTAINTED DETERMINATION ON THE VOLUNTARINESS
QUESTION.  AFTER EXAMINING THE RECORD OF THE TRIAL AND THE POST
CONVICTION PROCEEDINGS, THE COURT HELD THAT THE CONFESSIONS COULD ON NO
VIEW OF THE EVIDENCE BE DEEMED VOLUNTARY.  ON THE BASIS OF THIS
DETERMINATION, THE COURT DIRECTED THAT THE WRIT OF HABEAS CORPUS SHOULD
BE GRANTED UNLESS WITHIN A REASONABLE TIME RESPONDENT WAS GIVEN A NEW
TRIAL FROM WHICH THE CONFESSIONS WERE EXCLUDED. 

WE AGREE WITH THE COURT OF APPEALS THAT THE RECORD OF PROCEEDINGS IN
THE TRIAL COURT AND THE OPINION OF THE NEBRASKA SUPREME COURT AFFIRMING
RESPONDENT'S CONVICTION DO NOT JUSTIFY A CONCLUSION THAT THE TRIAL
JUDGE MADE HIS OWN DETERMINATION OF VOLUNARTINESS AS REQUIRED BY
JACKSON V. DENNO, SUPRA.  SEE SIMS V. GEORGIA, 385 U.S. 538 (1967).  IN
ADDITION, WE ACCEPT THE COURT OF APPEALS' DETERMINATION THAT ALL
SUBSEQUENT FINDINGS OF VOLUNTARINESS WERE MADE AT LEAST IN PART IN
RELIANCE ON THE FIRST, PROCEDURALLY DEFECTIVE, DETERMINATION OF THE
ADMISSIBILITY OF THE CONFESSIONS.  /0/  HOWEVER, AS INDICATED IN OUR
OPINION IN JACKSON V. DENNO, SUPRA, AT 391-396, THE APPROPRIATE REMEDY
WHEN A FEDERAL COURT FINDS A JACKSON V. DENNO ERROR IN A PRIOR STATE
PROCEEDING IS TO ALLOW THE STATE A REASONABLE TIME TO MAKE AN ERROR
FREE DETERMINATION ON THE VOLUNTARINESS OF THE CONFESSION AT ISSUE. 
HENCE IT WAS ERROR FOR THE COURT OF APPEALS TO PASS JUDGMENT ON THE
VOLUNTARINESS OF RESPONDENT'S CONFESSIONS WITHOUT FIRST PERMITTING A
NEBRASKA COURT TO MAKE SUCH AN EVALUATION UNINFLUENCED BY THE APPARENT
FINDING OF VOLUNTARINESS AT THE 1956 TRIAL. 

THE WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

IT IS SO ORDERED. 

/0/  AFTER A HEARING IN 1965 UNDER THE NEBRASKA POST CONVICTION ACT,
NEB. REV. STAT. SECS. 29-3001 TO 29-3004 (CUM. SUPP. 1967), THE STATE
TRIAL COURT FOUND THAT THE RECORD AND EXHIBITS INDICATED THAT THE
CONFESSIONS WERE VOLUNTARY.  THE COURT OF APPEALS MAY HAVE DEEMED THIS
CONCLUSION UNSATISFACTORY BECAUSE THE STATE COURT'S FINDING ON THE
VOLUNTARINESS QUESTION WAS FOLLOWED IMMEDIATELY BY A REFERENCE TO THE
ORIGINAL DETERMINATION, AT TRIAL AND ON APPEAL FROM THE CONVICTION, AS
TO THE ADMISSIBILITY OF THE CONFESSIONS.  THE COURT OF APPEALS' VIEW IS
SUPPORTED BY THE FACT THAT THE NEBRASKA SUPREME COURT RELIED HEAVILY ON
THE APPARENT FINDING OF VOLUNTARINESS AT THE ORIGINAL TRIAL AND ON
APPEAL IN AFFIRMING THE TRIAL COURT'S DENIAL OF COLLATERAL RELIEF. 
STATE V. PARKER, 180 NEB. 707, 144 N.W.2D 525 (1966). 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THIS COURT IN JACKSON V. DENNO, 378 U.S. 368 (1964), HELD OVER MY
DISSENT THAT THE QUESTION OF THE VOLUNTARINESS OF A DEFENDANT'S ALLEGED
CONFESSION MUST BE MADE BY THE TRIAL JUDGE IN A SEPARATE PROCEEDING
PRIOR TO THE SUBMISSION OF THE CONFESSION TO THE JURY, AND THAT INSOFAR
AS FEDERAL QUESTIONS CONCERNING COERCION UNDER THE FIFTH AMENDMENT WERE
INVOLVED THE DECISION OF THE TRIAL JUDGE FORECLOSES THE JURY FROM
PASSING UPON THE VOLUNTARINESS QUESTION.  IN MY DISSENT I SAID: 

"WHATEVER MIGHT BE A JUDGE'S VIEW OF THE VOLUNTARINESS OF A
CONFESSION, THE JURY IN PASSING ON A DEFENDANT'S GUILT OR INNOCENCE IS,
IN MY JUDGMENT, ENTITLED TO HEAR AND DETERMINE VOLUNTARINESS OF A
CONFESSION ALONG WITH OTHER FACTUAL ISSUES ON WHICH ITS VERDICT MUST
REST."  ID., AT 401.  I ADHERE TO THAT DISSENT AND HOPE THAT AT SOME
FUTURE TIME THIS COURT WILL RESTORE TO DEFENDANTS THEIR RIGHT TO HAVE
THE VOLUNTARINESS OF ALLEGED CONFESSIONS DETERMINED BY THE JURY AS THE
SIXTH AMENDMENT REQUIRES. 

I WOULD NOT OBJECT IF THE COURT WERE REMANDING THE CASE FOR A NEW
AND COMPLETE RETRIAL IN WHICH A NEBRASKA JURY OF THE DEFENDANT'S PEERS
COULD DETERMINE AFTER HEARING THE EVIDENCE WHETHER THE ALLEGED
CONFESSIONS HAD BEEN VOLUNTARILY GIVEN.  CLEARLY, WHEN A JURY PASSES
UPON THE TRUTHFULNESS OF A CONFESSION, AS IT MUST DO WHEN A CONFESSION
IS OFFERED, THE JURY MUST ALSO BE ALLOWED TO DETERMINE WHETHER THE
CONFESSION WAS CAUSED BY POLICE COERCION OR WHETHER IT WAS FREELY
GIVEN.  JACKSON V. DENNO THUS TOOK AWAY A DEFENDANT'S TRADITIONAL RIGHT
TO HAVE THE JURY DECIDE FOR ITSELF WHETHER A CONFESSION WAS TAINTED AND
PROBABLY UNTRUE BECAUSE IT WAS COERCED.  THE VITAL IMPORTANCE OF THIS
ISSUE TO DEFENDANTS TRIED IN THIS COUNTRY IS A SUFFICIENT REASON FOR ME
TO CONTINUE MY PROTEST AGAINST THE COURT'S HOLDING IN JACKSON V.
DENNO. 

MR. JUSTICE DOUGLAS, DISSENTING. 

RESPONDENT WAS CONVICTED OF MURDER AND HE WAS SENTENCED TO LIFE
IMPRISONMENT ON JUNE 2, 1956, NEARLY 14 YEARS AGO.  ON APPEAL, HIS
CONVICTION WAS AFFIRMED.  PARKER V. STATE, 164 NEB. 614, 83 N.W.2D 347,
AND WE DENIED CERTIORARI, 356 U.S. 933. 

IN 1962 RESPONDENT FILED A PETITION FOR WRIT OF ERROR CORAM NOBIS IN
THE TRIAL COURT WHICH WAS DISMISSED.  THE DISMISSAL WAS AFFIRMED ON
APPEAL.  PARKER V. STATE, 178 NEB. 1, 131 N.W.2D 678. 

IN 1963 RESPONDENT SOUGHT POST-CONVICTION RELIEF IN THE NEBRASKA
COURT, ALLEGING THAT THE CONFESSIONS OBTAINED FROM HIM AND USED AT THE
TRIAL WERE INVOLUNTARY AND IN VIOLATION OF THE FEDERAL CONSTITUTION. 
THE COURT AFTER AN EVIDENTIARY HEARING DENIED RELIEF AND THE SUPREME
COURT OF NEBRASKA AFFIRMED.  STATE V. PARKER, 180 NBE.  707, 144 N.W.2D
525. 

IN 1966 RESPONDENT FILED THE PRESENT PETITION FOR HABEAS CORPUS IN
THE FEDERAL DISTRICT COURT, AGAIN CHALLENGING THE VOLUNTARINESS OF THE
CONFESSIONS.  AGAIN A FULL EVIDENTIARY HEARING WAS HELD AND THE
PETITION WAS DENIED.  THAT WAS ON JUNE 27, 1968.  ON JULY 18, 1969, THE
COURT OF APPEALS REVERSED, 413 F.2D 459, SAYING: 

"THE INTEREST OF JUSTICE WOULD NOT BE SERVED BY REMANDING THIS CASE
FOR A HEARING UPON THE VOLUNTARINESS OF THE CONFESSIONS) IF THE FACTUAL
BACKGROUND IN THE PRESENT CASE IS SUCH THAT IN EVENT THE STATE COURT
AGAIN FOUND THE CONFESSIONS) VOLUNTARY, A DETERMINATION THAT SUCH
FINDING WAS NOT WARRANTED WOULD BE REQUIRED.  IN BOTH THE STATE AND
FEDERAL POST CONVICTION HEARINGS RELIANCE WAS PLACED UPON THE EXTENSIVE
RECORD MADE ON VOLUNTARINESS AT THE TRIAL, AND NO ADDITIONAL EVIDENCE
WAS INTRODUCED.  THUS IT WOULD SEEM UNLIKELY THAT EITHER PARTY HAS ANY
ADDITION SUBSTANTIAL EVIDENCE ON THE VOLUNTARINESS ISSUE."  ID., AT
463. 

THE ISSUE OF VOLUNTARINESS VEL NON OF THE CONFESSIONS IS A MUCH
PLOWED FIELD.  IF THE FEDERAL COURTS WERE COMING TO THIS QUESTION
WITHOUT PRIOR STATE OPPORTUNITY TO ACT, I WOULD AGREE THAT THE FEDERAL
COURTS SHOULD NOT ACT UNTIL THE STATE TRIBUNAL FIRST HAD THE
OPPORTUNITY TO TRY THE ISSUE.  MOREOVER, IT WOULD BE MORE APPROPRIATE,
AS MR. JUSTICE BLACK SAYS, TO REMAND THE CASE SO THAT THERE MIGHT BE A
NEW TRIAL BEFORE A JURY.  BUT IF THIS ISSUE IS TO BE RESOLVED IN A
HABEAS CORPUS PROCEEDING, WHERE TRADITIONALLY A JURY DOES NOT SIT, /0/
THEN WE SHOULD AFFIRM THE COURT OF APPEALS.  THE ISSUE AS TO THE
VOLUNTARY CHARACTER OF THE CONFESSIONS HAS BEEN HOTLY CONTESTED AND THE
FACTS THOROUGHLY EXPOSED IN THE STATE PROCEEDINGS.  AND THE CONCLUSION
BY THE COURT OF APPEALS THAT THE CONFESSIONS WERE NOT VOLUNTARY IS A
RESPONSIBLE ONE.  MOREOVER, THE OBSERVATION OF THE SUPREME COURT OF
NEBRASKA THAT THERE IS NO EVIDENCE OF "A REAL MISCARRIAGE OF JUSTICE,"
STATE V. PARKER, 180 NEB.,AT 714, 144 N.W.2D, AT 529, THOUGH POPULAR IN
SOME LEGAL CIRCLES, IS IRRELEVANT.  FOR UNDER OUR PRESUMABLY CIVILIZED
CONSTITUTIONAL PROCEDURES, A CONVICTION ON A COERCED CONFESSION, EVEN
OF ONE WHOM WE DESPISE, IS INTOLERABLE. 

/0/  THE RULE THAT THERE IS NO RIGHT TO JURY TRIAL IN HABEAS CORPUS
CASES HAS BEEN CODIFIED IN THE FEDERAL STATUTE, 28 U.S.C. 2243: 

"THE COURT SHALL SUMMARILY HEAR AND DETERMINE THE FACTS, AND DISPOSE
OF THE MATTER AS LAW AND JUSTICE REQUIRE." 

TO FED. RULE CIV. PROC. 39(C).  SEE 5 J.MOORE, FEDERAL PRACTICE 265-269
(1969); CF. W. CHURCH, A TREATISE ON THE WRIT OF HABEAS CORPUS 256 (2D
ED. 1893).  YET THE USE OF AN ADVISORY JURY IS DISCRETIONARY ONLY.  SEE
BARRY V. WHITE, 62 APP.D.C. 69, 70, 64 F.2D 707, 708 (1933).  "(THE
COURT SHOULD NOT UTILIZE AN ADVISORY JURY, IF TO DO SO WOULD DELAY THE
HEARING OF THE HABEAS CORPUS PROCEEDING; AND AS A MATTER OF SOUND
PRACTICE THE ADVISORY JURY SHOULD BE USED, IF AT ALL, ONLY IN THE RARE
AND EXCEPTIONAL CASE."  MOORE, SUPRA, AT 268-269. 

CLARENCE A. H. MEYER, ATTORNEY GENERAL OF NEBRASKA, AND RALPH H.
GILLAN, ASSISTANT ATTORNEY GENERAL, FOR PETITIONER. 

RICHARD J. BRUCKNER FOR RESPONDENT. 
..END :



SHAPIRO V. DOE, 396 U.S. 488 


       SHAPIRO, WELFARE COMMISSIONER OF CONNECTICUT V. DOE

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT

        NO. 805.  DECIDED JANUARY 26, 1970 


302 F.SUPP.  761, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION OF THE APPELLEE FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED.  THE MOTION TO DISMISS IS ALSO GRANTED AND THE APPEAL IS
DISMISSED FOR FAILURE TO DOCKET THE CASE WITHIN THE TIME PRESCRIBED BY
RULE 13. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

IN THIS CASE A THREE-JUDGE UNITED STATES DISTRICT COURT INVALIDATED
A CONNECTICUT STATE WELFARE REGULATION REQUIRING THE MOTHER OF AN
ILLEGITIMATE CHILD TO REVEAL THE NAME OF THE CHILD'S FATHER AS A
PRECONDITION TO RECEIVING WELFARE ASSISTANCE ON THE GROUND THAT THE
REGULATION IMPOSED AN ADDITIONAL CONDITION OF WELFARE ELIGIBILITY NOT
REQUIRED OR AUTHORIZED BY THE SOCIAL SECURITY ACT, 49 STAT. 620, AS
AMENDED, 42 U.S.C. 601-610 (1964 ED. AND SUPP. IV).  THE CASE COMES TO
THIS COURT ON DIRECT APPEAL TAKEN BY CONNECTICUT WELFARE OFFICIALS
PURSUANT TO THE AUTHORIZATION IN 28 U.S.C. 1253.  THERE CAN BE NO DOUBT
ABOUT THE FACT THAT THIS APPEAL PRESENTS A FEDERAL QUESTION WHICH
SHOULD BE DECIDED HERE AND THAT THIS COURT HAS JURISDICTION OVER THE
APPEAL SINCE APPELLEE'S STATUTORY CLAIM WAS INITIALLY JOINED WITH A
CONSTITUTIONAL ATTACK UPON THE CONNECTICUT REGULATION.  FLORIDA LIME
GROWERS V. JACOBSEN, 362 U.S. 73 (1960).  YET, THE COURT TODAY
DISMISSES THIS APPEAL ON THE GROUND THAT IT WAS NOT TIMELY DOCKETED IN
ACCORDANCE WITH RULE 13(1) OF THE RULES OF THE UNITED STATES SUPREME
COURT.  RULE 13(1) PROVIDES THAT IN CASES APPEALED PURSUANT TO 28
U.S.C. 1253 THE TIME LIMIT FOR DOCKETING THE APPEAL SHALL BE 60 DAYS
FROM THE FILING OF THE NOTICE OF THE APPEAL.  IN THIS CASE THE NOTICE
OF APPEAL WAS PROPERLY FILED PURSUANT TO 28 U.S.C. 2101(B) ON SEPTEMBER
2, 1969.  THE 60-DAY TIME LIMIT THUS EXPIRED ON NOVEMBER 1, 1969, BUT
APPELLANTS DID NOT DOCKET THE APPEAL UNTIL NOVEMBER 3, 1969, TWO DAYS
LATER, ONE OF WHICH WAS A SUNDAY.  IT IS BECAUSE OF THIS MINOR AND
ESSENTIALLY TECHNICAL INFRACTION OF ITS OWN RULES THAT THE COURT TODAY
DISMISSES THIS IMPORTANT APPEAL.  I CANNOT AGREE WITH SUCH A RESULT. 
TIME DEFECTS SUCH AS THIS ONE INVOLVING ONLY A FAILURE TO COMPLY WITH
THE RULES OF THIS COURT DO NOT RISE TO JURISDICTIONAL PROPORTIONS AND
CAN BE WAIVED BY THE COURT WHEN THE INTERESTS OF JUSTICE SO REQUIRE. 
TAGLIANETTI V. UNITED STATES, 394 U.S. 316, N. 1 (1969).  GIVEN THE
IMPORTANCE OF THE ISSUE IN THIS CASE AND THE HARMLESS, UNDOUBTEDLY
INADVERTENT NATURE OF APPELLANT'S ERROR, THIS CASE SEEMS TO ME AN
ALTOGETHER APPROPRIATE ONE FOR THE WAIVER OF RULE 13(1).  THE COURT
HARDLY PUTS ITS BEST FOOT FORWARD WHEN IT DISMISSES SO SUBSTANTIAL AN
APPEAL ON SO TECHNICAL A GROUND.  I WOULD WAIVE THE TIME DEFECT, NOTE
PROBABLE JURISDICTION, AND CONSIDER THE ISSUE PRESENTED IN THIS APPEAL
ON THE MERITS. 

ROBERT K. KILLIAN, ATTORNEY GENERAL OF CONNECTICUT, AND FRANCIS J.
MACGREGOR, ASSISTANT ATTORNEY GENERAL, FOR APPELLANT. 

LEE A. ALBERT FOR APPELLEE. 
..END :











MILLS V. ELECTRIC AUTO-LITE, 396 U.S. 375 


       MILLS ET AL. V. ELECTRIC AUTO-LITE CO. ET AL.

     CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT

        NO. 64.  ARGUED NOVEMBER 13, 1969-- DECIDED JANUARY 20,

           1970 


PETITIONERS, MINORITY SHAREHOLDERS OF RESPONDENT ELECTRIC AUTO-LITE
CO., BROUGHT THIS ACTION DERIVATIVELY AND ON BEHALF OF MINORITY
SHAREHOLDERS AS A CLASS TO SET ASIDE A MERGER OF AUTO-LITE AND THE
MERGENTHALER LINOTYPE CO. (WHICH BEFORE THE MERGER OWNED OVER HALF OF
AUTO-LITE'S STOCK).  PETITIONERS CHARGED THAT THE PROXY SOLICITATION
FOR THE MERGER BY AUTO-LITE'S MANAGEMENT WAS MATERIALLY MISLEADING AND
VIOLATED SEC. 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934 AND RULE 14A
9 THEREUNDER IN THAT THE MERGER WAS RECOMMENDED TO AUTO-LITE'S
SHAREHOLDERS BY THAT COMPANY'S DIRECTORS WITHOUT THEIR DISCLOSING THAT
THEY WERE ALL NOMINEES OF AND CONTROLLED BY MERGENTHALER.  THE DISTRICT
COURT ON PETITIONERS' MOTION FOR SUMMARY JUDGMENT RULED THAT THE
CLAIMED DEFECT IN THE PROXY STATEMENT WAS A MATERIAL OMISSION, AND
AFTER A HEARING CONCLUDED THAT WITHOUT THE VOTES OF MINORITY
STOCKHOLDERS APPROVAL OF THE MERGER COULD NOT HAVE BEEN ACHIEVED AND
THAT A CAUSAL RELATIONSHIP HAD THUS BEEN SHOWN BETWEEN THE FINDING OF A
SEC. 14(A) VIOLATION AND THE ALLEGED INJURY TO PETITIONERS.  THE COURT
REFERRED THE CASE TO A MASTER TO CONSIDER APPROPRIATE RELIEF.  ON
INTERLOCUTORY APPEAL, THE COURT OF APPEALS AFFIRMED THE CONCLUSION THAT
THE PROXY STATEMENT WAS MATERIALLY DEFICIENT BUT HELD THAT THE GRANTING
OF SUMMARY JUDGMENT WITH RESPECT TO CAUSATION WAS ERRONEOUS AND THAT IT
WAS NECESSARY TO RESOLVE AT TRIAL WHETHER THERE WAS A CAUSAL
RELATIONSHIP BETWEEN THE DEFICIENCY IN THE PROXY STATEMENT AND THE
MERGER.  FINDING THAT CAUSATION COULD NOT BE DIRECTLY ESTABLISHED
BECAUSE OF THE IMPRACTICALITIES OF DETERMINING HOW MANY VOTES WERE
AFFECTED, THE COURT RULED THAT THE ISSUE WAS TO BE DETERMINED BY PROOF
OF FAIRNESS OF THE MERGER; AND IF THE RESPONDENTS COULD PROVE FAIRNESS
IT COULD BE CONCLUDED THAT A SUFFICIENT NUMBER OF SHAREHOLDERS WOULD
HAVE APPROVED THE MERGER REGARDLESS OF THE MISREPRESENTATION.  HELD: 

1.  FAIRNESS OF THE MERGER TERMS DOES NOT CONSTITUTE A DEFENSE TO A
PRIVATE ACTION FOR VIOLATION OF SEC. 14(A) OF THE ACT COMPLAINING OF
MATERIALLY MISLEADING SOLICITATION OF PROXIES THAT AUTHORIZED A
CORPORATE MERGER.  PP. 381-385. 

(A) PERMITTING LIABILITY TO BE FORECLOSED ON THE BASIS OF A FINDING
THAT THE MERGER WAS FAIR WOULD CONTRAVENE THE PURPOSE OF SEC. 14(A) BY
BYPASSING THE STOCKHOLDERS.  PP. 381-382. 

(B) IMPOSING ON SMALL SHAREHOLDERS THE BURDEN OF REBUTTING THE
CORPORATION'S EVIDENCE OF FAIRNESS WOULD DISCOURAGE THEM FROM THE
PRIVATE ENFORCEMENT OF PROXY RULES THAT "PROVIDES A NECESSARY
SUPPLEMENT TO COMMISSION ACTION."  J. I. CASE CO. V. BORAK, 377 U.S.
426, 432.  PP. 382-383. 

(C) THE EVIDENCE SUBMITTED AT THE HEARING AS TO THE CAUSAL
RELATIIONSHIP BETWEEN THE PROXY MATERIAL AND THE MERGER WAS SUFFICIENT
TO ESTABLISH PETITIONERS' CAUSE OF ACTION.  P. 383. 

(D) WHERE, AS HERE, THERE WAS PROOF THAT THE MISSTATEMENT OR
OMISSION IN THE PROXY STATEMENT WAS MATERIAL, THIS SHOWING THAT THE
DEFECT MIGHT HAVE BEEN CONSIDERED IMPORTANT IN SHAPING THE
SHAREHOLDERS' VOTE IS SUFFICIENT WITHOUT PROOF, WHICH THE COURT OF
APPEALS ERRONEOUSLY HELD WAS NECESSARY, THAT ITS EFFECT WAS DECISIVE. 
PP. 384-385. 

2.  IN DEVISING RETROSPECTIVE RELIEF FOR VIOLATION OF THE PROXY
RULES THE FEDERAL COURTS SHOULD BE GUIDED BY THE PRINCIPLES OF EQUITY. 
PP. 386-389. 

(A) THE FAIRNESS OF THE MERGER MAY BE A RELEVANT CONSIDERATION IN
DETERMINING THE APPROPRIATE RELIEF, AND THE MERGER SHOULD BE SET ASIDE
ONLY IF A COURT OF EQUITY CONCLUDES FROM ALL THE CIRCUMSTANCES THAT IT
WOULD BE EQUITABLE TO DO SO.  PP. 386-388. 

(B) DAMAGES SHOULD BE RECOVERABLE HERE ONLY TO THE EXTENT THAT THEY
CAN BE PROVED.  PP. 388-389. 

3.  PETITIONERS, WHO HAVE ESTABLISHED A VIOLATION OF THE SECURITIES
LAWS BY THEIR CORPORATION AND ITS OFFICIALS, ARE ENTITLED TO AN INTERIM
AWARD OF LITIGATION EXPENSES AND REASONABLE ATTORNEYS' FEES INCURRED IN
PROVING THE VIOLATION, SINCE THE EXPENSES PETITIONERS INCURRED WERE FOR
THE BENEFIT OF THE CORPORATION AND THE OTHER STOCKHOLDERS.  THE COURT
DOES NOT DECIDE THE FURTHER QUESTION OF REIMBURSEMENT FOR LITIGATION
EXPENSES INCURRED IN ANY ENSUING PROCEEDINGS.  PP. 389-397. 

403 F.2D 429, VACATED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US TO CONSIDER A BASIC ASPECT OF THE IMPLIED
PRIVATE RIGHT OF ACTION FOR VIOLATION OF SEC. 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934, /1/  RECOGNIZED BY THIS COURT IN J. I. CASE CO.
V. BORAK, 377 U.S. 426 (1964).  AS IN BORAK THE ASSERTED WRONG IS THAT
A CORPORATE MERGER WAS ACCOMPLISHED THROUGH THE USE OF A PROXY
STATEMENT THAT WAS MATERIALLY FALSE OR MISLEADING.  THE QUESTION WITH
WHICH WE DEAL IS WHAT CAUSAL RELATIONSHIP MUST BE SHOWN BETWEEN SUCH A
STATEMENT AND THE MERGER TO ESTABLISH A CAUSE OF ACTION BASED ON THE
VIOLATION OF THE ACT. 

        I 

PETITIONERS WERE SHAREHOLDERS OF THE ELECTRIC AUTO-LITE COMPANY
UNTIL 1963, WHEN ITWASMERGED INTO MERGENTHALER LINOTYPE COMPANY.  THEY
BROUGHT SUIT ON THE DAY BEFORE THE SHAREHOLDERS' MEETING AT WHICH THE
VOTE WAS TO TAKE PLACE ON THE MERGER, AGAINST AUTO-LITE, MERGENTHALER,
AND A THIRD COMPANY, AMERICAN MANUFACTURING COMPANY, INC. THE COMPLAINT
SOUGHT AN INJUNCTION AGAINST THE VOTING BY AUTO-LITE'S MANAGEMENT OF
ALL PROXIES OBTAINED BY MEANS OF AN ALLEGEDLY MISLEADING PROXY
SOLICITATION; HOWEVER, IT DID NOT SEEK A TEMPORARY RESTRAINING ORDER,
AND THE VOTING WENT AHEAD AS SCHEDULED THE FOLLOWING DAY.  SEVERAL
MONTHS LATER PETITIONERS FILED AN AMENDED COMPLAINT, SEEKING TO HAVE
THE MERGER SET ASIDE AND TO OBTAIN SUCH OTHER RELIEF AS MIGHT BE
PROPER. 

IN COUNT II OF THE AMENDED COMPLAINT, WHICH IS THE ONLY COUNT BEFORE
US, /2/  PETITIONERS PREDICATED JURISDICTION ON SEC. 27 OF THE 1934
ACT, 15 U.S.C. 78AA.  THEY ALLEGED THAT THE PROXY STATEMENT SENT OUT BY
THE AUTO-LITE MANAGEMENT TO SOLICIT SHAREHOLDERS' VOTES IN FAVOR OF THE
MERGER WAS MISLEADING, IN VIOLATION OF SEC. 14(A) OF THE ACT AND SEC
RULE 14A-9 THEREUNDER.  (17 CFR 240.14A-9.)  PETITIONERS RECITED THAT
BEFORE THE MERGER MERGANTHALER OWNED OVER 50% OF THEOUTSTANDINGSHARES
OF AUTO-LITE COMMON STOCK, AND HAD BEEN IN CONTROL OF AUTO-LITE FOR TWO
YEARS.  AMERICAN MANUFACTURING IN TURN OWNED ABOUT ONE-THIRD OF THE
OUTSTANDING SHARES OF MERGENTHALER, AND FOR TWO YEARS HAD BEEN IN
VOTING CONTROL OF MERGENTHALER AND, THROUGH IT, OF AUTO-LITE. 
PETITIONERS CHARGED THAT IN LIGHT OF THESE CIRCUMSTANCES THE PROXY
STATEMENT WAS MISLEADING IN THAT IT TOLD AUTO-LITE SHAREHOLDERS THAT
THEIR BOARD OF DIRECTORS RECOMMENDED APPROVAL OF THE MERGER WITHOUT
ALSO INFORMING THEM THAT ALL 11 OF AUTO-LITE'S DIRECTORS WERE NOMINEES
OF MERGENTHALER AND WERE UNDER THE "CONTROL AND DOMINATION OF
MERGENTHALER."  PETITIONERS ASSERTED THE RIGHT TO COMPLAIN OF THIS
ALLEGED VIOLATION BOTH DERIVATIVELY ON BEHALF OF AUTO-LITE AND
ASREPRESENTATIVESOF THE CLASS OF ALL ITS MINORITY SHAREHOLDERS. 

ON PETITIONERS' MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO COUNT
II, THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS RULED AS A
MATTER OF LAW THAT THE CLAIMED DEFECT IN THE PROXY STATEMENT WAS, IN
LIGHT OF THE CIRCUMSTANCES IN WHICH THE STATEMENT WAS MADE, A MATERIAL
OMISSION.  THE DISTRICT COURT CONCLUDED, FROM ITS READING OF THE BORAK
OPINION, THAT ITHAD TO HOLD A HEARING ON THE ISSUE WHETHER THERE WAS "A
CAUSAL CONNECTION BETWEEN THE FINDING THAT THERE HAS BEEN A VIOLATION
OF THE DISCLOSURE REQUIREMENTS OF SEC. 14(A) AND THE ALLEGED INJURY TO
THE PLAINTIFFS" BEFORE IT COULD CONSIDER WHAT REMEDIES WOULD BE
APPROPRIATE.  (UNREPORTED OPINION DATED FEBRUARY 14, 1966.) 

AFTER HOLDING SUCH A HEARING, THE COURT FOUND THAT UNDER THE TERMS
OF THE MERGER AGREEMENT, AN AFFIRMATIVE VOTE OF TWO-THIRDS OF THE AUTO
LITE SHARES WAS REQUIRED FOR APPROVAL OF THE MERGER, AND THAT THE
RESPONDENT COMPANIES OWNED AND CONTROLLED ABOUT 54% OF THE OUTSTANDING
SHARES.  THEREFORE, TO OBTAIN AUTHORIZATION OF THE MERGER, RESPONDENTS
HAD TO SECURE THE APPROVAL OF A SUBSTANTIAL NUMBER OF THE MINORITY
SHAREHOLDERS.  AT THE STOCKHOLDERS' MEETING, APPROXIMATELY 950,000
SHARES, OUT OF 1,160,000 SHARES OUTSTANDING, WERE VOTED IN FAVOR OF THE
MERGER.  THIS INCLUDED 317,000 VOTES OBTAINED BY PROXY FROM THE
MINORITY SHAREHOLDERS, VOTES THAT WERE "NECESSARY AND INDISPENSABLE TO
THE APPROVAL OF THE MERGER."  THE DISTRICT COURT CONCLUDED THAT A
CAUSAL RELATIONSHIP HAD THUS BEEN SHOWN, AND IT GRANTED AN
INTERLOCUTORY JUDGMENT IN FAVOR OF PETITIONERS ON THE ISSUE OF
LIABILITY, REFERRING THE CASE TO A MASTER FOR CONSIDERATION OF
APPROPRIATE RELIEF.  (UNREPORTED FINDINGS AND CONCLUSIONS DATED SEPT.
26, 1967; OPINION REPORTED AT 281 F.SUPP.  826 (1967). 

THE DISTRICT COURT MADE THE CERTIFICATION REQUIRED BY 28 U.S.C.
1292(B), AND RESPONDENTS TOOK AN INTERLOCUTORY APPEAL TO THE COURTOF
APPEALS FOR THE SEVENTH CIRCUIT.  /3/  THAT COURT AFFIRMED THE DISTRICT
COURT'S CONCLUSION THAT THE PROXY STATEMENT WAS MATERIALLY DEFICIENT,
BUT REVERSED ON THE QUESTION OF CAUSATION.  THE COURT ACKNOWLEDGED
THAT, IF AN INJUNCTION HAD BEEN SOUGHT A SUFFICIENT TIME BEFORE THE
STOCKHOLDERS' MEETING, "CORRECTIVE MEASURES WOULD HAVE BEEN
APPROPRIATE."  403 F.2D 429, 435 (1968).  HOWEVER, SINCE THIS SUIT WAS
BROUGHT TOO LATE FOR PREVENTIVE ACTION, THE COURTS HAD TO DETERMINE
"WHETHER THE MISLEADING STATEMENT AND OMISSION CAUSED THE SUBMISSION OF
SUFFICIENT PROXIES," AS A PREREQUISITE TO A DETERMINATION OF LIABILITY
UNDER THE ACT.  IF THE RESPONDENTS COULD SHOW, "BY A PREPONDERANCE OF
PROBABILITIES, THAT THE MERGER WOULD HAVE RECEIVED A SUFFICIENT VOTE
EVEN IF THE PROXY STATEMENT HAD NOT BEEN MISLEADING IN THE RESPECT
FOUND," PETITIONERS WOULD BE ENTITLED TO NO RELIEF OF ANY KIND.  ID.,
AT 436. 

THE COURT OF APPEALS ACKNOWLEDGED THAT THIS TEST CORRESPONDS TO THE
COMMON-LAW FRAUD TEST OF WHETHER THE INJURED PARTY RELIEF ON THE
MISREPRESENTATION.  HOWEVER, RIGHTLY CONCLUDING THAT "(RELIANCE BY
THOUSANDS OF INDIVIDUALS, AS HERE, CAN SCARCELY BE INQUIRED INTO" (ID.,
AT 436 N. 10), THE COURT RULED THAT THE ISSUE WAS TO BE DETERMINED BY
PROOF OF THE FAIRNESS OF THE TERMS OF THE MERGER.  IF RESPONDENTS COULD
SHOW THAT THE MERGER HAD MERIT AND WAS FAIR TO THE MINORITY
SHAREHOLDERS, THE TRIAL COURT WOULD BE JUSTIFIED IN CONCLUDING THAT A
SUFFICIENT NUMBER OF SHAREHOLDERS WOULD HAVE APPROVED THE MERGER HAD
THERE BEEN NO DEFICIENCY IN THE PROXY STATEMENT.  IN THAT CASE
RESPONDENTS WOULD BE ENTITLED TO A JUDGMENT IN THEIR FAVOR. 

CLAIMING THAT THE COURT OF APPEALS HAS CONSTRUED THIS COURT'S
DECISION IN BORAK IN A MANNER THAT FRUSTRATES THE STATUTE'SPOLICYOF
ENFORCEMENT THROUGH PRIVATE LITIGATION, THE PETITIONERS THEN SOUGHT
REVIEW IN THIS COURT.  WE GRANTED CERTIORARI, 394 U.S. 971 (1969),
BELIEVING THAT RESOLUTION OF THIS BASIC ISSUE SHOULD BE MADE AT THIS
STAGE OF THE LITIGATION AND NOT POSTPONED UNTIL AFTER A TRIAL UNDER THE
COURT OF APPEALS' DECISION.  /4/

        II 

AS WE STRESSED IN BORAK, SEC. 14(A) STEMMED FROM A CONGRESSIONAL
BELIEF THAT "(FAIR CORPORATE SUFFRAGE IS AN IMPORTANT RIGHT THAT SHOULD
ATTACH TO EVERY EQUITY SECURITY BROUGHT ON A PUBLIC EXCHANGE."  H.R.
REP. NO. 1383, 73D CONG.,2D SESS., 13.  THE PROVISION WAS INTENDED TO
PROMOTE "THE FREE EXERCISE OF THE VOTING RIGHTS OF STOCKHOLDERS" BY
ENSURING THAT PROXIES WOULD BE SOLICITED WITH "EXPLANATION TO THE
STOCKHOLDER OF THE REAL NATURE OF THE QUESTIONS FOR WHICH AUTHORITY TO
CAST HIS VOTE IS SOUGHT."  ID., AT 14; S. REP. NO. 792, 73D CONG.,2D
SESS., 12; SEE 377 U.S.,AT 431.  THE DECISION BELOW, BY PERMITTING ALL
LIABILITY TO BE FORECLOSED ON THE BASIS OF A FINDING THAT THE MERGER
WAS FAIR, WOULD ALLOW THE STOCKHOLDERS TO BE BYPASSED, AT LEAST WHERE
THE ONLY LEGAL CHALLENGE TO THE MERGER IS A SUIT FOR RETROSPECTIVE
RELIEF AFTER THE MEETING HAS BEEN HELD.  A JUDICIAL APPRAISAL OF THE
MERGER'S MERITS COULD BE SUBSTITUTED FOR THE ACTUAL AND INFORMED VOTE
OF THE STOCKHOLDERS. 

THE RESULT WOULD BE TO INSULATE FROM PRIVATE REDRESS AN ENTIRE
CATEGORY OF PROXY VIOLATIONS-- THOSE RELATING TO MATTERS OTHER THAN THE
TERMS OF THE MERGER.  EVEN OUTRAGEOUS MISREPRESENTATIONS IN A PROXY
SOLICITATION, IF THEY DID NOT RELATE TO THE TERMS OF THE TRANSACTION,
WOULD GIVE RISE TO NO CAUSE OF ACTION UNDER SEC. 14(A).  PARTICULARLY
IF CARRIED OVER TO ENFORCEMENT ACTIONS BY THE SECURITIES AND EXCHANGE
COMMISSION ITSELF, SUCH A RESULT WOULD SUBVERT THE CONGRESSIONAL
PURPOSE OF ENSURING FULL AND FAIR DISCLOSURE TO SHAREHOLDERS. 

FURTHER RECOGNITION OF THE FAIRNESS OF THE MERGER AS A COMPLETE
DEFENSE WOULD CONFRONT SMALL SHAREHOLDERS WITH AN ADDITIONAL OBSTACLE
TO MAKING A SUCCESSFUL CHALLENGE TO A PROPOSAL RECOMMENDED THROUGH A
DEFECTIVE PROXY STATEMENT.  THE RISK THAT THEY WOULD BE UNABLE TO REBUT
THE CORPORATION'S EVIDENCE OF THEFAIRNESSOF THE PROPOSAL, AND THUS TO
ESTABLISH THEIR CAUSE OF ACTION, WOULD BE BOUND TO DISCOURAGE SUCH
SHAREHOLDERS FROM THE PRIVATE ENFORCEMENT OF THE PROXY RULES THAT
"PROVIDES A NECESSARY SUPPLEMENT TO COMMISSION ACTION."  J. I. CASE CO.
V. BORAK, 377 U.S.,AT 432.  /5/ 

SUCH A FRUSTRATION OF THE CONGRESSIONAL POLICY IS NOT REQUIRED BY
ANYTHING IN THE WORDING OF THE STATUTE OR IN OUR OPINION IN THE BORAK
CASE.  SECTION 14(A) DECLARES IT "UNLAWFUL" TO SOLICIT PROXIES IN
CONTRAVENTION OF COMMISSION RULES, AND SEC RULE 14A-9 PROHIBITS
SOLICITATIONS "CONTAINING ANY STATEMENT WHICH . . . IS FALSE OR
MISLEADING WITH RESPECT TO ANY MATERIAL FACT, OR WHICH OMITS TO STATE
ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN NOT
FALSEORMISLEADING . . . . "  USE OF A SOLICITATION THAT IS MATERIALLY
MISLEADING IS ITSELF A VIOLATION OF LAW, AS THE COURT OF APPEALS
RECOGNIZED IN STATING THAT INJUNCTIVE RELIEF WOULD BE AVAILABLE TO
REMEDY SUCH A DEFECT IF SOUGHT PRIOR TO THE STOCKHOLDERS' MEETING.  IN
BORAK, WHICH CAMETO THIS COURT ON A DISMISSAL OF THE COMPLAINT, THE
COURT LIMITED ITS INQUIRY TO WHETHER A VIOLATION OF SEC. 14(A) GIVES
RISE TO "A FEDERAL CAUSE OF ACTION FOR RESCISSION OR DAMAGES," 377
U.S.,AT 428.  REFERRING TO THE ARGUMENT MADE BY PETITIONERS THERE "THAT
THE MERGER CAN BE DISSOLVED ONLY IF IT WAS FRAUDULENT OR NON
BENEFICIAL, ISSUES UPON WHICHTHEPROXY MATERIAL WOULD NOT BEAR," THE
COURT STATED:  "BUT THE CAUSAL RELATIONSHIP OF THE PROXY MATERIAL AND
THE MERGER ARE QUESTIONS OF FACT TO BE RESOLVED AT TRIAL, NOT HERE.  WE
THEREFORE DO NOT DISCUSS THIS POINT FURTHER."  ID., AT 431.  IN THE
PRESENT CASE THERE HAS BEEN A HEARING SPECIFICALLY DIRECTED TO THE
CAUSATION PROBLEM.  THE QUESTION BEFORE THE COURT IS WHETHER THE FACTS
FOUND ON THE BASIS OF THAT HEARING ARE SUFFICIENT IN LAW TO ESTABLISH
PETITIONERS' CAUSE OF ACTION, AND WE CONCLUDE THAT THEY ARE. 

WHERE THE MISSTATEMENT OR OMISSION IN A PROXY STATEMENT HAS BEEN
SHOWN TO BE "MATERIAL," AS IT WAS FOUND TO BE HERE, THAT DETERMINATION
ITSELF INDUBITABLY EMBODIES A CONCLUSION THAT THE DEFECT WAS OF SUCH A
CHARACTER THAT IT MIGHT HAVE BEEN CONSIDERED IMPORTANT BY A REASONABLE
SHAREHOLDER WHO WAS IN THE PROCESS OF DECIDING HOW TO VOTE.  /6/  THIS
REQUIREMENT THAT THE DEFECT HAVE A SIGNIFICANT PROPENSITY TO AFFECT THE
VOTING PROCESS IS FOUND IN THE EXPRESS TERMS OF RULE 14A-9, AND IT
ADEQUATELY SERVES THE PURPOSE OF ENSURING THAT A CAUSE OF ACTION CANNOT
BE ESTABLISHED BY PROOF OF A DEFECT SO TRIVIAL, OR SO UNRELATED TO THE
TRANSACTION FOR WHICH APPROVAL IS SOUGHT, THAT CORRECTION OF THE DEFECT
OR IMPOSITION OF LIABILITY WOULD NOT FURTHER THE INTERESTS PROTECTED BY
SEC. 14(A). 

THERE IS NO NEED TO SUPPLEMENT THIS REQUIREMENT, AS DID THE COURT OF
APPEALS, WITH A REQUIREMENT OF PROOF OF WHETHER THE DEFECT ACTUALLY HAD
A DECISIVE EFFECT ON THE VOTING.  WHERE THERE HAS BEEN A FINDING OF
MATERIALITY, A SHAREHOLDER HAS MADE A SUFFICIENT SHOWING OF CAUSAL
RELATIONSHIP BETWEEN THE VIOLATION AND THE INJURY FOR WHICH HE SEEKS
REDRESS IF, AS HERE, HE PROVES THAT THE PROXY SOLICITATION ITSELF,
RATHER THAN THE PARTICULAR DEFECT IN THE SOLICITATION MATERIALS, WAS AN
ESSENTIAL LINK IN THE ACCOMPLISHMENT OF THE TRANSACTION.  THIS
OBJECTIVE TEST WILL AVOID THE IMPRACTICALITIES OF DETERMINING HOW MANY
VOTES WERE AFFECTED, AND, BY RESOLVING DOUBTS IN FAVOR OF THOSE THE
STATUTE IS DESIGNED TO PROTECT, WILL EFFECTUATE THE CONGRESSIONAL
POLICY OF ENSURING THAT THE SHAREHOLDERS ARE ABLE TO MAKE AN INFORMED
CHOICE WHEN THEY ARE CONSULTED ON CORPORATE TRANSACTIONS.  CF. UNION
PAC. R. CO. V. CHICAGO & N.W.R. CO., 226 F.SUPP.  400, 411 (D.C.N.D.
ILL. 1964); 2 L.LOSS, SECURITIES REGULATION 962 N. 411 (2D ED. 1961); 5
ID., AT 2929-2930 (SUPP. 1969).  /7/

        III 

OUR CONCLUSION THAT PETITIONERS HAVE ESTABLISHED THEIR CASE BY
SHOWING THAT PROXIES NECESSARY TO APPROVAL OF THE MERGER WERE OBTAINED
BY MEANS OF A MATERIALLY MISLEADING SOLICITATION IMPLIES NOTHING ABOUT
THE FORM OF RELIEF TO WHICH THEY MAY BE ENTITLED.  WE HELD IN BORAK
THAT UPON FINDING A VIOLATION THE COURTS WERE "TO BE ALERT TO PROVIDE
SUCH REMEDIES AS ARE NECESSARY TO MAKE EFFECTIVE THE CONGRESSIONAL
PURPOSE," NOTING SPECIFICALLY THAT SUCH REMEDIES ARE NOT TO BE LIMITED
TO PROSPECTIVE RELIEF.  377 U.S.,AT 433, 434.  IN DEVISING
RETROSPECTIVE RELIEF FOR VIOLATION OF THE PROXY RULES, THE FEDERAL
COURTS SHOULD CONSIDER THE SAME FACTORS THAT WOULD GOVERN THE RELIEF
GRANTED FOR ANY SIMILAR ILLEGALITY OR FRAUD.  ONE IMPORTANT FACTOR MAY
BE THE FAIRNESS OF THE TERMS OF THE MERGER.  POSSIBLE FORMS OF RELIEF
WILL INCLUDE SETTING ASIDE THE MERGER OR GRANTING OTHER EQUITABLE
RELIEF, BUT, AS THE COURT OF APPEALS BELOW NOTED, NOTHING IN THE
STATUTORY POLICY "REQUIRES THE COURT TO UNSCRAMBLE A CORPORATE
TRANSACTION MERELY BECAUSE A VIOLATION OCCURRED."  403 F.2D, AT 436. 
IN SELECTING A REMEDY THE LOWER COURTS SHOULD EXERCISE "'THE SOUND
DISCRETION WHICH GUIDES THE DETERMINATIONS OF COURTS OF EQUITY,'"
KEEPING IN MIND THE ROLE OF EQUITY AS "THE INSTRUMENT FOR NICE
ADJUSTMENT AND RECONCILIATION BETWEEN THE PUBLIC INTEREST AND PRIVATE
NEEDS AS WELL AS BETWEEN COMPETING PRIVATE CLAIMS."  HECHT CO. V.
BOWLES, 321 U.S. 321, 329-330 (1944), QUOTING FROM MEREDITH V. WINTER
HAVEN, 320 U.S. 228, 235 (1943).     WE DO NOT READ SEC. 29(B) OF THE
ACT, /8/  WHICH DECLARES CONTRACTS MADE IN VIOLATION OF THE ACT OR A
RULE THEREUNDER "VOID . . . AS REGARDS THE RIGHTS OF" THE VIOLATOR AND
KNOWING SUCCESSORS IN INTEREST, AS REQUIRING THAT THE MERGER BE SET
ASIDE SIMPLY BECAUSE THE MERGER AGREEMENT IS A "VOID" CONTRACT.  THIS
LANGUAGE ESTABLISHES THAT THE GUILTY PARTY IS PRECLUDED FROM ENFORCING
THE CONTRACT AGAINST AN UNWILLING INNOCENT PARTY, /9/  BUT IT DOES NOT
COMPEL THE CONCLUSION THAT THE CONTRACT IS A NULLITY, CREATING NO
ENFORCEABLE RIGHTS EVEN IN A PARTY INNOCENT OF THE VIOLATION.  THE
LOWER FEDERAL COURTS HAVE READ SEC. 29(B), WHICH HAS COUNTERPARTS IN
THE HOLDING COMPANY ACT, THE INVESTMENT COMPANY ACT, AND THE INVESTMENT
ADVISERS ACT, /10/  AS RENDERING THE CONTRACT MERELY VOIDABLE AT THE
OPTION OF THE INNOCENT PARTY.  SEE, E.G., GREATER IOWA CORP. V.
MCLENDON, 378 F.2D 783, 792 (C.A. 8TH CIR. 1967); ROYAL AIR PROPERTIES,
INC. V. SMITH, 312 F.2D 210, 213 (C.A. 9TH CIR. 1962); BANKERS LIFE &
CAS. CO. V. BELLANCA CORP., 288 F.2D 784, 787 (C.A. 7TH CIR. 1961);
KAMINSKY V. ABRAMS, 281 F.SUPP.  501, 507 (D.C.S.D.N.Y. 1968); MAHER V.
J. R. WILLISTON & BEANE, INC., 280 F.SUPP.  133, 138-139 (D.C.S.D.N.Y.
1967); CF. GREEN V. BROWN, 276 F.SUPP.  753, 757 (D.C.S.D.N.Y. 1967),
REMANDED ON OTHER GROUNDS, 398 F.2D 1006 (C.A. 2D CIR. 1968)
(INVESTMENT COMPANY ACT).  SEE ALSO 5 LOSS, SUPRA, AT 2925-2926 (SUPP.
1969).  THIS INTERPRETATION IS EMINENTLY SENSIBLE.  THE INTERESTS OF
THE VICTIM ARE SUFFICIENTLY PROTECTED BY GIVING HIM THE RIGHT TO
RESCIND; TO REGARD THE CONTRACT AS VOID WHERE HE HAS NOT INVOKED THAT
RIGHT WOULD ONLY CREATE THE POSSIBILITY OF HARDSHIPS TO HIM OR OTHERS
WITHOUT NECESSARILY ADVANCING THE STATUTORY POLICY OF DISCLOSURE. 

THE UNITED STATES, AS AMICUS CURIAE, POINTS OUT THAT AS
REPRESENTATIVES OF THE MINORITY SHAREHOLDERS, PETITIONERS ARE NOT
PARTIES TO THE MERGER AGREEMENT AND THUS DO NOT ENJOY A STATUTORY RIGHT
UNDER SEC. 29(B) TO SET IT ASIDE.  /11/  FURTHERMORE, WHILE THEY DO
HAVE A DERIVATIVE RIGHT TO INVOKE AUTO-LITE'S STATUS AS A PARTY TO THE
AGREEMENT, A DETERMINATION OF WHAT RELIEF SHOULD BE GRANTED IN AUTO
LITE'S NAME MUST HINGE ON WHETHER SETTING ASIDE THE MERGER WOULD BE IN
THE BEST INTERESTS OF THE SHAREHOLDERS AS A WHOLE.  IN SHORT, IN THE
CONTEXT OF A SUIT SUCH AS THIS ONE, SEC. 29(B) LEAVES THE MATTER OF
RELIEF WHERE IT WOULD BE UNDER BORAK WITHOUT SPECIFIC STATUTORY
LANGUAGE-- THE MERGER SHOULD BE SET ASIDE ONLY IF A COURT OF EQUITY
CONCLUDES, FROM ALL THE CIRCUMSTANCES, THAT IT WOULD BE EQUITABLE TO DO
SO.  CF. SEC V. NATIONAL SECURITIES, INC., 393 U.S. 453, 456, 463-464
(1969). 

MONETARY RELIEF WILL, OF COURSE, ALSO BE A POSSIBILITY.  WHERE THE
DEFECT IN THE PROXY SOLICITATION RELATES TO THE SPECIFIC TERMS OF THE
MERGER, THE DISTRICT COURT MIGHT APPROPRIATELY ORDER AN ACCOUNTING TO
ENSURE THAT THE SHAREHOLDERS RECEIVE THE VALUE THAT WAS REPRESENTED AS
COMING TO THEM.  ON THE OTHER HAND, WHERE, AS HERE, THE MISLEADING
ASPECT OF THE SOLICITATION DID NOT RELATE TO TERMS OF THE MERGER,
MONETARY RELIEF MIGHT BE AFFORDED TO THE SHAREHOLDERS ONLY IF THE
MERGER RESULTED IN A REDUCTION OF THE EARNINGS OR EARNINGS POTENTIAL OF
THEIR HOLDINGS.  IN SHORT, DAMAGES SHOULD BE RECOVERABLE ONLY TO THE
EXTENT THAT THEY CAN BE SHOWN.  IF COMMINGLING OF THE ASSETS AND
OPERATIONS OF THE MERGED COMPANIES MAKES IT IMPOSSIBLE TO ESTABLISH
DIRECT INJURY FROM THE MERGER, RELIEF MIGHT BE PREDICATED ON A
DETERMINATION OF THE FAIRNESS OF THE TERMS OF THE MERGER AT THE TIME IT
WAS APPROVED.  THESE QUESTIONS, OF COURSE, ARE FOR DECISION IN THE
FIRST INSTANCE BY THE DISTRICT COURT ON REMAND, AND OUR SINGLING OUT OF
SOME OF THE POSSIBILITIES IS NOT INTENDED TO EXCLUDE OTHERS. 

        IV 

ALTHOUGH THE QUESTION OF RELIEF MUST AWAIT FURTHER PROCEEDINGS IN
THE DISTRICT COURT, OUR CONCLUSION THAT PETITIONERS HAVE ESTABLISHED
THEIR CAUSE OF ACTION INDICATES THAT THE COURT OF APPEALS SHOULD HAVE
AFFIRMED THE PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY.  /12/
THE RESULT WOULD HAVE BEEN NOT ONLY THAT RESPONDENTS, RATHER THAN
PETITIONERS, WOULD HAVE BORNE THE COSTS OF THE APPEAL, BUT ALSO, WE
THINK, THAT PETITIONERS WOULD HAVE BEEN ENTITLED TO AN INTERIM AWARD OF
LITIGATION EXPENSES AND REASONABLE ATTORNEYS' FEES.  CF. HIGHWAY TRUCK
DRIVERS LOCAL 107 V. COHEN, 220 F.SUPP.  735 (D.C.E.D. PA. 1963).  WE
AGREE WITH THE POSITION TAKEN BY PETITIONERS, AND BY THE UNITED STATES
AS AMICUS, THAT PETITIONERS, WHO HAVE ESTABLISHED A VIOLATION OF THE
SECURITIES LAWS BY THEIR CORPORATION AND ITS OFFICIALS, SHOULD BE
REIMBURSED BY THE CORPORATION OR ITS SURVIVOR FOR THE COSTS OF
ESTABLISHING THE VIOLATION.  /13/ 

THE ABSENCE OF EXPRESS STATUTORY AUTHORIZATION FOR AN AWARD OF
ATTORNEYS' FEES IN A SUIT UNDER SEC. 14(A) DOES NOT PRECLUDE SUCH AN
AWARD IN CASES OF THIS TYPE.  IN A SUIT BY STOCKHOLDERS TO RECOVER
SHORT-SWING PROFITS FOR THEIR CORPORATION UNDER SEC. 16(B) OF THE 1934
ACT, THE COURT OF APPEALS FOR THE SECOND CIRCUIT HAS AWARDED ATTORNEYS'
FEES DESPITE THE LACK OF ANY PROVISION FOR THEM IN SEC. 16(B), "ON THE
THEORY THAT THE CORPORATION WHICH HAS RECEIVED THE BENEFIT OF THE
ATTORNEYS' SERVICES SHOULD PAY THE REASONABLE VALUE THEREOF."  SMOLOWE
V. DELENDO CORP., 136 F.2D 231, 241 (C.A. 2D CIR. 1943).  THE COURT
HELD THAT CONGRESS' INCLUSION IN SECS. 9(E) AND 18(A) OF THE ACT OF
EXPRESS PROVISIONS FOR RECOVERY OF ATTORNEYS' FEES IN CERTAIN OTHER
TYPES OF SUITS /14/  "DOES NOT IMPINGE (UPON) THE RESULT WE REACH IN
THE ABSENCE OF STATUTE, FOR THOSE SECTIONS MERELY ENFORCE AN ADDITIONAL
PENALTY AGAINSTTHE WRONGDOER."  IBID. 

WE AGREE WITH THE SECONDCIRCUITTHAT THE SPECIFIC PROVISIONS IN SECS.
9(E) AND 18(A) SHOULD NOT BE READ AS DENYING TO THE COURTS THE POWER TO
AWARD COUNSEL FEES IN SUITS UNDER OTHER SECTIONS OF THE ACT WHEN
CIRCUMSTANCES MAKE SUCH AN AWARD APPROPRIATE, ANY MORE THAN THE EXPRESS
CREATION BY THOSE SECTIONS OF PRIVATE LIABILITIES NEGATES THE
POSSIBILITY OF AN IMPLIED RIGHT OF ACTION UNDER SEC. 14(A).  THE
REMEDIAL PROVISIONS OF THE 1934 ACT ARE FAR DIFFERENT FROM THOSE OF THE
LANHAM ACT, SEC. 35, 60 STAT. 439, 15 U.S.C. 1117, WHICH HAVE BEEN HELD
TO PRECLUDE AN AWARD OF ATTORNEYS' FEES IN A SUIT FOR TRADEMARK
INFRINGEMENT.  FLEISCHMANN CORP. V. MAIER BREWING CO., 386 U.S. 714
(1967).  SINCE CONGRESS IN THE LANHAM ACT HAD "METICULOUSLY DETAILED
THE REMEDIES AVAILABLE TO A PLAINTIFF WHO PROVES THAT HIS VALID
TRADEMARK HAS BEEN INFRINGED," THE COURT IN FLEISCHMANN CONCLUDED THAT
THE EXPRESS REMEDIAL PROVISIONS WERE INTENDED "TO MARK THE BOUNDARIES
OF THE POWER TO AWARD MONETARY RELIEF IN CASES ARISING UNDER THE ACT." 
386 U.S.,AT 719, 721.  BY CONTRAST, WE CANNOT FAIRLY INFER FROM THE
SECURITIES EXCHANGE ACT OF 1934 A PURPOSE TO CIRCUMSCRIBE THE COURTS'
POWER TO GRANT APPROPRIATE REMEDIES.  CF. BAKERY WORKERS UNION V.
RATNER, 118 U.S.APP.D.C. 269, 274-275, 335 F.2D 691, 696-697 (1964). 
THE ACT MAKES NO PROVISION FOR PRIVATE RECOVERY FOR A VIOLATION OF SEC.
14(A), OTHER THAN THE DECLARATION OF "VOIDNESS" IN SEC. 29(B), LEAVING
THE COURTS WITH THE TASK, FACED BY THIS COURT IN BORAK, OF DECIDING
WHETHER A PRIVATE RIGHT OF ACTION SHOULD BE IMPLIED.  THE COURTS MUST
SIMILARLY DETERMINE WHETHER THE SPECIAL CIRCUMSTANCES EXIST THAT WOULD
JUSTIFY AN AWARD OF ATTORNEYS' FEES, INCLUDING REASONABLE EXPENSES OF
LITIGATION OTHER THAN STATUTORY COSTS.  /15/ 

WHILE THE GENERAL AMERICAN RULE IS THAT ATTORNEYS' FEES ARE NOT
ORDINARILY RECOVERABLE AS COSTS, BOTH THE COURTS AND CONGRESS HAVE
DEVELOPED EXCEPTIONS TO THIS RULE FOR SITUATIONS IN WHICH OVERRIDING
CONSIDERATIONS INDICATE THE NEED FOR SUCH A RECOVERY.  /16/  A PRIMARY
JUDGE-CREATED EXCEPTION HAS BEEN TO AWARD EXPENSES WHERE A PLAINTIFF
HAS SUCCESSFULLY MAINTAINED A SUIT, USUALLY ON BEHALF OF A CLASS, THAT
BENEFITS A GROUP OF OTHERS IN THE SAME MANNER AS HIMSELF.  SEE
FLEISCHMANN CORP. V. MAIER BREWING CO., 386 U.S.,AT 718-719.  TO ALLOW
THE OTHERS TO OBTAIN FULL BENEFIT FROM THE PLAINTIFF'S EFFORTS WITHOUT
CONTRIBUTING EQUALLY TO THE LITIGATION EXPENSES WOULD BE TO ENRICH THE
OTHERS UNJUSTLY AT THE PLAINTIFF'S EXPENSE.  THIS SUIT PRESENTS SUCH A
SITUATION.  THE DISSEMINATION OF MISLEADING PROXY SOLICITATIONS WAS A
"DECEIT PRACTICED ON THE STOCKHOLDERS AS A GROUP,"  J. I. CASE CO. V.
BORAK, 377 U.S.,AT 432, AND THE EXPENSES OF PETITIONERS' LAWSUIT HAVE
BEEN INCURRED FOR THE BENEFIT OF THE CORPORATION AND THE OTHER
SHAREHOLDERS. 

THE FACT THAT THIS SUIT HAS NOT YET PRODUCED, AND MAY NEVER PRODUCE,
A MONETARY RECOVERY FROM WHICH THE FEES COULD BE PAID DOES NOT PRECLUDE
AN AWARD BASED ON THIS RATIONALE.  ALTHOUGH THE EARLIEST CASES
RECOGNIZING A RIGHT TO REIMBURSEMENT INVOLVED LITIGATION THAT HAD
PRODUCED OR PRESERVED A "COMMON FUND" FOR THE BENEFIT OF A GROUP,
NOTHING IN THESE CASES INDICATES THAT THE SUIT MUST ACTUALLY BRING
MONEY INTO THE COURT AS A PREREQUISITE TO THE COURT'S POWER TO ORDER
REIMBURSEMENT OF EXPENSES.  /17/  "(THE FOUNDATION FOR THE HISTORIC
PRACTICE OF GRANTING REIMBURSEMENT FOR THE COSTS OF LITIGATION OTHER
THAN THE CONVENTIONAL TAXABLE COSTS IS PART OF THE ORIGINAL AUTHORITY
OF THE CHANCELLOR TO DO EQUITY IN A PARTICULAR SITUATION."  SPRAGUE V.
TICONIC NAT. BANK, 307 U.S. 161, 166 (1939).  THIS COURT IN SPRAGUE
UPHELD THE DISTRICT COURT'S POWER TO GRANT REIMBURSEMENT FOR A
PLAINTIFF'S LITIGATION EXPENSES EVEN THOUGH SHE HAD SUED ONLY ON HER
OWN BEHALF AND NOT FOR A CLASS, BECAUSE HER SUCCESS WOULD HAVE A STARE
DECISIS EFFECT ENTITLING OTHERS TO RECOVER OUT OF SPECIFIC ASSETS OF
THE SAME DEFENDANT.  ALTHOUGH THOSE OTHERS WERE NOT PARTIES BEFORE THE
COURT, THEY COULD BE FORCED TO CONTRIBUTE TO THE COSTS OF THE SUIT BY
AN ORDER REIMBURSING THE PLAINTIFF FROM THE DEFENDANT'S ASSETS OUT OF
WHICH THEIR RECOVERIES LATER WOULD HAVE TO COME.  THE COURT OBSERVED
THAT "THE ABSENCE OF AN AVOWED CLASS SUIT OR THE CREATION OF A FUND, AS
IT WERE, THROUGH STARE DECISIS RATHER THAN THROUGH A DECREE-- HARDLY
TOUCHES) THE POWER OF EQUITY IN DOING JUSTICE AS BETWEEN A PARTY AND
THE BENEFICIARIES OF HIS LITIGATION."  ID., AT 167. 

OTHER CASES HAVE DEPARTED FURTHER FROM THE TRADITIONAL METES AND
BOUNDS OF THE DOCTRINE, TO PERMIT REIMBURSEMENT IN CASES WHERE THE
LITIGATION HAS CONFERRED A SUBSTANTIAL BENEFIT ON THE MEMBERS OF AN
ASCERTAINABLE CLASS, AND WHERE THE COURT'S JURISDICTION OVER THE
SUBJECT MATTER OF THE SUIT MAKES POSSIBLE AN AWARD THAT WILL OPERATE TO
SPREAD THE COSTS PROPORTIONATELY AMONG THEM.  THIS DEVELOPMENT HAS BEEN
MOST PRONOUNCED IN SHAREHOLDERS' DERIVATIVE ACTIONS, WHERETHECOURTS
INCREASINGLY HAVE RECOGNIZED THAT THE EXPENSES INCURRED BY ONE
SHAREHOLDER IN THE VINDICATION OF A CORPORATE RIGHT OF ACTION CAN BE
SPREAD AMONG ALL SHAREHOLDERS THROUGH AN AWARD AGAINST THE CORPORATION,
REGARDLESS OF WHETHER AN ACTUAL MONEY RECOVERY HAS BEEN OBTAINED IN THE
CORPORATION'S FAVOR.  /18/  FOR EXAMPLE, AWARDS HAVE BEEN SUSTAINED IN
SUITS BY STOCKHOLDERS COMPLAINING THAT SHARES OF THEIR CORPORATION HAD
BEEN ISSUED WRONGFULLY FOR AN INADEQUATE CONSIDERATION.  /19/  A
SUCCESSFUL SUIT OF THIS TYPE, RESULTING IN CANCELLATION OF THE SHARES,
DOES NOT BRING A FUND INTO COURT OR ADD TO THE ASSETS OF THE
CORPORATION, BUT IT DOES BENEFIT THE HOLDERS OF THE REMAINING SHARES BY
ENHANCING THEIR VALUE.  SIMILARLY, HOLDERS OF VOTING TRUST CERTIFICATES
HAVE BEEN ALLOWED REIMBURSEMENT OF THEIR EXPENSES FROM THE CORPORATION
WHERE THEY SUCCEEDED IN TERMINATING THE VOTING TRUST AND OBTAINING FOR
ALL CERTIFICATE HOLDERS THE RIGHT TO VOTE THEIR SHARES.  /20/  IN THESE
CASES THERE WAS A "COMMON FUND" ONLY IN THE SENSE THAT THE COURT'S
JURISDICTION OVER THE CORPORATION AS NOMINAL DEFENDANT MADE IT POSSIBLE
TO ASSESS FEES AGAINST ALL OF THE SHAREHOLDERS THROUGH AN AWARD AGAINST
THE CORPORATION.  /21/ 

IN MANY OF THESE INSTANCES THE BENEFIT CONFERRED IS CAPABLE OF
EXPRESSION IN MONETARY TERMS, IF ONLY BY ESTIMATING THE INCREASE IN
MARKET VALUE OF THE SHARES ATTRIBUTABLE TO THE SUCCESSFUL LITIGATION. 
HOWEVER, AN INCREASING NUMBER OF LOWER COURTS HAVE ACKNOWLEDGED THAT A
CORPORATION MAY RECEIVE A "SUBSTANTIAL BENEFIT" FROM A DERIVATIVE SUIT,
JUSTIFYING AN AWARD OF COUNSEL FEES, REGARDLESS OF WHETHER THE BENEFIT
IS PECUNIARY IN NATURE.  /22/  A LEADING CASE IS BOSCH V. MEEKER
COOPERATIVE LIGHT & POWER ASSN., 257 MINN. 362, 101 N.W.2D 423 (1960),
IN WHICH A STOCKHOLDER WAS REIMBURSED FOR HIS EXPENSES IN OBTAINING A
JUDICIAL DECLARATION THAT THE ELECTION OF CERTAIN OF THE CORPORATION'S
DIRECTORS WAS INVALID.  THE SUPREME COURT OF MINNESOTA STATED: 

"WHERE AN ACTION BY A STOCKHOLDER RESULTS IN A SUBSTANTIAL BENEFIT
TO A CORPORATION HE SHOULD RECOVER HIS COSTS AND EXPENSES.  . . . (A)
SUBSTANTIAL BENEFIT MUST BE SOMETHING MORE THAN TECHNICAL IN ITS
CONSEQUENCE AND BE ONE THAT ACCOMPLISHES A RESULT WHICH CORRECTS OR
PREVENTS AN ABUSE WHICH WOULD BE PREJUDICIAL TO THE RIGHTS AND
INTERESTS OF THE CORPORATION OR AFFECT THE ENJOYMENT OR PROTECTION OF
AN ESSENTIAL RIGHT TO THE STOCKHOLDER'S INTEREST."  ID., AT 366-367,
101 N.W.2D, AT 426-427.     IN MANY SUITS UNDER SEC. 14(A),
PARTICULARLY WHERE THE VIOLATION DOES NOT RELATE TO THE TERMS OF THE
TRANSACTION FOR WHICH PROXIES ARE SOLICITED, IT MAY BE IMPOSSIBLE TO
ASSIGN MONETARY VALUE TO THE BENEFIT.  NEVERTHELESS, THE STRESS PLACED
BY CONGRESS ON THE IMPORTANCE OF FAIR AND INFORMED CORPORATE SUFFRAGE
LEADS TO THE CONCLUSION THAT, IN VINDICATING THE STATUTORY POLICY,
PETITIONERS HAVE RENDERED A SUBSTANTIAL SERVICE TO THE CORPORATION AND
ITS SHAREHOLDERS.  CF. BAKERY WORKERS UNION V. RATNER, 118 U.S.APP.D.C.
269, 274, 335 F.2D 691, 696 (1964).  WHETHER PETITIONERS ARE SUCCESSFUL
IN SHOWING A NEED FOR SIGNIFICANT RELIEF MAY BE A FACTOR IN DETERMINING
WHETHER A FURTHER AWARD SHOULD LATER BE MADE.  BUT REGARDLESS OF THE
RELIEF GRANTED, PRIVATE STOCKHOLDERS' ACTIONS OF THIS SORT "INVOLVE
CORPORATE THERAPEUTICS,"  /23/  AND FURNISH A BENEFIT TO ALL
SHAREHOLDERS BY PROVIDING AN IMPORTANT MEANS OF ENFORCEMENT OF THE
PROXY STATUTE.  /24/  TO AWARD ATTORNEYS' FEES IN SUCH A SUIT TO A
PLAINTIFF WHO HAS SUCCEEDED IN ESTABLISHING A CAUSE OF ACTION IS NOT TO
SADDLE THE UNSUCCESSFUL PARTY WITH THE EXPENSES BUT TO IMPOSE THEM ON
THE CLASS THAT HAS BENEFITED FROM THEM AND THAT WOULD HAVE HAD TO PAY
THEM HAD IT BROUGHT THE SUIT. 

FOR THE FOREGOING REASONS WE CONCLUDE THAT THE JUDGMENT OF THE COURT
OF APPEALS SHOULD BE VACATED AND THE CASE REMANDED TO THAT COURT FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

   IT IS SO ORDERED. 

/1/  48 STAT. 895, AS AMENDED, 15 U.S.C. 78NA). 

/2/  IN THE OTHER TWO COUNTS, PETITIONERS ALLEGED COMMON-LAW FRAUD
AND THAT THE MERGER WAS ULTRA VIRES UNDER OHIO LAW. 

/3/  PETITIONERS CROSS-APPEALED FROM AN ORDER ENTERED BY THE
DISTRICT COURT TWO DAYS AFTER ITS SUMMARY JUDGMENT IN THEIR FAVOR,
DELETING FROM THAT JUDGMENT A CONCLUSION OF LAW THAT "(UNDER THE
PROVISIONS OF SECTION 29(B) OF THE SECURITIES EXCHANGE ACT OF 1934, THE
MERGER EFFECTUATED THROUGH A VIOLATION OF SECTION 14 OF THE ACT IS
VOID."  THIS DELETION WAS APPARENTLY MADE FOR THE PURPOSE OF AVOIDING
ANY PREJUDICE ON THE QUESTION OF RELIEF, WHICH REMAINED OPEN FOR
CONSIDERATION BY THE MASTER.  IN LIGHT OF ITS DISPOSITION OF
RESPONDENTS' APPEAL, THE COURT OF APPEALS HAD NO NEED TO CONSIDER THE
CORSS-APPEAL. 

/4/  RESPONDENTS ASK THIS COURT TO REVIEW THE CONCLUSION OFTHELOWER
COURTS THAT THE PROXY STATEMENT WAS MISLEADING IN A MATERIAL RESPECT. 
PETITIONERS NATURALLY DID NOT RAISE THIS QUESTION IN THEIR PETITION FOR
CERTIORARI, AND RESPONDENTS FILED NO CROSS-PETITION.  SINCE REVERSAL OF
THE COURT OF APPEALS' RULING ON THIS QUESTION WOULD NOT DICTATE
AFFIRMANCE OF THAT COURT'S JUDGMENT, WHICH REMANDED THE CASE FOR
PROCEEDINGS TO DETERMINE CAUSATION, BUT RATHER ELIMINATION OF
PETITIONERS' RIGHTS THEREUNDER, WE WILL NOT CONSIDER THE QUESTION IN
THESE CIRCUMSTANCES.  UNITED STATES V. AMERICAN RY. EXP.  CO., 265 U.S.
425, 435 (1924); LANGNES V. GREEN, 282 U.S. 531, 535-539 (1931); MORLEY
CONSTR.  CO. V. MARYLAND CAS. CO., 300 U.S. 185, 191-192 (1937); R.
STERN & E. GRESSMAN, SUPREME COURT PRACTICE 314, 315 (4TH ED. 1969). 

/5/  THE COURT OF APPEALS' RULING THAT "CAUSATION" MAY BE NEGATED BY
PROOF OF THE FAIRNESS OF THE MERGER ALSO RESTS ON A DUBIOUS BEHAVIORAL
ASSUMPTION.  THERE IS NO JUSTIFICATION FOR PRESUMING THAT THE
SHAREHOLDERS OF EVERY CORPORATION ARE WILLING TO ACCEPT ANY AND EVERY
FAIR MERGER OFFER PUT BEFORE THEM; YET SUCH A PRESUMPTION IS IMPLICIT
IN THE OPINION OF THE COURT OF APPEALS.  THAT COURT GAVE NO INDICATION
OF WHAT EVIDENCE PETITIONERS MIGHT ADDUCE, ONCE RESPONDENTS HAD
ESTABLISHED THAT THE MERGER PROPOSAL WAS EQUITABLE, IN ORDER TO SHOW
THAT THE SHAREHOLDERS WOULD NEVERTHELESS HAVE REJECTED IT IF THE
SOLICITATION HAD NOT BEEN MISLEADING.  PROOF OF ACTUAL RELIANCE BY
THOUSANDS OF.IND VIDUALS WOULD, AS THE COURT ACKNOWLEDGED, NOT BE
FEASIBLE, SEE R. JENNINGS & H. MARSH, SECURITIES REGULATION, CASES AND
MATERIALS 1001 (2D ED 1968); AND RELIANCE ON THE NONDISCLOSURE OF A
FACT IS A PARTICULARLY DIFFICULT MATTER TO DEFINE OR PROVE, SEE 3
L.LOSS, SECURITIES REGULATION 1766 (2D ED. 1961).  IN PRACTICE,
THEREFORE, THE OBJECTIVE FAIRNESS OF THE PROPOSAL WOULD SEEMINGLY BE
DETERMINATIVE OF LIABILITY.  BUT, IN VIEW OF THE MANY OTHER FACTORS
THAT MIGHT LEAD SHAREHOLDERS TO PREFER THEIR CURRENT POSITION TO THAT
OF OWNERS OF A LARGER, COMBINED ENTERPRISE, IT IS PURE CONJECTURE TO
ASSUME THAT THE FAIRNESS OF THE PROPOSAL WILL ALWAYS BE DETERMINATIVE
OF THEIR VOTE.  CF. WIRTZ V. HOTEL, MOTEL & CLUB EMPLOYEES UNION, 391
U.S. 492, 508 (1968). 

/6/  CF. LIST V. FASHION PARK, INC., 340 F.2D 457, 462 (C.A. 2D CIR.
1965); GENERAL TIME CORP. V. TALLEY INDUSTRIES, INC., 403 F.2D 159, 162
(C.A. 2D CIR. 1968); RESTATEMENT (SECOND) OF TORTS SEC. 538(2)(A)
(TENT.  DRAFT NO. 10, 1964); 2 L.LOSS, SECURITIES REGULATION 917 (2D
ED. 1961); 6 ID.,AT 3534 (SUPP. 1969). 

IN THIS CASE, WHERE THE MISLEADING ASPECT OF THE SOLICITATION
INVOLVED FAILURE TO REVEAL A SERIOUS CONFLICT OF INTEREST ON THE PART
OF THE DIRECTORS, THE COURT OF APPEALS CONCLUDED THAT THE CRUCIAL
QUESTION IN DETERMINING MATERIALITY WAS "WHETHER THE MINORITY
SHAREHOLDERS WERE SUFFICIENTLY ALERTED TO THE BOARD'S RELATIONSHIP TO
THEIR ADVERSARY TO BE ON THEIR GUARD."  403 F.2D, AT 434.  AN ADEQUATE
DISCLOSURE OF THIS RELATIONSHIP WOULD HAVE WARNED THE STOCKHOLDERS TO
GIVE MORE CAREFUL SCRUTINY TO THE TERMS OF THE MERGER THAN THEY MIGHT
TO ONE RECOMMENDED BY AN ENTIRELY DISINTERESTED BOARD.  THUS, THE
FAILURE TO MAKE SUCH A DISCLOSURE WAS FOUND TO BE A MATERIAL DEFECT "AS
A MATTER OF LAW," THWARTING THE INFORMED DECISION AT WHICH THE STATUTE
AIMS, REGARDLESS OF WHETHER THE TERMS OF THE MERGER WERE SUCH THAT A
REASONABLE STOCKHOLDER WOULD HAVE APPROVED THE TRANSACTION AFTER MORE
CAREFUL ANALYSIS.  SEE ALSO SWANSON V. AMERICAN CONSUMER INDUSTRIES,
INC., 415 F.2D 1326 (C.A. 7TH CIR. 1969). 

/7/  WE NEED NOT DECIDE IN THIS CASE WHETHER CAUSATION COULD BE
SHOWN WHERE THE MANAGEMENT CONTROLS A SUFFICIENT NUMBER OF SHARES TO
APPROVE THE TRANSACTION WITHOUT ANY VOTES FROM THE MINORITY.  EVEN IN
THAT SITUATION, IF THE MANAGEMENT FINDS IT NECESSARY FOR LEGAL OR
PRACTICAL REASONS TO SOLICIT PROXIES FROM MINORITY SHAREHOLDERS, AT
LEAST ONE COURT HAS HELD THAT THE PROXY SOLICITATION MIGHT BE
SUFFICIENTLY RELATED TO THE MERGER TO SATISFY THE CAUSATION
REQUIREMENT, SEE LAURENZANO V. EINBENDER, 264 F.SUPP.  356
(D.C.E.D.N.Y. 1966); CF. SWANSON V. AMERICAN CONSUMER INDUSTRIES, INC.,
415 F.2D 1326, 1331-1332 (C.A. 7TH CIR. 1969); EAGLE V. HORVATH, 241
F.SUPP.  341, 344 (D.C.S.D.N.Y. 1965); GLOBUS, INC. V. JAROFF, 271
F.SUPP.  378, 381 (D.C.S.D.N.Y. 1967); COMMENT, SHAREHOLDERS'
DERIVATIVE SUIT TO ENFORCE A CORPORATE RIGHT OF ACTION AGAINST
DIRECTORS UNDER SEC RULE 10B-5, 114 U.PA.L.REV.  578, 582 (1966).  BUT
SEE HOOVER V. ALLEN, 241 F.SUPP.  213, 231-232 (D.C.S.D.N.Y. 1965);
BARNETT V. ANACONDA CO., 238 F.SUPP.  766, 770-774 (D.C.S.D.N.Y. 1965);
ROBBINS V. BANNER INDUSTRIES, INC., 285 F.SUPP.  758, 762-763
(D.C.S.D.N.Y. 1966).  SEE GENERALLY 5 L.LOSS, SECURITIES REGULATION
2933-2938 (SUPP. 1969). 

/8/  SECTION 29(B) PROVIDES IN PERTINENT PART:  "EVERY CONTRACT MADE
IN VIOLATION OF ANY PROVISION OF THIS CHAPTER OR OF ANY RULE OF
REGULATION THEREUNDER . . . SHALL BE VOID (1) AS REGARDS THE RIGHTS OF
ANY PERSON WHO, IN VIOLATION OF ANY SUCH PROVISION, RULE, OR
REGULATION, SHALL HAVE MADE . . . ANY SUCH CONTRACT, AND (2) AS REGARDS
THE RIGHTS OF ANY PERSON WHO, NOT BEING A PARTY TO SUCH CONTRACT, SHALL
HAVE ACQUIRED ANY RIGHT THEREUNDER WITH ACTUAL KNOWLEDGE OF THE FACTS
BY REASON OF WHICH THE MAKING . . . OF SUCH CONTRACT WAS IN VIOLATION
OF ANY SUCH PROVISION, RULE, OR REGULATION . . . . "  15 U.S.C.
78CCB). 

/9/  SEE EASTSIDE CHURCH OF CHRIST V. NATIONAL PLAN, INC., 391 F.2D
357, 362-363 (C.A. 5TH CIR. 1968); CF. GOLDSTEIN V. GROESBECK, 142 F.2D
422, 426-427 (C.A. 2D CIR. 1944). 

/10/  SEE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, SEC. 26(B), 49
STAT. 836, 15 U.S.C. 79ZB); INVESTMENT COMPANY ACT OF 1940, SEC. 47(B),
54 STAT. 846, 15 U.S.C. 80A-46(B); INVESTMENT ADVISERS ACT OF 1940,
SEC. 215(B), 54 STAT. 856, 15 U.S.C. 80B-15(B). 

/11/  IF PETITIONERS HAD SUBMITTED THEIR OWN PROXIES IN FAVOR OF THE
MERGER IN RESPONSE TO THE UNLAWFUL SOLICITATION, AS IT DOES NOT APPEAR
THEY DID, THE LANGUAGE OF SEC. 29(B) WOULD SEEM TO GIVE THEM, AS
INNOCENT PARTIES TO THAT TRANSACTION, A RIGHT TO RESCIND THEIR
PROXIES.  BUT IT IS CLEAR IN THIS CASE, WHERE PETITIONERS' COMBINED
HOLDINGS ARE ONLY 600 SHARES,THATSUCH RESCISSION WOULD NOT AFFECT THE
AUTHORIZATION OF THE MERGER. 

/12/  THE COURT OF APPEALS MIGHT HAVE MODIFIED THE JUDGMENT OF THE
DISTRICT COURT TO THE EXTENT THAT IT REFERRED THE ISSUE OF RELIEF TO A
MASTER UNDER FED. RULE CIV. PROC. 53(B).  THE COURT OF APPEALS' OPINION
INDICATES DOUBT WHETHER THE REFERRAL WAS APPROPRIATE, 403 F.2D, AT
436.  THIS ISSUE IS NOT BEFORE US. 

/13/  WE BELIEVE THAT THE QUESTION OF REIMBURSEMENT FOR THESE
EXPENSES HAS A SUFFICIENTLY CLOSE RELATIONSHIP TO THE DETERMINATION OF
WHAT CONSTITUTES A CAUSE OF ACTION UNDER SEC. 14(B) THAT IT IS
APPROPRIATE FOR DECISION AT THIS TIME.  THE UNITED STATES URGES THE
COURT TO CONSIDER ALSO WHETHER PETITIONERS WILL BE ENTITLED TO RECOUP
EXPENSES REASONABLY INCURRED IN FURTHER LITIGATION ON THE QUESTION OF
RELIEF.  WE ARE URGED TO HOLD THAT SUCH EXPENSES SHOULD BE REIMBURSED
REGARDLESS OF WHETHER PETITIONERS ARE ULTIMATELY SUCCESSFUL IN
OBTAINING SIGNIFICANT RELIEF.  HOWEVER, THE QUESTION OF REIMBURSEMENT
FOR FUTURE EXPENSES SHOULD BE RESOLVED IN THE FIRST INSTANCE BY THE
LOWER COURTS AFTER THE ISSUE OF RELIEF HAS BEEN LITIGATED AND A RECORD
HAS BEEN ESTABLISHED CONCERNING THE NEED FOR A FURTHER AWARD.  WE
EXPRESS NO VIEW ON THE MATTER AT THIS JUNCTURE. 

/14/  THESE PROVISIONS DEAL, RESPECTIVELY, WITH MANIPULATION OF
SECURITY PRICES AND WITH MISLEADING STATEMENTS IN DOCUMENTS FILED WITH
THE COMMISSION.  SEE 15 U.S.C. 78IE), 78RA). 

/15/  CF. NOTE, ATTORNEY'S FEES:  WHERE SHALL THE ULTIMATE BURDEN
LIE?, 20 VAND.L.REV.  1216, 1229 AND N. 68 (1967). 

/16/  MANY COMMENTATORS HAVE ARGUED FOR A MORE THOROUGHGOING
ABANDONMENT OF THE RULE.  SEE, E.G., EHRENZWEIG, REIMBURSEMENT OF
COUNSEL FEES AND THE GREAT SOCIETY, 54 CALIF.L.REV.  792 (1966);
KUENZEL, THE ATTORNEY'S FEE:  WHY NOT A COST OF LITIGATION?  49 IOWA
L.REV.  75 (1963); MCCORMICK, COUNSEL FEES AND OTHER EXPENSES OF
LITIGATION AS AN ELEMENT OF DAMAGES, 15 MINN.L.REV.  619 (1931);
STOEBUCK, COUNSEL FEES INCLUDED IN COSTS:  A LOGICAL DEVELOPMENT, 38
U.COLO.L.REV.  202 (1966); NOTE, SUPRA, N. 15. 

/17/  SEE TRUSTEES V. GREENOUGH, 105 U.S. 527, 531-537 (1882);
CENTRAL R.R. & BANKING CO. V. PETTUS, 113 U.S. 116 (1885); HORNSTEIN,
THE COUNSEL FEE IN STOCKHOLDER'S DERIVATIVE SUITS, 39 COL.L.REV.  784
(1939). 

EVEN IN THE ORIGINAL "FUND" CASE IN THIS COURT, IT WAS RECOGNIZED
THAT THE POWER OF EQUITY TO AWARD FEES WAS NOT RESTRICTED TO THE
COURT'S ABILITY TO PROVIDE REIMBURSEMENT FROM THE FUND ITSELF:  "IT
WOULD BE VERY HARD ON (THE SUCCESSFUL PLAINTIFF) TO TURN HIM AWAY
WITHOUT ANY ALLOWANCE.  . . . IT WOULD NOT ONLY BE UNJUST TO HIM, BUT
IT WOULD GIVE TO THE OTHER PARTIES ENTITLED TO PARTICIPATE IN THE
BENEFITS OF THE FUND AN UNFAIR ADVANTAGE.  HE HAS WORKED FOR THEM AS
WELL AS FOR HIMSELF; AND IF HE CANNOT BE REIMBURSED OUT OF THE FUND
ITSELF, THEY OUGHT TO CONTRIBUTE THEIR DUE PROPORTION OF THE EXPENSES
WHICH HE HAS FAIRLY INCURRED.  TO MAKE THEM A CHARGE UPON THE FUND IS
THE MOST EQUITABLE WAY OF SECURING SUCH CONTRIBUTION."  TRUSTEES V.
GREENOUGH, 105 U.S.,AT 532. 

/18/  SEE, E.G., HOLTHUSEN V. EDWARD G. BUDD MFG. CO., 55 F.SUPP. 
945 (D.C.E.D. PA. 1944); RUNSWICK V. FLOOR, 116 UTAH 91, 208 P.2D 948
(1949); CASES CITED N. 22, INFRA.  SEE GENERALLY HORNSTEIN, LEGAL
THERAPEUTICS:  THE "SALVAGE" FACTOR IN COUNSEL FEE AWARDS, 69
HARV.L.REV.  658, 669-679 (1956); SMITH, RECOVERY OF PLAINTIFF'S
ATTORNEY'S FEES IN CORPORATE LITIGATION, 40 L.A.BAR BULL.  15 (1964). 

/19/  HARTMAN V. OATMAN GOLD MINING & MILLING CO., 22 ARIZ. 476, 198
P. 717 (1921); GREENOUGH V. COEUR D'ALENES LEAD CO., 52 IDAHO 599, 18
P.2D 288 (1932); CF. RIVERSIDE OIL & REFINING CO. V. LYNCH, 114 OKLA.
198, 243 P. 967 (1925). 

/20/  ALLEN V. CHASE NAT. BANK, 180 MISC. 259, 40 N.Y.S.2D 245 (SUP.
CT. 1943), SEQUEL TO ALLEN V. CHASE NAT. BANK, 178 MISC. 536, 35
N.Y.S.2D 958 (SUP. CT. 1942). 

/21/  CF. NOTE, ALLOWANCE OF COUNSEL FEES OUT OF A "FUND IN COURT":
THE NEW JERSEY EXPERIENCE, 17 RUTGERS L.REV.  634, 638-643 (1963). 

/22/  SEE SCHECHTMAN V. WOLFSON, 244 F.2D 537, 540 (C.A. 2D CIR.
1957); GRANT V. HARTMAN RANCH CO., 193 CAL.APP.2D 497, 14 CAL.REPTR. 
531 (1961); TREVES V. SERVEL, INC., 38 DEL.CH. 483, 154 A.2D 188 (DEL.
SUP. CT. 1959); SAKS V. GAMBLE, 38 DEL.CH. 504, 154 A.2D 767 (1958);
YAP V. WAH YEN KI TUK TSEN NIN HUE, 43 HAW.  37, 42 (1958); BERGER V.
AMANA SOCIETY, 253 IOWA 378, 387, 111 N.W.2D 753, 758 (1962); BOSCH V.
MEEKER COOPERATIVE LIGHT & POWER ASSN., 257 MINN. 362, 101 N.W.2D 423
(1960); EISENBERG V. CENTRAL ZONE PROPERTY CORP., 1 APP.DIV.2D 353, 149
N.Y.S.2D 840 (SUP. CT. 1956), AFF'D PER CURIAM, 3 N.Y.2D 729, 143
N.E.2D 516 (1957); MARTIN FOUNDATION V. PHILLIP-JONES CORP., 283
APP.DIV.  729, 127 N.Y.S.2D 649 (SUP. CT. 1954); ABRAMS V. TEXTILE
REALTY CORP., 197 MISC. 25, 93 N.Y.S.2D 808 (SUP. CT. 1949); 97
N.Y.S.2D 492 (OP. OF REFEREE); LONG PARK, INC. V. TRENTON-NEW BRUNSWICK
THEATRES CO., 274 APP.DIV.  988, 84 N.Y.S.2D 482 (SUP. CT. 1948), AFF'D
PER CURIAM, 299 N.Y. 718, 87 N.E.2D 126 (1949); SMITH, SUPRA, N. 18;
SHAREHOLDER SUITS:  PECUNIARY BENEFIT UNNECESSARY FOR COUNSEL FEE
AWARD, 13 STAN.L.REV.  146 (1960). 

/23/  MURPHY V. NORTH AMERICAN LIGHT & POWER CO., 33 F.SUPP.  567,
570 (D.C.S.D.N.Y. 1940). 

/24/  CF. HORNSTEIN, SUPRA, N. 18, AT 659, 662-663.     MR. JUSTICE
BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

I SUBSTANTIALLY AGREE WITH PARTS II AND III OF THE COURT'S OPINION
HOLDING THAT THESE STOCKHOLDERS HAVE SUFFICIENTLY PROVED A VIOLATION OF
SEC. 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934 AND ARE THUS ENTITLED
TO RECOVER WHATEVER DAMAGES THEY HAVE SUFFERED AS A RESULT OF THE
MISLEADING CORPORATE STATEMENTS, OR PERHAPS TO AN EQUITABLE SETTING
ASIDE OF THE MERGER ITSELF.  I DO NOT AGREE, HOWEVER, TO WHAT APPEARS
TO BE THE HOLDING IN PART IV THAT STOCKHOLDERS WHO HIRE LAWYERS TO
PROSECUTE THEIR CLAIMS IN SUCH A CASE CAN RECOVER ATTORNEYS' FEES IN
THE ABSENCE OF A VALID CONTRACTUAL AGREEMENT SO PROVIDING OR AN
EXPLICIT STATUTE CREATING SUCH A RIGHT OF RECOVERY.  THE COURTS ARE
INTERPRETERS, NOT CREATORS, OF LEGAL RIGHTS TO RECOVER AND IF THERE IS
A NEED FOR RECOVERY OF ATTORNEYS' FEES TO EFFECTUATE THE POLICIES OF
THE ACT HERE INVOLVED, THAT NEED SHOULD IN MY JUDGMENT BE MET BY
CONGRESS, NOT BY THIS COURT. 

ARNOLD I. SHURE ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE ROBERT A. SPRECHER, EDWARD N. GADSBY, AND MOZART G.
RATNER. 

ALBERT E. JENNER, JR., ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM
ON THE BRIEF WERE JEROLD S. SOLOVY AND JOHN G. STIFLER. 

SOLICITOR GENERAL GRISWOLD, LAWRENCE G. WALLACE, PHILIP A. LOOMIS,
JR., DAVID FERBER, AND MEYER EISENBERG FILED A BRIEF FOR THE UNITED
STATES AS AMICUS CURIAE. 
..END :







TURNER V. UNITED STATES, 396 U.S. 398 


       TURNER V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT

        NO. 190.  ARGUED OCTOBER 15, 1969-- DECIDED JANUARY 20,

           1970 


NARCOTICS AGENTS STOPPED A CAR IN WHICH PETITIONER WAS RIDING AND
FOUND A PACKAGE, WHICH PETITIONER HAD THROWN AWAY, CONTAINING ABOUT 15
GRAMS OF A COCAINE AND SUGAR MIXTURE, 5% OF WHICH WAS COCAINE, AND A
PACKAGE IN THE CAR WEIGHING ABOUT 48 GRAMS CONSISTING OF A TOTAL OF 275
GLASSINE BAGS CONTAINING A HEROIN MIXTURE, 15.2% OF WHICH WAS HEROIN. 
PETITIONER WAS INDICTED AND CONVICTED OF FOUR NARCOTICS VIOLATIONS:
(1) KNOWINGLY RECEIVING, CONCEALING, AND FACILITATING THE
TRANSPORTATION AND CONCEALMENT OF HEROIN KNOWING THE HEROIN HAD BEEN
ILLEGALLY IMPORTED INTO THE UNITED STATES, IN VIOLATION OF 21 U.S.C.
174; (2) KNOWINGLY PURCHASING, POSSESSING, DISPENSING, AND DISTRIBUTING
HEROIN NOT IN OR FROM THE ORIGINAL STAMPED PACKAGE, IN VIOLATION OF 26
U.S.C. 4704(A); (3) SAME AS THE FIRST OFFENSE WITH REGARD TO THE
COCAINE SEIZED; AND (4) SAME AS THE SECOND OFFENSE WITH REGARD TO THE
COCAINE.  AT THE TRIAL THE GOVERNMENT PRESENTED EVIDENCE OF THE SEIZURE
OF THE PACKAGES BUT OFFERED NO EVIDENCE ON THE ORIGIN OF THE DRUGS, AND
PETITIONER DID NOT TESTIFY.  SECTION 174 PROVIDES THAT WHEN A
"DEFENDANT IS SHOWN TO HAVE OR TO HAVE HAD POSSESSION OF THE NARCOTIC
DRUG, SUCH POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE
CONVICTION UNLESS THE DEFENDANT EXPLAINS THE POSSESSION TO THE
SATISFACTION OF THE JURY."  SECTION 4704(A) STATES THAT:  "IT SHALL BE
UNLAWFUL FOR ANY PERSON TO PURCHASE, SELL, DISPENSE, OR DISTRIBUTE
NARCOTIC DRUGS EXCEPT IN THE ORIGINAL STAMPED PACKAGE OR FROM THE
ORIGINAL STAMPED PACKAGE; AND THE ABSENCE OF APPROPRIATE TAXPAID STAMPS
FROM NARCOTIC DRUGS SHALL BE PRIMA FACIE EVIDENCE OF A VIOLATION OF
THIS SUBSECTION . . . . "  WITH RESPECT TO THE FIRST AND THIRD
OFFENSES, THE TRIAL JUDGE CHARGED THE JURY IN ACCORD WITH SEC. 174 THAT
IT COULD INFER FROM PETITIONER'S UNEXPLAINED POSSESSION OF THE HEROIN
AND COCAINE THAT PETITIONER KNEW THE DRUGS HAD BEEN ILLEGALLY
IMPORTED.  WITH RESPECT TO THE SECOND AND FOURTH OFFENSES, THE TRIAL
JUDGE READ TO THE JURY THE PRIMA FACIE EVIDENCE PROVISION OF SEC.
4704(A).  IN THE COURT OF APPEALS PETITIONER ARGUED THAT THE JUDGE'S
INSTRUCTIONS ON THE INFERENCES THAT THE JURY MIGHT DRAW FROM
UNEXPLAINED POSSESSION OF THE DRUGS VIOLATED HIS PRIVILEGE AGAINST SELF
INCRIMINATION BY PENALIZING HIM FOR NOT TESTIFYING.  THE COURT OF
APPEALS REJECTED THIS CLAIM AND AFFIRMED, FINDING THAT THE INFERENCES
WERE PERMISSIBLE UNDER PRIOR DECISIONS.  HELD: 

1.  THE TRIAL COURT'S INSTRUCTIONS ON THE INFERENCE THAT MIGHT BE
DRAWN UNDER SEC. 174 WITH RESPECT TO PETITIONER'S POSSESSION OF HEROIN
DID NOT VIOLATE HIS RIGHT TO BE CONVICTED ONLY ON A FINDING OF GUILT
BEYOND A REASONABLE DOUBT AND DID NOT PLACE IMPERMISSIBLE PRESSURE ON
HIM TO TESTIFY IN HIS OWN DEFENSE.  PP. 405-418. 

(A) SINCE IT IS ABUNDANTLY CLEAR THAT LITTLE, IF ANY, HEROIN IS MADE
IN THIS COUNTRY AND THAT THEREFORE VIRTUALLY ALL HEROIN CONSUMED IN THE
UNITED STATES IS ILLEGALLY IMPORTED, SEC. 174 IS VALID INSOFAR AS IT
PERMITS A JURY TO INFER THAT HEROIN POSSESSED HERE IS A SMUGGLED DRUG,
WHETHER JUDGED BY THE MORE-LIKELY-THAN-NOT STANDARD APPLIED IN LEARY V.
UNITED STATES, 395 U.S. 6, OR BY THE MORE EXACTING REASONABLE-DOUBT
STANDARD.  PP. 408-416. 

(B) WHILE THERE IS NO PROOF THAT PETITIONER KNEW WHO SMUGGLED HIS
HEROIN OR HOW THE SMUGGLING WAS DONE, HE, LIKE OTHERS WHO SELL OR
DISTRIBUTE THE DRUG, WAS UNDOUBTEDLY AWARE OF THE "HIGH PROBABILITY"
THAT THE HEROIN IN HIS POSSESSION ORIGINATED IN A FOREIGN COUNTRY.  PP.
416-418. 

2.  THE PRESUMPTION UNDER SEC. 174 WILL NOT SUPPORT PETITIONER'S
CONVICTION WITH RESPECT TO THE POSSESSION OF COCAINE, AS THE FACTS SHOW
THAT MUCH MORE COCAINE IS LAWFULLY PRODUCED IN, THAN IS SMUGGLED INTO,
THIS COUNTRY AND THAT THE AMOUNT OF COCAINE STOLEN FROM LEGAL SOURCES
IS SUFFICIENTLY LARGE TO NEGATE THE INFERENCE THAT PETITIONER'S COCAINE
CAME FROM ABROAD OR THAT HE MUST HAVE KNOWN THAT IT DID.  PP. 418-419. 

3.  THE CONVICTION UNDER SEC. 4704(A) WITH RESPECT TO HEROIN IS
AFFIRMED.  PP. 419-422. 

(A) THE EVIDENCE THAT PETITIONER POSSESSED THE HEROIN PACKAGED IN
275 GLASSINE BAGS WITHOUT REVENUE STAMPS ATTACHED ESTABLISHED THAT THE
HEROIN WAS IN THE PROCESS OF BEING DISTRIBUTED, AN ACT PROSCRIBED BY
THE STATUTE.  P. 420. 

(B) WHEN A JURY RETURNS A GUILTY VERDICT ON A COUNT CHARGING SEVERAL
ACTS IN THE CONJUNCTIVE, AS HERE, THE VERDICT NORMALLY STANDS IF
EVIDENCE IS SUFFICIENT WITH RESPECT TO ANY ONE OF THE ACTS CHARGED.  P.
420. 

(C) THE CONVICTION CAN ALSO BE SUSTAINED ON THE BASIS OF THE
INFERENCE IN SEC. 4704(A) OF PURCHASING THE HEROIN NOT IN OR FROM A
STAMPED PACKAGE, AS THERE IS NO REASONABLE DOUBT THAT THE POSSESSOR OF
HEROIN, WHO PRESUMABLY PURCHASED IT, DID NOT PURCHASE IT IN OR FROM AN
ORIGINAL STAMPED PACKAGE IN VIEW OF THE FACT THAT NO LAWFULLY
MANUFACTURED OR LAWFULLY IMPORTED HEROIN IS FOUND IN THIS COUNTRY.  PP.
421-422. 

4.  PETITIONER'S CONVICTION WITH RESPECT TO COCAINE BASED ON THE
SEC. 4704(A) INFERENCE IS NOT BASED UPON SUFFICIENT EVIDENCE.  PP. 422
424. 

(A) PETITIONER'S BARE POSSESSION OF A SMALL QUANTITY OF A COCAINE
AND SUGAR MIXTUREDOESNOT ESTABLISH THAT HE WAS DISPENSING OR
DISTRIBUTING THE DRUG.  P. 423. 

(B) THE POSSIBILITY THAT PETITIONER EITHER STOLE THE COCAINE IN OR
FROM A STAMPED PACKAGE OR OBTAINED IT FROM A STAMPED PACKAGE IN THE
POSSESSION OF A THIEF IS SUFFICIENTLY REAL THAT A CONVICTION CANNOT BE
RESTED SOLELY UPON THE PRESUMPTION.  PP. 423-424. 

(C) TO THE EXTENT THAT CASEY V. UNITED STATES, 276 U.S. 413, GIVES
GENERAL APPROVAL TO THE SEC. 4704(A) PRESUMPTION, IT IS LIMITED BY THIS
DECISION.  P. 424. 

404 F.2D 782, AFFIRMED IN PART AND REVERSED IN PART. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS FOUND GUILTY BY A JURY ON FOUR COUNTS CHARGING
VIOLATIONS OF THE FEDERAL NARCOTICS LAWS.  THE ISSUE BEFORE US IS THE
VALIDITY OF THE PROVISIONS OF SEC. 2 OF THE ACT OF FEBRUARY 9, 1909, 35
STAT. 614, AS AMENDED, 21 U.S.C. 174, AND 26 U.S.C. 4704(A) WHICH
AUTHORIZE AN INFERENCE OF GUILT FROM THE FACT OF POSSESSION OF NARCOTIC
DRUGS, IN THIS CASE HEROIN AND COCAINE. 

THE CHARGES AROSE FROM SEIZURES BY FEDERAL NARCOTICS AGENTS OF TWO
PACKAGES OF NARCOTICS.  ON JUNE 1, 1967, TURNER AND TWO COMPANIONS WERE
ARRESTED IN WEEHAWKEN, NEW JERSEY, SHORTLY AFTER THEIR AUTOMOBILE
EMERGED FROM THE LINCOLN TUNNEL.  WHILE THE COMPANIONS WERE BEING
SEARCHED BUT BEFORE TURNER WAS SEARCHED, THE ARRESTING AGENTS SAW
TURNER THROW A PACKAGE TO THE TOP OF A NEARBY WALL.  THE PACKAGE WAS
RETRIEVED AND WAS FOUND TO BE A FOIL PACKAGE WEIGHING 14.68 GRAMS AND
CONTAINING A MIXTURE OF COCAINE HYDROCHLORIDE AND SUGAR, 5% OF WHICH
WAS COCAINE.  GOVERNMENT AGENTS THEREAFTER FOUND A TINFOIL PACKAGE
CONTAINING HEROIN UNDER THE FRONT SEAT OF THE CAR.  THIS PACKAGE
WEIGHED 48.25 GRAMS AND CONTAINED A MIXTURE OF HEROIN, CINCHONAL
ALKALOID, MANNITOL, AND SUGAR, 15.2% OF THE MIXTURE BEING HEROIN. 
UNLIKE THE COCAINE MIXTURE, THE HEROIN MISTURE WAS PACKAGED WITHIN THE
TINFOIL WRAPPING IN SMALL DOUBLE GLASSINE BAGS; IN THE SINGLE TINFOIL
PACKAGE THERE WERE 11 BUNDLES OF BAGS, EACH BUNDLE CONTAINING 25 BAGS
(A TOTAL OF 275 BAGS).  THERE WERE NO FEDERAL TAX STAMPS AFFIXED TO THE
PACKAGE CONTAINING THE COCAINE OR TO THE GLASSINE BAGS OR OUTER WRAPPER
ENCLOSING THE HEROIN. 

PETITIONER WAS INDICTED ON TWO COUNTS RELATING TO THE HEROIN AND TWO
COUNTS RELATING TO THE COCAINE.  THE FIRST COUNT CHARGED THAT TURNER
VIOLATED 21 U.S.C. 174 /1/  BY RECEIVING, CONCEALING, AND FACILITATING
THE TRANSPORTATION AND CONCEALMENT OF HEROIN WHILE KNOWING THAT THE
HEROIN HAD BEEN UNLAWFULLY IMPORTED INTO THE UNITED STATES.  THE THIRD
COUNT CHARGED THE SAME OFFENSE WITH REGARD TO THE COCAINE SEIZED.  THE
SECOND COUNT CHARGED THAT PETITIONER PURCHASED, POSSESSED, DISPENSED,
AND DISTRIBUTED HEROIN NOT IN OR FROM THE ORIGINAL STAMPED PACKAGE IN
VIOLATION OF 26 U.S.C. 4704(A).  /2/  THE FOURTH COUNT MADE THE SAME
CHARGE WITH REGARD TO THE COCAINE. 

AT THE TRIAL, THE GOVERNMENT PRESENTED THE EVIDENCE OF THE SEIZURE
OF THE PACKAGES CONTAINING HEROIN AND COCAINE BUT PRESENTED NO EVIDENCE
ON THE ORIGIN OF THE DRUGS POSSESSED BY PETITIONER.  PETITIONER DID NOT
TESTIFY.  WITH REGARD TO COUNTS 1 AND 3, THE TRIAL JUDGE CHARGED THE
JURY IN ACCORD WITH THE STATUTE THAT THE JURY COULD INFER FROM
PETITIONER'S UNEXPLAINED POSSESSION OF THE HEROIN AND COCAINE THAT
PETITIONER KNEW THAT THE DRUGS HE POSSESSED HAD BEEN UNLAWFULLY
IMPORTED.  WITH REGARD TO COUNTS 2 AND 4, THE TRIAL JUDGE READ TO THE
JURY THE STATUTORY PROVISION MAKING POSSESSION OF DRUGS NOT IN A
STAMPED PACKAGE "PRIMA FACIE EVIDENCE" THAT THE DEFENDANT PURCHASED,
SOLD, DISPENSED, OR DISTRIBUTED THE DRUGS NOT IN OR FROM A STAMPED
PACKAGE.  THE JURY RETURNED A VERDICT OF GUILTY ON EACH COUNT. 
PETITIONER WAS SENTENCED TO CONSECUTIVE TERMS OF 10 YEARS' IMPRISONMENT
ON THE FIRST AND THIRD COUNTS; A FIVE-YEAR TERM ON THE SECOND COUNT WAS
TO RUN CONCURRENTLY WITH THE TERM ON THE FIRST COUNT AND A FIVE-YEAR
TERM ON THE FOURTH COUNT WAS TO RUN CONCURRENTLY WITH THE TERM ON THE
THIRD COUNT. 

ON APPEAL TO THE COURT OF APPEALS FOR THE THIRD CIRCUIT, PETITIONER
ARGUED THAT THE TRIAL COURT'S INSTRUCTIONS ON THE INFERENCES THAT THE
JURY MIGHT DRAW FROM UNEXPLAINED POSSESSION OF THE DRUGS CONSTITUTED
VIOLATIONS OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION BY PENALIZING
HIM FOR NOT TESTIFYING ABOUT HIS POSSESSION OF THE DRUGS.  THE COURT OF
APPEALS REJECTED THIS CLAIM AND AFFIRMED, FINDING THAT THE INFERENCES
FROM POSSESSION AUTHORIZED BY THE STATUTES WERE PERMISSIBLE UNDER PRIOR
DECISIONS OF THIS COURT AND THAT THEREFORE THERE WAS NO IMPERMISSIBLE
PENALTY IMPOSED ON PETITIONER'S EXERCISE OF HIS RIGHT NOT TO TESTIFY. 
404 F.2D 782 (1968).  AFTER THE COURT OF APPEALS' DECISION IN THIS
CASE, THIS COURT HELD THAT A SIMILAR STATUTORY PRESUMPTION APPLICABLE
TO THE POSSESSION OF MARIHUANA WAS UNCONSTITUTIONAL AS NOT HAVING A
SUFFICIENT RATIONAL BASIS.  LEARY V. UNITED STATES, 395 U.S. 6 (1969). 
WE GRANTED A WRIT OF CERTIORARI IN THIS CASE TO RECONSIDER IN LIGHT OF
OUR DECISION IN LEARY WHETHER THE INFERENCES AUTHORIZED BY THE STATUTES
HERE AT ISSUE ARE CONSTITUTIONALLY PERMISSIBLE WHEN APPLIED TO THE
POSSESSION OF HEROIN AND COCAINE.  395 U.S. 933. 

I 

THE STATUTORY INFERENCE CREATED BY SEC. 174 HAS BEEN UPHELD BY THIS
COURT WITH RESPECT TO OPIUM AND HEROIN, YEE HEM V. UNITED STATES, 268
U.S. 178 (1925); ROVIARO V. UNITED STATES, 353 U.S. 53 (1957), AS WELL
AS BY AN UNBROKEN LINE OF CASES IN THE COURTS OF APPEALS.  /3/
SIMILARLY, IN A CASE INVOLVING MORPHINE, THIS COURT HAS REJECTED A
CONSTITUTIONAL CHALLENGE TO THE INFERENCE AUTHORIZED BY SEC. 4704(A). 
CASEY V. UNITED STATES, 276 U.S. 413 (1928). 

LEARY V. UNITED STATES, SUPRA, DEALT WITH A STATUTE, 21 U.S.C. 176A,
PROVIDING THAT POSSESSION OF MARIHUANA, UNLESS EXPLAINED TO THE JURY'S
SATISFACTION, "SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE
CONVICTION" FOR SMUGGLING, RECEIVING, CONCEALING, BUYING, SELLING, OR
FACILITATING THE TRANSPORTATION, CONCEALMENT, OR SALE OF THE DRUG,
KNOWING THAT IT HAD BEEN ILLEGALLY IMPORTED.  REFERRING TO PRIOR CASES
/4/  HOLDING THAT A STATUTE AUTHORIZING THE INFERENCE OF ONE FACT FROM
THE PROOF OF ANOTHER IN CRIMINAL CASES MUST BE SUBJECTED TO SCRUTINY BY
THE COURTS TO PREVENT "CONVICTION UPON INSUFFICIENT PROOF," 395 U.S.,AT
37, THE COURT READ THOSE CASES AS REQUIRING THE INVALIDATION OF THE
STATUTORILY AUTHORIZED INFERENCE "UNLESS IT CAN AT LEAST BE SAID WITH
SUBSTANTIAL ASSURANCE THAT THE PRESUMED FACT IS MORE LIKELY THAN NOT TO
FLOW FROM THE PROVED FACT ON WHICH IT IS MADE TO DEPEND."  395 U.S.,AT
36.  SINCE, JUDGED BY THIS STANDARD, THE INFERENCE DRAWN FROM THE
POSSESSION OF MARIHUANA WAS INVALID, IT WAS UNNECESSARY TO "REACH THE
QUESTION WHETHER A CRIMINAL PRESUMPTION WHICH PASSES MUSTER WHEN SO
JUDGED MUST ALSO SATISFY THE CRIMINAL 'REASONABLE-DOUBT' STANDARD IF
PROOF OF THE CRIME CHARGED OR AN ESSENTIAL ELEMENT THEREOF DEPENDS UPON
ITS USE."  395 U.S.,AT 36 N. 64. 

WE AFFIRM TURNER'S CONVICTIONS UNDER SECS. 174 AND 4704(A) WITH
RESPECT TO HEROIN (COUNTS 1 AND 2) BUT REVERSE THE CONVICTIONS UNDER
THESE SECTIONS WITH RESPECT TO COCAINE (COUNTS 3 AND 4). 

        II 

WE TURN FIRST TO THE CONVICTION FOR TRAFFICKING IN HEROIN IN
VIOLATION OF SEC. 174.  COUNT 1 CHARGED TURNER WITH (1) KNOWINGLY
RECEIVING, CONCEALING, AND TRANSPORTING HEROIN WHICH (2) WAS ILLEGALLY
IMPORTED AND WHICH (3) HE KNEW WAS ILLEGALLY IMPORTED.  SEE HARRIS V.
UNITED STATES, 359 U.S. 19, 23 (1959).  FOR CONVICTION, IT WAS
NECESSARY FOR THE GOVERNMENT TO PROVE EACH OF THESE THREE ELEMENTS OF
THE CRIME TO THE SATISFACTION OF THE JURY BEYOND A REASONABLE DOUBT. 
THE JURY WAS SO INSTRUCTED AND TURNER WAS FOUND GUILTY. 

THE PROOF WAS THAT TURNER HAD KNOWINGLY POSSESSED HEROIN; SINCE IT
IS ILLEGAL TO IMPORT HEROIN OR TO MANUFACTURE IT HERE, /5/  HE WAS ALSO
CHARGEABLE WITH KNOWING THAT HIS HEROIN HAD AN ILLEGAL SOURCE.  FOR ALL
PRACTICAL PURPOSES, THIS WAS THE GOVERNMENT'S CASE.  THE TRIAL JUDGE,
NOTING THAT THERE WAS NO EVIDENCE OF IMPORTATION OR OF TURNER'S
KNOWLEDGE THAT HIS HEROIN HAD COME FROM ABROAD, FOLLOWED THE USUAL
PRACTICE AND INSTRUCTED THE JURY-- AS SEC. 174 PERMITS BUT DOES NOT
REQUIRE-- THAT POSSESSION OF A NARCOTIC DRUG IS SUFFICIENT EVIDENCE TO
JUSTIFY CONVICTION OF THE CRIME DEFINED IN SEC. 174.  /6/ 

THE JURY, HOWEVER, EVEN IF IT BELIEVED TURNER HAD POSSESSED HEROIN,
WAS NOT REQUIRED BY THE INSTRUCTIONS TO FIND HIM GUILTY.  THE JURY WAS
INSTRUCTED THAT IT WAS THE SOLE JUDGE OF THE FACTS AND THE INFERENCES
TO BE DRAWN THEREFROM, THAT ALL ELEMENTS OF THE CRIME MUST BE PROVED
BEYOND A REASONABLE DOUBT, AND THAT THE INFERENCE AUTHORIZED BY THE
STATUTE DID NOT REQUIRE THE DEFENDANT TO PRESENT EVIDENCE.  TO CONVICT,
THE JURY WAS INFORMED, IT "MUST BE SATISFIED BY THE TOTALITY OF THE
EVIDENCE IRRESPECTIVE OF THE SOURCE FROM WHICH IT COMES OF THE GUILT OF
THE DEFENDANT . . . . "  THE JURY WAS OBLIGATED BY ITS INSTRUCTIONS TO
ASSESS FOR ITSELF THE PROBATIVE FORCE OF POSSESSION AND THE WEIGHT, IF
ANY, TO BE ACCORDED THE STATUTORY INFERENCE.  IF IT IS TRUE, AS THE
GOVERNMENT CONTENDS, THAT HEROIN IS NOT PRODUCED IN THE UNITED STATES
AND THAT ANY HEROIN POSSESSED HERE MUST HAVE ORIGINATED ABROAD, THE
JURY, BASED ON ITS OWN STORE OF KNOWLEDGE, MAY WELL HAVE SHARED THIS
VIEW AND CONCLUDED THAT TURNER WAS EQUALLY WELL INFORMED. 
ALTERNATIVELY, THE JURY MAY HAVE BEEN WITHOUT ITS OWN INFORMATION
CONCERNING THE SOURCES OF HEROIN, AND MAY HAVE CONVICTED TURNER IN
RELIANCE ON THE INFERENCE PERMITTED BY THE STATUTE, PERHAPS REASONING
THAT THE STATUTE REPRESENTED AN OFFICIAL DETERMINATION THAT HEROIN IS
NOT A DOMESTIC PRODUCT.  /7/ 

WHATEVER COURSE THE JURY TOOK, IT FOUND TURNER GUILTY BEYOND A
REASONABLE DOUBT AND THE QUESTION ON REVIEW IS THE SUFFICIENCY OF THE
EVIDENCE, OR MORE PRECISELY, THE SOUNDNESS OF INFERRING GUILT FROM
PROOF OF POSSESSION ALONE.  SINCE THE JURY MIGHT HAVE RELIED HEAVILY ON
THE INFERENCES AUTHORIZED BY THE STATUTE AND INCLUDED IN THE COURT'S
INSTRUCTIONS, OUR PRIMARY FOCUS IS ON THE VALIDITY OF THE EVIDENTIARY
RULE CONTAINED IN SEC. 174.  /8/ 

WE CONCLUDE FIRST THAT THE JURY WAS WHOLLY JUSTIFIED IN ACCEPTING
THE LEGISLATIVE JUDGMENT-- IF IN FACT THAT IS WHAT THE JURY DID-- THAT
POSSESSION OF HEROIN IS EQUIVALENT TO POSSESSING IMPORTED HEROIN.  WE
HAVE NO REASONABLE DOUBT THAT AT THE PRESENT TIME HEROIN IS NOT
PRODUCED IN THIS COUNTRY AND THAT THEREFORE THE HEROIN TURNER HAD WAS
SMUGGLED HEROIN. 

FOR 60 YEARS DEFENDANTS CHARGED UNDER THE STATUTE HAVE KNOWN THAT THE
THE INFERENCE IS REBUTTABLE BY EVIDENCE THAT THEIR HEROIN ORIGINATED
HERE, AND THAT THE INFERENCE ITSELF IS SUBJECT TO CHALLENGE FOR LACK OF
SUFFICIENT CONNECTION BETWEEN THE PROVED FACT OF POSSESSION AND THE
PRESUMED FACT THAT THEIRS WAS SMUGGLED MERCHANDISE.  MOBILE, J. &
K.C.R. CO. V. TURNIPSEED, 219 U.S. 35, 43 (1910).  GIVEN THE STATUTORY
INFERENCE AND ABSENT REBUTTAL EVIDENCE, AS FAR AS A DEFENDANT IS
CONCERNED THE SEC. 174 CRIME IS THE KNOWING POSSESSION OF HEROIN. 
HENCE, IF HE IS TO AVOID CONVICTION, HE FACES THE URGENT NECESSITY
EITHER TO REBUT OR TO CHALLENGE SUCCESSFULLY THE POSSESSION INFERENCE
BY DEMONSTRATING THE FACT OR THE LIKELIHOOD OF A DOMESTIC SOURCE FOR
HEROIN, NOT NECESSARILY BY HIS OWN TESTIMONY BUT THROUGH THE TESTIMONY
OF OTHERS WHO ARE FAMILIAR WITH THE TRAFFIC IN DRUGS, WHETHER
GOVERNMENT AGENTS OR PRIVATE EXPERTS.  OVER THE YEARS, THOUSANDS OF
DEFENDANTS, MOST OF THEM REPRESENTED BY RETAINED OR APPOINTED COUNSEL,
HAVE BEEN CONVICTED UNDER SEC. 174.  ALTHOUGH THERE WAS OPPORTUNITY IN
EVERY CASE TO CHALLENGE OR REBUT THE INFERENCE BASED ON POSSESSION, WE
ARE CITED TO NO CASE, AND WE KNOW OF NONE, WHERE SUBSTANTIAL EVIDENCE
SHOWING DOMESTIC PRODUCTION OF HEROIN HAS COME TO LIGHT.  INSTEAD, THE
INFERENCE AUTHORIZED BY THE SECTION, ALTHOUGH FREQUENTLY CHALLENGED,
HAS BEEN UPHELD IN THIS COURT AND IN COUNTLESS CASES IN THE DISTRICT
COURTS AND COURTS OF APPEALS, THESE CASES IMPLICITLY REFLECTING THE
PREVAILING JUDICIAL VIEW THAT HEROIN IS NOT MADE IN THIS COUNTRY BUT
RATHER IS IMPORTED FROM ABROAD.  IF THIS VIEW IS ERRONEOUS AND HEROIN
IS OR HAS BEEN PRODUCED IN THIS COUNTRY IN COMMERCIAL QUANTITIES, IT IS
DIFFICULT TO BELIEVE THAT RESOURCEFUL LAWYERS WITH ADVERSARY
PROCEEDINGS AT THEIR DISPOSAL WOULD NOT LONG SINCE HAVE DISCOVERED THE
TRUTH AND PLACED IT ON RECORD. 

THIS VIEW IS SUPPORTED BY OTHER OFFICIAL SOURCES.  IN 1956, AFTER
EXTENSIVE HEARINGS, THE SENATE COMMITTEE ON THE JUDICIARY FOUND NO
EVIDENCE THAT HEROIN IS PRODUCED COMMERCIALLY IN THIS COUNTRY.  /10/
THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE STATED IN 1967 THAT "(ALL THE HEROIN THAT REACHES THE AMERICAN
USER IS SMUGGLED INTO THE COUNTRY FROM ABROAD, THE MIDDLE EAST BEING
THE REPUTED PRIMARY POINT OF ORIGIN."  /11/ 

THE FACTORS UNDERLYING THESE JUDGMENTS MAY BE SUMMARIZED AS FOLLOWS:
FIRST, IT IS PLAIN ENOUGH THAT IT IS ILLEGAL BOTH TO IMPORT HEROIN
INTO THIS COUNTRY /12/  AND TO MANUFACTURE IT HERE; /13/  HEROIN IS
CONTRABAND AND IS SUBJECT TO SEIZURE.  /14/ 

SECOND, HEROIN IS A DERIVATIVE OF OPIUM AND CAN BE MANUFACTURED FROM
OPIUM OR FROM MORPHINE OR CODEINE, WHICH ARE ALSO DERIVED FROM OPIUM. 
/15/  WHETHER HEROIN CAN BE SYNTHESIZED IS DISPUTED, BUT THERE IS NO
EVIDENCE THAT IT IS BEING SYNTHESIZED IN THIS COUNTRY.  /16/ 

THIRD, OPIUM IS DERIVED FROM THE OPIUM POPPY WHICH CANNOT BE GROWN
IN THIS COUNTRY WITHOUT A LICENSE.  /17/  NO LICENSES ARE OUTSTANDING
FOR COMMERCIAL CULTIVATION /18/  AND THERE IS NO EVIDENCE THAT THE
OPIUM POPPY IS ILLEGALLY GROWN IN THE UNITED STATES.  /19/     FOURTH,
THE LAW FORBIDS THE IMPORTATION OF ANY OPIUM PRODUCT EXCEPT CRUDE OPIUM
REQUIRED FOR MEDICAL AND SCIENTIFIC PURPOSES; /20/  IMPORTATION OF
CRUDE OPIUM FOR THE PURPOSE OF MAKING HEROIN IS SPECIFICALLY
FORBIDDEN.  /21/  SIZABLE AMOUNTS OF CRUDE OPIUM ARE LEGALLY IMPORTED
AND USED TO MAKE MORPHINE AND CODEINE.  /22/ 

FIFTH, THE FLOW OF LEGALLY IMPORTED OPIUM AND OF LEGALLY
MANUFACTURED MORPHINE AND CODEINE IS CONTROLLED TOO TIGHTLY TO PERMIT
ANY SIGNIFICANT POSSIBILITY THAT HEROIN IS MANUFACTURED OR DISTRIBUTED
BY THOSE LEGALLY LICENSED TO DEAL IN OPIUM, MORPHINE, OR CODEINE. 
/23/ 

SIXTH, THERE ARE RECURRING THEFTS OF OPIUM, MORPHINE, AND CODEINE
FROM LEGAL CHANNELS WHICH COULD BE USED FOR THE DOMESTIC, CLANDESTINE
PRODUCTION OF HEROIN.  /24/  IT IS EXTREMELY UNLIKELY THAT HEROIN WOULD
BE MADE FROM CODEINE SINCE THE PROCESS INVOLVED PRODUCES AN
UNMANAGEABLE, PENETRATING STENCH WHICH IT WOULD BE VERY DIFFICULT TO
CONCEAL.  /25/  CLANDESTINE MANUFACTURE OF HEROIN FROM OPIUM AND
MORPHINE WOULD NOT BESUBJECTTO THIS DIFFICULTY; BUT, EVEN ON THE
EXTREMELY UNLIKELY ASSUMPTION THAT ALL OPIUM AND MORPHINE STOLEN EACH
YEAR IS USED TO MANUFACTURE HEROIN, THE HEROIN SO PRODUCED WOULD AMOUNT
TO ONLY A TINY FRACTION (LESS THEN 1%) OF THE ILLICIT HEROIN ILLEGALLY
IMPORTED AND MARKETED HERE.  /26/  MOREOVER, A CLANDESTINE LABORATORY
MANUFACTURING HEROIN HAS NOT BEEN DISCOVERED IN MANY YEARS.  /27/ 

CONCEDEDLY, HEROIN COULD BE MADE IN THIS COUNTRY, AT LEAST IN TINY
AMOUNTS.  BUT THE OVERWHELMING EVIDENCE IS THAT THE HEROIN CONSUMED IN
THE UNITED STATES IS ILLEGALLY IMPORTED.  TO POSSESS HEROIN IS TO
POSSESS IMPORTED HEROIN.  WHETHER JUDGED BY THE MORE-LIKELY-THAN-NOT
STANDARD APPLIED IN LEARY V. UNITED STATES, SUPRA, OR BY THE MORE
EXACTING REASONABLE-DOUBT STANDARD NORMALLY APPLICABLE IN CRIMINAL
CASES, SEC. 174 IS VALID INSOFAR AS IT PERMITS A JURY TO INFER THAT
HEROIN POSSESSED IN THIS COUNTRY IS A SMUGGLED DRUG.  IF THE JURY
RELIED ON THE SEC. 174 INSTRUCTION, IT WAS ENTITLED TO DO SO.  /28/ 

GIVEN THE FACT THAT LITTLE IF ANY HEROIN IS MADE IN THE UNITED
STATES, TURNER DOUBTLESS KNEW THAT THE HEROIN HE HAD CAME FROM ABROAD. 
THERE IS NO PROOF THAT HE HAD SPECIFIC KNOWLEDGE OF WHO SMUGGLED HIS
HEROIN OR WHEN OR HOW THE SMUGGLING WAS DONE, BUT WE ARE CONFIDENT THAT
HE WAS AWARE OF THE "HIGH PROBABILITY" THAT THE HEROIN IN HIS
POSSESSION HAD ORIGINATED IN A FOREIGN COUNTRY.  CF. LEARY V. UNITED
STATES, SUPRA, AT 45-53.  /29/ 

IT MAY BE THAT THE ORDINARY JURY WOULD NOT ALWAYS KNOW THAT HEROIN
ILLEGALLY CIRCULATING IN THIS COUNTRY IS NOT MANUFACTURED HERE.  BUT
TURNER AND OTHERS WHO SELL OR DISTRIBUTE HEROIN ARE IN A CLASS APART. 
/30/  SUCH PEOPLE HAVE REGULAR CONTACT WITH A DRUG WHICH THEY KNOW
CANNOT BE LEGALLY BOUGHT OR SOLD; THEIR LIVELIHOOD DEPENDS ON ITS
AVAILABILITY; SOME OF THEM HAVE ACTUALLY ENGAGED IN THE SMUGGLING
PROCESS.  THE PRICE, SUPPLY, AND QUALITY VARY WIDELY; /31/  THE MARKET
FLUCTUATES WITH THE ABILITY OF SMUGGLERS TO OUTWIT CUSTOMS AND
NARCOTICS AGENTS AT HOME AND ABROAD.  /32/  THE FACTS CONCERNING HEROIN
ARE AVAILABLE FROM MANY SOURCES, FREQUENTLY IN THE POPULAR MEDIA. 
"COMMON SENSE" (LEARY V. UNITED STATES, SUPRA, AT 46) TELLS US THAT
THOSE WHO TRAFFIC IN HEROIN WILL INEVITABLY BECOME AWARE THAT THE
PRODUCT THEY DEAL IN IS SMUGGLED, /33/  UNLESS THEY PRACTICE A STUDIED
IGNORANCE TO WHICH THEY ARE NOT ENTITLED.  /34/  WE THEREFORE HAVE
LITTLE DOUBT THAT THE INFERENCE OF KNOWLEDGE FROM THE FACT OF
POSSESSING SMUGGLED HEROIN IS A SOUND ONE; HENCE THE COURT'S
INSTRUCTIONS ON THE INFERENCE DID NOT VIOLATE THE RIGHT OF TURNER TO BE
CONVICTED ONLY ON A FINDING OF GUILT BEYOND A REASONABLE DOUBT AND DID
NOT PLACE IMPERMISSIBLE PRESSURE UPON HIM TO TESTIFY IN HIS OWN
DEFENSE.  /35/ HIS CONVICTION ON COUNT I MUST BE AFFIRMED. 

        III 

TURNING TO THE SAME SEC. 174 PRESUMPTION WITH RESPECT TO COCAINE, WE
REACH A CONTRARY RESULT.  IN ERWING V. UNITED STATES, 323 F.2D 674
(C.A. 9TH CIR. 1963), A CASE INVOLVING A PROSECUTION FOR DEALING IN
COCAINE, TWO EXPERTS HAD TESTIFIED, ONE FOR THE GOVERNMENT AND ONE FOR
THE DEFENSE.  IT WAS APPARENT FROM THE TESTIMONY THAT WHILE IT IS
ILLEGAL TO IMPORT COCAINE, COCA LEAVES, FROM WHICH COCAINE IS PREPARED,
ARE LEGALLY IMPORTED FOR PROCESSING INTO COCAINE TO BE USED FOR MEDICAL
PURPOSES.  THERE WAS NO EVIDENCE THAT SIZABLE AMOUNTS OF COCAINE ARE
EITHER LEGALLY IMPORTED OR SMUGGLED.  THE TRIAL COURT INSTRUCTED ON THE
SEC. 174 PRESUMPTION AND CONVICTION FOLLOWED, BUT THE COURT OF APPEALS
FOR THE NINTH CIRCUIT REVERSED, FINDING THE PRESUMPTION INSUFFICIENTLY
SOUND TO PERMIT CONVICTION. 

SUPPLEMENTING THE FACTS PRESENTED IN ERWING, SUPRA, THE UNITED
STATES NOW ASSERTS THAT SUBSTANTIAL AMOUNTS OF COCAINE ARE SMUGGLED
INTO THE UNITED STATES.  HOWEVER, MUCH MORE COCAINE IS LAWFULLY
PRODUCED IN THIS COUNTRY THAN IS SMUGGLED INTO THIS COUNTRY.  /36/  THE
UNITED STATES CONCEDES THAT THEFTS FROM LEGAL SOURCES, THOUGH TOTALING
CONSIDERABLY LESS THAN THE TOTAL SMUGGLED, /37/  ARE STILL SUFFICIENTLY
LARGE TO MAKE THE SEC. 174 PRESUMPTION INVALID AS APPLIED TO TURNER'S
POSSESSION OF COCAINE.  /38/  BASED ON OUR OWN EXAMINATION OF THE FACTS
NOW BEFORE US, WE REACH THE SAME CONCLUSION.  APPLYING THE MORE-LIKELY
THAN-NOT STANDARD EMPLOYED IN LEARY, SUPRA, WE CANNOT BE SUFFICIENTLY
SURE EITHER THAT THE COCAINE THAT TURNER POSSESSED CAME FROM ABROAD OR
THAT TURNER MUST HAVE KNOWN THAT IT DID.  THE JUDGMENT ON COUNT 3 MUST
BE REVERSED.  /39/

        IV 

26 U.S.C. 4704(A) /40/  MAKES IT UNLAWFUL TO PURCHASE, SELL,
DISPENSE, OR DISTRIBUTE A NARCOTIC DRUG NOT IN OR FROM THE ORIGINAL
PACKAGE BEARING TAX STAMPS.  IN THIS CASE, COUNT 2 CHARGED THAT TURNER
KNOWINGLY PURCHASED, DISPENSED, AND DISTRIBUTED HEROIN HYDROCHLORIDE
NOT IN OR FROM THE ORIGINAL STAMPED PACKAGE.  /41/  COUNT 4 MADE THE
IDENTICAL CHARGE WITH RESPECT TO COCAINE.  SECTION 4704(A) ALSO
PROVIDES THAT THE ABSENCE OF APPROPRIATE TAX STAMPS SHALL BE PRIMA
FACIE EVIDENCE OF A VIOLATION BY THE PERSON IN WHOSE POSSESSION THE
DRUGS ARE FOUND.  THIS PROVISION WAS READ BY THE TRIAL JUDGE TO THE
JURY. 

THE CONVICTION ON COUNT 2 WITH RESPECT TO HEROIN MUST BE AFFIRMED. 
SINCE THE ONLY EVIDENCE OF A VIOLATION INVOLVING HEROIN WAS TURNER'S
POSSESSION OF THE DRUG, THE JURY TO CONVICT MUST HAVE BELIEVED THIS
EVIDENCE.  BUT PART AND PARCEL OF THE POSSESSION EVIDENCE AND
INDIVISIBLY LINKED WITH IT, WAS THE FACT THAT TURNER POSSESSED SOME 275
GLASSINE BAGS OF HEROIN WITHOUT REVENUE STAMPS ATTACHED.  THIS
EVIDENCE, WITHOUT MORE, SOLIDLY ESTABLISHED THAT TURNER'S HEROIN WAS
PACKAGED TO SUPPLY INDIVIDUAL DEMANDS AND WAS IN THE PROCESS OF BEING
DISTRIBUTED, AN ACT BARRED BY THE STATUTE.  THE GENERAL RULE IS THAT
WHEN A JURY RETURNS A GUILTY VERDICT ON AN INDICTMENT CHARGING SEVERAL
ACTS IN THE CONJUNCTIVE, AS TURNER'S INDICTMENT DID, THE VERDICT STANDS
IF THE EVIDENCE IS SUFFICIENT WITH RESPECT TO ANY ONE OF THE ACTS
CHARGED.  /42/  HERE THE EVIDENCE PROVED TURNER WAS DISTRIBUTING
HEROIN.  THE STATUS OF THE CASE WITH RESPECT TO THE OTHER ALLEGATIONS
IS IRRELEVANT TO THE VALIDITY OF TURNER'S CONVICTION.  SO, TOO, THE
INSTRUCTION ON THE PRESUMPTION IS BESIDE THE POINT, SINCE EVEN IF
INVALID, IT WAS HARMLESS ERROR; THE JURY MUST HAVE BELIEVED THE
POSSESSION EVIDENCE WHICH IN ITSELF ESTABLISHED A DISTRIBUTION BARRED
BY THE STATUTE. 

MOREOVER, EVEN IF THE EVIDENCE AS TO POSSESSION IS VIEWED AS NOT IN
ITSELF PROVING THAT TURNER WAS DISTRIBUTING HEROIN, HIS CONVICTION MUST
BE AFFIRMED.  TRUE, THE STATUTORY INFERENCE, WHICH ON THIS ASSUMPTION
WOULD ASSUME CRITICAL IMPORTANCE, COULD NOT BE SUSTAINED INSOFAR AS IT
AUTHORIZED AN INFERENCE OR DISPENSING OR DISTRIBUTING (OR OF SELLING IF
THAT ACT HAD BEEN CHARGED), FOR THE BARE FACT OF POSSESSING HEROIN IS
FAR SHORT OF SUFFICIENT EVIDENCE FROM WHICH TO INFER ANY OF THESE
ACTS.  CF. TOT V. UNITED STATES, 319 U.S. 463 (1943); UNITED STATES V.
ROMANO, 382 U.S. 136 (1965).  BUT THE INFERENCE OF PURCHASING IN OR
FROM AN UNSTAMPED PACKAGE IS ANOTHER MATTER. 

THOSE POSSESSING HEROIN HAVE SECURED IT FROM SOME SOURCE.  THE ACT
OF POSSESSING IS ITSELF SUFFICIENT PROOF THAT THE POSSESSOR HAS NOT
RECEIVED IT IN OR FROM THE ORIGINAL STAMPED PACKAGE, SINCE IT IS SO
EXTREMELY UNLIKELY THAT A PACKAGE CONTAINING HEROIN WOULD EVER BE
LEGALLY STAMPED.  ALL HEROIN FOUND IN THIS COUNTRY IS ILLEGALLY
IMPORTED.  THOSE HANDLING NARCOTICS MUST REGISTER; /43/  REGISTERED
PERSONS DO NOT DEAL IN HEROIN AND ONLY REGISTERED IMPORTERS AND
MANUFACTURERS ARE PERMITTED TO PURCHASE STAMPS.  /44/  FOR HEROIN TO BE
FOUND IN A STAMPED PACKAGE, STAMPS WOULD HAVE TO BE STOLEN AND FIXED TO
THE HEROIN CONTAINER AND EVEN THEN THE STAMPS WOULD IMMUNIZE THE
TRANSACTIONS IN THE DRUG ONLY FROM PROSECUTION UNDER SEC. 4704(A); ALL
OTHER LAWS AGAINST TRANSACTIONS IN HEROIN WOULD BE UNAFFECTED BY THE
PRESENCE OF THE STAMPS.  THERE CAN THUS BE NO REASONABLE DOUBT THAT ONE
WHO POSSESSES HEROIN DID NOT OBTAIN IT FROM A STAMPED PACKAGE. 

EVEN SO, OBTAINING HEROIN OTHER THAN IN THE ORIGINAL STAMPED PACKAGE
IS NOT A CRIME UNDER SEC. 4704(A).  OF THE VARIOUS WAYS OF ACQUIRING
HEROIN, E.G., BY GIFT, THEFT, BAILMENT OR PURCHASE, ONLY PURCHASING IS
PROSCRIBED BY THE SECTION.  SINCE HEROIN IS A HIGH-PRICED PRODUCT, /45/
IT WOULD BE VERY UNREASONABLE TO ASSUME THAT ANY SIZABLE NUMBER OF
POSSESSORS HAVE NOT PAID FOR IT, ONE WAY OR ANOTHER.  PERHAPS A FEW
ACQUIRE IT BY GIFT AND SOME HEROIN UNDOUBTEDLY IS STOLEN, BUT MOST
USERS MAY BE PRESUMED TO PURCHASE WHAT THEY USE.  THE SAME MAY BE SAID
FOR THOSE WHO SELL, DISPENSE, OR DISTRIBUTE THE DRUG.  THERE IS NO
REASONABLE DOUBT THAT A POSSESSOR OF HEROIN WHO HAS PURCHASED IT DID
NOT PURCHASE THE HEROIN IN OR FROM THE ORIGINAL STAMPED PACKAGE.  WE
THUS WOULD SUSTAIN THE CONVICTION ON COUNT 2 ON THE BASIS OF A PURCHASE
NOT IN OR FROM A STAMPED PACKAGE EVEN IF THE EVIDENCE OF PACKAGING DID
NOT POINT UNEQUIVOCALLY TO THE CONCLUSION THAT TURNER WAS DISTRIBUTING
HEROIN NOT IN A STAMPED PACKAGE. 

        V 

FINALLY, WE CONSIDER THE VALIDITY OF THE SEC. 4704(A) PRESUMPTION
WITH RESPECT TO COCAINE.  THE EVIDENCE WAS THAT WHILE IN THE CUSTODY OF
THE POLICE, TURNER THREW AWAY A TINFOIL PACKAGE CONTAINING A MIXTURE OF
COCAINE AND SUGAR, WHICH, ACCORDING TO THE GOVERNMENT, IS NOT THE FORM
IN WHICH COCAINE IS DISTRIBUTED FOR MEDICINAL PURPOSES.  /46/
UNQUESTIONABLY, POSSESSION WAS AMPLY PROVED BY THE EVIDENCE, WHICH THE
JURY MUST HAVE BELIEVED SINCE IT RETURNED A VERDICT OF GUILTY.  BUT THE
EVIDENCE WITH RESPECT TO TURNER'S POSSESSION OF COCAINE DOES NOT SO
SURELY DEMONSTRATE THAT TURNER WAS IN THE PROCESS OF DISTRIBUTING THIS
DRUG.  WOULD THE JURY AUTOMATICALLY AND UNEQUIVOCALLY KNOW THAT TURNER
WAS DISTRIBUTING COCAINE SIMPLY FROM THE FACT THAT HE HAD 14.68 GRAMS
OF A COCAINE AND SUGAR MIXTURE?  TRUE, HIS POSSESSION OF HEROIN PROVED
THAT HE WAS DEALING IN DRUGS, BUT HAVING A SMALL QUANTITY OF A COCAINE
AND SUGAR MIXTURE IS ITSELF CONSISTENT WITH TURNER'S POSSESSING THE
COCAINE NOT FOR SALE BUT EXCLUSIVELY FOR HIS PERSONAL USE. 

SINCE TURNER'S POSSESSION OF COCAINE DID NOT CONSTITUTE AN ACT OF
PURCHASING, DISPENSING, OR DISTRIBUTING, THE INSTRUCTION ON THE
STATUTORY INFERENCE BECOMES CRITICAL.  AS IN THE CASE OF HEROIN, BARE
POSSESSION OF COCAINE IS AN INSUFFICIENT PREDICATE FOR CONCLUDING THAT
TURNER WAS DISPENSING OR DISTRIBUTING.  AS FOR THE REMAINING POSSIBLE
VIOLATION, PURCHASING OTHER THAN IN OR FROM THE ORIGINAL STAMPED
PACKAGE, THE PRESUMPTION, VALID AS TO HEROIN, IS INFIRM AS TO COCAINE. 

WHILE ONE CAN BE CONFIDENT THAT COCAINE ILLEGALLY MANUFACTURED FROM
SMUGGLED COCA LEAVES OR ILLEGALLY IMPORTED AFTER MANUFACTURING WOULD
NOT APPEAR IN A STAMPED PACKAGE AT ANY TIME, COCAINE, UNLIKE HEROIN, IS
LEGALLY MANUFACTURED IN THIS COUNTRY; /47/  AND WE HAVE HELD THAT
SUFFICIENT AMOUNTS OF COCAINE ARE STOLEN FROM LEGAL CHANNELS TO RENDER
INVALID THE INFERENCE AUTHORIZED IN SEC. 174 THAT ANY COCAINE POSSESSED
IN THE UNITED STATES IS SMUGGLED COCAINE.  SUPRA, AT 418-419.  SIMILAR
REASONING UNDERMINES THE SEC. 4704(A) PRESUMPTION THAT A DEFENDANT'S
POSSESSION OF UNSTAMPED COCAINE IS PRIMA FACIE EVIDENCE THAT THE DRUG
WAS PURCHASED NOT IN OR FROM THE ORIGINAL STAMPED CONTAINER.  THE THIEF
WHO STEALS COCAINE VERY PROBABLY OBTAINS IT IN OR FROM A STAMPED
PACKAGE.  THERE IS A REASONABLE POSSIBILITY THAT TURNER EITHER STOLE
THE COCAINE HIMSELF OR OBTAINED IT FROM A STAMPED PACKAGE IN POSSESSION
OF THE ACTUAL THIEF.  THE POSSIBILITY IS SUFFICIENTLY REAL THAT A
CONVICTION RESTING ON THE SEC. 4704(A) PRESUMPTION CANNOT BE DEEMED A
CONVICTION BASED ON SUFFICIENT EVIDENCE.  TO THE EXTENT THAT CASEY V.
UNITED STATES, 276 U.S. 413 (1928), IS READ AS GIVING GENERAL APPROVAL
TO THE SEC. 4704(A) PRESUMPTION, IT IS NECESSARILY LIMITED BY OUR
DECISION TODAY.  TURNER'S CONVICTION ON COUNT 4 MUST BE REVERSED. 

FOR THE REASONS STATED ABOVE, WE AFFIRM THE JUDGMENT OF CONVICTION
AS TO COUNTS 1 AND 2 AND REVERSE THE JUDGMENT OF CONVICTION AS TO
COUNTS 3 AND 4. 

          IT IS SO ORDERED. 

/1/  INSOFAR AS HERE RELEVANT, THIS SECTION PROVIDES: 

"WHOEVER FRAUDULENTLY OR KNOWINGLY IMPORTS OR BRINGS ANY NARCOTIC
DRUG INTO THE UNITED STATES OR ANY TERRITORY UNDER ITS CONTROL OR
JURISDICTION, CONTRARY TO LAW, OR RECEIVES, CONCEALS, BUYS, SELLS, OR
IN ANY MANNER FACILITATES THE TRANSPORTATION, CONCEALMENT, OR SALE OF
ANY SUCH NARCOTIC DRUG AFTER BEING IMPORTED OR BROUGHT IN, KNOWING THE
SAME TO HAVE BEEN IMPORTED OR BROUGHT INTO THE UNITED STATES CONTRARY
TOLAW,OR CONSPIRES TO COMMIT ANY OF SUCH ACTS IN VIOLATION OF THE LAWS
OF THE UNITED STATES, SHALL BE IMPRISONED.  . . . 

"WHENEVER ON TRIAL FOR A VIOLATION OF THIS SECTION THE DEFENDANT IS
SHOWN TO HAVE OR TO HAVE HAD POSSESSION OF THE NARCOTIC DRUG, SUCH
POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION
UNLESS THE DEFENDANT EXPLAINS THE POSSESSION TO THE SATISFACTION OF THE
JURY."     HEROIN, A DERIVATIVE OF OPIUM, AND COCAINE, A PRODUCT OF
COCA LEAVES, ARE WITHIN THE MEANING OF THE TERM "NARCOTIC DRUG" AS USED
IN 21 U.S.C. 174.  SEE 21 U.S.C. 171 (WHICH REFERS TO SEC. 3228(G) OF
INT. REV. CODE OF 1939, NOW 26 U.S.C. 4731(A). 

/2/  "IT SHALL BE UNLAWFUL FOR ANY PERSON TO PURCHASE, SELL,
DISPENSE, OR DISTRIBUTE NARCOTIC DRUGS EXCEPT IN THE ORIGINALSTAMPED
PACKAGE OR FROM THE ORIGINAL STAMPED PACKAGE; AND THE ABSENCE OF
APPROPRIATE TAXPAID STAMPS FROM NARCOTIC DRUGS SHALL BE PRIMA FACIE
EVIDENCE OF A VIOLATION OF THIS SUBSECTION BY THE PERSON IN WHOSE
POSSESSION THE SAME MAY BE FOUND."     THE TERM "NARCOTIC DRUGS" IS
DEFINED TO INCLUDE DERIVATIVES OF OPIUM AND PRODUCTS OF COCA LEAVES. 
26 U.S.C. 4731(A). 

/3/  DECISIONS OF THE COURTS OF APPEALS ACCEPTING APPLICATION OF THE
PRESUMPTION TO PERSONS FOUND IN POSSESSION OF OPIUM, MORPHINE, OR
HEROIN INCLUDE GEE WOE V. UNITED STATES, 250 F. 428 (C.A. 5TH CIR.),
CERT. DENIED, 248 U.S. 562 (1918); CHARLEY TOY V. UNITED STATES, 266 F.
326 (C.A. 2D CIR.), CERT. DENIED, 254 U.S. 639 (1920) (SMOKING OPIUM);
COPPERTHWAITE V. UNITED STATES, 37 F.2D 846 (C.A. 6TH CIR. 1930)
(MORPHINE); UNITED STATES V. LISS, 105 F.2D 144 (C.A. 2D CIR. 1939)
(MORPHINE); DEAR CHECK QUONG V. UNITED STATES, 82 U.S.APP.D.C. 8, 160
F.2D 251 (1947) (UNSPECIFIED NARCOTICS); CELLINO V. UNITED STATES, 276
F.2D 941 (C.A. 9TH CIR. 1960) (HEROIN); WALKER V. UNITED STATES, 285
F.2D 52 (C.A. 5TH CIR. 1960) (HEROIN); UNITED STATES V. SAVAGE, 292
F.2D 264 (C.A. 2D CIR.), CERT. DENIED, 368 U.S. 880 (1961) (HEROIN);
UNITED STATES V. GIBSON, 310 F.2D 79 (C.A. 2D CIR. 1962) (HEROIN);
LUCERO V. UNITED STATES, 311 F.2D 457 (C.A. 10TH CIR. 1962), CERT.
DENIED SUB NOM. MAESTAS V. UNITED STATES, 372 U.S. 936 (1963) (HEROIN);
GARCIA V. UNITED STATES, 373 F.2D 806 (C.A. 10TH CIR. 1967) (HEROIN). 

/4/  ESPECIALLY TOT V. UNITED STATES, 319 U.S. 463 (1943), UNITED
STATES V. GAINEY, 380 U.S. 63 (1965), AND UNITED STATES V. ROMANO, 382
U.S. 136 (1965). 

/5/  SEE INFRA, NN. 12, 13. 

/6/  UNDER PRIOR DECISIONS, PRINCIPALLY UNITED STATES V. GAINEY, 380
U.S. 63 (1965), SUCH STATUTORY PROVISIONS AUTHORIZE BUT DO NOT REQUIRE
THE TRIAL JUDGE TO SUBMIT THE CASE TO THE JURY WHEN THE GOVERNMENT
RELIES ON POSSESSION ALONE, AUTHORIZE BUT DO NOT REQUIRE AN INSTRUCTION
TO THE JURY BASED ON THE STATUTE, AND AUTHORIZE BUT DO NOT REQUIRE THE
JURY TO CONVICT BASED ON POSSESSION ALONE.  THE DEFENDANT IS FREE TO
CHALLENGE EITHER THE INFERENCE OF ILLEGAL IMPORTATION OR THE INFERENCE
OF HIS KNOWLEDGE OF THAT FACT, OR BOTH.  HARRIS V. UNITED STATES, 359
U.S. 19, 23 (1959); ROVIARO V. UNITED STATES, 353 U.S. 53, 63 (1957);
YEE HEM V. UNITED STATES, 268 U.S. 178, 185 (1925); UNITED STATES V.
PEEPLES, 377 F.2D 205 (C.A. 2D CIR. 1967); CHAVEZ V. UNITED STATES, 343
F.2D 85 (C.A. 9TH CIR. 1965); GRIEGO V. UNITED STATES, 298 F.2D 845
(C.A. 10TH CIR. 1962).  EVEN WHEN THE DEFENDANT CHALLENGES THE VALIDITY
OF THE INFERENCE AS APPLIED TO HIS CASE, THE INSTRUCTION ON THE
STATUTORY INFERENCE IS NORMALLY GIVEN.  SEE, E.G., MCINTYRE V. UNITED
STATES, 380 F.2D 746 (C.A. 9TH CIR.), CERT. DENIED, 389 U.S. 952
(1967); UNITED STATES V. PEEPLES, SUPRA; VICK V. UNITED STATES, 113
U.S.APP.D.C. 12, 304 F.2D 379 (1962); GRIEGO V. UNITED STATES, SUPRA;
WALKER V. UNITED STATES, 285 F.2D 52 (C.A. 5TH CIR. 1960); UNITED
STATES V. FEINBERG, 123 F.2D 425 (C.A. 7TH CIR. 1941), CERT. DENIED,
315 U.S. 801 (1942).  SEE ALSO ERWING V. UNITED STATES, 323 F.2D 674
(C.A. 9TH CIR. 1963); CAUDILLO V. UNITED STATES, 253 F.2D 513 (C.A. 9TH
CIR.), CERT. DENIED SUB NOM. ROMERO V. UNITED STATES, 357 U.S. 931
(1958). 

/7/ IN UNITED STATES V. PEEPLES, SUPRA, THE JURY, AFTER DELIBERATING
FOR A TIME, ASKED THE JUDGE ABOUT THE PERCENTAGE OF HEROIN IN THE
UNITED STATES THAT IS PRODUCED ILLEGALLY IN THIS COUNTRY.  "AS THERE
WAS NO EVIDENCE IN THE RECORD CONCERNING AREAS OFTHEWORLD WHERE HEROIN
IS PRODUCED, THE JUDGE DECLINED TO ANSWER THE . . . INQUIRY . . . . "
377 F.2D, AT 208.  THE DEFENDANT WAS FOUND GUILTY BY THE JURY; HOWEVER,
THE COURT OF APPEALS REVERSED FOR REASONS NOT DIRECTLY RELATED TO THE
TRIAL JUDGE'S TREATMENT OF THE QUESTION ABOUT THE ORIGINS OF HEROIN
POSSESSED IN THIS COUNTRY. 

/8/  SEE LEARY V. UNITED STATES, 395 U.S. 6, 31-32 (1969); UNITED
STATES V. ROMANO, SUPRA, AT 138-139 (1965); BAILEY V. ALABAMA, 219 U.S.
219, 234-235 (1911). 

ARGUABLY, IN DECLARING POSSESSION TO BE AMPLE EVIDENCE TO CONVICT
FOR TRAFFICKING IN ILLEGALLY IMPORTED DRUGS, CONGRESS IN EFFECT HAS
MADE POSSESSION ITSELF A CRIME AS AN INCIDENT TO ITS POWER OVER FOREIGN
COMMERCE.  CF. FERRY V. RAMSEY, 277 U.S. 88 (1928).  BUT THE CRIME
DEFINEDBYTHE STATUTE IS NOT POSSESSION AND THE COURT HAS REJECTED THIS
BASIS FOR SUSTAINING THIS AND SIMILAR STATUTORY INFERENCES.  LEARY V.
UNITED STATES, SUPRA, AT 34, 37; UNITED STATES V. ROMANO, SUPRA, AT 142
144; HARRIS V. UNITED STATES, SUPRA, AT 23; ROVIARO V. UNITED STATES,
SUPRA, AT 62-63; TOT V. UNITED STATES, SUPRA, AT 472. 

THE COURT HAS ALSO REFUSED TO ACCEPT THE SUGGESTION THAT SINCE THE
SOURCE OF HIS DRUGS IS PERHAPS MORE WITHIN THE DEFENDANT'S KNOWLEDGE
THAN THE GOVERNMENT'S, IT VIOLATES NO RIGHTS OF THE DEFENDANT TO PERMIT
CONVICTION BASED ON POSSESSION ALONE WHEN THE DEFENDANT REFUSES TO
DEMONSTRATE A LEGAL SOURCE FOR HIS DRUGS.  LEARY V. UNITED STATES,
SUPRA, AT 32-34.  SEE ALSO TOT V. UNITED STATES, SUPRA, AT 469-470. 
THE DIFFICULTIES WITH THE SUGGESTED APPROACH ARE OBVIOUS:  IF THE
GOVERNMENT PROVES ONLY POSSESSION AND IF POSSESSION IS ITSELF
INSUFFICIENT EVIDENCE OF EITHER IMPORTATION OR KNOWLEDGE, BUT THE
STATUTE NEVERTHELESS PERMITS CONVICTION WHERE THE DEFENDANT CHOOSES NOT
TO EXPLAIN, THE GOVERNMENT IS CLEARLY RELIEVED OF ITS OBLIGATION TO
PROVE ITS CASE, UNAIDED BY THE DEFENDANT, AND THE DEFENDANT IS MADE TO
UNDERSTAND THAT IF HE FAILS TO EXPLAIN HE CAN BE CONVICTED ON LESS THAN
SUFFICIENT EVIDENCE TO CONSTITUTE A PRIMA FACIE CASE.  SEE TOT V.
UNITED STATES, SUPRA, AT 469. 

/9/  THE ORIGINAL PROVISION, APPLICABLE TO OPIUM AND DERIVATIVES,
WAS CONTAINED IN THE ACTOFFEBRUARY 9, 1909, SEC. 2, 35 STAT. 614.  IT
WAS REVISED AND EXTENDED TO COVER COCAINE AND COCA LEAVES BY THE ACT OF
MAY 26, 1922, SEC. 1, 42 STAT. 596.  THE PROVISION ESTABLISHING
THEPRESUMPTIONWAS ADOPTED WITHOUT EXTENDED DISCUSSION OR DEBATE; IT WAS
CONSCIOUSLY MODELED ON A PROVISION OF SEC. 3082 OF THE REVISED STATUTES
(NOW IN 18 U.S.C. 545), ORIGINATING IN THE SMUGGLING ACT OF 1866, SEC.
4, 14 STAT. 179.  SEE H.R. REP. NO. 1878, 60TH CONG.,2D SESS., 1-2
(1909); H.R. REP. NO. 2003, 60TH CONG.,2D SESS., 1 (1909).  SEE ALSO
SANDLER, THE STATUTORY PRESUMPTION IN FEDERAL NARCOTICS PROSECUTIONS,
57 J.CRIM.L.C.& P.S. 7 (1966). 

/10/ IN 1955 THE SUBCOMMITTEE ON IMPROVEMENTS IN THE FEDERAL
CRIMINAL CODE OF THE SENATE COMMITTEE ON THE JUDICIARY HELD HEARINGS
THROUGHOUT THE COUNTRY ON THE ILLICIT NARCOTICS TRAFFIC IN THIS
COUNTRY.  THE SUBCOMMITTEE HEARD 345 WITNESSES, INCLUDING GOVERNMENT
OFFICIALS, LAW ENFORCEMENT OFFICERS, AND ADDICTS AND NARCOTICS LAW
VIOLATORS; THE TESTIMONY HEARD COVERS SEVERAL THOUSAND PAGES.  HEARINGS
ON ILLICIT NARCOTICS TRAFFIC BEFORE THE SUBCOMMITTEE ON IMPROVEMENTS IN
THE FEDERAL CRIMINAL CODE OF THE SENATE COMMITTEE ON THE JUDICIARY,
84TH CONG.,1ST SESS. (1955) (HEREINAFTER CITED AS 1955 SENATE
HEARINGS).  THE EVIDENCE GATHERED IN THESE HEARINGS WAS THE BASIS OF S.
3760, 84TH CONG.,2D SESS. (1956).  THE SENATE BILL CONTAINED A SECTION
(PROPOSED SEC. 1402, TIT. 18) VERY SIMILAR TO SEC. 174 BUT APPLICABLE
EXCLUSIVELY TO HEROIN; THIS PROPOSED SECTION INCLUDED THE SEC. 174
PRESUMPTION.  ANOTHER PROPOSED SECTION (PROPOSED SEC. 1403, TIT. 18,
ENACTED WITH MINOR CHANGES AND NOW CODIFIED IN 21 U.S.C. 176B)
AUTHORIZED SPECIAL, SEVERE PENALTIES FOR THE SALE OF UNLAWFULLY
IMPORTED HEROIN TO JUVENILES; THIS SECTION CONTAINED A PROVISION THAT
POSSESSION OF HEROIN WAS SUFFICIENT TO PROVE THAT THE HEROIN HAD BEEN
ILLEGALLY IMPORTED.  SEE S. REP. NO. 1997, 84TH CONG.,2D SESS., 30
(1956) (PROPOSED SECS. 1402, 1403).  THE PRESUMPTION THAT HEROIN FOUND
IN THIS COUNTRY HAS BEEN ILLEGALLY IMPORTED WAS BASED ON FINDINGS OF
THE COMMITTEE THAT FOREIGN SOURCES SUPPLY ALL IMPORTANT QUANTITIES OF
HEROIN CIRCULATING IN THIS COUNTRY, ID., AT 3-7; AND THESE FINDINGS
WERE IN TURN BASED ON AMPLE EVIDENCE PRESENTED TO THE SUBCOMMITTEE ON
IMPROVEMENTS IN THE FEDERAL CRIMINAL CODE.  SEE 1955 SENATE HEARINGS 90
(TESTIMONY OF COMMISSIONER ANSLINGER OF THE FEDERAL BUREAU OF
NARCOTICS). 

/11/  PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND AD;MINISTRATION
OF JUSTICE, TASK FORCE REPORT:  NARCOTICS AND DRUG ABUSE 3 (1967)
(HEREINAFTER CITED AS TASK FORCE REPORT).  SEE ALSO U.N. COMMISSION ON
NARCOTIC DRUGS, REPORT OF THE EIGHTEENTH SESSION, U.N. DOC. E/CN.7/455,
P. 15 (1963); S. JEFFEE, NARCOTICS-- AN AMERICAN PLAN 12-14, 63-71
(1966). 

/12/  TITLE 21 U.S.C. 173 MAKES IT UNLAWFUL TO IMPORT ANY NARCOTIC
DRUG EXCEPT AMOUNTS OF CRUDE OPIUM AND COCA LEAVES NECESSARY TO PROVIDE
FOR MEDICAL AND LEGITIMATE USES.  IN ADDITION, FOR MORE THAN 45 YEARS,
IT HAS BEEN UNLAWFUL TO IMPORT OPIUM FOR THE PURPOSE OF MANUFACTURING
HEROIN.  ACT OF JUNE 7, 1924, 43 STAT. 657 (NOW CODIFIED IN 21 U.S.C.
173).  THOUGH 21 U.S.C. 513 PERMITS THE SECRETARY OF THE TREASURY TO
AUTHORIZE THE IMPORTATION OF ANY NARCOTIC DRUG FOR DELIVERY TO
GOVERNMENTAL OFFICIALS OR TO ANY PERSON LICENSED TO USE THE DRUGS FOR
SCIENTIFIC PURPOSES, THE SECRETARY HAS NEVER AUTHORIZED THE IMPORTATION
OF ANY HEROIN UNDER THIS PROVISION.  BRIEF FOR THE UNITED STATES 18 N.
12. 

/13/  THE NARCOTICS MANUFACTURING ACT OF 1960, 74 STAT. 55, 21
U.S.C. 501-517, PROHIBITS THE MANUFACTURE OF NARCOTIC DRUGS EXCEPT
UNDER A LICENSE ISSUED BY THE SECRETARY OF THE TREASURY FOR THE
PRODUCTION OF AN APPROVED DRUG.  SINCE HEROIN IS NOT CONSIDERED USEFUL
FOR MEDICAL PURPOSES, NO PRODUCTION FOR MEDICAL USE HAS BEEN
AUTHORIZED; HEROIN USED IN SCIENTIFIC EXPERIMENTATION IS SUPPLIED
ENTIRELY FROM QUANTITIES SEIZED BY LAW ENFORCEMENT OFFICIALS.  BRIEF
FOR THE UNITED STATES 17 N. 10. 

/14/  21 U.S.C. 173.  SEE S. REP. NO. 1997, 84TH CONG.,2D SESS., 7
(1956).  IN 1956 ALL HEROIN THEN LAWFULLY OUTSTANDING WAS REQUIRED TO
BE SURRENDERED.  ACT OF JULY 18, 1956, SEC. 201, 70 STAT. 572 (CODIFIED
AS 18 U.S.C. 1402). 

/15/  THE CLANDESTINE MANUFACTURE OF HEROIN FROM OPIUM OR MORPHINE
IS SAID IN ONE REPORT TO BE "CHILD'S PLAY."  VAILLE & BAILLEUL,
CLANDESTINE HEROIN LABORATORIES, 5 U.N.BULLETIN ON NARCOTICS, NO. 4,
OCT.-DEC.  1953, PP. 1, 6.  THE POSSIBILITY OF PRODUCING HEROIN FROM
CODEINE (WITH AYIELDOF ABOUT 22%) WAS FIRST REPORTED IN RAPOPORT,
LOVELL, & TOLBERT, THE PREPARATION OF MORPHINE-N-METHYL-C /14/  , 73
J.AM.CHEM.SOC.  5900 (1951), AND WAS VERIFIED IN GATES & TSCHUDI, THE
SYNTHESIS OF MORPHINE, 74 J.AM.CHEM.SOC.  1109 (1952).  THE BUREAU OF
NARCOTICS AND DANGEROUS DRUGS REPORTS THAT CONVERSION OF CODEINE INTO
MORPHINE (FROM WHICH HEROIN MAY BE PRODUCED) IS RELATIVELY SIMPLE AND
REQUIRES INEXPENSIVE EQUIPMENT BUT PRODUCES AN EXTREMELY NOXIOUS AND
PENETRATING ODOR WHICH WOULD MAKE CONCEALMENT OF SUCH CONVERSION
OPERATIONS VIRTUALLY IMPOSSIBLE.  SUPPELEMENTAL MEMORANDUM FOR THE
UNITED STATES 2. 

/16/  THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS REPORTS THAT IT
KNOWS OF NO CASE IN WHICH SYNTHETIC HEROIN HAS BEEN PRODUCED; IT
REPORTS THAT EXPERIMENTS INDICATE THAT PRODUCTION OF SYNTHETIC MORPHINE
WOULD BE EXTREMELY DIFFICULT.  BRIEF FOR THE UNITED STATES 20 N. 17. 
AMICUS BURGESS SUGGESTS THE POSSIBILITY OF SYNTHETIC PRODUCTION OF
HEROIN BUT CITES IN SUPPORT ONLY A CASE INVOLVING AN UNSUCCESSFUL
ATTEMPT TO SNYTHESIZE MORPHINE, UNITED STATES V. LISS, 137 F.2D 995
(C.A. 2D CIR.), CERT. DENIED, 320 U.S. 773 (1943).  BRIEF FOR CLEVELAND
BURGESS AS AMICUS CURIAE 11. 

/17/  OPIUM POPPY CONTROL ACT OF 1942, 56 STAT.;1045, 21 U.S.C. 118
188N. 

/18/  THE REGULATIONS PROVIDE THAT A LICENSE TO PRODUCE OPIUM
POPPIES SHALL BE ISSUED ONLY WHEN IT IS DETERMINED BY THE DIRECTOR OF
THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS THAT THE MEDICAL AND
SCIENTIFIC NEEDS OF THE COUNTRY CANNOT BE MET BY THE IMPORTATION OF
CRUDE OPIUM.  21 CFR 303.5(A).  IMPORTS OF CRUDE OPIUM HAVE BEEN
SUFFICIENT TO MEET ALL DOMESTIC MEDICAL AND SCIENTIFIC NEEDS AND THE
UNITED STATES IS THEREFORE NOT AN OPIUM-PRODUCING COUNTRY.  BLUM &
BRAUNSTEIN, MIND-ALTERING DRUGS AND DANGEROUS BEHAVIOR:  NARCOTICS,
IN.TASK FORCE REPORT APP. A-2, AT 40.  SEE ALSO BRIEF FOR THE UNITED
STATES 23 N. 25. 

/19/  THE MOST RECENT REPORTED CASE INVOLVING A PROSECUTION FOR
UNLAWFULL PRODUCTION OF OPIUM IS AZ DIN V. UNITED STATES, 232 F.2D 283
(C.A. 9TH CIR.), CERT. DENIED, 352 U.S. 827 (1956).  UNLIKE THE CASE OF
MARIHUANA, SEE LEARY, SUPRA, AT 42-43, THERE ARE NO REPORTS OF THE
DISCOVERY IN THIS COUNTRY OF FIELDS OF OPIUM POPPIES REQUIRING
DESTRUCTION.  THIS FACT TOGETHER WITH THE FACTS THAT OPIUM POPPIES ARE
HARD TO CONCEAL BECAUSE OF THEIR COLOR AND THAT THE HARVESTING OF OPIUM
IS ONLY ECONOMICALLY FEASIBLE IN COUNTRIES WITH AN ABUNDANT SUPPLY OF
CHEAP LABOR JUSTIFIES A CONCLUSION THAT LITTLE IF ANY OPIUM POPPY
PRODUCTION IS GOING ON IN THIS COUNTRY.  SEE BRIEF FOR THE UNITED
STATES 21-23. 

/20/  21 U.S.C. 173. 

/21/  IBID.  SEE SUPRA, N. 12. 

/22/  IN 1966, THE UNITED STATES IMPORTED 173,951 KILOGRAMS OF CRUDE
OPIUM; IN THE SAME YEAR, 715 KILOGRAMS OF MORPHINE AND 30,662 KILOGRAMS
OF CODEINE WERE PRODUCED FROM IMPORTED OPIUM.  U.S. TREASURY
DEPARTMENT, BUREAU OF NARCOTICS, TRAFFIC IN OPIUM AND OTHER DANGEROUS
DRUGS, REPORT FOR THE YEAR ENDED DECEMBER 31, 1967, P. 41 (1968). 

/23/  THE MANUFACTURE OF NARCOTIC DRUGS IS VERY CAREFULLY CONTROLLED
AND MONITORED UNDER THE NARCOTICS MANUFACTURING ACT OF 1960, 74 STAT.
55, 21 U.S.C. 501-517.  THE SUBSEQUENT DISTRIBUTION OF NARCOTIC DRUGS
IS CONTROLLED AND MONITORED UNDER THE LAWS ENFORCING THE TAXES IMPOSED
ON THOSE DEALING IN NARCOTIC DRUGS.  26 U.S.C. 4701-4707, 4721-4736,
4771-4776.     /24/  BECAUSE OF THE CONTROLS AND REPORTING REQUIREMENTS
APPLICABLE TO THOSE HANDLING NARCOTIC DRUGS, SEE SUPRA, N. 23, THE
BUREAU OF NARCOTICS AND DANGEROUS DRUGS CAN COMPILE ACCURATE FIGURES ON
THE QUANTITIES OF NARCOTIC DRUGS STOLEN FROM LEGITIMATE CHANNELS.  FROM
1964 THROUGH 1968, TOTAL THEFTS OF MEDICAL OPIUM PER YEAR RANGED FROM
9.6 KILOGRAMS TO 12.9 KILOGRAMS; THEFTS OF MORPHINE FOR THE SAME PERIOD
RANGED FROM 6.7 KILOGRAMS TO 10.2 KILOGRAMS PER YEAR; ANNUAL THEFTS OF
CODEINE FOR THE SAME YEARS RAN BETWEEN 30.0 KILOGRAMS AND 81.8
KILOGRAMS.  BRIEF FOR THE UNITED STATES 44.  ON THE POSSIBILITY OF
CLANDESTINE MANUFACTURE OF HEROIN FROM OPIUM, MORPHINE, AND CODEINE,
SEE SUPRA, N. 15. 

/25/  SEE SUPRA, N. 15. 

/26/  USING FIGURES ON THE NUMBER OF KNOWN ADDICTS AND THE AVERAGE
DAILY DOSE, FEDERAL AGENCIES ESTIMATE THAT ROUGHLY 1,500 KILOGRAMS OF
HEROIN ARE SMUGGLED INTO THE UNITED STATES EACH YEAR.  TASK FORCE
REPORT 6.  THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS ESTIMATES THAT
NO MORE THAN ABOUT ONE KILOGRAM OR HEROIN COULD HAVE BEEN PRODUCED IF
ALL THE OPIUM STOLEN IN ANY RECENT YEAR HAD BEEN CLANDESTINELY
CONVERTED INTO HEROIN.  THE LARGEST TOTAL AMOUNT OF MORPHINE STOLEN IN
A RECENT YEAR WOULD HAVE YIELDED ABOUT 10.2 KILOGRAMS OF HEROIN IF IT
HAD ALL BEEN CONVERTED INTO HEROIN.  BRIEF FOR THE UNITED STATES 19 N.
15. 

IF IT WERE ASSUMED THAT ALL STOLEN CODEINE IS CONVERTED INTO HEROIN,
THE FIGURE FOR THE POSSIBLE CLANDESTINE DOMESTIC PRODUCTION OF HEROIN
WOULDBEWELL OVER 1% OF THE TOTAL HEROIN MARKETED IN THIS COUNTRY. 
CODEINE CAN BE MADE TO YIELD ABOUT 22% HEROIN.  SEE SUPRA, N. 15. 
APPLYING THIS CONVERSION RATE TO THE LARGEST ANNUAL AMOUNT OF CODEINE
STOLEN IN THE LAST FIVE YEARS (81.8 KILOGRAMS, SEE SUPRA, N. 24) WOULD
GIVE A FIGURE OF ABOUT 18 KILOGRAMS FOR THE MAXIMUM AMOUNT OF HEROIN
THAT MIGHT HAVE BEEN PRODUCED FROM STOLEN CODEINE IN ANY RECENT YEAR. 
ON THE ASSUMPTION THAT ALL STOLEN OPIUM, MORPHINE, AND CODEINE IS
CONVERTED INTO HEROIN, THE AMOUNT OF HEROIN DOMESTICALLY PRODUCED FROM
STOLEN OPIUM AND ITS DERIVATIVES WOULD AMOUNT TO NO MORE THAN ABOUT 30
KILOGRAMS, ONLY ABOUT 2% OF THE 1,500 KILOGRAMS OF HEROIN ESTIMATED TO
BE ILLEGALLY IMPORTED EACH YEAR.  WHETHER SUCH A PERCENTAGE, RATHER
THAN THE FIGURE OF LESS THAN 1% OBTAINED BY EXCLUDING CODEINE FROM
CONSIDERATION, WOULD ALTER OUR CONCLUSIONS NEED NOT BE DISCUSSED, FOR
THE FACT THAT THE CONVERSATION PROCESS CREATES A STENCH MAKES IT
UNREALISTIC TO ASSUME THAT STOLEN CODEINE IS CLANDESTINELY CONVERTED
INTO HEROIN.  SEE SUPRA, N. 15. 

/27/  STATEMENT BY THE UNITED STATES DELEGATION ON THE ILLICIT
TRAFFIC TO THE TWENTY-THIRD SESSION OF THE U.N. COMMISSION ON NARCOTIC
DRUGS, JANUARY 1969, U.N. DOC. SD/D/CN.7/131, ANNEX A, P. 3.  ONE
RESPECTED WORK ON NARCOTICS MAKES THE CLAIM, WITHOUT FURTHER
ELABORATION, THAT "RECENT INFORMATION" LEADS TO THE CONCLUSION THAT
SOME ILLICIT LABORATORIES USED FOR THE CONVERSION OF OPIUM OR MORPHINE
INTO HEROIN ARE LOCATED IN THE UNITED STATES.  D. MAURER & V. VOGEL,
NARCOTICS AND NARCOTIC ADDICTION 64 (3D ED. 1967).  HOWEVER, THE SAME
STATEMENT, WITHOUT ELABORATION, APPEARS IN THE 1954 EDITION OF THE
WORK, D. MAURER & V. VOGEL, NARCOTICS AND NARCOTICS ADDICTION 50, AND
THIS FACT TOGETHER WITH THE ABSENCE OF ANY CITED BASIS FOR THE CLAIM
AND THE LACK OF SUPPORTING EVIDENCE ELSEWHERE IN THE LITERATURE LEADS
US TO BELIEVE THAT THE STATEMENT, IF IT WAS EVER CORRECT, IS NO LONGER
ACCURATE. 

/28/  IT IS, OF COURSE, POSSIBLE FOR THE SITUATION TO CHANGE EITHER
THROUGH THE DEVELOPMENT OF A SIMPLE METHOD OF SYNTHESIZING HEROIN OR
THROUGH THE CREATION OF SUBSTANTIAL CLANDESTINE OPERATIONS UTILIZING
OPIUM OR MORPHINE WHICH HAS BEEN ILLEGALLY IMPORTED OR WHICH, THOUGH
LEGALLY HERE, HAS BEEN STOLEN. 

/29/  THE COURT IN LEARY, 395 U.S.,AT 46 N. 93, EMPLOYED THE
DEFINITION OF "KNOWLEDGE" IN MODEL PENAL CODE SEC. 2.02(7) (PROPOSED
OFFICIAL DRAFT, 1962): 

"WHEN KNOWLEDGE OF THE EXISTENCE OF A PARTICULAR FACT IS AN ELEMENT
OF AN OFFENSE, SUCH KNOWLEDGE IS ESTABLISHED IF A PERSON IS AWARE OF A
HIGH PROBABILITY OF ITS EXISTENCE, UNLESS HE ACTUALLY BELIEVES THAT IT
DOES NOT EXIST." 

/30/  THOUGH THE FEDERAL NARCOTICS LAWS ARE IN TERMS APPLICABLE TO
MOST POSSESSORS OF ILLICIT DRUGS REGARDLESS OF WHETHER THE POSSESSOR IS
A USER OR A DEALER, THE ENFORCEMENT EFFORTS OF THE BUREAU OF NARCOTICS
AND DANGEROUS DRUGS ARE DIRECTED TO THE DEVELOPMENT OF EVIDENCE AGAINST
"MAJOR SOURCES OF SUPPLY WHOLESALE PEDDLERS, INTERSTATE AND
INTERNATIONAL VIOLATORS."  HEARINGS ON THE NARCOTIC REHABILITATION ACT
OF 1966 BEFORE A SPECIAL SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY 89TH CONG., 2D SESS., 448 (1966) (HEREINAFTER CITED AS 1966
SENATE HEARINGS) (TESTIMONY OF COMMISSIONER GIORDANO OF THE FEDERAL
BUREAU OF NARCOTICS).  THE UNDISPUTED EVIDENCE THAT TURNER POSSESSED
275 GLASSINE BAGS OF HEROIN CLEARLY SHOWS THAT TURNER WAS MORE THAN A
MERE USER OF HEROIN AND WAS ENGAGED IN THE DISTRIBUTION OF THE DRUG. 

/31/  SEE TASK FORCE REPORT 3.  SEE ALSO 1955 SENATE HEARINGS 3889,
4219. 

/32/  FOR EXAMPLE, A SEIZURE OF A LARGE AMOUNT OF PURE HEROIN IN
MONTREAL, CANADA, CAUSED A "PANIC" IN NEW YORK CITY THAT LASTED ALMOST
THREE MONTHS.  1966 SENATE HEARINGS 87. 

/33/  SUCH A CONCLUSION IS ALSO JUSTIFIED WITH REGARD TO THOSE USERS
AND ADDICTS WHO FREQUENTLY PURCHASE SUPPLIES OF HEROIN ON THE RETAIL
MARKET.  SUCH PERSONS ARE OF COURSE AWARE OF THE VARIATIONS IN PRICE
AND AVAILABILITY OF THE DRUG AND OF THE FACT THAT THE SUCCESS OF ANTI
SMUGGLING EFFORTS OF LAW ENFORCEMENT OFFICIALS AFFECTS THE SUPPLY OF
HEROIN ON THE MARKET.  SEE SUPRA, THIS PAGE AND NN. 31, 32. 

/34/  SEE GRIEGO V. UNITED STATES, 298 F.2D 845, 849 (C.A. 10TH CIR.
1962). 

/35/  THE SAME SITUATION MIGHT PRESENT ITSELF IF THERE WERE NO
STATUTORY PRESUMPTION AND A PRIMA FACIE CASE OF CONCEALMENT WITH
KNOWLEDGE OF UNLAWFUL IMPORTATION WERE MADE BY THE EVIDENCE.  THE
NECESSITY OF AN EXPLANATION BY THE ACCUSED WOULD BE QUITE AS COMPELLING
IN THAT CASE AS IN THIS; BUT THE CONSTRAINT UPON HIM TO GIVE TESTIMONY
WOULD ARISE THERE, AS IT ARISES HERE, SIMPLY FROM THE FORCE OF
CIRCUMSTANCES AND NOT FROM ANY FORM OF COMPULSION FORBIDDEN BY THE
CONSTITUTION."  YEE HEM V. UNITED STATES, 268 U.S. 178, 185 (1925). 

/36/  IN 1966, 609 KILOGRAMS OF COCAINE WERE PRODUCED.  U.S.
TREASURY DEPARTMENT, BUREAU OF NARCOTICS, TRAFFIC IN OPIUM AND OTHER
DANGEROUS DRUGS, REPORT FOR THE YEAR ENDED DECEMBER 31, 1967, P. 42
(1968).  ANNUAL SEIZURES OF COCAINE AT PORTS AND BORDERS FOR THE YEARS
1963 THROUGH 1967 RANGED FROM 1.44 KILOGRAMS TO 17.71 KILOGRAMS; THE
BUREAU OF NARCOTICS AND DANGEROUS DRUGS ESTIMATES THAT NO MORE THAN
ABOUT 10% OF COCAINE THAT IS ATTEMPTED TO BE SMUGGLED INTO THE UNITED
STATES IS DISCOVERED AND SEIZED AT PORTS AND BORDERS.  BRIEF FOR THE
UNITED STATES 31 N. 31. 

/37/  FROM 1963 THROUGH 1968, THE AMOUNT OF COCAINE STOLEN FROM
LEGAL CHANNELS ANNUALLY RANGED FROM 2.8 KILOGRAMS TO 6.2 KILOGRAMS. 
BRIEF FOR THE UNITED STATES 44. 

/38/  BRIEF FOR THE UNITED STATES 28-32. 

/39/  SINCE THE ILLEGAL POSSESSOR'S ONLY SOURCE OF DOMESTIC COCAINE
IS THAT WHICH IS STOLEN, THE UNITED STATES URGES THAT THE SEC. 174
PRESUMPTION MAY BE VALID WITH RESPECT TO SELLERS FOUND WITH MUCH LARGER
AMOUNTS OF COCAINE THAN TURNER HAD, AMOUNTS WHICH, IT IS CLAIMED, ARE
TOO LARGE TO HAVE BEEN REMOVED FROM LEGAL CHANNELS AND WHICH MUST
THEREFORE HAVE BEEN SMUGGLED.  BRIEF FOR THE UNITED STATES 31.  WE FIND
IT NECESSARY TO DEAL WITH THESE PROBLEMS AND POSTPONE THEIR
CONSIDERATION TO ANOTHER DAY, HOPEFULLY UNTIL AFTER THE FACTS HAVE BEEN
PRESENTED IN AN ADVERSARY CONTEXT IN THE DISTRICT COURTS. 

/40/  SEE SUPRA, N. 2. 

/41/  THE INDICTMENT CHARGED TURNER WITH POSSESSING HEROIN AS WELL
AS PURCHASING, DISPENSING, AND DISTRIBUTING THE DRUG.  THE INSTRUCTIONS
TO THE JURY MADE THE SAME ERROR.  NO OBJECTION WAS MADE IN THE TRIAL
COURT AND THE ISSUE WAS NOT RAISED IN THE COURT OF APPEALS OR IN THIS
COURT.  THEERRORWAS HARMLESS IN ANY EVENT SINCE THE POSSESSION EVIDENCE
PROVED THAT TURNER WAS DISTRIBUTING HEROIN.  SEE INFRA, THIS PAGE. 

/42/  CRAIN V. UNITED STATES, 162 U.S. 625, 634-636 (1896); SMITH V.
UNITED STATES, 234 F.2D 385, 389-390 (C.A. 5TH CIR. 1956); PRICE V.
UNITED STATES, 150 F.2D 283 (C.A. 5TH CIR. 1945), CERT. DENIED, 326
U.S. 789 (1946).  SEE ALSO CLAASSEN V. UNITED STATES, 142 U.S. 140
(1891); THE CONFISCATION CASES, 20 WALL.  92, 104 (1874). 

/43/  26 U.S.C. 4721, 4722.  SEE ALSO 26 U.S.C. 4702(A)(2)(C). 

/44/  26 CFR 151.130, 151.41. 

/45/  HEROIN IS REPORTED TO SELL FOR AROUND $5 PER "BAG" OR PACKET. 
TASK FORCE REPORT 3. 

/46/  BRIEF FOR THE UNITED STATES 33. 

/47/  SEE SUPRA, N. 36. 

MR. JUSTICE MARSHALL, CONCURRING IN THE JUDGMENT. 

I CONCUR IN THE JUDGMENT OF THE COURT, AFFIRMING PETITIONER'S
CONVICTION ON COUNTS 1 AND 2 AND REVERSING HIS CONVICTION ON COUNTS 3
AND 4.  IN SO DOING, HOWEVER, I CAN AGREE WITH THE MAJORITY ON COUNT 2
ONLY INSOFAR AS IT CONCLUDES THAT EVIDENCE OFPOSSESSIONOF 275 GLASSINE
BAGS OF HEROIN PROVED BEYOND A REASONABLE DOUBT THAT TURNER WAS
DISTRIBUTING HEROIN IN VIOLATION OF 26 U.S.C. 4704(A).  THAT SAME
EVIDENCE DOES NOT ESTABLISH THAT HE HAD PURCHASED THE HEROIN IN
VIOLATION OF THAT STATUTE. 

THE OPINION OF THE COURT ESTABLISHES CONVINCINGLY THE VIRTUAL
CERTAINTY THAT THE HEROIN IN TURNER'S POSSESSION HAD BEEN ILLEGALLY
IMPORTED INTO THE COUNTRY.  IT WAS THUS PROPER WITH REGARD TO COUNT 1
FOR THE TRIAL JUDGE TO INSTRUCT THE JURORS IN EFFECT THAT IF THEY FOUND
THAT TURNER DID INDEED POSSESS THE DRUG, THEY COULD INFER THAT THE
HEROIN HAD BEEN ILLEGALLY IMPORTED AND IMPUTE KNOWLEDGE OF THAT FACT TO
TURNER.  HOWEVER, THE INSTRUCTION THAT POSSESSION IS PRIMA FACIE
EVIDENCE OF A VIOLATION OF SEC. 4704(A) IS QUITE DIFFERENT.  IT MAY BE
TRUE THAT MOST PERSONS WHO POSSESS HEROIN HAVE PURCHASED IT NOT IN OR
FROM A STAMPED PACKAGE.  HOWEVER, TURNER HIMSELF MAY WELL HAVE OBTAINED
THE HEROIN INVOLVED HERE IN ANY OF A NUMBER OF WAYS-- FOR EXAMPLE, BY
STEALING IT FROM ANOTHER DISTRIBUTOR, OR BY MANUFACTURING OR OTHERWISE
ACQUIRING IT ABROAD AND SMUGGLING IT INTO THIS COUNTRY.  GIVEN THE
DANGERS THAT ARE INHERENT IN ANY STATUTORY PRESUMPTION OR INFERENCE,
SOME OF WHICH ARE SET OUT IN THE DISSENTING OPINION OF MR. JUSTICE
BLACK, I CANNOT AGREE WITH THE WHOLLY SPECULATIVE AND CONJECTURAL
HOLDING THAT BECAUSE TURNER POSSESSED HEROIN HE MUST HAVE PURCHASED IT
IN VIOLATION OF SEC. 4704(A). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

FEW IF ANY DECISIONS OF THIS COURT HAVE DONE MORE THAN THIS ONE
TODAY TO UNDERCUT AND DESTROY THE DUE PROCESS SAFEGUARDS THE FEDERAL
BILL OF RIGHTS SPECIFICALLY PROVIDES TO PROTECT DEFENDANTS CHARGED WITH
CRIME IN UNITED STATES COURTS.  AMONG THE ACCUSED'S BILL OF RIGHTS'
GUARANTEES THAT THE COURT TODAY WEAKENS ARE: 

1.  HIS RIGHT NOT TO BE COMPELLED TO ANSWER FOR A CAPITAL OR
OTHERWISE INFAMOUS CRIME UNLESS ON A PRESENTMENT OR INDICTMENT OF A
GRAND JURY; 

2.  THE RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM; 

3.  THE RIGHT NOT TO BE COMPELLED TO BE A WITNESS AGAINST HIMSELF; 

4.  THE RIGHT NOT TO BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY
WITHOUT DUE PROCESS OF LAW; 

5.  THE RIGHT TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM; 

6.  THE RIGHT TO COMPULSORY PROCESS FOR OBTAINING WITNESSES FOR HIS
DEFENSE; 

7.  THE RIGHT TO COUNSEL; AND 

8.  THE RIGHT TO TRIAL BY AN IMPARTIAL JURY. 

THE FOREGOING RIGHTS ARE AMONG THOSE THAT THE BILL OF RIGHTS
SPECIFICALLY SPELLS OUT AND THAT DUE PROCESS REQUIRES THAT A DEFENDANT
CHARGED WITH CRIME MUST BE ACCORDED.  THE FRAMERS OF OUR CONSTITUTION
AND BILL OF RIGHTS WERE TOO WISE, TOO PRAGMATIC, AND TOO FAMILIAR WITH
TYRANNY TO ATTEMPT TO SAFE GUARD PERSONAL LIBERTY WITH BROAD, FLEXIBLE
WORDS AND PHRASES LIKE "FAIR TRIAL," "FUNDAMENTAL DECENCY," AND
"REASONABLENESS."  SUCH STRETCHY, RUBBERLIKE TERMS WOULD HAVE LEFT
JUDGES CONSTITUTIONALLY FREE TO TRY PEOPLE CHARGED WITH CRIME UNDER
WILL-O'-WISP STANDARDS IMPROVISED BY DIFFERENT JUDGES FOR DIFFERENT
DEFENDANTS.  NEITHER THE DUE PROCESS CLAUSE NOR ANY OTHER
CONSTITUTIONAL LANGUAGE VESTS ANY JUDGE WITH SUCH POWER.  OUR
CONSTITUTION WAS NOT WRITTEN IN THE SANDS TO BE WASHED AWAY BY EACH
WAVE OF NEW JUDGES BLOWN IN BY EACH SUCCESSIVE POLITICAL WIND THAT
BRINGS NEW POLITICAL ADMINISTRATIONS INTO TEMPORARY POWER.  RATHER, OUR
CONSTITUTION WAS FASHIONED TO PERPETUATE LIBERTY AND JUSTICE BY MARKING
CLEAR, EXPLICIT, AND LISTING CONSTITUTIONAL BOUNDARIES FOR TRIALS.  ONE
NEED LOOK NO FURTHER THAN THE LANGUAGE OF THAT SACRED DOCUMENT ITSELF
TO BE ASSURED THAT DEFENDANTS CHARGED WITH CRIME ARE TO BE ACCORDED DUE
PROCESS OF LAW-- THAT IS, THEY ARE TO BE TRIED AS THE CONSTITUTION AND
THE LAWS PASSED PURSUANT TO IT PRESCRIBE AND NOT UNDER ARBITRARY
PROCEDURES THAT A PARTICULAR MAJORITY OF SITTING JUDGES MAY SEE FIT TO
LABEL AS "FAIR" OR "DECENT."  I WHOLLY, COMPLETELY, AND PERMANENTLY
REJECT THE SO-CALLED, "ACTIVIST" PHILOSOPHY OF SOME JUDGES WHICH LEADS
THEM TO CONSTRUE OUR CONSTITUTION AS MEANING WHAT THEY NOW THINK IT
SHOULD MEAN IN THE INTEREST OF "FAIRNESS AND DECENCY" AS THEY SEE IT.
THIS CASE AND THE COURT'S HOLDING IN IT ILLUSTRATE THE DANGERS INHERENT
IN SUCH AN "ACTIVIST" PHILOSOPHY. 

COMMERCIAL TRAFFIC IS DEADLY MIND-, SOUL-, AND BODY-DESTROYING DRUGS
IS BEYOND DOUBT ONE OF THE GREATEST EVILS OF OUR TIME.  IT CRIPPLES
INTELLECTS, DWARFS BODIES, PARALYZES THE PROGRESS OF A SUBSTANTIAL
SEGMENT OF OUR SOCIETY, AND FREQUENTLY MAKES HOPELESS AND SOMETIMES
VIOLENT AND MURDEROUS CRIMINALS OF PERSONS OF ALL AGES WHO BECOME ITS
VICTIMS.  SUCH CONSEQUENCES CALL FOR THE MOST VIGOROUS LAWS TO SUPPRESS
THE TRAFFIC AS WELL AS THE MOST POWERFUL EFFORTS TO PUT THESE VIGOROUS
LAWS INTO EFFECT.  UNFORTUNATELY, GRAVE EVILS SUCH AS THE NARCOTICS
TRAFFIC CAN TOO EASILY CAUSE THREATS TO OUR BASIC LIBERTIES BY MAKING
ATTRACTIVE THE ADOPTION OF CONSTITUTIONALLY FORBIDDEN SHORTCUTS THAT
MIGHT SUPPRESS AND BLOT OUT MORE QUICKLY THE UNPOPULAR AND DANGEROUS
CONDUCT.  THAT IS EXACTLY THE COURSE I THINK THE COURT IS SANCTIONING
TODAY.  I SHALL NOW SET OUT IN MORE DETAIL WHY I BELIEVE THIS TO BE
TRUE.     COUNT 1 OF THE INDICTMENT AGAINST TURNER, AS THE COURT'S
OPINION ASSERTS, AND AS I AGREE, 

"CHARGED TURNER WITH (1) KNOWINGLY RECEIVING, CONCEALING, AND
TRANSPORTING HEROIN WHICH (2) WAS ILLEGALLY IMPORTED AND WHICH (3) HE
KNEW WAS ILLEGALLY IMPORTED.  . . . FOR CONVICTION, IT WAS NECESSARY
FOR THE GOVERNMENT TO PROVE EACH OFTHESETHREE ELEMENTS OF THE CRIME TO
THE SATISFACTION OF THE JURY BEYOND A REASONABLE DOUBT."  ANTE, AT
405. 

THE COURT IN THE ABOVE STATEMENT IS MERELY REAFFIRMING THE
FUNDAMENTAL CONSTITUTIONAL PRINCIPLE THAT THE ACCUSED IS PRESUMED
INNOCENT UNTIL HE IS PROVED GUILTY AND THAT THE GOVERNMENT, BEFORE IT
CAN SECURE A CONVICTION, MUST DEMONSTRATE TO THE JURY BEYOND A
REASONABLE DOUBT EACH ESSENTIAL ELEMENT OF THE ALLEGED OFFENSE.  THIS
BASIC PRINCIPLE IS CLEARLY REFLECTED IN SEVERAL PROVISIONS OF THE BILL
OF RIGHTS.  THE FIFTH AND SIXTH AMENDMENTS PROVIDE THAT AS A PART OF
DUE PROCESS OF LAW A PERSON HELD FOR CRIMINAL PROSECUTION SHALL BE
CHARGED ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY AND THAT THE
DEFENDANT SHALL "BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION."  THE PURPOSE OF THESE REQUIREMENTS IS OBVIOUSLY TO COMPEL
THE GOVERNMENT TO STATE AND DEFINE SPECIFICALLY WHAT IT MUST PROVE IN
ORDER TO CONVICT THE DEFENDANT SO THAT HE CAN INTELLIGENTLY PREPARE TO
DEFEND HIMSELF ON EACH OF THE ESSENTIAL ELEMENTS OF THE CHARGE.  AND TO
AID THE ACCUSED IN MAKING HIS DEFENSE TO THE CHARGES THUS DEFINED, THE
BILL OF RIGHTS PROVIDES THE ACCUSED EXPLICIT GUARANTEES-- THE PRIVILEGE
AGAINST SELF-INCRIMINATION, THE RIGHT TO COUNSEL, THE RIGHT TO CONFRONT
WITNESSES AGAINST HIM, AND TO CALL WITNESSES IN HIS OWN BEHALF-- ALL
DESIGNED TO ASSURE THAT THE JURY WILL AS NEARLY AS HUMANLY POSSIBLE BE
ABLE TO CONSIDER FULLY ALL THE EVIDENCE AND DETERMINE THE TRUTH OF
EVERY CASE. 

HAVING INVOKED THE ABOVE PRINCIPLES, HOWEVER, THE COURT THEN
PROCEEDS TO UPHOLD TURNER'S CONVICTION UNDER COUNT 1 DESPITE THE FACT
THAT THE PROSECUTION INTRODUCED ABSOLUTELY NO EVIDENCE AT TRIAL ON TWO
OF THETHREE ESSENTIAL ELEMENTS OF THE CRIME.  TO SHOW THIS I THINK ONE
NEED LOOK NO FURTHER THAN THE COURT'S OWN OPINION.  THE COURT SAYS: 

     "THE PROOF WAS THAT TURNER HAD KNOWINGLY POSSESSED HEROIN;

  SINCE IT IS ILLEGAL TO IMPORT HEROIN OR TO MANUFACTURE IT HERE,

  HE WAS ALSO CHARGEABLE WITH KNOWING THAT HIS HEROIN HAD AN

  ILLEGAL SOURCE.  FOR ALL PRACTICAL PURPOSES, THIS WAS THE

  GOVERNMENT'S CASE."  ANTE, AT 405. 

     "WHATEVER COURSE THE JURY TOOK, IT FOUND TURNER GUILTY BEYOND
A

  REASONABLE DOUBT AND THE QUESTION ON REVIEW IS THE SUFFICIENCY OF

  THE EVIDENCE, OR MORE PRECISE, THE SOUNDNESS OF INFERRING GUILT

  FROM PROOF OF POSSESSION ALONE."  ANTE, AT 407. 

THE PASSAGES SHOW THAT THE GOVERNMENT WHOLLY FAILED TO MEET ITS
BURDEN ON PROOF AT TRIAL ON TWO OF THE ELEMENTS CONGRESS DEEMED
ESSENTIAL TO THE CRIME IT DEFINED.  THE PROSECUTION INTRODUCED NO
EVIDENCE TO PROVE EITHER (1) THAT THE HEROIN INVOLVED WAS ILLEGALLY
IMPORTED OR (2) THAT TURNER KNEW THE HEROIN WAS ILLEGALLY IMPORTED. 
THE EVIDENCE SHOWED ONLY THAT TURNER WAS FOUND IN POSSESSION OF
HEROIN. 

I DO NOT THINK A REVIEWING COURT SHOULD PERMIT TO STAND A CONVICTION
AS WHOLLY LACKING IN EVIDENTIARY SUPPORT AS IS TURNER'S CONVICTION
UNDER COUNT 1.  BOZZA V. UNITED STATES, 330 U.S. 160 (1947).  SEE ALSO
THOMPSON V. LOUISVILLE, 362 U.S. 199 (1960).  WHEN THE EVIDENCE OF A
CRIME ISINSUFFICIENTAS A MATTER OF LAW, AS THE EVIDENCE HERE PLAINLY
IS, A REVERSAL OF THE CONVICTION IS IN ACCORD WITH THE HISTORIC
PRINCIPLE THAT "INDEPENDENT TRIAL JUDGES AND INDEPENDENT APPELLATE
JUDGES HAVE A MOST IMPORTANT PLACE UNDER OUR CONSTITUTIONAL PLAN SINCE
THEY HAVE POWER TO SET ASIDE CONVICTIONS."  UNITED STATES EX REL. TOTH
V. QUARLES, 350 U.S. 11, 19 (1955).  I WOULD THEREFORE REVERSE TURNER'S
CONVICTION UNDER COUNT 1 WITHOUT FURTHER ADO.  MOREOVER, AS THE
MAJORITY OPINION AND THE RECORD IN THIS CASE INDICATE, PETITIONER'S
CONVICTIONS UNDER COUNTS 3 AND 4 ARE ALSO BASED UPON TOTALLY
INSUFFICIENT EVIDENCE, FOR AS IN COUNT 1 THE PROSECUTION FAILED TO
INTRODUCE ANY EVIDENCE TO SUPPORT CERTAIN ESSENTIAL ELEMENTS OF THE
CRIMES CHARGED UNDER THESE COUNTS.  THEY, TOO, SHOULD BE REVERSED FOR
LACK OF EVIDENCE. 

THE COURT ATTEMPTS TO TAKE THE STARK NAKEDNESS OF THE EVIDENCE
AGAINST TURNER ON THESE COUNTS AND CLOTHE IT IN "PRESUMPTION" OR
"INFERENCES" AUTHORIZED BY 21 U.S.C. 174 AND 26 U.S.C. 4704(A). 
APPARENTLY THE COURT FEELS THAT THE GOVERNMENT CAN BE RELIEVED OF THE
CONSTITUTIONAL BURDEN OF PROVING THE ESSENTIAL ELEMENTS OF ITS CASE BY
A MERE CONGRESSIONAL DECLARATION THAT CERTAIN EVIDENCE SHALL BE DEEMED
SUFFICIENT TO CONVICT.  SUCH AN IDEA SEEMS TO ME TO BE TOTALLY AT
VARIANCE WITH WHAT THE CONSTITUTION REQUIRES.  CONGRESS CAN UNDOUBTEDLY
CREATE CRIMES AND DEFINE THEIR ELEMENTS, BUT IT CANNOT UNDER OUR
CONSTITUTION EVEN PARTIALLY REMOVE FROM THE PROSECUTION THE BURDEN OF
PROVING AT TRIAL EACH OF THE ELEMENTS IT HAS DEFINED.  THE FUNDAMENTAL
RIGHT OF THE DEFENDANT TO BE PRESUMED INNOCENT IS SWEPT AWAY TO
PRECISELY THE EXTENT JUDGES AND JURIES RELY UPON THE STATUTORY
PRESUMPTIONS OF GUILT FOUND IN 21 U.S.C. 174 AND 26 U.S.C. 4704(A). 
AND EACH OF THE WEAPONS GIVEN BY THE BILL OF RIGHTS TO THE CRIMINAL
ACCUSED TO DEFEND HIS INNOCENCE-- THE RIGHT TO COUNSEL, THE RIGHT TO
CONFRONT THE WITNESSES AGAINST HIM AND TO SUBPOENA WITNESSES IN HIS
FAVOR, THE PRIVILEGE AGAINST SELF-INCRIMINATION-- IS NULLIFIED TO THE
EXTENT THAT THE GOVERNMENT TO SECURE A CONVICTION DOES NOT HAVE TO
INTRODUCE ANY EVIDENCE TO SUPPORT ESSENTIAL ALLEGATIONS OF THE
INDICTMENT IT HAS BROUGHT.  IT WOULD BE A SENSELESS AND STUPID THING
FOR THE CONSTITUTION TO TAKE ALL THESE PRECAUTIONS TO PROTECT THE
ACCUSED FROM GOVERNMENTAL ABUSES IF THE GOVERNMENT COULD BY SOME
SLEIGHT-OF-HAND TRICK WITH PRESUMPTIONS MAKE NULLITIES OF THOSE
PRECAUTIONS.  SUCH A RESULT WOULD COMPLETELY FRUSTRATE THE PURPOSE OF
THE FOUNDERS TO ESTABLISH A SYSTEM OF CRIMINAL JUSTICE IN WHICH THE
ACCUSED-- EVEN THE POOREST AND MOST HUMBLE-- WOULD BE ABLE TO PROTECT
HIMSELF FROM WRONGFUL CHARGES BY A BIG AND POWERFUL GOVERNMENT.  IT IS
LITTLE LESS THEN FANTASTIC EVEN TO IMAGINE THAT THOSE WHO WROTE OUR
CONSTITUTION AND THE BILL OF RIGHTS INTENDED TO HAVE A GOVERNMENT THAT
COULD CREATE CRIMES OF SEVERAL SEPARATE AND INDEPENDENT PARTS AND THEN
RELIEVE THE GOVERNMENT OF PROVING A PORTION OF THEM.  OF COURSE, WITHIN
CERTAIN BROAD LIMITS IT IS NOT NECESSARY FOR CONGRESS TO DEFINE A CRIME
TO INCLUDE ANY PARTICULAR SET OF ELEMENTS.  BUT IF IT DOES,
CONSTITUTIONAL DUE PROCESS REQUIRES THE GOVERNMENT TO PROVE EACH
ELEMENT BEYOND A REASONABLE DOUBT BEFORE IT CAN CONVICT THE ACCUSED OF
THE CRIME IT DELIBERATELY AND CLEARLY DEFINED.  TURNER'S TRIAL
THEREFORE REMINDS ME MORE OF DANIEL BEING CAST INTO THE LION'S DEN THAN
IT DOES OF A CONSTITUTIONAL PROCEEDING.  THE BIBLE TELLS US DANIEL WAS
SAVED BY A MIRACLE, BUT WHEN THIS COURT SAYS ITS FINAL WORD IN THIS
CASE TODAY, WE CANNOT EXPECT A MIRACLE TO SAVE PETITIONER TURNER. 

I WOULD HAVE MORE HESITATION IN SETTING ASIDE THESE JURY VERDICTS
FOR INSUFFICIENCY OF THE EVIDENCE WERE I CONFIDENT THAT THE JURY HAD
BEEN ALLOWED TO MAKE A FREE AND UNHAMPERED DETERMINATION OF GUILT OR
INNOCENCE AS THE JURY TRIAL PROVISIONS OF ARTICLE III OF THE
CONSTITUTION AND THE SIXTH AMENDMENT REQUIRE.  THE RIGHT TO TRIAL BY
JURY INCLUDES THE RIGHT TO HAVE THE JURY AND THE JURY ALONE FIND THE
FACTS OF THE CASE, INCLUDING THE CRUCIAL FACT OF GUILT OR INNOCENCE. 
SEE, E.G., UNITED STATES, EX REL. TOTH V. QUARLES, 350 U.S. 11, 15-19
(1955).  THIS RIGHT TO HAVE THE JURY DETERMINE GUILT OR INNOCENCE
NECESSARILY INCLUDES THE RIGHT TO HAVE THAT BODY DECIDE WHETHER THE
EVIDENCE PRESENTED AT TRIAL IS SUFFICIENT TO CONVICT.  TURNER'S
CONVICTIONS ON EACH COUNT WERE SECURED ONLY AFTER THE JURY HAD BEEN
EXPLICITLY INSTRUCTED BY THE TRIAL JUDGE THAT PROOF OF TURNER'S MERE
POSSESSION OF HEROIN AND COCAINE "SHALL BE DEEMED SUFFICIENT EVIDENCE
TO AUTHORIZE CONVICTION" UNDER 21 U.S.C. 174, AND "SHALL BE PRIMA FACIE
EVIDENCE OF A VIOLATION" OF 26 U.S.C. 4704(A).  APP. 15-18.  IN MY
VIEW, THESE INSTRUCTIONS TO THE JURY IMPERMISSIBLY INTERFERED WITH THE
DEFENDANT'S SIXTH AMENDMENT RIGHT TO HAVE THE JURY DETERMINATION WHEN
EVIDENCE IS SUFFICIENT TO JUSTIFY A FINDING OF GUILT BEYOND A
REASONABLE DOUBT. 

THE INSTRUCTIONS DIRECTING THE JURY TO PRESUME GUILT IN THIS CASE
WERE NOT, OF COURSE, THE TRIAL JUDGE'S OWN INSPIRATION.  CONGRESS, IN
ENACTING THE STATUTORY PRESUMPTIONS PURPORTING TO DEFINE AND LIMIT THE
QUANTUM VIEWS AND CONTROLS INTO THE GUILT-DETERMINING, FACT-FINDING
PROCESS VESTED BY OUR CONSTITUTION EXCLUSIVELY IN THE JUDICIAL BRANCH
OF OUR GOVERNMENT.  THE FIFTH AMENDMENT'S COMMAND THAT CASES BE TRIED
ACCORDING TO DUE PROCESS OF LAW INCLUDES THE ACCUSED'S RIGHT TO HAVE
HIS CASE TRIED BY A JUDGE AND A JURY IN A COURT OF LAW WITHOUT
LEGISLATIVE CONSTRAINT OR INTERFERENCE.  THESE STATUTORY PRESUMPTIONS
CLEARLY VIOLATE THE COMMAND OF THAT AMENDMENT.  CONGRESS CAN DECLARE A
CRIME, BUT IT MUST LEAVE THE TRIAL OF THAT CRIME TO THE COURTS.  SEE
LEARY V. UNITED STATES, 395 U.S. 6, 55 (1969) (CONCURRING IN RESULT);
AND UNITED STATES V. GAINEY, 380 U.S. 63, 84-85 (1965) (DISSENTING
OPINION). 

IT IS MY BELIEF THAT THESE STATUTORY PRESUMPTIONS ARE TOTALLY
UNCONSTITUTIONAL FOR YET ANOTHER REASON, AND IT IS A CRITICALLY
IMPORTANT ONE.  AS DISCUSSED EARLIER, THE CONSTITUTION REQUIRES THAT
THE DEFENDANT IN A CRIMINAL CASE BE PRESUMED INNOCENT AND IT PLACES THE
BURDEN OF PROVING GUILT SQUARELY ON THE GOVERNMENT.  STATUTORY
PRESUMPTIONS SUCH AS THOSE INVOLVED IN THIS CASE ROB THE DEFENDANT OF
AT LEAST PART OF HIS PRESUMED INNOCENCE AND CAST UPON HIM THE BURDEN OF
PROVING THAT HE IS NOT GUILTY.  THE PRESUMPTION IN 21 U.S.C. 174 MAKES
THIS SHIFT IN THE BURDEN OF PROOF EXPLICIT.  IT PROVIDES THAT
POSSESSION OF NARCOTIC DRUGS SHALL BE DEEMED SUFFICIENT EVIDENCE TO
JUSTIFY A CONVICTION "UNLESS THE DEFENDANT EXPLAINS THE POSSESSION TO
THE SATISFACTION OF THE JURY."  HOWEVER, SO FAR AS ROBBING THE
DEFENDANT OF HIS PRESUMPTION OF INNOCENCE IS CONCERNED, IT MAKES NO
DIFFERENCE WHETHER THE STATUTE EXPLICITLY SAYS THE DEFENDANT CAN REBUT
THE PRESUMPTION OF GUILT (AS DOES THE PROVISION OF 21 U.S.C. 174 JUST
QUOTED), OR WHETHER THE STATUTE SIMPLY USES THE LANGUAGE OF "PRIMA
FACIE CASE" AND LEAVES THE POSSIBILITY OFTHEDEFENDANT'S REBUTTING THE
PRESUMPTION (AS DOES 26 U.S.C. 4704(A).  PRESUMPTIONS OF BOTH FORMS
TEND TO COERCE AND COMPEL THE DEFENDANT INTO TAKING THE WITNESS STAND
IN HIS OWN BEHALF, IN CLEAR VIOLATION OF THE ACCUSED'S FIFTH AMENDMENT
PRIVILEGE AGAINST SELF-INCRIMINATION.  THIS PRIVILEGE HAS BEEN
CONSISTENTLY INTERPRETED TO ESTABLISH THE DEFENDANT'S ABSOLUTE RIGHT
NOT TO TESTIFY AT HIS OWN TRIAL UNLESS HE FREELY CHOOSES TO DO SO.  AS
WE OBSERVED IN MALLOY V. HOGAN, 378 U.S. 1, 8 (1964), THE PRIVILEGE IS
FULFILLED ONLY WHEN THE PERSON IS GUARANTEED "THE RIGHT . . . TO REMAIN
SILENT UNLESS HE CHOOSES TO SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN
WILL . . . . "  THE DEFENDANT'S RIGHT TO A FREE AND UNFETTERED CHOICE
IN WHETHER OR NOT TO TESTIFY IS EFFECTIVELY DESTROYED BY THE COERCIVE
EFFECT OF THE STATUTORY PRESUMPTIONS FOUND IN 21 U.S.C. 174 AND 26
U.S.C. 4704(A).  SEE UNITED STATES V. GAINEY, 380 U.S. 63, 71-74, 87
(1965) (DISSENTING OPINIONS).  MOREOVER, WHEN THE DEFENDANT DECLINES TO
TESTIFY AND THE TRIAL JUDGE STATES TO THE JURY AS HE DID IN THIS CASE
THAT EVIDENCE OF POSSESSION OF NARCOTICS SHALL BE DEEMED SUFFICIENT TO
CONVICT "UNLESS THE DEFENDANT EXPLAINS THE POSSESSION TO THE
SATISFACTION OF THE JURY,"  SUCH AN INSTRUCTION IS NOTHING LESS THAN
JUDICIAL COMMENT UPON THE DEFENDANT'S FAILURE TO TESTIFY, A PRACTICE
THAT WE HELD VIOLATIVE OF THE SELF-INCRIMINATION CLAUSE IN GRIFFIN V.
CALIFORNIA, 380 U.S. 609 (1965). 

HOW DOES THE COURT RESPOND TO THE GRAVE CONSTITUTIONAL PROBLEMS
RAISED BY THESE PRESUMPTIONS OF GUILT?  IT SAYS ONLY THAT THESE
PRESUMPTIONS ARE, IN ITS VIEW, "REASONABLE" OR FACTUALLY SUPPORTABLE
"BEYOND A REASONABLE DOUBT."  IN OTHER WORDS, THE COURT HAS CONCLUDED
THAT THE PRESUMPTIONS ARE "FAIR" AND APPARENTLY THINKS THAT IS A
SUFFICIENT ANSWER.  IT MATTERS NOT TO TODAY'S MAJORITY THAT THE
EVIDENCE THAT IT CITES TO SHOW THE FACTUAL BASIS OF THE PRESUMPTIONS
WAS NEVER INTRODUCED AT PETITIONER'S TRIAL, AND THAT PETITIONER WAS
NEVER GIVEN AN OPPORTUNITY TO CONFRONT BEFORE THE JURY THE MANY EXPERT
WITNESSES NOW ARRAYED AGAINST HIM IN THE FOOTNOTES OF THE COURT'S
OPINION.  NOR DOES IT APPARENTLY MATTER TO THE COURT THAT THE FACT
FINDING ROLE IT UNDERTAKES TODAY IS CONSTITUTIONALLY VESTED NOT IN THIS
COURT BUT IN THE JURY.  IF CONGRESS WANTS TO MAKE SIMPLE POSSESSION OF
NARCOTICS AN OFFENSE, I BELIEVE IT HAS POWER TO DO SO.  BUT THIS COURT
HAS NO SUCH CONSTITUTIONAL POWER.  NOR HAS CONGRESS THE POWER TO
RELIEVE THE PROSECUTION OF THE BURDEN OF PROVING ALL THE FACTS THAT IT
AS A LEGISLATIVE BODY DEEMS CRUCIAL TO THE OFFENSES IT CREATES. 

FOR THE REASONS STATED HERE, I WOULD WITHOUT HESITATION REVERSE
PETITIONER'S CONVICTIONS UNDER COUNTS 1, 2, 3, AND 4. 

JOSIAH E. DUBOIS, JR., BY APPOINTMENT OF THE COURT, 395 U.S. 973,
ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER.     LAWRENCE G.
WALLACE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
JEROME M. FEIT, AND SIDNEY M. GLAZER. 

STEVEN R. RIVKIN ARGUED THE CAUSE AND FILED A BRIEF FOR CLEVELAND
BURGESS AS AMICUS CURIAE URGING REVERSAL. 
..END :






















GUTKNECHT V. UNITED STATES, 396 U.S. 295 


       GUTKNECHT V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 71.  ARGUED NOVEMBER 20, 1969-- DECIDED JANUARY 19,

           1970 


WHILE PETITIONER'S I-A SELECTIVE SERVICE CLASSIFICATION WAS ON APPEAL
FROM THE LOCAL BOARD'S DENIAL OF HIS APPLICATION FOR EXEMPTION AS A
CONSCIENTIOUS OBJECTOR, PETITIONER SURRENDERED HIS REGISTRATION
CERTIFICATE AND CLASSIFICATION NOTICE BY LEAVING THEM, ALONG WITH A
STATEMENT AGAINST THE WAR IN VIETNAM, ON THE STEPS OF THE FEDERAL
BUILDING.  THE STATE BOARD DENIED THE EXEMPTION AND CLASSIFIED
PETITIONER I-A.  HE WAS THEREAFTER DECLARED DELINQUENT BY HIS LOCAL
BOARD FOR FAILING TO RETAIN HIS REGISTRATION AND CLASSIFICATION PAPERS
IN HIS POSSESSION AT ALL TIMES AS REQUIRED BY THE SELECTIVE SERVICE
REGULATIONS.  PURSUANT TO THE REGULATIONS PROMULGATED UNDER THE
MILITARY SELECTIVE SERVICE ACT OF 1967 A LOCAL BOARD MAY DECLARE A
REGISTRANT A "DELINQUENT" FOR FAILURE TO PERFORM DUTIES REQUIRED BY THE
SELECTIVE SERVICE LAW.  A REGISTRANT IN I-A STATUS WHO IS DECLARED
DELINQUENT IS, UNDER 32 CFR 1642.13, ASSIGNED FIRST PRIORITY IN THE
ORDER OF INDUCTION CALL, DEPRIVING HIM OF HIS PREVIOUS STANDING IN THE
ORDER OF CALL.  PETITIONER WAS ORDERED TO REPORT FOR INDUCTION ABOUT A
MONTH AFTER HE HAD BEEN DECLARED A DELINQUENT.  IN VIEW OF PETITIONER'S
AGE (20), IT IS UNLIKELY THAT HE WOULD HAVE BEEN CALLED AT THAT TIME
FOR INDUCTION HAD HE NOT BEEN DECLARED A DELINQUENT.  FOLLOWING
PETITIONER'S REFUSAL ON THE DESIGNATED DATE TO BE PROCESSED FOR
INDUCTION HE WAS INDICTED AND LATER CONVICTED FOR WILFULLY AND
KNOWINGLY FAILING "TO PERFORM A DUTY REQUIRED OF HIM" UNDER THE ACT. 
HIS CONVICTION WAS AFFIRMED ON APPEAL.  PETITIONER ATTACKS AS INVALID
THE SELECTIVE SERVICE REGULATIONS ACCELERATING THE INDUCTION OF ONE
DECLARED TO BE A DELINQUENT.  HELD: 

1.  PETITIONER'S FAILURE TO APPEAL ADMINISTRATIVELY FROM THE ORDER
DECLARING HIM DELINQUENT DOES NOT DEPRIVE HIM OF STANDING TO CONTEST
HIS CONVICTION, AS THE REGULATIONS CONFERRING HEARING RIGHTS APPLY TO
THOSE CONTESTING CLASSIFICATIONS MADE BY LOCAL BOARDS AND NOT TO THOSE
LIKE PETITIONER WHOSE DELINQUENCY RESTS ON UNDISPUTED FACTS OR TO THOSE
WHOSE INDUCTION HAS MERELY BEEN ACCELERATED.  PP. 299-301. 

2.  THE DELINQUENCY REGULATIONS UNDER WHICH PETITIONER WAS
PUNITIVELY DEPRIVED OF THE ORDER-OF-CALL PREFERENCE ACCORDED TO HIM ARE
NOT AUTHORIZED BY THE ACT AND ARE THEREFORE VOID.  PP. 301-308. 

(A) CONGRESS INTENDED TO PUNISH DELINQUENTS THROUGH THE CRIMINAL LAW
AND NOT THROUGH A DELINQUENCY PROCEDURE, WHICH HAS NO STATUTORY
SANCTION.  PP. 302-303. 

(B) DEFERMENT OF THE ORDER OF CALL MAY BESTOW GREAT BENEFITS AND ITS
ACCELERATION MAY BE EXTREMELY PUNITIVE.  PP. 304-306. 

(C) THE POWER UNDER THE SELECTIVE SERVICE REGULATIONS TO DECLARE A
REGISTRANT "DELINQUENT" LACKS STATUTORY STANDARDS OR GUIDELINES WITHOUT
WHICH THE LEGALITY OF A DELINQUENCY DECLARATION CANNOT BE JUDGED.  PP.
306-308. 

406 F.2D 494, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN IMPORTANT QUESTION UNDER THE MILITARY SELECTIVE
SERVICE ACT OF 1967, 62 STAT. 604, AS AMENDED, 65 STAT. 75, 81 STAT.
100. 

PETITIONER REGISTERED WITH HIS SELECTIVE SERVICE LOCAL BOARD AND WAS
CLASSIFIED I-A.  SHORTLY THEREAFTER HE RECEIVED A II-S (STUDENT)
CLASSIFICATION.  IN A LITTLE OVER A YEAR HE NOTIFIED THE BOARD THAT HE
WAS NO LONGER A STUDENT AND WAS CLASSIFIED I-A.  MEANWHILE HE HAD ASKED
FOR AN EXEMPTION AS A CONSCIENTIOUS OBJECTOR.  THE BOARD DENIED THAT
EXEMPTION, RECLASSIFYING HIM AS I-A, AND HE APPEALED TO THE STATE
BOARD.  WHILE THAT APPEAL WAS PENDING, HE SURRENDERED HIS REGISTRATION
CERTIFICATE AND NOTICE OF CLASSIFICATION BY LEAVING THEM ON THE STEPS
OF THE FEDERAL BUILDING IN MINNEAPOLIS WITH A STATEMENT EXPLAINING HE
WAS OPPOSED TO THE WAR IN VIETNAM.  THAT WAS ON OCTOBER 16, 1967.  ON
NOVEMBER 22, 1967, HIS APPEAL TO THE STATE BOARD WAS DENIED.  ON
NOVEMBER 27, 1967, HE WAS NOTIFIED THAT HE WAS I-A. 

ON DECEMBER 20, 1967, HE WAS DECLARED DELINQUENT BY THE LOCAL
BOARD.  ON DECEMBER 26, 1967, HE WAS ORDERED TO REPORT FOR INDUCTION ON
JANUARY 24, 1968.  HE REPORTED AT THE INDUCTION CENTER, BUT IN HIS CASE
THE NORMAL PROCEDURE OF INDUCTION WAS NOT FOLLOWED.  RATHER, HE SIGNED
A STATEMENT, "I REFUSE TO TAKE PART, OR ALL, (SIC) OF THE PRESCRIBED
PROCESSING."  THEREAFTER HE WAS INDICTED FOR WILFULLY AND KNOWINGLY
FAILING AND NEGLECTING "TO PERFORM A DUTY REQUIRED OF HIM" UNDER THE
ACT.  HE WAS TRIED WITHOUT A JURY, FOUND GUILTY, AND SENTENCED TO FOUR
YEARS' IMPRISONMENT.  283 F.SUPP.  945.  HIS CONVICTION WAS AFFIRMED BY
THE COURT OF APPEALS.  406 F.2D 494.  THE CASE IS HERE ON A PETITION
FOR A WRIT OF CERTIORARI.  394 U.S. 997. 

        I 

AMONG THE DEFENSES TENDERED AT THE TRIAL WAS THE LEGALITY OF THE
DELINQUENCY REGULATIONS WHICH WERE APPLIED TO PETITIONER.  IT IS THAT
SINGLE QUESTION WHICH WE WILL CONSIDER. 

BY THE REGULATIONS PROMULGATED UNDER THE ACT A LOCAL BOARD MAY
DECLARE A REGISTRANT TO BE A "DELINQUENT" WHENEVER HE 

"HAS FAILED TO PERFORM ANY DUTY OR DUTIES REQUIRED OF HIM UNDER THE
SELECTIVE SERVICE LAW OTHER THAN THE DUTY TO COMPLY WITH AN ORDER TO
REPORT FOR INDUCTION (SSS FORM NO. 252) OR THE DUTY TO COMPLY WITH AN
ORDER TO REPORT FOR CIVILIAN WORK AND STATEMENT OF EMPLOYER (SSS FORM
NO. 153) . . . . "  32 CFR 1642.4. 

IN THIS CASE, PETITIONER WAS DECLARED A DELINQUENT FOR FAILING TO
HAVE HIS REGISTRATION CERTIFICATE (SSS FORM NO. 2) AND CURRENT
CLASSIFICATION NOTICE (SSS FORM NO. 110) IN HIS PERSONAL POSSESSION AT
ALL TIMES, AS REQUIRED BY 32 CFR 1617.1 AND 1623.5, RESPECTIVELY. 

THE CONSEQUENCES OF BEING DECLARED A DELINQUENT UNDER SEC. 1642.4
ARE OF TWO TYPES:  (1) REGISTRANTS WHO HAVE DEFERMENTS OR EXEMPTIONS
MAY BE RECLASSIFIED IN ONE OF THE CLASSES AVAILABLE FOR SERVICE, I-A, I
A-O, OR I-O, WHICHEVER IS DEEMED APPLICABLE.  32 CFR 1642.12.  (2)
REGISTRANTS WHO ARE ALREADY CLASSIFIED I-A, I-A-O, OR I-O, AND THOSE
WHO ARE RECLASSIFIED TO SUCH A STATUS, WILL BE GIVEN FIRST PRIORITY IN
THE ORDER OF CALL FOR INDUCTION, REQUIRING THEM TO BE CALLED EVEN AHEAD
OF VOLUNTEERS FOR INDUCTION.  32 CFR 1642.13.  THE LATTER CONSEQUENCE
DEPRIVES THE REGISTRANT OF HIS PREVIOUS STANDING IN THE ORDER OF CALL
AS SET OUT IN 32 CFR 1631.7.  /1/ 

THE ORDER-OF-CALL PROVISION IN USE WHEN PETITIONER WAS DECLARED
"DELINQUENT"  /2/  IS SET OUT IN 32 CFR 1631.7(A).  THE PROVISION
LISTS, IN ORDER, SIX CATEGORIES OF REGISTRANTS AND PROVIDES THAT THE
REGISTRANTS SHALL BE SELECTED AND ORDERED TO REPORT FOR INDUCTION
ACCORDING TO THE ORDER OF THOSE CATEGORIES.  THE FIRST CATEGORY IS
DELINQUENTS; THE NEXT CATEGORY IS VOLUNTEERS; THE OTHER FOUR CATEGORIES
CONSIST OF NONVOLUNTEERS.  IN THIS CASE, THE PETITIONER WAS IN THE
THIRD OF THE SIX CATEGORIES AT THE TIME HE WAS DECLARED TO BE A
"DELINQUENT."  BY VIRTUE OF THE DECLARATION OF DELINQUENCY HE
WASMOVEDTO THE FIRST OF THE CATEGORIES WHICH MEANT, ACCORDING TO THE
BRIEF OF THE DEPARTMENT OF JUSTICE, THAT "IT IS UNLIKELY THAT
PETITIONER, WHO WAS 20 YEARS OF AGE WHEN ORDERED TO REPORT FOR
INDUCTION, WOULD HAVE BEEN CALLED AT SUCH AN EARLY DATE HAD HE NOT BEEN
DECLARED A DELINQUENT." 

IF A PERSON, WHO IS ORDERED TO REPORT FOR INDUCTION OR ALTERNATIVE
CIVILIAN SERVICE, REFUSES TO COMPLY WITH THAT ORDER, HE SUBJECTS
HIMSELF TO CRIMINAL PROSECUTION.  SEE 32 CFR 1642.41, 1660.30. 

THERE IS NO DOUBT CONCERNING THE PROPRIETY OF THE LATTER CRIMINAL
SANCTION, FOR CONGRESS HAS SPECIFICALLY PROVIDED FOR THEPUNISHMENTOF
THOSE WHO DISOBEY SELECTIVE SERVICE STATUTES AND REGULATIONS IN SEC. 12
OF THE MILITARY SELECTIVE SERVICE ACT OF 1967, 50 U.S.C. APP. 462 (1964
ED.,SUPP.  IV).  THE QUESTION POSED BY THIS CASE CONCERNS THE
LEGITIMACY OF THE DELINQUENCY REGULATIONS, WHICH WERE APPLIED TO THE
PETITIONER, SO AS TO DEPRIVE HIM OF HIS PREVIOUS STANDING IN THE ORDER
OF CALL. 

        II 

THERE IS A PRELIMINARY POINT WHICH MUST BE MENTIONED AND THAT IS THE
SUGGESTION THAT PETITIONER SHOULD HAVE TAKEN AN ADMINISTRATIVE APPEAL
FROM THE ORDER DECLARING HIM "DELINQUENT" AND THAT HIS FAILURE TO DO SO
BARS THE DEFENSE IN THE CRIMINAL PROSECUTION. 

THE PERTINENT REGULATION IS 32 CFR 1642.14, WHICH GIVES A DELINQUENT
WHO "IS CLASSIFIED IN OR RECLASSIFIED INTO CLASS I-A, CLASS I-A-O OR
CLASS I-O" THREE RIGHTS: 

(A) THE RIGHT TO A PERSONAL APPEARANCE, UPON REQUEST, "UNDER THE
SAME CIRCUMSTANCES AS IN ANY OTHER CASE"; 

(B) THE RIGHT TO HAVE HIS CLASSIFICATION REOPENED "IN THE DISCRETION
OF THE LOCAL BOARD"; AND 

(C) THE RIGHT TO APPEAL "UNDER THE SAME CIRCUMSTANCES AND BY THE
SAME PERSONS AS IN ANY OTHER CASE." 

THE RIGHT TO A PERSONAL APPEARANCE "IN ANY OTHER CASE" IS COVERED BY
32 CFR 1624.1(A).  THAT SECTION GIVES THE RIGHT TO "(EVERY REGISTRANT
AFTER HIS CLASSIFICATION IS DETERMINED BY THE LOCAL BOARD" PROVIDED A
REQUEST IS MADE THEREFOR WITHIN 30 DAYS.  THE ACTION TAKEN AGAINST THIS
PETITIONER, HOWEVER, DID NOT INVOLVE CLASSIFICATION.  THE TERM
"CLASSIFICATION" IS USED EXCLUSIVELY IN THE REGULATIONS TO REFER TO
CLASSIFICATION IN ONE OF THE CLASSES DETERMINING AVAILABILITY FOR
SERVICE, E.G., I-A, I-O.  SEE 32 CFR PTS.  1621-1623.  "DELINQUENCY" IS
NOT SUCH A CLASSIFICATION, AND A REGISTRANT IS "DECLARED" A DELINQUENT,
NOT "CLASSIFIED" AS A DELINQUENT.  SEE 32 CFR PT. 1642. 

THE RIGHT TO REOPEN HIS CLASSIFICATION IS ALSO IRRELEVANT TO
PETITIONER AS HE IS NOT ATTACKING HIS CLASSIFICATION, BUT ONLY HIS
ACCELERATED INDUCTION. 

THE RIGHT TO APPEAL "AS IN ANY OTHER CASE" IS COVERED BY 32 CFR
1626.2(A).  THAT SECTION PROVIDES THAT "(THE REGISTRANT . . . MAY
APPEAL TO AN APPEAL BOARD FROM THE CLASSIFICATION OF A REGISTRANT BY
THE LOCAL BOARD." 

AGAIN, SINCE PETITIONER WAS NOT CLASSIFIED IN CONJUNCTION WITH HIS
DELINQUENCY, BUT ONLY HAD HIS INDUCTION ACCELERATED, IT WOULD MEAN THAT
HE DID NOT HAVE THE RIGHT TO AN APPEAL UNDER THE REGULATIONS.  /3/  WE
ARE NOT ADVISED, IN ANY AUTHORITATIVE WAY, THAT THIS INTERPRETATION OF
THE REGULATIONS IS CONTRARY TO THE ADMINISTRATIVE CONSTRUCTION OF THEM
OR TO THE ACCEPTED PRACTICE.  /4/

        III 

WE COME THEN TO THE MERITS.  THE PROBLEM OF "DELINQUENCY" GOES BACK
TO THE 1917 ACT, 40 STAT. 76, AS SHOWN IN THE APPENDIX TO THIS
OPINION.  THE PRESENT "DELINQUENCY" REGULATIONS WITH WHICH WE ARE
CONCERNED STEM FROM THE 1948 ACT, 62 STAT. 604. 

THE REGULATIONS ISSUED UNDER THE 1948 ACT WERE SUBSTANTIALLY
IDENTICAL TO THE PRESENT DELINQUENCY REGULATIONS, 32 CFR PT. 1642. 
NOTHINGIN THE 1948 ACT OR IN ANY PRIOR ACT MAKES REFERENCE TO
DELINQUENCY OR DELINQUENTS.  THE REGULATIONS PURPORT TO ISSUE UNDER THE
AUTHORITY OF SEC. 10 OF THE 1948 ACT.  SECTION 10, HOWEVER, RELATES
NEITHER TO SELECTION (SEC. 5) NOR TO DEFERMENTS AND EXEMPTIONS (SEC.
6), BUT SIMPLY TO THE ADMINISTRATION OF THE ACT AS DELEGATED TO THE
PRESIDENT:  "THE PRESIDENT IS AUTHORIZED-- (1) TO PRESCRIBE THE
NECESSARY RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS
TITLE."  62 STAT. 619. 

THE DELINQUENCY PROVISIONS OF 32 CFR PT. 1642 SURVIVED THE MILITARY
SELECTIVE SERVICE ACT OF 1967 LARGELY INTACT.  AGAIN, HOWEVER, THERE IS
NOTHING TO INDICATE THAT CONGRESS AUTHORIZED THE SELECTIVE SERVICE
SYSTEM TO RECLASSIFY EXEMPT OR DEFERRED REGISTRANTS FOR PUNITIVE
PURPOSES AND TO PROVIDE FOR ACCELERATED INDUCTION OF DELINQUENTS. 
RATHER, THE CONGRESS REAFFIRMED ITS INTENTION UNDER SEC. 12 (50 U.S.C.
APP. 462 (1964 ED.,SUPP.  IV), TO PUNISH DELINQUENTS THROUGH THE
CRIMINAL LAW. 

IT IS TRUE, OF COURSE, THAT CONGRESS REFERRED TO "DELINQUENTS" IN
SEC. 6(H)(1), 81 STAT. 102, 50 U.S.C. APP. 456(H)(1) (1964 ED.,SUPP. 
IV): 

"AS USED IN THIS SUBSECTION, THE TERM 'PRIME AGE GROUP' MEANS THE
AGE GROUP WHICH HAS BEEN DESIGNATED BY THE PRESIDENT AS THE AGE GROUP
FROM WHICH SELECTIONS FOR INDUCTION INTO THE ARMED FORCES ARE FIRST TO
BE MADE AFTER DELINQUENTS AND VOLUNTEERS." 

THIS REFERENCE CONCERNS ONLY AN ORDER-OF-CALL PROVISION WHICH
INSTITUTES A CALL BY AGE GROUPS, 32 CFR 1631.7(B), A PROVISION WHICH
HAS NEVER BEEN USED.  THIS CASUAL MENTION OF THE TERM "DELINQUENTS,"
MOREOVER, MUST BE MEASURED AGAINST THE EXPLICIT CONGRESSIONAL PROVISION
FOR CRIMINAL PUNISHMENT OF THOSE WHO VIOLATE THE SELECTIVE SERVICE
LAWS, 50 U.S.C. APP. 462 (1964 ED.,SUPP.  IV), THE CONGRESSIONAL
PROVISION FOR EXEMPTIONS AND DEFERMENTS, 50 U.S.C. APP. 456 (1964
ED.,SUPP.  IV), AND CONGRESSIONAL EXPRESSIONS EMPHASIZING THE
IMPORTANCE OF AN IMPARTIAL ORDER OF CALL, 50 U.S.C. APP. 455 (1964
ED.,SUPP.  IV); H.R. CONF. REP. NO. 346, 90TH CONG.,1ST SESS., 9-10. 
THUS IT WAS THAT THE SOLICITOR GENERAL STATED IN HIS BRIEF IN
OESTEREICH V. SELECTIVE SERVICE BOARD, NO. 46, O.T. 1968, 393 U.S.
233: 

     "IT IS DIFFICULT TO BELIEVE THAT CONGRESS INTENDED THE LOCAL

  BOARDS TO HAVE THE UNFETTERED DISCRETION TO DECIDE THAT ANY

  VIOLATION OF THEACTOR REGULATIONS WARRANTS A DECLARATION OF

  DELINQUENCY, RECLASSIFICATION AND INDUCTION . . . . "  BRIEF FOR

  THE UNITED STATES 54. 

JUDGE DOOLING STATED IN UNITED STATES V. EISDORFER, 299 F.SUPP. 
975, 989: 

"THE DELINQUENCY PROCEDURE HAS NO STATUTORY AUTHORIZATION AND NO
CONGRESSIONAL SUPPORT EXCEPT WHAT CAN BE SPELLED OUT OF THE 1967
AMENDMENT OF 50 U.S.C. APP. 456(H)(1).  . . . THE DELINQUENCY
REGULATIONS, MOREOVER, DISREGARD THE STRUCTURE OF THE ACT; DEFERMENTS
AND PRIORITIES-OF-INDUCTION, ADOPTED IN THE PUBLIC INTEREST, ARE
TREATED AS IF THEY WERE FORFEITABLE PERSONAL PRIVILEGES." 

OESTEREICH INVOLVED A CASE WHERE A DIVINITY SCHOOL STUDENT WITH A
STATUTORY EXEMPTION AND A IV-D CLASSIFICATION WAS DECLARED "DELINQUENT"
FOR TURNING IN HIS REGISTRATION CERTIFICATE TO THE GOVERNMENT IN
PROTEST AGAINST THE WAR IN VIETNAM.  HIS BOARD THEREUPON RECLASSIFIED
HIM AS I-A.  AFTER HE EXHAUSTED HIS ADMINISTRATIVE REMEDIES, HE WAS
ORDERED TO REPORT FOR INDUCTION.  AT THAT POINT HE BROUGHT SUIT IN THE
DISTRICT COURT FOR JUDICIAL REVIEW OF THE ACTION BY THE BOARD.  WE HELD
THAT UNDER THE UNUSUAL CIRCUMSTANCES OF THE CASE, PRE-INDUCTION
JUDICIAL REVIEW WAS PERMISSIBLE PRIOR TO INDUCTION AND THAT THERE WAS
NO STATUTORY AUTHORIZATION TO USE THE "DELINQUENCY" PROCEDURE TO
DEPRIVE A REGISTRANT OF A STATUTORY EXEMPTION.  WE SAID: 

"THERE IS NO SUGGESTION IN THE LEGISLATIVE HISTORY THAT, WHEN
CONGRESS HAS GRANTED AN EXEMPTION AND A REGISTRANT MEETS ITS TERMS AND
CONDITIONS, A BOARD CAN NONETHELESS WITHOLD IT FROM HIM FOR ACTIVITIES
OR CONDUCT NOT MATERIAL TO THE GRANT OR WITHDRAWAL OF THE EXEMPTION. 
SO TO HOLD WOULD MAKE THE BOARDS FREE-WHEELING AGENCIES METING OUT
THEIR BRAND OF JUSTICE IN A VINDICTIVE MANNER. 

    "ONCE A PERSON REGISTERS AND QUALIFIES FOR A STATUTORY

  EXEMPTION, WE FIND NO LEGISLATIVE AUTHORITY TO DEPRIVE HIM OF

  THAT EXEMPTION BECAUSE OF CONDUCT OR ACTIVITIES UNRELATED TO THE

  MERITS OF GRANTING OR CONTINUING THAT EXEMPTION."  393 U.S.,AT

  237. 

THE QUESTION IN THE INSTANT CASE IS DIFFERENT BECAUSE NO
"EXEMPTION," NO "DEFERMENT," NO "CLASSIFICATION" IN THE STATUTORY SENSE
IS INVOLVED.  "DELINQUENCY" WAS USED HERE NOT TO CHANGE A
CLASSIFICATION BUT TO ACCELERATE PETITIONER'S INDUCTION FROM THE THIRD
CATEGORY TO THE FIRST; AND IT WAS THAT DIFFERENCE WHICH LED THE COURT
OF APPEALS TO CONCLUDE THAT WHAT WE SAID IN OESTEREICH WAS NOT
CONTROLLING HERE. 

DEFERMENT OF THE ORDER OF CALL MAY BE THE BESTOWAL OF GREAT
BENEFITS; AND ITS ACCELERATION MAY BE EXTREMELY PUNITIVE.  AS ALREADY
INDICATED, THE STATUTORY POLICY IS THE SELECTION OF PERSONS FOR
TRAINING AND SERVICE "IN AN IMPARTIAL MANNER."  50 U.S.C. APP.
455(A)(1) (1964 ED.,SUPP.  IV).  THAT IS THE ONLY EXPRESS STATUTORY
PROVISION WHICH GIVES SPECIFIC CONTENT TO THAT PHRASE.  THAT SECTION
DOES PERMIT PEOPLE REGISTERED AT ONE TIME TO BE SELECTED "BEFORE,
TOGETHER WITH, OR AFTER" PERSONS REGISTERED AT A PRIOR TIME.  MOREOVER,
THOSE WHO HAVE NOT REACHED THE AGE OF 19 ARE GIVEN A DEFERRED POSITION
IN THE ORDER OF CALL.  BUT THOSE VARIATIONS IN THE PHRASE "IN AN
IMPARTIAL MANNER" ARE OF NO PARTICULAR HELP IN THE INSTANT CASE, EXCEPT
TO UNDERLINE THE CONCERN OF CONGRESS WITH THE INTEGRITY OF THAT
PHRASE.     WE KNOW FROM THE LEGISLATIVE HISTORY THAT, WHILE CONGRESS
DID NOT ADDRESS ITSELF SPECIFICALLY TO THE "DELINQUENCY" ISSUE, IT WAS
VITALLY CONCERNED WITH THE ORDER OF SELECTION, AS WELL AS WITH
EXEMPTIONS AND DEFERMENTS.  THUS IN 1967 A CONFERENCE REPORT BROUGHT
HOUSE AND SENATE TOGETHER AGAINST THE GRANT OF POWER TO THE PRESIDENT
TO INITIATE "A RANDOM SYSTEM OF SELECTION"-- A GRANT WHICH, IT WAS
FELT, WOULD PRECLUDE CONGRESS FROM "PLAYING AN AFFIRMATIVE ROLE" IN THE
CONSTITUTIONAL TASK OF "RAISING ARMIES."  H.R. CONF. REP. NO. 346,
SUPRA, AT 9-10.  IT IS DIFFICULT TO BELIEVE THAT WITH THAT SHOW OF
RESISTANCE TO A GRANT OF A MORE LIMITED POWER, THERE WAS ACQUIESCENCE
IN THE DELEGATION OF A BROAD, SWEEPING POWER TO SELECTIVE SERVICE TO
DISCIPLINE REGISTRANTS THROUGH THE "DELINQUENCY" DEVICE. 

THE PROBLEM OF THE ORDER OF INDUCTION WAS ONCE MORE BEFORE THE
CONGRESS LATE IN 1969.  SECTION 5(A)(2) OF THE 1967 ACT, 50 U.S.C. APP.
455(A)(2) (1964 ED.,SUPP.  IV), PROVIDED: 

     "NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (1) OF THIS

  SUBSECTION, THE PRESIDENT IN ESTABLISHING THE ORDER OF INDUCTION

  FOR REGISTRANTS WITHIN THE VARIOUS AGE GROUPS FOUND QUALIFIED FOR

  INDUCTION SHALL NOT EFFECT ANY CHANGE IN THE METHOD OF

  DETERMINING THE RELATIVE ORDER OF INDUCTION FOR SUCH REGISTRANTS

  WITHIN SUCH AGE GROUPS AS HAS BEEN HERETOFORE ESTABLISHED AND IN

  EFFECT ON THE DATE OF ENACTMENT OF THIS PARAGRAPH, UNLESS

  AUTHORIZED BY LAW ENACTED AFTER THE DATE OF ENACTMENT OF THE

  MILITARY SELECTIVE SERVICE ACT OF 1967." 

WHILE SEC. 5(A)(2) GAVE THE PRESIDENT AUTHORITY TO DESIGNATE A PRIME
AGE GROUP FOR INDUCTION, IT REQUIRED HIM TO SELECT FROM THE OLDEST
FIRST WITHIN THE GROUP.  S. REP. NO. 91-531, 91ST CONG.,1ST SESS., 1. 
THE ACT OF NOVEMBER 26, 1969, 83 STAT. 220, REPEALED SEC. 5(A)(2)
PURSUANT TO A REQUEST OF THE PRESIDENT THAT A RANDOM SYSTEM OF
SELECTION BE AUTHORIZED.  SEE S. REP. NO. 91-531, SUPRA, AT 3-4; H.R.
REP. NO. 91-577, 91ST CONG.,1ST SESS., 2, 9.  /5/  THE RANDOM SYSTEM
HAS NOW BEEN PUT IN FORCE.  /6/  IT APPLIES OF COURSE ONLY
PROSPECTIVELY.  BUT ITS LEGISLATIVE HISTORY, AS WELL AS THE CONCERN OF
THE CONGRESS THAT THE ORDER IN WHICH REGISTRANTS ARE INDUCTED BE
ACHIEVED "IN AN IMPARTIAL MANNER," EMPHASIZES A DEEP CONCERN BY
CONGRESS WITH THE PROBLEMS OF THE ORDER OF INDUCTION AS WELL AS WITH
THOSE OF EXEMPTIONS, DEFERMENTS, AND CLASSIFICATIONS. 

WHILE SEC. 5(A)(1) PROVIDES THAT "THERE SHALL BE NO DISCRIMINATION
AGAINST ANY PERSON ON ACCOUNT OF RACE OR COLOR," 50 U.S.C. APP.
455(A)(1) (1964 ED.,SUPP.  IV), THERE IS NO SUGGESTION THAT AS RESPECTS
OTHER TYPES OF DISCRIMINATION THE SELECTIVE SERVICE HAS FREEWHEELING
AUTHORITY TO RIDE HERD ON THE REGISTRANTS USING IMMEDIATE INDUCTION AS
A DISCIPLINARY OR VINDICTIVE MEASURE. 

THE POWER UNDER THE REGULATIONS TO DECLARE A REGISTRANT "DELINQUENT"
HAS NO STATUTORY STANDARD OR EVEN GUIDELINES.  THE POWER IS EXERCISED
ENTIRELY AT THE DISCRETION OF THE LOCAL BOARD.  IT IS A BROAD, ROVING
AUTHORITY, A TYPE OF ADMINISTRATIVE ABSOLUTISM NOT CONGENIAL TO OUR LAW
MAKING TRADITIONS.  IN KENT V. DULLES, 357 U.S. 116, 128-129, WE
REFUSED TO IMPUTE TO CONGRESS THE GRANT OF "UNBRIDLED DISCRETION" TO
THE SECRETARY OF STATE TO ISSUE OR WITHHOLD A PASSPORT FROM A CITIZEN
"FOR ANY SUBSTANTIVE REASON HE MAY CHOOSE."  ID., AT 128.  WHERE THE
LIBERTIES OF THE CITIZEN ARE INVOLVED, WE SAID THAT "WE WILL CONSTRUE
NARROWLY ALL DELEGATED POWERS THAT CURTAIL OR DILUTE THEM."  ID., AT
129.  THE DIRECTOR OF SELECTIVE SERVICE DESCRIBED THE "DELINQUENCY"
REGULATIONS AS DESIGNED "TO PREVENT, WHEREVER POSSIBLE, PROSECUTIONS
FOR MINOR INFRACTIONS OF RULES" DURING THE SELECTIVE SERVICE
PROCESSING.  /7/  WE SEARCH THE ACT IN VAIN FOR ANY CLUES THAT CONGRESS
DESIRED THE ACT TO HAVE PUNITIVE SANCTIONS APART FROM THE CRIMINAL
PROSECUTIONS SPECIFICALLY AUTHORIZED.  NOR DO WE READ IT AS GRANTING
PERSONAL PRIVILEGES THAT MAY BE FORFEITED FOR TRANSGRESSIONS THAT
AFFRONT THE LOCAL BOARD.  IF FEDERAL OR STATE LAWS ARE VIOLATED BY
REGISTRANTS, THEY CAN BE PROSECUTED.  IF INDUCTION IS TO BE SUBSTITUTED
FOR THESE PROSECUTIONS, A VAST REWRITING OF THE ACT IS NEEDED. 
STANDARDS WOULD BE NEEDED BY WHICH THE LEGALITY OF A DECLARATION OF
"DELINQUENCY" COULD BE JUDGED.  AND THE REGULATIONS, WHEN WRITTEN,
WOULD BE SUBJECT TO THE CUSTOMARY INQUIRIES AS TO INFIRMITIES ON THEIR
FACE OR IN THEIR APPLICATION, INCLUDING THE QUESTION WHETHER THEY WERE
USED TO PENALIZE OR PUNISH THE FREE EXERCISE OF CONSTITUTIONAL RIGHTS. 

              REVERSED. 

/1/  UNDER THE TERMS OF 32 CFR 1631.7(A)(1) IN EFFECT AT THE TIME OF
PETITIONER'S TRIAL, THE FIRST IN LINE FOR INDUCTION WERE "(DELINQUENTS
WHO HAVE ATTAINED THE AGE OF 19 YEARS IN THE ORDER OF THEIR DATES OF
BIRTH WITH THE OLDEST BEING SELECTED FIRST."  THAT PROVISION HAS BEEN
INCLUDED IN THE NEW SEC. 1631.7(A) PROMULGATED AFTER THE RANDOM SYSTEM
OF SELECTION, DISCUSSED HEREAFTER, WAS ADOPTED. 

/2/  THE ORDER OF CALL PROVIDED FOR BY 32 CFR 1631.7(B) CONCERNED
CALLS OF A DESIGNATED "AGE GROUP OR GROUPS," A SYSTEM NEVER USED. 

/3/  CF. MCKART V. UNITED STATES, 395 U.S. 185.  IN MCKART, THE
PETITIONER, WHO CHALLENGED HIS I-A CLASSIFICATION, WAS GIVEN A RIGHT TO
APPEAL UNDER THE REGULATIONS BUT FAILED TO EXERCISE IT.  THIS COURT
HELD THAT THIS FAILURE DID NOT PRECLUDE THE PETITIONER FROM RAISING THE
INVALIDITY OF HIS I-A CLASSIFICATION AS A DEFENSE TO HIS PROSECUTION
FOR REFUSAL TO REPORT FOR INDUCTION.  THE DOCTRINE OF EXHAUSTION OF
REMEDIES, WE HELD, WAS INAPPLICABLE WHERE THE QUESTION SOUGHT TO BE
RAISED WAS SOLELY ONE OF STATUTORY INTERPRETATION, ID., AT 197-199, AND
WHERE APPLICATION OF THE DOCTRINE WOULD SERVE TO DEPRIVE A CRIMINAL
DEFENDANT OF A DEFENSE TO HIS PROSECUTION, ID., AT 197. 

/4/  THE DEPARTMENT OF JUSTICE DOES NOT SUGGEST THAT A REGISTRANT
WHO HAS BEEN DECLARED A "DELINQUENT" HAS ADMINISTRATIVE REMEDIES FOR A
REVIEW OF THAT ACTION.  IT POINTS OUT, HOWEVER, THAT THE REGULATIONS,
32 CFR 1642.4(C), PROVIDE THAT:  "A REGISTRANT WHO HAS BEEN DECLARED TO
BE A DELINQUENT MAY BE REMOVED FROM THAT STATUS BY THE LOCAL BOARD AT
ANY TIME."  IT SUGGESTS THAT "AT LEAST UP TO THE TIME OF THE ISSUANCE
OF THE ORDER TO REPORT FOR PRIORITY INDUCTION, IT WOULD BE AN ABUSE OF
DISCRETION FOR A BOARD TO REFUSE REMOVAL IN THE CASE OF A REGISTRANT
WHO SOUGHT IN GOOD FAITH TO CORRECT HIS BREACH OF DUTY."  WHATEVER MAY
BE THE ULTIMATE REACH OF 32 CFR 1642.4(C), IT SEEMS TO BE CONCEDED THAT
IT HAS LITTLE RELEVANCE TO THE PRESENT CASE WHERE, THE DEPARTMENT
STATES, "THE LOCAL BOARD HAD SOLID EVIDENCE THAT PETITIONER HAD
DISPOSSESSED HIMSELF OF HIS DRAFT CARDS." 

/5/  AND SEE 115 CONG.REC.H 10255 ET SEQ. (OCT. 29, 1969).  ID., AT
H 10301 ET SEQ., H 10313 ET SEQ. (OCT. 30, 1969).  ID., AT S 14632 ET
SEQ. (NOV. 19, 1969). 

/6/  THE RANDOM SELECTION WAS ESTABLISHED BY THE PRESIDENT THROUGH
PROCLAMATION 3945, ON NOVEMBER 26, 1969.  34 FED.REG.  19017 (NOV. 29,
1969). 

/7/  SELECTIVE SERVICE SYSTEM, LEGAL ASPECTS OF SELECTIVE SERVICE 46
(REV. 1969). 

"THE ESCALATION OF THE UNITED STATES MILITARY INVOLVEMENTINVIETNAM
INCREASED THE DRAFT CALLS, AND THERE WAS AN UPSURGE OF PUBLIC
DEMONSTRATIONS IN PROTEST.  SOME OF THESE PROTESTS TOOK THE FORM OF
TURNING 'DRAFT' CARDS IN TO VARIOUS PUBLIC OFFICIALS OF THE DEPARTMENT
OF JUSTICE, THE STATE OR NATIONAL HEADQUARTERS OF SELECTIVE SERVICE
SYSTEM, OR DIRECTLY TO LOCAL BOARDS.  BY AGREEMENT WITH THE DEPARTMENT
OF JUSTICE, REGISTRANTS WHO TURNED IN CARDS (AS CONTRASTED TO THOSE WHO
BURNED CARDS) WERE NOT PROSECUTED UNDER SECTION 12(A) OF THE MILITARY
SELECTIVE SERVICE LAW OF 1967, BUT WERE PROCESSED ADMINISTRATIVELY BY
THE LOCAL BOARDS.  IN MANY INSTANCES, THE LOCAL BOARDS DETERMINED THAT
A DEFERMENT OF SUCH REGISTRANT WAS NO LONGER IN THE NATIONAL INTEREST,
AND HE WAS RECLASSIFIED 1-A DELINQUENT FOR FAILURE TO PERFORM A DUTY
REQUIRED OF HIM UNDER THEACT, NAMELY RETAINING IN HIS POSSESSION THE
REGISTRATION CARD AND CURRENT NOTICE OF CLASSIFICATION CARD."  ID., AT
47. 

MR. CHIEF JUSTICE BURGER CONCURS IN THE RESULT REACHED BY THE COURT
GENERALLY FOR THE REASONS SET OUT IN THE SEPARATE OPINION OF MR.
JUSTICE STEWART. 

MR. JUSTICE WHITE JOINS THE OPINION OF THE COURT INSOFAR AS IT HOLDS
THAT CONGRESS HAS NOT DELEGATED TO THE PRESIDENT THE AUTHORITY TO
PROMULGATE THE DELINQUENCY REGULATIONS INVOLVED IN THIS CASE. 

        APPENDIX TO OPINION OF THE COURT 

UNDER THE SELECTIVE SERVICE ACT OF 1917, 40 STAT. 76, IF A
REGISTRANT FAILED TO RETURN HIS QUESTIONNAIRE OR TO REPORT FOR PHYSICAL
EXAMINATION, HE WAS MAILED A SPECIAL ORDER DIRECTING HIM TO REPORT FOR
MILITARY SERVICE AT A SPECIFIED TIME.  THE REGISTRANT BECAME A MEMBER
OF THE SERVICE ON THE DATE SPECIFIED IN HIS ORDER; ANY REFUSAL TO OBEY
THAT ORDER SUBJECTED HIM TO PROSECUTION UNDER MILITARY LAW FOR
DESERTION.  "SINCE IN MOST INSTANCES THE DELINQUENT REGISTRANT WOULD
NEVER RECEIVE THE ORDER, DUE TO NOT BEING IN CONTACT WITH HIS LOCAL
BOARD, HE WOULD NORMALLY ACQUIRE THE STATUS OF A DESERTER WITHOUT
HAVING ANY ACTUAL KNOWLEDGE OF HIS INDUCTION."  SELECTIVE SERVICE
SYSTEM, ENFORCEMENT OF THE SELECTIVE SERVICE LAW 13 (SPECIAL MONOGRAPH
NO. 14, 1950).  THUS, ENFORCEMENT OF THE 1917 ACT RESTED PRINCIPALLY
WITH THE MILITARY, WITH COURT-MARTIAL BEING THE MAIN WEAPON OF
ENFORCEMENT. 

IN PASSING THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT.
885, CONGRESS SPECIFICALLY ENDED THE PRACTICE OF SUBJECTING DELINQUENT
REGISTRANTS TO MILITARY JURISDICTION IMMEDIATELY UPON RECEIPT OF THEIR
ORDERS TO REPORT.  RATHER, SEC. 11 OF THE ACT PROVIDED THAT NO
REGISTRANT SHOULD BE TRIED TO A MILITARY COURT FOR DISOBEYING SELECTIVE
SERVICE LAWS UNTIL HE HAD BEEN ACTUALLY INDUCTED, VESTING CRIMINAL
JURISDICTION UNTIL SUCH TIME IN THE UNITED STATES DISTRICT COURTS. 

NO MENTION WAS MADE IN THE 1940 ACT OF "DELINQUENCY" OR
"DELINQUENTS."  THESE TERMS WERE FIRST INTRODUCED BY THE SELECTIVE
SERVICE REGULATIONS ISSUED UNDER THE ACT, 32 CFR, C. VI (SUPP. 1940),
WHICH PRESCRIBED VARIOUS DUTIES FOR REGISTRANTS AND DEFINED A
"DELINQUENT" AS ONE WHO FAILED TO PERFORM THEM: 

"A 'DELINQUENT' IS . . . (B) ANY REGISTRANT WHO PRIOR TO HIS
INDUCTION INTO THE MILITARY SERVICE FAILS TO PERFORM AT THE REQUIRED
TIME, OR WITHIN THE ALLOWED PERIOD OF GIVEN TIME, ANY DUTY IMPOSED UPON
HIM BY THE SELECTIVE SERVICE LAW, AND DIRECTIONS GIVEN PURSUANT
THERETO, AND HAS NO VALID REASON FOR HAVING FAILED TO PERFORM THAT
DUTY."  32 CFR 601.106 (SUPP. 1940). 

FURTHERMORE, THE REGULATIONS PROVIDED DEFINITE PROCEDURES FOR
PROCESSING DELINQUENTS:  AFTER GIVING THEM NOTICE OF THEIR SUSPECTED
DELINQUENCY, 32 CFR 603.389 (SUPP. 1940), AND AFTER INVESTIGATING THOSE
SUSPECTED CHARGES, 32 CFR 603.390 (SUPP. 1940), THE SELECTIVE SERVICE
SYSTEM PROVIDED FOR TWO POSSIBLE DISPOSITIONS: 

ON THE ONE HAND-- 

"IF THE LOCAL BOARD IS CONVINCED THAT A DELINQUENT IS NOT INNOCENT
OF WRONGFUL INTENT, OR IF A SUSPECTED DELINQUENT DOES NOT REPORT TO THE
BOARD WITHIN 5 DAYS AFTER THE MAILING OF THE NOTICE OF DELINQUENCY . .
. , THE BOARD SHOULD REPORT HIM TO A UNITED STATES DISTRICT ATTORNEY
FOR PROSECUTION UNDER SECTION 11 OF THE SELECTIVE SERVICE ACT."  32 CFR
603.391(A) (SUPP. 1940). 

ON THE OTHER HAND-- 

"IF THE BOARD FINDS THAT THE SUSPECTED DELINQUENT IS INNOCENT OF ANY
WRONGFUL INTENT, THE BOARD SHALL PROCEED WITH HIM JUST AS IF HE WERE
NEVER SUSPECTED OF BEING A DELINQUENT."  32 CFR 603.390(A) (SUPP.
1940). 

THE FEBRUARY 1942 AMENDMENTS TO THE REGULATIONS ADDED A PROVISION BY
WHICH LOCAL BOARDS WOULD ADVISE THE UNITED STATES ATTORNEY IN THE
EXERCISE OF HIS DISCRETION NOT TO PROSECUTE THOSE WHO HAD VIOLATED THE
SELECTIVE SERVICE LAWS: 

"IF IT IS DETERMINED THAT THE DELINQUENCY IS NOT WILFUL, OR THAT
SUBSTANTIAL JUSTICE WILL RESULT, THE LOCAL BOARD SHOULD ENCOURAGE THE
DELINQUENT TO COMPLY WITH HIS OBLIGATIONS UNDER THE LAW AND, IF HE DOES
SO OR OFFERS TO DO SO, SHOULD URGE THAT ANY CHARGE OF DELINQUENCY
AGAINST HIM OR ANY PROSECUTION OF HIM FOR DELINQUENCY BE DROPPED."  32
CFR 642.5 (CUM. SUPP. 1938-1943). 

THE PROCESS WAS CALLED THE "ENFORCEMENT PROCEDURE OF EDUCATION AND
PERSUATION."  SELECTIVE SERVICE SYSTEM, ENFORCEMENT OF THE SELECTIVE
SERVICE LAW, SUPRA, AT 1-3. 

"THE FIRST STEPS OF THE BOARD WERE TO TRY EDUCATING AND PERSUADING
(THE DELINQUENT) TO COMPLY, BUT IF SUCH FAILED HIS CASE WAS REFERRED TO
THE UNITED STATES ATTORNEY FOR FURTHER EDUCATION AND PERSUASION OR IF
SUCH ALSO FAILED, FOR PROSECUTION."  SELECTIVE SERVICE SYSTEM,
ORGANIZATION AND ADMINISTRATION OF THE SYSTEM 241 (SPECIAL MONOGRAPH
NO. 3, 1951). 

IF IT WAS DETERMINED THAT THE DELINQUENCY WAS "WILFUL" OR THAT FOR
ANY REASON THE UNITED STATES ATTORNEY SHOULD NOT EXERCISE HIS
DISCRETION NOT TO PROSECUTE, THE REGISTRANT WAS GIVEN AN OPPORTUNITY TO
AVOID PROSECUTION BY "VOLUNTEERING" FOR INDUCTION. 

"(THE REGISTRANT COULD VOLUNTEER FOR INDUCTION FROM ANY
CLASSIFICATION, NOT JUST I-A, ANY TIME HE SO DESIRED, AND IF HE WAS A
DELINQUENT UNDER PROSECUTION SUCH VOLUNTEERING WAS OFTEN ALLOWED FROM
ANY STAGE OF THE PROCEEDINGS."  IBID. 

THIS PROCEDURE MADE IT POSSIBLE FOR THE BOARDS TO SIPHON INTO
MILITARY SERVICE SOME DELINQUENTS WHO MIGHT OTHERWISE HAVE TRAVELED TO
JAIL: 

"SINCE THE PURPOSE OF THE (SELECTIVE SERVICE) LAW IS TO PROVIDE MEN
FOR.THE MILITARY ESTABLISHMENT RATHER THAN FOR THE PENITENTIARIES, IT
WOULD SEEM THAT WHEN A REGISTRANT IS WILLING TO BE INDUCTED, HE SHOULD
NOT BE PROSECUTED FOR MINOR OFFENSES COMMITTED DURING HIS PROCESSING." 
SELECTIVE SERVICE SYSTEM, LEGAL ASPECTS OF SELECTIVE SERVICE 47 (REV.
1969). 

IN NOVEMBER 1943, A NEW AND SUBSTANTIALLY DIFFERENT SET OF
REGULATIONS WAS ISSUED.  THESE REGULATIONS DID NOT RELY UPON A
DELINQUENT'S "VOLUNTEERING" FOR INDUCTION; INSTEAD THEY PROVIDED FOR
RECLASSIFICATION OR DEFERRED OR EXEMPTED DELINQUENTS INTO CLASSES
AVAILABLE FOR SERVICE, 32 CFR 642.12(A) (SUPP. 1943), AND PROVIDED FOR
THEIR PRIORITY INDUCTION WITHOUT REGARD TO THE ORDER OF CALL
ESTABLISHED ELSEWHERE IN THE REGULATIONS, 32 CFR 642.13(A) (SUPP.
1943).     A DEFERRED OR EXEMPTED REGISTRANT WHO WAS RECLASSIFIED INTO
A CLASS AVAILABLE FOR SERVICE WAS ACCORDED THE PROCEDURAL RIGHTS OF
PERSONAL APPEARANCE AND APPEAL TO WHICH HE WOULD OTHERWISE HAVE BEEN
ENTITLED.  32 CFR 642.14(A) (SUPP. 1943).  IN THE CASE OF A REGISTRANT
WHO WAS NOT RECLASSIFIED AS A RESULT OF HIS DELINQUENCY, THE LOCAL
BOARD COULD "REOPEN" THE CLASSIFICATION AND ACCORD RIGHTS OF PERSONAL
APPEARANCE AND APPEAL "AT ANY TIME BEFORE INDUCTION."  32 CFR 642.14(B)
(SUPP. 1943).  IF THE LOCAL BOARD DETERMINED THAT THE REGISTRANT
"KNOWINGLY BECAME A DELINQUENT," HOWEVER, IT WAS DIRECTED TO DECLINE TO
REOPEN THE REGISTRANT'S CLASSIFICATION.  IBID.     WITH RESPECT TO
THOSE REGISTRANTS WHO WERE GIVEN APPEAL RIGHTS UNDER SEC. 642.14, THE
APPEAL BOARD WOULD DETERMINE IF THEY HAD "KNOWINGLY"  BECOME
DELINQUENTS.  IF THEY HAD, THEY WERE TO BE RETAINED IN A CLASS
AVAILABLE FOR SERVICE.  IF THEY HAD NOT, THEY WERE TO BE "CLASSIFIED ON
APPEAL IN THE USUAL MANNER" AND THEIR STATUS AS DELINQUENTS WAS TO BE
"DISREGARDED."  32 CFR 642.14(C) (SUPP. 1943). 

THE PURPOSE OF THESE REGULATIONS WAS "TO PREVENT DELAY IN THE
INDUCTION OF APPREHENDED DELINQUENT REGISTRANTS."  SELECTIVE SERVICE
SYSTEM, ENFORCEMENT OF THE SELECTIVE SERVICE LAW, SUPRA, AT 56.  MORE
IMPORTANT, THE SERVICE RECOGNIZED THAT THE PROCEDURE HAD LITTLE TO DO
WITH THE STATUTORY EXEMPTIONS DELINEATED BY CONGRESS BUT, RATHER, WAS
PUNITIVE IN NATURE: 

"(THE SELECTIVE SERVICE REGULATIONS CONCERNING DELINQUENTS . . .
WERE AMENDED AGAIN ON NOVEMBER 1, 1943.  . . . THE PURPOSES OF THESE
CHANGES WERE . . . TO PROVIDE FOR THE ADMINISTRATIVE PENALTY TO A
DELINQUENT OF PROMPT CLASSIFICATION INTO CLASSES I-A, I-A-O OR IV-E AS
AVAILABLE FOR SERVICE.  IN ADDITION TO THE EXISTING CRIMINAL
SANCTION."  (IBID.) 

THE REGULATION OF NOVEMBER 1, 1943, PURPORTEDLY DREW ITS AUTHORITY
FROM SEC. 3 OF THE 1940 ACT, 54 STAT. 885.  NOTHING IN THAT SECTION,
HOWEVER, GIVES THE SERVICE POWERS OF PUNITIVE RECLASSIFICATION AND
ACCELERATED INDUCTION.  MOREOVER, TO THE EXTENT THAT SEC. 3 HAS BEEN SO
CONSTRUED, IT WOULD CONFLICT WITH THE SPIRIT OF SEC. 4(A): 

"THE SELECTION OF MEN FOR TRAINING AND SERVICE UNDER SECTION 3 . . .
SHALL BE MADE IN AN IMPARTIAL MANNER, UNDER SUCH RULES AND REGULATIONS
AS THE PRESIDENT MAY PRESCRIBE, FROM THE MEN WHO ARE LIABLE FOR SUCH
TRAINING AND SERVICE AND WHO AT THE TIME OF SELECTION ARE REGISTERED
AND CLASSIFIED BUT NOT DEFERRED OR EXEMPTED."  54 STAT. 887. 

THE DELINQUENCY PROVISIONS UNDER THE 1940 ACT EXPIRED ON MARCH 31,
1947.  THE PROVISIONS ISSUED UNDER THE 1948 ACT ARE DISCUSSED IN THE
TEXT, SUPRA. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION WITH THE FOLLOWING OBSERVATIONS.  FIRST,
AS I SEE IT, NOTHING IN THE COURT'S OPINION PREVENTS A SELECTIVE
SERVICE BOARD, UNDER THE PRESENT STATUTE AND EXISTING REGULATIONS, FROM
CLASSIFYING AS I-A A REGISTRANT WHO FAILS TO PROVIDE HIS BOARD WITH
INFORMATION ESSENTIAL TO THE DETERMINATION OF WHETHER HE QUALIFIES FOR
A REQUESTED EXEMPTION OR DEFERMENT.  SECTION 1622.10 OF 32 CFR PROVIDES
THAT:  "IN CLASS I-A SHALL BE PLACED EVERY REGISTRANT WHO HAS FAILED TO
ESTABLISH TO THE SATISFACTION OF THE LOCAL BOARD, SUBJECT TO APPEAL
HEREINAFTER PROVIDED, THAT HE IS ELIGIBLE FOR CLASSIFICATION IN ANOTHER
CLASS."  I ASSUME, OF COURSE, THAT UNDER THIS REGULATION A BOARD HAS NO
AUTHORITY TO KEEP A REGISTRANT CLASSIFIED I-A ONCE IT HAS INFORMATION
THAT JUSTIFIES SOME LOWER CLASSIFICATION. 

SECONDLY, I THINK IT ENTIRELY POSSIBLE THAT CONSISTENTLY WITH OUR
OPINION TODAY THE PRESIDENT MIGHT PROMULGATE NEW REGULATIONS,
RESTRICTED IN APPLICATION TO CASES IN WHICH A REGISTRANT FAILS TO
COMPLY WITH A DUTY ESSENTIAL TO THE CLASSIFICATION PROCESS ITSELF, THAT
PROVIDE FOR ACCELERATED INDUCTION UNDER THE EXISTING STATUTE.  HOWEVER,
IN ORDER TO AVOID THOSE PUNITIVE FEATURES NOW FOUND TO BE UNAUTHORIZED
UNDER EXISTING LEGISLATION, ANY NEW REGULATIONS WOULD HAVE TO GIVE TO A
REGISTRANT BEING SUBJECTED TO ACCELERATED INDUCTION THE RIGHT (LIKE A
PERSON HELD IN CIVIL CONTEMPT) TO AVOID ANY SANCTION BY FUTURE
COMPLIANCE.  IN OTHER WORDS, WHILE EXISTING LEGISLATION DOES NOT
AUTHORIZE THE USE OF ACCELERATED INDUCTION TO PUNISH PAST
TRANSGRESSIONS, IT MAY WELL AUTHORIZE ACCELERATION TO ENCOURAGE A
REGISTRANT TO BRING HIMSELF INTO COMPLIANCE WITH RULES ESSENTIAL TO THE
OPERATION OF THE CLASSIFICATION PROCESS. 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT. 

I DO NOT REACH THE QUESTION WHETHER CONGRESS HAS AUTHORIZED THE
DELINQUENCY REGULATIONS, BECAUSE EVEN UNDER THE REGULATIONS THE
PETITIONER'S CONVICTION CANNOT STAND.  AFTER THE PETITIONER'S LOCAL
BOARD DECLARED HIM DELINQUENT, HE HAD 30 DAYS AS A MATTER OF RIGHT TO
SEEK A PERSONAL APPEARANCE BEFORE THE BOARD AND TO TAKE AN APPEAL FROM
ITS RULING.  YET THE BOARD GAVE HIM NO CHANCE TO ASSERT EITHER OF THOSE
RIGHTS.  INSTEAD, IT ORDERED HIM TO REPORT FOR INDUCTION ONLY FIVE DAYS
AFTER IT HAD MAILED HIM A NOTICE OF THE DELINQUENCY DECLARATION. 

THE LOCAL BOARD THUS VIOLATED THE VERY REGULATIONS IT PURPORTED TO
ENFORCE.  THOSE PROVISIONS SEEK TO INDUCE SELECTIVE SERVICE REGISTRANTS
TO SATISFY THEIR LEGAL OBLIGATIONS BY PRESENTING THEM WITH THE
ALTERNATIVE PROSPECT OF INDUCTION INTO THE ARMED FORCES.  THE PERSONAL
APPEARANCE AND APPEAL ARE CRITICAL STAGES IN THE DELINQUENCY PROCESS. 
THEY ENABLE THE REGISTRANT DECLARED DELINQUENT BY HIS LOCAL BOARD TO
CONTEST THE FACTUAL PREMISES ON WHICH THE DELINQUENCY DECLARATION
RESTS, TO CORRECT HIS OVERSIGHT IF THE BREACH OF DUTY HAS ARISEN MERELY
FROM NEGLECT, OR TO PURGE HIMSELF OF HIS DELINQUENCY IF HIS VIOLATION
HAS BEEN WILFUL.  IN ANY EVENT, THE REGULATORY OBJECTIVE IS REMEDIAL. 
THE BOARD'S AUTHORITY TO RECLASSIFY A REGISTRANT BASED ON HIS
DELINQUENCY AND TO ACCELERATE HIS INDUCTION IS ANALOGOUS TO THE AGE-OLD
POWER OF THE COURTS TO PRONOUNCE JUDGMENTS OF CIVIL CONTEMPT.  IN EACH
CASE THE SUBJECT OF THE ORDER CARRIES "THE KEYS . . . IN (HIS) OWN
POCKET" TO THE TERMINATION OF THE ORDER'S EFFECT.  /1/ 

THE GOVERNMENT HAS ADVANCED THE CIVIL-CONTEMPT ANALOGY, NOT ONLY IN
THIS CASE, BUT ALSO IN OTHERS BEFORE THE COURT BOTH THIS TERM AND
LAST.  /2/  SUCH AN INTERPRETATION OF THE DELINQUENCY REGULATIONS
COMPORTS WITH THE VIEW OF THE AGENCY CHARGED WITH THEIR ADMINISTRATION-
THAT THEIR PURPOSE IS TO PROVIDE YOUNG MEN FOR THE ARMED SERVICES, NOT
THE PENITENTIARIES.  /3/  IT COMPORTS, AS WELL, WITH THE REGULATORY
SCHEME ITSELF, UNDER WHICH THE LOCAL BOARD MAY REOPEN ITS
CLASSIFICATION OF A DELINQUENT REGISTRANT WITHOUT REGARD TO THE USUAL
RESTRICTIONS AGAINST SUCH ACTION, /4/ AND REMOVE THE REGISTRANT FROM
DELINQUENCY STATUS AT ANY TIME, EVEN AFTER IT HAS ORDERED HIM TO REPORT
FOR INDUCTION.  /5/ 

ACCORDINGLY, EVEN THOUGH THE REGULATIONS SEEM TO SAY THAT SUCH
REOPENING AND REMOVAL LIE WITHIN THE DISCRETION OF THE LOCAL BOARD, /6/
THE GOVERNMENT AGREES THAT THE BOARD WOULD ABUSE ITS DISCRETION IF IT
REFUSED SUCH REMEDIAL RELIEF TO A REGISTRANT WHO BREACHED HIS DUTY
INADVERTENTLY OR CARELESSLY, OR WHO SOUGHT TO CORRECT THE BREACH, EVEN
IF ORIGINALLY WILFUL, AND TO RETURN TO COMPLIANCE WITH HIS
OBLIGATIONS.  /7/  BUT THE GOVERNMENT ARGUES THAT IN THIS CASE THE
PETITIONER CANNOT AVAIL HIMSELF OF THESE PROVISIONS IN THE DELINQUENCY
REGULATIONS, BECAUSE HE MADE NO EFFORT TO CORRECT HIS DELINQUENCY.  THE
FACT IS THAT THE PETITIONER'S LOCAL BOARD NEVER GAVE HIM A CHANCE TO
PURGE HIS DELINQUENCY.  IT DECLARED HIM A DELINQUENT ON DECEMBER 20,
1967, SENT HIM A NOTICE TO THAT EFFECT THE NEXT DAY, AND FIVE DAYS
LATER ORDERED HIM TO REPORT FOR INDUCTION, MORE THAN TWO WEEKS BEFORE
THE EXPIRATION OFTHE PETITIONER'S TIME TO SEEK A PERSONAL APPEARANCE OR
TAKE AN APPEAL.  /8/  IN THESE CIRCUMSTANCES THE PETITIONER'S FAILURE
TO SEEK HIS LOCAL BOARD'S ADVISE ON WHAT HE SHOULD DO, AS SUGGESTED BY
THE DELINQUENCY NOTICE, DOES NOT DETRACT FROM THE FORCE OF HIS ATTACK
UPON THE VALIDITY OF HIS CRIMINAL CONVICTION.  /9/ 

THE GOVERNMENT ALSO ARGUES THAT THE PETITIONER WAS NOT PREJUDICED BY
THE LOCAL BOARD'S DEPARTURE FROM THE PRESCRIBED REGULATORY ROUTINE
BECAUSE WHEN HE WAS DECLARED DELINQUENT HE WAS ALREADY CLASSIFIED I-A.
BUT THE COURT OF APPEALS NOTED THAT THE PETITIONER'S INDUCTION DATE WAS
ADVANCED AS A RESULT OF THE DECLARATION, /10/  AND THE GOVERNMENT
CONCEDES THAT SINCE THE PETITIONER WAS ONLY 20 YEARS OLD AT THE TIME,
IT IS UNLIKELY THAT HE WOULD HAVE BEEN CALLED AT SUCH AN EARLY DATE HAD
HE NOT BEEN DECLARED A DELINQUENT.  THAT THE PETITIONER MIGHT
EVENTUALLY HAVE BEEN CALLED-- BY NO MEANS A CERTAINTY, GIVEN THE
VARIATIONS IN DRAFT CALLS AND THE POSSIBILITY THAT HE MIGHT
SUBSEQUENTLY HAVE QUALIFIED FOR A DEFERMENT OR EXEMPTION-- DOES NOT
MEAN HE CANNOT COMPLAIN THAT HE WAS ORDERED TO REPORT FOR INDUCTION
EARLIER THAN HE SHOULD HAVE BEEN.  /11/ 

FINALLY, IT IS SAID THAT THE PETITIONER HAD NO RIGHT TO A PERSONAL
APPEARANCE BEFORE THE LOCAL BOARD AND AN APPEAL FROM ITS RULING BECAUSE
ITS DELINQUENCY DECLARATION DID NOT ENTAIL HIS REMOVAL INTO CLASS I-A
FROM SOME OTHER CATEGORY.  SINCE THE PETITIONER WAS ALREADY I-A, THE
ARGUMENT RUNS, HIS LOCAL BOARD NEVER "RECLASSIFIED" HIM; IT JUST
SHIFTED HIM FROM A LOWER TO THE HIGHEST CATEGORY WITHIN THE I-A ORDER
OF CALL.  /12/  NEITHER LOGIC NOR POLICY SUPPORTS SUCH A NARROW READING
OF THE REGULATIONS.  SECTION 1642.14 SPECIFICALLY PROVIDES FOR A
PERSONAL APPEARANCE AND APPEAL, NOT ONLY UPON A "RECLASSIFICATION INTO"
I-A, BUT ALSO UPON A "CLASSIFICATION IN" THAT CATEGORY.  /13/  THE
REGULATION THUS COVERS PRECISELY THOSE REGISTRANTS WHO ARE ALREADY
"CLASSIFIED IN" CLASS I-A, AND WHOSE DECLARATION OF DELINQUENCY
AUTOMATICALLY ELEVATES THEM TO THE HEAD OF THE ORDER OF CALL, AS WELL
AS THOSE REGISTRANTS WHO ARE NOT YET IN I-A, AND WHO MUST BE
"RECLASSIFIED INTO" THAT CATEGORY BEFORE THEY CAN BE PUT AT THE TOP OF
THE LIST.  THE REGULATION, RECOGNIZING THAT THE STATUS OF THE
REGISTRANT PRIOR TO HIS BEING DECLARED DELINQUENT AND PLACED AT THE
HEAD OF THE ORDER OF CALL IS IRRELEVANT TO THE DELINQUENCY PROCESS,
ENSURES THAT ALL REGISTRANTS DECLARED DELINQUENT WILL ENJOY THE SAME
RIGHTS OF PERSONAL APPEARANCE AND APPEAL WITHOUT REGARD TO THEIR
PREVIOUS STATUS. 

BECAUSE THE CHALLENGED REGULATIONS AFFORD THE PETITIONER PROCEDURAL
RIGHTS THAT HIS LOCAL BOARD NEVER GAVE HIM A CHANCE TO EXERCISE, I
WOULD REVERSE THE JUDGMENT OF CONVICTION. 

/1/  CF. SHILLITANI V. UNITED STATES, 384 U.S. 364, 368-372; GREEN
V. UNITED STATES, 356 U.S. 165, 197-198 (BLACK, J., DISSENTING);
PENFIELD CO. V. SEC, 330 U.S. 585, 590; UNITED STATES V. UNITED MINE
WORKERS, 330 U.S. 258, 330-332 (BLACK AND DOUGLAS, JJ., CONCURRING IN
PART AND DISSENTING IN PART). 

/2/  THE GOVERNMENT HAS SPELLED OUT THE ANALOGY IN ITS BRIEFS IN
OESTEREICH V. SELECTIVE SERVICE LOCAL BD. NO. 11, 393 U.S. 233; BREEN
V. SELECTIVE SERVICE BOARD, NO. 65, O.T. 1969, AWAITING DECISION;
TROUTMAN V. UNITED STATES, NO. 623, O.T. 1969, CERT. PENDING; AND THE
PRESENT CASE.  SEE ALSO GRIFFITHS, PUNITIVE RECLASSIFICATION OF
REGISTRANTS WHO TURN IN THEIR DRAFT CARDS, 1 SEL.SERV.L.REP.  4001,
4010-4012. 

/3/  SELECTIVE SERVICE SYSTEM, LEGAL ASPECTS OF SELECTIVE SERVICE 47
(REV. 1969). 

/4/  32 CFR 1642.14(B); CF. 32 CFR 1625.2. 

/5/  32 CFR 1642.4(C).  OF SIMILAR IMPORT IS THE BOARD'S AUTHORITY,
BEFORE NOTIFYING THE LOCAL UNITED STATES ATTORNEY THAT A REGISTRANT HAS
FAILED TO REPORT FOR INDUCTION, TO WAIT 30 DAYS IF IT BELIEVES IT MAY
BE ABLE TO LOCATE THE REGISTRANT AND SECURE HIS COMPLIANCE.  32 CFR
1642.41(A). 

THE CIVIL-CONTEMPT INTERPRETATION DRAWS FURTHER SUPPORT FROM THE
HISTORICAL DEVELOPMENT OF THE LAW OF SELECTIVE SERVICE DELINQUENCY.  IN
THE FIRST WORLD WAR, ONE WHO FAILED TO FILL OUT HIS QUESTIONNAIRE WAS
SIMPLY INDUCTED INTO THE MILITARY, AND HIS FAILURE TO REPORT FOR DUTY
LED TO A COURT-MARTIAL FOR DESERTION.  SEE UNITED STATES EX REL.
BERGDOLL V. DRUM, 107 F.2D 897, 899.  BY THE SECOND WORLD WAR, WHEN THE
PRECURSOR OF THE PRESENT DELINQUENCY REGULATIONS FIRST APPEARED, 32 CFR
601.106, 603.389-603.393 (SUPP. 1940), THE LAW PROVIDED COMPLIANCE
PROCEDURES FOR REGISTRANTS WHO OFFERED TO SATISFY THEIR OBLIGATIONS,
EVEN AFTER THEIR BOARDS HAD REFERRED THEIR CASES TO THE UNITED STATES
ATTORNEYS FOR PROSECUTION.  32 CFR 642.5 (CUM. SUPP. 1938-1943). 
HOWEVER, FROM 1943 ON, THE REGULATIONS REQUIRED DENIAL OF REOPENINGS
FOR KNOWINGLY DELINQUENT REGISTRANTS.  32 CFR 642.14(B) (SUPP. 1943). 
UNDER THE PRESENT REGULATIONS EVEN A REGISTRANT WHOSE DELINQUENCY IS
WILFUL MAY REDEEM HIMSELF BEFORE HIS LOCAL BOARD.  SURELY THIS
HISTORICAL PROGRESSION DEMONSTRATES THAT WHATEVER MAY HAVE BEEN THE
PUNITIVE NATURE OF THE DRAFT LAW'S INITIAL RESPONSE TO THE DELINQUENCY
PROBLEM, ITS PRESENT CHARACTER IS REMEDIAL:  RECALCITRANT REGISTRANTS
ARE HANDLED IN CIVILIAN RATHER THAN MILITARY PROCEEDINGS, AND RECEIVE
AN OPPORTUNITY TO RECANT EVEN WHERE THEIR DERELICTION HAS BEEN
DELIBERATE. 

SUCH AN UNDERSTANDING OF THE DELINQUENCY REGULATIONS UNDERLIES
RECENT DECISIONS IN THE FEDERAL COURTS, E.G., WILLS V. UNITED STATES,
384 F.2D 943, 945-946, CERT. DENIED, 392 U.S. 908; UNITED STATES V.
BRUINIER, 293 F.SUPP.  666, INCLUDING THOSE UPHOLDING THE
CONSTITUTIONALITY OF THE REGULATIONS, E.G., ANDERSON V. HERSHEY, 410
F.2D 492, 495-496 N. 10, 498 NN. 15-16, 499, NO. 449, CERT. PENDING;
CF. UNITED STATES V. BRANIGAN, 299 F.SUPP.  225, 236-237; BUT SEE
UNITED STATES V. EISDORFER, 299 F.SUPP.  975, 984-989, APP. DOCKETED,
NO. 330, O.T. 1969. 

/6/  SEE 32 CFR 1642.4(C), 1642.14(B). 

/7/  THE GOVERNMENT QUALIFIES ITS INTERPRETATION BY IMPLYING THAT A
LOCAL BOARD MIGHT NOT ABUSE ITS DISCRETION IN REFUSING REMOVAL IN THE
CASE OF A REGISTRANT WHO SOUGHT IN GOOD FAITH TO CORRECT HIS BREACH OF
DUTY AFTER THE BOARD HAD ISSUED ITS ORDER TO REPORT FOR INDUCTION.  BUT
THAT LIMITATION HAS NO APPLICATION IN THE PRESENT CASE, WHERE THE LOCAL
BOARD IMPROPERLY ISSUED THE ORDER TO REPORT BEFORE THE PETITIONER HAD A
CHANCE TO BRING HIMSELF INTO COMPLIANCE.  IN TROUTMAN V. UNITED STATES,
SUPRA, WHERE THE SOLICITOR GENERAL HAS CONCEDED THAT THE LOCAL BOARD
ERRED IN REFUSING TO REMOVE THE PETITIONER'S DELINQUENCY AFTER HE
SOUGHT TO BRING HIMSELF INTO COMPLIANCE WITH HIS SELECTIVE SERVICE
DUTIES, NEARLY SIX MONTHS INTERVENED BETWEEN THE BOARD'S DECLARATION OF
DELINQUENCY THAT THE PETITIONER SOUGHT TO CURE AND ITS ORDER TO REPORT
FOR INDUCTION THAT GAVE RISE TO THE PROSECUTION FOR FAILURE TO SUBMIT
TO INDUCTION.     /8/  32 CFR 1642.14, 1624.1(A), 1624.2(D),
1626.2(C)(1).   /9/  CF. MCKART V. UNITED STATES, 395 U.S. 185, 197. 

/10/  406 F.2D 494, 496. 

/11/  UNITED STATES V. BAKER, 416 F.2D 202, 204-205; YATES V. UNITED
STATES, 404 F.2D 462, 465-466, REHEARING DENIED, 407 F.2D 60, CERT.
DENIED, 395 U.S. 925; UNITED STATES V. SMITH, 291 F.SUPP.  63, 67-68;
UNITED STATES V. LYBRAND, 279 F.SUPP.  74, 77-83. 

/12/  SEE 32 CFR 1631.7(A). 

/13/  CF. 32 CFR 1642.12, 1642.13. 

MICHAEL E. TIGAR ARGUED THE CAUSE FOR PETITIONER PRO HAC VICE.  WITH
HIM ON THE BRIEFS WERE MELVIN L. WULF AND CHESTER BRUVOLD. 

ASSISTANT ATTORNEY GENERAL RUCKELSHAUS ARGUED THE CAUSE FOR THE
UNITED STATES.  WITH HIM ON THE BRIEF WERE ATTORNEY GENERAL MITCHELL,
ASSISTANT ATTORNEY GENERAL WILSON, AND PHILIP R. MONAHAN. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY GEORGE SOLL AND
JOSEPH B. ROBISON FOR THE AMERICAN JEWISH CONGRESS, AND BY MARVIN M.
KARPATKIN, MICHAEL N. POLLET, AND E. CURRY FIRST FOR THE CENTRAL
COMMITTEE FOR CONSCIENTIOUS OBJECTORS. 
..END :









CARTER V. JURY COMMISSION, 396 U.S. 320 


       CARTER ET AL. V. JURY COMMISSION OF GREENE COUNTY ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ALABAMA

 NO. 30.  ARGUED OCTOBER 21, 1969-- DECIDED JANUARY 19, 1970 


APPELLANTS, NEGRO CITIZENS OF GREEN COUNTY, ALABAMA, WHO ALLEGED THAT
THEY WERE QUALIFIED TO SERVE AS JURORS AND DESIRED TO SERVE, BUT HAD
NEVER BEEN SUMMONED, BROUGHT THIS ACTION SEEKING (1) A DECLARATION THAT
QUALIFIED NEGROES WERE SYSTEMATICALLY EXCLUDED FROM GREENE COUNTY GRAND
AND PETIT JURIES, THAT THE ALABAMA JURY-SELECTION STATUTES WERE
UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED, AND THAT THE JURY
COMMISSION WAS A DELIBERATELY SEGREGATED AGENCY; (2) A PERMANENT
INJUNCTION FORBIDDING THE SYSTEMATIC EXCLUSION OF NEGROES AND REQUIRING
THAT ALL ELIGIBLE NEGROES BE PLACED ON THE JURY ROLL; AND (3) AN ORDER
VACATING THE JURY COMMISSIONERS' APPOINTMENTS AND COMPELLING THE
GOVERNOR TO SELECT NEW MEMBERS WITHOUT RACIAL DISCRIMINATION.  THE
THREE-JUDGE DISTRICT COURT FOUND THAT ALTHOUGH THE 1960 CENSUS SHOWED
THAT THREE-FOURTHS OF THE COUNTY'S POPULATION WERE NEGROES, THE LARGEST
NUMBER OF NEGROES ON THE JURY LIST FROM 1961 TO 1963 WAS ABOUT 7% OF
THE TOTAL.  FOLLOWING A 1964 DECLARATORY JUDGMENT DECREE AND A 1967
STATUTORY AMENDMENT ADDING WOMEN TO THE LIST, THE PERCENTAGE OF NEGROES
ON THE JURY ROLL INCREASED TO 32%, BUT THE 1967 COUNTY POPULATION WAS
ABOUT 65% NEGRO.  THE JURY COMMISSIONERS APPOINTED BY THE GOVERNOR FOR
THE PAST 12 YEARS WERE WHITE.  THE DISTRICT COURT FOUND AN "INVALID
EXCLUSION OF NEGROES ON A RACIALLY DISCRIMINATORY BASIS," AND DIRECTED
THE JURY COMMISSIONERS AND THEIR CLERK "TO TAKE PROMPT ACTION TO
COMPILE A JURY LIST . . . IN ACCORDANCE WITH THE LAWS OF ALABAMA AND .
. . CONSTITUTIONAL PRINCIPLES," AND TO SUBMIT A COMPLIANCE REPORT.  THE
COURT DECLINED TO ENJOIN THE ENFORCEMENT OF THE CHALLENGED STATUTES OR
TO DIRECT THE GOVERNOR TO APPOINT NEGROES TO THE JURY COMMISSION, AND
IT IS FROM THESE RULINGS THAT APPELLANTS TOOK A DIRECT APPEAL.  HELD: 

1.  THERE IS NO JURISDICTIONAL OR PROCEDURAL BAR TO AN ATTACK UPON
SYSTEMATIC JURY DISCRIMINATION BY WAY OF A CIVIL SUIT SUCH AS THIS. 
PP. 329-330. 

2.  THE PROVISION OF THE ALABAMA CODE (TITLE 30, SEC. 21) REQUIRING
THE JURY COMMISSIONERS TO SELECT FOR JURY SERVICE THOSE PERSONS WHO ARE
"GENERALLY REPUTED TO BE HONEST AND INTELLIGENT . . . AND . . .
ESTEEMED IN THE COMMUNITY FOR THEIR INTEGRITY, GOOD CHARACTER AND SOUND
JUDGMENT . . . " IS NOT UNCONSTITUTIONAL ON ITS FACE.  PP. 331-337. 

(A) THE CONSTITUTION DOES NOT FORBID THE STATES TO ESTABLISH
RELEVANT QUALIFICATIONS FOR JURORS, AND MOST STATES HAVE ENACTED
SIMILAR JUROR REQUIREMENTS.  PP. 332-335. 

(B) ALTHOUGH HERE THE JURY COMMISSIONERS AND THEIR CLERK ABUSED THE
STATUTORY DISCRETION IN THE PREPARATION OF THE JURY ROLL, THAT DOES NOT
MEAN THAT SEC. 21 IS NECESSARILY AND UNDER ALL CIRCUMSTANCES INVALID. 
THE STATUTE WAS "CAPABLE OF BEING CARRIED OUT WITH NO RACIAL
DISCRIMINATION WHATSOEVER."  SMITH V. TEXAS, 311 U.S. 128, 130-131. 
PP. 334-337. 

3.  APART FROM THE PROBLEMS INVOLVED IN A FEDERAL COURT'S ORDERING A
GOVERNOR TO EXERCISE HIS DISCRETION IN A SPECIFIC WAY, IT CANNOT BE
SAID ON THE RECORD HERE THAT THE ABSENCE OF NEGROES FROM THE JURY
COMMISSION AMOUNTED IN ITSELF TO A PRIMA FACIE SHOWING OF
DISCRIMINATORY EXCLUSION.  NOR CAN APPELLATS' PRESENT CONTENTION THAT
THE ABSENCE OF NEGROES FROM THE COMMISSION COMPELLED THE DISTRICT COURT
TO ORDER THE APPOINTMENT OF NEGRO COMMISSIONERS BE UPHELD, AS
APPELLANTS ARE NO MORE ENTITLED TO PROPORTIONAL REPRESENTATION BY RACE
ON THE JURY COMMISSION THAN ON ANY PARTICULAR GRAND OR PETIT JURY.  PP.
337-339. 

4.  THE DISTRICT COURT MUST CONSIDER WHETHER THE NEW JURY ROLL
PREPARED PURSUANT TO ITS ORDER COMPLIES THEREWITH AND WHETHER OTHER AND
FURTHER RELIEF IS APPROPRIATE.  PP. 339-340. 

298 F.SUPP.  181, AFFIRMED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS, NEGRO CITIZENS OF GREENE COUNTY, ALABAMA, COMMENCED
THIS CLASS ACTION AGAINST OFFICIALS CHARGED WITH THE ADMINISTRATION OF
THE STATE'S JURY-SELECTION LAWS:  THE COUNTY JURY COMMISSIONERS AND
THEIR CLERK, THE LOCAL CIRCUIT COURT JUDGE, AND THE GOVERNOR OF
ALABAMA.  THE COMPLAINT ALLEGED THAT THE APPELLANTS WERE FULLY
QUALIFIED TO SERVE AS JURORS AND DESIRED TO SERVE, BUT HAD NEVER BEEN
SUMMONED FOR JURY SERVICE.  IT CHARGED THAT THE APPELLEES HAD EFFECTED
A DISCRIMINATORY EXCLUSION OF NEGROES FROM GRAND AND PETIT JURIES IN
GREENE COUNTY-- THE GOVERNOR IN HIS SELECTION OF THE COUNTY JURY
COMMISSION, AND THE COMMISSIONERS AND JUDGE IN THEIR ARBITRARY
EXCLUSION OF NEGROES.  THE COMPLAINT SOUGHT (1) A DECLARATION THAT
QUALIFIED NEGROES WERE SYSTEMATICALLY EXCLUDED FROM GREENE COUNTY GRAND
AND PETIT JURIES, THAT THE ALABAMA STATUTES GOVERNING JURY SELECTION
WERE UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED, AND THAT THE JURY
COMMISSION WAS A DELIBERATELY SEGREGATED GOVERNMENTAL AGENCY; (2) A
PERMANENT INJUNCTION FORBIDDING THE SYSTEMATIC EXCLUSION OF NEGROES
FROM GREENE COUNTY JURIES PURSUANT TO THE CHALLENGED STATUTES AND
REQUIRING THAT ALL ELIGIBLE NEGROES BE PLACED ON THE JURY ROLL; AND (3)
AN ORDER VACATING THE APPOINTMENTS OF THE JURY COMMISSIONERS AND
COMPELLING THE GOVERNOR TO SELECT NEW MEMBERS WITHOUT RACIAL
DISCRIMINATION. 

ALABAMA'S JURY-SELECTION PROCEDURE IS GOVERNED BY STATUTE.  ALA.
CODE, TIT. 30, SEC. 1 ET SEQ. (1958 AND SUPP. 1967).  THE GOVERNOR
APPOINTS A THREE-MEMBER JURY COMMISSION FOR EACH COUNTY.  SECS. 8-10. 
THE COMMISSION EMPLOYS A CLERK, SEC. 15, WHO IS CHARGED WITH THE DUTY
OF OBTAINING THE NAME OF EVERY CITIZEN OF THE COUNTY OVER 21 AND UNDER
65 YEARS OF AGE, TOGETHER WITH HIS OCCUPATION AND PLACES OF RESIDENCE
AND BUSINESS.  SEC. 18.  THE CLERK MUST "SCAN THE REGISTRATION LISTS,
THE LISTS RETURNED TO THE TAX ASSESSOR, AND CITY DIRECTORIES, TELEPHONE
DIRECTORIES AND ANY AND EVERY OTHER SOURCE OF INFORMATION FROM WHICH HE
MAY OBTAIN INFORMATION . . . . " SEC. 24.  HE MUST ALSO "VISIT EVERY
PRECINCT AT LEAST ONCE A YEAR TO ENABLE THE JURY COMMISSION TO PROPERLY
PERFORM THE DUTIES REQUIRED OF IT . . . . "  IBID.  /1/  ONCE THE CLERK
SUBMITS HIS LIST OF NAMES, THE COMMISSION IS UNDER A DUTY TO PREPARE A
JURY ROLL AND JURY BOX CONTAINING THE NAMES OF ALL QUALIFIED, NONEXEMPT
CITIZENS IN THE COUNTY, SECS. 20, 24, WHO ARE "GENERALLY REPUTED TO BE
HONEST AND INTELLIGENT AND ARE ESTEEMED IN THE COMMUNITY FOR THEIR
INTEGRITY, GOOD CHARACTER AND SOUND JUDGMENT . . . . "  SEC. 21.  /2/ 

A THREE-JUDGE DISTRICT COURT, CONVENED PURSUANT TO 28 U.S.C. 2281
AND 2284, CONDUCTED AN EXTENSIVE EVIDENTIARY HEARING ON THE APPELLANTS'
COMPLAINT.  THE RECORD FULLY SUPPORTS THE TRIAL COURT'S CONCLUSION,
SET OUT IN ITS DETAILED OPINION, THAT THE JURY-SELECTION PROCESS AS IT
ACTUALLY OPERATED IN GREENE COUNTY AT THE OUTSET OF THIS LITIGATION
DEPARTED FROM THE STATUTORY MANDATE IN SEVERAL RESPECTS: 

"THE CLERK DOES NOT OBTAIN THE NAMES OF ALL POTENTIALLY ELIGIBLE
JURORS AS PROVIDED BY SEC. 18, IN FACT WAS NOT AWARE THAT THE STATUTE
DIRECTED THAT THIS BE DONE AND KNEW OF NO WAY IN WHICH SHE COULD DO IT.
THE STARTING POINT EACH YEAR IS LAST YEAR'S ROLL.  EVERYONE THEREON IS
CONSIDERED TO BE QUALIFIED AND REMAINS ON THE ROLL UNLESS HE DIES OR
MOVES AWAY (OR, PRESUMABLY, IS CONVICTED OF A FELONY).  NEW NAMES ARE
ADDED TO THE OLD ROLL.  ALMOST ALL OF THE WORK OF THE COMMISSION IS
DEVOTED TO SECURING NAMES OF PERSONS SUGGESTED FOR CONSIDERATION AS NEW
JURORS.  THE CLERK PERFORMS SOME DUTIES DIRECTED TOWARD SECURING SUCH
NAMES.  THIS IS A PART-TIME TASK, DONE WITHOUT COMPENSATION, IN SPARE
TIME AVAILABLE FROM PERFORMANCE OF HER DUTIES AS CLERK OF THE CIRCUIT
COURT.  SHE USES VOTER LISTS BUT NOT THE TAX ASSESSOR'S LISTS. 
TELEPHONE DIRECTORIES FOR SOME OF THE COMMUNITIES ARE REFERRED TO, CITY
DIRECTORIES NOT AT ALL SINCE GREENE COUNTY IS LARGELY RURAL. 

     "THE CLERK GOES INTO EACH OF THE ELEVEN BEATS OR PRECINCTS

  ANNUALLY, USUALLY ONE TIME.  HER TRIPS OUT INTO THE COUNTY FOR

  THIS PURPOSE NEVER CONSUME A FULL DAY.  AT VARIOUS PLACES IN THE

COUNTY SHE TALKS WITH PERSONS SHE KNOWS AND SECURES SUGGESTED

  NAMES.  SHE IS ACQUAINTED WITH A GOOD MANY NEGROES, BUT VERY FEW

  'OUT IN THE COUNTY.'  SHE DOES NOT KNOW THE REPUTATION OF MOST OF

  THE NEGROES IN THE COUNTY.  BECAUSE OF HER DUTIES AS CLERK OF THE

  CIRCUIT COURT THE NAMES AND REPUTATIONS OF NEGROES MOST FAMILIAR

  TO HER ARE THOSE WHO HAVE BEEN CONVICTED OF CRIME OR HAVE BEEN

  'IN TROUBLE.'  SHE DOES NOT KNOW ANY NEGRO MINISTERS, DOES NOT

  SEEK NAMES FROM ANY NEGRO OR WHITE CHURCHES OR FRATERNAL

  ORGANIZATIONS.  SHE OBTAINS SOME NAMES FROM THE COUNTY'S NEGRO

  DEPUTY SHERIFF. 

     "THE COMMISSION MEMBERS ALSO SECURE SOME NAMES, BUT ON A BASIS

  NO MORE REGULAR OR FORMALIZED THAN THE EFFORTS OF THE CLERK.  THE

  COMMISSIONERS 'ASK AROUND,' EACH USUALLY IN THE AREA OF THE

  COUNTY WHERE HE RESIDES, AND SECURE A FEW NAMES, CHIEFLY FROM

  WHITE PERSONS.  SOME OF THE NAMES ARE OBTAINED FROM PUBLIC

OFFICIALS, SUBSTANTIALLY ALL OF WHOM ARE WHITE. 

     "ONE COMMISSIONER TESTIFIED THAT HE ASKED FOR NAMES AND THAT
IF

 PEOPLE DIDN'T GIVE HIM NAMES HE COULD NOT SUBMIT THEM.  HE

  ACCEPTS PAY FOR ONE DAY'S WORK EACH YEAR, STATING THAT HE DOES

  NOT HAVE A LOT OF TIME TO PUT ON JURY COMMISSION WORK.  . . . HE

  TAKES THE WORD OF THOSE WHO RECOMMEND PEOPLE, CHECKS NO FURTHER

  AND SEES NO NEED TO CHECK FURTHER, CONSIDERING THAT HE IS TO RELY

  ON THE JUDGMENT OF OTHERS.  HE MAKES NO INQUIRY OR DETERMINATION

  WHETHER PERSONS SUGGESTED CAN READ OR WRITE.  . . . NEITHER

  COMMISSIONERS NOR CLERK HAVE ANY SOCIAL CONTACTS WITH NEGROES OR

BELONG TO ANY OF THE SAME ORGANIZATIONS. 

     "THROUGH ITS YEARLY MEETING IN AUGUST, 1966, THE JURY

  COMMISSION MET ONCE EACH YEAR USUALLY FOR ONE DAY, SOMETIMES FOR

  TWO, TO PREPARE A NEW ROLL.  NEW NAMES PRESENTED BY CLERK AND

COMMISSIONERS, AND SOME SENT IN BY LETTER, WERE CONSIDERED.  THE

  CLERK CHECKED THEM AGAINST COURT RECORDS OF FELONY CONVICTIONS. 

  NEW NAMES DECIDED UPON AS ACCEPTABLE WERE ADDED TO THE OLD ROLL. 

  THE NAMES OF THOSE ON THE OLD ROLL WHO HAD DIED OR MOVED AWAY

  WERE REMOVED. 

     "AT THE AUGUST, 1966 MEETING ONE COMMISSIONER WAS NEW AND

SUBMITTED NO NAMES, WHITE OR NEGRO, AND MERELY DID CLERICAL WORK

  AT THE MEETING.  ANOTHER HAD BEEN ILL AND ABLE TO SEEK NAMES

  LITTLE IF AT ALL.  THE THIRD COULD REMEMBER ONE NEGRO NAME THAT

  HE SUGGESTED.  THIS COMMISSIONER BROUGHT THE NAME, OR NAMES, HE

  PROPOSED ON A TRADE BILL HE HAD RECEIVED, AND AFTER SO USING IT

  THREW IT AWAY.  ALL LISTS OF SUGGESTED NAMES WERE DESTROYED.  AS

  A RESULT OF THAT MEETING THE NUMBER OF NEGRO NAMES ON THE JURY

  ROLL INCREASED BY 37.  . . . APPROXIMATELY 32 OF THOSE NAMES CAME

FROM LISTS GIVEN THE CLERK OR COMMISSIONERS BY OTHERS.  THE

  TESTIMONY IS THAT AT THE ONE-DAY AUGUST MEETING THE ENTIRE VOTER

  LIST WAS SCANNED.  IT CONTAINED THE NAMES OF AROUND 2,000

  NEGROES. 

     "THUS IN PRACTICE, THROUGH THE AUGUST, 1966 MEETING THE SYSTEM

  OPERATED EXACTLY IN REVERSE FROM WHAT THE STATE STATUTES

  CONTEMPLATE.  IT PRODUCED A SMALL GROUP OF INDIVIDUALLY SELECTED

  OR RECOMMENDED NAMES FOR CONSIDERATION.  THOSE POTENTIALLY

  QUALIFIED BUT WHOSE NAMES WERE NEVER FOCUSED UPON WERE GIVEN NO

CONSIDERATION.  THOSE WHO PREPARED THE ROLL AND ADMINISTERED THE

  SYSTEM WERE WHITE AND WITH LIMITED MEANS OF CONTACT WITH THE

  NEGRO COMMUNITY.  THOUGH THEY RECOGNIZED THAT THE MOST PERTINENT

  INFORMATION AS TO WHICH NEGROES DO, AND WHICH DO NOT, MEET THE

  STATUTORY QUALIFICATIONS COMES FROM NEGROES THERE WAS NO

  MEANINGFUL PROCEDURE BY WHICH NEGRO NAMES WERE FEDINTOTHE

  MACHINERY FOR CONSIDERATION OF EFFECTUAL MEANS OF COMMUNICATION

  BY WHICH THE KNOWLEDGE POSSESSED BY THE NEGRO COMMUNITY WAS

  UTILIZED.  IN PRACTICE MOST OF THE WORK OF THE COMMISSION HAS

  BEEN DEVOTED TO THE FUNCTION OF SECURING NAMES TO BE CONSIDERED. 

  ONCE A NAME HAS COME UP FOR CONSIDERATION IT USUALLY HAS BEEN

  ADDED TO THE ROLLS UNLESS THAT PERSON HAS BEEN CONVICTED OF A

  FELONY.  THE FUNCTION OF APPLYING THE STATUTORY CRITERIA HAS BEEN

  CARRIED OUT ONLY IN PART, OR BY ACCEPTING AS CONCLUSIVE THE

  JUDGMENT OF OTHERS, AND FOR SOME CRITERIA NOT AT ALL."  /3/ 

THE DISTRICT COURT'S FURTHER FINDINGS DEMONSTRATED THE IMPACT OF THE
SELECTION PROCESS ON THE RACIAL COMPOSITION OF GREENE COUNTY JURIES. 
ACCORDING TO THE 1960 CENSUS, NEGROES COMPOSED THREE-FOURTHS OF THE
COUNTY'S POPULATION.  YET FROM 1961 TO 1963 THE LARGEST NUMBER OF
NEGROES EVER TO APPEAR ON THE JURY LIST WAS ABOUT 7% OF THE TOTAL.  THE
COURT NOTED THAT IN 1964 A SINGLE-JUDGE FEDERAL DISTRICT COURT HAD
ENTERED A DECLARATORY JUDGMENT SETTING FORTH THE DUTIES OF THE JURY
COMMISSIONERS AND THEIR CLERK UNDER ALABAMA LAW, INSTRUCTING THEM NOT
TO PURSUE A COURSE OF CONDUCT OPERATING TO DISCRIMINATE AGAINST
NEGROES, FORBIDDING THEM TO EMPLOY NUMERICAL OR PROPORTIONAL
LIMITATIONS WITH RESPECT TO RACE, AND DIRECTING AN EXAMINATION OF THE
JURY ROLL FOR COMPLIANCE WITH THE JUDGMENT.  /4/  THEREAFTER, THE
SITUATION HAD IMPROVED ONLY MARGINALLY.  IN 1966 ONLY 82 NEGROES
APPEARED AMONG THE 471 CITIZENS LISTED ON THE JURY ROLL; 50% OF THE
WHITE MALE POPULATION OF THE COUNTY FOUND ITS WAY TO THE JURY ROLL IN
THAT YEAR, BUT ONLY 4% OF THE NEGRO.  /5/  IN 1967, FOLLOWING A
STATUTORY AMENDMENT, THE COMMISSION ADDED WOMEN TO THE JURY ROLL.  UPON
THE EXPANSION OF THE LIST NEGROES COMPOSED 388 OF THE 1,198 POTENTIAL
JURORS-- STILL ONLY 32% OF THE TOTAL, EVEN THOUGH THE 1967 POPULATION
OF THE COUNTY WAS ESTIMATED TO BE ABOUT 65% NEGRO.  /6/ 

THE DISTRICT COURT FOUND THAT "THERE IS INVALID EXCLUSION OF NEGROES
ON A RACIALLY DISCRIMINATORY BASIS."  IT ENJOINED THE JURY
COMMISSIONERS AND THEIR CLERK FROM SYSTEMATICALLY EXCLUDING NEGROES
FROM THE JURY ROLL, AND DIRECTED THEM "TO TAKE PROMPT ACTION TO COMPILE
A JURY LIST . . . IN ACCORDANCE WITH THE LAWS OF ALABAMA AND . . .
CONSTITUTIONAL PRINCIPLES"; TO FILE A JURY LIST SO COMPILED WITHIN 60
DAYS, SHOWING THE INFORMATION REQUIRED BY ALABAMA LAW FOR EACH
POTENTIAL JUROR, TOGETHER WITH HIS RACE AND, IF AVAILABLE, HIS AGE; AND
TO SUBMIT A REPORT SETTING FORTH THE PROCEDURE BY WHICH THE COMMISSION
HAD COMPILED THE LIST AND APPLIED THE STATUTORY QUALIFICATIONS AND
EXCLUSIONS. 

THE COURT DECLINED, HOWEVER, EITHER TO ENJOIN THE ENFORCEMENT OF THE
CHALLENGED ALABAMA STATUTORY PROVISIONS OR TO DIRECT THE GOVERNOR TO
APPOINT NEGROES TO THE JURY COMMISSION.  FROM THESE RULINGS THE
APPELLANTS TOOK ADIRECTAPPEAL TO THIS COURT PURSUANT TO 28 U.S.C.
1253.  WE NOTED PROBABLE JURISDICTION.  393 U.S. 1115.  /7/

        I 

THIS IS THE FIRST CASE TO REACH THE COURT IN WHICH AN ATTACK UPON
ALLEGED RACIAL DISCRIMINATION IN CHOOSING JURIES HAS BEEN MADE BY
PLAINTIFFS SEEKING AFFIRMATIVE RELIEF, RATHER THAN BY DEFENDANTS
CHALLENGING JUDGMENTS OF CRIMINAL CONVICTION ON THE GROUND OF
SYSTEMATIC EXCLUSION OF NEGROES FROM THE GRAND JURIES THAT INDICTED
THEM, /8/  THE TRIAL JURIES THAT FOUND THEM GUILTY, /9/  OR BOTH.  /10/
THE DISTRICT COURT FOUND NO BARRIER TO SUCH A SUIT, AND NEITHER DO WE.
DEFENDANTS IN CRIMINAL PROCEEDINGS DO NOT HAVE THE ONLY COGNIZABLE
LEGAL INTEREST IN NONDISCRIMINATORY JURY SELECTION.  PEOPLE EXCLUDED
FROM JURIES BECAUSE OF THEIR RACE ARE AS MUCH AGGRIEVED AS THOSE
INDICTED AND TRIED BY JURIES CHOSEN UNDER A SYSTEM OF RACIAL
EXCLUSION.  /11/  SURELY THERE IS NO JURISDICTIONAL OR PROCEDURAL BAR
TO AN ATTACK UPON SYSTEMATIC JURY DISCRIMINATION BY WAY OF A CIVIL SUIT
SUCH AS THE ONE BROUGHT HERE.  THE FEDERAL CLAIM IS BOTTOMED ON THE
SIMPLE PROPOSITION THAT THE STATE, ACTING THROUGH ITS AGENTS, HAS
REFUSED TO CONSIDER THE APPELLANTS FOR JURY SERVICE SOLELY BECAUSE OF
THEIR RACE.  WHETHER JURY SERVICE BE DEEMED A RIGHT, A PRIVILEGE, OR A
DUTY, THE STATE MAY NO MORE EXTEND IT TO SOME OF ITS CITIZENS AND DENY
IT TO OTHERS ON RACIAL GROUNDS THAN IT MAY INVIDIOUSLY DISCRIMINATE IN
THE OFFERING AND WITHHOLDING OF THE ELECTIVE FRANCHISE.  /12/  ONCE THE
STATE CHOOSES TO PROVIDE GRAND AND PETIT JURIES, WHETHER OR NOT
CONSTITUTIONALLY REQUIRED TO DO SO, /13/  IT MUST HEW TO FEDERAL
CONSTITUTIONAL CRITERIA IN ENSURING THAT THE SELECTION OF MEMBERSHIP IS
FREE OF RACIAL BIAS.  /14/  THE EXCLUSION OF NEGROES FROM JURY SERVICE
BECAUSE OF THEIR RACE IS "PRACTICALLY A BRAND UPON THEM . . . , AN
ASSERTION OF THEIR INFERIORITY . . . . "  /15/  THAT KIND OF
DISCRIMINATION CONTRAVENES THE VERY IDEA OF A JURY-- "A BODY TRULY
REPRESENTATIVE OF THE COMMUNITY,"  /16/  COMPOSED OF "THE PEERS OR
EQUALS OF THE PERSON WHOSE RIGHTS IT IS SELECTED OR SUMMONED TO
DETERMINE; THAT IS, OF HIS NEIGHBORS, FELLOWS, ASSOCIATES, PERSONS
HAVING THE SAME LEGAL STATUS IN SOCIETY AS THAT WHICH HE HOLDS."  /17/
      II 

ON THE MERITS, THE APPELLANTS ARGUE THAT THE DISTRICTCOURT ERRED IN
REFUSING TO INVALIDATE THE ALABAMA STATUTE REQUIRING THE JURY
COMMISSIONERS TO SELECT FOR JURY SERVICE THOSE PERSONS WHO ARE
"GENERALLY REPUTED TO BE HONEST AND INTELLIGENT AND . . . ESTEEMED IN
THE COMMUNITY FOR THEIR INTEGRITY, GOOD CHARACTER AND SOUND JUDGMENT .
. . . "  ALA. CODE, TIT. 30, SEC. 21 (SUPP. 1967).  THE APPELLANTS SAY
SEC. 21 IS UNCONSTITUTIONAL ON ITS FACE BECAUSE, BY LEAVING ALABAMA'S
JURY OFFICIALS AT LARGE IN THEIR SELECTION OF POTENTIAL JURORS, IT
PROVIDES THEM AN OPPORTUNITY TO DISCRIMINATE ON THE BASIS OF RACE-- AN
OPPORTUNITY OF WHICH THEY HAVE IN FACT TAKEN ADVANTAGE.  /18/
SPECIFICALLY, THE CHARGE IS THAT SEC. 21 LEAVES THE COMMISSIONERS FREE
TO GIVE EFFECT TOTHEIR BELIEF THAT NEGROES ARE GENERALLY INFERIOR TO
WHITE PEOPLE AND SO LESS LIKELY TO MEASURE UP TO THE STATUTORY
REQUIREMENTS; /19/  TO THE COMMISSIONERS' FEAR THAT WHITE PEOPLE IN THE
COMMUNITY WILL SUFFER IF NEGROES ARE ACCORDED THE OPPORTUNITY TO
EXERCISE THE POWER OF THEIR MAJORITY; /20/  AND TO THE COMMISSIONERS'
PREFERENCE FOR NEGROES WHO TEND NOT TO ASSERT THEIR RIGHT TO LEGAL AND
SOCIAL EQUALITY.  /21/  THE APPELLANTS SAY THE INJUNCTIVE RELIEF
GRANTED BY THE DISTRICT COURT IS INADEQUATE, BECAUSE THE HISTORY OF
JURY SELECTION IN GREENE COUNTY DEMONSTRATES A PRACTICE OF
DISCRIMINATION PERSISTING DESPITE THE FEDERAL COURT'S PRIOR GRANT OF
DECLARATORY RELIEF.  MOREOVER, SO LONG AS SEC. 21 REMAINS THE LAW, IT
IS ARGUED, NEGRO CITIZENS THROUGHOUT ALABAMA WILL BE OBLIGED TO ATTACK
THE JURY-SELECTION PROCESS ON A COUNTY-BY-COUNTY BASIS, THEREBY
IMPOSING A HEAVY BURDEN ON ALREADY CONGESTED COURT DOCKETSANDDELAYING
THE DAY THAT ALABAMA WILL BE FREE OF DISCRIMINATORY JURY SELECTION. 
/22/ 

WHILE THERE IS FORCE IN WHAT THE APPELLANTS SAY, WE CANNOT AGREE
THAT SEC. 21 IS IRREDEEMABLY INVALID ON ITS FACE.  IT HAS LONG BEEN
ACCEPTED THAT THE CONSTITUTION DOES NOT FORBID THE STATES TO PRESCRIBE
RELEVANT QUALIFICATIONS FOR THEIR JURORS.  /23/  THE STATES REMAIN FREE
TO CONFINE THE SELECTION TO CITIZENS, TO PERSONS MEETING SPECIFIED
QUALIFICATIONS OF AGE AND EDUCATIONAL ATTAINMENT, /24/  AND TO THOSE
POSSESSING GOOD INTELLIGENCE, SOUND JUDGMENT, AND FAIR CHARACTER.  /25/
"OUR DUTY TO PROTECT THE FEDERAL CONSTITUTIONAL RIGHTS OF ALL DOES NOT
MEAN WE MUST OR SHOULD IMPOSE ON STATES OUR CONCEPTION OF THE PROPER
SOURCE OF JURY LISTS, SO LONG AS THE SOURCE REASONABLY REFLECTS A CROSS
THAT CIVIC DUTY."  /26/ 

STATUTORY PROVISIONS SUCH AS THOSE FOUND IN SEC. 21 ARE NOT PECULIAR
TO ALABAMA, OR TO ANY PARTICULAR REGION OF THE COUNTRY.  NEARLY EVERY
STATE REQUIRES THAT ITS JURORS BE CITIZENS OF THE UNITED STATES, /27/
RESIDENTS OF THE LOCALITY, /28/  OF A SPECIFIED MINIMUM AGE, /29/  AND
ABLE TO UNDERSTAND ENGLISH.  /30/  MANY OF THE STATES REQUIRE THAT
JURORS BE OF "GOOD CHARACTER" OR THE LIKE; /31/  SOME, THAT THEY BE
"INTELLIGENT"  /32/ OR "WELL INFORMED."  /33/ 

PROVISIONS OF SIMILAR BREADTH HAVE BEEN CHALLENGED HERE AND
SUSTAINED BEFORE.  IN FRANKLIN V. SOUTH CAROLINA, /34/  THE COURT
REJECTED A SIMILAR ATTACK UPON A JURY-SELECTION STATUTE ALLEGED BY THE
PLAINTIFF IN ERROR TO HAVE CONFERRED ARBITRARY POWER UPON THE JURY
COMMISSIONERS.  THE PERTINENT LAW THERE PROVIDED THAT THE COMMISSIONERS
SHOULD "PREPARE A LIST OF SUCH QUALIFIED ELECTORS UNDER THE PROVISIONS
OF THE CONSTITUTION, BETWEEN THE AGES OF TWENTY-ONE AND SIXTY-FIVE
YEARS, ANDOF GOOD MORAL CHARACTER, OF THEIR RESPECTIVE COUNTIES AS THEY
MAY DEEM OTHERWISE WELL QUALIFIED TO SERVE AS JURORS, BEING PERSONS OF
SOUND JUDGMENT AND FREE FROM ALL LEGAL EXCEPTIONS, WHICH LIST SHALL
INCLUDE NOT LESS THAN ONE FROM EVERY THREE OF SUCH QUALIFIED ELECTORS .
. . . "  IN UPHOLDING THE VALIDITY OF THESE STANDARDS, THE COURT SAID: 

     "WE DO NOT THINK THERE IS ANYTHING IN THIS PROVISION OF THE

  STATUTE HAVING THE EFFECT TO DENY RIGHTS SECURED BY THE FEDERAL

CONSTITUTION.  . . . THERE IS NOTHING IN THIS STATUTE WHICH

 DISCRIMINATES AGAINST INDIVIDUALS ON ACCOUNT OF RACE OR COLOR OR

  PREVIOUS CONDITION, OR WHICH SUBJECTS SUCH PERSONS TO ANY OTHER

  OR DIFFERENT TREATMENT THAN OTHER ELECTORS WHO MAY BE QUALIFIED

  TO SERVE AS JURORS.  THE STATUTE SIMPLY PROVIDES FOR AN EXERCISE

  OF JUDGMENT IN ATTEMPTING TO SECURE COMPETENT JURORS OF PROPER

  QUALIFICATIONS."  /35/ 

AGAIN, IN SMITH V. TEXAS, /36/  WE DEALT WITH A STATUTE LEAVING A
WIDE RANGE OF CHOICE TO THE COMMISSIONERS.  /37/ YET WE EXPRESSLY
UPHELD THE VALIDITY OF THE LAW.  THE STATUTORY SCHEME WAS NOT IN ITSELF
UNFAIR; IT WAS "CAPABLE OF BEING CARRIED OUT WITH NO RACIAL
DISCRIMINATION WHATSOEVER."  /38/ 

NO LESS CAN BE SAID OF THE STATUTORY STANDARDS ATTACKED IN THE
PRESENT CASE.  DESPITE THE OVERWHELMING PROOF THE APPELLANTS HAVE
ADDUCED IN SUPPORT OF THEIR CLAIM THAT THE JURY CLERK AND COMMISSIONERS
HAVE ABUSED THE DISCRETION THAT ALABAMA LAW CONFERS ON THEM IN THE
PREPARATION OF THE JURY ROLL, WE CANNOT SAY THAT SEC. 21 IS NECESSARILY
AND UNDER ALL CIRCUMSTANCES INVALID.  THE PROVISION IS DEVOID OF ANY
MENTION OF RACE.  /39/  ITS ANTECEDENTS ARE OF ANCIENT VINTAGE, /40/
AND THERE IS NO SUGGESTION THAT THE LAW WAS ORIGINALLY ADOPTED OR
SUBSEQUENTLY CARRIED FORWARD FOR THE PURPOSE OF FOSTERING RACIAL
DISCRIMINATION.  /41/  THE FEDERAL COURTS ARE NOT INCOMPETENT TO
FASHION DETAILED AND STRINGENT INJUNCTIVE RELIEF THAT WILL REMEDY ANY
DISCRIMINATORY APPLICATION OF THE STATUTE AT THE HANDS OF THE OFFICIALS
EMPOWERED TO ADMINISTER IT.  /42/  IN SUM, WE CANNOT CONCLUDE, EVEN ON
SO COMPELLING A RECORD AS THAT BEFORE US, THAT THE GUARANTEES OF THE
CONSTITUTION CAN BE SECURED ONLY BY THE TOTAL INVALIDATION OF THE
CHALLENGED PROVISIONS OF SEC. 21. 

        III 

THE APPELLANTS ALSO ATTACK THE COMPOSITION OF THE GREENE COUNTY JURY
COMMISSION.  THEY URGE THAT THE RECORD DEMONSTRATES THE CAUSAL RELATION
BETWEEN THE CONCEDED ABSENCE OF NEGROES FROM THE COMMISSION FOR AT
LEAST THE PAST DECADE AND THE SYSTEMATIC RACIAL DISCRIMINATION I THE
SELECTION OF POTENTIAL JURORS ESTABLISHED BEFORE THE DISTRICT COURT. 
IT IS ARGUED THAT EVEN THE BEST-INTENTIONED WHITE JURY COMMISSIONERS
ARE UNLIKELY TO KNOW MANY NEGROES WHO SATISFY THE STATUTORY
QUALIFICATIONS AND THAT WHITE JURY OFFICIALS IN ALABAMA GENERALLY
REGARD NEGROES AS INCAPABLE OF STTISFYING THE PREREQUISITES FOR JURY
MEMBERSHIP.  HAVING SHOWN A COURSE OF CONTINUING AND CONSISTENT
DISREGARD OF STATUTORY AND CONSTITUTIONAL STANDARDS ON THE PART OF THE
GREENE COUNTY JURY COMMISSIONERS AND THE CLERK, THE APPELLANTS CONTEND
THAT IF THE DISCRETIONARY PROVISIONS OF SEC. 21 ARE TO REMAIN THE LAW,
IT IS ESSENTIAL THAT THE JURY COMMISSION BE REPRESENTATIVE OF THE
COMMUNITY IN WHICH IT FUNCTIONS, PARTICULARLY IN AN AREA SUCH AS GREENE
COUNTY, WHERE NEGROES CONSTITUTE A MAJORITY OF THE POPULATION.  THE
DISTRICT COURT ERRED, THE APPELLANTS SAY, IN NOT ORDERING THE GOVERNOR
OF ALABAMA TO APPOINT NEGROES TO THE GREENE COUNTY JURY COMMISSION. 

THE CLAIM WAS NOT PRESENTED TO THE DISTRICT COURT IN PRECISELY THESE
TERMS.  THERE THE APPELLANTS DID NOT URGE THAT WHITE COMMISSIONERS
COULD NOT PERFORM THEIR STATUTORY TASK IN AN UNBIASED MANNER IN A
PREDOMINANTLY NEGRO COUNTY.  RATHER, THEY CONTENDEDTHATTHE GOVERNOR OF
ALABAMA HAD DELIBERATELY APPOINTED A SEGREGATED JURY COMMISSION IN
EXERCISING THE DISCRETION CONFERRED UPON HIM BY STATUTE.  THE ARGUMENT,
IN SHORT, WENT TO THE ALLEGED RACIAL DISCRIMINATION IN THE APPOINTMENT
OF THE COMMISSION, NOT TO THE BIASES INHERENT IN A COMMISSION COMPOSED
ENTIRELY OF WHITE PEOPLE, WITHOUT REGARD TO CLAIMED DISCRIMINATORY
SELECTION BY THE GOVERNOR. 

FOR PRESENT PURPOSES WE MAY ASSUME THAT THE STATE MAY NO MORE
EXCLUDE NEGROES FROM SERVICE ON THE JURY COMMISSION BECAUSE OF THEIR
RACE THAN FROM THE JURIES THEMSELVES.  BUT THE DISTRICT COURT FOUND THE
APPELLANTS HAD SHOWN ONLY THAT FOR MANY YEARS THE JURY COMMISSION HAD
BEEN COMPOSED ENTIRELY OF WHITE MEN, AND CONCLUDED THAT WITHOUT MORE
THE APPELLANTS' ATTACK FAILED FOR WANT OF PROOF.  WE THINK THAT RULING
WAS CORRECT.  QUITE APART FROM THE PROBLEMS THAT WOULD BE INVOLVED IN A
FEDERAL COURT'S ORDERING THE GOVERNOR OF A STATE TO EXERCISE HIS
DISCRETION IN A PARTICULAR WAY, WE CANNOT SAY ON THIS RECORD THAT THE
ABSENCE OF NEGROES FROM THE GREENE COUNTY JURY COMMISSION AMOUNTED IN
ITSELF TO A PRIMA FACIE SHOWING OF DISCRIMINATORY EXCLUSION.  THE
TESTIMONY BEFORE THE DISTRICT COURT INDICATED THAT THE GOVERNOR HAD
APPOINTED NO NEGROES TO THE GREEN COUNTY COMMISSION DURING THE 12 YEARS
PRECEDING THE COMMENCEMENT OF SUIT.  BUT THE APPELLANTS' TRIAL COUNSEL
CONCEDED THAT HE COULD NOT PROVE HIS CHARGE OF DISCRIMINATORY SELECTION
WITHOUT THE TESTIMONY OF THE GOVERNOR.  /43/  WHETHER OR NOT SUCH A
CONCESSION WAS NECESSARY, THE STATEMENT MAY WELL HAVE LED COUNSEL FOR
THE APPELLEES TO CONCLUDE THAT THEY WERE NOT OBLIGED TO PRODUCE
WITNESSES ON THE STATE'S BEHALF WITH RESPECT TO THIS PHASE OF THE
APPELLANTS' CASE. 

NOR CAN WE UPHOLD THE APPELLANTS' PRESENT CONTENTION THAT APART FROM
THE QUESTION OF DISCRIMINATION IN THE COMPOSITION OF THE JURY
COMMISSION, THE ABSENCE OF NEGROES FROM THE COMMISSION COMPELLED THE
DISTRICT COURT TO ORDER THE APPOINTMENT OF NEGRO COMMISSIONERS.  THE
APPELLANTS ARE NO MORE ENTITLED TO PROPORTIONAL REPRESENTATION BY RACE
ON THE JURY COMMISSION THAN ON ANY PARTICULAR GRAND OR PETIT JURY. 
/44/

IV 

THERE REMAINS THE QUESTION OF THE PROPRIETY OF THE RELIEF AFFORDED
THE APPELLANTS BY THE DISTRICT COURT.  THE COURT, AS WE
HAVENOTED,ENJOINED THE JURY CLERK AND COMMISSIONERS FROM SYSTEMATICALLY
EXCLUDING NEGROES FROM THE GREENE COUNTY JURY ROLL, AND DIRECTED THEM
"TO TAKE PROMPT ACTION TO COMPILE A JURY LIST . . . IN ACCORDANCE WITH
THE LAWS OF ALABAMA AND . . . CONSTITUTIONAL PRINCIPLES . . . . "  /45/
PURSUANT TO THE COURT'S ORDER, THE COMMISSION SUBMITTED A NEW JURY
ROLL, DATED NOVEMBER 6, 1968.  THE CLERK STATED SHE HAD BEEN INTO EACH
OF THE PRECINCTS OF GREENE COUNTY AND HAD CONTACTED PEOPLE OF BOTH
RACES BY PERSONAL VISIT, LETTER, OR TELEPHONE; WITH THEIR
RECOMMENDATIONS AND WITH THE HELP OF THE VOTING LIST AND TELEPHONE
DIRECTOR, THE COMMISSION COMPILED A NEW JURY ROLL.  WHETHER THIS ROLL
COMPLIES WITH THE TERMS OF THE DISTRICT COURT'S DECREE IS A MATTER FOR
THAT COURT TO CONSIDER IN THE FIRST INSTANCE.  THE COURT PROPERLY
RECOGNIZED THAT OTHER AND FURTHER RELIEF MIGHT BE APPROPRIATE.  FOR
THAT COURT "HAS NOT MERELY THE POWER BUT THE DUTY TO RENDER A DECREE
WHICH WILL SO FAR AS POSSIBLE ELIMINATE THE DISCRIMINATORY EFFECTS OF
THE PAST AS WELL AS BAR LIKE DISCRIMINATION IN THE FUTURE."  /46/ 

ACCORDINGLY, THE JUDGMENT BELOW IS AFFIRMED, WITHOUT PREJUDICE
TOTHERIGHT OF THE APPELLANTS TO SEEK MODIFICATION OF THE DISTRICT
COURT'S DECREE AS CIRCUMSTANCES MAY REQUIRE. 

              IT IS SO ORDERED. 

/1/  "THE SOLE PURPOSE OF THESE REQUIREMENTS IS TOINSURE THAT THE
JURY COMMISSIONERS WILL HAVE AS COMPLETE A LIST AS POSSIBLE OF NAMES,
COMPILED ON AN OBJECTIVE BASIS, FROM WHICH TO SELECT QUALIFIED
JURORS."  MITCHELL V. JOHNSON, 250 F.SUPP.  117, 123. 

/2/  THE COMMISSION MAY NOT SELECT ANY PERSON WHO IS UNDER 21, A
HABITUAL DRUNKARD, UNFIT TO DISCHARGE A JUROR'S DUTIES BECAUSE
AFFILICTED WITH A PERMENANT DISEASE OR PHYSICAL WEAKNESS, OR UNABLE TO
READ ENGLISH, NOR ANYONE WHO HAS BEEN CONVICTED OF AN OFFENSE INVOLVING
MORAL TURPITUDE.  A PERSON WHO WOULD BE DISQUALIFIED ONLY BECAUSE HE
CANNOT READ ENGLISH IS STILL ELIGIBLE FOR JURY SERVICE IF HE IS A
FREEHOLDER OR HOUSEHOLDER.  A PERSON OVER 65 MAY NOT BE REQUIRED TO
SERVE BUT IS ELIGIBLE IF HE IS WILLING TO DO SO.  SEC. 21.  THE
COMMISSION IS ALSO REQUIRED TO EXEMPT VARIOUS CLASSES OF PERSONS, BASED
ON THEIR OCCUPATION, UNLESS THEY CONSENT TO SERVE.  SEC. 3.  IN
ADDITION, THE COURT MAY EXCUSE ANY PERSON WHO APPEARS TO BE UNFIT TO
SERVE ON A JURY, OR WHO IS DISQUALIFIED OR EXEMPT, "OR FOR ANY OTHER
REASONABLE OR PROPER CAUSE . . . . "  SECS. 4, 5. 

UNTIL 1966 ONLY MEN WERE ELIGIBLE FOR SERVICE.  THE BLANKET
EXCLUSION OF WOMEN WAS DECLARED UNCONSTITUTIONALIN WHITE V. CROOK, 251
F.SUPP.  401, 408-409; THEREAFTER ALABAMA AMENDED ITS STATUTES TO
RENDER WOMEN ELIGIBLE.  SEC. 21(1).  THE TRIAL JUDGE MAY, HOWEVER,
EXCUSE THEM FROM JURY DUTY FOR GOOD CAUSE SHOWN.  SEC. 21. 

THE REQUIREMENT THAT THE COMMISSION PLACE THE NAME OF EVERY
QUALIFIED, NONEXEMPT PERSON ON THE JURY ROLL IS PERMISSIVE, NOT
MANDATORY, IN THAT THE JURY COMMISSION'S FAILURE TO DO SO DOES NOT,
ABSENT FRAUD OR DENIAL OF CONSTITUTIONAL RIGHTS, COMPEL THE QUASHING OF
THE INDICTMENT OR VENIRE.  FIKES V. STATE, 263 ALA. 89, 95, 81 SO.2D
303, 309, REV'D ON OTHER GROUNDS, 352 U.S. 191; SEE SWAIN V. ALABAMA,
380 U.S. 202, 207 N. 3; WHITE V. CROOK, SUPRA, AT 403 N. 6; MITCHELL V.
JOHNSON, SUPRA, AT 119 N. 5. 

/3/  BOKULICH V. JURY COMMISSION OF GREENE COUNTY, 298 F.SUPP.  181,
187-188.  (FOOTNOTES OMITTED.) 

/4/  COLEMAN V. BARTON, NO. 63-4 (N.D. ALA. 1964).  THE OPINION IS
UNREPORTED.  SEE 298 F.SUPP.,AT 184. 

/5/  IN 1966 ALABAMA STILL LIMITED JURY SERVICE TO MALES.  SEE N. 2,
SUPRA. 

/6/  THE DISTRICT COURT REJECTED THE APPELLEES' CONTENTION THAT AN
EMIGRATION OF YOUNGER AND BETTER-EDUCATED NEGROES FROM THE COUNTY IN
THE 1960'S ACCOUNTED FOR THE DISPARITY BETWEEN THE RACIAL COMPOSITION
OF THE COUNTY IN 1960 AND OF THE JURY ROLLS DURING THE SUCCEEDING YEARS
OF THE DECADE.  298 F.SUPP.,AT 188.  SEE COLEMAN V. ALABAMA, 389 U.S.
22, 23. 

/7/  OTHER PLAINTIFFS IN THE SUIT SOUGHT SIMILAR RELIEF, AS WELL AS
AN INJUNCTION TO PREVENT THE GRAND JURY FROM CONSIDERING CHARGES OF
GRAND LARCENY THEN OUTSTANDING AGAINST THEM.  THE DISTRICT COURT DENIED
RELIEF WITH RESPECT TO THOSE PLAINTIFFS, AND THEY TOOK A SEPARATE
APPEAL.  WE AFFIRMED THAT PORTION OF THE DISTRICT COURT'S JUDGMENT LAST
TERM, AND THOSE PLAINTIFFS ARE NO LONGER BEFORE US.  BOKULICH V. JURY
COMMISSION OF GREENE COUNTY, 394 U.S. 97 (PER CURIAM).     /8/  ARNOLD
V. NORTH CAROLINA, 376 U.S. 773 (PER CURIAM); EUBANKS V. LOUISIANA, 356
U.S. 584; REECE V. GEORGIA, 350 U.S. 85, 87; CASSELL V. TEXAS, 339 U.S.
282; HILL V. TEXAS, 316 U.S. 400, 404, 406; SMITH V. TEXAS, 311 U.S.
128, 129-130; PIERRE V. LOUISIANA, 306 U.S. 354, 356-358, 362; ROGERS
V. ALABAMA, 192 U.S. 226, 231; CARTER V. TEXAS, 177 U.S. 442, 447; BUSH
V. KENTUCKY, 107 U.S. 110, 121.     /9/  AVERY V. GEORGIA, 345 U.S.
559; HOLLINS V. OKLAHOMA, 295 U.S. 394 (PER CURIAM). 

/10/  SIMS V. GEORGIA, 389 U.S. 404, 407-408; WHITUS V. GEORGIA, 385
U.S. 545; SWAIN V. ALABAMA, 380 U.S. 202; COLEMAN V. ALABAMA, 377 U.S.
129; PATTON V. MISSISSIPPI, 332 U.S. 463; HALE V. KENTUCKY, 303 U.S.
613 (PER CURIAM); NORRIS V. ALABAMA, 294 U.S. 587, 589; MARTIN V.
TEXAS, 200 U.S. 316, 319; NEAL V. DELAWARE, 103 U.S. 370, 396-397;
STRAUDER V. WEST VIRGINIA, 100 U.S. 303. 

/11/  BILLINGSLEY V. CLAYTON, 359 F.2D 13, 16 (EN BANC); JEWELL V.
STEBBINS, 288 F.SUPP.  600, 604-605; WHITE V. CROOK, 251 F.SUPP.  401,
405-406; MITCHELL V. JOHNSON, 250 F.SUPP.  117, 121.  SEE KUHN, JURY
DISCRIMINATION:  THE NEXT PHASE, 41 S.CAL.L.REV.  235, 247-249; NOTE,
THE CONGRESS, THE COURT AND JURY SELECTION:  A CRITIQUE OF TITLES I AND
II OF THE CIVIL RIGHTS BILL OF 1966, 52 VA.L.REV.  1069, 1084-1094
(1966). 

/12/  CF. CARRINGTON V. RASH, 380 U.S. 89, 91; LASSITER V.
NORTHAMPTON COUNTY BOARD OF ELECTIONS, 360 U.S. 45, 50-51; POPE V.
WILLIAMS, 193 U.S. 621, 632. 

/13/  COMPARE DUNCAN V. LOUISIANA, 391 U.S. 145, WITH HURTADO V.
CALIFORNIA, 110 U.S. 516. 

/14/ SEE EX PARTE VIRGINIA, 100 U.S. 339, 346-347; VIRGINIA V.
RIVES, 100 U.S. 313, 321. 

/15/  STRAUDER V. WEST VIRGINIA, SUPRA, AT 308. 

/16/  SMITH V. TEXAS, SUPRA, AT 130. 

/17/  STRAUDER V. WEST VIRGINIA, SUPRA.  CONGRESS, RECOGNIZING SUCH
A RIGHT, HAS LONG PROVIDED A CRIMINAL SANCTION FOR ITS VIOLATION: 

"NO CITIZEN POSSESSING ALL OTHER QUALIFICATIONS WHICH ARE OR MAY BE
PRESCRIBED BY LAW SHALL BE DISQUALIFIED FOR SERVICE AS GRAND OR PETIT
JUROR IN ANY COURT OF THE UNITED STATES, OR OF ANY STATE ON ACCOUNT OF
RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE; AND WHOEVER, BEING AN
OFFICER OR OTHER PERSON CHARGED WITH ANY DUTY IN THE SELECTION OR
SUMMONING OF JURORS, EXCLUDES OR FAILS TO SUMMON ANY CITIZEN FOR SUCH
CAUSE, SHALL BE FINED NOT MORE THAN $5,000."  18 U.S.C. 243. 

/18/  CF. WHITUS V. GEORGIA, SUPRA, AT 552. 

/19/  CF. WITCHER V. PEYTON, 405 F.2D 725, 727. 

/20/  CF. GRAY V. MAIN, 309 F.SUPP.  207, 224. 

/21/  CF. BROOKS V. BETO, 366 F.2D 1, 27 (WISDOM, J., CONCURRING IN
RESULT), CERT. DENIED, 386 U.S. 975. 

/22/  ACCORDING TO THE APPELLANTS, CIVIL SUITS CHALLENGING ALLEGED
RACIAL DISCRIMINATION IN JURY SELECTION HAVE BEEN COMMENCED IN FEDERAL
DISTRICT COURTS THROUGHOUT ALABAMA. 

/23/  BROWN V. ALLEN, 344 U.S. 443, 473 (OPINION OF MR. JUSTICE
REED, ANNOUNCING JUDGMENT); CASSELL V. TEXAS, SUPRA, AT 291
(FRANKFURTER, J., CONCURRING IN JUDGMENT); VIRGINIA V. RIVES, SUPRA, AT
334-335 (FIELD J., CONCURRING IN JUDGMENT); STRAUDER V. WEST VIRGINIA,
SUPRA, AT 310. 

/24/  NEAL V. DELAWARE, SUPRA, AT 386; STRAUDER V. WEST VIRGINIA,
SUPRA. 

/25/  GIBSON V. MISSISSIPPI, 162 U.S. 565, 589.  THE FEDERAL COURTS
HAVE UPHELD SIMILAR QUALIFICATIONS IN REVIEWING THEIR OWN JURY
SELECTION SYSTEM.  SEE, E.G., UNITED STATES V. FLYNN, 216 F.2D 354, 388
(C.A. 2D CIR.) (HARLAN, J.), CERT. DENIED, 348 U.S. 909; UNITED STATES
V. DENNIS, 183 F.2D 201, 220 (C.A. 2D CIR.) (L. HAND, J.), CERT.
GRANTED, LIMITED TO OTHER GROUNDS, 340 U.S. 863. 

/26/  BROWN V. ALLEN, SUPRA, AT 474 (OPINION OF MR. JUSTICE REED,
ANNOUNCING JUDGMENT). 

/27/  SEE, E.G., ARIZ. REV. STAT. ANN. SEC. 21-201 (1956); WIS.
STAT. ANN. SEC. 255.01(1) (SUPP. 1969). 

/28/  SEE, E.G., CAL. CIV. PRO. CODE SEC. 198 (1954); WASH. REV.
CODE SEC. 2.36.070(2) (1956). 

/29/  E.G., COLO. REV. STAT. ANN. SEC. 78-1-1(1) (1963) (21 YEARS
OLD); MD. ANN. CODE, ART. 51, SEC. 1 (1968 REPL.  VOL.)  (25 YEARS);
HAWAII REV. STAT. SEC. 609-1(1) (1968) (20 YEARS); NEB. REV. STAT. SEC.
25-1961(1) (1964) (25 YEARS); R.I. GEN. LAWS ANN. SEC. 9-9-1 (1956)
(SAME). 

/30/  SEE, E.G., PA. STAT. ANN., TIT. 17, SEC. 1322 (1962).  VERMONT
HAS DELEGATED THE FUNCTION OF DETERMINING QUALIFICATIONS TO COURT
ADMINISTRATORS.  VT. STAT. ANN., TIT. 4, SEC. 902 (SUPP. 1969). 

/31/  ARIZ. REV. STAT. ANN. SEC. 21-201 (1956); ARK. STAT. ANN. SEC.
39-206 (1962 REPL.  VOL.); CONN. GEN. STAT. REV. SEC. 51-217 (1968);
FLA. STAT. SEC. 40.01(3) (1965); HAWAIIREV.  STAT.  SEC. 609-1(3)
(1968); ILL. REV. STAT., C. 78, SEC. 2 (1967) ("FAIR CHARACTER"); IOWA
CODE SEC. 607.1 (1966); KAN. STAT. ANN. SEC. 43-102 (1964); KY. REV.
STAT. SEC. 29.025 (1962) ("TEMPERATE, DISCREET, AND OF GOOD DEMEANOR");
ME. REV. STAT. ANN., TIT. 14, SEC. 1254 (1964); NEB. REV. STAT. SEC. 25
1601(1) (1964) ("FAIR CHARACTER"); N.Y. JUDICIARY LAW SEC. 504(4)
(SUPP. 1969); OKLA. STAT. ANN., TIT. 38, SEC. 28 (SUPP. 1969); S.C.
CODE ANN. SEC. 38-52 (SUPP. 1968); TEX. REV. CIV. STAT. ANN., ART.
2133(2) (1964); WIS. STAT. ANN. SEC. 255.01(5) (SUPP. 1969). 

ANOTHER PHRASE FREQUENTLY FOUND IS "APPROVED INTEGRITY."  E.G.,
CONN. GEN. STAT. REV. SEC. 51-217 (1968); FLA. STAT. SEC. 40.01(3)
(1965); ILL. REV. STAT., C. 78, SEC. 2 (1967); KAN. STAT. ANN. SEC. 43
102 (1964); ME. REV. STAT. ANN., TIT. 14, SEC. 1254 (1964); NEB. REV.
STAT. SEC. 25-1601(1) (1964).  SEE ALSO ARIZ. REV. STAT. ANN. SEC. 21
201 (1956) ("SOBER"); MD. ANN. CODE, ART. 51, SEC. 9 (SUPP. 1968)
("INTEGRITY"); MISS.  CODE ANN. SEC. 1762-02 (SUPP. 1968) (NOT A
"HABITUAL DRUNKARD"); MO. ANN. STAT. SEC. 494.010 (SUPP. 1969)
("SOBER"); OKLA. STAT. ANN., TIT. 38, SEC. 28 (SUPP. 1969) (NOT A
HABITUAL DRUNKARD); TENN. CODE ANN. SEC. 22-102 (1955) (SAME); W. VA.
CODE ANN. SEC. 52-1-2 (1966) (SAME); CF. N.H. REV. STAT. ANN. SEC.
500:29 (1968 REPL.  VOL.)  (DISQUALIFICATION ON ACCOUNT OF "VICIOUS
HABITS"); WASH. REV. CODE SEC. 2.36.110 (1959) ("UNFIT PERSONS" MUST BE
EXCUSED). 

/32/  ARIZ. REV. STAT. ANN. SEC. 21-201 (1956); CAL. CIV. PRO. CODE
SEC. 198 (1954); FLA. STAT. SEC. 40.01(3) (1965); HAWAII REV. STAT.
SEC. 609-1(3) (1968); MD. ANN. CODE, ART. 51, SEC. 9 (SUPP. 1968); MO.
ANN. STAT. SEC. 494.010 (SUPP. 1969); MONT. REV. CODES ANN. SEC. 93
1301(2) (1964 REPL.  VOL.); NEB. REV. STAT. SEC. 25-1601(1) (1964);
N.Y. JUDICIARY LAW SEC. 596(5) (1968) (ONLY FOR CITIES OF ONE MILLION
IN POPULATION); WYO. STAT. ANN. SEC. 1-77(2) (SUPP. 1969).  SEE ALSO
CONN. GEN. STAT. REV. SEC. 51-217 (1968) ("SOUND JUDGMENT"); FLA. STAT.
SEC. 40.01(3) (1965) (SAME); ILL. REV. STAT., C. 78, SEC. 2 (1967)
(SAME); IOWA CODE SEC. 607.1 (1966) (SAME); ME. REV. STAT. ANN., TIT.
14, SEC. 1254 (1964) (SAME); N.D. CENT. CODE SEC. 27-09-01 (1960)
("SOUND MIND AND DISCRETION"); OKLA. STAT. ANN., TIT. 38, SEC. 28
(SUPP. 1969) (SAME); S.C. CODE ANN. SEC. 38-52 (SUPP. 1968) ("SOUND
JUDGMENT"); UTAH CODE ANN. SEC. 78-46-8(5) (1953) ("SOUND MIND AND
DISCRETION"); WIS. STAT. ANN. SEC. 255.01(5) (SUPP. 1969) ("SOUND
JUDGMENT"). 

/33/  ILL. REV. STAT., C. 78, SEC. 2 (1967); KAN. STAT. ANN. SEC. 43
102 (1964); ME. REV. STAT. ANN., TIT. 14, SEC. 1254 (1964); NEB. REV.
STAT. SEC. 25-1601(1) (1964); SEE CONN. GEN. STAT. REV. SEC. 51-217
(1968) ("FAIR EDUCATION").  SEE NOTE, THE CONGRESS, THE COURT AND JURY
SELECTION:  A CRITIQUE OF TITLES I AND II OF THE CIVIL RIGHTS BILL OF
1966, 52 VA.L.REV.  1069, 1072-1073 (1966) (COLLECTING REFERENCES). 

/34/  218 U.S. 161. 

/35/  218 U.S.,AT 167-168. 

/36/  311 U.S. 128. 

/37/  SEE AKINS V. TEXAS, 325 U.S. 398, 402-403 AND N. 3. 

/38/  311 U.S.,AT 130-131.  (FOOTNOTE OMITTED).  CF. HERNANDEZ V.
TEXAS, 347 U.S. 475, 478-479, AND CASSELL V. TEXAS, SUPRA, AT 284,
WHERE NO CHALLENGE WAS MADE TO THE STATUTORY SCHEME. 

/39/  FROM THE EARLIEST CONSIDERATION OF RACIAL DISCRIMINATION IN
JURY SELECTION, THE COURT HAS CONSISTENTLY DISTINGUISHED, FORPURPOSESOF
DETERMINING THE REMOVABILITY OF A STATE CRIMINAL PROCEEDING TO A
FEDERAL COURT, BETWEEN A STATUTE EXPRESSLY EXCLUDING NEGROES FROM JURY
SERVICE AND ONE NEUTRAL ON ITS FACE WITH RESPECT TO RACE BUT CHALLENGED
AS DISCRIMINATORILY APPLIED.  COMPARE MURRAY V. LOUISIANA, 163 U.S.
101, 105-106; SMITH V. MISSISSIPPI, 162 U.S. 592, 600; GIBSON V.
MISSISSIPPI, SUPRA, AT 579-586; BUSH V. KENTUCKY, SUPRA, AT 116; NEAL
V. DELAWARE, SUPRA, AT 386-393; VIRGINIA V. RIVES, SUPRA, AT 318-323,
WITH STRAUDER V. WEST VIRGINIA, SUPRA, AT 310-312.  SEE CITY OF
GREENWOOD V. PEACOCK, 384 U.S. 808, 827-828; GEORGIA V. RACHEL, 384
U.S. 780, 797-804. 

/40/  SEE ALA. PEN.  CODE OF 1841, C. X, SECS. 1, 3. 

/41/  SUCH CONSIDERATIONS DISTINGUISH THE PRESENT CASE FROM
LOUISIANA V. UNITED STATES, 380 U.S. 145, WHERE WE INVALIDATED A
PROVISION OF THE LOUISIANA CONSTITUTION THAT VESTED IN THE STATE'S
VOTING REGISTRAS "A VIRTUALLY UNCONTROLLED DISCRETION AS TO WHO SHOULD
VOTE AND WHO SHOULD NOT," AND THAT HAD BEEN ABUSED "TO DEPRIVE OTHER
WISE QUALIFIED NEGRO CITIZENS OF THEIR RIGHT TO VOTE . . . . "  380
U.S.,AT 150.  THE DISTRICT COURT FOUND THAT THE CONSTITUTIONAL
PROVISION, AS WRITTEN AND AS APPLIED, WAS "PART OF A SUCCESSFUL PLAN TO
DEPRIVE LOUISIANA NEGROES OF THEIR RIGHT TO VOTE."  380 U.S.,AT 151,
AFF'G 225 F.SUPP.  353, 356, 363-381.  CF. SOUTH CAROLINA V.
KATZENBACH, 383 U.S. 301, 312-313; UNITED STATES V. MISSISSIPPI, 380
U.S. 128, 131-136, 143-144; ALABAMA V. UNITED STATES, 371 U.S. 37, PER
CURIAM, AFF'G 304 F.2D 583, 584-589, AFF'G 192 F.SUPP.  677; SCHNELL V.
DAVIS, 336 U.S. 933, PER CURIAM, AFF'G 81 F.SUPP.  872, 876, 878-880. 

/42/  IN LOUISIANA V. UNITED STATES, SUPRA, THE DISTRICT COURT HELD
THE CHALLENGED CONSTITUTIONAL PROVISION INVALID PER SE ON THE BASIS OF
ITS FINDING THAT IN VIEW OFTHEPROVISIONS'"VOTE-ABRIDGING PURPOSE AND
EFFECT," ITS VICES COULD NOT BE CURED BY AN INJUNCTION PROHIBITING ITS
UNFAIR APPLICATION.  225 F.SUPP.,AT 391, AFF'D, 380 U.S.,AT 150 AND N.
9.  CF. DAVIS V. SCHNELL, 81 F.SUPP.,AT 877. 

/43/  THE DISTRICT COURT GRANTED A MOTION TO QUASH THE SUBPOENA
SERVED ON THE GOVERNOR WHEN IT APPEARED THAT THE APPELLANTS HAD FAILED
TO TENDER HIM HIS FEES.  SEE FED. RULE CIV. PROC. 45(C). 

/44/  MOORE V. HENSLEE, 276 F.2D 876, 878-879; CF. SWAIN V. ALABAMA,
SUPRA, AT 208; CASSELL V. TEXAS, SUPRA, AT 291 (FRANKFURTER, J.,
CONCURRING IN JUDGMENT); AKINS V. TEXAS, SUPRA, AT 403; MARTIN V.
TEXAS, SUPRA, AT 320-321; GIBSON V. MISSISSIPPI, SUPRA, AT 580; BUSH V.
KENTUCKY, SUPRA, AT 117; NEAL V. DELAWARE, SUPRA, AT 394; VIRGINIA V.
RIVES, SUPRA, AT 323; SEE HOYT V. FLORIDA, 368 U.S. 57, 59, 69. 

/45/  SEE 298 F.SUPP.,AT 193. 

/46/  LOUISIANA V. UNITED STATES, 380 U.S. 145, 154.  CF. ALABAMA V.
UNITED STATES, 304 F.2D 583, 590-591, AFF'D, 371 U.S. 37 (PER CURIAM). 
OF PARTICULAR RELEVANCE IS THE DECREE DRAWN BY DISTRICT JUDGE JOHNSON
IN MITCHELL V. JOHNSON, IN THE DISTRICT COURT FOR THE MIDDLE DISTRICT
OF ALABAMA, 250 F.SUPP.  117, 123-124: 

"THE RELIEF TO BE AFFORDED IN THIS CASE WILL INVOLVE NOT ONLY THE
ISSUANCE OF A PROHIBITORY INJUNCTION, BUT AN INJUNCTION REQUIRING
IMMEDIATE AFFIRMATIVE ACTION BY THE JURY COMMISSIONERS BY THEIR
EMPTYING THE . . . COUNTY JURY BOX, ABANDONING THE PRESENT . . . JURY
ROLL WITHOUT ANY FURTHER USE OF EITHER, AND BY THEIR COMPILING A JURY
ROLL AND REFILLING THE JURY BOX IN STRICT ACCORDANCE WITH THE LAW OF
ALABAMA AND THE CONSTITUTIONAL PRINCIPLES HEREIN SET FORTH.  . . . IN
REMEDYING THIS WRONG, THE DEFENDANTS ARE CAUTIONED THAT IF THEY APPLY
ALABAMA'S QUALIFICATIONS FOR JURY SERVICE-- PARTICULARLY THAT
QUALIFICATION RELATING TO GOOD CHARACTER AND SOUND JUDGMENT AND THAT
QUALIFICATION CONCERNING THE REQUIREMENT THAT PROSPECTIVE JURORS BE
ABLE TO READ ENGLISH-- THESE QUALIFICATION REQUIREMENTS MUST BE IMPOSED
FAIRLY AND OBJECTIVELY AND ADMINISTERED TO ALL REGARDLESS OF RACE, IN A
NONDISCRIMINATORY MANNER.  . . .

.          .          .          . 

"FAILURE ON THE PART OF THE DEFENDANTS TO COMPLY IMMEDIATELY AND IN
GOOD FAITH WITH THE REQUIREMENTS OF THIS OPINION AND ORDER WILL
NECESSITATE THE APPOINTMENT BY THIS COURT OF A MASTER OR PANEL OF
MASTERS TO RECOMPILE THE JURY ROLL AND TO EMPTY AND REFILL THE . . .
JURY BOX."  (FOOTNOTES OMITTED.) 

ACCORD:  PULLUM V. GREENE, 396 F.2D 251, 257; TURNER V. SPENCER, 261
F.SUPP.  542, 544; WHITE V. CROOK, 251 F.SUPP.  401, 409-410. 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN THE JUDGMENT AND OPINION OF THE COURT EXCEPT INSOFAR AS
IT MAY LEAVE AN IMPLICATION THAT THIS COURT HAS THE POWER TO VACATE A
STATE GOVERNOR'S APPOINTMENT OF JURY COMMISSIONERS OR THE POWER TO
COMPEL THE GOVERNOR OF A STATE TO APPOINT NEGROES OR ANY OTHER PERSONS
TO THE OFFICE OF JURY COMMISSIONER.  IN MY JUDGMENT THE CONSTITUTION NO
MORE GRANTS THIS COURT THE POWER TO COMPEL A GOVERNOR TO APPOINT OR
REJECT A CERTAIN INDIVIDUAL OR A MEMBER OF ANY PARTICULAR GROUP THAN IT
GRANTS THIS COURT THE POWER TO COMPEL THE VOTERS OF A STATE TO ELECT OR
DEFEAT A PARTICULAR PERSON OR A MEMBER OF A PARTICULAR GROUP. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

THERE COMES A TIME WHEN AN ORGAN OR AGENCY OF STATE LAW HAS PROVED
ITSELF TO HAVE SUCH A RACIST MISSION THAT IT SHOULD NOT SURVIVE
CONSTITUTIONAL CHALLENGE.  THE INSTANCES ARE NOT NUMEROUS IN OUR
HISTORY.  BUT THEY HAVE APPEARED.  ONE WAS PRESENT IN LOUISIANA V.
UNITED STATES, 380 U.S. 145, WHERE A STATE CONSTITUTION REQUIRED EVERY
VOTER WHO APPLIED TO REGISTER TO "BE ABLE TO UNDERSTAND" AS WELL AS
"GIVE A REASONABLE INTERPRETATION" OF ANY SECTION OF THE STATE OR
FEDERAL CONSTITUTION "WHEN READ TO HIM BY THE REGISTRAR."  ID., AT
149.  THIS INTERPRETATION TEST HAD HAD A HISTORY OF DEPRIVING
"OTHERWISE QUALIFIED NEGRO CITIZENS OF THEIR RIGHT TO VOTE," ID., AT
150, AND WAS DEEMED INCAPABLE OF FAIR APPLICATION THROUGH POLICING BY
INJUNCTION.  ID., AT 150 N. 9.  WE THEREFORE STRUCK IT DOWN.     THE
DISTRICT COURT IN THE INSTANT CASE HELD THAT "(THE ATTACK ON RACIAL
COMPOSITION OF THE (JURY) COMMISSION FAILS FOR WANT OF PROOF.  NO PROOF
WAS ADDUCED EXCEPT THAT THE COMMISSION IN GREENE COUNTY NOW IS AND FOR
MANY YEARS HAS BEEN COMPOSED ENTIRELY OF WHITE MEN APPOINTED BY THE
GOVERNOR."  298 F.SUPP.  181, 192.  BUT, AS THE OPINION OF THE COURT
STATES, THE RECORD SHOWS MUCH MORE:  IT DEMONSTRATES A SYSTEMATIC
EXCLUSION OF NEGROES FROM JURIES IN GREEN COUNTY EVEN THOUGH THE
NEGROES OUTNUMBER THE WHITES BY TWO TO ONE.  IT SHOWS (1) THAT THE
WHITE JURY OFFICIALS-- CONSISTENT WITH SOUTHERN RACIAL PATTERNS-- HAD
LITTLE, IF ANY, CONTACTS WITH NEGROES; (2) THAT THE OFFICIALS KNEW VERY
FEW NEGROES AND PRACTICALLY NOTHING ABOUT THE BLACK COMMUNITY; (3) THAT
ONLY A FEW NEGROES WERE CONTACTED TO SECURE BLACK NAMES FOR JURY
LISTING; (4) THAT IN APPLYING THE STATUTORILY CREATED SUBJECTIVE
STANDARDS, THE WHITE JURY OFFICIALS RELIED, NOT ONLY ON THEIR OWN
SUBJECTIVE JUDGMENTS, BUT ALSO ON THE SUBJECTIVE JUDGMENTS OF OTHER
PEOPLE; (5) THAT FEW NEGROES COULD BE EXPECTED TO PASS MUSTER UNDER
THESE STANDARDS; AND (6) THAT, AS STATED BY THE COURT, "(IN 1966 ONLY
82 NEGROES APPEARED AMONG THE 471 CITIZENS LISTED ON THE JURY ROLL; 50%
OF THE WHITE MALE POPULATION OF THE COUNTY FOUND ITS WAY TO THE JURY
ROLL IN THAT YEAR, BUT ONLY 4% OF THE NEGRO.  IN 1967, FOLLOWING A
STATUTORY AMENDMENT, THE COMMISSION ADDED WOMEN TO THE JURY ROLL.  UPON
THE EXPANSION OF THE LIST, NEGROES COMPOSED 388 OF THE 1,198 POTENTIAL
JURORS-- STILL ONLY 32% OF THE TOTAL, EVEN THOUGH THE 1967 POPULATION
OF THE COUNTY WAS ESTIMATED TO BE ABOUT 65% NEGRO."  ANTE, AT 327-328. 

I CANNOT SEE ANY SOLUTION TO THE PRESENT PROBLEM, UNLESS THE JURY
COMMISSION IS BY LAW REQUIRED TO BE BI-RACIAL.  IN THE KINGDOM OF
HEAVEN, AN ALL-WHITE OR AN ALL-BLACK COMMISSION COULD BE EXPECTED TO DO
EQUAL JUSTICE TO ALL RACES IN THE SELECTION OF PEOPLE "GENERALLY
REPUTED TO BE HONEST AND INTELLIGENT" AND "ESTEEMED IN THE COMMUNITY
FOR THEIR INTEGRITY, GOOD CHARACTER AND SOUND JUDGMENT."  ALA. CODE,
TIT. 30, SEC. 21 (SUPP. 1967).  BUT, WHERE THERE EXISTS A PATTERN OF
DISCRIMINATION, AN ALL-WHITE OR ALL-BLACK JURY COMMISSION IN THESE
TIMES PROBABLY MEANS THAT THE RACE IN POWER RETAINS AUTHORITY TO
CONTROL THE COMMUNITY'S OFFICIAL LIFE, AND THAT NO JURY WILL LIKELY BE
SELECTED THAT IS A TRUE CROSS-SECTION OF THE COMMUNITY. 

WE HAVE OFTEN SAID THAT NO JURY NEED REPRESENT PROPORTIONALLY A
CROSS-SECTION OF THE COMMUNITY.  /1/  SEE SWAIN V. ALABAMA, 380 U.S.
202, 208-209; CASSELL V. TEXAS, 339 U.S. 282, 286-287.  JURY SELECTION
IS LARGELY BY CHANCE; AND NO MATTER WHAT THE RACE OF THE DEFENDANT, HE
BEARS THE RISK THAT NO RACIAL COMPONENT, PRESUMABLY FAVORABLE TO HIM,
WILL APPEAR ON THE JURY THAT TRIES HIM.  THE LAW ONLY REQUIRES THAT THE
PANEL NOT BE PURPOSELY UNREPRESENTATIVE.  SEE WHITUS V. GEORGIA, 385
U.S. 545, 550.  THOSE FINALLY CHOSEN MAY HAVE NO MINORITY
REPRESENTATION AS A RESULT OF THE OPERATION OF CHANCE, CHALLENGES FOR
CAUSE, AND PEREMPTORY CHALLENGES. 

THE PROBLEM IN THE PRESENT CASE IS TO KEEP THE SELECTIVE PROCESS
FREE OF ANY RACIST INFLUENCE.  THAT IMPLICATES THE JURY COMMISSION THAT
HAS CONTINUING OVERSIGHT OVER THE OPERATION OF THE JURY SYSTEM. 

I EXPRESSED MY DOUBTS IN SELLERS V. LAIRD, 395 U.S. 950, WHETHER
UNDER THE SELECTIVE SERVICE SYSTEM AN ALL-WHITE BOARD COULD BE EXPECTED
TO DO EQUAL JUSTICE TO NEGRO REGISTRANTS, AT LEAST AS RESPECTS MANY
PROBLEMS.  THOSE DOUBTS ARE RESOLVED HERE, BECAUSE OF THE ESTABLISHED
PATTERN OF RACIAL DISCRIMINATION WHICH THIS ALL-WHITE JURY COMMISSION
HAS CREDITED TO IT.  INDIA HAS HANDLED THIS TYPE OF PROBLEM BY
CONSTITUTIONAL AMENDMENT.  /2/  BUT OUR CONSTITUTIONAL MANDATE AGAINST
RACIAL DISCRIMINATION IS SUFFICIENT WITHOUT MORE. 

WHERE THE CHALLENGED STATE AGENCY, DEALING WITH THE RIGHTS AND
LIBERTIES OF THE CITIZEN, HAS A RECORD OF RACIAL DISCRIMINATION, THE
CORRECTIVE REMEDY IS PROPORTIONAL REPRESENTATION.  UNDER OUR
CONSTITUTION THAT WOULD INDEED SEEM TO BE THE ONLY EFFECTIVE CONTROL
OVER THE TYPE OF RACIAL DISCRIMINATION LONG PRACTICED IN THIS CASE. 

I WOULD NOT WRITE A DECREE THAT REQUIRES A GOVERNOR TO NAME TWO
NEGROES OUT OF THREE COMMISSIONERS.  I WOULD GO NO FURTHER THAN TO
STRIKE DOWN THIS JURY COMMISSION SYSTEM, BECAUSE IT DOES NOT PROVIDE
FOR PROPORTIONAL REPRESENTATION OF THE TWO RACES. 

/1/  THE CIVIL RIGHTS ACT OF 1964, SEC. 703, 78 STAT. 255, 42 U.S.C.
2000E-2(A), MAKES IT UNLAWFUL FOR AN EMPLOYER ON A FEDERALLY FINANCED
PROJECT "TO LIMIT, SEGREGATE, OR CLASSIFY" HIS EMPLOYEES BECAUSE OF
RACE.  IN COMMENTING ON THE PHILADELPHIA PLAN, REGULATING EMPLOYMENT ON
FEDERALLY FINANCED CONSTRUCTION JOBS, THE WASHINGTON POST STATED: 

"QUOTAS ARE UNDERSTANDABLY ABHORRENT TO THOSE SEEKING TO DO AWAY
WITH DISCRIMINATION.  A QUOTA IN THIS CONTEXT MEANSACEILING.  SOME
YEARS AGO, WHEN COLLEGES WERE ACCUSED OF DISCRIMINATING AGAINST
RELIGIOUS MINORITIES IN THEIR ADMISSION POLICIES, THEY FIXED QUOTAS IN
PERCENTAGE TERMS FOR THESE MINORITIES BASED UPON THEIR RATIO TO THE
GENERAL POPULATION AND NOT UPON THEIR ABILITY TO MEET COMPETITIVE
ENTRANCE TESTS; THESE QUOTAS THEN BECAME A MAXIMUM FOR THE ADMISSION OF
MINORITY GROUP STUDENTS.  THE GOALS EMBODIED IN THE PHILADELPHIA PLAN
CONSTITUTE A FLOOR, NOT A CEILING, A MINIMUM RATHER THAN A MAXIMUM;
THEY CONSTITUTE AN AGREEMENT TO ENLARGE JOB OPPORTUNITIES FOR MINORITY
WORKERS, NOT RESTRICT THEM; AND SO THEY ARE IN COMPLETE CONFORMITY WITH
THE ESSENTIAL SPIRIT AND PURPOSE OF THE CIVIL RIGHTS ACT."  JAN. 14,
1970, P. A18. 

/2/  THE CONSTITUTION OF INDIA CONTAINS PROVISIONS FOR HER
ECONOMICALLY AND EDUCATIONALLY DEPRIVED CLASSES, INCLUDING THE
UNTOUCHABLES.  ARTICLE 15(4) PROVIDES:  "NOTHING IN THIS ARTICLE OR IN
CLAUSE (2) OF ARTICLE 29 SHALL PREVENT THE STATE FROM MAKING ANY
SPECIAL PROVISION FOR THE ADVANCEMENT OF ANY SOCIALLY AND EDUCATIONALLY
BACKWARD CLASSES OF CITIZENS OR FOR THE SCHEDULED CASTES AND THE
SCHEDULED TRIBES."  THIS PROVISION WAS ADDED TO THE CONSTITUTION BY A
1951 AMENDMENT, THE OBJECT OF WHICH WAS TO OVERRIDE THE DECISION IN
STATE OF MADRAS V. DORAIRAJAN, ALL INDIA REPTR.  1951 SUP.CT. 226, AND
TO MAKE IT CONSTITUTIONAL FOR THE STATE TO RESERVE SEATS FOR BACKWARD
CLASSES OF CITIZENS AND SCHEDULED CASTES AND TRIBES IN PUBLIC
EDUCATIONAL INSTITUTIONS, OR TO TAKE OTHER SIMILAR ACTION FOR THEIR
ADVANCEMENT. 

ARTICLE 16(4), RELATING TO PUBLIC EMPLOYMENT, PROVIDES:  "NOTHING IN
THIS ARTICLE SHALL PREVENT THE STATE FROM MAKING ANY PROVISION FOR THE
RESERVATION OF APPOINTMENTS OR POSTS IN FAVOUR OF ANY BACKWARD CLASS OF
CITIZENS WHICH, IN THE OPINION OF THE STATE, IS NOT ADEQUATELY
REPRESENTED IN THE SERVICES UNDER THE STATE."  THE OBJECTIVE OF
"ADEQUATE REPRESENTATION" APPLIES NOT MERELY TO LOWER GOVERNMENT
POSITIONS, BUT TO ALL LEVELS OF GOVERNMENT OFFICE.  SEE GENERAL
MANAGER, S.R. CO. V. RANGACHARI, ALL INDIA RPTR.  1962 SUP.CT. 36. 

ARTICLES 330 AND 332 PROVIDE FOR THE RESERVATION OF SEATS FOR
SCHEDULED CASTES AND SCHEDULED TRIBES, EXCEPT FOR THE SCHEDULED TRIBES
IN THE TRIBAL AREAS OF ASSAM, IN THE HOUSE OF THE PEOPLE AND THE
LEGISLATIVE ASSEMBLY OF EVERY STATE.  ARTICLE 331 PROVIDES FOR THE
NOMINATION OF NOT MORE THAN TWO MEMBERS OF THE ANGLO-INDIAN COMMUNITY
IF THE PRESIDENT IS OF THE OPINION THAT THE COMMUNITY IS NOT ADEQUATELY
REPRESENTED IN THE HOUSE OF THE PEOPLE.  THE RESERVATION OF SEATS
MENTIONED ABOVE AND THE NOMINATION OF MEMBERS OF THE ANGLO-INDIAN
COMMUNITY IS TO CEASE AFTER 20 YEARS, VIZ., JANUARY 1970.  A
CONSTITUTIONAL AMENDMENT EXTENDING THAT TIME IS NOW BEFORE THE NATIONAL
PARLIAMENT AND THE LEGISLATURES OF THE SEVERAL STATES.  SEE INDIAN &
FOREIGN REVIEW, JAN. 1, 1970, P. 7. 

NORMAN C. AMAKER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE JACK GREENBERG AND ORZELL BILLINGSLEY, JR. 

LESLIE HALL ARGUED THE CAUSE FOR APPELLEES.  ON THE BRIEF WERE
MACDONALD GALLION, ATTORNEY GENERAL OF ALABAMA, AND ROBERT P. BRADLEY
AND JASPER B. ROBERTS, ASSISTANT ATTORNEYS GENERAL. 
..END :
















TURNER V. FOUCHE, 396 U.S. 346 


       TURNER ET AL. V. FOUCHE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF GEORGIA

        NO. 23.  ARGUED OCTOBER 20, 1969-- DECIDED JANUARY 19,
1970 


APPELLANTS, NEGRO RESIDENTS OF TALIAFERRO COUNTY, GEORGIA, BROUGHT
THIS ACTION TO CHALLENGE THE CONSTITUTIONALITY OF THE STATUTORY SYSTEM
USED IN TALIAFERRO AND MANY OTHER GEORGIA COUNTIES TO SELECT JURIES AND
SCHOOL BOARDS.  THE SCHEME PROVIDES FOR A COUNTY SCHOOL BOARD OF FIVE
FREEHOLDERS, WHICH IS SELECTED BY THE GRAND JURY, WHICH IN TURN IS
DRAWN FROM A JURY LIST SELECTED BY THE SIX COUNTY JURY COMMISSIONERS,
WHO ARE APPOINTED BY THE STATE SUPERIOR COURT JUDGE FOR THE CIRCUIT IN
WHICH THE COUNTY IS LOCATED.  ALTHOUGH THE POPULATION OF TALIAFERRO
COUNTY IS ABOUT 60% NEGRO, THE SCHOOL BOARD MEMBERS WERE WHITE,
SELECTED BY A PREDOMINANTLY WHITE GRAND JURY, WHICH HAD BEEN SELECTED
BY WHITE JURY COMMISSIONERS.  THE COMPLAINT ATTACKED GEORGIA'S
CONSTITUTIONAL AND STATUTORY PROVISIONS FOR SCHOOL-BOARD SELECTION AS
ACCOUNTING FOR THE EXCLUSION OF NEGROES AND NONFREEHOLDERS FROM THE
SCHOOL BOARD AND FOR THE MERELY TOKEN INCLUSION OF NEGROES ON THE GRAND
JURIES.  A THREE-JUDGE DISTRICT COURT, AFTER A HEARING, VOICED CONCERN
THAT ONLY 11 NEGROES WERE ON THE 130-MEMBER GRAND-JURY LIST AND
ADJOURNED TO ENABLE THE DEFENDANTS TO REMEDY THE SITUATION.  IT NOTED
THAT THERE WERE TWO SCHOOL-BOARD VACANCIES AND SUGGESTED THAT NEGROES
MIGHT BE SELECTED.  A NEW GRAND-JURY LIST WAS PREPARED CONTAINING THE
NAMES OF 44 NEGROES AND 77 WHITES, AND ONE OF THE SCHOOL-BOARD
VACANCIES WAS FILLED BY A NEGRO.  FROM THE GRAND-JURY LIST THE SUPERIOR
COURT JUDGE DREW NAMES LEADING TO THE IMPANELING OF A NEW GRAND JURY,
OF WHOSE 23 MEMBERS SIX WERE NEGROES.  TO OBTAIN THE NEW GRAND-JURY
ROLL, THE JURY COMMISSIONERS OBTAINED THE LIST OF 2,152 NAMES OF
REGISTERED VOTERS, AND AIDED BY THREE NEGROES, ELIMINATED MANY NAMES
FOR POOR HEALTH AND OLD AGE, UNDERAGE, DEATH, ABSENCE FROM THE COUNTY,
AND DUPLICATION, PLUS 225 WHOM THE COMMISSIONERS COULD OBTAIN NO
INFORMATION AND 178 (OF WHOM 171 WERE NEGROES) AS NOT MEETING STATUTORY
QUALIFICATIONS EITHER BECAUSE THEY WERE "UNINTELLIGENT" OR NOT "UPRIGHT
CITIZENS."  THE 608 NAMES LEFT WERE ALPHABETICALLY LISTED AND EVERY
OTHER ONE WAS PLACED ON THE LIST OF POTENTIAL JURORS.  OF THESE 304,
113 (37%) WERE NEGROES.  THE DISTRICT COURT FOUND THAT PRIOR TO THE
COMMENCEMENT OF THE SUIT NEGROES HAD BEEN SYSTEMATICALLY EXCLUDED FROM
GRAND JURIES THROUGH TOKEN INCLUSION BUT THAT THE NEW GRAND-JURY LIST
WAS CONSTITUTIONAL, AND IT DECLINED TO INVALIDATE ON THEIR FACE THE
PROVISIONS GOVERNING SCHOOL-BOARD AND GRAND-JURY SELECTIONS, OR THE
FREEHOLDER REQUIREMENT FOR SCHOOL-BOARD MEMBERSHIP.  THE COURT DID
ENJOIN THE JURY COMMISSIONERS FROM SYSTEMATICALLY EXCLUDING NEGROES
FROM THE GRAND-JURY SYSTEM.  HELD: 

1.  THE CONSTITUTIONAL AND STATUTORY SCHEME BY WHICH THE TALIAFERRO
COUNTY GRAND JURY SELECTS THE SCHOOL BOARD IS NOT UNCONSTITUTIONAL ON
ITS FACE, AS THE SCHEME IS NOT INHERENTLY UNFAIR, OR NECESSARILY
INCAPABLE OF ADMINISTRATION WITHOUT REGARD TO RACE.  CARTER V. JURY
COMMISSION, ANTE, P. 320.  PP. 353-355. 

2.  THE DISTRICT COURT ERRED IN ITS DETERMINATION THAT THE NEW GRAND
JURY LIST HAD BEEN PROPERLY COMPILED.  PP. 359-361. 

(A) THE UNDERREPRESENTATION OF NEGROES, AS REFLECTED BY THE FACT
THAT THE 304-MEMBER LIST FROM WHICH THE NEW GRAND JURY WAS DRAWN
CONTAINED ONLY 37% NEGROES COMPARED WITH 60% NEGROES IN THE COUNTY,
SHOULD, ABSENT A CONTRAVAILING EXPLANATION BY THE APPELLEES, WARRANT
CORRECTIVE ACTION BY A FEDERAL COURT CHARGED WITH ENFORCING
CONSTITUTIONAL GUARANTEES.  P. 359. 

(B) THE DISTRICT COURT SHOULD HAVE RESPONDED TO THE ELIMINATION OF 171
NEGROES OUT OF THE 178 CITIZENS DISQUALIFIED FOR LACK OF "INTELLIGENCE"
OR "UPRIGHTNESS," AS ON THIS RECORD IT CANNOT BE SAID THAT THIS PURGE
OF NEGROES DID NOT CONTRIBUTE SUBSTANTIALLY TO THE
UNDERREPRESENTATION.  PP. 359-360. 

(C) THE DISTRICT COURT SHOULD HAVE FOCUSED ON THE ELIMINATION OF THE
225 CITIZENS FOR LACK OFINFORMATION, AS INQUIRY MIGHT HAVE LED TO THE
DISCOVERY OF MANY NEGROES QUALIFIEDFORJURY SERVICE.  P. 360. 

(D) APPELLANTS MADE OUT A PRIMA FACIE CASE OF JURY DISCRIMINATION
AND THE BURDEN WHICH FELL ON THE APPELLEES TO OVERCOME IT WAS NOT MET. 
PP. 360-361. 

3.  APPELLANTS AND MEMBERS OF THEIR CLASS HAVE A CONSTITUTIONAL
RIGHT TO BE CONSIDERED FOR PUBLIC SERVICE WITHOUT THE BURDEN OF
INVIDIOUSLY DISCRIMINATORY QUALIFICATIONS, AND, ON THIS RECORD, THE
LIMITATION OF SCHOOL-BOARD MEMBERSHIP TO FREEHOLDERS VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 361-364. 

290 F.SUPP.  648, VACATED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE, A COMPANION TO CARTER V. JURY COMMISSION OF GREENE COUNTY,
ANTE, P. 320, INVOLVES A CHALLENGE TO THE CONSTITUTIONALITY OF THE
SYSTEM USED IN MANY COUNTIES OF GEORGIA TO SELECT JURIES AND SCHOOL
BOARDS.  THE BASIC STATUTORY SCHEME AT ISSUE IS THIS.  THE COUNTY BOARD
OF EDUCATION CONSISTS OF FIVE FREEHOLDERS.  /1/  IT IS SELECTED BY THE
GRAND JURY, /2/  WHICH IN TURN IS DRAWN FROM A JURY LIST SELECTED BY
THE SIX-MEMBER COUNTY JURY COMMISSION.  /3/  THE COMMISSIONERS ARE
APPOINTED BY THE JUDGE OF THE STATE SUPERIOR COURT FOR THE CIRCUIT IN
WHICH THE COUNTY IS LOCATED.  /4/ 

SOME 2,500 TO 3,000 PEOPLE LIVE IN TALIAFERRO COUNTY, GEORGIA, OF
WHOM ABOUT 60% ARE NEGROES.  /5/  THE COUNTY SCHOOL SYSTEM CONSISTS OF
A GRAMMAR SCHOOL AND A HIGH SCHOOL, AND ALL THE STUDENTS AT BOTH
SCHOOLS ARE NEGROES, EVERY WHITE PUPIL HAVING TRANSFERRED ELSEWHERE. 
/6/  SANDRA AND CALVIN TURNER, A NEGRO SCHOOLCHILD AND HER FATHER WHO
RESIDE IN THAT COUNTY, BROUGHT THIS CLASS ACTION AGAINST THE MEMBERS OF
THE COUNTY BOARD OF EDUCATION, THE JURY COMMISSIONERS, AND THREE NAMED
WHITE GRAND JURORS.  /7/  THEIR COMPLAINT ALLEGED THAT THE BOARD OF
EDUCATION CONSISTED ENTIRELY OF WHITE PEOPLE; THAT IT HAD BEEN SELECTED
BY A PREDOMINANTLY WHITE GRAND JURY, WHICH IN TURN HAD BEEN SELECTED BY
THE JURY COMMISSIONERS, ALL OF WHOM WERE WHITE PEOPLE.  THE COMPLAINT
CHARGED THAT THE BOARD OF EDUCATION HAD DEPRIVED THE NEGRO
SCHOOLCHILDREN OF TEXTBOOKS, FACILITIES, AND OTHER ADVANTAGES; ALSO
THAT THE TURNERS AND OTHER NEGRO CITIZENS HAD SOUGHT UNSUCCESSFULLY TO
COMMUNICATE THEIR DISSATISFACTION TO THE BOARD OF EDUCATION. 

ACCORDING TO THE APPELLANTS, THE MEMBERS OF THE COUNTY GRAND JURY,
ON WHICH WHITE PEOPLE WERE PERENNIALLY OVERREPRESENTED AND NEGROES
UNDERREPRESENTED, CHOSE ONLY WHITE PEOPLE AS MEMBERS OF THE BOARD OF
EDUCATION PURSUANT TO THE GEORGIA CONSTITUTIONAL AND STATUTORY
PROVISIONS GOVERNING THE SCHOOL-BOARD SELECTION.  THE COMPLAINT
ATTACKED THOSE PROVISIONS AS ACCOUNTING FOR BOTH THE EXCLUSION OF
NEGROES AND NONFREEHOLDERS FROM THE BOARD OF EDUCATION, AND FOR THE
MERELY TOKEN INCLUSION OF NEGROES ON THE GRAND JURIES.  THE APPELLANTS
SOUGHT (1) AN INJUNCTION PROHIBITING ENFORCEMENT OF THE GEORGIA
CONSTITUTIONAL ANDSTATUTORYPROVISIONS BY WHICH THE BOARD OF EDUCATION
AND GRAND JURY WERE SELECTED; (2) A DECLARATION THAT THE PROVISIONS
WERE VOID ON THEIR FACE AND AS APPLIED; (3) A FURTHER DECLARATION THAT
THE VARIOUS POSITIONS ON THE BOARD OF EDUCATION, GRAND JURY, AND JURY
COMMISSION WERE VACANT; (4) THE APPOINTMENT OF A RECEIVER FOR THE
SCHOOL SYSTEM AND A SPECIAL MASTER FOR THE SELECTION OF THE GRAND
JURORS; AND (5) $500,000 IN ANCILLARY DAMAGES. 

A THREE-JUDGE DISTRICT COURT WAS CONVENED PURSUANT TO 28 U.S.C. 2281
AND 2284, AND CONDUCTED EXTENSIVE EVIDENTIARY HEARINGS.  THE EVIDENCE
SHOWED THAT WHENEVER A JURY COMMISSIONER THOUGHT A VOTER FROM HIS AREA
OF THE COUNTY QUALIFIED AS A POTENTIALLY GOOD JUROR, HE OFFERED THE
NAME FOR CONSIDERATION TO HIS FELLOW COMMISSIONERS; IF ALL AGREED, THE
NAME WENT ON THE MASTER JURY LIST.  NO NAME OF A COUNTY RESIDENT WAS
PLACED ON THE LISTUNLESS HE WAS PERSONALLY KNOWN TO AT LEAST ONE OF THE
JURY COMMISSIONERS.  THE COMMISSIONERS LOOKED FOR "PEOPLE THAT WE FELT
WOULD BE CAPABLE OF INTERPRETING PROCEEDINGS OF COURT AND . . .
RENDERING) A JUST VERDICT . . . . "  THE STATE SUPERIOR COURT JUDGE HAD
INSTRUCTED THEM TO PUT NEGROES ON THE LIST.  FOLLOWING THE COMPILATION
OF THE LIST, THE COMMISSIONERS "PICKED THE ONES WE THOUGHT WERE THE
VERY BEST PEOPLE IN THE COUNTY" AND PUT THEM ON THE GRAND-JURY LIST. 
THE SUPERIOR COURT JUDGE THEN DREW THE NAMES OF THE GRAND JURORS AT
RANDOM IN OPEN COURT.  ONLY HE COULD EXCUSE FROM GRAND-JURY SERVICE
THOSE WHOSE NAMES HE DREW; AND HE DENIED THAT NEGROES WERE EVER EXCUSED
OUT OF TURN, OR ON ACCOUNT OF THEIR RACE. 

AT ITS FIRST HEARING, HELD IN JANUARY 1968, THE DISTRICT COURT
VOICED ITS CONCERN THAT ONLY 11 NEGROES HAD FOUND THEIR WAY TO THE 130
MEMBER GRAND-JURY LIST.  THE COURT ADJOURNED FOR ONE MONTH TO ENABLE
THE DEFENDANTS TO REMEDY THE SITUATION.  IT NOTED THAT TWO VACANCIES
HAD OPENED UP ON THE BOARD OF EDUCATION AND THAT, ALTHOUGH THE BOARD
HAD HELD AN INTERIM ELECTION, THE GRAND JURY HAD NOT YET CONFIRMED THE
NEW MEMBERS.  THE COURT SUGGESTED THAT "(IF THOSE TWO MEN WOULD
WILLINGLY STAND ASIDE THE OTHER MEMBERS MIGHT SELECT TWO OUTSTANDING
NEGRO CITIZENS . . . TO GO ON THE BOARD."  THE COURT ALSO ADVISED
COUNSEL FOR THE DEFENDANTS TO EXPLAIN THE LAW OF JURY DISCRIMINATION TO
HIS CLIENTS, AND EXPRESSED THE HOPE THAT THE JURY COMMISSIONERS WOULD
BE "GENEROUS" IN THEIR RECOMPOSITION OF THE PANEL. 

AT THE ADJOURNED HEARING IN FEBRUARY, IT APPEARED THAT THREE DAYS
AFTER THE FIRST HEARING THE STATE SUPERIOR COURT JUDGE HAD DISCHARGED
THE COUNTY GRAND JURY ANDDIRECTEDTHE JURY COMMISSIONERS TO RECOMPOSE
THE JURY LIST.  WORKING FROM THE VOTER REGISTRATION LIST AT THE LAST
GENERAL ELECTION, /8/  THE COMMISSIONERS HAD PREPARED A NEW GRAND-JURY
LIST CONTAINING THE NAMES OF 44 NEGROES AND 77 WHITE PEOPLE.  FROM THIS
LIST THE SUPERIOR COURT JUDGE DREW THE NAMES THAT LED TO THE IMPANELING
OF A NEW GRAND JURY OF 23 MEMBERS, OF WHOM ONLY SIX WERE NEGROES. 
MEANWHILE THE BOARD OF EDUCATION HAD ELECTED A NEGRO AND A WHITE MAN TO
FILL THE TWO VACANCIES, AND THE NEW GRAND JURY HAD CONFIRMED THE NEW
MEMBERS IN THEIR OFFICES. 

FOLLOWING THESE DEVELOPMENTS, THE DISTRICT COURT DECLINED TO
INVALIDATE ON THEIR FACE EITHER THE VARIOUS PROVISIONS GOVERNING THE
SCHOOL-BOARD AND GRAND-JURY SELECTIONS, OR THE FREEHOLDER REQUIREMENT
FOR SCHOOL-BOARD MEMBERSHIP.  IT FOUND THAT AT THE COMMENCEMENT OF SUIT
NEGROES HAD BEEN SYSTEMATICALLY EXCLUDED FROM THE GRAND JURIES THROUGH
TOKEN INCLUSION, BUT IT CONCLUDED THAT THE NEW GRAND-JURY LIST, DRAWN
FOLLOWING THE JANUARY HEARING, WAS NOT UNCONSTITUTIONAL.  290 F.SUPP. 
658.  /9/ 

SUBSEQUENTLY THE DISTRICT COURT ENTERED A FINAL JUDGMENT PERMANENTLY
ENJOINING THE DEFENDANT JURY COMMISSIONERS AND THEIR SUCCESSORS FROM
SYSTEMATICALLY EXCLUDING NEGROES FROM THE TALIAFERRO COUNTY GRAND-JURY
SYSTEM.  THE APPELLANTS, COMPLAINING OF THE COURT'S FAILURE TO HOLD THE
CHALLENGED PROVISIONS OF GEORGIA LAW INVALID ON THEIR FACE AND AS
APPLIED, TOOK A DIRECT APPEAL TO THIS COURT PURSUANT TO 28 U.S.C. 1253,
AND WE NOTED PROBABLE JURISDICTION, 393 U.S. 1078.  /10/

       I 

THE APPELLANTS URGE THAT THE CONSTITUTIONAL AND STATUTORY SCHEME BY
WHICH THE TALIAFERRO COUNTY GRAND JURY SELECTS THE BOARD OF EDUCATION
IS UNCONSTITUTIONAL ON ITS FACE.  THEY POINT TO THE DISCRETION OF THE
STATE SUPERIOR COURT JUDGE TO EXCLUDE ANYONE HE DEEMS NOT "DISCREET"
FROM APPOINTMENT TO THE JURY COMMISSION, /11/  AND OF THE JURY
COMMISSIONERS TO ELIMINATE FROM GRAND-JURY SERVICE ANYONE THEY FIND NOT
"UPRIGHT" AND "INTELLIGENT."  /12/  THESE PROVISIONS, THE APPELLANTS
SAY, PROVIDE THE COUNTY OFFICIALS AN OPPORTUNITY TO DISCRIMINATE
EXERCISED BOTH BEFORE AND AFTER THE COMMENCEMENT OF THIS LITIGATION. 
IT IS ARGUED THAT THE TERMS ARE SO VAGUE AS TO LEAVE THE JUDGE AND JURY
COMMISSIONERS AT LARGE IN THE EXERCISE OF DISCRETION, WITH THEIR
DECISIONS "UNGUIDED BY STATUTORY OR OTHER GUIDELINES."  ONLY BY
EXERCISING THE CHALLENGED TERMS FROM GEORGIA'S LAWS, IT IS URGED, CAN
THE JURY DISCRIMINATION REVEALED IN THE RECORD OF THIS CASE BE
ELIMINATED. 

SUCH ARGUMENTS ARE SIMILAR TO THOSE ADVANCED IN CARTER V. JURY
COMMISSION OF GREENE COUNTY, ANTE, P. 320.  OUR DECISION IN THAT CASE
FAIRLY CONTROLS DISPOSITION OF THE CONTENTIONS HERE.  GEORGIA'S
CONSTITUTIONAL AND STATUTORY SCHEME FOR SELECTING ITS GRAND JURIES AND
BOARDS OF EDUCATION IS NOT INHERENTLY UNFAIR, OR NECESSARILY INCAPABLE
OF ADMINISTRATION WITHOUT REGARD TO RACE; THE FEDERAL COURTS ARE NOT
POWERLESS TO REMEDY UNCONSTITUTIONAL DEPARTURES FROM GEORGIA LAW BY
DECLARATORY AND INJUNCTIVE RELIEF.  THE CHALLENGED PROVISIONS DO NOT
REFER TO RACE; INDEED, THEY IMPOSE ON THE JURY COMMISSIONERS THE
AFFIRMATIVE DUTY TO SUPPLEMENT THE JURY LISTS BY GOING OUT INTO THE
COUNTY AND PERSONALLY ACQUAINTING THEMSELVES WITH OTHER CITIZENS OF THE
COUNTY WHENEVER THE JURY LISTS IN EXISTENCE DO NOT FAIRLY REPRESENT A
CROSS SECTION OF THE COUNTY'S UPRIGHT AND INTELLIGENT CITIZENS.  /13/ 

BUT THE APPELLANTS CONTEND THAT EVEN IF THE CHALLENGED PROVISIONS
ARE NOT VOID ON THEIR FACE, THEY HAVE BEEN UNCONSTITUTIONALLY APPLIED. 
THE DISTRICT COURT FOUND THAT PRIOR TO THE COMMENCEMENT OF SUIT NEGROES
HAD BEEN EXCLUDED IN THE ADMINISTRATION OF THE GRAND-JURY SYSTEM,ANDTHE
APPELLEES DO NOT CONTEST THAT FINDING HERE.  /14/  THE DISTRICT COURT
ALSO CONCLUDED THAT THE NEWLY COMPOSED GRAND-JURY LIST WAS
CONSTITUTIONAL, AND THE APPELLANTS CHALLENGE THAT RULING. 
CONSIDERATION OF THE ISSUES THUS PRESENTED REQUIRES A FULLER STATEMENT
OF THE EVENTS FOLLOWING THE JANUARY HEARING IN THE COURT BELOW. 

AS NOTED ABOVE, THE DISTRICT COURT HAD HELD ITS FIRST HEARING, THE
STATE SUPERIOR COURT JUDGE DISCHARGED THE GRAND JURY THEN SITTING AND
ORDERED THE JURY COMMISSIONERS TO DRAW UP A NEW JURY LIST.  THE
COMMISSIONERS OBTAINED THE LIST OF ALL PERSONS REGISTERED TO VOTE IN
THE COUNTY IN THE LAST GENERAL ELECTION-- 2,152 NAMES.  TO ASSIST IN
THE IDENTIFICATION OF ALL THE PEOPLE ON THE LIST, THE COMMISSIONERS
CONSULTED WITH "THREE NEGROES THAT (THEY) BROUGHT IN TO WORK WITH
(THEM) ONE AFTERNOON . . . . "  FROM THE LIST THE COMMISSIONERS
ELIMINATED 374 PEOPLE FOR POOR HEALTH AND OLD AGE; 79 AS UNDER 21 YEARS
OLD; /15/  93 AS DEAD; 514 AS AWAY FROM THE COUNTY MOST OF THE TIME BUT
MAINTAINING A PERMANENT PLACE OF RESIDENCE THERE; 48 WHO REQUESTED THAT
THEY BE REMOVED FROM CONSIDERATION; 225 ABOUT WHOM THE COMMISSIONERS
COULD OBTAIN NO INFORMATION; 33 AS DUPLICATED NAMES; AND 178 "AS NOT
CONFORMING TO THE STATUTORY QUALIFICATIONS FOR JURIES EITHER BECAUSE OF
THEIR BEING UNINTELLIGENT OR BECAUSE OF THEIR NOT BEING UPRIGHT
CITIZENS." 

THE PROCESS OF ELIMINATION LEFT 608 NAMES.  THE COMMISSIONERS
ARRANGED THE NAMES IN ALPHABETICAL ORDER AND PLACED EVERY OTHER ONE ON
THE LIST OF POTENTIAL JURORS.  AT THIS POINT, FOR THE FIRST TIME, THE
COMMISSIONERS CLASSIFIED THE REMAINING 304 PEOPLE BY RACE:  113 WERE
NEGRO, 191 WHITE PEOPLE.  FROM THIS LIST THE COMMISSIONERS DREW TWO
FIFTHS OF THE NAMES BY LOT FOR THE GRAND-JURY LIST; A CHECK REVEALED 44
NEGROES AND 77 WHITE PEOPLE.  THE STATE SUPERIOR COURT JUDGE DREW FROM
THIS GROUP NINE NEGROES AND 23 WHITE PEOPLE BY LOT.  HE EXCUSED NINE,
LEAVING A 23-MEMBER GRAND JURY OF WHOM ONLY SIX WERE NEGROES.  /16/  IT
WAS THIS GRAND JURY THAT THE DISTRICT COURT DETERMINED HAD BEEN
CONSTITUTIONALLY IMPANELED. 

AFTER THE FEBRUARY HEARING OF THE DISTRICT COURT, AND AT THAT
COURT'S REQUEST, THE COMMISSIONERS CLASSIFIED BY RACE THE PERSONS
ELIMINATED FROM THE VOTER LIST IN ARRIVING AT THE 608 PERSONS ELIGIBLE
FOR JURY SERVICE.  THE CLASSIFICATION REVEALED THAT 171 OF THOSE
REJECTED AS UNINTELLIGENT OR NOT UPRIGHT WERE NEGROES-- 96% OF THE
TOTAL REMOVED FOR THAT REASON.  /17/  ALTHOUGH AT THE ADJOURNED HEARING
THE DISTRICT COURT RECOGNIZED THE POTENTIAL FOR DISCRIMINATION
UNDERLYING THE EXCLUSION PROCESS, IT DID NOT REOPEN THE MATTER
FOLLOWING ITS RECEIPT OF THE RACIAL CLASSIFICATION TO CONSIDER THE
EXTRAORDINARILY HIGH PERCENTAGE OF NEGROES ELIMINATED AS
"UNINTELLIGENT" OR NOT "UPRIGHT," OR THE LARGE NUMBER OF PERSONS ABOUT
WHOM THE COMMISSIONERS SAID THEY COULD OBTAIN NO INFORMATION EVEN
THOUGH THEY WERE REGISTERED TO VOTE IN THE COUNTY. 

THE APPELLANTS INSIST THE DISTRICT COURT HAS ERRED.  THEY SAY THAT
SINCE THE GRAND JURY SELECTS THE BOARD OF EDUCATION, THE SITUATION MUST
BE VIEWED AS ONE INVOLVING A DISTRIBUTION OF VOTING POWER AMONG THE
CITIZENS OF TALIAFERRO COUNTY IN THE MANNER OF A VOTING APPORTIONMENT
CASE.  A GRAND JURY WITH ONLY ABOUT 25% NEGRO MEMBERSHIP, THEY SAY,
CONSTITUTES THE SCHOOL-BOARD "ELECTORATE" IN A COUNTY WHOSE POPULATION
IS ABOUT 60% NEGRO.  THE STATE MUST OFFER A COMPELLING JUSTIFICATION,
IT IS ARGUED, IN SUPPORT OF ITS "FENCING OUT" SUCH A SUBSTANTIAL
PROPORTION OF THE POTENTIAL NEGRO "ELECTORS" IN THE COUNTY. 

WE DO NOT FIND IT NECESSARY TO CONSIDER THE APPELLANTS' ARGUMENT. 
NOR DO WE REACHTHEPREMISE UPON WHICH IT RESTS-- THAT THE CHOICE OF THE
COUNTY BOARD OF EDUCATION BY THE GRAND JURY RATHER THAN DELEGATES FROM
LOCAL SCHOOL BOARDS TURNS THE CHALLENGED PROCEDURE INTO AN "ELECTION"
FOR FEDERAL CONSTITUTIONAL PURPOSES.  /18/  FOR WE THINK THAT EVEN
UNDER LONG-ESTABLISHED TESTS FOR RACIAL DISCRIMINATION IN THE
COMPOSITION OF JURIES, THE DISTRICT COURT ERRED IN ITS DETERMINATION
THAT THE NEW LIST BEFORE IT HAD BEEN PROPERLY COMPILED. 

THE UNDISPUTED FACT WAS THAT NEGROES COMPOSED ONLY 37% OF THE
TALIAFERRO COUNTY CITIZENS ON THE 304-MEMBER LIST FROM WHICH THE NEW
GRAND JURY WAS DRAWN.  THAT FIGURE CONTRASTS SHARPLY WITH THE
REPRESENTATION THAT THEIR PERCENTAGE (60%) OF THE GENERAL TALIAFERRO
COUNTY POPULATION WOULD HAVE LED THEM TO OBTAIN IN A RANDOM SELECTION. 
IN THE ABSENCE OF A CONTERVAILING EXPLANATION BY THE APPELLEES, WE
CANNOT SAY THAT THE UNDERREPRESENTATION REFLECTED IN THESE FIGURES IS
SO INSUBSTANTIAL AS TO WARRANT NO CORRECTIVE ACTION BY A FEDERAL COURT
CHARGED WITH THE RESPONSIBILITY OF ENFORCING CONSTITUTIONAL
GUARANTEES.     SPECIFICALLY, WE HOLD THAT THE DISTRICT COURT SHOULD
HAVE RESPONDED TO THE ELIMINATION OF 171 NEGROES OUT OF THE 178
CITIZENS DISQUALIFIED FOR LACK OF "INTELLIGENCE" OR "UPRIGHTNESS."  ON
THE RECORD AS PRESENTLY CONSTITUTED, IT IS IMPOSSIBLE TO SAY THAT THIS
PURGE OF NEGROES FROM THE ROSTER OF POTENTIAL JURORS DID NOT CONTRIBUTE
IN SUBTANTIAL MEASURE TO THE ULTIMATE UNDERREPRESENTATION.  THE
RETENTION OF THESE 178 CITIZENS MIGHT WELL HAVE PRODUCED A JURY LIST OF
AT LEAST AN EQUAL PERCENTAGE OF NEGROES AND WHITE PEOPLE, INSTEAD OF
THE HIGHLY DISPROPORTIONATE LIST THAT ACTUALLY MATERIALIZED. 

A SECOND FACTOR SHOULD HAVE CALLED ITSELF TO THE DISTRICT COURT'S
ATTENTION:  THE LACK OF INFORMATION RESPECTING THE 225 CITIZENS NAMED
ON THE COUNTY'S VOTING LIST BUT UNKNOWN TO THE JURY COMMISSIONERS OR
THEIR ASSISTANTS.  ENTIRELY APART FROM THE QUESTION WHETHER THE
COMMISSIONERS' FAILURE TO INQUIRE INTO THE ELIGIBILITY OF THE 225
VOTERS COMPORTED WITH THEIR STATUTORY DUTY TO ENSURE THAT THE JURY LIST
FAIRLY REPRESENTS A CROSS-SECTION OF THE COUNTY'S INTELLIGENT AND
UPRIGHT CITIZENS, /19/  THE COURT SHOULD NOT HAVE PASSED WITHOUT
RESPONSE THE COMMISSIONERS' ELIMINATION FROM CONSIDERATION FOR JURY
SERVICE OF ABOUT 9% OF THE POPULATION OF THE ENTIRE COUNTY.  IN THE
FACE OF THE COMMISSIONERS' UNFAMILIARITY WITH NEGROES IN THE COMMUNITY
AND THE INFORMALITY OF THE ARRANGEMENT BY WHICH THEY SOUGHT TO REMEDY
THE DEFICIENCY IN THEIR KNOWLEDGE UPON RECOMPILING THE JURY LIST, WE
CANNOT ASSUME THAT INQUIRY WOULD NOT HAVE LED TO THE DISCOVERY OF MANY
QUALIFIED NEGROES. 

IN SUM, THE APPELLANTS DEMONSTRATED A SUBSTANTIAL DISPARITY BETWEEN
THE PERCENTAGES OF NEGRO RESIDENTS IN THE COUNTY AS A WHOLE AND OF
NEGROES ON THE NEWLY CONSTITUTED JURY LIST.  THEY FURTHER DEMONSTRATED
THAT THE DISPARITY ORIGINATED, AT LEAST IN PART, AT THE ONE POINT IN
THE SELECTION PROCESS WHERE THE JURY COMMISSIONERS INVOKED THEIR
SUBJECTIVE JUDGMENT RATHER THAN OBJECTIVE CRITERIA.  THE APPELLANTS
THEREBY MADE OUT A PRIMA FACIE CASE OF JURY DISCRIMINATION, AND THE
BURDEN FELL ON THE APPELLEES TO OVERCOME IT.  /20/ 

THE TESTIMONY OF THE JURY COMMISSIONERS AND THE SUPERIOR COURT JUDGE
THAT THEY INCLUDED OR EXCLUDED NO ONE BECAUSE OF RACE DID NOT SUFFICE
TO OVERCOME THE APPELLANTS' PRIMA FACIE CASE.  /21/  SO FAR THE
APPELLEES HAVE OFFERED NO EXPLANATION FOR THE OVERWHELMING PERCENTAGE
OF NEGROES DISQUALIFIED AS NOT "UPRIGHT" OR "INTELLIGENT,"  OR FOR THE
FAILURE TO DETERMINE THE ELIGIBILITY OF A SUBSTANTIAL SEGMENT OF THE
COUNTY'S ALREADY REGISTERED VOTERS.  NO EXPLANATION FOR THIS STATE OF
AFFAIRS APPEARS IN THE RECORD.  THE EVIDENTIARY VOID DEPRIVES THE
DISTRICT COURT'S HOLDING OF SUPPORT IN THE RECORD AS PRESENTLY
CONSTITUTED.  "IF THERE IS A 'VACUUM' IT IS ONE WHICH THE STATE MUST
FILL, BY MOVING IN WITH SUFFICIENT EVIDENCE TO DISPEL THE PRIMA
FACIECASEOF DISCRIMINATION."  /22/

        II 

THE APPELLANTS ALSO URGE THAT THE LIMITATION OF SCHOOL-BOARD
MEMBERSHIP TO FREEHOLDERS VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  /23/  THE DISTRICT COURT REJECTED THIS CLAIM,
FINDING NO EVIDENCE BEFORE IT "TO INDICATE THAT SUCH A QUALIFICATION
RESULTED IN AN INVIDIOUS DISCRIMINATION AGAINST ANY PARTICULAR SEGMENT
OF THE COMMUNITY, BASED ON RACE OR OTHERWISE."  290 F.SUPP.,AT 652. 

SUBSEQUENT TO THE RULING OF THE DISTRICT COURT, THIS COURT DECIDED
KRAMER V. UNION FREE SCHOOL DISTRICT, 395 U.S. 621, AND CIPRIANO V.
CITY OF HOUMA, 395 U.S. 701.  THE APPELLANTS URGE THAT THOSE DECISIONS
REQUIRE GEORGIA TO DEMONSTRATE A "COMPELLING" INTEREST IN SUPPORT OF
ITS FREEHOLDER REQUIREMENT FOR SCHOOL-BOARD MEMBERSHIP.  THE APPELLEES
REPLY THAT KRAMER AND CIPRIANO ARE INAPPOSITE BECAUSE THEY INVOLVED
EXCLUSIONS FROM VOTING, NOT FROM OFFICE-HOLDING.  WE FIND IT
UNNECESSARY TO RESOLVE THE DISPUTE, BECAUSE THE GEORGIA FREEHOLDER
REQUIREMENT MUST FALL EVEN WHEN MEASURED BY THE TRADITIONAL TEST FOR A
DENIAL OF EQUAL PROTECTION:  WHETHER THE CHALLENGED CLASSIFICATION
RESTS ON GROUNDS WHOLLY IRRELEVANT TO THE ACHIEVEMENT OF A VALID STATE
OBJECTIVE.  /24/ 

WE MAY ASSUME THAT THE APPELLANTS HAVE NO RIGHT TO BE APPOINTED TO
THE TALIAFERRO COUNTY BOARD OF EDUCATION.  /25/  BUT THE APPELLANTS AND
THE MEMBERS OF THEIR CLASS DO HAVE A FEDERAL CONSTITUTIONAL RIGHT TO BE
CONSIDERED FOR PUBLIC SERVICE WITHOUT THE BURDEN OF INVIDIOUSLY
DISCRIMINATORY DISQUALIFICATIONS.  /26/  THE STATE MAY NOT DENY TO SOME
THE PRIVILEGE OF HOLDING PUBLIC OFFICE THAT IT EXTENDS TO OTHERS ON THE
BASIS OF DISTINCTION THAT VIOLATE FEDERAL CONSTITUTIONAL GUARANTEES. 
/27/ 

GEORGIA CONCEDES THAT "THE DESIRABILITY AND WISDOM OF 'FREEHOLDER'
REQUIREMENTS FOR STATE OR COUNTY POLITICAL OFFICE MAY INDEED BE OPEN TO
QUESTION . . . . "  BUT APART FROM ITS CONTENTION THAT PRIOR DECISIONS
OF THIS COURT FORECLOSE ANY CHALLENGE TO THE CONSTITUTIONALITY OF SUCH
"FREEHOLDER" REQUIREMENTS-- A CONTENTION WE THINK ILL-FOUNDED /28/  --
THE SOLE ARGUMENT GEORGIA ADVANCES IN SUPPORT OF ITS STATUTE IS THAT
NOTHING IN ITS CONSTITUTION OR LAWS SPECIFIES ANY MINIMUM QUANTITY OR
VALUE FOR THE REAL PROPERTY THE FREEHOLDER MUST OWN.  THUS, SAYS
GEORGIA, ANYONE WHO SERIOUSLY ASPIRES TO COUNTY SCHOOL-BOARD MEMBERSHIP
"WOULD BE ABLE TO OBTAIN A CONVEYANCE OF THE SINGLE SQUARE INCH OF LAND
HE WOULD REQUIRE TO BECOME A 'FREEHOLDER.'" 

IF WE TAKE GEORGIA AT ITS WORD, IT IS DIFFICULT TO CONCEIVE OF ANY
RATIONAL STATE INTEREST UNDERLYING ITS REQUIREMENT.  BUT EVEN ABSENT
GEORGIA'S OWN INDICATION OF THE INSUBSTANTIALITY OF ITS INTEREST IN
PRESERVING THE FREEHOLDER REQUIREMENT, IT SEEMS IMPOSSIBLE TO DISCERN
ANY INTEREST THE QUALIFICATION CAN SERVE.  IT CANNOT BE SERIOUSLY URGED
THAT A CITIZEN IN ALL OTHER RESPECTS QUALIFIED TO SIT ON A SCHOOL BOARD
MUST ALSO OWN REAL PROPERTY IF HE IS TO PARTICIPATE RESPONSIBLY IN
EDUCATIONAL DECISIONS, WITHOUT REGARD TO WHETHER HE IS A PARENT WITH
CHILDREN IN THE LOCAL SCHOOLS, A LESSEE WHO EFFECTIVELY PAYS THE
PROPERTY TAXES OF HIS LESSOR AS PART OF HIS RENT, OR A STATE AND
FEDERAL TAXPAYER CONTRIBUTING TO THE APPROXIMATELY 85% OF THE
TALIAFERRO COUNTY ANNUAL SCHOOL BUDGET DERIVED FROM SOURCES OTHER THAN
THE BOARD OF EDUCATION'S OWN LEVY ON REAL PROPERTY. 

NOR DOES THE LACK OF OWNERSHIP OF REALTY ESTABLISH A LACK OF
ATTACHMENT TO THE COMMUNITY AND ITS EDUCATIONSL VALUES.  HOWEVER
REASONABLE THE ASSUMPTION THAT THOSE WHO OWN REALTY DO POSSESS SUCH AN
ATTACHMENT, GEORGIA MAY NOT RATIONALLY PRESUME THAT THAT QUALITY IS
NECESSARILY WANTING IN ALL CITIZENS OF THE COUNTY WHOSE ESTATES ARE
LESS THAN FREEHOLD.  /29/  WHATEVER OBJECTIVE GEORGIA SEEKS TO OBTAIN
BY ITS "FREEHOLDER" REQUIREMENT MUST BE SECURED, IN THIS INSTANCE AT
LEAST, BY MEANS MORE FINELY TAILORED TO ACHIEVE THE DESIRED GOAL.  /30/
WITHOUT EXCLUDING THE POSSIBILITY THAT OTHER CIRCUMSTANCES MIGHT
PRESENT THEMSELVES IN WHICH A PROPERTY QUALIFICATION FOR OFFICE-HOLDING
COULD SURVIVE CONSTITUTIONAL SCRUTINY, WE CANNOT SAY, ON THE RECORD
BEFORE US, THAT THE PRESENT FREEHOLDER REQUIREMENT FOR MEMBERSHIP ON
THE COUNTY BOARD OF EDUCATION AMOUNTS TO ANYTHING MORE THAN INVIDIOUS
DISCRIMINATION. 

THE JUDGMENT BELOW IS VACATED, AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  GA. CONST., ART. VIII, SEC. V, PARA. I, GA. CODE ANN. SEC. 2
6801 (1948).  AT THE ORAL ARGUMENT WE WERE ADVISED THAT UNDER GEORGIA
LAW A "FREEHOLDER" IS ANY PERSON WHO OWNS REAL ESTATE. 

/2/  IBID.  SEE ALSO GA. CODE ANN. SEC. 32-902 (1969). 

/3/  GA. CODE ANN. SECS. 59-101, 59-106 (1965 AND SUPP. 1968). 

/4/  GA. CODE ANN. SEC. 59-101 (1965).  PRIOR TO 1966 THE SUPERIOR
COURT JUDGES WERE ELECTED BY ALL THE VOTERS IN THE STATE, BUT NOW THEY
ARE ELECTED BY THE VOTERS OF THE CIRCUITS OVER WHICH THEY HAVE
JURISDICTION.  SEE GA. CONST., ART. VI, SEC. III, PARA. II, GA. CODE
ANN. SEC. 2-3802 (SUPP. 1968); STOKES V. FORTSON, 234 F.SUPP.  575. 

/5/  IN ITS BRIEF GEORGIA INFORMS US THAT ITS DEPARTMENT OF PUBLIC
HEALTH ESTIMATES THAT TALIAFERRO COUNTY NOW HAS ABOUT 1,500 NEGRO AND
1,000 WHITE CITIZENS.  ACCORDING TO THE 1960 FEDERAL CENSUS, THE COUNTY
HAD A POPULATION OF 3,370, OF WHOM 2,096 WERE NEGROES AND 1,273 WHITE
PEOPLE.  U.S. DEPT. OF COMMERCE, BUREAU OF THE CENSUS, 1960 CENSUS OF
POPULATION, VOL. I, CHARACTERISTICS OF THE POPULATION, PT. 12, GEORGIA,
12-83. 

/6/  THIS STATE OF AFFAIRS HAS ARISEN FOLLOWING LITIGATION ATTACKING
THE COUNTY'S FORMER DUAL SCHOOL SYSTEM.  PRIOR TO THE FALL OF 1965
TALIAFERRO COUNTY HAD USED ONE SCHOOL BUILDING FOR NEGROES AND THE
OTHER FOR WHITES.  IN THAT YEAR, AFTER 87 NEGRO PUPILS SOUGHT TRANSFERS
TO A DESEGREGATED SCHOOL, THE SUPERINTENDENT, KNOWING THE WHITE SCHOOL
WOULD BE CLOSED, ARRANGED FOR THE TRANSFER OF THE WHITE PUPILS, AT
PUBLIC EXPENSE, TO PUBLIC SCHOOLS IN ADJOINING COUNTIES.  A THREE-JUDGE
DISTRICT COURT DECLARED THE ARRANGEMENT ILLEGAL, PLACED THE TALIAFERRO
COUNTY SCHOOL SYSTEM IN RECEIVERSHIP UNDER THE STATE'S SUPERINTENDENT
OF SCHOOLS, AND INSTRUCTED HIM TO PREPARE A PLAN THAT WOULD ALLOW THOSE
NEGROES WHO WANTED TO TRANSFER TO A DESEGREGATED SCHOOL THE OPPORTUNITY
TO DO SO.  TURNER V. GOOLSBY, 255 F.SUPP.  724.  IT IS UNDISPUTED THAT
SOME WHITE PUPILS NOW ATTEND A PRIVATE INSTITUTION IN THE COUNTY.  IN
ADDITION, THE APPELLANTS SUGGEST THAT WHITE CHILDREN CONTINUE TO ATTEND
PUBLIC SCHOOLS IN NEIGHBORING COUNTIES.  EFFORTS TO COMBINE DISTRICTS
TO AVOID AN ALL-NEGRO SCHOOL SYSTEM IN TALIAFERRO COUNTY HAVE PROVED
UNSUCCESSFUL. 

/7/  THE DISTRICT COURT STRUCK THE GRAND JURORS AS PARTIES DEFENDANT
FOR FAILURE OF THE APPELLANTS TO STATE AS AGAINST THEM A CLAIM UPON
WHICH RELIEF COULD BE GRANTED.  THE APPELLANTS DID NOT APPEAL FROM THAT
PORTION OF THE JUDGMENT BELOW, AND THE MOTION OF THE APPELLEE GRAND
JURORS TO DISMISSTHEAPPEAL AS TO THEM IS GRANTED. 

/8/  GEORGIA HAS USED THE VOTER REGISTRATION LISTS RATHER THAN THE
BOOKS OF THE TAX RECEIVER SINCE OUR DECISION IN WHITUS V. GEORGIA, 385
U.S. 545. 

/9/  THE DISTRICT COURT FOUND THAT THE APPELLANTS' CLAIM THAT THE
BOARD OF EDUCATION HAD DEPRIVED THE NEGRO SCHOOLCHILDREN OF TEXTBOOKS,
FACILITIES, AND OTHER ADVANTAGES FAILED FOR WANT OF PROOF.  THE COURT
ALSO DECLINED TO REACH THE APPELLANTS' CLAIM FOR ANCILLARY DAMAGES,
LEAVING THIS QUESTION TO SINGLE-JUDGE INQUIRY.  NO ISSUE CONCERNING
THESE RULINGS IS PRESENTED ON THE APPEAL. 

/10/  WE REJECT THE APPELLEES' SUGGESTION THAT WE LACK JURISDICTION
TO ENTERTAIN AN APPEAL FROM THE DISTRICT COURT ON THE THEORY THAT A
COURT OF THREE JUDGES WAS NOT REQUIRED UNDER 28 U.S.C. 2281 BECAUSE THE
APPELLANTS SOUGHT TO ENJOIN ONLY THE ACTS OF COUNTY OFFICIALS.  THE
JURY COMMISSIONERS AND MEMBERS OF THE BOARD OF EDUCATION WERE
"FUNCTIONING PURSUANT TO A STATEWIDE POLICY AND PERFORMING A STATE
FUNCTION," MOODY V. FLOWERS, 387 U.S. 97, 102; CF. SPIELMAN MOTOR SALES
CO. V. DODGE, 295 U.S. 89, 92-95; AND SEE DUSCH V. DAVIS, 387 U.S. 112,
114; SAILORS V. BOARD OF EDUCATION, 387 U.S. 105, 107.  THE APPELLANTS
CANNOT BE DENIED A THREE-JUDGE COURT BELOW AND DIRECT REVIEW HERE
SIMPLY BECAUSE GEORGIA CHOOSES TO DENOMINATE AS "LOCAL" OR "COUNTY" THE
OFFICIALS TO WHOM IT HAS ENTRUSTED THE ADMINISTRATION OF THE CHALLENGED
CONSTITUTIONAL AND STATUTORY PROVISIONS.  RORICK V. BOARD OF
COMMISSIONERS, 307 U.S. 208, 212; CF. CITY OF CLEVELAND V. UNITED
STATES, 323 U.S. 329, 332. 

UNDER GEORGIA LAW TALIAFERRO COUNTY MAY REPLACE THE CONSTITUTIONAL
AND STATUTORY ARRANGEMENT BY WHICH THE GRAND JURY ELECTS THE BOARD OF
EDUCATION WITH THE DIRECT ELECTION OF THE BOARD BY THE QUALIFIED VOTERS
OF THE COUNTY UPON THE ENACTMENT OF A LOCAL OR SPECIAL LAW BY THE
LEGISLATURE AND ITS APPROVAL IN A REFERENDUM BY A MAJORITY OF THE
QUALIFIED VOTERS.  GA. CONST., ART. VIII, SEC. V, PARA. 2, GA. CODE
ANN. SEC. 2-6802 (SUPP. 1968).  BUT GEORGIA DOES NOT SUGGEST THAT SO
MANY COUNTIES HAVE TAKEN ADVANTAGE OF THIS PROVISION THAT THE PRESENT
SELECTION OF THE BOARD BY THE GRAND JURY IN EFFECT AMOUNTS TO A LOCAL
OPTION. 

THE APPELLEES ALSO PROPOSE A DISTINCTION BETWEEN ATTACKS ON STATUTES
AND ATTACKS UPON THE RESULTS OF THEIR ADMINISTRATION, AND URGE THAT THE
APPELLANTS' CASE COMES WITHIN THE LATTER CATEGORY.  BUT THIS ARGUMENT
OVERLOOKS THE LINE, DELINEATED BY OUR PAST DECISIONS, THAT FALLS
BETWEEN A PETITION FOR INJUNCTION ON THE GROUND OF THE
UNCONSTITUTIONALITY OF A STATUTE, EITHER ON ITS FACE OR AS APPLIED,
WHICH REQUIRES A THREE-JUDGE COURT, AND A PETITION SEEKING AN
INJUNCTION ON THE GROUND OF THE UNCONSTITUTIONALITY OF THE RESULT
OBTAINED BY THE USE OF A STATUTE NOT ATTACKED AS UNCONSTITUTIONAL. 
LOUISIANA V. UNITED STATES, 380 U.S. 145, 150 AND N. 9; QUERY V. UNITED
STATES, 316 U.S. 486, 489; EX PARTE BRANSFORD, 310 U.S. 354, 361;
STRATTON V. ST. LOUIS S.W.R. CO., 282 U.S. 10, 15; EX PARTE HOBBS, 280
U.S. 168, 172. 

SIMILARLY, WE REJECT THE APPELLEES' CONTENTION, ANCILLIARY TO THEIR
BASIC ATTACK ON OUR JURISDICTION, THAT THE THREE-JUDGE COURT WAS
IMPROPERLY CONVENED BECAUSE OF THE INSUBSTANTIALITY OF THE APPELLANTS'
CHALLENGE TO THE GEORGIA LAWS.  SWIFT & CO. V. WICKHAM, 382 U.S. 111,
115; IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN, 370 U.S. 713, 715
(PER CURIAM); CALIFORNIA WATER SERVICE CO. V. CITY OF REDDING, 304 U.S.
252, 255 (PER CURIAM); EX PARTE PORESKY, 290 U.S. 30, 32 (PER CURIAM). 
FURTHER, THE DISTRICT COURT PROPERLY ENTERTAINED THE QUESTION WHETHER
THE CONSTITUTIONAL AND STATUTORY COMPLEX, EVEN IF NOT INVALID ON ITS
FACE, WAS UNCONSTITUTIONALLY ADMINISTERED.  WITHOUT REGARD TO WHETHER
THAT ISSUE WAS ONE BY ITSELF WARRANTING A THREE-JUDGE COURT, SEE EX
PARTE BRANSFORD, SUPRA; CURRIE, THE THREE-JUDGE DISTRICT COURT IN
CONSTITUTIONAL LITIGATION, 32 U.CHI.L.REV.  1, 37-50, IT RELATED TO THE
APPELLANTS' CLAIM THAT GEORGIA'S SCHOOL-BOARD SELECTION PROCEDURE WAS
UNLAWFUL ON ITS FACE.  FLAST V. COHEN, 392 U.S. 83, 90-91; ZEMEL V.
RUSK, 381 U.S. 1, 5-6; UNITED STATES V. GEORGIA PUB. SERV. COMMISSION,
371 U.S. 285, 287-288; PAUL V. UNITED STATES, 371 U.S. 245, 249-250;
FLORIDA LIME & AVOCADO GROWERS, INC. V. JACOBSEN, 362 U.S. 73, 75-85;
LOUISVILLE & N.R. CO. V. GARRETT, 231 U.S. 298, 303-304.     /11/  GA.
CODE ANN. SEC. 59-101 (1965). 

/12/  GA. CODE ANN. SEC. 59-106 (SUPP. 1968). 

/13/  IBID.     OUR DECISIONS IN AVERY V. GEORGIA, 345 U.S. 559, AND
WHITUS V. GEORGIA, 385 U.S. 545, CANNOT AID THE APPELLANTS.  IN AVERY
WE REVERSED A JUDGMENT OF CONVICTION WHERE THE NAMES OF PROSPECTIVE
PETIT JURORS HAD BEEN PRINTED ON DIFFERENTLY COLORED TICKETS ACCORDING
TO THEIR RACE-- WHITE TICKETS FOR WHITE PEOPLE, AND YELLOW TICKETS FOR
NEGROES.  A STATE SUPERIOR COURT JUDGE DREW THE NAMES FROM THE JURY BOX
AND HANDED THEM TO THE SHERIFF, WHO ENTRUSTED THEM TO THE COURT CLERK
FOR ARRANGING THE TICKETS AND TYPING UP THE LIST OF PERSONS TO BE
CALLED TO SERVE ON THE PANEL.  WE FOUND THAT THE USE OF THE WHITE AND
YELLOW TICKETS MADE IT EASIER "FOR THOSE TO DISCRIMINATE WHO ARE OF A
MIND TO DISCRIMINATE," AND THAT EVEN IF THE JUDGE HAD DRAWN THE NAMES
WITHOUT LOOKING TO SEE THE COLOR OF THE TICKETS, "OPPORTUNITY WAS
AVAILABLE TO RESORT TO (DISCRIMINATION) AT OTHER STAGES IN THE
SELECTION PROCESS."  345 U.S.,AT 562. 

WHITUS INVOLVED A REFINEMENT OF THE PROCESS WE HAD CONDEMNED IN
AVERY.  IN WHITUS THE JURY COMMISSIONERS MADE UP THE JURY LIST FROM
WHICH BOTH TRAVERSE AND GRAND JURORS WERE SELECTED BY REFERENCE TO THE
TAX DIGEST, WHICH WAS SEGREGATED INTO SECTIONS-- ONE WITH WHITE SHEETS
FOR WHITE PEOPLE AND THE OTHER WITH YELLOW SHEETS FOR NEGROES-- AND TO
AN OLD JURY LIST REQUIRED BY FORMER LAW TO BE MADE UP FROM THE TAX
DIGEST.  WE CONCLUDED THAT "(UNDER SUCH A SYSTEM THE OPPORTUNITY FOR
DISCRIMINATION WAS PRESENT," AND ON THE RECORD BEFORE US WE COULD NOT
SAY THAT THAT OPPORTUNITY "WAS NOT RESORTED TO BY THE COMMISSIONERS." 
385 U.S.,AT 552. 

IN BOTH AVERY AND WHITUS WE NOTED WITHOUT COMMENT THE "UPRIGHT AND
INTELLIGENT" REQUIREMENT FOR JURY MEMBERSHIP.  385 U.S.,AT 552; 345
U.S.,AT 562.  IN AVERY WE EXPRESSLY COMMENTED THAT GEORGIA LAW DID NOT
AUTHORIZE THE USE OF THE POTENTIALLY DISCRIMINATORY PROCESS UNDER
REVIEW.  345 U.S.,AT 562.  IN BOTH CASES WE STRUCK DOWN THE WHITE-AND
YELLOW SYSTEM, HOWEVER VARIED IN DESIGN, BECAUSE OF THE OBVIOUS DANGER
OF ABUSE.  SEE WILLIAMS V. GEORGIA, 349 U.S. 375, 382.  WE DEALT IN
BOTH CASES WITH A PHYSICAL, EVEN MECHANICAL, ASPECT OF THE JURY
SELECTION PROCESS THAT COULD HAVE NO CONCEIVABLE PURPOSE OR EFFECT
OTHER THAN TO ENABLE THOSE SO DISPOSED TO DISCRIMINATE AGAINST NEGROES
SOLELY ON THE BASIS OF THEIR RACE.  IT IS EVIDENT THAT THE CHALLENGED
PROVISIONS NOW BEFORE US CONTAIN NO SUCH DEFECT.  THE APPELLANTS CANNOT
CONTEND THAT THE PRESENT REQUIREMENTS SERVE NO RATIONAL FUNCTION OTHER
THAN TO AFFORD AN OPPORTUNITY TO STATE OFFICIALS TO DISCRIMINATE
AGAINST NEGROES IF THEY DESIRE TO DO SO. 

/14/  INDEED, AT THE ORAL ARGUMENT BEFORE THIS COURT, COUNSEL
CANDIDLY CONCEDED:  "THERE IS NO QUESTION THAT GEORGIA'S JURY SELECTION
STATUTE IS CAPABLE OF BEING IMPROPERLY ADMINISTERED.  THERE IS NO
QUESTION BUT THAT IN TALIAFERRO COUNTY, GEORGIA, IT HAS BEEN
MISADMINISTERED." 

/15/  ALTHOUGH GEORGIA GRANTS THE FRANCHISE TO ITS CITIZENS AT 18,
GA. CONST. ART. II, SEC. I, PARA. II, GA. CODE ANN. SEC. 2-702 (1948),
JURORS MUST BE OVER 21, GA. CODE ANN. SEC. 59-201 (1965), AND SO THE
JURY COMMISSIONERS STRUCK ALL PERSONS UNDER 21. 

/16/  AT THE ADJOURNED HEARING THE SUPERIOR COURT JUDGE TESTIFIED
THAT HE REGULARLY EXCUSES PEOPLE FROM THE TRAVERSE-JURY LISTS AS WELL
AS THE GRAND-JURY PANEL HE DRAWS IN THE COURTROOM.  WHETHER THE REQUEST
TO BE EXCUSED WAS MADE IN OPEN COURT, IN WRITING, OR OVER THE
TELEPHONE, ONLY THE JUDGE COULD EXCUSE FROM GRAND-JURY SERVICE THOSE
WHOSE NAMES HE HAD DRAWN. 

/17/  IT ALSO APPEARED THAT 191 OF THOSE STRICKEN FOR POOR HEALTH
AND OLD AGE WERE NEGRO (51%); 71 OF THOSE UNDER 21 (90%); 263 OF THOSE
AWAY FROM THE COUNTY (51%); AND THREE WHO ASKED TO BE RELIEVED FROM
JURY DUTY (6%). 

/18/  SEE SAILORS V. BOARD OF EDUCATION, 387 U.S. 105, 106. 

/19/  GA. CODE ANN. SEC. 59-106 (SUPP. 1968). 

/20/  SEE JONES V. GEORGIA, 389 U.S. 24, 25 (PER CURIAM); COLEMAN V.
ALABAMA, 389 U.S. 22, 23 (PER CURIAM); AVERY V. GEORGIA, 345 U.S. 559,
562-563; PATTON V. MISSISSIPPI, 332 U.S. 463, 468-469; HILL V. TEXAS,
316 U.S. 400, 405-406; NORRIS V. ALABAMA, 294 U.S. 587, 594-596, 598. 

/21/  SIMS V. GEORGIA, 389 U.S. 404, 407; WHITUS V. GEORGIA, 385
U.S. 545, 551; EUBANKS V. LOUISIANA, 356 U.S. 584, 587; HERNANDEZ V.
TEXAS, 347 U.S. 475, 481-482; AVERY V. GEORGIA, SUPRA, AT 561; NORRIS
V. ALABAMA, SUPRA, AT 598; CF. BROWN V. ALLEN, 344 U.S. 443, 481. 

/22/  AVERY V. GEORGIA, SUPRA, AT 562; CF. PIERRE V. LOUISIANA, 306
U.S. 354, 361-362; NORRIS V. ALABAMA, SUPRA, AT 594-595, 598-599. 

WE RESERVE THE QUESTION WHETHER A STATE THAT FOR YEARS HAS PROVIDED
SEPARATE AND INFERIOR SCHOOLS FOR NEGROES MAY NOW DISQUALIFY THEM FOR
JURY SERVICE ON THE "IMPARTIAL" GROUND OF EDUCATIONAL INADEQUACY,
HOWEVER DEFINED.  SEE GASTON COUNTY V. UNITED STATES, 395 U.S. 285,
297. 

/23/  GEORGIA'S CONTENTION THAT NO APPELLANT HAS STANDING TO RAISE
THIS CLAIM IS WITHOUT MERIT.  THE APPELLANT CALVIN TURNER IS A
FREEHOLDER, BUT THE APPELLANT JOSEPH HEATH IS NOT.  HEATH'S MOTION TO
INTERVENE WAS GRANTED BY THE DISTRICT COURTFORTHE EXPRESS PURPOSE OF
ADDING A PARTY PLAINTIFF TO THE CASE TO ENSURE THAT THE COURT COULD
REACH THE MERITS OF THIS ISSUE.  GEORGIA ALSO ARGUES THAT THE QUESTION
IS NOT PROPERLY BEFORE US BECAUSE THE RECORD IS DEVOID OF EVIDENCE THAT
THE FREEHOLDER REQUIREMENT ACTUALLY HAS OPERATED TO EXCLUDE ANYONE FROM
THE TALIAFERRO COUNTY BOARD OF EDUCATION.  BUT THE APPELLANT HEATH'S
ALLEGATION THAT HE IS NOT A FREEHOLDER IS UNCONTESTED, AND GEORGIA CAN
HARDLY URGE THAT HER COUNTY OFFICIALS MAY BE DEPENDED ON TO IGNORE A
PROVISION OF STATE LAW. 

/24/  MCGOWAN V. MARYLAND, 366 U.S. 420, 425-426; KOTCH V. BOARD OF
RIVER PORT PILOT COMMISSIONERS, 330 U.S. 552, 556. 

/25/  CF. SNOWDEN V. HUGHES, 321 U.S. 1, 7. 

/26/  CF. ANDERSON V. MARTIN, 375 U.S. 399, 402, 404; SNOWDEN V.
HUGHES, SUPRA, AT 7-8. 

/27/  CF. CARRINGTON V. RASH, 380 U.S. 89, 91; LASSITER V.
NORTHAMPTON COUNTY BOARD OF ELECTIONS, 360 U.S. 45, 50-51; POPE V.
WILLIAMS, 193 U.S. 621, 632. 

/28/  LANGUAGE TO SUCH EFFECT MAY BE FOUND IN STRAUDER V. WEST
VIRGINIA, 100 U.S. 303, 310.  BUT THE PASSAGE RELIED UPON BY GEORGIA IS
NO MORE THAN DICTUM.  LATER DECISIONS INVOKING STRAUDER FALL IN THE
SAME CATEGORY.  GIBSON V. MISSISSIPPI, 162 U.S. 565, 580; NEAL V.
DELAWARE, 103 U.S. 370, 386.  VOUGHT V. WISCONSIN, 217 U.S. 590, IS
HARDLY APPOSITE; THERE WE DISMISSED AN APPEAL FOR WANT OF A MERITORIOUS
QUESTION IN A CASE WHERE THE APPELLANT CHALLENGED A JUDGMENT OF
CONVICTION ARISING FROM AN INDICTMENT RETURNED BY A GRAND JURY SELECTED
BY COMMISSIONERS REQUIRED BY STATUTE TO BE FREEHOLDERS. 

/29/  CF. LEARY V. UNITED STATES, 395 U.S. 6, 32-36; TOT V. UNITED
STATES, 319 U.S. 463, 468. 

/30/  CF. CARRINGTON V. RASH, SUPRA, AT 95-96. 

MICHAEL MELTSNER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE JACK GREENBERG AND HOWARD MOORE, JR. 

ALFRED L. EVANS, JR., ASSISTANT ATTORNEY GENERAL OF GEORGIA, ARGUED
THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF FOR THE STATE OF
GEORGIA WERE ARTHUR K. BOLTON, ATTORNEY GENERAL, HOWARD N. HILL, JR.,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND J. LEE PERRY, ASSISTANT
ATTORNEY GENERAL. 

CHARLES J. BLOCK AND WILBUR D. OWENS, JR., FILED A BRIEF FOR
APPELLEES FOUCHE ET AL.
..END :



















MOLINARO V. NEW JERSEY, 396 U.S. 365 


       MOLINARO V. NEW JERSEY

        APPEAL FROM THE SUPREME COURT OF NEW JERSEY

        NO. 663.  DECIDED JANUARY 19, 1970. 


THE COURT, ABSENT ANY CONTRARY PROVISION IN THE STATUTE UNDER WHICH
THE APPEAL IN THIS CRIMINAL CASE WAS MADE, DECLINES TO ADJUDICATE THE
MERITS SINCE APPELLANT WHO WAS FREE ON BAIL REFUSED TO SURRENDER
HIMSELF TO STATE AUTHORITIES AND IS NOW A FUGITIVE FROM JUSTICE. 

54 N.J. 246, 254 A.2D 792, APPEAL DISMISSED. 

PER CURIAM. 

THIS CASE COMES TO THE COURT ON APPEAL FROM THE NEW JERSEY STATE
COURTS, WHICH HAVE AFFIRMED APPELLANT MOLINARO'S CONVICTION FOR
ABORTION AND CONSPIRACY TO COMMIT ABORTION.  WE ARE INFORMED BY BOTH
APPELLANT'S COUNSEL AND COUNSEL FOR THE STATE THAT MOLINARO, WHO WAS
FREE ON BAIL, HAS FAILED TO SURRENDER HIMSELF TO STATE AUTHORITIES. 
HIS BAIL HAS BEEN REVOKED, AND THE STATE CONSIDERS HIM A FUGITIVE FROM
JUSTICE.  UNDER THESE CIRCUMSTANCES WE DECLINE TO ADJUDICATE HIS CASE. 

THE COURT HAS FACED SUCH A SITUATION BEFORE, IN SMITH V. UNITED
STATES, 94 U.S. 97 (1876), AND BONAHAN V. NEBRASKA, 125 U.S. 692
(1887).  IN EACH OF THOSE CASES, WHICH WERE BEFORE THE COURT ON WRITS
OF ERROR, THE COURT ORDERED THE CASE REMOVED FROM THE DOCKET UPON
RECEIVING INFORMATION THAT THE PLAINTIFF IN ERROR HAD ESCAPED FROM
CUSTODY.  IN SMITH, THE CASE WAS DISMISSED AT THE BEGINNING OF THE
FOLLOWING TERM.  SEE 18 GEO.WASH.L.REV.  427, 430 (1950).  IN BONAHAN,
THE CASE WAS STRICKEN FROM THE DOCKET ON THE LAST DAY OF THE TERM IN
WHICH IT AROSE.  SEE ALSO NATIONAL UNION V. ARNOLD, 348 U.S. 37, 43
(1954); EISLER V. UNITED STATES, 338 U.S. 189 AND 883 (1949); ALLEN V.
GEORGIA, 166 U.S. 138 (1897).  NO PERSUASIVE REASON EXISTS WHY THIS
COURT SHOULD PROCEED TO ADJUDICATE THE MERITS OF A CRIMINAL CASE AFTER
THE CONVICTED DEFENDANT WHO HAS SOUGHT REVIEW ESCAPES FROM THE
RESTRAINTS PLACED UPON HIM PURSUANT TO THE CONVICTION.  WHILE SUCH AN
ESCAPE DOES NOT STRIP THE CASE OF ITS CHARACTER AS AN ADJUDICABLE CASE
OR CONTROVERSY, WE BELIEVE IT DISENTITLES THE DEFENDANT TO CALL UPON
THE RESOURCES OF THE COURT FOR DETERMINATION OF HIS CLAIMS.  IN THE
ABSENCE OF SPECIFIC PROVISION TO THE CONTRARY IN THE STATUTE UNDER
WHICH MOLINARO APPEALS, 28 U.S.C. 1257(2), WE CONCLUDE, IN LIGHT OF THE
SMITH AND BONAHAN DECISIONS, THAT THE COURT HAS THE AUTHORITY TO
DISMISS THE APPEAL ON THIS GROUND.  THE DISMISSAL NEED NOT AWAIT THE
END OF THE TERM OR THE EXPIRATION OF A FIXED PERIOD OF TIME, BUT SHOULD
TAKE PLACE AT THIS TIME. 

              IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

BURRELL IVES HUMPHREYS FOR APPELLANT. 
..END :



















MD. & VA. CHURCHES V. SHARPSBURG CH., 396 U.S. 367 


       MARYLAND AND VIRGINIA ELDERSHIP OF THE CHURCHES OF GOD ET

           AL. V. CHURCH OF GOD AT SHARPSBURG, INC., ET AL.

        APPEAL FROM THE COURT OF APPEALS OF MARYLAND

        NO. 414.  DECIDED JANUARY 19, 1970 


SINCE STATE COURT'S RESOLUTION OF PROPERTY DISPUTE BETWEEN CHURCH
BODIES WAS MADE ON BASIS OF STATE LAW THAT DID NOT INVOLVE INQUIRY INTO
RELIGIOUS DOCTRINE, THE APPEAL INVOLVES NO SUBSTANTIAL FEDERAL
QUESTION. 

254 MD. 162, 254 A.2D 162, APPEAL DISMISSED. 

PER CURIAM. 

IN RESOLVING A CHURCH PROPERTY DISPUTE BETWEEN APPELLANTS,
REPRESENTING THE GENERAL ELDERSHIP, AND APPELLEES, TWO SECESSIONIST
CONGREGATIONS, THE MARYLAND COURT OF APPEALS RELIED UPON PROVISIONS OF
STATE STATUTORY LAW GOVERNING THE HOLDING OF PROPERTY BY RELIGIOUS
CORPORATIONS, /1/  UPON LANGUAGE IN THE DEEDS CONVEYING THE PROPERTIES
IN QUESTION TO THE LOCAL CHURCH CORPORATIONS, UPON THE TERMS OF THE
CHARTERS OF THE CORPORATIONS, AND UPON PROVISIONS IN THE CONSTITUTION
OF THE GENERAL ELDERSHIP PERTINENT TO THE OWNERSHIP AND CONTROL OF
CHURCH PROPERTY.  254 MD. 162, 254 A.2D 162 (1969).  /2/  APPELLANTS
ARGUE PRIMARILY, THAT THE STATUTE, AS APPLIED, DEPRIVED THE GENERAL
ELDERSHIP OF PROPERTY IN VIOLATION OF THE FIRST AMENDMENT.  SINCE,
HOWEVER, THE MARYLAND COURT'S RESOLUTION OF THE DISPUTE INVOLVED NO
INQUIRY INTO RELIGIOUS DOCTRINE, APPELLEES' MOTION TO DISMISS IS
GRANTED, AND THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION. 

              IT IS SO ORDERED. 

/1/  MD. ANN. CODE, ART. 23, SECS. 256-270 (1966 REPL.  VOL.). 

/2/  THE MARYLAND COURT REACHED THE SAME DECISION IN MAY 1968.  249
MD. 650, 241 A.2D 691.  THIS COURT VACATED AND REMANDED THE CASE "FOR
FURTHER CONSIDERATION IN LIGHT OF PRESBYTERIAN CHURCH IN THE UNITED
STATES V. MARY ELIZABETH BLUE HULL MEMORIAL PRESBYTERIAN CHURCH . . . .
"  393 U.S. 528 (1969). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, CONCURRING. 

I JOIN THE PER CURIAM BUT ADD THESE COMMENTS.  WE HELD IN
PRESBYTERIAN CHURCH IN THE UNITED STATES V. MARY ELIZABETH BLUE HULL
MEMORIAL PRESBYTERIAN CHURCH, 393 U.S. 440, 449 (1969), THAT "FIRST
AMENDMENT VALUES ARE PLAINLY JEOPARDIZED WHEN CHURCH PROPERTY
LITIGATION IS MADE TO TURN ON THE RESOLUTION BY CIVIL COURTS OF
CONTROVERSIES OVER RELIGIOUS DOCTRINE AND PRACTICE.  IF CIVIL COURTS
UNDERTAKE TO RESOLVE SUCH CONTROVERSIES IN ORDER TO ADJUDICATE THE
PROPERTY DISPUTE, THE HAZARDS ARE EVER PRESENT OF INHIBITING THE FREE
DEVELOPMENT OF RELIGIOUS DOCTRINE AND OF IMPLICATING SECULAR INTERESTS
IN MATTERS OF PURELY ECCLESIASTICAL CONCERN.  . . . (THE (FIRST)
AMENDMENT THEREFORE COMMANDS CIVIL COURTS TO DECIDE CHURCH PROPERTY
DISPUTES WITHOUT RESOLVING UNDERLYING CONTROVERSIES OVER RELIGIOUS
DOCTRINE."  IT FOLLOWS THAT A STATE MAY ADOPT ANY ONE OF VARIOUS
APPROACHES FOR SETTLING CHURCH PROPERTY DISPUTES SO LONG AS IT INVOLVES
NO CONSIDERATION OF DOCTRINAL MATTERS, WHETHER THE RITUAL AND LITURGY
WORSHIP OR THE TENETS OF FAITH. 

THUS THE STATES MAY ADOPT THE APPROACH OF WATSON V. JONES, 13 WALL. 
679 (1872), AND ENFORCE THE PROPERTY DECISIONS MADE WITHIN A CHURCH OF
CONGREGATIONAL POLITY "BY A MAJORITY OF ITS MEMBERS OR BY SUCH OTHER
LOCAL ORGANISM AS IT MAY HAVE INSTITUTED FOR THE PURPOSE OF
ECCLESIASTICAL GOVERNMENT," ID., AT 724, AND WITHIN A CHURCH OF
HIERARCHICAL POLITY BY THE HIGHEST AUTHORITY THAT HAS RULED ON THE
DISPUTE AT ISSUE, /1/ UNLESS "EXPRESS TERMS" IN THE "INSTRUMENT BY
WHICH THE PROPERTY IS HELD" CONDITION THE PROPERTY'S USE OR CONTROL IN
A SPECIFIED MANNER.  /2/  UNDER WATSON CIVIL COURTS DO NOT INQUIRE
WHETHER THE RELEVANT CHURCH GOVERNING BODY HAS POWER UNDER RELIGIOUS
LAW TO CONTROL THE PROPERTY IN QUESTION.  SUCH A DETERMINATION, UNLIKE
THE IDENTIFICATION OF THE GOVERNING BODY, FREQUENTLY NECESSITATES THE
INTERPRETATION OF AMBIGUOUS RELIGIOUS LAW AND USAGE.  TO PERMIT CIVIL
COURTS TO PROBE DEEPLY ENOUGH INTO THE ALLOCATION OF POWER WITHIN A
CHURCH SO AS TO DECIDE WHERE RELIGIOUS LAW PLACES CONTROL OVER THE USE
OF CHURCH PROPERTY WOULD VIOLATE THE FIRST AMENDMENT IN MUCH THE SAME
MANNER AS CIVIL DETERMINATION OF RELIGIOUS DOCTRINE.  /3/  SIMILARLY,
WHERE THE IDENTITY OF THE GOVERNING BODY OR BODIES THAT EXERCISE
GENERAL AUTHORITY WITHIN A CHURCH IS A MATTER OF SUBSTANTIAL
CONTROVERSY, CIVIL COURTS ARE NOT TO MAKE THE INQUIRY INTO RELIGIOUS
LAW AND USAGE THAT WOULD BE ESSENTIAL TO THE RESOLUTION OF THE
CONTROVERSY.  IN OTHER WORDS, THE USE OF THE WATSON APPROACH IS
CONSONANT WITH THE PROHIBITIONS OF THE FIRST AMENDMENT ONLY IF THE
APPROPRIATE CHURCH GOVERNING BODY CAN BE DETERMINED WITHOUT THE
RESOLUTION OF DOCTRINAL QUESTIONS AND WITHOUT EXTENSIVE INQUIRY INTO
RELIGIOUS POLITY. 

"(NEUTRAL PRINCIPLES OF LAW, DEVELOPED FOR USE IN ALL PROPERTY
DISPUTES," PRESBYTERIAN CHURCH, SUPRA, AT 449, PROVIDE ANOTHER MEANS
FOR RESOLVING LITIGATION OVER RELIGIOUS PROPERTY.  UNDER THE "FORMAL
TITLE" DOCTRINE, CIVIL COURTS CAN DETERMINE OWNERSHIP BY STUDYING
DEEDS, REVERTER CLAUSES, AND GENERAL STATE CORPORATION LAWS.  AGAIN,
HOWEVER, GENERAL PRINCIPLES OF PROPERTY LAW MAY NOT BE RELIED UPON IF
THEIR APPLICATION REQUIRES CIVIL COURTS TO RESOLVE DOCTRINAL ISSUES. 
FOR EXAMPLE, PROVISIONS IN DEEDS OR IN A DENOMINATION'S CONSTITUTION
FOR THE REVERSION OF LOCAL CHURCH PROPERTY TO THE GENERAL CHURCH, IF
CONDITIONED UPON A FINDING OF DEPARTURE FROM DOCTRINE, COULD NOT BE
CIVILLY ENFORCED.  /4/ 

A THIRD POSSIBLE APPROACH IS THE PASSAGE OF SPECIAL STATUTES
GOVERNING CHURCH PROPERTY ARRANGEMENTS IN A MANNER THAT PRECLUDES STATE
INTERFERENCE IN DOCTRINE.  SUCH STATUTES MUST BE CAREFULLY DRAWN TO
LEAVE CONTROL OF ECCLESIASTICAL POLITY, AS WELL AS DOCTRINE, TO CHURCH
GOVERNING BODIES.  /5/  KEDROFF V. ST. NICHOLAS CATHEDRAL, 344 U.S. 94
(1952). 

/1/  UNDER THE WATSON DEFINITION, SUPRA, AT 722-723, CONGREGATIONAL
POLITY EXISTS WHEN "A RELIGIOUS CONGREGATION . . . , BY THE NATURE OF
ITS ORGANIZATION, IS STRICTLY INDEPENDENT OF OTHER ECCLESIASTICAL
ASSOCIATIONS, AND SO FAR AS CHURCH GOVERNMENT IS CONCERNED, OWES NO
FEALTY OR OBLIGATION TO ANY HIGHER AUTHORITY."  HIERARCHICAL POLITY, ON
THE OTHER HAND, EXISTS WHEN "THE RELIGIOUS CONGREGATION . . . IS BUT A
SUBORDINATE MEMBER OF SOME GENERAL CHURCH ORGANIZATION IN WHICH THERE
ARE SUPERIOR ECCLESIASTICAL TRIBUNALS WITH A GENERAL AND ULTIMATE POWER
OF CONTROL MORE OR LESS COMPLETE, IN SOME SUPREME JUDICATORY OVER THE
WHOLE MEMBERSHIP OF THAT GENERAL ORGANIZATION." 

/2/  ID., AT 722.  EXCEPT THAT "EXPRESS TERMS" CANNOT BE ENFORCED IF
ENFORCEMENT IS CONSTITUTIONALLY IMPERMISSIBLE UNDER PRESBYTERIAN
CHURCH.  ANY LANGUAGE IN WATSON, SUPRA, AT 722-723, THAT MAY BE READ TO
THE CONTRARY MUST BE DISAPPROVED.  ONLY EXPRESS CONDITIONS THAT MAY BE
EFFECTED WITHOUT CONSIDERATION OF DOCTRINE ARE CIVILLY ENFORCEABLE. 

/3/  EXCEPT THAT CIVIL TRIBUNALS MAY EXAMINE CHURCH RULINGS ALLEGED
TO BE THE PRODUCT OF "FRAUD, COLLUSION, OR ARBITRARINESS."  GONZALEZ V.
ROMAN CATHOLIC ARCHBISHOP, 280 U.S. 1, 16 (1929). 

/4/  THUS A STATE THAT NORMALLY RESOLVES DISPUTES OVER RELIGIOUS
PROPERTY BY APPLYING GENERAL PRINCIPLES OF PROPERTY LAW WOULD HAVE TO
USE A DIFFERENT METHOD IN CASES INVOLVING SUCH PROVISIONS, PERHAPS THAT
DEFINED IN WATSON.  BY THE SAME TOKEN, STATES FOLLOWING THE WATSON
APPROACH, WOULD HAVE TO FIND ANOTHER GROUND FOR DECISION, PERHAPS THE
APPLICATION OF GENERAL PROPERTY LAW, WHEN IDENTIFICATION OF THE
RELEVANT CHURCH GOVERNING BODY IS IMPOSSIBLE WITHOUT IMMERSION IN
DOCTRINAL ISSUES OR EXTENSIVE INQUIRY INTO CHURCH POLITY. 

/5/  SEE, E.G., GOODSON V. NORTHSIDE BIBLE CHURCH, 261 F.SUPP.  99
(D.C.S.D. ALA. 1966), AFF'D, 387 F.2D 534 (C.A. 5TH CIR. 1967). 

ALFRED L. SCANLAN, JAMES H. BOOSER, AND CHARLES O. FISHER FOR
APPELLANTS. 

ARTHUR G. LAMBERT FOR APPELLEES. 
..END :












COWGILL V. CALIFORNIA, 396 U.S. 371 


       COWGILL V. CALIFORNIA

        APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT

           OF CALIFORNIA, COUNTY OF LOS ANGELES

        NO. 496.  DECIDED JANUARY 19, 1970 


274 CAL.APP.2D 923, 78 CAL.REPTR.  853, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING. 

WHILE I AM OF THE VIEW THIS APPEAL SHOULD BE DISMISSED, I DEEM IT
APPROPRIATE TO EXPLAIN THE BASIS FOR MY CONCLUSION SINCE THE ISSUE
TENDERED BY APPELLANT-- WHETHER SYMBOLIC EXPRESSION BY DISPLAYING A
"MUTILATED" AMERICAN FLAG IS PROTECTED FROM PUNISHMENT BY THE
FOURTEENTH AMENDMENT-- IS ONE THAT I CANNOT REGARD AS INSUBSTANTIAL. 
SEE STREET V. NEW YORK, 394 U.S. 576, 594 (1969). 

THE RECORD BEFORE US IS NOT IN MY JUDGMENT SUITABLE FOR CONSIDERING
THIS BROAD QUESTION AS IT DOES NOT ADEQUATELY FLUSH THE NARROWER AND
PREDICATE ISSUE OF WHETHER THERE IS A RECOGNIZABLE COMMUNICATIVE ASPECT
TO APPELLANT'S CONDUCT WHICH APPEARS TO HAVE CONSISTED MERELY OF
WEARING A VEST FASHIONED OUT OF A CUT-UP AMERICAN FLAG.  SUCH A
QUESTION, NOT INSUBSTANTIAL OF ITSELF, HAS BEEN PRETERMITTED IN THE
COURT'S PREVIOUS SO-CALLED "SYMBOLIC SPEECH" CASES WHERE THE
COMMUNICATIVE CONTENT OF THE CONDUCT WAS BEYOND DISPUTE.  SEE TINKER V.
DES MOINES SCHOOL DISTRICT, 393 U.S. 503 (1969); GREGORY V. CITY OF
CHICAGO, 394 U.S. 111 (1969); BROWN V. LOUISIANA, 383 U.S. 131 (1966);
BELL V. MARYLAND, 378 U.S. 226 (1964); GARNER V. LOUISIANA, 368 U.S.
157, 201 (CONCURRING IN JUDGMENT) (1961); WEST VIRGINIA STATE BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624, 632 (1943); SEE GENERALLY NOTE,
SYMBOLIC CONDUCT, 68 COL.L.REV.  1091 (1968).  THE COURT HAS, AS YET,
NOT ESTABLISHED A TEST FOR DETERMINING AT WHAT POINT CONDUCT BECOMES SO
INTERTWINED WITH EXPRESSION THAT IT BECOMES NECESSARY TO WEIGH THE
STATE'S INTEREST IN PROSCRIBING CONDUCT AGAINST THE CONSTITUTIONALLY
PROTECTED INTEREST IN FREEDOM OF EXPRESSION.  /1/ 

WHILE APPELLANT CONTENDS THAT HIS CONDUCT CONVEYED A SYMBOLIC
MESSAGE, THE STIPULATED STATEMENT OF FACTS ON WHICH THIS CASE COMES TO
US SUGGESTS THAT THE ISSUE WAS NOT, IN THE FIRST INSTANCE, DETERMINED
AS A FACTUAL MATTER BY THE TRIAL COURT.  FURTHER, THERE IS NO
INDICATION THAT APPELLANT EITHER PRESENTED EVIDENCE ON THIS QUESTION AT
TRIAL OR URGED ANY STANDARD AT TRIAL FOR DETERMINING THAT ISSUE.  I
WOULD THEREFORE DISMISS THIS APPEAL BASED ON THE INADEQUACY OF THE
RECORD FOR DECIDING THE QUESTION PRESENTED.  RESCUE ARMY V. MUNICIPAL
COURT, 331 U.S. 549 (1947); DEBACKER V. BRAINARD, ANTE, P. 28. 

/1/  CHIEF JUSTICE WARREN, WRITING FOR THE MAJORITY IN UNITED STATES
V. O'BRIEN, 391 U.S. 367, 376 (1968), SAID:  "WE CANNOT ACCEPT THE VIEW
THAT AN APPARENTLY LIMITLESS VARIETY OF CONDUCT CAN BE LABELED 'SPEECH'
WHENEVER THE PERSON ENGAGING IN THE CONDUCT INTENDS THEREBY TO EXPRESS
AN IDEA."  THE COURT WENT ON, HOWEVER, TO TAKE JUDICIAL NOTICE OF THE
SYMBOLIC SIGNIFICANCE OF DRAFT-CARD BURNING WHICH HAD BECOME A
RECOGNIZED WAY OF PROTESTING THE DRAFT AND AMERICAN INVOLVEMENT IN
VIETNAM. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

MELVILLE B. NIMMER AND LAURENCE R. SPERBER FOR APPELLANT. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, WILLIAM E. JAMES,
ASSISTANT ATTORNEY GENERAL, AND EVELLE J. YOUNGER FOR APPELLEE. 
..END :
























MOSKOWITZ V. POWER, 396 U.S. 373 


       MOSKOWITZ V. POWER ET AL.

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 770.  DECIDED JANUARY 19, 1970 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

DANIEL G. COLLINS FOR APPELLANT. 

LOUIS J. LEFKOWITZ, PRO SE, ATTORNEY GENERAL FOR NEW YORK, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND PHILIP KAHANER AND
ROBERT S. HAMMER, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEE THE
ATTORNEY GENERAL OF NEW YORK. 
..END :








BLINCOE V. WATSON, 396 U.S. 373 


       BLINCOE ET UX. V. WATSON, ASSESSOR, ET AL.

  APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

         APPELLATE DISTRICT

        NO. 808.  DECIDED JANUARY 19, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :









FIRST FEDERAL SAVINGS & LOAN V. LANGTON, 396 U.S. 374 


       FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF PROVIDENCE V.

           LANGTON, TAX ADMINISTRATOR

APPEAL FROM THE SUPREME COURT OF RHODE ISLAND

        NO. 288.  DECIDED JANUARY 19, 1970. 


-- R.I.-- , 251 A.2D 170, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

MAX WINOGRAD FOR APPELLANT. 

HERBERT F. DESIMONE, ATTORNEY GENERAL OF RHODE ISLAND, FOR
APPELLEE. 
..END :



CARTER V. WEST FELICIANA SCHOOL BD., 396 U.S. 290 


       CARTER ET AL. V. WEST FELICIANA PARISH SCHOOL BOARD ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 944.  DECIDED JANUARY 14, 1970  /1/ 


CERTIORARI GRANTED; 419 F.2D 1211, REVERSED AND REMANDED. 

PER CURIAM. 

INSOFAR AS THE COURT OF APPEALS AUTHORIZED DEFERRAL OF STUDENT
DESEGREGATION BEYOND FEBRUARY 1, 1970, THAT COURT MISCONSTRUED OUR
HOLDING IN ALEXANDER V. HOLMES COUNTY BOARD OF EDUCATION, ANTE, P. 19. 
ACCORDINGLY, THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, THE
JUDGMENTS OF THE COURT OF APPEALS ARE REVERSED, AND THE CASES REMANDED
TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
THE JUDGMENTS IN THESE CASES ARE TO ISSUE FORTHWITH. 

/1/  TOGETHER WITH NO. 972, SINGLETON ET AL. V. JACKSON MUNICIPAL
SEPARATE SCHOOL DISTRICT ET AL., ALSO ON PETITION FOR WRIT OF
CERTIORARI TO THE SAME COURT. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE WHITE JOINS, CONCURRING. 

I JOIN THE COURT'S ORDER.  I AGREE THAT THE ACTION OF THE COURT OF
APPEALS IN THESE CASES DOES NOT FULFILL THE REQUIREMENTS OF OUR RECENT
DECISION IN ALEXANDER V. HOLMES COUNTY BOARD OF EDUCATION, ANTE, P. 19,
AND ACCORDINGLY THAT THE JUDGMENTS BELOW CANNOT STAND.  HOWEVER, IN
FAIRNESS TO THE COURT OF APPEALS AND TO THE PARTIES, AND WITH A VIEW TO
GIVING FURTHER GUIDANCE TO LITIGANTS IN FUTURE CASES OF THIS KIND, I
CONSIDER THAT SOMETHING MORE IS DUE TO BE SAID RESPECTING THE INTENDED
EFFECT OF THE ALEXANDER DECISION.  SINCE THE COURT HAS NOT SEEN FIT TO
DO SO, I AM CONSTRAINED TO SET FORTH AT LEAST MY OWN UNDERSTANDING OF
THE PROCEDURE TO BE FOLLOWED IN THESE CASES.  BECAUSE OF THE SHORTNESS
OF THE TIME AVAILABLE, I MUST NECESSARILY DO THIS IN A SUMMARY WAY. 

THE INTENT OF ALEXANDER, AS I SEE IT, WAS THAT THE BURDEN IN ACTIONS
OF THIS TYPE SHOULD BE SHIFTED FROM PLAINTIFFS, SEEKING REDRESS FOR A
DENIAL OF CONSTITUTIONAL RIGHTS, TO DEFENDANT SCHOOL BOARDS.  WHAT THIS
MEANS IS THAT UPON A PRIMA FACIE SHOWING OF NONCOMPLIANCE WITH THIS
COURT'S HOLDING IN GREEN V. COUNTY SCHOOL BOARD OF NEW KENT COUNTY, 391
U.S. 430 (1968), SUFFICIENT TO DEMONSTRATE A LIKELIHOOD OF SUCCESS AT
TRIAL, PLAINTIFFS MAY APPLY FOR IMMEDIATE RELIEF THAT WILL AT ONCE
EXTIRPATE ANY LINGERING VESTIGES OF A CONSTITUTIONALLY PROHIBITED DUAL
SCHOOL SYSTEM.  CF. MAGNUM IMPORT CO. V. COTY, 262 U.S. 159 (1923). 

SUCH RELIEF, I BELIEVE IT WAS INTENDED, SHOULD CONSIST OF AN ORDER
PROVIDING MEASURES FOR ACHIEVING DISESTABLISHMENT OF SEGREGATED SCHOOL
SYSTEMS, AND SHOULD, IF APPROPRIATE, INCLUDE PROVISIONS FOR PUPIL AND
TEACHER REASSIGNMENTS, REZONING, OR ANY OTHER STEPS NECESSARY TO
ACCOMPLISH THE DESEGREGATION OF THE PUBLIC SCHOOL SYSTEM AS REQUIRED BY
GREEN.  GRADUATED IMPLEMENTATION OF THE RELIEF IS NO LONGER
CONSTITUTIONALLY PERMISSIBLE.  SUCH RELIEF SHALL BECOME EFFECTIVE
IMMEDIATELY AFTER THE COURTS, ACTING WITH DISPATCH, HAVE FORMULATED AND
APPROVED AN ORDER THAT WILL ACHIEVE COMPLETE DISESTABLISHMENT OF ALL
ASPECTS OF A SEGREGATED PUBLIC SCHOOL SYSTEM. 

IT WAS CONTEMPLATED, I THINK, THAT IN DETERMINING THE CHARACTER OF
SUCH RELIEF THE COURTS MAY CONSIDER SUBMISSIONS OF THE PARTIES OR ANY
RECOMMENDATIONS OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
THAT MAY EXIST OR MAY REQUEST PROPOSALS FROM THE DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE.  IF DEPARTMENT RECOMMENDATIONS ARE ALREADY
AVAILABLE THE SCHOOL DISTRICTS ARE TO BEAR THE BURDEN OF DEMONSTRATING
BEYOND QUESTION, AFTER A HEARING, THE UNWORKABILITY OF THE PROPOSALS,
AND IF SUCH PROPOSALS ARE FOUND UNWORKABLE, THE COURTS SHALL DEVISE
MEASURES TO PROVIDE THE REQUIRED RELIEF.  IT WOULD SUFFICE THAT SUCH
MEASURES WILL TEND TO ACCOMPLISH THE GOALS SET FORTH IN GREEN, AND, IF
THEY ARE LESS THAN EDUCATIONALLY PERFECT, PROPOSALS FOR AMENDMENTS MAY
THEREAFTER BE MADE.  SUCH PROPOSALS FOR AMENDMENTS ARE IN NO WAY TO
SUSPEND THE RELIEF GRANTED IN ACCORDANCE WITH THE REQUIREMENTS OF
ALEXANDER. 

ALEXANDER MAKES CLEAR THAT ANY ORDER SO APPROVED SHOULD THEREAFTER
BE IMPLEMENTED IN THE MINIMUM TIME NECESSARY FOR ACCOMPLISHING WHATEVER
PHYSICAL STEPS ARE REQUIRED TO PERMIT TRANSFERS OF STUDENTS AND
PERSONNEL OR OTHER CHANGES THAT MAY BE NECESSARY TO EFFECTUATE THE
REQUIRED RELIEF.  WERE THE RECENT ORDERS OF THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT IN UNITED STATES V. HINDS COUNTY SCHOOL BOARD, 423
F.2D 1264 (NOVEMBER 7, 1969), AND THAT OF THE FOURTH CIRCUIT IN NESBIT
V. STATESVILLE CITY BOARD OF EDUCATION, 418 F.2D 1040 (DECEMBER 2,
1969), EACH IMPLEMENTING IN THOSE CASES OUR DECISION IN ALEXANDER, TO
BE TAKEN AS A YARDSTICK, THIS WOULD LEAD TO THE CONCLUSION THAT IN NO
EVENT SHOULD THE TIME FROM THE FINDING OF NONCOMPLIANCE WITH THE
REQUIREMENTS OF THE GREEN CASE TO THE TIME OF THE ACTUAL OPERATIVE
EFFECT OF THE RELIEF, INCLUDING THE TIME FOR JUDICIAL APPROVAL AND
REVIEW, EXCEED A PERIOD OF APPROXIMATELY EIGHT WEEKS.  THIS, I THINK,
IS INDEED THE "MAXIMUM" TIMETABLE ESTABLISHED BY THE COURT TODAY FOR
CASES OF THIS KIND. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR.
JUSTICE MARSHALL EXPRESS THEIR DISAGREEMENT WITH THE OPINION OF MR.
JUSTICE HARLAN, JOINED BY MR. JUSTICE WHITE.  THEY BELIEVE THAT THOSE
VIEWS RETREAT FROM OUR HOLDING IN ALEXANDER V. HOLMES COUNTY BOARD OF
EDUCATION, ANTE, AT 20, THAT "THE OBLIGATION OF EVERY SCHOOL DISTRICT
IS TO TERMINATE DUAL SCHOOL SYSTEMS AT ONCE AND TO OPERATE NOW AND
HEREAFTER ONLY UNITARY SCHOOLS." 

MEMORANDUM OF THE CHIEF JUSTICE AND MR. JUSTICE STEWART. 

WE WOULD NOT PEREMPTORILY REVERSE THE JUDGMENTS OF THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT.  THAT COURT, SITTING EN BANC AND ACTING
UNANIMOUSLY AFTER OUR DECISION IN ALEXANDER V. HOLMES COUNTY BOARD OF
EDUCATION, ANTE, P. 19, HAS REQUIRED THE RESPONDENTS TO EFFECT
DESEGREGATION IN THEIR PUBLIC SCHOOLS BY FEBRUARY 1, 1970, SAVE FOR THE
STUDENT BODIES, WHICH ARE TO BE WHOLLY DESEGREGATED DURING THE CURRENT
YEAR, NO LATER THAN SEPTEMBER.  IN LIGHT OF THE MEASURES THE COURT OF
APPEALS HAS DIRECTED THE RESPONDENT SCHOOL DISTRICTS TO UNDERTAKE, WITH
TOTAL DESEGREGATION REQUIRED FOR THE UPCOMING SCHOOL YEAR, WE ARE NOT
PREPARED SUMMARILY TO SET ASIDE ITS JUDGMENTS.  THAT COURT IS FAR MORE
FAMILIAR THAN WE WITH THE VARIOUS SITUATIONS OF THESE SEVERAL SCHOOL
DISTRICTS, SOME LARGE, SOME SMALL, SOME RURAL, AND SOME METROPOLITAN,
AND HAS EXHIBITED RESPONSIBILITY AND FIDELITY TO THE OBJECTIVES OF OUR
HOLDINGSIN SCHOOL DESEGREGATION CASES.  TO SAY PEREMPTORILY THAT THE
COURT OF APPEALS ERRED IN ITS APPLICATION OF THE ALEXANDER DOCTRINE TO
THESE CASES, AND TO DIRECT SUMMARY REVERSAL WITHOUT ARGUMENT AND
WITHOUT OPPORTUNITY FOR EXPLORATION OF THE VARYING PROBLEMS OF
INDIVIDUAL SCHOOL DISTRICTS, SEEMS UNSOUND TO US. 

RICHARD B. SOBOL, MURPHY W. BELL, ROBERT F. COLLINS, NORMAN C.
AMAKER, AND MELVYN ZARR FOR PETITIONERS IN NO. 944.  JACK GREENBERG,
JAMES M. NABRIT III, MR. AMAKER, MR. ZARR, OSCAR W. ADAMS, JR., JOHN H.
RUFFIN, JR., AND EARL M. JOHNSON FOR PETITIONERS IN NO. 972. 

JOHN F. WARD, JR., FOR RESPONDENTS IN NO. 944.  ROBERT C. CANNADA
AND THOMAS H. WATKINS FOR JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT ET
AL., HARDY LOTT FOR MARSHALL COUNTY BOARD OF EDUCATION, REID B. BARNES
FOR JEFFERSON COUNTY BOARD OF EDUCATION, EDWIN L. BROBSTON FOR BOARD OF
EDUCATION OF THE CITY OF BESSEMER ET AL., PALMER PILLANS AND GEORGE F.
WOOD FOR BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY ET AL., FRANK
C. JONES AND WALLACE MILLER, JR., FOR BIBB COUNTY BOARD OF EDUCATION ET
AL., H. A. AULTMAN FOR HOUSTON COUNTY BOARD OF EDUCATION, W. FRED
TURNER FOR BOARD OF PUBLIC INSTRUCTION OF BAY COUNTY, AND SAM T. DELL,
JR., FOR BOARD OF PUBLIC INSTRUCTION OF ALACHUA COUNTY ET AL.,
RESPONDENTS IN NO. 972. 

BRIEFS OF AMICI CURIAE IN NOS. 944 AND 972 WERE FILED BY SOLICITOR
GENERAL GRISWOLD FOR THE UNITED STATES, AND BY MR. WARD FOR THE
LOUISIANA TEACHERS ASSOCIATION.  RIVERS BUFORD, JR., AND GERALD MAGER
FILED A BRIEF FOR THE STATE BOARD OF EDUCATION OF FLORIDA AS AMICUS
CURIAE IN NO. 972. 
..END :

















WADE V. WILSON, 396 U.S. 282 


       WADE V. WILSON, WARDEN, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

        NO. 55.  ARGUED NOVEMBER 12, 1969-- DECIDED JANUARY 13,

           1970 


PETITIONER AND A CODEFENDANT WERE CONVICTED OF MURDER AND GIVEN LIFE
SENTENCES.  PETITIONER'S CODEFENDANT RECEIVED A FREE COPY OF THE
TRANSCRIPT FOR PREPARING HIS APPEAL BUT CONTRARY TO CALIFORNIA COURT
RULES, WOULD NOT SHARE IT WITH PETITIONER, WHO WAS THEN LOANED A COPY
BY THE STATE FOR PREPARING HIS APPEAL.  THE CONVICTIONS WERE AFFIRMED. 
SEVERAL YEARS LATER PETITIONER, HAVING FRUITLESSLY SOUGHT THE
TRANSCRIPT FROM HIS CODEFENDANT, AND HAVING BEEN DENIED A FREE COPY OF
HIS OWN BY THE CALIFORNIA COURTS IN CONNECTION WITH COLLATERAL
PROCEEDINGS IN THE STATE COURTS, BROUGHT THIS HABEAS CORPUS PROCEEDING
ALLEGING HIS INDIGENCY AND CONTENDING THAT CALIFORNIA'S FAILURE TO
PROVIDE HIM A FREE TRANSCRIPT VIOLATED THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.  THE DISTRICT COURT
GRANTED THE WRIT.  THE COURT OF APPEALS REVERSED, HOLDING THAT THE
TRIAL COURT FAILED TO FIND THAT PETITIONER CLAIMED ERROR IN THE
PROCEEDINGS LEADING TO HIS CONVICTION THAT WARRANTED POST-CONVICTION
RELIEF AND THAT PETITIONER WAS NOT ENTITLED TO A TRANSCRIPT "TO ENABLE
HIM TO COMB THE RECORD IN THE HOPE OF DISCOVERING SOME FLAW."  HELD: 

1.  PETITIONER MAY NOT ATTACK THE STATE COURT RULES, WHICH CONCERN
ONLY THE FURNISHING OF TRANSCRIPTS FOR PURPOSES OF DIRECT APPEAL, SINCE
PETITIONER HAD THE TRANSCRIPT FOR THAT PURPOSE AND DID NOT COMPLAIN
THAT HIS HAVING IT ONLY ON LOAN IMPAIRED ITS USE ON APPEAL.  PP. 285
286. 

2.  THE COURT NEED NOT DECIDE WHETHER THE CONSTITUTION REQUIRES A
STATE TO FURNISH INDIGENT PRISONERS WITH FREE COPIES OF TRIAL
TRANSCRIPTS TO AID IN PREPARING PETITIONS FOR COLLATERAL RELIEF UNLESS
AND UNTIL IT APPEARS THAT PETITIONER CANNOT AGAIN BORROW A COPY FROM
THE STATE, ORPROCURE ONE FROM HIS CODEFENDANT OR OTHER CUSTODIAN; OR
SHOW THAT IT WOULD BE SIGNIFICANTLY MORE ADVANTAGEOUS FOR HIM TO OWN
RATHER THAN BORROW A COPY.  PP. 286-287. 

DISTRICT COURT JUDGMENT AND 390 F.2D 632, VACATED AND REMANDED. 
AND KARL S. MAYER, DEPUTY ATTORNEY GENERAL. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN 1961, PETITIONER AND ONE POLLARD APPEALED TO THE CALIFORNIA
DISTRICT COURT OF APPEAL FROM MURDER CONVICTIONS UPON WHICH THE
CALIFORNIA SUPERIOR COURT HAD SENTENCED EACH OF THEM TO LIFE
IMPRISONMENT.  CALIFORNIA RULES OF COURT 35(C) AND 10(C) REQUIRED THAT
THE APPELLANTS BE FURNISHED WITH ONE FREE COPY OF THE TRIAL TRANSCRIPT
TO BE SHARED BY THEM FOR THE PURPOSES OF THE APPEAL.  POLLARD RECEIVED
THE FREE COPY BUT WOULD NOT SHARE IT WITH PETITIONER.  HOWEVER, THE
STATE ATTORNEY GENERAL LOANED PETITIONER'S APPELLATE COUNSEL HIS COPY. 
THE DISTRICT COURT OF APPEAL AFFIRMED THE CONVICTIONS, 194 CAL.APP.2D
830, 15 CAL.RPTR.  214 (1961). 

FIVE YEARS LATER, IN 1966, PETITIONER WISHED TO PURSUE A COLLATERAL
REMEDY AND SOUGHT THE TRANSCRIPT FROM POLLARD BUT POLLARD "REFUSED) TO
COMMUNICATE ON THE SUBJECT."  PETITIONER'S INQUIRY OF HIS APPELLATE
LAWYER ELICITED THE RESPONSE THAT THE COPY BORROWED FROM THE ATTORNEY
GENERAL HAD BEEN RETURNED.  PETITIONER THEN TURNED TO THE CALIFORNIA
COURTS SEEKING, HOWEVER, NOT TEMPORARY USE OF A COPY, BUT TO BE
FURNISHED WITH A COPY OF HIS OWN.  HE APPLIED INITIALLY TO THE TRIAL
COURT AND WAS ADVISED THAT THE ORIGINAL OF THE TRANSCRIPT WAS IN THE
DISTRICT COURT OF APPEAL.  HE THEREUPON FILED A PRO SE MOTION FOR A
COPY IN THE DISTRICT COURT OF APPEAL, WHICH MOTION WAS DENIED ON THE
GROUND THAT THE COURT OF APPEAL HAD ONLY THE ORIGINAL AND WAS NOT
EQUIPPED TO DUPLICATE COPIES.  HE NEXT FILED A PROCEEDING IN THE
CALIFORNIA SUPREME COURT AND WAS ADVISED BY THE CLERK OF THAT COURT
THAT HE MUST PROCEED IN "THE COURT POSSESSED OF THE ORIGINAL RECORD." 
/1/  HE RENEWED HIS APPLICATION TO THEDISTRICTCOURT OF APPEAL, WHICH
AGAIN DENIED IT ON THE GROUND THAT THAT COURT HAD "NO FACILITY FOR
REPRODUCING RECORDS"; BUT THIS TIME PETITIONER WAS ADVISED THAT THE
ORIGINAL RECORD WOULD BE MADE AVAILABLE FOR COPYING AT HIS EXPENSE. 
PETITIONER THEN ABANDONED FURTHER EFFORTS IN THE CALIFORNIA COURTS. 

IN 1967, HE FILED THE INSTANT FEDERAL HABEAS CORPUS PROCEEDING IN
THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.  HIS
PETITION ALLEGED HIS INDIGENCY AND THE SINGLE CLAIM THAT CALIFORNIA'S
REFUSAL TO FURNISH HIM WITHOUT COST HIS OWN COPY OF THE TRANSCRIPT
DENIED HIM DUE PROCESS AND EQUAL PROTECTION OF THE LAWS IN VIOLATION OF
THE FOURTEENTH AMENDMENT.  THE DISTRICT COURT AFTER HEARING GRANTED THE
WRIT AND ORDERED CALIFORNIA EITHER TO PROVIDE THE FREE TRANSCRIPT OR TO
RELEASE THE PETITIONER.  THE DISTRICT COURT STATED IN AN UNREPORTED
OPINION, "ALTHOUGH THERE IS NO SQUARE HOLDING ON THE PRECISE QUESTION
OF THE RIGHT TO A TRANSCRIPT IN PREPARING A PETITION FOR A WRIT OF
HABEAS CORPUS RATHER THAN AN APPEAL, THE LOGIC OF THE SUPREME COURT
HOLDINGS COMPELS A FINDING THAT SUCH A RIGHT EXISTS."  /2/  THE COURT
OF APPEALSFOR THE NINTH CIRCUIT REVERSED ON THE GROUND THAT "THE TRIAL
COURT FAILED TO FIND THAT WADE WAS CLAIMING THAT THERE WAS ANY ERROR
WHICH OCCURRED IN THE PROCEEDINGS WHICH LED TO HIS CONVICTION WHICH
WOULD WARRANT THE GRANTING OF POST-CONVICTION RELIEF.  . . . WADE WAS
NOT ENTITLED TO DEMAND A TRANSCRIPT MERELY TO ENABLE HIM TO COMB THE
RECORD IN THE HOPE OF DISCOVERING SOME FLAW."  390 F.2D 632, 634
(1968).  WE GRANTED CERTIORARI.  393 U.S. 1079 (1969). 

THE CALIFORNIA COURT RULES REQUIRE THAT A FREE TRANSCRIPT BE
FURNISHED TO CONVICTED PERSONS SEPARATELY TRIED IN FELONY CASES AND TO
EACH CODEFENDANT WHERE ONE OR MORE CODEFENDANTS ARE UNDER SENTENCE OF
DEATH.  /3/  PETITIONER ARGUES THAT IN FURNISHING ONLY ONE COPY TO BE
SHARED BY CODEFENDANTS WHERE NONE RECEIVED THE DEATH PENALTY CALIFORNIA
INTERPOSES AN UNCONSTITUTIONAL BARRIER TO THE USE OF ITS CRIMINAL
APPELLATE PROCEEDINGS AND THAT THE DISTINCTION MADE BY THE RULES,
WITHOUT MORE, ESTABLISHES THAT CALIFORNIA HAS DENIED HIM EQUAL
PROTECTION OF THE LAWS.  BUT PETITIONER WILL NOT BE HEARD TO ATTACK THE
RULES SINCE THEY CONCERN ONLY THE FURNISHING OF TRANSCRIPTS FOR
PURPOSES OF DIRECT APPEAL AND HE AND HIS APPELLATE COUNSEL IN FACT HAD
THE USE OF HIS DIRECT APPEAL OF THE TRANSCRIPT BORROWED FROM THE STATE
ATTORNEY GENERAL AND DID NOT COMPLAIN THAT THE TERMS ON WHICH IT WAS
MADE AVAILABLE IN ANY WAY IMPAIRED ITS EFFECTIVE USE OF THE APPEAL. 
SEE UNITED STATES V. RAINES, 362 U.S. 17, 21-22 (1960). 

PETITIONER ARGUES THAT IN ANY EVENT, CONTRARY TO THE COURT OF
APPEALS, THE DISTRICT COURT WAS CORRECT IN HOLDING THAT BECAUSE "IT MAY
NOT BE POSSIBLE TO PINPOINT . . . ALLEGED ERRORS IN THE ABSENCE OF A
TRANSCRIPT," PETITIONER WAS ENTITLED TO A TRANSCRIPT FOR USE IN
PETITIONING FOR HABEAS CORPUS EVEN THOUGH HE DID NOT SPECIFY WHAT
ERRORS HE CLAIMED IN HIS CONVICTION.  TO PASS ON THIS CONTENTION AT
THIS TIME WOULD NECESSITATE OUR DECISION WHETHER THERE ARE
CIRCUMSTANCES IN WHICH THE CONSTITUTION REQUIRES THAT A STATE FURNISH
AN INDIGENT STATE PRISONER FREE OF COST A TRIAL TRANSCRIPT TO AID HIM
TO PREPARE A PETITION FOR COLLATERAL RELIEF.  THIS IS A QUESTION OF
FIRST IMPRESSION WHICH NEED NOT BE REACHED AT THIS STAGE OF THE CASE. 
NOTWITHSTANDING PETITIONER'S SUCCESS IN BORROWING A COPY OF THE
TRANSCRIPT IN CONNECTION WITH HIS DIRECT APPEAL, HIS INSISTENCE IN THE
SUBSEQUENT PROCEEDINGS IN BOTH THE CALIFORNIA AND FEDERAL COURTS IS
THAT HE HAS A CONSTITUTIONAL RIGHT TO A COPY OF HIS OWN.  WE THINK
CONSIDERATION OF THAT CONTENTION SHOULD BE POSTPONED UNTIL IT APPEARS
THAT PETITIONER CANNOT AGAIN BORROW A COPY FROM THE STATE AUTHORITIES,
OR SUCCESSFULLY APPLY TO THE CALIFORNIA COURTS TO DIRECT HIS
CODEFENDANT, POLLARD, OR SOME OTHER CUSTODIAN OFACOPY TO MAKE A COPY
AVAILABLE TO HIM.  CF. RULE 10(C).  WITHOUT SUCH A SHOWING, OR A
SHOWING THAT HAVINGHIS OWN COPY WOULD BE SIGNIFICANTLY MORE
ADVANTAGEOUS THAN OBTAINING THE USE OF SOMEONE ELSE'S COPY, THE
DISTRICT COURT SHOULD NOT HAVE REACHED THE MERITS OF PETITIONER'S
CLAIM.  WE THINK, HOWEVER, THAT THE CASE SHOULD BE RETAINED ON THE
DISTRICT COURT'S DOCKET PENDING PETITIONER'S EFFORTS TO OBTAIN ACCESS
TO THE ORIGINAL OR A COPY.  UPON BEING ADVISED BY THE PARTIES THAT
PETITIONER HAS BEEN PROVIDED SUCH ACCESS, THE COURT SHOULD DISMISS THE
ACTION.  WE VACATE THE JUDGMENTS OF BOTH THE COURT OF APPEALS AND THE
DISTRICT COURT AND REMAND TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  PETITIONER STYLED HIS APPLICATION TO THE SUPREME COURT OF
CALIFORNIA "A PETITION FOR A WRIT OF HABEAS CORPUS" BUT THE ONLY RELIEF
HE REQUESTED WAS ISSUANCE OF THE RECORD IN HIS CASE OR AN ORDER TO THE
DISTRICT COURT OF APPEAL TO FURNISH HIM WITH THE RECORD.  HE DID NOT
REQUEST AN ORDER RELEASING HIM FROM CUSTODY. 

/2/  THE DISTRICT COURT CITED SMITH V. BENNETT, 365 U.S. 708 (1961)
(HABEAS CORPUS FILING FEE); GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956)
(TRANSCRIPT ON DIRECT APPEAL); LANE V. BROWN, 372 U.S. 477 (1963)
(TRANSCRIPT ON POST-CONVICTION APPEAL); LONG V. DISTRICT COURT, 385
U.S. 192 (1966) (TRANSCRIPT ON POST-CONVICTION APPEAL).  SEE ALSO
ROBERTS V. LAVALLE, 389 U.S. 40 (1967); GARDNER V. CALIFORNIA, 393 U.S.
367 (1969). 

/3/  RULES 35(C) AND 10(C) PROVIDE IN PERTINENT PART: 

RULE 35(C):  "AS SOON AS BOTH THE CLERK'S AND REPORTER'S TRANSCRIPTS
ARE COMPLETED, THE CLERK SHALL DELIVER ONE COPY TO THE DEFENDANT OR HIS
ATTORNEY AND ONE COPY TO THE DISTRICT ATTORNEY.  . . . WHEN THERE ARE
TWO OR MORE APPEALING DEFENDANTS IN A CASE IN WHICH A JUDGMENT OF DEATH
HAS BEEN RENDERED AGAINST ONE OR MORE OF THE DEFENDANTS, THE CLERK
SHALL DELIVER A COPY OF BOTH TRANSCRIPTS TO EACH SUCH DEFENDANT OR HIS
ATTORNEY.  . . . WHERE THERE ARE TWO OR MORE APPEALING DEFENDANTS
REPRESENTED BY SEPARATE COUNSEL IN A CASE IN WHICH JUDGMENT OF DEATH
HAS NOT BEEN RENDERED AGAINST ANY DEFENDANT, THE APPELLANT'S COPY SHALL
BE MADE AVAILABLE FOR THE USE OF THE APPELLANTS IN THE MANNER PROVIDED
IN RULE 10." 

RULE 10(C):  "THE ADDITIONAL COPY OF THE RECORD REQUIRED BY THESE
RULES SHALL BE MADE AVAILABLE FOR THE USE OF THE PARTIES TO THE APPEAL
IN SUCH MANNER AS THE JUDGE, OR THE CLERK UNDER HIS DIRECTION, SHALL
PRESCRIBE; PROVIDED THAT THE PARTIES MAY STIPULATE TO ITS USE, AND IN
SUCH EVENT ONLY THE ORIGINAL NEED BE FILED WITH THE CLERK OF THE
SUPERIOR COURT." 

MR. JUSTICE BLACK, DISSENTING. 

PETITIONER AND ONE JOE POLLARD WERE CONVICTED OF MURDER IN 1960 AND
SENTENCED TO LIFE IMPRISONMENT.  POLLARD RECEIVED A TRIAL TRANSCRIPT
AND WHEN HE REFUSED TO TURN IT OVER TO PETITIONER FOR HIS USE IN
PREPARING AN APPEAL, THE STATE ATTORNEY GENERAL'S OFFICE LOANED A COPY
TO PETITIONER'S APPELLATE COUNSEL.  THE CALIFORNIA DISTRICT COURT OF
APPEAL AFFIRMED IN 1961.  194 CAL.APP.2D 830, 15 CAL.RPTR.  214.  FIVE
YEARS LATER, IN 1966, PETITIONER TRIED IN THE STATE COURTS TO OBTAIN A
TRIAL TRANSCRIPT.  FAILING THERE, HE FILED A PETITION IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA IN 1967
ASKING TO BE RELEASED BECAUSE OF THE STATE'S REFUSAL TO PROVIDE HIM A
COPY OF THE TRANSCRIPT.  THE UNITED STATES DISTRICT COURT HELD
PETITIONER WAS ENTITLED TO A COPY OF THE TRIAL RECORD BUT THE UNITED
STATES COURT OF APPEALS REVERSED, HOLDING THAT SINCE PETITIONER DID NOT
ALLEGE ANY TRIAL ERROR WHICH MIGHT WARRANT POST-CONVICTION RELIEF HE
WAS "NOT ENTITLED TO DEMAND A TRANSCRIPT MERELY TO ENABLE HIM TO COMB
THE RECORD IN THE HOPE OF DISCOVERING SOME FLAW."  390 F.2D 632, 634
(1968). 

THIS COURT TODAY SAYS THE PETITIONER THUS RAISES A CONSTITUTIONAL
QUESTION OF FIRST IMPRESSION, "WHETHER THERE ARE CIRCUMSTANCES IN WHICH
THE CONSTITUTION REQUIRES THAT A STATE FURNISH AN INDIGENT STATE
PRISONER FREE OF COST A TRIAL TRANSCRIPT TO AID HIM TO PREPARE A
PETITION FOR COLLATERAL RELIEF."  ANTE, AT 286.  IT MAY BE CONCEIVABLE
THAT THE CONSTITUTION WOULD UNDER CERTAIN SPECIAL CIRCUMSTANCES IMPOSE
THIS DUTY ON THE STATE WHEN IT HAS SUCH A RECORD IN ITS POSSESSION, BUT
I CANNOT AGREE THAT ANYTHING SHOWN IN THIS RECORD PRESENTS THOSE
SPECIAL CIRCUMSTANCES. 

IT IS NOW OVER NINE YEARS SINCE THIS CASE WAS TRIED.  AT
PETITIONER'S REQUEST A TRIAL RECORD WAS MADE AVAILABLE FOR HIM TO TAKE
AN APPEAL; EIGHT YEARS AGO HE TOOK THAT APPEAL AND LOST.  THERE
CERTAINLY IS NO CONSTITUTIONAL REQUIREMENT THAT A STATE MUST CONTINUE
TO SUPPLY CONVICTED DEFENDANTS TRIAL RECORDS TO ENABLE THEM TO RAISE
THE SAME OLD CHALLENGES TO THEIR CONVICTIONS AGAIN AND AGAIN AND
AGAIN.  THERE IS NOT A WORD OR A SUGGESTION IN THE WHOLE RECORD IN THIS
CASE THAT DEMONSTRATES OR EVEN INTIMATES THAT ANY NEW EVENTS HAVE
OCCURRED SINCE PETITIONER'S 1961 APPEAL WHICH COULD UNDER ANY POSSIBLE
CIRCUMSTANCES JUSTIFY EVEN A SHADOWY ARGUMENT THAT PETITIONER WAS NOT
GUILTY OF THE MURDER HE WAS CONVICTED OF HAVING COMMITTED.  ALTHOUGH
MORE THAN EIGHT YEARS HAVE PASSED SINCE THAT APPEAL, I WOULD JOIN IN
GRANTING RELIEF TO THIS PETITIONER IF HE HAD SHOWN, OR EVEN GIVEN ANY
REASON TO BELIEVE, THAT NEW CIRCUMSTANCES NOW INDICATE HE WAS
WRONGFULLY CONVICTED OF A CRIME OF WHICH HE WAS NOT GUILTY.  SEE FAY V.
NOIA, 372 U.S. 391 (1963); CF. KAUFMAN V. UNITED STATES, 394 U.S. 217,
231 (1969) (BLACK, J., DISSENTING); HARRIS V. NELSON, 394 U.S. 286, 301
(1969) (BLACK, J., DISSENTING).  BUT WE HAVE NO SUCH CASE HERE. 
PETITIONER HAS NOT RAISED ANY CLAIMS WHICH INDICATE IN THE SLIGHTEST
THAT HE HAS BEEN CONVICTED OF A CRIME OF WHICH HE IS INNOCENT.  AT THE
MOST HE HAS ASSERTED A DESIRE TO REVIEW THE RECORD TO FIND SOME
TECHNICAL LEGAL POINT WHICH HE CAN ARGUE TO A COURT AS A BASIS FOR
RELEASE FROM CONFINEMENT.  HE HAS ALREADY HAD ONE CHANCE TO MAKE SUCH
ARGUMENTSON DIRECT APPEAL, AND HE LOST THAT BATTLE.  I DO NOT THINK HE
NEEDS A TRANSCRIPT TO KNOW WHETHER HE WAS CONVICTED ERRONEOUSLY OR
WHETHER SOME NEW CIRCUMSTANCES HAVE ARISEN THAT NOW SHOW A FATAL
CONSTITUTIONAL ERROR IN THE PRIOR PROCEEDINGS.  IN ANY EVENT HE HAS NOT
YET BASED HIS REQUEST FOR A TRANSCRIPT ON ANY INDICATION OF SUCH A
NEED.  IN SUCH CIRCUMSTANCES I SEE NO REASON WHATSOEVER FOR THE STATE
TO HAVE TO OBTAIN A COPY FOR HIM.  THIS CASE IS BUT ANOTHER OF THE
MULTITUDINOUS INSTANCES IN WHICH COURTS ARE ASKED INTERMINABLY TO HASH
AND REHASH POINTS THAT HAVE ALREADY BEEN DETERMINED AFTER FULL
DELIBERATION AND REVIEW.  ONE CONSIDERED APPEAL IS ENOUGH, IN THE
ABSENCE OF FACTORS WHICH SHOW A POSSIBILITY THAT A SUBSTANTIAL
INJUSTICE HAS BEEN INFLICTED ON THE DEFENDANT. 

NOTHING IN THIS PETITIONER'S APPLICATION FOR CERTIORARI OR HIS
BRIEFS AND ARGUMENTS GAVE ANY INDICATION THAT HE MIGHT BE ENTITLED TO
POST-CONVICTION RELIEF, AND THERE IS THUS NO REASON WHY THIS COURT
SHOULD EVEN HAVE REVIEWED HIS CASE.  I WOULD DISMISS THIS WRIT AS BEING
IMPROVIDENTLY GRANTED. 

MARSHALL L. SMALL, BY APPOINTMENT OF THE COURT, 394 U.S. 941, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WAS MELVIN R.
GOLDMAN. 

JOHN T. MURPHY, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, ALBERT W. HARRIS, JR., ASSISTANT ATTORNEY GENERAL,
..END :








AMERICAN SMELTING & REFINING CO. V. COUNTY OF CONTRA COSTA, 396 U.S.
273 A 



       AMERICAN SMELTING & REFINING CO. V. COUNTY OF CONTRA COSTA

           ET AL.

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FIRST

           APPELLATE DISTRICT

        NO. 656.  DECIDED JANUARY 12, 1970 


271 CAL.APP.2D 437, 77 CAL.RPTR.  570, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

VALENTINE BROOKES, ALEXANDER J. GILLESPIE, JR., C. RUDOLF PETERSON,
AND GEORGE W. BEATTY FOR APPELLANT. 

JOHN B. CLAUSEN FOR APPELLEES. 
..END :



FEDERAL EMPLOYEES V. CITY AND COUNTY OF DENVER, 396 U.S. 273 


       LOCAL 1497, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, ET AL.

           V. CITY AND COUNTY OF DENVER ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLORADO

        NO. 703.  DECIDED JANUARY 12, 1970 


301 F.SUPP.  1108, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 

GEORGE LOUIS CREAMER FOR APPELLANTS. 

MAX P. ZALL FOR APPELLEES. 
..END :






IN RE REED, 396 U.S. 274 


       IN RE REED

        APPEAL FROM THE SUPREME COURT OF DELAWARE

        NO. 706.  DECIDED JANUARY 12, 1970 


-- DEL.-- , 257 A.2D 382, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

WARREN B. BURT FOR APPELLANT. 

DAVID P. BUCKSON, ATTORNEY GENERAL, AND RUTH M. FERRELL, STATE
SOLICITOR, FOR THE STATE OF DELAWARE. 
..END :










LYON V. FLOURNOY, 396 U.S. 274 


       LYON V. FLOURNOY, CONTROLLER OF CALIFORNIA, ET AL.

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, THIRD

           APPELLATE DISTRICT

        NO. 715.  DECIDED JANUARY 12, 1970 


271 CAL.APP.2D 774, 76 CAL.RPTR.  869, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

RANDAL F. DICKEY, JR., AND ROBERT L. MCCARTY FOR APPELLANT. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, HAROLD B. HAAS,
ASSISTENT ATTORNEY GENERAL, AND WILLIAM J. POWER, DEPUTY ATTORNEY
GENERAL, FOR APPELLEES. 
..END :








SCHIAVONE V. UNITED STATES, 396 U.S. 275 


       MICHAEL SCHIAVONE & SONS, INC. V. UNITED STATES

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS

        NO. 722.  DECIDED JANUARY 12, 1970 


304 F.SUPP.  773, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 

JOSEPH S. OTERI FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :









ATCHISON, TOPEKA & SANTA FE RAILWAY CO. V. UNITED STATES, 396 U.S.
275 



       ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET AL. V. UNITED

           STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS

        NO. 741.  DECIDED JANUARY 12, 1970 


300 F.SUPP.  1339, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

JAMES E. NISBET, ED WHITE, AND JEREMIAH C. WATERMAN FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
FRITZ R. KAHN, AND JEROME NELSON FOR THE UNITED STATES ET AL., AND
WARREN PRICE, JR., AND JOHN W. MCCONNELL, JR., FOR SEA-LAND SERVICE, 

INC., APPELLEES. 
..END :























SANCHEZ V. NEW MEXICO, 396 U.S. 276 


       SANCHEZ V. NEW MEXICO

        APPEAL FROM THE SUPREME COURT OF NEW MEXICO

        NO. 974, MISC.  DECIDED JANUARY 12, 1970 


80 N.M. 438, 457 P.2D 370, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

PAT SHEEHAN FOR APPELLEE. 
..END :













ARIEL V. MASSACHUSETTS, 396 U.S. 276 


       ARIEL V. MASSACHUSETTS

        APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

        NO. 897, MISC.  DECIDED JANUARY 12, 1970 


-- MASS.-- , 248 N.E.2D 496, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUBLAS IS OF THE OPINION THAT CERTIORARI SHOULD BE
GRANTED. 

EDWARD J. DUGGAN FOR APPELLANT. 

ROBERT H. QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, JOHN WALL,
ASSISTANT ATTORNEY GENERAL, AND LAWRENCE P. COHEN, DEPUTY ASSISTANT
ATTORNEY GENERAL, FOR APPELLEE. 
..END :





DOYLE V. O'BRIEN, 396 U.S. 277 


       DOYLE ET AL. V. O'BRIEN, CHIEF OF POLICE OF SOMERVILLE, ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS

        NO. 1123, MISC.  DECIDED JANUARY 12, 1970 


304 F.SUPP.  704, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED 

EDWARD J. DUGGAN FOR APPELLANTS. 

ROBERT H. QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, JOHN WALL,
ASSISTANT ATTORNEY GENERAL,AND LAWRENCE P. COHEN, DEPUTY ASSISTANT
ATTORNEY GENERAL, FOR APPELLEES. 
..END :





SWAIN V. BOARD OF ADJUSTMENT OF THE CITY OF UNIVERSITY PARK, 396 U.S.
277 



       SWAIN ET AL. V. BOARD OF ADJUSTMENTS OF THE CITY OF

           UNIVERSITY PARK ET AL.

        APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, FIFTH

           SUPREME JUDICIAL DISTRICT

        NO. 714.  DECIDED JANUARY 12, 1970 


433 S.W.2D 727, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

WILLIAM BURROW FOR APPELLANTS. 

ALFRED L. RUEBEL FOR APPELLEES. 
..END :



FISHKIN V. UNITED STATES CIVIL SERVICE COMMISSION, 396 U.S. 278 


       FISHKIN ET AL. V. UNITED STATES CIVIL SERVICE COMMISSION ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

        NO. 681.  DECIDED JANUARY 12, 1970 


309 F.SUPP.  40, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR FAILURE TO DOCKET THE CASE WITHIN THE
TIME PRESCRIBED BY RULE 13. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND RICHARD L.
MAYERS, DEPUTY ATTORNEY GENERAL, FOR APPELLANT THE STATE OF
CALIFORNIA. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS,
AND ALAN S. ROSENTHAL FOR APPELLEES. 
..END :






















BONOMO V. JONES, 396 U.S. 278 


       BONOMO ET AL. V. JONES

        APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA

        NO. 662.  DECIDED JANUARY 12, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

ROBERT E. DAUER FOR APPELLEE. 
..END :












GRAHAM V. ALABAMA, 396 U.S. 279 


       GRAHAM V. ALABAMA

        APPEAL FROM THE COURT OF APPEALS OF ALABAMA

        NO. 738.  DECIDED JANUARY 12, 1970 


45 ALA.APP.  79, 224 SO.2D 905, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

TRUMAN HOBBS FOR APPELLANT. 

MACDONALD GALLION, ATTORNEY GENERAL OF ALABAMA, AND DAVID W. CLARK
AND LLOYD G. HART, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEE. 
..END :








SCHWEGMANN V. LOUISIANA STADIUM AND EXPOSITION DISTRICT, 396 U.S.
279 



       SCHWEGMANN V. LOUISIANA STADIUM AND EXPOSITION DISTRICT ET

           AL.

        APPEAL FROM THE SUPREME COURT OF LOUISIANA

        NO. 748.  DECIDED JANUARY 12, 1970 


254 LA. 579, 225 SO.2D 362, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

PAUL O. H. PIGMAN FOR APPELLANT. 

HARRY B. KELLEHER, GERALD P. FEDOROFF, AND JOHN E. JACKSON, JR., FOR
APPELLEES. 
..END :




EX PARTE CARRINGTON, 396 U.S. 280 


       EX PARTE CARRINGTON

        APPEAL FROM AND ON PETITION FOR WRIT OF CERTIORARI TO THE

           APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK,

           FIRST JUDICIAL DEPARTMENT

        NO. 787, MISC.  DECIDED JANUARY 12, 1970 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  THE PETITION FOR A WRIT OF CERTIORARI IS
DENIED. 

LEON B. POLSKY FOR CARRINGTON. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND JUDITH T. YOUNGER, ASSISTANT ATTORNEY
GENERAL, FOR THE STATE OF NEW YORK. 
..END :




NEW YORK V. UNITED STATES, 396 U.S. 281 


       NEW YORK V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK

        NO. 100.  DECIDED JANUARY 12, 1970  /1/ 


NO. 100, 299 F.SUPP.  989; NO. 520, 303 F.SUPP.  990, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENTS ARE AFFIRMED. 

/1/  TOGETHER WITH NO. 520, CITY OF SHERIDAN ET AL. V. UNITED STATES
ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF WYOMING. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, DUNTON F. TYNAN,
ASSISTANT SOLICITOR GENERAL, AND WALTER J. MYSKOWSKI FOR APPELLANT IN
NO. 100.  GORDON P. MACDOUGALL, WILLIAM G. MAHONEY, AND C. C. SHELDON,
ASSISTANT ATTORNEY GENERAL OF NEBRASKA, FOR APPELLANTS IN NO. 520. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
ROBERT W. GINNANE, AND JEROME NELSON FOR THE UNITED STATES ET AL. IN
NO. 100.  SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
MCLAREN, AND FRITZ R. KAHN FOR THE UNITED STATES ET AL. IN NO. 520. 
WALLACE R. STEFFEN FOR ERIE LACKAWANNA RAILWAY CO., APPELLEE IN NO.
100.  GEORGE G. COUGHLIN FOR BROOME COUNTY CHAMBER OF COMMERCE,
APPELLEE IN NO. 100, SUPPORTING THE POSITION OF THE APPELLANT.  HOWARD
J. TRIENENS AND RICHARD T. CUBBAGE FOR CHICAGO, BURLINGTON & QUINCY
RAILROAD CO., APPELLEE IN NO. 520. 
..END :

















SULLIVAN V. LITTLE HUNTING PARK, 396 U.S. 229 


       SULLIVAN ET AL. V. LITTLE HUNTING PARK, INC., ET AL.

        CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA

        NO. 33.  ARGUED OCTOBER 13, 1969-- DECIDED DECEMBER 15,

           1969 


LITTLE HUNTING PARK IS A VIRGINIA NONSTOCK CORPORATION OPERATING
PLAYGROUND FACILITIES AND A COMMUNITY PARK FOR RESIDENTS IN AN AREA IN
FAIRFAX COUNTY, VIRGINIA.  A MEMBERSHIP SHARE ENTITLES A SHAREHOLDER
AND HIS FAMILY TO USE ITS FACILITIES, AND UNDER THE BYLAWS WHEN HE
RENTS HIS HOUSE HE MAY ASSIGN THE SHARE TO HIS TENANT, SUBJECT TO
APPROVAL BY THE BOARD OF DIRECTORS.  THE FACILITIES HAVE BEEN OPEN TO
ANY WHITE PERSONS IN THE GEOGRAPHIC AREA.  PETITIONER SULLIVAN, WHO
OWNED AND LIVED IN A HOUSE IN THE AREA, LEASED TO PETITIONER FREEMAN
HIS MEMBERSHIP SHARE.  THE BOARD REFUSED APPROVAL OF THE ASSIGNMENT
BECAUSE FREEMAN WAS A NEGRO AND THEREAFTER EXPELLED SULLIVAN FROM THE
CORPORATION FOR PROTESTING THAT ACTION.  PETITIONERS EACH THEN SUED FOR
INJUNCTIVE RELIEF AND MONETARY DAMAGES.  THE TRIAL COURT, CONCLUDING
THAT LITTLE HUNTING PARK WAS A PRIVATE SOCIAL CLUB, DISMISSED THE
COMPLAINTS.  THE SUPREME COURT OF APPEALS OF VIRGINIA DENIED THE
APPEALS ON THE GROUND THAT THEY WERE NOT PERFECTED AS PROVIDED BY LAW
IN THAT OPPOSING COUNSEL HAD NOT BEEN GIVEN REASONABLE NOTICE AND
OPPORTUNITY, AS REQUIRED BY A PROCEDURAL RULE OF THAT COURT, TO EXAMINE
AND CORRECT THE TRANSCRIPTS.  OPPOSING COUNSEL HAD BEEN GIVEN THREE
DAYS' NOTICE FOR THAT PURPOSE AND HAD NOT COMPLAINED THAT THE PERIOD
WAS UNREASONABLE.  THIS COURT GRANTED CERTIORARI, VACATED THE
JUDGMENTS, AND REMANDED THE CASE TO THE SUPREME COURT OF APPEALS FOR
FURTHER CONSIDERATION IN LIGHT OF JONES V. MAYER CO., 392 U.S. 409. 
THAT COURT AGAIN REJECTED THE APPEALS ON THE BASIS OF ITS PREVIOUS
POSITION THAT IT LACKED JURISDICTION BECAUSE OF PETITIONERS' FAILURE TO
COMPLY WITH ITS PROCEDURAL RULE.  THIS COURT AGAIN GRANTED CERTIORARI. 
FREEMAN NO LONGER RESIDES IN THE AREA SERVED BY LITTLE HUNTING PARK AND
HIS CLAIM IS CONFINED TO DAMAGES.  HELD: 

1.  THE NOTICE RULE IS DISCRETIONARY AND NOT JURISDICTIONAL, NOT
HAVING BEEN SO CONSISTENTLY APPLIED TO VIRGINIA'S HIGHEST COURT AS TO
DEPRIVE IT OF JURISDICTION TO ENTERTAIN THE FEDERAL CLAIM PRESENTED
HERE OR TO BAR THIS COURT'S REVIEW OF THIS CASE BY CERTIORARI.  PP. 232
234. 

2.  PETITIONER SULLIVAN'S MEMBERSHIP SHARE IN LITTLE HUNTING PARK
(WHICH IS CLEARLY NOT A PRIVATE SOCIAL CLUB) WAS AN INTEGRAL PART OF
THE LEASE AND RESPONDENTS' RACIALLY DISCRIMINATORY REFUSAL TO APPROVE
THE ASSIGNMENT TO FREEMAN CONSTITUTED A VIOLATION OF 42 U.S.C. 1982,
CF. JONES V. MAYER CO., SUPRA, THE RIGHT TO LEASE BEING PROTECTED BY
THAT PROVISION AGAINST THE ACTION OF THIRD PARTIES AS WELL AS AGAINST
THE ACTION OF THE LESSOR.  PP. 234-237. 

3.  SULLIVAN HAS STANDING UNDER SEC. 1982 TO MAINTAIN THIS ACTION AS
THE "EFFECTIVE ADVERSARY" IN FREEMAN'S BEHALF.  BARROWS V. JACKSON, 346
U.S. 249, 259.  P. 237. 

4.  THE PUBLIC ACCOMMODATIONS PROVISION OF THE CIVIL RIGHTS ACT OF
1964 DOES NOT AFFECT THE COVERAGE OF 42 U.S.C. 1982.  SEE JONES V.
MAYER CO., SUPRA, AT 413-417.  PP. 237-238. 

5.  THE STATE COURT'S POWER TO GRANT GENERAL INJUNCTIVE RELIEF
INCLUDES THE POWER TO PROTECT THE FEDERAL RIGHT UNDER SEC. 1982 HERE
INVOLVED.  P. 238. 

6.  PETITIONERS ARE ENTITLED TO COMPENSATORY DAMAGES FOR VIOLATION
OF THEIR RIGHTS UNDER SEC. 1982 AND, THOUGH SUCH DAMAGES ARE MEASURED
BY FEDERAL STANDARDS, BOTH FEDERAL AND STATE RULES ON DAMAGES MAY BE
USED.  PP. 238-240. 

7.  THE FAIR-HOUSING PROVISIONS OF TITLE VIII OF THE CIVIL RIGHTS
ACT OF 1968, WHICH WAS ENACTED LONG AFTER PETITIONERS BROUGHT THEIR
SUITS, DO NOT FORECLOSE RELIEF HERE.  P. 240. 

REVERSED.  SEE:  209 VA. 279, 163 S.E.2D 588. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BLACK. 

THIS CASE, WHICH INVOLVES AN ALLEGED DISCRIMINATION AGAINST A NEGRO
FAMILY IN THE USE OF CERTAIN COMMUNITY FACILITIES, HAS BEEN HERE
BEFORE.  THE VIRGINIA TRIAL COURT DISMISSED PETITIONERS' COMPLAINTS AND
THE SUPREME COURT OF APPEALS OF VIRGINIA DENIED THE APPEALS SAYING THAT
THEY WERE NOT PERFECTED "IN THE MANNER PROVIDED BY LAW IN THAT OPPOSING
COUNSEL WAS NOT GIVEN REASONABLE WRITTEN NOTICE OF THE TIME AND PLACE
OF TENDERING THE TRANSCRIPT AND A REASONABLE OPPORTUNITY TO EXAMINE THE
ORIGINAL OR A TRUE COPY OF IT" UNDER THAT COURT'S RULE 5:1, SEC. 3(F). 
/1/ 

THE CASE CAME HERE AND WE GRANTED THE PETITION FOR CERTIORARI AND
VACATED THE JUDGMENTS AND REMANDED THE CASE TO THE SUPREME COURT OF
APPEALS FOR FURTHER CONSIDERATION IN LIGHT OF JONES V. MAYER CO., 392
U.S. 409.  392 U.S. 657.  ON THE REMAND, THE SUPREME COURT OF APPEALS
RESTATED ITS PRIOR POSITION STATING, "WE HAD NO JURISDICTION IN THE
CASES WHEN THEY WERE HERE BEFORE, AND WE HAVE NO JURISDICTION NOW.  WE
ADHERE TO OUR ORDERS REFUSING THE APPEALS IN THESE CASES."  209 VA.
279, 163 S.E.2D 588.  WE BROUGHT THE CASE HERE THE SECOND TIME ON A
PETITION FOR CERTIORARI.  394 U.S. 942. 

I 

WHEN THE CASE WAS FIRST HERE RESPONDENTS OPPOSED THE PETITION,
CLAIMING THAT RULE 5:1, SEC. 3(F), WAS NOT COMPLIED WITH.  PETITIONERS
FILED A REPLY BREIF ADDRESSING THEMSELVES TO THAT QUESTION.  THUS THE
POINT NOW TENDERED WAS FULLY EXPOSED WHEN THE CASE WAS HERE BEFORE,
THOUGH WE RULED ON IT SUB SILENTIO. 

IN THIS CASE COUNSEL FOR PETITIONERS ON JUNE 9, 1967, GAVE ORAL
NOTICE TO COUNSEL FOR RESPONDENTS THAT HE WAS SUBMITTING THE
TRANSCRIPTS TO THE TRIAL JUDGE.  HE WROTE COUNSEL FOR RESPONDENTS ON
THE SAME DAY TO THE SAME EFFECT, SAYING HE WAS SUBMITTING THE
TRANSCRIPTS TO THE TRIAL JUDGE THAT DAY, FILING MOTIONS TO CORRECT
THEM, AND ASKING THE TRIAL COURT TO DEFER SIGNING THEM FOR A TEN-DAY
PERIOD TO ALLOW COUNSEL FOR RESPONDENTS TIME TO CONSENT TO THE MOTIONS
OR HAVE THEM OTHERWISE DISPOSED OF BY THE COURT.  THE JUDGE, BEING
ABSENT FROM HIS CHAMBERS ON JUNE 9, RULED THAT HE HAD NOT RECEIVED THE
TRANSCRIPTS UNTIL JUNE 12.  THE MOTIONS TO CORRECT CAME ON FOR A
HEARING JUNE 16, AT WHICH TIME THE JUDGE RULED THAT HE WOULD NOT ACT ON
THE MOTIONS UNTIL COUNSEL FOR RESPONDENTS HAD AGREED OR DISAGREED WITH
THE CHANGES REQUESTED.  AFTER EXAMINING THE TRANSCRIPTS BETWEEN JUNE 16
AND JUNE 19, COUNSEL FOR RESPONDENTS TOLD COUNSEL FOR PETITIONERS THAT
HE HAD NO OBJECTIONS TO THE CORRECTIONS OR TO ENTRY OF ORDERS GRANTING
THE MOTIONS TO CORRECT.  COUNSEL FOR RESPONDENTS THEN SIGNED THE
PROPOSED ORDERS WHICH COUNSEL FOR PETITIONERS HAD PREPARED.  THE
PROPOSED ORDERS WERE SUBMITTED TO THE TRIAL JUDGE ON JUNE 20; AND ON
THE SAME DAY HE SIGNED THE TRANSCRIPTS, AFTER THEY HAD BEEN CORRECTED. 

AS WE READ ITS CASES, THE SUPREME COURT OF APPEALS STATED THE
CONTROLLING PRINCIPLE IN THE FOLLOWING LANGUAGE: 

     "THE REQUIREMENT THAT OPPOSING COUNSEL HAVE A REASONABLE

  OPPORTUNITY TO EXAMINE THE TRANSCRIPT SETS OUT THE PURPOSE OF

  REASONABLE NOTICE.  IF, AFTER RECEIPT OF NOTICE, OPPOSING COUNSEL

  BE AFFORDED REASONABLE OPPORTUNITY TO EXAMINE THE TRANSCRIPT, AND

TO MAKE OBJECTIONS THERETO, IF ANY HE HAS, BEFORE IT IS SIGNED BY

  THE TRIAL JUDGE, THE OBJECT OF REASONABLE NOTICE WILL HAVE BEEN

  ATTAINED."  BACIGALUPO V. FLEMING, 199 VA. 827, 835, 102 S.E.2D

  321, 326. 

IN THAT CASE OPPOSING COUNSEL HAD SEVEN DAYS TO EXAMINE THE RECORD
AND MAKE ANY OBJECTIONS.  IN THE RECORD SHOWS HE DID NOT AT THE TIME
COMPLAIN THAT HE WAS NOT GIVEN THAT "REASONABLE OPPORTUNITY" HE NEEDED
TO EXAMINE AND CORRECT THE TRANSCRIPTS. 

PETITIONERS' COUNSEL DOES NOT URGE-- NOR DO WE SUGGEST-- THAT THE
VIRGINIA SUPREME COURT OF APPEALS HAS FASHIONED A NOVEL PROCEDURAL
REQUIREMENT FOR THE FIRST TIME IN THIS CASE; CF. NAACP V. ALABAMA, 357
U.S. 449, 457-458; PAST DECISIONS OF THE STATE COURT REFUTE ANY SUCH
NOTICE.  SEE BACIGALUPO V. FLEMING, SUPRA; BOLIN V. LADERBERG, 207 VA.
795, 153 S.E.2D 251; COOK V. VIRGINIA HOLSUM BAKERIES, 207 VA. 815, 153
S.E.2D 209.  /2/  BUT THOSE SAME DECISIONS DO NOT ENABLE US TO SAY THAT
THE VIRGINIA COURT HAS SO CONSISTENTLY APPLIED ITS NOTICE REQUIREMENT
AS TO AMOUNT TO A SELF-DENIAL OF THE POWER TO ENTERTAIN THE FEDERAL
CLAIM HERE PRESENTED IF THE SUPREME COURT OF APPEALS DESIRES TO DO SO.
SEE HENRY V. MISSISSIPPI, 379 U.S. 443, 455-457 (BLACK, J.,
DISSENTING).  SUCH A RULE, MORE PROPERLY DEEMED DISCRETIONARY THAN
JURISDICTIONAL, DOES NOT BAR REVIEW HERE BY CERTIORARI. 

        II 

LITTLE HUNTING PARK, INC., IS A VIRGINIA NONSTOCK CORPORATION
ORGANIZED TO OPERATE A COMMUNITY PARK AND PLAYGROUND FACILITIES FOR THE
BENEFIT OF RESIDENTS IN AN AREA OF FAIRFAX COUNTY, VIRGINIA.  A
MEMBERSHIP SHARE ENTITLES ALL PERSONS IN THE IMMEDIATE FAMILY OF THE
SHAREHOLDER TO USE THE CORPORATION'S RECREATION FACILITIES.  UNDER THE
BYLAWS A PERSON OWNING A MEMBERSHIP SHARE IS ENTITLED WHEN HE RENTS HIS
HOME TO ASSIGN THE SHARE TO HIS TENANT, SUBJECT TO APPROVAL OF THE
BOARD OF DIRECTORS.  PAUL E. SULLIVAN AND HIS FAMILY OWNED A HOUSE IN
THIS AREA AND LIVED IN IT.  LATER HE BOUGHT ANOTHER HOUSE IN THE AREA
AND LEASED THE FIRST ONE TO T. R. FREEMAN, JR., AN EMPLOYEE OF THE U.S.
DEPARTMENT OF AGRICULTURE; AND ASSIGNED HIS MEMBERSHIP SHARE TO
FREEMAN.  THE BOARD REFUSED TO APPROVE THE ASSIGNMENT BECAUSE FREEMAN
WAS A NEGRO.  SULLIVAN PROTESTED THAT ACTION AND WAS NOTIFIED THAT HE
WOULD BE EXPELLED FROM THE CORPORATION BY THE BOARD.  A HEARING WAS
ACCORDED HIM AND HE WAS EXPELLED, THE BOARD TENDERING HIM CASH FOR HIS
TWO SHARES. 

SULLIVAN AND FREEMAN SUED UNDER 42 U.S.C. 1981, 1982 FOR INJUNCTIONS
AND MONETARY DAMAGES.  SINCE FREEMAN NO LONGER RESIDES IN THE AREA
SERVED BY LITTLE HUNTING PARK, INC., HIS CLAIM IS LIMITED SOLELY TO
DAMAGES. 

THE TRIAL COURT DENIED RELIEF TO EACH PETITIONER.  WE REVERSE THOSE
JUDGMENTS. 

IN JONES V. MAYER CO., 392 U.S. 409, WE REVIEWED AT LENGTH THE
LEGISLATIVE HISTORY OF 42 U.S.C. 1982.  /3/  WE CONCLUDED THAT IT
REACHES BEYOND STATE ACTION AND OPERATES UPON THE UNOFFICIAL ACTS OF
PRIVATE INDIVIDUALS AND THAT IT IS AUTHORIZED BY THE ENABLING CLAUSE OF
THE THIRTEENTH AMENDMENT.  WE SAID: 

     "NEGRO CITIZENS, NORTH AND SOUTH, WHO SAW IN THE THIRTEENTH

  AMENDMENT A PROMISE OF FREEDOM-- FREEDOM TO 'GO AND COME AT

  PLEASURE' AND TO 'BUY AND SELL WHEN THEY PLEASE'-- WOULD BE LEFT

  WITH 'A MERE PAPER GUARANTEE' IF CONGRESS WERE POWERLESS TO

  ASSURE THAT A DOLLAR IN THE HANDS OF A NEGRO WILL PURCHASE THE

  SAME THING AS A DOLLAR IN THE HANDS OF A WHITE MAN.  AT THE VERY

  LEAST, THE FREEDOM THAT CONGRESS IS ENPOWERED TO SECURE UNDER THE

  THIRTEENTH AMENDMENT INCLUDES THE FREEDOM TO BUY WHATEVER A WHITE

  MAN CAN BUY, THE RIGHT TO LIVE WHEREVER A WHITE MAN CAN LIVE.  IF

  CONGRESS CANNOT SAY THAT BEING A FREE MAN MEANS AT LEAST THIS

  MUCH, THEN THE THIRTEENTH AMENDMENT MADE A PROMISE THE NATION

  CANNOT KEEP."  392 U.S.,AT 443. 

THE VIRGINIA TRIAL COURT RESTED ON ITS CONCLUSION THAT LITTLE
HUNTING PARK WAS A PRIVATE SOCIAL CLUB.  BUT WE FIND NOTHING OF THE
KIND ON THIS RECORD.  THERE WAS NO PLAN OR PURPOSE OF EXCLUSIVENESS. 
IT IS OPEN TO EVERY WHITE PERSON WITHIN THE GEOGRAPHIC AREA, THERE
BEING NO SELECTIVE ELEMENT OTHER THAN RACE.  SEE DANIEL V. PAUL, 395
U.S. 298, 301-302.  WHAT WE HAVE HERE IS A DEVICE FUNCTIONALLY
COMPARABLE TO A RACIALLY RESTRICTIVE COVENANT, THE JUDICIAL ENFORCEMENT
OF WHICH WAS STRUCK DOWN IN SHELLEY V. KRAEMER, 334 U.S. 1, BY REASON
OF THE FOURTEENTH AMENDMENT. 

IN JONES V. MAYER CO., THE COMPLAINT CHARGED A REFUSAL TO SELL
PETITIONER A HOME BECAUSE HE WAS BLACK.  IN THE INSTANT CASE THE
INTEREST CONVEYED WAS A LEASEHOLD OF REALTY COUPLED WITH A MEMBERSHIP
SHARE IN A NONPROFIT COMPANY ORGANIZED TO OFFER RECREATIONAL FACILITIES
TO OWNERS AND LESSEES OF REAL PROPERTY IN THAT RESIDENTIAL AREA.  IT IS
NOT MATERIAL WHETHER THE MEMBERSHIP SHARE BE CONSIDERED REALTY OR
PERSONAL PROPERTY, AS SEC. 1982 COVERS BOTH.  SECTION 1982 COVERS THE
RIGHT" TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND
PERSONAL PROPERTY."  THERE IS A SUGGESTION THAT TRANSFER ON THE BOOKS
OF THE CORPORATION OF FREEMAN'S SHARE IS NOT COVERED BY ANY OF THOSE
BERBS.  THE SUGGESTION IS WITHOUT MERIT.  THERE HAS NEVER BEEN ANY
DOUBT BUT THAT FREEMAN PAID PART OF HIS $129 MONTHLY RENTAL FOR THE
ASSIGNMENT OF THE MEMBERSHIP SHARE IN LITTLE HUNTING PARK.  THE
TRANSACTION CLEARLY FELL WITHIN THE "LEASE."  THE RIGHT TO "LEASE"  IS
PROTECTED BY SEC. 1982 AGAINST THE ACTIONS OF THIRD PARTIES, AS WELL AS
AGAINST THE ACTIONS OF THE IMMEDIATE LESSOR.  RESPONDENTS' ACTIONS IN
REFUSING TO APPROVE THE ASSIGNMENT OF THE MEMBERSHIP SHARE IN THIS CASE
WAS CLEARLY AN INTERFERENCE WITH FREEMAN'S RIGHT TO "LEASE."  A NARROW
CONSTRUCTION OF THE LANGUAGE OF SEC. 1982 WOULD BE QUITE INCONSISTENT
WITH THE BROAD AND SWEEPING NATURE OF THE PROTECTION MEANT TO BE
AFFORDED BY SEC. 1 OF THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27, FROM
WHICH SEC. 1982 WAS DERIVED.  SEE 392 U.S.,AT 422-437. 

WE TURN TO SULLIVAN'S EXPULSION FOR THE ADVOCACY OF FREEMAN'S
CAUSE.  IF THAT SANCTION, BACKED BY A STATE COURT JUDGMENT, CAN BE
IMPOSED, THEN SULLIVAN IS PUNISHED FOR TRYING TO VINDICATE THE RIGHTS
OF MINORITIES PROTECTED BY SEC. 1982.  SUCH A SANCTION WOULD GIVE
IMPETUS TO THE PERPETUATION OF RACIAL RESTRICTIONS ON PROPERTY.  THAT
IS WHY WE SAID IN BARROWS V. JACKSON, 346 U.S. 249, 259, THAT THE WHITE
OWNER IS AT TIMES "THE ONLY EFFECTIVE ADVERSARY" OF THE UNLAWFUL
RESTRICTIVE COVENANT.  UNDER THE TERMS OF OUR DECISION IN BARROWS,
THERE CAN BE NO QUESTION BUT THAT SULLIVAN HAS STANDING TO MAINTAIN
THIS ACTION. 

WE NOTED IN JONES V. MAYER CO., THAT THE FAIR HOUSING TITLE OF THE
CIVIL RIGHTS ACT OF 1968, 82 STAT. 81, IN NO WAY IMPAIRED THE SANCTION
OF SEC. 1982.  392 U.S.,AT 413-417.  WHAT WE SAID THERE IS ADEQUATE TO
DISPOSE OF THE SUGGESTION THAT THE PUBLIC ACCOMMODATIONS PROVISION OF
THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 243, IN SOME WAY SUPERSEDES THE
PROVISIONS OF THE 1866 ACT.  FOR THE HIERARCHY OF ADMINISTRATIVE
MACHINERY PROVIDED BY THE 1964 ACT IS NOT AT WAR WITH SURVIVAL OF THE
PRINCIPLES EMBODIED IN SEC. 1982.  THERE IS, MOREOVER, A SAVING CLAUSE
IN THE 1964 ACT AS RESPECTS "ANY RIGHT BASED ON ANY OTHER FEDERAL . . .
LAW NOT INCONSISTENT" WITH THAT ACT.  /4/ 

WITH THE 1964 ACT, WHICH HAS BEEN CONSTRUED AS NOT "PRE-EMPTING EVERY
OTHER MODE OF PROTECTING A FEDERAL 'RIGHT' OR AS GRANTING IMMUNITY" TO
THOSE WHO HAD LONG BEEN SUBJECT TO FEDERAL LAW.  UNITED STATES V.
JOHNSON, 390 U.S. 563, 566. 

WE HELD IN JONES V. MAYER CO. THAT ALTHOUGH SEC. 1982 IS COUCHED IN
DECLARATORY TERMS AND PROVIDES NO EXPLICIT METHOD OF ENFORCEMENT, A
FEDERAL COURT HAS POWER TO FASHION AN EFFECTIVE EQUITABLE REMEDY.  392
U.S.,AT 414, N. 13.  THAT FEDERAL REMEDY FOR THE PROTECTION OF A
FEDERAL RIGHT IS AVAILABLE IN THE STATE COURT, IF THAT COURT IS
EMPOWERED TO GRANT INJUNCTIVE RELIEF GENERALLY, AS IS THE VIRGINIA
COURT.  VA. CODE ANN. SEC. 8-610 (1957 REPL.  VOL.). 

FINALLY, AS TO DAMAGES, CONGRESS, BY 28 U.S.C. 1343(4), CREATED
FEDERAL JURISDICTION FOR "DAMAGES OR . . . EQUITABLE OR OTHER RELIEF
UNDER ANY ACT OF CONGRESS PROVIDING FOR THE PROTECTION OF CIVIL RIGHTS
. . . ."  WE RESERVED IN JONES V. MAYER CO., 392 U.S.,AT 414-415, N.
14, THE QUESTION OF WHAT DAMAGES, IF ANY, MIGHT BE APPROPRIATELY
RECOVERED FOR A VIOLATIO, OF SEC. 1982. 

WE HAD A LIKE PROBLEM IN BELL V. HOOD, 327 U.S. 678, WHERE SUIT WAS
BROUGHT AGAINST FEDERAL OFFICERS FOR ALLEGED VIOLATIONS OF THE FOURTH
AND FIFTH AMENDMENTS.  THE FEDERAL STATUTE DID NOT IN TERMS AT LEAST
PROVIDE ANY REMEDY.  WE SAID: 

     "(WHERE FEDERALLY PROTECTED RIGHTS HAVE BEEN INVADED, IT HAS

  BEEN THE RULE FROM THE BEGINNING THAT COURTS WILL BE ALERT TO

  ADJUST THEIR REMEDIES SO AS TO GRANT THE NECESSARY RELIEF.  AND

  IT IS ALSO WELL SETTLED THAT WHERE LEGAL RIGHTS HAVE BEEN

  INVADED, AND A FEDERAL STATUTE PROVIDES FOR A GENERAL RIGHT TO

  SUE FOR SUCH INVASION, FEDERAL COURTS MAY USE ANY AVAILABLE

  REMEDY TO MAKE GOOD THE WRONG DONE."  ID., AT 684. 

THE EXISTENCE OF A STATUTORY RIGHT IMPLIES THE EXISTENCE OF ALL
NECESSARY AND APPROPRIATE REMEDIES.  SEE TEXAS & N.O.R. CO. V. RAILWAY
CLERKS, 281 U.S. 548, 569-570.  AS STATED IN TEXAS & PACIFIC R. CO. V.
RIGSBY, 241 U.S. 33, 39: 

     "A DISREGARD OF THE COMMAND OF THE STATUTE IS A WRONGFUL ACT,

  AND WHERE IT RESULTS IN DAMAGE TO ONE OF THE CLASS FOR WHOSE

  ESPECIAL BENEFIT THE STATUTE WAS ENACTED, THE RIGHT TO RECOVER

  THE DAMAGES FROM THE PARTY IN DEFAULT IS IMPLIED . . . ." 

COMPENSATORY DAMAGES FOR DEPRIVATION OF A FEDERAL RIGHT ARE GOVERNED
BY FEDERAL STANDARDS, AS PROVIDED BY CONGRESS IN 42 U.S.C. 1988, WHICH
STATES: 

     "THE JURISDICTION IN CIVIL . . . MATTERS CONFERRED ON THE

  DISTRICT COURTS BY THE PROVISIONS OF THIS CHAPTER AND TITLE 18,

  FOR THE PROTECTION OF ALL PERSONS IN THE UNITED STATES IN THEIR

  CIVIL RIGHTS, AND FOR THEIR VINDICATION, SHALL BE EXERCISED AND

  ENFORCED IN CONFORMITY WITH THE LAWS OF THE UNITED STATES, SO FAR

  AS SUCH LAWS ARE SUITABLE TO CARRY THE SAME INTO EFFECT; BUT IN

ALL CASES WHERE THEY ARE NOT ADAPTED TO THE OBJECT, OR ARE

DEFICIENT IN THE PROVISIONS NECESSARY TO FURNISH SUITABLE

  REMEDIES AND PUNISH OFFENSES AGAINST LAW, THE COMMON LAW, AS

  MODIFIED AND CHANGED BY THE CONSTITUTION AND STATUTES OF THE

  STATE WHEREIN THE COURT HAVING JURISDICTION OF SUCH CIVIL OR

  CRIMINAL CAUSE IS HELD, SO FAR AS THE SAME IS NOT INCONSISTENT

  WITH THE CONSTITUTION AND LAWS OF THE UNITED STATES, SHALL BE

  EXTENDED TO AND GOVERN THE SAID COURTS IN THE TRIAL AND

  DISPOSITION OF THE CAUSE . . . ." 

THIS MEANS, AS WE READ SEC. 1988, THAT BOTH FEDERAL AND STATE RULES
ON DAMAGES MAY BE UTILIZED, WHICHEVER BETTER SERVES THE POLICIES
EXPRESSED IN THE FEDERAL STATUTES.  CF. BRAZIER V. CHERRY, 293 F.2D
401.  THE RULE OF DAMAGES, WHETHER DRAWN FROM FEDERAL OR STATE SOURCES,
IS A FEDERAL RULE RESPONSIVE TO THE NEED WHENEVER A FEDERAL RIGHT IS
IMPAIRED.  WE DO NOT EXPLORE THE PROBLEM FURTHER, AS THE ISSUE OF
DAMAGES WAS NOT LITIGATED BELOW.     IT IS SUGGESTED, NOT BY ANY PARTY,
BUT BY THE DISSENT, THAT ANY RELIEF SHOULD AWAIT PROCEEDINGS UNDER THE
FAIR HOUSING PROVISIONS OF TITLE VIII OF THE CIVIL RIGHTS ACT OF 1968. 
82 STAT. 81, 42 U.S.C. 3601 ET SEQ. (1964 ED., SUPP. IV).  BUT
PETITIONERS' SUITS WERE COMMENCED ON MARCH 16, 1966, TWO YEARS BEFORE
THAT ACT WAS PASSED.  IT WOULD BE IRRESPONSIBLE JUDICIAL ADMINISTRATION
TO DISMISS A SUIT BECAUSE OF AN INTERVENING ACT /5/  WHICH HAS NO
POSSIBLE APPLICATION TO EVENTS LONG PRECEDING ITS ENACTMENT. 

              REVERSED. 

/1/  RULE 5:1 WHICH IS ENTITLED "THE RECORD ON APPEAL" STATES THE
FOLLOWING IN SEC. 3(F): 

"SUCH A TRANSCRIPT OR STATEMENT NOT SIGNED BY COUNSEL FOR ALL
PARTIES BECOMES PART OF THE RECORD WHEN DELIVERED TO THE CLERK, IF IT
IS TENDERED TO THE JUDGE WITHIN 60 DAYS AND SIGNED AT THE END BY HIM
WITHIN 70 DAYS AFTER FINAL JUDGMENT.  IT SHALL BE FORTHWITH DELIVERED
TO THE CLERK WHO SHALL CERTIFY ON IT THE DATE HE RECEIVES IT.  COUNSEL
TENDERING THE TRANSCRIPT OR STATEMENT SHALL GIVE OPPOSING COUNSEL
REASONABLE WRITTEN NOTICE OF THE TIME AND PLACE OF TENDERING IT AND A
REASONABLE OPPORTUNITY TO EXAMINE THE ORIGINAL OR A TRUE COPY OF IT.
THE SIGNATURE OF THE JUDGE, WITHOUT MORE, WILL BE DEEMED TO BE HIS
CERTIFICATION THAT COUNSEL HAD THE REQUIRED NOTICE AND OPPORTUNITY, AND
THAT THE TRANSCRIPT OR STATEMENT IS AUTHENTIC.  HE SHALL NOTE ON IT THE
DATE IT WAS TENDERED TO HIM AND THE DATE IT WAS SIGNED BY HIM." 

/2/  IN BOLIN V. LADERBERG, 207 VA. 795, 153 S.E.2D 251, APPELLANTS'
COUNSEL HAD DELIVERED THE TRANSCRIPT TO APPELLEES' COUNSEL ON NOVEMBER
24, 1965.  THE TRANSCRIPT WAS TENDERED TO THE TRIAL JUDGE ON NOVEMBER
26, AND WAS SIGNED BY HIM ON DECEMBER 3.  APPELLEES MOVED TO DISMISS
THE APPEAL ON THE GROUND THAT THEY HAD NOT BEEN GIVEN "REASONABLE
NOTICE AND OPPORTUNITY" UNDER RULE 5:1.  THE COURT STATED THAT THE
MOTION SHOULD BE OVERRULED ON THE GROUND THAT RULE 5:1 PROVIDES THAT
"(THE SIGNATURE OF THE JUDGE, WITHOUT MORE, WILL BE DEEMED TO BE HIS
CERTIFICATION THAT COUNSEL HAD THE REQUIRED NOTICE AND OPPORTUNITY, AND
THAT THE TRANSCRIPT . . . IS AUTHENTIC."  THE COURT NOTED THAT THE
JUDGE'S "SIGNATURE APPEARS ON THE TRANSCRIPT WITHOUT MORE AND IS,
THEREFORE, HIS CERTIFICATION THAT COUNSEL FOR (APPELLEES) HAD THE
REQUIRED NOTICE OF TENDERING THE TRANSCRIPT AND THE REQUIRED
OPPORTUNITY TO EXAMINE IT."  ID., AT 797, 153 S.E.2D,AT 253. 

IN COOK V. VIRGINIA HOLSUM BAKERIES, 207 VA. 815, 153 S.E.2D 209,
NOTICE THAT THE TRANSCRIPT WOULD BE TENDERED TO THE TRIAL JUDGE ON
OCTOBER 20, 1965, WAS GIVEN TO COUNSEL FOR THE APPELLEE ON OCTOBER 15. 
APPELLANT'S COUNSEL, HOWEVER, DID NOT OBTAIN A COPY OF THE TRANSCRIPT
UNTIL OCTOBER 19.  AT A CONFERENCE HELD ON THAT SAME DATE, COUNSEL FOR
BOTH PARTIES WENT OVER THE TRANSCRIPT AND AGREED ON CERTAIN CORRECTIONS
AND ADDITIONS.  AT THE HEARING ON OCTOBER 20, APPELLEE'S COUNSEL
CLAIMED HE HAD NOT BEEN GIVEN THE REASONABLE NOTICE AND OPPORTUNITY
REQUIRED BY RULE 5:1.  HE THEN SUGGESTED NUMEROUS CHANGES, AND THE
TRIAL JUDGE ORDERED THE TRANSCRIPT ALTERED TO REFLECT THOSE CHANGES. 
THE REVISED TRANSCRIPT WAS TENDERED TO THE TRIAL JUDGE THE NEXT DAY,
OCTOBER 21, AND SIGNED BY HIM THAT SAME DAY.  ON APPEAL, APPELLEE MOVED
TO DISMISS ON THE GROUND THAT THE RULE 5:1 REQUIREMENTS HAD NOT BEEN
SATISFIED.  THE VIRGINIA SUPREME COURT OF APPEALS OVERRULED THE MOTION,
STATING:  "THE NARRATIVE WAS AMENDED TO MEET THE SUGGESTED CHANGES OF
COUNSEL FOR (APPELLEE), AND HE CONCEDED IN ORAL ARGUMENT BEFORE US THAT
THE STATEMENT SIGNED BY THE TRIAL JUDGE WAS CORRECT."  ID., AT 817, 153
S.E.2D, AT 210. 

/3/  42 U.S.C. 1982 PROVIDES: 

"ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT, IN
EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS THEREOF TO
INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL
PROPERTY." 

/4/  SECTION 207(B) OF THEACT OF JULY 2, 1964, 78 STAT. 246,
PROVIDES: 

"THE REMEDIES PROVIDED IN THIS TITLE SHALL BE THE EXCLUSIVE MEANS OF
ENFORCING THE RIGHTS BASED ON THIS TITLE, BUT NOTHING IN THIS TITLE
SHALL PRECLUDE ANY INDIVIDUAL OR ANY STATE OR LOCAL AGENCY FROM
ASSERTING ANY RIGHT BASED ON ANY OTHER FEDERAL OR STATE LAW NOT
INCONSISTENT WITH THIS TITLE, INCLUDING ANY STATUTE OR ORDINANCE
REQUIRING NONDISCRIMINATION IN PUBLIC ESTABLISHMENTS OR ACCOMMODATIONS,
OR FROM PURSUING ANY REMEDY, CIVIL OR CRIMINAL, WHICH MAY BE AVAILABLE
FOR THE VINDICATION OR ENFORCEMENT OF SUCH RIGHT." 

/5/  THE ACT IS NOT FULLY EFFECTIVE UNTIL DECEMBER 31, 1969.  42
U.S.C. 3603(B) (1964 ED., SUPP. IV).  EVEN AT THAT TIME IT WILL NOT
APPLY TO A "SINGLE-FAMILY HOUSE" IF THE HOUSE IS SOLD WITHOUT THE
SERVICES OF A REAL ESTATE BROKER AND WITHOUT THE NOTICE DESCRIBED IN
SEC. 3604(C) (1964 ED., SUPP. IV).  SEE SEC. 3603(B) (1964 ED., SUPP.
IV).  SO NO ONE KNOWS WHETHER THE NEW ACT WOULD APPLY TO THESE ANCIENT
TRANSACTIONS, EVEN IF THEY AROSE AFTER DECEMBER 31, 1969. 

MR. JUSTICE HARLAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

IN JONES V. MAYER CO., 392 U.S. 409 (1968), THE COURT DECIDED THAT A
LITTLE-USED SECTION OF A 100-YEAR-OLD STATUTE PROHIBITED PRIVATE RACIAL
DISCRIMINATION IN THE SALE OF REAL PROPERTY.  THIS CONSTRUCTION OF A
VERY OLD STATUTE, IN NO WAY REQUIRED BY ITS LANGUAGE, /1/  AND OPEN TO
SERIOUS QUESTION IN LIGHT OF THE STATUTE'S LEGISLATIVE HISTORY, /2/
SEEMED TO ME UNNECESSARY AND UNWISE BECAUSE OF THE RECENTLY PASSED, BUT
THEN NOT YET FULLY EFFECTIVE, FAIR HOUSING TITLE OF THE CIVIL RIGHTS
ACT OF 1968 (HEREAFTER FAIR HOUSING LAW).  /3/  TODAY, THE COURT GOES
YET BEYOND JONES (1) BY IMPLYING A PRIVATE RIGHT TO DAMAGES FOR
VIOLATIONS OF 42 U.S.C. 1982; (2) BY INTERPRETING SEC. 1982 TO PROHIBIT
A COMMUNITY RECREATION ASSOCIATION FROM WITHHOLDING, ON THE BASIS OF
RACE, APPROVAL OF AN ASSIGNMENT OF A MEMBERSHIP THAT WAS TRANSFERRED
INCIDENT TO A LEASE OF REAL PROPERTY; AND (3) BY DECIDING THAT A WHITE
PERSON WHO IS EXPELLED FROM A RECREATION ASSOCIATION "FOR THE ADVOCACY
OF (A NEGRO'S) CAUSE" HAS "STANDING" TO MAINTAIN AN ACTION FOR RELIEF
UNDER SEC. 1982. 

BECAUSE THE FAIR HOUSING LAW WILL BECOME FULLY EFFECTIVE LESS THAN
THREE WEEKS FROM NOW, /4/  I THINK THE MAJORITY EVEN MORE UNWISE THAN
IT WAS IN JONES, IN PRECIPITATELY BREATHING STILL MORE LIFE INTO SEC.
1982, WHICH IS BOTH VAGUE AND OPEN-ENDED, WHEN CONGRESS HAS PROVIDED
THIS MODERN STATUTE, CONTAINING VARIOUS DETAILED REMEDIAL PROVISIONS
AIMED AT ELIMINATING RACIAL DISCRIMINATION IN HOUSING.  FOR THIS
REASON, WHICH I ELABORATE IN PART II, I WOULD DISMISS THE WRIT IN THIS
CASE AS IMPROVIDENTLY GRANTED.  TO PROVIDE EXAMPLES OF SOME OF THE
DIFFICULTIES THE COURT WILL INEVITABLY ENCOUNTER IF IT CONTINUES TO
EMPLOY SEC. 1982 IN THESE SORTS OF CASES, I EXAMINE IN PART III THE
UNDISCRIMINATING MANNER IN WHICH THE MAJORITY DEALS WITH, AND FOR THE
MOST PART IGNORES, THE COMPLEXITIES INVOLVED IN (1) GIVING SULLIVAN
RELIEF AND (2) ENGRAFTING A DAMAGE REMEDY ONTO SEC. 1982 IN A CASE
ARISING FROM A STATE COURT.  BUT, FIRST, I CONSIDER THE THRESHOLD
QUESTION OF WHETHER THERE IS PRESENT IN THIS CASE AN ADEQUATE STATE
GROUND WHICH WOULD BAR REVIEW BY THIS COURT. 

        I

        ADEQUACY OF THE STATE GROUND 

THE VIRGINIA SUPREME COURT OF APPEALS, BOTH BEFORE AND AFTER THIS
COURT'S EARLIER REMAND, REFUSED TO CONSIDER THE FEDERAL QUESTIONS
PRESENTED TO IT BECAUSE IT FOUND THAT PETITIONERS HAD FAILED TO GIVE
OPPOSING COUNSEL "REASONABLE WRITTEN NOTICE OF THE TIME AND PLACE OF
TENDERING THE TRANSCRIPT AND A REASONABLE OPPORTUNITY TO EXAMINE THE
ORIGINAL OR A TRUE COPY OF IT," IN VIOLATION OF RULE 5:1, SEC. 3(F), OF
THE LOCAL RULES OF COURT.  /5/  THE MAJORITY HERE SUGGESTS THAT THE
STATE'S PROCEDURAL REQUIREMENT, THOUGH NOT A "NOVEL" ONE ,FASHIONED . .
. FOR THE FIRST TIME IN THIS CASE," NEVERTHELESS HAD NOT BEEN "SO
CONSISTENTLY APPLIED . . . AS TO AMOUNT TO A SELF-DENIAL OF THE POWER
TO ENTERTAIN THE FEDERAL CLAIM."  THE MAJORITY THEN GOES ON TO CONCLUDE
THAT BECAUSE THE STATE'S PROCEDURAL RULE IS "MORE PROPERLY DEEMED
DISCRETIONARY THAN JURISDICTIONAL," REVIEW SHOULD NOT BE BARRED HERE. 
I AGREE WITH THE MAJORITY'S CONCLUSION THAT THERE IS NO ADEQUATE STATE
GROUND SHOWN, BUT I FIND MYSELF UNABLE TO SUBSCRIBE TO THE MAJORITY'S
REASONING, WHICH APPEARS TO ME UNCLEAR AND CONFUSING. 

I AM NOT CERTAIN WHAT THE MAJORITY MEANS IN ITS APPARENT DISTINCTION
BETWEEN RULES THAT IT DEEMS "DISCRETIONARY" AND THOSE THAT IT DEEMS
"JURISDICTIONAL."  PERHAPS THE MAJORITY WISHES TO SUGGEST THAT THE
DISMISSALS OF PETITIONERS' WRITS OF ERROR BY THE SUPREME COURT OF
APPEALS WERE SIMPLY AD HOC DISCRETIONARY REFUSALS TO ACCEPT PLENARY
REVIEW OF THE LOWER COURT'S DECISIONS, ANALOGOUS TO THIS COURT'S DENIAL
OF CERTIORARI.  IF THIS WERE ALL THE VIRGINIA SUPREME COURT OF APPEALS
HAD DONE, REVIEW OF A FEDERAL QUESTION PROPERLY RAISED BELOW WOULD OF
COURSE NOT BE BARRED HERE.  THE MERE DISCRETIONARY REFUSAL OF THE
HIGHEST STATE COURT TO GRANT REVIEW OF A LOWER COURT DECISION DOES NOT
PROVIDE AN ADEQUATE STATE GROUND.  IN SUCH CIRCUMSTANCES, THE DECISION
OF THE LOWER COURT, RATHER THAN THE ORDER OF THE HIGHEST COURT REFUSING
REVIEW, BECOMES THE JUDGMENT OF THE "HIGHEST COURT OF A STATE IN WHICH
A DECISION COULD BE HAD" FOR PURPOSES OF 28 U.S.C. 1257, OUR
JURISDICTIONAL STATUTE.  /6/ 

BUT THIS CASE CLEARLY DOES NOT PRESENT THIS KIND OF DISCRETIONARY
REFUSAL OF A STATE APPELLATE COURT TO ACCEPT REVIEW.  ALTHOUGH THE
VIRGINIA SUPREME COURT OF APPEALS MAY WELL HAVE THE "DISCRETION" TO
REFUSE REVIEW /7/  IN A PARTICULAR CASE WITHOUT GIVING REASONS OR
RECONCILING ITS REFUSAL WITH EARLIER DECISIONS, THE DISMISSAL BELOW WAS
NOT SIMPLY AN AD HOC EXERCISE OF THE POWER NOT TO REVIEW EVERY CASE
PRESENTED.  INSTEAD THE STATE COURT DISMISSED THE PETITIONS FOR REVIEW
FOR A STATED REASON, NAMELY, A LACK OF "JURISDICTION TO ENTERTAIN THE
APPEALS BECAUSE OF THE FAILURE OF COUNSEL FOR THE SULLIVANS AND THE
FREEMANS TO MEET THE REQUIREMENTS OF RULE 5:1, SEC. 3(F)."  WHEN A
STATE APPELLATE COURT'S REFUSAL TO CONSIDER THE MERITS OF A CASE IS
BASED ON THE FAILURE TO CONFORM TO A STATE RULE OF PRACTICE TO THE CASE
AT HAND DOES NOT CONSTITUTE AN ADEQUATE STATE GROUND.  THIS IS SO QUITE
IRRESPECTIVE OF WHETHER THE STATE APPELLATE COURT HAD THE POWER TO
REFUSE REVIEW FOR NO REASON AT ALL.  /8/ 

THE MAJORITY MIGHT HAVE ANOTHER MEANING IN MIND WHEN IT DESCRIBES
THE STATE'S PROCEDURAL RULE AS "DISCRETIONARY."  IT MAY BE SUGGESTING
THAT "REASONABLE WRITTEN NOTICE," AND ,REASONABLE OPPORTUNITY TO
EXAMINE" ARE SUCH FLEXIBLE STANDARDS THAT THE VIRGINIA SUPREME COURT OF
APPEALS HAS THE "DISCRETION" TO DECIDE A CLOSE CASE EITHER OF TWO WAYS
WITHOUT CREATING AN OBVIOUS CONFLICT WITH EARLIER DECISIONS.  IF THIS
IS WHAT THE MAJORITY MEANS BY "DISCRETIONARY RULE," THEN I MUST
REGISTER MY DISAGREEMENT.  THIS KIND OF "DISCRETION" IS NOTHING MORE
THAN "THE JUDICIAL FORMULATION OF LAW," FOR A COURT HAS AN OBLIGATION
TO BE REASONABLY CONSISTENT AND "TO EXPLAIN THE DECISION, INCLUDING THE
REASON FOR ACCORDING DIFFERENT TREATMENT TO THE INSTANT CASE."  /9/
SURELY A STATE GROUND IS NO LESS ADEQUATE SIMPLY BECAUSE IT INVOLVES A
STANDARD THAT REQUIRES A JUDGMENT OF WHAT IS REASONABLE, AND BECAUSE
THE RESULT MAY TURN ON A CLOSE ANALYSIS OF THE FACTS OF A PARTICULAR
CASE IN LIGHT OF COMPETING POLICY CONSIDERATIONS. 

ALTHOUGH THE MAJORITY'S LOOSE USE OF THE WORD "DISCRETIONARY" MAY
SUGGEST THAT ANY DECISION MADE PURSUANT TO A BROAD STANDARD CANNOT
PROVIDE AN ADEQUATE STATE GROUND, I THINK EXAMINATION OF THE EARLIER
OPINIONS OF THE VIRGINIA SUPREME COURT OF APPEALS, SEVERAL OF WHICH ARE
CITED BY THE MAJORITY, PROVIDES THE PROPER FOUNDATION FOR THE RESULT
REACHED BY THE MAJORITY, UNDER THE PRINCIPLE OF NAACP V. ALABAMA, 357
U.S. 449 (1958). 

THE FINDING OF THE VIRGINIA SUPREME COURT OF APPEALS OF A VIOLATION
OF RULE 5:1, SEC. 3(F), IN THIS CASE WAS IN MY VIEW BASED ON A STANDARD
OF REASONABLENESS MUCH STRICTER THAN THAT WHICH COULD HAVE BEEN FAIRLY
EXTRACTED FROM THE EARLIER VIRGINIA CASES APPLYING THE RULE /10/  AND
ITS PREDECESSOR STATUTE.  /11/  IN OTHER WORDS, ALTHOUGH RULE 5:1, SEC.
3(F), ITSELF MAY NOT BE NOVEL, THE STANDARD IMPLICITLY GOVERNING THE
RULE'S APPLICATION TO THE FACTS HERE WAS.  I THINK IT FAIR TO CONCLUDE
THAT IN LIGHT OF THESE EARLIER DECISIONS, AND THE PRINCIPLE SET FORTH
IN BACIGALUPO V. FLEMING, 199 VA. 827, 835, 102 S.E.2D 321, 326 (1958),
/12/  THE PETITIONERS HERE MIGHT HAVE JUSTIFIABLY THOUGHT THAT REVIEW
IN THE SUPREME COURT OF APPEALS WOULD NOT BE BARRED BY THE RULE,
NOTWITHSTANDING SNEAD V. COMMONWEALTH, 200 VA. 850, 108 S.E.2D 399
(1959), THE ONE CASE CITED BELOW BY THE VIRGINIA COURT, RELIED ON HERE
BY RESPONDENT AND YET SOMEHOW IGNORED BY THE MAJORITY.  /13/  BECAUSE
"(NOVELTY IN PROCEDURAL REQUIREMENTS CANNOT BE PERMITTED TO THWART
REVIEW IN THIS COURT APPLIED FOR BY THOSE WHO, IN JUSTIFIED RELIANCE
UPON PRIOR DECISIONS, SEEK VINDICATION IN STATE COURTS OF THEIR FEDERAL
. . . RIGHTS," NAACP V. ALABAMA, 357 U.S.,AT 457-458, I CONCLUDE THAT
THE DECISION BELOW DOES NOT REST ON AN ADEQUATE STATE GROUND. 

        II 

BECAUSE CONGRESS HAS NOW PROVIDED A COMPREHENSIVE SCHEME FOR DEALING
WITH THE KINDS OF DISCRIMINATION FOUND IN THIS CASE, I THINK IT VERY
UNWISE AS A MATTER OF POLICY FOR THE COURT TO USE SEC. 1982 AS A BROAD
DELEGATION OF POWER TO DEVELOP A COMMON LAW OF FORBIDDEN RACIAL
DISCRIMINATIONS.  A COMPARISON OF 42 U.S.C. 1982 WITH THE NEW FAIR
HOUSING LAW, AND CONSIDERATION OF THE COURT'S TASK IN APPLYING EACH,
DEMONSTRATE TO ME THE NEED FOR RESTRAINT, AND THE APPROPRIATENESS OF
DISMISSING THE WRIT IN THIS CASE, NOW GROUNDED SOLELY ON AN ALLEGED
VIOLATION OF SEC. 1982.     PETITIONERS HERE COMPLAIN OF DISCRIMINATION
IN THE PROVISION OF RECREATION FACILITIES ANCILLARY TO A RENTED HOUSE
FOUND IN ONE OF THE FOUR SUBDIVISIONS SERVED BY LITTLE HUNTING PARK. 
ON THE ONE HAND, THE FAIR HOUSING LAW HAS A PROVISION THAT EXPLICITLY
MAKES IT UNLAWFUL TO "DISCRIMINATE AGAINST ANY PERSON IN THE TERMS,
CONDITIONS, OR PRIVILEGES OF . . . RENTAL (OF HOUSING), OR IN THE
PROVISIONS OF SERVICES OF FACILITIES IN CONNECTION THEREWITH, BECAUSE
OF RACE, (OR) COLOR . . . ."  42 U.S.C. 3604(B) (1964 ED., SUPP. IV). 
(EMPHASIS ADDED.)  IN CONTRAST, AS THE MAJORITY IN JONES NOTED, SEC.
1982 "DOES NOT DEAL SPECIFICALLY WITH DISCRIMINATION IN THE PROVISION
OF SERVICES OR FACILITIES IN CONNECTION WITH THE SALE OR RENTAL OF A
DWELLING," 392 U.S.,AT 413. 

BY ATTEMPTING TO DEAL WITH THE PROBLEM OF DISCRIMINATION IN THE
PROVISION OF RECREATIONAL FACILITIES UNDER SEC. 1982, THE COURT IS
FORCED, IN THE CONTEXT OF A VERY VAGUE STATUTE, TO DECIDE WHAT
TRANSACTIONS INVOLVE "PROPERTY" FOR PURPOSES OF SEC. 1982.  THE
MAJORITY STATES THAT "(II IS NOT MATERIAL WHETHER THE MEMBERSHIP SHARE
(IN LITTLE HUNTING PARK) BE CONSIDERED REALTY OR PERSONAL PROPERTY, AS
SEC. 1982 COVERS BOTH."  BUT EXAMINATION OF THE OPINION WILL SHOW THAT
THE MAJORITY HAS FAILED TO EXPLAIN WHY THE MEMBERSHIP SHARE IS EITHER
REAL OR PERSONAL PROPERTY FOR PURPOSES OF SEC. 1982.  THE MAJORITY'S
COMPLETE FAILURE TO ARTICULATE ANY STANDARDS FOR DECIDING WHAT IS
PROPERTY WITHIN THE MEANING OF SEC. 1982 IS A FAIR INDICATION OF THE
GREAT DIFFICULTIES COURTS WILL INEVITABLY CONFRONT IF SEC. 1982 IS SUED
TO REMEDY RACIAL DISCRIMINATION IN HOUSING.  AND LURKING IN THE
BACKGROUND ARE GRAVE CONSTITUTIONAL ISSUES SHOULD SEC. 1982 BE EXTENDED
TOO FAR INTO SOME TYPES OF PRIVATE DISCRIMINATION.  /14/ 

NOT ONLY DOES SEC. 1982 FAIL TO PROVIDE STANDARDS AS TO THE TYPES OF
TRANSACTIONS IN WHICH DISCRIMINATION IS UNLAWFUL, BUT IT ALSO CONTAINS
NO PROVISIONS FOR ENFORCEMENT, EITHER PUBLIC OR PRIVATE.  TO GIVE ITS
CONSTRUCTION OF THE STATUTE EFFECT, THE COURT HAS HAD TO IMPLY REMEDIES
THAT CONGRESS HAS NOT EXPLICITLY PROVIDED-- INJUNCTIVE RELIEF IN JONES,
AND NOW A RIGHT TO DAMAGES HERE.  SEE PART III, INFRA. 

THESE REMEDIES ARE EXPRESSLY PROVIDED FOR IN THE FAIR HOUSING LAW,
WHICH, WITH ITS VARIETY OF TECHNIQUES FOR ENFORCING ITS PROHIBITION OF
HOUSING DISCRIMINATION, AGAIN STANDS IN SHARP CONTRAST WITH SEC. 1982. 
FIRST, AN INJURED PARTY CAN COMPLAIN TO THE SECRETARY OF HOUSING AND
URBAN DEVELOPMENT WHO IS EMPOWERED TO INVESTIGATE COMPLAINTS, AND USE
"INFORMAL METHODS OF CONFERENCE, CONCILIATION, AND PERSUASION" TO
SECURE COMPLIANCE WITH THE LAW.  /15/  SHOULD THE SECRETARY'S EFFORTS
PROVE UNAVAILING, THE COMPLAINANT CAN GO TO COURT.  /16/  AS AN
ALTERNATIVE TO GOING FIRST TO HUD, IT APPEARS THAT A PERSON MAY GO
DIRECTLY TO COURT TO ENFORCE HIS RIGHTS UNDER THE FAIR HOUSING LAU,
/17/  WHICH EXPRESSLY PROVIDES FOR A WIDE VARIETY OF RELIEF, INCLUDING
RESTRAINING ORDERS, INJUNCTIONS, COMPENSATORY DAMAGES, AND PUNITIVE
DAMAGES UP TO $1,000.  /18/  FURTHERMORE, THE ACT ALLOWS A COURT TO
APPOINT COUNSEL AND WAIVE ALL FEES FOR INDIGENT PLAINTIFFS, AND TO
AWARD COSTS AND, IN CERTAIN CASES, COUNSEL FEES TO A SUCCESSFUL
PLAINTIFF.  /19/  IN ADDITION TO ACTIONS INITIATED BY PRIVATE PARTIES,
THE ATTORNEY GENERAL IS EMPOWERED TO BRING CIVIL ACTIONS FOR PREVENTIVE
CIVIL RELIEF, AND CRIMINAL ACTIONS TO PUNISH THOSE WHO BY FORCE OR
THREAT OF FORCE WILLFULLY INTERFERE WITH OR INTIMIDATE THOSE WHO WISH
TO EXERCISE, OR AID OTHERS IN THE EXERCISE, OF THEIR RIGHTS UNDER THE
FAIR HOUSING LAW.  /20/ 

GIVEN THIS COMPREHENSIVE, CONTEMPORARY STATUTE, THE LIMITATIONS OF
WHICH HAVE NOT YET EVEN BEEN ESTABLISHED, I BELIEVE THAT THE COURT
SHOULD NOT DECIDE THIS CASE BUT SHOULD INSTEAD DISMISS THE WRIT OF
CERTIORARI AS IMPROVIDENTLY GRANTED.  /21/  THIS COURT'S CERTIORARI
JURISDICTION SHOULD NOT BE EXERCISED SIMPLY "FOR THE BENEFIT OF THE
PARTICULAR LITIGANTS," RICE V. SIOUX CITY CEMETERY, 349 U.S. 70, 74
(1955), BUT INSTEAD FOR THE "SETTLEMENT OF (ISSUES) OF IMPORTANCE TO
THE PUBLIC AS DISTINGUISHED FROM . . . THE PARTIES," LAYNE & BOWLER
CORP. V. WESTERN WELL WORKS, INC., 261 U.S. 387, 393 (1923).  EVEN FROM
THE PERSPECTIVE OF THE PARTIES, THIS CASE HAS LOST MUCH OF ITS
PRACTICAL IMPORTANCE DUE TO THE FACT THAT DR. FREEMAN'S WORK HAS TAKEN
HIM AND HIS FAMILY AWAY FROM THE AREA SERVED BY LITTLE HUNTING PARK,
THEREBY MAKING MOOT HIS ORIGINAL CLAIM FOR INJUNCTIVE RELIEF.  /22/
BUT MORE FUNDAMENTALLY, I THINK HERE, AS I DID IN JONES, THAT THE
EXISTENCE OF THE FAIR HOUSING LAW RENDERS THE DECISION OF THIS CASE OF
LITTLE "IMPORTANCE TO THE PUBLIC."  FOR, ALTHOUGH THE 1968 ACT DOES NOT
COVER THIS PARTICULAR CASE, /23/  SHOULD A NEGRO IN THE FUTURE RENT A
HOUSE BUT BE DENIED ACCESS TO ANCILLARY RECREATIONAL FACILITIES ON
ACCOUNT OF RACE, HE COULD IN ALL LIKELIHOOD SECURE RELIEF UNDER THE
PROVISIONS OF THE FAIR HOUSING LAW.  /24/

        III 

THE UNDISCRIMINATING MANNER IN WHICH THE COURT HAS DEALT WITH THIS
CASE IS BOTH HIGHLIGHTED AND COMPOUNDED BY THE COURT'S FAILURE TO FACE,
LET ALONE RESOLVE, TWO ISSUES THAT LIE BURIED BENEATH THE SURFACE OF
ITS OPINION.  BOTH ISSUES ARE DIFFICULT ONES, AND THE FACT THAT THE
MAJORITY HAS NOT COME TO GRIPS WITH THEM SERVES TO ILLUSTRATE THE
INEVITABLE DIFFICULTIES THE COURT WILL ENCOUNTER IF IT CONTINUES TO
EMPLOY SEC. 1982 AS A MEANS FOR DEALING WITH THE MANY SUBTLE HUMAN
PROBLEMS THAT ARE BOUND TO ARISE AS THE GOAL OF ELIMINATING
DISCRIMINATORY PRACTICES IN OUR NATIONAL LIFE IS PURSUED. 

A. RELIEF FOR SULLIVAN 

BECAUSE THE MAJORITY OPINION IS HIGHLY ELLIPTICAL AS TO (1) THE
CIRCUMSTANCES SURROUNDING SULLIVAN'S EXPULSION FROM LITTLE HUNTING
PARK, (2) THE RELIEF SULLIVAN SOUGHT IN THE STATE COURT, AND (3) THE
DECISION OF THE TRIAL COURT, IT IS NECESSARY FOR ME TO BEGIN MY
ANALYSIS SIMPLY BY STATING THE FACTS OF THESE ASPECTS OF THE CASE.  A
FULL EXAMINATION OF THE RECORD REVEALS, FIRST, THE NECESSITY FOR A
REMAND ON THE MAJORITY'S OWN PREMISES.  IT ALSO MAKES APPARENT THE
MAJORITY'S FAILURE TO PROVIDE ANY GUIDANCE AS TO THE LEGAL STANDARDS
THAT SHOULD GOVERN SULLIVAN'S RIGHT TO RECOVERY ON REMAND.  AN
AWARENESS OF THE COMPLEXITY OF THE ISSUES RELEVANT TO SULLIVAN'S RIGHT
TO REDRESS SUGGESTS FURTHER, I THINK, THE APPROPRIATENESS OF A
DISCRETIONARY DENIAL OF REVIEW. 

1.  THE CIRCUMSTANCES OF SULLIVAN'S EXPULSION.  AFTER THE BOARD OF
LITTLE HUNTING PARK REFUSED TO APPROVE THE ASSIGNMENT OF A MEMBERSHIP
SHARE FROM SULLIVAN TO FREEMAN, SULLIVAN ATTEMPTED TO CONVINCE THE
BOARD TO REVERSE ITS DECISION.  TO THIS END, SULLIVAN FIRST MET WITH
MEMBERS OF THE BOARD, AND PROTESTED THEIR ACTIONS.  HE SUBSEQUENTLY
MOBILIZED A CAMPAIGN BOTH BY OTHER MEMBERS OF THE CLUB AND BY PERSONS
IN THE COMMUNITY AS A WHOLE TO FORCE THE BOARD TO RECONSIDER ITS
DECISION.  THE MEANS USED IN THIS CAMPAIGN, AS THE BRIEF FOR PETITIONER
SULLIVAN ACKNOWLEDGES, /25/  INCLUDED PHONE CALLS TO MEMBERS OF THE
BOARD, LETTERS TO LOCAL CLERGY, AND THE CIRCULATION AMONG THE MEMBERS
OF LITTLE HUNTING PARK OF A PETITION THAT CALLED FOR A MEETING OF THE
FULL MEMBERSHIP TO CONSIDER DR. FREEMAN'S CASE. 

ON JULY 8 SULLIVAN RECEIVED A LETTER FROM THE BOARD WHICH STATED
THAT IT HAD DETERMINED THAT THERE WAS "DUE CAUSE" TO WARRANT A HEARING
IN ORDER TO DETERMINE WHETHER SULLIVAN SHOULD BE EXPELLED FROM LITTLE
HUNTING PARK, PURSUANT TO ITS BYLAWS, FOR "CONDUCT INIMICABLE TO THE
CORPORATION MEMBERS."  THIS LETTER REFERRED TO SULLIVAN'S "NON
ACCEPTANCE OF THE BOARD'S DECISION ON THE ASSIGNMENT OF YOUR MEMBERSHIP
TO YOUR TENANT . . . ALONG WITH THE CONTINUED HARASSMENT OF THE BOARD
MEMBERS" AS THE BASIS FOR THE BOARD'S "DUE CAUSE"  DETERMINATION. 

THE BOARD SUBSEQUENTLY PROVIDED A DETAILED SPECIFICATION OF ITS
CHARGES AGAINST SULLIVAN, /26/  AND THESE INCLUDED, INTER ALIA,
ALLEGATIONS THAT SULLIVAN HAD (A) INSTIGATED A CAMPAIGN BY WHICH BOARD
MEMBERS WERE HARRASSED BY "UNFRIENDLY PHONE CALLS" ACCUSING THEM OF
BIGOTRY; (B) USED "ABUSIVE" LANGUAGE IN A PHONE CALL TO THE PRESIDENT
OF THE BOARD; (C) WRITTEN LETTERS TO LOCAL CLERGY, INCLUDING THE
MINISTER OF THE CHURCH WHICH EMPLOYED THE PRESIDENT OF LITTLE HUNTING
PARK, ACCUSING BOARD MEMBERS OF PARTICIPATION IN "REAL MORAL EVIL"; AND
(D) USED "VIOLENT AND ABUSIVE LANGUAGE" TO MEMBERS OF LITTLE HUNTING
PARK WHO HAD REFUSED TO SIGN HIS PETITION.  AFTER THE HEARING ON THESE
CHARGES, THE BOARD EXPELLED SULLIVAN AND TENDERED TO HIM THE CURRENT
MARKET VALUE OF THE TWO MEMBERSHIP SHARES THAT HE HELD. 

IN RESPONSE TO THESE ACTIONS, SULLIVAN BROUGHT THIS SUIT IN THE
CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA, AGAINST LITTLE HUNTING PARK
AND ITS BOARD SEEKING AS RELIEF (1) AN ORDER COMPELLING LITTLE HUNTING
PARK TO REINSTATE HIS MEMBERSHIP; (2) MONETARY DAMAGES IN THE AMOUNT OF
$15,000; AND (3) AN INJUNCTION REQUIRING THE BOARD TO APPROVE THE
ASSIGNMENT TO FREEMAN AND FORBIDDING THE BOARD TO USE RACE AS A FACTOR
IN CONSIDERING MEMBERSHIP.  THE TRIAL COURT, AFTER HEARING DISPUTED
EVIDENCE AS TO THE REASONS FOR SULLIVAN'S EXPULSION, FOUND FOR THE
DEFENDANTS.  IT STATED THAT THE SCOPE OF ITS REVIEW OF THE BOARD'S
ACTIONS WAS "LIMITED BECAUSE LITTLE HUNTING PARK WAS A "PRIVATE AND
SOCIAL" CLUB, AND THEN WENT ON TO FIND THAT THE BOARD HAD ACTED WITHIN
"THE POWERS CONFERRED ON IT BY THE BY-LAWS" IN EXPELLING SULLIVAN, AND
THAT "THERE WAS AMPLE EVIDENCE TO JUSTIFY (THE BOARD'S) CONCLUSION THAT
THE COMPLAINANT'S ACTS WERE INIMICABLE TO THE CORPORATION'S MEMBERS AND
TO THE CORPORATION." 

2.  WITH THIS STATEMENT OF THE RECORD IN MIND, SEVERAL OBSERVATIONS
MUST BE MADE ABOUT THE MAJORITY'S TREATMENT OF SULLIVAN'S RIGHTS. 
FIRST, IN STATING THAT "SULLIVAN'S EXPULSION (WAS) FOR THE ADVOCACY OF
FREEMAN'S CAUSE," THE MAJORITY SURELY CANNOT BE TAKEN TO HAVE RESOLVED
DISPUTED TESTIMONY, AND DECIDED THE FACTS UNDERLYING SULLIVAN'S
EXPULSION.  IF THESE FACTS ARE RELEVANT TO SULLIVAN'S REMEDIAL RIGHTS,
AS SURELY THEY MUST BE, THEN A REMAND FOR DETAILED FINDINGS SEEMS
UNAVOIDABLE UNDER THE MAJORITY'S OWN PREMISES. 

SECOND, THE MAJORITY HAS NOT EXPLAINED WHAT LEGAL STANDARD SHOULD
DETERMINE SULLIVAN'S RIGHTS UNDER SEC. 1982.  THE MAJORITY SIMPLY
STATES THAT "SULLIVAN HAS STANDING TO MAINTAIN THIS ACTION" UNDER SEC.
1982, WITHOUT EVEN ACKNOWLEDGING THAT SOME STANDARD IS ESSENTIAL FOR
THIS CASE TO BE ULTIMATELY DECIDED. 

ON CAN IMAGINE A VARIETY OF STANDARDS, EACH BASED ON DIFFERENT LEGAL
CONCLUSIONS AS TO THE "RIGHTS" AND "DUTIES" CREATED BY SEC. 1982, AND
EACH HAVING VERY DIFFERENT REMEDIAL CONSEQUENCES.  FOR EXAMPLE, DOES
SEC. 1982 GIVE SULLIVAN A RIGHT TO RELIEF ONLY FOR INJURIES RESULTING
FROM LITTLE HUNTING PARK'S INTERFERENCE WITH HIS STATUTORY DUTY TO
FREEMAN UNDER SEC. 1982?  IF SO, WHAT IS SULLIVAN'S DUTY TO FREEMAN
UNDER SEC. 1982?  UNLESS SEC. 1982 IS READ TO IMPOSE A DUTY ON SULLIVAN
TO PROTEST FREEMAN'S EXCLUSION, HE WOULD BE ENTITLED TO REINSTATEMENT
UNDER THIS STANDARD ONLY IF THE BOARD HAD EXPELLED HIM FOR THE SIMPLE
ACT OF ASSIGNING HIS SHARE TO FREEMAN. 

AS AN ALTERNATIVE, SULLIVAN MIGHT BE THOUGHT TO BE ENTITLED TO
RELIEF FROM THOSE INJURIES THAT FLOWED FROM THE BOARD'S VIOLATION OF
ITS "DUTY" TO FREEMAN UNDER SEC. 1982.  SUCH A STANDARD MIGHT SUGGEST
THAT SULLIVAN IS ENTITLED TO DAMAGES THAT RESULTED FROM LITTLE HUNTING
PARK'S INITIAL REFUSAL TO ACCEPT THE ASSIGNMENT TO FREEMAN BUT AGAIN
NOT TO REINSTATEMENT.  OR DOES THE COURT THINK THAT SEC. 1982 GIVES
SULLIVAN A RIGHT TO RELIEF FROM INJURIES THAT RESULT FROM HIS
"LEGITIMATE" PROTEST AIMED AT CONVINCING THE BOARD TO ACCEPT FREEMAN? 
IF SO, WHAT PROTEST ACTIVITIES WERE LEGITIMATE HERE?  MOST EXTREME
WOULD BE A STANDARD THAT WOULD GIVE SULLIVAN RELIEF FROM INJURIES THAT
WERE THE RESULT OF ANY ACTIONS HE TOOK TO PROTEST THE BOARD'S INITIAL
REFUSAL, IRRESPECTIVE OF SULLIVAN'S MEANS OF PROTEST.  ONLY THIS
STANDARD WOULD REQUIRE REINSTATEMENT, IRRESPECTIVE OF THE DISPUTED
FACTS HERE.  BUT THIS STANDARD WOULD MEAN THAT SEC. 1982 GAVE SULLIVAN
A RIGHT TO REGAIN HIS MEMBERSHIP EVEN IF THE BOARD HAS EXPELLED HIM FOR
USING INTEMPERATE AND ABUSIVE THREATS AS A MEANS OF PROTESTING
FREEMAN'S EXCLUSION.  /27/ 

B. STATE COURT REMEDIES FOR FEDERAL RIGHTS 

BECAUSE THIS CASE ARISES FROM A STATE COURT, IT PRESENTS SPECIAL
PROBLEMS WHICH THE MAJORITY OVERLOOKS, AND WHICH SUGGESTS AGAIN THE
UNDESIRABILITY OF DECIDING THIS CASE IN THE CONTEXT OF THIS ANCIENT
STATUTE.  IN DECIDING THAT THERE IS A RIGHT TO RECOVER DAMAGES IN THIS
CASE, THE MAJORITY OVERLOOKS THE COMPLICATIONS INVOLVED BY DINT OF THE
FACT THAT A STATE COURT IS BEING ASKED TO PROVIDE A REMEDY FOR A
FEDERAL RIGHT BOTTOMED ON A FEDERAL STATUTE THAT ITSELF HAS NO REMEDIAL
PROVISIONS. 

IMPLIED REMEDIES FOR FEDERAL RIGHTS ARE SOMETIMES SOLELY A MATTER OF
FEDERAL LAW /28/  AND OTHER TIMES DEPENDENT, EITHER WHOLLY OR
PARTIALLY, UPON STATE LAW.  /29/  DIFFICULT AND COMPLEX QUESTIONS ARE
INVOLVED IN DETERMINING WHAT REMEDIES A STATE COURT MUST /30/  OR MUST
NOT /31/  PROVIDE IN CASES INVOLVING FEDERAL RIGHTS.  /32/ 

IT SHOULD BE NOTED THAT THE MAJORITY'S OPINION, THOUGH PERHAPS
DECIDING VERY LITTLE /33/  ONLY ADDS TO THE CONFUSION ALREADY EXISTING
IN THIS AREA.  SECTION 1988 OF TITLE 42, WHICH THE MAJORITY APPARENTLY
THINKS DECIDES THIS CASE, IS CONCERNED WITH THE REMDIAL POWERS OF
FEDERAL DISTRICT COURTS AND IT PROVIDES THAT THE FEDERAL COURTS SHALL
LOOK TO STATE LAW TO FIND APPROPRIATE REMEDIES WHEN THE APPLICABLE
FEDERAL CIVIL RIGHTS LAW IS "DEFICIENT IN THE PROVISIONS NECESSARY TO
FURNISH SUITABLE REMEDIES . . . ."  BUT THE MAJORITY TURNS THIS
PROVISION ON ITS HEAD BY SUGGESTING (1) THAT SEC. 1988 CREATES A
FEDERAL REMEDY, APART FROM STATE LAW, WHEN THE REMEDIAL PROVISIONS OF A
CIVIL RIGHTS STATUTE, LIKE SEC. 1982, ARE "DEFICIENT"; AND (2) THAT
SEC. 1988 ITSELF SOMEHOW IMPOSES THIS FEDERAL REMEDY ON THE STATES.  IF
SEC. 1988 SAYS ANYTHING AT ALL RELEVANT FOR THIS CASE, IT SUGGESTS THAT
IN THOSE CASES WHERE IT IS APPROPRIATE TO CURE REMEDIAL DEFICIENCIES OF
A FEDERAL CIVIL RIGHTS STATUTE BY IMPLICATION, THIS IS TO BE DONE BY
LOOKING TO STATE LAW TO SEE WHAT REMEDIES, CONSISTENT WITH FEDERAL
POLICIES, WOULD BE AVAILABLE THERE.     BY REASON OF THESE
CONSIDERATIONS, MANY OF WHICH COULD HARDLY HAVE BEEN FORESEEN AT THE
TIME CERTIORARI WAS GRANTED, I WOULD DISMISS THE WRIT IN THIS CASE AS
IMPROVIDENTLY GRANTED. 

/1/  392 U.S.,AT 452-454 (DISSENTING OPINION). 

/2/  392 U.S.,AT 454-473 (DISSENTING OPINION).  SEE CASPER, JONES V.
MAYER:  CLIO, BEMUSED AND CONFUSED MUSE, 1968 SUP.CT.REV.  89, 99-122;
THE SUPREME COURT, 1967 TERM, 82 HARV.L.REV.  63, 93-103 (1968). 

/3/  CIVIL RIGHTS ACT OF 1968, TIT. VIII, 42 U.S.C. 3601 ET SEQ.
(1964 ED., SUPP. IV). 

/4/  THE THIRD AND FINAL STAGE IN THE EXPANSION OF THE COVERAGE OF
THE FAIR HOUSING LAW TAKES EFFECT AFTER DECEMBER 31, 1969.  SEE 42
U.S.C. 3603(B) (1964 ED., SUPP. IV). 

/5/  SEE N. 1 OF THE MAJORITY OPINION, ANTE, AT 231, FOR THE TEXT OF
THE RULE. 

/6/  SEE, E.G., MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, 347
U.S. 157, 159-160 (1954). 

/7/  IT APPEARS THAT PLENARY REVIEW BY THE VIRGINIA SUPREME COURT OF
APPEALS IS NOT A MATTER OF RIGHT FOR MANY KINDS OF CASES.  SEE VA. CODE
ANN. SEC. 8-462 (1957 REPL.  VOL.); VA. CONST. SECS. 87, 88. 

/8/  SEE HAMMERSTEIN V. SUPERIOR COURT, 341 U.S. 491, 492 (1951);
CHESAPEAKE & OHIO R. CO. V. MCDONALD, 214 U.S. 191 (1909); NEWMAN V.
GATES, 204 U.S. 89 (1907). 

/9/  SANDALOW, HENRY V. MISSISSIPPI AND THE ADEQUATE STATE GROUND:
PROPOSALS FOR A REVISED DOCTRINE, 1965 SUP.CT.REV.  187, 226.  SEE ID.,
AT 225-226 FOR A DISCUSSION OF MR. JUSTICE BLACK'S DISSENT IN HENRY V.
MISSISSIPPI, 379 U.S. 443, 455-457 (1965), WHICH IS CITED BY THE
MAJORITY, DOES NOT IN MY VIEW SUPPORT THE REASONING OF THE MAJORITY. 
WILLIAMS V. GEORGIA, 349 U.S. 375 (1955), WHICH IS NOT CITED BY THE
MAJORITY, DOES NOT IN MY VIEW SUPPORT THE REASONING OF THE MAJORITY.  I
THINK THE RESULT IN WILLIAMS RESTS UPON A DETERMINATION OF
INCONSISTENCY IN THE APPLICATION OF THE STATE'S PROCEDURAL REQUIREMENTS
FOR A NEW TRIAL.  SEE 349 U.S.,AT 383. 

/10/  BOLIN V. LADERBERG, 207 VA. 795, 153 S.E.2D 251 (1967); COOK
V. VIRGINIA HOLSUM BAKERIES, 207 VA. 815, 153 S.E.2D 209 (1967); TAYLOR
V. WOOD, 201 VA. 615, 112 S.E.2D 907 (1960); BACIGALUPO V. FLEMING, 199
VA. 827, 102 S.E.2D 321 (1958). 

/11/  STOKELY V. OWENS, 189 VA. 248, 52 S.E.2D 164 (1949); GRIMES V.
CROUCH, 175 VA. 126, 7 S.E.2D 115 (1940). 

/12/  IT CAN BE SEEN FROM THE PASSAGE QUOTED BY THE MAJORITY, SEE
ANTE, AT 232-233, THAT BACIGALUPO INTERPRETED THE RULE AS REQUIRING
THAT (1) OPPOSING COUNSEL MUST HAVE A REASONABLE OPPORTUNITY TO EXAMINE
THE TRANSCRIPT AFTER HE RECEIVES NOTICE; AND (2) BASED ON THIS
EXAMINATION, OPPOSING COUNSEL MUST HAVE A REASONABLE OPPORTUNITY TO
MAKE ANY OBJECTIONS HE HAS TO THE ACCURACY OF THE TRANSCRIPT BEFORE THE
TRANSCRIPT IS SIGNED BY THE TRIAL JUDGE.  IN THIS CASE, OPPOSING
COUNSEL RECEIVED NOTICE BY TELEPHONE ON FRIDAY, JUNE 9, AND BY LETTER
THE FOLLOWING MONDAY.  HIS OPPORTUNITY TO EXAMINE THE TRANSCRIPT WAS
AVAILABLE TO HIM IN THE JUDGE'S CHAMBERS; AND THE TIME BETWEEN FRIDAY,
JUNE 16, AND MONDAY, THE 19TH, WHEN HE ACTUALLY HAD IN HIS POSSESSION A
COPY OF THE TRANSCRIPT.  ANY ARGUMENT THAT THIS LENGTH OF TIME, PER SE,
BAKERIES, SUPRA, WHERE OPPOSING COUNSEL RECEIVED A COPY OF A NARRATIVE
ONLY TWO DAYS BEFORE THE TRIAL JUDGE SIGNED IT, AND THE VIRGINIA
SUPREME COURT OF APPEALS FOUND NO VIOLATION OF THE RULE. 

/13/  IN SNEAD, THE VIRGINIA SUPREME COURT OF APPEALS SAID: 

"IT IS IMPORTANT THAT TIME BE GIVEN OPPOSING COUNSEL FOR A
REASONABLE OPPORTUNITY TO ANALYZE SUCH STATEMENTS CHARACTERIZED BY
DEFENDANT'S COUNSEL AS BEING CONFUSING.  THE ENTIRE TESTIMONY OF A VERY
MATERIAL WITNESS WAS LEFT OUT OF THE NARRATIVE STATEMENT WHEN IT WAS
PRESENTED TO THE TRIAL JUDGE AND IT WAS NECESSARY FOR HIM TO INSERT IT.
WE ARE OF THE OPINION THAT THE NOTICE DELIVERED TO THE COMMONWEALTH'S
ATTORNEY AT HIS RESIDENCE, AFTER OFFICE HOURS, THIRTY MINUTES BEFORE
TENDERING A NARRATIVE STATEMENT OF THE EVIDENCE TO THE TRIAL JUDGE FOR
HIS SIGNATURE, DOES NOT CONSTITUTE REASONABLE NOTICE WITHIN THE PLAIN
MEANING OF RULE 5:1, SEC. 3(F) AND THAT THE TERMS OF THE RULE ARE
MANDATORY AND JURISDICTIONAL."  200 VA.,AT 854, 108 S.E.2D, AT 402. 

THIS CASE IS FAR DIFFERENT FROM SNEAD IN SIGNIFICANT RESPECTS. 
FIRST, IN SNEAD THE COURT WAS NOT CONFRONTED WITH A TRANSCRIPT BUT
INSTEAD WITH A NARRATIVE; AND THIS NARRATIVE WAS, BY THE ADMISSION OF
APPELLANT'S OWN COUNSEL, "OF A CONFUSING NATURE AND CHARACTER."  IN
THIS CASE, ON THE OTHER HAND, THE RECORD FAILS TO SHOW THAT COUNSEL FOR
RESPONDENT MADE ANY OBJECTION TO THE TRIAL JUDGE AS TO THE ADEQUACY OF
THE NOTICE, OR TO THE ACCURACY OF THE TRANSCRIPT, SEE TAYLOR V. WOOD,
SUPRA; STOKELY V. OWENS, SUPRA.  FURTHERMORE, AT ORAL ARGUMENT BEFORE
THIS COURT, COUNSEL FOR RESPONDENT COULD NOT POINT TO A SINGLE
INACCURACY IN THE TRANSCRIPT AS SIGNED BY THE TRIAL JUDGE.  TR. OF ORAL
ARG. 20.  SECOND, IN SNEAD OPPOSING COUNSEL WAS ONLY GIVEN ON-HALF
HOUR'S NOTICE OF A PROPOSED TENDER TO THE JUDGE FOR SIGNATURE THAT
NIGHT.  IN THIS CASE, ALTHOUGH THE TRANSCRIPT WAS SENT TO THE JUDGE AT
ABOUT THE SAME TIME AS OPPOSING COUNSEL RECEIVED NOTICE, THAT NOTICE
STATED THAT THE JUDGE WOULD NOT BE ASKED TO SIGN THE TRANSCRIPT FOR A
WEEK, SO COUNSEL COULD FIRST HAVE AN OPPORTUNITY TO EXAMINE IT. 

RESPONDENT SUGGESTS THAT THE RULE REQUIRES THAT OPPOSING COUNSEL
HAVE NOTICE AND AN OPPORTUNITY TO EXAMINE THE TRANSCRIPT BEFORE THE
TRANSCRIPT IS GIVEN TO THE JUDGE RATHER THAN SIMPLY BEFORE THE JUDGE
SIGNS IT.  NO PRIOR VIRGINIA CASE OF WHICH WE HAVE BEEN MADE AWARE HAS
SO STATED, HOWEVER, AND THE PRINCIPLE OF BACIGALUPO QUOTED BY THE
MAJORITY SUGGESTS THAT THE KEY IS THAT THERE BE AN OPPORTUNITY TO
INSPECT AND TO MAKE OBJECTIONS BEFORE THE JUDGE SIGNS THE TRANSCRIPT. 

/14/  SEE CIVIL RIGHTS CASES, 109 U.S. 3 (1883). 

/15/  42 U.S.C. 3610(A) (1964 ED., SUPP. IV). 

/16/  ID., SEC. 3610(D). 

/17/  ID., SEC. 3612.  SEE FAIR HOUSING LAW AND OTHER FEDERAL CIVIL
RIGHTS LAWS AND EXECUTIVE ORDERS RELATING TO THE PROGRAMS OF THE U.S.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEPT. OF HOUSING AND URBAN
DEVELOPMENT, OFFICE OF EQUAL OPPORTUNITY; NOTE, DISCRIMINATION IN
EMPLOYMENT AND IN HOUSING:  PRIVATE ENFORCEMENT PROVISIONS OF THE CIVIL
RIGHTS ACTS OF 1964 AND 1968, 82 HARV.L.REV.  834, 839, 855-859, 862
863 (1969). 

/18/  42 U.S.C. 3612(C) (1964 ED., SUPP. IV). 

/19/  ID., SECS. 3612(B), 3612(C). 

/20/  ID., SECS. 3613, 3631.  SEE ID., SEC. 3617. 

/21/  CF. BICKEL, FOREWORD:  THE PASSIVE VIRTUES, THE SUPREME COURT,
1960 TERM, 75 HARV.L.REV.  40 (1961). 

/22/  GIVEN THAT THE MARKET PRICE OF A MEMBERSHIP SHARE IN LITTLE
HUNTING PARK APPARENTLY RANGED FROM $150 TO $230 DURING THE TIME IN
QUESTION, SEE GOVERNMENT'S AMICUS BRIEF 5, FREEMAN'S COMPENSATORY
DAMAGES WILL NOT, IN ALL PROBABILITY, BE SUBSTANTIAL.  AND, AS I POINT
OUT IN THE NEXT SECTION, UNRESOLVED FACTUAL ISSUES MAY BAR ANY RELIEF
AT ALL FOR SULLIVAN. 

/23/  THE RELEVANT EVENTS IN THIS CASE ALL TOOK PLACE IN 1965, LONG
BEFORE THE FAIR HOUSING LAW FIRST WENT INTO EFFECT ON APRIL 11, 1968. 
WHETHER THE FAIR HOUSING LAW WOULD PROTECT DR. FREEMAN WERE LIKE EVENTS
TO TAKE PLACE AGAIN AFTER DECEMBER 31, 1969, IN PART WOULD DEPEND UPON
WHETHER THE TRANSACTION BETWEEN SULLIVAN AND FREEMAN WOULD FALL WITHIN
ANY OF THE CATEGORIES DESCRIBED IN N. 24, INFRA.  ON THE FACTS AS THEY
APPEAR IN THIS RECORD, THE EXEMPTION FOUND IN 42 U.S.C. 3607 (1964 ED.,
SUPP. IV) WOULD NOT APPEAR TO BAR RECOVERY. 

/24/  IN ADDITION TO COVERING ALL SINGLE-FAMILY HOUSES NOT OWNED BY
PRIVATE INDIVIDUALS, AND SINGLE-FAMILY HOUSES OWNED BY A PRIVATE
INDIVIDUAL WHO OWNS MORE THAN THREE HOUSES, THE FAIR HOUSING LAW, AFTER
DECEMBER 31, 1969, COVERS THE RENTAL OF ALL SINGLE-FAMILY HOMES (A)
RENTED WITH THE HELP ESTATE BROKER; OR (B) OFFERED FOR RENTAL THROUGH A
WRITTEN NOTICE OR ADVERTISEMENT WHICH IS DISCRIMINATORY.  SEE 42 U.S.C.
3603(B) (1964 ED., SUPP. IV). 

/25/  SEE PETITIONERS' BRIEF 9-11, 39-50. 

/26/  SEE APPENDIX 181-182, 185-186.  THE DETAILED SPECIFICATION OF
CHARGES AGAINST SULLIVAN WAS GIVEN BY LITTLE HUNTING PARK AS PART OF A
SETTLEMENT OF A SUIT BROUGHT BY SULLIVAN TO ENJOIN THE HEARING ON HIS
EXPULSION.  THIS EARLIER SUIT, WHICH WAS DISMISSED BY AGREEMENT BETWEEN
THE PARTIES, WAS BROUGHT BY SULLIVAN BECAUSE OF THE VAGUENESS OF THE
JULY 8 LETTER AS TO THE CONDUCT UPON WHICH THE DUE-CAUSE HEARING WAS TO
BE HELD.  THE SETTLEMENT OF THIS EARLIER SUIT ALSO INCLUDED A
STIPULATION BETWEEN SULLIVAN AND LITTLE HUNTING PARK AS TO FUTURE
LAWSUITS, WHICH RESPONDENTS CLAIMED BELOW BARRED SULLIVAN'S SUIT BEFORE
US NOW.  THIS ASPECT OF THE STIPULATION WAS NOTED, BUT NOT PASSED ON,
BY THE TRIAL JUDGE BELOW. 

/27/  BARROWS V. JACKSON, 346 U.S. 249 (1953), UPON WHICH THE
MAJORITY APPEARS TO PLACE HEAVY RELIANCE, GIVES NO GUIDANCE AS TO THE
EXTENT A STATE COURT IS OBLIGED TO ALLOW A WHITE PERSON TO RECOVER
AFFIRMATIVELY EITHER DAMAGES OR OTHER RELIEF AFTER HE HAS TRANSFERRED A
REAL ESTATE INTEREST TO A NEGRO.  IN BARROWS THE COURT HELD THAT
DAMAGES COULD NOT BE AWARDED AGAINST A WHITE DEFENDANT SUED FOR BREACH
OF A RACIALLY RESTRICTIVE COVENANT. 

/28/  SEE J. I. CASE CO. V. BORAK, 377 U.S. 426 (1964). 

/29/  SEE WARD V. LOVE COUNTY, 253 U.S. 17 (1920); THE TUNGUS V.
SKOVGAARD, 358 U.S. 588 (1959). 

/30/  TESTA V. KATT, 330 U.S. 386 (1947) (STATE COURT OBLIGATED TO
GIVE TREBLE DAMAGES, REQUIRED BY FEDERAL STATUTE, FOR VIOLATION OF
EMERGENCY PRICE CONTROL ACT). 

/31/  SEE AVCO CORP. V. AERO LODGE NO. 735, 390 U.S. 557, 560 N. 2
(1968) (COURT DID NOT DECIDE WHETHER THE REMEDIES AVAILABLE IN A STATE
COURT IN A SUITO ENJOIN A STRIKE ARE LIMITED TO THE REMEDIES AVAILABLE
UNDER FEDERAL LAW). 

/32/  SEE H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 474-477 (1953); GREENE, HYBRID STATE LAW IN THE FEDERAL COURTS,
83 HARV.L.REV.  289, 315-319 (1969). 

/33/  THE MAJORITY, IN ITS PENULTIMATE PARAGRAPH, APPEARS NOT TO
DECIDE WHETHER THE "RULE OF DAMAGES" IS "DRAWN FROM FEDERAL OR STATE
SOURCES." 

ALLISON W. BROWN, JR., ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEFS WERE PETER AMES EVELETH, ROBERT M. ALEXANDER, JACK
GREENBERG, AND JAMES M. NABRIT III. 

JOHN CHARLES HARRIS ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL LEONARD, LOUIS F.
CLAIBORNE, PETER L. STRAUSS, AND JOSEPH J. CONNOLLY FOR THE UNITED
STATES, AND BY ARNOLD FORSTER, SOL RABKIN, MELVIN L. WULF, EDWIN J.
LUKAS, SAMUEL RABINOVE, AND PAUL HARTMAN FOR THE ANTI-DEFAMATION LEAGUE
OF B'NAI B'RITH ET AL.
..END :


















NLRB V. RUTTER-REX MFG. CO., 396 U.S. 258 


       NATIONAL LABOR RELATIONS BOARD V. J. H. RUTTER-REX

           MANUFACTURING CO., INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

     FIFTH CIRCUIT

        NO. 32.  ARGUED OCTOBER 22, 1969-- DECIDED DECEMBER 15,

           1969 


RESPONDENT COMPANY'S EMPLOYEES WENT ON STRIKE IN APRIL 1954.  THE
UNION FILED CHARGES AGAINST THE COMPANY, INCLUDING A CHARGE FOR REFUSAL
TO BARGAIN, AND WHILE THESE CHARGES WERE PENDING, TERMINATED THE STRIKE
IN APRIL 1955, AND APPLIED FOR REINSTATEMENT OF MANY OF THE STRIKERS. 
NOT ALL THESE EMPLOYEES WERE REINSTATED.  IN FEBRUARY 1956 THE NATIONAL
LABOR RELATIONS BOARD (NLRB) FOUND THAT THE COMPANY HAD BEEN GUILTY OF
AN UNLAWFUL REFUSAL TO BARGAIN AND ORDERED IT TO OFFER REINSTATEMENT TO
ALL STRIKERS WHO APPLIED AND TO "MAKE SUCH APPLICANTS WHOLE FOR ANY
LOSS OF PAY BY REASON OF THE . . . REFUSAL, IF ANY, TO REINSTATE
THEM."  THE COURT OF APPEALS ENTERED A DECREE IN AUGUST 1957 ENFORCING
THE ORDER.  THE NLRB REGIONAL OFFICE THEN NOTIFIED THE COMPANY THAT THE
CASE WOULD REMAIN OPEN UNTIL THE COMPANY HAD FULLY COMPLIED WITH THE
DECREE.  IN NOVEMBER 1957 THE COMPANY WROTE THE REGIONAL OFFICE THAT IT
HAD COMPLIED WITH "SOME OF THE PROVISIONS OF THE DECREE" AND REQUESTED
THAT "ANY INSTANCE OF A FAILURE TO COMPLY" BE BROUGHT TO ITS
ATTENTION.  IN MARCH 1960 AN NLRB COMPLIANCE OFFICER REQUESTED PAYROLL
AND OTHER RECORDS TO DETERMINE THE EMPLOYMENT AND BACK-PAY RIGHTS OF
EMPLOYEES.  IN NOVEMBER 1961 A BACK-PAY SPECIFICATION WAS FILED AND THE
COMPANY APPLIED TO THE COURT OF APPEALS FOR A PERMANENT STAY, ALLEGING
THAT THE NLRB HAD DELAYED IMPROPERLY IN ISSUING THE SPECIFICATION.  THE
COURT OF APPEALS DENIED THE STAY, ALTHOUGH NOTING THAT THE DELAY WAS
REGRETTABLE.  AFTER A LENGTHY HEARING, THE NLRB, IN JUNE 1966, ORDERED
BACK PAY, WHICH, FOR CASES WHERE NO COMPANY OFFER WAS MADE, WOULD
ACCRUE THROUGH THE LAST QUARTER OF 1961, WHEN THE SPECIFICATION WAS
FILED.  ON REVIEW, THE COUR, OF APPEALS FOUND THAT THE NLRB HAD BEEN
GUILTY OF "INORDINATE" DELAY PREJUDICING THE COMPANY AND MODIFIED THE
ORDER TO ELIMINATE BACK PAY ACCRUING AFTER JULY 1959.  HELD:  WHILE THE
DELAY IN THE ADMINISTRATIVE PROCESS IS DEPLORABLE, THE COURT OF APPEALS
HERE EXCEEDED THE NARROW SCOPE OF REVIEW PROVIDED FOR THE NLRB'S
REMEDIAL ORDERS WHEN IT SHIFTED THE COST OF THE DELAY FROM THE COMPANY
TO THE EMPLOYEES.  PP. 262-266. 

399 F.2D 356, REVERSED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER, WHEN AN EMPLOYER HAS
IMPROPERLY FAILED TO REINSTATE STRIKING EMPLOYEES, AND THE NATIONAL
LABOR RELATIONS BOARD HAS AFTER CONSIDERABLE DELAY ORDERED BACK PAY FOR
THOSE EMPLOYEES, A COURT OF APPEALS MAY, ON ACCOUNT OF THE DELAY,
MODIFY THE BOARD'S ORDER TO PROVIDE AN EARLY CUTOFF DATE FOR BACK PAY. 
IN THE CIRCUMSTANCES OF THIS CASE, WE HOLD SUCH A MODIFICATION TO BE AN
UNWARRANTED INTERFERENCE WITH THE BOARD'S REMEDIAL POWER TO IMPLEMENT
THE POLICIES OF THE NATIONAL LABOR RELATIONS ACT. 

        I 

THE EMPLOYEES IN QUESTION CHOSE THE AMALGAMATED CLOTHING WORKERS OF
AMERICA, AFL-CIO, AS THEIR BARGAINING REPRESENTATIVE IN JANUARY 1954. 
AFTER THREE BARGAINING SESSIONS BETWEEN THE UNION AND THE COMPANY, THE
EMPLOYEES WENT OUT ON STRIKE IN APRIL 1954.  AT THAT POINT AND
THEREAFTER THE COMPANY REFUSED TO BARGAIN FURTHER WITH THE UNION
REPRESENTATIVES.  CHARGES OF UNFAIR LABOR PRACTICES, INCLUDING A
REFUSAL TO BARGAIN IN GOOD FAITH WERE FILED AGAINST THE COMPANY.  IN
APRIL 1955, WHILE THESE CHARGES WERE PENDING, THE UNION TERMINATED THE
STRIKE AND APPLIED FOR THE REINSTATEMENT OF MANY OF THE STRIKERS.  THE
COMPANY REINSTATED SOME OF THESE EMPLOYEES AND FAILED TO REINSTATE
OTHERS. 

IN FEBRUARY 1956 THE BOARD FOUND THAT THE COMPANY HAD INDEED BEEN
GUILTY OF AN UNLAWFUL REFUSAL TO BARGAIN.  IT ORDERED THE COMPANY TO
OFFER REINSTATEMENT TO ALL STRIKERS WHO APPLIED, AND TO "MAKE SUCH
APPLICANTS WHOLE FOR ANY LOSS OF PAY SUFFERED BY REASON OF THE . . .
REFUSAL, IF ANY, TO REINSTATE THEM."  J. H. RUTTER-REX MFG. CO., 115
N.L.R.B. 388, 391 (1956).  AS IS APPARENTLY THE BOARD'S PRACTICE IN
REINSTATEMENT CASES INVOLVING STRIKERS, THE ORDER DID NOT NAME THE
INDIVIDUALS COVERED, BUT LEFT DISPUTES OVER THE DETAILS OF
REINSTATEMENT AND BACK PAY TO THE COMPLIANCE STAGE OF THE PROCEEDINGS. 
THE COURT OF APPEALS ENFORCED THE BOARD'S ORDER, NLRB V. J. H. RUTTER
REX MFG. CO., 245 F.2D 594 (C.A. 5TH CIR. 1957), AND ENTERED ITS DECREE
ON AUGUST 19, 1957. 

ON AUGUST 21, 1957, THE BOARD'S REGIONAL OFFICE SENT THE COMPANY THE
STANDARD LETTER DESCRIBING COMPLIANCE PROCEDURES, WHICH INCLUDED THE
FOLLOWING: 

     "WHEN YOU HAVE FULLY COMPLIED WITH THE AFFIRMATIVE TERMS OF
THE

  DECREE AND THERE ARE NO VIOLATIONS OF ITS NEGATIVE PROVISIONS,

  YOU WILL BE NOTIFIED THAT THE CASE HAS BEEN CLOSED.  UNTIL YOU

  RECEIVE SUCH NOTICE YOU WILL KNOW THAT THE CASE STILL REMAINS

  OPEN FOR ALL PURPOSES AS AWAITING COMPLIANCE." 

ON NOVEMBER 7, 1957, THE COMPANY WROTE TO THE REGIONAL OFFICE STATING
THAT IT HAD COMPLIED WITH "SOME OF THE PROVISIONS OF THE DECREE," AND
ASKING THAT THE REGIONAL OFFICE BRING "ANY INSTANCE OF A FAILURE TO
FULLY COMPLY WITH THE ORDER" TO THE COMPANY'S ATTENTION.  THE REGIONAL
OFFICE DID NOT ANSWER THIS LETTER, AND THE COMPANY HEARD NOTHING UNTIL
MARCH 22, 1960, WHEN A BOARD COMPLIANCE OFFICER NOTIFIED THE COMPANY
THAT THE CASE HAD BEEN ASSIGNED TO HIM, AND REQUESTED PAYROLL AND OTHER
RECORDS NECESSARY TO DETERMINE THE EMPLOYMENT AND BACK-PAY RIGHTS OF
EMPLOYEES. 

ON NOVEMBER 16, 1961, THE REGIONAL OFFICE FILED A 428-PAGE BACK-PAY
SPECIFICATION, ALLEGING THAT THE COMPANY OWED MORE THAN $342,000 TO
SOME 207 STRIKERS WHO HAD EITHER NOT BEEN REINSTATED WITHIN FIVE DAYS
AFTER APPLYING, OR WHO HAD NEVER BEEN REINSTATED, IN VIOLATION OF THE
BOARD AND COURT ORDERS.  THE COMPANY APPLIED TO THE COURT OF APPEALS
FOR A PERMANENT STAY OF FURTHER ACTION IN THE BACK-PAY PROCEEDINGS,
ALLEGING THAT THE BOARD HAD DELAYED IMPROPERLY IN ISSUING THE
SPECIFICATION.  BY AFFIDAVIT, THE BOARD EXPLAINED THAT THE DELAY WAS
CAUSED IN PART BY THE GREAT COMPLEXITY OF THE TASK OF PROCESSING THE
CLAIMS OF APPROXIMATELY 600 STRIKERS, AND IN PART BY THE EXTREMELY
HEAVY CASELOAD AND SEVERE LIMITATIONS IN STAFF THAT THE NEW ORLEANS
REGIONAL OFFICE EXPERIENCED DURING THE LATE 1950'S.  THE COURT OF
APPEALS NOTED THAT THE DELAY WAS REGRETTABLE, BUT DENIED THE REQUESTED
STAY.  NLRB V. J. H. RUTTER-REX MFG. CO., 305 F.2D 242 (C.A. 5TH CIR.
1962). 

AFTER A LENGTHY HEARING, A TRIAL EXAMINER DENIED BACK PAY TO 35 OF
THE 207 CLAIMANTS, AND REDUCED THE AMOUNT DUE TO JUST OVER $160,000. 
HE DETERMINED THAT EACH EMPLOYEE SHOULD RECEIVE NET BACK PAY, COMPUTED
ACCORDING TO THE BOARD'S USUAL FORMULA, /1/  FOR THE PERIOD RUNNING
FROM FIVE DAYS AFTER HIS APPLICATION FOR REINSTATEMENT UNTIL THE
COMPANY MADE A COMPLYING OFFER.  WHERE NO OFFER WAS MADE, THE BACK PAY
WAS TO ACCRUE THROUGH THE LAST QUARTER OF 1961, THE QUARTER IN WHICH
THE SPECIFICATION WAS FILED.  HIS FINDINGS AND RECOMMENDATIONS WERE
ADOPTED WITH MINOR MODIFICATIONS BY THE BOARD ON JUNE 6, 1966.  J. H.
RUTTER-REX MFG. CO., 158 N.L.R.B. 1414 (1966).  BOTH THE EXAMINER AND
THE BOARD CONSIDERED AND REJECTED THE COMPANY'S CONTENTION THAT THE
DELAY IN ISSUING THE SPECIFICATION SHOULD BAR THE BACK-PAY AWARD,
EITHER IN WHOLE OR IN PART. 

ON REVIEW, THE COURT OF APPEALS FOUND THAT THE BOARD HAD BEEN GUILTY
OF "INORDINATE" DELAY, IN VIOLATION OF SEC. 6(A) OF THE ADMINISTRATIVE
PROCEDURE ACT, 60 STAT. 240, 5 U.S.C. 1005(A), NOW 5 U.S.C. 555(B)
(1964 ED., SUPP. IV), AND TO THE PREJUDICE OF THE COMPANY, WHICH HAD
BEEN "LULLED INTO THE BELIEF THAT THE BOARD WAS SATISFIED AND THAT NO
FURTHER ACTION WAS TO BE EXPECTED."  J. H. RUTTER-REX MFG. CO. V. NLRB,
399 F.2D 356, 363 (C.A. 5TH CIR. 1968).  ARGUING THAT THE PURPOSE OF
BACK-PAY AWARDS IS TO "DETER UNFAIR LABOR PRACTICES," ID., AT 364, AND
BELIEVING THAT A SUBSTANTIAL AWARD OF BACK PAY WOULD BE SUFFICIENT TO
ACHIEVE SUCH DETERRENT EFFECT, THE COURT MODIFIED THE BOARD ORDER TO
ELIMINATE ALL BACK PAY ACCRUING AFTER JULY 1, 1959, THUS REDUCING THE
AWARDS OF SOME 37 STRIKERS WHO HAD NOT YET RECEIVED COMPLYING OFFERS OF
REINSTATEMENT BY THAT DATE.  WE GRANTED CERTIORARI TO CONSIDER THE
PROPRIETY OF THIS MODIFICATION, /2/  393 U.S. 1116 (1969), AND WE
REVERSE THE JUDGMENT BELOW. 

II 

WE START WITH THE BROAD COMMAND OF SEC. 10(C) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, 61 STAT. 147, 29 U.S.C. 160(C), THAT UPON
FINDING THAT AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED, THE BOARD
SHALL ORDER THE VIOLATOR "TO TAKE SUCH AFFIRMATIVE ACTION INCLUDING
REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE
THE POLICIES" OF THE ACT.  THIS COURT HAS STATED THAT THE REMEDIAL
POWER OF THE BOARD IS "A BROAD DISCRETIONARY ONE, SUBJECT TO LIMITED
JUDICIAL REVIEW."  FIBREBOARD CORP. V. NLRB, 379 U.S. 203, 216 (1964). 

THE LEGITIMACY OF BACK PAY AS A REMEDY FOR UNLAWFUL DISCHARGE OR
LAWFUL FAILURE TO REINSTATE IS BEYOND DISPUTE, MASTRO PLASTICS CORP. V.
NLRB, 350 U.S. 270, 278 (1956), AND THE PURPOSE OF THE REMEDY IS
CLEAR.  "A BACK PAY ORDER IS A REPARATION ORDER DESIGNED TO VINDICATE
THE PUBLIC POLICY OF THE STATUTE BY MAKING THE EMPLOYEES WHOLE FOR
LOSSES SUFFERED ON ACCOUNT OF AN UNFAIR LABOR PRACTICE."  NATHANSON V.
NLRB, 344 U.S. 25, 27 (1952).  AS WITH THE BOARD'S OTHER REMEDIES, THE
POWER TO ORDER BACK PAY "IS FOR THE BOARD TO WIELD, NOT FOR THE
COURTS."  NLRB V. SEVEN-UP BOTTLING CO., 344 U.S. 344, 346 (1953). 
"WHEN THE BOARD, 'IN THE EXERCISE OF ITS INFORMED DISCRETION,'  MAKES
AN ORDER OF RESTORATION BY WAY OF BACK PAY, THE ORDER 'SHOULD STAND
UNLESS IT CAN BE SHOWN THAT THE ORDER IS A PATENT ATTEMPT TO ACHIEVE
ENDS OTHER THAN THOSE WHICH CAN FAIRLY BE SAID TO EFFECTUATE THE
POLICIES OF THE ACT.'"  ID., AT 346-347. 

HERE THE BOARD ORDERED BACK PAY THROUGH DECEMBER 1961 FOR EMPLOYEES
WHO HAD NOT YET RECEIVED COMPLYING OFFERS OF REINSTATEMENT BY THAT
DATE.  THAT ORDER CLEARLY FALLS WITHIN THE GENERAL PURPOSE OF MAKING
THE EMPLOYEES WHOLE, AND THUS RESTORING THE ECONOMIC STATUS QUO THAT
WOULD HAVE OBTAINED BUT FOR THE COMPANY'S WRONGFUL REFUSAL TO REINSTATE
THEM.  THE EMPLOYEES ENCOMPASSED BY THE ORDER EARNED LESS DURING THE
RELEVANT QUARTERLY PERIODS THAN THEY WOULD HAVE, HAD THEY BEEN
REINSTATED IN THEIR OLD OR SUBSTANTIALLY EQUIVALENT JOBS WITH THE
COMPANY.  THUS THE COURT OF APPEALS' MODIFICATION, CUTTING OFF THE
ACCRUAL OF BACK PAY AT THE ARBITRARY DATE OF JULY 1, 1959, LEFT THE
EMPLOYEES WHO HAD NOT BEEN REINSTATED BY THAT DATE WORSE OFF THAN THEY
WOULD HAVE BEEN BUT FOR THE COMPANY'S WRONGFUL ACTION IN REFUSING
REINSTATEMENT.  EITHER THE COMPANY OR THE EMPLOYEES HAD TO BEAR THE
COST OF THE BOARD'S DELAY.  THE BOARD PLACED THAT COST UPON THE
COMPANY, WHICH HAD WRONGFULLY FAILED TO REINSTATE THE EMPLOYEES.  IN AN
EFFORT TO DISCIPLINE THE BOARD FOR ITS DELAY, THE COURT SHIFTED PART OF
THAT COST FROM THE WRONGDOING COMPANY TO THE INNOCENT EMPLOYEES. 

THE COURT OF APPEALS JUSTIFIED THE MODIFICATION AS A PROPER
BALANCING OF THE INTERESTS OF THE COMPANY, WHICH IT FOUND WAS
PREJUDICED IN LITIGATING THE BACK-PAY CLAIMS BY THE BOARD'S DELAY, AND
THE INTERESTS OF THE EMPLOYEES IN FULL RESTITUTION.  IT FOUND STATUTORY
SUPPORT FOR THE COMPANY'S POSITION IN WHAT IT TOOK TO BE THE BOARD'S
VIOLATION OF ITS DUTY UNDER THE ADMINISTRATIVE PROCEDURE ACT TO
"PROCEED WITH REASONABLE DISPATCH TO CONCLUDE ANY MATTER PRESENTED TO
IT."  5 U.S.C. 1005(A).  THUS, THE COURT OF APPEALS REASONED, THE CASE
FELL WITHIN THE ADMONITION THAT REVIEWING COURTS IN LABOR CASES NOT
"RUBBER-STAMP THEIR AFFIRMANCE OF ADMINISTRATIVE DECISIONS THAT THEY
DEEM INCONSISTENT WITH A STATUTORY MANDATE OR THAT FRUSTRATE THE
CONGRESSIONAL POLICY UNDERLYING A STATUTE."  NLRB V. BROWN, 380 U.S.
278, 291 (1965). 

ASSUMING WITHOUT DECIDING THAT THE DELAY IN ISSUING THE
SPECIFICATION DID VIOLATE THE BOARD'S DUTY TO PROMPT ACTION UNDER THE
ADMINISTRATIVE PROCEDURE ACT, IT DOES NOT FOLLOW THAT ENFORCEMENT OF
THE FULL BACK-PAY REMEDY WAS AN ABUSE OF THE BOARD'S DISCRETION. 
WRONGED EMPLOYEES ARE AT LEAST AS MUCH INJURED BY THE BOARD'S DELAY IN
COLLECTING THEIR BACK PAY AS IS THE WRONGDOING EMPLOYER.  IN VIEW OF
"THE ECONOMIC HARDSHIP CAUSED BY MANY YEARS OF UNDESERVEDLY SUBSTANDARD
EARNINGS," LENGTHY DELAYS "MUST RENDER THE BACK PAY AWARD A WHOLLY
INADEQUATE AND UNSATISFACTORY REMEDY" TO THE EMPLOYEES FOR THE
COMPANY'S REFUSAL TO REINSTATE THEM.  NLRB V. MASTRO PLASTICS CORP.,
354 F.2D 170, 180 (C.A. 2D CIR. 1965).  THIS COURT HAS HELD BEFORE THAT
THE BOARD IS NOT REQUIRED TO PLACE THE CONSEQUENCES OF ITS OWN DELAY,
EVEN IF INORDINATE, UPON WRONGED EMPLOYEES TO THE BENEFIT OF WRONGDOING
EMPLOYERS.  NLRB V. ELECTRIC CLEANER CO., 315 U.S. 685, 698 (1942);
LABOR BOARD V. KATZ, 369 U.S. 736, 748 N. 16 (1962). 

THE COURT OF APPEALS REASONED FURTHER THAT THE PURPOSE OF THE BACK
PAY REMEDY IS DETERRENCE OF UNFAIR LABOR PRACTICES, AND THAT THE
SUBSTANTIAL BACK-PAY AWARD THAT IT ENFORCED WOULD SUFFICIENTLY SERVE
THAT DETERRENT PURPOSE.  BUT THE BOARD COULD PROPERLY CONCLUDE THAT
BACK PAY IS NOT ONLY PUNISHMENT FOR AN UNFAIR LABOR PRACTICE, BUT IS
ALSO A REMEDY DESIGNED TO RESTORE, SO FAR AS POSSIBLE, THE STATUS QUO
THAT WOULD HAVE OBTAINED BUT FOR THE WRONGFUL ACT.  CF. PHELPS DODGE
CORP. V. NLRB, 313 U.S. 177, 194 (1941). 

FINALLY, THE COURT OF APPEALS REASONED THAT THE COMPANY WAS "LULLED
INTO THE BELIEF THAT THE BOARD WAS SATISFIED AND THAT NO FURTHER ACTION
WAS TO BE EXPECTED."  399 F.2D, AT 363.  WE NEED NOT DECIDE WHETHER
THIS SORT OF ESTOPPEL ARGUMENT WOULD JUSTIFY A COURT IN REDUCING A BACK
PAY AWARD, FOR NO ESTOPPEL APPEARS IN THIS CASE.  THE BOARD CLEARLY
INFORMED THE COMPANY THAT THIS CASE WOULD REMAIN OPEN AS AWAITING
COMPLIANCE UNTIL THE COMPANY RECEIVED A NOTICE THAT THE CASE WAS
CLOSED.  NO SUCH CLOSING NOTICE WAS EVER GIVEN.  AS THE COURT OF
APPEALS ITSELF STATED, THE COMPANY'S SUBSEQUENT LETTER ASKING THAT
VIOLATIONS OF THE ORDER BE CALLED TO ITS ATTENTION "COULD NOT SHIFT OR
AVOID ITS DUTY OF COMPLIANCE."  IBID. 

WE DO NOT MEAN THAT DELAY IN THE ADMINISTRATIVE PROCESS IS OTHER
THAN DEPLORABLE.  IT IS DEPLORABLE IF, AS THE COURT OF APPEALS THOUGHT,
THE COMPANY WAS HAMPERED IN THE PRESENTATION OF ITS DEFENSES TO THE
BACK-PAY SPECIFICATION BY THE DELAY.  IT IS EVEN MORE DEPLORABLE IF, AS
SEEMS CLEAR, INNOCENT EMPLOYEES HAD TO LIVE FOR SOME YEARS ON REDUCED
INCOMES AS A COMBINED RESULT OF THE DELAY AND THE COMPANY'S ILLEGAL
FAILURE TO REINSTATE THEM.  IT MAY BE THAT THE COMPANY COULD HAVE,
THROUGH THE COURTS, COMPELLED EARLIER BOARD ACTION.  /3/  BUT THE COURT
OF APPEALS EXCEEDED THE NARROW SCOPE OF REVIEW PROVIDED FOR THE BOARD'S
REMEDIAL ORDERS WHEN IT SHIFTED THE COST OF THE DELAY FROM THE COMPANY
TO THE EMPLOYEES IN THIS CASE. 

       REVERSED. 

/1/  NLRB V. SEVEN-UP BOTTLING CO., 344 U.S. 344, 345 (1953). 

/2/  THE COURT OF APPEALS ALSO REVERSED BACK-PAY AWARDS AS TO 10
STRIKERS IN THEIR ENTIRETY, FINDING THE AWARDS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE.  399 F.2D, AT 365.  CERTIORARI WAS NOT SOUGHT AS
TO THIS MODIFICATION OF THE BOARD'S ORDER. 

/3/  SECTION 10(E)(A) OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C.
1009(E)(A), NOW 5 U.S.C. 706(1) (1964 ED., SUPP. IV), PROVIDES THAT
COURTS SHALL "COMPEL AGENCY ACTION UNLAWFULLY WITHHELD OR UNREASONABLY
DELAYED." 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
HARLAN CONCUR, DISSENTING. 

UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474, REQUIRES A DISMISSAL
OF THE WRIT OF CERTIORARI.     TO START WITH, THE BOARD IS ALLOWED A
WIDE FIELD OF DISCRETION OVER AWARDS OF BACK PAY AGAINST A COMPANY
FOUND TO HAVE COMMITTED AN UNFAIR LABOR PRACTICE.  AS THE COURT SAID IN
PHELPS DODGE CORP. V. NLRB, 313 U.S. 177, 198: 

     "THE REMEDY OF BACK PAY, IT MUST BE REMEMBERED, IS ENTRUSTED
TO

  THE BOARD'S DISCRETION; IT IS NOT MECHANICALLY COMPELLED BY THE

ACT.  AND IN APPLYING ITS AUTHORITY OVER BACK PAY ORDERS, THE

  BOARD HAS NOT USED STEREOTYPED FORMULAS BUT HAS AVAILED ITSELF OF

  THE FREEDOM GIVEN IT BY CONGRESS TO ATTAIN JUST RESULTS IN

  DIVERSE, COMPLICATED SITUATIONS." 

THUS THE EMPLOYEES IN THIS CASE HAVE NO AUTOMATIC "RIGHT" TO ANY AWARD
OF BACK PAY. 

THE UNIVERSAL CAMERA CASE CONCERNED THE SCOPE OF JUDICIAL REVIEW OF
ORDERS OF THE BOARD.  PRIOR TO THAT DECISION, MANY COURTS HAD CONCEIVED
THEIR FUNCTION OF REVIEW AS AN EXTREMELY NARROW ONE; SOME COURTS LOOKED
ONLY FOR EVIDENCE WHICH, WHEN VIEWED IN ISOLATION, SUBSTANTIATED THE
BOARD'S FINDINGS.  CONGRESS REGISTERED ITS DISSATISFACTION WITH THIS
RESTRICTED SCOPE OF REVIEW BY STATING THE PROPER TEST IN THE TAFT
HARTLEY ACT AS ONE OF "SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS
A WHOLE."  61 STAT. 148, 29 U.S.C. 160(E).  THIS MEANT THAT THE COURTS
OF APPEALS WERE TO "ASSUME MORE RESPONSIBILITY FOR THE REASONABLENESS
AND FAIRNESS OF LABOR BOARD DECISIONS" THAN HAD BEEN THE PRACTICE OF
MANY OF THESE COURTS IN THE PAST.  340 U.S.,AT 490. 

THE IMPACT OF THIS DECISION WAS TO VEST THE COURTS OF APPEALS WITH
GENERAL SUPERVISORY RESPONSIBILITY OVER BOARD DECISIONS AND ORDERS. 
ACCORDINGLY, THE ROLE OF THIS COURT WAS TO BE AN EXTREMELY LIMITED
ONE.  THE COURT IN UNIVERSAL CAMERA PUT IT THIS WAY: 

     "OUR POWER TO REVIEW THE CORRECTNESS OF APPLICATION OF THE

  PRESENT STANDARD OUGHT SELDOM TO BE CALLED INTO ACTION.  WHETHER

  ON THE RECORD AS A WHOLE THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT

  AGENCY FINDINGS IS A QUESTION WHICH CONGRESS HAS PLACED IN THE

KEEPING OF THE COURTS OF APPEALS.  THIS COURT WILL INTERVENE ONLY

  IN WHAT OUGHT TO BE THE RARE INSTANCE WHEN THE STANDARD APPEARS

  TO HAVE BEEN MISAPPREHENDED OR GROSSLY MISAPPLIED."  ID., AT

  490-491. 

THE PROBLEM IN THE PRESENT CASE IS ONE OF WORKING OUT THE EQUITIES
OF A BACK-PAY ORDER.  BECAUSE THE BOARD'S DELAY IN INITIATING
COMPLIANCE PROCEEDINGS WITH RESPECT TO ITS ORIGINAL ORDER WAS DEEMED
UNREASONABLE, THE COURT OF APPEALS SAW FIT TO MODIFY THE TERMS OF THAT
ORDER.  THE IMPACT OF THE SPECIFIC FACTS RELATING TO THE BOARD'S AND
THE COMPANY'S ACTIONS IN THIS CASE WAS TAKEN INTO ACCOUNT BY THE COURT
OF APPEALS IN REVIEWING THE TERMS OF THE BACK-PAY ORDER.  IT ARRIVED AT
ITS JUDGMENT AS AN EXERCISE OF ITS RESPONSIBILITY "FOR ASSURING THAT
THE BOARD KEEPS WITHIN REASONABLE BOUNDS" (ID., AT 490) IN A SUBJECT
AREA THAT NECESSARILY INVOLVES "DIVERSE, COMPLICATED SITUATIONS." 

CASTING THE ISSUE AS ONE OF "LAW" RATHER THAN AS ONE OF "FACT" DOES
NOT CONCEAL THE SUBSTANTIAL DEPARTURE IN THIS CASE FROM THE LEARNING OF
UNIVERSAL CAMERA:  THAT THE COURTS OF APPEALS, AND NOT THIS COURT, ARE
THE WATCHDOGS OF THE BOARD. 

I WOULD DISMISS THE WRIT AS IMPROVIDENTLY GRANTED. 

ARNOLD ORDMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, PETER L. STRAUSS, DOMINICK L.
MANOLI, NORTON J. COME, AND ALLISON W. BROWN, JR. 

HENRY J. READ ARGUED THE CAUSE FOR RESPONDENT J. H. RUTTER-REX
MANUFACTURING CO., INC. WITH HIM ON THE BRIEFS WERE PETER H. BEER AND
DANIEL LUND.  JACOB SHEINKMAN, RALPH N. JACKSON, AND JAMES J. GRAHAM
FILED A BRIEF FOR RESPONDENT AMALGAMATED CLOTHING WORKERS' OF AMERICA,
AFL-CIO. 
..END :

















DOWELL V. BOARD OF EDUCATION, 396 U.S. 269 


       DOWELL ET AL. V. BOARD OF EDUCATION OF OKLAHOMA CITY PUBLIC

           SCHOOLS ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT

        NO. 603.  DECIDED DECEMBER 15, 1969 


THE DISTRICT COURT APPROVED A SCHOOL BOARD'S DESEGREGATION PROPOSAL
TO REVISE SCHOOL BOUNDARIES EFFECTIVE AT THE START OF THE SCHOOL YEAR
AND ORDERED THE BOARD TO SUBMIT A COMPLETE DESEGREGATION PLAN WITHIN
TWO MONTHS THEREAFTER.  INTERVENORS APPEALED WITH RESPECT TO THE
BOUNDARY PROVISION AND SOUGHT A STAY OF ITS EFFECTUATION.  THE COURT OF
APPEALS SUMMARILY VACATED THE DISTRICT COURT'S ORDER AS INAPPROPRIATE
EXCEPT AS PART OF AN OVERALL PLAN.  HELD:  THE COURT OF APPEALS SHOULD
HAVE ALLOWED THE IMPLEMENTATION OF THE PROPOSAL, AS TO WHICH
PETITIONERS DID NOT OBJECT, PENDING ARGUMENT AND DECISION OF THE
APPEAL.  ALEXANDER V. HOLMES COUNTY BOARD, ANTE, P. 19. 

CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

IN THIS SCHOOL DESEGREGATION CASE, THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA, BY ORDER ENTERED AUGUST 13, 1969,
APPROVED RESPONDENT OKLAHOMA CITY SCHOOL BOARD'S PROPOSAL FOR
FURTHERING DESEGREGATION OF SOME OKLAHOMA CITY SCHOOLS BY REVISING
SCHOOL ATTENDANCE BOUNDARIES EFFECTIVE SEPTEMBER 2, 1969, THE START OF
THE 1969-1970 SCHOOL YEAR.  THE ORDER ALSO DECREED THAT THAT SCHOOL
BOARD PREPARE AND SUBMIT ON OR BEFORE NOVEMBER 1, 1969, A COMPREHENSIVE
PLAN FOR THE COMPLETE DESEGREGATION OF THE ENTIRE SCHOOL SYSTEM. 
INTERVENORS OF THE "MCWILLIAMS CLASS" APPEALED TO THE COURT OF APPEALS
FOR THE TENTH CIRCUIT FROM THE PROVISION OF THE ORDER WHICH APPROVED
IMPLEMENTATION OF THE SCHOOL BOARD'S PROPOSED BOUNDARY CHANGES BY
SEPTEMBER 2, 1969, AND SOUGHT A STAY OF THAT PROVISION PENDING DECISION
OF THE APPEAL.  THE COURT OF APPEALS, ON AUGUST 27, 1969, INSTEAD OF
LIMITING RELIEF TO THE REQUESTED STAY, SUMMARILY VACATED THE DISTRICT
COURT'S APPROVAL OF THE SCHOOL BOARD'S PROPOSAL.  THE COURT OF APPEALS
HELD THAT CONSIDERATION OF THE PROPOSAL WAS INAPPROPRIATE "AT THIS
STAGE OF THE PROCEEDINGS" AND SHOULD AWAIT THE DISTRICT COURT'S
"CONSIDERATION AND ADOPTION OF A FULL AND COMPREHENSIVE PLAN FOR THE
COMPLETE DESEGREGATION AND INTEGRATION OF THE OKLAHOMA CITY SCHOOL
SYSTEM AS CONTEMPLATED IN THE COURT'S ORDER OF AUGUST 13, 1969." 

THE PETITION FOR CERTIORARI IS GRANTED.  /1/  THE COURT OF APPEALS
ERRED IN HOLDING THAT THE DISTRICT COURT'S APPROVAL OF THE SCHOOL
BOARD'S PLAN MUST BE VACATED BECAUSE CONSIDERATION OF THE PROPOSAL WAS
INAPPROPRIATE EXCEPT IN THE CONTEXT OF A COMPREHENSIVE CITY-WIDE PLAN. 
THE BURDEN ON A SCHOOL BOARD IS TO DESEGREGATE AN UNCONSTITUTIONAL DUAL
SYSTEM AT ONCE.  GREEN V. COUNTY SCHOOL BOARD, 391 U.S. 430, 439
(1968); ALEXANDER V. HOLMES COUNTY BOARD OF EDUCATION, ANTE, P. 19. 
SINCE THE DISTRICT COURT ORDERED THE DESEGREGATION MEASURES INTO
EFFECT, AND SINCE THE PETITIONERS DID NOT OBJECT TO THEIR SCOPE, THE
COURT OF APPEALS SHOULD HAVE PERMITTED THEIR IMPLEMENTATION PENDING
ARGUMENT AND DECISION OF THE APPEAL.  ALEXANDER V. HOLMES COUNTY BOARD
OF EDUCATION, SUPRA.  THE ORDER OF THE COURT OF APPEALS IS THEREFORE
VACATED AND THE CASE IS REMANDED TO THAT COURT PROMPTLY TO HEAR AND
DETERMINE, CONSISTENTLY WITH ALEXANDER, ALL PENDING APPEALS FROM THE
DISTRICT COURT ORDER.  /2/

              IT IS SO ORDERED. 

/1/  THE PETITION WAS FILED PURSUANT TO AN EXPEDITED SCHEDULE
SPECIFIED BY MR. JUSTICE BRENNAN WHEN ON PETITIONERS' APPLICATION HE,
AS ACTING CIRCUIT JUSTICE, VACATED THE ORDER OF THE COURT OF APPEALS
AND REINSTATED THAT OF THE DISTRICT COURT, PENDING ACTION BY THIS COURT
ON THE PETITION. 

/2/  WE ARE INFORMED BY THE PARTIES THAT THE SCHOOL BOARD ON
SEPTEMBER 12, 1969, ALSO FILED AN APPEAL FROM THE DISTRICT COURT'S
APPROVAL OF THE BOARD'S PROPOSAL, AND ANOTHER APPEAL FROM THE DISTRICT
COURT'S DENIAL ON SLPTEMBER 11, 1969, OF THE BOARD'S APPLICATION FOR
AMENDMENT OF THE AUGUST 13 ORDER TO EXTEND FROM NOVEMBER 1, 1969, TO
MARCH 31, 1970, THE TIME FOR FILING OF A COMPREHENSIVE DESEGREGATION
PLAN FOR SECONDARY SCHOOLS.  THE DISTRICT COURT GRANTED THE BOARD'S
APPLICATION AS TO A PLAN FOR DESEGREGATION OF THE ELEMENTARY SCHOOLS. 

JACK GREENBERG AND JAMES M. NABRIT III FOR DOWELL ET AL., AND CALVIN
W. HENDRICKSON FOR SANGER ET AL., PETITIONERS. 

J. HARRY JOHNSON AND LESLIE L. CONNER FOR THE BOARD OF EDUCATION OF
OKLAHOMA CITY PUBLIC SCHOOLS ET AL., AND V. P. CROWE, C. HAROLD
THWEATT, GEORGE F. SHORT, AND NORMAN E. REYNOLDS FOR MCWILLIAMS ET AL.,
RESPONDENTS. 
..END :






CARLTON V. CONNER, 396 U.S. 272 


       CARLTON ET AL. V. CONNER, COMMISSIONER OF AGRICULTURE OF

           FLORIDA

        APPEAL FROM THE SUPREME COURT OF FLORIDA

        NO. 625.  DECIDED DECEMBER 15, 1969 


223 SO.2D 324, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

JOHN R. BERANEK AND CHARLES H. DAMSEL, JR., FOR APPELLANTS. 

ROBERT A. CHASTAIN FOR APPELLEE. 
..END :








CARTER V. WEST FELICIANA SCHOOL BD., 396 U.S. 226 


       CARTER ET AL. V. WEST FELICIANA PARISH SCHOOL BOARD ET AL.

        ON APPLICATION TO THE HONORABLE HUGO L. BLACK, CIRCUIT

           JUSTICE FOR THE FIFTH CIRCUIT, FOR A TEMPORARY

           INJUNCTIVE ORDER

        NO. 944.  DECIDED DECEMBER 13, 1969 


PETITIONERS, WHOSE PETITION FOR CERTIORARI SEEKS REVIEW OF A COURT OF
APPEALS RULING AUTHORIZING A DELAY IN STUDENT DESEGREGATION IN THREE
LOUISIANA SCHOOL DISTRICTS UNTIL SEPTEMBER 1970, ARE-- PENDING
DISPOSITION OF THEIR PETITION-- GRANTED TEMPORARY INJUNCTIVE RELIEF
REQUIRING THE RESPONDENT SCHOOL BOARDS TO TAKE THE NECESSARY
PRELIMINARY STEPS TO EFFECTUATE COMPLETE STUDENT DESEGREGATION BY
FEBRUARY 1, 1970.  ALEXANDER V. HOLMES COUNTY BOARD OF EDUCATION, ANTE,
P. 19. 

SEE 419 F.2D 1211.  APPLICATION GRANTED AND JUDGMENT VACATED IN
PART. 

PER CURIAM. 

THIS MATTER REACHES THE COURT ON AN APPLICATION PRESENTED TO MR.
JUSTICE BLACK, AS CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT, SEEKING A
TEMPORARY INJUNCTIVE ORDER AND OTHER RELIEF; AND IT APPEARING THAT 

1.  THREE CASES WERE ORIGINALLY FILED IN 1965, SEEKING THE
DESEGREGATION OF THREE LOUISIANA SCHOOL DISTRICTS. 

2.  PURSUANT TO ORDERS OF THE DISTRICT COURTS, IN JULY OF THIS YEAR
THE OFFICE OF EDUCATION OF THE UNITED STATES DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE PREPARED AND SUBMITTED TERMINAL DESEGREGATION
PLANS FOR EACH OF THE DISTRICTS HERE INVOLVED FOR THE SCHOOL YEAR 1969
1970.  THESE PLANS WERE REJECTED BY THE DISTRICT COURTS. 

3.  THE DISTRICT COURTS' ORDERS WERE REVERSED BY THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT SITTING EN BANC, ON DECEMBER 1,
1969, SUBSEQUENT TO THIS COURT'S DECISION IN ALEXANDER V. HOLMES COUNTY
BOARD OF EDUCATION, ANTE, AT 19.  THAT COURT ORDERED RESPONDENT SCHOOL
BOARDS AND 13 OTHER SCHOOL BOARDS TO DESEGREGATE FACULTIES COMPLETELY
AND TO ADOPT PLANS FOR CONVERSION TO UNITARY SCHOOL SYSTEMS BY FEBRUARY
1, 1970, BUT AUTHORIZED A DELAY IN PUPIL DESEGREGATION UNTIL SEPTEMBER
1970. 

4.  ON DECEMBER 10, 1969, PETITIONERS FILED IN THIS COURT A PETITION
FOR A WRIT OF CERTIORARI, TOGETHER WITH A MOTION TO ADVANCE
CONSIDERATION OF THE PETITION AND A MOTION FOR SUMMARY DISPOSITION,
CONTENDING THAT THE DECISION OF THE COURT OF APPEALS IS INCONSISTENT
WITH THIS COURT'S DECISION IN ALEXANDER V. HOLMES COUNTY BOARD OF
EDUCATION, SUPRA.  THE RELIEF SOUGHT ON THE MERITS IS THE
IMPLEMENTATION OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
PLANS FOR STUDENT ASSIGNMENTS ON OR BEFORE FEBRUARY 1, 1970,
SIMULTANEOUS WITH THE OTHER STEPS ORDERED BY THE COURT OF APPEALS. 

5.  PETITIONERS, BY THIS APPLICATION SEEK A TEMPORARY INJUNCTIVE
ORDER 

     "REQUIRING THE RESPONDENT SCHOOL BOARDS, PENDING A DECISION BY

  THIS COURT ON THE MERITS, TO TAKE ALL NECESSARY CLERICAL AND

  ADMINISTRATIVE STEPS-- SUCH AS DETERMINING NEW STUDENT

  ASSIGNMENTS, BUS ROUTES AND ATHLETIC SCHEDULES AND PREPARING FOR

  ANY NECESSARY PHYSICAL CHANGES-- PREPARATORY TO COMPLETE

  CONVERSION UNDER THE HEW PLANS BY FEBRUARY 1, 1970.  IF

  PETITIONERS ARE SUCCESSFUL, THE ADMINISTRATIVE AND CLERICAL TASKS

  NECESSARY TO CONVERSION WILL HAVE BEEN UNDERTAKEN ROUGHLY

  ACCORDING TO THE TIMETABLE ESTABLISHED BY THE COURT BELOW IN THE

  ALEXANDER CASES, AND PETITIONERS' RIGHT TO EFFECTIVE RELIEF WILL

  NOT HAVE BEEN PUT IN QUESTION BY THE PASSAGE OF TIME.  IF

  PETITIONERS ARE UNSUCCESSFUL IN THIS COURT, THE SCHOOL BOARDS

  WOULD BE UNDER NO COMPULSION TO CONVERT DURING THIS SCHOOL

  YEAR."  APPLICATION TO THE HONORABLE HUGO L. BLACK, CIRCUIT

  JUSTICE FOR THE FIFTH CIRCUIT, FOR A TEMPORARY INJUNCTIVE ORDER

  3-4. 

IT IS HEREBY ADJUDGED, ORDERED, AND DECREED: 

(1) PETITIONERS' APPLICATION FOR A TEMPORARY INJUNCTIVE ORDER
REQUIRING THE RESPONDENT SCHOOL BOARDS TO TAKE SUCH PRELIMINARY STEPS
AS MAY BE NECESSARY TO PREPARE FOR COMPLETE STUDENT DESEGREGATION BY
FEBRUARY 1, 1970, IS GRANTED.  ALEXANDER V. HOLMES COUNTY BOARD OF
EDUCATION, SUPRA. 

(2) BY WAY OF INTERIM RELIEF, AND PENDING THIS COURT'S DISPOSITION
OF THE PETITION FOR CERTIORARI, THE JUDGMENT OF THE COURT OF APPEALS IS
VACATED INSOFAR AS IT DEFERRED DESEGREGATION OF SCHOOLS UNTIL THE
SCHOOL YEAR 1970-1971. 

(3) BY WAY OF INTERIM RELIEF PENDING FURTHER ORDER OF THIS COURT,
THE RESPONDENT SCHOOL BOARDS ARE DIRECTED TO TAKE NO STEPS WHICH ARE
INCONSISTENT WITH, OR WHICH WILL TEND TO PREJUDICE OR DELAY, A SCHEDULE
TO IMPLEMENT ON OR BEFORE FEBRUARY 1, 1970, DESEGREGATION PLANS
SUBMITTED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE FOR
STUDENT ASSIGNMENT SIMULTANEOUS WITH THE OTHER STEPS ORDERED BY THE
COURT OF APPEALS. 

(4) THE RESPONDENTS ARE DIRECTED TO FILE ANY RESPONSE TO THE
PETITION HEREIN ON OR BEFORE JANUARY 2, 1970. 

RICHARD B. SOBOL, MURPHY W. BELL, ROBERT F. COLLINS, NORMAN C.
AMAKER, AND MELVYN ZARR FOR PETITIONERS. 
..END :




















FIRST NATIONAL BANK V. DICKINSON, 396 U.S. 122 


       FIRST NATIONAL BANK IN PLANT CITY V. DICKINSON, COMPTROLLER

           OF FLORIDA, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 FIFTH CIRCUIT

        NO. 19.  ARGUED OCTOBER 16, 1969-- DECIDED DECEMBER 9, 1969

           /0/ 


PETITIONER IN NO. 19, A NATIONAL BANK IN FLORIDA, HAVING BEEN GRANTED
PERMISSION BY THE COMPTROLLER OF THE CURRENCY OF THE UNITED STATES,
OPERATED TWO OFF-PREMISES SERVICES.  (1) THE BANK OPERATED AN ARMORED
CAR (A "MOBILE DRIVE-IN"), EQUIPPED WITH A GLASS WINDOW AND CUSTOMER'S
SERVICE COUNTER AND STAFFED BY A DRIVER-GUARD AND TELLER (BOTH BANK
EMPLOYEES).  THE ARMORED CAR DELIVERED CASH IN EXCHANGE FOR CHECKS AND
RECEIVED CASH AND CHECKS AT THE DEPOSITORS' PREMISES, THE BANK INSURING
THE FUNDS DURING TRANSIT.  (2) IN A SHOPPING CENTER ABOUT A MILE FROM
THE HOME PREMISES THE BANK MAINTAINED A SECURED RECEPTACLE, TO WHICH
CUSTOMERS HAD KEYS, EQUIPPED WITH A WRITING TABLE AND BANK FORMS. 
MONIES AND NIGHT BAGS WERE LEFT AT THIS FACILITY, WHICH WAS SERVICED
DAILY BY THE ARMORED CAR, THE TELLER RECORDING DEPOSITS BY THE
CUSTOMER'S NUMBER AND THE DRIVER-GUARD VERIFYING THE BANK USED A
"COMPREHENSIVE DUAL CONTROL CONTRACT" AND TRANSMITTAL SLIPS WHICH
SPECIFIED THAT IN TRANSPORTING FUNDS THE BANK ACTED AS AGENT FOR THE
CUSTOMER AND THAT FUNDS WOULD NOT BE DEEMED DEPOSITED UNTIL DELIVERED
AT THE BANK.  UNDER SEC. 7 OF THE MCFADDEN ACT A NATIONAL BANK MAY
ESTABLISH AND OPERAT( A "BRANCH" ONLY UNDER SUCH CONDITIONS AS STATE
LAW WOULD AUTHORIZE A STATE BANK TO ESTABLISH AND OPERATE SUCH A
BRANCH.  THE FLORIDA COMPTROLLER REQUESTED PETITIONER BANK TO CEASE
BOTH SERVICES AS VIOLATIVE OF FLORIDA LAW, WHICH PROHIBITS BRANCH
BANKING ALTOGETHER.  THEREUPON THE BANK BROUGHT SUIT IN THE DISTRICT
COURT FOR DECLARATORY AND INJUNCTIVE RELIEF.  THE UNITED STATES
COMPTROLLER INTERVENED ON THE BANK'S SIDE AND SEVERAL STATE BANKS
INTERVENED IN SUPPORT OF THE FLORIDA COMPTROLLER.  THE DISTRICT COURT
HELD FOR PETITIONERS, CONCLUDING THAT THE SERVICES DID NOT CONSTITUTE
BRANCHING WITHIN THE MEANING OF SEC. 7(F) OF THE MCFADDEN ACT, WHICH AS
SET FORTH IN 12 U.S.C. 36(F) DEFINES A "BRANCH" AS INCLUDING "ANY
BRANCH BANK, BRANCH OFFICE, BRANCH AGENCY, ADDITIONAL OFFICE, OR ANY
BRANCH PLACE OF BUSINESS . . . AT WHICH DEPOSITS ARE RECEIVED, OR
CHECKS PAID, OR MONEY LENT."  THE COURT OF APPEALS REVERSED.  HELD: 

1.  THE POLICY OF "COMPETITIVE EQUALITY" BETWEEN NATIONAL AND STATE
BANKS IS FIRMLY EMBEDDED IN THE STATUTES GOVERNING THE NATIONAL BANKING
SYSTEM, AND UNDER THE MCFADDEN ACT A NATIONAL BANK MAY ESTABLISH A
"BRANCH" WITHIN THE MEANING OF THE FEDERAL DEFINITION IN 12 U.S.C.
36(F) ONLY UNDER THE SAME CONDITIONS AS STATE LAW WOULD AUTHORIZE A
STATE BANK TO DO SO, FIRST NATIONAL BANK OF LOGAN V. WALKER BANK &
TRUST CO., 385 U.S. 252.  PP. 130-133. 

2.  THE TERM "BRANCH BANK" IN 12 U.S.C. 36(F) INCLUDES ANY PLACE FOR
RECEIVING DEPOSITS APART FROM THE CHARTERED PREMISES.  HERE
(REGARDLESS) OF THE FORMAL ARRANGEMENTS BETWEEN THE BANK AND ITS
CONTRACTING CUSTOMERS) AT THE TIME A CUSTOMER DELIVERS MONEY EITHER TO
THE ARMORED CAR OR THE STATIONARY RECEPTACLE, THE BANK HAS RECEIVED A
DEPOSIT WITHIN THE MEANING OF THAT PROVISION, AND THE PLACE OF THE
DELIVERY IS AN "ADDITIONAL OFFICE OR . . . BRANCH PLACE OF BUSINESS . .
. AT WHICH DEPOSITS ARE RECEIVED" WITHIN THE FEDERAL DEFINITION OF A
BRANCH BANK IN THE STATUTE.  PP. 134-137. 

3.  SINCE FLORIDA DOES NOT PERMIT BRANCHING PRIVILEGES TO STATE
BANKS, THE CONGRESSIONAL POLICY OF COMPETITIVE EQUALITY FORECLOSES THE
COMPTROLLER OF THE CURRENCY FROM MODIFYING THAT STANDARD.  P. 138. 

400 F.2D 548, AFFIRMED. 

MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. 

IN THESE CASES WE ARE CALLED UPON TO CONSTRUE SEC. 7 OF THE MCFADDEN
ACT OF 1927, 44 STAT. 1228, AS AMENDED, 12 U.S.C. 36, AS IT RELATES TO
THE DEFINITION OF A BRANCH BANK FOR THE PURPOSE OF DETERMINING THE
SCOPE OF BRANCH BANKING AVAILABLE TO A NATIONAL BANK IN A STATE THAT
PROHIBITS BRANCHES FOR STATE BANKS. 

12 U.S.C. 36(F) PROVIDES IN PERTINENT PART: 

"(F) THE TERM 'BRANCH' AS USED IN THIS SECTION SHALL BE HELD TO

  INCLUDE ANY BRANCH BANK, BRANCH OFFICE, BRANCH AGENCY, ADDITIONAL

  OFFICE, OR ANY BRANCH PLACE OF BUSINESS . . . AT WHICH DEPOSITS

  ARE RECEIVED, OR CHECKS PAID, OR MONEY LENT." 

FLORIDA PROHIBITS ALL BRANCH BANKING BY STATE CHARTERED BANKS; BY
STATUTE A FLORIDA BANK MAY "HAVE ONLY ONE PLACE OF DOING BUSINESS," AND
ALL THE BUSINESS OF THE BANK IS TO BE CARRIED ON AT THAT PLACE "AND NOT
ELSEWHERE."  /1/  THE ISSUE MUST BE RESOLVED BY DETERMINING WHAT
CONSTITUTES A "BRANCH"  OR "ADDITIONAL OFFICE"; THERE IS A THRESHOLD
QUESTION OF THE EXTENT TO WHICH THIS IS GOVERNED BY FEDERAL LAW. 

THE FIRST NATIONAL BANK IN PLANT CITY, FLORIDA, IS A NATIONAL
BANKING ASSOCIATION ORGANIZED AND OPERATED PURSUANT TO THE NATIONAL
BANK ACT, 12 U.S.C. 21 ET SEQ.; IT SOUGHT AND RECEIVED FROM THE UNITED
STATES COMPTROLLER OF THE CURRENCY PERMISSION TO OPERATE TWO SERVICES
FOR THE CONVENIENCE OF CUSTOMERS; ONE WAS AN ARMORED CAR MESSENGER
SERVICE AND THE OTHER AN OFF-PREMISES RECEPTACLE FOR THE RECEIPT OF
PACKAGES CONTAINING CASH OR CHECKS FOR DEPOSIT.  THE COMPTROLLER'S
LETTER AUTHORIZING THE ARMORED CAR MESSENGER SERVICE RELIED UPON
PARAGRAPH 7490 OF THE COMPTROLLER'S MANUAL FOR NATIONAL BANKS, /2/  A
RELATIVELY RECENT RULING WHICH SPECIFICALLY AUTHORIZES SUCH A SERVICE. 
A SECOND LETTER AUTHORIZING CONSTRUCTION OF AN OFF-PREMISES RECEPTACLE
AUTHORIZED SUCH A SERVICE "AS AN INCIDENT TO"  THE BANK'S ORDINARY
BUSINESS.  BOTH LETTERS CONTAINED EXPLICIT INSTRUCTIONS TO FIRST
NATIONAL DESIGNED TO INSURE THAT DEPOSITS SO RECEIVED WOULD NOT BECOME
BANK LIABILITIES UNTIL ACTUALLY IN THE HANDS OF THE BANK TELLER AT THE
CHARTERED OFFICE OR REGULAR "BANKING HOUSE"; AND THAT CHECKS CASHED FOR
CUSTOMERS WOULD BE DEEMED PAID AT THE BANK WHEN THE CASH WAS HANDED TO
THE MESSENGER, NOT WHEN THE CASH WAS DELIVERED TO THE CUSTOMER BY THE
ARMORED CAR TELLER. 

RELYING ON THESE LETTERS, FIRST NATIONAL OFFERED AN ARMORED CAR
SERVICE AND A SECURED RECEPTACLE FOR RECEIPT OF MONIES INTENDED AS
DEPOSITS.  THE BANK ADVERTISED "FULL SERVICE BANKING AT YOUR DOORSTEP .
. . " AND A "MOBILE DRIVE-IN . . . WHERE CUSTOMERS MAY BE SERVED . . .
."  A MORE DETAILED EXAMINATION OF THE SERVICES SHOWS THAT CUSTOMERS
HAVING AN ACCOUNT WITH FIRST NATIONAL COULD, UPON SIGNING A
"COMPREHENSIVE DUAL CONTROL CONTRACT,"  /3/  ARRANGE TO HAVE THE
ARMORED CAR CALL AT THEIR PLACE OF BUSINESS TO PICK UP CASH AND CHECKS
FOR DEPOSIT, OR TO BRING CASH TO THEM IN EXCHANGE FOR CHECKS DELIVERED
TO THE ARMORED CAR TELLER.  THE CONTRACT PROVIDED THAT IN EACH
SITUATION THE BANK'S ARMORED CAR MESSENGER WOULD BE THE AGENT OF THE
CUSTOMER.  ADDITIONALLY, PROFFERED DEPOSITS WERE ACCOMPANIED BY A
TRANSMITTAL SLIP UPON WHICH THE CUSTOMER ITEMIZED THE FUNDS BEING
DEPOSITED IN THE SAME MANNER AS WITH DEPOSITS MADE AT THE CHARTERED
OFFICE OF THE BANK.  THE TRANSMITTAL SLIP CONTAINED A "CONTRACT" WHICH
PROVIDED THAT IN THIS OFF-PREMISES TRANSACTION THE BANK WAS THE AGENT
OF THE CUSTOMER, AND THAT "THE TRANSMITTAL OF SAID CURRENCY, COIN AND
CHECKS, SHALL NOT BE DEEMED TO BE A DEPOSIT UNTIL DELIVERED INTO THE
HANDS OF THE BANK'S TELLERS AT THE SAID BANKING HOUSE."  /4/  SUMS OF
CASH FOR TRANSMISSION TO THE CUSTOMER WERE ACCOMPANIED BY A CHARGE SLIP
INDICATING THAT THE CUSTOMER'S ACCOUNT HAD BEEN CHARGED FOR THE AMOUNT
OF THE ORDER. 

THE ARMORED CAR WAS OWNED AND CONTROLLED BY THE BANK; THE TELLER AND
DRIVER-GUARD IN THE CAR WERE BANK EMPLOYEES.  THE BANK PAID THE COST OF
ARMORED CAR OPERATIONS AND ASSUMED COMPLETE RESPONSIBILITY FOR THE
MONIES, CHECKS, AND DEPOSITS DURING TRANSIT BY MEANS OF AN INSURANCE
POLICY BOUGHT AND PAID FOR BY IT TO PROTECT THE CUSTOMER AND THE BANK. 
THE ARMORED CAR SERVICE OPERATED SIX DAYS PER WEEK IN PLANT CITY AND
THE SURROUNDING TRADE AREA IN HILLSBOROUGH AND POLK COUNTIES.  THE
ARMORED CAR HAD A PLATE GLASS WINDOW, A SLIDING DRAWER, AND A COUNTER
ON ONE SIDE WHERE CUSTOMERS MIGHT BE SERVED.  THE TRUCK BORE THE NAME
OF THE BANK AND HAD TWO-WAY RADIOPHONE COMMUNICATION WITH THE BANK. 
ALL MOVEMENTS AND ROUTING OF THE ARMORED CAR WERE DIRECTED BY THE
BANK.  FIRST NATIONAL ARMORED CAR WERE DIRECTED BY THE BANK.  FIRST
NATIONAL HANDLED ABOUT $1,000,000 PER WEEK THROUGH THE ARMORED CAR. 

THE STATIONARY OFF-PREMISES RECEPTACLE FOR RECEIPT OF MONIES
INTENDED FOR DEPOSIT WAS LOCATED IN A SHOPPING CENTER ONE MILE FROM
FIRST NATIONAL'S BANKING HOUSE IN A SPACE LEASED BY THE BANK.  THE
FACILITY CONSISTED OF A SECURED RECEPTACLE FOR MONIES AND NIGHT BAGS,
TOGETHER WITH A WRITING TABLE SUPPLIED WITH ENVELOPES AND TRANSMITTAL
SLIPS IDENTICAL TO THOSE USED BY THE ARMORED CAR MESSENGER SERVICE. 
THE ENVELOPES RECITED THAT THE FUNDS TRANSPORTED WERE ACCEPTED IN
ACCORDANCE WITH THE CONTRACT PRINTED ON THE TRANSMITTAL SLIP.  A SIGN
AT THE RECEPTACLE RECITED THAT THE MESSENGER WHO COLLECTED THE FUNDS
ACTED AS AGENT FOR THE CUSTOMER, THAT FUNDS WOULD NOT BE DEEMED TO HAVE
BEEN DEPOSITED UNTIL DELIVERED AT THE BANK'S PREMISES, AND THAT
INSURANCE ON THE FUNDS WAS PROVIDED BY THE BANK.  CUSTOMERS MAINTAINING
AN ACCOUNT WITH THE BANK WHO HAD SIGNED THE COMPREHENSIVE DUAL CONTROL
CONTRACT WERE ISSUED A KEY TO OPEN THE OFF-PREMISES DEPOSITORY TO DROP
OFF THE NIGHT POUCHES IN THE RECEPTACLE.  THE ARMORED CAR SERVICED THE
RECEPTACLE DAILY.  THE ARMORED CAR TELLER, UPON MAKING PICKUPS OF SUCH
NIGHT POUCHES, PROMPTLY IDENTIFIED ALL MONIES AND OTHER ITEMS PLACED IN
THE DEPOSITORY AND IMMEDIATELY RECORDED THEM BY THE DEPOSITOR'S
NUMBER.  THE DRIVER-GUARD VERIFIED ALL ITEMS COLLECTED BY THE TELLER
AND SIGNED THE WRITTEN BANK RECORD IDENTIFYING THE MONIES OBTAINED AT
THE STATIONARY DEPOSITORY. 

ON SEPTEMBER 28, 1966, THE COMPTROLLER OF THE STATE OF FLORIDA,
RESPONDENT HEREIN, ADDRESSED A LETTER TO FIRST NATIONAL ADVISING IT
THAT THE PROPOSED DEPOSITORY THEN UNDER CONSTRUCTION AND THE PROVISION
OF AN ARMORED CAR MESSENGER SERVICE WOULD EACH VIOLATE THE PROHIBITION
UNDER FLORIDA LAW AGAINST BRANCH BANKING.  THE LETTER REQUESTED THAT
FIRST NATIONAL CEASE AND DESIST ALL SUCH OPERATIONS. 

FIRST NATIONAL THEN SUED IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA SEEKING DECLARATORY AND INJUNCTIVE RELIEF
AGAINST RESPONDENT.  THE UNITED STATES COMPTROLLER INTERVENED AS
PLAINTIFF ON THE SIDE OF FIRST NATIONAL; SEVERAL STATE BANKS INTERVENED
TO SUPPORT THE FLORIDA COMPTROLLER.  THE DISTRICT COURT GRANTED
JUDGMENT FOR PETITIONERS, 274 F.SUPP.  449 (D.C.N.D. FLA. 1967).  THE
COURT OF APPEALS REVERSED, 400 F.2D 548 (C.A. 5TH CIR. 1968).  WE
AFFIRM THE COURT OF APPEALS. 

FEDERAL STATUTE AND POLICY 

THE CONDITIONS UNDER WHICH NATIONAL BANKS MAY ESTABLISH BRANCHES ARE
EMBODIED IN SEC. 7 OF THE MCFADDEN ACT, 44 STAT. 1228, AS AMENDED,
CODIFIED IN 12 U.S.C. 36.  ONE SUCH CONDITION IS THAT A "BRANCH" MAY BE
ESTABLISHED ONLY WHEN, WHERE, AND HOW STATE LAW WOULD AUTHORIZE A STATE
BANK TO ESTABLISH AND OPERATE SUCH A BRANCH, 12 U.S.C. 36(C).  /5/
FIRST NATIONAL BANK OF LOGAN V. WALKER BANK & TRUST CO., 385 U.S. 252
(1966). 

WE HAVE NOTED THAT THE STATE OF FLORIDA PERMITS NO BRANCH BANKING
UNDER A STATUTE PROVIDING THAT BANKS ARE TO "HAVE ONLY ONE PLACE OF
DOING BUSINESS"; THE BUSINESS OF THE BANK MAY BE TRANSACTED AT THAT
PLACE "AND NOT ELSEWHERE."  /6/  THE PARTIES AGREE GENERALLY THAT THE
MCFADDEN ACT PERMITS NATIONAL BANKS TO BRANCH IF AND ONLY IF THE HOST
STATE WOULD PERMIT ONE OF ITS OWN BANKS TO BRANCH; THE FLORIDA BANK
COMPTROLLER INSISTS THAT THE STATE OF FLORIDA UNEQUIVOCALLY FORBIDS OFF
PREMISES BANKING OF ANY KIND.  THUS THE LINES ARE CLEARLY DRAWN; THE
QUESTION PRESENTED IS WHETHER THE ACTIVITIES OF FIRST NATIONAL
AUTHORIZED BY THE UNITED STATES COMPTROLLER ARE BRANCH BANKING. 

AT THE OUTSET WE NOTE THAT, WHILE CONGRESS HAS ABSOLUTE AUTHORITY
OVER NATIONAL BANKS, THE FEDERAL STATUTE HAS INCORPORATED BY REFERENCE
THE LIMITATIONS WHICH STATE LAW PLACES ON BRANCH BANKING ACTIVITIES BY
STATE BANKS.  CONGRESS HAS DELIBERATELY SETTLED UPON A POLICY INTENDED
TO FOSTER "COMPETITIVE EQUALITY."  WALKER BANK, 385 U.S.,AT 261.  STATE
LAW HAS BEEN UTILIZED BY CONGRESS TO PROVIDE CERTAIN GUIDELINES TO
IMPLEMENT ITS LEGISLATIVE POLICY. 

WE NEED NOT REVIEW THE LEGISLATIVE HISTORY OF THE MCFADDEN ACT AND
PRIOR NATIONAL BANK LEGISLATION AS IT RELATES TO THIS PROBLEM; THAT
TASK WAS PERFORMED BY MR. JUSTICE CLARK IN WALKER BANK, SUPRA, WHERE A
UNANIMOUS COURT NOTED THAT THE MCFADDEN ACT WAS A RESPONSE TO THE
COMPETITIVE TENSIONS INHERENT IN A DUAL BANKING STRUCTURE WHERE STATE
AND NATIONAL BANKS COEXIST IN THE SAME AREA.  THAT ACT REFLECTS THE
CONGRESSIONAL CONCERN THAT NEITHER SYSTEM HAVE ADVANTAGES OVER THE
OTHER IN THE USE OF BRANCH BANKING.  A HOUSE REPORT SHOWS THAT IN 1926
THERE WAS CONGRESSIONAL CONCERN TO PROTECT NATIONAL BANKS FROM THE
UNRESTRICTED BRANCH BANK COMPETITION OF STATE BANKS: 

     "THE PRESENT SITUATION IS INTOLERABLE TO THE NATIONAL BANKING

  SYSTEM.  THE BILL PROPOSES THE ONLY PRACTICABLE SOLUTION BY

  STOPPING THE FURTHER EXTENSION OF STATE-WIDE BRANCH BANKING IN

  THE FEDERAL RESERVE SYSTEM BY STATE MEMBER BANKS AND BY

  PERMITTING NATIONAL BANKS TO HAVE BRANCHES IN THOSE CITIES WHERE

STATE BANKS ARE ALLOWED TO HAVE THEM UNDER STATE LAWS."  H.R. REP. NO.
83,

  69TH CONG., 1ST SESS., 7 (1926).  THE BILL TO WHICH THIS REPORT
WAS ADDRESSED FAILED TO PASS IN THE SENATE.  IN TRACING THE LEGISLATIVE
HISTORY OF THE BILL WHICH PASSED THE FOLLOWING YEAR, THIS COURT IN
WALKER BANK, SUPRA, OBSERVED: 

     "THE INTENT OF THE CONGRESS TO LEAVE THE QUESTION OF THE

  DESIRABILITY OF BRANCH BANKING UP TO THE STATES IS INDICATED BY

  THE FACT THAT THE SENATE STRUCK FROM THE HOUSE BILL THE TIME

LIMITATION, THUS PERMITTING A SUBSEQUENT CHANGE IN STATE LAW TO

  HAVE A CORRESPONDING EFFECT ON THE AUTHORITY OF NATIONAL BANKS TO

  ENGAGE IN BRANCHING.  THE SENATE REPORT CONCLUDED THAT THE ACT

  SHOULD PERMIT 'NATIONAL BANKS TO HAVE BRANCHES IN THOSE CITIES

  WHERE STATE BANKS ARE ALLOWED TO HAVE THEM UNDER STATE LAWS.'" 

  385 U.S.,AT 258, QUOTING FROM S. REP. NO. 473, 69TH CONG., 1ST

  SESS., 14 (1926). 

AT THE TIME OF ITS ENACTMENT INTO LAW, REPRESENTATIVE MCFADDEN
STATED THAT: 

     "AS A RESULT OF THE PASSAGE OF THIS ACT, THE NATIONAL BANK ACT

  HAS BEEN SO AMENDED THAT NATIONAL BANKS ARE ABLE TO MEET THE

  NEEDS OF MODERN INDUSTRY AND COMMERCE AND COMPETITIVE EQUALITY

  HAS BEEN ESTABLISHED . . . ."  68 CONG.REC.  5815 (1927). 

WHEN THE ECONOMIC DEPRESSION OF THE 1930'S BROUGHT ON WIDESPREAD
BANK FAILURES, CONGRESS RESPONDED BY AMENDING THE MCFADDEN ACT WITH THE
PASSAGE OF THE BANKING ACT OF 1933, WHICH FURTHER STRENGTHENED THE
POLICY OF COMPETITIVE EQUALITY.  SOME MEMBERS ARGUED THAT BANK FAILURES
WERE DUE TO THE UNDERCAPITALIZATION OF SMALL RURAL BANKS AND SOUGHT TO
AUTHORIZE NATIONAL BANKS TO ENGAGE IN BRANCH BANKING WITHOUT REGARD TO
STATE LAW; BUT THAT APPROACH WAS REJECTED.  AS FINALLY PASSED, THE ACT
WAS REPORTED TO THE HOUSE BY ONE OF THE MEMBERS OF THE CONFERENCE
COMMITTEE, REPRESENTATIVE LUCE, WITH THIS STATEMENT: 

     "IN THE CONTROVERSY OVER THE RESPECTIVE MERITS OF WHAT ARE

  KNOWN AS 'UNIT BANKING' AND 'BRANCH BANKING' . . . BRANCH BANKING

  HAS BEEN STEADILY GAINING IN FAVOR.  IT IS NOT, HOWEVER, HERE

  PROPOSED TO GIVE THE ADVOCATES OF BRANCH BANKING ANY ADVANTAGE. 

 WE DO NOT GO AN INCH BEYOND SAYING THAT THE TWO IDEAS SHALL

  COMPETE ON EQUAL TERMS AND ONLY WHERE THE STATES MAKE THE

  COMPETITION POSSIBLE BY LETTING THEIR OWN INSTITUTIONS HAVE

  BRANCHES."  385 U.S.,AT 260, QUOTING FROM 77 CONG.REC.  5896

  (1933). 

THE POLICY OF COMPETITIVE EQUALITY IS THEREFORE FIRMLY EMBEDDED IN THE
STATUTES GOVERNING THE NATIONAL BANKING SYSTEM.  THE MECHANISM OF
REFERRING TO STATE LAW IS SIMPLY ONE DESIGNED TO IMPLEMENT THAT
CONGRESSIONAL INTENT AND BUILD INTO THE FEDERAL STATUTE A SELF
EXECUTING PROVISION TO ACCOMMONDATE TO CHANGES IN STATE REGULATION. 

WE REJECT THE CONTENTION MADE BY AMICUS CURIAE NATIONAL ASSOCIATION
OF SUPERVISORS OF STATE BANKS TO THE EFFECT THAT STATE LAW DEFINITIONS
OF WHAT CONSTITUTES "BRANCH BANKING" MUST CONTROL THE CONTENT OF THE
FEDERAL DEFINITION OF SEC. 36(F).  /7/  ADMITTEDLY, STATE LAW COMES
INTO PLAY IN DECIDING HOW, WHERE, AND WHEN BRANCH BANKS MAY BE
OPERATED, WALKER BANK, SUPRA, FOR IN SEC. 36(C) CONGRESS ENTRUSTED TO
THE STATES THE REGULATION OF BRANCHING AS CONGRESS THEN CONCEIVED IT.
BUT TO ALLOW THE STATES TO DEFINE THE CONTENT OF THE TERM "BRANCH"
WOULD MAKE THEM THE SOLE JUDGES OF THEIR OWN POWERS.  CONGRESS DID NOT
INTEND SUCH AN IMPROBABLE RESULT, AS APPEARS FROM THE INCLUSION IN SEC.
36 OF A GENERAL DEFINITION OF "BRANCH."  ON THIS POINT THE LANGUAGE OF
THE COURT OF APPEALS PERHAPS OVERSTATED THE RELATION OF STATE LAW TO
THE PROBLEM, SINCE THE THRESHOLD QUESTION IS TO BE DETERMINED AS A
MATTER OF FEDERAL LAW, HAVING IN MIND THE CONGRESSIONAL INTENT THAT SO
FAR AS BRANCH BANKING IS CONCERNED "THE TWO IDEAS SHALL COMPETE ON
EQUAL TERMS AND ONLY WHERE THE STATES (ALLOW) THEIR OWN INSTITUTIONS
(TO) HAVE BRANCHES."  IN SHORT, THE DEFINITION OF "BRANCH" IN SEC.
36(F) MUST NOT BE GIVEN A RESTRICTIVE MEANING WHICH WOULD FRUSTRATE THE
CONGRESSIONAL INTENT THIS COURT FOUND TO BE PLAIN IN WALKER BANK,
SUPRA.  /8/     FEDERAL DEFINITION OF BRANCH BANK 

AGAINST THIS BACKGROUND, WE TURN TO THE QUESTION WHETHER THE OFF
PREMISES BUSINESS ACTIVITIES CONDUCTED BY FIRST NATIONAL AMOUNTED TO
"BRANCH" BANKING WITHIN THE MEANING OF THE MCFADDEN ACT.  SINCE
NATIONAL BANKS ARE "NECESSARILY SUBJECT TO THE PARAMOUNT AUTHORITY OF
THE UNITED STATES," FIRST NATIONAL BANK IN ST. LOUIS V. MISSOURI, 263
U.S. 640, 656 (1924), WE CONSULT THAT PART OF THE MCFADDEN ACT THAT
DEFINES THE TERM "BRANCH."  12 U.S.C. 36(F) PROVIDES: 

    "(F) THE TERM 'BRANCH' AS USED IN THIS SECTION SHALL BE HELD TO

  INCLUDE ANY BRANCH BANK, BRANCH OFFICE, BRANCH AGENCY, ADDITIONAL

  OFFICE, OR ANY BRANCH PLACE OF BUSINESS . . . AT WHICH DEPOSITS

  ARE RECEIVED, OR CHECKS PAID, OR MONEY LENT." 

ALTHOUGH THE DEFINITION MAY NOT BE A MODEL OF PRECISION, IN PART DUE
TO ITS CIRCULAR ASPECT, IT DEFINES THE MINIMUM CONTENT OF THE TERM
"BRANCH"; BY USE OF THE WORD "INCLUDE" THE DEFINITION SUGGESTS A
CALCULATED INDEFINITENESS WITH RESPECT TO THE OUTER LIMITS OF THE
TERM.  HOWEVER, THE TERM "BRANCH BANK" AT THE VERY LEAST INCLUDES ANY
PLACE FOR RECEIVING DEPOSITS OR PAYING CHECKS OR LENDING MONEY APART
FROM THE CHARTERED PREMISES; IT MAY INCLUDE MORE.  IT SHOULD BE
EMPLHASIZED THAT, SINCE SEC. 36(F) IS PHRASED IN THE DISJUNCTIVE, THE
OFFERING OF ANY ONE OF THE THREE SERVICES MENTIONED IN THAT DEFINITION
WILL PROVIDE THE BASIS FOR FINDING THAT "BRANCH" BANKING IS TAKING
PLACE.  THUS NOT ONLY THE TAKING OF DEPOSITS BUT ALSO THE PAYING OF
CHECKS OR THE LENDING OF MONEY COULD EQUALLY WELL PROVIDE THE BASIS FOR
SUCH A FINDING.  ALTHOUGH THE DISTRICT COURT BRIEFLY DISCUSSED THE
POSSIBILITY THAT CHECKS WERE BEING PAID, WE CONFINE OURSELVES TO THE
QUESTION OF WHETHER DEPOSITS WERE RECEIVED.  SPECIFICALLY, WE MUST
RESOLVE THE QUESTION WHETHER THE MOBILE ARMORED CAR SERVICE AND
STATIONARY DEPOSIT RECEPTACLE SINGLY OR TOGETHER FALL WITHIN THE AMBIT
OF THAT SECTION.  AS TO THE RECEIVING OF DEPOSITS, THE FUNCTIONS OF THE
TWO FACILITIES ARE ESSENTIALLY THE SAME, HENCE THEY MAY BE CONSIDERED
TOGETHER. 

FIRST NATIONAL AND THE COMPTROLLER OF THE CURRENCY URGE THAT THE
CHALLENGED ACTIVITY DOES NOT AMOUNT TO BRANCH BANKING UNDER SEC.
36(F).  FIRST NATIONAL RELIES HEAVILY, IF INDEED NOT ENTIRELY, UPON
CAREFULLY DRAWN CONTRACTS WITH ITS CUSTOMERS WHO USE ARMORED CAR OR
DEPOSIT RECEPTACLE SERVICES.  THE BANK URGES THAT, "DEPOSIT" BEING A
WORD OF ART, THE DETERMINATION OF WHEN A DEPOSIT IS MADE IS NOT A
CASUAL ONE INASMUCH AS THAT DETERMINATION FIXES IMPORTANT LEGAL
RELATIONSHIPS OF THE PARTIES. 

THE BANK ALSO URGES THAT CREATION OF A DEPOSIT BEING PURELY A MATTER
OF INTENT, THE ISSUE IS GOVERNED EXCLUSIVELY BY THE PRIVATE CONTRACT. 
SINCE THESE CONTRACTS MUST BE INTERPRETED UNDER STATE LAW, THE ARGUMENT
RUNS, NO "DEPOSIT" IS ACTUALLY RECEIVED AS SUCH UNTIL MONIES DELIVERED
TO THE ARMORED CAR OR THE RECEPTACLE ARE PHYSICALLY DELIVERED INTO THE
HANDS OF A BANK TELLER AT THE CHARTERED PREMISES.  UNTIL SUCH TIME THE
BANK MAY NOT, UNDER THE CONTRACTS, BE HELD TO ACCOUNT FOR THE
CUSTOMER'S FUNDS. 

WE HAVE NO DIFFICULTY ACCEPTING THE BANK'S ARGUMENT THAT THE DEBTOR
CREDITOR RELATIONSHIP IS A CREATURE OF CONTRACT AND THAT PARTIES CAN
AGREE THAT UNTIL MONIES ARE PHYSICALLY DELIVERED TO THE BANK NO DEPOSIT
WILL BE CREDITED TO THE CUSTOMER'S ACCOUNT.  /9/  WE ARE SATISFIED,
HOWEVER, THAT THE CONTRACTS HAVE NO SIGNIFICANT PURPOSE OTHER THAN TO
REMOVE THE POSSIBILITY THAT THE MONIES RECEIVED WILL BECOME "DEPOSITS"
IN THE TECHNICAL AND LEGAL SENSE UNTIL ACTUALLY DELIVERED TO THE
CHARTERED PREMISES OF THE BANK. 

WE DO NOT CHALLENGE THE RIGHT OF THE CONTRACTING PARTIES TO FIX
RIGHTS AND RISKS AS BETWEEN THEMSELVES; NOTHING IN THE LAW PRECLUDES
THE PARTIES FROM AGREEING, FOR EXAMPLE, THAT THE BANK DOSE NOT ASSUME
THE STATUS OF BAILEE, WITH LIABILITY FOR LOSS OF MONEY IN TRANSIT.  BUT
WHILE THE CONTRACTING PARTIES ARE FREE TO ARRANGE THEIR PRIVATE RIGHTS
AND LIABILITIES AS THEY SEE FIT, IT DOES NOT FOLLOW THAT PRIVATE
CONTRACTUAL ARRANGEMENTS, BINDING ON THE PARTIES UNDER STATE LAW,
DETERMINE THE MEANING OF THE LANGUAGE OR THE REACH OF SEC. 36(F). 

BECAUSE THE PURPOSE OF THE STATUTE IS TO MAINTAIN COMPETITIVE
EQUALITY, IT IS RELEVANT IN CONSTRUING "BRANCH" TO CONSIDER, NOT MERELY
THE CONTRACTUAL RIGHTS AND LIABILITIES CREATED BY THE TRANSACTION, BUT
ALL THOSE ASPECTS OF THE TRANSACTIONS THAT MIGHT GIVE THE BANK AN
ADVANTAGE IN ITS COMPETITION FOR CUSTOMERS.  UNQUESTIONABLY, A
COMPETITIVE ADVANTAGE ACCRUES TO A BANK THAT PROVIDES THE SERVICE OF
RECEIVING MONEY FOR DEPOSIT AT A PLACE AWAY FROM ITS MAIN OFFICE; THE
CONVENIENCE TO THE CUSTOMER IS UNRELATED TO WHETHER THE RELATIONSHIP OF
DEBTOR AND CREDITOR IS ESTABLISHED AT THE MOMENT OF RECEIPT OR SOMEWHAT
LATER. 

WE NEED NOT CHARACTERIZE THE CONTRACTS AS A SHAM OR SUBTERFUGE IN
ORDER TO CONCLUDE THAT THE CONDUCT OF THE PARTIES AND THE NATURE OF
THEIR RELATIONS BRING FIRST NATIONAL'S CHALLENGED ACTIVITIES WITHIN THE
FEDERAL DEFINITION OF BRANCH BANKING.  HERE, PENETRATING THE FORM OF
THE CONTRACTS TO THE UNDERLYING SUBSTANCE OF THE TRANSACTION, WE ARE
SATISFIED THAT AT THE TIME A CUSTOMER DELIVERS A SUM OF MONEY EITHER TO
THE ARMORED TRUCK OR THE STATIONARY RECEPTACLE, THE BANK HAS, FOR ALL
PURPOSES CONTEMPLATED BY CONGRESS IN SEC. 36(F), RECEIVED A DEPOSIT. 
THE MONEY IS GIVEN AND RECEIVED FOR DEPOSIT EVEN THOUGH THE PARTIES
HAVE AGREED THAT ITS TECHNICAL STATUS AS A "DEPOSIT" WHICH MAY BE DRAWN
ON IS TO REMAIN INCHOATE FOR THE BRIEF PERIOD OF TIME IT IS IN TRANSIT
TO THE CHARTERED BANK PREMISES.  THE INTENDED DEPOSITS ARE DELIVERED
AND RECEIVED AS PART OF A LARGE-SCALE CONTINUING MODE OF CONDUCTING THE
BANKING BUSINESS DESIGNED TO BRING BASIC BANK SERVICES TO THE
CUSTOMERS. 

SINCE THE PUTATIVE DEPOSITS ARE IN FACT "RECEIVED" BY A BANK
FACILITY APART FROM ITS CHARTERED PLACE OF BUSINESS, WE ARE COMPELLED,
IN CONSTRUING SEC. 36(F), TO VIEW THE PLACE OF DELIVERY OF THE
CUSTOMER'S CASH AND CHECKS ACCOMPANIED BY A DEPOSIT SLIP AS AN
"ADDITIONAL OFFICE, OR . . . BRANCH PLACE OF BUSINESS . . . AT WHICH
DEPOSITS ARE RECEIVED."  /10/ 

HERE WE ARE CONFRONTED BY A SYSTEMATIC ATTEMPT TO SECURE FOR
NATIONAL BANKS BRANCHING PRIVILEGES WHICH FLORIDA DENIES TO COMPETING
STATE BANKS.  THE UTILITY OF THE ARMORED CAR SERVICE AND DEPOSIT
RECEPTACLE ARE OBVIOUS; MANY STATES PERMIT STATE CHARTERED BANKS TO USE
THIS EMINENTLY SENSIBLE MODE OF OPERATIONS, BUT FLORIDA'S POLICY IS NOT
OPEN TO JUDICIAL REVIEW ANY MORE THAN IS THE CONGRESSIONAL POLICY OF
"COMPETITIVE EQUALITY WITH ITS DEFERENCE TO STATE STANDARDS OPEN TO
MODIFICATION BY THE COMPTROLLER OF THE CURRENCY.  /11/

              AFFIRMED. 

/0/  TOGETHER WITH NO. 34, CAMP, COMPTROLLER OF THE CURRENCY V.
DICKINSON, COMPTROLLER OF FLORIDA, ET AL., ALSO ON WRIT OF CERTIORARI
TO THE SAME COURT. 

/1/  FLORIDA STAT. SEC. 659.06(1)(A) (1965) PROVIDES: 

"659.06 PLACE OF TRANSACTING BUSINESS; SCHOOL SAVINGS; DRIVE-IN
FACILITIES.-- 

"(1)(A) ANY BANK OR TRUST COMPANY SHALL HAVE ONLY ONE PLACE OF DOING
BUSINESS, WHICH SHALL BE LOCATED IN THE COMMUNITY SPECIFIED IN ITS
ORIGINAL ARTICLES OF INCORPORATION, AND THE BUSINESS OF THE BANK OR
TRUST COMPANY SHALL BE TRANSACTED AT ITS BANKING HOUSE SO LOCATED IN
SAID COMMUNITY SPECIFIED, AND NOT ELSEWHERE . . . .

        .          .  .          , 

"(2) WITH THE PRIOR WRITTEN APPROVAL OF THE COMMISSIONER A BANK MAY
OPERATE A DRIVE-IN FACILITY OR WALK-UP FACILITY PROVIDING ONE OR MORE
TELLERS TO SERVE PATRONS IN VEHICLES AND ON FOOT.  IT SHALL NOT BE
NECESSARY THAT SUCH FACILITY BE A PART OF OR PHYSICALLY CONNECTED TO
THE MAIN BANKING ROOM OR BUILDING OF THE BANK IF THE FACILITY IS
LOCATED ON THE PROPERTY ON WHICH THE MAIN BANKING HOUSE IS SITUATED
ONLY BY A STREET, WALKWAY OR ALLEYWAY SHALL, FOR THE PURPOSES OF THIS
SUBSECTION, BE DEEMED CONTIGUOUS TO THE PROPERTY ON WHICH THE MAIN
BANKING HOUSE IS SITUATED. 

"THE OPERATION OF ANY DRIVE-IN OR WALK-UP FACILITY WHICH IS NOT
LOCATED ON THE PROPERTY ON WHICH THE MAIN BANKING HOUSE IS SITUATED OR
ON PROPERTY CONTIGUOUS THERETO SHALL CONSTITUTE A VIOLATION OF
SUBSECTION (1); PROVIDED, HOWEVER, SUBSECTION (2) SHALL NOT APPLY TO
ANY FACILITIES EXISTING ON OR PRIOR TO JANUARY 1, 1965." 

/2/  COMPTROLLER'S MANUAL FOR NATIONAL BANKS PARA. 7490. 

"MESSENGER SERVICE 

"TO MEET THE REQUIREMENTS OF ITS CUSTOMERS, A NATIONAL BANK MAY
PROVIDE MESSENGER SERVICE BY MEANS OF AN ARMORED CAR OR OTHERWISE,
PURSUANT TO AN AGREEMENT WHEREIN IT IS SPECIFIED THAT THE MESSENGER IS
THE AGENT OF THE CUSTOMER RATHER THAN OF THE BANK.  DEPOSITS COLLECTED
UNDER THIS ARRANGEMENT ARE NOT CONSIDERED AS HAVING BEEN RECEIVED BY
THE BANK UNTIL THEY ARE ACTUALLY DELIVERED TO THE TELLER AT THE BANK'S
PREMISES.  SIMILARLY, A CHECK IS CONSIDERED AS HAVING BEEN PAID AT THE
BANK WHEN THE MONEY IS HANDED TO THE MESSENGER AS AGENT FOR THE
CUSTOMER." 

/3/  "COMPREHENSIVE DUAL CONTROL CONTRACT 

"AS AGENT FOR THE UNDERSIGNED DEPOSITOR, THE FIRST NATIONAL BANK
MESSENGER WILL TRANSPORT MONIES OF THE DEPOSITOR TO AND FROM THE
BANKING HOUSE. 

"UNDER THE COMPREHENSIVE DUAL CONTROL CONTRACT, ALL MONIES,
TRANSPORTED SOLELY IN PADLOCKED MONEY BAGS FURNISHED BY BANK, SHALL BE
OPENED ONLY UNDER THE DUAL CONTROL OF TWO BANK'S TELLERS.  FOR THIS
PURPOSE, BANK WILL RETAIN A PASS KEY FOR DEPOSITOR'S BAGS); A KEY FOR
EACH BAG WILL BE FURNISHED DEPOSITOR.  THE DEPOSITOR EXPRESSLY
AUTHORIZES THE SERVICE DESCRIBED AND AGREES TO ACCEPT THE BANK'S COUNT
OF MONIES AS FINAL. 

"THE FIRST NATIONAL BANK IN PLANT CITY MAINTAINS HAZARD INSURANCE
COVERING HOLDUP, EMPLOYEE FIDELITY, ETC., FOR THE BENEFIT OF THE
DEPOSITOR FOR ALL AMOUNTS DELIVERED TO BANK'S MESSENGER FOR DELIVERY TO
BANK AND FOR ALL AMOUNTS REQUISITIONED BY DEPOSITOR FOR DELIVERY FROM
BANK TO DEPOSITOR.  UNLESS OTHERWISE AUTHORIZED IN WRITING, ONLY THE
UNDERSIGNED SHALL BE PERMITTED TO RECEIPT THE BANK'S MESSENGER FOR
MONIES DELIVERED TO DEPOSITOR . . . ." 

/4/  CONTRACT 

"FIRST NATIONAL BANK, PLANT CITY, FLA., AS MESSENGER AND AGENT FOR
PRINCIPAL NAMED ON FRONT SIDE HEREOF, AGREES TO TRANSMIT THE CURRENCY,
COIN AND CHECKS DETAILED ON THE FRONT SIDE HEREOF TO THE BANK'S OFFICES
AT 302 WEST HAINES STREET, PLANT CITY, FLA. FOR DEPOSIT TO PRINCIPAL'S
ACCOUNT.  IT IS AGREED AND UNDERSTOOD BY PRINCIPAL AND THE BANK THAT IN
TRANSMITTING SAID CURRENCY, COIN AND CHECKS, THE BANK IS ACTING SOLELY
AS AGENT FOR SAID PRINCIPAL AND THAT THE TRANSMITTAL OF SAID CURRENCY,
COIN AND CHECKS, SHALL NOT BE DEEMED TO BE A DEPOSIT UNTIL DELIVERED
INTO THE HANDS OF THE BANK'S TELLERS AT THE SAID BANKING HOUSE. 

"THE BANK MAINTAINS HAZARD INSURANCE COVERING HOLDUP, EMPLOYEE
FIDELITY, ETC. FOR THE PROTECTION OF THE PRINCIPAL FOR ALL AMOUNTS AND
ITEMS DELIVERED TO THE BANK'S MESSENGER BY SAID PRINCIPAL." 

/5/  THE NATIONAL BANK ACT, 44 STAT. 1228, 12 U.S.C. 36(C)(1) AND
(2) PROVIDES: 

"(C) A NATIONAL BANKING ASSOCIATION MAY, WITH THE APPROVAL OF THE
COMPTROLLER OF THE CURRENCY, ESTABLISH AND OPERATE NEW BRANCHES:  (1)
WITHIN THE LIMITS OF THE CITY, TOWN OR VILLAGE IN WHICH SAID
ASSOCIATION IS SITUATED, IF SUCH ESTABLISHMENT AND OPERATION ARE AT THE
TIME EXPRESSLY AUTHORIZED TO STATE BANKS BY THE LAW OF THE STATE IN
QUESTION; AND (2) AT ANY POINT WITHIN THE STATE IN WHICH SAID
ASSOCIATION IS SITUATED, IF SUCH ESTABLISHMENT AND OEPRATION ARE AT THE
TIME AUTHORIZED TO STATE BANKS BY THE STATUTE LAW OF THE STATE IN
QUESTION BY LANGUAGE SPECIFICALLY GRANTING SUCH AUTHORITY AFFIRMATIVELY
AND NOT MERELY BY IMPLICATION OR RECOGNITION, AND SUBJECT TO THE
RESTRICTIONS AS TO LOCATION IMPOSED BY THE LAW OF THE STATE ON STATE
BANKS." 

/6/  SEE N. 1, SUPRA. 

/7/  IN THEIR BRIEFS BEFORE THIS COURT, THE LITIGANTS ARE ALL IN
AGREEMENT THAT FEDERAL LAW ALONE APPLIES TO RESOLVE THE THRESHOLD
QUESTION WHETHER THE CHALLENGED ACTIVITY FALLS WITHIN THE DEFINITION OF
"BRANCH."  REPLY BRIEF FOR THE COMPTROLLER OF THE CURRENCY 2;
RESPONDENTS' BRIEF 41, 44. 

/8/  REPRESENTATIVE MCFADDEN DESCRIBED THE DEFINITIONAL SECTION OF
THE ACT AS PROVIDING THAT: 

"ANY PLACE OUTSIDE OF OR AWAY FROM THE MAIN OFFICE WHERE THE BANK
CARRIES ON ITS BUSINESS OF RECEIVING DEPOSITS, PAYING CHECKS, LENDING
MONEY, OR TRANSACTING ANY BUSINESS CARRIED ON AT THE MAIN OFFICE, IS A
BRANCH."  68 CONG.REC.5816 (1927). 

/9/  5A A. MICHIE ON BANKS AND BANKING SECS. 4A, 5, 14, 15 AND 17
(1950); 10 AM.JR.2D BANKS 358 (1963); 9 C.J.S.BANKS AND BANKING 269
(1938). 

/10/  WE NEED NOT HERE TRY TO DRAW FINE DISTINCTIONS AROUND
RELATIVELY ISOLATED, SPORADIC, AND INCONSEQUENTIAL TRANSACTIONS WHERE A
BANK EMPLOYEE CARRIES CASH TO A CUSTOMER TO CASH A CHECK, OR SECURES A
SIGNATURE ON A NOTE IN EXCHANGE FOR A CHECK DELIVERED OFF PREMISES. 

/11/ IN 1963 COMPTROLLER SAXON, AUTHOR OF PARA. 7490 IN THE
COMPTROLLER'S MANUAL FOR NATIONAL BANKS, SUPRA, N. 2, DECLARED THAT
"(THE BRANCHING POWERS OF NATIONAL BANKS SHOULD, IN MY JUDGMENT, NOT BE
LIMITED ACCORDING TO THOSE POLICIES WHICH THE INDIVIDUAL STATES FIND
APPROPRIATE TO MEET THEIR LOCAL NEEDS THROUGH STATE-CHARTERED BANKS." 
SAXON, BRANCHING POWERS AND THE DUAL BANKING SYSTEM, 101 COMP. CURRENCY
ANN.REP.  316, 318 (1963). 

DURING THE COURSE OF THE CONGRESSIONAL DEBATES OVER WHAT BECAME THE
MCFADDEN ACT, REPRESENTATIVE STEVENSON REMARKED:     "(YOU HAVE
BRANCHES IN THE FEDERAL RESERVE SYSTEM ESTABLISHED BY THE DICTUM OF THE
COMPTROLLER OF THE CURRENCY, WHO HAS ASSUMED TO SAY THAT HE CAN ALLOW A
NATIONAL BANK TO ESTABLISH AS MANY AGENCIES FOR RECEIVING DEPOSITS AND
PAYING CHECKS AS HE SEES FIT . . . . I WILL SHOW PRESENTLY THAT WE CUT
THAT OUT, ROOT AND BRANCH."  66 CONG.REC.  1627. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IT WILL COME AS A SHOCK, WHERE COMMON SENSE IS THE GUIDE, TO LEARN
THAT AN ARMORED CAR PICKING UP MERCHANTS' CASH BOXES AND CHECKS IS A
BRANCH BANK.  CONCEIVABLY A BANK COULD USE AN ARMORED CAR AS A PLACE OF
BUSINESS BY STATIONING IT AT DESIGNATED PLACES DURING DESIGNATED HOURS
FOR OPENING ACCOUNTS, RECEIVING DEPOSITS, MAKING LOANS, AND THE LIKE. 
BUT NO ARMORED CAR WAS SO USED IN THESE CASES. 

FEDERAL LAW STATED IN THE MCFADDEN ACT, 12 U.S.C. 36(F), DEFINES
"BRANCH" AS ANY FACILITY "AT WHICH DEPOSITS ARE RECEIVED, OR CHECKS
PAID, OR MONEY LENT."  AND CONGRESS PROVIDED THAT NATIONAL BANKS MAY
ESTABLISH "BRANCHES" WHENEVER, WHEREVER, AND HOWEVER STATE BANKS MAY DO
SO.  FIRST NATIONAL BANK OF LOGAN V. WALKER BANK & TRUST CO., 385 U.S.
252, 261-262.  THE OPINION OF THE COURT LEAVES THE IMPRESSION THAT THE
MCFADDEN ACT CREATED "COMPETITIVE EQUALITY" BETWEEN NATIONAL AND STATE
BANKS ACROSS THE BOARD.  BUT AS WE STATED IN THE WALKER BANK CASE, THAT
ACT "INTENDED TO PLACE NATIONAL AND STATE BANKS ACROSS THE BOARD.  BUT
AS WE STATED IN THE WALKER BANK CASE, THAT ACT "INTENDED TO PLACE
NATIONAL AND STATE BANKS ON A BASIS OF 'COMPETITIVE EQUALITY'  INSOFAR
AS BRANCH BANKING WAS CONCERNED."  ID., AT 261.  THERE WAS NO OTHER OR
ADDITIONAL OVERRIDING PRINCIPLE OF "COMPETITIVE EQUALITY" THAT LIMITED
OFF-PREMISES SERVICES OF NATIONAL BANKS TO THOSE THAT STATE BANKS COULD
PROVIDE. 

AMONG THOSE OFF-PREMISES ACTIVITIES OF NATIONAL BANKS WAS THE
FURNISHING OF ARMORED CAR MESSENGER SERVICES, WHICH, WE ARE ADVISED BY
THE COMPTROLLER OF THE CURRENCY, ANTEDATED BY MANY YEARS THE 1927
MCFADDEN ACT.  ONE CAN READ THE LEGISLATIVE HISTORY OF THE ACT WITHOUT
FINDING ANY HINT THAT CONGRESS WAS PROVIDING "COMPETITIVE EQUALITY" AS
RESPECTS ARMORED CAR MESSENGER SERVICES. 

AS STATED BY THE DISTRICT COURT, "IF NO BRANCH IS INVOLVED HERE,
THERE IS NO REQUIREMENT THAT THE NATIONAL BANK'S PRACTICE MUST CONFORM
TO THAT OF THE STATE BANKS."  274 F.SUPP.  449, 453. 

THE SERVICES RENDERED IN THESE CASES WERE UNDERTAKEN ONLY AFTER
APPROVAL BY THE COMPTROLLER OF THE CURRENCY WHO ATTACHED A CONDITION
THAT "THE MESSENGER IS THE AGENT OF THE CUSTOMER RATHER THAN OF THE
BANK."  /1/  I THOUGHT IT WAS ELEMENTAL LAW THAT A BANK DEPOSIT CANNOT
ARISE WITHOUT SOME UNEQUIVOCAL ACT WHEREBY BOTH PARTIES EXPRESS THEIR
CONSENT TO THE CREATION OF THE STATUS OF DEBTOR AND CREDITOR.  THE
DISTRICT COURT, WHICH IS A MORE FAITHFUL EXPONENT OF LOCAL LAW THAN ARE
WE, SO RULED.  274 F.SUPP.,AT 454.  CERTAINLY THE COMPTROLLER, WHO IS
THE SUPERVISORY AGENT FOR POLICING SEC. 36, HAS SOME AUTHORITY TO
DEFINE "DEPOSITS" AS USED IN SEC. 36(F), AND THIS CASE AFFORDS NO
EXCUSE FOR DISPARAGING THE EXERCISE OF ADMINISTRATIVE DISCRETION IS
NORMALLY SUBJECT TO JUDICIAL REVIEW.  WHEN IT COMES TO AN
ADMINISTRATOR'S CONSTRUCTION OF A STATUTORY TERM IN THE LAW THAT HE
SUPERVISES, HOWEVER, WE HAVE ALLOWED HIS EXPERTISE GREAT LEEWAY IN THE
DEFINITION, /2/  ONLY RARELY DISTRUBING IT. 

THE COMPTROLLER'S DEFINITION OF "DEPOSITS" SHOULD BE HONORED HERE. 
FOR WHERE THE RISK IS ON THE CUSTOMER THAT HIS CASH AND CHECKS MAY
NEVER REACH THE BANK, HE CANNOT IN GOOD SENSE OR IN GOOD LAW BE DEEMED
TO HAVE MADE A DEPOSIT WHILE THE FUNDS ARE IN TRANSIT. 

BY THE STANDARDS OF ADMINISTRATIVE LAW HONORED UNTIL TODAY, THE
COMPTROLLER WAS JUSTIFIED IN DEFINING "DEPOSITS" TO MAKE THE ARMORED
CARS MESSENGERS OF THE CUSTOMERS, NOT AGENTS OF THE BANK.  SO WHETHER
COMMON SENSE OR THE LAW IS OUR STANDARD, THE JUDGMENT OF THE COURT OF
APPEALS SHOULD BE REVERSED.  THE COMPTROLLER'S AUTHORIZATION OF THESE
ARMORED CAR ACTIVITIES AS BEING PERMISSIBLE UNDER THE NATIONAL BANK ACT
WAS AN INTERPRETATION OF THE ACT WHICH, AS MR. JUSTICE STEWART SAYS IN
HIS DISSENT, CANNOT BE SAID TO BE "NOT A REASONABLE ONE." 

/1/  PAR. 7490, COMPTROLLER'S MANUAL FOR NATIONAL BANKS.  THIS
PARAGRAPH PROVIDES: 

"TO MEET THE REQUIREMENTS OF ITS CUSTOMERS, A NATIONAL BANK MAY
PROVIDE MESSENGER SERVICE BY MEANS OF AN ARMORED CAR OR OTHERWISE,
PURSUANT TO AN AGREEMENT WHEREIN IT IS SPECIFIED THAT THE MESSENGER IS
THE AGENT OF THE CUSTOMER RATHER THAN OF THE BANK.  DEPOSITS COLLECTED
UNDER THIS ARRANGEMENT ARE NOT CONSIDERED AS HAVING BEEN RECEIVED BY
THE BANK UNTIL THEY ARE ACTUALLY DELIVERED TO THE TELLER AT THE BANK'S
PREMISES.  SIMILARLY, A CHECK IS CONSIDERED AS HAVING BEEN PAID AT THE
BANK WHEN THE MONEY IS HANDED TO THE MESSENGER AS AGENT FOR THE
CUSTOMER." 

/2/  SEE SEC V. NEW ENGLAND ELECTRIC SYSTEM, 384 U.S. 176, 185;
UDALL V. TALLMAN, 380 U.S. 1, 16; UNITED STATES V. DRUM, 368 U.S. 370,
374-376; NLRB V. COCA-COLA BOTTLING CO., 350 U.S. 264, 269;
UNEMPLOYMENT COMPENSATION COMM'N V. ARAGON, 329 U.S. 143, 153-154; NLRB
V. HEARST PUBLICATIONS, INC., 322 U.S. 111, 130-131; GRAY V. POWELL,
314 U.S. 402, 411-413; ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307
U.S. 125, 145-146; JAFFE, JUDICIAL REVIEW:  QUESTION OF LAW, 69
HARV.L.REV.  239, 261 (1955); NATHANSON, ADMINISTRATIVE DISCRETION IN
THE INTERPRETATION OF STATUTES, 3 VAND.L.REV.  470, 490-491 (1950). 

MR. JUSTICE STEWART, DISSENTING. 

I WHOLLY AGREE WITH THE COURT THAT FEDERAL LAW IS TO BE APPLIED IN
DETERMINING WHETHER THE ACTIVITIES OF A NATIONAL BANK CONSTITUTE BRANCH
BANKING UNDER THE EXCLUSIVE DEFINITION CONTAINED IN THE NATIONAL BANK
ACT, 12 U.S.C. 36(F).  WHETHER THE ACTIVITIES HERE IN QUESTION
CONSTITUTE BRANCH BANKING UNDER THAT STANDARD SEEMS TO ME AN EXTREMELY
CLOSE QUESTION.  THAT BEING SO, I WOULD DEFER TO THE DETERMINATION OF
THE COMPTROLLER OF THE CURRENCY.  HE IS THE OFFICIAL CHARGED WITH
ADMINISTERING THERE PROVISIONS OF THE ACT, AND I CANNOT SAY HIS
DETERMINATION WAS NOT A REASONABLE ONE.  SEE UDALL V. TALLMAN, 380 U.S.
1, 16-18. 

ROBERT S. EDWARDS ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER
IN NO. 19.  DEPUTY SOLICITOR GENERAL SPRINGER ARGUED THE CAUSE FOR
PETITIONER IN NO. 34.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS, ROBERT V. ZENER, AND
ROBERT E. KOPP. 

WILLIAM REECE SMITH, JR., ARGUED THE CAUSE FOR RESPONDENTS IN BOTH
CASES.  WITH HIM ON THE BRIEF WAS V. CARROLL WEBB. 

JAMES F. BELL, BY SPECIAL LEAVE OF COURT, ARGUED THE CAUSE FOR THE
NATIONAL ASSOCIATION OF SUPERVISORS OF STATE BANKS AS AMICUS CURIAE
URGING AFFIRMANCE IN BOTH CASES.  WITH HIM ON THE BRIEF WAS BRIAN C.
ELMER. 

E. BARRETT PRETTYMAN, JR., FILED A BRIEF FOR THE FIRST NATIONAL BANK
OF CORNELIA, GEORGIA, ET AL. AS AMICI CURIAE URGING REVERSAL IN BOTH
CASES. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN BOTH CASES WERE FILED BY
ARTHUR K. BOLTON, ATTORNEY GENERAL OF GEORGIA, HAROLD N. HILL, JR.,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, J. ROBERT COLEMAN AND ROBERT J.
CASTELLANI, ASSISTANT ATTORNEYS GENERAL, ROBERT MORGAN, ATTORNEY
GENERAL OF NORTH CAROLINA, AND MILLARD R. RICH, JR., ASSISTANT ATTORNEY
GENERAL, FOR THE STATES OF GEORGIA AND NORTH CAROLINA, AND BY HORACE R.
HANSEN FOR THE INDEPENDENT BANKERS ASSOCIATION OF AMERICA ET AL.
..END :











SHORE LINE V. TRANSPORTATION UNION, 396 U.S. 142 


       DETROIT & TOLEDO SHORE LINE RAILROAD CO. V. UNITED

           TRANSPORTATION UNION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 SIXTH CIRCUIT

        NO. 29.  ARGUED OCTOBER 20, 1969-- DECIDED DECEMBER 9,
1969 


A LABOR DISPUTE AROSE BETWEEN PETITIONER RAILROAD AND RESPONDENT
RAILROAD UNION OVER PETITIONER'S PROPOSAL TO ESTABLISH NEW "OUTLYING
WORK ASSIGNMENTS" AWAY FROM ITS PRINCIPAL YARD.  THERE WAS NOTHING IN
THE COLLECTIVE-BARGAINING AGREEMENT THAT PROHIBITED SUCH ASSIGNMENTS. 
THE UNION FILED A NOTICE UNDER SEC. 6 OF THE RAILWAY LABOR ACT OF A
PROPOSED CHANGE IN THE AGREEMENT, AND AFTER THE FAILURE OF THE PARTIES
TO NEGOTIATE A SETTLEMENT, INVOKED THE SERVICES OF THE NATIONAL
MEDIATION BOARD.  WHILE THE MEDIATION BOARD PROCEEDINGS WERE PENDING,
THE RAILROAD ANNOUNCED THE CREATION OF THE DISPUTED WORK ASSIGNMENTS,
AND THE UNION THREATENED TO STRIKE.  PETITIONER BROUGHT THIS ACTION TO
ENJOIN A STRIKE AND THE UNION COUNTERCLAIMED FOR AN INJUNCTION
PROHIBITING THE ESTABLISHMENT OF THE OUTLYING ASSIGNMENTS ON THE GROUND
THAT SEC. 6, WHICH PROVIDES THAT "WHERE . . . THE SERVICES OF THE
MEDIATION BOARD HAVE BEEN REQUESTED BY EITHER PARTY . . . , RATES OF
PAY, RULES, OR WORKING CONDITIONS SHALL NOT BE ALTERED BY THE CARRIER
UNTIL THE CONTROVERSY HAS BEEN FINALLY ACTED UPON . . .BY THE MEDIATION
BOARD," FORBIDS SUCH UNILATERAL ACTION BY THE CARRIER.  THE DISTRICT
COURT, DISMISSED THE RAILROAD'S COMPLAINT, BUT GRANTED THE UNION'S
REQUEST FOR AN INJUNCTION RESTRAINING THE RAILROAD FROM ESTABLISHING
ANY NEW OUTLYING ASSIGNMENTS, DESPITE THE ABSENCE OF A PROVISION
PROHIBITING SUCH ASSIGNMENTS IN THE COLLECTIVE-BARGAINING AGREEMENT. 
THE COURT OF APPEALS AFFIRMED.  HELD:  THE STATUS QUO THAT IS TO BE
MAINTAINED PURSUANT TO SEC. 6 OF THE RAILWAY LABOR ACT WHILE THE
PROCEDURES OF THE ACT ARE BEING EXHAUSTED CONSISTS OF THE ACTUAL,
OBJECTIVE WORKING CONDITIONS OUT OF WHICH THE DISPUTE AROSE, WHETHER OR
NOT THOSE CONDITIONS ARE COVERED IN AN EXISTING COLLECTIVE-BARGAINING
AGREEMENT.  ORDER OF CONDUCTORS V. PITNEY, 326 U.S. 561, AND WILLIAMS
V. TERMINAL CO., 315 U.S. 386, DISTINGUISHED.  PP. 148-159. 

401 F.2D 368, AFFIRMED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES A QUESTION CONCERNING THE EXTENT TO WHICH THE
RAILWAY LABOR ACT OF 1926 /1/  IMPOSES AN OBLIGATION UPON THE PARTIES
TO A RAILROAD LABOR DISPUTE TO MAINTAIN THE STATUS QUO WHILE THE
"PURPOSELY LONG AND DRAWN OUT"  /2/  PROCEDURES OF THE ACT ARE
EXHAUSTED.  PETITIONER, A RAILROAD, CONTENDS THAT THE STATUS QUO WHICH
THE ACT REQUIRES BE MAINTAINED CONSISTS ONLY OF THE WORKING CONDITIONS
SPECIFICALLY COVERED IN THE PARTIES' EXISTING COLLECTIVE-BARGAINING
AGREEMENT.  RESPONDENT RAILROAD BROTHERHOOD CONTENDS THAT WHAT MUST BE
PRESERVED AS THE STATUS QUO ARE THE ACTUAL, OBJECTIVE WORKING
CONDITIONS OUT OF WHICH THE DISPUTE AROSE, IRRESPECTIVE OF WHETHER
THESE CONDITIONS ARE COVERED IN AN EXISTING COLLECTIVE AGREEMENT.  FOR
THE REASONS STATED BELOW, WE THINK THAT ONLY THE UNION'S POSITION IS
CONSISTENT WITH THE LANGUAGE AND PURPOSES OF THE RAILWAY LABOR ACT. 

THE FACTS INVOLVED IN THIS CASE ARE THESE:  THE MAIN LINE OF THE
DETROIT AND TOLEDO SHORE LINE (SHORE LINE), PETITIONER'S RAILROAD, RUNS
FROM LANG YARD IN TOLEDO, OHIO, 50 MILES NORTH TO DEAROAD YARD NEAR
DETROIT, MICHIGAN.  FOR MANY YEARS PRIOR TO 1961, LANG YARD WAS THE
TERMINAL AT WHICH ALL TRAIN AND ENGINE CREWS REPORTED FOR WORK AND FROM
WHICH THEY LEFT AT THE END OF THE DAY.  AS THE OCCASIONS AROSE, THE
SHORE LINE TRANSPORTED CREWS FROM LANG YARD TO PERFORM SWITCHING AND
OTHER OPERATIONS AT VARIOUS POINTS TO THE NORTH, ASSUMING THE COSTS OF
TRANSPORTATION AND OVERTIME FOR THE CREW MEMBERS.  ON FEBRUARY 21,
1961, THE RAILROAD ADVISED RESPONDENT, THE BROTHERHOOD OF LOCOMOTIVE
FIREMEN AND ENGINEMEN (BLF & E), /3/  OF ITS INTENTION TO ESTABLISH
"OUTLYING WORK ASSIGNMENTS"  /4/  AT TRENTON, MICHIGAN, A POINT ON THE
MAIN LINE ABOUT 35 MILES NORTH OF LANG YARD.  THESE NEW ASSIGNMENTS
WOULD HAVE REQUIRED MANY EMPLOYEES TO REPORT FOR WORK AT TRENTON RATHER
THAN LANG YARD WHERE THEY HAD BEEN REPORTING.  THE BLF & E RESPONDED TO
THIS ANNOUNCEMENT BY FILING A NOTICE UNDER SEC. 6 OF THE RAILWAY LABOR
ACT /5/  PROPOSING AN AMENDMENT TO THE COLLECTIVE-BARGAINING AGREEMENT
TO COVER THE CHANGED WORKING CONDITIONS OF THE EMPLOYEES WHO WOULD WORK
OUT OF TRENTON.  SECTION 6 REQUIRES BOTH THE CARRIER AND UNION TO GIVE
THE OTHER PARTY A 30-DAY NOTICE OF AN "INTENDED CHANGE IN AGREEMENTS
AFFECTING RATES OF PAY, RULES, OR WORKING CONDITIONS."  /6/  SINCE THE
UNION THUS INVOKED THE "MAJOR-DISPUTE" SETTLEMENT PROCEDURES OF THE
RAILWAY LABOR ACT, /7/  THE DISPUTE FIRST WENT TO CONFERENCE AND, WHEN
THE PARTIES FAILED TO AGREE BETWEEN THEMSELVES, THEN TO THE NATIONAL
MEDIATION BOARD. 

WHILE THE CASE WAS PENDING BEFORE THE NATIONAL MEDIATION BOARD, THE
SHORE LINE ANNOUNCED TWO NEW OUTLYING ASSIGNMENTS AT DEAROAD, MICHIGAN,
AT THE NORTHERN END OF THE LINE.  BECAUSE WORK CREWS COULD BE TAKEN BY
CAB FROM DEAROAD SOUTH TO TRENTON, THE RAILROAD CONCLUDED THAT IT NO
LONGER NEEDED TO ESTABLISH ASSIGNMENTS AT TRENTON AND SO ADVISED THE
MEDIATION BOARD.  WHEN THE DEAROAD ASSIGNMENTS WERE ANNOUNCED, THE
UNION WITHDREW FROM THE MEDIATION BOARD PROCEEDINGS, AND, BEFORE A
SPECIAL BOARD OF ADJUSTMENT CONVENED UNDER SEC. 3 OF THE ACT, /8/
CHALLENGED THE RAILROAD'S RIGHT UNDER THE PARTIES' COLLECTIVE AGREEMENT
TO ESTABLISH OUTLYING ASSIGNMENTS.  ON NOVEMBER 30, 1965, THE SPECIAL
BOARD RULED THAT THE SHORE LINE-BLF & E AGREEMENT DID NOT PROHIBIT THE
RAILROAD FROM MAKING THE ASSIGNMENTS.  /9/ 

RELYING IN PART ON THE RULING OF THE SPECIAL BOARD, THE RAILROAD
NOTIFIED THE UNION ON JANUARY 24, 1966, THAT IT WAS REVIVING ITS PLAN
FOR WORK ASSIGNMENTS AT TRENTON.  AGAIN THE UNION RESPONDED BY FILING A
SEC. 6 NOTICE OF A PROPOSED CHANGE IN THE PARTIES' COLLECTIVE
AGREEMENT.  THIS TIME THE UNION SOUGHT TO AMEND THE AGREEMENT TO FORBID
THE RAILROAD FROM MAKING ANY OUTLYING ASSIGNMENTS AT ALL.  THE PARTIES
WERE AGAIN UNABLE TO NEGOTIATE A SETTLEMENT THEMSELVES, AND ON JUNE 17,
1966, THE UNION INVOKED THE SERVICES OF THE NATIONAL MEDIATION BOARD. 
WHILE THE MEDIATION BOARD PROCEEDINGS WERE PENDING, THE RAILROAD POSTED
A BULLETIN DEFINITELY CREATING THE DISPUTED WORK ASSIGNMENTS AT TRENTON
EFFECTIVE SEPTEMBER 26, 1966.  FACED WITH THIS UNILATERAL CHANGE IN
WORKING CONDITIONS, THE UNION THREATENED A STRIKE.  THE RAILROAD THEN
BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT TO ENJOIN THE
BLF & E /10/  FROM CALLING AND CARRYING OUT THE ALLEGEDLY ILLEGAL
STRIKE.  THE UNION COUNTERCLAIMED FOR AN INJUNCTION PROHIBITING THE
SHORE LINE FROM ESTABLISHING OUTLYING ASSIGNMENTS ON THE GROUND THAT
THE STATUS QUO PROVISION OF SEC. 6 OF THE RAILWAY LABOR ACT FORBIDS A
CARRIER FROM TAKING UNILATERAL ACTION ALTERING "RATES OF PAY, RULES, OR
WORKING CONDITIONS" WHILE THE DISPUTE IS PENDING BEFORE THE NATIONAL
MEDIATION BOARD.  THE PERTINENT PART OF SEC. 6 PROVIDES:  /11/ 

     "IN EVERY CASE WHERE . . . THE SERVICES OF THE MEDIATION BOARD

HAVE BEEN REQUESTED BY EITHER PARTY . . . , RATES OF PAY, RULES,

  OR WORKING CONDITIONS SHALL NOT BE ALTERED BY THE CARRIER UNTIL

  THE CONTROVERSY HAS BEEN FINALLY ACTED UPON . . .BY THE MEDIATION

  BOARD . . . ."  45 U.S.C. 156. 

THE DISTRICT COURT DISMISSED THE RAILROAD'S COMPLAINT, FROM WHICH NO
APPEAL HAS BEEN TAKEN, BUT IT GRANTED THE INJUNCTION SOUGHT BY THE
UNION RESTRAINING THE RAILROAD FROM ESTABLISHING ANY NEW OUTLYING
ASSIGNMENTS AT TRENTON OR ELSEWHERE.  /12/  THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT AFFIRMED THE ISSUANCE OF THE INJUNCTION
AGAINST THE RAILROAD.  401 F.2D 368 (1968).  WE GRANTED CERTIORARI, 393
U.S. 1116 (1969). 

IN GRANTING THE INJUNCTION THE DISTRICT COURT HELD THAT THE STATUS QUO
REQUIREMENT OF SEC. 6 PROHIBITED THE SHORE LINE FROM MAKING OUTLYING
ASSIGNMENTS EVEN THOUGH THERE WAS NOTHING IN THE PARTIES'  COLLECTIVE
AGREEMENT WHICH PROHIBITED SUCH ASSIGNMENTS.  THE SHORE LINE VIGOROUSLY
CHALLENGES THIS HOLDING.  IT CONTENDS THAT THE PURPOSE OF THE STATUS
QUO PROVISIONS OF THE ACT IS TO GUARANTEE ONLY THAT EXISTING COLLECTIVE
AGREEMENTS CONTINUE TO GOVERN THE PARTIES' RIGHTS AND DUTIES DURING
EFFORTS TO CHANGE THOSE AGREEMENTS.  THEREFORE, THE RAILROAD ARGUES,
WHAT CONGRESS INTENDED BY WRITING IN SEC. 6 THAT "RATES OF PAY, RULES,
OR WORKING CONDITIONS SHALL NOT BE ALTERED" WAS THAT RATES OF PAY,
RULES, OR WORKING CONDITIONS AS EXPRESSED IN AN AGREEMENT SHALL NOT BE
ALTERED.  AND SINCE NOTHING IN THE RAILROAD'S AGREEMENT WITH THE UNION
PRECLUDED THE RAILROAD'S AGREEMENT WITH THE UNION PRECLUDED THE
RAILROAD FROM ALTERING THE LOCATION OF WORK ASSIGNMENTS, THIS WORKING
CONDITION WAS NOT "EXPRESSED IN AN AGREEMENT."  THUS, THE ARGUMENT
RUNS, THE RAILROAD COULD MAKE OUTLYING ASSIGNMENTS WITHOUT VIOLATING
THE STATUS QUO PROVISION OF SEC. 6, AND THE JUDGMENTS BELOW MUST BE
REVERSED. 

WE NOTE AT THE OUTSET THAT THE LANGUAGE OF SEC. 6 SIMPLY DOES NOT
SAY WHAT THE RAILROAD WOULD HAVE IT SAY.  INSTEAD, THE SECTION SPEAKS
PLAINLY OF "RATES OF PAY, RULES, OR WORKING CONDITIONS" WITHOUT ANY
LIMITATION TO THOSE OBLIGATIONS ALREADY EMBODIED IN COLLECTIVE
AGREEMENTS.  MORE IMPORTANT, WE ARE PERSUADED THAT THE RAILROAD'S
INTERPRETATION OF THIS SECTION IS SHARPLY AT VARIANCE WITH THE OVERALL
DESIGN AND PURPOSE OF THE RAILWAY LABOR ACT. 

THE RAILWAY LABOR ACT WAS PASSED IN 1926 TO ENCOURAGE COLLECTIVE
BARGAINING BY RAILROADS AND THEIR EMPLOYEES IN ORDER TO PREVENT, IF
POSSIBLE, WASTEFUL STRIKES AND INTERRUPTIONS OF INTERSTATE COMMERCE. 
/13/  THE PROBLEM OF STRIKES WAS CONSIDERED TO BE PARTICULARLY ACUTE IN
THE AREA OF "MAJOR DISPUTES," THOSE DISPUTES INVOLVING THE FORMATION OF
COLLECTIVE AGREEMENTS AND EFFORTS TO CHANGE THEM.  ELGIN, J. & E.R. CO.
V. BURLEY, 325 U.S. 711, 722-726 (1945).  RATHER THAN RELY UPON
COMPULSORY ARBITRATION, TO WHICH BOTH SIDES WERE BITTERLY OPPOSED, THE
RAILROAD AND UNION REPRESENTATIVES WHO DRAFTED THE ACT CHOSE TO LEAVE
THE SETTLEMENT OF MAJOR DISPUTES ENTIRELY TO THE PROCESSES OF
NONCOMPULSORY ADJUSTMENT.  ID., AT 724.  TO THIS END, THE ACT
ESTABLISHED RATHER ELABORATE MACHINERY FOR NEGOTIATION, MEDIATION,
VOLUNTARY ARBITRATION, AND CONCILIATION.  GENERAL COMMITTEE, B.L.E. V.
MISSOURI-K.-T.R. CO., 320 U.S. 323, 328-333 (1943).  IT IMPOSED UPON
THE PARTIES AN OBLIGATION TO MAKE EVERY REASONABLE EFFORT TO NEGOTIATE
A SETTLEMENT AND TO REFRAIN FROM ALTERING THE STATUS QUO BY RESORTING
TO SELF-HELP WHILE THE ACT'S REMEDIES WERE BEING EXHAUSTED.  /14/
RAILROAD TRAINMEN V. TERMINAL CO., 394 U.S. 369, 378 (1969); ELGIN, J.
& E.R. CO. V. BURLEY, SUPRA, AT 721-731; TEXAS & N.O.R. CO. V. RAILWAY
CLERKS, 281 U.S. 548, 565-566 (1930).  A FINAL AND CRUCIAL ASPECT OF
THE ACT WAS THE POWER GIVEN TO THE PARTIES AND TO REPRESENTATIVES OF
THE PUBLIC TO MAKE THE EXHAUSTION OF THE ACT'S REMEDIES AN ALMOST
INTERMINABLE PROCESS.  AS WE NOTED IN RAILWAY CLERKS V. FLORIDA E.C.R.
CO., 384 U.S. 238, 246 (1966), "THE PROCEDURES OF THE ACT ARE PURPOSELY
LONG AND DRAWN OUT, BASED ON THE HOPE THAT REASON AND PRACTICAL
CONSIDERATIONS WILL PROVIDE IN TIME AN AGREEMENT THAT RESOLVES THE
DISPUTE." 

THE ACT'S STATUS QUO REQUIREMENT IS CENTRAL TO ITS DESIGN.  ITS
IMMEDIATE EFFECT IS TO PREVENT THE UNION FROM STRIKING AND MANAGEMENT
FROM DOING ANYTHING THAT WOULD JUSTIFY A STRIKE.  IN THE LONG RUN,
DELAYING THE TIME WHEN THE PARTIES CAN RESORT TO SELF-HELP PROVIDES
TIME FOR TEMPERS TO COOL, HELPS CREATE AN ATMOSPHERE IN WHICH RATIONAL
BARGAINING CAN OCCUR, AND PERMITS THE FORCES OF PUBLIC OPINION TO BE
MOBILIZED IN FAVOR OF A SETTLEMENT WITHOUT A STRIKE OR LOCKOUT. 
MOREOVER, SINCE DISPUTES USUALLY ARISE WHEN ONE PARTY WANTS TO CHANGE
THE STATUS QUO WITHOUT UNDUE DELAY, THE POWER WHICH THE ACT GIVES THE
OTHER PARTY TO PRESERVE THE STATUS QUO FOR A PROLONGED PERIOD WILL
FREQUENTLY MAKE IT WORTHWHILE FOR THE MOVING PARTY TO COMPROMISE WITH
THE INTERESTS OF THE OTHER SIDE AND THUS REACH AGREEMENT WITHOUT
INTERRUPTION TO COMMERCE. 

THERE ARE THREE STATUS QUO PROVISIONS IN THE ACT, EACH COVERING A
DIFFERENT STAGE OF THE MAJOR DISPUTE SETTLEMENT PROCEDURES.  SECTION 6,
THE SECTION OF IMMEDIATE CONCERN IN THIS CASE, PROVIDES THAT "RATES OF
PAY, RULES, OR WORKING CONDITIONS SHALL NOT BE ALTERED" DURING THE
PERIOD FROM THE FIRST NOTICE OF A PROPOSED CHANGE IN AGREEMENTS UP TO
AND THROUGH ANY PROCEEDINGS BEFORE THE NATIONAL MEDIATION BOARD.  /15/
MEDIATION BOARD PROCEEDINGS "NO CHANGE SHALL BE MADE IN THE RATES OF
PAY, RULES, OR WORKING CONDITIONS OR ESTABLISHED PRACTICES IN EFFECT
PRIOR TO THE TIME THE DISPUTE AROSE," UNLESS THE PARTIES AGREE TO
ARBITRATION OR A PRESIDENTIAL EMERGENCY BOARD IS CREATED DURING THE 30
DAYS.  /16/  FINALLY, SEC. 10 PROVIDES THAT AFTER THE CREATION OF AN
EMERGENCY BOARD AND FOR 30 DAYS AFTER THE BOARD HAS MADE ITS REPORT TO
THE PRESIDENT, "NO CHANGE, EXCEPT BY AGREEMENT, SHALL BE MADE BY THE
PARTIES TO THE CONTROVERSY IN THE CONDITIONS OUT OF WHICH THE DISPUTE
AROSE."  /17/  THESE PROVISIONS MUST BE READ IN CONJUNCTION WITH THE
IMPLICIT STATUS QUO REQUIREMENT IN THE OBLIGATION IMPOSED UPON BOTH
PARTIES BY SEC. 2 FIRST, "TO EXERT EVERY REASONABLE EFFORT" TO SETTLE
DISPUTES WITHOUT INTERRUPTION TO INTERSTATE COMMERCE.  /18/ 

WHILE THE QUOTED LANGUAGE OF SECS. 5, 6, AND 10 IS NOT IDENTICAL IN
EACH CASE, WE BELIEVE THAT THESE PROVISIONS, TOGETHER WITH SEC. 2
FIRST, FORM AN INTEGRATED, HARMONIOUS SCHEME FOR PRESERVING THE STATUS
QUO FROM THE BEGINNING OF THE MAJOR DISPUTE THROUGH THE FINAL 30-DAY
"COOLING-OFF" PERIOD.  ALTHOUGH THESE THREE PROVISIONS ARE APPLICABLE
TO DIFFERENT STAGES OF THE ACT'S PROCEDURES, THE INTENT AND EFFECT OF
EACH IS IDENTICAL SO FAR AS DEFINING AND PRESERVING THE STATUS QUO IS
CONCERNED.  /19/  THE OBLIGATION OF BOTH PARTIES DURING A PERIOD IN
WHICH ANY OF THESE STATUS QUO PROVISIONS IS PROPERLY INVOKED IS TO
PRESERVE AND MAINTAIN UNCHANGED THOSE ACTUAL, OBJECTIVE WORKING
CONDITIONS AND PRACTICES, BROADLY CONCEIVED, WHICH WERE IN EFFECT PRIOR
TO THE TIME THE PENDING DISPUTE AROSE AND WHICH ARE INVOLVED IN OR
RELATED TO THAT DISPUTE.  /20/ 

IT IS QUITE APPARENT THAT UNDER OUR INTERPRETATION OF THE STATUS QUO
REQUIREMENT, THE ARGUMENT ADVANCED BY THE SHORE LINE HAS LITTLE MERIT. 
THE RAILROAD CONTENDS THAT A PARTY IS BOUND TO PRESERVE THE STATUS QUO
IN ONLY THOSE WORKING CONDITIONS COVERED IN THE PARTIES' EXISTING
COLLECTIVE AGREEMENT, BUT NOTHING IN THE STATUS QUO PROVISIONS OF SECS.
5, 6, OR 10 SUGGESTS THIS RESTRICTION.  WE HAVE STRESSED THAT THE
STATUS QUO EXTENDS TO THOSE ACTUAL, OBJECTIVE WORKING CONDITIONS OUT OF
WHICH THE DISPUTE AROSE, AND CLEARLY THESE CONDITIONS NEED NOT BE
COVERED IN AN EXISTING AGREEMENT.  THUS, THE MERE FACT THAT THE
COLLECTIVE AGREEMENT BEFORE US DOES NOT EXPRESSLY PROHIBIT OUTLYING
ASSIGNMENTS WOULD NOT HAVE BARRED THE RAILROAD FROM ORDERING THE
ASSIGNMENTS THAT GAVE RISE TO THE PRESENT DISPUTE IF, APART FROM THE
AGREEMENT, SUCH ASSIGNMENTS HAD OCCURRED FOR A SUFFICIENT PERIOD OF
TIME WITH THE KNOWLEDGE AND ACQUIESCENCE OF THE EMPLOYEES TO BECOME IN
REALITY A PART OF THE ACTUAL WORKING CONDITIONS.  HERE, HOWEVER, THE
DISPUTE OVER THE RAILROAD'S ESTABLISHMENT OF THE TRENTON ASSIGNMENTS
AROSE AT A TIME WHEN ACTUAL WORKING CONDITIONS DID NOT INCLUDE SUCH
ASSIGNMENTS.  IT WAS THEREFORE INCUMBENT UPON THE RAILROAD BY VIRTUE OF
SEC. 6 TO REFRAIN FROM MAKING OUTLYING ASSIGNMENTS AT TRENTON OR ANY
OTHER PLACE IN WHICH THERE HAD PREVIOUSLY BEEN NONE, REGARDLESS OF THE
FACT THAT THE RAILROAD WAS NOT PRECLUDED FROM MAKING THESE ASSIGNMENTS
UNDER THE EXISTING AGREEMENT.  /21/     THE SHORE LINE'S INTERPRETATION
OF THE STATUS QUO REQUIREMENT IS ALSO FUNDAMENTALLY AT ODDS WITH THE
ACT'S PRIMARY OBJECTIVE-- THE PREVENTION OF STRIKES.  THIS CASE
PROVIDES A GOOD ILLUSTRATION OF WHY THAT IS SO.  THE GOAL OF THE BLF &
E WAS TO PREVENT THE SHORE LINE FROM MAKING OUTLYING ASSIGNMENTS, A
MATTER NOT COVERED IN THEIR EXISTING COLLECTIVE AGREEMENT.  TO ACHIEVE
ITS GOAL, THE UNION INVOKED THE PROCEDURES OF THE ACT.  THE RAILROAD,
HOWEVER, REFUSED TO MAINTAIN THE STATUS QUO AND, INSTEAD, PROCEEDED TO
MAKE THE DISPUTED OUTLYING ASSIGNMENTS.  IT COULD HARDLY BE EXPECTED
THAT THE UNION WOULD SIT IDLY BY AS THE RAILROAD RUSHED TO ACCOMPLISH
THE VERY RESULT THE UNION WAS SEEKING TO PROHIBIT BY AGREEMENT.  THE
UNION UNDOUBTEDLY FELT IT COULD RESORT TO SELF-HELP IF THE RAILROAD
COULD, AND, NOT UNREASONABLY, IT THREATENED TO STRIKE.  BECAUSE THE
RAILROAD PREMATURELY RESORTED TO SELF-HELP, THE PRIMARY GOAL OF THE ACT
CAME VERY CLOSE TO BEING DEFEATED.  THE EXAMPLE OF THIS CASE COULD NO
DOUBT BE MULTIPLIED MANY TIMES.  IT WOULD BE VIRTUALLY IMPOSSIBLE TO
INCLUDE ALL WORKING CONDITIONS IN A COLLECTIVE-BARGAINING AGREEMENT. 
WHERE A CONDITION IS SATISFACTORILY TOLERABLE TO BOTH SIDES, IT IS
OFTEN OMITTED FROM THE AGREEMENT, AND IT HAS BEEN SUGGESTED THAT THIS
PRACTICE IS MORE FREQUENT IN THE RAILROAD INDUSTRY THAN IN MOST
OTHERS.  /22/  WHEN THE UNION MOVES TO BRING SUCH A PREVIOUSLY
UNCOVERED CONDITION WITHIN THE AGREEMENT, IT IS ABSOLUTELY ESSENTIAL
THAT THE STATUS QUO PROVISION OF THE ACT APPLY TO THAT WORKING
CONDITION IF THE PURPOSE OF THE ACT IS TO BE FULFILLED.  IF THE
RAILROAD IS FREE AT THIS STAGE TO TAKE ADVANTAGE OF THE AGREEMENT'S
SILENCE AND RESORT TO SELF-HELP, THE UNION CANNOT BE EXPECTED TO HOLD
BACK ITS OWN ECONOMIC WEAPONS, INCLUDING THE STRIKE.  ONLY IF BOTH
SIDES ARE EQUALLY RESTRAINED CAN THE ACT'S REMEDIES WORK EFFECTIVELY. 
/23/ 

WE NOW TURN TO ANSWER SOME OF THE ARGUMENTS ADVANCED BY THE SHORE LINE
IN SUPPORT OF ITS POSITION.  THE FIRST OF THESE INVOLVES SEC. 2 SEVENTH
OF THE ACT.  THAT SECTION FORBIDS A CARRIER FROM CHANGING "THE RATES OF
PAY, RULES, OR WORKING CONDITIONS OF ITS EMPLOYEES, AS A CLASS AS
EMBODIED IN AGREEMENTS EXCEPT IN THE MANNER PRESCRIBED IN SUCH
AGREEMENTS OR IN SECTION 6 OF THIS ACT."  /24/  (EMPHASIS ADDED.)  THE
SHORE LINE ARGUES THAT THIS SECTION IS A STATUS QUO PROVISION AND THAT
THE "AS EMBODIED IN AGREEMENTS" RESTRICTION IT CONTAINS SHOULD BE READ
INTO THE STATUS QUO PROVISIONS OF SECS. 5, 6, AND 10.  WE FIND NO MERIT
IN THIS ARGUMENT.  SECTION 2 SEVENTH, WHICH WAS ADDED TO THE ACT IN
1934, DOES NOT IMPOSE ANY STATUS QUO DUTIES ATTENDANT UPON MAJOR
DISPUTE PROCEDURES.  IT SIMPLY STATES ONE CATEGORY OF CASES IN WHICH
THOSE PROCEDURES MUST BE INVOKED.  THE PURPOSE OF SEC. 2 SEVENTH IS
TWOFOLD:  IT OPERATES TO GIVE LEGAL AND BINDING EFFECT TO COLLECTIVE
AGREEMENTS, AND IT LAYS DOWN THE REQUIREMENT THAT COLLECTIVE AGREEMENTS
CAN BE CHANGED ONLY BY THE STATUTORY PROCEDURES.  THE VIOLATION OF THIS
BOTH.  /25/  VIOLATIONS OF THE STATUS QUO PROVISIONS OF SECS. 5, 6, AND
10 ARE ONLY CIVIL WRONGS. 

SECOND, THE SHORE LINE CONTENDS THAT THE INTERPRETATION OF SEC. 6
WHICH WE ADOPT TODAY IS AT VARIANCE WITH THE POSITION WE HAVE TAKEN ON
TWO PREVIOUS OCCASIONS, CITING ORDER OF CONDUCTORS V. PITNEY, 326 U.S.
561 (1946), AND WILLIAMS V. TERMINAL CO., 315 U.S. 386 (1942). 
ALTHOUGH THESE CASES DO CONTAIN STATEMENTS WHICH OUT OF CONTEXT TEND TO
SUPPORT PETITIONER'S POSITION, NEITHER DEALT WITH THE QUESTION WE HAVE
BEFORE US TODAY.  PITNEY INVOLVED A SUIT BROUGHT BY A UNION TO ENJOIN
THE REORGANIZATION TRUSTEES OF A BANKRUPT RAILROAD FROM TRANSFERRING
CERTAIN JOBS ASSIGNMENTS TO ANOTHER UNION.  THE PLAINTIFF'S CONTENTION
WAS THAT THE DISPUTED JOBS BELONGED TO ITS MEMBERS BY BOTH CUSTOM AND
AGREEMENT.  THE TRUSTEES WERE THEREFORE PROHIBITED FROM REASSIGNING THE
JOBS, THE UNION ARGUED, SINCE THEY HAD NEVER FILED THE APPROPRIATE
NOTICE OF "INTENDED CHANGE IN AGREEMENTS" REQUIRED BY SEC. 6.  THE
RAILROAD DISPUTED THAT THE REASSIGNMENTS OF THE JOBS WOULD REQUIRE A
"CHANGE IN AGREEMENTS" AND THUS PUT THE MEANING OF THE PARTIES'
AGREEMENTS IN ISSUE.  WE HELD THAT THE PROPER FORUM FOR INTERPRETING
THE AGREEMENTS WAS THE ADJUSTMENT BOARD PROVIDED BY CONGRESS IN THE
RAILWAY LABOR ACT, SEC. 3 FIRST (I), FOR THAT PURPOSE, AND DIRECTED THE
DISTRICT COURT TO STAY ITS PROCEEDINGS ACCORDINGLY.  326 U.S.,AT 567
568.  THUS, PITNEY, AT MOST, INVOLVED A QUESTION OF THE NECESSITY OF
FILING A SEC. 6 NOTICE AND WAS NOT AT ALL CONCERNED WITH THE STATUS QUO
PROVISION OF THAT SECTION. 

THE WILLIAMS CASE IS EQUALLY INAPPOSITE.  IN THAT CASE "REDCAPS"
BROUGHT SUIT THROUGH THEIR UNION REPRESENTATIVE AGAINST THE DALLAS
RAILROAD TERMINAL TO RECOVER WAGES ALLEGEDLY OWED THEM AND RETAINED BY
THE TERMINAL IN VIOLATION OF THE FAIR LABOR STANDARDS ACT AND THE
RAILWAY LABOR ACT.  THE REDCAPS' ARGUMENT UNDER THE FAIR LABOR
STANDARDS ACT WAS THAT CONGRESS HAD NOT INTENDED THAT TIPS BE INCLUDED
IN THEIR WAGES FOR PURPOSES OF SATISFYING MINIMUM WAGE REQUIREMENTS. 
YET, THAT IS WHAT THE TERMINAL HAD DONE UNDER ITS "ACCOUNT;NG AND
GUARANTEE" PLAN FROM OCTOBER 1938, WHEN THE F.L.S.A. BECAME EFFECTIVE,
UNTIL MARCH 1940.  THE MAJORITY OF THE COURT REJECTED THE REDCAPS'
ARGUMENT, HOLDING THAT THE F.L.S.A. NEITHER PROHIBITED NOR REQUIRED THE
INCLUSION OF TIPS WITHIN WAGES.  THE QUESTION WAS HELD TO BE ONE FOR
CONTRACT BETWEEN THE PARTIES.  315 U.S.,AT 407-408.  THE REDCAPS' CLAIM
UNDER THE RAILWAY LABOR ACT WAS THAT THE TERMINAL'S "ACCOUNTING AND
GUARANTEE" PLAN UNDER WHICH TIPS WERE CONSIDERED AS PART OF WAGES WAS
PUT INTO OPERATION UNILATERALLY BY THE TERMINAL ON THE EFFECTIVE DATE
OF THE F.L.S.A., DESPITE THE FACT THAT THE REDCAPS HAD TWO WEEKS
EARLIER ASKED FOR A CONFERENCE TO NEGOTIATE AN AGREEMENT WHICH WOULD
INCLUDE THE SUBJECT OF WAGES.  THIS, THE REDCAPS ARGUED, VIOLATED THE
STATUS QUO PROVISIONS OF SEC. 6 SINCE PRIOR TO THE F.L.S.A. TIPS HAD
NOT BEEN INCLUDED IN WAGES.  THE COURT CONCLUDED, HOWEVER, THAT SEC. 6
WAS NOT APPLICABLE TO THE DISPUTE BETWEEN THE PARTIES.  THE COURT
REASONED THAT WHEN THE REDCAPS CONTINUED TO WORK AFTER BEING
INDIVIDUALLY NOTIFIED OF THE "ACCOUNTING AND GUARANTEE" PLAN, NEW AND
INDEPENDENT CONTRACTS WERE FORMED BETWEEN EACH REDCAP AND THE
TERMINAL.  THE COURT HELD THAT THESE CONTRACTS WERE NOT AFFECTED BY THE
PENDING REQUEST FOR COLLECTIVE BARGAINING UNDER THE RAILWAY LABOR ACT. 
THE DECISION RESTED PARTIALLY ON THE GROUND THAT "(INDEPENDENT
INDIVIDUAL CONTRACTS ARE NOT AFFECTED BY THE ACT."  315 U.S.,AT 399. 
AND THE COURT ALSO SAID MORE NARROWLY THAT THE STATUS QUO REQUIREMENTS
OF SEC. 6 WERE INAPPLICABLE SINCE THAT SECTION APPLIES ONLY WHEN A
"CHANGE IN AGREEMENTS" IS INVOLVED.  315 U.S.,AT 400.  IN WILLIAMS
THERE WAS ABSOLUTELY NO PRIOR HISTORY OF ANY COLLECTIVE BARGAINING OR
AGREEMENT BETWEEN THE PARTIES ON ANY MATTER.  WITHOUT PAUSING TO
COMMENT UPON THE PRESENT VITALITY OF EITHER OF THESE GROUNDS FOR
DISMISSING THE REDCAPS'  RAILWAY LABOR ACT CLAIM, IT IS READILY
APPARENT THAT WILLIAMS INVOLVED ONLY THE QUESTION OF WHETHER THE STATUS
QUO REQUIREMENT OF SEC. 6 APPLIED AT ALL.  THE COURT IN WILLIAMS
THEREFORE NEVER REACHED THE QUESTION OF THE SCOPE OF THE STATUS QUO
REQUIREMENT IN A DISPUTE, SUCH AS THE ONE BEFORE THE COURT TODAY, TO
WHICH THAT REQUIREMENT CONCEDEDLY APPLIES. 

FINALLY, THE SHORE LINE POINTS OUT, QUITE CORRECTLY, THAT ITS
POSITION ON SEC. 6 IS IDENTICAL TO THAT TAKEN BY THE NATIONAL MEDIATION
BOARD IN SEVERAL OF ITS ANNUAL REPORTS.  /26/  HOWEVER, THE MEDIATION
BOARD HAS NO ADJUDICATORY AUTHORITY WITH REGARD TO MAJOR DISPUTES, NOR
HAS IT A MANDATE TO ISSUE REGULATIONS CONSTRUING THE ACT GENERALLY. 
CERTAINLY THERE IS NOTHING IN THE ACT WHICH CAN BE INTERPRETED AS
GIVING THE MEDIATION BOARD THE POWER TO CHANGE THE PLAIN, LITERAL
MEANING OF THE STATUTE, WHICH WOULD BE THE RESULT WERE WE TO ADOPT ITS
INTERPRETATION OF SEC. 6. 

THE JUDGMENT IS

              AFFIRMED. 

/1/  44 STAT. 577, AS AMENDED, 45 U.S.C. 151 ET SEQ. 

/2/  RAILWAY CLERKS V. FLORIDA E.C.R. CO., 384 U.S. 238, 246
(1966). 

/3/  THE UNITED TRANSPORTATION UNION, THE SUCCESSOR ORGANIZATION TO
THE BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, WAS SUBSTITUTED AS
PARTY RESPONDENT BY ORDER OF THE COURT, MARCH 3, 1969.  RESPONDENTS
ALSO INCLUDE TWO OFFICERS OF THE BLF & E NAMED IN THE ORIGINAL
COMPLAINT. 

/4/  THE PARTIES TREAT THE TERM "OUTLYING WORK ASSIGNMENT" AS
MEANING A WORK ASSIGNMENT WITH A REPORTING POINT FOR GOING ON AND OFF
DUTY LOCATED ELSEWHERE THAN AT THE SHORE LINE'S PRINCIPAL YARD, LANG
YARD IN TOLEDO, OHIO.  WE ADOPT THAT USAGE HERE. 

/5/  44 STAT. 582, AS AMENDED, 45 U.S.C. 156.  SECTION 6, IN ITS
ENTIRETY, PROVIDES: 

"CARRIERS AND REPRESENTATIVES OF THE EMPLOYEES SHALL GIVE AT LEAST
THIRTY DAYS' WRITTEN NOTICE OF AN INTENDED CHANGE IN AGREEMENTS
AFFECTING RATES OF PAY, RULES, OR WORKING CONDITIONS, AND THE TIME AND
PLACE FOR THE BEGINNING OF CONFERENCE BETWEEN THE REPRESENTATIVES OF
THE PARTIES INTERESTED IN SUCH INTENDED CHANGES SHALL BE AGREED UPON
WITHIN TEN DAYS AFTER THE RECEIPT OF SAID NOTICE, AND SAID TIME SHALL
BE WITHIN THE THIRTY DAYS PROVIDED IN THE NOTICE.  IN EVERY CASE WHERE
SUCH NOTICE OF INTENDED CHANGE HAS BEEN GIVEN, OR CONFERENCES ARE BEING
HELD WITH REFERENCE THERETO, OR THE SERVICES OF THE MEDIATION BOARD
HAVE BEEN REQUESTED BY EITHER PARTY, OR SAID BOARD HAS PROFFERED ITS
SERVICES, RATES OF PAY, RULES, OR WORKING CONDITIONS SHALL NOT BE
ALTERED BY THE CARRIER UNTIL THE CONTROVERSY HAS BEEN FINALLY ACTED
UPON AS REQUIRED BY SECTION 5 OF THIS ACT, BY THE MEDIATION BOARD,
UNLESS A PERIOD OF TEN DAYS HAS ELAPSED AFTER TERMINATION OF
CONFERENCES WITHOUT REQUEST FOR OR PROFFER OF THE SERVICES OF THE
MEDIATION BOARD." 

/6/  SEE N. 5, SUPRA. 

/7/  A "MAJOR DISPUTE" IS ONE ARISING OUT OF THE FORMATION OR CHANGE
OF COLLECTIVE AGREEMENTS COVERING RATES OF PAY, RULES, OR WORKING
CONDITIONS.  ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711, 722-727
(1945). 

/8/  44 STAT. 578, AS AMENDED, 45 U.S.C. 153.  AT THIS POINT, THE
BLF & E WAS CONSIDERING THE CONTROVERSY AS A "MINOR DISPUTE," I.E., A
DISPUTE ARISING OUT OF THE INTERPRETATION OR APPLICATION OF COLLECTIVE
AGREEMENTS.  UNDER SEC. 3 OF THE RAILWAY LABOR ACT SUCH DISPUTES ARE
SETTLED BY AN ADJUSTMENT BOARD WHOSE INTERPRETATION OF THE COLLECTIVE
AGREEMENT IS BINDING ON THE PARTIES.  SEE ELGIN, J. & E.R. CO. V.
BURLEY, SUPRA, AT 722-727. 

/9/  THE SPECIAL BOARD OF ADJUSTMENT FOUND: 

"WHAT TOOK PLACE HERE WAS NOT A CHANGE IN THE RECOGNIZED TERMINAL,
BUT SIMPLY AMOUNTED TO AN OUTLYING ASSIGNMENT.  THERE IS NOTHING IN THE
RULES OF AGREEMENT WHICH PRECLUDES THIS CARRIER FROM ESTABLISHING AN
OUTSIDE ASSIGNMENT."  APP. 110. 

/10/  THE BROTHERHOOD OF RAILROAD TRAINMEN WAS ALSO NAMED A
DEFENDANT, AS WERE SEVERAL OFFICERS OF BOTH UNIONS.  THE CAUSES OF
ACTION AGAINST THE TWO BROTHERHOODS WERE COMPLETELY DIFFERENT, HOWEVER,
AND THE CASES WERE TREATED AS DISTINCT AT TRIAL AND ON APPEAL.  THE
BROTHERHOOD OF RAILROAD TRAINMEN IS NOT INVOLVED IN THE PRESENT
LITIGATION AT THIS STAGE. 

/11/  THE FULL SECTION IS SET OUT IN N. 5, SUPRA. 

/12/  THE ORDER OF THE DISTRICT COURT IS UNREPORTED.  DETROIT &
TOLEDO SHORE LINE R. CO. V. BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN, NO. C66-207 (D.C.N.D. OHIO, FILED NO. 15, 1966).  THE
OPINION OF THE DISTRICT COURT ON MOTION TO VACATE THE JUDGMENT IS
REPORTED AT 267 F.SUPP.  572 (1967). 

/13/  IN TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548, 565
(1930), THE COURT SAID:  "THE BROTHERHOOD INSISTS, AND WE THINK
RIGHTLY, THAT THE MAJOR PURPOSE OF CONGRESS IN PASSING THE RAILWAY
LABOR ACT WAS 'TO PROVIDE A MACHINERY TO PREVENT STRIKES.'" 

/14/  THE ACT'S MAJOR-DISPUTE PROCEDURES AND STATUS QUO REQUIREMENT
WERE CONCISELY STATED IN AN OPINION BY MR. JUSTICE HARLAN ONLY LAST
TERM, RAILROAD TRAINMEN V. TERMINAL CO., 394 U.S. 369, 378 (1969): 

"THE ACT PROVIDES A DETAILED FRAMEWORK TO FACILITATE THE VOLUNTARY
SETTLEMENT OF MAJOR DISPUTES.  A PARTY DESIRING TO EFFECT A CHANGE OF
RATES OF PAY, RULES, OR WORKING CONDITIONS MUST GIVE ADVANCE WRITTEN
NOTICE.  SEC. 6.  THE PARTIES MUST CONFER, SEC. 2 SECOND, AND IF
CONFERENCE FAILS TO RESOLVE THE DISPUTE, EITHER OR BOTH MAY INVOKE THE
SERVICES OF THE NATIONAL MEDIATION BOARD, WHICH MAY ALSO PROFFER ITS
SERVICES SUA SPONTE IF IT FINDS A LABOR EMERGENCY TO EXIST.  SEC. 5
FIRST.  IF MEDIATION FAILS, THE BOARD MUST ENDEAVOR TO INDUCE THE
PARTIES TO SUBMIT THE CONTROVERSY TO BINDING ARBITRATION, WHICH CAN
TAKE PLACE, HOWEVER, ONLY IF BOTH CONSENT.  SECS. 5 FIRST, 7.  IF
ARBITRATION IS REJECTED AND THE DISPUTE THREATENS 'SUBSTANTIALLY TO
INTERRUPT INTERSTATE COMMERCE TO A DEGREE SUCH AS TO DEPRIVE ANY
MEDIATION BOARD SHALL NOTIFY THE PRESIDENT,' WHO 8AY CREATE AN
EMERGENCY BOARD TO INVESTIGATE AND REPORT ON THE DISPUTE.  SEC. 10. 
WHILE THE DISPUTE IS WORKING ITS WAY THROUGH THESE STAGES, NEITHER
PARTY MAY UNILATERALLY ALTER THE STATUS QUO.  SECS. 2 SEVENTH, 5 FIRST,
6, 10." 

/15/  SECTION 6 IS SET OUT IN ITS ENTIRETY IN N. 5, SUPRA. 

/16/  SECTION 5 FIRST, 44 STAT. 580, AS AMENDED, 45 U.S.C. 155
FIRST, PROVIDES IN PART: 

"IF ARBITRATION AT THE REQUEST OF THE BOARD SHALL BE REFUSED BY ONE
OR BOTH PARTIES, THE BOARD SHALL AT ONCE NOTIFY BOTH PARTIES IN WRITING
THAT ITS MEDIATORY EFFORTS HAVE FAILED AND FOR THIRTY DAYS THEREAFTER,
UNLESS IN THE INTERVENING PERIOD THE PARTIES AGREE TO ARBITRATION, OR
AN EMERGENCY BOARD SHALL BE CREATED UNDER SECTION 10 OF THIS ACT, NO
CHANGE SHALL BE MADE IN THE RATES OF PAY, RULES, OR WORKING CONDITIONS
OR ESTABLISHED PRACTICES IN EFFECT PRIOR TO THE TIME THE DISPUTE
AROSE."     /17/  SECTION 10, 44 STAT. 586, AS AMENDED, 45 U.S.C. 160,
PROVIDES IN PART: 

"AFTER THE CREATION OF SUCH BOARD AND FOR THIRTY DAYS AFTER SUCH
BOARD HAS MADE ITS REPORT TO THE PRESIDENT, NO CHANGE, EXCEPT BY
AGREEMENT, SHALL BE MADE BY THE PARTIES TO THE CONTROVERSY IN THE
CONDITIONS OUT OF WHICH THE DISPUTE AROSE." 

/18/  SECTION 2 FIRST, 44 STAT. 577, AS AMENDED, 45 U.S.C. 152
FIRST, PROVIDES: 

"IT SHALL BE THE DUTY OF ALL CARRIERS, THEIR OFFICERS, AGENTS, AND
EMPLOYEES TO EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN
AGREEMENTS CONCERNING RATES OF PAY, RULES, AND WORKING CONDITIONS, AND
TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF THE APPLICATION OF SUCH
AGREEMENTS OR OTHERWISE, IN ORDER TO AVOID ANY INTERRUPTION TO COMMERCE
OR TO THE OPERATION OF ANY CARRIER GROWING OUT OF ANY DISPUTE BETWEEN
THE CARRIER AND THE EMPLOYEES THEREOF."  THE RELATIONSHIP BETWEEN THE
STATUS QUO PROVISIONS AND SEC. 2 FIRST, WAS MADE EXPLICIT IN THE
TESTIMONY OF DONALD RICHBERG WHO SPOKE AS THE UNIONS' REPRESENTATIVE
WHEN THE PROPOSED RAILROAD LEGISLATION WAS PRESENTED TO CONGRESS
JOINTLY BY THE RAILROADS AND THE UNIONS: 

"AS TO MAINTAINING THE STATUS QUO FROM THE TIME THAT A DISPUTE IS
ENGENDERED, IT IS A VIOLATION OF THE DUTIES IMPOSED BY THIS LAW FOR
EITHER PARTY TO TAKE ANY ACTION TO ARBITRARILY CHANGE THE CONDITIONS
UNTIL THAT DISPUTE HAS BEEN ADJUSTED IN ACCORDANCE WITH THE LAW.  THEIR
PRIMARY DUTY IS TO EXERT EVERY REASONABLE EFFORT TO AVOID INTERRUPTIONS
OF COMMERCE THROUGH DISPUTES.  THE 'REASONABLE EFFORTS' ARE SET FORTH
HERE THAT ALL DISPUTES SHALL BE CONSIDERED AND DECIDED IN CONFERENCE,
IF POSSIBLE; THAT, SECOND, IF CONFERENCE FAILS A CERTAIN TYPE OF
DISPUTES, OR THOSE NOT DECIDED BY THE BOARD OF ADJUSTMENT, MAY BE
CARRIED TO THE BOARD OF MEDIATORS, AND IT SHALL BE THE DUTY OF THE
BOARD OF MEDIATORS TO ACT."  HEARINGS ON H.R. 7180 BEFORE THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 69TH CONG., 1ST SESS., 92
93 (1926). 

/19/  THIS INTERPRETATION OF THE STATUS QUO PROVISIONS IS SUPPORTED
BY THE LEGISLATIVE HISTORY OF THE ACT.  SEE, E.G., THE TESTIMONY OF
DONALD RICHBERG SET OUT IN N. 18, SUPRA.  MR. RICHBERG ALSO TESTIFIED: 

"(THE ONLY THING THAT CAN PROVOKE AN ARBITRARY ACTION (REFERRING TO
STRIKES) IS THE POWER TO ARBITRARILY CHANGE THE RATES OF PAY OR RULES
OF WORKING CONDITIONS BEFORE THE CONTROVERSY IS SETTLED, AND IT IS
PROVIDED THAT THEY SHALL NOT BE ALTERED DURING THE ENTIRE PERIOD OF
UTILIZATION OF THIS LAW."  HEARINGS ON H.R. 7180 BEFORE THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 69TH CONG., 1ST SESS., 93
(1926). 

MOREOVER, WHEN THE STATUS QUO PROVISION OF SEC. 5 WAS ADDED TO THAT
AND 10 BY PRESERVING THE STATUS QUO FOR 30 DAYS FOLLOWING THE END OF
PROCEEDINGS BEFORE THE MEDIATION BOARD.  JOSEPH B. EASTMAN, FEDERAL CO
ORDINATOR OF TRANSPORTATION, THE PRINCIPAL DRAFTSMAN AND PROPONENT OF
THE 1934 AMENDMENTS, TESTIFIED: 

"AS THE PRESENT ACT READS, A RAILROAD, BY REJECTING THE BOARD OF
MEDIATION'S FINAL RECOMMENDATION TO ARBITRATE THE DISPUTE, IS ENABLED
TO CHANGE THE RATES OF PAY, RULES, OR WORKING CONDITIONS ARBITRARILY,
PRIOR TO THE ISSUANCE OF AN ORDER BY THE PRESIDENT APPOINTING A FACT
FINDING BOARD AND MAINTAINING THE STATUS QUO FOR 60 DAYS . . . . THE
RAILROADS HAVE TAKEN ADVANTAGE OF THIS UNINTENTIONAL HIATUS IN THE
PRESENT LAW IN SEVERAL INSTANCES.  THE CHANGE NOW PROPOSED IS DESIGNED
TO PLUG THIS HOLE."  HEARINGS ON S. 3266 BEFORE THE SENATE COMMITTEE ON
INTERSTATE COMMERCE, 73D CONG., 2D SESS., 21 (1934). 

/20/  THE STATUS QUO PROVISION OF SEC. 10 WAS THE ONLY ONE DISCUSSED
IN ANY DEPTH AT THE 1926 CONGRESSIONAL HEARINGS ON THE BILL.  DONALD
RICHBERG, N. 19, SUPRA, TESTIFIED AS FOLLOWS WHEN QUESTIONED ABOUT THE
INTENDED SCOPE OF THE STATUS QUO PROVISION: 

"THE THOUGHT WAS TO INCLUDE IN THE BROADEST WAY ALL THE FACTORS
WHICH CONTRIBUTED TO WHAT IS COMMONLY CALLED THE STATUS QUO.  IN OTHER
WORDS, THE CONDITIONS MAY DEPEND UPON THE DISPUTE, WHETHER IT IS WITH
REGARD TO RULES OR WITH REGARD TO WAGES."  HEARINGS ON H.R. 7180 BEFORE
THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 69TH CONG., 1ST
SESS., 44 (1926). 

WHAT BROADER PHRASE COULD BE USED THAT 'CONDITIONS OUT OF WHICH THE
DISPUTE AROSE' WHICH COMPREHENDS ALL THE ELEMENTS AFFECTING THE
CONTROVERSY?  IT IS INTENDED TO MAKE IT CLEAR THAT THE PARTIES ARE
GOING TO WAIT AND GIVE THE GOVERNMENT FULL OPPORTUNITY TO ADJUST THE
CONTROVERSY."  HEARINGS ON S. 2306 BEFORE THE SENATE COMMITTEE ON
INTERSTATE COMMERCE, 69TH CONG., 1ST SESS., 88-89 (1926). 

/21/  SEE N. 9, SUPRA. 

/22/  BRIEF OF RAILWAY LABOR EXECUTIVES' ASSOCIATION AS AMICUS
CURIAE 17. 

/23/  RESPONDENT BLF & E HAS URGED IN ITS BRIEF THAT WE ALSO
CONSIDER THE QUESTION WHETHER THE SHORE LINE VIOLATED A DUTY TO BARGAIN
IN GOOD FAITH, CITING FIBREBOARD CORP. V. NLRB, 379 U.S. 203 (1964),
AND NLRB V. KATZ, 369 U.S. 736 (1962).  DECIDING THE CASE AS WE DO
UNDER THE STATUS QUO PROVISIONS OF THE ACT, WE FIND IT UNNECESSARY TO
REACH THIS ARGUMENT. 

/24/  SECTION 2 SEVENTH, 48 STAT. 1188, 45 U.S.C. 152 SEVENTH,
PROVIDES AS FOLLOWS: 

"NO CARRIER, ITS OFFICERS OR AGENTS SHALL CHANGE THE RATES OF PAY,
RULES, OR WORKING CONDITIONS OF ITS EMPLOYEES, AS A CLASS AS EMBODIED
IN AGREEMENTS EXCEPT IN THE MANNER PRESCRIBED IN SUCH AGREEMENTS OR IN

/25/  RAILWAY LABOR ACT, SEC. 2 TENTH, 48 STAT. 1189, 45 U.S.C. 152
TENTH. 

/26/  THE 34TH ANNUAL REPORT OF THE NATIONAL MEDIATION BOARD
STATED: 

"SECTION 6 STATES THAT WHERE NOTICE OF INTENDED CHANGE IN AN
AGREEMENT HAS BEEN GIVEN, RATES OF PAY, RULES, AND WORKING CONDITIONS
AS EXPRESSED IN THE AGREEMENT SHALL NOT BE ALTERED BY THE CARRIER UNTIL
THE CONTROVERSY HAS BEEN FINALLY ACTED UPON IN ACCORDANCE WITH
SPECIFIED PROCEDURES."  NMB, 34TH ANN.REP.  23 (FISCAL YEAR ENDED JUNE
30, 1968).  SEE ALSO NMB, 33D ANN.REP.  36 (FISCAL YEAR ENDED JUNE 30,
1967); NMB, 31ST ANN.REP.  25 (FISCAL YEAR ENDED JUNE 30, 1965). 

MR. JUSTICE HARLAN, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

I FULLY AGREE THAT THE APPLICATION OF SEC. 6 SHOULD NOT BE
RESTRICTED TO ONLY THOSE TERMS OF EMPLOYMENT THAT THE PARTIES HAVE SEEN
FIT TO EMBODY IN A WRITTEN AGREEMENT.  SECTION 6 MAY PROPERLY, IN SOME
CIRCUMSTANCES, BE EXTENDED TO "FREEZE" DE FACTO CONDITIONS OF
EMPLOYMENT.  I CANNOT, HOWEVER, ACCEPT WHAT APPEARS TO BE THE
MAJORITY'S TEST FOR DETERMINING WHEN A SEC. 6 FREEZE IS APPROPRIATE. 
/1/  ANY WORK PRACTICE IS, IN THE WORDS OF THE MAJORITY, AN "ACTUAL,
OBJECTIVE WORKING CONDITION."  HOWEVER, THE PRACTICE OF TODAY MAY NOT
BE THE ACCEPTED CONDITION OF YESTERDAY, BUT RATHER A TEMPORARY
EXPEDIENT IN WHICH NEITHER PARTY ACQUIESCES.  I FIND IT DIFFICULT TO
THINK THAT CONGRESS INTENDED THAT EITHER PARTY, BY SERVING A SEC. 6
NOTICE, SHOULD BE ABLE TO SHACKLE HIS ADVERSARY AND TIE HIM TO A
CONDITION THAT HAS BEEN HISTORICALLY AND CONSISTENTLY CONTROVERTED. 

RATHER, WHAT PERSUADES ME TO COUNTENANCE THE EXTENSION OF SEC. 6
BEYOND THE TERMS OF A WRITTEN COLLECTIVE-BARGAINING AGREEMENT IS THE
FACT, OBSERVED BY THE COURT, THAT "(WHERE A CONDITION IS SATISFACTORILY
TOLERABLE TO BOTH SIDES, IT IS OFTEN OMITTED FROM THE AGREEMENT . . .
," ANTE, AT 155.  TAKING THIS OBSERVATION AS A POINT OF DEPARTURE, I
FAVOR A MORE SUBJECTIVE APPROACH THAN THE OBJECTIVE AND MECHANICAL ONE
IMPLICIT IN THE MAJORITY'S LANGUAGE.  THE QUESTION THAT SHOULD BE ASKED
IS WHETHER IN THE CONTEXT OF THE RELATIONSHIP BETWEEN THE PRINCIPALS,
TAKEN AS A WHOLE, THERE IS A BASIS FOR IMPLYING AN UNDERSTANDING ON THE
PARTICULAR PRACTICE INVOLVED.  TO THIS END IT IS NECESSARY TO CONSIDER
NOT ONLY THE DURATION OF THE PRACTICE BUT ALSO ALL THE DEALINGS BETWEEN
THE PARTIES, AS FOR EXAMPLE, WHETHER THE PARTICULAR CONDITION HAS BEEN
THE SUBJECT OF PRIOR NEGOTIATIONS. 

WHILE I RECOGNIZE, OF COURSE, THAT ANY SUBJECTIVE TEST IS NOT EASILY
APPLIED, I CANNOT SUBSCRIBE TO A RULE THAT MAY HAVE THE INCONGRUOUS
EFFECT OF PERPETUATING WHAT BOTH PARTIES IN FACT VIEW AS A DISPUTED
PRACTICE, SIMPLY BECAUSE NEITHER PARTY, FOR REASONS OF CONVENIENCE, HAS
EXERCISED A RECOGNIZED OPTION OF RESORTING TO SELF-HELP. 

UNDER THIS STANDARD I CONSIDER THAT THE PROPER DISPOSITION OF THE
CASE BEFORE US IS TO REMAND TO THE DISTRICT COURT FOR ADDITIONAL
FINDINGS.  /2/  WHILE THE DISTRICT COURT FOUND THAT "(FOR MANY YEARS
PRIOR TO 1961" LANG YARD WAS THE ESTABLISHED TERMINAL POINT FOR
REPORTING TO DUTY, THAT FINDING ALONE WOULD NOT SATISFY A SUBJECTIVE
TEST IN LIGHT OF SUBSEQUENT EVENTS THAT MAY HAVE NEGATIVED ANY
UNDERSTANDING THAT MIGHT HAVE EXISTED PRIOR TO 1961.  /3/  IN 1961 THE
SHORE LINE ADVISED THE UNION OF A CONTEMPLATED SHIFTING OF REPORTING TO
ITS TRENTON TERMINAL SOME 30 MILES NORTH.  THE PROPOSAL APPARENTLY MET
WITH EMPLOYEE RESISTANCE AND THE UNION SERVED A SEC. 6 NOTICE SEEKING
TO MODIFY THE AGREEMENT WITH THE RAILROAD.  BY 1963 THE PARTIES HAD
EXHAUSTED THE STATUTORY MEDIATION ROUTE WITHOUT RECONCILING THEIR
DIFFERENCES AND THE MEDIATION BOARD RECOMMENDED ARBITRATION TO BREAK
THE IMPASSE.  THIS PROPOSAL WAS REJECTED BY THE COMPANY WHICH DECLARED
THE DISPUTE MOOT SINCE, BY THAT TIME, IT HAD ABANDONED ITS TRENTON
PROJECT.  MEANWHILE, THE COMPANY EMBARKED ON A PRACTICE OF TRANSPORTING
EMPLOYEES AT ITS OWN EXPENSE AND ON COMPANY TIME FROM ITS DEAROAD
TERMINAL, 11 MILES NORTH OF TRENTON, A PRACTICE WHICH IS THE SUBJECT OF
A SEPARATE SEC. 6 NOTICE. 

IN MY OPINION A REMAND IS CALLED FOR TO DETERMINE WHETHER THE
COMPANY'S VOLUNTARY ABANDONMENT OF ITS TRENTON PROJECT, COUPLED WITH
ITS UNDERTAKING TO TRANSPORT EMPLOYEES FROM DEAROAD AT ITS OWN COST AND
THE LONG-ESTABLISHED PRACTICE PRIOR TO 1961, AMOUNTED TO ACCEPTANCE IN
PRINCIPLE OF LANG YARD AS THE REPORTING LOCATION. 

FOR THAT REASON I RESPECTFULLY DISSENT FROM THE COURT'S AFFIRMANCE
OF THE COURT OF APPEALS. 

/1/  THE MAJORITY FIRST ANNOUNCES A TEST LOOKING TO "ACTUAL,
OBJECTIVE WORKING CONDITIONS," ANTE, AT 153.  THIS IS LATER QUALIFIED
BY A DURATIONAL REQUIREMENT, BUT NO GENERAL PRINCIPLE OF DECISION IS
SET FORTH. 

/2/  WHILE THE DISTRICT COURT AND THE COURT OF APPEALS BOTH PROPERLY
REJECTED PETITIONER'S THEORY, RESTRICTING SEC. 6 TO TERMS EMBODIED IN A
WRITTEN AGREEMENT, IT IS BY NO MEANS CLEAR TO ME PRECISELY WHAT
STANDARD THEY FOLLOWED IN CONCLUDING THAT THE ACT WAS APPLICABLE. 

/3/  THE DISTRICT COURT, AS I READ ITS FINDINGS, DOES NOT APPEAR TO
HAVE CONSIDERED THE POSSIBLE IMPACT OF THE TRAIN OF EVENTS REVEALED BY
THE RECORD IN CONNECTION WITH 1961-1963 PROCEEDINGS BEFORE THE BOARD. 

FRANCIS M. SHEA ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE RALPH J. MOORE, JR., DAVID W. MILLER, JAMES A. WILCOX, AND
JOHN M. CURPHEY. 

RICHARD R. LYMAN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS CLARENCE M. MULHOLLAND. 

MILTON KRAMER FILED A BRIEF FOR THE RAILWAY LABOR EXECUTIVES'
ASSOCIATION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :




















CITY OF CHICAGO V. UNITED STATES, 396 U.S. 162 


       CITY OF CHICAGO ET AL. V. UNITED STATES ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS

        NO. 101.  ARGUED NOVEMBER 20, 1969-- DECIDED DECEMBER 9,

  1969  /0/ 


ORDERS OF THE INTERSTATE COMMERCE COMMISSION DISCONTINUING
INVESTIGATIONS CONDUCTED UNDER SEC. 13A(1) OF THE INTERSTATE COMMERCE
ACT WITH REGARD TO THE NOTICE OF RAIL CARRIERS TO TERMINATE INTERSTATE
PASSENGER SERVICES HELD JUDICIALLY REVIEWABLE ON THE COMPLAINT OF
AGGRIEVED PERSONS.  PP. 164-167. 

294 F.SUPP.  1103 AND 1106, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THESE CASES IS WHETHER ORDERS OF THE INTERSTATE
COMMERCE COMMISSION DISCONTINUING INVESTIGATIONS RESPECTING THE NOTICE
OF RAIL CARRIERS TO TERMINATE OR CHANGE THE OPERATION OR SERVICES OF
INTERSTATE PASSENGER TRAINS ARE JUDICIALLY REVIEWABLE ON THE COMPLAINT
OF AGGRIEVED PERSONS. 

571, 49 U.S.C. 13A(1), PROVIDES, WITH DETAILS NOT IMPORTANT HERE, THAT
A RAIL CARRIER MAY FILE NOTICE OF SUCH DISCONTINUANCE OR CHANGE WITH
THE COMMISSION AND THAT WITHIN 30 DAYS THE COMMISSION MAY MAKE AN
INVESTIGATION OF THE PROPOSED DISCONTINUANCE OR CHANGE.  APART FROM
INTERIM RELIEF, THE COMMISSION MAY ORDER CONTINUANCE OF THE OPERATION
AND SERVICE FOR A PERIOD NOT TO EXCEED ONE YEAR.  /1/  ONE OF THE
PRESENT CASES AND EVANSVILLE, INDIANA, DISCONTINUED BY THE CHICAGO &
EASTERN ILLINOIS RAILROAD CO., 331 I.C.C. 447, AND THE OTHER INVOLVES
TWO INTERSTATE PASSENGER TRAINS BETWEEN NEW ORLEANS AND CINCINNATI
DISCONTINUED BY THE LOUISVILLE & NASHVILLE RAILROAD CO., 333 I.C.C.
720. 

IN EACH CASE THE COMMISSION, ADDRESSING ITSELF TO THE STANDARDS IN
SEC. 13A(1), FOUND THAT CONTINUED OPERATION OF THE TRAINS WAS NOT
REQUIRED BY PUBLIC CONVENIENCE AND NECESSITY AND THAT CONTINUED
OPERATION WOULD UNDULY BURDEN INTERSTATE COMMERCE.  IT THEREUPON
ENTERED IN EACH CASE AN ORDER TERMINATING ITS INVESTIGATION OF THE
PROPOSED DISCONTINUANCE. 

APPELLANTS IN EACH CASE-- CITIES, STATE REGULATORY AGENCIES, AND
OTHER INTERESTED PARTIES-- BROUGHT THESE SUITS BEFORE THE SAME THREE
JUDGE COURT TO REVIEW THE COMMISSION'S DECISIONS.  IT IS PROVIDED BY 28
U.S.C. 1336(A): 

     "EXCEPT AS OTHERWISE PROVIDED BY ACT OF CONGRESS, THE DISTRICT

  COURTS SHALL HAVE JURISDICTION OF ANY CIVIL ACTION TO ENFORCE,

  ENJOIN, SET ASIDE, ANNUL OR SUSPEND IN WHOLE OR IN ANY PART, ANY

  ORDER OF THE INTERSTATE COMMERCE COMMISSION." 

THE DISTRICT COURT HELD THAT DECISIONS TERMINATING INVESTIGATIONS
UNDER SEC. 13A(1) ARE NOT "ORDERS" WITHIN THE MEANING OF 28 U.S.C.
1336(A).  /2/  294 F.SUPP.  1103, 1106.  THE CASES ARE HERE ON DIRECT
APPEAL, 28 U.S.C. 1253, 2325, AND WE NOTED PROBABLE JURISDICTION.  395
U.S. 957. 

AS STATED IN ABBOTT LABORATORIES V. GARDNER, 387 U.S. 136, 140, WE
START WITH THE PRESUMPTION THAT AGGRIEVED PERSONS MAY OBTAIN REVIEW OF
ADMINISTRATIVE DECISIONS UNLESS THERE IS "PERSUASIVE REASON TO BELIEVE"
THAT CONGRESS HAD NO SUCH PURPOSE.  CERTAINLY UNDER SEC. 13A(1) THE
CARRIER, IF OVERRULED BY THE COMMISSION, COULD OBTAIN REVIEW.  WE CAN
FIND NO TALISMANIC SIGN INDICATING THAT CONGRESS DESIRED TO DENY REVIEW
TO OPPONENTS OF INTERSTATE DISCONTINUANCES ALONE. 

DESIGNED TO SUPERSEDE THE PRIOR CONFUSED AND TIME-CONSUMING PROCEDURE
UNDER WHICH THE STATES SUPERVISED THE DISCONTINUANCE OF PASSENGER
TRAINS.  ACCORDINGLY, CONGRESS PROVIDED A UNIFORM FEDERAL SCHEME TO
TAKE THE PLACE OF THE FORMER PROCEDURE.  /3/  A SINGLE FEDERAL STANDARD
WAS TO GOVERN TRAIN DISCONTINUANCES WHETHER INTERSTATE OR INTRASTATE,
THOUGH THE PROCEDURE OF SEC. 13A(1) FOR DISCONTINUANCE OF AN INTERSTATE
TRAIN WAS MADE SOMEWHAT DIFFERENT FROM THE PROCEDURE FOR DISCONTINUANCE
OF INTRASTATE TRAINS.  /4/  BUT THE COMMISSION IS TO HAVE THE FINAL SAY
IN EACH CASE AND "PRECISELY THE SAME SUBSTANTIVE STANDARD" NOW GOVERNS
DISCONTINUANCE OF EITHER INTERSTATE OR INTRASTATE OPERATIONS.  SOUTHERN
R. CO. V. NORTH CAROLINA, 376 U.S. 93, 103. 

WHETHER THE COMMISSION SHOULD MAKE AN INVESTIGATION OF A SEC. 13A(1)
DISCONTINUANCE IS OF COURSE WITHIN ITS DISCRETION, A MATTER WHICH IS
NOT REVIEWABLE.  NEW JERSEY V. UNITED STATES, 168 F.SUPP.  324, AFF'D,
359 U.S. 27.  BUT WHEN THE COMMISSION UNDERTAKES TO INVESTIGATE, IT IS
UNDER A STATUTORY MANDATE: 

     "WHENEVER AN INVESTIGATION SHALL BE MADE BY SAID COMMISSION,
IT

  SHALL BE ITS DUTY TO MAKE A REPORT IN WRITING IN RESPECT THERETO,

  WHICH SHALL STATE THE CONCLUSIONS OF THE COMMISSION, TOGETHER

 WITH ITS DECISION, ORDER, OR REQUIREMENT IN THE PREMISES . . .

  ."  49 U.S.C. 14(1). 

A DECISION TO INVESTIGATE INDICATES THAT A SUBSTANTIAL QUESTION
EXISTS UNDER THE STATUTORY STANDARDS.  THE COMMISSION'S REPORT
THEREFORE DEALS WITH THE MERITS.  WE CANNOT SAY THAT AN ANSWER THAT
DISCONTINUANCE SHOULD NOT BE ALLOWED IS AGENCY "ACTION," WHILE AN
ANSWER SAYING THE REVERSE IS AGENCY "INACTION."  THE TECHNICAL FORM OF
THE ORDER IS IRRELEVANT.  IN EACH CASE THE COMMISSION IS DECIDING THE
MERITS.  THE PRESENT CASES ARE KIN TO THE "NEGATIVE ORDERS"  /5/  WHICH
WE DEALT WITH IN ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S.
125, 142-143: 

     "AN ORDER OF THE COMMISSION DISMISSING A COMPLAINT ON THE

  MERITS AND MAINTAINING THE STATUS QUO IS AN EXERCISE OF

  ADMINISTRATIVE FUNCTION, NO MORE AND NO LESS, THAN AN ORDER

  DIRECTING SOME CHANGE IN STATUS.  THE NATURE OF THE ISSUES

  FORECLOSED BY THE COMMISSION'S ACTION AND THE NATURE OF THE

  ISSUES LEFT OPEN, SO FAR AS THE REVIEWING POWER OF COURTS IS

  CONCERNED, ARE THE SAME . . . . WE CONCLUDE, THEREFORE, THAT ANY

DISTINCTION, AS SUCH, BETWEEN 'NEGATIVE' AND 'AFFIRMATIVE'

  ORDERS, AS A TOUCHSTONE OF JURISDICTION TO REVIEW THE

 COMMISSION'S ORDERS, SERVES NO USEFUL PURPOSE, AND INSOFAR AS

  EARLIER DECISIONS HAVE BEEN CONTROLLED BY THIS DISTINCTION, THEY

  CAN NO LONGER BE GUIDING." 

THE DISTRICT COURT REASONED THAT SINCE "THE STATUTE IS SELF
IMPLEMENTING," ONLY AN "ORDER REQUIRING ACTION IS REVIEWABLE.  294
F.SUPP.,AT 1106.  BUT THAT THEORY IS OF THE VINTAGE WE DISCARDED IN
ROCHESTER TELEPHONE. 

              REVERSED. 

/0/  TOGETHER WITH NO. 102, CITY OF CHICAGO ET AL. V. UNITED STATES
ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

/1/  SECTION 13A(2), APPLICABLE TO DISCONTINUANCE OF INTRASTATE
TRAINS, PROVIDES THAT WHERE A STATE BARS DISCONTINUANCE OR CHANGE IN
OPERATION OR SERVICE OF A TRAIN, OR WHERE THE STATE AUTHORITY HAS NOT
ACTED ON A CARRIER'S APPLICATION FOR SUCH DISCONTINUANCE OR CHANGE
WITHIN 120 DAYS, THE CARRIER MAY PETITION THE COMMISSION FOR A GRANT OF
SUCH AUTHORITY. 

/2/  THERE IS A CONFLICT AMONG THE DISTRICT COURTS.  MINNESOTA V.
UNITED STATES, 238 F.SUPP.  107 (D.C. MINN.), AND NEW HAMPSHIRE V.
BOSTON & MAINE CORP., 251 F.SUPP.  421 (D.C.N.H.), ARE IN ACCORD WITH
THE DISTRICT COURT IN THE INSTANT CASES.  OPPOSED TO THAT VIEW ARE
VERMONT V. BOSTON & MAINE CORP., 269 F.SUPP.  80 (D.C. VT.), AND NEW
YORK V. UNITED STATES, 299 F.SUPP.  989 (D.C.N.D.N.Y.).  AND SEE CITY
OF WILLIAMSPORT V. UNITED STATES, 273 F.SUPP.  899, 282 F.SUPP.  46
(D.C. M.D. PA.), AFF'D, 392 U.S. 642. 

/3/  "WITHOUT RECITING INDIVIDUAL CASES THE SUBCOMMITTEE IS
SATISFIED THAT STATE REGULATORY BODIES ALL TOO OFTEN HAVE BEEN
EXCESSIVELY CONSERVATIVE AND UNDULY REPRESSIVE IN REQUIRING THE
MAINTENANCE OF UNECONOMIC AND UNNECESSARY SERVICES AND FACILITIES. 
EVEN WHEN ALLOWING THE DISCONTINUANCE OR CHANGE OF A SERVICE OR
FACILITY, THESE GROUPS HAVE FREQUENTLY DELAYED DECISIONS BEYOND A
REASONABLE TIME LIMIT.  IN MANY SUCH CASES, STATE REGULATORY
COMMISSIONS HAVE SHOWN A DEFINITE LACK OF APPRECIATION FOR THE SERIOUS
IMPACT ON A RAILROAD'S FINANCIAL CONDITION RESULTING FROM PROLONGED
LOSS-PRODUCTING OPERATIONS. 

"TO IMPROVE THIS SITUATION, THE SUBCOMMITTEE PROPOSES TO GIVE THE
INTERSTATE COMMERCE COMMISSION JURISDICTION IN THE FIELD OF
DISCONTINUANCE OR CHANGE OF RAIL SERVICES AND FACILITIES SIMILAR TO THE
JURISDICTION IT NOW HAS OVER INTRASTATE RATES UNDER SECTION 13 OF THE
INTERSTATE COMMERCE ACT SO THAT WHEN CALLED UPON TO DO SO IT MAY DEAL
WITH SUCH MATTERS THAT IMPOSE AN UNDUE BURDEN ON INTERSTATE COMMERCE. 
THIS, THE SUBCOMMITTEE BELIEVES, WOULD PROTECT AND FURTHER THE BROAD
PUBLIC INTEREST IN A SOUND TRANSPORTATION SYSTEM AND WOULD PREVENT
UNDUE IMPORTANCE BEING ATTACHED TO MATTERS OF A LOCAL NATURE."  S. REP.
NO. 1647, 85TH CONG., 2D SESS., 22.  FOR A REVIEW OF THE LEGISLATIVE
HISTORY OF SEC. 13A(2), SEE SOUTHERN R. CO. V. NORTH CAROLINA, 376 U.S.
93, 100-103. 

/4/  SEE N. 1, SUPRA. 

/5/  THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 551(6) (1964 ED.,
SUPP IV), DEFINES "ORDER" AS INCLUDING A "NEGATIVE" FORM OF "A FINAL
DISPOSITION" BY AGENCY ACTION.  AND THAT KIND OF "ORDER" IS SUBJECT TO
JUDICIAL REVIEW.  5 U.S.C. 551(13), 701(B)(2), 702 (1964 ED., SUPP.
IV). 

WHEN CARRIERS FILE NEW RATES, THE COMMISSION HAS AUTHORITY ON ITS
OWN INITIATIVE OR ON COMPLAINT TO MAKE AN INVESTIGATION EITHER WITH OR
WITHOUT SUSPENSION OF THE NEW RATES.  49 U.S.C. 15(7).  WHERE THE
COMMISSION FINDS THE PROPOSED RATES LAWFUL, ITS ORDER READS:  "(THE
INVESTIGATION PROCEEDINGS (ARE) DISCONTINUED."  SEE EASTERN CENTRAL
MOTOR CARRIERS ASSN. V. BALTIMORE & O.R. CO., 314 I.C.C. 5, 51.  SUCH
ORDERS ARE REVIEWABLE.  COOPER-JARRETT, INC. V. UNITED STATES, 226
F.SUPP.  318, AFF'D, 379 U.S. 6. 

GORDON P. MACDOUGALL ARGUED THE CAUSE FOR APPELLANTS IN BOTH CASES. 
WITH HIM ON THE BRIEF WERE RAYMOND F. SIMON, CHARLES E. GRIFFITH III,
ROBERT E. KENDRICK, ARTHUR K. BOLTON, HAROLD N. HILL JR., J. ROBERT
COLEMAN, EDWARD J. HICKEY, JR., WILLIAM G. MAHONEY, BERNARD RANE, MARK
GOLDSTEIN, EUGENE W. WARD, CHESTER L. RIGSBY, WELDON A. COUSINS, AND
LEON M. DESPRES.  HOWARD E. SHAPIRO ARGUED THE CAUSE FOR THE UNITED
STATES ET AL. URGING REVERSAL IN BOTH CASES.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
AND ROBERT W. GINNANE. 

JAMES. W. HOELAND ARGUED THE CAUSE FOR APPELLEES CHICAGO & EASTERN
ILLINOIS RAILROAD CO. ET AL. IN BOTH CASES.  WITH HIM ON THE BRIEF WERE
CLIFFORD T. COOMES, JOSEPH L. LENIHAN, HARRY R. BEGLEY, AND P. C.
MULLEN. 

PAUL RODGERS FILED A BRIEF FOR THE NATIONAL ASSOCIATION OF
REGULATORY UTILITY COMMISSIONERS AS AMICUS CURIAE URGING REVERSAL IN
BOTH CASES. 
..END :



ZUBER V. ALLEN, 396 U.S. 168 


       ZUBER ET AL. V. ALLEN ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

        NO. 25.  ARGUED OCTOBER 16, 1969-- DECIDED DECEMBER 9, 1969

           /0/ 


RESPONDENT VERMONT DAIRY FARMERS ("COUNTRY, MILK PRODUCERS") BROUGHT
THIS ACTION TO INVALIDATE THE SO-CALLED FARM LOCATION DIFFERENTIAL
PROVIDED FOR BY ORDER OF THE SECRETARY OF AGRICULTURE AS CONTRARY TO
THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937.  THE EFFECT OF THE
ORDER IS TO REQUIRE MILK DISTRIBUTORS TO PAY MILK PRODUCERS SITUATED
CLOSE TO MILK MARKETING AREAS ("NEARBY" FARMERS) HIGHER PRICES THAN ARE
PAID TO PRODUCERS LOCATED AT GREATER DISTANCES FROM SUCH AREAS.  IN THE
1920'S, PRIOR TO FEDERAL REGULATION, NEARBY FARMERS RECEIVED HIGHER
PRICES FOR THEIR MILK IN THE BOSTON AREA THAN FARMERS AT MORE DISTANT
POINTS.  THE 1935 AMENDMENT TO THE AGRICULTURAL ADJUSTMENT ACT, CARRIED
FORWARD INTO SEC. 8(C) OF THE AGRICULTURAL MARKETING AGREEMENT ACT OF
1937, PROVIDES, IN PART, FOR THE PAYMENT TO ALL PRODUCERS "DELIVERING
MILK TO ALL HANDLERS OF UNIFORM PRICES FOR ALL MILK . . . SUBJECT ONLY
TO ADJUSTMENTS FOR (A) VOLUME, MARKET, AND PRODUCTION DIFFERENTIALS
CUSTOMARILY APPLIED BY THE HANDLERS SUBJECT TO SUCH ORDER, (B) THE
GRADE OR QUALITY OF THE MILK DELIVERED, (C) THE LOCATIONS AT WHICH
DELIVERY OF SUCH MILK IS MADE."  THE DEPARTMENT OF AGRICULTURE
REGULATIONS PROVIDE A PRICE DIFFERENTIAL FOR "NEARBY" FARMERS, AND A
LESSER DIFFERENTIAL FOR INTERMEDIATE NEARBY ZONES.  THE DISTRICT COURT
GRANTED AN INJUNCTION AGAINST FURTHER PAYMENTS OF THE DIFFERENTIALS,
AND THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE STATUTORY SCHEME, WHICH WAS TO PROVIDE UNIFORM PRICES TO ALL
PRODUCERS IN THE MARKETING.AREA, SUBJECT ONLY TO SPECIFICALLY
ENUMERATED ADJUSTMENTS, CONTEMPLATED THAT "MARKET DIFFERENTIALS . . .
CUSTOMARILY APPLIED" WOULD BE BASED ON COST ADJUSTMENTS.  PP. 179-187. 

(A) THE PARTICULARITY AND SPECIFICITY OF THE ENUMERATED
DIFFERENTIALS NEGATE THE CONCLUSION THAT CONGRESS WAS THINKING ONLY IN
TERMS OF HISTORICAL CONSIDERATIONS.  P. 183. 

(B) THE OTHER STATUTORY DIFFERENTIALS, FOR "VOLUME," "GRADE OR
QUALITY," "LOCATION," AND "PRODUCTION," ALL COMPENSATE THE PRODUCER FOR
PROVIDING AN ECONOMIC SERVICE BENEFITING THE MILK HANDLER.  PP. 183
184. 

(C) IN A STATUTE WHOSE PURPOSE WAS TO AVOID THE INFIRMITY OF THE
OVERBOARD DELEGATION OF THE AGRICULTURE ADJUSTMENT ACT, IT WOULD HAVE
BEEN SIMPLE TO INCLUDE "NEARBY" PAYMENTS IN THE LIST OF ENUMERATED
DIFFERENTIALS, OR AT LEAST TO ALLUDE TO THEM IN THE DRAFTSMEN'S
REPORT.  P. 185. 

2.  THE "NEARBY" DIFFERENTIALS DO NOT FALL INTO THE CATEGORY OF THE
PERMISSIBLE ADJUSTMENTS, WHICH ARE LIMITED TO COMPENSATION FOR
RENDERING AN ECONOMIC SERVICE, AND NEITHER THE SECRETARY OF AGRICULTURE
NOR THE "NEARBY" FARMER PETITIONERS HAVE ADVANCED ANY ECONOMIC
JUSTIFICATIONS FOR THEM THAT HAVE SUBSTANTIAL RECORD SUPPORT.  PP. 188
191. 

3.  THIS HOLDING DOES NOT DEPART FROM THE COURT'S PRECEDENTS. 
UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533, DISTINGUISHED.  TO
THE EXTENT THAT GREEN VALLEY CREAMERY V. UNITED STATES, 108 F.2D 342,
CONTRAVENES THIS HOLDING, IT IS DISAPPROVED.  PP. 191-192. 

4.  WHILE ACCORDING GREAT WEIGHT TO A DEPARTMENT'S CONTEMPORANEOUS
CONSTRUCTION OF ITS OWN ENABLING LEGISLATION, THE COURT CANNOT ABDICATE
ITS ULTIMATE RESPONSIBILITY TO CONSTRUE THE STATUTORY LANGUAGE.  PP.
192-194. 

5.  ALTHOUGH THE SECRETARY'S ORDERS HAVE BEEN SPECIFICALLY APPROVED
BY THE FARMERS CONCERNED IN ACCORDANCE WITH SEC. 9(B)(I) OF THE ACT,
SUCH APPROVAL DOES NOT LEGITMIZE THE REGULATION WHICH IS NOT AUTHORIZED
BY STATUTE.  PP. 195-196. 

6.  A REVERSAL FOR TRIAL ON THE MERITS IS NOT WARRANTED SINCE THE
DEPARTMENT OF AGRICULTURE ACTED ON A FORMAL RECORD, AND A REMAND TO THE
SECRETARY IS INAPPROPRIATE IN THE ABSENCE OF A REQUEST BY THE
GOVERNMENT, WHICH HAS ADVANCED NO NEW THEORY FOR SUSTAINING THE
REGULATION.  PP. 196-197. 

7.  THE COURT OF APPEALS' AWARD TO "NEARBY" FARMER PETITIONERS OF
THE ESCROWED DIFFERENTIAL PAYMENTS COLLECTED BEFORE THE DISTRICT COURT
ENTERED FINAL JUDGMENT WILL NOT BE DISTURBED.  P. 197. 

131 U.S.APP.D.C. 109, 402 F.2D 660, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT BY RESPONDENT VERMONT DAIRY FARMERS, "COUNTRY"
MILK PRODUCERS, SEEKING A JUDGMENT INVALIDATING AS CONTRARY TO THE
AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, AS AMENDED, 50 STAT. 246,
7 U.S.C. 601 ET SEQ. (1964 ED. AND SUPP. IV), THE SO-CALLED FARM
LOCATION DIFFERENTIAL PROVIDED FOR BY ORDER OF THE SECRETARY OF
AGRICULTURE.  /1/  THE EFFECT OF THAT ORDER IS TO REQUIRE MILK
DISTRIBUTORS TO PAY TO MILK PRODUCERS SITUATED AT CERTAIN DISTANCES
FROM MILK MARKETING AREAS, "NEARBY" FARMERS, HIGHER PRICES THAN ARE
PAID TO PRODUCERS LOCATED AT GREATER DISTANCES FROM SUCH AREAS.  THE
DISTRICT COURT ISSUED A PRELIMINARY INJUNCTION ON JANUARY 16, 1967,
AGAINST FURTHER PAYMENTS AND ON REPSPONDENTS' MOTION FOR SUMMARY
JUDGMENT TRANSFORMED ITS DECREE INTO A PERMANENT INJUNCTION ON JUNE 15,
1967.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
AFFIRMED.  131 U.S.APP.D.C. 109, 402 F.2D 660 (1968).  WE GRANTED
CERTIORARI TO RESOLVE THE IMPORTANT ISSUE OF STATUTORY CONSTRUCTION
INVOLVED IN THIS ASPECT OF THE ADMINISTRATION OF THE FEDERAL MILK
REGULATION PROGRAM.  394 U.S. 958 (1969). 

        I

        BACKGROUND 

ONCE AGAIN THIS COURT MUST TRAVERSE THE LABYRINTH OF THE FEDERAL
MILK MARKETING REGULATION PROVISIONS.  /2/  WHILE PREVIOUS DECISIONS
HAVE OUTLINED THE OPERATION OF THE STATUTE AND THE PERTINENT
REGULATIONS, A BRIEF ODYSSEY THROUGH THE ECONOMIC AND REGULATORY
BACKGROUND IS ESSENTIAL PERSPECTIVE FOR FOCUSING THE ISSUE NOW BEFORE
THE COURT. 

    A. THE ECONOMICS OF THE MILK INDUSTRY 

THE TWO DISTINCTIVE AND ESSENTIAL PHENOMENA OF THE MILK INDUSTRY ARE
A BASIC TWO-PRICE STRUCTURE THAT PERMITS A HIGHER RETURN FOR THE SAME
PRODUCT, DEPENDING ON ITS ULTIMATE USE, AND THE CYCLICAL CHARACTERISTIC
OF PRODUCTION. 

MILK HAS ESSENTIALLY TWO END USES:  AS A FLUID STAPLE OF DAILY
CONSUMER DIET, AND AS AN INGREDIENT IN MANUFACTURED DAIRY PRODUCTS SUCH
AS BUTTER AND CHEESE.  MILK USED IN THE CONSUMER MARKET HAS
TRADITIONALLY COMMANDED A PREMIUM PRICE, EVEN THOUGH IT IS OF NO HIGHER
QUALITY THAN MILK USED FOR MANUFACTURE.  WHILE COST DIFFERENCES ACCOUNT
FOR PART OF THE DISCREPANCY IN PRICE, THEY DO NOT EXPLAIN THE ENTIRE
GAP.  AT THE SAME TIME THE MILK INDUSTRY IS CHARACTERIZED BY PERIODS OF
SEASONAL OVER-PRODUCTION.  THE WINTER MONTHS ARE LOW IN YIELD AND
CONVERSELY THE SUMMER MONTHS ARE FERTILE.  IN ORDER TO MEET FLUID
DEMAND WHICH IS RELATIVELY CONSTANT, SUFFICIENTLY LARGE HERDS MUST BE
MAINTAINED TO SUPPLY WINTER NEEDS.  THE RESULT IS OVERSUPPLY IN THE
MORE FRUITFUL MONTHS.  THE HISTORICAL TENDENCY PRIOR TO REGULATION WAS
FOR MILK DISTRIBUTORS, "HANDLERS," TO TAKE ADVANTAGE OF THIS SURPLUS TO
OBTAIN BARGAINS DURING GLUT PERIODS.  MILK CAN BE OBTAINED FROM DISTANT
SOURCES AND HANDLERS CAN AFFORD TO ABSORB TRANSPORTATION COSTS AND
STILL PAY MORE TO OUTLYING FARMERS WHOSE TRADITIONAL OUTLET IS THE
MANUFACTURING MARKET.  /3/  TO MAINTAIN INCOME FARMERS INCREASE
PRODUCTION AND THE DISEQUILIBRIUM SNOWBALLS. 

TO PROTECT AGAINST MARKET VICISSITUDES, FARMERS IN THE EARLY 1920'S
FORMED COOPERATIVES.  THESE COOPERATIVES WERE EFFECTIVE IN ELIMINATING
THE SELF-DEFEATING OVER-PRODUCTION BY POOLING THE MILK SUPPLY AND
REFUSING TO DEAL WITH HANDLERS EXCEPT ON A COLLECTIVE BASIS.  /4/
DURING THE 1920'S ERA OF RELATIVE MARKET STABILITY THE NEARBY FARMERS
ENJOYED PREMIUM PRICES FOR THEIR PRODUCT.  THESE FAVORABLE PRICES WERE
APPARENTLY ATTRIBUTABLE TO REDUCED TRANSPORTATION COSTS AND ALSO THE
NEARBY FARMER'S HISTORIC POSITION AS A FLUID SUPPLIER.  /5/

        B. THE FIRST FEDERAL PROGRAM 

THE DROP IN COMMODITY PRICES DURING THE DEPRESSION YEARS DESTROYED
THE EQUILIBRIUM OF THE 1920'S AND UTTER CHAOS ENSUED.  CONGRESS, IN AN
EFFORT TO RESTORE ORDER TO THE MARKET AND BOOST THE PURCHASING POWER OF
FARMERS, ENACTED THE LICENSING PROVISIONS OF THE AGRICULTURAL
ADJUSTMENT ACT, 48 STAT. 31, 35.  UNDER SEC. 8(3) THE SECRETARY OF
AGRICULTURE WAS EMPOWERED 

"(TO ISSUE LICENSES PERMITTING PROCESSORS, ASSOCIATIONS OF

  PRODUCERS, AND OTHERS TO ENGAGE IN THE HANDLING, IN THE CURRENT

  OF INTERSTATE OR FOREIGN COMMERCE, OF ANY AGRICULTURAL COMMODITY

  OR PRODUCT THEREOF, OR ANY COMPETING COMMODITY OR PRODUCT

  THEREOF.  SUCH LICENSES SHALL BE SUBJECT TO SUCH TERMS AND

  CONDITIONS, NOT IN CONFLICT WITH EXISTING ACTS OF CONGRESS OR

  REGULATIONS PURSUANT THERETO, AS MAY BE NECESSARY TO ELIMINATE

  UNFAIR PRACTICES OR CHARGES THAT PREVENT OR TEND TO PREVENT THE

  EFFECUTUATION OF THE DECLARED POLICY AND THE RESTORATION OF

  NORMAL ECONOMIC CONDITIONS IN THE MARKETING OF SUCH COMMODITIES

  OR PRODUCTS AND THE FINANCING THEREOF.  THE SECRETARY OF

  AGRICULTURE MAY SUSPEND OR REVOKE ANY SUCH LICENSE, AFTER DUE

 NOTICE AND OPPORTUNITY FOR HEARING, FOR VIOLATIONS OF THE TERMS

  OR CONDITIONS THEREOF . . . ." 

UNDER THE LICENSING SYSTEM BASE-RATING PLANS NOT UNLIKE THE PRIVATE
ARRANGEMENTS THAT OBTAINED IN THE 1920'S WERE ADOPTED.  /6/  PRODUCERS
WERE ASSIGNED BASES WHICH FIXED THE PERCENT OF THEIR OUTPUT THAT THEY
WOULD BE PERMITTED TO SELL AT THE CASS I PRICE THAT WAS PAID FOR FLUID
MILK.  /7/  THE VIABILITY OF THE LICENSING SCHEME WAS JEOPARDIZED,
HOWEVER, BY JUDICIAL DECISIONS DISAPPROVING A SIMILARLY BROAD
DELEGATION OF POWER UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT
PROVISIONS, 48 STAT. 195.  SCHECHTER POULTRY CORP. V. UNITED STATES,
295 U.S. 495 (1935).  WITH ITS AGRICULTURAL MARKETING PROGRAM RESTING
ON QUICKSAND, CONGRESS MOVED SWIFTLY TO ELIMINATE THE DEFECT OF
OVERBROAD DELEGATION AND TO SHORE UP THE VOID IN THE AGRICULTURAL
MARKETING PROVISIONS.  SECTION 8(3) OF THE 1933 ACT WAS AMENDED IN 1935
AND THE PERTINENT LANGUAGE HAS BEEN CARRIED FORWARD WITHOUT SIGNIFICANT
CHANGE INTO SEC. 8C OF THE PRESENT ACT.  AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937, 50 STAT. 246, AS AMENDED, 7 U.S.C. 608C (1964
ED. AND SUPP. IV).  /8/

        C. THE PRESENT REGULATORY SCHEME 

THE PRESENT SYSTEM, WHICH DIFFERS LITTLE IN SUBSTANCE FROM THE
SCHEME CONCEIVED IN 1937 FOR REGULATING THE BOSTON MARKET, /9/
PROVIDES FOR A UNIFORM MARKET PRICE PAYABLE TO ALL PRODUCERS BY ALL
HANDLERS.  /10/  PRICES ARE ESTABLISHED FOR CLASS I AND CLASS II USES. 
THE TOTAL VOLUME OF MILK CHANNELED INTO THE MARKET IN EACH CATEGORY IS
MILTIPLIED BY THE APPROPRIATE COEFFICIENT PRICE AND THE TWO RESULTS ARE
TOTALED AND THEN DIVIDED BY THE TOTAL NUMBER OF POUNDS SOLD.  THE
RESULT REPRESENTS THE AVERAGE VALUE OF MILK SOLD IN THE MARKETING AREA
AND IS THE BASIC "UNIFORM" PRICE.  WERE ALL PRODUCERS TO RECEIVE THIS
PRICE THEY WOULD SHARE ON AN EQUAL BASIS THE PROFITS OF CLASS I
MARKETING AND ASSUME EQUALLY THE COSTS OF DISPOSING OF THE ECONOMIC
SURPLUS IN THE CLASS II MARKET.  THE ACTUAL PRICE TO THE PRODUCER IS,
HOWEVER, THE "BLENDED" PRICE WHICH IS COMPUTED BY ADDING AND
SUBTRACTING CERTAIN SPECIAL DIFFERENTIALS PROVIDED FOR BY STATUTE AND
ORDER.  SEE 7 CFR 1001.64 (1969).  THE DEDUCTION FOR DIFFERENTIAL
PAYMENTS WITHHELD FOR THE BENEFIT OF NEARBY PRODUCERS REDUCES THE
UNIFORM "BLENDED" PRICE TO THOSE PRODUCERS INELIGIBLE TO COLLECT THIS
PARTICULAR ADJUSTMENT.  /11/  THE PROVISION IS CONTAINED IN SEC.
1001.72 OF THE ORDER AND PROVIDES: 

     "IN MAKING THE PAYMENTS TO PRODUCERS . . . EACH HANDLER SHALL

  ADD ANY APPLICABLE FARM LOCATION DIFFERENTIAL SPECIFIED IN THIS

  SECITON. 

     "(A) WITH RESPECT TO MILK RECEIVED FROM A PRODUCER WHOSE FARM

  IS LOCATED WITHIN ANY OF THE PLACES SPECIFIED IN THIS PARAGRAPH,

  THE DIFFERENTIAL SHALL BE 46 CENTS PER HUNDREDWEIGHT, UNLESS THE

  ADDITION OF 46 CENTS GIVES A RESULT GREATER THAN THE CLASS I

  PRICE DETERMINED UNDER 1001.60, 1001.62, AND 1001.63 WHICH IS

  EFFECTIVE AT THE PLANT AT WHICH THE MILK IS RECEIVED.  IN THAT

  EVENT THERE SHALL BE ADDED A RATE WHICH WILL PRODUCE THAT

  PRICE." 

A DIFFERENTIAL OF 23[ IS PROVIDED FOR DELIVERIES FROM FARMS IN
INTERMEDIATE NEARBY ZONES.  SEC. 1001.72(B). 

THE FOREGOING PROVISIONS APPEAR IN THE SO-CALLED 1964 MASSACHUSETTS
RHODE ISLAND ORDER, WHICH CONSOLIDATED INTO ONE REGION THE FOUR SUB
MARKETS WHICH WERE PREVIOUS REGULATED SEPARATELY UNDER THE SO-CALLED
FOUR "NEW ENGLAND" ORDERS:  THE 1951 BOSTON ORDER WHICH CARRIED FORWARD
THE ORDER ADOPTED FOR THE BOSTON AREA IN 1937; THE SPRINGFIELD ORDER
PROMULGATED IN 1949; AND THE SOUTHEASTERN NEW ENGLAND ORDER OF 1958. 
EACH ORDER INCLUDED A PROVISION FOR A NEARBY DIFFERENTIAL PAYMENT TO
FARMERS WITHIN A STATED RADIUS OF A DESIGNATED MARKET CENTER.  FOR
EXAMPLE THE DIFFERENTIAL UNDER THE BOSTON ORDER WAS PAYABLE TO FARMERS
LOCATED WITHIN A 40-MILE RADIUS OF THE STATE HOUSE IN BOSTON; A
SLIGHTLY LOWER DIFFERENTIAL WAS PAID TO FARMERS WITHIN AN 80-MILE
RADIUS.  UNDER THE 1964 ORDER THERE IS NO CENTRAL POINT FOR THE
COMPUTATION OF THE RADIUS FOR PAYMENT OF THE DIFFERENTIAL; THE
SECRETARY HAS RETAINED THE DIFFERENTIAL PROVISIONS AS THEY APPEARED IN
THE PREVIOUS FOUR ORDERS.  FARMERS WHO WOULD HAVE BEEN ENTITLED TO THE
DIFFERENTIAL UNDER ANY ONE OF THE PREVIOUS FOUR MARKETING REGULATIONS
CONTINUE TO RECEIVE THOSE PAYMENTS UNDER THE PRESENT ORDER.  THESE
NEARBY FARMERS ARE ELIGIBLE FOR THE DIFFERENTIAL ON ANY SHIPMENTS
WITHIN THE NEW ENGLAND MARKETING AREA, EVEN THOUGH THEIR MILK MAY
ACTUALLY BE USED OUTSIDE THE RADIUS OF THEIR PARTICULAR NEARBY ZONE. 

        II

        THE STATUTORY SCHEME 

THE FOUNDATION OF THE STATUTORY SCHEME IS TO PROVIDE UNIFORM PRICES
TO ALL PRODUCERS IN THE MARKETING AREA, SUBJECT ONLY TO SPECIFICALLY
ENUMERATED ADJUSTMENTS.  THE QUESTION BEOFRE THE COURT, STATED MOST
SIMPLY, IS WHETHER PAYMENT OF FARM LOCATION DIFFERENTIALS, SET FORTH
ABOVE, IS A PERMISSIBLE ADJUSTMENT UNDER SEC. 8C(5)(B) TO THE GENERAL
REQUIREMENT OF UNIFORMITY OF PRICE.  /12/ 

THE SECRETARY HAS IN THE PAST LABELED THE "NEARBY" DIFFERENTIAL A
"LOCATION" DIFFERENTIAL AND DEFENDED ITS INCLUSION IN HIS ORDERS ON
THAT GROUND.  THE JUSTIFICATION AND ARGUMENT ARE NOW, HOWEVER, PITCHED
IN A DIFFERENT BUT ONE OF THE NUMEROUS THEORIES ADVANCED BELOW, AND
PRESSED MOST VIGOROUSLY IN THE BLAIR V. FREEMAN LITIGATION (125
U.S.APP.D.C. 207, 370 F.2D 229 (1966)), AND IT NOW STRESSES THE
PROVISION IN SEC. 8C(5)(B) FOR "VOLUME, MARKET, AND PRODUCTION
DIFFERENTIALS CUSTOMARILY APPLIED BY THE HANDLERS SUBJECT TO SUCH
ORDER." 

WHILE THE PROPER RESOLUTION OF THE ISSUE IS BY NO MEANS SELF
EVIDENT, WE ARE PERSUADED THAT "MARKET . . . DIFFERENTIALS CUSTOMARILY
APPLIED" CONTEMPLATES COST ADJUSTMENTS.  THE PLAIN THRUST OF THE
FEDERAL STATUTE WAS TO REMOVE RUINOUS AND SELF-DEFEATING COMPETITION
AMONG THE PRODUCERS AND PERMIT ALL FARMERS TO SHARE THE BENEFITS OF
FLUID MILK PROFITS ACCORDING TO THE VALUE OF GOODS PRODUCED AND
SERVICES RENDERED.  THE GOVERNMENT'S PROPOSED READING OF THE ACT,
BOTTOMED, AS IT IS, ON THE HISTORICAL PAYMENT OF A PREMIUM TO NEARBY
FARMERS DURING THE MONOPOLISTIC ERA OF THE COOPERATIVE POOLS, WOULD
COME TO PERPETUATE ECONOMIC DISTORTION AND FREEZE THE MILK INDUSTRY
INTO THE COMPETITIVE STRUCTURE THAT PREVAILED DURING THE 1920'S. 

WITHOUT THE BENEFIT OF GOVERNMENT MUSCLE TO ELIMINATE CRIPPLING
PRICE WARFARE IN THE SUMMER MONTHS, NEITHER NEARBY NOR COUNTRY
PRODUCERS COULD SHARE IN THE MONOPOLY-TYPE PROFITS THAT ACCRUE FROM
FLUID MILK SALES.  ABSENT REGULATION ONLY THE HANDLERS, IF ANYONE,
WOULD STAND TO BENEFIT FROM THE "FLUID" MONOPOLY.  WHILE WE CANNOT
PROJECT WHAT WOULD BE THE CASE TODAY IF A FREE MARKET PREVAILED, WE
MIGHT WELL ANTICIPATE THAT THE NEARBY PRODUCERS' WINTER ADVANTAGES
WOULD BE NEGLIGIBLE IN VIEW OF REDUCED TRANSPORTATION COSTS AND MORE
RELIABLE REFRIGERATION.  THUS EVEN IN WINTER HANDLERS MIGHT BE FREE TO
PLAY NEARBY AND OUTLYING FARMERS AGAINST EACH OTHER SINCE HANDLERS
WOULD BE FREE OF THE LEVERAGE EXERCISED BY THE NEARBY COOPERATIVES
DURING THE 1920'S.  NEARBY PRODUCERS NOW SEEK THE BEST OF BOTH WORLDS. 
HAVING ACHIEVED THE SECURITY THAT COMES WITH REGULATION, THEY SEEK
UNDER A REGULATORY UMBRELLA TO APPROPRIATE MONOPOLY PROFITS THAT WERE
NEVER SECURE IN THE UNREGULATED MARKET. 

WE ARE RELUCTANT TO ATTRIBUTE SUCH INTENT TO CONGRESS AND, SIMPLY IN
THE NAME OF ADMINISTRATIVE EXPERTISE, TO FOLLOW A PATH NOT MARKED BY
THE LANGUAGE OF THE STATUTE.  INDEED, SUCH SIGNPOSTS AS MAY BE
DISCERNED FROM THE LEGISLATIVE HISTORY POINT IN A VERY DIFFERENT
DIRECTION.  THE LEGISLATIVE HISTORY STRONGLY SUGGESTS THAT "MARKET
DIFFERENTIALS," AS WELL AS ALL THE OTHER DIFFERENTIALS, CONTEMPLATED
PARTICULAR UNDERSTOOD ECONOMIC ADJUSTMENTS.  THE HOUSE REPORT, IN
DISCUSSING THE ALLOWABLE ADJUSTMENTS CHARACTERIZES THE MARKET
DIFFERENTIAL AS A PAYMENT OVER AND ABOVE THE TRANSPORTATION COSTS,
I.E., A LOCATION DIFFERENTIAL, FOR DELIVERY TO THE PRIMARY MARKET. 
/13/  THUS FARMERS WOULD SHARE WITH HANDLERS THE SAVINGS FROM BY
PASSING COUNTRY-STATION PROCESSING AND HANDLING THE MILK ONLY AT THE
CITY PLANT. 

THE SIGNIFICANCE OF THE LEGISLATIVE HISTORY EMERGES UPON STUDY OF
THE SUBSEQUENT ADMINISTRATIVE PRACTICE.  THE ORIGINAL BOSTON ORDER
OBSCURES THE MARKET DIFFERENTIAL PAYMENT BY PROVIDING IN PLACE OF A
LABELED ADJUSTMENT A TWO-PRICE STRUCTURE WHICH ALLOWED AN ADDITIONAL
18[ PER CWT. FOR CITY-DELIVERED MILK OVER AND ABOVE THE COSTS OF
TRANSPORTING THE MILK FROM THE COUNTRY PLANT.  HOWEVER, THE TESTIMONY
OF MR. APLIN FOR THE MARKET ADMINISTRATOR ERASES ANY DOUBT THAT THOSE
RESPONSIBLE FOR ADMINISTERING THE ACT FULLY UNDERSTOOD THE MEANING OF
THE COMMITTEE'S EXPLANATION OF MARKET DIFFERENTIAL.  /14/ 
SUBSEQUENT ORDERS HAVE COMBINED THE COUNTRY STATION HANDLING
ADJUSTMENT, PROPERLY THE MARKET DIFFERENTIAL, AND THE LOCATION
TRANSPORTATION DIFFERENTIAL INTO THE SO-CALLED ZONE DIFFERENTIAL. 
/15/ 

THE STATUTE BEFORE US DOES NOT CONTAIN A MANDATE PHRASED IN BROAD
AND PERMISSIVE TERMS.  CONGRESS HAS SPOKEN WITH PARTICULARITY AND
PROVIDED SPECIFICALLY ENUMERATED DIFFERENTIALS, WHICH NEGATIVES THE
CONCLUSION THAT IT WAS THINKING ONLY IN TERMS OF HISTORICAL
CONSIDERATIONS.  THE PREFATORY DISCUSSION IN THE HOUSE REPORT
EMPHASIZES THE CONGRESSIONAL PURPOSE TO CONFINE THE BOUNDARIES OF THE
SECRETARY'S DELEGATED AUTHORITY.  /16/  IN THESE CIRCUMSTANCES AN
ADMINISTRATOR DOES NOT HAVE "BROAD DISPENSING POWER."  SEE ADDISON V.
HOLLY HILL CO., 322 U.S. 607, 617 (1944).  THE CONGRESSIONAL PURPOSE IS
FURTHER ILLUMINED BY THE CHARACTER OF THE OTHER STATUTORY DIFFERENTIALS
FOR "VOLUME," "GRADE OR QUALITY," "LOCATION," AND "PRODUCTION,"  /17/
ALL OF WHICH COMPENSATE OR REWARD THE PRODUCER FOR PROVIDING AN
ECONOMIC SERVICE OF BENEFIT TO THE HANDLER.  /18/ 

THE GENERAL LANGUAGE OF THE COMMITTEE REPORT INDICATING THAT
CONGRESS INTENDED TO CARRY FORWARD THE BASIC REGULATORY APPROACH
ADOPTED UNDER THE 1933 ACT, FOLLOWING THE PRECEDENT OF THE 1920'S, IS
STRESSED BY THE DISSENT TO THIS OPINION.  THIS COMMITTEE LANGUAGE, IT
IS ARGUED, REINFORCES THE CONTINUITY CONNOTATIONS OF THE "CUSTOMARILY
APPLIED" LANGUAGE, A THRUST THAT IS NOT BLUNTED BY ANY SPECIFIC
LANGUAGE INDICATING A LEGISLATIVE PURPOSE TO TREAT ALL FARMERS
EQUALLY. 

LEGISLATIVE SILENCE IS A POOR BEACON TO FOLLOW IN DISCERNING THE
PROPER STATUTORY ROUTE.  FOR HERE THE LIGHT ILLUMINES TWO DIFFERENT
ROADS.  IF NEARBY PAYMENTS HAD THE NOTORIETY AND SIGNIFICANCE IN THE
MILK DISTRIBUTION INDUSTRY ATTRIBUTED TO THEM BY THE DISSENT, CONGRESS
COULD HAVE GIVEN ITS BLESSING BY CARVING OUT ANOTHER SPECIFIC EXCEPTION
TO THE UNIFORM PRICE REQUIREMENT.  IN AN ACT WHOSE VERY PURPOSE WAS TO
AVOID THE INFIRMITY OF OVERBROAD DELEGATION AND TO SET FORTH WITH
PARTICULARITY THE DETAILS FOR A COMPREHENSIVE REGULATORY SCHEME, IT
WOULD HAVE BEEN A SIMPLE MATTER TO INCLUDE IN A LIST OF ENUMERATED
DIFFERENTIALS, "NEARBY" PAYMENTS, OR AT LEAST ALLUDE TO THEM IN THE
REPORT OF THE DRAFTSMEN.  IT IS CLEAR THAT CONGRESS WAS NOT CONFERRING
UNTRAMMELED DISCRETION ON THE SECRETARY AND AUTHORIZING HIM TO PROCEED
IN A VACUUM.  THIS WAS THE VERY EVIL CONDEMNED BY THE COURTS THAT THE
1935 AMENDMENTS SOUGHT TO ERADICATE.  /19/  IT WOULD BE PERVERSE TO
ASSUME THAT CONGRESSIONAL DRAFTERS, IN ELIMINATING AMBIGUITY FROM THE
OLD ACT, /20/  WERE CARELESS IN LISTING THEIR EXCEPTIONS AND SELECTING
THE ILLUSTRATIONS FROM THE COMMITTEE REPORT FROM WHICH THEIR WORDS
WOULD ULTIMATELY DERIVE CONTENT.  /21/ 

WE CONSIDER OUR CONCLUSIONS IN NO WAY UNDERMINED BY THE COLLOQUY ON
THE FLOOR BETWEEN SENATOR COPELAND AND SENATOR MURPHY UPON WHICH THE
DISSENT PLACES SUCH EMPHASIS.  A COMMITTEE REPORT REPRESENTS THE
CONSIDERED AND COLLECTIVE UNDERSTANDING OF THOSE CONGRESSMEN INVOLVED
IN DRAFTING AND STUDYING PROPOSED LEGISLATION.  FLOOR DEBATES REFLECT
AT BEST THE UNDERSTANDING OF INDIVIDUAL CONGRESSMEN.  IT WOULD TAKE
EXTENSIVE AND THOUGHTFUL DEBATE TO DETRACT FROM THE PLAIN THRUST OF A
COMMITTEE REPORT IN THIS INSTANCE.  THERE IS NO INDICATION, HOWEVER,
THAT THE QUESTION OF NEARBY DIFFERENTIALS AND THE MEANING OF "MARKET .
. . DIFFERENTIALS CUSTOMARILY APPLIED" WERE PRECISELY CONSIDERED IN THE
FLOOR DIALOGUE.  THE EXCHANGE IS NOT ONLY BRIEF BUT ALSO INCONCLUSIVE
AS TO MEANING.  /22/  INDEED, SENATOR MURPHY APPARENTLY ACQUIESCED IN
SENATOR COPELAND'S IMPLIED CRITICISM OF THE STATUTE FOR PROVIDING
UNIFORM PRICES FOR DISTANT AND NEARBY PRODUCERS WITHIN THE MARKETING
REGION.  WHEN SENATOR COPELAND PURSUED HIS INQUIRY, ASKING WHETHER THE
ACT RECOGNIZED THE HIGHER COST FOR TAXES ON NEARBY LANDS, SENATOR
MURPHY MERELY RECITED THE DIFFERENTIAL PROVISIONS OF THE ACT AND
SUGGESTED THAT THEY "ADOPT THE PRESENT PRACTICE OF BUSINESS," BUT
CONSPICUOUSLY LACKING IS AN AFFIRMATIVE STATEMENT THAT ANY SPECIFIC
DIFFERENTIAL COVERED THESE COSTS.  THIS IS NOT IMPRESSIVE LEGISLATIVE
HISTORY ESPECIALLY IN LIGHT OF SENATOR MURPHY'S EARLIER AGREEMENT WITH
SENATOR COPELAND'S STATEMENT THAT "(THE PROVISIONS OF THE EQUALIZATION
. . . PROVIDE THAT A PRODUCER WHO IS PRODUCING HIS MILK ON FARMS NEAR
TO CITIES WOULD RECEIVE THE SAME PRICE FOR HIS PRODUCT AS A FARMER WHO
PRODUCES HIS MILK, SAY 40 OR 50 MILES AWAY FROM THE SAME COMMUNITY,"
AND THE SPECIFIC BUSINESS ILLUSTRATIONS OF THE HOUSE REPORT. 

        III

        SCOPE OF MARKET DIFFERENTIAL 

WHILE MARKET DIFFERENTIALS CUSTOMARILY APPLIED NEED NOT BE
RESTRICTED TO THE SOLE ILLUSTRATION IN THE HOUSE REPORT, THAT
ILLUSTRATION, TAKEN IN CONJUNCTION WITH THE DISCUSSION OF ALL THE
STATUTORY DIFFERENTIALS, SUGGESTS THAT THE PERMISSIBLE ADJUSTMENTS ARE
LIMITED TO COMPENSATION FOR RENDERING AN ECONOMIC SERVICE.  /23/  THE
CHALLENGED NEARBY DIFFERENTIALS DO NOT FALL INTO THIS CATEGORY.  /24/ 

NOR HAS THE SECRETARY ADVANCED ANY ECONOMIC JUSTIFICATION FOR THESE
DIFFERENTIAL PAYMENTS.  IT IS PLAIN FROM THE ADMINISTRATIVE RECORD THAT
THE NEARBY DIFFERENTIAL WAS INCLUDED IN THE ORIGINAL BOSTON ORDER AS A
RECOGNITION OF THE FAVORED POSITION OF NEARBY PRODUCERS IN THE FLUID
MARKET AND AS AN INDUCEMENT TO NEARBY FARMERS TO APPROVE THE
SECRETARY'S ORDER.  (J.A. 237.  /25/) THE ONLY SENSE IN WHICH THE
HANDLER MAY BE SAID TO GAIN ECONOMICALLY IS BY VIRTUE OF THE
ELIMINATION OF THE NEARBY PRODUCER AS A POTENTIAL COMPETITOR.  WHILE
THIS FACTOR IS MENTIONED IN THE FINDINGS ACCOMPANYING THE 1937 ORDER,
IT HAS NOT BEEN EMPHASIZED IN THE 1964 FINDINGS AND THE TESTIMONY AT
THE 1963 HEARINGS SUGGESTS THAT SUPPORT IN THE RECORD IS INDEED SCANT. 
THAT ENTRY OF THE NEARBYS INTO THE DISTRIBUTION MARKET WOULD BRING
UNWANTED COMPETITION, IS IRRELEVANT IF IT DOES NOT JEOPARDIZE MARKET
STABILITY.  WE THINK THE ANALYSIS OF THE COURT BELOW WAS CORRECT:  IF
THERE IS ANY ECONOMIC BENEFIT HERE, PRODUCERS SHOULD RECEIVE THEIR
COMPENSATION DIRECTLY FROM THE HANDLERS AND NOT OUT OF THE MARKETWIDE
POOL.  131 U.S.APP.D.C.,AT 114, 403 F.2D, AT 665. 

WHILE PETITIONER NEARBY FARMERS DO NOT CONCEDE SO READILY THE
ABSENCE OF ECONOMIC FOUNDATION FOR THE DIFFERENTIAL, NO JUSTIFICATIONS
ARE ADVANCED THAT FIND ANY SUBSTANTIAL SUPPORT IN THE RECORD.  THE
ALLUSION TO THE EVENNESS OF PRODUCTION ON NEARBY FARMS WOULD NOT
JUSTIFY THE EXCLUSIVE PAYMENT OF THIS DIFFERENTIAL TO NEARBY FARMERS. 
IF THE SECRETARY INTENDED A PRODUCTION DIFFERENTIAL, ALL PRODUCERS WHO
QUALIFY WOULD BE ELIGIBLE.  SOME AMICI AND PETITIONERS POINT TO HIGHER
TAXES ON NEARBY LANDS AND OPPORTUNITY COSTS AS REASON FOR RETAINING THE
DIFFERENTIAL.  THESE ARE, ADMITTEDLY, ADDITIONAL COSTS OF NEARBY
PRODUCTION, BUT THEY ARE OF NO CONCERN TO HANDLERS WHO SEEK ONLY TO
OBTAIN RELIABLY MILK AT THE CHEAPEST PRICE.  SEE KESSEL, ECONOMIC
EFFECTS OF FEDERAL REGULATION OF MILK MARKETS, 10 ^.LAW & ECON.  51
(1967).  THIS COURT HAS BEEN SLOW TO ATTRIBUTE TO CONGRESS AN INTENT TO
COMPENSATE FOR INEFFICIENT ALLOCATION OF ECONOMIC RESOURCES.  CF. WEST
OHIO GAS CO. V. COMM'N, 294 U.S. 63, 72 (1935).  WHILE PETITIONERS
ARGUE THAT THE DIFFERENTIAL IS A NECESSARY INDUCEMENT TO KEEP THE
NEARBY FARMERS IN BUSINESS, THE RECORD DOES NOT REVEAL THAT THE
SECRETARY ACTED OUT OF CONCERN THAT THE NEARBY FARMERS WOULD QUIT THE
MARKET, NOR IS THERE ANY EVIDENCE DEMONSTRATING THE PRESENT NECESSITY
FOR NEARBY PRODUCERS.  IN AN ERA WHERE EFFICIENT TRANSPORTATION IS
AVAILABLE THIS MAY BE OF NOMINAL CONCERN.  AT MOST THIS MAY HAVE BEEN
AN UNSPOKEN CONSIDERATIONS IN 1937.  /26/ 

SINCE THE SECRETARY MADE NO FINDINGS TO THAT EFFECT, THE COURT NEED
NOT CONSIDER WHETHER THEY WOULD JUSTIFY PAYMENT OF THE NEARBY
DIFFERENTIAL IN VIEW OF THE LEGISLATIVE HISTORY INDICATING THAT THE
STATUTE CONTEMPLATES ADJUSTMENTS PRIMARILY FOR ECONOMIC COSTS TO
HANDLERS THAT ARE ABSORBED OR REDUCED BY THE PRODUCERS.  FURTHER IF THE
REPRESENTATIONS OF RESPONDENTS ARE CORRECT-- AND THEY ARE NOT WITHOUT
SUPPORT IN THE RECORD-- IT APPEARS THAT THE ELIMINATION OF THE 40-MILE
ZONE NEARBY DIFFERENTIAL PAYMENTS OF 46[, EVEN WITH THE SUSPENSION OF
THE INTERMEDIATE DIFFERENTIAL PAYMENTS OF 23[, WOULD RESULT IN A HIGHER
UNIFORM PRICE TO THOSE FARMERS NOW RECEIVING THE 23[ DIFFERENTIAL. 
/27/

        IV

        PRIOR DECISIONS 

OUR HOLDING DOES NOT REPRESENT A DEPARTURE FROM THIS COURT'S
PRECEDENTS.  NO OPINION OF THIS COURT HAS EVER EXPLICITLY APPROVED THE
NEARBY DIFFERENTIAL.  RELIANCE ON UNITED STATES V. ROCK ROYAL CO-OP.,
307 U.S. 533 (1939), IS MISPLACED.  THIS COURT'S REFUSAL TO INVALIDATE
THE PAYMENT OF A NEARBY DIFFERENTIAL TO FARMERS IN CERTAIN COUNTIES
NAMED IN THE NEW YORK ORDER MUST BE TAKEN IN THE CONTEXT OF THAT ACTION
WHICH WAS INITIATED BY THE GOVERNMENT AGAINST HANDLERS WHO REFUSED TO
OBEY THE REGULATIONS.  THAT DECISION DID NOT REPUDIATE THE DISTRICT
COURT'S FINDING THAT THE PROVISION WAS "DISCRIMINATORY AS BETWEEN
PRODUCERS."  ID., AT 567.  THE NARROW REACH OF OUR ROCK ROYAL HOLDING
WAS RECOGNIZED IN STARK V. WICKARD, 321 U.S. 288 (1944), WHERE WE NOTED
THAT ROCK ROYAL HELD THE HANDLERS WITHOUT STANDING "TO OBJECT TO THE
OPERATION OF THE PRODUCER SETTLEMENT FUND," ID., AT 308, EXCEPT AS IT
AFFECTED HANDLERS.  THE COURT IN ROCK ROYAL WENT ON TO REJECT ROCK
ROYAL'S CONTENTION THAT THE PAYMENTS PLACED THOSE HANDLERS WITHOUT
CUSTOMERS IN THE NEARBY COUNTIES AT A COMPETITIVE DISADVANTAGE. 

OUR ATTENTION IS ALSO DRAWN TO THE FIRST CIRCUIT'S DECISION IN GREEN
VALLEY CREAMERY V. UNITED STATES, 108 F.2D 342 (1939).  AS IN ROCK
ROYAL, SUPRA, THE PARTIES DID NOT HAVE STANDING TO RAISE THE INVALIDITY
OF THE NEARBY DIFFERENTIAL.  TO THE EXTENT THE FIRST CIRCUIT'S VIEW IS
CONTRARY TO OUR PRESENT HOLDING, WE DISAPPROVE IT.

        V

        SIGNIFICANCE OF DEPARTMENTAL CONSTRUCTION 

WHILE THIS COURT HAS ANNOUNCED THAT IT WILL ACCORD GREAT WEIGHT TO A
DEPARTMENTAL CONSTRUCTION OF ITS OWN ENABLING LEGISLATION, ESPECIALLY A
CONTEMPORANEOUS CONSTRUCTION, SEE UDALL V. TALLMAN, 380 U.S. 1, 16
(1965); POWER REACTOR CO. V. ELECTRICIANS, 367 U.S. 396, 408 (1961); IT
IS ONLY ONE INPUT IN THE INTERPRETATIONAL EQUATION.  ITS IMPACT CARRIES
MOST WEIGHT WHEN THE ADMINISTRATORS PARTICIPATED IN DRAFTING AND
DIRECTLY MADE KNOWN THEIR VIEWS TO CONGRESS IN COMMITTEE HEARINGS.  SEE
POWER REACTOR CO. V. ELECTRICIANS, SUPRA; UNITED STATES V. AMERICAN
TRUCKING ASSNS., 310 U.S. 534, 539 (1940).  IN SUCH CIRCUMSTANCES,
ABSENT ANY INDICATION THAT CONGRESS DIFFERED WITH THE RESPONSIBLE
DEPARTMENT, A COURT SHOULD RESOLVE ANY AMBIGUITY IN FAVOR OF THE
ADMINISTRATIVE CONSTRUCTION, IF SUCH CONSTRUCTION ENHANCES THE GENERAL
PURPOSES AND POLICIES UNDERLYING THE LEGISLATION.  SEE AMERICAN POWER &
LIGHT CO. V. SEC, 329 U.S. 90, 112-114 (1946). 

THE COURT MAY NOT, HOWEVER, ABDICATE ITS ULTIMATE RESPONSIBILITY TO
CONSTRUE THE LANGUAGE EMPLOYED BY CONGRESS.  THOSE PROPS THAT SERVE TO
SUPPORT A DISPUTABLE ADMINISTRATIVE CONSTRUCTION ARE ABSENT HERE. 
THERE IS NO SUGGESTION IN THE FINDINGS, NOR HAVE THE PARTIES EXPLAINED,
HOW THE PRESENT DIFFERENTIAL CONTRIBUTES TO THE BROAD, GENERAL PURPOSE
OF ELIMINATING CRIPPLING COMPETITIO;.  NOR IN THE PRESENT CASE HAS THE
COURT'S ATTENTION BEEN DRAWN TO ANY HEARINGS THAT SUGGEST THAT CONGRESS
ACTED WITH THE PARTICULAR ADMINISTRATIVE CONSTRUCTION BEFORE IT IN
EITHER 1935 OR 1937.  AND IF THOSE ADMINISTRATORS WHO PARTICIPATED IN
DRAFTING THE 1935 ACT UNDERSTOOD MARKET DIFFERENTIALS TO ENCOMPASS THE
FARM LOCATION DIFFERENTIAL, THEY OBVIOUSLY FAILED TO COMMUNICATE THEIR
UNDERSTANDING TO THE DRAFTERS OF THE COMMITTEE REPORT.  IT IS ALSO
EVIDENT THAT THE 1937 RE-ENACTMENT OF THE 1935 AMENDMENTS WAS ROUTINE
AND DID NOT FOLLOW A COMPREHENSIVE REVIEW OF THE ISSUES THAT HAD BEEN
EXPLORED IN DETAIL BY THE 1935 DRAFTSMEN WHO WROTE THE COMMITTEE
REPORTS.  /28/

IT IS TRUE THAT A REPORT FROM THE FEDERAL TRADE COMMISSION SET FORTH
THE COMPUTATIONS EMPLOYED UNDER THE 1936 BOSTON ORDER WHICH APPARENTLY
PROVIDED FOR A NEARBY DIFFERENTIAL.  /29/  BUT THE STARK FIGURES, SET
FORTH IN THE APPENDIX TO THE REPORT WITHOUT EXPLICATION, CAN HARDLY BE
SAID TO HAVE GIVEN THE ADMINISTRATIVE CONSTRUCTION THE "NOTORIETY" THAT
THIS COURT FOUND PERSUASIVE IN UDALL V. TALLMAN, 380 U.S.,AT 18.  IN
UDALL THE COURT WAS IMPRESSED BY THE FACT THAT THE SECRETARY'S
INTERPRETATION HAD ,BEEN A MATTER OF PUBLIC RECORD AND DISCUSSION." 
ID., AT 17.  EVEN DESPITE ACTIVE CONGRESSIONAL INVOLVEMENT IN REVIEWING
CERTAIN ADMINISTRATIVE ACTION IN CONNECTION WITH PARTICULAR LEASES, THE
COURT NOTED THAT IT WOULD NOT ATTRIBUTE RATIFICATION TO CONGRESS. 
UDALL V. TALLMAN, SUPRA.  NOR CAN PETITIONERS PUT FLESH ON THIS
ARGUMENT BY CITING SEC. 4 OF THE 1937 RE-ENACTMENT, 50 STAT. 249, /30/
AND THE COMMITTEE REPORT, H.R. REP. NO. 468, 75TH CONG., 1ST SESS., 4
(1937), WHICH MERELY STATES IN THE LANGUAGE OF THE ACT THAT SEC. 4
PURPORTS TO RATIFY, LEGALIZE, AND CONFIRM ALL ACTION TAKEN PURSUANT TO
THE AGREEMENT AND ORDER PROVISIONS UNDER THE 1935 STATUTE.  /31/

        VI

RELEVANCE OF PRODUCER APPROVAL 

PETITIONER ALLUDE TO THE FACT THAT THE ORDERS IN QUESTION HAVE BEEN
SPECIFICALLY APPROVED BY THE FARMERS CONCERNED AS REQUIRED BY SECS.
8(C)(9)(B)(I) AND (II) OF THE ACT.  /32/  WHILE THE CONTENTION IS
ADUMBRATED, THE ARGUMENT APPEARS TO RUN AS FOLLOWS:  SINCE PROVISION IS
MADE FOR APPROVAL OF ORDERS BY THE REGULATED SUBJECTS, THE SECRETARY'S
DISCRETION SHOULD BE GENEROUSLY INTERPRETED.  IF PROVISION FOR SUCH
APPROVAL COULD EVER LEGITIMIZE A REGULATION NOT AUTHORIZED BY STATUTE,
THE PROVISION HAS NO SIGNIFICANCE IN THE CASE BEFORE US, IN LIGHT OF
THE CONSIDERATIONS ALREADY DISCUSSED.  IT IS THE SECRETARY, NOT THE
FARMERS, WHO IS RESPONSIBLE FOR ADMINISTERING THE STATUTE AND
INITIATING ORDERS.  /33/             VII

        PROPRIETY OF SUMMARY JUDGMENT 

ALTHOUGH THE SECRETARY DOES NOT PRESS THE POINT, THE PRIVATE
PETITIONERS ARGUE THAT THIS COURT SHOULD AT THE VERY LEAST REVERSE FOR
A TRIAL ON THE MERITS OR ALTERNATIVELY REVERSE WITH INSTRUCTIONS TO
REMAND TO THE SECRETARY FOR FURTHER CONSIDERATION. 

THIS IS NOT A CASE WHERE A DEPARTMENT HAS ACTED WITHOUT A FORMAL
RECORD.  IN SUCH INSTANCES A TRIAL MIGHT BE APPROPRIATE TO AFFORD THE
DEPARTMENT AN OPPORTUNITY TO DEVELOP THOSE FACTS WHICH UNDERPIN ITS
ACTION.  WHEN ACTION IS TAKEN ON A RECORD THE DEPARTMENT CANNOT THEN
PRESENT TESTIMONY IN COURT TO REMEDY THE GAPS IN THE RECORD, ANY MORE
THAN ARGUMENTS OF COUNSEL ON REVIEW CAN SUBSTITUTE FOR AN AGENCY'S
FAILURE TO MAKE FINDINGS OR GIVE REASONS.  A REMAND TO THE SECRETARY IS
INAPPROPRIATE IN THE ABSENCE OF A REQUEST BY THE GOVERNMENT.  COUNSEL
FOR THE DEPARTMENT HAS ADVANCED NO NEW THEORY FOR SUSTAINING THE
ORDER.  CF. SEC. V. CHENERY CORP., 318 U.S. 80, 92 (1943). 

UNLIKE ADDISON V. HOLLY HILL CO., 322 U.S. 607 (1944), WE DO NOT
HAVE BEFORE US A DEFINITION IN A REGULATION THAT IS NECESSARY TO GIVE
MEANING AND CONTENT TO THE ADMINISTRATIVE SCHEME.  NOR DOES OUR
DECISION HAVE THE EFFECT OF ENGRAFTING A DEFINITION ON A PARTICULAR
STATUTORY TERM, A FUNCTION THAT SHOULD, IN THE FIRST INSTANCE, BE LEFT
TO THE APPROPRIATE ADMINISTRATIVE BODY.  THE 1964 ORDER, MOREOVER,
EXPRESSLY PROVIDES FOR SEVERANCE OF ANY PROVISION THAT IS FOUND
INVALID.  SEE 7 CFR 1001.96. 

VIII

      DISPOSITION OF THE ESCROW FUND 

PETITIONER FARMERS' LAST LINE OF RETREAT IS THEIR CONTENTION THAT
THEY ARE ENTITLED TO ESCROW MONIES THAT HAVE BEEN ACCRUING SINCE THE
DISTRICT COURT'S ENTRY OF THE ORDER GRANTING THE RESPONDENTS' MOTION
FOR A PRELIMINARY INJUNCTION.  THE COURT BELOW STRUCK AN EQUITABLE
BALANCE IN AWARDING TO PETITIONERS, NEARBY FARMERS, ALL ESCROW MONIES
COLLECTED PRIOR TO THE ENTRY OF FINAL JUDGMENT BY THE DISTRICT COURT. 
THIS IS A FAIR SOLUTION, AND ONE THIS COURT WILL NOT DISTURB. 
PETITIONERS HAVE BEEN ON NOTICE SINCE BLAIR V. FREEMAN, 125
U.S.APP.D.C. 207, 370 F.2D 229 (1966), THAT NEARBY DIFFERENTIALS WERE
BOTTOMED ON A SHAKY STATUTORY PREMISE.  LEST LOSING PARTIES BE
ENCOURAGED TO PROLONG LITIGATION BY FRIVOLOUS APPEALS IN ORDER TO REAP
A WINDFALL, WE THINK RESPONDENTS DESERVE THE FRUITS OF THEIR VICTORY AS
OF THE DATE OF FINAL JUDGMENT AT TRIAL. 

THE JUDGMENT BELOW IS

              AFFIRMED. 

/0/  TOGETHER WITH NO. 52, HARDIN, SECRETARY OF AGRICULTURE V. ALLEN
ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  THE SECRETARY HAS PROMULGATED COMPREHENSIVE REGULATIONS TO
GOVERN THE MARKETING OF MILK, 7 CFR 1002.1 ET SEQ. (1969), PURSUANT TO
THE AGRICULTURAL MARKETING AGREEMENT ACT.  THE PROVISIONS RELEVANT TO
THIS CAUSE ARE SET FORTH IN PART I OF THIS OPINION, AT 178, INFRA. 

THE ACTION WAS ORIGINALLY BROUGHT AGAINST THE SECRETARY ONLY. 
PETITIONERS ZUBER ET AL., NEARBY FARMERS, UNSUCCESSFULLY SOUGHT LEAVE
TO INTERVENE BEFORE THE DISTRICT COURT IN SUPPORT OF THE SECRETARY'S
REGULATIONS.  WHEN JUDGMENT WAS RENDERED AGAINST THE SECRETARY,
PETITIONERS SOUGHT LEAVE TO INTERVENE FOR THE PURPOSES OF APPEAL. 
LEAVE WAS GRANTED AND THE SECRETARY ALSO DECIDED TO TAKE AN APPEAL. 
THE PARTIES HAVE DEVOTED A GOOD DEAL OF ENERGY TO DISPUTING WHAT
CONSTITUTES THE RECORD IN THIS LITIGATION.  PETITIONERS AT VARIOUS
TIMES HAVE REFERRED US TO THE TESTIMONY AND RECORD COMPILED IN AN
ACTION BROUGHT IN THE NORTHERN DISTRICT OF NEW YORK, CRANSTON V.
FREEMAN, 290 F.SUPP.  785 (1968).  RESONDENTS HAVE OBJECTED, NOTING
THAT THE RECORD IN CRANSTON IS NOT FORMALLY BEFORE THIS COURT, AND HAVE
INCLUDED IN THE APPENDIX VARIOUS MATERIALS THAT WERE OF RECORD BELOW. 
THE COURT NEED NOT PAUSE OVER THE CONTROVERSY SINCE NONE OF THE
MATERIALS IN RESPONDENTS' APPENDIX IS DECISIVE OF THE ACTIO; BEFORE US.
AS FOR THE REFERENCES TO THE CRANSTON RECORD, THEY TOO ARE NOT
DECISIVE OF THE DISPUTE. 

/2/  SEE, E.G., LEHIGH VALLEY COOPERATIVE V. UNITED STATES, 370 U.S.
76 (1962); BRANNAN V. STARK, 342 U.S. 451 (1952); STARK V. WICKARD, 321
U.S. 288 (1944); UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533
(1939); H. P. HOOD & SONS V. UNITED STATES, 307 U.S. 588 (1939).  THE
LOWER COURTS HAVE ALSO BEEN PLAGUED BY THE MILK PROBLEM.  SEE
ESPECIALLY JUDGE FRANK'S LAMENT, QUEENSBORO FARM PRODS.  V. WICKARD,
137 F.2D 969 (C.A. 2D CIR. 1943); SEE ALSO BLAIR V. FREEMAN, 125
U.S.APP.D.C. 207, 370 F.2D 229 (1966); GREEN VALLEY CREAMERY V. UNITED
STATES, 108 F.2D 342 (C.A. 1ST CIR. 1939). 

/3/  FOR FLUID USE, MILK MUST BE TRANSPORTED IN ITS NATURAL STATE
AND AS SUCH IS A BULKY AND HIGHLY PERISHABLE COMMODITY.  THUS COST OF
SHIPMENT TO A CONSUMER MARKET IS GREATER THAN TRANSPORTING AN EQUAL
SUPPLY TO A MANUFACTURING PLANT.  THESE FACTORS, COMBINED WITH MORE
RIGID SANITARY REQUIREMENTS FOR PLANTS DISTRIBUTING THE FLUID PRODUCT,
SEE AGRICULTURAL ADJUSTMENT ADMINISTRATION REPORT, MAY 1933-FEB.  1934,
P. 154, EXPLAIN PART OF THE DISPARITY BETWEEN THE PRICE FOR CLASS I
(FLUID MILK) AND CLASS II (OTHER USES) MILK.  NEARBY PRODUCERS, GIVEN
EQUILIBRIUM OF SUPPLY AND DEMAND, ARE LOGICAL FLUID SUPPLIERS TO THE
URBAN AREAS.  SEE GENERALLY J. CASSELS, A STUDY OF FLUID MILK PRICES
(1937). 

/4/  THE COOPERATIVE SYSTEM AMOUNTED TO A POOLING ARRANGEMENT
WHEREIN PARTICIPATING PRODUCERS WOULD BARGAIN COLLECTIVELY WITH THE
HANDLERS AND THREATEN TO WITHHOLD THEIR MILK IF THE HANDLERS REFUSED TO
AGREE TO PURCHASE A CERTAIN MINIMUM PERCENTAGE OF THEIR CLASS I FLUID
MILK FROM THE POOL.  WITHOUT THIS SUPPLY THE HANDLERS WOULD BE UNABLE
TO MEET THEIR WINTER REQUIREMENTS. 

ESSENTIAL TO THIS ARRANGEMENT OF COURSE WAS A SUFFICIENTLY WIDE
MEMBERSHIP TO INSURE NO ALTERNATIVE SOURCE OF SUPPLY TO RECALCITRANT
HANDLERS. 

THE SECOND ASPECT OF THE ARRANGEMENT WAS THE DIVISION OF THE PROFITS
AMONG THE PRODUCER MEMBERS OF THE COOPERATIVE.  FREQUENTLY EMPLOYED WAS
A BASE-RATING PLAN WHEREBY EACH PRODUCER WOULD BE ASSIGNED A PERCENTAGE
OF HIS MILK FOR WHICH HE COULD CLAIM PAYMENT AT THE CLASS I FLUID
PRICE.  FOR THE REMAINING PRODUCTION HE WOULD BE PAID AT THE CLASS II
RATE.  APPARENTLY BASES WERE ASSIGNED ACCORDING TO THE ANTICIPATED
PARTICIPATION OF THE PRODUCER IN THE FLUID MARKET.  AS A RESULT, NEARBY
PRODUCERS RECEIVED MORE FAVORABLE BASES IN VIEW OF THEIR HISTORICAL
ROLE AS FLUID SUPPLIERS IN AN EQUILIBRIUM MARKET.  FOR DESCRIPTIONS OF
THE COOPERATIVE SYSTEMS SEE CASSELS, SUPRA, N. 3, AT 56-70; J. BLACK,
THE DAIRY INDUSTRY AND THE AAA 49-51 (1935). 

/5/  BECAUSE THEY WERE HISTORICALLY FLUID SUPPLIERS THE NEARBY
PRODUCERS APPARENTLY MAINTAINED AT ALL TIMES PRODUCTION SUFFICIENT TO
SERVICE THE CONSUMER FLUID MARKET.  IN ADDITION THEIR CLOSE PROXIMITY
ENABLED THEM TO DELIVER TO SMALL RETAILERS.  AS SUCH THEY WERE
POTENTIAL COMPETITORS. 

/6/  SEE AGRICULTURAL ADJUSTMENT ADMINISTRATION REPORT, SUPRA, N. 3,
AT 159-161; G. BARNHART, THE DEVELOPMENT OF THE LICENSES AND ORDER
REGULATING THE HANDLING OF MILK IN THE GREATER BOSTON, MASSACHUSETTS,
MARKETING AREA, NOV. 3, 1933-JUNE 1, 1946 (UNPUBLISHED DISSERTATION ON
FILE WITH DEPARTMENT OF AGRICULTURE AND HARVARD UNIVERSITY). 

/7/  LICENSE 38 FOR THE BOSTON AREA PROVIDED MORE FAVORABLE BASES FOR
THE NEARBY PRODUCERS.  SEE BARNHART, SUPRA, N. 6, AT 95-96. 

/8/  "(5) MILK AND ITS PRODUCTS; TERMS AND CONDITIONS OF ORDERS. 

"IN THE CASE OF MILK AND ITS PRODUCTS, ORDERS ISSUED PURSUANT TO
THIS SECTION SHALL CONTAIN ONE OR MORE OF THE FOLLOWING TERMS AND
CONDITIONS, AND (EXCEPT AS PROVIDED IN SUBSECTION (7) OF THIS SECTION)
NO OTHERS: 

"(A) CLASSIFYING MILK IN ACCORDANCE WITH THE FORM IN WHICH OR THE
PURPOSE FOR WHICH IT IS USED, AND FIXING, OR PROVIDING A METHOD FOR
FIXING, MINIMUM PRICES FOR EACH SUCH USE CLASSIFICATION WHICH ALL
HANDLERS SHALL PAY, AND THE TIME WHEN PAYMENTS SHALL BE MADE, FOR MILK
PURCHASED FROM PRODUCERS OR ASSOCIATIONS OF PRODUCERS.  SUCH PRICES
SHALL BE UNIFORM AS TO ALL HANDLERS, SUBJECT ONLY TO ADJUSTMENTS FOR
(1) VOLUME, MARKET, AND PRODUCTION DIFFERENTIALS CUSTOMARILY APPLIED BY
THE HANDLERS SUBJECT TO SUCH ORDER, (2) THE GRADE OR QUALITY OF THE
MILK PURCHASED, AND (3) THE LOCATIONS AT WHICH DELIVERY OF SUCH MILK,
OR ANY USE CLASSIFICATION THEREOF, IS MADE TO SUCH HANDLERS: 

"(B) PROVIDING: 

"(I) FOR THE PAYMENT TO ALL PRODUCERS AND ASSOCIATIONS OF PRODUCERS
DELIVERING MILK TO THE SAME HANDLER OF UNIFORM PRICES FOR ALL MILK
DELIVERED BY THEM:  PROVIDED, THAT EXCEPT IN THE CASE OF ORDERS
COVERING MILK PRODUCTS ONLY, SUCH PROVISION IS APPROVED OR FAVORED BY
AT LEAST THREE-FOURTHS OF THE PRODUCERS WHO, DURING A REPRESENTATIVE
PERIOD DETERMINED BY THE SECRETARY OF AGRICULTURE, HAVE BEEN ENGAGED IN
THE PRODUCTION FOR MARKET OF MILK COVERED IN SUCH ORDER OR BY PRODUCERS
WHO, DURING SUCH REPRESENTATIVE PERIOD, HAVE PRODUCED AT LEAST THREE
FOURTHS OF THE VOLUME OF SUCH MILK PRODUCED FOR MARKET DURING SUCH
PERIOD; THE APPROVAL REQUIRED HEREUNDER SHALL BE SEPARATE AND APART
FROM ANY OTHER APPROVAL OR DISAPPROVAL PROVIDED FOR BY THIS SECTION;
OR 

"(II) FOR THE PAYMENT TO ALL PRODUCERS AND ASSOCIATIONS OF PRODUCERS
DELIVERING MILK TO ALL HANDLERS OF UNIFORM PRICES FOR ALL MILK SO
DELIVERED, IRRESPECTIVE OF THE USES MADE OF SUCH MILK BY THE INDIVIDUAL
HANDLER TO WHOM IT IS DELIVERED; 

SUBJECT, IN EITHER CASE, ONLY TO ADJUSTMENTS FOR (A) VOLUME, MARKET,
AND PRODUCTION DIFFERENTIALS CUSTOMARILY APPLIED BY THE HANDLERS
SUBJECT TO SUCH ORDER, (B) THE GRADE OR QUALITY OF THE MILK DELIVERED,
(C) THE LOCATIONS AT WHICH DELIVERY OF SUCH MILK IS MADE, AND (D) A
FURTHER ADJUSTMENT, EQUITABLY TO APPORTION THE TOTAL VALUE OF THE MILK
PURCHASED BY ANY HANDLER, OR BY ALL HANDLERS, AMONG PRODUCERS AND
ASSOCIATIONS OF PRODUCERS, ON THE BASIS OF THEIR MARKETINGS OF MILK,
WHICH MAY BE ADJUSTED TO REFLECT SALES OF SUCH MILK BY ANY HANDLER OR
BY ALL HANDLERS IN ANY USE CLASSIFICATION OR CLASSIFICATIONS, DURING A
REPRESENTATIVE PERIOD OF TIME WHICH NEED NOT BE LIMITED TO ONE YEAR." 

/9/  THE BOSTON ORDER OF 1937, 2 FED.REG.  1331, ESTABLISHED UNIFORM
PRICES FOR ALL PRODUCERS AT $3.19 AND $3.01 PER CWT. OF MILK, DEPENDING
ON THE PLACE OF DELIVERY, WITH A FURTHER ADJUSTMENT FOR TRANSPORTATION
TO THE HANDLER'S PLANT IN THE MARKETING AREA.  ARTICLE VIII, SEC. 4(1)
ALSO PROVIDED FOR AN ADJUSTMENT BASED ON THE COST OF TRANSPORTING MILK
FROM OUTLYING PLANTS TO THE PRIMARY BOSTON MARKET.  THE PRESENT
REGULATIONS CALCULATE PRICE WITH REFERENCE TO THE PURCHASING POWER OF
MILK BASED ON THE 1958 COST-OF-LIVING INDEX.  NO TRANSPORTATION
ADJUSTMENT IS PROVIDED FOR IN CALCULATION OF THE UNIFORM PRICE UNDER
SEC. 1001.62 OF THE ORDER.  DIFFERENTIALS TO COMPENSATE FOR ZONE OF
DELIVERY ARE RETAINED AS SEPARATE ADJUSTMENTS.  SEE INFRA. 

/10/  THE SECRETARY HAS THREE ALTERNATIVE MODES OF PROCEEDING UNDER
THE ACT.  HE MAY ESTABLISH "USE" PRICES WHICH ALL HANDLERS MUST PAY TO
ALL PRODUCERS ACCORDING TO THE ACTUAL AMOUNT OF MILK USED IN EACH
CATEGORY, SEC. 8C(5)(A); INDIVIDUAL HANDLER POOLS WHERE ALL PRODUCERS
OR COOPERATIVES SELLING TO AN INDIVIDUAL HANDLER SHALL BE PAID A
UNIFORM PRICE FOR MILK DELIVERED TO THAT HANDLER; OR A MARKETWIDE POOL
WHERE ALL HANDLERS MUST PAY ALL PRODUCERS A UNIFORM PRICE FOR ALL MILK
DELIVERED IRRESPECTIVE OF END USE. 

/11/  ALSO INCLUDED IS AN ADJUSTMENT FOR DELIVERY TO A NEARBY
PLANT.  THE LOCATION OF HANDLER PLANTS IS CLASSIFIED BY ZONES.  7 CFR
1001.62.  DELIVERY TO A PLANT LOCATED NEARBY THE CONSUMER MARKET IS, OF
COURSE, ADVANTAGEOUS TO THE HANDLER AND THE PRODUCER IS COMPENSATED FOR
THIS SERVICE.  THE HANDLER ALSO SAVES THE COST OF HANDLING AND
PROCESSING AT HIS COUNTRY PLANT IN ADDITION TO SAVING TRANSPORTATION
COST.  CONVERSELY, DEPOSITING MILK AT HANDLERS' PLANTS IN OUTLYING
DISTRICTS RESULTS IN A NEGATIVE ADJUSTMENT. 

/12/  SECTION 8C(5)(B)(II) REQUIRES ALL UNIFORM PRICES TO BE PAID
"IRRESPECTIVE OF THE USES MADE OF SUCH MILK BY THE INDIVIDUAL HANDLER
TO WHOM IT IS DELIVERED."  RESPONDENTS CONTEND THAT THE NEARBY
DIFFERENTIAL IS MERE A DISGUISED PAYMENT FOR THE NEARBY SUPPLIERS'
GREATER SHARE OF FLUID MILK SALES.  SUCH WAS APPARENTLY THE CASE IN THE
NEW JERSEY ORDER INVALIDATED BY THE COURT OF APPEALS IN BLAIR V.
FREEMAN, SUPRA, WHERE THE PAYMENT OF THE DIFFERENTIAL WAS EXPLICITLY
LINKED TO THE PERCENTAGE OF NEARBY MILK ACTUALLY SUPPLIED TO THE FLUID
MARKET.  WE SHARE RESPONDENTS' SKEPTICISM AND OUR DOUBTS ARE REINFORCED
BY THE EXPLICIT CONNECTION OF DIFFERENTIAL PAYMENTS WITH THE SHARE OF
FLUID MILK SUPPLIED IN THE 1936 BOSTON ORDER.  FURTHER CAUSE FOR
SKEPTICISM IS FOUND IN THE PRESENT ZONE DIFFERENTIAL STRUCTURE WHICH
UNDERCOMPENSATES THE HANDLERS FOR TRANSPORTATION FROM OUTLYING
DISTRICTS AND THUS ENCOURAGES THEM TO BUY FROM NEARBY FARMERS.  SEE
KESSEL, ECONOMIC EFFECTS OF FEDERAL REGULATION OF MILK MARKETS, 10
J.LAW & ECON.  51, 64-65 (1967).  HERE, HOWEVER UNLIKE THE SITUATION IN
BLAIR V. FREEMAN, SUPRA, THE PRODUCER RECEIVES THE DIFFERENTIAL
IRRESPECTIVE OF THE USE TO WHICH HIS MILK IS ULTIMATELY PUT.  SINCE THE
NEARBY DIFFERENTIAL IN THE PRESENT ORDER IS NOT DIRECTLY TIED TO THE
PERCENTAGE OF FLUID MILK SALES, ALTHOUGH THE ORDER LIMITS DIFFERENTIAL
PAYMENTS TO 46[ OR THE CLASS I PRICE, WHICHEVER IS HIGHER, WE ACCEPT
THE GOVERNMENT'S CONTENTION THAT, AS A MATTER OF STRICT LOGIC, THE
PAYMENT OF DIFFERENTIALS BASED ON THE HISTORICAL POSITION OF NEARBY
PRODUCERS AS FLUID SUPPLIERS, IS NOT INCONSISTENT WITH THE IRRESPECTIVE
OF-END-USE REQUIREMENT.     /13/  "THE MARKET DIFFERENTIAL IS A
DIFFERENTIAL WHICH IS GIVEN TO THE PRODUCER TO COMPENSATE HIM FOR
DELIVERING HIS MILK TO A CITY MARKET INSTEAD OF TO A COUNTRY PLANT. 
THESE DIFFERENTIALS VARY WITH THE MARKETS AND CANNOT BE QUALIFIED AS A
'LOCATION' DIFFERENTIAL, BECAUSE OF THE FACT THAT LOCATION IS USUALLY
DETERMINED ON THE DISTANCE FROM A PRIMARY MARKET WHEREAS MARKET
DIFFERENTIALS ARE USUALLY PAID IN SECONDARY MARKETS."  H.R. REP. NO.
1241, 74TH CONG., 1ST SESSS., 10 (1935). 

/14/  THE RELEVANT EXCERPTS FROM THE HEARING ARE INCLUDED IN THE
JOINT APPENDIX AND APPEAR AT 258-259: 

"SECTION 4 . . . PROVIDES FOR LOCATION DIFFERENTIALS . . . . NOW,
THE PRICE WHICH IS ARRIVED AT FROM THE CALCULATION OF THE POOL IS A
BLENDED PRICE FOR ALL MILK F.O.B. THE MARKET WITH COUNTRY STATION
ALLOWANCES DEDUCTED.  NOW, PARAGRAPH 1 (OF SEC. 4) HERE PROVIDES THAT
THERE SHALL BE DEDUCTED FROM THAT BLENDED PRICE IN THE CASE OF MILK
DELIVERED TO A PLANT MORE THAN 40 MILES FROM THE STATE HOUSE AN AMOUNT
EQUAL TO THE CARLOT FREIGHT RATE FROM THAT PLANT TO BOSTON, SO THAT
THAT DEDUCTION WOULD BE DIFFERENT FOR EACH FREIGHT ZONE, AND THE PRICE
WOULD BE SMALLER BY THE AMOUNT OF DIFFERENCE IN FREIGHT FROM EACH ZONE
AS WE GO OUT FROM THE MARKET.  NOW, PARAGRAPH 2 (OF SEC. 4) PROVIDES
THAT IN THE CASE OF MILK DELIVERED FROM A PRODUCER TO A PLANT LOCATED
WITHIN FORTY MILES OF THE STATE HOUSE THERE SHOULD BE ADDED 18 CENTS
PER HUNDREDWEIGHT.  THAT IS ADDED FOR THE REASON THAT IN THE CASE OF
COUNTRY STATIONS THERE IS ALLOWED THE DEALERS ON CLASS I MILK 20 CENTS
A HUNDREDWEIGHT AS A COUNTRY STATION CHARGE, AND WE ARE ALLOWING FOR
CONTAINERS IN WHICH TO SHIP THE MILK THREE CENTS IN THE CASE OF MILK
RECEIVED AT CITY PLANTS, INSTEAD OF HAVING A 20 CENT AND A THREE CENT
DEDUCTION, WHICH WOULD BE 23 CENTS.  THERE IS A RECEIVING STATION
ALLOWANCE OF ONLY FIVE CENTS.  THE DIFFERENCE IS 18 CENTS PER
HUNDREDWEIGHT.  WE ADD BACK IN HERE 18 CENTS TO THE PRODUCER WHOSE MILK
DOES NOT PASS THROUGH A COUNTRY STATION." 

/15/  SEE BARNHART, SUPRA, N. 6, AT 620. 

/16/  "TO ELIMINATE QUESTIONS OF IMPROPER DELEGATION OF LEGISLATIVE
AUTHORITY RAISED BY THE DECISIONS IN SCHECHTER ET AL. V. UNITED STATES,
THE PROVISIONS RELATING TO ORDERS ENUMERATE THE COMMODITIES TO WHICH
ORDERS ISSUED BY THE SECRETARY OF AGRICULTURE MAY BE APPLICABLE,
PRESCRIBE FULLY THE ADMINISTRATIVE PROCEDURE TO BE FOLLOWED BY THE
SECRETARY IN ISSUING, ENFORCING, AND TERMINATING ORDERS, AND SPECIFY
THE TERMS WHICH MAY BE INCLUDED IN ORDERS DEALING WITH THE ENUMERATED
COMMODITIES."  H.R. REP. NO. 1241, SUPRA, AT 8.  SEE BRANNAN V. STARK,
342 U.S. 451, 465 (1952). 

/17/  IN THIS CONNECTION IT SHOULD BE NOTED THAT THE PRODUCTION
DIFFERENTIAL AUTHORIZED FOR MAINTAINING AN ADEQUATE SUPPLY FOR FLUID
USE DURING THE LEAN WINTER MONTHS IS NOT, STRICTLY SPEAKING, A HANDLER
COST BUT A GENERAL COST OF THE MARKET.  IT IS, HOWEVER, AN ESSENTIAL
COST THAT CANNOT BE ELIMINATED BY LOOKING TO AN ALTERNATIVE SUPPLIER. 
VIEWED IN THIS CONTEXT, IT IS OF COURSE A COST TO THE HANDLER; FOR IN A
NONREGULATED EQUILIBRIUM MARKET, A HANDLER WOULD BE FORCED TO PAY A
PREMIUM DURING THE WINTER MONTHS WHEN SUPPLY IS LIMITED AND DEMAND
CONSTANT. 

/18/  "THE VOLUME DIFFERENTIAL IS A DIFFERENTIAL WHICH IS PAID WHEN
THE OPERATIONS OF SEVERAL COUNTRY PLANTS ARE CONSOLIDATED INTO ONE
PLANT.  THE INCONVENIENCE WHICH IS CAUSED TO PRODUCERS BY CLOSING UP
PLANTS TO WHICH THEY HAVE BEEN DELIVERING AND REQUIRING THAT ALL OF
THEIR MILK BE HANDLED BY ONE PLANT, IS COMPENSATED BY AN ADDITIONAL
PAYMENT TO THE PRODUCERS.  THE PRODUCTION DIFFERENTIAL IS THE
DIFFERENTIAL WHICH IS PAID TO A PRODUCER, COMPENSATING HIM FOR KEEPING
HIS FARM AND MILK QUALIFIED FOR A CITY MARKET EVEN THOUGH HIS MILK MAY
ACTUALLY BE GOING INTO MANUFACTURED USE . . . . THE PRODUCTION
DIFFERENTIAL IS A PAYMENT TO THE FARMER FOR PERFORMING THIS FUNCTION IN
THE MARKET."  H.R. REP. NO. 1241, SUPRA, AT 9-10. 

IN BRANNAN V. STARK, SUPRA, THIS COURT INVALIDATED REGULATIONS
PROVIDING CERTAIN PAYMENTS TO COOPERATIVES THAT HAD THE EFFECT OF
REDUCING THE BLENDED PRICE TO NONMEMBER PRODUCERS.  THE PREMISE
UNDERLYING OUR HOLDING WAS THAT THESE PAYMENTS WOULD HAVE TO REPRESENT
COMPENSATION FOR RENDERING OF ECONOMIC SERVICES OF BENEFIT TO ALL
PRODUCERS.  EVEN THE DISSENTERS TOOK AS A POINT OF DEPARTURE THE
PROPOSITION THAT THE PAYMENTS COULD BE SUSTAINED ONLY IF JUSTIFIED IN
TERMS OF SERVICES RENDERED. 

/19/  SEE BRANNON V. STARK, SUPRA. 

/20/  "THE PROPOSED AMENDMENTS, INSOFAR AS THEY RELATE TO MARKETING
AGREEMENTS AND ORDERS, ARE PRIMARILY INTENDED TO IMPLEMENT AND SPELL
OUT IN MORE DETAIL AND WITH GREATER FREEDOM FROM AMBIGUITY THE POWERS
WHICH WERE PROVIDED FOR IN THE ORIGINAL ACT.  THE PRESENT LANGUAGE OF
THE STATUTE IS, UNFORTUNATELY, SUBJECT TO SERIOUS MISCONSTRUCTION. 
THIS HAS GIVEN RISE TO OBSTACLES IN CONNECTION WITH THE ENFORCEMENT OF
THE MARKETING AGREEMENTS AND LICENSES WHICH HAVE SERIOUSLY ENDANGERED
THEIR SUCCESSFUL OPERATION."  H.R. REP. NO. 1241, SUPRA, AT 7. 

/21/  THE VERDICT OF QUIESCENT YEARS CANNOT BE INVOKED TO BAPTIZE A
STATUTORY GLOSS THAT IS OTHERWISE IMPERMISSIBLE.  THIS COURT HAS MANY
TIMES RECONSIDERED STATUTORY CONSTRUCTIONS THAT HAVE BEEN PASSIVELY
ABIDED BY CONGRESS.  CONGRESSIONAL INACTION FREQUENTLY BETOKENS
UNAWARENESS, PREOCCUPATION, OR PARALYSIS.  "IT IS AT BEST TREACHEROUS
TO FIND IN CONGRESSIONAL SILENCE ALONE THE ADOPTION OF A CONTROLLING
RULE OF LAW."  GIROUARD V. UNITED STATES, 328 U.S. 61, 69 (1946).  ITS
SIGNIFICANCE IS GREATEST WHEN THE AREA IS ONE OF TRADITIONAL YEAR-BY
YEAR SUPERVISION, LIKE TAX, WHERE WATCHDOG COMMITTEES ARE CONSIDERING
AND REVISING THE STATUTORY SCHEME.  EVEN LESS DEFERENCE IS DUE SILENCE
IN THE WAKE OF UNSUCCESSFUL ATTEMPTS TO ELIMINATE AN OFFENDING
INTERPRETATION BY AMENDMENT.  SEE, E.G., GIROUARD V. UNITED STATES,
SUPRA.  WHERE, AS IN THE CASE BEFORE US, THERE IS NO INDICATION THAT A
SUBSEQUENT CONGRESS HAS ADDRESSED ITSELF TO THE PARTICULAR PROBLEM, WE
ARE UNPERSUADED THAT SILENCE IS TANTAMOUNT TO ACQUIESCENCE, LET ALONE
THE APPROVAL DISCERNED BY THE DISSENT. 

/22/  THE FLOOR EXCHANGE IS REPORTED AT 79 CONG.REC.  11139-11140. 

"MR. COPELAND.  WHAT HAS THE SENATOR TO SAY TO THE SUGGESTION THAT
IN A NUMBER OF COMMUNITIES IN UP-STATE NEW YORK THERE IS NOT A
SUFFICIENT SUPPLY OF MILK SURROUNDING THE MARKET TO TAKE CARE OF THE
DEMAND; THEREFORE, MILK SURROUNDING THE MARKET TO TAKE CARE OF THE
DEMAND; THEREFORE, MILK MUST BE BROUGHT INTO THE MARKET FROM MORE
DISTANT POINTS?  THE PROVISIONS OF THE EQUALIZATION WHICH WE ARE NOW
DISCUSSING PROVIDE THAT A PRODUCER WHO IS PRODUCING HIS MILK ON FARMS
NEAR TO CITIES WOULD RECEIVE THE SAME PRICE FOR HIS MILK ON FARMS NEAR
TO CITIES WOULD RECEIVE THE SAME PRICE FOR HIS PRODUCT AS A FARMER WHO
PRODUCES HIS MILK, SAY, 40 OR 50 MILES AWAY FROM THE SAME COMMUNITY. 

"MR. MURPHY.  IF THEY WERE EMBRACED IN THE SAME MARKETING AREA, THAT
WOULD BE TRUE.  LET US KEEP IN MIND WHAT THE SITUATION IS.  THERE IS A
DEFICIENCY OF CONSUMER DEMAND.  THERE IS A SURPLUS OF MILK.  THE PRICE
IS GREATLY DEPRESSED, AND HAS BEEN FOR 5 YEARS.  THE ONLY WAY IN WHICH
ONE CAN DETERMINE HOW EACH ONE OF THE PRODUCERS INCLUDED IN THE PLAN
PROVIDED HERE SHALL BEAR HIS SHARE OF THE COST OF EFFECTING A HIGHER
PRICE IS TO DIVIDE THE MILK BY CLASSIFICATION USES. 

        .       .          .          . 

"MR. COPELAND.  I DO NOT THINK THE SENATOR HAS QUITE STATED ALL THE
CONDITIONS.  HE DOES NOT TAKE INTO CONSIDERATION THE DIFFERENCE IN THE
COST OF PRODUCTION.  TAXES AND VALUES OF PROPERTY NEAR THE CITY ARE
VERY MUCH HIGHER THAN IN THE CASE OF PROPERTY FARTHER AWAY FROM THE
CITY.  THE TRANSPORTATION DIFFERENTIAL DOES NOT COMPENSATE FOR THE
DIFFERENCE IN COST, AS I SEE IT. 

"MR. MURPHY.  IF THE SENATOR WILL REFER TO PAGE 12, LINE 13, HE WILL
SEE THAT THERE IS THIS QUALIFICATION. 

"'SUCH PRICES SHALL BE UNIFORM AS TO ALL HANDLERS, SUBJECT ONLY TO
ADJUSTMENTS FOR (1) VOLUME, MARKET, AND PRODUCTION DIFFERENTIALS
CUSTOMARILY APPLIED BY THE HANDLERS SUBJECT TO SUCH ORDER-- ' 

"THEY ADOPT THE PRESENT PRACTICE OF BUSINESS-- 

"'(2) THE GRADE OR QUALITY OF THE MILK PURCHASED, AND (3) THE
LOCATIONS AT WHICH DELIVERY OF SUCH MILK, OR ANY USE CLASSIFICATION
THEREOF, IS MADE TO SUCH HANDLERS.'" 

/23/  THE MARKET DIFFERENTIAL DOES NOT, STRICTLY SPEAKING,
COMPENSATE THE PRODUCER FOR ABSORBING A COST TO THE HANDLER FOR IT MAY
BE NO ADDITIONAL COST TO THE PRODUCER TO DELIVER TO A CITY PLANT.  A
NEARBY FARMER, FOR EXAMPLE, WOULD NOT INCUR ADDITIONAL COSTS BY
DELIVERING TO A PREFERRED CITY PLANT AS OPPOSED TO A COUNTRY STATION. 
THE SAVINGS TO THE HANDLER ARE NEVERTHELESS PLAIN AND THE MARKET
DIFFERENTIAL SHOULD PROPERLY BE VIEWED AS AN ADJUSTMENT THAT PERMITS
THE PRODUCER TO SHARE IN THE HANDLER'S PROFITS RESULTING FROM REDUCED
COSTS. 

/24/  SEE KESSEL, SUPRA, N. 12, AT 65-66 (1967).  AFTER CRITICIZING
THE PRESENT UNDERCOMPENSATION FOR TRANSPORTATION COSTS FROM FARAWAY
ZONES AS A DISGUISED SUBSIDY TO NEARBY PRODUCERS, RESULTING IN AN
INEFFICIENT ALLOCATION OF ECONOMIC RESOURCES, THE AUTHOR DRAWS A
COMPARISON WITH THE NEARBY DIFFERENTIAL LAMENTING, "HOWEVER WEAK THE
CASE FOR ZONE DIFFERENTIALS THAT FAIL TO DEPICT TRANSPORTATION COSTS,
IT IS INFINITELY STRONGER THAN THE CASE FOR LOCATION DIFFERENTIALS." 

/25/  THE SECRETARY'S 1964 FINDINGS INCLUDE THE FOLLOWING:  "THE
FARM LOCATION DIFFERENTIAL PROVISIONS UNDER THE PRESENT NEW ENGLAND
ORDERS SHOULD BE CONTINUED UNDER THE MASSACHUSETTS-RHODE ISLAND ORDER
AND THE CONNECTICUT ORDER. 

"A GROUP OF NINE COOPERATIVE ASSOCIATIONS, WHICH REPRESENTS
PRINCIPALLY PRODUCERS WHOSE FARMS ARE LOCATED OUTSIDE ANY OF THE
SPECIFIED FARM LOCATION DIFFERENTIAL AREAS, PROPOSED THAT FARM LOCATION
DIFFERENTIALS BE ELIMINATED UNDER THE NEW ENGLAND ORDERS.  THREE OTHER
COOPERATIVE ASSOCIATIONS PROPOSED THAT A PRODUCER WHOE FARM IS LOCATED
WITHIN NEW ENGLAND AND WHO IS PRESENTLY ELIGIBLE TO RECEIVE A FARM
LOCATION DIFFERENTIAL . . . UNDER ANY NEW ENGLAND ORDER BE ELIGIBLE TO
RECEIVE THE SAME DIFFERENTIAL IRRESPECTIVE OF THE NEW ENGLAND ORDER
UNDER WHICH HIS MILK IS POOLED.  ANOTHER COOPERATIVE ASSOCIATION
PROPOSED THAT THE FARM LOCATION DIFFERENTIALS BE INCREASED . . . .

    .          .          .          . 

" . . . (FARM LOCATION DIFFERENTIALS HAVE BEEN IN EFFECT UNDER THE
SEVERAL NEW ENGLAND ORDERS SINCE THE INCEPTION OF THE ORDERS.  THE
DIFFERENTIALS WERE ADOPTED TO REFLECT IN THE PRICING STRUCTURE OF THE
ORDERS HISTORICAL PRICE RELATIONSHIPS BY LOCATION WHICH PREVAILED IN
THESE MARKETS.  IT WAS FOUND THAT CUSTOMARILY SOMEWHAT HIGHER VALUES,
ABOVE THOSE WHICH NORMALLY REFLECTED TRANSPORTATION COSTS, ATTACHED TO
MILK PRODUCED NEAR THE PRINCIPAL CONSUMPTION CNETERS AS COMPARED TO THE
MARKET VALUE OF MILK PRODUCED IN THE MORE DISTANT AREAS OF THE
MILKSHED. 

"WHILE CONSIDERABLE TESTIMONY IN SUPPORT OF REMOVAL OF THE
PROVISIONS WAS RECEIVED, IT WAS NOT ESTABLISHED THAT THE FARM LOCATION
DIFFERENTIAL PROVISIONS ARE RESULTING IN UNSTABLE OR DISRUPTIVE
MARKETING CONDITIONS WHICH WARRANT THEIR DELETION FROM THE ORDERS AT
THIS TIME.  ALTHOUGH CERTAIN MARKETING PROBLEMS IN THE NEARBY AND
INTERMEDIATE MARKET AREAS WERE REFERRED TO IN THE TESTIMONY, THESE
PROBLEMS ARE NOT THE RESULT OF PRODUCTION INCREASES ON FARMS IN THESE
AREAS WHICH LOGICALLY MIGHT BE ATTRIBUTABLE TO THE HIGHER RETURNS TO
PRODUCERS IN THESE AREAS.  SUCH INCREASES HAVE NOT BEEN SIGNIFICANTLY
DIFFERENT FROM THOSE ON FARMS NOT ELIGIBLE FOR THE FARM LOCATION
DIFFERENTIALS."  (J.A. 349-351). 

THERE IS NO REASON TO DISPUTE THE SECRETARY'S FINDING THAT THE
DIFFERENTIALS HAVE NO DISRUPTIVE EFFECT ON THE MARKET.  THE ISSUE,
HOWEVER, IS WHETHER THE PROVISIONS ARE AUTHORIZED BY STATUTE.  THE
SECRETARY'S ORDER IS DEVOID OF ANY ECONOMIC JUSTIFICATION AND RELIES
SOLELY ON THE HISTORICAL FACTOR OF THE NEARBY PRODUCER'S FAVORABLE
SHARE OF THE FLUID USE MARKET.  SEE ALSO REPORT TO THE SECRETARY OF
AGRICULTURE BY THE FEDERAL MILK ORDER STUDY COMMITTEE 74-75 (1962). 

/26/  SEE REPORT TO THE SECRETARY OF AGRICULTURE BY THE FEDERAL MILK
ORDER STUDY COMMITTEE, SUPRA, N. 25, AT 75. 

/27/  SEE J.A. 455 REPORTING EXCERPTS FROM THE SECRETARY'S DECISION
OF OCTOBER 21, 1958, ACCOMPANYING THE ORDER FOR THE SOUTHEASTERN NEW
ENGLAND MARKETING AREA. 

/28/  JUDGE FRANK EXPRESSED THE VIEW IN QUEENSBORO FARM PRODS.  V.
WICKARD, 137 F.2D 969 (C.A.2D CIR. 1943), THAT CONGRESS INTENDED TO
ADOPT THE INTERVENING ADMINISTRATIVE INTERPRETATION OF THE "USE"
LANGUAGE OF SEC. 8C(5)(A) BY ITS 1937 RE-ENACTMENT.  THE CONSTRUCTION
OF THE "USE" PROVISION MAY WELL HAVE CAUSED MORE CONCERN THAN THE
INTERPRETATION OF THE SEC. 8C(5)(B) DIFFERENTIALS.  IN ANY EVENT, JUDGE
FRANK'S ASSUMPTION THAT CONGRESS GAVE "CAREFUL CONSIDERATION . . . IN
CONNECTION WITH A RE-ENACTMENT," 137 F.2D, AT 977, IS NOT SUPPORTED BY
CITATION TO SPECIFIC LEGISLATIVE HISTORY THAT WOULD INDICATE THAT
CONGRESS HAD IN MIND SPECIFIC PROBLEMS IN CONNECTION WITH THE
ADMINISTRATION OF THE MARKETING PROVISIONS. 

/29/  THE 1936 ORDER PROVIDED FOR PAYMENT OF A UNIFORM PRICE SUBJECT
TO ADJUSTMENTS AND WITH A SPECIAL EXCEPTION FOR "ANY PRODUCER, WHOSE
FARM IS LOCATED WITHIN FORTY (40) MILES OF THE STATE HOUSE IN BOSTON
AND WHO DELIVERS MILK TO SUCH HANDLER AT A PLANT LOCATED WITHIN FORTY
(40) MILES OF THE STATE HOUSE IN BOSTON, AT $3.30 PER HUNDREDWEIGHT FOR
THAT QUANTITY OF MILK DELIVERED BY SUCH PRODUCER NOT IN EXCESS OF THE
BASE OF SUCH PRODUCER."  (EMPHASIS SUPPLIED.)  ART.  VIII, SEC. 1(2). 

/30/  SECTION 4 OF THE ACT PROVIDED:     "NOTHING IN THIS ACT SHALL
BE CONSTRUED AS INVALIDATING ANY MARKETING AGREEMENT, LICENSE, OR
ORDER, OR ANY REGULATION RELATING TO, OR ANY PROVISION OF, OR ANY ACT
OF THE SECRETARY OF AGRICULTURE IN CONNECTION WITH, ANY SUCH AGREEMENT,
LICENSE, OR ORDER WHICH HAS BEEN EXECUTED, ISSUED, APPROVED, OR DONE
UNDER THE AGRICULTURAL ADJUSTMENT ACT, OR ANY AMENDMENT THEREOF, BUT
SUCH MARKETING AGREEMENTS, LICENSES, ORDERS, REGULATIONS, PROVISIONS,
AND ACTS ARE HEREBY EXPRESSLY RATIFIED, LEGALIZED, AND CONFIRMED." 

/31/  TO THE EXTENT THAT CONGRESS COULD BE SAID TO HAVE ACTED
AGAINST THE BACKGROUND OF THE 1936 ORDER, THE COURT MUST REJECT
PETITIONERS' ARGUMENT.  THE 1936 ORDER WAS SUPERSEDED BY THE 1937 ORDER
WHICH DIFFERED IN APPROACH.  THE PROVISION FOR NEARBY DIFFERENTIALS IN
THE 1936 ORDER WAS OBSCURED BY ALLOWING A MORE FAVORABLE TOTAL PRICE TO
NEARBY PRODUCERS.  SEE N. 29, SUPRA.  THE 21[ DIFFERENTIAL INCORPORATED
IN THE 1937 ORDER FOR THE BENEFIT OF INTERMEDIATE NEARBY ZONES WAS NOT
INCLUDED IN THE 1936 ORDER.  THE 21[ DIFFERENTIAL PROVIDED IN ART.
VIII, SEC. 4(2), OF THE 1936 ORDER COULD HAVE BEEN VIEWED AS A TRUE
MARKET DIFFERENTIAL SINCE ITS PAYMENT DEPENDED ON DELIVERY TO A HANDLER
WITHIN A 40-MILE ZONE FROM A PRODUCER BEYOND A 40-MILE ZONE.  FURTHER,
AS NOTED BY THE COURT BELOW, SEC. 4 IS TYPICAL OF STATUTORY BOILERPLATE
TRADITIONALLY INCLUDED IN LEGISLATIVE RE-ENACTMENTS, TO AVOID BREAKS IN
REGULATORY CONTINUITY.  131 U.S.APP.D.C.,AT 119, 402 F.2D, AT 670. 

/32/  SECTION 8C(9) OF THE ACT, 7 U.S.C. 608C(9), PROVIDES THAT NO
ORDER SHALL BECOME EFFECTIVE UNTIL THE SECRETARY DETERMINES: 

"(B) THAT THE ISSUANCE OF SUCH ORDER IS THE ONLY PRACTICAL MEANS OF
ADVANCING THE INTERESTS OF THE PRODUCERS OF SUCH COMMODITY PURSUANT TO
THE DECLARED POLICY, AND IS APPROVED OR FAVORED: 

"(I) BY AT LEAST TWO-THIRDS OF THE PRODUCERS . . . WHO, DURING A
REPRESENTATIVE PERIOD DETERMINED BY THE SECRETARY, HAVE BEEN ENGAGED,
WITHIN THE PRODUCTION AREA SPECIFIED IN SUCH MARKETING AGREEMENT OR
ORDER, IN THE PRODUCTION FOR MARKET OF THE COMMODITY SPECIFIED THEREIN,
OR WHO, DURING SUCH REPRESENTATIVE PERIOD, HAVE BEEN ENGAGED IN THE
PRODUCTION OF SUCH COMMODITY FOR SALE IN THE MARKETING AREA SPECIFIED
IN SUCH MARKETING AGREEMENT, OR ORDER, OR 

"(II) BY PRODUCERS WHO, DURING SUCH REPRESENTATIVE PERIOD, HAVE
PRODUCED FOR MARKET AT LEAST TWO-THIRDS OF THE VOLUME OF SUCH COMMODITY
PRODUCED FOR MARKET WITHIN THE PRODUCTION AREA SPECIFIED IN SUCH
MARKETING AGREEMENT OR ORDER, OR WHO, DURING SUCH REPRESENTATIVE
PERIOD, HAVE PRODUCED AT LEAST TWO-THIRDS OF THE VOLUME OF SUCH
COMMODITY SOLD WITHIN THE MARKETING AREA SPECIFIED IN SUCH MARKETING
AGREEMENT OR ORDER." 

/33/  LOWER COURTS HAVE, IN SOME CIRCUMSTANCES, PERMITTED AN AGENCY
TO RELY ON THE APPROVAL OF THOSE AFFECTED BY AN ACTION AS EVIDENCE THAT
THE ACTION IS IN THE "PUBLIC INTEREST."  COMPARE CITIZENS FOR ALLEGAN
COUNTY V. FPC, 134 U.S.APP.D.C. 229, 414 F.2D 1125 (1969), WITH MARINE
SPACE ENCLOSURES V. FMC, 137 U.S.APP.D.C. 9, 420 F.2D 577 (1969).  WE
NEED NOT CONSIDER WHAT SCOPE, IF ANY, MAY BE GIVEN TO THESE
PRINCIPLES. 

THE CHIEF JUSTICE AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

THE CENTRAL QUESTION IN THIS CAUSE IS WHETHER A PROVISION IN THE
SECRETARY OF AGRICULTURE'S BOSTON MILK MARKET REGULATION WHICH PROVIDES
THAT FARMERS CLOSE TO BOSTON WILL RECEIVE A HIGHER PRICE FOR THEIR MILK
THAN FARMERS FARTHER AWAY IS VALID UNDER THE AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937, AS AMENDED, 50 STAT. 246, 7 U.S.C. 601 ET SEQ.
(1964 ED. AND SUPP. IV).  THE MAJORITY CONCLUDES THAT THIS HIGHER
PAYMENT CAN BE SUSTAINED ONLY IF IT REPRESENTS "COMPENSATION FOR
RENDERING AN ECONOMIC SERVICE,"  ANTE, AT 188, AND THEN HOLDS THAT
SINCE THE SECRETARY HAS NOT PROVIDED SUCH AN ECONOMIC JUSTIFICATION FOR
THIS PAYMENT, IT IS INVALID.  THE EFFECT OF AFFIRMING THE JUDGMENT
BELOW IS THAT CHALLENGED PAYMENTS WHICH HAVE BEEN PLACED IN A SPECIAL
FUND SINCE JUNE 1967 AND NOW AMOUNT TO OVER $8,000,000 WILL BE
DISTRIBUTED TO ALL FARMERS SELLING MILK IN THE BOSTON MARKET INSTEAD OF
ONLY THOSE LOCATED NEAR BOSTON.  THIS REPRESENTS A DRASTIC CHANGE IN
THE DISTRIBUTION OF THE INCOME FROM THE SALE OF MILK SINCE ONLY THE
NEARBY FARMERS HAVE RECEIVED THESE ADDITIONAL PAYMENTS FOR AT LEAST 30
YEARS.  MY STUDY OF THE LEGISLATIVE HISTORY CONVINCES ME BEYOND ANY
DOUBT THAT THIS RESULT IS WRONG AND IN DIRECT CONFLICT WITH THE INTENT
OF CONGRESS AS EXPRESSED IN THE AGRICULTURAL MARKETING AGREEMENT ACT
AND ITS PREDECESSORS.  IN MY OPINION CONGRESS INTENDED TO PERMIT THE
SECRETARY TO REGULATE THE MILK INDUSTRY IN ACCORDANCE WITH THE
PRACTICES THAT HAD DEVELOPED IN THAT INDUSTRY PRIOR TO THE FIRST
FEDERAL REGULATION IN 1933 AND DID NOT INTEND TO ELIMINATE THE ECONOMIC
ADVANTAGES THAT SPECIFIC GROUPS HAD ENJOYED IN THE PAST.  SINCE IT IS
CLEAR BEYOND A DOUBT THAT FARMERS NEAR BOSTON RECEIVED MORE FOR THEIR
MILK THAN DID OTHER FARMERS PRIOR TO FEDERAL REGULATION, I WOULD
REVERSE THE JUDGMENT BELOW AND HOLD THIS PROVISION OF THE BOSTON MILK
ORDER VALID. 

IN ORDER TO UNDERSTAND THE PURPOSE OF THE 1937 ACT, IT IS NECESSARY
TO GO BACK TO THE 1920'S AT A TIME PRIOR TO ANY FEDERAL REGULATION.  AS
THE MAJORITY CORRECTLY POINTS OUT, THE ECONOMICS OF THE MILK INDUSTRY
AT THAT TIME OFTEN LED TO DESTRUCTIVE COMPETITION AND CHAOS.  MILK
PRODUCERS THEREFORE FORMED COOPERATIVES FOR THEIR OWN PROTECTION AND
SOLD MILK ON A COLLECTIVE BASIS.  ALL THE PARTIES IN THIS CASE AGREE,
AND THE RECORD CONCLUSIVELY SHOWS, THAT UNDER THE COOPERATIVES AT THAT
TIME FARMERS CLOSE TO MARKETING CENTERS RECEIVED MORE FOR THEIR MILK
THAN DID FARMERS FARTHER AWAY.  THIS HIGHER PRICE RESULTED FROM MANY
FACTORS, INCLUDING THE GREATER PROPORTION OF MILK FROM NEARBY FARMS
THAT WAS USED FOR FLUID PURPOSES, THE POSSIBILITY THAT THOSE FARMERS
WOULD COMPETE WITH HANDLERS BY SELLING DIRECTLY TO CUSTOMERS, SMALLER
SEASONAL VARIATION IN THE VOLUME OF MILK PRODUCED, AND HIGHER COSTS--
SUCH AS TAXES AND LAND VALUES-- INCURRED IN FARMING CLOSE TO THE
CITIES.  /1/  AS LONG AS ECONOMIC CONDITIONS REMAINED GENERALLY STABLE,
THE COOPERATIVES SUCCEEDED IN PROTECTING ALL FARMERS FROM THE DANGERS
OF OVERPRODUCTION AND EXCESSIVE COMPETITION.  THEN THE DEPRESSION SET
IN AND MILK FARMERS, LIKE SO MANY OTHER AMERICANS, WERE UNABLE TO
MAINTAIN STABLE PRICES BY SELF-REGULATION.  CONGRESS REACTED TO THIS
SITUATION BY PASSING THE AGRICULTURAL ADJUSTMENT ACT OF 1933 (A.A.A.),
48 STAT. 31, UNDER WHICH THE SECRETARY OF AGRICULTURE WAS GIVEN BROAD
POWERS TO REGULATE THE FARM ECONOMY THROUGH LICENSING.  ID., SEC. 8(3),
48 STAT. 35.  VERY FEW DETAILS OR STANDARDS DESCRIBING THE SECRETARY'S
POWERS WERE PROVIDED IN THE 1933 ACT, AND THERE WAS NO ATTENTION GIVEN
TO SPECIFIC PROBLEMS OF NEARBY FARMERS IN THE MILK INDUSTRY.  UNDER THE
PROVISIONS OF THAT ACT THE SECRETARY ISSUED A LICENSE FOR THE BOSTON
MARKET IN 1933 AND THIS FIRST LICENSE INCLUDED PROVISIONS THAT
EFFECTIVELY MAINTAINED THE HISTORICAL PRICE ADVANTAGE OF PRODUCERS
CLOSE TO BOSTON.  /2/  IN 1935 BILLS WERE INTRODUCED IN CONGRESS TO
AMEND THE A.A.A.  /3/  AND HEARINGS WERE HELD ON THOSE BILLS IN
FEBRUARY AND MARCH OF THAT YEAR.  /4/  IN MAY 1935 THIS COURT HELD IN
SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495, THAT PROVISIONS
OF THE NATIONAL INDUSTRIAL RECOVERY ACT, 48 STAT. 195, WERE
UNCONSTITUTIONAL, IN PART BECAUSE THAT ACT DELEGATED POWERS TO AN
ADMINISTRATIVE AGENCY WITHOUT PROVIDING ADEQUATE STANDARDS AND
GUIDELINES.  THE CONGRESSIONAL COMMITTEES CONSIDERING THE AMENDMENTS
IMMEDIATELY RECOGNIZED THAT THE SCHECHTER DECISION CAST CONSIDERABLE
DOUBT ON THE VALIDITY OF THE A.A.A. AND THEY THEREFORE REPORTED OUT A
COMPLETELY AMENDED BILL WHICH SET FORTH DETAILED DESCRIPTIONS OF THE
POWERS AND STANDARDS THAT THE SECRETARY WAS TO EMPLOY.  /5/  AS
REPORTED AND PASSED BY CONGRESS, THAT BILL CONTAINED SPECIFIC
PROVISIONS CONCERNING THE MILK INDUSTRY, AND IT IS ,HOSE PROVISIONS
THAT ARE INVOLVED IN THE PRESENT CASE.  /6/  THE COMMITTEE REPORTS
ACCOMPANYING THAT BILL MAKE IT ABUNDANTLY CLEAR THAT A PRIMARY PRUPOSE
OF THE BILL WAS TO "ELIMINATE QUESTIONS OF IMPROPER DELEGATION OF
LEGISLATIVE AUTHORITY RAISED BY THE DECISION IN SCHECHTER . . . ."  /7/
THERE IS NO INDICATION THAT WHEN CONGRESS PASSED THOSE AMENDMENTS IT
INTENDED TO CUT BACK ON OR LIMIT THE AUTHORITY THE SECRETARY HAD
ACTUALLY EXERCISED IN REGULATING MILK UNDER THE 1933 ACT, BUT RATHER
THE PURPOSE WAS TO AVOID JUDICIAL INVALIDATION RESULTING FROM THE
ABSENCE OF CONSTITUTIONALLY SUFFICIENT STANDARDS.  HISTORY AND THE
LEGISLATIVE RECORD MAKE IT QUITE CLEAR THAT CONGRESS IN 1935 WAS
CONCERNED, NOT ABOUT LIMITING AN EXCESSIVELY AGGRESSIVE SECRETARY, BUT
ABOUT OVERCOMING THE LIMITATIONS IMPOSLD BY A COURT THAT WAS
FRUSTRATING THE CONGRESSIONAL PURPOSE BY HOLDING LAWS
UNCONSTITUTIONAL.  PURSUANT TO THE 1935 ACT, THE SECRETARY ISSUED A NEW
ORDER IN 1936 FOR THE BOSTON MARKET WHICH, LIKE THE 1933 ORDER,
CONTAINED PROVISIONS FOR ADDITIONAL PAYMENTS TO NEARBY FARMERS.  IN
ISSUING THIS ORDER HE EXPLICITLY RELIED ON THE HISTORICAL, ECONOMIC
FACTORS WHICH JUSTIFIED THESE ADDITIONAL PAYMENTS.  (J.A. 224.)  THE
EFFECTIVENESS OF THE 1935 AMENDMENTS WAS ALSO JEOPARDIZED BY COURT
DECISIONS, /8/  AND CONGRESS AGAIN ACTED BY PASSING A NEW LAW, THE
AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, 50 STAT. 246.  THIS
STATUTE RE-ENACTED THE MILK MARKETING PROVISIONS OF THE 1935 ACT IN
SUBSTANTIALLY THE SAME FORM AND FURTHER PROVIDED THAT ALL MARKET ORDERS
ISSUED UNDER THAT ACT WERE "EXPRESSLY RATIFIED, LEGALIZED, AND
CONFIRMED."  50 STAT. 249.  PROCEEDING UNDER THE NEW ACT THE SECRETARY
REINSTATED THE 1936 BOSTON ORDER INCLUDING THE ADDITIONAL PAYMENTS TO
FARMERS LOCATED NEARER THE CITY, AND THAT ORDER AND THE 1937 ACT HAVE
REMAINED IN SUBSTANTIALLY THE SAME FORM UNTIL THIS TIME.  WITH THIS
GENERAL HISTORICAL PICTURE IN MIND, IT IS EASIER TO ANSWER THE CENTRAL
LEGAL QUESTION IN THIS CASE WHICH IS WHETHER THE 1937 ACT AUTHORIZES
THE SECRETARY OF AGRICULTURE TO PROVIDE THAT NEARBY FARMERS WILL
RECEIVE MORE FOR THEIR MILK THAN FARMERS FARTHER AWAY. 

THE ACT PROVIDES THAT THE SECRETARY SHALL ESTABLISH BY ORDER CERTAIN
BASIC PRICES FOR MILK DELIVERED BY PRODUCERS AND ALLOWS HIM TO ADJUST
THAT BASIC PRICE TO REFLECT "VOLUME, MARKET, AND PRODUCTION
DIFFERENTIALS CUSTOMARILY APPLIED BY THE HANDLERS SUBJECT TO SUCH ORDER
. . . ."  7 U.S.C. 608C(5)(B), CL. (A) (1964 ED., SUPP. IV).  /9/  THE
SECRETARY HERE ARGUES THAT THE PAYMENT OF ADDITIONAL SUMS TO FARMERS
CLSOE TO BOSTON IS AN AUTHORIZED "MARKET DIFFERENTIAL."  THE ARGUMENT
CANNO:BE SETTLED SIMPLY ON THE BASIS OF ,HE STATUTORY LANGUAGE SINCE
THERE IS NO DEFINITION OF THE TERM "MARKET."  HOWEVER THE LEGISLATIVE
HISTORY MAKLS IT CLEAR BEYOND ANY DOUBT THAT THIS PROVISION WAS
DESIGNED TO ALLOW THE SECRETARY BROAD LEEWAY IN REGULATING THE MILK
INDUSTRY IN ACCORDANCE WITH PRIOR PRACTICES AND DIFFERENTIALS IN THE
UNREGULATED MARKET.  THE COMMITTEE REPORTS IN BOTH HOUSES SAID THAT THE
MILK ORDER PROVISIONS IN THE ALT WERE DESIGNED TO ,FOLLOW THE METHODS
EMPLOYED BY COOPERATIVE ASSOCIATIONS OF PRODUCERS PRIOR TO THE
ENACTMENT OF THE AGRICULTURAL ADJUSTMENT ACT AND THE PROVISIONS OF
LICENSES ISSUED PURSUANT TO THE PRESENT SECTION 8(3) OF THE
AGRICULTURAL ADJUSTMENT ACT."  /10/  THE ONLY DISCUSSION OF THESE
PROVISIONS DURING THE CONGRESSIONAL FLOOR DEBATES FULLY SUPPORTS THIS
STATEMENT.  SENATOR COPELAND, A FORMER COMMISSIONER OF HEALTH IN NEW
YORK CITY AND A MAN WELL ACQUAINTED WITH THE MILK INDUSTRY IN NEW
ENGLAND, ASKED SENATOR MURPHY, THE FLOOR MANAGER FOR THE BILL, ABOUT
THE POSSIBILITY THAT FARMERS NEAR THE CITIES WOULD RECEIVE THE SAME
PRICE FOR MILK AS FARMERS FARTHER AWAY.  SENATOR MURPHY'S INITIAL
ANSWER INDICATED THIS WOULD BE SO, BUT WHEN SENATOR COPELAND PRESSED
THE INQUIRY FURTHER, STATING THAT NOT ALL FACTORS HAD BEEN CONSIDLRED,
SENATOR MURPHY INDICATED THAT THE PROVISIONS FOR SPECIFIC DIFFERENTIALS
"ADOPT THE PRESENT PRACTICE OF BUSINESS."  /11/  TO ME THAT REPLY
INDICATES THAT NEARBY DIFFERENTIALS WOULD BE PERMISSIBLE, IF THEY WERE
PART OF THE BUSINESS PRACTICE-- AS THEY WERE.  THE MAJORITY DIMINISHES
THE IMPORTANCE OF THIS DISCUSSION BY SAYING THAT IT REPRESENTS THE
VIEWS OF ONLY TWO MEN, NOT THOSE OF THE COMMITTEE, BUT ANYONE
ACQUAINTED WITH THE REALITIES OF THE UNITED STATES SENATE KNOWS THAT
THE REMARKS OF THE FLOOR MANAGER ARE TAKEN BY OTHER SENATORS AS
REFLECTING THE VIEWS OF THE COMMITTEE ITSELF.  THIS HISTORY MAKES IT
CLEAR THAT CONGRESS DID NOT INTEND TO LIMIT THE AUTHORIZED
DIFFERENTIALS TO ANY SPECIFIC PAYMENTS, BUT RATHER INTENDED TO PERMIT
THE SECRETARY TO EMPLOY WHATEVER PRACTICES, CONSISTENT WITH THE HISTORY
OF THE UNREGULATED MARKET, HE FOUND NECESSARY TO ACHIEVE STABILITY IN
THE MILK INDUSTRY. 

APPLYING THESE CONSIDERATIONS IT BECOMES PLAIN THAT THE ADDITIONAL
PAYMENTS TO NEARBY FARMERS ARE AUTHORIZED AS A "DIFFERENTIAL
CUSTOMARILY APPLIED."  NEARBY FARMERS HAD ALWAYS OBTAINED A HIGHER
PRICE FOR THEIR MILK THAN FARMERS FARTHER AWAY AND THE SECRETARY'S
REGULATIONS IN 1933 AND 1936 REFLECTED THIS HISTORICAL FACT. 
REINSTATEMENT OF THE NEARBY DIFFERENTIALS AFTER PASSAGE OF THE 1937 ACT
MERELY CONTINUED THIS PRIOR ADMINISTRATIVE PRACTICE, BASED ON THE
EARLIER ECONOMIC REALITIES, OF PAYING MORE FOR MILK PRODUCED ON FARMS
CLOSE TO BOSTON.  HAD CONGRESS INTENDED TO ELIMINATE THIS FEATURE OF
THE PRIOR PRACTICE, IT WOULD HAVE BEEN EASY TO SAY SO, BUT THERE IS
ABSOLUTELY NOTHING IN THE STATUTE OR IN THE LEGISLATIVE HISTORY THAT
DEMONSTRATES A DESIRE TO ALTER THE ADVANTAGE NEARBY FARMERS HAD ALWAYS
ENJOYED.     MY CONCLUSION THAT THIS DIFFERENTIAL IS AUTHORIZED IS
BUTTRESSED BY THE ACTIONS OF CONGRESS AND THE SECRETARY SINCE 1937. 
THERE HAS ALWAYS BEEN A HEALTHY CONTROVERSY AMONG FARMERS ABOUT THIS
DIFFERENTIAL, AND EXTENSIVE HEARINGS IN 1963 BROUGHT FORH STRONG
ARGUMENTS AGAINST CONTINUING IT.  (J.A. 360-599.)  YET CONGRESS, EVEN
THOUGH IT AMENDED THE STATUTE IN 1965, 79 STAT. 1187, STILL HAS NOT IN
ANY WAY INDICATED THAT THE NEARBY DIFFERENTIAL WAS UNAUTHORIZED BY THE
1937 ACT OR THAT IT SHOULD BE ELIMINATED AT THIS TIME.  SIMILARLY THE
SECRETARY HAS CONTINUALLY REVIEWED THIS PROVISION AND REFUSED TO
ELIMINATE IT, THE MOST RECENT TIME BEING 1964.  (J.A. 346, 349.)  SINCE
CONGRESS, IN MY VIEW, INTENDED IN 1933, 1935, AND 1937 TO AUTHORIZE
PAYMENTS LIKE THE NEARBY DIFFERENTIAL AND SINCE IT HAS NOT ALTERED THIS
AUTHORIZATION IN THE PAST 32 YEARS, I CANNOT AGREE THAT THIS COURT
SHOULD OR PROPERLY CAN ELIMINATE THE PAYMENT, OSTENSIBLY THROUGH A
PROCESS OF STATUTORY INTERPRETATION. 

THIS INTERPRETATION IS NOT BASED ON A THEORY OF LEGISLATIVE SILENCE
AS THE MAJORITY SEEMS TO IMPLY.  TO ME THE LEGISLATIVE HISTORY SPEAKS
CLEARLY IN SAYING THAT CONGRESS INTENDED THE SECRETARY TO REGULATE THE
INDUSTRY IN ACCORDANCE WITH PRIOR PRACTICES, AND THE STATUTORY
LANGUAGE, STATEMENTS IN COMMITTEE REPORTS, AND FLOOR DEBATES DO NOT
"ILLUMNE TWO DIFFERENT ROADS," ANTE, AT 185.  I SEE ONLY ONE PATH THAT
IS MARKED BY THL LEGISLATIVE RECORD, AND THE ONLY SILENCE I PERCEIVE IS
THE STRIKING ABSENCE OF ANY STATEMENTS IN THE STATUTE OR THE
LEGISLATIVE HISTORY THAT SUPPORT THE MAJORITY'S INTERPRETATION. 

MY CONCLUSION THAT THE LOCATION DIFFERENTIAL IS AUTHORIZED BY THE
ACT FINDS SUPPORT IN OTHER JUDICIAL DECISIONS.  IN UNITED STATES V.
ROCK ROYAL CO-OP., 307 U.S. 533 (1939), CERTAIN MILK HANDLERS MADE A
BROADSIDE ATTACK ON THE NEW YORK ORDER ISSUED UNDER THE 1937 ACT.  THIS
COURT REJECTED THAT CHALLENGE.  ONE PART OF THE ARGUMENT WAS THAT THE
NEARBY DIFFERENTIAL PROVISION OF THAT ORDER WAS INVALID.  THIS COURT
NOTED THAT "(THE ACT AUTHORIZES SUCH AN ARRANGEMENT," CITING THE
PROVISION FOR MARKET DIFFERENTIALS CUSTOMARILY APPLIED.  ID., AT 567. 
ALTHOUGH THAT PROVISION WAS PROMULGATED UNDER SEC. 8C(5)(A) OF THE ACT,
THE IDENTICAL LANGUAGE SUPPORTING THAT CONCLUSION IS FOUND IN SEC.
8C(5)(B), AND IT IS THAT LATTER SECTION WHICH IS INVOLVED IN THE
PRESENT CASE.  THE MAJORITY ATTEMPTS TO DISTINGUISH THAT CASE BY NOTING
THAT IT WAS A SUIT BROUGHT BY ,HE GOVERNMENT AGAINS, HANDLERS, BUT IT
IS DIFFICULT TO SEE WHAT DIFFERENCE THAT MAKES.  IT DOES NOT MATTER WHO
SUES, IF THE COURT DECIDES AN ISSUE OF STATUTORY INTERPRETATION THAT
DECISION SHOULD REMAIN THE SAME EVEN IF THE LITIGANTS CHANGE.  /12/ 

THE NEARBY DIFFERENTIAL OF THE BOSTON ORDER INVOLVED HERE WAS ALSO
APPROVED BY THE FIRST CIRCUIT IN GREEN VALLEY CREAMERY V. UNITED
STATES, 108 F.2D 342 (1939).  THE MAJORITY'S DISMISSAL OF THAT CASE ON
THE CONCLUSION THE HANDLERS DID NOT HAVE STANDING TO RAISE THIS ISSUE
IS IRRELEVANT.  THE FIRST CIRCUIT THERE FOUND THE DIFFERENTIAL VALID
AND THEN STATED THAT "(FURTHERMORE" THE HANDLERS LACKED STANDING.  ID.,
AT 346.  IT DOES NOT MATTER TO ME WHETHER THE DECISION ON THE VALIDITY
OF THE LOCATION DIFFERENTIAL IS CLASSIFIED AS DICTUM OR A HOLDING.  THE
POINT REMAINS THAT THE FIRST CIRCUIT CONSIDERED THESE PAYMENTS AND
FOUND THEM EXPRESSLY PROVIDED FOR BY THE LANGUAGE OF SEC. 8C(5)(B). 
IBID. 

THE MAJORITY DISAGREES WITH THE INTERPRETATION OF THE STATUTE SET
FORTH ABOVE AND INSTEAD FINDS THAT THE FOUNDATION OF THE PORTION OF
1937 ACT INVOLVED HERE WAS TO PROVIDE UNIFORM PRICES TO ALL PRODUCERS,
WITH ADJUSTMENTS TO THAT UNIFORM PRICE ONLY AS "COMPENSATION FOR
RENDERING AN ECONOMIC SERVICE."  ANTE, AT 188.  THIS INTERPRETATION, AS
I UNDERSTAND IT, WOULD REQUIRE THE SECRETARY TO DISREGARD THE
HISTORICAL PRICE ADVANTAGE NEARBY PRODUCERS HAD IN THE SALE OF THIER
MILK, AND TO CONSIDER ONLY WHETHER THERE IS A PRESENT ECONOMIC
JUSTIFICATION FOR PARTICULAR PAYMENTS.  I RESPECTFULLY SUBMIT THAT THIS
INTERPRETATION CANNOT BE SUPPORTED BY THE LANGUAGE OF THE ACT
CONSIDERED AS A WHOLE OR BY THE RELEVANT EXPRESSIONS OF CONGRESSIONAL
INTENT FOUND IN THE LEGISLATIVE HISTORY.  THE THEORY OF THIS ACT
ADOPTED BY THE MAJORITY IS CLEARLY NOT THAT OF CONGRESS, BUT ONE
CREATED BY THE COURT ITSELF. 

THE CONCLUSION THAT EACH OF THE DIFFERENTIALS SPECIFIED IN THE ACT
REPRESENTS ONLY "COMPENSATION FOR RENDERING AN ECONOMIC SERVICL" FINDS
NO SUPPORT WHATSOEVER IN THE LANGUAGE OF THE ACT OR THE LEGISLATIVE
HISTORY.  NONE OF THE ADJUSTMENTS DESCRIBED IN THE ACT IS DEFINED IN
TERMS OF ANY "ECONOMIC SERVICE."  THE MAJORITY DOES NOT REFER TO ANY
LEGISLATIVE HISTORY THAT INDICATES SUCH A DEFINITION WAS INTENDED.  IT
MAY WELL BE POSSIBLE FOR AN ANALYST TO FIT THE LANGUAGE OF THE ACT, THE
COMMITTEE REPORTS, AND THE FLOOR DEBATES INTO A COHERENT PATTERN OF
ECONOMIC SERVICES, BUT HAD CONGRESS DESIRED TO REQUIRE THIS AS A
TOUCHSTONE FOR THE AUTHORIZED DIFFERENTIALS, IT WOULD HAVE BEEN EASY
FOR IT TO HAVE SAID SO. CONGRESS DID NOT CHOOSE TO DO SO IN 1933, 1935,
OR 1937, AND IT HAS NOT DONE SO IN THE INTERVENING 32 YEARS.  MOREOVER,
IF THERE IS ANY PATTERN INTO WHICH ALL THE DIFFERENTIALS CLEARLY FIT
THAT IS FULLY SUPPORTED BY EXPRESS LEGISLATIVE HISTORY, IT IS THE CLEAR
PATTERN OF ALLOWING THE SECRETARY TO INCORPORATE PROVISIONS REFLECTING
THE CUSTOMARY PRACTICES OF THE MILK INDUSTRY ITSELF.  /13/ 

EVEN IF THE MAJORITY'S STATUTORY INTERPRETATION WERE CORRECT, I DO
NOT UNDERSTAND WHY IT WOULD LEAD TO THE CONCLUSION THAT THE JUDGMENT
BELOW SHOULD BE AFFIRMED AND THE CHALLENGED PAYMENTS DISTRIBUTED AT
THIS TIME TO ALL FARMERS.  UNTIL THIS COURT'S DECISION THE SECRETARY
HAD NO REASON TO KNOW THAT HE HAD TO JUSTIFY THE PROVISIONS OF THIS
ORDER AS "COMPENSATION FOR RENDERING AN ECONOMIC SERVICE," AND HIS
FAILURE TO HAVE PROVIDED SUCH A DEFENSE DOES NOT NECESSARILY MEAN IT IS
UNAVAILABLE.  INDEED THE COURT APPARENTLY WOULD APPROVE THIS SAME
PROVISION WERE THE SECRETARY TO ISSUE IT AGAIN, BUT ONLY IF IT WERE
THEN ACCOMPANIED BY AN ECONOMIC STUDY THAT THIS COURT-- COMPOSED OF
LAWYERS, NOT ECONOMIC OR AGRICULTURAL EXPERTS-- FINDS ACCEPTABLE.  IF
SUCH A JUSTIFICATION IS PRESENT, THE DIFFERENTIAL IS IN FACT LAWFUL AT
THIS TIME, AND IT WOULD NOT SEEM TO MATTER THAT THE SECRETARY HAS NOT
YET INCANTED THE PROPER MAGIC WORDS. 

I DO NOT SEE WHAT HARM WOULD FOLLOW IF THIS COURT WERE SIMPLY TO
VACATE THE JUDGMENT BELOW, REMAND THE CASES TO THE SECRETARY FOR
APPROPRIATE STUDY, AND CONTINUE TO PLACE THE PAYMENTS IN THE SPECIAL
FUND PENDING ULTIMATE RESOLUTION OF THE CONTROVERSY.  IF THE SECRETARY
CANNOT MAKE THE PROPER ECONOMIC JUSTIFICATION, THE ONLY RESULT WOULD BE
TO POSTPONE THE DAY WHEN THE ACCUMULATING FUNDS, WHICH NOW AMOUNT TO
OVER $8,000,000, WOULD BE DISTRIBUTED.  IF, ON THE OTHER HAND, HE IS
ABLE TO SHOW THAT THESE PAYMENTS COMPENSATE FOR AN ECONOMIC SERVICE,
THEN THE COURT WOULD NOT HAVE UNNECESSARILY GIVEN THE ACCUMULATED
MILLIONS TO FARMERS WHO ARE NOT LEGALLY ENTITLED TO RECEIVE THEM. 

MY CONVICTION THAT THE ACT WAS DESIGNED TO PERMIT THE SECRETARY TO
INCLUDE ADJUSTMENTS THAT REFLECTED THE PRIOR PRACTICE OF THE MILK
INDUSTRY DOES NOT MEAN THAT HE CAN ACT WITH UNLIMITED ABANDON AND
APPROVE A PAYMENT SIMPLY BECAUSE HISTORICALLY IT WAS PROVIDED FOR PRIOR
TO FEDERAL REGULATION.  THE STATUTE REQUIRES THAT THE SECRETARY ISSUE
ORDERS WHICH "WILL TEND TO EFFECTUATE THE DECLARED POLICY OF (THE ACT)
. . . ."  7 U.S.C. 608C(4).  THOSE POLICIES ARE SPECIFICALLY SET FORTH,
7 U.S.C. 602, AND IN GENERAL PROVIDE THAT ORDERS SHOULD ESTABLISH AND
MAINTAIN ORDERLY MARKETING CONDITIONS AND PARITY PRICES FOR MILK
PRODUCERS.  IN HIS LATEST PROMULGATION OF THE BOSTON ORDER THE
SECRETARY SPECIFICALLY REFUSED TO ELIMINATE THE NEARBY DIFFERENTIALS
(J.A. 349-357) AND FOUND THAT THE ORDER "WILL TEND TO EFFECTUATE THE
DECLARED POLICY OF THE ACT."  29 FED.REG.  12236.  THAT FINDING CANNOT
BE DISTURBED, NOR THE NEARBY DIFFERENTIAL INVALIDATED, UNLESS IT IS
SHOWN THAT THE ORDER IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE
ADMINISTRATIVE RECORD CONSIDERED IN ITS ENTIRETY.  CF. UNIVERSAL CAMERA
CORP. V. NLRB, 340 U.S. 474 (1951).  IN THIS ACTION THE COURT OF
APPEALS DID NOT MAKE A SPECIFIC FINDING ON THE SUBSTANTIALITY OF THE
EVIDENCE, AND THE RESPONDENTS ARGUE THAT IT IS INSUBSTANTIAL, BUT A
REVIEW OF THE ENTIRE RECORD IN LIGHT OF THE APPROPRIATE LEGAL STANDARDS
INDICATES THAT THE NEARBY DIFFERENTIAL IN THE BOSTON ORDER IS FULLY
SUPPORTED BY SUBSTANTIAL EVIDENCE. 

IN REACHING THIS CONCLUSION, IT MUST BE REMEMBERED THAT THE
SECRETARY IS REQUIRED TO FIND ONLY TWO THINGS.  FIRST, THAT THE
PROPOSED PROVISION REPRESENTS A PAYMENT CUSTOMARILY APPLIED IN THE MILK
MARKET, AND SECOND, THAT INCLUSION OF THE PROPOSED PROVISION WILL
FURTHER THE POLICIES OF THE ACT.  THE FIRST OF THESE QUESTIONS IS
ESSENTIALLY A FACTUAL ONE, AND THERE IS NO REAL ARGUMENT IN THIS ACTION
THAT THE SECRETARY WAS WRONG IN FINDING AS A MATTER OF HISTORICAL FACT
THAT NEARBY FARMERS RECEIVED ADDITIONAL PAYMENTS WHICH ARE REFLECTED IN
THE LOCATION DIFFERENTIAL.  THE RESPONDENTS DO NOT REALLY DENY THE
HISTORICAL EXISTENCE OF THIS HIGHER PRICE, BUT RATHER ATTACK ITS
LEGALITY UNDER THE ACT.  THE COURT OF APPEALS, MOREOVER, SPECIFICALLY
RECOGNIZED THE HISTORICAL FACT THAT SUCH DIFFERENTIALS EXISTED, BUT
ACCEPTED THE RESPONDENTS' ARGUMENT THAT THEY WERE ILLEGAL.  131
U.S.APP.D.C.,AT 112-114, 118, 402 F.2D, AT 663-665, 669.  AN
INDEPENDENT REVIEW OF THE RECORD CONFIRMS THE CONCLUSION THAT SUCH
DIFFERENTIALS HAD BEEN CUSTOMARY IN THE MARKET.  IT IS THUS EASY TO
CONCLUDE THAT THE FACTUAL FINDING REQUIRED BY THE ACT HAS BEEN
SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE ADMINISTRATIVE RECORD. 

THE SECOND REQUIRED FINDING, THAT THE PROVISION WILL FURTHER THE
POLICIES OF THE ACT, IS A MIXED QUESTION OF FACT AND ADMINISTRATIVE
POLICY.  THE SECRETARY HAS HELD EXTENSIVE HEARINGS IN THE PAST ON THE
PROVISIONS OF THE BOSTON MILK ORDER (J.A. 233-247, 257-302, 305-330,
360-651), AND HE HAS REPEATEDLY FOUND THAT THE NEARBY LOCATION
DIFFERENTIAL FURTHERS THE POLICIES OF THE ACT.  SINCE THIS IS
ESSENTIALLY A QUESTION OF ADMINISTRATIVE DISCRETION AND WILL BE SET
ASIDE ONLY ON A STRONG SHOWING BY THE PARTIES THAT THE FINDING IS
WITHOUT SUPPORT IN THE BASIC FACTS ON WHICH THE SECRETARY HAS RELIED,
IT IS PROPER TO SAY ON THIS RECORD THAT THIS SECOND FINDING IS
ADEQUATELY SUPPORTED.  NOTHING IN THE RESPONDENTS' ARGUMENTS INDICATES
THAT THE NEARBY DIFFERENTIAL DOES NOT FURTHER THE POLICIES OF THE ACT,
BUT RATHER THEY ARGUE ONLY THAT ELIMINATION OF THE DIFFERENTIAL WOULD
BETTER SERVE THOSE POLICIES.  BUT THIS QUESTION IS ONE FOR THE
SECRETARY, NOT FOR THE PARTIES OR FOR THIS COURT, TO DECIDE. 

WHAT IS INVOLVED HERE IS SIMPLY A QUESTION OF INTERPRETING AND
FOLLOWING THE WILL OF CONGRESS.  OVER 30 YEARS AGO CONGRESS DECIDED
THAT MILK PRODUCERS NEEDED GOVERNMENTAL ASSISTANCE IN STABILIZING THEIR
INCOME, BUT IT ALSO DECIDED THAT THIS STABILIZATION SHOULD BE
ACCOMPLISHED WITH A MINIMAL AMOUNT OF CHANGE IN THE INDUSTRY'S PRIOR
PRACTICES.  CONGRESS THEREFORE AUTHORIZED THE SECRETARY OF AGRICULTURE
TO REGULATE THE INDUSTRY AND LEFT MOST OF THE DETAILS TO HIM.  FOR OVER
30 YEARS HE HAS USED HIS AUTHORITY TO REGULATE THE BOSTON MILK MARKET,
AND HAS CONSISTENTLY FOUND IT DESIRABLE TO PROVIDE HIGHER PRICES FOR
MILK PRODUCED ON FARMS CLOSE TO BOSTON.  IT MAY WELL BE THAT THIS
DECISION IS NOT THE BEST OR THE MOST ECONOMICALLY SOUND ONE THAT HE
COULD MAKE IN LIGHT OF CHANGED ECONOMIC CONDITIONS IN 1969, BUT THAT
DECISION IS ONE CONGRESS HAS COMMITTED TO THE SECRETARY ALONE.  IN MY
VIEW THIS COURT AND THE COURT OF APPEALS IN THIS LITIGATION EFFECTIVELY
SUBSTITUTE THEIR WILL FOR THE WILL OF CONGRESS AND THEIR VIEWS OF
ECONOMICS AND WISE ADMINISTRATION FOR THOSE OF THE SECRETARY WHOM
CONGRESS SELECTED TO CARRY OUT ITS WILL.  THE COURT INDICATES THAT ITS
DECISION WILL AVOID A "WINDFALL."  ANTE, AT 197.  IN FACT THE COURT
ITSELF CREATES A WINDFALL OF OVER $8,000,000 WHICH IS SIPHONED OUT OF
THE POCKETS OF FARMERS CLOSE TO BOSTON AND BESTOWED LIKE A CHRISTMAS
PRESENT ON THOSE FARTHER AWAY.  THIS THE COURT DOES CONTRARY TO THE
INFORMED JUDGMENT OF THE SECRETARY WHO, FAITHFUL TO THE ACT, HAS
DECLARED FOR YEARS THAT DISTANT FARMERS ARE NOT ELIGIBLE FOR SUCH A
BONUS.  I AM UNABLE TO AGREE THAT THIS IS A PROPER FUNCTION FOR THE
COURT TO PERFORM AND I THEREFORE DISSENT. 

/1/  THE MAJORITY IMPLIES, ANTE, AT 181, THAT THIS HIGHER PRICE IN
THE 1920'S WAS AN ECONOMIC "DISTORTION."  THERE HAS BEEN NO SUCH
FINDING BY THE SECRETARY OR ANY OF THE COURTS BELOW, NOR WAS ANY
EVIDENCE TAKEN THAT WAS DIRECTED AT THIS ISSUE.  THIS COURT IS POORLY
EQUIPPED TO PASS JUDGMENT ON THE ECONOMIC VALIDITY OR INVALIDITY OF
THIS HIGHER PRICE, SURELY NOT AS WELL EQUIPPED AS THE SECRETARY AND THE
ECONOMISTS WHO ADVISE HIM.  IT IS THE SECRETARY, NOT THIS COURT, TO
WHOM CONGRESS HAS DELEGATED THE TASK OF FIXING THE PRICES PRODUCERS
WILL BE PAID FOR THEIR MILK AND OF MAKING THE UNDERLYING ECONOMIC
JUDGMENTS. 

/2/  THIS LICENSE ADOPTED A SOMEWHAT COMPLICATED BASE-RATING PLAN
SIMILAR TO THAT USED BY THE MILK COOPERATIVES.  SEE N. 4, ANTE, AT 173
174.  THERE IS GENERAL AGREEMENT AMONG THE PARTIES THAT THESE LICENSES
EFFECTIVELY RESULTED IN HIGHER MILK PRICES TO NEARBY FARMERS, AND THE
COURT OF APPEALS RECOGNIZED THIS FACT.  131 U.S.APP.D.C. 109, 113-114,
402 F.2D 660, 664-665.     /3/  H.R. 5585, S. 1807, 74TH CONG., 1ST
SESS. 

/4/  HEARINGS ON H.R. 5585 BEFORE THE HOUSE COMMITTEE ON
AGRICULTURE, 74TH CONG., 1ST SESS.; HEARINGS ON S. 1807 BEFORE THE
SENATE COMMITTEE ON AGRICULTURE AND FORESTRY, 74TH CONG., 1ST SESS. 

/5/  H.R. 8492, 74TH CONG., 1ST SESS. 

/6/  THESE PROVISIONS OF THE 1935 AMENDMENTS HAVE BEEN CARRIED
FORWARD, VIRTUALLY WITHOUT CHANGE, INTO THE PRESENT STATUTE.     /7/
S. REP. NO. 1011, 74TH CONG., 1ST SESS., 8; H.R. REP. NO. 1241, 74TH
CONG., 1ST SESS., 8. 

/8/  IN UNITED STATES V. BUTLER, 297 U.S. 1 (1936), THIS COURT
DECLARED THE PROCESSING TAX PROVISIONS OF THE A.A.A. INVALID, AND SOME
DISTRICT COURTS THEN HELD THAT THE ENTIRE ACT WAS INVALID.  E.G.,
UNITED STATES V. DAVID BUTTRICK CO., 15 F.SUPP.  655 (D.C. MASS. 1936),
REV'D, 91 F.2D 66 (C.A. 1ST CIR.), CERT. DENIED, 302 U.S. 737 (1937). 

/9/  THIS LANGUAGE WAS FIRST ENACTED IN THE 1935 AMENDMENTS TO THE
A.A.A., BUT WAS RE-ENACTED IN THE 1937 AGRICULTURAL MARKETING AGREEMENT
ACT WITHOUT CHANGE.  THERE IS NO RELEVANT LEGISLATIVE HISTORY FOR THE
1937 ACT, BUT THE PARTIES ALL AGREE THAT THE HISTORY OF THE 1935
AMENDMENTS ALSO APPLIES TO THE 1937 ACT.  THE DISCUSSION OF LEGISLATIVE
HISTORY IN THE TEXT IS BASED ON THE 1935 LEGISLATIVE RECORD. 

THE COMPLETE TEXT OF THE RELEVANT PORTIONS OF THE PRESENT STATUTE IS
SET FORTH IN N. 8, ANTE, AT 176-177. 

/10/  S. REP. NO. 1011, 74TH CONG., 1ST SESS., 9; H.R. REP. NO.
1241, 74TH CONG., 1ST SESS., 9.  THIS BASIC PURPOSE IS REFLECTED IN THE
FACT THAT CONGRESS PROVIDED THE SECRETARY WITH THREE DIFFERENT SCHEMES
OF REGULATION, EACH OF WHICH FOLLOWED A VARIETY OF REGULATIONS USED BY
THE MILK COOPERATIVLS.  SEE N. 10, ANTE, AT 177.  IN 1965 CONGRESS
FOLLOWED THIS SAME BASIC PURPOSE WHEN IT AMENDED THE ACT TO MAKE
EXPLICIT THE SECRETARY'S POWER TO EMPLOY BASE-RATING PLANS, DESCRIBED
IN N. 4, ANTE, AT 173-174.  SEE 79 STAT. 1187, 7 U.S.C. 608C(5)(B), CL.
(D) (1964) ED., SUPP. IV). 

/11/  THE FULL DISCUSSION IS SET OUT IN N. 22, ANTE, AT 186-187. 

/12/  THE MAJORITY ALSO SEEMS TO IMPLY, ANTE, AT 191-192, THAT ROCK
ROYAL DID NOT DECIDE THIS ISSUE SINCE THE HANDLERS DID NOT HAVE
STANDING TO RAISE IT.  IT SEEMS TO ME THAT THE COURT THERE DID DECIDE
THAT THE HANDLERS, WHO ARGUED THAT THE NEARBY DIFFERENTIAL REDUCED
THEIR OWN PROFITS, COULD RAISE THIS ISSUE. 

/13/  IN A FOOTNOTE, N. 18, ANTE, AT 184, THE MAJORITY IMPLIES THAT
THERE IS SUPPORT FOR THIS NOVEL INTERPRETATION IN OUR PRIOR DECISION IN
BRANNAN V. STARK, 342 U.S. 451 (1952), WHICH HELD INVALID A PROVISION
IN THE BOSTON MILK ORDER THAT DISTRIBUTED CERTAIN SUMS TO PRODUCER
COOPERATIVES.  THAT CASE SPECIFICALLY HELD THAT SUCH PAYMENTS WERE NOT
AUTHORIZED BY THE CATCHALL PROVISION IN THE ACT PERMITTING PROVISIONS
IN MILK ORDERS "(INCIDENTAL TO, AND NOT INCONSISTENT WITH, THE TERMS
AND CONDITIONS SPECIFIED IN (OTHER SECTIONS) AND NECESSARY TO
EFFECTUATE THE OTHER PROVISIONS OF SUCH ORDER."  7 U.S.C. 608C(7)(D);
BRANNAN, AT 457-458.  IT IS TRUE THAT THE MAJORITY THERE DID DECIDE
THAT THE CHALLENGED PAYMENTS DID NOT REPRESENT COMPENSATION FOR AN
ECONOMIC BENEFIT RECEIVED BY ALL PRODUCERS, BUT REGARDLESS OF THE
VALIDITY OF THAT DECISION, IT IS IRRELEVANT TO THE DECISION IN THIS
CASE.  IT MAY BE THAT PAYMENTS THAT ARE SOUGHT TO BE JUSTIFIED SOLELY
ON THE BASIS OF THE "NECESSARY PROVISIONS" SECTION REQUIRE INDEPENDENT
ECONOMC JUSTIFICATION, BUT THAT CERTAINLY DOES NOT MEAN THAT WHERE THE
SECRETARY RELIES ON A SPECIFIC ADJUSTMENT SET FORTH IN THE ACT, AS HE
DOES HERE, HE MUST ALSO DEFEND IT ON ECONOMIC GROUNDS. 

LAWRENCE D. HOLLMAN ARGUED THE CAUSE FOR PETITIONERS IN NO. 25. 
WITH HIM ON THE BRIEFS WAS CARLYLE C. RING, JR. DANIEL M. FRIEDMAN
ARGUED THE CAUSE FOR PETITIONER IN NO. 52.  ON THE BRIEFS WERE
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS,
PETER L. STRAUSS, ALAN S. ROSENTHAL, AND WALTER H. FLEISCHER. 

CHARLES PATRICK RYAN ARGUED THE CAUSE FOR RESPONDENTS IN BOTH
CASES.  WITH HIM ON THE BRIEF WAS EDWARD J. RYAN. 

EDWIN H. AMIDON, JR., ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE
FOR THE STATE OF VERMONT AS AMICUS CURIAE URGING AFFIRMANCE IN BOTH
CASES.  WITH HIM ON THE BRIEF WAS JAMES M. JEFFORDS, ATTORNEY GENERAL. 

ROBERT H. QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, PRO SE, WALTER
H. MAYO III, ASSISTANT ATTORNEY GENERAL, HERBERT F. DESIMONE, ATTORNEY
GENERAL OF RHODE ISLAND, PRO SE, CHARLES G. EDWARDS, ASSISTANT ATTORNEY
GENERAL, ROBERT K. KILLIAN, ATTORNEY GENERAL OF CONNECTICUT, PRO SE,
AND MICHAEL J. SCANLON, ASSISTANT ATTORNEY GENERAL, FILED A BRIEF FOR
THE ATTORNEYS GENERAL OF MASSACHUSETTS, RHODE ISLAND, AND CONNECTICUT
AS AMICI CURIAE URGING REVERSAL IN BOTH CASES. 

C. WAYNE SMYTH FILED A BRIEF FOR LORTON BLAIR ET AL. AS AMICI CURIAE
URGING AFFIRMANCE IN BOTH CASES. 
..END :









NACIREMA CO. V. JOHNSON, 396 U.S. 212 


       NACIREMA OPERATING CO., INC., ET AL. V. JOHNSON ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 9.  ARGUED MARCH 25, 1969-- REARGUED OCTOBER 20, 1969--

  DECIDED DECEMBER 9, 1969  /0/ 


ONE LONGSHOREMAN WAS KILLED AND TWO OTHERS WERE INJURED ON PIERS
PERMANENTLY AFFIXED TO SHORE IN ACCIDENTS THAT OCCURRED WHILE THEY WERE
ATTACHING CARGO FROM RAILROAD CARS TO SHIPS' CRANES.  THE DISTRICT
COURT UPHELD DENIAL OF COMPENSATION CLAIMS UNDER THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT OF 1927.  THE COURT OF APPEALS
REVERSED.  HELD: 

1.  THE LONGSHOREMEN'S ACT, WHICH COVERS INJURIES OCCURRING "UPON
NAVIGABLE WATERS," AND FURNISHES A REMEDY ONLY "IF RECOVERY . . .
THROUGH WORKMEN'S COMPENSATION PROCEEDINGS MAY NOT VALIDLY BE PROVIDED
BY STATE LAW," DOES NOT PROVIDE COMPENSATION TO WORKMEN INJURED ON A
PIER PERMANENTLY AFFIXED TO THE LAND AND HENCE CLEARLY WITHIN THE
JURISDICTION OF THE STATES.  PP. 214-221. 

2.  THOUGH THE EXTENSION OF ADMIRALTY JURISDICTION ACT EXTENDS
ADMIRALTY TORT JURISDICTION TO SHIP-CAUSED INJURIES ON A PIER, IT DOES
NOT ENLARGE THE COVERAGE OF THE LONGSHOREMEN'S ACT.  PP. 221-223. 

398 F.2D 900, REVERSED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE SINGLE QUESTION OF STATUTORY CONSTRUCTION PRESENTED BY THESE
CASES IS WHETHER INJURIES TO LONGSHOREMEN OCCURRING ON PIERS
PERMANENTLY AFFIXED TO SHORE ARE COMPENSABLE UNDER THE LONGSHOREMEN'S
AND HARBOR WORKERS' COMPENSATION ACT OF 1927 (LONGSHOREMEN'S ACT), 44
STAT. 1424, 33 U.S.C. 901-950. 

JOHNSON AND KLOSEK WERE EMPLOYED BY THE NACIREMA OPERATING COMPANY
AS LONGSHOREMEN; AVERY WAS SIMILARLY EMPLOYED BY THE OLD DOMINION
STEVEDORING CORPORATION.  ALL THREE MEN WERE ENGAGED AT THE TIME OF
THEIR ACCIDENTS IN PERFORMING SIMILAR OPERATIONS AS "SLINGERS,"
ATTACHING CARGO FROM RAILROAD CARS LOCATED ON PIERS /1/  TO SHIPS'
CRANES FOR REMOVAL TO THE SHIPS.  KLOSEK WAS KILLED, AND EACH OF THE
OTHER MEN WAS INJURED, WHEN CARGO HOISTED BY THE SHIP'S CRANE SWUNG
BACK AND KNOCKED HIM TO THE PIER OR CRUSHED HIM AGAINST THE SIDE OF THE
RAILROAD CAR.  DEPUTY COMMISSIONERS OF THE UNITED STATES DEPARTMENT OF
LABOR DENIED CLAIMS FOR COMPENSATION IN EACH CASE ON THE GROUND THAT
THE INJURIES HAD NOT OCCURRED "UPON THE NAVIGABLE WATERS OF THE UNITED
STATES" AS REQUIRED BY THE ACT.  /2/  THE DISTRICT COURTS UPHELD THE
DEPUTY COMMISSIONERS' DECISIONS.  243 F.SUPP.  184 (D.C. MD. 1965); 245
F.SUPP.  51 (D.C.E.D. VA. 1965).  THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT, SITTING EN BANC, REVERSED.  /3/  398 F.2D 900 (1968).  WE
GRANTED CERTIORARI, 393 U.S. 976 (1968), TO RESOLVE THE RESULTING
CONFLICT WITH DECISIONS IN OTHER CIRCUITS HOLDING THAT PIER INJURIES
ARE NOT COVERED BY THE ACT.  /4/  WE HAVE CONCLUDED FROM AN EXAMINATION
OF THE LANGUAGE, PURPOSE, AND LEGISLATIVE HISTORY OF THE ACT, AS WELL
AS PRIOR DECISIONS OF THIS COURT, THAT THE JUDGMENT OF THE COURT OF
APPEALS MUST BE REVERSED. 

SINCE LONG BEFORE THE LONGSHOREMEN'S ACT WAS PASSED, IT HAS BEEN
SETTLED LAW THAT STRUCTURES SUCH AS WHARVES AND PIERS, PERMANENTLY
AFFIXED TO LAND, ARE EXTENSIONS OF THE LAND.  /5/  THUS, LITERALLY
READ, A STATUTE THAT COVERS INJURIES "UPON THE NAVIGABLE WATERS" WOULD
NOT COVER INJURIES ON A PIER EVEN THOUGH THE PIER, LIKE A BRIDGE,
EXTENDS OVER NAVIGABLE WATERS.  /6/ 

RESPONDENTS URGE, HOWEVER, THAT THE 1927 ACT, THOUGH IT EMPLOYS
LANGUAGE THAT DETERMINES COVERAGE BY THE "SITUS" OF THE INJURY, WAS
NEVERTHELESS AIMED AT BROADER COVERAGE:  COVERAGE OF THE "STATUS" OF
THE LONGSHOREMAN EMPLOYED IN PERFORMING A MARITIME CONTRACT.  WE DO NOT
AGREE.  CONGRESS MIGHT HAVE EXTENDED COVERAGE TO ALL LONGSHOREMEN BY
EXERCISING ITS POWER OVER MARITIME CONTRACTS.  /7/  BUT THE LANGUAGE OF
THE ACT IS TO THE CONTRARY AND THE BACKGROUND OF THE STATUTE LEAVES
LITTLE DOUBT THAT CONGRESS' CONCERN IN PROVIDING COMPENSATION WAS A
NARROWER ONE. 

TEN YEARS BEFORE THE ACT WAS PASSED THIS COURT IN SOUTHERN PACIFIC
CO. V. JENSEN, 244 U.S. 205 (1917), HELD THAT A STATE WAS WITHOUT POWER
TO EXTEND A COMPENSATION REMEDY TO A LONGSHOREMAN INJURED ON THE
GANGPLANK BETWEEN THE SHIP AND THE PIER.  THE DECISION LEFT
LONGSHOREMEN INJURED ON THE SEAWARD SIDE OF THE PIER WITHOUT A
COMPENSATION REMEDY, WHILE LONGSHOREMEN INJURED ON THE PIER ENJOYED THE
PROTECTION OF STATE COMPENSATION ACTS.  STATE INDUSTRIAL COMMISSION V.
NORDENHOLT CORP., 259 U.S. 263 (1922). 

TWICE CONGRESS ATTEMPTED TO FILL THIS GAP BY PASSING LEGISLATION
THAT WOULD HAVE EXTENDED STATE COMPENSATION REMEDIES BEYOND THE LINE
DRAWN IN JENSEN.  /8/  EACH TIME, THIS COURT STRUCK DOWN THE STATUTE AS
AN UNLAWFUL DELEGATION OF CONGRESSIONAL POWER.  WASHINGTON V. DAWSON &
CO., 264 U.S. 219 (1924); KNICKERBOCKER ICE CO. V. STEWART, 253 U.S.
149 (1920).  FINALLY, RESPONDING TO THIS COURT'S SUGGESTION THAT WHAT
CONGRESS COULD NOT EMPOWER THE STATES TO DO, IT COULD DO ITSELF, /9/
CONGRESS PASSED THE LONGSHOREMEN'S ACT.  THE CLEAR IMPLICATION IS THAT
IN ENACTING ITS OWN COMPENSATION STATUTE, CONGRESS WAS TRYING TO DO
WHAT IT HAD FAILED TO DO IN EARLIER ATTEMPTS:  TO EXTEND A COMPENSATION
REMEDY TO WORKMEN INJURED BEYOND THE PIER AND HENCE BEYOND THE
JURISDICTION OF THE STATES.  THIS PURPOSE WAS CLEARLY EXPRESSED IN THE
LANGUAGE LIMITING COVERAGE TO INJURIES OCCURRING "UPON THE NAVIGABLE
WATERS," AND PERMITTING RECOVERY ONLY "IF RECOVERY . . . THROUGH
WORKMEN'S COMPENSATION PROCEEDINGS MAY NOT VALIDLY BE PROVIDED BY STATE
LAW."  /10/ 

THIS CONCLUSION IS FULLY SUPPORTED BY THE LEGISLATIVE HISTORY.  AS
ORIGINALLY DRAFTED, SEC. 3 EXTENDED COVERAGE TO INJURIES "ON A PLACE
WITHIN THE ADMIRALTY JURISDICTION OF THE UNITED STATES, EXCEPT
EMPLOYMENT OF LOCAL CONCERN AND OF NO DIRECT RELATION TO NAVIGATION AND
COMMERCE."  /11/  DURING THE HEARINGS, IT WAS REPEATEDLY EMPHASIZED AND
APPARENTLY ASSUMED BY REPRESENTATIVES FROM BOTH THE SHIPPING INDUSTRY
AND THE UNIONS THAT A "PLACE WITHIN THE ADMIRALTY JURISDICTION" DID NOT
INCLUDE A DOCK OR PIER.  /12/  IN FACT, A REPRESENTATIVE OF THE LABOR
DEPARTMENT OBJECTED TO THE BILL PRECISELY FOR THAT REASON, URGING THE
COMMITTEE TO EXTEND COVERAGE TO EMBRACE THE CONTRACT, "AND NOT THE MAN
SIMPLY WHEN HE IS ON THE SHIP."  /13/  IF CONGRESS HAD INTENDED TO
ADOPT THAT SUGGESTION, IT COULD NOT HAVE CHOSEN A MORE INAPPROPRIATE
WAY OF EXPRESSING ITS INTENT THAN BY SUBSTITUTING THE WORDS "UPON THE
NAVIGABLE WATERS" FOR THE WORDS "WITHIN THE ADMIRALTY JURISDICTION." 
/14/  INDEED, THE SENATE REPORT THAT ACCOMPANIED THE REVISED BILL,
CONTAINING THE LANGUAGE OF THE PRESENT ACT, MAKES CLEAR THAT THE
SUGGESTION WAS REJECTED, RATHER THAN ADOPTED:  "(INJURIES OCCURRING IN
LOADING OR UNLOADING ARE NOT COVERED UNLESS THEY OCCUR ON THE SHIP OR
BETWEEN THE WHARF AND THE SHIP SO AS TO BRING THEM WITHIN THE MARITIME
JURISDICTION OF THE UNITED STATES."  S. REP. NO. 973, 69TH CONG., 1ST
SESS., 16.  WE DECLINE TO IGNORE THESE EXPLICIT INDICATIONS OF A DESIGN
TO PROVIDE COMPENSATION ONLY BEYOND THE PIER WHERE THE STATES COULD NOT
REACH.  "THAT IS THE GAP THAT WE ARE TRYING TO FILL."  /15/  IN FILLING
THAT GAP CONGRESS DID NOT EXTEND COVERAGE TO LONGSHOREMEN LIKE THOSE
RESPONDENTS WHOSE INJURIES OCCURRED ON THE LANDWARD SIDE OF THE JENSEN
LINE, CLEARLY ENTITLING THEM TO PROTECTION UNDER STATE COMPENSATION
ACTS.  /16/ 

DECISIONS OF THIS COURT HAVE MORE THAN ONCE EMBRACED THIS
INTERPRETATION.  SWANSON V. MARRA BROS., INC., 328 U.S. 1 (1946), HELD
THAT NEITHER THE JONES ACT NOR THE LONGSHOREMEN'S ACT COVERED A
LONGSHOREMAN INJURED ON THE DOCK IN THE COURSE OF HIS EMPLOYMENT EVEN
IF THE INJURY WAS CAUSED BY A VESSEL ON NAVIGABLE WATERS.  PARKER V.
MOTOR BOAT SALES, 314 U.S. 244, 249 (1941), CONCLUDED THAT THE PURPOSE
OF THE ACT "WAS TO PROVIDE FOR FEDERAL COMPENSATION IN THE AREA WHICH
THE SPECIFIC DECISIONS REFERRED TO PLACED BEYOND THE REACH OF THE
STATES."  DAVIS V. DEPT. OF LABOR & INDUSTRIES, 317 U.S. 249, 256
(1942), NOTED THAT IN PASSING THE LONGSHOREMEN'S ACT, CONGRESS HAD
SPECIFICALLY ADOPTED THE JENSEN LINE.  THE INTERPRETATION ENDORSED BY
THESE CASES IS ALSO REFLECTED IN A CONSISTENT COURSE OF ADMINISTRATIVE
CONSTRUCTION COMMENCING IMMEDIATELY AFTER THE ENACTMENT OF THE ACT. 
EMPLOYEES' COMPENSATION COMMISSION OPINIONS NOS. 5 AND 16, 1927 A.M.C.
1558 AND 1855; NO. 30, 1928 A.M.C. 417. 

IT IS TRUE THAT SINCE JENSEN THIS COURT HAS PERMITTED RECOVERY UNDER
STATE REMEDIES IN PARTICULAR SITUATIONS SEAWARD OF THE PIER, PARKER V.
MOTOR BOAT SALES, SUPRA, AND IN CALBECK V. TRAVELERS INSURANCE CO., 370
U.S. 114 (1962), APPROVED RECOVERY UNDER THE LONGSHOREMEN'S ACT FOR
INJURIES OCCURRING ON NAVIGABLE WATERS WHICH MIGHT ALSO HAVE BEEN
COMPENSABLE UNDER STATE LAW.  CALBECK MADE IT CLEAR THAT CONGRESS
INTENDED TO EXERCISE ITS FULL JURISDICTION SEAWARD OF THE JENSEN LINE
AND TO COVER ALL INJURIES ON NAVIGABLE WATERS, WHETHER OR NOT STATE
COMPENSATION WAS ALSO AVAILABLE IN PARTICULAR SITUATIONS.  THE PROVISO
TO SEC. 3(A) CONDITIONING COVERAGE ON THE UNAVAILABILITY OF STATE
REMEDIES WAS NOT MEANT TO DENY FEDERAL RELIEF WHERE THE INJURY OCCURRED
ON NAVIGABLE WATERS.  BUT REMOVING UNCERTAINTIES AS TO THE ACT'S
COVERAGE OF INJURIES OCCURRING ON NAVIGABLE WATERS IS A FAR CRY FROM
CONSTRUING THE ACT TO REACH INJURIES ON LAND TRADITIONALLY WITHIN THE
AMBIT OF STATE COMPENSATION ACTS. 

INDEED, CALBECK FREELY CITED THE PARKER AND DAVIS DECLARATIONS THAT
THE LONGSHOREMEN'S ACT ADOPTED THE JENSEN LINE, AND CALBECK'S HOLDING
REJECTED THE NOTION THAT THE LINE SHOULD ADVANCE OR RECEDE SIMPLY
BECAUSE DECISIONS OF THIS COURT HAD PERMITTED STATE REMEDIES IN NARROW
AREAS SEAWARD OF THAT LINE.  OTHERWISE, THE REACH OF THE FEDERAL ACT
WOULD BE SUBJECT TO UNCERTAINTY, AND ITS COVERAGE WOULD "EXPAND AND
RECEDE IN HARNESS WITH DEVELOPMENTS IN CONSTITUTIONAL INTERPRETATION AS
TO THE SCOPE OF STATE POWER TO COMPENSATE INJURIES ON NAVIGABLE
WATERS," WITH THE RESULT "THAT EVERY LITIGATION RAISING AN ISSUE OF
FEDREAL COVERAGE WOULD RAISE AN ISSUE OF CONSTITUTIONAL DEMENSION, WITH
ALL THAT THAT IMPLIES . . . ."  370 U.S.,AT 126.  AS IN CALBECK, WE
REFUSE TO IMPUTE TO CONGRESS THE INTENT OF BURDENING THE ADMINISTRATION
OF COMPENSATION BY PERPETUATING SUCH CONFUSION. 

NOR CAN WE AGREE THAT WHAT CONGRESS DID NOT DO IN 1927, IT DID IN
1948 WHEN IT PASSED THE EXTENSION OF ADMIRALTY JURISDICTION ACT
(EXTENSION ACT), 62 STAT. 496, 46 U.S.C. 740.  IN PERTINENT PART, THAT
ACT PROVIDES: 

     "THE ADMIRALTY AND MARITIME JURISDICTION OF THE UNITED STATES

  SHALL EXTEND TO AND INCLUDE ALL CASES OF DAMAGE OR INJURY, TO

  PERSON OR PROPERTY, CAUSED BY A VESSLE ON NAVIGABLE WATER,

  NOTWITHSTANDING THAT SUCH DAMAGE OR INJURY BE DONE OR CONSUMMATED

  ON LAND." 

BY ITS VERY CHOICE OF LANGUAGE, THE ACT RE-ENFORCES THE CONCLUSION THAT
CONGRESS WAS WELL AWARE OF THE DISTINCTION BETWEEN LAND INJURIES AND
WATER INJURIES AND THAT WHEN IT LIMITED RECOVERY TO INJURIES ON
NAVIGABLE WATERS, IT DID NOT MEAN INJURIES ON LAND.  THE ACT NO DOUBT
EXTENDED THE ADMIRALTY TORT JURISDICTION TO SHIP-CAUSED INJURIES ON A
PIER.  BUT FAR FROM MODIFYING THE CLEAR UNDERSTANDING IN THE LAW THAT A
PIER WAS AN EXTENSION OF LAND AND THAT A PIER INJURY WAS NOT ON
NAVIGABLE WATERS BUT ON LAND, THE ACT ACCEPTS THAT RULE AND
NEVERTHELESS DECLARES SUCH INJURIES TO BE MARITIME TORTS IF CAUSED BY A
VESSEL ON NAVIGABLE WATERS. 

THE EXTENSION ACT WAS PASSED TO REMEDY THE COMPLETELY DIFFERENT
PROBLEM THAT AROSE FROM THE FACT THAT PARTIES AGGRIEVED BY INJURIES
DONE BY SHIPS TO BRIDGES, DOCKS, AND THE LIKE COULD NOT GET INTO
ADMIRALTY AT ALL.  /17/  THERE IS NO EVIDENCE THAT CONGRESS THEREBY
INTENDED TO AMEND OR AFFECT THE COVERAGE OF THE LONGSHOREMEN'S ACT OR
TO OVERRULE SWANSON V. MARRA BROS., SUPRA, DECIDED JUST TWO YEARS
EARLIER.  /18/  WHILE THE EXTENSION ACT MAY HAVE THE EFFECT OF
PERMITTING RESPONDENTS TO MAINTAIN AN OTHERWISE UNAVAILABLE LIBEL IN
ADMIRALTY, /19/  SEE GUTIERREZ V. WATERMAN S.S. CORP., 373 U.S. 206
(1963), THE ACT HAS NO BEARING WHATSOEVER ON THEIR RIGHT TO A
COMPENSATION REMEDY UNDER THE LONGSHOREMEN'S ACT. 

THERE IS MUCH TO BE SAID FOR UNIFORM TREATMENT OF LONGSHOREMEN
INJURED WHILE LOADING OR UNLOADING A SHIP.  BUT EVEN CONSTRUING THE
EXTENSION ACT TO AMEND THE LONGSHOREMEN'S ACT WOULD NOT EFFECT THIS
RESULT, SINCE LONGSHOREMEN INJURED ON A PIER BY PIER-BASED EQUIPMENT
WOULD STILL REMAIN OUTSIDE THE ACT.  AND CONSTRUING THE LONGSHOREMEN'S
ACT TO COINCIDE WITH THE LIMITS OF ADMIRALTY JURISDICTION-- WHATEVER
THEY MAY BE AND HOWEVER THEY MAY CHANGE-- SIMPLY REPLACES ONE LINE WITH
ANOTHER WHOSE UNCERTAIN CONTOURS CAN ONLY PERPETUATE ON THE LANDWARD
SIDEOF THE JENSEN LINE, THE SAME CONFUSION THAT PREVIOUSLY EXISTED ON
THE SEAWARD SIDE.  WHILE WE HAVE NO DOUBT THAT CONGRESS HAD THE POWER
TO CHOOSE EITHER OF THESE PATHS IN DEFINING THE COVERAGE OF ITS
COMPENSATION REMEDY, THE PLAIN FACT IS THAT IT CHOSE INSTEAD THE LINE
IN JENSEN SEPARATING WATER FROM LAND AT THE EDGE OF THE PIER.  THE
INVITATION TO MOVE THAT LINE LANDWARD MUST BE ADDRESSED TO CONGRESS,
NOT TO THIS COURT. 

              REVERSED. 

/0/  TOGETHER WITH NO. 16, TRAYNOR ET AL., DEPUTY COMMISSIONERS V.
JOHNSON ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  THE PIERS INVOLVED EXTENDED FROM SHORE INTO THE PATAPSCO RIVER
AT SPARROWS POINT, MARYLAND, AND INTO THE ELIZABETH RIVER AT NORFOLK,
VIRGINIA. 

/2/  SEC. 3(A) OF THE ACT, 33 U.S.C. 903(A), PROVIDES IN RELEVANT
PART: 

"(A) COMPENSATION SHALL BE PAYABLE UNDER THIS CHAPTER IN RESPECT OF
DISABILITY OR DEATH OF AN EMPLOYEE, BUT ONLY IF THE DISABILITY OR DEATH
RESULTS FROM AN INJURY OCCURRING UPON THE NAVIGABLE WATERS OF THE
UNITED STATES (INCLUDING ANY DRY DOCK) AND IF RECOVERY FOR THE
DISABILITY OR DEATH THROUGH WORKMEN'S COMPENSATION PROCEEDINGS MAY NOT
VALIDLY BE PROVIDED BY STATE LAW . . . ." 

/3/  THE THREE CASES WERE CONSOLIDATED ON APPEAL.  IN A FOURTH CASE,
AN AWARD TO A LONGSHOREMAN WHO HAD DROWNED AFTER BEING KNOCKED OFF A
PIER INTO THE WATER WAS AFFIRMED BY THE DISTRICT COURT AND THE COURT OF
APPEALS.  MARINE STEVEDORING CORP. V. OOSTING, 238 F.SUPP.  78
(D.C.E.D. VA. 1965). 

/4/  NICHOLSON V. CALBECK, 385 F.2D 221 (C.A. 5TH CIR. 1967), CERT.
DENIED, 389 U.S. 1051 (1968); HOUSER V. O'LEARY, 383 F.2D 730 (C.A. 9TH
CIR. 1967), CERT. DENIED, 390 U.S. 954 (1968); TRAVELERS INSURANCE CO.
V. SHEA, 382 F.2D 344 (C.A. 5TH CIR. 1967), CERT. DENIED SUB NOM.
MCCOLLOUGH V. TRAVELERS INSURANCE CO., 389 U.S. 1050 (1968); MICHIGAN
MUTUAL LIABILITY CO. V. ARRIEN, 344 F.2D 640 (C.A. 2D CIR.), CERT.
DENIED, 382 U.S. 835 (1965).     /5/  SWANSON V. MARRA BROS., INC., 328
U.S. 1 (1946); MINNIE V. PORT HURON TERMINAL CO., 295 U.S. 647 (1935);
T. SMITH & SON, INC. V. TAYLOR, 276 U.S. 179 (1928); STATE INDUSTRIAL
COMMISSION V. NORDENHOLT CORP., 259 U.S. 263 (1922); CLEVELAND TERMINAL
& VALLEY R. CO. V. CLEVELAND S.S. CO., 208 U.S. 316 (1908); THE
PLYMOUTH, 3 WALL.  20 (1866); 1 E. BENEDICT, THE LAW OF AMERICAN
ADMIRALTY SECS. 28, 29 (6TH ED. 1940); G. GILMORE & C. BLACK, THE LAW
OF ADMIRALTY SECS. 6-46, 7-17 (1957); G. ROBINSON, HANDBOOK OF
ADMIRALTY LAW IN THE UNITED STATES SEC. 11 (1939).     /6/  WE REJECT
THE ALTERNATIVE HOLDING OF THE COURT OF APPEALS THAT ALL INJURIES ON
THESE PIERS, DESPITE SETTLED DOCTRINE TO THE CONTRARY, MAY NOW BE
CONSIDERED INJURIES ON NAVIGABLE WATERS-- A PROPOSITION REJECTED
IMPLICITLY BY A UNANIMOUS COURT JUST LAST TERM.  SEE RODRIGUE V. AETNA
CASUALTY CO., 395 U.S. 352, 360, 366 (1969).  PIERS, LIKE BRIDGLS, ARE
NOT TRANSFORMED FROM LAND STRUCTURES INTO FLOATING STRUCTURES BY THE
MERE FACT THAT VESSELS MAY PASS BENEATH THEM. 

/7/  THE ADMIRALTY JURISDICTION IN TORT WAS TRADITIONALLY "BOUNDED
BY LOCALITY," DE LOVIO V. BOIT, 7 F.CAS.  418, 444 (NO. 3776) (C.C.D.
MASS. 1815) (STORY, J.)  (FOLLOWED IN INSURANCE CO. V. DUNHAM, 11
WALL.  1 (1871)), ENCOMPASSING ALL TORTS THAT TOOK PLACE ON NAVIGABLE
WATERS.  BY CONTRAST, ADMIRALTY CONTRACT JURISDICTION "EXTENDS OVER ALL
CONTRACTS, (WHERESOEVER THEY MAY BE MADE OR EXECUTED, OR WHATSOEVER MAY
BE THE FORM OF THE STIPULATIONS,) WHICH RELATE TO THE NAVIGATION,
BUSINESS OR COMMERCE OF THE SEA."  DE LOVIO V. BOIT, SUPRA, AT 444. 
SINCE A WORKMEN'S COMPENSATION ACT COMBINES ELEMENTS OF BOTH TORT AND
CONTRACT, CONGRESS NEED NOT HAVE TESTED COVERAGE BY LOCALITY ALONE.  AS
THE TEXT INDICATES, HOWEVER, THE HISTORY OF THE ACT SHOWS THAT CONGRESS
DID INDEED DO JUST THAT. 

/8/  ACT OF OCTOBER 6, 1917, 40 STAT. 395; ACT OF JUNE 10, 1922, 42
STAT. 634. 

/9/  WASHINGTON V. DAWSON & CO., 264 U.S. 219, 227 (1924).  THE
PASSAGE FROM DAWSON & CO. WAS REFERRED TO IN THE HEARINGS IN BOTH THE
SENATE AND THE HOUSE.  SEE HEARINGS ON S. 3170 BEFORE A SUBCOMMITTEE OF
THE SENATE COMMITTEE ON THE JUDICIARY, 69TH CONG., 1ST SESS., 18, 31,
103 AND N. 3 (1926) (HEREINAFTER "SENATE HEARINGS"); HEARINGS ON H.R.
9498 BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY, 69TH CONG., 1ST
SESS., SER.  16, PP. 18, 119 AND N. 3 (1926) (HEREINAFTER "HOUSE
HEARING"). 

/10/  DRYDOCKS WERE CONCEDED TO BE WITHIN THE ADMIRALTY JURISDICTION
IN BOTH THE HEARINGS AND THE DEBATES, EVEN THOUGH SUCH STRUCTURES ARE
NOT ALWAYS FLOATING STRUCTURES.  SEE HOUSE HEARING 34; 68 CONG.REC. 
5403 (1927).  IF CONGRESS HAD THOUGHT THE WORDS "UPON THE NAVIGABLE
WATERS" WERE BROAD ENOUGH TO EMBRACE THE LIMITS OF ADMIRALTY
JURISDICTION, THERE WOULD HAVE BEEN NO NEED TO ADD THE PARENTHETICAL
"(INCLUDING ANY DRY DOCK)." 

/11/  SEE SENATE HEARINGS 2. 

/12/  MR. DEMPSEY, REPRESENTING THE INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, TESTIFIED THAT THE BILL WOULD COVER INJURIES ON THE DOCK
AS WELL AS ON THE SHIP.  WHEN PRESSED AS TO HOW INJURIES ON THE DOCK
COULD COME WITHIN THE ADMIRALTY JURISDICTION, HE CONFESSED HE DID NOT
UNDERSTAND THE LEGAL THEORY, AND WOULD DEFER TO THE LONGSHOREMEN'S
ATTORNEY, MR. AUSTIN.  MR. AUSTIN PROCEEDED TO TESTIFY:  THAT THE DOCK
WAS NOT WITHIN THE ADMIRALTY JURISDICTION; THAT INJURIES ON THE DOCK
WERE COMPENSABLE UNDER STATE LAW; THAT THE PROBLEM AROSE BECAUSE THE
LONGSHOREMAN WAS LEFT "HIGH AND DRY" ONCE HE LEFT THE STATE'S
JURISDICTION AND STEPPED ON THE GANGPLANK; AND THAT "(THAT IS THE GAP
THAT WE ARE TRYING TO FILL . . . ."  SENATE HEARINGS 28, 30-31. 
TESTIMONY THAT LONGSHOREMEN INJURED ON THE DOCKS WOULD NOT BE COVERED
BY THE ACT ALSO CAME FROM REPRESENTATIVES OF THE SHIPBUILDERS.  SEE
SENATE HEARINGS 58, 95, 103.  SEE ALSO N. 15, INFRA; HEARING ON S. 3170
BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY, 69TH CONG., 1ST SESS.,
SER.  16, PT. 2, PP. 141, 157 (1926) (TESTIMONY ON THE REVISED BILL,
CONTAINING THE LANGUAGE OF THE PRESENT SEC. 3). 

/13/  SENATE HEARINGS 40. 

/14/  WHILE THE REASON FOR THE CHANGE IN THE LANGUAGE CONCERNING THE
BILL'S COVERAGE IS NOT EXPRESSLY INDICATED, IT APPEARS TO HAVE BEEN A
RESPONSE TO OBJECTIONS THAT THE ORIGINAL LANGUAGE, CARVING OUT AN
EXCEPTION FOR EMPLOYMENT OF "LOCAL CONCERN," WAS TOO VAGUE TO DEFINE
CLEARLY THE LINE BEING DRAWN, AND MIGHT EVEN ENCOUNTER PROBLEMS ONCE
AGAIN AT THE HANDS OF THIS COURT.  SEE SENATE HEARINGS 56-57, 95; HOUSE
HEARING 77, 100.  IN FACT, THE SAME SPOKESMAN FOR THE SHIPBUILDERS WHO
OBJECTED TO THE VAGUENESS OF THE "LOCAL CONCERN" EXCEPTION, ALSO
OBJECTED THAT THE BILL AS WRITTEN MIGHT "UPSET ALL THE PRESENT
ARRANGEMENTS WITH RESPECT TO COMPENSATING MEN ON THE DOCK."  SENATE
HEARINGS 57.  THE IMPLICATION IS THAT NO ONE EXPECTED THE FEDERAL LAW
TO EXTEND INTO THE AREA OF THE STATE'S JURISDICTION ON THE DOCK, BUT
THAT CONFUSION EXISTED AS TO WHETHER, CONVERSELY, STATE REMEDIES WOULD
BE EXCLUSIVE AS TO INJURIES "ON NAVIGABLE WATERS" BUT WITHIN THE
"MARITIME BUT LOCAL" EXCEPTION CREATED BY GRANT SMITH-PORTER SHIP CO.
V. ROHDE, 257 U.S. 469 (1922).  THIS READING OF THE LEGISLATIVE HISTORY
WAS ADOPTED IN CALBECK V. TRAVELERS INSURANCE CO., 370 U.S. 114, 121
127 (1962), WHERE THE COURT CONCLUDED THAT THE ACT DID NOT PREVENT
RECOVERY FOR INJURIES ON NAVIGABLE WATERS, EVEN THOUGH A STATE REMEDY
WOULD ALSO HAVE BEEN AVAILABLE UNDER ROHDE. 

/15/  SEE N. 12, SUPRA.  OTHER INDICATIONS THAT CONGRESS HAD NO
INTENTION OF REPLACING OR OVERLAPPING STATE COMPENSATION REMEDIES FOR
DOCKSIDE INJURIES CAN BE FOUND THROUGHOUT THE HEARINGS.  AT ONE POINT,
IN ATTEMPTING TO CALCULATE THE INCREASED COSTS INVOLVED IN THE FEDERAL
ACT, SENATOR CUMMINS, CHAIRMAN OF THE COMMITTEE, POINTED OUT THAT "WE
ARE PROCEEDING ON THE THEORY THAT THESE PEOPLE CAN NOT BE COMPENSATED
UNDER THE NEW YORK COMPENSATION LAW OR ANY OTHER COMPENSATION LAW." 
"(THE PURPOSE OF THIS LAW," HE AGREED WITH A WITNESS, WAS SIMPLY TO
COVER THE MEN WHO "ARE GOING TO BE EXPOSED A PART OF THE TIME ON BOARD
VESSELS . . . AND THEREFORE WILL HAVE TO BE COMPENSATED IN SOME OTHER
WAY WHERE THE NEW YORK LAW IS NOT THE REMEDY AVAILABLE."  SENATE
HEARINGS 84-85.  SIMILARLY, REPRESENTATIVE GRAHAM, CHAIRMAN OF THE
HOUSE COMITTEE, AGREED THAT "THE REAL NECESSITY FOR THIS LEGISLATION"
WAS TO PROVIDE WORKERS WITH COMPENSATION WHEN THEY STEPPED FROM DOCK TO
SHIP.  HOUSE HEARING 25.  IN FACT, THE LABOR REPRESENTATIVE WHO WAS
TESTIFYING AT THAT POINT IN THE HEARING INSISTED THAT THE LEGISLATION
SOUGHT WAS ONLY FOR "(THOSE WHO ARE INJURED ON BOARD VESSELS AT THE
DOCK."  THOSE INJURED ON THE DOCK "ARE TAKEN CARE OF UNDER THE STATE
LAW."  ID., AT 28.  THERE WAS ALSO TESTIMONY BY A LONGSHOREMEN'S
REPRESENTATIVE THAT "65 PER CENT OF THE ACCIDENTS IN THE COURTS OF NEW
YORK HAPPEN ON BOARD SHIPS OR ON GANGPLANKS; . . . THEREFORE . . . 65
PER CENT OF THE ACCIDENTS OF THE MEN WHO ARE INJURED BY PERFORMING THIS
WORK WILL BE COMPENSABLE UNDER THIS BILL."  ID., AT 35.  SEE ALSO ID.,
AT 44.  ANOTHER NOTED THAT "OUR MEN THAT ARE WORKING ON THE DOCK ARE
PROTECTED, AND WELL PROTECTED, UNDER THE NEW YORK COMPENSATION ACT, BUT
OUR MEN ON BOARD SHIP ARE NOT PROTECTED.  WE FEEL THAT CONGRESS WANTS
TO PROTECT THEM . . . ."  SENATE HEARINGS 42. 

/16/  BOTH JOHNSON AND KLOSEK'S WIDOW AND MINOR CHILDREN HAVE FILED
CLAIMS, AND ARE CONCEDEDLY ENTITLED TO BENEFITS, UNDER THE MARYLAND
WORKMEN'S COMPENSATION ACT.  AVERY HAS ALREADY BEEN AWARDED BENEFITS
UNDER THE VIRGINIA WORKMEN'S COMPENSATION LAW. 

/17/  SEE GILMORE & BLACK, SUPRA, N. 5, SEC. 7-17. 

/18/  THE LEGISLATIVE HISTORY OF THE EXTENSION ACT IS DEVOID OF ANY
REFERENCE TO THE LONGSHOREMEN'S ACT, AS MIGHT WELL BE EXPECTED IN AN
ACT DEALING WITH A WHOLLY UNRELATED PROBLEM.  SEE S. REP. NO. 1593,
80TH CONG., 2D SESS. (1948); H.R. REP. NO. 1523, 80TH CONG., 2D SESS.
(1948). 

THE HOUSE REPORT ACCOMPANYING THE EXTENSION ACT NOTES THAT "THE BILL
WILL NOT CREATE NEW CAUSES OF ACTION," ID., AT 3, AND THE STATUTE
SPEAKS OF EXTENDING JURISDICTION TO SUITS "IN REM OR IN PERSONAM" FOR
"DAMAGE" TO "PERSON OR PROPERTY"-- CONCEPTS WHOLLY AT ODDS WITH THE
THEORY OF WORKMEN'S COMPENSATION-- AWARDS MADE IN AN ADMINISTRATIVE
PROCEEDING.  THE CONCLUSION OF THE DISTRICT COURT IS INESCAPABLE.  "THE
TWO STATUTES DO NOT DEAL WITH THE SAME SUBJECT MATTER, ARE INHERENTLY
INCONSISTENT WITH EACH OTHER, AND CANNOT BE READ AS BEING IN PARTI
MATERIA."  243 F.SUPP.  184, 194 (1965). 

IT IS WORTH NOTING THAT A CONTEMPORANEOUS AMENDMENT OF THE
LONGSHOREMEN'S ACT CONTAINS NO CROSS REFERENCE TO THE EXTENSION ACT. 
SEE ACT OF JUNE 24, 1948, 62 STAT. 602 (A BILL TO INCREASE BENEFITS
UNDER THE LONGSHOREMEN'S ACT, PASSED FIVE DAYS AFTER THE EXTENSION
ACT).  AND, A HOUSE REPORT DATED JULY 28, 1958-- 10 YEARS AFTER
ENACTMENT OF THE EXTENSION ACT-- POINTS OUT THAT EMPLOYEES "ON THE
NAVIGABLE WATERS OF THE UNITED STATES" ARE COVERED UNDER THE
LONGSHOREMEN'S ACT, BUT ARE UNDER STATE PROTECTION "WHEN PERFORMING
WORK ON DOCKS AND IN OTHER SHORE AREAS."  H.R. REP. NO. 2287, 85TH
CONG., 2D SESS., 2 (ACCOMPANYING A BILL TO PROVIDE SAFETY PROGRAMS FOR
LONGSHOREMEN). 

/19/  WE WERE INFORMED IN ARGUMENT THAT TWO OF THE PARTIES HAVE IN
FACT ALREADY COMMENCED ACTION AGAINST THE SHIPOWNER. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
BRENNAN CONCR, DISSENTING. 

WE DISSENT FOR THE REASONS STATED BY JUDGE SOBELOFF SPEAKING FOR THE
COURT OF APPEALS SITTING EN BANC.  398 F.2D 900.  AS HE SAYS, THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT IS NOT RESTRICTED
TO CONVENTIONAL "ADMIRALTY TORT JURISDICTION" BUT IS "STATUS ORIENTED,
REACHING ALL INJURIES SUSTAINED BY LONGSHOREMEN IN THE COURSE OF THEIR
EMPLOYMENT."  ID., AT 904.  THE MATTER SHOULD BE AT REST AFTER CALBECK
V. TRAVELERS INSURANCE CO., 370 U.S. 114.  IN THAT SUIT UNDER THIS ACT
WE SAID THAT "'CONGRESS INTENDED THE COMPENSATION ACT TO HAVE A
COVERAGE CO-EXTENSIVE WITH THE LIMITS OF ITS AUTHORITY.'"  ID., AT 130,
QUOTING FROM DE BARDELEBEN COAL CORP. V. HENDERSON, 142 F.2D 481, 483. 
JUDGE SOBELOFF IN THE INSTANT CASES, WHILE ANSWERING THE ARGUMENT THAT
CALBECK WAS NOT CONCERNED WITH THE MEANING OF "UPON THE NAVIGABLE
WATERS," REFERRED TO JUDGE PALMIERI'S OPINION IN MICHIGAN MUTUAL
LIABILITY CO. V. ARRIEN, 233 F.SUPP.  496, 500, AFF'D, 344 F.2D 640: 

     "WHAT IS JUST AS IMPORTANT AS THE ACTUAL HOLDING IN CALBECK IS

  THE GENERAL APPROACH TO THE (LONGSHOREMEN'S COMPENSATION) ACT

  TAKEN BY THE COURT.  NO LONGER IS THE ACT VIEWED AS MERELY

  FILLING IN THE INTERSTICES AROUND THE SHORE LINE OF THE STATE

  ACTS, BUT RATHER AS AN AFFIRMATIVE EXERCISE OF ADMIRALTY

  JURISDICTION." 

JUDGE SOBELOFF WENT ON TO SAY: 

     "THIS AFFIRMATIVE EXERCISE OF THE ADMIRALTY POWER OF CONGRESS

  'TO THE FULLEST EXTENT' OF ITS JURISDICTION, CREATING 'A COVERAGE

  CO-EXTENSIVE WITH THE LIMITS OF ITS AUTHORITY,' CAN ONLY MEAN

  THAT CONGRESS EFFECTIVELY ENACTED A LAW TO PROTECT ALL WHO COULD

  CONSTITUTIONALLY BE BROUGHT WITHIN THE AMBIT OF ITS MARITIME

  AUTHORITY.  AGAIN, IN THE WORDS OF JUDGE PALMIERI, 'IT THUS

  APPEARS THAT "UPON NAVIGABLE WATERS" IS TO BE EQUATED WITH

  "ADMIRALTY JURISDICTION."'"  398 F.2D, AT 905. 

IN ADDITION TO THE CASES BEING REVIEWED HERE, THE COURT OF APPEALS
AFFIRMED A JUDGMENT IN FAVOR OF THE WIDOW OF A LONGSHOREMAN (238
F.SUPP.  78), WHO, WHILE WORKING ON THE PIER, WAS STRUCK BY A CABLE AND
KNOCKED INTO THE WATER WHERE HE DIED.  IT IS INCONGRUOUS TO US THAT IN
AN ACCIDENT ON A PIER OVER NAVIGABLE WATERS COVERAGE OF THE ACT DEPENDS
ON WHERE THE BODY FALLS AFTER THE ACCIDENT HAS HAPPENED.  FOR THIS AND
THE OTHER REASONS STATED BY JUDGE SOBELOFF, WE DISSENT FROM A REVERSAL
OF THESE JUDGMENTS. 

RANDALL C. COLEMAN ARGUED THE CAUSE FOR PETITIONERS IN NO. 9 ON THE
ORIGINAL ARGUMENT AND ON THE REARGUMENT.  WITH HIM ON THE BRIEFS WAS
WILLIAM B. ELEY.  SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR
PETITIONERS IN NO. 16 ON THE ORIGINAL ARGUMENT AND ON THE REARGUMENT. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL RUCKELSHAUS AND
LAWRENCE G. WALLACE. 

JOHN J. O'CONNOR, JR., ARGUED THE CAUSE AND FILED BRIEFS FOR
RESPONDENTS JOHNSON ET AL. ON THE ORIGINAL ARGUMENT AND ON THE
REARGUMENT IN BOTH CASES.  RALPH RABINOWITZ ARGUED THE CAUSE AND FILED
A BRIEF FOR RESPONDENT AVERY ON THE ORIGINAL ARGUMENT AND ON THE
REARGUMENT IN BOTH CASES. 

E. D. VICKERY, FRANCIS A. SCANLAN, SCOTT H. ELDER, AND J. STEWART
HARRISON FILED A BRIEF FOR THE NATIONAL MARITIME COMPENSATION COMMITTEE
AS AMICUS CURIAE URGING REVERSAL IN BOTH CASES. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE IN BOTH CASES WERE FILED BY
LOUIS WALDMAN AND SEYMOUR M. WALDMAN FOR THE INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION, AFL-CIO, AND BY PAUL S. EDELMAN FOR THE
AMERICAN TRIAL LAWYERS ASSOCIATION. 
..END :












ANDERSON'S-BLACK ROCK V. PAVEMENT CO., 396 U.S. 57 


       ANDERSON'S-BLACK ROCK, INC. V. PAVEMENT SALVAGE CO., INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT

        NO. 45.  ARGUED NOVEMBER 10, 1969-- DECIDED DECEMBER 8,

 1969 


RESPONDENT BROUGHT THIS ACTION FOR INFRINGEMENT OF A PATENT FOR
"MEANS FOR TREATING BITUMINOUS PAVEMENT."  THE PATENT SOUGHT TO SOLVE
THE PROBLEM OF A COLD JOINT ON "BLACKTOP" PAVING BY COMBINING KNOWN
ELEMENTS, A RADIANT-HEAT BURNER, A SPREADER, AND A TAMPER AND SCREED,
ON ONE CHASSIS.  THE DISTRICT COURT, FINDING THAT ALL THE INVENTOR HAD
DONE WAS TO CONSTRUCT KNOWN ELEMENTS IN THE PRIOR ART ON A SINGLE
CHASSIS, HELD THE PATENT INVALID.  THE COURT OF APPEALS REVERSED. 
HELD:  WHILE THE COMBINATION OF OLD ELEMENTS PERFORMED A USEFUL AND
COMMERCIALLY SUCCESSFUL FUNCTION IT ADDED NOTHING TO THE NATURE AND
QUALITY OF THE PREVISOULY PATENTED RADIANT BURNER, AND TO THOSE SKILLED
IN THE ART THE USE OF THE OLD ELEMENTS IN COMBINATION WAS NOT AN
INVENTION UNDER THE STANDARD OF 35 U.S.C. 103.  PP. 59-63. 

404 F.2D 450, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BROUGHT THIS ACTION AGAINST PETITIONER FOR INFRINGEMENT OF
UNITED STATES PATENT NO. 3,055,280 COVERING "MEANS FOR TREATING
BITUMINOUS PAVEMENT."  THE PATENT WAS ASSIGENED TO RESPONDENT BY ONE
NEVILLE. 

BITUMINOUS CONCRETE-- COMMONLY CALLED ASPHALT OR "BLACKTOP"-- IS
OFTEN LAID IN STRIPS.  THE FIRST STRIP IS TO BE LAID, CREATING WHAT IS
KNOWN AS A COLD JOINT.  BECAUSE BITUMINOUS CONCRETE IS PLIABLE AND
CAPABLE OF BEING SHAPED ONLY AT TEMPERATURES OF 250 DEGREES TO 290
DEGREES F., THE COLD JOINT RESULTS IN A POOR BONDING BETWEEN THE
STRIPS.  WATER AND DIRT ENTER BETWEEN THE STRIPS, CAUSING DETERIORATION
OF THE PAVEMENT. 

RESPONDENT'S PATENT SOUGHT TO SOLVE THE PROBLEM OF THE COLD JOINT BY
COMBINING ON ONE CHASSIS (1) A RADIANT-HEAT BURNER FOR HEATING THE
EXPOSED EDGE OF THE COLD STRIP OF PAVEMENT; (2) A SPREADER FOR PLACING
BITUMINOUS MATERIAL AGAINST THAT STRIP; AND (3) A TAMPER AND SCREED,
FOR SHAPING THE NEWLY PLACED MATERIAL TO THE DESIRED CONTOUR AND
SURFACE. 

THE STANDARD PAVING MACHINE IN USE PRIOR TO RESPONDENT'S CLAIMED
INVENTION COMBINED ON ONE CHASSIS THE EQUIPMENT FOR SPREADING AND
SHAPING THE ASPHALT, AND IT IS UNQUESTIONED THAT THIS COMBINATION ALONE
DOES NOT RESULT IN A PATENTABLE INVENTION.  PETITIONER'S ALLEGED
INFRINGEMENT RESULTED FROM ITS PLACING OF A RADIANT-HEAT BURNER ON THE
FRONT OF A STANDARD PAVING MACHINE, THUS ALLOWING ITS MACHINE TO
PERFORM THE SAME FUNCTIONS WITH THE SAME BASIC ELEMENTS AS THOSE
DESCRIBED IN RESPONDENT'S PATENT. 

THE USE OF A RADIANT-HEAT BURNER IN WORKING ASPHALT PAVEMENT DATES
BACK TO A PATENT ISSUED IN 1905 TO ONE MORCOM, UNITED STATES PATENT NO.
799,014.  THE VALUE OF SUCH A HEATER LIES IN THE FACT THAT IT SOFTENS
THE ASPHALT WITHOUT BURNING THE SURFACE.  THE RADIANT-HEAT BURNER ON
RESPONDENT'S CLAIMED INVENTION IS ESSENTIALLY THE SAME AS THAT
DISCLOSED IN A PATENT ISSUED IN 1956 TO ONE SCHWANK, UNITED STATES
PATENT NO. 2,775,294.  THUS THE BURNER, BY ITSELF, IS ALSO NOT
PATENTABLE. 

THE PLACEMENT OF THE RADIANT-HEAT BURNER UPON THE SIDE OF A STANDARD
BITUMINOUS PAVER IS THE CENTRAL FEATURE OF RESPONDENT'S PATENT.  THE
HEATER IS USED IN THIS WAY FOR CONTINUOUS PAVING ALONG A STRIP TO
PREVENT A COLD JOINT, WHEREAS PREVIOUSLY RADIANT-HEAT BURNERS HAD BEEN
USED MERELY FOR PATCHING LIMITED AREAS OF ASPHALT.  THE OPERATION OF
THE HEATER IS, HOWEVER, IN NO WAY DEPENDENT ON THE OPERATION OF THE
OTHER EQUIPMENT ON THE PAVING MACHINE.  IT IS HUNG ON THE PAVER MERELY
BECAUSE THAT IS A CONVENIENT PLACE FOR IT WHEN HEATING THE LONGITUDINAL
JOINT OF THE PAVEMENT.  A SEPARATE HEATER CAN ALSO BE USED IN
CONJUNCTION WITH A STANDARD PAVING MACHINE TO ELIMINATE THE COLD JOINT,
AND IN FACT IS SO USED FOR HEATING THE TRANSVERSE JOINTS OF THE
PAVEMENT. 

RESPONDENT CLAIMS THAT ITS PATENT INVOLVES A COMBINATION OF PRIOR
ART WHICH PRODUCES THE NEW AND USEFUL RESULT OF ELIMINATING THE COLD
JOINT.  ITS CLAIM OF UNOBVIOUSNESS IS BASED LARGELY ON THE TESTIMONY OF
TWO INDIVIDUALS WHO ARE KNOWLEDGEABLE IN THE FIELD OF ASPHALT PAVING,
EXPRESSING THEIR DOUBTS TO THE INVENTOR NEVILLE THAT RADIANT HEAT WOULD
SOLVE THE PROBLEM OF COLD JOINTS.  THE DISTRICT COURT REJECTED
RESPONDENT'S CLAIM OF INFRINGEMENT, FINDING THE PATENT INVALID.  THE
COURT OF APPEALS, BY A DIVIDED VOTE, REVERSED.  FOR REASONS THAT
FOLLOW, WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

EACH OF THE ELEMENTS COMBINED IN THE PATENT WAS KNOWN IN THE PRIOR
ART. IT IS URGED THAT THE DISTINCTIVE FEATURE OF THE PATENT WAS THE
ELEMENT OF A RADIANT-HEAT BURNER.  BUT IT SEEMS TO BE CONCEDED THAT THE
BURNER, BY ITSELF, WAS NOT PATENTABLE.  AND SO WE REACH THE QUESTION
WHETHER THE COMBINATION OF THE OLD ELEMENTS CREATED A VALID COMBINATION
PATENT. 

THE DISTRICT COURT SAID:  "ALL THAT PLAINTIFF (RESPONDENT) HAS DONE
IS TO CONSTRUCT FOUR ELEMTNS KNOWN IN THE PRIOR ART ON ONE CHASSIS." 
THAT IS RELEVANT TO COMMERCIAL SUCCESS, NOT WO INVENTION.  THE EXPERTS
TENDERED BY RESPONDENT TESTIFIED THAT THEY HAD BEEN DOUBTFUL THAT
RADIANT HEAT WOULD SOLVE THE PROBLEM OF THE COLD JOINT.  /1/  BUT
RADIANT HEAT WAS OLD IN THE ART. THE QUESTION OF INVENTION MUST TURN ON
WHETHER THE COMBINATION SUPPLIED THE KEY REQUIREMENT.  WE CONCLUDE THAT
THE COMBINATION WAS REASONABLY OBVIOUS TO ONE WITH ORDINARY SKILL IN
THE ART. 

THERE IS UNCONTESTED EVIDENCE THAT THE PRESENCE OF THE RADIANT-HEAT
BURNER IN THE SAME MACHINE WITH THE OTHER ELEMENTS IS NOT CRITICAL OR
ESSENTIAL TO THE FUNCTIONING OF THE RADIANT-HEAT BURNER IN CURING THE
PROBLEM OF THE COLD JOINT.  FOR IT APPEARS THAT A RADIANT-HEAT BURNER
OPERATING IN A TANDEM FASHION WOULD WORK AS WELL.  THE COMBINATION OF
PUTTING THE BURNER TOGETHER WITH THE OTHER ELEMENTS IN ONE MACHINE,
THOUGH PERHAPS A MATTER OF GREAT CONVENIENCE, DID NOT PRODUCE A "NEW OR
DIFFERENT FUNCTION," LINCOLN CO. V. STEWART-WARNER CORP., 303 U.S. 545,
549, WITHIN THE TEST OF VALIDITY OF COMBINATION PATENTS. 

A COMBINATION OF ELEMENTS MAY RESULT IN AN EFFECT GREATER THAN THE
SUM OF THE SEVERAL EFFECTS TAKEN SEPARATELY.  NO SUCH SYNERGISTIC
RESULT IS ARGUED HERE.  IT IS, HOWEVER, FERVENTLY ARGUED THAT THE
COMBINATION FILLED A LONG FELT WANT AND HAS ENJOYED COMMERCIAL
SUCCESS.  BUT THOSE MATTERS "WITHOUT INVENTION WILL NOT MAKE
PATENTABILITY."  A. & P. TEA CO. V. SUPERMARKERT CORP., 340 U.S. 147,
153. 

THE PATENT STANDARD IS BASICALLY CONSTITUTIONAL, ARTICLE I, SEC. 8,
OF THE CONSTITUTION AUTHORIZING CONGRESS "(TO PROMOTE THE PROGRESS OF .
. . USEFUL ARTS" BY ALLOWING INVENTORS MONOPOLIES FOR LIMITED TIMES. 
WE STATED IN GRAHAM V. JOHN DEERE CO., 383 U.S. 1, 6, THAT UNDER THAT
POWER CONGRESS MAY NOT "ENLARGE THE PATENT MONOPOLY WITHOUT REGARD TO
THE INNOVATION, ADVANCEMENT OR SOCIAL BENEFIT GAINED THEREBY. 
MOREOVER, CONGRESS MAY NOT AUTHORIZE THE ISSUANCE OF PATENTS WHOSE
EFFECTS ARE TO REMOVE EXISTENT KNOWLEDGE FROM THE PUBLIC DOMAIN, OR TO
RESTRICT FREE ACCESS TO MATERIALS ALREADY AVAILABLE.  INNOVATION,
ADVANCEMENT, AND THINGS WHICH ADD TO THE SUM OF USEFUL KNOWLEDGE ARE
INHERENT REQUISITES IN A PATENT SYSTEM WHICH BY CONSTITUTIONAL COMMAND
MUST 'PROMOTE THE PROGRESS OF . . . USEFUL ARTS.'  THIS IS THE STANDARD
EXPRESSED IN THE CONSTITUTION AND IT MAY NOT BE IGNORED." 

IN THIS CASE THE QUESTION OF PATENTABILITY OF THE COMBINATION TURNS
ON THE MEANING OF 35 U.S.C. 103 /2/  WHICH THE COURT REVIEWED IN THE
GRAHAM CASE, SUPRA, AT 13-17.  WE SAID: 

     "WE BELIEVE THAT THIS LEGISLATIVE HISTORY, AS WELL AS OTHER

  SOURCES, SHOWS THAT THE REVISION WAS NOT INTENDED BY CONGRESS TO

  CHANGE THE GENERAL LEVEL OF PATENTABLE INVENTION.  WE CONCLUDE

THAT THE SECTION WAS INTENDED MERELY AS A CODIFICATION OF

 JUDICIAL PRECEDENTS EMBRACING THE HOTCHKISS /1/  CONDITION, WITH

  CONGRESSIONAL DIRECTIONS THAT INQUIRIES INTO THE OBVIOUSNESS OF

  THE SUBJECT MATTER SOUGHT TO BE PATENTED ARE A PREREQUISITE TO

  PATENTABILITY."  ID., AT 17. 

OBVIOUSNESS, AS AN ISSUE, IS RESOLVED AS FOLLOWS: 

     "UNDER SEC. 103, THE SCOPE AND CONTENT OF THE PRIOR ART ARE TO

 BE DETERMINED; DIFFERENCES BETWEEN THE PRIOR ART AND THE CLAIMS

  AT ISSUE ARE TO BE ASCERTAINED; AND THE LEVEL OF ORDINARY SKILL

  IN THE PERTINENT ART RESOLVED."  IBID. 

WE ADMONISHED THAT "STRICT OBSERVANCE" OF THOSE REQUIREMENTS IS
NECESSARY.  ID., AT 18. 

WE CONCLUDE THAT WHILE THE COMBINATION OF OLD ELEMENTS PERFORMED A
USEFUL FUNCTION, /4/  IT ADDED NOTHING TO THE NATURE AND QUALITY OF THE
RADIANT-HEAT BURNER ALREADY PATENTED.  WE CONCLUDE FURTHER THAT TO
THOSE SKILLED IN THE ART THE USE OF THE OLD ELEMENTS IN COMBINATION WAS
NOT AN INVENTION BY THE OBVIOUS-NONOBVIOUS STANDARD.  USE OF THE
RADIANT-HEAT BURNER IN THIS IMPORTANT FIELD MARKED A SUCCESSFUL
VENTURE.  BUT AS NOTED, MORE THAN THAT IS NEEDED FOR INVENTION. 

              REVERSED. 

/1/  MR. FRANCIS C. WITKOSKI, AN ENGINEER, MET THE INVENTOR, CHARLES
NEVILLE, BETWEEN 1955 AND 1960 WHILE WITOSKI WAS DIRECTOR OF RESEARCH
FOR THE PENNSYLVANIA DEPARTMENT OF HIGHWAYS.  NEVILLE TOLD WITKOSKI
THAT HE HAD INVENTED A PIECE OF EQUIPMENT THAT WOULD HEAT BUT NOT BURN
ASPHALT, AND WOULD THUS ELIMINATE COLD JOINTS.  WITKOSKI REPLIED THAT
HE DID NOT BELIEVE THAT NEVILLE HAD SUCH A PIECE OF EQUIPMENT. 
SUBSEQUENTLY, WITKOSKI ORDERED FROM NEVILLE SOME OF THE SEPARATE BURNER
UNITS AND TESTED THEM.  THUS THE DIALOGUE BETWEEN WITKOSKI AND NEVILLE
FOCUSED EXCLUSIVELY ON THE PROPERTIES OF THE RADIANT-HEAT BURNER. 

MR. LESLIE B. CROWLEY, ALSO AN ENGINEER, MET NEVILLE PRIOR TO 1954. 
CROWLEY WAS AT THAT TIME THE CHIEF OF THE PAVEMENTS AND RAILROADS
FORCE.  NEVILLE EXPLAINED THE ADVANTAGES OF USING AN "INFRA-RED" HEATER
FOR THE MAINTENANCE AND REPAIR OF ASPHALT PAVEMENTS.  CROWLEY TESTIFIED
THAT HIS INTEREST WAS INSUFFICIENT AT THAT TIME TO MOTIVATE HIM TO TAKE
ANY ACTION WITH REGARD TO THE DEVICE BECAUSE HE DID NOT BELIEVE IT
WOULD "DO THE JOB."  THUS THE CROWLEY-NEVILLE DISCUSSION ALSO FOCUSED
ENTIRELY ON THE RADIANT-HEAT BURNER, AND NOT ON THE COMBINATION OF THE
BURNER WITH THE OTHER ELEMENTS OF A BITUMINOUS PAVER. 

/2/  35 U.S.C. 103 PROVIDES: 

"A PATENT MAY NOT BE OBTAINED THOUGH THE INVENTION IS NOT
IDENTICALLY DISCLOSED OR DESCRIBED AS SET FORTH IN SECTION 102 OF THIS
TITLE, IF THE DIFFERENCES BETWEEN THE SUBJECT MATTER SOUGHT TO BE
PATENTED AND THE PRIOR ART ARE SUCH THAT THE SUBJECT MATTER AS A WHOLE
HAVE BEEN OBVIOUS AT THE TIME THE INVENTION WAS MADE TO A PERSON HAVING
ORDINARY SKILL IN THE ART TO WHICH SAID SUBJECT MATTER PERTAINS. 
PATENTABILITY SHALL NOT BE NEGATIVED BY THE MANNER IN WHICH THE
INVENTION WAS MADE." 

/3/  HOTCHKISS V. GREENWOOD, 11 HOW.  248. 

/4/  35 U.S.C. 101 PROVIDES: 

"WHOEVER INVENTS OR DISCOVERS ANY NEW AND USEFUL PROCESS, MACHINE,
MANUFACTURE, OR COMPOSITION OF MATTER, OR ANY NEW AND USEFUL
IMPROVEMENT THEREOF, MAY OBTAIN A PATENT THEREFOR, SUBJECT TO THE
CONDITIONS AND REQUIREMENTS OF THIS TITLE." 

ABSENT HERE IS THE ELEMENT "NEW."  FOR AS WE HAVE SAID, THE
COMBINATION PATENT ADDED NOTHING TO THE INHERENT CHARACTERISTICS OR
FUNCTION OF THE RADIANT-HEAT BURNER.  4 ##DOP 

THE CHIEF JUSTICE TOOK NO PART IN THE DECISION OF THIS CASE. 

ALAN W. BORST ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS NATHANIEL L. LEEK. 

WALTER J. BLENKO, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :















BRYSON V. UNITED STATES, 396 U.S. 64 


       BRYSON V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 35.  ARGUED OCTOBER 14, 1969-- DECIDED DECEMBER 8,
1969 


PETITIONER CHALLENGES HIS 1955 CONVICTION UNDER 18 U.S.C. 1001 FOR
FALSELY AND FRAUDULENTLY DENYING AFFILIATION WITH THE COMMUNIST PARTY
IN AN AFFIDAVIT HE FILED WITH THE NATIONAL LABOR RELATIONS BOARD
(NLRB), PURSUANT TO SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT. 
THE JURISDICTION OF THE NLRB UNLESS EACH UNION OFFICER FILED WITH THE
NLRB AN AFFIDAVIT STATING "THAT HE IS NOT A MEMBER OF THE COMMUNIST
PARTY OR AFFILIATED WITH SUCH PARTY . . . ."  THE DISTRICT COURT SET
ASIDE THE CONVICTION.  IT DISTINGUISHED DENNIS V. UNITED STATES, 384
U.S. 844; DECIDED THAT SEC. 9(H), WHICH HAD BEEN UPHELD IN AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, COULD NO LONGER BE THOUGHT
CONSTITUTIONALLY VALID, PARTICULARLY IN LIGHT OF UNITED STATES V.
BROWN, 381 U.S. 437; AND CONCLUDED THAT THE GOVERNMENT HAD NO RIGHT TO
ASK THE QUESTIONS WHICH PETITIONER ANSWERED FALSELY IN HIS AFFIDAVIT. 
THE COURT OF APPEALS REVERSED SINCE IT FOUND "NO SIGNIFICANT
DIFFERENCES" BETWEEN THIS CASE AND DENNIS, SUPRA, AND THEREFORE THOUGHT
IT UNNECESSARY TO CONSIDER THE CONSTITUTIONALITY OF SEC. 9(H).  HELD: 

1.  THE CONSTITUTIONALITY OF SEC. 9(H) IS LEGALLY IRRELEVANT TO THE
VALIDITY OF PETITIONER'S CONVICTION UNDER 18 U.S.C. 1001, WHICH
PUNISHES THE MAKING OF FRAUDULENT STATEMENTS TO THE GOVERNMENT, DENNIS,
SUPRA, BECAUSE NONE OF THE ELEMENTS OF PROOF FOR PETITIONER'S
CONVICTION UNDER SEC. 1001 HAS BEEN SHOWN TO DEPEND ON THE VALIDITY OF
SEC. 9(H).  PP. 68-72. 

(A) THE STATUTORY TERM "AFFILIATED," WHICH PETITIONER CLAIMS IS
VAGUE AND OVERBROAD AND WHIC HE SUGGESTS HE MISUNDERSTOOD, WAS NARROWLY
DEFINED BY THE TRIAL COURT IN AN INSTRUCTION LATER EXPLICITLY APPROVED
BY THIS COURT, AND THE JURY'S VERDICT REFLECTS A DETERMINATION THAT
PETITIONER'S FALSE STATEMENT WAS KNOWINGLY AND DELIBERATELY MADE.  PP.
69-70. 

(B) PETITIONER'S FALSE STATEMENT WAS MADE IN A "MATTER WITHIN THE
JURISDICTION" OF THE NLRB, AS THE NLRB RECEIVED THE AFFIDAVIT PURSUANT
TO EXPLICIT STATUTORY AUTHORITY, WHICH ONLY A SHORT TIME BEFORE HAD
BEEN UPHELD AS CONSTITUTIONAL IN DOUDS, SUPRA.  PP. 70-71. 

2.  DENNIS, SUPRA, NEGATES ANY GENERAL PRINCIPLE THAT A CITIZEN HAS
A PRIVILEGE TO ANSWER FRAUDULENTLY A QUESTION THAT THE GOVERNMENT
SHOULD NOT HAVE ASKED.  P. 72. 

3.  THIS CASE IS NOT DISTINGUISHABLE FROM DENNIS, SUPRA, WHICH IS
FOLLOWED HERE.  PP. 72-73. 

403 F.2D 340, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER ASKS THIS COURT TO SET ASIDE HIS 1955 JURY CONVICTION UNDER
18 U.S.C. 1001 /1/  FOR HAVING FALSELY AND FRAUDULENTLY DENIED
AFFILIATION WITH THE COMMUNIST PARTY IN AN AFFIDAVIT HE HAD FILED WITH
THE NATIONAL LABOR RELATIONS BOARD, PURSUANT TO SEC. 9(H) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE TAFT-HARTLEY ACT.  /2/
THIS COLLATERAL PROCEEDING WAS BROUGHT IN THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA IN 1967, SOME 10 YEARS AFTER HIS
ORIGINAL CONVICTION WAS UPHELD OVER A VARIETY OF CHALLENGES ON DIRECT
REVIEW.  /3/  THE DISTRICT COURT DISTINGUISHED DENNIS V. UNITED STATES,
384 U.S. 855 (1966), AND DECIDED THAT SEC. 9(H), WHICH HAD BEEN UPHELD
IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382 (1950), COULD
NO LONGER BE THOUGHT CONSTITUTIONALLY VALID, PARTICULARLY IN LIGHT OF
UNITED STATES V. BROWN, 381 U.S. 437 (1965).  HAVING CONCLUDED THAT THE
GOVERNMENT HAD NO RIGHT TO ASK THE QUESTIONS WHICH PETITIONER ANSWERED
FALSELY IN HIS AFFIDAVIT, THE DISTRICT COURT RULED THAT PETITIONER'S
CONVICTION UNDER SEC. 1001 SHOULD BE "WITHOUT EFFECT."  IT THEREFORE
SET ASIDE PETITIONER'S CONVICTION AND DISCHARGED HIS PAROLE (UNREPORTED
OPINION).  /4/ 

ON THE GOVERNMENT'S APPEAL, THE NINTH CIRCUIT REVERSED BECAUSE IT
FOUND "NO SIGNIFICANT DIFFERENCES" BETWEEN THIS CASE AND DENNIS, AND IT
THEREFORE THOUGHT IT UNNECESSARY TO CONSIDER THE CONSTITUTIONALITY OF
SEC. 9(H).  403 F.2D 340 (1968).  WE GRANTED CERTIORARI, 393 U.S. 1079
(1969), AND WE NOW AFFIRM. 

       I 

PETITIONER BOTTOMS HIS CLAIM TO RELIEF ON ASSERTED CONSTITUTIONAL
DEFICIENCIES OF SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT, ENACTED
BY CONGRESS IN 1947 OUT OF CONCERN THAT COMMUNIST PARTY INFLUENCE ON
UNION OFFICERS CREATED THE RISK OF "POLITICAL STRIKES," SEE AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.,AT 387-389.  UNDER SEC. 9(H), A
UNION COULD PARTICIPATE IN REPRESENTATION PROCEEDINGS CONDUCTED BY THE
NLRB OR UTILIZE THE BOARD'S MACHINERY TO PROTEST EMPLOYER UNFAIR LABOR
PRACTICES ONLY IF EACH OF THE UNION'S OFFICERS HAD FILED A "NON
COMMUNIST" AFFIDAVIT.  SEE N. 2, SUPRA.  PETITIONER FILED SUCH AN
AFFIDAVIT IN 1951, AND HIS SUBSEQUENT CONVICTION UNDER SEC. 1001 WAS
BASED ON A JURY'S DETERMINATION THAT PETITIONER HAD KNOWINGLY AND
WILLFULLY LIED IN HIS AFFIDAVIT BY DENYING AFFILIATION WITH THE
COMMUNIST PARTY.  /5/ 

ABOUT ONE YEAR BEFORE PETITIONER FILED THE FALSE AFFIDAVIT, THIS
COURT HAD UPHELD SEC. 9(H) AFTER CONSIDERING A VARIETY OF ASSERTED
CONSTITUTIONAL DEFICIENCIES, AMERICAN COMMUNICATIONS ASSN. V. DOUDS,
SUPRA. HOWEVER, IN 1959 CONGRESS REPLACED SEC. 9(H) WITH A PROVISION
THAT SIMPLY MADE IT A CRIME FOR ONE WHO WAS OR HAD RECENTLY BEEN A
COMMUNIST PARTY MEMBER TO BE A UNION OFFICER, /6/  AND THIS SUCCESSOR
STATUTE WAS SUBSEQUENTLY HELD UNCONSTITUTIONAL AS A BILL OF ATTAINDER,
UNITED STATES V. BROWN, SUPRA. 

RELYING PRIMARILY ON BROWN, PETITIONER ARGUES THAT SEC. 9(H) WAS
ALSO A BILL OF ATTAINDER, PROHIBITED BY ART. I, SEC. 9, CL. 3, OF THE
CONSTITUTION.  PETITIONER ALSO ARGUES THAT THE STATUTE ABRIDGED FIRST
AMENDMENT RIGHTS OF SPEECH, ASSEMBLY, AND ASSOCIATION, AND WAS SO VAGUE
AS TO OFFEND THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  WE DO NOT
DECIDE WHETHER SEC. 9(H)-- NOW REPEALED FOR OVER 10 YEARS-- WOULD TODAY
PASS CONSTITUTIONAL MUSTER AND WHETHER DOUDS WOULD BE REAFFIRMED. 
GUIDED BY DENNIS V. UNITED STATES, SUPRA, WE HOLD THAT THE QUESTION OF
WHETHER SEC. 9(H) WAS CONSTITUTIONAL OR NOT IS LEGALLY IRRELEVANT TO
THE VALIDITY OF PETITIONER'S CONVICTION UNDER SEC. 1001, THE GENERAL
CRIMINAL PROVISION PUNISHING THE MAKING OF FRAUDULENT STATEMENTS TO THE
GOVERNMENT. 

        II 

IN DENNIS V. UNITED STATES, 384 U.S. 855 (1966), THE PETITIONERS HAD
BEEN CONVICTED OF A CONSPIRACY TO OBTAIN FRAUDULENTLY THE SERVICES OF
THE NATIONAL LABOR RELATIONS BOARD BY FILING FALSE AFFIDAVITS IN
PURPORTED SATISFACTION OF THE REQUIREMENTS OF SEC. 9(H).  THOSE
PETITIONERS, LIKE THE PETITIONER HERE, ASKED THE COURT TO REVERSE DOUDS
AND HOLD SEC. 9(H) INVALID.  DECIDING THAT "THE CLAIMED INVALIDITY OF
SEC. 9(H) WOULD BE NO DEFENSE TO THE CRIME OF CONSPIRACY CHARGED IN
(THE) INDICTMENT," THE COURT REFUSED IN DENNIS TO "RECONSIDER DOUDS." 
384 U.S.,AT 867.  THE COURT, DRAWING ON UNITED STATES V. KAPP, 302 U.S.
214 (1937), AND KAY V. UNITED STATES, 303 U.S. 1 (1938), STATED: 

     "THE GOVERNING PRINCIPLE IS THAT A CLAIM OF
UNCONSTITUTIONALITY

  WILL NOT BE HEARD TO EXCUSE A VOLUNTARY, DELIBERATE AND

  CALCULATED COURSE OF FRAUD AND DECEIT.  ONE WHO ELECTS SUCH A

  COURSE AS A MEANS OF SELF-HELP MAY NOT ESCAPE THE CONSEQUENCES BY

URGING THAT HIS CONDUCT BE EXCUSED BECAUSE THE STATUTE WHICH HE

  SOUGHT TO EVADE IS UNCONSTITUTIONAL.  THIS IS A PROSECUTION

  DIRECTED AT PETITIONERS' FRAUD.  IT IS NOT AN ACTION TO ENFORCE

  THE STATE CLAIMED TO BE UNCONSTITUTIONAL."  384 U.S.,AT 867. 

WE FIND THE PRINCIPLE OF DENNIS NO LESS APPLICABLE IN THE CASE
BEFORE US.  FIRST, NONE OF THE ELEMENTS OF PROOF NECESSARY FOR
PETITIONER'S CONVICTION UNDER SEC. 1001 HAS BEEN SHOWN TO DEPEND ON THE
VALIDITY OF SEC. 9(H).  PETITIONER SUGGESTS IN THIS COLLATERAL
PROCEEDING THAT WHEN HE FILED HIS AFFIDAVIT HE MISUNDERSTOOD THE
MEANING OF THE STATUTORY TERM "AFFILIATED," A WORD WHICH HE CLAIMS IS
UNCONSTITUTIONALLY VAGUE AND OVERBROAD.  BUT THE TRIAL COURT NARROWLY
DEFINED THE TERM IN AN INSTRUCTION /7/  LATER EXPLICITLY APPROVED BY
THIS COURT IN KILLIAN V. UNITED STATES, 368 U.S. 231, 254-258 (1961). 
MOREOVER, THE JURY'S VERDICT REFLECTS A DETERMINATION THAT PETITIONER'S
FALSE STATEMENT WAS KNOWINGLY AND WILLFULLY MADE.  THIS NEGATES ANY
CLAIM THAT PETITIONER DID NOT KNOW THE FALSITY OF HIS STATEMENT AT THE
TIME IT WAS MADE, OR THAT IT WAS THE PRODUCT OF AN ACCIDENT, HONEST
INADVERTENCE, OR DURESS.  INSOFAR AS PETITIONER IN THIS COLLATERAL
PROCEEDING ATTEMPTS TO SUGGEST THE CONTRARY, /8/  HE IS SIMPLY TRYING
TO IMPEACH THE JURY'S VERDICT, UPHELD AFTER CAREFUL REVIEW ON DIRECT
APPEAL. 

AS ANOTHER ELEMENT OF THE OFFENSE, SEC. 1001 REQUIRES THAT THE FALSE
STATEMENT BE MADE "IN ANY MATTER WITHIN THE JURISDICTION OF ANY
DEPARTMENT OR AGENCY OF THE UNITED STATES."  PETITIONER ARGUES THAT IF
SEC. 9(H) WAS UNCONSTITUTIONAL, THEN THE AFFIDAVIT REQUIREMENT WAS NOT
WITHIN THE "JURISDICTION" OF THE BOARD, AND THEREFORE THE FALSE
STATEMENT WAS NOT PUNISHABLE UNDER SEC. 1001.  BECAUSE THERE IS A VALID
LEGISLATIVE INTEREST IN PROTECTING THE INTEGRITY OF OFFICIAL INQUIRIES,
SEE UNITED STATES V. BRAMBLETT, 348 U.S. 503 (1955); UNITED STATES V.
GILLILAND, 312 U.S. 86, 93 (1941), /9/  WE THIN THE TERM "JURISDICTION"
SHOULD NOT BE GIVEN A NARROW OR TECHNICAL MEANING FOR PURPOSES OF SEC.
1001, OGDEN V. UNITED STATES, 303 F.2D 724, 742-743 (CA 9TH CIR. 1962);
UNITED STATES V. ADLER, 380 F.2D 917, 921-922 (C.A. 2D CIR 1967).  A
STATUTORY BASIS FOR AN AGENCY'S REQUEST FOR INFORMATION PROVIDES
JURISDICTION ENOUGH TO PUNISH FRAUDULENT STATEMENTS UNDER SEC. 1001. 
/10/ 

IN THIS CASE, THE BOARD RECEIVED PETITIONER'S AFFIDAVIT PURSUANT TO
EXPLICIT STATUTORY AUTHORITY, WHICH ONLY A SHORT TIME BEFORE HAD BEEN
UPHELD AS CONSTITUTIONAL IN DOUDS.  GIVEN THAT UNDER SEC. 9(H) THE
BOARD'S "POWER TO ACT ON UNION CHARGES (WAS) CONDITIONED ON FILING OF
THE NECESSARY AFFIDAVITS," LEEDOM V. INTERNATIONAL UNION OF MINE
WORKERS, 352 U.S. 145, 148-149 (1956), THE BOARD CERTAINLY HAD THE
APPARENT AUTHORITY, GRANTED BY STATUTE, NECESSARY FOR PURPOSES OF SEC.
1001.  THUS, WE HOLD THAT IRRESPECTIVE OF WHETHER DOUDS WOULD BE
REAFFIRMED TODAY, PETITIONER MADE A FALSE STATEMENT IN A "MATTER WITHIN
THE JURISDICTION" OF THE BOARD.  /11/ 

NOTWITHSTANDING THE FACT THAT THE GOVERNMENT HAS PROVED THE ELEMENTS
NECESSARY FOR A CONVICTION UNDER SEC. 1001, THE PETITIONER WOULD HAVE
US SAY THAT THE INVALIDITY OF SEC. 9(H) WOULD PROVIDE A DEFENSE TO HIS
CONVICTION.  BUT AFTER DENNIS IT CANNOT BE THOUGHT THAT AS A GENERAL
PRINCIPLE OF OUR LAW A CITIZEN HAS A PRIVILEGE TO ANSWER FRAUDULENTLY A
QUESTION THAT THE GOVERNMENT SHOULD NOT HAVE ASKED.  OUR LEGAL SYSTEM
PROVIDES METHODS FOR CHALLENGING THE GOVERNMENT'S RIGHT TO ASK
QUESTIONS /12/  -- LYING IS NOT ONE OF THEM.  A CITIZEN MAY DECLINE TO
ANSWER THE QUESTION, OR ANSWER IT HONESTLY, BUT HE CANNOT WITH IMPUNITY
KNOWINGLY AND WILLFULLY ANSWER WITH A FALSEHOOD. 

        III 

PETITIONER ARGUES, AND THE DISTRICT COURT ALSO FOUND, THAT DENNIS IS
DISTINGUISHABLE, AND THAT ITS TEACHINGS THEREFORE HAVE NO RELEVANCE IN
THIS INSTANCE.  THE FIRST DISTINCTION OFFERED IS THAT DENNIS INVOLVED A
CONVICTION FOR CONSPIRACY, WHEREAS THIS PETITIONER WAS PROSECUTED UNDER
SEC. 1001 FOR INDIVIDUALLY MAKING A FALSE STATEMENT.  /13/  WE SEE
NOTHING IN THAT FACT THAT MAKES DENNIS LESS APPLICABLE IN THIS
INSTANCE.  THE CASES ARE INDEED VERY SIMILAR IN THAT BOTH INVOLVE THE
USE OF FALSE AFFIDAVITS "TO CIRCUMVENT THE LAW AND NOT TO CHALLENGE IT-
A PURPORTED COMPLIANCE WITH (SEC. 9(H) WAS) DESIGNED TO AVOID THE
COURTS, NOT TO INVOKE THEIR JURISDICTION."  384 U.S.,AT 865. 

PETITIONER ALSO ATTEMPTS TO DISTINGUISH DENNIS ON THE GROUND THAT
THE BEHAVIOR INVOLVED IN THE PRESENT CASE WAS LESS CULPABLE THAN THAT
FOUND PUNISHABLE IN DENNIS, AND THAT THIS PETITIONER, UNLIKE THE
PETITIONERS IN DENNIS, DID NOT "FLOUT" THE LAW FOR HE HAD "EVERY RIGHT
TO BELIEVE" THAT HE HAD NOT PERJURED HIMSELF.  IF APART FROM ATTEMPTING
TO IMPEACH THE JURY'S VERDICT, SEE N. 8, SUPRA, PETITIONER IS
SUGGESTING THAT THE PRINCIPLES OF DENNIS DEPEND ON AN ASSESSMENT OF
MORAL CULPABILITY BEYOND THE JURY'S DETERMINATION OF GUILT, HE SIMPLY
MISCONCEIVES THE BASIS OF DENNIS.  DENNIS CAN HARDLY BE READ AS
INSTRUCTING COURTS TO IMPOSE AN EXTRA PUNISHMENT ON A DEFENDANT FOUND
TO HAVE BEEN DISHONEST BY REFUSING TO CONSIDER A CONSTITUTIONAL
ARGUMENT THAT IS LEGALLY RELEVANT TO HIS DEFENSE.  DENNIS REFUSED TO
RECONSIDER DOUDS BECAUSE OF THE LEGAL CONCLUSION THAT THE
CONSTITUTIONALITY OF SEC. 9(H) WAS NOT RELEVANT TO THE VALIDITY OF THE
CONSPIRACY PROSECUTION. 

PETITIONER FINALLY CONTENDS THAT THE COURT SHOULD NOT FOLLOW DENNIS
BECAUSE "ITS STRICTURES . . .HAVE NO RELEVANCE AT ALL TO POSTCONVICTION
PROCEEDINGS."  OF COURSE, FEDERAL COURTS HAVE JURISDICTION TO CONSIDER
CONSTITUTIONAL CLAIMS ON COLLATERAL REVIEW, BUT A SUBSTANTIVE DEFENSE
THAT IS NOT LEGALLY RELEVANT ON DIRECT REVIEW BECOMES NO MORE RELEVANT
BECAUSE ASSERTED ON COLLATERAL REVIEW. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              AFFIRMED. 

/1/  TITLE 18 U.S.C. 1001 PROVIDES:  "WHOEVER, IN ANY MATTER WITHIN
THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES
KNOWINGLY AND WILLFULLY FALSIFIES, CONCEALS OR COVERS UP BY ANY TRICK,
SCHEME, OR DEVICE A MATERIAL FACT, OR MAKES ANY FALASE, FICTITIOUS OR
FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKES OR USES ANY FALSE
WRITING OR DOCUMENT KNOWING THE SAME TO CONTAIN ANY FALSE, FICTITIOUS
OR FRAUDULENT STATEMENT OR ENTRY, SHALL BE FINED NOT MORE THAN $10,000
OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH." 

/2/  UNTIL REPEALED IN 1959, SEC. 9(H) OF THE NATIONAL LABOR
RELATIONS ACT, 61 STAT. 146, PROVIDED THAT NO LABOR ORGANIZATION COULD
DRAW UPON THE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD UNLESS
EACH OFFICER OF SUCH ORGANIZATION HAD FILED WITH THE BOARD UNLESS EACH
OFFICER OF SUCH ORGANIZATION HAD FILED WITH THE BOARD AN AFFIDAVIT
STATING "THAT HE IS NOT A MEMBER OF THE COMMUNIST PARTY OR AFFILIATED
WITH SUCH PARTY, AND THAT HE DOES NOT BELIEVE IN, AND IS NOT A MEMBER
OF OR SUPPORTS ANY ORGANIZATION THAT BELIEVES IN OR TEACHES, THE
OVERTHROW OF THE UNITED STATES GOVERNMENT BY FORCE OR BY ANY ILLEGAL OR
UNCONSTITUTIONAL METHODS.  THE PROVISIONS OF (SECS. 286, 287, 1001,
1022, AND 1023 OF TITLE 18) SHALL BE APPLICABLE IN RESPECT TO SUCH
AFFIDAVITS." 

/3/  SEE BRYSON V. UNITED STATES, 238 F.2D 657 (C.A. 9TH CIR. 1956),
REHEARING DENIED, 243 F.2D 837, CERT. DENIED, 355 U.S. 817 (1957). 
AFTER DIRECT REVIEW, BUT BEFORE INITIATING THIS PROCEEDING,
PETITIONER'S APPLICATION FOR REDUCTION OF SENTENCE WAS REJECTED, BRYSON
V. UNITED STATES, 265 F.2D 9 (C.A. 9TH CIR.), CERT. DENIED, 360 U.S.
919 (1959). 

/4/  AFTER HIS CONVICTION, PETITIONER HAD BEEN SENTENCED TO FIVE
YEARS' IMPRISONMENT AND A $10,000 FINE.  HE HAD SERVED ALMOST TWO YEARS
OF HIS SENTENCE BEFORE BEING PAROLED IN DECEMBER 1959.  BECAUSE ONLY
$2,000 OF HIS FINE HAD BEEN PAID, HOWEVER, PETITIONER HAD NOT YET BEEN
DISCHARGED FROM HIS PAROLE STATUS WHEN HE COMMENCED THE PRESENT
PROCEEDINGS IN 1967. 

/5/  THE JURY ACQUITTED PETITIONER OF THE SEPARATE CHARGE THAT HE
HAD FRAUDULENTLY DENIED THAT HE WAS A "MEMBER" OF THE COMMUNIST PARTY. 

/6/  SECTION 504, LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF
1959, 73 STAT. 536, 29 U.S.C. 504. 

/7/  THE INSTRUCTIONS OF THE COURT ON AFFILIATION WERE: 

"THE VERB 'AFFILIATED,' AS USED IN THE SECOUND COUNT OF THE
INDICTMENT, MEANS A RELATIONSHIP SHORT OF AND LESS THAN MEMBERSHIP IN
THE COMMUNIST PARTY, BUT MORE THAN THAT OF MERE SYMPATHY FOR THE AIMS
AND OBJECTIVES OF THE COMMUNIST PARTY.     "A PERSON MAY BE FOUND TO BE
'AFFILIATED' WITH AN ORGANIZATION, EVEN THOUGH NOT A MEMBER, WHEN THERE
IS SHOWN TO BE A CLOSE WORKING ALLIANCE OR ASSOCIATION BETWEEN HIM AND
THE ORGANIZATION, TOGETHER WITH A MUTUAL UNDERSTANDING OR RECOGNITION
THAT THE ORGANIZATION CAN RELY AND DEPEND UPON HIM TO COOPERATE WITH
IT, AND TO WORK FOR ITS BENEFIT, FOR AN INDEFINITE FUTURE PERIOD UPON A
FAIRLY PERMANENT BASIS. 

"BRIEFLY STATED, AFFILIATION AS CHARGED IN THE SECOND COUNT OF THE
INDICTMENT, MEANS A RELATIONSHIP WHICH IS EQUIVALENT OR EQUAL TO THAT
OF MEMBERSHIP IN ALL BUT NAME.     "I TRIED TO THINK OF SOME ANALOGY
WHICH WOULD MAKE THAT POSSIBLY CLEARER TO YOU, AND THE BEST ONE I CAN
THINK OF-- WE HAVE ALL IN OUR EXPERIENCE PROBABLY HEARD OF A MAN AND
WOMAN WHO LIVE TOGETHER BUT ARE NOT MARRIED.  THEY ARE HUSBAND AND WIFE
IN EVERYTHING BUT NAME ONLY.  YOU HAVE PROBABLY HEARD THAT EXPRESSION. 
A PERSON TO BE AFFILIATED WITH THE COMMUNIST PARTY WITHIN THE MEANING
OF THAT TERM AS USED IN THE SECOND COUNT OF THE INDICTMENT MUST BE A
MEMBER IN EVERY SENSE AND STAND IN THE RELATIONSHIP OF A MEMBER IN
EVERY SENSE BUT THAT OF THE MERE TECHNICALITY OF BEING A MEMBER,-- IN
EVERYTHING BUT NAME."  BRYSON V. UNITED STATES, 238 F.2D,AT 664 N. 8. 

/8/ PETITIONER CLAIMS THAT HE DID NOT KNOW THAT HIS RELATIONSHIP
WITH THE COMMUNIST PARTY AMOUNTED TO AFFILIATION, AND THAT HE SIGNED
THE AFFIDAVIT SUBMITTED TO THE BOARD AFTER COUNSEL HAD ADVISED HIM THAT
HE WAS NOT AT THE TIME "AFFILIATED."  THIS IS APPARENTLY THE SAME CLAIM
HE MADE IN AN AFFIDAVIT PREPARED IN CONNECTION WITH HIS MOTION TO
REDUCE HIS SENTENCE.  AT HIS TRIAL, HOWEVER, PETITIONER DID NOT TAKE
THE STAND, AND HIS UNPROVED ALLEGATIONS ARE NOT EVEN FOUND IN THE
RECORD UPON WHICH THE JURY FOUND HIM GUILTY. 

/9/  IN CONCLUDING THAT THE BOARD HAD NO JURISDICTION FOR PURPOSES
OF SEC. 1001, THE DISTRICT COURT REASONED THAT IF SEC. 9(H) WERE
UNCONSTITUTIONAL, THE BOARD WAS NOT PERFORMING ONE OF ITS "AUTHORIZED
FUNCTIONS," A PHRASE TAKEN FROM UNITED STATES V. GILLILAND, 312 U.S.,AT
93.  BY TAKING GILLILAND'S UNELABORATED REFERENCE TO "AUTHORIZED
FUNCTIONS" OUT OF CONTEXT, THE DISTRICT COURT GAVE THAT PHRASE A
MEANING BOTH UNSUPPORTED BY THE HOLDING AND INCONSISTENT WITH THE
SPIRIT OF THAT DECISION.  THE HOLDING OF GILLILAND THAT THERE NEED BE
NO "PECUNIARY . . .LOSS TO THE GOVERNMENT" IN ORDER TO PUNISH
FRAUDULENT BEHAVIOR WAS BASED ON THE COURT'S CONCERN THAT THE STATUTE
BE GIVEN A BROAD READING IN ORDER TO PROTECT THE GOVERNMENT "FROM THE
PERVERSION WHICH MIGHT RESULT FROM THE DECEPTIVE PRACTICES DESCRIBED,"
IBID. 

/10/  WE DO NOT READ PREVIOUS DECISIONS OF THIS COURT, IN CONTEXTS
OTHER THAN PROSECUTIONS UNDER SEC. 1001, E.G., WILLIAMSON V. UNITED
STATES, 207 U.S. 425, 453-462 (1908); UNITED STATES V. GEORGE, 228 U.S.
14 (1913); VIERECK V. UNITED STATES, 318 U.S. 236 (1943); CHRISTOFFEL
V. UNITED STATES, 338 U.S. 84 (1949), AS INCONSISTENT WITH THIS
CONCLUSION.  PETITIONER HAS CITED NO CASES OF THIS COURT, AND WE KNOW
OF NONE, IN WHICH THERE EXISTED STATUTORY AUTHORITY TO REQUIRE A
STATEMENT BUT THE COURT NEVERTHELESS HELD THAT A PROSECUTION FOR A
FALSE ANSWER COULD NOT BE MAINTAINED BECAUSE THE STATUTE WAS LATER
DETERMINED INVALID.  FRIEDMAN V. UNITED STATES, 374 F.2D 363 (C.A. 8TH
CIR. 1967), CITED BY THE DISSENT, HELD THAT A FALSE AND FRAUDULENT
STATEMENT WILLFULLY AND KNOWINGLY GIVEN TO THE FBI IN ORDER "TO
INITIATE A FEDERAL PROSECUTION UNDER THE CIVIL RIGHTS LAWS" WAS NOT "IN
ANY MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR AGENCY" FOR
PURPOSES OF SEC. 1001 BECAUSE THE FBI "HAD NO POWER TO ADJUDICATE
RIGHTS, ESTABLISH BINDING REGULATIONS, COMPEL THE ACTION OR FINALLY
DISPOSE OF THE PROBLEM GIVING RISE TO THE INQUIRY."  ID., AT 365, 368. 
WE HAVE NO OCCASION IN THE PRESENT CONTEXT EITHER TO APPROVE OR
DISAPPROVE FRIEDMAN'S HOLDING. 

/11/  WE HAVE NO NEED TO DECIDE IN THIS CASE WHETHER JURISDICTION
WOULD EXIST UNDER SEC. 1001 IF AT THE TIME THE REQUEST FOR INFORMATION
WAS MADE A COURT HAD ALREADY AUTHORITATIVELY DETERMINED THAT THE
STATUTORY BASIS WAS INVALID.  CF. UNITED STATES V. KAPP, SUPRA. 

/12/  FOR TWO EXAMPLES OF HOW THE CONSTITUTIONAL VALIDITY OF SEC.
9(H) COULD BE RAISED, SEE AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S.,AT 385-387. 

/13/  IN SUPPORT OF THE CONTENTION THAT DENNIS WAS MEANT TO APPLY
ONLY TO CONSPIRACY CHARGES AND NOT SIMPLY TO SEC. 1001 VIOLATIONS, BOTH
THE DISTRICT COURT AND PETITIONER HERE QUOTE THE LANGUAGE IN DENNIS TO
THE EFFECT THAT:  "IT IS THE ENTIRE CONSPIRACY, AND NOT MERELY THE
FILING OF FALSE AFFIDAVITS, WHICH IS THE GRAVAMEN OF THE CHARGE."  384
U.S.,AT 860.  THAT LANGUAGE, HOWEVER, WAS ADDRESSED TO THE THRESHOLD
QUESTION THAT THE COURT FACED IN DENNIS, NAMELY, WHETHER THE FACTS
ALLEGED IN THE INDICTMENT WERE SUFFICIENT TO WARRANT A CONSPIRACY
CHARGE, WHICH REQUIRES ELEMENTS ADDITIONAL TO THOSE NECESSARY FOR A
VIOLATION OF SEC. 1001. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THIS CONVICTION WAS FOUNDED ON AN INDICTMENT WHICH IN THE WORDS OF
18 U.S.C. 1001 MAKES IT A CRIME TO FILE "ANY FALSE, FICTITIOUS OR
FRAUDULENT STATEMENTS OR REPRESENTATIONS" IN ANY MATTER "WITHIN THE
JURISDICTION" OF THE NATIONAL LABOR RELATIONS BOARD.  FORMER SEC. 9(H)
OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 29 U.S.C. 159(H) (1958
ED.), BARRED A UNION FROM USING THE SERVICES OF THE BOARD UNLESS AND
UNTIL EACH OF THE UNION'S OFFICERS HAD FILED HIS AFFIDAVIT THAT HE WAS
NEITHER A MEMBER OF NOR AFFILIATED WITH THE COMMUNIST PARTY.  THE BASIC
QUESTION IN THIS PROCEEDING UNDER 28 U.S.C. 2255 IS WHETHER
CONSTITUTIONALLY SPEAKING IT WAS "WITHIN THE JURISDICTION" OF THE BOARD
TO REQUIRE THE FILING OF THOSE AFFIDAVITS. 

OBVIOUSLY THE POWER OF CONGRESS TO AUTHORIZE PROSECUTION FOR CRIMES
OF THIS CHARACTER MUST REST ON AN INTERFERENCE WITH OR OBSTRUCTION OF
SOME "LAWFUL" FUNCTION OF THE AGENCY IN QUESTION.  SEE UNITED STATES V.
JOHNSON, 383 U.S. 169, 172.  APART FROM CONSTITUTIONAL PROBLEMS, THE
QUESTION OF WHAT IS "WITHIN THE JURISDICTION" OF AN AGENCY SHOULD BE
CONSTRUED IN A RESTRICTIVE, NOT AN EXPANSIVE, WAY.  THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT SO HELD IN FRIEDMAN V. UNITED STATES,
374 F.2D 363, WHEN IT RULED THAT TELLING A FALSEHOOD TO THE FBI IN ITS
ROEL AS "INVESTIGATOR" WAS NOT "WITHIN THE JURISDICTION" OF THAT AGENCY
IN THE SENSE OF SEC. 1001.  IF IT WERE, THEN TELLING LIES TO AGENCIES
WOULD CARRY HEAVIER PENALTIES THAN COMMITTING PERJURY IN COURT.  374
F.2D, AT 367. 

THE WORDS "WITHIN THE JURISDICTION" MUST BE READ NOT ONLY WITH THE
COMMON-SENSE APPROACH OF FRIEDMAN BUT ALSO IN LIGHT OF OUR
CONSTITUTIONAL REGIME.  ONE OF MANY MANDATES IMPOSED ON CONGRESS BY THE
CONSTITUTION IS THE PROHIBITION AGAINST BILLS OF ATTAINDER.  ART. I,
SEC. 9. 

IT WAS SAID IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382,
THAT SEC. 9(H) WAS NOT A BILL OF ATTAINDER.  THE OPINION WAS BY MR.
CHIEF JUSTICE VINSON AND IT WAS CALLED AN "OPINION OF THE COURT."  IT
WAS, HOWEVER, A SIX-MAN COURT AND THE RULING ON THE BILL OF ATTAINDER
POINT WAS IN PART VII OF THE OPINION.  MR. JUSTICE FRANKFURTER
CONCURRED IN THE OPINION "EXCEPT AS TO PART VII."  ID., AT 415.  MR.
JUSTICE JACKSON CONCURRED IN PART AND DISSENTED IN PART.  ID., AT 422. 
OR BELIEF WHICH HAD NOT MANIFESTED ITSELF "IN ANY OVERT ACT."  ID., AT
436.  HE SAID: 

     "ATTEMPTS OF THE COURTS TO FATHOM MODERN POLITICAL MISCHIEVOUS

  AS THE EFFORTS IN THE INFAMOUS HERESY TRIALS OF OLD TO FATHOM

  RELIGIOUS BELIEFS."  ID., AT 437. 

     "(EFFORTS TO WEED ERRONEOUS BELIEFS FROM THE MINDS OF MEN HAVE

  ALWAYS BEEN SUPPORTED BY THE ARGUMENT WHICH THE COURT INVOKES

  TODAY, THAT BELIEFS ARE SPRINGS TO ACTION, THAT EVIL THOUGHTS

  TEND TO BECOME FORBIDDEN DEEDS.  PROBABLY SO.  BUT IF POWER TO

  FORBID ACTS INCLUDES POWER TO FORBID CONTEMPLATING THEM, THEN THE

  POWER OF GOVERNMENT OVER BELIEFS IS AS UNLIMITED AS ITS POWER

OVER CONDUCT AND THE WAY IS OPEN TO FORCE DISCLOSURE OF ATTITUDES

  ON ALL MANNER OF SOCIAL, ECONOMIC, MORAL AND POLITICAL ISSUES." 

  ID., AT 438. 

FROM THIS OPINION I CONCLUDE THAT MR. JUSTICE JACKSON DID NOT REACH
THE BILL OF ATTAINDER POINT IN MR. CHIEF JUSTICE VINSON'S OPINION.  AND
MR. JUSTICE BLACK DISSENTED.  ID., AT 445. 

SO I CONCLUDE THAT NO MORE THAN THREE MEMBERS OF THE COURT (VINSON,
C.J., AND REED AND BURTON, JJ.)  EVER HELD THAT SEC. 9(H) WAS
CONSTITUTIONAL AGAINST THE CHALLENGE THAT IT WAS A BILL OF ATTAINDER. 

IN UNITED STATES V. BROWN, 381 U.S. 437, WE HELD THAT THE SUCCESSOR
OF SEC. 9(H), SEC. 504 OFTHE LABOR-MANAGEMENT REPORTING AND DISCLOSURE
ACT OF 1959, 29 U.S.C. 504, WAS A BILL OF ATTAINDER.  IT MADE IT A
CRIME FOR A MEMBER OF THE COMMUNIST PARTY TO SERVE AS AN OFFICER OR
EMPLOYEE (EXCEPT IN CLERICAL OR CUSTODIAL POSITIONS) OF A LABOR UNION. 
THE VINSON OPINION IN DOUDS UPHELD SEC. 9(H) ON THE BASIS THAT IT WAS
"INTENDED TO PREVENT FUTURE ACTION RATHER THAN TO PUNISH PAST ACTION." 
339 U.S.,AT 414.  IN BROWN, IT WAS LIKEWISE ARGUED THAT THE STATUTE
THERE INVOLVED WAS "PREVENTIVE RATHER THAN RETRIBUTIVE IN PURPOSE." 
381 U.S.,AT 457.  THAT VIEW WAS REJECTED.  THE QUESTION, WE SAID, WAS
WHETHER SEC. 504 INFLICTED "PUNISHMENT" WHICH, WE POINTED OUT, "SERVES
SEVERAL PURPOSES:  RETRIBUTIVE, REHABILITATIVE, DETERRENT-- AND
PREVENTIVE."  ID., AT 458.  THE DISSENTERS-- MR. JUSTICE CLARK, MR.
JUSTICE HARLAN, MR. JUSTICE STEWART, AND MR. JUSTICE WHITE-- CONCLUDED
THAT DOUDS WAS "OBVIOUSLY OVERRULED."  ID., AT 464-465.  WHATEVER MAY
BE SAID TECHNICALLY ABOUT ANY REMAINING VITALITY OF THE DOUDS CASE, IT
OBVIOUSLY BELONGS TO A DISCREDITED REGIME, THOUGH, LIKE PLESSY V.
FERGUSON, 163 U.S. 537, IT HAS NEVER BEEN OFFICIALLY OVERRULED. 

THE RULE INVOKED BY THE COURT TO DENY PETITIONER THE OPPORTUNITY TO
CHALLENGE THAT BILL OF ATTAINDER IN THIS PROCEEDING IS, AS STATED BY
MR. JUSTICE BLACK IN HIS SEPARATE OPINION IN DENNIS V. UNITED STATES,
384 U.S. 855, 878, "A NEW COURT-MADE DOCTRINE."  AS HE POINTED OUT IN
THAT OPINION, THE PRIOR DECISIONS OF THIS COURT RELIED ON TO DENY THE
DEFENSE OF UNCONSTITUTIONALITY OF A FEDERAL LAW WERE INSTANCES OF FALSE
CLAIMS FOR BENEFITS TO WHICH THE COMPLAINANT HAD "NO POSSIBLE RIGHT
WHETHER THE STATUTE WAS CONSTITUTIONAL OR UNCONSTITUTIONAL."  IBID. 

IN THIS CASE, HOWEVER, CONGRESS INSTALLED AN UNCONSTITUTIONAL
BARRIER TO RECEIPT OF THE BENEFITS ADMINISTERED BY THE LABOR BOARD. 
SINCE SEC. 9(H), IN LIGHT OF BROWN, WAS PLAINLY UNCONSTITUTIONAL,
PETITIONER'S UNION WAS ENTITLED TO THOSE SERVICES WITHOUT THE FILING OF
ANY AFFIDAVIT.  THEREFORE, UNLIKE PRIOR CASES, THE UNITED STATES HAD
BEEN DEPRIVED OF NOTHING AND DEFRAUDED OF NOTHING BY THE FILING OF ANY
AFFIDAVIT OR OTHER FORM OF CLAIM. 

I WOULD REVERSE THE JUDGMENT BELOW. 

RICHARD GLADSTEIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS NORMAN LEONARD. 

FRANCIS X. BEYTAGH, JR., ARGUED THE CAUSE FOR THE UNITED STATES.  ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
YEAGLEY, KEVIN T. MARONEY, AND LEE B. ANDERSON. 
..END :













UNITED STATES V. KNOX, 396 U.S. 77 


       UNITED STATES V. KNOX

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF TEXAS

        NO. 17.  ARGUED OCTOBER 14, 1969-- DECIDED DECEMBER 8,
1969 


THIS IS AN APPEAL BY THE GOVERNMENT FROM THE DISMISSAL OF TWO COUNTS
OF AN INDICTMENT CHARGING APPELLEE WITH VIOLATING 18 U.S.C. 1001 BY
MAKING FALSE STATEMENTS IN WAGERING TAX FORMS REQUIRED BY 26 U.S.C.
4412.  THE DISTRICT COURT DISMISSED THE INDICTMENT, REASONING THAT
APPELLEE COULD NOT BE PROSECUTED FOR "FAILURE TO ANSWER THE WAGERING
FORM CORRECTLY" SINCE HIS PRIVILEGE AGAINST SELF-INCRIMINATION WOULD
HAVE PREVENTED PROSECUTION FOR "FAILURE TO ANSWER THE FORM IN ANY
RESPECT."  HELD: 

1.  ONE WHO FURNISHES FALSE INFORMATION TO THE GOVERNMENT IN FEIGNED
COMPLIANCE WITH A STATUTORY REQUIRMENT CANNOT DEFEND AGAINST
PROSECUTION FOR HIS FRAUD BY CHALLENGING THE VALIDITY OF THE
REQUIREMENT ITSELF.  BRYSON V. UNITED STATES, ANTE, P. 64.  PP. 79-80. 

2.  BY FILING FALSE STATEMENTS APPELLEE TOOK A COURSE OTHER THAN THE
ONE THAT SEC. 4412 WAS DESIGNED TO COMPEL, A COURSE THAT THE FIFTH
AMENDMENT GAVE HIM NO PRIVILEGE TO TAKE.  PP. 81-82. 

3.  WHETHER, AS APPELLEE ARGUES, HE GAVE THE FALSE INFORMATION UNDER
THE DURESS OF SECS. 4412 AND 7203 OF THE INTERNAL REVENUE CODE, OR HIS
FALSE STATEMENTS WERE NOT MADE "WILLFULLY" AS REQUIRED BY 18 U.S.C.
1001, MUST BE DETERMINED INITIALLY AT HIS TRIAL.  PP. 82-84. 

298 F.SUPP.  1260, REVERSED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

APPELLEE KNOX HAD BEEN CHARGED WITH SIX COUNTS OF VIOLATION OF FEDERAL
LAW IN CONNECTION WITH HIS WAGERING ACTIVITIES.  THE FIRST FOUR COUNTS
OF THE INDICTMENT CHARGE THAT BETWEEN JULY 1964 AND OCTOBER 1965 HE
ENGAGED IN THE BUSINESS OF ACCEPTING WAGERS WITHOUT FIRST FILING
INTERNAL REVENUE SERVICE FORM 11-C, THE SPECIAL RETURN AND REGISTRATION
APPLICATION REQUIRED BY SEC. 4412 OF THE INTERNAL REVENUE CODE OF 1954,
AND WITHOUT FIRST PAYING THE OCCUPATIONAL TAX IMPOSED BY SEC. 4411 OF
THE CODE.  COUNTS FIVE AND SIX CHARGE THAT WHEN KNOX DID FILE SUCH A
FORM ON OCTOBER 14, 1965, AND WHEN HE FILED A SUPPLEMENTAL FORM THE
NEXT DAY, HE KNOWINGLY AND WILLFULLY UNDERSTATED THE NUMBER OF
EMPLOYEES ACCEPTING WAGERS ON HIS BEHALF-- IN VIOLATION OF 18 U.S.C.
1001, A GENERAL CRIMINAL PROVISION PUNISHING FRAUDULENT STATEMENTS MADE
TO ANY FEDERAL AGENCY. 

KNOX MOVED TO DISMISS THE INDICTMENT, ASSERTING THAT THIS COURT'S
DECISIONS IN MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968), AND GROSSO
V. UNITED STATES, 390 U.S. 62 (1968), HAD HELD INVALID /1/  THE
PROVISIONS OF THE WAGERING TAX LAWS THAT REQUIRED HIM TO FILE THE
SPECIAL RETURN.  THE GOVERNMENT IN RESPONSE STATED THAT IT WOULD NOT
PURSUE THE FIRST FOUR COUNTS BUT ARGUED THAT KNOX'S OBJECTIONS BASED ON
THE MARCHETTI AND GROSSO DECISIONS WERE "LARGELY IRRELEVANT" TO COUNTS
FIVE AND SIX.  THE DISTRICT COURT DISAGREED.  IT DISMISSED ALL SIX
COUNTS, REASONING THAT KNOX COULD NOT BE PROSECUTED FOR HIS "FAILURE TO
ANSWER THE WAGERING FORM CORRECTLY" SINCE HIS FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION WOULD HAVE PREVENTED PROSECUTION FOR
"FAILURE TO ANSWER THE FORM IN ANY RESPECT."  298 F.SUPP.  1260, 1261. 
THE UNITED STATES FILED A DIRECT APPEAL TO THIS COURT FROM THE
DISMISSAL OF THE TWO COUNTS CHARGING VIOLATIONS OF SEC. 1001, AND WE
NOTED PROBABLE JURISDICTION, 394 U.S. 971 (1969).  /2/ 

IN BRYSON V. UNITED STATES, ANTE, P. 64, DECIDED TODAY, WE
REAFFIRMED THE HOLDING OF DENNIS V. UNITED STATES, 384 U.S. 855 (1966),
THAT ONE WHO FURNISHES FALSE INFORMATION TO THE GOVERNMENT IN FEIGNED
COMPLIANCE WITH A STATUTORY REQUIREMENT CANNOT DEFEND AGAINST
PROSECUTION FOR HIS FRAUD BY CHALLENGING THE VALIDITY OF THE
REQUIREMENT ITSELF.  BRYSON, LIKE DENNIS, INVOLVED SEC. 9(H) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE TAFT-HARTLEY ACT, 61
STAT. 146, WHICH WAS ATTACKED AS AN ABRIDGMENT OF FIRST AMENDMENT
FREEDOMS AND AS A BILL OF ATTAINDER FORBIDDEN BY ART. I, SEC. 9, OF THE
CONSTITUTION.  IN CONTRAST, KNOX ALLEGES INFRINGEMENT OF HIS FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.  WE DO NOT THINK THAT
THE DIFFERENT CONSTITUTIONAL SOURCE FOR KNOX'S CLAIM REMOVES HIS CASE
FROM THE AMBIT OF THE PRINCIPLE LAID DOWN IN THOSE DECISIONS.  THE
VALIDITY OF THE GOVERNMENT'S DEMAND FOR INFORMATION IS NO MORE AN
ELEMENT OF A VIOLATION OF SEC. 1001 HERE THAN IT WAS IN BRYSON.  /3/ 

THE INDICTMENT CHARGES THAT THE FORMS KNOX FILED WITH THE DISTRICT
DIRECTOR OF INTERNAL REVENUE CONTAINED FALSE, MATERIAL INFORMATION, /4/
AN ACCUSATION THAT CONCEDEDLY FALLS WITHIN THE TERMS OF SEC. 1001. 
HOWEVER, KNOX CLAIMS THAT THE FIFTH AMENDMENT BARS PUNISHING HIM FOR
THE FILINGS BECAUSE THEY WERE NOT VOLUNTARY BUT WERE COMPELLED BY SECS.
4412 AND 7203 OF THE INTERNAL REVENUE CODE.  HE POINTS OUT THAT IF HE
HAD FILED TRUTHFUL AND COMPLETE FORMS AS REQUIRED BY SEC. 4412, HE
WOULD HAVE INCRIMINATED HIMSELF UNDER TEXAS WAGERING LAWS.  ON THE
OTHER HAND, IF HE HAD FILED NO FORMS AT ALL, HE WOULD HAVE SUBJECTED
HIMSELF TO CRIMINAL PROSECUTION UNDER SEC. 7203.  /5/  IN CHOOSING THE
THIRD ALTERNATIVE, SUBMISSION OF A FRAUDULENT FORM, HE MERELY OPTED FOR
THE LEAST OF THREE EVILS, UNDER A FORM OF DURESS THAT ALLEGEDLY MAKES
HIS CHOICE INVOLUNTARY FOR PURPOSES OF THE FIFTH AMENDMENT. 

FOR THIS PROPOSITION KNOX RELIES ON UNITED STATES V. LOOKRETIS, 398
F.2D 64 (C.A. 7TH CIR. 1968), WHERE, AFTER THIS COURT HAS REMANDED FOR
RECONSIDERATION IN LIGHT OF MARCHETTI, SEE 390 U.S. 338 (1968), THE
COURT OF APPEALS RULED THAT TRUTHFUL DISCLOSURES MADE UNDER THE
COMPULSION OF SEC. 4412 COULD NOT BE INTRODUCED AGAINST THEIR MAKER IN
A CRIMINAL PROCEEDING.  HOWEVER, THE FIFTH AMENDMENT WAS OFFENDED IN
LOOKRETIS PRECISELY BECAUSE THE DEFENDANT HAD SUCCUMBED TO THE
STATUTORY COMPULSION BY FURNISHING THE REQUESTED INCRIMINATORY
INFORMATION.  KNOX DOES NOT CLAIM THAT HIS PROSECUTION IS BASED UPON
ANY INCRIMINATORY INFORMATION.  HE HAS TAKEN A COURSE OTHER THAN THE
ONE THAT THE STATUTE WAS DESIGNED TO COMPEL, A COURSE THAT THE FIFTH
AMENDMENT GAVE HIM NO PRIVILEGE TO TAKE. 

THIS IS NOT TO DENY THAT THE PRESENCE OF SECS. 4412 AND 7203
INJECTED AN ELEMENT OF PRESSURE INTO KNOX'S PREDICAMENT AT THE TIME HE
FILED THE FORMS.  AT THAT TIME, THIS COURT'S DECISIONS IN UNITED STATES
V. KAHRIGER, 345 U.S. 22 (1953), AND LEWIS V. UNITED STATES, 348 U.S.
419 (1955), ESTABLISHED THAT THE FIFTH AMENDMENT DID NOT BAR
PROSECUTION FOR FAILURE TO FILE A FORM SUCH AS 11-C.  BUT WHEN KNOX
RESPONDED TO THE PRESSURE UNDER WHICH HE FOUND HIMSELF BY COMMUNICATING
FALSE INFORMATION, THIS WAS SIMPLY NOT TESTIMONIAL COMPULSION.  KNOX'S
GROUND FOR COMPLAINT IS NOT THAT HIS FALSE INFORMATION INCULPATED HIM
FOR A PRIOR OR SUBSEQUENT CRIMINAL ACT; RATHER, IT IS THAT UNDER THE
COMPULSION OF SECS. 4412 AND 7203 HE COMMITTED A CRIMINAL ACT, THAT OF
GIVING FALSE INFORMATION TO THE GOVERNMENT.  IF THE COMPULSION WAS
UNLAWFUL UNDER MARCHETTI, /6/  KNOX MAY HAVE A DEFENSE TO THIS
PROSECUTION UNDER THE TRADITIONAL DOCTRINE THAT A PERSON IS NOT
CRIMINALLY RESPONSIBLE FOR AN ACT COMMITTED UNDER DURESS.  SEE
GENERALLY MODEL PENAL CODE SECS. 2.09, 3.02 (PROPOSED OFFICIAL DRAFT,
1962); ID., SEC. 2.09, COMMENT (TENT.  DRAFT NO. 10, 1960).  IT IS ONLY
IN THIS SENSE THAT THERE IS ANY RELEVANCE TO KNOX'S ATTEMPTED
DISTINCTION OF THIS CASE FROM DENNIS, BRYSON, AND THEIR PREDECESSORS,
UNITED STATES V. KAPP, 302 U.S. 214 (1937), AND KAY V. UNITED STATES,
303 U.S. 1 (1938), ON THE GROUND THAT IN THOSE CASES THE FALSE
STATEMENTS WERE VOLUNTARILY FILED FOR THE PURPOSE OF OBTAINING BENEFITS
FROM THE GOVERNMENT. 

KNOX ARGUES THAT THE CRIMINAL SANCTION FOR FAILURE TO FILE, COUPLED
WITH THE DANGER OF INCRIMINATION IF HE FILED TRUTHFULLY, WAS MORE
COERCIVE IN ITS EFFECT THAN, FOR EXAMPLE, THE PROSPECT THAT THE
PETITIONERS IN DENNIS WOULD LOSE THEIR JOBS AS UNION OFFICERS UNLESS
THEY FILED NON-COMMUNIST AFFIDAVITS.  WHILE THIS MAY BE SO, THE
QUESTION WHETHER KNOX'S PREDICAMENT CONTAINS THE SEEDS OF A "DURESS"
DEFENSE, OR PERHAPS WHETHER HIS FALSE STATEMENT WAS NOT MADE
"WILLFULLY" AS REQUIRED BY SEC. 1001, IS ONE THAT MUST BE DETERMINED
INITIALLY AT HIS TRIAL.  /7/  IT IS NOT BEFORE US ON THIS APPEAL FROM
DISMISSAL OF THE INDICTMENT, AND WE INTIMATE NO VIEW ON THE MATTER. 

THE JUDGMENT OF THE DISTRICT COURT IS

              REVERSED. 

/1/  BUT SEE NN. 3, 6, INFRA. 

/2/  SUCH A DIRECT APPEAL IS AUTHORIZED BY THE CRIMINAL APPEALS ACT,
18 U.S.C. 3731, WHICH PROVIDES:  "AN APPEAL MAY BE TAKEN BY AND ON
BEHALF OF THE UNITED STATES FROM THE DISTRICT COURTS DIRECT TO THE
SUPREME COURT OF THE UNITED STATES IN ALL CRIMINAL CASES IN THE
FOLLOWING INSTANCES: 

"FROM A DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING ANY
INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF, WHERE SUCH DECISION OR
JUDGMENT IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED. 

     .          .          .          . 

"FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY."  THE DISTRICT COURT SUSTAINED
THE CLAIM OF PRIVILEGE NOT ON THE BASIS OF FACTS PECULIAR TO THIS CASE
BUT ON THE BASIS OF ITS CONCLUSION THAT THE FIFTH AMENDMENT PROVIDES A
DEFENSE TO ANY PROSECUTION UNDER SEC. 1001 BASED ON MISSTATEMENTS ON A
FORM 11-C.  THIS AMOUNTS TO A HOLDING THAT SEC. 1001, AS APPLIED TO
THIS CLASS OF CASES, IS CONSTITUTIONALLY INVALID.  THE GENERALITY OF
THE IMPACT OF THE DISTRICT COURT'S HOLDING APPEARS TO US TO RENDER OUR
JURISDICTIONAL HOLDING A FORTIORI COMPARED TO ANALOGOUS JURISDICTIONAL
HOLDINGS IN SUCH CASES AS DAHNKE-WALKER MILLING CO. V. BONDURANT, 257
U.S. 282 (1921); FLEMING V. RHODES, 331 U.S. 100, 102-104 (1947);
WISSNER V. WISSNER, 338 U.S. 655 (1950); DEPARTMENT OF EMPLOYMENT V.
UNITED STATES, 385 U.S. 355, 356-357 (1966).  WE PREFER TO REST OUR
JURISDICTION ON THIS ASPECT OF SEC. 3731 RATHER THAN, AS ADVOCATED BY
THE GOVERNMENT, THE STATUTE'S "MOTION IN BAR" PROVISION, IN LIGHT OF
THE FACT THAT THE SCOPE OF THE LATTER PROVISION WILL BE THE SUBJECT OF
FULL-DRESS CONSIDERATION, AS WILL CERTAIN PROBLEMS UNDER THE
"DISMISSING ANY INDICTMENT" PROVISION NOT PRESENT IN THIS CASE, IN
UNITED STATES V. SISSON, CONSIDERATION OF JURISDICTION POSTPONED, POST,
P. 812. 

/3/  KNOX ARGUES THAT HIS FALSE FORMS 11-C WERE NOT FILED "IN ANY
MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE
UNITED STATES," A NECESSARY ELEMENT OF A VIOLATION OF SEC. 1001,
BECAUSE MARCHETTI AND GROSSO HELD THAT THE INTERNAL REVENUE SERVICE WAS
NOT AUTHORIZED TO REQUIRE THE FILING OF THE FORMS.  EVEN IF HIS READING
OF THOSE DECISIONS WERE CORRECT, HIS ARGUMENT WOULD FAIL FOR THE
REASONS EXPLAINED IN BRYSON.  THE INTERNAL REVENUE SERVICE HAS EXPRESS
STATUTORY AUTHORITY TO REQUIRE THE FILING, AND WHEN KNOX SUBMITTED HIS
FORMS THIS COURT HAD HELD THAT SUCH A REQUIREMENT RAISED NO SELF
INCRIMINATION PROBLEM.  UNITED STATES V. KAHRIGER, 345 U.S. 22 (1953);
LEWIS V. UNITED STATES, 348 U.S. 419 (1955).  FURTHER, IN MARCHETTI WE
DID NOT HOLD THAT THE GOVERNMENT IS CONSTITUTIONALLY FORBIDDEN TO
DIRECT THE FILING OF THE FORM, BUT ONLY THAT A PROPER ASSERTION OF THE
CONSTITUTIONAL PRIVILEGE BARS PROSECUTION FOR FAILURE TO COMPLY WITH
THE DIRECTION.  SEE N. 6, INFRA; SEE ALSO GROSSO V. UNITED STATES, 390
U.S.,AT 69-70, N. 7. 

/4/  KNOX CLAIMS ON APPEAL THAT NEITHER COUNT FIVE NOR COUNT SIX
CHARGES ANY AFFIRMATIVE MISSTATEMENTS, BUT ONLY OMISSIONS.  COUNT FIVE
CHARGES THAT THE STATEMENTS ON THE FORM FILED ON OCTOBER 14, 1965,
"WERE NOT TRUE, CORRECT, AND COMPLETE, IN THAT THE NUMBER OF EMPLOYEES
AND/OR AGENTS ENGAGED IN RECEIVING WAGERS IN HIS BEHALF WERE
MISREPRESENTED AND UNDERSTATED, IN THAT THE NUMBER, NAME, SPECIAL STAMP
NUMBER, STREET ADDRESS, AND CITY AND STATE OF EMPLOYEES AND/OR AGENTS
ENGAGED IN RECEIVING WAGERS IN THE SAID JAMES D. KNOX'S BEHALF HAD BEEN
OMITTED . . . ."  COUNT SIX CONTAINS LANGUAGE IDENTICAL EXCEPT FOR AN
APPARENTLY INADVERTENT DIFFERENCE IN PUNCTUATION.  ALTHOUGH THE WORDING
IS NOT ENTIRELY CLEAR, WE NEED NOT DECIDE WHETHER ON A FAIR READING THE
INDICTMENT ENCOMPASSES AFFIRMATIVE MISSTATEMENTS.  THE DISTRICT COURT
READ THE INDICTMENT AS ALLEGING THAT KNOX VIOLATED SEC. 1001 "BY
WILFULLY AND KNOWINGLY MAKING A FALSE STATEMENT" ON THE FORMS, AND IT
WAS ON THE BASIS OF THIS CONSTRUCTION THAT THE COURT DISMISSED COUNTS
FIVE AND SIX.  WE HAVE NO JURISDICTION ON THIS DIRECT APPEAL TO REVIEW
THE CONSTRUCTION OF THE INDICTMENT.  E.G., UNITED STATES V. HARRISS,
347 U.S. 612 (1954); UNITED STATES V. PETRILLO, 332 U.S. 1 (1947);
UNITED STATES V. BORDEN CO., 308 U.S. 188, 193 (1939).  BUT SEE UNITED
STATES V. CIO, 335 U.S. 106 (1948).  SEE ALSO N. 2, SUPRA. 

/5/  TITLE 26 U.S.C. 7203 PROVIDES:  "ANY PERSON REQUIRED UNDER THIS
TITLE TO PAY ANY ESTIMATED TAX OR TAX, OR REQUIRED BY THIS TITLE OR BY
REGULATIONS MADE UNDER AUTHORITY THEREOF TO MAKE A RETURN (OTHER THAN A
RETURN REQUIRED UNDER AUTHORITY OF SECTION 6015 OR SECTION 6016), KEEP
ANY RECORDS, OR SUPPLY ANY INFORMATION, WHO WILLFULLY FAILS TO PAY SUCH
ESTIMATED TAX OR TAX, MAKE SUCH RETURN, KEEP SUCH RECORDS, OR SUPPLY
SUCH INFORMATION, AT THE TIME OR TIMES REQUIRED BY LAW OR REGULATIONS,
SHALL, IN ADDITION TO OTHER PENALTIES PROVIDED BY LAW, BE GUILTY OF A
MISDEMEANOR AND, UPON CONVICTION THEREOF, SHALL BE FINED NOT MORE THAN
$10,000, OR IMPRISONED NOT MORE THAN 1 YEAR, OR BOTH, TOGETHER WITH THE
COSTS OF PROSECUTION." 

/6/  WE STRESSED IN MARCHETTI "THAT WE DO NOT HOLD THAT THESE
WAGERING TAX PROVISIONS ARE AS SUCH CONSTITUTIONALLY IMPERMISSIBLE; WE
HOLD ONLY THAT THOSE WHO PROPERLY ASSERT THE CONSTITUTIONAL PRIVILEGE
AS TO THESE PROVISIONS MAY NOT BE CRIMINALLY PUNISHED FOR FAILURE TO
COMPLY WITH THEIR REQUIREMENTS.  IF, IN DIFFERENT CIRCUMSTANCES, A
TAXPAYER IS NOT CONFRONTED BY SUBSTANTIAL HAZARDS OF SELF
INCRIMINATION, OR IF HE IS OTHERWISE OUTSIDE THE PRIVILEGE'S
PROTECTION, NOTHING WE DECIDE TODAY WOULD SHIELD HIM FROM THE VARIOUS
PENALTIES PRESCRIBED BY THE WAGERING TAX STATUTES."  390 U.S.,AT 61. 
NOTHING BEFORE US INDICATES THAT THE HAZARD OF INCRIMINATION FACED BY
KNOX WAS LESS SUBSTANTIAL THAN THAT FACED BY MARCHETTI, OR THAT KNOX
WOULD HAVE BEEN DISQUALIFIED FOR ANY OTHER REASON FROM ASSERTING THE
PRIVILEGE IN DEFENSE OF A PROSECUTION FOR FAILURE TO COMPLY WITH SEC.
4412. 

/7/  RULE 12(B)(1) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, WHICH
CAUTIONS THE TRIAL JUDGE THAT HE MAY CONSIDER ON A MOTION TO DISMISS
THE INDICTMENT ONLY THOSE OBJECTIONS THAT ARE "CAPABLE OF DETERMINATION
WITHOUT THE TRIAL OF THE GENERAL ISSUE," INDICATES THAT EVIDENTIARY
QUESTIONS OF THIS TYPE SHOULD NOT BE DETERMINED ON SUCH A MOTION. 
MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS, DISSENTING. 

IN THIS CASE, AS IN BRYSON V. UNITED STATES, ANTE, P. 64, THE
RELEVANT INQUIRY IS WHETHER "CONSTITUTIONALLY SPEAKING IT WAS 'WITHIN
THE JURISDICTION'" OF A GOVERNMENT AGENCY TO REQUIRE THE FILING OF
CERTAIN INFORMATION.  ID., AT 74 (DISSENTING OPINION).  IN MARCHETTI V.
UNITED STATES, 390 U.S. 39, 61, WE HELD THAT THE STATUTORY REQUIREMENT
OF FILING INTERNAL REVENUE SERVICE FORM 11-C IS NOT UNCONSTITUTIONAL
PER SE.  IT IS CLEAR, HOWEVER, THAT UNDER MARCHETTI, SUPRA, AND GROSSO
V. UNITED STATES, 390 U.S. 62, THE "JURISDICTION" OF THE INTERNAL
REVENUE SERVICE TO REQUIRE THIS FORM TO BE FILED IS SUBJECT TO THE
FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION. 

THIS IS NOT A CASE WHERE AN INDIVIDUAL, WITH KNOWLEDGE THAT HE HAS A
RIGHT TO REFUSE TO PROVIDE INFORMATION, NONETHELESS PROVIDES FALSE
INFORMATION.  UNDER THE DECISIONS IN UNITED STATES V. KAHRIGER, 345
U.S. 22, AND LEWIS V. UNITED STATES, 348 U.S. 419, WHICH WERE
CONTROLLING AT THE TIME KNOX FILED HIS WAGERING FORM, KNOX FACED
PROSECUTION UNDER 26 U.S.C. 7203 FOR FAILURE TO FILE THE FORM, DESPITE
CLAIMS OF SELF-INCRIMINATION.  THE GOVERNMENT'S REQUIREMENT TO FILE THE
WAGERING FORM WAS UNCONDITIONAL.  THE MAJORITY ARGUES THAT BY THE TERMS
OF MARCHETTI THE GOVER,MENT IS NOT PROHIBITED FROM REQUESTING THE FORM,
BUT IS ONLY PROHIBITED FROM PROSECUTING AN INDIVIDUAL FOR HIS FAILURE
TO COMPLY WITH THE REQUEST.  ANTE, AT 80, N. 3.  THE QUESTION IN THIS
CASE, HOWEVER, IS NOT WHETHER THE GOVERNMENT HAS THE POWER TO REQUEST
THE FORM TO BE FILED, BUT WHETHER IT HAS THE POWER TO REQUIRE THE FORM
TO BE FILED.  IF KNOX HAD MERELY BEEN REQUESTED TO FILE THE FORM AND,
WITH FULL KNOWLEDGE OF HIS RIGHT TO SILENCE UNDER THE FIFTH AMENDMENT,
HAD DONE SO VOLUNTARILY, WE WOULD HAVE QUITE A DIFFERENT CASE.  THAT IS
NOT THIS CASE.  UNDER THE SCHEME THEN IN EFFECT, THE GOVERNMENT
DEMANDED UNCONDITIONALLY THAT KNOX FILE THE FORM, REGARDLESS OF THE
FACT THAT IT WOULD INCRIMINATE HIM.  HEAVY PENALTIES WERE PLACED ON A
FAILURE TO FILE THE FORM. 

MARCHETTI AND GROSSO HELD THAT THOSE IN KNOX'S POSITION HAVE THE
FIFTH AMENDMENT RIGHT TO REMAIN SILENT IRRESPECTIVE OF THE STATUTORY
COMMAND THAT THEY SUBMIT FORMS WHICH COULD INCRIMINATE THEM.  HAD KNOX
ASSERTED HIS RIGHT OF SILENCE UNDER THE FIFTH AMENDMENT, IT IS CLEAR
THAT THE INTERNAL REVENUE SERVICE COULD NOT, CONSISTENTLY WITH
MARCHETTI AND GROSSO, HAVE REQUIRED HIM TO FILE THE WAGERING FORM.  /1/
THUS ANY ARGUMENT THAT THE INTERNAL REVENUE SERVICE DID HAVE
"JURISDICTION" TO REQUIRE THE FORM TO BE FILED IN THIS CASE WOULD HAVE
TO REST ON A THEORY THAT KNOX HAD "WAIVED" HIS FIFTH AMENDMENT RIGHT BY
NOT ASSERTING IT IN LIEU OF FILING THE FORM.  A SIMILAR CLAIM WAS MADE
IN GROSSO, WHERE THE PETITIONER HAD NOT ASSERTED HIS FIFTH AMENDMENT
RIGHT AS TO CERTAIN COUNTS CONCERNING HIS FAILURE TO PAY THE SPECIAL
OCCUPATIONAL TAX IMPOSED BY 26 U.S.C. 4411.  THE COURT THERE SAID: 

     "GIVEN THE DECISIONS OF THIS COURT IN KAHRIGER AND LEWIS,

  SUPRA, WHICH WERE ON THE BOOKS AT THE TIME OF PETITIONER'S TRIAL,

  AND LEFT UNTOUCHED BY ALBERTSON V. SACB (382 U.S. 70), WE ARE

  UNABLE TO VIEW HIS FAILURE TO PRESENT THIS ISSUE AS AN EFFECTIVE

WAIVER OF THE CONSTITUTIONAL PRIVILEGE."  390 U.S.,AT 71. 

THAT REASONING IS EQUALLY APPLICABLE HERE, FOR KAHRIGER AND LEWIS WERE
STILL ON THE BOOKS AT THE TIME KNOX FILED HIS FORM.  AND SEE LEARY V.
UNITED STATES, 395 U.S. 6, 27-29. 

FOR THE REASONS STATED IN MY DISSENT IN BRYSON, ANTE, P. 73, AND IN
MR. JUSTICE BLACK'S SEPARATE OPINION IN DENNIS V. UNITED STATES, 384
U.S. 855, 875, IF THE INTERNAL REVENUE SERVICE HAD NO CONSTITUTIONAL
AUTHORITY TO REQUIRE KNOX TO FILE ANY WAGERING FORM AT ALL, HIS FILING
OF A FORM WHICH INCLUDED FALSE INFORMATION IN NO WAY PREJUDICED THE
GOVERNMENT AND IS NOT, IN MY VIEW, A MATTER "WITHIN THE JURISDICTION"
OF THE INTERNAL REVENUE SERVICE. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  AS THE MAJORITY OPINION STATES:  "NOTHING BEFORE US INDICATES
THAT THE HAZARD OF INCRIMINATION FACED BY KNOX WAS LESS SUBSTANTIAL
THAN THAT FACED BY MARCHETTI, OR THAT KNOX WOULD HAVE BEEN DISQUALIFIED
FOR ANY OTHER REASON FROM ASSERTING THE PRIVILEGE . . . ." 

ANTE, AT 83 N. 6. 

MERVYN HAMBURG ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM ON
THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, FRANCIS X. BEYTAGH, JR., AND BEATRICE ROSENBERG. 

J. EDWIN SMITH ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 
..END :


















MINOR V. UNITED STATES, 396 U.S. 87 


       MINOR V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT

        NO. 189.  ARGUED OCTOBER 15, 1969-- DECIDED DECEMBER 8,
1969

            /0/ 


PETITIONER IN NO. 189 WAS CONVICTED OF SELLING HEROIN TO AN
UNDERCOVER AGENT NOT PURSUANT TO A WRITTEN ORDER ON AN OFFICIAL FORM,
IN VIOLATION OF SEC. 2 OF THE HARRISON NARCOTICS ACT, 26 U.S.C.
4705(A).  IN NO. 271, PETITIONER WAS CONVICTED OF SELLING MARIHUANA TO
AN AGENT WHO DID NOT HAVE THE OFFICIAL ORDER FORM REQUIRED BY SEC. 6 OF
THE MARIHUANA TAX ACT, 26 U.S.C. 4742(A).  THE COURT OF APPEALS
AFFIRMED BOTH CONVICTIONS OVER OBJECTIONS THAT THE STATUTORY OBLIGATION
TO SELL ONLY PURSUANT TO AN OFFICIAL ORDER FORM VIOLATED PETITIONERS'
FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.  HELD: 

1.  WITH RESPECT TO THE MARIHUANA TAX ACT, THE PETITIONER SELLER'S
CLAIM OF VIOLATION OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT
SUBSTANTIAL.  PP. 91-94. 

(A) THERE IS NO REAL POSSIBILITY THAT PURCHASERS WOULD COMPLY WITH
THE ORDER FORM REQUIREMENT EVEN IF THE SELLER INSISTED ON SELLING ONLY
PURSUANT TO THE PRESCRIBED FORM, IN VIEW OF THE $100 PER OUNCE TAX ON
AN UNREGISTER TRANSFEREE; THE ILLEGALITY UNDER FEDERAL AND STATE LAW;
AND THE FACT THAT THE FIFTH AMENDMENT, AS HELD IN LEARY V. UNITED
STATES, 395 U.S. 6, RELIEVES UNREGISTERED BUYERS OF ANY DUTY TO PAY THE
TAX AND SECURE THE ORDER FORM.  P. 92. 

(B) IN LEARY, SUPRA, THE STATUTE PURPORTED TO MAKE ALL MARIHUANA
PURCHASES LEGAL FROM THE BUYER'S VIEWPOINT AT HIS OPTION; BUT TO
EXERCISE THAT OPTION AND AVOID THE FEDERAL PENALTY, HE WAS FORCED TO
INCRIMINATE HIMSELF UNDER OTHER LAWS.  HERE, COMPLIANCE BY SELLING IS
FORECLOSED AS A VIABLE OPTION, NOT BECAUSE THE SELLER MIGHT INCRIMINATE
HIMSELF, BUT BECAUSE HE WILL SELDOM, IF EVER, ENCOUNTER AN UNREGISTERED
PURCHASER WILLING AND ABLE TO SECURE THE ORDER FORM.  IN SUCH A CASE,
"FULL AND LITERAL" COMPLIANCE BY THE SELLER WITH SEC. 4742(A) MEANS
SIMPLY THAT HE CANNOT SELL AT ALL.  PP. 92-93. 

(C) THAT THERE IS A SMALL NUMBER OF REGISTERED MARIHUANA DEALERS
DOES NOT CHANGE THIS RESULT, SINCE PETITIONER'S CUSTOMER WAS NOT A
REGISTERED DEALER, AND IT IS UNLIKELY THAT EVEN A REGISTERED DEALER
WOULD PRESENT AN ORDER FORM TO AN UNREGISTERED SELLER.  PP. 93-94. 

2.  PETITIONER SELLER'S SELF-INCRIMINATION CLAIM UNDER THEHARRISON
NARCOTICS ACT IS LIKEWISE INSUBSTANTIAL.  PP. 94-98. 

(A) PETITIONER'S ARGUMENT WHICH ASSUMES THAT AN ORDER FORM WOULD BE
FORTHCOMING IF HE REFUSED TO SELL WITHOUT IT, IS UNREALISTIC, THERE
BEING NO SUBSTANTIAL POSSIBILITY THAT A BUYER COULD HAVE SECURED AN
ORDER FORM TO OBTAIN HEROIN, VIRTUALLY ALL DEALINGS IN WHICH ARE
ILLICIT.  PP. 96-97. 

(B) SINCE PETITIONER'S CUSTOMER WAS NOT A REGISTERED BUYER, THE
ALLEGED POSSIBILITY OF INCRIMINATION IS PURELY HYPOTHETICAL.  P. 97. 

(C) EVEN IF PETITIONER'S CUSTOMER WERE REGISTERED, THE RESULT WOULD
PROBABLY BE THE SAME, SINCE IT IS UNLIKELY THAT A REGISTERED DEALER
WOULD ENTER THE NAME OF AN UNREGISTERED SELLER ON THE ORDER FORM AND
RECORD WHAT WOULD SURELY BE AN ILLEGAL SALE.  PP. 97-98. 

NO. 189, 398 F.2D 511, AND NO. 271, 407 F.2D 905, AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THESE CASES RAISE RELATED QUESTIONS ABOUT THE AVAILABILITY OF THE
FIFTH AMENDMENT AS A DEFENSE TO CONVICTIONS FOR SELLING NARCOTIC DRUGS
AND MARIHUANA WITHOUT THE WRITTEN ORDER FORMS REQUIRED BY LAW. 

JAMES MINOR, PETITIONER IN NO. 189, SOLD HEROIN ON TWO SEPARATE
OCCASIONS IN 1967 TO AN UNDERCOVER NARCOTICS AGENT.  HAVING WAIVED
TRIAL BY JURY, PETITIONER WAS CONVICTED IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OF SELLING NARCOTICS NOT
PURSUANT TO A WRITTEN ORDER ON AN OFFICIAL FORM-- A VIOLATION OF SEC. 2
OF THE HARRISON NARCOTICS ACT, NOW 26 U.S.C. 4705(A).  /1/ 

MICHAEL BUIE, PETITIONER IN NO. 271, SOLD FIVE PACKAGES OF MARIHUANA
IN MAY 1967 TO AN UNDERCOVER NARCOTICS AGENT.  THE AGENT DID NOT HAVE
THE OFFICIAL ORDER FORM REQUIRED FOR SUCH TRANSACTIONS BY SEC. 6 OF THE
MARIHUANA TAX ACT, NOW 26 U.S.C. 4742(A).  /2/  A JURY IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CONVICTED
PETITIONER OF VIOLATING SEC. 4742(A). 

IN SEPARATE OPINIONS, THE COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMED BOTH CONVICTIONS OVER OBJECTIO;S IN EACH CASE THAT THE
STATUTORY OBLIGATION TO SELL ONLY IN PURSUANCE OF AN OFFICIAL ORDER
FORM VIOLATED PETITIONER'S FIFTH AMENDMENT PRIVILEGE AGAINST SELF
INCRIMINATION.  UNITED STATES V. MINOR, 398 F.2D 511 (1968); UNITED
STATES V. BUIE, 407 F.2D 905 (1969).  WE GRANTED CERTIORARI, 395 U.S.
932 AND 976, TO CONSIDER PETITIONERS' FIFTH AMENDMENT CLAIMS,
PARTICULARLY IN LIGHT OF OUR INTERVENING DECISION IN LEARY V. UNITED
STATES, 395 U.S. 6 (1969).  FOR THE REASONS THAT FOLLOW, WE AFFIRM THE
JUDGMENTS IN BOTH CASES. 

WE DEAL FIRST WITH NO. 271.  UNDER PERTINENT PROVISIONS OF THE
MARIHUANA TAX ACT, 26 U.S.C. 4751-4753, EVERY PERSON WHO SELLS, DEALS
IN, DISPENSES, OR GIVES AWAY MARIHUANA MUST REGISTER WITH THE INTERNAL
REVENUE SERVICE AND PAY A PSECIAL OCCUPATIONAL TAX.  THE ACT ALSO
IMPOSES A TAX ON TRANSFERS OF MARIHUANA, TO BE PAID BY THE TRANSFEREE;
THE RATE FOR THOSE WHO HAVE REGISTERED AND PAID THE OCCUPATIONAL TAX IS
$1 PER OUNCE; FOR THOSE WHO HAVE NOT OR WHO CANNOT REGISTER THE RATE IS
$100 PER OUNCE.  UNDER SEC. 4742(A) IT IS ILLEGAL TO TRANSFER MARIHUANA
EXCEPT PURSUANT TO A WRITTEN ORDER OF THE TRANSFEREE ON A FORM OBTAINED
BY THE LATTER AT THE TIME HE PAYS THE TRANSFER TAX.  THE ORDER FORM
WHEN ISSUED MUST CARRY THE NAME AND ADDRESS OF BOTH BUYER AND SELLER
AND THE AMOUNT OF MARIHUANA TO BE PURCHASED.  26 U.S.C. 4742(C).  OTHER
PROVISIONS OF SEC. 4742 REQUIRE THE FORM TO BE ISSUED IN TRIPLICATE,
ONE COPY TO BE RETAINED BY THE INTERNAL REVENUE SERVICE, THE OTHER COPY
TO BE KEPT IN THE BUYER'S FILES, AND THE ORIGINAL TO BE DELIVERED TO
THE SELLER AND RETAINED BY HIM.  26 U.S.C. 4742(D).  BOTH ORIGINAL AND
COPIES ARE OPEN TO INSPECTION BY FEDERAL AND STATE LAW ENFORCEMENT
OFFICERS.  26 U.S.C. 4742(D), 4773. 

BUIE ARGUES THAT BECAUSE THE BUYER'S ORDER MUST BE ON THE FORM
ISSUED BY THE SECRETARY OF THE TREASURY AND BECAUSE SEC. 4742(C)
REQUIRES THE SELLER'S NAME AND ADDRESS TO BE ON THE FORM BEFORE ITS
ISSUANCE TO THE BUYER, THE SELLER IS FORCED TO INCRIMINATE HIMSELF:  HE
IS FORCED TO INSIST ON AN ORDER FORM LINKING HIM TO AN ILLICIT
TRANSACTION AND IN MANY INSTANCES MUST FURNISH ONE OF THOSE LINKS
HIMSELF BY GIVING HIS NAME TO BUYER SO THAT THE LATTER WILL HAVE THE
DATA NECESSARY TO SECURE THE FORM.  MOREOVER, IT IS SAID THAT THE VERY
ACT OF SELLING PURSUANT TO THE ORDER FORM FORCES THE SELLER TO ADMIT
THAT HE IS THE PERSON NAMED IN THE DOCUMENT AND TO ACKNOWLEDGE THE SALE
OF SPECIFIED AMOUNTS OF MARIHUANA ON A SPECIFIED DATE; THE SALE ALSO
LEADS TO THE FURTHER REQUIREMENT THAT BOTH SELLER AND BUYER RETAIN A
COPY OF THE FORM OPEN TO INSPECTION BY LAW ENFORCEMENT OFFICIALS. 

WE HAVE CONSIDERABLE DOUBT THAT ANY OF THESE ARGUMENTS WOULD
WITHSTAND CLOSE SCRUTINY, /3/ BUT WE FIND IT UNNECESSARY TO APPRAISE
THEM IN DETAIL BECAUSE WE HAVE CONCLUDED THAT THERE IS NO REAL AND
SUBSTANTIAL POSSIBILITY THAT BUIE'S PURCHASER, OR PURCHASERS GENERALLY,
WOULD BE WILLING TO COMPLY WITH THE ORDER FORM REQUIREMENT EVEN IF
THEIR SELLER INSISTED ON SELLING ONLY PURSUANT TO THE FORM PRESCRIBED
BY LAW. 

THIS SITUATION OF THE BUYER IS THIS:  IF HE APPLIES FOR THE ORDER
FORM HE MUST ANNOUNCE HIS INTENTION TO PURCHASE MARIHUANA-- A
TRANSACTION THAT, IF HE IS UNREGISTERED, WILL INVOLVE A TAX OF $100 FOR
EACH OUNCE OF MARIHUANA INVOLVED IN THE IMPENDING SALE AND THAT IS
ILLEGAL UNDER BOTH FEDERAL AND STATE LAW.  WE HAVE GREAT DIFFICULTY IN
BELIEVING, AND NOTHING IN THIS RECORD CONVINCES US, THAT ONE WHO WISHES
TO PURCHASE MARIHUANA WILL COMPLY WITH A SELLER'S REQUEST THAT HE
INCRIMINATE HIMSELF WITH FEDERAL AND LOCAL AUTHORITIES AND PAY $100 PER
OUNCE IN TAXES IN ORDER TO SECURE THE ORDER FORM.  THE POSSIBILITY IS
PARTICULARLY UNLIKELY IN VIEW OF THE FACT THAT THE FIFTH AMENDMENT
RELIEVES UNREGISTERED BUYERS OF ANY DUTY TO PAY THE TRANSFER TAX AND
SECURE THE INCRIMINATING ORDER FORM.  LEARY V. UNITED STATES, 395 U.S.
6 (1969).  EXCEPT THAT THEY ARE SOURCES OF MARIHUANA, SELLERS HAVE NO
MAGIC POWER OVER BUYERS; AND THE CHARACTERISTICS OF MARIHUANA DO NOT
SUGGEST THAT BUYERS WOULD BE DRIVEN BY SUCH URGENT NEED THAT TO GET THE
DRUG THEY WOULD INCRIMINATE THEMSELVES AT THE SELLER'S BEHEST AND PAY
THE PROHIBITIVE TAX IMPOSED ON THE TRANSFER.  AS INSISTENT AS SELLERS
MIGHT BE, IT IS EXTREMELY UNLIKELY THAT BUYERS WOULD COMPLY. 

BUIE'S SITUATION THUS BEARS LITTLE RESEMBLANCE TO THE SITUATION THAT
CONFRONTED LEARY.  THE VICE OF THE STATUTE IN THAT CASE-- AS IN
MARCHETTI V. UNITED STATES, 390 U.S. 39, GROSSO V. UNITED STATES, 390
U.S. 62, AND HAYNES V. UNITED STATES, 390 U.S. 85 (1968)-- STEMMED FROM
THE DILEMMA THAT CONFRONTED THE BUYER.  THE STATUTE PURPORTED TO MAKE
ALL PURCHASES OF MARIHUANA LEGAL FROM THE BUYER'S VIEWPOINT AT HIS
OPTION; ALL HE HAD TO DO TO AVOID THE FEDERAL PENALTY WAS TO SECURE THE
FORM AND PAY THE TAX.  BUT TO EXERCISE THAT OPTION AND AVOID THE
FEDERAL PENALTY, HE WAS FORCED TO INCRIMINATE HIMSELF UNDER OTHER
LAWS.  IN THE PRESENT CASE, THE FIRST HORN OF THIS DILEMMA DOES NOT
CONFRONT THE SELLER.  IN THE FACE OF A BUYER'S REFUSAL TO SECURE THE
ORDER FORM, THE OPTION OF MAKING A LEGAL SALE UNDER FEDERAL LAW IS
FORECLOSED BY THE BUYER'S DECISION, AND "FULL AND LITERAL COMPLIANCE"
WITH THE LAW BY THE SELLER MEANS SIMPLY THAT HE CANNOT SELL AT ALL. 
/4/ 

THERE IS NO REAL AND SUBSTANTIAL POSSIBILITY THAT THE SEC. 4742(A)
ORDER FORM REQUIREMENT WILL IN ANY WAY INCRIMINATE SELLERS FOR THE
SIMPLE REASON THAT SELLERS WILL SELDOM, IF EVER, BE CONFRONTED WITH AN
UNREGISTERED PURCHASER WHO IS WILLING AND ABLE TO SECURE THE ORDER
FORM. 

THIS CONCLUSION IS NOT AFFECTED BY THE FACT THAT THERE IS A TINY
NUMBER OF REGISTERED MARIHUANA DEALERS-- SOME 83 IN THE ENTIRE COUNTRY
ACCORDING TO GOVERNMENT FIGURES FOR 1967.  /5/  IN ORDER TO REGISTER,
DEALERS MUST SHOW THAT THEY ARE IN COMPLIANCE WITH LOCAL LAWS /6/  AND,
WHEN REGISTERED, CAN GET ORDER FORMS BY PAYING A TRANSFER TAX OF ONLY
$1 PER OUNCE.  A REGISTERED DEALER IS THUS NOT SUBJECT TO THE DETERRENT
PRESSURES OPERATING ON THE UNREGISTERED DEALER.  BUT THE POSSIBILITY
THAT A REGISTERED DEALER WOULD PRESENT AN ORDER FORM TO AN UNREGISTERED
SELLER LIKE BUIE IS ITSELF A HYPOTHESIS MORE IMAGINARY THAN REAL; ANY
BUYER WHO CAN PURCHASE MARIHUANA FROM A LEGITIMATE SOURCE IS HARDLY
LIKELY TO FIND IT TO HIS ADVANTAGE TO SECURE THE DRUG INSTEAD ON THE
ILLEGAL MARKET.  IN ANY EVENT, IT IS QUITE CLEAR IN THIS CASE THAT
BUIE'S CUSTOMER WAS NOT A REGISTERED DEALER.  NOR IS THERE ANYTHING TO
SUGGEST THAT HE WOULD HAVE BEEN WILLING OR ABLE TO GET AN ORDER FORM
HAD HE BEEN ASKED. 

NO. 189.  THE SAME RESULT MUST FOLLOW IN MINOR'S CASE AND FOR
SIMILAR REASONS.  THE HARRISON NARCOTICS ACT, 26 U.S.C. 4701 ET SEQ.,
APPLIES TO VARIOUS DRUGS, INCLUDING HERION.  DEALERS MUST REGISTER AND
PAY AN OCCUPATIONAL TAX, 26 U.S.C. 4721-4722; PRODUCERS OR IMPORTERS
WHO SELL MUST PURCHASE STAMPS AND AFFIX THEM TO THE PACKAGE, 26 U.S.C.
4701, 4703, 4771(A)(1); AND IT IS ILLEGAL TO PURCHASE OR SELL EXCEPT
FROM THE ORIGINAL STAMPED PACKAGE, 26 U.S.C. 4704(A).  AS IN THE CASE
OF THE MARIHUANA TAX ACT, ALL TRANSFERS, WITH EXCEPTIONS NOT RELEVANT
HERE, MUST BE MADE PURSUANT TO A WRITTEN ORDER FORM ISSUED BY THE
GOVERNMENT.  26 U.S.C. 4705(A).  ONLY DEALERS WHO ARE IN COMPLIANCE
WITH STATE LAW MAY REGISTER, AND ONLY REGISTERED DEALERS MAY SECURE
ORDER FORMS.  26 U.S.C. 4705(F),(G); SEE 26 U.S.C. 4721; 26 CFR
151.24.  ORDER FORMS ARE ISSUED IN TRIPLICATE TO PROPER APPLICANTS AND
ARE STAMPED ONLY WITH THE NAME OF THE PROSPECTIVE PURCHASER.  26 U.S.C.
4705(F); 26 CFR 151.161.  WHEN A PURCHASER DECIDES TO EXECUTE A FORM,
HE FILLS IN THE EXACT DATE OF THE ORDER AND THE NUMBER AND TYPE OF
DRUGS REQUESTED AND SIGNS HIS NAME TO THE FORM.  26 CFR 151.163
151.165, 151.167.  THE PURCHASER RETAINS THE DUPLICATE AND DELIVERS THE
ORIGINAL AND THE TRIPLICATE THUS EXECUTED TO THE SELLER, WHO ENTERS THE
NUMBER AND SIZE OF THE STAMPED PACKAGES FURNISHED AND THE DATE WHEN
EACH ITEM IS FILLED.  26 CFR 151.161(A), 151.185.  A REGULATION, 26 CFR
151.201, REQUIRES THE SELLER TO FORWARD THE TRIPLICATE TO THE INTERNAL
REVENUE SERVICE AT THE END OF THE MONTH.  SECTION 4705(D) OF THE ACT
REQUIRES BOTH SELLER AND BUYER TO KEEP THEIR RESPECTIVE COPIES FOR A
PERIOD OF TWO YEARS AND TO MAKE THEN ACCESSIBLE TO INSPECTION BY LAW
ENFORCEMENT OFFICERS. 

THE ORDER FORM PROVISIONS FOR NARCOTIC DRUGS THUS DIFFER FROM THE
MARIHUANA PROVISIONS IN THREE PRINCIPAL RESPECTS.  FIRST, THE
PROSPECTIVE SELLER'S NAME DOES NOT HAVE TO BE GIVEN TO THE GOVERNMENT
WHEN THE ORDER FORM IS SECURED, BUT IS FILLED IN ONLY WHEN THE FORM IS
SUBSEQUENTLY EXECUTED.  /7/  SECOND, ALTHOUGH THE MARIHUANA SELLER
APPARENTLY DOES NOT HAVE TO ADD ANYTHING TO THE ORDER FORM IN MAKING
THE SALE, THE SELLER OF NARCOTICS MUST ENTER THE AMOUNTS SOLD AND THE
DATES.  FINALLY, UNLIKE THE MARIHUANA TAX ACT, WHICH AT LEAST IN THEORY
PERMITS ANY PERSON TO BUY AS LONG AS THE TRANSFER TAX IS PAID, THE
HARRISON NARCOTICS ACT EXPLICITLY FORBIDS THE SALE OF ORDER FORMS TO
ANY BUT REGISTERED DEALERS AND PERMITS REGISTRATION ONLY BY THOSE
"LAWFULLY ENTITLED" UNDER THE LAWS OF THEIR STATE TO DEAL IN THE DRUG. 
/8/ 

LIKE BUIE, MINOR ARGUES THAT COMPLIANCE WITH THE ORDER FORM
PROVISION WOULD COMPEL HIM TO GIVE INCRIMINATING INFORMATION TO BE
PRESERVED IN HIS AND THE BUYER'S FILES AND TO BE MADE READILY
ACCESSIBLE TO LAW ENFORCEMENT AGENTS.  LIKE BUIE'S ARGUMENT, MINOR'S
ARGUMENT ASSUMES THAT AN ORDER FORM WOULD OTHERWISE BE FORTHCOMING IF
HE REFUSED TO SELL WITHOUT IT /9/  AND FOUNDERS IF IN REALITY THERE IS
NO SUBSTANTIAL POSSIBILITY THAT THE BUYER WOULD OR COULD HAVE SECURED
AN ORDER FORM.  AS IN BUIE'S CASE, WE ARE CONVINCED THAT THIS
POSSIBILITY IS AN UNREAL ONE.  PROSPECTIVE BUYERS WHO HAVE EITHER
FAILED TO REGISTER OR CANNOT REGISTER BECAUSE THEIR DEALINGS IN THE
DRUG ARE ILLICIT-- AND PETITIONER HIMSELF STRENUOUSLY ARGUES THAT
VIRTUALLY ALL DEALINGS IN HEROIN ARE ILLICIT /10/ -- SIMPLY ARE NOT
AMONG THE CLASS OF PERSONS TO WHOM SELLERS ARE PERMITTED TO SELL UNDER
ANY CONDITION.  WHEN DEALING WITH BUYERS IN THIS CLASS, THE SELLER
FACES NO RISK OF INCRIMINATION BY REASON OF SEC. 4705(A) SINCE THERE
WILL BE AND CAN BE NO ORDER FORM INVOLVED.  CONFRONTED WITH WOULD-BE
BUYERS IN THIS CLASS, "FULL AND LITERAL COMPLIANCE" WITH SEC. 4705(A)
LEAVES THE SELLER ONLY ONE ALTERNATIVE:  NOT TO SELL.  SINCE FROM THIS
RECORD IT IS CLEAR THAT MINOR'S CUSTOMER WAS NOT A REGISTERED BUYER,
THE ALLEGED POSSIBILITY OF INCRIMINATION IS PURELY HYPOTHETICAL. 

WE DOUBT THAT OUR CONCLUSION WOULD BE DIFFERENT EVEN IF MINOR'S
CUSTOMER WERE REGISTERED.  IT IS TRUE THAT THERE WERE SOME 400,000
REGISTERED DEALERS UNDER THE HARRISON NARCOTICS ACT IN 1967 /11/  AND
THAT REGISTERED DEALERS CAN READILY GET ORDER FORMS ISSUED IN BLANK. 
IT IS CONCEIVABLE, OF COURSE, THAT A REGISTERED DEALER WOULD SEEK TO
BUY HEROIN ON THE ILLEGAL MARKET, BUT IT IS DIFFICULT TO IMAGINE THAT
HE WOULD ENTER THE NAME OF AN UNREGISTERED SELLER ON THE ORDER FORM AND
MAKE A RECORD OF WHAT WOULD SURELY BE AN ILLEGAL SALE.  /12/  SUCH
UNLIKELY POSSIBILITIES PRESENT ONLY "IMAGINARY AND INSUBSTANTIAL"
HAZARDS OF INCRIMINATION, RATHER THAN THE "REAL AND APPRECIABLE" RISKS
NEEDED TO SUPPORT A FIFTH AMENDMENT CLAIM.  /13/ 

THE JUDGMENTS IN BOTH CASES ARE AFFIRMED. 

              IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 271, BUIE V. UNITED STATES, ALSO ON
CERTIORARI TO THE SAME COURT. 

/1/  SECTION 4705(A) PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO SELL, BARTER, EXCHANGE, OR
GIVE AWAY NARCOTIC DRUGS EXCEPT IN PURSUANCE OF A WRITTEN ORDER OF THE
PERSON TO WHOM SUCH ARTICLE IS SOLD, BARTERED, EXCHANGED, OR GIVEN, ON
A FORM TO BE ISSUED IN BLANK FOR THAT PURPOSE BY THE SECRETARY OR HIS
DELEGATE." 

/2/  SECTION 4742(A) PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON . . . TO TRANSFER MARIHUANA,
EXCEPT IN PURSUANCE OF A WRITTEN ORDER OF THE PERSON TO WHOM SUCH
MARIHUANA IS TRANSFERRED, ON A FORM TO BE ISSUED IN BLANK FOR THAT
PURPOSE BY THE SECRETARY OR HIS DELEGATE."  UNDER 26 U.S.C. 7237(B),
ANY PERSON WHO VIOLATES THE PROVISIONS OF SECS. 4705(A) OR 4742(A)
"SHALL BE IMPRISONED NOT LESS THAN 5 OR MORE THAN 20 YEARS AND, IN
ADDITION, MAY BE FINED NOT MORE THAN $20,000."     /3/  THE OBLIGATION
TO FURNISH THE NECESSARY INFORMATION IS IN TERMS PLACED ON THE BUYER;
WHILE HIS COMPLIANCE WITH THAT OBLIGATION MAY "INFORM" ON THE SELLER,
IT WOULD NOT ORDINARILY BE THOUGHT TO RESULT IN THE LATTER'S "SELF
INCRIMINATION."  NOR IS THERE ANYTHING IN THE RECORD TO SUGGEST THAT
BUYERS CANNOT GET A SELLER'S NAME EXCEPT THROUGH THE SELLER HIMSELF, OR
THAT THE SIMPLE ACT OF SELLING PURSUANT TO AN ORDER FORM-- EVEN
ASSUMING THE ACT IS "TESTIMONIAL" FOR PURPOSES OF THE FIFTH AMENDMENT--
ADDS SIGNIFICANTLY TO THE INFORMATION THAT THE GOVERNMENT HAS ALREADY
OBTAINED FROM THE BUYER.  FINALLY, WHATEVER THE MERITS OF A SELLER'S
ATTEMPT TO ASSERT THE PRIVILEGE IN A PROSECUTION FOR FAILURE TO KEEP
AND EXHIBIT THE ORDER FORMS, IT NEED NOT FOLLOW THAT HE CAN SIMILARLY
DISPENSE WITH THE REQUIREMENT THAT HE SELL ONLY TO BUYERS WHO FIRST
IDENTIFY THEMSELVES, VIA THE ORDER FORM, AS LAWFUL PURCHASERS.  CF.
NIGRO V. UNITED STATES, 276 U.S. 332, 351 (1928); UNITED STATES V.
DOREMUS, 249 U.S. 86, 94 (1919). 

/4/  IT WOULD HAVE BEEN NO ANSWER IN LEARY TO SUGGEST THAT THE BUYER
AVOID HIS DILEMMA BY NOT BUYING.  SEE MARCHETTI V. UNITED STATES, 390
U.S. 39, 51-52.  BUT THE BUYER IN LEARY, UNLIKE THE SELLER HERE, WAS
PRESENTED WITH THE POSSIBILITY OF BOTH PURCHASING AND COMPLYING WITH
THE FEDERAL LAW, IF HE WOULD ONLY INCRIMINATE HIMSELF.  IN THE PRESENT
CASE, COMPLIANCE BY SELLING IS FORECLOSED AS A VIABLE OPTION, NOT
BECAUSE THE SELLER MIGHT INCRIMINATE HIMSELF, BUT BECAUSE THE BUYER
REFUSES TO MEET A SPECIFIED CONDITION.  NOTHING IN THE FIFTH AMENDMENT
PREVENTS CONGRESS FROM RESTRICTING A SELLER'S MARKET TO SPECIFIED
CLASSES OF DULY LICENSED BUYERS.  AND ALTHOUGH THE BUYER'S REFUSAL TO
COMPLY WITH THE ACT'S REQUIREMENTS MAY STEM FROM HIS FEAR OF
INCRIMINATION, THE BUYER'S PERSONAL PRIVILEGE CANNOT BE RAISED BY THE
SELLER AS AN EXCUSE FOR EVADING THE CLEAR STATUTORY REQUIREMENT.  SEE
GEORGE CAMPBELL PAINTING CORP. V. REID, 392 U.S. 286 (1968); ROGERS V.
UNITED STATES, 340 U.S. 367 (1951). 

/5/  U.S. TREASURY DEPARTMENT, BUREAU OF NARCOTICS, TRAFFIC IN OPIUM
AND OTHER DANGEROUS DRUGS 42 (1968). 

/6/  THE REGULATIONS, 26 CFR 152.22, 152.23, WHICH LIMITS
REGISTRATION TO PERSONS WHOSE DEALINGS ARE LEGAL UNDER RELEVANT STATE
AND LOCAL LAWS, ARE SUPPORTED BY THE LEGISLATIVE HISTORY AND REPRESENT
WHAT IS BY NOW LONG-ESTABLISHED ADMINISTRATIVE PRACTICE.  SEE LEARY V.
UNITED STATES, 395 U.S. 6, 24 N. 38 (1969); H.R. REP. NO. 792, 75TH
CONG., 1ST SESS., 2 (1937); S. REP. NO. 900, 75TH CONG., 1ST SESS., 3
(1937); HEARINGS ON H.R. 6906 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON FINANCE, 75TH CONG., 1ST SESS., 6 (1937); HEARINGS ON H.R.
6385 BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 75TH CONG., 1ST
SESS., 8 (1937). 

/7/  IT IS NOT SPECIFIED IN EITHER THE STATUTE OR THE REGULATIONS
WHEN THE BLANK FOR THE SELLER'S NAME IS FILLED IN OR BY WHOM.  BUT THE
FORM ITSELF IS ADDRESSED "TO" TO SELLER, AND THE FORM AND THE
REGULATIONS CONTAIN PROVISIONS THAT ENABLE A FORM "MADE OUT TO" ONE
SELLER, TO BE ENDORSED BY HIM TO ANOTHER IF THE FIRST SELLER CANNOT
FILL THE ORDER.  SEE 26 CFR 151.189.  THIS SUGGESTS THAT IT IS THE
BUYER WHO FILLS IN THE SELLER'S NAME WHEN HE SENDS IN THE ORDER. 
WHETHER OR NOT THAT IS THE CASE IS IRRELEVANT UNDER THE ANALYSIS IN THE
TEXT. 

/8/  THE DIFFERENCE BETWEEN THE AVAILABILITY OF ORDER FORMS UNDER
THE HARRISON NARCOTICS ACT AND THE MARIHUANA TAX ACT WAS EXPLICITLY
RECOGNIZED BY CONGRESS WHEN IT PASSED THE LATTER ACT.  SEE LEARY V.
UNITED STATES, 395 U.S. 6, 21-22 (1969).  THE REGULATION RESTRICTING
REGISTRATION TO THOSE "LAWFULLY ENTITLED, TO DEAL IN NARCOTIC DRUGS, 26
CFR 151.24, FINDS SPECIFIC SUPPORT IN THE LANGUAGE OF THE ACT.  SEE 26
U.S.C. 4705(G), 4721. 

/9/  EVEN IF ORDER FORMS COULD REALISTICALLY BE SECURED, MINOR'S
FIFTH AMENDMENT ARGUMENTS ARE NO MORE PERSUASIVE THAN BUIE'S.  SEE N.
3, SUPRA. 

/10/  SEE BRIEF FOR PETITIONER 22-23.  CONVINCED THAT "(HEROIN HAS
NO MEDICAL VALUE THAT IS NOT BETTER SERVED BY LEGITIMATE DRUGS,"  S.
REP. NO. 1997, 84TH CONG., 2D SESS., 7 (1956), CONGRESS IN 1956
REQUIRED THE SURRENDER OF ALL THERETOFORE LAWFULLY POSSESSED HEROIN, TO
BE DISTRIBUTED ONLY AS APPROVED BY THE SECRETARY FOR PURPOSES OF
SCIENTIFIC RESEARCH.  18 U.S.C. 1402.  THE NARCOTIC DRUGS IMPORT AND
EXPORT ACT, 35 STAT. 614, AS AMENDED, 21 U.S.C. 173, 174, EFFECTIVELY
PROHIBITS THE IMPORTATION OF HEROIN OR OF OPIUM FOR THE PURPOSE OF
MANUFACTURING HEROIN, AND MAKES IT A FELONY TO TRAFFIC IN DRUGS KNOWING
THEM TO HAVE BEEN UNLAWFULLY IMPORTED.  THE NARCOTICS MANUFACTURING ACT
OF 1960, 74 STAT 55, 21 U.S.C. 501 ET SEQ., PROHIBITS THE MANUFACTURING
OF HEROIN EXCEPT AS AUTHORIZED FOR LIMITED SCIENTIFIC PURPOSES.  GIVEN
THE RESULTING ABSENCE OF ORIGINAL STAMPED PACKAGES OF HEROIN, 26 U.S.C.
4704(A) EFFECTIVELY FORBIDS BUYING, SELLING, DISPENSING, OR
DISTRIBUTING THE DRUG.  SINCE FOR ALL PRACTICAL PURPOSES THERE IS THUS
NO LEGITIMATE DEALING IN HEROIN, ANY ATTEMPT TO USE AN ORDER FORM TO
PURCHASE THE DRUG WOULD ALMOST CERTAINLY SUBJECT THE BUYER TO
PROSECUTION UNDER 26 U.S.C. 4705(G): 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO OBTAIN BY MEANS OF SAID
ORDER FORMS NARCOTIC DRUGS FOR ANY PURPOSE OTHER THAN THE USE, SALE, OR
DISTRIBUTION THEREOF BY HIM IN THE CONDUCT OF A LAWFUL BUSINESS IN SAID
DRUGS OR IN THE LEGITIMATE PRACTICE OF HIS PROFESSION." 

/11/  SEE U.S. TREASURY DEPARTMENT, BUREAU OF NARCOTICS, TRAFFIC IN
OPIUM AND OTHER DANGEROUS DRUGS 22, 42 (1968). 

/12/  EVEN IF THE HYPOTHETICAL BECAME A REALITY, IT IS DOUBTFUL THAT
THE INCRIMINATING INFORMATION WOULD GET BACK TO THE GOVERNMENT VIA THE
BUYER, WHO WOULD HIMSELF BE GUILTY OF A VIOLATION OF THE NARCOTICS
LAWS.  SEE N. 10, SUPRA.  SEE ALSO 26 CFR 151.181, WHICH PROVIDES THAT
ORDER FORMS MAY BE FILLED ONLY BY REGISTERED SELLERS-- A CLASS TO WHICH
MINOR DOES NOT BELONG.  IT IS SIGNIFICANT THAT OF THE NEARLY 400,000
REGISTERED DEALERS IN 1967, ONLY FOUR WERE REPORTED DURING THAT YEAR
FOR A VIOLATION OF THE NARCOTICS LAWS.  SEE U.S. TREASURY DEPARTMENT,
BUREAU OF NARCOTICS, TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS 22
(1968). 

/13/  THEDISSENT SUGGESTS THAT THE COURTS SHOULD REFUSE TO ENFORCE
SEC. 4705(A) AS PART OF A REVENUE MEASURE.  BUT THESE VERY ORDER FORM
PROVISIONS WERE UPHELD LONG AGO AS VALID REVENUE LAWS EVEN THOUGH THEY
OPERATED TO PREVENT LARGE CLASSES OF PEOPLE FROM OBTAINING ORDER FORMS-
AND HENCE FROM ACQUIRING DRUGS-- AT ALL.  UNITED STATES V. DOREMUS,
249 U.S. 86 (1919); WEBB V. UNITED STATES, 249 U.S. 96 (1919); SEE
NIGRO V. UNITED STATES, 276 U.S. 332 (1928).  A STATUTE DOES NOT CEASE
TO BE A VALID TAX MEASURE BECAUSE IT DETERS THE ACTIVITY TAXED, BECAUSE
THE REVENUE OBTAINED IS NEGLIGIBLE, OR BECAUSE THE ACTIVITY IS
OTHERWISE ILLEGAL.  SEE, E.G., MARCHETTI V. UNITED STATES, 390 U.S. 39,
44 (1968); UNITED STATES V. KAHRIGER, 345 U.S. 22, 28 (1935); LICENSE
TAX CASES, 5 WALL.  462 (1867). 

EVEN VIEWING SEC. 4705(A) AS LITTLE MORE THAN A FLAT BAN ON CERTQIN
SALES, IT IS SUSTAINABLE UNDER THE POWERS GRANTED CONGRESS IN ART. I,
SEC. 8.  SEE YEE HEM V. UNITED STATES, 268 U.S. 178, 183 (1925). 
BROLAN V. UNITED STATES, 236 U.S. 216, 222 (1915); CF. UNITED STATES V.
SULLIVAN, 332 U.S. 689 (1948); UNITED STATES V. DARBY, 312 U.S. 100
(1941). 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT IN NO. 271. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS, DISSENTING
IN NO. 189. 

THE GUILT OF PETITIONER ON THIS RECORD SEEMS PLAIN.  TWO COUNTS
CHARGE SALES OF HEROIN ON TWO DIFFERENT DATES IN 1967 "NOT IN PURSUANCE
OF A WRITTEN ORDER . . . FORM."  HE WAS FOUND GUILTY ON EACH COUNT BY
THE DISTRICT COURT, A TRIAL BY JURY HAVING BEEN WAIVED.  THE BASIS OF
HIS ATTACK UPON HIS CONVICTION IN THIS COURT IS THAT THE REQUIREMENT OF
AN ORDER FORM VIOLATES HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  BUT
THAT IS NOT THE END OF THE MATTER FOR ME.  MR. JUSTICE HOLMES USED TO
SAY THAT ONE DEALING WITH THE GOVERNMENT SHOULD TURN SQUARE CORNERS. 
SEE ROCK ISLAND, A. & L.R. CO. V. UNITED STATES, 254 U.S. 141, 143. 
WHEN THE PRESENT ALL-POWERFUL, ALL-PERVASIVE GOVERNMENT MOVES TO
CURTAIL THE LIBERTY OF THE PERSON, IT TOO SHOULD TURN SQUARE CORNERS. 

THE STATUTE INVOLVED IN THIS CASE, 26 U.S.C. 4705(A), WAS DERIVED
FROM THE ANTI-NARCOTIC ACT OF DECEMBER 17, 1914, 38 STAT. 785, COMMONLY
CALLED THE HARRISON NARCOTICS ACT.  THIS ACT, AS AMENDED, IMPOSES AN
OCCUPATIONAL TAX ON REGISTERED DEALERS IN NARCOTICS, 26 U.S.C. 4721
4722, AND ALSO IMPOSES A COMMODITY EXCISE TAX ON NARCOTICS SOLD OR
REMOVED FOR CONSUMPTION OR SALE, 26 U.S.C. 4701.  UNDER SEC. 4705(A),
WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE, ALL TRANSFERS OF NARCOTICS
MUST BE MADE PURSUANT TO AN OFFICIAL ORDER FORM GIVEN TO THE TRANSFEROR
BY THE TRANSFEREE.  THE ORDER FORM CAN BE OBTAINED ONLY BE PERSONS
PROPERLY REGISTERED TO DEAL IN NARCOTICS.  IT WAS CONCEDED BY THE
GOVERNMENT ON ORAL ARGUMENT, HOWEVER, THAT "IT IS IMPOSSIBLE TO SECURE
AN ORDER FOR THE PURCHASE OF HEROIN . . . . THE ORDER FORMS MAY ONLY BE
USED TO PURCHASE A LAWFUL DRUG FOR WHICH THERE IS NO LAWFUL PURPOSE." 

THE FEDERAL GOVERNMENT DOES NOT HAVE PLENARY POWER TO DEFINE AND
PUNISH CRIMINAL ACTS.  ITS POWER IN THIS REGARD DERIVES FROM OTHER
POWERS SPECIFICALLY DELEGATED TO IT BY THE CONSTITUTION, AS THE TENTH
AMENDMENT PROVIDES: 

"THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION,
NOR PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES
RESPECTIVELY, OR TO THE PEOPLE." 

ART. I, SEC. 8.  ITS CONSTITUTIONALITY ON THIS BASIS WAS SUSTAINED IN
UNITED STATES V. DOREMUS, 249 U.S. 86-- A FIVE-TO-FOUR DECISION.  IT
WAS THERE SAID THAT THE "ORDER FORM" REQUIREMENT TENDED "TO KEEP THE
TRAFFIC ABOVEBOARD AND SUBJECT TO INSPECTION BY THOSE AUTHORIZED TO
COLLECT THE REVENUE," AND ALSO TENDED "TO DIMINISH THE OPPORTUNITY OF
UNAUTHORIZED PERSONS TO OBTAIN THE DRUGS AND SELL THEM CLANDESTINELY
WITHOUT PAYING THE TAX IMPOSED BY THE FEDERAL LAW."  ID., AT 94. 

AS I VIEW THIS CASE, THE GOVERNMENT IS PUNISHING AN INDIVIDUAL FOR
FAILING TO DO SOMETHING THAT THE GOVERNMENT HAS MADE IT IMPOSSIBLE FOR
HIM TO DO-- THAT IS, OBTAIN AN ORDER FORM FROM THE PROSPECTIVE
PURCHASER PRIOR TO MAKING A SALE OF HEROIN.  PETITIONER DID, OF COURSE,
HAVE THE OPTION NOT TO SELL THE HEROIN, AND IN THAT SENSE HIS
COMPLIANCE WITH THE STATUTE WAS INDEED QUITE POSSIBLE.  THIS ARGUMENT,
HOWEVER, OVERLOOKS THE FACT THAT THE STATUTE DOES NOT SIMPLY OUTLAW ALL
SALES OF HEROIN.  THE CRITICAL INTEREST OF THE GOVERNMENT IS
NECESSARILY IN THE COLLECTING OF THE TAX IMPOSED BY THE ACT, AND IT IS
THE ORDER FORM WHICH PROVIDES THE CRUCIAL LINK TO THIS PROPER
CONSTITUTIONAL PURPOSE.  IN NIGRO V. UNITED STATES, 276 U.S. 332, 341,
CHIEF JUSTICE TAFT, SPEAKING FOR THE COURT, SAID: 

     "IN INTERPRETING THE ACT, WE MUST ASSUME THAT IT IS A TAXING

  MEASURE, FOR OTHERWISE IT WOULD BE NO LAW AT ALL.  IF IT IS A

  MERE ACT FOR THE PURPOSE OF REGULATING AND RESTRAINING THE

PURCHASE OF THE OPIATE AND OTHER DRUGS, IT IS BEYOND THE POWER OF

  CONGRESS AND MUST BE REGARDED AS INVALID . . . ." 

THUS IT IS THE ORDER FORM-- NOT THE MERE SALE-- THAT CONSTITUTES THE
HEART OF THE OFFENSE FOR WHICH THIS PETITIONER WAS CONVICTED.  I DO NOT
SEE HOW THE GOVERNMENT CAN MAKE A CRIME OUT OF NOT RECEIVING AN ORDER
FORM AND AT THE SAME TIME ALLOW NO ORDER FORMS FOR THIS CATEGORY OF
SALES. 

NOR IS IT RELEVANT TO SUGGEST, AS DOES THE MAJORITY OPINION, ANTE,
AT 98 N. 13, THAT A STATUTE IMPOSING A FLAT BAN ON SALES OF HEROIN
MIGHT BE SUSTAINABLE UNDER THE COMMERCE CLAUSE.  WE ARE CONCERNED IN
THIS CASE WITH WHAT THE CONGRESS DID, NOT WITH WHAT IT MIGHT HAVE DONE
OR MIGHT YET DO IN THE FUTURE.  IT IS CLEAR THAT WHAT CONGRESS DID IN
SEC. 4705(A) WAS TO ENACT A TAXING MEASURE.  AND THE CRIME CHARGED WAS
NOT SELLING HEROIN, BUT SELLING IT "NOT IN PURSUANCE OF A WRITTEN ORDER
. . . FORM," AS PRESCRIBED IN SEC. 4705(A). 

I WOULD REVERSE THIS JUDGMENT OF CONVICTION. 

PHYLIS SKLOOT BAMBERGER, BY APPOINTMENT OF THE COURT, POST, P. 809,
ARGUED THE CAUSE FOR PETITIONER IN NO. 189.  WITH HER ON THE BRIEFS WAS
WILLIAM E. HELLERSTEIN.  DAVID A. DIAMOND ARGUED THE CAUSE AND FILED A
BRIEF FOR PETITIONER IN NO. 271. 

PETER L. STRAUSS ARGUED THE CAUSE FOR THE UNITED STATES IN NO. 189. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL WILSON, BEATRICE ROSENBERG, AND LEONARD H. DICKSTEIN. 
JOSEPH J. CONNOLLY ARGUED THE CAUSE FOR THE UNITED STATES IN NO. 271. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL WILSON, MISS ROSENBERG, AND MERVYN HAMBURG. 
..END :













MORALES V. NEW YORK, 396 U.S. 102 


       MORALES V. NEW YORK

        CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

        NO. 86.  ARGUED NOVEMBER 20, 1969-- DECIDED DECEMBER 8,

           1969 


PETITIONER WENT TO HIS MOTHER'S PLACE OF BUSINESS AFTER HIS MOTHER
TOLD HIM BY TELEPHONE THAT THE POLICE WISHED TO TALK WITH HIM.  HE WAS
APPREHENDED AND TAKEN TO A POLICE STATION, WHERE WITHIN 15 MINUTES HE
CONFESSED TO A MURDER BY STABBING.  HE WROTE AND SIGNED A STATEMENT AND
LATER REPEATED THE SUBSTANCE OF THE STATEMENT IN RESPONSE TO FURTHER
POLICE QUESTIONING.  A SEPARATE HEARING ON THE VOLUNTARINESS OF THE
CONFESSIONS WAS HELD, AND THE TRIAL JUDGE FOUND THEM VOLUNTARY AND
ADMITTED THEM INTO EVIDENCE.  PETITIONER WAS CONVICTED AND THE
CONVICTION WAS AFFIRMED BY THE APPELLATE DIVISION OF THE NEW YORK
SUPREME COURT.  IN THE NEW YORK COURT OF APPEALS, PETITIONER FOR THE
FIRST TIME RAISED A FOURTH AMENDMENT ISSUE, CLAIMING THAT THERE WAS NO
PROBABLE CAUSE FOR HIS ARREST AND THAT THE CONFESSIONS, EVEN IF
VOLUNTARY, WERE INADMISSIBLE FRUITS OF THE ILLEGAL DETENTION.  THE
COURT OF APPEALS AFFIRMED, HOLDING THAT THE STATE COULD CONDUCT BRIEF
CUSTODIAL INTERROGATION OF "THOSE PERSONS REASONABLY SUSPECTED OF
POSSESSING KNOWLEDGE OF THE CRIME UNDER INVESTIGATION IN CIRCUMSTANCES
INVOLVING CRIMES PRESENTING A HIGH DEGREE OF PUBLIC CONCERN AFFECTING
THE PUBLIC SAFETY."  HELD: 

1.  THE DETERMINATION THAT THE CONFESSIONS WERE VOLUNTARY IS NOT
DISTURBED, AS THE TRIAL OCCURRED PRIOR TO MIRANDA V. ARIZONA, 384 U.S.
436, AND THE TOTALITY OF THE CIRCUMSTANCES SHOWS THAT THE CONFESSIONS
WERE NOT COERCED. 

2.  THE QUESTION OF THE LEGALITY OF CUSTODIAL QUESTIONING ON LESS
THAN PROBABLE CAUSE FOR A FULL-FLEDGED ARREST, WHICH GOES BEYOND TERRY
V. OHIO, 392 U.S. 1, AND SIBRON V. NEW YORK, 392 U.S. 40, IS NOT
DECIDED IN VIEW OF THE ABSENCE OF A RECORD WHICH SQUARELY AND
NECESSARILY PRESENTS THE ISSUE AND FULLY ILLUMINATES THE FACTUAL
CONTEXT IN WHICH THE QUESTION ARISES. 

22 N.Y.2D 55, 238 N.E.2D 307, VACATED AND REMANDED. 

PER CURIAM. 

ON OCTOBER 4, 1964, A MURDER BY STABBING TOOK PLACE IN AN ELEVATOR
OF AN APARTMENT BUILDING WHERE PETITIONER MORALES' MOTHER LIVED AND
WHERE MORALES FREQUENTLY VISITED.  ON OCTOBER 13, HIS MOTHER INFORMED
MORALES BY TELEPHONE THAT THE POLICE WISHED TO TALK WITH HIM;
PETITIONER SAID THAT HE WOULD COME THAT EVENING TO HIS MOTHER'S PLACE
OF BUSINESS.  THIS HE DID.  HE WAS APPREHENDED BY POLICE OFFICERS AND
TAKEN TO THE POLICE STATION, ARRIVING AT 8:30 P.M.  WITHIN 15 MINUTES
HE HAD CONFESSED TO THE CRIME AND BY 9:05 P.M. HE HAD WRITTEN AND
SIGNED A STATEMENT.  IN RESPONSE TO SUBSEQUENT QUESTIONING BY POLICE
OFFICERS, MORALES LATER REPEATED THE SUBSTANCE OF THIS CONFESSION.  AT
THE TRIAL, THE COURT HELD A SEPARATE HEARING ON THE VOLUNTARINESS OF
THE CONFESSIONS, FOUND THEM VOLUNTARY, AND ADMITTED THEM OVER MORALES'
OBJECTION.  MORALES WERE CONVICTED, THE JURY APPARENTLY REJECTING HIS
ALIBI DEFENSE THAT HE WAS WITH HIS MOTHER AT THE TIME OF THE MURDER. 
THE APPELLATE DIVISION OF THE NEW YORK SUPREME COURT AFFIRMED WITHOUT
OPINION.  PEOPLE V. MORALES, 27 APP.DIV.2D 904, 280 N.Y.S.2D 520
(1967).  IN THE NEW YORK COURT OF APPEALS, MORALES FOR THE FIRST TIME
RAISED A FOURTH AMENDMENT ISSUE, CLAIMING THAT THERE WAS NO PROBABLE
CAUSE FOR HIS DETENTION AT THE TIME OF HIS CONFESSIONS AND THAT THE
CONFESSIONS, EVEN IF VOLUNTARY, WERE INADMISSIBLE FRUITS OF THE ILLEGAL
DETENTION.  THE STATE ASSERTED THAT THE ISSUE HAD NOT BEEN DECIDED
BELOW AND THAT THERE HAD HENCE BEEN NO OPPORTUNITY TO MAKE A RECORD OF
THE RELEVANT FACTS; MOREOVER, THE STATE CLAIMED THAT MORALES HAD
VOLUNTARILY SURRENDERED HIMSELF FOR QUESTIONING AND THAT IN ANY EVENT
THE VOLUNTARY CONFESSIONS WERE THE RESULT OF AN INDEPENDENT CHOICE BY
MORALES SUCH THAT THE LEGALITY OF THE DETENTION WAS IRRELEVANT TO THE
ADMISSIBILITY OF THE CONFESSIONS. 

THE COURT OF APPEALS AFFIRMED, ACCEPTING WITHOUT DISCUSSION THE
TRIAL COURT'S FINDING AS TO THE VOLUNTARINESS OF MORALES' CONFESSIONS. 
PEOPLE V. MORALES, 22 N.Y.2D 55, 238 N.E.2D 307 (1968).  THE COURT
DEALT WITH AND REJECTED THE FOURTH AMENDMENT CLAIM NOT ON THE GROUND
THAT THERE WAS PROBABLE CAUSE TO ARREST BUT RATHER ON THE GROUND THAT
THE POLICE CONDUCT INVOLVED WAS REASONABLE UNDER THE CIRCUMSTANCES OF
THE CASE.  ALTHOUGH MORALES WAS NOT FREE TO LEAVE AT THE TIME HE WAS
APPREHENDED AND WOULD HAVE BEEN RESTRAINED HAD HE ATTEMPTED TO FLEE,
THE COURT OF APPEALS STATED THAT HIS DETENTION WAS NOT A FORMAL ARREST
UNDER NEW YORK LAW AND THAT HAD HE REFUSED TO ANSWER QUESTIONS IN THE
POLICE STATION (WHERE HE WAS ENTITLED TO HAVE A LAWYER IF HE DESIRED
ONE) HE WOULD HAVE BEEN FREE TO LEAVE.  THE COURT OF APPEALS HELD THAT
THE STATE HAD AUTHORITY UNDER THE FOURTH AMENDMENT TO CONDUCT BRIEF
CUSTODIAL INTERROGATION OF "THOSE PERSONS REASONABLY SUSPECTED OF
POSSESSING KNOWLEDGE OF THE CRIME UNDER INVESTIGATION IN CIRCUMSTANCES
INVOLVING CRIMES PRESENTING A HIGH DEGREE OF PUBLIC CONCERN AFFECTING
THE PUBLIC SAFETY."  22 N.Y.2D, AT 65, 238 N.E.2D, AT 314.  WE GRANTED
CERTIORARI, 394 U.S. 972 (1969). 

AFTER CONSIDERING THE FULL RECORD, WE DO NOT DISTURB THE
DETERMINATION OF THE TRIAL COURT, AFFIRMED BY THE NEW YORK APPELLATE
COURTS, THAT MORALES' CONFESSIONS WERE VOLUNTARILY GIVEN.  THE TRIAL
OCCURRED PRIOR TO MIRANDA V. ARIZONA, 384 U.S. 436 (1966), AND THE
TOTALITY OF THE CIRCUMSTANCES SURROUNDING THE CONFESSIONS SHOWS THAT
THE CONFESSIONS WERE VOLUNTARY, NOT COERCED. 

WE SHOULD NOT, HOWEVER, DECIDE ON THE RECORD BEFORE US WHETHER
MORALES' CONVICTION SHOULD OTHERWISE BE AFFIRMED.  THE RULING BELOW,
THAT THE STATE MAY DETAIN FOR CUSTODIAL QUESTIONING ON LESS THAN
PROBABLE CAUSE FOR A TRADITIONAL ARREST, IS MANIFESTLY IMPORTANT, GOES
BEYOND OUR SUBSEQUENT DECISIONS IN TERRY V. OHIO, 392 U.S. 1 (1968),
AND SIBRON V. NEW YORK, 392 U.S. 40 (1968), AND IS CLAIMED BY
PETITIONER TO BE AT ODDS WITH DAVIS V. MISSISSIPPI, 394 U.S. 721
(1969).  BUT WE HAVE CONCLUDED AFT-R CONSIDERING THE PARTIES' BRIEFS
AND HEARING ORAL ARGUMENT THAT THERE IS MERIT IN THE STATE'S POSITION
THAT THE RECORD DOES NOT PERMIT A SATISFACTORY EVALUATION OF THE FACTS
SURROUNDING THE APPREHENSION AND 8ETENTION OF MORALES.  A LENGTHY
HEARING WAS HELD ON THE QUESTION OF THE VOLUNTARINESS OF THE
CONFESSIONS, BUT THE BASIS FOR THE APPREHENSION OF MORALES DOES NOT
APPEAR TO HAVE BEEN FULLY EXPLORED SINCE NO CHALLENGE TO THE LAWFULNESS
OF THE APPREHENSION WAS RAISED UNTIL THE CASE CAME TO THE COURT OF
APPEALS.  ALTHOUGH THAT COURT STATED THAT "(IT MAY BE CONCEDED THAT THE
APPREHENDING DETECTIVES DID NOT HAVE PROBABLE CAUSE TO JUSTIFY AN
ARREST OF DEFENDANT AT THE TIME THEY TOOK HIM INTO CUSTODY," 22 N.Y.2D,
AT 58, 238 N.E.2D, AT 310, THE COURT LATER SAID THAT "(THE CHECKERBOARD
SQUARE OF THE POLICE INVESTIGATION, ALTHOUGH RESTING UPON
CIRCUMSTANTIAL EVIDENCE, POINTED ONLY TO DEFENDANT . . . . IN FACT,
DEFENDANT WAS THE ONLY PERSON THE POLICE COULD HAVE REASONABLY DETAINED
FOR QUESTIONING BASED UPON THE INSTANT RECORD."  22 N.Y.2D, AT 64, 238
N.E.2D, AT 313. 

GIVEN AN OPPORTUNITY TO DEVELOP IN AN EVIDENTIARY HEARING THE
CIRCUMSTANCES LEADING TO THE DETENTION OF MORALES AND HIS CONFESSIONS,
THE STATE MAY BE ABLE TO SHOW THAT THERE WAS PROBABLE CAUSE FOR AN
ARREST OR THAT MORALES' CONFRONTATION WITH THE POLICE WAS VOLUNTARILY
UNDERTAKEN BY HIM OR THAT THE CONFESSIONS WERE NOT THE PRODUCT OF
ILLEGAL DETENTION.  IN ANY EVENT, IN THE ABSENCE OF A RECORD THAT
SQUARELY AND NECESSARILY PRESENTS THE ISSUE AND FULLY ILLUMINATES THE
FACTUAL CONTEXT IN WHICH THE QUESTION ARISES, WE CHOOSE NOT TO GRAPPLE
WITH THE QUESTION OF THE LEGALITY OF CUSTODIAL QUESTIONING ON LESS THAN
PROBABLE CAUSE FOR A FULL-FLEDGED ARREST. 

WE ACCORDINGLY VACATE THE JUDGMENT BELOW AND REMAND THE CASE FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACK DISSENTS AND WOULD AFFIRM. 

RICHARD T. FARRELL ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

BURTON B. ROBERTS, ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS DANIEL J. SULLIVAN. 
..END :














CONWAY V. ADULT AUTHORITY, 396 U.S. 107 


       CONWAY V. CALIFORNIA ADULT AUTHORITY ET AL.

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT

        NO. 40.  ARGUED NOVEMBER 12, 1969-- DECIDED DECEMBER 8,

           1969 


CERTIORARI WAS GRANTED TO CONSIDER PETITIONER'S CONTENTION THAT HIS
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION HAD BEEN INFRINGED BY
THE CALIFORNIA PRISON AUTHORITIES.  PETITIONER, WHO WAS SERVING
CONSECUTIVE SENTENCES OF NOT LESS THAN FIVE YEARS EACH, ATTACKED THE
CONSTITUTIONALITY OF HIS CONFINEMENT PURSUANT TO THE CALIFORNIA
INDETERMINATE SENTENCE LAW.  HE ASSERTED THAT RESPONDENT ADULT
AUTHORITY EXTENDED HIS TERM BEYOND THE DATE TENTATIVELY SET FOR HIS
DISCHARGE SOLELY BECAUSE HE REFUSED TO ADMIT HIS GUILT.  RESPONDENTS
FILED NO RESPONSE TO THE PETITION FOR HABEAS CORPUS IN THE DISTRICT
COURT, AND IN RESPONSE TO THE PETITION FOR CERTIORARI MERELY ARGUED
THAT PETITIONER'S CLAIM WAS LEGALLY INSUBSTANTIAL.  IN THEIR BRIEF ON
THE MERITS HERE THEY HAVE PRESENTED DOCUMENTARY EVIDENCE THAT THE
ACTUAL FACTS DO NOT PRESENT THE ISSUE FOR WHICH CERTIORARI WAS
GRANTED.  HELD:  THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY
GRANTED. 

CERTIORARI DISMISSED. 

PER CURIAM. 

THE PETITION FOR HABEAS CORPUS IN THIS CASE, WHICH WAS FILED IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND WHICH WAS
PREPARED BY PETITIONER PRO SE, ATTACKED THE CONSTITUTIONALITY OF
PETITIONER'S CONFINEMENT IN THE STATE PRISON SYSTEM PURSUANT TO THE
CALIFORNIA INDETERMINATE SENTENCE LAW.  /1/  PETITIONER RECITED THAT HE
WAS CONVICTED IN 1952 ON TWO COUNTS OF FIRST-DEGREE ROBBERY AND WAS
GIVEN CONSECUTIVE SENTENCES OF NOT LESS THAN FIVE YEARS EACH, WITH NO
MAXIMUM PRESCRIBED BY LAW.  CALIFORNIA LAW PROVIDES THAT WHERE NO
MAXIMUM TERM IS SET, THE PUNISHMENT SHALL BE LIFE IMPRISONMENT SUBJECT
TO THE POWER OF THE CALIFORNIA ADULT AUTHORITY TO "DETERMINE AND
REDETERMINE" THE LENGTH OF TIME THAT A PRISONER SHALL BE REQUIRED TO
SERVE.  CAL. PENAL CODE SECS. 671 (1955), 1168, 3020 (1956). 

PETITIONER ASSERTED THAT IN JUNE 1961 HE APPEARED BEFORE THE ADULT
AUTHORITY FOR PAROLE CONSIDERATION, AS HE HAD DONE ON A YEARLY BASIS
DURING HIS CONFINEMENT.  ACCORDING TO PETITIONER, DURING THAT
APPEARANCE THE MEMBERS OF THE AUTHORITY EVINCED AN INTENTION TO EXTEND
HIS TERM BEYOND MARCH 1962, THE DATE THAT HAD BEEN TENTATIVELY SET FOR
HIS DISCHARGE, SOLELY BECAUSE PETITIONER REFUSED TO ADMIT HIS GUILT. 
/2/  SHORTLY AFTER THE APPEARANCE, THE ADULT AUTHORITY RESCINDED ITS
EARLIER ACTION SCHEDULING PETITIONER FOR RELEASE IN 1962; NO NEW DATE
FOR RELEASE WAS FIXED, AND PETITIONER HAS REMAINED IN CUSTODY
CONTINUOUSLY SINCE THAT TIME. 

THE PETITION FOR HABEAS CORPUS STATED FLATLY THAT THE APPEARANCE
BEFORE THE AUTHORITY IN JUNE 1961 WAS FOR ROUTINE PAROLE CONSIDERATION;
PETITIONER CLAIMED THAT HE HAD BEEN FREE FROM INFRACTIONS OF PRISON
RULES FOR AT LEAST A YEAR PRIOR TO THE APPEARANCE.  HE FURTHER DECLARED
THAT HE WAS GIVEN NO REASON FOR THE REDETERMINATION OF HIS SENTENCE,
AND RECEIVED NO NOTICE OR HEARING CONCERNING ANY POSSIBLE BASIS FOR
SUCH ACTION.  IN CONCLUSION, PETITIONER STATE THAT, "OBVIOUSLY, THE
ONLY REASON FOR THIS ACTION WAS TO COERCE PETITIONER TO PLEAD GUILTY
AND NOT CHALLENGE HIS CONVICTION AFTER BEING RELEASED ON DISCHARGE." 

RESPONDENTS FILED NO RESPONSE TO THE PETITION IN THE DISTRICT
COURT.  THAT COURT DENIED THE WRIT WITHOUT A HEARING, IN A BRIEF ORDER
STATING THAT NO FEDERAL QUESTIONS HAD BEEN PRESENTED.  THE COURT OF
APPEALS FOR THE NINTH CIRCUIT DENIED A CERTIFICATE OF PROBABLE CAUSE TO
APPEAL FOR THE REASONS EXPRESSED BY THE DISTRICT COURT, AND PETITIONER
APPLIED TO THIS COURT FOR A WRIT OF CERTIORARI.  ON THE FACTS RECITED
BY PETITIONER, WE GRANTED CERTIORARI TO CONSIDER HIS CONTENTION THAT
HIS PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION HAD BEEN INFRINGED
BY THE PRISON AUTHORITIES.  393 U.S. 1062 (1969). 

IN ITS BRIEF ON THE MERITS, RESPONDENTS HAVE BROUGHT TO OUR
ATTENTION A SERIES OF PRISON DOCUMENTS, WHOSE ACCURACY HAS IN NO WAY
BEEN DRAWN INTO QUESTION BY PETITIONER, THAT CAST PETITIONER'S
DETENTION IN A LIGHT WHOLLY DIFFERENT FROM THAT SHED BY HIS PETITION
FOR CERTIORARI.  THESE DOCUMENTS SHOW THAT IN DECEMBER 1960 CONWAY WAS
SERVED WITH A NOTICE CHARGING HIM WITH VIOLATION OF PRISON RULES AND
INFORMING HIM THAT THE VIOLATION MIGHT RESULT IN A REFIXING OF HIS
PRISON TERM; HE ATTENDED A HEARING AT WHICH HE WAS FOUND GUILTY OF
FIGHTING WITH ANOTHER PRISONER AND WAS SENTENCED TO THREE DAYS IN
ISOLATION, WITH A RECOMMENDATION THAT HIS ADULT AUTHORITY APPEARANCE BE
POSTPONED UNTIL JUNE 1961.  FOLLOWING THAT APPEARANCE, AS PETITIONER
NOTES, THE AUTHORITY RESCINDED ITS EARLIER ACTION FIXING A DETERMINATE
SENTENCE, THEREBY REINSTATING BY OPERATION OF LAW HIS INITIAL
INDETERMINATE SENTENCE.  THUS, IT NOW APPEARS RESPONDENTS HAVE
DOCUMENTARY EVIDENCE THAT THE ACTUAL FACTS SIMPLY DO NOT PRESENT THE
ISSUE FOR WHICH CERTIORARI WAS GRANTED BY US. 

THAT THIS IMPOSITION ON THIS COURT HAS BEEN REVEALED OKLY AT THIS
LATE STAGE SEEMS TO HAVE BEEN THE RESULT OF THE POLICY OF THE ATTORNEY
GENERAL OF CALIFORNIA, AS EXPLAINED IN THE RESPONDENTS' BRIEF, TO MAKE
NO RESPONSE TO HABEAS CORPUS PETITIONS OF STATE PRISONERS UNLESS THE
COURT IN WHICH A PETITION IS FILED REQUESTS A RESPONSE, AS FOR EXAMPLE,
SO RESPONDENTS SAY, BY ISSUING AN ORDER TO SHOW CAUSE WHY THE WRIT
SHOULD NOT BE GRANTED.  SINCE NO RESPONSE EVENTUATED IN THIS INSTANCE
AND RESPONDENTS ALSO FAILED TO FLUSH THE PROBLEM AT THE CERTIORARI
STAGE, /3/  BOTH THIS COURT AND THE ATTORNEY APPOINTED BY THE COURT TO
REPRESENT PETITIONER HERE HAVE UNWITTINGLY BEEN PLACED IN THE
UNFORTUNATE POSTURE OF ADDRESSING A SITUATION THAT DOES NOT EXIST. 

IN THIS STATE OF AFFAIRS WE DECLINE TO ADJUDICATE THIS CASE.  WERE
WE TO PASS UPON THE PURELY ARTIFICIAL AND HYPOTHETICAL ISSUE TENDERED
BY THE PETITION FOR CERTIORARI WE WOULD NOT ONLY IN EFFECT BE RENDERING
AN ADVISORY OPINION BUT ALSO LENDING OURSELVES TO AN UNJUSTIFIABLE
INTRUSION UPON THE TIME OF THIS COURT.  ACCORDINGLY, THE WRIT OF
CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

              IT IS SO ORDERED. 

/1/  SEE CAL. PENAL CODE SEC. 1168 (1956) AND PROVISIONS THERE
LISTED. 

/2/  PETITIONER CLAIMED THAT HIS DISCUSSION WITH THE MEMBERS OF THE
AUTHORITY HAD TURNED TO WHAT HE PLANNED TO DO IF RELEASED.  WHEN
PETITIONER STATED THAT HE EXPECTED TO GO "TO BAKERSFIELD," ONE MEMBER
RESPONDED:  "BUT THAT IS WHERE YOU GOT INTO THIS TROUBLE.  WHAT ARE YOU
PLANNING TO DO THERE?"  PETITIONER DECLARED, "I'M GOING TO FIGHT MY
CASE," PROMPTING THE MEMBER TO ASK WHETHER PETITIONER HAD NOT ADMITTED
TO THE AUTHORITY, TWO YEARS EARLIER, THAT HE WAS GULITY.  AFTER
PETITIONER DENIED THE PREVIOUS ADMISSION, THE MEMBERS RAISED--
ASSERTEDLY FOR THE FIRST TIME-- THE POSSIBILITY OF EXTENDING
PETITIONER'S TERM. 

/3/  IN RESPONSE TO THE PETITION FOR CERTIORARI RESPONDENTS MERELY
LOCKED HORNS WITH THE ALLEGATIONS OF THE PETITION AS FILED, WITHOUT
DRAWING THE COURT'S ATTENTION TO THE ACTUAL FACTS AS SUBSEQUENTLY
REVEALED IN ITS BRIEF ON THE MERITS. 

CHARLES STEPHEN RALSTON, BY APPOINTMENT OF THE COURT, 394 U.S. 941,
ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

ARLO E. SMITH, CHIEF ASSISTANT ATTORNEY GENERAL OF CALIFORNIA,
ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WERE THOMAS C.
LYNCH, ATTORNEY GENERAL, AND GEORGE R. NOCK, DEPUTY ATTORNEY GENERAL. 
..END :






















NATIONAL SMALL SHIPMENTS TRAFFIC CONFERENCE V. MIDDLEWEST MOTOR
FREIGHT BUREAU, 396 U.S. 111 A 



       NATIONAL SMALL SHIPMENTS TRAFFIC CONFERENCE, INC., ET AL. V.

           MIDDLEWEST MOTOR FREIGHT BUREAU ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MINNESOTA

        NO. 539.  DECIDED DECEMBER 8, 1969 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 

ARTHUR A. ARSHAM AND JOHN J. C. MARTIN FOR APPELLANTS. 

ROLAND RICE FOR MIDDLEWEST MOTOR FREIGHT BUREAU ET AL., AND
SOLICITOR GENERAL GRISWOLD AND FRITZ KAHN FOR THE INTERSTATE COMMERCE
COMMISSION, APPELLEES. 
..END :
























INTERNATIONAL NICKEL CO. V. CITY OF BAYONNE, 396 U.S. 111 


       INTERNATIONAL NICKEL CO., INC. V. CITY OF BAYONNE

        APPEAL FROM THE SUPREME COURT OF NEW JERSEY

   NO. 542.  DECIDED DECEMBER 8, 1969 


54 N.J. 94, 253 A.2D 545, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

PROSPERO DEBONA FOR APPELLANT. 

NICHOLAS A. PANEPINTO FOR APPELLEE. 
..END :











AMBROSE V. WELLS, 396 U.S. 112 


       AMBROSE ET AL. V. WELLS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK

        NO. 580.  DECIDED DECEMBER 8, 1969 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 

JOHN M. ARMENTANO FOR APPELLANTS. 

ROBERT B. MCKAY FOR WELLS, AND LOUIS J. LEFKOWITZ, ATTORNEY GENERAL
OF NEW YORK, PRO SE, AND GEORGE D. ZUCKERMAN, ASSISTANT ATTORNEY
GENERAL, FOR ROCKEFELLER ET AL., APPELLEES. 
..END :







GOODING V. WILSON, 396 U.S. 112 


       GOODING, WARDEN V. WILSON

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA

        NO. 582.  DECIDED DECEMBER 8, 1969 


303 F.SUPP.  952, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION OF THE APPELLEE FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED
FOR WANT OF JURISDICTION. 

ARTHUR K. BOLTON, ATTORNEY GENERAL OF GEORGIA, HAROLD N. HILL, JR.,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, MARION O. GORDON AND COURTNEY
WILDER STANTON, ASSISTANT ATTORNEYS GENERAL, AND FRANKLIN PIERCE FOR
APPELLANT. 
..END :







PERK V. OHIO, 396 U.S. 113 


       PERK, AUDITOR OF CUYAHOGA COUNTY V. OHIO EX REL. CORRIGAN,

           PROSECUTING ATTORNEY OF CUYAHOGA COUNTY

        APPEAL FROM THE SUPREME COURT OF OHIO

NO. 590.  DECIDED DECEMBER 8, 1969 


19 OHIO ST.2D 1, 249 N.E.2D 525, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

GERALD A. DONAHUE AND DONALD M. ROBINER FOR APPELLANT. 

JOHN T. CORRIGAN, PRO SE, AND JOHN L. DOWLING FOR APPELLEE. 
..END :





MISSISSIPPI POWER & LIGHT CO. V. CAPITAL ELECTRIC POWER ASSN., 396
U.S. 113 



       MISSISSIPPI POWER & LIGHT CO. V. CAPITAL ELECTRIC POWER

           ASSN.

        APPEAL FROM THE SUPREME COURT OF MISSISSIPPI

        NO. 611.  DECIDED DECEMBER 8, 1969 


222 SO.2D 399, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

BERNARD G. SEGAL, SAMUEL D. SLADE, SHERWOOD W. WISE, GARNER W.
GREEN, AND JOSHUA GREEN FOR APPELLANT. 

T. HARVEY HEDGEPETH FOR APPELLEE. 
..END :





BALTHAZAR V. MARI LTD., 396 U.S. 114 


       BALTHAZAR ET UX. V. MARI LTD. ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

  NORTHERN DISTRICT OF ILLINOIS

        NO. 593.  DECIDED DECEMBER 8, 1969 


301 F.SUPP.  103, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

MARSHALL PATNER FOR APPELLANTS. 

MAURICE P. RAIZES FOR MARI LTD. ET AL., AND DANIEL P. COMAN, THOMAS
E. BRANNIGAN, AND DEAN H. BILTON FOR BOYLE, APPELLEES. 
..END :






MATHIS V. NELSON, 396 U.S. 114 


       MATHIS V. NELSON, WARDEN

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA

        NO. 620, MISC.  DECIDED DECEMBER 8, 1969 


70 CAL.2D 467, 450 P.2D 290, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, ALBERT W. HARRIS,
JR., ASSISTANT ATTORNEY GENERAL, AND ROBERT R. GRANUCCI, DEPUTY
ATTORNEY GENERAL, FOR APPELLEE. 
..END :










NEW ORLEANS CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, V.
UNITED STATES, 396 U.S. 115 A   



       NEW ORLEANS CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF

           AMERICA, INC. V. UNITED STATES

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF LOUISIANA

        NO. 599.  DECIDED DECEMBER 8, 1969 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

R. EMMETT KERRIGAN, RALPH L. KASKELL, JR., AND GEORGE W. WISE FOR
APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN, AND
IRWIN A. SEIBEL FOR THE UNITED STATES. 
..END :






















HUESDASH V. HASKINS, 396 U.S. 115 


       HUESDASH V. HASKINS, CORRECTIONAL SUPERINTENDENT

        APPEAL FROM THE SUPREME COURT OF OHIO

        NO. 816, MISC.  DECIDED DECEMBER 8, 1969 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














UNITED FUEL GAS CO. V. HADEN, 396 U.S. 116 


       UNITED FUEL GAS CO. V. HADEN, TAX COMMISSIONER OF WEST

           VIRGINIA

        APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

        NO. 617.  DECIDED DECEMBER 8, 1969 


-- W.VA.-- , 167 S.E.2D 890, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

C. E. GOODWIN FOR APPELLANT. 

CHAUNCEY H. BROWNING, JR., ATTORNEY GENERAL OF WEST VIRGINIA, AND
WILLIAM F. CARROLL, ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :






INGRAM V. CALIFORNIA, 396 U.S. 116 


       INGRAM V. CALIFORNIA

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT

        NO. 1017, MISC.  DECIDED DECEMBER 8, 1969 


272 CAL.APP.2D 435, 77 CAL.RPTR.  423, APPEAL DISMISSED AND
CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :











FOSTER V. CALDWELL, 396 U.S. 117 


       FOSTER V. CALDWELL, INDUSTRIAL INSTITUTE SUPERINTENDENT

        APPEAL FROM THE SUPREME COURT OF GEORGIA

      NO. 72, MISC.  DECIDED DECEMBER 8, 1969 


225 GA. 1, 165 S.E.2D 724, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

REBER F. BOULT, JR., CHARLES MORGAN, JR., MELVIN L. WULF, AND
ELEANOR HOLMES NORTON FOR APPELLANT. 

ARTHUR K. BOLTON, ATTORNEY GENERAL OF GEORGIA, HAROLD N. HILL, JR.,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND MARION O. GORDON, ASSISTANT
ATTORNEY GENERAL, FOR APPELLEE. 
..END :







MCMANN V. ROSS, 396 U.S. 118 


       MCMANN, WARDEN, ET AL. V. ROSS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

       SECOND CIRCUIT

        NO. 153.  DECIDED DECEMBER 8, 1969 


409 F.2D 1016, VACATED AND REMANDED AS TO RESPONDENT ROSS. 

PER CURIAM. 

UPON CONSIDERATION OF THE SUGGESTION OF MOOTNESS BY REASON OF THE
DEATH OF RESPONDENT ROSS THE JUDGMENT OF THE COURT OF APPEALS, AS TO
ROSS, IS VACATED AND THE CASE AS TO HIM IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK WITH
DIRECTIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS AS MOOT. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND LILLIAN Z. COHEN AND
BRENDA SOLOFF, ASSISTANT ATTORNEYS GENERAL, FOR PETITIONERS. 

THOMAS D. BARR FOR RESPONDENT ROSS. 

FRANK S. HOGAN, PRO SE, AND MICHAEL R. JUVILER FOR THE DISTRICT
ATTORNEY OF NEW YORK COUNTY AS AMICUS CURIAE URGING REVERSAL. 
..END :























CARLOS V. NEW YORK, 396 U.S. 119 


       CARLOS V. NEW YORK

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS

           OF NEW YORK

        NO. 524.  DECIDED DECEMBER 8, 1969 


CERTIORARI GRANTED; 24 N.Y.2D 865, 248 N.E.2D 924, REVERSED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED, REDRUP V. NEW YORK, 386 U.S. 767. 

THE CHIEF JUSTICE AND MR. JUSTICE HARLAN ARE OF THE OPINION THAT
CERTIORARI SHOULD BE DENIED.  HOWEVER, THE CASE HAVING BEEN TAKEN FOR
REVIEW, THEY WOULD AFFIRM THE JUDGMENT OF THE STATE COURT UPON THE
PREMISES STATED IN MR. JUSTICE HARLAN'S SEPARATE OPINION IN ROTH V.
UNITED STATES, 354 U.S. 476, 496 (1957), AND IN HIS DISSENTING OPINION
IN MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 455 (1966). 

HERALD PRICE FAHRINGER AND EUGENE GRESSMAN FOR PETITIONER. 
..END :




SHANKER V. RANKIN, 396 U.S. 120 


       SHANKER ET AL. V. RANKIN, CORPORATION COUNSEL OF THE CITY OF

           NEW YORK

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 552.  DECIDED DECEMBER 8, 1969 


25 N.Y.2D 780, 250 N.E.2D 584, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

RALPH P. KATZ FOR APPELLANTS. 

J. LEE RANKIN, PRO SE, FREDERIC S. NATHAN, AND STANLEY BUCHSBAUM FOR
APPELLEE. 
..END :




HOUSE OF SEAGRAM V. STATE LIQUOR AUTHORITY, 396 U.S. 121 


       HOUSE OF SEAGRAM, INC. V. STATE LIQUOR AUTHORITY ET AL.

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 563.  DECIDED DECEMBER 8, 1969 


25 N.Y.2D 865, 250 N.E.2D 873, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

H. GARDNER INGRAHAM AND EMANUEL BECKER FOR APPELLANT. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, RUTH KESSLER TOCH,
SOLICITOR GENERAL, AND GRACE K. BANOFF FOR APPELLEES. 
..END :





BROCKINGTON V. RHODES, 396 U.S. 41 


       BROCKINGTON V. RHODES, GOVERNOR OF OHIO, ET AL.

       APPEAL FROM THE SUPREME COURT OF OHIO

        NO. 31.  ARGUED OCTOBER 22, 1969-- DECIDED NOVEMBER 24,

    1969 


APPELLANT, WHOSE NOMINATING PETITION BORE SIGNATURES OF ABOUT 1% OF
THOSE IN THE CONGRESSIONAL DISTRICT WHO HAD VOTED IN THE LAST
GUBERNATORIAL ELECTION (ALTHOUGH THE OHIO STATUTE THEN REQUIRED 7% OF
THE VOTERS ON THE NOMINATING PETITION FOR AN INDEPENDENT CANDIDATE FOR
CONGRESS), SOUGHT, AS HIS SOLE RELIEF, A WRIT OF MANDAMUS TO COMPEL THE
BOARD OF ELECTIONS TO PLACE HIS NAME ON THE BALLOT AS AN INDEPENDENT
CANDIDATE FOR CONGRESS IN THE NOVEMBER 1968 ELECTION.  HELD:  IN VIEW
OF THE LIMITED NATURE OF THE RELIEF REQUESTED THE CASE IS NOT MOOT. 

VACATED AND REMANDED. 

PER CURIAM. 

THE APPELLANT SOUGHT TO RUN IN THE NOVEMBER 1968 ELECTION AS AN
INDEPENDENT CANDIDATE FOR THE UNITED STATES HOUSE OF REPRESENTATIVES
FROM THE TWENTY-FIRST CONGRESSIONAL DISTRICT OF OHIO.  HIS NOMINATING
PETITION BORE THE SIGNATURES OF 899 VOTERS IN THE CONGRESSIONAL
DISTRICT, A LITTLE OVER 1% OF THOSE IN THE DISTRICT WHO HAD VOTED IN
THE GUBERNATORIAL CONTEST AT THE LAST ELECTION.  THE BOARD OF ELECTIONS
RULED THAT THE APPELLANT'S PETITION WAS INSUFFICIENT TO PUT HIS NAME ON
THE NOVEMBER BALLOT, BECAUSE IT DID NOT CONTAIN THE SIGNATURES OF 7% OF
THE QUALIFIED VOTERS, AS OHIO LAW THEN REQUIRED.  /1/  THE APPELLANT
PETITIONED THE COURT OF COMMON PLEAS FOR A WRIT OF MANDAMUS,
CHALLENGING THE 7% REQUIREMENT AS "UNREASONABLY HIGH AND EXCESSIVE, . .
. DISPROPORTIONATE WHEN COMPARED TO THE 100 SIGNATURES REQUIRED FOR
PARTY CANDIDATES, /2/  . . . ARBITRARY AND CAPRICIOUS, . . . (AND) AN
INVIDIOUS DISCRIMINATION WITHOUT ANY RELATIONSHIP TO CONSTITUTIONALLY
JUSTIFIED ENDS . . . ."  HE URGED AS THE PROPER STANDARD FOR
DETERMINING THE SUFFICIENCY OF HIS NOMINATING PETITION THE 1%
REQUIREMENT THAT HAD PREVAILED FOR OVER 60 YEARS UNTIL THE ENACTMENT OF
THE 7% RULE IN 1952.  HE PRAYED FOR AN IMMEDIATE ORDER RESTRAINING THE
BOARD OF ELECTIONS FROM PRINTING THE ELECTION BALLOTS; ALSO FOR A WRIT
OF MANDAMUS COMMANDING THE BOARD "TO CERTIFY THE SUFFICIENCY OF
RELATOR'S NOMINATING PETITION" AND DIRECTING THE APPELLEES "TO DO ALL
THINGS NECESSARY TO PLACE RELATOR'S NAME UPON THE BALLOT AS AN
INDEPENDENT CANDIDATE FOR UNITED STATES HOUSE OF REPRESENTATIVES FROM
THE OHIO TWENTY-FIRST CONGRESSIONAL DISTRICT IN THE NOVEMBER 5, 1968,
GENERAL ELECTION . . . ."  HIS SUIT DID NOT PURPORT TO BE A CLASS
ACTION, AND HE SOUGHT NO DECLARATORY RELIEF. 

ON AUGUST 22, 1968, THE COURT OF COMMON PLEAS DENIED THE WRIT OF
MANDAMUS.  ON OCTOBER 1 THE COURT OF APPEALS FOR THE EIGHTH JUDICIAL
DISTRICT AFFIRMED THAT JUDGMENT, AND ON OCTOBER 23 THE SUPREME COURT OF
OHIO DISMISSED THE APPEAL FOR WANT OF A SUBSTANTIAL CONSTITUTIONAL
QUESTION.  THE APPELLANT THEN APPEALED TO THIS COURT PURSUANT TO 28
U.S.C. 1257, AND WE NOTED PROBABLE JURISDICTION, 393 U.S. 1078.  WHILE
THE APPEAL WAS PENDING HERE, OHIO AMENDED THE CONTROLLING STATUTE,
EFFECTIVE OCTOBER 30, 1969, REDUCING THE SIGNATURE REQUIREMENT FROM 7%
TO 4%. 

WE DO NOT THINK THE RECENT STATUTORY AMENDMENT HAS RENDERED THIS
CASE MOOT.  FOR THE APPELLANT HAS CONSISTENTLY URGED THE
UNCONSTITUTIONALITY OF ANY PERCENTAGE REQUIREMENT IN EXCESS OF THE 1%
THAT OHIO IMPOSED PRIOR TO 1952, AND HE OBTAINED THE SIGNATURES OF ONLY
ABOUT 1% OF THE VOTERS IN HIS DISTRICT.  HE THUS COULD NOT HAVE WON A
PLACE ON THE BALLOT EVEN UNDER THE STATUTE AS CURRENTLY WRITTEN.  CF.
HALL V. BEALS, POST.P. 45. 

RATHER, IN VIEW OF THE LIMITED NATURE OF THE RELIEF SOUGHT, WE THINK
THE CASE IS MOOT BECAUSE THE CONGRESSIONAL ELECTION IS OVER.  THE
APPELLANT DID NOT ALLEGE THAT HE INTENDED TO RUN FOR OFFICE IN ANY
FUTURE ELECTION.  HE DID NOT ATTEMPT TO MAINTAIN A CLASS ACTION ON
BEHALF OF HIMSELF AND OTHER PUTATIVE INDEPENDENT CANDIDATES, PRESENT OR
FUTURE.  HE DID NOT SUE FOR HIMSELF AND OTHERS SIMILARLY SITUATED AS
INDEPENDENT VOTERS, AS HE MIGHT HAVE UNDER OHIO LAW.  OHIO REV. CODE
ANN. SEC. 2307.21 (1953).  HE DID NOT SEEK A DECLARATORY JUDGMENT,
ALTHOUGH THAT AVENUE TOO WAS OPEN TO HIM.  OHIO REV. CODE ANN. SECS.
2721.01-2721.15 (1953). 

INSTEAD, HE SOUGHT ONLY A WRIT OF MANDAMUS TO COMPEL THE APPELLEES
TO PLACE HIS NAME ON THE BALLOT AS A CANDIDATE FOR A PARTICULAR OFFICE
IN A PARTICULAR ELECTION ON NOVEMBER 5, 1968.  IN OHIO MANDAMUS IS AN
EXTRAORDINARY REMEDY, AVAILABLE TO A PETITIONER ONLY ON A SHOWING OF
CLEAR LEGAL RIGHT.  STATE EX REL. GERSPACHER V. COFFINBERRY, 157 OHIO
ST. 32, 104 N.E.2D 1; STATE EX REL. STANLEY V. COOK, 146 OHIO ST. 348,
66 N.E.2D 207.  THE WRIT DOES NOT LIE TO REVIEW THE DETERMINATION BY A
BOARD OF ELECTIONS THAT A CANDIDATE IS INELIGIBLE TO ASSUME THE OFFICE
HE SEEKS OR THAT HIS PETITION IS INVALID, IN THE ABSENCE OF ALLEGATIONS
OF FRAUD, CORRUPTION, ABUSE OF DISCRETION, OR A CLEAR DISREGARD OF
STATUTES OR APPLICABLE LEGAL PRINCIPLES.  STATE EX REL. FLYNN V. BOARD
OF ELECTIONS, 164 OHIO ST. 193, 129 N.E.2D 623; CF. STATE EX REL. HANNA
V. MILBURN, 170 OHIO ST. 9, 11, 161 N.E.2D 891, 893.  IN THE INSTANT
SUIT THE COURT OF COMMON PLEAS RULED THAT THE APPELLANT "MUST NOT ONLY
ESTABLISH THAT THE ACT WHICH HE SEEKS TO COMPEL RESPONDENTS TO PERFORM
IS ONE THAT THEY ARE CONSTITUTIONALLY BOUND TO PERFORM BY VIRTUE OF
THEIR OFFICES, BUT ALSO THAT HE, THE RELATOR, HAS A CLEAR RIGHT TO HAVE
THE DUTY ENFORCED."  THE COURT, WITHOUT PASSING ON THE MERITS OF THE
LEGAL ISSUES RAISED BY THE PARTIES, FOUND THAT THE APPELLANT HAD NOT
ESTABLISHED A CLEAR LEGAL RIGHT TO THE WRIT ON THE BASIS OF ALL THE
EVIDENCE. 

IT IS NOW IMPOSSIBLE TO GRANT THE APPELLANT THE LIMITED,
EXTRAORDINARY RELIEF HE SOUGHT IN THE OHIO COURTS.  ACCORDINGLY, THE
JUDGMENT OF THE SUPREME COURT OF OHIO MUST BE VACATED, WITHOUT COSTS IN
THIS COURT, AND THE CAUSE REMANDED FOR SUCH PROCEEDINGS AS THAT COURT
MAY DEEM APPROPRIATE. 

              IT IS SO ORDERED. 

/1/ OHIO REV. CODE ANN. SEC. 3513.257 (SUPP. 1968) PROVIDED IN
PERTINENT PART: 

"THE NOMINATING PETITION OF AN INDEPENDENT CANDIDATE FOR THE OFFICE
OF . . . DISTRICT REPRESENTATIVE TO CONGRESS, SHALL BE SIGNED BY NOT
LESS THAN SEVEN PER CENT OF THE NUMBER OF ELECTORS WHO VOTED FOR
GOVERNOR AT THE NEXT PRECEDING REGULAR STATE ELECTION FOR THE OFFICE OF
GOVERNOR IN THE DISTRICT." 

/2/  UNDER OHIO LAW A CANDIDATE FOR THE NOMINATION OF A POLITICAL
PARTY TO THE OFFICE OF UNITED STATES REPRESENTATIVE MUST, IN ORDER TO
ENTER THE PARTY PRIMARY, OBTAIN FROM THE PARTY MEMBERSHIP WITHIN THE
CONGRESSIONAL DISTRICT THE SIGNATURES OF EITHER 100 VOTERS OF 5% OF
THOSE WHO VOTED IN THE LAST GUBERNATORIAL ELECTION, WHICHEVER IS LESS. 
OHIO REV. CODE ANN. SEC. 3513.05 (SUPP. 1968). 

BENJAMIN B. SHEERER ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WAS RALPH RUDD. 

ROBERT D. MACKLIN, ASSISTANT ATTORNEY GENERAL OF OHIO, ARGUED THE
CAUSE FOR APPELLEES.  ON THE BRIEF WERE PAUL W. BROWN, ATTORNEY
GENERAL, CHARLES S. LOPEMAN, FIRST ASSISTANT ATTORNEY GENERAL, AND
JULIUS J. NEMETH, ASSISTANT ATTORNEY GENERAL.  JOHN T. CORRIGAN AND
JOHN L. DOWLING FILED A BRIEF FOR APPELLEES CIPOLLONE ET AL.
..END :






HALL V. BEALS, 396 U.S. 45 


       HALL ET UX. V. BEALS, CLERK AND RECORDER OF EL PASO COUNTY,

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLORADO

        NO. 39.  ARGUED OCTOBER 14, 1969-- DECIDED NOVEMBER 24,

           1969 


APPELLANTS, WHO MOVED TO COLORADO IN JUNE 1968, WERE REFUSED
PERMISSION TO VOTE IN THE NOVEMBER 1968 PRESIDENTIAL ELECTION BECAUSE
THEY COULD NOT MEET COLORADO'S SIX-MONTH STATUTORY RESIDENCY
REQUIREMENT.  THEY BROUGHT THIS CLASS ACTION CHALLENGING THE
CONSTITUTIONALITY OF THAT RESTRICTION AND SEEKING, INTER ALIA, MANDAMUS
AND INJUNCTIVE RELIEF.  THE DISTRICT COURT UPHELD THE STATUTE AND
DISMISSED THE COMPLAINT.  AFTER APPELLANTS APPEALED TO THIS COURT, THE
RESIDENCY PERIOD FOR PRESIDENTIAL ELECTIONS WAS REDUCED TO TWO MONTHS,
AND APPELLANTS ALSO CHALLENGE THAT REQUIREMENT IN THIS COURT.  HELD: 

1.  THE AMENDMENT OF THE RESIDENCY STATUTE, UNDER WHICH APPELLANTS
COULD HAVE VOTED IN THE 1968 ELECTION, HAS MOOTED THIS CASE. 

2.  APPELLANTS CANNOT REPRESENT A CLASS (HERE COLORADO VOTERS
DISQUALIFIED BY THE TWO-MONTH REQUIREMENT) TO WHICH THEY NEVER
BELONGED. 

3.  THE CONTINGENCIES WHICH WOULD HAVE TO OCCUR BEFORE APPELLANTS
COULD BE DISENFRANCHISED IN COLORADO IN THE NEXT PRESIDENTIAL ELECTION
ARE TOO SPECULATIVE TO WARRANT THIS COURT'S PASSING ON THE SUBSTANTIVE
ISSUES OF THIS CASE.  MOORE V. OGILVIE, 394 U.S. 814, DISTINGUISHED. 

292 F.SUPP.  610, VACATED AND REMANDED. 

PER CURIAM. 

THE APPELLANTS MOVED FROM CALIFORNIA TO COLORADO IN JUNE 1968.  THEY
SOUGHT TO REGISTER TO VOTE IN THE ENSUING NOVEMBER PRESIDENTIAL
ELECTION, BUT WERE REFUSED PERMISSION BECAUSE THEY WOULD NOT ON
ELECTION DAY HAVE SATISFIED THE SIX-MONTH RESIDENCY REQUIREMENT THAT
COLORADO THEN IMPOSED FOR ELIGIBILITY TO VOTE IN SUCH AN ELECTION.  /1/
THE APPELLANTS THEN COMMENCED THE PRESENT CLASS ACTION AGAINST THE
APPELLEES, ELECTORAL OFFICIALS OF EL PASO COUNTY, COLORADO.  THEIR
COMPLAINT CHALLENGED THE SIX-MONTH RESIDENCY REQUIREMENT AS A VIOLATION
OF THE EQUAL PROTECTION, DUE PROCESS, AND PRIVILEGE AND IMMUNITIES
CLAUSES OF THE CONSTITUTION.  FOR RELIEF THEY SOUGHT (1) A WRIT OF
MANDAMUS COMPELLING THE APPELLEES TO REGISTER THEM FOR THE UPCOMING
PRESIDENTIAL ELECTION; (2) AN INJUNCTION RESTRAINING THE ENFORCEMENT
AND OPERATION OF THE COLORADO RESIDENCY LAWS INSOFAR AS THEY APPLIED TO
THE PRESIDENTIAL ELECTION; AND (3) A DIRECTION THAT THE APPELLEES
REGISTER THE APPELLANTS AND ALLOW THEM TO VOTE "ON A CONDITIONAL BASIS,
SO THAT SHOULD EITHER PARTY CHOOSE TO APPEAL TO THE SUPREME COURT OF
THE UNITED STATES AND SUCH APPEAL SHOULD RUN PAST THE TIME OF THE
NATIONAL ELECTION ON NOVEMBER 5, 1968, . . . THE RELIEF SOUGHT BY (THE
APPELLANTS WILL) NOT BECOME MOOT."  /2/ 

ON OCTOBER 30 THE THREE-JUDGE DISTRICT COURT ENTERED JUDGMENT FOR
THE APPELLEES AND DISMISSED THE COMPLAINT, HOLDING THAT THE SIX-MONTH
REQUIREMENT WAS NOT UNCONSTITUTIONAL.  HALL V. BEALS, 292 F.SUPP.  610
(D.C. COLO.).  /3/  AS A RESULT THE APPELLANTS DID NOT VOTE IN THE 1968
PRESIDENTIAL ELECTION.  THEY TOOK A DIRECT APPEAL TO THIS COURT
PURSUANT TO 28 U.S.C. 1253, AND WE NOTED PROBABLE JURISDICTION, 394
U.S. 1011.  THEREAFTER THE COLORADO LEGISLATURE REDUCED THE RESIDENCY
REQUIREMENT FOR A PRESIDENTIAL ELECTION FROM SIX MONTHS TO TWO MONTHS. 

THE 1968 ELECTION IS HISTORY, AND IT IS NOW IMPOSSIBLE TO GRANT THE
APPELLANTS THE RELIEF THEY SOUGHT IN THE DISTRICT COURT.  FURTHER, THE
APPELLANTS HAVE NOW SATISFIED THE SIX-MONTH RESIDENCY REQUIREMENT OF
WHICH THEY COMPLAINED.  BUT APART FROM THESE CONSIDERATIONS, THE RECENT
AMENDATORY ACTION OF THE COLORADO LEGISLATURE HAS SURELY OPERATED TO
RENDER THIS CASE MOOT.  WE REVIEW THE JUDGMENT BELOW IN LIGHT OF THE
COLORADO STATUTE AS IT NOW STANDS, NOT AS IT ONCE DID.  THORPE V.
HOUSING AUTHORITY, 393 U.S. 268, 281-282; UNITED STATES V. ALABAMA, 362
U.S. 602, 604; HINES V. DAVIDOWITZ, 312 U.S. 52, 60; CARPENTER V.
WABASH R. CO., 309 U.S. 23, 26-27; UNITED STATES V. SCHOONER PEGGY, 1
CRANCH 103, 110.  AND UNDER THE STATUTE AS CURRENTLY WRITTEN, THE
APPELLANTS COULD HAVE VOTED IN THE 1968 PRESIDENTIAL ELECTION.  THE
CASE HAS THEREFORE LOST ITS CHARACTER AS A PRESENT, LIVE CONTROVERSY OF
THE KIND THAT MUST EXIST IF WE ARE TO AVOID ADVISORY OPINIONS ON
ABSTRACT PROPOSITIONS OF LAW.  GOLDEN V. ZWICKLER, 394 U.S. 103, 110;
BAKER V. CARR, 369 U.S. 186, 204; MILLS V. GREEN, 159 U.S. 651, 653. 

THE APPELLANTS OBJECT NOW TO THE TWO-MONTH RESIDENCY REQUIREMENT AS
VIGOROUSLY AS THEY DID TO THE SIX-MONTH RULE IN EFFECT WHEN THEY
BROUGHT SUIT.  THEY SAY THAT SUCH STATUTES, IN COLORADO AND ELSEWHERE,
CONTINUE TO HAVE AN ADVERSE EFFECT UPON MILLIONS OF VOTERS THROUGHOUT
THE NATION.  BUT THE APPELLANTS' OPPOSITION TO RESIDENCY REQUIREMENTS
IN GENERAL CANNOT ALTER THE FACT THAT SO FAR AS THEY ARE CONCERNED
NOTHING IN THE COLORADO LEGISLATIVE SCHEME AS NOW WRITTEN ADVERSELY
AFFECTS EITHER THEIR PRESENT INTERESTS, OR THEIR INTERESTS AT THE TIME
THIS LITIGATION WAS COMMENCED.  NOR DOES THE RESULT DIFFER BECAUSE THE
APPELLANTS DENOMINATED THEIR SUIT A CLASS ACTION ON BEHALF OF
DISENFRACHISED VOTERS.  THE APPELLANTS "CANNOT REPRESENT A CLASS OF
(WHICH) THEY ARE NOT A PART," BAILEY V. PATTERSON, 369 U.S. 31, 32-33--
THAT IS, THE CLASS OF VOTERS DISQUALIFIED IN COLORADO BY VIRTUE OF THE
NEW TWO-MONTH REQUIREMENT, A CLASS OF WHICH THE APPELLANTS HAVE NEVER
BEEN MEMBERS. 

NOTHIN IN MOORE V. OGILVIE, 394 U.S. 814, IS TO THE CONTRARY.  THERE
WE INVALIDATED AN ILLINOIS STATUTE REQUIRING THAT INDPENDENT CANDIDATES
FOR PRESIDENTIAL ELECTOR OBTAIN SIGNATURES ON THEIR NOMINATING
PETITIONS FROM VOTERS DISTRIBUTED THROUGH THE STATE.  WE NOTED THAT
EVEN THOUGH THE 1968 ELECTION WAS OVER, "THE BURDEN . . . PLACED ON THE
NOMINATION OF CANDIDATES FOR STATEWIDE OFFICES REMAINS AND CONTROLS
FUTURE ELECTIONS, AS LONG AS ILLINOIS MAINTAINS HER PRESENT SYSTEM AS
SHE HAS DONE SINCE 1935."  394 U.S.,AT 816.  THE PROBLEM BEFORE NOT
ONLY BECAUSE THE SAME RESTRICTION ON MOORE'S CANDIDACY THAT HAD
ADVERSELY AFFECTED HIM IN 1968 COULD DO SO AGAIN IN 1972, BUT BECAUSE
ILLINOIS, FAR FROM HAVING ALTERED ITS STATUTORY SCHEME FOR THE FUTURE
BENEFIT OF THOSE SITUATED SIMILARLY TO MOORE, HAD ADHERED FOR OVER 30
YEARS TO THE SAME ELECTORAL POLICY WITH NO INDICATION OF CHANGE. 

HERE, BY CONTRAST, THE APPELLANTS WILL FACE DISENFRANCHISEMENT IN
COLORADO IN 1972 ONLY IN THE UNLIKELY EVENT THAT THEY FIRST MOVE OUT OF
THE STATE AND THEN RE-ESTABLISH RESIDENCE THERE WITHIN TWO MONTHS OF
THE PRESIDENTIAL ELECTION IN THAT YEAR.  OR THEY MAY TAKE UP RESIDENCE
IN SOME OTHER STATE, AND IN 1972 FACE DISQUALIFICATION UNDER THAT
STATE'S LAW.  BUT SUCH SPECULATIVE CONTINGENCIES AFFORD NO BASIS FOR
OUR PASSING ON THE SUBSTANTIVE ISSUES THE APPELLANTS WOULD HAVE US
DECIDE WITH RESPECT TO THE NOW-AMENDED LAW OF COLORADO.  GOLDEN V.
ZWICKLER, SUPRA. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE IS
REMANDED WITH DIRECTIONS TO DISMISS THE CAUSE AS MOOT. 

IT IS SO ORDERED. 

/1/  COLO. REV. STAT. ANN. SEC. 49-24-1 (1963) PROVIDED: 

"ELIGIBILITY OF NEW RESIDENT TO VOTE.-- ANY CITIZEN OF THE UNITED
STATES WHO SHALL HAVE ATTAINED THE AGE OF TWENTY-ONE YEARS, SHALL HAVE
RESIDED IN THIS STATE NOT LESS THAN SIX MONTHS NEXT PRECEDING THE
ELECTION AT WHICH HE OFFERS TO VOTE, IN THE COUNTY OR CITY AND COUNTY
NOT LESS THAN NINETY DAYS, AND IN THE PRECINCT NOT LESS THAN FIFTEEN
DAYS, AND SHALL HAVE THE RIGHT TO VOTE AS A NEW RESIDENT FOR
PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTORS." 

THE APPELLANT RICHARD HALL WENT TO THE OFFICE OF THE APPELLEE BEALS
ON OR ABOUT AUGUST 1, 1968, TO REQUEST THAT HIS WIFE AND HE BE ALLOWED
TO VOTE IN THE PRESIDENTIAL ELECTION.  UPON DENIAL OF HIS APPLICATION,
HE WROTE TO THE COLORADO SECRETARY OF STATE TO ASK THAT HIS WIFE AND HE
BE ALLOWED TO VOTE DESPITE THE SIX-MONTH RESIDENCY HIS WIFE AND HE BE
ALLOWED TO VOTE DESPITE THE SIX-MONTH RESIDENCY REQUIREMENT.  ON
SEPTEMBER 6 THE STATE ELECTION OFFICE INFORMED THE APPELLANTS THEY
WOULD NOT BE PERMITTED TO VOTE. 

APART FROM THE SPECIAL PROVISION RELATING TO THE ELIGIBILITY OF NEW
RESIDENTS TO VOTE IN A PRESIDENTIAL ELECTION, COLORADO REQUIRES THAT
PERSONS DESIRING TO VOTE IN GENERAL, PRIMARY, AND SPECIAL ELECTIONS
MUST HAVE RESIDED IN THE STATE FOR ONE YEAR.  COLO. REV. STAT. ANN.
SEC. 49-3-1(1)(C) (1963). 

/2/  THE REQUEST FOR RELIEF CONTINUED: 

"SHOULD PLAINTIFFS WIN AN EVENTUAL APPEAL, THE DEFENDANT ELECTION
OFFICIALS SHALL BE DIRECTED TO COUNT PLAINTIFFS' VOTES AS NORMALLY CAST
AND VALID BALLOTS; SHOULD PLAINTIFFS LOSE ON FINAL APPEAL TO THE
SUPREME COURT OF THE UNITED STATES, DEFENDANT ELECTION OFFICIALS SHALL
DESTROY PLAINTIFFS' BALLOTS AS IF THEY HAD NEVER BEEN CAST.  THIS
CONDITIONAL REGISTRATION IS THE ONLY WAY PLAINTIFFS' SOUGHT-FOR RELIEF
CAN BE PRESERVED SHOULD AN APPEAL BY EITHER PARTY RUN PAST THE DATE OF
THE NATIONAL ELECTION IN QUESTION." 

/3/  THE OPINION OF THE DISTRICT COURT WAS ISSUED ON NOVEMBER 29,
1968. 

MR. JUSTICE BRENNAN, DISSENTING. 

I DISSENT FROM THE DIRECTION TO DISMISS THIS CASE AS MOOT.  MOORE V.
OGILVIE, 394 U.S. 814 (1969), INVOLVED A CHALLENGE TO THE
CONSTITUTIONALITY OF A STATUTE WHICH HAD BEEN INVOKED TO DENY THE
APPELLANTS A PLACE ON THE 1968 BALLOT.  WE WERE NOT PERSUADED IN THAT
CASE BY THE ARGUMENT THAT THE APPEAL SHOULD BE DISMISSED SINCE THE 1968
ELECTION HAD BEEN HELD AND THERE WAS NO POSSIBILITY OF GRANTING ANY
RELIEF TO APPELLANTS.  EVEN THOUGH APPELLANTS DID NOT ALLEGE THEY WOULD
SEEK A PLACE ON THE BALLOT AT FUTURE ELECTIONS, WE HELD THAT THE
CONSTITUTIONAL QUESTION WAS ONE "CAPABLE OF REPETITION, YET EVADING
REVIEW," SOUTHERN PACIFIC TERMINAL CO. V. ICC, 219 U.S. 498, 515
(1911), AND, THEREFORE, THAT MOOTNESS WOULD NOT PREVENT OUR DECISION OF
ITS MERITS.  IN MY VIEW THE PRESENT CASE IS AN EVEN STRONGER ONE FOR
APPLICATION OF THAT PR-NCIPLE.  AT STAKE HERE IS THE FUNDAMENTAL RIGHT
TO VOTE-- THE RIGHT "PRESERVATIVE OF OTHER BASIC CIVIL AND POLITICAL
RIGHTS," REYNOLDS V. SIMS, 377 U.S. 533, 562 (1964); SEE ALSO HARPER V.
VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663, 670 (1966), AND THE
CONSTITUTIONAL CHALLENGE OF THE AMENDED COLORADO STATUTE IS PECULIARLY
EVASIVE OF REVIEW.  THIS IS BECAUSE ORDINARILY A PERSON'S STANDING TO
MAKE THAT CHALLENGE WOULD NOT MATURE UNLESS HE HAD BECOME A COLORADO
RESIDENT WITHIN TWO MONTHS PRIOR TO A PRESIDENTIAL ELECTION.  BARRING
RESORT TO EXTRAORDINARY EXPEDIENTS, THAT INTERVAL IS OBVIOUSLY TOO
SHORT FOR THE EXHAUSTION OF STATE ADMINISTRATIVE REMEDIES AND THE
COMPLETION OF A LAWSUIT THROUGH FILING OF THE COMPLAINT IN A FEDERAL
DISTRICT COURT, CONVENING OF A THREE-JUDGE COURT, TRIAL, AND REVIEW BY
THIS COURT.  /1/ TRUE, TODAY'S VIRTUAL FORECLOSURE OF ANY OPPORTUNITY
FOR DEFINITIVE JUDICIAL REVIEW MAY IN SOME MEASURE BE PREVENTED BY
RESORT TO WAIVER OF THE REQUIREMENT OF EXHAUSTION OF ADMINISTRATIVE
REMEDIES, PREFERRED CALENDAR POSITION, OR EVEN RELAXATION OF THE RULES
OF RIPENESS TO PERMIT A PERSON NOT YET A RESIDENT TO CHALLENGE THE
STATUTE ON A SHOWING OF REASONABLE CERTAINTY THAT HE WOULD BE MOVING TO
THE STATE WITHIN THE TWO-MONTH PERIOD.  BUT THE DIFFICULTIES WHICH
ATTEND THESE EXPEDIENTS ONLY BUTTRESS MY CONCLUSION THAT IF MOOTNESS
DID NOT BAR DECISION OF THE CONSTITUTIONAL QUESTION IN MOORE V.
OGILVIE, THERE IS EVEN MORE REASON TO HOLD THAT MOOTNESS DOES NOT BAR
DECISION OF THE CONSTITUTIONAL QUESTION PRESENTED HERE. 

REACHING THE MERITS, I WOULD REVERSE FOR THE REASONS STATED BY MR.
JUSTICE MARSHALL IN HIS DISSENTING OPINION, WHICH I JOIN. 

/1/  THE PROCEEDINGS WOULD PROBABLY REQUIRE EVEN MORE TIME IF THE
PLAINTIFF SUED IN STATE COURT, FOR REVIEW IN THIS COURT WOULD COME ONLY
AFTER ONE OR MORE LEVELS OF STATE APPELLATE REVIEW. 

MR. JUSTICE MARSHALL, WHOM MR. JUSTICE BRENNAN JOINS, DISSENTING. 

I AGREE WITH MY BROTHER BRENNAN THAT THIS CASE IS NOT MOOT.  IT
INVOLVES ONE OF THOSE PROBLEMS "'CAPABLE OF REPETITION, YET EVADING
REVIEW,'" THAT CALL FOR RELAXATION OF TRADITIONAL CONCEPTS OF MOOTNESS
SO THAT APPELLATE REVIEW OF IMPORTANT CONSTITUTIONAL DECISIONS NOT BE
PERMANENTLY FRUSTRATED.  MOORE V. OGILVIE, 394 U.S. 814, 816 (1969). 

INDEED, ONE OF THE UNFORTUNATE CONSEQUENCES OF A RIGID VIEW OF
MOOTNESS IN CASES SUCH AS THIS IS THAT THE STATE AND LOWER FEDERAL
COURTS MAY WELL BE LEFT AS THE COURTS OF LAST RESORT FOR CHALLENGES OF
RELATIVELY SHORT STATE RESIDENCY REQUIREMENTS.  THOSE COURTS MAY, AS
THE DISTRICT COURT APPARENTLY DID IN THIS CASE, CONSIDER THEMSELVES
BOUND BY THIS COURT'S SUMMARY PER CURIAM AFFIRMANCE IN DRUEDING V.
DEVLIN, 380 U.S. 125 (1965), AFF'G 234 F.SUPP.  721 (D.C. MD. 1964),
WHICH UPHELD A ONE-YEAR RESIDENCY REQUIREMENT FOR VOTING IN A
PRESIDENTIAL ELECTION.  IT SEEMS TO ME CLEAR THAT DRUEDING IS NOT GOOD
LAW TODAY.  THE DIFFICULTIES OF ACHIEVING REVIEW IN THIS COURT IN CASES
OF THIS SORT, COMBINED WITH THIS MISLEADING PRECEDENT, LEAD ME TO
INDICATE BRIEFLY MY VIEW OF THE MERITS OF THE CASE BEFORE US. 

IN DRUEDING, THE DISTRICT COURT TESTED THE RESIDENCY REQUIREMENT
THERE CHALLENGED BY THE EQUAL-PROTECTION STANDARD APPLIED TO ORDINARY
STATE REGULATIONS:  THAT IS, RESTRICTIONS NEED BEAR ONLY SOME RATIONAL
RELATIONSHIP TO A LEGITIMATE END.  234 F.SUPP.,AT 724-725, CITING
MCGOWAN V. MARYLAND, 366 U.S. 420, 425 (1961).  BUT IF IT WAS NOT CLEAR
IN 1965 IT IS CLEAR NOW THAT ONCE A STATE HAS DETERMINED THAT A
DECISION IS TO BE MADE BY POPULAR VOTE, IT MAY EXCLUDE PERSONS FROM THE
FRANCHISE ONLY UPON A SHOWING OF A COMPELLING INTEREST, AND EVEN THEN
ONLY WHEN THE EXCLUSION IS THE LEAST RESTRICTIVE METHOD OF ACHIEVING
THE DESIRED PURPOSE.  HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S.
663, 667 (1966); KRAMER V. UNION SCHOOL DISTRICT, 395 U.S. 621, 626-628
(1969).  CLOSE SCRUTINY IS THUS DEMANDED OF COLORADO'S REQUIREMENT THAT
IN ORDER TO VOTE FOR PRESIDENT AND VICE PRESIDENT, ONE MUST NOT ONLY BE
A RESIDENT OF THAT STATE, BUT ONE MUST HAVE BEEN A RESIDENT FOR A
CERTAIN TIME BEFORE THE ELECTION-- SIX MONTHS WHEN THIS SUIT WAS
BROUGHT; NOW, TWO MONTHS. 

IN SUPPORT OF THIS REQUIREMENT, IT IS URGED THAT THE ELECTORAL COLLEGE
SYSTEM AS EMBODIED IN THE CONSTITUTION CONTEMPLATES THE ELECTION OF THE
PRESIDENT AND VICE PRESIDENT, NOT BY THE NATION AS SUCH, BUT RATHER BY
THE INDIVIDUAL STATES, EACH ACTING AS A COMMUNITY.  HENCE, THE ARGUMENT
GOES, EACH STATE MAY LEGISLATE TO ENSURE THAT THOSE VOTING FOR ITS
PRESIDENTIAL ELECTORS ARE TRULY MEMBERS OF THE STATE COMMUNITY.     THE
ARGUMENT IS SURELY CORRECT AS FAR AS IT GOES, AND THIS COURT HAS OFTEN
REAFFIRMED THE POWER OF THE STATES TO REQUIRE THEIR VOTERS TO BE BONA
FIDE RESIDENTS.  CARRINGTON V. RASH, 380 U.S. 89, 93-94 (1965); KRAMER
V. UNION SCHOOL DISTRICT, SUPRA, AT 625.  BUT THIS DOES NOT JUSTIFY OR
EXPLAIN THE EXCLUSION FROM THE FRANCHISE OF PERSONS, NOT BECAUSE THEIR
BONA FIDE RESIDENCY IS QUESTIONED, BUT BECAUSE THEY ARE RECENT RATHER
THAN LONGTIME RESIDENTS.  /1/ 

NOR IS IT A JUSTIFICATION TO SAY THAT THE STATE HAS CERTAIN
PAROCHIAL INTERESTS AT STAKE IN THE ELECTION OF A PRESIDENT, AND THAT
IT MAY REQUIRE OF ITS VOTERS A PERIOD OF RESIDENCY SUFFICIENTLY LENGTHY
TO IMPRESS UPON THEM THE LOCAL VIEWPOINT.  THIS IS PRECISELY THE SORT
OF ARGUMENT THAT THIS COURT, IN CARRINGTON V. RASH, SUPRA, FOUND
INSUFFICIENT TO JUSTIFY TEXAS' EXCLUSION FROM VOTING IN STATE ELECTIONS
OF SERVICEMEN WHO HAD ACQUIRED TEXAS RESIDENCY AFTER THEY HAD ENTERED
THE SERVICE.  THE STATE ARGUED THAT MILITARY MEN NEWLY MOVED TO TEXAS
MIGHT NOT HAVE LOCAL INTERESTS SUFFICIENTLY AT HEART.  THIS COURT
REPLIED: 

     "BUT IF THEY ARE IN FACT RESIDENTS, WITH THE INTENTION OF

  MAKING TEXAS THEIR HOME INDEFINITELY, THEY, AS ALL OTHER

  QUALIFIED RESIDENTS, HAVE A RIGHT TO AN EQUAL OPPORTUNITY FOR

  POLITICAL REPRESENTATION . . . . 'FENCING OUT' FROM THE FRANCHISE

  A SECTOR OF THE POPULATION BECAUSE OF THE WAY THEY MAY VOTE IS

  CONSTITUTIONALLY IMPERMISSIBLE."  380 U.S.,AT 94. 

SIMILARLY HERE, THE FACT THAT NEWLY ARRIVED COLORADANS MAY HAVE A MORE
NATIONAL OUTLOOK THAN LONGTIME RESIDENTS, OR EVEN MAY RETAIN A
VIEWPOINT CHARACTERISTIC OF THE REGION FROM WHICH THEY HAVE COME, IS A
CONSTITUTIONALLY IMPERMISSIBLE REASON FOR DEPRIVING THEM OF THEIR
CHANCE TO INFLUENCE THE ELECTORAL VOTE OF THEIR NEW HOME STATE. 

NOR DOES IT SUFFICE TO ARGUE THAT A DURATIONAL RESIDENCY REQUIREMENT
ENSURES THAT VOTERS HAVE HAD THE TIME TO GAIN KNOWLEDGE OF LOCAL
ISSUES, AS DISTINGUISHED FROM INDOCTRINATION IN LOCAL ATTITUDES.  EVEN
IF IT CAN BE ASSUMED THAT NEW RESIDENTS, ISSUES OF THIS SORT PLAY SO
SMALL A PART IN THE ELECTION OF THE PRESIDENT AND VICE PRESIDENT TODAY
THAT THIS CAN HARDLY BE CONSIDERED A COMPELLING INTEREST SUFFICIENT TO
JUSTIFY ENTIRELY DEPRIVING MILLIONS OF AMERICANS OF ANY OPPORTUNITY TO
VOTE FOR THEIR MOST IMPORTANT LEADERS.  CF. KRAMER V. UNION SCHOOL
DISTRICT, SUPRA, AT 633. 

THE APPELLEES ARGUE THAT THE STATE'S DURATIONAL RESIDENCY
REQUIREMENT IS NECESSARY TO ENSURE THE PURITY OF ITS ELECTIONS.  THE
IMPURITIES FEARED ("DUAL VOTING" AND "COLONIZATION") ALL INVOLVE THE
SAME EVIL-- VOTING BY NONRESIDENTS, EITHER SINGLY OR IN BLOCKS.  BUT IT
IS DIFFICULT TO SEE HOW THE DURATIONAL RESIDENCY REQUIREMENT IN ANY WAY
PROTECTS AGAINST NONRESIDENT VOTING.  THE QUALIFICATIONS OF THE WOULD
BE VOTER IN COLORADO ARE DETERMINED WHEN HE REGISTERS TO VOTE, WHICH HE
MAY DO UNTIL 20 DAYS BEFORE THE ELECTION.  COLO. REV. STAT. ANN. SEC.
49-4-2(1) (SUPP. 1965).  AT THAT TIME, HE ESTABLISHES HIS
QUALIFICATIONS, INCLUDING DURATIONAL RESIDENCE, BY OATH.  COLO. REV.
STAT. ANN. SEC. 49-4-17 (SUPP. 1965.)  THE NONRESIDENT, SEEKING TO
VOTE, CAN AS EASILY FALSELY SWEAR THAT HE HAS BEEN A RESIDENT FOR A
CERTAIN TIME, AS HE COULD FALSELY SWEAR THAT HE IS PRESENTLY A
RESIDENT.  THE REQUIREMENT OF THE ADDITIONAL ELEMENT TO BE SWORN-- THE
DURATION OF RESIDENCY-- ADDS NO DISCERNIBLE PROTECTION AGAINST "DUAL
VOTING" OR "COLONIZATION" BY VOTERS WILLING TO LIE.  INSOFAR AS APPEARS
FROM THE COLORADO ELECTION LAWS, AND FROM THE RECORD IN THIS CASE, THE
STATE MAKES NO INDEPENDENT ATTEMPT TO GO BEHIND THE VOTER'S OATH TO
DETERMINE HIS QUALIFICATIONS.  SEE COLO. REV. STAT. ANN. SEC. 49-13
(SUPP. 1965). 

MOREOVER, EVEN IF AN ENFORCEMENT EFFORT WERE MADE TO PREVENT
NONRESIDENT VOTING, AND THE EXCLUSION OF THOSE TAKING UP RESIDENCY
WITHIN TWO MONTHS OF THE ELECTION WERE USED AS A METHOD OF ELIMINATING
CASES ON THE BORDERLINE BETWEEN NEW RESIDENTS AND MERE VISITORS, SUCH
AN APPROACH WOULD BE CONSTITUTIONALLY OVERBROAD.  IN CARRINGTON V.
RASH, SUPRA, THE STATE SIMILARLY ARGUED THAT IT WAS IN MANY INSTANCES
DIFFICULT TO TELL WHETHER PERSONS MOVING TO TEXAS WHILE THEY WERE IN
THE SERVICE HAD THE GENUINE INTENT TO REMAIN THAT ESTABLISHES
RESIDENCY.  THUS, THE ARGUMENT WENT, THE ADMINISTRATIVE CONVENIENCE OF
AVOIDING DIFFICULT FACTUAL DETERMINATIONS JUSTIFIED A BLANKET EXCLUSION
OF ALL THOSE IN THE DOUBTFUL CATEGORY.  THE COURT REJECTED SUCH A
"CONCLUSIVE PRESUMPTION" APPROACH, NOTING THAT "STATES MAY NOT CASUALLY
DEPRIVE A CLASS OF INDIVIDUALS OF THE VOTE BECAUSE OF SOME REMOTE
ADMINISTRATIVE BENEFIT TO THE STATE."  380 U.S.,AT 96.  CF. HARMAN V.
FORSSENIUS, 380 U.S. 528, 542-543 (1965). 

SIMILARLY HERE, A CONCLUSIVE PRESUMPTION THAT A RECENTLY ESTABLISHED
RESIDENT IS NOT A RESIDENT AT ALL FOR VOTING PURPOSES IS SIMPLY AN
OVERBROAD BURDEN UPON THE RIGHT TO VOTE.  IN MOST CASES, IT IS NO MORE
DIFFICULT TO DETERMINE WHETHER ONE RECENTLY ARRIVED IN THE COMMUNITY
HAS SUFFICIENT INTENT TO REMAIN TO QUALIFY AS A RESIDENT THAN IT IS TO
MAKE A SIMILAR DETERMINATION FOR AN OLDER INHABITANT.  /2/  THAT THERE
ARE BORDERLINE CASES AMONG THE NEW ARRIVALS IS NOT A CONSTITUTIONALLY
SUFFICIENT REASON FOR DENYING THE VOTE TO THOSE WHO HAVE SETTLED IN
GOOD FAITH. 

FINALLY, APPELLEES ARGUE THAT THE LOGISTICS OF PREPARING FOR AN
ELECTION REQUIRE THAT THERE BE SOME TIME BETWEEN THE CLOSE OF
REGISTRATION AND THE ELECTION ITSELF.  THIS PERIOD SERVES AS A KIND OF
RESIDENCY REQUIREMENT, IN THAT PERSONS ESTABLISHING RESIDENCY AFTER THE
VOTING LISTS ARE CLOSED ARE BARRED FROM VOTING.  YET THIS REQUIREMENT
IS JUSTIFIED BY COMPELLING ADMINISTRATIVE NEEDS.  AND, IT IS ARGUED,
ONCE SOME PERIOD OF THIS SORT IS CONCEDED TO BE REQUIRED, IT IS
ARBITRARY FOR THE COURTS TO DETERMINE AS A MATTER OF CONSTITUTIONAL LAW
HOW LONG IT MAY BE. 

BUT THIS ARGUMENT IS UNCONVINCING HERE.  COLORADO HAS APPARENTLY
JUDGED THAT ADMINISTRATIVE NEEDS REQUIRE 20 DAYS BETWEEN THE CLOSE OF
REGISTRATION AND ELECTION DAY.  COLO. REV. STAT. ANN. SEC. 49-4-2(2)
(SUPP. 1965).  APPELLANTS HAVE NOT CHALLENGED THIS STATUTE.  WHAT THEY
HAVE CHALLENGED IS THE SEPARATE AND ADDITIONAL REQUIREMENT THAT VOTERS,
ALL OF WHOM REGISTER BEFORE THE 20-DAY CUTOFF DATE, ALSO MUST HAVE BEEN
RESIDENTS OF THE STATE AT LEAST SIX MONTHS-- BY RECENT AMENDMENT TWO
MONTHS-- BEFORE THE ELECTION.  COLO. REV. STAT. ANN. SEC. 49-24-1
(1963).  FOR THE ARGUMENT FROM LOGISTICAL NEED TO SAVE THE DURATIONAL
RESIDENCY REQUIREMENT, THE STATE WOULD HAVE TO SHOW SOME ADDITIORAL
ADMINISTRATIVE NEED FOR THIS FURTHER BURDEN ON THE RIGHT TO VOTE.  NO
SUCH SHOWING HAS BEEN MADE.  IN MY VIEW THE COLORADO DURATIONAL
RESIDENCY REQUIREMENT FOR VOTERS FOR PRESIDENT AND VICE PRESIDENT
VIOLATES THE EQUAL PROTECTION CLAUSE, AND APPELLANTS ARE ENTITLED TO
REVERSAL OF THE DISTRICT COURT JUDGMENT THAT UPHELD THAT REQUIREMENT. 

/1/  POPE V. WILLIAMS, 193 U.S. 621 (1904), UPHELD A ONE-YEAR
RESIDENCY REQUIREMENT FOR VOTING IN STATE ELECTIONS.  THE COURT
SPECIFICALLY RESERVED THE QUESTION OF DURATIONAL RESIDENCY REQUIREMENTS
AS APPLIED TO VOTING IN PRESIDENTIAL ELECTIONS.  ID., AT 633.  IN ANY
CASE, POPE WAS DECIDED LONG BEFORE APPLICATION OF THE "COMPELLING
INTEREST" TEST TO RESTRICTIONS ON THE FRANCHISE. 

/2/  FOR INSTANCE, THE APPELLANTS IN THIS CASE, BEFORE APPLYING FOR
THEIR BALLOTS, HAD BOUGHT A HOME IN COLORADO SPRINGS, REGISTERED THEIR
CAR WITH THE COLORADO DEPARTMENT OF MOTOR VEHICLES, ACQUIRED COLORADO
DRIVERS' LICENSES, AND REGISTERED THEIR ELDEST CHILD IN A PRIVATE
NURSERY SCHOOL; FURTHER, MR. HALL HAD TAKEN PERMANENT EMPLOYMENT WITH A
LAW FIRM IN COLORADO SPRINGS. 

RICHARD HALL ARGUED THE CAUSE PRO SE AND FOR OTHER APPELLANT. 

BERNARD R. BAKER ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WERE CARROLL E. MULTZ AND ROBERT L. RUSSEL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL LEONARD, LOUIS F.
CLAIBORNE, AND FRANCIS X. BEYTAGH, JR., FOR THE UNITED STATES; BY
WILLIAM F. REYNARD, MELVIN L. WULF, AND ELEANOR HOLMES NORTON FOR THE
AMERICAN CIVIL LIBERTIES UNION ET AL.; BY JOSEPH L. RAUH, JR., JOHN
SILARD, AND ELLIOTT C. LICHTMAN FOR THE BIPARTISAN COMMITTEE ON
ABSENTEE VOTING; AND BY HARVEY M. BURG. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND BRENDA SOLOFF, ASSISTANT ATTORNEY
GENERAL, FILED A BRIEF FOR THE STATE OF NEW YORK AS AMICUS CURIAE
URGING AFFIRMANCE. 
..END :














LAWRENCE V. CITY OF CHICAGO, 396 U.S. 39 


       LAWRENCE ET AL. V. CITY OF CHICAGO

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 509.  DECIDED NOVEMBER 17, 1969 


42 ILL.2D 461, 248 NE.2D 71, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

JOHN M. BOWLUS FOR APPELLANTS. 

RAYMOND F. SIMON, MARVIN E. ASPEN, AND JOHN J. GEORGE FOR APPELLEE. 

..END :






O'LEARY V. KENTUCKY, 396 U.S. 40 


       O'LEARY ET AL. V. KENTUCKY

        APPEAL FROM THE COURT OF APPEALS OF KENTUCKY

        NO. 526.  DECIDED NOVEMBER 17, 1969 


441 S.W.2D 150, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED.  4##DOP 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

ROBERT ALLEN SEDLER FOR APPELLANTS. 

JOHN B. BRECKINRIDGE, ATTORNEY GENERAL OF KENTUCKY, AND GEORGE F.
RABE, ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :






DEBACKER V. BRAINARD, 396 U.S. 28 


       DEBACKER V. BRAINARD, SHERIFF

        APPEAL FROM THE SUPREME COURT OF NEBRASKA

        NO. 15.  ARGUED OCTOBER 13-14, 1969-- DECIDED NOVEMBER 12,

           1969 


1.  APPELLANT JUVENILE'S CHALLENGE IN HABEAS CORPUS PROCEEDING ON
GROUND THAT HE WAS UNCONSTITUTIONALLY DEPRIVED OF HIS RIGHT TO TRIAL BY
JURY IS INAPPROPRIATE FOR RESOLUTION BY THIS COURT SINCE THE HEARING
BEFORE A NEBRASKA JUVENILE COURT JUDGE AT WHICH APPELLANT WAS ADJUDGED
A DELINQUENT WAS CONDUCTED BEFORE THIS COURT'S DECISIONS IN DUNCAN V.
LOUISIANA, 391 U.S. 145, AND BLOOM V. ILLINOIS, 391 U.S. 194, WHICH
WERE HELD IN DESTEFANO V. WOODS, 392 U.S. 631, TO APPLY ONLY
PROSPECTIVELY, AND APPELLANT WOULD THEREFORE HAVE HAD NO CONSTITUTIONAL
RIGHT TO A JURY TRIAL HAD HE BEEN TRIED AS AN ADULT IN A CRIMINAL
PROCEEDING. 

2.  IT IS NOT APPROPRIATE FOR THIS COURT TO DECIDE WHETHER NEBRASKA
LAW PROVIDING FOR PROOF OF DELINQUENCY IN A JUVENILE PROCEEDING UNDER A
PREPONDERANCE-OF-THE-EVIDENCE STANDARD VIOLATES DUE PROCESS
REQUIREMENTS WHERE NO OBJECTION TO THAT STANDARD WAS MADE AT THE
HEARING BY APPELLANT, WHO TOOK NO DIRECT APPEAL, AND HIS COUNSEL
ACKNOWLEDGED THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE
DELINQUENCY FINDING EVEN UNDER A REASONABLE-DOUBT STANDARD. 

3.  BECAUSE STANDING ALONE THE ISSUE COULD NOT BE SUBJECT TO REVIEW
BY AN APPEAL, THIS COURT DECLINES, IN VIEW OF THE BARRENNESS OF THE
RECORD, TO EXERCISE ITS CERTIORARI JURISDICTION TO PASS ON APPELLANT'S
CONTENTION THAT THE PROSECUTOR'S ASSERTEDLY UNREVIEWABLE DISCRETION
UNDER NEBRASKA CASE LAW WHETHER TO PROCEED AGAINST APPELLANT IN
JUVENILE COURT RATHER THAN IN ORDINARY CRIMINAL PROCEEDINGS VIOLATED
DUE PROCESS. 

183 NEB. 461, 161 N.W.2D 508, APPEAL DISMISSED; CERTIORARI DISMISSED
AS IMPROVIDENTLY GRANTED. 

PER CURIAM. 

AFTER A HEARING BEFORE A JUVENILE COURT JUDGE, APPELLANT DEBACKER
WAS FOUND TO BE A "DELINQUENT CHILD"  /1/  AND ORDER COMMITTED TO THE
BOYS' TRAINING SCHOOL AT KEARNEY, NEBRASKA.  /2/  DEBACKER DID NOT SEEK
DIRECT REVIEW OF HIS COMMITMENT, BUT INSTEAD SOUGHT STATE HABEAS
CORPUS.  THE NEBRASKA DISTRICT COURT DISMISSED APPELLANT'S PETITION, A
DIVIDED NEBRASKA SUPREME COURT AFFIRMED, /3/  AND LAST TERM WE NOTED
PROBABLE JURISDICTION OVER THE PRESENT APPEAL, 393 U.S. 1076.  BECAUSE
WE FIND THAT RESOLUTION OF THE CONSTITUTIONAL ISSUES PRESENTED BY
APPELLANT WOULD NOT BE APPROPRIATE IN THE CIRCUMSTANCES OF THIS CASE,
THE APPEAL IS DISMISSED.  SEE RESCUE ARMY V. MUNICIPAL COURT, 331 U.S.
549. 

1.  APPELLANT ASKS THIS COURT TO DECIDE WHETHER THE FOURTEENTH AND
SIXTH AMENDMENTS, IN LIGHT OF THIS COURT'S DECISIONS IN DUNCAN V.
LOUISIANA, 391 U.S. 145; BLOOM V. ILLINOIS, 391 U.S. 194; AND IN RE
GAULT, 387 U.S. 1, REQUIRE A TRIAL BY JURY IN A STATE JUVENILE COURT
PROCEEDING BASED ON AN ALLEGED ACT OF THE JUVENILE WHICH, IF COMMITTED
BY AN ADULT, WOULD, UNDER THE DUNCAN AND BLOOM CASES, REQUIRE A JURY
TRIAL IF REQUESTED.  IN DESTEFANO V. WOODS, 392 U.S. 631, WE HELD THAT
DUNCAN AND BLOOM "SHOULD RECEIVE ONLY PROSPECTIVE APPLICATION" AND
STATED THAT WE WOULD "NOT REVERSE STATE CONVICTIONS FOR FAILURE TO
GRANT JURY TRIAL WHERE TRIALS BEGAN PRIOR TO MAY 20, 1968, THE DATE OF
THIS COURT'S DECISIONS IN DUNCAN V. LOUISIANA AND BLOOM V. ILLINOIS." 
392 U.S.,AT 633, 635.  BECAUSE APPELLANT'S JUVENILE COURT HEARING WAS
HELD ON MARCH 28, 1968-- PRIOR TO THE DATE OF THE DECISIONS IN DUNCAN
AND BLOOM-- APPELLANT WOULD HAVE HAD NO CONSTITUTIONAL RIGHT TO A TRIAL
BY JURY IF HE HAD BEEN TRIED AS AN ADULT IN A CRIMINAL PROCEEDING.  IT
THUS SEEMS MANIFEST THAT THIS CASE IS NOT AN APPROPRIATE ONE FOR
CONSIDERING WHETHER THE NEBRASKA STATUTE WHICH PROVIDES THAT JUVENILE
HEARINGS BE "WITHOUT A JURY," NEB. REV. STAT. SEC. 43-206.03(2), IS
CONSTITUTIONALLY INVALID IN LIGHT OF DUNCAN AND BLOOM.  /4/ 

2.  APPELLANT NEXT ASKS THIS COURT TO DECIDE WHETHER THE
PREPONDERANCE-OF-THE-EVIDENCE STANDARD FOR BURDEN OF PROOF IN JUVENILE
COURT PROCEEDINGS, REQUIRED BY NEB. REV. STAT. SEC. 43-206.03(3),
SATISFIES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  HOWEVER,
AT THE APPELLANT'S JUVENILE COURT HEARING, HIS COUNSEL NEITHER OBJECTED
TO THE PREPONDERANCE-OF-THE-EVIDENCE STANDARD, NOR ASKED THE JUDGE TO
MAKE A RULING BASED ON PROOF BEYOND A REASONABLE DOUBT.  IN EXPLAINING
WHY HE DID NOT SEEK A DIRECT APPEAL FROM THE JUVENILE COURT'S
DETERMINATION THAT APPELLANT HAD COMMITTED THE ACT UPON WHICH RESTED
THE DELINQUENT CHILD FINDING, APPELLANT'S COUNSEL STATED AT ORAL
ARGUMENT BEFORE THIS COURT: 

     "(IT HAS BEEN POINTED OUT THAT I DID NOT ATTACK THE
SUFFICIENCY OF THE EVIDENCE. 

"OF COURSE, THE REASON FOR THAT IS OBVIOUS.  THE EVIDENCE IS

  MORE THAN SUFFICIENT TO SUSTAIN A CONVICTION OF WHAT HE DID.  AN

  APPEAL ON THE SUFFICIENCY OF THE EVIDENCE WOULD HAVE BEEN CLOSE

  TO FRIVOLOUS."  (TR. 41-42.) 

LATER IN ORAL ARGUMENT COUNSEL ACKNOWLEDGED THAT "(NO MATTER WHAT THE
STANDARD WAS . . . (OUR EVIDENCE JUST ISN'T INSUFFICIENT."  (TR. 47.) 
AND WHEN SPECIFICALLY ASKED WHETHER "(THE EVIDENCE WAS SUFFICIENT EVEN
UNDER A REASONABLE DOUBT STANDARD," COUNSEL RESPONDED:  "EVEN UNDER A
REASONABLE DOUBT STANDARD . . . ."  (TR. 47.) 

GIVEN THIS COMMENDABLY FORTHRIGHT EXPLANATION BY APPELLANT'S
COUNSEL, THIS CASE IS NOT AN APPROPRIATE VEHICLE FOR CONSIDERATION OF
THE STANDARD OF PROOF IN JUVENILE PROCEEDINGS.  /5/ 

3.  APPELLANT FINALLY ASKS US TO DECIDE WHETHER DUE PROCESS IS
DENIED BECAUSE, AS IT IS CLAIMED, THE NEBRASKA PROSECUTOR HAD
UNREVIEWABLE DISCRETION WHETHER HE WOULD PROCEED AGAINST APPELLANT IN
JUVENILE COURT RATHER THAN IN ORDINARY CRIMINAL PROCEEDINGS.  THE
RECORD SHOWS (1) THAT APPELLANT DID NOT MAKE TIS CONTENTION BEFORE THE
JUVENILE COURT JUDGE; (2) THAT APPELLANT RAISED THE ISSUE IN HIS HABEAS
CORPUS PETITION BUT THAT IT WAS NOT PASSED ON BY THE NEBRASKA DISTRICT
COURT; (3) THAT APPELLANT DID NOT PRESS THE DISTRICT COURT'S FAILURE TO
CONSIDER THIS ISSUE IN HIS APPEAL TO THE NEBRASKA SUPREME COURT, AND
MADE ONLY PASSING REFERENCE TO THE ISSUE IN HIS BRIEF TO THAT COURT;
AND (4) THAT THE OPINIONS OF THE NEBRASKA SUPREME COURT DID NOT PASS ON
THE ISSUE, OR EVEN REFER TO THE CONTENTION.  GIVEN THE BARRENNESS OF
THE RECORD ON THIS ISSUE, IN THE EXERCISE OF OUR DISCRETION, WE DECLINE
TO PASS ON IT.  SO FAR AS WE HAVE BEEN MADE AWARE, THIS ISSUE DOES NOT
DRAW INTO QUESTION THE VALIDITY OF ANY NEBRASKA STATUTE.  /6/
THEREFORE, IT COULD NOT, STANDING ALONE, BE SUBJECT TO REVIEW IN THIS
COURT BY WAY OF AN APPEAL.  SEE 28 U.S.C. 1257(2).  "(INSOFAR AS
NOTATION OF PROBABLE JURISDICTION MAY BE REGARDED AS A GRANT OF THE
CERTIORARI WRIT" AS TO THIS ISSUE, WE DISMISS SUCH WRIT AS
IMPROVIDENTLY GRANTED.  MISHKIN V. NEW YORK, 383 U.S. 502, 513. 

FOR THE FOREGOING REASONS THIS APPEAL IS

              DISMISSED. 

/1/  "DELINQUENT CHILD SHALL MEAN ANY CHILD UNDER THE AGE OF
EIGHTEEN YEARS WHO HAS VIOLATED ANY LAW OF THE STATE OR ANY CITY OR
VILLAGE ORDINANCE.  NEB. REV. STAT. SEC. 43-201(4).  APPELLANT WAS
CHARGED WITH HAVING A FORGED CHECK IN HIS POSSESSION WITH THE INTENT TO
UTTER IT AS GENUINE, AN ACT WHICH FOR AN ADULT WOULD BE FORGERY UNDER
NEB. REV. STAT. SEC. 28-601(2). 

/2/  APPELLANT WAS 17 WHEN COMMITTED, AND IT APPEARS THAT UNDER
NEBRASKA LAW HE COULD BE KEPT IN THE TRAINING SCHOOL UNTIL HIS 21ST
BIRTHDAY. 

/3/  FOUR OF THE SEVEN JUSTICES OF THE NEBRASKA SUPREME COURT
THOUGHT THE NEBRASKA STATUTORY PROVISIONS WHICH REQUIRE THAT JUVENILE
HEARINGS BE WITHOUT A JURY, NEB. REV. STAT. SEC. 43-206.03(2), AND BE
BASED ON THE PREPONDERANCE OF THE EVIDENCE, NEB. REV. STAT. SEC. 43
206.03(3), WERE UNCONSTITUTIONAL.  THE NEBRASKA CONSTITUTION PROVIDES,
HOWEVER, THAT:  "NO LEGISLATIVE ACT SHALL BE HELD UNCONSTITUTIONAL
EXCEPT BY THE CONCURRENCE OF FIVE JUDGES."  NEB. CONST., ART. V, SEC.
2. 

/4/  ALTHOUGH A COMMENT MADE BY APPELLANT'S COUNSEL AT ORAL ARGUMENT
BEFORE THIS COURT (IN RESPONSE TO A QUESTION) SUGGESTS RELIANCE ALSO ON
THE EQUAL PROTECTION CLAUSE FOR THE CLAIM THAT A JURY TRIAL WAS
CONSTITUTIONALLY REQUIRED (TR. 5), AN EXAMINATION OF THE RECORD CLEARLY
REVEALS THAT THIS WAS NOT ANY PART OF THE BASIS ON WHICH PROBABLE
JURISDICTION WAS NOTED HERE.  APPELLANT MADE NO EQUAL PROTECTION CLAIM
BEFORE THE JUVENILE COURT, IN HIS PETITION FOR HABEAS CORPUS TO THE
STATE COURTS, OR IN HIS JURISDICTIONAL STATEMENT OR BRIEF IN THIS
COURT.  THE SIXTH AMENDMENT AS REFLECTED IN THE FOURTEENTH WAS THE
EXCLUSIVE BASIS FOR APPELLANT'S CLAIM THAT HE HAD A RIGHT TO A JURY
TRIAL.  (SEE "QUESTIONS PRESENTED" IN JURISDICTIONAL STATEMENT 3-4, AND
APPELLANT'S BRIEF 2.)  NOR HAS ANY OF THE NEBRASKA COURTS BELOW PASSED
ON ANY EQUAL PROTECTION CLAIM. 

/5/  THIS COURT HAS RECENTLY NOTED PROBABLE JURISDICTION TO CONSIDER
THIS ISSUE IN IN RE WINSHIP (NO. 85, MISC.), PROBABLE JURISDICTION
NOTED, POST, P. 885. 

/6/  IN HIS PETITION FOR STATE HABEAS CORPUS, APPELLANT DID NOT
ALLEGE AS TO THIS ISSUE THAT ANY NEBRASKA STATUTORY PROVISION WAS
INVALID.  INSTEAD HE CLAIMED:  "PETITIONER IS DEPRIVED OF HIS LIBERTY
UNDER THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES
WHEN HIS RIGHT TO A JURY TRIAL AND THE PROTECTIVE PROCEDURES OF THE
CRIMINAL CODE ARE LEFT TO DEPEND ON THE UNCONTROLLED DISCRETION OF THE
PROSECUTOR AS TO WHETHER PETITIONER SHOULD BE PROCEEDED AGAINST IN
JUVENILE COURT OR SHOULD BE INFORMED AGAINST IN DISTRICT COURT UNDER
THE PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE."  IF IT CAN BE FAIRLY
SAID THAT THE PROSECUTOR'S DISCRETION UNDER NEBRASKA LAW IS
"UNCONTROLLED," OR NOT SUBJECT TO REVIEW, THIS IS NOT BECAUSE OF ANY
EXPLICIT STATUTORY PROVISION MAKING IT SUCH, CF. NEB. REV. STAT. SEC.
43-205.04, BUT BECAUSE OF LANGUAGE IN NEBRASKA CASE LAW.  SEE STATE V.
MCCOY, 145 NEB. 750, 18 N.W.2D 101 (1945); FUGATE V. RONIN, 167 NEB.
70, 75, 91 N.W.2D 240, 243-244 (1958). 

MR. JUSTICE BLACK, DISSENTING. 

FOR THE REASONS SET FORTH HEREIN AND IN THE DISSENTING OPINION OF MY
BROTHER DOUGLAS, I DISSENT AND WOULD REVERSE THE JUDGMENT BELOW. 

IN FEBRUARY 1968 APPELLANT, WHO WAS THEN 17 YEARS OLD, WAS CHARGED
UNDER THE LAWS OF NEBRASKA WITH BEING A "DELINQUENT CHILD"  /1/
BECAUSE HE HAD A FORGED BANK CHECK WHICH HE INTENDED TO USE FOR HIS OWN
PURPOSES.  /2/  AT THE HEARING ON THIS CHARGE HE ASKED FOR A JURY
TRIAL, ARGUING THAT THIS WAS A RIGHT GUARANTEED HIM BY THE SIXTH
AMENDMENT TO THE CONSTITUTION AND THAT A STATUTE PROHIBITING JURIES IN
"DELINQUENCY" PROCEEDINGS /3/  WAS THEREFORE UNCONSTITUTIONAL. 

THIS COURT IN IN RE GAULT, 387 U.S. 1 (1967), HELD THAT JUVENILES
CHARGED WITH BEING "DELINQUENTS" AS A RESULT OF COMMITTING A CRIMINAL
ACT WERE ENTITLED TO CERTAIN CONSTITUTIONAL SAFEGUARDS-- NAMELY, NOTICE
OF THE ISSUES INVOLVED, BENEFIT OF COUNSEL, PROTECTION AGAINST
COMPULSORY SELF-INCRIMINATION, AND CONFRONTATION OF THE WITNESSES
AGAINST THEM.  I CAN SEE NO BASIS WHATSOEVER IN THE LANGUAGE OF THE
CONSTITUTION FOR ALLOWING PERSONS LIKE APPELLANT THE BENEFIT OF THOSE
RIGHTS AND YET DENYING THEM A JURY TRIAL, A RIGHT WHICH IS SURELY ONE
OF THE FUNDAMENTAL ASPECTS OF CRIMINAL JUSTICE IN THE ENGLISH-SPEAKING
WORLD. 

THE COURT HERE DECIDES THAT IT WOULD NOT BE "APPROPRIATE" TO DECIDE
THIS ISSUE IN LIGHT OF DESTEFANO V. WOODS, 392 U.S. 631 (1968).  THAT
CASE HELD THAT THE SIXTH AMENDMENT RIGHT TO A JURY TRIAL-- MADE
APPLICABLE TO THE STATES IN DUNCAN V. LOUISIANA, 391 U.S. 145 (1968)--
DID NOT APPLY IN STATE PROCEEDINGS HEL) PRIOR TO MAY 20, 1968.  MR.
JUSTICE DOUGLAS AND I DISSENTED IN THAT CASE AS WE HAVE IN EVERY CASE
HOLDING THAT CONSTITUTIONAL DECISIONS WOULD TAKE EFFECT ONLY FROM THE
DAY THEY WERE ANNOUNCED.  /4/  I THINK THIS DOCTRINE OF PROSPECTIVE
ONLY APPLICATION IS NOTHING LESS THAN JUDICIAL AMENDMENT OF THE
CONSTITUTION, SINCE IT RESULTS IN THE CONSTITUTION'S MEANING ONE THING
THE DAY PRIOR TO A PARTICULAR DECISION AND SOMETHING ENTIRELY DIFFERENT
THE NEXT DAY EVEN THOUGH THE LANGUAGE REMAINS THE SAME.  UNDER OUR
SYSTEM OF GOVERNMENT SUCH AMENDMENTS CANNOT CONSTITUTIONALLY BE MADE BY
JUDGES BUT ONLY BY THE ACTION OF CONGRESS AND THE PEOPLE.  DEPRIVING
DEFENDANT OF JURY TRIALS PRIOR TO DUNCAN VIOLATED THE CONSTITUTION JUST
AS MUCH AS WOULD SIMILAR DEPRIVATIONS AFTER THAT DECISION, YET THIS
COURT TREATS THESE EQUAL DEPRIVATIONS WITH CLEARLY UNEQUAL JUSTICE.  I
CANNOT AGREE TO SUCH REFUSALS TO APPLY WHAT APPEAR TO ME TO BE THE
CLEAR COMMANDS OF THE CONSTITUTION. 

/1/  NEB. REV. STAT. SEC. 43-201(4) PROVIDES THAT:  "DELINQUENT
CHILD SHALL MEAN ANY CHILD UNDER THE AGE OF EIGHTEEN YEARS WHO HAS
VIOLATED ANY LAW OF THE STATE OR ANY CITY OR VILLAGE ORDINANCE." 

/2/  THE STATE CHARGED THAT APPELLANT "UNLAWFULLY, FELONIOUSLY AND
KNOWINGLY (HAD) IN HIS POSSESSION AND CUSTODY A CERTAIN FALSE, FORGED
AND COUNTERFEITED BANK CHECK . . . WITH THE INTENT . . . TO UTTER AND
PUBLISH SAID FALSE, FORGED AND COUNTERFEITED BANK CHECK AS TRUE AND
GENUINE, KNOWING THE SAME TO BE A FALSE, FORGED AND COUNTERFEITED BANK
CHECK, AND WITH THE INTENT THEN AND THERE AND THEREBY TO PREJUDICE,
DAMAGE AND DEFRAUD . . . , WELL KNOWING THE SAME TO BE FALSELY MADE,
FORGED AND COUNTERFEITED, CONTRARY TO THE FORM OF THE STATUTES IN SUCH
CASES MADE AND PROVIDED, AND AGAINST THE PEACE AND DIGNITY OF THE STATE
OF NEBRASKA."  APP. 1-2.  IT IS UNDISPUTED THAT SUCH ACTS CONSTITUTE
THE CRIME OF FORGERY UNDER STATE LAW.  NEB. REV. STAT. SEC. 28-601(2). 

/3/  NEB. REV. STAT. SEC. 43-206.03(2) PROVIDES THAT JUVENILE
HEARINGS "SHALL BE CONDUCTED BY THE JUDGE WITHOUT A JURY IN AN INFORMAL
MANNER . . . ." 

/4/  LINKLETTER V. WALKER, 381 U.S. 618, 640 (1965) (DISSENTING
OPINION); JOHNSON V. NEW JERSEY, 384 U.S. 719, 736 (1966) (DISSENTING
OPINION); STOVALL V. DENNO, 388 U.S. 293, 302, 303 (1967) (DISSENTING
OPINIONS); DESTEFANO V. WOODS, 392 U.S. 631, 635 (1968) (DISSENTING
OPINION); HALLIDAY V. UNITED STATES, 394 U.S. 831, 835 (1969)
(DISSENTING OPINION); SEE ALSO DESIST V. UNITED STATES, 394 U.S. 244,
254 (1969) (CONCURRING IN JUDGMENT). 

MR. JUSTICE DOUGLAS, DISSENTING. 

IN DESTEFANO V. WOODS, 392 U.S. 631, 635, I STATED MY VIEW THAT THE
DECISIONS IN DUNCAN V. LOUISIANA, 391 U.S. 145, AND BLOOM V. ILLINOIS,
391 U.S. 194, WHICH GUARANTEED TO ADULTS IN SERIOUS CRIMINAL CASES AND
CONTEMPTS THE RIGHT TO A TRIAL BY JURY, SHOULD BE GIVEN RETROACTIVE
EFFECT.  /1/  IN LIGHT OF THIS VIEW, I AM UNABLE TO JOIN THE COURT'S
PER CURIAM OPINION IN THIS CASE, HOLDING THAT BECAUSE APPELLANT'S
JUVENILE COURT HEARING WAS HELD PRIOR TO THE DATE OF THE DECISIONS IN
DUNCAN AND BLOOM THE COURT IS PRECLUDED FROM DECIDING APPELLANT'S RIGHT
TO A JURY TRIAL. 

I WOULD REACH THE MERITS AND HOLD THAT THE SIXTH AND FOURTEENTH
AMENDMENTS REQUIRE A JURY TRIAL AS A MATTER OF RIGHT WHERE THE
DELINQUENCY CHARGED IS AN OFFENSE THAT, IF THE PERSON WERE AN ADULT,
WOULD BE A CRIME TRIABLE BY JURY.  SUCH IS THIS CASE, FOR BEHIND THE
FACADE OF DELINQUENCY IS THE CRIME OF FORGERY.     AS ORIGINALLY
CONCEIVED, THE JUVENILE COURT WAS TO BE A CLINIC, NOT A COURT; THE
JUDGE AND ALL OF THE ATTENDANTS WERE VISUALIZED AS WHITE-COATED EXPERTS
THERE TO SUPERVISE, ENLIGHTEN, AND CURE-- NOT TO PUNISH. 

THESE WHITE-COATED PEOPLE WERE SURROGATES, SO TO SPEAK, OF THE
NATURAL PARENT.  AS STATED IN ONE OF THE LEADING CASES: 

     "TO SAVE A CHILD FROM BECOMING A CRIMINAL, OR FROM CONTINUING

  IN A CAREER OF CRIME, TO END IN MATURER YEARS IN PUBLIC

  PUNISHMENT AND DISGRACE, THE LEGISLATURE SURELY MAY PROVIDE FOR

  THE SALVATION OF SUCH A CHILD, IF ITS PARENTS OR GUARDIAN BE

  UNABLE OR UNWILLING TO DO SO, BY BRINGING IT INTO ONE OF THE

  COURTS OF THE STATE WITHOUT ANY PROCESS AT ALL, FOR THE PURPOSE

OF SUBJECTING IT TO THE STATE'S GUARDIANSHIP AND PROTECTION.  THE

  NATURAL PARENT NEEDS NO PROCESS TO TEMPORARILY DEPRIVE HIS CHILD

  OF ITS LIBERTY BY CONFINING IT IN HIS OWN HOME, TO SAVE IT AND TO

  SHIELD IT FROM THE CONSEQUENCES OF PERSISTENCE IN A CAREER OF

  WAYWARDNESS, NOR IS THE STATE, WHEN COMPELLED, AS PARENS PATRIAE,

  TO TAKE THE PLACE OF THE FATHER FOR THE SAME PURPOSE, REQUIRED TO

  ADOPT ANY PROCESS AS A MEANS OF PLACING ITS HANDS UPON THE CHILD

TO LEAD IT INTO ONE OF ITS COURTS.  WHEN THE CHILD GETS THERE AND

  THE COURT, WITH THE POWER TO SAVE IT, DETERMINES ON ITS

  SALVATION, AND NOT ITS PUNISHMENT, IT IS IMMATERIAL HOW IT GOT

  THERE.  THE ACT SIMPLY PROVIDES HOW CHILDREN WHO OUGHT TO BE

  SAVED MAY REACH THE COURT TO BE SAVED."  COMMONWEALTH V. FISHER,

  213 PA. 48, 53, 62 A. 198, 200 (1905). 

THIS NEW AGENCY-- WHICH STOOD IN THE SHOES OF THE PARENT OR GUARDIAN
- WAS TO DRAW ON ALL THE MEDICAL, PHYCHOLOGICAL, AND PSYCHIATRIC
KNOWLEDGE OF THE DAY AND TRANSFORM THE DELINQUENT.  THESE EXPERTS
MOTIVATED BY LOVE WERE TO TRANSFORM TROUBLED CHILDREN INTO NORMAL ONES,
SAVING THEM FROM CRIMINAL CAREERS. 

MANY THINGS HAPPENED THAT PREVENTED THIS DREAM FROM BECOMING A
WIDESPREAD REALITY.  FIRST, MUNICIPAL BUDGETS WERE NOT EQUAL TO THE
TASK OF ENTICING EXPERTS TO ENTER THIS FIELD IN LARGE NUMBERS.  SECOND,
SUCH EXPERTS AS WE HAD, NOTABLY THE PSYCHIATRISTS AND ANALYSTS, WERE
DRAWN AWAY BY THE HANDSOME FEES THEY COULD RECEIVE FOR REHABILITATING
THE RICH.  THIRD, THE LOVE AND TENDERNESS ALONE, POSSESSED BY THE WHITE
COATED JUDGE AND ATTENDANTS, WERE NOT SUFFICIENT TO UNTANGLE THE WEB OF
SUBCONSCIOUS INFLUENCES THAT POSSESSED THE TROUBLED YOUNSTER.  FOURTH,
CORRECTIONAL INSTITUTIONS DESIGNED TO CARE FOR THESE DELINQUENTS OFTEN
BECAME MINIATURE PRISONS WITH MANY OF THE SAME VICIOUS ASPECTS AS THE
ADULT MODELS.  FIFTH, THE SECRECY OF THE JUVENILE PROCEEDINGS LED TO
SOME OVERREACHING AND ARBITRARY ACTIONS. 

AS MR. JUSTICE FORTAS STATED IN KENT V. UNITED STATES, 383 U.S. 541,
556:  "THERE IS EVIDENCE, IN FACT, THAT THERE MAY BE GROUNDS FOR
CONCERN THAT THE CHILD RECEIVES THE WORST OF BOTH WORLDS:  THAT HE GETS
NEITHER THE PROTECTIONS ACCORDED TO ADULTS NOR THE SOLICITOUS CARE AND
REGENERATIVE TREATMENT POSTULATED FOR CHILDREN." 

IN KENT, THE COURT HELD THAT A VALID WAIVER OF THE "EXCLUSIVE"
JURISDICTION OF THE JUVENILE COURT OF THE DISTRICT OF COLUMBIA REQUIRED
"A HEARING, INCLUDING ACCESS BY . . . COUNSEL TO THE SOCIAL RECORDS AND
PROBATION OR SIMILAR REPORTS WHICH PRESUMABLY ARE CONSIDERED BY THE
COURT, AND . . . A STATEMENT OF REASONS FOR THE JUVENILE COURT'S
DECISION."  ID., AT 557.  ALTHOUGH THE OPINION IN THAT CASE EMPHASIZED
THAT "THE BASIC REQUIREMENTS OF DUE PROCESS AND FAIRNESS" BE SATISFIED
IN SUCH PROCEEDINGS, ID., AT 553, THE DECISION ITSELF TURNED ON THE
LANGUAGE OF A FEDERAL STATUTE. 

THE FIRST EXPANSIVE TREATMENT OF THE CONSTITUTIONAL REQUIREMENTS OF
DUE PROCESS IN JUVENILE COURT PROCEEDINGS WAS UNDERTAKEN IN IN RE
GAULT, 387 U.S. 1.  THAT CASE INVOLVED A 15-YEAR-OLD BOY WHO HAD BEEN
COMMITTED BY AN ARIZONA JUVENILE COURT TO THE STATE INDUSTRIAL SCHOOL
"FOR THE PERIOD OF HIS MINORITY, UNLESS SOONER DISCHARGED BY DUE
PROCESS OF LAW" FOR ALLEGEDLY MAKING LEWD TELEPHONE CALLS.  THE COURT
IN GAULT ABANDONED THE VIEW THAT DUE PROCESS WAS A CONCEPT ALIEN TO THE
PHILOSOPHY AND WORK OF THE JUVENILE COURTS.  MR. JUSTICE FORTAS,
SPEAKING FOR THE COURT, STATED:  "UNDER OUR CONSTITUTION, THE CONDITION
OF BEING A BOY DOES NOT JUSTIFY A KANGAROO COURT."  ID., AT 28.  THE
COURT HELD THAT A JUVENILE IS ENTITLED TO ADEQUATE AND TIMELY NOTICE OF
THE CHARGES AGAINST HIM, THE RIGHT TO COUNSEL, THE RIGHT TO CONFRONT
AND CROSS-EXAMINE WITNESSES, AND THE PRIVILEGE AGAINST SELF
INCRIMINATION. 

SINCE THE DECISION IN GAULT, LOWER COURTS HAVE DIVIDED ON THE
QUESTION WHETHER THERE IS A RIGHT TO JURY TRIAL IN JUVENILE
PROCEEDINGS.  THOSE COURTS WHICH HAVE GRANTED THE RIGHT FELT THAT IT
WAS IMPLICIT IN GAULT.  NIEVES V. UNITED STATES, 280 F.SUPP.  994
(D.C.S.D.N.Y. 1968); PEYTON V. NORD, 78 N.M. 717, 437 P.2D 716 (1968);
IN RE RINDELL, 2 BNACR.L. 3121 (PROVIDENCE, R.I., FAM.  CT., JAN.
1968).  THOSE WHO HAVE DENIED THE RIGHT HAVE REASONED EITHER THAT JURY
TRIAL IS NOT A FUNDAMENTAL RIGHT APPLICABLE TO THE STATES OR THAT IT IS
NOT A FUNDAMENTAL RIGHT APPLICABLE TO THE STATES OR THAT IT IS NOT
CONSISTENT WITH THE CONCEPT OF A JUVENILE COURT.  PEOPLE V. ANONYMOUS,
56 MISC.2D 725, 289 N.Y.S.2D 782 (SUP. CT. 1968); COMMONWEALTH V.
JOHNSON, 211 PA.SUPER.  62, 234 A.2D 9 (1967).  DUNCAN AND BLOOM HAVE
NEGATED THE FORMER REASON.  WHETHER A JURY TRIAL IS IN CONFLICT WITH
THE JUVENILE COURT'S UNDERLYING PHILOSOPHY IS IRRELEVANT, FOR THE
CONSTITUTION IS THE SUPREME LAW OF THE LAND. 

GIVEN THE FUNDAMENTAL NATURE OF THE RIGHT TO JURY TRIAL AS EXPRESSED
IN DUNCAN AND BLOOM, THERE IS, AS I SEE IT, NO CONSTITUTIONALLY
SUFFICIENT REASON TO DEPRIVE THE JUVENILE OF THIS RIGHT.  THE BALANCING
OF THE REHABILITATIVE PURPOSE OF THE JUVENILE PROCEEDING WITH THE DUE
PROCESS REQUIREMENT OF A JURY TRIAL IS A MATTER FOR A FUTURE
CONSTITUTIONAL CONVENTION. 

THE IDEA OF A JUVENILE COURT CERTAINLY WAS NOT THE DEVELOPMENT OF A
JUVENILE CRIMINAL COURT.  IT WAS TO HAVE A HEALTHY SPECIALIZED CLINIC,
NOT TO CONDUCT CRIMINAL TRIALS IN EVASION OF THE CONSTITUTION AND BILL
OF RIGHTS.  WHERE THERE IS A CRIMINAL TRIAL CHARGING A CRIMINAL
OFFENSE, WHETHER IN CONVENTIONAL TERMS OR IN THE LANGUAGE OF
DELINQUENCY, ALL OF THE PROCEDURAL REQUIREMENTS OF THE CONSTITUTION AND
BILL OF RIGHTS COME INTO PLAY. 

I WOULD REVERSE THIS JUDGMENT. 

/1/  THIS HAS BEEN MY POSITION WITH RESPECT TO ALL COMPARABLE
CONSTITUTIONAL DECISIONS.  SEE, E.G., DESIST V. UNITED STATES, 394 U.S.
244, 255-256 (DISSENTING OPINION); DESTEFANO V. WOODS, 392 U.S. 631,
635 (DISSENTING OPINION); AND CASES CITED THEREIN. 

WILLIAM G. LINE, BY APPOINTMENT OF THE COURT, 394 U.S. 914, ARGUED
THE CAUSE AND FILED BRIEFS FOR APPELLANT. 

RICHARD L. KUHLMAN ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS MELVIN KENT KAMMERLOHR, ASSISTANT ATTORNEY GENERAL OF
NEBRASKA. 

ALFRED L. SCANLAN, BY SPECIAL LEAVE OF COURT, ARGUED THE CAUSE AND
FILED A BRIEF FOR THE NATIONAL COUNCIL OF JUVENILE COURT JUDGES AS
AMICUS CURIAE. 

THOMAS C. LYNCH, ATTORNEY GENERAL, ALBERT W. HARRIS, JR., ASSISTANT
ATTORNEY GENERAL, AND DERALD E. GRANBERG AND GLORIA F. DEHART, DEPUTY
ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF CALIFORNIA AS AMICUS
CURIAE. 
..END :
























JOHNSON V. STATE BAR OF CALIFORNIA, 396 U.S. 22 


       JOHNSON V. STATE BAR OF CALIFORNIA ET AL.

 APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

        APPELLATE DISTRICT

        NO. 434.  DECIDED NOVEMBER 10, 1969 


268 CAL.APP.2D 437, 74 CAL.RPTR.  11, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :











TRANSPORTATION UNLIMITED OF CALIFORNIA V. UNITED STATES 396 U.S. 22 


       TRANSPORTATION UNLIMITED OF CALIFORNIA, INC. V. UNITED

           STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

           DISTRICT OF CALIFORNIA

        NO. 451.  DECIDED NOVEMBER 10, 1969 


300 F.SUPP.  474, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

SAMUEL B. PICONE FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN, ROBERT
W. GINNANE, AND RAYMOND M. ZIMMET FOR THE UNITED STATES ET AL., FRANCIS
W. MCINERNY FOR MIDWEST COAST TRANSPORT, INC., ET AL., AND DAVID
AXELROD FOR LITTLE AUDREY'S TRANSPORTATION CO., INC., ET AL.,
APPELLEES. 
..END :
























NATIONAL LABOR RELATIONS BOARD V. CLARK'S, 396 U.S. 23 


       NATIONAL LABOR RELATIONS BOARD V. CLARK'S GAMBLE CORP., DBA

           CLARK'S DISCOUNT DEPARTMENT STORE, ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SIXTH CIRCUIT

        NO. 439.  DECIDED NOVEMBER 10, 1969 


CERTIORARI GRANTED; 407 F.2D 199, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED, AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF NLRB V.
GISSEL PACKING CO., 395 U.S. 575. 

MR. JUSTICE DOUGLAS DISSENTS. 

SOLICITOR GENERAL GRISWOLD, ARNOLD ORDMAN, DOMINICK L. MANOLI,
NORTON J. COME, AND LEONARD M. WAGMAN FOR PETITIONER. 

EARLE K. SHAWE FOR RESPONDENT M. N. LANDAU STORES, INC.
..END :























CLINTON V. CALIFORNIA, 396 U.S. 23 


       CLINTON V. CALIFORNIA

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA

        NO. 632, MISC.  DECIDED NOVEMBER 10, 1969 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














JOLLY V. MORGAN COUNTY JUNIOR COLLEGE DISTRICT, 396 U.S. 24 


       JOLLY V. MORGAN COUNTY JUNIOR COLLEGE DISTRICT ET AL.

        APPEAL FROM THE SUPREME COURT OF COLORADO

     NO. 453.  DECIDED NOVEMBER 10, 1969 


-- COLO.-- , 452 P.2D 34, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

ALBERT W. GEBAUER FOR APPELLANT. 

DUKE W. DUNBAR, ATTORNEY GENERAL OF COLORADO, AND JOHN E. BUSH,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :











KRAFFT V. NEW YORK, 396 U.S. 24 


       KRAFFT V. NEW YORK

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 474.  DECIDED NOVEMBER 10, 1969 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

SIDNEY GREENBERG FOR APPELLANT. 
..END :












MARYLAND NATIONAL INSURANCE CO. V. SEVENTH JUDICIAL DISTRICT COURT OF
OKLAHOMA COUNTY, 396 U.S. 25 



       MARYLAND NATIONAL INSURANCE CO. ET AL. V. SEVENTH JUDICIAL

           DISTRICT COURT OF OKLAHOMA COUNTY ET AL.

        APPEAL FROM THE SUPREME COURT OF OKLAHOMA

    NO. 482.  DECIDED NOVEMBER 10, 1969 


455 P.2D 690, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

O. B. MARTIN FOR APPELLANTS. 
..END :







STEIN V. ILLINOIS, 396 U.S. 25 


       STEIN V. ILLINOIS ET AL.

        APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 502.  DECIDED NOVEMBER 10, 1969 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

YALE STEIN, APPELLANT, PRO SE. 

ELMER C. KISSANE FOR APPELLEES. 
..END :










KING V. GREENBLATT, 396 U.S. 26 


       KING V. GREENBLATT ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS

        NO. 615, MISC.  DECIDED NOVEMBER 10, 1969 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

ROBERT H. QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, AND JOHN WALL
AND EDWARD.W. HANLEY III, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEES. 
..END :











ZWICKER V. WISCONSIN, 396 U.S. 26 


       ZWICKER V. WISCONSIN

        APPEAL FROM THE SUPREME COURT OF WISCONSIN

        NO. 686, MISC.  DECIDED NOVEMBER 10, 1969 


41 WIS.2D 497, 164 N.W.2D 512, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

ANTHONY G. AMSTERDAM, MICHAEL MELTSNER, AND MELVYN ZATT FOR
APPELLANT. 

ROBERT W. WARREN, ATTORNEY GENERAL OF WISCONSIN, AND WILLIAM A.
PLATZ, SVERRE O. TINGLUM, AND WILLIAM F. EICH, ASSISTANT ATTORNEYS
GENERAL, FOR APPELLEE. 
..END :






BOSTON & MAINE RAILROAD V. UNITED STATES, 396 U.S. 27 


       BOSTON & MAINE RAILROAD ET AL. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS

        NO. 343.  DECIDED NOVEMBER 10, 1969  /1/ 


NO. 343, 297 F.SUPP.  615; NOS. 480 AND 497, 300 F.SUPP.  318,
AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENTS ARE AFFIRMED. 

/1/  TOGETHER WITH NO. 480, ARIZONA CORPORATION COMMISSION ET AL. V.
UNITED STATES ET AL., AND NO. 497, UNION PACIFIC RAILROAD CO. ET AL. V.
UNITED STATES ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA. 

CARL E. NEWTON AND M. LAUCK WALTON FOR APPELLANTS IN NO. 343.  LEE
JOHNSON, ATTORNEY GENERAL OF OREGON, RICHARD W. SABIN, ASSISTANT
ATTORNEY GENERAL, AND CLARENCE A. H. MEYER, ATTORNEY GENERAL OF
NEBRASKA, FOR APPELLANTS IN NO. 480.  HOWARD J. TRIENENS, MARTIN M.
LUCENTE, GEORGE L. SAUNDERS, JR., R. AMES, W. W. DALTON, K. A. DOBBINS,
J. H. DURKIN, N. MELVIN, T. A. MILLER, A. B. RUSS, JR., R. D. SICKLER,
E. L. VAN DELLEN, R. W. YOST, AND S. R. BRITTINGHAM, JR., FOR
APPELLANTS IN NO. 497. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
HOWARD E. SHAPIRO, FRITZ R. KAHN, AND JEROME NELSON FOR THE UNITED
STATES ET AL. IN ALL CASES.  HUGH B. COX AND WILLIAM H. ALLEN FOR
RAILROAD APPELLEES IN ALL CASES. 
..END :
















ALEXANDER V. BOARD OF EDUCATION, 396 U.S. 19 


       ALEXANDER ET AL. V. HOLMES COUNTY BOARD OF EDUCATION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT

        NO. 632.  ARGUED OCTOBER 23, 1969-- DECIDED OCTOBER 29,

  1969 


CONTINUED OPERATION OF RACIALLY SEGREGATED SCHOOLS UNDER THE STANDARD
OF "ALL DELIBERATE SPEED" IS NO LONGER CONSTITUTIONALLY PERMISSIBLE. 
SCHOOL DISTRICTS MUST IMMEDIATELY TERMINATE DUAL SCHOOL SYSTEMS BASED
ON RACE AND OPERATE ONLY UNITARY SCHOOL SYSTEMS.  THE COURT OF APPEALS'
ORDER OF AUGUST 28, 1969, DELAYING THAT COURT'S EARLIER MANDATE FOR
DESEGREGATION IN CERTAIN MISSISSIPPI SCHOOL DISTRICTS IS THEREFORE
VACATED AND THAT COURT IS DIRECTED TO ENTER AN ORDER, EFFECTIVE
IMMEDIATELY, THAT THE SCHOOLS IN THOSE DISTRICTS BE OPERATED ON A
UNITARY BASIS.  WHILE THE SCHOOLS ARE BEING THUS OPERATED, THE DISTRICT
COURT MAY CONSIDER ANY AMENDMENTS OF THE ORDER WHICH MAY BE PROPOSED,
BUT SUCH AMENDMENTS MAY BECOME EFFECTIVE ONLY WITH THE COURT OF
APPEALS' APPROVAL. 

VACATED AND REMANDED. 

PER CURIAM. 

THIS CASE COMES TO THE COURT ON A PETITION FOR CERTIORARI TO THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT.  THE PETITION WAS GRANTED ON
OCTOBER 9, 1969, AND THE CASE SET DOWN FOR EARLY ARGUMENT.  THE
QUESTION PRESENTED IS ONE OF PARAMOUNT IMPORTANCE, INVOLVING AS IT DOES
THE DENIAL OF FUNDAMENTAL RIGHTS TO MANY THOUSANDS OF SCHOOL CHILDREN,
WHO ARE PRESENTLY ATTENDING MISSISSIPPI SCHOOLS UNDER SEGREGATED
CONDITIONS CONTRARY TO THE APPLICABLE DECISIONS OF THIS COURT.  AGAINST
THIS BACKGROUND THE COURT OF APPEALS SHOULD HAVE DENIED ALL MOTIONS FOR
ADDITIONAL TIME BECAUSE CONTINUED OPERATION OF SEGREGATED SCHOOLS UNDER
A STANDARD OF ALLOWING "ALL DELIBERATE SPEED" FOR DESEGREGATION IS NO
LONGER CONSTITUTIONALLY PERMISSIBLE.  UNDER EXPLICIT HOLDINGS OF THIS
COURT THE OBLIGATION OF EVERY SCHOOL DISTRICT IS TO TERMINATE DUAL
SCHOOL SYSTEMS AT ONCE AND TO OPERATE NOW AND HEREAFTER ONLY UNITARY
SCHOOLS.  GRIFFIN V. SCHOOL BOARD, 377 U.S. 218, 234 (1964); GREEN V.
COUNTY SCHOOL BOARD OF NEW KENT COUNTY, 391 U.S. 430, 438-439, 442
(1968).  ACCORDINGLY. 

IT IS HEREBY ADJUDGED, ORDERED, AND DECREED: 

1.  THE COURT OF APPEALS' ORDER OF AUGUST 28, 1969, IS VACATED, AND
THE CASE IS REMANDED TO THAT COURT TO ISSUE ITS DECREE AND ORDER,
EFFECTIVE IMMEDIATELY, DECLARING THAT EACH OF THE SCHOOL DISTRICTS HERE
INVOLVED MAY NO LONGER OPERATE A DUAL SCHOOL SYSTEM BASED ON RACE OR
COLOR, AND DIRECTING THAT THEY BEGIN IMMEDIATELY TO OPERATE AS UNITARY
SCHOOL SYSTEMS WITHIN WHICH NO PERSON IS TO BE EFFECTIVELY EXCLUDED
FROM ANY SCHOOL BECAUSE OF RACE OR COLOR. 

2.  THE COURT OF APPEALS MAY IN ITS DISCRETION DIRECT THE SCHOOLS
HERE INVOLVED TO ACCEPT ALL OR ANY PART OF THE AUGUST 11, 1969,
RECOMMENDATIONS OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
WITH ANY MODIFICATIONS WHICH THAT COURT DEEMS PROPER INSOFAR AS THOSE
RECOMMENDATIONS INSURE A TOTALLY UNITARY SCHOOL SYSTEM FOR ALL ELIGIBLE
PUPILS WITHOUT REGARD TO RACE OR COLOR. 

THE COURT OF APPEALS MAY MAKE ITS DETERMINATION AND ENTER ITS ORDER
WITHOUT FURTHER ARGUMENTS OR SUBMISSIONS. 

3.  WHILE EACH OF THESE SCHOOL SYSTEMS IS BEING OPERATED AS A
UNITARY SYSTEM UNDER THE ORDER OF THE COURT OF APPEALS, THE DISTRICT
COURT MAY HEAR AND CONSIDER OBJECTIONS THERETO OR PROPOSED AMENDMENTS
THEREOF, PROVIDED, HOWEVER, THAT THE COURT OF APPEALS' ORDER SHALL BE
COMPLIED WITH IN ALL RESPECTS WHILE THE DISTRICT COURT CONSIDERS SUCH
OBJECTIONS OR AMENDMENTS, IF ANY ARE MADE.  NO AMENDMENT SHALL BECOME
EFFECTIVE BEFORE BEING PASSED UPON BY THE COURT OF APPEALS. 

4.  THE COURT OF APPEALS SHALL RETAIN JURISDICTION TO INSURE PROMPT
AND FAITHFUL COMPLIANCE WITH ITS ORDER, AND MAY MODIFY OR AMEND THE
SAME AS MAY BE DEEMED NECESSARY OR DESIRABLE FOR THE OPERATION OF A
UNITARY SCHOOL SYSTEM. 

5.  THE ORDER OF THE COURT OF APPEALS DATED AUGUST 28, 1969, HAVING
BEEN VACATED AND THE CASE REMANDED FOR PROCEEDINGS IN CONFORMITY WITH
THIS ORDER, THE JUDGMENT SHALL ISSUE FORTHWITH AND THE COURT OF APPEALS
IS REQUESTED TO GIVE PRIORITY TO THE EXECUTION OF THIS JUDGMENT AS FAR
AS POSSIBLE AND NECESSARY. 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE JAMES M. NABRIT III, NORMAN C. AMAKER, MELVYN ZARR, AND
CHARLES L. BLACK, JR. 

ASSISTANT ATTORNEY GENERAL LEONARD ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE MEMORANDUM WAS SOLICITOR GENERAL GRISWOLD.  A.
F. SUMMER, ATTORNEY GENERAL OF MISSISSIPPI, AND JOHN C. SATTERFIELD
ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS OTHER THAN THE
UNITED STATES. 

LOUIS F. OBERDORFER ARGUED THE CAUSE FOR THE LAWYERS' COMMITTEE FOR
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON
THE BRIEF WERE JOHN W. DOUGLAS, BETHUEL M. WEBSTER, CYRUS R. VANCE, ASA
SOKOLOW, JOHN SCHAFER, JOHN DOAR, RICHARD C. DINKELSPIEL, ARTHUR H.
DEAN, LLOYD N. CUTLER, BRUCE BROMLEY, BERL I. BERNHARD, TIMOTHY B. DYK,
AND MICHAEL R. KLEIN. 

RICHARD B. SOBOL AND DAVID RUBIN FILED A BRIEF FOR THE NATIONAL
EDUCATION ASSOCIATION AS AMICUS CURIAE URGING REVERSAL.  THE TENNESSEE
FEDERATION FOR CONSTITUTIONAL GOVERNMENT FILED A BRIEF AS AMICUS
CURIAE. 
..END :











SIMPSON V. UNION OIL CO., 396 U.S. 13 


       SIMPSON V. UNION OIL CO. OF CALIFORNIA

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

       COURT OF APPEALS FOR THE NINTH CIRCUIT

        NO. 419.  DECIDED OCTOBER 27, 1969 


THE RESERVATION IN SIMPSON V. UNION OIL CO., 377 U.S. 13, OF THE
QUESTION WHETHER THERE MIGHT BE ANY EQUITIES THAT WOULD WARRANT ONLY
PROSPECTIVE APPLICATION IN DAMAGE SUITS OF THE RULE GOVERNING PRICE
FIXING OF NONPATENTED ARTICLES BY THE "CONSIGNMENT" DEVICE, ANNOUNCED
THEREIN, WAS NOT INTENDED TO DENY THE FRUITS OF SUCCESSFUL LITIGATION
TO PETITIONER.  THE QUESTION WAS RESERVED FOR POSSIBLE APPLICATION IN
OTHER CASES WHERE PRODUCT DISTRIBUTION WAS STRUCTURED ON DIFFERENT
CONSIDERATIONS. 

CERTIORARI GRANTED; 411 F.2D 897, REVERSED. 

PER CURIAM. 

THIS CASE REPRESENTS THE AFTERMATH OF OUR DECISION IN SIMPSON V.
UNION OIL CO., 377 U.S. 13, WHERE WE HELD THAT A "CONSIGNMENT"
AGREEMENT FOR THE SALE OF GASOLINE, REQUIRED BY UNION OIL OF LESSEES OF
ITS RETAIL OUTLETS, VIOLATED THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C. 1
ET SEQ. THE CASE WAS REMANDED FOR A HEARING ON OTHER ISSUES AND FOR A
DETERMINATION OF DAMAGES.  THE LAST SENTENCE OF THE COURT'S OPINION
STATED: 

    "WE RESERVE THE QUESTION WHETHER, WHEN ALL THE FACTS ARE KNOWN,

  THERE MAY BE ANY EQUITIES THAT WOULD WARRANT ONLY PROSPECTIVE

  APPLICATION IN DAMAGE SUITS OF THE RULE GOVERNING PRICE FIXING BY

  THE 'CONSIGNMENT' DEVICE WHICH WE ANNOUNCE TODAY."  ID., AT

  24-25. 

ON REMAND, THE DISTRICT COURT INTERPRETED THIS SENTENCE AS AN
INVITATION TO DETERMINE IF ANY "EQUITIES" WERE PRESENT WHICH WOULD
WARRANT PRECLUDING THE IMPOSITION OF DAMAGES ON UNION OIL.  ITS FINDING
WAS THAT AN APPLICATION OF THE RULE ANNOUNCED BY THIS COURT TO THE
DAMAGES ACTION WOULD BE UNFAIR, ON THE GROUND THAT THE DECISION IN
UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, GAVE UNION OIL A
REASONABLE BASIS FOR BELIEVING THAT ITS ACTIONS WERE ENTIRELY LAWFUL. 
THE COURT OF APPEALS AFFIRMED. 

THE PETITION FOR CERTIORARI PRESENTS THE QUESTION WHETHER IN THIS
CASE THE PRINCIPLES WE ANNOUNCED IN SIMPSON V. UNION OIL CO. SHOULD BE
MADE PROSPECTIVE IN THE PRESENT LITIGATION.  WE GRANT THE PETITION ON
THAT QUESTION AND DENY IT ON THE OTHER QUESTIONS TENDERED; AND WE
REVERSE THE JUDGMENT BELOW. 

WE HELD WHEN THE CASE WAS HERE BEFORE THAT ON THE FACTS OF RECORD
THE USE OF THE "CONSIGNMENT" DEVICE WAS WITHIN THE PROHIBITED BAN OF
PRICE FIXING FOR NONPATENTED ARTICLES, 377 U.S.,AT 16-24, AND THAT "ON
THE ISSUE OF RESALE PRICE MAINTENANCE UNDER THE SHERMAN ACT THERE IS
NOTHING LEFT TO TRY, FOR THERE WAS AN AGREEMENT FOR RESALE PRICE
MAINTENANCE, COERCIVELY EMPLOYED."  ID., AT 24. 

THE QUESTION WE RESERVED WAS NOT AN INVITATION TO DENY THE FRUITS OF
SUCCESSFUL LITIGATION TO THIS PETITIONER.  CONGRESS HAS DETERMINED THE
CAUSES OF ACTION THAT ARISE FROM ANTITRUST VIOLATIONS; AND THERE HAS
BEEN AN ADJUDICATION THAT A CAUSE OF ACTION AGAINST RESPONDENT HAS BEEN
ESTABLISHED.  FORMULATION OF A RULE OF LAW IN AN ARTICLE III CASE OR
CONTROVERSY WHICH IS PROSPECTIVE AS TO THE PARTIES INVOLVED IN THE
IMMEDIATE LITIGATION WOULD BE MOST UNUSUAL, ESPECIALLY WHERE THE RULE
ANNOUNCED WAS NOT INNOVATIVE.  SINCE PARTIES IN OTHER CASES MIGHT BE
SHOWN TO HAVE STRUCTURED PRODUCT DISTRIBUTION ON QUITE DIFFERENT
CONSIDERATIONS, WE RESERVED THE QUESTION WHETHER IN SOME OF THOSE OTHER
SITUATIONS EQUITY MIGHT WARRANT THE CONCLUSION THAT PROSPECTIVE
APPLICATION WAS THE ONLY FAIR COURSE. 

              REVERSED. 

MR. JUSTICE BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

I WHOLEHEARTEDLY CONCUR WITH THE DECISION OF THE COURT THAT BOTH
COURTS BELOW WERE IN ERROR IN HOLDING THAT PETITIONER WAS NOT ENTITLED
TO ANY DAMAGES IN THIS CASE.  I DISSENT, HOWEVER, FROM THE COURT'S
DENIAL OF CERTIORARI ON ANOTHER QUESTION THAT PETITIONER RAISES, THE
EFFECT OF WHICHIS TO LEAVE STANDING THAT PART OF THE DISTRICT COURT'S
JUDGMENT SETTING ASIDE PETITIONER'S JURY VERDICT AS EXCESSIVE AND
GRANTING RESPONDENT A NEW TRIAL ON THE ISSUE OF DAMAGES. 

THE DISTRICT COURT'S GRANT OF A NEW TRIAL DID NOT REST UPON A
FINDING THAT ANY OF THE EVIDENCE ON THE ISSUE OF DAMAGES WAS IMPROPERLY
ADMITTED OR THAT THE INSTRUCTIONS TO THE JURY WERE ERRONEOUS.  THE
JUDGE GRANTED THE NEW TRIAL ON THE GROUND THAT THE $160,000 VERDICT "IS
AGAINST THE WEIGHT OF THE EVIDENCE, SHOCKS THE CONSCIENCE, IS GROSSLY
AND MONSTROUSLY EXCESSIVE, IS THE RESULT EITHER OF PASSION AND
PREJUDICE OR OF CONSIDERATION BY THE JURY OF FACTORS IRRELEVANT TO THE
LITITGATION, IS SPECULATIVE, CONJECTURAL AND A MISCARRIAGE OF
JUSTICE."  CIVIL NO. 37, 344 (D.C.N.D. CAL., FILED MAY 23, 1967). 

I DO NOT AGREE THAT UNDER THE FACTS OF THIS CASE THE VERDICT SHOULD
HAVE SHOCKED THE COURT'S CONSCIENCE.  CERTAINLY THE $160,000 AWARD DOES
NOT SHOCK MY CONSCIENCE, NOR DOES IT SEEM TO ME MONSTROUS OR THE RESULT
OF PASSION AND PREJUDICE ON THE PART OF THE JURY.  PETITIONER'S GROWING
FILLING STATION BUSINESS WAS DESTROYED BY RESPONDENT THROUGH CONDUCT
THAT THIS COURT HELD TO BE IN VIOLATION OF THE ANTITRUST LAWS.  SEE
SIMPSON V. UNION OIL CO., 377 U.S. 13 (1964).  AT THE TIME THE CAUSE OF
ACTION AROSE PETITIONER'S LIFE EXPECTANCY WAS ABOUT 25 YEARS.  THE JURY
HAD A RIGHT TO BELIEVE THAT HIS BUSINESS WOULD HAVE GROWN THROUGH THOSE
25 YEARS, AND NO ONE CAN SAY WITH ANY ABSOLUTE ASSURANCE THAT THE JURY
VERDICT WAS IN EXCESS OF THE IMMEDIATE AND LONG-TERM RETURNS HE MIGHT
HAVE REALIZED FROM HIS BUSINESS DURING THAT PERIOD. 

ANTITRUST DAMAGES SUCH AS THOSE INVOLVED HERE ARE BOUND TO BE
"SPECULATIVE" AND "CONJECTURAL" TO SOME EXTENT.  WHEN A PERSON
WRONGFULLY TAKES GOVERNMENT BONDS WORTH $10,000 ON THE MARKET, THE
DAMAGES CAN BE PRECISELY MEASURED.  BUT WHEN AS HERE A YOUNG MAN'S
BUSINESS IS WIPED OUT ROOT AND BRANCH BY A WRONGDOER, THE MEASUREMENT
OF THE VICTIM'S DAMAGES IS NOT SO SIMPLE A MATTER.  THIS IS TRUE
BECAUSE NO ONE CAN INFALLIBLY PREDICT HOW LONG THAT BUSINESS WOULD HAVE
CONTINUED TO GROW AND FLOURISH OR PRECISELY HOW MUCH THE BUSINESS WOULD
HAVE BEEN WORTH TO HIM IN 25 YEARS.  BUT CERTAINLY A FAIR AND JUST
LEGAL SYSTEM IS NOT REQUIRED BY DIFFICULTIES OF PROOF TO THROW UP ITS
HANDS IN DESPAIR AND LEAVE THE SUFFERER'S DAMAGE TO BE BORNE BY HIM
WHILE THE PERSON WHO DID THE WRONG GOES SCOT FREE.  THIS COURT HAS
REFUSED UNDER SUCH CIRCUMSTANCES TO HOLD THAT OUR SYSTEM OF JUSTICE IS
SO HELPLESS TO DO JUSTICE.  IN THIS VERY ANTITRUST FIELD OUR COURT HAS
SPECIFICALLY AND POINTEDLY REFUSED TO PERMIT ANTITRUST VIOLATORS TO
ESCAPE LIABILITY FOR THEIR WRONGS ON THE ARGUMENT THAT DAMAGES MUST NOT
BE AWARDED BECAUSE THEY ARE UNCERTAIN AND SPECULATIVE.  THE COURT IN A
RINGING OPINION BY MR. CHIEF JUSTICE STONE IN BIGELOW V. RKO RADIO
PICTURES, 327 U.S. 251 (1946), EMPHATICALLY DECLINED TO ACKNOWLEDGE
SUCH JUDICIAL HELPLESSNESS.  THERE WE HELD THAT THE AWARD OF DAMAGES
FOR THE VICTIM OF AN ANTITRUST VIOLATION MUST NOT BE DENIED ON THE
SPURIOUS ARGUMENT THAT THEY CANNOT BE PROVED WITH THE CERTAINTY OF THE
VALUE OF STOLEN BONDS.  IN THAT CASE THIS COURT SAID: 

     "(IN THE ABSENCE OF MORE PRECISE PROOF, THE JURY COULD
CONCLUDE

  AS A MATTER OF JUST AND REASONABLE INFERENCE FROM THE PROOF OF

  DEFENDANTS' WRONGFUL ACTS AND THEIR TENDENCY TO INJURE

  PLAINTIFFS' BUSINESS, AND FROM THE EVIDENCE OF THE DECLINE IN

  PRICES, PROFITS AND VALUES, NOT SHOWN TO BE ATTRIBUTABLE TO OTHER

CAUSES, THAT DEFENDANTS' WRONGFUL ACTS HAD CAUSED DAMAGE TO THE

  PLAINTIFFS."  ID., AT 264. 

     "THE MOST ELEMENTARY CONCEPTIONS OF JUSTICE AND PUBLIC POLICY

  REQUIRE THAT THE WRONGDOER SHALL BEAR THE RISK OF THE UNCERTAINTY

WHICH HIS OWN WRONG HAS CREATED."  ID., AT 265. 

BIGELOW AND OTHER CASES /1/  CLEARLY ESTABLISH THE RULE THAT THE
EXISTENCE OF DAMAGES IN ANTITRUST ACTIONS IS A QUESTION FOR THE JURY
AND THAT THE INHERENT UNCERTAINTY IN THE AMOUNT OF DAMAGES IS TO BE
RESOLVED AGAINST THE WRONGDOER.  IN MY OPINION THE JURY BELOW DID
EXACTLY WHAT WE SAID IT WAS ENTITLED TO DO IN BIGELOW.  I WOULD
THEREFORE REQUIRE THAT THE JURY VERDICT BE REINSTATED WITHOUT FURTHER
ADO. 

/1/  PERKINS V. STANDARD OIL CO. OF CALIFORNIA, 395 U.S. 642 (1969);
CONTINENTAL ORE CO. V. UNION CARBIDE & CARBON CORP., 370 U.S. 690
(1962). 

MR. JUSTICE STEWART WOULD DENY THE PETITION FOR CERTIORARI. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MAXWELL KEITH FOR PETITIONER. 

MOSES LASKY FOR RESPONDENT. 
..END :







WASHUM V. UNITED STATES, 396 U.S. 18 


       WASHUM DBA LOS ANGELES-YUMA FREIGHT LINES ET AL. V. UNITED

           STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF ARIZONA

        NO. 374.  DECIDED OCTOBER 27, 1969 


AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

JAMES W. WRAPE AND ROBERT E. JOYNER FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
ROBERT W. GINNANE, AND NAHUM LITT FOR THE UNITED STATES ET AL., AND
ROBERT Y. SCHUREMAN FOR CONSOLIDATED COPPERSTATE LINES ET AL.,
APPELLEES. 
..END :




COX V. TENNESSEE, 396 U.S. 18 


       COX, GUARDIAN V. TENNESSEE, BY AND THROUGH ITS ATTORNEY

           GENERAL, ET AL.

        APPEAL FROM THE SUPREME COURT OF TENNESSEE

        NO. 430.  DECIDED OCTOBER 27, 1969 


-- TENN.-- , 439 S.W.2D 267, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

THOMAS F. TURLEY, JR., FOR APPELLANT. 

THOMAS E. FOX, DEPUTY ATTORNEY GENERAL OF TENNESSEE, AND C. HAYES
COONEY, ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :






BEACHAM V. BRATERMAN, 396 U.S. 12 


       BEACHAM V. BRATERMAN ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF FLORIDA

        NO. 404.  DECIDED OCTOBER 20, 1969 


300 F.SUPP.  182, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

BRUCE S. ROGOW FOR APPELLANT. 

EARL FAIRCLOTH, ATTORNEY GENERAL OF FLORIDA, AND T. T. TURNBULL AND
JAMES MCGUIRK, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEES. 
..END :






WHIDDON V. UNITED STATES, 396 U.S. 12 


       WHIDDON V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 267, MISC.  DECIDED OCTOBER 20, 1969 


CERTIORARI GRANTED; VACATED AND REMANDED TO DISTRICT COURT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF TEXAS FOR RESENTENCING.  PRINCE V. UNITED STATES, 352 U.S.
322, AND HEFLIN V. UNITED STATES, 358 U.S. 415. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :








HAGAN V. REAGAN, 396 U.S. 1 


       HAGAN ET AL. V. REAGAN, GOVERNOR OF CALIFORNIA, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA

  NO. 279.  DECIDED OCTOBER 13, 1969


4 AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  WILLIAMS V. VIRGINIA STATE BOARD OF
ELECTIONS, 393 U.S. 320. 
..END :













RISTUCCIA V. ADAMS, 396 U.S. 1 


       RISTUCCIA ET UX. V. ADAMS ET AL.

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
NINTH

      CIRCUIT

        NO. 191.  DECIDED OCTOBER 13, 1969 


406 F.2D 1257, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :











SPAULDING LAUNDRY & DRY CLEANING CO. V. DEPARTMENT OF REVENUE OF
KENTUCKY, 396 U.S. 2 A 



       SPALDING LAUNDRY & DRY CLEANING CO. V. DEPARTMENT OF REVENUE

           OF KENTUCKY

        APPEAL FROM THE COURT OF APPEALS OF KENTUCKY

        NO. 123.  DECIDED OCTOBER 13, 1969 


436 S.W.2D 522, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISSMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

T. KENNEDY HELM, JR., FOR APPELLANT. 

WILLIAM S. RILEY, ASSISTANT ATTORNEY GENERAL OF KENTUCKY, FOR
APPELLEE. 
..END :





DUFFY STORAGE & MOVING CO. V. CITY AND COUNTY OF DENVER, 396 U.S. 2 


       DUFFY STORAGE & MOVING CO. ET AL. V. CITY AND COUNTY OF

           DENVER ET AL.

        APPEAL FROM THE SUPREME COURT OF COLORADO

        NO. 132.  DECIDED OCTOBER 13, 1969 


-- COLO.-- , 450 P.2D 339, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

GEORGE LOUIS CREAMER FOR APPELLANTS. 

MAX P. ZALL FOR APPELLEES. 
..END :








GETTIG EQUIPMENT CORP. V. BOARD OF ZONING APPEALS OF CLEVELAND, 396
U.S. 3 A 



       GETTIG EQUIPMENT CORP. ET AL. V. BOARD OF ZONING APPEALS OF

           CLEVELAND ET AL.

        APPEAL FROM THE SUPREME COURT OF OHIO

        NO. 136.  DECIDED OCTOBER 13, 1969 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

WALTER L. GREENE FOR APPELLANTS. 

WILLIAM T. MCKNIGHT FOR APPELLEES. 
..END :





FURMAN V. CITY OF NEW YORK, 396 U.S. 3 


       FURMAN V. CITY OF NEW YORK ET AL.

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 142.  DECIDED OCTOBER 13, 1969 


23 N.Y.2D 1011, 247 N.E.2D 281, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

LOUIS B. SCHEINMAN FOR APPELLANT. 

J. LEE RANKIN, STANLEY BUCHSBAUM, AND THEODORE R. LEE FOR
APPELLEES. 
..END :








IMPERIAL REFINERIES OF MINNESOTA, INC. V. CITY OF ROCHESTER, 396 U.S.
4 A 


       IMPERIAL REFINERIES OF MINNESOTA, INC. V. CITY OF ROCHESTER

        APPEAL FROM THE SUPREME COURT OF MINNESOTA

        NO. 171.  DECIDED OCTOBER 13, 1969 


282 MINN. 481, 165 N.W.2D 699, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MARSHALL S. SNYDER FOR APPELLANT. 
..END :










WHEELER V. VERMONT, 396 U.S. 4 


       WHEELER V. VERMONT

        APPEAL FROM THE SUPREME COURT OF VERMONT

        NO. 199.  DECIDED OCTOBER 13, 1969 


-- VT.-- , -- , 249 A.2D 887, 253 A.2D 136, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANTOF A SUBSTANTIAL FEDERAL QUESTION. 

JAMES C. CLEVELAND FOR APPELLANT. 

JEROME R. HELLERSTEIN FOR APPELLEE. 
..END :











JORDAN V. ARIZONA, 396 U.S. 5 


       JORDAN V. ARIZONA EX REL. NELSON, ATTORNEY GENERAL

        APPEAL FROM THE SUPREME COURT OF ARIZONA

 NO. 204.  DECIDED OCTOBER 13, 1969 


104 ARIZ. 193, 450 P.2D 383, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

STEWART L. UDALL FOR APPELLANT. 

GARY K. NELSON, ATTORNEY GENERAL OF ARIZONA, APPELLEE, PRO SE.
..END :











SHAPIRO, COMMISSIONER OF WELFARE OF CONNECTICUT V. SOLMAN, 396 U.S.
5 



       SHAPIRO, COMMISSIONER OF WELFARE OF CONNECTICUT V. SOLMAN ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT

        NO. 215.  DECIDED OCTOBER 13, 1969 


300 F.SUPP.  409, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED.  SEE
KING V. SMITH, 392 U.S. 309. 

ROBERT K. KILLIAN, ATTORNEY GENERAL OF CONNECTICUT, AND FRANCIS J.
MACGREGOR, ASSISTANT ATTORNEY GENERAL, FOR APPELLANT. 

FRANCIS X. DINEEN FOR APPELLEES. 
..END :



BRADESKU V. BRADESKU, 396 U.S. 6 


       BRADESKU V. BRADESKU

        APPEAL FROM THE SUPREME COURT OF OHIO

        NO. 238.  DECIDED OCTOBER 13, 1969 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

A. ALBERT PERELMAN FOR APPELLANT. 
..END :












MAINE V. SHONE, 396 U.S. 6 


       MAINE ET AL. V. SHONE

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
FIRST

           CIRCUIT

        NO. 261.  DECIDED OCTOBER 13, 1969 


DISTRICT COURT JUDGMENT AND 406 F.2D 844, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION OF THE APPELLEE FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED.  THE JUDGMENTS OF THE UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE ARE VACATED AND THE CASE IS REMANDED TO SAID UNITED STATES
DISTRICT COURT WITH DIRECTIONS TO DISMISS THE CASE AS MOOT. 

JAMES S. ERWIN, ATTORNEY GENERAL OF MAINE, AND JOHN W. BENOIT, JR.,
ASSISTANT ATTORNEY GENERAL, FOR APPELLANTS. 
..END :






INTERCO INC. V. RHODEN, CHAIRMAN, MISSISSIPPI TAX COMMISSION, 396
U.S. 7 A 



       INTERCO INC. V. RHODEN, CHAIRMAN, MISSISSIPPI TAX COMMISSION

        APPEAL FROM THE SUPREME COURT OF MISSISSIPPI

        NO. 306.  DECIDED OCTOBER 13, 1969 


220 SO.2D 290, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

JAMES LEON YOUNG FOR APPELLANT. 

JOHN E. STONE FOR APPELLEE. 
..END :









KELLAR V. NEAL, 396 U.S. 7 


       KELLAR V. NEAL ET UX.

        APPEAL FROM THE SUPREME COURT OF NEVADA

        NO. 308.  DECIDED OCTOBER 13, 1969 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING
THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :













HIYANE V. HOUSE OF VISION, INC., 396 U.S. 8 


       HIYANE ET AL. V. HOUSE OF VISION, INC.

APPEAL FROM THE SUPREME COURT OF ILLINOIS

        NO. 320.  DECIDED OCTOBER 13, 1969 


42 ILL.2D 45, 245 N.E.2D 468, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

LEONARD ROSE FOR APPELLANTS. 

LAWRENCE J. WEST AND LEO SPIRA FOR APPELLEE. 
..END :









SHIKARA V. MARYLAND CASUALTY CO., 396 U.S. 8 


       SHIKARA V. MARYLAND CASUALTY CO.

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
FIRST

      CIRCUIT

        NO. 324.  DECIDED OCTOBER 13, 1969 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING
THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :










BERNARD V. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, 396 U.S. 9 


       BERNARD V. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM ET AL.

        APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF

           NEW YORK, FIRST JUDICIAL DEPARTMENT

        NO. 177, MISC.  DECIDED OCTOBER 13, 1969 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

J. LEE RANKIN AND STANLEY BUCHSBAUM FOR NEW YORK CITY EMPLOYEES'
RETIREMENT SYSTEM, AND GEORGE N. KANOFF FOR LIPORI, APPELLEES. 
..END :









SELLERS V. UNITED STATES, 396 U.S. 9 


       SELLERS V. UNITED STATES

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT

        NO. 264, MISC.  DECIDED OCTOBER 13, 1969 


CERTIORARI GRANTED; 406 F.2D 465, VACATED AND REMANDED TO DISTRICT
COURT. 

PER CURIAM. 

UPON CONSIDERATION OF THE SUGGESTION OF THE SOLICITOR GENERAL AND AN
EXAMINATION OF THE ENTIRE RECORD, THE MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED. 
THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA FOR FURTHER
CONSIDERATION IN LIGHT OF ALDERMAN V. UNITED STATES, 394 U.S. 165. 

HOWARD MOORE, JR., FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :




WHITLEY V. NEW YORK, 396 U.S. 10 


       WHITLEY V. NEW YORK

        APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF

           NEW YORK, FIRST JUDICIAL DEPARTMENT

        NO. 268, MISC.  DECIDED OCTOBER 13, 1969 


APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

HENRY B. ROTHBLATT AND EMMA A. ROTHBLATT FOR APPELLANT. 
..END :












STOECKLE V. WISCONSIN, 396 U.S. 10 


       STOECKLE V. WISCONSIN

        APPEAL FROM THE SUPREME COURT OF WISCONSIN

        NO. 272, MISC.  DECIDED OCTOBER 13, 1969 


41 WIS.2D 378, 164 N.W.2D 303, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREO, THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :













PURYEAR V. HOGAN, 396 U.S. 11 


       PURYEAR V. HOGAN, DISTRICT ATTORNEY OF NEW YORK COUNTY, ET

           AL.

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK

        NO. 336, MISC.  DECIDED OCTOBER 13, 1969 


24 N.Y.2D 207, 247 N.E.2D 260, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTIOH TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

FRANK S. HOGAN, PRO SE, AND MICHAEL R. JUVILER FOR HOGAN, AND LOUIS
J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, PRO SE, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND MARIA L. MARCUS,
ASSISTANT ATTORNEY GENERAL, FOR LEFKOWITZ, APPELLEES. 
..END :





NORTH CAROLINA V. PEARCE, 395 U.S. 711 


       NORTH CAROLINA ET AL. V. PEARCE. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

   FOURTH CIRCUIT. 

        NO. 413.  ARGUED FEBRUARY 24, 1969.-- DECIDED JUNE 23,

           1969.  /1/ 


IN EACH OF THESE CASES THE RESPONDENT WAS CONVICTED OF A CRIME AND
SENTENCED TO A PRISON TERM; THE ORIGINAL CONVICTION WAS SET ASIDE IN A
POST-CONVICTION PROCEEDING FOR CONSTITUTIONAL ERROR SEVERAL YEARS
LATER; AND ON RETRIAL THE RESPONDENT WAS AGAIN CONVICTED AND
SENTENCED.  IN NO. 413, THE SENTENCE, WHEN ADDED TO THE TIME RESPONDENT
HAD SERVED, AMOUNTED TO A LONGER TOTAL SENTENCE THAN THAT ORIGINALLY
IMPOSED; AND IN NO. 418, RESPONDENT RECEIVED A LONGER SENTENCE, WITH NO
CREDIT BEING GIVEN FOR THE TIME ALREADY SERVED.  IN NEITHER CASE WAS
ANY JUSTIFICATION GIVEN FOR IMPOSITION OF THE LONGER SENTENCE. 
RESPONDENTS SOUGHT HABEAS CORPUS RELIEF IN THE DISTRICT COURTS, WHICH
IN EACH INSTANCE HELD THE LONGER SENTENCE ON RETRIAL UNCONSTITUTIONAL. 
THE COURTS OF APPEALS AFFIRMED.  HELD: 

1.  THE BASIC FIFTH AMENDMENT GUARANTEE AGAINST DOUBLE JEOPARDY,
WHICH IS ENFORCEABLE AGAINST THE STATES BY THE FOURTEENTH AMENDMENT,
BENTON V. MARYLAND, POST, P. 784, IS VIOLATED WHEN PUNISHMENT ALREADY
EXACTED FOR AN OFFENSE IS NOT FULLY "CREDITED" IN IMPOSING A NEW
SENTENCE FOR THE SAME OFFENSE.  PP. 717-719. 

2.  THERE IS NO ABSOLUTE CONSTITUTIONAL BAR TO IMPOSING A MORE
SEVERE SENTENCE ON RECONVICTION.  PP. 719-723. 

(A) THE GUARANTEE AGAINST DOUBLE JEOPARDY DOES NOT RESTRICT THE
LENGTH OF SENTENCE UPON RECONVICTION, THE POWER TO IMPOSE WHATEVER
SENTENCE IS LEGALLY AUTHORIZED BEING A COROLLARY OF THE WELL
ESTABLISHED POWER TO RETRY A DEFENDANT WHOSE CONVICTION HAS BEEN SET
ASIDE FOR AN ERROR IN THE PREVIOUS PROCEEDING.  PP. 719-721. 

(B) IMPOSITION OF A MORE SEVERE SENTENCE UPON RETRIAL DOES NOT
VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, SINCE
THERE IS NO INVIDIOUS "CLASSIFICATION" OF THOSE SUCCESSFULLY SEEKING
NEW TRIALS.  PP. 722-723. 

3.  DUE PROCESS OF LAW REQUIRES THAT VINDICTIVENESS AGAINST A
DEFENDANT FOR HAVING SUCCESSFULLY ATTACKED HIS FIRST CONVICTION MUST
PLAY NO PART IN THE SENTENCE HE RECEIVES AFTER A NEW TRIAL AND THAT A
DEFENDANT BE FREED OF ANY APPREHENSION OF RETALIATORY MOTIVATION ON THE
PART OF THE SENTENCING JUDGE.  ACCORDINGLY, THE REASONS FOR IMPOSITION
AFTER RETRIAL OF A MORE SEVERE SENTENCE MUST AFFIRMATIVELY APPEAR IN
THE RECORD AND MUST BE BASED ON OBJECTIVE INFORMATION CONCERNING THE
DEFENDANT'S IDENTIFIABLE CONDUCT AFTER THE ORIGINAL SENTENCING
PROCEEDING.  PP. 723-726. 

NO. 413, 397 F.2D 253, AND NO. 418, 396 F.2D 499, AFFIRMED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

WHEN AT THE BEHEST OF THE DEFENDANT A CRIMINAL CONVICTION HAS BEEN
SET ASIDE AND A NEW TRIAL ORDERED, TO WHAT EXTENT DOES THE CONSTITUTION
LIMIT THE IMPOSITION OF A HARSHER SENTENCE AFTER CONVICTION UPON
RETRIAL?  THAT IS THE QUESTION PRESENTED BY THESE TWO CASES. 

IN NO. 413 THE RESPONDENT PEARCE WAS CONVICTED IN A NORTH CAROLINA
COURT UPON A CHARGE OF ASSAULT WITH INTENT TO COMMIT RAPE.  THE TRIAL
JUDGE SENTENCED HIM TO PRISON FOR A TERM OF 12 TO 15 YEARS.  SEVERAL
YEARS LATER HE INITIATED A STATE POST-CONVICTION PROCEEDING WHICH
CULMINATED IN THE REVERSAL OF HIS CONVICTION BY THE SUPREME COURT OF
NORTH CAROLINA, UPON THE GROUND THAT AN INVOLUNTARY CONFESSION HAD
UNCONSTITUTIONALLY BEEN ADMITTED IN EVIDENCE AGAINST HIM, 266 N.C. 234,
145 S.E.2D 918.  HE WAS RETRIED, CONVICTED, AND SENTENCED BY THE TRIAL
JUDGE TO AN EIGHT-YEAR PRISON TERM, WHICH, WHEN ADDED TO THE TIME
PEARCE HAD ALREADY SPENT IN PRISON, THE PARTIES AGREE AMOUNTED TO A
LONGER TOTAL SENTENCE THAN THAT ORIGINALLY IMPOSED.  /1A/  THE
CONVICTION AND SENTENCE WERE AFFIRMED ON APPEAL.  268 N.C. 707, 151
S.E.2D 571.  PEARCE THEN BEGAN THIS HABEAS CORPUS PROCEEDING IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH
CAROLINA.  THAT COURT HELD, UPON THE AUTHORITY OF A THEN VERY RECENT
FOURTH CIRCUIT DECISION, PATTON V. NORTH CAROLINA, 381 F.2D 636, CERT.
DENIED, 390 U.S. 905, THAT THE LONGER SENTENCE IMPOSED UPON RETRIAL WAS
"UNCONSTITUTIONAL AND VOID."  /2/  UPON THE FAILURE OF THE STATE COURT
TO RESENTENCE PEARCE WITHIN 60 DAYS, THE FEDERAL COURT ORDERED HIS
RELEASE.  THIS ORDER WAS AFFIRMED BY THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT, 397 F.2D 253, IN A BRIEF PER CURIAM JUDGMENT
CITING ITS PATTON DECISION, AND WE GRANTED CERTIORARI.  393 U.S. 922. 

IN NO. 418 THE RESPONDENT RICE PLEADED GUILTY IN AN ALABAMA TRIAL
COURT TO FOUR SEPARATE CHARGES OF SECOND-DEGREE BURGLARY.  HE WAS
SENTENCED TO PRISON TERMS AGGREGATING 10 YEARS.  /3/  TWO AND ONE-HALF
YEARS LATER THE JUDGMENTS WERE SET ASIDE IN A STATE CORAM NOBIS
PROCEEDING, UPON THE GROUND THAT RICE HAD NOT BEEN ACCORDED HIS
CONSTITUTIONAL RIGHT TO COUNSEL.  SEE GIDEON V. WAINWRIGHT, 372 U.S.
335.  HE WAS RETRIED UPON THREE OF THE CHARGES, CONVICTED, AND
SENTENCED TO PRISON TERMS AGGREGATING 25 YEARS.  /4/  NO CREDIT WAS
GIVEN FOR THE TIME HE HAD SPENT IN PRISON ON THE ORIGINAL JUDGMENTS. 
HE THEN BROUGHT THIS HABEAS CORPUS PROCEEDING IN THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, ALLEGING THAT THE
STATE TRIAL COURT HAD ACTED UNCONSTITUTIONALLY IN FAILING TO GIVE HIM
CREDIT FOR THE TIME HE HAD ALREADY SERVED IN PRISON, AND IN IMPOSING
GROSSLY HARSHER SENTENCES UPON RETRIAL.  UNITED STATES DISTRICT JUDGE
FRANK M. JOHNSON, JR., AGREED WITH BOTH CONTENTIONS.  WHILE STATING
THAT HE DID "NOT BELIEVE THAT IT IS CONSTITUTIONALLY IMPERMISSIBLE TO
IMPOSE A HARSHER SENTENCE UPON RETRIAL IF THERE IS RECORDED IN THE
COURT RECORD SOME LEGAL JUSTIFICATION FOR IT," JUDGE JOHNSON FOUND THAT
RICE HAD BEEN DENIED DUE PROCESS OF LAW, BECAUSE "(UNDER THE EVIDENCE
IN THIS CASE, THE CONCLUSION IS INESCAPABLE THAT THE STATE OF ALABAMA
IS PUNISHING PETITIONER RICE FOR HIS HAVING EXERCISED HIS POST
CONVICTION RIGHT OF REVIEW AND FOR HAVING THE ORIGINAL SENTENCES
DECLARED UNCONSTITUTIONAL."  273 F.SUPP.  116, 121, 122.  THE JUDGMENT
OF THE DISTRICT COURT WAS AFFIRMED BY THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT, "ON THE BASIS OF JUDGE JOHNSON'S
OPINION," 396 F.2D 499, 500, AND WE GRANTED CERTIORARI.  393 U.S. 932. 

THE PROBLEM BEFORE US /5/  INVOLVES TWO RELATED BUT ANALYTICALLY
SEPARATE ISSUES.  ONE CONCERNS THE CONSTITUTIONAL LIMITATIONS UPON THE
IMPOSITION OF A MORE SEVERE PUNISHMENT AFTER CONVICTION FOR THE SAME
OFFENSE UPON RETRIAL.  THE OTHER IS THE MORE LIMITED QUESTION WHETHER,
IN COMPUTING THE NEW SENTENCE, THE CONSTITUTION REQUIRES THAT CREDIT
MUST BE GIVEN FOR THAT PART OF THE ORIGINAL SENTENCE ALREADY SERVED. 
THE SECOND QUESTION IS NOT PRESENTED IN PEARCE, FOR IN NORTH CAROLINA
IT APPEARS TO BE THE LAW THAT A DEFENDANT MUST BE GIVEN FULL CREDIT FOR
ALL TIME SERVED UNDER THE PREVIOUS SENTENCE.  STATE V. STAFFORD, 274
N.C. 519, 164 S.E.2D 371; STATE V. PAIGE, 272 N.C. 417, 158 S.E.2D 522;
STATE V. WEAVER, 264 N.C. 681, 142 S.E.2D 633.  IN ANY EVENT, PEARCE
WAS GIVEN SUCH CREDIT.  /6/ ALABAMA LAW, HOWEVER, SEEMS TO REFLECT A
DIFFERENT VIEW.  AARON V. STATE, 43 ALA.APP.  450, 192 SO.2D 456; EX
PARTE MERKES, 43 ALA.APP.  640, 198 SO.2D 789.  /7/  AND RESPONDENT
RICE, UPON BEING RESENTENCED, WAS GIVEN NO CREDIT AT ALL FOR THE TWO
AND ONE-HALF YEARS HE HAD ALREADY SPENT IN PRISON. 

WE TURN FIRST TO THE MORE LIMITED ASPECT OF THE QUESTION BEFORE US--
WHETHER THE CONSTITUTION REQUIRES THAT, IN COMPUTING THE SENTENCE
IMPOSED AFTER CONVICTION UPON RETRIAL, CREDIT MUST BE GIVEN FOR TIME
SERVED UNDER THE ORIGINAL SENTENCE.  WE THEN CONSIDER THE BROADER
QUESTION OF WHAT CONSTITUTIONAL LIMITATIONS THERE MAY BE UPON THE
IMPOSITION OF A MORE SEVERE SENTENCE AFTER RECONVICTION. 

        I. 

THE COURT HAS HELD TODAY, IN BENTON V. MARYLAND, POST, P. 784, THAT
THE FIFTH AMENDMENT GUARANTEE AGAINST DOUBLE JEOPARDY IS ENFORCEABLE
AGAINST THE STATES THROUGH THE FOURTEENTH AMENDMENT.  THAT GUARANTEE
HAS BEEN SAID TO CONSIST OF THREE SEPARATE CONSTITUTIONAL PROTECTIONS. 
/8/  IT PROTECTS AGAINST A SECOND PROSECUTION FOR THE SAME OFFENSE
AFTER ACQUITTAL.  /9/  IT PROTECTS AGAINST A SECOND PROSECUTION FOR THE
SAME OFFENSE AFTER CONVICTION.  /10/  AND IT PROTECTS AGAINST MULTIPLE
PUNISHMENTS FOR THE SAME OFFENSE.  /11/  THIS LAST PROTECTION IS WHAT
IS NECESSARILY IMPLICATED IN ANY CONSIDERATION OF THE QUESTION WHETHER,
IN THE IMPOSITION OF SENTENCE FOR THE SAME OFFENSE AFTER RETRIAL, THE
CONSTITUTION REQUIRES THAT CREDIT MUST BE GIVEN FOR PUNISHMENT ALREADY
ENDURED.  THE COURT STATED THE CONTROLLING CONSTITUTIONAL PRINCIPLE
ALMOST 100 YEARS AGO, IN THE LANDMARK CASE OF EX PARTE LANGE, 18 WALL. 
163, 168: 

     "IF THERE IS ANYTHING SETTLED IN THE JURISPRUDENCE OF ENGLAND

  AND AMERICA, IT IS THAT NO MAN CAN BE TWICE LAWFULLY PUNISHED FOR

  THE SAME OFFENSE.  AND . . . THERE HAS NEVER BEEN ANY DOUBT OF

  (THIS RULE'S) ENTIRE AND COMPLETE PROTECTION OF THE PARTY WHEN A

  SECOND PUNISHMENT IS PROPOSED IN THE SAME COURT, ON THE SAME

  FACTS, FOR THE SAME STATUTORY OFFENSE. 

        .          .          .          . 

     " . . . (THE CONSTITUTION WAS DESIGNED AS MUCH TO PREVENT THE

  CRIMINAL FROM BEING TWICE PUNISHED FOR THE SAME OFFENSE AS FROM

  BEING TWICE TRIED FOR IT."  ID., AT 173. 

WE THINK IT IS CLEAR THAT THIS BASIC CONSTITUTIONAL GUARANTEE IS
VIOLATED WHEN PUNISHMENT ALREADY EXACTED FOR AN OFFENSE IS NOT FULLY
"CREDITED" IN IMPOSING SENTENCE UPON A NEW CONVICTION FOR THE SAME
OFFENSE.  THE CONSTITUTIONAL VIOLATION IS FLAGRANTLY APPARENT IN A CASE
INVOLVING THE IMPOSITION OF A MAXIMUM SENTENCE AFTER RECONVICTION. 
SUPPOSE, FOR EXAMPLE, IN A JURISDICTION WHERE THE MAXIMUM ALLOWABLE
SENTENCE FOR LARCENY IS 10 YEARS' IMPRISONMENT, A MAN SUCCEEDS IN
GETTING HIS LARCENY CONVICTION SET ASIDE AFTER SERVING THREE YEARS IN
PRISON.  IF, UPON RECONVICTION, HE IS GIVEN A 10-YEAR SENTENCE, THEN,
QUITE CLEARLY, HE WILL HAVE RECEIVED MULTIPLE PUNISHMENTS FOR THE SAME
OFFENSE.  FOR HE WILL HAVE BEEN COMPELLED TO SERVE SEPARATE PRISON
TERMS OF THREE YEARS AND 10 YEARS, ALTHOUGH THE MAXIMUM SINGLE
PUNISHMENT FOR THE OFFENSE IS 10 YEARS' IMPRISONMENT.  THOUGH NOT SO
DRAMATICALLY EVIDENT, THE SAME PRINCIPLE OBVIOUSLY HOLDS TRUE WHENEVER
PUNISHMENT ALREADY ENDURED IS NOT FULLY SUBTRACTED FROM ANY NEW
SENTENCE IMPOSED.  /12/ 

WE HOLD THAT THE CONSTITUTIONAL GUARANTEE AGAINST MULTIPLE
PUNISHMENTS FOR THE SAME OFFENSE ABSOLUTELY REQUIRES THAT PUNISHMENT
ALREADY EXACTED MUST BE FULLY "CREDITED"  /13/  IN IMPOSING SENTENCE
UPON A NEW CONVICTION FOR THE SAME OFFENSE.  IF, UPON A NEW TRIAL, THE
DEFENDANT IS ACQUITTED, THERE IS NO WAY THE YEARS HE SPENT IN PRISON
CAN BE RETURNED TO HIM.  BUT IF HE IS RECONVICTED, THOSE YEARS CAN AND
MUST BE RETURNED-- BY SUBTRACTING THEM FROM WHATEVER NEW SENTENCE IS
IMPOSED. 

        II. 

TO HOLD THAT THE SECOND SENTENCE MUST BE REDUCED BY THE TIME SERVED
UNDER THE FIRST IS, HOWEVER, TO GIVE BUT A PARTIAL ANSWER TO THE
QUESTION BEFORE US.  /14/  WE TURN, THEREFORE, TO CONSIDERATION OF THE
BROADER PROBLEM OF WHAT CONSTITUTIONAL LIMITATIONS THERE MAY BE UPON
THE GENERAL POWER OF A JUDGE TO IMPOSE UPON RECONVICTION A LONGER
PRISON SENTENCE THAN THE DEFENDANT ORIGINALL[ RECEIVED. 

        A. 

LONG-ESTABLISHED CONSTITUTIONAL DOCTRINE MAKES CLEAR THAT, BEYOND
THE REQUIREMENT ALREADY DISCUSSED, THE GUARANTEE AGAINST DOUBLE
JEOPARDY IMPOSES NO RESTRICTIONS THE LENGTH OF A SENTENCE IMPOSED UPON
RECONVICTION.  AT LEAST SINCE 1896,WHEN UNITED STATES V. BALL, 163 U.S.
662, WAS DECIDED, IT HAS BEEN SETTLED THAT THIS CONSTITUTIONAL
GUARANTEE IMPOSES NO LIMITATIONS WHATEVER UPON THE POWER TO RETRY A
DEFENDANT WHO HAS SUCCEEDED IN GETTING HIS FIRST CONVICTION SET ASIDE. 
/15/  "THE PRINCIPLE THAT THIS PROVISION DOES NOT PRECLUDE THE
GOVERNMENT'S RETRYING A DEFENDANT WHOSE CONVICTION IS SET ASIDE BECAUSE
OF AN ERROR IN THE PROCEEDINGS LEADING TO CONVICTION IS A WELL
ESTABLISHED PART OF OUR CONSTITUTIONAL JURISPRUDENCE."  UNITED STATES
V. TATEO, 377 U.S. 463, 465.  AND, AT LEAST SINCE 1919, WHEN STROUD V.
UNITED STATES, 251 U.S. 15, WAS DECIDED, IT HAS BEEN SETTLED THAT A
COROLLARY OF THE POWER TO RETRY A DEFENDANT IS THE UPON THE DEFENDANT'S
RECONVICTION, TO IMPOSE WHATEVER SENTENCE MAY BE LEGALLY AUTHORIZED,
WHETHER OR NOT IT IS GREATER THAN THE SENTENCE IMPOSED AFTER THE FIRST
CONVICTION.  /16/  "THAT A DEFENDANT'S CONVICTION IS OVERTURNED ON
COLLATERAL RATHER THAN DIRECT ATTACK IS IRRELEVANT FOR THESE PURPOSES,
SEE ROBINSON V. UNITED STATES, 144 F.2D 392, 396, 397, AFF'D ON ANOTHER
GROUND, 324 U.S. 282, STATES V. TATEO, SUPRA, AT 466. 

ALTHOUGH THE RATIONALE FOR THIS "WELL-ESTABLISHED PART OF OUR
CONSTITUTIONAL JURISPRUDENCE" HAS BEEN VARIOUSLY VERBALIZED, IT RESTS
ULTIMATELY UPON THE PREMISE THAT THE ORIGINAL CONVICTION HAS, AT THE
DEFENDANT'S BEHEST, BEEN WHOLLY NULLIFIED AND THE SLATE WIPED CLEAN. 
AS TO WHATEVER PUNISHMENT HAS ACTUALLY BEEN SUFFERED UNDER THE FIRST
CONVICTION THAT PREMISE IS, OF COURSE, AN UNMITIGATED FICTION, AS WE
HAVE RECOGNIZED IN PART I OF THIS OPINION.  /17/  BUT, SO FAR AS THE
CONVICTION ITSELF GOES, AND THAT PART OF THE SENTENCE THAT HAS NOT YET
BEEN SERVED, IT IS NO MORE THAN A SIMPLE STATEMENT OF FACT TO SAY THAT
THE SLATE HAS BEEN WIPED CLEAN.  THE CONVICTION HAS BEEN SET ASIDE, AND
THE UNEXPIRED PORTION OF THE ORIGINAL SENTENCE WILL NEVER BE SERVED.  A
NEW TRIAL MAY RESULT IN AN ACQUITTAL.  BUT IF IT DOES RESULT IN A
CONVICTION, WE CANNOT SAY THAT THE CONSTITUTIONAL GUARANTEE AGAINST
DOUBLE JEOPARDY OF ITS OWN WEIGHT RESTRICTS THE IMPOSITION OF AN
OTHERWISE LAWFUL SINGLE PUNISHMENT FOR THE OFFENSE IN QUESTION.  TO
HOLD TO THE CONTRARY WOULD BE TO CAST DOUBT UPON THE WHOLE VALIDITY OF
THE BASIC PRINCIPLE UNUNCIATED IN UNITED STATES V. BALL, SUPRA, AND
UPON THE UNBROKEN LINE OF DECISIONS THAT HAVE FOLLOWED THAT PRINCIPLE
FOR ALMOST 75 YEARS.  WE THINK THOSE DECISIONS ARE ENTIRELY SOUND, AND
WE DECLINE TO DEPART FROM THE CONCEPT THEY REFLECT.  /18/

        B. 

THE OTHER ARGUMENT ADVANCED IN SUPPORT OF THE PROPOSITION THAT THE
CONSTITUTION ABSOLUTELY FORBIDS THE IMPOSITION OF A MORE SEVERE
SENTENCE UPON RETRIAL IS GROUNDED UPON THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  THE THEORY ADVANCED IS THAT, SINCE CONVICTS
WHO DO NOT SEEK NEW TRIALS CANNOT HAVE THEIR SENTENCES INCREASED, IT
CREATES AN INVIDIOUS CLASSIFICATION TO IMPOSE THAT RISK ONLY UPON THOSE
WHO SUCCEED IN GETTING THEIR ORIGINAL CONVICTIONS SET ASIDE.  THE
ARGUMENT, WHILE NOT LACKING IN INGENUITY, CANNOT WITHSTAND CLOSE
EXAMINATION.  IN THE FIRST PLACE, WE DEAL HERE, NOT WITH INCREASES IN
EXISTING SENTENCES, BUT WITH THE IMPOSITION OF WHOLLY NEW SENTENCES
AFTER WHOLLY NEW TRIALS.  PUTTING THAT CONCEPTUAL NICETY TO ONE SIDE,
HOWEVER, THE PROBLEM BEFORE US SIMPLY CANNOT BE RATIONALLY DEALT WITH
IN TERMS OF "CLASSIFICATIONS."  A MAN WHO IS RETRIED AFTER HIS FIRST
CONVICTION HAS BEEN SET ASIDE MAY BE ACQUITTED.  IF CONVICTED, HE MAY
RECEIVE A SHORTER SENTENCE, HE MAY RECEIVE THE SAME SENTENCE, OR HE MAY
RECEIVE A LONGER SENTENCE THAN THE ONE ORIGINALLY IMPOSED.  THE RESULT
MAY DEPEND UPON A PARTICULAR COMBINATION OF INFINITE VARIABLES PECULIAR
TO EACH INDIVIDUAL TRIAL.  IT SIMPLY CANNOT BE SAID THAT A STATE HAS
INVIDIOUSLY "CLASSIFIED" THOSE WHO SUCCESSFULLY SEEK NEW TRIALS, ANY
MORE THAN THAT THE STATE HAS INVIDIOUSLY "CLASSIFIED" THOSE PRISONERS
WHOSE CONVICTIONS ARE NOT SET ASIDE BY DENYING THE MEMBERS OF THAT
GROUP THE OPPORTUNITY TO BE ACQUITTED.  TO FIT THE PROBLEM OF THIS CASE
INTO AN EQUAL PROTECTION FRAMEWORK IS A TASK TOO PROCRUSTEAN TO BE
RATIONALLY ACCOMPLISHED. 

        C. 

WE HOLD, THEREFORE, THAT NEITHER THE DOUBLE JEOPARDY PROVISION NOR
THE EQUAL PROTECTION CLAUSE IMPOSES AN ABSOLUTE BAR TO A MORE SEVERE
SENTENCE UPON RECONVICTION.  A TRIAL JUDGE IS NOT CONSTITUTIONALLY
PRECLUDED, IN OTHER WORDS, FROM IMPOSING A NEW SENTENCE, WHETHER
GREATER OR LESS THAN THE ORIGINAL SENTENCE, IN THE LIGHT OF EVENTS
SUBSEQUENT TO THE FIRST TRIAL THAT MAY HAVE THROWN NEW LIGHT UPON THE
DEFENDANT'S "LIFE, HEALTH, HABITS, CONDUCT, AND MENTAL AND MORAL
PROPENSITIES."  WILLIAMS V. NEW YORK, 337 U.S. 241, 245.  SUCH
INFORMATION MAY COME TO THE JUDGE'S ATTENTION FROM EVIDENCE ADDUCED AT
THE SECOND TRIAL ITSELF, FROM A NEW PRESENTENCE INVESTIGATION, FROM THE
DEFENDANT'S PRISON RECORD, OR POSSIBLY FROM OTHER SOURCES.  THE FREEDOM
OF A SENTENCING JUDGE TO CONSIDER THE DEFENDANT'S CONDUCT SUBSEQUENT TO
THE FIRST CONVICTION IN IMPOSING A NEW SENTENCE IS NO MORE THAN
CONSONANT WITH THE PRINCIPLE, FULLY APPROVED IN WILLIAMS V. NEW YORK,
SUPRA, THAT A STATE MAY ADOPT THE "PREVALENT MODERN PHILOSOPHY OF
PENOLOGY THAT THE PUNISHMENT SHOULD FIT THE OFFENDER AND NOT MERELY THE
CRIME."  ID., AT 247. 

TO SAY THAT THERE EXISTS NO ABSOLUTE CONSTITUTIONAL BAR TO THE
IMPOSITION OF A MORE SEVERE SENTENCE UPON RETRIAL IS NOT, HOWEVER, TO
END THE INQUIRY.  THERE REMAINS FOR CONSIDERATION THE IMPACT OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

IT CAN HARDLY BE DOUBTED THAT IT WOULD BE A FLAGRANT VIOLATION OF
THE FOURTEENTH AMENDMENT FOR A STATE TRIAL COURT TO FOLLOW AN ANNOUNCED
PRACTICE OF IMPOSING A HEAVIER SENTENCE UPON EVERY RECONVICTED
DEFENDANT FOR THE EXPLICIT PURPOSE OF PUNISHING THE DEFENDANT FOR HIS
HAVING SUCCEEDED IN GETTING HIS ORIGINAL CONVICTION SET ASIDE.  WHERE,
AS IN EACH OF THE CASES BEFORE US, THE ORIGINAL CONVICTION HAS BEEN SET
ASIDE BECAUSE OF A CONSTITUTIONAL ERROR, THE IMPOSITION OF SUCH A
PUNISHMENT, "PENALIZING THOSE WHO CHOOSE TO EXERCISE"  CONSTITUTIONAL
RIGHTS, "WOULD BE PATENTLY UNCONSTITUTIONAL."  UNITED STATES V.
JACKSON, 390 U.S. 570, 581.  AND THE VERY THREAT INHERENT IN THE
EXISTENCE OF SUCH A PUNITIVE POLICY WOULD, WITH RESPECT TO THOSE STILL
IN PRISON, SERVE TO "CHILL THE EXERCISE OF BASIC CONSTITUTIONAL
RIGHTS."  ID., AT 582.  SEE ALSO GRIFFIN V. CALIFORNIA, 380 U.S. 609;
CF. JOHNSON V. AVERY, 393 U.S. 483.  BUT EVEN IF THE FIRST CONVICTION
HAS BEEN SET ASIDE FOR NONCONSTITUTIONAL ERROR, THE IMPOSITION OF A
PENALTY UPON THE DEFENDANT FOR HAVING SUCCESSFULLY PURSUED A STATUTORY
RIGHT OF APPEAL OR COLLATERAL REMEDY WOULD BE NO LESS A VIOLATION OF
DUE PROCESS OF LAW.  /19/  "A NEW SENTENCE, WITH ENHANCED PUNISHMENT,
BASED UPON SUCH A REASON, WOULD BE A FLAGRANT VIOLATION OF THE RIGHTS
OF THE DEFENDANT."  NICHOLS V. UNITED STATES, 106 F. 672, 679.  A COURT
IS "WITHOUT RIGHT TO . . . PUT A PRICE ON AN APPEAL.  A DEFENDANT'S
EXERCISE OF A RIGHT OF APPEAL MUST BE FREE AND UNFETTERED . . . . (IT
IS UNFAIR TO USE THE GREAT POWER GIVEN TO THE COURT TO DETERMINE
SENTENCE TO PLACE A DEFENDANT IN THE DILEMMA OF MAKING AN UNFREE
CHOICE."  WORCESTER V. COMMISSIONER, 370 F.2D 713, 718.  SEE SHORT V.
UNITED STATES, 120 U.S.APP.D.C. 165, 167, 344 F.2D 550.  552.  "THIS
COURT HAS NEVER HELD THAT THE STATES ARE REQUIRED TO ESTABLISH AVENUES
OF APPELLATE REVIEW, BUT IT IS NOW FUNDAMENTAL THAT, ONCE ESTABLISHED,
THESE AVENUES MUST BE KEPT FREE OF UNREASONED DISTINCTIONS THAT CAN
ONLY IMPEDE OPEN AND EQUAL ACCESS TO THE COURTS.  GRIFFIN V. ILLINOIS,
351 U.S. 12; DOUGLAS V. CALIFORNIA, 372 U.S. 353; LANE V. BROWN, 372
U.S. 477; DRAPER V. WASHINGTON, 372 U.S. 487."  RINALDI V. YEAGER, 384
U.S. 305, 310-311. 

DUE PROCESS OF LAW, THEN, REQUIRES THAT VINDICTIVENESS AGAINST A
DEFENDANT FOR HAVING SUCCESSFULLY ATTACKED HIS FIRST CONVICTION MUST
PLAY NO PART IN THE SENTENCE HE RECEIVES AFTER A NEW TRIAL.  AND SINCE
THE FEAR OF SUCH VINDICTIVENESS MAY UNCONSTITUTIONALLY DETER A
DEFENDANT'S EXERCISE OF THE RIGHT TO APPEAL OR COLLATERALLY ATTACK HIS
FIRST CONVICTION, DUE PROCESS ALSO REQUIRES THAT A DEFENDANT BE FREED
OF APPREHENSION OF SUCH A RETALIATORY MOTIVATION ON THE PART OF THE
SENTENCING JUDGE.  /20/ 

IN ORDER TO ASSURE THE ABSENCE OF SUCH A MOTIVATION, WE HAVE
CONCLUDED THAT WHENVER A JUDGE IMPOSES A MORE SEVERE SENTENCE UPON A
DEFENDANT AFTER A NEW TRIAL, THE REASONS FOR HIS DOING SO MUST
AFFIRMATIVELY APPEAR.  THOSE REASONS MUST BE BASED UPON OBJECTIVE
INFORMATION CONCERNING IDENTIFIABLE CONDUCT ON THE PART OF THE
DEFENDANT OCCURRING AFTER THE TIME OF THE ORIGINAL SENTENCING
PROCEEDING.  AND THE FACTUAL DATA UPON WHICH THE INCREASED SENTENCE IS
BASED MUST BE MADE PART OF THE RECORD, SO THAT THE CONSTITUTIONAL
LEGITIMACY OF THE INCREASED SENTENCE MAY BE FULLY REVIEWED ON APPEAL. 

WE DISPOSE OF THE TWO CASES BEFORE US IN THE LIGHT OF THESE
CONCLUSIONS.  IN NO. 418 JUDGE JOHNSON NOTED THAT "THE STATE OF ALABAMA
OFFERS NO EVIDENCE ATTEMPTING TO JUSTIFY THE INCREASE IN RICE'S
ORIGINAL SENTENCES . . . ."  274 F.SUPP.,AT 121.  HE FOUND IT "SHOCKING
THAT THE STATE OF ALABAMA HAS NOT ATTEMPTED TO EXPLAIN OR JUSTIFY THE
INCREASE IN RICE'S PUNISHMENT-- IN THESE THREE CASES, OVER THREEFOLD." 
ID., AT 121-122.  AND HE FOUND THAT "THE CONCLUSION IS INESCAPABLE THAT
THE STATE OF ALABAMA IS PUNISHING PETITIONER RICE FOR HIS HAVING
EXERCISED HIS POST-CONVICTION RIGHT OF REVIEW . . . ."  ID., AT 122. 
IN NO. 413 THE SITUATION IS NOT SO DRAMATICALLY CLEAR.  NONETHELESS,
THE FACT REMAINS THAT NEITHER AT THE TIME THE INCREASED SENTENCE WAS
IMPOSED UPON PEARCE, NOR AT ANY STAGE IN THIS HABEAS CORPUS PROCEEDING,
HAS THE STATE OFFERED ANY REASON OR JUSTIFICATION FOR THAT SENTENCE
BEYOND THE NAKED POWER TO IMPOSE IT.  WE CONCLUDE THAT IN EACH OF THE
CASES BEFORE US, THE JUDGMENT SHOULD BE AFFIRMED. 

              IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 418, SIMPSON, WARDEN V. RICE, ON CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

/1A/ THE APPROXIMATE EXPIRATION DATE OF THE ORIGINAL SENTENCE,
ASSUMING ALL ALLOWANCES OF TIME FOR GOOD BEHAVIOR, WAS NOVEMBER 13,
1969.  THE APPROXIMATE EXPIRATION DATE OF THE NEW SENTENCE, ASSUMING
ALL ALLOWANCES OF TIME FOR GOOD BEHAVIOR, WAS OCTOBER 10, 1972. 

/2/  IN PATTON, THE COURT OF APPEALS FOR THE FOURTH CIRCUIT HAD HELD
THAT "INCREASING PATTON'S PUNISHMENT AFTER THE REVERSAL OF HIS INITIAI
CONVICTION CONSTITUTES A VIOLATION OF HIS FOURTEENTH AMENDMENT RIGHTS
IN THAT IT EXACTED AN UNCONSTITUTIONAL CONDITION TO THE EXERCISE OF HIS
RIGHT TO A FAIR TRIAL, ARBITRARILY DENIED HIM THE EQUAL PROTECTION OF
THE LAW, AND PLACED HIM TWICE IN JEOPARDY OF PUNISHMENT FOR THE SAME
OFFENSE."  381 F.2D, AT 646. 

/3/  HE WAS SENTENCED TO FOUR YEARS IN PRISON UPON THE FIRST COUNT,
AND TWO YEARS UPON EACH OF THE OTHER THREE COUNTS, THE SENTENCES TO BE
SERVED CONSECUTIVELY. 

/4/  HE WAS SENTENCED TO A PRISON TERM OF 10 YEARS ON THE FIRST
COUNT, 10 YEARS ON THE SECOND COUNT, AND FIVE YEARS ON THE FOURTH
COUNT, THE SENTENCES TO BE SERVED CONSECUTIVELY.  THE THIRD COUNT WAS
DROPPED UPON MOTION OF THE PROSECUTION, APPARENTLY BECAUSE THE CHIEF
WITNESS FOR THE PROSECUTION HAD LEFT THE STATE. 

/5/  THE UNITED STATES COURTS OF APPEALS HAVE REACHED CONFLICTING
RESULTS IN DEALING WITH THE BASIC PROBLEM HERE PRESENTED.  IN ADDITION
TO THE FOURTH AND FIFTH CIRCUIT DECISIONS HERE UNDER REVIEW, SEE MARANO
V. UNITED STATES, 374 F.2D 583 (C.A. 1ST CIR.); UNITED STATES V. COKE,
404 F.2D 836 (C.A. 2D CIR.); STARNER V. RUSSELL, 378 F.2D 808 (C.A. 3D
CIR.); UNITED STATES V. WHITE, 382 F.2D 445 (C.A. 7TH CIR.); WALSH V.
UNITED STATES, 374 F.2D 421 (C.A. 9TH CIR.); NEWMAN V. RODRIGUEZ, 375
F.2D 712 (C.A. 10TH CIR.).  THE STATE COURTS HAVE ALSO BEEN FAR FROM
UNANIMOUS.  ALTHOUGH MOST OF THE STATES SEEM EITHER NOT TO HAVE
CONSIDERED THE PROBLEM, OR TO HAVE IMPOSED ONLY THE GENERALLY
APPLICABLE STATUTORY LIMITS UPON SENTENCES AFTER RETRIAL, A FEW STATES
HAVE PROHIBITED MORE SEVERE SENTENCES UPON RETRIAL THAN WERE IMPOSED AT
THE ORIGINAL TRIAL.  SEE PEOPLE V. HENDERSON, 60 CAL.2D 482, 386 P.2D
677; PEOPLE V. ALI, 66 CAL.2D 277, 424 P.2D 932; STATE V. TURNER, 247
ORE.  301, 429 P.2D 565; STATE V. WOLF, 46 N.J. 301, 216 A.2D 586;
STATE V. LEONARD, 39 WIS.2D 461, 159 N.W.2D 577. 

/6/  "THE COURT:  IT IS THE INTENTION OF THIS COURT TO GIVE THE
DEFENDANT A SENTENCE OF FIFTEEN YEARS IN THE STATE PRISON; HOWEVER, IT
APPEARS TO THE COURT FROM THE RECORDS AVAILABLE FROM THE PRISON
DEPARTMENT THAT THE DEFENDANT HAS SERVED 6 YEARS, 6 MONTHS AND 17 DAYS
FLAT AND GAIN TIME COMBINED, AND THE COURT IN PASSING SENTENCE IN THIS
CASE IS TAKING INTO CONSIDERATION THE TIME ALREADY SERVED BY THE
DEFENDANT.  IT IS THE JUDGMENT OF THIS COURT THAT THE DEFENDANT BE
CONFINED TO THE STATE'S PRISON FOR A PERIOD OF EIGHT YEARS." 

/7/  A RECENT OPINION OF THE SUPREME COURT OF ALABAMA INDICATES THAT
STATE LAW DOES REQUIRE CREDIT FOR TIME SERVED UNDER THE ORIGINAL
SENTENCE AT LEAST TO THE EXTENT THAT THE TOTAL PERIOD OF IMPRISONMENT
WOULD OTHERWISE EXCEED THE ABSOLUTE STATUTORY MAXIMUM THAT COULD BE
IMPOSED FOR THE OFFENSE IN QUESTION.  "WITHOUT SUCH CREDIT DEFENDANT
WOULD BE SERVING TIME BEYOND THE MAXIMUM FIXED BY LAW FOR THE OFFENSE .
. . CHARGED IN THE INDICTMENT."  GOOLSBY V. STATE, 283 ALA. 269, 215
SO.2D 602. 

/8/ SEE NOTE, TWICE IN JEOPARDY, 75 YALE L.J. 262, 265-266 (1965). 

/9/  UNITED STATES V. BALL, 163 U.S. 662; GREEN V. UNITED STATES,
355 U.S. 184. 

/10/  IN RE NIELSEN, 131 U.S. 176. 

/11/  EX PARTE LANGE, 18 WALL.  163; UNITED STATES V. BENZ, 282 U.S.
304, 307; UNITED STATES V. SACCO, 367 F.2D 368; UNITED STATES V. ADAMS,
362 F.2D 210; KENNEDY V. UNITED STATES, 330 F.2D 26. 

/12/  WE HAVE SPOKEN IN TERMS OF IMPRISONMENT, BUT THE SAME RULE
WOULD BE EQUALLY APPLICABLE WHERE A FINE HAD BEEN ACTUALLY PAID UPON
THE FIRST CONVICTION.  ANY NEW FINE IMPOSED UPON RECONVICTION WOULD
HAVE TO BE DECREASED BY THE AMOUNT PREVIOUSLY PAID. 

/13/  SUCH CREDIT MUST, OF COURSE, INCLUDE THE TIME CREDITED DURING
SERVICE OF THE FIRST PRISON SENTENCE FOR GOOD BEHAVIOR, ETC. 

/14/  IN MOST SITUATIONS, EVEN WHEN TIME SERVED UNDER THE ORIGINAL
SENTENCE IS FULLY TAKEN INTO ACCOUNT, A JUDGE CAN STILL SENTENCE A
DEFENDANT TO A LONGER TERM IN PRISON THAN WAS ORIGINALLY IMPOSED.  THAT
IS TRUE WITH RESPECT TO BOTH CASES BEFORE US.  IN THE PEARCE CASE,
CREDIT FOR TIME PREVIOUSLY SERVED WAS GIVEN.  SEE N. 6, SUPRA.  IN THE
RICE CASE CREDIT FOR THE TWO AND ONE-HALF YEARS SERVED WAS NOT GIVEN,
BUT EVEN IF IT HAD BEEN, THE SENTENCING JUDGE COULD HAVE REACHED THE
SAME RESULT THAT HE DID REACH SIMPLY BY SENTENCING RICE TO 27 1/2 YEARS
IN PRISON.  THAT WOULD HAVE BEEN PERMISSIBLE UNDER ALABAMA LAW, SINCE
RICE WAS CONVICTED OF THREE COUNTS OF SECOND-DEGREE BURGLARY, AND ON
EACH COUNT A MAXIMUM SENTENCE OF 10 YEARS' IMPRISONMENT COULD HAVE BEEN
IMPOSED.  ALA. CODE, TIT. 14, SEC. 86 (1958). 

/15/  SEE, E.G., STROUD V. UNITED STATES, 251 U.S. 15; BRYAN V.
UNITED STATES, 338 U.S. 552; FORMAN V. UNITED STATES, 361 U.S. 416;
UNITED STATES V. TATEO, 377 U.S. 463. 

/16/  IN STROUD THE DEFENDANT WAS CONVICTED OF FIRST-DEGREE MURDER
AND SENTENCED TO LIFE IMPRISONMENT.  AFTER REVERSAL OF THIS CONVICTION,
THE DEFENDANT WAS RETRIED, RECONVICTED OF THE SAME OFFENSE, AND
SENTENCED TO DEATH.  THIS COURT UPHELD THE CONVICTION AGAINST THE
DEFENDANT'S CLAIM THAT HIS CONSTITUTIONAL RIGHT NOT TO BE TWICE PUT IN
JEOPARDY HAD BEEN VIOLATED.  SEE ALSO MURPH[ /. MASSACHUSETTS, 177 U.S.
155; ROBINSON V. UNITED STATES, 324 U.S. 282, AFFIRMING 144 F.2D 392. 
THE COURT'S DECISION IN GREEN V. UNITED STATES, 355 U.S. 184, IS OF NO
APPLICABILITY TO THE PRESENT PROBLEM.  THE GREEN DECISION WAS BASED
UPON THE DOUBLE JEOPARDY PROVISION'S GUARANTEE AGAINST RETRIAL FOR AN
OFFENSE OF WHICH THE DEFENDANT WAS ACQUITTED. 

/17/  CF. KING V. UNITED STATES, 69 APP.D.C. 10, 12-13, 98 F.2D 291,
293-294:  "THE GOVERNMENT'S BRIEF SUGGESTS, IN THE VEIN OF THE MIKADO,
THAT BECAUSE THE FIRST SENTENCE WAS VOID APPELLANT 'HAS SERVED NO
SENTENCE BUT HAS MERELY SPENT TIME IN THE PENITENTIARY;' THAT SINCE HE
SHOULD NOT HAVE BEEN IMPRISONED AS HE WAS, HE WAS NOT IMPRISONED AT
ALL." 

/18/  "WHILE DIFFERENT THEORIES HAVE BEEN ADVANCED TO SUPPORT THE
PERMISSIBILITY OF RETRIAL, OF GREATER IMPORTANCE THAN THE CONCEPTUAL
ABSTRACTIONS EMPLOYED TO EXPLAIN THE BALL PRINCIPLE ARE THE
IMPLICATIONS OF THAT PRINCIPLE FOR THE SOUND ADMINISTRATION OF
JUSTICE.  CORRESPONDING TO THE RIGHT OF AN ACCUSED TO BE GIVEN A FAIR
TRIAL IS THE SOCIETAL INTEREST IN PUNISHING ONE WHOSE GUILT IS CLEAR
AFTER HE HAS OBTAINED SUCH A TRIAL.  IT WOULD BE A HIGH PRICE INDEED
FOR SOCIETY TO PAY WERE EVERY ACCUSED GRANTED IMMUNITY FROM PUNISHMENT
BECAUSE OF ANY DEFECT SUFFICIENT TO CONSTITUTE REVERSIBLE ERROR IN THE
PROCEEDINGS LEADING TO CONVICTION.  FROM THE STANDPOINT OF A DEFENDANT,
IT IS AT LEAST DOUBTFUL THAT APPELLATE COURTS WOULD BE AS ZEALOUS AS
THEY NOW ARE IN PROTECTING AGAINST THE EFFECTS OF IMPROPRIETIES AT THE
TRIAL OR PRETRIAL STAGE IF THEY KNEW THAT REVERSAL OF A CONVICTION
WOULD PUT THE ACCUSED IRREVOCABLY BEYOND THE REACH OF FURTHER
PROSECUTION.  IN REALITY, THEREFORE, THE PRACTICE OF RETRIAL SERVES
DEFENDANTS' RIGHTS AS WELL AS SOCIETY'S INTEREST."  UNITED STATES V.
TATEO, 377 U.S. 463 466. 

/19/  SEE VAN ALSTYNE, IN GIDEON'S WAKE:  HARSHER PENALTIES AND THE
"SUCCESSFUL" CRIMINAL APPELLANT, 74 YALE L.J. 606 (1965); NOTE,
UNCONSTITUTIONAL CONDITIONS, 73 HARV.L.REV.  1595 (1960). 

/20/  THE EXISTENCE OF A RETALIATORY MOTIVATION WOULD, OF COURSE, BE
EXTREMELY DIFFICULT TO PROVE IN ANY INDIVIDUAL CASE.  BUT DATA HAVE
BEEN COLLECTED TO SHOW THAT INCREASED SENTENCES ON RECONVICTION ARE FAR
FROM RARE.  SEE NOTE, CONSTITUTIONAL LAW:  INCREASED SENTENCE AND
DENIAL OF CREDIT ON RETRIAL SUSTAINED UNDER TRADITIONAL WAIVER THEORY,
1965 DUKE L.J. 395.  A TOUCHING BIT OF EVIDENCE SHOWING THE FEAR OF
SUCH A VINDICTIVE POLICY WAS NOTED BY THE TRIAL JUDGE IN PATTON V.
NORTH CAROLINA, 256 F.SUPP.  225, WHO QUOTED A LETTER HE HAD RECENTLY
RECEIVED FROM A PRISONER: 

"DEAR SIR:     "I AM IN THE MECKLENBURG COUNTY JAIL.  MR. . . .
CHOSE TO RE-TRY ME AS I KNEW HE WOULD. 

        .          .  .          . 

"SIR THE OTHER DEFENDANT IN THIS CASE WAS SET FREE AFTER SERVING 15
MONTHS OF HIS SENTENCE, I HAVE SERVED 34 MONTHS AND NOW I AM TO BE
TRIED AGAIN AND WITH ALL PROBILITY I WILL RECEIVE A HEAVIER SENTENCE
THEN BEFORE AS YOU KNOW SIR MY SENTENCE AT THE FIRST TRILE WAS 20 TO 30
YEARS.  I KNOW IT IS USUALLY THE COURTS PROSEDURE TO GIVE A LARGER
SENTENCE WHEN A NEW TRILE IS GRANTED I GUESS THIS IS TO DISCOURAGE
PETITIONERS. 

"YOUR HONOR, I DON'T WANT A NEW TRILE I AM AFRAID OF MORE TIME . . .
.     "YOUR HONOR, I KNOW YOU HAVE TRIED TO HELP ME AND GOD KNOWS I
APRECEATE THIS BUT PLEASE SIR DON'T LET THE STATE RE-TRY ME IF THERE IS
ANY WAY YOU CAN PREVENT IT." 

         "VERY TRULY YOURS" 

ID., AT 231, N. 7. 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE MARSHALL JOINS, CONCURRING. 

ALTHOUGH I AGREE WITH THE COURT AS TO THE REACH OF DUE PROCESS, I
WOULD GO FURTHER.  IT IS MY VIEW THAT IF FOR ANY REASON A NEW TRIAL IS
GRANTED AND THERE IS A CONVICTION A SECOND TIME, THE SECOND PENALTY
IMPOSED CANNOT EXCEED THE FIRST PENALTY, IF RESPECT IS HAD FOR THE
GUARANTEE AGAINST DOUBLE JEOPARDY. 

THE THEORY OF DOUBLE JEOPARDY IS THAT A PERSON NEED RUN THE GANTLET
ONLY ONCE.  THE GANTLET IS THE RISK OF THE RANGE OF PUNISHMENT WHICH
THE STATE OR FEDERAL GOVERNMENT IMPOSES FOR THAT PARTICULAR CONDUCT. 
IT MAY BE A YEAR TO 25 YEARS, OR 20 YEARS TO LIFE, OR DEATH.  HE RISKS
THE MAXIMUM PERMISSLBLE PUNISHMENT WHEN FIRST TRIED.  THAT RISK HAVING
BEEN FACED ONCE NEED NOT BE FACED AGAIN.  AND THE FACT THAT HE TAKES AN
APPEAL DOES NOT WAIVE HIS CONSTITUTIONAL DEFENSE OF FORMER JEOPARDY TO
A SECOND PROSECUTION.  GREEN V. UNITED STATES, 355 U.S. 184, 191-193. 

IN THE GREEN CASE, THE DEFENDANT WAS CHARGED WITH ARSON ON ONE COUNT
AND ON A SECOND COUNT WAS CHARGED WITH EITHER FIRST-DEGREE MURDER
CARRYING A MANDATORY DEATH SENTENCE, OR SECOND-DEGREE MURDER CARRYING A
MAXIMUM SENTENCE OF LIFE IMPRISONMENT.  THE JURY FOUND HIM GUILTY OF
ARSON AND SECOND-DEGREE MURDER BUT THE VERDICT WAS SILENT AS TO FIRST
DEGREE MURDER.  HE APPEALED THE CONVICTION AND OBTAINED A REVERSAL.  ON
A REMAND HE WAS TRIED AGAIN.  THIS TIME HE WAS CONVICTED OF FIRST
DEGREE MURDER AND SENTENCED TO DEATH-- HENCE HIS COMPLAINT OF FORMER
JEOPARDY.  WE HELD THAT THE GUARANTEE OF DOUBLE JEOPARDY APPLIED AND
THAT THE DEFENDANT, HAVING BEEN "IN DIRECT PERIL OF BEING CONVICTED AND
PUNISHED FOR FIRST DEGREE MURDER AT HIS FIRST TRIAL" COULD NOT BE
"FORCED TO RUN THE GANTLET" TWICE.  355 U.S.,AT 190. 

IT IS ARGUED THAT THAT CASE IS DIFFERENT BECAUSE THERE WERE TWO
DIFFERENT CRIMES WITH DIFFERENT PUNISHMENTS PROVIDED BY STATUTE FOR
EACH ONE.  THAT, HOWEVER, IS A MATTER OF SEMANTICS.  "IT IS IMMATERIAL
TO THE BASIC PURPOSE OF THE CONSTITUTIONAL PROVISION AGAINST DOUBLE
JEOPARDY WHETHER THE LEGISLATURE DIVIDES A CRIME INTO DIFFERENT DEGREES
CARRYING DIFFERENT PUNISHMENTS OR ALLOWS THE COURT OR JURY TO FIX
DIFFERENT PUNISHMENTS FOR THE SAME CRIME."  PEOPLE V. HENDERSON, 60
CAL.2D 482, 497, 386 P.2D 677, 686 (1963) (TRAYNOR, J.). 

FROM THE POINT OF VIEW OF THE INDIVIDUAL AND HIS LIBERTY, THE RISK
HERE OF GETTING FROM ONE TO 15 YEARS FOR SPECIFIED CONDUCT IS DIFFERENT
ONLY IN DEGREE FROM THE RISK IN GREEN OF GETTING LIFE IMPRISONMENT OR
CAPITAL PUNISHMENT FOR SPECIFIED CONDUCT.  INDEED, THAT MATTER WAS WELL
UNDERSTOOD BY THE DISSENTERS IN GREEN: 

"AS A PRACTICAL MATTER, AND ON ANY BASIS OF HUMAN VALUES, IT IS
SCARCELY POSSIBLE TO DISTINGUISH A CASE IN WHICH THE DEFENDANT IS
CONVICTED OF A GREATER OFFENSE FROM ONE IN WHICH HE IS CONVICTED OF AN
OFFENSE THAT HAS THE SAME NAME AS THAT OF WHICH HE WAS PREVIOUSLY
CONVICTED BUT CARRIES A SIGNIFICANTLY DIFFERENT PUNISHMENT, NAMELY
DEATH RATHER THAN IMPRISONMENT."  355 U.S.,AT 213 (FRANKFURTER, J.,
DISSENTING).  /1/ 

THE DEFENDANTS IN THE PRESENT CASES AT THE FIRST TRIAL FACED THE
RISK OF MAXIMUM PUNISHMENT AND RECEIVED LESS.  IN THE SECOND TRIAL THEY
WERE MADE TO RUN THE GANTLET TWICE, SINCE THE COURT TODAY HOLDS THAT
THE PENALTIES CAN BE INCREASED. 

IT WAS ESTABLISHED AT AN EARLY DATE THAT THE FIFTH AMENDMENT WAS
DESIGNED TO PREVENT AN ACCUSED FROM RUNNING THE RISK OF "DOUBLE
PUNISHMENT."  UNITED STATES V. EWELL, 383 U.S. 116, 124.  WHEN MADISON
INTRODUCED TO THE FIRST CONGRESS HIS DRAFT OF WHAT BECAME THE DOUBLE
JEOPARDY CLAUSE, IT READ: 

     "NO PERSON SHALL BE SUBJECT, EXCEPT IN CASES OF IMPEACHMENT,
TO

  MORE THAN ONE PUNISHMENT OR ONE TRIAL FOR THE SAME OFFENSE . . .

  ."  1 ANNALS OF CONG. 434. 

THE PHRASING OF THAT PROPOSAL WAS CHANGED AT THE BEHEST OF THOSE WHO
FEARED THAT THE REFERENCE TO BUT "ONE TRIAL" MIGHT PREVENT A CONVICTED
MAN FROM OBTAINING A NEW TRIAL ON WRIT OF ERROR.  ID., AT 753.  BUT
THAT CHANGE WAS NOT INTENDED TO ALTER THE BAN AGAINST DOUBLE
PUNISHMENT.  SIGLER, A HISTORY OF DOUBLE JEOPARDY 7 AM.J. LEGAL HIST.
283, 304-306 (1963). 

"BY FORBIDDING THAT NO PERSON SHALL 'BE SUBJECT FOR THE SAME OFFENSE
TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB,' (THE SAFEGUARD OF THE
FIFTH AMENDMENT AGAINST DOUBLE PUNISHMENT) GUARDED AGAINST THE
REPETITION OF HISTORY BY . . . PUNISHING (A MAN) FOR AN OFFENSE WHEN HE
HAD ALREADY SUFFERED THE PUNISHMENT FOR IT."  ROBERTS V. UNITED STATES,
320 U.S. 264, 276 (FRANKFURTER, J., DISSENTING).  /2/ THE INQUIRY,
THEN, IS INTO THE MEANING OF "DOUBLE" OR "MULTIPLE"  PUNISHMENT.  IN EX
PARTE LANGE, 18 WALL.  163, THE PETITIONER HAD BEEN SENTENCED TO ONE
YEAR IMPRISONMENT AND $200 IN FINES, UNDER A FEDERAL STATUTE PROVIDING
FOR A MAXIMUM PENALTY OF ONE-YEAR IMPRISONMENT OR $200 IN FINES.  ON
WRIT OF HABEAS CORPUS FIVE DAYS LATER, THE TRIAL COURT RE-EXAMINED ITS
OWN PRIOR SENTENCE AND RESET IT, INSTEAD, AT ONE-YEAR IMPRISONMENT
WITHOUT CREDIT FOR TIME ALREADY SERVED.  THIS COURT, ON CERTIORARI,
ORDERED PETITIONER DISCHARGED ALTOGETHER.  IT REASONED THAT THE TRIAL
COURT HAD POWER TO IMPOSE A SENTENCE OF EITHER IMPRISONMENT OR FINE. 
BECAUSE THE PETITIONER HAD PAID THE FINE, HE HAD ALREADY SUFFERED
COMPLETE PUNISHMENT FOR HIS CRIME AND COULD NOT BE SUBJECTED TO FURTHER
SANCTION: 

     "IF THERE IS ANYTHING SETTLED IN THE JURISPRUDENCE OF ENGLAND

  AND AMERICA, IT IS THAT NO MAN CAN BE TWICE LAWFULLY PUNISHED FOR

  THE SAME OFFENSE.  AND THOUGH THERE HAVE BEEN NICE QUESTIONS IN

  THE APPLICATION OF THIS RULE TO CASES IN WHICH THE ACT CHARGED

  WAS SUCH AS TO COME WITHIN THE DEFINITION OF MORE THAN ONE

  STATUTORY OFFENSE, OR TO BRING THE PARTY WITHIN THE JURISDICTION

  OF MORE THAN ONE COURT, THERE HAS NEVER BEEN ANY DOUBT OF ITS

  ENTIRE AND COMPLETE PROTECTION OF THE PARTY WHEN A SECOND

  PUNISHMENT IS PROPOSED IN THE SAME COURT, ON THE SAME FACTS, FOR

  THE SAME STATUTORY OFFENSE."  ID., AT 168. 

EX PARTE LANGE LEFT IT SOMEWHAT IN DOUBT, WHETHER THE BAN ON DOUBLE
PUNISHMENT APPLIED ONLY TO SITUATIONS IN WHICH THE SECOND SENTENCE WAS
ADDED TO ONE THAT HAD BEEN COMPLETELY SERVED; OR WHETHER IT ALSO
APPLIED TO THE CASE WHERE THE SECOND SENTENCE WAS ADDED TO ONE STILL
BEING SERVED.  IT WAS NOT UNTIL UNITED STATES V. BENZ, 282 U.S. 304,
THAT THE COURT CLARIFIED ITS POSITION.  IN THAT CASE, HAVING INITIALLY
SET THE DEFENDANT'S SENTENCE AT 10 MONTHS, THE TRIAL COURT LATER
REDUCED THE SENTENCE TO SIX MONTHS.  THE GOVERNMENT APPEALED, AND THE
QUESTION WAS CERTIFIED TO THIS COURT, WHETHER A REDUCTION IN SENTENCE
VIOLATED THE DOUBLE JEOPARDY CLAUSE: 

     "THE GENERAL RULE IS THAT JUDGMENTS, DECREES AND ORDERS ARE

WITHIN THE CONTROL OF THE COURT DURING THE TERM AT WHICH THEY

  WERE MADE . . . . THE RULE IS NOT CONFINED TO CIVIL CASES, BUT

  APPLIES IN CRIMINAL CASES AS WELL, PROVIDED THE PUNISHMENT BE NOT

  AUGMENTED.  EX PARTE LANGE, 18 WALL.  163, 167-174 (ADDITIONAL

  CITATIONS OMITTED).  IN THE PRESENT CASE THE POWER OF THE COURT

  WAS EXERCISED TO MITIGATE THE PUNISHMENT, NOT TO INCREASE IT, AND

  IS THUS BROUGHT WITHIN THE LIMITATION . . . . 

     "THE DISTINCTION THAT THE COURT DURING THE SAME TERM MAY AMEND

  A SENTENCE SO AS TO MITIGATE THE PUNISHMENT, BUT NOT SO AS TO

  INCREASE IT, IS NOT BASED UPON THE GROUND THAT THE COURT HAS LOST

 CONTROL OF THE JUDGMENT IN THE LATTER CASE, BUT UPON THE GROUND

  THAT TO INCREASE THE PENALTY IS TO SUBJECT THE DEFENDANT TO

  DOUBLE PUNISHMENT FOR THE SAME OFFENSE IN VIOLATION OF THE FIFTH

  AMENDMENT TO THE CONSTITUTION . . . . THIS IS THE BASIS OF THE

  DECISION IN EX PARTE LANGE, SUPRA."  282 U.S.,AT 306-307. 

THE GOVERNING PRINCIPLE HAS THUS DEVELOPED THAT A CONVICTED MAN MAY BE
RETRIED AFTER A SUCCESSFUL APPEAL, BRYAN V. UNITED STATES, 338 U.S.
552; THAT HE MAY RUN THE RISK, ON RETRIAL, OF RECEIVING A SENTENCE AS
SEVERE AS THAT PREVIOUSLY IMPOSED, UNITED STATES V. BALL, 163 U.S. 662;
AND THAT HE MAY RUN THE RISK OF BEING TRIED FOR A SEPARATE OFFENSE,
WILLIAMS V. OKLAHOMA, 358 U.S. 576.  BUT WITH ALL DEFERENCE I SUBMIT
THAT THE STATE DOES NOT, BECAUSE OF PRIOR ERROR, HAVE A SECOND CHANCE
TO OBTAIN AN ENLARGED SENTENCE.  /3/  WHERE A MAN SUCCESSFULLY ATTACKS
A SENTENCE THAT HE HAS ALREADY "FULLY SERVED" (STREET V. NEW YORK 394
U.S. 576), THE STATE CANNOT CREATE AN ADDITIONAL SENTENCE AND SEND HIM
BACK TO PRISON.  EX PARTE LANGE, SUPRA.  SIMILARLY, WHERE A DEFENDANT
SUCCESSFULLY ATTACKS A SENTENCE THAT HE HAS BEGUN TO SERVE, THE STATE
CANNOT IMPOSE AN ADDED SENTENCE BY SENDING HIM TO PRISON FOR A GREATER
TERM.  /4/ 

THE BAN ON DOUBLE JEOPARDY HAS ITS ROOTS DEEP IN THE HISTORY OF
OCCIDENTAL JURISPRUDENCE.  "FEAR AND ABHORRENCE OF GOVERNMENTAL POWER
TO TRY PEOPLE TWICE FOR THE SAME CONDUCT IS ONE OF THE OLDEST IDEAS
FOUND IN WESTERN CIVILIZATION."  BARTKUS V. ILLINOIS, 359 U.S. 121, 151
155 (BLACK, J., DISSENTING).  AND ITS PURPOSES ARE SEVERAL.  IT
PREVENTS THE STATE FROM USING ITS CRIMINAL PROCESSES AS AN INSTRUMENT
OF HARASSMENT TO WEAR THE ACCUSED OUT BY A MULTITUDE OF CASES WITH
ACCUMULATED TRIALS.  ABBATE V. UNITED STATES, 359 U.S. 187, 198-199
(OPINION BY BRENNAN, J.). 

IT SERVES THE ADDITIONAL PURPOSE OF PRECLUDING THE STATE, FOLLOWING
ACQUITTAL, FROM SUCCESSIVELY RETRYING THE DEFENDANT IN THE HOPE OF
SECURING A CONVICTION.  "THE VICE OF THIS PROCEDURE LIES IN
RELITIGATING THE SAME ISSUE ON THE SAME EVIDENCE BEFORE TWO DIFFERENT
JURIES WITH A MAN'S INNOCENCE OR GUILT AT STAKE" "IN THE HOPE THAT THEY
WOULD COME TO A DIFFERENT CONCLUSION."  HOAG V. NEW JERSEY, 356 U.S.
464, 474, 475 (WARREN, C. J., DISSENTING).  "HARASSMENT OF AN ACCUSED
BY SUCCESSIVE PROSECUTIONS OR DECLARATION OF A MISTRIAL SO AS TO AFFORD
THE PROSECUTION A MORE FAVORABLE OPPORTUNITY TO CONVICT ARE EXAMPLES
WHEN JEOPARDY ATTACHES."  DOWNUM V. UNITED STATES, 372 U.S. 734, 736. 

AND FINALLY, IT PREVENTS THE STATE, FOLLOWING CONVICTION, FROM
RETRYING THE DEFENDANT AGAIN IN THE HOPE OF SECURING A GREATER
PENALTY. 

     "THIS CASE PRESENTS AN INSTANCE OF THE PROSECUTION BEING

  ALLOWED TO HARASS THE ACCUSED WITH REPEATED TRIALS AND

  CONVICTIONS ON THE SAME EVIDENCE, UNTIL IT ACHIEVES ITS DESIRED

  RESULT OF A CAPITAL VERDICT."  CIUCCI V. ILLINOIS, 356 U.S. 571,

  573 (DOUGLAS, J., DISSENTING). 

IT IS THE LATTER PURPOSE WHICH IS RELEVANT HERE, FOR IN THESE CASES
THE COURT ALLOWS THE STATE A SECOND CHANCE TO RETRY THE DEFENDANT IN
THE HOPE OF SECURING A MORE FAVORABLE PENALTY. 

"WHY IS IT THAT, HAVING ONCE BEEN TRIED AND FOUND GUILTY, HE CAN
NEVER BE TRIED AGAIN FOR THAT OFFENCE?  MANIFESTLY IT IS NOT THE DANGER
OR JEOPARDY OF BEING A SECOND TIME FOUND GUILTY.  IT IS THE PUNISHMENT
THAT WOULD LEGALLY FOLLOW THE SECOND CONVICTION WHICH IS THE REAL
DANGER GUARDED AGAINST BY THE CONSTITUTION.  BUT IF, AFTER JUDGMENT HAS
BEEN RENDERED ON THE CONVICTION, AND THE SENTENCE OF THAT JUDGMENT
EXECUTED ON THE CRIMINAL, HE CAN BE AGAIN SENTENCED ON THAT CONVICTION
TO ANOTHER AND DIFFERENT PUNISHMENT, OR TO ENDURE THE SAME PUNISHMENT A
SECOND TIME, IS THE CONSTITUTIONAL RESTRICTION OF ANY VALUE?  . . . 

     "THE ARGUMENT SEEMS TO US IRRESISTIBLE, AND WE DO NOT DOUBT

  THAT THE CONSTITUTION WAS DESIGNED AS MUCH TO PREVENT THE

  CRIMINAL FROM BEING TWICE PUNISHED FOR THE SAME OFFENSE AS FROM

  BEING TWICE TRIED FOR IT."  EX PARTE LANGE, SUPRA, AT 173. 

THE FOURTEENTH AMENDMENT WOULD NOW PROHIBIT NORTH CAROLINA AND
ALABAMA, AFTER TRIAL, FROM RETRYING OR RESENTENCING THESE DEFENDANTS IN
THE BALD HOPE OF SECURING A MORE FAVORABLE /5/  VERDICT.  BENTON V.
MARYLAND, POST, P. 784.  BUT HERE, BECAUSE THESE DEFENDANTS WERE
SUCCESSFUL IN APPEALING THEIR CONVICTIONS, THE COURT ALLOWS THOSE
STATES TO DO JUST THAT.  IT IS SAID THAT EVENTS SUBSEQUENT TO THE FIRST
TRIAL /6/  MAY JUSTIFY A NEW AND GREATER SENTENCE.  OF COURSE THAT IS
TRUE.  BUT IT IS TRUE, TOO, IN EVERY CRIMINAL CASE.  DOES THAT MEAN
THAT THE STATE SHOULD BE ALLOWED TO REOPEN EVERY VERDICT AND READJUST
EVERY SENTENCE BY COMING FORWARD WITH NEW EVIDENCE CONCERNING GUILT AND
PUNISHMENT?  IF NOT, THEN WHY SHOULD IT BE ALLOWED TO DO SO MERELY
BECAUSE THE DEFENDANT HAS TAKEN THE INITIATIVE IN SEEKING AN ERROR-FREE
TRIAL?  IT IS DOUBTLESS TRUE THAT THE STATE HAS AN INTEREST IN
ADJUSTING SENTENCES UPWARD WHEN IT DISCOVERS NEW EVIDENCE WARRANTING
THAT RESULT.  BUT THE INDIVIDUAL HAS AN INTEREST IN REMAINING FREE OF
DOUBLE PUNISHMENT.  AND IN WEIGHING THOSE INTERESTS AGAINST ONE
ANOTHER, THE CONSTITUTION HAS DECIDED THE MATTER IN FAVOR OF THE
INDIVIDUAL.  SEE UNITED STATES V. TATEO, 377 U.S. 463, 475 (GOLDBERG,
J., DISSENTING). 

/1/  "WITH THE BENEFIT OF GREEN V. UNITED STATES . . . THERE IS
SUPPORT EMERGING IN FAVOR OF A BROAD DOUBLE JEOPARDY RULE WHICH WOULD
PROTECT ALL FEDERAL AND STATE CONVICTS HELD IN PRISON UNDER ERRONEOUS
CONVICTIONS OR SENTENCES FROM HARSHER RESENTENCING FOLLOWING RETRIAL .
. . . (THE TECHNICAL ARGUMENT APPLYING THAT RULE WOULD BE AS FOLLOWS:
WHEN A PARTICULAR PENALTY IS SELECTED FROM A RANGE OF PENALTIES
PRESCRIBED FOR A GIVEN OFFENSE, AND WHEN THAT PENALTY IS IMPOSED UPON
THE DEFENDANT, THE JUDGE OR JURY IS IMPLIEDLY 'ACQUITTING'  THE
DEFENDANT OF A GREATER PENALTY, JUST AS THE JURY IN GREEN IMPLIEDLY
ACQUITTED . . . THE ACCUSED OF A GREATER DEGREE OF THE SAME OFFENSE." 
VAN ALSTYNE, IN GIDEON'S WAKE:  HARSHER PENALTIES AND THE "SUCCESSFUL"
CRIMINAL APPELLANT, 74 YALE L.J. 606, 634-635 (1965).     /2/  "OUR
MINDS REBEL AGAINST PERMITTING THE SAME SOVEREIGNTY TO PUNISH AN
ACCUSED TWICE FOR THE SAME OFFENSE."  FRANCIS V. RESWEBER, 329 U.S.
459, 462 (OPINION BY REED, J.).  SEE ALSO WILLIAMS V. OKLAHOMA, 358
U.S. 576, 584-586. 

/3/  "I READ THE DOUBLE JEOPARDY CLAUSE AS APPLYING A STRICT
STANDARD . . . . IT IS DESIGNED TO HELP EQUALIZE THE POSITION OF
GOVERNMENT AND THE INDIVIDUAL, TO DISCOURAGE ABUSIVE USE OF THE AWESOME
POWER OF SOCIETY.  ONCE A TRIAL STARTS JEOPARDY ATTACHES.  THE
PROSECUTION MUST STAND OR FALL ON ITS PERFORMANCE AT THE TRIAL . . . .
THE POLICY OF THE BILL OF RIGHTS IS TO MAKE RARE INDEED THE OCCASIONS
WHEN THE CITIZEN CAN FOR THE SAME OFFENSE BE REQUIRED TO RUN THE
GANTLET TWICE.  THE RISK OF JUDICIAL ARBITRARINESS RESTS WHERE, IN MY
VIEW, THE CONSTITUTION PUTS IT-- ON THE GOVERNMENT."  GORI V. UNITED
STATES, 367 U.S. 364, 372-373 (DOUGLAS, J., DISSENTING).  THIS COURT
HAS NEVER HELD ANYTHING TO THE CONTRARY.  WHILE STROUD V. UNITED
STATES, 251 U.S. 15, INVOLVED A DEFENDANT WHO RECEIVED THE DEATH
PENALTY UPON RETRIAL AFTER SUCCESSFULLY APPEALING A SENTENCE OF LIFE
IMPRISONMENT, 

"IT APPEARS THAT THE CASE WAS ARGUED . . . ON THE THEORY THAT THE
DEFENDANT WAS PUT TWICE IN JEOPARDY FOR THE SAME OFFENSE MERELY BY
BEING RETRIED ON AN INDICTMENT FOR FIRST DEGREE MURDER.  THERE IS NO
INDICATION THAT THE COURT WAS PRESENTED WITH THE ARGUMENT THAT THE RISK
OF AN INCREASED PENALTY ON RETRIAL VIOLATES THE DOUBLE JEOPARDY CLAUSE
BY BEING A DOUBLE PUNISHMENT FOR THE SAME OFFENSE.  STROUD THUS STANDS
FOR NO MORE THAN THE WELL-ESTABLISHED PROPOSITION THAT THE DOUBLE
JEOPARDY CLAUSE DOES NOT ENTITLE A DEFENDANT WHO SUCCESSFULLY ATTACKS
HIS CONVICTION TO ABSOLUTE IMMUNITY FROM REPROSECUTION."  PATTON V.
NORTH CAROLINA, 381 F.2D 636, 644-645 (C.A. 4TH CIR. 1967). 

TO THE EXTENT THAT STROUD STANDS FOR ANYTHING TO THE CONTRARY, IT
HAS BEEN VITIATED BY GREEN V. UNITED STATES, SUPRA.  PEOPLE V.
HENDERSON, 60 CAL.2D 482, 386 P.2D 677 (1963).  OTHER CASES INVOLVING
THE MATTER OF INCREASED SENTENCING UPON RETRIAL HAVE EITHER BEEN ONES
IN WHICH THE MATTER WAS NOT BEFORE THE COURT BECAUSE THE PARTIES DID
NOT RAISE IT, ROBINSON V. UNITED STATES, 144 F.2D 392 (C.A. 6TH CIR.
1944), AFF'D, 324 U.S. 282, OR BECAUSE IT WAS NOT NECESSARY TO A
DECISION, FAY V. NOIA, 372 U.S. 391, 440; OR STATE CASES IN WHICH THIS
COURT APPLIED A LOOSE STANDARD OF DUE PROCESS IN LIEU OF THE
UNCOMPROMISING DICTATES OF THE DOUBLE JEOPARDY CLAUSE, PALKO V.
CONNECTICUT, 302 U.S. 319; FRANCIS V. RESWEBER, 329 U.S. 459. 

/4/  AMONG THE FEDERAL COURTS, SOME AGREE THAT INCREASED SENTENCING
UPON RETRIAL CONSTITUTES DOUBLE JEOPARDY, PATTON V. NORTH CAROLINA, 381
F.2D 636 (C.A. 4TH CIR. 1967); UNITED STATES V. ADAMS, 362 F.2D 210
(C.A. 6TH CIR. 1966).  OTHER COURTS OF APPEALS HAVE FOUND IT
UNNECESSARY TO RESOLVE THE MATTER BUT HAVE INDICATED THAT, PROPERLY
PRESENTED, THEY TOO WOULD PROHIBIT INCREASED SENTENCING AS A VIOLATION
OF THE BAN AGAINST DOUBLE JEOPARDY.  COMPARE WALSH V. UNITED STATES,
374 F.2D 421 (C.A. 9TH CIR. 1967), WITH JACK V. UNITED STATES, 387 F.2D
471 (C.A. 9TH CIR. 1967); CASTLE V. UNITED STATES, 399 F.2D 642 (C.A.
5TH CIR. 1968).  STILL OTHER CIRCUITS HAVE FOUND THE DOUBLE JEOPARDY
CLAUSE UNAVAILING AND WOULD PERMIT INCREASED SENTENCING WHENEVER
JUSTIFIED BY NEWLY REVEALED EVIDENCE, MARANO V. UNITED STATES, 374 F.2D
583 (C.A. 1ST CIR. 1967), AND UNITED STATES V. COKE, 404 F.2D 836 (C.A.
2D CIR. 1968); WHENEVER SUPPORTED BY STANDARDS OF RATIONAL SENTENCING,
ABSENT AN INTENT TO PENALIZE THE DEFENDANT FOR SEEKING A NEW TRIAL,
UNITED STATES V. WHITE, 382 F.2D 445 (C.A. 7TH CIR. 1967); OR WHENEVER
CONSIDERED APPROPRIATE BY THE SENTENCING JUDGE, SHORT V. UNITED STATES,
120 U.S.APP.D.C. 165, 344 F.2D 550 (1965); STARNER V. RUSSELL, 378 F.2D
808 (C.A. 3D CIR. 1967); AND NEWMAN V. RODRIGUEZ, 375 F.2D 712 (C.A.
10TH CIR. 1967). 

AMONG THE STATES, THE GOVERNING STANDARDS ARE SIMILARLY MIXED.  AN
INCREASE IN SENTENCE WHERE THE DEFENDANT CAN SHOW THAT IT REFLECTS AN
INTENT TO PUNISH HIM FOR SEEKING A NEW TRIAL IS ONE INSTANCE, STATE V.
WHITE, 262 N.C. 52, 136 S.E.2D 205 (1964).  OF THE STATES THAT PROHIBIT
INCREASED SENTENCING UPON RETRIAL, SOME REST ON STATE STANDARDS OF
DOUBLE JEOPARDY, PEOPLE V. HENDERSON, 60 CAL.2D 482, 386 P.2D 677
(1963); SOME GROUND THAT RESULT IN THE "CHILLING EFFECT" THAT A
CONTRARY RULE WOULD HAVE ON THE RIGHT "TO CORRECT AN ERRONEOUSLY
CONDUCTED INITIAL TRIAL."  STATE V. WOLF, 46 N.J. 301, 216 A.2D 586
(1966), AND STATE V. TURNER, 247 ORE.  301, 313, 429 P.2D 565, 570
(1967).  STILL OTHERS HAVE REACHED THAT RESULT EITHER "AS A MATTER OF
JUDICIAL POLICY," STATE V. HOLMES, 281 MINN. 294, 296, 161 N.W.2D 650,
652 (1968), OR BECAUSE OF A STATE STATUTE, RUSH V. STATE, 239 ARK. 878,
395 S.W.2D 3 (1965). 

SOME STATES, EVIDENTLY FOR REASONS OTHER THAN DOUBLE JEOPARDY,
PROHIBIT INCREASED SENTENCING EXCEPT WHERE AFFIRMATIVELY JUSTIFIED BY
NEWLY DEVELOPED EVIDENCE, PEOPLE V. MULIER, 12 MICH.APP.  28, 162
N.W.2D 292; PEOPLE V. THIEL, 29 APP.DIV.2D 913, 289 N.Y.S.2D 879; AND
STATE V. LEONARD, 39 WIS.2D 461, I59 N.W.2D 577 (1968). 

ALTHOUGH UNWILLING TO PLACE A CEILING OVER THE SENTENCING AT
RETRIAL, SOME STATES DO ALLOW CREDIT FOR TIME ALREADY SERVED, TILGHMAN
V. CULVER, 99 SO.2D 282 (FLA. 1957) (BASED ON DOUBLE JEOPARDY); MOORE
V. PAROLE BOARD, 379 MICH. 624, 154 N.W.2D 437 (1967) (BASED ON A LOCAL
STATUTE); STATE V. BOLES, 151 W.VA. 1033, 159 S.E.2D 36 (1967) (BASED
ON DUE PROCESS AND EQUAL PROTECTION); GRAY V. HOCKER, 268 F.SUPP.  1004
(D.C. NEV. 1967) (BASED ON EQUAL PROTECTION); HILL V. HOLMAN, 255
F.SUPP.  924 (D.C.M.D. ALA. 1966) (BASED ON DUE PROCESS).  IN THE
FEDERAL REGIME, THE MATTER OF CREDIT IS GOVERNED BY STATUTE, 18 U.S.C.
3568. 

MOST STATES DO PERMIT INCREASED SENTENCING ON RETRIAL WITHOUT LIMIT,
EX PARTE BARNES, 44 ALA.APP.  329, 208 SO.2D 238 (1968); KOHLFUSS V.
WARDEN OF CONNECTICUT STATE PRISON, 149 CONN. 692, 183 A.2D 626 (1962);
BOHANNON V. DISTRICT OF COLUMBIA, 99 A.2D 647 (D.C. MUN.  CT. APP.
1953); SALISBURY V. GRIMES, 223 GA. 776, 158 S.E.2D 412 (1967); STATE
V. KNEESKERN, 203 IOWA 929, 210 N.W. 465 (1926); STATE V. MORGAN, 145
LA. 585, 82 SO. 711 (1919); STATE V. YOUNG, 200 KAN. 20, 434 P.2D 820
(1967); HOBBS V. STATE, 231 MD. 533, 191 A.2D 238 (1963); MOON V.
STATE, 250 MD. 468, 243 A.2D 564 (1968); HICKS V. COMMONWEALTH, 345
MASS. 89, 185 N.E.2D 739 (1962); SANDERS V. STATE, 239 MISS.  874, 125
SO.2D 923 (1961); COMMONWEALTH EX REL. WALLACE V. BURKE, 169 PA.SUPER. 
633, 84 A.2D 254 (1951); STATE V. SQUIRES, 248 S.C. 239, 149 S.E.2D 601
(1966). 

SOME STATES GO SO FAR AS TO DENY CREDIT AGAINST THE NEW SENTENCE FOR
TIME ALREADY SERVED IN PRISON UNDER THE FORMER ONE.  PEOPLE V. STARKS,
395 ILL. 567, 71 N.E.2D 23 (1947); MCDOWELL V. STATE, 225 IND. 495, 76
N.E.2D 249 (1947); STATE V. KING, 180 NEB. 631, 144 N.W.2D 438 (1966);
MORGAN V. COX, 75 N.M. 472, 406 P.2D 347 (1965); STATE V. MEADOWS, 216
TENN. 678, 393 S.W.2D 744 (1965). 

/5/  "IN SWAIM V. UNITED STATES, 165 U.S. 553, THIS COURT HELD THAT
THE PRESIDENT OR COMMANDING OFFICER HAD POWER TO RETURN A CASE TO A
COURT-MARTIAL FOR AN INCREASE IN SENTENCE.  IF THE DOUBLE JEOPARDY
PROVISIONS OF THE FIFTH AMENDMENT WERE APPLICABLE SUCH A PRACTICE WOULD
BE UNCONSTITUTIONAL."  REID V. COVERT, 354 U.S. 1, 37-38, N. 68
(OPINION OF BLACK, J.). 

/6/  TO RELY ON INFORMATION THAT HAS DEVELOPED AFTER THE INITIAL
TRIAL GIVES THE GOVERNMENT "CONTINUING CRIMINAL JURISDICTION" TO
SUPPLEMENT ITS CASE AGAINST THE DEFENDANT, FAR BEYOND THE CUT-OFF DATE
SET BY ITS ORIGINAL PROSECUTION.  CONSIDER THE DEFENDANT WHOSE SENTENCE
ON RETRIAL IS ENLARGED BECAUSE OF ANTISOCIAL ACTS COMMITTED IN PRISON. 
TO INCREASE HIS SENTENCE ON THAT ORIGINAL OFFENSE BECAUSE OF WHOLLY
SUBSEQUENT CONDUCT IS INDIRECTLY TO HOLD HIM CRIMINALLY RESPONSIBLE FOR
THAT CONDUCT. 

MR. JUSTICE BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

RESPONDENT PEARCE WAS CONVICTED IN A NORTH CAROLINA COURT OF ASSAULT
WITH INTENT TO RAPE AND SENTENCED TO SERVE 12 TO 15 YEARS IN PRISON;
RESPONDENT RICE PLEADED GUILTY TO FOUR CHARGES OF BURGLARY AND WAS
SENTENCED IN AN ALABAMA COURT TO SERVE A TOTAL OF 10 YEARS.  AFTER
HAVING SERVED SEVERAL YEARS, PEARCE WAS GRANTED A NEW TRIAL BECAUSE A
CONFESSION USED AGAINST HIM WAS HELD TO HAVE BEEN OBTAINED IN VIOLATION
OF HIS CONSTITUTIONAL RIGHT NOT TO BE COMPELLED TO BE A WITNESS AGAINST
HIMSELF; RICE'S CONVICTION WAS SET ASIDE BECAUSE, ALTHOUGH HE WAS
INDIGENT, HE HAD NOT BEEN PROVIDED WITH A COURT-APPOINTED LAWYER AT THE
TIME HE MADE HIS GUILTY PLEA.  BOTH RESPONDENTS WERE RETRIED AND AGAIN
CONVICTED.  /1/  RICE'S SENTENCE WAS INCREASED TO 25 YEARS, AND NO
CREDIT WAS GIVEN FOR TIME HE HAD PREVIOUSLY SERVED; PEARCE WAS IN
EFFECT GIVEN A SENTENCE OF 15 YEARS, BUT SINCE CREDIT WAS ALLOWED FOR
THE TIME HE HAD ALREADY SERVED, HIS NEW SENTENCE WAS SET AT EIGHT
YEARS. 

I AGREE WITH THE COURT THAT THE DOUBLE JEOPARDY CLAUSE PROHIBITS THE
DENIAL OF CREDIT FOR TIME ALREADY SERVED.  I ALSO AGREE WITH THE
COURT'S REJECTION OF RESPONDENTS' CLAIMS THAT THE INCREASED SENTENCES
VIOLATE THE DOUBLE JEOPARDY AND EQUAL PROTECTION CLAUSES OF THE
CONSTITUTION.  IT HAS BEEN SETTLED, AS THE COURT CORRECTLY NOTES, THAT
THE DOUBLE JEOPARDY PROVISION DOES NOT LIMIT THE LENGTH OF THE SENTENCE
IMPOSED UPON RECONVICTION.  NOR IS THERE ANY INVIDIOUS DISCRIMINATION
IN SUBJECTING DEFENDANTS WHO HAVE HAD PRIOR CONVICTIONS SET ASIDE TO
THE SAME PUNISHMENT FACED BY PEOPLE WHO HAVE NEVER BEEN TRIED AT ALL. 
THOSE WHO HAVE HAD FORMER CONVICTIONS SET ASIDE MUST, LIKE ALL OTHERS
WHO HAVE BEEN CONVICTED, BE SENTENCED ACCORDING TO LAW, AND A TRIAL
JUDGE WILL NORMALLY CONDUCT A FULL INQUIRY INTO THE BACKGROUND,
DISPOSITION, AND PROSPECTS FOR REHABILITATION OF EACH DEFENDANT IN
ORDER TO SET THE APPROPRIATE SENTENCE.  ACCORDINDLY, THESE DEFENDANTS
ARE NOT DENIED EQUAL PROTECTION WHEN THE STATE MAKES NO PROVISION FOR
RE-EVALUATION OF SENTENCES GENERALLY BUT PERMITS THE PENALTY SET AFTER
RETRIALS TO BE WHATEVER PENALTY THE TRIAL JUDGE FINDS TO BE
APPROPRIATE, WHETHER IT BE HIGHER OR LOWER THAN THE SENTENCE ORIGINALLY
SET. 

THE COURT GOES ON, HOWEVER, TO HOLD THAT IT WOULD BE A FLAGRANT
VIOLATION OF DUE PROCESS FOR A "STATE TRIAL COURT TO FOLLOW AN
ANNOUNCED PRACTICE OF IMPOSING A HEAVIER SENTENCE UPON EVERY
RECONVICTED DEFENDANT FOR THE EXPLICIT PURPOSE OF PUNISHING THE
DEFENDANT FOR HIS HAVING SUCCEEDED IN GETTING HIS ORIGINAL CONVICTION
SET ASIDE."  ANTE, AT 723-724.  THIS MEANS, I TAKE IT, THAT A STATE
CANNOT PERMIT APPEALS IN CRIMINAL CASES AND AT THE SAME TIME MAKE IT A
CRIME FOR A CONVICTED DEFENDANT TO TAKE OR WIN AN APPEAL.  THAT WOULD
PLAINLY DENY DUE PROCESS OF LAW, BUT NOT, AS THE COURT'S OPINION
IMPLIES, BECAUSE THE COURT BELIEVES IT TO BE AN "UNFAIR" PRACTICE.  IN
THE FIRST PLACE, THE VERY ENACTMENT OF TWO STATUTES SIDE BY SIDE, ONE
ENCOURAGING AND GRANTING APPEALS AND ANOTHER MAKING IT A CRIME TO WIN
AN APPEAL, WOULD BE CONTRARY TO THE VERY IDEA OF GOVERNMENT BY LAW.  IT
WOULD CREATE DOUBT, AMBIGUITY, AND UNCERTAINTY, MAKING IT IMPOSSIBLE
FOR CITIZENS TO KNOW WHICH ONE OF THE TWO CONFLICTING LAWS TO FOLLOW,
AND WOULD THUS VIOLATE ONE OF THE FIRST PRINCIPLES OF DUE PROCESS.  DUE
PROCESS, MOREOVER, IS A GUARANTEE THAT A MAN SHOULD BE TRIED AND
CONVICTED ONLY IN ACCORDANCE WITH VALID LAWS OF THE LAND.  IF A
CONVICTION IS NOT VALID UNDER THESE LAWS, STATUTORY AND CONSTITUTIONAL,
A MAN HAS BEEN DENIED DUE PROCESS AND HAS A CONSTITUTIONAL RIGHT TO
HAVE THE CONVICTION SET ASIDE, WITHOUT BEING DEPRIVED OF LIFE, LIBERTY,
OR PROPERTY AS A RESULT.  FOR THESE TWO REASONS, I AGREE THAT A STATE
LAW IMPOSING PUNISHMENT ON A DEFENDANT FOR TAKINE A PERMISSIBLE APPEAL
IN A CRIMINAL CASE WOULD VIOLATE THE DUE PROCESS CLAUSE, BUT NOT
BECAUSE OF ANY SUPPOSED "UNFAIRNESS."  SINCE SUCH A LAW COULD TAKE
EFFECT NOT ONLY BY STATE LEGISLATIVE ENACTMENT BUT ALSO BY STATE
JUDICIAL DECISION, I ALSO AGREE THAT IT WOULD VIOLATE THE CONSTITUTION
FOR ANY JUDGE TO IMPOSE A HIGHER PENALTY ON A DEFENDANT SOLELY BECAUSE
HE HAD TAKEN A LEGALLY PERMISSIBLE APPEAL. 

ON THIS BASIS THERE IS A PLAUSIBLE ARGUMENT FOR UPHOLDING THE
JUDGMENT IN NO. 418 SETTING ASIDE THE SECOND SENTENCE OF RESPONDENT
RICE, SINCE THE DISTRICT JUDGE THERE FOUND IT "SHOCKING" TO HIM THAT
THE STATE OFFERED NO EVIDENCE TO SHOW WHY IT HAD SO GREATLY INCREASED
RICE'S PUNISHMENT-- NAMELY, FROM A 10-YEAR SENTENCE ON FOUR BURGLARY
CHARGES AT THE FIRST TRIAL TO A 25-YEAR SENTENCE ON THREE BURGLARY
CHARGES AT THE SECOND TRIAL.  FROM THESE CIRCUMSTANCES, THE FEDERAL
DISTRICT JUDGE APPEARED TO FIND AS A FACT THAT THE SENTENCING JUDGE HAD
INCREASED RICE'S SENTENCE FOR THE SPECIFIC PURPOSE OF PUNISHING RICE
FOR INVOKING THE LAWFULLY GRANTED POST-CONVICTION REMEDIES.  SINCE AT
THIS DISTANCE WE SHOULD ORDINARILY GIVE THIS FINDING THE BENEFIT OF
EVERY DOUBT, I WOULD ACCEPT THE FEDERAL DISTRICT JUDGE'S CONCLUSION
THAT THE STATE IN THIS CASE ATTEMPTED TO PUNISH RICE FOR LAWFULLY
CHALLENGING HIS CONVICTION AND WOULD THEREFORE, WITH SOME RELUCTANCE,
AFFIRM THE DECISION OF THE COURT OF APPEALS IN THAT CASE.  BUT THIS
PROVIDES NO BASIS FOR AFFIRMING THE JUDGMENT OF THE COURT OF APPEALS IN
NO. 413, THE CASE INVOLVING RESPONDENT PEARCE.  FOR IN THAT CASE THERE
IS NOT A LINE OF EVIDENCE TO SUPPORT THE SLIGHTEST INFERENCE THAT THE
TRIAL JUDGE WANTED OR INTENDED TO PUNISH PEARCE FOR SEEKING POST
CONVICTION RELIEF.  INDEED THE RECORD SHOWS THAT THIS TRIAL JUDGE
METICULOUSLY COMPUTED THE TIME PEARCE HAD SERVED IN JAIL IN ORDER TO
GIVE HIM FULL CREDIT FOR THAT TIME.  /2/     THE COURT JUSTIFIES
AFFIRMING THE RELEASE OF PEARCE IN THIS LANGUAGE: 

     "IN ORDER TO ASSURE THE ABSENCE OF SUCH A MOTIVATION, WE HAVE

  CONCLUDED THAT WHENEVER A JUDGE IMPOSES A MORE SEVERE SENTENCE

  UPON A DEFENDANT AFTER A NEW TRIAL, THE REASONS FOR HIS DOING SO

  MUST AFFIRMATIVELY APPEAR.  THOSE REASONS MUST BE BASED UPON

  OBJECTIVE INFORMATION CONCERNING IDENTIFIABLE CONDUCT ON THE PART

  OF THE DEFENDANT OCCURRING AFTER THE TIME OF THE ORIGINAL

  SENTENCING PROCEEDING.  AND THE FACTUAL DATA UPON WHICH THE

INCREASED SENTENCE IS BASED MUST BE MADE PART OF THE RECORD, SO

  THAT THE CONSTITUTIONAL LEGITIMACY OF THE INCREASED SENTENCE MAY

  BE FULLY REVIEWED ON APPEAL."  ANTE, AT 726. 

OF COURSE NOTHING IN THE DUE PROCESS CLAUSE GRANTS THIS COURT ANY SUCH
POWER AS IT IS USING HERE.  PUNISHMENT BASED ON THE IMPERMISSIBLE
MOTIVATION DESCRIBED BY THE COURT IS, AS I HAVE SAID, CLEARLY
UNCONSTITUTIONAL, AND COURTS MUST OF COURSE SET ASIDE THE PUNISHMENT IF
THEY FIND, BY THE NORMAL JUDICIAL PROCESS OF FACT-FINDING, THAT SUCH A
MOTIVATION EXISTS.  BUT, BEYOND THIS, THE COURTS ARE NOT VESTED WITH
ANY GENERAL POWER TO PRESCRIBE PARTICULAR DEVICES "(IN ORDER TO ASSURE
THE ABSENCE OF SUCH A MOTIVATION."  NUMEROUS DIFFERENT MECHANISMS COULD
BE THOUGHT OF, ANY ONE OF WHICH WOULD SERVE THIS FUNCTION.  YET THE
COURT DOES NOT EXPLAIN WHY THE PARTICULAR DETAILED PROCEDURE SPELLED
OUT IN THIS CASE IS CONSTITUTIONALLY REQUIRED, WHILE OTHER REMEDIAL
DEVICES ARE NOT.  THIS IS PURE LEGISLATION IF THERE EVER WAS
LEGISLATION. 

I HAVE NO DOUBT ABOUT THE POWER OF CONGRESS TO ENACT SUCH
LEGISLATION UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT, WHICH READS: 

"THE CONGRESS SHALL HAVE POWER TO ENFORCE,BY APPROPRIATE
LEGISLATION, THE PROVISIONS OF THIS ARTICLE."  BUT SHOULD CONGRESS
ENACT WHAT THE COURT HAS HERE ENACTED, A REQUIREMENT THAT STATE COURTS
ARTICULATE THEIR REASONS FOR IMPOSING PARTICULAR SENTENCES, IT WOULD
STILL BE LEGISLATION ONLY, AND CONGRESS COULD REPEAL IT.  IN FACT,
SINCE THIS IS ONLY A RULE SUPPLEMENTING THE FOURTEENTH AMENDMENT, THE
COURT ITSELF MIGHT BE WILLING TO ACCEPT CONGRESSIONAL SUBSTITUTES FOR
THIS SUPPOSEDLY "CONSTITUTIONAL" RULE WHICH THIS COURT TODAY ENACTS. 
SO DESPITE THE FACT THAT THE COURT SAYS THAT THE JUDGE'S REASONS "MUST
BE MADE PART OF THE RECORD, SO THAT THE CONSTITUTIONAL LEGITIMACY OF
THE INCREASED SENTENCE MAY BE FULLY REVIEWED ON APPEAL," I REMAIN
UNCONVINCED THAT THIS COURT CAN LEGITIMATELY ADD ANY ADDITIONAL
COMMANDS TO THE FOURTEENTH OR ANY OTHER AMENDMENT. 

APART FROM THIS, THE POSSIBILITY THAT JUDICIAL ACTION WILL BE
PROMPTED BY IMPERMISSIBLE MOTIVES IS A PARTICULARLY POOR REASON FOR
HOLDING THAT DETAILED RULES OF PROCEDURE ARE CONSTITUTIONALLY BINDING
IN EVERY STATE AND FEDERAL PROSECUTIONS.  THE DANGER OF IMPROPER
MOTIVATION IS OF COURSE EVER PRESENT.  A JUDGE MIGHT IMPOSE A SPECIALLY
SEVERE PENALTY SOLELY BECAUSE OF A DEFENDANT'S RACE, RELIGION, OR
POLITICAL VIEWS.  HE MIGHT IMPOSE A SPECIALLY SEVERE PENALTY BECAUSE A
DEFENDANT EXERCISED HIS RIGHT TO COUNSEL, OR INSISTED ON A TRIAL BY
JURY, OR EVEN BECAUSE THE DEFENDANT REFUSED TO ADMIT HIS GUILT AND
INSISTED ON ANY PARTICULAR KIND OF TRIAL.  IN ALL THESE INSTANCES ANY
ADDITIONAL PUNISHMENT WOULD OF COURSE BE, FOR THE REASONS I HAVE
STATED, FLAGRANTLY UNCONSTITUTIONAL.  BUT IT HAS NEVER PREVIOUSLY BEEN
SUGGESTED BY THIS COURT THAT "(IN ORDER TO ASSURE THE ABSENCE OF SUCH A
MOTIVATION," THIS COURT COULD, AS A MATTER OF CONSTITUTIONAL LAW,
DIRECT ALL TRIAL JUDGES TO SPELL OUT IN DETAIL THEIR REASONS FOR
SETTING A PARTICULAR SENTENCE, MAKING THEIR REASONS "AFFIRMATIVELY
APPEAR," AND BASING THESE REASONS ON "OBJECTIVE INFORMATION CONCERNING
IDENTIFIABLE CONDUCT."  NOR HAS THIS COURT EVER PREVIOUSLY SUGGESTED IN
CONNECTION WITH SENTENCING THAT "THE FACTUAL DATA . . . MUST BE MADE
PART OF THE RECORD."  ON THE CONTRARY, WE SPELLED OUT IN SOME DETAIL IN
WILLIAMS V. NEW YORK, 337 U.S. 241 (1949), OUR REASONS FOR REFUSING TO
SUBJECT THE SENTENCING PROCESS TO ANY SUCH LIMITATIONS, WHICH MIGHT
HAMSTRING MODERN PENOLOGICAL REFORMS, AND THE COURT HAS, UNTIL TODAY,
CONTINUED TO REAFFIRM THAT DECISION.  SEE, E.G., SPECHT V. PATTERSON,
386 U.S. 605 (1967).  THERE ARE MANY PERFECTLY LEGITIMATE REASONS THAT
A JUDGE MIGHT HAVE FOR IMPSOING A HIGHER SENTENCE.  FOR INSTANCE, TAKE
THE CASE OF RESPONDENT RICE.  WITHOUT A LAWYER, HE PLEADED GUILTY TO
FOUR CHARGES OF BURGLARY AND RECEIVED A SENTENCE OF ONLY 10 YEARS. 
ALTHOUGH NOT SHOWN BY THE RECORD, WHAT HAPPENED IS NOT DIFFICULT TO
SEE.  IT IS COMMON KNOWLEDGE THAT PROSECUTORS FREQUENTLY TRADE WITH
DEFENDANTS AND AGREE TO RECOMMEND LOW SENTENCES IN RETURN FOR PLEAS OF
GUILTY.  JUDGES FREQUENTLY ACCEPT SUCH AGREEMENT WITHOUT CAREFULLY
SCRUTINIZING THE RECORD OF THE DEFENDANT.  ONE NEEDS LITTLE IMAGINATION
TO INFER THAT RICE'S ORIGINAL SENTENCE WAS THE RESULT OF PRECISELY SUCH
A PRACTICE.  THIS EXPLAINS BOTH THE FIRST 10-YEAR SENTENCE AND THE FACT
THAT, AFTER A FULL TRIAL AND EXAMINATION OF THE ENTIRE RECORD, THE
TRIAL JUDGE CONCLUDED THAT A 25-YEAR SENTENCE WAS CALLED FOR.  THE
COURT'S OPINION TODAY WILL-- UNFORTUNATELY, I THINK, FOR DEFENDANTS--
THROW STUMBLING BLOCKS IN THE WAY OF THEIR MAKING SIMILAR BENEFICIAL
AGREEMENTS IN THE FUTURE.  MOREOVER, THE COURT'S OPINION MAY HEREAFTER
CAUSE JUDGES TO IMPOSE HEAVIER SENTENCES ON DEFENDANTS IN ORDER TO
PRESERVE THEIR LAWFULLY AUTHORIZED DISCRETION SHOULD DEFENDANTS WIN
REVERSALS OF THEIR ORIGINAL CONVICTIONS. 

I WOULD FIRMLY ADHERE TO THE WILLIAMS PRINCIPLE OF LEAVING JUDGES
FREE TO EXERCISE THEIR DISCRETION IN SENTENCING.  I WOULD ACCEPT THE
FINDING OF FACT MADE BY THE FEDERAL DISTRICT JUDGE IN NO. 418, THAT THE
HIGHER SENTENCE IMPOSED ON RESPONDENT RICE WAS MOTIVATED BY
CONSTITUTIONALLY IMPERMISSIBLE CONSIDERATIONS.  BUT I WOULD NOT GO
FURTHER AND PROMULGATE DETAILED RULES OF PROCEDURE AS A MATTER OF
CONSTITUTIONAL LAW, AND SINCE THERE IS NO FINDING OF ACTUALLY IMPROPER
MOTIVATION IN NO. 413, I WOULD REVERSE THE JUDGMENT OF THE COURT OF
APPEALS IN THAT CASE AND REINSTATE THE SECOND SENTENCE IMPOSED UPON
RESPONDENT PEARCE. 

ONE LAST THOUGHT.  THERE ARE SOME WHO SAY THAT THERE IS NOTHING BUT
A SEMANTIC DIFFERENCE BETWEEN MY VIEW-- THAT THE DUE PROCESS CLAUSE
GUARANTEES ONLY THAT PERSONS MUST BE TRIED PURSUANT TO THE CONSTITUTION
AND LAWS PASSED UNDER IT-- AND THE OPPOSING VIEW-- THAT THE
CONSTITUTION GRANTS JUDGES POWER TO DECIDE CONSTITUTIONALITY ON THE
BASIS OF THEIR OWN CONCEPTS OF FAIRNESS, JUSTICE, OR "THE ANGLO
AMERICAN LEGAL HERITAGE."  SNIADACH V. FAMILY FINANCE CORP., ANTE, AT
343 (HARLAN, J., CONCURRING).  BUT IN THIS CASE AND ELSEWHERE, AS I SEE
IT, THE DIFFERENCE BETWEEN THESE VIEWS COMES TO NOTHING LESS THAN THE
DIFFERENCE BETWEEN WHAT THE CONSTITUTION SAYS AND MEANS AND WHAT THE
JUDGES FROM DAY TO DAY, GENERATION TO GENERATION, AND CENTURY TO
CENTURY, DECIDE IS FAIREST AND BEST FOR THE PEOPLE.  DECIDING THAT AN
AMBIGUOUS OR SELF-CONTRADICTORY LAW VIOLATES DUE PROCESS IS A FAR CRY
FROM HOLDING THAT A LAW VIOLATES DUE PROCESS BECAUSE IT IS "UNFAIR" OR
"SHOCKING" TO A JUDGE OR VIOLATES "THE ANGLO-AMERICAN LEGAL HERITAGE." 
A DUE PROCESS CRIMINAL TRIAL MEANS A TRIAL IN A COURT, WITH AN
INDEPENDENT JUDGE LAWFULLY SELECTED, A JURY, A DEFENDANT'S LAWYER IF
THE DEFENDANT WANTS ONE, A COURT WITH POWER TO ISSUE COMPULSORY PROCESS
FOR WITNESSES, AND WITH ALL THE OTHER GUARANTEES PROVIDED BY THE
CONSTITUTION AND VALID LAWS PASSED PURSUANT TO IT.  SEE, E.G., CHAMBERS
V. FLORIDA, 309 U.S. 227, 235-237, 240-241 (1940); TOTH V. QUARLES, 350
U.S. 11 (1955).  THAT IS THE DIFFERENCE FOR ME BETWEEN OUR CONSTITUTION
AS WRITTEN BY THE FOUNDERS AND AN UNWRITTEN CONSTITUTION TO BE
FORMULATED BY JUDGES ACCORDING TO THEIR IDEAS OF FAIRNESS ON A CASE-BY
CASE BASIS.  I THEREFORE MUST DISSENT FROM AFFIRMANCE OF THE JUDGMENT
IN THE CASE IF RESPONDENT PEARCE. 

/1/  AT RICE'S SECOND TRIAL ONE OF THE FOUR CHARGES ORIGINALLY
PRESSED AGAINST HIM WAS DROPPED, AND HE WAS TRIED ONLY ON THE REMAINING
THREE. 

/2/  AT THE TIME OF SENTENCING AFTER PEARCE'S SECOND TRIAL, THE
JUDGE STATED: 

"IT IS THE INTENTION OF THIS COURT TO GIVE THE DEFENDANT A SENTENCE
OF FIFTEEN YEARS IN THE STATE PRISON; HOWEVER, IT APPEARS TO THE COURT
FROM THE RECORDS AVAILABLE FROM THE PRISON DEPARTMENT THAT THE
DEFENDANT HAS SERVED 6 YEARS, 6 MONTHS AND 17 DAYS FLAT AND GAIN TIME
COMBINED, AND THE COURT IN PASSING SENTENCE IN THIS CASE IS TAKING INTO
CONSIDERATION THE TIME ALREADY SERVED BY THE DEFENDANT.  IT IS THE
JUDGMENT OF THIS COURT THAT THE DEFENDANT BE CONFINED TO THE STATE'S
PRISON FOR A PERIOD OF EIGHT YEARS." 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

WERE THESE CASES TO BE JUDGED ENTIRELY WITHIN THE TRADITIONAL
CONFINES OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, I
SHOULD, BUT NOT WITHOUT SOME DIFFICULTY, FIND MYSELF IN SUBSTANTIAL
AGREEMENT WITH THE RESULT REACHED BY THE COURT.  HOWEVER, THE COURT
TODAY, IN BENTON V. MARYLAND, POST, P. 784, HAS HELD, OVER MY DISSENT,
THAT THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT IS MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT DUE PROCESS
CLAUSE.  WHILE MY USUAL PRACTICE IS TO ADHERE UNTIL THE END OF TERM TO
VIEWS I HAVE EXPRESSED IN DISSENT DURING THE TERM, I BELIEVE I SHOULD
NOT PROCEED IN THESE IMPORTANT CASES AS IF BENTON HAD TURNED OUT
OTHERWISE. 

GIVEN BENTON, IT IS MY VIEW THAT THE DECISION OF THIS COURT IN GREEN
V. UNITED STATES, 355 U.S. 184 (1957), FROM WHICH I DISSENTED AT THE
TIME, POINTS STRONGLY TO THE CONCLUSION, ALSO REACHED BY MY BROTHER
DOUGLAS, ANTE, P. 726, THAT THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT GOVERNS BOTH ISSUES PRESENTLY DECIDED BY THE COURT. 
ACCORDINGLY, I JOIN IN PART I OF THE COURT'S OPINION, AND CONCUR IN THE
RESULT REACHED IN PART II, EXCEPT IN ONE MINOR RESPECT.  /1/ 

GREEN V. UNITED STATES, SUPRA, HELD IN EFFECT THAT A DEFENDANT WHO
IS CONVICTED OF A LESSER OFFENSE INCLUDED IN THAT CHARGED IN THE
ORIGINAL INDICTMENT; AND WHO THEREAFTER SECURES REVERSAL, MAY BE
RETRIED ONLY FOR THE LESSER INCLUDED OFFENSE.  MR. JUSTICE FRANKFURTER
OBSERVED, IN A DISSENT WHICH I JOINED, THAT 

"AS A PRACTICAL MATTER, AND ON ANY BASIS OF HUMAN VALUES, IT IS
SCARCELY POSSIBLE TO DISTINGUISH A CASE IN WHICH THE DEFENDANT IS
CONVICTED OF A GREATER OFFENSE FROM ONE IN WHICH HE IS CONVICTED OF AN
OFFENSE THAT HAS THE SAME NAME AS THAT OF WHICH HE WAS PREVIOUSLY
CONVICTED BUT CARRIES A SIGNIFICANTLY (INCREASED) . . . PUNISHMENT . .
. ."  ID., AT 213.  FURTHER REFLECTION A DECADE LATER HAS NOT CHANGED
MY VIEW THAT THE TWO SITUATIONS CANNOT BE MEANINGFULLY DISTINGUISHED. 

EVERY CONSIDERATION ENUNCIATED BY THE COURT IN SUPPORT OF THE
DECISION IN GREEN APPLIES WITH EQUAL FORCE TO THE SITUATION AT BAR.  IN
EACH INSTANCE, THE DEFENDANT WAS ONCE SUBJECTED TO THE RISK OF
RECEIVING A MAXIMUM PUNISHMENT, BUT IT WAS DETERMINED BY LEGAL PROCESS
THAT HE SHOULD RECEIVE ONLY A SPECIFIED PUNISHMENT LESS THAN THE
MAXIMUM.  SEE ID., AT 190.  AND THE CONCEPT OR FICTION OF AN "IMPLICIT
ACQUITTAL" OF THE GREATER OFFENSE, IBID., APPLIES EQUALLY TO THE
GREATER SENTENCE:  IN EACH CASE IT WAS DETERMINED AT THE FORMER TRIAL
THAT THE DEFENDANT OR HIS OFFENSE WAS OF A CERTAIN LIMITED DEGREE OF
"BADNESS" OR GRAVITY ONLY, AND THEREFORE MERITED ONLY A CERTAIN LIMITED
PUNISHMENT.  MOST SIGNIFICANTLY, PERHAPS, IN EACH CASE A CONTRARY RULE
WOULD PLACE THE DEFENDANT CONSIDERING WHETHER TO APPEAL HIS CONVICTION
IN THE SAME "INCREDIBLE DILEMMA" AND CONFRONT HIM WITH THE SAME
"DESPERATE" CHOICE.  ID., AT 193.  HIS DECISION WHETHER OR NOT TO
APPEAL WOULD BE BURDENED BY THE CONSIDERATION THAT SUCCESS, /2/
FOLLOWED BY RETRIAL AND CONVICTION, MIGHT PLACE HIM IN A FAR WORSE
POSITION THAN IF HE REMAINED SILENT AND SUFFERED WHAT SEEMED TO HIM AN
UNJUST PUNISHMENT.  /3/  IN TERMS OF GREEN, THAT THE IMPOSITION OF A
MORE SEVERE SENTENCE ON RETRIAL IS A MATTER OF PURE CHANCE, RATHER THAN
THE RESULT OF PURPOSEFUL RETALIATION FOR HAVING TAKEN AN APPEAL,
RENDERS THE CHOICE NO LESS "DESPERATE." 

IF, AS A MATTER OF POLICY AND PRACTICALITY, THE IMPOSITION OF AN
INCREASED SENTENCE ON RETRIAL HAS THE SAME CONSEQUENCES WHETHER
EFFECTED IN THE GUISE OF AN INCREASE IN THE DEGREE OF OFFENSE OR AN
AUGMENTATION OF PUNISHMENT, WHAT OTHER FACTORS RENDER ONE ROUTE
FORBIDDEN AND THE OTHER PERMISSIBLE UNDER THE DOUBLE JEOPARDY CLAUSE? 
IT CANNOT BE THAT THE PROVISION DOES NOT COMPREHEND "SENTENCES"-- AS
DISTINGUISHED FROM "OFFENSES"-- FOR IT HAS LONG BEEN ESTABLISHED THAT
ONCE A PRISONER COMMENCES SERVICE OF SENTENCE, THE CLAUSE PREVENTS A
COURT FROM VACATING THE SENTENCE AND THEN IMPOSING A GREATER ONE.  SEE
UNITED STATES V. BENZ, 282 U.S. 304, 306-307 (1931); EX PARTE LANGE, 18
WALL.  163, 168, 173 (1874). 

THE COURT DOES NOT SUGGEST OTHERWISE, /4/  BUT IN ITS VIEW,
APPARENTLY, WHEN THE CONVICTION ITSELF AND NOT MERELY THE CONSEQUENT
SENTENCE HAS BEEN SET ASIDE, OR WHEN EITHER HAS BEEN SET ASIDE AT THE
DEFENDANT'S BEHEST, /5/  THE "SLATE HAS BEEN WIPED CLEAN," ANTE, AT
721, AND THE DOUBLE JEOPARDY CLAUSE PRESENTS NO BAR TO THE IMPOSITION
OF A SENTENCE GREATER THAN THAT ORIGINALLY IMPOSED.  IN SUPPORT OF THIS
PROPOSITION, THE COURT RELIES CHIEFLY ON TWO CASES, STROUD V. UNITED
STATES, 251 U.S. 15 (1919), AND UNITED STATES V. BALL, 163 U.S. 662
(1896).  I DO NOT BELIEVE THAT EITHER OF THESE CASES PROVIDES AN
ADEQUATE BASIS FOR THE COURT'S SEEMINGLY INCONGRUOUS CONCLUSION. 
STROUD V. UNITED STATES, SUPRA, HELD THAT A DEFENDANT WHO RECEIVED A
LIFE SENTENCE FOR FIRST-DEGREE MURDER COULD, UPON SECURING A REVERSAL
OF THE CONVICTION, BE RETRIED FOR FIRST-DEGREE MURDER AND SENTENCED TO
DEATH.  HOWEVER, THE OPINION DOES NOT EXPLICITLY ADVERT TO THE QUESTION
WHETHER THE DOUBLE JEOPARDY CLAUSE BARS THE IMPOSITION OF AN INCREASED
PUNISHMENT, AND AN EXAMINATION OF THE BRIEFS IN THAT CASE CONFIRMS THE
DOUBT EXPRESSED BY THE COURT OF APPEALS IN PATTON V. NORTH CAROLINA,
381 F.2D 636, 644 (1967), WHETHER THIS QUESTION WAS SQUARELY PRESENTED
TO THE COURT.  /6/  ASSUMING THAT STROUD STOOD FOR THE PROPOSITION
WHICH THE MAJORITY ATTRIBUTES TO IT, THAT DECISION SIMPLY CANNOT BE
SQUARED WITH THE SUBSEQUENT DECISION IN GREEN V. UNITED STATES, 355
U.S. 184 (1957).  SEE ID., AT 213 (DISSENTING OPINION); PEOPLE V.
HENDERSON, 60 CAL.2D 482, 386 P.2D 677 (1963). 

THE COURT DOES NOT REST SOLELY ON THIS AMBIGUOUS AND DOUBTFUL
PRECEDENT, HOWEVER.  ITS MAIN POINT SEEMS TO BE THAT TO LIMIT THE
PUNISHMENT ON RETRIAL TO THAT IMPOSED AT THE FORMER TRIAL "WOULD BE TO
CAST DOUBT UPON THE WHOLE VALIDITY OF THE BASIC PRINCIPLE ENUNCIATED IN
UNITED STATES V. BALL," 163 U.S. 662 (1896), AND ITS PROGENY.  ANTE, AT
721. 

BALL HELD, SIMPLY, THAT A DEFENDANT WHO SUCCEEDS IN GETTING HIS
FIRST CONVICTION SET ASIDE MAY THEREAFTER BE RETRIED FOR THE SAME
OFFENSE OF WHICH HE WAS FORMERLY CONVICTED.  THIS IS, INDEED, A
FUNDAMENTAL DOCTRINE IN OUR CRIMINAL JURISPRUDENCE, AND I WOULD BE THE
LAST TO UNDERMINE IT.  BUT BALL DOES NOT SPEAK TO THE QUESTION OF WHAT
PUNISHMENT MAY BE IMPOSED ON RETRIAL.  I ENTIRELY FAIL TO UNDERSTAND
THE COURT'S SUGGESTION, UNLESS IT ASSUMES THAT BALL MUST STAND OR FALL
ON THE QUESTION-BEGGING NOTION THAT, TO QUOTE THE MAJORITY TODAY, "THE
ORIGINAL CONVICTION HAS, AT THE DEFENDANT'S BEHEST, BEEN WHOLLY
NULLIFIED AND THE SLATE WIPED CLEAN."  /7/  ANTE, AT 721. 

IN RELYING ON THIS CONCEPTUAL FICTION, THE MAJORITY FORGETS THAT
GREEN V. UNITED STATES, SUPRA, PROHIBITS THE IMPOSITION OF AN INCREASED
PUNISHMENT ON RETRIAL PRECISELY BECAUSE CONVICTIONS ARE USUALLY SET
ASIDE ONLY AT THE DEFENDANT'S BEHEST, AND NOT IN SPITE OF THAT FACT. 
355 U.S.,AT 193-194; SUPRA, AT 746:  THE DEFENDANT'S CHOICE TO APPEAL
AN ERRONEOUS CONVICTION IS PROTECTED BY THE RULE THAT HE MAY NOT AGAIN
BE PLACED IN JEOPARDY OF SUFFERING THE GREATER PUNISHMENT NOT IMPOSED
AT THE FIRST TRIAL.  MOREOVER, IN ITS EXALTATION OF FORM OVER SUBSTANCE
AND POLICY, THE COURT MISCONCEIVES, I THINK, THE ESSENTIAL PRINCIPLE OF
BALL ITSELF: 

     "WHILE DIFFERENT THEORIES HAVE BEEN ADVANCED TO SUPPORT THE

  PERMISSIBILITY OF RETRIAL, OF GREATER IMPORTANCE THAN THE

  CONCEPTUAL ABSTRACTIONS EMPLOYED TO EXPLAIN THE BALL PRINCIPLE

  ARE THE IMPLICATIONS OF THAT PRINCIPLE FOR THE SOUND

  ADMINISTRATION OF JUSTICE.  CORRESPONDING TO THE RIGHT OF AN

ACCUSED TO BE GIVEN A FAIR TRIAL IS THE SOCIETAL INTEREST IN

  PUNISHING ONE WHOSE GUILT IS CLEAR AFTER HE HAS OBTAINED SUCH A

  TRIAL.  IT WOULD BE A HIGH PRICE INDEED FOR SOCIETY TO PAY WERE

  EVERY ACCUSED GRANTED IMMUNITY FROM PUNISHMENT BECAUSE OF ANY

  DEFECT SUFFICIENT TO CONSTITUTE REVERSIBLE ERROR IN THE

  PROCEEDINGS LEADING TO CONVICTION."  UNITED STATES V. TATEO, 377

  U.S. 463, 466 (1964). 

TO BE SURE, THIS SOCIETAL INTEREST IS COMPROMISED TO A DEGREE IF THE
SECOND JUDGE IS FORBIDDEN TO IMPOSE A GREATER PUNISHMENT ON RETRIAL
THAN WAS METED OUT AT THE FIRST TRIAL.  FOR EXAMPLE, NEW FACTS MAY
DEVELOP BETWEEN THE FIRST AND SECOND TRIAL WHICH WOULD, AS AN INITIAL
MATTER, BE CONSIDERED IN AGGRAVATION OF SENTENCE.  BY THE SAME TOKEN,
HOWEVER, THE PROSECUTOR WHO WAS ABLE TO PROVE ONLY SECOND-DEGREE MURDER
AT THE FORMER TRIAL MIGHT IMPROVE HIS CASE IN THE INTERIM AND ACQUIRE
SUFFICIENT EVIDENCE TO PROVE MURDER IN THE FIRST DEGREE.  IN EITHER
INSTANCE, IF ONE VIEWS THE SECOND TRIAL IN A VACUUM, THE DEFENDANT HAS
RECEIVED LESS PUNISHMENT THAN IS HIS DUE.  BUT IN BOTH CASES, THE
COMPROMISE IS DESIGNED TO PROTECT OTHER SOCIETAL INTERESTS, AND IT IS,
AFTER GREEN, A COMPROMISE COMPELLED BY THE DOUBLE JEOPARDY CLAUSE. 
/8/ 

I THEREFORE CONCLUDE THAT, CONSISTENT WITH THE FIFTH AMENDMENT, A
DEFENDANT WHO HAS ONCE BEEN CONVICTED AND SENTENCED TO A PARTICULAR
PUNISHMENT MAY NOT ON RETRIAL BE PLACED AGAIN IN JEOPARDY OF RECEIVING
A GREATER PUNISHMENT THAN WAS FIRST IMPOSED.  BECAUSE THE DOUBLE
JEOPARDY CLAUSE HAS NOW BEEN HELD APPLICABLE TO THE STATES, BENTON V.
MARYLAND, SUPRA, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS IN
NO. 418, AND VACATE AND REMAND IN NO. 413, SO THAT RESPONDENT PEARCE
MAY FINISH SERVING HIS FIRST, VALID SENTENCE.  SEE N. 1, SUPRA. 

/1/  AN OUTRIGHT AFFIRMANCE IN NO. 413 WOULD CARRY THE CONSEQUENCE
OF RELIEVING THE RESPONDENT PEARCE FROM SERVING THE REMAINING FEW
MONTHS OF HIS ORIGINAL STATE SENTENCE.  SEE THE COURT'S OPINION, ANTE,
AT 713-714 AND N. 1.  THERE IS NO BASIS, WHETHER THE RESULT IN THIS
CASE IS GOVERNED BY DUE PROCESS OR DOUBLE JEOPARDY, FOR SUCH AN
INTERFERENCE WITH THE STATE'S LEGITIMATE CRIMINAL PROCESSES.  I WOULD
THEREFORE VACATE THE JUDGMENT OF THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT IN NO. 413 AND REMAND THE CASE SO THAT AN ORDER MAY BE ENTERED
RELEASING PEARCE AT, BUT NOT BEFORE, THE EXPIRATION OF HIS FIRST
SENTENCE.  CF. PEYTON V. ROWE, 391 U.S. 54 (1968). 

/2/  A PROHIBITION AGAINST ENHANCED PUNISHMENT ON RETRIAL DOES NOT,
OF COURSE, TEND IN ANY MANNER TO ENCOURAGE FRIVOLOUS APPEALS.  A
CONTRARY RULE DOES NOT DISCOURAGE FRIVOLOUS APPEALS, EXCEPT INSOFAR AS
IT DISCOURAGES ALL APPEALS. 

/3/  THE WOULD-BE APPELLANT'S QUANDARY IS MOST CLEARLY SEEN WHEN THE
FIRST TRIAL AND CONVICTION FOR A CAPITAL OFFENSE RESULT IN A SENTENCE
OF LIFE IMPRISONMENT.  CF., E.G., GREEN V. UNITED STATES, SUPRA. 

/4/  INDEED, THE COURT RELIES ON THESE CASES IN PART I OF ITS
OPINION TO HOLD THAT A PRISONER MUST BE AFFORDED CREDIT FOR TIME SERVED
PURSUANT TO A SUBSEQUENTLY VACATED SENTENCE. 

/5/  NEITHER LANGE NOR BENZ INDICATES THAT THE PRINCIPLE PROHIBITING
THE IMPOSITION OF AN ENHANCED SENTENCE ON THE SAME JUDGMENT OF
CONVICTION DEPENDS ON WHETHER THE ORIGINAL SENTENCE IS VACATED ON THE
PRISONER'S APPLICATION, OR IS SET ASIDE SUA SPONTE BY THE COURT.  (IT
APPEARS, THOUGH NOT CLEARLY, THAT LANGE'S SENTENCE WAS SET ASIDE AT HIS
BEHEST.) 

IN MURPHY V. MASSACHUSETTS, 177 U.S. 155 (1900), HOWEVER, THE COURT
INDICATED THAT ONE WHO SUCCESSFULLY MOVES TO VACATE HIS SENTENCE
OCCUPIES "THE SAME POSTURE AS IF HE HAD SUED OUT HIS WRIT OF ERROR ON
THE DAY HE WAS FIRST SENTENCED, AND THE MERE FACT THAT BY REASON OF HIS
DELAY IN DOING SO HE HAD SERVED A PORTION OF THE ERRONEOUS SENTENCE
COULD NOT ENTITLE HIM TO ASSERT THAT HE WAS BEING TWICE PUNISHED." 
ID., AT 161-162.  THUS, THE COURT CONCLUDED IN MURPHY NOT ONLY THAT THE
SENTENCE COULD BE AUGMENTED, BUT ALSO THAT THE PETITIONER WAS NOT
CONSTITUTIONALLY ENTITLED TO ANY CREDIT FOR TIME SERVED UNDER THE FIRST
SENTENCE. 

THIS PROVES TOO MUCH, AS THE COURT TODAY HOLDS IN PART I OF ITS
OPINION.  IN MY VIEW, NEITHER CONCLUSION SURVIVES GREEN. 

/6/  STROUD PITCHED HIS DOUBLE JEOPARDY CLAIM ON THE THEORY THAT,
ALTHOUGH "THE CONSTITUTIONAL PROHIBITION DOES NOT PREVENT A SECOND
TRIAL AFTER REVERSAL IN NON-CAPITAL CASES," IT DOES-- WITHOUT REFERENCE
TO THE SENTENCE IMPOSED-- PRECLUDE "A SECOND TRIAL UPON REVERSAL OF A
CONVICTION IN A CAPITAL CASE."  BRIEF FOR PLAINTIFF IN ERROR IN NO.
276, O.T. 1919, P. 32.  STROUD'S ARGUMENT AS TO THE ENHANCED SENTENCE
APPEARS BASED SOLELY ON THE NONCONSTITUTIONAL GROUNDS.  SEE ID., AT 89
ET SEQ.

/7/  THIS FICTION WOULD SEEM TO LEAD TO A RESULT WHICH EVEN THE
MAJORITY MIGHT HAVE DIFFICULTY RECONCILING WITH THE DOUBLE JEOPARDY
CLAUSE'S PROHIBITION OF MULTIPLE PUNISHMENT.  CONSIDER THE SITUATION OF
A DEFENDANT WHO SUCCESSFULLY VACATES A CONVICTION AND IS THEN RETRIED
AND CONVICTED AFTER HE HAS FULLY SERVED THE SENTENCE FIRST IMPOSED. 
SEE STREET V. NEW YORK 394 U.S. 576 (1969); SIBRON V. NEW YORK, 392
U.S. 40 (1968); GINSBERG V. NEW YORK, 390 U.S. 629 (1968).  ALTHOUGH
THE SENTENCE WAS FULLY SERVED, THE DEFENDANT HIMSELF HAS CAUSED THE
JUDGMENT TO BE VACATED, AND THE MAJORITY'S "NULLIFICATION" PRINCIPLE
WOULD SEEM TO ALLOW THE JUDGE TO IMPOSE A NEW SENTENCE OF IMPRISONMENT
ON HIM-- SO LONG AS THE NEW SENTENCE WAS AN "INCREASED" SENTENCE RATHER
THAN THE RESULT OF THE COURT'S FAILURE TO "CREDIT" THE DEFENDANT WITH
THE SENTENCE HE HAD COMPLETED. 

/8/  THAT THE NEW FACTS MAY CONSIST OF MISDEEDS COMMITTED BY THE
DEFENDANT SINCE THE FIRST TRIAL, RATHER THAN PRIOR MISCONDUCT ONLY
SUBSEQUENTLY DISCOVERED, SHOULD NOT, IN MY VIEW, ALTER THE OUTCOME
UNDER GREEN AND THE OTHER DOUBLE JEOPARDY CASES.  IF SUBSEQUENT
MISDEEDS AMOUNT TO CRIMINAL VIOLATIONS, THE DEFENDANT MAY PROPERLY BE
TRIED AND PUNISHED FOR THEM.  IF THEY AMOUNT TO SOMETHING LESS, THE
VERY UNCERTAINTY AS TO WHAT KINDS OF NONCRIMINAL CONDUCT MAY BE
CONSIDERED IN AGGRAVATION OF THE SENTENCE ON RETRIAL WOULD,
ANALYTICALLY, SEEM TO THWART THE CONCERNS PROTECTED BY GREEN.  IN
EITHER EVENT, I DO NOT UNDERSTAND WHAT RATIONAL POLICY DISTINGUISHES A
DEFENDANT WHOSE APPEAL IS SUCCESSFUL FROM ONE WHO TAKES NO APPEAL AND
WHOSE SENTENCE MAY NOT, CONSISTENT WITH THE DOUBLE JEOPARDY CLAUSE, BE
AUGMENTED.  SEE SUPRA, AT 747. 

OF COURSE, NOTHING IN THE DOUBLE JEOPARDY CLAUSE FORBIDS A
PROSECUTOR FROM INTRODUCING NEW AND HARMFUL EVIDENCE AT THE SECOND
TRIAL IN ORDER TO IMPROVE HIS CHANCES OF OBTAINING A CONVICTION FOR THE
LESSER OFFENSE OF WHICH THE DEFENDANT WAS PREVIOUSLY CONVICTED OR TO
ASSURE THAT THE DEFENDANT RECEIVES THE FULL PUNISHMENT IMPOSED AT THE
FIRST TRIAL. 

MR. JUSTICE WHITE, CONCURRING IN PART. 

I JOIN THE COURT'S OPINION EXCEPT THAT IN MY VIEW PART II-C SHOULD
AUTHORIZE AN INCREASED SENTENCE ON RETRIAL BASED ON ANY OBJECTIVE,
IDENTIFIABLE FACTUAL DATA NOT KNOWN TO THE TRIAL JUDGE AT THE TIME OF
THE ORIGINAL SENTENCING PROCEEDING. 

ANDREW A. VANORE, JR., ARGUED THE CAUSE FOR PETITIONERS IN NO. 413. 
WITH HIM ON THE BRIEF WAS THOMAS WADE BRUTON, ATTORNEY GENERAL OF NORTH
CAROLINA, JOINED IN AND ADOPTED BY THE ATTORNEYS GENERAL FOR THEIR
RESPECTIVE STATES AS FOLLOWS:  MACDONALD GALLION OF ALABAMA, DAVID P.
BUCKSON OF DELAWARE, JOHN B. BRECKINRIDGE OF KENTUCKY, JACK P. F.
GREMILLION OF LOUISIANA, JAMES S. ERWIN OF MAINE, JOE T. PATTERSON OF
MISSISSIPPI, FORREST H. ANDERSON OF MONTANA, CLARENCE A. H. MEYER OF
NEBRASKA, ARTHUR J. SILLS OF NEW JERSEY, WILLIAM C. SENNETT OF
PENNSYLVANIA, HERBERT F. DESIMONE OF RHODE ISLAND, DANIEL R. MCLEOD OF
SOUTH CAROLINA, GEORGE F. MCCANLESS OF TENNESSEE, CRAWFORD C. MARTIN OF
TEXAS, BRONSON C. LAFOLLETTE OF WISCONSIN, AND JAMES E. BARRETT OF
WYOMING; AND PAUL J. ABBATE, ATTORNEY GENERAL, FOR THE TERRITORY OF
GUAM.  PAUL T. GISH, JR., ASSISTANT ATTORNEY GENERAL OF ALABAMA, ARGUED
THE CAUSE FOR PETITIONER IN NO. 418.  WITH HIM ON THE BRIEF WAS
MACDONALD GALLION, ATTORNEY GENERAL. 

LARRY B. SITTON, BY APPOINTMENT OF THE COURT, 393 U.S. 973, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT IN NO. 413.  THOMAS S.
LAWSON, JR., ARGUED THE CAUSE FOR RESPONDENT IN NO. 418.  WITH HIM ON
THE BRIEF WAS OAKLEY MELTON, JR., BY APPOINTMENT OF THE COURT, 393 U.S.
1010. 

ROBERT C. LONDERHOLM, ATTORNEY GENERAL, AND EDWARD G. COLLISTER,
JR., ASSISTANT ATTORNEY GENERAL, FILED A BRIEF FOR THE STATE OF KANSAS
AS AMICUS CURIAE IN NO. 413.  WILLIAM W. VAN ALSTYNE AND MELVIN L. WULF
FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL. AS AMICI
CURIAE IN BOTH CASES. 
..END :



CHIMEL V. CALIFORNIA, 395 U.S. 752 


       CHIMEL V. CALIFORNIA. 

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

        NO. 770.  ARGUED MARCH 27, 1969.-- DECIDED JUNE 23, 1969. 


POLICE OFFICERS, ARMED WITH AN ARREST WARRANT BUT NOT A SEARCH
WARRANT, WERE ADMITTED TO PETITIONER'S HOME BY HIS WIFE, WHERE THEY
AWAITED PETITIONER'S ARRIVAL.  WHEN HE ENTERED HE WAS SERVED WITH THE
WARRANT.  ALTHOUGH HE DENIED THE OFFICERS' REQUEST TO "LOOK AROUND,"
THEY CONDUCTED A SEARCH OF THE ENTIRE HOUSE "ON THE BASIS OF THE LAWFUL
ARREST."  AT PETITIONER'S TRIAL ON BURGLARY CHARGES, ITEMS TAKEN FROM
HIS HOME WERE ADMITTED OVER OBJECTION THAT THEY HAD BEEN
UNCONSTITUTIONALLY SEIZED.  HIS CONVICTION WAS AFFIRMED BY THE
CALIFORNIA APPELLATE COURTS, WHICH HELD, DESPITE THEIR ACCEPTANCE OF
PETITIONER'S CONTENTION THAT THE ARREST WARRANT WAS INVALID, THAT SINCE
THE ARRESTING OFFICERS HAD PROCURED THE WARRANT "IN GOOD FAITH," AND
SINCE IN ANY EVENT THEY HAD HAD SUFFICIENT INFORMATION TO CONSTITUTE
PROBABLE CAUSE FOR THE ARREST, THE ARREST WAS LAWFUL.  THE COURTS ALSO
HELD THAT THE SEARCH WAS JUSTIFIED AS INCIDENT TO A VALID ARREST. 
HELD:  ASSUMING THE ARREST WAS VALID, THE WARRANTLESS SEARCH OF
PETITIONER'S HOUSE CANNOT BE CONSTITUTIONALLY JUSTIFIED AS INCIDENT TO
THAT ARREST.  PP. 755-768. 

(A) AN ARRESTING OFFICER MAY SEARCH THE ARRESTEE'S PERSON TO
DISCOVER AND REMOVE WEAPONS AND TO SEIZE EVIDENCE TO PREVENT ITS
CONCEALMENT OR DESTRUCTION; AND MAY SEARCH THE AREA "WITHIN THE
IMMEDIATE CONTROL" OF THE PERSON ARRESTED, MEANING THE AREA FROM WHICH
HE MIGHT GAIN POSSESSION OF A WEAPON OR DESTRUCTIBLE EVIDENCE.  PP. 762
763. 

(B) FOR THE ROUTINE SEARCH OF ROOMS OTHER THAN THAT IN WHICH AN
ARREST OCCURS, OR FOR SEARCHING DESK DRAWERS OR OTHER CLOSED OR
CONCEALED AREAS IN THAT ROOM ITSELF, ABSENT WELL-RECOGNIZED EXCEPTIONS,
A SEARCH WARRANT IS REQUIRED.  P. 763. 

(C) WHILE THE REASONABLENESS OF A SEARCH INCIDENT TO ARREST DEPENDS
UPON "THE FACTS AND CIRCUMSTANCES-- THE TOTAL ATMOSPHERE OF THE CASE,"
THOSE FACTS AND CIRCUMSTANCES MUST BE VIEWED IN THE LIGHT OF
ESTABLISHED FOURTH AMENDMENT PRINCIPLES, AND THE ONLY REASONED
DISTINCTION IS ONE BETWEEN (1) A SEARCH OF THE PERSON ARRESTED AND THE
AREA WITHIN HIS REACH, AND (2) MORE EXTENSIVE SEARCHES.  PP. 765-766. 

(D) UNITED STATES V. RABINOWITZ, 339 U.S. 56, AND HARRIS V. UNITED
STATES, 331 U.S. 145, ON THEIR FACTS, AND INSOFAR AS THE PRINCIPLES
THEY STAND FOR ARE INCONSISTENT WITH THIS DECISION, ARE NO LONGER TO BE
FOLLOWED.  P. 768. 

(E) THE SCOPE OF THE SEARCH HERE WAS UNREASONABLE UNDER THE FOURTH
AND FOURTEENTH AMENDMENTS, AS IT WENT BEYOND PETITIONER'S PERSON AND
THE AREA FROM WITHIN WHICH HE MIGHT HAVE OBTAINED A WEAPON OR SOMETHING
THAT COULD HAVE BEEN USED AS EVIDENCE AGAINST HIM, AND THERE WAS NO
CONSTITUTIONAL JUSTIFICATION, IN THE ABSENCE OF A SEARCH WARRANT, FOR
EXTENDING THE SEARCH BEYOND THAT AREA.  P. 768. 

68 CAL.2D 436, 439 P.2D 333, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES BASIC QUESTIONS CONCERNING THE PERMISSIBLE SCOPE
UNDER THE FOURTH AMENDMENT OF A SEARCH INCIDENT TO A LAWFUL ARREST. 

THE RELEVANT FACTS ARE ESSENTIALLY UNDISPUTED.  LATE IN THE
AFTERNOON OF SEPTEMBER 13, 1965, THREE POLICE OFFICERS ARRIVED AT THE
SANTA ANA, CALIFORNIA, HOME OF THE PETITIONER WITH A WARRANT
AUTHORIZING HIS ARREST FOR THE BURGLARY OF A COIN SHOP.  THE OFFICERS
KNOCKED ON THE DOOR, IDENTIFIED THEMSELVES TO THE PETITIONER'S WIFE,
AND ASKED IF THEY MIGHT COME INSIDE.  SHE USHERED THEM INTO THE HOUSE,
WHERE THEY WAITED 10 OR 15 MINUTES UNTIL THE PETITIONER RETURNED HOME
FROM WORK.  WHEN THE PETITIONER ENTERED THE HOUSE, ONE OF THE OFFICERS
HANDED HIM THE ARREST WARRANT AND ASKED FOR PERMISSION TO "LOOK
AROUND."  THE PETITIONER OBJECTED, BUT WAS ADVISED THAT "ON THE BASIS
OF THE LAWFUL ARREST," THE OFFICERS WOULD NONETHELESS CONDUCT A
SEARCH.  NO SEARCH WARRANT HAD BEEN ISSUED. 

ACCOMPANIED BY THE PETITIONER'S WIFE, THE OFFICERS THEN LOOKED
THROUGH THE ENTIRE THREE-BEDROOM HOUSE, INCLUDING THE ATTIC, THE
GARAGE, AND A SMALL WORKSHOP.  IN SOME ROOMS THE SEARCH WAS RELATIVELY
CURSORY.  IN THE MASTER BEDROOM AND SEWING ROOM, HOWEVER, THE OFFICERS
DIRECTED THE PETITIONER'S WIFE TO OPEN DRAWERS AND "TO PHYSICALLY MOVE
CONTENTS OF THE DRAWERS FROM SIDE TO SIDE SO THAT (THEY) MIGHT VIEW ANY
ITEMS THAT WOULD HAVE COME FROM (THE) BURGLARY."  AFTER COMPLETING THE
SEARCH, THEY SEIZED NUMEROUS ITEMS-- PRIMARILY COINS, BUT ALSO SEVERAL
MEDALS, TOKENS, AND A FEW OTHER OBJECTS.  THE ENTIRE SEARCH TOOK
BETWEEN 45 MINUTES AND AN HOUR. 

AT THE PETITIONER'S SUBSEQUENT STATE TRIAL ON TWO CHARGES OF
BURGLARY, THE ITEMS TAKEN FROM HIS HOUSE WERE ADMITTED INTO EVIDENCE
AGAINST HIM, OVER HIS OBJECTION THAT THEY HAD BEEN UNCONSTITUTIONALLY
SEIZED.  HE WAS CONVICTED, AND THE JUDGMENTS OF CONVICTION WERE
AFFIRMED BY BOTH THE CALIFORNIA COURT OF APPEAL, 61 CAL.RPTR.  714, AND
THE CALIFORNIA SUPREME COURT, 68 CAL.2D 436, 439 P.2D 333.  BOTH COURTS
ACCEPTED THE PETITIONER'S CONTENTION THAT THE ARREST WARRANT WAS
INVALID BECAUSE THE SUPPORTING AFFIDAVIT WAS SET OUT IN CONCLUSORY
TERMS, /1/  BUT HELD THAT SINCE THE ARRESTING OFFICERS HAD PROCURED THE
WARRANT "IN GOOD FAITH," AND SINCE IN ANY EVENT THEY HAD HAD SUFFICIENT
INFORMATION TO CONSTITUTE PROBABLE CAUSE FOR THE PETITIONER'S ARREST,
THAT ARREST HAD BEEN LAWFUL.  FROM THIS CONCLUSION THE APPELLATE COURTS
WENT ON TO HOLD THAT THE SEARCH OF THE PETITIONER'S HOME HAD BEEN
JUSTIFIED, DESPITE THE ABSENCE OF A SEARCH WARRANT, ON THE GROUND THAT
IT HAD BEEN INCIDENT TO A VALID ARREST.  WE GRANTED CERTIORARI IN ORDER
TO CONSIDER THE PETITIONER'S SUBSTANTIAL CONSTITUTIONAL CLAIMS.  393
U.S. 958. 

WITHOUT DECIDING THE QUESTION, WE PROCEED ON THE HYPOTHESIS THAT THE
CALIFORNIA COURTS WERE CORRECT IN HOLDING THAT THE ARREST OF THE
PETITIONER WAS VALID UNDER THE CONSTITUTION.  THIS BRINGS US DIRECTLY
TO THE QUESTION WHETHER THE WARRANTLESS SEARCH OF THE PETITIONER'S
ENTIRE HOUSE CAN BE CONSTITUTIONALLY JUSTIFIED AS INCIDENT TO THAT
ARREST.  THE DECISIONS OF THIS COURT BEARING UPON THAT QUESTION HAVE
BEEN FAR FROM CONSISTENT, AS EVEN THE MOST CURSORY REVIEW MAKES
EVIDENT. 

APPROVAL OF A WARRANTLESS SEARCH INCIDENT TO A LAWFUL ARREST SEEMS
FIRST TO HAVE BEEN ARTICULATED BY THE COURT IN 1914 AS DICTUM IN WEEKS
V. UNITED STATES, 232 U.S. 383, IN WHICH THE COURT STATED: 

     "WHAT THEN IS THE PRESENT CASE?  BEFORE ANSWERING THAT INQUIRY

SPECIFICALLY, IT MAY BE WELL BY A PROCESS OF EXCLUSION TO STATE

  WHAT IT IS NOT.  IT IS NOT AN ASSERTION OF THE RIGHT ON THE PART

  OF THE GOVERNMENT, ALWAYS RECOGNIZED UNDER ENGLISH AND AMERICAN

  LAW, TO SEARCH THE PERSON OF THE ACCUSED WHEN LEGALLY ARRESTED TO

  DISCOVER AND SEIZE THE FRUITS OR EVIDENCE OF CRIME."  ID., AT

  392. 

THAT STATEMENT MADE NO REFERENCE TO ANY RIGHT TO SEARCH THE PLACE WHERE
AN ARREST OCCURS, BUT WAS LIMITED TO A RIGHT TO SEARCH THE "PERSON." 
ELEVEN YEARS LATER THE CASE OF CARROLL V. UNITED STATES, 267 U.S. 132,
BROUGHT THE FOLLOWING EMBELLISHMENT OF THE WEEKS STATEMENT: 

"WHEN A MAN IS LEGALLY ARRESTED FOR AN OFFENSE, WHATEVER IS FOUND
UPON HIS PERSON OR IN HIS CONTROL WHICH IT IS UNLAWFUL FOR HIM TO HAVE
AND WHICH MAY BE USED TO PROVE THE OFFENSE MAY BE SEIZED AND HELD AS
EVIDENCE IN THE PROSECUTION."  ID., AT 158.  STILL, THAT ASSERTION TOO
WAS FAR FROM A CLAIM THAT THE "PLACE" WHERE ONE IS ARRESTED MAY BE
SEARCHED SO LONG AS THE ARREST IS VALID.  WITHOUT EXPLANATION, HOWEVER,
THE PRINCIPLE EMERGED IN EXPANDED FORM A FEW MONTHS LATER IN AGNELLO V.
UNITED STATES, 269 U.S. 20-- ALTHOUGH STILL BY WAY OF DICTUM: 

     "THE RIGHT WITHOUT A SEARCH WARRANT CONTEMPORANEOUSLY TO
SEARCH

  PERSONS LAWFULLY ARRESTED WHILE COMMITTING CRIME AND TO SEARCH

  THE PLACE WHERE THE ARREST IS MADE IN ORDER TO FIND AND SEIZE

  THINGS CONNECTED WITH THE CRIME AS ITS FRUITS OR AS THE MEANS BY

  WHICH IT WAS COMMITTED, AS WELL AS WEAPONS AND OTHER THINGS TO

  EFFECT AN ESCAPE FROM CUSTODY, IS NOT TO BE DOUBTED.  SEE CARROLL

  V. UNITED STATES, 267 U.S. 132, 158; WEEKS V. UNITED STATES, 232

U.S. 383, 392."  269 U.S.,AT 30. 

AND IN MARRON V. UNITED STATES, 275 U.S. 192, TWO YEARS LATER, THE
DICTUM OF AGNELLO APPEARED TO BE THE FOUNDATION OF THE COURT'S
DECISION.  IN THAT CASE FEDERAL AGENTS HAD SECURED A SEARCH WARRANT
AUTHORIZING THE SEIZURE OF LIQUOR AND CERTAIN ARTICLES USED IN ITS
MANUFACTURE.  WHEN THEY ARRIVED AT THE PREMISES TO BE SEARCHED, THEY
SAW "THAT THE PLACE WAS USED FOR RETAILING AND DRINKING INTOXICATING
LIQUORS."  ID., AT 194.  THEY PROCEEDED TO ARREST THE PERSON IN CHARGE
AND TO EXECUTE THE WARRANT.  IN SEARCHING A CLOSET FOR THE ITEMS LISTED
IN THE WARRANT THEY CAME ACROSS AN INCRIMINATING LEDGER, CONCEDEDLY NOT
COVERED BY THE WARRANT, WHICH THEY ALSO SEIZED.  THE COURT UPHELD THE
SEIZURE OF THE LEDGER BY HOLDING THAT SINCE THE AGENTS HAD MADE A
LAWFUL ARREST, "(THEY HAD A RIGHT WITHOUT A WARRANT CONTEMPORANEOUSLY
TO SEARCH THE PLACE IN ORDER TO FIND AND SEIZE THE THINGS USED TO CARRY
ON THE CRIMINAL ENTERPRISE."  ID., AT 199. 

THAT THE MARRON OPINION DID NOT MEAN ALL THAT IT SEEMED TO SAY
BECAME EVIDENT, HOWEVER, A FEW YEARS LATER IN GO-BART IMPORTING CO. V.
UNITED STATES, 282 U.S. 344, AND UNITED STATES V. LEFKOWITZ, 285 U.S.
452.  IN EACH OF THOSE CASES THE OPINION OF THE COURT WAS WRITTEN BY
MR. JUSTICE BUTLER, THE AUTHOR OF THE OPINION IN MARRON.  IN GO-BART,
AGENTS HAD SEARCHED THE OFFICE OF PERSONS WHOM THEY HAD LAWFULLY
ARRESTED, /2/  AND HAD TAKEN SEVERAL PAPERS FROM A DESK, A SAFE, AND
OTHER PARTS OF THE OFFICE.  THE COURT NOTED THAT NO CRIME HAD BEEN
COMMITTED IN THE AGENTS' PRESENCE, AND THAT ALTHOUGH THE AGENT IN
CHARGE "HAD AN ABUNDANCE OF INFORMATION AND TIME TO SWEAR OUT A VALID
(SEARCH) WARRANT, HE FAILED TO DO SO."  282 U.S.,AT 358.  IN HOLDING
THE SEARCH AND SEIZURE UNLAWFUL, THE COURT STATED: 

     "PLAINLY THE CASE BEFORE US IS ESSENTIALLY DIFFERENT FROM

  MARRON V. UNITED STATES, 275 U.S. 192.  THERE, OFFICERS EXECUTING

  A VALID SEARCH WARRANT FOR INTOXICATING LIQUORS FOUND AND

  ARRESTED ONE BIRDSALL WHO IN PURSUANCE OF A CONSPIRACY WAS

  ACTUALLY ENGAGED IN RUNNING A SALOON.  AS AN INCIDENT TO THE

  ARREST THEY SEIZED A LEDGER IN A CLOSET WHERE THE LIQUOR OR SOME

  OF IT WAS KEPT AND SOME BILLS BESIDE THE CASH REGISTER.  THESE

THINGS WERE VISIBLE AND ACCESSIBLE AND IN THE OFFENDER'S

IMMEDIATE CUSTODY.  THERE WAS NO THREAT OF FORCE OR GENERAL

  SEARCH OR RUMMAGING OF THE PLACE."  282 U.S.,AT 358. 

THIS LIMITED CHARACTERIZATION OF MARRON WAS REITERATED IN LEFKOWITZ, A
CASE IN WHICH THE COURT HELD UNLAWFUL A SEARCH OF DESK DRAWERS AND A
CABINET DESPITE THE FACT THAT THE SEARCH HAD ACCOMPANIED A LAWFUL
ARREST.  285 U.S.,AT 465. 

THE LIMITING VIEWS EXPRESSED IN GO-BART AND LEFKOWITZ WERE THROWN TO
THE WINDS, HOWEVER, IN HARRIS V. UNITED STATES, 331 U.S. 145, DECIDED
IN 1947.  IN THAT CASE, OFFICERS HAD OBTAINED A WARRANT FOR HARRIS'
ARREST ON THE BASIS OF HIS ALLEGED INVOLVEMENT WITH THE CASHING AND
INTERSTATE TRANSPORTATION OF A FORGED CHECK.  HE WAS ARRESTED IN THE
LIVING ROOM OF HIS FOUR-ROOM APARTMENT, AND IN AN ATTEMPT TO RECOVER
TWO CANCELED CHECKS THOUGHT TO HAVE BEEN USED IN EFFECTING THE FORGERY,
THE OFFICERS UNDERTOOK A THOROUGH SEARCH OF THE ENTIRE APARTMENT. 
INSIDE A DESK DRAWER THEY FOUND A SEALED ENVELOPE MARKED "GEORGE
HARRIS, PERSONAL PAPERS."  THE ENVELOPE, WHICH WAS THEN TORN OPEN, WAS
FOUND TO CONTAIN ALTERED SELECTIVE SERVICE DOCUMENTS, AND THOSE
DOCUMENTS WERE USED TO SECURE HARRIS' CONVICTION FOR VIOLATING THE
SELECTIVE TRAINING AND SERVICE ACT OF 1940.  THE COURT REJECTED HARRIS'
FOURTH AMENDMENT CLAIM, SUSTAINING THE SEARCH AS "INCIDENT TO ARREST." 
ID., AT 151. 

ONLY A YEAR AFTER HARRIS, HOWEVER, THE PENDULUM SWUNG AGAIN.  IN
TRUPIANO V. UNITED STATES, 334 U.S. 699, AGENTS RAISED THE SITE OF AN
ILLICIT DISTILLERY, SAW ONE OF SEVERAL CONSPIRATORS OPERATING THE
STILL, AND ARRESTED HIM, CONTEMPORANEOUSLY "SEIZING) THE ILLICIT
DISTILLERY."  ID., AT 702.  THE COURT HELD THAT THE ARREST AND OTHERS
MADE SUBSEQUENTLY HAD BEEN VALID, BUT THAT THE UNEXPLAINED FAILURE OF
THE AGENTS TO PROCURE A SEARCH WARRANT-- IN SPITE OF THE FACT THAT THEY
HAD HAD MORE THAN ENOUGH TIME BEFORE THE RAID TO DO SO-- RENDERED THE
SEARCH UNLAWFUL.  THE OPINION STATED: 

"IT IS A CANRDINAL RULE THAT, IN SEIZING GOODS AND ARTICLES, LAW
ENFORCEMENT AGENTS MUST SECURE AND USE SEARCH WARRANTS WHEREVER
REASONABLY PRACTICABLE . . . . THIS RULE RESTS UPON THE DESIRABILITY OF
HAVING MAGISTRATES RATHER THAN POLICE OFFICERS DETERMINE WHEN SEARCHES
AND SEIZURES ARE PERMISSIBLE AND WHAT LIMITATIONS SHOULD BE PLACED UPON
SUCH ACTIVITIES . . . . TO PROVIDE THE NECESSARY SECURITY AGAINST
UNREASONABLE INTRUSIONS UPON THE PRIVATE LIVES OF INDIVIDUALS, THE
FRAMERS OF THE FOURTH AMENDMENT REQUIRED ADHERENCE TO JUDICIAL
PROCESSES WHEREVER POSSIBLE.  AND SUBSEQUENT HISTORY HAS CONFIRMED THE
WISDOM OF THAT REQUIREMENT. 

 .          .          .          . 

     "A SEARCH OR SEIZURE WITHOUT A WARRANT AS AN INCIDENT TO A

  LAWFUL ARREST 4AS ALWAYS BEEN CONSIDERED TO BE A STRICTLY LIMITED

RIGHT.  IT GROWS OUT OF THE INHERENT NECESSITIES OF THE SITUATION

  AT THE TIME OF THE ARREST.  BUT THERE MUST BE SOMETHING MORE IN

  THE WAY OF NECESSITY THAN MERELY A LAWFUL ARREST."  ID. AT 705,

  708. 

IN 1950, TWO YEARS AFTER TRUPIANO, /3/  CAME UNITED STATES V.
RABINOWITZ, 339 U.S. 56, THE DECISION UPON WHICH CALIFORNIA PRIMARILY
RELIES IN THE CASE NOW BEFORE US.  IN RABINOWITZ, FEDERAL AUTHORITIES
HAD BEEN INFORMED THAT THE DEFENDANT WAS DEALING IN STAMPS BEARING
FORGED OVERPRINTS.  ON THE BASIS OF THAT INFORMATION THEY SECURED A
WARRANT FOR HIS ARREST, WHICH THEY EXECUTED AT HIS ONE-ROOM BUSINESS
OFFICE.  AT THE TIME OF THE ARREST, THE OFFICERS "SEARCHED THE DESK,
SAFE, AND FILE CABINETS IN THE OFFICE FOR ABOUT AN HOUR AND A HALF,"
ID., AT 59, AND SEIZED 573 STAMPS WITH FORGED OVERPRINTS.  THE STAMPS
WERE ADMITTED INTO EVIDENCE AT THE DEFENDANT'S TRIAL, AND THIS COURT
AFFIRMED HIS CONVICTION, REJECTING THE CONTENTION THAT THE WARRANTLESS
SEARCH HAD BEEN UNLAWFUL.  THE COURT HELD THAT THE SEARCH IN ITS
ENTIRETY FELL WITHIN THE PRINCIPLE GIVING LAW ENFORCEMENT AUTHORITIES
"(THE RIGHT 'TO SEARCH THE PLACE WHERE THE ARREST IS MADE IN ORDER TO
FIND AND SEIZE THINGS CONNECTED WITH THE CRIME . . . .'"  ID., AT 61. 
HARRIS WAS REGARDED AS "AMPLE AUTHORITY" FOR THAT CONCLUSION.  ID., AT
63.  THE OPINION REJECTED THE RULE OF TRUPIANO THAT "IN SEIZING GOODS
AND ARTICLES, LAW ENFORCEMENT AGENTS MUST SECURE AND USE SEARCH
WARRANTS WHEREVER REASONABLY PRACTICABLE."  THE TEST, SAID THE COURT,
"IS NOT WHETHER IT IS REASONABLE TO PROCURE A SEARCH WARRANT, BUT
WHETHER THE SEARCH WAS REASONABLE."  ID., AT 66. 

RABINOWITZ HAS COME TO STAND FOR THE PROPOSITION, INTER ALIA, THAT A
WARRANTLESS SEARCH "INCIDENT TO A LAWFUL ARREST" MAY GENERALLY EXTEND
TO THE AREA THAT IS CONSIDERED TO BE IN THE "POSSESSION" OR UNDER THE
"CONTROL" OF THE PERSON ARRESTED.  /4/  AND IT WAS ON THE BASIS OF THAT
PROPOSITION THAT THE CALIFORNIA COURTS UPHELD THE SEARCH OF THE
PETITIONER'S ENTIRE HOUSE IN THIS CASE.  THAT DOCTRINE, HOWEVER, AT
LEAST IN THE BROAD SENSE IN WHICH IT WAS APPLIED BY THE CALIFORNIA
COURTS IN THIS CASE, CAN WITHSTAND NEITHER HISTORICAL NOR RATIONAL
ANALYSIS. 

EVEN LIMITED TO ITS OWN FACTS, THE RABINOWITZ DECISION WAS, AS WE
HAVE SEEN, HARDLY FOUNDED ON AN UNIMPEACHABLE LINE OF AUTHORITY.  AS
MR. JUSTICE FRANKFURTER COMMENTED IN DISSENT IN THAT CASE, THE "HINT"
CONTAINED IN WEEKS WAS, WITHOUT PERSUASIVE JUSTIFICATION, "LOOSELY
TURNED INTO DICTUM AND FINALLY ELEVATED TO A DECISION."  339 U.S.,AT
75.  AND THE APPROACH TAKEN IN CASES SUCH AS GO-BART, LEFKOWITZ, AND
TRUPIANO WAS ESSENTIALLY DISREGARDED BY THE RABINOWITZ COURT. 

NOR IS THE RATIONALE BY WHICH THE STATE SEEKS HERE TO SUSTAIN THE
SEARCH OF THE PETITIONER'S HOUSE SUPPORTED BY A REASONED VIEW OF THE
BACKGROUND AND PURPOSE OF THE FOURTH AMENDMENT.  MR. JUSTICE
FRANKFURTER WISELY POINTED OUT IN HIS RABINOWITZ DISSENT THAT THE
AMENDMENT'S PROSCRIPTION OF "UNREASONABLE SEARCHES AND SEIZURES" MUST
BE READ IN LIGHT OF "THE HISTORY THAT GAVE RISE TO THE WORDS"-- A
HISTORY OF "ABUSES SO DEEPLY FELT BY THE COLONIES AS TO BE ONE OF THE
POTENT CAUSES OF THE REVOLUTION . . . ."  339 U.S.,AT 69.  THE
AMENDMENT WAS IN LARGE PART A REACTION TO THE GENERAL WARRANTS AND
WARRANTLESS SEARCHES THAT HAD SO ALIENATED THE COLONISTS AND HAD HELPED
SPEED THE MOVEMENT FOR INDEPENDENCE.  /5/  IN THE SCHEME OF THE
AMENDMENT, THEREFORE, THE REQUIREMENT THAT "NO WARRANTS SHALL ISSUE,
BUT UPON PROBABLE CAUSE," PLAYS A CRUCIAL PART.  AS THE COURT PUT IT IN
MCDONALD V. UNITED STATES, 335 U.S. 451: 

     "WE ARE NOT DEALING WITH FORMALITIES.  THE PRESENCE OF A
SEARCH

  WARRANT SERVES A HIGH FUNCTION.  ABSENT SOME GRAVE EMERGENCY, THE

  FOURTH AMENDMENT HAS INTERPOSED A MAGISTRATE BETWEEN THE CITIZEN

  AND THE POLICE.  THIS WAS DONE NOT TO SHIELD CRIMINALS NOR TO

  MAKE THE HOME A SAFE HAVEN FOR ILLEGAL ACTIVITIES.  IT WAS DONE

  SO THAT AN OBJECTIVE MIND MIGHT WEIGH THE NEED TO INVADE THAT

  PRIVACY IN ORDER TO ENFORCE THE LAW.  THE RIGHT OF PRIVACY WAS

  DEEMED TOO PRECIOUS TO ENTRUST TO THE DISCRETION OF THOSE WHOSE

  JOB IS THE DETECTION OF CRIME AND THE ARREST OF CRIMINALS . . . .

  AND SO THE CONSTITUTION REQUIRES A MAGISTRATE TO PASS ON THE

DESIRES OF THE POLICE BEFORE THEY VIOLATE THE PRIVACY OF THE

  HOME.  WE CANNOT BE TRUE TO THAT CONSTITUTIONAL REQUIREMENT AND

  EXCUSE THE ABSENCE OF A SEARCH WARRANT WITHOUT A SHOWING BY THOSE

  WHO SEEK EXEMPTION FROM THE CONSTITUTIONAL MANDATE THAT THE

  EXIGENCIES OF THE SITUATION MADE THAT COURSE IMPERATIVE."  ID.,

  AT 455-456. 

EVEN IN THE AGNELLO CASE THE COURT RELIED UPON THE RULE THAT
"(BELIEF, HOWEVER WELL FOUNDED, THAT AN ARTICLE SOUGHT IS CONCEALED IN
A DWELLING HOUSE FURNISHES NO JUSTIFICATION FOR A SEARCH OF THAT PLACE
WITHOUT A WARRANT.  AND SUCH SEARCHES ARE HELD UNLAWFUL NOTWITHSTANDING
FACTS UNQUESTIONABLY SHOWING PROBABLE CAUSE."  269 U.S.,AT 33. 
CLEARLY, THE GENERAL REQUIREMENT THAT A SEARCH WARRANT BE OBTAINED IS
NOT LIGHTLY TO BE DISPENSED WITH, AND "THE BURDEN IS ON THOSE SEEKING
(AN) EXEMPTION (FROM THE REQUIREMENT) TO SHOW THE NEED FOR IT . . . ." 
UNITED STATES V. JEFFERS, 342 U.S. 48, 51. 

ONLY LAST TERM IN TERRY V. OHIO, 392 U.S. 1, WE EMPHASIZED THAT "THE
POLICE MUST, WHENEVER PRACTICABLE, OBTAIN ADVANCE JUDICIAL APPROVAL OF
SEARCHES AND SEIZURES THROUGH THE WARRANT PROCEDURE," ID., AT 20, /6/
AND THAT "(THE SCOPE OF (A) SEARCH MUST BE 'STRICTLY TIED TO AND
JUSTIFIED BY' THE CIRCUMSTANCES WHICH RENDERED ITS INITIATION
PERMISSIBLE."  ID., AT 19.  THE SEARCH UNDERTAKEN BY THE OFFICER IN
THAT "STOP AND FRISK" CASE WAS SUSTAINED UNDER THAT TEST, BECAUSE IT
WAS NO MORE THAN A "PROTECTIVE . . . SEARCH FOR WEAPONS."  ID., AT 29. 
BUT IN A COMPANION CASE, SIBRON V. NEW YORK, 392 U.S. 40, WE APPLIED
THE SAME STANDARD TO ANOTHER SET OF FACTS AND REACHED A CONTRARY
RESULT, HOLDING THAT A POLICEMAN'S ACTION IN THRUSTING HIS HAND INTO A
SUSPECT'S POCKET HAD BEEN NEITHER MOTIVATED BY NOR LIMITED TO THE
OBJECTIVE OF PROTECTION.  /7/  RATHER, THE SEARCH HAD BEEN MADE IN
ORDER TO FIND NARCOTICS, WHICH WERE IN FACT FOUND. 

A SIMILAR ANALYSIS UNDERLIES THE "SEARCH INCIDENT TO ARREST"
PRINCIPLE, AND MARKS ITS PROPER EXTENT.  WHEN AN ARREST IS MADE, IT IS
REASONABLE FOR THE ARRESTING OFFICER TO SEARCH THE PERSON ARRESTED IN
ORDER TO REMOVE ANY WEAPONS THAT THE LATTER MIGHT SEEK TO USE IN ORDER
TO RESIST ARREST OR EFFECT HIS ESCAPE.  OTHERWISE, THE OFFICER'S SAFETY
MIGHT WELL BE ENDANGERED, AND THE ARREST ITSELF FRUSTRATED.  IN
ADDITION, IT IS ENTIRELY REASONABLE FOR THE ARRESTING OFFICER TO SEARCH
FOR AND SEIZE ANY EVIDENCE ON THE ARRESTEE'S PERSON IN ORDER TO PREVENT
ITS CONCEALMENT OR DESTRUCTION.  AND THE AREA INTO WHICH AN ARRESTEE
MIGHT REACH IN ORDER TO GRAB A WEAPON OR EVIDENTIARY ITEMS MUST, OF
COURSE, BE GOVERNED BY A LIKE RULE.  A GUN ON A TABLE OR IN A DRAWER IN
FRONT OF ONE WHO IS ARRESTED CAN BE AS DANGEROUS TO THE ARRESTING
OFFICER AS ONE CONCEALED IN THE CLOTHING OF THE PERSON ARRESTED.  THERE
IS AMPLE JUSTIFICATION, THEREFORE, FOR A SEARCH OF THE ARRESTEE'S
PERSON AND THE AREA "WITHIN HIS IMMEDIATE CONTROL"-- CONSTRUING THAT
PHRASE TO MEAN THE AREA FROM WITHIN WHICH HE MIGHT GAIN POSSESSION OF A
WEAPON OR DESTRUCTIBLE EVIDENCE. 

THERE IS NO COMPARABLE JUSTIFICATION, HOWEVER, FOR ROUTINELY
SEARCHING ANY ROOM OTHER THAN THAT IN WHICH AN ARREST OCCURS-- OR, FOR
THAT MATTER, FOR SEARCHING THROUGH ALL THE DESK DRAWERS OR OTHER CLOSED
OR CONCEALED AREAS IN THAT ROOM ITSELF.  SUCH SEARCHES, IN THE ABSENCE
OF WELL-RECOGNIZED EXCEPTIONS, MAY BE MADE ONLY UNDER THE AUTHORITY OF
A SEARCH WARRANT.  /8/  THE "ADHERENCE TO JUDICIAL PROCESSES" MANDATED
BY THE FOURTH AMENDMENT REQUIRES NO LESS. 

THIS IS THE PRINCIPLE THAT UNDERLAY OUR DECISION IN PRESTON V.
UNITED STATES, 376 U.S. 364.  IN THAT CASE THREE MEN HAD BEEN ARRESTED
IN A PARKED CAR, WHICH HAD LATER BEEN TOWED TO A GARAGE AND SEARCHED BY
POLICE.  WE HELD THE SEARCH TO HAVE BEEN UNLAWFUL UNDER THE FOURTH
AMENDMENT, DESPITE THE CONTENTION THAT IT HAD BEEN INCIDENTAL TO A
VALID ARREST.  OUR REASONING WAS STRAIGHTFORWARD: 

"THE RULE ALLOWING CONTEMPORANEOUS SEARCHES IS JUSTIFIED, FOR
EXAMPLE, BY THE NEED TO SEIZE WEAPONS AND OTHER THINGS WHICH MIGHT BE
USED TO ASSAULT AN OFFICER OR EFFECT AN ESCAPE, AS WELL AS BY THE NEED
TO PREVENT THE DESTRUCTION OF EVIDENCE OF THE CRIME-- THINGS WHICH
MIGHT EASILY HAPPEN WHERE THE WEAPON OR EVIDENCE IS ON THE ACCUSED'S
PERSON OR UNDER HIS IMMEDIATE CONTROL.  BUT THESE JUSTIFICATIONS ARE
ABSENT WHERE A SEARCH IS REMOTE IN TIME OR PLACE FROM THE ARREST." 
ID., AT 367.  /9/ 

THE SAME BASIC PRINCIPLE WAS REFLECTED IN OUR OPINION LAST TERM IN
SIBRON.  THAT OPINION DEALT WITH PETERS V. NEW YORK, NO. 74, AS WELL AS
WITH SIBRON'S CASE AND PETERS INVOLVED A SEARCH THAT WE UPHELD AS
INCIDENT TO A PROPER ARREST.  WE SUSTAINED THE SEARCH, HOWEVER, ONLY
BECAUSE ITS SCOPE HAD BEEN "REASONABLY LIMITED" BY THE "NEED TO SEIZE
WEAPONS" AND "TO PREVENT THE DESTRUCTION OF EVIDENCE," TO WHICH PRESTON
HAD REFERRED.  WE EMPHASIZED THAT THE ARRESTING OFFICER "DID NOT ENGAGE
IN AN UNRESTRAINED AND THOROUGHGOING EXAMINATION OF PETERS AND HIS
PERSONAL EFFECTS.  HE SEIZED HIM TO CUT SHORT HIS FLIGHT, AND HE
SEARCHED HIM PRIMARILY FOR WEAPONS."  392 U.S.,AT 67. 

IT IS ARGUED IN THE PRESENT CASE THAT IT IS "REASONABLE" TO SEARCH A
MAN'S HOUSE WHEN HE IS ARRESTED IN IT.  BUT THAT ARGUMENT IS FOUNDED ON
LITTLE MORE THAN A SUBJECTIVE VIEW REGARDING THE ACCEPTABILITY OF
CERTAIN SORTS OF POLICE CONDUCT, AND NOT ON CONSIDERATIONS RELEVANT TO
FOURTH AMENDMENT INTERESTS.  UNDER SUCH AN UNCONFINED ANALYSIS, FOURTH
AMENDMENT PROTECTION IN THIS AREA WOULD APPROACH THE EVAPORATION
POINT.  IT IS NOT EASY TO EXPLAIN WHY, FOR INSTANCE, IT IS LESS
SUBJECTIVELY "REASONABLE" TO SEARCH A MAN'S HOUSE WHEN HE IS ARRESTED
ON HIS FRONT LAWN-- OR JUST DOWN THE STREET-- THAN IT IS WHEN HE
HAPPENS TO BE IN THE HOUSE AT THE TIME OF ARREST.  /10/  AS MR. JUSTICE
FRANKFURTER PUT IT: 

"TO SAY THAT THE SEARCH MUST BE REASONABLE IS TO REQUIRE SOME
CRITERION OF REASON.  IT IS NO GUIDE AT ALL EITHER FOR A JURY OR FOR
DISTRICT JUDGES OR THE POLICE TO SAY THAT AN 'UNREASONABLE SEARCH' IS
FORBIDDEN-- THAT THE SEARCH MUST BE REASONABLE.  WHAT IS THE TEST OF
REASON WHICH MAKES A SEARCH REASONABLE?  THE TEST IS THE REASON
UNDERLYING AND EXPRESSED BY THE FOURTH AMENDMENT:  THE HISTORY AND THE
EXPERIENCE WHICH IT EMBODIES AND THE SAFEGUARDS AFFORDED BY IT AGAINST
THE EVILS TO WHICH IT WAS A RESPONSE."  UNITED STATES V. RABINOWITZ,
339 U.S.,AT 83 (DISSENTING OPINION).  THUS, ALTHOUGH "(THE RECURRING
QUESTIONS OF THE REASONABLENESS OF SEARCHES" DEPEND UPON "THE FACTS AND
CIRCUMSTANCES-- THE TOTAL ATMOSPHERE OF THE CASE," ID., AT 63, 66
(OPINION OF THE COURT), THOSE FACTS AND CIRCUMSTANCES MUST BE VIEWED IN
THE LIGHT OF ESTABLISHED FOURTH AMENDMENT PRINCIPLES. 

IT WOULD BE POSSIBLE, OF COURSE, TO DRAW A LINE BETWEEN RABINOWITZ
AND HARRIS ON THE ONE HAND, AND THIS CASE ON THE OTHER.  FOR RABINOWITZ
INVOLVED A SINGLE ROOM, AND HARRIS A FOUR-ROOM APARTMENT, WHILE IN THE
CASE BEFORE US AN ENTIRE HOUSE WAS SEARCHED.  BUT SUCH A DISTINCTION
WOULD BE HIGHLY ARTIFICIAL.  THE RATIONALE THAT ALLOWED THE SEARCHES
AND SEIZURES IN RABINOWITZ AND HARRIS WOULD ALLOW THE SEARCHES AND
SEIZURES IN THIS CASE.  NO CONSIDERATION RELEVANT TO THE FOURTH
AMENDMENT SUGGESTS ANY POINT OF RATIONAL LIMITATION, ONCE THE SEARCH IS
ALLOWED TO GO BEYOND THE AREA FROM WHICH THE PERSON ARRESTED MIGHT
OBTAIN WEAPONS OR EVIDENTIARY ITEMS.  /11/  THE ONLY REASONED
DISTINCTION IS ONE BETWEEN A SEARCH OF THE PERSON ARRESTED AND THE AREA
WITHIN HIS REACH ON THE ONE HAND, AND MORE EXTENSIVE SEARCHES ON THE
OTHER.  /12/ 

THE PETITIONER CORRECTLY POINTS OUT THAT ONE RESULT OF DECISIONS
SUCH AS RABINOWITZ AND HARRIS IS TO GIVE LAW ENFORCEMENT OFFICIALS THE
OPPORTUNITY TO ENGAGE IN SEARCHES NOT JUSTIFIED BY PROBABLE CAUSE, BY
THE SIMPLE EXPEDIENT OF OF ARRANGING TO ARREST SUSPECTS AT HOME RATHER
THAN ELSEWHERE.  WE DO NOT SUGGEST THAT THE PETITIONER IS NECESSARILY
CORRECT IN HIS ASSERTION THAT SUCH A STRATEGY WAS UTILIZED HERE, /13/
BUT THE FACT REMAINS THAT HAD HE BEEN ARRESTED EARLIER IN THE DAY, AT
HIS PLACE OF EMPLOYMENT RATHER THAN AT HOME, NO SEARCH OF HIS HOUSE
COULD HAVE BEEN MADE WITHOUT A SEARCH WARRANT.  IN ANY EVENT, EVEN
APART FROM THE POSSIBILITY OF SUCH POLICE TACTICS, THE GENERAL POINT SO
FORCEFULLY MADE BY JUDGE LEARNED HAND IN UNITED STATES V.
KIRSCHENBLATT, 16 F.2D 202, REMAINS: 

     "AFTER ARRESTING A MAN IN HIS HOUSE, TO RUMMAGE AT WILL AMONG

  HIS PAPERS IN SEARCH OF WHATEVER WILL CONVICT HIM, APPEARS TO US

  TO BE INDISTINGUISHABLE FROM WHAT MIGHT BE DONE UNDER A GENERAL

  WARRANT; INDEED, THE WARRANT WOULD GIVE MORE PROTECTION, FOR

  PRESUMABLY IT MUST BE ISSUED BY A MAGISTRATE.  TRUE, BY

  HYPOTHESIS THE POWER WOULD NOT EXIST, IF THE SUPPOSED OFFENDER

  WERE NOT FOUND ON THE PREMISES; BUT IT IS SMALL CONSOLATION TO

  KNOW THAT ONE'S PAPERS ARE SAFE ONLY SO LONG AS ONE IS NOT AT

  HOME."  ID., AT 203. 

RABINOWITZ AND HARRIS HAVE BEEN THE SUBJECT OF CRITICAL COMMENTARY
FOR MANY YEARS, /14/  AND HAVE BEEN RELIED UPON LESS AND LESS IN OUR
OWN DECISIONS.  /15/  IT IS TIME, FOR THE REASONS WE HAVE STATED, TO
HOLD THAT ON THEIR OWN FACTS, AND INSOFAR AS THE PRINCIPLES THEY STAND
FOR ARE INCONSISTENT WITH THOSE THAT WE HAVE ENDORSED TODAY, THEY ARE
NO LONGER TO BE FOLLOWED. 

APPLICATION OF SOUND FOURTH AMENDMENT PRINCIPLES TO THE FACTS OF
THIS CASE PRODUCES A CLEAR RESULT.  THE SEARCH HERE WENT FAR BEYOND THE
PETITIONER'S PERSON AND THE AREA FROM WITHIN WHICH HE MIGHT HAVE
OBTAINED EITHER A WEAPON OR SOMETHING THAT COULD HAVE BEEN USED AS
EVIDENCE AGAINST HIM.  THERE WAS NO CONSTITUTIONAL JUSTIFICATION, IN
THE ABSENCE OF A SEARCH WARRANT, FOR EXTENDING THE SEARCH BEYOND THAT
AREA.  THE SCOPE OF THE SEARCH WAS, THEREFORE, "UNREASONABLE" UNDER THE
FOURTH AND FOURTEENTH AMENDMENTS, AND THE PETITIONER'S CONVICTION
CANNOT STAND.  /16/

              REVERSED. 

/1/  THE AFFIDAVIT SUPPORTING THE WARRANT IS SET OUT IN THE OPINION
OF THE COURT OF APPEAL, 61 CAL.RPTR.,AT 715-716, N. 1, AND THE STATE
DOES NOT CHALLENGE ITS INSUFFICIENCY UNDER THE PRINCIPLES OF AGUILAR V.
TEXAS, 378 U.S. 108, AND SPINELLI V. UNITED STATES, 393 U.S. 410. 

/2/  THE COURT ASSUMED THAT THE ARRESTS WERE LAWFUL.  282 U.S.,AT
356. 

/3/  SEE ALSO MCDONALD V. UNITED STATES, 335 U.S. 451. 

/4/  DECISIONS OF THIS COURT SINCE RABINOWITZ HAVE APPLIED THE
ABSTRACT DOCTRINE OF THAT CASE TO VARIOUS FACTUAL SITUATIONS WITH
DIVERGENT RESULTS.  COMPARE KER V. CALIFORNIA, 374 U.S. 23, 42; ABEL V.
UNITED STATES, 362 U.S. 217; AND DRAPER V. UNITED STATES, 358 U.S. 307,
WITH KREMEN V. UNITED STATES, 353 U.S. 346 (PER CURIAM).  CF. CHAPMAN
V. UNITED STATES, 365 U.S. 610; JONES V. UNITED STATES, 357 U.S. 493,
499-500. 

/5/  SEE GENERALLY B0YD V. UNITED STATES, 116 U.S. 616, 624-625;
WEEKS V. UNITED STATES, 232 U.S. 383, 389-391; DAVIS V. UNITED STATES,
328 U.S. 582, 603-605 (DISSENTING OPINION); HARRIS V. UNITED STATES,
331 U.S. 145, 157-162 (DISSENTING OPINION); STANFORD V. TEXAS, 379 U.S.
476, 481-482. 

/6/  SEE ALSO DAVIS V. MISSISSIPPI, 394 U.S. 721, 728; KATZ V.
UNITED STATES, 389 U.S. 347, 356-358; WARDEN V. HAYDEN, 387 U.S. 294,
299; PRESTON V. UNITED STATES, 376 U.S. 364, 367. 

/7/  OUR SIBRON OPINION DEALT WITH TWO CASES.  WE REFER HERE TO NO.
63, INVOLVING THE APPELLANT SIBRON.  SEE INFRA, AT 764. 

/8/ SEE KATZ V. UNITED STATES, 389 U.S. 347, 357-358. 

/9/  OUR HOLDING TODAY IS OF COURSE ENTIRELY CONSISTENT WITH THE
RECOGNIZED PRINCIPLE THAT, ASSUMING THE EXISTENCE OF PROBABLE CAUSE,
AUTOMOBILES AND OTHER VEHICLES MAY BE SEARCHED WITHOUT WARRANTS "WHERE
IT IS NOT PRACTICABLE TO SECURE A WARRANT BECAUSE THE VEHICLE CAN BE
QUICKLY MOVED OUT OF THE LOCALITY OR JURISDICTION IN WHICH THE WARRANT
MUST BE SOUGHT."  CARROLL V. UNITED STATES, 267 U.S. 132, 153; SEE
BRINEGAR V. UNITED STATES, 338 U.S. 160. 

/10/  SOME COURTS HAVE CARRIED THE RABINOWITZ APPROACH TO JUST SUCH
LENGTHS.  SEE, E.G., CLIFTON V. UNITED STATES, 224 F.2D 329 (C.A. 4TH
CIR.) CERT. DENIED, 350 U.S. 894 (PURCHASER OF ILLICIT WHISKEY ARRESTED
IN BACK YARD OF SELLER; SEARCH OF ONE ROOM OF HOUSE SUSTAINED); UNITED
STATES V. JACKSON149 F.SUPP.  937 (D.C.D.C.), REV'D ON OTHER GROUNDS,
102 U.S.APP.D.C. 109, 250 F.2D 772 (SUSPECT ARRESTED HALF A BLOCK FROM
HIS RENTED ROOM; SEARCH OF ROOM UPHELD).  BUT SEE JAMES V. LOUISIANA
382 U.S. 36 (PER CURIAM). 

/11/  CF. MR. JUSTICE JACKSON'S DISSENTING COMMENT IN HARRIS: 

"THE DIFFICULTY WITH THIS PROBLEM FOR ME IS THAT ONCE THE SEARCH IS
ALLOWED TO GO BEYOND THE PERSON ARRESTED AND THE OBJECTS UPON HIM OR IN
HIS IMMEDIATE PHYSICAL CONTROL, I SEE NO PRACTICAL LIMIT SHORT OF THAT
SET IN THE OPINION OF THE COURT-- AND THAT MEANS TO ME NO LIMIT AT
ALL."  331 U.S.,AT 197.     /12/  IT IS ARGUED IN DISSENT THAT SO LONG
AS THERE IS PROBABLE CAUSE TO SEARCH THE PLACE WHERE AN ARREST OCCURS,
A SEARCH OF THAT PLACE SHOULD BE PERMITTED EVEN THOUGH NO SEARCH
WARRANT HAS BEEN OBTAINED.  THIS POSITION SEEMS TO BE BASED PRINCIPALLY
ON TWO PREMISES:  FIRST, THAT ONCE AN ARREST HAS BEEN MADE, THE
ADDITIONAL INVASION OF PRIVACY STEMMING FROM THE ACCOMPANYING SEARCH IS
"RELATIVELY MINOR"; AND SECOND, THAT THE VICTIM OF THE SEARCH MAY
"SHORTLY THEREAFTER"  OBTAIN A JUDICIAL DETERMINATION OF WHETHER THE
SEARCH WAS JUSTIFIED BY PROBABLE CAUSE.  WITH RESPECT TO THE SECOND
PREMISE, ONE MAY INITIALLY QUESTION WHETHER ALL OF THE STATES IN FACT
PROVIDE THE SPEEDY SUPPRESSION PROCEDURES THE DISSENT ASSUMES.  MORE
FUNDAMENTALLY, HOWEVER, WE CANNOT ACCEPT THE VIEW THAT FOURTH AMENDMENT
INTERESTS ARE VINDICATED SO LONG AS "THE RIGHTS OF THE CRIMINAL" ARE
"PROTECED) . . . AGAINST INTRODUCTION OF EVIDENCE SEIZED WITHOUT
PROBABLE CAUSE."  THE AMENDMENT IS DESIGNED TO PREVENT, NOT SIMPLY TO
REDRESS, UNLAWFUL POLICE ACTION.  IN ANY EVENT, WE CANNOT JOIN IN
CHARACTERIZING THE INVASION OF PRIVACY THAT RESULTS FROM A TO-TO-BOTTOM
SEARCH OF A MAN'S HOUSE AS "MINOR."  AND WE CAN SEE NO REASON WHY,
SIMPLY BECAUSE SOME INTERFERENCE WITH AN INDIVIDUAL'S PRIVACY AND
FREEDOM OF MOVEMENT HAS LAWFULLY TAKEN PLACE, FURTHER INTRUSIONS SHOULD
AUTOMATICALLY BE ALLOWED DESPITE THE ABSENCE OF A WARRANT THAT THE
FOURTH AMENDMENT WOULD OTHERWISE REQUIRE. 

/13/  ALTHOUGH THE WARRANT WAS ISSUED AT 10:39 A.M. AND THE ARREST
WAS NOT MADE UNTIL LATE IN THE AFTERNOON, THE STATE SUGGESTS THAT THE
DELAY IS ACCOUNTED FOR BY NORMAL POLICE PROCEDURES AND BY THE HEAVY
WORKLOAD OF THE OFFICER IN CHARGE.  IN ADDITION, THAT OFFICER TESTIFIED
THAT HE AND HIS COLLEAGUES WENT TO THE PETITIONER'S HOUSE "TO KEEP FROM
APPROACHING HIM AT HIS PLACE OF BUSINESS TO CAUSE HIM ANY PROBLEM
THERE." 

/14/  SEE, E.G., J. LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME
COURT 87-117 (1966); WAY, INCREASING SCOPE OF SEARCH INCIDENTAL TO
ARREST, 1959 WASH. U.L.Q. 261; NOTE, SCOPE, LIMITATIONS FOR SEARCHES
INCIDENT TO ARREST, 78 YALE L.J. 433 (1969); NOTE, THE SUPREME COURT
1966 TERM, 81 HARV.L.REV.  69, 117-122 (1967). 

/15/  CF. DYKE V. TAYLOR IMPLEMENT MFG. CO., 391 U.S. 216, 220; KATZ
V. UNITED STATES, 389 U.S.,AT 357-358, N. 20; WARDEN V. HAYDEN, 387
U.S.,AT 299; STONER V. CALIFORNIA, 376 U.S. 483, 487.  BUT SEE COOPER
V. CALIFORNIA, 386 U.S. 58, 62; KER V. CALIFORNIA, 374 U.S.,AT 42
(OPINION OF CLARK, J.); CF. BECK V. OHIO, 379 U.S. 89, 91; ABEL V.
UNITED STATES, 362 U.S.,AT 236-239; GIORDENELLO V. UNITED STATES, 357
U.S. 480, 488. 

/16/  THE STATE HAS MADE VARIOUS SUBSIDIARY CONTENTIONS, INCLUDING
ARGUMENTS THAT IT WOULD HAVE BEEN UNDULY BURDENSOME TO OBTAIN A WARRANT
SPECIFYING THE COINS TO BE SEIZED AND THAT INTRODUCTION OF THE FRUITS
OF THE SEARCH WAS HARMLESS ERROR.  WE REJECT THOSE CONTENTIONS AS BEING
WITHOUT MERIT. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION WITH THESE REMARKS CONCERNING A FACTOR TO
WHICH THE COURT HAS NOT ALLUDED. 

THE ONLY THING THAT HAS GIVEN ME PAUSE IN VOTING TO OVERRULE HARRIS
AND RABINOWITZ IS THAT AS A RESULT OF MAPP V. OHIO, 367 U.S. 643
(1961), AND KER V. CALIFORNIA, 374 U.S. 23 (1963), EVERY CHANGE IN
FOURTH AMENDMENT LAW MUST NOW BE OBEYED BY STATE OFFICIALS FACING
WIDELY DIFFERENT PROBLEMS OF LOCAL LAW ENFORCEMENT.  WE SIMPLY DO NOT
KNOW THE EXTENT TO WHICH CITIES AND TOWNS ACROSS THE NATION ARE
PREPARED TO ADMINISTER THE GREATLY EXPANDED WARRANT SYSTEM WHICH WILL
BE REQUIRED BY TODAY'S DECISION; NOR CAN WE SAY WITH ASSURANCE THAT IN
EACH AND EVERY LOCAL SITUATION, THE WARRANT REQUIREMENT PLAYS AN
ESSENTIAL ROLE IN THE PROTECTION OF THOSE FUNDAMENTAL LIBERTIES
PROTECTED AGAINST STATE INFRINGEMENT BY THE FOURTEENTH AMENDMENT. 

THUS, ONE IS NOW FACED WITH THE DILEMMA, ENVISIONED IN MY SEPARATE
OPINION IN KER, 374 U.S.,AT 45-46, OF CHOOSING BETWEEN VINDICATING
SOUND FOURTH AMENDMENT PRINCIPLES AT THE POSSIBLE EXPENSE OF STATE
CONCERNS, LONG RECOGNIZED TO BE CONSONANT WITH THE FOURTEENTH AMENDMENT
BEFORE MAPP AND KER CAME ON THE BOOKS, OR DILUTING THE FEDERAL BILL OF
RIGHTS IN THE INTEREST OF LEAVING THE STATES AT LEAST SOME ELBOW ROOM
IN THEIR METHODS OF CRIMINAL LAW ENFORCEMENT.  NO COMPARABLE DILEMMA
EXISTS, OF COURSE, WITH RESPECT TO THE IMPACT OF TODAY'S DECISION
WITHIN THE FEDERAL SYSTEM ITSELF. 

THIS FEDERAL-STATE FACTOR HAS NOT BEEN AN EASY ONE FOR ME TO
RESOLVE, BUT IN THE LAST ANALYSIS I CANNOT IN GOOD CONSCIENCE VOTE TO
PERPETUATE BAD FOURTH AMENDMENT LAW. 

I ADD ONLY THAT THIS CASE, TOGETHER WITH BENTON V. MARYLAND, POST,
P. 784, NORTH CAROLINA V. PEARCE, ANTE, P. 711, AND SIMPSON V. RICE,
ANTE, P. 711, ALL DECIDED TODAY, SERVE TO POINT UP, AS FEW OTHER CASES
HAVE, THE PROFOUND CHANGES THAT THE "INCORPORATION DOCTRINE" HAS
WROUGHT BOTH IN THE WORKINGS OF OUR FEDERAL SYSTEM AND UPON THE
ADJUDICATIVE PROCESSES OF THIS COURT. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

FEW AREAS OF THE LAW HAVE BEEN AS SUBJECT TO SHIFTING CONSTITUTIONAL
STANDARDS OVER THE LAST 50 YEARS AS THAT OF THE SEARCH "INCIDENT TO AN
ARREST."  THERE HAS BEEN A REMARKABLE INSTABILITY IN THIS WHOLE AREA,
WHICH HAS SEEN AT LEAST FOUR MAJOR SHIFTS IN EMPHASIS.  TODAY'S OPINION
MAKES AN UNTIMELY FIFTH.  IN MY VIEW, THE COURT SHOULD NOT NOW ABANDON
THE OLD RULE. 

   I. 

THE MODERN ODYSSEY OF DOCTRINE IN THIS FIELD IS DETAILED IN THE
MAJORITY OPINION.  IT BEGAN WITH WEEKS V. UNITED STATES, 232 U.S. 383
(1914), WHERE THE COURT PAUSED TO NOTE WHAT THE CASE BEFORE IT WAS
NOT.  "IT IS NOT AN ASSERTION OF THE RIGHT ON THE PART OF THE
GOVERNMENT, ALWAYS RECOGNIZED UNDER ENGLISH AND AMERICAN LAW, TO SEARCH
THE PERSON OF THE ACCUSED WHEN LEGALLY ARRESTED TO DISCOVER AND SEIZE
THE FRUITS OR EVIDENCE OF CRIME.  THIS RIGHT HAS BEEN UNIFORMLY
MAINTAINED IN MANY CASES . . . . NOR IS IT THE CASE OF BURGLAR'S TOOLS
OR OTHER PROOFS OF GUILT FOUND UPON HIS ARREST WITHIN THE CONTROL OF
THE ACCUSED."  ID., AT 392.  THIS SCOPE OF SEARCH INCIDENT TO ARREST,
EXTENDING TO ALL ITEMS UNDER THE SUSPECT'S "CONTROL," WAS REAFFIRMED IN
A DICTUM IN CARROLL V. UNITED STATES, 267 U.S. 132, 158 (1925). 
ACCORD, AGNELLO V. UNITED STATES, 269 U.S. 20, 30 (1925) (HOLDING THAT
"THE PLACE WHERE THE ARREST IS MADE" MAY BESEARCHED "IS NOT TO BE
DOUBTED").  THE RULE WAS REAFFIRMED IN MARRON V. UNITED STATES, 275
U.S. 192, 199 (1927), WHERE THE COURT ASSERTED THAT AUTHORITY TO SEARCH
INCIDENT TO AN ARREST "EXTENDED TO ALL PARTS OF THE PREMISES USED FOR
THE UNLAWFUL PURPOSE." 

WITHIN FIVE YEARS, THIS RULE WAS QUALIFIED BY TWO PROHIBITION ACT
CASES, GO-BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344, 356-358
(1931), AND UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 463-467 (1932). 

IF GO-BART AND LEFKOWITZ REPRESENTED A RETREAT FROM THE RULE OF
WEEKS, CARROLL, AGNELLO, AND MARRON, THE VIGOR OF THE EARLIER RULE WAS
REAFFIRMED IN HARRIS V. UNITED STATES, 331 U.S. 145 (1947), WHICH HAS,
BUT FOR ONE BRIEF INTERLUDE, CLEARLY BEEN THE LAW UNTIL TODAY.  THE
VERY NEXT TERM AFTER HARRIS, IN TRUPIANO V. UNITED STATES, 334 U.S. 699
(1948), THE COURT HELD UNJUSTIFIABLE THE SEIZURE OF A STILL INCIDENT TO
THE ARREST OF A MAN AT THE STILL SITE, EVEN THOUGH THE STILL WAS
CONTRABAND, HAD BEEN VISIBLE THROUGH AN OPEN DOOR BEFORE ENTERING THE
PREMISES TO BE "SEARCHED," AND ALTHOUGH A CRIME WAS BEING COMMITTED IN
THE OFFICERS' PRESENCE.  ACCORD, THAT YEAR, MCDONALD V. UNITED STATES,
335 U.S. 451 (1948) (GAMBLING GAME SEEN THROUGH TRANSOM BEFORE ENTRY). 
LESS THAN TWO YEARS LATER, HOWEVER, THE COURT RETURNED TO THE HARRIS
RULE IN UNITED STATES V. RABINOWITZ, 339 U.S. 56 (1950), WHERE THE
COURT HELD THAT THE REASONABLENESS OF A SEARCH DOES NOT DEPEND UPON THE
PRACTICABILITY OF OBTAINING A SEARCH WARRANT, AND THAT THE FACT OF A
VALID ARREST IS RELEVANT TO REASONABLENESS.  TRUPIANO WAS PRO TANTO
OVERRULED. 

SUCH RAPID REVERSALS HAVE OCCURRED BEFORE, /1/  BUT THEY ARE RARE. 
HERE THERE HAD BEEN TWO ABOUT-FACES, ONE FOLLOWING HARD UPON THE
OTHER.  JUSTICE FRANKFURTER OBJECTED IN THIS LANGUAGE:  "ESPECIALLY
OUGHT THE COURT NOT REENFORCE NEEDLESSLY THE INSTABILITIES OF OUR DAY
BY GIVING FAIR GROUND FOR THE BELIEF THAT LAW IS THE EXPRESSION OF
CHANCE-- FOR INSTANCE, OF UNEXPECTED CHANGES IN THE COURT'S COMPOSITION
AND THE CONTINGENCIES IN THE CHOICE OF SUCCESSORS."  339 U.S.,AT 86. 
SINCE THAT TIME, THE RULE OF WEEKS, MARRON, HARRIS, AND RABINOWITZ HAS
CLEARLY BEEN THE LAW.  E.G., ABEL V. UNITED STATES, 362 U.S. 217 (1960)
(FRANKFURTER, J., WRITING FOR THE COURT); KER V. CALIFORNIA, 374 U.S.
23 (1963).  /2/

        II. 

THE RULE WHICH HAS PREVAILED, BUT FOR VERY BRIEF OR DOUBTFUL PERIODS
OF ABERRATION, IS THAT A SEARCH INCIDENT TO AN ARREST MAY EXTEND TO
THOSE AREAS UNDER THE CONTROL OF THE DEFENDANT AND WHERE ITEMS SUBJECT
TO CONSTITUTIONAL SEIZURE MAY BE FOUND.  THE JUSTIFICATION FOR THIS
RULE MUST, UNDER THE LANGUAGE OF THE FOURTH AMENDMENT, LIE IN THE
REASONABLENESS OF THE RULE.  TERRY V. OHIO, 392 U.S. 1, 9 (1968);
SIBRON V. NEW YORK, 392 U.S. 40 (1968); ELKINS V. UNITED STATES, 364
U.S. 206, 222 (1960).  THE AMENDMENT PROVIDES: 

     "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES,

  PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES,

  SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON

  PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND

  PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS

  OR THINGS TO BE SEIZED." 

IN TERMS, THEN, THE COURT MUST DECIDE WHETHER A GIVEN SEARCH IS
REASONABLE.  THE AMENDMENT DOES NOT PROSCRIBE "WARRANTLESS SEARCHES"
BUT INSTEAD IT PROSCRIBES "UNREASONABLE SEARCHES" AND THIS COURT HAS
NEVER HELD NOR DOES THE MAJORITY TODAY ASSERT THAT WARRANTLESS SEARCHES
ARE NECESSARILY UNREASONABLE. 

APPLYING THIS REASONABLENESS TEST TO THE AREA OF SEARCHES INCIDENT
TO ARRESTS, ONE THING IS CLEAR AT THE OUTSET.  SEARCH OF AN ARRESTED
MAN AND OF THE ITEMS WITHIN HIS IMMEDIATE REACH MUST IN ALMOST EVERY
CASE BE REASONABLE.  THERE IS ALWAYS A DANGER THAT THE SUSPECT WILL TRY
TO ESCAPE, SEIZING CONCEALED WEAPONS WITH WHICH TO OVERPOWER AND INJURE
THE ARRESTING OFFICERS, AND THERE IS A DANGER THAT HE MAY DESTROY
EVIDENCE VITAL TO THE PROSECUTION.  CIRCUMSTANCES IN WHICH THESE
JUSTIFICATIONS WOULD NOT APPLY ARE SUFFICIENTLY RARE THAT INQUIRY IS
NOT MADE INTO SEARCHES OF THIS SCOPE, WHICH HAVE BEEN CONSIDERED
REASONABLE THROUGHOUT. 

THE JUSTIFICATIONS WHICH MAKE SUCH A SEARCH REASONABLE OBVIOUSLY DO
NOT APPLY TO THE SEARCH OF AREAS TO WHICH THE ACCUSED DOES NOT HAVE
READY PHYSICAL ACCESS.  THIS IS NOT ENOUGH, HOWEVER, TO PROVE SUCH
SEARCHES UNCONSTITUTIONAL.  THE COURT HAS ALWAYS HELD, AND DOES NOT
TODAY DENY, THAT WHEN THERE IS PROBABLE CAUSE TO SEARCH AND IT IS
"IMPRACTICABLE" FOR ONE REASON OR ANOTHER TO GET A SEARCH WARRANT, THEN
A WARRANTLESS SEARCH MAY BE REASONABLE.  E.G., EVEN TRUPIANO V. UNITED
STATES, 334 U.S. 699 (1948).  THIS IS THE CASE WHETHER AN ARREST WAS
MADE AT THE TIME OF THE SEARCH OR NOT.  /3/ 

THIS IS NOT TO SAY THAT A SEARCH CAN BE REASONABLE WITHOUT REGARD TO
THE PROBABLE CAUSE TO BELIEVE THAT SEIZABLE ITEMS ARE ON THE PREMISES. 
BUT WHEN THERE ARE EXIGENT CIRCUMSTANCES, AND PROBABLE CAUSE, THEN THE
SEARCH MAY BE MADE WITHOUT A WARRANT, REASONABLY.  AN ARREST ITSELF MAY
OFTEN CREATE AN EMERGENCY SITUATION MAKING IT IMPRACTICABLE TO OBTAIN A
WARRANT BEFORE EMBARKING ON A RELATED SEARCH.  AGAIN ASSUMING THAT
THERE IS PROBABLE CAUSE TO SEARCH PREMISES AT THE SPOT WHERE A SUSPECT
IS ARRESTED, IT SEEMS TO ME UNREASONABLE TO REQUIRE THE POLICE TO LEAVE
THE SCENE IN ORDER TO OBTAIN A SEARCH WARRANT WHEN THEY ARE ALREADY
LEGALLY THERE TO MAKE A VALID ARREST, AND WHEN THERE MUST ALMOST ALWAYS
BE A STRONG POSSIBILITY THAT CONFEDERATES OF THE ARRESTED MAN WILL IN
THE MEANWHILE REMOVE THE ITEMS FOR WHICH THE POLICE HAVE PROBABLE CAUSE
TO SEARCH.  THIS MUST SO OFTEN BE THE CASE THAT IT SEEMS TO ME AS
UNREASONABLE TO REQUIRE A WARRANT FOR A SEARCH OF THE PREMISES AS TO
REQUIRE A WARRANT FOR SEARCH OF THE PERSON AND HIS VERY IMMEDIATE
SURROUNDINGS. 

THIS CASE PROVIDES A GOOD ILLUSTRATION OF MY POINT THAT IT IS
UNREASONABLE TO REQUIRE POLICE TO LEAVE THE SCENE OF AN ARREST IN ORDER
TO OBTAIN A SEARCH WARRANT WHEN THEY ALREADY HAVE PROBABLE CAUSE TO
SEARCH AND THERE IS A CLEAR DANGER THAT THE ITEMS FOR WHICH THEY MAY
REASONABLY SEARCH WILL BE REMOVED BEFORE THEY RETURN WITH A WARRANT. 
PETITIONER WAS ARRESTED IN HIS HOME AFTER AN ARREST WHOSE VALIDITY WILL
BE EXPLORED BELOW, BUT WHICH I WILL NOW ASSUME WAS VALID.  THERE WAS
DOUBTLESS PROBABLE CAUSE NOT ONLY TO ARREST PETITIONER, BUT ALSO TO
SEARCH HIS HOUSE.  HE HAD OBLIQUELY ADMITTED, BOTH TO A NEIGHBOR AND TO
THE OWNER OF THE BURGLARIZED STORE, THAT HE HAD COMMITTED THE
BURGLARY.  /4/  IN LIGHT OF THIS, AND THE FACT THAT THE NEIGHBOR HAD
SEEN OTHER ADMITTEDLY STOLEN PROPERTY IN PETITIONER'S HOUSE, THERE WAS
SURELY PROBABLE CAUSE ON WHICH A WARRANT COULD HAVE ISSUED TO SEARCH
THE HOUSE FOR THE STOLEN COINS.  MOREOVER, HAD THE POLICE SIMPLY
ARRESTED PETITIONER, TAKEN HIM OFF TO THE STATION HOUSE, AND LATER
RETURNED WITH A WARRANT, /5/  IT SEEMS VERY LIKELY THAT PETITIONER'S
WIFE, WHO IN VIEW OF PETITIONER'S GENERALLY GARRULOUS NATURE MUST HAVE
KNOWN OF THE ROBBERY, WOULD HAVE REMOVED THE COINS.  FOR THE POLICE TO
SEARCH THE HOUSE WHILE THE EVIDENCE THEY HAD PROBABLE CAUSE TO SEARCH
OUT AND SEIZE WAS STILL THERE CANNOT BE CONSIDERED UNREASONABLE.  /6/
     III. 

THIS LINE OF ANALYSIS, SUPPORTED BY THE PRECEDENTS OF THIS COURT,
HINGES ON TWO ASSUMPTIONS.  ONE IS THAT THE ARREST OF PETITIONER
WITHOUT A VALID WARRANT /7/  WAS CONSTITUTIONAL AS THE MAJORITY
ASSUMES; THE OTHER IS THAT THE POLICE WERE NOT REQUIRED TO OBTAIN A
SEARCH WARRANT IN ADVANCE, EVEN THOUGH THEY KNEW THAT THE EFFECT OF THE
ARREST MIGHT WELL BE TO ALERT PETITIONER'S WIFE THAT THE COINS HAD
BETTER BE REMOVED SOON.  THUS IT IS NECESSARY TO EXAMINE THE
CONSTITUTIONALITY OF THE ARREST SINCE IF IT WAS ILLEGAL, THE EXIGENT
CIRCUMSTANCES WHICH IT CREATED MAY NOT, AS THE CONSEQUENCES OF A
LAWLESS ACT, BE USED TO JUSTIFY THE CONTEMPORANEOUS WARRANTLESS
SEARCH.  BUT FOR THE ARREST, THE WARRANTLESS SEARCH MAY NOT BE
JUSTIFIED.  /8/  AND IF CIRCUMSTANCES CAN JUSTIFY THE WARRANTLESS
ARREST, IT WOULD BE STRANGE TO SAY THAT THE FOURTH AMENDMENT BARS THE
WARRANTLESS SEARCH, REGARDLESS OF THE CIRCUMSTANCES, SINCE THE INVASION
AND DISRUPTION OF A MAN'S LIFE AND PRIVACY WHICH STEM FROM HIS ARREST
ARE ORDINARILY FAR GREATER THAN THE RELATIVELY MINOR INTRUSIONS
ATTENDING A SEARCH OF HIS PREMISES. 

CONGRESS HAS EXPRESSLY AUTHORIZED A WIDE RANGE OF OFFICIALS TO MAKE
ARRESTS WITHOUT ANY WARRANT IN CRIMINAL CASES.  UNITED STATES MARSHALS
HAVE LONG HAD THIS POWER, /9/  WHICH IS ALSO VESTED IN THE AGENTS OF
THE FEDERAL BUREAU OF INVESTIGATION, /10/  AND IN THE SECRET SERVICE
/11/  AND THE NARCOTICS LAW ENFORCEMENT AGENCY.  /12/  THAT WARRANTLESS
ARREST POWER MAY APPLY EVEN WHEN THERE IS TIME TO GET A WARRANT WITHOUT
FEAR THAT THE SUSPECT MAY ESCAPE IS MADE PERFECTLY CLEAR BY THE
LEGISLATIVE HISTORY OF THE STATUTE GRANTING ARREST POWER TO THE FBI. 

IN UNITED STATES V. COPLON, 185 F.2D 629, 633-636 (C.A. 2D CIR.
1950), THE COURT HELD THAT AN ARREST AND SEARCH WERE INVALID BECAUSE
THERE WAS AN INSUFFICIENT SHOWING OF DANGER OF ESCAPE, AND THEREFORE
THERE WAS TIME TO OBTAIN A WARRANT.  THE OPINION, WRITTEN BY JUDGE
LEARNED HAND AND JOINED BY JUDGES SWAN AND FRANK, REVIEWED THE COMMON
LAW POWER OF ARREST, WHICH PERMITTED ARRESTS FOR FELONIES COMMITTED IN
THE PAST "IF (THE OFFICER) HAD REASONABLE GROUND TO SUPPOSE THAT THE
PERSON ARRESTED HAD COMMITTED THE FELONY."  HOWEVER, THE COURT
CONCLUDED THAT THIS POWER OF WARRANTLESS ARREST HAD BEEN LIMITED BY THE
CONGRESSIONAL REQUIREMENT THAT THERE MUST BE A "LIKELIHOOD OF THE
PERSON ESCAPING BEFORE A WARRANT CAN BE OBTAINED FOR HIS ARREST." 

THE NEXT MONTH THE CONGRESS WAS MOVED BY THIS VERY DECISION TO AMEND
THE LAW, CONSCIOUSLY DELETING THE LANGUAGE UPON WHICH JUDGE HAND HAD
RELIED SO AS TO MAKE IT CLEAR THAT WARRANTLESS ARRESTS WERE AUTHORIZED
EVEN IF THERE WAS TIME TO PROCURE A WARRANT.  ACT OF JANUARY 10, 1951,
C. 1221, SEC. 1, 64 STAT. 1239; H.R. REP. NO. 3228, 81ST CONG., 2D
SESS. (1950).  /13/  THEREUPON, THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT, PASSING ON THE VERY SAME ARREST WHICH HAD INDUCED
THE CONGRESSIONAL ACTION, HELD THAT THIS "UNMISTAKABLE" REVISION MADE
IT CLEAR THAT THERE WAS IN THE FBI A POWER TO ARREST WITHOUT WARRANT
EVEN WHEN THERE WAS TIME TO PROCURE ONE.  FOR THIS REASON, THE COURT
UPHELD THE ARREST AND CONTEMPORANEOUS SEARCH.  COPLON V. UNITED STATES,
89 U.S.APP.D.C. 103, 191 F.2D 749 (1951).  CERTIORARI WAS DENIED IN
BOTH COPLON CASES.  342 U.S. 920, 926 (1952).  MOREOVER, THE STATUTE
UNDER WHICH THE FBI EXERCISES THAT POWER WAS LATER SAID BY THIS COURT
TO STATE THE CONSTITUTIONAL STANDARD, HENRY V. UNITED STATES, 361 U.S.
98, 100 (1959), SINCE IT REQUIRES "REASONABLE GROUNDS TO BELIEVE THAT
THE PERSON TO BE ARRESTED HAS COMMITTED OR IS COMMITTING" A FELONY, 18
U.S.C. 3052, BEFORE A WARRANTLESS ARREST MAY BE MADE.  AND THE COURT
TODAY HAS DECLINED TO REVIEW A WARRANTLESS ARREST UNDER THE NARCOTICS
AGENT STATUTE.  JAMISON V. UNITED STATES POST, P. 986.  SEE ALSO MY
DISSENT IN SHIPLEY V. CALIFORNIA, POST, P. 821. 

THE JUDGMENT OF CONGRESS IS THAT FEDERAL LAW ENFORCEMENT OFFICERS
MAY REASONABLY MAKE WARRANTLESS ARRESTS UPON PROBABLE CAUSE, AND NO
JUDICIAL EXPERIENCE SUGGESTS THAT THIS JUDGMENT IS INFIRM.  INDEED,
PAST CASES SUGGEST PRECISELY THE CONTRARY CONCLUSION.  THE VALIDITY OF
FEDERAL ARRESTS WAS LONG GOVERNED BY STATE LAW, UNITED STATES, V. DI
RE, 332 U.S. 581, 589-592 (1948), AND NO REQUIREMENT THAT WARRANTS BE
SOUGHT WHENEVER THERE IS TIME TO DO SO WAS IMPOSED EITHER BY COMMON-LAW
HISTORY /14/  OR BY DECISIONS OF THIS COURT.  THIS COURT HAS UPHELD AN
EXECUTIVE ARREST WARRANT FOR DEPORTATION, PERMITTING THE ARREST TO
OCCUR WITHOUT PRIOR JUDICIAL SCRUTINY, ABEL V. UNITED STATES, 362 U.S.
217 (1960).  AND THIS COURT HAS REGULARLY AFFIRMED THE VALIDITY OF
WARRANTLESS ARRESTS WITHOUT ANY INDICATION WHATEVER THAT THERE WAS NO
TIME TO GET A WARRANT, AND INDEED WHERE ALL THE CIRCUMSTANCES POINTED
TO THE OPPOSITE CONCLUSION.  E.G., KER V. CALIFORNIA, 374 U.S. 23
(1963); DRAPER V. UNITED STATES, 358 U.S. 307 (1959).  THE LOWER
FEDERAL COURTS HAVE CERTAINLY BEEN OF THE VIEW THAT WARRANTS ARE
UNNECESSARY EVEN WHERE THERE IS TIME TO OBTAIN THEM.  DAILEY V. UNITED
STATES, 261 F.2D 870 (C.A. 5TH CIR. 1958), CERT. DENIED, 359 U.S. 969
(1959) (STATUTORY WARRANTLESS ARREST BY FEDERAL NARCOTICS AGENTS);
SMITH V. UNITED STATES, 103 U.S.APP.D.C. 48, 52, 254 F.2D 751, 755,
CERT. DENIED, 357 U.S. 937 (1958); MILLS V. UNITED STATES, 90
U.S.APP.D.C. 365, 196 F.2D 600, CERT. DENIED, 344 U.S. 826 (1952) (SUB
SILENTIO). 

IN LIGHT OF THE UNIFORMITY OF JUDGMENT OF THE CONGRESS, PAST
JUDICIAL DECISIONS, AND COMMON PRACTICE REJECTING THE PROPOSITION THAT
ARREST WARRANTS ARE ESSENTIAL WHEREVER IT IS PRACTICABLE TO GET THEM,
THE CONCLUSION IN INEVITABLE THAT SUCH ARRESTS AND ACCOMPANYING
SEARCHES ARE REASONABLE, AT LEAST UNTIL EXPERIENCE TEACHES THE
CONTRARY.  IT MUST VERY OFTEN BE THE CASE THAT BY THE TIME PROBABLE
CAUSE TO ARREST A MAN IS ACCUMULATED, THE MAN IS AWARE OF POLICE
INTEREST IN HIM OR FOR OTHER GOOD REASONS IS ON THE VERGE OF FLIGHT. 
MOREOVER, IT WILL LIKELY BE VERY DIFFICULT TO DETERMINE THE PROBABILITY
OF HIS FLIGHT.  GIVEN THIS SITUATION, IT MAY BE BEST IN ALL CASES
SIMPLY TO ALLOW THE ARREST IF THERE IS PROBABLE CAUSE, ESPECIALLY SINCE
THAT ISSUE CAN BE DETERMINED VERY SHORTLY AFTER THE ARREST. 

NOR ARE THE STATED ASSUMPTIONS AT ALL FANCIFUL.  IT WAS PRECISELY
THESE FACTS WHICH MOVED THE CONGRESS TO GRANT TO THE FBI THE POWER TO
ARREST WITHOUT A WARRANT WITHOUT ANY SHOWING OF PROBABILITY OF FLIGHT. 
BOTH THE SENATE AND HOUSE COMMITTEES QUOTED THE LETTER OF THE ACTING
DEPUTY ATTORNEY GENERAL, PETER CAMPBELL BROWN, WHO IN ASKING FOR THE
NEW LEGISLATION ASSERTED:  "ALTHOUGH IT IS RECOGNIZED THAT IN ANY
FELONY CASE THE PERSON TO BE ARRESTED MAY ATTEMPT TO FLEE, IT IS ALSO
RECOGNIZED THAT IN ANY SUCH CASE IN WHICH THE DEFENDANT IS ARRESTED
WITHOUT A WARRANT IN AN EMERGENCY SITUATION, SUCH DEFENDANT MAY BE ABLE
TO PRESENT A RATHER CONVINCING ARGUMENT THAT HE DID NOT INTEND TO
FLEE."  S. REP. NO. 2464, 81ST CONG., 2D SESS., 2 (1950); H.R. REP. NO.
3228, 81ST CONG., 2D SESS., 2 (1950).  SOME WEIGHT SHOULD BE ACCORDED
THIS FACTUAL JUDGMENT BY LAW ENFORCEMENT OFFICIALS, ADOPTED BY THE
CONGRESS. 

        IV. 

IF CIRCUMSTANCES SO OFTEN REQUIRE THE WARRANTLESS ARREST THAT THE
LAW GENERALLY PERMITS IT, THE TYPICAL SITUATION WILL FIND THE ARRESTING
OFFICERS LAWFULLY ON THE PREMISES WITHOUT ARREST OR SEARCH WARRANT. 
LIKE THE MAJORITY, I WOULD PERMIT THE POLICE TO SEARCH THE PERSON OF A
SUSPECT AND THE AREA UNDER HIS IMMEDIATE CONTROL EITHER TO ASSURE THE
SAFETY OF THE OFFICERS OR TO PREVENT THE DESTRUCTION OF EVIDENCE.  AND
LIKE THE MAJORITY, I SEE NOTHING IN THE ARREST ALONE FURNISHING
PROBABLE CAUSE FOR A SEARCH OF ANY BROADER SCOPE.  HOWEVER, WHERE AS
HERE THE EXISTENCE OF PROBABLE CAUSE IS INDEPENDENTLY ESTABLISHED AND
WOULD JUSTIFY A WARRANT FOR A BROADER SEARCH FOR EVIDENCE, I WOULD
FOLLOW PAST CASES AND PERMIT SUCH A SEARCH TO BE CARRIED OUT WITHOUT A
WARRANT, SINCE THE FACT OF ARREST SUPPLIES AN EXIGENT CIRCUMSTANCE
JUSTIFYING POLICE ACTION BEFORE THE EVIDENCE CAN BE REMOVED, AND ALSO
ALERTS THE SUSPECT TO THE FACT OF THE SEARCH SO THAT HE CAN IMMEDIATELY
SEEK JUDICIAL DETERMINATION OF PROBABLE CAUSE IN AN ADVERSARY
PROCEEDING, AND APPROPRIATE REDRESS. 

THIS VIEW, CONSISTENT WITH PAST CASES, WOULD NOT AUTHORIZE THE
GENERAL SEARCH AGAINST WHICH THE FOURTH AMENDMENT WAS MEANT TO GUARD,
NOR WOULD IT BROADEN OR RENDER UNCERTAIN IN ANY WAY WHATSOEVER THE
SCOPE OF SEARCHES PERMITTED UNDER THE FOURTH AMENDMENT.  THE ISSUE IN
THIS CASE IS NOT THE BREADTH OF THE SEARCH, SINCE THERE WAS CLEARLY
PROBABLE CAUSE FOR THE SEARCH WHICH WAS CARRIED OUT.  NO BROADER SEARCH
THAN IF THE OFFICERS HAD A WARRANT WOULD BE PERMITTED.  THE ONLY ISSUE
IS WHETHER A SEARCH WARRANT WAS REQUIRED AS A PRECONDITION TO THAT
SEARCH.  IT IS AGREED THAT SUCH A WARRANT WOULD BE REQUIRED ABSENT
EXIGENT CIRCUMSTANCES.  /15/  I WOULD HOLD THAT THE FACT OF ARREST
SUPPLIES SUCH AN EXIGENT CIRCUMSTANCE, SINCE THE POLICE HAD LAWFULLY
GAINED ENTRY TO THE PREMISES TO EFFECT THE ARREST AND SINCE DELAYING
THE SEARCH TO SECURE A WARRANT WOULD HAVE INVOLVED THE RISK OF NOT
RECOVERING THE FRUITS OF THE CRIME. 

THE MAJORITY TODAY PROSCRIBES SEARCHES FOR WHICH THERE IS PROBABLE
CAUSE AND WHICH MAY PROVE FRUITLESS UNLESS CARRIED OUT IMMEDIATELY. 
THIS RULE WILL HAVE NO ADDED EFFECT WHATSOEVER IN PROTECTING THE RIGHTS
OF THE CRIMINAL ACCUSED AT TRIAL AGAINST INTRODUCTION OF EVIDENCE
SEIZED WITHOUT PROBABLE CAUSE.  SUCH EVIDENCE COULD NOT BE INTRODUCED
UNDER THE OLD RULE.  NOR DOES THE MAJORITY TODAY GIVE ANY ADDED
PROTECTION TO THE RIGHT OF PRIVACY OF THOSE WHOSE HOUSES THERE IS
PROBABLE CAUSE TO SEARCH.  A WARRANT WOULD STILL BE SWORN OUT FOR THOSE
HOUSES, AND THE PRIVACY OF THEIR OWNERS INVADED.  THE ONLY POSSIBLE
JUSTIFICATION FOR THE MAJORITY'S RULE IS THAT IN SOME INSTANCES
ARRESTING OFFICERS MAY SEARCH WHEN THEY HAVE NO PROBABLE CAUSE TO DO SO
AND THAT SUCH UNLAWFUL SEARCHES MIGHT BE PREVENTED IF THE OFFICERS
FIRST SOUGHT A WARRANT FROM A MAGISTRATE.  AGAINST THE POSSIBLE
PROTECTION OF PRIVACY IN THAT CLASS OF CASES, IN WHICH THE PRIVACY OF
THE HOUSE HAS ALREADY BEEN INVADED BY ENTRY TO MAKE THE ARREST-- AN
ENTRY FOR WHICH THE MAJORITY DOES NOT ASSERT THAT ANY WARRANT IS
NECESSARY-- MUST BE WEIGHED THE RISK OF DESTRUCTION OF EVIDENCE FOR
WHICH THERE IS PROBABLE CAUSE TO SEARCH, AS A RESULT OF DELAYS IN
OBTAINING A SEARCH WARRANT.  WITHOUT MORE BASIS FOR RADICAL CHANGE THAN
THE COURT'S OPINION REVEALS, I WOULD NOT UPSET THE BALANCE OF THESE
INTERESTS WHICH HAS BEEN STRUCK BY THE FORMER DECISIONS OF THIS COURT. 

IN CONSIDERING SEARCHES INCIDENT TO ARREST, IT MUST BE REMEMBERED
THAT THERE WILL BE IMMEDIATE OPPORTUNITY TO CHALLENGE THE PROBABLE
CAUSE FOR THE SEARCH IN AN ADVERSARY PROCEEDING.  THE SUSPECT HAS BEEN
APPRISED OF THE SEARCH BY HIS VERY PRESENCE AT THE SCENE, AND HAVING
BEEN ARRESTED, HE WILL SOON BE BROUGHT INTO CONTACT WITH PEOPLE WHO CAN
EXPLAIN HIS RIGHTS.  AS MR. JUSTICE BRENNAN NOTED IN A DISSENTING
OPINION, JOINED BY THE CHIEF JUSTICE AND JUSTICES BLACK AND DOUGLAS, IN
ABEL V. UNITED STATES, 362 U.S. 217, 249-250 (1960), A SEARCH
CONTEMPORANEOUS WITH A WARRANTLESS ARREST IS SPECIALLY SAFEGUARDED
SINCE "(SUCH AN ARREST MAY CONSTITUTIONALLY BE MADE ONLY UPON PROBABLE
CAUSE, THE EXISTENCE OF WHICH IS SUBJECT TO JUDICIAL EXAMINATION, SEE
HENRY V. UNITED STATES, 361 U.S. 98, 100; AND SUCH AN ARREST DEMANDS
THE PROMPT BRINGING OF THE PERSON ARRESTED BEFORE A JUDICIAL OFFICER,
WHERE THE EXISTENCE OF PROBABLE CAUSE IS TO BE INQUIRED INTO.  FED.
RULES CRIM. PROC. 5(A) AND (C) . . . . MALLORY V. UNITED STATES, 354
U.S. 449; MCNABB V. UNITED STATES, 318 U.S. 332."  AND SINCE THAT TIME
THE COURT HAS IMPOSED ON STATE AND FEDERAL OFFICERS ALIKE THE DUTY TO
WARN SUSPECTS TAKEN INTO CUSTODY, BEFORE QUESTIONING THEM, OF THEIR
RIGHT TO A LAWYER.  MIRANDA V. ARIZONA, 384 U.S. 436 (1966); OROZCO V.
TEXAS, 394 U.S. 324 (1969). 

AN ARRESTED MAN, BY DEFINITION CONSCIOUS OF THE POLICE INTEREST IN
HIM, AND PROVIDED ALMOST IMMEDIATELY WITH A LAWYER AND A JUDGE, IS IN
AN EXCELLENT POSITION TO DISPUTE THE REASONABLENESS OF HIS ARREST AND
CONTEMPORANEOUS SEARCH IN A FULL ADVERSARY PROCEEDING.  I WOULD UPHOLD
THE CONSTITUTIONALITY OF THIS SEARCH CONTEMPORANEOUS WITH AN ARREST
SINCE THERE WERE PROBABLE CAUSE BOTH FOR THE SEARCH AND FOR THE ARREST,
EXIGENT CIRCUMSTANCES INVOLVING THE REMOVAL OR DESTRUCTION OF EVIDENCE,
AND SATISFACTORY OPPORTUNITY TO DISPUTE THE ISSUES OF PROBABLE CAUSE
SHORTLY THEREAFTER.  IN THIS CASE, THE SEARCH WAS REASONABLE. 

/1/  MURDOCK V. PENNSYLVANIA, 319 U.S. 105 (1943), OVERRULED JONES
V. OPELIKA, 316 U.S. 584 (1942); LEGAL TENDER CASES, 12 WALL.  457
(1871), OVERRULED HEPBURN V. GRISWOLD, 8 WALL.  603 (1870). 

/2/  THE MAJORITY CITES KREMEN V. UNITED STATES, 353 U.S. 346
(1957), AS SUGGESTING AN INCONSISTENCY.  THERE, HOWEVER, IN A PER
CURIAM OPINION THE COURT MERELY OVERTURNED A GENERAL SEARCH IN WHICH
THE ENTIRE CONTENTS OF A CABIN, WHICH IT TOOK 11 PAGES OF FINE PRINT
FOR THE COURT TO INVENTORY, WERE SEIZED.  SEE ABEL V. UNITED STATES,
362 U.S. 217, 239 (1960) (KREMEN DISTINGUISHED AS A "MASS SEIZURE"). 

/3/  EVEN MR. JUSTICE FRANKFURTER, JOINED IN DISSENT IN RABINOWITZ
BY MR. JUSTICE JACKSON, ADMITTED THAT THERE WAS AN EXCEPTION TO THE
SEARCH-WARRANT REQUIREMENT IN CASES OF NECESSITY, AND NOTED THAT THIS
APPLIED, FOR EXAMPLE, TO VEHICLES WHICH COULD READILY BE MOVED.  339
U.S. 56, AT 73. 

/4/  BEFORE THE BURGLARY OF THE COIN STORE, PETITIONER HAD TOLD ITS
OWNER THAT HE WAS PLANNING A BIG ROBBERY, HAD INQUIRED ABOUT THE ALARM
SYSTEM IN THE STORE, THE STATE OF THE OWNER'S INSURANCE, AND THE
LOCATION OF THE OWNER'S MOST VALUABLE COINS.  PETITIONER WANDERED ABOUT
THE STORE THE DAY BEFORE THE BURGLARY.  AFTER THE BURGLARY, PETITIONER
CALLED THE STORE'S OWNER AND ACCUSED HIM OF ROBBING THE STORE HIMSELF
FOR THE INSURANCE PROCEEDS ON A POLICY WHICH, AS PETITIONER KNEW, HAD
JUST BEEN REDUCED FROM $50,000 TO $10,000 COVERAGE.  ON BEING TOLD THAT
THE ROBBERY HAD BEEN SLOPPY, PETITIONER EXCITEDLY CLAIMED THAT IT HAD
BEEN "REAL PROFESSIONAL" BUT THEN DENIED THE ROBBERY.  ON THE NIGHT OF
THE ROBBERY ITSELF PETITIONER DECLINED AN INVITATION TO A BICYCLE RIDE,
SAYING HE WAS "GOING TO KNOCK OVER A PLACE" AND THAT A COIN SHOP WAS
"ALL SET."  AFTER THE ROBBERY, HE TOLD THE SAME NEIGHBOR THAT HE HAD
STARTED TO BREAK INTO THE COIN SHOP, BUT HAD STOPPED, AND THEN DENIED
THE WHOLE INCIDENT.  THE NEIGHBOR HAD EARLIER SEEN STACKS OF
TYPEWRITERS IN PETITIONER'S HOUSE.  ASKED WHETHER THEY WERE "HOT"
PETITIONER REPLIED, "HOTTER THAN A $3 BILL."  ON READING A NEWSPAPER
DESCRIPTION OF THE COIN STORE BURGLARY, THE NEIGHBOR CALLED THE
POLICE. 

/5/  THERE WERE THREE OFFICERS AT THE SCENE OF THE ARREST, ONE FROM
THE CITY WHERE THE COIN BURGLARY HAD OCCURRED, AND TWO FROM THE CITY
WHERE THE ARREST WAS MADE.  ASSUMING THAT ONE POLICEMAN FROM EACH CITY
WOULD BE NEEDED TO BRING THE PETITIONER IN AND OBTAIN A SEARCH WARRANT,
ONE POLICEMAN COULD HAVE BEEN LEFT TO GUARD THE HOUSE.  HOWEVER, IF HE
NOT ONLY COULD HAVE REMAINED IN THE HOUSE AGAINST PETITIONER'S WIFE'S
WILL, BUT FOLLOWED HER ABOUT TO ASSURE THAT NO EVIDENCE WAS BEING
TAMPERED WITH, THE INVASION OF HER PRIVACY WOULD BE ALMOST AS GREAT AS
THAT ACCOMPANYING AN ACTUAL SEARCH.  MOREOVER, HAD THE WIFE SUMMONED AN
ACCOMPLICE, ONE OFFICER COULD NOT HAVE WATCHED THEM BOTH. 

/6/  A SECOND ARREST AND SEARCH OF PETITIONER'S HOUSE OCCURRED THREE
DAYS LATER.  IT RELATES TO AN ENTIRELY SEPARATE ROBBERY OF WHICH
PETITIONER WAS SEPARATELY CONVICTED AND FOR WHICH HE WAS CONCURRENTLY
SENTENCED.  SINCE NO EVIDENCE WAS SEIZED IN THE SECOND SEARCH, AND
SINCE IT DID NOT IN ANY WAY AFFECT PETITIONER'S TRIAL SO FAR AS THE
RECORD DISCLOSES, THERE IS NO OCCASION TO CONSIDER ITS PROPRIETY. 

/7/  AN ARREST WARRANT WAS IN FACT ISSUED, BUT IT WAS ISSUED ON AN
INADEQUATE SUPPORTING AFFIDAVIT AND WAS THEREFORE INVALID, SO THAT THE
CASE MUST BE CONSIDERED AS THOUGH NO WARRANT HAD BEEN ISSUED. 

/8/  THIS IN TURN ASSUMES THAT WHERE IT IS PRACTICABLE TO OBTAIN A
SEARCH WARRANT AND THE SEARCH IS NOT CONTEMPORANEOUS WITH AN ARREST, A
WARRANT MUST BE OBTAINED TO VALIDATE THE SEARCH.  THIS IS THE HOLDING
OF PAST CASES AND I DO NOT QUESTION IT. 

/9/  ACT OF JUNE 15, 1935, C. 259, SEC. 2, 49 STAT. 378, AS AMENDED,
18 U.S.C. 3053. 

/10/  ACT OF JUNE 18, 1934, C. 595, 48 STAT. 1008, AS AMENDED, 18
U.S.C. 3052. 

/11/  ACT OF SEPT. 29, 1965, 79 STAT. 890, AS AMENDED, 18 U.S.C.
3056 (1964 ED., SUPP. IV). 

/12/  ACT OF JULY 18, 1956, AS AMENDED, TIT. I, SEC. 104(A), 70
STAT. 570, 26 U.S.C. 7606(2). 

/13/  CONGRESS' EXPEDITION WAS POSSIBLE PARTLY BECAUSE THE SAME
CHANGE HAD EARLIER BEEN APPROVED BY A SENATORIAL COMMITTEE.  S. REP.
NO. 2464, 81ST CONG., 2D SESS. (1950). 

/14/  THERE WAS NO DISPUTE BETWEEN THE TWO COPLON COURTS ON THIS
POINT, SINCE IT WAS WELL ESTABLISHED THAT EVEN A PRIVATE PERSON COULD
MAKE A WARRANTLESS ARREST AT COMMON LAW FOR A FELONY WHICH HAD ACTUALLY
BEEN COMMITTED, AND A PEACE OFFICER COULD MAKE SUCH AN ARREST IF HE HAD
REASONABLE CAUSE TO BELIEVE THE OFFENSE HAD BEEN COMMITTED.  1 J.
STEPHEN, A. HISTORY OF THE CRIMINAL LAW OF ENGLAND 193 (1883); 2 M.
HALE, PLEAS OF THE CROWN 71-104 (FIRST AMERICAN ED. 1847). 

/15/  A SEARCH WITHOUT A WARRANT "CAN SURVIVE CONSTITUTIONAL
INHIBITION ONLY UPON A SHOWING THAT THE SURROUNDING FACTS BROUGHT IT
WITHIN ONE OF THE EXCEPTIONS TO THE RULE THAT A SEARCH MUST REST UPON A
SEARCH WARRANT.  JONES V. UNITED STATES, 357 U.S. 493, 499; UNITED
STATES V. JEFFERS, 342 U.S. 48, 51."  RIOS V. UNITED STATES, 364 U.S.
253, 261 (1960); STONER V. CALIFORNIA, 376 U.S. 483, 486 (1964).  AND
"A SEARCH CAN BE INCIDENT TO AN ARREST ONLY IF IT IS SUBSTANTIALLY
CONTEMPORANEOUS WITH THE ARREST AND IS CONFINED TO THE IMMEDIATE
VICINITY OF THE ARREST.  AGNELLO V. UNITED STATES, 269 U.S. 20." 
STONER V. CALIFORNIA, SUPRA, AT 486; JAMES V. LOUISIANA, 382 U.S. 36,
37 (1965).  THERE IS THUS NO QUESTION THAT A WARRANT TO SEARCH
PETITIONER'S HOUSE WOULD HAVE BEEN REQUIRED HAD HE NOT BEEN ARRESTED
THERE.  IN SUCH CASES, THE OFFICERS ARE NOT ALREADY LAWFULLY ON THE
PREMISES, AND THERE IS NOT SO OFTEN THE SAME RISK OF THE DESTRUCTION OF
EVIDENCE NOR THE NECESSITY TO MAKE AN IMMEDIATE SEARCH WITHOUT THE
DELAY INVOLVED IN SECURING A WARRANT. 

KEITH C. MONROE, BY APPOINTMENT OF THE COURT, 394 U.S. 940, ARGUED
THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

RONALD M. GEORGE, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL. 
..END :

















BENTON V. MARYLAND, 395 U.S. 784 


       BENTON V. MARYLAND. 

        CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND. 

        NO. 201.  ARGUED DECEMBER 12, 1968.-- REARGUED MARCH 24,

1969.-- DECIDED JUNE 23, 1969. 


PETITIONER WAS TRIED IN A MARYLAND STATE COURT FOR BURGLARY AND
LARCENY.  HE WAS ACQUITTED OF LARCENY BUT CONVICTED OF BURGLARY AND
SENTENCED TO 10 YEARS IN PRISON.  BECAUSE THE GRAND AND PETIT JURIES IN
PETITIONER'S CASE HAD BEEN SELECTED UNDER AN INVALID CONSTITUTIONAL
PROVISION, THE CASE WAS REMANDED TO THE TRIAL COURT AND PETITIONER WAS
GIVEN, AND EXERCISED, THE OPTION OF DEMANDING RE-INDICTMENT AND
RETRIAL.  RE-INDICTED FOR LARCENY AND BURGLARY, PETITIONER FILED, ON
THE GROUND OF DOUBLE JEOPARDY, A MOTION TO DISMISS THE LARCENY COUNT
WHICH THE TRIAL COURT DENIED.  ON RETRIAL HE WAS FOUND GUILTY OF BOTH
OFFENSES, AND CONCURRENTLY SENTENCED TO 15 YEARS FOR BURGLARY AND 5
YEARS FOR LARCENY.  THE APPELLATE COURT RULED AGAINST PETITIONER ON THE
DOUBLE JEOPARDY ISSUE AND AFFIRMED.  HELD: 

1.  THE CONCURRENT SENTENCE DOCTRINE ENUNCIATED IN HIRABAYASHI V.
UNITED STATES, 320 U.S. 81, 105, DOES NOT CONSTITUTE A JURISDICTIONAL
BAR TO THIS COURT'S DECIDING PETITIONER'S CHALLENGE TO HIS LARCENY
CONVICTION, SINCE THE POSSIBILITIES OF ADVERSE COLLATERAL EFFECTS TO
HIM FROM THAT CONVICTION GIVE THE CASE AN ADVERSARY CAST AND MAKE IT
JUSTICIABLE.  PP. 787-791. 

2.  REGARDLESS OF WHETHER THE CONCURRENT SENTENCE DOCTRINE SURVIVES
AS A RULE OF JUDICIAL CONVENIENCE, THE DOCTRINE IS INAPPLICABLE HERE
SINCE THE MARYLAND APPELLATE COURT DECIDED NOT TO APPLY THE DOCTRINE
AND UPHELD THE LARCENY CONVICTION DESPITE PETITIONER'S DOUBLE JEOPARDY
CONTENTION, AND SINCE THE STATUS OF PETITIONER'S BURGLARY CONVICTION IS
STILL IN SOME DOUBT.  PP. 791-793. 

3.  THE DOUBLE JEOPARDY PROHIBITION OF THE FIFTH AMENDMENT, A
FUNDAMENTAL IDEAL IN OUR CONSTITUTIONAL HERITAGE, IS ENFORCEABLE
AGAINST THE STATES THROUGH THE FOURTEENTH AMENDMENT.  PALKO V.
CONNECTICUT, 302 U.S. 319, OVERRULED.  PP. 793-796. 

4.  PETITIONER'S LARCENY CONVICTION CANNOT STAND, SINCE
"(CONDITIONING AN APPEAL ON ONE OFFENSE ON A COERCED SURRENDER OF A
VALID PLEA OF FORMER JEOPARDY ON ANOTHER OFFENSE EXACTS A FORFEITURE IN
PLAIN CONFLICT WITH THE CONSTITUTIONAL BAR AGAINST DOUBLE JEOPARDY." 
GREEN V. UNITED STATES, 355 U.S. 184, 193-194.  PP. 796-797. 

5.  THE QUESTION RAISED BY PETITIONER THAT PREJUDICIAL ERROR
RESULTED FROM THE ADMISSION AT HIS TRIAL FOR BOTH BURGLARY AND LARCENY
OF SOME EVIDENCE THAT STATE LAW MADE INADMISSIBLE IN A TRIAL FOR
BURGLARY ALONE WAS NOT DECIDED BY THE MARYLAND APPELLATE COURT AND
SHOULD NOW BE CONSIDERED BY THAT COURT.  PP. 797-798. 

1 MD.APP.  647, 232 A.2D 541, VACATED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

IN AUGUST 1965, PETITIONER WAS TRIED IN A MARYLAND STATE COURT ON
CHARGES OF BURGLARY AND LARCENY.  THE JURY FOUND PETITIONER NOT GUILTY
OF LARCENY BUT CONVICTED HIM ON THE BURGLARY COUNT.  HE WAS SENTENCED
TO 10 YEARS IN PRISON.  SHORTLY AFTER HIS NOTICE OF APPEAL WAS FILED IN
THE MARYLAND COURT OF APPEALS, THAT COURT HANDED DOWN ITS DECISION IN
THE CASE OF SCHOWGUROW V. STATE, 240 MD. 121, 213 A.2D 475 (1965).  IN
SCHOWGUROW THE MARYLAND COURT OF APPEALS STRUCK DOWN A SECTION OF THE
STATE CONSTITUTION WHICH REQUIRED JURORS TO SWEAR THEIR BELIEF IN THE
EXISTENCE OF GOD.  AS A RESULT OF THIS DECISION, PETITIONER'S CASE WAS
REMANDED TO THE TRIAL COURT.  BECAUSE BOTH THE GRAND AND PETIT JURIES
IN PETITIONER'S CASE HAD BEEN SELECTED UNDER THE INVALID CONSTITUTIONAL
PROVISION, PETITIONER WAS GIVEN THE OPTION OF DEMANDING RE-INDICTMENT
AND RETRIAL.  HE CHOSE TO HAVE HIS CONVICTION SET ASIDE, AND A NEW
INDICTMENT AND NEW TRIAL FOLLOWED.  AT THIS SECOND TRIAL, PETITIONER
WAS AGAIN CHARGED WITH BOTH LARCENY AND BURGLARY.  PETITIONER OBJECTED
TO RETRIAL ON THE LARCENY COUNT, ARGUING THAT BECAUSE THE FIRST JURY
HAD FOUND HIM NOT GUILTY OF LARCENY, RETRIAL WOULD VIOLATE THE
CONSTITUTIONAL PROHIBITION AGAINST SUBJECTING PERSONS TO DOUBLE
JEOPARDY FOR THE SAME OFFENSE.  THE TRIAL JUDGE DENIED PETITIONER'S
MOTION TO DISMISS THE LARCENY CHARGE, AND PETITIONER WAS TRIED FOR BOTH
LARCENY AND BURGLARY.  THIS TIME THE JURY FOUND PETITIONER GUILTY OF
BOTH OFFENSES, AND THE JUDGE SENTENCED HIM TO 15 YEARS ON THE BURGLARY
COUNT /1/  AND 5 YEARS FOR LARCENY, THE SENTENCES TO RUN CONCURRENTLY. 
ON APPEAL TO THE NEWLY CREATED MARYLAND COURT OF SPECIAL APPEALS,
PETITIONER'S DOUBLE JEOPARDY CLAIM WAS REJECTED ON THE MERITS.  1
MD.APP.  647, 232 A.2D 541 (1967).  THE COURT OF APPEALS DENIED
DISCRETIONARY REVIEW. 

ON THE LAST DAY OF LAST TERM, WE GRANTED CERTIORARI, 392 U.S. 925
(1968), BUT LIMITED THE WRIT TO THE CONSIDERATION OF TWO ISSUES: 

     "(1) IS THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT

  APPLICABLE TO THE STATES THROUGH THE FOURTEENTH AMENDMENT? 

     "(2) IF SO, WAS THE PETITIONER 'TWICE PUT IN JEOPARDY' IN THIS
CASE?"  AFTER ORAL ARGUMENT, IT BECAME CLEAR THAT THE EXISTENCE OF A
CONCURRENT SENTENCE ON THE BURGLARY COUNT MIGHT PREVENT THE COURT FROM
REACHING THE DOUBLE JEOPARDY ISSUE, AT LEAST IF WE FOUND THAT ANY ERROR
AFFECTED ONLY PETITIONER'S LARCENY CONVICTION.  THEREFORE, WE SCHEDULED
THE CASE FOR REARGUMENT, 393 U.S. 994 (1968), LIMITED TO THE FOLLOWING
ADDITIONAL QUESTION NOT INCLUDED IN THE ORIGINAL WRIT: 

"DOES THE 'CONCURRENT SENTENCE DOCTRINE,' ENUNCIATED IN

HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 105, AND SUBSEQUENT

  CASES, HAVE CONTINUING VALIDITY IN LIGHT OF SUCH DECISIONS AS

  GINSBERG V. NEW YORK, 390 U.S. 629, 633, N. 2, PEYTON V. ROWE,

  392 U.S. 54, CARAFAS V. LAVALLEE, 391 U.S. 234, 237-238, AND

  SIBRON V. NEW YORK, 392 U.S. 40, 50-58?" 

THE SOLICITOR GENERAL WAS INVITED TO FILE A BRIEF EXPRESSING THE
VIEWS OF THE UNITED STATES AND TO PARTICIPATE IN ORAL ARGUMENT. 

AFTER CONSIDERATION OF ALL THE QUESTIONS BEFORE US, WE FIND NO BAR
TO OUR DECISION OF THE DOUBLE JEOPARDY ISSUE.  ON THE MERITS, WE HOLD
THAT THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT IS APPLICABLE TO
THE STATES THROUGH THE FOURTEENTH AMENDMENT, AND WE REVERSE
PETITIONER'S CONVICTION FOR LARCENY. 

        I. 

AT THE OUTSET OF THIS CASE WE ARE CONFRONTED WITH A JURISDICTIONAL
PROBLEM.  IF THE ERROR SPECIFIED IN THE ORIGINAL WRIT OF CERTIORARI
WERE FOUND TO AFFECT ONLY PETITIONER'S LARCENY CONVICTION, /2/
REVERSAL OF THAT CONVICTION WOULD NOT REQUIRE THE STATE TO CHANGE THE
TERMS OF PETITIONER'S CONFINEMENT.  WHATEVER THE STATUS OF HIS SENTENCE
ON THE LARCENY CONVICTION, PETITIONER WOULD PROBABLY STAY IN PRISON
UNTIL HE HAD SERVED OUT HIS SENTENCE FOR BURGLARY.  /3/  IS THERE, IN
THESE CIRCUMSTANCES, A LIVE "CASE" OR "CONTROVERSY" SUITABLE FOR
RESOLUTION BY THIS COURT, OR IS THE ISSUE MOOT?  IS PETITIONER ASKING
FOR AN ADVISORY OPINION ON AN ABSTRACT OR HYPOTHETICAL QUESTION?  THE
ANSWER TO THESE QUESTIONS IS CRUCIAL, FOR IT IS WELL SETTLED THAT
FEDERAL COURTS MAY ACT ONLY IN THE CONTEXT OF A JUSTICIABLE CASE OR
CONTROVERSY.  MUSKRAT V. UNITED STATES, 219 U.S. 346 (1911); SEE FLAST
V. COHEN, 392 U.S. 83, 94-97 (1968). 

THE LANGUAGE USED IN A NUMBER OF THIS COURT'S OPINION MIGHT BE READ
TO INDICATE THAT THE EXISTENCE OF A VALID CONCURRENT SENTENCE REMOVES
THE NECESSARY ELEMENTS OF A JUSTICIABLE CONTROVERSY.  THE "CONCURRENT
SENTENCE DOCTRINE" TOOK ROOT IN THIS COUNTRY QUITE EARLY, ALTHOUGH ITS
EARLIEST MANIFESTATIONS OCCURRED IN SLIGHTLY DIFFERENT CONTEXTS.  IN
LOCKE V. UNITED STATES, 7 CRANCH 339 (1813), A CARGO BELONGING TO THE
PLAINTIFF IN ERROR HAD BEEN CONDEMNED UNDER A LIBEL CONTAINING 11
COUNTS.  CHIEF JUSTICE JOHN MARSHALL, SPEAKING FOR THE COURT, FOUND IT
UNNECESSARY TO CONSIDER LOCKE'S CHALLENGES TO ALL 11 COUNTS.  HE
DECLARED, SIMPLY ENOUGH, "THE COURT HOWEVER, IS OF OPINION, THAT THE
4TH COUNT IS GOOD, AND THIS RENDERS IT UNNECESSARY TO DECIDE ON THE
OTHERS."  ID., AT 344.  SIMILAR REASONING WAS LATER APPLIED IN A CASE
WHERE A SINGLE GENERAL SENTENCE RESTED ON CONVICTIONS UNDER SEVERAL
COUNTS OF AN INDICTMENT.  DRAWING UPON SOME ENGLISH CASES AND DICTA
FROM LORD MANSFIELD, /4/  THE COURT IN CLAASSEN V. UNITED STATES 142
U.S. 140, 146 (1891), HELD THAT IF THE DEFENDANT HAD VALIDLY BEEN
CONVICTED ON ANY ONE COUNT "THE OTHER COUNTS NEED NOT BE CONSIDERED." 
THE MOST WIDELY CITED APPLICATION OF THIS APPROACH TO CASES WHERE
CONCURRENT SENTENCES, RATHER THAN A SINGLE GENERAL SENTENCE, HAVE BEEN
IMPOSED IS HIRABAYASHI V. UNITED STATES, 320 U.S. 81 (1943).  IN THAT
CASE THE DEFENDANT HAD BEEN FOUND GUILTY OF TWO DIFFERENT OFFENSES AND
HAD RECEIVED CONCURRENT THREE-MONTH SENTENCES.  HE CHALLENGED THE
CONSTITUTIONALITY OF BOTH CONVICTIONS, BUT THIS COURT AFFIRMED THE
LOWER COURT'S JUDGMENT AFTER CONSIDERING AND REJECTING ONLY ONE OF HIS
CHALLENGES.  SINCE THE CONVICTION ON THE SECOND COUNT WAS VALID, T4E
COURT FOUND IT "UNNECESSARY" TO CONSIDER THE CHALLENGE TO THE FIRST
COUNT.  ID., AT 85, 105. 

THE CONCURRENT SENTENCE DOCTRINE HAS BEEN WIDELY, IF SOMEWHAT
HAPHAZARDLY, APPLIED IN THIS COURT'S DECISIONS.  AT TIMES THE COURT HAS
SEEMED TO SAY THAT THE DOCTRINE RAISES A JURISDICTIONAL BAR TO THE
CONSIDERATION OF COUNTS UNDER CONCURRENT SENTENCES.  SOME OPINIONS HAVE
BALDLY DECLARED THAT JUDGMENTS OF CONVICTION "MUST BE UPHELD" IF ANY
ONE COUNT WAS GOOD.  BARENBLATT V. UNITED STATES, 360 U.S. 109, 115
(1959); SEE UNITED STATES V. GAINEY, 380 U.S. 63, 65 (1965).  IN OTHER
CASES THE COURT HAS CHOSEN SOMEWHAT WEAKER LANGUAGE, INDICATING ONLY
THAT A JUDGMENT "MAY BE AFFIRMED IF THE CONVICTION ON EITHER COUNT IS
VALID."  ROVIARO V. UNITED STATES, 353 U.S. 53, 59, N. 6 (1957).  AND
ON AT LEAST ONE OCCASION, THE COURT HAS IGNORED THE RULE ENTIRELY AND
DECIDED AN ISSUE THAT AFFECTED ONLY ONE COUNT, EVEN THOUGH THERE WERE
CONCURRENT SENTENCES.  PUTNAM V. UNITED STATES, 162 U.S. 687 (1896). 

ONE CAN SEARCH THROUGH THESE CASES, AND RELATED ONES, WITHOUT
FINDING ANY SATISFACTORY EXPLANATION FOR THE CONCURRENT SENTENCE
DOCTRINE.  SEE UNITED STATES V. HINES, 256 F.2D 561, 562-563 (C.A. 2D
CIR. 1958).  BUT WHATEVER THE UNDERLYING JUSTIFICATIONS FOR THE
DOCTRINE, IT SEEMS CLEAR TO US THAT IT CANNOT BE TAKEN TO STATE A
JURISDICTIONAL RULE.  SEE YATES V. UNITED STATES, 355 U.S. 66, 75-76
(1957); PUTNAM V. UNITED STATES, SUPRA.  MOREOVER, WHATEVER MAY HAVE
BEEN THE APPROACH IN THE PAST, OUR RECENT DECISIONS ON THE QUESTION OF
MOOTNESS IN CRIMINAL CASES MAKE IT PERFECTLY CLEAR THAT THE EXISTENCE
OF CONCURRENT SENTENCES DOES NOT REMOVE THE ELEMENTS NECESSARY TO
CREATE A JUSTICIABLE CASE OR CONTROVERSY. 

IN SIBRON V. NEW YORK, 392 U.S. 40 (1968), WE HELD THAT A CRIMINAL
CASE DID NOT BECOME MOOT UPON THE EXPIRATION OF THE SENTENCE IMPOSED. 
WE NOTED "THE OBVIOUS FACT OF LIFE THAT MOST CRIMINAL CONVICTIONS DO IN
FACT ENTAIL ADVERSE COLLATERAL LEGAL CONSEQUENCES."  ID., AT 55.  WE
CONCLUDED THAT THE MERE POSSIBILITY OF SUCH COLLATERAL CONSEQUENCES WAS
ENOUGH TO GIVE THE CASE THE "IMPACT OF ACTUALITY" WHICH WAS NECESSARY
TO MAKE IT A JUSTICIABLE CASE OR CONTROVERSY.  SIBRON AND A NUMBER OF
OTHER RECENT CASES HAVE CANVASSED THE POSSIBLE ADVERSE COLLATERAL
EFFECTS OF CRIMINAL CONVICTIONS, /5/  AND WE NEED NOT REPEAT THAT
ANALYSIS HERE.  IT IS ENOUGH TO SAY THAT THERE ARE SUCH POSSIBILITIES
IN THIS CASE.  FOR EXAMPLE, THERE ARE A FEW STATES WHICH CONSIDER ALL
PRIOR FELONY CONVICTIONS FOR THE PURPOSE OF ENHANCING SENTENCE UNDER
HABITUAL CRIMINAL STATUTES, EVEN IF THE CONVICTIONS ACTUALLY
CONSTITUTED ONLY SEPARATE COUNTS IN A SINGLE INDICTMENT TRIED ON THE
SAME DAY.  /6/  PETITIONER MIGHT SOME DAY IN ONE OF THESE STATES HAVE
BOTH HIS LARCENY AND BURGLARY CONVICTIONS COUNTED AGAINST HIM. 
ALTHOUGH THIS POSSIBILITY MAY WELL BE A REMOTE ONE, IT IS ENOUGH TO
GIVE THIS CASE AN ADVERSARY CAST AND MAKE IT JUSTICIABLE.  MOREOVER, AS
IN SIBRON, BOTH OF PETITIONER'S CONVICTIONS MIGHT SOME DAY BE USED TO
IMPEACH HIS CHARACTER IF PUT IN ISSUE AT A FUTURE TRIAL.  ALTHOUGH
PETITIONER COULD EXPLAIN THAT BOTH CONVICTIONS AROSE OUT OF THE SAME
TRANSACTION, A JURY MIGHT NOT BE ABLE TO APPRECIATE THIS SUBTLETY. 

WE CANNOT, THEREFORE, SAY THAT THIS COURT LACKS JURISDICTION TO
DECIDE PETITIONER'S CHALLENGE TO HIS LARCENY CONVICTION.  IT MAY BE
THAT IN CERTAIN CIRCUMSTANCES A FEDERAL APPELLATE COURT, AS A MATTER OF
DISCRETION, MIGHT DECIDE (AS IN HIRABAYASHI) THAT IT IS "UNNECESSARY"
TO CONSIDER ALL THE ALLEGATIONS MADE BY A PARTICULAR PARTY.  /7/  THE
CONCURRENT SENTENCE RULE MAY HAVE SOME CONTINUING VALIDITY AS A RULE OF
JUDICIAL CONVENIENCE.  THAT IS NOT A SUBJECT WE MUST CANVASS TODAY,
HOWEVER.  IT IS SUFFICIENT FOR PRESENT PURPOSES TO HOLD THAT THERE IS
NO JURISDICTIONAL BAR TO CONSIDERATION OF CHALLENGES TO MULTIPLE
CONVICTIONS, EVEN THOUGH CONCURRENT ESENTENCES WERE IMPOSED. 

        II. 

WHILE MARYLAND APPARENTLY AGREES THAT THERE IS NO JURISDICTIONAL BAR
TO CONSIDERATION OF PETITIONER'S LARCENY CONVICTION, IT ARGUES THAT THE
POSSIBILITY OF COLLATERAL CONSEQUENCES IS SO REMOTE IN THIS CASE THAT
ANY DOUBLE JEOPARDY VIOLATION SHOULD BE TREATED AS A SPECIES OF
"HARMLESS ERROR."  THE SOLICITOR GENERAL, WHILE NOT COMMENTING AT
LENGTH ON THE FACTS OF THIS PARTICULAR CASE, SUGGESTS THAT WE TREAT THE
CONCURRENT SENTENCE DOCTRINE AS A PRINCIPLE OF JUDICIAL EFFICIENCY
WHICH PERMITS JUDGES TO AVOID DECISION OF ISSUES WHICH HAVE NO
APPRECIABLE IMPACT ON THE RIGHTS OF ANY PARTY.  BOTH MARYLAND AND THE
SOLICITOR GENERAL ARGUE THAT THE DEFENDANT SHOULD BEAR THE BURDEN OF
CONVINCING THE APPELLATE COURT OF THE NEED TO REVIEW ALL HIS CONCURRENT
SENTENCES.  PETITIONER, ON THE OTHER HAND, SEES IN SIBRON A COMMAND
THAT FEDERAL APPELLATE COURTS TREAT ALL ERRORS WHICH MAY POSSIBLY
AFFECT A DEFENDANT'S RIGHTS, AND HE ARGUES THAT THE CONCURRENT SENTENCE
RULE THEREFORE HAS NO CONTINUING VALIDITY, EVEN AS A RULE OF
CONVENIENCE. 

BECAUSE OF THE SPECIAL CIRCUMSTANCES IN THIS CASE, WE FIND IT
UNNECESSARY TO RESOLVE THIS DISPUTE.  FOR EVEN IF THE CONCURRENT
SENTENCE DOCTRINE SURVIVES AS A RULE OF JUDICIAL CONVENIENCE, WE FIND
GOOD REASON NOT TO APPLY IT HERE.  ON DIRECT APPEAL FROM PETITIONER'S
CONVICTION, THE MARYLAND COURT OF SPECIAL APPEALS DID IN FACT RULE ON
HIS DOUBLE JEOPARDY CHALLENGE TO THE LARCENY COUNT.  1 MD.APP.,AT 650
651, 232 A.2D, AT 542-543.  IT IS UNCLEAR WHETHER MARYLAND COURTS
ALWAYS CONSIDER ALL CHALLENGES RAISED ON DIRECT APPEAL, NOTWITHSTANDING
THE EXISTENCE OF CONCURRENT SENTENCES, /8/  BUT AT LEAST IN THIS CASE
THE STATE DECIDED NOT TO APPLY THE CONCURRENT SENTENCE RULE.  THIS MAY
WELL INDICATE THAT THE STATE HAS SOME INTEREST IN KEEPING THE LARCENY
CONVICTION ALIVE; /9/  IF, AS MARYLAND ARGUES HERE, THE LARCENY
CONVICTION IS OF NO IMPORTANCE TO EITHER PARTY, ONE WONDERS WHY THE
STATE COURTS FOUND IT NECESSARY TO PASS ON IT.  SINCE THE FUTURE
IMPORTANCE OF THE CONVICTION MAY WELL TURN ON ISSUES OF STATE LAW ABOUT
WHICH WE ARE NOT WELL INFORMED, WE PROPOSE, ON DIRECT APPEAL FROM THE
MARYLAND COURTS, TO ACCEPT THEIR JUDGMENT ON THIS QUESTION.  SINCE THEY
DECIDED THIS FEDERAL CONSTITUTIONAL QUESTION, WE SEE NO REASON WHY WE
SHOULD NOT DO SO AS WELL.  MOREOVER, THE STATUS OF PETITIONER'S
BURGLARY CONVICTION AND THE EVENTUAL LENGTH OF HIS SENTENCE ARE BOTH
STILL IN SOME DOUBT.  /10/  SHOULD ANY ATTACK ON THE BURGLARY
CONVICTION BE SUCCESSFUL, OR SHOULD THE LENGTH OF THE BURGLARY SENTENCE
BE REDUCED TO LESS THAN FIVE YEARS, PETITIONER WOULD THEN CLEARLY HAVE
A RIGHT TO HAVE HIS LARCENY CONVICTION REVIEWED.  AS WE SAID IN SIBRON
V. NEW YORK, SUPRA, AT 56-57, IT IS CERTAINLY PREFERABLE TO HAVE THAT
REVIEW NOW ON DIRECT APPEAL, RATHER THAN LATER.  /11/  FOR THESE
REASONS, AND BECAUSE THERE IS NO JURISDICTIONAL BAR, WE FIND IT
APPROPRIATE TO REACH THE QUESTIONS SPECIFIED IN OUR ORIGINAL WRIT OF
CERTIORARI. 

        III.     IN 1937, THIS COURT DECIDED THE LANDMARK CASE OF
PALKO V. CONNECTICUT, 302 U.S. 319.  PALKO, ALTHOUGH INDICTED FOR FIRST
DEGREE MURDER, HAD BEEN CONVICTED OF MURDER IN THE SECOND DEGREE AFTER
A JURY TRIAL IN A CONNECTICUT STATE COURT.  THE STATE APPEALED AND WON
A NEW TRIAL.  PALKO ARGUED THAT THE FOURTEENTH AMENDMENT INCORPORATED,
AS AGAINST THE STATES, THE FIFTH AMENDMENT REQUIREMENT THAT NO PERSON
"BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF LIFE OR
LIMB."  THE COURT DISAGREED.  FEDERAL DOUBLE JEOPARDY STANDARDS WERE
NOT APPLICABLE AGAINST THE STATES.  ONLY WHEN A KIND OF JEOPARDY
SUBJECTED A DEFENDANT TO "A HARDSHIP SO ACUTE AND SHOCKING THAT OUR
POLITY WILL NOT ENDURE IT," ID., AT 328, DID THE FOURTEENTH AMENDMENT
APPLY.  THE ORDER FOR A NEW TRIAL WAS AFFIRMED.  IN SUBSEQUENT APPEALS
FROM STATE COURTS, THE COURT CONTINUED TO APPLY THIS LESSER PALKO
STANDARD.  SEE, E.G., BROCK V. NORTH CAROLINA, 344 U.S. 424 (1953). 

RECENTLY, HOWEVER, THIS COURT HAS "INCREASINGLY LOOKED TO THE
SPECIFIC GUARANTEES OF THE (BILL OF RIGHTS) TO DETERMINE WHETHER A
STATE CRIMINAL TRIAL WAS CONDUCTED WITH DUE PROCESS OF LAW." 
WASHINGTON V. TEXAS, 388 U.S. 14, 18 (1967).  IN AN INCREASING NUMBER
OF CASES, THE COURT "HAS REJECTED THE NOTION THAT THE FOURTEENTH
AMENDMENT APPLIES TO THE STATES ONLY A 'WATERED-DOWN, SUBJECTIVE
VERSION OF THE INDIVIDUAL GUARANTEES OF THE BILL OF RIGHTS . . . .'" 
MALLOY V. HOGAN, 378 U.S. 1, 10-11 (1964).  /12/  ONLY LAST TERM WE
FOUND THAT THE RIGHT TO TRIAL BY JURY IN CRIMINAL CASES WAS
"FUNDAMENTAL TO THE AMERICAN SCHEME OF JUSTICE," DUNCAN V. LOUISIANA,
391 U.S. 145, 149 (1968), AND HELD THAT THE SIXTH AMENDMENT RIGHT TO A
JURY TRIAL WAS APPLICABLE TO THE STATES THROUGH THE FOURTEENTH
AMENDMENT.  /13/  FOR THE SAME REASONS, WE TODAY FIND THAT THE DOUBLE
JEOPARDY PROHIBITION OF THE FIFTH AMENDMENT REPRESENTS A FUNDAMENTAL
IDEAL IN OUR CONSTITUTIONAL HERITAGE, AND THAT IT SHOULD APPLY TO THE
STATES THROUGH THE FOURTEENTH AMENDMENT.  INSOFAR AS IT IS INCONSISTENT
WITH THIS HOLDING, PALKO V. CONNECTICUT IS OVERRULED. 

PALKO REPRESENTED AN APPROACH TO BASIC CONSTITUTIONAL RIGHTS WHICH
THIS COURT'S RECENT DECISIONS HAVE REJECTED.  IT WAS CUT OF THE SAME
CLOTH AS BETTS V. BRADY, 316 U.S. 455 (1942), THE CASE WHICH HELD THAT
A CRIMINAL DEFENDANT'S RIGHT TO COUNSEL WAS TO BE DETERMINED BY
DECIDING IN EACH CASE WHETHER THE DENIAL OF THAT RIGHT WAS "SHOCKING TO
THE UNIVERSAL SENSE OF JUSTICE."  ID., AT 462.  IT RELIED UPON TWINING
V. NEW JERSEY, 211 U.S. 78 (1908), WHICH HELD THAT THE RIGHT AGAINST
COMPULSORY SELF-INCRIMINATION WAS NOT AN ELEMENT OF FOURTEENTH
AMENDMENT DUE PROCESS.  BETTS WAS OVERRULED BY GIDEON V. WAINWRIGHT,
372 U.S. 335 (1963); TWINING, BY MALLOY V. HOGAN, 378 U.S. 1 (1964). 
OUR RECENT CASES HAVE THOROUGHLY REJECTED THE PALKO NOTION THAT BASIC
CONSTITUTIONAL RIGHTS CAN BE DENIED BY THE STATES AS LONG AS THE
TOTALITY OF THE CIRCUMSTANCES DOES NOT DISCLOSE A DENIAL OF
"FUNDAMENTAL FAIRNESS."  ONCE IT IS DECIDED THAT A PARTICULAR BILL OF
RIGHTS GUARANTEE IS "FUNDAMENTAL TO THE AMERICAN SCHEME OF JUSTICE,"
DUNCAN V. LOUISIANA, SUPRA, AT 149, THE SAME CONSTITUTIONAL STANDARDS
APPLY AGAINST BOTH THE STATE AND FEDERAL GOVERNMENTS.  PALKO'S ROOTS
HAD THUS BEEN CUT AWAY YEARS AGO.  WE TODAY ONLY RECOGNIZE THE
INEVITABLE. 

THE FUNDAMENTAL NATURE OF THE GUARANTEE AGAINST DOUBLE JEOPARDY CAN
HARDLY BE DOUBTED.  ITS ORIGINS CAN BE TRACED TO GREEK AND ROMAN TIMES,
AND IT BECAME ESTABLISHED IN THE COMMON LAW OF ENGLAND LONG BEFORE THIS
NATION'S INDEPENDENCE.  /14/  SEE BARTKUS V. ILLINOIS, 359 U.S. 121,
151-155 (1959) (BLACK, J., DISSENTING).  AS WITH MANY OTHER ELEMENTS OF
THE COMMON LAW, IT WAS CARRIED INTO THE JURISPRUDENCE OF THIS COUNTRY
THROUGH THE MEDIUM OF BLACKSTONE, WHO CODIFIED THE DOCTRINE IN HIS
COMMENTARIES.  "(THE PLEA OF AUTREFOITS ACQUIT; OR A FORMER ACQUITTAL,"
HE WROTE, "IS GROUNDED ON THIS UNIVERSAL MAXIM OF THE COMMON LAW OF
ENGLAND, THAT NO MAN IS TO BE BROUGHT INTO JEOPARDY OF HIS LIFE MORE
THAN ONCE FOR THE SAME OFFENSE."  /15/  TODAY, EVERY STATE INCORPORATES
SOME FORM OF THE PROHIBITION IN ITS CONSTITUTION OR COMMON LAW.  /16/
AS THIS COURT PUT IT IN GREEN V. UNITED STATES, 355 U.S. 184, 187-188
(1957), "(THE UNDERLYING IDEA, ONE THAT IS DEEPLY INGRAINED IN AT LEAST
THE ANGLO-AMERICAN SYSTEM OF JURISPRUDENCE, IS THAT THE STATE WITH ALL
ITS RESOURCES AND POWER SHOULD NOT BE ALLOWED TO MAKE REPEATED ATTEMPTS
TO CONVICT AN INDIVIDUAL FOR AN ALLEGED OFFENSE THEREBY SUBJECTING HIM
TO EMBARRASSMENT, EXPENSE AND ORDEAL AND COMPELLING HIM TO LIVE IN A
CONTINUING STATE OF ANXIETY AND INSECURITY, AS WELL AS ENHANCING THE
POSSIBILITY THAT EVEN THOUGH INNOCENT HE MAY BE FOUND GUILTY."  THIS
UNDERLYING NOTION HAS FROM THE VERY BEGINNING BEEN PART OF OUR
CONSTITUTIONAL TRADITION.  LIKE THE RIGHT TO TRIAL BY JURY, IT IS
CLEARLY "FUNDAMENTAL TO THE AMERICAN SCHEME OF JUSTICE."  THE VALIDITY
OF PETITIONER'S LARCENY CONVICTION MUST BE JUDGED, NOT BY THE WATERED
DOWN STANDARD ENUNCIATED IN PALKO, BUT UNDER THIS COURT'S
INTERPRETATIONS OF THE FIFTH AMENDMENT DOUBLE JEOPARDY PROVISION. 

        IV. 

IT IS CLEAR THAT PETITIONER'S LARCENY CONVICTION CANNOT STAND ONCE
FEDERAL DOUBLE JEOPARDY STANDARDS ARE APPLIED.  PETITIONER WAS
ACQUITTED OF LARCENY IN HIS FIRST TRIAL.  BECAUSE HE DECIDED TO APPEAL
HIS BURGLARY CONVICTION, HE IS FORCED TO SUFFER RETRIAL ON THE LARCENY
COUNT AS WELL.  AS THIS COURT HELD IN GREEN V. UNITED STATES, SUPRA, AT
193-194, "(CONDITIONING AN APPEAL OF ONE OFFENSE ON A COERCED SURRENDER
OF A VALID PLEA OF FORMER JEOPARDY ON ANOTHER OFFENSE EXACTS A
FORFEITURE IN PLAIN CONFLICT WITH THE CONSTITUTIONAL BAR AGAINST DOUBLE
JEOPARDY." 

MARYLAND ARGUES THAT GREEN DOES NOT APPLY TO THIS CASE BECAUSE
PETITIONER'S ORIGINAL INDICTMENT WAS ABSOLUTELY VOID.  ONE CANNOT BE
PLACED IN "JEOPARDY" BY A VOID INDICTMENT, THE STATE ARGUES.  THIS
ARGUMENT SOUNDS A BIT STRANGE, HOWEVER, SINCE PETITIONER COULD QUIETLY
HAVE SERVED OUT HIS SENTENCE UNDER THIS "VOID" INDICTMENT HAD HE NOT
APPEALED HIS BURGLARY CONVICTION.  ONLY BY ACCEPTING THE OPTION OF A
NEW TRIAL COULD THE INDICTMENT BE SET ASIDE; AT WORST THE INDICTMENT
WOULD SEEM ONLY VOIDABLE AT THE DEFENDANT'S OPTION, NOT ABSOLUTELY
VOID.  IN ANY CASE, THIS ARGUMENT WAS ANSWERED HERE OVER 70 YEARS AGO
IN UNITED STATES V. BALL, 163 U.S. 662 (1896).  IN THAT CASE MILLARD
FILLMORE BALL WAS INDICTED, TOGETHER WITH TWO OTHER MEN, FOR THE MURDER
OF ONE WILLIAM T. BOX IN THE INDIAN TERRITORY.  HE WAS ACQUITTED AND
HIS CODEFENDANTS WERE CONVICTED.  THEY APPEALED AND WON A REVERSAL ON
THE GROUND THAT THE INDICTMENT ERRONEOUSLY FAILED TO AVER THE TIME OR
PLACE OF BOX'S DEATH.  ALL THREE DEFENDANTS WERE RETRIED, AND THIS TIME
BALL WAS CONVICTED.  THIS COURT SUSTAINED HIS DOUBLE JEOPARDY CLAIM,
NOTWITHSTANDING THE TECHNICAL INVALIDITY OF THE INDICTMENT UPON WHICH
HE WAS FIRST TRIED.  THE COURT REFUSED TO ALLOW THE GOVERNMENT TO
ALLEGE ITS OWN ERROR TO DEPRIVE THE DEFENDANT OF THE BENEFIT OF AN
ACQUITTAL BY A JURY.  ID., AT 667-668.  "(ALTHOUGH THE INDICTMENT WAS
FATALLY DEFECTIVE, YET, IF THE COURT HAD JURISDICTION OF THE CAUSE AND
OF THE PARTY, ITS JUDGMENT IS NOT VOID, BUT ONLY VOIDABLE BY WRIT OF
ERROR . . . ," AND THE GOVERNMENT COULD NOT HAVE THE ACQUITTAL SET
ASIDE OVER THE DEFENDANT'S OBJECTIONS.  ID., AT 669-670.  THIS CASE IS
TOTALLY INDISTINGUISHABLE.  PETITIONER WAS ACQUITTED OF LARCENY.  HE
HAS, UNDER GREEN, A VALID DOUBLE JEOPARDY PLEA WHICH HE CANNOT BE
FORCED TO WAIVE.  YET MARYLAND WANTS THE EARLIER ACQUITTAL SET ASIDE,
OVER PETITIONER'S OBJECTIONS, BECAUSE OF A DEFECT IN THE INDICTMENT. 
THIS IT CANNOT DO.  PETITIONER'S LARCENY CONVICTION CANNOT STAND. 

        V. 

PETITIONER ARGUES THAT HIS BURGLARY CONVICTION SHOULD BE SET ASIDE
AS WELL.  HE CONTENDS THAT SOME EVIDENCE, INADMISSIBLE UNDER STATE LAW
IN A TRIAL FOR BURGLARY ALONE, WAS INTRODUCED IN THE JOINT TRIAL FOR
BOTH BURGLARY AND LARCENY, AND THAT THE JURY WAS PREJUDICED BY THIS
EVIDENCE.  /17/  THIS QUESTION WAS NOT DECIDED BY THE MARYLAND COURT OF
SPECIAL APPEALS BECAUSE IT FOUND NO DOUBLE JEOPARDY VIOLATION AT ALL. 
IT IS NOT OBVIOUS ON THE FACE OF THE RECORD THAT THE BURGLARY
CONVICTION WAS AFFECTED BY THE DOUBLE JEOPARDY VIOLATION.  TO DETERMINE
WHETHER THERE IS IN FACT ANY SUCH EVIDENTIARY ERROR, WE WOULD HAVE TO
EXPLORE THE MARYLAND LAW OF EVIDENCE AND THE MARYLAND DEFINITIONS OF
LARCENY AND BURGLARY, AND THEN EXAMINE THE RECORD IN DETAIL.  WE DO NOT
THINK THAT THIS IS THE KIND OF DETERMINATION WE SHOULD MAKE UNAIDED BY
PRIOR CONSIDERATION BY THE STATE COURTS.  /18/  ACCORDINGLY, WE THINK
IT "JUST UNDER THE CIRCUMSTANCES," 28 U.S.C. 2106, TO VACATE THE
JUDGMENT BELOW AND REMAND FOR CONSIDERATION OF THIS QUESTION.  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE INCREASE IN PETITIONER'S SENTENCE ON THE BURGLARY COUNT
FROM 10 TO 15 YEARS IS PRESENTLY THE SUBJECT OF LITIGATION ON FEDERAL
HABEAS CORPUS IN THE LOWER FEDERAL COURTS.  A FEDERAL DISTRICT COURT
ORDERED THE STATE TO RESENTENCE PETITIONER, BENTON V. COPINGER, 291
F.SUPP.  141 (D.C. MD. 1968), AND AN APPEAL BROUGHT BY THE STATE IS
PRESENTLY PENDING IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

/2/  SEE PART V, INFRA.  OF COURSE, IF THE ERROR INFECTED BOTH
COUNTS UPON WHICH PETITIONER WAS CONVICTED, THERE WOULD BE NO
CONCURRENT SENTENCE PROBLEM AT ALL.  WE DO NOT, HOWEVER, RESOLVE THE
QUESTION OF WHETHER THE BURGLARY CONVICTION WAS "TAINTED." 

/3/  THE LENGTH OF THAT SENTENCE IS PRESENTLY A MATTER IN DISPUTE,
SEE N. 1, SUPRA. 

/4/  GRANT V. ASTLE, 2 DOUG.  722, 99 ENG.REP.  459 (1781); PEAKE V.
OLDHAM, 1 COWP.  275, 98 ENG.REP.  1083 (1775); REX V. BENFIELD, 2
BURR.  980, 97 ENG.REP.  664 (1760). 

/5/  STREET V. NEW YORK, 394 U.S. 576, 579-580, N. 3 (1969); CARAFAS
V. LAVALLEE, 391 U.S. 234, 237-238 (1968); GINSBERG V. NEW YORK, 390
U.S. 629, 633-634, N. 2 (1968). 

/6/  THE MAJORITY RULE IS, APPARENTLY, THAT ALL CONVICTIONS HANDED
DOWN AT THE SAME TIME COUNT AS A SINGLE CONVICTION FOR THE PURPOSE OF
HABITUAL OFFENDER STATUTES, BUT A FEW STATES FOLLOW THE STRICTER RULE
DESCRIBED IN THE TEXT.  THE RELEVANT CASES ARE COLLECTED AT 24 A.L.R.2D
1262-1267 (1952), AND IN THE ACCOMPANYING SUPPLEMENTS. 

/7/  IN SIBRON WE NOTED THE INADEQUACIES OF A PROCEDURE WHICH
POSTPONES APPELLATE REVIEW UNTIL IT IS PROPOSED TO SUBJECT THE
CONVICTED PERSON TO COLLATERAL CONSEQUENCES.  392 U.S.,AT 56-57.  FOR
THE REASONS THERE STATED, AN ATTEMPT TO IMPOSE COLLATERAL CONSEQUENCES
AFTER AN INITIAL REFUSAL TO REVIEW A CONVICTION ON DIRECT APPEAL
BECAUSE OF THE CONCURRENT SENTENCE DOCTRINE MAY WELL RAISE SOME
CONSTITUTIONAL PROBLEMS.  THAT ISSUE IS NOT, HOWEVER, PRESENTED BY THIS
CASE, AND ACCORDINGLY WE EXPRESS NO OPINION ON IT. 

/8/  COMPARE MEADE V. STATE, 198 MD. 489, 84 A.2D 892 (1951), WITH
MARKS V. STATE, 230 MD. 108, 185 A.2D 909 (1962). 

/9/  SEE N. 7, SUPRA. 

/10/  SEE N. 1, SUPRA, AND PART V, INFRA. 

/11/  A STRONGER CASE FOR TOTAL ABOLITION OF THE CONCURRENT SENTENCE
DOCTRINE MAY WELL BE MADE IN CASES ON DIRECT APPEAL, AS COMPARED TO
CONVICTIONS ATTACKED COLLATERALLY BY SUITS FOR POST-CONVICTION RELIEF. 
BECAUSE OF OUR DISPOSITION OF THIS CASE, WE NEED NOT REACH THIS
QUESTION. 

/12/  QUOTING FROM OHIO EX REL. EATON V. PRICE, 364 U.S. 263, 275
(1960) (OPINION OF BRENNAN, J.). 

/13/  A LIST OF THOSE BILL OF RIGHTS GUARANTEES WHICH HAVE BEEN HELD
"INCORPORATED" IN THE FOURTEENTH AMENDMENT CAN BE FOUND IN DUNCAN,
SUPRA, AT 148. 

/14/  J. SIGLER, DOUBLE JEOPARDY 1-37 (1969). 

/15/  4 W. BLACKSTONE, COMMENTARIES #335. 

/16/  SIGLER, SUPRA, N. 14, AT 78-79; BROCK V. NORTH CAROLINA, 344
U.S. 424, 435, N. 6 (1953) (VINSON, C. J., DISSENTING). 

/17/  THERE IS NO DANGER HERE THAT THE JURY MIGHT HAVE BEEN TEMPTED
TO COMPROMISE ON A LESSER CHARGE BECAUSE OF AN ERRONEOUS RETRIAL ON A
GREATER CHARGE.  SEE UNITED STATES EX REL. HETENYI V. WILKINS, 348 F.2D
844, 866 (C.A. 2D CIR. 1965), CERT. DENIED, SUB NOM. MANCUSI V.
HETENYI, 383 U.S. 913 (1966).  LARCENY IS A LESSER OFFENSE THAN
BURGLARY. 

/18/  SEE NOTE, INDIVIDUALIZED CRIMINAL JUSTICE IN THE SUPREME
COURT:  A STUDY OF DISPOSITIONAL DECISION MAKING, 81 HAR.L.REV.  1260,
1271-1273 (1968). 

MR. JUSTICE WHITE, CONCURRING. 

WHILE I AGREE WITH THE COURT'S EXTENSION OF THE PROHIBITION AGAINST
DOUBLE JEOPARDY TO THE STATES, AND WITH THE COURT'S CONCLUSION THAT THE
CONCURRENT SENTENCE RULE CONSTITUTES NO JURISDICTIONAL BAR, ADDITIONAL
COMMENT ON THE WISDOM AND EFFECTS OF APPLYING A CONCURRENT SENTENCE
RULE SEEMS APPROPRIATE. 

IN A TIME OF INCREASINGLY CONGESTED JUDICIAL DOCKETS, OFTEN
REQUIRING LONG DELAYS BEFORE TRIAL AND UPON APPEAL, JUDICIAL RESOURCES
HAVE BECOME SCARCE.  WHERE A MAN HAS BEEN CONVICTED ON SEVERAL COUNTS
AND SENTENCED CONCURRENTLY UPON EACH, AND WHERE JUDICIAL REVIEW OF ONE
COUNT SUSTAINS ITS VALIDITY, THE NEED FOR REVIEW OF THE OTHER COUNTS IS
NOT A PRESSING ONE SINCE, REGARDLESS OF THE OTHER OUTCOME, THE PRISONER
WILL REMAIN IN JAIL FOR THE SAME LENGTH OF TIME UNDER THE COUNT
UPHELD.  RATHER THAN PERMIT OTHER CASES TO LANGUISH WHILE CAREFUL
REVIEW OF THESE REDUNDANT COUNTS IS CARRIED TO ITS FUTILE CONCLUSION,
JUDICIAL RESOURCES MIGHT BE BETTER EMPLOYED BY MOVING ON TO MORE
PRESSING BUSINESS.  THIS IS NOT A RULE OF CONVENIENCE TO THE JUDGE, BUT
RATHER OF FAIRNESS TO OTHER LITIGANTS. 

THIS IS NOT TO SAY, HOWEVER, THAT THE FACT OF CONVICTION UNDER THE
UNREVIEWED COUNTS COULD NEVER BE OF IMPORTANCE TO THE PRISONER.  AFTER
HIS RELEASE IT IS POSSIBLE THEY MIGHT BE USED AGAINST HIM IN A
RECIDIVISM PROSECUTION, OR USED TO IMPEACH HIS TESTIMONY IN A TRIAL FOR
ANOTHER OFFENSE, TO PICK TWO OBVIOUS EXAMPLES.  NEVERTHELESS, THE
UNREVIEWED COUNTS ARE, BY HYPOTHESIS, NOT OF IMMEDIATE IMPORTANCE TO
HIS CONFINEMENT, AND OUR EXPERIENCE GIVES US NO INDICATION THAT THEY
ARE FREQUENTLY OF SUCH IMPORTANCE LATER THAT THE CONCURRENT SENTENCE
RULE SHOULD NOT BE APPLIED.     THE UNREVIEWED COUNT IS OFTEN ONE
WHICH, BUT FOR THE CONCURRENT SENTENCE RULE, THE PRISONER WOULD HAVE A
RIGHT TO CHALLENGE, EITHER DIRECTLY OR ON COLLATERAL ATTACK.  ARGUABLY,
TO DENY HIM THAT RIGHT WHEN ANOTHER MAN, CONVICTED AFTER A SEPARATE
TRIAL ON EACH COUNT, OR SENTENCED CONSECUTIVELY, COULD NOT BE DENIED
THAT RIGHT UNDER THE APPLICABLE STATE OR FEDERAL LAW, RAISES AN EQUAL
PROTECTION QUESTION.  BUT CLEARLY SO LONG AS THE DENIED REVIEW IF OF NO
SIGNIFICANCE TO THE PRISONER THE DENIAL OF EQUAL PROTECTION IS NOT
INVIDIOUS BUT ONLY THEORETICAL.     BUT SHOULD A SITUATION ARISE IN
WHICH THE CONVICT CAN DEMONSTRATE THAT THE UNREVIEWED COUNT IS BEING
USED AGAINST HIM, SO AS TO WORK SOME HARM TO HIM ADDITIONAL TO THAT
STEMMING FROM THE REVIEWED COUNT, HIS GRIEVANCE BECOMES REAL.  AT THAT
POINT IT MAY BE THAT THE UNREVIEWED COUNT MAY NOT BE USED AGAINST HIM,
UNLESS IT IS DETERMINED THAT THE LACK OF EARLIER REVIEW CAN BE CURED BY
THEN SUPPLYING THE CONVICT THE REVIEW TO WHICH HE WOULD EARLIER HAVE
BEEN ENTITLED BUT FOR HIS CONCURRENT SENTENCE ON ANOTHER COUNT.  FOR
MYSELF, POSTPONED REVIEW, A QUESTION WHICH THE COURT RESERVES (ANTE, AT
791, N. 7), PRESENTS NO INSEUPERABLE DIFFICULTIES.  APPELLATE REVIEW IS
ALWAYS CONDUCTED ON A COLD RECORD, AND COLLATERAL PROCEEDINGS
FREQUENTLY DEAL WITH A STALE RECORD AND STALE FACTS.  THERE IS NOTHING
INHERENTLY UNFAIR IN PERMITTING THE RECORD TO BECOME COLDER WHILE IT IS
IRRELEVANT TO ANY HUMAN NEED, AND OTHER LITIGANTS' DEMANDS ARE MORE
PRESSING.  WHETHER REVERSAL ON SUCH A RECORD, AFTER DELAYED
REVIEW,WOULD PERMIT RETRIAL OR A HEARING ON A CLAIM INVOLVING, FOR
EXAMPLE, A COERCED CONFESSION, IS YET A FURTHER QUESTION WHICH THERE IS
NO PRESENT NEED TO ADDRESS.  SHOULD A SATISFACTORY HEARING OR RETRIAL
PROVE IMPOSSIBLE THIS WOULD BE AN UNFORTUNATE BYPRODUCT OF AN INITIALLY
CROWDED DOCKET. 

FOR THE FOREGOING REASONS, I AGREE WITH THE COURT THAT THE
CONCURRENT SENTENCE RULE, WHILE NOT OF JURISDICTIONAL DIMENSIONS,
SHOULD BE PRESERVED AS A MATTER OF PROPER JUDICIAL ADMINISTRATION BOTH
ON DIRECT APPEAL AND COLLATERAL ATTACK, ALTHOUGH AT LEAST IN THEORY IT
RAISES A NUMBER OF QUESTIONS CONCERNING THE SUBSEQUENT EFFECTS OF THE
UNREVIEWED COUNTS.  IT MAY BE THAT WHERE IT CAN BE RELIABLY PREDICTED
IN A PARTICULAR CASE THAT EACH COUNT WOULD ENTAIL CONCRETE PREJUDICIAL
CONSEQUENCES AT A LATER DATE, THE APPELLATE COURT AT THE TIME OF
INITIAL REVIEW WOULD PREFER TO DEAL WITH ALL COUNTS RATHER THAN TO
APPLY THE CONCURRENT SENTENCE RULE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

ONE OF THE BEDROCK RULES THAT HAS GOVERNED, AND SHOULD CONTINUE TO
GOVERN, THE ADJUDICATIVE PROCESSES OF THIS COURT IS THAT THE DECISION
OF CONSTITUTIONAL QUESTIONS IN THE DISPOSITION OF CASES SHOULD BE
AVOIDED WHENEVER FAIRLY POSSIBLE.  TODAY THE COURT TURNS ITS BACK ON
THAT SOUND PRINCIPLE BY REFUSING, FOR THE FLIMSIEST OF REASONS, TO
APPLY THE "CONCURRENT SENTENCE DOCTRINE" SO AS NOT TO BE REQUIRED TO
DECIDE THE FAR-REACHING QUESTION WHETHER THE DOUBLE JEOPARDY CLAUSE OF
THE FIFTH AMENDMENT IS "INCORPORATED" INTO THE DUE PROCESS CLAUSE OF
THE FOURTEENTH, THEREBY MAKING THE FORMER APPLICABLE LOCK, STOCK, AND
BARREL TO THE STATES.  INDEED, IT IS QUITE MANIFEST THAT THE COURT HAS
ACTUALLY BEEN AT PAINS TO "REACH OUT" TO DECIDE THAT VERY IMPORTANT
CONSTITUTIONAL ISSUE. 

I CONSIDER THAT THE CONCURRENT SENTENCE DOCTRINE IS APPLICABLE HERE,
AND THAT DISMISSAL OF THE WRIT IS ACCORDINGLY CALLED FOR.  DESPITE
THAT, I FEEL CONSTRAINED ALSO TO EXPRESS MY VIEWS ON THE MERITS BECAUSE
OF WHAT I CONCEIVE TO BE THE IMPORTANCE OF THE CONSTITUTIONAL APPROACH
AT STAKE. 

        I. 

THE COURT DECIDES, AND I AGREE, THAT PETITIONER'S LARCENY CONVICTION
IS NOT MOOT, AND THAT THE CONCURRENT SENTENCE DOCTRINE IS NOT A
JURISDICTIONAL BAR TO ENTERTAINMENT OF CHALLENGES TO MULTIPLE
CONVICTIONS, SO LONG AS THE CONVICTIONS SOUGHT TO BE REVIEWED ARE NOT
MOOT.  HOWEVER, I WOULD ALSO EMPHASIZE, IN AGREEMENT WITH THE POSITION
OF THE GOVERNMENT AS AMICUS CURIAE, THAT THE CONCURRENT SENTENCE RULE
DOES HAVE CONTINUING VITALITY AS AN ELEMENT OF JUDICIAL DISCRETION, AND
THAT APPELLATE COURTS MAY DECLINE TO REVIEW A CONVICTION CARRYING A
CONCURRENT SENTENCE WHEN ANOTHER "CONCURRENT" CONVICTION HAS BEEN
REVIEWED AND FOUND VALID AND THE UNREVIEWED CONVICTION FORESEEABLY WILL
HAVE NO SIGNIFICANT ADVERSE CONSEQUENCES FOR THE APPELLANT.  AS THE
SOLICITOR GENERAL HAS POINTED OUT, THE CONCURRENT SENTENCE DOCTRINE
PLAYS A SIGNIFICANT ROLE IN CONSERVING THE TIME AND ENERGY OF APPELLATE
COURTS.  /1/  TO REQUIRE THAT THESE ALREADY OVERWORKED COURTS /2/
INVARIABLY REVIEW IN FULL DETAIL EACH OF SEVERAL CONVICTIONS CARRYING
CONCURRENT SENTENCES SEEMS TO ME SENSELESSLY DOCTRINAIRE.  /3/

        A. 

AS HAS BEEN NOTED, THE CONCURRENT SENTENCE DOCTRINE IS APPLICABLE
ONLY IF THERE EXISTS A VALID CONCURRENT CONVICTION.  IN THIS INSTANCE,
PETITIONER'S DOUBLE JEOPARDY ARGUMENT IS DIRECTED TO HIS LARCENY
CONVICTION, BUT HE CLAIMS THAT THE CONCURRENT SENTENCE DOCTRINE IS NO
IMPEDIMENT TO REACHING THAT QUESTION BECAUSE HIS CONCURRENT, AND
OTHERWISE VALID, BURGLARY CONVICTION WAS TAINTED BY HAVING BEEN TRIED
TOGETHER WITH THE LARCENY COUNT.  IT IS THEREFORE NECESSARY TO CONSIDER
WHETHER THIS CLAIM OF TAINT HAS MERIT. 

THE COURT FINDS THAT RESOLUTION OF THE TAINT ISSUE IS LIKELY TO
INVOLVE SUCH DIFFICULT POINTS OF MARYLAND LAW AS TO MAKE A REMAND TO
THE MARYLAND COURTS THE SOUNDEST COURSE.  SEE ANTE, AT 797-798. 
HOWEVER, MY EXAMINATION OF THE QUESTION CONVINCES ME THAT THE PERTINENT
MARYLAND LAW IS QUITE ELEMENTARY.  AND, UNLIKE THE COURT, I AM NOT
DETERRED BY THE PROSPECT OF HAVING TO "EXAMINE . . . IN DETAIL," ANTE,
AT 798, THE 42-PAGE RECORD OF PETITIONER'S SECOND TRIAL. 

I CONCLUDE THAT THERE WAS NO REAL POSSIBILITY OF TAINT.  BURGLARY IN
MARYLAND CONSISTS OF BREAKING AND ENTERING ANY DWELLING HOUSE IN THE
NIGHTTIME WITH INTENT TO STEAL, TAKE, OR CARRY AWAY THE PERSONAL GOODS
OF ANOTHER.  SEE MD. CODE ANN., ART. 27, SEC. 30(A) (1967).  LARCENY IN
MARYLAND IS A COMMON-LAW CRIME, CONSISTING OF THE TAKING AND CARRYING
AWAY OF THE PERSONAL PROPERTY OF ANOTHER WITH INTENT TO DEPRIVE THE
OWNER OF THE PROPERTY PERMANENTLY.  SEE, E.G., FLETCHER V. STATE, 231
MD. 190, 189 A.2D 641 (1963).  EVIDENCE WAS INTRODUCED AT PETITIONER'S
SECOND TRIAL TO SHOW THAT HE NOT ONLY ENTERED A LOCKED HOUSE AT NIGHT
BUT ALSO MADE OFF WITH SEVERAL HOUSEHOLD APPLIANCES.  THE LATTER
EVIDENCE WAS, OF COURSE, PERTINENT TO THE LARCENY COUNT.  HOWEVER, IT
WAS ALSO PLAINLY RELEVANT TO THE BURGLARY COUNT, SINCE IT TENDED TO
SHOW INTENT TO STEAL. 

PETITIONER BASES HIS TAINT ARGUMENT PRIMARILY ON THE PROPOSITION
THAT HE WAS ENTITLED TO HAVE THE EVIDENCE CONCERNING THE MISSING
APPLIANCES EXCLUDED FROM HIS SECOND TRIAL UNDER THE DOCTRINE OF
"COLLATERAL ESTOPPEL," HE HAVING BEEN ACQUITTED OF LARCENY AT THE FIRST
TRIAL.  HOWEVER, EVEN IF IT IS ASSUMED THAT THE CONVICTION ON THE
LARCENY COUNT WAS BAD ON DOUBLE JEOPARDY OR DUE PROCESS GROUNDS AND
THAT THE PRINCIPLE OF COLLATERAL ESTOPPEL HAS SOME APPLICATION TO STATE
CRIMINAL TRIALS THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, /4/  I THINK THAT THE DOCTRINE WOULD NOT PREVENT ADMISSION
OF THE EVIDENCE ON THE ISSUE OF BURGLARY.  THE PRINCIPLE OF COLLATERAL
ESTOPPEL MAKES CONCLUSIVE, IN COLLATERAL PROCEEDINGS, ONLY THOSE
MATTERS WHICH WERE "ACTUALLY LITIGATED AND DETERMINED IN THE ORIGINAL
ACTION . . . ."  CROMWELL V. COUNTY OF SAC, 94 U.S. 351, 353 (1877). 
/5/  THE MARYLAND CONSTITUTION PROVIDES: 

     "IN THE TRIAL OF ALL CRIMINAL CASES, THE JURY SHALL BE THE

  JUDGES OF LAW, AS WELL AS OF FACT, EXCEPT THAT THE COURT MAY PASS

  UPON THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN A CONVICTION." 

  MD. CONST., ART. 15, SEC. 5. 

HENCE, PETITIONER'S ACQUITTAL OF LARCENY AT HIS FIRST TRIAL MAY HAVE
RESTED SOLELY UPON THAT JURY'S UNIQUE VIEW OF THE LAW CONCERNING THAT
OFFENSE, AND CANNOT BE TAKEN AS HAVING NECESSARILY "DETERMINED" ANY
PARTICULAR QUESTION OF FACT. 

IT FOLLOWS FROM WHAT HAS BEEN SAID IN THIS SECTION THAT THERE CAN BE
NO ESTOPPEL EFFECT IN A COLLATERAL PROCEEDING, SUCH AS PETITIONER'S
SECOND TRIAL FOR BURGLARY, AND THAT PETITIONER'S TAINT ARGUMENT MUST
FAIL.  /6/

        B. 

SINCE PETITIONER'S SECOND BURGLARY CONVICTION WAS NOT TAINTED BY HIS
SIMULTANEOUS TRIAL FOR LARCENY, IT IS NECESSARY TO CONSIDER WHETHER THE
CONCURRENT SENTENCE DOCTRINE IS INAPPLICABLE FOR THE OTHER POSSIBLE
REASON:  THAT PETITIONER FORESEEABLY WILL SUFFER SIGNIFICANT ADVERSE
CONSEQUENCES ON ACCOUNT OF HIS LARCENY CONVICTION.  /7/ 

NO SUCH CONSEQUENCES CAN REASONABLY BE PREDICTED.  THE COURT ITSELF
NOTES THAT ONLY A "FEW STATES" WOULD ALLOW PETITIONER'S LARCENY
CONVICTION TO BE USED AGAINST HIM FOR PURPOSES OF SENTENCING AS A
HABITUAL OFFENDER, AND CONCEDES THAT "THIS POSSIBILITY MAY WELL BE A
REMOTE ONE."  ANTE, AT 790-791.  WHEN IT IS RECALLED THAT PETITIONER
HAD BEEN CONVICTED OF THREE FELONIES EVEN PRIOR TO HIS PRESENT BURGLARY
CONVICTION, /8/  THIS POSSIBILITY IS REDUCED TO THE VANISHING POINT. 
/9/ 

THERE REMAIN THE POSSIBILITIES THAT PETITIONER'S LARCENY CONVICTION
MIGHT BE CONSIDERED GENERALLY BY A JUDGE IF AND WHEN PETITIONER IS
SENTENCED FOLLOWING SOME FUTURE CONVICTION, AND THAT THE CONVICTION
MIGHT BE USED TO IMPEACH HIM IN FUTURE JUDICIAL PROCEEDINGS.  IN THE
CIRCUMSTANCES OF THIS CASE, THESE POTENTIAL CONSEQUENCES ARE PLAINLY
INSIGNIFICANT.  PETITIONER'S BURGLARY AND LARCENY CONVICTIONS WERE
BASED UPON THE VERY SAME SERIES OF ACTS ON HIS PART.  THIS FACT COULD
READILY BE BROUGHT TO THE ATTENTION EITHER OF A SENTENCING JUDGE OR OF
A TRIER OF FACT BEFORE WHOM PETITIONER WAS SOUGHT TO BE IMPEACHED. 
PREDICTABLY, KNOWLEDGE OF THE IDENTICAL ORIGIN OF THE TWO CONVICTIONS
WOULD REDUCE THE EXTRA IMPACT OF THE LARCENY CONVICTION TO NEGLIGIBLE
PROPORTIONS.  THUS, IT WOULD BE DIFFICULT TO IMAGINE A CASE IN WHICH A
"CONCURRENT" CONVICTION WOULD BE LIKELY TO ENTAIL FEWER ADVERSE
CONSEQUENCES. 

        C. 

THE COURT NONETHELESS HOLDS THAT "(BECAUSE OF THE SPECIAL
CIRCUMSTANCES IN THIS CASE" IT WILL NOT APPLY THE CONCURRENT SENTENCE
DOCTRINE, AND THAT IT IS UNNECESSARY EVEN TO DECIDE WHETHER THE
DOCTRINE HAS "CONTINUING VALIDITY, EVEN AS A RULE OF CONVENIENCE."  SEE
ANTE, AT 792.  ONE OF THE "SPECIAL CIRCUMSTANCES" CITED BY THE COURT IS
THE EXISTENCE OF THE "TAINT" ISSUE, WHICH THE COURT FINDS IT DESIRABLE
TO REMAND TO THE STATE COURTS.  AS HAS BEEN NOTED, I CAN PERCEIVE NO
DIFFICULTIES WHICH WOULD JUSTIFY A REMAND. 

THE SECOND OF THE "SPECIAL CIRCUMSTANCES" RELIED ON BY THE COURT IS
THAT "IN THIS CASE THE (STATE COURTS) DECIDED NOT TO APPLY THE
CONCURRENT SENTENCE RULE" AND REACHED THE "DOUBLE JEOPARDY" ISSUE
THEMSELVES.  SEE ANTE, AT 792.  THE COURT CONCLUDES THAT "(SINCE (THE
MARYLAND COURTS) DECIDED THIS FEDERAL CONSTITUTIONAL QUESTION, WE SEE
NO REASON WHY WE SHOULD NOT DO SO AS WELL."  SEE ANTE, AT 792-793. 
THIS REASONING BAFFLES ME.  IN DETERMINING WHETHER OR NOT TO REACH A
CONSTITUTIONAL ISSUE THE DECISION OF WHICH IS NOT ABSOLUTELY NECESSARY
TO THE DISPOSITION OF A CASE, THIS COURT HAS LONG BEEN GUIDED BY THE
RULE THAT "(WHERE A CASE . . . CAN BE DECIDED WITHOUT REFERENCE TO
QUESTIONS ARISING UNDER THE FEDERAL CONSTITUTION, THAT COURSE IS
USUALLY PURSUED AND IS NOT DEPARTED FROM WITHOUT IMPORTANT REASONS." 
SILER V. LOUISVILLE & N.R. CO., 213 U.S. 175, 193 (1909); SEE ASHWANDER
V. TVA, 297 U.S. 288, 345 (1936) (BRANDEIS, J., CONCURRING).  IN
DECIDING WHETHER SUCH "IMPORTANT REASONS" EXIST, THIS COURT HAS NEVER
REGARDED ITSELF AS BOUND TO REACH THE CONSTITUTIONAL ISSUE MERELY
BECAUSE THE COURT BELOW DID SO, AND HAS OFTEN DECLINED TO PASS UPON
CONSTITUTIONAL QUESTIONS EVEN THOUGH FULLY CANVASSED BY THE LOWER
COURT.  /10/  ON SOME OF THESE OCCASIONS, THE COURT HAS RELIED IN
JUSTIFICATION UPON THE CONCURRENT SENTENCE DOCTRINE.  /11/ 

SINCE I CANNOT BELIEVE THAT THE COURT WISHES AS A GENERAL MATTER TO
ABANDON THE SALUTARY AND WELL-ESTABLISHED PRINCIPLE OF DECLINING TO
RULE ON CONSTITUTIONAL QUESTIONS IN ADVANCE OF NECESSITY, AND SINCE I
FIND THE "TAINT" ISSUE ENTIRELY FREE OF THE COMPLEXITIES WHICH THE
COURT CLAIMS TO PERCEIVE, I CANNOT HELP BUT CONCLUDE THAT THE REAL
REASON FOR REACHING THE "DOUBLE JEOPARDY" ISSUE IN THIS CASE IS THE
COURT'S EAGERNESS TO SEE THAT PROVISION "INCORPORATED" INTO THE
FOURTEENTH AMENDMENT AND THUS MADE APPLICABLE AGAINST THE STATES. 

    D. 

AS HAS BEEN SHOWN, THIS CASE SATISFIES BOTH PRECONDITIONS TO
APPLICATION OF THE CONCURRENT SENTENCE DOCTRINE.  RELIANCE UPON THAT
DOCTRINE WOULD ENABLE THE COURT TO AVOID DECISION OF A SUBSTANTIAL
CONSTITUTIONAL QUESTION.  ACCORDINGLY, I WOULD APPLY THE CONCURRENT
SENTENCE RULE AND DECLINE TO REVIEW PETITIONER'S LARCENY CONVICTION. 
SINCE THE CASE WAS BROUGHT HERE ON A WRIT OF CERTIORARI LIMITED TO THE
"DOUBLE JEOPARDY" QUESTION, DECISION OF WHICH WOULD AFFECT ONLY THE
LARCENY CONVICTION, I WOULD DISMISS THE WRIT AS IMPROVIDENTLY GRANTED. 

    II. 

HAVING CONCLUDED THAT THE WRIT SHOULD BE DISMISSED, I WOULD
ORDINARILY NOT GO FURTHER.  HOWEVER, AS INDICATED AT THE OUTSET, I FEEL
IMPELLED TO CONTINUE WITH SOME OBSERVATIONS RESPECTING WHAT CAN ONLY BE
REGARDED AS A COMPLETE OVERRULING OF ONE OF THIS COURT'S TRULY GREAT
DECISIONS, AND WITH AN EXPRESSION OF MY VIEWS AS TO HOW PETITIONER'S
CLAIM RESPECTING HIS RETRIAL FOR LARCENY SHOULD FARE UNDER THE
TRADITIONAL DUE PROCESS APPROACH. 

        A. 

I WOULD HOLD, IN ACCORDANCE WITH PALKO V. CONNECTICUT, 302 U.S. 319
(1937), THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES
NOT TAKE OVER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH, AS SUCH.  TODAY
PALKO BECOMES ANOTHER CASUALTY IN THE SO FAR UNCHECKED MARCH TOWARD
"INCORPORATING" MUCH, IF NOT ALL, OF THE FEDERAL BILL OF RIGHTS INTO
THE DUE PROCESS CLAUSE.  THIS MARCH BEGAN, WITH A COURT MAJORITY, IN
1961 WHEN MAPP V. OHIO, 367 U.S. 643, WAS DECIDED AND, BEFORE THE
PRESENT DECISION, FOUND ITS LAST STOPPING POINT IN DUNCAN V. LOUISIANA,
391 U.S. 145 (1968), DECIDED AT THE END OF LAST TERM.  I HAVE AT EACH
STEP IN THE MARCH EXPRESSED MY OPPOSITION, SEE, E.G., MY OPINIONS IN
MAPP V. OHIO, SUPRA, AT 672 (DISSENTING); KER V. CALIFORNIA, 374 U.S.
23, 44 (1963) (CONCURRING IN RESULT); MALLOY V. HOGAN, 378 U.S. 1 14
(1964) (DISSENTING); POINTER V. TEXAS, 380 U.S. 400, 408 (1965)
(CONCURRING IN RESULT); GRIFFIN V. CALIFORNIA, 380 U.S. 609, 615 (1965)
(CONCURRING); KLOPFER V. NORTH CAROLINA 386 U.S. 213, 226 (1967)
(CONCURRING IN RESULT); AND DUNCAN V. LOUISIANA, SUPRA, AT 171
(DISSENTING); MORE PARTICULARLY IN THE DUNCAN CASE I UNDERTOOK TO SHOW
THAT THE "SELECTIVE INCORPORATION" DOCTRINE FINDS NO SUPPORT EITHER IN
HISTORY OR IN REASON.  /12/  UNDER THE PRESSURES OF THE CLOSING DAYS OF
THE TERM, I AM CONTENT TO REST ON WHAT I HAVE WRITTEN IN PRIOR
OPINIONS, SAVE TO RAISE MY VOICE AGAIN IN PROTEST AGAINST A DOCTRINE
WHICH SO SUBTLY, YET PROFOUNDLY, IS ERODING MANY OF THE BASICS OF OUR
FEDERAL SYSTEM. 

MORE BROADLY, THAT THIS COURT SHOULD HAVE APPRENTLY BECOME SO
IMPERVIOUS TO THE PERVASIVE WISDOM OF THE CONSTITUTIONAL PHILOSOPHY
EMBODIED IN PALKO, AND THAT IT SHOULD HAVE FELT ITSELF ABLE TO
ATTRIBUTE TO THE PERCEPTIVE AND TIMELESS WORDS OF MR. JUSTICE CARDOZO
NOTHING MORE THAN A "WATERING DOWN" OF CONSTITUTIONAL RIGHTS, ARE
INDEED REVEALING SYMBOLS OF THE EXTENT TO WHICH WE ARE WEIGHING ANCHORS
FROM THE FUNDAMENTALS OF OUR CONSTITUTIONAL SYSTEM. 

        B. 

FINALLY, HOW SHOULD THE VALIDITY OF PETITIONER'S LARCENY CONVICTION
BE JUDGED UNDER PALKO, THAT IS, UNDER DUE PROCESS STANDARDS? 

A BRIEF RECAPITULATION OF THE FACTS FIRST SEEMS ADVISABLE. 
PETITIONER WAS INDICTED AND TRIED SIMULTANEOUSLY FOR BURGLARY AND
LARCENY.  HE WAS ACQUITTED OF LARCENY BUT CONVICTED OF BURGLARY. 
PETITIONER APPEALED, AND THE MARYLAND COURTS REMANDED IN LIGHT OF
EARLIER MARYLAND DECISIONS HOLDING INVALID A PROVISION OF THE MARYLAND
CONSTITUTION REQUIRING THAT GRAND AND PETIT JURORS DECLARE THEIR BELIEF
IN GOD.  PETITIONER WAS GIVEN THE OPTION EITHER OF ACCEPTING THE RESULT
OF HIS TRIAL OR OF DEMANDING RE-INDICTMENT AND RETRIAL.  HE CHOSE TO
ATTACK THE INDICTMENT, WAS RE-INDICTED AND RETRIED FOR BOTH LARCENY AND
BURGLARY, AND WAS CONVICTED OF BOTH OFFENSES. 

THE PRINCIPLE THAT AN ACCUSED SHOULD NOT BE TRIED TWICE FOR THE SAME
OFFENSE IS DEEPLY ROOTED IN ANGLO-AMERICAN LAW.  /13/  IN THIS COUNTRY,
IT IS PRESENTLY EMBODIED IN THE FIFTH AMENDMENT TO THE FEDERAL
CONSTITUTION AND IN THE CONSTITUTION OR COMMON LAW OF EVERY STATE. 
/14/  THE PALKO COURT FOUND IT UNNECESSARY TO DECIED "(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 . . . ."  302 U.S.,AT 328.  HOWEVER, I HAVE NO HESITATION IN
STATING THAT IT WOULD BE A DENIAL OF DUE PROCESS AT LEAST FOR A STATE
TO RETRY ONE PREVIOUSLY ACQUITTED FOLLOWING AN ERRORLESS TRIAL.  THE
IDEA THAT THE STATE'S INTEREST IN CONVICTING WRONGDOERS IS ENTIRELY
SATISFIED BY ONE FAIR TRIAL ENDING IN AN ACQUITTAL, AND THAT THE
ACCUSED'S INTEREST IN REPOSE MUST THEREAFTER BE GIVEN PROCEDENCE, IS
UNDUBITABLY A "'PRINCIPLE OF JUSTICE SO ROOTED IN THE TRADITIONS AND
CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS FUNDAMENTAL.'"  ID., AT
325. 

THE SITUATION IN THIS CASE IS NOT QUITE SO SIMPLE.  HAD PETITIONER
NOT APPEALED HIS BURGLARY CONVICTION, THE STATE WOULD SURELY HAVE
ALLOWED HIM TO REST ON HIS LARCENY ACQUITTAL AND MERELY SERVE OUT HIS
BURGLARY SENTENCE.  HOWEVER, THE STATE ARGUES THAT THE BURGLARY AND
LARCENY COUNTS WERE ORIGINALLY CONTAINED IN A SINGLE INDICTMENT; THAT
UPON PETITIONER'S APPEAL THE INDICTMENT WAS DECLARED TOTALLY VOID AND
THE TRIAL COURT FOUND TO HAVE LACKED JURISDICTION; AND THAT THE STATE
COULD THEN PROCEED AS IF THERE HAD NEVER BEEN A PREVIOUS INDICTMENT OR
TRIAL. 

THE STATE'S CONTENTION THAT PETITIONER'S FIRST TRIAL WAS A COMPLETE
NULLITY BECAUSE THE TRIAL COURT "LACKED JURISDICTION" IS UNCONVINCING. 
AS HAS BEEN NOTED, IT APPEARS THAT THE STATE WOULD WILLINGLY HAVE SEEN
PETITIONER SERVE OUT THE BURGLARY SENTENCE IMPOSED IN CONSEQUENCE OF
THAT TRIAL.  UNDER STATE PROCEDURE, PETITIONER COULD AVAIL HIMSELF OF
THE "JURISDICTIONAL" DEFECT ONLY BY APPEALING HIS CONVICTION.  THE
CRUCIAL ISSUE, THEREFORE, IS WHAT LEGITIMATE INTEREST HAD THE STATE IN
COMPELLING PETITIONER TO JEOPARDIZE HIS LARCENY ACQUITTAL AS A
CONDITION OF APPEALING HIS BURGLARY CONVICTION? 

I CAN PERCEIVE NO LEGITIMATE STATE INTEREST.  CERTAINLY IT IS THE
PUREST FICTION TO SAY THAT BY APPEALING HIS BURGLARY CONVICTION
PETITIONER "WAIVED" HIS RIGHT NOT TO BE RETRIED FOR LARCENY OR
"CONSENTED" TO RETRIAL ON THAT CHARGE.  THE NOTION OF "WAIVER" WAS
FIRST EMPLOYED IN UNITED STATES V. BALL, 163 U.S. 662 (1896), TO
JUSTIFY RETRIAL OF AN ACCUSED FOR THE SAME OFFENSE FOLLOWING REVERSAL
OF A CONVICTION ON APPEAL.  THE "WAIVER" DOCTRINE WAS MORE FULLY
ARTICULATED IN TRONO V. UNITED STATES, 199 U.S. 521 (1905), WHERE IT
WAS HELD THAT RETRIAL AND CONVICTION FOR MURDER FOLLOWING A SUCCESSFUL
APPEAL FROM A MANSLAUGHTER CONVICTION DID NOT VIOLATE THE DOUBLE
JEOPARDY CLAUSE.  /15/  TRONO APPARENTLY DICTATED THE RESULT IN
BRANTLEY V. GEORGIA, 217 U.S. 284 (1910), IN WHICH THE COURT HELD IN A
BRIEF PER CURIAM, WITHOUT CITING ANY AUTHORITY, THAT A GEORGIA RETRIAL
AND CONVICTION FOR MURDER FOLLOWING THE REVERSAL ON APPEAL OF AN
EARLIER MANSLAUGHTER CONVICTION DID NOT AMOUNT TO "A CASE OF TWICE IN
JEOPARDY UNDER ANY VIEW OF THE CONSTITUTION OF THE UNITED STATES." 
ID., AT 285.  /16/  WE HAVE SINCE RECOGNIZED THAT THE "WAIVER"
RATIONALE IS A "CONCEPTUAL ABSTRACTION" WHICH OBSCURES RATHER THAN
ILLUMINATES THE UNDERLYING CLASH OF SOCIETAL AND INDIVIDUAL INTERESTS. 
SEE UNITED STATES V. TATEO, 377 U.S. 463, 466 (1964).  ACCORDINGLY, I
DO NOT THINK THAT THE REASONING IN TRONO OR THE APPARENT HOLDING IN
BRANTLEY, INSOFAR AS THEY WOULD REQUIRE AFFIRMANCE OF PETITIONER'S
LARCENY CONVICTION, CAN ANY LONGER BE REGARDED AS GOOD LAW. 

NOR DID THE STATE IN THE PRESENT CASE HAVE THE SORTS OF INTERESTS
WHICH HAVE BEEN HELD TO JUSTIFY RETRIAL FOR THE SAME OFFENSE AFTER A
CONVICTION HAS BEEN REVERSED ON APPEAL BY THE ACCUSED AND IN THE MORE
UNUSUAL CASE WHEN AN ACQUITTAL HAS BEEN SET ASIDE FOLLOWING AN APPEAL
BY THE STATE.  /17/  WHEN THE ACCUSED HAS OBTAINED A REVERSAL ON
APPEAL, THE SOCIETAL INTEREST IN CONVICTING THE GUILTY HAS BEEN DEEMED
TOO WEIGHTY TO PERMIT EVERY SUCH ACCUSED TO BE "GRANTED IMMUNITY FROM
PUNISHMENT BECAUSE OF ANY DEFECT SUFFICIENT TO CONSTITUTE REVERSIBLE
ERROR IN THE PROCEEDINGS LEADING TO CONVICTION."  UNITED STATES V.
TATEO, SUPRA, AT 466.  THE RATIONALE FOR ALLOWING THE STATE TO APPEAL
AN ACQUITTAL HAS BEEN THAT THE STATE, LIKE THE ACCUSED, IS ENTITLED TO
ASSURE ITSELF OF A TRIAL "FREE FROM THE CORROSION OF SUBSTANTIAL LEGAL
ERROR" WHICH MIGHT HAVE PRODUCED AN ADVERSE VERDICT.  SEE PALKO V.
CONNECTICUT, SUPRA, AT 328.  /18/ 

IN THE PRESENT CASE, THE STATE DID NOT APPEAL, AND THE DEFECT IN THE
COMPOSITION OF THE GRAND JURY COULD NOT HAVE AFFECTED PETITIONER'S
SUBSEQUENT ACQUITTAL AT TRIAL.  SOCIETY'S LEGITIMATE INTEREST IN
PUNISHING WRONGDOERS COULD HAVE BEEN FULLY VINDICATED BY RETRYING
PETITIONER ON THE BURGLARY COUNT ALONE, THAT BEING THE OFFENSE OF WHICH
HE WAS PREVIOUSLY CONVICTED.  THE STATE HAD NO MORE INTEREST IN
COMPELLING PETITIONER TO STAND TRIAL AGAIN FOR LARCENY, OF WHICH HE HAD
BEEN ACQUITTED, THAN IN RETRYING ANY OTHER PERSON DECLARED INNOCENT
AFTER AN ERROR-FREE TRIAL.  HIS RETRIAL ON THE LARCENY COUNT THEREFORE,
IN MY OPINION, DENIED DUE PROCESS, AND ON THAT GROUND REVERSAL WOULD BE
CALLED FOR UNDER PALKO. 

/1/  SEE MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIA 20-23. 
COUNSEL FOR THE GOVERNMENT ESTIMATED DURING ORAL ARGUMENT THAT THE
CONCURRENT SENTENCE DOCTRINE IS EMPLOYED IN THE DISPOSITION OF ABOUT
10% OF ALL FEDERAL CRIMINAL APPEALS. 

/2/  SEE, E.G., CARRINGTON, CROWDED DOCKETS AND THE COURTS OF
APPEALS:  THE THREAT TO THE FUNCTION OF REVIEW AND THE NATIONAL LAW, 82
HARV.L.REV.  542 (1969). 

/3/  LIKE THE COURT, SEE ANTE, AT 791, N. 7, I EXPRESS NO VIEW ON
THE QUESTION WHETHER COLLATERAL CONSEQUENCES MAY CONSTITUTIONALLY BE
IMPOSED ON ACCOUNT OF A CONVICTION WHICH WAS DENIED REVIEW ON DIRECT
APPEAL BECAUSE OF THE CONCURRENT SENTENCE DOCTRINE. 

/4/  THIS COURT SAID IN DICTUM IN HOAG V. NEW JERSEY, 356 U.S. 464,
471 (1958):  "DESPITE ITS WIDE EMPLOYMENT, WE ENTERTAIN GRAVE DOUBTS
WHETHER COLLATERAL ESTOPPEL CAN BE REGARDED AS A CONSTITUTIONAL
REQUIREMENT.  CERTAINLY THIS COURT HAS NEVER SO HELD."  SEE ALSO ID.,
AT 470-471; SEALFON V. UNITED STATES, 332 U.S. 575 (1948); UNITED
STATES V. OPPENHEIMER, 242 U.S. 85, 88 (1916). 

/5/  SEE ALSO RESTATEMENT, JUDGMENTS SEC. 68(1). 

/6/  THE COURT ALSO SUGGESTS THAT THE CONCURRENT SENTENCE DOCTRINE
SHOULD NOT BE APPLIED FOR THE ADDITIONAL REASON THAT THE EVENTUAL
LENGTH OF PETITIONER'S BURGLARY SENTENCE IS "STILL IN SOME DOUBT."  SEE
ANTE, AT 793.  PETITIONER RECEIVED A 10-YEAR SENTENCE FOLLOWING HIS
FIRST BURGLARY CONVICTION AND A 15-YEAR SENTENCE AFTER HIS SECOND
CONVICTION.  THE LATTER SENTENCE WAS SUBSEQUENTLY VACATED AND
RESENTENCING ORDERED BY A FEDERAL DISTRICT COURT.  SEE BENTON V.
COPINGER, 291 F.SUPP.  141 (1968).  THE STATE HAS APPEALED.  WHATEVER
THE OUTCOME OF THAT APPEAL, I CONSIDER THAT THE PROBABILITY OF
PETITIONER'S BURGLARY SENTENCE BEING REDUCED BELOW FIVE YEARS, SO AS TO
MAKE THE CONCURRENT SENTENCE DOCTRINE INOPERATIVE, IS MANIFESTLY
NEGLIGIBLE. 

/7/  CF., E.G., SIBRON V. NEW YORK, 392 U.S. 40, 55-56 (1968). 

/8/  SEE SUPPLEMENTARY BRIEF FOR RESPONDENT 20, N. 6. 

/9/  SO FAR AS I HAVE BEEN ABLE TO DISCOVER, THERE IS NO STATE IN
WHICH PETITIONER'S LARCENY CONVICTION COULD HAVE HABITUAL OFFENDER
CONSEQUENCES. 

/10/  SEE, E.G., CICHOS V. INDIANA, 385 U.S. 76 (1966); HAMM V. CITY
OF ROCK HILL, 379 U.S. 306 (1964); BELL V. MARYLAND, 378 U.S. 226
(1964); MACHINISTS V. STREET, 367 U.S. 740 (1961); RICE V. SIOUX CITY
CEMETERY; 349 U.S. 70 (1955). 

/11/  SEE, E.G., UNITED STATES V. GAINEY, 380 U.S. 63 (1965);
BARENBLATT V. UNITED STATES, 360 U.S. 109 (1959). 

/12/  IN THE INTEREST OF STRICT ACCURACY, IT SHOULD BE POINTED OUT
THAT MR. JUSTICE STEWART CANNOT AND DOES NOT FULLY JOIN IN THE ABOVE
SENTENCE OF THIS OPINION.  HE JOINED MY DISSENTING OPINION IN DUNCAN V.
LOUISIANA, SUPRA, BUT WROTE A SEPARATE MEMORANDUM IN MAPP V. OHIO,
SUPRA, AT 672; JOINED THE OPINION OF MR. JUSTICE CLARK IN KER V.
CALIFORNIA, SUPRA; JOINED MR. JUSTICE WHITE'S DISSENTING OPINION IN
MALLOY V. HOGAN, SUPRA, AT 33; WROTE AN OPINION CONCURRING IN THE
RESULT IN POINTER V. TEXAS, SUPRA, AT 409; WROTE A DISSENTING OPINION
IN GRIFFIN V. CALIFORNIA, SUPRA, AT 617; AND SEPARATELY CONCURRED IN
THE RESULT IN KLOPFER V. NORTH CAROLINA, SUPRA, AT 226. 

/13/  THE "DOUBLE JEOPARDY" CONCEPT HAS BEEN AN ESTABLISHED PART OF
THE ENGLISH COMMON LAW SINCE AT LEAST 1700, AND WAS CONTAINED IN THE
CONSTITUTIONS OR COMMON LAW OF MANY AMERICAN JURISDICTIONS PRIOR TO
1787.  SEE J. SIGLER, DOUBLE JEOPARDY 1-37 (1969); BARTKUS V. ILLINOIS,
359 U.S. 121, 151-155 (1959) (BLACK, J., DISSENTING). 

/14/  SEE SIGLER, SUPRA, AT 77-117. 

/15/  IN THE FEDERAL REALM, THE TRONO DECISION WAS, OF COURSE,
LIMITED TO ITS "PECULIAR FACTUAL SETTING" BY GREEN V. UNITED STATES,
355 U.S. 184, 197 (1957), IN WHICH I JOINED THE DISSENTING OPINION OF
MR. JUSTICE FRANKFURTER, ID., AT 198.  MR. JUSTICE STEWART WAS NOT A
MEMBER OF THE COURT AT THE TIME GREEN WAS DECIDED. 

/16/  TRONO WAS THE ONLY FEDERAL DECISION CITED BY THE STATE OF
GEORGIA IN ITS BRIEF IN BRANTLEY. 

/17/  FOR MORE DETAILED ANALYSES OF THESE INTERESTS, SEE GENERALLY
MAYERS & YARBROUGH, BIS VEXARI:  NEW TRIALS AND SUCCESSIVE
PROSECUTIONS, 74 HARV.L.REV.  1 (1960); VAN ALSTYNE, IN GIDEON'S WAKE:
HARSHER PENALTIES AND THE "SUCCESSFUL" CRIMINAL APPELLANT, 74 YALE L.J.
606 (1965); COMMENT, TWICE IN JEOPARDY, 75 YALE L.J. 262 (1965); NOTE,
DOUBLE JEOPARDY:  THE REPROSECUTION PROBLEM, 77 HARV.L.REV.  1272
(1964). 

/18/ HOWEVER, IN THE FEDERAL SYSTEM IT HAS BEEN HELD THAT THE
GOVERNMENT MAY NOT APPEAL FROM AN ACQUITTAL WITHOUT PLACING THE ACCUSED
"A SECOND TIME IN JEOPARDY FOR THE SAME OFFENSE."  KEPNER V. UNITED
STATES, 195 U.S. 100, (1904).  SEE ALSO ID., AT 134-137 (HOLMES, J.,
DISSENTING). 

M. MICHAEL CRAMER ARGUED THE CAUSE FOR PETITIONER ON THE ORIGINAL
ARGUMENT AND ON THE REARGUMENT.  WITH HIM ON THE BRIEFS WERE H. THOMAS
SISK, LAURENCE LEVITAN, AND PAUL H. WEINSTEIN. 

FRANCIS B. BURCH, ATTORNEY GENERAL OF MARYLAND, ARGUED THE CAUSE FOR
RESPONDENT ON THE REARGUMENT.  WITH HIM ON THE BRIEFS WAS EDWARD F.
BORGERDING, FIRST ASSISTANT ATTORNEY GENERAL.  MR. BORGERDING ARGUED
THE CAUSE FOR RESPONDENT ON THE ORIGINAL ARGUMENT.  WITH HIM ON THE
BRIEF WAS MR. BURCH. 

PETER L. STRAUSS ARGUED THE CAUSE FOR THE UNITED STATES ON THE
REARGUMEN?  AS AMICUS CURIAE.  WITH HIM ON THE BRIEF WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON, BEATRICE
ROSENBERG, AND RONALD L. GAINER. 
..END :







VON CLEEF V. NEW JERSEY, 395 U.S. 814 


       VON CLEEF ET AL. V. NEW JERSEY. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR COURT OF

     NEW JERSEY. 

        NO. 837.  DECIDED JUNE 23, 1969. 


PETITIONER VON CLEEF WAS ARRESTED ON THE THIRD FLOOR OF A 16-ROOM
HOUSE IN WHICH SHE LIVED.  POLICE, WITHOUT A SEARCH WARRANT, THEN
SEARCHED THE ENTIRE HOUSE AND SEIZED SEVERAL THOUSAND ARTICLES, MANY OF
WHICH WERE INTRODUCED AT TRIAL.  THE NEW JERSEY COURTS CONCLUDED THAT
THE SEARCH AND SEIZURES WERE CONSTITUTIONALLY PERMISSIBLE AS INCIDENT
TO A VALID ARREST.  HELD:  IT IS NOT NECESSARY TO DECIDE WHETHER CHIMEL
V. CALIFORNIA, ANTE, P. 752, APPLIES RETROACTIVELY, AS THE SCOPE OF THE
SEARCH AND SEIZURES HERE WAS "BEYOND THE SANCTION OF ANY" PREVIOUS
DECISION, KREMEN V. UNITED STATES, 353 U.S. 346, 347. 

CERTIORARI GRANTED; 102 N.J.SUPER.  102, 245 A.2D 495, REVERSED AND
REMANDED. 

PER CURIAM. 

THE PETITIONERS WERE CONVICTED IN A NEW JERSEY TRIAL COURT OF
CONSPIRING TO MAINTAIN A BUILDING FOR PURPOSES OF LAWDNESS AND TO
COMMIT ACTS OF LEWDNESS, N.J. REV. STAT. SECS. 2A:98-1, 2A:133-2,
2A:115-1; PERMITTING A BUILDING TO BE USED FOR PURPOSES OF LEWDNESS,
N.J. REV. STAT. SEC. 2A:133-2(B); AND POSSESSING WITH INTENT TO UTTER
OBSCENE PUBLICATIONS, N.J. REV. STAT. SEC. 2A:115-2.  THEIR CONVICTIONS
WERE AFFIRMED BY THE SUPERIOR COURT, APPELLATE DIVISION, 102
N.J.SUPER.  102, 245 A.2D 495, AND THE SUPREME COURT OF NEW JERSEY
DENIED REVIEW, 52 N.J. 499, 246 A.2D 456.  THE PETITIONERS MAKE SEVERAL
ARGUMENTS, BUT THEIR PRINCIPAL CONTENTION IS THAT EVIDENCE INTRODUCED
AT THEIR TRIAL WAS SECURED IN VIOLATION OF THE FOURTH AND FOURTEENTH
AMENDMENTS. 

PETITIONER VON CLEEF WAS ARRESTED ON THE THIRD FLOOR OF A 16-ROOM
HOUSE IN WHICH SHE AND PETITIONER BEARD LIVED.  ALTHOUGH NO SEARCH
WARRANT HAD BEEN ISSUED, SEVERAL POLICEMEN PROCEEDED TO SEARCH THE
ENTIRE HOUSE FOR A PERIOD OF ABOUT THREE HOURS.  THEY EVENTUALLY SEIZED
SEVERAL THOUSAND ARTICLES, INCLUDING BOOKS, MAGAZINES, CATALOGUES,
MAILING LISTS, PRIVATE CORRESPONDENCE (BOTH OPENED AND UNOPENED),
PHOTOGRAPHS, DRAWINGS, AND FILM.  THE PETITIONERS' MOTION TO SUPPRESS
WAS DENIED, AND "A CONSIDERABLE NUMBER"  OF THE ITEMS SEIZED WERE
INTRODUCED INTO EVIDENCE BY THE PROSECUTION AND "COMMENTED UPON BY
SEVERAL WITNESSES DURING THE TRIAL."  102 N.J.SUPER.,AT 109, 245 A.2D,
AT 499. 

THE PETITIONERS ATTACK THE NEW JERSEY COURTS' CONCLUSION THAT THE
SEARCH AND SEIZURES DESCRIBED ABOVE WERE CONSTITUTIONALLY PERMISSIBLE
AS BEING INCIDENT TO A VALID ARREST.  THIS CHALLENGE WOULD
UNQUESTIONABLY BE WELL FOUNDED IF TODAY'S DECISION IN CHIMEL V.
CALIFORNIA, ANTE, P. 752, WERE GIVEN RETTROACTIVE APPLICATION.  BUT WE
NEED NOT DECIDE HERE WHETHER CHIMEL SHOULD BE APPLIED RETROACTIVELY. 
FOR EVEN UNDER THE CONSTITUTIONAL STANDARDS PREVAILING BEFORE CHIMEL,
SEE UNITED STATES V. RABINOWITZ, 339 U.S. 56; HARRIS V. UNITED STATES,
331 U.S. 145, THE SEARCH AND SEIZURES INVOLVED HERE WERE
CONSTITUTIONALLY INVALID. 

NEW JERSEY RELIES PRIMARILY ON UNITED STATES V. RABINOWITZ, SUPRA,
IN WHICH THIS COURT UPHELD THE SEARCH OF A ONE-ROOM BUSINESS OFFICE AND
THE SEIZURE OF 573 STAMPS WITH FORGED OVERPRINTS.  BUT THE COURT'S
OPINION IN RABINOWITZ SPECIFICALLY REFERRED TO THE FACTORS THAT WERE
THOUGHT TO MAKE THE SEARCH IN THAT CASE REASONABLE: 

"(1) THE SEARCH AND SEIZURE WERE INCIDENT TO A VALID ARREST; (2) THE
PLACE OF THE SEARCH WAS A BUSINESS ROOM TO WHICH THE PUBLIC, INCLUDING
THE OFFICERS, WAS INVITED; (3) THE ROOM WAS SMALL AND UNDER THE
IMMEDIATE AND COMPLETE CONTROL OF RESPONDENT; (4) THE SEARCH DID NOT
EXTEND BEYOND THE ROOM USED FOR UNLAWFUL PURPOSES; (5) THE POSSESSION
OF THE FORGED AND ALTERED STAMPS WAS A CRIME, JUST AS IT IS A CRIME TO
POSSESS BURGLARS' TOOLS, LOTTERY TICKETS OR COUNTERFEIT MONEY."  339
U.S.,AT 64.  ALTHOUGH THE ARREST OF PETITIONER VON CLEEK MAY FOR OUR
PURPOSES BE ASSUMED TO HAVE BEEN LAWFUL (THE PETITIONERS ARGUE THAT IT
WAS NOT), THE FACTUAL CIRCUMSTANCES HERE ARE OTHERWISE QUITE DIFFERENT
FROM THOSE OF RABINOWITZ.  EVEN THE FACTS OF HARRIS V. UNITED STATES,
SUPRA-- IN WHICH THE SEARCH OF A FOUR-ROOM APARTMENT AND THE SEIZURE OF
AN ENVELOPE CONTAINING ALTERED SELECTIVE SERVICE DOCUMENTS WERE
SUSTAINED ON THE GROUND THAT THEY WERE CONTEMPORANEOUS WITH A LAWFUL
ARREST-- ARE A FAR CRY FROM THOSE OF THIS CASE.  WHILE RABINOWITZ MADE
THE PRINCIPLES GOVERNING SEARCHES ACCOMPANYING ARRESTS UNFORTUNATELY
HAZY, SEE CHIMEL V. CALIFORNIA, SUPRA, AT 766, WE HAVE NO HESITATION IN
CONCLUDING THAT THE ACTION OF THE POLICE HERE IN COMBING A THREE-STORY,
16-ROOM HOUSE FROM TOP TO BOTTOM AND CARTING AWAY SEVERAL THOUSAND
PAPERS, PUBLICATIONS, AND OTHER ITEMS CANNOT UNDER ANY VIEW OF THE
FOURTH AMENDMENT BE JUSTIFIED AS "INCIDENT TO ARREST."  LIKE THE SEARCH
AND "MASS SEIZURE" IN KREMEN V. UNITED STATES, 353 U.S. 346, SEE ABEL
V. UNITED STATES, 362 U.S. 217, 239, SUCH ACTION IS SIMPLY "BEYOND THE
SANCTION OF ANY OF OUR CASES."  353 U.S.,AT 347. 

ACCORDINGLY, THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE
JUDGMENT BELOW IS REVERSED, AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE CONCUR IN GRANTING
CERTIORARI BUT DISSENT FROM REVERSAL OF THE JUDGMENT AND REMAND OF THE
CASE WITHOUT A HEARING. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

UNFORTUNATELY, I REMAIN UNCONVINCED THAT THE SEARCH IN THIS CASE MAY
BE PROPERLY DISTINGUISHED FROM THE SEARCH TOLERATED BY THE COURT IN
HARRIS V. UNITED STATES, 331 U.S. 145 (1947).  NOR DO I BELIEVE THAT
OUR DECISION IN KREMEN V. UNITED STATES, 353 U.S. 346 (1957) PROSCRIBES
THIS SEARCH.  KREMEN SIMPLY PROHIBITS THE POLICE FROM SEIZING THE
ENTIRE CONTENTS OF A BUILDING INDISCRIMINATELY, WITHOUT CONSIDERING
WHETHER THE PROPERTY THEY TAKE IS RELEVANT TO THE CRIME UNDER
INVESTIGATION; IT DOES NOT BAR THE REMOVAL OF ALL PROPERTY THAT MAY
REASONABLY BE CONSIDERED EVIDENCE OF CRIME.  THE APPELLATE DIVISION OF
THE NEW JERSEY SUPERIOR COURT PROPERLY FOUND THAT THE POLICE IN THE
CASE BEFORE US DID NOT ENGAGE IN THE PRACTICE CONDEMNED IN KREMEN:
"(THE SEARCH WAS EXTENSIVE, BUT UNDER THE CIRCUMSTANCES IT WAS
REASONABLE . . . THE ITEMS SEARCHED FOR AND SEIZED RELATED TO THE
CRIMINAL OPERATION FOR WHICH THE ARREST HAD BEEN MADE."  SURELY, THERE
IS NO REASON TO CONDEMN A SEARCH AS RESULTING IN A "MASS SEIZURE"
SIMPLY BECAUSE IT UNCOVERS ABUNDANT EVIDENCE OF WRONGDOING.  AND YET,
THAT IS WHAT THE COURT DOES TODAY IN RELYING ON KREMEN TO DECIDE THIS
CASE. 

CONSEQUENTLY, I AM OBLIGED TO REACH THE QUESTION WHETHER THE
STRICTER FOURTH AMENDMENT STANDARDS ANNOUNCED TODAY IN CHIMEL V.
CALIFORNIA, ANTE,P. 752, GOVERN THIS CASE; FOR IN MY VIEW, IT IS ONLY
IF CHIMEL IS APPLICABLE THAT WE MAY LEGITIMATELY REVERSE THE JUDGMENT
OF THE NEW JERSEY COURTS.  SINCE I HAVE REACHED THE CONCLUSION THAT ALL
CASES STILL SUBJECT TO DIRECT REVIEW BY THIS COURT SHOULD BE GOVERNED
BY ANY "NEW" RULE OF CONSTITUTIONAL LAW ANNOUNCED IN OUR DECISIONS, SEE
MY DISSENT IN DESIST V. UNITED STATES, 394 U.S. 244, 256 (1969), I JOIN
IN THE COURT'S JUDGMENT. 

HERALD PRICE FAHRINGER FOR PETITIONERS. 

PAUL MURPHY FOR RESPONDENT. 
..END :



SHIPLEY V. CALIFORNIA, 395 U.S. 818 


       SHIPLEY V. CALIFORNIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL
OF

CALIFORNIA, SECOND APPELLATE DISTRICT. 

        NO. 540, MISC.  DECIDED JUNE 23, 1969. 


POLICE OFFICERS, INFORMED THAT PETITIONER WAS INVOLVED IN A ROBBERY,
WENT TO HIS RESIDENCE AND IN PETITIONER'S ABSENCE WERE ALLOWED TO ENTER
BY HIS "WIFE" AND SEARCH HER BELONGINGS.  THEY FOUND SOME RINGS TAKEN
BY THE ROBBERS AND THEN "STAKED OUT" THE HOUSE.  WHEN PETITIONER
ARRIVED THE OFFICERS ARRESTED HIM AS HE ALIGHTED FROM HIS CAR, WHICH
WAS PARKED 15 OR 20 FEET FROM THE HOUSE.  THEY SEARCHED PETITIONER AND
THE CAR, AND WITHOUT PERMISSION OR A WARRANT AGAIN SEARCHED THE HOUSE. 
THEY FOUND A JEWELRY CASE STOLEN IN THE ROBBERY, WHICH WAS ADMITTED
INTO EVIDENCE AT PETITIONER'S TRIAL, THE TRIAL COURT HAVING UPHELD THE
SECOND SEARCH AS INCIDENT TO THE ARREST.  PETITIONER WAS CONVICTED, AND
THE APPELLATE COURT AFFIRMED.  HELD:  IT IS NOT NECESSARY TO DECIDE IF
CHIMEL V. CALIFORNIA, ANTE, P. 752, APPLIES RETROACTIVELY, THE SEARCH
CLEARLY HAVING VIOLATED THE FOURTH AMENDMENT AS MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH, SINCE IT HAS NEVER BEEN CONSTITUTIONALLY
PERMISSIBLE FOR THE POLICE, ABSENT AN EMERGENCY, TO ARREST A PERSON
OUTSIDE HIS HOME AND THEN TAKE HIM INSIDE FOR THE PURPOSE OF CONDUCTING
A WARRANTLESS SEARCH.  , CERTIORARI GRANTED; REVERSED AND REMANDED. 

PER CURIAM. 

THE PETITIONER WAS CONVICTED IN CALIFORNIA OF ROBBERY IN THE FIRST
DEGREE, AND THE CONVICTION WAS AFFIRMED BY THE COURT OF APPEAL, SECOND
APPELLATE DISTRICT.  THE CALIFORNIA SUPREME COURT DENIED REVIEW.  THE
PETITIONER SEEKS REVERSAL OF THE JUDGMENT BELOW ON THE GROUND THAT
EVIDENCE INTRODUCED AT HIS TRIAL WAS SEIZED IN VIOLATION OF THE FOURTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.  SINCE WE
AGREE WITH THE PETITIONER THAT THE EVIDENCE WAS TAKEN IN THE COURSE OF
AN UNCONSTITUTIONAL SEARCH OF HIS HOME, THE JUDGMENT OF THE CALIFORNIA
COURT OF APPEAL MUST BE REVERSED.  MAPP V. OHIO, 367 U.S. 643. 

INFORMED THAT THE PETITIONER HAD BEEN INVOLVED IN A ROBBERY, POLICE
OFFICERS WENT TO HIS RESIDENCE.  THE PETITIONER WAS NOT AT HOME, BUT A
15-YEAR-OLD GIRL WHO IDENTIFIED HERSELF AS THE PETITIONER'S WIFE
ALLOWED THE OFFICERS TO ENTER AND SEARCH HER BELONGINGS.  WHEN SEVERAL
RINGS TAKEN BY THE ROBBERS WERE FOUND, THE OFFICERS "STAKED OUT" THE
HOUSE AND AWAITED THE PETITIONER'S RETURN.  UPON HIS ARRIVAL LATE THAT
NIGHT, HE WAS IMMEDIATELY ARRESTED AS HE ALIGHTED FROM HIS CAR.  THE
OFFICERS SEARCHED THE PETITIONER AND THE CAR, AND THEN AGAIN ENTERED
AND SEARCHED THE HOUSE, WHERE THEY DISCOVERED UNDER A COUCH A JEWELRY
CASE STOLEN IN THE ROBBERY.  THE CAR WAS PARKED OUTSIDE THE HOUSE AND
15 OR 20 FEET AWAY FROM IT, AND THE OFFICERS DID NOT REQUEST PERMISSION
TO CONDUCT THE SECOND SEARCH OF THE HOUSE.  NO WARRANT WAS EVER
OBTAINED.  THE TRIAL COURT NEVERTHELESS UPHELD THE SECOND SEARCH ON THE
GROUND THAT IT WAS INCIDENT TO THE PETITIONER'S ARREST, AND THE COURT
OF APPEAL AGREED, HOLDING THAT THE AREA SEARCHED WAS "UNDER THE
(PETITIONER'S) EFFECTIVE CONTROL" AT THE TIME OF THE ARREST. 

UNDER OUR DECISION TODAY IN CHIMEL V. CALIFORNIA, ANTE, P. 752, THE
SEARCH CLEARLY EXCEEDED FOURTH AMENDMENT LIMITATIONS ON SEARCHES
INCIDENT TO ARREST.  BUT EVEN IF CHIMEL WERE TO HAVE NO RETROACTIVE
APPLICATION-- A QUESTION WHICH WE RESERVE FOR A CASE WHICH REQUIRES ITS
RESOLUTION-- THERE IS NO PRECEDENT OF THIS COURT THAT JUSTIFIES THE
SEARCH IN THIS CASE.  THE COURT HAS CONSISTENTLY HELD THAT A SEARCH
"CAN BE INCIDENT TO AN ARREST ONLY IF IT IS SUBSTANTIALLY
CONTEMPORANEOUS WITH THE ARREST AND IS CONFINED TO THE IMMEDIATE
VICINITY OF THE ARREST."  STONER V. CALIFORNIA, 376 U.S. 483, 486.  AT
THE VERY MOST, POLICE OFFICERS HAVE BEEN PERMITTED TO SEARCH A FOUR
ROOM APARTMENT IN WHICH THE ARREST TOOK PLACE.  HARRIS V. UNITED
STATES, 331 U.S. 145.  SEE ALSO UNITED STATES V. RABINOWITZ, 339 U.S.
56.  BUT THE CONSTITUTION HAS NEVER BEEN CONSTRUED BY THIS COURT TO
ALLOW THE POLICE, IN THE ABSENCE OF AN EMERGENCY, TO ARREST A PERSON
OUTSIDE HIS HOME AND THEN TAKE HIM INSIDE FOR THE PURPOSE OF CONDUCTING
A WARRANTLESS SEARCH.  ON THE CONTRARY, "IT HAS ALWAYS BEEN ASSUMED
THAT ONE'S HOUSE CANNOT LAWFULLY BE SEARCHED WITHOUT A SEARCH WARRANT,
EXCEPT AS AN INCIDENT TO A LAWFUL ARREST THEREIN."  AGNELLO V. UNITED
STATES, 269 U.S. 20, 32.  AND IN JAMES V. LOUISIANA, 382 U.S. 36, THE
COURT HELD THAT THE SEARCH OF THE PETITIONER'S HOME AFTER HIS ARREST ON
THE STREET TWO BLOCKS AWAY "CANNOT BE REGARDED AS INCIDENT TO HIS
ARREST."  ID., AT 37.  SINCE THE THOROUGH SEARCH OF THE PETITIONER'S
HOME EXTENDED WITHOUT REASONABLE JUSTIFICATION BEYOND THE PLACE IN
WHICH HE WAS ARRESTED, IT CANNOT BE UPHELD UNDER THE FOURTH AND
FOURTEENTH AMENDMENTS AS INCIDENT TO HIS ARREST.  /1/ 

ACCORDINGLY, THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND
THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED, THE JUDGMENT IS
REVERSED, AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  BECAUSE OF OUR DISPOSITION OF THE CASE ON THIS GROUND, WE FIND
IT UNNECESSARY TO CONSIDER THE CONTENTIONS OF THE PETITIONER THAT HIS
"WIFE" DID NOT VOLUNTARILY CONSENT TO THE FIRST SEARCH, AND THAT THE
OFFICERS LACKED PROBABLE CAUSE TO ARREST THE PETITIONER. 

MR. JUSTICE BLACK CONCURS IN GRANTING CERTIORARI BUT DISSENTS FROM
THE REVERSAL AND REMAND OF THE JUDGMENT WITHOUT A HEARING. 

MR. JUSTICE WHITE, DISSENTING. 

I FOUND INEXPLICABLE THE COURT'S ACCEPTANCE OF THE WARRANTLESS
ARREST IN CHIMEL V. CALIFORNIA, ANTE, P. 752, WHILE AT THE SAME TIME
HOLDING THE CONTEMPORANEOUS SEARCH INVALID WITHOUT CONSIDERING THE
EXIGENCIES CREATED BY THE ARREST ITSELF.  SEE ID., P. 770 (DISSENTING
OPINION).  EVEN MORE MYSTIFYING ARE THE OPINIONS AND THE ORDERS ISSUED
IN THE INSTANT CASE AND SIX OTHERS WHICH HAVE BEEN HELD PENDING THE
DECISION IN CHIMEL:  NO. 837, VON CLEEF V. NEW JERSEY, ANTE, P. 814;
NO. 1097, MISC., HARRIS V. ILLINOIS, POST, P. 985; NO. 1037, MISC.,
MAHONEY V. LAVALLEE, POST, P. 985; NO. 500, SCHMEAR V. GAGNON, POST, P.
978; NO. 550, MISC., JAMISON V. UNITED STATES, POST, P. 986; AND NO.
395, MISC., CHRISMAN V. CALIFORNIA, POST, P. 985.  I FEAR THAT THE
SUMMARY DISPOSITIONS IN THESE CASES, WHICH STRAIN SO HARD TO AVOID
DECIDING THE RETROACTIVITY OF CHIMEL, WILL ONLY MAGNIFY THE CONFUSION
IN THIS IMPORTANT AREA OF THE LAW. 

IT IS PARTICULARLY HARD TO SQUARE THE COURT'S SUMMARY REVERSAL OF
SHIPLEY'S CONVICTION, WHICH INVALIDATES A WARRANTLESS SEARCH OF A HOUSE
WHERE THE ARREST WAS MADE IN A DETACHED GARAGE, WITH THE DENIALS OF
CERTIORARI IN HARRIS AND MAHONEY.  IN HARRIS, THE ARREST OCCURRED IN
THE LOBBY OF A FOUR-STORY APARTMENT BUILDING; THE ENSUING SEARCH
WITHOUT A WARRANT INVOLVED AN APARTMENT ON AN UPPER FLOOR.  THE
CHRONOLOGY WAS REVERSED IN MAHONEY WHERE PETITIONER WAS ARRESTED IN HIS
APARTMENT, BUT THE ACCOMPANYING SEARCH UNCOVERED A GUN IN THE BUILDING
BASEMENT.  THIS CASE, SHIPLEY, PURPORTS TO REST ON PRE-CHIMEL LAW, BUT
CERTIORARI IN HARRIS AND MAHONEY CANNOT BE DENIED WITHOUT ASSUMING THE
NONRETROACTIVITY OF CHIMEL AND THEN DETERMINING THAT THESE CASES DO NOT
DESERVE THE SAME SUMMARY REVERSAL GIVEN TO SHIPLEY.  IN SCHMEAR,
JAMISON, AND CHRISMAN, AS IN CHIMEL, THE COURT FAILS TO FIND A
SUBSTANTIAL ISSUE IN THE WARRANTLESS ARREST AND ITS BEARING ON THE
WARRANTLESS SEARCH.  FINALLY, THE PER CURIAM IN VON CLEEK INVOKES
KREMEN V. UNITED STATES, 353 U.S. 346 (1957), WITHOUT NOTING THAT THE
SEIZURES IN VON CLEEF WERE LIMITED TO EVIDENCE AND INSTRUMENTALITIES OF
THE CRIMES BEING INVESTIGATED AND FOR WHICH THE ARRESTS WERE MADE. 

I JOIN THE GRANT OF CERTIORARI IN THIS CASE BUT DISSENT FROM THE
SUMMARY REVERSAL. 

KATE WHYNER FOR PETITIONER. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, WILLIAM E. JAMES,
ASSISTANT ATTORNEY GENERAL, AND MARVIN A. BAUER, DEPUTY ATTORNEY
GENERAL, FOR RESPONDENT. 
..END :


















ANDERSON V. URBAN RENEWAL AGENCY OF PADUCAH, 395 U.S. 823 


       ANDERSON ET AL. V. URBAN RENEWAL & COMMUNITY DEVELOPMENT

           AGENCY OF PADUCAH, KENTUCKY. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

        NO. 1414.  DECIDED JUNE 23, 1969. 


436 S.W.2D 533, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MICHAEL AVEDISIAN FOR APPELLANTS. 
..END :









PRONER V. UNITED STATES, 395 U.S. 823 


       PRONER V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SECOND CIRCUIT. 

        NO. 1022.  DECIDED JUNE 23, 1969. 


CERTIORARI GRANTED; 405 F.2D 943, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED, AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF BENTON V.
MARYLAND, ANTE, P. 784. 

HARRIS B. STEINBERG FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WALTERS, AND
JOSEPH M. HOWARD FOR THE UNITED STATES. 
..END :






WHITE V. UNITED STATES, 395 U.S. 824 


       WHITE V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

        NO. 1259, MISC.  DECIDED JUNE 23, 1969. 


CERTIORARI GRANTED, 402 F.2D 72, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF BENTON V. MARYLAND, ANTE,
P. 784. 

SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL
KOSSACK, BEATRICE ROSENBERG, AND EDWARD FENIG FOR THE UNITED STATES. 
..END :







BYERS V. CITY OF OKLAHOMA CITY, 395 U.S. 824 


       BYERS V. CITY OF OKLAHOMA CITY ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

          APPEALS OF OKLAHOMA. 

        NO. 652, MISC.  DECIDED JUNE 23, 1969. 


CERTIORARI GRANTED, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA FOR
FURTHER CONSIDERATION IN LIGHT OF WILLIAMS V. OKLAHOMA CITY, ANTE, P.
458. 

GILES K. RATCLIFFE FOR RESPONDENTS. 
..END :








DILLARD V. FAMILY COURT, QUEENS COUNTY, 395 U.S. 825 


       DILLARD V. FAMILY COURT, QUEENS COUNTY, ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF NEW YORK. 

        NO. 1939, MISC.  DECIDED JUNE 23, 1969. 


APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :














MOYA V. DEBACA & CO. CREDIT & COLLECTION AGENCY, 395 U.S. 825 


       MOYA ET UX. V. DEBACA, DBA DEBACA & CO. CREDIT & COLLECTION

           AGENCY, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NEW MEXICO. 

        NO. 996, MISC.  DECIDED JUNE 23, 1969. 


286 F.SUPP.  606, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE HARLAN AND MR. JUSTICE BRENNAN WOULD VACATE THE JUDGMENT
AND REMAND THE CASE IN LIGHT OF SNIADACH V. FAMILY FINANCE CORP. OF BAY
VIEW, ANTE, P. 337. 

WILLIAM G. FITZPATRICK, JR., FOR APPELLANTS. 

CLAUD S. MANN FOR DEBACA ET AL., AND BOSTON E. WITT, ATTORNEY
GENERAL, AND JAMES V. NOBLE, ASSISTANT ATTORNEY GENERAL, FOR THE STATE
OF NEW MEXICO, APPELLEES. 
..END :






















ROSADO V. WYMAN, 395 U.S. 826 


       ROSADO ET AL. V. WYMAN, COMMISSIONER OF SOCIAL SERVICES FOR

           THE STATE OF NEW YORK, ET AL.

  ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SECOND CIRCUIT. 

   NO. 1539.  DECIDED JUNE 23, 1969.  /1/ 


NO. 1539, CERTIORARI BEFORE JUDGMENT DENIED; NO. 1540, APPEAL
DISMISSED. 

PER CURIAM. 

THE MOTIONS OF JOSEPH BARBARO ET AL. AND AMERICAN CIVIL LIBERTIES
UNION ET AL. FOR LEAVE TO FILE BRIEFS AS AMICI CURIAE ARE GRANTED.  THE
MOTION TO EXPEDITE REVIEW IS DENIED. 

THE APPLICATION TO VACATE THE STAYS GRANTED BY THE COURT OF APPEALS
ON JUNE 11, 1969, AND JUNE 19, 1969, OF THE INJUNCTIONS OF THE DISTRICT
COURT, PRESENTED TO MR. JUSTICE BRENNAN, AND BY HIM REFERRED TO THE
COURT, IS DENIED. 

THE PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT IN NO. 1539,
IS DENIED.  THE APPEAL IN NO. 1540 IS DISMISSED FOR WANT OF
JURISDICTION.  MENGELKOCH V. INDUSTRIAL WELFARE COMMISSION, 393 U.S. 83
(1968); WILSON V. PORT LAVACA, 391 U.S. 352 (1968). 

/1/  TOGETHER WITH NO. 1540, ROSADO ET AL. V. WYMAN, COMMISSIONER OF
SOCIAL SERVICES FOR THE STATE OF NEW YORK, ET AL., ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

CARL RACHLIN, MARTIN GARBUS, JAMES SPITZER, AND MORTON FRIEDMAN FOR
PETITIONERS IN NO. 1539 AND APPELLANTS IN NO. 1540. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AMY JUVILER, ASSISTANT
ATTORNEY GENERAL, AND PHILLIP WEINBERG FOR RESPONDENTS IN NO. 1539 AND
APPELLEES IN NO. 1540. 

MORRIS H. SCHNEIDER AND JACK GOLDBERG FOR BARBARO ET AL., AND ALAN
H. LEVINE, ELEANOR HOLMES NORTON, MARTIN M. BERGER, AND JEROME
KRETCHMER FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL., AS AMICI
CURIAE. 
..END :






















LINDSAY V. KELLEY, 395 U.S. 827 


       LINDSAY V. KELLEY, SECRETARY OF COMMONWEALTH OF

          PENNSYLVANIA. 

        APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

        NO. 1370.  DECIDED JUNE 23, 1969. 


433 PA. 406, 250 A.2D 474, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION OF THE PENNSYLVANIA BAR ASSOCIATION FOR LEAVE TO FILE A
BRIEF AS AMICUS CURIAE IS GRANTED.  THE MOTION TO DISMISS IS GRANTED
AND THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

JAMES E. BEASLEY FOR APPELLANT. 

WILLIAM C. SENNETT, ATTORNEY GENERAL OF PENNSYLVANIA, AND EDWARD
FRIEDMAN FOR APPELLEE. 

BERNARD G. SEGAL, SAMUEL D. SLADE, AND RALPH S. SNYDER FOR THE
PENNSYLVANIA BAR ASSN. AS AMICUS CURIAE IN SUPPORT OF THE MOTION TO
DISMISS. 
..END :






















ATLAS ENGINE WORKS, INC. V. NATIONAL LABOR RELATIONS BOARD, 395 U.S.
828 


       ATLAS ENGINE WORKS, INC. V. NATIONAL LABOR RELATIONS BOARD. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

        NO. 598.  DECIDED JUNE 23, 1969.  /1/ 


CERTIORARI GRANTED; NO. 598, 396 F.2D 775; NO. 906, 404 F.2D 1097;
NO. 1213, 406 F.2D 17; NO. 1273, 404 F.2D 105, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, THE JUDGMENTS ARE
VACATED, AND THE CASES ARE REMANDED TO THE RESPECTIVE UNITED STATES
COURTS OF APPEALS WITH INSTRUCTIONS TO REMAND THE CASES TO THE NATIONAL
LABOR RELATIONS BOARD FOR FURTHER CONSIDERATION IN LIGHT OF NLRB V.
GISSEL PACKING CO., INC., ANTE, P. 575. 

/1/  TOGETHER WITH NO. 906, THRIFT DRUG CO. OF PENNSYLVANIA V.
NATIONAL LABOR RELATIONS BOARD, AND NO. 1213, LOU DE YOUNG'S MARKET
BASKET, INC. V. NATIONAL LABOR RELATIONS BOARD, ALSO ON PETITIONS FOR
WIRTS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT; AND NO. 1273, NATIONAL LABOR RELATIONS BOARD V. PEMBEK OIL
CORP., ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

ROBERT B. GOSLINE FOR PETITIONER IN NO. 598.  ROBERT LEWIS FOR
PETITIONER IN NO. 906.  LAURENT K. VARNUM FOR PETITIONER IN NO. 1213. 
SOLICITOR GENERAL GRISWOLD, ARNOLD ORDMAN, DOMINICK L. MANOLI, AND
NORTON J. COME FOR PETITIONER IN NO. 1273. 

SOLICITOR GENERAL GRISWOLD AND MESSRS.  ORDMAN, MANOLI, AND COME FOR
RESPONDENT IN NOS. 598 AND 906.  SOLICITOR GENERAL GRISWOLD AND MR.
ORDMAN FOR RESPONDENT IN NO. 1213.  WILLIAM J. LARKIN 2D FOR RESPONDENT
IN NO. 1273. 
..END :












HOUSE V. UNITED STATES, 395 U.S. 829 


       HOUSE V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT. 

        NO. 1642, MISC.  DECIDED JUNE 23, 1969. 


408 F.2D 1008, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS,
AND ALAN S. ROSENTHAL FOR THE UNITED STATES ET AL.
..END :









TILLMAN V. UNITED STATES, 395 U.S. 830 


       TILLMAN ET AL. V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

  COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

        NO. 1879, MISC.  DECIDED JUNE 23, 1969. 


CERTIORARI GRANTED AS TO PETITIONER FOX AND DENIED AS TO ALL OTHER
PETITIONERS; 406 F.2D 930, VACATED IN PART AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI AS TO PETITIONER FOX ARE GRANTED.  THE
JUDGMENT IS VACATED IN PART AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA FOR FURTHER
CONSIDERATION IN LIGHT OF ALDERMAN V. UNITED STATES, 394 U.S. 165.  MR.
JUSTICE BLACK DISSENTS.  AS TO ALL OTHER PETITIONERS THE PETITION FOR A
WRIT OF CERTIORARI IS DENIED. 

HOWARD MOORE, JR., FOR PETITIONERS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON, AND
BEATRICE ROSENBERG FOR THE UNITED STATES. 
..END :
























UTAH COMM'N V. EL PASO GAS CO., 395 U.S. 464 


       UTAH PUBLIC SERVICE COMMISSION V. EL PASO NATURAL GAS CO. ET

           AL.

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF UTAH. 

        NO. 776.  ARGUED APRIL 29, 1969.--

   DECIDED JUNE 16, 1969. 


IN UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S. 651 (1964),
THIS COURT ORDERED THAT APPELLEE EL PASO NATURAL GAS CO. DIVEST ITSELF
OF PACIFIC NORTHWEST PIPELINE CO., WHICH EL PASO WAS HELD TO HAVE
ACQUIRED IN VIOLATION OF SEC. 7 OF THE CLAYTON ACT.  ON REMAND THE
GOVERNMENT AND EL PASO ENTERED INTO A CONSENT DECREE THAT WOULD HAVE
TRANSFERRED THE ILLEGALLY ACQUIRED ASSETS TO A NEW COMPANY.  IN CASCADE
NATURAL GAS CORP. V. EL PASO NATURAL GAS CO., 386 U.S. 129 (1967), THE
COURT SET THE CONSENT DECREE ASIDE AS BEING CONTRARY TO THE DIVESTITURE
MANDATE, WHICH WAS DESIGNED TO RESTORE COMPETITION IN THE CALIFORNIA
MARKET, AND SUGGESTED GUIDELINES FOR AN APPROPRIATE DECREE.  THE
DISTRICT COURT ON THE SECOND REMAND THEN CHOSE COLORADO INTERSTATE GAS
CO. AS THE APPLICANT "BEST QUALIFIED TO MAKE NEW COMPANY A SERIOUS
COMPETITOR" IN THE CALIFORNIA MARKET.  EL PASO WAS TO RECEIVE 5,000,000
SHARES OF NEW COMPANY NONVOTING PREFERRED STOCK CONVERTIBLE INTO COMMON
STOCK AFTER FIVE YEARS.  NEW COMPANY WAS TO ASSUME NORTHWEST DIVISION'S
PRO-RATA SHARE (ABOUT $170,000,000) OF EL PASO'S SYSTEM-WIDE BOND AND
DEBENTURE INDEBTEDNESS.  THE DISTRICT COURT AWARDED THE NEW COMPANY
21.8% OF THE SAN JUAN BASIN GAS RESERVES WHICH IT SAID WAS "NO LESS IN
RELATION TO PRESENT EXISTING RESERVES" THAN NORTHWEST HAD WHEN IT WAS
INDEPENDENT, AND ALSO GAVE THE NEW COMPANY MORE THAN 50% OF THE NET
ADDITIONS TO THE RESERVES DEVELOPED SINCE THE MERGER, THOUGH CONCEDEDLY
THE NEW COMPANY'S TOTAL RESERVES WILL NOT MEET THE OLD NORTHWEST'S
EXISTING REQUIREMENTS AND THOSE OF A CALIFORNIA PROJECT.  APPELLANT
FILED A JURISDICTIONAL STATEMENT IN THIS COURT PRESENTING THE QUESTION
WHETHER THE DISTRICT COURT'S DECREE COMPORTED WITH THIS COURT'S
MANDATE, BUT LATER MOVED TO DISMISS ITS APPEAL UNDER RULE 60.  THE
MOTION TO DISMISS WAS SUPPORTED BY A NUMBER OF APPELLEES AND OPPOSED BY
AN AMICUS CURIAE AND A "CONSUMER SPOKESMAN," AND THE COURT ORDERED ORAL
ARGUMENT AS TO WHETHER THERE HAD BEEN COMPLIANCE WITH ITS MANDATE. 
HELD: 

1.  THE FILING OF A MOTION UNDER RULE 60 TO DISMISS THE APPEAL DOES
NOT DEPRIVE THIS COURT OF JURISDICTION TO DETERMINE WHETHER THE MANDATE
IT ISSUED IN THIS CASE HAS BEEN COMPLIED WITH.  P. 466. 

2.  THE DISTRICT COURT'S DECREE DOES NOT COMPLY WITH THIS COURT'S
MANDATE.  PP. 469-472. 

(A) THE ALLOCATION OF GAS RESERVES (PARTICULARLY THOSE IN THE SAN
JUAN BASIN) MUST PLACE THE NEW COMPANY IN THE SAME RELATIVE COMPETITIVE
POSITION IN THE CALIFORNIA MARKET VIS-A-VIS EL PASO AS PACIFIC
NORTHWEST OCCUPIED BEFORE THE ILLEGAL MERGER.  THE DISTRICT COURT'S
DECREE FAILS TO MEET THAT OBJECTIVE; AND THAT COURT MUST THEREFORE
RECONSIDER THE QUESTION OF WHICH APPLICANT IN LIGHT OF THE REALLOCATION
SHOULD ACQUIRE THE NEW COMPANY.  PP. 470-471. 

(B) IN ORDER TO ACCOMPLISH THE COMPLETE DIVESTITURE WHICH THIS COURT
MANDATED ALL MANAGERIAL AND FINANCIAL CONNECTIONS BETWEEN EL PASO AND
THE NEW COMPANY MUST BE SEVERED AND THERE MUST BE A CASH SALE OF
NORTHWEST DIVISION.  PP. 471-472. 

291 F.SUPP.  3, VACATED AND REMANDED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS BEFORE US ON APPELLANT'S MOTION TO DISMISS ITS APPEAL UNDER
RULE 60.  ORDINARILY PARTIES MAY BY CONSENSUS AGREE TO DISMISSAL OF ANY
APPEAL PENDING BEFORE THIS COURT.  /1/  HOWEVER, THERE IS AN EXCEPTION
WHERE THE DISMISSAL IMPLICATES A MANDATE WE HAVE ENTERED IN A CAUSE. 
/2/  OUR MANDATE IS INVOLVED HERE.  WE THEREFORE ORDERED ORAL ARGUMENT
AT WHICH ALL PARTIES CONCERNED WERE AFFORDED AN OPPORTUNITY TO BE HEARD
ON THE QUESTION WHETHER THERE HAD BEEN COMPLIANCE WITH THE MANDATE. 
394 U.S. 970.  AT THE ORAL ARGUMENT A NUMBER OF APPELLEES SUPPORTED
APPELLANT'S MOTION.  THEY INCLUDED THE UNITED STATES, THE STATE OF
CALIFORNIA, EL PASO NATURAL GAS COMPANY, CASCADE NATURAL GAS
CORPORATION, INTERMOUNTAIN GAS COMPANY, NORTHWEST NATURAL GAS COMPANY,
THE WASHINGTON WATER POWER COMPANY, WASHINGTON NATURAL GAS COMPANY,
IDAHO PUBLIC UTILITIES COMMISSION, PUBLIC UTILITY COMMISSIONER OF
OREGON, WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, COLORADO
INTERSTATE CORPORATION, SOUTHERN CALIFORNIA GAS COMPANY, AND SOUTHERN
COUNTIES GAS COMPANY OF CALIFORNIA.  THE MOTION WAS OPPOSED BY JOHN J.
FLYNN AND I. DANIEL STEWART, BY BRIEF AMICUS CURIAE, AND BY WILLIAM M.
BENNETT, WHO APPEARED FOR THE STATE OF CALIFORNIA WHEN THE CASE WAS
LAST HERE, CASCADE NATURAL GAS CORP. V. EL PASO NATURAL GAS CO., 386
U.S. 129, 131 (1967), AND NOW PRESENTS HIMSELF, AND ARGUED ORALLY, AS
"CONSUMER SPOKESMAN." 

THIS IS A CLAYTON ACT SEC. 7 CASE, 38 STAT. 731, 15 U.S.C. 18, IN
WHICH THE ACQUISITION OF THE STOCK AND ASSETS OF PACIFIC NORTHWEST
PIPELINE CORPORATION BY EL PASO NATURAL GAS COMPANY RAISED THE
"ULTIMATE ISSUE" WHETHER "THE ACQUISITION SUBSTANTIALLY LESSENED
COMPETITION IN THE SALE OF NATURAL GAS IN CALIFORNIA."  UNITED STATES
V. EL PASO NATURAL GAS CO., 376 U.S. 651, 652.  WE ORDERED DIVESTITURE
"WITHOUT DELAY."  ID., AT 662.  THAT WAS IN 1964.  THE UNITED STATES
LATER AGREED TO SETTLE THE CASE.  AS TO THAT WE SAID: 

"WE DO NOT QUESTION THE AUTHORITY OF THE ATTORNEY GENERAL TO SETTLE
SUITS AFTER, AS WELL AS BEFORE, THEY REACH HERE.  THE DEPARTMENT OF
JUSTICE, HOWEVER, BY STIPULATION OR OTHERWISE HAS NO AUTHORITY TO
CIRCUMSCRIBE THE POWER OF THE COURTS TO SEE THAT OUR MANDATE IS CARRIED
OUT.  NO ONE, EXCEPT THIS COURT HAS AUTHORITY TO ALTER OR MODIFY OUR
MANDATE.  UNITED STATES V. DU PONT & CO., 366 U.S. 316, 325.  OUR
DIRECTION WAS THAT THE DISTRICT COURT PROVIDE FOR 'DIVESTITURE WITHOUT
DELAY.'  THAT MANDATE IN THE CONTEXT OF THE OPINION PLAINLY MEANT THAT
PACIFIC NORTHWEST OR A NEW COMPANY BE AT ONCE RESTORED TO A POSITION
WHERE IT COULD COMPETE WITH EL PASO IN THE CALIFORNIA MARKET."  386
U.S.,AT 136. 

WE SET ASIDE THAT CONSENT DECREE AND REMANDED FOR ADDITIONAL
FINDINGS AND A NEW SOLUTION, SAYING:

"IN THE PRESENT CASE PROTECTION OF CALIFORNIA INTERESTS IN A
COMPETITIVE SYSTEM WAS AT THE HEART OF OUR MANDATE DIRECTING
DIVESTITURE.  FOR IT WAS THE ABSORPTION OF PACIFIC NORTHWEST BY EL PASO
THAT STIFLED THAT COMPETITION AND DISADVANTAGED THE CALIFORNIA
INTERESTS.  IT WAS INDEED THEIR INTERESTS, AS PART OF THE PUBLIC
INTEREST IN A COMPETITIVE SYSTEM, THAT OUR MANDATE WAS DESIGNED TO
PROTECT."  ID., AT 135. 

ON REMAND THE DISTRICT COURT DECIDED IT SHOULD CHOOSE FROM AMONG THE
VARIOUS APPLICANTS THE ONE THAT IS "BEST QUALIFIED TO MAKE NEW COMPANY
A SERIOUS COMPETITOR" IN THE CALIFORNIA MARKET.  THAT COURT CHOSE
COLORADO INTERSTATE CORP., THE ONLY GAS PIPELINE OPERATOR AMONG THE
VARIOUS APPLICANTS. 

UNDER THE PLAN APPROVED BY THE DISTRICT COURT, EL PASO RECEIVES
5,000,000 SHARES OF NEW COMPANY NONVOTING PREFERRED STOCK, CONVERTIBLE
INTO COMMON STOCK AT THE END OF FIVE YEARS.  WHAT THE CONVERSION RATIO
WILL BE IS NOT KNOWN; BUT, IT IS SAID, THERE WILL BE PROVISIONS TO
RESTRICT EL PASO CONTROL OVER THE NEW COMPANY.  THE NEW COMPANY ALSO
ASSUMES APPROXIMATELY $170,000,000 OF EL PASO'S SYSTEM-WIDE BOND AND
DEBENTURE INDEBTEDNESS, AN AMOUNT DESIGNATED THE NORTHWEST DIVISION'S
PRO-RATA SHARE OF THAT INDEBTEDNESS. 

UTAH'S JURISDICTIONAL STATEMENT, WHICH SHE NOW MOVES TO DISMISS, WAS
FILED HERE NOVEMBER 25, 1968.  THAT JURISDICTIONAL STATEMENT PRESENTS
THE QUESTION WHETHER THE DECREE ENTERED BELOW SATISFIES OUR MANDATE. 
IT IS THE FILING OF THAT JURISDICTIONAL STATEMENT THAT BRINGS THE
QUESTION HERE.  SEE UNITED STATES V. DU PONT & CO., 366 U.S. 316.  IN
FACT, IN ITS JURISDICTIONAL STATEMENT, UTAH URGED THAT THE DECREE DOES
NOT MEET THE REQUIREMENTS OF DU PONT.  WE THUS NEED NOT DECIDE WHETHER
THE PAPERS FILED BY AMICUS CURIAE OR MR. BENNETT PROPERLY PRESENTED THE
QUESTION OF COMPLIANCE.  WE FIND THAT THE DECREE OF THE DISTRICT COURT
DOES NOT COMPLY WITH OUR MANDATE:  IT DOES NOT APPORTION THE GAS
RESERVES BETWEEN EL PASO AND NEW COMPANY IN A MANNER CONSISTENT WITH
THE PURPOSE OF THE MANDATE, AND IT DOES NOT PROVIDE FOR COMPLETE
DIVESTITURE.  WE THEREFORE VACATE THE JUDGMENT AND REMAND THE CASE FOR
FURTHER PROCEEDINGS. 

        I. 

WHEN THE CASE WAS LAST HERE WE SAID, "THE GAS RESERVES GRANTED THE
NEW COMPANY MUST BE NO LESS IN RELATION TO PRESENT EXISTING RESERVES
THAN PACIFIC NORTHWEST HAD WHEN IT WAS INDEPENDENT; AND THE NEW GAS
RESERVES DEVELOPED SINCE THE MERGER MUST BE EQUITABLY DIVIDED BETWEEN
EL PASO AND THE NEW COMPANY.  WE ARE TOLD BY THE INTERVENORS THAT EL
PASO GETS THE NEW RESERVES IN THE SAN JUAN BASIN-- WHICH DUE TO THEIR
GEOGRAPHICAL PROPINQUITY TO CALIFORNIA ARE CRITICAL TO COMPETITION IN
THAT MARKET.  BUT THE MERGED COMPANY, WHICH DISCOVERED THEM,
REPRESENTED THE INTERESTS BOTH OF EL PASO AND OF PACIFIC NORTHWEST.  WE
DO NOT KNOW WHAT AN EQUITABLE DIVISION WOULD REQUIRE.  HEARINGS ARE
NECESSARY, FOLLOWED BY METICULOUS FINDINGS MADE IN LIGHT OF THE
COMPETITIVE REQUIREMENTS TO WHICH WE HAVE ADVERTED."  386 U.S.,AT 136
137. 

THE DISTRICT COURT AWARDED 21.8% OF THE SAN JUAN BASIN RESERVES TO
THE NEW COMPANY SAYING THAT WAS "NO LESS IN RELATION TO PRESENT
EXISTING RESERVES" THAN NORTHWEST HAD WHEN IT WAS INDEPENDENT.  THE
DISTRICT COURT ALSO GAVE THE NEW COMPANY MORE THAN 50% OF THE NET
ADDITIONS TO THE RESERVES DEVELOPED SINCE THE MERGER.  CONCEDEDLY THE
TOTAL RESERVES OF THE NEW COMPANY WILL NOT BE SUFFICIENT TO MEET THE
OLD NORTHWEST'S EXISTING REQUIREMENTS AND THOSE OF A CALIFORNIA
PROJECT. 

THIS ATTEMPT TO PARALYZE COMPETITION IN THE CALIFORNIA MARKET
STARTED YEARS AGO; THE CLAYTON ACT SUIT WAS FILED IN 1957.  THE RECORD
UP TO THE ENTRY OF THE PRESENT DECREE SHOWS, AS THE DISTRICT COURT
FOUND, THAT DELAY HAS STRENGTHENED EL PASO'S POSITION.  FIRST, THE
DELAY HAS STRENGTHENED EL PASO'S HOLD ON THE CALIFORNIA MARKET, MAKING
IT MORE AND MORE DIFFICULT FOR A NEW OUT-OF-STATE SUPPLIER TO ENTER. 
SECOND, AN ADDITIONAL OUT-OF-STATE SUPPLIER HAS ENTERED THE CALIFORNIA
MARKET DURING THIS 12-YEAR PERIOD, TAKING WHAT WELL MIGHT HAVE BEEN THE
PLACE OF THE OLD NORTHWEST COMPANY HAD NOT ITS COMPETITION BEEN
STIFLED.  THIRD, PERMITS FOR NEW PIPELINES FROM TEXAS TO CALIFORNIA ARE
NOW PENDING BEFORE THE FEDERAL POWER COMMISSION. 

THE PURPOSE OF OUR MANDATE WAS TO RESTORE COMPETITION IN THE
CALIFORNIA MARKET.  AN ALLOCATION OF GAS RESERVES SHOULD BE MADE WHICH
IS "EQUITABLE" WITH THAT PURPOSE IN MIND.  THE POSITION OF THE NEW
COMPANY MUST BE STRENGTHENED AND THE LEVERAGE OF EL PASO NOT
INCREASED.  THAT IS TO SAY, AN ALLOCATION OF GAS RESERVES--
PARTICULARLY THOSE IN THE SAN JUAN BASIN-- MUST BE MADE TO RECTIFY, IF
POSSIBLE, THE MANNER IN WHICH EL PASO HAS USED THE ILLEGAL MERGER TO
STRENGTHEN ITS POSITION IN THE CALIFORNIA MARKET.  THE OBJECT OF THE
ALLOCATION OF GAS RESERVES MUST BE TO PLACE NEW COMPANY IN THE SAME
RELATIVE COMPETITIVE POSITION VIS-A-VIS EL PASO IN THE CALIFORNIA
MARKET AS THAT WHICH PACIFIC NORTHWEST ENJOYED IMMEDIATELY PRIOR TO THE
ILLEGAL MERGER. 

A REALLOCATION OF GAS RESERVES UNDER THIS STANDARD MAY PERMIT AN
APPLICANT OTHER THAN COLORADO INTERSTATE CORPORATION TO ACQUIRE NEW
COMPANY AND MAKE IT A COMPETITIVE FORCE IN CALIFORNIA.  THUS, THE
DISTRICT COURT IS DIRECTED TO EFFECT THIS REALLOCATION OF GAS RESERVES,
AND, IN LIGHT OF THE REALLOCATION, TO REOPEN CONSIDERATION OF WHICH
APPLICANT SHOULD ACQUIRE NEW COMPANY.  SUCH CONSIDERATION SHOULD, OF
COURSE, INCLUDE WHETHER AN AWARD TO A PARTICULAR APPLICANT WILL HAVE
ANY ANTI-COMPETITIVE EFFECTS EITHER IN THE CALIFORNIA MARKET OR IN
OTHER MARKETS. 

II. 

OUR MANDATE DIRECTED COMPLETE DIVESTITURE.  THE DISTRICT COURT DID
NOT, HOWEVER, DIRECT COMPLETE DIVESTITURE.  NEITHER APPELLANT NOR ANY
PARTY SUPPORTING THE DISMISSAL ARGUES THAT THE DISTRICT COURT DID SO.
RATHER THEY ARGUE THAT THE DISPOSITION MADE BY THE DISTRICT COURT WAS
THE BEST THAT MIGHT BE MADE WITHOUT COMPLETE DIVESTITURE.  CLEARLY THIS
DOES NOT COMPLY WITH OUR MANDATE.  UNITED STATES V. DU PONT & CO., 366
U.S. 316, WAS ANOTHER SEC. 7 CASE IN WHICH WE ORDERED "COMPLETE
DIVESTITURE."  ID., AT 328.  ONE PLAN PROPOSED WAS A DISTRIBUTION OF
GENERAL MOTORS SHARES HELD BY DU PONT, MOST OF THEM TO BE DISTRIBUTED
PRO RATA OVER A 10-YEAR PERIOD TO DU PONT STOCKHOLDERS; THE REST WERE
TO BE SOLD GRADUALLY OVER THE SAME 10-YEAR PERIOD.  ID., AT 319-320. 
DU PONT'S ALTERNATE PLAN WAS TO RETAIN ALL ATTRIBUTES OF OWNERSHIP,
PASSING THROUGH TO ITS SHAREHOLDERS THE VOTING RIGHTS PROPORTIONAL TO
THEIR HOLDINGS OF DU PONT SHARES.  WE DID NOT APPROVE THAT PLAN BUT
DIRECTED "COMPLETE DIVESTITURE."  ID., AT 334.  WE SAID:  "THE VERY
WORDS OF SEC. 7 SUGGEST THAT AN UNDOING OF THE ACQUISITION IS A NATURAL
REMEDY.  DIVESTITURE OR DISSOLUTION HAS TRADITIONALLY BEEN THE REMEDY
FOR SHERMAN ACT VIOLATIONS WHOSE HEART IS INTERCORPORATE COMBINATION
AND CONTROL."  366 U.S.,AT 329.  WE SAID THAT DIVESTITURE ONLY OF
VOTING RIGHTS WAS NOT AN ADEQUATE REMEDY.  WHAT WAS NECESSARY WAS
DISSOLUTION "OF THE INTERCORPORATE COMMUNITY OF INTEREST WHICH WE FOUND
TO VIOLATE THE LAW."  ID., AT 331. 

THE REASON ADVANCED FOR ALLOWING EL PASO TO TAKE A STOCK INTEREST IN
THE NEW COMPANY RATHER THAN CASH IS TO REDUCE ITS INCOME TAX BURDEN. 
WE HAVE EMPHASIZED THAT THE PINCH ON PRIVATE INTERESTS IS NOT RELEVANT
TO FASHIONING AN ANTITRUST DECREE, AS THE PUBLIC INTEREST IS OUR SOLE
CONCERN.  UNITED STATES V. DU PONT & CO., SUPRA, AT 326. 

THE SAME REASONING IS APPLICABLE TO THE PRESENT CASE.  RETENTION BY
EL PASO AND ITS STOCKHOLDERS OF THE PREFERRED STOCK IS PERPETUATION TO
A DEGREE OF THE ILLEGAL INTERCORPORATE COMMUNITY.  ASSUMPTION OF
$170,000,000 OF EL PASO'S INDEBTEDNESS HELPS KEEP THE TWO COMPANIES IN
LEAGUE.  THE SEVERANCE OF ALL MANAGERIAL AND ALL FINANCIAL CONNECTION
BETWEEN EL PASO AND THE NEW COMPANY MUST BE COMPLETE FOR THE DECREE TO
SATISY OUR MANDATE.  ONLY A CASH SALE WILL SATISFY THE RUDIMENTS OF
COMPLETE DIVESTITURE. 

WE VACATE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE CAUSE
FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  RULE 60(1) PROVIDES: "WHENEVER THE PARTIES THERETO SHALL, BY
THEIR ATTORNEYS OF RECORD, FILE WITH THE CLERK AN AGREEMENT IN WRITING
THAT AN APPEAL, PETITION FOR OR WRIT OF CERTIORARI, OR MOTION FOR LEAVE
TO FILE OR PETITION FOR (AN) EXTRAORDINARY WRIT BE DISMISSED,
SPECIFYING THE TERMS AS RESPECTS COSTS, AND SHALL PAY TO THE CLERK ANY
FEES THAT MAY BE DUE HIM, THE CLERK SHALL, WITHOUT FURTHER REFERENCE TO
THE COURT, ENTER AN ORDER OF DISMISSAL." 

/2/  IT WAS SAID BY COUNSEL FOR EIGHT APPELLEES AT ORAL ARGUMENT:
"(WE DO NOT QUESTION THIS COURT'S AUTHORITY TO RE-EXAMINE ITS MANDATE
AND COMPLIANCE WITH IT.  WE DO URGE, HOWEVER, THAT YOUR REVIEW BE
CONFINED TO THE QUESTION WHETHER THE MANDATE HAS BEEN CARRIED OUT UPON
THE RECORD BEFORE THIS COURT." 

MR. JUSTICE WHITE AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THE ACTION TAKEN BY THE COURT TODAY WILL BE DISMAYING TO ALL WHO ARE
ACCUSTOMED TO REGARD THIS INSTITUTION AS A COURT OF LAW. 

ALL SEMBLANCE OF JUDICIAL PROCEDURE HAS BEEN DISCARDED IN THE
HEADSTRONG EFFORT TO REACH A RESULT THAT FOUR MEMBERS OF THIS COURT
BELIEVE DESIRABLE.  IN VIOLATION OF THE COURT'S RULES, THE MAJORITY
ASSERTS THE POWER TO DISPOSE OF THIS CASE ACCORDING TO ITS OWN NOTIONS,
DESPITE THE FACT THAT ALL THE PARTIES PARTICIPATING IN THE LOWER COURT
PROCEEDINGS ARE SATISFIED THAT THE DISTRICT COURT'S DECREE IS IN THE
PUBLIC INTEREST.  THE MAJORITY SEEKS TO JUSTIFY THIS EXTRAORDINARY STEP
ON THE GROUND THAT DISTRICT JUDGE CHILSON'S PAINSTAKING OPINION OF OVER
30 PAGES IS IN VIOLATION OF THE MANDATE ISSUED IN CASCADE NATURAL GAS
CORP. V. EL PASO NATURAL GAS CO., 386 U.S. 129 (1967), ALTHOUGH (1) WE
HAVE HEARD NO ORAL ARGUMENT DIRECTED TO THIS QUESTION /1/  AND (2) WE
HAVE NOT ORDERED THE INTERESTED PARTIES TO FILE FULL BRIEFS ON THIS
ISSUE.  ACTUALLY, AS WILL APPEAR, WHAT THE COURT HAS DONE IS TO
SUBSTITUTE, SUA SPONTE, A NEW MANDATE FOR ITS OLD ONE.  I CANNOT
POSSIBLY SUBSCRIBE TO SUCH AN ABUSE OF THE JUDICIAL PROCESS. 

MOREOVER, EVEN IF THE IMPROPRIETY OF THE COURT'S PRECIPITATE COURSE
IS SWALLOWED, IT SEEMS TO ME CLEAR THAT THE DISTRICT COURT'S DECISION
IN THE PRESENT CASE DID NOT VIOLATE ANY PRIOR MANDATE THIS COURT HAS
ENTERED IN THIS LONG AND COMPLICATED LITIGATION.  /2/  RATHER THAN
FRUSTRATING CASCADE'S COMMAND THAT "A NEW COMPANY BE AT ONCE RESTORED
TO A POSITION WHERE IT COULD COMPETE WITH EL PASO IN THE CALIFORNIA
MARKET," 386 U.S.,AT 136, JUDGE CHILSON'S DECREE ADOPTED THE SOLUTION
WHICH, SO FAR AS ONE CAN NOW TELL, MOST EFFECTIVELY REALIZED THE GOALS
OF SEC. 7 OF THE CLAYTON ACT.  INDEED, IT IS UNLIKELY THAT AS A RESULT
OF THE COURT'S ORDER TODAY, CALIFORNIA'S NATURAL GAS CONSUMERS WILL
EVER OBTAIN THE BENEFITS OF COMPETITION THAT THIS LAWSUIT WAS INTENDED
TO ACHIEVE WHEN IT WAS INITIATED BY THE DEPARTMENT OF JUSTICE IN 1957. 
       I.     IN ADDITION TO 17 PRIVATE PARTIES, THE STATES OF
CALIFORNIA, ARIZONA, NEVADA, UTAH, AND WASHINGTON INTERVENED IN THE
PROCEEDINGS BELOW.  THE DEPARTMENT OF JUSTICE OF COURSE REPRESENTED THE
INTERESTS OF THE UNITED STATES AS PLAINTIFF, AND THE FEDERAL POWER
COMMISSION PARTICIPATED AS AMICUS CURIAE.  ONLY THE STATE OF UTAH,
HOWEVER, CHOSE TO FILE A JURISDICTIONAL STATEMENT IN THIS COURT
CHALLENGING JUDGE CHILSON'S DECREE.  ALL OTHER PARTIES HAVE SIGNIFIED
THEIR BELIEF THAT THE DISTRICT COURT'S JUDGMENT IS SATISFACTORY.  THE
STATE OF UTAH NOW WISHES TO DISMISS ITS APPEAL, REASONABLY SUGGESTING
THAT ITS INTERESTS IN THE PRESENT DISPUTE ARE PERIPHERAL, AND THAT IF
THE STATE OF CALIFORNIA AND THE UNITED STATES DO NOT BELIEVE THAT THE
DECREE WILL PREJUDICE THE INTERESTS OF CALIFORNIA'S CONSUMERS, UTAH
CONSIDERS IT INAPPROPRIATE TO CONTEST THE MATTER FURTHER. 

THE MAJORITY, HOWEVER, REFUSES TO PERMIT UTAH TO DISMISS ITS APPEAL,
DESPITE THE COMMAND OF RULE 60 OF THE RULES OF THIS COURT: 

"WHENEVER THE PARTIES THERETO SHALL, BY THEIR ATTORNEYS OF RECORD,
FILE WITH THE CLERK AN AGREEMENT IN WRITING THAT AN APPEAL, PETITION
FOR OR WRIT OF CERTIORARI, OR MOTION FOR LEAVE TO FILE OR PETITION FOR
(AN) EXTRAORDINARY WRIT BE DISMISSED, SPECIFYING THE TERMS AS RESPECTS
COSTS, AND SHALL PAY TO THE CLERK ANY FEES THAT MAY BE DUE HIM, THE
CLERK SHALL, WITHOUT FURTHER REFERENCE TO THE COURT, ENTER AN ORDER OF
DISMISSAL."  THE LANGUAGE OF THE RULE COULD NOT BE CLEARER-- THE
PARTIES TO A LAWSUIT ARE GIVEN THE ABSOLUTE RIGHT TO DISMISS THEIR
APPEAL WITHOUT JUDICIAL SCRUTINY.  SINCE 1858, THE RULES OF THIS COURT
HAVE EXPRESSLY RECOGNIZED THE EXISTENCE OF THIS RIGHT, SEE REVISED
RULES OF THE SUP. CT. OF THE UNITED STATES, RULE NO. 29 (1858), /3/
AND I HAVE FOUND NO DECISION IN WHICH THIS RIGHT HAS EVER BEEN
QUESTIONED OR LIMITED.  NEVERTHELESS, THE COURT TODAY, WITHOUT ANY
DISCUSSION WHATEVER, IGNORES THE HERETOFORE UNQUESTIONED INTERPRETATION
OF THE RULE AND DECLARES THAT "THERE IS AN EXCEPTION WHERE THE
DISMISSAL IMPLICATES A MANDATE WE HAVE ENTERED IN A CAUSE."  ANTE, AT
466. 

IN HANDING DOWN THIS IPSE DIXIT, THE COURT NOT ONLY OVERLOOKS THE
TEACHINGS OF MORE THAN A CENTURY OF JUDICIAL PRACTICE, BUT ALSO
UNDERMINES THE BASIC POLICIES WHICH SUPPORT RULE 60.  THE RULE IS NOT A
MERE TECHNICALITY BUT IS PREDICATED UPON THE CLASSICAL VIEW THAT IT IS
THE FUNCTION OF THIS COURT TO DECIDE CONTROVERSIES BETWEEN PARTIES ONLY
WHEN THEY CANNOT BE SETTLED BY THE LITIGANTS IN ANY OTHER WAY.  SEE
MARBURY V. MADISON, 1 CRANCH 137 (1803).  ON THIS VIEW OF THE JUDICIAL
PROCESS, IT IS DIFFICULT TO PERCEIVE WHY THE COURT SHOULD FEEL
CONSTRAINED TO ENFORCE ITS MANDATE WHEN THE PARTIES HAVE SUBSEQUENTLY
AGREED, IN A COMPLETELY VOLUNTARY AND BONA FIDE WAY, THAT A DIFFERENT
SOLUTION WILL BETTER ACCOMMODATE THEIR INTERESTS.  WE HAVE LABOR ENOUGH
IN DECIDING THOSE PRESSING DISPUTES WHICH THE PARTIES ARE UNABLE TO
RESOLVE; THERE IS NO NEED TO "DO JUSTICE" WHEN NO LITIGANT IS
COMPLAINING THAT A WRONG HAS BEEN COMMITTED.  NOR WILL IT DO TO SAY, AS
THE COURT SEEMS TO SUGGEST, THAT ANTITRUST DECREES, BEING AFFECTED WITH
A PUBLIC INTEREST, AS THEY SURELY ARE, ARE ALWAYS SUBJECT TO SUA SPONTE
ENFORCEMENT BY THE COURT.  "ENFORCEMENT" OF THE LAWS OF THE UNITED
STATES IS THE PROVINCE OF THE EXECUTIVE BRANCH.  IT IS NO MORE A PROPER
FUNCTION OF THIS COURT TO THWART THE DEPARTMENT OF JUSTICE WHEN IT
DECIDES TO TERMINATE AN ANTITRUST LITIGATION THAN IT IS TO ORDER THIS
DEPARTMENT OF THE EXECUTIVE BRANCH TO COMMENCE AN ANTITRUST CASE WHICH
SOME MEMBERS OF THIS COURT MAY FEEL SHOULD BE BROUGHT.  /4/ 

ALTHOUGH THE COURT'S DECISION TO POLICE ITS OWN MANDATES SUA SPONTE
THUS OFFENDS FUNDAMENTAL CONCEPTIONS OF THE JUDICIAL PROCESS, I DO NOT
MEAN TO SUGGEST THAT THIS COURT LACKS THE CONSTITUTIONAL POWER TO ACT
IN THE WAY IT HAS DONE.  CF. CONTINENTAL CO. V. UNITED STATES, 259 U.S.
156, 165-166 (1922).  THE COURT DOES HAVE A LEGITIMATE INTEREST IN
MAINTAINING THE INTEGRITY OF ITS MANDATES WITHIN THE ENTIRE JUDICIAL
SYSTEM AND IT MAY BE ARGUED THAT THE LOWER COURTS WILL NOT
CONSCIENTIOUSLY EFFECTUATE OUR DECISIONS UNLESS ALL KNOW THAT THE COURT
WILL ACT WHEN IT LEARNS OF ABUSES.  YET, ALTHOUGH THIS ARGUMENT MAY BE
ENOUGH TO ESTABLISH THE CONSTITUTIONALITY OF A PRACTICE IN WHICH THIS
COURT SITS AS AN INVESTIGATORY BODY WITH A ROVING COMMISSION TO TRAVEL
THE LENGTH AND BREADTH OF THIS LAND POLICING ITS MANDATES, RULE 60
INDICATES THAT SUCH AN EXTRAORDINARY DEPARTURE FROM TRADITIONAL
JUDICIAL NORMS HAS NEVER BEEN THOUGHT NECESSARY TO INSURE THE INTEGRITY
OF OUR MANDATES.  EVEN DURING PERIODS OF HISTORY IN WHICH THERE WAS A
GREATER RISK THAT LOWER COURTS WOULD SEEK TO FRUSTRATE OUR DECISIONS,
IT HAS BEEN CONSIDERED SUFFICIENT TO RELY UPON THE PARTIES TO BRING
VIOLATIONS OF A MANDATE TO OUR ATTENTION EITHER BY PROSECUTING A SECOND
APPEAL OR BY PETITIONING FOR A WRIT OF MANDAMUS.  /5/ 

I SEE NO REASON WHY WE SHOULD TURN OUR BACK ON SUCH BASIC TRADITIONS
AT THIS LATE DATE.  MOREOVER, IF WE ARE TO TAKE SUCH DRASTIC ACTION,
SURELY WE SHOULD NOT DO SO IN AN AD HOC MANNER, UNDER THE PRESSURES OF
THE CLOSING DAYS OF THE TERM.  RATHER, IF WE ARE TO CHANGE RULE 60, WE
SHOULD DO SO IN AN APPROPRIATE RULE-MAKING PROCEEDING, IN WHICH THE
ARGUMENTS ON BOTH SIDES OF THE QUESTION MAY BE CANVASSED WITH THE
DISPASSIONATE NEUTRALITY THAT IS APPROPRIATE. 

FOR ALL OF THESE REASONS, I WOULD GRANT UTAH'S MOTION TO DISMISS ITS
APPEAL AND PUT AN END TO THIS 12-YEAR-OLD LAWSUIT.  /6/

        II. 

IT IS WITH GREAT HESITATION THAT I TURN TO CONSIDER THE COURT'S
DECISION FINDING JUDGE CHILSON'S DECREE IN VIOLATION OF CASCADE'S
MANDATE.  THE CASE BEFORE US IS ONE OF ENORMOUS COMPLEXITY.  IN
ADDITION TO THE PLAINTIFF AND DEFENDANT, 22 INTERVENORS AND NINE
APPLICANTS FOR THE ACQUISITION OF THE NEW COMPANY PARTICIPATED IN THE
PROCEEDINGS BELOW.  JUDGE CHILSON HEARD TESTIMONY FOR MORE THAN THREE
MONTHS; THE RECORD IN THIS CASE COVERS MORE THAN 14,000 PAGES, NOT TO
MENTION VOLUMINOUS EXHIBITS.  AND YET, WE HAVE NOT RECEIVED ANY BRIEFS
WHICH EVEN ATTEMPT A COMPLETE DISCUSSION EITHER OF THE MERITS OF THIS
CASE OR OF THE QUESTION WHETHER OUR MANDATE HAS BEEN FOLLOWED IN A
SATISFACTORY WAY.  THE JURISDICTIONAL STATEMENT SUBMITTED BY THE STATE
OF UTAH PROPERLY DOES NOT SUGGEST THAT THIS CASE IS SUITABLE FOR
SUMMARY DISPOSITION AND SIMPLY ATTEMPTS TO PERSUADE THE COURT THAT THE
QUESTIONS PRESENTED ARE SUBSTANTIAL.  THE DOCUMENTS FILED IN SUPPORT OF
JUDGE CHILSON'S DECISION ARE NO MORE SATISFACTORY.  WHILE MANY OF THE
PARTIES WHO PARTICIPATED BELOW HAVE TENDERED MOTIONS IN SUPPORT OF
UTAH'S REQUEST TO DISMISS ITS APPEAL, THESE PAPERS PRINCIPALLY DISCUSS
THE REASONS WHY EACH PARTY WAS SATISFIED WITH THE RESULT REACHED BELOW
AND DO NOT ATTEMPT A FULL-SCALE ANALYSIS OF THE MERITS OF THIS EXTENDED
AND COMPLICATED CONTROVERSY.  ONLY THE MEMORANDUM SUBMITTED BY THE
SOLICITOR GENERAL DEALS WITH THE SUBSTANCE OF THE CASE IN ANY
SIGNIFICANT WAY, SINCE IT CONTAINS THE GOVERNMENT'S MOTION TO AFFIRM
WHICH HAD BEEN PREPARED AS AN ANSWER TO UTAH'S JURISDICTIONAL
STATEMENT.  YET THE GOVERNMENT'S 18-PAGE DOCUMENT DOES NOT PRETEND TO
DEAL THOROUGHLY WITH THIS CASE'S FACTUAL INTRICACIES. 

DESPITE THE INADEQUATE BRIEFING, HOWEVER, ENOUGH EMERGES FROM THE
RECORD TO SUGGEST THAT, FAR FROM DISOBEYING CASCADE'S MANDATE, JUDGE
CHILSON MADE A DECISION WHICH MAY WELL BE THE ONLY ONE WHICH
REALISTICALLY PROMISES TO FULFILL THE PURPOSES OF THE CLAYTON ACT. 

THE DISTRICT COURT FOUND THAT "TIME IS OF THE ESSENCE" IF THE NEW
COMPANY IS TO COMPETE SUCCESSFULLY IN THE CALIFORNIA MARKET.  291
F.SUPP.  3, 28.  JUDGE CHILSON'S ANALYSIS OF THE COMPETITIVE SITUATION
EXISTING TODAY POWERFULLY SUPPORTS HIS CONCLUSION THAT THE CHANCES OF
SUCCESSFUL ENTRY ARE BECOMING MORE REMOTE WITH EVERY PASSING YEAR.  THE
DISTRICT COURT NOTED THAT WHEN THIS LAWSUIT BEGAN IN 1957, EL PASO WAS
THE ONLY OUT-OF-STATE SUPPLIER IN THE CALIFORNIA MARKET; IN CONTRAST,
TWO ADDITIONAL STRONG COMPANIES HAVE ENTERED THE STATE IN THE PAST
DECADE.  MOREOVER: 

     "ALTHOUGH THE EXPANDING CALIFORNIA MARKET APPEARS TO OFFER

  OPPORTUNITIES FOR NEW COMPANY TO ENTER THE MARKET, THE

  RECOMMENDATION OF THE FEDERAL POWER COMMISSION STAFF THAT A

  42-INCH PIPELINE SHOULD BE CONSTRUCTED TO CALIFORNIA IS A MATTER

  OF GRAVE CONCERN, FOR ACCORDING TO THE EVIDENCE BEFORE THE COURT,

  A 42-INCH LINE WOULD SERVE ALL INCREMENTS TO THE SOUTHERN

  CALIFORNIA MARKET FOR THE FORESEEABLE FUTURE.  THE SUPREME COURT

  RECOGNIZED THAT COMPETITION IN THE CALIFORNIA MARKET IS LIMITED

  TO FUTURE INCREMENTS, WHICH HAVE NOT YET BEEN CERTIFIED FOR

  SERVICE.  ONCE AN INCREMENT HAS BEEN CERTIFIED, IT IS WITHDRAWN

  FROM COMPETITION.  THE RECOMMENDATIONS OF THE COMMISSION'S STAFF

  FOR THE CONSTRUCTION OF A 42-INCH LINE HAVE BEEN COMMENDED BY THE

  FPC EXAMINER IN A CURRENT PROCEEDING AS 'BOLD AND CONSTRUCTIVE'

  . . . .

        .          .          .          . 

     "THE GOVERNMENT . . . (IN) ITS BRIEF . . . STATES:  'IT IS TOO

 EARLY TO PREDICT THE ULTIMATE DIRECTION OR FINAL OUTCOME OF THIS

  CURRENT FPC PROCEEDING.  THE OPPORTUNITY IT PRESENTS TO THE NEW

  COMPANY WHICH IS TO EMERGE FROM THIS LAW SUIT IS EVIDENT.  IF A

  FULL SCALE 42-INCH PROCEEDING GETS UNDERWAY . . . THE NEW COMPANY

  SHOULD BE EQUIPPED TO ENTER AS A CONTENDER WITH AT LEAST THE

  MINIMUM QUALIFICATIONS FOR SERIOUS CONSIDERATION.'"  291

  F.SUPP.,AT 27-28. 

THE DISTRICT COURT FOUND THAT THE COLORADO INTERSTATE GAS COMPANY (CIG)
WAS THE ONLY POTENTIAL PURCHASER WHICH HAD A REAL OPPORTUNITY TO
CONVINCE THE FPC THAT IT SHOULD OPERATE THE NEW TEXAS PIPELINE THAT
HOLDS THE KEY TO SUCCESSFUL COMPETITION IN CALIFORNIA.  SURELY THIS
FINDING HAS A SUBSTANTIAL BASIS IN FACT, SINCE NO OTHER PROSPECTIVE
PURCHASER OF THE NEW COMPANY HAS EVER OPERATED A PIPELINE AND ONLY ONE
HAS EVER HAD ANY CONNECTION AT ALL WITH THE OIL AND GAS INDUSTRY. 
NEVERTHELESS, THE COURT TODAY SUBSTANTIALLY DECREASES THE CHANCES OF
SUCCESSFUL COMPETITION BY THE NEW COMPANY BY REQUIRING YEARS MORE
LITIGATION BEFORE THE DAY WILL COME WHEN OPERATIONS FINALLY COMMENCE. 
DURING THIS LENGTHY PERIOD, EXISTING GAS COMPANIES WILL BECOME EVEN
MORE SOLIDLY ENTRENCHED IN THE MARKET AND THE TEXAS PIPELINE PROCEEDING
MAY WELL HAVE PROGRESSED TO THE POINT WHERE THE NEW COMPANY COULD NOT
OBTAIN SERIOUS CONSIDERATION FROM THE FPC. 

DESPITE THE FACT THAT THE CLAYTON ACT MAY WELL BE THE LOSER, THE
MAJORITY PROLONGS THIS LAWSUIT FOR TWO REASONS.  FIRST, IT IS SAID THAT
THE DISTRICT COURT VIOLATED CASCADE'S REQUIREMENT THAT "(THE GAS
RESERVES GRANTED THE NEW COMPANY MUST BE NO LESS IN RELATION TO PRESENT
EXISTING RESERVES THAN PACIFIC NORTHWEST HAD WHEN IT WAS INDEPENDENT;
AND THE NEW GAS RESERVES DEVELOPED SINCE THE MERGER MUST BE EQUITABLY
DIVIDED BETWEEN EL PASO AND THE NEW COMPANY."  386 U.S.,AT 136-137. 
BUT THE COURT'S OWN DISCUSSION OF THIS QUESTION UNMISTAKABLY
DEMONSTRATES THAT JUDGE CHILSON FULLY COMPLIED WITH THIS BRANCH OF
CASCADE'S MANDATE.  THE COURT CANNOT AND DOES NOT DENY THAT JUDGE
CHILSON GRANTED RESERVES TO THE NEW COMPANY WHICH ARE "'NO LESS IN
RELATION TO PRESENT EXISTING RESERVES' THAN NORTHWEST HAD WHEN IT WAS
INDEPENDENT."  SEE ANTE, AT 469.  THE ONLY QUESTION THAT REMAINS IS
WHETHER THE DISTRICT COURT DECREED AN "EQUITABLE" DIVISION OF GAS
RESOURCES DISCOVERED SINCE THE MERGER.  THE ANSWER TO THIS QUESTION
ALSO SEEMS QUITE EASY, SINCE THE COURT DOES NOT DENY THAT JUDGE CHILSON
GRANTED NEW COMPANY ABOUT 50% OF THESE RESERVES, WHICH IS MUCH MORE
THAN ITS PROPORTIONATE SHARE OF THE ASSETS. 

ALTHOUGH THIS EQUAL DIVISION SEEMS MORE THAN EQUITABLE TO THE NEW
COMPANY, THE MAJORITY FASTENS ON THE FACT THAT EVEN WITH THIS
DISTRIBUTION OF RESOURCES, THE NEW COMPANY WILL NOT BE ASSURED OF
SUFFICIENT GAS BOTH TO CUSTOMERS IN THE PACIFIC NORTHWEST AND TO
SATISFY THE REQUIREMENTS OF ITS POTENTIAL CUSTOMERS IN THE CALIFORNIA
MARKET.  THIS INDEED WOULD BE A SOURCE OF CONCERN IF IT WERE FOUND THAT
NEW COMPANY COULD NOT PRACTICALLY OBTAIN ADDITIONAL GAS RESOURCES IF IT
DECIDES TO COMPETE IN CALIFORNIA.  BUT JUDGE CHILSON CONCLUDED THAT
JUST THE OPPOSITE SITUATION OBTAINS; THE DISTRICT COURT FOUND THAT THE
NEW COMPANY "CAN OBTAIN THE RESERVES NECESSARY TO COMPETE IN THE
CALIFORNIA MARKET."  291 F.SUPP.,AT 20.  THE COURT, HOWEVER, IGNORES
THIS FINDING COMPLETELY AND DOES NOT EVEN ATTEMPT TO SHOW HOW, GIVEN
THIS FACT, NEW COMPANY'S EQUAL SHARE OF RESERVES CAN IN ANY SENSE BE
CALLED "INEQUITABLE."  INDEED, IT IS PERFECTLY CLEAR THAT THE COURT,
UNDER THE GUISE OF ENFORCING ITS MANDATE, IS REALLY CREATING A NEW, AND
MORE STRINGENT, STANDARD BY WHICH TO TEST THIS DIVESTITURE.  BUT SURELY
THIS IS COMPLETELY ILLEGITIMATE IN A CASE WHERE NO PARTY HAS CHALLENGED
THE LEGALITY OF THE DISTRICT COURT'S DECISION, AND WHERE, AT THE MOST,
THE ISSUE IS THE LOWER COURT'S COMPLIANCE WITH OUR PREVIOUS MANDATE. 

THE COURT'S SECOND GROUND FOR CLAIMING DISOBEDIENCE WITH CASCADE'S
COMMAND IS EQUALLY UNTENABLE.  IT IS SAID THAT CASCADE ORDERED
"COMPLETE DIVESTITURE" WITHOUT DELAY AND WE ARE TOLD THAT NO
DIVESTITURE CAN BE COMPLETE UNLESS THERE IS A CASH SALE.  SINCE THE
TRIAL COURT DID NOT ORDER A CASH SALE, THE MAJORITY FINDS THAT
CASCADE'S MANDATE HAS NOT BEEN OBEYED.     THERE ARE SEVERAL THINGS
WRONG WITH THIS LINE OF ARGUMENT.  FIRST, CASCADE EXPRESSLY STATES THAT
A CASH SALE IS NOT REQUIRED UNDER THE STANDARDS IT SETS DOWN: 

"DISPOSITION OF ALL OF THE STOCK WITH ALL CONVENIENT SPEED IS
NECESSARY AND CONDITIONS MUST BE IMPOSED TO MAKE SURE THAT EL PASO
INTERESTS DO NOT ACQUIRE A CONTROLLING INTEREST."  386 U.S.,AT 141. 
SINCE CASCADE DID NOT REQUIRE A CASH SALE IT IS DIFFICULT TO SEE HOW
THE PRESENT DIVESTITURE PLAN, IN WHICH ALL THE COMMON STOCK OF THE NEW
COMPANY IS TRANSFERRED TO CIG IS A PER SE VIOLATION OF THIS COURT'S
EARLIER MANDATE.  ONCE AGAIN, THE COURT HAS CREATED A NEW STANDARD FOR
JUDGING THE VALIDITY OF THE DISTRICT COURT'S DECISION INSTEAD OF
LIMITING ITSELF TO A CONSIDERATION OF WHETHER THE DECREE FULFILLED
CASCADE'S DEMAND "THAT EL PASO INTERESTS DO NOT ACQUIRE A CONTROLLING
INTEREST" IN THE NEW COMPANY. 

I PASS, THEN, TO CONSIDER WHETHER THE DIVESTITURE PLAN BEFORE US
VIOLATES OUR MANDATE IN PERMITTING EL PASO DOMINATION OF ITS
COMPETITOR.  WHILE THIS STANDARD IS A RATHER VAGUE ONE, MR. JUSTICE
DOUGLAS, SPEAKING FOR THE COURT IN CASCADE, GAVE IT SPECIFIC CONTENT BY
EXPLAINING WHY THE PROPOSED TERMS OF DIVESTITURE THEN UNDER REVIEW WERE
UNSATISFACTORY.  THIS EXPLANATION IS OF THE HIGHEST IMPORTANCE IN
DETERMINING WHETHER JUDGE CHILSON'S DECREE CONTRAVENED CASCADE'S
COMMAND AND IT MUST BE CONSIDERED WITH CARE.  MR. JUSTICE DOUGLAS BEGAN
HIS ANALYSIS BY NOTING THAT THE DECREE HAD TAKEN SOME STEPS TO INSULATE
THE NEW COMPANY FROM EL PASO CONTROL SINCE IT DID BAR EL PASO OFFICERS,
DIRECTORS, AND OWNERS OF MORE THAN ONE-HALF OF ONE PERCENT OF EL PASO
STOCK FROM BUYING INTO NEW COMPANY AT THE PUBLIC OFFERING.  THE COURT,
HOWEVER, FOUND THIS LIMITATION INSUFFICIENT BECAUSE: 

"THE DECREE DOES NOT PROHIBIT MEMBERS OF THE FAMILIES OF SUCH
PROHIBITED PURCHASERS FROM OBTAINING NEW COMPANY STOCK.  FURTHER, UNDER
THE TERMS OF THE DECREE, IT WOULD BE POSSIBLE FOR A GROUP OF EL PASO
STOCKHOLDERS, EACH WITH LESS THAN ONE-HALF OF ONE PERCENT OF EL PASO
STOCK, TO ACQUIRE AT THE INITIAL PUBLIC OFFERING ENOUGH NEW COMPANY
STOCK SUBSTANTIALLY TO INFLUENCE OR EVEN TO DOMINATE THE NEW COMPANY. 
OR, SUCH A GROUP COULD COMBINE WITH THE FAMILIES OF PROHIBITED
PURCHASERS IN ORDER TO CONTROL THE NEW COMPANY.  AFTER THE EXCHANGE OR
PUBLIC OFFERING, THERE IS NO RESTRICTION ON THE NUMBER OF NEW COMPANY
SHARES EL PASO SHAREHOLDERS MAY ACQUIRE.  THUS, THERE IS A DANGER THAT
MAJOR EL PASO STOCKHOLDERS MAY, SUBSEQUENT TO THE EXCHANGE OR PUBLIC
OFFERING, PURCHASE LARGE BLOCKS OF NEW COMPANY STOCK AND OBTAIN
EFFECTIVE CONTROL."  386 U.S.,AT 140-141.  JUDGE CHILSON'S DECREE TOOK
STEPS TO REMEDY EACH AND EVERY DEFECT MR. JUSTICE DOUGLAS NOTED IN
CASCADE.  NO MEMBERS OF THE IMMEDIATE FAMILY OF ANY OFFICER, DIRECTOR,
OR OWNER OF ONE-HALF OF ONE PERCENT OF EL PASO SHARES MAY CONVERT THEIR
NONVOTING PREFERENCE SHARES INTO VOTING COMMON SHARES AT ANY TIME. 
MOREOVER, ANY PERSON WHO ACTS IN CONCERT WITH ANY DIRECTOR, OFFICER, OR
SUBSTANTIAL OWNER OF EL PASO IS INCLUDED WITHIN THE BAN.  IN ADDITION,
THESE SAME INDIVIDUALS ARE NOT PERMITTED TO OBTAIN CONTROL OF
SIGNIFICANT PROPORTIONS OF CIG STOCK, THEREBY ACHIEVING CONTROL OVER
THE NEW COMPANY INDIRECTLY.  OFFICERS, DIRECTORS, AND THEIR ASSOCIATES
ARE BARRED FROM OWNING MORE THAN ONE-TENTH OF ONE PERCENT OF CIG STOCK
DURING THE NEXT 10 YEARS AND SUBSTANTIAL OWNERS OF EL PASO MAY NOT OWN
MORE THAN 5% OF THE OUTSTANDING COMMON STOCK OF CIG.  /7/ 

IT MAY BE THAT, ON APPEAL, EVEN THESE STRINGENT CONDITIONS MAY NOT
BE FOUND TO HAVE FULLY SATISFIED THE PURPOSES OF THE CLAYTON ACT.  A
DECISION OF THIS QUESTION WOULD OF COURSE REQUIRE AN ANALYSIS OF THE
FINANCIAL STRUCTURE OF EL PASO IN ORDER TO DETERMINE WHETHER IT WAS
POSSIBLE FOR THE COMPANY OR ITS OWNERS TO EVADE THE CONDITIONS IMPOSED
UPON THEM.  BUT IT IS SURELY IMPOSSIBLE TO HOLD ON THIS RECORD THAT
JUDGE CHILSON'S DECREE IS A VIOLATION OF THE MANDATE ISSUED IN CASCADE
WHEN THE PRESENT DIVESTITURE PLAN MANIFESTS A CONSCIENTIOUS EFFORT TO
COMPLY WITH ALL OF THE SUGGESTIONS ADVANCED BY THE COURT IN THAT
OPINION.  /8/  INDEED, THE MAJORITY TODAY DOES NOT EVEN ATTEMPT TO MAKE
SUCH A CLAIM.  INSTEAD, IT IGNORES THE FACT THAT THE DISTRICT COURT
CAREFULLY FRAMED CONDITIONS TO ASSURE THE NEW COMPANY'S INDEPENDENCE. 
AT NO POINT IN ITS BRIEF OPINION DOES THE COURT ANALYZE THIS ASPECT OF
JUDGE CHILSON'S DECREE, CONTENTING ITSELF WITH THE CRYPTIC COMMENT THAT
"IT IS SAID . . . (THAT) THERE WILL BE PROVISIONS TO RESTRICT EL PASO
CONTROL OVER THE NEW COMPANY."  ANTE, AT 468. 

        III. 

THE COURT'S CONCLUSION THAT ITS MANDATE HAS BEEN DISOBEYED IS, IN
SHORT, BASED UPON COMPLETELY ERRONEOUS FACTUAL PREMISES BORN OF A
SUPERFICIAL ACQUAINTANCE WITH THIS 14,000-PAGE RECORD.  THIS IS NOT
SURPRISING SINCE THE MAJORITY HAS SEEN FIT TO DECIDE THIS IMPORTANT
CASE WITHOUT THE BENEFIT OF SIGNIFICANT ORAL OR WRITTEN ARGUMENT.  AND
YET IT IS UPON THIS TENUOUS BASIS THAT THE COURT HAS CHOSEN TO SHATTER
CENTURIES OF JUDICIAL TRADITION IN ORDER TO REACH A DECISION WHICH DOES
NOT EVEN PROMISE TO FURTHER THE INTERESTS OF CALIFORNIA'S GAS
CONSUMERS. 

WHAT EVENTUATES TODAY EVINCES A COURSE OF UNJUDICIAL ACTION THAT
TRANSCENDS EVEN THAT WHICH MARKED THE LAST APPEARANCE OF THE CASE IN
THIS COURT.  SEE THE DISSENTING OPINION OF STEWART, J., IN CASCADE, 386
U.S. 129, 143. 

I RESPECTFULLY DISSENT. 

/1/  THE COURT'S OPINION INCORRECTLY STATES THAT WE "ORDERED ORAL
ARGUMENT AT WHICH ALL PARTIES CONCERNED WERE AFFORDED AN OPPORTUNITY TO
BE HEARD ON THE QUESTION WHETHER THERE HAD BEEN COMPLIANCE WITH THE
MANDATE."  ANTE, AT 466.  THE COMPLETE TEXT OF THE COURT'S ORDER
DIRECTING A HEARING UNEQUIVOCALLY SHOWS THAT THE PARTIES WERE REQUESTED
TO ADDRESS THEMSELVES ONLY TO THE MOTION FILED BY THE STATE OF UTAH
REQUESTING PERMISSION TO DISMISS ITS APPEAL AND THAT THE PARTIES WERE
NOT ASKED TO ARGUE THE MERITS OF THE APPEAL: "THE MOTION OF APPELLANT
TO DISMISS THE APPEAL UNDER RULE 60 AND THE MOTION OF WILLIAM M.
BENNETT FOR A HEARING ARE SET FOR ORAL ARGUMENT ON APRIL 29, 1969.  THE
SOLICITOR GENERAL IS INVITED TO FILE A BRIEF AND PRESENT ORAL ARGUMENT
IF HE SO DESIRES.  MR. JUSTICE HARLAN AND MR. JUSTICE STEWART DISSENT,
BELIEVING THAT THE ACTION TAKEN BY THE COURT, ABUSES ITS OWN
PROCESSES.  SEE RULE 60.  MR. JUSTICE WHITE, MR. JUSTICE FORTAS, AND
MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS MATTER."  394 U.S. 970 (1969).  PURSUANT TO THE COURT'S ORDER, THE
PARTIES USED THEIR LIMITED TIME FOR ORAL ARGUMENT IN AN EFFORT TO
SATISFY THE COURT THAT THEY HAD ACTED PROPERLY IN REFUSING TO TAKE AN
APPEAL FROM THE DISTRICT COURT'S DECISION.  NO PARTY PRESENTED ANY
SUBSTANTIAL ARGUMENTS ON THE MERITS OF THIS CASE. 

/2/  SEE CASCADE NATURAL GAS CORP. V. EL PASO NATURAL GAS CO.,
SUPRA; UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S. 651 (1964);
CF. CALIFORNIA V. FEDERAL POWER COMMISSION, 369 U.S. 482 (1962). 

/3/  RULE 29 PROVIDED: 

"WHENEVER THE PLAINTIFF AND DEFENDANT IN A WRIT OF ERROR PENDING IN
THIS COURT, OR THE APPELLANT AND APPELLEE IN ANY APPEAL, SHALL AT ANY
TIME HEREAFTER, IN VACATION AND OUT OF TERM TIME, BY THEIR RESPECTIVE
ATTORNEYS, WHO ARE ENTERED AS SUCH ON THE RECORD, SIGN AND FILE WITH
THE CLERK AN AGREEMENT IN WRITING, DIRECTING THE CASE TO BE DISMISSED,
AND SPECIFYING THE TERMS UPON WHICH IT IS TO BE DISMISSED AS TO COSTS,
AND ALSO PAYING TO THE CLERK ANY FEES THAT MAY BE DUE TO HIM, IT SHALL
BE THE DUTY OF THE CLERK TO ENTER THE CASE DISMISSED, AND TO GIVE TO
EITHER PARTY WHICH MAY REQUEST IT A COPY OF THE AGREEMENT FILED; BUT NO
MANDATE OR OTHER PROCESS IS TO ISSUE WITHOUT AN ORDER BY THE COURT." 
WHILE THIS RULE BY ITS TERMS PROVIDED FOR DISMISSAL OF CASES ONLY
DURING VACATION, THERE IS NO INDICATION THAT A DIFFERENT PROCEDURE WAS
FOLLOWED DURING THE TERM.  SURELY THERE WOULD BE LITTLE REASON TO
PERMIT AUTOMATIC DISMISSAL DURING VACATION BUT FORBID IT AT OTHER
TIMES. 

RULE 29, WITH MINOR AMENDMENTS, WAS A PART OF THE COURT'S RULES
UNTIL JULY 1, 1954, WHEN IT WAS REPLACED BY THE PRESENT RULE 60. 

/4/  IT IS OF COURSE PERFECTLY APPROPRIATE FOR A COURT TO MAKE AN
INDEPENDENT JUDGMENT AS TO THE MERITS OF AN ANTITRUST CONSENT DECREE
WHICH THE PARTIES SUBMIT FOR APPROVAL.  SEE, E.G., UNITED STATES V. PAN
AMERICAN WORLD AIRWAYS, INC., 1959 TRADE CAS. PARA. 69,300 AT 75,138
(D.C.S.D.N.Y.).  FOR IN THE CONSENT DECREE CONTEXT, THE PARTIES ARE
REQUESTING AFFIRMATIVE ACTION FROM THE JUDICIARY IN ORDER TO RESOLVE
THEIR DISPUTE, WHILE IN THE SITUATION WE CONFRONT, NONE OF THE PARTIES
ARE REQUESTING FURTHER JUDICIAL RELIEF. 

/5/  SEE IN RE POTTS, 166 U.S. 263 (1897); CF. IN RE SANFORD FORK &
TOOL CO., 160 U.S. 247 (1895); EX PARTE THE UNION STEAMBOAT CO., 178
U.S. 317 (1900). 

/6/  THE COURT DOES NOT DECIDE WHETHER THE PAPERS OPPOSING UTAH'S
MOTION TO DISMISS WHICH WERE PRESENTED BY JOHN J. FLYNN AND I. DANIEL
STEWART, AS AMICUS CURIAE, AND THOSE TENDERED BY WILLIAM M. BENNETT, AS
"CONSUMER SPOKESMAN," MAY BE PROPERLY CONSIDERED AT THIS LATE STAGE IN
THE PROCEEDINGS.  SINCE THE COURT DOES NOT REACH THIS QUESTION, I DO
NOT BELIEVE IT APPROPRIATE TO STATE MY VIEWS ON THE MATTER; NOR HAVE I
BELIEVED IT PROPER TO CONSIDER IN ANY WAY THE ARGUMENTS MADE BY
MESSRS.  FLYNN, STEWART, AND BENNETT. 

/7/  THESE CONDITIONS WERE APPROVED BY THE DISTRICT COURT ON
NOVEMBER 7, 1968, IN AN ORDER APPROVING THE IMPLEMENTING DOCUMENTS
FILED BY THE APPROPRIATE PARTIES PURSUANT TO JUDGE CHILSON'S DECISION
NAMING CIG AS THE SUCCESSFUL APPLICANT.  THE IMPLEMENTING DOCUMENTS ARE
PART OF THE RECORD IN THIS CASE. 

IN ADDITION TO THE RESTRICTIONS MENTIONED IN THE TEXT, THE DISTRICT
COURT ALSO FORBADE EL PASO'S OFFICERS AND DIRECTORS AS WELL AS THEIR
ASSOCIATES, FROM OWNING MORE THAN ONE-TENTH OF ONE PERCENT OF NEW
COMPANY STOCK FOR THE NEXT 10 YEARS; MOREOVER, EL PASO AND ITS
AFFILIATES ARE FORBIDDEN TO ACQUIRE ANY NEW COMPANY OR CIG STOCK AT ANY
TIME IN THE FUTURE.  STEPS HAVE ALSO BEEN TAKEN TO ASSURE THAT EL PASO
WILL HAVE NO OFFICERS OR DIRECTORS IN COMMON WITH NEW COMPANY OR CIG. 

/8/  THE COURT RELIES HEAVILY ON UNITED STATES V. DE PONT & CO., 366
U.S. 316 (1961), TO SUPPORT ITS CLAIM THAT CASCADE'S MANDATE HAS BEEN
BREACHED.  BUT DU PONT ONLY HOLDS THAT THE DISTRICT COURT MUST ASSURE
ITSELF THAT "THE INTERCORPORATE COMMUNITY OF INTEREST WHICH WE FOUND TO
VIOLATE THE LAW" MUST BE DISSOLVED BY DIVESTITURE.  366 U.S.,AT 331. 
NOTHING IN DU PONT SUGGESTS, LET ALONE HOLDS, THAT A CASH SALE IS THE
ONLY WAY TO ACCOMPLISH THIS OBJECTIVE.  LIKE CASCADE, DU PONT
ESTABLISHED NO PER SE RULE IN THIS AREA. 

VERNON B. ROMNEY, ATTORNEY GENERAL OF UTAH, ARGUED THE CAUSE AND
FILED A BRIEF FOR APPELLANT. 

LEON M. PAYNE ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE EL
PASO NATURAL GAS CO. RICHARD B. HOOPER ARGUED THE CAUSE FOR APPELLEES
CASCADE NATURAL GAS CORP. ET AL. WITH HIM ON THE BRIEF WERE ROBERT L.
SIMPSON, JOHN W. CHAPMAN, ROBERT M. ROBSON, ATTORNEY GENERAL OF IDAHO,
LARRY D. RIPLEY, ROBERT Y. THORNTON, ATTORNEY GENERAL OF OREGON,
RICHARD W. SABIN, SLADE GORTON, ATTORNEY GENERAL OF WASHINGTON, AND
ROBERT E. SIMPSON.  JOHN F. SONNETT ARGUED THE CAUSE FOR APPELLEE
COLORADO INTERSTATE CORP. WITH HIM ON THE BRIEF WERE RAYMOND L. FALLS,
JR., AND H. RICHARD SCHUMACHER.  IVER E. SKJEIE, DEPUTY ATTORNEY
GENERAL, ARGUED THE CAUSE FOR APPELLEE THE STATE OF CALIFORNIA.  WITH
HIM ON THE BRIEF WAS THOMAS C. LYNCH, ATTORNEY GENERAL.  SOLICITOR
GENERAL GRISWOLD ARGUED THE CAUSE AND FILED A MEMORANDUM FOR THE UNITED
STATES, AT THE INVITATION OF THE COURT.  WILLIAM M. BENNETT ARGUED THE
CAUSE AND FILED A BRIEF PRO SE. 

BRIEFS OF AMICI CURIAE WERE FILED BY DAVID K. WATKISS AND JAMES D.
MCKINNEY, JR., FOR THE COLONIAL GROUP, AND BY JOHN J. FLYNN AND I.
DANIEL STEWART, PRO SE.
..END :





POWELL V. MCCORMACK, 395 U.S. 486 


       POWELL ET AL. V. MCCORMACK, SPEAKER OF THE HOUSE OF

           REPRESENTATIVES, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT. 

        NO. 138.  ARGUED APRIL 21, 1969.--

        DECIDED JUNE 16, 1969. 


PETITIONER POWELL WHO HAD BEEN DULY ELECTED TO SERVE IN THE HOUSE OF
REPRESENTATIVES FOR THE 90TH CONGRESS, WAS DENIED HIS SEAT BY THE
ADOPTION OF HOUSE RESOLUTION NO. 278 WHICH THE SPEAKER HAD RULED WAS ON
THE ISSUE OF EXCLUDING POWELL AND COULD BE DECIDED BY MAJORITY VOTE. 
THE HOUSE'S ACTION FOLLOWED CHARGES THAT POWELL HAD MISAPPROPRIATED
PUBLIC FUNDS AND ABUSED THE PROCESS OF THE NEW YORK COURTS.  POWELL AND
CERTAIN VOTERS OF HIS CONGRESSIONAL DISTRICT THEREAFTER BROUGHT SUIT IN
THE DISTRICT COURT FOR INJUNCTIVE, MANDATORY, AND DECLARATORY RELIEF
AGAINST RESPONDENTS, CERTAIN NAMED HOUSE MEMBERS, THE SPEAKER, CLERK,
SERGEANT AT ARMS, AND DOORKEEPER OF THE HOUSE, ALLEGING THAT THE
RESOLUTION BARRING HIS SEATING VIOLATED ART. I, SEC. 2, CL. 1, OF THE
CONSTITUTION AS CONTRARY TO THE MANDATE THAT HOUSE MEMBERS BE ELECTED
BY THE PEOPLE OF EACH STATE AND CL. 2 WHICH SETS FORTH THE
QUALIFICATIONS FOR MEMBERSHIP OF AGE, CITIZENSHIP, AND RESIDENCE (ALL
CONCEDEDLY MET BY POWELL), WHICH THEY CLAIMED WERE EXCLUSIVE.  THE
COMPLAINT ALLEGED THAT THE HOUSE CLERK THREATENED TO REFUSE TO PERFORM
THE SERVICE TO WHICH POWELL AS A DULY ELECTED CONGRESSMAN WAS ENTITLED;
THAT THE SERGEANT AT ARMS REFUSED TO PAY POWELL'S SALARY; AND THAT THE
DOORKEEPER THREATENED TO DENY POWELL ADMISSION TO THE HOUSE CHAMBER. 
THE DISTRICT COURT GRANTED RESPONDENTS' MOTION TO DISMISS THE COMPLAINT
"FOR WANT OF JURISDICTION OF THE SUBJECT MATTER."  THE COURT OF APPEALS
AFFIRMED ON SOMEWHAT DIFFERENT GROUNDS.  WHILE THE CASE WAS PENDING IN
THIS COURT, THE 90TH CONGRESS ENDED AND POWELL WAS ELECTED TO AND
SEATED BY THE 91ST CONGRESS.  RESPONDENTS CONTEND THAT (1) THE CASE IS
MOOT; (2) THE SPEECH OR DEBATE CLAUSE (ART. I, SEC. 6) FORECLOSES
JUDICIAL REVIEW; (3) THE DECISION TO EXCLUDE POWELL IS SUPPORTED BY THE
EXPULSION POWER IN ART. I, SEC. 5, UNDER WHICH THE HOUSE, WHICH "SHALL
BE THE JUDGE OF THE . . . QUALIFICATIONS OF ITS OWN MEMBERS," CAN BY A
TWO-THIRDS VOTE (EXCEEDED HERE) EXPEL A MEMBER FOR ANY REASON AT ALL;
(4) THE COURT LACKS SUBJECT MATTER JURISDICTION OVER THIS LITIGATION,
OR, ALTERNATIVELY, (5) THE LITIGATION IS NOT JUSTICIABLE UNDER GENERAL
CRITERIA OR BECAUSE IT INVOLVES A POLITICAL QUESTION.  HELD: 

1.  THE CASE HAS NOT BEEN MOOTED BY POWELL'S SEATING IN THE 91ST
CONGRESS, SINCE HIS CLAIM FOR BACK SALARY REMAINS A VIABLE ISSUE.  PP.
495-500. 

(A) POWELL'S AVERMENTS AS TO DECLARATORY RELIEF ARE SUFFICIENT. 
ALEJANDRINO V. QUEZON, 271 U.S. 528, DISTINGUISHED.  PP. 496-499. 

(B) THE MOOTNESS OF POWELL'S CLAIM TO A SEAT IN THE 90TH CONGRESS
DOES NOT AFFECT THE VIABILITY OF HIS BACK SALARY CLAIM WITH RESPECT TO
THE TERM FOR WHICH HE WAS EXCLUDED.  BOND V. FLOYD, 385 U.S. 116.  PP.
499-500. 

2.  ALTHOUGH THE SPEECH OR DEBATE CLAUSE BARS ACTION AGAINST
RESPONDENT CONGRESSMEN, IT DOES NOT BAR ACTION AGAINST THE OTHER
RESPONDENTS, WHO ARE LEGISLATIVE EMPLOYEES CHARGED WITH
UNCONSTITUTIONAL ACTIVITY, KILBOURN V. THOMPSON, 103 U.S. 168;
DOMBROWSKI V. EASTLAND, 387 U.S. 82; AND THE FACT THAT HOUSE EMPLOYEES
ARE ACTING PURSUANT TO EXPRESS ORDERS OF THE HOUSE DOES NOT PRECLUDE
JUDICIAL REVIEW OF THE CONSTITUTIONALITY OF THE UNDERLYING LEGISLATIVE
DECISION.  PP. 501-506. 

3.  HOUSE RESOLUTION NO. 278 WAS AN EXCLUSION PROCEEDING AND CANNOT
BE TREATED AS AN EXPULSION PROCEEDING (WHICH HOUSE MEMBERS HAVE VIEWED
AS NOT APPLYING TO PRE-ELECTION MISCONDUCT).  THIS COURT WILL NOT
SPECULATE WHETHER THE HOUSE WOULD HAVE VOTED TO EXPEL POWELL HAD IT
BEEN FACED WITH THAT QUESTION.  PP. 506-512. 

4.  THE COURT HAS SUBJECT MATTER JURISDICTION OVER PETITIONERS'
ACTION.  PP. 512-516. 

(A) THE CASE IS ONE "ARISING UNDER" THE CONSTITUTION WITHIN THE
MEANING OF ART. III, SINCE PETITIONERS' CLAIMS "WILL BE SUSTAINED IF
THE CONSTITUTION . . . (IS) GIVEN ONE CONSTRUCTION AND WILL BE DEFEATED
IF IT (IS) GIVEN ANOTHER."  BELL V. HOOD, 327 U.S. 678.  PP. 513-514. 

(B) THE DISTRICT COURTS ARE GIVEN A BROAD GRANT OF JURISDICTION BY
28 U.S.C. 1331(A), OVER "ALL CIVIL ACTIONS WHEREIN THE MATTER IN
CONTROVERSY . . . ARISES UNDER THE CONSTITUTION . . . " AND WHILE THAT
GRANT IS NOT ENTIRELY CO-EXTENSIVE WITH ART. III, THERE IS NO
INDICATION THAT SEC. 1331(A) WAS INTENDED TO FORECLOSE FEDERAL COURTS
FROM ENTERTAINING SUITS INVOLVING THE SEATING OF CONGRESSMEN.  PP. 514
516. 

5.  THIS LITIGATION IS JUSTICIABLE BECAUSE THE CLAIM PRESENTED AND
THE RELIEF SOUGHT CAN BE JUDICIALLY RESOLVED.  PP. 516-518. 

(A) PETITIONERS' CLAIM DOES NOT LACK JUSTICIABILITY ON THE GROUND
THAT THE HOUSE'S DUTY CANNOT BE JUDICIALLY DETERMINED, SINCE IF
PETITIONERS ARE CORRECT THE HOUSE HAD A DUTY TO SEAT POWELL ONCE IT
DETERMINED THAT HE MET THE STANDING QUALIFICATIONS SET FORTH IN THE
CONSTITUTION.  P. 517. 

(B) THE RELIEF SOUGHT IS SUSCEPTIBLE OF JUDICIAL RESOLUTION, SINCE
REGARDLESS OF THE APPROPRIATENESS OF A COERCIVE REMEDY AGAINST HOUSE
PERSONNEL (AN ISSUE NOT HERE DECIDED) DECLARATORY RELIEF IS
INDEPENDENTLY AVAILABLE.  PP. 517-518. 

6.  THE CASE DOES NOT INVOLVE A "POLITICAL QUESTION," WHICH UNDER
THE SEPARATION-OF-POWERS DOCTRINE WOULD NOT BE JUSTICIABLE.  PP. 518
549. 

(A) THE COURT'S EXAMINATION OF RELEVANT HISTORICAL MATERIALS SHOWS
AT MOST THAT CONGRESS' POWER UNDER ART. I, SEC. 5, TO JUDGE THE
QUALIFICATIONS OF ITS MEMBERS" IS A "TEXTUALLY DEMONSTRABLE
CONSTITUTIONAL COMMITMENT . . . TO (THAT) CO-ORDINATE POLITICAL
DEPARTMENT OF GOVERNMENT" (BAKER V. CARR, 369 U.S. 186, 217) TO JUDGE
ONLY STANDING QUALIFICATIONS WHICH ARE EXPRESSLY SET FORTH IN THE
CONSTITUTION; HENCE, THE HOUSE HAS NO POWER TO EXCLUDE A MEMBER-ELECT
WHO MEETS THE CONSTITUTION'S MEMBERSHIP REQUIREMENTS.  PP. 518-548. 

(B) THE CASE DOES NOT PRESENT A POLITICAL QUESTION IN THE SENSE,
ALSO URGED BY RESPONDENTS, THAT IT WOULD ENTAIL A "POTENTIALLY
EMBARRASSING CONFRONTATION BETWEEN COORDINATE BRANCHES" OF THE
GOVERNMENT, SINCE OUR SYSTEM OF GOVERNMENT REQUIRES FEDERAL COURTS ON
OCCASION TO INTERPRET THE CONSTITUTION DIFFERENTLY FROM OTHER
BRANCHES.  PP. 548-549. 

7.  IN JUDGING THE QUALIFICATIONS OF ITS MEMBERS UNDER ART. I, SEC.
5, CONGRESS IS LIMITED TO THE STANDING QUALIFICATIONS EXPRESSLY
PRESCRIBED BY THE CONSTITUTION.  P. 550. 

129 U.S.APP.D.C. 354, 395 F.2D 577, AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED TO THE DISTRICT COURT FOR ENTRY OF A DECLARATORY
JUDGMENT AND FOR FURTHER PROCEEDINGS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN NOVEMBER 1966, PETITIONER ADAM CLAYTON POWELL, JR., WAS DULY
ELECTED FROM THE 18TH CONGRESSIONAL DISTRICT OF NEW YORK TO SERVE IN
THE UNITED STATES HOUSE OF REPRESENTATIVES FOR THE 90TH CONGRESS. 
HOWEVER, PURSUANT TO A HOUSE RESOLUTION, HE WAS NOT PERMITTED TO TAKE
HIS SEAT.  POWELL (AND SOME OF THE VOTERS OF HIS DISTRICT) THEN FILED
SUIT IN FEDERAL DISTRICT COURT, CLAIMING THAT THE HOUSE COULD EXCLUDE
HIM ONLY IF IT FOUND HE FAILED TO MEET THE STANDING REQUIREMENTS OF
AGE, CITIZENSHIP, AND RESIDENCE CONTAINED IN ART. I, SEC. 2, OF THE
CONSTITUTION-- REQUIREMENTS THE HOUSE SPECIFICALLY FOUND POWELL MET--
AND THUS HAD EXCLUDED HIM UNCONSTITUTIONALLY.  THE DISTRICT COURT
DISMISSED PETITIONERS' COMPLAINT "FOR WANT OF JURISDICTION OF THE
SUBJECT MATTER."  A PANEL OF THE COURT OF APPEALS AFFIRMED THE
DISMISSAL, ALTHOUGH ON SOMEWHAT DIFFERENT GROUNDS, EACH JUDGE FILING A
SEPARATE OPINION.  WE HAVE DETERMINED THAT IT WAS ERROR TO DISMISS THE
COMPLAINT AND THAT PETITIONER POWELL IS ENTITLED TO A DECLARATORY
JUDGMENT THAT HE WAS UNLAWFULLY EXCLUDED FROM THE 90TH CONGRESS. 

        I.

        FACTS. 

DURING THE 89TH CONGRESS, A SPECIAL SUBCOMMITTEE ON CONTRACTS OF THE
COMMITTEE ON HOUSE ADMINISTRATION CONDUCTED AN INVESTIGATION INTO THE
EXPENDITURES OF THE COMMITTEE ON EDUCATION AND LABOR, OF WHICH
PETITIONER ADAM CLAYTON POWELL, JR., WAS CHAIRMAN.  THE SPECIAL
SUBCOMMITTEE ISSUED A REPORT CONCLUDING THAT POWELL AND CERTAIN STAFF
EMPLOYEES HAD DECEIVED THE HOUSE AUTHORITIES AS TO TRAVEL EXPENSES. 
THE REPORT ALSO INDICATED THERE WAS STRONG EVIDENCE THAT CERTAIN
ILLEGAL SALARY PAYMENTS HAD BEEN MADE TO POWELL'S WIFE AT HIS
DIRECTION.  SEE H.R. REP. NO. 2349, 89TH CONG., 2D SESS., 6-7 (1966). 
NO FORMAL ACTION WAS TAKEN DURING THE 89TH CONGRESS.  HOWEVER, PRIOR TO
THE ORGANIZATION OF THE 90TH CONGRESS, THE DEMOCRATIC MEMBERS-ELECT MET
IN CAUCUS AND VOTED TO REMOVE POWELL AS CHAIRMAN OF THE COMMITTEE ON
EDUCATION AND LABOR.  SEE H.R. REP. NO. 27, 90TH CONG., 1ST SESS., 1-2
(1967). 

WHEN THE 90TH CONGRESS MET TO ORGANIZE IN JANUARY 1967, POWELL WAS
ASKED TO STEP ASIDE WHILE THE OATH WAS ADMINISTERED TO THE OTHER
MEMBERS-ELECT.  FOLLOWING THE ADMINISTRATION OF THE OATH TO THE
REMAINING MEMBERS, THE HOUSE DISCUSSED THE PROCEDURE TO BE FOLLOWED IN
DETERMINING WHETHER POWELL WAS ELIGIBLE TO TAKE HIS SEAT.  AFTER SOME
DEBATE, BY A VOTE OF 363 TO 65 THE HOUSE ADOPTED HOUSE RESOLUTION NO.
1, WHICH PROVIDED THAT THE SPEAKER APPOINT A SELECT COMMITTEE TO
DETERMINE POWELL'S ELIGIBILITY.  113 CONG.REC.  26-27.  ALTHOUGH THE
RESOLUTION PROHIBITED POWELL FROM TAKING HIS SEAT UNTIL THE HOUSE ACTED
ON THE SELECT COMMITTEE'S REPORT, IT DID PROVIDE THAT HE SHOULD RECEIVE
ALL THE PAY AND ALLOWANCES DUE A MEMBER DURING THE PERIOD. 

THE SELECT COMMITTEE, COMPOSED OF NINE LAWYER-MEMBERS, ISSUED AN
INVITATION TO POWELL TO TESTIFY BEFORE THE COMMITTEE.  THE INVITATION
LETTER STATED THAT THE SCOPE OF THE TESTIMONY AND INVESTIGATION WOULD
INCLUDE POWELL'S QUALIFICATIONS AS TO AGE, CITIZENSHIP, AND RESIDENCY;
HIS INVOLVEMENT IN A CIVIL SUIT (IN WHICH HE HAD BEEN HELD IN
CONTEMPT); AND "(MATTERS OF . . . ALLEGED OFFICIAL MISCONDUCT SINCE
JANUARY 3, 1961."  SEE HEARINGS ON H.R. RES. NO. 1 BEFORE SELECT
COMMITTEE PURSUANT TO H.R. RES. NO. 1, 90TH CONG., 1ST SESS., 5 (1967)
(HEREINAFTER HEARINGS).  POWELL APPEARED AT THE COMMITTEE HEARING HELD
ON FEBRUARY 8, 1967.  AFTER THE COMMITTEE DENIED IN PART POWELL'S
REQUEST THAT CERTAIN ADVERSARY-TYPE PROCEDURES BE FOLLOWED, /1/  POWELL
TESTIFIED.  HE WOULD, HOWEVER, GIVE INFORMATION RELATING ONLY TO HIS
AGE, CITIZENSHIP, AND RESIDENCE; UPON THE ADVICE OF COUNSEL, HE REFUSED
TO ANSWER OTHER QUESTIONS. 

ON FEBRUARY 10, 1967, THE SELECT COMMITTEE ISSUED ANOTHER INVITATION
TO POWELL.  IN THE LETTER, THE SELECT COMMITTEE INFORMED POWELL THAT
ITS RESPONSIBILITY UNDER THE HOUSE RESOLUTION EXTENDED TO DETERMINING
NOT ONLY WHETHER HE MET THE STANDING QUALIFICATIONS OF ART. I, SEC. 2,
BUT ALSO TO "INQUIRING) INTO THE QUESTION OF WHETHER YOU SHOULD BE
PUNISHED OR EXPELLED PURSUANT TO THE POWERS GRANTED . . . THE HOUSE
UNDER ARTICLE I, SECTION 5, . . . OF THE CONSTITUTION.  IN OTHER WORDS,
THE SELECT COMMITTEE IS OF THE OPINION THAT AT THE CONCLUSION OF THE
PRESENT INQUIRY, IT HAS AUTHORITY TO REPORT BACK TO THE HOUSE
RECOMMENDATIONS WITH RESPECT TO . . . SEATING, EXPULSION OR OTHER
PUNISHMENT."  SEE HEARINGS 110.  POWELL DID NOT APPEAR AT THE NEXT
HEARING, HELD FEBRUARY 14, 1967.  HOWEVER, HIS ATTORNEYS WERE PRESENT,
AND THEY INFORMED THE COMMITTEE THAT POWELL WOULD NOT TESTIFY ABOUT
MATTERS OTHER THAN HIS ELIGIBILITY UNDER THE STANDING QUALIFICATIONS OF
ART. I, SEC. 2.  POWELL'S ATTORNEYS REASSERTED POWELL'S CONTENTION THAT
THE STANDING QUALIFICATIONS WERE THE EXCLUSIVE REQUIREMENTS FOR
MEMBERSHIP, AND THEY FURTHER URGED THAT PUNISHMENT OR EXPULSION WAS NOT
POSSIBLE UNTIL A MEMBER HAD BEEN SEATED.  SEE HEARINGS 111-113. 

THE COMMITTEE HELD ONE FURTHER HEARING AT WHICH NEITHER POWELL NOR
HIS ATTORNEYS WERE PRESENT.  THEN, ON FEBRUARY 23, 1967, THE COMMITTEE
ISSUED ITS REPORT, FINDING THAT POWELL MET THE STANDING QUALIFICATIONS
OF ART. I, SEC. 2.  H.R. REP. NO. 27, 90TH CONG., 1ST SESS., 31
(1967).  HOWEVER, THE COMMITTEE FURTHER REPORTED THAT POWELL HAD
ASSERTED AN UNWARRANTED PRIVILEGE AND IMMUNITY FROM THE PROCESSES OF
THE COURTS OF NEW YORK; THAT HE HAD WRONGFULLY DIVERTED HOUSE FUNDS FOR
THE USE OF OTHERS AND HIMSELF; AND THAT HE HAD MADE FALSE REPORTS ON
EXPENDITURES OF FOREIGN CURRENCY TO THE COMMITTEE ON HOUSE
ADMINISTRATION.  ID., AT 31-32.  THE COMMITTEE RECOMMENDED THAT POWELL
BE SWORN AND SEATED AS A MEMBER OF THE 90TH CONGRESS BUT THAT HE BE
CENSURED BY THE HOUSE, FINED $40,000 AND BE DEPRIVED OF HIS SENIORITY. 
ID., AT 33. 

THE REPORT WAS PRESENTED TO THE HOUSE ON MARCH 1, 1967, AND THE
HOUSE DEBATED THE SELECT COMMITTEE'S PROPOSED RESOLUTION.  AT THE
CONCLUSION OF THE DEBATE, BY A VOTE OF 222 TO 202 THE HOUSE REJECTED A
MOTION TO BRING THE RESOLUTION TO A VOTE.  AN AMENDMENT TO THE
RESOLUTION WAS THEN OFFERED; IT CALLED FOR THE EXCLUSION OF POWELL AND
A DECLARATION THAT HIS SEAT WAS VACANT.  THE SPEAKER RULED THAT A
MAJORITY VOTE OF THE HOUSE WOULD BE SUFFICIENT TO PASS THE RESOLUTION
IF IT WERE SO AMENDED.  113 CONG.REC.  5020.  AFTER FURTHER DEBATE, THE
AMENDMENT WAS ADOPTED BY A VOTE OF 248 TO 176.  THEN THE HOUSE ADOPTED
BY A VOTE OF 307 TO 116 HOUSE RESOLUTION NO. 278 IN ITS AMENDED FORM,
THEREBY EXCLUDING POWELL AND DIRECTING THAT THE SPEAKER NOTIFY THE
GOVERNOR OF NEW YORK THAT THE SEAT WAS VACANT. 

POWELL AND 13 VOTERS OF THE 18TH CONGRESSIONAL DISTRICT OF NEW YORK
SUBSEQUENTLY INSTITUTED THIS SUIT IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA.  FIVE MEMBERS OF THE HOUSE OF
REPRESENTATIVES WERE NAMED AS DEFENDANTS INDIVIDUALLY AND "AS
REPRESENTATIVES OF A CLASS OF CITIZENS WHO ARE PRESENTLY SERVING . . .
AS MEMBERS OF THE HOUSE OF REPRESENTATIVES."  JOHN W. MCCORMACK WAS
NAMED IN HIS OFFICIAL CAPACITY AS SPEAKER, AND THE CLERK OF THE HOUSE
OF REPRESENTATIVES, THE SERGEANT AT ARMS AND THE DOORKEEPER WERE NAMED
INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES.  THE COMPLAINT ALLEGED
THAT HOUSE RESOLUTION NO. 278 VIOLATED THE CONSTITUTION, SPECIFICALLY
ART. I, SEC. 2, CL. 1, BECAUSE THE RESOLUTION WAS INCONSISTENT WITH THE
MANDATE THAT THE MEMBERS OF THE HOUSE SHALL BE ELECTED BY THE PEOPLE OF
EACH STATE, AND ART. I, SEC. 2, CL. 2, WHICH, PETITIONERS ALLEGED, SETS
FORTH THE EXCLUSIVE QUALIFICATIONS FOR MEMBERSHIP.  /2/  THE COMPLAINT
FURTHER ALLEGED THAT THE CLERK OF THE HOUSE THREATENED TO REFUSE TO
PERFORM THE SERVICE FOR POWELL TO WHICH A DULY ELECTED CONGRESSMAN IS
ENTITLED, THAT THE SERGEANT AT ARMS REFUSED TO PAY POWELL HIS SALARY,
AND THAT THE DOORKEEPER THREATENED TO DENY POWELL ADMISSION TO THE
HOUSE CHAMBER. 

PETITIONERS ASKED THAT A THREE-JUDGE COURT BE CONVENED.  /3/
FURTHER, THEY REQUESTED THAT THE DISTRICT COURT GRANT A PERMANENT
INJUNCTION RESTRAINING RESPONDENTS FROM EXECUTING THE HOUSE RESOLUTION,
AND ENJOINING THE SPEAKER FROM REFUSING TO ADMINISTER THE OATH, THE
CLERK FROM REFUSING TO PERFORM THE DUTIES DUE A REPRESENTATIVE, THE
SERGEANT AT ARMS FROM REFUSING TO PAY POWELL HIS SALARY, AND THE
DOORKEEPER FROM REFUSING TO ADMIT POWELL TO THE CHAMBER.  /4/  THE
COMPLAINT ALSO REQUESTED A DECLARATORY JUDGMENT THAT POWELL'S EXCLUSION
WAS UNCONSTITUTIONAL. 

THE DISTRICT COURT GRANTED RESPONDENTS' MOTION TO DISMISS THE
COMPLAINT "FOR WANT OF JURISDICTION OF THE SUBJECT MATTER."  POWELL V.
MCCORMACK, 266 F.SUPP.  354 (D.C.D.C. 1967).  /5/  THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED ON SOMEWHAT DIFFERENT
GROUNDS, WITH EACH JUDGE OF THE PANEL FILING A SEPARATE OPINION. 
POWELL V. MCCORMACK, 129 U.S.APP.D.C. 354, 395 F.2D 577 (1968).  WE
GRANTED CERTIORARI.  393 U.S. 949 (1968).  WHILE THE CASE WAS PENDING
ON OUR DOCKET, THE 90TH CONGRESS OFFICIALLY TERMINATED AND THE 91ST
CONGRESS WAS SEATED.  IN NOVEMBER 1968, POWELL WAS AGAIN ELECTED AS THE
REPRESENTATIVE OF THE 18TH CONGRESSIONAL DISTRICT OF NEW YORK AND HE
WAS SEATED BY THE 91ST CONGRESS.  THE RESOLUTION SEATING POWELL ALSO
FINED HIM $25,000.  SEE H.R. RES. NO. 2, 91ST CONG., 1ST SESS., 115
CONG.REC.  H21 (DAILY ED., JANUARY 3, 1969).  RESPONDENTS THEN FILED A
SUGGESTION OF MOOTNESS.  WE POSTPONED FURTHER CONSIDERATION OF THIS
SUGGESTION TO A HEARING ON THE MERITS.  393 U.S. 1060 (1969). 

RESPONDENTS PRESS UPON US A VARIETY OF ARGUMENTS TO SUPPORT THE
COURT BELOW; THEY WILL BE CONSIDERED IN THE FOLLOWING ORDER.  (1)
EVENTS OCCURRING SUBSEQUENT TO THE GRANT OF CERTIORARI HAVE RENDERED
THIS LITIGATION MOOT.  (2) THE SPEECH OR DEBATE CLAUSE OF THE
CONSTITUTION, ART. I, SEC. 6, INSULATES RESPONDENTS' ACTION FROM
JUDICIAL REVIEW.  (3) THE DECISION TO EXCLUDE PETITIONER POWELL IS
SUPPORTED BY THE POWER GRANTED TO THE HOUSE OF REPRESENTATIVES TO EXPEL
A MEMBER.  (4) THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER
PETITIONERS' ACTION.  (5) EVEN IF SUBJECT MATTER JURISDICTION IS
PRESENT, THIS LITIGATION IS NOT JUSTICIABLE EITHER UNDER THE GENERAL
CRITERIA ESTABLISHED BY THIS COURT OR BECAUSE A POLITICAL QUESTION IS
INVOLVED. 

        II.

     MOOTNESS. 

AFTER CERTIORARI WAS GRANTED, RESPONDENTS FILED A MEMORANDUM
SUGGESTING THAT TWO EVENTS WHICH OCCURRED SUBSEQUENT TO OUR GRANT OF
CERTIORARI REQUIRE THAT THE CASE BE DISMISSED AS MOOT.  ON JANUARY 3,
1969, THE HOUSE OF REPRESENTATIVES OF THE 90TH CONGRESS OFFICIALLY
TERMINATED, AND PETITIONER POWELL WAS SEATED AS A MEMBER OF THE 91ST
CONGRESS.  115 CONG.REC.  H22 (DAILY ED., JANUARY 3, 1969). 
RESPONDENTS INSIST THAT THE GRAVAMEN OF PETITIONERS' COMPLAINT WAS THE
FAILURE OF THE 90TH CONGRESS TO SEAT PETITIONER POWELL AND THAT, SINCE
THE HOUSE OF REPRESENTATIVES IS NOT A CONTINUING BODY /6/  AND POWELL
HAS NOW BEEN SEATED, HIS CLAIMS ARE MOOT.  PETITIONERS COUNTER THAT
THREE ISSUES REMAIN UNRESOLVED AND THUS THIS LITIGATION PRESENTS A
"CASE OR CONTROVERSY" WITHIN THE MEANING OF ART. III:  /7/  (1) WHETHER
POWELL WAS UNCONSTITUTIONALLY DEPRIVED OF HIS SENIORITY BY HIS
EXCLUSION FROM THE 90TH CONGRESS; (2) WHETHER THE RESOLUTION OF THE
91ST CONGRESS IMPOSING AS "PUNISHMENT" A $25,000 FINE IS A CONTINUATION
OF RESPONDENTS' ALLEGEDLY UNCONSTITUTIONAL EXCLUSION, SEE H.R. RES. NO.
2, 91ST CONG., 1ST SESS., 115 CONG.REC.  H21 (DAILY ED., JANUARY 3,
1969); AND (3) WHETHER POWELL IS ENTITLED TO SALARY WITHHELD AFTER HIS
EXCLUSION FROM THE 90TH CONGRESS.  WE CONCLUDE THAT POWELL'S CLAIM FOR
BACK SALARY REMAINS VIABLE EVEN THOUGH HE HAS BEEN SEATED IN THE 91ST
CONGRESS AND THUS FIND IT UNNECESSARY TO DETERMINE WHETHER THE OTHER
ISSUES HAVE BECOME MOOT.  /8/ 

SIMPLY STATED, A CASE IS MOOT WHEN THE ISSUES PRESENTED ARE NO
LONGER "LIVE" OR THE PARTIES LACK A LEGALLY COGNIZABLE INTEREST IN THE
OUTCOME.  SEE E. BORCHARD, DECLATORY JUDGMENTS 35-37 (2D ED. 1941). 
WHERE ONE OF THE SEVERAL ISSUES PRESENTED BECOMES MOOT, THE REMAINING
LIVE ISSUES SUPPLY THE CONSTITUTIONAL REQUIREMENT OF A CASE OR
CONTROVERSY.  SEE UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 86-94
(1947); 6A J. MOORE, FEDERAL PRACTICE PARA. 57.13 (2D ED. 1966). 
DESPITE POWELL'S OBVIOUS AND CONTINUING INTEREST IN HIS WITHHELD
SALARY, RESPONDENTS INSIST THAT ALEJANDRINO V. QUEZON, 271 U.S. 528
(1926), LEAVES US NO CHOICE BUT TO DISMISS THIS LITIGATION AS MOOT. 
ALEJANDRINO, A DULY APPOINTED SENATOR OF THE PHILIPPINE ISLANDS, WAS
SUSPENDED FOR ONE YEAR BY A RESOLUTION OF THE PHILIPPINE SENATE AND
DEPRIVED OF ALL "PREROGATIVES, PRIVILEGES AND EMOLUMENTS" FOR THE
PERIOD OF HIS SUSPENSION.  THE SUPREME COURT OF THE PHILIPPINES REFUSED
TO ENJOIN THE SUSPENSION.  BY THE TIME THE CASE REACHED THIS COURT, THE
SUSPENSION HAD EXPIRED AND THE COURT DISMISSED AS MOOT ALEJANDRINO'S
REQUEST THAT THE SUSPENSION BE ENJOINED.  THEN, SUA SPONTE, /9/  THE
COURT CONSIDERED WHETHER THE POSSIBILITY THAT ALEJANDRINO WAS ENTITLED
TO BACK SALARY REQUIRED IT "TO RETAIN THE CASE FOR THE PURPOSE OF
DETERMINING WHETHER HE (ALEJANDRINO) MAY NOT HAVE A MANDAMUS FOR THIS
PURPOSE."  ID., AT 533.  CHARACTERIZING THE ISSUE OF ALEJANDRINO'S
SALARY AS A "MERE INCIDENT" TO HIS CLAIM THAT THE SUSPENSION WAS
IMPROPER, THE COURT NOTED THAT HE HAD NOT BRIEFED THE SALARY ISSUE AND
THAT HIS REQUEST FOR MANDAMUS DID NOTSET OUT WITH SUFFICIENT CLARITY
THE OFFICIAL OR SET OF OFFICIALS AGAINST WHOM THE MANDAMUS SHOULD
ISSUE.  ID., AT 533-534.  THE COURT THEREFORE REFUSED TO TREAT THE
SALARY CLAIM AND DISMISSED THE ENTIRE ACTION AS MOOT.     RESPONDENTS
BELIEVE THAT POWELL'S SALARY CLAIM IS ALSO A "MERE INCIDENT" TO HIS
INSISTENCE THAT HE WAS UNCONSTITUTIONALLY EXCLUDED SO THAT WE SHOULD
LIKEWISE DISMISS THIS ENTIRE ACTION AS MOOT.  THIS ARGUMENT FAILS TO
GRASP THAT REASON FOR THE DISMISSAL IN ALEJANDRINO WAS NOT THAT
ALEJANDRINO'S DEPRIVATION OF SALARY WAS INSUFFICIENTLY SUBSTANTIAL TO
PREVENT THE CASE FROM BECOMING MOOT, BUT RATHER THAT HIS FAILURE TO
PLEAD SUFFICIENT FACTS TO ESTABLISH HIS MANDAMUS CLAIM MADE IT
IMPOSSIBLE FOR ANY COURT TO RESOLVE THE MANDAMUS REQUEST.  /10/  BY
CONTRAST, PETITIONERS' COMPLAINT NAMES THE OFFICIAL RESPONSIBLE FOR THE
PAYMENT OF CONGRESSIONAL SALARIES AND ASKS FOR BOTH MANDAMUS AND AN
INJUNCTION AGAINST THAT OFFICIAL.  /11/ 

FURTHERMORE, EVEN IF RESPONDENTS ARE CORRECT THAT PETITIONERS'
AVERMENTS AS TO INJUNCTIVE RELIEF ARE NOT SUFFICIENTLY DEFINITE, IT
DOES NOT FOLLOW THAT THIS LITIGATION MUST BE DISMISSED AS MOOT. 
PETITIONER POWELL HAS NOT BEEN PAID HIS SALARY BY VIRTUE OF AN
ALLEGEDLY UNCONSTITUTIONAL HOUSE RESOLUTION.  THAT CLAIM IS STILL
UNRESOLVED AND HOTLY CONTESTED BY CLEARLY ADVERSE PARTIES.  DECLARATORY
RELIEF HAS BEEN REQUESTED, A FORM OF RELIEF NOT AVAILABLE WHEN
ALEJANDRINO WAS DECIDED.  /12/  A COURT MAY GRANT DECLARATORY RELIEF
EVEN THOUGH IT CHOOSES NOT TO ISSUE AN INJUNCTION OR MANDAMUS.  SEE
UNITED PUBLIC WORKERS V. MITCHELL, SUPRA, AT 93; CF. UNITED STATES V.
CALIFORNIA, 332 U.S. 19, 25-26 (1947).  A DECLARATORY JUDGMENT CAN THEN
BE USED AS A PREDICATE TO FURTHER RELIEF, INCLUDING AN INJUNCTION.  28
U.S.C. 2202; SEE VERMONT STRUCTURAL SLATE CO. V. TATKO BROTHERS SLATE
CO., 253 F.2D 29 (C.A. 2D CIR. 1958); UNITED STATES LINES CO. V.
SHAUGHNESSY, 195 F.2D 385 (C.A. 2D CIR. 1952).  ALEJANDRINO STANDS ONLY
FOR THE PROPOSITION THAT, WHERE ONE CLAIM HAS BECOME MOOT AND THE
PLEADINGS ARE INSUFFICIENT TO DETERMINE WHETHER THE PLAINTIFF IS
ENTITLED TO ANOTHER REMEDY, THE ACTION SHOULD BE DISMISSED AS MOOT. 
/13/  THERE IS NO SUGGESTION THAT PETITIONERS' AVERMENTS AS TO
DECLARATORY RELIEF ARE INSUFFICIENT AND POWELL'S ALLEGEDLY
UNCONSTITUTIONAL DEPRIVATION OF SALARY REMAINS UNRESOLVED. 

RESPONDENTS FURTHER ARGUE THAT POWELL'S "WHOLLY INCIDENTAL AND
SUBORDINATE" DEMAND FOR SALARY IS INSUFFICIENT TO PREVENT THIS
LITIGATION FROM BECOMING MOOT.  THEY SUGGEST THAT THE "PRIMARY AND
PRINCIPAL RELIEF" SOUGHT WAS THE SEATING OF PETITIONER POWELL IN THE
90TH CONGRESS RENDERING HIS PRESUMABLY SECONDARY CLAIMS NOT WORTHY OF
JUDICIAL CONSIDERATION.  BOND V. FLOYD, 385 U.S. 116 (1966), REJECTS
RESPONDENTS' THEORY THAT THE MOOTNESS OF A "PRIMARY" CLAIM REQUIRES A
CONCLUSION THAT ALL "SECONDARY" CLAIMS ARE MOOT.  AT THE BOND ORAL
ARGUMENT IT WAS SUGGESTED THAT THE EXPIRATION OF THE SESSION OF THE
GEORGIA LEGISLATURE WHICH EXCLUDED BOND HAD RENDERED THE CASE MOOT.  WE
REPLIED:  "THE STATE HAS NOT PRESSED THIS ARGUMENT, AND IT COULD NOT DO
SO, BECAUSE THE STATE HAS STIPULATED THAT IF BOND SUCCEEDS ON THIS
APPEAL HE WILL RECEIVE BACK SALARY FOR THE TERM FROM WHICH HE WAS
EXCLUDED."  385 U.S.,AT 128, N. 4.  BOND IS NOT CONTROLLING, ARGUE
RESPONDENTS, BECAUSE THE LEGISLATIVE TERM FROM WHICH BOND WAS EXCLUDED
DID NOT END UNTIL DECEMBER 31, 1966, /14/  AND OUR DECISION WAS
RENDERED DECEMBER 5; FURTHER, WHEN BOND WAS DECIDED, BOND HAD NOT AS
YET BEEN SEATED WHILE IN THIS CASE POWELL HAS BEEN.  /15/  RESPONDENTS
DO NOT TELL US, HOWEVER, WHY THESE FACTUAL DISTINCTIONS CREATE A
LEGALLY SIGNIFICANT DIFFERENCE BETWEEN BOND AND THIS CASE.  WE RELIED
IN BOND ON THE OUTSTANDING SALARY CLAIM, NOT THE FACTS RESPONDENTS
STRESS, TO HOLD THAT THE CASE WAS NOT MOOT. 

FINALLY, RESPONDENTS SEEM TO ARGUE THAT POWELL'S PROPER ACTION TO
RECOVER SALARY IS A SUIT IN THE COURT OF CLAIMS, SO THAT, HAVING
BROUGHT THE WRONG ACTION, A DISMISSAL FOR MOOTNESS IS APPROPRIATE.  THE
SHORT ANSWER TO THIS ARGUMENT IS THAT IT CONFUSES MOOTNESS WITH WHETHER
POWELL HAS ESTABLISHED A RIGHT TO RECOVER AGAINST THE SERGEANT AT ARMS,
A QUESTION WHICH IT IS INAPPROPRIATE TO TREAT AT THIS STAGE OF THE
LITIGATION.  /16/

        III. 

        SPEECH OR DEBATE CLAUSE. 

RESPONDENTS ASSERT THAT THE SPEECH OR DEBATE CLAUSE OF THE
CONSTITUTION, ART. I, SEC. 6, /17/  IS AN ABSOLUTE BAR TO PETITIONERS'
ACTION.  THIS COURT HAS ON FOUR PRIOR OCCASIONS-- DOMBROWSKI V.
EASTLAND, 387 U.S. 82 (1967); UNITED STATES V. JOHNSON, 383 U.S. 169
(1966); TENNEY V. BRANDHOVE, 341 U.S. 367 (1951); AND KILBOURN V.
THOMPSON, 103 U.S. 168 (1881)-- BEEN CALLED UPON TO DETERMINE IF
ALLEGEDLY UNCONSTITUTIONAL ACTION TAKEN BY LEGISLATORS OR LEGISLATIVE
EMPLOYEES IS INSULATED FROM JUDICIAL REVIEW BY THE SPEECH OR DEBATE
CLAUSE.  BOTH PARTIES INSIST THAT THEIR RESPECTIVE POSITIONS FIND
SUPPORT IN THESE CASES AND TENDER FOR DECISION THREE DISTINCT ISSUES:
(1) WHETHER RESPONDENTS IN PARTICIPATING IN THE EXCLUSION OF PETITIONER
POWELL WERE "ACTING IN THE SPHERE OF LEGITIMATE LEGISLATIVE ACTIVITY,"
TENNEY V. BRANDHOVE, SUPRA, AT 376; (2) ASSUMING THAT RESPONDENTS WERE
SO ACTING, WHETHER THE FACT THAT PETITIONERS SEEK NEITHER DAMAGES FROM
ANY OF THE RESPONDENTS NOR A CRIMINAL PROSECUTION LIFTS THE BAR OF THE
CLAUSE; /18/  AND (3) EVEN IF THIS ACTION MAY NOT BE MAINTAINED AGAINST
A CONGRESSMAN, WHETHER THOSE RESPONDENTS WHO ARE MERELY EMPLOYEES OF
THE HOUSE MAY PLEAD THE BAR OF THE CLAUSE.  WE FIND IT NECESSARY TO
TREAT ONLY THE LAST OF THESE ISSUES. 

THE SPEECH OR DEBATE CLAUSE, ADOPTED BY THE CONSTITUTIONAL
CONVENTION WITHOUT DEBATE OR OPPOSITION, /19/  FINDS ITS ROOTS IN THE
CONFLICT BETWEEN PARLIAMENT AND THE CROWN CULMINATING IN THE GLORIOUS
REVOLUTION OF 1688 AND THE ENGLISH BILL OF RIGHTS OF 1689.  /20/
DRAWING UPON THIS HISTORY, WE CONCLUDED IN UNITED STATES V. JOHNSON,
SUPRA, AT 181, THAT THE PURPOSE OF THIS CLAUSE WAS "TO PREVENT
INTIMIDATION (OF LEGISLATORS) BY THE EXECUTIVE AND ACCOUNTABILITY
BEFORE A POSSIBLY HOSTILE JUDICIARY."  ALTHOUGH THE CLAUSE SPRANG FROM
A FEAR OF SEDITIOUS LIBEL ACTIONS INSTITUTED BY THE CROWN TO PUNISH
UNFAVORABLE SPEECHES MADE IN PARLIAMENT, /21/  WE HAVE HELD THAT IT
WOULD BE A "NARROW VIEW" TO CONFINE THE PROTECTION OF THE SPEECH OR
DEBATE CLAUSE TO WORDS SPOKEN IN DEBATE.  COMMITTEE REPORTS,
RESOLUTIONS, AND THE ACT OF VOTING ARE EQUALLY COVERED, AS ARE "THINGS
GENERALLY DONE IN A SESSION OF THE HOUSE BY ONE OF ITS MEMBERS IN
RELATION TO THE BUSINESS BEFORE IT."  KILBOURN V. THOMPSON, SUPRA, AT
204.  FURTHERMORE, THE CLAUSE NOT ONLY PROVIDES A DEFENSE ON THE MERITS
BUT ALSO PROTECTS A LEGISLATOR FROM THE BURDEN OF DEFENDING HIMSELF. 
DOMBROWSKI V. EASTLAND, SUPRA, AT 85; SEE TENNEY V. BRANDHOVE, SUPRA,
AT 377. 

OUR CASES MAKE IT CLEAR THAT THE LEGISLATIVE IMMUNITY CREATED BY THE
SPEECH OR DEBATE CLAUSE PERFORMS AN IMPORTANT FUNCTION IN THE
REPRESENTATIVE GOVERNMENT.  IT INSURES THAT LEGISLATORS ARE FREE TO
REPRESENT THE INTERESTS OF THEIR CONSTITUENTS WITHOUT FEAR THAT THEY
WILL BE LATER CALLED TO TASK IN THE COURTS FOR THAT REPRESENTATION. 
THUS, IN TENNEY V. BRANDHOVE, SUPRA, AT 373, THE COURT QUOTED THE
WRITINGS OF JAMES WILSON AS ILLUMINATING THE REASON FOR LEGISLATIVE
IMMUNITY:  "IN ORDER TO ENABLE AND ENCOURAGE A REPRESENTATIVE OF THE
PUBLICK TO DISCHARGE HIS PUBLICK TRUST WITH FIRMNESS AND SUCCESS, IT IS
INDISPENSABLY NECESSARY, THAT HE SHOULD ENJOY THE FULLEST LIBERTY OF
SPEECH, AND THAT HE SHOULD BE PROTECTED FROM THE RESENTMENT OF EVERY
ONE, HOWEVER POWERFUL, TO WHOM THE EXERCISE OF THAT LIBERTY MAY
OCCASION OFFENCE."  /22/ 

LEGISLATIVE IMMUNITY DOES NOT, OF COURSE, BAR ALL JUDICIAL REVIEW OF
LEGISLATIVE ACTS.  THAT ISSUE WAS SETTLED BY IMPLICATION AS EARLY AS
1803, SEE MARBURY V. MADISON, 1 CRANCH 137, AND EXPRESSLY IN KILBOURN
V. THOMPSON, THE FIRST OF THIS COURT'S CASES INTERPRETING THE REACH OF
THE SPEECH OR DEBATE CLAUSE.  CHALLENGED IN KILBOURN WAS THE
CONSTITUTIONALITY OF A HOUSE RESOLUTION ORDERING THE ARREST AND
IMPRISONMENT OF A RECALCITRANT WITNESS WHO HAD REFUSED TO RESPOND TO A
SUBPOENA ISSUED BY A HOUSE INVESTIGATING COMMITTEE.  WHILE HOLDING THAT
THE SPEECH OR DEBATE CLAUSE BARRED KILBOURN'S ACTION FOR FALSE
IMPRISONMENT BROUGHT AGAINST SEVERAL MEMBERS OF THE HOUSE, THE COURT
NEVERTHELESS REACHED THE MERITS OF KILBOURN'S ATTACK AND DECIDED THAT,
SINCE THE HOUSE HAD NO POWER TO PUNISH FOR CONTEMPT, KILBOURN'S
IMPRISONMENT PURSUANT TO THE RESOLUTION WAS UNCONSTITUTIONAL.  IT
THEREFORE ALLOWED KILBOURN TO BRING HIS FALSE IMPRISONMENT ACTION
AGAINST THOMPSON, THE HOUSE'S SERGEANT AT ARMS, WHO HAD EXECUTED THE
WARRANT FOR KILBOURN'S ARREST. 

THE COURT FIRST ARTICULATED IN KILBOURN AND FOLLOWED IN DOMBROWSKI
V. EASTLAND /23/  THE DOCTRINE THAT, ALTHOUGH AN ACTION AGAINST A
CONGRESSMAN MAY BE BARRED BY THE SPEECH OR DEBATE CLAUSE, LEGISLATIVE
EMPLOYEES WHO PARTICIPATED IN THE UNCONSTITUTIONAL ACTIVITY ARE
RESPONSIBLE FOR THEIR ACTS.  DESPITE THE FACT THAT PETITIONERS BROUGHT
THIS SUIT AGAINST SEVERAL HOUSE EMPLOYEES-- THE SERGEANT AT ARMS, THE
DOORKEEPER AND THE CLERK-- AS WELL AS SEVERAL CONGRESSMEN, RESPONDENTS
ARGUE THAT KILBOURN AND DOMBROWSKI ARE DISTINGUISHABLE.  CONCEDING THAT
IN KILBOURN THE PRESENCE OF THE SERGEANT AT ARMS AND IN DOMBROWSKI THE
PRESENCE OF A CONGRESSIONAL SUBCOMMITTEE COUNSEL AS DEFENDANTS IN THE
LITIGATION ALLOWED JUDICIAL REVIEW OF THE CHALLENGED CONGRESSIONAL
ACTION, RESPONDENTS URGE THAT BOTH CASES CONCERNED AN AFFIRMATIVE ACT
PERFORMED BY THE EMPLOYEE OUTSIDE THE HOUSE HAVING A DIRECT EFFECT UPON
A PRIVATE CITIZEN.  HERE, THEY CONTINUE, THE RELIEF SOUGHT RELATES TO
ACTIONS TAKEN BY HOUSE AGENTS SOLELY WITHIN THE HOUSE.  ALTERNATIVELY,
RESPONDENTS INSIST THAT KILBOURN AND DOMBROWSKI PRAYED FOR DAMAGES
WHILE PETITIONER POWELL ASKS THAT THE SERGEANT AT ARMS DISBURSE FUNDS,
AN ASSERTEDLY GREATER INTERFERENCE WITH THE LEGISLATIVE PROCESS.  WE
REJECT THE PROFFERED DISTINCTIONS. 

THAT HOUSE EMPLOYEES ARE ACTING PURSUANT TO EXPRESS ORDERS OF THE
HOUSE DOES NOT BAR JUDICIAL REVIEW OF THE CONSTITUTIONALITY OF THE
UNDERLYING LEGISLATIVE DECISION.  KILBOURN DECISIVELY SETTLES THIS
QUESTION, SINCE THE SERGEANT AT ARMS WAS HELD LIABLE FOR FALSE
IMPRISONMENT EVEN THOUGH HE DID NOTHING MORE THAN EXECUTE THE HOUSE
RESOLUTION THAT KILBOURN BE ARRESTED AND IMPRISONED.  /24/
RESPONDENTS' SUGGESTIONS THUS ASK US TO DISTINGUISH BETWEEN AFFIRMATIVE
ACTS OF HOUSE EMPLOYEES AND SITUATIONS IN WHICH THE HOUSE ORDERS ITS
EMPLOYEES NOT TO ACT OR BETWEEN ACTIONS FOR DAMAGES AND CLAIMS FOR
SALARY.  WE CAN FIND NO BASIS IN EITHER THE HISTORY OF THE SPEECH OR
DEBATE CLAUSE OR OUR CASES FOR EITHER DISTINCTION.  THE PURPOSE OF THE
PROTECTION AFFORDED LEGISLATORS IS NOT TO FORESTALL JUDICIAL REVIEW OF
LEGISLATIVE ACTION BUT TO INSURE THAT LEGISLATORS ARE NOT DISTRACTED
FROM OR HINDERED IN THE PERFORMANCE OF THEIR LEGISLATIVE TASKS BY BEING
CALLED INTO COURT TO DEFEND THEIR ACTIONS.  A LEGISLATOR IS NO MORE OR
NO LESS HINDERED OR DISTRACTED BY LITIGATION AGAINST A LEGISLATIVE
EMPLOYEE CALLING INTO QUESTION THE EMPLOYEE'S AFFIRMATIVE ACTION THAN
HE WOULD BE BY A LAWSUIT QUESTIONING THE EMPLOYEE'S FAILURE TO ACT. 
NOR IS THE DISTRACTION OR HINDRANCE INCREASED BECAUSE THE CLAIM IS FOR
SALARY RATHER THAN DAMAGES, OR BECAUSE THE LITIGATION QUESTIONS ACTION
TAKEN BY THE EMPLOYEE WITHIN RATHER THAN WITHOUT THE HOUSE.  FREEDOM OF
LEGISLATIVE ACTIVITY AND THE PURPOSES OF THE SPEECH OR DEBATE CLAUSE
ARE FULLY PROTECTED IF LEGISLATORS ARE RELIEVED OF THE BURDEN OF
DEFENDING THEMSELVES.  /25/  IN KILBOURN AND DOMBROWSKI WE THUS
DISMISSED THE ACTION AGAINST MEMBERS OF CONGRESS BUT DID NOT REGARD THE
SPEECH OR DEBATE CLAUSE AS A BAR TO REVIEWING THE MERITS OF THE
CHALLENGED CONGRESSIONAL ACTION SINCE CONGRESSIONAL EMPLOYEES WERE ALSO
SUED.  SIMILARLY, THOUGH THIS ACTION MAY BE DISMISSED AGAINST THE
CONGRESSMEN PETITIONERS ARE ENTITLED TO MAINTAIN THEIR ACTION AGAINST
HOUSE EMPLOYEES AND TO JUDICIAL REVIEW OF THE PROPRIETY OF THE DECISION
TO EXCLUDE PETITIONER POWELL.  /26/  AS WAS SAID IN KILBOURN, IN
LANGUAGE WHICH TIME HAS NOT DIMMED: 

"ESPECIALLY IS IT COMPETENT AND PROPER FOR THIS COURT TO CONSIDER
WHETHER ITS (THE LEGISLATURE'S) PROCEEDINGS ARE IN CONFORMITY WITH THE
CONSTITUTION AND LAWS, BECAUSE, LIVING UNDER A WRITTEN CONSTITUTION, NO
BRANCH OR DEPARTMENT OF THE GOVERNMENT IS SUPREME; AND IT IS THE
PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO DETERMINE IN CASES
REGULARLY BROUGHT BEFORE THEM, WHETHER THE POWERS OF ANY BRANCH OF THE
GOVERNMENT, AND EVEN THOSE OF THE LEGISLATURE IN THE ENACTMENT OF LAWS,
HAVE BEEN EXERCISED IN CONFORMITY TO THE CONSTITUTION; AND IF THEY HAVE
NOT, TO TREAT THEIR ACTS AS NULL AND VOID."  103 U.S.,AT 199. 

        IV.

        EXCLUSION OR EXPULSION. 

THE RESOLUTION EXCLUDING PETITIONER POWELL WAS ADOPTED BY A VOTE IN
EXCESS OF TWO-THIRDS OF THE 434 MEMBERS OF CONGRESS-- 307 TO 116.  113
CONG.REC.  5037-5038.  ARTICLE I, SEC. 5, GRANTS THE HOUSE AUTHORITY TO
EXPEL A MEMBER "WITH THE CONCURRENCE OF TWO THIRDS."  /27/  RESPONDENTS
ASSERT THAT THE HOUSE MAY EXPEL A MEMBER FOR ANY REASON WHATSOEVER AND
THAT, SINCE A TWO-THIRDS VOTE WAS OBTAINED, THE PROCEDURE BY WHICH
POWELL WAS DENIED HIS SEAT IN THE 90TH CONGRESS SHOULD BE REGARDED AS
AN EXPULSION, NOT AN EXCLUSION.  CAUTIONING US NOT TO EXALT FORM OVER
SUBSTANCE, RESPONDENTS QUOTE FROM THE CONCURRING OPINION OF JUDGE
MCGOWAN IN THE COURT BELOW: 

     "APPELLANT POWELL'S CAUSE OF ACTION FOR A JUDICIALLY COMPELLED

  SEATING THUS BOILS DOWN, IN MY VIEW, TO THE NARROW ISSUE OF

  WHETHER A MEMBER FOUND BY HIS COLLEAGUES . . . TO HAVE ENGAGED IN

  OFFICIAL MISCONDUCT MUST, BECAUSE OF THE ACCIDENTS OF TIMING, BE

  FORMALLY ADMITTED BEFORE HE CAN BE EITHER INVESTIGATED OR

  EXPELLED.  THE SPONSOR OF THE MOTION TO EXCLUDE STATED ON THE

  FLOOR THAT HE WAS PROCEEDING ON THE THEORY THAT THE POWER TO

  EXPEL INCLUDED THE POWER TO EXCLUDE, PROVIDED A 2/3 VOTE WAS

FORTHCOMING.  IT WAS.  THEREFORE, SUCCESS FOR MR. POWELL ON THE

  MERITS WOULD MEAN THAT THE DISTRICT COURT MUST ADMONISH THE HOUSE

  THAT IT IS FORM, NOT SUBSTANCE, THAT SHOULD GOVERN IN GREAT

  AFFAIRS, AND ACCORDINGLY COMMAND THE HOUSE MEMBERS TO ACT OUT A

  CHARADE."  129 U.S.APP.D.C.,AT 383-384, 395 F.2D,AT 606-607. 

ALTHOUGH RESPONDENTS REPEATEDLY URGE THIS COURT NOT TO SPECULATE AS
TO THE REASONS FOR POWELL'S EXCLUSION, THEIR ATTEMPT TO EQUATE
EXCLUSION WITH EXPULSION WOULD REQUIRE A SIMILAR SPECULATION THAT THE
HOUSE WOULD HAVE VOTED TO EXPEL POWELL HAD IT BEEN FACED WITH THAT
QUESTION.  POWELL HAD NOT BEEN SEATED AT THE TIME HOUSE RESOLUTION NO.
278 WAS DEBATED AND PASSED.  AFTER A MOTION TO BRING THE SELECT
COMMITTEE'S PROPOSED RESOLUTION TO AN IMMEDIATE VOTE HAD BEEN DEFEATED,
AN AMENDMENT WAS OFFERED WHICH MANDATED POWELL'S EXCLUSION.  /28/  MR.
CELLER, CHAIRMAN OF THE SELECT COMMITTEE, THEN POSED A PARLIAMENTARY
INQUIRY TO DETERMINE WHETHER A TWO-THIRDS VOTE WAS NECESSARY TO PASS
THE RESOLUTION IF SO AMENDED "IN THE SENSE THAT IT MIGHT AMOUNT TO AN
EXPULSION."  113 CONG.REC.  5020.  THE SPEAKER REPLIED THAT "ACTION BY
A MAJORITY VOTE WOULD BE IN ACCORDANCE WITH THE RULES."  IBID.  HAD THE
AMENDMENT BEEN REGARDED AS AN ATTEMPT TO EXPEL POWELL, A TWO-THIRDS
VOTE WOULD HAVE BEEN CONSTITUTIONALLY REQUIRED.  THE SPEAKER RULED THAT
THE HOUSE WAS VOTING TO EXCLUDE POWELL, AND WE WILL NOT SPECULATE WHAT
THE RESULT MIGHT HAVE BEEN IF POWELL HAD BEEN SEATED AND EXPULSION
PROCEEDINGS SUBSEQUENTLY INSTITUTED. 

NOR IS THE DISTINCTION BETWEEN EXCLUSION AND EXPULSION MERELY ONE OF
FORM.  THE MISCONDUCT FOR WHICH POWELL WAS CHARGED OCCURRED PRIOR TO
THE CONVENING OF THE 90TH CONGRESS.  ON SEVERAL OCCASIONS THE HOUSE HAD
DEBATED WHETHER A MEMBER CAN BE EXPELLED FOR ACTIONS TAKEN DURING A
PRIOR CONGRESS AND THE HOUSE'S OWN MANUAL OF PROCEDURE APPLICABLE IN
THE 90TH CONGRESS STATES THAT "BOTH HOUSES HAVE DISTRUSTED THEIR POWER
TO PUNISH IN SUCH CASES."  RULES OF THE HOUSE OF REPRESENTATIVES, H.R.
DOC. NO. 529, 89TH CONG., 2D SESS., 25 (1967); SEE G. GALLOWAY, HISTORY
OF THE HOUSE OF REPRESENTATIVES 32 (1961).  THE HOUSE RULES MANUAL
REFLECTS POSITIONS TAKEN BY PRIOR CONGRESSES.  FOR EXAMPLE, THE REPORT
OF THE SELECT COMMITTEE APPOINTED TO CONSIDER THE EXPULSION OF JOHN W.
LANGLEY STATES UNEQUIVOCALLY THAT THE HOUSE WILL NOT EXPEL A MEMBER FOR
MISCONDUCT COMMITTED DURING AN EARLIER CONGRESS: 

"(IT MUST BE SAID THAT WITH PRACTICAL UNIFORMITY THE PRECEDENTS IN
SUCH CASES ARE TO THE EFFECT THAT THE HOUSE WILL NOT EXPEL A MEMBER FOR
REPREHENSIBLE ACTION PRIOR TO HIS ELECTION AS A MEMBER, NOT EVEN FOR
CONVICTION FOR AN OFFENSE.  ON MAY 23, 1884, SPEAKER CARLISLE DECIDED
THAT THE HOUSE HAD NO RIGHT TO PUNISH A MEMBER FOR ANY OFFENSE ALLEGED
TO HAVE BEEN COMMITTED PREVIOUS TO THE TIME WHEN HE WAS ELECTED A
MEMBER, AND ADDED, 'THAT HAS BEEN SO FREQUENTLY DECIDED IN THE HOUSE
THAT IT IS NO LONGER A MATTER OF DISPUTE.'"  H.R. REP. NO. 30, 69TH
CONG., 1ST SESS., 1-2 (1925).  /29/ MEMBERS OF THE HOUSE HAVING
EXPRESSED A BELIEF THAT SUCH STRICTURES APPLY TO ITS OWN POWER TO
EXPEL, WE WILL NOT ASSUME THAT TWO-THIRDS OF ITS MEMBERS WOULD HAVE
EXPELLED POWELL FOR HIS PRIOR CONDUCT HAD THE SPEAKER ANNOUNCED THAT
HOUSE RESOLUTION NO. 278 WAS FOR EXPULSION RATHER THAN EXCLUSION. 
/30/ 

FINALLY, THE PROCEEDINGS WHICH CULMINATED IN POWELL'S EXCLUSION CAST
CONSIDERABLE DOUBT UPON RESPONDENTS' ASSUMPTION THAT THE TWO-THIRDS
VOTE NECESSARY TO EXPEL WOULD HAVE BEEN MUSTERED.  THESE PROCEEDINGS
HAVE BEEN SUCCINCTLY DESCRIBED BY CONGRESSMAN ECKHARDT: 

"THE HOUSE VOTED 202 VOTES FOR THE PREVIOUS QUESTION /31/  LEADING
TOWARD THE ADOPTION OF THE (SELECT) COMMITTEE REPORT.  IT VOTED 222
VOTES AGAINST THE PREVIOUS QUESTION, OPENING THE FLOOR FOR THE CURTIS
AMENDMENT WHICH ULTIMATELY EXCLUDED POWELL. 

     "UPON ADOPTION OF THE CURTIS AMENDMENT, THE VOTE AGAIN FELL

  SHORT OF TWO-THIRDS, BEING 248 YEAS TO 176 NAYS.  ONLY ON THE

  FINAL VOTE, ADOPTING THE RESOLUTION AS AMENDED, WAS MORE THAN A

  TWO-THIRDS VOTE OBTAINED, THE VOTE BEING 307 YEAS TO 116 NAYS. 

  ON THIS LAST VOTE, AS A PRACTICAL MATTER, MEMBERS WHO WOULD NOT

  HAVE DENIED POWELL A SEAT IF THEY WERE GIVEN THE CHOICE TO PUNISH

  HIM HAD TO CAST AN AYE VOTE OR ELSE RECORD THEMSELVES AS OPPOSED

  TO THE ONLY PUNISHMENT THAT WAS LIKELY TO COME BEFORE THE HOUSE. 

  HAD THE MATTER COME UP THROUGH THE PROCESSES OF EXPULSION, IT

  APPEARS THAT THE TWO-THIRDS VOTE WOULD HAVE FAILED, AND THEN

  MEMBERS WOULD HAVE BEEN ABLE TO APPLY A LESSER PENALTY."  /32/

WE NEED EXPRESS NO OPINION AS TO THE ACCURACY OF CONGRESSMAN ECKHARDT'S
PREDICTION THAT EXPULSION PROCEEDINGS WOULD HAVE PRODUCED A DIFFERENT
RESULT.  HOWEVER, THE HOUSE'S OWN VIEWS OF THE EXTENT OF ITS POWER TO
EXPEL COMBINED WITH THE CONGRESSMAN'S ANALYSIS COUNSEL THAT EXCLUSION
AND EXPULSION ARE NOT FUNGIBLE PROCEEDINGS.  THE SPEAKER RULED THAT
HOUSE RESOLUTION NO. 278 CONTEMPLATED AN EXCLUSION PROCEEDING.  WE MUST
REJECT RESPONDENTS' SUGGESTION THAT WE OVERRULE THE SPEAKER AND HOLD
THAT, ALTHOUGH THE HOUSE MANIFESTED AN INTENT TO EXCLUDE POWELL, ITS
ACTION SHOULD BE TESTED BY WHATEVER STANDARDS MAY GOVERN AN EXPULSION. 

     V.

        SUBJECT MATTER JURISDICTION. 

AS WE POINTED OUT IN BAKER V. CARR, 369 U.S. 186, 198 (1962), THERE
IS A SIGNIFICANT DIFFERENCE BETWEEN DETERMINING WHETHER A FEDERAL COURT
HAS "JURISDICTION OF THE SUBJECT MATTER" AND DETERMINING WHETHER A
CAUSE OVER WHICH A COURT HAS SUBJECT MATTER JURISDICTION IS
"JUSTICIABLE."  THE DISTRICT COURT DETERMINED THAT "TO DECIDE THIS CASE
ON THE MERITS . . . WOULD CONSTITUTE A CLEAR VIOLATION OF THE DOCTRINE
OF SEPARATION OF POWERS" AND THEN DISMISSED THE COMPLAINT "FOR WANT OF
JURISDICTION OF THE SUBJECT MATTER."  POWELL V. MCCORMACK, 266 F.SUPP. 
354, 359, 360 (D.C.D.C. 1967).  HOWEVER, AS THE COURT OF APPEALS
CORRECTLY RECOGNIZED, THE DOCTRINE OF SEPARATION OF POWERS IS MORE
PROPERLY CONSIDERED IN DETERMINING WHETHER THE CASE IS "JUSTICIABLE." 
WE AGREE WITH THE UNANIMOUS CONCLUSION OF THE COURT OF APPEALS THAT THE
DISTRICT COURT HAD JURISDICTION OVER THE SUBJECT MATTER OF THIS CASE. 
/33/  HOWEVER, FOR REASONS SET FORTH IN PART VI, INFRA, WE DISAGREE
WITH THE COURT OF APPEALS' CONCLUSION THAT THIS CASE IS NOT
JUSTICIABLE. 

IN BAKER V. CARR, SUPRA, WE NOTED THAT A FEDERAL DISTRICT COURT
LACKS JURISDICTION OVER THE SUBJECT MATTER (1) IF THE CAUSE DOES NOT
"ARISE UNDER" THE FEDERAL CONSTITUTION, LAWS, OR TREATIES (OR FALL
WITHIN ONE OF THE OTHER ENUMERATED CATEGORIES OF ART. III); OR (2) IF
IT IS NOT A "CASE OR CONTROVERSY" WITHIN THE MEANING OF THAT PHRASE IN
ART. III; OR (3) IF THE CAUSE IS NOT ONE DESCRIBED BY ANY
JURISDICTIONAL STATUTE.  AND, AS IN BAKER V. CARR, SUPRA, OUR
DETERMINATION (SEE PART VI, B(1) INFRA) THAT THIS CAUSE PRESENTS NO
NONJUSTICIABLE "POLITICAL QUESTION"  DISPOSES OF RESPONDENTS'
CONTENTIONS /34/  THAT THIS CAUSE IS NOT A "CASE OR CONTROVERSY." 
/35/ 

RESPONDENTS FIRST CONTEND THAT THIS IS NOT A CASE "ARISING UNDER"
THE CONSTITUTION WITHIN THE MEANING OF ART. III.  THEY EMPHASIZE THAT
ART. I, SEC. 5, ASSIGNS TO EACH HOUSE OF CONGRESS THE POWER TO JUDGE
THE ELECTIONS AND QUALIFICATIONS OF ITS OWN MEMBERS AND TO PUNISH ITS
MEMBERS FOR DISORDERLY BEHAVIOR.  RESPONDENTS ALSO NOTE THAT UNDER ART.
I, SEC. 3, THE SENATE HAS THE "SOLE POWER" TO TRY ALL IMPEACHMENTS. 
RESPONDENTS ARGUE THAT THESE DELEGATIONS (TO "JUDGE," TO "PUNISH," AND
TO "TRY") TO THE LEGISLATIVE BRANCH ARE EXPLICIT GRANTS OF "JUDICIAL
POWER" TO THE CONGRESS AND CONSTITUTE SPECIFIC EXCEPTIONS TO THE
GENERAL MANDATE OF ART. III THAT THE "JUDICIAL POWER" SHALL BE VESTED
IN THE FEDERAL COURTS.  THUS, RESPONDENTS MAINTAIN, THE "POWER
CONFERRED ON THE COURTS BY ARTICLE III DOES NOT AUTHORIZE THIS COURT TO
DO ANYTHING MORE THAN DECLARE ITS LACK OF JURISDICTION TO PROCEED." 
/36/ 

WE REJECT THIS CONTENTION.  ARTICLE III, SEC. 1, PROVIDES THAT THE
"JUDICIAL POWER . . . SHALL BE VESTED IN ONE SUPREME COURT, AND IN SUCH
INFERIOR COURTS AS THE CONGRESS MAY . . . ESTABLISH."  FURTHER, SEC. 2
MANDATES THAT THE "JUDICIAL POWER SHALL EXTEND TO ALL CASES . . .
ARISING UNDER THIS CONSTITUTION . . . ."  IT HAS LONG BEEN HELD THAT A
SUIT "ARISES UNDER" THE CONSTITUTION IF A PETITIONER'S CLAIM "WILL BE
SUSTAINED IF THE CONSTITUTION . . . (IS) GIVEN ONE CONSTRUCTION AND
WILL BE DEFEATED IF (IT IS) GIVEN ANOTHER."  /37/ BELL V. HOOD, 327
U.S. 678, 685 (1946).  SEE KING COUNTY V. SEATTLE SCHOOL DISTRICT NO.
1, 263 U.S. 361, 363-364 (1923).  CF. OSBORN V. BANK OF THE UNITED
STATES, 9 WHEAT.  738 (1824).  SEE GENERALLY C. WRIGHT, FEDERAL COURTS
48-52 (1963).  THUS, THIS CASE CLEARLY IS ONE "ARISING UNDER" THE
CONSTITUTION AS THE COURT HAS INTERPRETED THAT PHRASE.  ANY BAR TO
FEDERAL COURTS REVIEWING THE JUDGMENTS MADE BY THE HOUSE OR SENATE IN
EXCLUDING A MEMBER ARISES FROM THE ALLOCATION OF POWERS BETWEEN THE TWO
BRANCHES OF THE FEDERAL GOVERNMENT (A QUESTION OF JUSTICIABILITY), AND
NOT FROM THE PETITIONERS' FAILURE TO STATE A CLAIM BASED ON FEDERAL
LAW. 

RESPONDENTS NEXT CONTEND THAT THE COURT OF APPEALS ERRED IN RULING
THAT PETITIONERS' SUIT IS AUTHORIZED BY A JURISDICTIONAL STATUTE, I.E.,
28 U.S.C. 1331(A).  SECTION 1331(A) PROVIDES THAT DISTRICT COURTS SHALL
HAVE JURISDICTION IN "ALL CIVIL ACTIONS WHEREIN THE MATTER IN
CONTROVERSY . . . ARISES UNDER THE CONSTITUTION . . . ."  RESPONDENTS
URGE THAT EVEN THOUGH A CASE MAY "ARISE UNDER THE CONSTITUTION" FOR
PURPOSES OF ART. III, IT DOES NOT NECESSARILY "ARISE UNDER THE
CONSTITUTION" FOR PURPOSES OF SEC. 1331(A).  ALTHOUGH THEY RECOGNIZE
THERE IS LITTLE LEGISLATIVE HISTORY CONCERNING THE ENACTMENT OF SEC.
1331(A), RESPONDENTS ARGUE THAT THE HISTORY OF THE PERIOD WHEN THE
INCLUDE SUITS QUESTIONING THE EXCLUSION OF CONGRESSMEN IN THIS GRANT OF
"FEDERAL QUESTION" JURISDICTION. 

RESPONDENTS CLAIM THAT THE PASSAGE OF THE FORCE ACT /38/  IN 1870
LENDS SUPPORT TO THEIR INTERPRETATION OF THE INTENDED SCOPE OF SEC.
1331.  THE FORCE ACT GIVES THE DISTRICT COURTS JURISDICTION OVER "ANY
CIVIL ACTION TO RECOVER POSSESSION OF ANY OFFICE . . . WHEREIN IT
APPEARS THAT THE SOLE QUESTION . . . ARISES OUT OF DENIAL OF THE RIGHT
TO VOTE . . . ON ACCOUNT OF RACE, COLOR OR PREVIOUS CONDITION OF
SERVITUDE."  HOWEVER, THE ACT SPECIFICALLY EXCLUDES SUITS CONCERNING
THE OFFICE OF CONGRESSMAN.  RESPONDENTS MAINTAIN THAT THIS EXCLUSION
DEMONSTRATES CONGRESS' INTENTION TO PROHIBIT FEDERAL COURTS FROM
ENTERTAINING SUITS REGARDING THE SEATING OF CONGRESSMEN. 

WE HAVE NOTED THAT THE GRANT OF JURISDICTION IN SEC. 1331(A), WHILE
MADE IN THE LANGUAGE USED IN ART. III, IS NOT IN ALL RESPECTS CO
EXTENSIVE WITH THE POTENTIAL FOR FEDERAL JURISDICTION FOUND IN ART.
III.  SEE ZWICKLER V. KOOTA, 389 U.S. 241, 246, N. 8 (1967). 
NEVERTHELESS, IT HAS GENERALLY BEEN RECOGNIZED THAT THE INTENT OF THE
DRAFTERS WAS TO PROVIDE A BROAD JURISDICTIONAL GRANT TO THE FEDERAL
COURTS.  SEE, E.G., MISHKIN, THE FEDERAL "QUESTION" IN THE DISTRICT
COURTS, 53 COL.L.REV.  157, 160 (1953); CHADBOURN & LEVIN, ORIGINAL
JURISDICTION OF FEDERAL QUESTIONS, 90 U.PA.L.REV.  639, 644-645
(1942).  AND, AS NOTED ABOVE, THE RESOLUTION OF THIS CASE DEPENDS
DIRECTLY ON CONSTRUCTION OF THE CONSTITUTION.  THE COURT HAS
CONSISTENTLY HELD SUCH SUITS ARE AUTHORIZED BY THE STATUTE.  BELL V.
HOOD, SUPRA; KING COUNTY V. SEATTLE SCHOOL DISTRICT NO. 1, SUPRA.  SEE,
E.G., GULLY V. FIRST NAT. BANK IN MERIDIAN, 299 U.S. 109, 112 (1936);
THE FAIR V. KOHLER DIE & SPECIALTY CO., 228 U.S. 22, 25 (1913). 

AS RESPONDENTS RECOGNIZE, THERE IS NOTHING IN THE WORDING OR
LEGISLATIVE HISTORY OF SEC. 1331 OR IN THE DECISIONS OF THIS COURT
WHICH WOULD INDICATE THAT THERE IS ANY BASIS FOR THE INTERPRETATION
THEY WOULD GIVE THAT SECTION.  NOR DO WE THINK THE PASSAGE OF THE FORCE
ACT INDICATES THAT SEC. 1331 DOES NOT CONFER JURISDICTION IN THIS
CASE.  THE FORCE ACT IS LIMITED TO ELECTION CHALLENGES WHERE A DENIAL
OF THE RIGHT TO VOTE IN VIOLATION OF THE FIFTEENTH AMENDMENT IS
ALLEGED.  SEE 28 U.S.C. 1344.  FURTHER, THE ACT WAS PASSED FIVE YEARS
BEFORE THE ORIGINAL VERSION OF SEC. 1331 WAS ENACTED.  WHILE IT MIGHT
BE INFERRED THAT CONGRESS INTENDED TO GIVE EACH HOUSE THE EXCLUSIVE
POWER TO DECIDE CONGRESSIONAL ELECTION CHALLENGES, /39/  THERE IS
ABSOLUTELY NO INDICATION THAT THE PASSAGE OF THIS ACT EVIDENCES AN
INTENTION TO IMPOSE OTHER RESTRICTIONS ON THE BROAD GRANT OF
JURISDICTION IN SEC. 1331. 

   VI.

        JUSTICIABILITY. 

HAVING CONCLUDED THAT THE COURT OF APPEALS CORRECTLY RULED THAT THE
DISTRICT COURT HAD JURISDICTION OVER THE SUBJECT MATTER, WE TURN TO THE
QUESTION WHETHER THE CASE IS JUSTICIABLE.  TWO DETERMINATIONS MUST BE
MADE IN THIS REGARD.  FIRST, WE MUST DECIDE WHETHER THE CLAIM PRESENTED
AND THE RELIEF SOUGHT ARE OF THE TYPE WHICH ADMIT OF JUDICIAL
RESOLUTION.  SECOND, WE MUST DETERMINE WHETHER THE STRUCTURE OF THE
FEDERAL GOVERNMENT RENDERS THE ISSUE PRESENTED A "POLITICAL QUESTION"--
THAT IS, A QUESTION WHICH IS NOT JUSTICIABLE IN FEDERAL COURT BECAUSE
OF THE SEPARATION OF POWERS PROVIDED BY THE CONSTITUTION. 

        A. GENERAL CONSIDERATIONS. 

IN DECIDING GENERALLY WHETHER A CLAIM IS JUSTICIABLE, A COURT MUST
DETERMINE WHETHER "THE DUTY ASSERTED CAN BE JUDICIALLY IDENTIFIED AND
ITS BREACH JUDICIALLY DETERMINED, AND WHETHER PROTECTION FOR THE RIGHT
ASSERTED CAN BE JUDICIALLY MOLDED."  BAKER V. CARR, SUPRA, AT 198. 
RESPONDENTS DO NOT SERIOUSLY CONTEND THAT THE DUTY ASSERTED AND ITS
ALLEGED BREACH CANNOT BE JUDICIALLY DETERMINED.  IF PETITIONERS ARE
CORRECT, THE HOUSE HAD A DUTY TO SEAT POWELL ONCE IT DETERMINED HE MET
THE STANDING REQUIREMENTS SET FORTH IN THE CONSTITUTION.  IT IS
UNDISPUTED THAT HE MET THOSE REQUIREMENTS AND THAT HE WAS NEVERTHELESS
EXCLUDED. 

RESPONDENTS DO MAINTAIN, HOWEVER, THAT THIS CASE IS NOT JUSTICIABLE
BECAUSE, THEY ASSERT, IT IS IMPOSSIBLE FOR A FEDERAL COURT TO "MOLD
EFFECTIVE RELIEF FOR RESOLVING THIS CASE."  RESPONDENTS EMPHASIZE THAT
PETITIONERS ASKED FOR COERCIVE RELIEF AGAINST THE OFFICERS OF THE
HOUSE, AND, THEY CONTEND, FEDERAL COURTS CANNOT ISSUE MANDAMUS OR
INJUNCTIONS COMPELLING OFFICERS OR EMPLOYEES OF THE HOUSE TO PERFORM
SPECIFIC OFFICIAL ACTS.  RESPONDENTS RELY PRIMARILY ON THE SPEECH OR
DEBATE CLAUSE TO SUPPORT THIS CONTENTION.     WE NEED EXPRESS NO
OPINION ABOUT THE APPROPRIATENESS OF COERCIVE RELIEF IN THIS CASE, FOR
PETITIONERS SOUGHT A DECLARATORY JUDGMENT, A FORM OF RELIEF THE
DISTRICT COURT COULD HAVE ISSUED.  THE DECLARATORY JUDGMENT ACT, 28
U.S.C. 2201, PROVIDES THAT A DISTRICT COURT MAY "DECLARE THE RIGHTS . .
. OF ANY INTERESTED PARTY . . . WHETHER OR NOT FURTHER RELIEF IS OR
COULD BE SOUGHT."  THE AVAILABILITY OF DECLARATORY RELIEF DEPENDS ON
WHETHER THERE IS A LIVE DISPUTE BETWEEN THE PARTIES, GOLDEN V.
ZWICKLER, 394 U.S. 103 (1969), AND A REQUEST FOR DECLARATORY RELIEF MAY
BE CONSIDERED INDEPENDENTLY OF WHETHER OTHER FORMS OF RELIEF ARE
APPROPRIATE.  SEE UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 93
(1947); 6A J. MOORE, FEDERAL PRACTICE PARA. 57.08(3) (2D ED. 1966); CF.
UNITED STATES V. CALIFORNIA, 332 U.S. 19, 25-26 (1947).  WE THUS
CONCLUDE THAT IN TERMS OF THE GENERAL CRITERIA OF JUSTICIABILITY, THIS
CASE IS JUSTICIABLE. 

B. POLITICAL QUESTION DOCTRINE. 

        1.  TEXTUALLY DEMONSTRABLE CONSTITUTIONAL COMMITMENT. 

RESPONDENTS MAINTAIN THAT EVEN IF THIS CASE IS OTHERWISE
JUSTICIABLE, IT PRESENTS ONLY A POLITICAL QUESTION.  IT IS WELL
ESTABLISHED THAT THE FEDERAL COURTS WILL NOT ADJUDICATE POLITICAL
QUESTIONS.  SEE, E.G., COLEMAN V. MILLER, 307 U.S. 433 (1939); OETJEN
V. CENTRAL LEATHER CO., 246 U.S. 297 (1918).  IN BAKER V. CARR, SUPRA,
WE NOTED THAT POLITICAL QUESTIONS ARE NOT JUSTICIABLE PRIMARILY BECAUSE
OF THE SEPARATION OF POWERS WITHIN THE FEDERAL GOVERNMENT.  AFTER
REVIEWING OUR DECISIONS IN THIS AREA, WE CONCLUDED THAT ON THE SURFACE
OF ANY CASE HELD TO INVOLVE A POLITICAL QUESTION WAS AT LEAST ONE OF
THE FOLLOWING FORMULATIONS: 

"A TEXTUALLY DEMONSTRABLE CONSTITUTIONAL COMMITMENT OF THE ISSUE TO
A COORDINATE POLITICAL DEPARTMENT; OR A LACK OF JUDICIALLY DISCOVERABLE
AND MANAGEABLE STANDARDS FOR RESOLVING IT; OR THE IMPOSSIBILITY OF
DECIDING WITHOUT AN INITIAL POLICY DETERMINATION OF A KIND CLEARLY FOR
NONJUDICIAL DISCRETION; OR THE IMPOSSIBILITY OF A COURT'S UNDERTAKING
INDEPENDENT RESOLUTION WITHOUT EXPRESSING LACK OF THE RESPECT DUE
COORDINATE BRANCHES OF GOVERNMENT; OR AN UNUSUAL NEED FOR UNQUESTIONING
ADHERENCE TO A POLITICAL DECISION ALREADY MADE; OR THE POTENTIALITY OF
EMBARRASSMENT FROM MULTIFARIOUS PRONOUNCEMENTS BY VARIOUS DEPARTMENTS
ON ONE QUESTION."  369 U.S.,AT 217. 

RESPONDENTS' FIRST CONTENTION IS THAT THIS CASE PRESENTS A POLITICAL
QUESTION BECAUSE UNDER ART. I, SEC. 5, THERE HAS BEEN A "TEXTUALLY
DEMONSTRABLE CONSTITUTIONAL COMMITMENT" TO THE HOUSE OF THE
"ADJUDICATORY POWER" TO DETERMINE POWELL'S QUALIFICATIONS.  THUS IT IS
ARGUED THAT THE HOUSE, AND THE HOUSE ALONE, HAS POWER TO DETERMINE WHO
IS QUALIFIED TO BE A MEMBER.  /40/ 

IN ORDER TO DETERMINE WHETHER THERE HAS BEEN A TEXTUAL COMMITMENT TO
A CO-ORDINATE DEPARTMENT OF THE GOVERNMENT, WE MUST INTERPRET THE
CONSTITUTION.  IN OTHER WORDS, WE MUST FIRST DETERMINE WHAT POWER THE
CONSTITUTION CONFERS UPON THE HOUSE THROUGH ART. I, SEC. 5, BEFORE WE
CAN DETERMINE TO WHAT EXTENT, IF ANY, THE EXERCISE OF THAT POWER IS
SUBJECT TO JUDICIAL REVIEW.  RESPONDENTS MAINTAIN THAT THE HOUSE HAS
BROAD POWER UNDER SEC. 5, AND, THEY ARGUE, THE HOUSE MAY DETERMINE
WHICH ARE THE QUALIFICATIONS NECESSARY FOR MEMBERSHIP.  ON THE OTHER
HAND, PETITIONERS ALLEGE THAT THE CONSTITUTION PROVIDES THAT AN ELECTED
REPRESENTATIVE MAY BE DENIED HIS SEAT ONLY IF THE HOUSE FINDS HE DOES
NOT MEET ONE OF THE STANDING QUALIFICATIONS EXPRESSLY PRESCRIBED BY THE
CONSTITUTION. 

IF EXAMINATION OF SEC. 5 DISCLOSED THAT THE CONSTITUTION GIVES THE
HOUSE JUDICIALLY UNREVIEWABLE POWER TO SET QUALIFICATIONS FOR
MEMBERSHIP AND TO JUDGE WHETHER PROSPECTIVE MEMBERS MEET THOSE
QUALIFICATIONS, FURTHER REVIEW OF THE HOUSE DETERMINATION MIGHT WELL BE
BARRED BY THE POLITICAL QUESTION DOCTRINE.  ON THE OTHER HAND, IF THE
CONSTITUTION GIVES THE HOUSE POWER TO JUDGE ONLY WHETHER ELECTED
MEMBERS POSSESS THE THREE STANDING QUALIFICATIONS SET FORTH IN THE
CONSTITUTION, /41/  FURTHER CONSIDERATION WOULD BE NECESSARY TO
DETERMINE WHETHER ANY OF THE OTHER FORMULATIONS OF THE POLITICAL
QUESTION DOCTRINE ARE "INEXTRICABLE FROM THE CASE AT BAR."  /42/  BAKER
V. CARR, SUPRA, AT 217. 

IN OTHER WORDS, WHETHER THERE IS A "TEXTUALLY DEMONSTRABLE
CONSTITUTIONAL COMMITMENT OF THE ISSUE TO A CO-ORDINATE POLITICAL
DEPARTMENT" OF GOVERNMENT AND WHAT IS THE SCOPE OF SUCH COMMITMENT ARE
QUESTIONS WE MUST RESOLVE FOR THE FIRST TIME IN THIS CASE.  /43/  FOR,
AS WE POINTED OUT IN BAKER V. CARR, SUPRA, "(DECIDING WHETHER A MATTER
HAS IN ANY MEASURE BEEN COMMITTED BY THE CONSTITUTION TO ANOTHER BRANCH
OF GOVERNMENT, OR WHETHER THE ACTION OF THAT BRANCH EXCEEDS WHATEVER
AUTHORITY HAS BEEN COMMITTED, IS ITSELF A DELICATE EXERCISE IN
CONSTITUTIONAL INTERPRETATION, AND IS A RESPONSIBILITY OF THIS COURT AS
ULTIMATE INTERPRETER OF THE CONSTITUTION."  ID., AT 211. 

IN ORDER TO DETERMINE THE SCOPE OF ANY "TEXTUAL COMMITMENT" UNDER
ART. I, SEC. 5, WE NECESSARILY MUST DETERMINE THE MEANING OF THE PHRASE
TO "BE THE JUDGE OF THE QUALIFICATIONS OF ITS OWN MEMBERS." 
PETITIONERS ARGUE THAT THE RECORDS OF THE DEBATES DURING THE
CONSTITUTIONAL CONVENTION; AVAILABLE COMMENTARY FROM THE POST
CONVENTION, PRE-RATIFICATION PERIOD; AND EARLY CONGRESSIONAL
APPLICATIONS OF ART. I, SEC. 5, SUPPORT THEIR CONSTRUCTION OF THE
THE PRE-CONVENTION PRACTICES OF THE ENGLISH PARLIAMENT AND AMERICAN
COLONIAL ASSEMBLIES DEMONSTRATES THAT BY 1787, A LEGISLATURE'S POWER TO
JUDGE THE QUALIFICATIONS OF ITS MEMBERS WAS GENERALLY UNDERSTOOD TO
ENCOMPASS EXCLUSION OR EXPULSION ON THE GROUND THAT AN INDIVIDUAL'S
CHARACTER OR PAST CONDUCT RENDERED HIM UNFIT TO SERVE.  WHEN THE
CONSTITUTION AND THE DEBATES OVER ITS ADOPTION ARE THUS VIEWED IN
HISTORICAL PERSPECTIVE, ARGUE RESPONDENTS, IT BECOMES CLEAR THAT THE
"QUALIFICATIONS" EXPRESSLY SET FORTH IN THE CONSTITUTION WERE NOT MEANT
TO LIMIT THE LONG-RECOGNIZED LEGISLATIVE POWER TO EXCLUDE OR EXPEL AT
WILL, BUT MERELY TO ESTABLISH "STANDING INCAPACITIES," WHICH COULD BE
ALTERED ONLY BY A CONSTITUTIONAL AMENDMENT.  OUR EXAMINATION OF THE
RELEVANT HISTORICAL MATERIALS LEADS US TO THE CONCLUSION THAT
PETITIONERS ARE CORRECT AND THAT THE CONSTITUTION LEAVES THE HOUSE /44/
WITHOUT AUTHORITY TO EXCLUDE ANY PERSON, DULY ELECTED BY HIS
CONSTITUTENTS, WHO MEETS ALL THE REQUIREMENTS FOR MEMBERSHIP EXPRESSLY
PRESCRIBED IN THE CONSTITUTION. 

        A. THE PRE-CONVENTION PRECEDENTS. 

SINCE OUR REJECTION OF RESPONDENTS' INTERPRETATION OF SEC. 5 RESULTS
IN SIGNIFICANT MEASURE FROM A DISAGREEMENT WITH THEIR HISTORICAL
ANALYSIS, WE MUST CONSIDER THE RELEVANT HISTORICAL ANTECEDENTS IN
CONSIDERABLE DETAIL.  AS DO RESPONDENTS, WE BEGIN WITH THE ENGLISH AND
COLONIAL PRECEDENTS. 

THE EARLIEST ENGLISH EXCLUSION PRECEDENT APPEARS TO BE A DECLARATION
BY THE HOUSE OF COMMONS IN 1553 "THAT ALEX.  NOWELL, BEING PREBENDARY
(I.E., A CLERGYMAN) IN WESTMINSTER, AND THEREBY HAVING VOICE IN THE
CONVOCATION HOUSE, CANNOT BE A MEMBER OF THIS HOUSE . . . ."  J.
TANNER, TUDOR CONSTITUTIONAL DOCUMENTS:  A.D. 1485-1603, P. 596 (2D ED.
1930).  THIS DECISION, HOWEVER, WAS CONSISTENT WITH A LONG-ESTABLISHED
TRADITION THAT CLERGY WHO PARTICIPATED IN THEIR OWN REPRESENTATIVE
ASSEMBLIES OR CONVOCATIONS WERE INELIGIBLE FOR MEMBERSHIP IN THE HOUSE
OF COMMONS.  /45/  SEE 1 E.PORRITT,THE UNREFORMED HOUSE OF COMMONS 125
(1963); T. TASWELL-LANGMEAD'S ENGLISH CONSTITUTIONAL HISTORY 142-143
(11TH ED.T. PLUCKNETT 1960).  THE TRADITIONAL INELIGIBILITY OF
CLERGYMEN WAS RECOGNIZED AS A STANDING INCAPACITY.  /46/  SEE 1
W.BLACKSTONE'S COMMENTARIES *175.  NOWELL'S EXCLUSION, THEREFORE, IS
IRRELEVANT TO THE PRESENT CASE, FOR PETITIONERS CONCEDE-- AND WE AGREE-
THAT IF POWELL HAD NOT MET ONE OF THE STANDING QUALIFICATIONS SET
FORTH IN THE CONSTITUTION, HE COULD HAVE BEEN EXCLUDED UNDER ART. I,
SEC. 5.  THE EARLIEST COLONIAL EXCLUSIONS ALSO FAIL TO SUPPORT
RESPONDENTS' THEORY.  /47/ 

RESPONDENTS' REMAINING 16TH AND 17TH CENTURY ENGLISH PRECEDENTS ALL
ARE CASES OF EXPULSION, ALTHOUGH SOME WERE FOR MISDEEDS NOT ENCOMPASSED
WITHIN RECOGNIZED STANDING INCAPACITIES EXISTING EITHER AT THE TIME OF
THE EXPULSIONS OR AT THE TIME THE CONSTITUTION WAS DRAFTED IN 1787. 
/48/  ALTHOUGH THESE EARLY EXPULSION ORDERS OCCASIONALLY CONTAINED
STATEMENTS SUGGESTING THAT THE INDIVIDUAL EXPELLED WAS THEREAFTER
INELIGIBLE FOR RE-ELECTION AT LEAST FOR THE DURATION OF THE PARLIAMENT
FROM WHICH HE WAS EXPELLED, /49/  THERE IS NO INDICATION THAT ANY WERE
RE-ELECTED AND THEREAFTER EXCLUDED.  RESPONDENTS' COLONIAL PRECEDENTS
DURING THIS PERIOD FOLLOW A SIMILAR PATTERN.  /50/ 

APPARENTLY THE RE-ELECTION OF AN EXPELLED MEMBER FIRST OCCURRED IN
1712.  THE HOUSE OF COMMONS HAD EXPELLED ROBERT WALPOLE FOR RECEIVING
KICKBACKS FOR CONTRACTS RELATING TO "FORAGING THE TROOPS," 17
H.C.JOUR.  28, AND COMMITTED HIM TO THE TOWER.  NEVERTHELESS, TWO
MONTHS LATER HE WAS RE-ELECTED.  THE HOUSE THEREUPON RESOLVED "(THAT
ROBERT WALPOLE, ESQUIRE, HAVING BEEN, THIS SESSION OF PARLIAMENT,
COMMITTED A PRISONER TO THE TOWER OF LONDON, AND EXPELLED (FROM) THIS
HOUSE, . . . IS, INCAPABLE OF BEING ELECTED A MEMBER TO SERVE IN THIS
PRESENT PARLIAMENT . . . ."  ID., AT 128.  A NEW ELECTION WAS ORDERED,
AND WALPOLE WAS NOT RE-ELECTED.  AT LEAST TWO SIMILAR EXCLUSIONS AFTER
AN INITIAL EXPULSION WERE EFFECTED IN THE AMERICAN COLONIES DURING THE
FIRST HALF OF THE 18TH CENTURY.  /51/ 

RESPONDENTS URGE THAT THE WALPOLE CASE PROVIDES STRONG SUPPORT FOR
THEIR CONCLUSION THAT THE PRE-CONVENTION ENGLISH AND COLONIAL PRACTICE
WAS THAT MEMBERS-ELECT COULD BE EXCLUDED FOR THEIR PRIOR MISDEEDS AT
THE SOLE DISCRETION OF THE LEGISLATIVE BODY TO WHICH THEY HAD BEEN
ELECTED.  HOWEVER, THIS CONCLUSION OVERLOOKS AN IMPORTANT LIMITING
CHARACTERISTIC OF THE WALPOLE CASE AND OF BOTH THE COLONIAL EXCLUSION
CASES ON WHICH RESPONDENTS RELY:  THE EXCLUDED MEMBER HAD BEEN
PREVIOUSLY EXPELLED.  MOREOVER, WALPOLE WAS EXCLUDED ONLY FOR THE
REMAINDER OF THE PARLIAMENT FROM WHICH HE HAD BEEN EXPELLED.  "THE
THEORY SEEMS TO HAVE BEEN THAT EXPULSION LASTED AS LONG AS THE
PARLIAMENT . . . ."  TASWELL-LANGMEAD, SUPRA, AT 584, N. 99.  ACCORD, 1
W.BLACKSTONE'S COMMENTARIES *176.  THUS, WALPOLE'S EXCLUSION JUSTIFIES
ONLY THE PROPOSITION THAT AN EXPULSION LASTED FOR THE REMAINDER OF THE
PARTICULAR PARLIAMENT, AND THE EXPELLED MEMBER WAS THEREFORE SUBJECT TO
SUBSEQUENT EXCLUSION IF RE-ELECTED PRIOR TO THE NEXT GENERAL ELECTION. 
THE TWO COLONIAL CASES ARGUABLY SUPPORT A SOMEWHAT BROADER PRINCIPLE,
I.E., THAT THE ASSEMBLY COULD PERMANENTLY EXPEL.  APPARENTLY THE
COLONIES DID NOT CONSISTENTLY ADHERE TO THE THEORY THAT AN EXPULSION
LASTED ONLY UNTIL THE ELECTION OF A NEW ASSEMBLY.  M. CLARKE,
PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES 196-202 (1943).  /52/
CLEARLY, HOWEVER, NONE OF THESE CASES SUPPORTS RESPONDENTS' CONTENTION
THAT BY THE 18TH CENTURY THE ENGLISH PARLIAMENT AND COLONIAL ASSEMBLIES
HAD ASSUMED ABSOLUTE DISCRETION TO EXCLUDE ANY MEMBER-ELECT THEY DEEMED
UNFIT TO SERVE.  RATHER, THEY SEEM TO DEMONSTRATE THAT A MEMBER COULD
BE EXCLUDED ONLY IF HE HAD FIRST BEEN EXPELLED. 

EVEN IF THESE CASES COULD BE CONSTRUED TO SUPPORT RESPONDENTS'
CONTENTION, THEIR PRECEDENTIAL VALUE WAS NULLIFIED PRIOR TO THE
CONSTITUTIONAL CONVENTION.  BY 1782, AFTER A LONG STRUGGLE, THE
ARBITRARY EXERCISE OF THE POWER TO EXCLUDE WAS UNEQUIVOCALLY REPUDIATED
BY A HOUSE OF COMMONS RESOLUTION WHICH ENDED THE MOST NOTORIOUS ENGLISH
ELECTION DISPUTE OF THE 18TH CENTURY-- THE JOHN WILKES CASE.  WHILE
SERVING AS A MEMBER OF PARLIAMENT IN 1763, WILKES PUBLISHED AN ATTACK
ON A RECENT PEACE TREATY WITH FRANCE, CALLING IT A PRODUCT OF BRIBERY
AND CONDEMNING THE CROWN'S MINISTERS AS "'THE TOOLS OF DESPOTISM AND
CORRUPTION.'"  R. POSTGATE, THAT DEVIL WILKES 53 (1929).  WILKES AND
OTHERS WHO WERE INVOLVED WITH THE PUBLICATION IN WHICH THE ATTACK
APPEARED WERE ARRESTED.  /53/  PRIOR TO WILKES' TRIAL, THE HOUSE OF
COMMONS EXPELLED HIM FOR PUBLISHING "A FALSE, SCANDALOUS, AND SEDITIOUS
LIBEL."  15 PARL.HIST.ENG.  1393 (1764).  WILKES THEN FLED TO FRANCE
AND WAS SUBSEQUENTLY SENTENCED TO EXILE.  9 L.GIPSON,THE BRITISH EMPIRE
BEFORE THE AMERICAN REVOLUTION 37 (1956). 

WILKES RETURNED TO ENGLAND IN 1768, THE SAME YEAR IN WHICH THE
PARLIAMENT FROM WHICH HE HAD BEEN EXPELLED WAS DISSOLVED.  HE WAS
ELECTED TO THE NEXT PARLIAMENT, AND HE THEN SURRENDERED HIMSELF TO THE
COURT OF KING'S BENCH.  WILKES WAS CONVICTED OF SEDITIOUS LIBEL AND
SENTENCED TO 22 MONTHS' IMPRISONMENT.  THE NEW PARLIAMENT DECLARED HIM
INELIGIBLE FOR MEMBERSHIP AND ORDERED THAT HE BE "EXPELLED THIS
HOUSE."  16 PARL.HIST.ENG.  545 (1769).  ALTHOUGH WILKES WAS RE-ELECTED
TO FILL THE VACANT SEAT THREE TIMES, EACH TIME THE SAME PARLIAMENT
DECLARED HIM INELIGIBLE AND REFUSED TO SEAT HIM.  SEE 11 GIPSON, SUPRA,
AT 207-215.  /54/ 

WILKES WAS RELEASED FROM PRISON IN 1770 AND WAS AGAIN ELECTED TO
PARLIAMENT IN 1774.  FOR THE NEXT SEVERAL YEARS, HE UNSUCCESSFULLY
CAMPAIGNED TO HAVE THE RESOLUTIONS EXPELLING HIM AND DECLARING HIM
INCAPABLE OF RE-ELECTION EXPUNGED FROM THE RECORD.  FINALLY, IN 1782,
THE HOUSE OF COMMONS VOTED TO EXPUNGE THEM, RESOLVING THAT THE PRIOR
HOUSE ACTIONS WERE "SUBVERSIVE OF THE RIGHTS OF THE WHOLE BODY OF
ELECTORS OF THIS KINGDOM."  22 PARL.HIST.ENG.  1411 (1782). 

WITH THE SUCCESSFUL RESOLUTION OF WILKES' LONG AND BITTER STRUGGLE
FOR THE RIGHT OF THE BRITISH ELECTORATE TO BE REPRESENTED BY MEN OF
THEIR OWN CHOICE, IT IS EVIDENT THAT, ON THE EVE OF THE CONSTITUTIONAL
CONVENTION, ENGLISH PRECEDENT STOOD FOR THE PROPOSITION THAT "THE LAW
OF THE LAND HAD REGULATED THE QUALIFICATIONS OF MEMBERS TO SERVE IN
PARLIAMENT" AND THOSE QUALIFICATIONS WERE "NOT OCCASIONAL BUT FIXED." 
16 PARL.HIST.ENG.  589, 590 %1769).  CERTAINLY ENGLISH PRACTICE DID NOT
SUPPORT, NOR HAD IT EVER SUPPORTED, RESPONDENTS' ASSERTION THAT THE
POWER TO JUDGE QUALIFICATIONS WAS GENERALLY UNDERSTOOD TO ENCOMPASS THE
RIGHT TO EXCLUDE MEMBERS-ELECT FOR GENERAL MISCONDUCT NOT WITHIN
STANDING QUALIFICATIONS.  WITH THE REPUDIATION IN 1782 OF THE ONLY TWO
PRECEDENTS FOR EXCLUDING A MEMBER-ELECT WHO HAD BEEN PREVIOUSLY
EXPELLED, /55/  IT APPEARS THAT THE HOUSE OF COMMONS ALSO REPUDIATED
ANY "CONTROL OVER THE ELIGIBILITY OF CANDIDATES, EXCEPT IN THE
ADMINISTRATION OF THE LAWS WHICH DEFINE THEIR (STANDING)
QUALIFICATIONS."  T. MAY'S PARLIAMENTARY PRACTICE 66 (13TH ED.T.WEBSTER
1924).  SEE TASWELL-LANGMEAD, SUPRA, AT 585.  /56/     THE RESOLUTION
OF THE WILKES CASE SIMILARLY UNDERMINED THE PRECEDENTIAL VALUE OF THE
EARLIER COLONIAL EXCLUSIONS, FOR THE PRINCIPLES UPON WHICH THEY HAD
BEEN BASED WERE REPUDIATED BY THE VERY BODY THE COLONIAL ASSEMBLIES
SOUGHT TO IMITATE AND WHOSE PRECEDENTS THEY GENERALLY FOLLOWED.  SEE
CLARKE, SUPRA, AT 54, 59-60, 196.  THUS, IN 1784 THE COUNCIL OF CENSORS
OF THE PENNSYLVANIA ASSEMBLY /57/  DENOUNCED THE PRIOR EXPULSION OF AN
UNNAMED ASSEMBLYMAN, RULING THAT HIS EXPULSION HAD NOT BEEN EFFECTED IN
CONFORMITY WITH THE RECENTLY ENACTED PENNSYLVANIA CONSTITUTION.  /58/
IN THE COURSE OF ITS REPORT, THE COUNCIL DENOUNCED BY NAME THE
PARLIAMENTARY EXCLUSIONS OF BOTH WALPOLE AND WILKES, STATING THAT THEY
"REFLECTED DISHONOR ON NONE BUT THE AUTHORS OF THESE VIOLENCES." 
PENNSYLVANIA CONVENTION PROCEEDINGS:  1776 AND 1790, P. 89 (1825). 

WILKES' STRUGGLE AND HIS ULTIMATE VICTORY HAD A SIGNIFICANT IMPACT
IN THE AMERICAN COLONIES.  HIS ADVOCACY OF LIBERTARIAN CAUSES /59/  AND
HIS PURSUIT OF THE RIGHT TO BE SEATED IN PARLIAMENT BECAME A CAUSE
CELEBRE FOR THE COLONISTS.  "(THE CRY OF 'WILKES AND LIBERTY' ECHOED
LOUDLY ACROSS THE ATLANTIC OCEAN AS WIDE PUBLICITY WAS GIVEN TO EVERY
STEP OF WILKES'S PUBLIC CAREER IN THE COLONIAL PRESS . . . . THE
REACTION IN AMERICA TOOK ON SIGNIFICANT PROPORTIONS.  COLONIALS TENDED
TO IDENTIFY THEIR CAUSE WITH THAT OF WILKES.  THEY SAW HIM AS A POPULAR
HERO AND A MARTYR TO THE STRUGGLE FOR LIBERTY . . . . THEY NAMED TOWNS,
COUNTIES, AND EVEN CHILDREN IN HIS HONOUR."  11 GIPSON, SUPRA, AT 222. 
/60/  IT IS WITHIN THIS HISTORICAL CONTEXT THAT WE MUST EXAMINE THE
CONVENTION DEBATES IN 1787, JUST FIVE YEARS AFTER WILKES' FINAL
VICTORY. 

B. CONVENTION DEBATES. 

RELYING HEAVILY ON CHARLES WARREN'S ANALYSIS /61/  OF THE CONVENTION
DEBATES, PETITIONERS ARGUE THAT THE PROCEEDINGS MANIFEST THE FRAMERS'
UNEQUIVOCAL INTENTION TO DENY EITHER BRANCH OF CONGRESS THE AUTHORITY
TO ADD TO OR OTHERWISE VARY THE MEMBERSHIP QUALIFICATIONS EXPRESSLY SET
FORTH IN THE CONSTITUTION.  WE DO NOT COMPLETELY AGREE, FOR THE DEBATES
ARE SUBJECT TO OTHER INTERPRETATIONS.  HOWEVER, WE HAVE CONCLUDED THAT
THE RECORDS OF THE DEBATES, VIEWED IN THE CONTEXT OF THE BITTER
STRUGGLE FOR THE RIGHT TO FREELY CHOOSE REPRESENTATIVES WHICH HAD
RECENTLY CONCLUDED IN ENGLAND AND IN LIGHT OF THE DISTINCTION THE
FRAMERS MADE BETWEEN THE POWER TO EXPEL AND THE POWER TO EXCLUDE,
INDICATE THAT PETITIONERS' ULTIMATE CONCLUSION IS CORRECT. 

THE CONVENTION OPENED IN LATE MAY 1787.  BY THE END OF JULY, THE
DELEGATES ADOPTED, WITH A MINIMUM OF DEBATE, AGE REQUIREMENTS FOR
MEMBERSHIP IN BOTH THE SENATE AND THE HOUSE.  THE CONVENTION THEN
APPOINTED A COMMITTEE OF DETAIL TO DRAFT A CONSTITUTION INCORPORATING
THESE AND OTHER RESOLUTIONS ADOPTED DURING THE PRECEDING MONTHS.  TWO
DAYS AFTER THE COMMITTEE WAS APPOINTED, GEORGE MASON, OF VIRGINIA,
MOVED THAT THE COMMITTEE CONSIDER A CLAUSE "'REQUIRING CERTAIN
QUALIFICATIONS OF LANDED PROPERTY & CITIZENSHIP'" AND DISQUALIFYING
FROM MEMBERSHIP IN CONGRESS PERSONS WHO HAD UNSETTLED ACCOUNTS OR WHO
WERE INDEBTED TO THE UNITED STATES.  2 FARRAND 121.  A VIGOROUS DEBATE
ENSUED.  CHARLES PINCKNEY AND GENERAL CHARLES C. PICKNEY, BOTH OF SOUTH
CAROLINA, MOVED TO EXTEND THESE INCAPACITIES TO BOTH THE JUDICIAL AND
EXECUTIVE BRANCHES OF THE NEW GOVERNMENT.  BUT JOHN DICKINSON, OF
DELAWARE, OPPOSED THE INCLUSION OF ANY STATEMENT OF QUALIFICATIONS IN
THE CONSTITUTION.  HE ARGUED THAT IT WOULD BE "IMPOSSIBLE TO MAKE A
COMPLEAT ONE, AND A PARTIAL ONE WOULD BY IMPLICATION TIE UP THE HANDS
OF THE LEGISLATURE FROM SUPPLYING THE OMISSIONS."  ID., AT 123.  /62/
DICKINSON'S ARGUMENT WAS REJECTED; AND, AFTER ELIMINATING THE
DISQUALIFICATION OF DEBTORS AND THE LIMITATION TO "LANDED" PROPERTY,
THE CONVENTION ADOPTED MASON'S PROPOSAL TO INSTRUCT THE COMMITTEE OF
DETAIL TO DRAFT A PROPERTY QUALIFICATION.  ID., AT 116-117. 

THE COMMITTEE REPORTED IN EARLY AUGUST, PROPOSING NO CHANGE IN THE
AGE REQUIREMENT; HOWEVER, IT DID RECOMMEND ADDING CITIZENSHIP AND
RESIDENCY REQUIREMENTS FOR MEMBERSHIP.  AFTER FIRST DEBATING WHAT THE
PRECISE REQUIREMENTS SHOULD BE, ON AUGUST 8, 1787, THE DELEGATES
UNANIMOUSLY ADOPTED THE THREE QUALIFICATIONS EMBODIED IN ART. I, SEC.
2.  ID., AT 213.  /63/ 

ON AUGUST 10, THE CONVENTION CONSIDERED THE COMMITTEE OF DETAIL'S
PROPOSAL THAT THE "LEGISLATURE OF THE UNITED STATES SHALL HAVE
AUTHORITY TO ESTABLISH SUCH UNIFORM QUALIFICATIONS OF THE MEMBERS OF
EACH HOUSE, WITH REGARD TO PROPERTY, AS TO THE SAID LEGISLATURE SHALL
SEEM EXPEDIENT."  ID., AT 179.  THE DEBATE ON THIS PROPOSAL DISCLOSES
MUCH ABOUT THE VIEWS OF THE FRAMERS ON THE ISSUE OF QUALIFICATIONS. 
FOR EXAMPLE, JAMES MADISON URGED ITS REJECTION, STATING THAT THE
PROPOSAL WOULD VEST 

"AN IMPROPER & DANGEROUS POWER IN THE LEGISLATURE.  THE
QUALIFICATIONS OF ELECTORS AND ELECTED WERE FUNDAMENTAL ARTICLES IN A
REPUBLICAN GOVT. AND OUGHT TO BE FIXED BY THE CONSTITUTION.  IF THE
LEGISLATURE COULD REGULATE THOSE OF EITHER, IT CAN BY DEGREES SUBVERT
THE CONSTITUTION.  A REPUBLIC MAY BE CONVERTED INTO AN ARISTOCRACY OR
OLIGARCHY AS WELL BY LIMITING THE NUMBER CAPABLE OF BEING ELECTED, AS
THE NUMBER AUTHORISED TO ELECT . . . . IT WAS A POWER ALSO, WHICH MIGHT
BE MADE SUBSERVIENT TO THE VIEWS OF ONE FACTION AGST.  ANOTHER. 
QUALIFICATIONS FOUNDED ON ARTIFICIAL DISTINCTIONS MAY BE DEVISED, BY
THE STRONGER IN ORDER TO KEEP OUT PARTIZANS OF (A WEAKER) FACTION." 
ID., AT 249-250.  /64/ SIGNIFICANTLY, MADISON'S ARGUMENT WAS NOT AIMED
AT THE IMPOSITION OF A PROPERTY QUALIFICATION AS SUCH, BUT RATHER AT
THE DELEGATION TO THE CONGRESS OF THE DISCRETIONARY POWER TO ESTABLISH
ANY QUALIFICATIONS.  THE PARALLEL BETWEEN MADISON'S ARGUMENTS AND THOSE
MADE IN WILKES'  BEHALF IS STRIKING.  /65/ 

IN VIEW OF WHAT FOLLOWED MADISON'S SPEECH, IT APPEARS THAT ON THIS
CRITICAL DAY THE FRAMERS WERE FACING AND THEN REJECTING THE POSSIBILITY
THAT THE LEGISLATURE WOULD HAVE POWER TO USURP THE "INDISPUTABLE RIGHT
(OF THE PEOPLE) TO RETURN WHOM THEY THOUGHT PROPER"  /66/  TO THE
LEGISLATURE.  OLIVER ELLSWORTH, OF CONNECTICUT, NOTED THAT A
LEGISLATIVE POWER TO ESTABLISH PROPERTY QUALIFICATIONS WAS EXCEPTIONAL
AND "DANGEROUS BECAUSE IT WOULD BE MUCH MORE LIABLE TO ABUSE."  ID., AT
250.  GOUVERNEUR MORRIS THEN MOVED TO STRIKE "WITH REGARD TO PROPERTY"
FROM THE COMMITTEE'S PROPOSAL.  HIS INTENTION WAS "TO LEAVE THE
LEGISLATURE ENTIRELY AT LARGE."  IBID.  HUGH WILLIAMSON, OF NORTH
CAROLINA, EXPRESSED CONCERN THAT IF A MAJORITY OF THE LEGISLATURE
SHOULD HAPPEN TO BE "COMPOSED OF ANY PARTICULAR DESCRIPTION OF MEN, OF
LAWYERS FOR EXAMPLE, . . . THE FUTURE ELECTIONS MIGHT BE SECURED TO
THEIR OWN BODY."  IBID.  /67/  MADISON THEN REFERRED TO THE BRITISH
PARLIAMENT'S ASSUMPTION OF THE POWER TO REGULATE THE QUALIFICATIONS OF
BOTH ELECTORS AND THE ELECTED AND NOTED THAT "THE ABUSE THEY MADE OF IT
WAS A LESSON WORTHY OF OUR ATTENTION.  THEY HAD MADE THE CHANGES IN
BOTH CASES SUBSERVIENT TO THEIR OWN VIEWS, OR TO THE VIEWS OF POLITICAL
OR RELIGIOUS PARTIES."  IBID.  /68/ SHORTLY THEREAFTER, THE CONVENTION
REJECTED BOTH GOUVERNEUR MORRIS' MOTION AND THE COMMITTEE'S PROPOSAL. 
LATER THE SAME DAY, THE CONVENTION ADOPTED WITHOUT DEBATE THE PROVISION
AUTHORIZING EACH HOUSE TO BE "THE JUDGE OF THE . . . QUALIFICATIONS OF
ITS OWN MEMBERS."  ID., AT 254. 

ONE OTHER DECISION MADE THE SAME DAY IS VERY IMPORTANT TO
DETERMINING THE MEANING OF ART. I, SEC. 5.  WHEN THE DELEGATES REACHED
THE COMMITTEE OF DETAIL'S PROPOSAL TO EMPOWER EACH HOUSE TO EXPEL ITS
MEMBERS, MADISON "OBSERVED THAT THE RIGHT OF EXPULSION . . . WAS TOO
IMPORTANT TO BE EXERCISED BY A BARE MAJORITY OF A QUORUM:  AND IN
EMERGENCIES (ONE) FACTION MIGHT BE DANGEROUSLY ABUSED."  ID., AT 254. 
HE THEREFORE MOVED THAT "WITH THE CONCURRENCE OF TWO-THIRDS" BE
INSERTED.  WITH THE EXCEPTION OF ONE STATE, WHOSE DELEGATION WAS
DIVIDED, THE MOTION WAS UNANIMOUSLY APPROVED WITHOUT DEBATE, ALTHOUGH
GOUVERNEUR MORRIS NOTED HIS OPPOSITION.  THE IMPORTANCE OF THIS
DECISION CANNOT BE OVER-EMPHASIZED.  NONE OF THE PARTIES TO THIS SUIT
DISPUTES THAT PRIOR TO 1787 THE LEGISLATIVE POWERS TO JUDGE
QUALIFICATIONS AND TO EXPEL WERE EXERCISED BY A MAJORITY VOTE.  INDEED,
WITHOUT EXCEPTION, THE ENGLISH AND COLONIAL ANTECEDENTS TO ART. I, SEC.
5, CLS. 1 AND 2, SUPPORT THIS CONCLUSION.  THUS, THE CONVENTION'S
DECISION TO INCREASE THE VOTE REQUIRED TO EXPEL, BECAUSE THAT POWER WAS
"TOO IMPORTANT TO BE EXERCISED BY A BARE MAJORITY," WHILE AT THE SAME
TIME NOT SIMILARLY RESTRICTING THE POWER TO JUDGE QUALIFICATIONS, IS
COMPELLING EVIDENCE THAT THEY CONSIDERED THE LATTER ALREADY LIMITED BY
THE STANDING QUALIFICATIONS PREVIOUSLY ADOPTED.  /69/ 

RESPONDENTS URGE, HOWEVER, THAT THESE EVENTS MUST BE CONSIDERED IN
LIGHT OF WHAT THEY REGARD AS A VERY SIGNIFICANT CHANGE MADE IN ART. I,
SEC. 2, CL. 2, BY THE COMMITTEE OF STYLE.  WHEN THE COMMITTEE OF DETAIL
REPORTED THE PROVISION TO THE CONVENTION, IT READ: 

"EVERY MEMBER OF THE HOUSE OF REPRESENTATIVES SHALL BE OF THE AGE OF
TWENTY FIVE YEARS AT LEAST; SHALL HAVE BEEN A CITIZEN OF (IN) THE
UNITED STATES FOR AT LEAST THREE YEARS BEFORE HIS ELECTION; AND SHALL
BE, AT THE TIME OF HIS ELECTION, A RESIDENT OF THE STATE IN WHICH HE
SHALL BE CHOSEN."  ID., AT 178.  HOWEVER, AS FINALLY DRAFTED BY THE
COMMITTEE OF STYLE, THESE QUALIFICATIONS WERE STATED IN THEIR PRESENT
NEGATIVE FORM.  RESPONDENTS NOTE THAT THERE ARE NO RECORDS OF THE
"DELIBERATIONS" OF THE COMMITTEE OF STYLE.  NEVERTHELESS, THEY
SPECULATE THAT THIS PARTICULAR CHANGE WAS DESIGNED TO MAKE THE
PROVISION CORRESPOND TO THE FORM USED BY BLACKSTONE IN LISTING THE
"STANDING INCAPACITIES" FOR MEMBERSHIP IN THE HOUSE OF COMMONS.  SEE 1
W.BLACKSTONE'S COMMENTARIES *175-176.  BLACKSTONE, WHO WAS AN APOLOGIST
FOR THE ANTI-WILKES FORCES IN PARLIAMENT, /70/  HAD ADDED TO HIS
COMMENTARIES AFTER WILKES'  EXCLUSION THE ASSERTION THAT INDIVIDUALS
WHO WERE NOT INELIGIBLE FOR THE COMMONS UNDER THE STANDING INCAPACITIES
COULD STILL BE DENIED THEIR SEAT IF THE COMMONS DEEDED THEM UNFIT FOR
OTHER REASONS.  /71/  SINCE BLACKSTONE'S COMMENTARIES WAS WIDELY
CIRCULATED IN THE COLONIES, RESPONDENTS FURTHER SPECULATE THAT THE
COMMITTEE OF STYLE REPHRASED THE QUALIFICATIONS PROVISION IN THE
NEGATIVE TO CLARIFY THE DELEGATES'  INTENTION "ONLY TO PRESCRIBE THE
STANDING INCAPACITIES WITHOUT IMPOSING ANY OTHER LIMIT ON THE HISTORIC
POWER OF EACH HOUSE TO JUDGE QUALIFICATIONS ON A CASE BY CASE BASIS." 
/72/ 

RESPONDENTS' ARGUMENT IS INHERENTLY WEAK, HOWEVER, BECAUSE IT
ASSUMES THAT LEGISLATIVE BODIES HISTORICALLY POSSESSED THE POWER TO
JUDGE QUALIFICATIONS ON A CASE-BY-CASE BASIS.  AS NOTED ABOVE, THE
BASIS FOR THAT CONCLUSION WAS THE WALPOLE AND WILKES CASES, WHICH, BY
THE TIME OF THE CONVENTION, HAD BEEN DENOUNCED BY THE HOUSE OF COMMONS
AND REPUDIATED BY AT LEAST ONE STATE GOVERNMENT.  MOREOVER,
RESPONDENTS' ARGUMENT MISREPRESENTS THE FUNCTION OF THE COMMITTEE OF
STYLE.  IT WAS APPOINTED ONLY "TO REVISE THE STILE OF AND ARRANGE THE
ARTICLES WHICH HAD BEEN AGREED TO . . . ."  2 FARRAND 553.  "(THE
COMMITTEE . . . HAD NO AUTHORITY FROM THE CONVENTION TO MAKE
ALTERATIONS OF SUBSTANCE IN THE CONSTITUTION AS VOTED BY THE
CONVENTION, NOR DID IT PURPORT TO DO SO; AND CERTAINLY THE CONVENTION
HAD NO BELIEF . . . THAT ANY IMPORTANT CHANGE WAS, IN FACT, MADE IN THE
PROVISIONS AS TO QUALIFICATIONS ADOPTED BY IT ON AUGUST 10."  /73/ 

PETITIONERS ALSO ARGUE THAT THE POST-CONVENTION DEBATES OVER THE
CONSTITUTION'S RATIFICATION SUPPORT THEIR INTERPRETATION OF SEC. 5. 
FOR EXAMPLE, THEY EMPHASIZE HAMILTON'S REPLY TO THE ANTIFEDERALIST
CHARGE THAT THE NEW CONSTITUTION FAVORED THE WEALTHY AND WELL-BORN: 

"THE TRUTH IS THAT THERE IS NO METHOD OF SECURING TO THE RICH THE
PREFERENCE APPREHENDED BUT BY PRESCRIBING QUALIFICATIONS OF PROPERTY
EITHER FOR THOSE WHO MAY ELECT OR BE ELECTED.  BUT THIS FORMS NO PART
OF THE POWER TO BE CONFERRED UPON THE NATIONAL GOVERNMENT.  ITS
AUTHORITY WOULD BE EXPRESSLY RESTRICTED TO THE REGULATION OF THE TIMES,
THE PLACES, THE MANNER OF ELECTIONS.  THE QUALIFICATIONS OF THE PERSONS
WHO MAY CHOOSE OR BE CHOSEN, AS HAS BEEN REMARKED UPON OTHER OCCASIONS,
ARE DEFINED AND FIXED IN THE CONSTITUTION, AND ARE UNALTERABLE BY THE
LEGISLATURE."  THE FEDERALIST PAPERS 371 (MENTOR ED. 1961). 

MADISON HAD EXPRESSED SIMILAR VIEWS IN AN EARLIER ESSAY, /74/  AND
HIS ARGUMENTS AT THE CONVENTION LEAVE NO DOUBT ABOUT HIS AGREEMENT WITH
HAMILTON ON THIS ISSUE. 

RESPONDENTS COUNTER THAT HAMILTON WAS ACTUALLY ADDRESSING HIMSELF TO
CRITICISM OF ART. I, SEC. 4, WHICH AUTHORIZES CONGRESS TO REGULATE THE
TIMES, PLACES, AND MANNER OF ELECTING MEMBERS OF CONGRESS.  THEY NOTE
THAT PROMINENT ANTIFEDERALISTS HAD ARGUED THAT THIS POWER COULD BE USED
TO "CONFER ON THE RICH AND WELL-BORN, ALL HONOURS."  BRUTUS NO. IV,
N.Y. JOURNAL, NOV.29, 1787, P. 7.  RESPONDENTS' CONTENTION, HOWEVER,
IGNORES HAMILTON'S EXPRESS RELIANCE ON THE IMMUTABILITY OF THE
QUALIFICATIONS SET FORTH IN THE CONSTITUTION.  /75/ 

THE DEBATES AT THE STATE CONVENTIONS ALSO DEMONSTRATE THE FRAMERS'
UNDERSTANDING THAT THE QUALIFICATIONS FOR MEMBERS OF CONGRESS HAD BEEN
FIXED IN THE CONSTITUTION.  BEFORE THE NEW YORK CONVENTION, FOR
EXAMPLE, HAMILTON EMPHASIZED:  "(THE TRUE PRINCIPLE OF A REPUBLIC IS,
THAT THE PEOPLE SHOULD CHOOSE WHOM THEY PLEASE TO GOVERN THEM. 
REPRESENTATION IS IMPERFECT IN PROPORTION AS THE CURRENT OF POPULAR
FAVOR IS CHECKED.  THIS GREAT SOURCE OF FREE GOVERNMENT, POPULAR
ELECTION, SHOULD BE PERFECTLY PURE, AND THE MOST UNBOUNDED LIBERTY
ALLOWED."  2 DEBATES ON THE FEDERAL CONSTITUTION 257 (J. ELLIOT ED.
1876) (HEREINAFTER CITED AS ELLIOT'S DEBATES).  /76/  IN VIRGINIA,
WHERE THE FEDERALISTS FACED POWERFUL OPPOSITION BY ADVOCATES OF POPULAR
DEMOCRACY, WILSON CAREY NICHOLAS, A FUTURE MEMBER OF BOTH THE HOUSE AND
SENATE AND LATER GOVERNOR OF THE STATE, MET THE ARGUMENTS THAT THE NEW
CONSTITUTION VIOLATED DEMOCRATIC PRINCIPLES WITH THE FOLLOWING
INTERPRETATION OF ART. I, SEC. 2, CL. 2, AS IT RESPECTS THE
QUALIFICATIONS OF THE ELECTED:  "IT HAS EVER BEEN CONSIDERED A GREAT
SECURITY TO LIBERTY, THAT VERY FEW SHOULD BE EXCLUDED FROM THE RIGHT OF
BEING CHOSEN TO THE LEGISLATURE.  THIS CONSTITUTION HAS AMPLY ATTENDED
TO THIS IDEA.  WE FIND NO QUALIFICATIONS REQUIRED EXCEPT THOSE OF AGE
AND RESIDENCE, WHICH CREATE A CERTAINTY OF THEIR JUDGMENT BEING
MATURED, AND OF BEING ATTACHED TO THEIR STATE."  3 ELLIOT'S DEBATES 8. 

        C. POST-RATIFICATION. 

AS CLEAR AS THESE STATEMENTS APPEAR, RESPONDENTS DISMISS THEM AS
"GENERAL STATEMENTS . . . DIRECTED TO OTHER ISSUES."  /77/  THEY
SUGGEST THAT FAR MORE RELEVANT IS CONGRESS' OWN UNDERSTANDING OF ITS
POWER TO JUDGE QUALIFICATIONS AS MANIFESTED IN POST-RATIFICATION
EXCLUSION CASES.  UNQUESTIONABLY, BOTH THE HOUSE AND THE SENATE HAVE
EXCLUDED MEMBERS-ELECT FOR REASONS OTHER THAN THEIR FAILURE TO MEET THE
CONSTITUTION'S STANDING QUALIFICATIONS.  FOR ALMOST THE FIRST 100 YEARS
OF ITS EXISTENCE, HOWEVER, CONGRESS STRICTLY LIMITED ITS POWER TO JUDGE
THE QUALIFICATIONS OF ITS MEMBERS TO THOSE ENUMERATED IN THE
CONSTITUTION. 

CONGRESS WAS FIRST CONFRONTED WITH THE ISSUE IN 1807, /78/  WHEN THE
ELIGIBILITY OF WILLIAM MCCREERY WAS CHALLENGED BECAUSE HE DID NOT MEET
ADDITIONAL RESIDENCY REQUIREMENTS IMPOSED BY THE STATE OF MARYLAND.  IN
RECOMMENDING THAT HE BE SEATED, THE HOUSE COMMITTEE OF ELECTIONS
REASONED: 

     "THE COMMITTEE PROCEEDED TO EXAMINE THE CONSTITUTION, WITH

  RELATION TO THE CASE SUBMITTED TO THEM, AND FIND THAT

  QUALIFICATIONS OF MEMBERS ARE THEREIN DETERMINED, WITHOUT

  RESERVING ANY AUTHORITY TO THE STATE LEGISLATURES TO CHANGE, ADD

  TO, OR DIMINISH THOSE QUALIFICATIONS; AND THAT, BY THAT

  INSTRUMENT, CONGRESS IS CONSTITUTED THE SOLE JUDGE OF THE

  QUALIFICATIONS PRESCRIBED BY IT, AND ARE OBLIGED TO DECIDE

  AGREEABLY TO THE CONSTITUTIONAL RULES . . . ."  17 ANALS OF CONG.

  871 (1807). 

LEST THERE BE ANY MISUNDERSTANDING OF THE BASIS FOR THE COMMITTEE'S
RECOMMENDATION, DURING THE ENSUING DEBATE THE CHAIRMAN EXPLAINED THE
PRINCIPLES BY WHICH THE COMMITTEE WAS GOVERNED: 

"THE COMMITTEE OF ELECTIONS CONSIDERED THE QUALIFICATIONS OF MEMBERS
TO HAVE BEEN UNALTERABLY DETERMINED BY THE FEDERAL CONVENTION, UNLESS
CHANGED BY AN AUTHORITY EQUAL TO THAT WHICH FRAMED THE CONSTITUTION AT
FIRST; THAT NEITHER THE STATE NOR THE FEDERAL LEGISLATURES ARE VESTED
WITH AUTHORITY TO ADD TO THOSE QUALIFICATIONS, SO AS TO CHANGE THEM . .
. . CONGRESS, BY THE FEDERAL CONSTITUTION, ARE NOT AUTHORIZED TO
PRESCRIBE THE QUALIFICATIONS OF THEIR OWN MEMBERS, BUT THEY ARE
AUTHORIZED TO JUDGE OF THEIR QUALIFICATIONS; IN DOING SO, HOWEVER, THEY
MUST BE GOVERNED BY THE RULES PRESCRIBED BY THE FEDERAL CONSTITUTION,
AND BY THEM ONLY.  THESE ARE THE PRINCIPLES ON WHICH THE ELECTION
COMMITTEE HAVE MADE UP THEIR REPORT, AND UPON WHICH THEIR RESOLUTION IS
FOUNDED."  ID., AT 872.  THE CHAIRMAN EMPHASIZED THAT THE COMMITTEE'S
NARROW CONSTRUCTION OF THE POWER OF THE HOUSE TO JUDGE QUALIFICATIONS
WAS COMPELLED BY THE "FUNDAMENTAL PRINCIPLE IN A FREE GOVERNMENT," ID.,
AT 873, THAT RESTRICTIONS UPON THE PEOPLE TO CHOOSE THEIR OWN
REPRESENTATIVES MUST BE LIMITED TO THOSE "ABSOLUTELY NECESSARY FOR THE
SAFETY OF THE SOCIETY."  ID., AT 874.  AT THE CONCLUSION OF A LENGTHY
DEBATE, WHICH TENDED TO CENTER ON THE MORE NARROW ISSUE OF THE POWER OF
THE STATES TO ADD TO THE STANDING QUALIFICATIONS SET FORTH IN THE
CONSTITUTION, THE HOUSE AGREED BY A VOTE OF 89 TO 18 TO SEAT
CONGRESSMAN MCCREERY.  ID., AT 1237.  SEE 1 A.HINDS,PRECEDENTS OF THE
HOUSE OF REPRESENTATIVES OF THE UNITED STATES 414 (1907) (HEREINAFTER
CITED AS HINDS). 

THERE WAS NO SIGNIFICANT CHALLENGE TO THESE PRINCIPLES FOR THE NEXT
SEVERAL DECADES.  /79/  THEY CAME UNDER HEAVY ATTACK, HOWEVER, "DURING
THE STRESS OF CIVIL WAR (BUT INITIALLY) THE HOUSE OF REPRESENTATIVES
DECLINED TO EXERCISE THE POWER (TO EXCLUDE), EVEN UNDER CIRCUMSTANCES
OF GREAT PROVOCATION."  /80/  RULES OF THE HOUSE OF REPRESENTATIVES,
H.R. DOC. NO. 529, 89TH CONG., 2D SESS., SEC. 12, P. 7 (1967).  THE
ABANDONMENT OF SUCH RESTRAINT, HOWEVER, WAS AMONG THE CASUALTIES OF THE
GENERAL UPHEAVAL PRODUCED IN WAR'S WAKE.  IN 1868, THE HOUSE VOTED FOR
THE FIRST TIME IN ITS HISTORY TO EXCLUDE A MEMBER-ELECT.  IT REFUSED TO
SEAT TWO DULY ELECTED REPRESENTATIVES FOR GIVING AID AND COMFORT TO THE
CONFEDERACY.  SEE 1 HINDS 449-451.  /81/  "THIS CHANGE WAS PRODUCED BY
THE NORTH'S BITTER ENMITY TOWARD THOSE WHO FAILED TO SUPPORT THE UNION
CAUSE DURING THE WAR, AND WAS EFFECTED BY THE RADICAL REPUBLICAN
DOMINATION OF CONGRESS.  IT WAS A SHIFT BROUGHT ABOUT BY THE NAKED
URGENCY OF POWER AND WAS GIVEN LITTLE DOCTRINAL SUPPORT."  COMMENT,
LEGISLATIVE EXCLUSION:  JULIAN BOND AND ADAM CLAYTON POWELL, 35
U.CHI.L.REV.  151, 157 (1967).  /82/  FROM THAT TIME UNTIL THE PRESENT,
CONGRESSIONAL PRACTICE HAS BEEN ERRATIC; /83/ AND ON THE FEW OCCASIONS
WHEN A MEMBER-ELECT WAS EXCLUDED ALTHOUGH HE MET ALL THE QUALIFICATIONS
SET FORTH IN THE CONSTITUTION, THERE WERE FREQUENTLY VIGOROUS
DISSENTS.  /84/  EVEN THE ANNOTATIONS TO THE OFFICIAL MANUAL OF
PROCEDURE FOR THE 90TH CONGRESS MANIFEST DOUBT AS TO THE HOUSE'S POWER
TO EXCLUDE A MEMBER-ELECT WHO HAS MET THE CONSTITUTIONALLY PRESCRIBED
QUALIFICATIONS.  SEE RULES OF THE HOUSE OF REPRESENTATIVES, H.R. DOC.
NO. 529, 89TH CONG., 2D SESS., SEC. 12, PP. 7-8 (1967). 

HAD THESE CONGRESSIONAL EXCLUSION PRECEDENTS BEEN MORE CONSISTENT,
THEIR PRECEDENTIAL VALUE STILL WOULD BE QUITE LIMITED.  SEE NOTE, THE
POWER OF A HOUSE OF CONGRESS TO JUDGE THE QUALIFICATIONS OF ITS
MEMBERS, 81 HARV.L.REV.  673, 679 (1968).  /85/  THAT AN
UNCONSTITUTIONAL ACTION HAS BEEN TAKEN BEFORE SURELY DOES NOT RENDER
THAT SAME ACTION ANY LESS UNCONSTITUTIONAL AT A LATER DATE. 
PARTICULARLY IN VIEW OF THE CONGRESS' OWN DOUBTS IN THOSE FEW CASES
WHERE IT DID EXCLUDE MEMBERS-ELECT, WE ARE NOT INCLINED TO GIVE ITS
PRECEDENTS CONTROLLING WEIGHT.  THE RELEVANCY OF PRIOR EXCLUSION CASES
IS LIMITED LARGELY TO THE INSIGHT THEY AFFORD IN CORRECTLY ASCERTAINING
THE DRAFTSMEN'S INTENT.  OBVIOUSLY, THEREFORE, THE PRECEDENTIAL VALUE
OF THESE CASES TENDS TO INCREASE IN PROPORTION TO THEIR PROXIMITY TO
THE CONVENTION IN 1787.  SEE MYERS V. UNITED STATES, 272 U.S. 52, 175
(1926).  AND, WHAT EVIDENCE WE HAVE OF CONGRESS' EARLY UNDERSTANDING
CONFIRMS OUR CONCLUSION THAT THE HOUSE IS WITHOUT POWER TO EXCLUDE ANY
MEMBER-ELECT WHO MEETS THE CONSTITUTION'S REQUIREMENTS FOR MEMBERSHIP. 

        D. CONCLUSION. 

HAD THE INTENT OF THE FRAMERS EMERGED FROM THESE MATERIALS WITH LESS
CLARITY, WE WOULD NEVERTHELESS HAVE BEEN COMPELLED TO RESOLVE ANY
AMBIGUITY IN FAVOR OF A NARROW CONSTRUCTION OF THE SCOPE OF CONGRESS'
POWER TO EXCLUDE MEMBERS-ELECT.  A FUNDAMENTAL PRINCIPLE OF OUR
REPRESENTATIVE DEMOCRACY IS, IN HAMILTON'S WORDS, "THAT THE PEOPLE
SHOULD CHOOSE WHOM THEY PLEASE TO GOVERN THEM."  2 ELLIOT'S DEBATES
257.  AS MADISON POINTED OUT AT THE CONVENTION THIS PRINCIPLE IS
UNDERMINED AS MUCH BY LIMITING WHOM THE PEOPLE CAN SELECT AS BY
LIMITING FRANCHISE ITSELF.  IN APPARENT AGREEMENT WITH THIS BASIC
PHILOSOPHY, THE CONVENTION ADOPTED HIS SUGGESTION LIMITING THE POWER TO
EXPEL.  TO ALLOW ESSENTIALLY THAT SAME POWER TO BE EXERCISED UNDER THE
GUISE OF JUDGING QUALIFICATIONS, WOULD BE TO IGNORE MADISON'S WARNING,
BORNE OUT IN THE WILKES CASE AND SOME OF CONGRESS' OWN POST-CIVIL WAR
EXCLUSION CASES, AGAINST "VESTING AN IMPROPER & DANGEROUS POWER IN THE
LEGISLATURE."  2 FARRAND 249.  MOREOVER, IT WOULD EFFECTIVELY NULLIFY
THE CONVENTION'S DECISION TO REQUIRE A TWO-THIRDS VOTE FOR EXPULSION. 
UNQUESTIONABLY, CONGRESS HAS AN INTEREST IN PRESERVING ITS
INSTITUTIONAL INTEGRITY, BUT IN MOST CASES THAT INTEREST CAN BE
SUFFICIENTLY SAFEGUARDED BY THE EXERCISE OF ITS POWER TO PUNISH ITS
MEMBERS FOR DISORDERLY BEHAVIOR AND, IN EXTREME CASES, TO EXPEL A
MEMBER WITH THE CONCURRENCE OF TWO-THIRDS.  IN SHORT, BOTH THE
INTENTION OF THE FRAMERS TO THE EXTENT IT CAN BE DETERMINED, AND AN
EXAMINATION OF THE BASIC PRINCIPLES OF OUR DEMOCRATIC SYSTEM PERSUADE
US THAT THE CONSTITUTION DOES NOT VEST IN THE CONGRESS A DISCRETIONARY
POWER TO DENY MEMBERSHIP BY A MAJORITY VOTE. 

FOR THESE REASONS, WE HAVE CONCLUDED THAT ART. I, SEC. 5, IS AT MOST
A "TEXTUALLY DEMONSTRABLE COMMITMENT" TO CONGRESS TO JUDGE ONLY THE
QUALIFICATIONS EXPRESSLY SET FORTH IN THE CONSTITUTION.  THEREFORE, THE
"TEXTUAL COMMITMENT" FORMULATION OF THE POLITICAL QUESTION DOCTRINE
DOES NOT BAR FEDERAL COURTS FROM ADJUDICATING PETITIONERS' CLAIMS. 

    2.  OTHER CONSIDERATIONS. 

RESPONDENTS' ALTERNATE CONTENTION IS THAT THE CASE PRESENTS A
POLITICAL QUESTION BECAUSE JUDICIAL RESOLUTION OF PETITIONERS' CLAIM
WOULD PRODUCE A "POTENTIALLY EMBARRASSING CONFRONTATION BETWEEN
COORDINATE BRANCHES" OF THE FEDERAL GOVERNMENT.  BUT, AS OUR
INTERPRETATION OF ART. I, SEC. 5, DISCLOSES, A DETERMINATION OF
PETITIONER POWELL'S RIGHT TO SIT WOULD REQUIRE NO MORE THAN AN
INTERPRETATION OF THE CONSTITUTION.  SUCH A DETERMINATION FALLS WITHIN
THE TRADITIONAL ROLE ACCORDED COURTS TO INTERPRET THE LAW, AND DOES NOT
INVOLVE A "LACK OF THE RESPECT DUE (A) COORDINATE (BRANCH) OF
GOVERNMENT," NOR DOES IT INVOLVE AN "INITIAL POLICY DETERMINATION OF A
KIND CLEARLY FOR NONJUDICIAL DISCRETION."  BAKER V. CARR, 369 U.S. 186,
AT 217.  OUR SYSTEM OF GOVERNMENT REQUIRES THAT FEDERAL COURTS ON
OCCASION INTERPRET THE CONSTITUTION IN A MANNER AT VARIANCE WITH THE
CONSTRUCTION GIVEN THE DOCUMENT BY ANOTHER BRANCH.  THE ALLEGED
CONFLICT THAT SUCH AN ADJUDICATION MAY CAUSE CANNOT JUSTIFY THE COURTS'
AVOIDING THEIR CONSTITUTIONAL RESPONSIBILITY.  /86/  SEE UNITED STATES
V. BROWN, 381 U.S. 437, 462 (1965); YOUNGSTOWN SHEET & TUBE CO. V.
SAWYER, 343 U.S. 579, 613-614 (1952) (FRANKFURTER, J., CONCURRING);
MYERS V. UNITED STATES, 272 U.S. 52, 293 (1926) (BRANDEIS, J.,
DISSENTING). 

NOR ARE ANY OF THE OTHER FORMULATIONS OF A POLITICAL QUESTION
"INEXTRICABLE FROM THE CASE AT BAR."  BAKER V. CARR, SUPRA, AT 217. 
PETITIONERS SEEK A DETERMINATION THAT THE HOUSE WAS WITHOUT POWER TO
EXCLUDE POWELL FROM THE 90TH CONGRESS, WHICH, WE HAVE SEEN, REQUIRES AN
INTERPRETATION OF THE CONSTITUTION-- A DETERMINATION FOR WHICH CLEARLY
THERE ARE "JUDICIALLY . . . MANAGEABLE STANDARDS."  FINALLY, A JUDICIAL
RESOLUTION OF PETITIONERS' CLAIM WILL NOT RESULT IN "MULTIFARIOUS
PRONOUNCEMENTS BY VARIOUS DEPARTMENTS ON ONE QUESTION."  FOR, AS WE
NOTED IN BAKER V. CARR, SUPRA, AT 211, IT IS THE RESPONSIBILITY OF THIS
COURT TO ACT AS THE ULTIMATE INTERPRETER OF THE CONSTITUTION.  MARBURY
V. MADISON, 1 CRANCH 137 (1803).  THUS, WE CONCLUDE THAT PETITIONERS'
CLAIM IS NOT BARRED BY THE POLITICAL QUESTION DOCTRINE, AND, HAVING
DETERMINED THAT THE CLAIM IS OTHERWISE GENERALLY JUSTICIABLE, WE HOLD
THAT THE CASE IS JUSTICIABLE. 

 VII. 

        CONCLUSION. 

TO SUMMARIZE, WE HAVE DETERMINED THE FOLLOWING:  (1) THIS CASE HAS
NOT BEEN MOOTED BY POWELL'S SEATING IN THE 91ST CONGRESS.  (2) ALTHOUGH
THIS ACTION SHOULD BE DISMISSED AGAINST RESPONDENT CONGRESSMEN IT MAY
BE SUSTAINED AGAINST THEIR AGENTS.  (3) THE 90TH CONGRESS' DENIAL OF
MEMBERSHIP TO POWELL CANNOT BE TREATED AS AN EXPULSION.  (4) WE HAVE
JURISDICTION OVER THE SUBJECT MATTER OF THIS CONTROVERSY.  (5) THE CASE
IS JUSTICIABLE. 

FURTHER, ANALYSIS OF THE "TEXTUAL COMMITMENT" UNDER ART. I, SEC. 5
(SEE PART VI, BA)), HAS DEMONSTRATED THAT IN JUDGING THE QUALIFICATIONS
OF ITS MEMBERS CONGRESS IS LIMITED TO THE STANDING QUALIFICATIONS
PRESCRIBED IN THE CONSTITUTION.  RESPONDENTS CONCEDE THAT POWELL MET
THESE.  THUS, THERE IS NO NEED TO REMAND THIS CASE TO DETERMINE WHETHER
HE WAS ENTITLED TO BE SEATED IN THE 90TH CONGRESS.  THEREFORE, WE HOLD
THAT, SINCE ADAM CLAYTON POWELL, JR., WAS DULY ELECTED BY THE VOTERS OF
THE 18TH CONGRESSIONAL DISTRICT OF NEW YORK AND WAS NOT INELIGIBLE TO
SERVE UNDER ANY PROVISION OF THE CONSTITUTION, THE HOUSE WAS WITHOUT
POWER TO EXCLUDE HIM FROM ITS MEMBERSHIP. 

PETITIONERS SEEK ADDITIONAL FORMS OF EQUITABLE RELIEF, INCLUDING
MANDAMUS FOR THE RELEASE OF PETITIONER POWELL'S BACK PAY.  THE
PROPRIETY OF SUCH REMEDIES, HOWEVER, IS MORE APPROPRIATELY CONSIDERED
IN THE FIRST INSTANCE BY THE COURTS BELOW.  THEREFORE, AS TO
RESPONDENTS MCCORMACK, ALBERT, FORD, CELLER, AND MOORE, THE JUDGMENT OF
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS AFFIRMED. 
AS TO RESPONDENTS JENNINGS, JOHNSON, AND MILLER, THE JUDGMENT OF THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS REVERSED AND
THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA WITH INSTRUCTIONS TO ENTER A DECLARATORY JUDGMENT
AND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  POWELL REQUESTED THAT HE BE GIVEN (1) NOTICE OF THE CHARGES
PENDING AGAINST HIM, INCLUDING A BILL OF PARTICULARS AS TO ANY ACCUSER;
(2) THE OPPORTUNITY TO CONFRONT ANY ACCUSER, TO ATTEND ALL COMMITTEE
SESSIONS WHERE EVIDENCE WAS GIVEN, AND THE RIGHT TO CROSS-EXAMINE ALL
WITNESSES; (3) PUBLIC HEARINGS; (4) THE RIGHT TO HAVE THE SELECT
COMMITTEE ISSUE ITS PROCESS TO SUMMON WITNESSES FOR HIS DEFENSE; (5)
AND A TRANSCRIPT OF EVERY HEARING.  HEARINGS ON H.R. RES. NO. 1 BEFORE
SELECT COMMITTEE PURSUANT TO H.R. RES. NO. 1, 90TH CONG., 1ST SESS., 54
(1967). 

THE SELECT COMMITTEE NOTED THAT IT HAD GIVEN POWELL NOTICE OF THE
MATTERS IT WOULD INQUIRE INTO, THAT POWELL HAD THE RIGHT TO ATTEND ALL
HEARINGS (WHICH WOULD BE PUBLIC) WITH HIS COUNSEL, AND THAT THE
COMMITTEE WOULD CALL WITNESSES UPON POWELL'S WRITTEN REQUEST AND SUPPLY
A TRANSCRIPT OF THE HEARINGS.  ID.,AT 59.     /2/  THE COMPLAINT ALSO
ATTACKED THE HOUSE RESOLUTION AS A BILL OF ATTAINDER, AN EX POST FACTO
LAW, AND AS CRUEL AND UNUSUAL PUNISHMENT.  FURTHER, PETITIONERS CHARGED
THAT THE HEARING PROCEDURES ADOPTED BY THE SELECT COMMITTEE VIOLATED
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

/3/  THE DISTRICT COURT REFUSED TO CONVENE A THREE-JUDGE COURT AND
THE COURT OF APPEALS AFFIRMED.  PETITIONERS DID NOT PRESS THIS ISSUE IN
THEIR PETITION FOR WRIT OF CERTIORARI, APPARENTLY RECOGNIZING THE
VALIDITY OF THE COURT OF APPEALS' RULING.  SEE STAMLER V. WILLIS, 393
U.S. 217 (1968). 

/4/  PETITIONERS ALSO REQUESTED THAT A WRIT OF MANDAMUS ISSUE
ORDERING THAT THE NAMED OFFICIALS PERFORM THE SAME ACTS. 

/5/  THE DISTRICT COURT ENTERED ITS ORDER APRIL 7, 1967, AND A
NOTICE OF APPEAL WAS FILED THE SAME DAY.  ON APRIL 11, 1967, POWELL WAS
RE-ELECTED TO THE HOUSE OF REPRESENTATIVES IN A SPECIAL ELECTION CALLED
TO FILL HIS SEAT.  THE FORMAL CERTIFICATION OF ELECTION WAS RECEIVED BY
THE HOUSE ON MAY 1, 1967, BUT POWELL DID NOT AGAIN PRESENT HIMSELF TO
THE HOUSE OR ASK TO BE GIVEN THE OATH OF OFFICE. 

/6/  RESPONDENTS' AUTHORITY FOR THIS ASSERTION IS A FOOTNOTE
CONTAINED IN GOJACK V. UNITED STATES, 384 U.S. 702, 707, N. 4.  (1966):
"NEITHER THE HOUSE OF REPRESENTATIVES NOR ITS COMMITTEES ARE
CONTINUING BODIES." 

/7/  THE RULE THAT THIS COURT LACKS JURISDICTION TO CONSIDER THE
MERITS OF A MOOT CASE IS A BRANCH OF THE CONSTITUTIONAL COMMAND THAT
THE JUDICIAL POWER EXTENDS ONLY TO CASES OR CONTROVERSIES.  SEE SIBRON
V. NEW YORK, 392 U.S. 40, 57 (1968); R. ROBERTSON & F. KIRKHAM,
JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES SECS. 270-271
(R. WOLFSON & P. KURLAND ED. 1951); DIAMOND, FEDERAL JURISDICTION TO
DECIDE MOOT CASES, 94 U.PA.L.REV.  125 (1946); NOTE, CASES MOOT ON
APPEAL:  A LIMIT ON THE JUDICIAL POWER, 103 U.PA.L.REV.  772 (1955). 

/8/  PETITIONERS DO NOT PRESS THEIR CLAIM THAT RESPONDENT MCCORMACK
SHOULD BE REQUIRED TO ADMINISTER THE OATH TO POWELL, APPARENTLY
CONCEDING THAT THE SEATING OF POWELL HAS RENDERED THIS SPECIFIC CLAIM
MOOT.  WHERE SEVERAL FORMS OF RELIEF ARE REQUESTED AND ONE OF THESE
REQUESTS SUBSEQUENTLY BECOMES MOOT THE COURT HAS STILL CONSIDERED THE
REMAINING REQUESTS.  SEE STANDARD FASHION CO. V. MAGRANE-HOUSTON CO.,
258 U.S. 346, 353 (1922).  RESPONDENTS ALSO ARGUE THAT THE SEATING OF
PETITIONER POWELL HAS MOOTED THE CLAIMS OF POWELL'S CONSTITUENTS. 
SINCE THIS CASE WILL BE REMANDED, THAT ISSUE AS WELL AS PETITIONERS'
OTHER CLAIMS CAN BE DISPOSED OF BY THE COURT BELOW. 

/9/  ALEJANDRINO'S BRIEF DID NOT CONSIDER EITHER THE POSSIBILITY
THAT HIS REQUEST FOR INJUNCTIVE RELIEF HAD BECOME MOOT OR WHETHER HIS
SALARY CLAIM REQUIRED THAT THE COURT TREAT THE PROPRIETY OF HIS
SUSPENSION.  NO BRIEF WAS FILED ON BEHALF OF RESPONDENTS. 

/10/  AFTER DISCUSSING THE INSUFFICIENCY OF ALEJANDRINO'S AVERMENTS
AS TO THE OFFICER RESPONSIBLE FOR HIS SALARY, THE COURT STATED:  "WERE
THAT SET OUT, THE REMEDY OF THE SENATOR WOULD SEEM TO BE BY MANDAMUS TO
COMPEL SUCH OFFICIAL IN THE DISCHARGE OF HIS MINISTERIAL DUTY TO PAY
HIM THE SALARY DUE . . . ."  271 U.S.,AT 534.  THAT THE INSUFFICIENCY
OF ALEJANDRINO'S AVERMENTS WAS THE REASON FOR DISMISSAL IS FURTHER
SUBSTANTIATED BY A LATER PASSAGE:  "AS WE ARE NOT ABLE TO DERIVE FROM
THE PETITION SUFFICIENT INFORMATION UPON WHICH PROPERLY TO AFFORD SUCH
A REMEDY (MANDAMUS), WE MUST TREAT THE WHOLE CAUSE AS MOOT AND ACT
ACCORDINGLY."  ID., AT 535. 

/11/  PARAGRAPH 18B OF PETITIONERS' COMPLAINT AVERS THAT "LEAKE W.
JOHNSON, AS SERGEANT-AT-ARMS OF THE HOUSE" IS RESPONSIBLE FOR AND
REFUSES TO PAY POWELL'S SALARY AND PRAYS FOR AN INJUNCTION RESTRAINING
THE SERGEANT AT ARMS FROM IMPLEMENTING THE HOUSE RESOLUTION DEPRIVING
POWELL OF HIS SALARY AS WELL AS MANDAMUS TO ORDER THAT THE SALARY BE
PAID. 

/12/  FEDERAL COURTS WERE FIRST EMPOWERED TO GRANT DECLARATORY
JUDGMENTS IN 1934, SEE 48 STAT. 955, 10 YEARS AFTER ALEJANDRINO FILED
HIS COMPLAINT. 

/13/  IT WAS EXPRESSLY STATED IN ALEJANDRINO THAT A PROPERLY PLEADED
MANDAMUS ACTION COULD BE BROUGHT, 271 U.S.,AT 535, IMPLIEDLY HOLDING
THAT ALEJANDRINO'S SALARY CLAIM HAD NOT BEEN MOOTED BY THE EXPIRATION
OF HIS SUSPENSION. 

/14/  RESPONDENTS DO NOT SUPPLY ANY SUBSTANTIATION FOR THEIR
ASSERTION THAT THE TERM OF THE GEORGIA LEGISLATURE DID NOT EXPIRE UNTIL
DECEMBER 31.  PRESUMABLE, THEY BASE THEIR STATEMENT UPON GA. CODE ANN.
SECS. 2-1601, 2-1603 (SUPP. 1968). 

/15/  RESPONDENTS ALSO SUGGEST THAT BOND IS NOT APPLICABLE BECAUSE
THE PARTIES IN BOND HAD STIPULATED THAT BOND WOULD BE ENTITLED TO BACK
SALARY IF HIS CONSTITUTIONAL CHALLENGES WERE ACCEPTED, WHILE THERE IS
NO STIPULATION IN THIS CASE.  HOWEVER, IF THE CLAIM IN BOND WAS MOOT, A
STIPULATION BY THE PARTIES COULD NOT CONFER JURISDICTION.  SEE, E.G.,
CALIFORNIA V. SAN PABLO & TULARE R. CO., 149 U.S. 308, 314 (1893). 

/16/  SINCE THE COURT BELOW DISPOSED OF THIS CASE ON GROUNDS OF
JUSTICIABILITY, IT DID NOT PASS UPON WHETHER POWELL HAD BROUGHT AN
APPROPRIATE ACTION TO RECOVER HIS SALARY.  WHERE A COURT OF APPEALS HAS
MISCONCEIVED THE APPLICABLE LAW AND THERE FORE FAILED TO PASS UPON A
QUESTION, OUR GENERAL PRACTICE HAS BEEN TO REMAND THE CASE TO THAT
COURT FOR CONSIDERATION OF THE REMAINING ISSUES.  SEE, E.G., UTAH PIE
CO. V. CONTINENTAL BAKING CO., 386 U.S. 685, 704 (1967); BANK OF
AMERICA NATIONAL TRUST & SAVINGS ASSN. V. PARNELL, 352 U.S. 29, 34
(1956).  WE BELIEVE THAT SUCH ACTION IS APPROPRIATE FOR RESOLUTION OF
WHETHER POWELL IN THIS LITIGATION IS ENTITLED TO MANDAMUS AGAINST THE
SERGEANT AT ARMS FOR SALARY WITHHELD PURSUANT TO THE HOUSE RESOLUTION. 

/17/  ARTICLE I, SEC. 6, PROVIDES:  "FOR ANY SPEECH OR DEBATE IN
EITHER HOUSE, THEY (SENATORS AND REPRESENTATIVES) SHALL NOT BE
QUESTIONED IN ANY OTHER PLACE." 

/18/  PETITIONERS ASK THE COURT TO DRAW A DISTINCTION BETWEEN
DECLARATORY RELIEF SOUGHT AGAINST MEMBERS OF CONGRESS AND EITHER AN
ACTION FOR DAMAGES OR A CRIMINAL PROSECUTION, EMPHASIZING THAT OUR FOUR
PREVIOUS CASES CONCERNED "CRIMINAL OR CIVIL SANCTIONS OF A DETERRENT
NATURE."  BRIEF FOR PETITIONERS 171. 

/19/  SEE 5 DEBATES ON THE FEDERAL CONSTITUTION 406 (J. ELLIOT ED.
1876); 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, P. 246 (M. FARRAND
REV. ED. 1966) (HEREINAFTER CITED AS FARRAND). 

/20/  THE ENGLISH BILL OF RIGHTS CONTAINED A PROVISION SUBSTANTIALLY
IDENTICAL TO ART. I, SEC. 6:  "THAT THE FREEDOM OF SPEECH, AND DEBATES
OR PROCEEDINGS IN PARLIAMENT, OUGHT NOT TO BE IMPEACHED OR QUESTIONED
IN ANY COURT OR PLACE OUT OF PARLIAMENT."  1 W. & M., SESS.2, C. 2. 
THE ENGLISH AND AMERICAN COLONIAL HISTORY IS TRACED IN SOME DETAIL IN
CELLA, THE DOCTRINE OF LEGISLATIVE PRIVILEGE OF FREEDOM OF SPEECH AND
DEBATE:  ITS PAST, PRESENT AND FUTURE AS A BAR TO CRIMINAL PROSECUTIONS
IN THE COURTS, 2 SUFFOLK U.L.REV.  1, 3-16 (1968), AND YANKWICH, THE
IMMUNITY OF CONGRESSIONAL SPEECH-- ITS ORIGIN, MEANING AND SCOPE, 99
U.PA.L.REV.  960, 961-966 (1951). 

/21/  UNITED STATES V. JOHNSON, 383 U.S. 169, 182-183 (1966). 

/22/  1 THE WORKS OF JAMES WILSON 421 (R. MCCLOSKEY ED. 1967). 

/23/  IN DOMBROWSKI $500,000 IN DAMAGES WAS SOUGHT AGAINST A SENATOR
AND THE CHIEF COUNSEL OF A SENATE SUBCOMMITTEE CHAIRED BY THAT
SENATOR.  RECORD IN NO. 118, O.T. 1966, PP. 10-11.  WE AFFIRMED THE
GRANT OF SUMMARY JUDGMENT AS TO THE SENATOR BUT REVERSED AS TO
SUBCOMMITTEE COUNSEL. 

/24/  THE COURT IN KILBOURN QUOTED EXTENSIVELY FROM STOCKDALE V.
HANSARD, 9 AD. & E. 1, 114, 112 ENG.REP.  1112, 1156 (Q.B. 1839), TO
REFUTE THE ASSERTION THAT HOUSE AGENTS WERE IMMUNE BECAUSE THEY WERE
EXECUTING ORDERS OF THE HOUSE:  "(IF THE SPEAKER, BY AUTHORITY OF THE
HOUSE, ORDER AN ILLEGAL ACT, THOUGH THAT AUTHORITY SHALL EXEMPT HIM
FROM QUESTION, HIS ORDER SHALL NO MORE JUSTIFY THE PERSON WHO EXEUCTED
IT THAN KING CHARLES'S WARRANT FOR LEVYING SHIP-MONEY COULD JUSTIFY HIS
REVENUE OFFICER."  KILBOURN EVENTUALLY RECOVERED $20,000 AGAINST
THOMPSON.  SEE KILBOURN V. THOMPSON, MACARTH.  & M. 401, 432 (SUP. CT.
D.C. 1883). 

/25/  A CONGRESSMAN IS NOT BY VIRTUE OF THE SPEECH OR DEBATE CLAUSE
ABSOLVED OF THE RESPONSIBILITY OF FILING A MOTION TO DISMISS AND THE
TRIAL COURT MUST STILL DETERMINE THE APPLICABILITY OF THE CLAUSE TO
PLAINTIFF'S ACTION.  SEE TENNEY V. BRANDHOVE, 341 U.S. 367, 377
(1951). 

/26/  GIVEN OUR DISPOSITION OF THIS ISSUE, WE NEED NOT DECIDE
WHETHER UNDER THE SPEECH OR DEBATE CLAUSE PETITIONERS WOULD BE ENTITLED
TO MAINTAIN THIS ACTION SOLELY AGAINST MEMBERS OF CONGRESS WHERE NO
AGENTS PARTICIPATED IN THE CHALLENGED ACTION AND NO OTHER REMEDY WAS
AVAILABLE.  CF. KILBOURN V. THOMPSON, 103 U.S. 168, 204-205 (1881). 

/27/  POWELL WAS "EXCLUDED" FROM THE 90TH CONGRESS, I.E., HE WAS NOT
ADMINISTERED THE OATH OF OFFICE AND WAS PREVENTED FROM TAKING HIS
SEAT.  IF HE HAD BEEN ALLOWED TO TAKE THE OATH AND SUBSEQUENTLY HAD
BEEN REQUIRED TO SURRENDER HIS SEAT, THE HOUSE'S ACTION WOULD HAVE
CONSTITUTED AN "EXPULSION."  SINCE WE CONCLUDE THAT POWELL WAS EXCLUDED
FROM THE 90TH CONGRESS, WE EXPRESS NO VIEW ON WHAT LIMITATIONS MAY
EXIST ON CONGRESS' POWER TO EXPEL OR OTHERWISE PUNISH A MEMBER ONCE HE
HAS BEEN SEATED. 

/28/  HOUSE RESOLUTION NO. 278, AS AMENDED AND ADOPTED, PROVIDED:
"THAT SAID ADAM CLAYTON POWELL . . . BE AND THE SAME HEREBY IS EXCLUDED
FROM MEMBERSHIP IN THE 90TH CONGRESS . . . ."  113 CONG.REC.  5020. 

/29/  OTHER CONGRESSES HAVE EXPRESSED AN IDENTICAL VIEW.  THE REPORT
OF THE JUDICIARY COMMITTEE CONCERNING THE PROPOSED EXPULSION OF WILLIAM
S. KING AND JOHN G. SCHUMAKER INFORMED THE HOUSE: 

"YOUR COMMITTEE ARE OF OPINION THAT THE HOUSE OF REPRESENTATIVES HAS
NO AUTHORITY TO TAKE JURISDICTION OF VIOLATIONS OF LAW OR OFFENSES
COMMITTED AGAINST A PREVIOUS CONGRESS.  THIS IS PURELY A LEGISLATIVE
BODY, AND ENTIRELY UNSUITED FOR THE TRIAL OF CRIMES.  THE FIFTH SECTION
OF THE FIRST ARTICLE OF THE CONSTITUTION AUTHORIZES 'EACH HOUSE TO
DETERMINE THE RULES OF ITS PROCEEDINGS, PUNISH ITS MEMBERS FOR
DISORDERLY BEHAVIOR, AND, WITH THE CONCURRENCE OF TWO-THIRDS, EXPEL A
MEMBER.'  THIS POWER IS EVIDENTLY GIVEN TO ENABLE EACH HOUSE TO
EXERCISE ITS CONSTITUTIONAL FUNCTION OF LEGISLATION UNOBSTRUCTED.  IT
CANNOT VEST IN CONGRESS A JURISDICTION TO TRY A MEMBER FOR AN OFFENSE
COMMITTED BEFORE HIS ELECTION; FOR SUCH OFFENSE A MEMBER, LIKE ANY
OTHER CITIZEN, IS AMENABLE TO THE COURTS ALONE."  H.R. REP. NO. 815,
44TH CONG., 1ST SESS., 2 (1876).  SEE ALSO 15 CONG.REC.  4434 (1884)
(RULING OF THE SPEAKER); H.R. REP. NO. 81, 42D CONG., 3D SESS., 8
(1873) (EXPULSION OF JAMES BROOKS AND OAKES AMES); H.R. REP. NO. 179,
35TH CONG., 1ST SESS., 4-5 (1858) (EXPULSION OF ORSAMUS B. MATTESON). 

/30/  WE EXPRESS NO VIEW AS TO WHETHER SUCH A RULING WOULD HAVE BEEN
PROPER.  A FURTHER DISTINCTION BETWEEN EXPULSION AND EXCLUSION INHERES
IN THE FACT THAT A MEMBER WHOSE EXPULSION IS CONTEMPLATED MAY AS A
MATTER OF RIGHT ADDRESS THE HOUSE AND PARTICIPATE FULLY IN DEBATE WHILE
A MEMBER-ELECT APPARENTLY DOES NOT HAVE A SIMILAR RIGHT.  IN PRIOR
CASES THE MEMBER WHOSE EXPULSION WAS UNDER DEBATE HAS BEEN ALLOWED TO
MAKE A LONG AND OFTEN IMPASSIONED DEFENSE.  SEE CONG. GLOBE, 42D CONG.,
3D SESS., 1723 (1873) (EXPULSION OF OAKES AMES); CONG. GLOBE, 41ST
CONG., 2D SESS., 1524-1525, 1544 (1870) (EXPULSION OF B. R.
WHITTEMORE); CONG. GLOBE, 34TH CONG., 3D SESS., 925-926 (1857)
(EXPULSION OF WILLIAM A. GILBERT); CONG. GLOBE, 34TH CONG., 3D SESS.
947-951 (1857) (EXPULSION OF WILLIAM W. WELCH); 9 ANNALS OF CONG. 2966
(1799) (EXPULSION OF MATTHEW LYON).  ON AT LEAST ONE OCCASION THE
MEMBER HAS BEEN ALLOWED TO CROSS-EXAMINE OTHER MEMBERS DURING THE
EXPULSION DEBATE.  2 A.HINDS,PRECEDENTS OF THE HOUSE OF REPRESENTATIVES
1643 (1907). 

/31/  A MOTION FOR THE PREVIOUS QUESTION IS A DEBATE-LIMITING DEVICE
WHICH, WHEN CARRIED, HAS THE EFFECT OF TERMINATING DEBATE AND OF
FORCING A VOTE ON THE SUBJECT AT HAND.  SEE RULES OF THE HOUSE OF
REPRESENTATIVES, H.R. DOC. NO. 529, 89TH CONG., 2D SESS., SECS. 804-809
(1967); CANNON'S PROCEDURE IN THE HOUSE OF REPRESENTATIVES, H.R. DOC.
NO. 610, 87TH CONG., 2D SESS., 277-281 (1963). 

/32/  ECKHARDT, THE ADAM CLAYTON POWELL CASE, 45 TEXAS L.REV.  1205,
1209 (1967).  THE VIEWS OF CONGRESSMAN ECKHARDT WERE ECHOES DURING THE
EXCLUSION PROCEEDINGS.  CONGRESSMAN CLEVELAND STATED THAT, ALTHOUGH HE
VOTED IN FAVOR OF AND SUPPORTED THE SELECT COMMITTEE'S RECOMMENDATION,
IF THE EXCLUSION AMENDMENT RECEIVED A FAVORABLE VOTE ON THE MOTION FOR
THE PREVIOUS QUESTION, THEN HE WOULD SUPPORT THE AMENDMENT "ON FINAL
PASSAGE."  113 CONG.REC.  5031.  CONGRESSMAN GUBSER WAS EVEN MORE
EXPLICIT: 

"I SHALL VOTE AGAINST THE PREVIOUS QUESTION ON THE CURTIS AMENDMENT
SIMPLY BECAUSE I BELIEVE FUTURE AND PERFECTING AMENDMENTS SHOULD BE
ALLOWED.  BUT IF THE PREVIOUS QUESTION IS ORDERED, THEN I WILL BE
PLACED ON THE HORNS OF AN IMPOSSIBLE DILEMMA. 

"MR. SPEAKER, I WANT TO EXPEL ADAM CLAYTON POWELL, BY SEATING HIM
FIRST, BUT THAT WILL NOT BE MY CHOICE WHEN THE CURTIS AMENDMENT IS
BEFORE US.  I WILL BE FORCED TO VOTE FOR EXCLUSION, ABOUT WHICH I HAVE
GREAT CONSTITUTIONAL DOUBTS, OR TO VOTE FOR NO PUNISHMENT AT ALL. 
GIVEN THIS RAW AND ISOLATED ISSUE, THE ONLY ALTERNATIVE I CAN FOLLOW IS
TO VOTE FOR THE CURTIS AMENDMENT.  I SHALL DO SO, MR. SPEAKER, WITH
GREAT RESERVATION."  IBID. 

/33/  ALTHOUGH EACH JUDGE OF THE PANEL WROTE A SEPARATE OPINION, ALL
WERE CLEAR IN STATING THAT THE DISTRICT COURT POSSESSED SUBJECT MATTER
JURISDICTION.  POWELL V. MCCORMACK, 129 U.S.APP.D.C. 354, 368, 384385
395 F.2D 577, 591, 607, 608 (1968).     /34/  WE HAVE DETERMINED THAT
THE CASE IS NOT MOOT.  SEE PART II, SUPRA. 

/35/  INDEED, THE THRUST OF RESPONDENTS' ARGUMENT ON THIS
JURISDICTIONAL ISSUE IS SIMILAR TO THEIR CONTENTIONS THAT THIS CASE
PRESENTS A NONJUSTICIABLE "POLITICAL QUESTION."  THEY URGE THAT IT
WOULD HAVE BEEN "UNTHINKABLE" TO THE FRAMERS OF THE CONSTITUTION FOR
THE COURTS TO REVIEW THE DECISION OF A LEGISLATURE TO EXCLUDE A
MEMBER.  HOWEVER, WE HAVE PREVIOUSLY DETERMINED THAT A CLAIM ALLEGING
THAT A LEGISLATURE HAS ABRIDGED AN INDIVIDUAL'S CONSTITUTIONAL RIGHTS
BY REFUSING TO SEAT AN ELECTED REPRESENTATIVE CONSTITUTES A "CASE OR
CONTROVERSY" OVER WHICH FEDERAL COURTS HAVE JURISDICTION.  SEE BOND V.
FLOYD, 385 U.S. 116, 131 (1966).  TO THE EXTENT THE EXPECTATIONS OF THE
FRAMERS ARE DISCERNIBLE AND RELEVANT TO THIS CASE, THEY MUST THEREFORE
RELATE TO THE SPECIAL PROBLEM OF REVIEW BY FEDERAL COURTS OF ACTIONS OF
THE FEDERAL LEGISLATURE.  THIS IS OF COURSE A PROBLEM OF SEPARATION OF
POWERS AND IS TO BE CONSIDERED IN DETERMINING JUSTICIABILITY.  SEE
BAKER V. CARR, 369 U.S. 186, 210 (1962). 

/36/  BRIEF FOR RESPONDENTS 39. 

/37/  PETITIONERS' COMPLAINT IS PREDICATED, INTER ALIA, ON SEVERAL
CONSTITUTION.  RESPONDENTS DO NOT CHALLENGE THE SUBSTANTIALITY OF THESE
CLAIMS. 

/38/  ACT OF MAY 31, 1870, SEC. 23, 16 STAT. 146.  THE STATUTE IS
NOW 28 U.S.C. 1344. 

/39/  SEE CONG. GLOBE, 41ST CONG., 2D SESS., 3872 (1870). 

/40/  RESPONDENTS RELY ON BARRY V. UNITED STATES EX REL. CUNNINGHAM,
279 U.S. 597 (1929).  BARRY INVOLVED THE POWER OF THE SENATE TO ISSUE
AN ARREST WARRANT TO SUMMON A WITNESS TO GIVE TESTIMONY CONCERNING A
SENATORIAL ELECTION.  THE COURT RULED THAT ISSUANCE OF THE WARRANT WAS
CONSTITUTIONAL, RELYING ON THE POWER OF THE SENATE UNDER ART. I, SEC.
5, TO BE THE JUDGE OF THE ELECTIONS OF ITS MEMBERS.  RESPONDENTS
PARTICULARLY RELY ON LANGUAGE THE COURT USED IN DISCUSSING THE POWER
CONFERRED BY ART. I, SEC. 5.  THE COURT NOTED THAT UNDER SED.  5 THE
SENATE COULD "RENDER A JUDGMENT WHICH IS BEYOND THE AUTHORITY OF ANY
OTHER TRIBUNAL TO REVIEW."  ID., AT 613. 

BARRY PROVIDES NO SUPPORT FOR RESPONDENTS' ARGUMENT THAT THIS CASE
IS NOT JUSTICIABLE, HOWEVER.  FIRST, IN BARRY THE COURT REACHED THE
MERITS OF THE CONTROVERSY, THUS INDICATING THAT ACTIONS ALLEGEDLY TAKEN
PURSUANT TO ART. I, SEC. 5, ARE NOT AUTOMATICALLY IMMUNE FROM JUDICIAL
REVIEW.  SECOND, THE QUOTED STATEMENT IS DICTUM; AND, LATER IN THE SAME
OPINION, THE COURT NOTED THAT THE SENATE MAY EXERCISE ITS POWER SUBJECT
"TO THE RESTRAINTS IMPOSED BY OR FOUND IN THE IMPLICATIONS OF THE
CONSTITUTION."  ID., AT 614.  THIRD, OF COURSE, THE STATEMENT IN BARRY
LEAVES OPEN THE PARTICULAR QUESTION THAT MUST FIRST BE RESOLVED IN THIS
CASE:  THE EXISTENCE AND SCOPE OF THE TEXTUAL COMMITMENT TO THE HOUSE
TO JUDGE THE QUALIFICATIONS OF MEMBERS. 

/41/  IN ADDITION TO THE THREE QUALIFICATIONS SET FORTH IN ART. I,
SEC. 2, ART. I, SEC. 3, CL. 7, AUTHORIZES THE DISQUALIFICATION OF ANY
PERSON CONVICTED IN AN IMPEACHMENT PROCEEDING FROM "ANY OFFICE OF
HONOR, TRUST OR PROFIT UNDER THE UNITED STATES"; ART. I, SEC. 6, CL. 2,
PROVIDES THAT "NO PERSON HOLDING ANY OFFICE UNDER THE UNITED STATES,
SHALL BE A MEMBER OF EITHER HOUSE DURING HIS CONTINUANCE IN OFFICE";
AND SEC. 3 OF THE 14TH AMENDMENT DISQUALIFIES ANY PERSON "WHO, HAVING
PREVIOUSLY TAKEN AN OATH . . . TO SUPPORT THE CONSTITUTION OF THE
UNITED STATES, SHALL HAVE ENGAGED IN INSURRECTION OR REBELLION AGAINST
THE SAME, OR GIVEN AID OR COMFORT TO THE ENEMIES THEREOF."  IT HAS BEEN
ARGUED THAT EACH OF THESE PROVISIONS, AS WELL AS THE GUARANTEE CLAUSE
OF ARTICLE IV AND THE OATH REQUIREMENT OF ART. VI, CL. 3, IS NO LESS A
"QUALIFICATION" WITHIN THE MEANING OF ART. I, SEC. 5, THAN THOSE SET
FORTH IN ART. I, SEC. 2.  DIONISOPOULOS, A COMMENTARY ON THE
CONSTITUTIONAL ISSUES IN THE POWELL AND RELATED CASES, 17 J.PUB.L. 103,
111-115 (1968).  WE NEED NOT REACH THIS QUESTION, HOWEVER, SINCE BOTH
SIDES AGREE THAT POWELL WAS NOT INELIGIBLE UNDER ANY OF THESE
PROVISIONS. 

/42/  CONSISTENT WITH THIS INTERPRETATION, FEDERAL COURTS MIGHT
STILL BE BARRED BY THE POLITICAL QUESTION DOCTRINE FROM REVIEWING THE
HOUSE'S FACTUAL DETERMINATION THAT A MEMBER DID NOT MEET ONE OF THE
STANDING QUALIFICATIONS.  THIS IS AN ISSUE NOT PRESENTED IN THIS CASE
AND WE EXPRESS NO VIEW AS TO ITS RESOLUTION. 

/43/  INDEED, THE FORCE OF RESPONDENTS' OTHER ARGUMENTS THAT THIS
CASE PRESENTS A POLITICAL QUESTION DEPENDS IN GREAT MEASURE ON THE
RESOLUTION OF THE TEXTUAL COMMITMENT QUESTION.  SEE PART VI, B(2),
INFRA. 

/44/  SINCE ART. I, SEC. 5, CL. 1, APPLIES TO BOTH HOUSES OF
CONGRESS, THE SCOPE OF THE SENATE'S POWER TO JUDGE THE QUALIFICATIONS
OF ITS MEMBERS NECESSARILY IS IDENTICAL TO THE SCOPE OF THE HOUSE'S
POWER, WITH THE EXCEPTION OF COURSE, THAT ART. I, SEC. 3, CL. 3,
ESTABLISHES DIFFERENT AGE AND CITIZENSHIP REQUIREMENTS FOR MEMBERSHIP
IN THE SENATE. 

/45/  SINCE THE REIGN OF HENRY IV (1399-1413), NO CLERGYMAN HAD SAT
IN THE HOUSE OF COMMONS.  1 E.PORRITT,THE UNREFORMED HOUSE OF COMMONS
125 (1963). 

/46/  BECAUSE THE BRITISH DO NOT HAVE A WRITTEN CONSTITUTION,
STANDING INCAPACITIES OR DISQUALIFICATIONS FOR MEMBERSHIP IN PARLIAMENT
ARE DERIVED FROM "THE CUSTOM AND LAW OF PARLIAMENT."  1 W.BLACKSTONE'S
COMMENTARIES *162; SEE ID., AT *175.  THE GROUPS THUS DISQUALIFIED AS
OF 1770 INCLUDED ALIENS; MINORS; JUDGES WHO SAT IN THE HOUSE OF LORDS;
CLERGY WHO WERE REPRESENTED IN THEIR OWN CONVOCATION; PERSONS
"ATTAINTED OF TREASON OR FELONY"; SHERIFFS, MAYORS, AND BAILIFFS AS
REPRESENTATIVES FOR THEIR OWN JURISDICTIONS; AND CERTAIN TAXING
OFFICIALS AND OFFICERS OF THE CROWN.  ID., AT *175-176.  NOT UNTIL THE
EXCLUSION OF JOHN WILKES, DISCUSSED INFRA, DID BLACKSTONE SUBSCRIBE TO
THE THEORY THAT, IN ADDITION, THE COMMONS COULD DECLARE INELIGIBLE AN
INDIVIDUAL "IN PARTICULAR (UNSPECIFIED) CIRCUMSTANCES . . . FOR THAT
PARLIAMENT" IF IT DEEMED HIM UNFIT TO SERVE ON GROUNDS NOT ENCOMPASSED
BY THE RECOGNIZED STANDING INCAPACITIES.  AS WE EXPLAIN, INFRA, THIS
POSITION WAS SUBSEQUENTLY REPUDIATED BY THE HOUSE IN 1782.  A CLERK OF
THE HOUSE OF COMMONS LATER REFERRED TO CASES IN WHICH THIS THEORY WAS
RELIED UPON "AS EXAMPLES OF AN EXCESS OF . . . JURISDICTION BY THE
COMMONS; FOR ONE HOUSE OF PARLIAMENT CANNOT CREATE A DISABILITY UNKNOWN
TO THE LAW."  T. MAY'S PARLIAMENTARY PRACTICE 67 (13TH ED.T.WEBSTER
1924). 

/47/  IN 1619, THE VIRGINIA HOUSE OF BURGESSES CHALLENGED THE
ELIGIBILITY OF CERTAIN DELEGATES ON THE GROUND THAT THEY DID NOT HOLD
THEIR PLANTATIONS UNDER PROPER PATENTS FROM THE VIRGINIA COMPANY IN
ENGLAND.  SEE GENERALLY 7 THE FEDERAL AND STATE CONSTITUTIONS,COLONIAL
CHARTERS,AND OTHER ORGANIC LAWS 3783-3810 (F. THORPE ED. 1909)
(HEREINAFTER CITED AS THORPE).  ONE OF THEM, A CAPTAIN WARDE, WAS
ADMITTED ON CONDITION THAT HE OBTAIN THE NECESSARY PATENT.  THE OTHERS,
REPRESENTIVES FROM MARTIN'S BRANDON PLANTATION, WERE EXCLUDED ON THE
GROUND THAT THE OWNER OF THE PLANTATION HAD CLAIMED THAT HIS PATENT
EXEMPTED HIM FROM THE COLONY'S LAWS.  SEE JOURNALS OF THE HOUSE OF
BURGESSES OF VIRGINIA:  1619-1658/59, PP. 4-5 (1915); M. CLARKE,
PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES 133-134 (1943).  THE
QUESTIONS PRESENTED BY THESE TWO CASES, THEREFORE, SEEM TO BE
JURISDICTIONAL IN NATURE; THAT IS, AN ATTEMPT WAS MADE TO GAIN
REPRESENTATION FOR PLANTATIONS OVER WHICH THE ASSEMBLY MAY HAVE HAD NO
POWER TO ACT.  THUS VIEWED THESE CASES ARE ANALOGOUS TO THE EXCLUSIONS
FOR FAILURE TO COMPLY WITH STANDING QUALIFICATIONS.  THEY CERTAINLY ARE
NOT PRECEDENTS WHICH SUPPORT THE VIEW THAT A LEGISLATIVE BODY COULD
EXCLUDE MEMBERS FOR MERE CHARACTER DEFECTS OR PRIOR MISCONDUCT
DISAPPROVED BY THE ASSEMBLY.  SEE GENERALLY CLARKE, SUPRA, AT 132-204;
J. GREENE, THE QUEST FOR POWER:  THE LOWER HOUSES OF ASSEMBLY IN THE
SOUTHERN ROYAL COLONIES:  1689-1776, PP. 171-204 (1963). 

/48/  FOR EXAMPLE, IN 1585 THE COMMONS EXPELLED A DOCTOR PARRY FOR
UNSPECIFIED MISBEHAVIOR.  A COMPLEAT JOURNAL OF THE VOTES, SPEECHES AND
DEBATES OF THE HOUSE OF LORDS AND HOUSE OF COMMONS THROUGHOUT THE WHOLE
REIGN OF QUEEN ELIZABETH, OF GLORIOUS MEMORY 352 (S. D'EWES ED. 1708);
AND IN 1628 SIR EDMUND SAWYER WAS EXPELLED BECAUSE HE HAD SOUGHT TO
INDUCE A WITNESS TO SUPPRESS EVIDENCE AGAINST SIR EDMUND IN TESTIMONY
BEFORE THE HOUSE.  1 H.C.JOUR.  917. 

/49/  IN EXPELLING SIR EDMUND SAWYER IN 1628, THE COMMONS DECLARED
"HIM TO BE UNWORTHY EVER TO SERVE AS A MEMBER OF THIS HOUSE."  IBID.
ALMOST IDENTICAL LANGUAGE WAS USED IN THE EXPULSION OF H. BENSON IN
1641.  2 ID.,AT 301.  BUT BY 1642, THE FORMULA HAD BEEN CHANGED TO
"DISABLED TO SERVE ANY LONGER IN THIS PARLIAMENT AS A MEMBER OF THIS
HOUSE . . . ."  ID., AT 703.  BY THE 18TH CENTURY IT WAS APPARENTLY
WELL ESTABLISHED THAT AN EXPULSION BY THE HOUSE OF COMMONS COULD LAST
NO LONGER THAN THE DURATION OF THE PARLIAMENT FROM WHICH THE MEMBER WAS
EXPELLED.  SE 1 W.BLACKSTONE'S COMMENTARIES *176. 

/50/  FOR EXAMPLE, IN 1652, THE VIRGINIA HOUSE OF BURGESSES EXPELLED
TWO MEMBERS FOR PRIOR CONDUCT DISAPPROVED BY THE ASSEMBLY, JOURNALS OF
THE HOUSE OF BURGESSES, SUPRA, AT 85; AND IN 1683, RHODE ISLAND
EXPELLED A MEMBER "FROM ACTING IN THIS PRESENT ASSEMBLY" FOR REFUSING
TO ANSWER A COURT SUMMONS.  1 S.ARNOLD,HISTORY OF THE STATE OF RHODE
ISLAND AND PROVIDENCE PLANTATIONS 289 (1859).  SEE GENERALLY CLARKE,
SUPRA, AT 173-204. 

/51/  IN 1726, THE MASSACHUSETTS HOUSE OF REPRESENTATIVES EXCLUDED
GERSHOM WOODLE, WHO HAD BEEN EXPELLED ON THREE PREVIOUS OCCASIONS AS
"UNWORTHY TO BE A MEMBER."  7 JOURNALS OF THE HOUSE OF REPRESENTATIVES
OF MASSACHUSETTS 1726-1727, PP. 4-5, 15, 68-69 (1926).  IN 1758, NORTH
CAROLINA EXPELLED FRANCIS BROWN FOR PERJURY.  HE WAS RE-ELECTED TWICE
IN 1760 AND EXCLUDED ON BOTH OCCASIONS; HOWEVER, WHEN HE WAS ELECTED AT
THE 1761 GENERAL ELECTIONS, HE WAS ALLOWED TO TAKE HIS SEAT.  5
COLONIAL RECORDS OF NORTH CAROLINA 1057-1058 (1887); 6 ID.,AT 375, 474,
662-663, 672-673 (1888).  THERE MAY HAVE BEEN SIMILAR EXCLUSIONS OF TWO
MEN ELECTED IN 1710 TO THE NEW JERSEY ASSEMBLY.  SEE CLARKE, SUPRA, AT
197-198. 

/52/  SIGNIFICANTLY, THE OCCASIONAL ASSUMPTION OF THIS BROADER
EXPULSION POWER DID NOT GO UNCHALLENGED, CLARK, SUPRA, AT 196-202; AND
IT WAS NOT SUPPORTED BY THE ONLY PARLIAMENTARY PRECEDENT, THE WALPOLE
CASE. 

/53/  PURSUANT TO A GENERAL WARRANT, WILKES WAS ARRESTED, HIS HOME
RANSACKED, AND HIS PRIVATE PAPERS SEIZED.  IN HIS LATER ELECTION
CAMPAIGNS, WILKES DENOUNCED THE USE OF GENERAL WARRANTS, ASSERTING THAT
HE WAS FIGHTING FOR LIBERTY ITSELF.  SEE 11 L.GIPSON,THE BRITISH EMPIRE
BEFORE THE AMERICAN REVOLUTION 213-214 (1965). 

/54/  THE ISSUE BEFORE THE COMMONS WAS CLEAR:  COULD THE COMMONS
"PUT IN ANY DISQUALIFICATION, THAT IS NOT PUT IN BY THE LAW OF THE
LAND."  1 H.CAVENDISH'S DEBATES 384 (J. WRIGHT ED. 1841).  THE
AFFIRMATIVE ANSWER WAS SOMEWHAT LESS THAN RESOUNDING.  AFTER WILKES'
THIRD RE-ELECTION, THE MOTION TO SEAT HIS OPPONENT CARRIED 197 TO 143. 

/55/  THE VALIDITY OF THE HOUSE'S ACTION AGAINST WILKES RESTED TO A
LARGE EXTENT ON THE VALIDITY OF THE WALPOLE PRECEDENT.  TASWELL
LANGMEAD, SUPRA, AT 585.  THUS, THE HOUSE OF COMMONS RESOLUTION
EXPUNGING, AS SUBVERSIVE TO THE RIGHTS OF THE WHOLE ELECTORATE, THE
ACTION TAKEN AGAINST WILKES WAS ALSO A TACIT REPUDICATION OF THE
SIMILAR ACTION TAKEN AGAINST WALPOLE IN 1712. 

/56/  ENGLISH LAW IS APPARENTLY THE SAME TODAY.  SEE T. MAY'S
PARLIAMENTARY PRACTICE 105-108 (17TH ED. B. COCKS 1964). 

/57/  THE COUNCIL OF CENSORS WAS ESTABLISHED BY THE 1776
PENNSYLVANIA CONSTITUTION.  IT WAS AN ELECTED BODY THAT WAS
SPECIFICALLY CHARGED WITH THE DUTY "TO ENQUIRE WHETHER THE CONSTITUTION
HAS BEEN PRESERVED INVIOLATE IN EVERY PART; AND WHETHER THE LEGISLATIVE
AND EXECUTIVE BRANCHES OF GOVERNMENT HAVE PERFORMED THEIR DUTY AS
GUARDIANS OF THE PEOPLE, OR ASSUMED TO THEMSELVES, OR EXERCISED OTHER
OR GREATER POWERS THAN THEY ARE INTITLED TO BY THE CONSTITUTION."  PA.
CONST. OF 1776, SEC. 47, 5 THORPE 3091.  SEE PENNSYLVANIA CONVENTION
PROCEEDINGS:  1776 AND 1790, INTRODUCTION, P. IV (1825). 

/58/  IN DISCUSSING THE CASE, RESPONDENTS CHARACTERIZE THE EARLIER
ACTION AS AN EXCLUSION.  THE COUNCIL OF CENSORS, HOWEVER, STATED THAT
THE GENERAL ASSEMBLY HAD RESOLVED THAT THE MEMBER "IS EXPELLED FROM HIS
SEAT."  PENNSYLVANIA CONVENTION PROCEEDINGS, SUPRA, AT 89.  THE ACCOUNT
OF THE DISSENTING COMMITTEE MEMBERS SUGGESTS THAT THE TERM EXPULSION
WAS PROPERLY USED.  THEY NOTE THAT IN FEBRUARY 1783 THE ASSEMBLY
RECEIVED A LETTER FROM THE COMPTROLLER GENERAL CHARGING THE ASSEMBLYMAN
WITH FRAUD.  NOT UNTIL SEPTEMBER 9, 1783, DID THE ASSEMBLY VOTE TO
EXPEL HIM.  PRESUMABLY, HE HELD HIS SEAT UNTIL THAT TIME.  BUT, EVEN IF
HE HAD BEEN EXCLUDED, ARGUABLY HE WAS EXCLUDED FOR NOT MEETING A
STANDING INCAPACITY, SINCE THE PENNSYLVANIA CONSTITUTION OF 1776
REQUIRED ASSEMBLYMEN TO BE "MOST NOTED FOR WISDOM AND VIRTUE."  PA.
CONST. OF 1776, SEC. 7, 5 THORPE 3084.  IN FACT, THE DISSENTING MEMBERS
OF THE COMMITTEE ARGUED THAT THE EXPELLED MEMBER WAS INELIGIBLE UNDER
THIS VERY PROVISION.  PENNSYLVANIA CONVENTION PROCEEDINGS, SUPRA, AT
89. 

RESPONDENTS CITE ONE OTHER EXCLUSION DURING THE PERIOD BETWEEN THE
DECLARATION OF INDEPENDENCE AND THE CONSTITUTIONAL CONVENTION 11 YEARS
LATER.  IN 1780 THE VIRGINIA ASSEMBLY EXCLUDED JOHN BRECKENRIDGE
BECAUSE HE WAS A MINOR.  MINORITY, OF COURSE, WAS A TRADITIONAL
STANDING INCAPACITY, AND CHARLES WARREN THEREFORE APPEARS TO HAVE BEEN
CORRECT IN CONCLUDING THAT THIS EXCLUSION WAS PROBABLY BASED UPON AN
INTERPRETATION OF THE STATE CONSTITUTIONAL REQUIREMENT THAT MEMBERS
MUST BE DULY QUALIFIED ACCORDING TO LAW.  VA. CONST., 7 THORPE 3816. 
SEE C. WARREN, THE MAKING OF THE CONSTITUTION 423, N. 1 (1928). 
RESPONDENTS, BASED UPON THEIR MISINTERPRETATION OF THE PENNSYLVANIA
CASE JUST DISCUSSED, CRITICIZE CHARLES WARREN FOR CONCLUDING THAT THERE
HAD BEEN ONLY ONE EXCLUSION DURING THIS PERIOD.  OUR RESEARCH, HOWEVER,
HAS DISCLOSED NO OTHER CASES.     /59/  WILKES HAD ESTABLISHED A
REPUTATION BOTH IN ENGLAND AND THE COLONIES AS A CHAMPION OF FREE
ELECTIONS, FREEDOM FROM ARBITRARY ARREST AND SEIZURE, AND FREEDOM OF
THE PRESS.  SEE 11 GIPSON, SUPRA, AT 191-222. 

/60/  SEE R. POSTGATE, THAT DEVIL WILKES 171-172, 173-174 (1929). 
DURING THE HOUSE OF COMMONS DEBATES IN 1781, A MEMBER REMARKED THAT
EXPELLING WILKES HAD BEEN "ONE OF THE GREAT CAUSES WHICH HAD SEPARATED
. . . (ENGLAND) FROM AMERICA."  22 PARL.HIST.ENG.  100-101 (1781). 
THE WRITINGS OF THE PAMPHLETEER "JUNIUS" WERE WIDELY REPRINTED IN
COLONIAL NEWSPAPERS AND LENT CONSIDERABLE SUPPORT TO THE REVOLUTIONARY
CAUSE.  SEE 3 DICTIONARY OF AMERICAN HISTORY 190 (1940).  LETTER XVIII
OF THE "LETTERS OF JUNIUS" BITTERLY ATTACKED THE EXCLUSION OF WILKES. 
THIS LETTER, ADDRESSED TO BLACKSTONE, ASSERTED: "YOU CANNOT BUT KNOW,
SIR, THAT WHAT WAS MR. WILKES'S CASE YESTERDAY MAY BE YOURS OR MINE TO
MORROW, AND THAT, CONSEQUENTLY THE COMMON RIGHT OF EVERY SUBJECT OF THE
REALM IS INVADED BY IT . . . . IF THE EXPULSION OF A MEMBER, NOT UNDER
ANY LEGAL DISABILITY, OF ITSELF CREATES IN HIM AN INCAPACITY TO BE
ELECTED, I SEE A READY WAY MARKED OUT, BY WHICH THE MAJORITY MAY, AT
ANY TIME, REMOVE THE HONESTEST AND ABLEST MEN WHO HAPPEN TO BE IN
OPPOSITION TO THEM.  TO SAY THAT THEY WILL NOT MAKE THIS EXTRAVAGANT
USE OF THEIR POWER WOULD BE A LANGUAGE UNFIT FOR A MAN SO LEARNED IN
THE LAWS AS YOU ARE.  BY YOUR DOCTRINE, SIR, THEY HAVE THE POWER:  AND
LAWS, YOU KNOW, ARE INTENDED TO GUARD AGAINST WHAT MEN MAY DO, NOT TO
TRUST TO WHAT THEY WILL DO."  1 LETTERS OF JUNIUS,LETTER XVIII, P. 118
(1821). 

/61/  SEE WARREN, SUPRA, AT 399-426. 

/62/  DICKINSON ALSO SAID THAT A BUILT-IN VENERATION FOR WEALTH
WOULD BE INCONSISTENT WITH THE REPUBLICAN IDEAL THAT MERIT ALONE SHOULD
DETERMINE WHO HOLDS THE PUBLIC TRUST.  2 FARRAND 123. 

/63/  ON AUGUST 10, A DELEGATE MOVED TO RECONSIDER THE CITIZENSHIP
QUALIFICATION.  THE DELEGATE PROPOSED TO SUBSTITUTE A THREE-YEAR
REQUIREMENT FOR THE SEVEN-YEAR REQUIREMENT ALREADY AGREED UPON.  THE
MOTION PASSED.  ID., AT 251.  HOWEVER, WHEN THIS PROPOSAL WAS
CONSIDERED ON AUGUST 13, IT WAS REJECTED.  ID., AT 265-266. 

/64/  CHARLES PICKNEY PROPOSED THAT THE PRESIDENT, JUDGES, AND
LEGISLATORS OF THE UNITED STATES BE REQUIRED TO SWEAR THAT THEY
POSSESSED A SPECIFIED AMOUNT OF UNINCUMBERED PROPERTY.  BENJAMIN
FRANKLIN EXPRESSED HIS STRONG OPPOSITION, OBSERVING THAT "(SOME OF THE
GREATEST ROGUES HE WAS EVER ACQUAINTED WITH, WERE THE RICHEST ROGUES." 
ID., AT 249.  HE VOICED THE FEAR THAT A PROPERTY REQUIREMENT WOULD
"DISCOURAGE THE COMMON PEOPLE FROM REMOVING TO THIS COUNTRY."  IBID.
THEREAFTER, "THE MOTION OF MR. PICKNEY (SIC) WAS REJECTED BY SO GENERAL
A NO, THAT THE STATES WERE NOT CALLED."  IBID. 

/65/  "THAT THE RIGHT OF THE ELECTORS TO BE REPRESENTED BY MEN OF
THEIR OWN CHOICE, WAS SO ESSENTIAL FOR THE PRESERVATION OF ALL THEIR
OTHER RIGHTS, THAT IT OUGHT TO BE CONSIDERED AS ONE OF THE MOST SACRED
PARTS OF OUR CONSTITUTION . . . . THAT THE LAW OF THE LAND HAD
REGULATED THE QUALIFICATIONS OF MEMBERS TO SERVE IN PARLIAMENT, AND
THAT THE FREEHOLDERS . . . HAD AN INDISPUTABLE RIGHT TO RETURN WHOM
THEY THOUGHT PROPER, PROVIDED HE WAS NOT DISQUALIFIED BY ANY OF THOSE
KNOWN LAWS . . . . THEY ARE NOT OCCASIONAL BUT FIXED:  TO RULE AND
GOVERN THE QUESTION AS IT SHALL ARISE; NOT TO START UP ON A SUDDEN, AND
SHIFT FROM SIDE TO SIDE, AS THE CAPRICE OF THE DAY OR THE FLUCTUATION
OF PARTY SHALL DIRECT."  16 PARL.HIST.ENG.  589-590 (1769). 

/66/  ID., AT 589. 

/67/  WILKES HAD MADE ESSENTIALLY THE SAME ARGUMENT IN ONE OF HIS
EARLY ATTEMPTS TO HAVE THE RESOLUTIONS DENYING HIM A SEAT EXPUNGED: 

"THIS USURPATION, IF ACQUIESCED UNDER, WOULD BE ATTENDED WITH THE
MOST ALARMING CONSEQUENCES.  IF YOU CAN REJECT THOSE DISAGREEABLE TO A
MAJORITY, AND EXPEL WHOM YOU PLEASE, THE HOUSE OF COMMONS WILL BE SELF
CREATED AND SELF-EXISTING.  YOU MAY EXPEL TILL YOU APPROVE, AND THUS IN
EFFECT YOU NOMINATE.  THE ORIGINAL IDEA OF THIS HOUSE BEING THE
REPRESENTATIVE OF THE COMMONS OF THE REALM WILL BE LOST."  18
PARL.HIST.ENG.  367 (1775). 

/68/  CHARLES WARREN CONCLUDED THAT "MADISON'S REFERENCE WAS
UNDOUBTEDLY TO THE FAMOUS ELECTION CASE OF JOHN WILKES . . . ." 
WARREN, SUPRA, AT 420, N. 1.  IT IS ALSO POSSIBLE, HOWEVER, THAT HE WAS
REFERRING TO THE PARLIAMENTARY TEST ACT, 30 CAR.  2, STAT. 2, C. 1
(1678), WHICH HAD EXCLUDED CATHOLICS AS A GROUP FROM SERVING IN
PARLIAMENT. 

/69/  CHARLES WARREN, UPON WHOSE INTERPRETATION OF THESE EVENTS
PETITIONERS RELY, CONCLUDED THAT THE CONVENTION'S DECISION TO REJECT
GOUVERNEUR MORRIS' PROPOSAL AND THE MORE LIMITED PROPOSAL OF THE
COMMITTEE OF DETAIL WAS AN IMPLICIT ADOPTION OF MADISON'S POSITION THAT
THE QUALIFICATIONS OF THE ELECTED "WERE FUNDAMENTAL ARTICLES IN A
REPUBLICAN GOVT. AND OUGHT TO BE FIXED BY THE CONSTITUTION."  2 FARRAND
249-250.  SEE WARREN, SUPRA, AT 420-421.  CERTAINLY, WARREN ARGUED,
"(SUCH ACTION WOULD SEEM TO MAKE IT CLEAR THAT THE CONVENTION DID NOT
INTENT TO GRANT TO A SINGLE BRANCH OR CONGRESS . . . THE RIGHT TO
ESTABLISH ANY QUALIFICATIONS FOR ITS MEMBERS, OTHER THAN THOSE
QUALIFICATIONS ESTABLISHED BY THE CONSTITUTION ITSELF . . . . FOR
CERTAINLY IT DID NOT INTEND THAT A SINGLE BRANCH OF CONGRESS SHOULD
POSSESS A POWER WHICH THE CONVENTION HAD EXPRESSLY REFUSED TO VEST IN
THE WHOLE CONGRESS."  ID., AT 421.  SEE 1 J.STORY,COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES 625, AT 445 (1873).  ALTHOUGH
PROFESSOR CHAFEE ARGUED THAT CONGRESSIONAL PRECEDENTS DO NOT SUPPORT
THIS CONSTRUCTION, HE NEVERTHELESS STATED THAT FORBIDDING ANY ADDITIONS
TO THE QUALIFICATIONS EXPRESSED IN THE CONSTITUTION WAS "THE SOUNDEST
POLICY."  Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 256 (1941). 

/70/  SEE 10 W.HOLDSWORTH,A HISTORY OF ENGLISH LAW 540-542 (1938). 

/71/  HOLDSWORTH NOTES THAT IN THE FIRST EDITION OF BLACKSTONE'S
COMMENTARIES BLACKSTONE ENUMERATED VARIOUS INCAPACITIES AND THEN
CONCLUDED THAT "SUBJECT TO THESE STANDING RESTRICTIONS AND
DISQUALIFICATIONS, EVERY SUBJECT OF THE REALM IS ELIGIBLE (FOR
MEMBERSHIP IN THE HOUSE OF COMMONS) OF COMMON RIGHT."  1 W.BLACKSTONE'S
COMMENTARIES *176.  BLACKSTONE WAS CALLED UPON IN COMMONS TO DEFEND
WILKES' EXCLUSION AND THE PASSAGE WAS QUOTED AGAINST HIM.  BLACKSTONE
RETALIATED BY WRITING A PAMPHLET AND MAKING TWO ADDITIONS TO LATER
EDITIONS OF HIS COMMENTARIES IN AN EFFORT TO JUSTIFY THE DECISION OF
PARLIAMENT.  HOLDSWORTH, SUPRA, AT 540-541. 

/72/  APPENDIX D TO BRIEF FOR RESPONDENTS 52. 

/73/  WARREN, SUPRA, AT 422, N. 1.  CHARLES WARREN BUTTRESSED HIS
CONCLUSION BY NOTING THAT THE MASSACHUSETTS CONSTITUTION OF 1780
"CONTAINED AFFIRMATIVE QUALIFICATIONS FOR REPRESENTATIVES AND EXACTLY
SIMILAR NEGATIVE QUALIFICATIONS FOR SENATORS."  IBID. APPARENTLY, THESE
PROVISIONS WERE NOT CONSIDERED SUBSTANTIVELY DIFFERENT, FOR EACH HOUSE
WAS EMPOWERED IN IDENTICAL LANGUAGE TO "JUDGE OF THE ELECTIONS, RETURNS
AND QUALIFICATIONS OF THEIR OWN MEMBERS, AS POINTED OUT IN THE
CONSTITUTION."  MASS. CONST., PT. 2, C. I, SEC. 2, ART. IV, 3 THORPE
1897, AND SEC. 3, ART. X, 3 THORPE 1899.  SEE WARREN, SUPRA, AT 422
423, N. 1. 

/74/  IN NO. 52 OF THE FEDERALIST, MADISON STATED: 

"THE QUALIFICATIONS OF THE ELECTED, BEING LESS CAREFULLY AND
PROPERLY DEFINED BY THE STATE CONSTITUTIONS, AND BEING AT THE SAME TIME
MORE SUSCEPTIBLE OF UNIFORMITY, HAVE BEEN VERY PROPERLY CONSIDERED AND
REGULATED BY THE CONVENTION.  (HE THEN ENUMERATED THE QUALIFICATIONS
FOR BOTH REPRESENTATIVES AND SENATORS.)  . . . UNDER THESE REASONABLE
LIMITATIONS, THE DOOR OF THIS PART OF THE FEDERAL GOVERNMENT IS OPEN TO
MERIT OF EVERY DESCRIPTION, WHETHER NATIVE OR ADOPTIVE, WHETHER YOUNG
OR OLD, AND WITHOUT REGARD TO POVERTY OR WEALTH, OR TO ANY PARTICULAR
PROFESSION OR RELIGIOUS FAITH."  THE FEDERALIST PAPERS 326 (MENTOR ED.
1961). 

/75/  RESPONDENTS DISMISS MADISON'S ASSERTION THAT THE "QUALIFICATIONS
OF THE ELECTED, . . . BEING AT THE SAME TIME MORE SUSCEPTIBLE OF
UNIFORMITY, HAVE BEEN VERY PROPERLY CONSIDERED AND REGULATED BY THE
CONVENTION," AS NOTHING MORE THAN A REFUTATION OF THE CHARGE THAT THE
NEW NATIONAL LEGISLATURE WOULD BE FREE TO ESTABLISH ADDITIONAL
"STANDING INCAPACITIES."  HOWEVER, THIS CONCLUSION CANNOT BE RECONCILED
WITH THE PRE-CONVENTION HISTORY ON THIS QUESTION, THE CONVENTION
DEBATES THEMSELVES, AND, IN PARTICULAR, THE DELEGATES'  DECISION TO
REQUIRE A TWO-THIRDS VOTE FOR EXPULSION. 

/76/  AT THE SAME CONVENTION, ROBERT LIVINGSTON, ONE OF THE NEW
CONSTITUTION'S MOST ARDENT SUPPORTERS AND ONE OF THE STATE'S MOST
SUBSTANTIAL LANDOWNERS, ENDORSED THIS SAME FUNDAMENTAL PRINCIPLE:  "THE
PEOPLE ARE THE BEST JUDGES WHO OUGHT TO REPRESENT THEM.  TO DICTATE AND
CONTROL THEM, TO TELL THEM WHOM THEY SHALL NOT ELECT, IS TO ABRIDGE
THEIR NATURAL RIGHTS."  2 ELLIOT'S DEBATES 292-293. 

/77/  APPENDIX D TO BRIEF FOR RESPONDENTS 62. 

/78/  IN 1797, DURING THE 5TH CONGRESS, 1ST SESSION, THE HOUSE
CONSIDERED EXPELLING MATTHEW LYON, A REPUBLICAN, FOR SEDITION.  THE
VOTE TO EXPEL, HOWEVER, WAS 49 TO 45, AND BROKE DOWN LARGELY ALONG
PARTISAN LINES.  ALTHOUGH LYON'S OPPONENTS, THE FEDERALISTS, RETAINED A
MAJORITY IN THE 6TH CONGRESS, TO WHICH LYON WAS RE-ELECTED, AND
ALTHOUGH THERE WERE POLITICAL ADVANTAGES TO BE GAINED FROM TRYING TO
PREVENT HIM FROM TAKING HIS SEAT, THERE WAS NO EFFORT MADE TO EXCLUDE
HIM.  SEE DIONISOPOULOS, A COMMENTARY ON THE CONSTITUTIONAL ISSUES IN
THE POWELL AND RELATED CASES, 17 J.PUB.L. 103, 123-127 (1968). 

/79/  ANOTHER MARYLAND REPRESENTATIVE WAS UNSUCCESSFULLY CHALLENGED
IN 1808 ON GROUNDS ALMOST IDENTICAL TO THOSE ASSERTED IN THE CHALLENGE
OF MCCREERY.  SEE 18 ANNALS OF CONG. 1848-1849 (1808).  IN 1844, THE
SENATE DECLINED TO EXCLUDE JOHN M. NILES, WHO WAS ACCUSED OF BEING
MENTALLY INCOMPETENT, AFTER A SPECIAL COMMITTEE REPORTED HIM
COMPETENT.  CONG. GLOBE, 28TH CONG. 1ST SESS., 564-565, 602 (1844).  IN
1856, THE HOUSE REJECTED AN ATTEMPT TO EXCLUDE SAMUEL MARSHALL FOR
VIOLATING AN ILLINOIS LAW PROHIBITING STATE JUDGES FROM RUNNING FOR
OTHER OFFICES.  1 HINDS 415.  THAT SAME YEAR, THE SENATE REFUSED TO
EXCLUDE LYMAN TRUMBULL FOR VIOLATING THE SAME ILLINOIS LAW.  IBID. 

/80/  BETWEEN 1862 AND 1867, BOTH THE HOUSE AND SENATE RESISTED
SEVERAL ATTEMPTS TO EXCLUDE MEMBERS-ELECT WHO WERE ACCUSED OF BEING
DISLOYAL TO THE UNION DURING THE CIVIL WAR.  SEE, ID., SECS. 448, 455,
458; SENATE ELECTION, EXPULSION AND CENSURE CASES, S. DOC. NO. 71, 87TH
CONG., 2D SESS., 21 (1962) (HEREINAFTER CITED AS SENATE CASES). 

/81/  THAT SAME YEAR THE SENATE ALSO EXCLUDED A SUPPORTER OF THE
CONFEDERACY.  SENATE CASES 40.  THE HOUSE EXCLUDED TWO OTHERS SHORTLY
THEREAFTER, ONE FOR THE SAME OFFENSE, AND ANOTHER FOR SELLING
APPOINTMENTS TO THE MILITARY AND NAVAL ACADEMIES.  SEE 1 HINDS 459,
464; 2 HINDS 1273. 

/82/  THIS DEPARTURE FROM PREVIOUS HOUSE CONSTRUCTION OF ITS POWER
TO EXCLUDE WAS EMPHASIZED BY CONGRESSMEN WILLIAM P. FESSENDEN:  "(THE
POWER WHICH WE HAVE UNDER THE CONSTITUTION TO JUDGE OF THE
QUALIFICATIONS OF MEMBERS OF THE BODY IS NOT A MERE ARBITRARY POWER, TO
BE EXERTED ACCORDING TO THE WILL OF THE INDIVIDUALS WHO MAY VOTE UPON
THE SUBJECT.  IT OUGHT TO BE A POWER SUBJECT TO CERTAIN RULES AND
FOUNDED UPON CERTAIN PRINCIPLES.  SO IT WAS UP TO A VERY LATE PERIOD,
UNTIL THE REBELLION.  THE RULE SIMPLY WAS, IF A MAN CAME HERE AND
PRESENTED PROPER CREDENTIALS FROM HIS STATE, TO ALLOW HIM TO TAKE THE
ORDINARY OATH, WHICH WE ALL TOOK, TO SUPPORT THE CONSTITUTION, AND BE
ADMITTED, AND IF THERE WAS ANY OBJECTION TO HIM TO TRY THAT QUESTION
AFTERWARD."  CONG. GLOBE, 40TH CONG., 2D SESS., 685 (1868). 

/83/  FOR EXAMPLE, IN 1870, THE HOUSE REFUSED TO EXCLUDE A TEXAS
CONGRESSMAN ACCUSED OF A VARIETY OF CRIMINAL ACTS, 1 HINDS 465; BUT IN
1882 AND AGAIN IN 1900 THE HOUSE EXCLUDED A MEMBER-ELECT FOR PRACTICING
POLYGAMY.  1 HINDS 473, 477-480.  THEREAFTER, IT APPARENTLY DID NOT
CONSIDER EXCLUDING ANYONE UNTIL SHORTLY AFTER WORLD WAR I, WHEN IT
TWICE EXCLUDED VICTOR L. BERGER, AN AVOWED SOCIALIST, FOR GIVING AID
AND COMFORT TO THE ENEMY.  SIGNIFICANTLY, THE HOUSE COMMITTEE
INVESTIGATING BERGER CONCLUDED THAT HE WAS INELIGIBLE UNDER THE EXPRESS
PROVISION OF SEC. 3 OF THE FOURTEENTH AMENDMENT.  6 C.CANNON,
PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES 56-59
(1935) (HEREINAFTER CITED AS CANNON).  BERGER, THE LAST PERSON TO BE
EXCLUDED FROM THE HOUSE PRIOR TO POWELL, WAS LATER RE-ELECTED AND
FINALLY ADMITTED AFTER HIS CRIMINAL CONVICTION WAS REVERSED.  65
CONG.REC.  7 (1923). 

THE HOUSE NEXT CONSIDERED THE PROBLEM IN 1925 WHEN IT CONTEMPLATED
EXCLUDING JOHN W. LANGLEY FOR HIS ALLEGED MISCONDUCT.  LANGLEY RESIGNED
AFTER LOSING A CRIMINAL APPEAL, AND THE HOUSE THEREFORE NEVER VOTED
UPON THE QUESTION.  6 CANNON 238.  THE MOST RECENT EXCLUSION ATTEMPT
PRIOR TO POWELL'S OCCURRED IN 1933, WHEN THE HOUSE REFUSED TO EXCLUDE A
REPRESENTATIVE FROM MINNESOTA WHO HAD BEEN CONVICTED OF SENDING
DEFAMATORY MATTER THROUGH THE MAIL.  SEE 77 CONG.REC.  73-74, 131-139
(1933). 

THE SENATE HAS NOT EXCLUDED ANYONE SINCE 1929; IN THAT YEAR IT
REFUSED TO SEAT A MEMBER-ELECT BECAUSE OF IMPROPER CAMPAIGN
EXPENDITURES.  6 CANNON 180.  IN 1947, A CONCERTED EFFORT WAS MADE TO
EXCLUDE SENATOR THEODORE G. BILBO OF MISSISSIPPI FOR ALLEGEDLY
ACCEPTING GIFTS FROM WAR CONTRACTORS AND ILLEGALLY INTIMIDATING NEGROES
IN DEMOCRATIC PRIMARIES.  SEE 93 CONG.REC.  3-28 (1947).  HE DIED,
HOWEVER, BEFORE A DECISION WAS REACHED. 

/84/  DURING THE DEBATES OVER H.R. RES. NO. 278, CONGRESSMAN CELLER,
CHAIRMAN OF BOTH THE SELECT COMMITTEE AND THE JUDICIARY COMMITTEE,
FORCEFULLY INSISTED THAT THE CONSTITUTION "UNALTERABLY FIXES AND
DEFINES" THE QUALIFICATIONS FOR MEMBERSHIP IN THE HOUSE AND THAT ANY
OTHER CONSTRUCTION OF ART. I, SEC. 5, WOULD BE "IMPROPER AND
DANGEROUS."  113 CONG.REC.  4998.  SEE H.R. REP. NO. 484, 43D CONG.,
1ST SESS., 11-15 (1874) (VIEWS OF MINORITY); H.R. REP. NO. 85, 56TH
CONG., 1ST SESS., 53-77 (1900) (VIEWS OF MINORITY).  IN THE LATTER
REPORT, THE DISSENTERS ARGUED:  "A SMALL PARTISAN MAJORITY MIGHT RENDER
THE DESIRE TO ARBITRARILY EXCLUDE, BY A MAJORITY VOTE, IN ORDER TO MORE
SECURELY INTRENCH ITSELF IN POWER, IRRESISTIBLE.  HENCE ITS EXERCISE IS
CONTROLLED BY LEGAL RULES.  IN CASE OF EXPULSION, WHEN THE REQUISITE
TWO-THIRDS CAN BE HAD, THE MOTIVE FOR THE EXERCISE OF ARBITRARY POWER
NO LONGER EXISTS, AS A TWO-THIRDS PARTISAN MAJORITY IS SUFFICIENT FOR
EVERY PURPOSE . . . . THE POWER OF EXCLUSION IS A MATTER OF LAW, TO BE
EXERCISED BY A MAJORITY VOTE, IN ACCORDANCE WITH LEGAL PRINCIPLES, AND
EXISTS ONLY WHERE A MEMBER-ELECT LACKS SOME OF THE QUALIFICATIONS
REQUIRED BY THE CONSTITUTION."  ID., AT 76-77. 

/85/ "DETERMINING THE BASIS FOR A CONGRESSIONAL ACTION IS ITSELF
DIFFICULT; SINCE A CONGRESSIONAL ACTION, UNLIKE A REPORTED JUDICIAL
DECISION, CONTAINS NO STATEMENT OF THE REASONS FOR THE DISPOSITION, ONE
MUST FALL BACK ON THE DEBATES AND THE COMMITTEE REPORTS.  IF MORE THAN
ONE ISSUE IS RAISED IN THE DEBATES, ONE CAN NEVER BE SURE ON WHAT BASIS
THE ACTION WAS PREDICATED.  UNLIKE A COURT, WHICH IS PRESUMED TO BE
DISINTERESTED, IN AN EXCLUSION CASE THE CONCERNED HOUSE IS IN EFFECT A
PARTY TO THE CONTROVERSY THAT IT MUST ADJUDICATE.  CONSEQUENTLY, SOME
MEMBERS MAY BE INCLINED TO VOTE FOR EXCLUSION THOUGH THEY STRONGLY
DOUBT ITS CONSTITUTIONALITY."  81 HARV.L.REV.,AT 679. 

/86/  IN FACT, THE COURT HAS NOTED THAT IT IS AN "INADMISSIBLE
SUGGESTION" THAT ACTION MIGHT BE TAKEN IN DISREGARD OF A JUDICIAL
DETERMINATION.  MCPHERSON V. BLACKER, 146 U.S. 1, 24 (1892). 

MR. JUSTICE DOUGLAS. 

WHILE I JOIN THE OPINION OF THE COURT, I ADD A FEW WORDS.  AS THE
COURT SAYS, THE IMPORTANT CONSTITUTIONAL QUESTION IS WHETHER THE
CONGRESS HAS THE POWER TO DEVIATE FROM OR ALTER THE QUALIFICATIONS FOR
MEMBERSHIP AS A REPRESENTATIVE CONTAINED IN ART. I, SEC. 2, CL. 2, OF
THE CONSTITUTION.  /1/  UP TO NOW THE UNDERSTANDING HAS BEEN QUITE
CLEAR TO THE EFFECT THAT SUCH AUTHORITY DOES NOT EXIST.  /2/  TO BE
SURE, ART. I, SEC. 5, PROVIDES THAT:  "EACH HOUSE SHALL BE THE JUDGE OF
THE ELECTIONS, RETURNS AND QUALIFICATIONS OF ITS OWN MEMBERS . . . ." 
CONTESTS MAY ARISE OVER WHETHER AN ELECTED OFFICIAL MEETS THE
"QUALIFICATIONS" OF THE CONSTITUTION, IN WHICH EVENT THE HOUSE IS THE
SOLE JUDGE.  /3/  BUT THE HOUSE IS NOT THE SOLE JUDGE WHEN
"QUALIFICATIONS" ARE ADDED WHICH ARE NOT SPECIFIED IN THE
CONSTITUTION.  /4/ 

A MAN IS NOT SEATED BECAUSE HE IS A SOCIALIST OR A COMMUNIST.  /5/ 

ANOTHER IS NOT SEATED BECAUSE IN HIS DISTRICT MEMBERS OF A MINORITY
ARE SYSTEMATICALLY EXCLUDED FROM VOTING.  /6/ 

ANOTHER IS NOT SEATED BECAUSE HE HAS SPOKEN OUT IN OPPOSITION TO THE
WAR IN VIETNAM.  /7/ 

THE POSSIBLE LIST IS LONG.  SOME CASES WILL HAVE THE RACIST
OVERTONES OF THE PRESENT ONE. 

OTHERS MAY REFLECT RELIGIOUS OR IDEOLOGICAL CLASHES.  /8/ 

AT THE ROOT OF ALL THESE CASES, HOWEVER, IS THE BASIC INTEGRITY OF
THE ELECTORAL PROCESS.  TODAY WE PROCLAIM THE CONSTITUTIONAL PRINCIPLE
OF "ONE MAN, ONE VOTE."  WHEN THAT PRINCIPLE IS FOLLOWED AND THE
ELECTORS CHOOSE A PERSON WHO IS REPULSIVE TO THE ESTABLISHMENT IN
CONGRESS, BY WHAT CONSTITUTIONAL AUTHORITY CAN THAT GROUP OF ELECTORS
BE DISENFRANCHISED? 

BY ART. I, SEC. 5, THE HOUSE MAY "EXPEL A MEMBER" BY A VOTE OF TWO
THIRDS.  AND IF THIS WERE AN EXPULSION CASE I WOULD THINK THAT NO
JUSTICIABLE CONTROVERSY WOULD BE PRESENTED, THE VOTE OF THE HOUSE BEING
TWO-THIRDS OR MORE.  BUT IT IS NOT AN EXPULSION CASE.  WHETHER IT COULD
HAVE BEEN WON AS AN EXPULSION CASE, NO ONE KNOWS.  EXPULSION FOR
"MISCONDUCT" MAY WELL RAISE DIFFERENT QUESTIONS, DIFFERENT
CONSIDERATIONS.  POLICING THE CONDUCT OF MEMBERS, A RECURRING PROBLEM
IN THE SENATE AND HOUSE AS WELL, IS QUITE DIFFERENT FROM THE INITIAL
DECISION WHETHER AN ELECTED OFFICIAL SHOULD BE SEATED.  IT WELL MIGHT
BE EASIER TO BAR ADMISSION THAN TO EXPEL ONE ALREADY SEATED. 

THE HOUSE EXCLUDED REPRESENTATIVE-ELECT POWELL FROM THE 90TH
CONGRESS ALLEGEDLY FOR MISAPPROPRIATING PUBLIC FUNDS AND FOR INCURRING
THE CONTEMPT OF NEW YORK COURTS.  /9/  TWENTY-SIX YEARS EARLIER,
MEMBERS OF THE UPPER CHAMBER ATTEMPTED TO EXCLUDE SENATOR-ELECT WILLIAM
LANGER OF NORTH DAKOTA FOR LIKE REASONS.  /10/  LANGER FIRST BECAME
STATE'S ATTORNEY FOR MORTON COUNTY, NORTH DAKOTA, FROM 1914 TO 1916,
AND THEN SERVED AS STATE ATTORNEY GENERAL FROM 1916 TO 1920.  HE BECAME
GOVERNOR OF THE STATE IN 1932 AND TOOK OFFICE IN JANUARY 1933.  IN 1934
HE WAS INDICTED FOR CONSPIRING TO INTERFERE WITH THE ENFORCEMENT OF
FEDERAL LAW BY ILLEGALLY SOLICITING POLITICAL CONTRIBUTIONS FROM
FEDERAL EMPLOYEES, AND SUIT WAS FILED IN THE STATE SUPREME COURT TO
REMOVE HIM FROM OFFICE.  /11/  WHILE THAT SUIT WAS PENDING HE CALLED
THE STATE LEGISLATURE INTO SPECIAL SESSION.  /12/  WHEN IT BECAME CLEAR
THAT THE COURT WOULD ORDER HIS OUSTER, HE SIGNED A DECLARATION OF
INDEPENDENCE, INVOKED MARTIAL LAW, AND CALLED OUT THE NATIONAL GUARD. 
/13/  NONETHELESS, WHEN HIS OWN OFFICERS REFUSED TO RECOGNIZE HIM AS
THE LEGAL HEAD OF STATE, HE LEFT OFFICE IN JULY 1934.  AS WITH ADAM
CLAYTON POWELL, HOWEVER, THE PEOPLE OF THE STATE STILL WANTED HIM.  IN
1937 THEY RE-ELECTED HIM GOVERNOR AND, IN 1940, THEY SENT HIM TO THE
UNITED STATES SENATE. 

DURING THE SWEARING-IN CEREMONIES, SENATOR BARKLEY DREW ATTENTION TO
CERTAIN COMPLAINTS FILED AGAINST LANGER BY CITIZENS OF NORTH DAKOTA,
YET ASKED THAT HE BE ALLOWED TO TAKE THE OATH OF OFFICE. 

"WITHOUT PREJUDICE, WHICH IS A TWO-SIDED PROPOSITION-- WITHOUT
PREJUDICE TO THE SENATOR AND WITHOUT PREJUDICE TO THE SENATE IN THE
EXERCISE OF ITS RIGHT (TO EXCLUDE HIM)."  /14/ THE MATTER OF LANGER'S
QUALIFICATIONS TO SERVE IN THE SENATE WAS REFERRED TO COMMITTEE WHICH
HELD CONFIDENTIAL HEARINGS ON JANUARY 9 AND 16, 1941, AND OPEN HEARINGS
ON NOVEMBER 3 AND 18, 1941.  BY A VOTE OF 14 TO 2, THE COMMITTEE
REPORTED THAT A MAJORITY OF THE SENATE HAD JURISDICTION UNDER ART. I,
SEC. 5, CL. 1, OF THE CONSTITUTION TO EXCLUDE LANGER; AND, BY A VOTE OF
13 TO 3, IT REPORTED ITS RECOMMENDATION THAT LANGER NOT BE SEATED. 
/15/ 

THE CHARGES AGAINST LANGER WERE VARIOUS.  AS WITH POWELL, THEY
INCLUDED CLAIMS THAT HE HAD MISAPPROPRIATED PUBLIC FUNDS /16/  AND THAT
HE HAD INTERFERED WITH THE JUDICIAL PROCESS IN A WAY THAT BECLOUDED THE
DIGNITY OF CONGRESS.  /17/  REFERENCE WAS ALSO MADE TO HIS PROFESSIONAL
ETHICS AS A LAWYER.  /18/ 

LANGER ENJOYED THE POWERFUL ADVOCACY OF SENATOR MURDOCK FROM UTAH. 
THE SENATE DEBATE ITSELF RAGED FOR OVER A YEAR.  /19/  MUCH OF IT
RELATED TO PURELY FACTUAL ALLEGATIONS OF "MORAL TURPITUDE."  SOME OF
IT, HOWEVER, WAS ADDRESSED TO THE POWER OF THE SENATE UNDER ART. I,
SEC. 5, CL. 1, TO EXCLUDE A MEMBER-ELECT FOR LACKING QUALIFICATIONS NOT
ENUMERATED IN ART. I, SEC. 3. 

     "MR. MURDOCK.  . . . (UNDER THE SENATOR'S THEORY THAT THE

  SENATE HAS THE RIGHT TO ADD QUALIFICATIONS WHICH ARE NOT

  SPECIFIED IN THE CONSTITUTION, DOES THE SENATOR BELIEVE THE

  SENATE COULD ADOPT A RULE SPECIFYING INTELLECTUAL AND MORAL

  QUALIFICATIONS?  /20/ 

     "MR. LUCAS.  THE SENATE CAN DO ANYTHING IT WANTS TO DO . . . .

YES; THE SENATE CAN DENY A PERSON HIS SEAT SIMPLY BECAUSE IT DOES

  NOT LIKE THE CUT OF HIS JAW, IF IT WISHES TO."  /21/

SENATOR MURDOCK ARGUED THAT THE ONLY QUALIFICATIONS FOR SERVICE IN THE
SENATE WERE THOSE ENUMERATED IN THE CONSTITUTION; THAT CONGRESS HAD THE
POWER TO REVIEW THOSE ENUMERATED QUALIFICATIONS; BUT THAT IT COULD NOT-
WHILE PURPORTING TO "JUDGE" THOSE QUALIFICATIONS-- IN REALITY ADD TO
THEM. 

     "MR. LUCAS.  THE SENATOR REFERRED TO ARTICLE I, SECTION 5. 

  WHAT DOES HE THINK THE FRAMERS OF THE CONSTITUTION MEANT WHEN

  THEY GAVE TO EACH HOUSE THE POWER TO DETERMINE OR TO JUDGE THE

  QUALIFICATIONS, AND SO FORTH, OF ITS OWN MEMBERS?  /22/ 

     "MR. MURDOCK.  I CONSTRUE THE TERM 'JUDGE' TO MEAN WHAT IT IS

  HELD TO MEAN IN ITS COMMON, ORDINARY USAGE.  MY UNDERSTANDING OF

  THE DEFINITION OF THE WORD 'JUDGE' AS A VERB IS THIS:  WHEN WE

  JUDGE OF A THINK IT IS SUPPOSED THAT THE RULES ARE LAID OUT; THE

  LAW IS THERE FOR US TO LOOK AT AND TO APPLY TO THE FACTS. 

     "BUT WHOEVER HEARD THE WORD 'JUDGE' USED AS MEANING THE POWER

  TO ADD TO WHAT ALREADY IS THE LAW?  /23/

IT WAS ALSO SUGGESTED FROM THE FLOOR THAT THE ENUMERATED QUALIFICATIONS
IN SEC. 3 WERE ONLY A MINIMUM WHICH THE SENATE COULD SUPPLEMENT; AND
THAT THE FOUNDING FATHERS SO INTENDED BY USING WORDS OF THE NEGATIVE. 
TO WHICH SENATOR MURDOCK REPLIED-- 

     "MR. PRESIDENT, I THINK IT IS THE VERY DISTINGUISHED AND ABLE

  SENATOR FROM GEORGIA WHO MAKES THE CONTENTION THAT THE

  CONSTITUTIONAL PROVISIONS RELATING TO QUALIFICATIONS, BECAUSE

  THEY ARE STATED IN THE NEGATIVE-- THAT IS, 'NO PERSON SHALL BE A

  SENATOR'-- ARE MERELY RESTRICTIONS OR PROHIBITIONS ON THE STATE;

 BUT-- AND I SHALL READ IT LATER ON-- WHEN WE READ WHAT MADISON

  SAID, WHEN WE READ WHAT HAMILTON SAID, WHEN WE READ WHAT THE

  OTHER FRAMERS OF THE CONSTITUTION SAID ON THAT QUESTION, THERE

  CANNOT BE A DOUBT AS TO WHAT THEY INTENDED AND WHAT THEY MEANT. 

  /24/

        .          .          .          . 

"MADISON KNEW THAT THE QUALIFICATIONS SHOULD BE CONTAINED IN THE
CONSTITUTION AND NOT LEFT TO THE WHIM AND CAPRICE OF THE LEGISLATURE. 
/25/

        .    .          .          . 

     "BEAR THAT IN MIND, THAT THE POSITIVE OR AFFIRMATIVE

  PHRASEOLOGY WAS NOT CHANGED TO THE NEGATIVE BY DEBATE OR BY

  AMENDMENT IN THE CONVENTION, BUT IT WAS CHANGED BY THE COMMITTEE

  OF WHICH MADISON WAS A MEMBER, THE COMMITTEE ON STYLE."  /26/

THE SENATE WAS NONETHELESS TROUBLED BY THE SUGGESTION THAT THE
CONSTITUTION COMPELLED IT TO ACCEPT ANYONE WHOM THE PEOPLE MIGHT ELECT,
NO MATTER HOW EGREGIOUS AND EVEN CRIMINAL HIS BEHAVIOR.  NO NEED TO
WORRY, SAID MURDOCK.  IT IS TRUE THAT THE SENATE CANNOT INVOKE ITS
MAJORITY POWER TO "JUDGE" UNDER ART. I, SEC. 5, CL. 1, AS A DEVICE FOR
EXCLUDING MEN ELECTED BY THE PEOPLE WHO POSSESS THE QUALIFICATIONS
ENUMERATED BY THE CONSTITUTION.  BUT IT DOES HAVE THE POWER UNDER ART.
I, SEC. 5, CL. 2, TO EXPEL ANYONE IT DESIGNATES BY A TWO-THIRDS VOTE. 
NONETHELESS, HE URGED THE SENATE NOT TO BYPASS THE TWO-THIRDS
REQUIREMENT FOR EXPULSION BY WRONGFULLY INVOKING ITS POWER TO EXCLUDE. 
/27/ 

     "MR. LUCAS.  . . . THE POSITION THE SENATOR FROM UTAH TAKES IS

  THAT IT DOES NOT MAKE ANY DIFFERENCE WHAT A SENATOR DOES IN THE

  WAY OF CRIME, THAT WHENEVER HE IS ELECTED BY THE PEOPLE OF HIS

  STATE, COMES HERE WITH BONA FIDE CREDENTIALS, AND THERE IS NO

  FRAUD IN THE ELECTION, THE SENATE CANNOT REFUSE TO GIVE HIM THE

  OATH.  THAT IS THE POSITION THE SENATOR TAKES? 

     "MR. MURDOCK.  THAT IS MY POSITION; YES.  /28/

        .          .          .          . 

"MY POSITION IS THAT WE DO NOT HAVE THE RIGHT TO EXCLUDE ANYONE WHO
COMES HERE CLOTHED WITH THE PROPER CREDENTIALS AND POSSESSING THE
CONSTITUTIONAL QUALIFICATIONS.  MY POSITION IS THAT WE DO NOT HAVE THE
RIGHT UNDER THE PROVISION OF THE CONSTITUTION TO WHICH THE SENATOR FROM
FLORIDA REFERRED, TO ADD TO THE QUALIFICATIONS.  MY POSITION IS THAT
THE STATE IS THE SOLE JUDGE OF THE INTELLECTUAL AND THE MORAL
QUALIFICATIONS OF THE REPRESENTATIVES IT SENDS TO CONGRESS."  /29/ 

     "MR. MURDOCK (QUOTING SENATOR PHILANDER KNOX).  'I KNOW OF NO

  DEFECT IN THE PLAIN RULE OF THE CONSTITUTION FOR WHICH I AM

  CONTENDING . . . . I CANNOT SEE THAT ANY DANGER TO THE SENATE

  LIES IN THE FACT THAN AN IMPROPER CHARACTER CANNOT BE EXCLUDED

WITHOUT A TWO-THIRDS VOTE.  IT REQUIRES THE UNANIMOUS VOTE OF A

  JURY TO CONVICT A MAN ACCUSED OF CRIME; IT SHOULD REQUIRE, AND I

  BELIEVE THAT IT DOES REQUIRE, A TWO-THIRDS VOTE TO EJECT A

  SENATOR FROM HIS POSITION OF HONOR AND POWER, TO WHICH HE HAS

  BEEN ELECTED BY A SOVEREIGN STATE.'"  /30/

THUS, AFTER A YEAR OF DEBATE, ON MARCH 27, 1942, THE SENATE OVERRULED
THE RECOMMENDATION OF ITS COMMITTEE AND VOTED 52 TO 30 TO SEAT LANGER. 

I BELIEVE THAT SENATOR MURDOCK STATED THE CORRECT CONSTITUTIONAL
PRINCIPLE GOVERNING THE PRESENT CASE. 

/1/  U.S. CONST., ART. I, SEC. 2, CL. 2: 

"NO PERSON SHALL BE A PREPRESENTATIVE WHO SHALL NOT HAVE ATTAINED TO
THE AGE OF TWENTY FIVE YEARS, AND BEEN SEVEN YEARS A CITIZEN OF THE
UNITED STATES, AND WHO SHALL NOT, WHEN ELECTED, BE AN INHABITANT OF
THAT STATE IN WHICH HE SHALL BE CHOSEN." 

/2/  THE CONSTITUTIONAL CONVENTION HAD THE OCCASION TO CONSIDER
SEVERAL PROPOSALS FOR GIVING CONGRESS DISCRETION TO SHAPE ITS OWN
QUALIFICATIONS FOR OFFICE AND EXPLICITLY REJECTED THEM.  JAMES MADISON
LED THE OPPOSITION BY ARGUING THAT SUCH DISCRETION WOULD BE "AN
IMPROPER & DANGEROUS POWER IN THE LEGISLATURE.  THE QUALIFICATIONS OF
ELECTORS AND ELECTED WERE FUNDAMENTAL ARTICLES IN A REPUBLICAN GOVT.
AND OUGHT TO BE FIXED BY THE CONSTITUTION.  IF THE LEGISLATURE COULD
REGULATE THOSE OF EITHER, IT CAN BY DEGREES SUBVERT THE CONSTITUTION." 
2 M.FARRAND,RECORDS OF THE FEDERAL CONVENTION OF 1787, PP. 249-250
(1911).  ALEXANDER HAMILTON ECHOED THAT SAME CONCLUSION:  "THE
QUALIFICATIONS OF THE PERSONS WHO MAY CHOOSE OR BE CHOSEN, AS HAS BEEN
REMARKED UPON OTHER OCCASIONS, ARE DEFINED AND FIXED IN THE
CONSTITUTION, AND ARE UNALTERABLE BY THE LEGISLATURE."  THE FEDERALIST
PAPERS, NO. 60, P. 371 (MENTOR ED. 1961).  AND SO, TOO, THE EARLY
CONGRESS OF 1807 DECIDED TO SEAT REPRESENTATIVE-ELECT WILLIAM MCCREERY
ON THE GROUND THAT ITS POWER TO "JUDGE" WAS LIMITED BY THE ENUMERATED
QUALIFICATIONS.  "THE COMMITTEE OF ELECTIONS CONSIDERED THE
QUALIFICATIONS OF MEMBERS TO HAVE BEEN UNALTERABLY DETERMINED BY THE
FEDERAL CONVENTION, UNLESS CHANGED BY AN AUTHORITY EQUAL TO THAT WHICH
FRAMED THE CONSTITUTION AT FIRST . . . . CONGRESS, BY THE FEDERAL
CONSTITUTION, ARE NOT AUTHORIZED TO PRESCRIBE THE QUALIFICATIONS OF
THEIR OWN MEMBERS, BUT THEY ARE AUTHORIZED TO JUDGE OF THEIR
QUALIFICATIONS; IN DOING SO, HOWEVER, THEY MUST BE GOVERNED BY THE
RULES PRESCRIBED BY THE FEDERAL CONSTITUTION, AND BY THEM ONLY."  17
ANNALS OF CONG. 872 (1807) (REMARKS OF REP. FINDLEY, CHAIRMAN OF HOUSE
COMMITTEE OF ELECTIONS).  CONSTITUTIONAL SCHOLARS OF TWO CENTURIES HAVE
REAFFIRMED THE PRINCIPLE THAT CONGRESSIONAL POWER TO "JUDGE" THE
QUALIFICATIONS OF ITS MEMBERS IS LIMITED TO THOSE ENUMERATED IN THE
CONSTITUTION.  1 J.STORY,COMMENTARIES ON THE CONSTITUTION 462 (5TH ED.
1891); C. WARREN, THE MAKING OF THE CONSTITUTION 420-426 (1928).  SEE
ALSO REMARKS BY EMMANUEL CELLER, CHAIRMAN OF THE HOUSE SELECT COMMITTEE
WHICH INQUIRED INTO THE QUALIFICATIONS OF ADAM CLAYTON POWELL, JR., AND
WHICH RECOMMENDED SEATING HIM: "THE CONSTITUTION LAYS DOWN THREE
QUALIFICATIONS FOR ONE TO ENTER CONGRESS-- AGE, INHABITANCY,
CITIZENSHIP.  MR. POWELL SATISFIES ALL THREE.  THE HOUSE CANNOT ADD TO
THESE QUALIFICATIONS."  113 CONG.REC.  4998. 

/3/  BAKER V. CARR, 369 U.S. 186, 242, N. 2 (DOUGLAS, J.,
CONCURRING). 

/4/  THE QUESTION WHETHER CONGRESS HAS AUTHORITY UNDER THE
CONSTITUTION TO ADD TO ENUMERATED QUALIFICATIONS FOR OFFICE IS ITSELF A
FEDERAL QUESTION WITHIN THE PARTICULAR EXPERTISE OF THIS COURT.  BAKER
V. CARR, 369 U.S. 186, 211.  WHERE THAT AUTHORITY HAS BEEN EXCEEDED,
REDRESS MAY BE PROPERLY SOUGHT HERE.  MARBURY V. MADISON, 1 CRANCH
137.  CONGRESS ITSELF SUSPECTED NO LESS IN DECIDING TO EXCLUDE REP.
POWELL:  "(CASES MAY READILY BE POSTULATED WHERE THE ACTION OF A HOUSE
IN EXCLUDING OR EXPELLING A MEMBER MAY DIRECTLY IMPINGE UPON RIGHTS
UNDER OTHER PROVISIONS OF THE CONSTITUTION.  IN SUCH CASES, THE
UNAVAILABILITY OF JUDICIAL REVIEW MAY BE LESS CERTAIN.  SUPPOSE, FOR
EXAMPLE, THAT A MEMBER WAS EXCLUDED OR EXPELLED BECAUSE OF HIS RELIGION
OR RACE, CONTRARY TO THE EQUAL PROTECTION CLAUSE, OR FOR MAKING AN
UNPOPULAR SPEECH PROTECTED BY THE FIRST AMENDMENT . . . . (EXCLUSION OF
THE MEMBER-ELECT ON GROUNDS OTHER THAN AGE, CITIZENSHIP, OR INHABITANCY
COULD RAISE AN EQUALLY SERIOUS CONSTITUTIONAL ISSUE."  H.R. REP. NO.
27, 90TH CONG., 1ST SESS., 30 (1967).  SEE ALSO 113 CONG.REC.  4994. 

/5/  CASE OF VICTOR BERGER, 6 C.CANNON,PRECEDENTS OF THE HOUSE OF
REPRESENTATIVES OF THE UNITED STATES 56 (1935). 

/6/  ID., AT SEC. 122. 

/7/  SEE, E.G., BOND V. FLOYD, 385 U.S. 116. 

/8/  1 A.HINDS,PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE
UNITED STATES 481 (1907). 

/9/  113 CONG.REC.  4997. 

/10/  S. DOC. NO. 71 ON SENATE ELECTION, EXPULSION AND CENSURE CASES
FROM 1789 TO 1960, 87TH CONG., 2D SESS., 140 (1962). 

/11/  HEARINGS ON A PROTEST TO THE SEATING OF WILLIAM LANGER, BEFORE
THE SENATE COMMITTEE ON PRIVILEGES AND ELECTIONS, 77TH CONG., 1ST
SESS., 820 (NOV. 3, 18, 1941) (HEREINAFTER HEARINGS). 

/12/  HEARINGS 821. 

/13/  HEARINGS 820. 

/14/  87 CONG.REC.  3-4 (1941). 

/15/  S. REP. NO. 1010, 77TH CONG., 2D SESS. (1942). 

/16/  IT WAS ALLEGED THAT HE HAD CONSPIRED AS GOVERNOR TO HAVE
MUNICIPAL AND COUNTY BONDS SOLD TO A FRIEND OF HIS WHO MADE A PROFIT OF
$300,000 ON THE PURCHASE, AND PURPORTEDLY REBATED AS MUCH AS $56,000 TO
LANGER HIMSELF.  HEARINGS 822-823. 

/17/  AT THE RETRIAL OF HIS CONVICTION FOR CONSPIRING TO INTERFERE
WITH THE ENFORCEMENT OF FEDERAL LAW, HE WAS SAID TO HAVE PAID MONEY TO
HAVE A FRIEND OF HIS, JUDGE WYMAN, BE GIVEN CONTROL OF THE LITIGATION,
AND TO HAVE "MEDDLED" WITH THE JURY.  HEARINGS 20-42, 120-130. 

/18/  HE WAS CHARGED AS A LAWYER WITH HAVING ACCEPTED $2,000 FROM
THE MOTHER OF A BOY IN PRISON ON THE PROMISE THAT HE WOULD OBTAIN HIS
PARDON, WHEN HE KNEW, IN FACT, THAT A PARDON WAS OUT OF THE QUESTION. 
HE WAS ALSO SAID TO HAVE COUNSELED A DEFENDANT-CLIENT OF HIS TO MARRY
THE PROSECUTION'S CHIEF WITNESS IN ORDER TO PREVENT HER FROM TESTIFYING
AGAINST HIM.  AND FINALLY, IT WAS SUGGESTED THAT HE ONCE BOUGHT AN
INSURANCE POLICY DURING TRIAL FROM ONE OF THE JURORS SITTING IN
JUDGMENT OF HIS CLIENT.  HEARINGS 820-830. 

/19/  87 CONG.REC.  3-4, 460 (1941); 88 CONG.REC.  822, 828, 1253,
2077, 2165, 2239, 2328, 2382, 2412, 2472, 2564, 2630, 2699, 2759, 2791,
2801, 2842, 2858, 2914, 2917, 2959, 2972, 2989, 3038, 3051, 3065, 5668
(1942). 

/20/  88 CONG.REC.  2401. 

/21/  IBID. 

/22/  88 CONG.REC.  2474. 

/23/  IBID. 

/24/ IBID. 

/25/  88 CONG.REC.  2483. 

/26/  88 CONG.REC.  2484. 

/27/  ALTHOUGH THE HOUSE EXCLUDED ADAM CLAYTON POWELL BY OVER TWO
THIRDS VOTE, IT WAS OPERATING ON THE ASSUMPTION THAT ONLY A MAJORITY
WAS NEEDED.  FOR THE SUGGESTION THAT THE HOUSE COULD NEVER HAVE RALLIED
THE VOTES TO EXCLUDE POWELL ON THE BASIS OF A TWO-THIRDS GROUND RULE,
SEE NOTE, 14 HOW.L.J. 162 (1968); NOTE, 42 N.Y.U.L.REV.  716 (1967). 

/28/  88 CONG.REC.  2488. 

/29/  88 CONG.REC.  2490. 

/30/  88 CONG.REC.  2488.  SENATOR KNOX OF PENNSYLVANIA HAD DEFENDED
SENATOR-ELECT REED SMOOT OF UTAH IN 1903 AGAINST CHARGES THAT HE OUGHT
TO BE EXCLUDED BECAUSE OF HIS AFFILIATION WITH A GROUP (MORMONS) THAT
COUNTENANCED POLYGAMY.  S. DOC. NO. 71, 87TH CONG., 2D SESS., 97. 

MR. JUSTICE STEWART, DISSENTING. 

I BELIEVE THAT EVENTS WHICH HAVE TAKEN PLACE SINCE CERTIORARI WAS
GRANTED IN THIS CASE ON NOVEMBER 18, 1968, HAVE RENDERED IT MOOT, AND
THAT THE COURT SHOULD THEREFORE REFRAIN FROM DECIDING THE NOVEL,
DIFFICULT, AND DELICATE CONSTITUTIONAL QUESTIONS WHICH THE CASE
PRESENTED AT ITS INCEPTION. 

        I. 

THE ESSENTIAL PURPOSE OF THIS LAWSUIT BY CONGRESSMAN POWELL AND
MEMBERS OF HIS CONSTITUENCY WAS TO REGAIN THE SEAT FROM WHICH HE WAS
BARRED BY THE 90TH CONGRESS.  THAT PURPOSE, HOWEVER, BECAME IMPOSSIBLE
OF ATTAINMENT ON JANUARY 3, 1969, WHEN THE 90TH CONGRESS PASSED INTO
HISTORY AND THE 91ST CONGRESS CAME INTO BEING.  ON THAT DATE, THE
PETITIONERS' PRAYER FOR A JUDICIAL DECREE RESTRAINING ENFORCEMENT OF
HOUSE RESOLUTION NO. 278 AND COMMANDING THE RESPONDENTS TO ADMIT
CONGRESSMAN POWELL TO MEMBERSHIP IN THE 90TH CONGRESS BECAME
INCONTESTABLY MOOT. 

THE PETITIONERS ASSERT THAT ACTIONS OF THE HOUSE OF REPRESENTATIVES
OF THE 91ST CONGRESS HAVE PROLONGED THE CONTROVERSY RAISED BY POWELL'S
EXCLUSION AND PRESERVED THE NEED FOR A JUDICIAL DECLARATION IN THIS
CASE.  I BELIEVE, TO THE CONTRARY, THAT THE CONDUCT OF THE PRESENT
HOUSE OF REPRESENTATIVES CONFIRMS THE MOOTNESS OF THE PETITIONERS' SUIT
AGAINST THE 90TH CONGRESS.  HAD POWELL BEEN EXCLUDED FROM THE 91ST
CONGRESS, HE MIGHT ARGUE THAT THERE WAS A "CONTINUING CONTROVERSY"
CONCERNING THE EXCLUSION ATTACKED IN THIS CASE.  /1/  AND SUCH AN
ARGUMENT MIGHT BE SOUND EVEN THOUGH THE PRESENT HOUSE OF
REPRESENTATIVES IS A DISTINCT LEGISLATIVE BODY RATHER THAN A
CONTINUATION OF ITS PREDECESSOR, /2/  AND THOUGH ANY GRIEVANCE CAUSED
BY CONDUCT OF THE 91ST CONGRESS IS NOT REDRESSABLE IN THIS ACTION.  BUT
ON JANUARY 3, 1969, THE HOUSE OF REPRESENTATIVES OF THE 91ST CONGRESS
ADMITTED CONGRESSMAN POWELL TO MEMBERSHIP, AND HE NOW SITS AS THE
REPRESENTATIVE OF THE 18TH CONGRESSIONAL DISTRICT OF NEW YORK.  WITH
THE 90TH CONGRESS TERMINATED AND POWELL NOW A MEMBER OF THE 91ST, IT
CANNOT SERIOUSLY BE CONTENDED THAT THERE REMAINS A JUDICIAL CONTROVERSY
BETWEEN THESE PARTIES OVER THE POWER OF THE HOUSE OF REPRESENTATIVES TO
EXCLUDE POWELL AND THE POWER OF A COURT TO ORDER HIM RESEATED. 
UNDERSTANDABLY, NEITHER THE COURT NOR THE PETITIONERS ADVANCE THE
WHOLLY UNTENABLE PROPOSITION THAT THE CONTINUATION OF THIS CASE CAN BE
FOUNDED ON THE INFINITELY REMOTE POSSIBILITY THAT CONGRESSMAN POWELL,
OR ANY OTHER REPRESENTATIVE, MAY SOMEDAY BE EXCLUDED FOR THE SAME
REASONS OR IN THE SAME MANNER.  AND BECAUSE NO FORESEEABLE POSSIBILITY
OF SUCH FUTURE CONDUCT EXISTS, THE RESPONDENTS HAVE MET THEIR HEAVY
BURDEN OF SHOWING THAT "SUBSEQUENT EVENTS MADE IS ABSOLUTELY CLEAR THAT
THE ALLEGEDLY WRONGFUL BEHAVIOR COULD NOT REASONABLY BE EXPECTED TO
RECUR."  UNITED STATES V. CONCENTRATED PHOSPHATE EXPORT ASSN., 393 U.S.
199, 203.  /3/ 

THE PETITIONERS FURTHER ARGUE THAT THIS CASE CANNOT BE DEEMED MOOT
BECAUSE OF THE PRINCIPLE THAT "THE VOLUNTARY ABANDONMENT OF A PRACTICE
DOES NOT RELIEVE A COURT OF ADJUDICATING ITS LEGALITY . . . ."  GRAY V.
SANDERS, 372 U.S. 368, 376.  /4/  I THINK IT MANIFEST, HOWEVER, THAT
THIS PRINCIPLE AND THE CASES ENUNCIATING IT HAVE NO APPLICATION TO THE
PRESENT CASE.  IN THE FIRST PLACE, THIS CASE DOES NOT INVOLVE "THE
VOLUNTARY ABANDONMENT OF A PRACTICE."  RATHER IT BECAME MOOT BECAUSE OF
AN EVENT OVER WHICH THE RESPONDENTS HAD NO CONTROL-- THE EXPIRATION OF
THE 90TH CONGRESS.  MOREOVER, UNLIKE THE CASES RELIED ON BY THE
PETITIONERS, THERE HAS HERE BEEN NO ONGOING COURSE OF CONDUCT OF
INDEFINITE DURATION AGAINST WHICH A PERMANENT INJUNCTION IS NECESSARY. 
THUS, IT CANNOT BE SAID OF THE RESPONDENTS' ACTIONS IN THIS CASE, AS IT
WAS OF THE CONDUCT SOUGHT TO BE ENJOINED IN GRAY, FOR EXAMPLE, THAT
"THE PRACTICE IS DEEPLY ROOTED AND LONG STANDING," IBID., OR THAT,
WITHOUT JUDICIAL RELIEF, THE RESPONDENTS WOULD BE "FREE TO RETURN TO
(THEIR) OLD WAYS."  UNITED STATES V. W. T. GRANT CO., 345 U.S. 629,
632.  /5/  FINALLY, AND MOST IMPORTANT, THE "VOLUNTARY ABANDONMENT"
RULE DOES NOT DISPENSE WITH THE REQUIREMENT OF A CONTINUING
CONTROVERSY, NOR COULD IT UNDER THE DEFINITION OF THE JUDICIAL POWER IN
ARTICLE III OF THE CONSTITUTION.  VOLUNTARY CESSATION OF UNLAWFUL
CONDUCT DOES MAKE A CASE MOOT "IF THE DEFENDANT CAN DEMONSTRATE THAT
'THERE IS NO REASONABLE EXPECTATION THAT THE WRONG WILL BE REPEATED.'" 
ID., AT 633.  /6/  SINCE THAT IS THE SITUATION HERE, THE CASE WOULD BE
MOOT EVEN IF IT COULD BE SAID THAT IT BECAME SO BY THE HOUSE'S
"VOLUNTARY ABANDONMENT" OF ITS "PRACTICE" OF EXCLUDING CONGRESSMAN
POWELL. 

THE PETITIONERS' PROPOSITION THAT CONDUCT OF THE 91ST CONGRESS HAS
PERPETUATED THE CONTROVERSY IS BASED ON THE FACT THAT HOUSE RESOLUTION
NO. 2-- THE SAME RESOLUTION BY WHICH THE HOUSE VOTED TO SEAT POWELL--
FINED HIM $25,000 AND PROVIDED THAT HIS SENIORITY WAS TO COMMENCE AS OF
THE DATE HE BECAME A MEMBER OF THE 91ST CONGRESS.  /7/  THAT
PUNISHMENT, IT IS SAID, "ARISES OUT OF THE PRIOR ACTIONS OF THE HOUSE
WHICH ORIGINALLY IMPELLED THIS ACTION."  IT IS INDISPUTABLE, HOWEVER,
THAT PUNISHMENT OF A HOUSE MEMBER INVOLVES CONSTITUTIONAL ISSUES
ENTIRELY DISTINCT FROM THOSE RAISED BY EXCLUSION, /8/  AND THAT A
PUNISHMENT IN ONE CONGRESS IS IN NO LEGAL SENSE A "CONTINUATION" OF AN
EXCLUSION FROM THE PREVIOUS CONGRESS.  A JUDICIAL DETERMINATION THAT
THE EXCLUSION WAS IMPROPER WOULD HAVE NO BEARING ON THE
CONSTITUTIONALITY OF THE PUNISHMENT, NOR ANY CONCEIVABLE PRACTICAL
IMPACT ON POWELL'S STATUS IN THE 91ST CONGRESS.  IT IS THUS CLEAR THAT
THE ONLY CONNECTION BETWEEN THE EXCLUSION BY THE 90TH CONGRESS AND THE
PUNISHMENT BY THE 91ST IS THAT THEY WERE EVIDENTLY BASED ON THE SAME
ASSERTED DERELICTIONS OF CONGRESSMAN POWELL.  BUT THIS ACTION WAS NOT
BROUGHT TO EXONERATE POWELL OR TO EXPUNGE THE LEGISLATIVE FINDINGS OF
HIS WRONGDOING; ITS ONLY PURPOSE WAS TO RESTRAIN THE ACTION TAKEN IN
CONSEQUENCE OF THOSE FINDINGS-- POWELL'S EXCLUSION. 

EQUALLY WITHOUT SUBSTANCE IS THE PETITIONERS' CONTENTION THAT THIS
CASE IS SAVED FROM MOOTNESS BY APPLICATION OF THE ASSERTED "PRINCIPLE"
THAT A CASE CHALLENGING ALLEGEDLY UNCONSTITUTIONAL CONDUCT CANNOT BE
RENDERED MOOT BY FURTHER UNCONSTITUTIONAL CONDUCT OF THE DEFENDANTS. 
UNDER THIS HYPOTHESIS, IT IS SAID THAT THE "COURT CAN NOT DETERMINE
THAT THE CONDUCT OF THE HOUSE ON JANUARY 3, 1969, HAS MOOTED THIS
CONTROVERSY WITHOUT INFERENTIALLY, AT LEAST, HOLDING THAT THE ACTION OF
THE HOUSE OF THAT DAY WAS LEGAL AND CONSTITUTIONALLY PERMISSIBLE."  IF
THERE IS IN OUR JURISPRUDENCE ANY DOCTRINE REMOTELY RESEMBLING THE
PETITIONERS' THEORY-- WHICH THEY OFFER WITHOUT REFERENCE TO ANY
AUTHORITY-- IT HAS NO CONCEIVABLE RELEVANCE TO THIS CASE.  FOR THE
EVENTS OF JANUARY 3, 1969, THAT MADE THIS CASE MOOT WERE THE
TERMINATION OF THE 90TH CONGRESS AND POWELL'S SEATING IN THE 91ST, NOT
THE PUNISHMENT WHICH THE PETITIONERS ALLEGE TO HAVE BEEN
UNCONSTITUTIONAL.  THAT PUNISHMENT IS WHOLLY IRRELEVANT TO THE QUESTION
OF MOOTNESS AND IS IN NO WISE BEFORE THE COURT IN THIS CASE. 

        II. 

THE PASSAGE OF TIME AND INTERVENING EVENTS HAVE, THEREFORE, MADE IT
IMPOSSIBLE TO AFFORD THE PETITIONERS THE PRINCIPAL RELIEF THEY SOUGHT
IN THIS CASE.  IF ANY ASPECT OF THE CASE REMAINS ALIVE, IT IS ONLY
CONGRESSMAN POWELL'S INDIVIDUAL CLAIM FOR THE SALARY OF WHICH HE WAS
DEPRIVED BY HIS ABSENCE FROM THE 90TH CONGRESS.  /9/  BUT EVEN IF THAT
CLAIM CAN BE SAID TO PREVENT THIS CONTROVERS[ FROM BEING MOOT, WHICH I
DOUBT, THERE IS NO NEED TO REACH THE FUNDAMENTAL CONSTITUTIONAL ISSUES
THAT THE COURT TODAY UNDERTAKES TO DECIDE. 

THIS COURT HAS NOT IN THE PAST FOUND THAT AN INCIDENTAL CLAIM FOR
BACK PAY PRESERVES THE CONTROVERSY BETWEEN A LEGISLATOR AND THE
LEGISLATIVE BODY WHICH EVICTED HIM, ONCE THE TERM OF HIS EVICTION HAS
EXPIRED.  ALEJANDRINO V. QUEZON, 271 U.S. 528, WAS A CASE NEARLY
IDENTICAL TO THAT BEFORE THE COURT TODAY.  THE PETITIONER WAS A MEMBER
OF THE SENATE OF THE PHILIPPINES WHO HAD BEEN SUSPENDED FOR ONE YEAR
FOR ASSAULTING A COLLEAGUE.  HE BROUGHT AN ACTION IN THE SUPREME COURT
OF THE PHILIPPINES AGAINST THE ELECTED MEMBERS OF THE SENATE /10/  AND
ITS OFFICERS AND EMPLOYEES (THE PRESIDENT, SECRETARY, SERGEANT AT ARMS,
AND PAYMASTER), SEEKING A WRIT OF MANDAMUS AND AN INJUCTION RESTORING
HIM TO HIS SEAT AND TO ALL THE PRIVILEGES AND EMOLUMENTS OF OFFICE. 
THE SUPREME COURT OF THE PHILIPPINES DISMISSED THE ACTION FOR WANT OF
JURISDICTION AND ALEJANDRINO BROUGHT THE CASE HERE, /11/  ARGUING THAT
THE SUSPENSION WAS NOT AUTHORIZED BY THE PHILIPPINE AUTONOMY ACT, A
STATUTE WHICH INCORPORATED MOST OF THE PROVISIONS OF ARTICLE I OF THE
UNITED STATES CONSTITUTION.  /12/ 

BECAUSE THE PERIOD OF THE SUSPENSION HAD EXPIRED WHILE THE CASE WAS
PENDING ON CERTIORARI, A UNANIMOUS COURT, IN AN OPINION BY CHIEF
JUSTICE TAFT, VACATED THE JUDGMENT AND REMANDED THE CASE WITH
DIRECTIONS TO DISMISS IT AS MOOT.  TO ALEJANDRINO'S CLAIM THAT HIS
RIGHT TO BACK PAY KEPT THE CASE ALIVE, THE COURT GAVE THE FOLLOWING
ANSWER, WHICH, BECAUSE OF ITS PARTICULAR PERTINENCY TO THIS CASE, I
QUOTE AT LENGTH: 

    "IT MAY BE SUGGESTED, AS AN OBJECTION TO OUR VACATING THE

  ACTION OF THE COURT BELOW, AND DIRECTING THE DISMISSAL OF THE

  PETITION AS HAVING BECOME A MOOT CASE, THAT, WHILE THE LAPSE OF

  TIME HAS MADE UNNECESSARY AND FUTILE A WRIT OF MANDAMUS TO

  RESTORE SENATOR ALEJANDRINO TO THE ISLAND SENATE THERE STILL

  REMAINS A RIGHT ON HIS PART TO THE RECOVERY OF HIS EMOLUMENTS,

  WHICH WERE WITHHELD DURING HIS SUSPENSION, AND THAT WE OUGHT TO

  RETAIN THE CASE FOR THE PURPOSE OF DETERMINING WHETHER HE MAY NOT

  HAVE A MANDAMUS FOR THIS PURPOSE . . . . IT IS DIFFICULT FOR THE

COURT TO DEAL WITH THIS FEATURE OF THE CASE, WHICH IS REALLY ONLY

  A MERE INCIDENT TO THE MAIN QUESTION MADE IN THE PETITION AND

  CONSIDERED IN THE ABLE AND EXTENDED BRIEF OF COUNSEL FOR THE

  PETITIONER, AND THE ONLY BRIEF BEFORE US.  THAT BRIEF IS NOT IN

  ANY PART OF IT DIRECTED TO THE SUBJECT OF EMOLUMENTS, NOR DOES IT

  REFER US TO ANY STATUTE OR TO THE RULES OF THE SENATE BY WHICH

  THE METHOD OF PAYING SENATORS' SALARIES IS PROVIDED, OR IN A

  DEFINITE WAY DESCRIBE THE DUTIES OF THE OFFICER OR OFFICERS OR

  COMMITTEE CHARGED WITH THE MINISTERIAL FUNCTION OF PAYING THEM. 

        .          .          .          . 

     " . . . THE REMEDY OF THE SENATOR WOULD SEEM TO BE BY MANDAMUS

TO COMPEL SUCH OFFICIAL IN THE DISCHARGE OF HIS MINISTERIAL DUTY

  TO PAY HIM THE SALARY DUE, AND THE PRESENCE OF THE SENATE AS A

  PARTY WOULD BE UNNECESSARY.  SHOULD THAT OFFICIAL RELY UPON THE

  RESOLUTION OF THE SENATE AS A REASON FOR REFUSING TO COMPLY WITH

  HIS DUTY TO PAY SENATORS, THE VALIDITY OF SUCH A DEFENSE AND THE

  VALIDITY OF THE RESOLUTION MIGHT BECOME A JUDICIAL QUESTION

  AFFECTING THE PERSONAL RIGHT OF THE COMPLAINING SENATOR, PROPERLY

  TO BE DISPOSED OF IN SUCH ACTION, BUT NOT REQUIRING THE PRESENCE

 OF THE SENATE AS A PARTY FOR ITS ADJUDICATION.  THE RIGHT OF THE

  PETITIONER TO HIS SALARY DOES NOT THEREFORE INVOLVE THE VERY

  SERIOUS ISSUE RAISED IN THIS PETITION AS TO THE POWER OF THE

  PHILIPPINE SUPREME COURT TO COMPEL BY MANDAMUS ONE OF THE TWO

  LEGISLATIVE BODIES CONSTITUTING THE LEGISLATIVE BRANCH OF THE

  GOVERNMENT TO RESCIND A RESOLUTION ADOPTED BY IT IN ASSERTED

  LAWFUL DISCIPLINE OF ONE OF ITS MEMBERS, FOR DISORDER AND BREACH

  OF PRIVILEGE.  WE THINK, NOW THAT THE MAIN QUESTION AS TO THE

  VALIDITY OF THE SUSPENSION HAS BECOME MOOT, THE INCIDENTAL ISSUE

AS TO THE REMEDY WHICH THE SUSPENDED SENATOR MAY HAVE IN RECOVERY

  OF HIS EMOLUMENTS, IF ILLEGALLY WITHHELD, SHOULD PROPERLY BE

  TRIED IN A SEPARATE PROCEEDING AGAINST AN EXECUTIVE OFFICER OR

  OFFICERS AS DESCRIBED.  AS WE ARE NOT ABLE TO DERIVE FROM THE

  PETITION SUFFICIENT INFORMATION UPON WHICH PROPERLY TO AFFORD

  SUCH A REMEDY, WE MUST TREAT THE WHOLE CAUSE AS MOOT AND ACT

  ACCORDINGLY.  THIS ACTION ON OUR PART OF COURSE IS WITHOUT

  PREJUDICE TO A SUIT BY SENATOR ALEJANDRINO AGAINST THE PROPER

  EXEUCTIVE OFFICER OR COMMITTEE BY WAY OF MANDAMUS OR OTHERWISE TO

  OBTAIN PAYMENT OF THE SALARY WHICH MAY HAVE BEEN UNLAWFULLY

WITHHELD FROM HIM."  271 U.S.,AT 533, 534-535.  /13/ 

BOTH OF THE FACTORS ON WHICH THE COURT RELIED IN ALEJANDRINO ARE
PRESENT IN THIS CASE.  INDEED, THE SALARY CLAIM IS AN EVEN MORE
INCIDENTAL AND SUBORDINATE ASPECT OF THIS CASE THAN IT WAS OF
ALEJANDRINO.  /14/  AND THE AVAILABILITY OF EFFECTIVE RELIEF FOR THAT
CLAIM AGAINST ANY OF THE PRESENT RESPONDENTS IS FAR FROM CERTAIN.  AS
IN ALEJANDRINO, THE BRIEFS AND MEMORANDA SUBMITTED BY THE PARTIES IN
THIS CASE CONTAIN VIRTUALLY NO DISCUSSION OF THIS QUESTION-- THE ONLY
QUESTION OF REMEDY REMAINING IN THE CASE.  IT APPEARS FROM RELEVANT
PROVISIONS OF LAW, HOWEVER, THAT THE SERGEANT AT ARMS OF THE HOUSE-- AN
OFFICIAL NEWLY ELECTED BY EACH CONGRESS /15/  -- IS RESPONSIBLE FOR THE
RETENTION AND DISBURSEMENT TO CONGRESSMEN OF THE FUNDS APPROPRIATED FOR
THEIR SALARIES.  THESE FUNDS ARE PAYABLE FROM THE UNITED STATES
TREASURY /16/  UPON REQUISITIONS PRESENTED BY THE SERGEANT AT ARMS, WHO
IS ENTRUSTED WITH KEEPING THE BOOKS AND ACCOUNTS "FOR THE COMPENSATION
AND MILEAGE OF MEMBERS."  /17/  A CONGRESSMAN WHO HAS PRESENTED HIS
CREDENTIALS AND TAKEN THE OATH OF OFFICE /18/ IS ENTITLED TO BE PAID
MONTHLY ON THE BASIS OF CERTIFICATES OF THE CLERK /19/  AND SPEAKER OF
THE HOUSE.  /20/  POWELL'S PRAYER FOR A MANDAMUS AND AN INJUNCTION
AGAINST THE SERGEANT AT ARMS IS PRESUMABLY BASED ON THIS STATUTORY
SCHEME. 

SEVERAL IMPORTANT QUESTIONS REMAIN UNANSWERED, HOWEVER, ON THIS
RECORD.  IS THE SERGEANT AT ARMS THE ONLY NECESSARY DEFENDANT?  IF SO,
THE CASE IS SURELY MOOT AS TO THE OTHER RESPONDENTS, INCLUDING THE
HOUSE MEMBERS, AND THEY SHOULD BE DISMISSED AS PARTIES ON THAT GROUND
RATHER THAN AFTER RESOLUTION OF DIFFICULT CONSTITUTIONAL QUESTIONS
UNDER THE SPEECH OR DEBATE CLAUSE.  BUT IT IS FAR FROM CLEAR THAT
POWELL HAS AN APPROPRIATE OR ADEQUATE REMEDY AGAINST THE REMAINING
RESPONDENTS.  FOR IF THE SPEAKER DOES NOT ISSUE THE REQUISITE
CERTIFICATES AND THE HOUSE DOES NOT RESCIND RESOLUTION NO. 278, CAN THE
HOUSE AGENTS BE ENJOINED TO ACT IN DIRECT CONTRAVENTION OF THE ORDERS
OF THEIR EMPLOYERS?  MOREOVER, THE OFFICE OF SERGEANT AT ARMS OF THE
90TH CONGRESS HAS NOW EXPIRED, AND THE PRESENT SERGEANT AT ARMS SERVES
THE 91ST CONGRESS.  IF HE WERE MADE A PARTY IN THAT CAPACITY, WOULD HE
HAVE THE AUTHORITY-- OR COULD THE 91ST CONGRESS CONFER THE AUTHORITY--
TO DISBURSE MON Y FOR A SALARY OWED TO A REPRESENTATIVE IN THE PREVIOUS
CONGRESS, PARTICULARLY ONE WHO NEVER TOOK THE OATH OF OFFICE? 
PRESUMABLY FUNDS HAVE NOT BEEN APPROPRIATED TO THE 91ST CONGRESS OR
REQUISITIONED BY ITS SERGEANT AT ARMS FOR THE PAYMENT OF SALARIES TO
MEMBERS OF PRIOR CONGRESSES.  NOR IS IT ASCERTAINABLE FROM THIS RECORD
WHETHER MONEY APPROPRIATED FOR POWELL'S SALARY BY THE 90TH CONGRESS, IF
ANY, REMAINS AT THE DISPOSAL OF THE CURRENT HOUSE AND ITS SERGEANT AT
ARMS.  /21/ 

THERE ARE, THEN SUBSTANTIAL QUESTIONS AS TO WHETHER, ON HIS SALARY
CLAIM, POWELL COULD OBTAIN RELIEF AGAINST ANY OR ALL OF THESE
RESPONDENTS.  ON THE OTHER HAND, IF HE WAS ENTITLED TO A SALARY AS A
MEMBER OF THE 90TH CONGRESS, HE HAS A CERTAIN AND COMPLETELY
SATISFACTORY REMEDY IN AN ACTION FOR A MONEY JUDGMENT AGAINST THE
UNITED STATES IN THE COURT OF CLAIMS.  /22/  WHILE THAT COURT COULD NOT
HAVE ORDERED POWELL SEATED OR ENTERED A DECLARATORY JUDGMENT ON THE
CONSTITUTIONALITY OF HIS EXCLUSION, /23/  IT IS NOT DISPUTED THAT THE
COURT OF CLAIMS COULD GRANT HIM A MONEY JUDGMENT FOR LOST SALARY ON THE
GROUND THAT HIS DISCHARGE FROM THE HOUSE VIOLATED THE CONSTITUTION.  I
WOULD REMIT CONGRESSMAN POWELL TO THAT REMEDY, AND NOT SIMPLY BECAUSE
OF THE SERIOUS DOUBTS ABOUT THE AVAILABILITY OF THE ONE HE NOW
PURSUES.  EVEN IF THE MANDATORY RELIEF SOUGHT BY POWELL IS APPROPRIATE
AND COULD BE EFFECTIVE, THE COURT SHOULD INSIST THAT THE SALARY CLAIM
BE LITIGATED IN A CONTEXT THAT WOULD CLEARLY OBVIATE THE NEED TO DECIDE
SOME OF THE CONSTITUTIONAL QUESTIONS WITH WHICH THE COURT GRAPPLES
TODAY, AND MIGHT AVOID THEM ALTOGETHER.  /24/  IN AN ACTION IN THE
COURT OF CLAIMS FOR A MONEY JUDGMENT AGAINST THE UNITED STATES, THERE
WOULD BE NO QUESTION CONCERNING THE IMPACT OF THE SPEECH OR DEBATE
CLAUSE ON A SUIT AGAINST MEMBERS OF THE HOUSE OF REPRESENTATIVES AND
THEIR AGENTS, AND QUESTIONS OF JURISDICTION AND JUSTICIABILITY WOULD,
IF RAISED AT ALL, BE IN A VASTLY DIFFERENT AND MORE CONVENTIONAL FORM. 

IN SHORT, DISMISSAL OF POWELL'S ACTION AGAINST THE LEGISLATIVE
BRANCH WOULD NOT IN THE SLIGHTEST PREJUDICE HIS MONEY CLAIM, /25/  AND
IT WOULD AVOID THE NECESSITY OF DECIDING CONSTITUTIONAL ISSUES WHICH,
IN THE PETITIONERS' WORDS, "TOUCH THE BEDROCK OF OUR POLITICAL SYSTEM
(AND) STRIKE AT THE VERY HEART OF REPRESENTATIVE GOVERNMENT."  IF THE
FUNDAMENTAL PRINCIPLES RESTRAINING COURTS FROM UNNECESSARILY OR
PREMATURELY REACHING OUT TO DECIDE GRAVE AND PERHAPS UNSETTLING
CONSTITUTIONAL QUESTIONS RETAIN ANY VITALITY, SEE ASHWANDER V. TVA, 297
U.S. 288, 346-348 (BRANDEIS, J., CONCURRING), SURELY THERE HAVE BEEN
FEW CASES MORE DEMANDING OF THEIR APPLICATION THAN THIS ONE.  AND THOSE
PRINCIPLES ARE ENTITLED TO SPECIAL RESPECT IN SUITS, LIKE THIS SUIT,
FOR DECLARATORY AND INJUNCTIVE RELIEF, WHICH IT IS WITHIN A COURT'S
BROAD DISCRETION TO WITHHOLD.  "WE HAVE CAUTIONED AGAINST DECLARATORY
JUDGMENTS ON ISSUES OF PUBLIC MOMENT, EVEN FALLING SHORT OF
CONSTITUTIONALITY, IN SPECULATIVE SITUATIONS."  PUBLIC AFFAIRS PRESS V.
RICKOVER, 369 U.S. 111, 112.  "ESPECIALLY WHERE GOVERNMENTAL ACTION IS
INVOLVED, COURTS SHOULD NOT INTERVENE UNLESS THE NEED FOR EQUITABLE
RELIEF IS CLEAR, NOT REMOTE OR SPECULATIVE."  ECCLES V. PEOPLES BANK OF
LAKEWOOD VILLAGE, 333 U.S. 426, 431. 

IF THIS LAWSUIT IS TO BE PROLONGED, I WOULD AT THE VERY LEAST NOT
REACH THE MERITS WITHOUT ASCERTAINING THAT A DECISION CAN LEAD TO SOME
EFFECTIVE RELIEF.  THE COURT'S REMAND FOR DETERMINATION OF THAT
QUESTION IMPLICITLY RECOGNIZES THAT THERE MAY BE NO REMAINING
CONTROVERSY BETWEEN PETITIONER POWELL AND ANY OF THESE RESPONDENTS
REDRESSABLE BY A COURT, AND THAT ITS OPINION TODAY MAY BE WHOLLY
ADVISORY.  BUT I SEE NO GOOD REASON FOR ANY COURT EVEN TO PASS ON THE
QUESTION OF THE AVAILABILITY OF RELIEF AGAINST ANY OF THESE
RESPONDENTS.  BECAUSE THE ESSENTIAL PURPOSE OF THE ACTION AGAINST THEM
IS NO LONGER ATTAINABLE AND POWELL HAS A FULLY ADEQUATE AND FAR MORE
APPROPRIATE REMEDY FOR HIS INCIDENTAL BACK-PAY CLAIM, I WOULD WITHHOLD
THE DISCRETIONARY RELIEF PRAYED FOR AND TERMINATE THIS LAWSUIT NOW. 
POWELL'S CLAIM FOR SALARY MAY NOT BE DEAD, BUT THIS CASE AGAINST ALL
THESE RESPONDENTS IS TRULY MOOT.  ACCORDINGLY, I WOULD VACATE THE
JUDGMENT BELOW AND REMAND THE CASE WITH DIRECTIONS TO DISMISS THE
COMPLAINT. 

/1/  SEE E.G., UNITED STATES V. CONCENTRATED PHOSPHATE EXPORT ASSN.,
393 U.S. 199, 202-204; CARROLL V. PRESIDENT AND COMMISSIONERS OF
PRINCESS ANNE, 393 U.S. 175, 178-179. 

/2/  SEE GOJACK V. UNITED STATES, 384 U.S. 702, 707, N. 4 ("NEITHER
THE HOUSE OF REPRESENTATIVES NOR ITS COMMITTEES ARE CONTINUING
BODIES"); MCGRAIN V. DAUGHERTY, 273 U.S. 135, 181.  FORTY-ONE OF THE
PRESENT MEMBERS OF THE HOUSE WERE NOT MEMBERS OF THE 90TH CONGRESS; AND
TWO OF THE NAMED DEFENDANTS IN THIS ACTION, MESSRS.  MOORE AND CURTIS,
ARE NO LONGER MEMBERS OF THE HOUSE OF REPRESENTATIVES.  MOREOVER, THE
OFFICER-EMPLOYEES OF THE HOUSE, SUCH AS THE SERGEANT AT ARMS, ARE RE
ELECTED BY EACH NEW CONGRESS.  SEE N. 15, INFRA. 

/3/  SEE ALSO UNITED STATES V. W. T. GRANT CO., 345 U.S. 629, 633;
UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 448.  THE COURT
HAS ONLY RECENTLY CONCLUDED THAT THERE WAS NO "CONTROVERSY" IN GOLDEN
V. ZWICKLER, 394 U.S. 103, BECAUSE OF "THE FACT THAT IT WAS MOST
UNLIKELY THAT THE CONGRESSMAN WOULD AGAIN BE A CANDIDATE FOR
CONGRESS."  ID., AT 109.  IT CAN HARDLY BE MAINTAINED THAT THE
LIKELIHOOD OF THE HOUSE OF REPRESENTATIVES' AGAIN EXCLUDING POWELL IS
ANY GREATER. 

/4/  SEE ALSO UNITED STATES V. W. T. GRANT CO., 345 U.S. 629, 632
633; LOCAL 74, UNITED BRO. OF CARPENTERS & JOINERS V. NLRB, 341 U.S.
707, 715; WALLING V. HELMERICH & PAYNE, INC., 323 U.S. 37, 43; HECHT
CO. V. BOWLES, 321 U.S. 321, 327; UNITED STATES V. TRANS-MISSOURI
FREIGHT ASSN., 166 U.S. 290, 307-310. 

/5/  WITH THE EXCEPTION OF GRAY, THE "CONTINUING CONTROVERSY" CASES
RELIED ON BY THE PETITIONERS WERE ACTIONS BY THE GOVERNMENT OR ITS
AGENCIES TO HALT ILLEGAL CONDUCT OF THE DEFENDANTS, AND, BY EXAMPLE, OF
OTHERS ENGAGED IN SIMILAR CONDUCT.  SEE CASES CITED, SUPRA, NN. 1, 3,
4.  THE PRINCIPLE THAT VOLUNTARY ABANDONMENT OF AN ILLEGAL PRACTICE
WILL NOT MAKE AN ACTION MOOT IS ESPECIALLY, IF NOT EXCLUSIVELY,
APPLICABLE TO SUCH PUBLIC LAW ENFORCEMENT SUITS. 

"PRIVATE PARTIES MAY SETTLE THEIR CONTROVERSIES AT ANY TIME, AND
RIGHTS WHICH A PLAINTIFF MAY HAVE HAD AT THE TIME OF THE COMMENCEMENT
OF THE ACTION MAY TERMINATE BEFORE JUDGMENT IS OBTAINED OR WHILE THE
CASE IS ON APPEAL, AND IN ANY SUCH CASE THE COURT, BEING INFORMED OF
THE FACTS, WILL PROCEED NO FURTHER IN THE ACTION.  HERE, HOWEVER, THERE
HAS BEEN NO EXTINGUISHMENT OF THE RIGHTS . . . OF THE PUBLIC, THE
ENFORCEMENT OF WHICH THE GOVERNMENT HAS ENDEAVORED TO PROCURE BY A
JUDGMENT OF A COURT . . . . THE DEFENDANTS CANNOT FORECLOSE THOSE
RIGHTS NOR PREVENT THE ASSERTION THEREOF BY THE GOVERNMENT AS A
SUBSTANTIAL TRUSTEE FOR THE PUBLIC UNDER THE ACT OF CONGRESS, BY
(VOLUNTARY CESSATION OF THE CHALLENGED CONDUCT)."  UNITED STATES V.
TRANS-MISSOURI FREIGHT ASSN., 166 U.S.,AT 309.  THE CONSIDERATIONS OF
PUBLIC ENFORCEMENT OF A STATUTORY OR REGULATORY SCHEME WHICH INHERE IN
THOSE CASES ARE NOT PRESENT IN THIS LITIGATION. 

/6/  CERTAINLY IN EVERY DECISION RELIED ON BY THE PETITIONERS THE
COURT DID NOT REJECT THE MOOTNESS ARGUMENT SOLELY ON THE GROUND THAT
THE ILLEGAL PRACTICE HAD BEEN VOLUNTARILY TERMINATED.  IN EACH IT
PROCEEDED TO DETERMINE THAT THERE WAS IN FACT A CONTINUING
CONTROVERSY. 

/7/  HOUSE RESOLUTION NO. 2 PROVIDED IN PERTINENT PART:     "(2)
THAT AS PUNISHMENT ADAM CLAYTON POWELL BE AND HE HEREBY IS FINED THE
SUM OF $25,000, SAID SUM TO BE PAID TO THE CLERK TO BE DISPOSED OF BY
HIM ACCORDING TO LAW.  THE SERGEANT AT ARMS OF THE HOUSE IS DIRECTED TO
DEDUCT $1,150 PER MONTH FROM THE SALARY OTHERWISE DUE THE SAID ADAM
CLAYTON POWELL, AND PAY THE SAME TO SAID CLERK UNTIL SAID $25,000 FINE
IS FULLY PAID. 

"(3) THAT AS FURTHER PUNISHMENT THE SENIORITY OF THE SAID ADAM CLAYTON
POWELL IN THE HOUSE OF REPRESENTATIVES COMMENCE AS OF THE DATE HE TAKES
THE OATH AS A MEMBER OF THE 91ST CONGRESS." 

THE PETITIONERS' ARGUMENT THAT THE CASE IS KEPT ALIVE BY POWELL'S
LOSS OF SENIORITY, SEE ANTE, AT 496, IS FOUNDED ON THE MISTAKEN
ASSUMPTION THAT THE LOSS OF SENIORITY IS ATTRIBUTABLE TO THE EXCLUSION
FROM THE 90TH CONGRESS AND THAT SENIORITY WOULD AUTOMATICALLY BE
RESTORED IF THAT EXCLUSION WERE DECLARED UNCONSTITUTIONAL.  BUT THE
FACT IS THAT POWELL WAS STRIPPED OF SENIORITY BY THE ACTION OF THE 91ST
CONGRESS, ACTION WHICH IS NOT INVOLVED IN THIS CASE AND WHICH WOULD NOT
BE AFFECTED BY JUDICIAL REVIEW OF THE EXCLUSION FROM THE 90TH
CONGRESS.  MOREOVER, EVEN IF THE CONDUCT OF THE 91ST CONGRESS WERE
CHALLENGED IN THIS CASE, THE COURT WOULD CLEARLY HAVE NO POWER
WHATSOEVER TO PASS UPON THE PROPRIETY OF SUCH INTERNAL AFFAIRS OF THE
HOUSE OF REPRESENTATIVES. 

/8/  ARTICLE I, SEC. 5, OF THE CONSTITUTION SPECIFICALLY EMPOWERS
EACH HOUSE TO "PUNISH ITS MEMBERS FOR DISORDERLY BEHAVIOUR." 

/9/  THE SALARY CLAIM IS PERSONAL TO CONGRESSMAN POWELL, AND THE
OTHER PETITIONERS THEREFORE CLEARLY HAVE NO FURTHER INTEREST IN THIS
LAWSUIT. 

/10/  THE PHILIPPINES SENATE WAS COMPOSED OF 24 SENATORS, 22 OF WHOM
WERE ELECTED, AND TWO OF WHOM WERE APPOINTED BY THE GOVERNOR GENERAL. 
ALEJANDRINO WAS ONE OF THE TWO APPOINTEES.  SEE 271 U.S.,AT 531-532. 

/11/  UNDER THE PHILIPPINE AUTONOMY ACT, 39 STAT. 545, THIS COURT
HAD JURISDICTION TO EXAMINE BY WRIT OF ERROR THE FINAL JUDGMENTS AND
DECREES OF THE SUPREME COURT OF THE PHILIPPINE ISLANDS IN CASES UNDER
THE CONSTITUTION OR STATUTES OF THE UNITED STATES.  A SUBSEQUENT
STATUTE SUBSTITUTED THE WRIT OF CERTIORARI.  39 STAT. 726. 

/12/  "SECTION 18 (OF THE AUTONOMY ACT) PROVIDES THAT THE SENATE AND
HOUSE RESPECTIVELY SHALL BE THE SOLE JUDGES OF THE ELECTIONS, RETURNS
AND QUALIFICATIONS OF THEIR ELECTIVE MEMBERS, AND EACH HOUSE MAY
DETERMINE THE RULES OF ITS PROCEEDINGS, PUNISH ITS MEMBERS FOR
DISORDERLY BEHAVIOR, AND WITH THE CONCURRENCE OF TWO-THIRDS EXPEL AN
ELECTIVE MEMBER.  THE SENATORS AND REPRESENTATIVES SHALL RECEIVE AN
ANNUAL COMPENSATION FOR THEIR SERVICES TO BE ASCERTAINED BY LAW AND
PAID OUT OF THE TREASURY OF THE PHILIPPINE ISLANDS.  SENATORS AND
REPRESENTATIVES SHALL IN ALL CASES, EXCEPT TREASON, FELONY AND BREACH
OF THE PEACE, BE PRIVILEGED FROM ARREST DURING THEIR ATTENDANCE AT THE
SESSION OF THEIR RESPECTIVE HOUSES AND IN GOING TO AND RETURNING FROM
THE SAME; AND FOR ANY SPEECH OR DEBATE IN EITHER HOUSE THEY SHALL NOT
BE QUESTIONED IN ANY OTHER PLACE."  271 U.S.,AT 532. 

/13/  THE PETITIONERS RELY ON THE FOLLOWING PASSAGE FROM BOND V.
FLOYD, 385 U.S. 116, 128, N. 4, AS DISPOSITIVE OF THEIR CONTENTION THAT
THE SALARY CLAIM PREVENTS THIS CASE FROM BEING MOOT: 

"A QUESTION WAS RAISED IN ORAL ARGUMENT AS TO WHETHER THIS CASE
MIGHT NOT BE MOOT SINCE THE SESSION OF THE HOUSE WHICH EXCLUDED BOND
WAS NO LONGER IN EXISTENCE.  THE STATE HAS NOT PRESSED THIS ARGUMENT,
AND IT COULD NOT DO SO, BECAUSE THE STATE HAS STIPULATED THAT IF BOND
SUCCEEDS ON THIS APPEAL HE WILL RECEIVE BACK SALARY FOR THE TERM FROM
WHICH HE WAS EXCLUDED."  I DO NOT BELIEVE THAT THIS OFFHAND DICTUM IN
BOND IS DETERMINATIVE OF THE ISSUE OF MOOTNESS IN THIS CASE.  IN THE
FIRST PLACE, AS THE COURT IN BOND NOTED, IT WAS NOT THERE CONTENDED BY
ANY PARTY THAT THE CASE WAS MOOT.  MOREOVER, CONTRARY TO THE
IMPLICATION OF THE STATEMENT, THE LEGISLATIVE TERM FROM WHICH BOND WAS
EXCLUDED HAD NOT ENDED AT THE TIME OF THE COURT'S DECISION.  (THE
COURT'S DECISION WAS ANNOUNCED ON DECEMBER 5, 1966; BOND'S TERM OF
OFFICE EXPIRED ON DECEMBER 31, 1966.)  IN ANY EVENT, HE HAD NOT BEEN
SEATED IN A SUBSEQUENT TERM, SO THE CONTINUING CONTROVERSY HAD NOT BEEN
RENDERED CLEARLY MOOT BY ANY ACTION OF THE GEORGIA HOUSE, AS IT HAS
HERE BY THE HOUSE OF REPRESENTATIVES OF THE 91ST CONGRESS.  NO ONE
SUGGESTED IN BOND THAT THE MONEY CLAIM WAS THE ONLY ISSUE LEFT IN THE
CASE.  FURTHERMORE, THE CONSIDERATIONS WHICH GOVERNED THE COURT'S
DECISION IN ALEJANDRINO WERE SIMPLY NOT PRESENT IN BOND.  BECAUSE OF
THE STATE'S STIPULATION, THERE WAS NO DOUBT, AS THERE IS HERE, SEE
INFRA, AT 570-571, THAT THE COURT'S DECISION WOULD LEAD TO EFFECTIVE
RELIEF WITH RESPECT TO BOND'S SALARY CLAIM.  AND FINALLY, THERE WAS NO
SUGGESTION THAT BOND HAD AN ALTERNATIVE REMEDY, AS POWELL WAS HERE, SEE
INFRA, AT 571-572, BY WHICH HE COULD OBTAIN FULL RELIEF WITHOUT
REQUIRING THE COURT TO DECIDE NOVEL AND DELICATE CONSTITUTIONAL
ISSUES. 

/14/  ALEJANDRINO WAS THE ONLY PETITIONER IN THE CASE, AND SINCE HE
WAS AN APPOINTED SENATOR, IT APPEARS THAT THERE WAS NO GROUP OF VOTERS
WHO REMAINED WITHOUT REPRESENTATION OF THEIR CHOICE IN THE SENATE
DURING HIS SUSPENSION. 

/15/  ACT OF OCT. 1, 1890, SEC. 6, 26 STAT. 646, 2 U.S.C. 83. 

/16/  U.S. CONST., ART. I, SEC. 6; 2 U.S.C. 47. 

/17/  2 U.S.C. 80, 78. 

/18/  2 U.S.C. 35. 

/19/  2 U.S.C. 34. 

/20/  2 U.S.C. 48. 

/21/  THE RESPONDENTS ALLEGE WITHOUT CONTRADICTION THAT THE SERGEANT
AT ARMS DOES NOT HAVE SUFFICIENT FUNDS TO PAY CONGRESSMAN POWELL'S BACK
SALARY CLAIMS.  SEPARATE APPROPRIATIONS FOR THE SALARIES OF CONGRESSMEN
ARE MADE IN EACH FISCAL YEAR, SEE, E.G., 80 STAT. 354, 81 STAT. 127, 82
STAT. 398, AND, ACCORDING TO THE RESPONDENTS, "IT IS THE CUSTOM OF THE
SERGEANT TO TURN BACK TO THE TREASURY ALL UNEXPENDED FUNDS AT THE END
OF EACH FISCAL YEAR."  THUS, THE ONLY FUNDS STILL HELD BY THE SERGEANT
ARE SAID TO BE THOSE APPROPRIATED FOR THE PRESENT FISCAL YEAR
COMMENCING JULY 1, 1968. 

/22/  "THE COURT OF CLAIMS SHALL HAVE JURISDICTION TO RENDER
JUDGMENT UPON ANY CLAIM AGAINST THE UNITED STATES FOUNDED EITHER UPON
THE CONSTITUTION, OR ANY ACT OF CONGRESS . . . ."  28 U.S.C. 1491.  THE
DISTRICT COURTS HAVE CONCURRENT JURISDICTION OVER SUCH CLAIMS ONLY IN
AMOUNTS LESS THAN $10,000.  28 U.S.C. 1346. 

/23/  UNITED STATES V. KING, ANTE, P. 1.  THE PETITIONERS SUGGEST
THAT THE INABILITY OF THE COURT OF CLAIMS TO GRANT SUCH RELIEF MIGHT
MAKE ANY REMEDY IN THAT COURT INADEQUATE.  BUT SINCE POWELL'S ONLY
REMAINING INTEREST IN THE CASE IS TO COLLECT HIS SALARY, A MONEY
JUDGMENT IN THE COURT OF CLAIMS WOULD BE JUST AS GOOD AS, AND PROBABLY
BETTER THAN, MANDATORY RELIEF AGAINST THE AGENTS OF THE HOUSE.  THE
PETITIONERS ALSO SUGGEST THAT THE COURT OF CLAIMS WOULD BE UNABLE TO
GRANT RELIEF BECAUSE OF THE PENDENCY OF POWELL'S CLAIM IN ANOTHER
COURT, 28 U.S.C. 1500, BUT THAT WOULD, OF COURSE, CONSTITUTE NO
OBSTACLE IF, AS I SUGGEST, THE COURT SHOULD ORDER THIS ACTION DISMISSED
ON GROUNDS OF MOOTNESS. 

/24/  IT IS POSSIBLE, FOR EXAMPLE, THAT THE UNITED STATES IN SUCH AN
ACTION WOULD NOT DENY POWELL'S ENTITLEMENT TO THE SALARY BUT WOULD SEEK
TO OFFSET THAT SUM AGAINST THE AMOUNTS WHICH POWELL WAS FOUND BY THE
HOUSE TO HAVE APPROPRIATED UNLAWFULLY FROM GOVERNMENT COFFERS TO HIS
OWN USE. 

/25/  RELYING ON BANK OF MARIN V. ENGLAND, 385 U.S. 99, 101, THE
PETITIONERS COMPLAIN THAT IT WOULD IMPOSE UNDUE HARDSHIP ON POWELL TO
FORCE HIM TO "START ALL OVER AGAIN" NOW THAT HE HAS COME THIS FAR IN
THE PRESENT SUIT.  IN VIEW OF THE COURT'S REMAND OF THIS CASE FOR
FURTHER PROCEEDINGS WITH RESPECT TO POWELL'S REMEDY, IT IS AT LEAST
DOUBTFUL THAT REMITTING HIM TO AN ACTION IN THE COURT OF CLAIMS WOULD
ENTAIL MUCH MORE COST AND DELAY THAN WILL BE INVOLVED IN THE PRESENT
CASE.  AND THE INCONVENIENCE TO LITIGANTS OF FURTHER DELAY OR
LITIGATION HAS NEVER BEEN DEEMED TO JUSTIFY DEPARTURE FROM THE SOUND
PRINCIPLE, ROOTED IN THE CONSTITUTION, THAT IMPORTANT ISSUES OF
CONSTITUTIONAL LAW SHOULD BE DECIDED ONLY IF NECESSARY AND IN CASES
PRESENTING CONCRETE AND LIVING CONTROVERSIES. 

ARTHUR KINOY AND HERBERT O. REID ARGUED THE CAUSE FOR PETITIONERS. 
WITH THEM ON THE BRIEF WERE ROBERT L. CARTER, HUBERT T. DELANY, WILLIAM
KUNSTLER, FRANK D. REEVES, AND HENRY R. WILLIAMS. 

BRUCE BROMLEY ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE JOHN R. HUPPER, THOMAS D. BARR, LLOYD N. CUTLER, JOHN H.
PICKERING, LOUIS F. OBERDORFER, AND MAX O. TRUITT, JR. 

BRIEFS OF AMICI CURIAE WERE FILED BY ERNEST ANGELL, OSMOND K.
FRAENKEL, EDWARD J. ENNIS, MELVIN L. WULF, ELEANOR HOLMES NORTON, AND
ALAN H. LEVINE FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL., AND BY
GEORGE MEADER. 
..END :


















NLRB V. GISSEL PACKING CO., 395 U.S. 575 


       NATIONAL LABOR RELATIONS BOARD V. GISSEL PACKING CO., INC.,

           ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT. 

        NO. 573.  ARGUED MARCH 26, 1969.-- DECIDED JUNE 16, 1969. 

           /1/ 


IN NOS. 573 AND 691, UNIONS WAGED ORGANIZATIONAL CAMPAIGNS, OBTAINED
AUTHORIZATION CARDS FROM A MAJORITY OF EMPLOYEES IN THE APPROPRIATE
BARGAINING UNITS, AND DEMANDED RECOGNITION BY THE EMPLOYERS.  THE
EMPLOYERS REFUSED TO BARGAIN, ON THE GROUND THAT THE CARDS WERE
INHERENTLY UNRELIABLE, AND CARRIED OUT VIGOROUS ANTIUNION CAMPAIGNS. 
IN ONE INSTANCE THE UNION DID NOT SEEK A REPRESENTATION ELECTION BUT
FILED UNFAIR LABOR PRACTICE CHARGES AGAINST THE EMPLOYER; IN A SECOND,
AN ELECTION SOUGHT BY THE UNION WAS NOT HELD BECAUSE OF UNFAIR LABOR
PRACTICE FILED BY THE UNION AS A RESULT OF THE EMPLOYER'S ANTIUNION
CAMPAIGN; AND IN THE THIRD, AN ELECTION PETITIONED BY THE UNION AND WON
BY THE EMPLOYER WAS SET ASIDE BY THE NATIONAL LABOR RELATIONS BOARD
(NLRB) BECAUSE OF THE EMPLOYER'S PRE-ELECTION UNFAIR LABOR PRACTICES. 
IN EACH INSTANCE THE NLRB FOUND THAT THE UNION HAD OBTAINED VALID
AUTHORIZATION CARDS FROM A MAJORITY OF THE EMPLOYEES IN THE BARGAINING
UNIT AND WAS THUS ENTITLED TO REPRESENT THE EMPLOYEES FOR BARGAINING
PURPOSES, AND THAT THE EMPLOYER'S REFUSAL TO BARGAIN, IN VIOLATION OF
SEC. 8(A)(5) OF THE NATIONAL LABOR RELATIONS ACT, WAS MOTIVATED, NOT BY
A "GOOD FAITH" DOUBT OF THE UNION'S MAJORITY STATUS, BUT BY A DESIRE TO
GAIN TIME TO DISSIPATE THAT STATUS.  THE NLRB ORDERED THE EMPLOYERS TO
STOP THEIR UNFAIR LABOR PRACTICES OFFER REINSTATEMENT AND BACK PAY TO
EMPLOYEES DISCRIMINATORILY DISCHARGED, AND TO BARGAIN WITH THE UNIONS
ON REQUEST.  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT UPHELD THE
NLRB'S FINDINGS AS TO VIOLATIONS OF SECS. 8(A)(1) AND (3) BUT DECLINED
TO ENFORCE THE ORDERS TO BARGAIN, HOLDING THAT THE TAFT-HARTLEY
AMENDMENTS TO THE ACT WITHDREW THE NLRB'S AUTHORITY TO ORDER AN
EMPLOYER TO BARGAIN UNDER SEC. 8(A)(5) ON THE BASIS OF CARDS, IN THE
ABSENCE OF NLRB CERTIFICATION, UNLESS THE EMPLOYER KNOWS, INDEPENDENTLY
OF THE CARDS, THAT THERE IS IN FACT NO REPRESENTATION DISPUTE.  THE
COURT HELD THAT THE CARDS WERE SO INHERENTLY UNRELIABLE THAT THEIR USE
GAVE THE EMPLOYER AN AUTOMATIC, GOOD FAITH CLAIM THAT SUCH A DISPUTE
EXISTED, FOR WHICH AN ELECTION WAS NECESSARY.  IN NO. 585, AFTER THE
UNION ANNOUNCED TO THE EMPLOYER THAT IT HELD AUTHORIZATION CARDS FROM A
MAJORITY OF THE BARGAINING UNIT, AND THE EMPLOYER CLAIMED IT HAD A GOOD
FAITH DOUBT OF MAJORITY STATUS, THE UNION PETITIONED FOR AN ELECTION. 
FROM THE TIME THE EMPLOYER FIRST LEARNED OF THE UNION'S DRIVE UNTIL THE
ELECTION, THE COMPANY'S PRESIDENT TALKED AND WROTE TO THE EMPLOYEES. 
THE NLRB STATED THAT THE COMMUNICATIONS "REASONABLY TENDED TO CONVEY .
. . THE BELIEF OR IMPRESSION THAT SELECTION OF THE UNION IN THE
FORTHCOMING ELECTION COULD LEAD (THE COMPANY) TO CLOSE ITS PLANT, OR TO
THE TRANSFER OF THE WEAVING PRODUCTION, WITH THE RESULTANT LOSS OF JOBS
TO THE WIRE WEAVERS," AND CONSTITUTED A VIOLATION OF SEC. 8(A)(1).  THE
NLRB SET ASIDE THE ELECTION BECAUSE THE EMPLOYER "INTERFERED WITH THE
EXERCISE OF A FREE AND UNTRAMMELED CHOICE IN THE ELECTION," FOUND THAT
THE UNION HAD A VALID CARD MAJORITY WHEN IT DEMANDED RECOGNITION AND
THAT THE EMPLOYER DECLINED RECOGNITION IN ORDER TO GAIN TIME TO
DISSIPATE THAT MAJORITY STATUS IN VIOLATION OF SEC. 8(A)(5).  THE
EMPLOYER WAS ORDERED TO BARGAIN ON REQUEST.  THE COURT OF APPEALS FOR
THE FIRST CIRCUIT SUSTAINED THE NLRB'S FINDINGS AND ENFORCED ITS
ORDER.  HELD: 

1.  TO OBTAIN RECOGNITION AS THE EXCLUSIVE BARGAINING REPRESENTATIVE
UNDER THE ACT, A UNION HAS NOT BEEN REQUIRED, PRIOR TO OR SINCE THE
TAFT-HARTLEY AMENDMENTS, TO OBTAIN CERTIFICATION AS A WINNER OF AN NLRB
ELECTION; IT CAN ESTABLISH MAJORITY STATUS BY POSSESSION OF CARDS
SIGNED BY A MAJORITY OF THE EMPLOYEES AUTHORIZING THE UNION TO
REPRESENT THEM FOR BARGAINING PURPOSES.  PP. 595-600. 

2.  AUTHORIZATION CARDS CAN ADEQUATELY REFLECT EMPLOYEE DESIRES FOR
REPRESENTATION AND THE NLRB'S RULES FOR CONTROLLING CARD SOLICITATION
ARE ADEQUATE SAFEGUARDS AGAINST UNION MISREPRESENTATION AND COERCION
WHERE THE CARDS ARE CLEAR AND UNAMBIGUOUS ON THEIR FACE.  PP. 601-610. 

(A) THE NLRB'S RULE SET FORTH IN CUMBERLAND SHOE CORP., 144 N.L.R.B.
1268, THAT AN UNAMBIGUOUS AUTHORIZATION CARD WILL BE COUNTED UNLESS IT
IS PROVED THAT THE EMPLOYEE WAS TOLD THAT THE CARD WAS TO BE USED
SOLELY TO OBTAIN AN ELECTION, SHOULD NOT BE APPLIED MECHANICALLY.  PP.
607-609. 

(B) AN EMPLOYER IS NOT OBLIGATED TO ACCEPT A CARD CHECK AS PROOF OF
MAJORITY STATUS UNDER THE NLRB'S CURRENT PRACTICE, AND HE IS NOT
REQUIRED TO JUSTIFY HIS INSISTENCE ON AN ELECTION BY MAKING HIS OWN
INVESTIGATION OF EMPLOYEE SENTIMENT AND SHOWING AFFIRMATIVE REASONS FOR
DOUBTING THE MAJORITY STATUS.  NOT EVERY EMPLOYER UNFAIR LABOR PRACTICE
WILL NECESSARILY SUPPORT A BARGAINING ORDER.  PP. 609-610. 

3.  THE ISSUANCE OF A BARGAINING ORDER IS AN APPROPRIATE REMEDY WHERE
AN EMPLOYER WHO HAS REJECTED A CARD MAJORITY HAS COMMITTED UNFAIR LABOR
PRACTICES WHICH HAVE MADE THE HOLDING OF A FAIR ELECTION UNLIKELY, OR
WHICH HAVE UNDERMINED A UNION'S MAJORITY, CAUSED AN ELECTION TO BE SET
ASIDE, AND MADE THE HOLDING OF A FAIR RERUN ELECTION UNLIKELY.  PP. 610
616. 

(A) IN FASHIONING A REMEDY THE NLRB CAN CONSIDER THE EXTENSIVENESS
OF AN EMPLOYER'S UNFAIR PRACTICES IN TERMS OF THEIR PAST EFFECT ON
ELECTION CONDITIONS AND THE LIKELIHOOD OF THEIR RECURRENCE IN THE
FUTURE, AND IF IT FINDS THAT THE POSSIBILITY OF ERASING THE EFFECTS OF
PAST PRACTICES AND OF ENSURING A FAIR ELECTION (OR A FAIR RERUN) BY THE
USE OF TRADITIONAL REMEDIES IS SLIGHT AND THAT EMPLOYEE SENTIMENT ONCE
EXPRESSED THROUGH CARDS WOULD BE BETTER PROTECTED BY A BARGAINING
ORDER, SUCH ORDER SHOULD ISSUE.  PP. 614-615. 

(B) BECAUSE THE NLRB'S FINDINGS IN NOS. 573 AND 691 WERE BASED ON
ITS FORMER PRACTICE OF PHRASING ITS FINDINGS IN TERMS OF AN EMPLOYER'S
GOOD OR BAD FAITH DOUBTS OF A UNION'S MAJORITY STATUS, THESE CASES ARE
REMANDED FOR PROPER FINDINGS.  PP. 615-616. 

4.  AN EMPLOYER'S FREE SPEECH RIGHT TO COMMUNICATE WITH HIS
EMPLOYEES IS FIRMLY ESTABLISHED AND CANNOT BE INFRINGED BY A UNION OR
BY THE NLRB, AND SEC. 8(C) MERELY IMPLEMENTS THE FIRST AMENDMENT BY
REQUIRING THAT THE EXPRESSION OF "ANY VIEWS, ARGUMENT OR OPINION" SHALL
NOT BE "EVIDENCE OF AN UNFAIR LABOR PRACTICE," SO LONG AS SUCH
EXPRESSION CONTAINS "NO THREAT OF REPRISAL OR FORCE OR PROMISE OF
BENEFIT" IN VIOLATION OF SEC. 8(A)(1).  PP. 616-620. 

(A) AN ASSESSMENT OF THE PRECISE SCOPE OF EMPLOYER EXPRESSION MUST
BE MADE IN THE CONTEXT OF ITS LABOR RELATIONS SETTING, AND AN
EMPLOYER'S RIGHTS CANNOT OUTWEIGH THE EQUAL RIGHTS OF THE EMPLOYEES TO
ASSOCIATE FREELY, AS THOSE RIGHTS ARE EMBODIED AND PROTECTED IN THE
ACT.  PP. 617-618. 

(B) AN EMPLOYER MAY COMMUNICATE TO HIS EMPLOYEES ANY OF HIS GENERAL
VIEWS ON UNIONISM AND HIS SPECIFIC VIEWS ABOUT A PARTICULAR UNION, AS
LONG AS THERE IS NO "THREAT OF REPRISAL OR FORCE OR PROMISE OF
BENEFIT."  HE MAY PREDICT THE PRECISE EFFECTS HE BELIEVES UNIONIZATION
WILL HAVE ON HIS COMPANY, IF THE PREDICTION IS BASED ON OBJECTIVE FACT
TO CONVEY HIS BELIEF AS TO DEMONSTRABLY PROBABLE CONSEQUENCES BEYOND
HIS CONTROL OR TO CONVEY A MANAGEMENT DECISION ALREADY ARRIVED AT TO
CLOSE THE PLANT IN CASE OF UNIONIZATION.  PP. 618-619. 

(C) IN NO. 585 THE NLRB CORRECTLY FOUND THAT THE COMMUNICATIONS WERE
CAST AS A THREAT OF RETALIATORY ACTION AND NOT AS A PREDICTION OF
"DEMONSTRABLE ECONOMIC CONSEQUENCES."  P. 619. 

NO. 585, 397 F.2D 157, AFFIRMED; NOS. 573 AND 691, 398 F.2D 336,
337, AND 339, REVERSED AND REMANDED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE THE EXTENT OF AN EMPLOYER'S DUTY UNDER THE
NATIONAL LABOR RELATIONS ACT TO RECOGNIZE A UNION THAT BASES ITS CLAIM
TO REPRESENTATIVE STATUS SOLELY ON THE POSSESSION OF UNION
AUTHORIZATION CARDS, AND THE STEPS AN EMPLOYER MAY TAKE, PARTICULARLY
WITH REGARD TO THE SCOPE AND CONTENT OF STATEMENT HE MAY MAKE, IN
LEGITIMATELY RESISTING SUCH CARD-BASED RECOGNITION.  THE SPECIFIC
QUESTIONS FACING US HERE ARE WHETHER THE DUTY TO BARGAIN CAN ARISE
WITHOUT A BOARD ELECTION UNDER THE ACT; WHETHER UNION AUTHORIZATION
CARDS, IF OBTAINED FROM A MAJORITY OF EMPLOYEES WITHOUT
MISREPRESENTATION OR COERCION, ARE RELIABLE ENOUGH GENERALLY TO PROVIDE
A VALID, ALTERNATE ROUTE TO MAJORITY STATUS; WHETHER A BARGAINING ORDER
IS AN APPROPRIATE AND AUTHORIZED REMEDY WHERE AN EMPLOYER REJECTS A
CARD MAJORITY WHILE AT THE SAME TIME COMMITTING UNFAIR LABOR PRACTICES
THAT TEND TO UNDERMINE THE UNION'S MAJORITY AND MAKE A FAIR ELECTION AN
UNLIKELY POSSIBILITY; AND WHETHER CERTAIN SPECIFIC STATEMENTS MADE BY
AN EMPLOYER TO HIS EMPLOYEES CONSTITUTED SUCH AN ELECTION-VOIDING
UNFAIR LABOR PRACTICE AND THUS FELL OUTSIDE THE PROTECTION OF THE FIRST
AMENDMENT AND SEC. 8(C) OF THE ACT, 49 STAT. 452, AS AMENDED, 29 U.S.C.
158(C).  FOR REASONS GIVEN BELOW, WE ANSWER EACH OF THESE QUESTIONS IN
THE AFFIRMATIVE. 

   I. 

OF THE FOUR CASES BEFORE US, THREE-- GISSEL PACKING CO., HECK'S
INC., AND GENERAL STEEL PRODUCTS, INC.-- WERE CONSOLIDATED FOLLOWING
SEPARATE DECISIONS IN THE COURT OF APPEALS FOR THE FOURTH CIRCUIT AND
BROUGHT HERE BY THE NATIONAL LABOR RELATIONS BOARD IN NO. 573.  FOOD
STORE EMPLOYEES UNION, LOCAL NO. 347, THE PETITIONING UNION IN GISSEL,
BROUGHT THAT CASE HERE IN A SEPARATE PETITION IN NO. 691.  ALL THREE
CASES PRESENT THE SAME LEGAL ISSUES IN SIMILAR, UNCOMPLICATED FACTUAL
SETTINGS THAT CAN BE BRIEFLY DESCRIBED TOGETHER.  THE FOURTH CASE, NO.
585 (SINCLAIR COMPANY), BROUGHT HERE FROM THE COURT OF APPEALS FOR THE
FIRST CIRCUIT AND ARGUED SEPARATELY, PRESENTS MANY OF THE SAME
QUESTIONS AND WILL THUS BE DISPOSED OF IN THIS OPINION; BUT BECAUSE THE
VALIDITY OF SOME OF THE BOARD'S FACTUAL FINDINGS ARE UNDER ATTACK ON
FIRST AMENDMENT GROUNDS, DETAILED ATTENTION MUST BE PAID TO THE FACTUAL
SETTING OF THAT CASE. 

  NOS. 573 AND 691. 

IN EACH OF THE CASES FROM THE FOURTH CIRCUIT, THE COURSE OF ACTION
FOLLOWED BY THE UNION AND THE EMPLOYER AND THE BOARD'S RESPONSE WERE
SIMILAR.  IN EACH CASE, THE UNION WAGED AN ORGANIZATIONAL CAMPAIGN,
OBTAINED AUTHORIZATION CARDS FROM A MAJORITY OF EMPLOYEES IN THE
APPROPRIATE BARGAINING UNIT, AND THEN, ON THE BASIS OF THE CARDS,
DEMANDED RECOGNITION BY THE EMPLOYER.  ALL THREE EMPLOYERS REFUSED TO
BARGAIN ON THE GROUND THAT AUTHORIZATION CARDS WERE INHERENTLY
UNRELIABLE INDICATORS OF EMPLOYEE DESIRES; AND THEY EITHER EMBARKED ON,
OR CONTINUED, VIGOROUS ANTIUNION CAMPAIGNS THAT GAVE RISE TO NUMEROUS
UNFAIR LABOR PRACTICE CHARGES.  IN GISSEL, WHERE THE EMPLOYER'S
CAMPAIGN BEGAN ALMOST AT THE OUTSET OF THE UNION'S ORGANIZATIONAL
DRIVE, THE UNION (PETITIONER IN NO. 691), DID NOT SEEK AN ELECTION, BUT
INSTEAD FILED THREE UNFAIR LABOR PRACTICE CHARGES AGAINST THE EMPLOYER,
FOR REFUSING TO BARGAIN IN VIOLATION OF SEC. 8(A)(5), FOR COERCION AND
INTIMIDATION OF EMPLOYEES IN VIOLATION OF SEC. 8(A)(1), AND FOR
DISCHARGE OF UNION ADHERENTS IN VIOLATION OF SEC. 8(A)(3).  /1A/  IN
HECK'S AN ELECTION SOUGHT BY THE UNION WAS NEVER HELD BECAUSE OF NEARLY
IDENTICAL UNFAIR LABOR PRACTICE CHARGES LATER FILED BY THE UNION AS A
RESULT OF THE EMPLOYER'S ANTIUNION CAMPAIGN, INITIATED AFTER THE
UNION'S RECOGNITION DEMAND.  /2/  AND IN GENERAL STEEL, AN ELECTION
PETITIONED FOR BY THE UNION AND WON BY THE EMPLOYER WAS SET ASIDE BY
THE BOARD BECAUSE OF THE UNFAIR LABOR PRACTICES COMMITTED BY THE
EMPLOYER IN THE PRE-ELECTION PERIOD.  /3/ 

IN EACH CASE, THE BOARD'S PRIMARY RESPONSE WAS AN ORDER TO BARGAIN
DIRECTED AT THE EMPLOYERS, DESPITE THE ABSENCE OF AN ELECTION IN GISSEL
AND HECK'S AND THE EMPLOYER'S VICTORY IN GENERAL STEEL.  MORE
SPECIFICALLY, THE BOARD FOUND IN EACH CASE (1) THAT THE UNION HAD
OBTAINED VALID AUTHORIZATION CARDS /4/  FROM A MAJORITY OF THE
EMPLOYEES IN THE BARGAINING UNIT AND WAS THUS ENTITLED TO REPRESENT THE
EMPLOYEES FOR COLLECTIVE BARGAINING PURPOSES; AND (2) THAT THE
EMPLOYER'S REFUSAL TO BARGAIN WITH THE UNION IN VIOLATION OF SEC.
8(A)(5) WAS MOTIVATED, NOT BY A "GOOD FAITH" DOUBT OF THE UNION'S
MAJORITY STATUS, BUT BY A DESIRE TO GAIN TIME TO DISSIPATE THAT
STATUS.  THE BOARD BASED ITS CONCLUSION AS TO THE LACK OF GOOD FAITH
DOUBT ON THE FACT THAT THE EMPLOYERS HAD COMMITTED SUBSTANTIAL UNFAIR
LABOR PRACTICES DURING THEIR ANTIUNION CAMPAIGN EFFORTS TO RESIST
RECOGNITION.  THUS, THE BOARD FOUND THAT ALL THREE EMPLOYERS HAD
ENGAGED IN RESTRAINT AND COERCION OF EMPLOYEES IN VIOLATION OF SEC.
8(A)(1)-- IN GISSEL, FOR COERCIVELY INTERROGATING EMPLOYEES ABOUT UNION
ACTIVITIES, THREATENING THEM WITH DISCHARGE, AND PROMISING THEM
BENEFITS; IN HECK'S FOR COERCIVELY INTERROGATING EMPLOYEES, THREATENING
REPRISALS, CREATING THE APPEARANCE OF SURVEILLANCE, AND OFFERING
BENEFITS FOR OPPOSING THE UNION; AND IN GENERAL STEEL, FOR COERCIVE
INTERROGATION AND THREATS OF REPRISALS, INCLUDING DISCHARGE.  IN
ADDITION, THE BOARD FOUND THAT THE EMPLOYERS IN GISSEL AND HECK'S HAD
WRONGFULLY DISCHARGED EMPLOYEES FOR ENGAGING IN UNION ACTIVITIES IN
VIOLATION OF SEC. 8(A)(3).  AND, BECAUSE THE EMPLOYERS HAD REJECTED THE
CARD-BASED BARGAINING DEMAND IN BAD FAITH, THE BOARD FOUND THAT ALL
THREE HAD REFUSED TO RECOGNIZE THE UNIONS IN VIOLATION OF SEC.
8(A)(5). 

ONLY IN GENERAL STEEL WAS THERE ANY OBJECTION BY AN EMPLOYER TO THE
VALIDITY OF THE CARDS AND THE MANNER IN WHICH THEY HAD BEEN SOLICITED,
AND THE DOUBT RAISED BY THE EVIDENCE WAS RESOLVED IN THE FOLLOWING
MANNER.  THE CUSTOMARY APPROACH OF THE BOARD IN DEALING WITH
ALLEGATIONS OF MISREPRESENTATION BY THE UNION AND MISUNDERSTANDING BY
THE EMPLOYEES OF THE PURPOSE FOR WHICH THE CARDS WERE BEING SOLICITED
HAS BEEN SET OUT IN CUMBERLAND SHOE CORP., 144 N.L.R.B. 1268 (1963) AND
REAFFIRMED IN LEVI STRAUSS & CO., 172 N.L.R.B.NO. 57, 68 L.R.R.M. 1338
(1968).  UNDER THE CUMBERLAND SHOE DOCTRINE, IF THE CARD ITSELF IS
UNAMBIGUOUS (I.E., STATES ON ITS FACE THAT THE SIGNER AUTHORIZES THE
UNION TO REPRESENT THE EMPLOYEE FOR COLLECTIVE BARGAINING PURPOSES AND
NOT TO SEEK AN ELECTION), IT WILL BE COUNTED UNLESS IT IS PROVED THAT
THE EMPLOYEE WAS TOLD THAT THE CARD WAS TO BE USED SOLELY FOR THE
PURPOSE OF OBTAINING AN ELECTION.  IN GENERAL STEEL, THE TRIAL EXAMINER
CONSIDERED THE ALLEGATIONS OF MISREPRESENTATION AT LENGTH AND, APPLYING
THE BOARD'S CUSTOMARY ANALYSIS, REJECTED THE CLAIMS WITH FINDINGS THAT
WERE ADOPTED BY THE BOARD AND ARE REPRINTED IN THE MARGIN.  /5/ 

CONSEQUENTLY, THE BOARD ORDERED THE COMPANIES TO CEASE AND DESIST
FROM THEIR UNFAIR LABOR PRACTICES, TO OFFER REINSTATEMENT AND BACK PAY
TO THE EMPLOYEES WHO HAD BEEN DISCRIMINATORILY DISCHARGED, TO BARGAIN
WITH THE UNIONS ON REQUEST, AND TO POST THE APPROPRIATE NOTICES. 

ON APPEAL, THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, IN PER
CURIAM OPINIONS IN EACH OF THE THREE CASES (398 F.2D 336, 337, 339),
SUSTAINED THE BOARD'S FINDINGS AS TO THE SECS. 8(A)(1) AND (3)
VIOLATIONS, BUT REJECTED THE BOARD'S FINDINGS THAT THE EMPLOYERS'
REFUSAL TO BARGAIN VIOLATED SEC. 8(A)(5) AND DECLINED TO ENFORCE THOSE
PORTIONS OF THE BOARD'S ORDERS DIRECTING THE RESPONDENT COMPANIES TO
BARGAIN IN GOOD FAITH.  THE COURT BASED ITS SEC. 8(A)(5) RULINGS ON ITS
1967 DECISIONS RAISING THE SAME FUNDAMENTAL ISSUES, CRAWFORD MFG. CO.
V. NLRB, 386 F.2D 367, CERT. DENIED, 390 U.S. 1028 (1968); NLRB V.
LOGAN PACKING CO., 386 F.2D 562; NLRB V. SEHON STEVENSON & CO., INC.,
386 F.2D 551.  THE COURT IN THOSE CASES HELD THAT THE 1947 TAFT-HARTLEY
AMENDMENTS TO THE ACT, WHICH PERMITTED THE BOARD TO RESOLVE
REPRESENTATION DISPUTES BY CERTIFICATION UNDER SEC. 9(C) ONLY BY SECRET
BALLOT ELECTION, WITHDREW FROM THE BOARD THE AUTHORITY TO ORDER AN
EMPLOYER TO BARGAIN UNDER SEC. 8(A)(5) ON THE BASIS OF CARDS, IN THE
ABSENCE OF NLRB CERTIFICATION, UNLESS THE EMPLOYER KNOWS INDEPENDENTLY
OF THE CARDS THAT THERE IS IN FACT NO REPRESENTATION DISPUTE.  THE
COURT HELD THAT THE CARDS THEMSELVES WERE SO INHERENTLY UNRELIABLE THAT
THEIR USE GAVE AN EMPLOYER VIRTUALLY AN AUTOMATIC, GOOD FAITH CLAIM
THAT SUCH A DISPUTE EXISTED, FOR WHICH A SECRET ELECTION WAS
NECESSARY.  THUS, THESE RULINGS ESTABLISHED THAT A COMPANY COULD NOT BE
ORDERED TO BARGAIN UNLESS (1) THERE WAS NO QUESTION ABOUT A UNION'S
MAJORITY STATUS (EITHER BECAUSE THE EMPLOYER AGREED THE CARDS WERE
VALID OR HAD CONDUCTED HIS OWN POLL SO INDICATING), OR (2) THE
EMPLOYER'S SECS. 8(A)(1) AND (3) UNFAIR LABOR PRACTICES COMMITTED
DURING THE REPRESENTATION CAMPAIGN WERE SO EXTENSIVE AND PERVASIVE THAT
A BARGAINING ORDER WAS THE ONLY AVAILABLE BOARD REMEDY IRRESPECTIVE OF
A CARD MAJORITY. 

THUS BASED ON THE EARLIER DECISIONS, THE COURT'S REASONING IN THESE
CASES WAS BRIEF, AS INDICATED BY THE REPRESENTATIVE HOLDING IN HECK'S: 

     "WE HAVE RECENTLY DISCUSSED THE UNRELIABILITY OF THE CARDS, IN

THE USUAL CASE, IN DETERMINING WHETHER OR NOT A UNION HAS

ATTAINED A MAJORITY STATUS AND HAVE CONCLUDED THAT AN EMPLOYER IS

  JUSTIFIED IN ENTERTAINING A GOOD FAITH DOUBT OF THE UNION'S

  CLAIMS WHEN CONFRONTED WITH A DEMAND FOR RECOGNITION BASED SOLELY

  UPON UNION AUTHORIZATION CARDS.  WE HAVE ALSO NOTED THAT THE

  NATIONAL LABOR RELATIONS ACT AFTER THE TAFT-HARTLEY AMENDMENTS

  PROVIDES FOR AN ELECTION AS THE SOLE BASIS OF A CERTIFICATION AND

  RESTRICTS THE BOARD TO THE USE OF SECRET BALLOTS FOR THE

  RESOLUTION OF REPRESENTATION QUESTIONS.  THIS IS NOT ONE OF THOSE

  EXTRAORDINARY CASES IN WHICH A BARGAINING ORDER MIGHT BE AN

APPROPRIATE REMEDY FOR PERVASIVE VIOLATIONS OF SEC. 8(A)(1).  IT

  IS CONTROLLED BY OUR RECENT DECISIONS AND THEIR REASONING . . . .

  THERE WAS NOT SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDINGS OF THE

  BOARD THAT HECK'S, INC. HAD NO GOOD FAITH DOUBT OF THE UNIONS'

  CLAIMS OF MAJORITIES."  398 F.2D,AT 338-339. 

        NO. 585. 

IN NO. 585, THE FACTUAL PATTERN WAS QUITE SIMILAR.  THE PETITIONER,
A PRODUCER OF MILL ROLLS, WIRE, AND RELATED PRODUCTS AT TWO PLANTS IN
HOLYOKE, MASSACHUSETTS, WAS SHUT DOWN FOR SOME THREE MONTHS IN 1952 AS
THE RESULT OF A STRIKE OVER CONTRACT NEGOTIATIONS WITH THE AMERICAN
WIRE WEAVERS PROTECTIVE ASSOCIATION, THE REPRESENTATIVE OF PETITIONER'S
JOURNEYMEN AND APPRENTICE WIRE WEAVERS FROM 1933 TO 1952.  THE COMPANY
SUBSEQUENTLY REOPENED WITHOUT A UNION CONTRACT, AND ITS EMPLOYEES
REMAINED UNREPRESENTED THROUGH 1964, WHEN THE COMPANY WAS ACQUIRED BY
AN OHIO CORPORATION, WITH THE COMPANY'S FORMER PRESIDENT CONTINUING AS
HEAD OF THE HOLYOKE, MASSACHUSETTS, DIVISION.  IN JULY 1965, THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION NO. 404, BEGAN AN
ORGANIZING CAMPAIGN AMONG PETITIONER'S HOLYOKE EMPLOYEES AND BY THE END
OF THE SUMMER HAD OBTAINED AUTHORIZATION CARDS FROM 11 OF THE COMPANY'S
14 JOURNEYMEN WIRE WEAVERS CHOOSING THE UNION AS THEIR BARGAINING
AGENT.  ON SEPTEMBER 20, THE UNION NOTIFIED PETITIONER THAT IT
REPRESENTED A MAJORITY OF ITS WIRE WEAVERS, REQUESTED THAT THE COMPANY
BARGAIN WITH IT, AND OFFERED TO SUBMIT THE SIGNED CARDS TO A NEUTRAL
THIRD PARTY FOR AUTHENTICATION.  AFTER PETITIONER'S PRESIDENT DECLINED
THE UNION'S REQUEST A WEEK LATER, CLAIMING, INTER ALIA, THAT HE HAD A
GOOD FAITH DOUBT OF MAJORITY STATUS BECAUSE OF THE CARDS' INHERENT
UNRELIABILITY, THE UNION PETITIONED, ON NOVEMBER 8, FOR AN ELECTION
THAT WAS ULTIMATELY SET FOR DECEMBER 9. 

WHEN PETITIONER'S PRESIDENT FIRST LEARNED OF THE UNION'S DRIVE IN
JULY HE TALKED WITH ALL OF HIS EMPLOYEES IN AN EFFORT TO DISSUADE THEM
FROM JOINING A UNION.  HE PARTICULARLY EMPHASIZED THE RESULTS OF THE
LONG 1952 STRIKE, WHICH HE CLAIMED "ALMOST PUT OUR COMPANY OUT OF
BUSINESS," AND EXPRESSED WORRY THAT THE EMPLOYEES WERE FORGETTING THE
"LESSONS OF THE PAST."  HE EMPHASIZED, SECONDLY, THAT THE COMPANY WAS
STILL ON "THIN ICE"  FINANCIALLY THAT THE UNION'S "ONLY WEAPON IS TO
STRIKE," AND THAT A STRIKE "COULD LEAD TO THE CLOSING OF THE PLANT,"
SINCE THE PARENT COMPANY HAD AMPLE MANUFACTURING FACILITIES ELSEWHERE. 
HE NOTED, THIRDLY, THAT BECAUSE OF THEIR AGE AND THE LIMITED USEFULNESS
OF THEIR SKILLS OUTSIDE THEIR CRAFT, THE EMPLOYEES MIGHT NOT BE ABLE TO
FIND RE-EMPLOYMENT IF THEY LOST THEIR JOBS AS A RESULT OF A STRIKE. 
FINALLY, HE WARNED THOSE WHO DID NOT BELIEVE THAT THE PLANT COULD GO
OUT OF BUSINESS TO "LOOK AROUND HOLYOKE AND SEE A LOT OF THEM OUT OF
BUSINESS."  THE PRESIDENT SENT LETTERS TO THE SAME EFFECT TO THE
EMPLOYEES IN EARLY NOVEMBER, EMPHASIZING THAT THE PARENT COMPANY HAD NO
REASON TO STAY IN MASSACHUSETTS IF PROFITS WENT DOWN. 

DURING THE TWO OR THREE WEEKS IMMEDIATELY PRIOR TO THE ELECTION ON
DECEMBER 9, THE PRESIDENT SENT THE EMPLOYEES A PAMPHLET CAPTIONED:  "DO
YOU WANT ANOTHER 13-WEEK STRIKE?"  STATING, INTER ALIA, THAT:  "WE HAVE
NO DOUBT THAT THE TEAMSTERS UNION CAN AGAIN CLOSE THE WIRE WEAVING
DEPARTMENT AND THE ENTIRE PLANT BY A STRIKE.  WE HAVE NO HOPES THAT THE
TEAMSTERS UNION BOSSES WILL NOT CALL A STRIKE . . . . THE TEAMSTERS
UNION IS A STRIKE HAPPY OUTFIT."  SIMILAR COMMUNICATIONS FOLLOWED IN
LATE NOVEMBER, INCLUDING ONE STRESSING THE TEAMSTERS'"HOODLUM
CONTROL."  TWO DAYS BEFORE THE ELECTION, THE COMPANY SENT OUT ANOTHER
PAMPHLET THAT WAS ENTITLED:  "LET'S LOOK AT THE RECORD," AND THAT
PURPORTED TO BE AN OBITUARY OF COMPANIES IN THE HOLYOKE-SPRINGIFELD,
MASSACHUSETTS, AREA THAT HAD ALLEGEDLY GONE OUT OF BUSINESS BECAUSE OF
UNION DEMANDS, ELIMINATING SOME 3,500 JOBS; THE FIRST PAGE CARRIED A
LARGE CARTOON SHOWING THE PREPARATION OF A GRAVE FOR THE SINCLAIR
COMPANY AND OTHER HEADSTONES CONTAINING THE NAMES OF OTHER PLANTS
ALLEGEDLY VICTIMIZED BY THE UNIONS.  FINALLY, ON THE DAY BEFORE THE
ELECTION, THE PRESIDENT MADE ANOTHER PERSONAL APPEAL TO HIS EMPLOYEES
TO REJECT THE UNION.  HE REPEATED THAT THE COMPANY'S FINANCIAL
CONDITION WAS PRECARIOUS; THAT A POSSIBLE STRIKE WOULD JEOPARDIZE THE
CONTINUED OPERATION OF THE PLANT; AND THAT AGE AND LACK OF EDUCATION
WOULD MAKE RE-EMPLOYMENT DIFFICULT.  THE UNION LOST THE ELECTION 7-6,
AND THEN FILED BOTH OBJECTIONS TO THE ELECTION AND UNFAIR LABOR
PRACTICE CHARGES WHICH WERE CONSOLIDATED FOR HEARING BEFORE THE TRIAL
EXAMINER. 

THE BOARD AGREED WITH THE TRIAL EXAMINER THAT THE PRESIDENT'S
COMMUNICATIONS WITH HIS EMPLOYEES, WHEN CONSIDERED AS A WHOLE,
"REASONABLY TENDED TO CONVEY TO THE EMPLOYEES THE BELIEF OR IMPRESSION
THAT SELECTION OF THE UNION IN THE FORTHCOMING ELECTION COULD LEAD (THE
COMPANY) TO CLOSE ITS PLANT, OR TO THE TRANSFER OF THE WEAVING
PRODUCTION, WITH THE RESULTANT LOSS OF JOBS TO THE WIRE WEAVERS." 
THUS, THE BOARD FOUND THAT UNDER THE "TOTALITY OF THE CIRCUMSTANCES"
PETITIONER'S ACTIVITIES CONSTITUTED A VIOLATION OF SEC. 8(A)(1) OF THE
ACT.  THE BOARD FURTHER AGREED WITH THE TRIAL EXAMINER THAT
PETITIONER'S ACTIVITIES, BECAUSE THEY "ALSO INTERFERED WITH THE
EXERCISE OF A FREE AND UNTRAMMELED CHOICE IN THE ELECTION," AND "TENDED
TO FORECLOSE THE POSSIBILITY" OF HOLDING A FAIR ELECTION, REQUIRED THAT
THE ELECTION BE SET ASIDE.  THE BOARD ALSO FOUND THAT THE UNION HAD A
VALID CARD MAJORITY (THE UNAMBIGUOUS CARDS, SEE N. 4, SUPRA, WENT
UNCHALLENGED) WHEN IT DEMANDED RECOGNITION INITIALLY AND THAT THE
COMPANY DECLINED RECOGNITION, NOT BECAUSE OF A GOOD FAITH DOUBT AS TO
THE MAJORITY STATUS, BUT, AS THE SEC. 8(A)(1) VIOLATIONS INDICATED, IN
ORDER TO GAIN TIME TO DISSIPATE THAT STATUS-- IN VIOLATION OF SEC.
8(A)(5).  CONSEQUENTLY, THE BOARD SET THE ELECTION ASIDE, ENTERED A
CEASE-AND-DESIST ORDER, AND ORDERED THE COMPANY TO BARGAIN ON REQUEST. 

ON APPEAL, THE COURT OF APPEALS FOR THE FIRST CIRCUIT SUSTAINED THE
BOARD'S FINDINGS AND CONCLUSIONS AND ENFORCED ITS ORDER IN FULL.  397
F.2D 157.  THE COURT REJECTED THE COMPANY'S PROPOSITION THAT THE
INHERENT UNRELIABILITY OF AUTHORIZATION CARDS ENTITLED AN EMPLOYER
AUTOMATICALLY TO INSIST ON AN ELECTION, NOTING THAT THE REPRESENTATIVE
STATUS OF A UNION MAY BE SHOWN BY MEANS OTHER THAN AN ELECTION; THE
COURT THUS REAFFIRMED ITS STANCE AMONG THOSE CIRCUITS DISAVOWING THE
FOURTH CIRCUIT'S APPROACH TO AUTHORIZATION CARDS.  /6/  BECAUSE OF THE
CONFLICT AMONG THE CIRCUITS ON THE CARD ISSUES AND BECAUSE OF THE
ALLEGED CONFLICT BETWEEN FIRST AMENDMENT FREEDOMS AND THE RESTRICTIONS
PLACED ON EMPLOYER SPEECH BY SEC. 8(A)(1) IN SINCLAIR, NO. 585, WE
GRANTED CERTIORARI TO CONSIDER BOTH QUESTIONS.  393 U.S. 997 (1968). 
FOR REASONS GIVEN BELOW, WE REVERSE THE DECISIONS OF THE COURT OF
APPEALS FOR THE FOURTH CIRCUIT AND AFFIRM THE RULING OF THE COURT OF
APPEALS FOR THE FIRST CIRCUIT. 

        II. 

IN URGING US TO REVERSE THE FOURTH CIRCUIT AND TO AFFIRM THE FIRST
CIRCUIT, THE NATIONAL LABOR RELATIONS BOARD CONTENDS THAT WE SHOULD
APPROVE ITS INTERPRETATION AND ADMINISTRATION OF THE DUTIES AND
OBLIGATIONS IMPOSED BY THE ACT IN AUTHORIZATION CARD CASES.  THE BOARD
ARGUES (1) THAT UNIONS HAVE NEVER BEEN LIMITED UNDER SEC. 9(C) OF
EITHER THE WAGNER ACT OR THE 1947 AMENDMENTS TO CERTIFIED ELECTIONS AS
THE SOLE ROUTE TO ATTAINING REPRESENTATIVE STATUS.  UNIONS MAY, THE
BOARD CONTENDS, IMPOSE A DUTY TO BARGAIN ON THE EMPLOYER UNDER SEC.
8(A)(5) BY RELIANCE ON OTHER EVIDENCE OF MAJORITY EMPLOYEE SUPPORT,
SUCH AS AUTHORIZATION CARDS.  CONTRARY TO THE FOURTH CIRCUIT'S HOLDING,
THE BOARD ASSERTS, THE 1947 AMENDMENTS DID NOT ELIMINATE THE
ALTERNATIVE ROUTES TO MAJORITY STATUS.  THE BOARD CONTENDS (2) THAT THE
CARDS THEMSELVES, WHEN SOLICITED IN ACCORDANCE WITH BOARD STANDARDS
WHICH ADEQUATELY INSURE AGAINST UNION MISREPRESENTATION, ARE
SUFFICIENTLY RELIABLE INDICATORS OF EMPLOYEE DESIRES TO SUPPORT A
BARGAINING ORDER AGAINST AN EMPLOYER WHO REFUSES TO RECOGNIZE A CARD
MAJORITY IN VIOLATION OF SEC. 8(A)(5).  THE BOARD ARGUES (3) THAT A
BARGAINING ORDER IS THE APPROPRIATE REMEDY FOR THE SEC. 8(A)(5)
VIOLATION, WHERE THE EMPLOYER COMMITS OTHER UNFAIR LABOR PRACTICES THAT
TEND TO UNDERMINE UNION SUPPORT AND RENDER A FAIR ELECTION IMPROBABLE. 

RELYING ON THESE THREE ASSERTIONS, THE BOARD ASKS US TO APPROVE ITS
CURRENT PRACTICE, WHICH IS BRIEFLY AS FOLLOWS.  WHEN CONFRONTED BY A
RECOGNITION DEMAND BASED ON POSSESSION OF CARDS ALLEGEDLY SIGNED BY A
MAJORITY OF HIS EMPLOYEES, AN EMPLOYER NEED NOT GRANT RECOGNITION
IMMEDIATELY, BUT MAY, UNLESS HE HAS KNOWLEDGE INDEPENDENTLY OF THE
CARDS THAT THE UNION HAS A MAJORITY, DECLINE THE UNION'S REQUEST AND
INSIST ON AN ELECTION, EITHER BY REQUESTING THE UNION TO FILE AN
ELECTION PETITION OR BY FILING SUCH A PETITION HIMSELF UNDER SEC.
9(C)(1)(B).  IF, HOWEVER, THE EMPLOYER COMMITS INDEPENDENT AND
SUBSTANTIAL UNFAIR LABOR PRACTICES DISRUPTIVE OF ELECTION CONDITIONS,
THE BOARD MAY WITHHOLD THE ELECTION OR SET IT ASIDE, AND ISSUE INSTEAD
A BARGAINING ORDER AS A REMEDY FOR THE VARIOUS VIOLATIONS.  A
BARGAINING ORDER WILL NOT ISSUE, OF COURSE, IF THE UNION OBTAINED THE
CARDS THROUGH MISREPRESENTATION OR COERCION OR IF THE EMPLOYER'S UNFAIR
LABOR PRACTICES ARE UNRELATED GENERALLY TO THE REPRESENTATION
CAMPAIGN.  CONVERSELY, THE EMPLOYERS IN THESE CASES URGE US TO ADOPT
THE VIEWS OF THE FOURTH CIRCUIT. 

THERE IS MORE AT ISSUE IN THESE CASES THAN THE DISPUTE OUTLINED ABOVE
BETWEEN THE BOARD AND THE FOUR EMPLOYERS, HOWEVER, FOR THE UNION,
PETITIONER IN NO. 691, ARGUES THAT WE SHOULD ACCORD A FAR GREATER ROLE
TO CARDS IN THE BARGAINING AREA THAN THE BOARD ITSELF SEEKS IN THIS
LITIGATION.  IN ORDER TO UNDERSTAND THE DIFFERENCES BETWEEN THE UNION
AND THE BOARD, IT IS NECESSARY TO TRACE THE EVOLUTION OF THE BOARD'S
APPROACH TO AUTHORIZATION CARDS FROM ITS EARLY PRACTICE TO THE POSITION
IT TAKES ON ORAL ARGUMENT BEFORE THIS COURT.  SUCH AN ANALYSIS REQUIRES
VIEWING THE BOARD'S TREATMENT OF AUTHORIZATION CARDS IN THREE SEPARATE
PHRASES:  (1) UNDER THE JOY SILK DOCTRINE, (2) UNDER THE RULES OF THE
AARON BROTHERS CASE, AND (3) UNDER THE APPROACH ANNOUNCED AT ORAL
ARGUMENT BEFORE THIS COURT. 

THE TRADITIONAL APPROACH UTILIZED BY THE BOARD FOR MANY YEARS HAS
BEEN KNOWN AS THE JOY SILK DOCTRINE.  JOY SILK MILLS, INC., 85 N.L.R.B.
1263 (1949), ENFORCED, 87 U.S.APP.D.C. 360, 185 F.2D 732 (1950).  UNDER
THAT RULE, AN EMPLOYER COULD LAWFULLY REFUSE TO BARGAIN WITH A UNION
CLAIMING REPRESENTATIVE STATUS THROUGH POSSESSION OF AUTHORIZATION
CARDS IF HE HAD A "GOOD FAITH DOUBT" AS TO THE UNION'S MAJORITY STATUS;
INSTEAD OF BARGAINING, HE COULD INSIST THAT THE UNION SEEK AN ELECTION
IN ORDER TO TEST OUT HIS DOUBTS.  THE BOARD, THEN, COULD FIND A LACK OF
GOOD FAITH DOUBT AND ENTER A BARGAINING ORDER IN ONE OF TWO WAYS.  IT
COULD FIND (1) THAT THE EMPLOYER'S INDEPENDENT UNFAIR LABOR PRACTICES
WERE EVIDENCE OF BAD FAITH, SHOWING THAT THE EMPLOYER WAS SEEKING TIME
TO DISSIPATE THE UNION'S MAJORITY.  OR THE BOARD COULD FIND (2) THAT
THE EMPLOYER HAD COME FORWARD WITH NO REASONS FOR ENTERTAINING ANY
DOUBT AND THEREFORE THAT HE MUST HAVE REJECTED THE BARGAINING DEMAND IN
BAD FAITH.  AN EXAMPLE OF THE SECOND CATEGORY WAS SNOW & SONS, 134
N.L.R.B. 709 (1961), ENFORCED, 308 F.2D 687 (C.A. 9TH CIR. 1962), WHERE
THE EMPLOYER RENEGED ON HIS AGREEMENT TO BARGAIN AFTER A THIRD PARTY
CHECKED THE VALIDITY OF THE CARD SIGNATURES AND INSISTED ON AN ELECTION
BECAUSE HE DOUBTED THAT THE EMPLOYEES TRULY DESIRED REPRESENTATION. 
THE BOARD ENTERED A BARGAINING ORDER WITH VERY BROAD LANGUAGE TO THE
EFFECT THAT AN EMPLOYER COULD NOT REFUSE A BARGAINING DEMAND AND SEEK
AN ELECTION INSTEAD "WITHOUT A VALID GROUND THEREFOR," 134 N.L.R.B.,AT
710-711.  SEE ALSO DIXON FORD SHOE CO., INC., 150 N.L.R.B. 861 (1965);
KELLOGG MILLS, 147 N.L.R.B. 342, 346 (1964), ENFORCED, 347 F.2D 219
(C.A. 9TH CIR. 1965). 

THE LEADING CASE CODIFYING MODIFICATIONS TO THE JOY SILK DOCTRINE
WAS AARON BROTHERS, 158 N.L.R.B. 1077 (1966).  THERE THE BOARD MADE IT
CLEAR THAT IT HAD SHIFTED THE BURDEN TO THE GENERAL COUNSEL TO SHOW BAD
FAITH AND THAT AN EMPLOYER "WILL NOT BE HELD TO HAVE VIOLATED HIS
BARGAINING OBLIGATION . . . SIMPLY BECAUSE HE REFUSES TO RELY UPON
CARDS, RATHER THAN AN ELECTION, AS THE METHOD FOR DETERMINING THE
UNION'S MAJORITY."  158 N.L.R.B.,AT 1078.  TWO SIGNIFICANT CONSEQUENCES
WERE EMPHASIZED.  THE BOARD NOTED (1) THAT NOT EVERY UNFAIR LABOR
PRACTICE WOULD AUTOMATICALLY RESULT IN A FINDING OF BAD FAITH AND
THEREFORE A BARGAINING ORDER; THE BOARD IMPLIED THAT IT WOULD FIND BAD
FAITH ONLY IF THE UNFAIR LABOR PRACTICE WAS SERIOUS ENOUGH TO HAVE THE
TENDENCY TO DISSIPATE THE UNION'S MAJORITY.  THE BOARD NOTED (2) THAT
AN EMPLOYER NO LONGER NEEDED TO COME FORWARD WITH REASONS FOR REJECTING
A BARGAINING DEMAND.  THE BOARD POINTED OUT, HOWEVER, THAT A BARGAINING
ORDER WOULD ISSUE IF IT COULD PROVE THAT AN EMPLOYER'S "COURSE OF
CONDUCT" GAVE INDICATIONS AS TO THE EMPLOYER'S BAD FAITH.  AS EXAMPLES
OF SUCH A "COURSE OF CONDUCT," THE BOARD CITED SNOW & SONS, SUPRA;
DIXON FORD SHOE CO., INC., SUPRA, AND KELLOGG MILLS, SUPRA, THEREBY
REAFFIRMING JOHN P. SERPA, INC., 155 N.L.R.B. 99 (1965), WHERE THE
BOARD HAD LIMITED SNOW & SONS TO ITS FACTS. 

ALTHOUGH THE BOARD'S BRIEF BEFORE THIS COURT GENERALLY FOLLOWED THE
APPROACH AS SET OUT IN AARON BROTHERS, SUPRA, THE BOARD ANNOUNCED AT
ORAL ARGUMENT THAT IT HAD VIRTUALLY ABANDONED THE JOY SILK DOCTRINE
ALTOGETHER.  UNDER THE BOARD'S CURRENT PRACTICE, AN EMPLOYER'S GOOD
FAITH DOUBT IS LARGELY IRRELEVANT, AND THE KEY TO THE ISSUANCE OF A
BARGAINING ORDER IS THE COMMISSION OF SERIOUS UNFAIR LABOR PRACTICES
THAT INTERFERE WITH THE ELECTION PROCESSES AND TEND TO PRECLUDE THE
HOLDING OF A FAIR ELECTION.  THUS, AN EMPLOYER CAN INSIST THAT A UNION
GO TO AN ELELCTION, REGARDLESS OF HIS SUBJECTIVE MOTIVATION, SO LONG AS
HE IS NOT GUILTY OF MISCONDUCT; HE NEED GIVE NO AFFIRMATIVE REASONS FOR
REJECTING A RECOGNITION REQUEST, AND HE CAN DEMAND AN ELECTION WITH A
SIMPLE "NO COMMENT" TO THE UNION.  THE BOARD POINTED OUT, HOWEVER, (1)
THAT AN EMPLOYER COULD NOT REFUSE TO BARGAIN IF HE KNEW, THROUGH A
PERSONAL POLL FOR INSTANCE, THAT A MAJORITY OF HIS EMPLOYEES SUPPORTED
THE UNION, AND (2) THAT AN EMPLOYER COULD NOT REFUSE RECOGNITION
INITIALLY BECAUSE OF QUESTIONS AS TO THE APPROPRIATENESS OF THE UNIT
AND THEN LATER CLAIM, AS AN AFTERTHOUGHT, THAT HE DOUBTED THE UNION'S
STRENGTH. 

THE UNION ARGUES HERE THAT AN EMPLOYER'S RIGHT TO INSIST ON AN
ELECTION IN THE ABSENCE OF UNFAIR LABOR PRACTICES SHOULD BE MORE
CIRCUMSCRIBED, AND A UNION'S RIGHT TO RELY ON CARDS CORRESPONDINGLY
MORE EXPANDED, THAN THE BOARD WOULD HAVE US RULE.  THE UNION'S
CONTENTION IS THAT AN EMPLOYER, WHEN CONFRONTED WITH A CARD-BASED
BARGAINING DEMAND, CAN INSIST ON AN ELECTION ONLY BY FILING THE
ELECTION PETITION HIMSELF IMMEDIATELY UNDER SEC. 9(C)(1)(B) AND NOT BY
INSISTING THAT THE UNION FILE THE ELECTION PETITION, WHEREBY THE
ELECTION CAN BE SUBJECTED TO CONSIDERABLE DELAY.  IF THE EMPLOYER DOES
NOT HIMSELF PETITION FOR AN ELECTION, THE UNION ARGUES, HE MUST
RECOGNIZE THE UNION REGARDLESS OF HIS GOOD OR BAD FAITH AND REGARDLESS
OF HIS OTHER UNFAIR LABOR PRACTICES, AND SHOULD BE ORDERED TO BARGAIN
IF THE CARDS WERE IN FACT VALIDLY OBTAINED.  AND IF THIS COURT SHOULD
CONTINUE TO UTILIZE THE GOOD FAITH DOUBT RULE, THE UNION CONTENDS THAT
AT THE LEAST WE SHOULD PUT THE BURDEN ON THE EMPLOYER TO MAKE AN
AFFIRMATIVE SHOWING OF HIS REASONS FOR ENTERTAINING SUCH DOUBT. 

BECAUSE THE EMPLOYERS' REFUSAL TO BARGAIN IN EACH OF THESE CASES WAS
ACCOMPANIED BY INDEPENDENT UNFAIR LABOR PRACTICES WHICH TEND TO
PRECLUDE THE HOLDING OF A FAIR ELECTION, WE NEED NOT DECIDE WHETHER A
BARGAINING ORDER IS EVER APPROPRIATE IN THE CASES WHERE THERE IS NO
INTERFERENCE WITH THE ELECTION PROCESSES. 

WITH THE UNION'S ARGUMENTS ASIDE, THE POINTS OF DIFFERENCE BETWEEN
THE EMPLOYERS AND THE BOARD WILL BE CONSIDERED IN THE FOLLOWING
MANNER.  THE VALIDITY OF THE CARDS UNDER THE ACT, THEIR INTRINSIC
RELIABILITY, AND THE APPROPRIATENESS OF A BARGAINING ORDER AS A
RESPONSE TO VIOLATIONS OF SEC. 8(A)(5) AS WELL AS SECS. 8(A)(1) AND (3)
WILL BE DISCUSSED IN THE SECTION.  THE NATURE OF AN EMPLOYER'S REACTION
TO AN ORGANIZATIONAL CAMPAIGN, AND PARTICULARLY THE BOARD'S CONCLUSION
THAT THE EMPLOYER'S STATEMENTS IN NO. 585 CONTAINED THREATS OF REPRISAL
AND THUS CONSTITUTED RESTRAINT AND COERCION IN VIOLATION OF SEC.
8(A)(1) AND NOT PROTECTED SPEECH, WILL BE COVERED IN THE FINAL

        III. 

        A. 

THE FIRST ISSUE FACING US IS WHETHER A UNION CAN ESTABLISH A
BARGAINING OBLIGATION BY MEANS OTHER THAN A BOARD ELECTION AND WHETHER
THE VALIDITY OF ALTERNATE ROUTES TO MAJORITY STATUS, SUCH AS CARDS, WAS
AFFECTED BY THE 1947 TAFT-HARTLEY AMENDMENTS.  THE MOST COMMONLY
TRAVELED /7/  ROUTE FOR A UNION RECOGNITION AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF AN UNORGANIZED GROUP OF EMPLOYEES IS THROUGH THE
BOARD'S ELECTION AND CERTIFICATION PROCEDURES UNDER SEC. 9(C) OF THE
ACT (29 U.S.C. 159(C)); IT IS ALSO, FROM THE BOARD'S POINT OF VIEW, THE
PREFERRED ROUTE.  /8/  A UNION IS NOT LIMITED TO A BOARD ELECTION,
HOWEVER, FOR, IN ADDITION TO SEC. 9, THE PRESENT ACT PROVIDES IN SEC.
8(A)(5) (29 U.S.C. 158(A)(5)), AS DID THE WAGNER ACT IN SEC. 8(5), THAT
"(IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER . . . TO REFUSE
TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF HIS EMPLOYEES,
SUBJECT TO THE PROVISIONS OF SECTION 9(A)."  SINCE SEC. 9(A), IN BOTH
THE WAGNER ACT AND THE PRESENT ACT, REFERS TO THE REPRESENTATIVE AS THE
ONE "DESIGNATED OR SELECTED" BY A MAJORITY OF THE EMPLOYEES WITHOUT
SPECIFYING PRECISELY HOW THAT REPRESENTATIVE IS TO BE CHOSEN, IT WAS
EARLY RECOGNIZED THAT AN EMPLOYER HAD A DUTY TO BARGAIN WHENEVER THE
UNION REPRESENTATIVE PRESENTED "CONVINCING EVIDENCE OF MAJORITY
SUPPORT."  /9/  ALMOST FROM THE INCEPTION OF THE ACT, THEN, IT WAS
RECOGNIZED THAT A UNION DID NOT HAVE TO BE CERTIFIED AS THE WINNER OF A
BOARD ELECTION TO INVOKE A BARGAINING OBLIGATION; IT COULD ESTABLISH
MAJORITY STATUS BY OTHER MEANS UNDER THE UNFAIR LABOR PRACTICE
PROVISION OF SEC. 8(A)(5)-- BY SHOWING CONVINCING SUPPORT, FOR
INSTANCE, BY A UNION-CALLED STRIKE OR STRIKE VOTE, /10/  OR, AS HERE,
BY POSSESSION OF CARDS SIGNED BY A MAJORITY OF THE EMPLOYEES
AUTHORIZING THE UNION TO REPRESENT THEM FOR COLLECTIVE BARGAINING
PURPOSES.  /11/ 

WE HAVE CONSISTENTLY ACCEPTED THIS INTERPRETATION OF THE WAGNER ACT
AND THE PRESENT ACT, PARTICULARLY AS TO THE USE OF AUTHORIZATION
CARDS.  SEE, E.G., NLRB V. BRADFORD DYEING ASSN., 310 U.S. 318, 339-340
(1940); FRANKS BROS. CO. V. NLRB, 321 U.S. 702 (1944); UNITED MINE
WORKERS V. ARKANSAS FLOORING CO., 351 U.S. 62 (1956).  THUS, IN UNITED
MINE WORKERS, SUPRA, WE NOTED THAT A "BOARD ELECTION IS NOT THE ONLY
METHOD BY WHICH AN EMPLOYER MAY SATISFY ITSELF AS TO THE UNION'S
MAJORITY STATUS," 351 U.S.,AT 72, N. 8, SINCE SEC. 9(A), "WHICH DEALS
EXPRESSLY WITH EMPLOYEE REPRESENTATION, SAYS NOTHING AS TO HOW THE
EMPLOYEES'  REPRESENTATIVE SHALL BE CHOSEN," 351 U.S.,AT 71.  WE
THEREFORE POINTED OUT IN THAT CASE, WHERE THE UNION HAD OBTAINED SIGNED
AUTHORIZATION CARDS FROM A MAJORITY OF THE EMPLOYEES, THAT "(IN THE
ABSENCE OF ANY BONA FIDE DISPUTE /12/  AS TO THE EXISTENCE OF THE
REQUIRED MAJORITY OF ELIGIBLE EMPLOYEES, THE EMPLOYER'S DENIAL OF
RECOGNITION OF THE UNION WOULD HAVE VIOLATED SEC. 8(A)(5) OF THE ACT." 
351 U.S.,AT 69.  WE SEE NO REASON TO REJECT THIS APPROACH TO BARGAINING
OBLIGATIONS NOW, AND WE FIND UNPERSUASIVE THE FOURTH CIRCUIT'S VIEW
THAT THE 1947 TAFT-HARTLEY AMENDMENTS, ENACTED SOME NINE YEARS BEFORE
OUR DECISION IN UNITED MINE WORKERS, SUPRA, REQUIRE US TO DISREGARD
THAT CASE.  INDEED, THE 1947 AMENDMENTS WEAKEN RATHER THAN STRENGTHEN
THE POSITION TAKEN BY THE EMPLOYERS HERE AND THE FOURTH CIRCUIT BELOW. 
AN EARLY VERSION OF THE BILL IN THE HOUSE WOULD HAVE AMENDED SEC. 8(5)
OF THE WAGNER ACT TO PERMIT THE BOARD TO FIND A REFUSAL-TO-BARGAIN
VIOLATION ONLY WHERE AN EMPLOYER HAD FAILED TO BARGAIN WITH A UNION
"CURRENTLY RECOGNIZED BY THE EMPLOYER OR CERTIFIED AS SUCH (THROUGH AN
ELECTION) UNDER SECTION 9."  SECTION 8(A)(5) OF H.R. 3020, 80TH CONG.,
1ST SESS. (1947).  THE PROPOSED CHANGE, WHICH WOULD HAVE ELIMINATED THE
USE OF CARDS, WAS REJECTED IN CONFERENCE (H.R. CONF. REP. NO. 510, 80TH
CONG., 1ST SESS., 41 (1947)), HOWEVER, AND WE CANNOT MAKE A SIMILAR
CHANGE IN THE ACT SIMPLY BECAUSE, AS THE EMPLOYERS ASSERT, CONGRESS DID
NOT EXPRESSLY APPROVE THE USE OF CARDS IN REJECTING THE HOUSE
AMENDMENT.  NOR CAN WE ACCEPT THE FOURTH CIRCUIT'S CONCLUSION THAT THE
CHANGE WAS WROUGHT WHEN CONGRESS AMENDED SEC. 9(C) TO MAKE ELECTION THE
SOLE BASIS FOR CERTIFICATION BY ELIMINATING THE PHRASE "ANY OTHER
SUITABLE METHOD TO ASCERTAIN SUCH REPRESENTATIVES,"  /13/  UNDER WHICH
THE BOARD HAD OCCASIONALLY USED CARDS AS A CERTIFICATION BASIS.  A
CERTIFIED UNION HAS THE BENEFIT OF NUMEROUS SPECIAL PRIVILEGES WHICH
ARE NOT ACCORDED UNIONS RECOGNIZED VOLUNTARILY OR UNDER A BARGAINING
ORDER /14/  AND WHICH, CONGRESS COULD DETERMINE, SHOULD NOT BE
DISPENSED UNLESS A UNION HAS SURVIVED THE CRUCIBLE OF A SECRET BALLOT
ELECTION. 

THE EMPLOYERS RELY FINALLY ON THE ADDITION TO SEC. 9(C) OF
SUBPARAGRAPH (B), WHICH ALLOWS AN EMPLOYER TO PETITION FOR AN ELECTION
WHENEVER "ONE OR MORE INDIVIDUALS OR LABOR ORGANIZATIONS HAVE PRESENTED
TO HIM A CLAIM /15/  TO BE RECOGNIZED AS THE REPRESENTATIVE DEFINED IN
TO GIVE THEM AS ABSOLUTE RIGHT TO AN ELECTION AT ANY TIME; RATHER, IT
WAS INTENDED, AS THE LEGISLATIVE HISTORY INDICATES, TO ALLOW THEM,
AFTER BEING ASKED TO BARGAIN, TO TEST OUT THEIR DOUBTS AS TO A UNION'S
MAJORITY IN A SECRET ELECTION WHICH THEY WOULD THEN PRESUMABLY NOT
CAUSE TO BE SET ASIDE BY ILLEGAL ANTIUNION ACTIVITY.  /16/  WE AGREE
WITH THE BOARD'S ASSERTION HERE THAT THERE IS NO SUGGESTION THAT
CONGRESS INTENDED SEC. 9(C)(1)(B) TO RELIEVE ANY EMPLOYER OF HIS SEC.
8(A)(5) BARGAINING OBLIGATION WHERE, WITHOUT GOOD FAITH, HE ENGAGED IN
UNFAIR LABOR PRACTICES DISRUPTIVE OF THE BOARD'S ELECTION MACHINERY. 
AND WE AGREE THAT THE POLICIES REFLECTED IN SEC. 9(C)(1)(B) FULLY
SUPPORT THE BOARD'S PRESENT ADMINISTRATION OF THE ACT (SEE SUPRA, AT
591-592); FOR AN EMPLOYER CAN INSIST ON A SECRET BALLOT ELECTION,
UNLESS, IN THE WORDS OF THE BOARD, HE ENGAGES "IN CONTEMPORANEOUS
UNFAIR LABOR PRACTICES LIKELY TO DESTROY THE UNION'S MAJORITY AND
SERIOUSLY IMPEDE THE ELECTION."  BRIEF FOR PETITIONER, THE BOARD, IN
NO. 573, P. 36. 

IN SHORT, WE HOLD THAT THE 1947 AMENDMENTS DID NOT RESTRICT AN
EMPLOYER'S DUTY TO BARGAIN UNDER SEC. 8(A)(5) SOLELY TO THOSE UNIONS
WHOSE REPRESENTATIVE STATUS IS CERTIFIED AFTER A BOARD ELECTION.  /17/

        B. 

WE NEXT CONSIDER THE QUESTION WHETHER AUTHORIZATION CARDS ARE SUCH
INHERENTLY UNRELIABLE INDICATORS OF EMPLOYEE DESIRES THAT, WHATEVER THE
VALIDITY OF OTHER ALTERNATE ROUTES TO REPRESENTATIVE STATUS, THE CARDS
THEMSELVES MAY NEVER BE USED TO DETERMINE A UNION'S MAJORITY AND TO
SUPPORT AN ORDER TO BARGAIN.  IN THIS CONTEXT, THE EMPLOYERS URGE US TO
TAKE THE STEP THE 1947 AMENDMENTS AND THEIR LEGISLATIVE HISTORY
INDICATE CONGRESS DID NOT TAKE, NAMELY, TO RULE OUT COMPLETELY THE USE
OF CARDS IN THE BARGAINING ARENA.  EVEN IF WE DO NOT UNHESITATINGLY
ACCEPT THE FOURTH CIRCUIT'S VIEW IN THE MATTER, THE EMPLOYERS ARGUE, AT
THE VERY LEAST WE SHOULD OVERRULE THE CUMBERLAND SHOE DOCTRINE (SEE
SUPRA, AT 584) AND ESTABLISH STRICTER CONTROLS OVER THE SOLICITATION OF
THE CARDS BY UNION REPRESENTATIVES.  /18/ 

THE OBJECTIONS TO THE USE OF CARDS VOICED BY THE EMPLOYERS AND THE
FOURTH CIRCUIT BOIL DOWN TO TWO CONTENTIONS:  /19/  (1) THAT, AS
CONTRASTED WITH THE ELECTION PROCEDURE, /20/  THE CARDS CANNOT
ACCURATELY REFLECT AN EMPLOYEE'S WISHES, EITHER BECAUSE AN EMPLOYER HAS
NOT HAD A CHANCE TO PRESENT HIS VIEWS AND THUS A CHANCE TO INSURE THAT
THE EMPLOYEE CHOICE WAS AN INFORMED ONE, OR BECAUSE THE CHOICE WAS THE
RESULT OF GROUP PRESSURES AND NOT INDIVIDUAL DECISION MADE IN THE
PRIVACY OF A VOTING BOOTH; AND (2) THAT QUITE APART FROM THE ELECTION
COMPARISON, THE CARDS ARE TOO OFTEN OBTAINED THROUGH MISREPRESENTATION
AND COERCION WHICH COMPOUND THE CARDS' INHERENT INFERIORITY TO THE
ELECTION PROCESS.  NEITHER CONTENTION IS PERSUASIVE, AND EACH PROVES
TOO MUCH.  THE BOARD ITSELF HAS RECOGNIZED, AND CONTINUES TO DO SO
HERE, THAT SECRET ELECTIONS ARE GENERALLY THE MOST SATISFACTORY--
INDEED THE PREFERRED-- METHOD OF ASCERTAINING WHETHER A UNION HAS A
MAJORITY SUPPORT.  /21/  THE ACKNOWLEDGED SUPERIORITY OF THE ELECTION
PROCESS, HOWEVER, DOES NOT MEAN THAT CARDS ARE THEREBY RENDERED TOTALLY
INVALID, FOR WHERE AN EMPLOYER ENGAGES IN CONDUCT DISRUPTIVE OF THE
ELECTION PROCESS, CARDS MAY BE THE MOST EFFECTIVE-- PERHAPS THE ONLY--
WAY OF ASSURING EMPLOYEE CHOICE.  AS FOR MISREPRESENTATION, IN ANY
SPECIFIC CASE OF ALLEGED IRREGULARITY IN THE SOLICITATION OF THE CARDS,
THE PROPER COURSE IS TO APPLY THE BOARD'S CUSTOMARY STANDARDS (TO BE
DISCUSSED MORE FULLY BELOW) AND RULE THAT THERE WAS NO MAJORITY IF THE
STANDARDS WERE NOT SATISFIED.  IT DOES NOT FOLLOW THAT BECAUSE THERE
ARE SOME INSTANCES OF IRREGULARITY, THE CARDS CAN NEVER BE USED;
OTHERWISE, AN EMPLOYER COULD PUT OFF HIS BARGAINING OBLIGATION
INDEFINITELY THROUGH CONTINUING INTERFERENCE WITH ELECTIONS. 

THAT THE CARDS, THOUGH ADMITTEDLY INFERIOR TO THE ELECTION PROCESS,
CAN ADEQUATELY REFLECT EMPLOYEE SENTIMENT WHEN THAT PROCESS HAS BEEN
IMPEDED, NEEDS NO EXTENDED DISCUSSION, FOR THE EMPLOYERS' CONTENTIONS
CANNOT WITHSTAND CLOSE EXAMINATION.  THE EMPLOYERS ARGUE THAT THEIR
EMPLOYEES CANNOT MAKE AN INFORMED CHOICE BECAUSE THE CARD DRIVE WILL BE
OVER BEFORE THE EMPLOYER HAS HAD A CHANCE TO PRESENT HIS SIDE OF THE
UNIONIZATION ISSUES.  NORMALLY, HOWEVER, THE UNION WILL INFORM THE
EMPLOYER OF ITS ORGANIZATION DRIVE EARLY IN ORDER TO SUBJECT THE
EMPLOYER TO THE UNFAIR LABOR PRACTICE PROVISIONS OF THE ACT; THE UNION
MUST BE ABLE TO SHOW THE EMPLOYER'S AWARENESS OF THE DRIVE IN ORDER TO
PROVE THAT HIS CONTEMPORANEOUS CONDUCT CONSTITUTED UNFAIR LABOR
PRACTICES ON WHICH A BARGAINING ORDER CAN BE BASED IF THE DRIVE IS
ULTIMATELY SUCCESSFUL.  SEE, E.G., HUNT OIL CO., 157 N.L.R.B. 282
(1966); DON SWART TRUCKING CO., 154 N.L.R.B. 1345 (1965).  THUS, IN ALL
OF THE CASES HERE BUT THE CHARLESTON CAMPAIGN IN HECK'S THE EMPLOYER,
WHETHER INFORMED BY THE UNION OR NOT, WAS AWARE OF THE UNION'S
ORGANIZING DRIVE ALMOST AT THE OUTSET AND BEGAN ITS ANTIUNION CAMPAIGN
AT THAT TIME; AND EVEN IN THE HECK'S CHARLESTON CASE, WHERE THE
RECOGNITION DEMAND CAME ABOUT A WEEK AFTER THE SOLICITATION BEGAN, THE
EMPLOYER WAS ABLE TO DELIVER A SPEECH BEFORE THE UNION OBTAINED A
MAJORITY.  FURTHER, THE EMPLOYERS ARGUE THAT WITHOUT A SECRET BALLOT AN
EMPLOYEE MAY, IN A CARD DRIVE, SUCCUMB TO GROUP PRESSURES OR SIGN
SIMPLY TO GET THE UNION "OFF HIS BACK" AND THEN BE UNABLE TO CHANGE HIS
MIND AS HE WOULD BE FREE TO DO ONCE INSIDE A VOTING BOOTH.  BUT THE
SAME PRESSURES ARE LIKELY TO BE EQUALLY PRESENT IN AN ELECTION, FOR
ELECTION CASES ARISE MOST OFTEN WITH SMALL BARGAINING UNITS /22/  WHERE
VIRTUALLY EVERY VOTER'S SENTIMENTS CAN BE CAREFULLY AND INDIVIDUALLY
CANVASSED.  AND NO VOTER, OF COURSE, CAN CHANGE HIS MIND AFTER CASTING
A BALLOT IN AN ELECTION EVEN THOUGH HE MAY THINK BETTER OF HIS CHOICE
SHORTLY THEREAFTER. 

THE EMPLOYERS' SECOND COMPLAINT, THAT THE CARDS ARE TOO OFTEN
OBTAINED THROUGH MISREPRESENTATION AND COERCION, MUST BE REJECTED ALSO
IN VIEW OF THE BOARD'S PRESENT RULES FOR CONTROLLING CARD SOLICITATION,
WHICH WE VIEW AS ADEQUATE TO THE TASK WHERE THE CARDS INVOLVED STATE
THEIR PURPOSE CLEARLY AND UNAMBIGUOUSLY ON THEIR FACE.  WE WOULD BE
CLOSING OUR EYES TO OBVIOUS DIFFICULTIES, OF COURSE, IF WE DID NOT
RECOGNIZE THAT THERE HAVE BEEN ABUSES, PRIMARILY ARISING OUT OF
MISREPRESENTATIONS BY UNION ORGANIZERS AS TO WHETHER THE EFFECT OF
SIGNING A CARD WAS TO DESIGNATE THE UNION TO REPRESENT THE EMPLOYEE FOR
COLLECTIVE BARGAINING PURPOSES OR MERELY TO AUTHORIZE IT TO SEEK AN
ELECTION TO DETERMINE THAT ISSUE.  AND WE WOULD BE EQUALLY BLIND IF WE
DID NOT RECOGNIZE THAT VARIOUS COURTS OF APPEALS AND COMMENTATORS /23/
HAVE DIFFERED SIGNIFICANTLY AS TO THE EFFECTIVENESS OF THE BOARD'S
CUMBERLAND SHOE DOCTRINE (SEE SUPRA, AT 584) TO CURE SUCH ABUSES. 

THUS, EVEN WHERE THE CARDS ARE UNAMBIGUOUS ON THEIR FACT, BOTH THE
SECOND CIRCUIT (NLRB V.S. E. NICHOLS CO., 380 F.2D 438 (1967)) AND THE
FIFTH CIRCUIT (ENGINEERS & FABRICATORS, INC. V. NLRB, 376 F.2D 482
(1967)) HAVE JOINED THE FOURTH CIRCUIT BELOW IN REJECTING THE BOARD'S
RULE THAT THE CARDS WILL BE COUNTED UNLESS THE SOLICITOR'S STATEMENTS
AMOUNTED UNDER THE CIRCUMSTANCES TO AN ASSURANCE THAT THE CARDS WOULD
BE USED ONLY FOR AN ELECTION, OR FOR NO OTHER PURPOSE THAN AN
ELECTION.  AND EVEN THOSE CIRCUITS WHICH HAVE ADOPTED THE BOARD'S
APPROACH HAVE CRITICIZED THE BOARD FOR TENDING TOO OFTEN TO APPLY THE
CUMBERLAND RULE TOO MECHANICALLY, DECLINING OCCASIONALLY TO UPHOLD THE
BOARD'S APPLICATION OF ITS OWN RULE IN A GIVEN CASE.  SEE, E.G., NLRB
V. SOUTHBRIDGE SHEET METAL WORKS, INC., 380 F.2D 851 (C.A. 1ST CIR.
1967); NLRB V. SANDY'S STORES, INC., 398 F.2D 268 (C.A. 1ST CIR. 1968);
NLRB V. SWAN SUPER CLEANERS, INC., 384 F.2D 609 (C.A. 6TH CIR. 1967);
NLRB V. DAN HOWARD MFG. CO., 390 F.2D 304 (C.A. 7TH CIR. 1968); FURR'S,
INC. V. NLRB, 381 F.2D 562 (C.A. 10TH CIR. 1967); UAW V. NLRB, 129
U.S.APP.D.C. 196, 392 F.2D 801 (1967).  AMONG THOSE WHICH REJECT THE
CUMBERLAND RULE, THE FIFTH CIRCUIT AGREES WITH THE SECOND CIRCUIT (SEE
S. E. NICHOLS CO., SUPRA), THAT A CARD WILL BE VITIATED IF AN EMPLOYEE
WAS LEFT WITH THE IMPRESSION THAT HE WOULD BE ABLE TO RESOLVE ANY
LINGERING DOUBTS AND MAKE A FINAL DECISION IN AN ELECTION, AND FURTHER
REQUIRES THAT THE BOARD PROBE THE SUBJECTIVE INTENT OF EACH SIGNER, AN
INQUIRY EXPRESSLY AVOIDED BY CUMBERLAND.  SEE NLRB V. SOUTHLAND PAINT
CO., 394 F.2D 717, 728, 730 (C.A. 5TH CIR. 1968); ENGINEERS &
FABRICATORS, INC. V. NLRB, SUPRA.  WHERE THE CARDS ARE AMBIGUOUS ON
THEIR FACE, THE FIFTH CIRCUIT, JOINED BY THE EIGHTH CIRCUIT (SEE, E.G.,
NLRB V. PETERSON BROS., 342 F.2D 221 (C.A. 5TH CIR. 1965), AND BAUER
WELDING & METAL FABRICATORS, INC. V. NLRB, 358 F.2D 766 (C.A. 8TH CIR.
1966)), DEPARTS STILL FURTHER FROM THE BOARD RULE.  AND THERE IS A
CONFLICT AMONG THOSE COURTS WHICH OTHERWISE FOLLOW THE BOARD AS TO
SINGLE-PURPOSE CARDS (COMPARE NLRB V. LENZ CO., 396 F.2D 905, 908 (C.A.
6TH CIR. 1968), WITH NLRB V. C. J. GLASGOW CO., 356 F.2D 476, 478 (C.A.
7TH CIR. 1966)). 

WE NEED MAKE NO DECISION AS TO THE CONFLICTING APPROACHES USED WITH
REGARD TO DUAL-PURPOSE CARDS, FOR IN EACH OF THE FIVE ORGANIZATION
CAMPAIGNS IN THE FOUR CASES BEFORE US THE CARDS USED WERE SINGLE
PURPOSE CARDS, STATING CLEARLY AND UNAMBIGUOUSLY ON THEIR FACE THAT THE
SIGNER DESIGNATED THE UNION AS HIS REPRESENTATIVE.  AND EVEN THE VIEW
FORCEFULLY VOICED BY THE FOURTH CIRCUIT BELOW THAT UNAMBIGUOUS CARDS AS
WELL PRESENT TOO MANY OPPORTUNITIES FOR MISREPRESENTATION COMES BEFORE
US SOMEWHAT WEAKENED IN VIEW OF THE FACT THAT THERE WERE NO ALLEGATIONS
OF IRREGULARITIES IN FOUR OF THOSE FIVE CAMPAIGNS (GISSEL, THE TWO
HECK'S CAMPAIGNS, /24/  AND SINCLAIR).  ONLY IN GENERAL STEEL DID THE
EMPLOYER CHALLENGE THE CARDS ON THE BASIS OF MISREPRESENTATIONS. 
THERE, THE TRIAL EXAMINER, AFTER HEARING TESTIMONY FROM OVER 100
EMPLOYEES AND APPLYING THE TRADITIONAL BOARD APPROACH (SEE N. 5,
SUPRA), CONCLUDED THAT "ALL OF THESE EMPLOYEES NOT ONLY INTENDED, BUT
WERE FULLY AWARE, THAT THEY WERE THEREBY DESIGNATING THE UNION AS THEIR
REPRESENTATIVE."  THUS, THE SOLE QUESTION BEFORE US, RAISED IN ONLY ONE
OF THE FOUR CASES HERE, IS WHETHER THE CUMBERLAND SHOE DOCTRINE IS AN
ADEQUATE RULE UNDER THE ACT FOR ASSURING EMPLOYEE FREE CHOICE.     IN
RESOLVING THE CONFLICT AMONG THE CIRCUITS IN FAVOR OF APPROVING THE
BOARD'S CUMBERLAND RULE, WE THINK IT SUFFICIENT TO POINT OUT THAT
EMPLOYEES SHOULD BE BOUND BY THE CLEAR LANGUAGE OF WHAT THEY SIGN
UNLESS THAT LANGUAGE IS DELIBERATELY AND CLEARLY CANCELED BY A UNION
ADHERENT WITH WORDS CALCULATED TO DIRECT THE SIGNER TO DISREGARD AND
FORGET THE LANGUAGE ABOVE HIS SIGNATURE.  THERE IS NOTHING INCONSISTENT
IN HANDING AN EMPLOYEE A CARD THAT SAYS THE SIGNER AUTHORIZES THE UNION
TO REPRESENT HIM AND THEN TELLING HIM THAT THE CARD WILL PROBABLY BE
USED FIRST TO GET AN ELECTION.  ELECTIONS HAVE BEEN, AFTER ALL, AND
WILL CONTINUE TO BE, HELD IN THE VAST MAJORITY OF CASES; THE UNION WILL
STILL HAVE TO HAVE THE SIGNATURES OF 30% /25/  OF THE EMPLOYEES WHEN AN
EMPLOYER REJECTS A BARGAINING DEMAND AND INSISTS THAT THE UNION SEEK AN
ELECTION.  WE CANNOT AGREE WITH THE EMPLOYERS HERE THAT EMPLOYEES AS A
RULE ARE TOO UNSOPHISTICATED TO BE BOUND BY WHAT THEY SIGN UNLESS
EXPRESSLY TOLD THAT THEIR ACT OF SIGNING REPRESENTS SOMETHING ELSE.  IN
ADDITION TO APPROVING THE USE OF CARDS, OF COURSE, CONGRESS HAS
EXPRESSLY AUTHORIZED RELIANCE ON EMPLOYEE SIGNATURES ALONE IN OTHER
AREAS OF LABOR RELATIONS, EVEN WHERE CRIMINAL SANCTIONS HANG IN THE
BALANCE, /26/  AND WE SHOULD NOT ACT HASTILY IN DISREGARDING
CONGRESSIONAL JUDGMENTS THAT EMPLOYEES CAN BE COUNTED ON TO TAKE
RESPONSIBILITY FOR THEIR ACTS. 

WE AGREE, HOWEVER, WITH THE BOARD'S OWN WARNINGS IN LEVI STRAUSS &
CO., 172 N.L.R.B.NO. 57, 68 L.R.R.M. 1338, 1341, AND N. 7 (1968), THAT
IN HEARING TESTIMONY CONCERNING A CARD CHALLENGE, TRIAL EXAMINERS
SHOULD NOT NEGLECT THEIR OBLIGATION TO ENSURE EMPLOYEE FREE CHOICE BY A
TOO EACH MECHANICAL APPLICATION OF THE CUMBERLAND RULE.  /27/  WE ALSO
ACCEPT THE OBSERVATION THAT EMPLOYEES ARE MORE LIKELY THAN NOT, MANY
MONTHS AFTER A CARD DRIVE AND IN RESPONSE TO QUESTIONS BY COMPANY
COUNSEL, TO GIVE TESTIMONY DAMAGING TO THE UNION, PARTICULARLY WHERE
COMPANY OFFICIALS HAVE PREVIOUSLY THREATENED REPRISALS FOR UNION
ACTIVITY IN VIOLATION OF SEC. 8(A)(1).  /28/  WE THEREFORE REJECT ANY
RULE THAT REQUIRES A PROBE OF AN EMPLOYEE'S SUBJECTIVE MOTIVATIONS AS
INVOLVING AN ENDLESS AND UNRELIABLE INQUIRY.  WE NEVERTHELESS FEEL THAT
THE TRIAL EXAMINER'S FINDINGS IN GENERAL STEEL (SEE N. 5, SUPRA)
REPRESENT THE LIMITS OF THE CUMBERLAND RULE'S APPLICATION.  WE
EMPHASIZE THAT THE BOARD SHOULD BE CAREFUL TO GUARD AGAINST AN APPROACH
ANY MORE RIGID THAN THAT IN GENERAL STEEL.  AND WE REITERATE THAT
NOTHING WE SAY HERE INDICATES OUR APPROVAL OF THE CUMBERLAND SHOE RULE
WHEN APPLIED TO AMBIGUOUS, DUAL-PURPOSE CARDS. 

THE EMPLOYERS ARGUE AS A FINAL REASON FOR REJECTING THE USE OF THE
CARDS THAT THEY ARE FACED WITH A HOBSON'S CHOICE /29/  UNDER CURRENT
BOARD RULES AND WILL ALMOST INEVITABLY COME OUT THE LOSER.  THEY
CONTEND THAT IF THEY DO NOT MAKE AN IMMEDIATE, PERSONAL INVESTIGATION
INTO POSSIBLE SOLICITATION IRREGULARITIES TO DETERMINE WHETHER IN FACT
THE UNION REPRESENTS AN UNCOERCED MAJORITY, THEY WILL HAVE UNLAWFULLY
REFUSED TO BARGAIN FOR FAILURE TO HAVE A GOOD FAITH DOUBT OF THE
UNION'S MAJORITY; AND IF THEY DO MAKE SUCH AN INVESTIGATION, THEIR
EFFORTS AT POLLING AND INTERROGATION WILL CONSTITUTE AN UNFAIR LABOR
PRACTICE IN VIOLATION OF SEC. 8(A)(1) AND THEY WILL AGAIN BE ORDERED TO
BARGAIN.  AS WE HAVE POINTED OUT, HOWEVER, AN EMPLOYER IS NOT OBLIGATED
TO ACCEPT A CARD CHECK AS PROOF OF MAJORITY STATUS, UNDER THE BOARD'S
CURRENT PRACTICE, AND HE IS NOT REQUIRED TO JUSTIFY HIS INSISTENCE ON
AN ELECTION BY MAKING HIS OWN INVESTIGATION OF EMPLOYEE SENTIMENT AND
SHOWING AFFIRMATIVE REASONS FOR DOUBTING THE MAJORITY STATUS.  SEE
AARON BROTHERS, 158 N.L.R.B. 1077, 1078.  IF HE DOES MAKE AN
INVESTIGATION, THE BOARD'S RECENT CASES INDICATE THAT REASONABLE
POLLING IN THIS REGARD WILL NOT ALWAYS BE TERMED VIOLATIVE OF SEC.
8(A)(1) IF CONDUCTED IN ACCORDANCE WITH THE REQUIREMENTS SET OUT IN
STRUKSNES CONSTRUCTION CO., 165 N.L.R.B.NO. 102, 65 L.R.R.M. 1385
(1967).  AND EVEN IF AN EMPLOYER'S LIMITED INTERROGATION IS FOUND
VIOLATIVE OF THE ACT, IT MIGHT NOT BE SERIOUS ENOUGH TO CALL FOR A
BARGAINING ORDER.  SEE AARON BROTHERS, SUPRA; HAMMOND & IRVING, INC.,
154 N.L.R.B. 1071 (1965).  AS NOTED ABOVE, THE BOARD HAS EMPHASIZED
THAT NOT "ANY EMPLOYER CONDUCT FOUND VIOLATIVE OF SECTION 8(A)(1) OF
THE ACT, REGARDLESS OF ITS NATURE OR GRAVITY, WILL NECESSARILY SUPPORT
A REFUSAL-TO-BARGAIN FINDING,"  AARON BROTHERS, SUPRA, AT 1079. 

        C. 

REMAINING BEFORE US IS THE PROPRIETY OF A BARGAINING ORDER AS A
REMEDY FOR A SEC. 8(A)(5) REFUSAL TO BARGAIN WHERE AN EMPLOYER HAS
COMMITTED INDEPENDENT UNFAIR LABOR PRACTICES WHICH HAVE MADE THE
HOLDING OF A FAIR ELECTION UNLIKELY OR WHICH HAVE IN FACT UNDERMINED A
UNION'S MAJORITY AND CAUSED AN ELECTION TO BE SET ASIDE.  WE HAVE LONG
HELD THAT THE BOARD IS NOT LIMITED TO A CEASE-AND-DESIST ORDER IN SUCH
CASES, BUT HAS THE AUTHORITY TO ISSUE A BARGAINING ORDER WITHOUT FIRST
REQUIRING THE UNION TO SHOW THAT IT HAS BEEN ABLE TO MAINTAIN ITS
MAJORITY STATUS.  SEE NLRB V. KATZ, 369 U.S. 736, 748, N. 16 (1962);
NLRB V. P. LORILLARD CO., 314 U.S. 512 (1942).  AND WE HAVE HELD THAT
THE BOARD HAS THE SAME AUTHORITY EVEN WHERE IT IS CLEAR THAT THE UNION,
WHICH ONCE HAD POSSESSION OF CARDS FROM A MAJORITY OF THE EMPLOYEES,
REPRESENTS ONLY A MINORITY WHEN THE BARGAINING ORDER IS ENTERED. 
FRANKS BROS. CO. V. NLRB, 321 U.S. 702 (1944).  WE SEE NO REASON NOW TO
WITHDRAW THIS AUTHORITY FROM THE BOARD.  IF THE BOARD COULD ENTER ONLY
A CEASE-AND-DESIST ORDER AND DIRECT AN ELECTION OR A RERUN, IT WOULD IN
EFFECT BE REWARDING THE EMPLOYER AND ALLOWING HIM "TO PROFIT FROM (HIS)
OWN WRONGFUL REFUSAL TO BARGAIN," FRANKS BROS., SUPRA, AT 704, WHILE AT
THE SAME TIME SEVERELY CURTAILING THE EMPLOYEES' RIGHT FREELY TO
DETERMINE WHETHER THEY DESIRE A REPRESENTATIVE.  THE EMPLOYER COULD
CONTINUE TO DELAY OR DISRUPT THE ELECTION PROCESSES AND PUT OFF
INDEFINITELY HIS OBLIGATION TO BARGAIN; /30/  AND ANY ELECTION HELD
UNDER THESE CIRCUMSTANCES WOULD NOT BE LIKELY TO DEMONSTRATE THE
EMPLOYEES' TRUE, UNDISTORTED DESIRES.  /31/ 

THE EMPLOYERS ARGUE THAT THE BOARD HAS AMPLE REMEDIES, OVER AND
ABOVE THE CEASE-AND-DESIST ORDER, TO CONTROL EMPLOYER MISCONDUCT.  THE
BOARD CAN, THEY ASSERT, DIRECT THE COMPANIES TO MAIL NOTICES TO
EMPLOYEES, TO READ NOTICES TO EMPLOYEES DURING PLANT TIME AND TO GIVE
THE UNION ACCESS TO EMPLOYEES DURING WORKING TIME AT THE PLANT, OR IT
CAN SEEK A COURT INJUNCTIVE ORDER UNDER SEC. 10(J) (29 U.S.C. 160(J))
AS A LAST RESORT.  IN VIEW OF THE BOARD'S POWER, THEY CONCLUDE, THE
BARGAINING ORDER IS AN UNNECESSARILY HARSH REMEDY THAT NEEDLESSLY
PREJUDICES EMPLOYEES' SEC. 7 RIGHTS SOLELY FOR THE PURPOSE OF PUNISHING
OR RESTRAINING AN EMPLOYER.  SUCH AN ARGUMENT IGNORES THAT A BARGAINING
ORDER IS DESIGNED AS MUCH TO REMEDY PAST ELECTION DAMAGE /32/  AS IT IS
TO DETER FUTURE MISCONDUCT.  IF AN EMPLOYER HAS SUCCEEDED IN
UNDERMINING A UNION'S STRENGTH AND DESTROYING THE LABORATORY CONDITIONS
NECESSARY FOR A FAIR ELECTION, HE MAY SEE NO NEED TO VIOLATE A CEASE
AND-DESIST ORDER BY FURTHER UNLAWFUL ACTIVITY.  THE DAMAGE WILL HAVE
BEEN DONE, AND PERHAPS THE ONLY FAIR WAY TO EFFECTUATE EMPLOYEE RIGHTS
IS TO RE-ESTABLISH THE CONDITIONS AS THEY EXISTED BEFORE THE EMPLOYER'S
UNLAWFUL CAMPAIGN.  /33/ 

THERE IS, AFTER ALL, NOTHING PERMANENT IN A BARGAINING ORDER, AND
IF, AFTER THE EFFECTS OF THE EMPLOYER'S ACTS HAVE WORN OFF, THE
EMPLOYEES CLEARLY DESIRE TO DISAVOW THE UNION, THEY CAN DO SO BY FILING
A REPRESENTATION PETITION.  FOR, AS WE POINTED OUT LONG AGO, IN FINDING
THAT A BARGAINING ORDER INVOLVED NO "INJUSTICE TO EMPLOYEES WHO MAY
WISH TO SUBSTITUTE FOR THE PARTICULAR UNION SOME OTHER . . .
ARRANGEMENT," A BARGAINING RELATIONSHIP "ONCE RIGHTFULLY ESTABLISHED
MUST BE PERMITTED TO EXIST AND FUNCTION FOR A REASONABLE PERIOD IN
WHICH IT CAN BE GIVEN A FAIR CHANCE TO SUCCEED," AFTER WHICH THE "BOARD
MAY, . . . UPON A PROPER SHOWING, TAKE STEPS IN RECOGNITION OF CHANGED
SITUATIONS WHICH MIGHT MAKE APPROPRIATE CHANGED BARGAINING
RELATIONSHIPS."  FRANK BROS., SUPRA, AT 705-706. 

BEFORE CONSIDERING WHETHER THE BARGAINING ORDERS WERE APPROPRIATELY
ENTERED IN THESE CASES, WE SHOULD SUMMARIZE THE FACTORS THAT GO INTO
SUCH A DETERMINATION.  DESPITE OUR REVERSAL OF THE FOURTH CIRCUIT BELOW
IN NOS. 573 AND 691 ON ALL MAJOR ISSUES, THE ACTUAL AREA OF
DISAGREEMENT BETWEEN OUR POSITION HERE AND THAT OF THE FOURTH CIRCUIT
IS NOT LARGE AS A PRACTICAL MATTER.  WHILE REFUSING TO VALIDATE THE
GENERAL USE OF A BARGAINING ORDER IN RELIANCE ON CARDS, THE FOURTH
CIRCUIT NEVERTHELESS LEFT OPEN THE POSSIBILITY OF IMPOSING A BARGAINING
ORDER, WITHOUT NEED OF INQUIRY INTO MAJORITY STATUS ON THE BASIS OF
CARDS OR OTHERWISE, IN "EXCEPTIONAL" CASES MARKED BY "OUTRAGEOUS" AND
"PERVASIVE" UNFAIR LABOR PRACTICES.  SUCH AN ORDER WOULD BE AN
APPROPRIATE REMEDY FOR THOSE PRACTICES, THE COURT NOTED, IF THEY ARE OF
"SUCH A NATURE THAT THEIR COERCIVE EFFECTS CANNOT BE ELIMINATED BY THE
APPLICATION OF TRADITIONAL REMEDIES, WITH THE RESULT THAT A FAIR AND
RELIABLE ELECTION CANNOT BE HAD."  NLRB V. LOGAN PACKING CO., 386 F.2D
562, 570 (C.A. 4TH CIR. 1967); SEE ALSO NLRB V. HECK'S, INC., 398 F.2D
337, 338.  THE BOARD ITSELF, WE SHOULD ADD, HAS LONG HAD A SIMILAR
POLICY OF ISSUING A BARGAINING ORDER, IN THE ABSENCE OF A SEC. 8(A)(5)
VIOLATION OR EVEN A BARGAINING DEMAND, WHEN THAT WAS THE ONLY
AVAILABLE, EFFECTIVE REMEDY FOR SUBSTANTIAL UNFAIR LABOR PRACTICES. 
SEE, E.G., UNITED STEELWORKERS OF AMERICA V. NLRB, 126 U.S.APP.D.C.
215, 376 F.2D 770 (1967); J. C. PENNEY CO., INC. V. NLRB, 384 F.2D 479,
485-486 (C.A. 10TH CIR. 1967). 

THE ONLY EFFECT OF OUR HOLDING HERE IS TO APPROVE THE BOARD'S USE OF
THE BARGAINING ORDER IN LESS EXTRAORDINARY CASES MARKED BY LESS
PERVASIVE PRACTICES WHICH NONETHELESS STILL HAVE THE TENDENCY TO
UNDERMINE MAJORITY STRENGTH AND IMPEDE THE ELECTION PROCESSES.  THE
BOARD'S AUTHORITY TO ISSUE SUCH AN ORDER ON A LESSER SHOWING OF
EMPLOYER MISCONDUCT IS APPROPRIATE, WE SHOULD RE-EMPHASIZE, WHERE THERE
IS ALSO A SHOWING THAT AT ONE POINT THE UNION HAD A MAJORITY; IN SUCH A
CASE, OF COURSE, EFFECTUATING ASCERTAINABLE EMPLOYEE FREE CHOICE
BECOMES AS IMPORTANT A GOAL AS DETERRING EMPLOYER MISBEHAVIOR.  IN
FASHIONING A REMEDY IN THE EXERCISE OF ITS DISCRETION, THEN, THE BOARD
CAN PROPERLY TAKE INTO CONSIDERATION THE EXTENSIVENESS OF AN EMPLOYER'S
UNFAIR PRACTICES IN TERMS OF THEIR PAST EFFECT ON ELECTION CONDITIONS
AND THE LIKELIHOOD OF THEIR RECURRENCE IN THE FUTURE.  IF THE BOARD
FINDS THAT THE POSSIBILITY OF ERASING THE EFFECTS OF PAST PRACTICES AND
OF ENSURING A FAIR ELECTION (OR A FAIR RERUN) BY THE USE OF TRADITIONAL
REMEDIES, THOUGH PRESENT, IS SLIGHT AND THAT EMPLOYEE SENTIMENT ONCE
EXPRESSED THROUGH CARDS WOULD, ON BALANCE, BE BETTER PROTECTED BY A
BARGAINING ORDER, THEN SUCH AN ORDER SHOULD ISSUE (SEE N. 32, SUPRA). 

WE EMPHASIZE THAT UNDER THE BOARD'S REMEDIAL POWER THERE IS STILL A
THIRD CATEGORY OF MINOR OR LESS EXTENSIVE UNFAIR LABOR PRACTICES,
WHICH, BECAUSE OF THEIR MINIMAL IMPACT ON THE ELECTION MACHINERY, WILL
NOT SUSTAIN A BARGAINING ORDER.  THERE IS, THE BOARD SAYS, NO PER SE
RULE THAT THE COMMISSION OF ANY UNFAIR PRACTICE WILL AUTOMATICALLY
RESULT IN A SEC. 8(A)(5) VIOLATION AND THE ISSUANCE OF AN ORDER TO
BARGAIN.  SEE AARON BROTHERS, SUPRA. 

WITH THESE CONSIDERATIONS IN MIND, WE TURN TO AN EXAMINATION OF THE
ORDERS IN THESE CASES.  IN SINCLAIR, NO. 585, THE BOARD MADE A FINDING,
LEFT UNDISTURBED BY THE FIRST CIRCUIT, THAT THE EMPLOYER'S THREATS OF
REPRISAL WERE SO COERCIVE THAT, EVEN IN THE ABSENCE OF A SEC. 8(A)(5)
VIOLATION, A BARGAINING ORDER WOULD HAVE BEEN NECESSARY TO REPAIR THE
UNLAWFUL EFFECT OF THOSE THREATS.  /34/  THE BOARD THEREFORE DID NOT
HAVE TO MAKE THE DETERMINATION CALLED FOR IN THE INTERMEDIATE SITUATION
ABOVE THAT THE RISKS THAT A FAIR RERUN ELECTION MIGHT NOT BE POSSIBLE
WERE TOO GREAT TO DISREGARD THE DESIRES OF THE EMPLOYEES ALREADY
EXPRESSED THROUGH THE CARDS.  THE EMPLOYER ARGUES, HOWEVER, THAT ITS
COMMUNICATIONS TO ITS EMPLOYEES WERE PROTECTED BY THE FIRST AMENDMENT
AND SEC. 8(C) OF THE ACT (29 U.S.C. 158(C)), WHATEVER THE EFFECT OF
THOSE COMMUNICATIONS ON THE UNION'S MAJORITY OR THE BOARD'S ABILITY TO
ENSURE A FAIR ELECTION; IT IS TO THAT CONTENTION THAT WE SHALL DIRECT
OUR FINAL ATTENTION IN THE NEXT SECTION. 

IN THE THREE CASES IN NOS. 573 AND 691 FROM THE FOURTH CIRCUIT, ON
THE OTHER HAND, THE BOARD DID NOT MAKE A SIMILAR FINDING THAT A
BARGAINING ORDER WOULD HAVE BEEN NECESSARY IN THE ABSENCE OF AN
UNLAWFUL REFUSAL TO BARGAIN.  NOR DID IT MAKE A FINDING THAT, EVEN
THOUGH TRADITIONAL REMEDIES MIGHT BE ABLE TO ENSURE A FAIR ELECTION,
THERE WAS INSUFFICIENT INDICATION THAT AN ELECTION (OR A RERUN IN
GENERAL STEEL) WOULD DEFINITELY BE A MORE RELIABLE TEST OF THE
EMPLOYEES' DESIRES THAN THE CARD COUNT TAKEN BEFORE THE UNFAIR LABOR
PRACTICES OCCURRED.  THE EMPLOYEES ARGUE THAT SUCH FINDINGS WOULD NOT
BE WARRANTED, AND THE COURT BELOW RULED IN GENERAL STEEL THAT AVAILABLE
REMEDIES SHORT OF A BARGAINING ORDER COULD GUARANTEE A FAIR ELECTION. 
398 F.2D 339, 340, N. 3.  WE THINK IT POSSIBLE THAT THE REQUISITE
FINDINGS WERE IMPLICIT IN THE BOARD'S DECISIONS BELOW TO ISSUE
BARGAINING ORDERS (AND TO SET ASIDE THE ELECTION IN GENERAL STEEL); AND
WE THINK IT CLEARLY INAPPROPRIATE FOR THE COURT BELOW TO MAKE ANY
CONTRARY FINDING ON ITS OWN (SEE N. 32, SUPRA).  BECAUSE THE BOARD'S
CURRENT PRACTICE AT THE TIME REQUIRED IT TO PHRASE ITS FINDINGS IN
TERMS OF AN EMPLOYER'S GOOD OR BAD FAITH DOUBTS (SEE PART II, SUPRA),
HOWEVER, THE PRECISE ANALYSIS THE BOARD NOW PUTS FORTH WAS NOT EMPLOYED
BELOW, AND WE THEREFORE REMAND THESE CASES FOR PROPER FINDINGS. 
IV. 

WE CONSIDER FINALLY PETITIONER SINCLAIR'S FIRST AMENDMENT CHALLENGE
TO THE HOLDING OF THE BOARD AND THE COURT OF APPEALS FOR THE FIRST
CIRCUIT.  AT THE OUTSET WE NOTE THAT THE QUESTION RAISED HERE MOST
OFTEN ARISES IN THE CONTEXT OF A NASCENT UNION ORGANIZATIONAL DRIVE,
WHERE EMPLOYERS MUST BE CAREFUL IN WAGING THEIR ANTIUNION CAMPAIGN.  AS
TO CONDUCT GENERALLY, THE ABOVE-NOTED GRADATIONS OF UNFAIR LABOR
PRACTICES, WITH THEIR VARYING CONSEQUENCES, CREATE CERTAIN HAZARDS FOR
EMPLOYERS WHEN THEY SEEK TO ESTIMATE OR RESIST UNIONIZATION EFFORTS. 
BUT SO LONG AS THE DIFFERENCES INVOLVE CONDUCT EASILY AVOIDED, SUCH AS
DISCHARGE, SURVEILLANCE, AND COERCIVE INTERROGATION, WE DO NOT THINK
THAT EMPLOYERS CAN COMPLAIN THAT THE DISTINCTIONS ARE UNREASONABLY
DIFFICULT TO FOLLOW.  WHERE AN EMPLOYER'S ANTIUNION EFFORTS CONSIST OF
SPEECH ALONE, HOWEVER, THE DIFFICULTIES RAISED ARE NOT SO EASILY
RESOLVED.  THE BOARD HAS ELIMINATED SOME OF THE PROBLEM AREAS BY NO
LONGER REQUIRING AN EMPLOYER TO SHOW AFFIRMATIVE REASONS FOR INSISTING
ON AN ELECTION AND BY PERMITTING HIM TO MAKE REASONABLE INQUIRIES.  WE
DO NOT DECIDE, OF COURSE, WHETHER THESE ALLOWANCES ARE MANDATORY.  BUT
WE DO NOTE THAT AN EMPLOYER'S FREE SPEECH RIGHT TO COMMUNICATE HIS
VIEWS TO HIS EMPLOYEES IS FIRMLY ESTABLISHED AND CANNOT BE INFRINGED BY
A UNION OR THE BOARD.  THUS, SEC. 8(C) (29 U.S.C. 158(C)) MERELY
IMPLEMENTS THE FIRST AMENDMENT BY REQUIRING THAT THE EXPRESSION OF "ANY
VIEWS, ARGUMENT, OR OPINION" SHALL NOT BE "EVIDENCE OF AN UNFAIR LABOR
PRACTICE," SO LONG AS SUCH EXPRESSION CONTAINS "NO THREAT OF REPRISAL
OR FORCE OR PROMISE OF BENEFIT" IN VIOLATION OF SEC. 8(A)(1).  SECTION
8(A)(1), IN TURN, PROHIBITS INTERFERENCE, RESTRAINT OR COERCION OF
EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION. 

ANY ASSESSMENT OF THE PRECISE SCOPE OF EMPLOYER EXPRESSION, OF
COURSE, MUST BE MADE IN THE CONTEXT OF ITS LABOR RELATIONS SETTING. 
THUS, AN EMPLOYER'S RIGHTS CANNOT OUTWEIGH THE EQUAL RIGHTS OF THE
EMPLOYEES TO ASSOCIATE FREELY, AS THOSE RIGHTS ARE EMBODIED IN SEC. 7
AND PROTECTED BY SEC. 8(A)(1) AND THE PROVISO TO SEC. 8(C).  AND ANY
BALANCING OF THOSE RIGHTS MUST TAKE INTO ACCOUNT THE ECONOMIC
DEPENDENCE OF THE EMPLOYEES ON THEIR EMPLOYERS, AND THE NECESSARY
TENDENCY OF THE FORMER, BECAUSE OF THAT RELATIONSHIP, TO PICK UP
INTENDED IMPLICATIONS OF THE LATTER THAT MIGHT BE MORE READILY
DISMISSED BY A MORE DISINTERESTED EAR.  STATING THESE OBVIOUS
PRINCIPLES IS BUT ANOTHER WAY OF RECOGNIZING THAT WHAT IS BASICALLY AT
STAKE IS THE ESTABLISHMENT OF A NONPERMANENT, LIMITED RELATIONSHIP
BETWEEN THE EMPLOYER, HIS ECONOMICALLY DEPENDENT EMPLOYEE AND HIS UNION
AGENT, NOT THE ELECTION OF LEGISLATORS OR THE ENACTMENT OF LEGISLATION
WHEREBY THAT RELATIONSHIP IS ULTIMATELY DEFINED AND WHERE THE
INDEPENDENT VOTER MAY BE FREER TO LISTEN MORE OBJECTIVELY AND EMPLOYERS
AS A CLASS FREER TO TALK.  CF. NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254 (1964). 

WITHIN THIS FRAMEWORK, WE MUST REJECT THE COMPANY'S CHALLENGE TO THE
DECISION BELOW AND THE FINDINGS OF THE BOARD ON WHICH IT WAS BASED. 
THE STANDARDS USED BELOW FOR EVALUATING THE IMPACT OF AN EMPLOYER'S
STATEMENTS ARE NOT SERIOUSLY QUESTIONED BY PETITIONER AND WE SEE NO
NEED TO TAMPER WITH THEM HERE.  THUS, AN EMPLOYER IS FREE TO
COMMUNICATE TO HIS EMPLOYEES ANY OF HIS GENERAL VIEWS ABOUT UNIONISM OR
ANY OF HIS SPECIFIC VIEWS ABOUT A PARTICULAR UNION, SO LONG AS THE
COMMUNICATIONS DO NOT CONTAIN A "THREAT OF REPRISAL OR FORCE OR PROMISE
OF BENEFIT."  HE MAY EVEN MAKE A PREDICTION AS TO THE PRECISE EFFECTS
HE BELIEVES UNIONIZATION WILL HAVE ON HIS COMPANY.  IN SUCH A CASE,
HOWEVER, THE PREDICTION MUST BE CAREFULLY PHRASED ON THE BASIS OF
OBJECTIVE FACT TO CONVEY AN EMPLOYER'S BELIEF AS TO DEMONSTRABLY
PROBABLE CONSEQUENCES BEYOND HIS CONTROL OR TO CONVEY A MANAGEMENT
DECISION ALREADY ARRIVED AT TO CLOSE THE PLANT IN CASE OF
UNIONIZATION.  SEE TEXTILE WORKERS V. DARLINGTON MFG. CO., 380 U.S.
263, 274, N. 20 (1965).  IF THERE IS ANY IMPLICATION THAT AN EMPLOYER
MAY OR MAY NOT TAKE ACTION SOLELY ON HIS OWN INITIATIVE FOR REASONS
UNRELATED TO ECONOMIC NECESSITIES AND KNOWN ONLY TO HIM, THE STATEMENT
IS NO LONGER A REASONABLE PREDICTION BASED ON AVAILABLE FACTS BUT A
THREAT OF RETALIATION BASED ON MISREPRESENTATION AND COERCION, AND AS
SUCH WITHOUT THE PROTECTION OF THE FIRST AMENDMENT.  WE THEREFORE AGREE
WITH THE COURT BELOW THAT "(CONVEYANCE OF THE EMPLOYER'S BELIEF, EVEN
THOUGH SINCERE, THAT UNIONIZATION WILL OR MAY RESULT IN THE CLOSING OF
THE PLANT IS NOT A STATEMENT OF FACT UNLESS, WHICH IS MOST IMPROBABLE,
THE EVENTUALITY OF CLOSING IS CAPABLE OF PROOF."  397 F.2D 157, 160. 
AS STATED ELSEWHERE, AN EMPLOYER IS FREE ONLY TO TELL "WHAT HE
REASONABLY BELIEVES WILL BE THE LIKELY ECONOMIC CONSEQUENCES OF
UNIONIZATION THAT ARE OUTSIDE HIS CONTROL," AND NOT "THREATS OF
ECONOMIC REPRISAL TO BE TAKEN SOLELY ON HIS OWN VOLITION."  NLRB V.
RIVER TOGS, INC., 382 F.2D 198, 202 (C.A. 2D CIR. 1967). 

EQUALLY VALID WAS THE FINDING BY THE COURT AND THE BOARD THAT
PETITIONER'S STATEMENTS AND COMMUNICATIONS WERE NOT CAST AS A
PREDICTION OF "DEMONSTRABLE 'ECONOMIC CONSEQUENCES,'" 397 F.2D,AT 160,
BUT RATHER AS A THREAT OF RETALIATORY ACTION.  THE BOARD FOUND THAT
PETITIONER'S SPEECHES, PAMPHLETS, LEAFLETS, AND LETTERS CONVEYED THE
FOLLOWING MESSAGE:  THAT THE COMPANY WAS IN A PRECARIOUS FINANCIAL
CONDITION; THAT THE "STRIKE-HAPPY" UNION WOULD IN ALL LIKELIHOOD HAVE
TO OBTAIN ITS POTENTIALLY UNREASONABLE DEMANDS BY STRIKING, THE
PROBABLE RESULT OF WHICH WOULD BE A PLANT SHUTDOWN, AS THE PAST HISTORY
OF LABOR RELATIONS IN THE AREA INDICATED; AND THAT THE EMPLOYEES IN
SUCH A CASE WOULD HAVE GREAT DIFFICULTY FINDING EMPLOYMENT ELSEWHERE. 
IN CARRYING OUT ITS DUTY TO FOCUS ON THE QUESTION:  "(WHAT DID THE
SPEAKER INTEND AND THE LISTENER UNDERSTAND?"  (A. COX, LAW AND THE
NATIONAL LABOR POLICY 44 (1960)), THE BOARD COULD REASONABLY CONCLUDE
THAT THE INTENDED AND UNDERSTOOD IMPORT OF THAT MESSAGE WAS NOT TO
PREDICT THAT UNIONIZATION WOULD INEVITABLY CAUSE THE PLANT TO CLOSE BUT
TO THREATEN TO THROW EMPLOYEES OUT OF WORK REGARDLESS OF THE ECONOMIC
REALITIES.  IN THIS CONNECTION, WE NEED GO NO FURTHER THAN TO POINT OUT
(1) THAT PETITIONER HAD NO SUPPORT FOR ITS BASIC ASSUMPTION THAT THE
UNION, WHICH HAD NOT YET EVEN PRESENTED ANY DEMANDS, WOULD HAVE TO
STRIKE TO BE HEARD, AND THAT IT ADMITTED AT THE HEARING THAT IT HAD NO
BASIS FOR ATTRIBUTING OTHER PLANT CLOSINGS IN THE AREA TO UNIONISM; AND
(2) THAT THE BOARD HAS OFTEN FOUND THAT EMPLOYEES, WHO ARE PARTICULARLY
SENSITIVE TO RUMORS OF PLANT CLOSINGS, /35/  TAKE SUCH HINTS AS
COERCIVE THREATS RATHER THAN HONEST FORECASTS.  /36/ 

PETITIONER ARGUES THAT THE LINE BETWEEN SO-CALLED PERMITTED
PREDICTIONS AND PROSCRIBED THREATS IS TOO VAGUE TO STAND UP UNDER
TRANDITIONAL FIRST AMENDMENT ANALYSIS AND THAT THE BOARD'S DISCRETION
TO CURTAIL FREE SPEECH RIGHTS IS CORRESPONDINGLY TOO UNCONTROLLED.  IT
IS TRUE THAT A REVIEWING COURT MUST RECOGNIZE THE BOARD'S COMPETENCE IN
THE FIRST INSTANCE TO JUDGE THE IMPACT OF UTTERANCES MADE IN THE
CONTEXT OF THE EMPLOYER-EMPLOYEE RELATIONSHIP, SEE NLRB V. VIRGINIA
ELECTRIC & POWER CO., 314 U.S. 469, 479 (1941).  BUT AN EMPLOYER, WHO
HAS CONTROL OVER THAT RELATIONSHIP AND THEREFORE KNOWS IT BEST, CANNOT
BE HEARD TO COMPLAIN THAT HE IS WITHOUT AN ADEQUATE GUIDE FOR HIS
BEHAVIOR.  HE CAN EASILY MAKE HIS VIEWS KNOWN WITHOUT ENGAGING IN
"'BRINKMANSHIP'" WHEN IT BECOMES ALL TOO EASY TO "OVERSTEP AND TUMBLE
(OVER) THE BRINK," WAUSAU STEEL CORP. V. NLRB, 377 F.2D 369, 372 (C.A.
7TH CIR. 1967).  AT THE LEAST HE CAN AVOID COERCIVE SPEECH SIMPLY BE
AVOIDING CONSCIOUS OVERSTATEMENTS HE HAS REASON TO BELIEVE WILL MISLEAD
HIS EMPLOYEES. 

FOR THE FOREGOING REASONS, WE AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS FOR THE FIRST CIRCUIT IN NO. 585, AND WE REVERSE THE JUDGMENTS
OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT IN NOS. 573 AND 691
INSOFAR AS THEY DECLINE ENFORCEMENT OF THE BOARD'S ORDERS TO BARGAIN
AND REMAND THOSE CASES TO THAT COURT WITH DIRECTIONS TO REMAND TO THE
BOARD FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 691, FOOD STORE EMPLOYEES UNION, LOCAL NO.
347, AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL
CIO V. GISSEL PACKING CO., INC., ALSO ON CERTIORARI TO THE SAME COURT,
ARGUED MARCH 26, 1969, AND NO. 585, SINCLAIR CO. V. NATIONAL LABOR
RELATIONS BOARD, ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT, ARGUED MARCH 26-27, 1969. 

/1A/  AT THE OUTSET OF THE UNION CAMPAIGN, THE COMPANY VICE
PRESIDENT INFORMED TWO EMPLOYEES, LATER DISCHARGED, THAT IF THEY WERE
CAUGHT TALKING TO UNION MEN, "YOU GOD-DAMNED THINGS WILL GO." 
SUBSEQUENTLY, THE UNION PRESENTED ORAL AND WRITTEN DEMANDS FOR
RECOGNITION, CLAIMING POSSESSION OF AUTHORIZATION CARDS FROM 31 OF THE
47 EMPLOYEES IN THE APPROPRIATE UNIT.  REJECTING THE BARGAINING DEMAND,
THE COMPANY BEGAN TO INTERROGATE EMPLOYEES AS TO THEIR UNION
ACTIVITIES; TO PROMISE THEM BETTER BENEFITS THAN THE UNION COULD OFFER;
AND TO WARN THEM THAT IF THE "UNION GOT IN, (THE VICE PRESIDENT) WOULD
JUST TAKE HIS MONEY AND LET THE UNION RUN THE PLACE," THAT THE UNION
WAS NOT GOING TO GET IN, AND THAT IT WOULD HAVE TO "FIGHT" THE COMPANY
FIRST.  FURTHER, WHEN THE COMPANY LEARNED OF AN IMPENDING UNION
MEETING, IT ARRANGED, SO THE BOARD LATER FOUND, TO HAVE AN AGENT
PRESENT TO REPORT THE IDENTITY OF THE UNION'S ADHERENTS.  ON THE FIRST
DAY FOLLOWING THE MEETING, THE VICE PRESIDENT TOLD THE TWO EMPLOYEES
REFERRED TO ABOVE THAT HE KNEW THEY HAD GONE TO THE MEETING AND THAT
THEIR WORK HOURS WERE HENCEFORTH REDUCED TO HALF A DAY.  THREE HOURS
LATER, THE TWO EMPLOYEES WERE DISCHARGED. 

/2/  THE ORGANIZING DRIVE WAS INITIATED BY THE EMPLOYEES THEMSELVES
AT HECK'S CHARLESTON WAREHOUSES.  THE UNION FIRST DEMANDED RECOGNITION
ON THE BASIS OF 13 CARDS FROM 26 EMPLOYEES OF THE COMPANY'S THREE
CHARLESTON WAREHOUSES.  AFTER RESPONDING "NO COMMENT" TO THE UNION'S
REPEATED REQUESTS FOR RECOGNITION, THE PRESIDENT ASSEMBLED THE
EMPLOYEES AND TOLD THEM OF HIS SHOCK AT THEIR SELECTION OF THE UNION;
HE SINGLED OUT ONE OF THE EMPLOYEES TO ASK IF HE HAD SIGNED AN
AUTHORIZATION CARD.  THE NEXT DAY THE UNION OBTAINED THE ADDITIONAL
CARD NECESSARY TO ESTABLISH A MAJORITY.  THAT SAME DAY, THE LEADING
UNION SUPPORTER (THE EMPLOYEE WHO HAD FIRST ESTABLISHED CONTRACTS WITH
THE UNION AND HAD SOLICITED A LARGE NUMBER OF THE CARDS) WAS
DISCHARGED, AND ANOTHER EMPLOYEE WAS INTERROGATED AS TO HIS UNION
ACTIVITIES, ENCOURAGED TO WITHDRAW HIS AUTHORIZATION, AND WARNED THAT A
UNION VICTORY COULD RESULT IN REDUCED HOURS, FEWER RAISES, AND
WITHDRAWAL OF BONUSES.  A SECOND DEMAND FOR RECOGNITION WAS MADE TWO
DAYS LATER, AND THEREAFTER THE PRESIDENT SUMMONED TWO KNOWN UNION
SUPPORTERS TO HIS OFFICE AND OFFERED THEM NEW JOBS AT HIGHER PAY IF
THEY WOULD USE THEIR INFLUENCE TO "BREAK UP THE UNION." 

THE SAME PATTERN WAS REPEATED A YEAR LATER AT THE COMPANY'S ASHLAND,
KENTUCKY, STORE, WHERE THE UNION OBTAINED CARDS FROM 21 OF THE 38
EMPLOYEES BY OCTOBER 5, 1965.  THE NEXT DAY, THE ASSISTANT STORE
MANAGER TOLD AN EMPLOYEE THAT HE KNEW THAT THE UNION HAD ACQUIRED
MAJORITY STATUS.  WHEN THE UNION REQUESTED RECOGNITION ON OCTOBER 8,
HOWEVER, THE COMPANY REFUSED ON THE GROUND THAT IT WAS NOT SURE WHETHER
DEPARTMENT HEADS WERE INCLUDED IN THE BARGAINING UNIT-- EVEN THOUGH THE
CARDS REPRESENTED A MAJORITY WITH OR WITHOUT THE DEPARTMENT HEADS. 
AFTER A SECOND REQUEST FOR RECOGNITION AND AN OFFER TO SUBMIT THE CARDS
TO THE EMPLOYER FOR VERIFICATION, RESPONDENT AGAIN REFUSED, ON GROUNDS
OF UNCERTAINTY ABOUT THE DEFINITION OF THE UNIT AND BECAUSE A POLL
TAKEN BY THE COMPANY SHOWED THAT A MAJORITY OF THE EMPLOYEES DID NOT
WANT UNION REPRESENTATION.  MEANWHILE, THE COMPANY TOLD THE EMPLOYEES
THAT AN EMPLOYEE OF ANOTHER COMPANY STORE HAD BEEN FIRED ON THE SPOT
FOR SIGNING A CARD, WARNED EMPLOYEES THAT THE COMPANY KNEW WHICH ONES
HAD SIGNED CARDS, AND POLLED EMPLOYEES ABOUT THEIR DESIRE FOR UNION
REPRESENTATION WITHOUT GIVING THEM ASSURANCES AGAINST REPRISALS. 

/3/  THROUGHOUT THE UNION'S SIX-MONTH ORGANIZATIONAL CAMPAIGN-- BOTH
BEFORE AND AFTER ITS DEMAND FOR RECOGNITION BASED ON POSSESSION OF
CARDS FROM 120 OF THE 207 EMPLOYEES IN THE APPROPRIATE UNIT-- THE
COMPANY'S FOREMEN AND SUPERVISORS INTERROGATED EMPLOYEES ABOUT THEIR
UNION INVOLVEMENT; THREATENED THEM WITH DISCHARGE FOR ENGAGING IN UNION
ACTIVITIES OR VOTING FOR THE UNION; SUGGESTED THAT UNIONIZATION MIGHT
HURT BUSINESS AND MAKE NEW JOBS MORE DIFFICULT TO OBTAIN; WARNED THAT
STRIKES AND OTHER DIRE ECONOMIC CONSEQUENCES WOULD RESULT (A SUPERVISOR
INFORMED A GROUP OF EMPLOYEES THAT IF THE UNION CAME IN, "A NIGGER
WOULD BE THE HEAD OF IT," AND THAT WHEN THE COMPANY PUT IN 10 NEW
MACHINES, "THE NIGGERS WOULD BE THE OPERATORS OF THEM"); AND ASSERTED
THAT, ALTHOUGH THE COMPANY WOULD HAVE TO NEGOTIATE WITH THE UNION, IT
COULD NEGOTIATE ENDLESSLY AND WOULD NOT HAVE TO SIGN ANYTHING. 

/4/  THE CARDS USED IN ALL FOUR CAMPAIGNS IN NOS. 573 AND 691 AND IN
THE ONE DRIVE IN NO. 585 UNAMBIGUOUSLY AUTHORIZED THE UNION TO
REPRESENT THE SIGNING EMPLOYEE FOR COLLECTIVE BARGAINING PURPOSES;
THERE WAS NO REFERENCE TO ELECTIONS.  TYPICAL OF THE CARDS WAS THE ONE
USED IN CHARLESTON CAMPAIGN IN HECK'S, AND IT STATED IN RELEVANT PART: 
"DESIRING TO BECOME A MEMBER OF THE ABOVE UNION OF THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, I HEREBY MAKE APPLICATION FOR ADMISSTION TO MEMBERSHIP.  I
HEREBY AUTHORIZE YOU, YOUR AGENTS OR REPRESENTATIVES TO ACT FOR ME AS
COLLECTIVE BARGAINING AGENT ON ALL MATTERS PERTAINING TO RATES OF PAY,
HOURS, OR ANY OTHER CONDITIONS OF EMPLOYMENT." 

/5/  "ACCORDINGLY, I REJECT RESPONDENT'S CONTENTION 'THAT IF A MAN
IS TOLD THAT HIS CARD WILL BE SECRET, OR WILL BE SHOWN ONLY TO THE
LABOR BOARD FOR THE PURPOSE OF OBTAINING ELECTION, THAT THIS IS THE
ABSOLUTE EQUIVALENT OF TELLING HIM THAT IT WILL BE USED "ONLY" FOR
PURPOSES OF OBTAINING AN ELECTION.' 

        .          .          .          . 

"WITH RESPECT TO THE 97 EMPLOYEES NAMED IN THE ATTACHED APPENDIX B
RESPONDENT IN ITS BRIEF CONTENDS, IN SUBSTANCE, THAT THEIR CARDS SHOULD
BE REJECTED BECAUSE EACH OF THESE EMPLOYEES WAS TOLD ONE OR MORE OF THE
FOLLOWING:  (1) THAT THE CARD WOULD BE USED TO GET AN ELECTION (2) THAT
HE HAD THE RIGHT TO VOTE EITHER WAY, EVEN THOUGH HE SIGNED THE CARD (3)
THAT THE CARD WOULD BE KEPT SECRET AND NOT SHOWN TO ANYBODY EXCEPT TO
THE BOARD IN ORDER TO GET AN ELECTION.  FOR REASONS HERETOFORE
EXPLICATED, I CONCLUDE THAT THESE STATEMENTS, SINGLY OR JOINTLY, DO NOT
FORECLOSE USE OF THE CARDS FOR THE PURPOSE DESIGNATED ON THEIR FACE." 

/6/  SEE, E.G., JOY SILK MILLS, INC. V. NLRB, 87 U.S.APP.D.C. 360,
185 F.2D 732 (1950), CERT. DENIED, 341 U.S. 914 (1951); NLRB V. GOTHAM
SHOE MFG. CO., INC., 359 F.2D 684 (C.A. 2D CIR. 1966); NLRB V. QUALITY
MARKETS, INC., 387 F.2D 20 (C.A. 3D CIR. 1967); NLRB V. PHIL-MODES,
INC., 396 F.2D 131 (C.A. 5TH CIR. 1968); ATLAS ENGINE WORKS, INC. V.
NLRB, 396 F.2D 775 (C.A. 6TH CIR. 1968), PETITION FOR CERTIORARI
PENDING; NLRB V. CLARK PRODUCTS, INC., 385 F.2D 396 (C.A. 7TH CIR.
1967); NLRB V. RALPH PRINTING & LITHOGRAPHING CO., 379 F.2D 687 (C.A.
8TH CIR. 1967); NLRB V. LUISI TRUCK LINES, 384 F.2D 842 (C.A. 9TH CIR.
1967); FURR'S, INC., V. NLRB, 381 F.2D 562 (C.A. 10TH CIR.), CERT.
DENIED, 389 U.S. 840 (1967). 

IN ADDITION TO THE FIRST CIRCUIT BELOW, FOUR COURTS OF APPEALS HAVE
SUBSEQUENTLY CONSIDERED THE FOURTH CIRCUIT'S VIEW OF THE CARDS AND
SPECIFICALLY REJECTED IT.  NLRB V. UNITED MINERAL & CHEMICAL CORP., 391
F.2D 829, 836, N. 10 (C.A. 2D CIR. 1968); NLRB V. GOODYEAR TIRE &
RUBBER CO., 394 F.2D 711, 712-713 (C.A. 5TH CIR. 1968); NLRB V. ATCO
SURGICAL SUPPORTS, 394 F.2D 659, 660 (C.A. 6TH CIR. 1968); NLRB V.
OZARK MOTOR LINES, 403 F.2D 356 (C.A. 8TH CIR. 1968). 

/7/  IN 1967, FOR INSTANCE, THE BOARD CONDUCTED 8,116 ELECTIONS BUT
ISSUED ONLY 157 BARGAINING ORDERS BASED ON A CARD MAJORITY.  LEVI
STRAUSS & CO., 172 N.L.R.B.NO. 57, 68 L.R.R.M. 1338, 1342, N. 9
(1968).  SEE ALSO SHEINKMAN, RECOGNITION OF UNIONS THROUGH
AUTHORIZATION CARDS, 3 GA.L.REV.  319 (1969).  THE NUMBER OF CARD CASES
THAT YEAR, HOWEVER, REPRESENTS A RATHER DRAMATIC INCREASE OVER PREVIOUS
YEARS, FROM 12 SUCH CASES IN 1964, 24 IN 1965AND ABOUT 117 IN 1966. 
BROWNE, OBLIGATIONS TO BARGAIN ON BASIS OF CARD MAJORITY, 3 GA.L.REV. 
334, 347 (1969). 

/8/  SEE, E.G., AARON BROTHERS, 158 N.L.R.B. 1077 (1966); CF.,
GENERAL SHOE CORP., 77 N.L.R.B. 124 (1948).  AN EMPLOYER, OF COURSE,
MAY NOT, EVEN IF HE ACTS IN GOOD FAITH, RECOGNIZE A MINORITY UNION,
GARMENT WORKERS' UNION V. NLRB, 366 U.S. 731 (1961). 

/9/  NLRB V. DAHLSTROM METALLIC DOOR CO., 112 F.2D 756, 757 (C.A. 2D
CIR. 1940). 

/10/  SEE, E.G., DENVER AUTO DEALERS ASSN., 10 N.L.R.B. 1173 (1939);
CENTURY MILLS, INC., 5 N.L.R.B. 807 (1938). 

/11/  THE RIGHT OF AN EMPLOYER LAWFULLY TO REFUSE TO BARGAIN IF HE
HAD A GOOD FAITH DOUBT AS TO THE UNION'S MAJORITY STATUS, EVEN IF IN
FACT THE UNION DID REPRESENT A MAJORITY, WAS RECOGNIZED EARLY IN THE
ADMINISTRATION OF THE ACT, SEE NLRB V. REMINGTON RAND, INC., 94 F.2D
862, 868 (C.A. 2D CIR.), CERT. DENIED, 304 U.S. 576 (1938). 

/12/  SEE N. 11, SUPRA. 

/13/  SECTION 9(C) OF THE WAGNER ACT HAD PROVIDED: 

"WHENEVER A QUESTION AFFECTING COMMERCE ARISES CONCERNING THE
REPRESENTATION OF EMPLOYEES, THE BOARD MAY INVESTIGATE SUCH CONTROVERSY
AND CERTIFY . . . THE NAME OR NAMES OF THE REPRESENTATIVES THAT HAVE
BEEN DESIGNATED OR SELECTED.  IN ANY SUCH INVESTIGATION, THE BOARD . .
. MAY TAKE A SECRET BALLOT OF EMPLOYEES, OR UTILIZE ANY OTHER SUITABLE
METHOD TO ASCERTAIN SUCH REPRESENTATIVES." 

/14/  E.G., PROTECTION AGAINST THE FILING OF NEW ELECTION PETITIONS
BY RIVAL UNIONS OR EMPLOYEES SEEKING DECERTIFICATION FOR 12 MONTHS
(SEC. 9(C)(3)), PROTECTION FOR A REASONABLE PERIOD, USUALLY ONE YEAR,
AGAINST ANY DISRUPTION OF THE BARGAINING RELATIONSHIP BECAUSE OF CLAIMS
THAT THE UNION NO LONGER REPRESENTS A MAJORITY (SEE BROOKS V. NLRB, 348
U.S. 96 (1954)), PROTECTION AGAINST RECOGNITIONAL PICKETING BY RIVAL
UNIONS (SEC. 8(B)(4)(C)), AND FREEDOM FROM THE RESTRICTIONS PLACED IN
WORK ASSIGNMENTS DISPUTES BY SEC. 8(B)(4)(D), AND ON RECOGNITIONAL AND
ORGANIZATIONAL PICKETING BY SEC. 8(B)(7). 

/15/  UNDER THE WAGNER ACT, WHICH DID NOT PRESCRIBE WHO WOULD FILE
ELECTION PETITIONS, THE BOARD HAD RULED THAT AN EMPLOYER COULD SEEK AN
ELECTION ONLY WHEN TWO UNIONS PRESENTED CONFLICTING BARGAINING REQUESTS
ON THE GROUND THAT IF HE WERE GIVEN THE SAME ELECTION PETITION RIGHTS
AS THE UNION, HE COULD INTERRUPT UNION DRIVES BY DEMANDING AN ELECTION
BEFORE THE UNION HAD OBTAINED MAJORITY STATUS.  THE 1947 AMENDMENTS
RESOLVED THE DIFFICULTY BY PROVIDING THAT AN EMPLOYER COULD SEEK AN
ELECTION ONLY AFTER HE HAD BEEN REQUESTED TO BARGAIN.  SEE H.R. REP.
NO. 245, 80TH CONG., 1ST SESS., 35 (1947). 

/16/  THE SENATE REPORT STATED THAT THE "PRESENT BOARD RULES . . .
DISCRIMINATE AGAINST EMPLOYERS WHO HAVE REASONABLE GROUNDS FOR
BELIEVING THAT LABOR ORGANIZATIONS CLAIMING TO REPRESENT THEIR
EMPLOYEES ARE REALLY NOT THE CHOICE OF THE MAJORITY."  S. REP. NO. 105,
80TH CONG., 1ST SESS., 10 (1947).  SENATOR TAFT STATED DURING THE
DEBATES: 

"TODAY AN EMPLOYER IS FACED WITH THIS SITUATION.  A MAN COMES INTO
HIS OFFICE AND SAYS, 'I REPRESENT YOUR EMPLOYEES.  SIGN THIS AGREEMENT,
OR WE STRIKE TOMORROW.'  . . . THE EMPLOYER HAS NO WAY IN WHICH TO
DETERMINE WHETHER THIS MAN REALLY DOES REPRESENT HIS EMPLOYEES OR DOES
NOT.  THE BILL GIVES HIM THE RIGHT TO GO TO THE BOARD . . . AND SAY, 'I
WANT AN ELECTION.  I WANT TO KNOW WHO IS THE BARGAINING AGENT FOR MY
EMPLOYEES.'"  93 CONG.REC.  3838 (1947). 

/17/  AS APTLY STATED IN LESNICK, ESTABLISHMENT OF BARGAINING RIGHTS
WITHOUT AN NLRB ELECTION, 65 MICH.L.REV.  851, 861-862 (1967): 

"CARDS HAVE BEEN USED UNDER THE ACT FOR THIRTY YEARS; (THIS) COURT
HAS REPEATEDLY HELD THAT CERTIFICATION IS NOT THE ONLY ROUTE TO
REPRESENTATIVE STATUS; AND THE 1947 ATTEMPT IN THE HOUSE-PASSED HARTLEY
BILL TO AMEND SECTION 8(A)(5) . . . WAS REJECTED BY THE CONFERENCE
COMMITTEE THAT PRODUCED THE TAFT-HARTLEY ACT.  NO AMOUNT OF DRUM
BEATING SHOULD BE PERMITTED TO OVERCOME, WITHOUT LEGISLATION, THIS
HISTORY." 

/18/  IN DEALING WITH THE RELIABILITY OF CARDS, WE SHOULD RE
EMPHASIZE WHAT ISSUES WE ARE NOT CONFRONTING.  AS POINTED OUT ABOVE, WE
ARE NOT HERE FACED WITH A SITUATION WHERE AN EMPLOYER, WITH "GOOD"  OR
"BAD" SUBJECTIVE MOTIVATION, HAS REJECTED A CARD-BASED BARGAINING
REQUEST WITHOUT GOOD REASON AND HAS INSISTED THAT THE UNION GO TO AN
ELECTION WHILE AT THE SAME TIME REFRAINING FROM COMMITTING UNFAIR LABOR
PRACTICES THAT WOULD TEND TO DISTURB THE "LABORATORY CONDITIONS" OF
THAT ELECTION.  WE THUS NEED NOT DECIDE WHETHER, ABSENT ELECTION
INTERFERENCE BY AN EMPLOYER'S UNFAIR LABOR PRACTICES, HE MAY OBTAIN AN
ELECTION ONLY IF HE PETITIONS FOR ONE HIMSELF; WHETHER, IF HE DOES NOT,
HE MUST BARGAIN WITH A CARD MAJORITY IF THE UNION CHOOSES NOT TO SEEK
AN ELECTION; AND WHETHER, IN THE LATTER SITUATION, HE IS BOUND BY THE
BOARD'S ULTIMATE DETERMINATION OF THE CARD RESULTS REGARDLESS OF HIS
EARLIER GOOD FAITH DOUBTS, OR WHETHER HE CAN STILL INSIST ON A UNION
SOUGHT ELECTION IF HE MAKES AN AFFIRMATIVE SHOWING OF HIS POSITIVE
REASONS FOR BELIEVING THERE IS A REPRESENTATION DISPUTE.  IN SHORT, A
UNION'S RIGHT TO RELY ON CARDS AS A FREELY INTERCHANGEABLE SUBSTITUTE
FOR ELECTIONS WHERE THERE HAS BEEN NO ELECTION INTERFERENCE IS NOT PUT
IN ISSUE HERE; WE NEED ONLY DECIDE WHETHER THE CARDS ARE RELIABLE
ENOUGH TO SUPPORT A BARGAINING ORDER WHERE A FAIR ELECTION PROBABLY
COULD NOT HAVE BEEN HELD, OR WHERE AN ELECTION THAT WAS HELD WAS IN
FACT SET ASIDE. 

/19/  THE BOARD'S RELIANCE ON AUTHORIZATION CARDS HAS PROVOKED
CONSIDERABLE SCHOLARLY CONTROVERSY.  COMPARE CRITICISM OF BOARD POLICY,
PARTICULARLY ITS TREATMENT OF AMBIGUOUS, DUAL-PURPOSE CARDS, IN BROWNE,
SUPRA, N. 7, AND COMMENT, UNION AUTHORIZATION CARDS, 75 YALE L.J. 805
(1966), WITH DEFENSE OF BOARD PRACTICE IN LESNICK, SUPRA, N. 17;
WELLES, THE OBLIGATION TO BARGAIN ON THE BASIS OF A CARD MAJORITY, 3
GA.L.REV.  349 (1969); AND COMMENT, UNION AUTHORIZATION CARDS:  A
RELIABLE BASIS FOR AN NLRB ORDER TO BARGAIN?, 47 TEXAS L.REV.  87
(1968). 

/20/  FOR A COMPARISON OF THE CARD PROCEDURE AND THE ELECTION
PROCESS, SEE DISCUSSION IN NLRB V. LOGAN PACKING CO., 386 F.2D 562, 564
566 (C.A. 4TH CIR. 1967). 

/21/  SEE NN. 7-8, SUPRA. 

/22/  SEE COMMENT, UNION AUTHORIZATION CARDS: A RELIABLE BASIS FOR
AN NLRB ORDER TO BARGAIN?, SUPRA, AT 94 AND N. 32. 

/23/  SEE N. 19, SUPRA. 

/24/  IN THE CHARLESTON CAMPAIGN IN HECK'S, THE EMPLOYEES HANDLED
THE CARD DRIVE THEMSELVES FROM BEGINNING TO END, CONTACTING THE UNION,
OBTAINING THE BLANK AUTHORIZATION CARDS, AND SOLICITING THEIR FELLOW
EMPLOYEES ON THAT BASIS; NO UNION AGENTS WERE INVOLVED IN THE CARD
SIGNING. 

/25/  SEE 1969 CCH GUIDEBOOK TO LABOR RELATIONS PARA. 402.4. 

/26/  CRIMINAL SANCTIONS ARE IMPOSED BY SEC. 302 (29 U.S.C. 186)
WHICH MAKES IT UNLAWFUL FOR AN EMPLOYER TO PAY TO AND FOR A UNION
REPRESENTATIVE TO RECEIVE "ANY MONEY OR OTHER THING OF VALUE."  SECTION
302(C)(4) (29 U.S.C. 186(C)(4)) EXEMPTS PAYMENTS BY EMPLOYERS TO UNION
REPRESENTATIVES OF UNION DUES, HOWEVER, WHERE AN EMPLOYEE HAS EXECUTED
A "WRITTEN ASSIGNMENT" OF THE DUES, I.E., A CHECK-OFF AUTHORIZATION. 
SIGNATURES ARE ALSO RELIED ON IN SEC. 9(C)(1)(A) (29 U.S.C.
159(C)(1)(A)), WHICH PROVIDES FOR BOARD PROCESSING OF REPRESENTATION
AND DECERTIFICATION PETITIONS WHEN EACH IS SUPPORTED BY A "SUBSTANTIAL
NUMBER OF EMPLOYEES" (THE BASIS FOR THE 30% SIGNATURE REQUIREMENT, SEE
N. 25, SUPRA), AND IN SEC. 9(E) WHICH SPECIFICALLY PROVIDES FOR 30% OF
THE SIGNATURES IN THE BARGAINING UNIT TO EMPOWER THE BOARD TO HOLD A
UNION SHOP DE-AUTHORIZATION ELECTION. 

/27/  IN EXPLAINING AND REAFFIRMING THE CUMBERLAND SHOE DOCTRINE IN
THE CONTEXT OF UNAMBIGUOUS CARDS, THE BOARD STATED: 

"THUS THE FACT THAT EMPLOYEES ARE TOLD IN THE COURSE OF SOLICITATION
THAT AN ELECTION IS CONTEMPLATED, OR THAT A PURPOSE OF THE CARD IS TO
MAKE AN ELECTION POSSIBLE, PROVIDES IN OUR VIEW INSUFFICIENT BASIS IN
ITSELF FOR VITIATING UNAMBIGUOUSLY WORDED AUTHORIZATION CARDS ON THE
THEORY OF MISREPRESENTATION.  A DIFFERENT SITUATION IS PRESENTED, OF
COURSE, WHERE UNION ORGANIZERS SOLICIT CARDS ON THE EXPLICIT OR
INDIRECTLY EXPRESSED REPRESENTATION THAT THEY WILL USE SUCH CARDS ONLY
FOR AN ELECTION AND SUBSEQUENTLY SEEK TO USE THEM FOR A DIFFERENT
PURPOSE . . . ."  THE BOARD STATED FURTHER IN A FOOTNOTE: 

"THE FOREGOING DOES NOT OF COURSE IMPLY THAT A FINDING OF
MISREPRESENTATION IS CONFINED TO SITUATIONS WHERE EMPLOYEES ARE
EXPRESSLY TOLD IN HAEC VERBA THAT THE 'SOLE' OR 'ONLY' PURPOSE OF THE
CARDS IS TO OBTAIN AN ELECTION.  THE BOARD HAS NEVER SUGGESTED SUCH A
MECHANISTIC APPLICATION OF THE FOREGOING PRINCIPLES, AS SOME HAVE
CONTENDED.  THE BOARD LOOKS TO SUBSTANCE RATHER THAN TO FORM.  IT IS
NOT THE USE OR NONUSE OF CERTAIN KEY OR 'MAGIC' WORDS THAT IS
CONTROLLING, BUT WHETHER OR NOT THE TOTALITY OF CIRCUMSTANCES
SURROUNDING THE CARD SOLICITATION IS SUCH, AS TO ADD UP TO AN ASSURANCE
TO THE CARD SIGNER THAT HIS CARD WILL BE USED FOR NO PURPOSE OTHER THAN
TO HELP GET AN ELECTION."  172 N.L.R.B.NO. 57, 68 L.R.R.M. 1338, 1341
1342, AND N. 7. 

/28/  SEE SHEINKMAN, SUPRA, N. 7, AT 332-333. 

/29/  SEE JUDGE BROWN'S "SCYLLA AND CHARYBDIS" ANALOGY IN NLRB V.
DAN RIVER MILLS, 274 F.2D 381, 388 (C.A. 5TH CIR. 1960). 

/30/  THE BOARD INDICATES HERE THAT ITS RECORDS SHOW THAT IN THE
PERIOD BETWEEN JANUARY AND JUNE 1968, THE MEDIAN TIME BETWEEN THE
FILING OF AN UNFAIR LABOR PRACTICE CHARGE AND A BOARD DECISION IN A
CONTESTED CASE WAS 388 DAYS.  BUT THE EMPLOYER CAN DO MORE THAN JUST
PUT OFF HIS BARGAINING OBLIGATION BY SEEKING TO SLOW DOWN THE BOARD'S
ADMINISTRATIVE PROCESSES.  HE CAN ALSO AFFECT THE OUTCOME OF A RERUN
ELECTION BY DELAYING TACTICS, FOR FIGURES SHOW THAT THE LONGER THE TIME
BETWEEN A TAINTED ELECTION AND A RERUN, THE LESS ARE THE UNION'S
CHANCES OF REVERSING THE OUTCOME OF THE FIRST ELECTION.  SEE N. 31,
INFRA. 

/31/  A STUDY OF 20,153 ELECTIONS HELD BETWEEN 1960 AND 1962 SHOWS
THAT IN THE 267 CASES WHERE RERUN ELECTIONS WERE HELD OVER 30% WERE WON
BY THE PARTY WHO CAUSED THE ELECTION TO BE SET ASIDE.  SEE POLLITT,
NLRB RE-RUN ELECTIONS:  A STUDY, 41 N.C.L.REV.  209, 212 (1963).  THE
STUDY SHOWS FURTHER THAT CERTAIN UNFAIR LABOR PRACTICES ARE MORE
EFFECTIVE TO DESTROY ELECTION CONDITIONS FOR A LONGER PERIOD OF TIME
THAN OTHERS.  FOR INSTANCE, IN CASES INVOLVING THREATS TO CLOSE OR
TRANSFER PLANT OPERATIONS, THE UNION WON THE RERUN ONLY 29% OF THE
TIME, WHILE THREATS TO ELIMINATE BENEFITS OR REFUSE TO DEAL WITH THE
UNION IF ELECTED SEEMED LESS IRREMEDIABLE WITH THE UNION WINNING THE
RERUN 75% OF THE TIME.  ID., AT 215-216.  FINALLY, TIME APPEARS TO BE A
FACTOR.  THE FIGURES SUGGEST THAT IF A RERUN IS HELD TOO SOON AFTER THE
ELECTION BEFORE THE EFFECTS OF THE UNFAIR LABOR PRACTICES HAVE WORN
OFF, OR TOO LONG AFTER THE ELECTION WHEN INTEREST IN THE UNION MAY HAVE
WANED, THE CHANCES FOR A CHANGED RESULT OCCURRING ARE NOT AS GOOD AS
THEY ARE IF THE RERUN IS HELD SOMETIME IN BETWEEN THOSE PERIODS.  THUS,
THE STUDY SHOWED THAT IF THE RERUN IS HELD WITHIN 30 DAYS OF THE
ELECTION OR OVER NINE MONTHS AFTER, THE CHANCES THAT A DIFFERENT RESULT
WILL OCCUR ARE ONLY ONE IN FIVE; WHEN THE RERUN IS HELD WITHIN 30-60
DAYS AFTER THE ELECTION, THE CHANCES FOR A CHANGED RESULT ARE TWO IN
FIVE.  ID., AT 221.     /32/  THE EMPLOYERS ARGUE THAT THE FOURTH
CIRCUIT CORRECTLY OBSERVED THAT, "IN THE GREAT MAJORITY OF CASES, A
CEASE AND DESIST ORDER WITH THE POSTING OF APPROPRIATE NOTICES WILL
ELIMINATE ANY UNDUE INFLUENCES UPON EMPLOYEES VOTING IN THE SECURITY OF
ANONYMITY."  NLRB V. LOGAN PACKING CO., 386 F.2D,AT 570.  IT IS FOR THE
BOARD AND NOT THE COURTS, HOWEVER, TO MAKE THAT DETERMINATION, BASED ON
ITS EXPERT ESTIMATE AS TO THE EFFECTS ON THE ELECTION PROCESS OF UNFAIR
LABOR PRACTICES OF VARYING INTENSITY.  IN FASHIONING ITS REMEDIES UNDER
THE BROAD PROVISIONS OF SEC. 10(C) OF THE ACT (29 U.S.C. 160(C)), THE
BOARD DRAWS ON A FUND OF KNOWLEDGE AND EXPERTISE ALL ITS OWN, AND ITS
CHOICE OF REMEDY MUST THEREFORE BE GIVEN SPECIAL RESPECT BY REVIEWING
COURTS.  SEE FIBREBOARD PAPER PRODUCTS CORP. V. NLRB, 379 U.S. 203
(1964).  "(IT IS USUALLY BETTER TO MINIMIZE THE OPPORTUNITY FOR
REVIEWING COURTS TO SUBSTITUTE THEIR DISCRETION FOR THAT OF THE
AGENCY."  CONSOLO V. FMC, 383 U.S. 607, 621 (1966). 

/33/  IT HAS BEEN POINTED OUT THAT EMPLOYEE RIGHTS ARE AFFECTED
WHETHER OR NOT A BARGAINING ORDER IS ENTERED, FOR THOSE WHO DESIRE
REPRESENTATION MAY NOT BE PROTECTED BY AN INADEQUATE RERUN ELECTION,
AND THOSE WHO OPPOSE COLLECTIVE BARGAINING MAY BE PREJUDICED BY A
BARGAINING ORDER IF IN FACT THE UNION WOULD HAVE LOST AN ELECTION
ABSENT EMPLOYER COERCION.  SEE LESNICK, SUPRA, N. 17, AT 862.  ANY
EFFECT WILL BE MINIMAL AT BEST, HOWEVER, FOR THERE "IS EVERY REASON FOR
THE UNION TO NEGOTIATE A CONTRACT THAT WILL SATISFY THE MAJORITY, FOR
THE UNION WILL SURELY REALIZE THAT IT MUST WIN THE SUPPORT OF THE
EMPLOYEES, IN THE FACE OF A HOSTILE EMPLOYER, IN ORDER TO SURVIVE THE
THREAT OF A DECERTIFICATION ELECTION AFTER A YEAR HAS PASSED."  BOK,
THE REGULATION OF CAMPAIGN TACTICS IN REPRESENTATION ELECTIONS UNDER
THE NATIONAL LABOR RELATIONS ACT, 78 HARV.L.REV.  38, 135 (1964). 

/34/  UNDER THE DOCTRINE OF BERNEL FOAM PRODUCTS CO., 146 N.L.R.B.
1277 (1964), THERE IS NOTHING INCONSISTENT IN THE UNION'S FILING AN
ELECTION PETITION AND THEREBY AGREEING THAT A QUESTION OF
REPRESENTATION EXISTS, AND THEN FILING A REFUSAL-TO-BARGAIN CHARGE
AFTER THE ELECTION IS LOST BECAUSE OF THE EMPLOYER'S UNFAIR LABOR
PRACTICES. 

/35/  SEE BOK, SUPRA, N. 33, AT 77; N. 31, SUPRA. 

/36/  SEE, E.G., KOLMAR LABORATORIES, INC., 159 N.L.R.B. 805, 807
810, AND CASES (RELIED ON BY THE TRIAL EXAMINER HERE) CITED AT 809, N.
3, ENFORCED, 387 F.2D 833 (C.A. 7TH CIR. 1967); SURPRENANT MFG. CO.,
144 N.L.R.B. 507, 510-511, ENFORCED, 341 F.2D 756, 761 (C.A. 6TH CIR.
1965). 

DOMINICK L. MANOLI ARGUED THE CAUSE FOR PETITIONER IN NO. 573.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, PETER L. STRAUSS,
ARNOLD ORDMAN, AND NORTON J. COME.  ALBERT GORE ARGUED THE CAUSE FOR
PETITIONER IN NO. 691.  WITH HIM ON THE BRIEF WAS JOSEPH M. JACOBS. 
EDWARD J. SIMERKA ARGUED THE CAUSE FOR PETITIONER IN NO. 585.  WITH HIM
ON THE BRIEF WAS EUGENE B. SCHWARTZ. 

JOHN E. JENKINS, JR., ARGUED THE CAUSE AND FILED BRIEFS FOR GISSEL
PACKING CO., INC., RESPONDENT IN NOS. 573 AND 691.  LEWIS P. HAMLIN,
JR., ARGUED THE CAUSE AND FILED A BRIEF FOR GENERAL STEEL PRODUCTS,
INC., ET AL., RESPONDENTS IN NO. 573.  FRED F. HOLROYD ARGUED THE CAUSE
FOR HECK'S, INC., RESPONDENT IN NO. 573.  WITH HIM ON THE BRIEF WAS
CHARLES E. HURT.  LAWRENCE G. WALLACE ARGUED THE CAUSE FOR RESPONDENT
IN NO. 585.  ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, DOMINICK L.
MANOLI, AND MESSRS.  STRAUSS, ORDMAN, AND COME. 

BRIEFS OF AMICI CURIAE IN NOS. 573 AND 691 WERE FILED BY J. ALBERT
WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION
OF LABOR & CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND BY THE ASSOCIATED
BUILDERS & CONTRACTORS, INC. BRIEFS OF AMICI CURIAE IN NO. 585 WERE
FILED BY LAMBERT H. MILLER FOR THE NATIONAL ASSOCIATION OF
MANUFACTURERS; BY HARRY L. BROWNE FOR THE AMERICAN RETAIL FEDERATION;
AND BY STANLEY E. TOBIN FOR THE MECHANICAL SPECIALTIES CO., INC.
..END :















KRAMER V. UNION SCHOOL DISTRICT, 395 U.S. 621 


       KRAMER V. UNION FREE SCHOOL DISTRICT NO. 15 ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF NEW YORK. 

NO. 258.  ARGUED JANUARY 16, 1969.-- DECIDED JUNE 16, 1969. 


SCHOOL DISTRICTS RESIDENTS WHO ARE OTHERWISE ELIGIBLE TO VOTE IN STATE
AND FEDERAL ELECTIONS MAY VOTE IN THE SCHOOL DISTRICT ELECTIONS ONLY IF
THEY OWN OR LEASE TAXABLE REALTY IN THE DISTRICT OR ARE PARENTS OR
CUSTODIANS OF CHILDREN ENROLLED IN THE LOCAL PUBLIC SCHOOLS. 
APPELLANT, A BACHELOR WHO NEITHER OWNS NOR LEASES TAXABLE REAL
PROPERTY, CHALLENGED THE CONSTITUTIONALITY OF THE SECTION.  A THREE
JUDGE DISTRICT COURT RULED SEC. 2012 CONSTITUTIONAL.  HELD:  SECTION
2012 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
PP. 625-633. 

(A) WHERE A STATE STATUTE GRANTS THE RIGHT TO VOTE TO SOME BONA FIDE
RESIDENTS OF REQUISITE AGE AND CITIZENSHIP AND DENIES THE FRANCHISE TO
OTHERS, IT MUST BE DETERMINED WHETHER THE EXCLUSIONS ARE NECESSARY TO
PROMOTE A COMPELLING STATE INTEREST.  PP. 625-630. 

(B) ASSUMING, ARGUENDO, THAT NEW YORK LEGITIMATELY MIGHT LIMIT THE
FRANCHISE IN THESE SCHOOL DISTRICT ELECTIONS TO THOSE "PRIMARILY
INTERESTED IN SCHOOL AFFAIRS" THE SEC. 2012 CLASSIFICATIONS DO NOT
ACCOMPLISH THIS PURPOSE WITH SUFFICIENT PRECISION TO JUSTIFY DENYING
THE FRANCHISE TO APPELLANT AND MEMBERS OF HIS CLASS, SINCE THE
CLASSIFICATIONS INCLUDE MANY PERSONS AT BEST ONLY REMOTELY INTERESTED
IN SCHOOL AFFAIRS AND EXCLUDE OTHERS DIRECTLY INTERESTED.  PP. 630
633. 

282 F.SUPP.  70, REVERSED AND REMANDED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CALLED ON TO DETERMINE WHETHER SEC. 2012 OF THE
NEW YORK EDUCATION LAW IS CONSTITUTIONAL.  THE LEGISLATION PROVIDES
THAT IN CERTAIN NEW YORK SCHOOL DISTRICTS RESIDENTS WHO ARE OTHERWISE
ELIGIBLE TO VOTE IN STATE AND FEDERAL ELECTIONS MAY VOTE IN THE SCHOOL
DISTRICT ELECTION ONLY IF THEY (1) OWN (OR LEASE) TAXABLE REAL PROPERTY
WITHIN THE DISTRICT, OR (2) ARE PARENTS (OR HAVE CUSTODY OF) CHILDREN
ENROLLED IN THE LOCAL PUBLIC SCHOOLS, APPELLANT, A BACHELOR WHO NEITHER
OWNS NOR LEASES TAXABLE REAL PROPERTY, FILED SUIT IN FEDERAL COURT
CLAIMING THAT SEC. 2012 DENIED HIM EQUAL PROTECTION OF THE LAWS IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  WITH ONE JUDGE DISSENTING, A
THREE-JUDGE DISTRICT COURT DISMISSED APPELLANT'S COMPLAINT.  FINDING
THAT SEC. 2012 DOES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, WE REVERSE. 

        I. 

NEW YORK LAW PROVIDES BASICALLY THREE METHODS OF SCHOOL BOARD
SELECTION.  IN SOME LARGE CITY DISTRICTS, THE SCHOOL BOARD IS APPOINTED
BY THE MAYOR OR CITY COUNCIL.  N.Y. EDUC.  LAW SEC. 2553, SUBDS. 2, 4
(1953), AS AMENDED (SUPP. 1968).  ON THE OTHER HAND, IN SOME CITIES,
PRIMARILY THOSE WITH LESS THAN 125,000 RESIDENTS, THE SCHOOL BOARD IS
ELECTED AT GENERAL OR MUNICIPAL ELECTIONS IN WHICH ALL QUALIFIED CITY
VOTERS MAY PARTICIPATE.  N.Y. EDUC.  LAW SECS. 2502, SUBD. 2, 2553,
SUBD. 3 (1953).  CF. N.Y. EDUC.  LAW SEC. 2531 (1953).  FINALLY, IN
OTHER DISTRICTS SUCH AS THE ONE INVOLVED IN THIS CASE, WHICH ARE
PRIMARILY RURAL AND SUBURBAN, THE SCHOOL BOARD IS ELECTED AT AN ANNUAL
MEETING OF QUALIFIED SCHOOL DISTRICT VOTERS.  /1/ 

THE CHALLENGED STATUTE IS APPLICABLE ONLY IN THE DISTRICTS WHICH
HOLD ANNUAL MEETINGS.  TO BE ELIGIBLE TO VOTE AT AN ANNUAL DISTRICT
MEETING, AN OTHERWISE QUALIFIED /2/  DISTRICT RESIDENT MUST EITHER (1)
BE THE OWNER OR LESSEE OF TAXABLE REAL PROPERTY LOCATED IN THE
DISTRICT, (2) BE THE SPOUSE OF ONE WHO OWNS OR LEASES QUALIFYING
PROPERTY, OR (3) BE THE PARENT OR GUARDIAN OF A CHILD ENROLLED FOR A
SPECIFIED TIME DURING THE PRECEDING YEAR IN A LOCAL DISTRICT SCHOOL. 

ALTHOUGH THE NEW YORK STATE DEPARTMENT OF EDUCATION HAS SUBSTANTIAL
RESPONSIBILITY FOR EDUCATION IN THE STATE, THE LOCAL SCHOOL DISTRICTS
MAINTAIN SIGNIFICANT CONTROL OVER THE ADMINISTRATION OF LOCAL SCHOOL
DISTRICT AFFAIRS.  /3/  GENERALLY, THE BOARD OF EDUCATION HAS THE BASIC
RESPONSIBILITY FOR LOCAL SCHOOL OPERATION, INCLUDING PRESCRIBING THE
COURSES OF STUDY, DETERMINING THE TEXTBOOKS TO BE USED, AND EVEN
ALTERING AND EQUIPPING A FORMER SCHOOLHOUSE FOR USE AS A PUBLIC
LIBRARY.  N.Y. EDUC.  LAW SEC. 1709 (1953).  ADDITIONALLY, IN DISTRICTS
SELECTING MEMBERS OF THE BOARD OF EDUCATION AT ANNUAL MEETINGS, THE
LOCAL VOTERS ALSO PASS DIRECTLY ON OTHER DISTRICT MATTERS.  FOR
EXAMPLE, THEY MUST APPROVE THE SCHOOL BUDGET SUBMITTED BY THE SCHOOL
BOARD.  N.Y. EDUC.  LAW SECS. 2021, 2022 (1953).  /4/  MOREOVER, ONCE
THE BUDGET IS APPROVED, THE GOVERNING BODY OF THE VILLAGES WITHIN THE
SCHOOL DISTRICT MUST RAISE THE MONEY WHICH HAS BEEN DECLARED "NECESSARY
FOR TEACHERS' SALARIES AND THE ORDINARY CONTINGENT EXPENSES (OF THE
SCHOOLS)."  N.Y. EDUC.  LAW SEC. 1717 (1953).  /5/  THE VOTERS ALSO MAY
"AUTHORIZE SUCH ACTS AND VOTE SUCH TAXES AS THEY SHALL DEEM EXPEDIENT .
. . FOR . . . EQUIPPING FOR LIBRARY USE ANY FORMER SCHOOLHOUSE . . .
(AND) FOR THE PURCHASE OF LAND AND BUILDINGS FOR AGRICULTURAL,
ATHLETIC, PLAYGROUND OR SOCIAL CENTER PURPOSES . . . ."  N.Y. EDUC. 
LAW SEC. 416 (1953). 

APPELLANT IS A 31-YEAR-OLD COLLEGE-EDUCATED STOCKBROKER WHO LIVES IN
HIS PARENTS' HOME IN THE UNION FREE SCHOOL DISTRICT NO. 15, A DISTRICT
TO WHICH SEC. 2012 APPLIES.  HE IS A CITIZEN OF THE UNITED STATES AND
HAS VOTED IN FEDERAL AND STATE ELECTIONS SINCE 1959.  HOWEVER, SINCE HE
HAS NO CHILDREN AND NEITHER OWNS NOR LEASES TAXABLE REAL PROPERTY,
APPELLANT'S ATTEMPTS TO REGISTER FOR AND VOTE IN THE LOCAL SCHOOL
DISTRICT ELECTIONS HAVE BEEN UNSUCCESSFUL.  AFTER THE SCHOOL DISTRICT
REJECTED HIS 1965 APPLICATION, APPELLANT INSTITUTED THE PRESENT CLASS
ACTION CHALLENGING THE CONSTITUTIONALITY OF THE VOTER ELIGIBILITY
REQUIREMENTS. 

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW
YORK DENIED APPELLANT'S REQUEST (MADE PURSUANT TO 28 U.S.C. 2281) THAT
A THREE-JUDGE DISTRICT COURT BE CONVENED, AND GRANTED APPELLEES' MOTION
TO DISMISS APPELLANT'S COMPLAINT.  KRAMER V. UNION FREE SCHOOL DISTRICT
NO. 15, 259 F.SUPP.  164 (D.C.E.D.N.Y. 1966).  ON APPEAL, THE COURT OF
APPEALS FOR THE SECOND CIRCUIT REVERSED, RULING APPELLANT'S COMPLAINT
WARRANTED CONVENING A THREE-JUDGE COURT.  KRAMER V. UNION FREE SCHOOL
DISTRICT NO. 15, 379 F.2D 491 (C.A. 2D CIR. 1967).  ON REMAND, THE
THREE-JUDGE COURT RULED THAT SEC. 2012 IS CONSTITUTIONAL AND DISMISSED
APPELLANT'S COMPLAINT.  282 F.SUPP.  70.  PURSUANT TO 28 U.S.C. 1253,
APPELLANT FILED A DIRECT APPEAL WITH THIS COURT; WE NOTED PROBABLE
JURISDICTION.  393 U.S. 818 (1968). 

        II. 

AT THE OUTSET, IT IS IMPORTANT TO NOTE WHAT IS NOT AT ISSUE IN THIS
CASE.  THE REQUIREMENTS OF SEC. 2012 THAT SCHOOL DISTRICT VOTERS MUST
(1) BE CITIZENS OF THE UNITED STATES, (2) BE BONA FIDE RESIDENTS OF THE
SCHOOL DISTRICT, AND (3) BE AT LEAST 21 YEARS OF AGE ARE NOT
CHALLENGED.  APPELLANT AGREES THAT THE STATES HAVE THE POWER TO IMPOSE
REASONABLE CITIZENSHIP, AGE, AND RESIDENCY REQUIREMENTS ON THE
AVAILABILITY OF THE BALLOT.  CF. CARRINGTON V. RASH, 380 U.S. 89, 91
(1965); POPE V. WILLIAMS, 193 U.S. 621 (1904).  THE SOLE ISSUE IN THIS
CASE IS WHETHER THE ADDITIONAL REQUIREMENTS OF SEC. 2012-- REQUIREMENTS
WHICH PROHIBIT SOME DISTRICT RESIDENTS WHO ARE OTHERWISE QUALIFIED BY
AGE AND CITIZENSHIP FROM PARTICIPATING IN DISTRICT MEETINGS AND SCHOOL
BOARD ELECTIONS-- VIOLATE THE FOURTEENTH AMENDMENT'S COMMAND THAT NO
STATE SHALL DENY PERSONS EQUAL PROTECTION OF THE LAWS. 

"IN DETERMINING WHETHER OR NOT A STATE LAW VIOLATES THE EQUAL
PROTECTION CLAUSE, WE MUST CONSIDER THE FACTS AND CIRCUMSTANCES BEHIND
THE LAW, THE INTERESTS WHICH THE STATE CLAIMS TO BE PROTECTING, AND THE
INTERESTS OF THOSE WHO ARE DISADVANTAGED BY THE CLASSIFICATION." 
WILLIAMS V. RHODES, 393 U.S. 23, 30 (1968).  AND, IN THIS CASE, WE MUST
GIVE THE STATUTE A CLOSE AND EXACTING EXAMINATION.  "(SINCE THE RIGHT
TO EXERCISE THE FRANCHISE IN A FREE AND UNIMPAIRED MANNER IS
PRESERVATIVE OF OTHER BASIC CIVIL AND POLITICAL RIGHTS, ANY ALLEGED
INFRINGEMENT OF THE RIGHT OF CITIZENS TO VOTE MUST BE CAREFULLY AND
METICULOUSLY SCRUTINIZED."  REYNOLDS V. SIMS, 377 U.S. 533, 562
(1964).  SEE WILLIAMS V. RHODES, SUPRA, AT 31; WESBERRY V. SANDERS, 376
U.S. 1, 17 (1964).  THIS CAREFUL EXAMINATION IS NECESSARY BECAUSE
STATUTES DISTRIBUTING THE FRANCHISE CONSTITUTE THE FOUNDATION OF OUR
REPRESENTATIVE SOCIETY.  ANY UNJUSTIFIED DISCRIMINATION IN DETERMINING
WHO MAY PARTICIPATE IN POLITICAL AFFAIRS OR IN THE SELECTION OF PUBLIC
OFFICIALS UNDERMINES THE LEGITIMACY OF REPRESENTATIVE GOVERNMENT. 

THUS, STATE APPORTIONMENT STATUTES, WHICH MAY DILUTE THE
EFFECTIVENESS OF SOME CITIZENS' VOTES, RECEIVE CLOSE SCRUTINY FROM THIS
COURT.  REYNOLDS V. SIMS, SUPRA.  SEE AVERY V. MIDLAND COUNTY, 390 U.S.
474 (1968).  NO LESS RIGID AN EXAMINATION IS APPLICABLE TO STATUTES
DENYING THE FRANCHISE TO CITIZENS WHO ARE OTHERWISE QUALIFIED BY
RESIDENCE AND AGE.  /6/  STATUTES GRANTING THE FRANCHISE TO RESIDENTS
ON A SELECTIVE BASIS ALWAYS POSE THE DANGER OF DENYING SOME CITIZENS
ANY EFFECTIVE VOICE IN THE GOVERNMENTAL AFFAIRS WHICH SUBSTANTIALLY
AFFECT THEIR LIVES.  /7/  THEREFORE, IF A CHALLENGED STATE STATUTE
GRANTS THE RIGHT TO VOTE TO SOME BONA FIDE RESIDENTS OF REQUISITE AGE
AND CITIZENSHIP AND DENIES THE FRANCHISE TO OTHERS, THE COURT MUST
DETERMINE WHETHER THE EXCLUSIONS ARE NECESSARY TO PROMOTE A COMPELLING
STATE INTEREST.  SEE CARRINGTON V. RASH, SUPRA, AT 96. 

AND, FOR THESE REASONS, THE DEFERENCE USUALLY GIVEN TO THE JUDGMENT
OF LEGISLATORS DOES NOT EXTEND TO DECISIONS CONCERNING WHICH RESIDENT
CITIZENS MAY PARTICIPATE IN THE ELECTION OF LEGISLATORS AND OTHER
PUBLIC OFFICIALS.  THOSE DECISIONS MUST BE CAREFULLY SCRUTINIZED BY THE
COURT TO DETERMINE WHETHER EACH RESIDENT CITIZEN HAS, AS FAR AS IS
POSSIBLE, AN EQUAL VOICE IN THE SELECTIONS.  ACCORDINGLY, WHEN WE ARE
REVIEWING STATUTES WHICH DENY SOME RESIDENTS THE RIGHT TO VOTE, THE
GENERAL PRESUMPTION OF CONSTITUTIONALITY AFFORDED STATE STATUTES AND
THE TRADITIONAL APPROVAL GIVEN STATE CLASSIFICATIONS IF THE COURT CAN
CONCEIVE OF A "RATIONAL BASIS" FOR THE DISTINCTIONS MADE /8/  ARE NOT
APPLICABLE.  SEE HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663, 670
(1966).  THE PRESUMPTION OF CONSTITUTIONALITY AND THE APPROVAL GIVEN
"RATIONAL"  CLASSIFICATIONS IN OTHER TYPES OF ENACTMENTS /9/  ARE BASED
ON AN ASSUMPTION THAT THE INSTITUTIONS OF STATE GOVERNMENT ARE
STRUCTURED SO AS TO REPRESENT FAIRLY ALL THE PEOPLE.  HOWEVER, WHEN THE
CHALLENGE TO THE STATUTE IS IN EFFECT A CHALLENGE OF THIS BASIC
ASSUMPTION, THE ASSUMPTION CAN NO LONGER SERVE AS THE BASIS FOR
PRESUMING CONSTITUTIONALITY.  AND, THE ASSUMPTION IS NO LESS UNDER
ATTACK BECAUSE THE LEGISLATURE WHICH DECIDES WHO MAY PARTICIPATE AT THE
VARIOUS LEVELS OF POLITICAL CHOICE IS FAIRLY ELECTED.  LEGISLATION
WHICH DELEGATES DECISION MAKING TO BODIES ELECTED BY ONLY A PORTION OF
THOSE ELIGIBLE TO VOTE FOR THE LEGISLATURE CAN CAUSE UNFAIR
REPRESENTATION.  SUCH LEGISLATION CAN EXCLUDE A MINORITY OF VOTERS FROM
ANY VOICE IN THE DECISIONS JUST AS EFFECTIVELY AS IF THE DECISIONS WERE
MADE BY LEGISLATORS THE MINORITY HAD NO VOICE IN SELECTING.  /10/ 

THE NEED FOR EXACTING JUDICIAL SCRUTINY OF STATUTES DISTRIBUTING THE
FRANCHISE IS UNDIMINISHED SIMPLY BECAUSE, UNDER A DIFFERENT STATUTORY
SCHEME, THE OFFICES SUBJECT TO ELECTION MIGHT HAVE BEEN FILED THROUGH
APPOINTMENT.  /11/  STATES DO HAVE LATITUDE IN DETERMINING WHETHER
CERTAIN PUBLIC OFFICIALS SHALL BE SELECTED BY ELECTION OR CHOSEN BY
APPOINTMENT AND WHETHER VARIOUS QUESTIONS SHALL BE SUBMITTED TO THE
VOTERS.  IN FACT, WE HAVE HELD THAT WHERE A COUNTY SCHOOL BOARD IS AN
ADMINISTRATIVE, NOT LEGISLATIVE, BODY, ITS MEMBERS NEED NOT BE
ELECTED.  SAILORS V. KENT BD. OF EDUCATION, 387 U.S. 105, 108 (1967). 
HOWEVER, "ONCE THE FRANCHISE IS GRANTED TO THE ELECTORATE, LINES MAY
NOT BE DRAWN WHICH ARE INCONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT."  HARPER V. VIRGINIA BD. OF ELECTIONS, SUPRA,
AT 665.  /12/ 

NOR IS THE NEED FOR CLOSE JUDICIAL EXAMINATION AFFECTED BECAUSE THE
DISTRICT MEETINGS AND THE SCHOOL BOARD DO NOT HAVE "GENERAL"
LEGISLATIVE POWERS.  OUR EXACTING EXAMINATION IS NOT NECESSITATED BY
THE SUBJECT OF THE ELECTION; RATHER, IT IS REQUIRED BECAUSE SOME
RESIDENT CITIZENS ARE PERMITTED TO PARTICIPATE AND SOME ARE NOT.  FOR
EXAMPLE, A CITY CHARTER MIGHT WELL PROVIDE THAT THE ELECTED CITY
COUNCIL APPOINT A MAYOR WHO WOULD HAVE BROAD ADMINISTRATIVE POWERS. 
ASSUMING THE COUNCIL WERE ELECTED CONSISTENT WITH THE COMMANDS OF THE
EQUAL PROTECTION CLAUSE, THE DELEGATION OF POWER TO THE MAYOR WOULD NOT
CALL FOR THIS COURT'S EXACTING REVIEW.  ON THE OTHER HAND, IF THE CITY
CHARTER MADE THE OFFICE OF MAYOR SUBJECT TO AN ELECTION IN WHICH ONLY
SOME RESIDENT CITIZENS WERE ENTITLED TO VOTE, THERE WOULD BE PRESENTED
A SITUATION CALLING FOR OUR CLOSE REVIEW. 

        III. 

BESIDES APPELLANT AND OTHERS WHO SIMILARLY LIVE IN THEIR PARENTS'
HOMES, THE STATUTE ALSO DISENFRANCHISES THE FOLLOWING PERSONS (UNLESS
THEY ARE PARENTS OR GUARDIANS OF CHILDREN ENROLLED IN THE DISTRICT
PUBLIC SCHOOL):  SENIOR CITIZENS AND OTHERS LIVING WITH CHILDREN OR
RELATIVES; CLERGY, MILITARY PERSONNEL, AND OTHERS WHO LIVE ON TAX
EXEMPT PROPERTY; BOARDERS AND LODGERS; PARENTS WHO NEITHER OWN NOR
LEASE QUALIFYING PROPERTY AND WHOSE CHILDREN ARE TOO YOUNG TO ATTEND
SCHOOL; PARENTS WHO NEITHER OWN NOR LEASE QUALIFYING PROPERTY AND WHOSE
CHILDREN ATTEND PRIVATE SCHOOLS. 

APPELLANT ASSERTS THAT EXCLUDING HIM FROM PARTICIPATION IN THE
DISTRICT ELECTIONS DENIES HIM EQUAL PROTECTION OF THE LAWS.  HE
CONTENDS THAT HE AND OTHERS OF HIS CLASS ARE SUBSTANTIALLY INTERESTED
IN AND SIGNIFICANTLY AFFECTED BY THE SCHOOL MEETING DECISIONS.  ALL
MEMBERS OF THE COMMUNITY HAVE AN INTEREST IN THE QUALITY AND STRUCTURE
OF PUBLIC EDUCATION, APPELLANT SAYS, AND HE URGES THAT "THE DECISIONS
TAKEN BY LOCAL BOARDS . . . MAY HAVE GRAVE CONSEQUENCES TO THE ENTIRE
POPULATION."  APPELLANT ALSO ARGUES THAT THE LEVEL OF PROPERTY TAXATION
AFFECTS HIM, EVEN THOUGH HE DOES NOT OWN PROPERTY, AS PROPERTY TAX
LEVELS AFFECT THE PRICE OF GOODS AND SERVICES IN THE COMMUNITY. 

WE TURN THEREFORE TO QUESTION WHETHER THE EXCLUSION IS NECESSARY TO
PROMOTE A COMPELLING STATE INTEREST.  FIRST, APPELLEES /13/  ARGUE THAT
THE STATE HAS A LEGITIMATE INTEREST IN LIMITING THE FRANCHISE IN SCHOOL
DISTRICT ELECTIONS TO "MEMBERS OF THE COMMUNITY OF INTEREST"-- THOSE
"PRIMARILY INTERESTED IN SUCH ELECTIONS."  SECOND, APPELLEES URGE THAT
THE STATE MAY REASONABLY AND PERMISSIBLY CONCLUDE THAT "PROPERTY
TAXPAYERS" (INCLUDING LESSEES OF TAXABLE PROPERTY WHO SHARE THE TAX
BURDEN THROUGH RENT PAYMENTS) AND PARENTS OF THE CHILDREN ENROLLED IN
THE DISTRICT'S SCHOOLS ARE THOSE "PRIMARILY INTERESTED" IN SCHOOL
AFFAIRS.     WE DO NOT UNDERSTAND APPELLEES TO ARGUE THAT THE STATE IS
ATTEMPTING TO LIMIT THE FRANCHISE TO THOSE "SUBJECTIVELY CONCERNED"
ABOUT SCHOOL MATTERS.  RATHER, THEY APPEAR TO ARGUE THAT THE STATE'S
LEGITIMATE INTEREST IS IN RESTRICTING A VOICE IN SCHOOL MATTERS TO
THOSE "DIRECTLY AFFECTED" BY SUCH DECISIONS.  THE STATE APPARENTLY
REASONS THAT SINCE THE SCHOOLS ARE FINANCED IN PART BY LOCAL PROPERTY
TAXES, PERSONS WHOSE OUT-OF-POCKET EXPENSES ARE "DIRECTLY" AFFECTED BY
PROPERTY TAX CHANGES SHOULD BE ALLOWED TO VOTE.  SIMILARLY, PARENTS OF
CHILDREN IN SCHOOL ARE THOUGHT TO HAVE A "DIRECT" STAKE IN SCHOOL
AFFAIRS AND ARE GIVEN A VOTE. 

APPELLEES ARGUE THAT IT IS NECESSARY TO LIMIT THE FRANCHISE TO THOSE
"PRIMARILY INTERESTED" IN SCHOOL AFFAIRS BECAUSE "THE EVER INCREASING
COMPLEXITY OF THE MANY INTERACTING PHASES OF THE SCHOOL SYSTEM AND
STRUCTURE MAKE IT EXTREMELY DIFFICULT FOR THE ELECTORATE FULLY TO
UNDERSTAND THE WHYS AND WHEREFORES OF THE DETAILED OPERATIONS OF THE
SCHOOL SYSTEM."  APPELLEES SAY THAT MANY COMMUNICATIONS OF SCHOOL
BOARDS AND SCHOOL ADMINISTRATIONS ARE SENT HOME TO THE PARENTS THROUGH
THE DISTRICT PUPILS AND ARE "NOT BROADCAST TO THE GENERAL PUBLIC";
THUS, NONPARENTS WILL BE LESS INFORMED THAN PARENTS.  FURTHER,
APPELLEES ARGUE, THOSE WHO ARE ASSESSED FOR LOCAL PROPERTY TAXES
(EITHER DIRECTLY OR INDIRECTLY THROUGH RENT) WILL HAVE ENOUGH OF AN
INTEREST "THROUGH THE BURDEN ON THEIR POCKETBOOKS, TO ACQUIRE SUCH
INFORMATION AS THEY MAY NEED." 

WE NEED EXPRESS NO OPINION AS TO WHETHER THE STATE IN SOME
CIRCUMSTANCES MIGHT LIMIT THE EXERCISE OF THE FRANCHISE TO THOSE
"PRIMARILY INTERESTED" OR "PRIMARILY AFFECTED."  OF COURSE, WE
THEREFORE DO NOT REACH THE ISSUE OF WHETHER THESE PARTICULAR ELECTIONS
ARE OF THE TYPE IN WHICH THE FRANCHISE MAY BE SO LIMITED.  FOR,
ASSUMING, ARGUENDO, THAT NEW YORK LEGITIMATELY MIGHT LIMIT THE
FRANCHISE IN THESE SCHOOL DISTRICT ELECTIONS TO THOSE "PRIMARILY
INTERESTED IN SCHOOL AFFAIRS," CLOSE SCRUTINY OF THE SEC. 2012
CLASSIFICATIONS DEMONSTRATES THAT THEY DO NOT ACCOMPLISH THIS PURPOSE
WITH SUFFICIENT PRECISION TO JUSTIFY DENYING APPELLANT THE FRANCHISE. 

WHETHER CLASSIFICATIONS ALLEGEDLY LIMITING THE FRANCHISE TO THOSE
RESIDENT CITIZENS "PRIMARILY INTERESTED" DENY THOSE EXCLUDED EQUAL
PROTECTION OF THE LAWS DEPENDS, INTER ALIA, ON WHETHER ALL THOSE
EXCLUDED ARE IN FACT SUBSTANTIALLY LESS INTERESTED OR AFFECTED THAN
THOSE THE STATUTE INCLUDES.  IN OTHER WORDS, THE CLASSIFICATIONS MUST
BE TAILORED SO THAT THE EXCLUSION OF APPELLANT AND MEMBERS OF HIS CLASS
IS NECESSARY TO ACHIEVE THE ARTICULATED STATE GOAL.  /14/  SECTION 2012
DOES NOT MEET THE EXACTING STANDARD OF PRECISION WE REQUIRE OF STATUTES
WHICH SELECTIVELY DISTRIBUTE THE FRANCHISE.  THE CLASSIFICATIONS IN
SEC. 2012 PERMIT INCLUSION OF MANY PERSONS WHO HAVE, AT BEST, A REMOTE
AND INDIRECT INTEREST IN SCHOOL AFFAIRS AND, ON THE OTHER HAND, EXCLUDE
OTHERS WHO HAVE A DISTINCT AND DIRECT INTEREST IN THE SCHOOL MEETING
DECISIONS.  /15/ 

NOR DO APPELLEES OFFER ANY JUSTIFICATION FOR THE EXCLUSION OF
SEEMINGLY INTERESTED AND INFORMED RESIDENTS-- OTHER THAN TO ARGUE THAT
THE SEC. 2012 CLASSIFICATIONS INCLUDE THOSE "WHOM THE STATE COULD
UNDERSTANDABLY DEEM TO BE THE MOST INTIMATELY INTERESTED IN ACTIONS
TAKEN BY THE SCHOOL BOARD," AND URGE THAT "THE TASK OF . . . BALANCING
THE INTEREST OF THE COMMUNITY IN THE MAINTENANCE OF ORDERLY SCHOOL
DISTRICT ELECTIONS AGAINST THE INTEREST OF ANY INDIVIDUAL IN VOTING IN
SUCH ELECTIONS SHOULD CLEARLY REMAIN WITH THE LEGISLATURE."  /16/  BUT
THE ISSUE IS NOT WHETHER THE LEGISLATIVE JUDGMENTS ARE RATIONAL.  A
MORE EXACTING STANDARD OBTAINS.  THE ISSUE IS WHETHER THE SEC. 2012
REQUIREMENTS DO IN FACT SUFFICIENTLY FURTHER A COMPELLING STATE
INTEREST TO JUSTIFY DENYING THE FRANCHISE TO APPELLANT AND MEMBERS OF
HIS CLASS.  THE REQUIREMENTS OF SEC. 2012 ARE NOT SUFFICIENTLY TAILORED
TO LIMITING THE FRANCHISE TO THOSE "PRIMARILY INTERESTED" IN SCHOOL
AFFAIRS TO JUSTIFY THE DENIAL OF THE FRANCHISE TO APPELLANT AND MEMBERS
OF HIS CLASS. 

THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF NEW YORK IS THEREFORE REVERSED.  THE CASE IS REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  IN SOME DISTRICTS THE ELECTION TAKES PLACE ON THE WEDNESDAY
FOLLOWING THE DISTRICT MEETING.  N.Y. EDUC.  LAW SEC. 2013 (SUPP.
1968). 

/2/  THE STATUTE ALSO REQUIRES THAT A VOTER BE A CITIZEN OF THE
UNITED STATES AND AT LEAST 21 YEARS OF AGE.  APPELLANT MEETS THESE
REQUIREMENTS AND DOES NOT CHALLENGE THE CITIZENSHIP, AGE, OR RESIDENCY
REQUIREMENTS OF SEC. 2012.  SEE INFRA, AT 625.  THE STATUTE IS SET OUT
IN THE APPENDIX, INFRA. 

/3/  "BUT WHILE THE ADMINISTRATION OF SCHOOLS AND THE FORMULATION OF
GENERAL POLICIES HAVE BEEN CENTRALIZED IN THE STATE EDUCATION
DEPARTMENT . . . THE IMMEDIATE CONTROL AND OPERATION OF THE SCHOOLS IN
NEW YORK HAVE TO A LARGE EXTENT BEEN VESTED IN THE LOCALITIES.  THE
THOUSANDS OF DISTRICTS . . . POSSESS A HIGH DEGREE OF AUTHORITY IN
EDUCATION.  THEY DECIDE MATTERS OF LOCAL TAXATION FOR SCHOOL PURPOSES,
ELECT TRUSTEES AND OTHER SCHOOL OFFICIALS, PURCHASE BUILDINGS AND
SITES, EMPLOY TEACHERS AND . . . MAINTAIN DISCIPLINE . . . ."  GRAVES,
DEVELOPMENT OF THE EDUCATION LAW IN NEW YORK, 16 CONSOLIDATED LAWS OF
NEW YORK (EDUCATION LAW) XXIII (MCKINNEY 1953).  SEE R. PYLE, SOME
ASPECTS OF EDUCATION IN NEW YORK 9-13 (1967). 

/4/  IN DISTRICTS WHICH DO NOT HAVE ANNUAL MEETINGS, THE BUDGET IS
NOT SUBMITTED TO DISTRICT VOTERS.  THUS, IN CITY DISTRICTS WHERE THE
BOARD OF EDUCATION IS ELECTED BY ALL THE VOTERS, THE BOARD HAS THE
POWER TO SET THE BUDGET AND ASSESS TAXES TO MEET EXPENDITURES.  IN
LARGE CITY DISTRICTS, WHERE THE BOARD IS APPOINTED, THE BOARD MUST
SUBMIT REQUESTS TO THE CITY GOVERNMENT, MUCH AS WOULD ANY OTHER CITY
DEPARTMENT.  R. PYLE, SOME ASPECTS OF EDUCATION IN NEW YORK 11 (1967). 

/5/  THE LEGISLATION PROVIDES THAT THE MONEY SHALL BE RAISED THROUGH
A "TAX, TO BE LEVIED UPON ALL THE REAL PROPERTY IN (THE) VILLAGE . . .
."  AND, THE "CORPORATE AUTHORITIES SHALL HAVE NO POWER TO WITHHOLD THE
SUMS SO DECLARED TO BE NECESSARY . . . ."  N.Y. EDUC.  LAW SEC. 1717
(1953). 

/6/  THIS CASE PRESENTS AN ISSUE DIFFERENT FROM THE ONE WE FACED IN
MCDONALD V. BOARD OF ELECTION COMM'RS OF CHICAGO, 394 U.S. 802 (1969). 
THE PRESENT APPEAL INVOLVES AN ABSOLUTE DENIAL OF THE FRANCHISE.  IN
MCDONALD, ON THE OTHER HAND, WE WERE REVIEWING A STATUTE WHICH MADE
CASTING A BALLOT EASIER FOR SOME WHO WERE UNABLE TO COME TO THE POLLS. 
AS WE NOTED, THERE WAS NO EVIDENCE THAT THE STATUTE ABSOLUTELY
PROHIBITED ANYONE FROM EXERCISING THE FRANCHISE; AT ISSUE WAS NOT A
CLAIMED RIGHT TO VOTE BUT A CLAIMED RIGHT TO AN ABSENTEE BALLOT.  ID.,
AT 807-808. 

/7/ OF COURSE, THE EFFECTIVENESS OF ANY CITIZEN'S VOICE IN
GOVERNMENTAL AFFAIRS CAN BE DETERMINED ONLY IN RELATIONSHIP TO THE
POWER OF OTHER CITIZENS' VOTES.  FOR EXAMPLE, IF SCHOOL BOARD MEMBERS
ARE APPOINTED BY THE MAYOR, THE DISTRICT RESIDENTS MAY EFFECT A CHANGE
IN THE BOARD'S MEMBERSHIP OR POLICIES THROUGH THEIR VOTES FOR THE
MAYOR.  CF. N.Y. EDUC.  LAW SEC. 2553, SUBDS. 2, 4 (1953), AS AMENDED
(SUPP. 1968).  EACH RESIDENT'S FORMAL INFLUENCE IS PERHAPS INDIRECT,
BUT IT IS EQUAL TO THAT OF OTHER RESIDENTS.  HOWEVER, WHEN THE SCHOOL
BOARD POSITIONS ARE FILLED BY ELECTION AND SOME OTHERWISE QUALIFIED
CITY ELECTORS ARE PRECLUDED FROM VOTING, THE EXCLUDED RESIDENTS, WHEN
COMPARED TO THE FRANCHISED RESIDENTS, NO LONGER HAVE AN EFFECTIVE VOICE
IN SCHOOL AFFAIRS.  THIS IS PRECISELY THE SITUATION WITH REGARD TO THE
SIZE OF THE SCHOOL BUDGET IN DISTRICTS WHERE SEC. 2012 APPLIES.  SEE N.
4, SUPRA. 

/8/  SEE, E.G., MCGOWAN V. MARYLAND, 366 U.S. 420, 425-428 (1961);
ALLIED STORES V. BOWERS, 358 U.S. 522, 527 (1959); KOTCH V. BOARD OF
RIVER PORT PILOT COMM'RS, 330 U.S. 552, 556 (1947). 

/9/  OF COURSE, WE HAVE LONG HELD THAT IF THE BASIS OF
CLASSIFICATION IS INHERENTLY SUSPECT, SUCH AS RACE, THE STATUTE MUST BE
SUBJECTED TO AN EXACTING SCRUTINY, REGARDLESS OF THE SUBJECT MATTER OF
THE LEGISLATION.  SEE, E.G., MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 192
(1964); TAKAHASHI V. FISH & GAME COMM'N, 334 U.S. 410, 420 (1948);
OYAMA V. CALIFORNIA, 332 U.S. 633, 640 (1948). 

/10/  THUS, STATUTES STRUCTURING LOCAL GOVERNMENT UNITS RECEIVE NO
LESS EXACTING AN EXAMINATION MERELY BECAUSE THE STATE LEGISLATURE IS
FAIRLY ELECTED.  SEE AVERY V. MIDLAND COUNTY, 390 U.S. 474, 481, N. 6
(1968). 

/11/  SIMILARLY, NO LESS A SHOWING OF A COMPELLING JUSTIFICATION FOR
DISENFRANCHISING RESIDENTS IS REQUIRED MERELY BECAUSE THE QUESTIONS
SCHEDULED FOR THE ELECTION NEED NOT HAVE BEEN SUBMITTED TO THE VOTERS. 

/12/  IN SAILORS V. KENT BD. OF EDUCATION, 387 U.S. 105 (1967), EACH
LOCAL SCHOOL BOARD SENT ONE DELEGATE TO A BIENNIAL MEETING AT WHICH THE
MEMBERS OF THE COUNTY BOARD OF EDUCATION WERE SELECTED.  WE NOTED THAT
"THE CHOICE OF MEMBERS OF THE COUNTY SCHOOL BOARD DID NOT INVOLVE AN
ELECTION."  ID., AT 111.  HOWEVER, WE ALSO POINTED OUT THAT THE MEMBERS
OF THE LOCAL SCHOOL BOARDS, WHO IN EFFECT MADE THE COUNTY BOARD
APPOINTMENTS, WERE ELECTED, BUT THAT "NO CONSTITUTIONAL COMPLAINT (WAS)
RAISED RESPECTING THAT ELECTION."  IBID. 

/13/  THE UNION FREE SCHOOL DISTRICT NO. 15 AND EACH MEMBER OF ITS
BOARD OF EDUCATION WERE NAMED AS DEFENDANTS.  THE ATTORNEY GENERAL OF
NEW YORK INTERVENED AS AN APPELLEE. 

/14/  OF COURSE, IF THE EXCLUSIONS ARE NECESSARY TO PROMOTE THE
ARTICULATED STATE INTEREST, WE MUST THEN DETERMINE WHETHER THE INTEREST
PROMOTED BY LIMITING THE FRANCHISE CONSTITUTES A COMPELLING STATE
INTEREST.  WE DO NOT REACH THAT ISSUE IN THIS CASE. 

/15/  FOR EXAMPLE, APPELLANT RESIDES WITH HIS PARENTS IN THE SCHOOL
DISTRICT PAYS STATE AND FEDERAL TAXES AND IS INTERESTED IN AND AFFECTED
BY SCHOOL BOARD DECISIONS; HOWEVER, HE HAS NO VOTE.  ON THE OTHER HAND,
AN UNINTERESTED UNEMPLOYED YOUR MAN WHO PAYS NO STATE OR FEDERAL TAXES,
BUT WHO RENTS AN APARTMENT IN THE DISTRICT, CAN PARTICIPATE IN THE
ELECTION. 

/16/  WE WERE INFORMED AT ORAL ARGUMENT, HOWEVER, THAT A VERY SMALL
PROPORTION OF THE ELIGIBLE VOTERS ATTEND THE MEETINGS. 

        APPENDIX TO OPINION OF THE COURT. 


"A PERSON SHALL BE ENTITLED TO VOTE AT ANY SCHOOL MEETING FOR THE
ELECTION OF SCHOOL DISTRICT OFFICERS, AND UPON ALL OTHER MATTERS WHICH
MAY BE BROUGHT BEFORE SUCH MEETING, WHO IS:  1.  A CITIZEN OF THE
UNITED STATES. 

"2.  TWENTY-ONE YEARS OF AGE. 

"3.  A RESIDENT WITHIN THE DISTRICT FOR A PERIOD OF THIRTY DAYS NEXT
PRECEDING THE MEETING AT WHICH HE OFFERS TO VOTE; AND WHO IN ADDITION
THERETO POSSESSES ONE OF THE FOLLOWING THREE QUALIFICATIONS: 

"A.  OWNS OR IS THE SPOUSE OF AN OWNER, LEASES, HIRES, OR IS IN THE
POSSESSION UNDER A CONTRACT OR PURCHASE OR IS THE SPOUSE OF ONE WHO
LEASES, HIRES OR IS IN POSSESSION UNDER A CONTRACT OF PURCHASE OF, REAL
PROPERTY IN SUCH DISTRICT LIABLE TO TAXATION FOR SCHOOL PURPOSES, BUT
THE OCCUPATION OF REAL PROPERTY BY A PERSON AS LODGER OR BOARDER SHALL
NOT ENTITLE SUCH PERSON TO VOTE, OR 

"B.  IS THE PARENT OF A CHILD OF SCHOOL AGE, PROVIDED SUCH A CHILD
SHALL HAVE ATTENDED THE DISTRICT SCHOOL IN THE DISTRICT IN WHICH THE
MEETING IS HELD FOR A PERIOD OF AT LEAST EIGHT WEEKS DURING THE YEAR
PRECEDING SUCH SCHOOL MEETING,OR 

"C.  NOT BEING THE PARENT, HAS PERMANENTLY RESIDING WITH HIM A CHILD
OF SCHOOL AGE WHO SHALL HAVE ATTENDED THE DISTRICT SCHOOL FOR A PERIOD
OF AT LEAST EIGHT WEEKS DURING THE YEAR PRECEDING SUCH MEETING. 

"NO PERSON SHALL BE DEEMED TO BE INELIGIBLE TO VOTE AT ANY SUCH
MEETING, BY REASON OF SEX, WHO HAS THE OTHER QUALIFICATIONS REQUIRED BY
THIS SECTION." 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

IN LASSITER V. NORTHAMPTON ELECTION BD., 360 U.S. 45, THIS COURT
UPHELD AGAINST CONSTITUTIONAL ATTACK A LITERACY REQUIREMENT, APPLICABLE
TO VOTERS IN ALL STATE AND FEDERAL ELECTIONS, IMPOSED BY THE STATE OF
NORTH CAROLINA.  WRITING FOR A UNANIMOUS COURT, MR. JUSTICE DOUGLAS
SAID: 

     "THE STATES HAVE LONG BEEN HELD TO HAVE BROAD POWERS TO

  DETERMINE THE CONDITIONS UNDER WHICH THE RIGHT OF SUFFRAGE MAY BE

  EXERCISED, POPE V. WILLIAMS, 193 U.S. 621, 633; MASON V.

  MISSOURI, 179 U.S. 328, 335, ABSENT OF COURSE THE DISCRIMINATION

  WHICH THE CONSTITUTION CONDEMNS."  360 U.S.,AT 50-51. 

BELIEVING THAT THE APPELLANT IN THIS CASE IS NOT THE VICTIM OF ANY
"DISCRIMINATION WHICH THE CONSTITUTION CONDEMNS," I WOULD AFFIRM THE
JUDGMENT OF THE DISTRICT COURT. 

THE ISSUE BEFORE US MAY BE BRIEFLY SUMMARIZED.  NEW YORK HAS
PROVIDED THAT IN CERTAIN AREAS OF THE STATE, LOCAL AUTHORITY OVER
PUBLIC SCHOOLS SHALL RESIDE IN "UNION FREE SCHOOL DISTRICTS," SUCH AS
THE DISTRICT INVOLVED HERE.  IN SUCH AREAS, THE QUALIFIED VOTERS OF THE
DISTRICT ANNUALLY ELECT MEMBERS OF A BOARD OF EDUCATION AND DETERMINE
BY VOTE THE BASIC FISCAL POLICY OF THE SCHOOL SYSTEM:  THEY ADOPT A
BUDGET AND IN EFFECT DECIDE THE AMOUNT OF SCHOOL TAXES THAT SHALL BE
IMPOSED UPON THE TAXABLE REAL PROPERTY OF THE DISTRICT.  STATE AND
FEDERAL GRANTS PROVIDE SOME ADDITIONAL FUNDS FOR THE OPERATION OF THE
SCHOOL SYSTEM, BUT THE ONLY METHOD BY WHICH THE DISTRICT ITSELF MAY
RAISE ITS OWN REVENUE IS THROUGH SUCH PROPERTY TAXES.  /1/ 

THREE CLASSES OF PERSONS ARE QUALIFIED UNDER NEW YORK LAW TO VOTE IN
THESE SCHOOL ELECTIONS:  (1) PARENTS OR GUARDIANS OF CHILDREN ATTENDING
PUBLIC SCHOOLS WITHIN THE DISTRICT; (2) PERSONS WHO OWN TAXABLE REAL
PROPERTY WITHIN THE DISTRICT, AND THEIR SPOUSES; AND (3) PERSONS WHO
LEASE TAXABLE REAL PROPERTY WITHIN THE DISTRICT, AND THEIR SPOUSES. 
/2/  THE APPELLANT, A BACHELOR WHO LIVES WITH HIS PARENTS AND WHO
NEITHER OWNS NOR LEASES ANY REAL PROPERTY WITHIN THE DISTRICT, FALLS
WITHIN NONE OF THOSE CLASSES, AND CONSEQUENTLY IS DISQUALIFIED FROM
VOTING DESPITE THE FACE THAT HE MEETS THE GENERAL AGE AND RESIDENCE
REQUIREMENTS IMPOSED BY STATE LAW.  THE QUESTION PRESENTED IS WHETHER,
BY VIRTUE OF THAT DISQUALIFICATION, THE APPELLANT IS DENIED THE EQUAL
PROTECTION OF THE LAWS.     ALTHOUGH AT TIMES VARIOUSLY PHRASED, THE
TRADITIONAL TEST OF A STATUTE'S VALIDITY UNDER THE EQUAL PROTECTION
CLAUSE IS A FAMILIAR ONE:  A LEGISLATIVE CLASSIFICATION IS INVALID ONLY
"IF IT RESTS) ON GROUNDS WHOLLY IRRELEVANT TO ACHIEVEMENT OF THE
REGULATION'S OBJECTIVES."  KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS,
330 U.S. 552, 556.  /3/  IT WAS UNDER JUST SUCH A TEST THAT THE
LITERACY REQUIREMENT INVOLVED IN LASSITER WAS UPHELD.  THE PREMISE OF
OUR DECISION IN THAT CASE WAS THAT A STATE MAY CONSTITUTIONALLY IMPOSE
UPON ITS CITIZENS VOTING REQUIREMENTS REASONABLY "DESIGNED TO PROMOTE
INTELLIGENT USE OF THE BALLOT."  360 U.S.,AT 51.  A SIMILAR PREMISE
UNDERLIES THE PROPOSITION, CONSISTENTLY ENDORSED BY THIS COURT, /4/
THAT A STATE MAY EXCLUDE NONRESIDENTS FROM PARTICIPATION IN ITS
ELECTIONS.  SUCH RESIDENCE REQUIREMENTS, DESIGNED TO HELP ENSURE THAT
VOTERS HAVE A SUBSTANTIAL STAKE IN THE OUTCOME OF ELECTIONS AND AN
OPPORTUNITY TO BECOME FAMILIAR WITH THE CANDIDATES AND ISSUES VOTED
UPON, ARE ENTIRELY PERMISSIBLE EXERCISES OF STATE AUTHORITY.  INDEED,
THE APPELLANT EXPLICITLY CONCEDES, AS HE MUST, THE VALIDITY OF VOTING
REQUIREMENTS RELATING TO RESIDENCE, LITERACY, AND AGE.  YET HE ARGUES--
AND THE COURT ACCEPTS THE ARGUMENT-- THAT THE VOTING QUALIFICATIONS
INVOLVED HERE SOMEHOW HAVE A DIFFERENT CONSTITUTIONAL STATUS.  I AM
UNABLE TO SEE THE DISTINCTION. 

CLEARLY A STATE MAY REASONABLY ASSUME THAT ITS RESIDENTS HAVE A
GREATER STAKE IN THE OUTCOME OF ELECTIONS HELD WITHIN ITS BOUNDARIES
THAN DO OTHER PERSONS.  LIKEWISE, IT IS ENTIRELY RATIONAL FOR A STATE
LEGISLATURE TO SUPPOSE THAT RESIDENTS, BEING GENERALLY BETTER INFORMED
REGARDING STATE AFFAIRS THAN ARE NONRESIDENTS, WILL BE MORE LIKELY THAN
NON RESIDENTS TO VOTE RESPONSIBLY.  AND THE SAME MAY BE SAID OF
LEGISLATIVE ASSUMPTIONS REGARDING THE ELECTORAL COMPETENCE OF ADULTS
AND LITERATE PERSONS ON THE ONE HAND, AND OF MINORS AND ILLITERATES ON
THE OTHER.  IT IS CLEAR, OF COURSE, THAT LINES THUS DRAWN CANNOT
INFALLIBLY PERFORM THEIR INTENDED LEGISLATIVE FUNCTION.  JUST AS
"(ILLITERATE PEOPLE MAY BE INTELLIGENT VOTERS,"  /5/  NONRESIDENTS OR
MINORS MIGHT ALSO IN SOME INSTANCES BE INTERESTED, INFORMED, AND
INTELLIGENT PARTICIPANTS IN THE ELECTORAL PROCESS.  PERSONS WHO COMMUTE
ACROSS A STATE LINE TO WORK MAY WELL HAVE A GREAT STAKE IN THE AFFAIRS
OF THE STATE IN WHICH THEY ARE EMPLOYED; SOME COLLEGE STUDENTS UNDER 21
MAY BE BOTH BETTER INFORMED AND MORE PASSIONATELY INTERESTED IN
POLITICAL AFFAIRS THAN MANY ADULTS.  BUT SUCH DISCREPANCIES ARE THE
INEVITABLE CONCOMITANT OF THE LINE DRAWING THAT IS ESSENTIAL TO LAW
MAKING.  SO LONG AS THE CLASSIFICATION IS RATIONALLY RELATED TO A
PERMISSIBLE LEGISLATIVE END, THEREFORE-- AS ARE RESIDENCE, LITERACY,
AND AGE REQUIREMENTS IMPOSED WITH RESPECT TO VOTING-- THERE IS NO
DENIAL OF EQUAL PROTECTION. 

THUS JUDGED, THE STATUTORY CLASSIFICATION INVOLVED HERE SEEMS TO ME
CLEARLY TO BE VALID.  NEW YORK HAS MADE THE JUDGMENT THAT LOCAL
EDUCATIONAL POLICY IS BEST LEFT TO THOSE PERSONS WHO HAVE CERTAIN
DIRECT AND DEFINABLE INTERESTS IN THAT POLICY:  THOSE WHO ARE EITHER
IMMEDIATELY INVOLVED AS PARENTS OF SCHOOL CHILDREN OR WHO, AS OWNERS OR
LESSEES OF TAXABLE PROPERTY, ARE BURDENED WITH THE LOCAL COST OF
FUNDING SCHOOL DISTRICT OPERATIONS.  /6/  TRUE, PERSONS OUTSIDE THOSE
CLASSES MAY BE GENUINELY INTERESTED IN THE CONDUCT OF A SCHOOL
DISTRICT'S BUSINESS-- JUST AS COMMUTERS FROM NEW JERSEY MAY BE
GENUINELY INTERESTED IN THE OUTCOME OF A NEW YORK CITY ELECTION.  BUT
UNLESS THIS COURT IS TO CLAIM A MONOPOLY OF WISDOM REGARDING THE SOUND
OPERATION OF SCHOOL SYSTEMS IN THE 50 STATES, I SEE NO WAY TO JUSTIFY
THE CONCLUSION THAT THE LEGISLATIVE CLASSIFICATION INVOLVED HERE IS NOT
RATIONALLY RELATED TO A LEGITIMATE LEGISLATIVE PURPOSE.  "THERE IS NO
GROUP MORE INTERESTED IN THE OPERATION AND MANAGEMENT OF THE PUBLIC
SCHOOLS THAN THE TAXPAYERS WHO SUPPORT THEM AND THE PARENTS WHOSE
CHILDREN ATTEND THEM."  DOREMUS V. BOARD OF EDUC., 342 U.S. 429, 435
(DOUGLAS, J., DISSENTING). 

WITH GOOD REASON, THE COURT DOES NOT REALLY ARGUE THE CONTRARY. 
INSTEAD, IT STRIKES DOWN NEW YORK'S STATUTE BY ASSERTING THAT THE
TRADITIONAL EQUAL PROTECTION STANDARD IS INAPT IN THIS CASE, AND THAT A
CONSIDERABLY STRICTER STANDARD-- UNDER WHICH CLASSIFICATIONS RELATING
TO "THE FRANCHISE" ARE TO BE SUBJECTED TO "EXACTING JUDICIAL SCRUTINY"-
SHOULD BE APPLIED.  BUT THE ASSERTED JUSTIFICATION FOR APPLYING SUCH A
STANDARD CANNOT WITHSTAND ANALYSIS. 

THE COURT IS QUITE EXPLICIT IN EXPLAINING WHY IT BELIEVES THIS
STATUTE SHOULD BE GIVEN "CLOSE SCRUTINY": 

"THE PRESUMPTION OF CONSTITUTIONALITY AND THE APPROVAL GIVEN
'RATIONAL' CLASSIFICATIONS IN OTHER TYPES OF ENACTMENTS ARE BASED ON AN
ASSUMPTION THAT THE INSTITUTIONS OF STATE GOVERNMENT ARE STRUCTURED SO
AS TO REPRESENT FAIRLY ALL THE PEOPLE.  HOWEVER, WHEN THE CHALLENGE TO
THE STATUTE IS IN EFFECT A CHALLENGE OF THIS BASIC ASSUMPTION, THE
ASSUMPTION CAN NO LONGER SERVE AS THE BASIS FOR PRESUMING
CONSTITUTIONALITY."  I AM AT A LOSS TO UNDERSTAND HOW SUCH REASONING IS
AT ALL RELEVANT TO THE PRESENT CASE.  THE VOTING QUALIFICATIONS AT
ISSUE HAVE BEEN PROMULGATED, NOT BY UNION FREE SCHOOL DISTRICT NO. 15,
BUT BY THE NEW YORK STATE LEGISLATURE, AND THE APPELLANT IS OF COURSE
FULLY ABLE TO PARTICIPATE IN THE ELECTION OF REPRESENTATIVES IN THAT
BODY.  THERE IS SIMPLY NO CLAIM WHATEVER HERE THAT THE STATE GOVERNMENT
IS NOT "STRUCTURED SO AS TO REPRESENT FAIRLY ALL THE PEOPLE," INCLUDING
THE APPELLANT. 

NOR IS THERE ANY OTHER JUSTIFICATION FOR IMPOSING THE COURT'S
"EXACTING" EQUAL PROTECTION TEST.  THIS CASE DOES NOT INVOLVE RACIAL
CLASSIFICATIONS, WHICH IN LIGHT OF THE GENESIS OF THE FOURTEENTH
AMENDMENT HAVE TRADITIONALLY BEEN VIEWED AS INHERENTLY "SUSPECT."  /7/
AND THIS STATUTE IS NOT ONE THAT IMPINGES UPON A CONSTITUTIONALLY
PROTECTED RIGHT, AND THAT CONSEQUENTLY CAN BE JUSTIFIED ONLY BY A
"COMPELLING" STATE INTEREST.  /8/  FOR "THE CONSTITUTION OF THE UNITED
STATES DOES NOT CONFER THE RIGHT OF SUFFRAGE UPON ANY ONE . . . ." 
MINOR V. HAPPERSETT, 21 WALL.  162, 178. 

IN ANY EVENT, IT SEEMS TO ME THAT UNDER ANY EQUAL PROTECTION
STANDARD, SHORT OF A DOCTRINAIRE INSISTENCE THAT UNIVERSAL SUFFRAGE IS
SOMEHOW MANDATED BY THE CONSTITUTION, THE APPELLANT'S CLAIM MUST BE
REJECTED.  FIRST OF ALL, IT MUST BE EMPHASIZED-- DESPITE THE COURT'S
UNDIFFERENTIATED REFERENCES TO WHAT IT TERMS "THE FRANCHISE"-- THAT WE
ARE DEALING HERE, NOT WITH A GENERAL ELECTION, BUT WITH A LIMITED,
SPECIAL-PURPOSE ELECTION.  /9/  THE APPELLANT IS ELIGIBLE TO VOTE IN
ALL STATE, LOCAL, AND FEDERAL ELECTIONS IN WHICH GENERAL GOVERNMENTAL
POLICY IS DETERMINED.  HE IS FULLY ABLE, THEREFORE, TO PARTICIPATE NOT
ONLY ON THE PROCESSES BY WHICH THE REQUIREMENTS FOR SCHOOL DISTRICT
VOTING MAY BE CHANGED, BUT ALSO IN THOSE BY WHICH THE LEVELS OF STATE
AND FEDERAL FINANCIAL ASSISTANCE TO THE DISTRICT ARE DETERMINED.  HE
CLEARLY IS NOT LOCKED INTO ANY SELF-PERPETUATING STATUS OF EXCLUSION
FROM THE ELECTORAL PROCESS.  /10/ 

SECONDLY, THE APPELLANT IS OF COURSE LIMITED TO ASSERTING HIS OWN
RIGHTS, NOT THE PURPORTED RIGHTS OF HYPOTEHTICAL CHILDLESS CLERGYMEN OR
PARENTS OF PRESCHOOL CHILDREN, WHO NEITHER OWN NOR RENT TAXABLE
PROPERTY.  THE APPELLANT'S STATUS IS MERELY THAT OF A CITIZEN WHO SAYS
HE IS INTERESTED IN THE AFFAIRS OF HIS LOCAL PUBLIC SCHOOLS.  IF THE
CONSTITUTION REQUIRES THAT HE MUST BE GIVEN A DECISION-MAKING ROLE IN
THE GOVERNANCE OF THOSE AFFAIRS, THEN IT SEEMS TO ME THAT ANY
INDIVIDUAL WHO SEEKS SUCH A ROLE MUST BE GIVEN IT.  FOR AS I HAVE
SUGGESTED, THERE IS NO PERSUASIVE REASON FOR DISTINGUISHING
CONSTITUTIONALLY BETWEEN THE VOTER QUALIFICATIONS NEW YORK HAS REQUIRED
FOR ITS UNION FREE SCHOOL DISTRICT ELECTIONS AND QUALIFICATIONS BASED
ON FACTORS SUCH AS AGE, RESIDENCE, OR LITERACY.  /11/ 

TODAY'S DECISION CAN ONLY BE VIEWED AS IRRECONCILABLE WITH THE
ESTABLISHED PRINCIPLE THAT "(THE STATES HAVE . . . BROAD POWERS TO
DETERMINE THE CONDITIONS UNDER WHICH THE RIGHT OF SUFFRAGE MAY BE
EXERCISED . . . ."  SINCE I THINK THAT PRINCIPLE IS ENTIRELY SOUND, I
RESPECTFULLY DISSENT FROM THE COURT'S JUDGMENT AND OPINION. 

/1/  THE DISTRICT COURT'S STATEMENT TO THIS EFFECT HAS BEEN
EXPLICITLY REITERATED AND EMPHASIZED BY THE APPELLEES, AND THE
PROPOSITION IS APPARENTLY CONCEDED BY THE APPELLANT.  SEE N.Y. EDUC. 
LAW SECS. 416, 1717, 2021; N.Y. REAL PROP.  TAX LAW SECS. 1302, 1306,
1308. 

/2/  NEW YORK'S GENERAL AGE AND RESIDENCE REQUIREMENTS MUST ALSO BE
MET. 

/3/  SEE ALSO MCGOWAN V. MARYLAND, 366 U.S. 420, 425-426: 

"THE CONSTITUTIONAL SAFEGUARD IS OFFENDED ONLY IF THE CLASSIFICATION
RESTS ON GROUNDS WHOLLY IRRELEVANT TO THE ACHIEVEMENT OF THE STATE'S
OBJECTIVE.  STATE LEGISLATURES ARE PRESUMED TO HAVE ACTED WITHIN THEIR
CONSTITUTIONAL POWER DESPITE THE FACT THAT, IN PRACTICE, THEIR LAWS
RESULT IN SOME INEQUALITY.  A STATUTORY DISCRIMINATION WILL NOT BE SET
ASIDE IF ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO JUSTIFY
IT." 

/4/  POPE V. WILLIAMS, 193 U.S. 621; LASSITER V. NORTHAMPTON
ELECTION BD., 360 U.S. 45, 51; CARRINGTON V. RASH, 380 U.S. 89, 93-94,
96; SEE HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663, 666. 

/5/  LASSITER V. NORTHAMPTON ELECTION BD., 360 U.S.,AT 52. 

/6/  PRESUMABLY THE RATIONALE FOR INCLUDING LESSEES AND THEIR
SPOUSES IN THE ELECTORAL PROCESS IS THAT THE COST OF PROPERTY TAXES IS
IN MANY INSTANCES PASSED ON FROM OWNER TO LESSEE. 

/7/  KOREMATSU V. UNITED STATES, 323 U.S. 214, 216; MCLAUGHLIN V.
FLORIDA, 379 U.S. 184, 192. 

/8/  SHAPIRO V. THOMPSON, 394 U.S. 618, 634; CF. NAACP V. ALABAMA,
357 U.S. 449, 463. 

/9/  SPECIAL-PURPOSE GOVERNMENTAL AUTHORITIES SUCH AS WATER,
LIGHTING, AND SEWER DISTRICTS EXIST IN VARIOUS SECTIONS OF THE COUNTRY,
AND PARTICIPATION IN SUCH DISTRICTS IS UNDOUBTEDLY LIMITED IN MANY
INSTANCES TO THOSE WHO PARTAKE OF THE AGENCY'S SERVICES AND ARE
ASSESSED FOR ITS EXPENSES.  THE CONSTITUTIONAL VALIDITY OF SUCH A
POLICY IS, IT SEEMS TO ME, UNQUESTIONABLE.  AND WHILE IT IS TRUE, AS
THE APPELLANT ARGUES, THAT A SCHOOL SYSTEM HAS A MORE PERVASIVE
INFLUENCE IN THE COMMUNITY THAN DO MOST OTHER SUCH SPECIAL-PURPOSE
AUTHORITIES, I CANNOT AGREE THAT THAT DIFFERENCE IN DEGREE PRESENTS
ANYTHING APPROACHING A DISTINCTION OF CONSTITUTIONAL DIMENSION. 

/10/  COMPARE LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY, 377 U.S. 713,
WITH REYNOLDS V. SIMS, 377 U.S. 533.  SINCE CARRINGTON V. RASH, 380
U.S. 89, AND HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663, DEALT
WITH REQUIREMENTS FOR VOTING IN GENERAL ELECTIONS, THOSE DECISIONS DO
NOT CONTROL THE RESULT HERE. 

/11/  A COMPARISON OF THE CLASSIFICATION MADE BY NEW YORK WITH ONE
BASED ON LITERACY, FOR INSTANCE, PRESUMABLY WOULD ATTEMPT TO WEIGH THE
INTEREST OF THE PERSON EXCLUDED FROM VOTING AGAINST THE REASONABLENESS
OF THE LEGISLATIVE ASSUMPTION REGARDING HIS COMPETENCE AS A VOTER OR
HIS CONNECTION WITH THE SUBJECT MATTER OF THE ELECTION.  IN SUCH A
SPECULATIVE ANALYSIS PRECISION IS NOT ATTAINABLE; FOR THAT VERY REASON,
IT SEEMS TO ME, THE STANDARD OF ADJUDICATION SHOULD BE A REASONABLY
TOLERANT ONE.  BUT EVEN ASSUMING SUCH AN ANALYSIS WERE ATTEMPTED, IT
COULD NOT IN MY VIEW JUSTIFY DRAWING A CONSTITUTIONAL LINE BETWEEN THE
CLASSIFICATION INVOLVED HERE AND A LITERACY REQUIREMENT.  TRUE, THE
APPELLANT AND PERSONS IN HIS CLASS MIGHT BE THOUGHT TO HAVE GENERALLY
MORE ABILITY TO VOTE INTELLIGENTLY THAN DO ILLITERATES.  ON THE OTHER
HAND, ILLITERATE CITIZENS CLEARLY HAVE CONSIDERABLY MORE OF A STAKE IN
THE OUTCOME OF GENERAL ELECTIONS THAN DO THE MEMBERS OF THE APPELLANT'S
CLASS IN THE RESULT OF SCHOOL DISTRICT ELECTIONS. 

OSMOND K. FRAENKEL ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF AND MURRAY A. MILLER. 

JOHN P. JEHU ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLEES.  LOUIS
J. LEFKOWITZ, ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSCHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND DANIEL M. COHEN, ASSISTANT ATTORNEY
GENERAL, FILED A BRIEF FOR APPELLEE THE ATTORNEY GENERAL OF NEW YORK. 
..END :






PERKINS V. STANDARD OIL CO., 395 U.S. 642 


       PERKINS V. STANDARD OIL CO. OF CALIFORNIA. 

   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 624.  ARGUED APRIL 22-23, 1969.-- DECIDED JUNE 16,

           1969. 


PETITIONER, AN INDEPENDENT WHOLESALE AND RETAIL DISTRIBUTOR OF
GASOLINE AND OIL, BROUGHT THIS TREBLE-DAMAGE ACTION AGAINST HIS
SUPPLIER, STANDARD OIL CO., ALLEGING INJURIES RESULTING FROM
RESPONDENT'S PRICE DISCRIMINATIONS IN VIOLATION OF SEC. 2(A) OF THE
CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT.  THE EVIDENCE
SHOWED THAT FOR OVER TWO YEARS STANDARD'S CHARGES TO PETITIONER WERE
HIGHER THAN THOSE TO (1) ITS BRANDED DEALERS WHO COMPETED WITH
PETITIONER, AND (2) SIGNAL, A WHOLESALER, WHOSE GAS WAS SOLD TO A
SUBSIDIARY (WESTERN HYWAY), WHICH IN TURN SOLD TO WESTERN'S SUBSIDIARY
(REGAL), A MAJOR COMPETITOR OF PETITIONER, THE LOWER PRICE BEING PASSED
ON AT EACH STAGE, SO THAT REGAL WAS ABLE TO UNDERSELL PETITIONER.  THE
JURY RETURNED A VERDICT FOR PETITIONER.  THE COURT OF APPEALS, WHILE
FINDING STANDARD'S LIABILITY CLEAR FOR FAVORING THE BRANDED DEALERS,
HELD THE "FOURTH LEVEL" INJURIES PETITIONER SUSTAINED FROM THE IMPAIRED
COMPETITION WITH REGAL TOO FAR REMOVED FROM RESPONDENT TO COME WITHIN
THE ACT.  SINCE THE JURY'S VERDICT DID NOT DISCLOSE WHAT AMOUNT OF THE
DAMAGES AWARDED WAS ATTRIBUTABLE TO REGAL'S CONDUCT, THE COURT ORDERED
A NEW TRIAL.  THAT COURT FOR THE TRIAL JUDGE'S GUIDANCE ON RETRIAL ALSO
NOTED THAT ANY FINANCIAL LOSSES TO PETITIONER FROM THE INABILITY OF TWO
OF HIS CORPORATIONS TO PAY HIM AGREED BROKERAGE FEES FOR SECURING
GASOLINE, FOR RENTAL ON LEASES OF SERVICE STATIONS, AND FOR OTHER
INDEBTEDNESS WERE TOO INCIDENTAL TO SUPPORT RECOVERY UNDER THE
ANTITRUST LAWS.  HELD: 

1.  SECTION 2(A) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON
PATMAN ACT, APPLIES TO RESPONDENT'S PRICE DISCRIMINATIONS, WHICH ARE
NOT IMMUNIZED FROM COVERAGE UNDER THE STATUTE SIMPLY BECAUSE THE
PRODUCE INVOLVED PASSED THROUGH ADDITIONAL FORMAL EXCHANGES BEFORE
REACHING PETITIONER'S ACTUAL COMPETITOR.  CF. FTC V. FRED MEYER, INC.,
390 U.S. 341.  PP. 646-648. 

2.  THE EVIDENCE WAS SUFFICIENT TO SHOW A CAUSAL CONNECTION BETWEEN
STANDARD'S PRICE DISCRIMINATION AND THE DAMAGE TO PETITIONER'S
BUSINESS.  PP. 648-649. 

3.  SINCE PETITIONER WAS THE PRINCIPAL VICTIM OF STANDARD'S PRICE
DISCRIMINATION AND NOT JUST AN INNOCENT BYSTANDER, HE WAS ENTITLED TO
PRESENT EVIDENCE OF ALL HIS LOSSES TO THE JURY.  PP. 649-650. 

396 F.2D 809, REVERSED AND CASE REMANDED TO DISTRICT COURT FOR
REINSTATEMENT OF VERDICT AND JUDGMENT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1959 PETITIONER, CLYDE A. PERKINS, BROUGHT THIS CIVIL ANTITRUST
ACTION AGAINST THE STANDARD OIL COMPANY OF CALIFORNIA SEEKING TREBLE
DAMAGES UNDER SEC. 2 OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON
PATMAN ACT, /1/  FOR INJURIES ALLEGED TO HAVE RESULTED FROM STANDARD'S
PRICE DISCRIMINATIONS IN THE SALE OF GASOLINE AND OIL DURING A PERIOD
OF OVER TWO YEARS FROM 1955 TO 1957.  IN 1963, AFTER A LENGTHY AND
COMPLICATED TRIAL, THE JURY RETURNED A VERDICT FOR PERKINS AND ASSESSED
DAMAGES AGAINST STANDARD OF $333,404.57, WHICH, AFTER TREBLING BY THE
COURT AND AFTER THE ADDITION OF ATTORNEY'S FEES, RESULTED IN A TOTAL
JUDGMENT AGAINST STANDARD OF $1,298,213.71.  ON REVIEW, THE COURT OF
APPEALS FOR THE NINTH CIRCUIT HELD THAT THE ASSESSMENT OF DAMAGES
INCLUDED INJURIES TO PERKINS THAT WERE NOT RECOVERABLE UNDER THE ACT
AND THEREFORE ORDERED A NEW TRIAL.  STANDARD OIL CO. OF CALIFORNIA V.
PERKINS, 396 F.2D 809.  WE GRANTED CERTIORARI TO DETERMINE WHETHER THE
COURT OF APPEALS, IN REVERSING THE JUDGMENT, HAD CORRECTLY CONSTRUED
THE ROBINSON-PATMAN ACT. 

PETITIONER PERKINS ENTERED THE OIL AND GASOLINE BUSINESS IN 1928 AS
THE OPERATOR OF A SINGLE SERVICE STATION IN THE STATE OF WASHINGTON. 
BY THE MID-1950'S HE HAD BECOME ONE OF THE LARGEST INDEPENDENT
DISTRIBUTORS OF GASOLINE AND OIL IN BOTH WASHINGTON AND OREGON.  HE WAS
BOTH A WHOLESALER, OPERATING STORAGE PLANTS AND TRUCKING EQUIPMENT, AND
A RETAILER THROUGH HIS OWN PERKINS STATIONS.  FROM 1945 UNTIL 1957,
PERKINS PURCHASED SUBSTANTIALLY ALL OF HIS GASOLINE REQUIREMENTS FROM
STANDARD.  FROM 1955 TO 1957 STANDARD CHARGED PERKINS A HIGHER PRICE
FOR ITS GASOLINE AND OIL THAN STANDARD CHARGED TO ITS OWN BRANDED
DEALERS, /2/  WHO COMPETED WITH PERKINS, AND TO SIGNAL OIL & GAS CO., A
WHOLESALER WHOSE GAS EVENTUALLY REACHED THE PUMPS OF A MAJOR COMPETITOR
OF PERKINS.  PERKINS CONTENDS THAT STANDARD'S PRICE AND PRICE-RELATED
DISCRIMINATIONS AGAINST HIM SERIOUSLY HARMED HIS COMPETITIVE POSITION
AND FORCED HIM, IN 1957, TO SACRIFICE BY SALE WHAT REMAINED OF HIS ONCE
INDEPENDENT BUSINESS TO ONE OF THE MAJOR COMPANIES IN THE GASOLINE
BUSINESS, UNION OIL. 

MANY OF THE ELEMENTS OF LIABILITY ON THE PART OF STANDARD ARE NOT IN
DISPUTE.  STANDARD HAS ADMITTED THAT IT SOLD GASOLINE AND OIL TO ITS
BRANDED DEALERS AND TO SIGNAL OIL AT DISCRIMINATORILY LOWER PRICES THAN
THOSE AT WHICH IT SOLD TO PERKINS.  THE COURT OF APPEALS FOUND THAT
STANDARD'S LIABILITY FOR THE HARM DONE PERKINS BY THE FAVORABLE
TREATMENT OF THE BRANDED DEALERS WAS BEYOND DISPUTE.  OF THIS ASPECT OF
THE DAMAGES, THE COURT OF APPEALS SAID: 

     "THE BRANDED DEALERS PURCHASED GASOLINE AND OIL FROM STANDARD

  WHICH THEY IN TURN SOLD AT RETAIL.  WITH RESPECT TO THEM,

  PERKINS' STORY IS QUICKLY TOLD.  BECAUSE OF STANDARD'S FAVORITISM

  AND DISCRIMINATION THEY WERE ABLE TO AND DID OFFER LOWER PRICES

  AND BETTER SERVICES AND FACILITIES THAN PERKINS IN MARKETING AT

  RETAIL."  396 F.2D, AT 812. 

WITH REGARD TO PERKINS' DAMAGE RESULTING FROM STANDARD'S DISCRIMINATION
IN FAVOR OF SIGNAL OIL, HOWEVER, THE COURT OF APPEALS TOOK A DIFFERENT
VIEW BECAUSE OF THE FOLLOWING CIRCUMSTANCES UNDER WHICH THE
DISCRIMINATORY SALES WERE MADE.  STANDARD ADMITTEDLY SOLD GASOLINE TO
SIGNAL AT A LOWER PRICE THAN IT SOLD TO PERKINS.  SIGNAL SOLD THIS
STANDARD GASOLINE TO WESTERN HYWAY, WHICH IN TURN SOLD THE STANDARD
GASOLINE TO REGAL STATIONS CO., PERKINS' COMPETITOR.  PERKINS ALLEGED
THAT THE LOWER PRICE CHARGED SIGNAL BY STANDARD WAS PASSED ON TO
SIGNAL'S SUBSIDIARY WESTERN HYWAY, AND THEN TO WESTERN'S SUBSIDIARY,
REGAL.  REGAL'S STATIONS WERE THUS ABLE TO UNDERSELL PERKINS' STATIONS
AND, ACCORDING TO PERKINS, THE RESULTING COMPETITIVE HARM, ALONG WITH
THAT HE SUFFERED AT THE HANDS OF STANDARD'S FAVORED BRANDED DEALERS,
DESTROYED HIS ABILITY TO COMPETE AND EVENTUALLY FORCED HIM TO SELL WHAT
WAS LEFT OF HIS BUSINESS.  THE COURT OF APPEALS HELD, HOWEVER, THAT ANY
HARM SUFFERED BY PERKINS FROM IMPAIRED COMPETITION WITH REGAL STATIONS
WAS BEYOND THE SCOPE OF THE ROBINSON-PATMAN ACT BECAUSE REGAL WAS TOO
FAR REMOVED FROM STANDARD IN THE CHAIN OF DISTRIBUTION.  A SUBSTANTIAL
PART OF THE DAMAGES THE JURY ASSESSED AGAINST STANDARD, AS THE COURT OF
APPEALS VIEWED IT, MIGHT HAVE BEEN BASED UPON A FINDING THAT PERKINS
SUFFERED COMPETITIVE HARM FROM THE PRICE ADVANTAGE HELD BY REGAL
STATIONS.  THAT COURT, CONCLUDING THAT "THE WHOLE VERDICT IS TAINTED,
SINCE THE AMOUNT REFLECTED IN IT BY REGAL'S CONDUCT CANNOT BE
ASCERTAINED, . . ."  REVERSED THE JUDGMENT AND ORDERED A NEW TRIAL. 
396 F.2D, AT 813. 

WE DISAGREE WITH THE COURT OF APPEALS' CONCLUSION THAT SEC. 2 OF THE
CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT, DOES NOT APPLY TO
THE DAMAGES SUFFERED BY PERKINS AS A RESULT OF THE PRICE ADVANTAGE
GRANTED BY STANDARD TO SIGNAL, THEN BY SIGNAL TO WESTERN, THEN BY
WESTERN TO REGAL.  THE ACT, IN PERTINENT PART, PROVIDES: 

     "(A) IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE,
.

  . . EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE IN PRICE

  BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND

  QUALITY, . . . WHERE THE EFFECT OF SUCH DISCRIMINATION MAY BE

  SUBSTANTIALLY TO LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY

  IN ANY LINE OF COMMERCE, OR TO INJURE, DESTROY, OR PREVENT

  COMPETITION WITH ANY PERSON WHO EITHER GRANTS OR KNOWINGLY

  RECEIVES THE BENEFIT OF SUCH DISCRIMINATION, OR WITH CUSTOMERS OF

  EITHER OF THEM . . . ." 

THE COURT OF APPEALS READ THIS LANGUAGE AS LIMITING "THE DISTRIBUTING
LEVELS ON WHICH A SUPPLIER'S PRICE DISCRIMINATION WILL BE RECOGNIZED AS
POTENTIALLY INJURIOUS TO COMPETITION."  396 F.2D, AT 812.  ACCORDING TO
THAT COURT, THE COVERAGE OF THE ACT IS RESTRICTED TO INJURIES CAUSED BY
AN IMPAIRMENT OF COMPETITION WITH (1) THE SELLER ("ANY PERSON WHO . . .
GRANTS . . . SUCH DISCRIMINATION"), (2) THE FAVORED PURCHASER ("ANY
PERSON WHO . . . KNOWINGLY RECEIVES THE BENEFIT OF SUCH
DISCRIMINATION"), AND (3) CUSTOMERS OF THE DISCRIMINATING SELLER OR
FAVORED PURCHASER ("CUSTOMERS OF EITHER OF THEM").  HERE, PERKINS'
INJURIES RESULTED IN PART FROM IMPAIRED COMPETITION WITH A CUSTOMER
(REGAL) OF A CUSTOMER (WESTERN HYWAY) OF THE FAVORED PURCHASER
(SIGNAL).  THE COURT OF APPEALS TERMED THESE INJURIES "FOURTH LEVEL"
AND HELD THAT THEY WERE NOT PROTECTED BY THE ROBINSON-PATMAN ACT.  WE
CONCLUDE THAT THIS LIMITATION IS WHOLLY AN ARTIFICIAL ONE AND IS
COMPLETELY UNWARRANTED BY THE LANGUAGE OR PURPOSE OF THE ACT. 

IN FTC V. FRED MEYER, INC., 390 U.S. 341 (1968), WE HELD THAT A
RETAILER WHO BUYS THROUGH A WHOLESALER COULD BE CONSIDERED A "CUSTOMER"
OF THE ORIGINAL SUPPLIER WITHIN THE MEANING OF SEC. 2(D) OF THE
CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT, A SECTION DEALING
WITH DISCRIMINATION IN PROMOTIONAL ALLOWANCES WHICH IS CLOSELY
ANALOGOUS TO SEC. 2(A) INVOLVED IN THIS CASE.  IN MEYER, THE COURT
STATED THAT TO READ "CUSTOMER" NARROWLY WOULD BE WHOLLY UNTENABLE WHEN
VIEWED IN LIGHT OF THE PURPOSES OF THE ROBINSON-PATMAN ACT.  SIMILARLY,
TO READ "CUSTOMER" MORE NARROWLY IN THIS SECTION THAN WE DID IN THE
SANCTIONS OF THE ACT BY THE SIMPLE EXPEDIENT OF ADDING AN ADDITIONAL
LINK TO THE DISTRIBUTION CHAIN.  HERE, FOR EXAMPLE, STANDARD SUPPLIED
GASOLINE AND OIL TO SIGNAL.  SIGNAL, ALLEGEDLY BECAUSE IT FURNISHED
STANDARD WITH PART OF ITS VITAL SUPPLY OF CRUDE PETROLEUM, WAS ABLE TO
INSIST UPON A DISCRIMINATORILY LOWER PRICE.  HAD SIGNAL THEN SOLD ITS
GAS DIRECTLY TO THE REGAL STATIONS, GIVING REGAL STATIONS A COMPETITIVE
ADVANTAGE, THERE WOULD BE NO QUESTION, EVEN UNDER THE DECISION OF THE
COURT OF APPEALS IN THIS CASE, THAT A CLEAR VIOLATION OF THE ROBINSON
PATMAN ACT HAD BEEN COMMITTED.  INSTEAD OF SELLING DIRECTLY TO THE
RETAILER REGAL, HOWEVER, SIGNAL TRANSFERRED THE GASOLINE FIRST TO ITS
SUBSIDIARY, WESTERN HYWAY,WHICH IN TURN SUPPLIED THE REGAL STATIONS. 
SIGNAL OWNED 60% OF THE STOCK OF WESTERN HYWAY; WESTERN IN TURN OWNED
55% OF THE STOCK OF THE REGAL STATIONS.  WE FIND NO BASIS IN THE
LANGUAGE OR PURPOSE OF THE ACT FOR IMMUNIZING STANDARD'S PRICE
DISCRIMINATIONS SIMPLY BECAUSE THE PRODUCT IN QUESTION PASSED THROUGH
AN ADDITIONAL FORMAL EXCHANGE BEFORE REACHING THE LEVEL OF PERKINS'
ACTUAL COMPETITOR.  FROM PERKINS' POINT OF VIEW, THE COMPETITIVE HARM
DONE HIM BY STANDARD IS CERTAINLY NO LESS BECAUSE OF THE PRESENCE OF AN
ADDITIONAL LINK IN THIS PARTICULAR DISTRIBUTION CHAIN FROM THE PRODUCER
TO THE RETAILER.  HERE STANDARD DISCRIMINATED IN PRICE BETWEEN PERKINS
AND SIGNAL, AND THERE WAS EVIDENCE FROM WHICH THE JURY COULD CONCLUDE
THAT PERKINS WAS HARMED COMPETITIVELY WHEN SIGNAL'S PRICE ADVANTAGE WAS
PASSED ON TO PERKINS' RETAIL COMPETITOR REGAL.  THESE FACTS ARE
SUFFICIENT TO GIVE RISE TO RECOVERABLE DAMAGES UNDER THE ROBINSON
PATMAN ACT. 

BEFORE AN INJURED PARTY CAN RECOVER DAMAGES UNDER THE ACT, HE MUST,
OF COURSE, BE ABLE TO SHOW A CAUSAL CONNECTION BETWEEN THE PRICE
DISCRIMINATION IN VIOLATION OF THE ACT AND THE INJURY SUFFERED.  THIS
IS TRUE REGARDLESS OF THE "LEVEL" IN THE CHAIN OF DISTRIBUTION ON WHICH
THE INJURY OCCURS.  THE COURT BELOW HELD THAT, AS A MATTER OF LAW,
"SECTION 2(A) OF THE ACT DOES NOT RECOGNIZE A CAUSAL CONNECTION,
ESSENTIAL TO LIABILITY, BETWEEN A SUPPLIER'S PRICE DISCRIMINATION AND
THE TRADE PRACTICES OF A CUSTOMER AS FAR REMOVED ON THE DISTRIBUTIVE
LADDER AS REGAL WAS FROM STANDARD."  396 F.2D, AT 816.  AS WE HAVE
NOTED ABOVE, WE DO NOT ACCEPT SUCH AN ARTIFICIAL LIMITATION.  IF THERE
IS SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT AN INFERENCE OF
CAUSATION, THE ULTIMATE CONCLUSION AS TO WHAT THAT EVIDENCE PROVES IS
FOR THE JURY.  CONTINENTAL CO. V. UNION CARBIDE, 370 U.S. 690, 700-701
(1962).  HERE THE TRIAL JUDGE PROPERLY CHARGED THE JURY THAT PERKINS
HAD THE BURDEN OF SHOWING THAT ANY DAMAGE TO HIS BUSINESS WAS
PROXIMATELY CAUSED BY STANDARD'S PRICE DISCRIMINATIONS AND THERE WAS
SUBSTANTIAL EVIDENCE FROM WHICH THE JURY COULD INFER CAUSATION.  THERE
WAS EVIDENCE THAT SIGNAL RECEIVED A LOWER PRICE FROM STANDARD THAN DID
PERKINS, THAT THIS PRICE ADVANTAGE WAS PASSED ON, AT LEAST IN PART, TO
REGAL, AND THAT REGAL WAS THEREBY ABLE TO UNDERCUT PERKINS'  PRICE ON
GASOLINE.  FURTHERMORE, THERE WAS EVIDENCE THAT PERKINS REPEATEDLY
COMPLAINED TO STANDARD OFFICIALS THAT THE DISCRIMINATORY PRICE
ADVANTAGE GIVEN SIGNAL WAS BEING PASSED DOWN TO REGAL AND EVIDENCE THAT
STANDARD OFFICIALS WERE AWARE THAT PERKINS' BUSINESS WAS IN DANGER OF
BEING DESTROYED BY STANDARD'S DISCRIMINATORY PRACTICES.  THIS EVIDENCE
IS SUFFICIENT TO SUSTAIN THE JURY'S AWARD OF DAMAGES UNDER THE ROBINSON
PATMAN ACT. 

ONE OTHER MINOR GROUP OF DAMAGES WAS FOUND TO BE IMPROPER BY THE
COURT OF APPEALS AND WE CONCLUDE THAT THIS RULING WAS ALSO ERRONEOUS. 
PERKINS SUBMITTED SOME EVIDENCE TENDING TO SHOW THAT HE AS AN
INDIVIDUAL HAD SUFFERED FINANCIAL LOSSES BECAUSE THE TWO FAILING
PERKINS CORPORATIONS (PERKINS OF WASHINGTON AND PERKINS OF OREGON) WERE
UNABLE TO PAY HIM AGREED BROKERAGE FEES FOR SECURING GASOLINE, RENTAL
ON LEASES OF SERVICE STATIONS, AND OTHER INDEBTEDNESS.  THE COURT OF
APPEALS, IN ORDER TO GIVE GUIDANCE TO THE TRIAL JUDGE AT THE PROPOSED
NEW TRIAL, NOTED THAT, IN ITS OPINION, THESE DAMAGES WERE NOT
PROXIMATELY CAUSED BY STANDARD'S VIOLATIONS AND THAT PERKINS SHOULD NOT
RECOVER FOR THESE DAMAGES IN A SECOND TRIAL.  FOR THIS PROPOSITION THE
COURT OF APPEALS CITED KARSEAL CORP. V. RICHFIELD OIL CORP., 221 F.2D
358, 363, WHICH HELD THAT "THE RULE IS THAT ONE WHO IS ONLY
INCIDENTALLY INJURED BY A VIOLATION OF THE ANTITRUST LAWS,-- THE
BYSTANDER WHO WAS HIT BUT NOT AIMED AT,-- CANNOT RECOVER AGAINST THE
VIOLATOR."  IT IS CLEAR IN THIS CASE, HOWEVER, THAT PERKINS WAS NO MERE
INNOCENT BYSTANDER; HE WAS THE PRINCIPAL VICTIM OF THE PRICE
DISCRIMINATION PRACTICED BY STANDARD.  SINCE HE WAS DIRECTLY INJURED
AND WAS CLEARLY ENTITLED TO BRING THIS SUIT, HE WAS ENTITLED TO PRESENT
EVIDENCE OF ALL OF HIS LOSSES TO THE JURY.  MOREOVER, IT IS OBVIOUS
FROM THE OPINION OF THE COURT OF APPEALS THAT THIS QUESTION WAS BEING
DECIDED, NOT BECAUSE THERE WAS ANY REVERSIBLE ERROR AT THE FIRST TRIAL,
BUT IN ORDER TO GIVE GUIDANCE FOR THE CONDUCT OF ANY NEW TRIAL.  THE
RECORD IN THIS CASE DOES NOT SHOW THAT THE JURY INCLUDED AN AWARD FOR
ANY OF THESE MINOR ITEMS IN ITS JUDGMENT.  IT IS IMPOSSIBLE TO SAY THAT
THEY WERE INCLUDED BECAUSE THEY WERE NOT COVERED IN THE TRIAL JUDGE'S
CHARGE TO THE JURY.  WHILE THE TRIAL JUDGE TREATED MANY ITEMS OF DAMAGE
SPECIFICALLY, THERE WAS NO CHARGE-- EITHER SPECIFIC OR GENERAL-- UPON
WHICH THE JURY COULD HAVE FELT FREE TO INCLUDE SUCH ITEMS IN ITS
AWARD.  FOR THIS REASON, THE COURT OF APPEALS COULD NOT HAVE REVERSED
THE JURY'S VERDICT IN THIS CASE ON THIS GROUND. 

RESPONDENT HAS ARGUED IN ITS BRIEF SEVERAL MINOR TRIAL RULINGS WHICH
IT CONTENDS WERE IN ERROR.  MOST OF THESE ADDITIONAL ARGUMENTS WERE
REJECTED BY THE COURT OF APPEALS.  WE HAVE EXAMINED THE OTHERS AND FIND
THEM WITHOUT MERIT.  WE THEREFORE SEE NO NEED TO PROLONG THIS
LITIGATION WHICH BEGAN NEARLY 10 YEARS AGO.  THE JURY'S VERDICT AND
JUDGMENT SHOULD BE REINSTATED.                   IT IS SO ORDERED. 

/1/  SECTION 2 OF THE CLAYTON ACT, 38 STAT. 730, AS AMENDED, 49
STAT. 1526, 15 U.S.C. 13, PROVIDES IN PERTINENT PART AS FOLLOWS: 

"(A) IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY, WHERE EITHER OR ANY OF THE PURCHASES INVOLVED IN SUCH
DISCRIMINATION ARE IN COMMERCE, WHERE SUCH COMMODITIES ARE SOLD FOR
USE, CONSUMPTION, OR RESALE WITHIN THE UNITED STATES OR ANY TERRITORY
THEREOF OR THE DISTRICT OF COLUMBIA OR ANY INSULAR POSSESSION OR OTHER
PLACE UNDER THE JURISDICTION OF THE UNITED STATES, AND WHERE THE EFFECT
OF SUCH DISCRIMINATION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION OR
TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE, OR TO INJURE,
DESTROY, OR PREVENT COMPETITION WITH ANY PERSON WHO EITHER GRANTS OR
KNOWINGLY RECEIVES THE BENEFIT OF SUCH DISCRIMINATION, OR WITH
CUSTOMERS OF EITHER OF THEM . . . ." 

/2/  BRANDED DEALERS WERE INDEPENDENT OPERATORS OF STANDARD'S SIGNAL
AND CHEVRON STATIONS WHO MARKETED GASOLINE AND OIL UNDER STANDARD'S
BRAND NAMES.  DURING THE CLAIM PERIOD THE SIGNAL BRANDED DEALERS HAD NO
CONNECTION WITH SIGNAL OIL & GAS CO., WHICH IS INVOLVED IN THIS
LITIGATION AS A WHOLESALER. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE STEWART JOINS,
CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT THAT THE JUDGMENT OF THE COURT OF APPEALS
CANNOT BE AFFIRMED.  BUT I CANNOT AGREE EITHER WITH THE BROAD, AND
SOMEWHAT VAGUE, GROUND OF DECISION CHOSEN BY THE COURT OR WITH THE
CONCLUSION THAT THE JURY VERDICT IN THIS CASE MUST BE REINSTATED. 

AS I VIEW IT, THIS CASE POSES ONLY A VERY NARROW QUESTION. 
RESPONDENT DISCRIMINATED IN PRICE IN FAVOR OF SIGNAL OIL & GAS CO.
THROUGH A CHAIN OF MAJORITY-OWNED SUBSIDIARIES, SIGNAL MARKETED THIS
GASOLINE AT STATIONS WHICH COMPETED WITH PETITIONER'S OUTLETS.  SINCE
WE ARE DEALING WITH A CHAIN OF MAJORITY-OWNED SUBSIDIARIES, IT SEEMS
QUITE LIKELY THAT THE DISCRIMINATORY PRICE GIVEN SIGNAL WOULD HAVE A
VITAL EFFECT ON THE PRICING DECISIONS OF THE STATIONS WHICH EVENTUALLY
MARKETED SIGNAL'S GASOLINE.  EVEN IF THE LOWER PRICE WERE NOT PASSED ON
TO THE COMPANY MARKETING THE GASOLINE, THAT COMPANY WOULD BE MORE
WILLING TO ACCEPT LOSSES IN A PROTRACTED PRICE WAR IF IT KNEW THAT ITS
"GRANDFATHER" CORPORATION WERE MAKING SOME EXTRA, AND PARTIALLY
OFFSETTING, PROFITS.  FOR THIS REASON, AND SINCE IN INTERPRETING THE
ANTITRUST LAWS "(WE MUST LOOK AT THE ECONOMIC REALITY OF THE RELEVANT
TRANSACTIONS," UNITED STATES V. CONCENTRATED PHOSPHATE EXPORT ASSN.,
INC., 393 U.S. 199, 208 (1968), I WOULD TREAT SIGNAL, THE BENEFICIARY
OF THE DISCRIMINATORY PRICE, AS IF IT WERE DIRECTLY COMPETING WITH
PETITIONER'S STATIONS.  RESPONDENT'S PRICE DISCRIMINATION, ON THIS
VIEW, IN EFFECT INJURED COMPETITION WITH A COMPANY WHICH "KNOWINGLY
RECEIVED) THE BENEFIT OF SUCH DISCRIMINATION," CLAYTON ACT SEC. 2(A),
38 STAT. 730, AS AMENDED BY THE ROBINSON-PATMAN ACT, 49 STAT. 1526, 15
U.S.C. 13(A), AND THE CASE COULD PROPERLY GO TO THE JURY FOR
DETERMINATION OF "CAUSATION" AND DAMAGES.  ACCORDINGLY, I SEE NO REASON
TO INTIMATE, EVEN BY INDIRECTION, WHAT THE RESULT WOULD BE IF WHOLLY
INDEPENDENT FIRMS HAD INTERVENED IN THE DISTRIBUTION CHAIN.  I WOULD
THEREFORE EXPLICITLY LIMIT THE HOLDING TO THE FACTS OF THE CASE BEFORE
US. 

MOREOVER, I SEE NO REASON FOR THE COURT TO UNDERTAKE THE DIFFICULT
TASK OF SORTING OUT ALL THE OTHER ISSUES IN THIS CASE.  THE COURT OF
APPEALS BASED ITS REVERSAL SOLELY ON ITS VIEW OF THE "FOURTH LINE
INJURY" PROBLEM.  OTHER ISSUES WERE TREATED ON THE ASSUMPTION THAT THE
CASE WOULD HAVE TO GO BACK FOR TRIAL.  THE RECORD IN THIS CASE IS LONG
AND COMPLICATED AND WE HAVE NO IDEA WHAT VIEW THE COURT OF APPEALS
WOULD HAVE TAKEN ABOUT RESPONDENT'S OTHER ALLEGATIONS OF ERROR HAD THE
MAJOR PROP FOR ITS DECISION BEEN REMOVED.  THE LAW UNDER THE ROBINSON
PATMAN ACT IS CONVOLUTED ENOUGH WITHOUT THE ADDITION OF NUMEROUS
EXPLICIT AND IMPLICIT HOLDINGS WHICH MAY COME BACK TO BEDEVIL US IN
FUTURE YEARS.  I WOULD LEAVE THESE OTHER PROBLEMS UNRESOLVED SO THAT
THE COURT OF APPEALS CAN LOOK AT THEM ANEW IN THE CONTEXT OF THIS
COURT'S HOLDING ON THE MAJOR ISSUE OF GENERAL IMPORTANCE PRESENTED BY
THE PETITION FOR CERTIORARI. 

EARL W. KINTNER AND GEORGE R. KUCIK ARGUED THE CAUSE FOR
PETITIONER.  WITH THEM ON THE BRIEFS WERE THOMAS L. SIEGEL, ROGER
TILBURY, ERNEST BONYHADI, AND BRUCE M. HALL. 

RICHARD J. MACLAURY ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE FRANCIS R. KIRKHAM AND H. HELMUT LORING. 
..END :




















LEAR, INC. V. ADKINS, 395 U.S. 653 


       LEAR, INC. V. ADKINS. 

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

        NO. 56.  ARGUED NOVEMBER 20-21, 1968.-- DECIDED JUNE 16,

           1969. 


RESPONDENT, AN ENGINEER AND INVENTOR, WAS HIRED IN 1952 BY PETITIONER
(LEAR) TO HELP SOLVE GYROSCOPE DEVELOPMENT PROBLEMS.  THEY HAD AGREED
THAT "NEW IDEAS, DISCOVERIES, INVENTIONS ETC. RELATED TO . . . VERTICAL
GYROS BECOME THE PROPERTY OF" RESPONDENT, AND THAT THE INVENTOR WOULD
GRANT LEAR A LICENSE AS TO ALL IDEAS HE MIGHT DEVELOP "ON A MUTUALLY
SATISFACTORY ROYALTY BASIS."  SHORTLY THEREAFTER RESPONDENT DEVELOPED A
METHOD FOR IMPROVING GYROS WHICH LEAR INCORPORATED INTO ITS PRODUCTION
PROCESS.  IN 1954 RESPONDENT FILED A PATENT APPLICATION COVERING THESE
IMPROVEMENTS AND ENTERED INTO LICENSING NEGOTIATIONS WITH LEAR TO
ESTABLISH A ROYALTY RATE.  AN AGREEMENT, CONCLUDED IN 1955, PROVIDED
THAT IF THE "PATENT OFFICE REFUSES TO ISSUE A PATENT . . . OR IF SUCH A
PATENT SO ISSUED IS SUBSEQUENTLY HELD INVALID . . . LEAR AT ITS OPTION
SHALL HAVE THE RIGHT FORTHWITH TO TERMINATE THE SPECIFIC LICENSE SO
AFFECTED OR TO TERMINATE THIS ENTIRE AGREEMENT . . . ."  A PATENT WAS
ISSUED TO RESPONDENT IN 1960, AFTER SEVERAL REJECTIONS OF THE
APPLICATION, IN 1957 LEAR STATED THAT A PATENT OFFICE SEARCH DISCLOSED
A PATENT WHICH FULLY ANTICIPATED RESPONDENT'S DISCOVERY AND THAT IT
WOULD NO LONGER PAY ROYALTIES ON THE GYROS IT PRODUCED IN ITS MICHIGAN
PLANT, ALTHOUGH IT CONTINUED TO PAY ROYALTIES ON GYROS PRODUCED IN ITS
CALIFORNIA PLANT UNTIL 1959.  UPON RECEIPT OF HIS PATENT RESPONDENT
BROUGHT SUIT IN THE CALIFORNIA COURTS CLAIMING THAT BOTH THE MICHIGAN
AND CALIFORNIA GYROS USED HIS PATENT AND THAT LEAR'S FAILURE TO PAY
ROYALTIES BREACHED THE 1955 CONTRACT AND LEAR'S QUASI-CONTRACTUAL
OBLIGATIONS.  ALTHOUGH LEAR TRIED TO RAISE PATENT INVALIDITY AS A
DEFENSE, THE TRIAL JUDGE DIRECTED A VERDICT FOR RESPONDENT ON THE
CALIFORNIA GYROS, HOLDING THAT LEAR WAS ESTOPPED BY ITS LICENSING
AGREEMENT FROM QUESTIONING THE LICENSOR'S PATENT.  SINCE LEAR CLAIMED
THAT IT DEVELOPED ITS MICHIGAN GYRO DESIGNS INDEPENDENTLY OF
RESPONDENT'S IDEAS, THE JUDGE INSTRUCTED THE JURY TO AWARD RECOVERY TO
THE INVENTOR ONLY IF IT WAS SATISFIED THAT THE INVENTION WAS NOVEL. 
WHEN THE JURY RETURNED A SUBSTANTIAL VERDICT FOR RESPONDENT ON THE
MICHIGAN GYROS THE JUDGE GRANTED LEAR'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT, FINDING THAT THE INVENTION HAD BEEN
COMPLETELY ANTICIPATED BY THE PRIOR ART. THE CALIFORNIA SUPREME COURT
HELD THAT THE 1955 AGREEMENT WAS STILL IN EFFECT, THAT LEAR DID NOT
HAVE THE RIGHT THEREUNDER TO TERMINATE ITS ROYALTY OBLIGATIONS IN 1959,
AND THAT THE DOCTRINE OF ESTOPPEL BARRED LEAR FROM QUESTIONING THE
PATENT.  NOTING LEAR'S CLAIM THAT IT HAD DEVELOPED THE MICHIGAN GYROS
INDEPENDELTY, THE COURT CONSIDERED "WHETHER WHAT IS BEING BUILT BY LEAR
(IN MICHIGAN) SPRINGS ENTIRELY FROM THE PRIOR ART," FOUND THAT LEAR HAD
IN FACT UTILIZED THE PATENT THROUGHOUT THE PERIOD IN QUESTION, AND
REINSTATED THE JURY'S VERDICT.  HELD: 

1.  SINCE THE CALIFORNIA SUPREME COURT'S CONSTRUCTION OF THE 1955
LICENSING AGREEMENT IS SOLELY A MATTER OF STATE LAW, THE ONLY ISSUE
OPEN HERE IS RAISED BY THE COURT'S RELIANCE ON THE DOCTRINE OF ESTOPPEL
TO BAR LEAR FROM CONTESTING THE VALIDITY OF THE PATENT.  PP. 661-662. 

2.  IN THE ACCOMMODATION OF (1) THE COMMON LAW OF CONTRACTS, AND (2)
THE FEDERAL LAW OF PATENTS REQUIRING THAT ALL IDEAS IN GENERAL
CIRCULATION BE DEDICATED TO THE COMMON GOOD UNLESS THEY ARE PROTECTED
BY A VALID PATENT, THE TECHNICAL REQUIREMENTS OF CONTRACT DOCTRINE MUST
YIELD TO THE DEMANDS OF THE PUBLIC INTEREST IN THE TYPICAL SITUATION
INVOLVING THE NEGOTIATION OF A LICENSE AFTER A PATENT HAS ISSUED.  THE
HOLDING OF AUTOMATIC RADIO MANUFACTURING CO. V. HAZELTINE RESEARCH,
INC., 339 U.S. 827, 836, THAT LICENSEE ESTOPPEL WAS "THE GENERAL RULE,"
IS OVERRULED.  PP. 668-671. 

3.  OVERRIDING FEDERAL POLICIES WOULD BE SIGNIFICANTLY FRUSTRATED IF
LICENSEES COULD BE REQUIRED TO CONTINUE TO PAY ROYALTIES WHILE
CHALLENGING PATENT VALIDITY IN THE COURTS, AND IN THIS CASE LEAR MUST
BE PERMITTED TO AVOID PAYMENT OF ALL ROYALTIES ACCRUING AFTER THE
ISSUANCE OF THE PATENT IF LEAR CAN PROVE THAT THE PATENT IS INVALID. 
PP. 671-674. 

4.  RESPONDENT'S CLAIM TO CONTRACTUAL ROYALTIES ACCRUING BEFORE THE
ISSUANCE OF THE PATENT, WHICH RAISES THE QUESTION OF WHETHER, AND TO
WHAT EXTENT, THE STATES MAY PROTECT THE OWNERS OF UNPATENTED INVENTIONS
WHO ARE WILLING TO DISCLOSE THEIR IDEAS ONLY UPON THE PAYMENT OF
ROYALTIES IS REMANDED FOR SPECIFIC CONSIDERATION BY THE CALIFORNIA
COURTS.  PP. 674-675. 

5.  IT IS INAPPROPRIATE AT THIS TIME TO PASS UPON LEAR'S CONTENTION
THAT THE PATENT IS INVALID, AS LEAR MUST ADDRESS ITS ARGUMENTS
ATTACKING THE VALIDITY OF THE UNDERLYING PATENT TO THE CALIFORNIA
COURTS IN THE FIRST INSTANCE.  PP. 675-676. 

67 CAL.2D 882, 435 P.2D 321, VACATED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN JANUARY OF 1952, JOHN ADKINS, AN INVENTOR AND MECHANICAL ENGINEER,
WAS HIRED BY LEAR, INCORPORATED, FOR THE PURPOSE OF SOLVING A VEXING
PROBLEM THE COMPANY HAD ENCOUNTERED IN ITS EFFORTS TO DEVELOPE A
GYROSCOPE WHICH WOULD MEET THE INCREASINGLY DEMANDING REQUIREMENTS OF
THE AVIATION INDUSTRY.  THE GYROSCOPE IS AN ESSENTIAL COMPONENT OF THE
NAVIGATIONAL SYSTEM IN ALL AIRCRAFT, ENABLING THE PILOT TO LEARN THE
DIRECTION AND ATTITUDE OF HIS AIRPLANE.  WITH THE DEVELOPMENT OF THE
FASTER AIRPLANES OF THE 1950'S, MORE ACCURATE GYROSCOPES WERE NEEDED,
AND THE GYRO INDUSTRY CONSEQUENTLY WAS CASTING ABOUT FOR NEW TECHNIQUES
WHICH WOULD SATISFY THIS NEED IN AN ECONOMICAL FASHION.  SHORTLY AFTER
ADKINS WAS HIRED, HE DEVELOPED A METHOD OF CONSTRUCTION AT THE
COMPANY'S CALIFORNIA FACILITIES WHICH IMPROVED GYROSCOPE ACCURACY AT A
LOW COST.  LEAR ALMOST IMMEDIATELY INCORPORATED ADKINS' IMPROVEMENTS
INTO ITS PRODUCTION PROCESS TO ITS SUBSTANTIAL ADVANTAGE. 

THE QUESTION THAT REMAINS UNSETTLED IN THIS CASE, AFTER EIGHT YEARS
OF LITIGATION IN THE CALIFORNIA COURTS, IS WHETHER ADKINS WILL RECEIVE
COMPENSATION FOR LEAR'S USE OF THOSE IMPROVEMENTS WHICH THE INVENTOR
HAS SUBSEQUENTLY PATENTED.  AT EVERY STAGE OF THIS LAWSUIT, LEAR HAS
SOUGHT TO PROVE THAT, DESPITE THE GRANT OF A PATENT BY THE PATENT
OFFICE, NONE OF ADKINS' IMPROVEMENTS WERE SUFFICIENTLY NOVEL TO WARRANT
THE AWARD OF A MONOPOLY UNDER THE STANDARDS DELINEATED IN THE GOVERNING
FEDERAL STATUTES.  MOREOVER, THE COMPANY HAS SOUGHT TO PROVE THAT
ADKINS OBTAINED HIS PATENT BY MEANS OF A FRAUD ON THE PATENT OFFICE. 
IN RESPONSE, THE INVENTOR HAS ARGUED THAT SINCE LEAR HAD ENTERED INTO A
LICENSING AGREEMENT WITH ADKINS, IT WAS OBLIGED TO PAY THE AGREED
ROYALTIES REGARDLESS OF THE VALIDITY OF THE UNDERLYING PATENT. 

THE SUPREME COURT OF CALIFORNIA UNANIMOUSLY VINDICATED THE
INVENTOR'S POSITION.  WHILE THE COURT RECOGNIZED THAT GENERALLY A
MANUFACTURER IS FREE TO CHALLENGE THE VALIDITY OF AN INVENTOR'S PATENT,
IT HELD THAT "ONE OF THE OLDEST DOCTRINES IN THE FIELD OF PATENT LAW
ESTABLISHES THAT SO LONG AS A LICENSEE IS OPERATING UNDER A LICENSE
AGREEMENT HE IS ESTOPPED TO DENY THE VALIDITY OF HIS LICENSOR'S PATENT
IN A SUIT FOR ROYALTIES UNDER THE AGREEMENT.  THE THEORY UNDERLYING
THIS DOCTRINE IS THAT A LICENSEE SHOULD NOT BE PERMITTED TO ENJOY THE
BENEFIT AFFORDED BY THE AGREEMENT WHILE SIMULTANEOUSLY URGING THAT THE
PATENT WHICH FORMS THE BASIS OF THE AGREEMENT IS VOID."  67 CAL.2D 882,
891, 435 P.2D 321, 325-326 (1967). 

ALMOST 20 YEARS AGO, IN ITS LAST CONSIDERATION OF THE DOCTRINE, THIS
COURT ALSO INVOKED AN ESTOPPEL TO DENY A LICENSEE THE RIGHT TO PROVE
THAT HIS LICENSOR WAS DEMANDING ROYALTIES FOR THE USE OF AN IDEA WHICH
WAS IN REALITY A PART OF THE PUBLIC DOMAIN.  AUTOMATIC RADIO
MANUFACTURING CO. V. HAZELTINE RESEARCH, INC., 339 U.S. 827, 836
(1950).  WE GRANTED CERTIORARI IN THE PRESENT CASE, 391 U.S. 912, TO
RECONSIDER THE VALIDITY OF THE HAZELTINE RULE IN THE LIGHT OF OUR
RECENT DECISIONS EMPHASIZING THE STRONG FEDERAL POLICY FAVORING FREE
COMPETITION IN IDEAS WHICH DO NOT MERIT PATENT PROTECTION.  SEARS,
ROEBUCK V. STIFFEL CO., 376 U.S. 225 (1964); COMPCO CORP. V. DAY-BRITE
LIGHTING, INC., 376 U.S. 234 (1964). 

        I. 

AT THE VERY BEGINNING OF THE PARTIES' RELATIONSHIP, LEAR AND ADKINS
ENTERED INTO A RUDIMENTARY ONE-PAGE AGREEMENT WHICH PROVIDED THAT
ALTHOUGH "(ALL NEW IDEAS, DISCOVERIES, INVENTIONS, ETC., RELATED TO . .
. VERTICAL GYROS BECOME THE PROPERTY OF MR. JOHN S. ADKINS," THE
INVENTOR PROMISED TO GRANT LEAR A LICENSE AS TO ALL IDEAS HE MIGHT
DEVELOP "ON A MUTUALLY SATISFACTORY ROYALTY BASIS."  /1/  AS SOON AS
ADKINS' LABORS YIELDED TANGIBLE RESULTS, IT QUICKLY BECAME APPARENT TO
THE INVENTOR THAT FURTHER STEPS SHOULD BE TAKEN TO PLACE HIS RIGHTS TO
HIS IDEAS ON A FIRMER BASIS.  ON FEBRUARY 4, 1954, ADKINS FILED AN
APPLICATION WITH THE PATENT OFFICE IN AN EFFORT TO GAIN FEDERAL
PROTECTION FOR HIS IMPROVEMENTS.  AT ABOUT THE SAME TIME, HE ENTERED
INTO A LENGTHY PERIOD OF NEGOTIATIONS WITH LEAR IN AN EFFORT TO
CONCLUDE A LICENSING AGREEMENT WHICH WOULD CLEARLY ESTABLISH THE AMOUNT
OF ROYALTIES THAT WOULD BE PAID. 

THESE NEGOTIATIONS FINALLY BORE FRUIT ON SEPTEMBER 15, 1955, WHEN
THE PARTIES APPROVED A COMPLEX 17-PAGE CONTRACT WHICH CAREFULLY
DELINEATED THE CONDITIONS UPON WHICH LEAR PROMISED TO PAY ROYALTIES FOR
ADKINS' IMPROVEMENTS.  THE PARTIES AGREED THAT IF "THE U.S. PATENT
OFFICE REFUSES TO ISSUE A PATENT ON THE SUBSTANTIAL CLAIMS (CONTAINED
IN ADKINS' ORIGINAL PATENT APPLICATION) OR IF SUCH A PATENT SO ISSUED
IS SUBSEQUENTLY HELD INVALID, THEN IN ANY OF SUCH EVENTS LEAR AT ITS
OPTION SHALL HAVE THE RIGHT FORTHWITH TO TERMINATE THE SPECIFIC LICENSE
SO AFFECTED OR TO TERMINATE THIS ENTIRE AGREEMENT . . . ."  SEC. 6.  (2
APP. 138.) 

AS THE CONTRACTUAL LANGUAGE INDICATES, ADKINS HAD NOT OBTAINED A
FINAL PATENT OFFICE DECISION AS TO THE PATENTABILITY OF HIS INVENTION
AT THE TIME THE LICENSING AGREEMENT WAS CONCLUDED.  INDEED, HE WAS NOT
TO RECEIVE A PATENT UNTIL JANUARY 5, 1960.  THIS LONG DELAY HAS ITS
SOURCE IN THE SPECIAL CHARACTER OF PATENT OFFICE PROCEDURES.  THE
REGULATIONS DO NOT REQUIRE THE OFFICE TO MAKE A FINAL JUDGMENT ON AN
INVENTION'S PATENTABILITY ON THE BASIS OF THE INVENTOR'S ORIGINAL
APPLICATION.  /2/  WHILE IT SOMETIMES HAPPENS THAT A PATENT IS GRANTED
AT THIS EARLY STAGE, IT IS FAR MORE COMMON FOR THE OFFICE TO FIND THAT
ALTHOUGH CERTAIN OF THE APPLICANT'S CLAIMS MAY BE PATENTABLE, CERTAIN
OTHERS HAVE BEEN FULLY ANTICIPATED BY THE EARLIER DEVELOPMENTS IN THE
ART. IN SUCH A SITUATION, THE PATENT OFFICE DOES NOT ATTEMPT TO
SEPARATE THE WHEAT FROM THE CHAFF ON ITS OWN INITIATIVE.  INSTEAD, IT
REJECTS THE APPLICATION, GIVING THE INVENTOR THE RIGHT TO MAKE AN
AMENDMENT WHICH NARROWS HIS CLAIM TO COVER ONLY THOSE ASPECTS OF THE
INVENTION WHICH ARE TRULY NOVEL.  /3/  IT OFTEN HAPPENS, HOWEVER, THAT
EVEN AFTER AN APPLICATION IS AMENDED, THE PATENT OFFICE FINDS THAT SOME
OF THE REMAINING CLAIMS ARE UNPATENTABLE.  WHEN THIS OCCURS, THE AGENCY
AGAIN ISSUES A REJECTION WHICH IS SUBJECT TO FURTHER AMENDMENT.  /4/
AND SO THE PROCESS OF REJECTION AND AMENDMENT CONTINUES UNTIL THE
PATENT OFFICE EXAMINER EITHER GRANTS A PATENT OR CONCLUDES THAT NONE OF
THE INVENTOR'S CLAIMS COULD POSSIBLY BE PATENTABLE, AT WHICH TIME A
FINAL REJECTION IS ENTERED ON THE OFFICE'S RECORDS.  /5/  THUS, WHEN
ADKINS MADE HIS ORIGINAL APPLICATION IN 1954, IT TOOK THE AVERAGE
INVENTOR MORE THAN THREE YEARS BEFORE HE OBTAINED A FINAL
ADMINISTRATIVE DECISION ON THE PATENTABILITY OF HIS IDEAS, WITH THE
PATENT OFFICE ACTING ON THE AVERAGE APPLICATION FROM TWO TO FOUR
TIMES.  /6/ 

THE PROGRESS OF ADKINS' EFFORT TO OBTAIN A PATENT FOLLOWED THE
TYPICAL PATTERN.  IN HIS INITIAL APPLICATION, THE INVENTOR MADE THE
AMBITIOUS CLAIM THAT HIS ENTIRE METHOD OF CONSTRUCTING GYROSCOPES WAS
SUFFICIENTLY NOVEL TO MERIT PROTECTION.  THE PATENT OFFICE, HOWEVER,
REJECTED THIS INITIAL CLAIM, AS WELL AS TWO SUBSEQUENT AMENDMENTS,
WHICH PROGRESSIVELY NARROWED THE SCOPE OF THE INVENTION SOUGHT TO BE
PROTECTED.  FINALLY, ADKINS NARROWED HIS CLAIM DRASTICALLY TO ASSERT
ONLY THAT THE DESIGN OF THE APPARATUS USED TO ACHIEVE GYROSCOPE
ACCURACY WAS NOVEL.  /7/  IN RESPONSE, THE OFFICE ISSUED ITS 1960
PATENT, GRANTING A 17-YEAR MONOPOLY ON THIS MORE MODEST CLAIM. 

DURING THE LONG PERIOD IN WHICH ADKINS WAS ATTEMPTING TO CONVINCE
THE PATENT OFFICE OF THE NOVELTY OF HIS IDEAS, HOWEVER, LEAR HAD BECOME
CONVINCED THAT ADKINS WOULD NEVER RECEIVE A PATENT ON HIS INVENTION AND
THAT IT SHOULD NOT CONTINUE TO PAY SUBSTANTIAL ROYALTIES ON IDEAS WHICH
HAD NOT CONTRIBUTED SUBSTANTIALLY TO THE DEVELOPMENT OF THE ART OF
GYROSCOPY.  IN 1957, AFTER ADKINS' PATENT APPLICATION HAD BEEN REJECTED
TWICE, LEAR ANNOUNCED THAT IT HAD SEARCHED THE PATENT OFFICE'S FILES
AND HAD FOUND A PATENT WHICH IT BELIEVED HAD FULLY ANTICIPATED ADKINS'
DISCOVERY.  AS A RESULT, THE COMPANY STATED THAT IT WOULD NO LONGER PAY
ROYALTIES ON THE LARGE NUMBER OF GYROSCOPES IT WAS PRODUCING AT ITS
PLANT IN GRAND RAPIDS, MICHIGAN (THE MICHIGAN GYROS).  PAYMENTS WERE
CONTINUED ON THE SMALLER NUMBER OF GYROS PRODUCED AT THE COMPANY'S
CALIFORNIA PLANT (THE CALIFORNIA GYROS) FOR TWO MORE YEARS UNTIL THEY
TOO WERE TERMINATED ON APRIL 8, 1959. 

AS SOON AS ADKINS OBTAINED HIS PATENT IN 1960, HE BROUGHT THIS
LAWSUIT IN THE CALIFORNIA SUPERIOR COURT.  HE ARGUED TO A JURY THAT
BOTH THE MICHIGAN AND THE CALIFORNIA GYROS INCORPORATED HIS PATENTED
APPARATUS AND THAT LEAR'S FAILURE TO PAY ROYALTIES ON THESE GYROS WAS A
BREACH BOTH OF THE 1955 CONTRACT AND OF LEAR'S QUASI-CONTRACTUAL
OBLIGATIONS.  ALTHOUGH LEAR SOUGHT TO RAISE PATENT INVALIDITY AS A
DEFENSE, THE TRIAL JUDGE DIRECTED A VERDICT OF $16,351.93 FOR ADKINS ON
THE CALIFORNIA GYROS, HOLDING THAT LEAR WAS ESTOPPED BY ITS LICENSING
AGREEMENT FROM QUESTIONING THE INVENTOR'S PATENT.  THE TRIAL JUDGE TOOK
A DIFFERENT APPROACH WHEN IT CAME TO CONSIDERING THE MICHIGAN GYROS. 
NOTING THAT THE COMPANY CLAIMED THAT IT HAD DEVELOPED ITS MICHIGAN
DESIGNS INDEPENDELTY OF ADKINS' IDEAS, THE COURT INSTRUCTED THE JURY TO
AWARD THE INVENTOR RECOVERY ONLY IF IT WAS SATISFIED THAT ADKINS'
INVENTION WAS NOVEL, WITHIN THE MEANING OF THE FEDERAL PATENT LAWS. 
WHEN THE JURY RETURNED A VERDICT FOR ADKINS OF $888,122.56 ON THE
MICHIGAN GYROS, /8/  THE TRIAL JUDGE GRANTED LEAR'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT, FINDING THAT ADKINS' INVENTION HAD BEEN
COMPLETELY ANTICIPATED BY THE PRIOR ART. /9/ 

NEITHER SIDE WAS SATISFIED WITH THIS SPLIT DECISION, AND BOTH
APPEALED TO THE CALIFORNIA DISTRICT COURT OF APPEAL, WHICH ADOPTED A
QUITE DIFFERENT APPROACH.  THE COURT HELD THAT LEAR WAS WITHIN ITS
CONTRACTUAL RIGHTS IN TERMINATING ITS ROYALTY OBLIGATIONS ENTIRELY IN
1959, AND THAT IF ADKINS DESIRED TO RECOVER DAMAGES AFTER THAT DATE HE
WAS "RELEGATED TO AN ACTION FOR INFRINGEMENT" IN THE FEDERAL COURTS. 
52 CAL.RPTR.  795, 806.  SO FAR AS PRE-1959 ROYALTIES WERE CONCERNED,
THE COURT HELD THAT THE CONTRACT REQUIRED THE COMPANY TO PAY ROYALTIES
ON BOTH THE CALIFORNIA AND MICHIGAN GYROS REGARDLESS OF THE VALIDITY OF
THE INVENTOR'S PATENT.  52 CAL.RPTR.,AT 809. 

ONCE AGAIN BOTH SIDES APPEALED, THIS TIME TO THE CALIFORNIA SUPREME
COURT WHICH TOOK YET ANOTHER APPROACH TO THE PROBLEM PRESENTED.  THE
COURT REJECTED THE DISTRICT COURT OF APPEAL'S CONCLUSION THAT THE 1955
LICENSE GAVE LEAR THE RIGHT TO TERMINATE ITS ROYALTY OBLIGATIONS IN
1959.  SINCE THE 1955 AGREEMENT WAS STILL IN EFFECT, THE COURT
CONCLUDED, RELYING ON THE LANGUAGE WE HAVE ALREADY QUOTED, THAT THE
DOCTRINE OF ESTOPPEL BARRED LEAR FROM QUESTIONING THE PROPRIETY OF THE
PATENT OFFICE'S GRANT.  67 CAL.2D,AT 907, 435 P.2D,AT 336.  THE COURT'S
ADHERENCE TO ESTOPPEL, HOWEVER, WAS NOT WITHOUT QUALIFICATION.  AFTER
NOTING LEAR'S CLAIM THAT IT HAD DEVELOPED ITS MICHIGAN GYROS
INDEPENDENTLY, THE COURT TESTED THIS CONTENTION BY CONSIDERING "WHETHER
WHAT IS BEING BUILT BY LEAR (IN MICHIGAN) SPRINGS ENTIRELY" FROM THE
PRIOR ART. 67 CAL.2D,AT 913, 435 P.2D,AT 340.  APPLYING THIS TEST, IT
FOUND THAT LEAR HAD IN FACT "UTILIZED THE APPARATUS PATENTED BY ADKINS
THROUGHOUT THE PERIOD IN QUESTION," 67 CAL.2D,AT 915, 435 P.2D,AT 341,
AND REINSTATED THE JURY'S $888,000 VERDICT ON THIS BRANCH OF THE CASE. 

        II. 

SINCE THE CALIFORNIA SUPREME COURT'S CONSTRUCTION OF THE 1955
LICENSING AGREEMENT IS SOLELY A MATTER OF STATE LAW, THE ONLY ISSUE
OPEN TO US IS RAISED BY THE COURT'S RELIANCE UPON THE DOCTRINE OF
ESTOPPEL TO BAR LEAR FROM PROVING THAT ADKINS' IDEAS WERE DEDICATED TO
THE COMMON WELFARE BY FEDERAL LAW.  /10/  IN CONSIDERING THE PROPRIETY
OF THE STATE COURT'S DECISION, WE ARE WELL AWARE THAT WE ARE NOT
WRITING UPON A CLEAN SLATE.  THE DOCTRINE OF ESTOPPEL HAS BEEN
CONSIDERED BY THIS COURT IN A LINE OF CASES REACHING BACK INTO THE
MIDDLE OF THE 19TH CENTURY.  BEFORE DECIDING WHAT THE ROLE OF ESTOPPEL
SHOULD BE IN THE PRESENT CASE AND IN THE FUTURE, IT IS, THEN, DESIRABLE
TO CONSIDER THE ROLE IT HAS PLAYED IN THE PAST. 

        A. 

WHILE THE ROOTS OF THE DOCTRINE HAVE OFTEN BEEN CELEBRATED IN
TRADITION, WE HAVE FOUND ONLY ONE 19TH CENTURY CASE IN THIS COURT THAT
INVOKED ESTOPPEL IN A CONSIDERED MANNER.  AND THAT CASE WAS DECIDED
BEFORE THE SHERMAN ACT MADE IT CLEAR THAT THE GRANT OF MONOPOLY POWER
TO A PATENT OWNER CONSTITUTED A LIMITED EXCEPTION TO THE GENERAL
FEDERAL POLICY FAVORING FREE COMPETITION.  KINSMAN V. PARKHURST, 18
HOW.  289 (1856).  /11/  CURIOUSLY, A SECOND DECISION OFTEN CITED AS
SUPPORTING THE ESTOPPEL DOCTRINE POINTS CLEARLY IN THE OPPOSITE
DIRECTION.  ST. PAUL PLOW WORKS V. STARLING, 140 U.S. 184 (1891), DID
NOT EVEN QUESTION THE RIGHT OF THE LOWER COURTS TO ADMIT THE LICENSEE'S
EVIDENCE SHOWING THAT THE PATENTED DEVICE WAS NOT NOVEL.  A UNANIMOUS
COURT MERELY HELD THAT, WHERE THERE WAS CONFLICTING EVIDENCE AS TO AN
INVENTION'S NOVELTY, IT WOULD NOT REVERSE THE DECISION OF THE LOWER
COURT UPHOLDING THE PATENT'S VALIDITY.     IN THE VERY NEXT YEAR, THIS
COURT FOUND THE DOCTRINE OF PATENT ESTOPPEL SO INEQUITABLE THAT IT
REFUSED TO GRANT AN INJUNCTION TO ENFORCE A LICENSEE'S PROMISE NEVER TO
CONTEST THE VALIDITY OF THE UNDERLYING PATENT.  "IT IS AS IMPORTANT TO
THE PUBLIC THAT COMPETITION SHOULD NOT BE REPRESSED BY WORTHLESS
PATENTS, AS THAT THE PATENTEE OF A REALLY VALUABLE INVENTION SHOULD BE
PROTECTED IN HIS MONOPOLY.  . . . "  POPE MANUFACTURING CO. V.
GORMULLY, 144 U.S. 224, 234 (1892). 

ALTHOUGH THIS COURT INVOKED AN ESTOPPEL IN 1905 WITHOUT CITING OR
CONSIDERING POPE'S POWERFUL ARGUMENT, UNITED STATES V. HARVEY STEEL
CO., 196 U.S. 310, THE DOCTRINE WAS NOT TO BE APPLIED AGAIN IN THIS
COURT UNTIL IT WAS REVIVED IN AUTOMATIC RADIO MANUFACTURING CO. V.
HAZELTINE RESEARCH, INC., SUPRA, WHICH DECLARED, WITHOUT PROLONGED
ANALYSIS, THAT LICENSEE ESTOPPEL WAS "THE GENERAL RULE."  339 U.S.,AT
836.  IN SO HOLDING, THE MAJORITY IGNORED THE TEACHINGS OF A SERIES OF
DECISIONS THIS COURT HAD RENDERED DURING THE 45 YEARS SINCE HAVEY HAD
BEEN DECIDED.  DURING THIS PERIOD, EACH TIME A PATENTEE SOUGHT TO RELY
UPON HIS ESTOPPEL PRIVILEGE BEFORE THIS COURT, THE MAJORITY CREATED A
NEW EXCEPTION TO PERMIT JUDICIAL SCRUTINY INTO THE VALIDITY OF THE
PATENT OFFICE'S GRANT.  LONG BEFORE HAZELTINE WAS DECIDED, THE ESTOPPEL
DOCTRINE HAD BEEN SO ERODED THAT IT COULD NO LONGER BE CONSIDERED THE
"GENERAL RULE," BUT WAS ONLY TO BE INVOKED IN AN EVER-NARROWING SET OF
CIRCUMSTANCES. 

        B. 

THE ESTOPPEL RULE WAS FIRST STRINGENTLY LIMITED IN A SITUATION IN
WHICH THE PATENTEE'S EQUITIES WERE FAR MORE COMPELLING THAN THOSE
PRESENTED IN THE TYPICAL LICENSING ARRANGEMENT.  WESTINGHOUSE ELECTRIC
& MANUFACTURING CO. V. FORMICA INSULATION CO., 266 U.S. 342 (1924),
FRAMED A RULE TO GOVERN THE RECURRING PROBLEM WHICH ARISES WHEN THE
ORIGINAL PATENT OWNER, AFTER ASSIGNING HIS PATENT TO ANOTHER FOR A
SUBSTANTIAL SUM, CLAIMS THAT THE PATENT IS WORTHLESS BECAUSE IT
CONTAINS NO NEW IDEAS.  THE COURTS OF APPEALS HAD TRADITIONALLY REFUSED
TO PERMIT SUCH A DEFENSE TO AN INFRINGEMENT ACTION ON THE GROUND THAT
IT WAS IMPROPER BOTH TO "SELL AND KEEP THE SAME THING," FAULKS V. KAMP,
3 F. 898, 902 (1880).  NEVERTHELESS, FORMICA IMPOSED A LIMITATION UPON
ESTOPPEL WHICH WAS RADICALLY INCONSISTENT WITH THE PREMISES UPON WHICH
THE "GENERAL RULE"  IS BASED.  THE COURT HELD THAT WHILE AN ASSIGNOR
MAY NOT DIRECTLY ATTACK THE VALIDITY OF A PATENT BY REFERENCE TO THE
PRIOR STATE OF THE ART, HE COULD INTRODUCE SUCH EVIDENCE TO NARROW THE
CLAIMS MADE IN THE PATENT.  "THE DISTINCTION MAY BE A NICE ONE BUT
SEEMS TO BE WORKABLE."  266 U.S.,AT 351.  WORKABLE OR NOT, THE RESULT
PROVED TO BE AN ANOMALY:  IF A PATENT HAD SOME NOVELTY FORMICA
PERMITTED THE OLD OWNER TO DEFEND AN INFRINGEMENT ACTION BY SHOWING
THAT THE INVENTION'S NOVEL ASPECTS DID NOT EXTEND TO THE INCLUSION OF
THE OLD OWNER'S PRODUCTS; ON THE OTHER HAND, IF A PATENT HAD NO NOVELTY
AT ALL, THE OLD OWNER COULD NOT DEFEND SUCCESSFULLY SINCE HE WOULD BE
OBLIGED TO LAUNCH THE DIRECT ATTACK ON THE PATENT THAT FORMICA SEEMED
TO FORBID.  THE INCONGRUITY OF THIS POSITION COMPELLED AT LEAST ONE
COURT OF APPEALS TO CARRY THE REASONING OF THE FORMICA EXCEPTION TO ITS
LOGICAL CONCLUSION.  IN 1940 THE SEVENTH CIRCUIT HELD THAT A LICENSEE
COULD INTRODUCE EVIDENCE OF THE PRIOR ART TO SHOW THAT THE LICENSOR'S
CLAIMS WERE NOT NOVEL AT ALL AND THUS SUCCESSFULLY DEFEND AN ACTION FOR
ROYALTIES.  CASCO PRODUCTS CORP. V. SINKO TOOL & MANUFACTURING CO., 116
F.2D 119. 

IN SCOTT PAPER CO. V. MARCALUS MANUFACTURING CO., 326 U.S. 249
(1945), THIS COURT ADOPTED A POSITION SIMILAR TO THE SEVENTH CIRCUIT'S,
UNDERMINING THE BASIS OF PATENT ESTOPPEL EVEN MORE THAN FORMICA HAD
DONE.  IN SCOTT, THE ORIGINAL PATENT OWNER HAD ATTEMPTED TO DEFEND AN
INFRINGEMENT SUIT BROUGHT BY HIS ASSIGNEE BY PROVING THAT HIS PRODUCT
WAS A COPY OF AN EXPIRED PATENT.  THE COURT REFUSED TO PERMIT THE
ASSIGNEE TO INVOKE AN ESTOPPEL, FINDING THAT THE POLICY OF THE PATENT
LAWS WOULD BE FRUSTRATED IF A MANUFACTURER WAS REQUIRED TO PAY FOR THE
USE OF INFORMATION WHICH, UNDER THE PATENT STATUTES, WAS THE PROPERTY
OF ALL.  CHIEF JUSTICE STONE, FOR THE COURT, DID NOT GO BEYOND THE
PRECISE QUESTION PRESENTED BY A MANUFACTURER WHO ASSERTED THAT HE WAS
SIMPLY COPYING AN EXPIRED PATENT.  NEVERTHELESS IT WAS IMPOSSIBLE TO
LIMIT THE SCOTT DOCTRINE TO SUCH A NARROW COMPASS.  IF PATENT POLICY
FORBIDS ESTOPPEL WHEN THE OLD OWNER ATTEMPTS TO SHOW THAT HE DID NO
MORE THAN COPY AN EXPIRED PATENT, WHY SHOULD NOT THE OLD OWNER ALSO BE
PERMITTED TO SHOW THAT THE INVENTION LACKED NOVELTY BECAUSE IT COULD BE
FOUND IN A TECHNICAL JOURNAL OR BECAUSE IT WAS OBVIOUS TO ONE
KNOWLEDGEABLE IN THE ART?  AS JUSTICE FRANKFURTER'S DISSENT INDICATED,
ID., AT 258-264, THERE WERE NO SATISFACTORY ANSWERS TO THESE
QUESTIONS.  THE SCOTT EXCEPTION HAD UNDERMINED THE VERY BASIS OF THE
"GENERAL RULE." 

        C. 

AT ABOUT THE TIME SCOTT WAS DECIDED, THIS COURT DEVELOPED YET
ANOTHER DOCTRINE WHICH WAS PROFOUNDLY ANTITHETIC TO THE PRINCIPLES
UNDERLYING ESTOPPEL.  IN SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO.,
317 U.S. 173 (1942), THE MAJORITY REFUSED TO PERMIT A LICENSOR TO
ENFORCE THE LICENSE'S PRICE-FIXING PROVISIONS WITHOUT PERMITTING THE
LICENSEE TO CONTEST THE VALIDITY OF THE UNDERLYING PATENT.  SINCE THE
PRICE-FIXING CLAUSE WAS PER SE ILLEGAL BUT FOR THE EXISTENCE OF A VALID
PATENT, THIS NARROW EXCEPTION COULD BE COUNTENANCED WITHOUT
COMPROMISING THE GENERAL ESTOPPEL PRINCIPLE.  BUT THE SOLA COURT WENT
FURTHER:  IT HELD THAT SINCE THE PATENTEE HAD SOUGHT TO ENFORCE THE
PRICE-FIXING CLAUSE, THE LICENSEE COULD ALSO AVOID PAYING ROYALTIES IF
HE COULD SHOW THAT THE PATENT WAS INVALID.  FIVE YEARS LATER, THE "ANTI
TRUST EXCEPTION" WAS GIVEN AN EVEN MORE EXTENSIVE SCOPE IN THE
KATZINGER AND MACGREGOR CASES.  /12/  HERE, LICENSORS WERE NOT
PERMITTED TO INVOKE AN ESTOPPEL DESPITE THE FACT THAT THEY SOUGHT ONLY
TO COLLECT THEIR ROYALTIES.  THE MERE EXISTENCE OF A PRICE-FIXING
CLAUSE IN THE LICENSE WAS HELD TO BE ENOUGH TO BRING THE VALIDITY OF
THE PATENT INTO QUESTION.  THUS IN THE LARGE NUMBER OF CASES IN WHICH
LICENSING AGREEMENTS CONTAINED RESTRICTIONS THAT WERE ARGUABLY ILLEGAL
UNDER THE ANTITRUST LAWS, THE DOCTRINE OF ESTOPPEL WAS A DEAD LETTER. 
JUSTICE FRANKFURTER, IN DISSENT, WENT EVEN FURTHER, CONCLUDING THAT
KATZINGER AND MACGREGOR HAD DONE ALL BUT REPUDIATE THE ESTOPPEL RULE:
"IF A DOCTRINE THAT WAS VITAL LAW FOR MORE THAN NINETY YEARS WILL BE
FOUND TO HAVE NOW BEEN DEPRIVED OF LIFE, WE OUGHT AT LEAST TO GIVE IT
DECENT PUBLIC BURIAL."  329 U.S.,AT 416. 

        D. 

THE LOWER COURTS, BOTH STATE AND FEDERAL, HAVE ALSO HEDGED THE
IMPACT OF ESTOPPEL BY CREATING EXCEPTIONS WHICH HAVE INDICATED A
RECOGNITION OF THE BROADER POLICIES POINTING TO A CONTRARY APPROACH. 
IT IS GENERALLY THE RULE THAT LICENSEES MAY AVOID FURTHER ROYALTY
PAYMENTS, REGARDLESS OF THE PROVISIONS OF THEIR CONTRACT, ONCE A THIRD
PARTY PROVES THAT THE PATENT IS INVALID.  SEE, E.G., DRACKETT CHEMICAL
CO. V. CHAMBERLAIN CO., 63 F.2D 853 (1933).  SOME COURTS HAVE GONE
FURTHER TO HOLD THAT A LICENSEE MAY NOTIFY THE PATENT OWNER THAT HE IS
REPUDIATING HIS AGREEMENT, REGARDLESS OF ITS TERMS, AND MAY
SUBSEQUENTLY DEFEND ANY ACTION FOR ROYALTIES BY PROVING PATENT
INVALIDITY.  NOTE, THE DOCTRINE OF LICENSEE REPUDIATION IN PATENT LAW,
63 YALE L.J. 125 (1953); R. ELLIS, PATENT LICENSES SEC. 328 (3D ED., A.
DELLER 1958).  AND EVEN IN THE 19TH CENTURY, STATE COURTS HAD HELD THAT
IF THE LICENSEE HAD NOT ACTUALLY SOLD PRODUCTS INCORPORATING THE
PATENT'S IDEAS, HE COULD CHALLENGE THE VALIDITY OF THE PATENT.  SEE
FORKOSCH, LICENSEE ESTOPPEL IN PATENT LAW, 20 TEMP.L.Q. 515, 529, N. 45
(1947).  /13/

        III. 

THE UNCERTAIN STATUS OF LICENSEE ESTOPPEL IN THE CASE LAW IS A
PRODUCE OF JUDICIAL EFFORTS TO ACCOMMODATE THE COMPETING DEMANDS OF THE
COMMON LAW OF CONTRACTS AND THE FEDERAL LAW OF PATENTS.  ON THE ONE
HAND, THE LAW OF CONTRACTS FORBIDS A PURCHASER TO REPUDIATE HIS
PROMISES SIMPLY BECAUSE HE LATER BECOMES DISSATISFIED WITH THE BARGAIN
HE HAS MADE.  /14/  ON THE OTHER HAND, FEDERAL LAW REQUIRES THAT ALL
IDEAS IN GENERAL CIRCULATION BE DEDICATED TO THE COMMON GOOD UNLESS
THEY ARE PROTECTED BY A VALID PATENT.  SEARS, ROEBUCK V. STIFFEL CO.,
SUPRA; COMPCO CORP. V. DAY-BRITE LIGHTING, INC., SUPRA.  WHEN FACED
WITH THIS BASIC CONFLICT IN POLICY, BOTH THIS COURT AND COURTS
THROUGHOUT THE LAND HAVE NATURALLY SOUGHT TO DEVELOP AN INTERMEDIATE
POSITION WHICH SOMEHOW WOULD REMAIN RESPONSIVE TO THE RADICALLY
DIFFERENT CONCERNS OF THE TWO DIFFERENT WORLDS OF CONTRACT AND PATENT. 
THE RESULT HAS BEEN A FAILURE.  RATHER THAN CREATIVE COMPROMISE, THERE
HAS BEEN A CHAOS OF CONFLICTING CASE LAW, PROCEEDING ON INCONSISTENT
PREMISES.  BEFORE RENEWING THE SEARCH FOR AN ACCEPTABLE MIDDLE GROUND,
WE MUST RECONSIDER ON THEIR OWN MERITS THE ARGUMENTS WHICH MAY PROPERLY
BE ADVANCED ON BOTH SIDES OF THE ESTOPPEL QUESTION. 

        A. 

IT WILL SIMPLIFY MATTERS GREATLY IF WE FIRST CONSIDER THE MOST
TYPICAL SITUATION IN WHICH PATENT LICENSES ARE NEGOTIATED.  IN CONTRAST
TO THE PRESENT CASE, MOST MANUFACTURERS OBTAIN A LICENSE AFTER A PATENT
HAS ISSUED.  SINCE THE PATENT OFFICE MAKES AN INVENTOR'S IDEAS PUBLIC
WHEN IT ISSUES ITS GRANT OF A LIMITED MONOPOLY, /15/  A POTENTIAL
LICENSEE HAS ACCESS TO THE INVENTOR'S IDEAS EVEN IF HE DOES NOT ENTER
INTO AN AGREEMENT WITH THE PATENT OWNER.  CONSEQUENTLY, A MANUFACTURER
GAINS ONLY TWO BENEFITS IF HE CHOOSES TO ENTER A LICENSING AGREEMENT
AFTER THE PATENT HAS ISSUED.  FIRST, BY ACCEPTING A LICENSE AND PAYING
ROYALTIES FOR A TIME, THE LICENSEE MAY HAVE AVOIDED THE NECESSITY OF
DEFENDING AN EXPENSIVE INFRINGEMENT ACTION DURING THE PERIOD WHEN HE
MAY BE LEAST ABLE TO AFFORD ONE.  SECOND, THE EXISTENCE OF AN
UNCHALLENGED PATENT MAY DETER OTHERS FROM ATTEMPTING TO COMPETE WITH
THE LICENSEE.  /16/ 

UNDER ORDINARY CONTRACT PRINCIPLES THE MERE FACT THAT SOME BENEFIT
IS RECEIVED IS ENOUGH TO REQUIRE THE ENFORCEMENT OF THE CONTRACT,
REGARDLESS OF THE VALIDITY OF THE UNDERLYING PATENT.  NEVERTHELESS, IF
ONE TESTS THIS RESULT BY THE STANDARD OF GOOD-FAITH COMMERCIAL DEALING,
IT SEEMS FAR FROM SATISFACTORY.  FOR THE SIMPLE CONTRACT APPROACH
ENTIRELY IGNORES THE POSITION OF THE LICENSOR WHO IS SEEKING TO INVOKE
THE COURT'S ASSISTANCE ON HIS BEHALF.  CONSIDER, FOR EXAMPLE, THE
EQUITIES OF THE LICENSOR WHO HAS OBTAINED HIS PATENT THROUGH A FRAUD ON
THE PATENT OFFICE.  IT IS DIFFICULT TO PERCEIVE WHY GOOD FAITH REQUIRES
THAT COURTS SHOULD PERMIT HIM TO RECOVER ROYALTIES DESPITE HIS
LICENSEE'S ATTEMPTS TO SHOW THAT THE PATENT IS INVALID.  COMPARE WALKER
PROCESS EQUIPMENT, INC. V. FOOD MACHINERY & CHEMICAL CORP., 382 U.S.
172 (1965). 

EVEN IN THE MORE TYPICAL CASES, NOT INVOLVING CONSCIOUS WRONGDOING,
THE LICENSOR'S EQUITIES ARE FAR FROM COMPELLING.  A PATENT, IN THE LAST
ANALYSIS, SIMPLY REPRESENTS A LEGAL CONCLUSION REACHED BY THE PATENT
OFFICE.  MOREOVER, THE LEGAL CONCLUSION IS PREDICATED ON FACTORS AS TO
WHICH REASONABLE MEN CAN DIFFER WIDELY.  YET THE PATENT OFFICE IS OFTEN
OBLIGED TO REACH ITS DECISION IN AN EX PARTE PROCEEDING, WITHOUT THE
AID OF THE ARGUMENTS WHICH COULD BE ADVANCED BY PARTIES INTERESTED IN
PROVING PATENT INVALIDITY.  CONSEQUENTLY, IT DOES NOT SEEM TO US TO BE
UNFAIR TO REQUIRE A PATENTEE TO DEFEND THE PATENT OFFICE'S JUDGMENT
WHEN HIS LICENSEE PLACES THE QUESTION IN ISSUE ESPECIALLY SINCE THE
LICENSOR'S CASE IS BUTTRESSED BY THE PRESUMPTION OF VALIDITY WHICH
ATTACHES TO HIS PATENT.  THUS, ALTHOUGH LICENSEE ESTOPPEL MAY BE
CONSISTENT WITH THE LETTER OF CONTRACTUAL DOCTRINE, WE CANNOT SAY THAT
IT IS COMPELLED BY THE SPIRIT OF CONTRACT LAW, WHICH SEEKS TO BALANCE
THE CLAIMS OF PROMISOR AND PROMISEE IN ACCORD WITH THE REQUIREMENTS OF
GOOD FAITH. 

SURELY THE EQUITIES OF THE LICENSOR DO NOT WEIGH VERY HEAVILY WHEN
THEY ARE BALANCED AGAINST THE IMPORTANT PUBLIC INTEREST IN PERMITTING
FULL AND FREE COMPETITION IN THE USE OF IDEAS WHICH ARE IN REALITY A
PART OF THE PUBLIC DOMAIN.  LICENSEES MAY OFTEN BE THE ONLY INDIVIDUALS
WITH ENOUGH ECONOMIC INCENTIVE TO CHALLENGE THE PATENTABILITY OF AN
INVENTOR'S DISCOVERY.  IF THEY ARE MUZZLED, THE PUBLIC MAY CONTINUALLY
BE REQUIRED TO PAY TRIBUTE TO WOULD-BE MONOPOLISTS WITHOUT NEED OR
JUSTIFICATION.  WE THINK IT PLAIN THAT THE TECHNICAL REQUIREMENTS OF
CONTRACT DOCTRINE MUST GIVE WAY BEFORE THE DEMANDS OF THE PUBLIC
INTEREST IN THE TYPICAL SITUATION INVOLVING THE NEGOTIATION OF A
LICENSE AFTER A PATENT HAS ISSUED. 

WE ARE SATISFIED THAT AUTOMATIC RADIO MANUFACTURING CO. V. HAZELTINE
RESEARCH, INC., SUPRA, ITSELF THE PRODUCT OF A CLOUDED HISTORY, SHOULD
NO LONGER BE REGARDED AS SOUND LAW WITH RESPECT TO ITS "ESTOPPEL"
HOLDING, AND THAT HOLDING IS NOW OVERRULED. 

B. 

THE CASE BEFORE US, HOWEVER, PRESENTS A FAR MORE COMPLICATED
ESTOPPEL PROBLEM THAN THE ONE WHICH ARISES IN THE MOST COMMON LICENSING
CONTEXT.  THE PROBLEM ARISES OUT OF THE FACT THAT LEAR OBTAINED ITS
LICENSE IN 1955, MORE THAN FOUR YEARS BEFORE ADKINS RECEIVED HIS 1960
PATENT.  INDEED, FROM THE VERY OUTSET OF THE RELATIONSHIP, LEAR
OBTAINED SPECIAL ACCESS TO ADKINS' IDEAS IN RETURN FOR ITS PROMISE TO
PAY SATISFACTORY COMPENSATION. 

THUS, DURING THE LENGTHY PERIOD IN WHICH ADKINS WAS ATTEMPTING TO
OBTAIN A PATENT, LEAR GAINED AN IMPORTANT BENEFIT NOT GENERALLY
OBTAINED BY THE TYPICAL LICENSEE.  FOR UNTIL A PATENT ISSUES, A
POTENTIAL LICENSEE MAY NOT LEARN HIS LICENSOR'S IDEAS SIMPLY BY
REQUESTING THE INFORMATION FROM THE PATENT OFFICE.  DURING THE TIME THE
INVENTOR IS SEEKING PATENT PROTECTION, THE GOVERNING FEDERAL STATUTE
REQUIRES THE PATENT OFFICE TO HOLD AN INVENTOR'S PATENT APPLICATION IN
CONFIDENCE.  /17/  IF A POTENTIAL LICENSEE HOPES TO USE THE IDEAS
CONTAINED IN A SECRET PATENT APPLICATION, HE MUST DEAL WITH THE
INVENTOR HIMSELF, UNLESS THE INVENTOR CHOOSES TO PUBLICIZE HIS IDEAS TO
THE WORLD AT LARGE.  BY PROMISING TO PAY ADKINS ROYALTIES FROM THE VERY
OUTSET OF THEIR RELATIONSHIP, LEAR GAINED IMMEDIATE ACCESS TO IDEAS
WHICH IT MAY WELL NOT HAVE LEARNED UNTIL THE PATENT OFFICE PUBLISHED
THE DETAILS OF ADKINS' INVENTION IN 1960.  AT THE CORE OF THIS CASE,
THEN, IS THE DIFFICULT QUESTION WHETHER FEDERAL PATENT POLICY BARS A
STATE FROM ENFORCING A CONTRACT REGULATING ACCESS TO AN UNPATENTED
SECRET IDEA.  /18/     ADKINS TAKES AN EXTREME POSITION ON THIS
QUESTION.  THE INVENTOR DOES NOT MERELY ARGUE THAT SINCE LEAR OBTAINED
PRIVILEGED ACCESS TO HIS IDEAS BEFORE 1960, THE COMPANY SHOULD BE
REQUIRED TO PAY ROYALTIES ACCRUING BEFORE 1960 REGARDLESS OF THE
VALIDITY OF THE PATENT WHICH ULTIMATELY ISSUED.  HE ALSO ARGUES THAT
SINCE LEAR OBTAINED SPECIAL BENEFITS BEFORE 1960, IT SHOULD ALSO PAY
ROYALTIES DURING THE ENTIRE PATENT PERIOD (1960-1977), WITHOUT REGARD
TO THE VALIDITY OF THE PATENT OFFICE'S GRANT.  WE CANNOT ACCEPT SO
BROAD AN ARGUMENT. 

ADKINS' POSITION WOULD PERMIT INVENTORS TO NEGOTIATE ALL IMPORTANT
LICENSES DURING THE LENGTHY PERIOD WHILE THEIR APPLICATIONS WERE STILL
PENDING AT THE PATENT OFFICE, THEREBY DISABLING ENTIRELY ALL THOSE WHO
HAVE THE STRONGEST INCENTIVE TO SHOW THAT A PATENT IS WORTHLESS.  WHILE
THE EQUITIES SUPPORTING ADKINS' POSITION ARE SOMEWHAT MORE APPEALING
THAN THOSE SUPPORTING THE TYPICAL LICENSOR, WE CANNOT SAY THAT THERE IS
ENOUGH OF A DIFFERENCE TO JUSTIFY SUCH A SUBSTANTIAL IMPAIRMENT OF
OVERRIDING FEDERAL POLICY. 

NOR CAN WE ACCEPT A SECOND ARGUMENT WHICH MAY BE ADVANCED TO SUPPORT
ADKINS' CLAIM TO AT LEAST A PORTION OF HIS POST-PATENT ROYALTIES,
REGARDLESS OF THE VALIDITY OF THE PATENT OFFICE GRANT.  THE TERMS OF
THE 1955 AGREEMENT PROVIDE THAT ROYALTIES ARE TO BE PAID UNTIL SUCH
TIME AS THE "PATENT . . . IS HELD INVALID," SEC. 6, AND THE FACT
REMAINS THAT THE QUESTION OF PATENT VALIDITY HAS NOT BEEN FINALLY
DETERMINED IN THIS CASE.  THUS, IT MAY BE SUGGESTED THAT ALTHOUGH LEAR
MUST BE ALLOWED TO RAISE THE QUESTION OF PATENT VALIDITY IN THE PRESENT
LAWSUIT, IT MUST ALSO BE REQUIRED TO COMPLY WITH ITS CONTRACT AND
CONTINUE TO PAY ROYALTIES UNTIL ITS CLAIM IS FINALLY VINDICATED IN THE
COURTS. 

THE PARTIES' CONTRACT, HOWEVER, IS NO MORE CONTROLLING ON THIS ISSUE
THAN IS THE STATE'S DOCTRINE OF ESTOPPEL, WHICH IS ALSO ROOTED IN
CONTRACT PRINCIPLES.  THE DECISIVE QUESTION IS WHETHER OVERRIDING
FEDERAL POLICIES WOULD BE SIGNIFICANTLY FRUSTRATED IF LICENSEES COULD
BE REQUIRED TO CONTINUE TO PAY ROYALTIES DURING THE TIME THEY ARE
CHALLENGING PATENT VALIDITY IN THE COURTS. 

IT SEEMS TO US THAT SUCH A REQUIREMENT WOULD BE INCONSISTENT WITH
THE AIMS OF FEDERAL PATENT POLICY.  ENFORCING THIS CONTRACTUAL
PROVISION WOULD GIVE THE LICENSOR AN ADDITIONAL ECONOMIC INCENTIVE TO
DEVISE EVERY CONCEIVABLE DILATORY TACTIC IN AN EFFORT TO POSTPONE THE
DAY OF FINAL JUDICIAL RECKONING.  WE CAN PERCEIVE NO REASON TO
ENCOURAGE DILATORY COURT TACTICS IN THIS WAY.  MOREOVER, THE COST OF
PROSECUTING SLOW-MOVING TRIAL PROCEEDINGS AND DEFENDING AN INEVITABLE
APPEAL MIGHT WELL DETER MANY LICENSEES FROM ATTEMPTING TO PROVE PATENT
INVALIDITY IN THE COURTS.  THE DETERRENT EFFECT WOULD BE PARTICULARLY
SEVERE IN THE MANY SCIENTIFIC FIELDS IN WHICH INVENTION IS PROCEEDING
AT A RAPID RATE.  IN THESE AREAS, A PATENT MAY WELL BECOME OBSOLETE
LONG BEFORE ITS 17-YEAR TERM HAS EXPIRED.  IF A LICENSEE HAS REASON TO
BELIEVE THAT HE WILL REPLACE A PATENTED IDEA WITH A NEW ONE IN THE NEAR
FUTURE, HE WILL HAVE LITTLE INCENTIVE TO INITIATE LENGTHY COURT
PROCEEDINGS, UNLESS HE IS FREED FROM LIABILITY AT LEAST FROM THE TIME
HE REFUSES TO PAY THE CONTRACTUAL ROYALTIES.  LASTLY, ENFORCING THIS
CONTRACTUAL PROVISION WOULD UNDERMINE THE STRONG FEDERAL POLICY
FAVORING THE FULL AND FREE USE OF IDEAS IN THE PUBLID DOMAIN.  FOR ALL
THESE REASONS, WE HOLD THAT LEAR MUST BE PERMITTED TO AVOID THE PAYMENT
OF ALL ROYALTIES ACCRUING AFTER ADKINS' 1960 PATENT ISSUED IF LEAR CAN
PROVE PATENT INVALIDITY.  /19/

        C. 

ADKINS' CLAIM TO CONTRACTUAL ROYALTIES ACCRUING BEFORE THE 1960
PATENT ISSUED IS, HOWEVER, A MUCH MORE DIFFICULT ONE, SINCE IT SQUARELY
RAISES THE QUESTION WHETHER, AND TO WHAT EXTENT, THE STATES MAY PROTECT
THE OWNERS OF UNPATENTED INVENTIONS WHO ARE WILLING TO DISCLOSE THEIR
IDEAS TO MANUFACTURERS ONLY UPON PAYMENT OF ROYALTIES.  THE CALIFORNIA
SUPREME COURT DID NOT ADDRESS ITSELF TO THIS ISSUE WITH PRECISION, FOR
IT BELIEVED THAT THE VENERABLE DOCTRINE OF ESTOPPEL PROVIDED A
SUFFICIENT ANSWER TO ALL OF LEAR'S CLAIMS BASED UPON FEDERAL PATENT
LAW.  THUS, WE DO NOT KNOW WHETHER THE SUPREME COURT WOULD HAVE AWARDED
ADKINS RECOVERY EVEN ON HIS PRE-PATENT ROYALTIES IF IT HAD RECOGNIZED
THAT PREVIOUSLY ESTABLISHED ESTOPPEL DOCTRINE COULD NO LONGER BE
PROPERLY INVOKED WITH REGARD TO ROYALTIES ACCRUING DURING THE 17-YEAR
PATENT PERIOD.  OUR DECISION TODAY WILL, OF COURSE, REQUIRE THE STATE
COURTS TO RECONSIDER THE THEORETICAL BASIS OF THEIR DECISIONS ENFORCING
THE CONTRACTUAL RIGHTS OF INVENTORS AND IT IS IMPOSSIBLE TO PREDICT THE
EXTENT TO WHICH THIS RE-EVALUATION MAY REVOLUTIONIZE THE LAW OF ANY
PARTICULAR STATE IN THIS REGARD.  CONSEQUENTLY WE HAVE CONCLUDED, AFTER
MUCH CONSIDERATION, THAT EVEN THOUGH AN IMPORTANT QUESTION OF FEDERAL
LAW UNDERLIES THIS PHASE OF THE CONTROVERSY,WE SHOULD NOT NOW ATTEMPT
TO DEFINE IN EVEN A LIMITED WAY THE EXTENT, IF ANY, TO WHICH THE STATES
MAY PROPERLY ACT TO ENFORCE THE CONTRACTUAL RIGHTS OF INVENTORS OF
UNPATENTED SECRET IDEAS.  GIVEN THE DIFFICULTY AND IMPORTANCE OF THIS
TASK, IT SHOULD BE UNDERTAKEN ONLY AFTER THE STATE COURTS HAVE, AFTER
FULLY FOCUSED INQUIRY, DETERMINED THE EXTENT TO WHICH THEY WILL RESPECT
THE CONTRACTUAL RIGHTS OF SUCH INVENTORS IN THE FUTURE.  INDEED, ON
REMAND, THE CALIFORNIA COURTS MAY WELL RECONCILE THE COMPETING DEMANDS
OF PATENT AND CONTRACT LAW IN A WAY WHICH WOULD NOT WARRANT FURTHER
REVIEW IN THIS COURT. 

     IV. 

WE ALSO FIND IT INAPPROPRIATE TO PASS AT THIS TIME UPON LEAR'S
CONTENTION THAT ADKINS' PATENT IS INVALID. 

NOT ONLY DID LEAR FAIL TO RAISE THIS ISSUE IN ITS PETITION FOR
CERTIORARI, BUT THE CALIFORNIA SUPREME COURT HAS YET TO PASS ON THE
QUESTION OF PATENT VALIDITY IN THAT CLEAR AND UNEQUIVOCAL MANNER WHICH
IS SO NECESSARY FOR PROPER ADJUDICATION IN THIS COURT.  AS WE HAVE
INDICATED, THE CALIFORNIA SUPREME COURT CONSIDERED THE NOVELTY OF
ADKINS' IDEAS RELEVANT TO ITS DECISION AT ONLY ONE STAGE OF ITS
EXTENSIVE ANALYSIS.  SINCE LEAR CLAIMED THAT IT HAD DEVELOPED ITS
MICHIGAN GYROS COMPLETELY INDEPENDELTY OF ADKINS' EFFORTS, THE SUPREME
COURT BELIEVED ITSELF OBLIGED TO CONSIDER WHETHER ADKINS' IDEAS WERE
NOT "ENTIRELY" ANTICIPATED BY THE PRIOR ART. 67 CAL.2D, AT 913, 435
P.2D, AT 340.  APPLYING THIS TEST, THE COURT UPHELD THE JURY'S VERDICT
OF $888,000 ON THE MICHIGAN GYROS, FINDING THAT "LEAR UTILIZED THE
APPARATUS PATENTED BY ADKINS THROUGHOUT THE PERIOD IN QUESTION."  67
CAL.2D, AT 915, 435 P.2D, AT 341.  IN REACHING THIS CONCLUSION,
HOWEVER, THE COURT DID EXPRESS ITS BELIEF THAT ADKINS' INVENTION MADE A
"SIGNIFICANT STEP FORWARD" IN THE ART OF GYROSCOPY.  67 CAL.2D, AT 915,
435 P.2D, AT 341. 

IT IS FAR FROM CLEAR THAT THE COURT, IN MAKING THIS LAST STATEMENT,
INTENDED TO HOLD THAT ADKINS' IDEAS SATISFIED THE DEMANDING STANDARD OF
INVENTION EXPLICATED IN OUR DECISION IN GRAHAM V. JOHN DEERE CO., 383
U.S. 1 (1966).  SURELY, SUCH A HOLDING WAS NOT REQUIRED BY THE COURT'S
ANALYSIS, WHICH WAS CONCERNED ONLY WITH THE QUESTION WHETHER LEAR HAD
BENEFITED FROM ADKINS' IDEAS IN ANY DEGREE.  IN THIS CONTEXT, WE
BELIEVE THAT LEAR MUST BE REQUIRED TO ADDRESS ITS ARGUMENTS ATTACKING
THE VALIDITY OF THE UNDERLYING PATENT TO THE CALIFORNIA COURTS IN THE
FIRST INSTANCE. 

THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA IS VACATED AND THE
CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  LEAR ARGUES THAT THIS ORIGINAL AGREEMENT WAS NOT SUBMITTED IN
EVIDENCE AT TRIAL AND SO SHOULD NOT BE CONSIDERED A PART OF THE RECORD
ON APPEAL.  THE CALIFORNIA SUPREME COURT, HOWEVER, TREATED THE
AGREEMENT AS AN IMPORTANT PART OF THE RECORD BEFORE IT, 67 CAL.2D, AT
906, 435 P.2D, AT 334; AND SO WE ARE FREE TO REFER TO IT. 

/2/  37 CFR 1.111 (1967). 

/3/  37 CFR 1.106 (1967). 

/4/  37 CFR 1.112 (1967). 

/5/  37 CFR 1.113 (1967). 

/6/  A. SEIDEL, WHAT THE GENERAL PRACTITIONER SHOULD KNOW ABOUT
PATENT LAW AND PRACTICE 61 (A.L.I. 1956). 

/7/  ADKINS ACTUALLY AMENDED HIS APPLICATION A THIRD TIME BEFORE HE
MADE THE AMENDMENT WHICH GAINED THE APPROVAL OF THE PATENT OFFICE. 
THIS THIRD AMENDMENT WAS SUPERSEDED BY THE SUCCESSFUL AMENDMENT,
HOWEVER, BEFORE THE PATENT OFFICE CONSIDERED IT. 

/8/  FOR PURPOSES OF THE PRESENT LAWSUIT, THE PARTIES STIPULATED
THAT THE JURY WOULD AWARD ONLY THOSE DAMAGES ACCRUING BEFORE MAY 31,
1963. 

/9/  ADKINS ALSO FILED A SECOND CAUSE OF ACTION WHICH CONTENDED THAT
LEAR HAD WRONGFULLY APPROPRIATED A VALUABLE TRADE SECRET AND SO WAS
LIABLE REGARDLESS OF THE VALIDITY OF THE INVENTOR'S CONTRACTUAL AND
QUASI-CONTRACTUAL THEORIES.  THE TRIAL COURT, HOWEVER, REQUIRED ADKINS
TO CHOOSE BETWEEN HIS CONTRACT AND TORT CLAIMS.  SINCE THE CALIFORNIA
SUPREME COURT COMPLETELY VINDICATED THE INVENTOR'S RIGHT TO CONTRACTUAL
ROYALTIES, IT WAS NOT OBLIGED TO CONSIDER THE PROPRIETY OF THIS ASPECT
OF THE TRIAL JUDGE'S DECISION.  CONSEQUENTLY, THE TORT CLAIM IS NOT
BEFORE US AT THIS TIME. 

/10/  ADKINS CLAIMS THAT WE HAVE NO JURISDICTION TO DECIDE THE
FEDERAL QUESTION PRESENTED BECAUSE THE COMPANY DID NOT ADEQUATELY
PRESERVE IT IN ITS ARGUMENT BEFORE THE STATE SUPREME COURT.  WE DO NOT
AGREE.  WHILE IT IS TRUE THAT LEAR DID NOT ASK THE SUPREME COURT TO
REPUDIATE ESTOPPEL ENTIRELY, IT DID SEEK TO PERSUADE THE COURT TO CARVE
OUT AN EXCEPTION TO THE ESTOPPEL PRINCIPLE WHICH WAS SO SWEEPING AS TO
UNDERMINE THE DOCTRINE'S VITALITY COMPLETELY.  THE COMPANY ARGUED, ON
THE BASIS OF FEDERAL AS WELL AS STATE CASES, THAT A LICENSEE MAY ESCAPE
THE IMPACT OF ESTOPPEL SIMPLY BY ANNOUNCING THAT IT HAS REPUDIATED THE
LICENSING AGREEMENT, REGARDLESS OF THE CONTRACT'S TERMS.  SEE, E.G.,
RESPONDENT'S AND CROSS-APPELLANT'S OPENING BRIEF IN CASES NOS. 28624
AND 30089, AT 110-111. 

THE CALIFORNIA SUPREME COURT REJECTED THIS ARGUMENT ON ITS MERITS: 

"LEAR RELIES ON AUTHORITIES HOLDING THAT A LICENSEE MAY TERMINATE A
LICENSE AGREEMENT UPON NOTICE TO HIS LICENSOR EVEN THOUGH, PRIOR TO
TERMINATION, THERE HAS BEEN NO ADJUDICATION OF INVALIDITY OF THE PATENT
WHICH IS THE SUBJECT OF THE AGREEMENT AND THAT THEREAFTER THE LICENSEE
MAY CHALLENGE THE VALIDITY OF THE PATENT.  (SEE, E.G., ARMSTRONG CO. V.
SHELL CO. OF CAL. (1929) 98 CAL.APP.  769, 778-779).  THIS RULE HAS NO
APPLICATION IF THE AGREEMENT SETS FORTH THE PARTICULAR CIRCUMSTANCES
UNDER WHICH TERMINATION MUST OCCUR.  AS STATED ABOVE, SUCH PROVISIONS
MUST BE COMPLIED WITH IN ORDER TO EFFECT A VALID CANCELLATION."  67
CAL.2D, AT 899-900 N. 15, 435 P.2D, AT 331, N. 15. 

WE CLEARLY HAVE JURISDICTION TO CONSIDER WHETHER THIS DECISION IS
WRONG.  IN DOING SO, WE HAVE THE DUTY TO CONSIDER THE BROADER
IMPLICATIONS OF LEAR'S CONTENTION, AND VINDICATE, IF APPROPRIATE, ITS
CLAIM TO RELIEF ON SOMEWHAT DIFFERENT GROUNDS THAN IT CHOSE TO ADVANCE
BELOW, ESPECIALLY WHEN THE CALIFORNIA COURT RECOGNIZED, IN LANGUAGE WE
HAVE ALREADY QUOTED, SUPRA, AT 656, THAT MATTERS OF BASIC PRINCIPLE ARE
AT STAKE. 

/11/  THERE ARE TWO OTHER EARLY CASES WHICH ENFORCED PATENT LICENSES
WITHOUT A THOROUGH CONSIDERATION OF THE ESTOPPEL ISSUES THAT WERE
PRESENTED.  IN EUREKA CO. V. BAILEY CO., 11 WALL.  488 (1871), THE
COURT HELD THAT A LICENSEE WAS OBLIGED TO OVERCOME A "VERY STRONG
PRESUMPTION" OF PATENT VALIDITY IN ORDER TO AVOID HIS ROYALTY
OBLIGATIONS, WITHOUT INDICATING HOW MUCH MORE COMPELLING A SHOWING WAS
REQUIRED THAN WAS CONSIDERED NECESSARY IN AN ORDINARY INFRINGEMENT
ACTION.  IN DALE TILE MANUFACTURING CO. V. HYATT, 125 U.S. 46 (1888),
THIS COURT AFFIRMED THE DECISION OF THE NEW YORK STATE COURTS INVOKING
THE DOCTRINE OF LICENSEE ESTOPPEL, ON THE GROUND THAT THE ESTOPPEL
QUESTION PRESENTED WAS ONE WHICH INVOLVED ONLY STATE LAW. 

/12/  EDWARD KATZINGER CO. V. CHICAGO METALLIC MANUFACTURING CO.,
329 U.S. 394 (1947); MACGREGOR V. WESTINGHOUSE ELECTRIC & MANUFACTURING
CO., 329 U.S. 402 (1947). 

/13/  IN ADDITION TO THE WORKS CITED IN THE TEXT, A DETAILED
EXPLICATION OF THE DEVELOPMENT OF ESTOPPEL DOCTRINE MAY BE FOUND IN
COOPER, ESTOPPEL TO CHALLENGE PATENT VALIDITY:  THE CASE OF PRIVATE
GOOD FAITH VS. PUBLIC POLICY, 18 W.RES.L.REV.  1122 (1967), AND IN
KRAMER, ESTOPPEL TO DENY VALIDITY-- A SLENDER REED, 23
N.Y.U.INTRA.L.REV.  237 (1968). 

/14/  SEE 1 A. CORBIN, CONTRACTS 127 (1963); TREECE, LICENSEE
ESTOPPEL IN PATENT AND TRADEMARK CASES, 53 IOWA L.REV.  525, 528-530
(1967). 

/15/  37 CFR 1.11, 1.13 (1967). 

/16/  OF COURSE, THE VALUE OF THIS SECOND BENEFIT MAY DEPEND UPON
WHETHER THE LICENSEE HAS OBTAINED EXCLUSIVE OR NONEXCLUSIVE RIGHTS TO
THE USE OF THE PATENT.  EVEN IN THE CASE OF NONEXCLUSIVE LICENSES,
HOWEVER, COMPETITION IS LIMITED TO THE EXTENT THAT THE ROYALTY CHARGED
BY THE PATENTEE SERVES AS A BARRIER TO ENTRY. 

/17/  35 U.S.C. 122 PROVIDES: 

"APPLICATIONS FOR PATENTS SHALL BE KEPT IN CONFIDENCE BY THE PATENT
OFFICE AND NO INFORMATION CONCERNING THE SAME GIVEN WITHOUT AUTHORITY
OF THE APPLICANT OR OWNER UNLESS NECESSARY TO CARRY OUT THE PROVISIONS
OF ANY ACT OF CONGRESS OR IN SUCH SPECIAL CIRCUMSTANCES AS MAY BE
DETERMINED BY THE COMMISSIONER." 

THE PRESENT REGULATIONS ISSUED BY THE PATENT OFFICE UNEQUIVOCALLY
GUARANTEE THAT:  "PENDING PATENT APPLICATIONS ARE PRESERVED IN SECRECY
. . . UNLESS IT SHALL BE NECESSARY TO THE PROPER CONDUCT OF BUSINESS
BEFORE THE OFFICE" TO DIVULGE THEIR CONTENTS.  37 CFR 1.14(A) (1967). 
THE PARTIES DO NOT CONTEND THAT ADKINS' PATENT APPLICATION WAS
PUBLICIZED BY THE OFFICE DURING THE PERIOD IT WAS UNDER CONSIDERATION. 
/18/  SEE DOERFER, THE LIMITS ON TRADE SECRET LAW IMPOSED BY FEDERAL
PATENT AND ANTITRUST SUPREMACY, 80 HARV.L.REV.  1432 (1967); NOTE, THE
STIFFEL DOCTRINE AND THE LAW OF TRADE SECRETS, 62 NW.U.L.REV.  956
(1968); ADELMAN, TRADE SECRETS AND FEDERAL PRE-EMPTION-- THE AFTERMATH
OF SEARS AND COMPCO, 49 J.PAT.OFF.SOC.  713 (1967); TREECE, PATENT
POLICY AND PREEMPTION:  THE STIFFEL AND COMPCO CASES, 32 U.CHI.L.REV. 
80 (1964). 

/19/ ADKINS SUGGESTS THAT ANY DECISION REPUDIATING LICENSEE ESTOPPEL
AS THE GENERAL RULE SHOULD NOT BE RETROACTIVELY APPLIED TO CONTRACTS
CONCLUDED BEFORE SUCH A DECISION IS ANNOUNCED.  GIVEN THE EXTENT TO
WHICH THE ESTOPPEL PRINCIPLE HAD BEEN ERODED BY OUR PRIOR DECISIONS, WE
BELIEVE IT CLEAR THAT THE PATENT OWNER-- EVEN BEFORE THIS DECISION--
COULD NOT CONFIDENTLY RELY UPON THE CONTINUING VITALITY OF THE
DOCTRINE.  NOR CAN WE PERCEIVE THAT OUR DECISION TODAY IS LIKELY TO
UNDERMINE ANY EXISTING LEGITIMATE BUSINESS RELATIONSHIPS.  MOREOVER,
THE PUBLIC'S INTEREST IN THE ELIMINATION OF SPECIOUS PATENTS WOULD BE
SIGNIFICANTLY PREJUDICED IF THE RETROACTIVE EFFECT OF TODAY'S DECISION
WERE LIMITED IN ANY WAY. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOINS, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN THE JUDGMENT AND OPINION OF THE COURT, EXCEPT FOR WHAT
IS SAID IN PART III, C, OF THE COURT'S OPINION.  WHAT THE COURT DOES IN
THIS PART OF ITS OPINION IS TO RESERVE FOR FUTURE DECISION THE QUESTION
WHETHER THE STATES HAVE POWER TO ENFORCE CONTRACTS UNDER WHICH SOMEONE
CLAIMING TO HAVE A NEW DISCOVERY CAN OBTAIN PAYMENT FOR DISCLOSING IT
WHILE HIS PATENT APPLICATION IS PENDING, EVEN THOUGH THE DISCOVERY IS
LATER HELD TO BE UNPATENTABLE.  THIS RESERVATION IS, AS I SEE IT,
DIRECTLY IN CONFLICT WITH WHAT THIS COURT HELD TO BE THE LAW IN SEARS,
ROEBUCK V. STIFFEL CO., 376 U.S. 225 (1964), AND COMPCO CORP. V. DAY
BRITE LIGHTING, INC., 376 U.S. 234 (1964).  BROTHER HARLAN CONCURRED IN
THE RESULT IN THOSE CASES, SAYING-- CONTRARY TO WHAT THE COURT HELD--
"I SEE NO REASON WHY THE STATE MAY NOT IMPOSE REASONABLE RESTRICTIONS
ON THE FUTURE 'COPYING'  ITSELF."  COMPCO, SUPRA, AT 239.  CONSEQUENTLY
THE COURT IS TODAY JOINING IN THE KIND OF QUALIFICATION THAT ONLY MR.
JUSTICE HARLAN WAS WILLING TO MAKE AT THE TIME OF OUR STIFFEL AND
COMPCO DECISIONS. 

I STILL ENTERTAIN THE BELIEF I EXPRESSED FOR THE COURT IN STIFFEL
AND COMPCO THAT NO STATE HAS A RIGHT TO AUTHORIZE ANY KIND OF MONOPOLY
ON WHAT IS CLAIMED TO BE A NEW INVENTION, EXCEPT WHEN A PATENT HAS BEEN
OBTAINED FROM THE PATENT OFFICE UNDER THE EXACTING STANDARDS OF THE
PATENT LAWS.  ONE WHO MAKES A DISCOVERY MAY, OF COURSE, KEEP IT SECRET
IF HE WISHES, BUT PRIVATE ARRANGEMENTS UNDER WHICH SELF-STYLED
"INVENTORS" DO NOT KEEP THEIR DISCOVERIES SECRET, BUT RATHER DISCLOSE
THEM, IN RETURN FOR CONTRACTUAL PAYMENTS, RUN COUNTER TO THE PLAN OF
OUR PATENT LAWS, WHICH TIGHTLY REGULATE THE KIND OF INVENTIONS THAT MAY
BE PROTECTED AND THE MANNER IN WHICH THEY MAY BE PROTECTED.  THE
NATIONAL POLICY EXPRESSED IN THE PATENT LAWS, FAVORING FREE COMPETITION
AND NARROWLY LIMITING MONOPOLY, CANNOT BE FRUSTRATED BY PRIVATE
AGREEMENTS AMONG INDIVIDUALS, WITH OR WITHOUT THE APPROVAL OF THE
STATE. 

MR. JUSTICE WHITE, CONCURRING IN PART. 

THE APPLICABLE PROVISION OF 28 U.S.C. 1257 EMPOWERS US TO REVIEW BY
WRIT OF CERTIORARI "(FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST
COURT OF A STATE . . . WHERE ANY TITLE, RIGHT, PRIVILEGE OR IMMUNITY IS
SPECIALLY SET UP OR CLAIMED UNDER THE CONSTITUTION, TREATIES OR
STATUTES OF, OR COMMISSION HELD OR AUTHORITY EXERCISED UNDER, THE
UNITED STATES."  ALTHOUGH ADKINS DISPUTES IT, WE HAVE JURISDICTION TO
CONSIDER WHETHER A PATENT LICENSEE IS ESTOPPED TO CHALLENGE THE
VALIDITY OF THE PATENT.  THE CALIFORNIA SUPREME COURT RULED THAT HE IS
AND THEREFORE WOULD NOT ENTERTAIN ATTACKS ON ADKINS' PATENT AS A
DEFENSE TO HIS SUIT FOR ROYALTIES.  LEAR SEEKS REVIEW OF THAT HOLDING
HERE.  IN MY VIEW, NOT ONLY IS THE ISSUE PROPERLY HERE BUT THE COURT
HAS CORRECTLY DECIDED IT. 

ALTHOUGH WE HAVE JURISDICTION TO REVIEW THIS STATE COURT JUDGMENT
AND TO DETERMINE THE LICENSEE ESTOPPEL ISSUE, IT DOES NOT NECESSARILY
FOLLOW THAT WE MAY OR SHOULD DEAL WITH TWO OTHER FEDERAL QUESTIONS
WHICH COME INTO FOCUS ONCE THE LICENSEE IS FREE TO CHALLENGE THE
PATENT.  THE FIRST IS WHETHER THE PATENT IS VALID.  THE SECOND, WHICH
ARISES ONLY IF THE PATENT IS INVALIDATED, IS WHETHER FEDERAL LAW
FORBIDS THE COLLECTION OF ROYALTIES WHICH MIGHT OTHERWISE BE
COLLECTIBLE UNDER A CONTRACT ROOTED IN STATE LAW.  ALTHOUGH THE COURT
DOES NOT DEAL WITH THE FIRST ISSUE, IT DOES PURPORT TO DECIDE THE
SECOND, AT LEAST IN PART.  HOWEVER, AS EITHER A JURISDICTIONAL OR A
POLICY MATTER, NEITHER OF THESE ISSUES IS PROPERLY BEFORE US IN THIS
CASE. 

IN THE FIRST PLACE, WE HAVE NO DECISION OF THE CALIFORNIA SUPREME
COURT AFFIRMING OR DENYING, AS A MATTER OF FEDERAL LAW, THAT ADKINS MAY
NOT ENFORCE HIS CONTRACT IF HIS PATENT IS HELD INVALID.  THE CALIFORNIA
COURT HELD THAT THE LICENSE AGREEMENT HAD NOT BEEN TERMINATED IN
ACCORDANCE WITH ITS TERMS, THAT THE DOCTRINE OF LICENSEE ESTOPPEL
PREVENTED LEAR FROM CHALLENGING THE PATENT AND THAT LEAR WAS UTILIZING
THE TEACHING OF ADKINS' PATENT.  THERE WAS THUS NO NECESSITY OR REASON
TO CONSIDER WHETHER THE PATENT WAS INVALID, OR, IF IT WAS, WHETHER
EITHER STATE OR FEDERAL LAW PREVENTED COLLECTION OF THE ROYALTIES
RESERVED BY THE CONTRACT.  EVEN IF THESE ISSUES HAD BEEN PRESENTED TO
THE CALIFORNIA SUPREME COURT, SOUND PRINCIPLES WOULD HAVE DICTATED THAT
THE COURT NOT RENDER A DECISION ON QUESTIONS UNNECESSARY TO ITS
DISPOSITION OF THE CASE.  SEE, E.G., SOUTHWESTERN BELL TELEPHONE CO. V.
OKLAHOMA, 303 U.S. 206, 212-213 (1938). 

THERE IS NO INDICATION, HOWEVER, THAT LEAR, DIRECTLY OR BY
INFERENCE, URGED IN THE CALIFORNIA COURTS THAT IF ADKINS' PATENT WERE
INVALID, FEDERAL LAW OVERRODE STATE CONTRACT LAW AND PRECLUDED
COLLECTION OF THE ROYALTIES WHICH LEAR HAD PROMISED TO PAY.  ONE OF THE
DEFENSES PRESENTED BY LEAR IN ITS ANSWER TO ADKINS' CLAIM FOR ROYALTIES
WAS THAT THERE HAD BEEN A FAILURE OF CONSIDERATION BECAUSE OF THE
ABSENCE OF BARGAINED-FOR PATENTABILITY IN ADKINS' IDEAS.  BUT FAILURE
OF CONSIDERATION IS A STATE LAW QUESTION, AND I FIND NOTHING IN THE
RECORD AND NOTHING IN THIS COURT'S OPINION INDICATING THAT LEAR AT ANY
TIME CONTENDED IN THE STATE COURTS THAT ONCE ADKINS' PATENT WAS
INVALIDATED, THE ROYALTY AGREEMENT WAS UNENFORCEABLE AS A MATTER OF
FEDERAL LAW.  /1/ 

GIVEN LEAR'S FAILURE BELOW TO "SPECIALLY SET UP OR CLAIM" THE
FEDERAL BAR TO COLLECTION OF ROYALTIES IN THE EVENT ADKINS' PATENT WAS
INVALIDATED, AND WITHOUT THE CALIFORNIA SUPREME COURT'S "FINAL
JUDGMENT" ON THIS ISSUE, I DOUBT OUR JURISDICTION TO DECIDE THE ISSUE. 
BUT EVEN IF JURISDICTION EXISTS, THE COURT SHOULD FOLLOW ITS
CHARACTERISTIC PRACTICE AND REFUSE TO ISSUE PRONOUNCEMENTS ON QUESTIONS
NOT URGED OR DECIDED IN THE STATE COURTS. 

IN MCGOLDRICK V. COMPAGNIE GENERALE TRANSATLANTIQUE, 309 U.S. 430
(1940), THE COURT, WHILE RECOGNIZING IT HAD JURISDICTION TO DETERMINE
WHETHER A NEW YORK TAX WAS AN UNCONSTITUTIONAL BURDEN ON INTERSTATE
COMMERCE, REFUSED TO CONSIDER WHETHER THE TAX WAS A PROHIBITED IMPOST
OR DUTY ON IMPORTS AND EXPORTS, SAYING:  "(IT IS ONLY IN EXCEPTIONAL
CASES, AND THEN ONLY IN CASES COMING FROM THE FEDERAL COURTS, THAT (THE
COURT) CONSIDERS QUESTIONS URGED BY A PETITIONER OR APPELLANT NOT
PRESSED OR PASSED UPON IN THE COURTS BELOW . . . . (DUE REGARD FOR THE
APPROPRIATE RELATIONSHIP OF THIS COURT TO STATE COURTS REQUIRES US TO
DECLINE TO CONSIDER AND DECIDE QUESTIONS AFFECTING THE VALIDITY OF
STATE STATUTES NOT URGED OR CONSIDERED THERE."  ID., AT 434. 

WILSON V. COOK, 327 U.S. 474 (1946), REACHED A SIMILAR CONCLUSION. 
THERE THE COURT DENIED A GOVERNMENT CONTRACTOR THE BENEFIT OF THE
IMPLIED CONSTITUTIONAL IMMUNITY OF THE FEDERAL GOVERNMENT FROM TAXATION
BY THE STATE, BUT AT THE SAME TIME DECLINED TO CONSIDER WHETHER THE
STATE TAX AT ISSUE PLACED A FORBIDDEN TAX DIRECTLY ON THE UNITED
STATES.  THIS WAS BECAUSE THE COURT WAS "NOT FREE TO CONSIDER" A GROUND
OF ATTACK "NOT PRESENTED TO THE SUPREME COURT OF ARKANSAS OR CONSIDERED
OR DECIDED BY IT," EVEN THOUGH THE ISSUE WAS IN SOME MEASURE RELATED TO
ONE ACTUALLY DECIDED BY THE STATE COURTS AND AROSE UNDER THE SAME
IMPLIED CONSTITUTIONAL IMMUNITY ARGUMENT.  ID., AT 483.  CF. DEWEY V.
DES MOINES, 173 U.S. 193, 197-198 (1899).  THE COURT RELIED ON
MCGOLDRICK AND A LONE LINE OF PRIOR CASES, INCLUDING NEW YORK EX REL.
COHN V. GRAVES, 300 U.S. 308, 317 (1937), WHERE THE COURT HAD SAID:
"IN REVIEWING THE JUDGMENT OF A STATE COURT, THIS COURT WILL NOT PASS
UPON ANY FEDERAL QUESTION NOT SHOWN BY THE RECORD TO HAVE BEEN RAISED
IN THE STATE COURT OR CONSIDERED THERE, WHETHER IT BE ONE ARISING UNDER
A DIFFERENT OR THE SAME CLAUSE IN THE CONSTITUTION WITH RESPECT TO
WHICH OTHER QUESTIONS ARE PROPERLY PRESENTED." 

THE RESULT IS THE SAME WHEN A PARTY HAS ATTEMPTED TO RAISE AN ISSUE
IN THE STATE COURT BUT HAS NOT DONE SO IN PROPER OR TIMELY FASHION. 
"QUESTIONS FIRST PRESENTED TO THE HIGHEST STATE COURT ON A PETITION FOR
REHEARING COME TOO LATE FOR CONSIDERATION HERE . . . ."  RADIO STATION
WOW V. JOHNSON, 326 U.S. 120, 128 (1945).  "SINCE THE STATE SUPREME
COURT DID NOT PASS ON THE QUESTION NOW URGED, AND SINCE IT DOES NOT
APPEAR TO HAVE BEEN PROPERLY PRESENTED TO THAT COURT FOR DECISION, WE
ARE WITHOUT JURISDICTION TO CONSIDER IT IN THE FIRST INSTANCE HERE." 
CIO V. MCADORY, 325 U.S. 472, 477 (1945).  AND NO DIFFERENT CONCLUSION
OBTAINS WHEN THE FEDERAL QUESTION, ALTHOUGH NOT YET PRESENTED TO OR
DECIDED BY THE STATE COURT, WILL PROBABLY OR EVEN CERTAINLY ARISE
DURING FURTHER PROCEEDINGS HELD IN THAT COURT.  SEE, E.G., NAACP V.
ALABAMA, 357 U.S. 449, 466-467 (1958); HUDSON DISTRIBUTORS, INC. V. ELI
LILLY & CO., 377 U.S. 386, 394-395 (1964). 

WHOLLY ASIDE FROM JURISDICTIONAL CONSIDERATIONS OR THOSE RELATING TO
OUR RELATIONSHIPS WITH STATE COURTS, THERE IS THE MATTER OF OUR OWN
RULE 23(1)(C), WHICH STATES THAT "(ONLY THE QUESTIONS SET FORTH IN THE
PETITION OR FAIRLY COMPRISED THEREIN WILL BE CONSIDERED BY THE COURT." 
SEE FLOURNOY V. WIENER, 321 U.S. 253, 259 (1944).  NONE OF THE
QUESTIONS PRESENTED BY LEAR'S PETITION FOR CERTIORARI COMES EVEN CLOSE
TO THE ISSUE TO WHICH THE COURT NOW ADDRESSES ITSELF-- AN ISSUE WHICH
WILL ARISE ONLY IF LEAR CAN AND DOES CHALLENGE THE PATENT, IF THE
PATENT IS DECLARED INVALID, IF ADKINS NEVERTHELESS SEEKS TO ENFORCE THE
AGREEMENT, AND IF LEAR INTERPOSES A DEFENSE BASED ON FEDERAL LAW. 

THIS SEEMS A POOR CASE FOR WAIVING OUR RULES.  IN THE FIRST PLACE,
THE QUESTION OF VALIDITY HAS NOT BEEN REACHED BY THE CALIFORNIA SUPREME
COURT, AND WHEN IT IS THE PATENT MAY WITHSTAND ATTACK.  IN THAT EVENT
THERE WILL BE NO NECESSITY TO CONSIDER THE IMPACT OF PATENT LAW ON THE
ENFORCEABILITY OF A CONTRACT GROUNDED IN STATE LAW.  SECOND, EVEN IF
THE PATENT IS DECLARED INVALID, THE STATE COURT, AFTER THE PARTIES HAVE
ADDRESSED THEMSELVES TO THE ISSUES, MAY ACCOMMODATE FEDERAL AND STATE
LAW IN A MATTER WHICH WOULD NOT PROMPT REVIEW HERE.  THIRD, THE PARTIES
THEMSELVES HAVE NEITHER BRIEFED NOR SERIOUSLY ARGUED THE QUESTION IN
THIS COURT, AND WE DO NOT HAVE THE BENEFIT OF THEIR VIEWS ON WHAT IS
SURELY A DIFFICULT QUESTION.  THE COURT ITSELF HAS FLUSHED THE ISSUE,
WHICH IT NOW DEALS WITH ON A PIECEMEAL BASIS.  /2/  LIKE THE QUESTION
OF PATENT VALIDITY, I WOULD LEAVE THE CONSEQUENCES OF INVALIDITY TO THE
STATE COURT IN THE FIRST INSTANCE. 

/1/  THE COURT BRUSHES ASIDE THE PROBLEM BY CHARACTERIZING THE
ADDITIONAL ISSUE IT DECIDES AS REPRESENTING A "MORE COMPLICATED
ESTOPPEL PROBLEM."  BUT LICENSEE ESTOPPEL, THE QUESTION RAISED HERE,
REFERS TO ESTOPPEL AGAINST THE LICENSEE TO CHALLENGE THE PATENT, NOR TO
ANY BAR OR "ESTOPPEL" INTERPOSED BY FEDERAL LAW AGAINST COLLECTING
ROYALTIES ON AN INVALIDATED PATENT.  WHETHER ADKINS CAN ENFORCE HIS
CONTRACT FOR ROYALTIES IF HIS PATENT IS FOUND TO BE INVALID CANNOT BE
SHOEHORNED INTO THE LICENSEE-ESTOPPEL QUESTION, AND BY NO STRETCH OF
THE IMAGINATION CAN IT BE INCLUDED WITHIN THE SCOPE OF THE QUESTION
RAISED AND LITIGATED BY THE PARTIES IN THIS CASE.  IN THE COURTS BELOW
LEAR WANTED TO CHALLENGE ADKINS' PATENT ONLY FOR THE PURPOSE OF SHOWING
THAT ADKINS WAS ENTITLED TO NO RECOVERY UNDER THE TERMS OF THE CONTRACT
ITSELF, EITHER BECAUSE OF A FAILURE OF CONSIDERATION OR BECAUSE THE
CONTRACT HAD BEEN LEGALLY TERMINATED OR COULD BE LEGALLY TERMINATED. 
INDEED, THE DISTRICT COURT OF APPEAL NOTED:  "LEAR CONCEDES THAT IT
WOULD BE ESTOPPED TO CONTEST THE VALIDITY OF ANY PATENT ISSUED TO
ADKINS ON THE CLAIMS OF HIS APPLICATION DESCRIBED IN THE LICENSE
AGREEMENT SO LONG AS IT CONTINUED TO OPERATE UNDER THAT AGREEMENT."  52
CAL.RPTR.  795, 805.  SEE ALSO LEAR'S OPENING BRIEF IN THE DISTRICT
COURT OF APPEAL 109. 

/2/  THE COURT'S OPINION FLATLY PROSCRIBES RECOVERY BY ADKINS OF
"ALL ROYALTIES ACCRUING AFTER ADKINS' 1960 PATENT ISSUED IF LEAR CAN
PROVE PATENT INVALIDITY."  ANTE, AT 674.  BUT RECOVERY OF PRE-1960
ROYALTIES IS LEFT OPEN BY THE COURT, APPARENTLY BECAUSE PRE-ISSUANCE
AND POST-ISSUANCE ROYALTIES DO NOT STAND ON THE SAME FOOTING UNDER
FEDERAL LAW.  SUCH A DISTINCTION MAY BE VALID, AND PRE-1960 ROYALTIES
RECOVERABLE; BUT IF SO, WHAT OF POST-1960 ROYALTIES WHICH ARE
ATTRIBUTABLE TO THE HEADSTART LEAR OBTAINED OVER THE REST OF THE
INDUSTRY AS A RESULT OF PRE-ISSUANCE DISCLOSURE OF ADKINS' IDEA? 
TODAY'S BAR TO COLLECTION OF POST-1960 ROYALTIES WOULD SEEM TO BE
INFLEXIBLE, AND YET THOSE ROYALTIES ARGUABLY ARE RECOVERABLE TO THE
EXTENT THEY REPRESENT PAYMENT FOR THE PRE-1960 DISCLOSURE OF ADKINS'
IDEA; TO THAT EXTENT, THEY SEEM INDISTINGUISHABLE FROM PRE-1960
ROYALTIES, AT LEAST FOR PURPOSES OF FEDERAL PATENT LAW.  CF. BRULOTTE
V. THYS CO., 379 U.S. 29, 31 (1964).  SEE ALSO ID., AT 34-39
(DISSENTING OPINION).  THIS POSSIBILITY AND OTHERS SERVE TO INDICATE
THE WISDOM OF REFRAINING FROM ANY PRONOUNCEMENT NOW, AND PARTICULARLY
FROM ANY RIGID LINE DRAWING, IN ADVANCE OF CONSIDERATION BY THE COURTS
BELOW AND BY THE PARTIES.     C. RUSSELL HALE ARGUED THE CAUSE FOR
PETITIONER.  WITH HIM ON THE BRIEFS WERE EDWIN L. HARTZ, THOMAS G.
CORCORAN, AND ALLEN E. THROOP. 

PETER R. COHEN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS ALLEN E. SUSMAN.     LAWRENCE G. WALLACE ARGUED THE CAUSE FOR
THE UNITED STATES AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
ZIMMERMAN, AND HOWARD E. SHAPIRO. 
..END :











NOYD V. BOND, 395 U.S. 683 


       NOYD V. BOND ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT. 

        NO. 830.  ARGUED APRIL 24, 1969.-- DECIDED JUNE 16, 1969. 


PETITIONER, AN AIR FORCE OFFICER AT CANNON AIR FORCE BASE, WAS FOUND
GUILTY BY A COURT-MARTIAL OF WILFULLY DISOBEYING A LAWFUL ORDER.  HE
WAS SENTENCED, INTER ALIA, TO A YEAR'S CONFINEMENT AT HARD LABOR AND
IMMEDIATELY ORDERED CONFINED TO HIS QUARTERS.  THE CONVENING AUTHORITY
APPROVED THE SENTENCE AND ORDERED PETITIONER CONFINED IN THE U.S.
DISCIPLINARY BARRACKS AT FORT LEAVENWORTH, KANS., PENDING COMPLETION OF
APPELLATE REVIEW.  PETITIONER (1) APPEALED ON THE MERITS TO THE
MILITARY TRIBUNALS (WHERE FINAL REVIEW IS PENDING) AND (2) SOUGHT
HABEAS CORPUS RELIEF FROM THE DISTRICT COURT, ARGUING THAT ARTICLES
71(C) AND 13 OF THE UNIFORM CODE OF MILITARY JUSTICE REQUIRED HIS
RELEASE PENDING THE OUTCOME OF HIS MILITARY APPEAL.  THE DISTRICT
COURT, OVERRULING THE GOVERNMENT'S CONTENTION THAT PETITIONER SHOULD BE
REQUIRED TO EXHAUST HIS MILITARY REMEDIES BEFORE SEEKING HABEAS CORPUS
RELIEF FROM THE CIVILIAN COURTS, FOUND PETITIONER'S INCARCERATION AT
FORT LEAVENWORTH WOULD BE INVALID UNDER ARTICLE 71(C).  THAT COURT
REFUSED TO REVIEW THE LEGALITY OF PETITIONER'S CONFINEMENT AT CANNON
AIR FORCE BASE.  THE COURT OF APPEALS, RELYING ON GUSIK V. SCHILDER,
340 U.S. 128, REVERSED, AND HELD THAT THE DISTRICT COURT COULD NOT
GRANT PETITIONER RELIEF UNTIL HE HAD CHALLENGED THE VALIDITY OF HIS
CONFINEMENT BEFORE THE MILITARY APPELLATE TRIBUNALS.  SHORTLY AFTER THE
COURT OF APPEALS DECISION, PETITIONER RECOGNIZED THAT HIS SENTENCE WAS
SCHEDULED TO EXPIRE AND HE MIGHT BE RELEASED FROM CUSTODY BEFORE THIS
COURT HAD AN OPPORTUNITY TO PASS ON HIS CLAIMS REGARDING HIS
CONFINEMENT AND THAT HIS CASE MIGHT BECOME MOOT.  THE COURT OF APPEALS
ON PETITIONER'S REQUEST AGREED TO STAY ITS MANDATE BUT REFUSED TO
REQUIRE PETITIONER'S RELEASE FROM CUSTODY AT THE CANNON AIR FORCE
BASE.  MR. JUSTICE DOUGLAS, FOLLOWING PETITIONER'S APPLICATION TO HIM
DURING A RECESS OF THIS COURT, ORDERED THAT PETITIONER BE PLACED IN "A
NONINCARCERATED STATUS" UNTIL THE FULL COURT COULD PASS ON THE MATTER,
AND PETITIONER WAS RELEASED TWO DAYS BEFORE HIS SENTENCE WAS TO
EXPIRE.  THE GOVERNMENT CONTENDED THAT PETITIONER'S CASE HAD
NEVERTHELESS BECOME MOOT, ARGUING THAT MR. JUSTICE DOUGLAS' ORDER DID
NOT COME WITHIN THE CATEGORY OF A "SUSPENSION," WHICH UNDER ARTICLE
57(B) TOLLS THE RUNNING OF A SENTENCE.  HELD: 

1.  THE CASE IS NOT MOOT.  MR. JUSTICE DOUGLAS' ORDER, EVEN IF IT
DID NOT CONSTITUTE A "SUSPENSION" UNDER ARTICLE 57(B), WAS SUFFICIENT
TO INTERRUPT THE RUNNING OF PETITIONER'S SENTENCE UNDER THE RATIONALE
OF SEC. 97(C) OF THE MANUAL FOR COURTS-MARTIAL THAT A MILITARY PRISONER
WHO HAS BEEN FREED FROM CONFINEMENT MAY NOT RECEIVE CREDIT FOR TIME
SERVED DURING THE PERIOD OF HIS RELEASE.  PP. 688-693. 

2.  HABEAS CORPUS PETITIONS FROM MILITARY PRISONERS SHOULD NOT BE
ENTERTAINED BY CIVILIAN COURTS UNTIL ALL AVAILABLE REMEDIES WITHIN THE
MILITARY COURT SYSTEM HAVE BEEN EXHAUSTED, GUSIK V. SCHILDER, SUPRA;
AND SINCE THIS PRINCIPLE APPLIES WITH EQUAL FORCE TO ANCILLARY MATTERS
SUCH AS THE LEGALITY OF PETITIONER'S CONFINEMENT PENDING COMPLETION OF
MILITARY REVIEW, PETITIONER'S FAILURE TO EXHAUST HIS REMEDY IN THE
COURT OF MILITARY APPEALS FORECLOSES THE RELIEF REQUESTED HERE.  PP.
693-698. 

402 F.2D 441, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS A CAREER OFFICER IN THE AIR FORCE WHO HAS COME TO
BELIEVE THAT THIS COUNTRY'S PARTICIPATION IN THE VIETNAMESE CONFLICT IS
UNJUST AND IMMORAL.  HAVING DECIDED THAT HE WOULD DO NOTHING TO FURTHER
THE NATION'S MILITARY EFFORT IN SOUTHEAST ASIA, CAPTAIN NOYD REFUSED TO
OBEY AN ORDER, ISSUED DECEMBER 5, 1967, REQUIRING HIM TO TEACH ONE OF
THE JUNIOR OFFICERS AT THE CANNON AIR FORCE BASE, NEW MEXICO, TO FLY A
MILITARY AIRPLANE.  /1/ 

IN RESPONSE, MAJOR GENERAL CHARLES BOND, JR., THE COMMANDER OF THE
TWELFTH AIR FORCE, CONVENED A GENERAL COURT-MARTIAL AT THE CANNON
BASE.  ON MARCH 8, 1968, THE COURT-MARTIAL FOUND NOYD GUILTY OF
WILFULLY DISOBEYING A LAWFUL ORDER; ON THE FOLLOWING DAY PETITIONER WAS
SENTENCED TO ONE YEAR'S CONFINEMENT AT HARD LABOR, FORFEITURE OF ALL
PAY AND ALLOWANCES, AND DISMISSAL FROM THE AIR FORCE.  AS SOON AS THE
COURT-MARTIAL ANNOUNCED ITS SENTENCE, CAPTAIN NOYD WAS ORDERED CONFINED
TO HIS QUARTERS.  THE COURT-MARTIAL'S JUDGMENT WAS THEN FORWARDED TO
GENERAL BOND FOR THE REVIEW REQUIRED BY 10 U.S.C. 864, AND ON MAY 10,
1968, THE GENERAL APPROVED THE SENTENCE, ORDERING THAT:  "PENDING
COMPLETION OF APPELLATE REVIEW, THE ACCUSED WILL BE CONFINED IN THE
UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS." 

AT THIS POINT, PETITIONER'S ATTORNEYS UNDERTOOK TWO COURSES OF
ACTION.  ON THE ONE HAND, THEY APPEALED THE MERITS OF PETITIONER'S
CONVICTION TO THE AIR FORCE BOARD OF REVIEW, WHICH IS THE APPELLATE
MILITARY TRIBUNAL CONGRESS HAS ESTABLISHED TO OVERSEE THE
ADMINISTRATION OF CRIMINAL JUSTICE IN PETITIONER'S BRANCH OF THE ARMED
FORCES.  ON THE OTHER HAND, THEY SOUGHT HABEAS CORPUS RELIEF FROM THE
CIVILIAN COURTS, ARGUING THAT THE UNIFORM CODE OF MILITARY JUSTICE
REQUIRED THAT PETITIONER BE RELEASED FROM CONFINEMENT PENDING THE
OUTCOME OF HIS MILITARY APPEAL. 

AT THE PRESENT TIME, PETITIONER'S APPEAL FROM HIS CONVICTION IS
STILL PENDING IN THE HIGHER REACHES OF THE MILITARY COURT SYSTEM. 
WHILE THE AIR FORCE BOARD OF REVIEW HAS NOW AFFIRMED THE JUDGMENT OF
THE COURT-MARTIAL, THE COURT OF MILITARY APPEALS, THE HIGHEST MILITARY
TRIBUNAL, HAS AGREED TO REVIEW CAPTAIN NOYD'S CASE.  PETITIONER DOES
NOT SUGGEST THAT WE MAY PROPERLY INTERFERE WITH THE ORDERLY PROCESS OF
MILITARY REVIEW BY CONSIDERING THE MERITS OF HIS CONVICTION AT THIS
JUNCTURE.  RATHER, WE ARE NOW ONLY ASKED TO VINDICATE HIS ASSERTED
RIGHT TO REMAIN FREE FROM CONFINEMENT WHILE THE VALIDITY OF HIS
CONVICTION IS STILL BEING LITIGATED IN THE APPELLATE MILITARY COURTS. 

        I. 

CAPTAIN NOYD'S EFFORT TO INVOKE THE ASSISTANCE OF THE CIVILIAN
COURTS WAS PRECIPITATED BY GENERAL BOND'S ORDER TRANSFERRING PETITIONER
TO THE DISCIPLINARY BARRACKS AT FORT LEAVENWORTH.  SHORTLY AFTER THE
ORDER WAS ISSUED, AND BEFORE IT WAS CARRIED OUT, PETITIONER SOUGHT A
WRIT OF HABEAS CORPUS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW MEXICO, ARGUING THAT BOTH HAS CONFINEMENT AT THE CANNON
AIR FORCE BASE AND HIS PROPOSED TRANSFER TO FORT LEAVENWORTH WERE IN
VIOLATION OF TWO PROVISIONS OF THE UNIFORM CODE OF MILITARY JUSTICE. 
FIRST, PETITIONER CONTENDED THAT HIS CONFINEMENT CONSTITUTED AN ATTEMPT
TO "EXECUTE" HIS SENTENCE IN VIOLATION OF ARTICLE 71(C) OF THE CODE,
WHICH PROVIDES: 

"NO SENTENCE WHICH INCLUDES, UNSUSPENDED, A DISHONORABLE OR BAD
CONDUCT DISCHARGE, OR CONFINEMENT FOR ONE YEAR OR MORE, MAY BE EXECUTED
UNTIL AFFIRMED BY A BOARD OF REVIEW AND, IN CASES REVIEWED BY IT, THE
COURT OF MILITARY APPEALS."  10 U.S.C. 871(C).  SECOND, PETITIONER
ARGUED THAT ARTICLE 13 OF THE CODE /2/  ONLY AUTHORIZED CONFINEMENT OF
A CONVICTED SERVICEMAN PENDING HIS APPEAL AFTER THE MILITARY HAS FOUND
THAT RESTRAINT IS NECESSARY TO PREVENT THE SERVICEMAN'S FLIGHT FROM THE
JURISDICTION.  SINCE NO SUCH FINDING HAS BEEN MADE IN THIS CASE,
PETITIONER ARGUED THAT THE CIVILIAN COURT SHOULD REQUIRE HIS COMPLETE
RELEASE. 

THE GOVERNMENT, IN ADDITION TO OPPOSING CAPTAIN NOYD'S CLAIMS ON THE
MERITS, ARGUED THAT PETITIONER SHOULD BE REQUIRED TO EXHAUST HIS
MILITARY REMEDIES BEFORE SEEKING HABEAS CORPUS RELIEF FROM THE CIVILIAN
COURTS.  THE DISTRICT COURT, HOWEVER, REFUSED TO APPLY THE EXHAUSTION
PRINCIPLE IN THE PRESENT CASE, FINDING THAT THE MILITARY COURT SYSTEM
DID NOT PROVIDE PETITIONER WITH AN ADEQUATE REMEDY BY WHICH HE COULD
TEST THE VALIDITY OF HIS CONFINEMENT, PENDING APPEAL, IN AN EXPEDITED
MANNER.  TURNING TO THE MERITS, THE DISTRICT JUDGE GRANTED PETITIONER
PART OF THE RELIEF HE REQUESTED.  WHILE THE COURT REFUSED TO REVIEW THE
LEGALITY OF NOYD'S CONFINEMENT AT THE CANNON AIR FORCE BASE, THE COURT
DID FIND THAT PETITIONER'S INCARCERATION AT FORT LEAVENWORTH WOULD
CONSTITUTE AN "EXECUTION" OF HIS SENTENCE IN VIOLATION OF ARTICLE
71(C), AND SO DECLARED GENERAL BOND'S ORDER INVALID.  /3/ 

BOTH SIDES APPEALED TO THE COURT OF APPEALS FOR THE TENTH CIRCUIT,
WHICH REVERSED THE DISTRICT COURT'S GRANT OF PARTIAL RELIEF.  RELYING
ON THIS COURT'S DECISION IN GUSIK V. SCHILDER, 340 U.S. 128 (1950), A
UNANIMOUS PANEL HELD THAT THE DISTRICT COURT COULD NOT PROPERLY GRANT
PETITIONER ANY FORM OF RELIEF UNTIL HE HAD FIRST CHALLENGED THE
VALIDITY OF HIS CONFINEMENT BEFORE THE APPELLATE TRIBUNALS WITHIN THE
MILITARY SYSTEM.  THE COURT EMPHASIZED THAT "THE COURT OF MILITARY
APPEALS HAS RECENTLY HELD THAT IT POSSESSES THE POWER TO ISSUE A HABEAS
CORPUS WRIT" IF A SERVICEMAN COULD DEMONSTRATE THAT HE WAS ILLEGALLY
RESTRAINED PENDING APPEAL, AND IT COULD PERCEIVE NO JUSTIFICATION FOR
PETITIONER'S FAILURE TO SEEK THE MILITARY COURT'S ASSISTANCE.  402 F.2D
441, 442-443.  WE GRANTED CERTIORARI TO CONSIDER THE PROPRIETY OF THE
APPLICATION OF THE RULE OF GUSIK V. SCHILDER IN THE CIRCUMSTANCES OF
THIS CASE.  393 U.S. 1048 (1969). 

II. 

SHORTLY AFTER THE COURT OF APPEALS ANNOUNCED ITS DECISION,
PETITIONER RECOGNIZED THAT SINCE HIS SENTENCE WAS SCHEDULED TO EXPIRE
ON DECEMBER 26, 1968, /4/  HE MIGHT WELL BE RELEASED FROM CUSTODY
BEFORE THIS COURT WOULD HAVE AN OPPORTUNITY TO PASS UPON HIS CLAIMS FOR
RELIEF PENDING HIS APPEAL TO THE MILITARY COURTS.  IN ORDER TO AVOID
THE POSSIBILITY OF MOOTNESS, PETITIONER PROMPTLY REQUESTED THE COURT OF
APPEALS TO STAY ITS MANDATE AND ORDER HIS RELEASE PENDING THIS COURT'S
DECISION ON HIS PETITION FOR CERTIORARI.  ON DECEMBER 6, THE COURT OF
APPEALS AGREED TO STAY ITS MANDATE, THEREBY KEEPING THE DISTRICT
COURT'S ORDER IN EFFECT, BUT REFUSED TO REQUIRE THE MILITARY TO RELEASE
CAPTAIN NOYD FROM CUSTODY AT THE CANNON AIR FORCE BASE. 

PETITIONER THEN APPLIED TO MR. JUSTICE WHITE, CIRCUIT JUSTICE FOR THE
TENTH CIRCUIT, FOR TEMPORARY RELEASE FROM ALL CONFINEMENT PENDING THIS
COURT'S ACTION ON HIS CERTIORARI PETITION.  WHEN THE CIRCUIT JUSTICE
DENIED THIS APPLICATION ON DECEMBER 18, 1968, A SECOND MOTION OF THE
SAME TENOR WAS MADE TO MR. JUSTICE DOUGLAS ON THE FOLLOWING DAY. 
NOTING THAT THE COURT WAS THEN IN RECESS AND WOULD NOT MEET AGAIN UNTIL
JANUARY 10, 1969, MR. JUSTICE DOUGLAS ORDERED THAT "PETITIONER . . . BE
PLACED IN A NON-INCARCERATED STATUS" UNTIL THE FULL COURT COULD HAVE AN
OPPORTUNITY TO PASS ON THE ISSUES RAISED IN A CONSIDERED MANNER. 
PURSUANT TO MR. JUSTICE DOUGLAS' ORDER, PETITIONER WAS RELEASED FROM
CONFINEMENT ON CHRISTMAS EVE, TWO DAYS BEFORE HIS SENTENCE WAS
SCHEDULED TO EXPIRE.  /5/ 

DESPITE MR. JUSTICE DOUGLAS' ORDER OF RELEASE, THE GOVERNMENT NOW
SUGGESTS THAT THIS CASE HAS BECOME MOOT.  IT CLAIMS THAT UNDER THE
APPLICABLE MILITARY LAW, A JUDICIAL ORDER THAT PETITIONER BE PLACED IN
A "NON-INCARCERATED STATUS" WAS INSUFFICIENT TO TOLL PETITIONER'S
SENTENCE, WHICH CONTINUED TO RUN UNTIL IT EXPIRED OF ITS OWN FORCE ON
DECEMBER 26.  THE GOVERNMENT BASES THIS CLAIM UPON ITS READING OF
ARTICLE 57(B) OF THE UNIFORM CODE OF MILITARY JUSTICE: 

"ANY PERIOD OF CONFINEMENT INCLUDED IN A SENTENCE OF A COURT-MARTIAL
BEGINS TO RUN FROM THE DATE THE SENTENCE IS ADJUDGED BY THE COURT
MARTIAL, BUT PERIODS DURING WHICH THE SENTENCE TO CONFINEMENT IS
SUSPENDED SHALL BE EXCLUDED IN COMPUTING THE SERVICE OF THE TERM OF
CONFINEMENT."  10 U.S.C. 857(B).  CITING INTERPRETIVE MILITARY
REGULATIONS, THE GOVERNMENT UNDERSTANDS THE STATUTE TO ESTABLISH THE
GENERAL RULE THAT "(THE DATE THE SENTENCE OF A COURT-MARTIAL IS
ADJUDGED WILL MARK THE BEGINNING OF A SENTENCE TO CONFINEMENT WHETHER
OR NOT THE ACCUSED HAD THEN BEEN PLACED IN CONFINEMENT."  APPREHENSION
AND CONFINEMENT:  MILITARY SENTENCES TO CONFINEMENT, AR 633-30; AFR 125
30. 

PETITIONER DOES NOT DISAGREE WITH THE GOVERNMENT'S UNDERSTANDING OF
THE GENERAL RULE, BUT RELIES ON THAT PART OF THE STATUTE WHICH
EXPRESSLY PROVIDES THAT A SENTENCE MAY BE TOLLED IF IT IS "SUSPENDED"
AND THE SERVICEMAN IS PLACED ON PROBATION.  PETITIONER ARGUES THAT
SINCE MR. JUSTICE DOUGLAS' ORDER, AND THIS COURT'S CONFIRMANCE OF IT,
HAD THE OBVIOUS PURPOSE TO PRESERVE THE STATUS QUO PENDING THE FULL
COURT'S CONSIDERATION OF THE MERITS OF HIS CERTIORARI PETITION, THE
ORDER SHOULD BE UNDERSTOOD TO HAVE "SUSPENDED" PETITIONER'S SENTENCE
WITHIN THE MEANING OF THE STATUTORY EXCEPTION TO THE GENERAL RULE.  IN
RESPONSE, THE GOVERNMENT EMPHASIZES THAT MR. JUSTICE DOUGLAS' ORDER DID
NOT EXPRESSLY "SUSPEND" PETITIONER'S SENTENCE AND SO CONTENDS THAT THE
STATUTORY EXCEPTION IS NOT APPLICABLE IN THIS INSTANCE. 

WE FIND IT UNNECESSARY TO DECIDE THIS QUESTION.  FOR EVEN IF MR.
JUSTICE DOUGLAS' ORDER DID NOT SATISFY THE STATUTORY EXCEPTION, WE HOLD
THAT IT WAS SUFFICIENT TO INTERRUPT THE RUNNING OF PETITIONER'S
SENTENCE.  LIKE THE COURT OF MILITARY APPEALS, WE DO NOT BELIEVE THAT
CONGRESS INTENDED THAT THE GENERAL RULE STATED IN ARTICLE 57(B) BE
INEXORABLY APPLIED IN ALL SITUATIONS WHICH DO NOT FALL WITHIN THE
"SUSPENSION OF SENTENCE" EXCEPTION: 

"CONGRESS DID NOT MENTION ALL CONTINGENCIES WHICH WOULD PREVENT AN
ACCUSED FROM BEING CREDITED WITH TIME SERVED.  COMMON SENSE SUGGESTS
THAT IF AN ACCUSED ESCAPED FROM CONFINEMENT, HIS PERIOD OF SERVICE
WOULD BE INTERRUPTED AND HE WOULD BE REQUIRED TO MAKE UP THE TIME AT
THE END OF THE PERIOD."  UNITED STATES V. BRYANT, 12 U.S.C.M.A. 133,
137, 30 C.M.R. 133, 137 (1961).  WE THINK IT EQUALLY CLEAR THAT ARTICLE
57(B) WAS NOT INTENDED TO GIVE A LITIGIOUS SERVICEMAN A BONUS WHEN HE
OBTAINS TEMPORARY RELEASE FROM CONFINEMENT THE MILITARY WAS SEEKING TO
IMPOSE.  RATHER, THE STATUTE SERVES TO PROTECT A CONVICTED SERVICEMAN
WHOM THE MILITARY WISHES TO RELEASE FROM CONFINEMENT BEFORE HIS TERM
HAS RUN.  IF A SERVICEMAN'S COMMANDING OFFICER SIMPLY RELEASES HIM FROM
CONFINEMENT WITHOUT "SUSPENDING" HIS SENTENCE, THE CODE DOES NOT DEMAND
THAT THE SERVICEMAN BE GIVEN A HEARING BEFORE HE IS REINCARCERATED.  IN
CONTRAST, THE CODE DEMANDS THAT ONCE A SENTENCE IS "SUSPENDED," IT MAY
NOT BE REINSTATED UNLESS THE ACCUSED IS GIVEN A HEARING, AT WHICH HE IS
REPRESENTED BY COUNSEL, IN ORDER TO DETERMINE WHETHER HE HAS VIOLATED
THE CONDITIONS OF HIS PROBATION.  10 U.S.C. 872(A).  ARTICLE 57(B),
THEN, REPRESENTS CONGRESS' DECISION THAT EVEN THOUGH A MAN IS
TEMPORARILY SET AT LIBERTY, HE SHOULD BE GIVEN SENTENCE CREDIT UNLESS
HE IS SURE THAT HIS FREEDOM WILL NOT BE CURTAILED AT A LATER DATE
WITHOUT A PLENARY HEARING.  OBVIOUSLY, THE STATUTE'S PURPOSE WILL NOT
BE SERVED IN THE PRESENT CASE, WHERE CAPTAIN NOYD'S LIBERTY WILL ONLY
BE LIMITED ONCE AGAIN AFTER A FULL ARGUMENT BEFORE THE JUDICIARY. 

IN RECOGNITION OF THIS FACT, THE MANUAL FOR COURTS-MARTIAL HAS,
SINCE ITS PROMULGATION IN 1951, REQUIRED THAT A SERVICEMAN NOT BE GIVEN
CREDIT FOR THE TIME DURING WHICH HE HAS OBTAINED RELEASE FROM
CONFINEMENT IN CASES LIKE THE PRESENT ONE.  THE MANUAL, WHICH HAS THE
FORCE OF LAW UNLESS IT IS "CONTRARY TO OR INCONSISTENT WITH" THE
UNIFORM CODE CONGRESS HAS ENACTED, 10 U.S.C. 836(A), PROVIDES: 

"A SENTENCE TO CONFINEMENT . . . IS CONTINUOUS UNTIL THE TERM
EXPIRES, WITH CERTAIN EXCEPTIONS.  THESE EXCEPTIONS INCLUDE THE
FOLLOWING:

.          .          .          . 

     "PERIODS DURING WHICH THE PERSON UNDERGOING SUCH A SENTENCE IS

  ABSENT WITHOUT AUTHORITY . . . OR IS ERRONEOUSLY RELEASED FROM

  CONFINEMENT THROUGH MISREPRESENTATION OR FRAUD ON THE PART OF THE

  PRISONER, OR IS ERRONEOUSLY RELEASED FROM CONFINEMENT UPON HIS

  PETITION FOR A WRIT OF HABEAS CORPUS UNDER A COURT ORDER WHICH IS

  LATER REVERSED BY A COMPETENT TRIBUNAL . . . ."  SEC. 97(C),

  MANUAL FOR COURTS-MARTIAL, UNITED STATES (1951). 

THUS, THE MANUAL REQUIRES THAT A SERVICEMAN RECEIVE NO SENTENCE CREDIT
FOR THE PERIOD HE HAS AVOIDED CONFINEMENT IF THE JUDICIAL DECISION
GRANTING HIM FREEDOM IS REVERSED ON APPEAL.  IT FOLLOWS A FORTIORI THAT
THE PRINCIPLES ESTABLISHED IN THE MANUAL REQUIRE THAT CAPTAIN NOYD BE
DENIED SENTENCE CREDIT AS WELL.  FOR IN THE PRESENT LITIGATION,
PETITIONER HAS NOT CONVINCED ANY COURT THAT HE MAY PROPERLY BE RELIEVED
FROM ALL CONFINEMENT.  PETITIONER OBTAINED HIS RELEASE FROM MR. JUSTICE
DOUGLAS SIMPLY BY SHOWING THAT HIS CHANCES OF SUCCESS ON THE MERITS
WERE SUFFICIENTLY GREAT TO WARRANT THE GRANT OF INTERLOCUTORY RELIEF. 
SURELY, HE IS NOT ENTITLED TO MORE FAVORABLE SENTENCING TREATMENT THAN
THE SERVICEMAN WHO HAS AT LEAST CONVINCED ONE COURT THAT HIS CLAIM TO
RELEASE IS LEGALLY SOUND BUT WHOSE ARGUMENTS HAVE NOT BEEN UPHELD ON
APPEAL.     WE HOLD THAT THE PRINCIPLES OF THE MANUAL FOR COURTS
MARTIAL OPERATED TO INTERRUPT THE RUNNING OF CAPTAIN NOYD'S SENTENCE AT
THE TIME OF HIS RELEASE ON DECEMBER 24, 1968, AND HENCE THAT THE CASE
BEFORE US IS NOT MOOT. 

        III. 

WE NOW TURN TO CONSIDER WHETHER PETITIONER COULD PROPERLY SEEK HIS
RELEASE IN CIVILIAN COURTS WITHOUT MAKING ANY EFFORT TO INVOKE THE
ASSISTANCE OF THE COURTS WITHIN THE MILITARY SYSTEM.  GUSIK V.
SCHILDER, 340 U.S. 128 (1950), ESTABLISHED THE GENERAL RULE THAT HABEAS
CORPUS PETITIONERS FROM MILITARY PRISONERS SHOULD NOT BE ENTERTAINED BY
FEDERAL CIVILIAN COURTS UNTIL ALL AVAILABLE REMEDIES WITHIN THE
MILITARY COURT SYSTEM HAVE BEEN INVOKED IN VAIN.  MR. JUSTICE DOUGLAS,
FOR A UNANIMOUS COURT, EXPLAINED SOME OF THE IMPORTANT REASONS WHICH
REQUIRE CIVILIAN COURTS TO RESPECT THE INTEGRITY OF THE MILITARY COURT
SYSTEM THAT CONGRESS HAS ESTABLISHED: 

"AN ANALOGY IS A PETITION FOR HABEAS CORPUS IN THE FEDERAL COURT
CHALLENGING THE JURISDICTION OF A STATE COURT.  IF THE STATE PROCEDURE
PROVIDES A REMEDY, WHICH THOUGH AVAILABLE HAS NOT BEEN EXHAUSTED, THE
FEDERAL COURTS WILL NOT INTERFERE . . . . THE POLICY UNDERLYING THAT
RULE IS AS PERTINENT TO THE COLLATERAL ATTACK OF MILITARY JUDGMENTS AS
IT IS TO COLLATERAL ATTACK OF JUDGMENTS RENDERED IN STATE COURTS.  IF
AN AVAILABLE PROCEDURE HAS NOT BEEN EMPLOYED TO RECTIFY THE ALLEGED
ERROR WHICH THE FEDERAL COURT IS ASKED TO CORRECT, ANY INTERFERENCE BY
THE FEDERAL COURT MAY BE WHOLLY NEEDLESS.  THE PROCEDURE ESTABLISHED TO
POLICE THE ERRORS OF THE TRIBUNAL WHOSE JUDGMENT IS CHALLENGED MAY BE
ADEQUATE FOR THE OCCASION.  IF IT IS, ANY FRICTION BETWEEN THE FEDERAL
COURT AND THE MILITARY OR STATE TRIBUNAL IS SAVED . . . . SUCH A
PRINCIPLE OF JUDICIAL ADMINISTRATION IS IN NO SENSE A SUSPENSION OF THE
WRIT OF HABEAS CORPUS.  IT IS MERELY A DEFERMENT OF RESORT TO THE WRIT
UNTIL OTHER CORRECTIVE PROCEDURES ARE SHOWN TO BE FUTILE."  ID., AT 131
132.  IT IS TRUE, OF COURSE, THAT THE PRINCIPLES OF FEDERALISM WHICH
ENLIGHTEN THE LAW OF FEDERAL HABEAS CORPUS FOR STATE PRISONERS ARE NOT
RELEVANT TO THE PROBLEM BEFORE US.  NEVERTHELESS OTHER CONSIDERATIONS
REQUIRE A SUBSTANTIAL DEGREE OF CIVILIAN DEFERENCE TO MILITARY
TRIBUNALS.  IN REVIEWING MILITARY DECISIONS, WE MUST ACCOMMODATE THE
DEMANDS OF INDIVIDUAL RIGHTS AND THE SOCIAL ORDER IN A CONTEXT WHICH IS
FAR REMOVED FROM THOSE WHICH WE ENCOUNTER IN THE ORDINARY RUN OF
CIVILIAN LITIGATION, WHETHER STATE OR FEDERAL.  IN DOING SO, WE MUST
INTERPRET A LEGAL TRADITION WHICH IS RADICALLY DIFFERENT FROM THAT
WHICH IS COMMON IN CIVIL COURTS. 

IT IS FOR THESE REASONS THAT CONGRESS, IN THE EXERCISE OF ITS POWER
TO "MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL
FORCES,"  /6/  HAS NEVER GIVEN THIS COURT APPELLATE JURISDICTION TO
SUPERVISE THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE MILITARY.  WHEN
AFTER THE SECOND WORLD WAR, CONGRESS BECAME CONVINCED OF THE NEED TO
ASSURE DIRECT CIVILIAN REVIEW OVER MILITARY JUSTICE, IT DELIBERATELY
CHOSE TO CONFIDE THIS POWER TO A SPECIALIZED COURT OF MILITARY APPEALS,
SO THAT DISINTERESTED CIVILIAN JUDGES COULD GAIN OVER TIME A FULLY
DEVELOPED UNDERSTANDING OF THE DISTINCTIVE PROBLEMS AND LEGAL
TRADITIONS OF THE ARMED FORCES. 

ALMOST ONE YEAR BEFORE PETITIONER SOUGHT HABEAS CORPUS RELIEF FROM
THE FEDERAL DISTRICT COURT SITTING IN NEW MEXICO, THE COURT OF MILITARY
APPEALS HAD HELD THAT IT WOULD, IN APPROPRIATE CASES, GRANT THE RELIEF
PETITIONER NOW DEMANDS FROM US.  LEVY V. RESOR, 17 U.S.C.M.A. 135, 37
C.M.R. 399 (1967).  /7/  PETITIONER, HOWEVER, HAS MADE NO EFFORT TO
INVOKE THE JURISDICTION OF THE COURT OF MILITARY APPEALS. 
NEVERTHELESS, HE WOULD HAVE CIVILIAN COURTS INTERVENE PRECIPITATELY
INTO MILITARY LIFE WITHOUT THE GUIDANCE OF THE COURT TO WHICH CONGRESS
HAS CONFIDED PRIMARY RESPONSIBILITY FOR THE SUPERVISION OF MILITARY
JUSTICE IN THIS COUNTRY AND ABROAD. 

PETITIONER EMPHASIZES THAT IN THE PRESENT CASE WE ARE NOT CALLED
UPON TO REVIEW PREMATURELY THE MERITS OF THE COURT-MARTIAL PROCEEDING
ITSELF.  INSTEAD, WE ARE MERELY ASKED TO DETERMINE THE LEGALITY OF
PETITIONER'S CONFINEMENT WHILE HE IS EXERCISING HIS RIGHT OF APPEAL TO
THE HIGHER MILITARY COURTS.  IT IS SAID THAT THERE IS LESS
JUSTIFICATION FOR DEFERENCE TO MILITARY TRIBUNALS IN ANCILLARY MATTERS
OF THIS SORT.  WE CANNOT AGREE.  ALL OF THE REASONS SUPPORTING THIS
COURT'S DECISION IN GUSIK V. SCHILDER, SUPRA, ARE APPLICABLE HERE.  IF
THE MILITARY COURTS DO VINDICATE PETITIONER'S CLAIM, THERE WILL BE NO
NEED FOR CIVILIAN JUDICIAL INTERVENTION.  NEEDLESS FRICTION WILL RESULT
IF CIVILIAN COURTS THROUGHOUT THE LAND ARE OBLIGED TO REVIEW COMPARABLE
DECISIONS OF MILITARY COMMANDERS IN THE FIRST INSTANCE.  MOREOVER, IF
WE WERE TO REACH THE MERITS OF PETITIONER'S CLAIM FOR RELIEF PENDING
HIS MILITARY APPEAL, WE WOULD BE OBLIGED TO INTERPRET EXTREMELY
TECHNICAL PROVISIONS OF THE UNIFORM CODE WHICH HAVE NO ANALOGS IN
CIVILIAN JURISPRUDENCE, AND WHICH HAVE NOT EVEN BEEN FULLY EXPLORED BY
THE COURT OF MILITARY APPEALS ITSELF.  THERE SEEMS LITTLE REASON TO
BLAZE A TRAIL ON UNFAMILIAR GROUND WHEN THE HIGHEST MILITARY COURT
STANDS READY TO CONSIDER PETITIONER'S ARGUMENTS.  /8/ 

PETITIONER CONTENDS, HOWEVER, THAT THE COURT OF MILITARY APPEALS
CANNOT BE EXPECTED TO PROTECT HIS RIGHTS IN A FULLY EFFECTIVE WAY.  HIS
PRINCIPAL ARGUMENT IS BASED ON THE SIMPLE FACT THAT THE COURT OF
MILITARY APPEALS SITS EXCLUSIVELY IN WASHINGTON, D.C.  THUS, BEFORE A
SERVICEMAN MAY INVOKE ITS HABEAS CORPUS JURISDICTION, HE MUST SOMEHOW
OBTAIN A LAWYER WILLING AND ABLE TO CONDUCT A LAWSUIT IN THE NATION'S
CAPITAL.  IT IS SAID THAT THIS PRACTICAL DIFFICULTY MAKES IT CLEAR THAT
THE COURT OF MILITARY APPEALS CANNOT PROVIDE PETITIONER WITH ADEQUATE
RELIEF. 

THIS ARGUMENT SEEMS TO US FAR TOO SWEEPING TO BE ACCEPTABLE. 
INDIVIDUALS CONVICTED OF CRIME IN THE CIVIL JUDICIAL SYSTEM ARE OFTEN
OBLIGED TO APPEAL TO STATE COURTS WHICH ARE FAR DISTANT FROM THE PLACE
AT WHICH THEY ARE INCARCERATED.  NEVERTHELESS, THIS FACT ALONE HAS
NEVER BEEN CONSIDERED SUFFICIENT TO PERMIT A FEDERAL DISTRICT COURT TO
CONSIDER A PETITION FOR HABEAS CORPUS WITHOUT DEMANDING THAT THE
PRISONER EXHAUST ALL OF THE PRESENTLY AVAILABLE REMEDIES OFFERED BY THE
STATE'S APPELLATE COURTS.  SIMILARLY, THE FACT THAT CAPTAIN NOYD IS
CONFINED FAR FROM WASHINGTON, D.C., IS NOT ENOUGH, STANDING ALONE, TO
PERMIT HIM TO CIRCUMVENT THE MILITARY COURT SYSTEM. 

NOYD ARGUES, HOWEVER, THAT THE GREAT DISTANCE OF THE COURT OF
MILITARY APPEALS IS OF SPECIAL SIGNIFICANCE IN CASES LIKE THE PRESENT
ONE, WHERE SPEED IS ESSENTIAL IF RELIEF IS TO BE AT ALL EFFECTIVE.  BUT
PETITIONER CONCEDES THAT THE COURT OF MILITARY APPEALS HAS THUS FAR
ACTED SPEEDILY WHEN CONFRONTED WITH AN APPLICATION FOR AN EMERGENCY
WRIT, /9/  AND THERE IS NO REASON TO BELIEVE THAT THE COURT WOULD NOT
HAVE RESPONDED RAPIDLY IF CAPTAIN NOYD HAD SOUGHT ITS ASSISTANCE.  /10/
NOR HAS PETITIONER EVER SUGGESTED THAT IT WAS IMPOSSIBLE FOR HIM TO
OBTAIN A LAWYER WHO WAS WILLING TO PRESENT AN APPROPRIATE APPLICATION
BEFORE THE COURT OF MILITARY APPEALS WITH THE REQUISITE DISPATCH. 

INSTEAD, PETITIONER SIMPLY ARGUES THAT OTHER SERVICEMEN IN OTHER
SITUATIONS COULD CONCEIVABLY HAVE GREAT DIFFICULTY IN OBTAINING A
LAWYER WHO WAS ABLE TO MOVE QUICKLY BEFORE THE MILITARY COURT SITTING
IN WASHINGTON.  MOREOVER, IT IS SAID THAT THE COURT OF MILITARY APPEALS
WOULD BE INUNDATED WITH APPLICATIONS FOR EMERGENCY WRITS IF ALL
SERVICEMEN IN PETITIONER'S POSITION WERE REQUIRED TO SEEK RELIEF WITHIN
THE MILITARY SYSTEM.  IT WILL BE TIME ENOUGH, HOWEVER, TO CONSIDER
THESE PROBLEMS WHEN, AND IF, THEY ARISE.  IT MAY BE THAT SITUATIONS
LIKE THE PRESENT ONE ARE UNUSUAL, OR THAT THE COURT OF MILITARY APPEALS
WILL BE ABLE TO ANNOUNCE CLEAR RULES AS TO THE PROPER TREATMENT OF
CONVICTED PRISONERS PENDING APPEAL, OR THAT CONGRESS WILL ACT TO
FACILITATE THE HEARING OF APPLICATIONS FOR EMERGENCY WRITS WITHIN THE
MILITARY SYSTEM.  SINCE PETITIONER HAS AT NO TIME ATTEMPTED TO SHOW
THAT PROMPT AND EFFECTIVE RELIEF WAS UNAVAILABLE FROM THE COURT OF
MILITARY APPEALS IN HIS CASE, WE HOLD THAT PETITIONER'S FAILURE TO
EXHAUST THIS REMEDY BEFORE SEEKING THE ASSISTANCE OF THE CIVILIAN
COURTS IS NOT EXCUSED.  /11/ 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.  IN
LIGHT OF THE SUBSTANTIAL QUESTIONS RAISED BY PETITIONER, HOWEVER, WE
THINK IT PLAIN THAT PETITIONER IN NO SENSE ACTED IN BAD FAITH WHEN HE
FAILED TO EXHAUST HIS MILITARY REMEDIES BEFORE INVOKING THE
JURISDICTION OF THE DISTRICT COURT.  CONSEQUENTLY, WE CONSIDER IT
APPROPRIATE FOR US TO CONTINUE MR. JUSTICE DOUGLAS' ORDER IN EFFECT
UNTIL OUR MANDATE ISSUES, IN ORDER TO GIVE PETITIONER AN OPPORTUNITY TO
PRESENT HIS ARGUMENTS TO THE COURT OF MILITARY APPEALS.  SEE 28 U.S.C.
1651(A); CF. PHILLIPS V. UNITED STATES, 312 U.S. 246, 254 (MR. JUSTICE
FRANKFURTER).  WHILE IT IS TRUE THAT CAPTAIN NOYD HAS ONLY TWO DAYS YET
TO SERVE ON HIS SENTENCE, HE SHOULD NOT BE REQUIRED TO SURRENDER HIS
FREEDOM FOR EVEN THIS SHORT TIME UNLESS IT IS FOUND THAT THE LAW SO
REQUIRES. 

              IT IS SO ORDERED. 

/1/  BEFORE THIS INCIDENT TOOK PLACE, CAPTAIN NOYD SOUGHT TO INVOKE
THE JURISDICTION OF THE CIVILIAN FEDERAL COURTS IN AN EFFORT TO REQUIRE
THE AIR FORCE EITHER TO ASSIGN HIM TO DUTIES CONSISTENT WITH HIS
BELIEFS OR TO DISMISS HIM.  THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLORADO DENIED RELIEF BECAUSE PETITIONER HAD NOT YET BEEN
COURT-MARTIALED FOR REFUSING TO OBEY ORDERS AND SO HAD NOT FULLY
EXHAUSTED HIS REMEDIES WITHIN THE MILITARY SYSTEM.  NOYD V. MCNAMARA,
267 F.SUPP.  701 (1967).  THE COURT OF APPEALS FOR THE TENTH CIRCUIT
AFFIRMED, 378 F.2D 538, AND THIS COURT DENIED CERTIORARI, 389 U.S. 1022
(1967).  THE COURTS OF APPEALS FOR THE SECOND AND FIFTH CIRCUITS HAVE,
HOWEVER, SUBSEQUENTLY DECIDED THAT THE EXHAUSTION DOCTRINE DID NOT
NECESSARILY REQUIRE A SERVICEMAN TO AWAIT THE MILITARY'S DECISION TO
CONVENE A COURT-MARTIAL BEFORE SEEKING RELIEF IN THE CIVILIAN COURTS. 
HAMMOND V. LENFEST, 398 F.2D 705 (C.A. 2D CIR. 1968); IN RE KELLY, 401
F.2D 211 (C.A. 5TH CIR. 1968).  CF. BROWN V. MCNAMARA, 387 F.2D 150
(C.A. 3D CIR. 1967).  WE HAVE NOT FOUND IT NECESSARY TO RESOLVE THIS
CONFLICT AMONG THE CIRCUITS IN ORDER TO DECIDE THE NARROW ISSUE IN THIS
CASE. 

/2/  THIS PROVISION OF THE CODE READS: 

"ART. 13.  PUNISHMENT PROHIBITED BEFORE TRIAL. 

"SUBJECT TO SECTION 857 OF THIS TITLE (ARTICLE 57 OF THE CODE), NO
PERSON, WHILE BEING HELD FOR TRIAL OR THE RESULT OF TRIAL, MAY BE
SUBJECTED TO PUNISHMENT OR PENALTY OTHER THAN ARREST OR CONFINEMENT
UPON THE CHARGES PENDING AGAINST HIM, NOR SHALL THE ARREST OR
CONFINEMENT IMPOSED UPON HIM BE ANY MORE RIGOROUS THAN THE
CIRCUMSTANCES REQUIRE TO INSURE HIS PRESENCE, BUT HE MAY BE SUBJECTED
TO MINOR PUNISHMENT DURING THAT PERIOD FOR INFRANCTIONS OF
DISCIPLINE."  10 U.S.C. 813. 

/3/  AFTER THE DISTRICT COURT HELD THAT PETITIONER COULD NOT BE
LAWFULLY TRANSFERRED TO FORT LEAVENWORTH, THE MILITARY SIGNIFICANTLY
INCREASED THE DEGREE OF RESTRAINT THAT WAS IMPOSED UPON CAPTAIN NOYD AT
THE CANNON AIR FORCE BASE.  PETITIONER WAS PERMITTED TO SEE HIS FAMILY
ONLY TWICE EACH WEEK AND WAS FORBIDDEN TO LEAVE HIS QUARTERS EXCEPT FOR
NARROWLY LIMITED PURPOSES.  SEE LETTER REGARDING ARREST IN QUARTERS,
FROM COL. GEORGE R. DOERR, APPENDIX 32-34. 

/4/  WHILE PETITIONER'S ONE-YEAR SENTENCE BEGAN TO RUN ON MARCH 9,
1968, WHEN IT WAS ANNOUNCED BY THE COURT-MARTIAL, THE AIR FORCE AWARDED
HIM SENTENCE CREDITS FOR GOOD BEHAVIOR, THEREBY PERMITTING HIM TO
OBTAIN HIS RELEASE FROM CUSTODY AFTER A PERIOD OF SOME NINE AND ONE
HALF MONTHS. 

/5/  WHEN THIS COURT GRANTED CERTIORARI ON JANUARY 20, 1969, WE ALSO
ORDERED THAT THE "(STAY HERETOFORE GRANTED BY MR. JUSTICE DOUGLAS SHALL
REMAIN IN EFFECT PENDING ISSUANCE OF JUDGMENT OF THIS COURT OR UNTIL
FURTHER ORDER OF THIS COURT."  393 U.S. 1048. 

/6/  CONSTITUTION OF THE UNITED STATES, ART. I, SEC. 8, CL. 14. 

/7/  THE GOVERNMENT DOES NOT RENEW THE ARGUMENTS IT HAS ON OCCASION
ADVANCED BEFORE THE COURT OF MILITARY APPEALS, SEE BRIEF IN SUPPORT OF
MOTION TO STRIKE AND DISMISS PETITION, UNITED STATES V. FRISCHHOLZ,
DOCKET NO. 14,270 (1965), TO THE EFFECT THAT THE COURT OF MILITARY
APPEALS LACKS THE POWER TO GRANT EMERGENCY WRITS.  IN ITS DECISION IN
THE FRISCHHOLZ CASE, 16 U.S.C.M.A. 150, 36 C.M.R. 306 (1966), THE COURT
OF MILITARY APPEALS PROPERLY REJECTED THE GOVERNMENT'S ARGUMENT,
HOLDING THAT THE ALL WRITS ACT, 28 U.S.C. 1651(A), PERMITTED IT TO
ISSUE ALL "WRITS NECESSARY OR APPROPRIATE IN AID OF (ITS) . . .
JURISDICTION."  SINCE THE ALL WRITS ACT APPLIES BY ITS TERMS TO ANY
"COURTS ESTABLISHED BY ACT OF CONGRESS," AND SINCE THE REVISERS OF 1948
EXPRESSLY NOTED THAT "(THE REVISED SECTION EXTENDS THE POWER TO ISSUE
WRITS IN AID OF JURISDICTION, TO ALL COURTS ESTABLISHED BY ACT OF
CONGRESS, THUS MAKING EXPLICIT THE RIGHT TO EXERCISE POWERS IMPLIED
FROM THE CREATION OF SUCH COURTS," WE DO NOT BELIEVE THAT THERE CAN BE
ANY DOUBT AS TO THE POWER OF THE COURT OF MILITARY APPEALS TO ISSUE AN
EMERGENCY WRIT OF HABEAS CORPUS IN CASES, LIKE THE PRESENT ONE, WHICH
MAY ULTIMATELY BE REVIEWED BY THAT COURT.  A DIFFERENT QUESTION WOULD,
OF COURSE, ARISE IN A CASE WHICH THE COURT OF MILITARY APPEALS IS NOT
AUTHORIZED TO REVIEW UNDER THE GOVERNING STATUTES.  CF. UNITED STATES
V. BEVILACQUA, 18 U.S.C.M.A. 10, 39 C.M.R. 10 (1968). 

/8/  PETITIONER CONTENDS THAT OUR DECISIONS IN TOTH V. QUARLES, 350
U.S. 11 (1955); REID V. COVERT, 354 U.S. 1 (1957); AND MCELROY V.
GUAGLIARDO, 361 U.S. 281 (1960), JUSTIFY HIS POSITION THAT EXHAUSTION
OF MILITARY REMEDIES IS NOT REQUIRED IN THIS CASE.  THE CITED CASES
HELD THAT THE CONSTITUTION BARRED THE ASSERTION OF COURT-MARTIAL
JURISDICTION OVER VARIOUS CLASSES OF CIVILIANS CONNECTED WITH THE
MILITARY, AND IT IS TRUE THAT THIS COURT THERE VINDICATED COMPLAINANTS'
CLAIMS WITHOUT REQUIRING EXHAUSTION OF MILITARY REMEDIES.  WE DID SO,
HOWEVER, BECAUSE WE DID NOT BELIEVE THAT THE EXPERTISE OF MILITARY
COURTS EXTENDED TO THE CONSIDERATION OF CONSTITUTIONAL CLAIMS OF THE
TYPE PRESENTED.  MOREOVER, IT APPEARED ESPECIALLY UNFAIR TO REQUIRE
EXHAUSTION OF MILITARY REMEDIES WHEN THE COMPLAINANTS RAISED
SUBSTANTIAL ARGUMENTS DENYING THE RIGHT OF THE MILITARY TO TRY THEM AT
ALL.  NEITHER OF THESE FACTORS IS PRESENT IN THE CASE BEFORE US. 
/9/  IN LEVY V. RESOR, SUPRA, A PETITION FOR EMERGENCY RELIEF WAS FILED
ON JUNE 20, 1967.  THE COURT OF MILITARY APPEALS PROMPTLY ORDERED ORAL
ARGUMENT AND FILED A FULL OPINION ON JULY 7, 1967.  BOTH THE PETITIONER
AND THE GOVERNMENT INDICATE THAT A SUBSEQUENT HABEAS CORPUS APPLICATION
FILED BY CAPTAIN LEVY WAS RULED ON BY THE COURT OF MILITARY APPEALS
WITHIN FIVE DAYS AFTER ITS SUBMISSION. 

/10/  CONSEQUENTLY, WE NEED NOT DECIDE HOW LONG A SERVICEMAN MUST
WAIT FOR A DECISION ON HIS APPLICATION BY THE COURT OF MILITARY APPEALS
BEFORE HE MAY PETITION FOR A WRIT OF HABEAS CORPUS FROM THE APPROPRIATE
CIVILIAN COURT. 

/11/  THE GOVERNMENT SUGGESTS THAT PETITIONER SHOULD ALSO BE
REQUIRED TO EXHAUST A SECOND REMEDY ALLEGEDLY AFFORDED HIM WITHIN THE
MILITARY SYSTEM.  IT IS SAID THAT CAPTAIN NOYD SHOULD HAVE REQUESTED
THE AIR FORCE BOARD OF REVIEW TO RELEASE HIM PENDING THE EXHAUSTION OF
HIS RIGHTS OF APPEAL.  THE GOVERNMENT, HOWEVER, CITES NO DECISION OF A
BOARD OF REVIEW WHICH ASSERTS THE POWER TO GRANT EMERGENCY
INTERLOCUTORY RELIEF PRIOR TO THE BOARD'S CONSIDERATION OF A CASE ON
THE MERITS; NOR ARE WE REFERRED TO ANY STATUTE WHICH UNEQUIVOCALLY
GRANTS THIS AUTHORITY.  IN THE ABSENCE OF ANY ATTEMPT BY THE BOARDS OF
REVIEW TO ASSERT SUCH A POWER, WE DO NOT BELIEVE THAT PETITIONER MAY
PROPERLY BE REQUIRED TO EXHAUST A REMEDY WHICH MAY NOT EXIST.  CF.
UNION PACIFIC R. CO. V. WELD COUNTY, 247 U.S. 282 (1918); TOWNSHIP OF
HILLSBOROUGH V. CROMWELL, 326 U.S. 620 (1946). 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE WHITE, DISSENTING. 

THE PETITION FOR CERTIORARI IN THIS CASE SOUGHT A DETERMINATION THAT
PETITIONER WAS BEING SUBJECTED TO ILLEGAL RESTRAINTS PENDING THE APPEAL
OF HIS COURT-MARTIAL CONVICTION TO THE APPROPRIATE TRIBUNALS.  SINCE
HIS SENTENCE HAD BEGUN TO RUN AT THE TIME IT WAS IMPOSED, IT WOULD HAVE
EXPIRED ON DECEMBER 26, 1968, UNLESS SUSPENDED OR OTHERWISE
INTERRUPTED.  HENCE WHEN THE PETITION WAS FILED HERE, THE MOST
PETITIONER HAD TO GAIN FROM THIS LITIGATION, WHICH DOES NOT REACH THE
MERITS OF HIS CONVICTION, WAS THAT FOR THE DURATION OF HIS SENTENCE--
TWO DAYS AT THE TIME MR. JUSTICE DOUGLAS ORDERED HIS RELEASE FRON
CONFINEMENT-- HE WAS NOT TO BE SUBJECT TO THE RESTRAINTS THEN BEING
IMPOSED ON HIM.  SURELY THIS IS A PICAYUNE ISSUE WHICH DOES NOT WARRANT
DECISION HERE IN ANY EVENT, EITHER ALONE OR IN CONJUNCTION WITH THE
EXHAUSTION QUESTION.  PETITIONER SHOULD NOT HAVE BROUGHT THE CUSTODY
QUESTION TO THE FEDERAL COURTS IN THE FIRST PLACE; AND BY THE SAME
TOKEN, IF TO PRESERVE THE ISSUE HE DESIRED SUSPENSION OF HIS SENTENCE
OR ITS EQUIVALENT, THAT MATTER ALSO SHOULD HAVE BEEN PRESENTED FIRST TO
THE MILITARY TRIBUNALS RATHER THAN TO THE DISTRICT COURT.  I WOULD
DISMISS THE WRIT AS IMPROVIDENTLY GRANTED. 

MARVIN M. KARPATKIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WERE MELVIN L. WULF, WILLIAM F. REYNARD, ALAN H. LEVINE,
RHODA H. KARPATKIN, AND MICHAEL N. POLLET. 

JAMES VANR.  SPRINGER ARGUED THE CAUSE FOR RESPONDENTS.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WILSON, JOSEPH J. CONNOLLY, BEATRICE ROSENBERG, AND ROGER A. PAULEY. 
..END :












CIPRIANO V. CITY OF HOUMA, 395 U.S. 701 


       CIPRIANO V. CITY OF HOUMA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

      DISTRICT OF LOUISIANA. 

        NO. 705.  ARGUED APRIL 24, 1969.-- DECIDED JUNE 16, 1969. 


LOUISIANA LAW PROVIDES THAT ONLY "PROPERTY TAXPAYERS" HAVE THE RIGHT
TO VOTE IN ELECTIONS CALLED TO APPROVE THE ISSUANCE OF REVENUE BONDS BY
A MUNICIPAL UTILITY SYSTEM.  AT A SPECIAL ELECTION A MAJORITY OF THE
PROPERTY TAXPAYERS APPROVED A BOND ISSUE FOR THE CITY OF HOUMA'S
MUNICIPALLY OWNED UTILITY SYSTEMS.  WITHIN THE PERIOD PERMITTED TO
CONTEST THE ELECTION RESULT APPELLANT, A NONPROPERTY TAXPAYER OTHERWISE
QUALIFIED TO VOTE, BROUGHT SUIT FOR HIMSELF AND OTHERS SIMILARLY
SITUATED TO ENJOIN THE ISSUANCE OF THE BONDS AND TO OBTAIN A
DECLARATORY JUDGMENT THAT THE LIMITATION OF THE FRANCHISE TO PROPERTY
TAXPAYERS IS UNCONSTITUTIONAL.  A THREE-JUDGE DISTRICT COURT HELD THE
LIMITATION CONSTITUTIONAL.  HELD: 

1.  THE "PROPERTY TAXPAYER" LIMITATION ON THE FRANCHISE VIOLATES THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  KRAMER V. UNION
FREE SCHOOL DISTRICT NO. 15, ANTE, P. 621. 

(A) WHERE THE STATE GRANTS THE RIGHT TO VOTE IN A LIMITED PURPOSE
ELECTION TO SOME QUALIFIED VOTERS AND DENIES IT TO OTHERS, "THE COURT
MUST DETERMINE WHETHER THE EXCLUSIONS ARE NECESSARY TO PROMOTE A
COMPELLING STATE INTEREST."  KRAMER, SUPRA, AT 627. 

(B) HERE THE BENEFITS AND BURDENS OF THE BOND ISSUE FALL
INDISCRIMINATELY ON PROPERTY OWNER AND NONPROPERTY OWNER ALIKE, AND THE
CLASSIFICATION THUS UNCONSTITUTIONALLY EXCLUDES OTHERWISE QUALIFIED
VOTERS WHO ARE AS SUBSTANTIALLY AFFECTED AND DIRECTLY INTERESTED IN THE
MATTER VOTED ON AS THOSE WHO ARE PERMITTED TO VOTE. 

2.  THIS DECISION WILL HAVE PROSPECTIVE EFFECT, AND WILL APPLY ONLY
WHERE THE TIME FOR CHALLENGING THE ELECTION RESULT HAS NOT EXPIRED, OR
IN CASES BROUGHT WITHIN THE TIME SPECIFIED FOR CHALLENGING THE ELECTION
AND WHICH ARE NOT YET FINAL. 

286 F.SUPP.  823, REVERSED AND REMANDED. 

PER CURIAM. 

IN THIS CASE WE MUST DETERMINE WHETHER PROVISIONS OF LOUISIANA LAW
WHICH GIVE ONLY "PROPERTY TAXPAYERS" THE RIGHT TO VOTE IN ELECTIONS
CALLED TO APPROVE THE ISSUANCE OF REVENUE BONDS BY A MUNICIPAL UTILITY
ARE CONSTITUTIONAL.  THIS CASE THUS PRESENTS AN ISSUE SIMILAR TO THE
ONE CONSIDERED IN KRAMER V. UNION FREE SCHOOL DISTRICT NO. 15, ANTE, P.
621.  WITH ONE JUDGE DISSENTING, A THREE-JUDGE DISTRICT COURT
DETERMINED THAT THE LOUISIANA PROVISIONS WERE CONSTITUTIONAL.  HOWEVER,
AS IN KRAMER, WE FIND THAT THE CHALLENGED PROVISIONS VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT; WE THEREFORE REVERSE. 

THE LOUISIANA CONSTITUTION PROVIDES THAT THE LEGISLATURE MAY
AUTHORIZE MUNICIPALITIES TO ISSUE BONDS "(FOR THE PURPOSE OF
CONSTRUCTING, ACQUIRING, EXTENDING OR IMPROVING ANY REVENUE-PRODUCING
PUBLIC UTILITY."  LA. CONST., ART. 14, SEC. 14(M).  PURSUANT TO THIS
PROVISION, THE LEGISLATURE ENACTED LEGISLATION AUTHORIZING LOUISIANA
MUNICIPALITIES TO ISSUE REVENUE BONDS.  LA. REV. STAT. SEC. 33:4251
(1950).  /1/  THE LEGISLATURE FURTHER PROVIDED, HOWEVER, THAT THE
MUNICIPALITIES COULD ISSUE THE BONDS ONLY IF THEY WERE APPROVED BY A
"MAJORITY IN NUMBER AND AMOUNT OF THE PROPERTY TAXPAYERS QUALIFIED TO
VOTE . . . (WHO VOTE AT THE BOND ELECTION)."  /2/  LA. REV. STAT. SEC.
39:501 (1950).  SEE ALSO LA. REV. STAT. SECS. 33:4258, 39:508 (1950). 

APPELLEE CITY OF HOUMA OWNS AND OPERATES GAS, WATER, AND ELECTRIC
UTILITY SYSTEMS.  IN SEPTEMBER 1967 THE CITY OFFICIALS SCHEDULED A
SPECIAL ELECTION TO OBTAIN VOTER APPROVAL FOR THE ISSUANCE OF
$10,000,000 OF UTILITY REVENUE BONDS.  THE CITY PLANNED TO FINANCE
EXTENSION AND IMPROVEMENT OF THE MUNICIPALLY OWNED UTILITY SYSTEMS WITH
THE BOND PROCEEDS.  AT THE SPECIAL ELECTION A MAJORITY "IN NUMBER AND
AMOUNT" OF THE PROPERTY TAXPAYERS APPROVED THE BOND ISSUE.  HOWEVER,
WITHIN THE PERIOD PROVIDED BY LOUISIANA LAW FOR CONTESTING THE RESULT
OF THE ELECTION, LA. REV. STAT. SEC. 33:4260 (1950), THIS SUIT WAS
INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

APPELLANT ALLEGED THAT HE WAS A DULY QUALIFIED VOTER /3/  OF THE
CITY OF HOUMA, AND THAT HE HAD BEEN PREVENTED FROM VOTING IN THE
REVENUE BOND ELECTION SOLELY BECAUSE HE WAS NOT A PROPERTY OWNER.  HE
SUED FOR HIMSELF AND FOR A CLASS OF 6,926 NONPROPERTY TAXPAYERS
OTHERWISE QUALIFIED AS CITY OF HOUMA VOTERS.  APPELLANT SOUGHT TO
ENJOIN THE ISSUANCE OF THE BONDS APPROVED AT THE SPECIAL ELECTION AND
TO OBTAIN A DECLARATORY JUDGMENT THAT THE LIMITATION OF THE FRANCHISE
TO PROPERTY TAXPAYERS IS UNCONSTITUTIONAL.  A THREE-JUDGE DISTRICT
COURT WAS CONVENED PURSUANT TO 28 U.S.C. 2281, 2284.  THE COURT THEN
DISMISSED THE SUIT, FINDING THE LOUISIANA PROVISIONS CONSTITUTIONAL. 
CIPRIANO V. CITY OF HOUMA, 286 F.SUPP.  823 (D.C.E.D. LA. 1968). 
APPELLANT BROUGHT A DIRECT APPEAL TO THIS COURT, 28 U.S.C. 1253; WE
NOTED PROBABLE JURISDICTION.  393 U.S. 1061 (1969). 

AS WE NOTED IN KRAMER, SUPRA, IF A CHALLENGED STATE STATUTE GRANTS
THE RIGHT TO VOTE IN A LIMITED PURPOSE ELECTION TO SOME OTHERWISE
QUALIFIED VOTERS AND DENIES IT TO OTHERS, /4/  "THE COURT MUST
DETERMINE WHETHER THE EXCLUSIONS ARE NECESSARY TO PROMOTE A COMPELLING
STATE INTEREST."  KRAMER V. UNION FREE SCHOOL DISTRICT NO. 15, SUPRA,
AT 627.  MOREOVER, NO LESS SHOWING THAT THE EXCLUSIONS ARE NECESSARY TO
PROMOTE A COMPELLING STATE INTEREST IS REQUIRED MERELY BECAUSE "THE
QUESTIONS SCHEDULED FOR THE ELECTION NEED NOT HAVE BEEN SUBMITTED TO
THE VOTERS."  ID., AT 629, N. 11. 

THE APPELLEES MAINTAIN THAT PROPERTY OWNERS HAVE A "SPECIAL
PECUNIARY INTEREST" IN THE ELECTION, BECAUSE THE EFFICIENCY OF THE
UTILITY SYSTEM DIRECTLY AFFECTS "PROPERTY AND PROPERTY VALUES" AND THUS
"THE BASIC SECURITY OF THEIR INVESTMENT IN (THEIR) PROPERTY (IS) AT
STAKE."  ASSUMING, ARGUENDO, /5/  THAT A STATE MIGHT IN SOME
CIRCUMSTANCES, CONSTITUTIONALLY LIMIT THE FRANCHISE TO QUALIFIED VOTERS
WHO ARE ALSO "SPECIALLY INTERESTED" IN THE ELECTION, WHETHER THE
STATUTE ALLEGEDLY SO LIMITING THE FRANCHISE DENIES EQUAL PROTECTION OF
THE LAWS TO THOSE OTHERWISE QUALIFIED VOTERS WHO ARE EXCLUDED DEPENDS
ON "WHETHER ALL THOSE EXCLUDED ARE IN FACT SUBSTANTIALLY LESS
INTERESTED OR AFFECTED THAN THOSE THE STATUTE INCLUDES."  ID., AT 632. 

AT THE TIME OF THE ELECTION, ONLY ABOUT 40% OF THE CITY'S REGISTERED
VOTERS WERE PROPERTY TAXPAYERS.  OF COURSE, THE OPERATION OF THE
UTILITY SYSTEMS-- GAS, WATER, AND ELECTRIC-- AFFECTS VIRTUALLY EVERY
RESIDENT OF THE CITY, NONPROPERTY OWNERS AS WELL AS PROPERTY OWNERS. 
ALL USERS PAY UTILITY BILLS, AND THE RATES MAY BE AFFECTED
SUBSTANTIALLY BY THE AMOUNT OF REVENUE BONDS OUTSTANDING.  /6/
CERTAINLY PROPERTY OWNERS ARE NOT ALONE IN FEELING THE IMPACT OF BAD
UTILITY SERVICE OR HIGH RATES, OR IN REAPING THE BENEFITS OF GOOD
SERVICE AND LOW RATES. 

THE REVENUE BONDS ARE TO BE PAID ONLY FROM THE OPERATIONS OF THE
UTILITIES; THEY ARE NOT FINANCED IN ANY WAY BY PROPERTY TAX REVENUE. 
PROPERTY OWNERS, LIKE NONPROPERTY OWNERS, USE THE UTILITIES AND PAY THE
RATES; HOWEVER, THE IMPACT OF THE REVENUE BOND ISSUE ON THEM IS
UNCONNECTED TO THEIR STATUS AS PROPERTY TAXPAYERS.  INDEED, THE
BENEFITS AND BURDENS OF THE BOND ISSUE FALL INDISCRIMINATELY ON
PROPERTY OWNER AND NONPROPERTY OWNER ALIKE. 

MOREOVER, THE PROFITS OF THE UTILITY SYSTEMS' OPERATIONS ARE PAID
INTO THE GENERAL FUND OF THE CITY AND ARE USED TO FINANCE CITY SERVICES
THAT OTHERWISE WOULD BE SUPPORTED BY TAXES.  OF COURSE, PROPERTY
TAXPAYERS MAY BE CONCERNED WITH EXPANDING AND IMPROVING THE CITY'S
UTILITY OPERATIONS; SUCH IMPROVEMENTS COULD PRODUCE REVENUES WHICH
EVENTUALLY WOULD REDUCE THE BURDEN ON THE PROPERTY TAX TO SUPPORT CITY
SERVICES.  ON THE OTHER HAND, NONPROPERTY TAXPAYERS MAY FEEL THAT THEIR
INTERESTS AS RATE PAYERS INDICATE THAT NO FURTHER EXPANSION OF UTILITY
DEBT OBLIGATIONS SHOULD BE MADE.  OF COURSE, THESE DIFFERENCES OF
OPINION CANNOT JUSTIFY EXCLUDING EITHER GROUP FROM THE BOND ELECTION,
WHEN, AS IN THIS CASE, BOTH ARE SUBSTANTIALLY AFFECTED BY THE UTILITY
OPERATIONS.  FOR, AS WE NOTED IN CARRINGTON V. RASH, 380 U.S. 89, 94
(1965), "'(FENCING OUT' FROM THE FRANCHISE A SECTOR OF THE POPULATION
BECAUSE OF THE WAY THEY MAY VOTE IS CONSTITUTIONALLY IMPERMISSIBLE." 

THE CHALLENGED STATUTE CONTAINS A CLASSIFICATION WHICH EXCLUDES
OTHERWISE QUALIFIED VOTERS WHO ARE AS SUBSTANTIALLY AFFECTED AND
DIRECTLY INTERESTED IN THE MATTER VOTED UPON AS ARE THOSE WHO ARE
PERMITTED TO VOTE.  WHEN, AS IN THIS CASE, THE STATE'S SOLE
JUSTIFICATION FOR THE STATUTE IS THAT THE CLASSIFICATION PROVIDES A
"RATIONAL BASIS" FOR LIMITING THE FRANCHISE TO THOSE VOTERS WITH A
"SPECIAL INTEREST," THE STATUTE CLEARLY DOES NOT MEET THE "EXACTING
STANDARD OF PRECISION WE REQUIRE OF STATUTES WHICH SELECTIVELY
DISTRIBUTE THE FRANCHISE."  KRAMER V. UNION FREE SCHOOL DISTRICT NO.
15, SUPRA, AT 632.  WE THEREFORE REVERSE THE JUDGMENT OF THE DISTRICT
COURT. 

SIGNIFICANT HARDSHIPS WOULD BE IMPOSED ON CITIES, BONDHOLDERS, AND
OTHERS CONNECTED WITH MUNICIPAL UTILITIES IF OUR DECISION TODAY WERE
GIVEN FULL RETROACTIVE EFFECT.  WHERE A DECISION OF THIS COURT COULD
PRODUCE SUBSTANTIAL INEQUITABLE RESULTS IF APPLIED RETROACTIVELY, THERE
IS AMPLE BASIS IN OUR CASES FOR AVOIDING THE "INJUSTICE OR HARDSHIP" BY
A HOLDING OF NONRETROACTIVITY.  GREAT NORTHERN R. CO. V. SUNBURST OIL &
REFINING CO., 287 U.S. 358, 364 (1932).  SEE CHICOT COUNTY DRAINAGE
DIST. V. BAXTER STATE BANK, 308 U.S. 371 (1940).  CF. LINKLETTER V.
WALKER, 381 U.S. 618 (1965).  THEREFORE, WE WILL APPLY OUR DECISION IN
THIS CASE PROSPECTIVELY.  THAT IS, WE WILL APPLY IT ONLY WHERE, UNDER
STATE LAW, THE TIME FOR CHALLENGING THE ELECTION RESULT HAS NOT
EXPIRED, OR IN CASES BROUGHT WITHIN THE TIME SPECIFIED BY STATE LAW FOR
CHALLENGING THE ELECTION AND WHICH ARE NOT YET FINAL.  THUS, THE
DECISION WILL NOT APPLY WHERE THE AUTHORIZATION TO ISSUE THE SECURITIES
IS LEGALLY COMPLETE ON THE DATE OF THIS DECISION.  OF COURSE, OUR
DECISION WILL NOT AFFECT THE VALIDITY OF SECURITIES WHICH HAVE BEEN
SOLD OR ISSUED PRIOR TO THIS DECISION AND PURSUANT TO SUCH FINAL
AUTHORIZATION. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED.  THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE AMOUNT OF DEBT A MUNICIPALITY MAY INCUR IS LIMITED BY THE
LOUISIANA CONSTITUTION.  LA. CONST., ART. 14, SEC. 14(F).  THESE
REVENUE BONDS ARE NOT INCLUDED IN COMPUTING THE MUNICIPAL DEBT,
HOWEVER, IF THEY ARE SECURED EXCLUSIVELY BY A MORTGAGE ON THE ASSETS OF
THE UTILITY SYSTEM AND A PLEDGE OF THE SYSTEM REVENUES.  LA. CONST.,
ART. 14, SEC. 14(M). 

/2/  WE WERE INFORMED AT ORAL ARGUMENT THAT "NUMBER AND AMOUNT"
MEANS THE BONDS MUST BE APPROVED BY A MAJORITY OF THE PROPERTY
TAXPAYERS VOTING AND THEIR VOTES MUST ALSO REPRESENT A "MAJORITY OF THE
ASSESSED PROPERTY OWNED BY THOSE TAXPAYERS WHO ARE ACTUALLY VOTING." 

/3/  THE QUALIFICATIONS ARE OF AGE, RESIDENCE, AND REGISTRATION. 
SEE LA. REV. STAT. SEC. 39:508 (1950). 

/4/  APPELLANT DOES NOT CHALLENGE ANY OTHER VOTER QUALIFICATION
REGULATIONS.  THE SOLE ISSUE IN THIS CASE IS THE CONSTITUTIONALITY OF
THE PROVISIONS OF LOUISIANA LAW PERMITTING ONLY PROPERTY TAXPAYERS TO
VOTE IN UTILITY BOND ELECTIONS. 

/5/  AS IN KRAMER V. UNION FREE SCHOOL DISTRICT NO. 15, SUPRA, WE
FIND IT UNNECESSARY TO DECIDE WHETHER A STATE MIGHT, IN SOME
CIRCUMSTANCES, LIMIT THE FRANCHISE TO THOSE "PRIMARILY INTERESTED." 

/6/  FOR EXAMPLE, A PROPOSED DECREASE IN UTILITY RATES MAY BE
FORESTALLED BY THE ISSUANCE OF NEW REVENUE BONDS. 

MR. JUSTICE BLACK AND MR. JUSTICE STEWART CONCUR IN THE JUDGMENT OF
THE COURT.  UNLIKE KRAMER V. UNION FREE SCHOOL DISTRICT NO. 15, ANTE,
P. 621, THIS CASE INVOLVES A VOTING CLASSIFICATION "WHOLLY IRRELEVANT
TO ACHIEVEMENT" OF THE STATE'S OBJECTIVE.  KOTCH V. BOARD OF RIVER PORT
PILOT COMM'RS, 330 U.S. 552, 556. 

MR. JUSTICE HARLAN, WHILE ADHERING TO HIS VIEWS EXPRESSED IN DISSENT
IN REYNOLDS V. SIMS, 377 U.S. 533, 589 (1964); HARPER V. VIRGINIA BOARD
OF ELECTIONS, 383 U.S. 663, 680 (1966); AND AVERY V. MIDLAND COUNTY,
390 U.S. 474, 486 (1968), BUT CONSIDERING HIMSELF BOUND BY THE COURT'S
DECISIONS IN THOSE CASES, CONCURS IN THE RESULT. 

KENNETH WATKINS ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANT. 

EUGENE E. HUPPENBAUER, JR., ARGUED THE CAUSE FOR APPELLEES.  WITH
HIM ON THE BRIEF WAS TED J. BOROWSKI. 

BRIEFS OF AMICI CURIAE WERE FILED BY JACK P. F. GREMILLION, ATTORNEY
GENERAL, AND JOHN V. PARKER FOR THE STATE OF LOUISIANA ET AL., AND BY
IRVING A. JENNINGS, J. A. RIGGINS, JR., AND REX E. LEE FOR THE SALT
RIVER PROJECT AGRICULTURAL IMPROVEMENT & POWER DISTRICT. 
..END :















BANKS V. CALIFORNIA, 395 U.S. 708 


       BANKS V. CALIFORNIA. 

        CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST

           APPELLATE DISTRICT. 

        NO. 670.  ARGUED APRIL 23, 1969.-- DECIDED JUNE 16, 1969. 


CERTIORARI DISMISSED. 

PER CURIAM. 

PETITIONER DID NOT ASK THE SUPREME COURT OF CALIFORNIA TO REVIEW THE
JUDGMENT ENTERED BY THE COURT OF APPEAL IN THIS CASE.  THEREFORE, THE
DECISION OF THE COURT OF APPEAL IS NOT A "(FINAL JUDGMENT . . .
RENDERED BY THE HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE
HAD . . . ."  28 U.S.C. 1257, AND WE LACK JURISDICTION TO REVIEW IT.
THE WRIT OF CERTIORARI IS DISMISSED FOR WANT OF JURISDICTION. 

 IT IS SO ORDERED. 

THOMAS J. KLITGAARD, BY APPOINTMENT OF THE COURT, 393 U.S. 931,
ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

EDWARD P. O'BRIEN, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, ALBERT W. HARRIS, JR., ASSISTANT ATTORNEY GENERAL,
AND LOUISE H. RENNE, DEPUTY ATTORNEY GENERAL. 
..END :





















STANBRIDGE V. NEW YORK, 395 U.S. 709 


       STANBRIDGE V. NEW YORK. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS

           OF NEW YORK. 

        NO. 208, MISC.  DECIDED JUNE 16, 1969. 


CERTIORARI GRANTED; 21 N.Y.2D 706, 794; 234 N.E.2D 698, 235 N.E.2D
456, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED
STATES, 391 U.S. 123. 

WILLIAM CAHN FOR RESPONDENT. 
..END :








BISENIUS V. KARNS, 395 U.S. 709 


       BISENIUS V. KARNS, COMMISSIONER OF MOTOR VEHICLES. 

        APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

      NO. 1357.  DECIDED JUNE 16, 1969. 


42 WIS.2D 42, 165 N.W.2D 377, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

S. A. SCHAPIRO FOR APPELLANT. 

ROBERT W. WARREN, ATTORNEY GENERAL OF WISCONSIN, AND ALBERT HARRIMAN
AND ROBERT D. MARTINSON, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEE. 
..END :










BALISTRIERI V. UNITED STATES, 395 U.S. 710 


       BALISTRIERI V. UNITED STATES. 

        ON PETITION FOR REHEARING. 

        NO. 1070.  DECIDED JUNE 16, 1969. 


REHEARING GRANTED; 394 U.S. 985, VACATED; CERTIORARI GRANTED; 403
F.2D 472; VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR REHEARING IS GRANTED AND THE ORDER DENYING THE
PETITION FOR A WRIT OF CERTIORARI IS VACATED.  THE PETITION FOR A WRIT
OF CERTIORARI IS GRANTED AND THE JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT IS VACATED.  THE CASE IS REMANDED TO
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
FOR FURTHER PROCEEDINGS IN LIGHT OF ALDERMAN V. UNITED STATES, 394 U.S.
165, AND GIORDANO V. UNITED STATES, 394 U.S. 310. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

EDWARD BENNETT WILLIAMS AND HAROLD UNGAR FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :






















SNIADACH V. FAMILY FINANCE CORP., 395 U.S. 337 


       SNIADACH V. FAMILY FINANCE CORP. OF BAY VIEW ET AL.

        CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

        NO. 130.  ARGUED APRIL 21, 1969.-- DECIDED JUNE 9, 1969. 


UNDER WISCONSIN'S GARNISHMENT PROCEDURE THE CLERK OF THE COURT ISSUES
A SUMMONS AT THE REQUEST OF THE CREDITOR'S LAWYER, AND THE LATTER, BY
SERVING THE GARNISHEE (HERE THE EMPLOYER) SETS IN MOTION THE MACHINERY
WHEREBY WAGES (HERE ONE-HALF THOSE DUE THE EMPLOYEE) ARE FROZEN.  THE
CREDITOR HAS 10 DAYS IN WHICH TO SERVE THE SUMMONS AND COMPLAINT ON THE
DEBTOR AFTER SERVICE ON THE GARNISHEE, ALTHOUGH HERE PETITIONER WAS
SERVED THE SAME DAY AS THE EMPLOYER.  THE WAGES MAY BE UNFROZEN IF THE
WAGE EARNER WINS ON THE MERITS IN THE SUIT ON THE DEBT.  PETITIONER
MOVED THAT THE GARNISHMENT PROCEEDINGS BE DISMISSED FOR FAILURE TO MEET
THE FOURTEENTH AMENDMENT'S PROCEDURAL DUE PROCESS REQUIREMENTS, BUT THE
WISCONSIN COURTS APPROVED THE PROCEDURE.  HELD: WISCONSIN'S PREJUDGMENT
GARNISHMENT OF WAGES PROCEDURE, WITH ITS OBVIOUS TAKING OF PROPERTY
WITHOUT NOTICE AND PRIOR HEARING, VIOLATES THE FUNDAMENTAL PRINCIPLES
OF PROCEDURAL DUE PROCESS.  PP. 339-342. 

37 WIS.2D 163, 154 N.W.2D 259, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS INSTITUTED A GARNISHMENT ACTION AGAINST PETITIONER AS
DEFENDANT AND MILLER HARRIS INSTRUMENT CO., HER EMPLOYER, AS
GARNISHEE.  THE COMPLAINT ALLEGED A CLAIM OF $420 ON A PROMISSORY
NOTE.  THE GARNISHEE FILED ITS ANSWER STATED IT HAD WAGES OF $63.18
UNDER ITS CONTROL EARNED BY PETITIONER AND UNPAID, AND THAT IT WOULD
PAY ONE-HALF TO PETITIONER AS A SUBSISTENCE ALLOWANCE /1/  AND HOLD THE
OTHER HALF SUBJECT TO THE ORDER OF THE COURT. 

PETITIONER MOVED THAT THE GARNISHMENT PROCEEDINGS BE DISMISSED FOR
FAILURE TO SATISFY THE DUE PROCESS REQUIREMENTS OF THE FOURTEENTH
AMENDMENT.  THE WISCONSIN SUPREME COURT SUSTAINED THE LOWER STATE COURT
IN APPROVING THE PROCEDURE.  37 WIS.2D 163, 154 N.W.2D 259.  THE CASE
IS HERE ON A PETITION FOR A WRIT OF CERTIORARI.  393 U.S. 1078. 

THE WISCONSIN STATUTE GIVES A PLAINTIFF 10 DAYS IN WHICH TO SERVE
THE SUMMONS AND COMPLAINT ON THE DEFENDANT AFTER SERVICE ON THE
GARNISHEE.  /2/ IN THIS CASE PETITIONER WAS SERVED THE SAME DAY AS THE
GARNISHEE.  SHE NONETHELESS CLAIMS THAT THE WISCONSIN GARNISHMENT
PROCEDURE VIOLATES THAT DUE PROCESS REQUIRED BY THE FOURTEENTH
AMENDMENT, IN THAT NOTICE AND AN OPPORTUNITY TO BE HEARD ARE NOT GIVEN
BEFORE THE IN REM SEIZURE OF THE WAGES.  WHAT HAPPENS IN WISCONSIN IS
THAT THE CLERK OF THE COURT ISSUES THE SUMMONS AT THE REQUEST OF THE
CREDITOR'S LAWYER; AND IT IS THE LATTER WHO BY SERVING THE GARNISHEE
SETS IN MOTION THE MACHINERY WHEREBY THE WAGES ARE FROZEN.  /3/  THEY
MAY, IT IS TRUE, BE UNFROZEN IF THE TRIAL OF THE MAIN SUIT IS EVER HAD
AND THE WAGE EARNER WINS ON THE MERITS.  BUT IN THE INTERIM THE WAGE
EARNER IS DEPRIVED OF HIS ENJOYMENT OF EARNED WAGES WITHOUT ANY
OPPORTUNITY TO BE HEARD AND TO TENDER ANY DEFENSE HE MAY HAVE, WHETHER
IT BE FRAUD OR OTHERWISE. 

SUCH SUMMARY PROCEDURE MAY WELL MEET THE REQUIREMENTS OF DUE PROCESS
IN EXTRAORDINARY SITUATIONS.  CF. FAHEY V. MALLONEE, 332 U.S. 245, 253
254; EWING V. MYTINGER & CASSELBERRY, INC., 339 U.S. 594, 598-600;
OWNBEY V. MORGAN, 256 U.S. 94, 110-112; COFFIN BROS. V. BENNETT, 277
U.S. 29, 31.  BUT IN THE PRESENT CASE NO SITUATION REQUIRING SPECIAL
PROTECTION TO A STATE OR CREDITOR INTEREST IN PRESENTED BY THE FACTS;
NOR IS THE WISCONSIN STATUTE NARROWLY DRAWN TO MEET ANY SUCH UNUSUAL
CONDITION.  PETITIONER WAS A RESIDENT OF THIS WISCONSIN COMMUNITY AND
IN PERSONAM JURISDICTION WAS READILY OBTAINABLE. 

THE QUESTION IS NOT WHETHER THE WISCONSIN LAW IS A WISE LAW OR
UNWISE LAW.  OUR CONCERN IS NOT WHAT PHILOSOPHY WISCONSIN SHOULD OR
SHOULD NOT EMBRACE.  SEE GREEN V. FRAZIER, 253 U.S. 233.  WE SO NOT SIT
AS A SUPER-LEGISLATIVE BODY.  IN THIS CASE THE SOLE QUESTION IS WHETHER
THERE HAS BEEN A TAKING OF PROPERTY WITHOUT THAT PROCEDURAL DUE PROCESS
THAT IS REQUIRED BY THE FOURTEENTH AMENDMENT.  WE HAVE DEALT OVER AND
OVER AGAIN WITH THE QUESTION OF WHAT CONSTITUTES "THE RIGHT TO BE
HEARD" (SCHROEDER V. NEW YORK, 371 U.S. 208, 212) WITHIN THE MEANING OF
PROCEDURAL DUE PROCESS.  SEE MULLANE V. CENTRAL HANOVER TRUST CO., 339
U.S. 306, 314.  IN THE LATTER CASE WE SAID THAT THE RIGHT TO BE HEARD
"HAS LITTLE REALITY OR WORTH UNLESS ONE IS INFORMED THAT THE MATTER IS
PENDING AND CAN CHOOSE FOR HIMSELF WHETHER TO APPEAR OR DEFAULT,
ACQUIESCE OR CONTEST."  IN THE CONTEXT OF THIS CASE THE QUESTION IS
WHETHER THE INTERIM FREEZING OF THE WAGES WITHOUT A CHANCE TO BE HEARD
VIOLATES PROCEDURAL DUE PROCESS. 

A PROCEDURAL RULE THAT MAY SATISFY DUE PROCESS FOR ATTACHMENTS IN
GENERAL, SEE MCKAY V. MCINNES, 279 U.S. 820, DOES NOT NECESSARILY
SATISFY PROCEDURAL DUE PROCESS IN EVERY CASE.  THE FACT THAT A
PROCEDURE WOULD PASS MUSTER UNDER A FEUDAL REGIME DOES NOT MEAN IT
GIVES NECESSARY PROTECTION TO ALL PROPERTY IN ITS MODERN FORMS.  WE
DEAL HERE WITH WAGES-- A SPECIALIZED TYPE OF PROPERTY PRESENTING
DISTINCT PROBLEMS IN OUR ECONOMIC SYSTEM.  WE TURN THEN TO THE NATURE
OF THAT PROPERTY AND PROBLEMS OF PROCEDURAL DUE PROCESS. 

A PREJUDGMENT GARNISHMENT OF THE WISCONSIN TYPE IS A TAKING WHICH
MAY IMPOSE TREMENDOUS HARDSHIP ON WAGE EARNERS WITH FAMILIES TO
SUPPORT.  UNTIL A RECENT ACT OF CONGRESS, /4/  SEC. 304 OF WHICH
FORBIDS DISCHARGE OF EMPLOYEES ON THE GROUND THAT THEIR WAGES HAVE BEEN
GARNISHED, GARNISHMENT OFTEN MEANT THE LOSS OF A JOB.  OVER AND BEYOND
THAT WAS THE GREAT DRAIN ON FAMILY INCOME.  AS STATED BY CONGRESSMAN
REUSS:  /5/ 

     "THE IDEA OF WAGE GARNISHMENT IN ADVANCE OF JUDGMENT, OF

  TRUSTEE PROCESS, OF WAGE ATTACHMENT, OR WHATEVER IT IS CALLED IS

  A MOST INHUMAN DOCTRINE.  IT COMPELS THE WAGE EARNER, TRYING TO

  KEEP HIS FAMILY TOGETHER, TO BE DRIVEN BELOW THE POVERTY LEVEL." 

RECENT INVESTIGATIONS OF THE PROBLEM HAVE DISCLOSED THE GRAVE
INJUSTICES MADE POSSIBLE BY PREJUDGMENT GARNISHMENT WHEREBY THE SOLE
OPPORTUNITY TO BE HEARD COMES AFTER THE TAKING.  CONGRESSMAN SULLIVAN,
CHAIRMAN OF THE HOUSE SUBCOMMITTEE ON CONSUMER AFFAIRS WHO HELD
EXTENSIVE HEARINGS ON THIS AND RELATED PROBLEMS STATED: 

"WHAT WE KNOW FROM OUR STUDY OF THIS PROBLEM IS THAT IN A VAST
NUMBER OF CASES THE DEBT IS A FRAUDULENT ONE, SADDLED ON A POOR
IGNORANT PERSON WHO IS TRAPPED IN AN EASY CREDIT NIGHTMARE, IN WHICH HE
IS CHARGED DOUBLE FOR SOMETHING HE COULD NOT PAY FOR EVEN IF THE PROPER
PRICE WAS CALLED FOR, AND THEN HOUNDED INTO GIVING UP HIS POUND OF
FLESH, AND BEING FIRED BESIDES."  114 CONG.REC.  1832. 

THE LEVERAGE OF THE CREDITOR ON THE WAGE EARNER IS ENORMOUS.  THE
CREDITOR TENDERS NOT ONLY THE ORIGINAL DEBT BUT THE "COLLECTION FEES"
INCURRED BY HIS ATTORNEYS IN THE GARNISHMENT PROCEEDINGS: 

     "THE DEBTOR WHOSE WAGES ARE TIED UP BY A WRIT OF GARNISHMENT,

  AND WHO IS USUALLY IN NEED OF MONEY, IS IN NO POSITION TO RESIST

  DEMANDS FOR COLLECTION FEES.  IF THE DEBT IS SMALL, THE DEBTOR

  WILL BE UNDER CONSIDERABLE PRESSURE TO PAY THE DEBT AND

  COLLECTION CHARGES IN ORDER TO GET HIS WAGES BACK.  IF THE DEBT

  IS LARGE, HE WILL OFTEN SIGN A NEW CONTRACT OF 'PAYMENT SCHEDULE'

WHICH INCORPORATES THESE ADDITIONAL CHARGES."  /6/ 

APART FROM THOSE COLLATERAL CONSEQUENCES, IT APPEARS THAT IN
WISCONSIN THE STATUTORY EXEMPTION GRANTED THE WAGE EARNER /7/  IS
"GENERALLY INSUFFICIENT TO SUPPORT THE DEBTOR FOR ANY ONE WEEK." 

THE RESULT IS THAT A PREJUDGMENT GARNISHMENT OF THE WISCONSIN TYPE
MAY AS A PRACTICAL MATTER DRIVE A WAGE-EARNING FAMILY TO THE WALL.  /9/
WHERE THE TAKING OF ONE'S PROPERTY IS SO OBVIOUS, IT NEEDS NO EXTENDED
ARGUMENT TO CONCLUDE THAT ABSENT NOTICE AND A PRIOR HEARING (CF. COE V.
ARMOUR FERTILIZER WORKS, 237 U.S. 413, 423) THIS PREJUDGMENT
GARNISHMENT PROCEDURE VIOLATES THE FUNDAMENTAL PRINCIPLES OF DUE
PROCESS. 

              REVERSED. 

WIS. STAT. SEC. 267.18(2)(A) PROVIDES: 

"WHEN WAGES OR SALARY ARE THE SUBJECT OF GARNISHMENT ACTION, THE
GARNISHEE SHALL PAY OVER TO THE PRINCIPAL DEFENDANT ON THE DATE WHEN
SUCH WAGES OR SALARY WOULD NORMALLY BE PAYABLE A SUBSISTENCE ALLOWANCE,
OUT OF THE WAGES OR SALARY THEN OWING, IN THE SUM OF $25 IN THE CASE OF
AN INDIVIDUAL WITHOUT DEPENDENTS OR $40 IN THE CASE OF AN INDIVIDUAL
WITH DEPENDENTS; BUT IN NO EVENT IN EXCESS OF 50 PER CENT OF THE WAGES
OR SALARY OWING.  SAID SUBSISTENCE ALLOWANCE SHALL BE APPLIED TO THE
FIRST WAGES OR SALARY EARNED IN THE PERIOD SUBJECT TO SAID GARNISHMENT
ACTION." 

/2/  WIS. STAT. SEC. 267.07(1). 

/3/  WIS. STAT. SEC. 267.04(1). 

/4/  82 STAT. 146, ACT OF MAY 29, 1968. 

/5/  114 CONG.REC.  1832. 

/6/  COMMENT, WAGE GARNISHMENT IN WASHINGTON-- AN EMPIRICAL STUDY,
43 WASH.L.REV.  743, 753 (1968).  AND SEE COMMENT, WAGE GARNISHMENT AS
A COLLECTION DEVICE, 1967 WIS.L.REV.  759. 

/7/  SEE N. 1, SUPRA. 

/8/  COMMENT, WAGE GARNISHMENT AS A COLLECTION DEVICE, 1967
WIS.L.REV.  759, 767. 

/9/  "FOR A POOR MAN-- AND WHOEVER HEARD OF THE WAGE OF THE AFFLUENT
BEING ATTACHED?-- TO LOSE PART OF HIS SALARY OFTEN MEANS HIS FAMILY
WILL GO WITHOUT THE ESSENTIALS.  NO MAN SITS BY WHILE HIS FAMILY GOES
HUNGRY OR WITHOUT HEAT.  HE EITHER FILES FOR CONSUMER BANKRUPTCY AND
TRIES TO BEGIN AGAIN, OR JUST QUITS HIS JOB AND GOES ON RELIEF.  WHERE
IS THE EQUITY, THE COMMON SENSE, IN SUCH A PROCESS?"  CONGRESSMAN
GONZALES, 114 CONG.REC.  1833.  FOR THE IMPACT OF GARNISHMENT ON
PERSONAL BANKRUPTCIES SEE H.R. REP. NO. 1040, 90TH CONG., 1ST SESS., 20
21. 

MR. JUSTICE HARLAN, CONCURRING. 

PARTICULARLY IN LIGHT OF MY BROTHER BLACK'S DISSENT, I THINK IT NOT
AMISS FOR ME TO MAKE EXPLICIT THE PRECISE BASIS ON WHICH I JOIN THE
COURT'S OPINION.  THE "PROPERTY" OF WHICH PETITIONER HAS BEEN DEPRIVED
IS THE USE OF THE GARNISHED PORTION OF HER WAGES DURING THE INTERIM
PERIOD BETWEEN THE GARNISHMENT AND THE CULMINATION OF THE MAIN SUIT. 
SINCE THIS DEPRIVATION CANNOT BE CHARACTERIZED AS DE MINIMIS, SHE MUST
BE ACCORDED THE USUAL REQUISITES OF PROCEDURAL DUE PROCESS:  NOTICE AND
A PRIOR HEARING. 

THE REJOINDER WHICH THIS STATEMENT OF POSITION HAS DRAWN FROM MY
BROTHER BLACK PROMPTS AN ADDITIONAL WORD.  HIS AND MY DIVERGENCE IN
THIS CASE RESTS, I THINK, UPON A BASIC DIFFERENCE OVER WHETHER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT LIMITS STATE ACTION BY NORMS
OF "FUNDAMENTAL FAIRNESS" WHOSE CONTENT IN ANY GIVEN INSTANCE IS TO BE
JUDICIALLY DERIVED NOT ALONE, AS MY COLLEAGUE BELIEVES IT SHOULD BE,
FROM THE SPECIFICS OF THE CONSTITUTION, BUT ALSO, AS I BELIEVE, FROM
CONCEPTS WHICH ARE PART OF THE ANGLO-AMERICAN LEGAL HERITAGE-- NOT, AS
MY BROTHER BLACK CONTINUES TO INSISTS, FROM THE MERE PREDILECTIONS OF
INDIVIDUAL JUDGES. 

FROM MY STANDPOINT, I DO NOT CONSIDER THAT THE REQUIREMENTS OF
"NOTICE" AND "HEARING" ARE SATISFIED BY THE FACT THAT THE PETITIONER
WAS ADVISED OF THE GARNISHMENT SIMULTANEOUSLY WITH THE GARNISHEE, OR BY
THE FACT THAT SHE WILL NOT PERMANENTLY LOSE THE GARNISHED PROPERTY
UNTIL AFTER A PLENARY ADVERSE ADJUDICATION OF THE UNDERLYING CLAIM
AGAINST HER, OR BY THE FACT THAT RELIEF FROM THE GARNISHMENT MAY HAVE
BEEN AVAILABLE IN THE INTERIM UNDER LESS THAN CLEAR CIRCUMSTANCES. 
COMPARE THE MAJORITY AND DISSENTING OPINIONS IN THE WISCONSIN SUPREME
COURT, 37 WIS.2D 163, 178, 154 N.W.2D 259, 267 (1967).  APART FROM
SPECIAL SITUATIONS, SOME OF WHICH ARE REFERRED TO IN THIS COURT'S
OPINION, SEE ANTE, AT 339, I THINK THAT DUE PROCESS IS AFFORDED ONLY BY
THE KINDS OF "NOTICE" AND "HEARING" WHICH ARE AIMED AT ESTABLISHING THE
VALIDITY, OR AT LEAST THE PROBABLE VALIDITY, OF THE UNDERLYING CLAIM
AGAINST THE ALLEGED DEBTOR BEFORE HE CAN BE DEPRIVED OF HIS PROPERTY OR
ITS UNRESTRICTED USE.  I THINK THIS IS THE THRUST OF THE PAST CASES IN
THIS COURT.  SEE, E.G., MULLANE V. CENTRAL HANOVER TRUST CO., 339 U.S.
306, 313 (1950); OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126, 152
153 (1941); UNITED STATES V. ILLINOIS CENT. R. CO., 291 U.S. 457, 463
(1934); LONDONER V. CITY & COUNTY OF DENVER, 210 U.S. 373, 385-386
(1908).  /1/  AND I AM QUITE UNWILLING TO TAKE THE UNEXPLICATED PER
CURIAM IN MCKAY V. MCINNES, 279 U.S. 820 (1929), AS VITIATING OR
DILUTING THESE ESSENTIAL ELEMENTS OF DUE PROCESS.  DFN THERE ARE OTHER
DECISIONS TO THE EFFECT THAT ONE MAY BE DEPRIVED OF 

/1/  THERE ARE OTHER DECISIONS TO THE EFFECT THAT ONE MAY BE
DEPRIVED OF PROPERTY BY SUMMARY ADMINISTRATIVE ACTION TAKEN BEFORE
HEARING WHEN SUCH ACTION IS ESSENTIAL TO PROTECT A VITAL GOVERNMENTAL
INTEREST.  SEE, E.G., EWING V. MYTINGER & CASSELBERRY, INC., 339 U.S.
594 (1950); FAHEY V. MALLONEE, 332 U.S. 245 (1947); BOWLES V.
WILLINGHAM, 321 U.S. 503 (1944); NORTH AMER.  COLD STORAGE CO. V. CITY
OF CHICAGO, 211 U.S. 306 (1908).  HOWEVER, NO SUCH JUSTIFICATION HAS
BEEN ADVANCED IN BEHALF OF WISCONSIN'S GARNISHMENT LAW. 

MR. JUSTICE BLACK, DISSENTING. 

THE COURT HERE HOLDS UNCONSTITUTIONAL A WISCONSIN STATUTE PERMITTING
GARNISHMENT BEFORE A JUDGMENT HAS BEEN OBTAINED AGAINST THE PRINCIPAL
DEBTOR.  THE LAW, HOWEVER, REQUIRES THAT NOTICE BE GIVEN TO THE
PRINCIPAL DEBTOR AND AUTHORIZES HIM TO PRESENT ALL OF HIS LEGAL
DEFENSES AT THE REGULAR HEARING AND TRIAL OF THE CASE.  THE WISCONSIN
LAW IS SAID TO VIOLATE THE "FUNDAMENTAL PRINCIPLES OF DUE PROCESS."  OF
COURSE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT CONTAINS NO
WORDS THAT INDICATE THAT THIS COURT HAS POWER TO PLAY SO FAST AND LOOSE
WITH STATE LAWS.  THE ARGUMENTS THE COURT MAKES TO REACH WHAT I
CONSIDER TO BE ITS UNCONSTITUTIONAL CONCLUSION, HOWEVER, SHOW WHY IT
STRIKES DOWN THIS STATE LAW.  IT IS BECAUSE IT CONSIDERS A GARNISHMENT
LAW OF THIS KIND TO BE BAD STATE POLICY, A JUDGMENT I THINK THE STATE
LEGISLATURE, NOT THIS COURT, HAS POWER TO MAKE.  THE COURT SHOWS IT
BELIEVES THE GARNISHMENT POLICY TO BE A "'MOST INHUMAS DOCRINE'"; THAT
IT "'COMPELS THE WAGE EARNER, TRYING TO KEEP HIS FAMILY TOGETHER, TO BE
DRIVEN BELOW THE POVERTY LEVEL'"; THAT "'IN A VAST NUMBER OF CASES THE
DEBT IS A FRAUDULENT ONE, SADDLED ON A POOR IGNORANT PERSON WHO IS
TRAPPED IN AN EASY CREDIT NIGHTMARE, IN WHICH HE IS CHARGED DOUBLE FOR
SOMETHING HE COULD NOT PAY FOR EVEN IF THE PROPER PRICE WAS CALLED FOR,
AND THEN HOUNDED INTO GIVING UP HIS POUND OF FLESH, AND BEING FIRE
BESIDES.'" 

THE FOREGOING EMOTIONAL RHETORIC MIGHT BE VERY APPROPRIATE FOR
CONGRESSMEN TO MAKE AGAINST SOME PHASES OF GARNISHMENT LAWS.  INDEED,
THE QUOTED STATEMENTS WERE MADE BY CONGRESSMEN DURING A DEBATE OVER A
PROPOSED FEDERAL GARNISHMENT LAW.  THE ARGUMENTS WOULD ALSO BE
APPROPRIATE FOR WISCONSIN'S LEGISLATORS TO MAKE AGAINST THAT STATE'S
GARNISHMENT LAWS.  BUT MADE IN A COURT OPINION, HOLDING WISCONSIN'S LAW
UNCONSTITUTIONAL, THEY AMOUNT TO WHAT I BELIEVE TO BE A PLAIN, JUDICIAL
USURPATION OF STATE LEGISLATIVE POWER TO DECIDE WHAT THE STATE'S LAWS
SHALL BE.  THERE IS NOT ONE WORD IN OUR FEDERAL CONSTITUTION OR IN ANY
OF ITS AMENDMENTS AND NOT A WORD IN THE REPORTS OF THAT DOCUMENT'S
PASSAGE FROM WHICH ONE CAN DRAW THE SLIGHTEST INFERENCE THAT WE HAVE
AUTHORITY THUS TO TRY TO SUPPLEMENT OR STRIKE DOWN THE STATE'S
SELECTION OF ITS OWN POLICIES.  THE WISCONSIN LAW IS SIMPLY NULLIFIED
BY THIS COURT AS THOUGH THE COURT HAD BEEN GRANTED A SUPER-LEGISLATIVE
POWER TO STEP IN AND FRUSTRATE POLICIES OF STATES ADOPTED BY THEIR OWN
ELECTED LEGISLATURES.  THE COURT THUS STEPS BACK INTO THE DUE PROCESS
PHILOSOPHY WHICH BROUGHT ON PRESIDENT ROOSEVELT'S COURT FIGHT. 
ARGUMENTS CAN BE MADE FOR OUTLAWING LOAN SHARKS AND INSTALLMENT SALES
COMPANIES BUT SUCH DECISION, I THINK, SHOULD BE MADE BY STATE AND
FEDERAL LEGISLATORS, AND NOT BY THIS COURT. 

THIS BRINGS ME TO THE SHORT CONCURRING OPINION OF MY BROTHER HARLAN,
WHICH MAKES "EXPLICIT THE PRECISE BASIS" ON WHICH HE JOINS THE COURT'S
OPINION.  THAT BASIS IS: 

"THE 'PROPERTY' OF WHICH PETITIONER HAS BEEN DEPRIVED IS THE USE OF
THE GARNISHED PORTION OF HER WAGES DURING THE INTERIM PERIOD BETWEEN
THE GARNISHMENT AND THE CULMINATION OF THE MAIN SUIT.  SINCE THIS
DEPRIVATION CANNOT BE CHARACTERIZED AS DE MINIMIS, SHE MUST BE ACCORDED
THE USUAL REQUISITES OF PROCEDURAL DUE PROCESS:  NOTICE AND A PRIOR
HEARING."  EVERY ARGUMENT IMPLICIT IN THIS SUMMARY STATEMENT OF MY
BROTHER HARLAN'S VIEWS HAS BEEN, IN MY JUDGMENT, SATISFACTORILY
ANSWERED IN THE OPINION OF THE SUPREME COURT OF WISCONSIN IN THIS CASE-
AN OUTSTANDING OPINION ON CONSTITUTIONAL LAW.  37 WIS.2D 163, 154
N.W.2D 259.  THAT OPINION SHOWS THAT PETITIONER WAS NOT REQUIRED TO
WAIT UNTIL THE "CULMINATION OF THE MAIN SUIT," THAT IS, THE SUIT
BETWEEN THE CREDITOR AND THE PETITIONER.  IN FACT THE CASE NOW BEFORE
US WAS NOT A FINAL DETERMINATION OF THE MERITS OF THAT CONTROVERSY BUT
WAS, IN ACCORDANCE WITH WELL-ESTABLISHED STATE COURT PROCEDURE, THE
RESULT OF A MOTION MADE BY THE PETITIONER TO DISMISS THE GARNISHMENT
PROCEEDINGS.  WITH REFERENCE TO MY BROTHER HARLAN'S STATEMENT THAT
PETITIONER'S DEPRIVATION COULD NOT BE CHARACTERIZED AS DE MINIMIS, IT
IS PERTINENT TO NOTE THAT THE GARNISHMENT WAS SERVED ON HER AND HER
EMPLOYER ON THE SAME DAY, NOVEMBER 21, 1966; THAT SHE, WITHOUT WAITING
FOR A TRIAL ON THE MERITS, FILED A MOTION TO DISMISS THE GARNISHMENT ON
DECEMBER 23, 1966, WHICH MOTION WAS DENIED BY THE CIRCUIT COURT ON
APRIL 18, 1967; AND THAT IT IS THAT JUDGMENT WHICH IS BEFORE US TODAY. 
THE AMOUNT OF HER WAGES HELD UP BY THE GARNISHMENT WAS $31.59.  THE
AMOUNT OF INTEREST ON THE WAGES WITHHELD EVEN IF COMPUTED AT 10%
ANNUALLY WOULD HAVE BEEN ABOUT $3.  WHETHER THAT WOULD BE CLASSIFIED AS
DE MINIMIS I DO NOT KNOW AND IN FACT IT IS NOT MATERIAL TO KNOW FOR THE
DECISION OF THIS CASE. 

IN THE MOTION TO DISMISS, PETITIONER, ACCORDING TO THE SUPREME COURT
OF WISCONSIN, ASSERTED A "NUMBER OF GROUNDS BASED ON INJUSTICES AND
DEPRIVATIONS WHICH HAVE BEEN, OR ARE LIKELY TO BE, SUFFERED BY OTHERS,
BUT WHICH SHE HAS NOT PERSONALLY EXPERIENCED."  37 WIS.2D 163, 166, 154
N.W.2D 259, 261.  THE COURT WENT FURTHER AND POINTED OUT THAT UNDER
WISCONSIN LAW THE COURT WOULD NOT STRIKE DOWN A LAW AS UNCONSTITUTIONAL
ON THE GROUND THAT SOME PERSON OTHER THAN THE CHALLENGER OF THAT LAW
MIGHT IN THE FUTURE BY INJURED BY ITS UNCONSTITUTIONAL PART.  IT WOULD
SEE, THEREFORE, THAT THE GREAT NUMBER OF OUR CASES HOLDING THAT WE DO
NOT DETERMINE THE CONSTITUTIONALITY OF STATE STATUTES WHERE THE
JUDGMENT ON THEM WAS BASED ON STATE LAW WOULD PREVENT OUR PASSING ON
THIS CASE AT ALL. 

THE INDEBTEDNESS OF PETITIONER WAS EVIDENCED BY A PROMISSORY NOTE,
BUT PETITIONER'S AFFIDAVIT IN SUPPORT OF THE MOTION TO DISMISS,
ACCORDING TO THE WISCONSIN SUPREME COURT CONTAINED NO ALLEGATION THAT
SHE IS NOT INDEBTED THEREON TO THE PLAINTIFF.  OF COURSE IF IT HAD
ALLEGED THAT, OR IF IT HAD SHOWN IN SOME OTHER WAY THAT THIS WAS NOT A
GOOD-FAITH LAWSUIT AGAINST HER, THE WISCONSIN OPINION SHOWS THAT THIS
COULD HAVE DISPOSED OF THE WHOLE CASE ON THE SUMMARY MOTION. 

ANOTHER GROUND OF UNCONSTITUTIONALITY, ACCORDING TO THE STATE COURT,
WAS THAT THE ACT PERMITTED A DEFENDANT TO POST A BOND AND SECURE THE
RELEASE OF GARNISHED PROPERTY AND THAT THIS PROVISION DENIED EQUAL
PROTECTION OF THE LAW "TO PERSONS OF LOW INCOME."  WITH REFERENCE TO
THIS GROUND, THE WISCONSIN COURT SAID: 

"APPELLANT HAS MADE NO SHOWING THAT SHE IS A PERSON OF LOW INCOME
AND UNABLE TO POST A BOND."  37 WIS.2D,AT 167, 154 N.W.2D,AT 261. 

ANOTHER GROUND OF UNCONSTITUTIONALITY URGED WAS THAT SINCE MANY
EMPLOYERS DISCHARGE GARNISHED EMPLOYEES FOR BEING UNRELIABLE, THE LAW
THREATENED THE GAINFUL EMPLOYMENT OF MANY WAGE EARNERS.  THIS
CONTENTION THE SUPREME COURT OF WISCONSIN SATISFACTORILY ANSWERED BY
SAYING THAT PETITIONER HAD "MADE NO SHOWING THAT HER OWN EMPLOYER
REACTED IN THIS MANNER." 

ANOTHER GROUND CHALLENGING THE STATE ACT WAS THAT IT AFFORDS 10
DAYS' TIME TO A PLAINTIFF TO SERVE THE GARNISHEE SUMMONS AND COMPLAINT
ON THE DEFENDANT AFTER SERVICE OF THE SUMMONS ON THE GARNISHEE.  THIS,
OF COURSE, SHE COULD NOT RAISE.  THE WISCONSIN SUPREME COURT'S ANSWER
TO THIS WAS THAT PETITIONER WAS SERVED ON THE SAME DAY AS THE
GARNISHEE. 

THE STATE COURT THEN POINTED OUT THAT THE GARNISHMENT PROCEEDINGS
DID NOT INVOLVE "ANY FINAL DETERMINATION OF THE TITLE TO A DEFENDANT'S
PROPERTY, BUT MERELY PRESERVED) THE STATUS QUO THEREOF PENDING
DETERMINATION OF THE PRINCIPAL ACTION."  37 WIS.2D,AT 169, 154
N.W.2D,AT 262.  THE COURT THEN RELIED ON MCINNES V. MCKAY, 127 ME. 110,
141 A. 699.  THAT SUIT RELATED TO A MAINE ATTACHMENT LAW WHICH, OF
COURSE, IS GOVERNED BY THE SAME RULE AS GARNISHMENT LAW.  SEE
"GARNISHMENT," BOUVIER'S LAW DICTIONARY; SEE ALSO PENNOYER V. NEFF, 95
U.S. 714.  THE MAINE LAW WAS SUBJECTED TO PRACTICALLY THE SAME
CHALLENGES THAT BROTHER HARLAN AND THE COURT RAISE AGAINST THIS
WISCONSIN LAW.  ABOUT THAT LAW THE SUPREME COURT OF MAINE SAID: 

     "BUT, ALTHOUGH AN ATTACHMENT MAY, WITHIN THE BROAD MEANING OF

  THE PRECEDING DEFINITION, DEPRIVE ONE OF PROPERTY, YET

  CONDITIONAL AND TEMPORARY AS IT IS, AND PART OF THE LEGEL REMEDY

  AND PROCEDURE BY WHICH THE PROPERTY OF A DEBTOR MAY BE TAKEN IN

  SATISFACTION OF THE DEBT, IF JUDGMENT BE RECOVERED, WE DO NOT

  THINK IT IS THE DEPRIVATION OF PROPERTY CONTEMPLATED BY THE

  CONSTITUTION.  AND IF IT BE, IT IS NOT A DEPRIVATION WITHOUT 'DUE

  PROCESS OF LAW' FOR IT IS A PART OF A PROCESS, WHICH DURING ITS

PROCEEDING GIVES NOTICE AND OPPORTUNITY FOR HEARING AND JUDGMENT

  OF SOME JUDICIAL OR OTHER AUTHORIZED TRIBUNAL.  THE REQUIREMENTS

  OF 'DUE PROCESS OF LAW' AND 'LAW OF THE LAND' ARE SATISFIED." 

  127 ME. 110, 116, 141 A. 699, 702-703. 

THIS COURT DID NOT EVEN CONSIDER THE CHALLENGE TO THE MAINE LAW WORTHY
OF A COURT OPINION BUT AFFIRMED IT IN A PER CURIAM OPINION, 279 U.S.
820, ON THE AUTHORITY OF TWO PRIOR DECISIONS OF THIS COURT.  SEE ALSO
STANDARD OIL CO. V. SUPERIOR COURT OF NEW CASTLE COUNTY, 44 DEL. 538,
62 A.2D 454, APPEAL DISMISSED, 336 U.S. 930; HARRIS V. BALK, 198 U.S.
215, 222, 227-228. 

THE SUPREME COURT OF WISCONSIN, IN UPHOLDING THE CONSTITUTIONALITY
OF ITS LAW ALSO CITED THE FOLLOWING STATEMENT OF OUR COURT MADE IN
ROTHSCHILD V. KNIGHT, 184 U.S. 334, 341: 

     "TO WHAT ACTIONS THE REMEDY OF ATTACHMENT MAY BE GIVEN IS FOR

  THE LEGISLATURE OF A STATE TO DETERMINE AND ITS COURTS TO

  DECIDE.  . . . "

ACCORD, HURON HOLDING CORP. V. LINCOLN MINE OPERATING CO., 312 U.S.
183, 193. 

THE SUPREME COURT OF WISCONSIN PROPERLY POINTED OUT: 

     "THE ABILITY TO PLACE A LIEN UPON A MAN'S PROPERTY, SUCH AS TO

  TEMPORARILY DEPRIVE HIM OF ITS BENEFICIAL USE, WITHOUT ANY

  JUDICIAL DETERMINATION OF PROBABLE CAUSE DATES BACK NOT ONLY TO

MEDIEVAL ENGLAND BUT ALSO TO ROMAN TIMES."  37 WIS.2D,AT 171, 154

  N.W.2D,AT 264. 

THE STATE SUPREME COURT THEN WENT ON TO POINT OUT A STATEMENT MADE
BY MR. JUSTICE HOLMES IN JACKMAN V. ROSENBAUM CO., 260 U.S. 22, 31: 

     "THE FOURTEENTH AMENDMENT, ITSELF A HISTORICAL PRODUCT, DID
NOT

  DESTROY HISTORY FOR THE STATES AND SUBSTITUTE MECHANICAL

  COMPARTMENTS OF LAW ALL EXACTLY ALIKE.  IF A THING HAS BEEN

PRACTICED FOR TWO HUNDRED YEARS BY COMMON CONSENT, IT WILL NEED A

  STRONG CASE FOR THE FOURTEENTH AMENDMENT TO AFFECT IT AS WELL

  ILLUSTRATED BY OWNBEY V. MORGAN, 256 U.S. 94, 104, 112." 

THE OWNBEY CASE, WHICH WAS ONE OF THE TWO CITED BY THIS COURT IN ITS
PER CURIAM AFFIRMANCE OF MCINNES V. MCKAY, SUPRA, SUSTAINED THE
CONSTITUTIONALITY OF A DELAWARE ATTACHMENT LAW.  AND SEE BYRD V.
RECTOR, 112 W.VA. 192, 163 S.E. 845. 

I CAN ONLY CONCLUDE THAT THE COURT IS TODAY OVERRULING A NUMBER OF
ITS OWN DECISIONS AND ABANDONING THE LEGAL CUSTOMS AND PRACTICES IN
THIS COUNTRY WITH REFERENCE TO ATTACHMENTS AND GARNISHMENTS WHOLLY ON
THE GROUND THAT THE GARNISHMENT LAWS OF THIS KIND ARE BASED ON UNWISE
POLICIES OF GOVERNMENT WHICH MIGHT SOME TIME IN THE FUTURE DO INJURY TO
SOME INDIVIDUALS.  IN THE FIRST SENTENCE OF THE ARGUMENT IN HER BRIEF,
PETITIONER URGES THAT THIS WISCONSIN LAW "IS CONTRARY TO PUBLIC
POLICY"; THE COURT APPARENTLY FINDS THAT A SUFFICIENT BASIS FOR HOLDING
IT UNCONSTITUTIONAL.  THIS HOLDING SAVORS TOO MUCH OF THE "NATURAL
LAW,"  "DUE PROCESS," "SHOCK-THE-CONSCIENCE" TEST OF WHAT IS
CONSTITUTIONAL FOR ME TO AGREE TO THE DECISION.  SEE MY DISSENT IN
ADAMSON V. CALIFORNIA, 332 U.S. 46, 68. 

        ADDENDUM. 

THE LATEST STATEMENT BY MY BROTHER HARLAN ON THE POWER OF THIS COURT
UNDER THE DUE PROCESS CLAUSE TO HOLD LAWS UNCONSTITUTIONAL ON THE
GROUND OF THE JUSTICES' VIEW OF "FUNDAMENTAL FAIRNESS" MAKES IT
NECESSARY FOR ME TO ADD A FEW WORDS IN ORDER THAT THE DIFFERENCES
BETWEEN US BE MADE ABSOLUTELY CLEAR.  HE NOW SAYS THAT THE COURT'S IDEA
OF "FUNDAMENTAL FAIRNESS" IS DERIVED "NOT ALONE . . . FROM THE
SPECIFICS OF THE CONSTITUTION, BUT ALSO . . . FROM CONCEPTS WHICH ARE
PART OF THE ANGLO-AMERICAN LEGAL HERITAGE."  THIS VIEW IS CONSISTENT
WITH THAT EXPRESSED BY MR. JUSTICE FRANKFURTER IN ROCHIN V. CALIFORNIA
THAT DUE PROCESS WAS TO BE DETERMINED BY "THOSE CANONS OF DECENCY AND
FAIRNESS WHICH EXPRESS THE NOTIONS OF JUSTICE OF ENGLISH-SPEAKING
PEOPLES.  . . . "  342 U.S. 165, 169.  IN ANY EVENT, MY BROTHER
HARLAN'S "ANGLO-AMERICAN LEGAL HERITAGE" IS NO MORE DEFINITE THAN THE
"NOTIONS OF JUSTICE OF ENGLISH-SPEAKING PEOPLES" OR THE SHOCK-THE
CONSCIENCE TEST.  ALL OF THESE SO-CALLED TESTS REPRESENT NOTHING MORE
OR LESS THAN AN IMPLICIT ADOPTION OF A NATURAL LAW CONCEPT WHICH UNDER
OUR SYSTEM LEAVES TO JUDGES ALONE THE POWER TO DECIDE WHAT THE NATURAL
LAW MEANS.  THESE SO-CALLED STANDARDS DO NOT BIND JUDGES WITHIN ANY
BOUNDARIES THAT CAN BE PRECISELY MARKED OR DEFINED BY WORDS FOR HOLDING
LAWS UNCONSTITUTIONAL.  ON THE CONTRARY, THESE TESTS LEAVE THEM WHOLLY
FREE TO DECIDE WHAT THEY ARE CONVINCED IS RIGHT AND FAIR.  IF THE
JUDGES, IN DECIDING WHETHER LAWS ARE CONSITUTIONAL, ARE TO BE LFT ONLY
TO THE ADMONITIONS OF THEIR OWN CONSCIENCES, WHY WAS IT THAT THE
FOUNDERS GAVE US A WRITTEN CONSTITUTION AT ALL? 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE JAMES M. NABRIT III, THOMAS M. JACOBSON, AND WILLIAM F.
YOUNG, JR. 

SHELDON D. FRANK ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 

RHODA H. KARPATKIN AND MARVIN M. KARPATKIN FILED A BRIEF FOR THE
CONSUMERS UNION OF UNITED STATES, INC., AS AMICUS CURIAE URGING
REVERSAL. 
..END :






RODRIGUE V. AETNA CASUALTY CO., 395 U.S. 352 


       RODRIGUE ET AL. V. AETNA CASUALTY & SURETY CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 436.  ARGUED FEBRUARY 25, 1969.-- DECIDED JUNE 9,
1969. 


TWO MEN WERE KILLED WHILE WORKING ON ARTIFICIAL ISLAND DRILLING RIGS
LOCATED ON THE CONTINENTAL SHELF MORE THAN A MARINE LEAGUE FROM THE
LOUISIANA COAST.  THE MEN'S FAMILIES BROUGHT SUITS FOR WRONGFUL DEATH
IN THE DISTRICT COURTS (1) UNDER THE DEATH ON THE HIGH SEAS ACT ("SEAS
ACT"), WHICH PROVIDES AN ADMIRALTY ACTION FOR RECOVERY OF PECUNIARY
LOSS FOR DEATHS DUE TO WRONGFUL ACTIONS OR OMISSIONS "OCCURRING ON THE
HIGH SEAS" MORE THAN A MARINE LEAGUE OFF THE COAST, AND (2) UNDER
LOUISIANA LAW (WHICH WOULD HAVE ALLOWED RECOVERY FOR ADDITIONAL
ELEMENTS OF DAMAGE) AS ASSERTEDLY MADE APPLICABLE BY THE OUTER
CONTINENTAL SHELF LANDS ACT ("LANDS ACT").  IN EACH CASE THE DISTRICT
COURT HELD THAT THE SEAS ACT PROVIDED THE EXCLUSIVE REMEDY AND THE
COURT OF APPEALS AFFIRMED.  HELD:  PETITIONERS' REMEDY IS UNDER THE
LANDS ACT AND LOUISIANA LAW.  UNDER THE LANDS ACT, FEDERAL LAW,
SUPPLEMENTED BY THE LAW OF THE ADJACENT STATE NOT INCONSISTENT WITH
FEDERAL LAW, IS TO BE APPLIED TO ARTIFICIAL ISLANDS, WHICH CONGRESS
CLEARLY INTENDED WERE TO BE TREATED AS ISLANDS OR FEDERAL ENCLAVES
WITHIN A LANDLOCKED STATE AND NOT AS VESSELS SUBJECT TO ADMIRALTY
JURISDICTION.  PP. 355-366. 

391 F.2D 671 AND 395 F.2D 216, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES TWO MEN, DORE AND RODRIGUE, WHO MET THEIR DEATHS
ON ARTIFICIAL ISLAND DRILLING RIGS LOCATED ON THE OUTER CONTINENTAL
SHELF OFF THE LOUISIANA COAST.  EACH MAN'S FAMILY BROUGHT SUIT FOR
WRONGFUL DEATH IN THE FEDERAL COURTS BOTH UNDER THE DEATH ON THE HIGH
SEAS ACT, 41 STAT. 537, 46 U.S.C. 761 ET SEQ. (HEREINAFTER "SEAS ACT"),
AND UNDER LOUISIANA LAW ASSERTEDLY MADE APPLICABLE BY THE OUTER
CONTINENTAL SHELF LANDS ACT, 67 STAT. 462, 43 U.S.C. 1331 ET SEQ.
(HEREINAFTER "LANDS ACT").  EACH FAMILY'S SUIT WAS SEPARATELY HEARD AND
DECIDED IN THE DISTRICTS COURTS AND IN THE COURT OF APPEALS BELOW.  IN
BOTH CASES THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, AFFIRMING THE
DISTRICT COURTS, HELD THAT THE SEAS ACT WAS THE EXCLUSIVE REMEDY FOR
THESE DEATHS.  PETITIONERS SOUGHT CERTIORARI, CLAIMING THAT THEY ARE
ENTITLED TO AN ADDITIONAL REMEDY UNDER THE STATE LAW ADOPTED BY THE
LANDS ACT. 

IN THE DORE CASE, THE DECEDENT WAS WORKING ON A CRANE MOUNTED ON THE
ARTIFICIAL ISLAND AND BEING USED TO UNLOAD A BARGE.  AS THE CRAME
LIFTED A LOAD FROM THE BARGE TO PLACE IT ON THE ARTIFICIAL ISLAND, THE
CRANE COLLAPSED AND TOPPLED OVER ONTO THE CARGE, KILLING THE WORKER. 
HIS WIDOW AND HER THREE CHILDREN BROUGHT A SINGLE ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, ALLEGING
THEIR OWN AND THE DECEDENT'S RESIDENCY IN LOUISIANA AND THE NEGLIGENCE
OF THE FIRMS WHICH MANUFACTURED, INSTALLED, AND SERVICED THE CRANE. 
THE SUIT WAS BROUGHT UNDER THE "GENERAL MARITIME LAWS, THE DEATH ON THE
HIGH SEAS ACT, . . . ARTICLE 2315 OF THE (LOUISIANA CODE) AND UNDER THE
OTHER LAWS OF THE UNITED STATES AND THE STATE OF LOUISIANA."  IT
CLAIMED $670,000 IN DAMAGES TO THE FAMILY PLAINTIFFS FOR LOSS OF THEIR
HUSBAND AND FATHER, INCLUDING PECUNIARY AND PSYCHIC LOSSES.  ON MOTION
FOR SUMMARY JUDGMENT AS TO ALL CLAIMS BUT THAT UNDER THE SEAS ACT, THE
DISTRICT JUDGE DETERMINED THAT THE LATTER WAS PLAINTIFFS' ONLY REMEDY,
REMOVED THE CASE TO THE ADMIRALTY SIDE OF THE COURT, AND THUS LIMITED
THE PLAINTIFF'S RECOVERY TO PECUNIARY LOSS.  THE STATE STATUTE WOULD
HAVE ALLOWED RECOVERY FOR ADDITIONAL ELEMENTS OF DAMAGE.  THE DISTRICT
JUDGE CERTIFIED THE QUESTION PURSUANT TO FEDERAL RULE OF CIVIL
PROCEDURE 54(B), AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
AFFIRMED.  391 F.2D 671. 

IN THE RODRIGUE CASE, THE DECEDENT WAS PERFORMING A TEST OF A DRILL
PIPE.  HE WAS HIGH ON THE DERRICK RISING ABOVE THE ARTIFICIAL ISLAND,
AND FELL FROM IT TO HIS DEATH ON THE FLOOR OF THE STRUCTURE.  HIS WIDOW
AND TWO CHILDREN BROUGHT THREE ACTIONS IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA.  NE WAS AN ADMIRALTY ACTION UNDER THE
SEAS ACT; THE OTHER TWO WERE CIVIL ACTIONS RESPECTIVELY AGAINST THE
OWNER AND INSURER OF THE DRILL RIG, AND THE OWNER OF THE STATIONARY
PLATFORM.  THE CIVIL ACTIONS WERE BROUGHT UNDER THE LANDS ACT AND
ARTICLE 2315 OF THE LOUISIANA REVISED CIVIL CODE.  THE TRIAL COURT
CONSOLIDATED THE TWO CIVIL ACTIONS AND DISMISSED THE INSURER, WHO HAD
BEEN MADE A PARTY TO ONE OF THE CIVIL ACTIONS PURSUANT TO THE LOUISIANA
DIRECT-ACTION STATUTE, LA. REV. STAT. ANN. SEC. 22:  655.  NO REASON
WAS ASSIGNED FOR THE DISMISSAL, BUT THE GROUND URGED IN THE MOTION WAS
THAT THE ACCIDENT DID NOT OCCUR WITHIN THE STATE OF LOUISIANA, SO THAT
LOUISIANA LAW DID NOT APPLY.  CONSISTENTLY WITH THIS, THE DISTRICT
JUDGE DISMISSED THE CONSOLIDATED CIVIL ACTION BEFORE TRIAL, ON THE
GROUND THAT THE SEAS ACT PROVIDED A REMEDY AND THAT UNDER SUCH
CIRCUMSTANCES THE LANDS ACT WOULD NOT MAKE THE INCONSISTENT STATE
REMEDY APPLICABLE.  /1/  THE ADMIRALTY ACTION PROCEEDED TO TRIAL AND
JUDGMENT OF $75,000, 266 F.SUPP.  1, WHICH IS NOT NOW BEFORE US.  ON
APPEAL OF THE DISMISSAL OF THE CIVIL ACTIONS, THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT AFFIRMED THE DISTRICT COURT PER CURIAM, CITING ITS
DECISION IN THE DORE CASE ALMOST TWO MONTHS BEFORE.  395 F.2D 216. 

CERTIORARI WAS GRANTED IN BOTH CASES, 393 U.S. 932 (1968), AND THEY
WERE ARGUED TOGETHER HERE.  IN LIGHT OF THE PRINCIPLES OF TRADITIONAL
ADMIRALTY LAW, THE SEAS ACT, AND THE LANDS ACT, WE HOLD THAT
PETITIONERS' REMEDY IS UNDER THE LANDS ACT AND LOUISIANA LAW.  THE
LANDS ACT MAKES IT CLEAR THAT FEDERAL LAW, SUPPLEMENTED BY STATE LAW OF
THE ADJACENT STATE, IS TO BE APPLIED TO THESE ARTIFICIAL ISLANDS AS
THOUGH THEY WERE FEDERAL ENCLAVES IN AN UPLAND STATE.  THIS APPROACH
WAS DELIBERATELY TAKEN IN LIEU OF TREATING THE STRUCTURES AS VESSELS,
TO WHICH ADMIRALTY LAW SUPPLEMENTED BY THE LAW OF THE JURISDICTION OF
THE VESSEL'S OWNER WOULD APPLY.  THE HAMILTON, 207 U.S. 398 (1907). 
THIS WAS DONE IN PART BECAUSE MEN WORKING ON THESE ISLANDS ARE CLOSELY
TIED TO THE ADJACENT STATE, TO WHICH THEY OFTEN COMMUTE AND ON WHICH
THEIR FAMILIES LIVE, UNLIKE TRANSITORY SEAMEN TO WHOM A MORE
GENERALIZED ADMIRALTY LAW IS APPROPRIATE.  SINCE THE SEAS ACT DOES NOT
APPLY OF ITS OWN FORCE UNDER ADMIRALTY PRINCIPLES, AND SINCE THE LANDS
ACT DELIBERATELY ESCHEWED THE APPLICATION OF ADMIRALTY PRINCIPLES TO
THESE NOVEL STRUCTURE, LOUISIANA LAW IS NOT OUSTED BY THE SEAS ACT, AND
UNDER THE LANDS ACT IT IS MADE APPLICABLE. 

        I. 

THE PURPOSE OF THE LANDS ACT WAS TO DEFINE A BODY OF LAW APPLICABLE
TO THE SEABED, THE SUBSOIL, AND THE FIXED STRUCTURES SUCH AS THOSE IN
QUESTION HERE ON THE OUTER CONTINENTAL SHELF.  THAT THIS LAW WAS TO BE
FEDERAL LAW OF THE UNITED STATES, APPLYING STATE LAW ONLY AS FEDERAL
LAW AND THEN ONLY WHEN NOT INCONSISTENT WITH APPLICABLE FEDERAL LAW, IS
MADE CLEAR BY THE LANGUAGE OF THE ACT.  SECTION 3 MAKES IT THE "POLICY
OF THE UNITED STATES" THAT THE AFFECTED AREAS "APPERTAIN TO THE UNITED
STATES AND ARE SUBJECT TO ITS JURISDICTION, CONTROL AND POWER OF
DISPOSITION."  /2/  SECTION 4 /3/ MAKES THE "CONSTITUTION AND LAWS AND
CIVIL AND POLITICAL JURISDICTION OF THE UNITED STATES" APPLY "TO THE
SAME EXTENT AS IF THE OUTER CONTINENTAL SHELF WERE AN AREA OF EXCLUSIVE
FEDERAL JURISDICTION LOCATED WITHIN A STATE."  SINCE FEDERAL LAW,
BECAUSE OF ITS LIMITED FUNCTION IN A FEDERAL SYSTEM, MIGHT BE
INADEQUATE TO COPE WITH THE FULL RANGE OF POTENTIAL LEGAL PROBLEMS, THE
ACT SUPPLEMENTED GAPS IN THE FEDERAL LAW WITH STATE LAW THROUGH THE
"ADOPTION OF STATE LAW AS THE LAW OF THE UNITED STATES."  UNDER SEC. 4,
THE ADJACENT STATE'S LAWS WERE MADE "THE LAW OF THE UNITED STATES FOR
(THE RELEVANT SUBSOIL AND SEABED) AND ARTIFICIAL ISLANDS AND FIXED
STRUCTURES ERECTED THEREON," BUT ONLY TO "THE EXTENT THAT THEY ARE
APPLICABLE AND NOT INCONSISTENT WITH . . . OTHER FEDERAL LAWS." 

IT IS EVIDENT FROM THIS THAT FEDERAL LAW IS "EXCLUSIVE" IN ITS
REGULATION OF THIS AREA, AND THAT STATE LAW IS ADOPTED ONLY AS
SURROGATE FEDERAL LAW.  THE SENATE REPORT ON THE BILL REFERRED TO THE
"PRECISE UNEQUIVOCAL LANGUAGE" OF "THE PROVISION FOR THE ADOPTION OF
STATE LAWS AS FEDERAL LAW," AND REFFERED TO THE APPLICABLE BODY OF LAW
AS CONSISTING OF THE CONSTITUTION AND LAWS OF THE UNITED STATES, THE
REGULATIONS OF THE SECRETARY OF THE INTERIOR, AND FINALLY THE LAWS OF
THE ADJACENT STATES "ADOPTED AS FEDERAL LAW AND MADE APPLICABLE TO
SUPPLEMENT EXISTING FEDERAL LAW AND REGULATIONS."  S. REP NO. 411 OF
THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, 83D CONG., 1ST SESS., 11
(1953). 

IT WAS THE SENATE COMMITTEE WHICH FIRST INTRODUCED THE PRESENT
PROVISION ADOPTING STATE LAW, AND IN ITS REPORT EXPLAINING THE
INTRODUCTION IT ASSERTED:  "PARAGRAPH (2) ADOPTS STATE LAW AS FEDERAL
LAW, TO BE USED WHEN FEDERAL STATUTES OR REGULATIONS OF THE SECRETARY
OF THE INTERIOR ARE INAPPLICABLE."  ID., AT 23.  THIS LANGUAGE MAKES IT
CLEAR THAT STATE LAW COULD BE USED TO FILL FEDERAL VOIDS.  AND IN THE
CONFERENCE REPORT, THE HOUSE MANAGERS OF THE BILL NOTED THAT LAWS OF
ADJACENT STATES WHICH ARE NOT INCONSISTENT WITH FEDERAL LAW "ARE
ADOPTED AS THE LAWS OF THE UNITED STATES FOR THOSE PARTICULAR AREAS." 
H.R. CONF. REF. NO. 1031, 83D CONG., 1ST SESS., 12 (1953). 

THE PRINCIPLES THAT FEDERAL LAW SHOULD PREVAIL, AND THAT STATE LAW
SHOULD BE APPLIED ONLY AS FEDERAL LAW AND THEN ONLY WHEN NO
INCONSISTENT FEDERAL LAW APPLIED, WERE ADOPTED BY A CONGRESS IN WHICH
FULL DEBATE HAD UNDERSCORED THE ISSUE.  SENATOR CORDON, IN PRESENTING
THE LANDS ACT TO THE SENATE, NOTED THAT THE PROBLEM ADDRESSED BY THE
COMMITTEE HAD BEEN RAISED BY "THE FACT THAT THE FULL DEVELOPMENT OF THE
ESTIMATED VALUES IN THE SHELF AREA WILL REQUIRE THE EFFORTS AND THE
PHYSICAL PRESENCE OF THOUSANDS OF WORKERS ON FIXED STRUCTURES IN THE
SHELF AREA.  INDUSTRIAL ACCIDENTS, ACCIDENTAL DEATH, PEACE, AND ORDER"
PRESENT PROBLEMS REQUIRING A BODY OF LAW FOR THEIR SOLUTION.  SINCE "AS
EVERY MEMBER OF THE SENATE KNOWS, THE FEDERAL CODE WAS NEVER DESIGNED
TO BE A COMPLETE BODY OF LAW IN AND OF ITSELF," THE COMMITTEE DECIDED
THAT STATE LAW WOULD HAVE TO BE REFERRED TO IN SOME INSTANCES.  99
CONG.REC.  6962-6963.  AS SENATOR ANDERSON, A MEMBER OF THE CONFERENCE
COMMITTEE, PUT IT:  "THE REAL POINT IS . . . THAT THE LANGUAGE IN
APPLICABLE IN THE AREA, BUT THAT WHERE THERE IS A VOID, THE STATE LAW
MAY BE APPLICABLE.  . . . "  99 CONG.REC.  7164.  SENATOR CORDON NOTED
THAT THIS VIEW WAS "ENTIRELY CORRECT" AND ADDED THAT:  "THESE LAWS, BY
THE TERMS OF THE ACT, ARE ENACTED AS FEDERAL LAW." 

THE OPPONENTS OF THE ACT REALIZED FULL WELL THAT STATE LAW WAS BEING
USED ONLY TO SUPPLEMENT FEDERAL LAW, AND SENATOR LONG INTRODUCED AN
AMENDMENT TO THE ACT WHICH WOULD HAVE MADE "THE LAWS OF SUCH STATE,
APPLICABLE TO THE NEWLY ACQUIRED AREA, AND . . . THE OFFICIALS OF SUCH
STATE (THE AGENTS EMPOWERED) TO ENFORCE THE LAWS OF THE STATE IN THE
NEWLY ACQUIRED AREA."  IN ARGUING FOR HIS AMENDMENT, SENATOR LONG
ASSERTED THAT "(IT IS EVEN MORE IMPORTANT THAT STATE LAW SHOULD APPLY
ON THE ARTIFICIAL ISLANDS THAN ON NATURAL ISLANDS.  . . . "  BUT THE
AMENDMENT WAS REJECTED.  SEE 99 CONG.REC.  7232-7236.  THIS LEGISLATIVE
HISTORY BUTTRESSES THE COURT OF APPEALS' FINDING THAT IN VIEW OF THE
INCONSISTENCIES BETWEEN THE STATE LAW AND THE SEAS ACT, THE SEAS ACT
REMEDY WOULD BE EXCLUSIVE IF IT APPLIED. 

        II. 

HOWEVER, FOR FEDERAL LAW TO OUST ADOPTED STATE LAW FEDERAL LAW MUST
FIRST APPLY.  THE COURT BELOW ASSUMED THAT THE SEAS ACT /4/  DID APPLY,
SINCE THE ISLAND WAS LOCATED MORE THAN A MARINE LEAGUE OFF THE
LOUISIANA COAST.  BUT THAT IS NOT ENOUGH TO MAKE THE SEAS ACT
APPLICABLE.  /5/  THE ACT REDRESSES ONLY THOSE DEATHS STEMMING FROM
WRONGFUL ACTIONS OR OMISSIONS "OCCURRING ON THE HIGH SEAS," AND THESE
CASES INVOLVE A SERIES OF EVENTS ON ARTIFICIAL ISLANDS.  MOREOVER, THE
ISLANDS WERE NOT ERECTED PRIMARILY AS NAVIGATIONAL AIDS, AND THE
ACCIDENTS HERE BORE NO RELATION TO ANY SUCH FUNCTION.  ADMIRALTY
JURISDICTION HAS NOT BEEN CONSTRUED TO EXTEND TO ACCIDENTS ON PIERS,
JETTIES, BRIDGES, OR EVEN RAMPS OR RAILWAYS RUNNING INTO THE SEA.  /6/
TO THE EXTENT THAT IT HAS BEEN APPLIED TO FIXED STRUCTURES COMPLETELY
SURROUNDED BY WATER, THIS HAS USUALLY INVOLVED COLLISION WITH A SHIP
AND HAS BEEN EXPLAINED BY THE USE OF THE STRUCTURE SOLELY OR
PRINCIPALLY AS A NAVIGATIONAL AID.  /7/  BUT WHEN THE DAMAGE IS CAUSED
BY A VESSEL ADMITTEDLY IN ADMIRALTY JURISDICTION, THE ADMIRALTY
EXTENSION ACT /8/  WOULD NOW MAKE AVAILABLE THE ADMIRALTY REMEDY IN ANY
EVENT. 

THE ACCIDENTS IN QUESTION HERE INVOLVED NO COLLISION WITH A VESSEL,
AND THE STRUCTURES WERE NOT NAVIGATIONAL AIDS.  THEY WERE ISLANDS,
ALBEIT ARTIFICIAL ONES, AND THE ACCIDENTS HAD NO MORE CONNECTION WITH
THE ORDINARY STUFF OF ADMIRALTY THAN DO ACCIDENTS ON PIERS.  INDEED,
THE COURT HAS SPECIFICALLY HELD THAT DRILLING PLATFORMS ARE NOT WITHIN
ADMIRALTY JURISDICTION.  PHOENIX CONSTRUCTION CO. V. THE STEAMER
POUGHKEEPSIE, 212 U.S. 558, AFFIRMING 162 F. 494 (1908).  THERE A SHIP
DAMAGED A STRUCTURE "COMPOSED OF VARIOUS LENGTHS OF WROUGHT IRON PIPE
SURROUNDED BY A PLATFORM ON THE SURFACE."  CITING THE SAME CASES ON
WHICH THE LOWER COURT HAD RELIED, THIS COURT AFFIRMED ITS CONCLUSION
THAT JURISDICTION WAS LACKING SINCE THE "PROJECT WHICH THE LIBELLANT
WAS ENGAGED IN IS NOT EVEN SUGGESTIVE OF MARITIME AFFAIRS.  IT WAS
SUPPLYING WATER TO A CITY AND THE MERE FACT OF THE MEANS BEING CARRIED
UNDER THE BED OF A RIVER, WITH EXTENSIONS THROUGH THE RIVER TO THE
SURFACE, DID NOT CREATE ANY MARITIME RIGHT, NOR WAS IT IN ANY SENSE AN
AID TO NAVIGATION, WHICH WAS THE DISTINGUISHING FEATURE OF THE
BLACKHEATH."  162 F.,AT 496.  IN THESE CIRCUMSTANCES, THE SEAS ACT--
WHICH PROVIDES AN ACTION IN ADMIRALTY-- CLEARLY WOULD NOT APPLY UNDER
CONVENTIONAL ADMIRALTY PRINCIPLES AND, SINCE THE LANDS ACT PROVIDES AN
ALTERNATIVE FEDERAL REMEDY THROUGH ADOPTED STATE LAW, THERE IS NO
REASON TO ASSUME THAT CONGRESS INTENDED TO EXTEND THOSE PRINCIPLES TO
CREATE AN ADMIRALTY REMEDY HERE.  AND IF THE CONGRESS HAD MADE THE 1920
SEAS ACT APPLICABLE, OUSTING INCONSISTENT STATE LAW, THE ARTIFICIAL
ISLAND WORKER WOULD BE ENTITLED TO FAR LESS COMPREHENSIVE REMEDIES IN
MANY CASES THAN HE IS NOW. 

EVEN IF THE ADMIRALTY LAW WOULD HAVE APPLIED TO THE DEATHS OCCURRING
IN THESE CASES UNDER TRADITIONAL PRINCIPLES, THE LEGISLATIVE HISTORY
SHOWS THAT CONGRESS DID NOT INTEND THAT RESULT.  FIRST, CONGRESS
ASSUMED THAT THE ADMIRALTY LAW WOULD NOT APPLY UNLESS CONGRESS MADE IT
APPLY, AND THEN CONGRESS DECIDED NOT TO MAKE IT APPLY.  THE LEGISLATIVE
HISTORY OF THE LANDS ACT MAKES IT CLEAR THAT THESE STRUCTURES WERE TO
BE TREATED AS ISLANDS OR AS FEDERAL ENCLAVES WITHIN A LANDLOCKED STATE,
NOT AS VESSELS.     IN INTRODUCING THE BILL TO THE SENATE, SENATOR
CORDON EXPLAINED ITS INCEPTION AS FOLLOWS: 

     "THE COMMITTEE FIRST ATTEMPTED TO PROVIDE HOUSEKEEPING LAW FOR

  THE OUTER SHELF BY APPLYING TO THE STRUCTURES NECESSARY FOR THE

  REMOVAL OF THE MINERALS IN THE AREA UNDER THE MARITIME LAW OF THE

UNITED STATES.  THIS WAS FIRST ATTEMPTED BY INCORPORATING BY

  REFERENCE THE ADMIRALTY STATUTES.  THIS SOLUTION AT FIRST SEEMED

  TO BE A REASONABLY COMPLETE ANSWER . . . INASMUCH AS THE DRILLING

  PLATFORMS WOULD HAVE BEEN TREATED AS VESSELS.  MARITIME LAW,

  WHICH APPLIES TO AMERICAN VESSELS, WOULD HAVE APPLIED UNDER THAT

  THEORY TO THE STRUCTURES THEMSELVES. 

     "HOWEVER, FURTHER CONSIDERATION CLEARLY SHOWED THAT THIS

  APPROACH WAS NOT AN ADEQUATE AND COMPLETE ANSWER TO THE PROBLEM. 

  THE SO-CALLED SOCIAL LAWS NECESSARY FOR PROTECTION OF THE WORKERS

  AND THEIR FAMILIES WOULD NOT APPLY.  I REFER TO SUCH THINGS AS

  UNEMPLOYMENT LAWS, INDUSTRIAL-ACCIDENT LAWS, FAIR

  FAIR-LABOR-STANDARD LAWS, AND SO FORTH.  . . .

        .          .     .          . 

     "(ULTIMATELY, INSTEAD,) THE WHOLE BODY OF FEDERAL LAW (WAS
MADE

  APPLICABLE) TO THE AREA (AS WELL AS STATE LAW WHERE NECESSARY). 

  THUS, THE LEGAL SITUATION IS COMPARABLE TO THAT IN THE AREAS

  OWNED BY THE FEDERAL GOVERNMENT UNDER THE EXCLUSIVE JURISDICTION

  OF THE FEDERAL GOVERNMENT AND LYING WITHIN THE BOUNDARIES OF A

STATE IN THE UPLANDS."  99 CONG.REC.  6963. 

SIMILARLY, SENATOR ELLENDER ASSERTED THAT IN THE FIRST DRAFT IT "WAS
SOUGHT TO TREAT THE PLATFORMS OR ARTIFICIAL ISLANDS CREATED IN THE
WATER AS SHIPS" BUT NOW THE "ISLANDS ARE MADE SUBJECT TO OUR DOMESTIC
LAW" INSTEAD SO AS TO BE "TREATED JUST AS THOUGH THEY WERE ISLANDS
CREATED BY NATURE, INSOFAR AS THE APPLICATION OF OUR DOMESTIC LAWS IS
CONCERNED."  99 CONG.REC.  7235. 

THE HOUSE BILL, H.R. 5134, HAD MADE FEDERAL LAW APPLICABLE, BUT ALSO
PROVIDED THAT THE NOT "INCONSISTENT . . . LAWS OF EACH COASTAL STATE
WHICH SO PROVIDES SHALL BE APPLICABLE," AT LEAST IF ADOPTED BY THE
SECRETARY OF THE INTERIOR.  H.R. REP. NO. 413, 83D CONG., 1ST SESS., 4,
8-9 (1953).  THE SENATE BILL, AS IT READ BEFORE COMMITTEE AMENDMENTS,
PROVIDED INSTEAD THAT ACTS "ON ANY STRUCTURE (OTHER THAN A VESSEL)"
LOCATED ON THE CONTINENTAL SHELF FOR EXPLORING ITS RESOURCES "SHALL BE
DEEMED TO HAVE OCCURRED OR BEEN COMMITTED ABOARD A VESSEL OF THE UNITED
STATES ON THE HIGH SEAS AND SHALL BE ADJUDICATED . . . ACCORDING TO THE
LAWS RELATING TO SUCH ACTS . . . ON VESSELS OF THE UNITED STATES ON THE
HIGH SEAS."  WHEN THE SENATE BILL WAS REPORTED FROM COMMITTEE, THIS
ANY REFERENCE TO TREATING THE ISLANDS AS THOUGH THEY WERE VESSELS. 

CAREFUL SCRUTINY OF THE HEARINGS WHICH WERE THE BASIS FOR
ELIMINATING FROM THE LANDS ACT THE TREATMENT OF ARTIFICIAL ISLANDS AS
VESSELS CONVINCES US THAT THE MOTIVATION FOR THIS CHANGE, TOGETHER WITH
THE ADOPTION OF STATE LAW AS SURROGATE FEDERAL LAW, WAS THE VIEW THAT
MARITIME LAW WAS INAPPOSITE TO THESE FIXED STRUCTURES.  SEE GENERALLY
HEARINGS BEFORE THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,
83D CONG., 1ST SESS., ON S. 1901 (1953) (HEREAFTER HEARINGS).  ONE
THEME RUNNING THROUGHOUT THE HEARINGS WAS THE CLOSE RELATIONSHIP
BETWEEN THE WORKERS ON THE ISLANDS AND THE ADJOINING STATES. 
OBJECTIONS WERE REPEATEDLY VOICED TO APPLICATION OF MARITIME LAW AND
WITH IT THE ADMIRALTY PRINCIPLE THAT THE LAW OF THE STATE OF THE OWNER
OF THE ARTIFICIAL ISLAND "VESSEL" IS USED FOR SUPPLEMENTATION.  /9/  ON
THE OTHER HAND, FEDERAL ENFORCEMENT OF THE LAW IN THIS AREA WAS
INSISTED UPON BY THE DEPARTMENT OF JUSTICE, AND THERE WAS SUBSTANTIAL
DOUBT WHETHER STATE LAW AND JURISDICTION COULD OR SHOULD BE EXTENDED TO
THE STRUCTURES.  /10/  A FEDERAL SOLUTION WAS THOUGHT NECESSARY. 

THE COMMITTEE WAS AWARE THAT IT HAD THE POWER TO TREAT ACTIVITY ON
THESE ARTIFICIAL ISLANDS AS THOUGH IT OCCURRED ABOARD SHIP.  JONES V.
UNITED STATES, 137 U.S. 202 (1890); HEARINGS 511-512; EXTENSION OF
ADMIRALTY ACT OF 1948, 62 STAT. 496, 46 U.S.C. 740; SEE UNITED STATES
V. MATSON NAV. CO., 201 F.2D 610 (C.A. 9TH CIR. 1953); CF. GUTIERREZ V.
WATERMAN S. S. CORP., 373 U.S. 206, 209 (1963).  AND THE VERY DECISION
TO DO SO IN THE INITIAL BILL RECOGNIZED THAT IF IT WERE NOT ADOPTED
EXPLICITLY, MARITIME LAW SIMPLY WOULD NOT APPLY TO THESE STATIONARY
STRUCTURES NOT ERECTED AS NAVIGATIONAL AIDS.  /11/  MOREOVER, THE
COMMITTEE WAS ACUTELY AWARE OF THE INAPTNESS OF ADMIRALTY LAW.  THE
BILL APPLIED THE SAME LAW TO THE SEABED AND SUBSOIL AS WELL AS TO THE
ARTIFICIAL ISLANDS, AND ADMIRALTY LAW WAS OBVIOUSLY UNSUITED TO THAT
TASK.  /12/ 

ALTHOUGH THE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL,
PERSISTED TO THE END IN HIS CLAIM THAT ADMIRALTY LAW SHOULD APPLY, AND
THAT WITH IT SHOULD BE INCORPORATED THE LAW OF THE STATE OF THE
INLAND'S OWNER, THIS VIEW OBVIOUSLY DID NOT PREVAIL.  INSTEAD, A
COMPROMISE EMERGED.  THE ADMINISTRATION'S OPPOSITION TO COMMITTING
THESE AREAS SOLELY TO THE JURISDICTION OF STATE COURTS, STATE
SUBSTANTIVE LAW, AND STATE LAW ENFORCEMENT WAS RECOGNIZED IN THAT THE
APPLICABLE LAW WAS MADE FEDERAL LAW ENFORCEABLE BY FEDERAL OFFICIALS IN
FEDERAL COURTS.  BUT THE SPECIAL RELATIONSHIP BETWEEN THE MEN WORKING
ON THESE ARTIFICIAL ISLANDS AND THE ADJACENT SHORE TO WHICH THEY
COMMUTE TO VISIT THEIR FAMILIES WAS ALSO RECOGNIZED BY DROPPING THE
TREATMENT OF THESE STRUCTURES AS "VESSELS" AND INSTEAD, OVER THE
OBJECTIONS OF THE ADMINISTRATION THAT THESE ISLANDS WERE NOT REALLY
LOCATED WITHIN A STATE, THE BILL WAS AMENDED TO TREAT THEM "AS IF
(THEY) WERE (IN) AN AREA OF EXCLUSIVE FEDERAL JURISDICTION LOCATED
WITHIN A STATE."  STATE LAW BECAME FEDERAL LAW FEDERALLY ENFORCED. 

IN VIEW OF ALL THIS, AND THE DISCLOSURE BY SENATOR CORDON TO THE
SENATE UPON INTRODUCTION OF THE BILL THAT THE ADMIRALTY OR MARITIME
APPROACH OF THE ORIGINAL BILL HAD BEEN ABANDONED, IT IS APPARENT THAT
THE CONGRESS DECIDED THAT THESE ARTIFICIAL ISLANDS, THOUGH SURROUNDED
BY THE HIGH SEAS, WERE NOT THEMSELVES TO BE CONSIDERED WITHIN MARITIME
JURISDICTION.  THUS THE ADMIRALTY ACTION UNDER THE SEAS ACT NO MORE
APPLIES TO THESE ACCIDENTS ACTUALLY OCCURRING ON THE ISLANDS THAN IT
WOULD TO ACCIDENTS OCCURRING IN AN UPLAND FEDERAL ENCLAVE OR ON A
NATURAL ISLAND TO WHICH ADMIRALTY JURISDICTION HAD NOT BEEN
SPECIFICALLY EXTENDED.  AT A MINIMUM, THE LEGISLATIVE HISTORY SHOWS
THAT ACCIDENTS ON THESE STRUCTURES, WHICH UNDER MARITIME PRINCIPLES
WOULD BE NO MORE UNDER MARITIME JURISDICTION THAN ACCIDENTS ON A WHARF
LOCATED ABOVE NAVIGABLE WATERS, WERE NOT CHANGED IN CHARACTER BY THE
LANDS ACT. 

SINCE THE INAPPLICABILITY OF THE SEAS ACT REMOVES ANY OBSTACLE TO
THE APPLICATION OF STATE LAW BY INCORPORATION AS FEDERAL LAW THROUGH
THE LANDS ACT, THE DECISIONS BELOW ARE REVERSED AND THE CAUSES REMANDED
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE DISTRICT COURT DISMISSED ONE OF THE CIVIL CAUSES OF ACTION
ON THE GROUND THAT UNLIKE THE OTHER IT DID NOT SPECIFICALLY NAME THE
LANDS ACT, BUT RESTED INSTEAD DIRECTLY ON LOUISIANA LAW.  THIS FORMAL
OMISSION WAS INCONSEQUENTIAL BECAUSE OF THE DISTRICT JUDGE'S VIEW THAT
THERE WOULD BE NO CAUSE OF ACTION EVEN UNDER THE LANDS ACT AND
LOUISIANA LAW TOGETHER.  ON REMAND, IT MAY BE THAT BOTH CLAIMS CAN BE
CONSTRUED TO ASSERT ACTIONS UNDER THE LANDS ACT AND LOUISIANA LAW, OR
THAT ANY DEFICIENCY IN THIS REGARD CAN BE CURED BY AMENDMENT OF THE
PLEADINGS.  FED. RULE CIV. PROC. 15. 

/2/  67 STAT. 462, AS SET FORTH IN 43 U.S.C. 1332: 

"(A) IT IS DECLARED TO BE THE POLICY OF THE UNITED STATES THAT THE
SUBSOIL AND SEABED OF THE OUTER CONTINENTAL SHELF APPERTAIN TO THE
UNITED STATES AND ARE SUBJECT TO ITS JURISDICTION, CONTROL, AND POWER
OF DISPOSITION AS PROVIDED IN THIS SUBCHAPTER." 

/3/  67 STAT. 462, AS SET FORTH IN 43 U.S.C. 1333: 

"SEC. 1333.  LAWS AND REGULATIONS GOVERNING LANDS. 

"(A) CONSTITUTION AND UNITED STATES LAW; LAWS OF ADJACENT STATES;
PUBLICATION OF PROJECTED STATE LINES; RESTRICTION ON STATE TAXATION AND
JURISDICTION. 

"(1) THE CONSTITUTION AND LAWS AND CIVIL AND POLITICAL JURISDICTION
OF THE UNITED STATES ARE EXTENDED TO THE SUBSOIL AND SEABED OF THE
OUTER CONTINENTAL SHELF AND TO ALL ARTIFICIAL ISLANDS AND FIXED
STRUCTURES WHICH MAY BE ERECTED THEREON FOR THE PURPOSE OF EXPLORING
FOR, DEVELOPING, REMOVING, AND TRANSPORTING RESOURCES THEREFROM, TO THE
SAME EXTENT AS IF THE OUTER CONTINENTAL SHELF WERE AN AREA OF EXCLUSIVE
FEDERAL JURISDICTION LOCATED WITHIN A STATE:  PROVIDED, HOWEVER, THAT
MINERAL LEASES ON THE OUTER CONTINENTAL SHELF SHALL BE MAINTAINED OR
ISSUED ONLY UNDER THE PROVISIONS OF THIS SUBCHAPTER. 

"(2) TO THE EXTENT THAT THEY ARE APPLICABLE AND NOT INCONSISTENT
WITH THIS SUBCHAPTER OR WITH OTHER FEDERAL LAWS AND REGULATIONS OF THE
SECRETARY NOW IN EFFECT OR HEREAFTER ADOPTED, THE CIVIL AND CRIMINAL
LAWS OF EACH ADJACENT STATE AS OF THE EFFECTIVE DATE OF THIS SUBCHAPTER
ARE DECLARED TO BE THE LAW OF THE UNITED STATES FOR THAT PORTION OF THE
SUBSOIL AND SEABED OF THE OUTER CONTINENTAL SHELF, AND ARTIFICIAL
ISLANDS AND FIXED STRUCTURES ERECTED THEREON, WHICH WOULD BE WITHIN THE
AREA OF THE STATE IF ITS BOUNDARIES WERE EXTENDED SEAWARD TO THE OUTER
MARGIN OF THE OUTER CONTINENTAL SHELF, AND THE PRESIDENT SHALL
DETERMINE AND PUBLISH IN THE FEDERAL REGISTER SUCH PROJECTED LINES
EXTENDING SEAWARD AND DEFINING EACH SUCH AREA.  ALL OF SUCH APPLICABLE
LAWS SHALL BE ADMINISTERED AND ENFORCED BY THE APPROPRIATE OFFICERS AND
COURTS OF THE UNITED STATES.  STATE TAXATION LAWS SHALL NOT APPLY TO
THE OUTER CONTINENTAL SHELF. 

"(3) THE PROVISIONS OF THIS SECTION FOR ADOPTION OF STATE LAW AS THE
LAW OF THE UNITED STATES SHALL NEVER BE INTERPRETED AS A BASIS FOR
CLAIMING ANY INTEREST IN OR JURISDICTION ON BEHALF OF ANY STATE FOR ANY
PURPOSE OVER THE SEABED AND SUBSOIL OF THE OUTER CONTINENTAL SHELF, OR
THE PROPERTY AND NATURAL RESOURCES THEREOF OR THE REVENUES THEREFROM." 

/4/  41 STAT. 537, 46 U.S.C. 761-768.  46 U.S.C. 761 READS: 

"WHENEVER THE DEATH OF A PERSON SHALL BE CAUSED BY WRONGFUL ACT,
NEGLECT, OR DEFAULT OCCURRING ON THE HIGH SEAS BEYOND A MARINE LEAGUE
FROM THE SHORE OF ANY STATE, OR THE DISTRICT OF COLUMBIA, OR THE
TERRITORIES OR DEPENDENCIES OF THE UNITED STATES, THE PERSONAL
REPRESENTATIVE OF THE DECEDENT MAY MAINTAIN A SUIT FOR DAMAGES IN THE
DISTRICT COURTS OF THE UNITED STATES, IN ADMIRALTY, FOR THE EXCLUSIVE
BENEFIT OF THE DECEDENT'S WIFE, HUSBAND, PARENT, CHILD, OR DEPENDENT
RELATIVE AGAINST THE VESSEL, PERSON, OR CORPORATION WHICH WOULD HAVE
BEEN LIABLE IF DEATH HAD NOT ENSUED." 

/5/  SINCE THIS TOPIC RECEIVED SCANT ATTENTION IN ARGUMENT IN THIS
COURT, ADDITIONAL BRIEFS WERE REQUESTED. 

/6/  THE PLYMOUTH, 3 WALL.  20 (1866); THE TROY, 208 U.S. 321
(1908); T. SMITH & SON, INC. V. TAYLOR, 276 U.S. 179 (1928); HASTINGS
V. MANN, 340 F.2D 910 (C.A. 4TH CIR.), CERT. DENIED, 380 U.S. 963
(1965). 

/7/  THE BLACKHEATH, 195 U.S. 361 (1904); THE RAITHMOOR, 241 U.S.
166 (1916); DOULLUT & WILLIAMS CO. V. UNITED STATES, 268 U.S. 33
(1925). 

/8/  "THE ADMIRALTY AND MARITIME JURISDICTION OF THE UNITED STATES
SHALL EXTEND TO AND INCLUDE ALL CASES OF DAMAGE OR INJURY, TO PERSON OR
PROPERTY, CAUSED BY A VESSEL ON NAVIGABLE WATER, NOTWITHSTANDING THAT
SUCH DAMAGE OR INJURY BE DONE OR CONSUMMATED ON LAND."  62 STAT. 496,
46 U.S.C. 740. 

/9/  FOR EXAMPLE, SENATOR DANIEL ASSERTED THAT "THE FIXED PLATFORMS
OUT THERE DO NOT EVEN TOUCH THE WATERS EXCEPT FOR THE SUPPORTING PIPES
OR 'LEGS' WHICH GO THROUGH THE WATER DOWN INTO THE GROUND.  I THINK YOU
CAN TREAT THOSE PLATFORMS AS CONNECTED WITH THE SOIL AND DEVELOPMENT OF
THE SOIL RATHER THAN TREATING THEM AS VESSELS."  HEARINGS 22. 
SIMILARLY, ACTING SECRETARY OF THE TREASURY ROSE OPINED IN A LETTER TO
THE COMMITTEE THAT THESE ISLANDS MIGHT NOT EVEN BE CONSIDERED TO BE
"UPON NAVIGABLE WATERS" FOR THE PURPOSE OF APPLYING LAWS REQUIRING
SAFETY LIGHTS.  HEARINGS 53.  A SPECIFIC PROVISION WAS ADDED TO THE
STATUTE TO PERMIT SAFETY REGULATION.  SEC. 4(E), 43 U.S.C. 1333(E). 
OBVIOUSLY THESE ISLANDS WERE NOT CONSTRUCTED PRINCIPALLY AS AIDS TO
NAVIGATION AS RESPONDENTS CONTEND, CF. PURE OIL CO. V. SNIPES, 293 F.2D
60 (C.A. 5TH CIR. 1961), BUT WERE INSTEAD HAZARDS TO NAVIGATION
REQUIRING WARNING FACILITIES.  GOVERNOR KENNON OF LOUISIANA VOICED
STRONG OPPOSITION, HEARINGS 449-485, AS DID SENATOR LONG OF THAT STATE,
E.G., HEARINGS 275-278.  SEE ALSO HEARINGS 513-518, 545, 612.  AND AT
HEARINGS 644-645, THE INAPPROPRIATENESS OF APPLYING THE LAW OF THE
OWNER OF THE ARTIFICIAL ISLAND OR SUBSOIL LEASE, RATHER THAN THE LAW OF
THE ADJACENT STATE, WAS GIVEN SPECIAL EMPHASIS. 

/10/ SEE LETTER TO SENATOR CORDON FROM ASSISTANT ATTORNEY GENERAL
RANKIN, HEARINGS 700; TESTIMONY OF MR. RANKIN, HEARINGS 644-645, 664
665, 652-653. 

/11/  IN THE OPENING DISCUSSION OF THE ORIGINAL DRAFT OF THE BILL,
TREATING THESE ISLANDS AS VESSELS, SENATOR CORDON REMARKED:  "IT IS THE
VIEW OF THE CHAIRMAN THAT WHEN THESE INDIVIDUALS LEAVE THEIR VESSELS
AND BOARD THIS STRUCTURE, THEY ARE SUBJECT TO THE LAW THAT OPERATES ON
THE STRUCTURE, WHICH IN THIS INSTANCE IS THE SAME LAW THAT OPERATES ON
BOARD A SHIP, BUT BECOMES THAT ONLY BECAUSE OF THIS ACT."  HEARINGS 9. 
AND AT THE END OF THE HEARINGS, WHEN THE SENATORS WERE QUESTIONING AN
ADMIRALTY LAWYER ON THE TREATMENT THESE STRUCTURES WOULD RECEIVE ABSENT
ANY STATUTORY PROVISION, HE INFORMED THEM THAT EVEN A LIGHTHOUSE WOULD
BE TREATED AS LAND, EXCEPT INSOFAR AS IT WAS SUBJECT TO ADMIRALTY
JURISDICTION AS AN AID TO NAVIGATION.  HEARINGS 669-670.     /12/  AN
ADMIRALTY EXPERT QUESTIONED BY THE COMMITTEE TOOK THE POSITION THAT
APPLICATION OF MARITIME LAW WOULD BE UNWISE.  "MARITIME LAW IN THE
STRICT SENSE HAS NEVER HAD TO DEAL WITH THE RESOURCES IN THE GROUND
BENEATH THE SEA, AND ITS WHOLE TENOR IS ILL ADAPTED FOR THAT PURPOSE." 
HEARINGS 668.  SINCE THE ACT TREATS SEABED, SUBSOIL, AND ARTIFICIAL
ISLANDS THE SAME, DROPPING ANY REFERENCE TO SPECIAL TREATMENT FOR
PRESUMPTIVE VESSELS, THE MOST SENSIBLE INTERPRETATION OF CONGRESS'
REACTION TO THIS TESTIMONY IS THAT ADMIRALTY TREATMENT WAS ESCHEWED
ALTOGETHER, EXCEPT TO THE EXTENT THAT THE EXTENSION OF ADMIRALTY ACT
MIGHT MAKE IT APPLICABLE. 

PHILIP E. HENDERSON ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WERE A. DEUTSCHE O'NEAL AND GEORGE ARCENEAUX, JR. 

JAMES E. DIAZ ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE W. FORD REESE, RICHARD C. BALDWIN, AND JAMES E. BLAZEK. 
..END :











RED LION BROADCASTING CO. V. FCC., 395 U.S. 367 


       RED LION BROADCASTING CO., INC., ET AL. V. FEDERAL

           COMMUNICATIONS COMMISSION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

      DISTRICT OF COLUMBIA CIRCUIT. 

        NO. 2.  ARGUED APRIL 2-3, 1969.-- DECIDED JUNE 9, 1969. 

/1/ 


THE FEDERAL COMMUNICATIONS COMMISSION (FCC) HAS FOR MANY YEARS
IMPOSED ON BROADCASTERS A "FAIRNESS DOCTRINE," REQUIRING THAT PUBLIC
ISSUES BE PRESENTED BY BROADCASTERS AND THAT EACH SIDE OF THOSE ISSUES
BE GIVEN FAIR COVERAGE.  IN NO. 2, THE FCC DECLARED THAT PETITIONER RED
LION BROADCASTING CO. HAD FAILED TO MEET ITS OBLIGATION UNDER THE
FAIRNESS DOCTRINE WHEN IT CARRIED A PROGRAM WHICH CONSTITUTED A
PERSONAL ATTACH ON ONE COOK, AND ORDERED IT TO SEND A TRANSCRIPT OF THE
BROADCAST TO COOK AND PROVIDE REPLY TIME, WHETHER OR NOT COOK WOULD PAY
FOR IT.  THE COURT OF APPEALS UPHELD THE FCC'S POSITION.  AFTER THE
COMMENCEMENT OF THE RED LION LITIGATION THE FCC BEGAN A RULE-MAKING
PROCEEDING TO MAKE THE PERSONAL ATTACK ASPECT OF THE FAIRNESS DOCTRINE
MORE PRECISE AND MORE READILY ENFORCEABLE, AND TO SPECIFY ITS RULES
RELATING TO POLITICAL EDITORIALS.  THE RULES, AS ADOPTED AND AMENDED,
WERE HELD UNCONSTITUTIONAL BY THE COURT OF APPEALS IN RTNDA (NO. 717),
AS ABRIDGING THE FREEDOMS OF SPEECH AND PRESS.  HELD: 

1.  THE HISTORY OF THE FAIRNESS DOCTRINE AND OF RELATED LEGISLATION
SHOWS THAT THE FCC'S ACTION IN THE RED LION CASE DID NOT EXCEED ITS
AUTHORITY, AND THAT IN ADOPTING THE NEW REGULATIONS THE FCC WAS
IMPLEMENTING CONGRESSIONAL POLICY.  PP. 375-386. 

(A) THE FAIRNESS DOCTRINE BEGAN SHORTLY AFTER THE FEDERAL RADIO
COMMISSION WAS ESTABLISHED TO ALLOCATE FREQUENCIES AMONG COMPETING
APPLICANTS IN THE PUBLIC INTEREST, AND INSOFAR AS THERE IS AN
AFFIRMATIVE OBLIGATION OF THE BROADCASTER TO SEE THAT BOTH SIDES ARE
PRESENTED, THE PERSONAL ATTACK DOCTRINE AND REGULATIONS DO NOT DIFFER
FROM THE FAIRNESS DOCTRINE.  PP. 375-379. 

(B) THE FCC'S STATUTORY MANDATE TO SEE THAT BROADCASTERS OPERATE IN
THE PUBLIC INTEREST AND CONGRESS' REAFFIRMATION, IN THE 1959 AMENDMENT
TO SEC. 315 OF THE COMMUNICATIONS ACT, OF THE FCC'S VIEW THAT THE
FAIRNESS DOCTRINE INHERED IN THE PUBLIC INTEREST STANDARD, SUPPORT THE
CONCLUSION THAT THE DOCTRINE AND ITS COMPONENT PERSONAL ATTACK AND
POLITICAL EDITORIALIZING REGULATIONS ARE A LEGITIMATE EXERCISE OF
CONGRESSIONALLY DELEGATED AUTHORITY.  PP. 379-386. 

2.  THE FAIRNESS DOCTRINE AND ITS SPECIFIC MANIFESTATIONS IN THE
PERSONAL ATTACK AND POLITICAL EDITORIAL RULES DO NOT VIOLATE THE FIRST
AMENDMENT.  PP. 386-401. 

(A) THE FIRST AMENDMENT IS RELEVANT TO PUBLIC BROADCASTING, BUT IT
IS THE RIGHT OF THE VIEWING AND LISTENING PUBLIC, AND NOT THE RIGHT OF
THE BROADCASTERS, WHICH IS PARAMOUNT.  PP. 386-390. 

(B) THE FIRST AMENDMENT DOES NOT PROTECT PRIVATE CENSORSHIP BY
BROADCASTERS WHO ARE LICENSED BY THE GOVERNMENT TO USE A SCARCE
RESOURCE WHICH IS DENIED TO OTHERS.  PP. 390-392. 

(C) THE DANGER THAT LICENSEES WILL ELIMINATE COVERAGE OF
CONTROVERSIAL ISSUES AS A RESULT OF THE PERSONAL ATTACK AND POLITICAL
EDITORIAL RULES IS AT BEST SPECULATIVE, AND, IN ANY EVENT, THE FCC HAS
AUTHORITY TO GUARD AGAINST THIS DANGER.  PP. 392-395. 

(D) THERE WAS NOTHING VAGUE ABOUT THE FCC'S SPECIFIC RULING IN THE
RED LION CASE AND THE REGULATIONS AT ISSUE IN NO. 717 COULD BE EMPLOYED
IN PRECISELY THE SAME WAY AS THE FAIRNESS DOCTRINE IN RED LION.  IT IS
NOT NECESSARY TO DECIDE EVERY ASPECT OF THE FAIRNESS DOCTRINE TO DECIDE
THESE CASES.  PROBLEMS INVOLVING MORE EXTREME APPLICATIONS OR MORE
DIFFICULT CONSTITUTIONAL QUESTIONS WILL BE DEALT WITH IF AND WHEN THEY
ARISE.  PP. 395-396. 

(E) IT HAS NOT BEEN SHOWN THAT THE SCARCITY OF BROADCAST
FREQUENCIES, WHICH IMPELLED GOVERNMENTAL REGULATION, IS ENTIRELY A
THING OF THE PAST, AS NEW USES FOR THE FREQUENCY SPECTRUM HAVE KEPT
PACE WITH IMPROVED TECHNOLOGY AND MORE EFFICIENT UTILIZATION OF THAT
SPECTRUM.  PP. 396-400. 

NO. 2, 127 U.S.APP.D.C. 129, 381 F.2D 908, AFFIRMED; NO. 717, 400
F.2D 1002, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL COMMUNICATIONS COMMISSION HAS FOR MANY YEARS IMPOSED ON
RADIO AND TELEVISION BROADCASTERS THE REQUIREMENT THAT DISCUSSION OF
PUBLIC ISSUES BE PRESENTED ON BROADCAST STATIONS, AND THAT EACH SIDE OF
THOSE ISSUES MUST BE GIVEN FAIR COVERAGE.  THIS IS KNOWN AS THE
FAIRNESS DOCTRINE, WHICH ORIGINATED VERY EARLY IN THE HISTORY OF
BROADCASTING AND HAS MAINTAINED ITS PRESENT OUTLINES FOR SOME TIME.  IT
IS AN OBLIGATION WHOSE CONTENT HAS BEEN DEFINED IN A LONG SERIES OF FCC
RULINGS IN PARTICULAR CASES, AND WHICH IS DISTINCT FROM THE STATUTORY
REQUIREMENT OF SEC. 315 OF THE COMMUNICATIONS ACT /1A/  THAT EQUAL TIME
BE ALLOTTED ALL QUALIFIED CANDIDATES FOR PUBLIC OFFICE.  TWO ASPECTS OF
THE FAIRNESS DOCTRINE, RELATING TO PERSONAL ATTACKS IN THE CONTEXT OF
CONTROVERSIAL PUBLIC ISSUES AND TO POLITICAL EDITORIALIZING, WERE
CODIFIED MORE PRECISELY IN THE FORM OF FCC REGULATIONS IN 1967.  THE
TWO CASES BEFORE US NOW, WHICH WERE DECIDED SEPARATELY BELOW, CHALLENGE
THE CONSTITUTIONAL AND STATUTORY BASES OF THE DOCTRINE AND COMPONENT
RULES.  RED LION INVOLVES THE APPLICATION OF THE FAIRNESS DOCTRINE TO A
PARTICULAR BORAD BROADCAST, AND RTNDA ARISES AS AN ACTION TO REVIEW THE
FCC'S 1967 PROMULGATION OF THE PERSONAL ATTACK AND POLITICAL
EDITORIALIZING REGULATIONS, WHICH WERE LAID DOWN AFTER THE RED LION
LITIGATION HAD BEGUN. 

        I.

        A. 

THE RED LION BROADCASTING COMPANY IS LICENSED TO OPERATE A
PENNSYLVANIA RADIO STATION, WGCB.  ON NOVEMBER 27, 1964, WGCB CARRIED A
15-MINUTE BROADCAST BY THE REVEREND BILLY JAMES HARGIS AS PART OF A
"CHRISTIAN CRUSADE SERIES.  A BOOK BY FRED J. COOK ENTITLED "GOLDWATER-
EXTREMIST ON THE RIGHT" WAS DISCUSSED BY HARGIS, WHO SAID THAT COOK
HAD BEEN FIRED BY A NEWSPAPER FOR MAKING FALSE CHARGES AGAINST CITY
OFFICIALS; THAT COOK HAD THEN WORKED FOR A COMMUNIST-AFFILIATED
PUBLICATION; THAT HE HAD DEFENDED ALGER HISS AND ATTACKED J. EDGAR
HOOVER AND THE CENTRAL INTELLIGENCE AGENCY; AND THAT HE HAD NOW WRITTEN
A "BOOK TO SMEAR AND DESTROY BARRY GOLDWATER."  /2/  WHEN COOK HEARD OF
THE BROADCAST HE CONCLUDED THAT HE HAD BEEN PERSONALLY ATTACKED AND
DEMANDED FREE REPLY TIME, WHICH THE STATION REFUSED.  AFTER AN EXCHANGE
OF LETTERS AMONG COOK, RED LION, AND THE FCC, THE FCC DECLARED THAT THE
HARGIS BROADCAST CONSTITUTED A PERSONAL ATTACK ON COOK; THAT RED LION
HAD FAILED TO MEET ITS OBLIGATION UNDER THE FAIRNESS DOCTRINE AS
EXPRESSED IN TIMES-MIRROR BROADCASTING CO., 24 P & F RADIO REG. 404
(1962), TO SEND A TAPE, TRANSCRIPT, OR SUMMARY OF THE BROADCAST TO COOK
AND OFFER HIM REPLY TIME; AND THAT THE STATION MUST PROVIDE REPLY TIME
WHETHER OR NOT COOK WOULD PAY FOR IT.  ON REVIEW IN THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, /3/  THE FCC'S POSITION
WAS UPHELD AS CONSTITUTIONAL AND OTHERWISE PROPER.  127 U.S.APP.D.C.
129, 381 F.2D 908 (1967). 

        B. 

NOT LONG AFTER THE RED LION LITIGATION WAS BEGUN, THE FCC ISSUED A
NOTICE OF PROPOSED RULE MAKING, 31 FED.REG.  5710, WITH AN EYE TO
MAKING THE PERSONAL ATTACK ASPECT OF THE FAIRNESS DOCTRINE MORE PRECISE
AND MORE READILTY ENFORCEABLE, AND TO SPECIFYING ITS RULES RELATING TO
POLITICAL EDITORIALS.  AFTER CONSIDERING WRITTEN COMMENTS SUPPORTING
AND OPPOSING THE RULES, THE FCC ADOPTED THEM SUBSTANTIALLY AS PROPOSED,
32 FED.REG.  10303.  TWICE AMENDED, 32 FED.REG.  11531, 33 FED.REG. 
5362, THE RULES WERE HELD UNCONSTITUTIONAL IN THE RTNDA LITIGATION BY
THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT, ON REVIEW OF THE RULE
MAKING PROCEEDING, AS ABRIDGING THE FREEDOMS OF SPEECH AND PRESS.  400
F.2D 1002 (1968). 

AS THEY NOW STAND AMENDED, THE REGULATIONS READ AS FOLLOWS: 

"PERSONAL ATTACKS; POLITICAL EDITORIALS.  "(A) WHEN, DURING THE

  PRESENTATION OF VIEWS ON A CONTROVERSIAL ISSUE OF PUBLIC

  IMPORTANCE, AN ATTACK IS MADE UPON THE HONESTY, CHARACTER,

  INTEGRITY OR GROUP, THE LICENSEE SHALL, WITHIN A REASONABLE TIME

  AND IN NO EVENT LATER THAN 1 WEEK AFTER THE ATTACK, TRANSMIT TO

  THE PERSON OR GROUP ATTACKED (1) NOTIFICATION OF THE DATE, TIME

  AND IDENTIFICATION OF THE BROADCAST; (2) A SCRIPT OR TAPE (OR AN

  ACCURATE SUMMARY IF A SCRIPT OR TAPE IS NOT AVAILABLE) OF THE

  ATTACK; AND (3) AN OFFER OF A REASONABLE OPPORTUNITY TO RESPOND

  OVER THE LICENSEE'S FACILITIES. 

     "(B) THE PROVISIONS OF PARAGRAPH (A) OF THIS SECTION SHALL NOT

  BE APPLICABLE (1) TO ATTACKS ON FOREIGN GROUPS OR FOREIGN PUBLIC

  FIGURES; (2) TO PERSONAL ATTACKS WHICH ARE MADE BY LEGALLY

  QUALIFIED CANDIDATES, THEIR AUTHORIZED SPOKESMEN, OR THOSE

ASSOCIATED WITH THEM IN THE CAMPAIGN, ON OTHER SUCH CANDIDATES,

  THEIR AUTHORIZED SPOKESMEN, OR PERSONS ASSOCIATED WITH THE

  CANDIDATES IN THE CAMPAIGN; AND (3) TO BONA FIDE NEWSCASTS, BONA

  FIDE NEWS INTERVIEWS, AND ON-THE-SPOT COVERAGE OF A BONA FIDE

  NEWS EVENT (INCLUDING COMMENTARY OR ANALYSIS CONTAINED IN THE

  FOREGOING PROGRAMS, BUT THE PROVISIONS OF PARAGRAPH (A) OF THIS

  SECTION SHALL BE APPLICABLE TO EDITORIALS OF THE LICENSEE). 

     "NOTE:  THE FAIRNESS DOCTRINE IS APPLICABLE TO SITUATIONS

  COMING WITHIN ((3)), ABOVE, AND, IN A SPECIFIC FACTUAL SITUATION,

  MAY BE APPLICABLE IN THE GENERAL AREA OF POLITICAL BROADCASTS

 ((2)), ABOVE.  SEE, SECTION 315(A) OF THE ACT, 47 U.S.C. 315(A);

  PUBLIC NOTICE:  APPLICABILITY OF THE FAIRNESS DOCTRINE IN THE

  HANDLING OF CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE.  29 F.R.

  10415.  THE CATEGORIES LISTED IN ((3)) ARE THE SAME AS THOSE

  SPECIFIED IN SECTION 315(A) OF THE ACT. 

     "(C) WHERE A LICENSEE, IN AN EDITORIAL, (I) ENDORSES OR (II)

  OPPOSES A LEGALLY QUALIFIED CANDIDATE OR CANDIDATES, THE LICENSEE

  SHALL, WITHIN 24 HOURS AFTER THE EDITORIAL, TRANSMIT TO

  RESPECTIVELY (I) THE OTHER QUALIFIED CANDIDATE OR CANDIDATES FOR

  THE SAME OFFICE OR (II) THE CANDIDATE OPPOSED IN THE EDITORIAL

  (1) NOTIFICATION OF THE DATE AND TIME OF THE EDITORIAL; (2) A

  SCRIPT OR TAPE OF THE EDITORIAL; AND (3) AN OFFER OF A REASONABLE

 OPPORTUNITY FOR A CANDIDATE OR A SPOKESMAN OF THE CANDIDATE TO

  RESPOND OVER THE LICENSEE'S FACILITIES:  PROVIDED, HOWEVER, THAT

  WHERE SUCH EDITORIALS ARE BROADCAST WITHIN 72 HOURS PRIOR TO THE

  DAY OF THE ELECTION, THE LICENSEE SHALL COMPLY WITH THE

  PROVISIONS OF THIS PARAGRAPH SUFFICIENTLY FAR IN ADVANCE OF THE

  BROADCAST TO ENABLE THE CANDIDATE OR CANDIDATES TO HAVE A

  REASONABLE OPPORTUNITY TO PREPARE A RESPONSE AND TO PRESENT IT IN

  A TIMELY FASHION."  47 CFR 73.123, 73.300, 73.598, 73.679, (ALL

  IDENTICAL). 

        C. 

BELIEVING THAT THE SPECIFIC APPLICATION OF THE FAIRNESS DOCTRINE IN
RED LION, AND THE PROMULGATION OF THE REGULATIONS IN RTNDA, ARE BOTH
AUTHORIZED BY CONGRESS AND ENHANCE RATHER THAN ABRIDGE THE FREEDOMS OF
SPEECH AND PRESS PROTECTED BY THE FIRST AMENDMENT, WE HOLD THEM VALID
AND CONSTITUTIONAL, REVERSING THE JUDGMENT BELOW IN RTNDA AND AFFIRMING
THE JUDGMENT BELOW IN RED LION. 

        II. 

THE HISTORY OF THE EMERGENCE OF THE FAIRNESS DOCTRINE AND OF THE
RELATED LEGISLATION SHOWS THAT THE COMMISSION'S ACTION IN THE RED LION
CASE DID NOT EXCEED ITS AUTHORITY, AND THAT IN ADOPTING THE NEW
REGULATIONS THE COMMISSION WAS IMPLEMENTING CONGRESSIONAL POLICY RATHER
THAN EMBARKING ON A FROLIC OF ITS OWN. 

A. 

BEFORE 1927, THE ALLOCATION OF FREQUENCIES WAS LEFT ENTIRELY TO THE
PRIVATE SECTOR, AND THE RESULT WAS CHAOS.  /5/ IT QUICKLY BECAME
APPARENT THAT BROADCAST FREQUENCIES CONSTITUTED A SCARCE RESOURCE WHOSE
USE COULD BE REGULATED AND RATIONALIZED ONLY BY THE GOVERNMENT. 
WITHOUT GOVERNMENTAL CONTROL, THE MEDIUM WOULD BE OF LITTLE USE BECAUSE
OF THE CACAPHONY OF COMPETING VOICES, NONE OF WHICH COULD BE CLEARLY
AND PREDICTABLY HEARD.  /5/  CONSEQUENTLY, THE FEDERAL RADIO COMMISSION
WAS ESTABLISHED TO ALLOCATE FREQUENCIES AMONG COMPETING APPLICANTS IN A
MANNER RESPONSIVE TO THE PUBLIC "CONVENIENCE, INTEREST, OR NECESSITY." 
/6/ 

VERY SHORTLY THEREAFTER THE COMMISSION EXPRESSED ITS VIEW THAT THE
"PUBLIC INTEREST REQUIRES AMPLE PLAY FOR THE FREE AND FAIR COMPETITION
OF OPPOSING VIEWS, AND THE COMMISSION BELIEVES THAT THE PRINCIPLE
APPLIES .. . TO ALL DISCUSSIONS OF ISSUES OF IMPORTANCE TO THE
PUBLIC."  GREAT LAKES BROADCASTING CO., 3 F.R.C.ANN.REP.  32, 33
(1929), REV'D ON OTHER GROUNDS, 59 APP.D.C. 197, 37 F.2D 993, CERT.
DISMISSED, 281 U.S. 706 (1930).  THIS DOCTRINE WAS APPLIED THROUGH
DENIAL OF LICENSE RENEWALS OR CONSTRUCTION PERMITS, BOTH BY THE FRC,
TRINITY METHODIST CHURCH, SOUTH V. FRC, 61 APP.D.C. 311, 62 F.2D 850
(1932), CERT. DENIED, 288 U.S. 599 (1933), AND ITS SUCCESSOR FCC, YOUNG
PEOPLE'S ASSOCIATION FOR THE PROPAGATION OF THE GOSPEL, 7 F.C.C. 178
(1938).  AFTER AN ENTENDED PERIOD DURING WHICH THE LICENSEE WAS OBLIGED
NOT ONLY TO COVER AND TO COVER FAIRLY THE VIEWS OF OTHERS, BUT ALSO TO
REFRAIN FROM EXPRESSING HIS OWN PERSONAL VIEWS, MAYFLOWER BROADCASTING
CORP., 8 F.C.C. 333 (1940), THE LATTER LIMITATION ON THE LICENSEE WAS
ABANDONED AND THE DOCTRINE DEVELOPED INTO ITS PRESENT FORM. 

THERE IS A TWOFOLD DUTY LAID DOWN BY THE FCC'S DECISIONS AND
DESCRIBED BY THE 1949 REPORT ON EDITORIALIZING BY BROADCAST LICENSEES,
13 F.C.C. 1246 (1949).  THE BROADCASTER MUST GIVE ADQUATE COVERAGE TO
PUBLIC ISSUES, UNITED BROADCASTING CO., 10 F.C.C. 515 (1945), AND
COVERAGE MUST BE FAIR IN THAT IT ACCURATELY REFLECTS THE OPPOSING
VIEWS.  NEW BROADCASTING CO., 6 P & F RADIO REG. 258 (1950).  THIS MUST
BE DONE AT THE BROADCASTER'S OWN EXPENSE IF SPONSORSHIP IS
UNAVAILABLE.  CULLMAN BROADCASTING CO., 25 P & F RADIO REG. 895
(1963).  MOREOVER, THE DUTY MUST BE MET BY PROGRAMMING OBTAINED AT THE
LICENSEE'S OWN INITIATIVE IF AVAILABLE FROM NO OTHER SOURCE.  JOHN J.
DEMPSEY, 6 P & F RADIO REG. 615 (1950); SEE METROPOLITAN BROADCASTING
CORP., 19 P & F RADIO REG. 602 (1960); THE EVENING NEWS ASSN., 6 P & F
RADIO REG. 283 (1950).  THE FEDERAL RADIO COMMISSION HAD IMPOSED THESE
TWO BASIC DUTIES ON BROADCASTERS SINCE THE OUTSET, GREAT LAKE
BROADCASTING CO., 3 F.R.C.ANN.REP.  32 (1929), REV'D ON OTHER GROUNDS,
59 APP.D.C. 197, 37 F.2D 993, CERT. DISMISSED, 281 U.S. 706 (1930);
CHICAGO FEDERATION OF LABOR V. FRC, 3 F.R.C.ANN.REP.  36 (1929), AFF'D
59 APP.D.C. 333, 41 F.2D 422 (1930); KFKB BROADCASTING ASSN. V. FRC, 60
APP.D.C. 79, 47 F.2D 670 (1931), AND IN PARTICULAR RESPECTS THE
PERSONAL ATTACK RULES AND REGULATIONS AT ISSUE HERE HAVE SPELLED THEM
OUT IN GREATER DETAIL. 

WHEN A PERSONAL ATTACK HAS BEEN MADE ON A FIGURE INVOLVED IN A
PUBLIC ISSUE, BOTH THE DOCTRINE OF CASES SUCH AS RED LION AND TIMES
MIRROR BROADCASTING CO., 24 F & P RADIO REG. 404 (1962), AND ALSO THE
1967 REGULATIONS AT ISSUE IN RTNDA REQUIRE THAT THE INDIVIDUAL ATTACKED
HIMSELF BE OFFERED AN OPPORTUNITY TO RESPOND.  LIKEWISE, WHERE ON
CANDIDATE IS ENDORSED IN A POLITICAL EDITORIAL, THE OTHER CANDIDATES
MUST THEMSELVES BE OFFERED REPLY TIME TO USE PERSONALLY OR THROUGH A
SPOKESMAN.  THESE OBLIGATIONS DIFFER FROM THE GENERAL FAIRNESS
REQUIREMENT THAT ISSUES BE PRESENTED, AND PRESENTED WITH COVERAGE OF
COMPETING VIEWS, IN THAT THE BROADCASTER DOES NOT HAVE THE OPTION OF
PRESENTING THE ATTACKED PARTY'S SIDE HIMSELF OR CHOOSING A THIRD PARTY
TO REPRESENT THAT SIDE.  BUT INSOFAR AS THERE IS AN OBLIGATION OF THE
BROADCASTER TO SEE THAT BOTH SIDES ARE PRESENTED, AND INSOFAR AS THAT
IS AN AFFIRMATIVE OBLIGATION, THE PERSONAL ATTACK DOCTRINE AND
REGULATIONS DO NOT DIFFER FROM THE PRECEDING FAIRNESS DOCTRINE.  THE
SIMPLE FACT THAT THE ATTACKED MEN OR UNENDORSED CANDIDATES MAY RESPOND
THEMSELVES OR THROUGH AGENTS IS NOT A CRITICAL DISTINCTION, AND INDEED,
IT IS NOT UNREASONABLE FOR THE FCC TO CONCLUDE THAT THE OBJECTIVE OF
ADEQUATE PRESENTATION OF ALL SIDES MAY BEST BE SERVED BY ALLOWING THOSE
MOST CLOSELY AFFECTED TO MAKE THE RESPONSE, RATHER THAN LEAVING THE
RESPONSE IN THE HANDS OF THE STATION WHICH HAS ATTACKED THEIR
CANDIDACIES, ENDORSED THEIR OPPONENTS, OR CARRIED A PERSONAL ATTACK
UPON THEM. 

        B. 

THE STATUTORY AUTHORITY OF THE FCC TO PROMULGATE THESE REGULATIONS
DERIVES FROM THE MANDATE TO THE "COMMISSION FROM TIME TO TIME, AS
PUBLIC CONVENIENCE, INTEREST, OR NECESSITY REQUIRES" TO PROMULGATE
"SUCH RULES AND REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS AND
CONDITIONS . . . AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF
THIS CHAPTER.  . . . "  47 U.S.C. 303 AND 303(R).  /7/  THE COMMISSION
IS SPECIFICALLY DIRECTED TO CONSIDER THE DEMANDS OF THE PUBLIC INTEREST
IN THE COURSE OF GRANTING LICENSES, 47 U.S.C. 307(A), 309(A); RENEWING
THEM, 47 U.S.C. 307; AND MODIFYING THEM.  IBID.  MOREOVER, THE FCC HAS
INCLUDED AMONG THE CONDITIONS OF THE RED LION LICENSE ITSELF THE
REQUIREMENT THAT OPERATION OF THE STATION BE CARRIED OUT IN THE PUBLIC
INTEREST, 47 U.S.C. 309(H).  THIS MANDATE TO THE FCC TO ASSURE THAT
BROADCASTERS OPERATE IN THE PUBLIC INTEREST IS A BROAD ONE, A POWER
"NOT NIGGARDLY BUT EXPANSIVE," NATIONAL BROADCASTING CO. V. UNITED
STATES, 319 U.S. 190, 219 (1943), WHOSE VALIDITY WE HAVE LONG UPHELD. 
FCC V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 138 (1940); FCC V.
RCA COMMUNICATIONS, INC., 346 U.S. 86, 90 (1953); FRC V. NELSON BROS.
BOND & MORTGAGE CO., 389 U.S. 266, 285 (1933).  IT IS BROAD ENOUGH TO
ENCOMPASS THESE REGULATIONS.     THE FAIRNESS DOCTRINE FINDS SPECIFIC
RECOGNITION IN STATUTORY FORM, IS IN PART MODELED ON EXPLICIT STATUTORY
PROVISIONS RELATING TO POLITICAL CANDIDATES, AND IS APPROVINGLY
REFLECTED IN LEGISLATIVE HISTORY. 

IN 1959 THE CONGRESS AMENDED THE STATUTORY REQUIREMENT OF SEC. 315
THAT EQUAL TIME BE ACCORDED EACH POLITICAL CANDIDATE TO EXCEPT CERTAIN
APPEARANCES ON NEWS PROGRAMS, BUT ADDED THAT THIS CONSTITUTED NO
EXCEPTION "FROM THE OBLIGATION IMPOSED UPON THEM UNDER THIS ACT TO
OPERATE IN THE PUBLIC INTEREST AND TO AFFORD REASONABLE OPPORTUNITY FOR
THE DISCUSSION OF CONFLICTING VIEWS ON ISSUES OF PUBLIC IMPORTANCE." 
ACT OF SEPTEMBER 14, 1959, SEC. 1, 73 STAT. 557, AMENDING 47 U.S.C.
315(A).  THIS LANGUAGE MAKES IT VERY PLAIN THAT CONGRESS, IN 1959,
ANNOUNCED THAT THE PHRASE (PUBLIC INTEREST," WHICH HAD BEEN IN THE ACT
SINCE 1927, IMPOSED A DUTY ON BROADCASTERS TO DISCUSS BOTH SIDES OF
CONTROVERSIAL PUBLIC ISSUES.  IN OTHER WORDS, THE AMENDMENT VINDICATED
THE FCC'S GENERAL VIEW THAT THE FAIRNESS DOCTRINE INHERED IN THE PUBLIC
INTEREST STANDARD.  SUBSEQUENT LEGISLATION DECLARING THE INTENT OF AN
EARLIER STATUTE IS ENTITLED TO GREAT WEIGHT IN STATUTORY CONSTRUCTION. 
/8/  AND HERE THIS PRINCIPLE IS GIVEN SPECIAL FORCE BY THE EQUALLY
VENERABLE PRINCIPLE THAT THE CONSTRUCTION OF A STATUTE BY THOSE CHARGED
WITH ITS EXECUTION SHOULD BE FOLLOWED UNLESS THERE ARE COMPELLING
INDICATIONS THAT IT IS WRONG, /9/  ESPECIALLY WHEN CONGRESS HAS REFUSED
TO ALTER THE ADMINISTRATIVE CONSTRUCTION.  /10 HERE, THE CONGRESS HAS
NOT JUST KEPT ITS SILENCE BY REFUSING TO OVERTURN THE ADMINISTRATIVE
CONSTRUCTION, /11/  BUT HAS RATIFIED IT WITH POSITIVE LEGISLATION. 
THIRTY YEARS OF CONSISTENT ADMINISTRATIVE CONSTRUCTION LEFT UNDISTURBED
BY CONGRESS UNTIL 1959, WHEN THAT CONSTRUCTION WAS EXPRESSLY ACCEPTED,
REINFORCE THE NATURAL CONCLUSION THAT THE PUBLIC INTEREST LANGUAGE OF
THE ACT AUTHORIZED THE COMMISSION TO REQUIRE LICENSEES TO USE THEIR
STATIONS FOR DISCUSSION OF PUBLIC ISSUES, AND THAT THE FCC IS FREE TO
IMPLEMENT THIS REQUIREMENT BY REASONABLE RULES AND REGULATIONS WHICH
FALL SHORT OF ABRIDGMENT OF THE FREEDOM OF SPEECH AND PRESS, AND OF THE
CENSORSHIP PROSCRIBED BY SEC. 326 OF THE ACT.  /12/ 

THE OBJECTIVES OF SEC. 315 THEMSELVES COULD READILY BE CIRCUMVENTED
BUT FOR THE COMPLEMENTARY FAIRNESS DOCTRINE RATIFIED BY SEC. 315.  THE
FAMILY, FRIENDS, CAMPAIGN MANAGERS, OR OTHER SUPPORTERS.  WITHOUT THE
FAIRNESS DOCTRINE, THEN, A LICENSEE COULD BAN ALL CAMPAIGN APPEARANCES
BY CANDIDATES THEMSELVES FROM THE AIR /13/  AND PROCEED TO DELIVER OVER
HIS STATION ENTIRELY TO THE SUPPORTERS OF ONE SLATE OF CANDIDATES, TO
THE EXCLUSION OF ALL OTHERS.  IN THIS WAY THE BROADCASTER COULD HAVE A
FAR GREATER IMPACT ON THE FAVORED CANDIDACY THAN HE COULD BY SIMPLY
ALLOWING A SPOT APPEARANCE BY THE CANDIDATE HIMSELF.  IT IS THE
FAIRNESS DOCTRINE AS AN ASPECT OF THE OBLIGATION TO OPERATE IN THE
PUBLIC INTEREST, RATHER THAN SEC. 315, WHICH PROHIBITS THE BROADCASTER
FROM TAKING SUCH A STEP. 

THE LEGISLATIVE HISTORY REINFORCES THIS VIEW OF THE EFFECT OF THE
1959 AMENDMENT.  EVEN BEFORE THE LANGUAGE RELEVANT HERE WAS ADDED, THE
SENATE REPORT ON AMENDING SEC. 315 NOTED THAT "BROADCAST FREQUENCIES
ARE LIMITED AND, THEREFORE, THEY HAVE BEEN NECESSARILY CONSIDERED A
PUBLIC TRUST.  EVERY LICENSEE WHO IS FORTUNATE IN OBTAINING A LICENSE
IS MANDATED TO OPERATE IN THE PUBLIC INTEREST AND HAS ASSUMED THE
OBLIGATION OF PRESENTING IMPORTANT PUBLIC QUESTIONS FAIRLY AND WITHOUT
BIAS."  S. REP. NO. 562, 86TH CONG., 1ST SESS., 8-9 (1959).  SEE ALSO,
SPECIFICALLY ADVERTING TO FEDERAL COMMUNICATIONS COMMISSION DOCTRINE,
ID., AT 13. 

RATHER THAN LEAVE THIS APPROVAL SOLELY IN THE LEGISLATIVE HISTORY,
SENATOR PROXMIRE SUGGESTED AN AMENDMENT TO MAKE IT PART OF THE ACT. 
105 CONG.REC.  14457.  THIS AMENDMENT, WHICH SENATOR PASTORE, A MANAGER
OF THE BILL AND A RANKING MEMBER OF THE SENATE COMMITTEE, CONSIDERED
"RATHER SURPLUSAGE," 105 CONG.REC.  14462, CONSTITUTED A POSITIVE
STATEMENT OF DOCTRINE /14/  AND WAS ALTERED TO THE PRESENT MERELY
APPROVING LANGUAGE IN THE CONFERENCE COMMITTEE.  IN EXPLAINING THE
LANGUAGE TO THE SENATE AFTER THE COMMITTEE CHANGES, SENATOR PASTORE
SAID:  "WE INSISTED THAT THAT PROVISION REMAIN IN THE BILL, TO BE A
CONTINUING REMINDER AND ADMONITION TO THE FEDERAL COMMUNICATIONS
COMMISSION AND TO THE BROADCASTERS ALIKE, THAT WE WERE NOT ABANDONING
THE PHILSOPHY THAT GAVE BIRTH TO SECTION 315, IN GIVING THE PEOPLE THE
RIGHT TO HAVE A FULL AND COMPLETE DISCLOSURE OF CONFLICTING VIEWS ON
NEWS OF INTEREST TO THE PEOPLE OF THE COUNTRY."  105 CONG.REC.  17830. 
SENATOR SCOTT, ANOTHER SENATE MANAGER, ADDED THAT:  "IT IS INTENDED TO
ENCOMPASS ALL LEGITIMATE AREAS OF PUBLIC IMPORTANCE WHICH ARE
CONTROVERSIAL," NOT JUST POLITICS.  105 CONG.REC.  17831. 

IT IS TRUE THAT THE PERSONAL ATTACK ASPECT OF THE FAIRNESS DOCTRINE
WAS NOT ACTUALLY ADJUDICATED UNTIL AFTER 1959, SO THAT CONGRESS THEN
DID NOT HAVE THOSE RULES SPECIFICALLY BEFORE IT.  HOWEVER, THE
OBLIGATION TO OFFER TIME TO REPLY TO A PERSONAL ATTACK WAS PRESAGED BY
THE FCC'S 1949 REPORT ON EDITORIALIZING, WHICH THE FCC VIEWS AS THE
PRINCIPAL SUMMARY OF ITS RATIO DECIDENDI IN CASES IN THIS AREA: 

"IN DETERMINING WHETHER TO HONOR SPECIFIC REQUESTS FOR TIME, THE
STATION WILL INEVITABLY BE CONFRONTED WITH SUCH QUESTIONS AS . . .
WHETHER THERE MAY NOT BE OTHER AVAILABLE GROUPS OR INDIVIDUALS WHO
MIGHT BE MORE APPROPRIATE SPOKESMEN FOR THE PARTICULAR POINT OF VIEW
THAN THE PERSON MAKING THE REQUEST.  THE LATTER'S PERSONAL INVOLVEMENT
IN THE CONTROVERSY MAY ALSO BE A FACTOR WHICH MUST BE CONSIDERED, FOR
ELEMENTARY CONSIDERATIONS OF FAIRNESS MAY DICTATE THAT TIME BE
ALLOCATED TO A PERSON OR GROUP WHICH HAS BEEN SPECIFICALLY ATTACKED
OVER THE STATION, WHERE OTHERWISE NO SUCH OBLIGATION WOULD EXIST."  13
F.C.C.,AT 1251-1252.  WHEN THE CONGRESS RATIFIED THE FCC'S IMPLICATION
OF A FAIRNESS DOCTRINE IN 1959 IT DID NOT, OF COURSE, APPROVE EVERY
PAST DECISION OR PRONOUNCEMENT BY THE COMMISSION ON THIS SUBJECT, OR
GIVE IT A COMPLETELY FREE HAND FOR THE FUTURE.  THE STATUTORY AUTHORITY
DOES NOT GO SO FAR.  BUT WE CANNOT SAY THAT WHEN A STATION PUBLISHES
PERSONAL ATTACKS OR ENDORSES POLITICAL CANDIDATES, IT IS A
MISCONSTRUCTION OF THE PUBLIC INTEREST STANDARD TO REQUIRE THE STATION
TO OFFER TIME FOR A RESPONSE RATHER THAN TO LEAVE THE RESPONSE ENTIRELY
WITHIN THE CONTROL OF THE STATION WHICH HAS ATTACKED EITHER THE
CANDIDACIES OR THE MEN WHO WISH TO REPLY IN THEIR OWN DEFENSE.  WHEN A
BROADCASTER GRANTS TIME TO A POLITICAL CANDIDATE, CONGRESS ITSELF
REQUIRES THAT EQUAL TIME BE OFFERED TO HIS OPPONENTS.  IT WOULD EXCEED
OUR COMPETENCE TO HOLD THAT THE COMMISSION IS UNAUTHORIZED BY THE
STATUTE TO EMPLOY A SIMILAR DEVICE WHERE PERSONAL ATTACKS OR POLITICAL
EDITORIALS ARE BROADCAST BY A RADIO OR TELEVISION STATION. 

IN LIGHT OF THE FACT THAT THE "PUBLIC INTEREST" IN BROADCASTING
CLEARLY ENCOMPASSES THE PRESENTATION OF VIGOROUS DEBATE OF
CONTROVERSIAL ISSUES OF IMPORTANCE AND CONCERN TO THE PUBLIC; THE FACT
THAT THE FCC HAS RESTED UPON THAT LANGUAGE FROM ITS VERY INCEPTION A
DOCTRINE THAT THESE ISSUES MUST BE DISCUSSED, AND FAIRLY; AND THE FACT
THAT CONGRESS HAS ACKNOWLEDGED THAT THE ANALOGOUS PROVISIONS OF SEC.
315 ARE NOT PRECLUSIVE IN THIS AREA, AND KNOWINGLY PRESERVED THE FCC'S
COMPLEMENTARY EFFORTS, WE THINK THE FAIRNESS DOCTRINE AND ITS COMPONENT
PERSONAL ATTACK AND POLITICAL EDITORIALIZING REGULATIONS ARE A
LEGITIMATE EXERCISE OF CONGRESSINALLY DELEGATED AUTHORITY.  THE
COMMUNICATIONS ACT IS NOT NOTABLE FOR THE PRECISION OF ITS SUBSTANTIVE
STANDARDS AND IN THIS RESPECT THE EXPLICIT PROVISIONS OF SEC. 315, AND
THE DOCTRINE AND RULES AT ISSUE HERE WHICH ARE CLOSELY MODELED UPON
THAT SECTION, ARE FAR MORE EXPLICIT THAN THE GENERALIZED "PUBLIC
INTEREST" STANDARD IN WHICH THE COMMISSION ORDINARILY FINDS ITS SOLE
GUIDANCE, AND WHICH WE HAVE HELD A BROAD BUT ADEQUATE STANDARD BEFORE. 
FCC V. RCA COMMUNICATIONS, INC., 346 U.S. 86, 90 (1953); NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 216- 217 (1943); FCC
V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 138 (1940); FRC V. NELSON
BROS. BOND & MORTGAGE CO., 289 U.S. 266, 285 (1933).  WE CANNOT SAY
THAT THE FCC'S DECLARATORY RULING IN RED LION, OR THE REGULATIONS AT
ISSUE IN RTNDA, ARE BEYOND THE SCOPE OF THE CONGRESSIONALLY CONFERRED
POWER TO ASSURE THAT STATIONS ARE OPERATED BY THOSE WHOSE POSSESSION OF
A LICENSE SERVES "THE PUBLIC INTEREST." 

        III. 

THE BROADCASTERS CHALLENGE THE FAIRNESS DOCTRINE AND ITS SPECIFIC
MANIFESTATIONS IN THE PERSONAL ATTACK AND POLITICAL EDITORIAL RULES ON
CONVENTIONAL FIRST AMENDMENT GROUNDS, ALLEGING THAT THE RULES ABRIDGE
THEIR FREEDOM OF SPEECH AND PRESS.  THEIR CONTENTION IS THAT THE FIRST
AMENDMENT PROTECTS THEIR DESIRE TO USE THEIR ALLOTTED FREQUENCIES
CONTINUOUSLY TO BROADCAST WHATEVER THEY CHOOSE, AND TO EXCLUDE WHOMEVER
THEY CHOOSE FROM EVER USING THAT FREQUENCY.  NO MAY MAY BE PREVENTED
FROM SAYING OR PUBLISHING WHAT HE THINKS, OR FROM REFUSING IN HIS
SPEECH OR OTHER UTTERANCES TO GIVE EQUAL WEIGHT TO THE VIEWS OF HIS
OPPONENTS.  THIS RIGHT, THEY SAY, APPLIES EQUALLY TO BROADCASTERS. 

        A. 

ALTHOUGH BROADCASTING IS CLEARLY A MEDIUM AFFECTED BY A FIRST
AMENDMENT INTEREST, UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S.
131, 166 (1948), DIFFERENCES IN THE CHARACTERISTICS OF NEW MEDIA
JUSTIFY DIFFERENCES IN THE FIRST AMENDMENT STANDARDS APPLIED TO THEM. 
/15/  JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495, 503 (1952).  FOR
EXAMPLE, THE ABILITY OF NEW TECHNOLOGY TO PRODUCE SOUNDS MORE RAUCOUS
THAN THOSE OF THE HUMAN VOICE JUSTIFIES RESTRICTIONS ON THE SOUND
LEVEL, AND ON THE HOURS AND PLACES OF USE, OF SOUND TRUCKS SO LONG AS
THE RESTRICTIONS ARE REASONABLE AND APPLIED WITHOUT DISCRIMINATION. 
KOVACS V. COOPER, 336 U.S. 77 (1949). 

JUST AS THE GOVERNMENT MAY LIMIT THE USE OF SOUND-AMPLIFYING
EQUIPMENT POTENTIALLY SO NOISY THAT IT DROWNS OUT CIVILIZED PRIVATE
SPEECH, SO MAY THE GOVERNMENT LIMIT THE USE OF BROADCAST EQUIPMENT. 
THE RIGHT OF FREE SPEECH OF A BROADCASTER, THE USER OF A SOUND TRUCK,
OR ANY OTHER INDIVIDUAL DOES NOT EMBRACE A RIGHT TO SNUFF OUT THE FREE
SPEECH OF OTHERS.  ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 20
(1945). 

WHEN TWO PEOPLE CONVERSE FACE TO FACE, BOTH SHOULD NOT SPEAK AT ONCE
IF EITHER IS TO BE CLEARLY UNDERSTOOD.  BUT THE RANGE OF THE HUMAN
VOICE IS SO LIMITED THAT THERE COULD BE MEANINGFUL COMMUNICATIONS IF
HALF THE PEOPLE IN THE UNITED STATES WERE TALKING AND THE OTHER HALF
LISTENING.  JUST AS CLEARLY, HALF THE PEOPLE MIGHT PUBLISH AND THE
OTHER HALF READ.  BUT THE REACH OF RADIO SIGNALS IS INCOMPARABLY
GREATER THAN THE RANGE OF THE HUMAN VOICE AND THE PROBLEM OF
INTERFERENCE IS A MASSIVE REALITY.  THE LACK OF KNOW-HOW AND EQUIPMENT
MAY KEEP MANY FROM THE AIR, BUT ONLY A TINY FRACTION OF THOSE WITH
RESOURCES AND INTELLIGENCE CAN HOPE TO COMMUNICATE BY RADIO AT THE SAME
TIME IF INTELLIGIBLE COMMUNICATION IS TO BE HAD, EVEN IF THE ENTIRE
RADIO SPECTRUM IS UTILIZED IN THE PRESENT STATE OF COMMERCIALLY
ACCEPTABLE TECHNOLOGY. 

IT WAS THIS FACT, AND THE CHAOS WHICH ENSUED FROM PERMITTING ANYONE
TO USE ANY FREQUENCY AT WHATEVER POWER LEVEL HE WISHED, WHICH MADE
NECESSARY THE ENACTMENT OF THE RADIO ACT OF 1927 AND THE COMMUNICATIONS
ACT OF 1934, /16/  AS THE COURT HAS NOTED AT LENGTH BEFORE.  NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 210-214 (1943).  IT
WAS THIS REALITY WHICH AT THE VERY LEAST NECESSITATED FIRST THE
DIVISION OF THE RADIO SPECTRUM INTO PORTIONS RESERVED RESPECTIVELY FOR
PUBLIC BROADCASTING AND FOR OTHER IMPORTANT RADIO USES SUCH AS AMATEUR
OPERATION, AIRCRAFT, POLICE, DEFENSE, AND NAVIGATION; AND THEN THE
SUBDIVISION OF EACH PORTION, AND ASSIGNMENT OF SPECIFIC FREQUENCIES TO
INDIVIDUAL USERS OR GROUPS OF USERS.  BEYOND THIS, HOWEVER, BECAUSE THE
FREQUENCIES RESERVED FOR PUBLIC BROADCASTING WERE LIMITED IN NUMBER, IT
WAS ESSENTIAL FOR THE GOVERNMENT TO TELL SOME APPLICANTS THAT THEY
COULD NOT BROADCAST AT ALL BECAUSE THERE WAS ROOM FOR ONLY A FEW. 

WHERE THERE ARE SUBSTANTIALLY MORE INDIVIDUALS WHO WANT TO BROADCAST
THAN THERE ARE FREQUENCIES TO ALLOCATE, IT IS IDLE TO POSIT AN
UNABRIDGEABLE FIRST AMENDMENT RIGHT TO BROADCAST COMPARABLE TO THE
RIGHT OR VERY INDIVIDUAL TO SPEAK, WRITE, OR PUBLISH.  IF 100 PERSONS
WANT BROADCAST LICENSES BUT THERE ARE ONLY 10 FREQUENCIES TO ALLOCATE,
ALL OF THEM MAY HAVE THE SAME "RIGHT" TO A LICENSE; BUT IF THERE IS TO
BE ANY EFFECTIVE COMMUNICATION BY RADIO, ONLY A FEW CAN BE LICENSED AND
THE REST MUST BE BARRED FROM THE AIRWAVES.  IT WOULD BE STRANGE IF THE
FIRST AMENDMENT, AIMED AT PROTECTING AND FURTHERING COMMUNICATIONS,
PREVENTED THE GOVERNMENT FROM MAKING RADIO COMMUNICATION POSSIBLE BY
REQUIRING LICENSES TO BROADCAST AND BY LIMITING THE NUMBER OF LICENSES
SO AS NOT TO OVERCROWD THE SPECTRUM. 

THIS HAS BEEN THE CONSISTENT VIEW OF THE COURT.  CONGRESS
UNQUESTIONABLY HAS THE POWER TO GRANT AND DENY LICENSES AND TO
ELIMINATE EXISTING STATIONS.  FRC V. NELSON BROS. BOND & MORTGAGE CO.,
289 U.S. 266 (1933).  NO ONE HAS A FIRST AMENDMENT RIGHT TO A LICENSE
OR TO MONOPOLIZE A RADIO FREQUENCY; TO DENY A STATION LICENSE BECAUSE
"THE PUBLIC INTEREST" REQUIRES IT "IS NOT A DENIAL OF FREE SPEECH." 
NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 227 (1943). 

BY THE SAME TOKEN, AS FAR AS THE FIRST AMENDMENT IS CONCERNED THOSE
WHO ARE LICENSED STAND NO BETTER THAN THOSE TO WHOM LICENSES ARE
REFUSED.  A LICENSE PERMITS BROADCASTING, BUT THE LICENSEE HAS NO
CONSTITUTIONAL RIGHT TO BE THE ONE WHO HOLDS THE LICENSE OR TO
MONOPOLIZE A RADIO FREQUENCY TO THE EXCLUSION OF HIS FELLOW CITIZENS. 
THERE IS NOTHING IN THE FIRST AMENDMENT WHICH PREVENTS THE GOVERNMENT
FROM REQUIRING A LICENSEE TO SHARE HIS FREQUENCY WITH OTHERS AND TO
CONDUCT HIMSELF AS A PROXY OR FIDUCIARY WITH OBLIGATIONS TO PRESENT
THOSE VIEWS AND VOICES WHICH ARE REPRESENTATIVE OF HIS COMMUNITY AND
WHICH WOULD OTHERWISE, BY NECESSITY, BE BARRED FROM THE AIRWAVES. 
THIS IS NOT TO SAY THAT THE FIRST AMENDMENT IS IRRELEVANT TO PUBLIC
BROADCASTING.  ON THE CONTRARY, IT HAS A MAJOR ROLE TO PLAY AS THE
CONGRESS ITSELF RECOGNIZED IN SEC. 326, WHICH FORBIDS FCC INTERFERENCE
WITH "THE RIGHT OF FREE SPEECH BY MEANS OF RADIO COMMUNICATION." 
BECAUSE OF THE SCARCITY OF RADIO FREQUENCIES, THE GOVERNMENT IS
PERMITTED TO PUT RESTRAINTS ON LICENSEES IN FAVOR OF OTHERS WHOSE VIEWS
SHOULD BE EXPRESSED ON THIS UNIQUE MEDIUM.  BUT THE PEOPLE AS A WHOLE
RETAIN THEIR INTEREST IN FREE SPEECH BY RADIO AND THEIR COLLECTIVE
RIGHT TO HAVE THE MEDIUM FUNCTION CONSISTENTLY WITH THE ENDS AND
PURPOSES OF THE FIRST AMENDMENT.  IT IS THE RIGHT OF THE VIEWERS AND
LISTENERS, NOT THE RIGHT OF THE BROADCASTERS, WHICH IS PARAMOUNT.  SEE
FCC V. SANDERS BROS. RADIO STATION, 309 U.S. 470, 475 (1940); FCC V.
ALLENTOWN BROADCASTING CORP., 349 U.S. 358, 361-362 (1955); 1
Z.CHAFEE,GOVERNMENT AND MASS COMMUNICATIONS 546 (1947).  IT IS THE
PURPOSE OF THE FIRST AMENDMENT TO PRESERVE AN UNINHIBITED MARKETPLACE
OF IDEAS IN WHICH TRUTH WILL ULTIMATELY PREVAIL, RATHER THAN TO
COUNTENANCE MONOPOLIZATION OF THAT MARKET, WHETHER IT BE BY THE
GOVERNMENT ITSELF OR A PRIVATE LICENSE.  ASSOCIATED PRESS V. UNITED
STATES, 326 U.S. 1, 20 (1945); NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254, 270 (1964); ABRAMS V. UNITED STATES, 250 U.S. 616, 630 (1919)
(HOLMES, J., DISSENTING).  "(SPEECH CONCERNING PUBLIC AFFAIRS IS MORE
THAN SELF-EXPRESSION; IT IS THE ESSENCE OF SELF-GOVERNMENT."  GARRISON
V. LOUISIANA, 379 U.S. 64, 74-75 (1964).  SEE BRENNAN, THE SUPREME
COURT AND THE MEIKLEJOHN INTERPRETATION OF THE FIRST AMENDMENT, 79
HARV.L.REV.  1 (1965).  IT IS THE RIGHT OF THE PUBLIC TO RECEIVE
SUITABLE ACCESS TO SOCIAL, POLITICAL, ESTHETIC, MORAL, AND OTHER IDEAS
AND EXPERIENCES WHICH IS CRUCIAL HERE.  THAT RIGHT MAY NOT
CONSTITUTIONALLY BE ABRIDGED EITHER BY CONGRESS OR BY THE FCC. 

        B. 

RATHER THAN CONFER FREQUENCY MONOPOLIES ON A RELATIVELY SMALL NUMBER
OF LICENSEES, IN A NATION OF 200,000,000, THE GOVERNMENT COULD SURELY
HAVE DECREED THAT EACH FREQUENCY SHOULD BE SHARED AMONG ALL OR SOME OF
THOSE WHO WISH TO USE IT, EACH BEING ASSIGNED A PORTION OF THE
BROADCAST DAY OR THE BROADCAST WEEK.  THE RULING AND REGULATIONS AT
ISSUE HERE DO NOT GO QUITE SO FAR.  THEY ASSERT THAT UNDER SPECIFIED
CIRCUMSTANCES, A LICENSEE MUST OFFER TO MAKE AVAILABLE A REASONABLE
AMOUNT OF BROADCAST TIME TO THOSE WHO HAVE A VIEW DIFFERENT FROM THAT
WHICH HAS ALREADY BEEN EXPRESSED ON HIS STATION.  THE EXPRESSION OF A
POLITICAL ENDORSEMENT, OR OF A PERSONAL ATTACK WHILE DEALING WITH A
CONTROVERSIAL PUBLIC ISSUE, SIMPLY TRIGGERS THIS TIME SHARING.  AS WE
HAVE SAID, THE FIRST AMENDMENT CONFERS NO RIGHT ON LICENSEES TO PREVENT
OTHERS FROM BROADCASTING ON "THEIR"  FREQUENCIES AND NO RIGHT TO AN
UNCONDITIONAL MONOPOLY OF A SCARCE RESOURCE WHICH THE GOVERNMENT HAS
DENIED OTHERS THE RIGHT TO USE. 

IN TERMS OF CONSTITUTIONAL PRINCIPLE, AND AS ENFORCED SHARING OF A
SCARCE RESOURCE, THE PERSONAL ATTACK AND POLITICAL EDITORIAL RULES ARE
INDISTINGUISHABLE FROM THE EQUAL-TIME PROVISION OF SEC. 315, A SPECIFIC
ENACTMENT OF CONGRESS REQUIRING STATIONS TO SET ASIDE REPLY TIME UNDER
SPECIFIED CIRCUMSTANCES AND TO WHICH THE FAIRNESS DOCTRINE AND THESE
CONSTITUENT REGULATIONS ARE IMPORTANT COMPLEMENTS.  THAT PROVISION,
WHICH HAS BEEN PART OF THE LAW SINCE 1927, RADIO ACT OF 1927, SEC. 18,
44 STAT. 1170, HAS BEEN HELD VALID BY THIS COURT AS AN OBLIGATION OF
THE LICENSEE RELIEVING HIM OF ANY POWER IN ANY WAY TO PREVENT OR CENSOR
THE BROADCAST, AND THUS INSULATING HIM FROM LIABILITY FOR DEFAMATION. 
THE CONSTITUTIONALITY OF THE STATUTE UNDER THE FIRST AMENDMENT WAS
UNQUESTIONED.  /17/  FARMER EDUC.  & COOP.  UNION V. WDAY, 360 U.S. 525
(1959). 

NOR CAN WE SAY THAT IT IS INCONSISTENT WITH THE FIRST AMENDMENT GOAL
OF PRODUCING AN INFORMED PUBLIC CAPABLE OF CONDUCTING ITS OWN AFFAIRS
TO REQUIRE A BROADCASTER TO PERMIT ANSWERS TO PERSONAL ATTACKS
OCCURRING IN THE COURSE OF DISCUSSING CONTROVERSIAL ISSUES, OR TO
REQUIRE THAT THE POLITICAL OPPONENTS OF THOSE ENDORSED BY THE STATION
BE GIVEN A CHANCE TO COMMUNICATE WITH THE PUBLIC.  /18/  OTHERWISE,
STATION OWNERS AND A FEW NETWORKS WOULD HAVE UNFETTERED POWER TO MAKE
TIME AVAILABLE ONLY TO THE HIGHEST BIDDERS, TO COMMUNICATE ONLY THEIR
OWN VIEWS ON PUBLIC ISSUES, PEOPLE AND CANDIDATES, AND TO PERMIT ON THE
AIR ONLY THOSE WITH WHOM THEY AGREED.  THERE IS NO SANCTUARY IN THE
FIRST AMENDMENT FOR UNLIMITED PRIVATE CENSORSHIP OPERATING IN A MEDIUM
NOT OPEN TO ALL.  "FREEDOM OF THE PRESS FROM GOVERNMENTAL INTERFERENCE
UNDER THE FIRST AMENDMENT DOES NOT SANCTION REPRESSION OF THAT FREEDOM
BY PRIVATE INTERESTS."  ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1,
20 (1945). 

        C. 

IT IS STRENUOUSLY ARGUED, HOWEVER, THAT IF POLITICAL EDITORIALS OR
PERSONAL ATTACKS WILL TRIGGER AN OBLIGATION IN BROADCASTERS TO AFFORD
THE OPPORTUNITY OF EXPRESSION TO SPEAKERS WHO NEED NOT PAY FOR TIME AND
WHOSE VIEWS ARE UNPALATABLE TO THE LICENSEES, THE BROADCASTERS WILL BE
IRRESISTIBLY FORCED TO SELF-CENSORSHIP AND THEIR COVERAGE OF
CONTROVERSIAL PUBLIC ISSUES WILL BE ELIMINATED OR AT LEAST RENDERED
WHOLLY INEFFECTIVE.  SUCH A RESULT WOULD INDEED BE A SERIOUS MATTER,
FOR SHOULD LICENSEES ACTUALLY ELIMINATE THEIR COVERAGE OF CONTROVERSIAL
ISSUES, THE PURPOSES OF THE DOCTRINE WOULD BE STIFLED. 

AT THIS POINT, HOWEVER, AS THE FEDERAL COMMUNICATIONS COMMISSION HAS
INDICATED, THAT POSSIBILITY IS AT BEST SPECULATIVE.  THE COMMUNICATIONS
INDUSTRY, AND IN PARTICULAR THE NETWORKS, HAVE TAKEN PAINS TO PRESENT
CONTROVERSIAL ISSUES IN THE PAST, AND EVEN NOW THEY DO NOT ASSERT THAT
THEY INTEND TO ABANDON THEIR EFFORTS IN THIS REGARD.  /19/  IT WOULD BE
BETTER IF THE FCC'S ENCOURAGEMENT WERE NEVER NECESSARY TO INDUCE THE
BROADCASTERS TO MEET THEIR RESPONSIBILITY.  AND IF EXPERIENCE WITH THE
ADMINISTRATION OF THESE DOCTRINES INDICATES THAT THEY HAVE THE NET
EFFECT OF REDUCING RATHER THAN ENHANCING THE VOLUME AND QUALITY OF
COVERAGE, THERE WILL BE TIME ENOUGH TO RECONSIDER THE CONSTITUTIONAL
IMPLICATIONS.  THE FAIRNESS DOCTRINE IN THE PAST HAS HAD NO SUCH
OVERALL EFFECT. 

THAT THIS WILL OCCUR NOW SEEMS UNLIKELY, HOWEVER, SINCE IF PRESENT
LICENSEES SHOULD SUDDENLY PROVE TIMOROUS, THE COMMISSION IS NOT
POWERLESS TO INSIST THAT THEY GIVE ADEQUATE AND FAIR ATTENTION TO
PUBLIC ISSUES.  IT DOES NOT VIOLATE THE FIRST AMENDMENT TO TREAT
LICENSEES GIVEN THE PRIVILEGE OF USING SCARCE RADIO FREQUENCIES AS
PROXIES FOR THE ENTIRE COMMUNITY, OBLIGATED TO GIVE SUITABLE TIME AND
ATTENTION TO MATTERS OF GREAT PUBLIC CONCERN.  TO CONDITION THE
GRANTING OR RENEWAL OF LICENSES ON A WILLINGNESS TO PRESENT
REPRESENTATIVE COMMUNITY VIEWS ON CONTROVERSIAL ISSUES IS CONSISTENT
WITH THE ENDS AND PURPOSES OF THOSE CONSTITUTIONAL PROVISIONS
FORBIDDING THE ABRIDGMENT OF FREEDOM OF SPEECH AND FREEDOM OF THE
PRESS.  CONGRESS NEED NOT STAND IDLY BY AND PERMIT THOSE WITH LICENSES
TO IGNORE THE PROBLEMS WHICH BESET THE PEOPLE OR TO EXCLUDE FROM THE
AIRWAYS ANYTHING BUT THEIR OWN VIEWS OF FUNDAMENTAL QUESTIONS.  THE
STATUTE, LONG ADMINISTRATIVE PRACTICE, AND CASES ARE TO THIS EFFECT. 

LICENSES TO BROADCAST DO NOT CONFER OWNERSHIP OF DESIGNATED
FREQUENCIES, BUT ONLY THE TEMPORARY PRIVILEGE OF USING THEM.  47 U.S.C.
301.  UNLESS RENEWED, THEY EXPIRE WITHIN THREE YEARS.  47 U.S.C.
307(D).  THE STATUTE MANDATES THE ISSUANCE OF LICENSES IF THE "PUBLIC
CONVENIENCE, INTEREST, OR NECESSITY WILL BE SERVED THEREBY."  47 U.S.C.
307(A).  IN APPLYING THIS STANDARD THE COMMISSION FOR 40 YEARS HAS BEEN
CHOOSING LICENSEES BASED IN PART ON THEIR PROGRAM PROPOSALS.  IN FRC V.
NELSON BROS. BOND & MORTGAGE CO., 289 U.S. 266, 279 (1933), THE COURT
NOTED THAT IN "VIEW OF THE LIMITED NUMBER OF AVAILABLE BROADCASTING
FREQUENCIES, THE CONGRESS HAS AUTHORIZED ALLOCATION AND LICENSES."  IN
DETERMINING HOW BEST TO ALLOCATE FREQUENCIES, THE FEDERAL RADIO
COMMISSION CONSIDERED THE NEEDS OF COMPETING STATIONS TO MEET THOSE
NEEDS; MOREOVER, IF NEEDS OR PROGRAMS SHIFTED, THE COMMISSION COULD
ALTER ITS ALLOCATIONS TO REFLECT THOSE SHIFTS.  ID., AT 385.  IN THE
SAME VEIN, IN FCC V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 137-138
(1940), THE COURT NOTED THAT THE STATUTORY STANDARD WAS A SUPPLE
INSTRUMENT TO EFFECT CONGRESSIONAL DESIRES "TO MAINTAIN . . . A GRIP ON
THE DYNAMIC ASPECTS OF RADIO TRANSMISSION" AND TO ALLAY FEARS THAT "IN
THE ABSENCE OF GOVERNMENTAL CONTROL THE PUBLIC INTEREST MIGHT BE
SUBORDINATED TO MONOPOLISTIC DOMINATION IN THE BROADCASTING FIELD." 
THREE YEARS LATER THE COURT CONSIDERED THE VALIDITY OF THE COMMISSION'S
CHAIN BROADCASTING REGULATIONS, WHICH AMONG OTHER THINGS FORBADE
STATIONS FROM DEVOTING TOO MUCH TIME TO NETWORK PROGRAMS IN ORDER THAT
THERE BE SUITABLE OPPORTUNITY FOR LOCAL PROGRAMS SERVING LOCAL NEEDS. 
THE COURT UPHELD THE REGULATIONS, UNEQUIVOCALLY RECOGNIZING THAT THE
COMMISSION WAS MORE THAN A TRAFFIC POLICEMAN CONCERNED WITH THE
TECHNICAL ASPECTS OF BROADCASTING AND THAT IT NEITHER EXCEEDED ITS
POWERS UNDER THE STATUTE NOR TRANSGRESSED THE FIRST AMENDMENT IN
INTERESTING ITSELF IN GENERAL PROGRAM FORMAT AND THE KINDS OF PROGRAMS
BROADCAST BY LICENSEES.  NATIONAL BROADCASTING CO. V. UNITED STATES,
319 U.S. 190 (1943). 

        D. 

THE LITIGANTS EMBELLISH THEIR FIRST AMENDMENT ARGUMENTS WITH THE
CONTENTION THAT THE REGULATIONS ARE SO VAGUE THAT THEIR DUTIES ARE
IMPOSSIBLE TO DISCERN.  OF THIS POINT IT IS ENOUGH TO SAY THAT, JUDGING
THE VALIDITY OF THE REGULATIONS ON THEIR FACE AS THEY ARE PRESENTED
HERE, WE CANNOT CONCLUDE THAT THE FCC HAS BEEN LEFT A FREE HAND TO
VINDICATE ITS OWN IDIOSYNCRATIC CONCEPTION OF THE PUBLIC INTEREST OR OF
THE REQUIREMENTS OF FREE SPEECH.  PAST ADJUDICATIONS BY THE FCC GIVE
ADDED PRECISION TO THE REGULATIONS; THERE WAS NOTHING VAGUE ABOUT THE
FCC'S SPECIFIC RULING IN RED LION THAT FRED COOK SHOULD BE PROVIDED AN
OPPORTUNITY TO REPLY.  THE REGULATIONS AT ISSUE IN RTNDA COULD BE
EMPLOYED IN PRECISELY THE SAME WAY AS THE FAIRNESS DOCTRINE WAS IN RED
LION.  MOREOVER, THE FCC ITSELF HAS RECOGNIZED THAT THE APPLICABILITY
OF ITS REGULATIONS TO SITUATIONS BEYOND THE SCOPE OF PAST CASES MAY BE
QUESTIONABLE, 32 FED.REG.  10303, 10304 AND N. 6, AND WILL NOT IMPOSE
SANCTIONS IN SUCH CASES WITHOUT WARNING.  WE NEED NOT APPROVE EVERY
ASPECT OF THE FAIRNESS DOCTRINE TO DECIDE THESE CASES, AND WE WILL NOT
NOW PASS UPON THE CONSTITUTIONALITY OF THESE REGULATIONS BY ENVISIONING
THE MOST EXTREME APPLICATIONS CONCEIVABLE, UNITED STATES V. SULLIVAN,
332 U.S. 689, 694 (1948), BUT WILL DEAL WITH THOSE PROBLEMS IF AND WHEN
THEY ARISE. 

WE NEED NOT AND DO NOT NOW RATIFY EVERY PAST AND FUTURE DECISION BY
THE FCC WITH REGARD TO PROGRAMMING.  THERE IS NO QUESTION HERE OF THE
COMMISSION'S REFUSAL TO PERMIT THE BROADCASTER TO CARRY A PARTICULAR
PROGRAM OR TO PUBLISH HIS OWN VIEWS; OF A DISCRIMINATORY REFUSAL TO
REQUIRE THE LICENSEE TO BROADCAST CERTAIN VIEWS WHICH HAVE BEEN DENIED
ACCESS TO THE AIRWAVES; OF GOVERNMENT CENSORSHIP OF A PARTICULAR
PROGRAM CONTRARY TO SEC. 326; OR OF THE OFFICIAL GOVERNMENT VIEW
DOMINATING PUBLIC BROADCASTING.  SUCH QUESTIONS WOULD RAISE MORE
SERIOUS FIRST AMENDMENT ISSUES.  BUT WE DO HOLD THAT THE CONGRESS AND
THE COMMISSION DO NOT VIOLATE THE FIRST AMENDMENT WHEN THEY REQUIRE A
RADIO OR TELEVISION STATION TO GIVE REPLY TIME TO ANSWER PERSONAL
ATTACKS AND POLITICAL EDITORIALS. 

        E. 

IT IS ARGUED THAT EVEN IF AT ONE TIME THE LACK OF AVAILABLE
FREQUENCIES FOR ALL WHO WISHED TO USE THEM JUSTIFIED THE GOVERNMENT'S
CHOICE OF THOSE WHO WOULD BEST SERVE THE PUBLIC INTEREST BY ACTING AS
PROXY FOR THOSE WHO WOULD PRESENT DIFFERING VIEWS, OR BY GIVING THE
LATTER ACCESS DIRECTLY TO BROADCAST FACILITIES, THIS CONDITION NO
LONGER PREVAILS SO THAT CONTINUING CONTROL IS NOT JUSTIFIED.  TO THIS
THERE ARE SEVERAL ANSWERS. 

SCARCITY IS NOT ENTIRELY A THING OF THE PAST.  ADVANCES IN TECHNOLOGY,
SUCH AS MICROWAVE TRANSMISSION, HAVE LED TO MORE EFFICIENT UTILIZATION
OF THE FREQUENCY SPECTRUM, BUT USES FOR THAT SPECTRUM HAVE ALSO GROWN
APACE.  /20/  PORTIONS OF THE SPECTRUM MUST BE RESERVED FOR VITAL USES
UNCONNECTED WITH HUMAN COMMUNICATION, SUCH AS RADIO-NAVIGATIONAL AIDS
USED BY AIRCRAFT AND VESSELS.  CONFLICTS HAVE EVEN EMERGED BETWEEN SUCH
VITAL FUNCTIONS AS DEFENSE PREPAREDNESS AND EXPERIMENTATION IN METHODS
OF AVERTING MIDAIR COLLISIONS THROUGH RADIO WARNING DEVICES.  /21/
"LAND MOBILE SERVICES" SUCH AS POLICE, AMBULANCE, FIRE DEPARTMENT,
PUBLIC UTILITY, AND OTHER COMMUNICATIONS SYSTEMS HAVE BEEN OCCUPYING AN
INCREASINGLY CROWDED PORTION OF THE FREQUENCY SPECTRUM /22/  AND THERE
ARE, APART FROM LICENSED AMATEUR RADIO OPERATORS' EQUIPMENT, 5,000,000
TRANSMITTERS OPERATED ON THE "CITIZENS' BAND" WHICH IS ALSO
INCREASINGLY CONGESTED.  /23/  AMONG THE VARIOUS USES FOR RADIO
FREQUENCY SPACE, INCLUDING MARINE, AVIATION, AMATEUR, MILITARY, AND
COMMON CARRIER USERS, THERE ARE EASILY ENOUGH CLAIMANTS TO PERMIT USE
OF THE WHOLE WITH AN EVEN SMALLER ALLOCATION TO BROADCAST RADIO AND
TELEVISION USES THAN NOW EXISTS. 

COMPARATIVE HEARINGS BETWEEN COMPETING APPLICANTS FOR BROADCAST
SPECTRUM SPACE ARE BY NO MEANS A THING OF THE PAST.  THE RADIO SPECTRUM
HAS BECOME SO CONGESTED THAT AT TIMES IT HAS BEEN NECESSARY TO SUSPEND
NEW APPLICATIONS.  /24/  THE VERY HIGH FREQUENCY TELEVISION SPECTRUM
IS, IN THE COUNTRY'S MAJOR MARKETS, ALMOST ENTIRELY OCCUPIED, ALTHOUGH
SPACE RESERVED FOR ULTRA HIGH FREQUENCY TELEVISION TRANSMISSION, WHICH
IS A RELATIVELY RECENT DEVELOPMENT AS A COMMERCIALLY VIABLE
ALTERNATIVE, HAS NOT YET BEEN COMPLETELY FILLED.  /25/     THE RAPIDITY
WITH WHICH TECHNOLOGICAL ADVANCES SUCCEED ONE ANOTHER TO CREATE MORE
EFFICIENT USE OF SPECTRUM SPACE ON THE ONE HAND, AND TO CREATE NEW USES
FOR THAT SPACE BY EVER GROWING NUMBERS OF PEOPLE ON THE OTHER, MAKES IT
UNWISE TO SPECULATE ON THE FUTURE ALLOCATION OF THAT SPACE.  IT IS
ENOUGH TO SAY THAT THE RESOURCE IS ONE OF CONSIDERABLE AND GROWING
IMPORTANCE WHOSE SCARCITY IMPELLED ITS REGULATION BY AN AGENCY
AUTHORIZED BY CONGRESS.  NOTHING IN THIS RECORD, OR IN OUR OWN
RESEARCHES, CONVINCES US THAT THE RESOURCE IS NO LONGER ONE FOR WHICH
THERE ARE MORE IMMEDIATE AND POTENTIAL USES THAN CAN BE ACCOMMODATED,
AND FOR WHICH WISE PLANNING IS ESSENTIAL.  /26/  THIS DOES NOT MEAN, OF
COURSE, THAT EVERY POSSIBLE WAVELENGTH MUST BE OCCUPIED AT EVERY HOUR
BY SOME VITAL USE IN ORDER TO SUSTAIN THE CONGRESSIONAL JUDGMENT.  THE
SUBSTANTIAL CAPITAL INVESTMENT REQUIRED FOR MANY USES, IN ADDITION TO
THE POTENTIALITY FOR CONFUSION AND INTERFERENCE INHERENT IN ANY SCHEME
FOR CONTINUOUS KALEIDOSCOPIC REALLOCATION OF ALL AVAILABLE SPACE MAY
MAKE THIS FEASIBLE.  THE ALLOCATION NEED NOT BE MADE AT SUCH A
BREAKNECK PACE THAT THE OBJECTIVES OF THE ALLOCATION ARE THEMSELVES
IMPERILED.  /27/ 

EVEN WHERE THERE ARE GAPS IN SPECTRUM UTILIZATION, THE FACT REMAINS
THAT EXISTING BROADCASTERS HAVE OFTEN ATTAINED THEIR PRESENT POSITION
BECAUSE OF THEIR INITIAL GOVERNMENT SELECTION IN COMPETITION WITH
OTHERS BEFORE NEW TECHNOLOGICAL ADVANCES OPENED NEW OPPORTUNITIES FOR
FURTHER USES.  LONG EXPERIENCE IN BROADCASTING, CONFIRMED HABITS OF
LISTENERS AND VIEWERS, NETWORK AFFILIATION, AND OTHER ADVANTAGES IN
PROGRAM PROCUREMENT GIVE EXISTING BROADCASTERS A SUBSTANTIAL ADVANTAGE
OVER NEW ENTRANTS, EVEN WHERE NEW ENTRY IS TECHNOLOGICALLY POSSIBLE. 
THESE ADVANTAGES ARE THE FRUIT OF A PREFERRED POSITION CONVERRED BY THE
GOVERNMENT.  SOME PRESENT POSSIBILITY FOR NEW ENTRY BY COMPETING
STATIONS IS NOT ENOUGH, IN ITSELF, TO RENDER UNCONSTITUTIONAL THE
GOVERNMENT'S EFFORT TO ASSURE THAT A BROADCASTER'S PROGRAMMING RANGES
WIDELY ENOUGH TO SERVE THE PUBLIC INTEREST. 

IN VIEW OF THE SCARCITY OF BROADCAST FREQUENCIES, THE GOVERNMENT'S
ROLE IN ALLOCATING THOSE FREQUENCIES, AND THE LEGITIMATE CLAIMS OF
THOSE UNABLE WITHOUT GOVERNMENTAL ASSISTANCE TO GAIN ACCESS TO THOSE
FREQUENCIES FOR EXPRESSION OF THEIR VIEWS, WE HOLD THE REGULATIONS AND
RULING AT ISSUE HERE ARE BOTH AUTHORIZED BY STATUTE AND
CONSTITUTIONAL.  /28/  THE JUDGMENT OF THE COURT OF APPEALS IN RED LION
IS AFFIRMED AND THAT IN RTNDA REVERSED AND THE CAUSES REMANDED FOR
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

NOT HAVING HEARD ORAL ARGUMENT IN THESE CASES, MR. JUSTICE DOUGLAS
TOOK NO PART IN THE COURT'S DECISION. 

/1/  TOGETHER WITH NO. 717, UNITED STATES ET AL. V. RADIO TELEVISION
NEWS DIRECTORS ASSN. ET AL., ON CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT, ARGUED APRIL 3, 1969. 

/1A/  COMMUNICATIONS ACT OF 1934, TIT. III, 48 STAT. 1081, AS
AMENDED, 47 U.S.C. 301 ET SEQ.  SECTION 315 NOW READS: 

"315.  CANDIDATES FOR PUBLIC OFFICE; FACILITIES; RULES. 

"(A) IF ANY LICENSEE SHALL PERMIT ANY PERSON WHO IS A LEGALLY
QUALIFIED CANDIDATE FOR ANY PUBLIC OFFICE TO USE A BROADCASTING
STATION, HE SHALL AFFORD EQUAL OPPORTUNITIES TO ALL OTHER SUCH
CANDIDATES FOR THAT OFFICE IN THE USE OF SUCH BROADCASTING STATION:
PROVIDED, THAT SUCH LICENSEE SHALL HAVE NO POWER OF CENSORSHIP OVER THE
MATERIAL BROADCAST UNDER THE PROVISIONS OF THIS SECTION.  NO OBLIGATION
IS IMPOSED UPON ANY LICENSEE TO ALLOW THE USE OF ITS STATION BY ANY
SUCH CANDIDATE.  APPEARANCE BY A LEGALLY QUALIFIED CANDIDATE ON ANY... 

"(1) BONA FIDE NEWSCAST. 

"(2) BONA FIDE NEWS INTERVIEW. 

"(3) BONA FIDE NEWS DOCUMENTARY (IF THE APPEARANCE OF THE CANDIDATE
IS INCIDENTAL TO THE PRESENTATION OF THE SUBJECT OR SUBJECTS COVERED BY
THE NEWS DOCUMENTARY), OR 

"(4) ON-THE-SPOT COVERAGE OF BONA FIDE NEWS EVENTS (INCLUDING BUT
NOT LIMITED TO POLITICAL CONVENTIONS AND ACTIVITIES INCIDENTAL
THERETO), SHALL NOT BE DEEMED TO BE USE OF A BROADCASTING STATION
WITHIN THE MEANING OF THIS SUBSECTION.  NOTHING IN THE FOREGOING
SENTENCE SHALL BE CONSTRUED AS RELIEVING BROADCASTERS, IN CONNECTION
WITH THE PRESENTATION OF NEWSCASTS, NEWS INTERVIEWS, NEWS
DOCUMENTARIES, AND ON-THE-SPOT COVERAGE OF NEWS EVENTS, FROM THE
OBLIGATION IMPOSED UPON THEM UNDER THIS CHAPTER TO OPERATE IN THE
PUBLIC INTEREST AND TO AFFORD REASONABLE OPPORTUNITY FOR THE DISCUSSION
OF CONFLICTING VIEWS ON ISSUES OF PUBLIC IMPORTANCE. 

"(B) THE CHARGES MADE FOR THE USE OF ANY BROADCASTING STATION FOR
ANY OF THE PURPOSES SET FORTH IN THIS SECTION SHALL NOT EXCEED THE
CHARGES MADE FOR COMPARABLE USE OF SUCH STATION FOR OTHER PURPOSES. 

"(C) THE COMMISSION SHALL PRESCRIBE APPROPRIATE RULES AND
REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS SECTION." 

/2/  ACCORDING TO THE RECORD, HARGIS ASSERTED THAT HIS BROADCAST
INCLUDED THE FOLLOWING STATEMENT: 

"NOW, THIS PAPERBACK BOOK BY FRED J. COOK IS ENTITLED, 'GOLDWATER
EXTREMIST ON THE RIGHT.'  WHO IS COOK?  COOK WAS FIRED FROM THE NEW
YORK WORLD TELEGRAM AFTER HE MADE A FALSE CHARGE PUBLICLY ON TELEVISION
AGAINST AN UN-NAMED OFFICIAL OF THE NEW YORK CITY GOVERNMENT.  NEW YORK
PUBLISHERS AND NEWSWEEK MAGAZINE FOR DECEMBER 7, 1959, SHOWED THAT FRED
COOK AND HIS PAL, EUGENE GLEASON, HAD MADE UP THE WHOLE STORY AND THIS
CONFESSION WAS MADE TO NEW YORK DISTRICT ATTORNEY, FRANK HOGAN.  AFTER
LOSING HIS JOB, COOK WENT TO WORK FOR THE LEFT-WING PUBLICATION, THE
NATION, ONE OF THE MOST SCURRILOUS PUBLICATIONS OF THE LEFT WHICH HAS
CHAMPIONED MANY COMMUNIST CAUSES OVER MANY YEARS.  ITS EDITOR, CARRY
MCWILLAIMS, HAS BEEN AFFILIATED WITH MANY COMMUNIST ENTERPRISES, SCORES
OF WHICH HAVE BEEN CITED AS SUBVERSIVE BY THE ATTORNEY GENERAL OF THE
U.S. OR BY OTHER GOVERNMENT AGENCIES.  . . . NOW, AMONG OTHER THINGS
FRED COOK WROTE FOR THE NATION, WAS AN ARTICLE ABSOLVING ALGER HISS OF
ANY WRONG DOING . . . THERE WAS A 208 PAGE ATTACK ON THE FBI AND J.
EDGAR HOOVER; ANOTHER ATTACK BY MR. COOK WAS ON THE CENTRAL
INTELLIGENCE AGENCY . . . NOW THIS IS THE MAN WHO WROTE THE BOOK TO
SMEAR AND DESTROY BARRY GOLDWATER CALLED 'BARRY GOLDWATER-- EXTREMIST
OF THE RIGHT.'" 

/3/  THE COURT OF APPEALS INITIALLY DISMISSED THE PETITION FOR WANT
OF A REVIEWABLE ORDER, LATER REVERSING ITSELF EN BANC UPON ARGUMENT BY
THE GOVERNMENT THAT THE FCC RULE USED HERE, WHICH PERMITS IT TO ISSUE
"A DECLARATORY RULING TERMINATING A CONTROVERSY OR REMOVING
UNCERTAINTY," 47 CFR 1.2, WAS IN FACT JUSTIFIED BY THE ADMINISTRATIVE
PROCEDURE ACT.  THAT ACT PERMITS AN ADJUDICATING AGENCY, "IN ITS SOUND
DISCRETION, WITH LIKE EFFECT AS IN THE CASE OF OTHER ORDERS, TO ISSUE A
DECLARATORY ORDER TO TERMINATE A CONTROVERSY OR REMOVE UNCERTAINTY." 
SEC. 5, 60 STAT. 239, 5 U.S.C. 1004(D).  IN THIS CASE, THE FCC COULD
HAVE DETERMINED THE QUESTION OF RED LION'S LIABILITY TO A CEASE-AND
DESIST ORDER OR LECENSE REVOCATION, 47 U.S.C. 312, FOR FAILURE TO
COMPLY WITH THE LICENSE'S CONDITION THAT THE STATION BE OPERATED "IN
THE PUBLIC INTEREST," OR FOR FAILURE TO OBEY A REQUIREMENT OF OPERATION
IN THE PUBLIC INTEREST IMPLICIT IN THE ABILITY OF THE FCC TO REVOKE
LICENSES FOR CONDITIONS JUSTIFYING THE DENIAL OF AN INITIAL LICENSE, 47
U.S.C. 312(A)(2), AND THE STATUTORY REQUIREMENT THAT THE PUBLIC
INTEREST BE SERVED IN GRANTING AND RENEWING LICENSES, 47 U.S.C. 307(A),
(D).  SINCE THE FCC COULD HAVE ADJUDICATED THESE QUESTIONS IT COULD,
UNDER THE ADMINISTRATIVE PROCEDURE ACT, HAVE ISSUED A DECLARATORY ORDER
IN THE COURSE OF ITS ADJUDICATION WHICH WOULD HAVE BEEN SUBJECT TO
JUDICIAL REVIEW.  ALTHOUGH THE FCC DID NOT COMPLY WITH ALL OF THE
FORMALITIES FOR AN ADJUDICATIVE PROCEEDING IN THIS CASE, THE PETITIONER
ITSELF ADOPTED AS ITS OWN THE GOVERNMENT'S POSITION THAT THIS WAS A
REVIEWABLE ORDER, WAIVING ANY OBJECTION IT MIGHT HAVE HAD TO THE
PROCEDURE OF THE ADJUDICATION. 

/4/  BECAUSE OF THIS CHAOS, A SERIES OF NATIONAL RADIO CONFERENCES
WAS HELD BETWEEN 1922 AND 1925, AT WHICH IT WAS RESOLVED THAT
REGULATION OF THE RADIO SPECTRUM BY THE FEDERAL GOVERNMENT WAS
ESSENTIAL AND THAT REGULATORY POWER SHOULD BE UTILIZED TO ENSURE THAT
ALLOCATION OF THIS LIMITED RESOURCE WOULD BE MADE ONLY TO THOSE WHO
WOULD SERVE THE PUBLIC INTEREST.  THE 1923 CONFERENCE EXPRESSED THE
OPINION THAT THE RADIO COMMUNICATIONS ACT OF 1912, 37 STAT. 302,
CONFERRED UPON THE SECRETARY OF COMMERCE THE POWER TO REGULATE
FREQUENCIES AND HOURS OF OPERATION, BUT WHEN SECRETARY HOOVER SOUGHT TO
IMPLEMENT THIS CLAIMED POWER BY PENALIZING THE ZENITH RADIO CORPORATION
FOR OPERATING ON AN UNAUTHORIZED FREQUENCY.  UNITED STATES V. ZENITH
RADIO CORPORATION, 12 F.2D 614 (D.C.N.D.ILL.  1926).  CF. HOOVER V.
INTERCITY RADIO CO., 52 APP.D.C. 339, 286 F. 1003 (1923) (SECRETARY HAD
NO POWER TO DENY LICENSES, BUT WAS EMPOWERED TO ASSIGN FREQUENCIES). 
AN OPINION ISSUED BY THE ATTORNEY GENERAL AT HOOVER'S REQUEST CONFIRMED
THE IMPOTENCE OF THE SECRETARY UNDER THE 1912 ACT.  35 OP.ATT.GEN.  126
(1926).  HOOVER THEREAFTER APPEALED TO THE RADIO INDUSTRY TO REGULATE
ITSELF, BUT HIS APPEAL LARGELY UNHEEDED.  SEE GENERALLY L.
SCHMECKEBIER, THE FEDERAL RADIO COMMISSION 1-14 (1932). 

/5/  CONGRESSMAN WHITE, A SPONSOR OF THE BILL ENACTED AS THE RADIO
ACT OF 1927, COMMENTED UPON THE NEED FOR NEW LEGISLATION: 

"WE HAVE REACHED THE DEFINITE CONCLUSION THAT THE RIGHT OF ALL OUR
PEOPLE TO ENJOY THIS MEANS OF COMMUNICATION CAN BE PRESERVED ONLY BY
THE REPUDIATION OF THE IDEA UNDERLYING THE 1912 LAW THAT ANYONE WHO
WILL MAY TRANSMIT AND BY THE ASSERTION IN ITS STEAD OF THE DOCTRINE
THAT THE RIGHT OF THE PUBLIC TO SERVICE IS SUPERIOR TO THE RIGHT OF ANY
INDIVIDUAL.  . . . THE RECENT RADIO CONFERENCE MET THIS ISSUE
SQUARELY.  IT RECOGNIZED THAT IN THE PRESENT STATE OF SCIENTIFIC
DEVELOPMENT THERE MUST BE A LIMITATION UPON THE NUMBER OF BROADCASTING
STATIONS AND IT RECOMMENDED THAT LICENSES SHOULD BE ISSUED ONLY TO
THOSE STATIONS WHOSE OPERATION WOULD RENDER A BENEFIT TO THE PUBLIC,
ARE NECESSARY IN THE PUBLIC INTEREST, OR WOULD CONTRIBUTE TO THE
DEVELOPMENT OF THE ART. THIS PRINCIPLE WAS APPROVED BY EVERY WITNESS
BEFORE YOUR COMMITTEE.  WE HAVE WRITTEN IT INTO THE BILL.  IF ENACTED
INTO LAW, THE BROADCASTING PRIVILEGE WILL NOT BE A RIGHT OF
SELFISHNESS.  IT WILL REST UPON AN ASSURANCE OF PUBLIC INTEREST TO BE
SERVED."  67 CONG.REC.  5479. 

/6/  RADIO ACT OF 1927, SEC. 4, 44 STAT. 1163.  SEE GENERALLY DAVIS,
THE RADIO ACT OF 1927, 13 VA.L.REV.  611 (1927). 

/7/  AS EARLY AS 1930, SENATOR DILL EXPRESSED THE VIEW THAT THE
FEDERAL RADIO COMMISSION HAD THE POWER TO MAKE REGULATIONS REQUIRING A
LICENSEE TO AFFORD AN OPPORTUNITY FOR PRESENTATION OF THE OTHER SIDE ON
"PUBLIC QUESTIONS."  HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE
COMMERCE ON S. 6, 71ST CONG., 2D SESS., 1616 (1930): 

"SENATOR DILL.  THEN YOU ARE SUGGESTING THAT THE PROVISION OF THE
STATUTE THAT NOW REQUIRES A STATION TO GIVE EQUAL OPPORTUNITY TO
CANDIDATES FOR OFFICE SHALL BE APPLIED TO ALL PUBLIC QUESTIONS? 

"COMMISSIONER ROBINSON.  OF COURSE, I THINK IN THE LEGAL CONCEPT THE
LAW REQUIRES IT NOW.  I DO NOT SEE THAT THERE IS ANY NEED TO LEGISLATE
ABOUT IT.  IT WILL EVOLVE ONE OF THESE DAYS.  SOMEBODY WILL GO INTO
COURT AND SAY, 'I AM ENTITLED TO THIS OPPORTUNITY,' AND HE WILL GET
IT. 

"SENATOR DILL.  HAS THE COMMISSION CONSIDERED THE QUESTION OF MAKING
REGULATIONS REQUIRING THE STATIONS TO DO THAT? 

"COMMISSIONER ROBINSON.  OH, NO. 

"SENATOR DILL.  IT WOULD BE WITHIN THE POSER OF THE COMMISSION, I
THINK, TO MAKE REGULATIONS ON THAT SUBJECT." 

/8/  FEDERAL HOUSING ADMINISTRATION V. DARLINGTON, INC., 358 U.S.
84, 90 (1958); GLIDDEN CO. V. ZDANOK, 370 U.S. 530, 541 (1962) (OPINION
OF MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART).  THIS PRINCIPLE IS A VENERABLE ONE.  ALEXANDER V. ALEXANDRIA,
5 CRANCH 1 (1809); UNITED STATES V. FREEMAN, 3 HOW.  556 (1845);
STOCKDALE V. THE INSURANCE COMPANIES, 20 WALL.  323 (1874). 

/9/  ZEMEL V. RUSK, 381 U.S. 1, 11-12 (1965); UDALL V. TALLMAN, 380
U.S. 1, 16-18 (1965); COMMISSIONER V. STERNBERGER'S ESTATE, 348 U.S.
187, 199 (1955); HASTINGS & D. R. CO. V. WHITNEY, 132 U.S. 357, 366
(1889); UNITED STATES V. BURLINGTON & MISSOURI RIVER R. CO., 98 U.S.
334, 341 (1879); UNITED STATES V. ALEXANDER, 12 WALL, 177, 179-181
(1871); SURGETT V. LAPICE, 8 HOW.  48, 68 (1850). 

/10/  ZEMEL V. RUSK, 381 U.S. 1, 11-12 (1965); UNITED STATES V.
BERGH, 352 U.S. 40, 46-47 (1956); ALSTATE CONSTRUCTION CO. V. DURKIN,
345 U.S. 13, 16-17 (1953); COSTANZO V. TILLINGHAST, 287 U.S. 341, 345
(1932). 

/11/  AN ATTEMPT TO LIMIT SHARPLY THE FCC'S POWER TO INTERFERE WITH
PROGRAMMING PRACTICES FAILED TO EMERGE FROM COMMITTEE IN 1943.  S. 814,
78TH CONG., 1ST SESS. (1943).  SEE HEARINGS ON S. 814 BEFORE THE SENATE
COMMITTEE ON INTERSTATE COMMERCE, 78TH CONG., 1ST SESS. (1943).  ALSO,
ATTEMPTS SPECIFICALLY TO ENACT THE DOCTRINE FAILED IN THE RADIO ACT OF
1927, 67 CONG.REC.  12505 (1926) (AGREEING TO AMENDMENT PROPOSED BY
SENATOR DILL ELIMINATING COVERAGE OF "QUESTION AFFECTING THE PUBLIC"),
AND A SIMILAR PORPOSAL IN THE COMMUNICATIONS ACT OF 1934 WAS ACCEPTED
BY THE SENATE, 78 CONG.REC.  8854 (1934); SEE S. REP. NO. 781, 73D
CONG., 2D SESS., 8 (1934), BUT WAS NOT INCLUDED IN THE BILL REPORTED BY
THE HOUSE COMMITTEE, SEE H.R. REP. NO. 1850, 73D CONG., 2D SESS.
(1934).  THE ATTEMPT WHICH CAME NEAREST SUCCESS WAS A BILL, H.R. 7716,
72D CONG., 1ST SESS. (1932), PASSED BY CONGRESS BUT POCKET-VETOED BY
THE PRESIDENT IN 1933, WHICH WOULD HAVE EXTENDED "EAUAL OPPORTUNITIES"
WHENEVER A PUBLIC QUESTION WAS TO BE VOTED ON AT AN ELECTION OR BY A
GOVERNMENT AGENCY.  H.R. REP. NO. 2106, 72D CONG., 2D SESS., 6 (1933). 
IN ANY EVENT, UNSUCCESSFUL ATTEMPTS AT LEGISLATION ARE NOT THE BEST OF
GUIDES TO LEGISLATIVE INTENT.  FOGARTY V. UNITED STATES, 340 U.S. 8, 13
14 (1950); UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258, 2810282
(1947).  A REVIEW OF SOME OF THE LEGISLATIVE HISTORY OVER THE YEARS,
DRAWING A SOMEWHAT DIFFERENT CONCLUSION IS FOUND IN STAFF STUDY OF THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, LEGISLATIVE HISTORY
OF THE FAIRNESS DOCTRINE, 90TH CONG., 2D SESS. (COMM. PRINT.  1968). 
THIS INCONCLUSIVE HISTORY WAS, OF COURSE, SUPERSEDED BY THE SPECIFIC
STATUTORY LANGUAGE ADDED IN 1959.     /12/  "SEC.  326.  CENSORSHIP. 

"NOTHING IN THIS CHAPTER SHALL BE UNDERSTOOD OR CONSTRUED TO GIVE
THE COMMISSION THE POWER OF CENSORSHIP OVER THE RADIO COMMUNICATIONS OR
SIGNALS TRANSMITTED BY ANY RADIO STATION, AND NO REGULATION OR
CONDITIONS SHALL BE PROMULGATED OR FIXED BY THE COMMISSION WHICH SHALL
INTERFERE WITH THE RIGHT OF FREE SPEECH BY MEANS OF RADIO
COMMUNICATION." 

/13/  JOHN P. CROMMELIN, 19 P & F RADIO REG. 1392 (1960). 

/14/  THE PROXMIRE AMENDMENT READ:  "(BUT NOTHING IN THIS SENTENCE
SHALL BE CONSTRUED AS CHANGING THE BASIC INTENT OF CONGRESS WITH
RESPECT TO THE PROVISIONS OF THIS ACT, WHICH RECOGNIZES THAT TELEVISION
AND RADIO FREQUENCIES ARE IN THE PUBLIC DOMAIN, THAT THE LICENSE TO
OPERATE IN SUCH FREQUENCIES REQUIRES OPERATION IN THE PUBLIC INTEREST,
AND THAT IN NEWSCASTS, NEWS INTERVIEWS, NEWS DOCUMENTARIES, ON-THE-SPOT
COVERAGE OF NEWS EVENTS, AND PANEL DISCUSSIONS, ALL SIDES OF PUBLIC
CONTROVERSIES SHALL BE GIVEN AS EQUAL AN OPPORTUNITY TO BE HEARD AS IS
PRACTICALLY POSSIBLE."  105 CONG.REC.  14457. 

/15/  THE GENERAL PROBLEMS RAISED BY A TECHNOLOGY WHICH SUPPLANTS
ATOMIZED, RELATIVELY INFORMAL COMMUNICATION WITH MASS MEDIA AS A PRIME
SOURCE OF NATIONAL COHESION AND NEWS WERE DISCUSSED AT CONSIDERABLE
LENGTH BY ZECHARIAH CHAFEE IN GOVERNMENT AND MASS COMMUNICATIONS
(1947).  DEBATE ON THE PARTICULAR IMPLICATIONS OF THIS VIEW FOR THE
BROADCASTING INDUSTRY HAS CONTINUED UNABATED.  A COMPENDIUM OF VIEWS
APPEARS IN FREEDOM AND RESPONSIBILITY IN BROADCASTING (J. COONS ED.) 
(1961).  SEE ALSO KALVEN, BROADCASTING, PUBLIC POLICY AND THE FIRST
AMENDMENT, 10 J.LAW & ECON.  15 (1967); M. ERNST, THE FIRST FREEDOM 125
180 (1946); T. ROBINSON, RADIO NETWORKS AND THE FEDERAL GOVERNMENT,
ESPECIALLY AT 75-87 (1943).  THE CONSIDERATIONS WHICH THE NEWEST
TECHNOLOGY BRINGS TO BEAR ON THE PARTICULAR PROBLEM OF THIS LITIGATION
ARE CONCISELY EXPLORED BY LOUISE JAFFE IN THE FAIRNESS DOCTRINE, EQUAL
TIME, REPLY TO PERSONAL ATTACKS, AND THE LOCAL SERVICE OBLIGATION;
IMPLICATIONS OF TECHNOLOGICAL CHANGE, PRINTED FOR SPECIAL SUBCOMMITTEE
ON INVESTIGATIONS OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE (1968). 

/16/ THE RANGE OF CONTROLS WHICH HAVE IN FACT BEEN IMPOSED OVER THE
LAST 40 YEARS, WITHOUT GIVING RISE TO SUCCESSFUL CONSTITUTIONAL
CHALLENGE IN THIS COURT, IS DISCUSSED IN W. EMERY, BROADCASTING AND
GOVERNMENT:  RESPONSIBILITIES AND REGULATIONS (1961); NOTE, REGULATION
OF PROGRAM CONTENT BY THE FCC, 77 HARV.L.REV.  701 (1964). 

/17/  THIS HAS NOT PREVENTED VIGOROUS ARGUMENT FROM DEVELOPING ON
THE CONSTITUTIONALITY OF THE ANCILLARY FCC DOCTRINES.  COMPARE BARROW,
THE EQUAL OPPORTUNITIES AND FAIRNESS DOCTRINES IN BROADCASTING:
PILLARS IN THE FORUM OF DEMOCRACY, 37 U.CIN.L.REV.  447 (1968), WITH
ROBINSON, THE FCC AND THE FIRST AMENDMENT:  OBSERVATIONS ON 40 YEARS OF
RADIO AND TELEVISION REGULATION, 52 MINN.L.REV.  67 (1967), AND
SULLIVAN, EDITORIALS AND CONTROVERSY:  THE BROADCASTER'S DILEMMA, 32
GEO.WASH.L.REV.  719 (1964). 

/18/  THE EXPRESSION OF VIEWS OPPOSING THOSE WHICH BROADCASTERS
PERMIT TO BE AIRED IN THE FIRST PLACE NEED NOT BE CONFINED SOLELY TO
THE BROADCASTERS THEMSELVES AS PROXIES.  "NOR IS IT ENOUGH THAT THE
SHOULD HEAR THE ARGUMENTS OF ADVERSARIES FROM HIS OWN TEACHERS,
PRESENTED AS THEY STATE THEM, AND ACCOMPANIED BY WHAT THEY OFFER AS
REFUTATIONS.  THAT IS NOT THE WAY TO DO JUSTICE TO THE ARGUMENTS, OR
BRING THEM INTO REAL CONTACT WITH HIS OWN MIND.  HE MUST BE ABLE TO
HEAR THEM FROM PERSONS WHO ACTUALLY BELIEVE THEM; WHO DEFEND THEM IN
EARNEST, AND DO THEIR VERY UTMOST FOR THEM."  J. MILL, ON LIBERTY 32
(R. MCCALLUM ED. 1947). 

/19/  THE PRESIDENT OF THE COLUMBIA BROADCASTING SYSTEM HAS RECENTLY
DECLARED THAT DESPITE THE GOVERNMENT, "WE ARE DETERMINED TO CONTINUE
COVERING CONTROVERSIAL ISSUES AS A PUBLIC SERVICE, AND EXERCISING OUR
OWN INDEPENDENT NEWS JUDGMENT AND ENTERPRISE.  I, FOR ONE, REFUSE TO
ALLOW THAT JUDGMENT AND ENTERPRISE TO BE AFFECTED BY OFFICIAL
INTIMIDATION."  F. STANTON, KEYNOTE ADDRESS, SIGMA DELTA CHI NATIONAL
CONVENTION, ATLANTA, GEORGIA, NOVEMBER 21, 1968.  PROBLEMS OF NEWS
COVERAGE FROM THE BROADCASTER'S VIEWPOINT ARE SURVEYED IN W. WOOD,
ELECTRONIC JOURNALISM (1967). 

/20/  CURRENT DISCUSSIONS OF THE FREQUENCY ALLOCATION PROBLEM APPEAR
IN TELECOMMUNICATION SCIENCE PANEL, COMMERCE TECHNICAL ADVISORY BOARD,
U.S. DEPT. OF COMMERCE, ELECTROMAGNETIC SPECTRUM UTILIZATION-- THE
SILENT CRISIS (1966); JOINT TECHNICAL ADVISORY COMMITTEE, INSTITUTE OF
ELECTRICAL AND ELECTRONICS ENGINEERS AND ELECTRONIC INDUSTRIES ASSN.,
REPORT ON RADIO SPECTRUM UTILIZATION ALLOCATION, 53 IOWA L.REV.  437
(1967).  A RECENTLY RELEASED STUDY IS THE FINAL REPORT OF THE
PRESIDENT'S TASK FORCE ON COMMUNICATIONS POLICY (1968). 

/21/  BENDIX AVIATION CORP. V. FCC, 106 U.S.APP.D.C. 304, 272 F.2D
533 (1959), CERT. DENIED, 361 U.S. 965 (1960). 

/22/  1968 FCC ANNUAL REPORT 65-69. 

/23/  NEW LIMITATIONS ON THESE USERS, WHO CAN ALSO LAY CLAIM TO
FIRST AMENDMENT PROTECTION, WERE SUSTAINED AGAINST FIRST AMENDMENT
ATTACK WITH THE COMMENT, "HERE IS TRULY A SITUATION WHERE IF EVERYBODY
COULD SAY ANYTHING, MANY COULD SAY NOTHING."  LAFAYETTE RADIO
ELECTRONICS CORP. V. UNITED STATES, 345 F.2D 278, 281 (1965).  ACCORD,
CALIFORNIA CITIZENS BAND ASSN. V. UNITED STATES, 375 F.2D 43 (C.A. 9TH
CIR.), CERT. DENIED, 389 U.S. 844 (1967). 

/24/  KESSLER V. FCC, 117 U.S.APP.D.C. 130, 326 F.2D 673 (1963). 

/25/  IN A TABLE PREPARED BY THE FCC ON THE BASIS OF STATISTICS
CURRENT AS OF AUGUST 31, 1968, VHF AND UHF CHANNELS ALLOCATED TO AND
THOSE AVAILABLE IN THE TOP 100 MARKET AREAS FOR TELEVISION ARE SET
FORTH:  (TABLE OMITTED) 

/26/  RTNDA ARGUES THAT THESE REGULATIONS SHOULD BE HELD INVALID FOR
FAILURE OF THE FCC TO MAKE SPECIFIC FINDINGS IN THE RULE-MAKING
PROCEEDING RELATING TO THESE FACTUAL QUESTIONS.  PRESUMABLY THE
FAIRNESS DOCTRINE AND THE PERSONAL ATTACK DECISIONS THEMSELVES, SUCH AS
RED LION, SHOULD FALL FOR THE SAME REASON.  BUT THIS ARGUMENT IGNORES
THE FACT THAT THESE REGULATIONS ARE NO MORE THAN THE DETAILED
SPECIFICATION OF CERTAIN CONSEQUENCES OF LONG-STANDING RULES, THE NEED
FOR WHICH WAS RECOGNIZED BY THE CONGRESS ON THE FACTUAL PREDICATE OF
SCARCITY MADE PLAIN IN 1927, RECOGNIZED BY THIS COURT IN THE 1943
NATIONAL BROADCASTING CO. CASE, AND REAFFIRMED BY THE CONGRESS AS
RECENTLY AS 1959.  "IF THE NUMBER OF RADIO AND TELEVISION STATIONS WERE
NOT LIMITED BY AVAILABLE FREQUENCIES, THE COMMITTEE WOULD HAVE NO
HESITATION IN REMOVING COMPLETELY THE PRESENT PROVISION REGARDING EQUAL
TIME AND URGE THE RIGHT OF EACH BROADCASTER TO FOLLOW HIS OWN
CONSCIENCE.  . . . HOWEVER, BROADCAST FREQUENCIES ARE LIMITED AND,
THEREFORE, THEY HAVE BEEN NECESSARILY CONSIDERED A PUBLIC TRUST."  S.
REP. NO. 562, 86TH CONG., 1ST SESS., 8-9 (1959).  IN LIGHT OF THIS
HISTORY; THE OPPORTUNITY WHICH THE BROADCASTERS HAVE HAD TO ADDRESS THE
FCC AND SHOW THAT SOMEHOW THE SITUATION HAD RADICALLY CHANGED,
UNDERCUTTING THE VALIDITY OF THE CONGRESSIONAL JUDGMENT; AND THEIR
FAILURE TO ADDUCE ANY CONVINCING EVIDENCE OF THAT IN THE RECORD HERE,
WE CANNOT CONSIDER THE ABSENCE OF MORE DETAILED FINDINGS BELOW TO BE
DETERMINATIVE. 

/27/  THE "AIRWAVES (NEED NOT) BE FILLED AT THE EARLIEST POSSIBLE
MOMENT IN ALL CIRCUMSTANCES WITHOUT DUE REGARD FOR THESE IMPORTANT
FACTORS."  COMMUNITY BROADCASTING CO. V. FCC, 107 U.S.APP.D.C. 95, 105,
274 F.2D 753, 763 (1960).  ACCORD, ENFORCING THE FAIRNESS DOCTRINE,
OFFICE OF COMMUNICATION OF THE UNITED CHURCH OF CHRIST V. FCC, 123
U.S.APP.D.C. 328, 343, 359 F.2D 994, 1009 (1966). 

/28/ WE NEED NOT DEAL WITH THE ARGUMENT THAT EVEN IF THERE IS NO
LONGER A TECHNOLOGICAL SCARCITY OF FREQUENCIES LIMITING THE NUMBER OF
BROADCASTERS, THERE NEVERTHELESS IS AN ECONOMIC SCARCITY IN THE SENSE
THAT THE COMMISSION COULD OR DOES LIMIT ENTRY TO THE BROADCASTING
MARKET ON ECONOMIC GROUNDS AND LICENSE NO MORE STATIONS THAN THE MARKET
WILL SUPPORT.  HENCE, IT IS SAID, THE FAIRNESS DOCTRINE OR ITS
EQUIVALENT IS ESSENTIAL TO SATISFY THE CLAIMS OF THOSE EXCLUDED AND OF
THE PUBLIC GENERALLY.  A RELATED ARGUMENT, WHICH WE ALSO PUT ASIDE, IS
THAT QUITE APART FROM SCARCITY OF FREQUENCIES, TECHNOLOGICAL OR
ECONOMIC, CONGRESS DOES NOT ABRIDGE FREEDOM OF SPEECH OR PRESS BY
LEGISLATION DIRECTLY OR INDIRECTLY MULTIPLYING THE VOICES AND VIEWS
PRESENTED TO THE PUBLIC THROUGH TIME SHARING, FAIRNESS DOCTRINES, OR
OTHER DEVICES WHICH LIMIT OR DISSIPATE THE POWER OF THOSE WHO SIT
ASTRIDE THE CHANNELS OF COMMUNICATION WITH THE GENERAL PUBLIC.  CF.
CITIZEN PUBLISHING CO. V. UNITED STATES, 394 U.S. 131 (1969). 

ROGER ROBB ARGUED THE CAUSE FOR PETITIONERS IN NO. 2.  WITH HIM ON
THE BRIEF WERE H. DONALD KISTLER AND THOMAS B. SWEENEY.  SOLICITOR
GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES AND THE FEDERAL
COMMUNICATION COMMISSION, PETITIONER IN NO. 717 AND RESPONDENTS IN NO.
2.  WITH HIM ON THE BRIEF WERE ASSITANT ATTORNY GENERAL MCLAREN, DEPUTY
SOLICITOR GENERAL SPRINGER, FRANCIS X. BEYTAGH, JR., HENRY GELLER, AND
DANIEL R. OHLBAUM. 

ARCHIBALD COX ARGUED THE CAUSE FOR RESPONDENTS IN NO. 717.  WITH HIM
ON THE BRIEF FOR RESPONDENTS RADIO TELEVISION NEWS DIRECTORS ASSN. ET
AL. WERE W. THEODORE PIERSON, HAROLD DAVID COHEN, VERNON C. KOHLHAAS,
AND J. LAURNENT SCHARFF.  ON THE BRIEF FOR RESPONDENT NATIONAL
BROADCASTING CO., INC., WERE LAWRENCE J. MCKAY, RAYMOND L. FALLS, JR.,
CORYDON B. DUNHAM, HOWARD MONDERER, AND ABRAHAM P. ORDOVER.  ON THE
BRIEF FOR RESPONDENT COLUMBIA BROADCASTING SYSTEM, INC., WERE LLOYD N.
CUTLER, J. ROGER WOLLENBERG, TIMOTHY B. DYK, ROBERT V. EVANS, AND
HERBERT WECHSLER. 

BRIEFS OF AMICI CURIAE URGING REVERSAL IN NO. 717 AND AFFIRMANCE IN
NO. 2 WERE FILED BY MELVIN L. WULF AND ELEANOR HOLMES NORTON FOR THE
AMERICAN CIVIL LIBERTIES UNION, AND BY EARLE K. MOORE AND WILLIAM B.
BALL FOR THE OFFICE OF COMMUNICATION OF THE UNITED CHURCH OF CHRIST ET
AL. J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR & CONGRESS OF INDUSTRIAL
ORGANIZATIONS URGING REVERSAL IN 717. 
..END :







WILLINGHAM V. MORGAN, 395 U.S. 402 


       WILLINGHAM, WARDEN, ET AL. V. MORGAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

        TENTH CIRCUIT. 

        NO. 228.  ARGUED APRIL 22, 1969.-- DECIDED JUNE 9, 1969. 


RESPONDENT, A FEDERAL PRISONER, BROUGHT A TORT ACTION IN STATE COURT
AGAINST PETITIONERS, THE WARDEN AND CHIEF MEDICAL OFFICER OF A FEDERAL
PENITENTIARY, WHO THEN PETITIONED FOR REMOVAL OF THE ACTION TO THE
UNITED STATES DISTRICT COURT UNDER 28 U.S.C. 1442(A)(1).  THAT STATUTE
ALLOWS REMOVAL TO FEDERAL COURTS OF ANY CIVIL ACTION AGAINST A FEDERAL
OFFICER "FOR ANY ACT UNDER COLOR OF (HIS) OFFICE."  PETITIONERS ON
REMOVAL MOVED FOR SUMMARY JUDGMENT, SUBMITTING AFFIDAVITS THAT THEIR
ONLY CONTACTS WITH RESPONDENT HAD BEEN IN THE PERFORMANCE OF THEIR
OFFICIAL DUTIES AS WARDEN WITHIN THE PENITENTIARY CONFINES AND AT THE
PRISON HOSPITAL RESPECTIVELY, WHICH RESPONDENT DID NOT DENY IN HIS
RESPONSIVE AFFIDAVIT.  THE DISTRICT COURT DENIED RESPONDENT'S MOTION TO
REMAND AND GRANTED SUMMARY JUDGMENT, HOLDING THAT THE OFFICIAL IMMUNITY
DOCTRINE OF BARR V. MATIO, 360 U.S. 564, BARRED RESPONDENT'S RECOVERY
OF DAMAGES.  THE COURT OF APPEALS, WITHOUT REACHING THE IMMUNITY ISSUE,
FOUND INSUFFICIENT BASIS IN THE RECORD TO SUPPORT THE DISTRICT COURT'S
REFUSAL TO REMAND TO THE STATE COURT, HOLDING THAT THE "COLOR OF
OFFICE" TEST FOR REMOVAL UNDER SEC. 1442(A)(1) IS "MUCH NARROWER" THAN
THE "OFFICIAL IMMUNITY" STANDARD OF BARR V. MATIO, SUPRA.  HELD: 

1.  THE RIGHT OF REMOVAL UNDER SEC. 1442(A)(1) IS MADE ABSOLUTE
WHENEVER SA SUIT IN A STATE COURT IS FOR ANY ACT "UNDER COLOR" OF
FEDERAL OFFICE, AND THE TEST FOR REMOVAL UNDER THAT STATUTE IS BROADER,
NOT NARROWER, THAN THE TEST FOR OFFICIAL IMMUNITY.  PP. 404-407. 

2.  IN THIS CIVIL SUIT PETITIONERS SUFFICIENTLY SHOWED THAT THEIR
RELATIONSHIP TO RESPONDENT DERIVED SOLELY FROM THEIR OFFICIAL DUTIES
AGAINST RESPONDENT'S CHARGE THAT THEY WERE ENGAGED IN SOME KIND OF
"FROLIC OF THEIR OWN," AND PETITIONERS SHOULD HAVE THE OPPORTUNITY OF
PRESENTING THEIR VERSION OF THE FACTS TO A FEDERAL, NOT A STATE,
COURT.  PP. 407-410. 

383 F.2D 139, VACATED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES SOME IMPORTANT QUESTIONS ABOUT THE POWER OF FEDERAL
OFFICIALS TO HAVE ACTIONS BROUGHT AGAINST THEM REMOVED TO THE FEDERAL
COURTS.  PETITIONERS WILLINGHAM AND JARVIS ARE, RESPECTIVELY, THE
WARDEN AND CHIEF MEDICAL OFFICER AT THE UNITED STATES PENITENTIARY AT
LEAVENWORTH, KANSAS.  RESPONDENT MORGAN WAS A PRINSONER AT THE
PENITENTIARY AT THE TIME HE FILED THIS SUIT IN THE LEAVENWORTH COUNTY
DISTRICT COURT.  HE ALLEGED IN HIS COMPLAINT THAT PETITIONERS AND
OTHER, ANONYMOUS, DEFENDANTS HAD ON NUMEROUS OCCASIONS INOCULATED HIM
WITH "A DELETERIOUS FOREIGN SUBSTANCE" AND HAD ASSAULTED, BEATEN, AND
TORTURED HIM IN VARIOUS WAYS, TO HIS GREAT INJURY.  HE ASKED FOR A
TOTAL OF $3,285,000 IN DAMAGES FROM PETITIONERS ALONE, PLUS OTHER
AMOUNTS FROM THE UNNAMED DEFENDANTS.  PETITIONERS FILED A PETITION FOR
REMOVAL OF THE ACTION TO THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS, ALLEGING THAT ANYTHING THEY MAY HAVE DONE TO
RESPONDENT "WAS DONE AND MADE BY THEM IN THE COURSE OF THEIR DUTIES AS
OFFICERS OF THE UNITED STATES OF AMERICA . . . AND UNDER COLOR OF SUCH
OFFICES.  . . . "  PETITIONERS INVOKED 28 U.S.C. 1442(A)(1), WHICH
ALLOWS REMOVAL TO THE FEDERAL COURTS OF ANY CIVIL ACTION AGAINST "(ANY
OFFICER OF THE UNITED STATES . . . FOR ANY ACT UNDER COLOR OF SUCH
OFFICE.  . . . "  /1/  THE FEDERAL DISTRICT JUDGE DENIED RESPONDENT'S
MOTION TO REMAND THE CASE TO THE STATE COURTS AND GRANTED SUMMARY
JUDGMENT TO PETITIONERS, HOLDING THAT RECOVERY OF DAMAGES WAS BARRED BY
THE OFFICIAL IMMUNITY DOCTRINE OF BARR V. MATTEO, 360 U.S. 564 (1959). 
THEREAFTER, RESPONDENT PERFECTED AN APPEAL TO THE COURT OF APPEALS FOR
THE TENTH CIRCUIT.  THAT COURT FOUND IT UNNECESSARY TO DECIDE THE
IMMUNITY QUESTION, FOR IT FOUND INSUFFICIENT BASIS IN THE RECORD TO
SUPPORT THE DISTRICT COURT'S REFUSAL TO REMAND THE CASE TO THE STATE
COURTS.  383 F.2D 139 (1967).  THE DISTRICT COURT WAS REVERSED AND THE
CASE REMANDED FOR FURTHER PROCEEDINGS.  UPON THE SOLICITOR GENERAL'S
PETITION, WE GRANTED CERTIORARI TO CONSIDER WHETHER THE COURT OF
APPEALS DECIDED THE REMOVAL QUESTION ERRONEOUSLY.  /2/  393 U.S. 976
(1968) WE REVERSE. 

        I. 

THE COURT BELOW HELD THAT THE "COLOR OF OFFICE" TEST OF SEC.
1442(A)(1) "PROVIDES A RATHER LIMITED BASIS FOR REMOVAL."  383 F.2D,AT
141.  IT NOTED THAT THE RECORD MIGHT WELL HAVE SUPPORTED A FINDING THAT
PETITIONERS WERE PROTECTED FROM A DAMAGE SUIT BY THE OFFICIAL IMMUNITY
DOCTRINE.  BUT IT HELD THAT THE TEST FOR REMOVAL WAS "MUCH NARROWER"
THAN THE TEST FOR OFFICIAL IMMUNITY, 383 F.2D,AT 142, AND ACCORDINGLY
THAT PETITIONERS MIGHT HAVE TO LITIGATE THEIR IMMUNITY DEFENSE IN THE
STATE COURTS.  THE GOVERNMENT CONTENDS THAT THIS TURNS THE REMOVAL
STATUTE ON ITS HEAD.  IT ARGUES THAT THE REMOVAL STATUTE IS AN INCIDENT
OF FEDERAL SUPREMACY, AND THAT ONE OF ITS PURPOSES WAS TO PROVIDE A
FEDERAL FORUM FOR CASES WHERE FEDERAL OFFICIALS MUST RAISE DEFENSES
ARISING FROM THEIR OFFICIAL DUTIES.  ON THIS VIEW, THE TEST FOR REMOVAL
SHOULD BE BROADER, NOT NARROWER, THAN THE TEST FOR OFFICIAL IMMUNITY. 
WE AGREE. 

THE FEDERAL OFFICER REMOVAL STATUTE HAS HAD A LONG HISTORY.  SEE H.
M. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1147
1150 (1953).  THE FIRST SUCH REMOVAL PROVISION WAS INCLUDED IN AN 1815
CUSTOMS STATUTE.  ACT OF FEBRUARY 4, 1815, SEC. 8, 3 STAT. 198.  IT WAS
PART OF AN ATTEMPT TO ENFORCE AN EMBARGO ON TRADE WITH ENGLAND OVER THE
OPPOSITION OF THE NEW ENGLAND STATES, WHERE THE WAR OF 1812 WAS QUITE
UNPOPULAR.  IT ALLOWED FEDERAL OFFICIALS INVOLVED IN THE ENFORCEMENT OF
THE CUSTOMS STATUTE TO REMOVE TO THE FEDERAL COURTS ANY SUIT OR
PROSECUTION COMMENCED BECAUSE OF ANY ACT DONE "UNDER COLOUR" OF THE
STATUTE.  OBVIOUSLY, THE REMOVAL PROVISION WAS AN ATTEMPT TO PROTECT
FEDERAL OFFICERS FROM INTERFERENCY BY HOSTILE STATE COURTS.  THIS
PROVISION WAS NOT, HOWEVER, PERMANENT; IT WAS BY ITS TERMS TO EXPIRE AT
THE END OF THE WAR.  BUT OTHER PERIODS OF NATIONAL STRESS SPAWNED
SIMILAR ENACTMENTS.  SOUTH CAROLINA'S THREATS OF NULLIFICATION IN 1833
LED TO THE PASSAGE OF THE SO-CALLED FORCE BILL, WHICH ALLOWED REMOVAL
OF ALL SUITS OR PROSECUTIONS FOR ACTS DONE UNDER THE CUSTOMS LAWS.  ACT
OF MARCH 2, 1833, SEC. 3, 4 STAT. 633.  A NEW GROUP OF REMOVAL STATUTES
CAME WITH THE CIVIL WAR, AND THEY WERE EVENTUALLY CODIFIED INTO A
PERMANENT STATUTE WHICH APPLIED MAINLY TO CASES GROWING OUT OF
ENFORCEMENT OF THE REVENUE LAWS.  REV. STAT. SEC. 643 (1874); JUDICIAL
CODE OF 1911, SEC. 33, 36 STAT. 1097.  FINALLY, CONGRESS EXTENDED THE
STATUTE TO COVER ALL FEDERAL OFFICERS WHEN IT PASSED THE CURRENT
PROVISION AS PART OF THE JUDICIAL CODE OF 1948.  SEE H.R. REP. NO. 308,
80TH CONG., 1ST SESS., A134 (1947). 

THE PURPOSE OF ALL THESE ENACTMENTS IS NOT HARD TO DISCERN.  AS THIS
COURT SAID NEARLY 90 YEARS AGO IN TENNESSEE V. DAVIS, 100 U.S. 257, 263
(1880), THE FEDERAL GOVERNMENT 

"CAN ACT ONLY THROUGH ITS OFFICERS AND AGENTS, AND THEY MUST ACT
WITHIN THE STATES.  IF, WHEN THUS ACTING, AND WITHIN THE SCOPE OF THEIR
AUTHORITY, THOSE OFFICERS CAN BE ARRESTED AND BROUGHT TO TRIAL IN A
STATE COURT, FOR AN ALLEGED OFFENCE AGAINST THE LAW OF THE STATE, YET
WARRANTED BY THE FEDERAL AUTHORITY THEY POSSESS, AND IF THE GENERAL
GOVERNMENT IS POWERLESS TO INTERFERE AT ONCE FOR THEIR PROTECTION,-- IF
THEIR PROTECTION MUST BE LEFT TO THE ACTION OF THE STATE COURT,-- THE
OPERATIONS OF THE GENERAL GOVERNMENT MAY AT ANY TIME BE ARRESTED AT THE
WILL OF ONE OF ITS MEMBERS."  FOR THIS VERY BASIC REASON, THE RIGHT OF
REMOVAL UNDER SEC. 1442(A)(1) IS MADE ABSOLUTE WHENEVER A SUIT IN A
STATE COURT IF FOR ANY ACT "UNDER COLOR" OF FEDERAL OFFICE, REGARDLESS
OF WHETHER THE SUIT COULD ORIGINALLY HAVE BEEN BROUGHT IN A FEDERAL
COURT.  FEDERAL JURISDICTION RESTS ON A "FEDERAL INTEREST IN THE
MATTER," POSS V. LIEBERMAN, 299 F.2D 358, 359 (C.A. 2D CIR.), CERT.
DENIED, 370 U.S. 944 (1962), THE VERY BASIC INTEREST IN THE ENFORCEMENT
OF FEDERAL LAW THROUGH FEDERAL OFFICIALS. 

VIEWED IN THIS CONTEXT, THE RULING OF THE COURT BELOW CANNOT BE
SUSTAINED.  THE FEDERAL OFFICER REMOVAL STATUTE IS NOT "NARROW" OR
"LIMITED."  COLORADO V. SYMES, 286 U.S. 510, 517 (1932).  AT THE VERY
LEAST, IT IS BROAD ENOUGH TO COVER ALL CASES WHERE FEDERAL OFFICERS CAN
RAISE A COLORABLE DEFENSE ARISING OUT OF THEIR DUTY TO ENFORCE FEDERAL
LAW.  ONE OF THE PRIMARY PURPOSES OF THE REMOVAL STATUTE-- AS ITS
HISTORY CLEARLY DEMONSTRATES-- WAS TO HAVE SUCH DEFENSES LITIGATED IN
THE FEDERAL COURTS.  THE POSITION OF THE COURT BELOW WOULD HAVE THE
ANOMALOUS RESULT OF ALLOWING REMOVAL ONLY WHEN THE OFFICERS HAD A
CLEARLY SUSTAINABLE DEFENSE.  THE SUIT WOULD BE REMOVED ONLY TO BE
DISMISSED.  CONGRESS CERTAINLY MEANT MORE THAN THIS WHEN IT CHOSE THE
WORDS "UNDER COLOR OF . . . OFFICE."  IN FACT, ONE OF THE MOST
IMPORTANT REASONS FOR REMOVAL IS TO HAVE THE VALIDITY OF THE DEFENSE OF
OFFICIAL IMMUNITY TRIED IN A FEDERAL COURT.  THE OFFICER NEED NOT WIN
HIS CASE BEFORE HE CAN HAVE IT REMOVED.  IN CASES LIKE THIS ONE,
CONGRESS HAS DECIDED THAT FEDERAL OFFICERS, AND INDEED THE FEDERAL
GOVERNMENT ITSELF, REQUIRE THE PROTECTION OF A FEDERAL FORUM.  THIS
POLICY SHOULD NOT BE FRUSTRATED BY A NARROW, GRUDGING INTERPRETATION OF
SEC. 1442(A)(1). 

        II. 

THE QUESTION REMAINS, HOWEVER, WHETHER THE RECORD IN THIS CASE WILL
SUPPORT A FINDING THAT RESPONDENT'S SUIT GROWS OUT OF CONDUCT UNDER
COLOR OF OFFICE, AND THAT IT IS, THEREFORE, REMOVABLE.  RESPONDENT
ALLEGED IN HIS MOTION FOR REMAND THAT PETITIONERS HAD BEEN ACTING "ON A
FROLIC OF THEIR OWN WHICH HAD NO RELEVANCY TO THEIR OFFICIAL DUTIES AS
EMPLOYEES OR OFFICERS OF THE UNITED STATES."  HE ARGUED THAT IN THESE
CIRCUMSTANCES THE CASE SHOULD BE REMANDED TO THE STATE COURTS.  THE
ONLY FACTS IN THE RECORD WHICH IN ANY WAY RESPOND TO THIS ALLEGATION
APPEAR IN PETITIONERS' AFFIDAVITS IN SUPPORT OF THEIR MOTION FOR
SUMMARY JUDGMENT.  /3/  THERE, PETITIONER WILLINGHAM DECLARES THAT THE
ONLY CONTACT HE HAS HAD WITH RESPONDENT WAS "INSIDE THE WALLS OF THE
UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS, AND IN PERFORMANCE OF
(HIS) OFFICIAL DUTIES AS WARDEN OF SAID INSTITUTION."  PETITIONER
JARVIS DECLARES, SIMILARLY, THAT HIS ONLY CONTACT WITH RESPONDENT WAS
AT THE PRISON HOSPITAL "AND ONLY IN THE PERFORMANCE OF (HIS) DUTIES AS
CHIEF MEDICAL OFFICER AND ONLY WITH REGARD TO MEDICAL CARE AND
TREATMENT, DIAGNOSES AND ROUTINE PHYSICAL EXAMINATION."  RESPONDENT DID
NOT DENY EITHER OF THESE STATEMENTS IN HIS RESPONSIVE AFFIDAVIT.  THE
QUESTION, THEN, IS WHETHER PETITIONERS ADEQUATELY DEMONSTRATED A BASIS
FOR REMOVAL BY SHOWING THAT THEIR ONLY CONTACT WITH RESPONDENT OCCURRED
WHILE THEY WERE EXECUTING THEIR FEDERAL DUTIES INSIDE THE
PENITENTIARY. 

THE JUDICIAL CODE REQUIRES DEFENDANTS WHO WOULD REMOVE CASES TO THE
FEDERAL COURTS TO FILE "A VERIFIED PETITION CONTAINING A SHORT AND
PLAIN STATEMENT OF THE FACTS" JUSTIFYING REMOVAL.  28 U.S.C. 1446(A). 
MOREOVER, THIS COURT HAS NOTED THAT "THE PERSON SEEKING THE BENEFIT OF
(THE REMOVAL PROVISIONS) SHOULD BE CANDID, SPECIFIC AND POSITIVE IN
EXPLAINING HIS RELATION TO THE TRANSACTION" WHICH GAVE RISE TO THE
SUIT.  MARYLAND V. SOPER (NO. 1), 270 U.S. 9, 35 (1926); SEE COLORADO
V. SYMES, SUPRA, AT 518-521.  THESE REQUIREMENTS MUST, HOWEVER, BE
TAILORED TO FIT THE FACTS OF EACH CASE. 

IT WAS SETTLED LONG AGO THAT THE FEDERAL OFFICER, IN ORDER TO SECURE
REMOVAL, NEED NOT ADMIT THAT HE ACTUALLY COMMITTED THE CHARGED
OFFENSES.  MARYLAND V. SOPER (NO. 1), SUPRA, AT 32-33.  THUS,
PETITIONERS IN THIS CASE NEED NOT HAVE ADMITTED THAT THEY ACTUALLY
INJURED RESPONDENT.  THEY WERE, THEREFORE, CONFRONTED WITH SOMETHING OF
A DILEMMA.  RESPONDENT HAD FILED A "SCATTERGUN" COMPLAINT, CHARGING
NUMEROUS WRONGS ON NUMEROUS DIFFERENT (AND UNSPECIFIED) DATES.  IF
PETITIONERS WERE TO BE "CANDID, SPECIFIC AND POSITIVE" IN REGARD TO ALL
THESE ALLEGATIONS, THEY WOULD HAVE TO DESCRIBE EVERY CONTACT THEY HAD
EVER HAD WITH PETITIONER, AS WELL AS ALL CONTACTS BY PERSONS UNDER
THEIR SUPERVISION.  THIS WOULD HARDLY HAVE BEEN PRACTICAL, OR EVEN
POSSIBLE, FOR SENIOR OFFICIALS LIKE PETITIONERS. 

IN A CIVIL SUIT OF THIS NATURE, /4/  WE THINK IT WAS SUFFICIENT FOR
PETITIONERS TO HAVE SHOWN THAT THEIR RELATIONSHIP TO RESPONDENT DERIVED
SOLELY FROM THEIR OFFICIAL DUTIES.  PAST CASES HAVE INTERPRETATED THE
"COLOR OF OFFICE" TEST TO REQUIRE A SHOWING OF A "CAUSAL CONNECTION"
BETWEEN THE CHARGED CONDUCT AND ASSERTED OFFICIAL AUTHORITY.  MARYLAND
V. SOPER, (NO. 1), SUPRA, AT 33.  "IT IS ENOUGH THAT (PETITIONERS')
ACTS OR (THEIR) PRESENCE AT THE PLACE IN PERFORMANCE OF (THEIR)
OFFICIAL DUTY CONSTITUTE THE BASIS, THOUGH MISTAKEN OR FALSE, OF THE
STATE PROSECUTION."  IBID.  IN THIS CASE, ONCE PETITIONERS HAD SHOWN
THEIR ONLY CONTACT WITH RESPONDENT OCCURRED INSIDE THE PENITENTIARY,
WHILE THEY WERE PERFORMING THEIR DUTIES, WE BELIEVE THAT THEY HAD
DEMONSTRATED THE REQUIRED "CAUSAL CONNECTION."  THE CONNECTION
CONSISTS, SIMPLY ENOUGH, OF THE UNDISPUTED FACT THAT PETITIONERS WERE
ON DUTY, AT THEIR PLACE OF FEDERAL EMPLOYMENT, AT ALL THE RELEVANT
TIMES.  IF THE QUESTION RAISED IS WHETHER THEY WERE ENGAGED IN SOME
KIND OF "FROLIC OF THEIR OWN" IN RELATION TO RESPONDENT, THEN THEY
SHOULD HAVE THE OPPORTUNITY TO PRESENT THEIR VERSION OF THE FACTS TO A
FEDERAL, NOT A STATE, COURT.  THIS IS EXACTLY WHAT THE REMOVAL STATUTE
WAS DESIGNED TO ACCOMPLISH.  PETITIONERS SUFFICIENTLY PUT IN ISSUE THE
QUESTIONS OF OFFICIAL JUSTIFICATION AND IMMUNITY; THE VALIDITY OF THEIR
DEFENSES SHOULD BE DETERMINED IN THE FEDERAL COURTS. 

THE COURT OF APPEALS, THEREFORE, ERRED WHEN IT HELD THAT PETITIONERS
HAD NOT ADEQUATELY DEMONSTRATED A RIGHT TO HAVE THEIR CASE DECIDED IN
THE FEDERAL COURTS.  BECAUSE OF ITS RESOLUTION OF THE REMOVAL ISSUE,
THE COURT OF APPEALS DID NOT EXPRESS ANY OPINION ON THE PROPRIETY OF
THE DISTRICT COURT'S AWARD OF SUMMARY JUDGMENT.  THAT QUESTION HAS NOT
BEEN BRIEFED OR ARGUED IN THIS COURT.  ACCORDINGLY, WE THINK IT PROPER
TO VACATE THE JUDGMENT AND REMAND THE CASE TO THE COURT OF APPEALS SO
THAT IT MAY CONSIDER THIS AND ANY OTHER QUESTIONS WHICH REMAIN IN THE
CASE. 

              IT IS SO ORDERED. 

/1/  28 U.S.C. 1442(A)(1) PROVIDES: 

"(A) A CIVIL ACTION OR CRIMINAL PROSECUTION COMMENCED IN A STATE
COURT AGAINST ANY OF THE FOLLOWING PERSONS MAY BE REMOVED BY THEM TO
THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT AND DIVISION
EMBRACING THE PLACE WHEREIN IT IS PENDING: 

"(1) ANY OFFICER OF THE UNITED STATES OR ANY AGENCY THEREOF, OR
PERSON ACTING UNDER HIM, FOR ANY ACT UNDER COLOR OF SUCH OFFICE OR ON
ACCOUNT OF ANY RIGHT, TITLE OR AUTHORITY CLAIMED UNDER ANY ACT OF
CONGRESS FOR THE APPREHENSION OR PUNISHMENT OF CRIMINALS OR THE
COLLECTION OF REVENUE." 

/2/  THE OPINION BELOW WAS IN APPARENT CONFLICT WITH AT LEAST THREE
OTHER COURT OF APPEALS DECISIONS.  POSS V. LIEBERMAN, 299 F.2D 358
(C.A. 2D CIR.), CERT. DENIED, 370 U.S. 944 (1962); NORTH CAROLINA V.
CARR, 386 F.2D 129 (C.A. 4TH CIR. 1967); ALLMAN V. HANLEY, 302 F.2D 559
(C.A. 5TH CIR. 1962).     /3/  THIS MATERIAL SHOULD HAVE APPEARED IN
THE PETITION FOR REMOVAL.  HOWEVER, FOR PURPOSES OF THIS REVIEW IT IS
PROPER TO TREAT THE REMOVAL PETITION AS IF IT HAD BEEN AMENDED TO
INCLUDE THE RELEVANT INFORMATION CONTAINED IN THE LATER-FILED
AFFIDAVITS.  SEE 28 U.S.C. 1653; BUELL V. SEARS, ROEBUCK & CO., 321
F.2D 468 (C.A. 10TH CIR. 1963); FIREMEN'S INS. CO. V. ROBBINS COAL CO.,
288 F.2D 349 (C.A. 5TH CIR.), CERT. DENIED, 368 U.S. 875 (1961).  SEE
ALSO AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF JURISDICTION
BETWEEN STATE AND FEDERAL COURTS 264-265 (TENTATIVE DRAFT NO. 6,
1968). 

/4/  WERE THIS A CRIMINAL CASE, A MORE DETAILED SHOWING MIGHT BE
NECESSARY BECAUSE OF THE MORE COMPELLING STATE INTEREST IN CONDUCTING
CRIMINAL TRIALS IN THE STATE COURTS.  CF. COLORADO V. SYMES, SUPRA;
MARYLAND V. SOPER (NO. 1), SUPRA. 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN THE JUDGMENT OF THE COURT AND IN THE OPINION EXCEPT FOR
ONE PORTION WHICH IS QUOTED BELOW IN ANSWER TO THE GOVERNMENT'S
CONTENTION: 

"IT ARGUES THAT THE REMOVAL STATUTE IS AN INCIDENT OF FEDERAL
SUPREMACY, AND THAT ONE OF ITS PURPOSES WAS TO PROVIDE A FEDERAL FORUM
FOR CASES WHERE FEDERAL OFFICIALS MUST RAISE DEFENSES ARISING FROM
THEIR OFFICIAL DUTIES.  ON THIS VIEW, THE TEST FOR REMOVAL SHOULD BE
BROADER, NOT NARROWER, THAN THE TEST FOR OFFICIAL IMMUNITY.  WE
AGREE." 

I SEE NO NECESSITY IN THIS CASE FOR COMPARING THE BREADTH OF THE LAW
AUTHORIZING REMOVAL OF CASES FROM STATE TO FEDERAL COURTS WITH THE TEST
"FOR OFFICIAL IMMUNITY."  THIS CASE RAISES NO QUESTION ABOUT OFFICIAL
IMMUNITY FROM LAWSUITS FOR CONDUCT OF A GOVERNMENT EMPLOYEE.  MOREOVER,
THE DIFFERENCE BETWEEN THE BREADTH OF A RIGHT TO REMOVE AND A RIGHT TO
CLAIM IMMUNITY IS PURELY CONCEPTUAL AND CANNOT BE MEASURED BY ANY MEANS
THAT I KNOW ABOUT. 

I WOULD THEREFORE ELIMINATE THE ABOVE-QUOTED STATEMENT FROM THE
COURT'S OPINION. 

FRANCIS X. BEYTAGH, JR., ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL RUCKELSHAUS, MORTON HOLLANDER, AND WALTER H. FLEISCHER. 

JOSEPH M. SNEE, BY APPOINTMENT OF THE COURT, 393 U.S. 1061, ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :









JENKINS V. MCKEITHEN, 395 U.S. 411 


       JENKINS V. MCKEITHEN, GOVERNOR OF LOUISIANA, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF LOUISIANA. 

NO. 548.  ARGUED MARCH 25, 1969.-- DECIDED JUNE 9, 1969. 


APPELLANT, A LABOR UNION MEMBER, FILED THIS SUIT IN THE DISTRICT
COURT FOR DECLARATORY AND INJUNCTIVE RELIEF CHALLENGING AS VIOLATIVE OF
DUE PROCESS AND EQUAL PROTECTION THE LOUISIANA STATUTE THAT CREATES A
BODY CALLED THE LABOR-MANAGEMENT COMMISSION OF INQUIRY FOR THE PURPOSE
OF INVESTIGATING AND FINDING FACTS RELATING TO VIOLATIONS OF STATE OR
FEDERAL CRIMINAL LAWS IN THE LABOR-MANAGEMENT RELATIONS FIELD.  THE
COMMISSION, APPOINTED BY THE GOVERNOR, IS TO HOLD PUBLIC HEARINGS
CONCERNING SUCH ALLEGED VIOLATIONS, AND ITS POWERS INCLUDE MAKING
RULES, EMPLOYING INVESTIGATORS, COMPELLING THE ATTENDANCE OF WITNESSES
AND REQUIRING THE PRODUCTION OF RECORDS.  THE COMMISSION IS REQUIRED TO
MAKE PUBLIC FINDINGS WHETHER THERE IS PROBABLE CAUSE TO BELIEVE THAT
CRIMINAL VIOLATIONS HAVE OCCURRED, TO REPORT SUCH FINDINGS OF PROBABLE
CAUSE TO LAW ENFORCEMENT AUTHORITIES, AND TO REQUEST THE GOVERNOR TO
REFER MATTERS TO THE STATE ATTORNEY GENERAL FOR PROSECUTIVE ACTION. 
THERE IS NO PROVISION FOR SUBMISSION OF FINDINGS FOR THE PURPOSE OF
LEGISLATIVE ACTION.  WITNESSES HAVE THE RIGHT TO COUNSEL "SUBJECT TO .
. . REASONABLE LIMITATIONS" IMPOSED BY THE COMMISSION, BUT THE RIGHT TO
CROSS-EXAMINE OTHER WITNESSES IS LIMITED, NEITHER A WITNESS NOR A
PRIVATE PARTY HAVING THE RIGHT TO CALL ANYONE TO TESTIFY BEFORE THE
COMMISSION AT PUBLIC HEARINGS.  APPELLANT CHARGED THAT THE COMMISSIONER
IS AN "EXECUTIVE TRIAL AGENCY" "AIMED AT CONDUCTING PUBLIC TRIALS
CONCERNING CRIMINAL LAW VIOLATIONS"; THAT ITS FUNCTION IS PUBLICLY TO
CONDEMN; THAT THE APPELLEES (THE GOVERNOR AND SIX COMMISSIONERS) HAVE
SINGLED OUT APPELLANT AND MEMBERS OF HIS UNION "AS A SPECIAL CLASS OF
PERSONS FOR REPRESSIVE AND WILLFULLY PUNITIVE ACTION," PROCURING FALSE
STATEMENTS OF CRIMINAL ACTIVITIES TO INITIATE BASELESS CRIMINAL
PROCEEDINGS AGAINST APPELLANT, COERCING PUBLIC OFFICIALS INTO
PROSECUTING FALSE CRIMINAL CHARGES AGAINST HIM, AND INTIMIDATING JUDGES
CONSIDERING LEGAL CONTROVERSIES INVOLVING HIM; AND THAT THE COMMISSION
AND THOSE ACTING IN CONCERT WITH IT WILL CONTINUE TO TAKE SUCH ACTIONS
AGAINST APPELLANT.  APPELLEES MOVED TO DISMISS, ALLEGING THAT APPELLANT
LACKED STANDING TO MAKE HIS CONSTITUTIONAL CHALLENGE, SINCE HE DID NOT
CLAIM THAT HE WAS CALLED OR EXPECTED TO BE CALLED TO APPEAR BEFORE THE
COMMISSION OR WOULD BE "INJURED" BY THE OPERATION OF THE STATUTE, AND
THAT THE COMPLAINT FAILED TO STATE A CAUSE OF ACTION.  A THREE-JUDGE
DISTRICT COURT DISMISSED THE COMPLAINT, HOLDING THAT HANNAH V. LARCHE,
363 U.S. 420, FORECLOSED RELIEF ON THE CONSTITUTIONAL ISSUE, AND THAT
THE OTHER ALLEGATIONS OF THE COMPLAINT RAISED MERELY POTENTIAL DEFENSES
TO ASSERTEDLY PENDING CRIMINAL CHARGES.  HELD:  THE JUDGMENT IS
REVERSED AND REMANDED.  PP. 413-433. 

286 F.SUPP.  537, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN, CONCLUDED THAT: 

1.  APPELLANT HAS STANDING TO CHALLENGE THE STATUTE'S
CONSTITUTIONALITY.  PP. 421-425. 

(A) THE ALLEGATIONS OF THE COMPLAINT INDICATE THAT THE COMMISSION
AND THOSE ACTING IN CONCERT WITH IT HAVE CARRIED OUT A SERIES OF ACTS
DESIGNED TO INJURE APPELLANT IN SEVERAL WAYS, AND IT IS THUS CLEAR THAT
APPELLANT HAS SUFFICIENT ADVERSARY INTEREST TO INSURE PROPER
PRESENTATION OF ISSUES FACING THE COURT.  PP. 423-424. 

(B) APPELLANT HAS SUFFICIENTLY ALLEGED A NEXUS BETWEEN THE OFFICIAL
ACTION CHALLENGED AND HIS LEGALLY PROTECTED INTEREST, SINCE HE HAS
CLAIMED THAT THE VERY PURPOSE OF THE COMMISSION IS TO FIND HIM AND
PERSONS LIKE HIM GUILTY OF VIOLATING CRIMINAL LAWS WITHOUT TRIAL OR
PROCEDURAL SAFEGUARDS, AND TO PUBLICIZE THOSE FINDINGS, AND THUS THE
COMMISSION'S ALLEGED ACTIONS WILL SUBSTANTIALLY AFFECT HIM.  P. 424. 

(C) IN THE CIRCUMSTANCES OF THIS CASE, WHERE APPELLANT CLAIMS A
CONCERTED ATTEMPT TO BRAND HIM A CRIMINAL WITHOUT TRIAL AND HAS CLAIMED
THAT HE HAS VAINLY TRIED TO SECURE PROSECUTION OF CHARGES AGAINST HIM,
HIS OPPORTUNITY TO DEFEND CRIMINAL PROSECUTION IS NOT SUFFICIENT TO
DEPRIVE HIM OF STANDING TO CHALLENGE THE STATUTE.  PP. 424-425. 

2.  APPELLANT HAS ALLEGED A CAUSE OF ACTION WHICH MAY MAKE
DECLARATORY AND INJUNCTIVE RELIEF APPROPRIATE AND IS ENTITLED TO GO TO
TRIAL ON HIS ALLEGATIONS CONCERNING THE COMMISSION AND THAT ITS
PROCEDURES VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
PP. 425-431. 

(AHANNAH V. LARCHE, SUPRA, IS REAFFIRMED.  THE FUNCTIONS OF THE
CIVIL RIGHTS COMMISSION, WHOSE PROCEDURES WERE UPHELD IN THAT CASE,
WERE PRIMARILY INVESTIGATORY AND FOR LEGISLATIVE AND EXECUTIVE
PURPOSES, WHEREAS THE COMMISSION IN THIS CASE IS LIMITED TO CRIMINAL
LAW VIOLATIONS, AND ALLEGEDLY EXERCISES A ROLE VERY MUCH AKIN TO MAKING
AN OFFICIAL ADJUDICATION OF CRIMINAL CULPABILITY, PERFORMING FUNCTIONS
THAT ARE PRIMARILY ACCUSATORY AND HAVE NO LEGISLATIVE PURPOSE.  PP. 425
428. 

(B) DUE PROCESS REQUIRES THAT THE COMMISSION HERE, WHICH ALLEGEDLY
MAKES ACTUAL FINDINGS OF GUILT, AFFORD A PERSON BEING INVESTIGATED THE
RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINST HIM.  PP. 428
429. 

(C) THE COMMISSION'S ALLEGED PROCEDURES DRASTICALLY LIMITING THE
RIGHT OF A PERSON BEING INVESTIGATED TO PRESENT EVIDENCE ON HIS OWN
BEHALF DO NOT COMPORT WITH DUE PROCESS.  P. 429. 

(D) THE EXTENT TO WHICH THE COMMISSION'S PROCEDURES IN THESE AND
OTHER RESPECTS ALLEGED BY APPELLANT MAY VIOLATE THE DUE PROCESS CLAUSE
SHOULD BE DECIDED IN THE FIRST INSTANCE BY THE DISTRICT COURT IN LIGHT
OF THE EVIDENCE ADDUCED AT TRIAL.  PP. 429-430. 

3.  WHETHER APPELLANT'S ALLEGATIONS THAT FALSE CRIMINAL CHARGES WERE
FILED AGAINST HIM INVOLVE ACTIONS TAKEN UNDER THE STATUTE AND SHOULD
THUS BE TAKEN INTO ACCOUNT BY THE DISTRICT COURT IN DETERMINING THE
STATUTE'S CONSTITUTIONALITY OR ARE MERELY POTENTIAL DEFENSES, AS THE
DISTRICT COURT HELD, TO ASSERTEDLY PENDING CRIMINAL CHARGES SHOULD BE
LEFT OPEN FOR RECONSIDERATION ON REMAND.  PP. 431-432. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT FOR THE REASONS STATED IN
HIS DISSENT IN HANNAH V. LARCHE, SUPRA, AT 493-508.  P. 432. 

MR. JUSTICE BLACK ADHERED TO MR. JUSTICE DOUGLAS' DISSENT IN HANNAH
V. LARCHE, SUPRA, AND WHILE CONCURRING IN MUCH OF THE PREVAILING
OPINION IN THIS CASE, CONCLUDED THAT THE STATUTE INVOLVED HERE, LIKE
THE STATUTE INVOLVED IN HANNAH, CONSTITUTES A SCHEME FOR A NONJUDICIAL
TRIBUNAL TO CONVICT PEOPLE WITHOUT ANY OF THE SAFEGUARDS OF THE BILL OF
RIGHTS AND DENIES DUE PROCESS OF LAW.  PP. 432-433. 

MR. JUSTICE MARSHALL ANNOUNCED THE JUDGMENT OF THE COURT AND
DELIVERED AN OPINION IN WHICH MR. CHIEF JUSTICE WARREN AND MR. JUSTICE
BRENNAN JOIN. 

THIS CASE INVOLVES THE CONSTITUTIONALITY OF A 1967 LOUISIANA
STATUTE, KNOWN AS ACT NO. 2, WHICH CREATES A BODY CALLED THE LABOR
MANAGEMENT COMMISSION OF INQUIRY.  LA. REV. STAT. ANN. SECS. 23:880.1
23:880.18 (SUPP. 1969).  THE STATED PURPOSE OF THIS COMMISSION IS "THE
INVESTIGATION AND FINDINGS OF FACTS RELATING TO VIOLATIONS OR POSSIBLE
VIOLATIONS OF CRIMINAL LAWS OF THE STATE OF LOUISIANA OR OF THE UNITED
STATES ARISING OUT OF OR IN CONNECTION WITH MATTERS IN THE FIELD OF
LABOR-MANAGEMENT RELATIONS . . . ."  ACT NO. 2, PREAMBLE, (1967 EXTRA. 
SESS.)  LA. ACTS 3.  APPELLANT, A MEMBER OF A LABOR UNION, FILED THIS
SUIT IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
CHALLENGING THE CONSTITUTIONALITY OF ACT NO. 2 AND OF CERTAIN ACTIONS
TAKEN BY STATE OFFICIALS IN THE ADMINISTRATION OF THE ACT AND
OTHERWISE.  HE SOUGHT BOTH DECLARATORY AND INJUNCTIVE RELIEF.  A THREE
JUDGE COURT WAS CONVENED AND THAT COURT ULTIMATELY GRANTED APPELLEES'
MOTION TO DISMISS THE COMPLAINT.  JENKINS V. MCKEITHEN, 286 S.SUPP. 
537 (D.C.E.D. LA. 1968).  WE NOTED PROBABLE JURISDICTION OF AN APPEAL
BROUGHT UNDER 28 U.S.C. 1253.  /1/  WE REVERSE. 

SINCE THE CASE WAS DECIDED ON A MOTION TO DISMISS, A RATHER DETAILED
EXAMINATION OF THE STRUCTURE OF THE ACT AND OF THE ALLEGATIONS OF THE
COMPLAINT IS NECESSARY. 

        I. 

THE IMPETUS FOR THE FORMATION OF THE COMMISSION WAS STATED IN THE
PREAMBLE OF THE ACT.  (1967 EXTRA.  SESS.)  LA. ACTS 2.  IT CITED
"UNPRECEDENTED CONDITIONS" IN THE LABOR RELATIONS OF THE CONSTRUCTION
INDUSTRY, AND IT PARTICULARLY NOTED CERTAIN "ALLEGATIONS AND
ACCUSATIONS OF VIOLATIONS OF THE STATE AND FEDERAL CRIMINAL LAWS WHICH
SHOULD BE THOROUGHLY INVESTIGATED IN THE PUBLIC INTEREST . . . ."  ID.,
AT 3.  THE ADDITIONAL INVESTIGATIVE FACILITIES OF THE COMMISSION WERE
THOUGHT NECESSARY TO "SUPPLEMENT AND ASSIST THE EFFORTS AND ACTIVITIES
OF THE SEVERAL DISTRICT ATTORNEYS, GRAND JURIES AND OTHER LAW
ENFORCEMENT OFFICIALS AND AGENCIES . . . ."  IBID. 

THE COMMISSION IS COMPOSED OF NINE MEMBERS APPOINTED BY THE
GOVERNOR.  LA. REV. STAT. ANN. SEC. 23:880.1 (SUPP. 1969).  IT IS
EMPOWERED TO ACT ONLY UPON REFERRAL BY THE GOVERNOR WHEN, IN HIS
OPINION, THERE IS SUBSTANTIAL INDICATION THAT THERE ARE OR MAY BE
"WIDESPREAD OR CONTINUING VIOLATIONS OF EXISTING CRIMINAL LAWS"
AFFECTING LABOR-MANAGEMENT RELATIONS.  LA. REV. STAT. ANN. SEC.
23:880.5 (SUPP. 1969).  UPON REFERRAL BY THE GOVERNOR, THE COMMISSION
IS TO PROCEED BY PUBLIC HEARING TO ASCERTAIN THE FACTS PERTAINING TO
THE ALLEGED VIOLATIONS.  LA. REV. STAT. ANN. SEC. 23:800.6 (SUPP.
1969).  IN ORDER TO CARRY OUT THIS FUNCTION, THE COMMISSION HAS THE
POWER TO MAKE APPROPRIATE RULES AND REGULATIONS, TO EMPLOY ATTORNEYS,
INVESTIGATORS, AND OTHER STAFF MEMBERS, TO COMPEL THE ATTENDANCE OF
WITNESSES, TO EXAMINE THEM UNDER OATH, AND TO REQUIRE THE PRODUCTION OF
BOOKS, RECORDS, AND OTHER EVIDENCE.  LA. REV. STAT. ANN. SEC. 23:880.8
(SUPP. 1969).  IT CAN ENFORCE ITS ORDERS BY PETITION TO THE STATE
COURTS FOR CONTEMPT PROCEEDINGS.  LA. REV. STAT. ANN. SEC. 23:880.9
(SUPP. 1969). 

THE SCOPE OF THE COMMISSION'S INVESTIGATIVE AUTHORITY IS EXPLICITLY
LIMITED BY THE ACT TO VIOLATIONS OF CRIMINAL LAWS.  "THE COMMISSION
SHALL HAVE NO POWER, AUTHORITY OR JURISDICTION TO INVESTIGATE, HOLD
HEARINGS OR SEEK TO ASCERTAIN THE FACTS OR MAKE ANY REPORTS OR
RECOMMENDATIONS ON ANY OF THE STRICTLY CIVIL ASPECTS OF ANY LABOR
PROBLEM . . . ."  LA. REV. STAT. ANN. SEC. 23:880.6 B (SUPP. 1969). 
/2/  FURTHER, THE COMMISSION HAS NO POWER TO PARTICIPATE IN ANY MANNER
IN ANY CIVIL PROCEEDING, EXCEPT, OF COURSE, CONTEMPT PROCEEDINGS. 
IBID.  THE LIMITATION OF THE COMMISSION TO CRIMINAL MATTERS IS FURTHER
REINFORCED BY THE PROVISION OF THE ACT ALLOWING THE COMMISSION, AT THE
REQUEST OF THE GOVERNOR, TO ASSIGN ITS INVESTIGATORY FORCES TO THE
STATE POLICE TO ASSIST THE LATTER IN THEIR INVESTIGATORY ACTIVITIES. 
LA. REV. STAT. ANN. SEC. 23:880.6 C (SUPP. 1969). 

THE COMMISSION IS REQUIRED TO DETERMINE, IN PUBLIC FINDINGS, WHETHER
THERE IS PROBABLE CAUSE TO BELIEVE VIOLATIONS OF THE CRIMINAL LAWS HAVE
OCCURRED.  LA. REV. STAT. ANN. SEC. 23:880.7 A (SUPP. 1969).  ITS POWER
IS LIMITED TO MAKING THESE FINDINGS AND RECOMMENDATIONS: 

     "THE COMMISSION SHALL HAVE NO AUTHORITY TO AND IT SHALL MAKE
NO

BINDING ADJUDICATION WITH RESPECT TO SUCH VIOLATION OR

VIOLATIONS; HOWEVER, IT MAY, IN ITS DISCRETION, INCLUDE IN ITS

  FINDINGS THE CONCLUSIONS OF THE COMMISSION AS TO SPECIFIC

  INDIVIDUALS . . . AND IT MAY MAKE SUCH RECOMMENDATIONS FOR ACTION

  TO THE GOVERNOR AS IT DEEMS APPROPRIATE."  IBID. 

THE FINDINGS ARE TO BE A MATTER OF PUBLIC RECORD, LA. REV. STAT.
ANN. SEC. 23:880.15 B (SUPP. 1969), ALTHOUGH THEY MAY NOT BE USED AS
PRIMA FACIE OR PRESUMPTIVE EVIDENCE OF GUILT OR INNOCENCE IN ANY COURT
OF LAW, LA. REV. STAT. ANN. SEC. 23:880.7 A (SUPP. 1969).  THE
COMMISSION IS REQUIRED TO REPORT ITS FINDINGS TO THE PROPER STATE OR
FEDERAL AUTHORITIES IF IT FINDS THERE IS PROBABLE CAUSE TO BELIEVE THAT
VIOLATIONS OF THE CRIMINAL LAWS HAVE OCCURRED, AND IT MAY FILE
APPROPRIATE CHARGES.  LA. REV. STAT. ANN. SEC. 23:880.7 B (SUPP.
1969).  FINALLY, THE COMMISSION MAY REQUEST THE GOVERNOR TO REFER
MATTERS TO THE STATE ATTORNEY GENERAL ASKING THE LATTER TO EXERCISE HIS
AUTHORITY TO CAUSE CRIMINAL PROSECUTIONS TO BE INSTITUTED.  LA. REV.
STAT. ANN. SEC. 23:880.7 D (SUPP. 1969).  NOTHING IN THE ACT MAKES ANY
PROVISION FOR PREPARATION OF FINDINGS OR REPORTS FOR SUBMISSION TO THE
GOVERNOR OR THE LEGISLATURE FOR THE EXPLICIT PURPOSE OF LEGISLATIVE
ACTION.  INDEED, THE PREAMBLE OF THE ACT AND THE ACT ITSELF MAKE IT
CLEAR THAT THE PURPOSE OF THE COMMISSION IS TO SUPPLEMENT THE ACTIVITES
OF THE STATE'S LAW ENFORCEMENT AGENCIES IN ONE NARROWLY DEFINED AREA. 

AS INDICATED ABOVE, THE COMMISSION HAS THE POWER TO COMPEL THE
ATTENDANCE OF WITNESSES.  A WITNESS IS GIVEN NOTICE OF THE GENERAL
SUBJECT MATTER OF THE INVESTIGATION BEFORE BEING ASKED TO APPEAR AND
TESTIFY.  LA. REV. STAT. ANN. SEC. 23:880.10 A (SUPP. 1969).  A WITNESS
HAS THE RIGHT TO THE PRESENCE AND ADVICE OF COUNSEL, "SUBJECT TO SUCH
REASONABLE LIMITATIONS AS THE COMMISSION MAY IMPOSE IN ORDER TO PREVENT
OBSTRUCTION OF OR INTERFERENCE WITH THE ORDERLY CONDUCT OF THE
HEARING."  LA. REV. STAT. ANN. SEC. 23:880.10 B (SUPP. 1969).  COUNSEL
MAY QUESTION HIS CLIENT AS TO ANY RELEVANT MATTERS, IBID., BUT THE
RIGHT OF A WITNESS OR HIS COUNSEL TO EXAMINE OTHER WITNESSES IS
LIMITED: 

"IN NO EVENT SHALL COUNSEL FOR ANY WITNESS HAVE ANY RIGHT TO EXAMINE
OR CROSS-EXAMINE ANY OTHER WITNESS BUT HE MAY SUBMIT TO THE COMMISSION
PROPOSED QUESTIONS TO BE ASKED OF ANY OTHER WITNESS APPEARING BEFORE
THE COMMISSION, AND THE COMMISSION SHALL ASK THE WITNESS SUCH OF THE
QUESTIONS AS IT DEEMS TO BE APPROPRIATE TO ITS INQUIRY."  IBID. WITH
ONE LIMITED EXCEPTION TO BE DISCUSSED BELOW, NEITHER A WITNESS NOR ANY
OTHER PRIVATE PARTY HAS THE RIGHT TO CALL ANYONE TO TESTIFY BEFORE THE
COMMISSION. 

ALTHOUGH THE COMMISSION MUST BASE ITS FINDINGS AND REPORTS ONLY ON
EVIDENCE AND TESTIMONY GIVEN AT PUBLIC HEARINGS, THE ACT DOES PROVIDE
FOR EXECUTIVE SESSION WHEN IT APPEARS THAT THE TESTIMONY TO BE GIVEN
"MAY TEND TO DEGRADE, DEFAME OR INCRIMINATE ANY PERSON."  LA. REV.
STAT. ANN. SEC. 23:880.12 A (SUPP. 1969).  IN EXECUTIVE SESSION THE
COMMISSION MUST ALLOW THE PERSON WHO MIGHT BE DEGRADED, DEFAMED, OR
INCRIMINATED AN OPPORTUNITY TO APPEAR AND BE HEARD, AND TO CALL A
REASONABLE NUMBER OF WITNESSES ON HIS BEHALF.  IBID.  HOWEVER, THE
COMMISSION MAY DECIDE THAT THE EVIDENCE OR TESTIMONY SHALL BE HEARD IN
A PUBLIC HEARING, REGARDLESS OF ITS EFFECT ON ANY PARTICULAR PERSON. 
IBID.  IN THAT CASE, THE PERSON AFFECTED HAS THE RIGHT TO APPEAR AS A
"VOLUNTARY WITNESS" AND MAY SUBMIT "PERTINENT" STATEMENTS OF OTHERS. 
IBID.  HE MAY SUBMIT A LIST OF ADDITIONAL WITNESSES, BUT SUBPOENAS WILL
BE ISSUED ONLY IN THE DISCRETION OF THE COMMISSION.  IBID.; SEE ALSO
LA. REV. STAT. ANN. SEC. 23:880.12 C (SUPP. 1969). 

 II. 

APPELLANT'S COMPLAINT NAMED AS DEFENDANTS THE GOVERNOR OF LOUISIANA
AND SIX MEMBERS OF THE COMMISSION.  THE COMPLAINT PRESENTED, INTER
ALIA, THE QUESTION OF WHETHER THE PROVISIONS OF ACT NO. 2 VIOLATED THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT. 
APPELLANT ALLEGED THAT THE COMMISSION WAS AN EXECUTIVE TRIAL AGENCY
"AIMED AT CONDUCTING PUBLIC TRIALS CONCERNING CRIMINAL LAW VIOLATIONS,"
AND THAT ITS FUNCTION WAS PUBLICLY TO CONDEMN.  APPELLANT ASSERTED
THAT THE DEFENDANTS 

"IN CONNECTION WITH THE ADMINISTRATION OF THE PROVISIONS OF SAID
ACT, HAVE SINGLED OUT COMPLAINANT AND MEMBERS OF TEAMSTERS LOCAL NO. 5
AS A SPECIAL CLASS OF PERSONS FOR REPRESSIVE AND WILLFULLY PUNITIVE
ACTION . . . IN FURTHERANCE OF WHICH A DELIBERATE EFFORT HAS BEEN MADE
AND CONTINUES TO BE MADE BY SAID OFFICIALS . . . TO DESTROY THE CURRENT
POWER STRUCTURE OF THE LABOR UNION AFORESAID . . . ." 

MORE SPECIFICALLY, THE COMPLAINT ALLEGED THAT APPELLEES AND THEIR
AGENTS, ACTING UNDER COLOR OF LAW AND IN CONSIPRACY, PROCURED FALSE
STATEMENTS OF CRIMINAL ACTIVITIES AND USED SUCH STATEMENTS TO INITIATE
BASELESS CRIMINAL PROCEEDINGS AGAINST APPELLANT, THAT THEY INTIMIDATED
AND COERCED PUBLIC OFFICIALS INTO FILING AND PROSECUTING FALSE CRIMINAL
CHARGES AGAINST APPELLANT, AND THAT THEY KNOWINGLY, WILLFULLY, AND
PURPOSEFULLY INTIMIDATED STATE COURT JUDGES HAVING UNDER CONSIDERATION
LEGAL CONTROVERSIES INVOLVING APPELLANT.  THESE ACTS OF APPELLEES
ALLEGEDLY DEPRIVED APPELLANT AND ALL OTHERS SIMILARLY SITUATED OF
"RIGHTS, PRIVILEGES AND IMMUNITIES SECURED TO THEM BY THE CONSTITUTION
AND LAWS OF THE UNITED STATES."  FINALLY, APPELLANT ALLEGED THAT THE
APPELLEES INTENDED TO CONTINUE TO DEPRIVE HIM AND OTHERS OF THEIR
RIGHTS AND THAT THERE WAS NO "PLAIN, ADEQUATE OR EFFICIENT REMEDY AT
LAW." 

APPELLANT PRAYED THAT A THREE-JUDGE DISTRICT COURT BE CONVENED, THAT
A TEMPORARY RESTRAINING ORDER ISSUE, THAT ACT NO. 2 BE DECLARED
UNCONSTITUTIONAL, THAT ALL CIVIL AND CRIMINAL ACTIONS AGAINST APPELLANT
BE PERMANENTLY RESTRAINED, AND THAT OTHER UNSPECIFIED RELIEF BE
GRANTED. 

TEMPORARY RELIEF WAS DENIED BY THE DISTRICT COURT AND A THREE-JUDGE
COURT WAS IMPANELLED TO HEAR THE CASE.  APPELLEES ANSWERED AND MOVED TO
DISMISS.  THEY ALLEGED THAT APPELLANT LACKED STANDING TO QUESTION THE
CONSTITUTIONALITY OF ACT NO. 2 AND THAT THE COMPLAINT FAILED TO STATE A
CAUSE OF ACTION.  THEREAFTER, APPELLANT FILED A "SUPPLEMENTAL AND
AMENDING PETITION" IN WHICH HE ALLEGED, IN SOME DETAIL, THAT APPELLEES
HAD CONTINUED THE COURSE OF ACTION DESCRIBED IN THE ORIGINAL
COMPLAINT.  AFTER A HEARING, THE COURT DISMISSED THE COMPLAINT. 
JENKINS V. MCKEITHEN, SUPRA. 

THE COURT, RELYING LARGELY ON THE OPINION OF THE LOUISIANA SUPREME
COURT IN MARTONE V. MORGAN, 251 LA. 993, 207 SO.2D 770, APPEAL
DISMISSED, 393 U.S. 12 (1968) (PETITION FOR REHEARING PENDING), HELD
THAT THIS COURT'S DECISION IN HANNAH V. LARCHE, 363 U.S. 420 (1960),
WAS DISPOSITIVE OF THE ISSUE OF THE CONSTITUTIONALITY OF THE ACT.  THE
COURT FURTHER RULED THAT APPELLANT HAD NOT STATED ANY OTHER CLAIM FOR
RELIEF UNDER SECS. 1981, 1983, AND 1988 OF TITLE 42, UNITED STATES
CODE.  RATHER, THE COURT HELD THAT THE OTHER MATTERS SOUGHT TO BE
RAISED IN THE COMPLAINT WERE MERELY POTENTIAL DEFENSES TO THE PENDING
CRIMINAL CHARGES AND THAT APPELLANT HAD NOT ALLEGED ANY BASIS FOR
RESTRAINING PROSECUTION OF THOSE CHARGES.  FINALLY, THE COURT RULED
THAT APPELLANT'S SUIT WAS NOT A PROPER CLASS ACTION UNDER RULE 23 OF
THE FEDERAL RULES OF CIVIL PROCEDURE.  /3/  THE COURT DID NOT
EXPLICITLY RULE ON THE ISSUE OF WHETHER APPELLANT LACKED STANDING TO
CHALLENGE THE ACT. 

APPELLANT PRESENTS TWO QUESTIONS FOR REVIEW IN THIS COURT:  WHETHER
ACT NO. 2 IS CONSTITUTIONAL AND WHETHER THE COMPLAINT OTHERWISE STATES
A CAUSE OF ACTION UNDER 42 U.S.C. 1981, 1983, AND 1988. 

        III. 

WE ARE MET AT THE OUTSET WITH APPELLEES' ASSERTION THAT APPELLANT
LACKS STANDING TO ATTACK THE CONSTITUTIONALITY OF ACT NO. 2.  THIS
ARGUMENT IS BASED IN PART UPON CERTAIN ALLEGATIONS IN THE COMPLAINT
THAT ACT NO. 2 IS UNCONSTITUTIONAL BECAUSE IT DENIES TO "A PERSON
COMPELLED TO APPEAR BEFORE . . . (THE) COMMISSION" THE RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL, THE RIGHT OF CONFRONTATION, AND THE
RIGHT TO COMPULSORY PROCESS FOR THE ATTENDANCE OF WITNESSES.  SINCE
APPELLANT DID NOT ALLEGE IN HIS COMPLAINT THAT HE WAS CALLED TO APPEAR
BEFORE THE COMMISSION OR THAT HE EXPECTED TO BE CALLED, APPELLEES
ASSERT THAT HE LACKS STANDING TO ASSERT THE DENIAL OF RIGHTS TO THOSE
WHO DO APPEAR.  SEE, E.G., TILESTON V. ULLMAN, 318 U.S. 44 (1943). 
FURTHER, APPELLEES ARGUE THAT APPELLANT LACKS STANDING BECAUSE HE
CANNOT DEMONSTRATE THAT HE HAS BEEN, OR WILL BE, "INJURED" BY THE
OPERATION OF THE CHALLENGED STATUTE.  WE CANNOT AGREE. 

THE PRESENT CASE WAS DECIDED ON APPELLEES' MOTION TO DISMISS, IN
WHICH APPELLEES CONTESTED APPELLANT'S STANDING TO CHALLENGE THE
CONSTITUTIONALITY OF THE ACT.  AS NOTED ABOVE, THE COURT BELOW MADE NO
EXPLICIT REFERENCE TO THE ISSUE OF STANDING.  BUT SINCE THE QUESTION OF
STANDING GOES TO THIS COURT'S JURISDICTION, SEE FLAST V. COHEN, 392
U.S. 83, 94-101 (1968), WE MUST DECIDE THE ISSUE EVEN THOUGH THE COURT
BELOW PASSED OVER IT WITHOUT COMMENT.  CF. TILESTON V. ULLMAN, SUPRA. 
FOR THE PURPOSES OF A MOTION TO DISMISS, THE MATERIAL ALLEGATIONS OF
THE COMPLAINT ARE TAKEN AS ADMITTED.  SEE, E.G., WALKER PROCESS
EQUIPMENT, INC. V. FOOD MACHINERY & CHEMICAL CORP., 382 U.S. 172, 174
175 (1965).  AND, THE COMPLAINT IS TO BE LIBERALLY CONSTRUED IN FAVOR
OF PLAINTIFF.  SEE FED. RULE CIV. PROC. 8(F); CONLEY V. GIBSON, 355
U.S. 41 (1957).  THE COMPLAINT SHOULD NOT BE DISMISSED UNLESS IT
APPEARS THAT APPELLANT COULD "PROVE NO SET OF FACTS IN SUPPORT OF HIS
CLAIM WHICH WOULD ENTITLE HIM TO RELIEF."  CONLEY V. GIBSON, SUPRA, AT
45-46.  WITH THESE RULES IN MIND, WE TURN TO AN EXAMINATION OF THE
ALLEGATIONS OF APPELLANT'S COMPLAINT. 

IT IS TRUE, AS APPELLEES ASSERT, THAT APPELLANT ALLEGES DEPRIVATIONS
OF RIGHTS OF THOSE WHO ARE OR WILL BE CALLED TO TESTIFY BEFORE THE
COMMISSION AND THAT HE FAILS TO ALLEGE THAT HE WAS OR WILL BE CALLED TO
TESTIFY.  IF THIS WERE THE EXTENT OF APPELLANT'S ALLEGATIONS, WE WOULD
AGREE THAT APPELLANT LACKS STANDING TO CHALLENGE THE ACT.  HOWEVER,
APPELLANT'S ALLEGATIONS ARE NOT LIMITED TO THOSE MENTIONED BY
APPELLEES.  APPELLANT ALLEGED THAT THE COMMISSION WAS AN "EXECUTIVE
TRIAL AGENCY" WHOSE FUNCTION WAS TO CONDUCT PUBLIC TRIALS DESIGNED TO
FIND APPELLANT AND OTHERS GUILTY OF VIOLATIONS OF CRIMINAL LAWS,
ALLEGEDLY FOR THE PURPOSE OF INJURING HIM AND DESTROYING THE LABOR
UNION OF WHICH HE WAS A MEMBER.  MORE SPECIFICALLY, APPELLANT ALLEGED
THAT 

"SAID COMMISSION OF INQUIRY EXERCISES (A) AN ACCUSATORY FUNCTION,
(B) ITS DUTY TO FIND THAT NAMED INDIVIDUALS ARE RESPONSIBLE FOR
CRIMINAL LAW VIOLATIONS, (C) IT MUST ADVERTISE SUCH FINDINGS, AND (D)
ITS FINDINGS SERVE AS PART OF THE PROCESS OF CRIMINAL PROSECUTION . . .
."  FINALLY, THE COMPLAINT ALLEGED THAT THE APPELLEES, ACTING IN
CONCERT WITH OTHERS AND IN CONNECTION WITH THE ADMINISTRATION OF THE
ACT, HAVE ACTUALLY ENGAGED IN A COURSE OF CONDUCT DESIGNED PUBLICLY TO
BRAND APPELLANT AND OTHERS AS CRIMINALS, INCLUDING, AS NOTED ABOVE, THE
FILING OF ALLEGEDLY BASELESS CRIMINAL CHARGES AGAINST APPELLANT. 

THUS, ALTHOUGH THE COMPLAINT IS INARTFULLY DRAWN, IT DOES ALLEGE
THAT THE COMMISSION AND THOSE ACTING IN CONCERT WITH IT HAVE TAKEN AND
WILL TAKE IN THE FUTURE CERTAIN ACTIONS WITH RESPECT TO THE APPELLANT. 
THE ISSUE IS THUS WHETHER THOSE ALLEGATIONS ARE SUFFICIENT TO GIVE
APPELLANT STANDING TO CHALLENGE THE CONSTITUTIONALITY OF THE ACT
CREATING THE COMMISSION AND THE ACTIONS TAKEN BY THE COMMISSION UNDER
AUTHORITY OF THAT ACT.  WE THINK THAT THEY ARE. 

THE CONCEPT OF STANDING TO SUE, AS WE NOTED IN FLAST V. COHEN,
SUPRA, "IS SURROUNDED BY THE SAME COMPLEXITIES AND VAGARIES THAT INHERE
IN (THE CONCEPT OF) JUSTICIABILITY" IN GENERAL.  392 U.S.,AT 98. 
NEVERTHELESS, THE OUTLINES OF THE CONCEPT CAN BE STATED WITH SOME
CERTAINITY.  THE INDISPENSABLE REQUIREMENT IS, OF COURSE, THAT THE
PARTY SEEKING RELIEF ALLEGE "SUCH A PERSONAL STAKE IN THE OUTCOME OF
THE CONTROVERSY AS TO ASSURE THAT CONCRETE ADVERSENESS WHICH SHARPENS
THE PRESENTATION OF ISSUES UPON WHICH THE COURT SO LARGELY DEPENDS FOR
ILLUMINATION OF DIFFICULT CONSTITUTIONAL QUESTIONS . . . ."  BAKER V.
CARR, 369 U.S. 186, 204 (1962); SEE FLAST V. COHEN, SUPRA; JOINT ANTI
FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 151 (1951)
(CONCURRING OPINION).  IN THIS SENSE, THE CONCEPT OF STANDING FOCUSES
ON THE PARTY SEEKING RELIEF, RATHER THAN ON THE PRECISE NATURE OF THE
RELIEF SOUGHT.  SEE FLAST V. COHEN, SUPRA, AT 99-100.  THE DECISIONS OF
THIS COURT HAVE ALSO MADE IT CLEAR THAT SOMETHING MORE THAN AN
"ADVERSARY INTEREST" IS NECESSARY TO CONFER STANDING.  THERE MUST IN
ADDITION BE SOME CONNECTION BETWEEN THE OFFICIAL ACTION CHALLENGED AND
SOME LEGALLY PROTECTED INTEREST OF THE PARTY CHALLENGING THAT ACTION. 
SEE FLAST V. COHEN, SUPRA, AT 101-106. 

IN THE PRESENT CASE, IT IS CLEAR THAT APPELLANT POSSESSES SUFFICIENT
ADVERSARY INTEREST TO INSURE PROPER PRESENTATION OF ISSUES FACING THE
COURT.  HIS ALLEGATIONS, IF TAKEN AS TRUE, INDICATE THAT THE COMMISSION
AND THOSE ACTING IN CONCERT WITH IT HAVE CARRIED OUT A SERIES OF PUBLIC
ACTS DESIGNED TO INJURE HIM IN VARIOUS WAYS.  APPELLANT'S INTEREST IN
HIS OWN REPUTATION AND IN HIS ECONOMIC WELL-BEING GUARANTEE THAT THE
PRESENT PROCEEDING WILL BE AN ADVERSARY ONE. 

WE ALSO THINK THAT APPELLANT HAS ALLEGED THAT THE ACT'S
ADMINISTRATION WAS THE DIRECT CAUSE OF SUFFICIENT INJURY TO HIS OWN
LEGALLY PROTECTED INTERESTS TO ACCORD HIM STANDING TO CHALLENGE THE
VALIDITY OF THE ACT.  WE ARE NOT PRESENTED WITH A CASE IN WHICH ANY
INJURY TO APPELLANT IS MERELY A COLLATERAL CONSEQUENCE OF THE ACTIONS
OF AN INVESTIGATIVE BODY.  SEE HANNAH V. LARCHE, SUPRA, AT 443; CF.
SINCLAIR V. UNITED STATES, 279 U.S. 263, 295 (1929); MCGRAIN V.
DAUGHERTY, 273 U.S. 135, 179-180 (1927).  RATHER, IT IS ALLEGED THAT
THE VERY PURPOSE OF THE COMMISSION IS TO FIND PERSONS GUILTY OF
VIOLATING CRIMINAL LAWS WITHOUT TRIAL OR PROCEDURAL SAFEGUARDS, AND TO
PUBLICIZE THOSE FINDINGS.  MOREOVER, WE THINK THAT THE PERSONAL AND
ECONOMIC CONSEQUENCES ALLEGED TO FLOW FROM SUCH ACTIONS ARE SUFFICIENT
TO MEET THE REQUIREMENT THAT APPELLANT PROVE A LEGALLY REDRESSABLE
INJURY.  THOSE CONSEQUENCES WOULD CERTAINLY BE ACTIONABLE IF CAUSED BY
A PRIVATE PARTY AND THUS SHOULD BE SUFFICIENT TO ACCORD APPELLANT
STANDING.  SEE GREENE V. MCELROY, 360 U.S. 474, 493, N. 22 (1959);
JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, SUPRA, AT 140-141
(OPINION OF BURTON, J.); ID., AT 151-160 (FRANKFURTER, J.,
CONCURRING).  IT IS NO ANSWER THAT THE COMMISSION HAS NOT ITSELF TRIED
TO IMPOSE ANY DIRECT SANCTIONS ON APPELLANT; IT IS ENOUGH THAT THE
COMMISSION'S ALLEGED ACTIONS WILL HAVE A SUBSTANTIAL IMPACT ON HIM. 
SEE, E.G., COLUMBIA BROADCASTING SYSTEM, INC. V. UNITED STATES, 316
U.S. 407 (1942); CF. NAACP V. ALABAMA, 357 U.S. 449, 460-463 (1958). 
FINALLY, IN THE CIRCUMSTANCES OF THE PRESENT CASE, WE DO NOT REGARD
APPELLANT'S OPPORTUNITY TO DEFEND ANY CRIMINAL PROSECUTIONS AS
SUFFICIENT TO DEPRIVE HIM OF STANDING TO CHALLENGE THE ACT.  CF. UNITED
STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299 (1927).  APPELLANT'S
ALLEGATIONS GO BEYOND THE NORMAL PUBLICITY ATTENDING CRIMINAL
PROSECUTION; HE ALLEGES A CONCERTED ATTEMPT PUBLICLY TO BRAND HIM A
CRIMINAL WITHOUT A TRIAL.  FURTHER, HE ALLEGES THAT HE HAS BEEN
UNSUCCESSFUL IN HIS ATTEMPTS TO SECURE PROSECUTION OF THE CHARGES
AGAINST HIM. 

WE HOLD THAT APPELLANT'S COMPLAINT CONTAINS SUFFICIENT ALLEGATIONS
OF DIRECT AND SUBSTANTIAL INJURY TO HIS OWN LEGALLY PROTECTED INTERESTS
TO ACCORD HIM STANDING TO CHALLENGE THE CONSTITUTIONALITY OF ACT NO.
2. 

        IV. 

WE THUS REACH THE MERITS OF APPELLANT'S CONTENTION THAT ACT NO. 2 IS
UNCONSTITUTIONAL.  APPELLANT'S COMPLAINT IS LONG AND INARTFULLY DRAWN;
IT CONTAINS MANY ALLEGATIONS OF WRONGDOING ON THE PART OF THE
COMMISSION AND OTHER STATE OFFICIALS.  BUT THE ONLY ISSUE PRESENTED BY
THIS ASPECT OF THE CASE IS WHETHER THE ACT CREATING THE COMMISSION IS
CONSTITUTIONAL, EITHER ON ITS FACE OR AS APPLIED.  MANY OF APPELLANT'S
ALLEGATIONS ARE RELEVANT TO THIS LATTER CONTENTION, BUT MANY INVOLVE
ISSUES THAT THE COURT BELOW RULED WERE PROPERLY MATTERS TO BE RAISED IN
DEFENSE OF ANY CRIMINAL PROSECUTIONS WHICH MIGHT TAKE PLACE.  WE WILL
DEAL WITH THOSE ALLEGATIONS IN THE FINAL SECTION OF THIS OPINION. 

APPELLEES, LIKE THE COURT BELOW, RELY HEAVILY ON THIS COURT'S
DECISION IN HANNAH V. LARCHE, SUPRA.  IN HANNAH, THIS COURT UPHELD THE
CIVIL RIGHTS COMMISSION AGAINST CHALLENGES SIMILAR TO THOSE INVOLVED IN
THE PRESENT CASE.  INDEED, ACT NO. 2 WAS DRAFTED WITH HANNAH IN MIND
AND THE STRUCTURE AND POWERS OF THE COMMISSION HERE ARE SIMILAR TO
THOSE OF THE CIVIL RIGHTS COMMISSION.  SEE JENKINS V. MCKEITHEN, 286
F.SUPP.,AT 540; MARTONE V. MORGAN, SUPRA.  WE CANNOT AGREE, HOWEVER,
THAT HANNAH CONTROLS THE PRESENT CASE, FOR WE THINK THAT THERE ARE
CRUCIAL DIFFERENCES BETWEEN THE ISSUES PRESENTED BY THIS COMPLAINT AND
THE ISSUES IN HANNAH. 

THE APPELLANTS IN HANNAH WERE PERSONS SUBPOENAED TO APPEAR BEFORE
THE CIVIL RIGHTS COMMISSION IN CONNECTION WITH COMPLAINTS ABOUT
DEPRIVATIONS OF VOTING RIGHTS.  THEY OBJECTED TO THE CIVIL RIGHTS
COMMISSION'S RULES ABOUT NONDISCLOSURE OF THE COMPLAINANTS AND ABOUT
LIMITATIONS ON THE RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES.  THIS
COURT RULED THAT THE COMMISSION'S RULES WERE CONSISTENT WITH THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  THE COURT NOTED THAT 

"'(DUE PROCESS' IS AN ELUSIVE CONCEPT.  ITS EXACT BOUNDARIES ARE
UNDEFINABLE, AND ITS CONTENT VARIES ACCORDING TO SPECIFIC FACTUAL
CONTEXTS . . . . WHETHER THE CONSTITUTION REQUIRES THAT A PARTICULAR
RIGHT OBTAIN IN A SPECIFIC PROCEEDING DEPENDS UPON A COMPLEXITY OF
FACTORS.  THE NATURE OF THE ALLEGED RIGHT INVOLVED, THE NATURE OF THE
PROCEEDING, AND THE POSSIBLE BURDEN ON THAT PROCEEDING, AND THE
POSSIBLE BURDEN ON THAT PROCEEDING, ARE ALL CONSIDERATIONS WHICH MUST
BE TAKEN INTO ACCOUNT."  363 U.S.,AT 442. 

IN REJECTING APPELLANTS' CHALLENGE TO THE CIVIL RIGHTS COMMISSION'S
PROCEDURES, THE COURT PLACED GREAT EMPHASIS ON THE INVESTIGATORY
FUNCTION OF THE COMMISSION: 

"(ITS FUNCTION IS PURELY INVESTIGATIVE AND FACT-FINDING.  IT DOES
NOT ADJUDICATE.  IT DOES NOT HOLD TRIALS OR DETERMINE ANYONE'S CIVIL OR
CRIMINAL LIABILITY.  IT DOES NOT ISSUE ORDERS.  NOR DOES IT INDICT,
PUNISH, OR IMPOSE ANY LEGAL SANCTIONS.  IT DOES NOT MAKE DETERMINATIONS
DEPRIVING ANYONE OF HIS LIFE, LIBERTY, OR PROPERTY.  IN SHORT, THE
COMMISSION DOES NOT AND CANNOT TAKE ANY AFFIRMATIVE ACTION WHICH WILL
AFFECT AN INDIVIDUAL'S LEGAL RIGHTS.  THE ONLY PURPOSE OF ITS EXISTENCE
IS TO FIND FACTS WHICH MAY SUBSEQUENTLY BE USED AS THE BASIS FOR
LEGISLATIVE OR EXECUTIVE ACTION."  363 U.S.,AT 441.  THE COURT NOTED
THAT ANY ADVERSE CONSEQUENCES TO THOSE BEING INVESTIGATED, SUCH AS
SUBJECTING THEM TO PUBLIC OPPROBRIUM, WERE PURELY CONJECTURAL, AND, IN
ANY CASE, WERE MERELY COLLATERAL AND "NOT . . . THE RESULT OF ANY
AFFIRMATIVE DETERMINATIONS MADE BY THE COMMISSION . . . ."  363 U.S.,AT
443.  MORGAN V. UNITED STATES, 304 U.S. 1 (1938), JOINT ANTI-FASCIST
REFUGEE COMMITTEE V. MCGRATH, SUPRA, AND GREENE V. MCELROY, SUPRA, WERE
DISTINGUISHED ON THE GROUND THAT "(THOSE CASES . . . INVOLVED . . .
DETERMINATIONS IN THE NATURE OF ADJUDICATIONS AFFECTING LEGAL RIGHTS." 
363 U.S.,AT 451. 

WE REAFFIRM THE DECISION IN HANNAH.  IN OUR VIEW, HOWEVER, THE
COMMISSION IN THE PRESENT CASE DIFFERS IN A SUBSTANTIAL RESPECT FROM
THE CIVIL RIGHTS COMMISSION AND THE OTHER EXAMPLES CITED BY THE COURT
IN HANNAH.  IT IS TRUE, AS THE SUPREME COURT OF LOUISIANA HAS HELD,
MARTONE V. MORGAN, SUPRA, THAT THE COMMISSION DOES NOT ADJUDICATE IN
THE SENSE THAT A COURT DOES, NOR DOES THE COMMISSION CONDUCT, STRICTLY
SPEAKING, A CRIMINAL PROCEEDING.  NEVERTHELESS, THE ACT, WHEN ANALYZED
IN LIGHT OF THE ALLEGATIONS OF THE COMPLAINT, MAKES IT CLEAR THAT THE
COMMISSION EXERCISES A FUNCTION VERY MUCH AKIN TO MAKING AN OFFICIAL
ADJUDICATION OF CRIMINAL CULPABILITY.  SEE JOINT ANTI-FASCIST REFUGEE
COMMITTEE V. MCGRATH, SUPRA. 

THE COMMISSION IS LIMITED TO CRIMINAL LAW VIOLATIONS; THE ACT
EXPLICITLY PROVIDES THAT THE COMMISSION SHALL HAVE NO JURISDICTION OVER
CIVIL MATTERS IN THE LABOR-MANAGEMENT RELATIONS FIELD.  INDEED, THE
COMMISSION IS EVEN LIMITED TO CERTAIN TYPES OF CRIMINAL ACTIVITIES. 
/4/  AS NOTED ABOVE, NOTHING IN THE ACT INDICATES THAT THE COMMISSION'S
FINDINGS ARE TO BE USED FOR LEGISLATIVE PURPOSES.  RATHER, EVERYTHING
IN THE ACT POINTS TO THE FACT THAT IT IS CONCERNED ONLY WITH EXPOSING
VIOLATIONS OF CRIMINAL LAWS BY SPECIFIC INDIVIDUALS.  IN SHORT, THE
COMMISSION VERY CLEARLY EXERCISES AN ACCUSATORY FUNCTION; IT IS
EMPOWERED TO BE USED AND ALLEGEDLY IS USED TO FIND NAMED INDIVIDUALS
GUILTY OF VIOLATING THE CRIMINAL LAWS OF LOUISIANA AND THE UNITED
STATES AND TO BRAND THEM AS CRIMINALS IN PUBLIC. 

GIVEN THIS VIEW OF THE PURPOSE OF THE LABOR-MANAGEMENT COMMISSION OF
INQUIRY, WE AGREE WITH JUSTICE FRANKFURTER, CONCURRING IN THE RESULT IN
HANNAH V. LARCHE: 

   "WERE THE (CIVIL RIGHTS) COMMISSION EXERCISING AN ACCUSATORY

  FUNCTION, WERE ITS DUTY TO FIND THAT NAMED INDIVIDUALS WERE

  RESPONSIBLE FOR WRONGFUL DEPRIVATION OF VOTING RIGHTS AND TO

  ADVERTISE SUCH FINDING OR TO SERVE AS PART OF THE PROCESS OF

  CRIMINAL PROSECUTION, THE RIGOROUS PROTECTIONS RELEVANT TO

  CRIMINAL PROSECUTIONS MIGHT WELL BE THE CONTROLLING STARTING

  POINT FOR ASSESSING THE PROTECTION WHICH THE COMMISSION'S

  PROCEDURE PROVIDES."  363 U.S.,AT 488. 

WHEN VIEWED FROM THIS PERSPECTIVE, IT IS CLEAR THE PROCEDURES OF THE
COMMISSION DO NOT MEET THE MINIMAL REQUIREMENTS MADE OBLIGATORY ON THE
STATES BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
SPECIFICALLY, THE ACT SEVERELY LIMITS THE RIGHT OF A PERSON BEING
INVESTIGATED TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM. 
ONLY A PERSON APPEARING AS A WITNESS MAY CROSS-EXAMINE OTHER
WITNESSES.  CROSS-EXAMINATION IS FURTHER LIMITED TO THOSE QUESTIONS
WHICH THE COMMISSION "DEEMS TO BE APPROPRIATE TO ITS INQUIRY," AND
THOSE QUESTIONS MUST BE SUBMITTED PRESUMABLY BEFOREHAND, IN WRITING TO
THE COMMISSION.  WE HAVE FREQUENTLY EMPHASIZED THAT THE RIGHT TO
CONFRONT AND CROSS-EXAMINE WITNESSES IS A FUNDAMENTAL ASPECT OF
PROCEDURAL DUE PROCESS.  SEE, E.G., WILLNER V. COMMITTEE ON CHARACTER
AND FITNESS, 373 U.S. 96, 103-104 (1963); GREENE V. MCELROY, SUPRA, AT
496-499, AND CASES CITED.  IN THE PRESENT CONTEXT, WHERE THE COMMISSION
ALLEGEDLY MAKES AN ACTUAL FINDING THAT A SPECIFIC INDIVIDUAL IS GUILTY
OF A CRIME, WE THINK THAT DUE PROCESS REQUIRES THE COMMISSION TO AFFORD
A PERSON BEING INVESTIGATED THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE
WITNESSES AGAINST HIM, SUBJECT ONLY TO TRADITIONAL LIMITATIONS ON THOSE
RIGHTS.  CF. POINTER V. TEXAS, 380 U.S. 400 (1965).     THE
COMMISSION'S PROCEDURES ALSO DRASTICALLY LIMIT THE RIGHT OF A PERSON
INVESTIGATED TO PRESENT EVIDENCE ON HIS OWN BEHALF.  IT IS TRUE THAT HE
MAY APPEAR AND CALL A "REASONABLE NUMBER OF WITNESSES" IN EXECUTIVE
SESSION, BUT SHOULD THE COMMISSION DECIDE TO HOLD A PUBLIC HEARING, HE
IS LIMITED TO PRESENTATION OF HIS OWN TESTIMONY AND THE "PERTINENT"
WRITTEN STATEMENTS OF OTHERS.  THE RIGHT TO PRESENT ORAL TESTIMONY FROM
OTHER WITNESSES AND THE POWER TO COMPEL ATTENDANCE OF THOSE WITNESSES
MAY BE DENIED IN THE DISCRETION OF THE COMMISSION.  THE RIGHT TO
PRESENT EVIDENCE IS, OF COURSE, ESSENTIAL TO THE FAIR HEARING REQUIRED
BY THE DUE PROCESS CLAUSE.  SEE, E.G., MORGAN V. UNITED STATES, SUPRA,
AT 18; BALTIMORE & OHIO R. CO. V. UNITED STATES, 298 U.S. 349, 368-369
(1936).  AND, AS WE HAVE NOTED ABOVE, THIS RIGHT BECOMES PARTICULARLY
FUNDAMENTAL WHEN THE PROCEEDING ALLEGEDLY RESULTS IN A FINDING THAT A
PARTICULAR INDIVIDUAL WAS GUILTY OF A CRIME.  CF. WASHINGTON V. TEXAS,
388 U.S. 14 (1967); IN RE OLIVER, 333 U.S. 257, 273 (1948).  WE DO NOT
MEAN TO SAY THAT THE COMMISSION MAY NOT IMPOSE REASONABLE RESTRICTIONS
ON THE NUMBER OF WITNESSES AND ON THE SUBSTANCE OF THEIR TESTIMONY; WE
ONLY HOLD THAT A PERSON'S RIGHT TO PRESENT HIS CASE SHOULD NOT BE LEFT
TO THE UNFETTERED DISCRETION OF THE COMMISSION. 

APPELLANT ARGUES THAT THE PROCEDURES CONTEMPLATED BY THE ACT ARE
DEFICIENT IN OTHER RESPECTS.  IN PARTICULAR, HE ALLEGES THAT THE ACT
PROVIDES NO MEANINGFUL RULES OF EVIDENCE AND FAILS TO PROVIDE STANDARDS
OF GUILT OR INNOCENCE.  HE ALSO ALLEGES THAT THE ACT DEPRIVES HIM OF
EFFECTIVE ASSISTANCE OF COUNSEL.  WE HAVE, HOWEVER, SAID ENOUGH TO
DEMONSTRATE THAT APPELLANT HAS ALLEGED A CAUSE OF ACTION FOR
DECLARATORY AND INJUNCTIVE RELIEF.  WHETHER THE DUE PROCESS CLAUSE
REQUIRES THAT THE COMMISSION PROVIDE ALL THE PROCEDURAL PROTECTIONS
AFFORDED A DEFENDANT IN A CRIMINAL PROSECUTION, OR WHETHER SOMETHING
LESS IS SUFFICIENT, ARE QUESTIONS THAT WE THINK SHOULD BE INITIALLY
ANSWERED BY THE DISTRICT COURT ON REMAND.  AS WE HAVE NOTED, "(WHETHER
THE CONSTITUTION REQUIRES THAT A PARTICULAR RIGHT OBTAIN IN A SPECIFIC
PROCEEDING DEPENDS UPON A COMPLEXITY OF FACTORS."  HANNAH V. LARCHE,
SUPRA, AT 442.  WE THINK IT INAPPROPRIATE TO RULE ON THE EXTENT TO
WHICH THE COMMISSION'S PROCEDURES MAY RUN AFOUL OF THE DUE PROCESS
CLAUSE ON THE BASIS OF THE RECORD BEFORE US, BARREN AS IT IS OF ANY
ESTABLISHED FACTS.  THAT ISSUE IS BEST DECIDED IN THE FIRST INSTANCE BY
THE DISTRICT COURT IN LIGHT OF THE EVIDENCE ADDUCED AT TRIAL. 

WE DO NOT MEAN TO SAY THAT THIS SAME ANALYSIS APPLIES TO EVERY BODY
WHICH HAS AN ACCUSATORY FUNCTION.  THE GRAND JURY, FOR EXAMPLE, NEED
NOT PROVIDE ALL THE PROCEDURAL GUARANTEES ALLEGED BY APPELLANT TO BE
APPLICABLE TO THE COMMISSION.  AS THIS COURT NOTED IN HANNAH, "THE
GRAND JURY MERELY INVESTIGATES AND REPORTS.  IT DOES NOT TRY."  363
U.S.,AT 449.  MOREOVER, "(THE FUNCTIONS OF THAT INSTITUTION AND ITS
CONSTITUTIONAL PREROGATIVES ARE ROOTED IN LONG CENTURIES OF ANGLO
AMERICAN HISTORY."  ID., AT 489-490 (FRANKFURTER, J., CONCURRING IN THE
RESULT).  FINALLY THE GRAND JURY IS DESIGNED TO INTERPOSE AN
INDEPENDENT BODY OF CITIZENS BETWEEN THE ACCUSED AND THE PROSECUTING
ATTORNEY AND THE COURT.  SEE STIRONE V. UNITED STATES, 361 U.S. 212,
218 (1960); EX PARTE BAIN, 121 U.S. 1, 11 (1887); HANNAH V. LARCHE,
SUPRA, AT 497-499 (DISSENTING OPINION).  INVESTIGATIVE BODIES SUCH AS
THE COMMISSION HAVE NO CLAIM TO SPECIFIC CONSTITUTIONAL SANCTION.  IN
ADDITION, THE ALLEGED FUNCTION OF THE COMMISSION IS TO MAKE SPECIFIC
FINDINGS OF GUILT, NOT MERELY TO INVESTIGATE AND RECOMMEND.  FINALLY,
IT IS CLEAR FROM THE ACT AND FROM THE ALLEGATIONS OF THE COMPLAINT THAT
THE COMMISSION IS IN NO SENSE AN "INDEPENDENT" BODY OF CITIZENS. 
RATHER, ITS MEMBERS SERVE AT THE PLEASURE OF THE GOVERNOR, LA. REV.
STAT. ANN. SEC. 23:880.1 (SUPP. 1969), AND IT CANNOT ACT IN THE ABSENCE
OF A "REFERRAL" FROM THE GOVERNOR, LA. REV. STAT. ANN. SECS. 23:880.5,
23:880.6 A (SUPP. 1969). 

WE ALSO WISH TO EMPHASIZE THAT WE DO NOT HOLD THAT APPELLANT IS NOW
ENTITLED TO DECLARATORY OR INJUNCTIVE RELIEF.  WE ONLY HOLD THAT HE HAS
ALLEGED A CAUSE OF ACTION WHICH MAY MAKE SUCH RELIEF APPROPRIATE.  IT
STILL REMAINS FOR HIM TO PROVE AT TRIAL THAT THE COMMISSION IS DESIGNED
TO AND DOES INDEED ACT IN THE MANNER ALLEGED IN HIS COMPLAINT, AND THAT
ITS PROCEDURES FAIL TO MEET THE REQUIREMENTS OF DUE PROCESS. 

        V. 

AS NOTED ABOVE, APPELLANT ALSO ALLEGES IN HIS COMPLAINT THAT
APPELLEES, AND THOSE ACTING IN CONCERT WITH THEM, HAVE ENGAGED IN A
COURSE OF CONDUCT, BOTH PURSUANT TO THE ACT AND OTHERWISE, THAT HAS
RESULTED IN THE FILING OF FALSE CRIMINAL CHARGES AGAINST APPELLANT.  HE
ALLEGES NUMEROUS OTHER RELATED ACTIONS ALLEGEDLY DEPRIVING HIM OF HIS
RIGHTS SECURED BY THE CONSTITUTION.  THE COMPLAINT SEEKS DECLARATORY
AND INJUNCTIVE RELIEF WITH REGARD TO THESE ACTS; IN PARTICULAR,
APPELLANT PRAYS THAT THE DISTRICT COURT ENJOIN ALL CIVIL AND CRIMINAL
ACTIONS PENDING OR TO BE INSTITUTED AGAINST HIM.  TO THE EXTENT THAT
THESE ALLEGATIONS INVOLVE ACTIONS TAKEN UNDER THE DIRECT AUTHORITY OF
ACT NO. 2, WE THINK THAT THEY MAY PROPERLY BE CONSIDERED BY THE
DISTRICT COURT IN DETERMINING THE CONSTITUTIONALITY OF THE ACT. 
HOWEVER, THE DISTRICT COURT CHARACTERIZED MANY OF APPELLANT'S
ALLEGATIONS AS INVOLVING MERELY POTENTIAL DEFENSES TO THE CRIMINAL
CHARGES ASSERTEDLY PENDING.  IN THE EXERCISE OF ITS DISCRETION AND
BECAUSE THE ISSUES WERE "INTERTWINED" WITH THE ISSUE OF THE
CONSTITUTIONALITY OF THE ACT, THE COURT PASSED UPON THE QUESTION OF
WHETHER APPELLANT HAD ALLEGED A CAUSE OF ACTION FOR DECLARATORY AND
INJUNCTIVE RELIEF.  RELYING IN PART ON ITS DETERMINATION THAT THE ACT
WAS CONSTITUTIONAL, THE COURT HELD THAT APPELLANT HAD NOT STATED A
CLAIM FOR DECLARATORY OR INJUNCTIVE RELIEF AND THAT APPELLANT'S REMEDY
WAS TO DEFEND ANY CRIMINAL PROSECUTIONS THEN PENDING OR THAT MIGHT BE
BROUGHT.  JENKINS V. MCKEITHEN, SUPRA, 286 F.SUPP.,AT 542-543.  WHETHER
THE COURT WILL TAKE THE SAME VIEW OF THE PROPRIETY OF PASSING ON THE
QUESTION OR OF THE MERITS IN LIGHT OF OUR HOLDING AND THE EVIDENCE
ADDUCED AT TRIAL CANNOT BE DETERMINED AT THIS TIME.  ACCORDINGLY, WE
THINK THAT ISSUE SHOULD BE LEFT OPEN FOR RECONSIDERATION ON REMAND. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS. 

              IT IS SO ORDERED. 

/1/  THE CONSTITUTIONALITY OF THE ACT WAS UPHELD IN MARTONE V.
MORGAN, 251 LA. 993, 207 SO.2D 770, APPEAL DISMISSED, 393 U.S. 12
(1968) (PETITION FOR REHEARING PENDING). 

/2/  "(ITS POWER, AUTHORITY OR JURISDICTION SHALL IN NO CASE EXTEND
TO (1) ANY MATTER WHICH IS SOLELY AN 'UNFAIR LABOR PRACTICE' OR AN
'UNFAIR EMPLOYMENT PRACTICE' OR A LEGITIMATE LABOR DISPUTE UNDER THE
PROVISIONS OF ANY FEDERAL OR STATE LAW; OR (2) ANY MATTER WHICH RELATES
TO LEGITIMATE ECONOMIC ISSUES ARISING BETWEEN LABOR AND MANAGEMENT OR
THE MANNER IN WHICH LABOR PRACTICES OR ECONOMIC ISSUES ARE TO BE
SETTLED BETWEEN THE PARTIES, WHETHER BY NEGOTIATION, ARBITRATION,
LOCKOUT OR STRIKE; OR (3) ANY MATTER WHICH RELATES SOLELY TO THE
INTERNAL AFFAIRS OF LABOR ORGANIZATIONS, INCLUDING BUT NOT NECESSARILY
RESTRICTED TO MEMBERSHIP POLICIES, ELECTION PROCEDURES, MEMBERSHIP
RIGHTS AND LIKE MATTERS; OR (4) ANY ALLEGED ACTS OF VIOLENCE OR THREATS
OF VIOLENCE OR SO-CALLED 'MASS PICKETING,' OR LIKE CONDUCT BY EITHER AN
EMPLOYER OR A UNION, WHICH IS NOT RELATED TO BRIBERY OR EXTORTION, AS
DEFINED BY LAW, BUT WHICH IS RELATED ONLY TO AN ORGANIZATIONAL
OBJECTIVE OF A LABOR UNION OR WHICH IS RELATED ONLY TO FURTHERING THE
INTERESTS OF ONE SIDE OR THE OTHER IN A 'LABOR DISPUTE,' AS THAT TERM
IS DEFINED BY FEDERAL OR STATE LAW, SUCH CONDUCT BEING ALREADY
REGULATED BY AND SUBJECT TO THE POLICE POWER OF THE STATE, EXERCISED
THROUGH SUCH AGENCIES AS THE DIVISION OF STATE POLICE, OR (5) ANY
MATTER WHICH RELATES SOLELY TO THE INTERNAL AFFAIRS OF ANY BUSINESS
ORGANIZATION, INCLUDING BUT NOT NECESSARILY RESTRICTED TO ITS LABOR AND
BUSINESS POLICY AND GENERAL OPERATIONS, OR (6) ANY MATTERS WHICH
CONSTITUTE A COMBINATION OF ANY TWO OR MORE OF THESE."  LA. REV. STAT.
ANN. SEC. 23:880.6 B (SUPP. 1969). 

/3/  APPELLANT DOES NOT ASSIGN THIS RULING AS ERROR ON THIS APPEAL. 

/4/  SEE N. 2, SUPRA. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT FOR THE REASONS STATED IN
HIS DISSENTING OPINION IN HANNAH V. LARCHE, 363 U.S. 420, 493-508
(1960). 

I CONCUR IN THE COURT'S JUDGMENT AND IN MUCH OF WHAT IS SAID IN THE
PREVAILING OPINION.  I CANNOT AGREE, HOWEVER, TO REAFFIRMING HANNAH V.
LARCHE, 363 U.S. 420.  I JOINED THE DISSENT OF MR. JUSTICE DOUGLAS IN
THE HANNAH CASE AND STILL ADHERE TO THAT DISSENT.  THE LOUISIANA LAW
HERE, LIKE THE FEDERAL LAW CONSIDERED IN THE HANNAH CASE, IS, IN MY
JUDGMENT, NOTHING MORE NOR LESS THAN A SCHEME FOR A NONJUDICIAL
TRIBUNAL TO CHARGE, TRY, CONVICT, AND PUNISH PEOPLE WITHOUT COURTS,
WITHOUT JURIES, WITHOUT LAWYERS, WITHOUT WITNESSES-- IN SHORT, WITHOUT
ANY OF THE PROCEDURAL PROTECTIONS THAT THE BILL OF RIGHTS PROVIDES. 
THE LOUISIANA LAW IS REMINISCENT OF THE OLD PARLIAMENTARY AND
ECCLESIASTICAL COMMISSION TRIALS WHICH TOOK AWAY THE LIBERTY OF JOHN
LILBURNE AND HIS CONTEMPORARIES WITHOUT DUE PROCESS OF LAW-- THAT IS,
WITHOUT GIVING THEM THE BENEFIT OF A TRIAL IN ACCORDANCE WITH THE LAW
OF THE LAND.  FOR THESE REASONS I BELIEVE THAT THE LOUISIANA LAW DENIES
DUE PROCESS OF LAW. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

SWEPT UP IN A CONSTITUTIONAL REVOLUTION OF ITS OWN MAKING, THE COURT
HAS A TENDENCY TO LOSE SIGHT OF THE PRINCIPLES THAT HAVE TRADITIONALLY
DEFINED AND LIMITED ITS ROLE IN OUR POLITICAL SYSTEM.  CONSTITUTIONAL
ADJUDICATION IS A RESPONSIBILITY WE CANNOT SHIRK.  BUT IT IS A GRAVE
AND EXTRAORDINARY PROCESS, ONE OF LAST RESORT.  AND WHEN IT CANNOT
LEGITIMATELY BE AVOIDED, IT IS A FUNCTION THAT MUST BE PERFORMED WITH
THE UTMOST CIRCUMSPECTION AND PRECISION, LEST THE COURT'S OPINIONS
EMANATE RADIATIONS WHICH UNINTENTIONALLY, AND SPURIOUSLY, INDICATE
VIEWS ON MATTERS WE HAVE NOT FULLY CONSIDERED. 

OVER THE YEARS, THE COURT HAS EVOLVED A NUMBER OF PRINCIPLES
DESIGNED TO ASSURE THAT WE ACT WITHIN OUR PROPER CONFINES.  PERHAPS THE
MOST FUNDAMENTAL OF THESE IS THAT WE ADJUDICATE ONLY WHEN, AND TO THE
EXTENT THAT, WE ARE PRESENTED WITH AN ACTUAL AND CONCRETE CONTROVERSY. 
TODAY, IN ITS HASTE TO MAKE NEW CONSTITUTIONAL DOCTRINE, THE COURT
TURNS THIS PRINCIPLE ON ITS HEAD, AS IT ATTEMPTS TO CREATE A
CONTROVERSY OUT OF A COMPLAINT WHICH ALLEGES NONE.  WITH RESPECT, I
MUST DISSENT. 

        I. 

ONLY LAST TERM, IN FLAST V. COHEN, 392 U.S. 83 (1968), THE COURT
REAFFIRMED THE PROPOSITION THAT "WHEN STANDING (TO SUE) IS PLACED IN
ISSUE IN A CASE, THE QUESTION IS WHETHER THE PERSON WHOSE STANDING IS
CHALLENGED IS A PROPER PARTY TO REQUEST AN ADJUDICATION OF A PARTICULAR
ISSUE . . . ," ID., AT 99-100, THAT IS, "WHETHER THERE IS A LOGICAL
NEXUS BETWEEN THE STATUS ASSERTED AND THE CLAIM SOUGHT TO BE
ADJUDICATED."  ID., AT 102.  IN THE PRESENT CONTEXT, THIS MEANS,
SIMPLY, THAT FOR A PLAINTIFF TO CHALLENGE A PARTICULAR COURSE OF
CONDUCT PURSUED OR THREATENED TO BE PURSUED BY A DEFENDANT, IT IS NOT
ENOUGH FOR THE PLAINTIFF TO ALLEGE THAT HE HAS BEEN OR WILL BE INJURED
BY THE DEFENDANT; THE PLAINTIFF MUST FURTHER CLAIM THAT THE INJURY TO
HIM (OR TO THOSE WHOM HE HAS STATUS TO REPRESENT /1/  ) RESULTS FROM
THE PARTICULAR COURSE OF CONDUCT HE CHALLENGES. 

APPELLANT IN THE CASE AT BAR ATTACKS THE CONSTITUTIONAL VALIDITY OF
CERTAIN SPECIFIC STATUTORY PROCEDURES OF THE LOUISIANA LABOR-MANAGEMENT
COMMISSION OF INQUIRY.  APPLYING THE PRINCIPLE STATED ABOVE, IT IS NOT
SUFFICIENT THAT HE MAY BE INJURED BY THE COMMISSION OR ITS MEMBERS IN
SOME WAY.  THE INJURY MUST BE ALLEGED TO ARISE OUT OF, OR RELATE TO,
THE APPLICATION OF THE PROCEDURES IN QUESTION.  THE MOST GENEROUS
READING OF APPELLANT'S COMPLAINT CANNOT MASK THE SIMPLE TRUTH THAT IT
FALLS SHORT OF THIS MINIMAL REQUIREMENT. 

AT THE RISK OF WEARYING THE READER, I MUST DEAL WITH APPELLANT'S
PLEADINGS IN SOME DETAIL.  THE RELEVANT PORTION OF THE COMPLAINT, AND
THAT RELIED UPON BY THE COURT IS PART IV ("FACTS"), WHICH CONTAINS 17
OPERATIVE PARAGRAPHS. 

PARAGRAPHS 1-3 IDENTIFY THE PLAINTIFF AND DEFENDANTS. 

  PARAGRAPHS 4-6 CHARACTERIZE THE COMMISSION AS AN EXECUTIVE TRIAL
AGENCY," AND OUTLINE ITS INVESTIGATIVE FUNCTIONS.  PARAGRAPH 7 AVERS
THAT THE COMMISSION'S PROCEDURES FOR PERFORMING THESE FUNCTIONS ARE
CONTITUTIONALLY DEFECTIVE WITH RESPECT TO MATTERS OF COUNSEL,
CONFRONTATION, COMPULSORY PROCESS, RULES OF EVIDENCE, STANDARDS OF
GUILT, RIGHT OF APPEAL, AND SELF-INCRIMINATION.  NOWHERE, EITHER
DIRECTLY OR INDIRECTLY, DO THESE PARAGRAPHS INTIMATE THAT APPELLANT (OR
FOR THAT MATTER, ANYONE ELSE) HAS BEEN AFFECTED BY THE PROCEDURES
THEMSELVES AND THEIR ASSERTED EFFECTS. 

PARAGRAPH 8 SHOULD BE QUOTED IN FULL: 

     "FURTHERMORE COMPLAINANT ALLEGES THAT SAID DEFENDANTS, THEIR

  AGENTS, REPRESENTATIVES AND EMPLOYEES, AND THOSE ACTING IN

  CONCERT WITH THEM, IN CONNECTION WITH THE ADMINISTRATION OF THE

 PROVISIONS OF SAID ACT, HAVE SINGLED OUT COMPLAINANT AND MEMBERS

  OF TEAMSTERS LOCAL NO. 5 AS A SPECIAL CLASS OF PERSONS FOR

  REPRESSIVE AND WILLFULLY PUNITIVE ACTION, SOLELY BECAUSE THEY ARE

  MEMBERS OF SAID TEAMSTERS LOCAL NO. 5, IN FURTHERANCE OF WHICH A

  DELIBERATE EFFORT HAS BEEN MADE AND CONTINUES TO BE MADE BY SAID

  OFFICIALS, SPEARHEADED BY DEFENDANT MCKEITHEN, WHILE ACTING UNDER

  COLOR OF STATE LAW, TO DESTROY THE CURRENT POWER STRUCTURE OF THE

LABOR UNION AFORESAID AND SAID UNION TO WHICH COMPLAINANT BELONGS

  AS A MEMBER AND THROUGH WHICH HE EXPERIENCES ECONOMIC SURVIVAL,

  AND TO INSTALL A NEW POWER STRUCTURE ORIENTED AND SUBSERVIENT TO

  THE JAMES R. HOFFA GROUP OR CLIQUE OF THE INTERNATIONAL

  BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

  AMERICA; THIS EFFORT HAS INCLUDED AND CONTINUES TO INCLUDE (A)

  THE DELIBERATE CIRCULATION FOR PUBLIC CONSUMPTION OF WILLFUL

  FALSEHOODS ABOUT MEMBERS OF SAID LABOR UNION, SUCH AS

  CHARACTERIZING SAID MEMBERS AS 'HOODLUMS' AND 'GANGSTERS,'

  COMPARABLE IN DEPRAVITY TO THE SINISTER MAFIA GANGSTERS OF

  UNDERWORLD CRIMINALS, WHILE MASKING SUCH LAWLESS CONDUCT BEHIND A

VERBAL FACADE OF LAW AND ORDER, (B) THE INDISCRIMINATE FILING OF

  CRIMINAL CHARGES AGAINST MEMBERS OF SAID LABOR UNION, WHERE THERE

  EXISTS NO JUSTIFIABLE BASIS THEREFOR AND THE CONCOMITANT EXACTION

  OF EXCESSIVE BAIL BONDS, (C) THE INTIMIDATING OF PUBLIC OFFICIALS

  INTO CARRYING OUT THE TYRANNICAL AIMS OF SUCH INDISCRIMINATE

  CRIMINAL PROSECUTION, AND (D) THE DICTATORIAL USE OF THE POWERS

  OF THE OFFICE OF GOVERNOR OF LOUISIANA IN FURTHERANCE THEREOF." 

IN PARAGRAPH 9, APPELLANT AVERS, "AS MORE SPECIFICALLY APPLIES TO
HIM," THAT APPELLEES CONSPIRED TO FILE FALSE CRIMINAL CHARGES AGAINST
HIM.  PARAGRAPHS 10-14 DESCRIBE IN DETAIL THE CHRONOLOGY AND CONDUCT OF
THE RESULTING CRIMINAL PROCEEDINGS.     PARAGRAPH 15 ALLEGES THAT
APPELLEES INTIMIDATED CERTAIN PERSONS (NOT INCLUDING APPELLANT) IN
ORDER TO ELICIT FALSE STATEMENTS TO BRING ABOUT THE PROSECUTION OF
OTHER PERSONS (NOT INCLUDING APPELLANT). 

FINALLY, PARAGRAPH 16 CONTAINS THE USUAL AVERMENTS REQUISITE TO
EQUITABLE AND DECLARATORY RELIEF, AND PARAGRAPH 17 REQUESTS A TEMPORARY
RESTRAINING ORDER. 

READING AND RE-READING THESE MANY PARAGRAPHS OF LEGAL AND FACTUAL
AVERMENTS, ONE CANNOT HELP BUT BE STRUCK BY THE CONSPICUOUS ABSENCE OF
ANY CLAIM THAT APPELLANT HAS BEEN OR WILL BE INVESTIGATED BY THE
COMMISSION, OR CALLED AS A WITNESS BEFORE IT, OR IDENTIFIED IN ITS
FINDINGS, OR, INDEED, SUBJECTED TO ANY OF ITS PROCESSES.  /2/  CAN THIS
LACUNA BE FILLED BY IMPLICATION?  I BELIEVE NOT. 

ONLY PARAGRAPHS 9-14 RELATE SPECIFICALLY TO APPELLANT, AND THEY
CONTAIN NO HINT THAT THE FILING OF THE CRIMINAL INFORMATIONS AGAINST
HIM WAS THE RESULT OF THE COMMISSION'S USE OF ANY OF THE PROCEDURES
WHICH THE COURT TODAY INDICATES ARE CONSTITUTIONALLY SUSPECT.  AND
ASSUMING, CONTRARY TO FACT, SEE N. 1, SUPRA, THAT APPELLANT REPRESENTS
OTHERS BESIDES HIMSELF IN THIS ACTION, THE ONLY OTHER ARGUABLY GERMANE
PARAGRAPH IS PARA. 8(A), WHICH ALLEGES THE "DELIBERATE CIRCULATION FOR
PUBLIC CONSUMPTION OF WILLFUL FALSEHOODS ABOUT MEMBERS OF SAID LABOR
UNION."  THIS PARAGRAPH CONSPICUOUSLY OMITS ANY SUGGESTION THAT SUCH
"FALSEHOODS" WERE THE RESULT OF TESTIMONY BEFORE THE COMMISSION OR THAT
THEY WERE CONTAINED IN THE COMMISSION'S "FINDINGS"-- A TERM THAT IS
REPEATEDLY EMPHASIZED IN THE EARLIER DESCRIPTION OF THE COMMISSION'S
FUNCTIONS. 

THE COMPLAINT'S UTTER FAILURE TO ALLEGE ANY CONNECTION BETWEEN THE
INJURIES ASSERTED TO HAVE BEEN SUFFERED BY APPELLANT AND THE PROCEDURES
COMPLAINED OF IS NOT, ON ANY OBJECTIVE READING OF THE COMPLAINT, AN
ACCIDENTAL OMISSION OR THE RESULT OF COUNSEL'S "INARTFULNESS"-- AS MY
BROTHER MARSHALL WOULD PUT IT.  IN MY VIEW, THE ONLY PLAUSIBLE
INFERENCE-- ESPECIALLY WHEN IT IS REMEMBERED THAT APPELLANT WAS
REPRESENTED BY COUNSEL THROUGHOUT THIS LITIGATION-- IS THAT SUCH
ALLEGATIONS WERE OMITTED BECAUSE APPELLANT HAD NO FACTS TO SUPPORT
THEM.  /3/ 

THE PREVAILING OPINION'S STRAINED CONSTRUCTION OF THE COMPLAINT GOES
WELL BEYOND THE PRINCIPLE, WITH WHICH I HAVE NO QUARREL, THAT FEDERAL
PLEADINGS SHOULD BE MOST LIBERALLY CONSTRUED.  IT ENTIRELY UNDERMINES
AN IMPORTANT FUNCTION OF THE FEDERAL SYSTEM OF PROCEDURE-- THAT OF
DISPOSING OF UNMERITORIOUS AND UNJUSTICIABLE CLAIMS AT THE OUTSET,
BEFORE THE PARTIES AND COURTS MUST UNDERGO THE EXPENSE AND TIME
CONSUMED BY EVIDENTIARY HEARINGS. 

ACCORDINGLY, I WOULD SUSTAIN THE DISMISSAL OF THE COMPLAINT ON THE
GROUND THAT APPELLANT HAS NOT SHOWN HIMSELF TO HAVE STANDING TO
CHALLENGE THE COMMISSION'S PROCEDURES. 

        II. 

BECAUSE THE COMPLAINT IS BARREN OF ANY INDICATION OF THE MANNER IN
WHICH APPELLANT IS AFFECTED BY THE COMMISSION'S FORMAL PROCEDURES, THE
PREVAILING OPINION IS REQUIRED TO MAKE ITS OWN ASSUMPTIONS.  IT PLACES
APPELLANT IN THE VAGUE POSITION OF "A PERSON BEING INVESTIGATED" BY THE
COMMISSION, ANTE, AT 428, 429, AND THENCE PROCEEDS TO DISCUSS THE
RIGHTS OF SUCH A PERSON TO CONFRONT WITNESSES AND TO OFFER EVIDENCE IN
HIS OWN BEHALF.  THE PREVAILING OPINION APPEARS UNDERSTANDABLY
RELUCTANT TO COMMIT ITSELF TO VERY MUCH.  AS I READ THE OPINION, IT
DOES NOT STATE THAT ANY OF THE COMMISSION'S PROCEDURES ARE ACTUALLY
UNCONSTITUTIONAL, BUT HOLDS ONLY THAT THERE IS ENOUGH LATENT IN THE
COMPLAINT THAT THE CASE SHOULD PROCEED TO TRIAL. 

OF NECESSITY, HOWEVER, MY BROTHER MARSHALL HAS TO EXAMINE SOME OF
THE CONSTITUTIONAL ISSUES SOUGHT TO BE RAISED BY APPELLANT IN ORDER TO
JUSTIFY A REMAND, AND HIS DISCUSSION LEAVES RADIATIONS WHICH ARE, AT
LEAST, UNCLEAR.  RELUCTANT AS I AM, UNDER THE CIRCUMSTANCES OF THIS
CASE, TO DISCUSS THE MERITS, I THEREFORE FEEL COMPELLED TO OUTLINE MY
OWN VIEWS.  I AM NOT CERTAIN TO WHAT EXTENT THEY COMPORT WITH THOSE OF
THE MAJORITY. 

THE PREVAILING OPINION FAILS TO ARTICULATE WHAT I DEEM TO BE A
CONSTITUTIONALLY SIGNIFICANT DISTINCTION BETWEEN TWO KINDS OF
GOVERNMENTAL BODIES.  THE FIRST IS AN AGENCY WHOSE SOLE OR PREDOMINANT
FUNCTION, WITHOUT SERVING ANY OTHER PUBLIC INTEREST, IS TO EXPOSE AND
PUBLICIZE THE NAMES OF PERSONS IT FINDS GUILTY OF WRONGDOING.  TO THE
EXTENT THAT SUCH A DETERMINATION-- WHETHER CALLED A "FINDING" OR AN
"ADJUDICATION"-- FINALLY AND DIRECTLY AFFECTS THE SUBSTANTIAL PERSONAL
INTERESTS, I DO NOT DOUBT THAT THE DUE PROCESS CLAUSE MAY REQUIRE THAT
IT BE ACCOMPANIED BY MANY OF THE TRADITIONAL ADJUDICATORY PROCEDURAL
SAFEGUARDS.  CF. JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341
U.S. 123 (1951). 

BY THE TERMS OF THE LOUISIANA LEGISLATION, THE APPELLEE COMMISSION
IS NOT OF THIS SORT.  ITS AUTHORITY IS "INVESTIGATORY AND FACT FINDING
ONLY."  LA. REV. STAT. ANN. SEC. 23:880.6 A (SUPP. 1969).  ITS STATED
PURPOSE IS "TO SUPPLEMENT AND ASSIST THE EFFORTS AND ACTIVITIES OF THE
SEVERAL DISTRICT ATTORNEYS, GRAND JURIES AND OTHER LAW ENFORCEMENT
OFFICIALS AND AGENCIES OF THE STATE OF LOUISIANA."  PREAMBLE TO ACT NO.
2.  ITS DUTY, WHEN IT FINDS PROBABLE CAUSE TO BELIEVE THAT THE CRIMINAL
LAWS HAVE BEEN VIOLATED, IS TO "REPORT ITS FINDINGS AND RECOMMENDATIONS
TO THE PROPER FEDERAL AND STATE AUTHORITIES . . . CHARGED WITH THE
RESPONSIBILITY FOR PROSECUTION OF CRIMINAL OFFENSES," OR TO FILE
CHARGES ITSELF.  LA. REV. STAT. ANN. SEC. 23:880.7 B (SUPP. 1969).  THE
COMMISSION HAS NO AUTHORITY TO ADJUDICATE A PERSON'S GUILT OR
INNOCENCE, AND ITS RECOMMENDATIONS AND FINDINGS HAVE NO LEGAL
CONSEQUENCES WHATSOEVER.  ID., SEC. 23:880.7 A (SUPP. 1969). 

THE COMMISSION THUS BEARS CLOSE RESEMBLANCE TO CERTAIN FEDERAL
ADMINISTRATIVE AGENCIES, INFRA, THIS PAGE AND 400, AND TO THE OFFICES
OF PROSECUTING ATTORNEYS.  THESE AGENCIES HAVE ONE SALIENT FEATURE IN
COMMON, WHICH DISTINGUISHES THEM FROM THOSE DESIGNED SIMPLY TO
"EXPOSE."  NONE OF THEM IS THE FINAL ARBITER OF ANYONE'S GUILT OR
INNOCENCE.  EACH, RATHER, PLAYS ONLY A PRELIMINARY ROLE, DESIGNED, IN
THE USUAL COURSE OF EVENTS, TO INITIATE A SUBSEQUENT FORMAL PROCEEDING
IN WHICH THE ACCUSED WILL ENJOY THE FULL PANOPLY OF PROCEDURAL
SAFEGUARDS.  FOR THIS REASON, AND BECAUSE SUCH AGENCIES COULD NOT
OTHERWISE PRACTICABLY PURSUE THEIR INVESTIGATIVE FUNCTIONS, THEY HAVE
NOT BEEN REQUIRED TO FOLLOW "ADJUDICATORY" PROCEDURES. 

I SEE NO CONSTITUTIONALLY RELEVANT DISTINCTION BETWEEN THIS STATE
COMMISSION AND THE FEDERAL ADMINISTRATIVE AGENCIES THAT PERFORM
INVESTIGATIVE FUNCTIONS DESIGNED TO DISCOVER VIOLATIONS WHICH MAY
RESULT IN THE INITIATION OF CRIMINAL PROCEEDINGS.  IN HANNAH V. LARCHE,
363 U.S. 420, 445-448, 454-485 (1960), THE COURT EXPRESSLY CONDONED THE
DENIAL OF "RIGHTS SUCH AS APPRISAL, CONFRONTATION, AND CROSS
EXAMINATION" IN SUCH "NONADJUDICATIVE, FACT-FINDING INVESTIGATIONS." 
ID., AT 446.  THE COURT RECOGNIZED, FOR EXAMPLE, THAT THE FEDERAL TRADE
COMMISSION 

"COULD NOT CONDUCT AN EFFICIENT INVESTIGATION IF PERSONS BEING
INVESTIGATED WERE PERMITTED TO CONVERT THE INVESTIGATION INTO A TRIAL. 
WE HAVE FOUND NO AUTHORITIES SUGGESTING THAT THE RULES GOVERNING
FEDERAL TRADE COMMISSION INVESTIGATIONS VIOLATE THE CONSTITUTION, AND
THIS IS UNDERSTANDABLE SINCE ANY PERSON INVESTIGATED BY THE FEDERAL
TRADE COMMISSION WILL BE ACCORDED ALL THE TRADITIONAL JUDICIAL
SAFEGUARDS AT A SUBSEQUENT ADJUDICATIVE PROCEEDING . . . ."  ID., AT
446.  AND THE COURT SAID OF THE SECURITIES AND EXCHANGE COMMISSION: 

"ALTHOUGH THE COMMISSION'S RULES PROVIDE THAT PARTIES TO
ADJUDICATIVE PROCEEDINGS SHALL BE GIVEN DETAILED NOTICE OF THE MATTERS
TO BE DETERMINED, . . . AND A RIGHT TO CROSS-EXAMINE WITNESSES
APPEARING AT THE HEARING, . . . THOSE PROVISIONS OF THE RULES ARE MADE
SPECIFICALLY INAPPLICABLE TO INVESTIGATIONS, . . . EVEN THOUGH THE
COMMISSION IS REQUIRED TO INITIATE CIVIL OR CRIMINAL PROCEEDINGS IF AN
INVESTIGATION DISCLOSES VIOLATIONS OF LAW.  UNDOUBTEDLY, THE REASON FOR
THIS DISTINCTION IS TO PREVENT THE STERILIZATION OF INVESTIGATIONS BY
BURDENING THEM WITH TRIAL-LIKE PROCEDURES."  ID., AT 446-448. 

THE STATUTORY SAFEGUARDS AFFORDED PERSONS BEING INVESTIGATED BY THE
LOUISIANA COMMISSION ARE AT LEAST EQUAL TO THOSE PROVIDED BY MOST OF
THESE FEDERAL AGENCIES.  SEE ID., AT 454-485. 

THE COMMISSION'S FUNCTIONS ALSO FIND CLOSE ANALOGIES IN THE
INVESTIGATIONS AND DETERMINATIONS THAT TAKE PLACE DAILY IN THE OFFICES
OF STATE AND FEDERAL PROSECUTING ATTORNEYS.  IN BOTH INSTANCES, THE
RESPONSIBLE OFFICIALS PROCEED BY INTERROGATING PERSONS WITH KNOWLEDGE
OF POSSIBLE VIOLATIONS OF THE CRIMINAL LAW.  IF THE PROSECUTOR BELIEVES
THAT AN INDIVIDUAL HAS COMMITTED A CRIME, HE FILES AN INFORMATION OR
SEEKS A GRAND JURY INDICTMENT.  WHEN THE COMMISSION REACHES A SIMILAR
CONCLUSION, IT TURNS ITS INTELLIGENCE OVER TO A PROSECUTOR SO THAT HE
MAY INITIATE THE FORMAL CRIMINAL PROCESS. 

FOR OBVIOUS REASONS, IT HAS NOT BEEN SERIOUSLY SUGGESTED THAT A
"PERSON UNDER INVESTIGATION" BY A DISTRICT ATTORNEY HAS ANY OF THE
"ADJUDICATIVE" CONSTITUTIONAL RIGHTS AT THE INVESTIGATIVE STAGE.  /4/
THESE RIGHTS ATTACH ONLY AFTER FORMAL PROCEEDINGS HAVE BEEN INITIATED. 
NOR, OF COURSE, DOES ONE UNDER INVESTIGATION HAVE A CONSTITUTIONAL
RIGHT THAT THE INVESTIGATIONS BE CONDUCTED IN SECRECY, OR THAT THE
OFFICIAL KEEP HIS PLANS TO PROSECUTE CONFIDENTIAL.  THE DECISION
WHETHER OR NOT TO DISCLOSE THESE MATTERS RESTS IN THE SOUND DISCRETION
OF THE RESPONSIBLE PUBLIC OFFICIAL.  VARIOUS FACTORS, SUCH AS THE FEAR
THAT A SUSPECT WILL FLEE OR THE CONCERN FOR OBTAINING AN UNBIASED JURY
WHEN THE MATTER COMES TO TRIAL, MAY MILITATE IN FAVOR OF SECRECY.  ON
THE OTHER HAND, AN APPROPRIATE DISCLOSURE OF A PENDING INVESTIGATION
MAY BRING FORTH WITNESSES AND EVIDENCE, AND SERVES A PROPER ANCILLARY
FUNCTION IN KEEPING THE PUBLIC INFORMED.  /5/ 

THE COMMISSION'S OPERATIONS DIFFER FROM THOSE OF A PROSECUTING
ATTORNEY IN ONE IMPORTANT RESPECT, HOWEVER.  THE VERY FORMALITY OF THE
COMMISSION'S INVESTIGATORY PROCESS MAY LEND GREATER CREDIBILITY AND A
GREATER AURA OF OFFICIAL SANCTION TO THE TESTIMONY GIVEN BEFORE IT AND
TO ITS FINDINGS.  ALTHOUGH IN THIS RESPECT THE COMMISSION IS NOT
DIFFERENT FROM THE FEDERAL AGENCIES DISCUSSED ABOVE, I AM NOT READY TO
SAY THAT THE COLLATERAL CONSEQUENCES OF GOVERNMENT-SANCTIONED
OPPROBRIUM MAY NOT UNDER SOME CIRCUMSTANCES ENTITLE A PERSON TO SOME
RIGHT, CONSISTENT WITH THE COMMISSION'S EFFICIENT PERFORMANCE OF ITS
INVESTIGATORY DUTIES, TO HAVE HIS PUBLIC SAY IN REBUTTAL.  HOWEVER, THE
COMMISSION'S PROCEDURES ARE FAR FROM BEING NIGGARDLY IN THIS RESPECT. 
THEY INCLUDE NOT ONLY THE RIGHT TO MAKE A PERSONAL APPEARANCE, BUT ALSO
THE RIGHT TO SUBMIT THE STATEMENTS OF OTHERS, AND, UNDER SOME
CIRCUMSTANCES, TO PRESENT QUESTIONS TO ADVERSE WITNESSES.  THIS IS FAR
MORE THAN IS GIVEN PERSONS UNDER INVESTIGATION BY THE FEDERAL AGENCIES,
AND CERTAINLY SERVES ADEQUATELY TO NEUTRALIZE ANY ADVERSE COLLATERAL
EFFECTS OF THE COMMISSION'S INVESTIGATIVE PROCEEDINGS. 

AS I NOTED ABOVE, THE VERY INSUBSTANTIALITY OF APPELLANT'S COMPLAINT
LEAVES IT UNCLEAR WHAT THE COURT HOLDS TODAY.  IT MAY BE THAT SOME OF
MY BRETHREN UNDERSTAND THE COMPLAINT TO ALLEGE THAT IN FACT THE
COMMISSION ACTS PRIMARILY AS AN AGENCY OF "EXPOSURE," RATHER THAN ONE
WHICH SERVES THE ENDS REQUIRED BY THE STATE STATUTES.  IF SO-- ALTHOUGH
I DO NOT BELIEVE THAT THE COMPLAINT CAN BE REASONABLY THUS CONSTRUED--
THE AREA OF DISAGREEMENT BETWEEN US MAY BE SMALL OR NONEXISTENT. 

BEFORE THE COURT HOLDS THAT A PURELY INVESTIGATORY AGENCY MUST ADOPT
THE FULL ROSTER OF ADJUDICATIVE SAFEGUARDS, HOWEVER, IT WOULD DO WELL
TO HEED CAREFULLY ITS OWN WARNING IN HANNAH, THAT SUCH A REQUIREMENT
"WOULD MAKE A SHAMBLES OF THE INVESTIGATION AND STIFLE THE AGENCY IN
ITS GATHERING OF FACTS."  363 U.S.,AT 444.  SUCH A REQUIREMENT WOULD
NOT ONLY INCAPACITATE STATE CRIMINAL INVESTIGAROTY BODIES AT A TIME
WHEN THEIR NEED CANNOT BE GAINSAID, BUT WOULD CAST A BROAD SHADOW OF
DOUBT OVER THE PROPRIETY OF LONG-STANDING PROCEDURES EMPLOYED BY MANY
FEDERAL AGENCIES-- PROCEDURES WHICH LESS THAN A DECADE AGO THE COURT
BELIEVED TO BE PROPER AND NECESSARY. 

/1/  AS THE PREVAILING OPINION NOTES, ANTE, AT 420, AND N. 3,
APPELLANT DOES NOT ASSIGN AS ERROR THE DISTRICT COURT'S HOLDING THAT
THIS WAS NOT A PROPER CLASS ACTION. 

/2/  AND, OF COURSE, THERE IS NO SUGGESTION THAT APPELLANT EVER
REQUESTED THAT THE COMMISSION ACCORD HIM ANY OF THE RIGHTS OF WHOSE
ABSENCE HE COMPLAINS. 

/3/  THIS INFERENCE IS SUPPORTED BY THE REPORT OF THE LABOR
MANAGEMENT COMMISSION OF INQUIRY, FILED IN THIS COURT, WHICH, OTHER
THAN MENTIONING THE LITIGATION CHALLENGING THE COMMISSION, NOWHERE
REFERS TO THIS APPELLANT. 

/4/  OF COURSE, A PERSON CALLED UPON TO PARTICIPATE IN THE
INVESTIGATION, E.G., BY ANSWERING QUESTIONS, MAY HAVE RELEVANT RIGHTS
AT THIS STAGE.  CF., E.G., MANCUSI V. DEFORTE, 392 U.S. 364 (1968). 
BUT APPELLANT DOES NOT INTIMATE, AND THE MAJORITY DOES NOT ASSUME, THAT
HE HAS BEEN OR WILL BE SUBPOENAED TO TESTIFY OR PRODUCE DOCUMENTS. 

/5/  IT IS IRONIC THAT APPELLANT SHOULD COMPLAIN OF THE OPEN NATURE
OF THE COMMISSION'S PROCEEDINGS.  THE STATUTORY REQUIREMENT THAT THE
COMMISSION "SHALL BASE ITS FINDINGS AND REPORTS ONLY UPON EVIDENCE AND
TESTIMONY GIVEN AT PUBLIC HEARINGS," LA. REV. STAT. ANN. SEC. 23:880.12
A (SUPP. 1969), IS PLAINLY DESIGNED TO PROTECT WITNESSES AND PERSONS
UNDER INVESTIGATION FROM WHAT SOME MEMBERS OF THE COURT HAVE CRITICIZED
AS SECRET INQUISITIONS OR STAR CHAMBER PROCEEDINGS.  SEE IN RE GROBAN,
352 U.S. 330, 337 (1957) (BLACK, J., DISSENTING); ANONYMOUS V. BAKER,
360 U.S. 287, 298 (1959) (BLACK, J., DISSENTING).     J. MINOS SIMON
ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

ASHTON L. STEWART, SPECIAL ASSISTANT ATTORNEY GENERAL OF LOUISIANA,
ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WAS JACK P. F.
GREMILLION, ATTORNEY GENERAL. 
..END :








BRANDENBURG V. OHIO, 395 U.S. 444 


       BRANDENBURG V. OHIO. 

        APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 492.  ARGUED FEBRUARY 27, 1969.-- DECIDED JUNE 9,
1969. 


APPELLANT, A KU KLUX KLAN LEADER, WAS CONVICTED UNDER THE OHIO
CRIMINAL SYNDICALISM STATUTE FOR "ADVOCATING) . . . THE DUTY,
NECESSITY, OR PROPRIETY OF CRIME, SABOTAGE, VIOLENCE, OR UNLAWFUL
METHODS OF TERRORISM AS A MEANS OF ACCOMPLISHING INDUSTRIAL OR
POLITICAL REFORM" AND FOR "VOLUNTARILY ASSEMBLING) WITH ANY SOCIETY,
GROUP OR ASSEMBLAGE OF PERSONS FORMED TO TEACH OR ADVOCATE THE
DOCTRINES OF CRIMINAL SYNDICALISM."  NEITHER THE INDICTMENT NOR THE
TRIAL JUDGE'S INSTRUCTIONS REFINED THE STATUTE'S DEFINITION OF THE
CRIME IN TERMS OF MERE ADVOCACY NOT DISTINGUISHED FROM INCITEMENT TO
IMMINENT LAWLESS ACTION.  HELD:  SINCE THE STATUTE, BY ITS WORDS AND AS
APPLIED, PURPORTS TO PUNISH MERE ADVOCACY AND TO FORBID, ON PAIN OF
CRIMINAL PUNISHMENT, ASSEMBLY WITH OTHERS MERELY TO ADVOCATE THE
DESCRIBED TYPE OF ACTION, IT FALLS WITHIN THE CONDEMNATION OF THE FIRST
AND FOURTEENTH AMENDMENTS.  FREEDOMS OF SPEECH AND PRESS DO NOT PERMIT
A STATE TO FORBID ADVOCACY OF THE USE OF FORCE OR OF LAW VIOLATION
EXCEPT WHERE SUCH ADVOCACY IS DIRECTED TO INCITING OR PRODUCING
IMMINENT LAWLESS ACTION AND IS LIKELY TO INCITE OR PRODUCE SUCH
ACTION.  WHITNEY V. CALIFORNIA, 274 U.S. 357, OVERRULED. 

REVERSED. 

PER CURIAM. 

THE APPELLANT, A LEADER OF A KU KLUX KLAN GROUP, WAS CONVICTED UNDER
THE OHIO CRIMINAL SYNDICALISM STATUTE FOR "ADVOCATING) . . . THE DUTY,
NECESSITY, OR PROPRIETY OF CRIME, SABOTAGE, VIOLENCE, OR UNLAWFUL
METHODS OF TERRORISM AS A MEANS OF ACCOMPLISHING INDUSTRIAL OR
POLITICAL REFORM" AND FOR "VOLUNTARILY ASSEMBLING) WITH ANY SOCIETY,
GROUP, OR ASSEMBLAGE OF PERSONS FORMED TO TEACH OR ADVOCATE THE
DOCTRINES OF CRIMINAL SYNDICALISM."  OHIO REV. CODE ANN. SEC. 2923.13. 
HE WAS FINED $1,000 AND SENTENCED TO ONE TO 10 YEARS' IMPRISONMENT. 
THE APPELLANT CHALLENGED THE CONSTITUTIONALITY OF THE CRIMINAL
SYNDICALISM STATUTE UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, BUT THE INTERMEDIATE COURT OF OHIO AFFIRMED
HIS CONVICTION WITHOUT OPINION.  THE SUPREME COURT OF OHIO DISMISSED
HIS APPEAL, SUA SPONTE, "FOR THE REASON THAT NO SUBSTANTIAL
CONSTITUTIONAL QUESTION EXISTS HEREIN."  IT DID NOT FILE AN OPINION OR
EXPLAIN ITS CONCLUSIONS.  APPEAL WAS TAKEN TO THIS COURT, AND WE NOTED
PROBABLE JURISDICTION.  393 U.S. 948 (1968).  WE REVERSE. 

THE RECORD SHOWS THAT A MAN, IDENTIFIED AT TRIAL AS THE APPELLANT,
TELEPHONED AN ANNOUNCER-REPORTER ON THE STAFF OF A CINCINNATI
TELEVISION STATION AND INVITED HIM TO COME TO A KU KLUX KLAN "RALLY" TO
BE HELD AT A FARM IN HAMILTON COUNTY.  WITH THE COOPERATION OF THE
ORGANIZERS, THE REPORTER AND A CAMERAMAN ATTENDED THE MEETING AND
FILMED THE EVENTS.  PORTIONS OF THE FILMS WERE LATER BROADCAST ON THE
LOCAL STATION AND ON A NATIONAL NETWORK. 

THE PROSECUTION'S CASE RESTED ON THE FILMS AND ON TESTIMONY
IDENTIFYING THE APPELLANT AS THE PERSON WHO COMMUNICATED WITH THE
REPORTER AND WHO SPOKE AT THE RALLY.  THE STATE ALSO INTRODUCED INTO
EVIDENCE SEVERAL ARTICLES APPEARING IN THE FILM, INCLUDING A PISTOL, A
RIFLE, A SHOTGUN, AMMUNITION, A BIBLE, AND A RED HOOD WORN BY THE
SPEAKER IN THE FILMS. 

ONE FILM SHOWED 12 HOODED FIGURES, SOME OF WHOM CARRIED FIREARMS. 
THEY WERE GATHERED AROUND A LARGE WOODEN CROSS, WHICH THEY BURNED.  NO
ONE WAS PRESENT OTHER THAN THE PARTICIPANTS AND THE NEWSMEN WHO MADE
THE FILM.  MOST OF THE WORDS UTTERED DURING THE SCENE WERE
INCOMPREHENSIBLE WHEN THE FILM WAS PROJECTED, BUT SCATTERED PHRASES
COULD BE UNDERSTOOD THAT WERE DEROGATORY OF NEGROES AND, IN ONE
INSTANCE, OF JEWS.  /1/  ANOTHER SCENE ON THE SAME FILM SHOWED THE
APPELLANT, IN KLAN REGALIA, MAKING A SPEECH.  THE SPEECH, IN FULL, WAS
AS FOLLOWS: 

     "THIS IS AN ORGANIZERS' MEETING.  WE HAVE HAD QUITE A FEW

  MEMBERS HERE TODAY WHICH ARE-- WE HAVE HUNDREDS, HUNDREDS OF

  MEMBERS THROUGHOUT THE STATE OF OHIO.  I CAN QUOTE FROM A

  NEWSPAPER CLIPPING FROM THE COLUMBUS, OHIO DISPATCH, FIVE WEEKS

  AGO SUNDAY MORNING.  THE KLAN HAS MORE MEMBERS IN THE STATE OF

  OHIO THAN DOES ANY OTHER ORGANIZATION.  WE'RE NOT A REVENGENT

  ORGANIZATION, BUT IF OUR PRESIDENT, OUR CONGRESS, OUR SUPREME

  COURT, CONTINUES TO SUPPRESS THE WHITE, CAUCASIAN RACE, IT'S

  POSSIBLE THAT THERE MIGHT HAVE TO BE SOME REVENGEANCE TAKEN. 

"WE ARE MARCHING ON CONGRESS JULY THE FOURTH, FOUR HUNDRED

THOUSAND STRONG.  FROM THERE WE ARE DIVIDING INTO TWO GROUPS, ONE

  GROUP TO MARCH ON ST. AUGUSTINE, FLORIDA, THE OTHER GROUP TO

  MARCH INTO MISSISSIPPI.  THANK YOU." 

THE SECOND FILM SHOWED SIX HOODED FIGURES ONE OF WHOM, LATER
IDENTIFIED AS THE APPELLANT, REPEATED A SPEECH VERY SIMILAR TO THAT
RECORDED ON THE FIRST FILM.  THE REFERENCE TO THE POSSIBILITY OF
"REVENGEANCE" WAS OMITTED, AND ONE SENTENCE WAS ADDED:  "PERSONALLY, I
BELIEVE THE NIGGER SHOULD BE RETURNED TO AFRICA, THE JEW RETURNED TO
ISRAEL."  THOUGH SOME OF THE FIGURES IN THE FILMS CARRIED WEAPONS, THE
SPEAKER DID NOT. 

THE OHIO CRIMINAL SYNDICALISM STATUTE WAS ENACTED IN 1919.  FROM
1917 TO 1920, IDENTICAL OR QUITE SIMILAR LAWS WERE ADOPTED BY 20 STATES
AND TWO TERRITORIES.  E. DOWELL, A HISTORY OF CRIMINAL SYNDICALISM
LEGISLATION IN THE UNITED STATES 21 (1939).  IN 1927, THIS COURT
SUSTAINED THE CONSTITUTIONALITY OF CALIFORNIA'S CRIMINAL SYNDICALISM
ACT, CAL. PENAL CODE SECS. 11400-11402, THE TEXT OF WHICH IS QUITE
SIMILAR TO THAT OF THE LAWS OF OHIO.  WHITNEY V. CALIFORNIA, 274 U.S.
357 (1927).  THE COURT UPHELD THE STATUTE ON THE GROUND THAT, WITHOUT
MORE, "ADVOCATING" VIOLENT MEANS TO EFFECT POLITICAL AND ECONOMIC
CHANGE INVOLVES SUCH DANGER TO THE SECURITY OF THE STATE THAT THE STATE
MAY OUTLAW IT.  CF. FISKE V. KANSAS, 274 U.S. 380 (1927).  BUT WHITNEY
HAS BEEN THOROUGHLY DISCREDITED BY LATER DECISIONS.  SEE DENNIS V.
UNITED STATES, 341 U.S. 494, AT 507 (1951).  THESE LATER DECISIONS HAVE
FASHIONED THE PRINCIPLE THAT THE CONSTITUTIONAL GUARANTEES OF FREE
SPEECH AND FREE PRESS DO NOT PERMIT A STATE TO FORBID OR PROSCRIBE
ADVOCACY OF THE USE OF FORCE OR OF LAW VIOLATION EXCEPT WHERE SUCH
ADVOCACY IS DIRECTED TO INCITING OR PRODUCING IMMINENT LAWLESS ACTION
AND IS LIKELY TO INCITE OR PRODUCE SUCH ACTION.  /2/  AS WE SAID IN
NOTO V. UNITED STATES, 367 U.S. 290, 297-298 (1961), "THE MERE ABSTRACT
TEACHING . . . OF THE MORAL PROPRIETY OR EVEN MORAL NECESSITY FOR A
RESORT TO FORCE AND VIOLENCE, IS NOT THE SAME AS PREPARING A GROUP FOR
VIOLENT ACTION AND STEELING IT TO SUCH ACTION."  SEE ALSO HERNDON V.
LOWRY, 301 U.S. 242, 259-261 (1937); BOND V. FLOYD, 385 U.S. 116, 134
(1966).  A STATUTE WHICH FAILS TO DRAW THIS DISTINCTION IMPERMISSIBLY
INTRUDES UPON THE FREEDOMS GUARANTEED BY THE FIRST AND FOURTEENTH
AMENDMENTS.  IT SWEEPS WITHIN ITS CONDEMNATION SPEECH WHICH OUR
CONSTITUTION HAS IMMUNIZED FROM GOVERMENTAL CONTROL.  CF. YATES V.
UNITED STATES, 354 U.S. 298 (1957); DEJONGE V. OREGON, 299 U.S. 353
(1937); STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931).  SEE ALSO UNITED
STATES V. ROBEL, 389 U.S. 258 (1967); KEYISHIAN V. BOARD OF REGENTS,
385 U.S. 589 (1967); ELFBRANDT V. RUSSELL, 384 U.S. 11 (1966); APTHEKER
V. SECRETARY OF STATE, 378 U.S. 500 (1964); BAGGETT V. BULLITT, 377
U.S. 360 (1964). 

MEASURED BY THIS TEST, OHIO'S CRIMINAL SYNDICALISM ACT CANNOT BE
SUSTAINED.  THE ACT PUNISHES PERSONS WHO "ADVOCATE OR TEACH THE DUTY,
NECESSITY, OR PROPRIETY" OF VIOLENCE "AS A MEANS OF ACCOMPLISHING
INDUSTRIAL OR POLITICAL REFORM"; OR WHO PUBLISH OR CIRCULATE OR DISPLAY
ANY BOOK OR PAPER CONTAINING SUCH ADVOCACY; OR WHO "JUSTIFY" THE
COMMISSION OF VIOLENT ACTS "WITH INTENT TO EXEMPLIFY, SPREAD OR
ADVOCATE THE PROPRIETY OF THE DOCTRINES OF CRIMINAL SYNDICALISM"; OR
WHO "VOLUNTARILY ASSEMBLE" WITH A GROUP FORMED "TO TEACH OR ADVOCATE
THE DOCTRINES OF CRIMINAL SYNDICALISM."  NEITHER THE INDICTMENT NOR THE
TRIAL JUDGE'S INSTRUCTIONS TO THE JURY IN ANY WAY REFINED THE STATUTE'S
BALD DEFINITION OF THE CRIME IN TERMS OF MERE ADVOCACY NOT
DISTINGUISHED FROM INCITEMENT TO IMMINENT LAWLESS ACTION.  /3/ 

ACCORDINGLY, WE ARE HERE CONFRONTED WITH A STATUTE WHICH, BY ITS OWN
WORDS AND AS APPLIED, PURPORTS TO PUNISH MERE ADVOCACY AND TO FORBID,
ON PAIN OF CRIMINAL PUNISHMENT, ASSEMBLY WITH OTHERS MERELY TO ADVOCATE
THE DESCRIBED TYPE OF ACTION.  /4/  SUCH A STATUTE FALLS WITHIN THE
CONDEMNATION OF THE FIRST AND FOURTEENTH AMENDMENTS.  THE CONTRARY
TEACHING OF WHITNEY V. CALIFORNIA, SUPRA, CANNOT BE SUPPORTED, AND THAT
DECISION IS THEREFORE OVERRULED. 

              REVERSED. 

/1/  THE SIGNIFICANT PORTIONS THAT COULD BE UNDERSTOOD WERE: 

"HOW FAR IS THE NIGGER GOING TO-- YEAH." 

"THIS IS WHAT WE ARE GOING TO DO TO THE NIGGERS." 

"A DIRTY NIGGER." 

"SEND THE JEWS BACK TO ISRAEL." 

"LET'S GIVE THEM BACK TO THE DARK GARDEN." 

"SAVE AMERICA." 

"LET'S GO BACK TO CONSTITUTIONAL BETTERMENT." 

"BURY THE NIGGERS." 

"WE INTEND TO DO OUR PART." 

"GIVE US OUR STATE RIGHTS." 

"FREEDOM FOR THE WHITES." 

"NIGGER WILL HAVE TO FIGHT FOR EVERY INCH HE GETS FROM NOW ON." 

/2/  IT WAS ON THE THEORY THAT THE SMITH ACT, 54 STAT. 670, 18
U.S.C. 2385, EMBODIED SUCH A PRINCIPLE AND THAT IT HAD BEEN APPLIED
ONLY IN CONFORMITY WITH IT THAT THIS COURT SUSTAINED THE ACT'S
CONSTITUTIONALITY.  DENNIS V. UNITED STATES, 341 U.S. 494 (1951).  THAT
THIS WAS THE BASIS FOR DENNIS WAS EMPHASIZED IN YATES V. UNITED STATES,
354 U.S. 298, 320-324 (1957), IN WHICH THE COURT OVERTURNED CONVICTIONS
FOR ADVOCACY OF THE FORCIBLE OVERTHROW OF THE GOVERNMENT UNDER THE
SMITH ACT, BECAUSE THE TRIAL JUDGE'S INSTRUCTIONS HAD ALLOWED
CONVICTION FOR MERE ADVOCACY, UNRELATED TO ITS TENDENCY TO PRODUCE
FORCIBLE ACTION. 

/3/  THE FIRST COUNT OF THE INDICTMENT CHARGED THAT APPELLANT "DID
UNLAWFULLY BY WORD OF MOUTH ADVOCATE THE NECESSITY, OR PROPRIETY OF
CRIME, VIOLENCE, OR UNLAWFUL METHODS OF TERRORISM AS A MEANS OF
ACCOMPLISHING POLITICIAL REFORM . . . ."  THE SECOND COUNT CHARGED THAT
APPELLANT "DID UNLAWFULLY VOLUNTARILY ASSEMBLE WITH A GROUP OR
ASSEMBLAGE OF PERSONS FORMED TO ADVOCATE THE DOCTRINES OF CRIMINAL
SYNDICALISM . . . ."  THE TRIAL JUDGE'S CHARGE MERELY FOLLOWED THE
LANGUAGE OF THE INDICTMENT.  NO CONSTRUCTION OF THE STATUTE BY THE OHIO
COURTS HAS BROUGHT IT WITHIN CONSTITUTIONALLY PERMISSIBLE LIMITS.  THE
OHIO SUPREME COURT HAS CONSIDERED THE STATUTE IN ONLY ONE PREVIOUS
CASE, STATE V. KASSAY, 126 OHIO ST. 177, 184 N.E. 521 (1932), WHERE THE
CONSTITUTIONALITY OF THE STATUTE WAS SUSTAINED. 

/4/  STATUTES AFFECTING THE RIGHT OF ASSEMBLY, LIKE THOSE TOUCHING
ON FREEDOM OF SPEECH, MUST OBSERVE THE ESTABLISHED DISTINCTIONS BETWEEN
MERE ADVOCACY AND INCITEMENT TO IMMINENT LAWLESS ACTION, FOR AS CHIEF
JUSTICE HUGHES WROTE IN DEJONGE V. OREGON, SUPRA, AT 364:  "THE RIGHT
OF PEACEABLE ASSEMBLY IS A RIGHT COGNATE TO THOSE OF FREE SPEECH AND
FREE PRESS AND IS EQUALLY FUNDAMENTAL."  SEE ALSO UNITED STATES V.
CRUIKSHANK, 92 U.S. 542, 552 (1876); HAGUE V. CIO, 307 U.S. 496, 513,
519 (1939); NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S. 449, 460-461
(1958). 

MR. JUSTICE BLACK, CONCURRING. 

I AGREE WITH THE VIEWS EXPRESSED BY MR. JUSTICE DOUGLAS IN HIS
CONCURRING OPINION IN THIS CASE THAT THE "CLEAR AND PRESENT DANGER"
DOCTRINE SHOULD HAVE NO PLACE IN THE INTERPRETATION OF THE FIRST
AMENDMENT.  I JOIN THE COURT'S OPINION, WHICH, AS I UNDERSTAND IT,
SIMPLY CITES DENNIS V. UNITED STATES, 341 U.S. 494 (1951), BUT DOES NOT
INDICATE ANY AGREEMENT ON THE COURT'S PART WITH THE "CLEAR AND PRESENT
DANGER"  DOCTRINE ON WHICH DENNIS PURPORTED TO RELY. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I DESIRE TO ENTER A CAVEAT. 

THE "CLEAR AND PRESENT DANGER" TEST WAS ADUMBRATED BY MR. JUSTICE
HOLMES IN A CASE ARISING DURING WORLD WAR I-- A WAR "DECLARED" BY THE
CONGRESS, NOT BY THE CHIEF EXECUTIVE.  THE CASE WAS SCHENCK V. UNITED
STATES, 249 U.S. 47, 52, WHERE THE DEFENDANT WAS CHARGED WITH ATTEMPTS
TO CAUSE INSUBORDINATION IN THE MILITARY AND OBSTRUCTION OF
ENLISTMENT.  THE PAMPHLETS THAT WERE DISTRIBUTED URGED RESISTANCE TO
THE DRAFT, DENOUNCED CONSCRIPTION, AND IMPUGNED THE MOTIVES OF THOSE
BACKING THE WAR EFFORT.  THE FIRST AMENDMENT WAS TENDERED AS A
DEFENSE.  MR. JUSTICE HOLMES IN REJECTING THAT DEFENSE SAID: 

"THE QUESTION IN EVERY CASE IS WHETHER THE WORDS USED ARE USED IN
SUCH CIRCUMSTANCES AND ARE OF SUCH A NATURE AS TO CREATE A CLEAR AND
PRESENT DANGER THAT THEY WILL BRING ABOUT THE SUBSTANTIVE EVILS THAT
CONGRESS HAS A RIGHT TO PREVENT.  IT IS A QUESTION OF PROXIMITY AND
DEGREE." 

FROHWERK V. UNITED STATES, 249 U.S. 204, ALSO AUTHORED BY MR.
JUSTICE HOLMES, INVOLVED PROSECUTION AND PUNISHMENT FOR PUBLICATION OF
ARTICLES VERY CRITICAL OF THE WAR EFFORT IN WORLD WAR I.  SCHENCK WAS
REFERRED TO AS A CONVICTION FOR OBSTRUCTING SECURITY "BY WORDS OF
PERSUASION."  ID., AT 206.  AND THE CONVICTION IN FROHWERK WAS
SUSTAINED BECAUSE "THE CIRCULATION OF THE PAPER WAS IN QUARTERS WHERE A
LITTLE BREATH WOULD BE ENOUGH TO KINDLE A FLAME."  ID., AT 209. 

DEBS V. UNITED STATES, 249 U.S. 211, WAS THE THIRD OF THE TRILOGY OF
THE 1918 TERM.  DEBS WAS CONVICTED OF SPEAKING IN OPPOSITION TO THE WAR
WHERE HIS "OPPOSITION WAS SO EXPRESSED THAT ITS NATURAL AND INTENDED
EFFECT WOULD BE TO OBSTRUCT RECRUITING."  ID., AT 215. 

"IF THAT WAS INTENDED AND IF, IN ALL THE CIRCUMSTANCES, THAT WOULD
BE ITS PROBABLE EFFECT, IT WOULD NOT BE PROTECTED BY REASON OF ITS
BEING PART OF A GENERAL PROGRAM AND EXPRESSIONS OF A GENERAL AND
CONSCIENTIOUS BELIEF."  IBID. 

IN THE 1919 TERM, THE COURT APPLIED THE SCHENCK DOCTRINE TO AFFIRM
THE CONVICTIONS OF OTHER DISSIDENTS IN WORLD WAR I. ABRAMS V. UNITED
STATES, 250 U.S. 616, WAS ONE INSTANCE.  MR. JUSTICE HOLMES, WITH WHOM
MR. JUSTICE BRANDEIS CONCURRED, DISSENTED.  WHILE ADHERING TO SCHENCK,
HE DID NOT THINK THAT ON THE FACTS A CASE FOR OVERRIDING THE FIRST
AMENDMENT HAD BEEN MADE OUT: 

"IT IS ONLY THE PRESENT DANGER OF IMMEDIATE EVIL OR AN INTENT TO
BRING IT ABOUT THAT WARRANTS CONGRESS IN SETTING A LIMIT TO THE
EXPRESSION OF OPINION WHERE PRIVATE RIGHTS ARE NOT CONCERNED.  CONGRESS
CERTAINLY CANNOT FORBID ALL EFFORT TO CHANGE THE MIND OF THE COUNTRY." 
ID., AT 628. 

ANOTHER INSTANCE WAS SCHAEFER V. UNITED STATES, 251 U.S. 466, IN
WHICH MR. JUSTICE BRANDEIS, JOINED BY MR. JUSTICE HOLMES, DISSENTED.  A
THIRD WAS PIERCE V. UNITED STATES, 252 U.S. 239, IN WHICH AGAIN MR.
JUSTICE BRANDEIS, JOINED BY MR. JUSTICE HOLMES, DISSENTED.     THOSE,
THEN, WERE THE WORLD WAR I CASES THAT PUT THE GLOSS OF "CLEAR AND
PRESENT DANGER" ON THE FIRST AMENDMENT.  WHETHER THE WAR POWER-- THE
GREATEST LEVELER OF THEM ALL-- IS ADEQUATE TO SUSTAIN THAT DOCTRINE IS
DEBATABLE.  THE DISSENTS IN ABRAMS, SCHAEFER, AND PIERCE SHOW HOW
EASILY "CLEAR AND PRESENT DANGER" IS MANIPULATED TO CRUSH WHAT BRANDEIS
CALLED "(THE FUNDAMENTAL RIGHT OF FREE MEN TO STRIVE FOR BETTER
CONDITIONS THROUGH NEW LEGISLATION AND NEW INSTITUTIONS" BY ARGUMENT
AND DISCOURSE (PIERCE V. UNITED STATES, SUPRA, AT 273) EVEN IN TIME OF
WAR.  THOUGH I DOUBT IF THE "CLEAR AND PRESENT DANGER" TEST IS
CONGENIAL TO THE FIRST AMENDMENT IN TIME OF A DECLARED WAR, I AM
CERTAIN IT IS NOT RECONCILABLE WITH THE FIRST AMENDMENT IN DAYS OF
PEACE.     THE COURT QUITE PROPERLY OVERRULES WHITNEY V. CALIFORNIA,
274 U.S. 357, WHICH INVOLVED ADVOCACY OF IDEAS WHICH THE MAJORITY OF
THE COURT DEEMED UNSOUND AND DANGEROUS. 

MR. JUSTICE HOLMES, THOUGH NEVER FORMALLY ABANDONING THE "CLEAR AND
PRESENT DANGER" TEST, MOVED CLOSER TO THE FIRST AMENDMENT IDEAL WHEN HE
SAID IN DISSENT IN GITLOW V. NEW YORK, 268 U.S. 652, 673: 

"EVERY IDEA IS AN INCITEMENT.  IT OFFERS ITSELF FOR BELIEF AND IF
BELIEVED IT IS ACTED ON UNLESS SOME OTHER BELIEF OUTWEIGHS IT OR SOME
FAILURE OF ENERGY STIFLES THE MOVEMENT AT ITS BIRTH.  THE ONLY
DIFFERENCE BETWEEN THE EXPRESSION OF AN OPINION AND AN INCITEMENT IN
THE NARROWER SENSE IS THE SPEAKER'S ENTHUSIASM FOR THE RESULT. 
ELOQUENCE MAY SET FIRE TO REASON.  BUT WHATEVER MAY BE THOUGHT OF THE
REDUNDANT DISCOURSE BEFORE US IT HAD NO CHANGE OF STARTING A PRESENT
CONFLAGRATION.  IF IN THE LONG RUN THE BELIEFS EXPRESSED IN PROLETARIAN
DICTATORSHIP ARE DESTINED TO BE ACCEPTED BY THE DOMINANT FORCES OF THE
COMMUNITY, THE ONLY MEANING OF FREE SPEECH IS THAT THEY SHOULD BE GIVEN
THEIR CHANCE AND HAVE THEIR WAY."  WE HAVE NEVER BEEN FAITHFUL TO THE
PHILOSOPHY OF THAT DISSENT. 

THE COURT IN HERDON V. LOWRY, 301 U.S. 242, OVERTURNED A CONVICTION
FOR EXERCISING FIRST AMENDMENT RIGHTS TO INCITE INSURRECTION BECAUSE OF
LACK OF EVIDENCE OF INCITEMENT.  ID., AT 259-261.  AND SEE HARTZEL V.
UNITED STATES, 322 U.S. 680.  IN BRIDGES V. CALIFORNIA, 314 U.S. 252,
261-263, WE APPROVED THE "CLEAR AND PRESENT DANGER" TEST IN AN
ELABORATE DICTUM THAT TIGHTENED IT AND CONFINED IT TO A NARROW
CATEGORY.  BUT IN DENNIS V. UNITED STATES, 341 U.S. 494, WE OPENED WIDE
THE DOOR, DISTORTING THE "CLEAR AND PRESENT DANGER" TEST BEYOND
RECOGNITION.  /1/ 

IN THAT CASE THE PROSECUTION DUBBED AN AGREEMENT TO TEACH THE
MARXIST CREED A "CONSPIRACY."  THE CASE WAS SUBMITTED TO A JURY ON A
CHARGE THAT THE JURY COULD NOT CONVICT UNLESS IT FOUND THAT THE
DEFENDANTS "INTENDED TO OVERTHROW THE GOVERNMENT 'AS SPEEDILY AS
CIRCUMSTANCES WOULD PERMIT.'"  ID., AT 509-511.  THE COURT SUSTAINED
CONVICTIONS UNDER THAT CHARGE, CONSTRUING IT TO MEAN A DETERMINATION OF
"'WHETHER THE GRAVITY OF THE "EVIL," DISCOUNTED BY ITS IMPROBABILITY,
JUSTIFIES SUCH INVASION OF FREE SPEECH AS IS NECESSARY TO AVOID THE
DANGER.'"  /2/  ID., AT 510, QUOTING FROM UNITED STATES V. DENNIS, 183
F.2D 201, 212. 

OUT OF THE "CLEAR AND PRESENT DANGER" TEST CAME OTHER OFFSPRING. 
ADVOCACY AND TEACHING OF FORCIBLE OVERTHROW OF GOVERNMENT AS AN
ABSTRACT PRINCIPLE IS IMMUNE FROM PROSECUTION.  YATES V. UNITED STATES,
354 U.S. 298, 318.  BUT AN "ACTIVE" MEMBER, WHO HAS A GUILTY KNOWLEDGE
AND INTENT OF THE AIM TO OVERTHROW THE GOVERNMENT BY VIOLENCE, NOTO V.
UNITED STATES, 367 U.S. 290, MAY BE PROSECUTED.  SCALES V. UNITED
STATES, 367 U.S. 203, 228.  AND THE POWER TO INVESTIGATE, BACKED BY THE
POWERFUL SANCTION OF CONTEMPT, INCLUDES THE POWER TO DETERMINE WHICH OF
THE TWO CATEGORIES FITS THE PARTICULAR WITNESS.  BARENBLATT V. UNITED
STATES, 360 U.S. 109, 130.  AND SO THE INVESTIGATOR ROAMS AT WILL
THROUGH ALL OF THE BELIEFS OF THE WITNESS, RANSACKING HIS CONSCIENCE
AND HIS INNERMOST THOUGHTS. 

JUDGE LEARNED HAND, WHO WROTE FOR THE COURT OF APPEALS IN AFFIRMING
THE JUDGMENT IN DENNIS, COINED THE "NOT IMPROBABLE" TEST, 183 F.2D 201,
214, WHICH THIS COURT ADOPTED AND WHICH JUDGE HAND PREFERRED OVER THE
"CLEAR AND PRESENT DANGER" TEST.  INDEED, IN HIS BOOK, THE BILL OF
RIGHTS 59 (1958), IN REFERRING TO HOLMES' CREATION OF THE "CLEAR AND
PRESENT DANGER" TEST, HE SAID, "I CANNOT HELP THINKING THAT FOR ONCE
HOMER NODDED." 

MY OWN VIEW IS QUITE DIFFERENT.  I SEE NO PLACE IN THE REGIME OF THE
FIRST AMENDMENT FOR ANY "CLEAR AND PRESENT DANGER" TEST, WHETHER STRICT
AND TIGHT AS SOME WOULD MAKE IT, OR FREE-WHEELING AS THE COURT IN
DENNIS REPHRASED IT. 

WHEN ONE READS THE OPINIONS CLOSELY AND SEES WHEN AND HOW THE "CLEAR
AND PRESENT DANGER" TEST HAS BEEN APPLIED, GREAT MISGIVINGS ARE
AROUSED.  FIRST, THE THREATS WERE OFTEN LOUD BUT ALWAYS PUNY AND MADE
SERIOUS ONLY BY JUDGES SO WEDDED TO THE STATUS QUO THAT CRITICAL
ANALYSIS MADE THEM NERVOUS.  SECOND, THE TEST WAS SO TWISTED AND
PERVERTED IN DENNIS AS TO MAKE THE TRIAL OF THOSE TEACHERS OF MARXISM
AN ALL-OUT POLITICAL TRIAL WHICH WAS PART AND PARCEL OF THE COLD WAR
THAT HAS ERODED SUBSTANTIAL PARTS OF THE FIRST AMENDMENT. 

ACTION IS OFTEN A METHOD OF EXPRESSION AND WITHIN THE PROTECTION OF
THE FIRST AMENDMENT. 

SUPPOSE ONE TEARS UP HIS OWN COPY OF THE CONSTITUTION IN ELOQUENT
PROTEST TO A DECISION OF THIS COURT.  MAY HE BE INDICTED? 

SUPPOSE ONE RIPS HIS OWN BIBLE TO SHREDS TO CELEBRATE HIS DEPARTURE
FROM ONE "FAITH" AND HIS EMBRACE OF ATHEISM.  MAY HE BE INDICTED? 

LAST TERM THE COURT HELD IN UNITED STATES V. O'BRIEN, 391 U.S. 367,
382, THAT A REGISTRANT UNDER SELECTIVE SERVICE WHO BURNED HIS DRAFT
CARD IN PROTEST OF THE WAR IN VIETNAM COULD BE PROSECUTED.  THE FIRST
AMENDMENT WAS TENDERED AS A DEFENSE AND REJECTED, THE COURT SAYING: 

"THE ISSUANCE OF CERTIFICATES INDICATING THE REGISTRATION AND
ELIGIBILITY CLASSIFICATION OF INDIVIDUALS IS A LEGITIMATE AND
SUBSTANTIAL ADMINISTRATIVE AID IN THE FUNCTIONING OF THIS SYSTEM.  AND
LEGISLATION TO INSURE THE CONTINUING AVAILABILITY OF ISSUED
CERTIFICATES SERVES A LEGITIMATE AND SUBSTANTIAL PURPOSE IN THE
SYSTEM'S ADMINISTRATION."  391 U.S.,AT 377-378. 

BUT O'BRIEN WAS NOT PROSECUTED FOR NOT HAVING HIS DRAFT CARD
AVAILABLE WHEN ASKED FOR BY A FEDERAL AGENT.  HE WAS INDICTED, TRIED,
AND CONVICTED FOR BURNING THE CARD.  AND THIS COURT'S AFFIRMANCE OF
THAT CONVICTION WAS NOT, WITH ALL RESPECT, CONSISTENT WITH THE FIRST
AMENDMENT. 

THE ACT OF PRAYING OFTEN INVOLVES BODY POSTURE AND MOVEMENT AS WELL
AS UTTERANCES.  IT IS NONETHELESS PROTECTED BY THE FREE EXERCISE
CLAUSE.  PICKETING, AS WE HAVE SAID ON NUMEROUS OCCASIONS, IS "FREE
SPEECH PLUS."  SEE BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769, 775
(DOUGLAS, J., CONCURRING); GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490,
501; HUGHES V. SUPERIOR COURT, 339 U.S. 460, 465; LABOR BOARD V. FRUIT
PACKERS, 377 U.S. 58, 77 (BLACK, J., CONCURRING), AND ID., AT 93
(HARLAN, J., DISSENTING); COX V. LOUISIANA, 379 U.S. 559, 578 (OPINION
OF BLACK, J.); FOOD EMPLOYEES V. LOGAN PLAZA, 391 U.S. 308, 326
(DOUGLAS, J., CONCURRING).  THAT MEANS THAT IT CAN BE REGULATED WHEN IT
COMES TO THE "PLUS" OR "ACTION" SIDE OF THE PROTEST.  IT CAN BE
REGULATED AS TO THE NUMBER OF PICKETS AND THE PLACE AND HOURS (SEE COX
V. LOUISIANA, SUPRA), BECAUSE TRAFFIC AND OTHER COMMUNITY PROBLEMS
WOULD OTHERWISE SUFFER. 

BUT NONE OF THESE CONSIDERATIONS ARE IMPLICATED IN THE SYMBOLIC
PROTEST OF THE VIETNAM WAR IN THE BURNING OF A DRAFT CARD. 

ONE'S BELIEFS HAVE LONG BEEN THOUGHT TO BE SANCTUARIES WHICH
GOVERNMENT COULD NOT INVADE.  BARENBLATT IS ONE EXAMPLE OF THE EASE
WITH WHICH THAT SANCTUARY CAN BE VIOLATED.  THE LINES DRAWN BY THE
COURT BETWEEN THE CRIMINAL ACT OF BEING AN "ACTIVE" COMMUNIST AND THE
INNOCENT ACT OF BEING A NOMINAL OR INACTIVE COMMUNIST MARK THE
DIFFERENCE ONLY BETWEEN DEEP AND ABIDING BELIEF AND CASUAL OR UNCERTAIN
BELIEF.  BUT I THINK THAT ALL MATTERS OF BELIEF ARE BEYOND THE REACH OF
SUBPOENAS OR THE PROBINGS OF INVESTIGATING COMMITTEES WERE NOTORIOUSLY
UNCONSTITUTIONAL.  THAT IS THE DEEP-SEATED FAULT IN THE INFAMOUS
LOYALTY-SECURITY HEARINGS WHICH, SINCE 1947 WHEN PRESIDENT TRUMAN
LAUNCHED THEM, HAVE PROCESSED 20,000,000 MEN AND WOMEN.  THOSE HEARINGS
WERE PRIMARILY CONCERNED WITH ONE'S THOUGHTS, IDEAS, BELIEFS, AND
CONVICTIONS.  THEY WERE THE MOST BLATANT VIOLATIONS OF THE FIRST
AMENDMENT WE HAVE EVER KNOWN. 

THE LINE BETWEEN WHAT IS PERMISSIBLE AND NOT SUBJECT TO CONTROL AND
WHAT MAY BE MADE IMPERMISSIBLE AND SUBJECT TO REGULATION IS THE LINE
BETWEEN IDEAS AND OVERT ACTS. 

THE EXAMPLE USUALLY GIVEN BY THOSE WHO WOULD PUNISH SPEECH IS THE
CASE OF ONE WHO FALSELY SHOUTS FIRE IN A CROWDED THEATRE. 

THIS IS, HOWEVER, A CLASSIC CASE WHERE SPEECH IS BRIGADED WITH
ACTION.  SEE SPEISER V. RANDALL, 357 U.S. 513, 536-537 (DOUGLAS, J.,
CONCURRING).  THEY ARE INDEED INSEPARABLE AND A PROSECUTION CAN BE
LAUNCHED FOR THE OVERT ACTS ACTUALLY CAUSED.  APART FROM RARE INSTANCES
OF THAT KIND, SPEECH IS, I THINK, IMMUNE FROM PROSECUTION.  CERTAINLY
THERE IS NO CONSTITUTIONAL LINE BETWEEN ADVOCACY OF ABSTRACT IDEAS AS
IN YATES AND ADVOCACY OF POLITICAL ACTION AS IN SCALES.  THE QUALITY OF
ADVOCACY TURNS ON THE DEPTH OF THE CONVICTION; AND GOVERNMENT HAS NO
POWER TO INVADE THAT SANCTUARY OF BELIEF AND CONSCIENCE.  /3/ 

/1/  SEE MCKAY, THE PREFERENCE FOR FREEDOM, 34 N.Y.U.L.REV.  1182,
1203-1212 (1959). 

/2/  SEE FEINER V. NEW YORK, 340 U.S. 315, WHERE A SPEAKER WAS
ARRESTED FOR AROUSING AN AUDIENCE WHEN THE ONLY "CLEAR AND PRESENT
DANGER" WAS THAT THE HECKLERS IN THE AUDIENCE WOULD BREAK UP THE
MEETING. 

/3/  SEE MR. JUSTICE BLACK, DISSENTING, IN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382, 446, 449 ET SEQ. 

ALLEN BROWN ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEFS
WERE NORMAN DORSE, MELVIN L. WULF, ELEANOR HOLMES NORTON, AND BERNARD
A. BERKMAN. 

LEONARD KIRSCHNER ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS MELVIN G. REUGER. 

PAUL W. BROWN, ATTORNEY GENERAL OF OHIO, PRO SE, AND LEO J. CONWAY,
ASSISTANT ATTORNEY GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL AS
AMICUS CURIAE. 
..END :















WILLIAMS V. OKLAHOMA CITY, 395 U.S. 458 


       WILLIAMS V. OKLAHOMA CITY ET AL.

        CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA. 

NO. 841.  ARGUED APRIL 1-2, 1969.-- DECIDED JUNE 9, 1969. 


THE DENIAL TO PETITIONER, AN INDIGENT WHO WAS CONVICTED OF DRUNKEN
DRIVING, OF A COPY AT PUBLIC EXPENSE OF THE TRIAL TRANSCRIPT WHICH HE
NEEDED TO PERFECT AN APPEAL, TO WHICH HE WAS ENTITLED "AS A MATTER OF
RIGHT" UNDER OKLAHOMA LAW, IS A VIOLATION OF THE FOURTEENTH AMENDMENT. 

439 P.2D 965, REVERSED AND REMANDED. 

PER CURIAM. 

PETITIONER, AN INDIGENT, HAD NO FUNDS TO PAY FOR A TRANSCRIPT OF THE
TRIAL PROCEEDINGS IN THE MUNICIPAL CRIMINAL COURT OF OKLAHOMA CITY
REQUIRED TO PREPARE THE "CASE-MADE" NEEDED TO PERFECT HIS APPEAL TO THE
OKLAHOMA COURT OF CRIMINAL APPEALS FROM HIS CONVICTION FOR DRUNKEN
DRIVING AND THE IMPOSITION OF A 90-DAY JAIL SENTENCE AND A $50 FINE. 
/1/  THE TRIAL PROCEEDINGS HAD BEEN STENOGRAPHICALLY TRANSCRIBED
PURSUANT TO OKLAHOMA LAW, OKLA. STAT. ANN., TIT. 11, SEC. 798 (1959),
OKL. STAT. ANN., TIT. 20, SECS. 110-111 (1962), BUT THE TRIAL COURT HAD
REFUSED IN THE ABSENCE OF STATUTORY AUTHORITY TO ORDER THAT A COPY BE
PROVIDED PETITIONER AT PUBLIC EXPENSE, ALTHOUGH FINDING THAT PETITIONER
WAS AN INDIGENT WHOSE GROUNDS OF APPEAL WERE NOT WITHOUT MERIT, AND
THAT NEITHER PETITIONER NOR HIS APPOINTED COUNSEL COULD MAKE UP A
TRANSCRIPT OF THE TRIAL PROCEEDINGS FROM MEMORY.  THE COURT OF CRIMINAL
APPEALS, IN AN ORIGINAL PROCEEDING BROUGHT BY PETITIONER, ALSO REFUSED
TO ORDER THAT PETITIONER BE PROVIDED A COPY AT PUBLIC EXPENSE.  THE
COURT AGREED WITH THE TRIAL COURT THAT NO OKLAHOMA STATUTE OR OKLAHOMA
CITY ORDINANCE AUTHORIZED SUCH AN ORDER, AND HELD FURTHER THE
FOURTEENTH AMENDMENT DID NOT MANDATE "THAT AN INDIGENT PERSON,
CONVICTED FOR A VIOLATION OF A CITY ORDINANCE, QUASI CRIMINAL IN NATURE
AND OFTEN REFERRED TO AS A PETTY OFFENSE, IS ENTITLED TO A CASE-MADE OR
TRANSCRIPT AT CITY EXPENSE IN ORDER TO PERFECT AN APPEAL FROM SAID
CONVICTION."  439 P.2D 965 (1968).  WE GRANTED CERTIORARI.  393 U.S.
998 (1968).  WE REVERSE. 

"THIS COURT HAS NEVER HELD THAT THE STATES ARE REQUIRED TO ESTABLISH
AVENUES OF APPELLANT REVIEW, BUT IT IS NOW FUNDAMENTAL THAT, ONCE
ESTABLISHED, THESE AVENUES MUST BE KEPT FREE OF UNREASONED DISTINCTIONS
THAT CAN ONLY IMPEDE OPEN AND EQUAL ACCESS TO THE COURTS.  GRIFFIN V.
ILLINOIS, 351 U.S. 12; DOUGLAS V. CALIFORNIA, 372 U.S. 353; LANE V.
BROWN, 372 U.S. 477; DRAPER V. WASHINGTON, 372 U.S. 487."  RINALDI V.
YEAGER, 384 U.S. 305, 310-311 (1966).  ALTHOUGH THE OKLAHOMA STATUTES
EXPRESSLY PROVIDE THAT "(AN APPEAL TO THE COURT OF CRIMINAL APPEALS MAY
BE TAKEN BY THE DEFENDANT, AS A MATTER OF RIGHT FROM ANY JUDGMENT
AGAINST HIM . . . ,"  OKLA. STAT. ANN., TIT. 22, SEC. 1051 (SUPP.
1968), THE DECISION OF THE COURT OF CRIMINAL APPEALS WHOLLY DENIES ANY
RIGHT OF APPEAL TO THIS IMPOVERISHED PETITIONER, BUT GRANTS THAT RIGHT
ONLY TO APPELLANTS FROM LIKE CONVICTIONS ABLE TO PAY FOR THE
PREPARATION OF A "CASE-MADE."  THIS IS AN "UNREASONED DISTINCTION"
WHICH THE FOURTEENTH AMENDMENT FORBIDS THE STATE TO MAKE.  SEE GRIFFIN
V. ILLINOIS, 351 U.S. 12 (1956); DRAPER V. WASHINGTON, 372 U.S. 487
(1963); ESKRIDGE V. WASHINGTON STATE BOARD, 357 U.S. 214 (1958). 

THE JUDGMENT OF THE COURT OF CRIMINAL APPEALS IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  THE PERTINENT OKLAHOMA STATUTES PROVIDE AS FOLLOWS:  OKLA.
STAT. ANN., TIT. 22, SEC. 1059 (1958): 

"IN ALL CRIMINAL CASES APPEALABLE TO THE CRIMINAL COURT OF APPEALS,
THE APPELLANT MAY PREPARE, AND IT SHALL BE THE DUTY OF THE COURT TO
PROVIDE FOR THE PREPARATION AND SETTLING OF A CASE-MADE IN ALL RESPECTS
AS IN CIVIL CASES, AND THE CASE-MADE SO SETTLED, SERVED AND FILED IN
THE TRIAL COURT MAY BE SENT TO THE APPELLANT COURT IN LIEU OF ALL OTHER
RECORDS OR BILLS OF EXCEPTION; OR THE PROCEEDING IN THE APPELLANT COURT
MAY BE AS PROVIDED IN THE NEXT SECTION."  OKLA.  STAT. ANN., TIT. 22,
SEC. 1060 (SUPP. 1968): 

"INSTEAD OF THE APPEAL HEREINBEFORE PROVIDED FOR, ANY PARTY DESIRING
TO APPEAL TO THE COURT OF CRIMINAL APPEALS IN ANY CRIMINAL CASE MAY
PROCEED BY CASE MADE AND PETITION IN ERROR BY FILING NOTICE OF SUCH
INTENT AND BY MAKING REQUEST FOR CASE MADE, BOTH TO BE MADE IN WRITING,
IN OPEN COURT, EITHER AT THE TIME THE JUDGMENT IS RENDERED, OR WITHIN
TEN DAYS THEREAFTER.  IN SUCH AN APPEAL THE CASE MADE MUST BE SETTLED
AND SERVED AND THE APPEAL LODGED WITHIN THE TIME FOR SUCH APPEAL AS
HEREINBEFORE SET OUT.  INSTEAD OF THE CASE MADE PLAINTIFF IN ERROR MAY
ATTACH TO HIS PETITION IN ERROR A TRANSCRIPT OF THE PROCEEDINGS OF
RECORD IN THE TRIAL COURT." 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

JON F. GRAY ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

GILES K. RATCLIFFE ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS ROY H. SEMTNER. 
..END :























MEEKER V. WALKER, 395 U.S. 461 


       MEEKER V. WALKER ET UX.

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
TENTH

CIRCUIT. 

        NO. 1293.  DECIDED JUNE 9, 1969. 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE JUDGMENT IS AFFIRMED. 
..END :












SORANNO V. UNITED STATES, 395 U.S. 461 


       SORANNO V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 838.  DECIDED JUNE 9, 1969. 


CERTIORARI GRANTED; 401 F.2D 534, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA FOR FURTHER CONSIDERATION IN
LIGHT OF MCKART V. UNITED STATES, ANTE, P. 185. 

J. B. TIETZ FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND LEONARD H. DICKSTEIN FOR THE UNITED STATES. 
..END :






JONES V. UNITED STATES, 395 U.S. 462 


       JONES V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 966, MISC.  DECIDED JUNE 9, 1969. 


CERTIORARI GRANTED; 400 F.2D 134, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA FOR FURTHER CONSIDERATION IN LIGHT OF ALDERMAN
V. UNITED STATES, 394 U.S. 165. 

EDWARD L. CRAGEN FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON,
JEROME M. FEIT, AND ROBERT G. MAYSACK FOR THE UNITED STATES. 
..END :





RAMM V. RAMM, 395 U.S. 462 


       RAMM V. RAMM. 

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 1294.  DECIDED JUNE 9, 1969. 


22 N.Y.2D 926, 242 N.E.2D 88, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

NORMAN RAMM, APPELLANT, PRO SE.
..END :














MCNEIL V. UNITED STATES, 395 U.S. 463 


       MCNEIL V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

        NO. 1048, MISC.  DECIDED JUNE 9, 1969. 


CERTIORARI GRANTED; 401 F.2D 527, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA FOR FURTHER CONSIDERATION IN LIGHT OF MCKART V.
UNITED STATES, ANTE, P. 185. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :








JENKINS V. DELAWARE, 395 U.S. 213 


       JENKINS V. DELAWARE. 

        CERTIORARI TO THE SUPREME COURT OF DELAWARE. 

        NO. 748.  ARGUED MARCH 5, 1969.-- DECIDED JUNE 2, 1969. 


THE STANDARDS WHICH THIS COURT ESTABLISHED IN MIRANDA V. ARIZONA, 384
U.S. 436, FOR DETERMINING THE ADMISSIBILITY INTO EVIDENCE OF IN-CUSTODY
STATEMENTS DO NOT APPLY TO PERSONS WHOSE RETRIALS HAVE COMMENCED AFTER
THE DATE OF THAT DECISION IF THEIR ORIGINAL TRIALS HAD BEGUN BEFORE
THAT DATE.  CF. JOHNSON V. NEW JERSEY, 384 U.S. 719.  PP. 213-222. 

. . . DEL. . . . , 240 A.2D 146, AFFIRMED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966), WE HELD THAT MIRANDA
V. ARIZONA, 384 U.S. 436 (1966), "APPLIES ONLY TO CASES IN WHICH THE
TRIAL BEGAN AFTER THE DATE OF OUR (MIRANDA) DECISION.  . . . "  384
U.S.,AT 721.  IN THIS CASE, WE MUST DECIDE WHETHER MIRANDA'S STANDARDS
FOR DETERMINING THE ADMISSIBILITY OF IN-CUSTODY STATEMENTS APPLY TO
POST-MIRANDA RETRIALS /1/  OF CASES ORIGINALLY TRIED PRIOR TO THAT
DECISION.  /2/  WE HOLD THAT THEY DO NOT. 

PETITIONER WAS ARRESTED ON THE MORNING OF MARCH 17, 1965, AS A
MURDER SUSPECT, AND WAS INTERROGATED ON THREE SEPARATE OCCASIONS, AT
11:30 A.M., 2:50 P.M., AND 7:05 P.M.  ALTHOUGH INDIGENT, HE WAS NOT
ADVISED THAT HE HAD THE RIGHT TO HAVE AN ATTORNEY PRESENT AT THE
STATE'S EXPENSE.  APPROXIMATELY 10 MINUTES AFTER THE EVENING
INTERROGATION BEGAN, PETITIONER GAVE THE POLICE A STATEMENT IN WHICH HE
ADMITTED STRUGGLING WITH THE VICTIM DURING A BURGLARY THE PRECEDING
EVENING. 

PETITIONER'S FIRST TRIAL COMMENCED ON JANUARY 13, 1966.  HE DID NOT
TAKE THE STAND, BUT HIS INCRIMINATING STATEMENT WAS ADMITTED INTO
EVIDENCE.  THE JURY FOUND HIM GUILTY OF MURDER IN THE FIRST DEGREE AND
BURGLARY IN THE FOURTH DEGREE.  DISREGARDING THE JURY'S RECOMMENDATION,
THE TRIAL COURT SENTENCED HIM TO DEATH.  DURING THE PENDENCY OF
PETITIONER'S APPEAL TO THE SUPREME COURT OF DELAWARE, WE DECIDED
MIRANDA AND JOHNSON.  IN REVERSING PETITIONER'S CONVICTION ON VARIOUS
STATE GROUNDS, THE DELAWARE SUPREME COURT ALSO DETERMINED, SUA SPONTE,
THAT UNDER JOHNSON PETITIONER'S STATEMENT, WHICH WAS OBTAINED WITHOUT
FULLY ADVISING HIM OF HIS CONSTITUTIONAL RIGHTS, WOULD BE ADMISSIBLE AT
HIS RETRIAL.  . . . DEL. . . . , 230 A.2D 262 (1967).  IT REASONED THAT
THE RETRIAL WOULD BE A MERE CONTINUATION OF THE CASE ORIGINALLY
COMMENCED PRIOR TO OUR DECISION IN MIRANDA. 

PETITIONER'S SECOND TRIAL BEGAN ON OCTOBER 2, 1967.  HE WAS
CONVICTED OF SECOND DEGREE MURDER AND SENTENCED TO LIFE IMPRISONMENT. 
THE SUPREME COURT OF DELAWARE AFFIRMED, AGAIN REJECTING PETITIONER'S
ARGUMENT THAT UNDER JOHNSON HIS INCRIMINATING STATEMENT WAS
INADMISSIBLE AT HIS RETRIAL.  . . . DEL. . . . , 240 A.2D 146 (1968). 
BECAUSE OF A DISAGREEMENT AMONG STATE COURTS OVER THIS ISSUE, /3/  WE
GRANTED CERTIORARI.  393 U.S. 950 (1968).  FOR THE REASONS STATED
BELOW, WE AFFIRM. 

PETITIONER AND THE DECISIONS HE RELIES UPON /4/  EMPHASIZE OUR
REFERENCES IN JOHNSON TO "TRIALS" COMMENCED BEFORE THE DATE MIRANDA WAS
DECIDED AND OUR STATED CONCERN FOR THE RELIANCE PLACED ON PRE-MIRANDA
STANDARDS BY TRIAL COURTS AS WELL AS BY LAW ENFORCEMENT OFFICERS. 
PETITIONER ARGUES THAT THIS "STUDIED" FOCUS ON THE TRIAL PROCESS
INDICATES THAT WE INTENDED MIRANDA TO BE APPLIED TO RETRIALS, WHICH, HE
INSISTS, BEGIN THAT PROCESS ANEW.  AS DELAWARE CORRECTLY POINTS OUT,
HOWEVER, MORE THAN ONCE WE STATED OUR HOLDING IN JOHNSON IN TERMS OF
"CASES" COMMENCED BEFORE THE DATE OF MIRANDA.  SEE 384 U.S.,AT 733. 
DELAWARE AND THE AUTHORITIES IT RELIES UPON /5/  ARGUE THAT, SINCE THE
WORD "CASE" USUALLY INCORPORATES ALL THE JUDICIAL PROCEEDINGS AGAINST
AN ACCUSED, A RETRIAL IS NOT THE "COMMENCEMENT" OF A CASE.  DELAWARE
ALSO QUOTES OUR STATEMENT THAT ONLY "(FUTURE DEFENDANTS WILL BENEFIT
FULLY FROM OUR NEW STANDARDS GOVERNING IN-CUSTODY INTERROGATION, WHILE
PAST DEFENDANTS MAY STILL AVAIL THEMSELVES OF THE VOLUNTARINESS TEST." 
ID., AT 732.  DELAWARE SUGGESTS THAT PETITIONER, WHO WAS TRIED SIX
MONTHS BEFORE MIRANDA, CANNOT BE REGARDED AS A "FUTURE" DEFENDANT
WITHIN THE MEANING OF JOHNSON.  THAT THERE IS LANGUAGE IN JOHNSON
SUPPORTING THE POSITIONS OF BOTH PETITIONER AND RESPONDENT DEMONSTRATES
WHAT SOME COURTS AND COMMENTATORS HAVE READILY RECOGNIZED:  IN THAT
DECISION, WE DID NOT CONSIDER THE APPLICABILITY OF MIRANDA TO
RETRIALS.  /6/  THE ISSUE SIMPLY WAS NOT PRESENTED. 

PETITIONER BUTTRESSES HIS INTERPRETATION OF JOHNSON BY ARGUING THAT
MIRANDA MUST BE APPLIED TO RETRIALS IN ORDER TO INSURE THE UNIFORM
TREATMENT OF INDIVIDUALS SIMILARLY SITUATED.  IF IT IS NOT APPLIED, HE
POINTS OUT, IT IS POSSIBLE THAT DIFFERENT STANDARDS FOR THE PROTECTION
OF CONSTITUTIONAL RIGHTS COULD BE APPLIED TO TWO DEFENDANTS
SIMULTANEOUSLY TRIED IN THE SAME COURTHOUSE FOR SIMILAR OFFENSES.  THIS
ANOMALY COULD RESULT IF ONE OF THE DEFENDANTS HAD BEEN PREVIOUSLY TRIED
FOR THE SAME OFFENSE PRIOR TO MIRANDA.  THIS IDENTICAL RESULT, HOWEVER,
IS ALSO POSSIBLE UNDER OUR MORE RECENT PROSPECTIVITY DECISIONS. 
BECAUSE DESIST V. UNITED STATES, 394 U.S. 244 (1969), AND STOVALL V.
DENNO, 388 U.S. 293 (1967), SELECTED THE DATE ON WHICH THE PROHIBITED
PRACTICE WAS ENGAGED IN, RATHER THAN THE DATE THE TRIAL COMMENCED, TO
DETERMINE THE APPLICABILITY OF NEWLY FORMULATED CONSTITUTIONAL
STANDARDS, THOSE STANDARDS DO NOT APPLY TO RETRIALS OF DEFENDANTS
ORIGINALLY TRIED PRIOR TO THE DATES THE STANDARDS WERE ANNOUNCED.  IN
FACT, UNDER THOSE DECISIONS, DIFFERENT RULES COULD GOVERN WHERE NEITHER
DEFENDANT HAD BEEN TRIED BEFORE, DEPENDING UPON WHEN THE CONDEMNED
PRACTICE WAS ENGAGED IN. 

MOREOVER, AS PETITIONER ACKNOULEDGES, JOHNSON MADE IT QUITE CLEAR
THAT MIRANDA NEED NOT BE APPLIED TO TRIALS COMMENCED PRIOR TO THAT
DECISION BUT NOT YET FINAL WHEN IT WAS ANNOUNCED.  ON THAT DATE,
PETITIONER'S CASE WAS IN PRECISELY THAT POSTURE.  THE TYPE OF APPARENT
INCONGRUITY PETITIONER URGES US TO AVOID IS EQUALLY PRESENT IN REFUSING
TO APPLY MIRANDA TO DEFENDANTS WHOSE CASES, LIKE PETITIONER;S, WERE NOT
FINAL ON THE DATE MIRANDA WAS DECIDED, YET MAKING AN EXCEPTION FOR
PETITIONER SIMPLY BECAUSE HE WAS AFFORDED A POST-MIRANDA RETRIAL FOR
REASONS WHOLLY UNRELATED TO THE ADMISSIBILITY OF HIS INCRIMINATING
STATEMENT.  NOR IS PETITIONER'S HYPOTHETICAL MORE DISCONCERTING THAN
APPLYING THE NEW STANDARDS FOR IN-CUSTODY INTERROGATION TO ERNESTO
MIRANDA WHILE DENYING THEM TO OTHER DEFENDANTS WHOSE CASES, FOR WHOLLY
FORFUITOUR REASONS, SIMPLY REACHED THIS COURT AT A LATER DATE, ALTHOUGH
THE DEFENDANTS IN THOSE CASES MAY HAVE BEEN BOTH INTERROGATED AND TRIED
AFTER ERNESTO MIRANDA. 

IN SHORT, PETITIONER'S CONCERN FOR WHAT HE REFERS TO AS "VISIBLE
IMPERFECTIONS) IN A JUDICIAL PROCESS" MERELY HIGHLIGHTS THE PROBLEM
INHERENT IN PROSPECTIVE DECISION-MAKING, I.E., SOME DEFENDANTS BENEFIT
FROM THE NEW RULE WHILE OTHERS DO NOT, SOLELY BECAUSE OF THE FORTUITIES
THAT DETERMINE THE PROGRESS OF THEIR CASES FROM INITIAL INVESTIGATION
AND ARREST TO FINAL JUDGMENT.  THE RESULTING INCONGRUITIES MUST BE
BALANCED AGAINST THE IMPETUS THE TECHNIQUE PROVIDES FOR THE
IMPLEMENTATION OF LONG OVERDUE REFORMS, WHICH OTHERWISE COULD NOT BE
PRACTICABLY EFFECTED.  THUS, RAISING THE SPECTER OF POTENTIAL ANOMALIES
DOES NOT FURTHER THE DIFFICULT DECISION OF SELECTING THE PRECISE EVENT
THAT SHOULD DETERMINE THE PROSPECTIVE APPLICATION OF A NEWLY FORMULATED
CONSTITUTIONAL PRINCIPLE. 

ONCE THE NEED IS ESTABLISHED FOR APPLYING THE PRINCIPLE
PROSPECTIVELY, AS THE SUPREME COURT OF NEW JERSEY HAS POINTED OUT,
"THERE IS A LARGE MEASURE OF JUDICIAL DISCRETION INVOLVED IN DECIDING .
. . THE TIME FROM WHICH THE NEW PRINCIPLE IS TO BE DEEMED
CONTROLLING."  STATE V. VIGLIANO, 50 N.J. 51, 65-66, 232 A.2D 129, 137
(1967).  IN OUR MORE RECENT DECISIONS IN THIS AREA, WE HAVE REGARDED AS
DETERMINATIVE THE MOMENT AT WHICH THE DISCARDED STANDARDS WERE FIRST
RELIED UPON.  SEE, E.G., DESIST V. UNITED STATES, SUPRA; STOVALL V.
DEMO, SUPRA.  THE POINT OF RELIANCE IS CRITICAL, NOT BECAUSE OF ANY
CONSTITUTIONAL COMPULSION, BUT BECAUSE IT DETERMINES THE IMPACT THAT
NEWLY ARTICULATED CONSTITUTIONAL PRINCIPLES WILL HAVE UPON CONVICTIONS
OBTAINED PURSUANT TO INVESTIGATORY AND PROSECUTORIAL PRACTICES NOT
PREVIOUSLY PROSCRIBED.  SEE JOHNSON V. NEW JERSEY, SUPRA, AT 733.  SEE
GENERALLY SCHAEFER, THE CONTROL OF "SUNBURSTS":  TECHNIQUES OF
PROSPECTIVE OVERRULING, 42 N.Y.U.L.REV.  631 (1967).  /7/ 

IN JOHNSON, AFTER CONSIDERING THE NEED TO AVOID UNREASONABLY
DISRUPTING THE ADMINISTRATION OF OUR CRIMINAL LAWS, WE SELECTED THE
COMMENCEMENT OF TRIAL AS DETERMINATIVE.  WE OF COURSE COULD HAVE
APPLIED MIRANDA TO ALL JUDGMENTS NOT YET FINAL, ALTHOUGH THEY WERE
OBTAINED IN GOOD-FAITH RELIANCE UPON CONSTITUTIONAL STANDARDS THEN
APPLICABLE.  SEE LINKLETTER V. WALKER, 381 U.S. 618 (1965).  AS WE
POINTED OUT, HOWEVER, THAT CHOICE "WOULD (HAVE) IMPOSED) AN
UNJUSTIFIABLE BURDEN ON THE ADMINISTRATION OF JUSTICE."  384 U.S.,AT
733.  ON THE OTHER HAND, WE COULD HAVE ADOPTED THE APPROACH WE TOOK IN
STOVALL AND DESIST AND MADE THE POINT OF INITIAL RELIANCE, THE MOMENT
THE DEFENDANT IS INTERROGATED, THE OPERATIVE EVENT.  SEE SCHAEFER,
SUPRA, AT 646.  BUT IN AN EFFORT TO EXTEND THE PROTECTION OF MIRANDA TO
AS MANY DEFENDANTS AS WAS CONSISTENT WITH SOCIETY'S LEGITIMATE CONCERN
THAT CONVICTIONS ALREADY VALIDLY OBTAINED NOT BE NEEDLESSLY ABORTED, WE
SECLECTED THE COMMENCEMENT OF THE TRIAL.  IMPLICIT IN THIS CHOICE WAS
THE ASSUMPTION THAT, WITH FEW EXCEPTIONS, THE COMMISSION AND
INVESTIGATION OF A CRIME WOULD BE SUFFICIENTLY PROXIMATE TO THE
COMMENCEMENT OF THE DEFENDANT'S TRIAL THAT NO UNDUE BURDEN WOULD BE
IMPOSED UPON PROSECUTING AUTHORITIES BY REQUIRING THEM TO FIND
EVIDENTIARY SUBSTITUTES FOR STATEMENTS OBTAINED IN VIOLATION OF THE
CONSTITUTIONAL PROTECTIONS AFFORDED IN MIRANDA. 

THIS SAME CONCERN FOR THE JUSTIFIABLE RELIANCE OF LAW ENFORCEMENT
OFFICIALS UPON PRE-MIRANDA STANDARDS MILITATES AGAINST APPLYING MIRANDA
TO RETRIALS, WHICH WOULD PLACE A MUCH HEAVIER BURDEN UPON PROSECUTORS
TO COMPENSATE FOR THE INADMISSIBILITY OF INCRIMINATING STATEMENTS
OBTAINED AND ADMITTED INTO EVIDENCE PURSUANT TO PRACTICES NOT
PREVIOUSLY PROSCRIBED.  SEE, E.G., STATE V. VIGLIANO, SUPRA; PEOPLE V.
SAYERS, 22 N.Y.2D 571, 240 N.E.2D 540 (1968); COMMENT, THE
APPLICABILITY OF MIRANDA TO RETRIALS, 116 U.PA.L.REV.  316, 324-325
(1967).  AS WE STATED IN STOVALL, "(INQUIRY WOULD BE HANDICAPPED BY THE
UNAVAILABILITY OF WITNESSES AND DIM MEMORIES."  388 U.S.,AT 300.  THE
BURDEN WOULD BE PARTICULARLY ONEROUS WHERE AN INVESTIGATION WAS CLOSED
YEARS PRIOR TO A RETRIAL BECAUSE LAW ENFORCEMENT OFFICIALS RELIED IN
GOOD FAITH UPON A STRONGLY INCRIMINATING STATEMENT, ADMISSIBLE AT THE
FIRST TRIAL, TO PROVIDE THE CORNERSTONE OF THE PROSECUTION'S CASE.  /8/
MOREOVER, WE CANNOT ASSUME THAT APPLYING MIRANDA TO RETRIALS WOULD
AFFECT ONLY A SMALL NUMBER OF CASES.  IT COULD, FOR EXAMPLE, RENDER
SIGNIFICANTLY MORE DIFFICULT THE PROSECUTIONS OF DEFENDANTS, SOME OF
WHOM MAY HAVE BEEN CONVICTED MANY YEARS AGO, WHO ARE AFFORDED RETRIALS
BECAUSE THEIR CONVICTIONS WERE OBTAINED IN VIOLATION OF RECENTLY
ARTICULATED CONSITUTIONAL PRINCIPLES THAT ARE FULLY RETROACTIVE.  SEE,
E.G., BERGER V. CALIFORNIA, 393 U.S. 314 (1969); ROBERTS V. RUSSELL,
392 U.S. 293 (1968).  SUCH A DECISION COULD ALSO POSE A SERIOUS
OBSTACLE TO THE SUCCESSFUL PROSECUTION OF AN UNDETERMINED NUMBER OF
DEFENDANTS WHOSE PRE-MIRANDA CONVICTIONS ARE REVERSED BECAUSE OF ERRORS
UNDER FEDERAL OR STATE LAW THAT DO NOT EVEN CONSTITUTE CONSTITUTIONAL
VIOLATIONS.  /9/ 

IN DETERMINING HOW MUCH WEIGHT TO GIVE THE INCREASED EVIDENTIARY
BURDEN THAT WOULD RESULT IF WE WERE TO INSIST THAT MIRANDA BE APPLIED
TO RETRIALS, WE MUST CONSIDER SOCIETY'S INTEREST IN THE EFFECTIVE
PROSECUTION OF CRIMINALS IN LIGHT OF THE PROTECTION OUR PRE-MIRANDA
STANDARDS AFFORD CRIMINAL DEFENDANTS.  AS WE POINTED OUT IN JOHNSON, AN
INDIVIDUAL WHO CANNOT CLAIM THE BENEFITS OF MIRANDA MAY STILL RESORT TO
WHATEVER STATE AND FEDERAL PROCEDURES ARE AVAILABLE TO INSURE THAT
STATEMENTS ADMITTED AGAINST HIM WERE MADE VOLUNTARILY.  MOREOVER, HE
MAY INVOKDE A "SUBSTANTIVE TEST OF VOLUNTARINESS WHICH, BECAUSE OF THE
PERSISTENCE OF ABUSIVE PRACTICES, HAS BECOME INCREASINGLY METICULOUS .
. . , (TAKING) SPECIFIC ACCOUNT OF THE FAILURE OF ADVISE THE ACCUSED OF
HIS PRIVILEGE AGAINST SELF-INCRIMINATION OR TO ALLOW HIM ACCESS TO
OUTSIDE ASSITANCE."  384 U.S.,AT 730.  AS A RESULT, NOT APPLYING
MIRANDA TO RETRIALS WILL NOT PRECLUDE THE INVOCATION OF "THE SAME
SAFEGUARDS AS PART OF AN INVOLUNTARINESS CLAIM."  IBID.  THUS, BECAUSE
OF THE INCREASED EVIDENTIARY BURDEN THAT WOULD BE PLACED UNREASONABLY
UPON LAW ENFORCEMENT OFFICIALS BY INSISTING THAT MIRANDA BE APPLIED TO
RETRIALS, AND FOR ALL THE REASONS WE GAVE IN JOHNSON FOR NOT APPLYING
MIRANDA RETROACTIVELY, WE HOLD THAT MIRANDA DOES NOT APPLY TO ANY
RETRIAL /10/  OF A DEFENDANT WHOSE FIRST TRIAL COMMENCED PRIOR TO JUNE
13, 1966. 

ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF DELAWARE IS

              AFFIRMED. 

/1/  THE WORD "RETRIAL" IS USED IN THIS OPINION TO REFER ONLY TO A
SUBSEQUENT TRIAL OF A DEFENDANT WHOSE ORIGINAL TRIAL FOR THE SAME
CONDUCT COMMENCED PRIOR TO JUNE 13, 1966, THE DAY ON WHICH MIRANDA WAS
ANNOUNCED. 

/2/  PETITIONER'S REMAINING CONTENTIONS HAVE BEEN ADEQUATELY
RESOLVED BY THE COURT BELOW.  SEE JENKINS V. STATE, . . . DEL. . . . ,
230 A.2D 262 (1967), AND JENKINS V. STATE, . . . DEL. . . . , 240 A.2D
146 (1968). 

/3/ AS LEAST EIGHT STATES, INCLUDING DELAWARE, DECLINE TO APPLY
MIRANDA TO POST-MIRANDA RETRIALS OF CASES ORIGINALLY TRIED PRIOR TO
THAT DECISION.  SEE PEOPLE V. WORLEY, 37 ILL.2D 439, 227 N.E.2D 746
(1967) (DICTUM); BOONE V. STATE, 3 MD.APP.  11, 237 A.2D 787 (MD. CT.
SP. APP.) (DICTUM), CERT. TO MR. CT. APP. DENIED, 393 U.S. 872 (1968);
CHAPMAN V. STATE, 282 MINN. 13, 162 N.W.2D 698 (1968); STATE V.
VIGLIANO, 50 -.J. 51, 232 A.2D 129 (1967) (DICTUM); PEOPLE V. SAYERS,
22 N.Y.2D 571, 240 N.E.2D 540 (1968); STATE V. LEWIS, 274 N.C. 438, 164
S.E.2D 177 (1968) (DICTUM); MURPHY V. STATE, 221 TENN. 351, 426 S.W.2D
509 (1968).     AT LEAST NINE OTHER STATES HAVE INDICATED IN DICTA THAT
MIRANDA SHOULD BE APPLIED TO SUCH RETRIALS.  SEE SMITH V. STATE, 282
ALA. 268, 210 SO.2D 826 (1968); STATE V. BROCK, 101 ARIZ. 168, 416 P.2D
601 (1966); PEOPLE V. DOHERTY, 67 CAL.2D 9, 429 P.2D 177 (1967); STATE
V. RUIZ, 49 HAW.  504, 421 P.2D 305 (1966); DELL V. STATE, 249 IND.
231, 231 N.E.2D 522 (1967); STATE V. MCCARTHER, 197 KAN. 279, 416 P.2D
290 (1966); CREECH V. COMMONWEALTH, 412 S.W.2D 245 (CT. APP. KY. 1967);
STATE V. SHOFFNER, 31 WIS.2D 412, 143 N.W.2D 458 (1966).  IN STATE V.
BRADSHAW, 101 R.I. 233, 237, N. 1, 221 A.2D 815, 817, N. 1 (1966), THE
COURT EXPRESSLY DECLINED TO PASS ON THE ISSUE IN AN OPINION REVERSING A
CONVICTION ON OTHER GROUNDS, BUT IT NEVERTHELESS SUGGESTED THAT UNDER
JOHNSON THE DEFENDANT'S STATEMENT MIGHT NOT BE ADMISSIBLE AT HIS
RETRIAL. 

THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT HAS HELD
MIRANDA APPLICABLE UNITED STATES V. PHILLIPS, 401 F.2D 301 (C.A. 7TH
CIR. 1968); AND THAT HOLDING IS SUPPORTED BY DICTA IN AT LEAST THREE
OTHER CIRCUITS.  SEE UNITED STATES V. YOUNG, 388 F.2D 675 (C.A. 9TH
CIR. (1968); VIRGIN ISLANDS V. LOVELL, 378 F.2D 799, 802, N. 4 (C.A. 3D
CIR. (1967); GIBSON V. UNITED STATES, 363 F.2D 146 (C.A. 5TH CIR.
1966).  WITHOUT DISCUSSION, THE FOURTH CIRCUIT APPEARS TO HAVE REACHED
A CONTRARY RESULT BY IMPLICATION.  MOORER V. SOUTH CAROLINA, 368 F.2D
458 (C.A. 4TH CIR. 1966). 

/4/  E.G., UNITED STATES V. PHILLIPS, SUPRA; PEOPLE V. DOHERTY,
SUPRA. 

/5/  E.G., PEOPLE V. WORLEY, SUPRA; STATE V. VIGLIANO, SUPRA. 

/6/  E.G., SMITH V. STATE, SUPRA; PEOPLE V. WORLEY, SUPRA; PEOPLE V.
SAYERS, SUPRA; COMMENT, THE APPLICABILITY OF MIRANDA TO RETRIALS, 116
U.PA.L.REV.  316, 320 (1967); COMMENT, POST-MIRANDA RETRIALS OF PRE
MIRANDA DEFENDANTS, 25 WASH. & LEE L.REV.  108, 109 (1968). 

/7/  OUR INITIAL APPROACH TO PROSPECTIVE DECISION-MAKING HAS
UNDERGONE SOME MODIFICATION.  COMPARE LINKLETTER V. WALKER, 381 U.S.
618 (1965), WITH DESIST V. UNITED STATES, 394 U.S. 244 (1969).  WITH
JOHNSON WE BEGAN PLACING INCREASING EMPHASIS UPON THE POINT AT WHICH
LAW ENFORCEMENT OFFICIALS RELIED UPON PRACTICES NOT YET PROSCRIBED;
AND, MORE RECENTLY, WE HAVE SELECTED THE POINT OF INITIAL RELIANCE. 
SEE, E.G., DESIST V. UNITED STATES, SUPRA; STOVALL V. DENNO, SUPRA.  IN
ADDITION TO BEING MORE CONSISTENT WITH THE FUNDAMENTAL JUSTIFICATION
FOR NOT APPLYING NEWLY ENUNCIATED CONSTITUTIONAL PRINCIPLES
RETROACTIVELY, THIS LATEST APPROACH HAS OBVIATED AT LEAST ONE
ADMINISTRATIVE PROBLEM, THE TREATMENT OF RETRIALS.  OUR EXPERIENCE,
THEREFORE, HAS CONFIRMED MR. JUSTICE SCHAEFER'S OBSERVATION:  "SOUND
GROWTH CAN BE PROMOTED AND ERRATIC RESULTS AVOIDED BY FOCUSING
ATTENTION ON THE ELEMENT OF RELIANCE THAT JUSTIFIES THE TECHNIQUE. 
EVEN WHEN THAT IS DONE THERE WILL NOT ALWAYS BE AGREEMENT AS TO THE
QUALITY OR DEGREE OF RELIANCE THAT JUSTIFIES A PARTICULAR PROSPECTIVE
LIMITATION.  BUT THE AREA OR DISAFFECTION WILL BE NARROWED IF TIME
BEFORE AND TIME AFTER ARE MEASURED FROM THE MOMENT OF RELIANCE." 
SCHAEFER, THE CONTROL OF "SUNBURSTS":  TECHNIQUES OF PROSPECTIVE
OVERRULING, 42 N.Y.U.L.REV.  631, 646 (1967). 

/8/  IN ONE RECENT CASE, FOR EXAMPLE, IN WHICH THE COURT REFUSED TO
APPLY MIRANDA TO THE DEFENDANT'S RETRIAL, IT NOTED:  "THE INVESTIGATION
OF THIS BRUTAL ASSAULT AND THE INTERROGATION OF DEFENDANT BEGAN IN
JANUARY, 1955-- MORE THAN 12 YEARS PREVIOUS TO THIS RETRIAL.  THE
EVIDENCE IS CLEAR THAT IN 1955 DEFENDANT WAS WARNED OF HIS
CONSTITUTIONAL RIGHTS IN ACCORDANCE WITH THE REQUIREMENTS THEN
PREVAILING."  STATE V. LEWIS, 1 N.C.APP.  296, 297-298, 161 S.E.2D 497,
499 (1968). 

/9/  SEE, E.G., UNITED STATES V. PHILLIPS, SUPRA (DISCRETION ABUSED
BY ADMITTING UNDULY "PREJUDICIAL" EVIDENCE); STATE V. RUIZ, SUPRA
("PLAIN ERROR" IN TRIAL COURT'S FACT FINDING); BOONE V. STATE, SUPRA
(INSUFFICIENT CORROBORATION OF ACCOMPLICE'S TESTIMONY). 

/10/  FOR PURPOSES OF THIS HOLDING, IT IS IMMATERIAL WHETHER STATE
LAW TREATS A RETRIAL AS THE CONTINUATION OF THE ORIGINAL TRIAL, SEE,
E.G., PEOPLE V. WORLEY, SUPRA, OR AS A COMPLETELY NEW TRIAL THAT
PROCEEDS AS IF THE FORMER TRIAL NEVER OCCURRED.  SEE, E.G., STATE V.
BROCK, SUPRA.  WHAT IS DETERMINATIVE IS THAT THE DEFENDANT IS BEING
TRIED FOR THE SAME CONDUCT THAT WAS THE SUBJECT OF A PREVIOUSLY
REVERSED CONVICTION.  A STATE IS FREE, OF COURSE, FOR ANY REASON IT
FINDS PERSUASIVE, TO APPLY MIRANDA TO A SUBSEQUENT TRIAL OF A DEFENDANT
WHOSE ORIGINAL TRIAL COMMENCED PRIOR TO THAT DECISION.  SEE JOHNSON V.
NEW JERSEY, SUPRA, AT 733. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTS FOR
THE REASONS STATED IN HIS DISSENTING OPINIONS IN LINKLETTER V. WALKER,
381 U.S. 618, 640, AND JOHNSON V. NEW JERSEY, 384 U.S. 719, 736. 

MR. JUSTICE HARLAN, DISSENTING. 

AS ONE WHO HAS NEVER AGREED WITH THE MIRANDA CASE BUT NONETHELESS
FELT BOUND BY IT, /1/  I NOW FIND MYSELF IN THE UNCOMFORTABLE POSITION
OF HAVING TO DISSENT FROM A HOLDING WHICH ACTUALLY SERVES TO CURTAIL
THE IMPACT OF THAT DECISION. 

I FEEL COMPELLED TO DISSENT BECAUSE I CONSIDER THAT THE NEW
"RETROACTIVITY" RULING WHICH THE COURT MAKES TODAY IS DEFENSIBLE.  WERE
I FREE TO DO SO, I WOULD HOLD THAT THIS PETITIONER IS ENTITLED TO THE
BENEFITS OF MIRANDA, THIS CASE BEING BEFORE US ON DIRECT REVIEW AND
BEING ONE WHICH HAD NOT BECOME FINAL PRIOR TO THE DECISION OF MIRANDA. 
SEE MY DISSENTING OPINION IN DESIST V. UNITED STATES, 394 U.S. 244, 256
(1969); LINKLETTER V. WALKER, 381 U.S. 618 (1965).  BUT SINCE AS TO THE
RETROACTIVITY ISSUE I AM ALSO BOUND BY JOHNSON V. NEW JERSEY, 384 U.S.
719 (1966), I MUST JUDGE THAT ISSUE WITHIN THE CONFINES OF JOHNSON,
WHICH DOES NOT APPEAR TO HAVE BEEN OVERRULED BY WHAT WAS DONE IN DESIST
V. UNITED STATES, SUPRA. 

IN THE JOHNSON CASE WE HELD THAT THE "GUIDELINES" OF MIRANDA SHOULD
APPLY TO ALL "PERSONS WHOSE TRIALS HAD NOT BEGUN AS OF JUNE 13, 1966,"
384 U.S.,AT 734, THE DATE ON WHICH MIRANDA WAS HANDED DOWN.  TODAY,
HOWEVER, THE COURT HOLDS THAT MIRANDA DOES NOT APPLY TO PERSONS WHOSE
RETRIALS HAVE COMMENCED AFTER THAT DATE, IF THE ORIGINAL TRIAL HAD
BEGUN BEFORE MIRANDA WAS DECIDED.  I FIND IT QUITE IMPOSSIBLE TO
DISCERN IN THE RATIONALE OF JOHNSON ANY SOLID BASIS FOR THE DISTINCTION
NOW DRAWN. 

THE COURT STATES THAT THE RETROACTIVITY RULE ADOPTED IN JOHNSON WAS
"AN EFFORT TO EXTEND THE PROTECTION OF MIRANDA TO AS MANY DEFENDANTS AS
WAS CONSISTENT WITH SOCIETY'S LEGITIMATE CONCERN THAT CONVICTIONS
ALREADY VALIDLY OBTAINED NOT BE NEEDLESSLY ABORTED."  ANTE, AT 219.  I
TOO BELIEVE THAT A DESIRE NOT TO INTERFERE WITH TRIALS WHICH WERE
CONCLUDED OR ALREADY UNDER WAY AT THE TIME OF MIRANDA LAY AT THE CORE
OF WHAT WAS DONE IN JOHNSON.  SEE 384 U.S.,AT 732-735.  BUT THAT
RATIONALE WOULD SEEM TO REQUIRE APPLICATION OF MIRANDA TO SUBSEQUENT
RETRIALS, RATHER THAN THE CONTRARY RESULT MANDATED BY THE COURT.  WHEN
A DEFENDANT HAS HAD HIS PRE-MIRANDA CONVICTION SET ASIDE ON OTHER
MIRANDA GROUNDS AND IS BEING RETRIED, THERE IS BY HYPOTHESIS NO
"CONVICTION . . . VALIDLY OBTAINED" WHICH MIGHT BE "NEEDLESSLY ABORTED"
BY APPLICATION OF THE MIRANDA STANDARDS.  THERE IS NO ONGOING TRIAL IN
WHICH THE PROSECUTION'S STRATEGY MIGHT HAVE BEEN PREMISED ON PRE
MIRANDA CONFESSION RULES. 

I AM ALSO LEFT WHOLLY UNPERSUADED BY THE COURT'S STATEMENT THAT
APPLICATION OF MIRANDA TO RETRIALS WOULD IMPOSE AN INTOLERABLE
"EVIDENTIARY BURDEN" ON PROSECUTORS, FOR THE COURT IGNORES THE FACT
THAT MIRANDA WILL IMPOSE A VERY SIMILAR BURDEN WHENEVER A DEFENDANT'S
FIRST TRIAL HAS FOR ONE REASON OR ANOTHER BEEN SUBSTANTIALLY DELAYED
AND ITS COMMENCEMENT CARRIED BEYOND THE JOHNSON CUT-OFF DATE. 

APART FROM THE TWO PROPOSITIONS JUST DISCUSSED, THE COURT OFFERS
NOTHING IN JUSTIFICATION OF ITS TRIAL-RETRIAL DISTINCTION BEYOND THE
GENERAL OBSERVATION THAT THE RETROACTIVITY "TECHNIQUE" NECESSARILY
ENTAILS "INCONGRUITIES" WHICH MUST BE TOLERATED BECAUSE OF "THE IMPETUS
THE TECHNIQUE PROVIDES FOR THE IMPLEMENTATION OF LONG OVERDUE REFORMS,
WHICH OTHERWISE COULD NOT BE PRACTICABLY EFFECTED."  ANTE, AT 218.  BUT
SURELY IT IS INCUMBENT UPON THIS COURT TO ENDEAVOR TO KEEP SUCH
INCONGRUITIES TO A MINIMUM.  THIS IN MY OPINION CAN ONLY BE DONE BY
TURNING OUR BACKS ON THE AD LOC APPROACH THAT HAS SO FAR CHARACTERIZED
OUR DECISIONS IN THE RETROACTIVITY FIELD AND PROCEEDING TO ADMINISTER
THE DOCTRINE ON PRINCIPLE.  SEE MY DISSENTING OPINION IN DESIST, SUPRA.
WHAT IS DONE TODAY LEADS ME AGAIN, SEE IDIB., TO URGE THAT THE TIME
HAS COME FOR US TO TAKE A FRESH LOOK AT THE WHOLE PROBLEM OF
RETROACTIVITY. 

I WOULD REVERSE THE JUDGMENT OF THE SUPREME COURT OF DELAWARE.  IT
WOULD BE LESS THAN FRANK WERE I NOT TO SAY THAT I CAST THIS VOTE WITH
RELUCTANCE, FEELING AS I DO ABOUT THE UNSOUNDNESS OF MIRANDA. 

/1/  SEE MY DISSENTING OPINION IN MIRANDA V. ARIZONA, 384 U.S. 436,
504 (1966), AND MY CONCURRING OPINION IN OROZCO V. TEXAS, 394 U.S. 324,
327 (1969). 

HENRY N. HERNDON, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

JAY H. CONNER, DEPUTY ATTORNEY GENERAL OF DELAWARE, ARGUED THE CAUSE
AND FILED A BRIEF FOR RESPONDENT. 

A BRIEF AS AMICUS CURIAE URGING REVERSAL WAS FILED FOR HENRY A.
VIGLIANO. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ,
FIRST ASSISTANT ATTORNEY GENERAL, AND AMY JUVILER, ASSISTANT ATTORNEY
GENERAL, FILED A BRIEF FOR THE ATTORNEY GENERAL OF NEW YORK AS AMICUS
CURIAE URGING AFFIRMANCE. 
..END :















U.S. V. MONTGOMERY BD. OF EDUC., 395 U.S. 225 


       UNITED STATES V. MONTGOMERY COUNTY BOARD OF EDUCATION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 798.  ARGUED APRIL 28, 1969.-- DECIDED JUNE 2, 1969. 

       /1/ 


THIS ACTION WAS COMMENCED IN MAY 1964 TO OBTAIN INTEGRATION IN THE
MONTOGOMERY COUNTY, ALABAMA, PUBLIC SCHOOLS.  THE DISTRICT JUDGE ISSUED
HIS INITIAL ORDER IN 1964 REQUIRING INTEGRATION OF CERTAIN GRADES AND
FOLLOWED THIS BY YEARLY PROCEEDINGS, WITH REPORTS BY THE SCHOOL BOARD
AND HEARINGS, OPINIONS, AND COURT ORDERS.  THE 1968 COURT ORDER DEALTH,
AMONG OTHER THINGS, WITH FACULTY AND STAFF DESEGREGATION AND PROVIDED
THAT THE SCHOOL BOARD MUST MOVE TOWARD A GOAL WHEREBY "IN EACH SCHOOL
THE RATIO OF WHITE TO NEGRO FACULTY MEMBERS IS SUBSTANTIALLY THE SAME
AS IT IS THROUGHOUT THE SYSTEM."  A PANEL OF THE COURT OF APPEALS
MODIFIED THE ORDER.  A PETITION FOR REHEARING EN BANC WAS DENIED BY AN
EQUALLY DIVIDED COURT OF APPEALS.  HELD:  THE DISTRICT JUDGE'S ORDER IS
APPROVED AS WRITTEN BY HIM.  PP. 231-237. 

400 F.2D 1, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THIS ACTION THE UNITED STATES DISTRICT COURT AT MONTGOMERY,
ALABAMA, ORDERED THE LOCAL MONTOGOMERY COUNTY BOARD OF EDUCATION TO
BRING ABOUT A RACIAL DESEGREGATION OF THE FACULTY AND THE STAFF OF THE
LOCAL COUNTY SCHOOL SYSTEM.  289 F.SUPP.  647 (1968).  DISSATISFIED
WITH THE DISTRICT COURT'S ORDER, THE BOARD APPEALED.  A PANEL OF THE
COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S ORDER BUT, BY A TWO-TO
ONE VOTE, MODIFIED IT IN PART, 400 F.2D 1 (1968).  /1A/  A PETITION FOR
REHEARING EN BANC WAS DENIED BY AN EVENLY DIVIDED COURT, SIX TO SIX,
THEREBY LEAVING STANDING THE MODIFICATIONS IN THE DISTRICT COURT'S
ORDER MADE BY THE PANEL.  /2/  ON PETITIONS OF THE UNITED STATES AS
INTERVENOR BELOW IN NO. 798, AND THE INDIVIDUAL PLAINTIFFS IN NO. 997,
WE GRANTED CERTIORARI.  393 U.S. 1116 (1969). 

FIFTEEN YEARS AGO, ON MAY 17, 1954, WE DECIDED THAT SEGREGATION OF
THE RACES IN THE PUBLIC SCHOOLS IS UNCONSTITUTIONAL.  BROWN V. BOARD OF
EDUCATION, 347 U.S. 483 (BROWN I).  IN THAT CASE WE LEFT UNDECIDED THE
MANNER IN WHICH THE TRANSITION FROM SEGREGATED TO UNITARY SCHOOL
SYSTEMS WOULD BE ACHIEVED, AND SET THE CASE DOWN FOR ANOTHER HEARING,
INVITING THE ATTORNEY GENERAL OF THE UNITED STATES AND THE ATTORNEYS
GENERAL OF THE STATES PROVIDING FOR RACIAL SEGREGATION IN THE PUBLIC
SCHOOLS TO PRESENT THEIR VIEWS ON THE BEST WASYS TO IMPLEMENT AND
ENFORCE OUR JUDGMENT.  WE DEVOTED FOUR DAYS TO THE ARGUMENT ON THIS
SINGLE PROBLEM, AND ALL THE AFFECTED PARTIES WERE GIVEN THE OPPORTUNITY
TO PRESENT THEIR VIEWS AT LENGTH.  AFTER CAREFUL CONSIDERATION OF THE
MANY VIEWPOINTS SO FULLY AIRED BY THE PARTIES, WE ANNOUNCED OUR
DECISION IN BROWN II, 349 U.S. 294 (1955).  WE HELD THAT THE PRIMARY
RESPONSIBILITY FOR ABOLISHING THE SYSTEM OF SEGREGATED SCHOOLS WOULD
REST WITH THE LOCAL SCHOOL AUTHORITIES.  IN SOME OF THE STATES THAT
ARGUED BEFORE US, THE LAWS PERMITTED BUT DID NOT REQUIRE RACIAL
SEGREGATION, AND WE NOTED THAT IN SOME OF THESE STATES "SUBSTANTIAL
STEPS TO ELIMINATE RACIAL DISCRIMINATION IN PUBLIC SCHOOLS HAVE ALREADY
BEEN TAKEN.  . . . "  ID., AT 299.  MANY OTHER STATES HAD FOR MANY
YEARS MAINTAINED A COMPLETELY SEPARATE SYSTEM OF SCHOOLS FOR WHITES AND
NONWHITES, AND THE LAWS OF THESE STATES, BOTH CIVIL AND CRIMINAL, HAD
BEEN WRITTEN TO KEEP THIS SEGREGATED SYSTEM OF SCHOOLS INVIOLATE.  THE
PRACTICES, HABITS, AND CUSTOMS HAD FOR GENERATIONS MADE THIS SEGREGATED
SCHOOL SYSTEM A FIXED PART OF THE DAILY LIFE AND EXPECTATIONS OF THE
PEOPLE.  RECOGNIZING THESE INDISPUTABLE FACTS, WE NEITHER EXPTECTED NOR
ORDERED THAT A COMPLETE ABANDONMENT OF THE OLD AND ADOPTION OF A NEW
SYSTEM BE ACCOMPLISHED OVERNIGHT.  THE CHANGES WERE TO BE MADE "AT THE
EARLIEST PRACTICABLE DATE" AND WITH "ALL DELIBERATE SPEED."  ID., AT
300, 301.  WE WERE NOT CONTENT, HOWEVER, TO LEAVE THIS TASK IN THE
UNSUPERVISED HANDS OF LOCAL SCHOOL AUTHORITIES, TRAINED AS MOST WOULD
BE UNDER THE OLD LAWS AND PRACTICES, WITH LOYALTIES TO THE SYSTEM OF
SEPARATE WHITE AND NEGRO SCHOOLS.  AS WE STRESSED THEN, "(IT SHOULD GO
WITHOUT SAYING THAT THE VITALITY OF THESE CONSTITUTIONAL PRINCIPLES
CANNOT BE ALLOWED TO YIELD SIMPLY BECAUSE OF DISAGREEMENT WITH THEM." 
ID., AT 300.  THE PROBLEM OF DELAYS BY LOCAL SCHOOL AUTHORITIES DURING
THE TRANSITION PERIOD WAS THEREFORE TO BE THE RESPONSIBILITY OF COURTS,
LOCAL COURTS SO FAR AS PRACTICABLE, THOSE COURTS TO BE GUIDED BY
TRADITIONAL EQUITABLE FLEXIBILITY TO SHAPE REMEDIES IN ORDER TO ADJUST
AND RECONCILE PUBLIC AND PRIVATE NEEDS.  THESE COURTS WERE CHARGED IN
OUR BROWN II OPINION, ID., AT 300, WITH A DUTY TO: 

"REQUIRE THAT THE DEFENDANTS (LOCAL SCHOOL AUTHORITIES) MAKE A
PROMPT AND REASONABLE START TOWARD FULL COMPLIANCE WITH OUR MAY 17,
1954, RULING.  ONCE SUCH A START HAS BEEN MADE, THE COURTS MAY FIND
THAT ADDITIONAL TIME IS NECESSARY TO CARRY OUT THE RULING IN AN
EFFECTIVE MANNER.  THE BURDEN RESTS UPON THE DEFENDANTS TO ESTABLISH
THAT SUCH TIME IS NECESSARY IN THE PUBLIC INTEREST AND IS CONSISTENT
WITH GOOD FAITH COMPLIANCE AT THE EARLIEST PRACTICABLE DATE." 

THE RECORD SHOWS THAT NEITHER MONTOGOMERY COUNTY NOR ANY OTHER AREA
IN ALABAMA VOLUNTARILY TOOK ANY EFFECTIVE STEPS TO INTEGRATE THE PUBLIC
SCHOOLS FOR ABOUT 10 YEARS AFTER OUR BROWN I OPINION.  IN FACT THE
RECORD MAKES CLEAR THAT THE STATE GOVERNMENT AND ITS SCHOOL OFFICIALS
ATTEMPTED IN EVERY WAY POSSIBLE TO CONTINUE THE DUAL SYSTEM OF RACIALLY
SEGREGATED SCHOOLS IN DEFIANCE OF OUR REPEATED UNANIMOUS HOLDINGS THAT
SUCH A SYSTEM VIOLATED THE UNITED STATES CONSTITUTION.  /3/ 

THERE THE MATTER STOOD IN ALABAMA IN MAY 1964 WHEN THE PRESENT
ACTION WAS BROUGHT BY NEGRO CHILDREN AND THEIR PARENTS, WITH
PARTICIPATION BY THE UNITED STATES AS AMICUS CURIAE.  APPARENTLY UP TO
THAT TIME MONTOGOMERY COUNTY, AND INDEED ALL OTHER SCHOOLS IN THE
STATE, HAD OPERATED, SO FAR AS ACTUAL RACIAL INTEGRATION WAS CONCERNED,
AS THOUGH OUR BROWN CASES HAD NEVER BEEN DECIDED.  OBVIOUSLY VOLUNTARY
INTEGRATION BY THE LOCAL SCHOOL OFFICIALS IN MONTOGOMERY HAD NOT PROVED
TO BE EVEN PARTIALLY SUCCESSFUL.  CONSEQUENTLY, IF NEGRO CHILDREN OF
SCHOOL AGE WERE TO RECEIVE THEIR CONSTITUTIONAL RIGHTS AS WE HAD
DECLARED THEM TO EXIST, THE COERCIVE ASSISTANCE OF COURTS WAS
IMPERATIVELY CALLED FOR.  SO, AFTER PRELIMINARY PROCEDURAL MATTERS WERE
DISPOSED OF, ANSWERS FILED, AND ISSUES JOINED, A TRIAL TOOK PLACE.  ON
JULY 31, 1964, DISTRICT JUDGE JOHNSON HANDED DOWN AN OPINION AND
ENTERED AN ORDER.  232 F.SUPP.  705.  THE JUDGE FOUND THAT AT THE
TIME: 

"THERE IS ONLY ONE SCHOOL DISTRICT FOR MONTOGOMERY COUNTY, ALABAMA,
WITH THE COUNTY BOARD OF EDUCATION AND THE SUPERINTENDENT OF EDUCATION
OF MONTOGOMERY COUNTY, ALABAMA, EXERCISING COMPLETE CONTROL OVER THE
ENTIRE SYSTEM.  IN THIS SCHOOL SYSTEM FOR THE SCHOOL YEAR 1963-64,
THERE WERE IN ATTENDANCE APPROXIMATELY 15,000 NEGRO CHILDREN AND
APPROXIMATELY 25,000 WHITE CHILDREN.  IN THIS SYSTEM THE MONTOGOMERY
COUNTY BOARD OF EDUCATION OWNS AND OPERATES APPROXIMATELY 77 SCHOOLS. 

     "FROM THE EVIDENCE IN THIS CASE, THIS COURT FURTHER

  SPECIFICALLY FINDS THAT, THROUGH POLICY, CUSTOM AND PRACTICE, THE

  MONTOGOMERY COUNTY BOARD OF EDUCATION, FUNCTIONING AT THE PRESENT

  TIME THROUGH THE NAMED INDIVIDUAL DEFENDANTS, OPERATES A DUAL

  SCHOOL SYSTEM BASED UPON RACE AND COLOR; THAT IS TO SAY, THAT,

  THROUGH THIS POLICY, PRACTICE AND CUSTOM, THESE OFFICIALS OPERATE

  ONE SET OF SCHOOLS TO BE ATTENDED EXCLUSIVELY BY NEGRO STUDENTS

  AND ONE SET OF SCHOOLS TO BE ATTENDED EXCLUSIVELY BY WHITE

  STUDENTS.  THE EVIDENCE FURTHER REFLECTS THAT THE TEACHERS ARE

  ASSIGNED ACCORDING TO RACE; NEGRO TEACHERS ARE ASSIGNED ONLY TO

  SCHOOLS ATTENDED BY NEGRO STUDENTS AND WHITE TEACHERS ARE

  ASSIGNED ONLY TO SCHOOLS ATTENDED BY WHITE STUDENTS."  232

  F.SUPP.,AT 707. 

BASED ON HIS FINDINGS, JUDGE JOHNSON ORDERED THAT INTEGRATION OF
CERTAIN GRADES BEGIN IN SEPTEMBER 1964, BUT IN THIS FIRST ORDER DID NOT
REQUIRE EFFORTS TO DESEGREGATE THE FACULTY.  THE SCHOOL BOARD, ACTING
UNDER THE STATE'S SCHOOL PLACEMENT LAW, FINALLY ADMITTED EIGHT NEGRO
STUDENTS OUT OF THE 29 WHO HAD SOUGHT TRANSFERS TO WHITE SCHOOLS UNDER
THE JUDGE'S JULY 31 ORDER.  THE JUDGE REFUSED TO ORDER ADMISSION OF THE
21 NEGRO STUDENTS WHOSE TRANSFER APPLICATIONS HAD BEEN REJECTED BY THE
SCHOOL OFFICIALS. 

THE 1964 INITIAL ORDER OF JUDGE JOHNSON WAS FOLLOWED BY YEARLY
PROCEEDINGS, OPINIONS, AND ORDERS BY HIM.  /4/  HEARINGS, PRECEDING
THESE ADDITIONAL ORDERS, FOLLOWED THE FILING EACH YEAR UNDER THE
JUDGE'S DIRECTION OF A REPORT OF THE SCHOOL BOARD'S PLANS FOR
PROCEEDING WITH DESEGREGATION.  THESE ANNUAL REPORTS AND ORDERS,
TOGETHER WITH TRANSCRIPTS OF THE DISCUSSIONS AT THE HEARINGS, SEEM TO
REVEAL A GROWING RECOGNITION ON THE PART OF THE SCHOOL BOARD OF ITS
RESPONSIBILITY TO ACHIEVE INTEGRATION AS RAPIDLY AS PRACTICABLE.  THE
RECORD, HOWEVER, ALSO REVEALS THAT IN SOME AREAS THE BOARD WAS NOT
MOVING AS RAPIDLY AS IT COULD TO FULFIL THIS DUTY, AND THE RECORD SHOWS
A CONSTANT EFFORT BY THE JUDGE TO EXPEDITE THE PROCESS OF MOVING AS
RAPIDLY AS PRACTICAL TOWARD THE GOAL OF A WHOLLY UNITARY SYSTEM OF
SCHOOLS, NOT DIVIDED BY RACE AS TO EITHER STUDENTS OR FACULTY.  DURING
THESE YEARS OF WHAT TURNED OUT TO BE AN EXCHANGE OF IDEAS BETWEEN JUDGE
AND SCHOOL BOARD OFFICIALS, THE JUDGE, FROM TIME TO TIME, FOUND IT
POSSIBLE TO COMPLIMENT THE BOARD ON ITS COOPERATION WITH HIM IN TRYING
TO BRING ABOUT A FULLY INTEGRATED SCHOOL SYSTEM.  SOME OF THESE
COMPLIMENTARY REMARKS ARE SET OUT IN THE OPINION OF THE COURT OF
APPEALS MODIFYING THE JUDGE'S DECREE.  400 F.2D, AT 3, N.3.  ON THE
OTHER HAND THE BOARD DID NOT SEE EYE TO EYE WITH JUDGE JOHNSON ON THE
SPEED WITH WHICH SEGREGATION SHOULD BE WIPED OUT "ROOT AND BRANCH" AS
WE HAVE HELD IT MUST BE DONE.  GREEN V. COUNTY SCHOOL BOARD, 391 U.S.
430, 438 (1968).  THE SCHOOL BOARD, HAVING TO FACE THE "COMPLEXITIES
ARISING FROM THE TRANSITION TO A SYSTEM OF PUBLIC EDUCATION FREED OF
RACIAL DISCRIMINATION," BROWN II, 349 U.S.,AT 299, WAS CONSTANTLY
SPARRING FRO TIME; THE JUDGE, UPON WHOM WAS THRUST THE DIFFICULT TASK
OF INSURING THE ACHIEVEMENT OF COMPLETE INTEGRATION AT THE EARLIEST
PRACTICABLE DATE, WAS CONSTANTLY URGING THAT NO UNNECESSARY DELAY COULD
BE ALLOWED IN REACHING COMPLETE COMPLIANCE WITH OUR MANDATE THAT
RACIALLY SEGREGATED PUBLIC SCHOOLS BE MADE NOTHING BUT A MATTER OF PAST
HISTORY.  IN THIS CONTEXT OF CLASHING OBJECTIVES IT IS NOT SURPRISING
THAT THE JUDGE'S MOST RECENT 1968 ORDER SHOULD HAVE FAILED FULLY TO
SATISFY EITHER SIDE.  IT IS GRATIFYING, HOWEVER, THAT THE DIFFERENCES
ARE SO MINOR AS THEY APPEAR TO US TO BE. 

IN HIS 1968 ORDER JUDGE JOHNSON PROVIDED FOR SAFEGUARDS TO ASSURE
THAT CONSTRUCTION OF NEW SCHOOLS OR ADDITIONS TO EXISTING SCHOOLS WOULD
NOT FOLLOW A PATTERN TENDING TO PERPETUATE SEGREGATION.  THE ORDER ALSO
PROVIDED FOR THE ADOPTION OF NONDISCRIMINATORY BUS ROUTES AND FOR OTHER
SAFEGUARDS TO INSURE THAT THE BOARD'S TRANSPORTATION POLICY WOULD NOT
TEND TO PERPETUATE SEGREGATION.  THE ORDER PROVIDED FOR DETAILED STEPS
TO ELIMINATE THE IMPRESSION EXISTING IN THE SCHOOL DISTRICT THAT THE
NEW JEFFERSON DAVIS HIGH SCHOOL AND TWO NEW ELEMENTARY SCHOOLS WERE TO
BE USED PRIMARILY BY WHITE STUDENTS.  THE ORDER ALSO INCLUDED A
REQUIREMENT THAT THE BOARD FILE IN THE NEAR FUTURE FURTHER SPECIFIC
REPORTS DETAILING THE STEPS TAKEN TO COMPLY WITH EACH POINT OF THE
ORDER.  NEARLY ALL OF THESE ASPECTS OF THE ORDER WERE ACCEPTED BY THE
SCHOOL BOARD AND NOT CHALLENGED IN ITS APPEAL TO THE COURT OF APPEALS. 
OF THE PROVISIONS SO FAR MENTIONED, ONLY ONE ASPECT OF THE PROVISION
RELATING TO JEFFERSON DAVIS HIGH SCHOOL WAS CHALLENGED IN THE COURT OF
APPEALS, AND AFTER THE COURT OF APPEALS UPHELD JUDGE JOHNSON'S ORDER ON
THIS POINT, THE SCHOOL BOARD ACCEPTED ITS DECISION AND DID NOT SEEK
REVIEW ON THE QUESTION HERE. 

THE DISPUTE IN THIS ACTION THUS CENTERS ONLY ON THAT PART OF THE
1968 ORDER WHICH DEALS WITH FACULTY AND STAFF DESEGREGATION, A GOAL
THAT WE HAVE RECOGNIZED TO BE AN IMPORTANT ASPECT OF THE BASIC TASK OF
ACHIEVING A PUBLIC SCHOOL SYSTEM WHOLLY FREE FROM RACIAL
DISCRIMINATION.  SEE, E.G., BRADLEY V. SCHOOL BOARD, 382 U.S. 103
(1965); ROGERS V. PAUL, 382 U.S. 198 (1965).  JUDGE JOHNSON NOTED THAT
IN 1966 HE HAD ORDERED THE BOARD TO BEGIN THE PROCESS OF FACULTY
DESEGRATION IN THE 1966-1967 SCHOOL YEAR BUT THAT THE BOARD HAD NOT
MADE ADEQUATE PROGRESS TOWARD THIS GOAL.  THE ALSO FOUND: 

     "THE EVIDENCE DOES NOT REFLECT ANY REAL ADMINISTRATIVE
PROBLEMS

  INVOLVED IN IMMEDIATELY DESEGREGATING THE SUBSTITUTE TEACHERS,

  THE STUDENT TEACHERS, THE NIGHT SCHOOL FACULTIES, AND IN THE

  EVOLVEMENT OF A REALLY LEGALLY ADEQUATE PROGRAM FOR THE

  SUBSTANTIAL DESEGREGATION OF THE FACULTIES OF ALL SCHOOLS IN THE

SYSTEM COMMENCING WITH THE SCHOOL YEAR OF 1968-69."  289

F.SUPP.,AT 650. 

HE THEREFORE CONCLUDED THAT A MORE SPECIFIC ORDER WOULD BE APPROPRIATE
UNDER ALL THE CIRCUMSTANCES TO ESTABLISH THE MINIMUM AMOUNT OF PROGRESS
THAT WOULD BE REQUIRED FOR THE FUTURE.  TO THIS END HIS ORDER PROVIDED
THAT THE BOARD MUST MOVE TOWARD A GOAL UNDER WHICH "IN EACH SCHOOL THE
RATIO OF WHITE TO NEGRO FACULTY MEMBERS IS SUBSTANTIALLY THE SAME AS IT
IS THROUGHOUT THE SYSTEM."  ID., AT 654.  IN ADDITION, THE ORDER SET
FORTH A SPECIFIC SCHEDULE.  THE RATIO OF NEGRO TO WHITE TEACHERS IN THE
ASSIGNMENT OF SUBSTITUTE, STUDENT, AND NIGHT SCHOOL TEACHERS IN EACH
SCHOOL WAS TO BE ALMOST IMMEDIATELY MADE SUBSTANTIALLY THE SAME AS THE
RATIO OF NEGRO TO WHITE TEACHERS IN EACH OF THESE GROUPS FOR THE SYSTEM
AS A WHOLE.  WITH RESPECT TO FULL-TIME TEACHERS, A MORE GRADUAL
SCHEDULE WAS SET FORTH.  AT THE TIME THE RATIO OF WHITE TO NEGRO FULL
TIME TEACHERS IN THE SYSTEM AS A WHOLE WAS THREE TO TWO.  FOR THE 1968
1969 SCHOOL YEAR, EACH SCHOOL WITH FEWER THAN 12 TEACHERS WAS REQUIRED
TO HAVE AT LEAST TWO FULL-TIME TEACHERS WHOSE RACE WAS DIFFERENT FROM
THE RACE OF THE MAJORITY OF THE FACULTY AT THAT SCHOOL, AND IN SCHOOLS
WITH 12 OR MORE TEACHERS, THE RACE OF AT LEAST ONE OUT OF EVERY SIX
FACULTY AND STAFF MEMBERS WAS REQUIRED TO BE DIFFERENT FROM THE RACE OF
THE MAJORITY OF THE FACULTY AND STAFF MEMBERS AT THAT SCHOOL.  THE
GOALS TO BE REQUIRED FOR FUTURE YEARS WERE NOT SPECIFIED BUT WERE
RESERVED FOR LATER DECISION.  ABOUT A WEEK LATER JUDGE JOHNSON AMENDED
PART OF THE ORIGINAL ORDER BY PROVIDING THAT IN THE 1968-1969 TERM
SCHOOLS WITH LESS THAN 12 TEACHERS WOULD BE REQUIRED TO HAVE ONLY ONE
FULL-TIME TEACHER OF THE MINORITY RACE RATHER THAN TWO, AS HE HAD
ORIGINALLY REQUIRED.     IT WAS THE PART OF THE DISTRICT COURT'S ORDER
CONTAINING THIS RATIO PATTERN THAT PROMPTED THE MODIFICATION OF THE
ORDER BY THE COURT OF APPEALS.  AGREEING THAT THE DISTRICT COURT HAD
PROPERLY FOUND FROM "EXTENSIVE HEARINGS . . . THAT DESEGREGATION OF
FACULTIES IN THE MONTOGOMERY COUNTY SCHOOL SYSTEM WAS LAGGING AND THAT
APPELLANTS (THE SCHOOL BOARD) HAD FAILED TO COMPLY WITH EARLIER ORDERS
OF THE COURT REQUIRING FULL FACULTY DESEGREGATION," AND NOTING THAT THE
TESTIMONY OF SCHOOL OFFICIALS THEMSELVES INDICATED THE NEED FOR MORE
SPECIFIC GUIDELINES, /5/  THE COURT OF APPEALS NEVERTHELESS STRUCK DOWN
PARTS OF THE ORDER WHICH IT VIEWED AS REQUIRING "FIXED MATHEMATICAL"
RATIOS.  IT HELD THAT THE PART OF THE ORDER SETTING A SPECIFIC GOAL FOR
THE 1968-1969 SCHOOL YEAR SHOULD BE MODIFIED TO REQUIRE ONLY
"SUBSTANTIALLY OR APPROXIMATELY" THE 5-1 RATIO REQUIRED BY JUDGE
JOHNSON'S ORDER.  WITH RESPECT TO THE ULTIMATE OBJECTIVE FOR THE
FUTURE, IT HELD THAT THE NUMERICAL RATIO SHOULD BE ELIMINATED AND THAT
COMPLIANCE SHOULD NOT BE TESTED SOLELY BY THE ACHIEVEMENT OF SPECIFIED
RATIOS.  IN SO HOLDING, THE COURT OF APPEALS MADE MANY ARGUMENTS
AGAINST RIGID OR INFLEXIBLE ORDERS IN THIS KIND OF CASE.  THESE
ARGUMENTS MIGHT POSSIBLY BE MORE TROUBLESOME IF WE READ THE DISTRICT
COURT'S ORDER AS BEING ABSOLUTELY RIGID AND INFLEXIBLE, AS DID THE
COURT OF APPEALS.  BUT AFTER A CAREFUL CONSIDERATION OF THE WHOLE
RECORD WE CANNOT BELIEVE THAT JUDGE JOHNSON HAD ANY SUCH INTENTION. 
DURING THE FOUR OR FIVE YEARS THAT HE HELD HEARINGS AND CONSIDERED THE
PROBLEM BEFORE HIM, NEW ORDERS, AS PREVIOUSLY SHOWN, WERE ISSUED
ANNUALLY AND SOMETIMES MORE OFTEN.  ON AT LEAST ONE OCCASION JUDGE
JOHNSON, ON HIS OWN MOTION, AMENDED HIS OUTSTANDING ORDER BECAUSE A
LESS STRINGENT ORDER FOR ANOTHER DISTRICT HAD BEEN APPROVED BY THE
COURT OF APPEALS.  THIS WAS DONE IN ORDER NOT TO INFLICT ANY POSSIBLE
INJUSTICE ON THE MONTOGOMERY COUNTY SCHOOL SYSTEM.  INDEED THE RECORD
IS FILLED WITH STATEMENTS BY JUDGE JOHNSON SHOWING HIS FULL
UNDERSTANDING OF THE FACT THAT, AS THIS COURT ALSO HAS RECOGNIZED, IN
THIS FIELD THE WAY MUST ALWAYS BE LEFT OPEN FOR EXPERIMENTATION.  /6/ 

JUDGE JOHNSON'S ORDER NOW BEFORE US WAS ADOPTED IN THE SPIRIT OF
THIS COURT'S OPINION IN GREEN V. COUNTY SCHOOL BOARD, SUPRA, AT 439, IN
THAT HIS PLAN "PROMISES REALISTICALLY TO WORK, AND PROMISES
REALISTICALLY TO WORK NOW."  THE MODIFICATIONS ORDERED BY THE PANEL OF
THE COURT OF APPEALS, WHILE OF COURSE NOT INTENDED TO DO SO, WOULD, WE
THINK, TAKE FROM THE ORDER SOME OF ITS CAPACITY TO EXPEDITE, BY MEANS
OF SPECIFIC COMMANDS, THE DAY WHEN A COMPLETELY UNIFIED, UNITARY,
NONDISCRIMINATORY SCHOOL SYSTEM BECOMES A REALITY INSTEAD OF A HOPE. 
WE BELIEVE IT BEST TO LEAVE JUDGE JOHNSON'S ORDER AS WRITTEN RATHER
THAN AS MODIFIED BY THE 2-1 PANEL, PARTICULARLY IN VIEW OF THE FACT
THAT THE COURT OF APPEALS AS A WHOLE WAS EVENLY DIVIDED ON THIS
SUBJECT.  WE ALSO BELIEVE THAT UNDER ALL THE CIRCUMSTANCES OF THIS CASE
WE FOLLOW THE ORIGINAL PLAN OUTLINED IN BROWN II, AS BROUGHT UP TO DATE
BY THIS COURT'S OPINIONS IN GREEN V. COUNTY SCHOOL BOARD, SUPRA, AND
GRIFFIN V. SCHOOL BOARD, 377 U.S. 218, 233-234 (1964), BY ACCEPTING THE
MORE SPECIFIC AND EXPEDITIOUS ORDER OF JUDGE JOHNSON, WHOSE PATIENCE
AND WISDOM ARE WRITTEN FOR ALL TO SEE AND READ ON THE PAGES OF THE FIVE
YEAR RECORD BEFORE US. 

IT IS GOOD TO BE ABLE TO DECIDE A CASE WITH THE FEELINGS WE HAVE
ABOUT THIS ONE.  THE DIFFERENCES BETWEEN THE PARTIES ARE EXCEEDINGLY
NARROW.  RESPONDENTS, MEMBERS OF THE MONTGOMERY COUNTY SCHOOL BOARD,
STATE CLEARLY IN THEIR BRIEF, "THESE RESPONDENTS RECOGNIZE THEIR
AFFIRMATIVE RESPONSIBILITY TO PROVIDE A SEGREGATED, UNITARY AND
NONRACIAL SCHOOL SYSTEM.  THESE RESPONDENTS RECOGNIZE THEIR
RESPONSIBILITY TO ASSIGN TEACHERS WITHOUT REGARD TO RACE SO THAT
SCHOOLS THROUGHOUT THE SYSTEM ARE NOT RACIALLY IDENTIFIABLE BY THEIR
FACULTIES.  . . . FACULTIES.  . . . "  BRIEF FOR RESPONDENTS 11-12. 
PETITIONERS, ON THE OTHER HAND, DO NOT ARGUE FOR PRECISELY EQUAL RATIOS
IN EVERY SINGLE SCHOOL UNDER ALL CIRCUMSTANCES.  AS THE UNITED STATES,
PETITIONER NO. 798, RECOGNIZES IN ITS BRIEF, THE DISTRICT COURT'S ORDER
"IS DESIGNED AS A REMEDY FOR PAST RACIAL ASSIGNMENT.  . . . WE DO NOT,
IN OTHER WORDS, ARGUE THERE THAT RACIALLY BALANCED FACULTIES ARE
CONSTITUTIONALLY OR LEGALLY REQUIRED."  BRIEF FOR THE UNITED STATES
13.  IN SHORT, THE MONTGOMERY COUNTY SCHOOL BOARD, AND ITS COUNSEL,
ASSERT THEIR PURPOSE TO BRING ABOUT A RACIALLY INTEGRATED SCHOOL SYSTEM
AS EARLY AS PRACTICABLE IN GOOD-FAITH OBEDIENCE TO THIS COURT'S
DECISIONS.  BOTH THE DISTRICT JUDGE AND THE COURT OF APPEALS HAVE
ACCORDED TO THE PARTIES AND THEIR COUNSEL COURTEOUS AND PATIENT
CONSIDERATION; THERE IS NO SIGN OF LACK OF INTEREST IN THE CAUSE OF
EITHER JUSTICE OR EDUCATION IN THE VIEWS MAINTAINED BY ANY OF THE
PARTIES OR IN THE ORDERS ENTERED BY EITHER OF THE COURTS BELOW. 
DESPITE THE FACT THAT THE INDIVIDUAL PETITIONERS IN THIS LITIGATION
HAVE WITH SOME REASON ARGUED THAT JUDGE JOHNSON SHOULD HAVE GONE
FARTHER TO PROTECT THEIR RIGHTS THAN HE DID, WE APPROVE HIS ORDER AS HE
WROTE IT.  THIS, WE BELIEVE, IS THE BEST COURSE WE CAN TAKE IN THE
INTEREST OF THE PETITIONERS AND THE PUBLIC SCHOOL SYSTEM OF ALABAMA. 
WE HOPE AND BELIEVE THAT THIS ORDER AND THE APPROVAL WE NOW GIVE IT
WILL CARRY ALABAMA A LONG DISTANCE ON ITS WAY TOWARD OBEDIENCE TO THE
LAW OF THE LAND AS WE HAVE DECLARED IT IN THE TWO BROWN CASES AND THOSE
THAT HAVE FOLLOWED THEM. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASES ARE
REMANDED WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

              IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 997, CARR ET AL. V. MONTOGOMERY COUNTY BOARD
OF EDUCATION ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

/1A/  THE DISSENT FROM THE ORIGINAL PANEL OPINION IS REPORTED AT 402
F.2D 782. 

/2/  THE DISSENTS FROM THE DENIAL EN BANC OF THE PETITION FOR
REHEARING ARE REPORTED AT 402 F.2D,AT 784, 787. 

/3/  A SUBSTANTIAL PART OF THE HISTORY OF THE CONTINUED SUPPORT BY
ALABAMA'S GOVERNOR AND OTHER STATE OFFICIALS FOR ITS DUAL SYSTEM OF
SCHOOLS, COMPLETELY SEPARATING WHITE AND NONWHITE STUDENTS, FACULTY,
AND STAFF, CAN BE FOUND IN THE OPINION OF THE THREE-JUDGE COURT FOR THE
MIDDLE DISTRICT OF ALABAMA IN LEE V. MACON COUNTY BOARD OF EDUCATION,
267 F.SUPP.  458 (1967), AFFIRMED BY THIS COURT UNDER THE TITLE OF
WALLACE V. UNITED STATES, 239 U.S. 215 (1967). 

/4/  THESE ORDERS WERE REPORTED AS FOLLOWS:  MAY 18, 1965, 10 RACE
REL.L.REP.  582; MARCH 22, 1966, 253 F.SUPP.  306; AUGUST 18, 1966, 11
RACE REL.L.REP.  1716; JUNE 1, 1967, 12 RACE REL.L.REP.  1200. 

/5/  THE COURT OF APPEALS QUOTED THE FOLLOWING EXCERPT FROM THE
TESTIMONY OF ASSOCIATE SUPERINTENDENT W. S. GARRETT: 

"Q.  WELL, UNDER YOUR PLAN, WHEN DO YOU ESTIMATE THAT FACULTY
DESEGREGATION WILL BE FINALLY ACCOPLISHED IN TERMS OF THE OBJECTIVE OF
THE COURT ORDER REMOVING . . . 

"A.  WELL, NOW, THAT IS SOMETHING I DON'T KNOW, BECAUSE I DON'T KNOW
WHAT THE OBJECTIVES OF THE COURT ORDER ARE.  THAT HAS NEVER BEEN LAID
DOWN IN ANY PERCENTAGE FASHION THAT I KNOW OF.  IT SAYS THAT YOU WILL
HAVE REASONABLE DESEGREGATION OF FACULTY AND THAT YOU WILL STIVE TOWARD
HAVING EACH FACULTY NOT RECOGNIZABLE AS BEING STAFFED FOR A PARTICULAR
RACE.  THAT IS WHAT I GET OUT OF IT. 

"Q.  WELL, LET . . . 

"A.  SO I . . . I CAN'T . . . THIS COURT ORDER IS IN FAIRLY GENERAL
TERMS; I CAN'T ANSWER THAT QUESTION. 

"Q.  WELL, YOU MADE THE STATEMENT ABOUT HAVING SCHOOLS STAFFED SO
THAT THEY WILL NOT BE RECOGNIZABLE AS FOR A PARTICULAR RACE; WHEN DO
YOU EXPECT THAT WILL BE ACCOMPLISHED? 

"A.  WELL, THAT WOULD DEPEND ON WHAT THE BOARD'S DEFINITION OF THAT
IS, THE COURT'S DEFINITION OF THAT. 

"Q.  DO YOU HAVE A DEFINITION OF THAT? 

"A.  NOT AT THIS POINT; WE HAVE DISCUSSED THAT MANY TIMES, AND I DO
NOT HAVE A DEFINITION OF . . . OF WHAT THAT WOULD MEAN. 

"Q.  NO ONE HAS TOLD YOU, GIVEN YOU A DEFINITION IN TERMS OF
MECHANICS, IN TERMS OF NUMBERS, NONE OF YOUR SUPERIORS? 

"A.  NO, AS FAR AS I KNOW, NO OTHER SCHOOL PERSONNEL MAN IN AMERICA
HAS.  I HAVE TALKED TO MANY OF THEM.  WHAT WE ARE STRIVING TO DI IS TO
MAKE PROGRESS AND KEEP GOING AND HOPE THAT SOMEWHERE ALONG THE LINE WE
WILL HAVE ACHIEVED THE . . . WHAT THE COURT HAS IN MIND.  BUT IF YOU
WILL LOOK AT THAT COURT ORDER, YOU WILL SEE IT DOESN'T LAY DOWN THE
PRECISE TERMS EXACTLY WHAT THAT MEANS; IT IS A BROAD DEFINITION." 

/6/  AS WE STATED IN GREEN V. COUNTY SCHOOL BOARD, SUPRA, AT 439:
"THERE IS NO UNIVERSAL ANSWER TO COMPLEX PROBLEMS OF DESEGREGATION;
THERE IS OBVIOUSLY NO ONE PLAN THAT WILL DO THE JOB IN EVERY CASE.  THE
MATTER MUST BE ASSESSED IN LIGHT OF THE CIRCUMSTANCES PRESENT AND THE
OPTIONS AVAILABLE IN EACH INSTANCE.  IT IS INCUMBENT UPON THE SCHOOL
BOARD TO ESTABLISH THAT ITS PROPOSED PLAN PROMISES MEANINGFUL AND
IMMEDIATE PROGRESS TOWARD DISESTABLISHING STATE-IMPOSED SEGREGATION. 
IT IS INCUMBENT UPON THE DISTRICT COURT TO WEIGH THAT CLAIM IN LIGHT OF
THE FACTS AT HAND AND IN LIGHT OF ANY ALTERNATIVES WHICH MAY BE SHOWN
AS FEASIBLE AND MORE PROMISING IN THEIR EFFECTIVENESS." 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES IN
NO. 798.  WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL LEONARD
AND DEPUTY ASSISTANT ATTORNEY GENERAL LEWIN.  JACK GREENBERG ARGUED THE
CAUSE FOR PETITIONERS IN NO. 997.  WITH HIM ON THE BRIEF WERE FRED D.
GRAY, JAMES M. NABRIT III, MELVYN ZARR, FRANKLIN E. WHITE, AND
ELIZABETH B. DUBOIS. 

JOSEPH D. PHELPS ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS
IN BOTH CASES. 
..END :













BOYKIN V. ALABAMA, 395 U.S. 238 


       BOYKIN V. ALABAMA. 

        CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

        NO. 642.  ARGUED MARCH 4, 1969.-- DECIDED JUNE 2, 1969. 


PETITIONER, A 27-YEAR-OLD NEGRO, WHO WAS REPRESENTED BY APPOINTED
COUNSEL, PLEADED GUILTY TO FIVE INDICTMENTS FOR COMMON-LAW ROBBERY. 
THE JUDGE ASKED NO QUESTIONS OF PETITIONER CONCERNING HIS PLEA, AND
PETITIONER DID NOT ADDRESS THE COURT.  UNDER ALABAMA LAW PROVIDING FOR
A JURY TRIAL TO FIX PUNISHMENT ON A GUILTY PLEA, THE PROSECUTION
PRESENTED EYEWITNESS TESTIMONY AND PETITIONER'S COUNSEL CURSORILY CROSS
EXAMINED.  PETITIONER DID NOT TESTIFY; NO CHARACTER OR BACKGROUND
TESTIMONY WAS PRESENTED FOR HIM; AND THERE WAS NOTHING TO INDICATE THAT
HE HAD A PRIOR CRIMINAL RECORD.  THE JURY FOUND PETITIONER GUILTY AND
SENTENCED HIM TO DEATH ON EACH INDICTMENT.  THE ALABAMA SUPREME COURT
REVIEWED THE SENTENCES UNDER THE STATE'S AUTOMATIC APPEAL STATUTE FOR
CAPITAL CASES, WHICH REQUIRES THE REVIEWING COURT TO COMB THE RECORD
FOR PREJUDICIAL ERROR EVEN THOUGH NOT RAISED BY COUNSEL.  PETITIONER
DID NOT RAISE THE QUESTION OF THE VOLUNTARINESS OF HIS GUILTY PLEA AND
THE STATE SUPREME COURT DID NOT PASS ON THAT QUESTION, THOUGH A
MAJORITY OF THE COURT EXPLICITLY CONSIDERED IT IN AFFIRMING HIS
SENTENCES OF DEATH.  HELD: 

1.  THIS COURT HAS JURISDICTION TO REVIEW THE QUESTION OF THE
VOLUNTARY CHARACTER OF THE PLEA SINCE THE PLAIN ERROR OF THE TRIAL
JUDGE'S ACCEPTANCE OF PETITIONER'S GUILTY PLEA ABSENT AN AFFIRMATIVE
SHOWING THAT THE PLEA WAS INTELLIGENT AND VOLUNTARY WAS BEFORE THE
STATE COURT UNDER THE ALABAMA AUTOMATIC APPEAL STATUTE.  PP. 241-242. 

2.  A WAIVER OF THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION
GUARANTEED BY THE FIFTH AMENDMENT AND APPLICABLE TO THE STATES BY THE
FOURTEENTH; OF THE RIGHT TO TRIAL BY JURY; AND THE RIGHT TO CONFRONT
ONE'S ACCUSERS-- ALL OF WHICH ARE INVOLVED WHEN A GUILTY PLEA IS
ENTERED IN A STATE CRIMINAL TRIAL-- CANNOT BE PRESUMED FROM A SILENT
RECORD.  PP. 242-243. 

3.  ACCEPTANCE OF THE PETITIONER'S GUILTY PLEA UNDER THE
CIRCUMSTANCES OF THIS CASE CONSTITUTED REVERSIBLE ERROR BECAUSE THE
RECORD DOES NOT DISCLOSE THAT THE PETITIONER VOLUNTARILY AND
UNDERSTANDINGLY ENTERED HIS PLEA OF GUILTY.  PP. 243-244. 

281 ALA. 659, 207 SO.2D 412, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN THE SPRING OF 1966, WITHIN THE PERIOD OF A FORTNIGHT, A SERIES OF
ARMED ROBBERIES OCCURRED IN MOBILE, ALABAMA.  THE VICTIMS, IN EACH
CASE, WERE LOCAL SHOPKEEPERS OPEN AT NIGHT WHO WERE FORCED BY A GUNMAN
TO HAND OVER MONEY.  WHILE ROBBING ONE GROCERY STORE, THE ASSAILANT
FIRED HIS GUN ONCE, SENDING A BULLET THROUGH A DOOR INTO THE CEILING. 
A FEW DAYS EARLIER IN A DRUGSTORE, THE ROBBER HAD ALLOWED HIS GUN TO
DISCHARGE IN SUCH A WAY THAT THE BULLET, ON RICOCHET FROM THE FLOOR,
STRUCK A CUSTOMER IN THE LEG.  SHORTLY THEREAFTER, A LOCAL GRAND JURY
RETURNED FIVE INDICTMENTS AGAINST PETITIONER, A 27-YEAR-OLD NEGRO, FOR
COMMON-LAW ROBBERY-- AN OFFENSE PUNISHABLE IN ALABAMA BY DEATH. 

BEFORE THE MATTER CAME TO TRIAL, THE COURT DETERMINED THAT
PETITIONER WAS INDIGENT AND APPOINTED COUNSEL /1/  TO REPRESENT HIM. 
THREE DAYS LATER, AT HIS ARRAIGNMENT, PETITIONER PLEADED GUILTY TO ALL
FIVE INDICTMENTS.  SO FAR AS THE RECORD SHOWS, THE JUDGE ASKED NO
QUESTIONS OF PETITIONER CONCERNING HIS PLEA, AND PETITIONER DID NOT
ADDRESS THE COURT. 

TRIAL STRATEGY MAY OF COURSE MAKE A PLEA OF GUILTY SEEM THE
DESIRABLE COURSE.  BUT THE RECORD IS WHOLLY SILENT ON THAT POINT AND
THROWS NO LIGHT ON IT. 

ALABAMA PROVIDES THAT WHEN A DEFENDANT PLEADS GUILTY, "THE COURT
MUST CAUSE THE PUNISHMENT TO BE DETERMINED BY A JURY" (EXCEPT WHERE IT
IS REQUIRED TO BE FIXED BY THE COURT) AND MAY "CAUSE WITNESSES TO BE
EXAMINED, TO ASCERTAIN THE CHARACTER OF THE OFFENSE."  ALA. CODE, TIT.
15, SEC. 277 (1958).  IN THE PRESENT CASE A TRIAL OF THAT DIMENSION WAS
HELD, THE PROSECUTION PRESENTING ITS CASE LARGELY THROUGH EYEWITNESS
TESTIMONY.  ALTHOUGH COUNSEL FOR PETITIONER ENGAGED IN CURSORY CROSS
EXAMINATION, PETITIONER NEITHER TESTIFIED HIMSELF NOR PRESENTED
TESTIMONY CONCERNING HIS CHARACTER AND BACKGROUND.  THERE WAS NOTHING
TO INDICATE THAT HE HAD A PRIOR CRIMINAL RECORD. 

IN INSTRUCTING THE JURY, THE JUDGE STRESSED THAT PETITIONER HAD
PLEADED GUILTY IN FIVE CASES OF ROBBERY, /2/  DEFINED AS "THE FELONIOUS
TAKING OF MONEY . . . FROM ANOTHER AGAINST HIS WILL . . . BY VIOLENCE
OR BY PUTTING HIM IN FEAR . . . (CARRYING) FROM TEN YEARS MINIMUM IN
THE PENITENTIARY TO THE SUPREME PENALTY OF DEATH BY ELECTROCUTION." 
THE JURY, UPON DELIBERATION, FOUND PETITIONER GUILTY AND SENTENCED HIM
SEVERALLY TO DIE ON EACH OF THE FIVE INDICTMENTS. 

TAKING AN AUTOMATIC APPEAL TO THE ALABAMA SUPREME COURT, PETITIONER
ARGUED THAT A SENTENCE OF DEATH FOR COMMON-LAW ROBBERY WAS CRUEL AND
UNUSUAL PUNISHMENT WITHIN THE MEANING OF THE FEDERAL CONSTITUTION, A
SUGGESTION WHICH THAT COURT UNANIMOUSLY REJECTED.  281 ALA. 659, 207
SO.2D 412.  ON THEIR OWN MOTION, HOWEVER, FOUR OF THE SEVEN JUSTICES
DISCUSSED THE CONSTITUTIONALITY OF THE PROCESS BY WHICH THE TRIAL JUDGE
HAD ACCEPTED PETITIONER'S GUILTY PLEA.  FROM THE ORDER AFFIRMING THE
TRIAL COURT, THREE JUSTICES DISSENTED ON THE GROUND THAT THE RECORD WAS
INADEQUATE TO SHOW THAT PETITIONER HAD INTELLIGENTLY AND KNOWINGLY
PLEADED GUILTY.  THE FOURTH MEMBER CONCURRED SEPARATELY, CONCEDING THAT
"A TRIAL JUDGE SHOULD NOT ACCEPT A GUILTY PLEA UNLESS HE HAS DETERMINED
THAT SUCH A PLEA WAS VOLUNTARILY AND KNOWINGLY ENTERED BY THE
DEFENDANT," BUT REFUSING "(FOR AUGHT APPEARING" "TO PRESUME THAT THE
TRIAL JUDGE FAILED TO DO HIS DUTY."  281 ALA.,AT 662, 663, 207 SO.2D,AT
414, 415.  WE GRANTED CERTIORARI.  393 U.S. 820. 

RESPONDENT DOES NOT SUGGEST THAT WE LACK JURISDICTION TO REVIEW THE
VOLUNTARY CHARACTER OF PETITIONER'S GUILTY PLEA BECAUSE HE FAILED TO
RAISE THAT FEDERAL QUESTION BELOW AND THE STATE COURT FAILED TO PASS
UPON IT.  /3/  BUT THE QUESTION WAS RAISED ON ORAL ARGUMENT AND WE
CONCLUDE THAT IT IS PROPERLY PRESENTED.  THE VERY ALABAMA STATUTE (ALA.
CODE, TIT. 15, SEC. 382(10) (1958)) THAT PROVIDES AUTOMATIC APPEAL IN
CAPITAL CASES ALSO REQUIRES THE REVIEWING COURT TO COMB THE RECORD FOR
"ANY ERROR PREJUDICIAL TO THE APPELLANT, EVEN THOUGH NOT CALLED TO OUR
ATTENTION IN BRIEF OF COUNSEL."  LEE V. STATE, 265 ALA. 623, 630, 93
SO.2D 757, 763.  THE AUTOMATIC APPEAL STATUTE "IS THE ONLY PROVISION
UNDER THE PLAIN ERROR DOCTRINE OF WHICH WE ARE AWARE IN ALABAMA
CRIMINAL APPELLATE REVIEW."  DOUGLAS V. STATE, 42 ALA.APP.  314, 331,
N. 6, 163 SO.2D 477, 494, N. 6.  IN THE WORDS OF THE ALABAMA SUPREME
COURT: 

     "PERHAPS IT IS WELL TO NOTE THAT IN REVIEWING A DEATH CASE

  UNDER THE AUTOMATIC APPEAL STATUTE, . . . WE MAY CONSIDER ANY

  TESTIMONY THAT WAS SERIOUSLY PREJUDICIAL TO THE RIGHTS OF THE

  APPELLANT AND MAY REVERSE THEREON, EVEN THOUGH

NO LAWFUL OBJECTION OR EXCEPTION WAS MADE THERETO.  (CITATIONS
OMITTED.)  OUR REVIEW IS NOT LIMITED TO THE MATTERS BROUGHT TO

  OUR ATTENTION IN BRIEF OF COUNSEL."  DUNCAN V. STATE, 278 ALA.
145, 157, 176 SO.2D 840, 851.  IT WAS ERROR, PLAIN ON THE FACE OF THE
RECORD, FOR THE TRIAL JUDGE TO ACCEPT PETITIONER'S GUILTY PLEA WITHOUT
AN AFFIRMATIVE SHOWING THAT IT WAS INTELLIGENT AND VOLUNTARY.  THAT
ERROR, UNDER ALABAMA PROCEDURE, WAS PROPERLY BEFORE THE COURT BELOW AND
CONSIDERED EXPLICITLY BY A MAJORITY OF THE JUSTICES AND IS PROPERLY
BEFORE US ON REVIEW. 

A PLEA OF GUILTY IS MORE THAN A CONFESSION WHICH ADMITS THAT THE
ACCUSED DID VARIOUS ACTS; IT IS ITSELF A CONVICTION; NOTHING REMAINS
BUT TO GIVE JUDGMENT AND DETERMINE PUNISHMENT.  SEE KERCHEVAL V. UNITED
STATES, 274 U.S. 220, 223.  ADMISSIBILITY OF A CONFESSION MUST BE BASED
ON A "RELIABLE DETERMINATION ON THE VOLUNTARINESS ISSUE WHICH SATISFIES
THE CONSTITUTIONAL RIGHTS OF THE DEFENDANT."  JACKSON V. DENNO, 378
U.S. 368, 387.  THE REQUIREMENT THAT THE PROSECUTION SPREAD ON THE
RECORD THE PREREQUISITES OF A VALID WAIVER IS NO CONSTITUTIONAL
INNOVATION.  IN CARNLEY V. COCHRAN, 369 U.S. 506, 516, WE DEALT WITH A
PROBLEM OF WAIVER OF THE RIGHT TO COUNSEL, A SIXTH AMENDMENT RIGHT.  WE
HELD:  "PRESUMING WAIVER FROM A SILENT RECORD IS PERMISSIBLE.  THE
RECORD MUST SHOW, OR THERE MUST BE AN ALLEGATION AND EVIDENCE WHICH
SHOW, THAT AN ACCUSED WAS OFFERED COUNSEL BUT INTELLIGENTLY AND
UNDERSTANDINGLY REJECTED THE OFFER.  ANYTHING LESS IS NOT WAIVER." 

WE THINK THAT THE SAME STANDARD MUST BE APPLIED TO DETERMINING
WHETHER A GUILTY PLEA IS VOLUNTARILY MADE.  FOR, AS WE HAVE SAID, A
PLEA OF GUILTY IS MORE THAN AN ADMISSION OF CONDUCT; IT IS A
CONVICTION.  /4/  IGNORANCE, INCOMPREHENSION, COERCION, TERROR,
INDUCEMENTS, SUBTLE OR BLATANT THREATS MIGHT BE A PERFECT COVER-UP OF
UNCONSTITUTIONALITY.  THE QUESTION OF AN EFFECTIVE WAIVER OF A FEDERAL
CONSTITUTIONAL RIGHT IN A PROCEEDING IS OF COURSE GOVERNED BY FEDERAL
STANDARDS.  DOUGLAS V. ALABAMA, 380 U.S. 415, 422. 

SEVERAL FEDERAL CONSTITUTIONAL RIGHTS ARE INVOLVED IN A WAIVER THAT
TAKES PLACE WHEN A PLEA OF GUILTY IS ENTERED IN A STATE CRIMINAL
TRIAL.  FIRST, IS THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION
GUARANTEED BY THE FIFTH AMENDMENT AND APPLICABLE TO THE STATES BY
REASON OF THE FOURTEENTH.  MALLOY V. HOGAN, 378 U.S. 1.  SECOND, IS THE
RIGHT TO TRIAL BY JURY.  DUNCAN V. LOUISIANA, 391 U.S. 145.  THIRD, IS
THE RIGHT TO CONFRONT ONE'S ACCUSERS.  POINTER V. TEXAS, 380 U.S. 400. 
WE CANNOT PRESUME A WAIVER OF THESE THREE IMPORTANT FEDERAL RIGHTS FROM
A SILENT RECORD.  /5/ 

WHAT IS AT STAKE FOR AN ACCUSED FACING DEATH OR IMPRISONMENT DEMANDS
THE UTMOST SOLICITUDE OF WHICH COURTS ARE CAPABLE IN CANVASSING THE
MATTER WITH THE ACCUSED TO MAKE SURE HE HAS A FULL UNDERSTANDING OF
WHAT THE PLEA CONNOTES AND OF ITS CONSEQUENCES.  WHEN THE JUDGE
DISCHARGES THAT FUNCTION, HE LEAVES A RECORD ADEQUATE FOR ANY REVIEW
THAT MAY BE LATER SOUGHT /6/  (GARNER V. LOUISIANA, 368 U.S. 157, 173;
SPECHT V. PATTERSON, 386 U.S. 605, 610), AND FORESTALLS THE SPIN-OFF OF
COLLATERAL PROCEEDINGS THAT SEEK TO PROBE MURKY MEMORIES.  /7/ 

THE THREE DISSENTING JUSTICES IN THE ALABAMA SUPREME COURT STATED
THE LAW ACCURATELY WHEN THEY CONCLUDED THAT THERE WAS REVERSIBLE ERROR
"BECAUSE THE RECORD DOES NOT DISCLOSE THAT THE DEFENDANT VOLUNTARILY
AND UNDERSTANDINGLY ENTERED HIS PLEAS OF GUILTY."  281 ALA.,AT 663, 207
SO.2D,AT 415. 

              REVERSED. 

/1/  HAMILTON V. ALABAMA, 368 U.S. 52; ALA. CODE, TIT. 15, SECS.
318(1)-(12) (SUPP. 1967). 

/2/  THE ELEMENTS OF ROBBERY IN ALABAMA ARE DERIVED FROM THE COMMON
LAW, BUT THE POSSIBLE PENALTIES ARE FIXED BY STATUTE.  ALA. CODE, TIT.
14, SEC. 415 (1958). 

/3/  THIS IS UNLIKE CARDINALE V. LOUISIANA, 394 U.S. 437, IN WHICH
THE STATE COURT WAS PERHAPS UNACQUAINTED WITH THE FEDERAL QUESTION AT
ISSUE.  FOR, AS ALREADY STATED, FOUR OF THE SEVEN JUSTICES ON THE COURT
BELOW (A MAJORITY) DISCUSSED THE MATTER AND ITS IMPLICATIONS FOR
ALABAMA LAW. 

/4/  "A PLEA OF GUILTY IS MORE THAN A VOLUNTARY CONFESSION MADE IN
OPEN COURT.  IT ALSO SERVES AS A STIPULATION THAT NO PROOF BY THE
PROSECUTION NEED BE ADVANCED.  . . . IT SUPPLIED BOTH EVIDENCE AND
VERDICT, ENDING CONTROVERSY."  WOODARD V. STATE, 42 ALA.APP.  552, 558,
171 SO.2D 462, 469. 

/5/  IN THE FEDERAL REGIME WE HAVE RULE 11 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE WHICH GOVERNS THE DUTY OF THE TRIAL JUDGE BEFORE
ACCEPTING A GUILTY PLEA.  SEE MCCARTHY V. UNITED STATES, 394 U.S. 459. 
WE SAID IN THAT CASE: 

"A DEFENDANT WHO ENTERS SUCH A PLEA SIMULTANEOUSLY WAIVES SEVERAL
CONSTITUTIONAL RIGHTS, INCLUDING HIS PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION, HIS RIGHT TO TRIAL BY JURY, AND HIS RIGHT TO CONFRONT
HIS ACCUSERS.  FOR THIS WAIVER TO BE VALID UNDER THE DUE PROCESS
CLAUSE, IT MUST BE 'AN INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A
KNOWN RIGHT OR PRIVILEGE.'  JOHNSON V. ZERBST, 304 U.S. 458, 464
(1938).  CONSEQUENTLY, IF A DEFENDANT'S GUILTY PLEA IS NOT EQUALLY
VOLUNTARY AND KNOWING, IT HAS BEEN OBTAINED IN VIOLATION OF DUE PROCESS
AND IS THEREFORE VOID.  MOREOVER, BECAUSE A GUILTY PLEA IS AN ADMISSION
OF ALL THE ELEMENTS OF A FORMAL CRIMINAL CHARGE, IT CANNOT BE TRULY
VOLUNTARY UNLESS THE DEFENDANT POSSESSES AN UNDERSTANDING OF THE LAW IN
RELATION TO THE FACTS."  ID., AT 466. 

/6/  AMONG THE STATES REQUIRING THAT AN EFFECTIVE WAIVER OF THE
RIGHT TO PLEAD NOT GUILTY APPEAR AFFIRMATIVELY IN THE RECORD ARE
COLORADO, COLO. REV. STAT. ANN. SEC. 39-7-8; ILLINOIS, ILL. REV. STAT.,
C. 38, SECS. 113-1 TO 114-14; MISSOURI, STATE V. BLAYLOCK, 394 S.W.2D
364 (1965); NEW YORK, PEOPLE V. SEATON, 19 N.Y.2D 404, 407, 227 N.E.2D
294, 295 (1967); WISCONSIN, STATE V. BURKE, 22 WIS.2D 486, 494, 126
N.W.2D 91, 96 (1964); AND WASHINGTON, WOODS V. RHAY, 68 WASH.2D 601,
605, 414 P.2D 601, 604 (1966). 

/7/  "A MAJORITY OF CRIMINAL CONVICTIONS ARE OBTAINED AFTER A PLEA
OF GUILTY.  IF THESE CONVICTIONS ARE TO BE INSULATED FROM ATTACK, THE
TRIAL COURT IS BEST ADVISED TO CONDUCT AN ON THE RECORD EXAMINATION OF
THE DEFENDANT WHICH SHOULD INCLUDE, INTER ALIA, AN ATTEMPT TO SATISFY
ITSELF THAT THE DEFENDANT UNDERSTANDS THE NATURE OF THE CHARGES, HIS
RIGHT TO A JURY TRIAL, THE ACTS SUFFICIENT TO CONSTITUTE THE OFFENSES
FOR WHICH HE IS CHARGED AND THE PERMISSIBLE RANGE OF SENTENCES." 
COMMONWEALTH EX REL. WEST V. RUNDLE, 428 PA. 102, 105-106, 237 A.2D
196, 197-198 (1968). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

THE COURT TODAY HOLDS THAT PETITIONER BOYKIN WAS DENIED DUE PROCESS
OF LAW, AND THAT HIS ROBBERY CONVICTIONS MUST BE REVERSED OUTRIGHT,
SOLELY BECAUSE "THE RECORD (IS) INADEQUATE TO SHOW THAT PETITIONER . .
. INTELLIGENTLY AND KNOWINGLY PLEADED GUILTY."  ANTE, AT 241.  THE
COURT THUS IN EFFECT FASTENS UPON THE STATES, AS A MATTER OF FEDERAL
CONSTITUTIONAL LAW, THE RIGID PROPHYLACTIC REQUIREMENTS OF RULE 11 OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE.  IT DOES SO IN CIRCUMSTANCES
WHERE THE COURT ITSELF HAS ONLY VERY RECENTLY HELD APPLICATION OF RULE
11 TO BE UNNECESSARY IN THE FEDERAL COURTS.  SEE HALLIDAY V. UNITED
STATES, 394 U.S. 831 (1969).  MOREOVER, THE COURT DOES ALL THIS AT THE
BEHEST OF A PETITIONER WHO HAS NEVER AT ANY TIME ALLEGED THAT HIS
GUILTY PLEA WAS INVOLUNTARY OR MADE WITHOUT KNOWLEDGE OF THE
CONSEQUENCES.  I CANNOT POSSIBLY SUBSCRIBE TO SO BIZARRE A RESULT. 

        I 

IN JUNE 1966, AN ALABAMA GRAND JURY RETURNED FIVE INDICTMENTS
AGAINST PETITIONER BOYKIN, ON FIVE SEPARATE CHARGES OF COMMON-LAW
ROBBERY.  HE WAS DETERMINED TO BE INDIGENT, AND ON JULY 11 AN ATTORNEY
WAS APPOINTED TO REPRESENT HIM.  PETITIONER WAS ARRAIGNED THREE DAYS
LATER.  AT THAT TIME, IN OPEN COURT AND IN THE PRESENCE OF HIS
ATTORNEY, PETITIONER PLEADED GUILTY TO ALL FIVE INDICTMENTS.  THE
RECORD DOES NOT SHOW WHAT INQUIRIES WERE MADE BY THE ARRAIGNING JUDGE
TO CONFIRM THAT THE PLEA WAS MADE VOLUNTARILY AND KNOWINGLY.  /1/ 

PETITIONER WAS NOT SENTENCED IMMEDIATELY AFTER THE ACCEPTANCE OF HIS
PLEA.  INSTEAD, PURSUANT TO AN ALABAMA STATUTE, THE COURT ORDERED THAT
"WITNESSES . . . BE EXAMINED, TO ASCERTAIN THE CHARACTER OF THE
OFFENSE," IN THE PRESENCE OF A JURY WHICH WOULD THEN FIX PETITIONER'S
SENTENCE.  SEE ALA. CODE, TIT. 14, SEC. 415 (1958); TIT. 15 SEC. 277. 
THAT PROCEEDING OCCURRED SOME TWO MONTHS AFTER PETITIONER PLEADED
GUILTY.  DURING THAT PERIOD, PETITIONER MADE NO ATTEMPT TO WITHDRAW HIS
PLEA.  PETITIONER WAS PRESENT IN COURT WITH HIS ATTORNEY WHEN THE
WITNESSES WERE EXAMINED.  PETITIONER HEARD THE JUDGE STATE THE LEMENTS
OF COMMON-LAW ROBBERY AND HEARD HIM ANNOUNCE THAT PETITIONER HAD
PLEADED GUILTY TO THAT OFFENSE AND MIGHT BE SENTENCED TO DEATH.  AGAIN,
PETITIONER MADE NO EFFORT TO WITHDRAW HIS PLEA.     ON HIS APPEAL TO
THE ALABAMA SUPREME COURT, PETITIONER DID NOT CLAIM THAT HIS GUILTY
PLEA WAS MADE INVOLUNTARILY OR WITHOUT FULL KNOWLEDGE OF THE
CONSEQUENCES.  IN FACT, PETITIONER RAISED NO QUESTIONS AT ALL
CONCERNING THE PLEA.  /2/  IN HIS PETITION AND BRIEF IN THIS COURT, AND
IN ORAL ARGUMENT BY COUNSEL, PETITIONER HAS NEVER ASSERTED THAT THE
PLEA WAS COERCED OR MADE IN IGNORANCE OF THE CONSEQUENCES. 
II 

AGAINST THIS BACKGROUND, THE COURT HOLDS THAT THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT REQUIRES THE OUTRIGHT REVERSAL OF
PETITIONER'S CONVICTION.  THIS RESULT IS WHOLLY UNPRECEDENTED.  THERE
ARE PAST HOLDINGS OF THIS COURT TO TAKE EFFECT THAT A FEDERAL HABEAS
CORPUS PETITIONER WHO MAKES SUFFICIENTLY CREDIBLE ALLEGATIONS THAT HIS
STATE GUILTY PLEA WAS INVOLUNTARY IS ENTITLED TO A HEARING AS TO THE
TRUTH OF THOSE ALLEGATIONS.  SEE, E.G., WALEY V. JOHNSTON, 316 U.S. 101
(1942); CF. MACHIBRODA V. UNITED STATES, 368 U.S. 487 (1962).  THESE
HOLDINGS SUGGEST THAT IF EQUALLY CONVINCING ALLEGATIONS WERE MADE IN A
PETITION FOR CERTIORARI ON DIRECT REVIEW, THE PETITIONER MIGHT IN SOME
CIRCUMSTANCES BE ENTITLED TO HAVE A JUDGMENT OF AFFIRMANCE VACATED AND
THE CASE REMANDED FOR A STATE HEARING ON VOLUNTARINESS.  CF. JACKSON V.
DENNO, 378 U.S. 368, 393-394 (1964).  HOWEVER, AS HAS BEEN NOTED, THIS
PETITIONER MAKES NO ALLEGATIONS OF ACTUAL INVOLUNTARINESS. 

THE COURT'S REVERSAL IS THEREFORE PREDICATED ENTIRELY UPON THE
FAILURE OF THE ARRAIGNING STATE JUDGE TO MAKE AN "ADEQUATE" RECORD.  IN
HOLDING THAT THIS IS A GROUND FOR REVERSAL, THE COURT QUOTES COPIOUSLY
FROM MCCARTHY V. UNITED STATES, 394 U.S. 459 (1969), IN WHICH WE HELD
EARLIER THIS TERM THAT WHEN A FEDERAL DISTRICT JUDGE FAILS TO COMPLY IN
EVERY RESPECT WITH THE PROCEDURE FOR ACCEPTING A GUILTY PLEA WHICH IS
PRESCRIBED IN RULE 11 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, THE
PLEA MUST BE SET ASIDE AND THE DEFENDANT PERMITTED TO REPLEAD,
REGARDLESS OF LOWER-COURT FINDINGS THAT THE PLEA WAS IN FACT
VOLUNTARY.  WHAT THE COURT OMITS TO MENTION IS THAT IN MCCARTHY WE
STATED THAT OUR DECISION WAS BASED "SOLELY UPON OUR CONSTRUCTION OF
RULE 11," AND EXPLICITLY DISAVOWED ANY RELIANCE UPON THE CONSTITUTION. 
ID., AT 464.  THUS MCCARTHY CAN PROVIDE NO SUPPORT WHATEVER FOR TODAY'S
CONSTITUTIONAL EDICT. 

        III. 

SO FAR AS ONE CAN MAKE OUT FROM THE COURT'S OPINION, WHAT IS NOW IN
EFFECT BEING HELD IS THAT THE PROPHYLACTIC PROCEDURES OF CRIMINAL RULE
11 ARE SUBSTANTIALLY APPLICABLE TO THE STATES AS A MATTER OF FEDERAL
CONSTITUTIONAL DUE PROCESS.  IF THIS IS THE BASIS UPON WHICH BOYKIN'S
CONVICTION IS BEING REVERSED, THEN THE COURT'S DISPOSITION IS PLAINLY
OUT OF KEEPING WITH A SEQUEL CASE TO MCCARTHY, DECIDED ONLY LAST
MONTH.  FOR THE COURT HELD IN HALLIDAY V. UNITED STATES, 394 U.S. 831
(1969), THAT "IN VIEW OF THE LARGE NUMBER OF CONSTITUTIONALLY VALID
CONVICTIONS THAT MAY HAVE BEEN OBTAINED WITHOUT FULL COMPLIANCE WITH
RULE 11, WE DECLINE TO APPLY MCCARTHY RETROACTIVELY."  ID., AT 833. 
THE COURT QUITE EVIDENTLY FOUND HALLIDAY'S CONVICTION TO BE
"CONSTITUTIONALLY VALID," FOR IT AFFIRMED THE CONVICTION EVEN THOUGH
HALLIDAY'S GUILTY PLEA WAS ACCEPTED IN 1954 WIT:OUT ANY EXPLICIT
INQUIRY INTO WHETHER IT WAS KNOWINGLY AND UNDERSTANDINGLY MADE, AS NOW
REQUIRED BY PRESENT RULE 11.  IN JUSTIFICATION, THE COURT NOTED THAT
TWO LOWER COURTS HAD FOUND IN COLLATERAL PROCEEDINGS THAT THE PLEA WAS
VOLUNTARY.  THE COURT DECLARED THAT: 

"(A) DEFENDANT WHOSE PLEA HAS BEEN ACCEPTED WITHOUT FULL COMPLIANCE
WITH RULE 11 MAY STILL RESORT TO APPROPRIATE POST-CONVICTION REMEDIES
TO ATTACK HIS PLEA'S VOLUNTARINESS.  THUS, IF HIS PLEA WAS ACCEPTED
PRIOR TO OUR DECISION IN MCCARTHY, HE IS NOT WITHOUT A REMEDY TO
CORRECT CONSTITUTIONAL DEFECTS IN HIS CONVICTION."  ID., AT 833. 

IT SEEMS ELEMENTARY THAT THE FIFTH AMENDMENT DUE PROCESS TO WHICH
PETITIONER HALLIDAY WAS ENTITLED MUST BE AT LEAST AS DEMANDING AS THE
FOURTEENTH AMENDMENT PROCESS DUE PETITIONER BOYKIN.  YET PETITIONER
HALLIDAY'S FEDERAL CONVICTION HAS BEEN AFFIRMED AS "CONSTITUTIONALLY
VALID," DESPITE THE OMISSION OF ANY JUDICIAL INQUIRY OF RECORD AT THE
TIME OF HIS PLEA, BECAUSE HE INITIATED COLLATERAL PROCEEDINGS WHICH
REVEALED THAT THE PLEA WAS ACTUALLY VOLUNTARY.  PETITIONER BOYKIN, ON
THE OTHER HAND, TODAY HAS HIS ALABAMA CONVICTION REVERSED BECAUSE OF
EXACTLY THE SAME OMISSION, EVEN THOUGH HE TOO "MAY . . . RESORT TO
APPROPRIATE POST-CONVICTION REMEDIES TO ATTACK HIS PLEA'S
VOLUNTARINESS" AND THUS "IS NOT WITHOUT A REMEDY TO CORRECT
CONSTITUTIONAL DEFECTS IN HIS CONVICTION."  IN SHORT, I FIND IT UTTERLY
IMPOSSIBLE TO SQUARE TODAY'S HOLDING WITH WHAT THE COURT HAS SO
RECENTLY DONE. 

I WOULD HOLD THAT PETITIONER BOYKIN IS NOT ENTITLED TO OUTRIGHT
REVERSAL OF HIS CONVICTION SIMPLY BECAUSE OF THE "INADEQUACY" OF THE
RECORD PERTAINING TO HIS GUILTY PLEA.  FURTHER, I WOULD NOT VACATE THE
JUDGMENT BELOW AND REMAND FOR A STATE-COURT HEARING ON VOLUNTARINESS. 
FOR EVEN IF IT IS ASSUMED FOR THE SAKE OF ARGUMENT THAT PETITIONER
WOULD BE ENTITLED TO SUCH A HEARING IF HE HAD ALLEGED THAT THE PLEA WAS
INVOLUNTARY, A MATTER WHICH I FIND IT UNNECESSARY TO DECIDE, THE FACT
IS THAT HE HAS NEVER MADE ANY SUCH CLAIM.  HENCE, I CONSIDER THAT
PETITIONER'S PRESENT ARGUMENTS RELATING TO HIS GUILTY PLEA ENTITLE HIM
TO NO FEDERAL RELIEF.  /3/ 

/1/  THE RECORD STATES ONLY THAT: 

"THIS DAY IN OPEN COURT CAME THE STATE OF ALABAMA BY ITS DISTRICT
ATTORNEY AND THE DEFENDANT IN HIS OWN PROPER PERSON AND WITH HIS
ATTORNEY, EVAN AUSTILL, AND THE DEFENDANT IN OPEN COURT ON THIS DAY
BEING ARRAIGNED ON THE INDICTMENT IN THESE CASES CHARGING HIM WITH THE
OFFENSE OF ROBBERY AND PLEAD GUILTY.  APPENDIX 4. 

/2/  HOWEVER, I AM WILLING TO ACCEPT THE MAJORITY'S VIEW THAT WE DO
HAVE JURISDICTION TO CONSIDER THE QUESTION. 

/3/  PETITIONER ADVANCES TWO ADDITIONAL CONSTITUTIONAL ARGUMENTS:
THAT IMPOSITION OF THE DEATH PENALTY FOR COMMON-LAW ROBBERY IS "CRUEL
AND UNUSUAL PUNISHMENT" IN VIOLATION OF THE FOURTEENTH AMENDMENT; AND
THAT TO PERMIT A JURY TO INFLICT THE DEATH PENALTY WITHOUT ANY
"STANDARDS" TO GUIDE ITS DISCRETION AMOUNTS TO A DENIAL OF DUE
PROCESS.  I DO NOT REACH THESE ISSUES BECAUSE THE COURT HAS NOT DONE
SO. 

E. GRAHAM GIBBONS, BY APPOINTMENT OF THE COURT, 393 U.S. 931, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WAS STEPHEN A.
HOPKINS. 

DAVID W. CLARK, ASSISTANT ATTORNEY GENERAL OF ALABAMA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS MACDONALD GALLION,
ATTORNEY GENERAL. 

JACK GREENBERG, JAMES M. NABRIT II, MICHAEL MELTSNER, MELVYN ZARR,
AND ANTHONY G. AMSTERDAM FILED A BRIEF FOR THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., ET AL. AS AMICI CURIAE URGING REVERSAL. 
..END :




















HARRINGTON V. CALIFORNIA, 395 U.S. 250 


       HARRINGTON V. CALIFORNIA. 

        CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 750.  ARGUED APRIL 23, 1969.-- DECIDED JUNE 2, 1969. 


PETITIONER, WHO IS WHITE, AND THREE NEGRO CODEFENDANTS (BOSBY, RHONE,
AND COOPER) WERE TRIED FOR FIRST-DEGREE MURDER.  PETITIONER'S
STATEMENTS PLACED HIM AT THE SCENE OF THE CRIME.  HE ADMITTED THAT
BOSBY WAS THE TRIGGER MAN; THAT HE FLED WITH THE OTHER THREE; AND THAT
AFTER THE MURDER HE DYED HIS HAIR AND SHAVED OFF HIS MOUSTACHE. 
EYEWITNESSES PLACED PETITIONER AT THE SCENE OF THE CRIME, BUT SOME HAD
PREVIOUSLY SAID THAT FOUR NEGROES COMMITTED THE CRIME.  THE THREE
CODEFENDANTS CONFESSED, AND THEIR CONFESSIONS WERE INTRODUCED AT
TRIAL.  RHONE'S CONFESSION PLACED PETITIONER INSIDE THE STORE WITH A
GUN AT THE TIME OF THE CRIME.  RHONE TOOK THE STAND AND PETITIONER'S
COUNSEL CROSS-EXAMINED HIM.  BOSBY AND COOPER DID NOT TAKE THE STAND,
AND IN THEIR CONFESSIONS, WHICH MENTIONED PETITIONER (NOT BY NAME, BUT
AS "THE WHITE GUY" OR BY SIMILAR TERMS), SAID THAT THEY DID NOT SEE
"THE WHITE GUY" WITH A GUN.  ALL FOUR CODEFENDANTS WERE FOUND GUILTY OF
FIRST-DEGREE MURDER, THE CALIFORNIA COURT OF APPEAL AFFIRMED, AND THE
STATE SUPREME COURT DENIED A PETITION FOR A HEARING.  HELD:  APART FROM
THE CUMULATIVE NATURE OF THE CONFESSIONS OF THE TWO CODEFENDANTS WHO
DID NOT TAKE THE STAND, THE EVIDENCE AGAINST PETITIONER CONSISTING OF
DIRECT TESTIMONY AS OPPOSED TO CIRCUMSTANTIAL EVIDENCE WAS SO
OVERWHELMING THAT THE VIOLATION OF BRUTON V. UNITED STATES, 391 U.S.
123 (WHICH HELD THAT THE ADMISSION OF A CONFESSION OF A CODEFENDANT WHO
DID NOT TAKE THE STAND DEPRIVED THE DEFENDANT OF HIS RIGHTS UNDER THE
SIXTH AMENDMENT'S CONFRONTATION CLAUSE), WAS HARMLESS BEYOND A
REASONABLE DOUBT.  CHAPMAN V. CALIFORNIA, 386 U.S. 18.  PP. 251-254. 

256 CAL.APP.2D 209, 64 CAL.RPTR.  159, AFFIRMED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WE HELD IN CHAPMAN V. CALIFORNIA, 386 U.S. 18, THAT "BEFORE A FEDERAL
CONSTITUTIONAL ERROR CAN BE HELD HARMLESS, THE COURT MUST BE ABLE TO
DECLARE A BELIEF THAT IT WAS HARMLESS BEYOND A REASONABLE DOUBT."  ID.,
AT 24.  WE SAID THAT, ALTHOUGH "THERE ARE SOME CONSTITUTIONAL RIGHTS SO
BASIC TO A FAIR TRIAL THAT THEIR INFRACTION CAN NEVER BE TREATED AS
HARMLESS ERROR" (ID., AT 23), NOT ALL "TRIAL ERRORS WHICH VIOLATE THE
CONSTITUTION AUTOMATICALLY CALL FOR REVERSAL."  IBID. 

THE QUESTION WHETHER THE ALLEGED ERROR IN THE PRESENT CASE WAS
"HARMLESS" UNDER THE RULE OF CHAPMAN AROSE IN A STATE TRIAL FOR
ATTEMPTED ROBBERY AND FIRST-DEGREE MURDER.  FOUR MEN WERE TRIED
TOGETHER-- HARRINGTON, A CAUCASIAN, AND BOSBY, RHONE, AND COOPER,
NEGROES-- OVER AN OBJECTION BY HARRINGTON THAT HIS TRIAL SHOULD BE
SEVERED.  EACH OF HIS THREE CODEFENDANTS CONFESSED AND THEIR
CONFESSIONS WERE INTRODUCED AT THE TRIAL WITH LIMITING INSTRUCTIONS
THAT THE JURY WAS TO CONSIDER EACH CONFESSION ONLY AGAINST THE
CONFESSOR.  RHONE TOOK THE STAND AND HARRINGTON'S COUNSEL CROSS
EXAMINED HIM.  THE OTHER TWO DID NOT TAKE THE STAND.  /1/ 

IN BRUTON V. UNITED STATES, 391 U.S. 123, A CONFESSION OF A
CONDEFENDANT WHO DID NOT TAKE THE STAND WAS USED AGAINST BRUTON IN A
FEDERAL PROSECUTION.  WE HELD THAT BRUTON HAD BEEN DENIED HIS RIGHTS
UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT.  SINCE THE
CONFRONTATION CLAUSE IS APPLICALBE AS WELL IN STATE TRIALS BY REASON OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT (POINTER V. TEXAS,
380 U.S. 400), THE RULE OF BRUTON APPLIED HERE. 

THE CALIFORNIA COURT OF APPEAL AFFIRMED THE CONVICTIONS, 256
CAL.APP.2D 209, 64 CAL.RPTR.  159, AND THE SUPREME COURT DENIED A
PETITION FOR A HEARING.  WE GRANTED THE PETITION FOR CERTIORARI TO
CONSIDER WHETHER THE VIOLATION OF BRUTON WAS ON THESE SPECIAL FACTS
HARMLESS ERROR UNDER CHAPMAN. 

PETITIONER MADE STATEMENTS WHICH FELL SHORT OF A CONFESSION BUT
WHICH PLACED HIM AT THE SCENE OF THE CRIME.  HE ADMITTED THAT BOSBY WAS
THE TRIGGER MAN; THAT HE FLED WITH THE OTHER THREE; AND THAT AFTER THE
MURDER HE DYED HIS HAIR BLACK AND SHAVED OFF HIS MOUSTACHE.  SEVERAL
EYEWITNESSES PLACED PETITIONER AT THE SCENE OF THE CRIME.  BUT TWO OF
THEM HAD PREVIOUSLY TOLD THE POLICE THAT FOUR NEGROES COMMITTED THE
CRIME.  RHONE'S CONFESSION, HOWEVER, PLACED HARRINGTON INSIDE THE STORE
WITH A GUN AT THE TIME OF THE ATTEMPTED ROBBERY AND MURDER. 

COOPER'S CONFESSION DID NOT REFER TO HARRINGTON BY NAME.  HE
REFERRED TO THE FOURTH MAN AS "THE WHITE BOY" OR "THIS WHITE GUY."  AND
HE DESCRIBED HIM BY AGE, HEIGHT, AND WEIGHT. 

BOSBY'S CONFESSION LIKEWISE DID NOT MENTION HARRINGTON BY NAME BUT
REFERRED TO HIM AS A BLOND-HEADED FELLOW OR "THE WHITE GUY" OR "THE
PATTY." 

BOTH COOPER AND BOSBY SAID IN THEIR CONFESSIONS THAT THEY DID NOT
SEE "THE WHITE GUY" WITH A GUN, WHICH IS AT VARIANCE WITH THE TESTIMONY
OF THE PROSECUTION WITNESSES. 

PETITIONER ARGUES THAT IT IS IRRELEVANT THAT HE WAS NOT NAMED IN
COOPER'S AND BOSBY'S CONFESSIONS, THAT REFERENCE TO "THE WHITE GUY"
MADE IT AS CLEAR AS POINTING AND SHOUTING THAT THE PERSON REFERRED TO
WAS THE WHITE MAN IN THE DOCK WITH THE THREE NEGROES.  WE MAKE THE SAME
ASSUMPTION.  BUT WE CONCLUDE THAT ON THESE SPECIAL FACTS THE LACK OF
OPPORTUNITY TO CROSS-EXAMINE COOPER AND BOSBY CONSTITUTED HARMLESS
ERROR UNDER THE RULE OF CHAPMAN. 

RHONE, WHOM HARRINGTON'S COUNSEL CROSS-EXAMINED, PLACED HIM IN THE
STORE WITH A GUN AT THE TIME OF THE MURDER.  HARRINGTON HIMSELF AGREED
HE WAS THERE.  OTHERS TESTIFIED HE HAD A GUN AND WAS AN ACTIVE
PARTICIPANT.  COOPER AND BOSBY DID NOT PUT A GUN IN HIS HANDS WHEN HE
DENIED IT.  /2/  THEY DID PLACE HIM AT THE SCENE OF THE CRIME.  BUT
OTHERS, INCLUDING HARRINGTON HIMSELF, DID THE SAME.  THEIR EVIDENCE,
SUPPLIED THROUGH THEIR CONFESSIONS, WAS OF COURSE CUMULATIVE.  BUT
APART FROM THEM THE CASE AGAINST HARRINGTON WAS SO OVERWHELMING THAT WE
CONCLUDE THAT THIS VIOLATION OF BRUTON WAS HARMLESS BEYOND A REASONABLE
DOUBT, UNLESS WE ADOPT THE MINORITY VIEW IN CHAPMAN (386 PU.S.,AT 42
45) THAT A DEPARTURE FROM CONSTITUTIONAL PROCEDURES SHOULD RESULT IN AN
AUTOMATIC REVERSAL, REGARDLESS OF THE WEIGHT OF THE EVIDENCE. 

IT IS ARGUED THAT WE MUST REVERSE IF WE CAN IMAGINE A SINGLE JUROR
WHOSE MIND MIGHT HAVE BEEN MADE UP BECAUSE OF COOPER'S AND BOSBY'S
CONFESSIONS AND WHO OTHERWISE WOULD HAVE REMAINED IN DOUBT AND
UNCONVINCED.  WE OF COURSE DO NOT KNOW THE JURORS WHO SAT.  OUR
JUDGMENT MUST BE BASED ON OUR OWN READING OF THE RECORD AND ON WHAT
SEEMS TO US TO HAVE BEEN THE PROBABLE IMPACT OF THE TWO CONFESSIONS ON
THE MINDS OF AN AVERAGE JURY.  WE ADMONISHED IN CHAPMAN, 386 U.S.
U.S.,AT 23, AGAINST GIVING TOO MUCH EMPHASIS TO "OVERWHELMING EVIDENCE"
OF GUILT, STATING THAT CONSTITUTIONAL ERRORS AFFECTING THE SUBSTANTIAL
RIGHTS OF THE AGGRIEVED PARTY COULD NOT BE CONSIDERED TO BY HARMLESS. 
BY THAT TEST WE CANNOT IMPUTE REVERSIBLE WEIGHT TO THE TWO
CONFESSIONS. 

WE DO NOT DEPART FROM CHAPMAN; NOR DO WE DILUTE IT BY INFERENCE.  WE
REAFFIRM IT.  WE DO NOT SUGGEST THAT, IF EVIDENCE BEARING ON ALL THE
INGREDIENTS OF THE CRIME IS TENDERED, THE USE OF CUMULATIVE EVIDENCE,
THOUGH TAINTED, IS HARMLESS ERROR.  OUR DECISION IS BASED ON THE
EVIDENCE IN THIS RECORD.  THE CASE AGAINST HARRINGTON WAS NOT WOVEN
FROM CIRCUMSTANTIAL EVIDENCE.  IT IS SO OVERWHELMING THAT UNLESS WE SAY
THAT NO VIOLATION OF BRUTON CAN CONSTITUTE HARMLESS ERROR, WE MUST
LEAVE THIS STATE CONVICTION UNDISTURBED. 

              AFFIRMED. 

/1/  ALL FOUR WERE FOUND TO HAVE PARTICIPATED IN AN ATTEMPTED
ROBBERY IN THE COURSE OF WHICH A STORE EMPLOYEE WAS KILLED.  EACH WAS
FOUND GUILTY OF FELONY MURDER AND SENTENCED TO LIFE IMPRISONMENT. 

/2/ "ALL PERSONS AIDING AND ABETTING THE COMMISSION OF A ROBBERY ARE
GUILTY OF FIRST DEGREE MURDER WHEN ONE OF THEM KILLS WHILE ACTING IN
FURTHERANCE OF THE COMMON DESIGN."  PEOPLE V. WASHINGTON, 62 CAL.2D
777, 782, 402 P.2D 130, 133. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

*#255 

THE COURT TODAY OVERRULES CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1967),
THE VERY CASE IT PURPORTS TO APPLY.  FAR MORE FUNDAMENTALLY, IT
SEVERELY UNDERMINES MANY OF THE COURT'S MOST SIGNIFICANT DECISIONS IN
THE AREA OF CRIMINAL PROCEDURE. 

IN CHAPMAN, WE RECOGNIZED THAT "HARMLESS-ERROR RULES CAN WORK VERY
UNFAIR AND MISCHIEVOUS RESULTS" UNLESS THEY ARE NARROWLY
CIRCUMSCRIBED.  ID., AT 22.  WE EMPHASIZED THAT "(AN ERROR IN ADMITTING
PLAINLY RELEVANT EVIDENCE WHICH POSSIBLY INFLUENCED THE JURY ADVERSELY
TO A LITIGANT CANNOT . . . BE CONCEIVED OF AS HARMLESS."  ID., AT 23
24.  THUS, PLACING THE BURDEN OF PROOF ON THE BENEFICIARY OF THE ERROR,
WE HELD THAT "BEFORE A FEDERAL CONSTITUTIONAL ERROR CAN BE HELD
HARMLESS, THE COURT MUST BE ABLE TO DECLARE A BELIEF THAT IT WAS
HARMLESS BEYOND A REASONABLE DOUBT."  ID., AT 24.  AND, WE LEFT NO
DOUBT THAT FOR AN ERROR TO BE "HARMLESS" IT MUST HAVE MADE NO
CONTRIBUTION TO A CRIMINAL CONVICTION.  ID., AT 26. 

CHAPMAN, THEN, MEANT NO COMPROMISE WITH THE PROPOSITION THAT A
CONVICTION CANNOT CONSTITUTIONALLY BE BASED TO ANY EXTENT ON
CONSTITUTIONAL ERROR.  THE COURT TODAY BY SHIFTING THE INQUIRY FROM
WHETHER THE CONSTITUTIONAL ERROR CONTRIBUTED TO THE CONVICTION TO
WHETHER THE UNTAINTED EVIDENCE PROVIDED "OVERWHELMING" SUPPORT FOR THE
CONVICTION PUTS ASIDE THE FIRM RESOLVE OF CHAPMAN AND MAKES THAT
COMPROMISE.  AS A RESULT, THE DETERRENT EFFECT OF SUCH CASES AS MAPP V.
OHIO, 367 U.S. 643 (1961); GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965);
MIRANDA V. ARIZONA, 384 U.S. 436 (1966); UNITED STATES V. WADE, 388
U.S. 218 (1967); AND BRUTON V. UNITED STATES, 391 U.S. 123 (1968); ON
THE ACTIONS OF BOTH POLICE AND PROSECUTORS, NOT TO SPEAK OF TRIAL
COURTS, WILL BE SIGNIFICANTLY UNDERMINED. 

THE COURT HOLDS THAT CONSTITUTIONAL ERROR IN THE TRIAL OF A CRIMINAL
OFFENSE MAY BE HELD HARMLESS IF THERE IS "OVERWHELMING" UNTAINTED
EVIDENCE TO SUPPORT THE CONVICTION.  THIS APPROACH, HOWEVER, WAS
EXPRESSLY REJECTED IN CHAPMAN, SUPRA, AT 23, AND WITH GOOD REASON. 
FOR, WHERE THE INQUIRY CONCERNS THE EXTENT OF ACCUMULATION OF UNTAINTED
EVIDENCE RATHER THAN THE IMPACT OF TAINTED EVIDENCE ON THE JURY'S
DECISION, CONVICTIONS RESULTING FROM CONSTITUTIONAL ERROR MAY BE
INSULATED FROM ATTACK.  BY ITS NATURE, THE ISSUE OF SUBSTANTIALLY OF
EVIDENCE ADMITS OF ONLY THE MOST LIMITED KIND OF APPELLATE REVIEW. 
THUS, THE COURT'S RULE WILL OFTEN EFFECTIVELY LEAVE THE VINDICATION OF
CONSTITUTIONAL RIGHTS SOLELY IN THE HANDS OF TRIAL JUDGES.  IF,
INSTEAD, THE TASK OF APPELLATE COURTS IS TO APPRAISE THE IMPACT OF
TAINTED EVIDENCE ON A JURY'S DECISION, AS CHAPMAN REQUIRED, THESE
COURTS WILL BE BETTER ABLE TO PROTECT AGAINST DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS OF CRIMINAL DEFENDANTS.  THE FOCUS OF APPELLATE
INQUIRY SHOULD BE ON THE CHARACTER AND QUALITY OF THE TAINTED EVIDENCE
AS IT RELATES TO THE UNTAINTED EVIDENCE AND NOT JUST ON THE AMOUNT OF
UNTAINTED EVIDENCE. 

THE INSTANT CASE ILLUSTRATES WELL THE DIFFERENCE IN APPLICATION
BETWEEN THE APPROACH ADOPTED BY THE COURT TODAY AND THE APPROACH SET
DOWN IN CHAPMAN.  AT ISSUE IS THE EVIDENCE GOING TO HARRINGTON'S
PARTICIPATION IN THE CRIME OF ATTEMPTED ROBBERY, NOT THE EVIDENCE GOING
TO HIS PRESENCE AT THE SCENE OF THE CRIME.  WITHOUT THE ADMITTEDLY
UNCONSTITUTIONAL EVIDENCE AGAINST HARRINGTON PROVIDED BY THE
CONFESSIONS OF CODEFENDANTS BOSBY AND COOPER, THE PROSECUTOR'S PROOF OF
HARRINGTON'S PARTICIPATION IN THE CRIME CONSISTED OF THE TESTIMONY OF
TWO VICTIMS OF THE ATTEMPTED ROBBERY AND OF CODEFENDANT RHONE.  THE
TESTIMONY OF THE VICTIMS WAS WEAKENED BY THE FACT THAT THEY HAD EARLIER
TOLD THE POLICE THAT ALL THE PARTICIPANTS IN THE ATTEMPTED ROBBERY WERE
NEGROES.  RHONE'S TESTIMONY AGAINST HARRINGTON WAS SELF-SERVING IN
CERTAIN ASPECTS.  AT THE TIME OF THIS ARREST, RHONE WAS FOUND IN
POSSESSION OF A GUN.  ON THE STAND, HE EXPLAINED THAT HE WAS GIVEN THE
GUN BY HARRINGTON AFTER THE ATTEMPTED ROBBERY, AND THAT HARRINGTON HAD
CARRIED THE GUN DURING THE COMMISSION OF THE ROBBERY.  THUS, ALTHOUGH
THERE WAS MORE THAN AMPLE EVIDENCE TO ESTABLISH HARRINGTON'S
PARTICIPATION IN THE ATTEMPTED ROBBERY, A JURY MIGHT STILL HAVE
CONCLUDED THAT THE CASE WAS NOT PROVED BEYOND A REASONABLE DOUBT.  THE
CONFESSIONS OF THE OTHER TWO CODEFENDANTS IMPLICATING HARRINGTON IN THE
CRIME WERE LESS SELF-SERVING AND MIGHT WELL HAVE TIPPED THE BALANCE IN
THE JURORS' MINDS IN FAVOR OF CONVICTION.  CERTAINLY, THE STATE HAS NOT
CARRIED ITS BURDEN OF DEMONSTRATING BEYOND A REASONABLE DOUBT THAT
THESE TWO CONFESSIONS DID NOT CONTRIBUTE TO HARRINGTON'S CONVICTION. 

THERE SHOULD BE NO NEED TO REMIND THIS COURT THAT THE APPELLATE ROLE
IN APPLYING STANDARDS OF SUFFICIENC- OR SUBSTANTIALITY OF EVIDENCE IS
EXTREMELY LIMITED.  TO APPLY SUCH STANDARDS AS THRESHOLD REQUIREMENTS
TO THE RAISING OF CONSTITUTIONAL CHALLENGES TO CRIMINAL CONVICTIONS IS
TO SHIELD FROM ATTACK ERRORS OF A MOST FUNDAMENTAL NATURE AND THUS TO
DEPRIVE MANY DEFENDANTS OF BASIC CONSTITUTIONAL RIGHTS.  I RESPECTFULLY
DISSENT. 

ROGER S. HANSON, BY APPOINTMENT OF THE COURT, 393 U.S. 1075, ARGUED
THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

JAMES H. KLINE, DEPUTY ATTORNY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY WILLIAM J.
SCOTT, ATTORNEY GENERAL, AND JAMES R. THOMPSON, JAMES B. HADDAD AND
JAMES B. ZAGEL, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF ILLINOIS,
AND BY LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ,
FIRST ASSISTANT ATTORNEY GENERAL, AND AMY JUVILER AND BRENDA SOLOFF,
ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF NEW YORK, JOINED AND
SUPPORTED BY JOHN D. LABELLE FOR THE STATE OF CONNECTICUT, PAUL J.
ABBATE, ATTORNEY GENERAL, FOR THE TERRITORY OF GUAM, AND BY THE
ATTORNEYS GENERAL FOR THEIR RESPECTIVE STATES AS FOLLOWS:  GARY K.
NELSON OF ARIZONA, JOE PURCELL OR ARKANSAS, DUKE W. DUNBAR OF COLORADO,
DAVID P. BUCKSON OF DELAWARE, EARL FAIRCLOTH OF FLORIDA, BERT T.
KOBAYASHI OF HAWAII, THEODORE L. SENDAK OF INDIANA, RICHARD C. TURNER
OF IOWA, KENT FRIZZEL OF KANSAS, JOHN B. BRECKINRIDGE OF KENTUCKY,
ROBERT H. QUINN OF MASSACHUSETTS, DOUGLAS M. HEAD OF MINNESOTA, JOE T.
PATTERSON OF MISSISSIPPI, ROBERT L. WOODAHL OF MONTANA, CLARENCE A. H.
MEYER OF NEBRASKA, JAMES A. MALONEY OF NEW MEXICO, ROBERT B. MORGAN OF
NORTH CAROLINA, HELGI JOHANNESON OF NORTH DAKOTA, PAUL W. BROWN OF
OHIO, DANIEL R. MCLEOD OF SOUTH CAROLINA, GORDON MYDLAND OF SOUTH
DAKOTA, GEORGE F. MCCANLESS OF TENNESSEE, VERNON B. ROMNEY OF UTAH,
ROBERT Y. BUTTON OF VIRGINIA, AND SLADE GORTON OF WASHINGTON. 
..END :










O'CALLAHAN V. PARKER, 395 U.S. 258 


       O'CALLAHAN V. PARKER, WARDEN. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT. 

        NO. 646.  ARGUED JANUARY 23, 1969.-- DECIDED JUNE 2, 1969. 


PETITIONER, A UNITED STATES ARMY SERGEANT, WHILE ON AN EVENING PASS
FROM THIS ARMY POST IN HAWAII AND IN CIVILIAN ATTIRE, BROKE INTO A
HOTEL ROOM, ASSAULTED A GIRL, AND ATTEMPTED RAPE.  FOLLOWING HIS
APPREHENSION, CITY POLICE, ON LEARNING THAT PETITIONER WAS IN THE ARMED
FORCES, DELIVERED HIM TO THE MILITARY POLICE.  AFTER INTERROGATION,
PETITIONER CONFESSED.  HE WAS CHARGED WITH ATTEMPTED RAPE,
HOUSEBREAKING, AND ASSAULT WITH ATTEMPT TO RAPE, IN VIOLATION OF
ARTICLES 80, 130, AND 134 OF THE UNIFORM CODE OF MILITARY JUSTICE,
TRIED BY A COURT-MARTIAL, CONVICTED ON ALL COUNTS, AND SENTENCED.  HIS
CONVICTION WAS AFFIRMED BY THE ARMY BOARD OF REVIEW AND THEREAFTER BY
THE UNITED STATES COURT OF MILITARY APPEALS.  PETITIONER LATER FILED A
PETITION FOR A WRIT OF HABEAS CORPUS IN THE DISTRICT COURT CLAIMING
THAT THE COURT-MARTIAL WAS WITHOUT JURISDICTION TO TRY HIM FOR
NONMILITARY OFFENSES COMMITTED OFF-POST WHILE ON AN EVENING PASS.  THE
DISTRICT COURT DENIED RELIEF AND THE COURT OF APPEALS AFFIRMED.  HELD:
A CRIME, TO BE UNDER MILITARY JURISDICTION, MUST BE SERVICE CONNECTED,
AND SINCE PETITIONER'S CRIMES WERE NOT, HE COULD NOT BE TRIED BY COURT
CARTIAL BUT WAS ENTITLED TO A CIVILIAN TRIAL WITH THE BENEFITS OF AN
INDICTMENT BY A GRAND JURY AND TRIAL BY JURY.  PP. 261-274. 

(A) ART I, SEC. 8, CL. 14, OF THE CONSTITUTION RECOGNIZES THAT
MILITARY DISCIPLINE REQUIRES MILITARY COURTS IN WHICH NOT ALL THE
PROCEDURAL SAFEGUARDS OF ART. III TRIALS NEED APPLY, AND THE FIFTH
AMENDMENT EXEMPTS "CASES ARISING IN THE LAND OR NAVAL FORCES OR IN THE
MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER" FROM
THE REQUIREMENT OF PROSECUTION BY INDICTMENT AND THE RIGHT TO TRIAL BY
JURY.  SEE EX PARTE QUIRIN, 317 U.S. 1, 40.  PP. 261-262. 

(B) IF THE CASE DOES NOT ARISE "IN THE LAND OR NAVAL FORCES," THE
ACCUSED GETS (1) THE BENEFIT OF AN INDICTMENT BY A GRAND JURY AND (2) A
TRIAL BY JURY BEFORE A CIVILIAN COURT AS GUARANTEED BY THE SIXTH
AMENDMENT AND ART. III, SEC. 2.  P. 262. 

(C) A COURT-MARTIAL (WHICH IS TRIED IN ACCORDANCE WITH MILITARY
TRADITIONS AND PROCEDURES BY A PANEL OF OFFICERS EMPOWERED TO ACT BY
TWO-THIRDS VOTE PRESIDED OVER BY A MILITARY LAW OFFICER) IS NOT AN
INDEPENDENT INSTRUMENT OF JUSTICE BUT A SPECIALIZED PART OF AN OVERALL
SYSTEM BY WHICH MILITARY DISCIPLINE IS PRESERVED.  PP. 263-265. 

(D) A CIVILIAN TRIAL IS CONDUCIVE TO THE PROTECTION OF INDIVIDUAL
RIGHTS, WHILE A MILITARY TRIAL IS MARKED BY RETRIBUTIVE JUSTICE.  P.
266. 

(E) THE FACT THAT PETITIONER AT THE TIME OF HIS OFFENSE AND OF HIS
COURT-MARTIAL WAS A MEMBER OF THE ARMED FORCES DOES NOT NECESSARILY
MEAN THAT HE WAS TRIABLE BY COURT-MARTIAL.  PP. 266-267. 

(F) IN ENGLAND BEFORE THE AMERICAN REVOLUTION AND IN THIS COUNTRY
MILITARY TRIALS OF SOLDIERS FOR CIVILIAN OFFENSES HAVE BEEN VIEWED WITH
SUSPICION.  PP. 268-271. 

(G) TO BE UNDER MILITARY JURISDICTION A CRIME MUST BE SERVICE
CONNECTED LEST ALL MEMBERS OF THE ARMED SERVICES BE DEPRIVED OF THE
BENEFITS OF GRAND JURY INDICTMENT AND JURY TRIAL.  PP. 272-273. 

(H) THERE WAS NOT EVEN A REMOTE CONNECTION BETWEEN PETITIONER'S
CRIMES AND HIS MILITARY DUTIES, AND THE OFFENSES WERE PEACETIME
OFFENSES, COMMITTED IN AMERICAN TERRITORY WHICH DID NOT INVOLVE
MILITARY AUTHORITY, SECURITY, OR PROPERTY.  PP. 273-274. 

390 F.2D 360, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, THEN A SERGEANT IN THE UNITED STATES ARMY, WAS STATIONED
IN JULY 1956, AT FORT SHAFTER, OAHU, IN THE TERRITORY OF HAWAII.  ON
THE NIGHT OF JULY 20, WHILE ON AN EVENING PASS, PETITIONER AND A FRIEND
LEFT THE POST DRESSED IN CIVILIAN CLOTHES AND WENT INTO HONOLULU. 
AFTER A FEW BEERS IN THE BAR OF A HOTEL, PETITIONER ENTERED THE
RESIDENTIAL PART OF THE HOTEL WHERE HE BROKE INTO THE ROOM OF A YOUNG
GIRL AND ASSAULTED AND ATTEMPTED TO RAPE HER.  WHILE FLEEING FROM HER
ROOM ONTO WAIKIKI BEACH, HE WAS APPREHENDED BY A HOTEL SECURITY OFFICER
WHO DELIVERED HIM TO THE HONOLULU CITY POLICE FOR QUESTIONING.  AFTER
DETERMINING THAT HE WAS A MEMBER OF THE ARMED FORCES, THE CITY POLICE
DELIVERED PETITIONER TO THE MILITARY POLICE.  AFTER EXTENSIVE
INTERROGATION, PETITIONER CONFESSED AND WAS PLACED IN MILITARY
CONFINEMENT. 

PETITIONER WAS CHARGED WITH ATTEMPTED RAPE, HOUSEBREAKING, AND
ASSAULT WITH INTENT TO RAPE, IN VIOLATION OF ARTICLES 80, 130, AND 134
OF THE UNIFORM CODE OF MILITARY JUSTICE.  /1/  HE WAS TRIED BY COURT
MARTIAL, CONVICTED ON ALL COUNTS, AND GIVEN A SENTENCE OF 10 YEARS'
IMPRISONMENT AT HARD LABOR, FORFEITURE OF ALL PAY AND ALLOWANCES, AND
DISHONORABLE DISCHARGE.  HIS CONVICTION WAS AFFIRMED BY THE ARMY BOARD
OF REVIEW AND, SUBSEQUENTLY, BY THE UNITED STATES COURT OF MILITARY
APPEALS. 

UNDER CONFINEMENT AT THE UNITED STATES PENITENTIARY AT LEWISBURG,
PENNSYLVANIA, PETITIONER FILED A PETITION FOR WRIT OF HABEAS CORPUS IN
THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA, ALLEGING, INTER ALIA, THAT THE COURT-MARTICAL WAS WITHOUT
JURISDICTION TO TRY HIM FOR NONMILITARY OFFENSES COMMITTED OFF-POST
WHILE ON AN EVENING PASS.  THE DISTRICT COURT DENIED RELIEF WITHOUT
CONSIDERING THE ISSUE ON THE MERITS, AND THE COURT OF APPEALS FOR THE
THIRD CIRCUIT AFFIRMED.  THIS COURT GRANTED CERTIORARI LIMITED TO THE
QUESTION: 

    "DOES A COURT-MARTIAL, HELD UNDER THE ARTICLES OF WAR, TIT. 10,

  U.S.C. SEC. 801 ET SEQ., HAVE JURISDICTION TO TRY A MEMBER OF THE

  ARMED FORCES WHO IS CHARGED WITH COMMISSION OF A CRIME COGNIZABLE

  IN A CIVILIAN COURT AND HAVING NO MILITARY SIGNIFICANCE, ALLEGED

  TO HAVE BEEN COMMITTED OFF-POST AND WHILE ON LEAVE, THUS

  DEPRIVING HIM OF HIS CONSTITUTIONAL RIGHTS TO INDICTMENT BY A

  GRAND JURY AND TRIAL BY A PETIT JURY IN A CIVILIAN COURT?"  393

  U.S. 822. 

THE CONSTITUTION GIVES CONGRESS POWER TO "MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES," ART. I, SEC.
8, CL. 14, AND IT RECOGNIZES THAT THE EXIGENCIES OF MILITARY DISCIPLINE
REQUIRE THE EXISTENCE OF A SPECIAL SYSTEM OF MILITARY COURTS IN WHICH
NOT ALL OF THE SPECIFIC PROCEDURAL PROTECTIONS DEEMED ESSENTIAL IN ART.
III TRIALS NEED APPLY.  THE FIFTH AMENDMENT SPECIFICALLY EXEMPTS "CASES
ARISING IN THE LAND OR NAVAL FORCES, OR IN THE MILITIA, WHEN IN ACTUAL
SERVICE IN TIME OF WAR OR PUBLIC DANGER"  FROM THE REQUIREMENT OF
PROSECUTION BY INDICTMENT AND, INFERENTIALLY, FROM THE RIGHT TO TRIAL
BY JURY.  SEE EX PARTE QUIRIN, 317 U.S. 1, 40.  THE RESULT HAS BEEN THE
ESTABLISHMENT AND DEVELOPMENT OF A SYSTEM OF MILITARY JUSTICE WITH
FUNDAMENTAL DIFFERENCES FROM THE PRACTICES IN THE CIVILIAN COURTS. 

IF THE CASE DOES NOT ARISE "IN THE LAND OR NAVAL FORCES," THEN THE
ACCUSED GETS FIRST, THE BENEFIT OF AN INDICTMENT BY A GRAND JURY AND
SECOND, A TRIAL BY JURY BEFORE A CIVILIAN COURT AS GUARANTEED BY THE
SIXTH AMENDMENT AND BY ART. III, SEC. 2, OF THE CONSTITUTION WHICH
PROVIDES IN PART: 

     "THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT,
SHALL

  BY BY JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE

  SAID CRIMES SHALL HAVE BEEN COMMITTED; BUT WHEN NOT COMMITTED

  WITHIN ANY STATE, THE TRIAL SHALL BE AT SUCH PLACE OR PLACES AS

  THE CONGRESS MAY BE LAW HAVE DIRECTED." 

THOSE CIVIL RIGHTS ARE THE CONSTITUTIONAL STAKES IN THE PRESENT
LITIGATION.  WHAT WE WROTE IN TOTH V. QUARLES, 350 U.S. 11, 17-18, IS
WORTH EMPHASIS: 

     "WE FIND NOTHING IN THE HISTORY OR CONSTITUTIONAL TREATMENT OF

 MILITARY TRIBUNALS WHICH ENTITLES THEM TO RANK ALONG WITH ARTICLE

  III COURTS AS ADJUDICATORS OF THE GUILT OR INNOCENCE OF PEOPLE

  CHARGED WITH OFFENSES FOR WHICH THEY CAN BE DEPRIVED OF THEIR

  LIFE, LIBERTY OR PROPERTY.  UNLIKE COURTS, IT IS THE PRIMARY

  BUSINESS OF ARMIES AND NAVIES TO FIGHT OR BE READY TO FIGHT WARS

  SHOULD THE OCCASION ARISE.  BUT TRIAL OF SOLDIERS TO MAINTAIN

  DISCIPLINE IS MERELY INCIDENTAL TO AN ARMY'S PRIMARY FIGHTING

  FUNCTION.  TO THE EXTENT OF THOSE RESPONSIBLE FOR PERFORMANCE OF

  THIS PRIMARY FUNCTION ARE DIVERTED FROM IT BY THE NECESSITY OF

  TRYING CASES, THE BASIC FIGHTING PURPOSE OF ARMIES IS NOT

  SERVED.  AND CONCEDING TO MILITARY PERSONNEL THAT HIGH DEGREE OF

  HONESTY AND SENSE OF JUSTICE WHICH NEARLY ALL OF THEM UNDOUBTEDLY

  HAVE, IT STILL REMAINS TRUE THAT MILITARY TRIBUNALS HAVE NOT BEEN

  AND PROBABLY NEVER CAN BE CONSTITUTED IN SUCH WAY THAT THEY CAN

  HAVE THE SAME KIND OF QUALIFICATIONS THAT THE CONSTITUTION HAS

  DEEMED ESSENTIAL TO FAIR TRIALS OF CIVILIANS IN FEDERAL COURTS. 

  FOR INSTANCE, THE CONSTITUTION DOES NOT PROVIDE LIFE TENURE FOR

  THOSE PERFORMING JUDICIAL JUNCTIONS IN MILITARY TRIALS.  THEY ARE

  APPOINTED BY MILITARY COMMANDERS AND MAY BE REMOVED AT WILL.  NOR

  DOES THE CONSTITUTION PROTECT THEIR SALARIES AS IT DOES JUDICIAL

  SALARIES.  STRIDES HAVE BEEN MADE TOWARD MAKING COURTS-MARTIAL

  LESS SUBJECT TO THE WILL OF THE EXECUTIVE DEPARTMENT WHICH

  APPOINTS, SUPERVISES AND ULTIMATELY CONTROLS THEM.  BUT FROM THE

  VERY NATURE OF THINGS, COURTS HAVE MORE INDEPENDENCE IN PASSING

  ON THE LIFE AND LIBERTY OF PEOPLE THAN DO MILITARY TRIBUNALS. 

     "MOREOVER, THERE IS A GREAT DIFFERENCE BETWEEN TRIAL BY JURY

  AND TRIAL BY SELECTED MEMBERS OF THE MILITARY FORCES.  IT IS TRUE

  THAT MILITARY PERSONNEL BECAUSE OF THEIR TRAINING AND EXPERIENCE

  MAY BE ESPECIALLY COMPETENT TO TRY SOLDIERS FOR INFRACTIONS OF

  MILITARY RULES.  SUCH TRAINING IS NO DOUBT PARTICULARLY IMPORTANT

  WHERE AN OFFENSE CHARGED AGAINST A SOLDIER IS PURELY MILITARY,

  SUCH AS DISOBEDIENCE OF AN ORDER, LEAVING POST, ETC.  BUT WHETHER

 RIGHT OR WRONG, THE PREMISE UNDERLYING THE CONSTITUTIONAL METHOD

  FOR DETERMINING GUILT OR INNOCENCE IN FEDERAL COURTS IS THAT

  LAYMEN ARE BETTER THAN SPECIALISTS TO PERFORM THIS TASK.  THIS

  IDEA IS INHERENT IN THE INSTITUTION OF TRIAL BY JURY." 

A COURT-MARTIAL IS TRIED, NOT BY A JURY OF THE DEFENDANT'S PEERS
WHICH MUST DECIDE UNANIMOUSLY, BUT BY A PANEL OF OFFICERS /2/
IMPOWERED TO ACT BY A TWO-THIRDS VOTE.  THE PRESIDING OFFICER AT A
COURT-MARTIAL IS NOT A JUDGE WHOSE OBJECTIVITY AND INDEPENDENCE ARE
PROTECTED BY TENURE AND UNDIMINISHABLE SALARY AND NURTURED BY THE
JUDICIAL TRADITION, BUT IS A MILITARY LAW OFFICER.  /3/  SUBSTANTIALLY
DIFFERENT RULES OF EVIDENCE AND PROCEDURE APPLY IN MILITARY TRIALS. 
/4/  APART FROM THOSE DIFFERENCES, THE SUGGESTION OF THE POSSIBILITY OF
INFLUENCE ON THE ACTIONS OF THE COURT-MARTIAL BY THE OFFICER WHO
CONVENES IT, SELECTS ITS MEMBERS AND THE COUNSEL ON BOTH SIDES, AND WHO
USUALLY HAS DIRECT COMMAND AUTHORITY OVER ITS MEMBERS IS A PERVASIVE
ONE IN MILITARY LAW, DESPITE STRENUOUS EFFORTS TO ELIMINATE THE
DANGER.  /5/ 

A COURT-MARTIAL IS NOT YET AN INDEPENDENT INSTRUMENT OF JUSTICE BUT
REMAINS TO A SIGNIFICANT DEGREE A SPECIALIZED PART OF THE OVERALL
MECHANISM BY WHICH MILITARY DISCIPLINE IS PRESERVED.  /6/ 

THAT A SYSTEM OF SPECIALIZED MILITARY COURTS, PROCEEDING BY
PRACTICES DIFFERENT FROM THOSE OBTAINING IN THE REGULAR COURTS AND IN
GENERAL LESS FAVORABLE TO DEFENDANTS, IS NECESSARY TO AN EFFECTIVE
NATIONAL DEFENSE ESTABLISHMENT, FEW WOULD DENY.  BUT THE JUSTIFICATION
FOR SUCH A SYSTEM RESTS ON THE SPECIAL NEEDS OF THE MILITARY, AND
HISTORY TEACHES THAT EXPANSION OF MILITARY DISCIPLINE BEYOND ITS PROPER
DOMAIN CARRIES WITH IT A THREAT TO LIBERTY.  THIS COURT, MINDFUL OF THE
GENUINE NEED FOR SPECIAL MILITARY COURTS, HAS RECOGNIZED THEIR
PROPRIETY IN THEIR APPROPRIATE SPHERE, E.G., BURNS V. WILSON, 346 U.S.
137, BUT IN EXAMINING THE REACH OF THEIR JURISDICTION, IT HAS
RECOGNIZED THAT 

     "THERE ARE DANGERS LURKING IN MILITARY TRIALS WHICH WERE
SOUGHT

  TO BE AVOIDED BY THE BILL OF RIGHTS AND ARTICLE III OF OUR

  CONSTITUTION.  FREE COUNTRIES OF THE WORLD HAVE TRIED TO RESTRICT

  MILITARY TRIBUNALS TO THE NARROWEST JURISDICTION DEEMED

  ABSOLUTELY ESSENTIAL TO MAINTAINING DISCIPLINE AMONG TROOPS IN

  ACTIVE SERVICE.  . . . 

     "DETERMINING THE SCOPE OF THE CONSTITUTIONAL POWER OF CONGRESS

  TO AUTHORIZE TRIAL BY COURT-MARTIAL PRESENTS ANOTHER INSTANCE

  CALLING FOR LIMITATION TO 'THE LEASE POSSIBLE POWER TO ADEQUATE

  TO THE END PROPOSED.'"  TOTH V. QUARLES, 350 U.S. 11, 22-23. 

WHILE THE COURT OF MILITARY APPEALS TAKES COGNIZANCE OF SOME
CONSTITUTIONAL RIGHTS OF THE ACCUSED WHO ARE COURT-MARTIALED, COURTS
MARTIAL AS AN INSTITUTION ARE SINGULARLY INEPT IN DEALING WITH THE NICE
SUBTLETIES OF CONSTITUTIONAL LAW.  ARTICLE 134, ALREADY QUOTED,
PUNISHES AS A CRIME "ALL DISORDERS AND NEGLECTS TO THE PREJUDICE OF
GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES."  DOES THIS SATISFY THE
STANDARDS OF VAGUENESS AS DEVELOPED BY THE CIVIL COURTS?  IT IS NOT
ENOUGH TO SAY THAT A COURT-MARTIAL MAY BE REVERSED ON APPEAL.  ONE OF
THE BENEFITS OF A CIVILIAN TRIAL IS THAT THE TRAP OF ARTICLE 134 MAY BE
AVOIDED BY A DECLARATORY JUDGMENT PROCEEDING OR OTHERWISE.  SEE
DOMBROWSKI V. PFISTER, 380 U.S. 479.  A CIVILIAN TRIAL, IN OTHER WORDS,
IS HELD IN AN ATMOSPHERE CONDUCIVE TO THE PROTECTION OF INDIVIDUAL
RIGHTS, WHILE A MILITARY TRIAL IS MARKED BY THE AGE-OLD MANIFEST
DESTINY OF RETRIBUTIVE JUSTICE.  /7/ 

AS RECENTLY STATED:  "NONE OF THE TRAVESTIES OF JUSTICE PERPETRATED
UNDER THE UCMJ IS REALLY VERY SURPRISING, FOR MILITARY LAW HAS ALWAYS
BEEN AND CONTINUES TO BE PRIMARILY AN INSTRUMENT OF DISCIPLINE, NOT
JUSTICE."  GLASSER, JUSTICE AND CAPTAIN LEVY, 12 COLUMBIA FORUM 46, 49
(1969). 

THE MERE FACT THAT PETITIONER WAS AT THE TIME OF HIS OFFENSE AND OF
HIS COURT-MARTIAL ON ACTIVE DUTY IN THE ARMED FORCES DOES NOT
AUTOMATICALLY DISPOSE OF THIS CASE UNDER OUR PRIOR DECISIONS. 

WE HAVE HELD IN A SERIES OF DECISIONS THAT COURT-MARTIAL
JURISDICTION CANNOT BE EXTENDED TO REACH ANY PERSON NOT A MEMBER OF THE
ARMED FORCES AT THE TIMES OF BOTH THE OFFENSE AND THE TRIAL.  THUS,
DISCHARGED SOLDIERS CANNOT BE COURT-MARTIALED FOR OFFENSES COMMITTED
WHILE IN SERVICE.  TOTH V. QUARLES, 350 U.S. 11.  SIMILARLY, NEITHER
CIVILIAN EMPLOYEES OF THE ARMED FORCES OVERSEAS, MCELROY V. GUAGLIARDO,
361 U.S. 281; GRISHAM V. HAGAN, 361 U.S. 278; NOR CIVILIAN DEPENDENTS
OF MILITARY PERSONNEL ACCOMPANYING THEM OVERSEAS, KINSELLA V.
SINGLETON, 361 U.S. 234; REID V. COVERT, 354 U.S. 1, MAY BE TRIED BY
COURT-MARTIAL. 

THESE CASES DECIDE THAT COURTS-MARTIAL HAVE NO JURISDICTION TO TRY
THOSE WHO ARE NOT MEMBERS OF THE ARMED FORCES, NO MATTER HOW INTIMATE
THE CONNECTION BETWEEN THEIR OFFENSE AND THE CONCERNS OF MILITARY
DISCIPLINE.  FROM THESE CASES, THE GOVERNMENT INVITES US TO DRAW THE
CONCLUSION THAT ONCE IT IS ESTABLISHED THAT THE ACCUSED IS A MEMBER OF
THE ARMED FORCES, LACK OF RELATIONSHIP BETWEEN THE OFFENSE AND
IDENTIFIABLE MILITARY INTERESTS IS IRRELEVANT TO THE JURISDICTION OF A
COURT-MARTIAL. 

THE FACT THAT COURTS-MARTIAL HAVE NO JURISDICTION OVER NONSOLDIERS,
WHATEVER THEIR OFFENSE, DOES NOT NECESSARILY IMPLY THAT THEY HAVE
UNLIMITED JURISDICTION OVER SOLDIERS, REGARDLESS OF THE NATURE OF THE
OFFENSES CHARGED.  NOR DO THE CASES OF THIS COURT SUGGEST ANY SUCH
INTERPRETATION.  THE GOVERNMENT EMPHASIZES THAT THESE DECISIONS--
ESPECIALLY KINSELLA V. SINGLETON-- ESTABLISH THAT LIABILITY TO TRIAL BY
COURT-MARTIAL IS A QUATION OF "STATUS"-- "WHETHER THE ACCUSED IN THE
COURT-MARTIAL PROCEEDING IS A PERSON WHO CAN BE REGARDED AS FALLING
WITHIN THE TERM 'LAND AND NAVAL FORCES.'"  361 U.S.,AT 241.  BUT THAT
IS MERELY THE BEGINNING OF THE INQUIRY, NOT ITS END.  "STATUS"  IS
NECESSARY FOR JURISDICTION; BUT IT DOES NOT FOLLOW THAT ASCERTAINMENT
OF "STATUS" COMPLETES THE INQUIRY, REGARDLESS OF THE NATURE, TIME, AND
PLACE OF THE OFFENSE. 

BOTH IN ENGLAND PRIOR TO THE AMERICAN REVOLUTION AND IN OUR OWN
NATIONAL HISTORY MILITARY TRIAL OF SOLDIERS COMMITTING CIVILIAN
OFFENSES HAS BEEN VIEWED WITH SUSPICION.  /8/  ABUSES OF THE COURT
MARTIAL POWER WERE AN IMPORTANT GRIEVANCE OF THE PARLIAMENTARY FORCES
IN THE ENGLISH CONSITUTIONAL CRISES OF THE 17TH CENTURY.  THE
RESOLUTION OF THAT CONFLICT CAME WITH THE ACCEPTANCE BY WILLIAM AND
MARY OF THE BILL OF RIGHTS IN 1689 WHICH ESTABLISHED THAT IN THE
FUTURE, PARLIAMENT, NOT THE CROWN, WOULD HAVE THE POWER TO DEFINE THE
JURISDICTION OF COURTS-MARTIAL.  1 W. & M.,SESS.  2, C. 2.  THE 17TH
CENTURY CONFLICT OVER THE PROPER ROLE OF COURTS-MARTIAL IN THE
ENFORCEMENT OF THE DOMESTICE CRIMINAL LAW WAS NOT, HOWEVER, MERELY A
DISPUTE OVER WHAT ORGAN OF GOVERNMENT HAD JURISDICTION.  IT ALSO
INVOLVED SUBSTANTIVE DISAPPROVAL OF THE GENERAL USE OF MILITARY COURTS
FOR TRIAL OF ORDINARY CRIMES.  /9/     PARLIAMENT, POSSESSED AT LAST OF
FINAL POWER IN THE MATTER, WAS QUICK TO AUTHORIZE, SUBJECT TO ANNUAL
RENEWAL, MAINTENANCE OF A STANDING ARMY AND TO GIVE AUTHORITY FOR TRIAL
BY COURT-MARTIAL OF CERTAIN CRIMES CLOSELY RELATED TO MILITARY
DISCIPLINE.  BUT PARLIAMENT'S NEW POWER OVER COURTS-MARTIAL WAS
EXERCISED ONLY VERY SPARINGLY TO ORDAIN MILITARY JURISDICTION OVER ACTS
WHICH WERE ALSO OFFENSES AT COMMON LAW.  THE FIRST OF THE ANNUAL MUTINY
ACTS, 1 W. & M.,C. 5, SET THE TONE.  IT ESTABLISHED THE GENERAL RULE
THAT 

"NOE MAN MAY BE FOREJUDGED OF LIFE OR LIMBE, OR SUBJECTED TO ANY
KINDE OF PUNISHMENT BY MARTIALL LAW OR IN ANY OTHER MANNER THAN BY THE
JUDGEMENT OF HIS PEERES AND ACCORDING TO THE KNOWNE AND ESTABLISHED
LAWS OF THIS REALME."  AND IT PROCEEDED TO GRANT COURTS-MARTIAL
JURISDICTION ONLY OVER MUTINY, SEDITION, AND DESERTION.  IN ALL OTHER
RESPECTS, MILITARY PERSONNEL WERE TO BE SUBJECT TO THE "ORDINARY
PROCESSE OF LAW." 

THE JURISDICTION OF BRITISH COURTS-MARTIAL OVER MILITARY OFFENSES
WHICH WERE ALSO COMMON-LAW FELONIES WAS FROM TIME TO TIME EXTENDED,
/10/  BUT, WITH THE EXCEPTION OF ONE YEAR, /11/  THERE WAS NEVER ANY
GENERAL MILITARY JURISDICTION TO TRY SOLDIERS FOR ORDINARY CRIMES
COMMITTED IN THE BRITISH ISLES.  IT WAS, THEREFORE, THE RULE IN BRITAIN
AT THE TIME OF THE AMERICAN REVOLUTION THAT A SOLDIER COULD NOT BE
TRIED BY COURT-MARTIAL FOR A CIVILAIN OFFENSE COMMITTED IN BRITAIN;
INSTEAD MILITARY OFFICERS WERE REQUIRED TO USE THEIR ENERGIES AND
OFFICE TO INSURE THAT THE ACCUSED SOLDIER WOULD BE TRIED BEFORE A CIVIL
COURT.  /12/  EVASION AND EROSION OF THE PRINCIPLE THAT CRIMES
COMMITTED BY SOLDIERS SHOULD BE TRIED ACCORDING TO REGULAR JUDICIAL
PROCEDURE IN CIVIL, NOT MILITARY, COURTS, IF ANY WERE AVAILABLE, WERE
AMONG THE GRIEVANCES PROTESTED BY THE AMERICAN COLONISTS.  /13/ 

EARLY AMERICAN PRACTICE FOLLOWED THE BRITISH MODEL.  /14/  THE
CONTINENTAL CONGRESS, IN ENACTING ARTICLES OF WAR IN 1776, EMPHASIZED
THE IMPORTANCE OF MILITARY AUTHORITY COOPERATING TO INSURE THAT
SOLDIERS WHO COMMITTED CRIMES WERE BROUGHT TO JUSTICE.  BUT IS IS CLEAR
FROM THE CONTEXT OF THE PROVISION THAT IT EXPECTED THE TRIALS WOULD BE
IN CIVIL COURTS.  /15/  THE "GENERAL ARTICLE," WHICH PUNISHED "(ALL
CRIMES NOT CAPITAL, AND ALL DISORDERS AND NEGLECTS, WHICH OFFICERS AND
SOLDIERS MAY BE GUILTY OF, TO THE PREJUDICE OF GOOD ORDER AND MILITARY
DISCIPLINE, THOUGH NOT MENTIONED IN THE FOREGOING ARTICLES OF WAR," WAS
INTERPRETATED TO EMBRACE ONLY CRIMES THE COMMISSION OF WHICH HAD SOME
DIRECT IMPACT ON MILITARY DISCIPLINE.  WINTHROP *1123.  WHILE PRACTICE
WAS NOT ALTOGETHER CONSISTENT, DURING THE 19TH CENTURY COURT-MARTIAL
CONVICTIONS FOR ORDINARY CIVIL CRIMES WERE FROM TIME TO TIME SET ASIDE
BY THE REVIEWING AUTHORITY ON THE GROUND THAT THE CHARGES RECITED ONLY
A VIOLATION OF THE GENERAL CRIMINAL LAW AND FAILED TO STATE A MILITARY
OFFENSE.  ID., *1124, NN. 82, 88.  /16/ 

DURING THE CIVIL WAR, CONGRESS PROVIDED FOR MILITARY TRIAL OF
CERTAIN CIVIL OFFENSES /17/ WITHOUT REGARD TO THEIR EFFECT ON ORDER AND
DISCIPLINE, BUT THE ACT APPLIED ONLY "IN TIME OF WAR, INSURRECTION, OR
REBELLION."  ACT OF MAR. 3, 1863, C. 75, SEC. 30, 12 STAT. 736; REV.
STAT. SEC. 1342, ART. 58 (1874).  IN 1916, ON THE EVE OF WORLD WAR I,
THE ARTICLES OF WAR WERE REVISED, 39 STAT. 650, TO PROVIDE FOR MILITARY
TRIAL, EVEN IN PEACETIME, OF CERTAIN SPECIFIC CIVILIAN CRIMES COMMITTED
BY PERSONS "SUBJECT TO MILITARY LAW" AND THE GENERAL ARTICLE, ART. 96,
WAS MODIFIED TO PROVIDE FOR MILITARY TRIAL OF "ALL CRIMES OR OFFENSES
NOT CAPITAL."  IN 1950, THE UNIFORM CODE OF MILITARY JUSTICE EXTENDED
MILITARY JURISDICTION TO CAPITAL CRIMES AS WELL. 

WE HAVE CONCLUDED THAT THE CRIME TO BE UNDER MILITARY JURISDICTION
MUST BE SERVICE CONNECTED, LEST "CASES ARISING IN THE LAND OR NAVAL
FORCES, OR IN THE MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF WAR OR
PUBLIC DANGER,"  /18/ AS USED IN THE FIFTH AMENDMENT, BE EXPANDED TO
DEPRIVE EVERY MEMBER OF THE ARMED SERVICES OF THE BENEFITS OF AN
INDICTMENT BY A GRAND JURY AND A TRIAL BY JURY OF HIS PEERS.  THE POWER
OF CONGRESS TO MAKE "RULES FOR THE GOVERNMENT AND REGULATION OF THE
LAND AND NAVAL FORCES," ART. I, SEC. 8, CL. 14, NEED NOT BE SPARINGLY
READ IN ORDER TO PRESERVE THOSE TWO IMPORTANT CONSTITUTIONAL
GUARANTEES.  FOR IT IS ASSUMED THAT AN EXPRESS GRANT OF GENERAL POWER
TO CONGRESS IS TO BE EXERCISED IN HARMONY WITH EXPRESS GUARANTEES OF
THE BILL OF RIGHTS.  WE WERE ADVISED ON ORAL ARGUMENT THAT ART. 134 IS
CONSTRUED BY THE MILITARY TO GIVE IT POWER TO TRY A MEMBER OF THE ARMED
SERVICES FOR INCOME TAX EVASION.  THIS ARTICLE HAS BEEN CALLED "A CATCH
ALL" THAT "INCORPORATES ALMOST EVERY FEDERAL PENAL STATUTE INTO THE
UNIFORM CODE."  R. EVERETT, MILITARY JUSTICE IN THE ARMED FORCES OF THE
UNITED STATES 68-69 (1956).  THE CATALOGUE OF CASES PUT WITHIN REACH OF
THE MILITARY IS INDEED LONG; AND WE SEE NO WAY OF SAVING TO SERVICEMEN
AND SERVICEWOMEN IN ANY CASE THE BENEFITS OF INDICTMENT AND OF TRIAL BY
JURY, IF WE CONCLUDE THAT THIS PETITIONER WAS PROPERLY TRIED BY COURT
MARTIAL. 

IN THE PRESENT CASE PETITIONER WAS PROPERLY ABSENT FROM HIS MILITARY
BASE WHEN HE COMMITTED THE CRIMES WITH WHICH HE IS CHARGED.  THERE WAS
NO CONNECTION-- NOT EVEN THE REMOTEST ONE-- BETWEEN HIS MILITARY DUTIES
AND THE CRIMES IN QUESTION.  THE CRIMES WERE NOT COMMITTED ON A
MILITARY POST OR ENCLAVE; NOR WAS THE PERSON WHOM HE ATTACKED
PERFORMING ANY DUTIES RELATING TO THE MILITARY.  MOREOVER, HAWAII, THE
SITUS OF THE CRIME, IS NOT AN ARMED CAMP UNDER MILITARY CONTROL, AS ARE
SOME OF OUR FAR-FLUNG OUTPOSTS. 

FINALLY, WE DEAL WITH PEACETIME OFFENSES, NOT WITH AUTHORITY
STEMMING FROM THE WAR POWER.  CIVIL COURTS WERE OPEN.  THE OFFENSES
WERE COMMITTED WITHIN OUR TERRITORIAL LIMITS, NOT IN THE OCCUPIED ZONE
OF A FOREIGN COUNTRY.  THE OFFENSES DID NOT INVOLVE ANY QUESTION OF THE
FLOUTING OF MILITARY AUTHORITY, THE SECURITY OF A MILITARY POST, OR THE
INTEGRITY OF MILITARY PROPERTY.  /19/ 

WE HAVE ACCORDINGLY DECIDED THAT SINCE PETITIONER'S CRIMES WERE NOT
SERVICE CONNECTED, HE COULD NOT BE TRIED BY COURT-MARTIAL BUT RATHER
WAS ENTITLED TO TRIAL BY THE CIVILIAN COURTS. 

            REVERSED. 

/1/  ARTICLE 80 OF THE UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C.
880) PROVIDES IN PART: 

"(A) AN ACT, DONE WITH SPECIFIC INTENT TO COMMIT AN OFFENSE UNDER
THIS CHAPTER, AMOUNTING TO MORE THAN MERE PREPARATION AND TENDING, EVEN
THOUGH FAILING, TO EFFECT ITS COMMISSION, IS AN ATTEMPT TO COMMIT THAT
OFFENSE. 

"(B) ANY PERSON SUBJECT TO THIS CHAPTER WHO ATTEMPTS TO COMMIT ANY
OFFENSE PUNISHABLE BY THIS CHAPTER SHALL BE PUNISHED AS A COURT-MARTIAL
MAY DIRECT, UNLESS OTHERWISE SPECIFICALLY PRESCRIBED." 

ARTICLE 130 (10 (U.S.C. 930) PROVIDES: 

"ANY PERSON SUBJECT TO THIS CHAPTER WHO UNLAWFULLY ENTERS THE
BUILDING OR STRUCTURE OF ANOTHER WITH INTENT TO COMMIT A CRIMINAL
OFFENSE THEREIN IS GUILTY OF HOUSEBREAKING AND SHALL BE PUNISHED AS A
COURT-MARTIAL MAY DIRECT." 

ARTICLE 134 (10 U.S.C. 934) PROVIDES: 

"THOUGH NOT SPECIFICALLY MENTIONED IN THIS CHAPTER, ALL DISORDERS
AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED
FORCES, ALL CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE ARMED
FORCES, AND CRIMES AND OFFENSES NOT CAPITAL, OF WHICH PERSONS SUBJECT
TO THIS CHAPTER MAY BE GUILTY, SHALL BE TAKEN COGNIZANCE OF BY A
GENERAL, SPECIAL, OR SUMMARY COURT-MARTIAL, ACCORDING TO THE NATURE AND
DEGREE OF THE OFFENSE, AND SHALL BE PUNISHED AT THE DISCRETION OF THAT
COURT." 

/2/  UNDER ART. 25(C) OF THE UNIFORM CODE OF MILITARY JUSTICE, 10
U.S.C. 825(C), AT LEAST ONE-THIRD OF THE MEMBERS OF THE COURT-MARTIAL
TRYING AN ENLISTED MAN ARE REQUIRED TO BE ENLISTED MEN IF THE ACCUSED
REQUESTS THAT ENLISTED PERSONNEL BE INCLUDED IN THE COURT-MARTIAL.  IN
PRACTICE USUALLY ONLY SENIOR PERSONNEL, I.E., NONCOMMISSIONED OFFICERS,
ARE SELECTED.  SEE UNITED STATES V. CRAWFORD, 15 U.S.C.M.A. 31, 35
C.M.R. 3, MOTION FOR LEAVE TO FILE PETITION FOR CERTIORARI DENIED, 380
U.S. 970.  SEE GENERALLY, SCHIESSER, TRIAL BY PEERS:  ENLISTED MEMBERS
ON COURTS-MARTIAL, 15 CATHOLIC U.L.REV.  171 (1966). 

/3/  AT THE TIME PETITIONER WAS TRIED, A GENERAL COURT-MARTIAL WAS
PRESIDED OVER BY A "LAW OFFICER," WHO WAS REQUIRED TO BE A MEMBER OF
THE BAR AND CERTIFIED BY THE JUDGE ADVOCATE GENERAL FOR DUTY AS A LAW
OFFICER.  U.C.M.J. ART. 26(A).  THE "LAW OFFICER" COULD BE A DIRECT
SUBORDINATE OF THE CONVENING AUTHORITY.  MANUAL FOR COURTS-MARTIAL,
UNITED STATES, 1951, 4G(1).  (SYMBOL OMITTED).  THE MILITARY JUSTICE
ACT OF 1968, 82 STAT. 1335, ESTABLISHES A SYSTEM OF "MILITARY JUDGES"
INTENDED TO INSURE THAT WHERE POSSIBLE THE PRESIDING OFFICER OF A COURT
MARTIAL WILL BE A PROFESSIONAL MILITARY JUDGE, NOT DIRECTLY SUBORDINATE
TO THE CONVENING AUTHORITY. 

/4/  FOR EXAMPLE, IN A COURT-MARTIAL, THE ACCESS OF THE DEFENSE TO
COMPULSORY PROCESS FOR OBTAINING EVIDENCE AND WITNESSES IS, TO A
SIGNIFICANT EXTENT, DEPENDENT ON THE APPROVAL OF THE PROSECUTION. 
UNITED STATES V. HARVEY, 8 U.S.C.M.A. 538, 25 C.M.R. 42, APPROVING
MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, 115A.  (SYMBOL
OMITTED).  SEE MILNICK, THE DEFENDANT'S RIGHT TO OBTAIN EVIDENCE:  AN
EXAMINATION OF THE MILITARY VIEWPOINT, 29 MIL.L.REV.  1 (1965). 

/5/  SEE, E.G., THE CASES LISTED IN HEARINGS ON CONSTITUTIONAL
RIGHTS OF MILITARY PERSONNEL BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL
RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY PURSUANT TO S. RES. NO.
260, 87TH CONG., 2D SESS., 780-781 (1962), IN EACH OF WHICH THE COURT
OF MILITARY APPEALS REVERSED COURT-MARTIAL CONVICTIONS ON THE GROUND OF
EXCESSIVE COMMAND INFLUENCE. 

/6/  SEE REID V. COVERT, 354 U.S. 1, 36. 

/7/  FOR SOBERING ACCOUNTS OF THE IMPACT OF SO-CALLED MILITARY
JUSTICE ON CIVIL RIGHTS OF MEMBERS OF THE ARMED SERVICES SEE HEARINGS
ON CONSTITUTIONAL RIGHTS OF MILITARY PERSONNEL BEFORE THE SUBCOMMITTEE
ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY
PURSUANT TO S. RES. NO. 260, 87TH CONG., 2D SESS., FEB. 20 AND 21,
MARCH 1, 2, 6, 9, AND 12, 1962; JOINT HEARINGS BEFORE THE SUBCOMMITTEE
ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY AND A
SPECIAL SUBCOMMITTEE OF THE SENATE ARMED SERVICES COMMITTEE, 89TH
CONG., 2D SESS., ON S. 745 ET AL., PT. 1, JAN. 18, 19, 25, AND 26,
MARCH 1, 2, AND 3, 1966, AND PT. 2.  FOR A NEWLY ENACTED MILITARY
JUSTICE ACT 233 82 STAT. 1335.  AND SEE SUMMARY-REPORT OF HEARINGS ON
CONSTITUTIONAL RIGHTS OF MILITARY PERSONNEL, BY THE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY,
PURSUANT TO S. RES. NO. 58, 88TH CONG., 1ST SESS. (1963) (COMM.
PRINT). 

/8/  THE RECORD OF HISTORICAL CONCERN OVER THE SCOPE OF COURT
MARTIAL JURISDICTION IS EXTENSIVELY REVIEWED IN MR. JUSTICE BLACK'S
OPINION FOR A PLURALITY OF THE COURT IN REID V. COVERT, 354 U.S. 1, 23
30.  SEE ALSO, DUKE & VOGEL, THE CONSTITUTION AND THE STANDING ARMY:
ANOTHER PROBLEM OF COURT-MARTIAL JURISDICTION, 13 VAND.L.REV.  435, 441
449 (1960); F. WIENER, CIVILIANS UNDER MILITARY JUSTICE (1967)
(HEREINAFTER CITED AS WIENER). 

/9/  SEE REID V. COVERT, 354 U.S. 1, 23-26. 

/10/  SEE WIENER C. 1. 

/11/  THE MUTINY ACT OF 1720, 7 GEO. 1, C. 6, PROVIDED THAT A
SOLDIER COULD BE COURT-MARTIALED FOR "ANY CAPITAL CRIME, OR . . . ANY
VIOLENCE OR OFFENCE AGAINST THE PERSON, ESTATE, OR PROPERTY OF ANY OF
THE SUBJECTS OF THIS KINGDOM, WHICH IS PUNISHABLE BY THE KNOWN LAWS OF
THE LAND" UNLESS THE CIVIL AUTHORITIES WITHIN EIGHT DAYS OF THE OFFENSE
DEMANDED THAT THE ACCUSED SOLDIER BE TURNED OVER TO THEM FOR TRIAL.  IN
NOVEMBER 1720, THE LAW OFFICERS OF THE ARMY RELIED ON THIS NEW
PROVISION OF THE MUTINY ACT TO GIVE AN OPINION THAT IT WAS PROPER TO
TRY A SOLDIER IN SCOTLAND-- WHERE ORDINARY CIVIL COURTS WERE
FUNCTIONING-- BY COURT-MARTIAL FOR AN OFFENSE WHICH WOULD HAVE BEEN
MURDER IF PROSECUTED IN THE CIVIL COURTS.  SEE WIENER 245-246.  THE
VERY NEXT YEAR-- PERHAPS IN RESPONSE TO THAT RULING, WIENER 14-- THE
PROVISION WAS ELIMINATED AND DID NOT REAPPEAR.  THE 1721 ACT AND ITS
SUCCESSORS PROVIDED FOR MILITARY TRIAL OF COMMON-LAW CRIMES AND ITS
SUCCESSORS PROVIDED FOR MILITARY TRIAL OF COMMON-LAW CRIMES ONLY WHERE
ORDINARY CIVIL COURTS WERE UNAVAILABLE.  SEE PRICHARD, THE ARMY ACT AND
MURDER ABROAD, 1954 CAMB.L.J. 232; WIENER 14, 24-28. 

/12/  FAILURE TO PRODUCE A SOLDIER FOR CIVIL TRIAL WAS A MILITARY
OFFENSE BY THE OFFICER CONCERNED.  E.G., BRITISH ARTICLES OF WAR OF
1765, SEC. 11, ART. 1, REPRINTED IN W. WINTHROP, MILITARY LAW AND
PRECEDENTS *1448, *1456 (2D ED. 1896, 1920 REPRINT) (HEREINAFTER CITED
AS WINTHROP). 

/13/  SEE REID V. COVERT, 354 U.S. 1, 27-28 AND N. 49. 

/14/  IN ITS BRIEF THE GOVERNMENT LISTS A LARGE NUMBER OF COURTS
MARTIAL IN THE VERY EARLY DAYS OF THE NATION WHICH IT CLAIMS INDICATE
THAT MILITARY TRIAL FOR CIVIL OFFENSES WAS COMMON IN THAT PERIOD.  THE
FACTS OF THE CASES, AS REFLECTED IN THE BRIEF SUMMARIES WHICH ARE
AVAILABLE TO US, SUGGEST NO SUCH CONCLUSION.  IN ALMOST EVERY CASE
SUMMARIZED, IT APPEARS THAT SOME SPECIAL MILITARY INTEREST EXISTED. 
MANY ARE PECULIARLY MILITARY CRIMES-- DESERTIONS, ASSAULTS ON AND
THEFTS FROM OTHER SOLDIERS, AND STEALING GOVERNMENT PROPERTY.  WHILE
THOSE ACTS MIGHT ALSO BE FELONIES, BY THE TIME OF THE REVOLUTIONARY WAR
OFFENSES SUCH AS THESE LONG HAD BEEN DEFINED AS DISTINCTIVELY MILITARY
CRIMES IN THE MUTINY ACTS.  MANY OF THE REMAINDER ARE IDENTIFIABLY
PROSECUTIONS FOR ABUSING MILITARY POSITION BY PLUNDERING THE CIVIL
POPULATION OR ABUSING ITS WOMEN WHILE ON DUTY.  MANY OF THE OTHER CASES
IN WHICH THE OFFENSE IS STEALING OR ASSAULT ON AN INDIVIDUAL WERE
PERHAPS OF THIS SORT ALSO, ESPECIALLY WHERE THE VICTIM IS REFERRED TO
AS "INHABITANT."  MOST OF THE REST SIMPLY RECITE THE OFFENDER AND THE
OFFENSE AND GIVE NO BASIS FOR JUDGING THE RELATIONSHIP OF THE OFFENSE
TO MILITARY DISCIPLINE.  THOSE FEW WHICH DO APPEAR TO INVOLVE CIVILIAN
CRIMES IN CLEARLY CIVILIAN SETTINGS APPEAR ALSO TO HAVE BEEN COMMITTED
BY OFFICERS.  IN THE 18TH CENTURY AT LEAST THE "HONOR" OF AN OFFICER
WAS THOUGHT TO GIVE A SPECIFIC MILITARY CONNECTION TO A CRIME OTHERWISE
WITHOUT MILITARY SIGNIFICANCE.  MOREOVER, ALL THOSE COURTS-MARTIAL HELD
BETWEEN 1773 AND 1783 WERE FOR THE TRIAL OF ACTS COMMITTED IN WARTIME
AND, GIVEN THE PATTERN OF FIGHTING IN THOSE DAYS, IN THE IMMEDIATE
THEATER OF OPERATIONS.     /15/  1776 ARTICLES OF WAR, SEC. 10, ART. 1,
REPRINTED IN WINTHROP *1494.     /16/  CF. EX PARTE MASON, 105 U.S.
696, 698, IN WHICH THE COURT SUSTAINING A COURT-MARTIAL CONVICTION,
UNDER THE GENERAL ARTICLE, OF A MILITARY GUARD WHO KILLED A PRISONER,
SAID, "(SHOOTING WITH INTENT TO KILL IS A CIVIL CRIME, BUT SHOOTING BY
A SOLDIER OF THE ARMY STANDING GUARD OVER A PRISON, WITH INTENT TO KILL
A PRISONER CONFINED THEREIN, IS NOT ONLY A CRIME AGAINST SOCIETY, BUT
AN ATROCIOUS BREACH OF MILITARY DISCIPLINE." 

/17/  LARCENY, ROBBERY, BURGLARLY, ARSON, MAYHEM, MANSLAUGHTER,
MURDER, ASSAULT AND BATTER WITH INTENT TO KILL, WOUNDING BY SHOOTING OR
STABBING WITH AN INTENT TO COMMIT MURDER, RAPE, OR ASSAULT AND BATTERY
WITH AN INTENT TO COMMIT RAPE.  REV. STAT. SEC. 1342, ART. 58 (1874). 

/18/  IT HAS BEEN SUGGESTED, AT VARIOUS TIMES, THAT THE PHRASE "WHEN
IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER" SHOULD BE READ TO
REQUIRE A GRAND JURY INDICTMENT IN ALL CASES "ARISING IN THE LAND OR
NAVAL FORCES, OR IN THE MILITIA," EXCEPT WHEN THE DEFENDANT IS IN
"SERVICE IN TIME OF WAR OR PUBLIC DANGER."  IT WAS DECIDED AT A VERY
EARLY DATE, HOWEVER, THAT THE ABOVE CLAUSE MODIFIES ONLY "MILITIA". 
THUS, THE GENERALLY ACCEPTED RULE IS THAT INDICTMENT BY GRAND JURY IS
NEVER NECESSARY "IN CASES ARISING IN THE LAND OR NAVAL FORCES" BUT IS
NECESSARY FOR MEMBERS OF THE MILITIA, EXCEPT WHEN THEY HAVE BEEN
"CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES" (ART. II, SEC. 2,
U.S. CONST.) "TO EXECUTE THE LAWS OF THE UNION, SUPPRESS INSURRECTIONS
AND REPEL INVASIONS."  ART. I, SEC. 8, U.S. CONST. 

"THE LIMITATION AS TO 'ACTUAL SERVICE IN TIME OF WAR OR PUBLIC
DANGER' RELATES ONLY TO THE MILITIA."  EX PARTE MASON, 105 U.S. 696,
701.  SEE ALSO SMITH V. WHITNEY, 116 U.S. 167, 186; KURTZ V. MOFFITT,
115 U.S. 487, 500; DYNES V. HOOPER, 20 HOW.  65. 

JOHNSON V. SAYRE, 158 U.S. 109, WAS A CASE IN WHICH A NAVY PAYMASTER
SOUGHT HABEA CORPUS FROM HIS COURT-MARTIAL CONVICTION FOR EMBEZZLEMENT
IN TIME OF PEACE BY ARGUING THAT HE WAS ENTITLED TO INDICTMENT BY GRAND
JURY: 

"THE DECISION BELOW IS BASED UPON THE CONSTRUCTION THAT THE WORDS
'WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER' REFER, NOT
MERELY TO THE LAST ANTECEDENT, 'OR IN THE MILITIA,' BUT ALSO TO THE
PREVIOUS CLAUSE, 'IN THE LAND OR NAVAL FORCES.'  THAT CONSTRUCTION IS
GRAMMATICALLY POSSIBLE.  BUT IT IS OPPOSED TO THE EVIDENT MEANING OF
THE PROVISION, TAKEN BY ITSELF, AND STILL MORE SO, WHEN IT IS
CONSIDERED TOGETHER WITH THE OTHER PROVISIONS OF THE CONSTITUTION." 
ID., AT 114.  AND SEE THOMPSON V. WILLINGHAM, 217 F.SUPP.  901
(D.C.M.D. PA.), AFF'D, 318 F.2D 657 (C.A. 3D CIR.). 

/19/  WINTHROP IN COMMENTING ON THE PHRASE "TO THE PREJUDICE OF GOOD
ORDER AND MILITARY DISCIPLINE" IN A PREDECESSOR ARTICLE TO ARTICLE 134
SAID: 

"A CRIME, THEREFORE, TO BE COGNIZABLE BY A COURT-MARTIAL UNDER THIS
ARTICLE, MUST HAVE BEEN COMMITTED UNDER SUCH CIRCUMSTANCES AS TO HAVE
DIRECTLY OFFENDED AGAINST THE GOVERNMENT AND DISCIPLINE OF THE MILITARY
STATE.  THUS SUCH CRIMES AS THEFT FROM OR ROBBERY OF AN OFFICER,
SOLDIER, POST TRADER, OR CAMP-FOLLOWER; FORGERY OF THE NAME OF AN
OFFICER, AND MANSLAUGHTER, ASSAULT WITH INTENT TO KILL, MAYHEM, OR
BATTERY, COMMITTED UPON A MILITARY PERSON; INASMUCH AS THEY DIRECTLY
AFFECT MILITARY RELATIONS AND PREJUDICE MILITARY DISCIPLINE, MAY
PROPERLY BE-- AS THEY FREQUENTLY HAVE BEEN-- THE SUBJECT OF CHARGES
UNDER THE PRESENT ARTICLE.  ON THE OTHER HAND, WHERE SUCH CRIMES ARE
COMMITTED UPON OR AGAINST CIVILIANS, AND NOT AT OR NEAR A MILITARY CAMP
OR POST, OR IN BREACH OF VIOLATION OF A MILITARY DUTY OR ORDER, THEY
ARE NOT IN GENERAL TO BE REGARDED AS WITHIN THE DESCRIPTION OF THE
ARTICLE, BUT ARE TO BE TREATED AS CIVIL RATHER THAN MILITARY
OFFENSES."  PP. *1124-*1125. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

I CONSIDER THAT THE TERMS OF THE CONSTITUTION AND THE PRECEDENTS IN
THIS COURT POINT CLEARLY TO SUSTAINING COURT-MARTIAL JURISDICTION IN
THIS INSTANCE.  THE COURT'S LARGELY ONE-SIDED DISCUSSION OF THE
COMPETING INDIVIDUAL AND GOVERNMENTAL INTERESTS AT STAKE, AND ITS
RELIANCE UPON WHAT ARE AT BEST WHOLLY INCONCLUSIVE HISTORICAL DATA,
FALL FAR SHORT OF SUPPORTING THE CONTRARY CONCLUSION WHICH THE MAJORITY
HAS REACHED.  IN SUM, I THINK THAT THE COURT HAS GRASPED FOR ITSELF THE
MAKING OF A DETERMINATION WHICH THE CONSTITUTION HAS PLACED IN THE
HANDS OF THE CONGRESS, AND THAT IN SO DOING THE COURT HAS THROWN THE
LAW IN THIS REALM INTO A DEMORALIZING STATE OF UNCERTAINTY.  I MUST
DISSENT. 

        I 

MY STARTING POINT IS THE LANGUAGE OF ART. I, SEC. 8, CL. 14, OF THE
CONSTITUTION, WHICH EMPOWERS THE CONGRESS "(TO MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES," AND THE FIFTH
AMENDMENT'S CORRELATIVE EXCEPTION FOR "CASES ARISING IN THE LAND OR
NAVAL FORCES." 

WRITING FOR A PLURALITY OF THE COURT IN REID V. COVERT, 354 U.S. 1
(1957), MR. JUSTICE BLACK EXPLAINED THAT IF THE "LANGUAGE OF CLAUSE 14
IS GIVEN ITS NATURAL MEANING . . . (THE TERM 'LAND AND NAVAL FORCES'
REFERS TO PERSONS WHO ARE MEMBERS OF THE ARMED SERVICES . . . ," ID.,
AT 19-20, AND THAT ACCORDINGLY THE FIFTH AMENDMENT'S EXCEPTION
ENCOMPASSES PERSONS "'IN' THE ARMED SERVICES."  ID., AT 22-23.  IN
KINSELLA V. SINGLETON, 361 U.S. 234 (1960), AGAIN LOOKING TO THE
CONSTITUTIONAL LANGUAGE, THE COURT NOTED THAT "MILITARY JURISDICTION
HAS ALWAYS BEEN BASED ON THE 'STATUS' OF THE ACCUSED, RATHER THAN ON
THE NATURE OF THE OFFENSE," ID., AT 243; THAT IS, WHETHER THE ACCUSED
"IS A PERSON WHO CAN BE REGARDED AS FALLING WITHIN THE TERM 'LAND AND
NAVAL FORCES.'"  ID., AT 241. 

IN THESE CASES AND MANY OTHERS, EX PARTE MILLIGAN, 4 WALL.  2, 123
(1866); COLEMAN V. TENNESSEE, 97 U.S. 509 (1879); SMITH V. WHITNEY, 116
U.S. 167, 184-185 (1886); JOHNSON V. SAYRE, 158 U.S. 109, 114 (1895);
GRAFTON V. UNITED STATES, 206 U.S. 333, 348 (1907), THIS COURT HAS
CONSISTENTLY ASSERTED THAT MILITARY "STATUS" IS A NECESSARY AND
SUFFICIENT CONDITION FOR THE EXERCISE OF COURT-MARTIAL JURISDICTION. 
THE COURT HAS NEVER PREVIOUSLY QUESTIONED WHAT THE LANGUAGE OF CLAUSE
14 WOULD SEEM TO MAKE PLAIN-- THAT, GIVEN THE REQUISITE MILITARY
STATUS, IT IS FOR CONGRESS AND NOT THE JUDICIARY TO DETERMINE THE
APPROPRIATE SUBJECT-MATTER JURISDICTION OF COURTS-MARTIAL.  SEE COLEMAN
V. TENNESSEE, SUPRA, AT 514. 

II. 

ENGLISH CONSTITUTIONAL HISTORY PROVIDES SCANT SUPPORT FOR THE
COURT'S NOVEL INTERPRETATION OF CLAUSE 14, AND THE PERTINENT AMERICAN
HISTORY PROVES, IF ANYTHING, QUITE THE CONTRARY. 

THE ENGLISH HISTORY ON WHICH THE MAJORITY RELIES REVEALS A LONG
STANDING AND MULTIFACETED STRUGGLE FOR POWER BETWEEN THE MILITARY AND
THE CROWN, ON THE ONE HAND, AND PARLIAMENT ON THE OTHER, WHICH FOCUSED,
INTER ALIA, ON THE KING'S ASSERTED INDEPENDENT PREROGATIVE TO TRY
SOLDIERS BY COURT-MARTIAL IN TIME OF PEACE.  SEE GENERALLY J. TANNER,
ENGLISH CONSTITUTIONAL CONFLICTS OF THE SEVENTEENTH CENTURY (1961). 
THE MARTIAL LAW OF THE TIME WAS, MOREOVER, ARBITRARY, AND ALIEN TO
ESTABLISHED LEGAL PRINCIPLES.  SEE 1 W. BLACKSTONE'S COMMENTARIES 413;
M. HALE, HISTORY AND ANALYSIS OF THE COMMON LAW IN ENGLAND 42 (6TH ED.
1820).  THUS, WHE, WITH THE GLORIOUS REVOLUTION OF 1688, PARLIAMENT
GAINED EXCLUSIVE AUTHORITY TO CREATE PEACETIME COURT-MARTIAL
JURISDICTION, IT EXERCISED THAT AUTHORITY SPAREINGLY:  THE EARLY MUTINY
ACTS PERMITTED TRIAL BY COURT-MARTIAL ONLY FOR THE CRIMES OF MUTINY,
SEDITION, AND DESERTION.  E.G., MUTINY ACT OF 1689, 1 W. & M.,SESS.  2,
C. 4. 

PARLIAMENT SUBSEQUENTLY EXPANDED THE MILITARY'S PEACETIME
JURISDICTION BOTH ABROAD AND AT HOME.  SEE MUTINY ACT OF 1712, 12 ANNE,
C. 13; MUTINY ACT OF 1803, 43 GEO. 3, C. 20.  AND, SIGNIFICANTLY, SEC.
46 OF THE MUTINY ACT OF 1720, 7 GEO. 1, C. 6, AUTHORIZED TRIAL BY COURT
MARTIAL FOR OFFENSES OF A NONMILITARY NATURE, IF THE INJURED CIVILIAN
MADE NO REQUEST THAT THE ACCUSED BE TRIED IN THE CIVIL COURTS.  SEE F.
WIENER, CIVILIANS UNDER MILITARY JUSTICE 13-14, 245-246 (1967).  /1/ 

THE BURDEN OF ENGLISH HISTORY WAS NOT LOST ON THE FRAMERS OF OUR
CONSTITUTION, WHO DOUBTLESS FEARED THE EXECUTIVE'S ASSERTION OF AN
INDEPENDENT MILITARY AUTHORITY UNCHECKED BY THE PEOPLE ACTING THROUGH
THE LEGISLATURE.  ARTICLE 9, SEC. 4, OF THE ARTICLES OF CONFEDERATION--
FROM WHICH ART. I, SEC. 8, CL. 14, OF THE CONSTITUTION WAS TAKEN /2/  -
WAS RESPONSIVE TO THIS APPREHENSION: 

     "THE UNITED STATES IN CONGRESS ASSEMBLED SHALL . . . HAVE THE

  SOLE AND EXCLUSIVE RIGHT AND POWER OF . . . MAKING RULES FOR THE

  GOVERNMENT AND REGULATION OF THE . . . LAND AND NAVAL FORCES, AND

  DIRECTING THEIR OPERATIONS." 

BUT NOTHING IN THE DEBATES OVER OUR CONSTITUTION INDICATES THAT THE
CONGRESS WAS FOREVER TO BE LIMITED TO THE PRECISE SCOPE OF COURT
MARTIAL JURISDICTION EXISTING IN 17TH CENTURY ENGLAND.  TO THE
CONTRARY, ALEXANDER HAMILTON STATED THAT CONGRESS' POWER TO PRESCRIBE
RULES FOR THE GOVERNMENT OF THE ARMED FORCES "OUGHT TO EXIST WITHOUT
LIMITATION:  BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT
AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDING EXTENT &
VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM."  THE
FEDERALIST, NO. 23.  CAN EXERCISE OF COURT-MARTIAL JURISDICTION PRIOR
TO, AND CONTEMPORANEOUS 

AMERICAN EXERCISE OF COURT-MARTIAL JURISDICTION PRIOR TO, AND
CONTEMPORANEOUS WITH, ADOPTION OF THE CONSTITUTION LENDS NO SUPPORT TO
THE COURT'S POSITION.  MILITARY RECORDS BETWEEN THE END OF THE WAR OF
INDEPENDENCE AND THE BEGINNING OF THE WAR OF 1812 SHOW FREQUENT
INSTANCES OF TRIALS BY COURT-MARTIAL, EAST OF THE FRONTIER, FOR
OFFENSES AGAINST CIVILIANS AND THE CIVIL LAWS, SUCH AS THEFT, ASSAULT,
AND KILLING LIVESTOCK.  /3/  MILITARY AUTHORITY TO TRY SOLDIERS FOR
SUCH OFFENSES DERIVED INITIALLY FROM THE "GENERAL ARTICLE" OF WAR,
FIRST ENACTED BY THE CONTINENTAL CONGRESS IN 1775, /4/  AND
INCORPORATED TODAY IN ART. 134, 10 U.S.C. 934.  W. WINTHROP'S MILITARY
LAW AND PRECEDENTS (2D ED. 1896), THE LEADING 19TH CENTURY TREATISE ON
MILITARY LAW, RECOGNIZED THAT THE GENERAL ARTICLE ENCOMPASSED CRIMES
"COMMITTED UPON OR AGAINST CIVILIANS . . . AT OR NEAR A MILITARY CAMP
OR POST," ID., AT 724 (1920 REPRINT), AND NOTED THAT EVEN THIS LIMITING
PRINCIPLE WAS NOT STRICTLY OBSERVED.  ID., AT 725, 730-732.  AND IN
GRAFTON V. UNITED STATES, 206 U.S. 333, 348 (1907), THE COURT HELD,
WITH RESPECT TO THE GENERAL ARTICLE, THAT: 

"THE CRIMES REFERRED TO IN THAT ARTICLE MANIFESTLY EMBRACE THOSE NOT
CAPITAL, COMMITTED BY OFFICERS OR SOLDIERS OF THE ARMY IN VIOLATION OF
PUBLIC LAW AS ENFORCED BY THE CIVIL POWER.  NO CRIMES COMMITTED BY
OFFICERS OR SOLDIERS OF THE ARMY EXCEPTED BY THE . . . ARTICLE FROM THE
JURISDICTION THUS CONFERRED UPON COURTS-MARTIAL, EXCEPT THOSE THAT ARE
CAPITAL IN THEIR NATURE.  . . . (THE JURISDICTION OF GENERAL COURTS
MARTIAL (IS) . . . CONCURRENT WITH THAT OF THE CIVIL COURTS."  /5/ 

EVEN IF THE PRACTICE OF EARLY AMERICAN COURTS-MARTIAL HAD BEEN
OTHERWISE, THIS WOULD HARDLY LEAD TO THE CONCLUSION THAT CONGRESS
LACKED POWER TO AUTHORIZE MILITARY TRIALS UNDER THE PRESENT
CIRCUMSTANCES.  IT CANNOT BE SERIOUSLY ARGUED AS A GENERAL MATTER THAT
THE CONSTITUTIONAL LIMITS OF CONGRESSIONAL POWER ARE COTERMINOUS WITH
THE EXTENT OF ITS EXERCISE IN THE LATE 18TH AND EARLY 19TH CENTURIES. 
/6/  AND HOWEVER RESTRICTIVELY THE POWER TO DEFINE COURT-MARTIAL
JURISDICTION MAY BE CONSTRUED, IT WOULD BE PATENTLY WRONG SO TO LIMIT
THAT POWER.  THE DISCIPLINARY REQUIREMENTS OF TODAY'S ARMED FORCE OF
OVER 3,000,000 MEN /7/  ARE MANIFESTLY DIFFERENT FROM THOSE OF THE 718
MAN ARMY /8/  IN EXISTENCE IN 1789.  CF. THE FEDERALIST, NO. 23,
QUOTED, SUPRA, AT 277.  BY THE SAME TOKEN, GIVEN AN OTHERWISE VALID
EXERCISE OF THE ARTICLE I POWER, I CAN PERCEIVE NO BASIS FOR JUDICIAL
CURTAILMENT OF COURT-MARTIAL JURISDICTION AS CONGRESS HAS ENACTED IT.

        III. 

IN THE LIGHT OF THE LANGUAGE AND HISTORY OF ART. 1, SEC. 8, CL. 14,
THE CONSTITUTION, AND THIS COURT'S HITHERTO CONSISTENT INTERPRETATION
OF THIS PROVISION, I DO NOT BELIEVE THAT THE RESOLUTION OF THE
CONTROVERSY BEFORE US CALLS FOR ANY BALANCING OF INTERESTS.  BUT IF ONE
DOES ENGAGE IN A BALANCING PROCESS, ONE CANNOT FAIRLY HOPE TO COME UP
WITH A MEANINGFUL ANSWER UNLESS THE INTERESTS ON BOTH SIDES ARE FULLY
EXPLORED.  THE COURT DOES NOT DO THIS.  RATHER, IT CHOOSES TO IGNORE
STRONG AND LEGITIMATE GOVERNMENTAL INTERESTS WHICH SUPPORT THE EXERCISE
OF COURT-MARTIAL JURISDICTION EVEN OVER "NONMILITARY" CRIMES. 

THE UNITED STATES HAS A VITAL INTEREST IN CREATING AND MAINTAINING
AN ARMED FORCE OF HONEST, UPRIGHT, AND WELL-DISCIPLINED PERSONS, AND IN
PRESERVING THE REPUTATION, MORALE, AND INTEGRITY OF THE MILITARY
SERVICES.  FURTHERMORE, BECAUSE ITS PERSONNEL MUST, PERFORCE, LIVE AND
WORK IN CLOSE PROXIMITY TO ONE ANOTHER, THE MILITARY HAS AN OBLIGATION
TO PROTECT EACH OF ITS MEMBERS FROM THE MISCONDUCT OF FELLOW
SERVICEMEN.  /9/  THE COMMISSION OF OFFENSES AGAINST THE CIVIL ORDER
MANIFESTS QUALITIES OF ATTITUDE AND CHARACTER EQUALLY DESTRUCTIVE OF
MILITARY ORDER AND SAFETY.  THE SOLDER WHO ACTS THE PART OF MR. HYDE
WHILE ON LEAVE IS, AT BEST, A PRECARIOUS DR. JEKYLL WHEN BACK ON DUTY. 
THUS, AS GENERAL GEORGE WASHINGTON RECOGNIZED: 

     "ALL IMPROPER TREATMENT OF AN INHABITANT BY AN OFFICER OR

  SOLDIER BEING DESTRUCTIVE OF GOOD ORDER AND DISCIPLINE AS WELL AS

  SUBVERSIVE OF THE RIGHTS OF SOCIETY IS AS MUCH A BREACH OF

  MILITARY, AS CIVIL LAW AND AS PUNISHABLE BY THE ONE AS THE

  OTHER."  14 WRITINGS OF GEORGE WASHINGTON 140-141 (BICENT. 
ED.). 

A SOLDIER'S MISCONDUCT DIRECTED AGAINST CIVILIANS, MOREOVER, BRINGS
DISCREDIT UPON THE SERVICE OF WHICH HE IS A MEMBER: 

     "UNDER EVERY SYSTEM OF MILITARY LAW FOR THE GOVERNMENT OF

  EITHER LAND OR NAVAL FORCES, THE JURISDICTION OF COURTS MARTIAL

  EXTENDS TO THE TRIAL AND PUNISHMENT OF ACTS OF MILITARY OR NAVAL

  OFFICERS WHICH TEND TO BRING DISGRACE AND REPROACH UPON THE

  SERVICE OF WHICH THEY ARE MEMBERS, WHETHER THOSE ACTS ARE DONE IN

  THE PERFORMANCE OF MILITARY DUTIES, OR IN A CIVIL POSITION.  . .
.

 "  SMITH V. WHITNEY, 116 U.S. 167, 183-184 (1886). 

THE GOVERNMENT, THUS, HAS A PROPER CONCERN IN KEEPING ITS OWN HOUSE IN
ORDER, BY DETERRING MEMBERS OF THE ARMED FORCES FROM ENGAGING IN
CRIMINAL MISCONDUCT ON OR OFF THE BASE, AND BY REHABILITATING OFFENDERS
TO RETURN THEM TO USEFUL MILITARY SERVICE.  /10/ 

THE EXERCISE OF MILITARY JURISDICTION IS ALSO RESPONSIVE TO OTHER
PRACTICAL NEEDS OF THE ARMED FORCES.  A SOLDIER DETAINED BY THE CIVIL
ARTHORITIES PENDING TRIAL, OR SUBSEQUENTLY IMPRISONED, IS TO THAT
EXTENT RENDERED USELESS TO THE SERVICE.  EVEN IF HE IS RELEASED ON BAIL
OR RECOGNIZANCE, OR ULTIMATELY PLACED ON PROBATION, THE CIVIL
AUTHORITIES MAY REQUIRE HIM TO REMAIN WITHIN THE JURISDICTION, THUS
MAKING HIM UNAVAILABLE FOR TRANSFER WITH THE REST OF HIS UNIT OR AS THE
SERVICE OTHERWISE REQUIRES. 

IN CONTRAST, A PERSON AWAITING TRIAL BY COURT-MARTIAL MAY SIMPLY BE
RESTRICTED TO LIMITS, AND MAY "PARTICIPATE IN ALL MILITARY DUTIES AND
ACTIVITIES OF HIS ORGANIZATION WHILE UNDER SUCH RESTRICTION."  MANUAL
FOR COURTS-MARTIAL, UNITED STATES (1969), 20B.  (SYMBOL OMITTED) THE
TRIAL NEED NOT BE HELD IN THE JURISDICTION WHERE THE OFFENSE WAS
COMMITTED.  ID., 8.  (SYMBOL OMITTED).  SEE, E.G., UNITED STATES V.
VOORHEES, 4 U.S.C.M.A. 509, 515, 16 C.M.R. 83, 89 (1954); CF. UNITED
STATES V. GRAVITT, 5 U.S.C.M.A. 249, 256, 17 C.M.R. 249, 256 (1954). 
AND PUNISHMENTS-- SUCH AS FORFEITURE OF PAY, RESTRICTION TO LIMITS, AND
HARD LABOR WITHOUT CONFINEMENT-- MAY BE IMPOSED THAT DO NOT KEEP THE
CONVICTED SERVICEMAN FROM PERFORMING HIS MILITARY DUTIES.  SEE MANUAL
FOR COURTS-MARTIAL, SUPRA, 126G, H, K. (SYMBOLS OMITTED). 

        IV. 

THE COURT DOES NOT EXPLAIN THE SCOPE OF THE "SERVICE-CONNECTED"
CRIMES AS TO WHICH COURT-MARTIAL JURISDICTION IS APPROPRIATE, BUT IT
APPEARS THAT JURISDICTION MAY EXTEND TO "NONMILITARY" OFFENSES IN
APPROPRIATE CIRCUMSTANCES.  THUS, THE COURT INTIMATES THAT IT IS
RELEVANT TO THE JURISDICTIONAL ISSUE IN THIS CASE THAT PETITIONER WAS
WEARING CIVILIAN CLOTHES RATHER THAN A UNIFORM WHEN HE COMMITTED THE
CRIMES.  ANTE, AT 259.  AND IT ALSO IMPLIES THAT PLUNDERING, ABUSING,
AND STEALING FROM, CIVILIANS MAY SOMETIMES CONSTITUTE A PUNISHABLE
ABUSE OF MILITARY POSITION, ANTE, AT 270, NO. 14, AND THAT OFFICERS MAY
BE COURT-MARTIALED FOR PURELY CIVILIAN CRIMES, BECAUSE "(IN THE 18TH
CENTURY . . . THE 'HONOR' OF AN OFFICER WAS THOUGHT TO GIVE A SPECIFIC
MILITARY CONNECTION TO A CRIME OTHERWISE WITHOUT MILITARY
SIGNIFICANCE."  /11/  IBID.  BUT IF THESE ARE ILLUSTRATIVE CASES, THE
COURT SUGGESTS NO GENERAL STANDARD FOR DETERMINING WHEN THE EXERCISE OF
COURT-MARTIAL JURISDICTION IS PERMISSIBLE. 

WHATEVER ROLE AN AD HOC JUDICIAL APPROACH MAY HAVE IN SOME AREAS OF
THE LAW, THE CONGRESS AND THE MILITARY ARE AT LEAST ENTITLED TO KNOW
WITH SOME CERTAINTY THE ALLOWABLE SCOPE OF COURT-MARTIAL JURISDICTION. 
OTHERWISE, THE INFINITE PERMUTATIONS OF POSSIBLY RELEVANT FACTORS ARE
BOUND TO CREATE CONFUSION AND PROLIFERATE LITIGATION OVER THE
JURISDICTIONAL ISSUE IN EACH INSTANCE.  ABSOLUTELY NOTHING IN THE
LANGUAGE, HISTORY, OR LOGIC OF THE CONSTITUTION JUSTIFIES THIS UNEASY
STATE OF AFFAIRS WHICH THE COURT HAS TODAY CREATED. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  THIS PROVISO WAS DROPPED IN THE MUTINY ACT OF 1721, 8 GEO. 1,
C. 3, AND COURT-MARTIAL JURISDICTION OVER SUCH OFFENSES WAS THEREAFTER
LIMITED BY THE ARTICLES OF WAR TO, INTER ALIA, "PLACES) BEYOND THE SEAS
. . . WHERE THERE IS NO FORM OF OUR CIVIL JUDICATURE IN FORCE."  F.
WIENER, CIVILIANS UNDER MILITARY JUSTICE 14 (1967). 

/2/  SEE 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF
1787, P. 330 (1911); 5 J. ELLIOT, DEBATES IN THE SEVERAL STATE
CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED
BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, P. 443 (1836). 

/3/  FOR EXAMPLE:  THE GENERAL ORDERS OF GEORGE WASHINGTON'S REPORT
THE TRIAL OF SOLDIERS FOR "KILLING A COW . . . , STEALING FOWLS . . . ,
AND STEALING ELEVEN GEESE.. . . " 26 WRITINGS OF GEORGE WASHINGTON 73
(BICENT.  ED) (H. Q., NEWBURGH, JANUARY 28, 1783), AND "FOR STEALING A
NUMBER OF SHIRTS AND BLANKETS OUT OF THE PUBLIC STORE AT NEWBURGH.  . .
. "  ID., AT 322 (H. Q., NEWBURGH, APRIL 15, 1783).  THE ORDERLY BOOKS
OF THE CORPS OF ARTILLERISTS AND ENGINEERS REPORT THE COURT-MARTIAL OF
SERGEANT HARRIS FOR "BEATING A MR. WILLAIMS AN INHABITANT LIVING NEAR
THIS GARRISON," BOOK 1, PP. 157-158 (WEST POINT, OCTOBER 5, 1795), AND
OF PRIVATE KELLY FOR "ABUSING AND USING VIOLANCE ON MRS. CRONKHYTE, A
CITIZEN OF THE UNITED STATES."  BOOK 3, PP. 45-46 (WEST POINT, JULY 5,
1796).  NUMEROUS OTHER INSTANCES OF MILITARY PUNISHMENT FOR NONMILITARY
CRIMES DURING THE PERIOD 1775-1815 ARE SUMMARIZED IN THE APPENDIX TO
THE BRIEF FOR THE UNITED STATES 35-52. 

/4/  "ALL CRIMES, NOT CAPITAL, AND ALL DISORDERS AND NEGLECTS, WHICH
OFFICERS AND SOLDIERS MAY BE GUILTY OF, TO THE PREJUDICE OF GOOD ORDER
AND MILITARY DISCIPLINE, THOUGH NOT MENTIONED IN THE ARTICLES OF WAR,
ARE TO BE TAKEN COGNIZANCE OF BY A GENERAL OR REGIMENTAL COURT-MARTIAL,
ACCORDING TO THE NATURE AND DEGREE OF THE OFFENCE, AND BE PUNISHED AT
THEIR DISCRETION."  W. WINTHROP, MILITARY LAW AND PRECEDENT 957 (2D ED.
1896, 1920 REPRINT). 

/5/  IN 1916, CONGRESS FOR THE FIRST TIME EXPLICITLY AUTHORIZED
PEACETIME COURT-MARTIAL JURISDICTION FOR SPECIFIC NONCAPITAL OFFENSES. 
ARTICLE 93, ARTICLES OF WAR, 39 STAT. 664.  IT ALSO REVISED THE GENERAL
ARTICLE, RENUMBERED ARTICLE 96, TO READ: 

"THOUGH NOT MENTIONED IN THESE ARTICLES, ALL DISORDERS AND NEGLECTS
TO THE PREJUDICE OF GOOD ORDER AND MILITARY DISCIPLINE, ALL CONDUCT OF
A NATURE TO BRING DISCREDIT UPON THE MILITARY SERVICE, AND ALL CRIMES
OR OFFENSES NOT CAPITAL, OF WHICH PERSONS SUBJECT TO MILITARY LAW MAY
BE GUILTY, SHALL BE TAKEN COGNIZANCE OF BY A GENERAL OR SPECIAL OR
SUMMARY COURT-MARTIAL, ACCORDING TO THE NATURE AND DEGREE OF THE
OFFENSE, AND PUNISHED AT THE DISCRETION OF SUCH COURT." 

TESTIFYING BEFORE THE SENATE SUBCOMMITTEE ON MILITARY AFFAIRS,
BRIGADIER GENERAL CROWDER, THE JUDGE ADVOCATE GENERAL OF THE ARMY,
EXPLAINED THE REVISION (CF. N. 4, SUPRA): 

"YOU WILL NOTICE SOME TRANSPOSITION OF LANGUAGE.  THE PHRASE 'TO THE
PREJUDICE OF GOOD ORDER AND MILITARY DISCIPLINE' IS PUT IN IN SUCH A
WAY THAT IT QUALIFIES ONLY 'ALL DISORDERS AND NEGLECTS.'  AS THE LAW
STANDS TO-DAY IT WAS OFTEN CONTENDED THAT THIS PHRASE QUALIFIED ALSO
'ALL CRIMES NOT CAPITAL.'  THERE WAS SOME ARGUMENT ABOUT WHETHER IT
WOULD REACH BACK THROUGH THAT CALUSE, 'ALL DISORDERS AND NEGLECTS,' TO
THE CLAUSE 'ALL CRIMES NOT CAPITAL' AND QUALIFY THE LATTER CLAUSE.  . .
. (BUT JUSTICE HARLAN, IN THE DECISION IN THE GRAFTON CASE, SEEMS TO
HAVE SET THE MATTER AT REST, AND I AM PROPOSING LEGISLATION ALONG THE
LINES OF JUSTICE HARLAN'S DECISION."  HEARINGS BEFORE THE SENATE
SUBCOMMITTEE ON MILITARY AFFAIRS, AN APPENDIX TO S. REP. NO. 130, 64TH
CONG., 1ST SESS., 25, 91. 

THE ACT OF MARCH 3, 1863, SEC. 30, 12 STAT. 736, AUTHORIZED
PUNISHMENT FOR SPECIFIC NONMILITARY CRIMES, INCLUDING CAPITAL ONES, IN
TIME OF WAR, INSURRECTION, OR REBELLION.  ARTICLE 92 OF THE 1916
ARTICLES OF WAR, 39 STAT. 664, MADE MURDER AND RAPE PUNISHABLE BY
DEATH, BUT PROVIDED THAT "NO PERSON SHALL BE TRIED BY COURT-MARTIAL FOR
MURDER OR RAPE COMMITTED WITH THE GEOGRAPHICAL LIMITS OF THE STATES OF
THE UNION AND THE DISTRICT OF COLUMBIA IN TIME OF PEACE."  THIS PROVISO
WAS DELETED IN THE UNIFORM CODE OF MILITARY JUSTICE, ARTICLES 118, 120,
10 U.S.C. 918, 920, SO THAT TODAY THERE IS NO JURISDICTIONAL
DISTINCTION BETWEEN CAPITAL AND NONCAPITAL OFFENSES. 

/6/  ON SUCH A THEORY, FOR EXAMPLE, CONGRESS COULD NOT HAVE
PERMISSIBLY WAITED, AS IT DID, UNTIL 1875, SEE ACT OF MARCH 3, 1875,
SEC. 1, 18 STAT. 470, TO CONFER GENERAL FEDERAL-QUESTION JURISDICTION
ON THE DISTRICT COURTS; THE PRESENT-DAY EXERCISE OF THIS JURISDICTION,
SEE 28 U.S.C. 1331, WOULD BE UNCONSTITUTIONAL. 

/7/  STATISTICAL ABSTRACT OF THE UNITED STATES 257 (1968). 

/8/  R. WEIGLEY, HISTORY OF THE UNITED STATES ARMY 566 (1967). 

/9/  CONGRESS MAY ALSO ASSUME THE RESPONSIBILITY OF PROTECTING
CIVILIANS FROM HARMS PERPETRATED BY MEMBERS OF THE ARMED FORCES.  FOR
THE MILITARY IS OFTEN RESPONSIBLE FOR BRINGING TO A LOCALITY THOUSANDS
OF ITS PERSONNEL-- WHOSE NUMBERS MAY BE AS GREAT AS, AND SOMETIMES
EXCEED, THE NEIGHBORING POPULATION-- THEREBY IMPOSING ON THE LOCAL LAW
ENFORCEMENT AGENCIES A BURDEN WHICH THEY MAY BE UNABLE TO CARRY. 

/10/  THUS, AT PETITIONER'S PRESENTENCE HEARING, CAPTAIN POWELL
TESTIFIED THAT "THROUGH PROPER REHABILITATION, O'CALLAHAN CAN MAKE A
GOOD SOLDIER," RECORD TRANSCRIPT 61, AND MAJOR TURNER TESTIFIED: 

"HE AS GIVEN SUPERIOR PERFORMANCE, AS FAR AS I KNOW.  . . . HE HAS
GONE THROUGH SCHOOL AND THE ARMY DOES HAVE A LOT OF MONEY WRAPPED UP IN
THIS MAN.  . . . I THINK AT THIS TIME, HERE THAT A REHABILITATION
PROGRAM IS IN ORDER."  ID., AT 64. 

/11/  IT IS, TO SAY THE LEAST, STRANGE THAT AS A CONSTITUTIONAL
MATTER THE MILITARY IS WITHOUT AUTHORITY TO DISCIPLINE AN ENLISTED MAN
FOR AN OFFENSE THAT IS PUNISHABLE IF COMMITTED BY AN OFFICER. 

VICTOR RABINOWITZ ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

JAMES VANR.  SPRINGER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
VINSON, BEATRICE ROSENBERG, AND ROGER A. PAULEY. 
..END :





GASTON COUNTY V. UNITED STATES, 395 U.S. 285 


       GASTON COUNTY, NORTH CAROLINA V. UNITED STATES. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA. 

        NO. 701.  ARGUED APRIL 23-24, 1969.-- DECIDED JUNE 2,
1969. 


THE VOTING RIGHTS ACT OF 1965 SUSPENDS THE USE OF ANY TEST OR DEVICE
AS A PREREQUISITE TO REGISTERING TO VOTE, IN ANY STATE OR POLITICAL
SUBDIVISION WHICH, ON NOVEMBER 1, 1964, MAINTAINED A TEST OR DEVICE AND
IN WHICH LESS THAN 50% OF THE VOTING-AGE RESIDENTS WERE REGISTERED OR
VOTED IN THE 1964 PRESIDENTIAL ELECTION.  USPENSION IS AUTOMATIC UPON
PUBLICATION BY THE ATTORNEY GENERAL AND THE DIRECTOR OF THE CENSUS,
RESPECTIVELY, THAT THESE CONDITIONS APPLY TO A PARTICULAR GOVERNMENTAL
UNIT.  SUCH DETERMINATIONS WERE PUBLISHED WITH RESPECT TO GASTON
COUNTY, NORTH CAROLINA, AND THE USE OF THE STATE'S LITERACY TEST WITHIN
THE COUNTY WAS THEREBY SUSPENDED.  APPELLANT BROUGHT SUIT TO REINSTATE
THE TEST, ASSERTING IN ACCORD WITH SEC. 4(A) OF THE ACT "THAT NO SUCH
TEST OR DEVICE HAS BEEN USED DURING THE FIVE YEARS PRECEDING THE FILING
OF THE ACTION FOR THE PURPOSE OR WITH THE EFFECT OF DENYING OR
ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR."  THE
GOVERNMENT CONTENDED THAT THE USE OF THE TEST DID HAVE THE "EFFECT OF
DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR"
BECAUSE IT PLACED AN ONEROUS BURDEN ON THE NEGROES FOR WHOM THE COUNTY
HAD MAINTAINED SEPARATE AND INFERIOR SCHOOLS.  THE THREE-JUDGE DISTRICT
COURT DENIED RELIEF, HOLDING THAT THE COUNTY HAD NOT MET ITS BURDEN OF
PROVING THAT ITS USE OF THE LITERACY TEST, IN THE CONTEXT OF ITS
HISTORIC MAINTENANCE OF SEGREGATED AND UNEQUAL SCHOOLS, DID NOT
DISCRIMINATORILY DEPRIVE NEGROES OF THE FRANCHISE.  HELD: 

1.  THE ACT'S LEGISLATIVE HISTORY DISCLOSES THAT CONGRESS WAS AWARE OF
THE POTENTIAL EFFECT OF UNEQUAL EDUCATIONAL OPPORTUNITIES UPON THE
RIGHT TO VOTE WHEN IT DESIGNED THE TEST-SUSPENSION PROVISIONS, AND IT
IS APPROPRIATE IN AN ACTION UNDER SEC. 4(A) FOR A COURT TO CONSIDER
WHETHER A LITERACY OR EDUCATIONAL REQUIREMENT HAS THE "EFFECT OF
DENYING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR" BECAUSE THE
STATE OR SUBDIVISION SEEKING TO IMPOSE THE REQUIREMENT HAS MAINTAINED
SEPARATE AND INFERIOR SCHOOLS FOR ITS NEGRO CITIZENS WHO ARE NOW OF
VOTING AGE.  PP. 289-293. 

2.  THE DISTRICT COURT'S CONCLUSION THAT APPELLANT HAD NOT MET THE
BURDEN IMPOSED BY SEC. 4(A) OF REFUTING THE GOVERNMENT'S PRIMA FACIE
CASE THAT THE USE OF THE LITERACY TEST COUPLED WITH THE COUNTY'S
SEGREGATED AND UNEQUAL SCHOOL SYSTEM HAD DISCRIMINATORILY DEPRIVED
NEGROES OF THE FRANCHISE, WAS NOT CLEARLY ERRONEOUS.  PP. 293-296. 

3.  APPELLANT'S CONTENTIONS THAT REREGISTRATION IN 1962 WAS
CONDUCTED FAIRLY AND IMPARTIALLY AND THAT SIGNIFICANT STRIDES HAVE BEEN
MADE IN EQUALIZING AND INTEGRATING ITS SCHOOL SYSTEM DO NOT REFUTE THE
FACT THAT FOR MANY YEARS THE COUNTY DEPRIVED ITS BLACK CITIZENS OF THE
EDUCATIONAL OPPORTUNITIES IT GRANTED ITS WHITE CITIZENS AND THAT
"IMPARTIAL" ADMINISTRATION OF THE LITERACY TEST TODAY WOULD PERPETUATE
THOSE INEQUITIES IN ANOTHER FORM.  PP. 296-297. 

288 F.SUPP.  678, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE VOTING RIGHTS ACT OF 1965 SUSPENDS THE USE OF ANY TEST OR DEVICE
/1/  AS A PREREQUISITE TO REGISTERING TO VOTE IN ANY ELECTION, IN ANY
STATE OR POLITICAL SUBDIVISION WHICH, ON NOVEMBER 1, 1964, MAINTAINED A
TEST OR DEVICE, AND IN WHICH LESS THAN 50% OF THE RESIDENTS OF VOTING
AGE WERE REGISTERED ON THAT DATE OR VOTED IN THE 1964 PRESIDENTIAL
ELECTION.  /2/  SUSPENSION IS AUTOMATIC UPON PUBLICATION IN THE FEDERAL
REGISTER OF DETERMINATIONS BY THE ATTORNEY GENERAL AND THE DIRECTOR OF
THE CENSUS, RESPECTIVELY, THAT THESE CONDITIONS APPLY TO A PARTICULAR
GOVERNMENTAL UNIT.  IF THE UNIT WISHES TO REINSTATE THE TEST OR DEVICE,
IT MUST BRING SUIT AGAINST THE GOVERNMENT IN A THREE-JUDGE DISTRICT
COURT IN THE DISTRICT OF COLUMBIA AND PROVE "THAT NO SUCH TEST OR
DEVICE HAS BEEN USED DURING THE FIVE YEARS PRECEDING THE FILING OF THE
ACTION FOR THE PURPOSE OR WITH THE EFFECT OF DENYING OR ABRIDGING THE
RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR," SEC. 4(A).  THE
CONSTITUTIONALITY OF THESE PROVISIONS WAS UPHELD IN SOUTH CAROLINA V.
KATZENBACH, 383 U.S. 301 (1966). 

ON MARCH 29, 1966, THE ATTORNEY GENERAL AND THE DIRECTOR OF THE
CENSUS PUBLISHED THE NECESSARY DETERMINATIONS WITH RESPECT TO
APPELLANT, GASTON COUNTY, NORTH CAROLINA.  USE OF THE STATE'S LITERACY
TEST /3/  WITHIN THE COUNTY WAS THEREBY SUSPENDED.  ON AUGUST 18, 1966,
APPELLANT BROUGHT THIS ACTION IN THE DISTRICT COURT, MAKING THE
REQUISITE AVERMENTS AND SEEKING TO REINSTATE THE LITERACY TEST. 

THE UNITED STATES OPPOSED THE GRANTING OF RELIEF ON THE GROUND,
INTER ALIA, THAT USE OF THE TEST HAD "THE EFFECT OF DENYING OR
ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR" BECAUSE IT
PLACED A SPECIALLY ONEROUS BURDEN ON THE COUNTY'S NEGRO CITIZENS FOR
WHOM THE COUNTY HAD MAINTAINED SEPARATE AND INFERIOR SCHOOLS. 

AFTER A FULL TRIAL ON THIS AND OTHER ISSUES, THE DISTRICT COURT
DENIED THE RELIEF REQUESTED, HOLDING THAT APPELLANT HAD NOT MET ITS
BURDEN OF PROVING THAT ITS USE OF THE LITERACY TEST, IN THE CONTEXT OF
ITS HISTORIC MAINTENANCE OF SEGREGATED AND UNEQUAL SCHOOLS, DID NOT
DISCRIMINATORILY DEPRIVE NEGROES OF THE FRANCHISE.  /4/  GASTON COUNTY
V. UNITED STATES, 288 F.SUPP.  678 (1968).  THE COURT MADE CLEAR: 

"(WE DO NOT RELY SOLELY ON THE FACT THAT THE SCHOOLS IN GASTON
COUNTY HAVE BEEN SEGREGATED DURING THE PERIOD WHEN PERSONS PRESENTLY OF
VOTING AGE WERE OF SCHOOL AGE, BUT INSTEAD HAVE REVIEWED THE EVIDENCE
ADDUCED BY THE GOVERNMENT IN THIS CASE AND CONCLUDED THAT THE NEGRO
SCHOOLS WERE OF INFERIOR QUALITY IN FACT AS WELL AS IN LAW."  ID., AT
689-690, N. 23. 

PURSUANT TO SEC. 4(A) OF THE ACT, THE COUNTY APPEALED DIRECTLY TO
THIS COURT.  WE NOTED PROBABLE JURISDICTION, 393 U.S. 1011 (1969), AND
WE AFFIRM FOR SUBSTANTIALLY THE REASONS GIVEN BY THE MAJORITY IN THE
DISTRICT COURT. 

APPELLANT CONTENDS THAT THE DECISION OF THE DISTRICT COURT IS
ERRONEOUS ON THREE SCORES:  FIRST, AS A MATTER OF STATUTORY
CONSTRUCTION AND LEGISLATIVE HISTORY, THE COURT COULD NOT CONSIDER
GASTON COUNTY'S PRACTICE OF EDUCATIONAL DISCRIMINATION IN DETERMINING
WHETHER ITS LITERACY TEST HAD THE EFFECT OF DISCRIMINATORILY DENYING
THE FRANCHISE; SENOND, ON THE FACTS OF THIS CASE, APPELLANT MET ITS
BURDEN OF PROVING THAT THE EDUCATION IT PROVIDED HAD NO SUCH EFFECT;
AND THIRD, WHATEVER MAY HAVE BEEN THE SITUATION IN THE PAST, GASTON
COUNTY HAS NOT FOSTERED DISCRIMINATION IN EDUCATION OR VOTING IN RECENT
YEARS.  WE CONSIDER THESE ARGUMENTS IN TURN. 

        I. 

THE LEGISLATIVE HISTORY OF THE VOTING RIGHTS ACT OF 1965 DISCLOSES
THAT CONGRESS WAS FULLY COGNIZANT OF THE POTENTIAL EFFECT OF UNEQUAL
EDUCATIONAL OPPORTUNITIES UPON EXERCISE OF THE FRANCHISE.  THIS CAUSAL
RELATIONSHIP WAS, INDEED, ONE OF THE PRINCIPAL ARGUMENTS MADE IN
SUPPORT OF THE ACT'S TEST-SUSPENSION PROVISIONS.  ATTORNEY GENERAL
KATZENBACH TESTIFIED BEFORE THE SENATE COMMITTEE ON THE JUDICIARY: 

     "IT MIGHT BE SUGGESTED THAT HIS KIND OF (VOTING)
DISCRIMINATORY

 COULD BE ENDED IN A DIFFERENT WAY-- BY WIPING THE REGISTRATION

  BOOKS CLEAN AND REQUIRING ALL VOTERS, WHITE OR NEGRO, TO REGISTER

  ANEW UNDER A UNIFORMLY APPLIED LITERACY TEST. 

     " . . . (SUCH AN APPROACH WOULD NOT SOLVE, BUT WOULD COMPOUND
OUR PRESENT PROBLEMS. 

     "TO SUBJECT EVERY CITIZEN TO A HIGHER LITERACY STANDARD WOULD,

  INEVITABLY, UNFAIRLY AGAINST NEGROES-- NEGROES WHO HAVE FOR

  DECADES BEEN SYSTEMATICALLY DENIED EDUCATIONAL OPPORTUNITY EQUAL

 TO THAT AVAILABLE TO THE WHITE POPULATION.  ALTHOUGH THE

  DISCREDITED 'SEPARATE BUT EQUAL' DOCTRINE HAD COLORABLE

  CONSTITUTIONAL LEGITIMACY UNTIL 1954, THE NOTORIOUS AND TRAGIC

  FACT IS THAT EDUCATIONAL OPPORTUNITIES WERE PATHETICALLY INFERIOR

  FOR THOUSANDS OF NEGROES WHO WANT TO VOTE TODAY. 

     "THE IMPACT OF A GENERAL REREGISTRATION WOULD PRODUCE REAL

  IRONY.  YEARS OF VIOLATION OF THE 14TH AMENDMENT, RIGHT OF EQUAL

  PROTECTION THROUGH EQUAL EDUCATION, WOULD BECOME THE EXCUSE FOR

  CONTINUING VIOLATION OF THE 15TH AMENDMENT, RIGHT TO VOTE." 

  HEARINGS ON S. 1564 BEFORE THE SENATE COMMITTEE ON THE JUDICIARY,

  89TH CONG., 1ST SESS., 22. 

MR. KATZENBACH TESTIFIED SIMILARLY BEFORE THE HOUSE COMMITTEE.  SEE
HEARINGS ON H.R. 6400 BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE
ON THE JUDICIARY, 89TH CONG., 1ST SESS., 18-19, 49.  AND SIGNIFICANTLY,
THE REPORT OF THE SENATE JUDICIARY COMMITTEE EXPLICITLY ASSERTED: 

"(THE EDUCATION DIFFERENCES BETWEEN WHITES AND NEGROES IN THE AREAS
TO BE COVERED BY THE PROHIBITIONS-- DIFFERENCES WHICH ARE REFLECTED IN
THE RECORD BEFORE THE COMMITTEE-WOULD MEAN THAT EQUAL APPLICATION OF
THE TESTS WOULD ABRIDGE 15TH AMENDMENT RIGHTS.  THIS ADVANTAGE TO
WHITES IS DIRECTLY ATTRIBUTABLE TO THE STATES AND LOCALITIES
INVOLVED."  S. REP. NO. 162, PT. 3, 89TH CONG., 1ST SESS., 16.  /5/ 

APPELLANT'S RESPONSE TO THIS SEEMINGLY UNEQUIVOCAL LEGISLATIVE
HISTORY IN, IN ESSENCE, THAT IT PROVES TOO MUCH.  AS JUDGE GASCH PUT IT
IN HIS SEPARATE OPINION BELOW: 

"(IT IS CLEAR THAT THE VOTING RIGHTS ACT WAS PRIMARILY DIRECTED AT
THE SOUTHERN STATES.  IN THE ACT, THE CONGRESS ALLOWED A FAIR
OPPORTUNITY FOR A CERTIFIED UNIT TO REBUT THE PRESUMPTION THAT ITS
LITERACY TEST WAS USED IN A DISCRIMINATORY MANNER.  THUS, SECTIONS 4
AND 5 OF THE ACT PROVIDE A PROCEDURE WHEREBY A STATE OR POLITICAL
SUBDIVISION WHICH HAS BEEN THE SUBJECT OF A CERTIFICATION UNDER THE
ACT, MAY PETITION THIS COURT FOR DECLARATORY RELIEF TO REINSTATE ITS
TEST BEFORE THE FIVE-YEAR SUSPENSION PERIOD HAS ELAPSED.  SECTIONS 4
AND 5 WILL PROVIDE NO REMEDY TO A SOUTHERN STATE, HOWEVER, IF, AS THE
MAJORITY FINDS, A SEGREGATED SCHOOL SYSTEM COUPLED WITH CENSUS DATA
SHOWING HIGHER LITERACY AND EDUCATION FOR WHITES THAN FOR NEGROES, IS
SUFFICIENT TO PRECLUDE RECOVERY UNDER THE ACT.  WE CAN TAKE JUDICIAL
NOTICE THAT THE SEGREGATED SCHOOL SYSTEM WAS THE PREVAILING SYSTEM
THROUGHOUT THE SOUTH.  IF THIS WERE WHAT CONGRESS HAD IN MIND, IT WOULD
HAVE STATED THAT NO TEST COULD BE USED WHERE LITERACY WAS HIGHER AMONG
WHITES THAN AMONG NEGROES.  I DO NOT BELIEVE THAT CONGRESS INTENDED
THAT THE ACT BE INTERPRETED IN SUCH A WAY AS TO RENDER SECS. 4 AND 5
INAPPLICABLE TO SOUTHERN STATES OR THOSE WHICH HAD SEGREGATED
EDUCATIONS SYSTEMS."  288 F.SUPP.,AT 690, 695. 

APPELLANT'S CONTENTIONS FUNDAMENTALLY MISCONCEIVE THE IMPORT OF THE
MAJORITY OPINION BELOW, AS WE READ IT.  THAT OPINION EXPLICITLY
DISCLAIMS ESTABLISHING ANY PER SE RULE.  THE COURT'S DECISION IS
PREMISED NOT MERELY ON GASTON COUNTY'S HISTORIC MAINTENANCE OF A DUAL
SCHOOL SYSTEM, BUT ON SUBSTANTIAL EVIDENCE THAT THE COUNTY DEPRIVED ITS
BLACK RESIDENTS OF EQUAL EDUCATIONAL OPPORTUNITIES, WHICH IN TURN
DEPRIVED THEM OF AN EQUAL CHANCE TO PASS THE LITERACY TEST.  CONSISTENT
WITH THE COURT'S HOLDING, A STATE OR SUBDIVISION MAY DEMONSTRATE THAT
ALTHOUGH ITS SCHOOLS SUFFERED FROM THE INEQUALITY INHERENT IN ANY
SEGREGATED SYSTEM, SEE BROWN V. BOARD OF EDUCATION, 347 U.S. 483
(1954), THE DUAL EDUCATIONAL SYSTEM HAD NO APPRECIABLE DISCRIMINATORY
EFFECT ON THE ABILITY OF PERSONS OF VOTING AGE TO MEET A LITERACY
REQUIREMENT. 

IT IS OF NO CONSEQUENCE THAT CONGRESS MIGHT HAVE DEALT WITH THE
EFFECTS OF EDUCATIONAL DISCRIMINATION BY EMPLOYING A COVERAGE FORMULA
DIFFERENT FROM THE ONE IT ENACTED.  THE COVERAGE FORMULA CHOSEN BY
CONGRESS WAS DESIGNED TO BE SPEEDY, OBJECTIVE, AND INCONTROVERTIBLE;
/6/  IT IS TRIGGERED APPROPRIATELY BY VOTING OR REGISTRATION FIGURES. 
THE AREAS AT WHICH THE ACT WAS DIRECTED

  'SHARE TWO CHARACTERISTICS INCORPORATED BY CONGRESS INTO THE
COVERAGE FORMULA:  THE USE OF

  TESTS AND DEVICES FOR VOTER REGISTRATION, AND A VOTING RATE IN
THE 1964 PRESIDENTIAL ELECTION

  AT LEAST 12 POINTS BELOW THE NATIONAL AVERAGE.  TESTS AND DEVICES
ARE RELEVANT TO VOTING

  DISCRIMINATION BECAUSE OF THEIR LONG HISTORY AS A TOOL FOR
PERPETRATING THE EVIL; A LOW VOTING

  RATE IS PERTINENT FOR THE OBVIOUS REASON THAT WIDESPREAD
DISENFRANCHISEMENT MUST INEVITABLY

  AFFECT THE NUMBER OF ACTUAL VOTERS.  ACCORDINGLY, THE COVERAGE
FORMULA IS RATIONAL IN BOTH

 PRACTICE AND THEORY."  SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301,
330 (1966). 

IN CONTRAST, A COVERAGE FORMULA BASED ON EDUCATIONAL DISPARITIES, OR
ONE BASED ON LITERACY RATES, WOULD BE ADMINISTRATIVELY CUMBERSOME:  THE
DESIGNATION OF RACIALLY DISPARATE SCHOOL SYSTEMS IS NOT SUSCEPTIBLE OF
SPEEDY, OBJECTIVE, AND INCONTROVERTIBLE DETERMINATION; AND THE BUREAU
OF THE CENSUS COLLECTS NO ACCURATE COUNTY STATISTICS ON LITERACY. 
FURTHERMORE, A COVERAGE FORMULA BASED ON EITHER OF THESE FACTORS WOULD
NOT SERVE AS AN APPROPRIATE BASIS FOR SUSPENDING ALL OF THE TESTS AND
DEVICES ENCOMPASSED BY SEC. 4(C) OF THE ACT-- FOR EXAMPLE, A "GOOD
MORAL CHARACTER" REQUIREMENT. 

WE CONCLUDE THAT IN AN ACTION BROUGHT UNDER SEC. 4(A) OF THE VOTING
RIGHTS ACT OF 1965, IT IS APPROPRIATE FOR A COURT TO CONSIDER WHETHER A
LITERACY OR EDUCATIONAL REQUIREMENT HAS THE "EFFECT OF DENYING . . .
THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR" BECAUSE THE STATE OR
SUBDIVISION WHICH SEEKS TO IMPOSE THE REQUIREMENT HAS MAINTAINED
SEPARATE AND INFERIOR SCHOOLS FOR ITS NEGRO RESIDENTS WHO ARE NOW OF
VOTING AGE.  /8/

        II. 

IN AN ACTION FOR DECLARATORY RELIEF UNDER SEC. 4(A) OF THE VOTING
RIGHTS ACT OF 1965, THE PLAINTIFF CARRIES THE BURDEN OF PROOF.  THE
PLAINTIFF CANNOT BE EXPECTED TO RAISE AND REFUTE EVERY CONCEIVABLE
DEFENSE, HOWEVER, CF. FEDERAL RULES OF CIVIL PROCEDURE, RULE 9(C), AND
IT WAS INCUMBENT UPON THE GOVERNMENT IN THE CASE AT BAR TO PUT INTO
ISSUE ITS CONTENTION THAT APPELLANT'S USE OF THE LITERACY TEST, COUPLED
WITH ITS RACIALLY DEPRIVED NEGROES OF THE FRANCHISE.  THE PLAINTIFF
APPELLANT WOULD THEN HAVE THE BURDEN OF PROVING THE CONTRARY.  SEE
SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301, 332 (1966).  THE GOVERNMENT
DID PLACE THIS CONTENTION IN ISSUE, AND IN SUPPORT THEREOF IT
INTRODUCED CONSIDERABLE EVIDENCE, WHICH WE NOW SUMMARIZE. 

ALL PERSONS OF VOTING AGE IN 1966 WHO ATTENDED SCHOOLS IN GASTON
COUNTY /9/  ATTENDED RACIALLY SEPARATE AND UNEQUAL SCHOOLS.  /10/
BETWEEN THE YEARS 1908 AND 1929, WHEN APPROXIMATELY 45% OF THE VOTING
AGE POPULATION WAS OF SCHOOL AGE, THE SALARIES OF NEGRO TEACHERS IN THE
COUNTY RANGED FROM A LOW OF ABOUT 20% TO A HIGH OF ABOUT 50% OF THOSE
OF THEIR WHITE COLLEAGUES.  IN 1919, WHEN UNIFORM TEACHER CERTIFICATION
WAS FIRST REQUIRED IN NORTH CAROLINA, 98% OF THE WHITE TEACHERS, BUT
ONLY 5% OF THE NEGRO TEACHERS, QUALIFIED FOR REGULAR STATE TEACHING
CERTIFICATES.  THE REMAINING 95% OF THE NEGRO TEACHERS HELD "SECOND
GRADE" CERTIFICATES.  THE BIENNIEL REPORT OF THE STATE SUPERINTENDENT
OF PUBLIC INSTRUCTION, 1918-1920, DESCRIBED A SECOND GRADE CERTIFICATE
AS THE "LOWEST PERMIT ISSUED TO ANY TEACHER IN THE STATE.  IT IS NOT A
CERTIFICATE IN THE PROPER SENSE, BUT MERELY A PERMIT TO TEACH UNTIL
SOMEONE CAN BE FOUND WHO IS COMPETENT TO TAKE THE PLACE." 

DURING THIS SAME PERIOD, THE PER-PUPIL VALUATION OF NEGRO SCHOOL
PROPERTY IN THE COUNTY RANGED FROM 20% TO ABOUT 40% OF THAT OF THE
WHITE SCHOOLS.  A MUCH HIGHER PROPORTION OF NEGRO THAN OF WHITE
CHILDREN ATTENDED ONE-ROOM, ONE-TEACHER, WOODEN SCHOOLHOUSES WHICH
CONTAINED NO DESKS. 

BY THE 1938-1939 SCHOOL YEAR, NEGRO TEACHERS' SALARIES HAD INCREASED
TO ABOUT 70% OF THAT OF WHITE TEACHERS, AND BY THE 1948-1949 SCHOOL
YEAR, SALARIES WERE ALMOST EQUAL.  AT THIS LATER DATE, THE PER-PUPIL
VALUATION OF NEGRO SCHOOL PROPERTY WAS STILL ONLY ABOUT ONE-THIRD THAT
OF THE WHITE SCHOOLS. 

OF THOSE PERSONS OVER 25 YEARS OLD AT THE TIME OF THE 1960 CENSUS,
THE PROPORTION OF NEGROES WITH NO SCHOOLING WHATEVER WAS TWICE THAT OF
WHITES IN GASTON COUNTY; THE PROPORTION OF NEGROES WITH FOUR OR LESS
YEARS OF EDUCATION WAS SLIGHTLY LESS THAN TWICE THAT OF WHITES. 

IN 1962, GASTON COUNTY CHANGED ITS SYSTEM OF REGISTRATION AND
REQUIRED A GENERAL REREGISTRATION OF ALL VOTERS.  NORTH CAROLINA LAW
PROVIDES THAT "(EVERY PERSON PRESENTING HIMSELF FOR REGISTRATION SHALL
BE ABLE TO READ AND WRITE ANY SECTION OF THE CONSTITUTION IN THE
ENGLISH LANGUAGE."  N.C. CONST., ART. VI, SEC. 4; SEE N. 3, SUPRA.  THE
STATE SUPREME COURT HAS DESCRIBED THIS REQUIREMENT AS "RELATIVELY HIGH,
EVEN AFTER MORE THAN A HALF CENTURY OF FREE PUBLIC SCHOOLS AND
UNIVERSAL EDUCATION," BAZEMORE V. BERTIE COUNTY BOARD OF ELECTIONS, 254
N.C. 398, 402, 119 S.E.2D 637, 641 (1961), /11/  AND A NEGRO MINISTER
ACTIVE IN VOTER REGISTRATION TESTIFIED THAT IT PLACED AN ESPECIALLY
HEAVY BURDEN ON THE COUNTY'S OLDER NEGRO CITIZENS.  APPENDIX 131-132. 
IT WAS PUBLICIZED THROUGHOUT THE COUNTY THAT THE LITERACY REQUIREMENT
WOULD BE ENFORCED.  A REGISTRAR TOLD A NEGRO LEADER NOT TO BRING
ILLITERATES TO REGISTER.  SOME NEGROES WHO ATTEMPTED TO REGISTER WERE,
IN FACT, REJECTED BECAUSE THEY COULD NOT PASS THE TEST, AND OTHERS DID
NOT ATTEMPT TO REGISTER, KNOWING THAT THEY COULD NOT MEET THE
STANDARD.    WITH THIS EVIDENCE, THE GOVERNMENT HAD NOT ONLY PUT ITS
CONTENTION IN ISSUE, BUT HAD MADE OUT A PRIMA FACIE CASE.  IT IS ONLY
REASONABLE TO INFER THAT AMONG BLACK CHILDREN COMPELLED TO ENDURE A
SEGREGATED AND INFERIOR EDUCATION, FEWER WILL ACHIEVE ANY GIVEN DEGREE
OF LITERACY THAN WILL THEIR BETTER-EDUCATED WHITE CONTEMPORARIES.  /12/
AND ON THE GOVERNMENT'S SHOWING, IT WAS CERTAINLY PROPER TO INFER THAT
GASTON COUNTY'S INFERIOR NEGRO SCHOOLS PROVIDED MANY OF ITS NEGRO
RESIDENTS WITH A SUBLITERATE EDUCATION, AND GAVE MANY OTHERS LITTLE
INDUCEMENT TO ENTER OR REMAIN IN SCHOOL. 

THE ONLY EVIDENCE INTRODUCED BY THE APPELLANT IN REBUTTAL WAS THE
TESTIMONY OF THEBAUD JEFFERS, A NEGRO PRINCIPAL OF A NEGRO HIGH SCHOOL,
WHO HAD FIRST COME TO GASTON COUNTY IN 1932.  HE STATE THAT "(ALL OF
OUR SCHOOLS . . . WOULD HAVE BEEN ABLE TO TEACH ANY NEGRO CHILD TO READ
AND WRITE SO THAT HE COULD READ A NEWSPAPER, SO THAT HE COULD READ ANY
SIMPLE MATERIAL," AND SO THAT HE COULD PASS THE LITERACY TEST. 
APPENDIX 169. 

THE DISTRICT COURT CHARACTERIZED MR. JEFFERS AS AN "INTERESTED
WITNESS," AND FOUND HIS TESTIMONY "UNPERSUASIVE" WHEN MEASURED AGAINST
THE GOVERNMENT'S EVIDENCE.  THE COURT FURTHER NOTED THAT THE
PRINCIPAL'S KNOWLEDGE ABOUT THE SCHOOL SYSTEM DATED ONLY FROM 1932, BY
WHICH TIME SOME OF THE MORE BLATANT EDUCATIONAL DISPARITIES WERE BEING
REDUCED.  ALMOST ONE-HALF OF THE COUNTY'S BLACK ADULTS WERE OF SCHOOL
AGE WELL BEFORE MR. JEFFERS' ARRIVAL. 

THE DISTRICT COURT CONCLUDED THAT APPELLANT HAD NOT MET THE BURDEN
IMPOSED BY SEC. 4(A) OF THE VOTING RIGHTS ACT OF 1965.  THIS WAS NOT
CLEARLY ERRONEOUS. 

  III. 

APPELLANT URGES THAT IT ADMINISTERED THE 1962 REREGISTRATION IN A
FAIR AND IMPARTIAL MANNER, AND THAT IN RECENT YEARS IT HAS MADE
SIGNIFICANT STRIDES TOWARD EQUALIZING AND INTEGRATING ITS SCHOOL
SYSTEM.  ALTHOUGH WE ACCEPT THESE CLAIMS AS TRUE, THEY FALL WIDE OF THE
MARK.  AFFORDING TODAY'S NEGRO YOUTH EQUAL EDUCATIONAL OPPORTUNITIES
WILL DOUBTLESS PREPARE THEM TO MEET, ON EQUAL TERMS, WHATEVER STANDARDS
OF LITERACY ARE REQUIRED WHEN THEY REACH VOTING AGE.  IT DOES NOTHING
FOR THEIR PARENTS, HOWEVER.  FROM THIS RECORD, WE CANNOT ESCAPE THE SAD
TRUTH THAT THROUGHOUT THE YEARS GASTON COUNTY SYSTEMATICALLY DEPRIVED
ITS BLACK CITIZENS OF THE EDUCATIONAL OPPORTUNITIES IT GRANTED TO ITS
WHITE CITIZENS.  "IMPARTIAL" ADMINISTRATION OF THE LITERACY TEST TODAY
WOULD SERVE ONLY TO PERPETRATE THESE INEQUITIES IN A DIFFERENT FORM. 

THE JUDGMENT OF THE DISTRICT COURT IS

              AFFIRMED. 

/1/  "THE PHRASE 'TEST OR DEVICE' SHALL MEAN ANY REQUIREMENT THAT A
PERSON AS A PREREQUISITE FOR VOTING OR REGISTRATION FOR VOTING (1)
DEMONSTRATE THE ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY
MATTER, (2) DEMONSTRATE ANY EDUCATIONAL ACHIEVEMENT OR HIS KNOWLEDGE OF
ANY PARTICULAR SUBJECT, (3) POSSESS GOOD MORAL CHARACTER, OR (4) PROVE
HIS QUALIFICATIONS BY THE VOUCHER OF REGISTERED VOTERS OR MEMBERS OF
ANY OTHER CLASS."  VOTING RIGHTS ACT OF 1965, SEC. 4(C), 79 STAT. 438,
42 U.S.C. 1973BC) (1964 ED., SUPP. III). 

/2/  SEC. 4(A), 79 STAT. 438, 42 U.S.C. 1973BA) (1964 ED., SUPP.
III). 

/3/  N.C. CONST., ART. VI, SEC. 4, PROVIDES:  "EVERY PERSON
PRESENTING HIMSELF FOR REGISTRATION SHALL BE ABLE TO READ AND WRITE ANY
RELEVANT TO THIS CASE, N.C. GEN. STAT. SEC. 163-28 MIRRORED THE
CONSTITUTIONAL PROVISION.  IN 1967 THE STATUTE WAS RENUMBERED SEC. 163
58 AND ITS WORDING WAS AMENDED IN MINOR ASPECTS. 

/4/  JUDGE WRIGHT WROTE THE MAJORITY OPINION, IN WHICH JUDGE
ROBINSON JOINED.  JUDGE GASCH DISSENTED FROM THE COURT'S HOLDING, SEE
INFRA., AT 290-291, BUT WOULD HAVE DENIED APPELLANT RELIEF FOR
DIFFERENT REASONS. 

/5/  IN VIEW OF THIS OBVIOUS RELATIONSHIP, AND ACKNOWLEDGEMENT OF IT
BY THE ATTORNEY GENERAL AND CONGRESS, IT IS OF NO CONSEQUENCE THAT THE
ACT WAS EXPLICITLY DESIGNED TO ENFORCE THE FIFTEENTH, AND NOT THE
FOURTEENTH AMENDMENT.  SEE, E.G., HEARINGS ON S. 1564 BEFORE THE SENATE
COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., 141-142; HEARINGS ON
H.R. 6400 BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 89TH CONG., 1ST SESS., 49-50, 66, 102.  THE ACT WAS, OF
COURSE, CONCERNED SOLELY WITH VOTING RIGHTS, AND DISCRIMINATION IN
EDUCATION BEARS ON THE ACT ONLY INSOFAR AS IT MAY RESULT IN
DISCRIMINATORY ABRIDGMENT OF THE FRANCHISE. 

/6/  SECTION 4(B) OF THE ACT MAKES THE DETERMINATIONS BY THE
ATTORNEY GENERAL AND THE DIRCTOR OF THE CENSUS UNREVIEWABLE IN ANY
COURT.  "(THE FINDINGS NOT SUBJECT TO REVIEW CONSIST OF OBJECTIVE
STATISTICAL DETERMINATIONS BY THE CENSUS BUREAU AND A ROUTINE ANALYSIS
OF STATE STATUTES BY THE JUSTICE DEPARTMENT.  THESE FUNCTIONS ARE
UNLIKELY TO AROUSE ANY PLAUSIBLE DISPUTE."  SOUTH CAROLINA V.
KATZENBACH, 383 U.S. 301, 333 (1966). 

/7/  SEE N. 1, SUPRA; HEARINGS ON H.R. 6400 BEFORE SUBCOMMITTEE NO.
5 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., 30
31. 

/8/  WE HAVE NO OCCASION TO DECIDE WHETHER THE ACT WOULD PERMIT
REINSTATEMENT OF A LITERACY TEST IN THE FACE OF RACIALLY DISPARATE
EDUCATIONAL OR LITERACY ACHIEVEMENTS FOR WHICH A GOVERNMENT BORE NO
RESPONSIBILITY. 

/9/  WE ASSUME, AND APPELLANT DOES NOT SUGGEST OTHERWISE, THAT MOST
OF THE ADULT RESIDENTS OF GASTON COUNTY RESIDED THERE AS CHILDREN.  CF.
BUREAU OF THE CENSUS, 1960 CENSUS OF POPULATION, VOL. I, PT. 35, TABLE
39.  IT WOULD SEEM A MATTER OF NO LEGAL SIGNIFICANCE THAT THEY MAY HAVE
BEEN EDUCATED IN OTHER COUNTIES OR STATES ALSO MAINTAINING SEGREGATED
AND UNEQUAL SCHOOL SYSTEMS. 

/10/  GASTON COUNTY V. UNITED STATES, 288 F.SUPP.  678, 686 (1968). 
UNLESS OTHERWISE INDICATED, THE FACTS AND STATISTICS SET OUT BELOW,
WHICH ARE NOT CONTROVERTED, APPEAR IN THE OPINION OF THE DISTRICT
COURT, 288 F.SUPP.,AT 686-687, OR IN GOVERNMENT'S EXHIBIT NO. 2
(EXCERPTS FROM THE REPORTS OF THE SUPERINTENDENT OF PUBLIC INSTRUCTION
OF NORTH CAROLINA). 

/11/  ELSEWHERE IN ITS OPINION, THE COURT STATED THAT A REGISTRANT
MUST BE ABLE TO READ ALOUD, AS WELL AS COPY, A SECTION OF THE STATE
CONSTITUTION.  254 N.C.,AT 404, 119 S.E.2D,AT 642.  APPELLANT'S
REGISTRARS REQUIRED ONLY THAT A REGISTRANT COPY ONE OF THREE SENTENCES
OF THE CONSTITUTION. 

/12/  THIS IS, INDEED, AN INFERENCE THAT APPEARS THROUGHOUT THE
ACT'S LEGISLATIVE HISTORY.  SEE SUPRA, AT 289-290. 

MR. JUSTICE BLACK DISSENTS FOR SUBSTANTIALLY THE SAME REASONS HE
STATED IN SEC. (B) OF HIS SEPARATE OPINION IN SOUTH CAROLINA V.
KATZENBACH, 383 U.S. 301, 355, 358. 

GRADY B. SCOTT ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WAS WESLEY E. MCDONALD, SR.

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL LEONARD, FRANCIS X. BEYTAGH, JR., AND DAVID L. NORMAN. 
..END :






DANIEL V. PAUL, 395 U.S. 298 


       DANIEL ET AL. V. PAUL. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 488.  ARGUED MARCH 24-25, 1969.-- DECIDED JUNE 2,
1969. 


LAKE NIXON CLUB IS AN AMUSEMENT PLACE OWNED BY RESPONDENT AND HIS
WIFE, LOCATED 12 MILES FROM LITTLE ROCK, ARK.  IT HAS RECREATION
FACILITIES, INCLUDING SWIMMING, BOATING, AND DANCING, AND A SNACK BAR
SERVING FOUR FOOD ITEMS, AT LEAST THREE OF WHICH CONTAIN INGREDIENTS
COMING FROM OUTSIDE THE STATE.  THE CLUB LEASES 15 PADDLE BOATS ON A
ROYALTY BASIS FROM AN OKLAHOMA COMPANY (FROM WHICH IT PURCHASED ONE
BOAT) AND OPERATES A JUKE BOX WHICH, ALONG WITH RECORDS IT PLAYS, IS
MANUFACTURED OUTSIDE ARKANSAS.  THE CLUB IS ADVERTISED IN A MONTH
MAGAZINE DISTRIBUTED AT LITTLE ROCK HOTELS, MOTELS, AND RESTAURANTS, IN
A MONTHLY NEWSPAPER PUBLISHED AT A NEARBY AIR FORCE BASE, AND OVER TWO
AREA RADIO STATIONS.  APPROXIMATELY 100,000 WHITES PATRONIZE THE
ESTABLISHMENT EACH SEASON AND ARE ROUTINELY FURNISHED "MEMBERSHIP"
CARDS IN THE "CLUB" ON PAYMENT OF A 25[ FEE.  NEGROES ARE DENIED
ADMISSION.  PETITIONERS, NEGRO RESIDENTS OF LITTLE ROCK, BROUGHT THIS
CLASS ACTION TO ENJOIN RESPONDENT FROM DENYING THEM ADMISSION TO THE
LAKE NIXON CLUB, ALLEGING THAT IT IS A "PUBLIC ACCOMMODATION" SUBJECT
TO THE PROVISIONS OF TITLE II OF THE CIVIL RIGHTS ACT OF 1964, AND THAT
RESPONDENT VIOLATED THE ACT BY REFUSING PETITIONERS ADMISSION SOLELY ON
RACIAL GROUNDS.  TITLE II PROHIBITS RACIAL DISCRIMINATION AT PLACES OF
PUBLIC ACCOMMODATION WHOSE OPERATION AFFECT COMMERCE.  THE DISTRICT
COURT, THOUGH FINDING THAT PETITIONERS HAD BEEN REFUSED ADMISSION
SOLELY BECAUSE THEY WERE NEGROES AND THAT THE LAKE NIXON CLUB IS NOT A
PRIVATE CLUB (TO WHICH TITLE II DOES NOT APPLY", DISMISSED THE
COMPLAINT ON THE GROUND THAT THE ESTABLISHMENT IS NOT A "PUBLIC
ACCOMMODATION" WITHIN THE MEANING OF THE ACT.  THE COURT OF APPEALS
AFFIRMED.  SECTION 201(B) OF THE ACT INCLUDES AMONG THE CATEGORIES OF
COVERED PUBLIC ACCOMMODATIONS:  "(2) ANY RESTAURANT, . . . LUNCHROOM,
LUNCH COUNTER, SODA FOUNTAIN, OR OTHER FACILITY PRINCIPALLY ENGAGED IN
SELLING FOOD FOR CONSUMPTION ON THE PREMISES . . . ," "(3) ANY . . .
PLACE OF . . . ENTERTAINMENT," AND "(4) ANY ESTABLISHMENT . . . WITHIN
THE PREMISES OF WHICH IS PHYSICALLY LOCATED ANY SUCH COVERED
ESTABLISHMENT, AND . . . WHICH HOLDS ITSELF OUT AS SERVING PATRONS OF
SUCH COVERED ESTABLISHMENT."  UNDER SEC. 201(C) A PLACE OF PUBLIC
ACCOMMODATION AFFECTS COMMERCE IF "(2) . . . (IT IS AN ESTABLISHMENT
DESCRIBED IN SEC. 201(B)(2) AND) SERVES OR OFFERS TO SERVE INTERSTATE
TRAVELERS OR A SUBSTANTIAL PORTION OF THE FOOD IT SERVES . . . HAS
MOVED IN COMMERCE; (3) (IT IS AN ESTABLISHMENT DESCRIBED IN SEC.
201(B)(3) AND) CUSTOMARILY PRESENTS FILMS, PERFORMANCES . . . OR OTHER
SOURCES OF ENTERTAINMENT WHICH MOVE IN COMMERCE;" OR "(4) (IT IS AN
ESTABLISHMENT DESCRIBED IN SEC. 201(B)(4) AND) THERE IS PHYSICALLY
LOCATED WITHIN ITS PREMISES, AN ESTABLISHMENT THE OPERATIONS OF WHICH
AFFECT COMMERCE.  . . . "  HELD: 

1.  LAKE NIXON CLUB, AS THE COURTS BELOW CORRECTLY HELD, IS NOT A
PRIVATE CLUB SINCE IT ROUTINELY AFFORDS "MEMBERSHIP" TO ALL WHITES AND
HAS NONE OF THE ATTRIBUTES OF SELF-GOVERNMENT AND MEMBER-OWNERSHIP
TRADITIONALLY ASSOCIATED WITH PRIVATE CLUBS.  PP. 301-302. 

2.  THE LAKE NIXON'S CLUB'S SNACK BAR IS A "PLACE OF PUBLIC
ACCOMMODATION" UNDER SEC. 201(B)(2) OF THE ACT SINCE IT IS "PRINCIPALLY
ENGAGED IN SELLING FOOD FOR CONSUMPTION ON THE PREMISES."  PP. 302
304. 

3.  THE OPERATIONS OF THE SNACK BAR "AFFECT COMMERCE" UNDER SEC.
201(C)(2) OF THE ACT.  P. 304. 

(A) THE OWNERS' CHOICE OF ADVERTISING MEDIA LEAVES NO DOUBT THAT
THEY SEEK A BROAD-BASED PATRONAGE FROM AN AUDIENCE THEY KNOW INCLUDES
INTERSTATE TRAVELERS; AND IT WOULD BE UNREALISTIC TO ASSUME THAT NONE
OF THE 100,000 PATRONS SERVED EACH SEASON IS AN INTERSTATE TRAVELER. 
P. 304. 

(B) A "SUBSTANTIAL PORTION OF THE FOOD" SERVED AT THE SNACK BAR HAS
MOVED IN INTERSTATE COMMERCE.  P. 305. 

4.  THE SNACK BAR'S STATUS AS A COVERED ESTABLISHMENT AUTOMATICALLY
BRINGS THE ENTIRE LAKE NIXON CLUB FACILITY WITHIN THE COVERAGE OF TITLE
II OF THE ACT BY VIRTUE OF SECS. 201(B)(4) AND 201(C)(4).  P. 305. 

5.  THE LAKE NIXON CLUB IS A COVERED ACCOMMODATION UNDER SECS.
201(B)(3) AND 201(C)(3) OF THE ACT AS IT IS A "PLACE OF ENTERTAINMENT,"
WHICH, IN THE LIGHT OF THE OVERRIDING PURPOSE OF TITLE II TO REMOVE
DISCRIMINATORY DENIALS OF ACCESS TO PUBLIC FACILITIES, INCLUDES
RECREATIONAL AREAS AND IS NOT, AS RESPONDENT ARGUES, LIMITED TO
SPECTATOR ENTERTAINMENT.  PP. 305-308. 

6.  THE CLUB'S OPERATIONS CLEARLY "AFFECT COMMERCE" WITHIN THE
MEANING OF SEC. 201(C)(3) SINCE THE PADDLE BOATS AND THE JUKE BOX AND
ITS RECORDS ARE "SOURCES OF ENTERTAINMENT (THAT) MOVE IN COMMERCE."  P.
308. 

395 F.2D 118, REVERSED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, NEGRO RESIDENTS OF LITTLE ROCK, ARKANSAS, BROUGHT THIS
CLASS ACTION IN THE DISTRICT COURT FRO THE EASTERN DISTRICT OF ARKANSAS
TO ENJOIN RESPONDENT FROM DENYING THEM ADMISSION TO A RECREATIONAL
FACILITY CALLED LAKE NIXON CLUB OWNED AND OPERATED BY RESPONDENT, EUELL
PAUL, AND HIS WIFE.  THE COMPLAINT ALLEGED THAT LAKE NIXON CLUB WAS A
"PUBLIC ACCOMMODATION" SUBJECT TO THE PROVISIONS OF TITLE II OF THE
CIVIL RIGHTS ACT OF 1964, 78 STAT. 243, 42 U.S.C. 2000A ET SEQ., AND
THAT RESPONDENT VIOLATED THE ACT IN REFUSING PETITIONERS ADMISSION
SOLELY ON RACIAL GROUNDS.  /1/  AFTER TRIAL, THE DISTRICT COURT,
ALTHOUGH FINDING THAT RESPONDENT HAD REFUSED PETITIONERS ADMISSION
SOLELY BECAUSE THEY WERE NEGROES, /2/  DISMISSED THE COMPLAINT ON THE
GROUND THE LAKE NIXON CLUB WAS NOT WITHIN ANY OF THE CATEGORIES OF
"PUBLIC ACCOMMODATIONS" COVERED BY THE 1964 ACT.  263 F.SUPP.  412
(1967).  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED, ONE
JUDGE DISSENTING.  395 F.2D 118 (1968).  WE GRANTED CERTIORARI.  393
U.S. 975 (1968).  WE REVERSE. 

LAKE NIXON CLUB, LOCATED 12 MILES WEST OF LITTLE ROCK, IS A 232-ACRE
AMUSEMENT AREA WITH SWIMMING, BOATING, SUN BATHING, PICNICKING,
MINIATURE GOLF, DANCING FACILITIES, AND A SNACK BAR.  THE PAULS
PURCHASED THE LAKE NIXON SITE IN 1962 AND SUBSEQUENTLY OPERATED THIS
AMUSEMENT BUSINESS THERE IN A RACIALLY SEGREGATED MANNER. 

TITLE II OF THE CIVIL RIGHTS ACT OF 1964 ENACTED A SWEEPING
PROHIBITION OF DISCRIMINATION OR SEGREGATION ON THE GROUND OF RACE,
COLOR, RELIGION, OR NATIONAL ORIGIN AT PLACES OF PUBLIC ACCOMMODATION
WHOSE OPERATIONS AFFECT COMMERCE.  /3/  THIS PROHIBITION DOES NOT
EXTEND TO DISCRIMINATION OR SEGREGATION AT PRIVATE CLUBS.  /4/  BUT, AS
BOTH COURTS BELOW PROPERLY FOUND, LAKE NIXON IS NOT A PRIVATE CLUB.  IT
IS SIMPLY A BUSINESS OPERATED FOR A PROFIT WITH NONE OF THE ATTRIBUTES
OF SELF-GOVERNMENT AND MEMBER-OWNERSHIP TRADITIONALLY ASSOCIATED WITH
PRIVATE CLUBS.  IT IS TRUE THAT FOLLOWING ENACTMENT OF THE CIVIL RIGHTS
ACT OF 1964, THE PAULS BEGAN TO REFER TO THE ESTABLISHMENT AS A PRIVATE
CLUB.  THEY EVEN BEGAN TO REQUIRE PATRONS TO PAY A 25-CENT "MEMBERSHIP"
FEE, WHICH GAINS A PURCHASER A "MEMBERSHIP" CARD ENTITLING HIM TO
ENTER THE CLUB'S PREMISES FOR AN ENTIRE SEASON AND, ON PAYMENT OF
SPECIFIED ADDITIONAL FEES, TO USE THE SWIMMING, BOATING, AND MINIATURE
GOLF FACILITIES.  BUT THIS "MEMBERSHIP" DEVICE SEEMS NO MORE THAN A
SUBTERFUGE DESIGNED TO AVOID COVERAGE OF THE 1964 ACT.  WHITE PERSONS
ARE ROUTINELY PROVIDED "MEMBERSHIP" CARDS, AND SOME 100,000 WHITES
VISIT THE ESTABLISHMENT EACH SEASON.  AS THE DISTRICT COURT FOUND, LAKE
NIXON IS "OPEN IN GENERAL TO ALL OF THE PUBLIC WHO ARE MEMBERS OF THE
WHITE RACE."  263 F.SUPP.,AT 418.  NEGROES, ON THE OTHER HAND, ARE
UNIFORMLY DENIED "MEMBERSHIP" CARDS, AND THUS ADMISSION, BECAUSE OF THE
PAULS'  FEAR THAT INTEGRATION WOULD "RUIN" THE "BUSINESS."  THE
CONCLUSION OF THE COURTS BELOW THAT LAKE NIXON IS NOT A PRIVATE CLUB IS
PLAINLY CORRECT-- INDEED, RESPONDENT DOES NOT CHALLENGE THAT CONCLUSION
HERE. 

WE THEREFORE TURN TO THE QUESTION WHETHER LAKE NIXON CLUB IS "A
PLACE OF PUBLIC ACCOMMODATION" AS DEFINED BY SEC. 201(B) OF THE 1964
ACT, AND, IF SO, WHETHER ITS OPERATIONS "AFFECT COMMERCE" WITHIN THE
MEANING OF SEC. 201(C) OF THAT ACT. 

PUBLIC ACCOMMODATIONS.  THREE OF THESE CATEGORIES ARE RELEVANT HERE: 

     "EACH OF THE FOLLOWING ESTABLISHMENTS WHICH SERVES THE PUBLIC

  IS A PLACE OF PUBLIC ACCOMMODATION WITHIN THE MEANING OF THIS

TITLE IF ITS OPERATIONS

AFFECT COMMERCE.  . . .

.          .          .          . 

     "(2) ANY RESTAURANT, CAFETERIA, LUNCHROOM, LUNCH COUNTER, SODA

  FOUNTAIN, OR OTHER FACILITY PRINCIPALLY ENGAGED IN SELLING FOOD

  FOR CONSUMPTION ON THE PREMISES, INCLUDING, BUT NOT LIMITED TO,

  ANY SUCH FACILITY LOCATED ON THE PREMISES OF ANY RETAIL

  ESTABLISHMENT; OR ANY GASOLINE STATION; 

     "(3) ANY MOTION PICTURE HOUSE, THEATER, CONCERT HALL, SPORTS

ARENA, STADIUM OR OTHER PLACE OF EXHIBITION OR ENTERTAINMENT;

  AND 

     "(4) ANY ESTABLISHMENT (A) . . . (II) WITHIN THE PREMISES OF

  WHICH IS PHYSICALLY LOCATED ANY SUCH COVERED ESTABLISHMENT, AND

  (B) WHICH HOLDS ITSELF OUT AS SERVING PATRONS OF SUCH COVERED

  ESTABLISHMENT." 

OPERATIONS OF AND ESTABLISHMENT IN ANY OF THESE CATEGORIES AFFECT
COMMERCE WITHIN THE MEANING OF TITLE II: 

     "THE OPERATIONS OF AN ESTABLISHMENT AFFECT COMMERCE WITHIN THE

  MEANING OF THIS TITLE IF . . . (2) IN THE CASE OF AN

  ESTABLISHMENT DESCRIBED IN PARAGRAPH (2) (SET OUT SUPRA) . . . ,

 IT SERVES OR OFFERS TO SERVE INTERSTATE TRAVELERS OR A

SUBSTANTIAL PORTION OF THE FOOD WHICH IT SERVES, OR GASOLINE OR

  OTHER PRODUCTS WHICH IT SELLS, HAS MOVED IN COMMERCE; (3) IN THE

  CASE OF AN ESTABLISHMENT DESCRIBED IN PARAGRAPH (3) (SET OUT

  SUPRA) . . . , IT CUSTOMARILY PRESENTS FILMS, PERFORMANCES,

  ATHLETIC TEAMS, EXHIBITIONS, OR OTHER SOURCES OF ENTERTAINMENT

  WHICH MOVE IN COMMERCE; AND (4) IN THE CASE OF AN ESTABLISHMENT

  DESCRIBED IN PARAGRAPH (4) (SET OUT SUPRA) . . . , THERE IS

  PHYSICALLY LOCATED WITHIN ITS PREMISES, AN ESTABLISHMENT THE

  OPERATIONS OF WHICH AFFECT COMMERCE WITHIN THE MEANING OF THIS

  SUBSECTION.  FOR PURPOSES OF THIS SECTION, 'COMMERCE' MEANS

TRAVEL, TRADE, TRAFFIC, COMMERCE, TRANSPORTATION, OR

  COMMUNICATION AMONG THE SEVERAL STATES.  . . . " 

PETITIONERS ARGUE FIRST THAT LAKE NIXON'S SNACK BAR IS A COVERED
PUBLIC ACCOMMODATION UNDER SECS. 201(B)(2) AND 201(C)(2), AND THAT AS
SUCH IT BRINGS THE ENTIRE ESTABLISHMENT WITHIN THE COVERAGE OF TITLE II
UNDER SECS. 201(B)(4) AND 201(C)(4).  CLEARLY, THE SNACK BAR IS
"PRINCIPALLY ENGAGED IN SELLING FOOD FOR CONSUMPTION ON THE PREMISES." 
THUS, IT IS A COVERED PUBLIC ACCOMMODATION IF "IT SERVES OR OFFERS TO
SERVE INTERSTATE TRAVELERS OR A SUBSTANTIAL PORTION OF THE FOOD WHICH
IT SERVES . . . HAS MOVED IN COMMERCE."  WE FIND THAT THE SNACK BAR IS
A COVERED PUBLIC ACCOMMODATION UNDER EITHER OF THESE STANDARDS. 

THE PAULS ADVERTISE THE LAKE NIXON CLUB IN A MONTHLY MAGAZINE CALLED
"LITTLE ROCK TODAY," WHICH IS DISTRIBUTED TO GUESTS AT LITTLE ROCK
HOTELS, MOTELS, AND RESTAURANTS, TO ACQUAINT THEM WITH AVAILABLE
TOURIST ATTRACTIONS IN THE AREA.  REGULAR ADVERTISEMENTS FOR LAKE NIXON
WERE ALSO BROADCAST OVER TWO AREA RADIO STATIONS.  IN ADDITION, LAKE
NIXON HAS ADVERTISED IN THE "LITTLE ROCK AIR FORCE BASE," A MONTHLY
NEWSPAPER PUBLISHED AT THE LITTLE ROCK AIR FORCE BASE, IN JACKSONVILLE,
ARKANSAS.  THIS CHOICE OF ADVERTISING MEDIA LEAVES NO DOUBT THAT THE
PAULS WERE SEEKING BROAD-BASED PATRONAGE FROM AN AUDIENCE WHICH THEY
KNEW TO INCLUDE INTERSTATE TRAVELERS.  THUS, THE LAKE NIXON CLUB
UNQUESTIONABLY OFFERED TO SERVE OUT-OF-STATE VISITORS TO THE LITTLE
ROCK AREA.  AND IT WOULD BE UNREALISTIC TO ASSUME THAT NONE OF THE
100,000 PATRONS ACTUALLY SERVED BY THE CLUB EACH SEASON WAS AN
INTERSTATE TRAVELER.  /5/  SINCE THE LAKE NIXON CLUB OFFERED TO SERVE
AND SERVED OUT-OF-STATE PERSONS, AND SINCE THE CLUB'S SNACK BAR WAS
ESTABLISHED TO SERVE ALL PATRONS OF THE ENTIRE FACILITY, WE MUST
CONCLUDE THAT THE SNACK BAR OFFERED TO SERVE AND SERVED OUT-OF-STATE
PERSONS.  SEE HAMM V. ROCK HILL, 379 U.S. 306, 309 (1964); SEE ALSO
WOOTEN V. MOORE, 400 F.2D 239 (C.A. 4TH CIR. 1968). 

THE RECORD, ALTHOUGH NOT AS COMPLETE ON THIS PONT AS MIGHT BE
DESIRED, ALSO DEMONSTRATES THAT A "SUBSTANTIAL PORTION OF THE FOOD"
SERVED BY THE LAKE NIXON CLUB SNACK BAR HAS MOVED IN INTERSTATE
COMMERCE.  THE SNACK BAR SERVES A LIMITED FARE-- HOT DOGS AND
HAMBURGERS ON BUNS, SOFT DRINKS, AND MILK.  THE DISTRICT COURT TOOK
JUDICIAL NOTICE OF THE FACT THAT THE "PRINCIPAL INGREDIENTS GOING INTO
THE BREAD WERE PRODUCED AND PROCESSED IN OTHER STATES" AND THAT
"CERTAIN INGREDIENTS (OF THE SOFT DRINKS) WERE PROBABLY OBTAINED . . .
FROM OUT-OF-STATE SOURCES."  263 F.SUPP.,AT 418.  THUS, AT THE VERY
LEAST, THREE OF THE FOUR FOOD ITEMS SOLD AT THE SNACK BAR CONTAIN
INGREDIENTS ORIGINATING OUTSIDE OF THE STATE.  THERE CAN BE NO SERIOUS
DOUBT THAT A "SUBSTANTIAL PORTION OF THE FOOD" SERVED AT THE SNACK BAR
HAS MOVED IN INTERSTATE COMMERCE.  SEE KATZENBACH V. MCCLUNG, 379 U.S.
294, 296-297 (1964); GREGORY V. MEYER, 376 F.2D 509, 511, N. 1 (C.A.
5TH CIR. 1967). 

THE SNACK BAR'S STATUS AS A COVERED ESTABLISHMENT AUTOMATICALLY
BRINGS THE ENTIRE LAKE NIXON FACILITY WITHIN THE AMBIT OF TITLE II.
CIVIL RIGHTS ACT OF 1964, SECS. 201(B)(4) AND 201(C)(4), SET OUT SUPRA;
SEE H.R. REP. NO. 914, 88TH CONG., 1ST SESS., 20; FAZZIO REAL ESTATE
CO. V. ADAMS, 396 F.2D 146 (C.A. 5TH CIR. 1968).  /6/ 

PETITIONERS ALSO ARGUE THAT THE LAKE NIXON CLUB IS A COVERED PUBLIC
ACCOMMODATION UNDER SECS. 201(B)(3) AND 201(C)(3) OF THE 1964 ACT. 
THESE SECTIONS PROSCRIBE DISCRIMINATION BY "ANY MOTION PICTURE HOUSE,
THEATER, CONCERT HALL, SPORTS ARENA, STADIUM OR OTHER PLACE OF
EXHIBITION OR ENTERTAINMENT" WHICH "CUSTOMARILY PRESENTS FILMS,
PERFORMANCES, ATHLETIC TEAMS, EXHIBITIONS, OR OTHER SOURCES OF
ENTERTAINMENT WHICH MOVE IN COMMERCE."  UNDER ANY ACCEPTED DEFINITION
OF "ENTERTAINMENT," THE LAKE NIXON CLUB WOULD SURELY QUALIFY AS A
"PLACE OF ENTERTAINMENT."  /7/  AND INDEED IT ADVERTISES ITSELF AS
SUCH.  /8/  RESPONDENT ARGUES, HOWEVER, THAT IN THE CONTEXT OF SEC.
201(B)(3) "PLACE OF ENTERTAINMENT" REFERS ONLY TO ESTABLISHMENTS WHERE
PATRONS ARE ENTERTAINED AS SPECTATORS OR LISTENERS RATHER THAN THOSE
WHERE ENTERTAINMENT TAKES THE FORM OF DIRECT PARTICIPATION IN SOME
SPORT OR ACTIVITY.  WE FIND NO SUPPORT IN THE LEGISLATIVE HISTORY FOR
RESPONDENT'S READING OF THE STATUTE.  THE FEW INDICATION OF LEGISLATIVE
INTENT ARE TO THE CONTRARY. 

PRESIDENT KENNEDY, IN SUBMITTING TO CONGRESS THE PUBLIC
ACCOMMODATIONS PROVISIONS OF THE PROPOSED CIVIL RIGHTS ACT, EMPHASIZED
THAT "NO ACTION IS MORE CONTRARY TO THE SPIRIT OF OUR DEMOCRACY AND
CONSTITUTION-- OR MORE RIGHTFULLY RESENTED BY A NEGRO CITIZEN WHO SEEKS
ONLY EQUAL TREATMENT-- THAN THE BARRING OF THAT CITIZEN FROM
RESTAURANTS, HOTELS, THEATRES, RECREATIONAL AREAS, AND OTHER PUBLIC
ACCOMMODATIONS AND FACILITIES."  /9/  WHILE TITLE II WAS BEING
CONSIDERED BY THE SENATE, A CIVIL RIGHTS DEMONSTRATION OCCURRED AT A
MARYLAND AMUSEMENT PARK.  THE THEN ASSISTANT MAJORITY LEADER OF THE
SENATE, HUBERT HUMPHREY, TOOK NOTE OF THE DEMONSTRATION AND OPINED THAT
SUCH AN AMUSEMENT PARK WOULD BE COVERED BY THE PROVISIONS WHICH WERE
EVENTUALLY ENACTED AS TITLE II: 

     "IN THIS PARTICULAR INSTANCE, I AM CONFIDENT THAT MERCHANDISE

  AND FACILITIES USED IN THE PARK ERE TRANSPORTED ACROSS STATE

  LINES. 

        .          .          .          . 

     "THE SPECTACLE OF NATIONAL CHURCH LEADERS BEING HAULED OFF TO

JAIL IN A PADDY WAGON DEMONSTRATES THE ABSURDITY OF THE PRESENT

  SITUATION REGARDING EQUAL ACCESS TO PUBLIC FACILITIES IN MARYLAND

  AND THE ABSURDITY OF THE ARGUMENTS OF THOSE WHO OPPOSE TITLE II

  OF THE PRESIDENT'S OMNIBUS CIVIL RIGHTS BILL."  109

  CONG.REC.  12276 (1963). 

SENATOR MAGNUSON, FLOOR MANAGER OF TITLE II, SPOKE IN A SIMILAR VEIN. 
/10/ 

ADMITTEDLY, MOST OF THE DISCUSSION IN CONGRESS REGARDING THE
COVERAGE OF TITLE II FOCUSED ON PLACES OF SPECTATOR ENTERTAINMENT
RATHER THAN RECREATIONAL AREAS.  BUT IT DOES NOT FOLLOW THAT THE SCOPE
OF SEC. 201(B)(3) SHOULD BE RESTRICTED TO THE PRIMARY OBJECTS OF
CONGRESS' CONCERN WHEN A NATURAL READING OF ITS LANGUAGE WOULD CALL FOR
BROADER COVERAGE.  IN LIGHT OF THE OVERRIDING PURPOSE OF TITLE II "TO
REMOVE THE DAILY AFFRONT AND HUMILIATION INVOLVED IN DISCRIMINATORY
DENIALS OF ACCESS TO FACILITIES OSTENSIBLY OPEN TO THE GENERAL PUBLIC,"
H.R. REP. NO. 914, 88TH CONG., 1ST SESS., 18, WE AGREE WITH THE EN
BANC DECISION OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN MILLER
V. AMUSEMENT ENTERPRISES, INC., 394 F.2D 342 (1968), THAT THE STATUTORY
LANGUAGE "PLACE OF ENTERTAINMENT" SHOULD BE GIVEN FULL EFFECT ACCORDING
TO ITS GENERALLY ACCEPTED MEANING AND APPLIED TO RECREATIONAL AREAS. 

THE REMAINING QUESTION IS WHETHER THE OPERATIONS OF THE LAKE NIXON
CLUB "AFFECT COMMERCE" WITHIN THE MEAING OF SEC. 201(C)(3).  WE
CONDLUDE THAT THEY DO.  LAKE NIXON'S CUSTOMARY "SOURCES OF
ENTERTAINMENT . . . MOVE IN COMMERCE."  THE CLUB LEASES 15 PADDLE BOATS
ON A ROYALTY BASIS FROM AN OKLAHOMA COMPANY.  ANOTHER BOAT WAS
PURCHASED FROM THE SAME COMPANY.  THE CLUB'S JUKE BOX WAS MANUFACTURED
OUTSIDE ARKANSAS AND PLAYS RECORDS MANUFACTURED OUTSIDE THE STATE.  THE
LEGISLATIVE HISTORY INDICATES THAT MECHANICAL SOURCES OF ENTERTAINMENT
SUCH AS THESE WERE CONSIDERED BY CONGRESS TO BE "SOURCES OF
ENTERTAINMENT" WITHIN THE MEANING OF SEC. 201(C)(3).  /11/ 

/1/  PETITIONERS ALLEGED THAT THE DENIAL OF ADMISSION ALSO
CONSTITUTES A VIOLATION OF THE CIVIL RIGHTS ACT OF 1866, AS AMENDED, 14
STAT. 27, NOW 42 U.S.C. 1981.  NEITHER THE DISTRICT COURT NOR THE COURT
OF APPEALS PASSED ON THIS CONTENTION.  OUR CONCLUSION MAKES IT
UNNECESSARY TO CONSIDER THE QUESTION. 

/2/  RESPONDENT AT TRIAL ANSWERED AFFIRMATIVELY A QUESTION OF THE
TRIAL JUDGE WHETHER NEGROES WERE DENIED ADMISSION "SIMPLY . . . BECAUSE
THEY WERE NEGROES."  RESPONDENT'S ANSWER TO AN INTERROGATORY WHY
NEGROES WERE REFUSED ADMISSION WAS:  "(WE REFUSED ADMISSION TO THEM
BECAUSE WHITE PEOPLE IN OUR COMMUNITY WOULD NOT PATRONIZE US IF WE
ADMITTED NEGROES TO THE SWIMMING POOL.  OUR BUSINESS WOULD BE RUINED
AND WE HAVE OUR ENTIRE LIFE SAVINGS IN IT."    /3/  SECTION 201(A) OF
THE ACT PROVIDES: 

"ALL PERSONS SHALL BE ENTITLED TO THE FULL AND EQUAL ENJOYMENT OF
THE GOODS, SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES, AND
ACCOMMODATIONS OF ANY PLACE OF PUBLIC ACCOMMODATION, AS DEFINED IN THIS
COLOR, RELIGION, OR NATIONAL ORIGIN."     /4/  SECTION 201(E) OF THE
ACT PROVIDES: 

"THE PROVISIONS OF THIS TITLE SHALL NOT APPLY TO A PRIVATE CLUB OR
OTHER ESTABLISHMENT NOT IN FACT OPEN TO THE PUBLIC, EXCEPT TO THE
EXTENT THAT THE FACILITIES OF SUCH ESTABLISHMENT ARE MADE AVAILABLE TO
THE CUSTOMERS OR PATRONS OF AN ESTABLISHMENT WITHIN THE SCOPE OF
SUBSECTION (B)." 

/5/  THE DISTRICT COURT, WHICH DID NOT FIND IT NECESSARY TO DECIDE
WHETHER THE SNACK BAR SERVED OR OFFERED TO SERVE INTERSTATE TRAVELERS,
CONCEDED THAT:  "IT IS PROBABLY TRUE THAT SOME OUT-OF-STATE PEOPLE
SPENDING TIME IN OR AROUND LITTLE ROCK HAVE UTILIZED (LAKE NIXON'S)
FACILITIES."  263 F.SUPP.,AT 418. 

/6/  ACCORD:  EVANS V. LAUREL LINKS, INC., 261 F.SUPP.  474
(D.C.E.D.VA. 1966); UNITED STATES V. FRALEY, 282 F.SUPP.  948
(D.C.M.D.N.C. 1968); UNITED STATES V. ALL STAR TRIANGLE BOWL, INC., 283
F.SUPP.  300 (D.C.S.C. 1968). 

/7/  WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, AT 757, DEFINES
"ENTERTAINMENT" AS "THE ACT OF DIVERTING, AMUSING, OR CAUSING SOMEONE'S
TIME TO PASS AGREEABLY:  (SYNONYMOUS WITH) AMUSEMENT." 

/8/  RESPONDENT ADVERTISED OVER A LOCAL RADIO STATION THAT "LAKE
NIXON CONTINUES THEIR POLICY OF OFFERING YOU YEAR-ROUND ENTERTAINMENT. 

/9/  SPECIAL MESSAGE TO THE CONGRESS ON CIVIL RIGHTS AND JOB
OPPORTUNITIES, JUNE 19, 1963, IN PUBLIC PAPERS OF THE PRESIDENTS, JOHN
F. KENNEDY, 1963, AT 485.  THIS STATEMENT WAS ORIGINALLY MADE IN A
SPECIAL MESSAGE TO THE CONGRESS ON CIVIL RIGHTS, FEB. 28, 1963, IN
PUBLIC PAPERS, SUPRA, AT 228. 

/10/  "MOTION PICTURE THEATERS WHICH REFUSE TO ADMIT NEGROES WILL
OBVIOUSLY DRAW PATRONS FROM A NARROWER SEGMENT OF THE MARKET THAN IF
THEY WERE OPEN TO PATRONS OF ALL RACES.  . . . THUS, THE DEMAND FOR
FILMS FROM OUT OF STATE, AND THE ROYALTIES FROM SUCH FILMS, WILL BE
LESS. 

        .          .          .          . 

"THESE PRINCIPLES ARE APPLICABLE NOT MERELY TO MOTION PICTURE
THEATERS BUT TO OTHER ESTABLISHMENTS WHICH RECEIVE SUPPLIES, EQUIPMENT,
OR GOODS THROUGH THE CHANNELS OF INTERSTATE COMMERCE.  IF THESE
ESTABLISHMENTS NARROW THEIR POTENTIAL MARKETS BY ARTIFICIALLY
RESTRICTING THEIR PATRONS TO NON-NEGROES, THE VOLUME OF SALES AND,
THEREFORE, THE VOLUME OF INTERSTATE PURCHASES WILL BE LESS."  110
CONG.REC.  7402 (1964). 

/11/  THE SENATE REJECTED AN AMENDMENT WHICH WOULD HAVE RULED OUT
MOST MECHANICAL SOURCES BY REQUIRING THAT THE SOURCE OF ENTERTAINMENT
BE ONE WHICH HAS "NOT COME TO REST WITHIN A STATE."  110 CONG.REC. 
13915-13921 (1964).  SEE ALSO THE REMARKS OF SENATOR MAGNUSON, SUPRA,
N. 10. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I ALSO REST ON THE FOURTEENTH
AMENDMENT.  MY VIEWS WERE SET FORTH IN BELL V. MARYLAND, 378 U.S. 226,
WHERE I SAID: 

     "SEGREGATION OF NEGROES IN RESTAURANTS AND LUNCH COUNTERS OF

  PARTS OF AMERICA IS A RELIC OF SLAVERY.  IT IS A BADGE OF

  SECOND-CLASS CITIZENSHIP.  IT IS A DENIAL OF A PRIVILEGE AND

  IMMUNITY OF NATIONAL CITIZENSHIP AND OF THE EQUAL PROTECTION

  GUARANTEED BY THE FOURTEENTH AMENDMENT AGAINST ABRIDGMENT BY THE

  STATES."  ID., 260. 

AND SEE MY CONCURRING OPINION IN ATLANTA MOTEL V. UNITED STATES, 379
U.S. 241, 279 ET SEQ. 

MR. JUSTICE BLACK, DISSENTING. 

I COULD AND WOULD AGREE WITH THE COURT'S HOLDING IN THIS CASE HAD
CONGRESS IN THE 1964 CIVIL RIGHTS ACT BASED ITS POWER TO BAR RACIAL
DISCRIMINATION AT PLACES OF PUBLIC ACCOMMODATIONS UPON SEC. 5 OF THE
FOURTEENTH AMENDMENT.  /1/  BUT CONGRESS IN ENACTING THIS LEGISLATION
DID NOT CHOOSE TO INVOKE THIS BROAD FOURTEENTH AMENDMENT POWER TO
PROTECT AGAINST RACIAL DISCRIMINATION; INSTEAD IT TIED THE ACT AND
LIMITED ITS PROTECTION TO CONGRESSIONAL POWER TO REGULATE COMMERCE
AMONG THE STATES.  BOTH COURTS BELOW FOUND THAT RESPONDENT'S SWIMMING
AND RECREATION PLACE IS COVERED BY THE ACT IF ITS OPERATIONS "AFFECT
COMMERCE" WITHIN THE MEANING OF SEC. 201(C) OF THE ACT.  THE ACT
ITSELF, IN SEC. 201(C), PROVIDES THE TEST FOR DETERMINING WHETHER THIS
RESPONDENT'S RECREATIONAL OPERATIONS ADVERSELY AFFECT INTERSTATE
COMMERCE.  THAT TEST IS TO DETERMINE FROM EVIDENCE WHETHER THE
OPERATION OF AN ESTABLISHMENT LIKE RESPONDENT'S (A) "SERVES OR OFFERS
TO SERVE INTERSTATE TRAVELERS" OR (B) "A SUBSTANTIAL PORTION OF THE
FOOD WHICH IT SERVES, OR GASOLINE OR OTHER PRODUCTS WHICH IT SELLS, HAS
MOVED IN COMMERCE.  . . . "  IN ORDER, THEREFORE, FOR THE ACT TO BE
HELD TO APPLY THE TEST MUST BE SHOWN TO BE MET BY EVIDENCE AND JUDICIAL
FINDINGS, NOT BY GUESSWORK, OR ASSUMPTIONS, OR "JUDICIAL KNOWLEDGE" OF
CRUCIALLY RELEVANT FACTS, OR BY UNPROVED PROBABILITIES OR
POSSIBILITIES.  MY TROUBLE WITH THE COURT'S HOLDING IS THAT IT RUNS
ROUGHSHOD OVER DISTRICT COURT FINDINGS SUPPORTED BY THE RECORD AND
EMPHATICALLY AFFIRMED BY THE COURT OF APPEALS.  LET US BRIEFLY REVIEW
THE FACTS AND FINDINGS ON THE FOREGOING TWO SEPARATE CONDITIONS OF THE
ACT'S APPLICABILITY. 

(A) DID LAKE NIXON SERVE OR OFFER TO SERVE INTERSTATE TRAVELERS? 
THERE IS NOT A WORD OF EVIDENCE SHOWING THAT SUCH AN INTERSTATE
TRAVELER WAS EVER THERE OR EVER INVITED THERE OR EVER DREAMED OF GOING
THERE.  NIXON LAKE CAN BE REACHED ONLY BY COUNTRY ROADS.  THE RECORD
FAILS TO SHOW WHETHER THESE COUNTRY ROADS ARE PASSABLE IN ALL KINDS OF
WEATHER.  THEY SEEM TO BE AT LEAST SIX TO EIGHT MILES OFF THE STATE OR
INTERSTATE ROADS OVER WHICH INTERSTATE TRAVELERS ARE ACCUSTOMED TO
TRAVEL.  PETITIONERS DID NOT OFFER EVIDENCE TO SHOW WHETHER LAKE NIXON
IS A NATURAL LAKE, OR WHETHER IT IS SIMPLY A SMALL BODY OF WATER
OBTAINED BY BUILDING A DAM ACROSS A LITTLE CREEK IN A NARROW HOLLOW
BETWEEN THE HILLS.  THE DISTRICT COURT MADE FINDINGS ABOUT LAKE NIXON
AND SPRING LAKE /2/  AS FOLLOWS: 

"BOTH ARE ACCESSIBLE BY COUNTRY ROADS; NEITHER IS LOCATED ON OR NEAR
A STATE OR FEDERAL HIGHWAY.  THERE IS NO EVIDENCE THAT EITHER FACILITY
HAS EVER TRIED TO ATTRACT INTERSTATE TRAVELERS AS SUCH, AND THE
LOCATION OF THE FACILITIES IS SUCH THAT IT WOULD BE IN THE HIGHEST
DEGREE UNLIKELY THAT AN INTERSTATE TRAVELER WOULD BREAK HIS TRIP FOR
THE PURPOSE OF UTILIZING EITHER ESTABLISHMENT."  263 F.SUPP.  412,
418.  THE FOREGOING FINDING IS NOT IMPAIRED BY THIS ADDITIONAL
STATEMENT OF THE DISTRICT JUDGE: 

"OF COURSE, IT IS PROBABLY TRUE THAT SOME OUT-OF-STATE PEOPLE
SPENDING TIME IN OR AROUND LITTLE ROCK HAVE UTILIZED ONE OR BOTH
FACILITIES."  IBID. IN THE FIRST PLACE THE COURT'S STATEMENT THAT "IT
IS PROBABLY TRUE"  TAKES THIS OUT OF THE CATEGORY OF A FINDING OF FACT;
AND SECONDLY, "OUT-OF-STATE PEOPLE SPENDING TIME IN OR AROUND LITTLE
ROCK" WHO HAPPENED TO VISIT LAKE NIXON WOULD CERTAINLY NOT BE THE KIND
OF "INTERSTATE TRAVELERS" DOING THE KIND OF INTERSTATE TRAVELING THAT
WOULD "AFFECT" INTERSTATE COMMERCE. 

THE COURT OF APPEALS, AFFIRMING THE FINDINGS OF THE DISTRICT COURT,
SAID: 

"THERE IS NO EVIDENCE THAT ANY INTERSTATE TRAVELER EVER PATRONIZED
THIS FACILITY, OR THAT IT OFFERED TO SERVE INTERSTATE TRAVELERS.  . . .
"  395 F.2D 118, 127.  THIS COURT REJECTS THESE JOINT FINDINGS OF THE
TWO COURTS BELOW IN THIS WAY.  REFERRING TO ADVERTISEMENTS OF LAKE
NIXON IN A MONTHLY MAGAZINE DISTRIBUTED AT LITTLE ROCK HOTELS, MOTELS,
AND RESTAURANTS, TO RADIO ANNOUNCEMENTS, AND TO ADVERTISEMENTS IN THE
"LITTLE ROCK AIR FOCE BASE," THIS COURTS SAYS: 

"THUS, THE LAKE NIXON CLUB UNQUESTIONALBY OFFERED TO SERVE OUT-OF
STATE VISITORS TO THE LITTLE ROCK AREA.  AND IT WOULD BE UNREALISTIC TO
ASSUME THAT NONE OF THE 100,000 PATRONS ACTUALLY SERVED BY THE CLUB
EACH SEASON WAS AN INTERSTATE TRAVELER."  IN THE ABOVE STATEMENT THIS
COURT JUMPS FROM THE FACT THAT THERE WERE AN ESTIMATED NUMBER OF
ADMISSIONS ONTO THE CLUB PREMISES DURING A SEASON TO THE CONCLUSION
THAT SOME ONE OR MORE OF THESE WAS AN "INTERSTATE TRAVELER" AND THAT
THE OWNERS OF THE PREMISES, MR. AND MRS. PAUL, WERE BOUND TO KNOW THAT
THERE WERE INTERSTATE TRAVELERS PRESENT.  /3/  THAT CONCLUSION IS FAR
TOO SPECULATIVE TO BE USED AS A MEANS OF REJECTING THE SOLEMN FINDINGS
OF THE TWO COURTS BELOW.  IF THE FACTS HERE ARE TO BE LEFT TO SUCH
"IFFY" CONJECTURES, ONE FAMILIAR WITH COUNTRY LIFE AND TRAVELING WOULD,
IT SEEMS TO ME, FAR MORE LIKELY CONCLUDE THAT TRAVELERS ON INTERSTATE
JOURNEYS WOULD STICK TO THEIR INTERSTATE HIGHWAYS, AND NOT GO MILES OFF
THEM BY WAY OF WHAT, FOR ALL THIS RECORD SHOWS, MAY WELL BY DUSTY,
UNPAVED, "COUNTRY" ROADS TO GO TO A PURELY LOCAL SWIMMING HOLE WHERE
THE ONLY FOOD THEY COULD BUY WAS HAMBURGERS, HOT DOGS, MILK, AND SOFT
DRINKS (BUT NOT BEER).  THIS IS CERTAINLY NOT THE PATTERN OF INTERSTATE
MOVEMENTS I WOULD EXPECT INTERSTATE TRAVELERS IN SEARCH OF TOURIST
ATTRACTIONS TO FOLLOW. 

(B) THE SECOND PRONG OF THE TEST TO DETERMINE APPLICABILITY OF THE
ACT TO LAKE NIXON IS WHETHER A "SUBSTANTIAL PORTION" OF THE HAMBURGERS,
MILK, AND SODA POP SOLD THERE HAD PREVIOUSLY MOVED IN INTERSTATE
COMMERCE.  THE COURT'S OPINION GENEROUSLY CONCEDS THAT THE RECORD IS
"NOT AS COMPLETE ON THIS POINT AS MIGHT BE DESIRED.  . . . "  THIS IS
CERTAINLY NO EXAGGERATION.  IN FACT, I WOULD GO FURTHER AND AGREE WITH
THE TWO COURTS BELOW THAT THE RECORD IS TOTALLY DEVOID OF EVIDENCE TO
SHOW THAT A "SUBSTANTIAL PORTION" OF THE SMALL AMOUNT OF FOOD SOLD HAD
PREVIOUSLY MOVED IN INTERSTATE COMMERCE.  THE DISTRICT COURT FOUND AS
FOLLOWS ON THIS POINT: 

 "FOOD AND SOFT DRINKS ARE PURCHASED LOCALLY BY BOTH

ESTABLISHMENTS.  THE RECORD BEFORE THE COURT DOES NOT DISCLOSE

  WHERE OR HOW THE LOCAL SUPPLIERS OBTAINED THE PRODUCTS WHICH THEY

  SOLD TO THE ESTABLISHMENTS.  THE MEAT PRODUCTS SOLD BY DEFENDANTS

  MAY OR MAY NOT HAVE COME FROM ANIMALS RAISED, SLAUGHTERED, AND

  PROCESSED IN ARKANSAS.  THE BREAD USED BY DEFENDANTS WAS BAKED

  AND PACKAGED LOCALLY, BUT JUDICIAL NOTICE MAY BE TAKEN OF THE

  FACT THAT THE PRINCIPAL INGREDIENTS GOING INTO THE BREAD WERE

  PRODUCED AND PROCESSED IN OTHER STATES.  THE SOFT DRINKS WERE

  BOTTLED LOCALLY, BUT CERTAIN INGREDIENTS WERE PROBABLY OBTAINED

 BY THE BOTTLERS FROM OUT-OF-STATE SOURCES."  263 F.SUPP.,AT 418. 

FACT-FINDINGS ON SERIOUS PROBLEMS LIKE THIS ONE, WHICH INVOLVES MARKING
THE JURISDICTIONAL AUTHORITY OF STATE AND NATION, SHOULD NOT BE MADE ON
THE BASIS OF "JUDICIAL NOTICE" AND ON PROBABILITIES NOT BASED ON
EVIDENCE.  THE COURT APPEALS APPROVED THIS FINDING OF THE DISTRICT
COURT THAT A SUBSTANTIAL OF APPEALS APPROVED THIS FINDING OF THE
DISTRICT COURT THAT A SUBSTANTIAL PART OF THE FOOD SERVED AT LAKE NIXON
HAD NOT PREVIOUSLY MOVED IN INTERSTATE COMMERCE.  THE COURT OF APPEALS
SAID: 

  "WITH REGARD TO WHETHER A SUBSTANTIAL PORTION OF THE FOOD WHICH

  LAKE NIXON SERVES HAS MOVED IN COMMERCE, THE TRIAL COURT FOUND

  THAT FOOD AND SOFT DRINKS WERE PURCHASED LOCALLY BY THE CLUB BUT

  NOTED THAT THE RECORD BEFORE THE COURT DID NOT DISCLOSE WHERE OR

  HOW THE LOCAL SUPPLIERS OBTAINED THE PRODUCTS.  THE COURT FURTHER

  OBSERVED THAT THE MEAT PRODUCTS SOLD BY THE DEFENDANTS MAY OR MAY

  NOT HAVE COME FROM ANIMALS RAISED, SLAUGHTERED, AND PROCESSED IN

 ARKANSAS.  IT ALSO MADE AN OBSERVATION THAT THE BREAD USED IN THE

  SANDWICHES WAS BAKED AND PACKAGED LOCALLY BUT TOOK JUDICIAL

  NOTICE THAT THE PRINCIPAL INGREDIENTS GOING INTO THE BREAD WERE

  PRODUCED AND PROCESSED IN OTHER STATES.  THIS OBSERVATION ON THE

  PART OF THE COURT, HOWEVER, WAS ENTIRELY VOLUNTARY, AND THE

  INGREDIENTS IN THE BREAD WOULD NOT CONSTITUTE A SUBSTANTIAL PART

  OF THE FOOD SERVED.  WE MIGHT ADD THAT IT IS A MATTER OF COMMON

  KNOWLEDGE THAT BORDEN'S OF ARKANSAS, WHICH THE RECORD SHOWED

  SUPPLIED THE MILK, OBTAINS THE UNPROCESSED MILK FOR ITS LOCAL

 PLANT FROM ARKANSAS DAIRY FARMERS."  395 F.2D,AT 124. 

FINALLY THE COURT MENTIONS, ALMOST AS AN AFTERTHOUGHT, LAKE NIXON'S 15
PADDLE BOATS LEASED FROM AN OKLAHOMA COMPANY ON A ROYALTY BASIS.  AS TO
THESE PADDLE BOATS THE COURT OF APPEALS SAID:  "IT IS COMMON KNOWLEDGE
THAT ANNUALLY THOUSANDS OF THIS TYPE BOAT ARE MANUFACTURED LOCALLY IN
ARKANSAS, AND THERE IS NO EVIDENCE WHATSOEVER THAT ANY OF THE EQUIPMENT
MOVED IN INTERSTATE COMMERCE."  395 F.2D,AT 125. 

THE COURT'S OPINION ALSO MENTIONS A JUKE BOX LEASED BY LAKE NIXON
FROM THE JUKE BOX'S LOCAL OWNER.  THE COURT APPARENTLY REFERS TO THIS
JUKE BOX ON THE PREMISE THAT PLAYING MUSIC AND DANCING MAKES AN
ESTABLISHMENT THE KIND OF PLACE OF "ENTERTAINMENT" THAT IS COVERED BY
SEC. 201(B)(3) OF THE ACT.  /4/  THE COURT OF APPEALS POINTED OUT THAT
SENATOR MAGNUSON, FLOOR MANAGER OF THIS PART OF THE ACT, SAID THAT
DANCE STUDIOS WOULD BE EXEMPT UNDER THE ACT.  110 CONG.REC.  7406. 
ALSO, SENATOR HUMPHREY, A LEADING PROPONENT OF THE MEASURE, SAID: 

"THE DELETION OF THE COVERAGE OF RETAIL ESTABLISHMENTS GENERALLY IS
ILLUSTRATIVE OF THE MODERATE NATURE OF THIS BILL AND OF ITS INTENT TO
DEAL ONLY WITH THE PROBLEMS WHICH URGENTLY REQUIRE SOLUTION."  110
CONG.REC.  6533.  SEE ALSO MILLER V. AMUSEMENT ENTERPRISES, INC., 394
F.2D 342. 

IT SEEMS CLEAR TO ME THAT NEITHER THE PADDLE BOATS NOR THE LOCALLY
LEASED JUKE BOX IS SUFFICIENT TO JUSTIFY A HOLDING THAT THE OPERATION
OF LAKE NIXON AFFECTS INTERSTATE COMMERCE WITHIN THE MEANING OF THE
ACT.  WHILE IT IS THE DUTY OF COURTS TO ENFORCE THIS IMPORTANT ACT, WE
ARE NOT CALLED ON TO HOLD NOR SHOULD WE HOLD SUBJECT TO THAT ACT THIS
COUNTRY PEOPLE'S RECREATION CENTER, LYING IN WHAT MAY BE, SO FAR AS WE
KNOW, A LITTLE "SLEEPY HOLLOW" BETWEEN ARKANSAS HILLS MILES AWAY FROM
ANY INTERSTATE HIGHWAY.  THIS WOULD BE STRETCHING THE COMMERCE CLAUSE
SO AS TO GIVE THE FEDERAL GOVERNMENT COMPLETE CONTROL OVER EVERY LITTLE
REMOTE COUNTRY PLACE OF RECREATION IN EVERY NOOK AND CRANNY OF EVERY
PRECINCT AND COUNTY IN EVERY ONE OF THE 50 STATES.  THIS GOES TOO FAR
FOR ME.  /5/  I WOULD AFFIRM THE JUDGMENTS OF THE TWO COURTS BELOW. 
/1/  "THE CONGRESS SHALL HAVE POWER TO ENFORCE BY APPROPRIATE
LEGISLATION, THE PROVISIONS OF THIS ARTICLE."  U.S. CONST., AMDT. XIV,
SEC. 5.  SEE CONCURRING OPINION OF MR. JUSTICE CLARK, WHICH I JOINED,
IN UNITED STATES V. GUEST, 383 U.S. 745, 761.     /2/  THE DISTRICT
COURT HELD HEARINGS AND MADE FINDINGS CONCERNING LAKE NIXON AND ANOTHER
ESTABLISHMENT, SPRING LAKE, IN A SINGLE TRIAL.  NO APPEAL WAS TAKEN
FROM THE DISTRICT COURT'S DECISION HOLDING THAT SPRING LAKE WAS NOT
COVERED BY THE ACT. 

/3/  IN FACT, MR. PAUL TESTIFIED UNDER OATH THAT NO INTERSTATE
TRAVELERS WERE MEMBERS OF THE "CLUB," THAT THEY HAD NOT INVITED ANY TO
JOIN, AND THAT AS FAR AS HE KNEW, NONE HAD EVER USED THE PREMISES. 

/4/  "(B) EACH OF THE FOLLOWING ESTABLISHMENTS WHICH SERVES THE
PUBLIC AS A PLACE OF PUBLIC ACCOMMODATION WITHIN THE MEANING OF THIS
TITLE IF ITS OPERATIONS AFFECT COMMERCE, OR IF DISCRIMINATION OR
SEGREGATION BY IT IS SUPPORTED BY STATE ACTION:

        .          .          .          . 

"(3) ANY MOTION PICTURE HOUSE, THEATER, CONCERT HALL, SPORTS ARENA,
STADIUM OR OTHER PLACE OF EXHIBITION OR ENTERTAINMENT;" AN
ESTABLISHMENT AFFECTS COMMERCE WITHIN THE MEANING OF THIS SUBSECTION
IF, ACCORDING TO SEC. 201(C) THE ACT, "IT CUSTOMARILY PRESENTS FILMS,
PERFORMANCES, ATHLETIC TEAMS, EXHIBITIONS, OR OTHER SOURCES OF
ENTERTAINMENT WHICH MOVE IN COMMERCE.  . . . " 

/5/  IN MY OPINION IN ATLANTA MOTEL V. UNITED STATES, 379 U.S. 241,
268, WHICH ALSO APPLIES TO KATZENBACH V. MCCLUNG, 379 U.S. 294,
CONCURRING IN THE COURT'S DECISION UPHOLDING THE APPLICATION OF THIS
ACT TO AN ATLANTA, GEORGIA, MOTEL AND A BIRMINGHAM, ALABAMA,
RESTAURANT, I SAID: "I RECOGNIZE THAT EVERY REMOTE, POSSIBLE,
SPECULATIVE EFFECT ON COMMERCE SHOULD NOT BE ACCEPTED AS AN ADEQUATE
CONSTITUTIONAL GROUND TO UPROOT AND THROW INTO THE DISCARD ALL OUR
TRADITIONAL DISTINCTIONS BETWEEN WHAT IS PURELY LOCAL, AND THEREFORE
CONTROLLED BY STATE LAWS, AND WHAT AFFECTS THE NATIONAL INTEREST AND IS
THEREFORE SUBJECT TO CONTROL BY FEDERAL LAWS.  I RECOGNIZE TOO THAT
SOME ISOLATED AND REMOTE LUNCHROOM WHICH SELLS ONLY TO LOCAL PEOPLE AND
BUYS ALMOST ALL ITS SUPPLIES IN THE LOCALITY MAY POSSIBLY BE BEYOND THE
REACH OF THE POWER OF CONGRESS TO REGULATE COMMERCE, JUST AS SUCH AN
ESTABLISHMENT IS NOT COVERED BY THE PRESENT ACT."  379 U.S.,AT 275. 

CONRAD K. HARPER ARGUED THE CAUSE FOR PETITIONERS PRO HAC VICE. 
WITH HIM ON THE BRIEF WERE JACK GREENBERG, JAMES M. NABRIT, III, AND
NORMAN C. AMAKER. 

JAMES W. GALLMAN, BY INVITATION OF THE COURT, 393 U.S. 1061, ARGUED
THE CAUSE AND FILED A BRIEF AS AMICUS CURIAE IN SUPPORT OF THE JUDGMENT
BELOW. 

ASSISTANT ATTORNEY GENERAL LEONARD ARGUED THE CAUSE FOR THE UNITED
STATES AS AMICUS CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD AND LOUIS F. CLAIBORNE. 
..END :









UNITED STATES V. ESTATE OF GRACE, 395 U.S. 316 


       UNITED STATES V. ESTATE OF GRACE ET AL.

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

NO. 574.  ARGUED APRIL 22, 1969.-- DECIDED JUNE 2, 1969. 


IN 1931 DECEDENT, JOSEPH GRACE, EXECUTED A TRUST INSTRUMENT PROVIDING
FOR PAYMENT OF INCOME TO HIS WIFE, JANET, FOR HER LIFE, WITH PAYMENT TO
HER OF ANY PART OF THE PRINCIPAL WHICH A MAJORITY OF THE TRUSTEES
THOUGHT ADVISABLE.  MRS. GRACE WAS GIVEN POWER TO DESIGNATE THE MANNER
IN WHICH THE TRUST ESTATE REMAINING AT HER DEATH WAS TO BE DISTRIBUTED
AMONG DECEDENT AND THEIR CHILDREN.  SHORTLY THEREAFTER JANET GRACE, AT
DECEDENT'S REQUEST, EXECUTED A VIRTUALLY IDENTICAL TRUST INSTRUMENT
NAMING DECEDENT AS LIFE BENEFICIARY, WITH THE TRUST CORPUS CONSISTING
OF THE FAMILY ESTATE AND SECURITIES WHICH DECEDENT HAD TRANSFERRED TO
HIS WIFE IN PRECEDING YEARS.  UPON DECEDENT'S DEATH IN 1950 THE
COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THE TRUSTS WERE
"RECIPROCAL" AND INCLUDED THE AMOUNT OF THE JANET GRACE TRUST IN
DECEDENT'S GROSS ESTATE.  A DEFICIENCY WAS ASSESSED AND PAID AND THIS
REFUND SUIT WAS FILED.  THE COURT OF CLAIMS HELD THAT THE VALUE OF THE
TRUST WAS NOT INCLUDIBLE IN DECEDENT'S ESTATE UNDER SEC. 811(C)(1)(B)
OF THE INTERNAL REVENUE CODE OF 1939, WHICH PROVIDED THAT CERTAIN
TRANSFERRED PROPERTY IN WHICH A DECEDENT RETAINED A LIFE INTEREST WAS
TO BE INCLUDED IN HIS GROSS ESTATE.  HELD:  THE DOCTRINE OF RECIPROCAL
TRUSTS, WHICH WAS FORMULATED IN RESPONSE TO ATTEMPTS TO DRAFT
INSTRUMENTS WHICH SEEMINGLY AVOID THE LITERAL TERMS OF SEC.
811(C)(1)(B) WHILE STILL LEAVING THE DECEDENT THE LIFETIME ENJOYMENT OF
HIS PROPERTY.  LEHMAN V. COMMISSIONER, 109 F.2D 99, APPLIES HERE AND
THE VALUE OF DECEDENT'S ESTATE MUST INCLUDE THE VALUE OF THE JANET
GRACE TRUST.  PP. 320-325. 

(A) "(THE TAXABILITY OF A TRUST CORPUS . . . DOES NOT HINGE ON A
SETTLOR'S MOTIVES, BUT DEPENDS UPON THE NATURE AND OPERATIVE EFFECT OF
THE TRUST TRANSFER," AND IN THE RECIPROCAL TRUST SITUATION INQUIRIES
INTO SUBJECTIVE INTENT, ESPECIALLY IN INTRAFAMILY TRANSFERS, CREATE
OBSTACLES TO THE PROPER APPLICATION OF THE FEDERAL TAX LAWS.  P. 323. 

(B) THE APPLICATION OF THE RECIPROCAL TRUST DOCTRINE DOES NOT DEPEND
ON A FINDING THAT EACH TRUST WAS CREATED AS CONSIDERATION FOR THE
OTHER, AND DOES NOT REQUIRE A TAX-AVOIDANCE MOTIVE, AS SUCH STANDARDS,
RELYING ON SUBJECTIVE FACTORS, ARE RARELY WORKABLE UNDER FEDERAL ESTATE
TAX LAWS.  PP. 323-324. 

(C) THE APPLICATION OF THE DOCTRINE REQUIRES THAT THE TRUSTS BE
INTERRELATED, AND THAT THE ARRANGEMENT, TO THE EXTENT OF MUTUAL VALUE,
LEAVES THE SETTLO-S IN APPROXIMATELY THE SAME ECONOMIC POSITION AS IF
THEY HAD CREATED TRUSTS NAMING THEMSELVES AS LIFE BENEFICIARIES.  P.
324. 

(D) HERE THE TRUSTS ARE INTERRELATED, AS THEY ARE SUBSTANTIALLY
IDENTICAL AND WERE PART OF A SINGLE TRANSACTION DESIGNED AND CARRIED
OUT BY THE DECEDENT, AND THE TRANSFERS IN TRUST, EVEN THOUGH OF
PROPERTIES OF DIFFERENT CHARACTER, LEFT EACH PARTY, TO THE EXTENT OF
MUTUAL VALUE, IN THE SAME OBJECTIVE ECONOMIC POSITION AS BEFORE.  P.
325. 

183 CT.CL. 745, 393 F.2D 939, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE APPLICATION OF SEC. 811(C)(1)(B) OF THE
INTERNAL REVENUE CODE OF 1939 TO A SO-CALLED "RECIPROCAL TRUST"
SITUATION.  /1/  AFTER JOSEPH P. GRACE'S DEATH IN 1950, THE
COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THE VALUE OF A TRUST
CREATED BY HIS WIFE WAS INCLUDIBLE IN HIS GROSS ESTATE.  A DEFICIENCY
WAS ASSESSED AND PAID, AND, AFTER DENIAL OF A CLAIM FOR A REFUND, THIS
REFUND SUIT WAS BROUGHT.  THE COURT OF CLAIMS, WITH TWO JUDGES
DISSENTING, RULED THAT THE VALUE OF THE TRUST WAS NOT INCLUDIBLE IN
DECEDENT'S ESTATE UNDER SEC. 811(C)(1)(B) AND ENTERED JUDGMENT FOR
RESPONDENT.  ESTATE OF GRACE V. UNITED STATES, 183 CT.CL. 745, 393 F.2D
939 (1968).  WE GRANTED CERTIORARI BECAUSE OF AN ALLEGED CONFLICT
BETWEEN THE DECISION BELOW AND CERTAIN DECISIONS IN THE COURTS OF
APPEALS AND BECAUSE OF THE IMPORTANCE OF THE ISSUE PRESENTED TO THE
ADMINISTRATION OF THE FEDERAL ESTATE TAX LAWS.  393 U.S. 975 (1968). 
WE REVERSE. 

        I. 

DECEDENT WAS A VERY WEALTHY MAN AT THE TIME OF HIS MARRIAGE TO THE
LATE JANET GRACE IN 1908.  JANET GRACE HAD NO WEALTH OR PROPERTY OF HER
OWN, BUT, BETWEEN 1908 AND 1931, DECEDENT TRANSFERRED TO HER A LARGE
AMOUNT OF PERSONAL AND REAL PROPERTY, INCLUDING THE FAMILY'S LONG
ISLAND ESTATE.  DECEDENT RETAINED EFFECTIVE CONTROL OVER THE FAMILY'S
BUSINESS AFFAIRS, INCLUDING THE PROPERTY TRANSFERRED TO HIS WIFE.  SHE
TOOK NO INTEREST AND NO PART IN BUSINESS AFFAIRS AND RELIED UPON HER
HUSBAND'S JUDGMENT.  WHENEVER SOME FORMAL ACTION WAS REQUIRED REGARDING
PROPERTY IN HER NAME, DECEDENT WOULD HAVE THE APPROPRIATE INSTRUMENT
PREPARED AND SHE WOULD EXECUTE IT. 

ON DECEMBER 15, 1931, DECEDENT EXECUTED A TRUST INSTRUMENT,
HEREINAFTER CALLED THE JOSEPH GRACE TRUST.  NAMED AS TRUSTEES WERE
DECEDENT, HIS NEPHEW, AND A THIRD PARTY.  THE TRUSTEES WERE DIRECTED TO
PAY THE INCOME OF THE TRUST TO JANET GRACE DURING HER LIFETIME, AND TO
PAY TO HER ANY PART OF THE PRINCIPAL WHICH A MAJORITY OF THE TRUSTEES
MIGHT DEEM ADVISABLE.  JANET WAS GIVEN THE POWER TO DESIGNATE, BY WILL
OR DEED, THE MANNER IN WHICH THE TRUST ESTATE REMAINING AT HER DEATH
WAS TO BE DISTRIBUTED AMONG DECEDENT AND THEIR CHILDREN.  THE TRUST
PROPERTIES INCLUDED SECURITIES AND REAL ESTATE INTERESTS. 

ON DECEMBER 30, 1931, JANET GRACE EXECUTED A TRUST INSTRUMENT,
HEREINAFTER CALLED THE JANET GRACE TRUST, WHICH WAS VIRTUALLY IDENTICAL
TO THE JOSEPH GRACE TRUST.  THE TRUST PROPERTIES INCLUDED THE FAMILY
ESTATE AND CORPORATE SECURITIES, ALL OF WHICH HAD BEEN TRANSFERRED TO
HER BY DECEDENT IN PRECEDING YEARS. 

THE TRUST INSTRUMENTS WERE PREPARED BY ONE OF DECEDENT'S EMPLOYEES
IN ACCORDANCE WITH A PLAN DEVISED BY DECEDENT TO CREATE ADDITIONAL
TRUSTS BEFORE THE ADVENT OF A NEW GIFT TAX EXPECTED TO BE ENACTED THE
NEXT YEAR.  DECEDENT SELECTED THE PROPERTIES TO BE INCLUDED IN EACH
TRUST.  JANET GRACE, ACTING IN ACCORDANCE WITH THIS PLAN, EXECUTED HER
TRUST INSTRUMENT AT DECEDENT'S REQUEST. 

JANET GRACE DIED IN 1937.  THE JOSEPH GRACE TRUST TERMINATED AT HER
DEATH.  HER ESTATE'S FEDERAL ESTATE TAX RETURN DISCLOSED THE JANET
GRACE TRUST AND REPORTED IT AS A NONTAXABLE TRANSFER BY JANET GRACE. 
THE COMMISSIONER ASSERTED THAT THE JANET AND JOSEPH GRACE TRUSTS WERE
"RECIPROCAL" AND ASSERTED A DEFICIENCY TO THE EXTENT OF MUTUAL VALUE. 
COMPROMISES ON UNRELATED ISSUES RESULTED IN 55% OF THE SMALLER OF THE
TWO TRUSTS, THE JANET GRACE TRUST, BEING INCLUDED IN HER GROSS ESTATE. 

JOSEPH GRACE DIED IN 1950.  THE FEDERAL ESTATE TAX RETURN DISCLOSED
BOTH TRUSTS.  THE JOSEPH GRACE TRUST WAS REPORTED AS A NONTAXABLE
TRANSFER AND THE JANET GRACE TRUST WAS REPORTED AS A TRUST UNDER WHICH
DECEDENT HELD A LIMITED POWER OF APPOINTMENT.  NEITHER TRUST WAS
INCLUDED IN DECEDENT'S GROSS ESTATE. 

THE COMMISSIONER DETERMINED THAT THE JOSEPH AND JANET GRACE TRUSTS
WERE "RECIPROCAL" AND INCLUDED THE AMOUNT OF THE JANET GRACE TRUST IN
DECEDENT'S GROSS ESTATE.  A DEFICIENCY IN THE AMOUNT OF $363,500.97,
PLUS INTEREST, WAS ASSESSED AND PAID. 

        II. 

THAT CERTAIN TRANSFERRED PROPERTY IN WHICH A DECEDENT RETAINED A LIFE
INTEREST WAS TO BE INCLUDED IN HIS GROSS ESTATE.  THE GENERAL PURPOSE
OF THE STATUTE WAS TO INCLUDE IN A DECEDENT'S GROSS ESTATE TRANSFERS
THAT ARE ESSENTIALLY TESTAMENTARY-- I.E., TRANSFERS WHICH LEAVE THE
TRANSFEROR A SIGNIFICANT INTEREST IN OR CONTROL OVER THE PROPERTY
TRANSFERRED DURING HIS LIFETIME.  SEE COMMISSIONER V. ESTATE OF CHURCH,
335 U.S. 632, 643-644 (1949). 

THE DOCTRINE OF RECIPROCAL TRUSTS WAS FORMULATED IN RESPONSE TO
ATTEMPTS TO DRAFT INSTRUMENTS WHICH SEEMINGLY AVOID THE LITERAL TERMS
OF SEC. 811(C)(1)(B), WHILE STILL LEAVING THE DECEDENT THE LIFETIME
ENJOYMENT OF HIS PROPERTY.  /2/  THE DOCTRINE DATES FROM LEHMAN V.
COMMISSIONER, 109 F.2D 99 (C.A.2D CIR.), CERT. DENIED, 310 U.S. 637
(1940).  IN LEHMAN, DECEDENT AND HIS BROTHER OWNED EQUAL SHARES IN
CERTAIN STOCKS AND BONDS.  EACH BROTHER PLACED HIS INTEREST IN TRUST
FOR THE OTHER'S BENEFIT FOR LIFE, WITH REMAINDER TO THE LIFE TENANT'S
ISSUE.  EACH BROTHER ALSO GAVE THE OTHER THE RIGHT TO WITHDRAW $150,000
OF THE PRINCIPAL.  IF THE BROTHERS HAD EACH RESERVED THE RIGHT TO
WITHDRAW $150,000 FROM THE TRUST THAT EACH HAD CREATED, THE TRUSTS
WOULD HAVE BEEN INCLUDIBLE IN THEIR GROSS ESTATES AS INTERESTS OF WHICH
EACH HAD MADE A TRANSFER WITH A POWER TO REVOKE.  WHEN ONE OF THE
BROTHERS DIED, HIS ESTATE ARGUED THAT NEITHER TRUST WAS INCLUDIBLE
BECAUSE THE DECEDENT DID NOT HAVE A POWER OVER A TRUST WHICH HE HAD
CREATED. 

THE SECOND CIRCUIT DISAGREED.  THAT COURT RULED THAT THE EFFECT OF
THE TRANSFERS WAS THE SAME AS IF THE DECEDENT HAD TRANSFERRED HIS STOCK
IN TRUST FOR HIMSELF, REMAINDER TO HIS ISSUE, AND HAD RESERVED THE
RIGHT TO WITHDRAW $150,000.  THE COURT REASONED: 

"THE FACT THAT THE TRUSTS WERE RECIPROCATED OR 'CROSSED' IS A
TRIFLE, QUITE LACKING IN PRACTICAL OR LEGAL SIGNIFICANCE.  . . . THE
LAW SEARCHES OUT THE REALITY AND IS NOT CONCERNED WITH THE FORM."  109
F.2D,AT 100.  THE COURT RULED THAT THE DECISIVE POINT WAS THAT EACH
BROTHER CAUSED THE OTHER TO MAKE A TRANSFER BY ESTABLISHING HIS OWN
TRUST. 

THE DOCTRINE OF RECIPROCAL TRUSTS HAS BEEN APPLIED NUMEROUS TIMES
SINCE THE LEHMAN DECISION.  /3/  IT RECEIVED CONGRESSIONAL APPROVAL IN
SEC. 6 OF THE TECHNICAL CHANGES ACT OF 1949, 63 STAT. 893.  /4/  THE
PRESENT CASE IS, HOWEVER, THIS COURT'S FIRST EXAMINATION OF THE
DOCTRINE. 

THE COURT OF CLAIMS WAS DIVIDED OVER THE REQUIREMENTS FOR
APPLICATION OF THE DOCTRINE TO THE SITUATION OF THIS CASE.  RELYING ON
SOME LANGUAGE IN LEHMAN AND CERTAIN OTHER COURTS OF APPEALS' DECISIONS,
/5/ THE MAJORITY HELD THAT THE CRUCIAL FACTOR WAS WHETHER THE DECEDENT
HAD ESTABLISHED HIS TRUST AS CONSIDERATION FOR THE ESTABLISHMENT OF THE
TRUST OF WHICH HE WAS A BENEFICIARY.  THE COURT RULED THAT DECEDENT HAD
NOT ESTABLISHED HIS TRUST AS A QUID PRO QUO FOR THE JANET GRACE TRUST,
AND THAT JANET GRACE HAD NOT ESTABLISHED HER TRUST IN EXCHANGE FOR THE
JOSEPH GRACE TRUST.  RATHER, THE TRUSTS WERE FOUND TO BE PART OF AN
ESTABLISHED PATTERN OF FAMILY GIVING, WITH NEITHER PARTY DESIRING TO
OBTAIN PROPERTY FROM THE OTHER.  INDEED, THE COURT FOUND THAT JANET
GRACE HAD CREATED HER TRUST BECAUSE DECEDENT REQUESTED THAT SHE DO SO.
IN THEREFORE FOUND THE RECIPROCAL TRUST DOCTRINE INAPPLICABLE. 

THE COURT RECOGNIZED THAT CERTAIN CASES HAD ESTABLISHED A SLIGHTLY
DIFFERENT TEST FOR RECIPROCITY.  /6/  THOSE CASES INFERRED
CONSIDERATION FROM THE ESTABLISHMENT OF TWO SIMILAR TRUSTS AT ABOUT THE
SAME TIME.  THE COURT HELD THAT ANY INFERENCE OF CONSIDERATION WAS
REBUTTED BY THE EVIDENCE IN THE CASE, PARTICULARLY LACK OF ANY EVIDENCE
OF AN ESTATE TAX AVOIDANCE MOTIVE ON THE PART OF THE GRACES.  IN
CONTRAST, THE DISSENT FELT THAT THE MAJORITY'S APPROACH PLACED ENTIRELY
TOO MUCH WEIGHT ON SUBJECTIVE INTENT.  ONCE IT WAS ESTABLISHED THAT THE
TRUSTS WERE INTERRELATED, THE DISSENT FELT THAT THE SUBJECTIVE INTENT
OF THE PARTIES IN ESTABLISHING THE TRUSTS SHOULD BECOME IRRELEVANT. 
THE RELEVANT FACTOR WAS WHETHER THE TRUSTS CREATED BY THE SETTLORS
PLACED EACH OTHER IN APPROXIMATELY THE SAME OBJECTIVE ECONOMIC POSITION
AS THEY WOULD HAVE BEEN IN IF EACH HAD CREATED HIS OWN TRUST WITH
HIMSELF, RATHER THAN THE OTHER, AS LIFE BENEFICIARY. 

WE AGREE WITH THE DISSENT THAT THE APPROACH OF THE COURT OF CLAIMS
MAJORITY PLACES TOO MUCH EMPHASIS ON THE SUBJECTIVE INTENT OF THE
PARTIES IN CREATING THE TRUSTS AND FOR THAT REASON HINDERS PROPER
APPLICATION OF THE FEDERAL ESTATE TAX LAWS.  IT IS TRUE THAT THERE IS
LANGUAGE IN LEHMAN AND OTHER CASES THAT WOULD SEEM TO SUPPORT THE
MAJORITY'S APPROACH.  IT IS ALSO TRUE THAT THE RESULTS IN SOME OF THOSE
CASES ARGUABLE SUPPORT THE DECISION BELOW.  /7/  NEVERTHELESS, WE THINK
THAT THESE CASES ARE NOT IN ACCORD WITH THIS COURT'S PRIOR DECISIONS
INTERPRETING RELATED PROVISIONS OF THE FEDERAL ESTATE TAX LAWS. 

EMPHASIS ON THE SUBJECTIVE INTENT OF THE PARTIES IN CREATING THE
TRUSTS, PARTICULARLY WHEN THOSE PARTIES ARE MEMBERS OF THE SAME FAMILY
UNIT, CREATES SUBSTANTIAL OBSTACLES TO THE PROPER APPLICATION OF THE
FEDERAL ESTATE TAX LAWS.  AS THIS COURT SAID IN ESTATE OF SPIEGEL V.
COMMISSIONER, 335 U.S. 701, 705-706 (1949): 

"ANY REQUIREMENT . . . (OF) A POST-DEATH ATTEMPT TO PROBE THE
SETTLOR'S THOUGHTS IN REGARD TO THE TRANSFER, WOULD PARTIALLY IMPAIR
THE EFFECTIVENESS OF . . . (SECTION 811(C)) AS AN INSTRUMENT TO
FRUSTRATE ESTATE TAX EVASIONS."  WE AGREE THAT "THE TAXABILITY OF A
TRUST CORPUS . . . DOES NOT HINGE ON A SETTLOR'S MOTIVES, BUT DEPENDS
ON THE NATURE AND OPERATIVE EFFECT OF THE TRUST TRANSFER."  ID., AT
705.  SEE ALSO COMMISSIONER V. ESTATE OF CHURCH, SUPRA. 

WE THINK THESE OBSERVATIONS HAVE PARTICULAR WEIGHT WHEN APPLIED TO
THE RECIPROCAL TRUST SITUATION.  FIRST, INQUIRIES INTO SUBJECTIVE
INTENT, ESPECIALLY IN INTRAFAMILY TRANSFERS, ARE PARTICULARLY
PERILOUS.  THE PRESENT CASE ILLUSTRATES THAT IT IS, PRACTICALLY
SPEAKING, IMPOSSIBLE TO DETERMINE AFTER THE DEATH OF THE PARTIES WHAT
THEY HAD IN MIND IN CREATING TRUSTS OVER 30 YEARS EARLIER.  SECOND,
THERE IS A HIGH PROBABILITY THAT SUCH A TRUST ARRANGEMENT WAS INDEED
CREATED FOR TAX-AVOIDANCE PURPOSES.  AND, EVEN IF THERE WAS NO ESTATE
TAX-AVOIDANCE MOTIVE, THE SETTLOR IN A VERY REAL AND OBJECTIVE SENSE
DID RETAIN AN ECONOMIC INTEREST WHILE PURPORTING TO GIVE AWAY HIS
PROPERTY.  /8/  FINALLY, IT IS UNREALISTIC TO ASSUME THAT THE SETTLOR'S
OF THE TRUSTS, USUALLY MEMBERS OF ONE FAMILY UNIT, WILL HAVE CREATED
THEIR TRUSTS AS A BARGAINED-FOR EXCHANGE FOR THE OTHER TRUST. 
"CONSIDERATION," IN THE TRADITIONAL LEGAL SENSE, SIMPLY DOES NOT
NORMALLY ENTER INTO SUCH INTRAFAMILY TRANSFERS.  /9/ 

FOR THESE REASONS, WE HOLD THAT APPLICATION OF THE RECIPROCAL TRUST
DOCTRINE IS NOT DEPENDENT UPON A FINDING THAT EACH TRUST WAS CREATED AS
A QUID PRO QUO FOR THE OTHER.  SUCH A "CONSIDERATION" REQUIREMENT
NECESSARILY INVOLVES A DIFFICULT INQUIRY INTO THE SUBJECTIVE INTENT OF
THE SETTLORS.  NOR DO WE THINK IT NECESSARY TO PROVE THE EXISTENCE OF A
TAX-AVOIDANCE MOTIVE.  AS WE HAVE SAID ABOVE, STANDARDS OF THIS SORT,
WHICH RELY ON SUBJECTIVE FACTORS, ARE RARELY WORKABLE UNDER THE FEDERAL
ESTATE TAX LAWS.  RATHER, WE HOLD THAT APPLICATION OF THE RECIPROCAL
TRUST DOCTRINE REQUIRES ONLY THAT THE TRUSTS BE INTERRELATED, AND THAT
THE ARRANGEMENT, TO THE EXTENT OF MUTUAL VALUE, LEAVES THE SETTLORS IN
APPROXIMATELY THE SAME ECONOMIC POSITION AS THEY WOULD HAVE BEEN IN HAD
THEY CREATED TRUSTS NAMING THEMSELVES AS LIFE BENEFICIARIES.  /10/ 

APPLYING THIS TEST TO THE PRESENT CASE, WE THINK IT CLEAR THAT THE
VALUE OF THE JANET GRACE TRUST FUND MUST BE INCLUDED IN DECEDENT'S
ESTATE FOR FEDERAL ESTATE TAX PURPOSES.  IT IS UNDISPUTED THAT THE TWO
TRUSTS ARE INTERRELATED.  THEY ARE SUBSTANTIALLY IDENTICAL IN TERMS AND
WERE CREATED BY APPROXIMATELY THE SAME TIME.  INDEED, THEY WERE PART OF
A SINGLE TRANSACTION DESIGNED AND CARRIED OUT BY DECEDENT.  IT IS ALSO
CLEAR THAT THE TRANSFERS IN TRUST LEFT EACH PARTY, TO THE EXTENT OF
MUTUAL VALUE, IN THE SAME OBJECTIVE ECONOMIC POSITION AS BEFORE. 
INDEED, IT APPEARS, AS WOULD BE EXPECTED IN TRANSFERS BETWEEN HUSBAND
AND WIFE, THAT THE EFFECTIVE POSITION OF EACH PARTY VIS-A-VIS THE
PROPERTY DID NOT CHANGE AT ALL.  IT IS NO ANSWER THAT THE TRANSFERRED
PROPERTIES WERE DIFFERENT IN CHARACTER.  FOR PURPOSES OF THE ESTATE
TAX, WE THINK THAT ECONOMIC VALUE IS THE ONLY WORKABLE CRITERION. 
JOSEPH GRACE'S ESTATE REMAINED UNDIMINISHED TO THE EXTENT OF THE VALUE
OF HIS WIFE'S TRUST AND THE VALUE OF HIS ESTATE MUST ACCORDINGLY BE
INCREASED BY THE VALUE OF THAT TRUST. 

THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

  IT IS SO ORDERED. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

/1/  SECTION 811(C)(1)(B) PROVIDED THAT . . . 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED
BY INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY . . .
     .          .          .          . 

"(C) . . . 

"(1) GENERAL RULE.  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH
THE DECEDENT HAS AT ANY TIME MADE A TRANSFER (EXCEPT IN CASE OF A BONA
FIDE SALE FOR AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S
WORTH), BY TRUST OR OTHERWISE . . .

      .          .          .          . 

"(B) UNDER WHICH HE HAS RETAINED FOR HIS LIFE OR FOR ANY PERIOD NOT
ASCERTAINABLE WITHOUT REFERENCE TO HIS DEATH OR FOR ANY PERIOD WHICH
DOES NOT IN FACT END BEFORE HIS DEATH (I) THE POSSESSION OR ENJOYMENT
OF, OR THE RIGHT TO THE INCOME FROM, THE PROPERTY, OR (II) THE RIGHT,
EITHER ALONE OR IN CONJUNCTION WITH ANY PERSON, TO DESIGNATE THE
PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE INCOME
THEREFROM.  . . . " 

INTERNAL REVENUE CODE OF 1954, 26 U.S.C. 2036. 

/2/  SEE COLGAN & MOLLOY, CONVERSE TRUSTS-- THE RISE AND FALL OF A
TAX AVOIDANCE DEVICE, 3 TAX L.REV.  271 (1948). 

/3/  SEE, E.G., GLASER V. UNITED STATES, 306 F.2D 57 (C.A. 7TH CIR.
1962); ESTATE OF MORENO V. COMMISSIONER, 260 F.2D 389 (C.A. 8TH CIR.
1958); HANAUER'S ESTATE V. COMMISSIONER, 149 F.2D 857 (C.A. 2D CIR.),
CERT. DENIED, 326 U.S. 770 (1945); COLE'S ESTATE V. COMMISSIONER, 140
F.2D 636 (C.A. 8TH CIR. 1944). 

/4/  SEE S. REP. NO. 831, 81ST CONG., 1ST SESS., 5-6 (1949); H.R.
REP. NO. 920, 81ST CONG., 1ST SESS., 5 (1949). 

/5/  SEE MCLAIN V. JARECKI, 232 F.2D 211 (C.A. 7TH CIR. 1956);
NEWBERRY'S ESTATE V. COMMISSIONER, 201 F.2D 874 (C.A. 3D CIR. 1953); IN
RE LUEDER'S ESTATE, 164 F.2D 128 (C.A. 3D CIR. 1947). 

/6/  E.G., ORVIS V. HIGGINS, 180 F.2D 537 (C.A. 2D CIR.), CERT.
DENIED, 340 U.S. 810 (1950). 

/7/  SEE CASES CITED IN N. 5, SUPRA. 

/8/  FOR EXAMPLE, IN THE PRESENT CASE DECEDENT OSTENSIBLY DEVISED
THE TRUST PLAN TO AVOID AN IMMINENT FEDERAL GIFT TAX.  INSTEAD OF
ESTABLISHING TRUSTS FOR THE PRESENT BENEFIT OF HIS CHILDREN, HE COSE AN
ARRANGEMENT UNDER WHICH HE AND HIS WIFE RETAINED PRESENT ENJOYMENT OF
THE PROPERTY AND UNDER WHICH THE PROPERTY WOULD PASS TO THEIR CHILDREN
WITHOUT IMPOSITION OF EITHER ESTATE OF GIFT TAX. 

/9/  THE PRESENT CASE IS PROBABLY TYPICAL IN THIS REGARD.  JANET
GRACE CREATED HER TRUST BECAUSE DECEDENT REQUESTED THAT SHE DO SO; IT
WAS IN NO REAL SENSE A BARGAINED-FOR QUID PRO QUO FOR HIS TRUST.  SEE
ALSO HANAUER'S ESTATE V. COMMISSIONER, SUPRA, N. 3. 

/10/  WE DO NOT MEAN TO SAY THAT THE EXISTENCE OF "CONSIDERATION,"
IN THE TRADITIONAL LEGAL SENSE OF A BARGAINED-FOR EXCHANGE, CAN NEVER
BE RELEVANT.  IN CERTAIN CASES, INQUIRIES INTO THE SETTLOR'S REASONS
FOR CREATING THE TRUSTS MAY BE HELPFUL IN ESTABLISHING THE REQUISITE
LINK BETWEEN THE TWO TRUSTS.  WE ONLY HOLD THAT A FINDING OF A
BARGAINED-FOR CONSIDERATION IS NOT NECESSARY TO ESTABLISH RECIPROCITY. 

THE OBJECT OF A RECIPROCAL TRUST, AS I UNDERSTAND IT, IS FOR EACH
SETTLOR TO RID HIMSELF OF ALL TAXABLE POWER OVER THE CORPUS BY
EXCHANGING TAXABLE POWERS WITH THE OTHER SETTLOR.  YET JOSEPH P. GRACE
AND HIS WIFE DID NOT EXCHANGE TAXABLE POWERS.  EACH RETAINED A
SUFFICIENT POWER OVER THE CORPUS TO REQUIRE THE INCLUSION OF THE CORPUS
IN HIS OR HER TAXABLE ESTATE.  EACH SETTLOR, AS ONE OF THE THREE
TRUSTEES, RESERVED THE RIGHT TO ALTER THE TRUST BY PAYING TO THE CHIEF
BENEFICIARY "ANY AMOUNTS OF THE PRINCIPAL OF THE SAID TRUST, UP TO AND
INCLUDING THE WHOLE THEREOF, WHICH THE SAID TRUSTEES OR A MAJORITY OF
THEM MAY AT ANY TIME OR FROM TIME TO TIME DEEM ADVISABLE."  I HAVE
QUOTED FROM JANET GRACE'S TRUST.  BUT AN ALMOST IDENTICAL PROVISION IS
IN THE TRUST OF JOSPEH P. GRACE. 

I WOULD CONCLUDE FROM THE EXISTENCE OF THIS RESERVED POWER /1/  THAT
THE CORPUS OF THE JANET GRACE TRUST WAS INCLUDIBLE IN HER ESTATE FOR
PURPOSES OF THE ESTATE TAX.  LOBER V. UNITED STATES, 346 U.S. 335. 

THAT IS TO SAY THE USE OF A RECIPROCAL TRUST DEVICE TO AID THE
AVOIDANCE OF AN ESTATE TAX IS SIMPLY NOT PRESENTED BY THIS CASE. 

I WOULD DISMISS THE PETITION AS IMPROVIDENTLY GRANTED. 

/1/  THE RELEVANT PROVISION OF THE 1939 INTERNAL REVENUE CODE (SEC.
811(D)(2) IS PRACTICALLY IDENTICAL WITH THE CORRESPONDING PROVISION OF
THE 1954 CODE (26 U.S.C. 2038(A)(2).  EACH PROVIDES THAT A DECEDENT'S
GROSS ESTATE SHALL INCLUDE PROPERTY . . . 

"TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS AT
ANY TIME MADE A TRANSFER . . . WHERE THE ENJOYMENT THEREOF WAS SUBJECT
AT THE DATE OF HIS DEATH TO ANY CHANGE THROUGH THE EXERCISE OF A POWER
. . . BY THE DECEDENT ALONE OR IN CONJUNCTION WITH ANY PERSON, TO
ALTER, AMEND, OR REVOKE.  . . . "  TH PROVISIONS OF THE JOSEPH AND
JANET GRACE TRUSTS WOULD SEEM TO SATISFY THAT TEST, FOR ONLY TWO OUT OF
THE THREE TRUSTEES WERE NECESSARY TO ALTER THE TRUST.  SEE HELVERING V.
CITY BANK CO., 296 U.S. 85. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ACTING ASSISTANT ATTORNEY GENERAL ROBERTS,
HARRIS WEINSTEIN, HARRY BAUM, PHILIP R. MILLER, AND STUART A. SMITH. 

WILLIAM S. DOWNARD ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON
THE BRIEF WAS WALTER J. ROCKLER. 
..END :









RODRIQUEZ V. UNITED STATES, 395 U.S. 327 


       RODRIQUEZ V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT. 

        NO. 749.  ARGUED MARCH 26, 1969.-- DECIDED JUNE 2, 1969. 


PETITIONER, ALLEGEDLY OF MEXICAN DESCENT WITH A LIMITED KNOWLEDGE OF
ENGLISH, WAS CONVICTED ON SEVERAL NARCOTICS CHARGES.  IMMEDIATELY AFTER
PETITIONER WAS SENTENCED IN JUNE, 1963, HIS RETAINED COUNSEL INDICATED
ORALLY THAT PETITIONER WISHED TO APPEAL IN FORMA PAUPERIS.  THE TRIAL
JUDGE, WHO DID NOT ADVISE PETITIONER OF HIS RIGHT OF APPEAL, TOLD
PETITIONER'S COUNSEL THAT ALL MOTIONS HAD TO BE IN WRITING AND
ADJOURNED COURT.  NO WRITTEN MOTIONS WERE FILED AND PETITIONER'S
COUNSEL DID NOT SUBMIT A WRITTEN NOTICE OF APPEAL WITHIN THE 10-DAY
LIMIT.  WHEN PETITIONER LATER TRIED TO FILE SUCH A NOTICE HIMSELF, THE
TRIAL JUDGE RULED THAT THE EXPIRATION OF THE APPEAL PERIOD DEPRIVED THE
COURT OF JURISDICTION.  PETITIONER SOUGHT RELIEF IN THE COURT OF
APPEALS, ALLEGING THAT HE TOLD COUNSEL TO PERFECT AN APPEAL BUT THAT
COUNSEL FAILED TO DO SO.  THAT COURT DENIED PETITIONER'S MOTION FOR
LACK OF JURISDICTION AND ALSO REFUSED HABEAS CORPUS.  PETITIONER
THEREAFTER BROUGHT THIS ACTION FOR POST-CONVICTION RELIEF UNDER 28
U.S.C. 2255.  THE DISTRICT COURT DENIED RELIEF, AND THE COURT OF
APPEALS AFFIRMED, BOTH COURTS RELYING ON A NINTH CIRCUIT RULE REQUIRING
A DEFENDANT WHO CLAIMS THAT HE HAS BEEN DEPRIVED OF HIS RIGHT OF APPEAL
TO DISCLOSE THE ERRORS TO BE CLAIMED ON APPEAL AND TO SHOW THAT DENIAL
OF AN APPEAL HAD CAUSED PREJUDICE.  HELD: 

1.  THE NINTH CIRCUIT RULE IS INVALID SINCE (1) IT MAKES AN INDIGENT
DEFENDANT (WHO MUST PREPARE HIS PETITION UNDER SEC. 2255 WITHOUT
ASSISTANCE OF COUNSEL) FACE "THE DANGER OF CONVICTION BECAUSE HE DOES
NOT KNOW HOW TO ESTABLISH HIS INNOCENCE" AND (2) IT REQUIRES THE
SENTENCING COURT TO SCREEN OUT SUPPOSEDLY UNMERITORIOUS APPEALS IN
SUMMARY FASHION, A PROCEDURE REJECTED IN COPPEDGE V. UNITED STATES, 369
U.S. 438.  P. 330. 

2.  UNDER THE CIRCUMSTANCES OF THIS CASE, INCLUDING THE LENGTH OF
TIME SINCE PETITIONER WAS SENTENCED, THE TRIAL JUDGE'S FAILURE TO
ADVISE HIM OF HIS RIGHT TO APPEAL AND FAILURE TO INQUIRE INTO THE
CIRCUMSTANCES SURROUNDING PETITIONER'S ATTEMPT TO MAKE AN IN FORMA
PAUPERIS MOTION, NO HEARING IS REQUIRED AND THE CASE IS REMANDED TO THE
DISTRICT COURT, WHERE PETITIONER SHOULD BE RESENTENCED SO THAT HE MAY
PERFECT HIS APPEAL AS PRESCRIBED BY THE APPLICABLE RULES.  PP. 331
332. 

387 F.2D 117, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS SUIT FOR POST-CONVICTION RELIEF UNDER 28
U.S.C. 2255, ALLEGING THAT AFTER HIS CONVICTION ON SEVERAL NARCOTICS
CHARGES HE HAD BEEN IMPROPERLY DENIED HIS RIGHT TO APPEAL.  PETITIONER
WAS SENTENCED TO 11 CONCURRENT 20-YEAR TERMS ON JUNE 20, 1963. 
IMMEDIATELY AFTER THE SENTENCING, PETITIONER'S RETAINED COUNSEL
ATTEMPTED TO MAKE A MOTION REQUESTING LEAVE FOR PETITIONER TO PROCEED
IN FORMA PAUPERIS.  THE TRIAL JUDGE CUT PETITIONER'S COUNSEL OFF,
SAYING THAT ALL MOTIONS HAD TO BE IN WRITING.  WITHOUT MAKING ANY
FURTHER INQUIRY, HE ADJOURNED THE COURT.  NO WRITTEN MOTIONS WERE EVER
FILED, AND PETITIONER'S COUNSEL DID NOT SUBMIT A NOTICE OF APPEAL
WITHIN THE 10-DAY PERIOD SPECIFIED BY THE APPLICABLE RULE.  /1/  ON
AUGUST 7, 1963, AFTER THE TIME HAD EXPIRED, PETITIONER ATTEMPTED TO
FILE A NOTICE OF APPEAL HIMSELF.  HE DECLARED THAT AN ORAL NOTICE HAD
BEEN GIVEN AT TRIAL.  THE TRIAL JUDGE RULED THAT THE EXPIRATION OF THE
APPEAL PERIOD DEPRIVED THE COURT OF JURISDICTION.  PETITIONER THEN
SOUGHT RELIEF IN THE COURT OF APPEALS FOR THE NINTH CIRCUIT.  HE
ALLEGED THAT HE HAD TOLD HIS COUNSEL TO PERFECT AN APPEAL, BUT THAT
COUNSEL HAD FAILED TO DO SO.  THE NINTH CIRCUIT DENIED PETITIONER'S
MOTION FOR LACK OF JURISDICTION, CITING UNITED STATES V. ROBINSON, 361
U.S. 220 (1960).  IT ALSO REFUSED HABEAS CORPUS. 

THIS ACTION WAS COMMENCED ON FEBRUARY 15, 1966.  PETITIONER ALLEGED
THAT HE WAS OF MEXICAN DESCENT AND THAT HIS KNOWLEDGE OF ENGLISH WAS
LIMITED.  HE FURTHER CONTENDED THAT HIS RETAINED COUNSEL HAD
FRAUDULENTLY DEPRIVED HIM OF HIS RIGHT TO APPEAL.  HE ASKED THAT HIS
CONVICTION BE SET ASIDE AND THAT HE BE RESENTENCED SO THAT HE COULD
PROPERLY TAKE AN APPEAL.  THE DISTRICT COURT FOR THE NORTHERN DISTRICT
OF CALIFORNIA DENIED PETITIONER'S APPLICATION AND THE NINTH CIRCUIT
AFFIRMED.  387 F.2D 117 (1967).  BOTH COURTS RELIED ON A NINTH CIRCUIT
RULE REQUIRING APPLICANTS IN PETITIONER'S POSITION TO DISCLOSE WHAT
ERRORS THEY WOULD RAISE ON APPEAL AND TO DEMONSTRATE THAT DENIAL OF AN
APPEAL HAD CAUSED PREJUDICE.  WE GRANTED CERTIORARI TO RESOLVE A
CONFLICT AMONG THE CIRCUITS ABOUT THE PROPRIETY OF SUCH A REQUIREMENT. 
/2/  393 U.S. 951 (1968).  WE REVERSE. 

        I. 

AS THIS COURT HAS NOTED BEFORE, (PRESENT FEDERAL LAW HAS MADE AN
APPEAL FROM A DISTRICT COURT'S JUDGMENT OF CONVICTION IN A CRIMINAL
CASE WHAT IS, IN EFFECT, A MATTER OF RIGHT."  COPPEDGE V. UNITED
STATES, 369 U.S. 438, 441 (1962).  THE NINTH CIRCUIT SEEMS TO REQUIRE
AN APPLICANT UNDER 28 U.S.C. 2255 TO SHOW MORE THAN A SIMPLE
DEPRIVATION OF THIS RIGHT BEFORE RELIEF CAN BE ACCORDED.  IT ALSO
REQUIRES HIM TO SHOW SOME LIKELIHOOD OF SUCCESS ON APPEAL; IF THE
APPLICANT IS UNLIKELY TO SUCCEED, THE NINTH CIRCUIT WOULD CHARACTERIZE
ANY DENIAL OF THE RIGHT TO APPEAL AS A SPECIES OF HARMLESS ERROR.  WE
CANNOT SUBSCRIBE TO THIS APPROACH. 

APPLICANTS FOR RELIEF UNDER SEC. 2255 MUST, IF INDIGENT, PREPARE
THEIR PETITIONS WITHOUT THE ASSISTANCE OF COUNSEL.  SEE JOHNSON V.
AVERY, 393 U.S. 483, 487-488 (1969).  THOSE WHOSE EDUCATION HAS BEEN
LIMITED AND THOSE, LIKE PETITIONER, WHO LACK FACILITY IN THE ENGLISH
LANGUAGE MIGHT HAVE GRAVE DIFFICULTY IN MAKING EVAN A SUMMARY STATEMENT
OF POINTS TO BE RAISED ON APPEAL.  MOREOVER, THEY MAY NOT EVEN BE AWARE
OF ERRORS WHICH OCCURRED AT TRIAL.  THEY WOULD THUS BE DEPRIVED OF
THEIR ONLY CHANCE TO TAKE AN APPEAL EVEN THOUGH THEY HAVE NEVER HAD THE
ASSISTANCE OF COUNSEL IN PREPARING ONE.  LIKE THE APPROACH REJECTED
LONG AGO IN POWELL V. ALABAMA, 287 U.S. 45, 69 (1932), THE NINTH
CIRCUIT'S REQUIREMENT MAKES AN INDIGENT DEFENDANT FACE "THE DANGER OF
CONVICTION BECUASE HE DOES NOT KNOW HOW TO ESTABLISH HIS INNOCENCE." 
MOREOVER, THE NINTH CIRCUIT RULE WOULD REQUIRE THE SENTENCING COURT TO
SCREEN OUT SUPPOSEDLY UNMERITORUOUS APPEALS IN WAYS THIS COURT REJECTED
IN COPPEDGE.  THOSE WHOSE RIGHT TO APPEAL HAS BEEN FRUSTRATED SHOULD BE
TREATED EXACTLY LIKE ANY OTHER APPELLANTS; THEY SHOULD NOT BE GIVEN AN
ADDITIONAL HURDLE TO CLEAR JUST BECAUSE THEIR RIGHTS WERE VIOLATED AT
SOME EARLIER STAGE IN THE PROCEEDINGS.  ACCORDINGLY, WE HOLD THAT THE
COURTS BELOW ERRED IN REJECTING PETITIONER'S APPLICATION FOR RELIEF
BECAUSE OF HIS FAILURE TO SPECIFY THE POINTS HE WOULD RAISE WERE HIS
RIGHT TO APPEAL REINSTATED. 

        II. 

THE GOVERNMENT, WHILE NOT ARGUING THAT THE COURTS BELOW PROPERLY
DENIED RELIEF ON THE PLEADINGS, URGES US TO REMAND THIS CASE FOR A
TRUNCATED FACTUAL HEARING.  DRAWING UPON THIS COURT'S RECOGNITION IN
MACHIBRODA V. UNITED STATES, 368 U.S. 487, 495 (1962), THAT THE HEARING
REQUIREMENT OF SEC. 2255 "DOES NOT STRIP THE DISTRICT COURTS OF ALL
DISCRETION TO EXERCISE THEIR COMMON SENSE," THE GOVERNMENT SUGGESTS
THAT THE DISTRICT COURT BE INSTRUCTED TO OBTAIN AN AFFIDAVIT FROM
PETITIONER'S TRIAL ATTORNEY EXPLAINING WHY NO NOTICE OF APPEAL WAS
FILED.  THIS EXPLANATION, TOGETHER WITH PETITIONER'S ALLEGATIONS, WOULD
BE USED TO JUDGE THE PROPRIETY OF A HEARING. 

THIS ISSUE WAS NOT PRESENT IN THIS CASE WHEN CERTIORARI WAS GRANTED
AND WE DO NOT THINK IT IS PRESENT NOW.  FOR WE THINK IT "JUST UNDER THE
CIRCUMSTANCES," 28 U.S.C. 2106, FOR US TO DISPOSE OF PETITIONER'S
ARGUMENTS FINALLY AT THIS STAGE.  SIX YEARS HAVE NOW ELAPSED SINCE
PETITIONER WAS SENTENCED, AND WE DO NOT SEE HOW FURTHER DELAY AND
FURTHER PROLONGED PROCEEDINGS WOULD SERVE THE CAUSE OF JUSTICE. 
MOREOVER, IT APPEARS FROM THE TRIAL TRANSCRIPT IN THIS CASE THAT THE
TRIAL JUDGE ERRONEOUSLY FAILED TO ADVISE PETITIONER OF HIS RIGHT TO
APPEAL.  AT THE TIME OF TRIAL, FED. RULE CRIM. PROC. 37(A)(2) REQUIRED
THE SENTENCING JUDGE TO INFORM UNREPRESENTED DEFENDANTS OF THEIR RIGHT
TO APPEAL; THE CLERK UPON REQUEST WAS REQUIRED TO FILE A NOTICE OF
APPEAL FOR THE DEFENDANT.  /3/  COUNSEL'S ATTEMPT TO OBTAIN LEAVE FOR
PETITIONER TO PROCEED IN FORMA PAUPERIS SHOULD HAVE PUT THE TRIAL JUDGE
ON NOTICE THAT PETITIONER WOULD BE UNREPRESENTED IN THE FUTURE. 
MOREOVER, UNLESS AN APPEAL WAS CONTEMPLATED, THERE WOULD BE NO REASON
TO MAKE OUT SUCH A MOTION.  AS THE TRIAL JUDGE SHOULD HAVE RECOGNIZED,
PETITIONER WAS THEREFORE PRECISELY THE KIND OF DEFENDANT WHO NEEDED THE
PROTECTION AFFORDED BY THE RULE.  HAD HE KNOWN THAT THE CLERK WOULD
FILE A NOTICE OF APPEAL FOR HIM, HE COULD EASILY HAVE AVOIDED THE
DIFFICULTIES HE HAS FACED.  AT THE VERY LEAST, THE TRIAL JUDGE SHOULD
HAVE INQUIRED INTO THE CIRCUMSTANCES SURROUNDING THE ATTEMPT TO MAKE
THE IN FORMA PAUPERIS MOTION.  HIS FAILURE TO DO SO EFFECTIVELY
DEPRIVED PETITIONER OF HIS RIGHT TO APPEAL.  SINCE THIS DEPRIVATION
APPEARS ON THE RECORD BEFORE US, WE SEE NO NEED FOR ANY FACTUAL
DETERMINATIONS ON REMAND.  CF. UNITED STATES V. SMITH, 387 F.2D 268
(C.A. 6TH CIR. 1967). 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT
COURT WHERE PETITIONER SHOULD BE REPRESENTED SO THAT HE MAY PERFECT AN
APPEAL IN THE MANNER PRESCRIBED BY THE APPLICABLE RULES. 

              IT IS SO ORDERED. 

/1/  FED. RULE CRIM. PROC. 37(A), NOW FED. RULE APP. PROC 4(B). 

/2/  THE NINTH CIRCUIT RULE ORIGINATED IN TWO 1964 DECISIONS, WILSON
V. UNITED STATES, 338 F.2D 54, AND MILLER V. UNITED STATES, 339 F.2D
581.  CF. MCGARRY V. FOGLIANI, 370 F.2D 42 (C.A. 9TH CIR. 1966).  THE
FI-ST CIRCUIT HAS ADOPTED AN INTERMEDIATE POSITION; THE DEFENDANT IS
NOT REQUIRED TO SHOW PLAIN REVERSIBLE ERROR IN HIS APPLICATION, BUT THE
GOVERNMENT MAY DEFEAT RELIEF BY SHOWING THAT AN APPEAL WOULD BE
FUTILE.  DESMOND V. UNITED STATES, 333 F.2D 378 (1964).  BOTH
PETITIONER AND THE GOVERNMENT ATTEMPT TO FIND SUPPORT IN THE POSITION
OF THE TENTH CIRCUIT.  HANNIGAN V. UNITED STATES, 341 F.2D 587 (1965). 
THE FIFTH, SIXTH, SEVENTH, EIGHTH, AND DISTRICT OF COLUMBIA CIRCUITS DO
NOT REQUIRE ANY SHOWING ABOUT THE ISSUES TO BE RAISED ON APPEAL.  CAMP
V. UNITED STATES, 352 F.2D 800 (C.A. 5TH CIR. 1965); UNITED STATES V.
SMITH, 387 F.2D 268 (C.A. 6TH CIR. 1967); CALLAND V. UNITED STATES, 323
F.2D 405 (C.A. 7TH CIR. 1963); WILLIAMS V. UNITED STATES, 402 F.2D 548
(C.A. 8TH CIR. 1968); DILLANE V. UNITED STATES, 121 U.S.APP.D.C. 354,
350 F.2D 732 (1965). 

/3/  RULE 37(A)(2) PROVIDED: 

"WHEN A COURT AFTER TRIAL IMPOSES SENTENCE UPON A DEFENDANT NOT
REPRESENTED BY COUNSEL, THE DEFENDANT SHALL BE ADVISED OF HIS RIGHT TO
APPEAL AND IF HE SO REQUESTS, THE CLERK SHALL PREPARE AND FILE
FORTHWITH A NOTICE OF APPEAL ON BEHALF OF THE DEFENDANT." 

THIS PROVISION HAS SINCE BEEN TRANSFERRED TO RULE 32(A)(2).  IT NOW
APPLIES TO DEFENDANTS GOING TO TRIAL ON A PLEA OF NOT GUILTY, WHETHER
OR NOT THEY ARE REPRESENTED BY COUNSEL.  THE PROBLEM OF DETERMINING
WHETHER TO GIVE NOTICE TO A PERSON REPRESENTED AT TRIAL, BUT WHO MAY
NOT BE REPRESENTED ON APPEAL, WILL THEREFORE NOT RECUR. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH PART I OF THE COURT'S OPINION, BUT CANNOT SUBSCRIBE TO
PART II, IN WHICH THE COURT REINSTATES PETITIONER'S RIGHT TO APPEAL
WITHOUT FURTHER PROCEEDINGS BELOW.  IN TAKING THIS COURSE I THINK THE
COURT HAS BEEN TOO INSENSITIVE TO WHAT, ON THIS RECORD, IS DUE THE
TRIAL JUDGE, PETITIONER'S TRIAL COUNSEL, AND THE ORDERLY ADMINISTRATION
OF THE CRIMINAL PROCESS. 

IN MY OPINION, THIS RECORD DOES NOT SHOW THAT PETITIONER WAS
WRONGFULLY DENIED AN OPPORTUNITY TO APPEAL.  IT APPEARS FROM THE RECORD
THAT IMMEDIATELY FOLLOWING PETITIONER'S SENTENCING HIS LAWYER INDICATED
ORALLY THAT PETITIONER WISHED TO APPEAL IN FORMA PAUPERIS, AND THAT THE
JUDGE INFORMED THE LAWYER THAT "ALL MOTIONS" HAD TO BE MADE IN
WRITING.  THEREAFTER NO WRITTEN NOTICE OF APPEAL WAS FILED WITHIN THE
10-DAY LIMIT.  PETITIONER FURTHER ALLEGES THAT HE TOLD HIS COUNSEL TO
PERFECT AN APPEAL AND THAT COUNSEL NEGLECTED TO DO SO, BUT THOSE
ALLEGATIONS HAVE NEVER BEEN TESTED BY THE ADVERSARY PROCESS. 

THE COURT UNDERTAKES TO JUSTIFY ITS DECISION NOT TO REQUIRE A HEARING
AND FINDINGS ON THIS SCORE BY CHARACTERIZING AS "ERROR" THE SENTENCING
JUDGE'S FAILURE "TO ADVISE PETITIONER OF HIS RIGHT TO APPEAL," AS THEN
SUPPOSEDLY REQUIRED BY FED. RULE CRIM. PROC. 37(A)(2), AND BY
CONCLUDING THAT IT IS "JUST UNDER THE CIRCUMSTANCES," 28 U.S.C. 2106,
TO DISPOSE OF THE CASE AT THIS LEVEL.  SEE ANTE, AT 331-332. 

ALTHOUGH I SHARE THE COURT'S CONCERN THAT PETITIONER RECEIVE
PROMPTLY ALL RELIEF WHICH IS LEGALLY DUE HIM, I AM UNABLE TO ACCEPT
EITHER THIS ATTRIBUTION OF "ERROR" TO THE TRIAL JUDGE OR THIS BYPASSING
OF ESTABLISHED METHODS FOR DETERMINING THE TRUTH OF FACTUAL
ALLEGATIONS.  AT THE TIME PETITIONER WAS SENTENCED, RULE 37(A)(2)
REQUIRED THAT A SENTENCING JUDGE ADVISE ONLY "A DEFENDANT NOT
REPRESENTED BY COUNSEL" OF HIS RIGHT TO APPEAL.  /1/  IN THIS INSTANCE,
PETITIONER WAS REPRESENTED BY RETAINED COUNSEL BOTH AT TRIAL AND AT
SENTENCING.  THE EXCERPTS FROM THE TRIAL TRANSCRIPT UPON WHICH THE
COURT RELIES CONTAIN NOTHING AT ALL TO REBUT THE NATURAL INFERENCE,
APPARENTLY DRAWN BY THE SENTENCING JUDGE, THAT PETITIONER'S COUNSEL
WOULD CONTINUE TO REPRESENT HIM AT LEAST FOR THE PURPOSE OF FILING A
NOTICE OF APPEAL.  INDEED, PETITIONER'S OWN STATEMENT OF THE FACTS
REVEALS THAT THIS INFERENCE WAS WHOLLY JUSTIFIED, FOR PETITIONER
ASSERTS THAT AFTER HIS SENTENCING "HIS COUNSEL ADVISED BOTH HIM AND HIS
WIFE THAT HE WOULD ARRANGE FOR THEIR APPEALS."  /2/  THUS, EVEN IF IT
IS ASSUMED THAT "THE TRIAL JUDGE SHOULD HAVE INQUIRED INTO THE
CIRCUMSTANCES SURROUNDING THE ATTEMPT TO MAKE THE IN FORMA PAUPERIS
MOTION," ANTE, AT 332, THE JUDGE'S OMISSION WAS SURELY AT MOST HARMLESS
ERROR. 

I WOULD THEREFORE REMAND THE CASE TO THE DISTRICT COURT, SO THAT IT
MAY BE DETERMINED WHETHER PETITIONER IN FACT DID INSTRUCT HIS ATTORNEY
TO PERFECT AN APPEAL AND WHETHER THE ATTORNEY IN FACT NEGLECTED TO DO
SO.  THIS COURSE SEEMS TO ME TO BE REQUIRED BOTH IN THE INTEREST OF
ORDERLY PROCEDURE AND IN FAIRNESS TO PETITIONER'S TRIAL ATTORNEY. 

FURTHERMORE, AS SUGGESTED BY THE GOVERNMENT, I WOULD PERMIT THE
DISTRICT COURT DISCRETION TO BEGIN BY OBTAINING AN AFFIDAVIT FROM
PETITIONER'S ATTORNEY IN RESPONSE TO PETITIONER'S ALLEGATIONS.  WHO
KNOWS WHETHER THE ATTORNEY MAY NOT HAVE IN HIS POSSESSION DOCUMENTARY
EVIDENCE CONCLUSIVELY SHOWING THE ALLEGATIONS TO BE UNFOUNDED?  OR WHO
KNOWS WHETHER THE ATTORNEY MAY NOT WISH TO CONCEDE THE ACCURACY OF THE
ALLEGATIONS?  IN EITHER CASE, THE AFFIDAVIT PROCEDURE MIGHT OBVIATE THE
NECESSITY FOR A FULL-BLOWN HEARING.  IF THE ATTORNEY HAS NO DOCUMENTARY
EVIDENCE, AND IF HIS AFFIDAVIT REVEALS A FACTUAL CONTROVERSY, THEN OF
COURSE A HEARING WOULD BE REQUIRED.  SUCH A PROCEDURE ENTIRELY FITS THE
LANGUAGE OF 28 U.S.C. 2255 AND THIS COURT'S STATEMENT IN MACHIBRODA V.
UNITED STATES, 368 U.S. 487, 495 (1962), THAT SEC. 2255 "DOES NOT STRIP
THE DISTRICT COURTS OF ALL DISCRETION TO EXERCISE THEIR COMMON SENSE." 

/1/  THIS PROVISION WAS SUBSEQUENTLY AMENDED TO REQUIRE THAT THE
JUDGE SO ADVISE ALL DEFENDANTS, WHETHER OR NOT REPRESENTED BY COUNSEL. 
SEE ANTE, AT 331, N. 3.  SEE ALSO PEOPLES V. UNITED STATES, 337 F.2D 91
(1964); CALLAND V. UNITED STATES, 323 F.2D 405 (1963); BORUFF V. UNITED
STATES, 310 F.2D 918 (1962).     /2/  BRIEF FOR PETITIONER 6. 

WILLIAM R. WALLACE, BY APPOINTMENT OF THE COURT, 393 U.S. 974,
ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

BEATRICE ROSENBERG ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HER
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WILSON, AND LAWRENCE G. WALLACE. 
..END :














KOWAN V. CALIFORNIA, 395 U.S. 335 


       KOWAN V. CALIFORNIA. 

        APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT

           OF CALIFORNIA, COUNTY OF LOS ANGELES. 

        NO. 1268.  DECIDED JUNE 2, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

GLADYS TOWLES ROOT AND KIRPATRICK W. DILLING FOR APPELLANT. 

ROGER ARNEBERGH, PHILIP E. GREY, AND MICHAEL T. SAUER FOR APPELLEE. 

..END :







EGLESON V. MASSACHUSETTS, 395 U.S. 336 


       EGLESON V. MASSACHUSETTS. 

        APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

        NO. 1335.  DECIDED JUNE 2, 1969. 


. . . MASS. . . . , 244 N.E.2D 589, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

JOHN G. S. FLYM FOR APPELLANT. 

ROBERT H. QUINN, ATTORNEY GENERAL OF MASSACHUSETTS, JOHN J. WALL,
ASSISTANT ATTORNEY GENERAL, LAWRENCE P. COHEN, DEPUTY ASSISTANT
ATTORNEY GENERAL, AND GARRETT H. BYRNE FOR APPELLEE. 
..END :







CRANE V. CEDAR RAPIDS & I.C.R. CO., 395 U.S. 164 


       CRANE V. CEDAR RAPIDS & IOWA CITY RAILWAY CO.

     CERTIORARI TO THE SUPREME COURT OF IOWA. 

NO. 791.  ARGUED APRIL 24, 1969.-- DECIDED MAY 26, 1969. 


THE FEDERAL SAFETY APPLIANCE ACT OF 1893 REQUIRES INTERSTATE
RAILROADS TO EQUIP FREIGHT CARS "WITH COUPLERS COUPLING AUTOMATICALLY
BY IMPACT," BUT DOES NOT CREATE A FEDERAL CAUSE OF ACTION FOR EMPLOYEES
OR NONEMPLOYEES SEEKING DAMAGES FOR INJURIES RESULTING FROM A
RAILROAD'S VIOLATION OF THE ACT.  THE FEDERAL EMPLOYERS' LIABILITY ACT
OF 1908 PROVIDES A CAUSE OF ACTION FOR A RAILROAD EMPLOYEE BASED ON A
VIOLATION OF THE SAFETY APPLIANCE ACT, IN WHICH HE IS REQUIRED TO PROVE
ONLY THE STATUTORY VIOLATION AND THE CARRIER IS DEPRIVED OF THE
DEFENSES OF CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 
PETITIONER, A NONEMPLOYEE OF RESPONDENT RAILROAD, SUED IN THE IOWA
COURTS FOR DAMAGES RESULTING FROM A DEFECTIVE COUPLER, IN VIOLATION OF
THE SAFETY APPLIANCE ACT.  THE JURY, WHICH WAS INSTRUCTED THAT
PETITIONER HAD "TO ESTABLISH BY A PREPONDERANCE OR THE GREATER WEIGHT
OF THE EVIDENCE . . . THAT (HE) WAS FREE FROM CONTRIBUTORY NEGLIGENCE,"
RETURNED A VERDICT FOR THE RAILROAD.  HELD:  IN ACCORDANCE WITH
CONSISTENT INTERPRETATION OF THE STATUTORY SCHEME, A NONEMPLOYEE MUST
LOOK FOR HIS REMEDY TO A COMMON-LAW ACTION IN TORT AND, IN THE ABSENCE
OF DIVERSITY, MUST SUE IN A STATE COURT; AND THE DEFINITION OF
CAUSATION AND THE AVAILABILITY OF THE DEFENSES OF ASSUMPTION OF RISK
AND CONTRIBUTORY NEGLIGENCE ARE LEFT TO STATE LAW.  PP. 166-167. 

-- IOWA-- , 160 N.W.2D 838, AFFIRMED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER A STATE MAY MAKE THE DEFENSE OF
CONTRIBUTORY NEGLIGENCE AVAILABLE TO A RAILROAD SUED BY A NONEMPLOYEE
FOR DAMAGES FOR PERSONAL INJURIES CAUSED BY THE RAILROAD'S FAILURE TO
MAINTAIN ITS FREIGHT CARS "WITH COUPLERS COUPLING AUTOMATICALLY BY
IMPACT," AS REQUIRED BY SEC. 2 OF THE FEDERAL SAFETY APPLIANCE ACT OF
1893, 27 STAT. 531, 45 U.S.C. 2.  /1/ 

PETITIONER WAS IN THE EMPLOY OF CARGILL, INC., AT ITS CEDAR RAPIDS,
IOWA, MEAL HOUSE AND ELEVATOR ON THE LINE OF RESPONDENT RAILROAD. 
PETITIONER'S DUTIES WERE TO MOVE, WEIGH, AND LOAD FREIGHT CARS SPOTTED
BY RESPONDENT ON CARGILL'S SIDING TRACK.  HE WAS WORKING ON THE TOP OF
THE THIRD OF A STRING OF SIX CARS WHEN A COUPLER MALFUNCTIONED AND
CAUSED THE FIRST TWO CARS TO BREAK AWAY.  PETITIONER DISMOUNTED AND RAN
TO THE RUNAWAY CARS.  HE CLIMBED TO THE ROOF OF ONE AND WAS ATTEMPTING
TO APPLY ITS BRAKE WHEN HE FELL 12 TO 14 FEET TO A CEMENT APRON BETWEEN
THE TRACKS AND SUFFERED SEVERE INJURIES.  HE BROUGHT THIS ACTION IN
TORT IN THE IOWA DISTRICT COURT OF LINN COUNTY.  THE ONLY CLAIM
SUBMITTED TO THE JURY WAS THAT PETITIONER'S INJURIES RESULTED FROM
RESPONDENT'S MAINTENANCE, IN VIOLATION OF SEC. 2, OF A FREIGHT CAR WITH
A DEFECTIVE COUPLER.  OVER PETITIONER'S OBJECTION THE JURY WAS
INSTRUCTED IN ACCORDANCE WITH SETTLED IOWA TORT LAW THAT IT WAS
PETITIONER'S BURDEN "TO ESTABLISH BY A PREPONDERANCE OR THE GREATER
WEIGHT OF THE EVIDENCE . . . THAT (HE) WAS FREE FROM CONTRIBUTORY
NEGLIGENCE," DEFINED AS "NEGLIGENCE ON THE PART OF A PERSON INJURED . .
. WHICH CONTRIBUTED IN ANY WAY OR IN ANY DEGREE DIRECTLY TO THE
INJURY."  THE JURY RETURNED A VERDICT FOR RESPONDENT RAILROAD.  THE
SUPREME COURT OF IOWA AFFIRMED,-- IOWA-- , 160 N.W.2D 838 (1968).  WE
GRANTED CERTIORARI.  393 U.S. 1047 (1969).  WE AFFIRM. 

THE SAFETY APPLIANCE ACT DID NOT CREATE A FEDERAL CAUSE OF ACTION
FOR EITHER EMPLOYEES OR NONEMPLOYEES SEEKING DAMAGES FOR INJURIES
RESULTING FROM A RAILROAD'S VIOLATION OF THE ACT.  MOORE V. C. & O.R.
CO., 291 U.S. 205 (1934).  CONGRESS DID, HOWEVER, SUBSEQUENTLY PROVIDE
A CAUSE OF ACTION FOR EMPLOYEES:  THE CAUSE OF ACTION CREATED BY THE
FEDERAL EMPLOYERS' LIABILITY ACT OF 1908, 35 STAT. 65, AS AMENDED, 45
U.S.C. 51 ET SEQ., EMBRACES CLAIMS OF AN EMPLOYEE BASED ON VIOLATIONS
OF THE SAFETY APPLIANCE ACT.  IN SUCH ACTIONS, THE INJURED EMPLOYEE IS
REQUIRED TO PROVE ONLY THE STATUTORY VIOLATION AND THUS IS RELIEVED OF
THE BURDEN OF PROVING NEGLIGENCE, O'DONNELL V. ELGIN, J. & E.R. CO.,
338 U.S. 384 (1949); CORAY V. SOUTHERN PAC. R. CO., 335 U.S. 520
(1949); AFFOLDER V. NEW YORK, C. & ST. L.R. CO., 339 U.S. 96 (1950). 
HE IS NOT REQUIRED TO PROVE COMMON-LAW PROXIMATE CAUSATION BUT ONLY
THAT HIS INJURY RESULTED "IN WHOLE OR IN PART" FROM THE RAILROAD'S
VIOLATION OF THE ACT, 45 U.S.C. 51; ROGERS V. MISSOURI PAC. R. CO., 352
U.S. 500 (1957), AND THE RAILROAD IS DEPRIVED OF THE DEFENSES OF
CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK, 45 U.S.C. 53, 54. 

IN CONTRAST, THE NONEMPLOYEE MUST LOOK FOR HIS REMEDY TO A COMMON
LAW ACTION IN TORT, WHICH IS TO SAY THAT HE MUST SUE IN A STATE COURT,
IN THE ABSENCE OF DIVERSITY, TO IMPLEMENT A STATE CAUSE OF ACTION. 
FAIRPORT, P. & E.R. CO. V. MEREDITH, 292 U.S. 589 (1934).  "(THE RIGHT
TO RECOVER DAMAGES SUSTAINED . . . THROUGH THE BREACH OF DUTY SPRANG
FROM THE PRINCIPLE OF THE COMMON LAW . . . AND WAS LEFT TO BE ENFORCED
ACCORDINGLY . . . "  MOORE V. C. & O.R. CO., SUPRA, AT 215.  IN
CONSEQUENCE, WE HAVE CONSISTENTLY HELD THAT UNDER THE PRESENT STATUTORY
SCHEME THE DEFINITION OF CAUSATION AND THE AVAILABILITY OF THE DEFENSES
OF ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE ARE LEFT TO STATE
LAW.  SCHLEMMER V. BUFFALO, R. & P.R. CO., 220 U.S. 590 (1911);
FAIRPORT, P. & E.R. CO. V. MEREDITH, SUPRA, AT 598; MOORE V. C. & O.R.
CO., SUPRA, AT 215; TIPTON V. ATCHISON, T. & S.F.R. CO., 298 U.S. 141
(1936).  OUR EXAMINATION OF THE RELEVANT LEGISLATIVE MATERIALS
CONVINCES US THAT THIS LINE OF DECISIONS SHOULD BE REAFFIRMED.  /2/ 

WE RECOGNIZE THE INJUSTICE OF DENYING RECOVERY TO A NONEMPLOYEE
WHICH WOULD NOT BE DENIED TO AN EMPLOYEE PERFORMING THE SAME TASK IN
THE SAME MANNER AS DID PETITIONER.  /3/  BUT IT IS FOR CONGRESS TO
AMEND THE STATUTE TO PREVENT SUCH INJUSTICE.  IT IS NOT PERMITTED THE
COURT TO REWRITE THE STATUTE. 

              AFFIRMED. 

/1/  SECTION 2 OF THE SAFETY APPLIANCE ACT PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER ENGAGED IN INTERSTATE
COMMERCE BY RAILROAD TO HAUL OR PERMIT TO BE HAULED OR USED ON ITS LINE
ANY CAR USED IN MOVING INTERSTATE TRAFFIC NOT EQUIPPED WITH COUPLERS
COUPLING AUTOMATICALLY BY IMPACT, AND WHICH CAN BE UNCOUPLED WITHOUT
THE NECESSITY OF MEN GOING BETWEEN THE ENDS OF THE CARS."  45 U.S.C.
2. 

/2/  IN ADDITION TO THE FEDERAL SAFETY APPLIANCE ACT AND THE FEDERAL
EMPLOYERS' LIABILITY ACT, SEE H.R. REP. NO. 1386, 60TH CONG.,1ST SESS.,
6 (1908). 

/3/  SEE LOUISELL & ANDERSON, THE SAFETY APPLIANCE ACT AND THE FELA:
A PLEA FOR CLARIFICATION, 18 LAW & CONTEMP.PROB.  281 (1953). 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

CONGRESS, NOT THE STATES, PASSED THE FEDERAL SAFETY APPLIANCE ACT OF
1893, 27 STAT. 531, 45 U.S.C. 1 ET SEQ. CONSEQUENTLY, I THINK THE
QUESTION OF A RAILROAD'S LIABILITY TO A PERSON INJURED BY A VIOLATION
OF THAT ACT IS A FEDERAL, NOT A STATE, QUESTION.  ALTHOUGH IT IS TRUE
THAT SEVERAL OLD CASES, CITED BY THE COURT, GAVE THE SAFETY APPLIANCE
ACT A DIFFERENT INTERPRETATION, AND LEFT INJURED WORKERS TO WHATEVER
REMEDIES THEY MIGHT HAVE UNDER STATE LAW, THE PREMISES OF THESE OLD
DECISIONS HAVE BEEN THOROUGHLY AND I THINK PROPERLY DISCREDITED.  SEE
J. I. CASE CO. V. BORAK, 377 U.S. 426 (1964). 

THE FEDERAL EMPLOYERS' LIABILITY ACT OF 1908, 35 STAT. 65, AS
AMENDED, 45 U.S.C. 51 ET SEQ., ALLOWS RAILROAD EMPLOYEES INJURED BY
VIOLATIONS OF THE SAFETY APPLIANCE ACT TO RECOVER AGAINST THEIR
EMPLOYER, AND CONTRIBUTORY NEGLIGENCE OF THE EMPLOYEE IS NOT A
DEFENSE.  I CANNOT BELIEVE THAT CONGRESS INTENDED THAT CONTRIBUTORY
NEGLIGENCE SHOULD BECOME A DEFENSE SIMPLY BECAUSE THE ACTION IS BROUGHT
BY A NONEMPLOYEE, WHEN AN EMPLOYEE DOING THE SAME WORK AND SUBJECTED TO
THE SAME VIOLATION OF THE SAFETY APPLIANCE ACT COULD CLEARLY RECOVER. 
FOR THIS REASON I WOULD HOLD THAT UNDER FEDERAL LAW CONTRIBUTORY
NEGLIGENCE IS NOT A DEFENSE IN THIS CASE AND REVERSE THE JUDGMENT OF
THE IOWA SUPREME COURT. 

E. BARRETT PRETTYMAN, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH
HIM ON THE BRIEFS WERE JOHN B. HALLORAN AND JAMES L. ALFVEBY. 

WILLIAM M. DALLAS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS JOHN F. GASTON. 

EDWARD J. HICKEY, JR., AND JAMES L. HIGHSAW, JR., FILED A BRIEF FOR
THE RAILWAY LABOR EXECUTIVES' ASSN. AS AMICUS CURIAE URGING REVERSAL. 
..END :








SULLIVAN V. UNITED STATES, 395 U.S. 169 


       SULLIVAN, TAX COMMISSIONER OF CONNECTICUT, ET AL. V. UNITED

           STATES ET AL.

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 610.  ARGUED APRIL 2, 1969.-- DECIDED MAY 26, 1969. 


EXEMPT SERVICEMEN STATIONED IN CONNECTICUT WHO ARE RESIDENTS OR
DOMICILIARIES OF OTHER STATES FROM SALES AND USE TAXES IMPOSED BY
CONNECTICUT.  PP. 171-184. 

398 F.2D 672, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE ISSUE RAISED BY THIS APPEAL IS WHETHER SEC. 514 OF THE SOLDIERS'
AND SAILORS' CIVIL RELIEF ACT /1/  PROHIBITS CONNECTICUT FROM IMPOSING
ITS SALES AND USE TAXES ON SERVICEMEN STATIONED THERE WHO ARE RESIDENTS
OR DOMICILIARIES OF OTHER STATES.  THE UNITED STATES INSTITUTED THIS
ACTION IN FEDERAL COURT AGAINST THE APPROPRIATE CONNECTICUT OFFICIALS
ON BEHALF OF THE AGGRIEVED SERVICEMEN.  /2/  THE DISTRICT COURT ENTERED
A DECLARATORY JUDGMENT THAT THE FEDERAL STATUTE PREVENTS COLLECTION OF
THE SALES AND USE TAXES FROM SUCH SERVICEMEN, /3/  AND THE COURT OF
APPEALS AFFIRMED.  /4/  WE NOTED PROBABLE JURISDICTION OF THIS APPEAL. 
/5/ 

THE SALES AND USE TAXES IMPOSED BY THE CONNECTICUT EDUCATION,
WELFARE AND PUBLIC HEALTH TAX ACT /6/  ARE TYPICAL OF THOSE ENACTED BY
THE VAST MAJORITY OF STATES.  /7/  A TAX OF 3 1/2% IS LEVIED ON THE
GROSS RECEIPTS FROM SALES OF TANGIBLE PERSONAL PROPERTY AT RETAIL
WITHIN THE STATE.  /8/  ALTHOUGH THE RETAILER IS LIABLE FOR PAYMENT OF
THE TAX, HE IS REQUIRED TO PASS IT ON TO PURCHASERS BY ADDING IT TO THE
ORIGINAL SALES PRICE OF ALL ITEMS SOLD.  /9/  THE USE TAX IS IMPOSED AT
THE SAME RATE ON "THE STORAGE, USE OR OTHER CONSUMPTION" IN THE STATE
OF TANGIBLE PERSONAL PROPERTY PURCHASED FROM ANY RETAILER.  /10/  THE
USE TAX PROVISIONS-- DESIGNED TO REACH THE USE OR CONSUMPTION IN THE
STATE OF PROPERTY PURCHASED OUTSIDE IT /11/  -- EXEMPT ALL TRANSACTIONS
WHICH ARE SUBJECT TO THE SALES TAX.  /12/  AND WHILE THE CONSUMER IS
LIABLE DIRECTLY TO THE STATE FOR THE USE TAX, HE CAN DISCHARGE HIS
LIABILITY BY PAYING IT TO THE RETAILER IF THE RETAILER IS "ENGAGED IN
BUSINESS" WITHIN THE STATE AND THEREFORE REQUIRED TO COLLECT THE USE
TAX.  /13/  THE USE TAX IS ALSO IMPOSED UPON PURCHASERS OF MOTOR
VEHICLES, BOATS, OR AIRPLANES FROM NONRETAILERS.  /14/  THE AMOUNT OF
ANY TAX UNDER THE ACT IS REDUCED BY WHATEVER SALES OR USE TAX HAS
ALREADY BEEN COLLECTED "BY ANY OTHER STATE OR POLITICAL SUBDIVISION
THEREOF."  /15/  FINALLY, THE ACT COMMANDS THAT ALL PROCEEDS OF THE
SALES AND USE TAXES "SHALL BE ALLOCATED TO AND EXPENDED FOR PUBLIC
HEALTH, WELFARE AND EDUCATION PURPOSES ONLY."  /16/ 

BY STIPULATION AND AFFIDAVITS IN THE DISTRICT COURT, THE PARTIES
OFFERED SOME EXAMPLES OF THE IMPOSITION OF THESE TAXES ON NAVAL
PERSONNEL STATIONED IN CONNECTICUT BUT DOMICILED ELSEWHERE.  LIEUTENANT
SCHUMAN, A NEBRASKA DOMICILIARY, AND COMMANDER CARROLL, A MICHIGAN
DOMICILIARY, BOUGHT USED MOTORBOATS FROM NONRETAILERS IN CONNECTICUT
AND WERE ASSESSED A USE TAX.  SCHUMAN PAID THE TAX UNDER PROTEST, AND
CARROLL HAS REFUSED TO PAY, EACH CLAIMING THAT HE IS EXEMPT UNDER THE
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT.  /17/  LIEUTENANT COMMANDER
SHAFFER AND COMMANDER FOSTER, WHO ARE DOMICILED IN PENNSYLVANIA AND
TEXAS RESPECTIVELY, EACH PURCHASED A NEW CAR; THE CONNECTICUT RETAILER
COLLECTED AND PAID THE SALES TAX.  FOSTER REGISTERED HIS CAR IN TEXAS,
WHICH ALSO EXACTED A SALES OR USE TAX.  /18/  FINALLY, COMMANDER
ROLOFF, WHOSE HOME STATE IS WISCONSIN, PURCHASED A USED CAR IN FLORIDA
AND PAID THAT STATE A 2% SALES TAX.  WHEN HE REGISTERED THE CAR IN
CONNECTICUT, HE WAS ASSESSED AND PAID THE USE TAX, WITH CREDIT FOR THE
FLORIDA SALES TAX. 

AS ENACTED IN 1942, /19/  SEC. 514 OF THE SOLDIERS' AND SAILORS'
CIVIL RELIEF ACT PROVIDED THAT FOR PURPOSES OF ANY STATE "TAXATION IN
RESPECT OF ANY PERSON, OR OF HIS (PERSONAL) /20/  PROPERTY, INCOME, OR
GROSS INCOME," HE SHALL NOT BE DEEMED TO HAVE LOST HIS RESIDENCE OR
DOMICILE IN HIS HOME STATE OR ACQUIRED A RESIDENCE IN ANY OTHER STATE
"SOLELY BY REASON OF BEING ABSENT (FROM HOME) IN COMPLIANCE WITH
MILITARY OR NAVAL ORDERS."  CLARIFYING LANGUAGE WAS ADDED IN 1944 TO
PROVIDE THAT FOR PURPOSES OF TAXATION IN RESPECT OF PERSONAL PROPERTY,
THE "PERSONAL PROPERTY SHALL NOT BE DEEMED TO BE LOCATED OR PRESENT IN
OR TO HAVE A SITUS FOR TAXATION IN SUCH STATE."  ALSO IN 1944 CONGRESS
ENACTED A SPECIAL SUBSECTION FOR AUTOMOBILES:  SERVICEMEN ARE EXEMPT
FROM "LICENSES, FEES, OR EXCISES IMPOSED IN RESPECT OF MOTOR VEHICLES
OR THE USE THEREOF" IF THEY HAVE PAID SUCH LEVIES IN THEIR HOME
STATES.  FINALLY, IN 1962, /21/  CONGRESS ADDED THE PROVISION THAT SEC.
514 APPLIES TO PROPERTY IN ANY TAX JURISDICTION OTHER THAN THE
SERVICEMAN'S HOME STATE, "REGARDLESS OF WHERE THE OWNER MAY BE SERVING"
IN COMPLIANCE WITH MILITARY ORDERS.  /22/ 

WE THINK IT CLEAR FROM THE FACE OF SEC. 514 THAT STATE TAXATION OF
SALES TO SERVICEMEN IS NOT PROSCRIBED.  A TAX ON THE PRIVILEGE OF
SELLING OR BUYING PROPERTY HAS LONG BEEN RECOGNIZED AS DISTINCT FROM A
TAX ON THE PROPERTY ITSELF.  /23/  AND WHILE SEC. 514 REFERS TO TAXES
"IN RESPECT OF" RATHER THAN "ON"  PERSONAL PROPERTY, WE THINK IT AN
OVERLY STRAINED CONSTRUCTION TO SAY THAT TAXATION OF THE SALES
TRANSACTION IS THE SAME AS TAXATION "IN RESPECT OF" THE PERSONAL
PROPERTY TRANSFERRED.  NOR DOES IT MATTER TO THE IMPOSITION OF THE
SALES TAX THAT THE PROPERTY "SHALL NOT BE DEEMED TO BE LOCATED OR
PRESENT IN OR TO HAVE A SITUS FOR TAXATION" IN CONNECTICUT.  THE
INCIDENCE OF THE SALES TAX IS NOT THE PROPERTY ITSELF OR ITS PRESENCE
WITHIN THE STATE.  RATHER IT IS THE TRANSFER OF TITLE FOR
CONSIDERATION, /24/  A LEGAL ACT WHICH CAN BE ACCOMPLISHED WITHOUT THE
PROPERTY EVER ENTERING THE STATE.  /25/  HAD CONGRESS INTENDED TO
INCLUDE SALES TAXES WITHIN THE COVERAGE OF SEC. 514, IT SURELY WOULD
NOT HAVE EMPLOYED LANGUAGE SO POORLY SUITED TO THAT PURPOSE AS
"TAXATION IN RESPECT OF THE PERSONAL PROPERTY." 

IT IS CONTENDED ON BEHALF OF THE SERVICEMEN THAT, EVEN IF SEC. 514
DOES NOT ENCOMPASS SALES TAXES, AT LEAST IT PROHIBITS TAXATION OF THE
USE OF PERSONAL PROPERTY.  NOT ONLY ARE USE TAXES SAID TO FALL
LITERALLY WITHIN THE MEANING OF THE PHRASE "TAXATION IN RESPECT OF THE
PERSONAL PROPERTY," BUT SEC. 514 SPECIFICALLY REFERS IN TWO PLACES TO
PROPERTY "OR THE USE THEREOF."  MOREOVER, IT IS ARGUED, THE SOLE
JURISDICTIONAL BASIS OF THE USE TAX IS THE LOCATION OF THE PERSONAL
PROPERTY IN CONNECTICUT; YET IMPOSITION OF A TAX WITH SUCH INCIDENCE ON
A SERVICEMAN CONTRAVENES THE COMMAND OF SEC. 514 THAT HIS PERSONAL
PROPERTY "SHALL NOT BE DEEMED TO BE LOCATED OR PRESENT IN OR TO HAVE A
SITUS FOR TAXATION IN SUCH STATE."  WHILE WE AGREE THAT USE TAXES ARE
NOT SO CLEARLY EXCLUDED BY THE LANGUAGE OF SEC. 514 AS ARE SALES TAXES,
NEITHER DO WE BELIEVE THAT THEY ARE CLEARLY INCLUDED.  AND
CONSIDERATION OF THE PURPOSE AND LEGISLATIVE HISTORY OF SEC. 514 ALONG
WITH ITS LANGUAGE AND OTHER FACTORS HAS LED US TO THE CONCLUSION THAT
CONGRESS DID NOT INTEND TO FREE SERVICEMEN STATIONED AWAY FROM HOME
FROM THE SALES OR USE TAXES OF THE HOST STATE. 

THE LEGISLATIVE HISTORY OF THE 1942 ENACTMENT AND THE 1944 AND 1962
AMENDMENTS OF SEC. 514 REVEALS THAT CONGRESS INTENDED THE ACT TO COVER
ONLY ANNUALLY RECURRING TAXES ON PROPERTY-- THE FAMILIAR AD VALOREM
PERSONAL PROPERTY TAX.  THUS, THE REPORTS ADVERT TO THE POSSIBILITY
THAT SERVICEMEN ORDERED TO MOVE AROUND THE COUNTRY-- AS THEY WERE
INCREASINGLY DURING WORLD WAR II-- MIGHT HAVE THEIR PROPERTY TAXED BY
MORE THAN ONE STATE "WITHIN THE SAME CALENDAR YEAR."  /26/  AND THE
REPORTS THROUGHOUT REFER EXPLICITLY TO "PERSONAL-PROPERTY TAXES ON
PROPERTY."  /27/  THE LANGUAGE OF THESE REPORTS IS SIMPLY
IRRECONCILABLE WITH THE PROPOSITION THAT CONGRESS THOUGHT THE ACT WOULD
APPLY TO A TAX WHICH, LIKE THE SALES OR USE TAX, DOES NOT APPLY
ANNUALLY TO ALL PERSONAL PROPERTY WITHIN THE STATE BUT IS IMPOSED ONLY
ONCE AND THEN ONLY WHEN THERE HAS BEEN A RETAIL SALES TRANSACTION. 
/28/ 

THE ABSENCE OF ANY REFERENCE TO SALES AND USE TAXES IN THE HISTORY
OF SEC. 514 IS PARTICULARLY ILLUMINATIVE OF LEGISLATIVE INTENT WHEN
CONSIDERED IN THE LIGHT OF CONGRESS' FULL AWARENESS OF SUCH STATE TAXES
AND THEIR RELATIONSHIP TO FEDERAL INTERESTS.  SALES AND USE TAXES WERE
PR VALENT BY 1942, /29/  AND CONGRESS HAD DEALT SPECIFICALLY WITH THEM
ONLY TWO YEARS EARLIER.  IN THE 1940 BUCK ACT, /30/  CONGRESS PROVIDED
THAT THE STATES HAVE "FULL JURISDICTION AND POWER TO LEVY AND COLLECT"
SALES AND USE TAXES IN "ANY FEDERAL AREA,"  /31/  EXCEPT WITH RESPECT
TO THE SALE OR USE OF PROPERTY SOLD BY THE UNITED STATES OR ITS
INSTRUMENTALITIES THROUGH COMMISSARIES, SHIP'S STORES, AND THE LIKE. 
/32/  IF NOTHING ELSE, THIS STATUTE ILLUSTRATES THAT CONGRESS IN 1942
WAS FULLY COGNIZANT OF STATE SALES AND USE TAXES AND IDENTIFIED THEM BY
NAME WHEN IT WANTED TO DEAL WITH THEM.  MOREOVER, IT IS UNLIKELY THAT
CONGRESS, WHICH HAD IN 1940 EXPRESSLY AUTHORIZED SALES AND USE TAXATION
OF SERVICEMEN EVERYWHERE ON FEDERAL MILITARY RESERVATIONS EXCEPT POST
EXCHANGES, WOULD TWO YEARS LATER HAVE EXEMPTED SO MANY OF THEM FROM
SUCH TAXES BY MEANS OF SUCH IMPRECISE LANGUAGE AS THAT OF SEC. 514 OF
THE SOLIDERS' AND SAILORS' CIVIL RELIEF ACT.  AND SINCE SERVICEMEN CAN
APPARENTLY PURCHASE ALL THE NECESSITIES AND MANY OF THE LUXURIES OF
LIFE TAX-FREE AT MILITARY COMMISSARIES, /33/  CONGRESS MAY REASONABLY
HAVE CONSIDERED THE OCCASIONAL SALES AND USE TAXES THAT SERVICEMEN
MIGHT HAVE TO PAY AN INSIGNIFICANT BURDEN, AS COMPARED WITH ANNUAL AD
VALOREM PROPERTY TAXES, AND CONSEQUENTLY NOT DESERVING OF THE SAME
EXEMPTION.  /34/ 

FROM ALL TAXES OF THE HOST STATE.  IT WAS ENACTED WITH THE MUCH
NARROWER DESIGN "TO PREVENT MULTIPLE STATE TAXATION OF THE PROPERTY." 
/35/  AND THE SUBSTANTIAL RISK OF DOUBLE TAXATION UNDER MULTI-STATE AD
VALOREM PROPERTY TAXES DOES NOT EXIST WITH RESPECT TO SALES AND USE
TAXES.  LIKE CONNECTICUT, NEARLY EVERY STATE WHICH LEVIES SUCH TAXES
PROVIDES A CREDIT FOR SALES OR USE TAXES PAID ON THE TRANSACTION TO
ANOTHER STATE.  /36/  OF COURSE IT IS TRUE, AS WE HELD IN DAMERON V.
BRODHEAD, 345 U.S. 322, THAT SEC. 514 PREVENTS IMPOSITION OF AD VALOREM
PROPERTY TAXES EVEN THOUGH THE SERVICEMAN'S HOME STATE DOES NOT TAX THE
PROPERTY.  BUT THE PREDOMINANT LEGISLATIVE PURPOSE NONETHELESS REMAINS
HIGHLY RELEVANT IN DETERMINING THE SCOPE OF THE EXEMPTION, AND THE
ABSENCE OF ANY SIGNIFICANT RISK OF DOUBLE TAXATION UNDER STATE SALES
AND USE TAXES GENERALLY IS THEREFORE STRONG EVIDENCE OF CONGRESSIONAL
INTENT NOT TO INCLUDE THEM IN SEC. 514. 

THE LANGUAGE OF SEC. 514 DOES NOT UNDERCUT OUR CONCLUSION THAT
CONGRESS DID NOT PROPOSE TO EXEMPT SERVICEMEN FROM SALES AND USE
TAXES.  THE APPELLEES, LIKE THE COURTS BELOW, MAKE MUCH OF THE
REFERENCE AT TWO PLACES IN THE SECTION TO PROPERTY "OR THE USE
THEREOF."  THIS PHRASE FIRST APPEARED IN THE 1944 ADDITION OF
SUBSECTION (2)(B): 

     "WHEN USED IN THIS SECTION, . . . (B) THE TERM 'TAXATION'

  SHALL INCLUDE BUT NOT BE LIMITED TO LICENSES, FEES, OR EXCISES

  IMPOSED IN RESPECT TO MOTOR VEHICLES OR THE USE THEREOF:

  PROVIDED, THAT THE LICENSE, FEE, OR EXCISE REQUIRED BY THE STATE

  . . . OF WHICH THE PERSON IS A RESIDENT OR IN WHICH HE IS

  DOMICILED HAS BEEN PAID." 

THE SECOND REFERENCE TO "USE" DID NOT APPEAR UNTIL THE ADDITION TO
SUBSECTION (1) OF THE FOLLOWING SENTENCE IN 1962: 

"WHERE THE OWNER OF PERSONAL PROPERTY IS ABSENT FROM HIS RESIDENCE
OR DOMICILE SOLELY BY REASON OF COMPLIANCE WITH MILITARY OR NAVAL
ORDERS, THIS SECTION APPLIES WITH RESPECT TO PERSONAL PROPERTY, OR THE
USE THEREOF, WITHIN ANY TAX JURISDICTION OTHER THAN SUCH PLACE OF
RESIDENCE OR DOMICILE, REGARDLESS OF WHERE THE OWNER MAY BE SERVING IN
COMPLIANCE WITH SUCH ORDERS . . . . " 

WE THINK THAT, IN LIGHT OF THE CLEAR INDICATIONS OF CONGRESSIONAL
INTENT DISCUSSED ABOVE, THE MOST SENSIBLE INFERENCE TO BE DRAWN FROM
THIS LANGUAGE IS THAT THE ONLY TAXES ON THE USE OF PROPERTY FROM WHICH
SERVICEMEN ARE EXEMPTED ARE THE SPECIAL REGISTRATION TAXES IMPOSED
ANNUALLY BY ALL STATES ON THE USE OF MOTOR VEHICLES.  INDEED, THIS
INTERPRETATION IS SUPPORTED BY THE STRUCTURE OF SEC. 514 ITSELF.  THERE
IS NO REFERENCE TO "USE" OF PROPERTY IN THOSE PORTIONS OF SUBSECTION
(1) WHICH SET OUT THE BASIC EXEMPTION AND IN WHICH CONGRESS WOULD
NATURALLY HAVE BEEN EXPECTED TO MENTION USE TAXES HAD IT MEANT TO
INCLUDE THEM.  MOREOVER, SUBSECTION (2)(B) DOES NOT SAY THAT FOR
PURPOSES OF SEC. 514 "TAXATION" INCLUDES "LICENSES, FEES, OR EXCISES"
ON THE USE OF ALL PERSONAL PROPERTY EXCEPT THOSE IN RESPECT OF MOTOR
VEHICLES FOR WHICH SUCH FEES HAVE NOT BEEN PAID AT HOME.  RATHER IT
SAYS THAT "TAXATION" INCLUDES SUCH LEVIES ONLY ON MOTOR VEHICLES WHEN
THEY HAVE BEEN PAID AT HOME.  THUS, AS WE HELD IN CALIFORNIA V. BUZARD,
382 U.S. 386, SUBSECTION (2)(B) DOES NOT ENCOMPASS ORDINARY REVENUE
RAISING EXCISE OR USE TAXES, BUT IS LIMITED TO "THOSE TAXES WHICH ARE
ESSENTIAL TO THE FUNCTIONING OF THE HOST STATE'S LICENSING AND
REGISTRATION LAWS IN THEIR APPLICATION TO THE MOTOR VEHICLES OF
NONRESIDENT SERVICEMEN."  ID., AT 395.  THE COURT HELD IN BUZARD THAT
SEC. 514 EXEMPTED SERVICEMEN FROM THE CALIFORNIA TAX ON AUTOMOBILES,
NOT BECAUSE IT WAS AN EXCISE TAX ON USE COVERED BY SUBSECTION (2)(B),
BUT RATHER BECAUSE IT WAS NOT SUCH A TAX.  /37/  THE SO-CALLED "LICENSE
FEE" THERE IN QUESTION WAS AN ANNUAL TAX IN THE AMOUNT OF 2% OF THE
ASSESSED MARKET VALUE OF THE CAR-- A LEVY WHICH WAS INDISTINGUISHABLE
FROM THE ANNUALLY RECURRING AD VALOREM TAXES THAT SEC. 514 WAS DESIGNED
TO COVER.  /38/     IT IS THUS EVIDENT THAT IN SUBSECTION (2)(B)
CONGRESS WAS DEALING SOLELY WITH A UNIQUE FORM OF STATE "TAX"-- THE
MOTOR VEHICLE REGISTRATION FEE.  BECAUSE SUCH FEES ARE NOT ALWAYS
CLEARLY CLASSIFIABLE AS PROPERTY TAXES, /39/  SERVICEMEN WOULD NOT BE
EXEMPTED FROM MANY OF THEM BY SUBSECTION (1) OF SEC. 514.  SINCE
ANNUALLY RECURRING LICENSE FEES RAISE MUCH THE SAME RISK OF DOUBLE
TAXATION TO TRANSITORY MILITARY PERSONNEL AS DO PROPERTY TAXES,
CONGRESS EVIDENTLY DECIDED IN 1944 TO EXTEND THE EXEMPTION OF SEC. 514
TO INCLUDE MOTOR VEHICLE REGISTRATION FEES AS WELL AS PROPERTY TAXES. 
FROM 1944 TO 1962 THE ONLY REFERENCE IN SEC. 514 TO "USE" OF PROPERTY
WAS FOUND IN SUBSECTION (2)(B).  AND, IN VIEW OF THE NARROW PURPOSE OF
THAT SUBSECTION AND THE ABSENCE FOR 20 YEARS OF ANY OTHER REFERENCE TO
"USE" IN SEC. 514, WE CANNOT BELIEVE THE REPETITION OF THAT WORD IN THE
1962 AMENDMENT-- DESCRIBED BY CONGRESS AS A MERE CLARIFICATION OF THE
EXISTING LAW /40/  -- CAN BE DEEMED TO HAVE ADDED ALL USE TAXES TO THE
COVERAGE OF THE STATUTE.  THE 1962 AMENDMENT MERELY REFLECTED THE PRIOR
REFERENCE TO THE "USE" OF MOTOR VEHICLES IN SUBSECTION (2)(B). 

FINALLY, WE FIND UNPERSUASIVE THE APPELLEES' CONTENTION THAT, SINCE
THE CONNECTICUT USE TAX CAN BE APPLIED ONLY WITH RESPECT TO PERSONAL
PROPERTY USED WITHIN THE STATE, ITS IMPOSITION ON SERVICEMEN AWAY FROM
HOME CANNOT BE SQUARED WITH THE DECLARATION OF SEC. 514 THAT "PERSONAL
PROPERTY SHALL NOT BE DEEMED TO BE LOCATED OR PRESENT IN OR TO HAVE A
SITUS FOR TAXATION IN SUCH STATE."  THAT CLAUSE IS MODIFIED BY THE
OPENING WORDS OF THE SENTENCE-- "(FOR THE PURPOSES OF TAXATION IN
RESPECT OF THE PERSONAL PROPERTY."  SECTION 514, THEREFORE, DOES NOT IN
TERMS RELIEVE SERVICEMEN FROM EVERY STATE TAX WHICH IS SOMEHOW
DEPENDENT ON THE PRESENCE OF PERSONAL PROPERTY WITHIN THE STATE. 
RATHER, IT PROVIDES ONLY THAT A STATE CANNOT JUSTIFY IMPOSING THE TAXES
TO WHICH SEC. 514 WAS INITIALLY INTENDED TO APPLY-- ANNUALLY RECURRING
AD VALOREM PROPERTY TAXES-- ON THE GROUND OF THE PROPERTY'S PRESENCE
WITHIN THE STATE. 

THIS CONSTRUCTION IS CONFIRMED BY THE EXPLANATION WHICH CONGRESS
ITSELF GAVE FOR THE ADDITION IN 1944 OF THE LANGUAGE ON WHICH THE
APPELLEES RELY: 

     "THE PURPOSE OF THE PROPOSED LEGISLATION IS TO CLARIFY THE

  INTENT OF SECTION 514 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF

  ACT.  . . . WHEN THAT PROVISION OF LAW WAS ADDED TO THE ACT TO

  RELIEVE PERSONS IN SERVICE FROM LIABILITY OF DOUBLE TAXATION BY

  BEING MOVED FROM ONE STATE TO ANOTHER UNDER ORDERS, IT WAS

  INTENDED THAT IT SHOULD APPLY TO PERSONAL-PROPERTY TAXES AS WELL

AS TO INCOME TAXES.  AS PRESENTLY CONSTITUTED, IT PRIMARILY

  AFFECTS TAXES IN RESPECT TO INCOME AND OTHER TAXES BASED ON

  RESIDENCE OR DOMICILE, BUT IT DOES NOT PREVENT THE STATE OF

  'TEMPORARY RESIDENCE' FROM TAXING TANGIBLE PERSONAL PROPERTY

  ACTUALLY LOCATED IN SUCH STATE SO LONG AS THE TAX DOES NOT DEPEND

  ON RESIDENCE OR DOMICILE.  A FEW STATES HAVE TAKEN THE POSITION

  THAT TANGIBLE PERSONAL PROPERTY OF MILITARY PERSONNEL WHO ARE

  ONLY TEMPORARILY WITHIN THEIR JURISDICTION DOES NOT ACQUIRE A

  SITUS FOR TAXATION, BUT IT HAS BEEN HELD THAT SECTION 514 OF THE

  ACT AS NOW WRITTEN DOES NOT AFFECT THE RIGHT OF A STATE TO ASSESS

  PERSONAL-PROPERTY TAXES ON PROPERTY WITHIN ITS JURISDICTION." 

  /41/ 

THE 1944 AMENDMENT, THEREFORE, HAD ONLY THE LIMITED PURPOSE "TO
CLARIFY" CONGRESS' ORIGINAL INTENT TO COVER "PERSONAL-PROPERTY TAXES ON
PROPERTY," NOT TO EXPAND THE EXEMPTION IN A MANNER WHICH WOULD INCLUDE
SALES OR USE TAXES. 

FOR THESE REASONS WE HOLD THAT SEC. 514 OF THE SOLDIERS' AND
SAILORS' CIVIL RELIEF ACT DOES NOT EXEMPT SERVICEMEN FROM THE SALES AND
USE TAXES IMPOSED BY CONNECTICUT.  ACCORDINGLY, THE JUDGMENT IS

              REVERSED. 

/1/  AS ADDED BY SEC. 17 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF
ACT AMENDMENTS OF 1942, 56 STAT. 777, AND AS AMENDED, 58 STAT. 722, 76
STAT. 768, 50 U.S.C. APP. 574. 

/2/  ALTHOUGH THE ISSUE WAS RAISED IN THE DISTRICT COURT, THE
APPELLANTS NO LONGER DISPUTE THE RIGHT OF THE UNITED STATES TO BRING
THIS ACTION ON BEHALF OF THE SERVICEMEN IN FEDERAL COURT.  SEE
DEPARTMENT OF EMPLOYMENT V. UNITED STATES, 385 U.S. 355, 358; UNITED
STATES V. ARLINGTON COUNTY, 326 F.2D 929. 

IN THIS COURT THE UNITED STATES HAS PRESENTED ARGUMENTS PREPARED BY
OFFICERS OF THE DEPARTMENT OF JUSTICE IN SUPPORT OF THE JUDGMENT
BELOW.  THE SOLICITOR GENERAL AND THE ASSISTANT ATTORNEY GENERAL IN
CHARGE OF THE TAX DIVISION OF THE DEPARTMENT OF JUSTICE HAVE INFORMED
THE COURT, HOWEVER, THAT THEY HAVE NOT BEEN PERSUADED BY THOSE
ARGUMENTS, AND THAT THEY DO NOT BELIEVE THAT SEC. 514 WAS INTENDED TO
APPLY TO THE ORDINARY RETAIL SALES TAX AND CONCOMITANT USE TAX NOW
IMPOSED BY MOST OF THE STATES.  FOR OTHER EXAMPLES OF SUCH DIVERGENCE
OF OPINION AMONG REPRESENTATIVES OF THE UNITED STATES BEFORE THIS
COURT, SEE DELAVAL STEAM TURBINE CO. V. UNITED STATES, 284 U.S. 61, 67
68; KORNHAUSER V. UNITED STATES, 276 U.S. 145, 147-151. 

/3/  270 F.SUPP.  236.  THE DISTRICT COURT LATER AMENDED ITS
JUDGMENT TO PERMIT CONNECTICUT TO CONTINUE TO COLLECT SALES AND USE
TAXES FROM NONRESIDENT SERVICEMEN, PROVIDED THAT THE AMOUNTS COLLECTED
WOULD BE REFUNDED IF THE JUDGMENT WAS ULTIMATELY SUSTAINED. 

/4/  398 F.2D 672. 

/5/  393 U.S. 1012. 

/6/  CONN. GEN. STAT. REV. SECS. 12-406 TO 12-432A. 

/7/  SEE J. HELLERSTEIN, STATE AND LOCAL TAXATION CASES AND MATERIALS
15 (3D ED. 1969).  35 STATES HAVE FILED BRIEFS IN THIS CASE IN SUPPORT
OF THE POSITION OF CONNECTICUT. 

/8/  SEC. 12-408(1).  THIS SECTION ALSO IMPOSES THE SALES TAX ON
"THE PRIVILEGE OF . . . TRANSFERRING OCCUPANCY OF ANY ROOM OR ROOMS IN
A HOTEL OR LODGING HOUSE." 

/9/  SEC. 12-408(2). 

/10/  SEC. 12-411(1). 

/11/  SEE, E.G., STETSON V. SULLIVAN, 152 CONN. 649, 652-653, 211
A.2D 685, 686; AVCO MFG. CORP. V. CONNELLY, 145 CONN. 161, 170-171, 140
A.2D 479, 484; CONNECTICUT LIGHT & POWER CO. V. WALSH, 134 CONN. 295,
299-300, 57 A.2D 128, 130-131. 

/12/  SEC. 12-413(1). 

/13/  SECS. 12-411(2),(3). 

/14/  SEC. 12-431. 

/15/  SEC. 12-430(5). 

/16/  SEC. 12-432. 

/17/  LIEUTENANT SCHUMAN JOINED THE UNITED STATES AS A PARTY
PLAINTIFF IN THE DISTRICT COURT, SEEKING TO REPRESENT THE CLASS OF ALL
SERVICEMEN OR FORMER SERVICEMEN FROM WHOM CONNECTICUT HAD COLLECTED OR
THREATENED TO COLLECT ANY SALES OR USE TAX.  THE COMPLAINT WAS
DISMISSED AS TO HIM FOR LACK OF JURISDICTION, ON THE GROUNDS THAT THE
REQUISITE JURISDICTIONAL AMOUNT WAS NOT ALLEGED TO BE IN CONTROVERSY
AND THAT THE ELEVENTH AMENDMENT FORBIDS A SUIT BY A PRIVATE INDIVIDUAL
AGAINST A STATE IN THE FEDERAL COURTS.  270 F.SUPP.  236, 246-247. 

/18/  FOSTER'S SITUATION IS NOT ENTIRELY CLEAR.  HIS AFFIDAVIT
STATES THAT OFFICIALS OF THE CONNECTICUT DEPARTMENT OF MOTOR VEHICLES
INFORMED HIM THAT HE WAS REQUIRED TO PAY A USE TAX BUT THE TAX ACTUALLY
PAID WAS IDENTIFIED ON THE DEALER'S INVOICE AS A SALES TAX.  THE LATTER
SEEMS TO BE CORRECT, SINCE THE PURCHASE WAS FROM A CONNECTICUT
RETAILER.  TEXAS OFFICIALS TOLD FOSTER HE WOULD HAVE TO PAY A SALES TAX
IN ORDER TO REGISTER THE CAR IN THAT STATE.  THE TEXAS TAX COLLECTOR'S
RECEIPT DOES NOT IDENTIFY WHETHER THE PAYMENT WAS A SALES OR USE TAX,
HOWEVER, AND UNDER THE TEXAS STATUTES IT APPEARS MORE LIKELY THAT IT
WAS THE LATTER.  TEX. REV. CIV. STAT., ART. 6.01, PROVIDES THAT THE
MOTOR VEHICLE SALES TAX APPLIES ONLY TO SALES IN THE STATE, WHILE THE
USE TAX, IN THE SAME AMOUNT, APPLIES TO OUT-OF-STATE SALES OF MOTOR
VEHICLES FOR USE IN TEXAS. 

/19/  56 STAT. 777. 

/20/  THE WORD "PERSONAL" WAS INTERPOLATED BY THE 1944 AMENDMENT. 
58 STAT. 722. 

/21/  76 STAT. 768. 

/22/  SECTION 514, AS SET FORTH IN 50 U.S.C. APP. 574, NOW READS IN
ITS ENTIRETY AS FOLLOWS: 

"(1) FOR THE PURPOSES OF TAXATION IN RESPECT OF ANY PERSON, OR OF
HIS PERSONAL PROPERTY, INCOME, OR GROSS INCOME, BY ANY STATE,
TERRITORY, POSSESSION, OR POLITICAL SUBDIVISION OF ANY OF THE
FOREGOING, OR BY THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL NOT BE
DEEMED TO HAVE LOST A RESIDENCE OR DOMICILE IN ANY STATE, TERRITORY,
POSSESSION, OR POLITICAL SUBDIVISION OF ANY OF THE FOREGOING, OR IN THE
DISTRICT OF COLUMBIA, SOLELY BY REASON OF BEING ABSENT THEREFROM IN
COMPLIANCE WITH MILITARY OR NAVAL ORDERS, OR TO HAVE ACQUIRED A
RESIDENCE OR DOMICILE IN, OR TO HAVE BECOME RESIDENT IN OR A RESIDENT
OF, ANY OTHER STATE, TERRITORY, POSSESSION, OR POLITICAL SUBDIVISION OF
ANY OF THE FOREGOING, OR THE DISTRICT OF COLUMBIA, WHILE, AND SOLELY BY
REASON OF BEING, SO ABSENT.  FOR THE PURPOSES OF TAXATION IN RESPECT OF
THE PERSONAL PROPERTY, INCOME, OR GROSS INCOME OF ANY SUCH PERSON BY
ANY STATE, TERRITORY, POSSESSION, OR POLITICAL SUBDIVISION OF ANY OF
THE FOREGOING, OR THE DISTRICT OF COLUMBIA, OF WHICH SUCH PERSON IS NOT
A RESIDENT OR IN WHICH HE IS NOT DOMICILED, COMPENSATION FOR MILITARY
OR NAVAL SERVICE SHALL NOT BE DEEMED INCOME FOR SERVICES PERFORMED
WITHIN, OR FROM SOURCES WITHIN, SUCH STATE, TERRITORY, POSSESSION,
POLITICAL SUBDIVISION, OR DISTRICT, AND PERSONAL PROPERTY SHALL NOT BE
DEEMED TO BE LOCATED OR PRESENT IN OR TO HAVE A SITUS FOR TAXATION IN
SUCH STATE, TERRITORY, POSSESSION, OR POLITICAL SUBDIVISION, OR
DISTRICT.  WHERE THE OWNER OF PERSONAL PROPERTY IS ABSENT FROM HIS
RESIDENCE OR DOMICILE SOLELY BY REASON OF COMPLIANCE WITH MILITARY OR
NAVAL ORDERS, THIS SECTION APPLIES WITH RESPECT TO PERSONAL PROPERTY,
OR THE USE THEREOF, WITHIN ANY TAX JURISDICTION OTHER THAN SUCH PLACE
OF RESIDENCE OR DOMICILE, REGARDLESS OF WHERE THE OWNER MAY BE SERVING
IN COMPLIANCE WITH SUCH ORDERS:  PROVIDED, THAT NOTHING CONTAINED IN
THIS SECTION SHALL PREVENT TAXATION BY ANY STATE, TERRITORY,
POSSESSION, OR POLITICAL SUBDIVISION OF ANY OF THE FOREGOING, OR THE
DISTRICT OF COLUMBIA IN RESPECT OF PERSONAL PROPERTY USED IN OR ARISING
FROM A TRADE OR BUSINESS, IF IT OTHERWISE HAS JURISDICTION.  THIS
SHALL NOT REQUIRE THE CREDITING OR REFUNDING OF ANY TAX PAID PRIOR TO
OCTOBER 6, 1942. 

"(2) WHEN USED IN THIS SECTION, (A) THE TERM 'PERSONAL PROPERTY'
SHALL INCLUDE TANGIBLE AND INTANGIBLE PROPERTY (INCLUDING MOTOR
VEHICLES), AND (B) THE TERM 'TAXATION' SHALL INCLUDE BUT NOT BE LIMITED
TO LICENSES, FEES, OR EXCISES IMPOSED IN RESPECT TO MOTOR VEHICLES OR
THE USE THEREOF:  PROVIDED, THAT THE LICENSE, FEE, OR EXCISE REQUIRED
BY THE STATE, TERRITORY, POSSESSION, OR DISTRICT OF COLUMBIA OF WHICH
THE PERSON IS A RESIDENT OR IN WHICH HE IS DOMICILED HAS BEEN PAID." 

/23/  SEE, E.G., N. JACOBY, RETAIL SALES TAXATION 3-4 (1938).  AND
SEE N. 28, INFRA. 

/24/  THE CONNECTICUT STATUTE DEFINES A "SALE" GENERALLY AS "(ANY
TRANSFER OF TITLE . . . FOR A CONSIDERATION."  SEC. 12-407(2)(A).  AND
SEE AVCO MFG. CORP. V. CONNELLY, 145 CONN. 161, 172, 140 A.2D 479, 484
485.  THE TERM ALSO INCLUDES A TRANSACTION IN WHICH THE RIGHT OF
POSSESSION IS TRANSFERRED BUT THE SELLER RETAINS TITLE AS SECURITY. 
SEC. 12-407(2)(F). 

/25/  SEE CONN. GEN. STAT. REV. SEC. 42A-2-401(3). 

/26/  S. REP. NO. 1558, 77TH CONG.,2D SESS., 11 (1942); H.R. REP.
NO. 2198, 77TH CONG.,2D SESS., 6 (1942). 

/27/  S. REP. NO. 959, 78TH CONG.,2D SESS., 1 (1944).  SEE ALSO THE
REFERENCE TO "PERSONAL PROPERTY TAXES" IN H.R. REP. NO. 1514, 78TH
CONG.,2D SESS., 2 (1944).  THE REPORTS ON THE 1942 ACT TALKED ABOUT
"TAXATION OF THE PROPERTY" AND THE POSSIBILITY THAT "THE PERSONAL
PROPERTY . . . MAY BECOME LIABLE FOR TAXES IN SEVERAL STATES."  S. REP.
NO. 1558, SUPRA, N. 26, AT 11; H.R. REP. NO. 2198, SUPRA, N. 26, AT 6. 
AT THE TIME OF THE 1962 AMENDMENT, THE REPORTS CONTINUED TO DESCRIBE
THE TAXES COVERED BY SEC. 514 AS THOSE "IMPOSED UPON PROPERTY OF A
SERVICEMAN."  S. REP. NO. 2182, 87TH CONG.,2D SESS., 1 (1962); H.R.
REP. NO. 2126, 87TH CONG.,2D SESS., 1 (1962). 

/28/  IT HAS FREQUENTLY BEEN SAID THAT A USE TAX, LIKE A SALES TAX,
IS AN EXCISE OR PRIVILEGE TAX DIFFERENT IN KIND FROM A TAX ON
PROPERTY.  E.G., MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, 93; BOWMAN
V. CONTINENTAL OIL CO., 256 U.S. 642, 649.  AS THE CONNECTICUT SUPREME
COURT HAS DESCRIBED THE VERY TAX HERE IN QUESTION, "THE USE TAX IS NOT
A TAX ON PROPERTY BUT IS DESCRIBED IN THE ACT AS, AND IN FACT IS, IN
THE NATURE OF AN EXCISE TAX UPON THE PRIVILEGE OF USING, STORING OR
CONSUMING PROPERTY."  CONNECTICUT LIGHT & POWER CO. V. WALSH, 134 CONN.
295, 307, 57 A.2D 128, 134.  THIS DISTINCTION MAY SOMETIMES BE MORE
FORMAL THAN ACTUAL, CF. HENNEFORD V. SILAS MASON CO., 300 U.S. 577,
582, 586.  BUT ITS LONG-TIME GENERAL ACCEPTANCE SUPPORTS THE CONCLUSION
THAT WHEN CONGRESS TALKED ABOUT TAXES ON, OR EVEN "IN RESPECT OF,"
PERSONAL PROPERTY, IT DID NOT THEREBY INCLUDE USE TAXES. 

THIS CONCLUSION IS FURTHER BUTTRESSED BY THE CLOSE INTERCONNECTION
OF SALES AND USE TAXES.  SEE GENERALLY 3 STATE TAXATION OF INTERSTATE
COMMERCE, H.R.REP.NO. 565, 89TH CONG.,1ST SESS., 607-620 (1965).  AS A
COMPLEMENT TO THE SALES TAX AND AN INTEGRAL PART OF A SINGLE BROAD
PATTERN OF EXCISE TAXES, THE USE TAX IS NOT LIKELY TO HAVE BEEN GROUPED
BY CONGRESS WITH TAXES "IN RESPECT OF THE PERSONAL PROPERTY." 

/29/  BY 1938, MORE THAN HALF THE STATES HAD ADOPTED SALES AND USE
TAXES.  SEE 3 STATE TAXATION OF INTERSTATE COMMERCE, SUPRA, N. 28, AT
609. 

/30/  54 STAT. 1059, NOW 4 U.S.C. 105-110. 

/31/  4 U.S.C. 105(A) STATES: 

"NO PERSON SHALL BE RELIEVED FROM LIABILITY FOR PAYMENT OF,
COLLECTION OF, OR ACCOUNTING FOR ANY SALES OR USE TAX LEVIED BY ANY
STATE, OR BY ANY DULY CONSTITUTED TAXING AUTHORITY THEREIN, HAVING
JURISDICTION TO LEVY SUCH A TAX, ON THE GROUND THAT THE SALE OR USE,
WITH RESPECT TO WHICH SUCH TAX IS LEVIED, OCCURRED IN WHOLE OR IN PART
WITHIN A FEDERAL AREA; AND SUCH STATE OR TAXING AUTHORITY SHALL HAVE
FULL JURISDICTION AND POWER TO LEVY AND COLLECT ANY SUCH TAX IN ANY
FEDERAL AREA WITHIN SUCH STATE TO THE SAME EXTENT AND WITH THE SAME
EFFECT AS THOUGH SUCH AREA WAS NOT A FEDERAL AREA."     /32/  4 U.S.C.
107 STATES: 

"(A) THE PROVISIONS OF SECTIONS 105 AND 106 OF THIS TITLE SHALL NOT
BE DEEMED TO AUTHORIZE THE LEVY OR COLLECTION OF ANY TAX ON OR FROM THE
UNITED STATES OR ANY INSTRUMENTALITY THEREOF, OR THE LEVY OR COLLECTION
OF ANY TAX WITH RESPECT TO SALE, PURCHASE, STORAGE, OR USE OF TANGIBLE
PERSONAL PROPERTY SOLD BY THE UNITED STATES OR ANY INSTRUMENTALITY
THEREOF TO ANY AUTHORIZED PURCHASER. 

"(B) A PERSON SHALL BE DEEMED TO BE AN AUTHORIZED PURCHASER UNDER
THIS SECTION ONLY WITH RESPECT TO PURCHASES WHICH HE IS PERMITTED TO
MAKE FROM COMMISSARIES, SHIP'S STORES, OR VOLUNTARY UNINCORPORATED
ORGANIZATIONS OF PERSONNEL OF ANY BRANCH OF THE ARMED FORCES OF THE
UNITED STATES, UNDER REGULATIONS PROMULGATED BY THE DEPARTMENTAL
SECRETARY HAVING JURISDICTION OVER SUCH BRANCH." 

/33/  THE STIPULATION FILED IN THE DISTRICT COURT CONTAINED THE
FOLLOWING: 

"11.  MOST OF THE DAY-TO-DAY PURCHASES OF TANGIBLE PERSONAL
PROPERTY, WHICH INCLUDES FOOD, CLOTHING, TOILET ARTICLES AND OTHER
PERSONAL ITEMS, MADE BY SERVICEMEN IN CONNECTICUT ARE MADE FROM
MILITARY EXCHANGES, AND COMMISSARIES OPERATED BY THE ARMED SERVICES ON
MILITARY INSTALLATIONS. 

"12.  SALES MADE BY MILITARY EXCHANGES AND COMMISSARIES OPERATED BY
THE ARMED SERVICES ON MILITARY INSTALLATIONS TO SERVICEMEN ARE NOT
SUBJECT TO ANY TAX UNDER THE TAX ACT." 

/34/  CONVERSELY, THE ADMINISTRATIVE BURDEN WHICH THE STATES WOULD
HAVE TO SHOULDER IF SEC. 514 APPLIED TO SALES AND USE TAXES IS
POTENTIALLY FAR GREATER THAN THAT ATTRIBUTABLE TO THE EXEMPTION FROM AD
VALOREM PROPERTY TAXES.  WHEREAS PROPERTY TAXATION INVOLVES ONLY THE
PROPERTY OWNER AND THE TAX OFFICIALS, SALES AND USE TAXATION USUALLY
REQUIRES PARTICIPATION AND ACCOUNTING BY THE SELLER AS WELL.  AND THE
ACCOUNTING DIFFICULTIES WHICH RETAILERS AND THE STATES WOULD ENCOUNTER
IN DETERMINING FOR THOUSANDS OF TRANSACTIONS WHICH CUSTOMERS WERE
PROPERLY EXEMPT UNDER SEC. 514 ARE CONSIDERABLY GREATER THAN ANY THAT
CONGRESS CAN BE THOUGHT TO HAVE ENVISIONED FOR THE EXEMPTION FROM
PROPERTY TAXES ALONE. 

/35/  S. REP. NO. 1558, SUPRA, N. 26, AT 11; H.R. REP. NO. 1298,
SUPRA, N. 26, AT 6.  THIS PURPOSE WAS RESTATED IN THE 1944 REPORTS:
"WHEN THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940 WAS AMENDED
BY THE ACT OF OCTOBER 6, 1942, A PROVISION WAS WRITTEN INTO THE ACT TO
RELIEVE PERSONS IN THE SERVICE FROM LIABILITY OF DOUBLE TAXATION BY
BEING MOVED FROM ONE STATE TO ANOTHER UNDER ORDERS."  H.R. REP. NO.
1514, SUPRA, N. 27, AT 2.  AND SEE S. REP. NO. 959, SUPRA, N. 27, AT
1. 

/36/  SEE PRENTICE-HALL STATE AND LOCAL TAX SERVICE, ALL STATES
UNIT, PARA. 92,963. 

/37/  SEE ALSO SNAPP V. NEAL, 382 U.S. 397, 398: "WE REVERSE ON THE
AUTHORITY OF OUR HOLDING TODAY IN BUZARD THAT THE FAILURE TO PAY THE
MOTOR VEHICLE 'LICENSE, FEE, OR EXCISE' OF THE HOME STATE ENTITLES THE
HOST STATE ONLY TO EXACT MOTOR VEHICLE TAXES QUALIFYING AS 'LICENSES,
FEES, OR EXCISES'; THE AD VALOREM TAX, AS THE MISSISSIPPI SUPREME COURT
ACKNOWLEDGED, IS NOT SUCH AN EXACTION." 

/38/  INDEED, THE COURT IN BUZARD EMPHASIZED THAT THE TAX HAD BEEN
ADOPTED BY CALIFORNIA "AS A SUBSTITUTE FOR LOCAL AD VALOREM TAXATION OF
AUTOMOBILES."  382 U.S.,AT 395, N. 9.  CALIFORNIA'S SALES AND USE TAXES
WERE NOT INVOLVED IN THAT CASE. 

/39/  SEE CALIFORNIA V. BUZARD, 382 U.S.,AT 394, N. 8, FOR THE
VARIOUS METHODS BY WHICH STATES IMPOSE REGISTRATION OR LICENSE FEES ON
MOTOR VEHICLES. 

/40/  "THIS BILL AMENDS THE TAX IMMUNITY PROVISIONS OF THE SOLDIERS'
AND SAILORS' CIVIL RELIEF ACT . . . SO AS TO CLARIFY A SITUATION WHICH
SOMETIMES RESULTS IN TAXATION CONTRARY TO THE INTENT OF THE ACT.  MORE
SPECIFICALLY, THE BILL PROVIDES THAT WHERE A SERVICEMAN IS ABSENT FROM
HIS RESIDENCE OR DOMICILE SOLELY BY REASON OF COMPLIANCE WITH MILITARY
OR NAVAL ORDERS, THE TAX IMMUNITY PROVISION OF EXISTING LAW SHALL APPLY
WITH RESPECT TO HIS PERSONAL PROPERTY, OR THE USE THEREOF, WITHIN ANY
TAX JURISDICTION OTHER THAN HIS STATE OF RESIDENCE OR DOMICILE,
REGARDLESS OF WHERE SUCH SERVICEMAN MAY BE LOCATED IN COMPLIANCE WITH
SUCH ORDERS."  S. REP. NO. 2182, SUPRA, N. 27, AT 1. 

/41/  S. REP. NO. 959, SUPRA, N. 27, AT 1. 

F. MICHAEL AHERN, ASSISTANT ATTORNEY GENERAL OF CONNECTICUT, ARGUED
THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS WERE ROBERT K.
KILLIAN, ATTORNEY GENERAL, AND RALPH G. MURPHY AND RICHARD A. GITLIN,
ASSISTANT ATTORNEYS GENERAL. 

HARRIS WEINSTEIN ARGUED THE CAUSE FOR THE UNITED STATES ET AL. WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WALTERS, AND STUART A. SMITH. 

BRIEFS OF AMICI CURIAE IN SUPPORT OF APPELLANTS WERE FILED BY THE
STATE OF LOUISIANA AND BY THE ATTORNEYS GENERAL FOR THEIR RESPECTIVE
STATES AS FOLLOWS:  MACDONALD GALLION OF ALABAMA, DUKE W. DUNBAR OF
COLORADO, ROBERT K. KILLIAN OF CONNECTICUT, EARL FAIRCLOTH OF FLORIDA,
ARTHUR K. BOLTON OF GEORGIA, KENT FRIZZELL OF KANSAS, JOHN B.
BRECKINRIDGE OF KENTUCKY, JAMES S. ERWIN OF MAINE, FRANCIS B. BURCH OF
MARYLAND, ROBERT H. QUINN OF MASSACHUSETTS, FRANK J. KELLEY OF
MICHIGAN, DOUGLAS M. HEAD OF MINNESOTA, JOHN C. DANFORTH OF MISSOURI,
CLARENCE A. H. MEYER OF NEBRASKA, HARVEY DICKERSON OF NEVADA, ARTHUR J.
SILLS OF NEW JERSEY, ROBERT B. MORGAN OF NORTH CAROLINA, HELGI
JOHANNESON OF NORTH DAKOTA, PAUL W. BROWN OF OHIO, G. T. BLANKENSHIP OF
OKLAHOMA, ROBERT Y. THORNTON OF OREGON, WILLIAM C. SENNETT OF
PENNSYLVANIA, HERBERT F. DESIMONE OF RHODE ISLAND, GORDON MYDLAND OF
SOUTH DAKOTA, GEORGE F. MCCANLESS OF TENNESSEE, CRAWFORD C. MARTIN OF
TEXAS, VERNON B. ROMNEY, JR., OF UTAH, ROBERT Y. BUTTON OF VIRGINIA,
SLADE GORTON OF WASHINGTON, AND JAMES E. BARRETT OF WYOMING; BY GARY K.
NELSON, ATTORNEY GENERAL, FOR THE STATE OF ARIZONA; BY THOMAS C. LYNCH,
ATTORNEY GENERAL, ERNEST P. GOODMAN, ASSISTANT ATTORNEY GENERAL, AND
PHILIP W. MARKING, DEPUTY ATTORNEY GENERAL, FOR THE STATE OF
CALIFORNIA, AND WILLIAM J. SCOTT, ATTORNEY GENERAL, FOR THE STATE OF
ILLINOIS; AND BY LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, RUTH KESSLER
TOCH, SOLICITOR GENERAL, AND ROBERT W. BUSH, ASSISTANT ATTORNEY
GENERAL, FOR THE STATE OF NEW YORK. 

BENJAMIN M. WALL FILED A BRIEF FOR STANLEY FISSEL AS AMICUS CURIAE
IN SUPPORT OF THE UNITED STATES ET AL.
..END :






MCKART V. UNITED STATES, 395 U.S. 185 


       MCKART V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 403.  ARGUED FEBRUARY 27, 1969.-- DECIDED MAY 26,
1969. 


PETITIONER HAD BEEN CLASSIFIED IV-A (SOLE SURVIVING SON STATUS). 
WHEN THE SELECTIVE SERVICE BOARD LEARNED OF THE DEATH OF PETITIONER'S
MOTHER, IT RECLASSIFIED HIM I-A (AVAILABLE FOR MILITARY SERVICE), ON
THE THEORY THAT THE IV-A CLASSIFICATION BECAME IMPROPER WHEN THE
"FAMILY UNITE" CEASED TO EXIST.  PETITIONER DID NOT APPEAL THE
RECLASSIFICATION.  UPON HIS FAILURE TO REPORT AS ORDERED FOR HIS PRE
INDUCTION PHYSICAL EXAMINATION, HE WAS DECLARED A DELINQUENT.  HE
FAILED TO REPORT FOR INDUCTION AS ORDERED AND WAS INDICTED FOR SUCH
FAILURE AND TRIED.  HIS ONLY DEFENSE WAS THAT HE WAS IMPROPERLY DENIED
A SOLE SURVIVING SON EXEMPTION.  THE DISTRICT COURT HELD THAT DEFENSE
UNAVAILABLE BECAUSE PETITIONER HAD FAILED TO EXHAUST THE ADMINISTRATIVE
REMEDIES PROVIDED BY THE SELECTIVE SERVICE SYSTEM.  PETITIONER WAS
CONVICTED AND THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  PETITIONER WAS ENTITLED TO EXEMPTION FROM MILITARY SERVICE, AS
THE TERMINATION OF THE "FAMILY UNIT" WAS NOT INTENDED BY CONGRESS TO
WARRANT ENDING THE SOLE SURVIVING SON EXEMPTION UNDER SEC. 6(O) OF THE
SELECTIVE SERBICE ACT.  PP. 189-192. 

2.  PETITIONER'S FAILURE TO APPEAL HIS CLASSIFICATION AND HIS
FAILURE TO REPORT FOR A PRE-INDUCTION PHYSICAL EXAMINATION DO NOT
FORECLOSE HIS CHALLENGING THE VALIDITY OF HIS CLASSIFICATION AS A
DEFENSE TO CRIMINAL PROSECUTION FOR REFUSAL TO SUBMIT TO INDUCTION. 
PP. 192-203. 

(A) THOUGH THE DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES IS
APPLIED IN A NUMBER OF DIFFERENT SITUATIONS, IT IS SUBJECT TO NUMEROUS
EXCEPTIONS.  P. 193. 

(B) THE EXHAUSTION DOCTRINE MUST BE TAILORED TO FIT THE
PECULIARITIES OF THE ADMINISTRATIVE SYSTEM CONGRESS CREATED.  AT THE
HEART OF THE SELECTIVE SERVICE SYSTEM ARE THE LOCAL BOARDS WHICH
REGISTER AND CLASSIFY THOSE SUBJECT TO THE SELECTIVE SERVICE LAWS, FROM
WHOSE ACTION THE REGISTRANT HAS THE RIGHT OF APPEAL.  P. 195. 

(C) ALTHOUGH THE ACT AS IT STOOD WHEN PETITIONER WAS TRIED PROVIDED
THAT LOCAL BOARD DECISIONS WERE "FINAL," A REGISTRANT CHARGED WITH
FAILURE TO REPORT CAN RAISE THE DEFENSE THAT THERE WAS "NO BASIS IN
FACT" FOR HIS CLASSIFICATION.  SEE ESTEP V. UNITED STATES, 327 U.S.
114, 123.  P. 196. 

(D) THIS CASE DOES NOT INVOLVE PREMATURE RESORT TO THE COURTS (SINCE
ALL ADMINISTRATIVE REMEDIES ARE NOW FORECLOSED), BUT FAILURE TO HAVE
UTILIZED THE PARTICULAR ADMINISTRATIVE PROCESS OF APPEAL.  PP. 196
197. 

(E) WHEN PETITIONER WAS RECLASSIFIED THE STATUTE DID NOT REQUIRE THE
REGISTRANT TO RAISE ALL HIS CLAIMS BEFORE AN APPEAL BOARD.  P. 197. 

(F) DETERMINING WHETHER PETITIONER IS ENTITLED TO THE SOLE SURVIVING
SON EXEMPTION (WHICH IS SOLELY A MATTER OF STATUTORY INTERPRETATION)
REQUIRES NO PARTICULAR EXPERTISE ON THE APPEAL BOARD'S PART AS MANY
SELECTIVE SERVICE QUESTIONS DO, AND JUDICIAL REVIEW WOULD NOT BE
SIGNIFICANTLY AIDED BY THAT KIND OF ADDITIONAL ADMINISTRATIVE
DECISION.  PP. 197-199. 

(G) FAILURE TO REQUIRE EXHAUSTION OF ADMINISTRATIVE REMEDIES IN THIS
CASE WILL NOT SIGNIFICANTLY ENCOURAGE REGISTRANTS TO BYPASS AVAILABLE
ADMINISTRATIVE REMEDIES AT THE RISK OF CRIMINAL PROSECUTION.  PP. 199
200. 

(H) PETITIONER IS NOT BEING PROSECUTED FOR HIS FAILURE TO REPORT FOR
PHYSICAL EXAMINATION AND SUCH FAILURE DOES NOT BAR HIM FROM CHALLENGING
THE VALIDITY OF HIS CLASSIFICATION AS A DEFENSE TO HIS CRIMINAL
PROSECUTION.  FALBO V. UNITED STATES, 320 U.S. 549, DISTINGUISHED.  PP.
201-203. 

395 F.2D 906, REV RSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS INDICTED FOR WILLFULLY AND KNOWINGLY FAILING TO
REPORT FOR AND SUBMIT TO INDUCTION INTO THE ARMED FORCES OF THE UNITED
STATES.  /1/  AT TRIAL, PETITIONER'S ONLY DEFENSE WAS THAT HE SHOULD
HAVE BEEN EXEMPT FROM MILITARY SERVICE BECAUSE HE WAS THE "SOLE
SURVIVING SON" OF A FAMILY WHOSE FATHER HAD BEEN KILLED IN ACTION WHILE
SERVING IN THE ARMED FORCES OF THE UNITED STATES.  /2/  THE DISTRICT
COURT HELD THAT HE COULD NOT RAISE THAT DEFENSE BECAUSE HE HAD FAILED
TO EXHAUST THE ADMINISTRATIVE REMEDIES PROVIDED BY THE SELECTIVE
SERVICE SYSTEM.  ACCORDINGLY, PETITIONER WAS CONVICTED AND SENTENCED TO
THREE YEARS'  IMPRISONMENT.  THE COURT OF APPEALS AFFIRMED, WITH ONE
JUDGE DISSENTING.  UNITED STATES V. MCKART, 395 F.2D 906 (C.A. 6TH CIR.
1968).  WE GRANTED CERTIORARI.  393 U.S. 922 (1968). 

   I. 

THE FACTS ARE NOT IN DISPUTE.  PETITIONER REGISTERED WITH HIS LOCAL
SELECTIVE SERVICE BOARD SHORTLY AFTER HIS 18TH BIRTHDAY AND THEREAFTER
COMPLETED HIS CLASSIFICATION QUESTIONNAIRE.  ON THAT FORM HE INDICATED
THAT HE WAS "THE SOLE SURVIVING SON OF A FAMILY OF WHICH ONE OR MORE
SONS OR DAUGHTERS WERE KILLED IN ACTION . . . WHILE SERVING IN THE
ARMED FORCES OF THE UNITED STATES . . . . "  ON FEBRUARY 25, 1963,
PETITIONER'S LOCAL BOARD PLACED HIM IN CLASS I-A, AVAILABLE FOR
MILITARY SERVICE; HE MADE NO ATTEMPT TO APPEAL THAT CLASSIFICATION. 
/3/ 

ON MARCH 23, 1964, HE WAS ORDERED TO REPORT FOR A PRE-INDUCTION
PHYSICAL, BUT FAILED TO DO SO.  HE WAS DECLARED A DELINQUENT AND
ORDERED TO REPORT FOR INDUCTION ON MAY 11, 1964.  HE FAILED TO REPORT,
BUT INSTEAD WROTE A LETTER TO HIS LOCAL BOARD INDICATING THAT HIS MORAL
BELIEFS PREVENTED HIM FROM COOPERATING WITH THE SELECTIVE SERVICE
SYSTEM.  THE LOCAL BOARD REPLIED BY SENDING PETITIONER THE FORM FOR
CLAIMING CONSCIENTIOUS OBJECTOR STATUS.  THE BOARD ALSO REFERRED TO
PETITIONER'S INDICATION IN HIS ORIGINAL QUESTIONNAIRE THAT HE WAS A
SOLE SURVIVING SON AND REQUESTED FURTHER INFORMATION ON THAT SUBJECT. 

ON MAY 20, 1964, PETITIONER RETURNED THE BLANK FORM, STATING THAT HE
DID NOT WISH TO BE A CONSCIENTIOUS OBJECTOR.  IN RESPONSE TO THE
BOARD'S REQUEST FOR INFORMATION ABOUT HIS CLAIM TO BE A SOLE SURVIVING
SON, PETITIONER INDICATED THAT HIS FATHER HAD BEEN KILLED IN WORLD WAR
II.  THE LOCAL BOARD, AFTER CONSULTING THE STATE DIRECTOR, AGAIN WROTE
PETITIONER REQUESTING MORE INFORMATION ABOUT HIS FATHER.  PETITIONER
SUPPLIED SOME OF THE INFORMATION.  THE LOCAL BOARD FORWARDED THIS
INFORMATION TO THE STATE DIRECTOR, WHO REQUESTED THE LOCAL BOARD TO
REOPEN PETITIONER'S CLASSIFICATION.  /4/  THE BOARD CANCELED HIS
INDUCTION ORDER AND RECLASSIFIED HIM IV-A, THE APPROPRIATE
CLASSIFICATION FOR A REGISTRANT EXEMPTED AS A SOLE SURVIVING SON. 
PETITIONER REMAINED IN THAT CLASSIFICATION UNTIL FEBRUARY 14, 1966. 

EARLY IN 1966, THE LOCAL BOARD LEARNED OF THE DEATH OF PETITIONER'S
MOTHER.  AFTER CHECKING WITH THE STATE DIRECTOR, THE BOARD RETURNED
PETITIONER TO CLASS I-A.  THE BOARD RESTED THIS DECISION ON THE THEORY
THAT A IV-A CLASSIFICATION BECAME IMPROPER WHEN PETITIONER'S "FAMILY
UNIT" CEASED TO EXIST ON THE DEATH OF HIS MOTHER.  PETITIONER WAS
ORDERED TO REPORT FOR A PRE-INDUCTION PHYSICAL.  HE FAILED TO REPORT
AND WAS DECLARED A DELINQUENT AND ORDERED TO REPORT FOR INDUCTION.  HE
AGAIN FAILED TO REPORT AND, AFTER FURTHER INVESTIGATION, HIS CRIMINAL
PROSECUTION FOLLOWED.  /5/

      II. 

WE THINK IT CLEAR THAT PETITIONER WAS EXEMPT FROM MILITARY SERVICE
AS A SOLE SURVIVING SON.  THE SOLE SURVIVING SON EXEMPTION ORIGINATED
IN THE SELECTIVE SERVICE ACT OF 1948, C. 625, SEC. 6(O), 62 STAT. 613. 
AS ORIGINALLY ENACTED, THAT SECTION PROVIDED EXEMPTION FOR THE SOLE
SURVIVING SON ONLY "(WHERE ONE OR MORE SONS OR DAUGHTERS OF A FAMILY
WERE KILLED IN ACTION . . . WHILE SERVING IN THE ARMED FORCES OF THE
UNITED STATES."  IN 1964, THE SECTION WAS AMENDED TO EXTEND THE
EXEMPTION TO SOLE SURVIVING SONS WHOSE FATHERS WERE KILLED IN ACTION. 
78 STAT. 296.  THE SECTION NOW READS IN RELEVANT PART AS FOLLOWS: 

"(WHERE THE FATHER OR ONE OR MORE SONS OR DAUGHTERS OF A FAMILY WERE
KILLED IN ACTION OR DIED IN LINE OF DUTY WHILE SERVING IN THE ARMED
FORCES . . . THE SOLE SURVIVING SONE OF SUCH FAMILY SHALL NOT BE
INDUCTED FOR SERVICE.  . . . . "  50 U.S.C. APP. 456(O). 

THERE IS NO QUESTION THAT PETITIONER WAS ENTITLED TO AN EXEMPTION
BEFORE THE DEATH OF HIS MOTHER.  THE ISSUE IS WHETHER HER DEATH, AND
THE END OF THE IMMEDIATE "FAMILY UNIT," ENDED THAT EXEMPTION. 

WE HAVE FOUND NO CASES DISCUSSING THIS ASPECT OF SEC. 6(O).  /6/
THE APPLICABLE SELECTIVE SERVICE SYSTEM REGULATION, 32 CFR
1622.40(A)(10) (1969), MERELY REPEATS THE LANGUAGE OF THE STATUTE.  THE
SYSTEM'S ADMINISTRATIVE INTERPRETATIONS HAVE NOT BEEN UNIFORM, /7/
ALTHOUGH IN THE PRESENT CASE THE NATIONAL DIRECTOR TOOK THE POSITION
THAT "INASMUCH AS THERE IS NO FAMILY, IT IS NOT BELIEVED THAT
(PETITIONER) WOULD QUALIFY FOR SOLE SURVIVING SON STATUS."  WE MUST,
THEREFORE, DECIDE WHAT IS ESSENTIALLY A QUESTION OF FIRST IMPRESSION. 
OUR EXAMINATION OF THE LANGUAGE AND LEGISLATIVE HISTORY OF SEC. 6(O)
INDICATES THAT THE SELECTIVE SERVICE SYSTEM'S INTERPRETATION FAILS TO
EFFECTUATE FULLY THE PURPOSES CONGRESS HAD IN MIND IN PROVIDING THE
EXEMPTION. 

THE LANGUAGE OF THE STATUTE PROVIDES ONLY THREE CONDITIONS, TWO
EXPLICIT AND ONE IMPLICIT, UPON WHICH THE EXEMPTION SHOULD TERMINATE. 
THE REGISTRANT MAY VOLUNTEER FOR SERVICE, A NATIONAL EMERGENCY OR WAR
MAY BE DECLARED OR, IMPLICITLY, THE REGISTRANT MAY CEASE TO BE THE SOLE
SURVIVING SON BY THE BIRTH OF A BROTHER.  THE SECTION SAYS NOTHING
ABOUT THE CONTINUING EXISTENCE OF A FAMILY UNIT, EVEN THOUGH OTHER
PROVISIONS OF THE SELECTIVE SERVICE LAWS MAKE SIMILAR CONDITIONS
EXPLICIT IN OTHER CONTEXTS.  /8/ 

THE ARGUMENT FOR CONDITIONING THE EXEMPTION UPON THE CONTINUED
EXISTENCE OF A FAMILY UNIT IS BASED NOT UPON THE LANGUAGE OR STRUCTURE
OF THE STATUTE BUT UPON CERTAIN REFERENCES IN THE LEGISLATIVE HISTORY. 
THESE COMMENTS INDICATE THAT ONE PURPOSE OF THE EXEMPTION WAS TO
PROVIDE "SOLACE AND CONSOLATION" TO THE REMAINING FAMILY MEMBERS BY
GUARANTEEING THE PRESENCE OF THE SOLE SURVIVING SON.  SEE S. REP. NO.
1119, 88TH CONG.,2D SESS., 3 (1964); HEARINGS BEFORE SUBCOMMITTEE NO. 1
OF THE HOUSE COMMITTEE ON ARMED SERVICES ON H.R. 2664, 88TH CONG.,1ST
SESS., 3442-3443 (1963).  WHEN THERE IS NO ONE LEFT TO COMFORT, IT IS
ARGUED, THE SOLE SURVIVING SON MAY BE DRAFTED.  HOWEVER, OUR
EXAMINATION OF THE SPARSE LEGISLATIVE HISTORY DISCLOSES THAT CONGRESS
HAD NOT ONE BUT SEVERAL PURPOSES IN MIND IN PROVIDING THE EXEMPTION,
ONLY SOME OF WHICH DEPEND UPON THE EXISTENCE OF A FAMILY UNIT. 

PERHAPS CHIEF AMONG THESE OTHER PURPOSES WAS A DESIRE TO AVOID
EXTINGUISHING THE MALE LINE OF A FAMILY THROUGH THE DEATH IN ACTION OF
THE ONLY SURVIVING SON.  SEE S. REP. NO. 1119, SUPRA; HEARING BEFORE
THE SENATE COMMITTEE ON ARMED SERVICES ON H.R. 2664, 88TH CONG.,1ST
SESS., 30-31 (1963); 110 CONG.REC.  15218 1964) (REMARKS OF SENATOR
KEATING).  OTHER PURPOSES MENTIONED WERE PROVIDING FINANCIAL SUPPORT
FOR THE REMAINING FAMILY MEMBERS, FAIRNESS TO THE REGISTRANT WHO HAS
LOST HIS FATHER IN THE SERVICE OF HIS COUNTRY, AND THE FEELING THAT
THERE IS, UNDER NORMAL CIRCUMSTANCES, A LIMIT TO THE SACRIFICE THAT ONE
FAMILY MUST MAKE IN THE SERVICE OF THE COUNTRY.  SEE HEARING BEFORE THE
SENATE COMMITTEE ON ARMED SERVICES ON H.R. 2664, SUPRA, AT 30-31;
HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON ARMED
SERVICES ON H.R. 2664, SUPRA, AT 3442-3443; 109 CONG.REC.  24889
(1963). 

PERHAPS THE MOST THAT CAN BE SAID IN THESE CIRCUMSTANCES IS THAT
CONGRESS HAD MULTIPLE PURPOSES IN MIND IN PROVIDING AN EXEMPTION FOR A
SOLE SURVIVING SON.  DEPRIVING PETITIONER OF AN EXEMPTION MIGHT NOT
FRUSTRATE ONE OF THESE PURPOSES, BUT IT CERTAINLY WOULD FRUSTRATE
SEVERAL OF THE OTHERS.  THEREFORE, GIVEN THE BENEFICENT BASIS FOR SEC.
6(O), WE CANNOT BELIEVE THAT CONGRESS INTENDED TO MAKE ONE FACTOR, THE
EXISTENCE OF A "FAMILY UNIT," CRUCIAL.  ACCORDINGLY, THE DEATH OF
PETITIONER'S MOTHER DID NOT OPERATE TO DEPRIVE HIM OF HIS RIGHT TO BE
EXEMPT FROM MILITARY SERVICE.  THE LOCAL BOARD ERRED IN CLASSIFYING
PETITIONER I-A AND ORDERING HIM TO REPORT FOR INDUCTION. 

III. 

THE GOVERNMENT MAINTAINS, HOWEVER, THAT PETITIONER CANNOT RAISE THE
INVALIDITY OF HIS I-A CLASSIFICATION AND SUBSEQUENT INDUCTION ORDER AS
A DEFENSE TO A CRIMINAL PROSECUTION FOR REFUSAL TO REPORT FOR
INDUCTION.  ACCORDING TO THE GOVERNMENT, PETITIONER'S FAILURE TO APPEAL
HIS RECLASSIFICATION AFTER THE DEATH OF HIS MOTHER CONSTITUTES A
FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES AND THEREFORE
SHOULD BAR ALL JUDICIAL REVIEW.  FOR THE REASONS SET OUT BELOW, WE
CANNOT AGREE. 

THE DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES IS WELL
ESTABLISHED IN THE JURISPRUDENCE OF ADMINISTRATIVE LAW.  SEE GENERALLY
3 K.DAVIS, ADMINISTRATIVE LAW TREATISE 20.01 ET SEQ. (1958 ED., 1965
SUPP.); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 424-458
(1965).  THE DOCTRINE PROVIDES "THAT NO ONE IS ENTITLED TO JUDICIAL
RELIEF FOR A SUPPOSED OR THREATENED INJURY UNTIL THE PRESCRIBED
ADMINISTRATIVE REMEDY HAS BEEN EXHAUSTED."  MYERS V. BETHLEHEM
SHIPBUILDING CORP., 303 U.S. 41, 50-51 (1938).  THE DOCTRINE IS APPLIED
IN A NUMBER OF DIFFERENT SITUATIONS AND IS, LIKE MOST JUDICIAL
DOCTRINES, SUBJECT TO NUMEROUS EXCEPTIONS.  /9/  APPLICATION OF THE
DOCTRINE TO SPECIFIC CASES REQUIRES AN UNDERSTANDING OF ITS PURPOSES
AND OF THE PARTICULAR ADMINISTRATIVE SCHEME INVOLVED. 

PERHAPS THE MOST COMMON APPLICATION OF THE EXHAUSTION DOCTRINE IS IN
CASES WHERE THE RELEVANT STATUTE PROVIDES THAT CERTAIN ADMINISTRATIVE
PROCEDURES SHALL BE EXCLUSIVE.  SEE MYERS V. BETHLEHEM SHIPBUILDING
CORP., 303 U.S. 41 (1938) (NATIONAL LABOR RELATIONS ACT).  THE REASONS
FOR MAKING SUCH PROCEDURES EXCLUSIVE, AND FOR THE JUDICIAL APPLICATION
OF THE EXHAUSTION DOCTRINE IN CASES WHERE THE STATUTORY REQUIREMENT OF
EXCLUSIVITY IS NOT SO EXPLICIT, ARE NOT DIFFICULT TO UNDERSTAND.  A
PRIMARY PURPOSE IS, OF COURSE, THE AVOIDANCE OF PREMATURE INTERRUPTION
OF THE ADMINISTRATIVE PROCESS.  THE AGENCY, LIKE A TRIAL COURT, IS
CREATED FOR THE PURPOSE OF APPLYING A STATUTE IN THE FIRST INSTANCE. 
ACCORDINGLY, IT IS NORMALLY DESIRABLE TO LET THE AGENCY DEVELOP THE
NECESSARY FACTUAL BACKGROUND UPON WHICH DECISIONS SHOULD BE BASED.  AND
SINCE AGENCY DECISIONS ARE FREQUENTLY OF A DISCRETIONARY NATURE OR
FREQUENTLY REQUIRE EXPERTISE, THE AGENCY SHOULD BE GIVEN THE FIRST
CHANCE TO EXERCISE THAT DISCRETION OR TO APPLY THAT EXPERTISE.  AND OF
COURSE IT IS GENERALLY MORE EFFICIENT FOR THE ADMINISTRATIVE PROCESS TO
GO FORWARD WITHOUT INTERRUPTION THAN IT IS TO PERMIT THE PARTIES TO
SEEK AID FROM THE COURTS AT VARIOUS INTERMEDIATE STAGES.  THE VERY SAME
REASONS LIE BEHIND JUDICIAL RULES SHRAPLY LIMITING INTERLOCUTORY
APPEALS. 

CLOSELY RELATED TO THE ABOVE REASONS IS A NOTION PECULIAR TO
ADMINISTRATIVE LAW.  THE ADMINISTRATIVE AGENCY IS CREATED AS A SEPARATE
ENTITY AND INVESTED WITH CERTAIN POWERS AND DUTIES.  THE COURTS
ORDINARILY SHOULD NOT INTERFERE WITH AN AGENCY UNTIL IT HAS COMPLETED
ITS ACTION, OR ELSE HAS CLEARLY EXCEEDED ITS JURISDICTION.  AS
PROFESSOR JAFFE PUTS IT, "(THE EXHAUSTION DOCTRINE IS, THEREFORE, AN
EXPRESSION OF EXECUTIVE AND ADMINISTRATIVE AUTONOMY."  /10/  THIS
REASON IS PARTICULARLY PERTINENT WHERE THE FUNCTION OF THE AGENCY AND
THE PARTICULAR DECISION SOUGHT TO BE REVIEWED INVOLVE EXERCISE OF
DISCRETIONARY POWERS GRANTED THE AGENCY BY CONGRESS, OR REQUIRE
APPLICATION OF SPECIAL EXPERTISE. 

SOME OF THESE REASONS APPLY EQUALLY TO CASES LIKE THE PRESENT ONE,
WHERE THE ADMINISTRATIVE PROCESS IS AT AN END AND A PARTY SEEKS
JUDICIAL REVIEW OF A DECISION THAT WAS NOT APPEALED THROUGH THE
ADMINISTRATIVE PROCESS.  PARTICULARLY, JUDICIAL REVIEW MAY BE HINDERED
BY THE FAILURE OF THE LITIGANT TO ALLOW THE AGENCY TO MAKE A FACTUAL
RECORD, OR TO EXERCISE ITS DISCRETION OR APPLY ITS EXPERTISE.  IN
ADDITION, OTHER JUSTIFICATIONS FOR REQUIRING EXHAUSTION IN CASES OF
THIS SORT HAVE NOTHING TO DO WITH THE DANGERS OF INTERRUPTION OF THE
ADMINISTRATIVE PROCESS.  CERTAIN VERY PRACTICAL NOTIONS OF JUDICIAL
EFFICIENCY COME INTO PLAY AS WELL.  A COMPLAINING PARTY MAY BE
SUCCESSFUL IN VINDICATING HIS RIGHTS IN THE ADMINISTRATIVE PROCESS.  IF
HE IS REQUIRED TO PURSUE HIS ADMINISTRATIVE REMEDIES, THE COURTS MAY
NEVER HAVE TO INTERVENE.  AND NOTIONS OF ADMINISTRATIVE AUTONOMY
REQUIRE THAT THE AGENCY BE GIVEN A CHANCE TO DISCOVER AND CORRECT ITS
OWN ERRORS.  FINALLY, IT IS POSSIBLE THAT FREQUENT AND DELIBERATE
FLOUTING OF ADMINISTRATIVE PROCESSES COULD WEAKEN THE EFFECTIVENESS OF
AN AGENCY BY ENCOURAGING PEOPLE TO IGNORE ITS PROCEDURES. 

IN SELECTIVE SERVICE CASES, THE EXHAUSTION DOCTRINE MUST BE TAILORED
TO FIT THE PECULIARITIES OF THE ADMINISTRATIVE SYSTEM CONGRESS HAS
CREATED.  AT THE HEART OF THE SELECTIVE SERVICE SYSTEM ARE THE LOCAL
BOARDS, WHICH ARE CHARGED IN THE FIRST INSTANCE WITH REGISTERING AND
CLASSIFYING THOSE SUBJECT TO THE SELECTIVE SERVICE LAWS.  32 CFR 1613.1
ET SEQ., SECS. 1621.1-1623.10 (1969).  UPON BEING CLASSIFIED BY THE
LOCAL BOARD, THE REGISTRANT HAS A RIGHT OF APPEAL TO A STATE APPEAL
BOARD, 32 CFR 1626.2 (1969), AND, IN SOME INSTANCES, TO THE PRESIDENT,
32 CFR 1627.3 (1969).  NO REGISTRANT IS REQUIRED TO APPEAL.  /11/  A
REGISTRANT CANNOT BE ORDERED TO REPORT FOR INDUCTION WHILE HIS
CLASSIFICATION IS BEING CONSIDERED BY THE LOCAL BOARD OR BY AN APPEAL
BOARD.  32 CFR 1624.2, 1625.14, 1626.41, 1627.8 (1969).    AT SOME
STAGE DURING THIS PROCESS, NORMALLY SHORTLY BEFORE HE IS EXPECTED TO BE
ORDERED TO REPORT FOR INDUCTION, SEE 32 CFR 1628.11 (1969), THE
REGISTRANT IS REQUIRED TO COMPLETE A PRE-INDUCTION PHYSICAL
EXAMINATION.  IF HE PASSES THIS EXAMINATION, HE ORDINARILY WILL BE
ORDERED TO REPORT FOR INDUCTION.  THE NEXT, AND LAST, STEP IS TO REPORT
TO THE INDUCTION CENTER AND SUBMIT TO INDUCTION.  AT THIS POINT, THE
ADMINISTRATIVE PROCESS IS AT AN END. 

IF THE REGISTRANT FAILS TO REPORT FOR INDUCTION, HE IS, LIKE
PETITIONER IN THE PRESENT CASE, SUBJECT TO CRIMINAL PROSECUTION. 
ALTHOUGH THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, AS IT STOOD
AT THE TIME OF PETITIONER'S TRIAL, PROVIDED THAT THE DECISIONS OF THE
LOCAL BOARDS WERE "FINAL," IT WAS LONG AGO ESTABLISHED THAT A
REGISTRANT CHARGED WITH FAILURE TO REPORT CAN RAISE THE DEFENSE THAT
THERE WAS "NO BASIS IN FACT" FOR HIS CLASSIFICATION.  SEE ESTEP V.
UNITED STATES, 327 U.S. 114, 123 (1946).  IT IS ALSO ESTABLISHED THAT
THERE CAN BE NO JUDICIAL REVIEW AT ALL, WITH SOME EXCEPTIONS, UNTIL THE
REGISTRANT HAS REFUSED TO SUBMIT TO INDUCTION AND IS PROSECUTED, OR
ELSE HAS SUBMITTED TO INDUCTION AND SEEKS RELEASE BY HABEAS CORPUS. 
/12/ 

THIS CASE RAISES A DIFFERENT QUESTION.  WE ARE NOT HERE FACED WITH A
PREMATURE RESORT TO THE COURTS-- ALL ADMINISTRATIVE REMEDIES ARE NOW
CLOSED TO PETITIONER.  WE ARE ASKED INSTEAD TO HOLD THAT PETITIONER'S
FAILURE TO UTILIZE A PARTICULAR ADMINISTRATIVE PROCESS-- AN APPEAL--
BARS HIM FROM DEFENDING A CRIMINAL PROSECUTION ON GROUNDS WHICH COULD
HAVE BEEN RAISED ON THAT APPEAL.  WE CANNOT AGREE THAT APPLICATION OF
THE EXHAUSTION DOCTRINE WOULD BE PROPER IN THE CIRCUMSTANCES OF THE
PRESENT CASE. 

FIRST OF ALL, IT IS WELL TO REMEMBER THAT USE OF THE EXHAUSTION
DOCTRINE IN CRIMINAL CASES CAN BE EXCEEDINGLY HARSH.  THE DEFENDANT IS
OFTEN STRIPPED OF HIS ONLY DEFENSE; HE MUST GO TO JAIL WITHOUT HAVING
ANY JUDICIAL REVIEW OF AN ASSERTEDLY INVALID ORDER.  THIS DEPRIVATION
OF JUDICIAL REVIEW OCCURS NOT WHEN THE AFFECTED PERSON IS AFFIRMATIVELY
ASKING FOR ASSISTANCE FROM THE COURTS BUT WHEN THE GOVERNMENT IS
ATTEMPTING TO IMPOSE CRIMINAL SANCTIONS ON HIM.  SUCH A RESULT SHOULD
NOT BE TOLERATED UNLESS THE INTERESTS UNDERLYING THE EXHAUSTION RULE
CLEARLY OUTWEIGH THE SEVERE BURDEN IMPOSED UPON THE REGISTRANT IF HE IS
DENIED JUDICIAL REVIEW.  /13/  THE STATUTE AS IT STOOD WHEN PETITIONER
WAS RECLASSIFIED SAID NOTHING WHICH WOULD REQUIRE REGISTRANTS TO RAISE
ALL THEIR CLAIMS BEFORE THE APPEAL BOARDS.  /14/  WE MUST ASK, THEN,
WHETHER THERE IS IN THIS CASE A GOVERNMENTAL INTEREST COMPELLING ENOUGH
TO OUTWEIGH THE SEVERE BURDEN PLACED ON PETITIONER.  EVEN IF THERE IS
NO SUCH COMPELLING INTEREST WHEN PETITIONER'S CASE IS VIEWED IN
ISOLATION, WE MUST ALSO ASK WHETHER ALLOWING ALL SIMILARLY SITUATED
REGISTRANTS TO BYPASS ADMINISTRATIVE APPEAL PROCEDURES WOULD SERIOUSLY
IMPAIR THE SELECTIVE SERVICE SYSTEM'S ABILITY TO PERFORM ITS
FUNCTIONS. 

THE QUESTION OF WHETHER PETITIONER IS ENTITLED TO EXEMPTION AS A
SOLE SURVIVING SON IS, AS WE HAVE SEEN, SOLELY ONE OF STATUTORY
INTERPRETATION.  THE RESOLUTION OF THAT ISSUE DOES NOT REQUIRE ANY
PARTICULAR EXPERTISE ON THE PART OF THE APPEAL BOARD; THE PROPER
INTERPRETATION IS CERTAINLY NOT A MATTER OF DISCRETION.  /15/  IN THIS
SENSE, THE ISSUE IS DIFFERENT FROM MANY SELECTIVE SERVICE
CLASSIFICATION QUESTIONS WHICH DO INVOLVE EXPERTISE OR THE EXERCISE OF
DISCRETION, BOTH BY THE LOCAL BOARDS AND THE APPEAL BOARDS.  /16/
PETITIONER'S FAILURE TO TAKE HIS CLAIM THROUGH ALL AVAILABLE
ADMINISTRATIVE APPEALS ONLY DEPRIVED THE SELECTIVE SERVICE SYSTEM OF
THE OPPORTUNITY OF HAVING ITS APPELLATE BOARDS RESOLVE A QUESTION OF
STATUTORY INTERPRETATION.  SINCE JUDICIAL REVIEW WOULD NOT BE
SIGNIFICANTLY AIDED BY AN ADDITIONAL ADMINISTRATIVE DECISION OF THIS
SORT, WE CANNOT SEE ANY COMPELLING REASON WHY PETITIONER'S FAILURE TO
APPEAL SHOULD BAR HIS ONLY DEFENSE TO A CRIMINAL PROSECUTION.  /17/
THERE IS SIMPLY NO OVERWHELMING NEED FOR THE COURT TO HAVE THE AGENCY
FINALLY RESOLVE THIS QUESTION IN THE FIRST INSTANCE, AT LEAST NOT WHERE
THE ADMINISTRATIVE PROCESS IS AT AN END AND THE REGISTRANT IS FACED
WITH CRIMINAL PROSECUTION.  /18/ 

WE ARE THUS LEFT WITH THE GOVERNMENT'S ARGUMENT THAT FAILURE TO
REQUIRE EXHAUSTION IN THE PRESENT CASE WILL INDUCE REGISTRANTS TO
BYPASS AVAILABLE ADMINISTRATIVE REMEDIES.  THE GOVERNMENT FEARS AN
INCREASE IN LITIGATION AND A CONSEQUENT DANGER OF THWARTING THE PRIMARY
FUNCTION OF THE SELECTIVE SERVICE SYSTEM, THE RAPID MOBILIZATION OF
MANPOWER.  THIS ARGUMENT IS BASED UPON THE PROPOSITION THAT THE
SELECTIVE SERVICE SYSTEM WILL, THROUGH ITS OWN PROCESSES, CORRECT MOST
ERRORS AND THUS AVOID MUCH LITIGATION.  THE EXHAUSTION DOCTRINE IS
ASSERTEDLY NECESSARY TO COMPEL RESORT TO THESE PROCESSES.  THE
GOVERNMENT ALSO SPECULATES THAT MANY MORE REGISTRANTS WILL RISK
CRIMINAL PROSECUTION IF THEIR CLAIMS NEED NOT CARRY INTO COURT THE
STIGMA OF DENIAL NOT ONLY BY THEIR LOCAL BOARDS, BUT ALSO BY AT LEAST
ONE APPEAL BOARD. 

WE DO NOT, HOWEVER, TAKE SUCH A DIRE VIEW OF THE LIKELY CONSEQUENCES
OF TODAY'S DECISION.  AT THE OUTSET, WE DOUBT WHETHER MANY REGISTRANTS
WILL BE FOOLHARDY ENOUGH TO DENY THE SELECTIVE SERVICE SYSTEM THE
OPPORTUNITY TO CORRECT ITS OWN ERRORS BY TAKING THEIR CHANCES WITH A
CRIMINAL PROSECUTION AND A POSSIBILITY OF FIVE YEARS IN JAIL.  THE VERY
PRESENCE OF THE CRIMINAL SANCTION IS SUFFICIENT TO ENSURE THAT THE
GREAT MAJORITY OF REGISTRANTS WILL EXHAUST ALL ADMINISTRATIVE REMEDIES
BEFORE DECIDING WHETHER OR NOT TO CONTINUE THE CHALLENGE TO THEIR
CLASSIFICATIONS.  AND, TODAY'S HOLDING DOES NOT APPLY TO EVERY
REGISTRANT WHO FAILS TO TAKE ADVANTAGE OF THE ADMINISTRATIVE REMEDIES
PROVIDED BY THE SELECTIVE SERVICE SYSTEM.  FOR, AS WE HAVE SAID, MANY
CLASSIFICATIONS REQUIRE EXERCISE OF DISCRETION OR APPLICATION OF
EXPERTISE; IN THESE CASES, IT MAY BE PROPER TO REQUIRE A REGISTRANT TO
CARRY HIS CASE THROUGH THE ADMINISTRATIVE PROCESS BEFORE HE COMES INTO
COURT.  MOREOVER, WE ARE NOT CONVINCED THAT MANY IN THIS RATHER SMALL
CLASS OF REGISTRANTS WILL BYPASS THE SELECTIVE SERVICE SYSTEM WITH THE
THOUGHT THAT THEIR ULTIMATE CHANCES OF SUCCESS IN THE COURTS ARE
ENHANCED THEREBY.  IN SHORT, WE SIMPLY DO NOT THINK THAT THE EXHAUSTION
DOCTRINE CONTRIBUTES SIGNIFICANTLY TO THE FAIRLY LOW NUMBER OF
REGISTRANTS WHO DECIDE TO SUBJECT THEMSELVES TO CRIMINAL PROSECUTION
FOR FAILURE TO SUBMIT TO INDUCTION.  ACCORDINGLY, IN THE PRESENT CASE,
WHERE THERE APPEARS NO SIGNIFICANT INTEREST TO BE SERVED IN HAVING THE
SYSTEM DECIDE THE ISSUE BEFORE IT REACHES THE COURTS, WE DO NOT BELIEVE
THAT PETITIONER'S FAILURE TO APPEAL HIS CLASSIFICATION SHOULD FORECLOSE
ALL JUDICIAL REVIEW. 

WE DO NOT VIEW THE CASES OF FALBO V. UNITED STATES, 320 U.S. 549
(1944), AND ESTEP V. UNITED STATES, 327 U.S. 114 (1946), INSOFAR AS
THEY CONCERN THE EXHAUSTION DOCTRINE, AS A BAR TO TODAY'S HOLDING. 
NEITHER THOSE TWO CASES, NOR ANY OF THE OTHER CASES DECIDED BY THIS
COURT, /19/  STAND FOR THE PROPOSITION THAT THE EXHAUSTION DOCTRINE
MUST BE APPLIED BLINDLY IN EVERY CASE.  INDEED, THOSE CASES ALL
INVOLVED MINISTERIAL OR CONSCIENTIOUS OBJECTOR CLAIMS, CLAIMS THAT MAY
WELL HAVE TO BE PURSUED THROUGH THE ADMINISTRATIVE PROCEDURES PROVIDED
BY THE SELECTIVE SERVICE LAWS.  /20/

       IV. 

FINALLY, WE ARE FACED WITH THE ARGUMENT THAT PETITIONER'S CHALLENGE
TO THE VALIDITY OF HIS CLASSIFICATION IS BARRED BY HIS FAILURE TO
REPORT FOR AND PASS HIS PRE-INDUCTION PHYSICAL, THUS GIVING THE SYSTEM
ONE LAST CHANCE TO REJECT HIM.  THE GOVERNMENT POINTS TO THE FACT THAT
LARGE NUMBERS OF REGISTRANTS ARE REJECTED FOR PHYSICAL AND MENTAL
REASONS, AND ASSERTS THAT MANY CRIMINAL TRIALS WOULD BE RENDERED
UNNECESSARY IF REGISTRANTS WERE REQUIRED TO REPORT FOR A PHYSICAL
BEFORE BEING ALLOWED TO CHALLENGE THEIR CLASSIFICATIONS. 

WE THINK THERE ARE SEVERAL ANSWERS TO THIS ARGUMENT.  FIRST, AS WE
SAID ABOVE, WE DOUBT VERY MUCH WHETHER VERY MANY REGISTRANTS WOULD PASS
UP THE CHANCE TO ESCAPE SERVICE BY REASON OF PHYSICAL OR MENTAL DEFECTS
AND LEAP IMMEDIATELY AT THE CHANCE TO DEFEND A CRIMINAL PROSECUTION. 
BUT MORE IMPORTANTLY, A REGISTRANT IS UNDER A DUTY TO COMPLY WITH THE
ORDER TO REPORT FOR A PHYSICAL EXAMINATION /21/  AND MAY BE CRIMINALLY
PROSECUTED FOR FAILURE TO COMPLY.  /22/  IF THE GOVERNMENT DEEMS IT
IMPORTANT ENOUGH TO THE SMOOTH FUNCTIONING OF THE SYSTEM TO HAVE UNFIT
REGISTRANTS WEEDED OUT AT THE EARLIEST POSSIBLE MOMENT, IT CAN ENFORCE
THE DUTY TO REPORT FOR PRE-INDUCTION EXAMINATIONS BY CRIMINAL
SANCTIONS.  IN THE PRESENT CASE, IT HAS NOT CHOSEN TO DO SO.
PETITIONER HAS NOT BEEN PROSECUTED FOR FAILURE TO REPORT FOR HIS
EXAMINATION; HE HAS BEEN PROSECUTED FOR FAILURE TO REPORT FOR
INDUCTION, A DUTY HE CLAIMS HE DID NOT HAVE.  THEREFORE, WE HOLD THAT
PETITIONER'S FAILURE TO REPORT FOR HIS EXAMINATION SHOULD NOT BAR HIM
FROM CHALLENGING THE VALIDITY OF HIS CLASSIFICATION AS A DEFENSE TO HIS
CRIMINAL PROSECUTION. 

WE DO NOT REGARD FALBO V. UNITED STATES, SUPRA, AS A BAR TO THIS
HOLDING.  FALBO INVOLVED AN ATTEMPT TO RAISE THE INVALIDITY OF A
REGISTRANT'S CLASSIFICATION AS A DEFENSE TO A CRIMINAL PROSECUTION FOR
FAILURE TO REPORT TO A CIVILIAN WORK CAMP.  THE COURT NOTED THAT THE
DEFENDANT HAD NOT REPORTED TO THE WORK CAMP AND THUS HAD NOT GIVEN THE
SELECTIVE SERVICE SYSTEM THE OPPORTUNITY TO REJECT HIM FOR PHYSICAL OR
MENTAL REASONS.  ACCORDING TO THE COURT, THE "NARROW QUESTION . . .
PRESENTED . . . (WAS) WHETHER CONGRESS HAS AUTHORIZED JUDICIAL REVIEW
OF THE PROPRIETY OF A BOARD'S CLASSIFICATION IN A CRIMINAL PROSECUTION
FOR WILFUL VIOLATION OF AN ORDER DIRECTING A REGISTRANT TO REPORT FOR
THE LAST STEP IN THE SELECTIVE PROCESS."  320 U.S.,AT 554.  THE COURT
HELD THAT CONGRESS HAD NOT AUTHORIZED SUCH REVIEW. 

FALBO WAS LIMITED BY ESTEP V. UNITED STATES, SUPRA, WHICH HELD THAT
A REGISTRANT COULD SECURE LIMITED JUDICIAL REVIEW OF HIS CLASSIFICATION
IN A CRIMINAL PROSECUTION FOR FAILURE TO REPORT IF HE HAD PURSUED HIS
ADMINISTRATIVE REMEDIES TO AN END.  IN ESTEP, THE REGISTRANT HAD
REPORTED, HAD BEEN ACCEPTED FOR INDUCTION, BUT HAD REFUSED TO BE
INDUCTED. 

THE HOLDING OF THE COURT IN FALBO WAS BASED IN PART ON A FEAR OF
LITIGIOUS INTERRUPTION OF THE SELECTIVE SERVICE SYSTEM.  WE HAVE DEALT
WITH THAT PROBLEM IN OTHER CASES.  SEE CLARK V. GABRIEL, 393 U.S. 256
(1968); OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S. 233 (1968).  IT
IS NOT PRESENTED HERE.  AS NOTED ABOVE, THE ADMINISTRATIVE PROCESS IN
THIS CASE IS AT AN END. 

FINALLY, THE COURT IN FALBO WAS CONCERNED WITH THE POSSIBILITY THAT
A REGISTRANT MIGHT BE REJECTED FOR PHYSICAL OR MENTAL REASONS, THUS
MAKING A CRIMINAL PROSECUTION UNNECESSARY.  BUT, AS WE HAVE SEEN, THE
SELECTIVE SERVICE SYSTEM HAS AMPLE MEANS TO ENSURE THAT THE GREAT
MAJORITY OF REGISTRANTS WILL REPORT FOR THEIR PRE-INDUCTION
EXAMINATIONS.  AT THE TIME FALBO WAS DECIDED THE REGULATIONS PROVIDED
THAT THE PRE-INDUCTION EXAMINATION WAS TO BE GIVEN AT THE TIME THE
REGISTRANT RESPONDED TO THE ORDER TO REPORT FOR INDUCTION OR TO THE
WORK CAMP.  SEE GIBSON V. UNITED STATES, 329 U.S. 338 (1946). 
ACCORDINGLY, THE SELECTIVE SERVICE SYSTEM HAD NO WAY TO ENFORCE THE
DUTY TO REPORT FOR AN EXAMINATION OTHER THAN BY A PROSECUTION FOR
FAILURE TO REPORT FOR INDUCTION.  AN INVALID CLASSIFICATION, IF ALLOWED
TO BE RAISED, WOULD HAVE BEEN A COMPLETE DEFENSE TO THAT PROSECUTION;
IT WOULD NOT BE A DEFENSE TODAY TO A PROSECUTION FOR FAILURE TO REPORT
FOR A PRE-INDUCTION EXAMINATION. 

WE HOLD THAT PETITIONER'S FAILURE TO APPEAL HIS CLASSIFICATION AND
FAILURE TO REPORT FOR HIS PRE-INDUCTION PHYSICAL DO NOT BAR A CHALLENGE
TO THE VALIDITY OF HIS CLASSIFICATION AS A DEFENSE TO HIS CRIMINAL
PROSECUTION FOR REFUSAL TO SUBMIT TO INDUCTION.  WE ALSO HOLD THAT
PETITIONER WAS ENTITLED TO EXEMPTION FROM MILITARY SERVICE AS A SOLE
SURVIVING SON.  ACCORDINGLY, WE REVERSE THE JUDGMENT OF THE COURT BELOW
AND REMAND THE CASE FOR ENTRY OF A JUDGMENT OF ACQUITTAL. 

              IT IS SO ORDERED. 

/1/  "ANY . . . PERSON . . . WHO IN ANY MANNER SHALL KNOWINGLY FAIL OR
NEGLECT OR REFUSE TO PERFORM ANY DUTY REQUIRED OF HIM UNDER OR IN THE
EXECUTION OF THIS TITLE . . . , OR RULES, REGULATIONS, OR DIRECTIONS
MADE PURSUANT TO THIS TITLE . . . SHALL, UPON CONVICTION IN ANY
DISTRICT COURT OF THE UNITED STATES OF COMPETENT JURISDICTION, BE
PUNISHED BY IMPRISONMENT FOR NOT MORE THAN FIVE YEARS OR A FINE OF NOT
MORE THAN $10,000, OR BY BOTH SUCH FINE AND IMPRISONMENT . . . . "
SELECTIVE SERVICE ACT OF 1948, SEC. 12, 62 STAT. 622, AS AMENDED, NOW
SEC. 12 OF THE MILITARY SELECTIVE SERVICE ACT OF 1967 (SEE 81 STAT.
100, SEC. 1(A), 50 U.S.C. APP. 462 (1964 ED.,SUPP.  III). 

/2/  "EXCEPT DURING THE PERIOO OF A WAR OR A NATIONAL EMERGENCY
DECLARED BY THE CONGRESS AFTER THE DATE OF THE ENACTMENT OF THE 1964
AMENDMENT TO THIS SUBSECTION (JULY 7, 1964), WHERE THE FATHER OR ONE OR
MORE SONS OR DAUGHTERS OF A FAMILY WERE KILLED IN ACTION OR DIED IN
LINE OF DUTY WHILE SERVING IN THE ARMED FORCES OF THE UNITED STATES, OR
SUBSEQUENTLY DIED AS A RESULT OF INJURIES RECEIVED OR DISEASE INCURRED
DURING SUCH SERVICE, THE SOLE SURVIVING SON OF SUCH FAMILY SHALL NOT BE
INDUCTED FOR SERVICE UNDER THE TERMS OF THIS TITLE . . . UNLESS HE
VOLUNTEERS FOR INDUCTION."  SELECTIVE SERVICE ACT OF 1948, SEC. 6(O),
62 STAT. 613, AS AMENDED, 50 U.S.C. APP. 456(O).     /3/  A REGISTRANT
HAS THE RIGHT TO APPEAR BEFORE HIS LOCAL BOARD TO CONTEST HIS
CLASSIFICATION OR TO PRESENT NEW INFORMATION TO THE BOARD.  32 CFR
1624.1, 1624.2 (1969).  THE BOARD THEN DETERMINES WHETHER OR NOT TO
RECONSIDER THE REGISTRANT'S CLASSIFICATION.  32 CFR 1624.2(C),(D)
(1969).  FOLLOWING THE LOCAL BOARD'S DECISION, THE REGISTRANT HAS THE
RIGHT TO APPEAL TO THE STATE APPEAL BOARD.  32 CFR 1624.2(E), 1625.13
(1969).  A FURTHER APPEAL MAY BE TAKEN BY THE REGISTRANT TO THE
NATIONAL SELECTIVE SERVICE APPEAL BOARD ONLY IF ONE OR MORE MEMBERS OF
THE STATE APPEAL BOARD DISSENT FROM THE BOARD'S DECISION.  32 CFR
1627.3 (1969). 

/4/  THE SELECTIVE SERVICE SYSTEM REGULATIONS REQUIRE THE LOCAL
BOARD TO REOPEN A REGISTRANT'S CLASSIFICATION UPON THE WRITTEN REQUEST
OF THE STATE OR NATIONAL DIRECTOR.  32 CFR 1625.3(A) (1969). 

/5/  AFTER PETITIONER FAILED TO REPORT FOR INDUCTION THE SECOND
TIME, THE STATE DIRECTOR CONFIRMED THAT PETITIONER'S FATHER HAD BEEN
KILLED IN ACTION AND THEN REQUESTED ADVICE OF THE NATIONAL DIRECTOR. 
THE LATTER REPLIED THAT "INASMUCH AS THERE IS NO FAMILY, IT IS NOT
BELIEVED THAT (PETITIONER) WOULD QUALIFY FOR SOLE SURVIVING SON
STATUS."  THIS INFORMATION WAS THEN COMMUNICATED TO THE LOCAL BOARD AND
THE CASE REFERRED TO THE LOCAL UNITED STATES ATTORNEY.  PETITIONER'S
INDICTMENT FOLLOWED. 

/6/  CF. PICKENS V. COX, 282 F.2D 784 (C.A. 10TH CIR. 1960). 

/7/  SHORTLY AFTER THE 1964 AMENDMENT, THE SELECTIVE SERVICE SYSTEM
TOOK THE POSITION THAT A SOLE SURVIVING SON EXEMPTION WOULD NOT BE
AFFECTED BY ANY CHANGE IN THE STATUS OF THE FAMILY, OTHER THAN THE
BIRTH OF A FULL BROTHER.  SELECTIVE SERVICE SYSTEM OPERATIONS BULLETIN
NO. 263 (AUGUST 14, 1964).  THAT POSITION WAS LATER RESCINDED AND THE
SYSTEM HAS ISSUED NO FURTHER INSTRUCTIONS CONCERNING SEC. 6(O). 

/8/  SECTION 6(H) OF THE MILITARY SELECTIVE SERVICE ACT OF 1967, 81
STAT. 102, AUTHORIZES THE PRESIDENT TO PROVIDE FOR THE DEFERMENT OF
"PERSONS WHO HAVE CHILDREN, OR WIVES AND CHILDREN, WITH WHOM THEY
MAINTAIN A BONA FIDE FAMILY RELATIONSHIP IN THEIR HOMES."  SECTION 6(H)
OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 611, WAS TO THE SAME
GENERAL EFFECT. 

HAD CONGRESS WISHED TO CONDITION THE EXEMPTION ON THE EXISTENCE OF A
FAMILY UNIT, IT WOULD ALSO SEEM LOGICAL FOR IT TO HAVE DEFINED THAT
"FAMILY UNIT."  FOR EXAMPLE, THE TRIAL IN THE PRESENT CASE DISCLOSED
THAT BOTH OF PETITIONER'S MATERNAL GRANDPARENTS AND HIS PATERNAL
GRANDMOTHER WERE STILL LIVING.  NOTHING IN THE STATUTE INDICATES
WHETHER THESE RELATIVES SHOULD BE CONSIDERED PART OF THE "FAMILY." 

/9/  SEE, E.G., LAYTON & FINE, THE DRAFT AND EXHAUSTION OF
ADMINISTRATIVE REMEDIES, 56 GEO.L.J. 315, 322-331 (1967). 

/10/  L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 425
(1965). 

/11/  THE NOTICE OF CLASSIFICATION FORM, SSS FORM 110, INFORMS THE
REGISTRANT OF HIS RIGHT TO APPEAL, BUT DOES NOT INFORM HIM THAT FAILURE
TO APPEAL MAY BAR A SUBSEQUENT CHALLENGE TO THE VALIDITY OF HIS
CLASSIFICATION. 

/12/  THESE JUDICIALLY CREATED DOCTRINES WERE RECENTLY ENACTED AS
SEC. 10(B)(3) OF THE MILITARY SELECTIVE SERVICE ACT OF 1967, 81 STAT.
104.  SECTION 10(B)(3) PROVIDES IN PERTINENT PART: 

"NO JUDICIAL REVIEW SHALL BE MADE OF THE CLASSIFICATION OR
PROCESSING OF ANY REGISTRANT BY LOCAL BOARDS, APPEAL BOARDS, OR THE
PRESIDENT, EXCEPT AS A DEFENSE TO A CRIMINAL PROSECUTION . . . AFTER
THE REGISTRANT HAS RESPONDED EITHER AFFIRMATIVELY OR NEGATIVELY TO AN
ORDER TO REPORT FOR INDUCTION.  . . . PROVIDED, THAT SUCH REVIEW SHALL
GO TO THE QUESTION OF THE JURISDICTION HEREIN RESERVED TO LOCAL BOARDS,
APPEAL BOARDS, AND THE PRESIDENT ONLY WHEN THERE IS NO BASIS IN FACT
FOR THE CLASSIFICATION ASSIGNED TO SUCH REGISTRANT."  50 U.S.C. APP.
460(B)(3) (1964 ED.,SUPP.  III). 

WE HAVE RECENTLY HAD OCCASION TO INTERPRET THIS SECTION IN THE
CONTEXT OF PRE-INDUCTION CHALLENGES TO CLASSIFICATIONS.  SEE CLARK V.
GABRIEL, 393 U.S. 256 (1968); OESTEREICH V. SELECTIVE SERVICE BOARD,
393 U.S. 233 (1968).  WE HAVE GRANTED CERTIORARI IN BREEN V. SELECTIVE
SERVICE BOARD, NO. 1144, CERT. GRANTED, 394 U.S. 997, TO CONSIDER THE
APPLICABILITY OF SEC. 10(B)(3) TO PRE-INDUCTION CHALLENGES TO ALLEGEDLY
"PUNITIVE" RECLASSIFICATIONS. 

/13/  SEE YAKUS V. UNITED STATES, 321 U.S. 414 (1944). 

/14/  THE 1967 AMENDMENT, SEE N. 12, SUPRA, MAKES NO REFERENCE TO
EXHAUSTION OF ADMINISTRATIVE REMEDIES AS A PREREQUISITE TO CHALLENGING
THE VALIDITY OF A CLASSIFICATION AS A DEFENSE TO A CRIMINAL PROSECUTION
FOR REFUSAL TO SUBMIT TO INDUCTION.  THE LEGISLATIVE HISTORY OF THAT
AMENDMENT INDICATES THAT CONGRESS WAS CONCERNED WITH CERTAIN JUDICIAL
DECISIONS ALLOWING PRE-INDUCTION REVIEW OF SELECTIVE SERVICE
CLASSIFICATIONS AND THE POSSIBILITY THAT SUCH "LITIGIOUS INTERRUPTION"
MIGHT SERIOUSLY AFFECT THE ADMINISTRATION OF THE SELECTIVE SERVICE
SYSTEM.  SEE OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S. 233, 245
252 (1968) (DISSENTING OPINION). 

/15/  OF COURSE, IT IS NECESSARY THAT THE LOCAL BOARD, WHICH HAS THE
RESPONSIBILITY OF CLASSIFYING REGISTRANTS IN THE FIRST INSTANCE, BE
GIVEN THE INFORMATION NECESSARY TO PERFORM ITS FUNCTION.  HOWEVER, THE
PRESENT CASE DOES NOT PRESENT AN INSTANCE WHERE A REGISTRANT IS TRYING
TO CHALLENGE A CLASSIFICATION ON THE BASIS OF FACTS NOT PRESENTED TO
THE LOCAL BOARD.  IN SUCH A CASE, THE SMOOTH FUNCTIONING OF THE SYSTEM
MAY WELL REQUIRE THAT CHALLENGES TO CLASSIFICATIONS BASED UPON FACTS
NOT PROPERLY PRESENTED TO THE BOARD BE BARRED.  IN THE CASE BEFORE US,
THE BOARD WAS AWARE OF THE RELEVANT FACTS WHEN IT MADE ITS DECISION TO
RECLASSIFY PETITIONER I-A; NO FURTHER FACTUAL INQUIRY WOULD HAVE BEEN
AT ALL USEFUL. 

/16/  CONSCIENTIOUS OBJECTOR CLAIMS, MILITARY SELECTIVE SERVICE ACT
OF 1967, SEC. 6(J), 81 STAT. 104, 50 U.S.C. APP. 456(J) (1964
ED.,SUPP.  III), OR DEFERMENTS FOR THOSE ENGAGED IN ACTIVITIES  DEEMED
"NECESSARY TO THE MAINTENANCE OF THE NATIONAL HEALTH, SAFETY, OR
INTEREST," ID., SEC. 6(H)(2), 81 STAT. 102, 50 U.S.C. APP. 456(H)(2)
(1964 ED.,SUPP.  III), WOULD APPEAR TO BE EXAMPLES OF QUESTIONS
REQUIRING THE APPLICATION OF EXPERTISE OR THE EXERCISE OF DISCRETION. 
IN SUCH CASES, THE SELECTIVE SERVICE SYSTEM AND THE COURTS MAY HAVE A
STRONGER INTEREST IN HAVING THE QUESTION DECIDED IN THE FIRST INSTANCE
BY THE LOCAL BOARD AND THEN BY THE APPEAL BOARD, WHICH CONSIDERS THE
QUESTION ANEW.  32 CFR 1626.26.  THE SELECTIVE SERVICE SYSTEM IS
EMPOWERED BY CONGRESS TO MAKE SUCH DISCRETIONARY DETERMINATIONS AND
ONLY THE LOCAL AND APPEAL BOARDS HAVE THE NECESSARY EXPERTISE.  SEE
THOMPSON V. UNITED STATES, 380 F.2D 86 (C.A. 10TH CIR. 1967). 

/17/  AS NOTED ABOVE, THE SELECTIVE SERVICE SYSTEM IS NOT WITHOUT
POWER TO CORRECT ITS OWN ERRORS WITHOUT THE INTERVENTION OF THE
REGISTRANT.  SEE NN. 4 AND 5, SUPRA. 

/18/  IT IS TRUE THAT WE RECENTLY MADE SPECIFIC REFERENCE TO THE
EXHAUSTION DOCTRINE IN OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S.
233, 235-236, N. 5 (1968), A CASE WHERE ALL ADMINISTRATIVE APPEALS HAD
BEEN EXHAUSTED.  HOWEVER, THAT CASE INVOLVED AN ATTEMPT TO CHALLENGE
THE VALIDITY OF A CLASSIFICATION BEFORE RECEIPT OF A NOTICE OF
INDUCTION.  A REGISTRANT'S FAILURE TO APPEAL MAY HAVE DIFFERENT
IMPLICATIONS IF RAISED IN A SUIT FOR PRE-INDUCTION REVIEW. 

/19/  SEE BILLINGS V. TRUESDELL, 321 U.S. 542, 558 (1944); GIBSON V.
UNITED STATES, 329 U.S. 338, 349-350 (1946); SUNAL V. LARGE, 332 U.S.
174, 176 (1947); COX V. UNITED STATES, 332 U.S. 442, 445, 448 (1947). 

/20/  SEE N. 16, SUPRA. 

/21/  SEE 32 CFR 1628.10, 1628.11 (1969). 

/22/  SEE N. 1, SUPRA. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE PRINCIPLE OF OESTEREICH V. SELECTIVE SERVICE BOARD, 393 U.S. 233,
SHOULD DISPOSE OF THIS CASE.  THERE A REGISTRANT WAS PLAINLY ENTITLED
TO A STATUTORY EXEMPTION FROM SERVICE BECAUSE HE WAS A DIVINITY
STUDENT.  YET HE WAS DENIED THE EXEMPTION BECAUSE, HAVING BURNED HIS
DRAFT CARD, HE WAS CLASSIFIED AS A "DELINQUENT" BY SELECTIVE SERVICE. 
HE CHALLENGED THAT ACTION IN A CIVIL SUIT FOR PRE-INDUCTION REVIEW; AND
WE GRANTED RELIEF. 

THIS IS NOT A SUIT FOR PRE-INDUCTION REVIEW, BUT A DEFENSE TENDERED
IN A CRIMINAL PROSECUTION.  THIS STATUTORY EXEMPTION IS AS CLEAR AS THE
ONE IN OESTEREICH.  THE "SOLE SURVIVING" SON OF A FAMILY WHOSE FATHER
HAD BEEN KILLED IN ACTION IS EXEMPT AND THERE CAN HARDLY BE ANY
ARGUMENT THAT PETITIONER IS SUCH A "SON" THOUGH BOTH HIS FATHER AND
MOTHER ARE DEAD.  HE IS INDEED THE LAST MALE HEIR OF THE LINE AND
THEREFORE ONE WHO CONGRESS CHARITABLY DECIDED SHOULD NOT BE EXPOSED TO
THE CHANCE OF DEATH IN WARFARE. 

IF OESTEREICH COULD RAISE HIS CLAIM TO STATUTORY EXEMPTION IN A
CIVIL SUIT AT A PRE-INDUCTION STAGE, IT FOLLOWS A FORTIORI THAT
PETITIONER CAN DO SO IN A CRIMINAL PROSECUTION FOR FAILURE TO OBEY THE
ACT'S MANDATE. 

THE TRUTH OF THE MATTER IS THAT IT WAS THE SELECTIVE SERVICE BOARD
THAT ACTED IN A "LAWLESS" MANNER; /1/  AND WHEN ITS ERROR IS SO
EGREGIOUS, IT WOULD BE A TRAVESTY OF JUSTICE TO REQUIRE A REGISTRANT--
WHETHER OR NOT SOPHISTICATED-- TO PURSUE THE ADMINISTRATIVE REMEDIES
THAT ARE DESIGNED FOR QUITE DIFFERENT CATEGORIES OF CASES. 

/1/  WHILE QUESTIONS OF LAW ARE USUALLY ROUTED THROUGH THE AVAILABLE
ADMINISTRATIVE MACHINERY (SEE UDALL V. TALLMAN, 380 U.S. 1, 16), THAT
PRINCIPLE EVOLVED UNDER REGULATORY SCHEMES WHERE AGENCIES HAD GENERAL
OVERSIGHT AND SUPERVISION OVER COMPANIES OR OTHER GROUPS OF
INDIVIDUALS.  SEE MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41,
51.  ARGUABLY, THESE SELECTIVE SERVICE BOARDS HAVE NO CLAIM TO THAT
KIND OF EXPERTISE.  BUT ASSUMING THAT THEY DO, THE PRESENT "LEGAL"
QUESTION IS TOO TRANSPARENT TO BE DIGNIFIED IN THAT MANNER. 

MR. JUSTICE WHITE, CONCURRING IN THE RESULT. 

THE COURT'S OPINION, AS I UNDERSTAND IT, DOES NOT DISPENSE WITH THE
NECESSITY OF PRESENTING AN ISSUE UNDER THE DRAFT LAWS TO THE
REGISTRANT'S LOCAL BOARD FOR CONSIDERATION IN THE FIRST INSTANCE. 
PETITIONER DID EXACTLY THIS, AND BY ITS DECISION, THE COURT PROVIDES NO
AVENUE FOR TOTALLY BYPASSING THE SELECTIVE SERVICE SYSTEM AND USING THE
COURTS AS AN ALTERNATIVE TO THE LOCAL DRAFT BOARDS.  ANY DECISION TO
THE CONTRARY WOULD BE INCONSISTENT WITH THE WELL-ESTABLISHED PRINCIPLE
THAT THE RESPONSIBLE ADMINISTRATIVE AGENCY MUST BE GIVEN "AN
OPPORTUNITY TO CONSIDER THE MATTER, MAKE ITS RULING, AND STATE THE
REASONS FOR ITS ACTION."  UNEMPLOYMENT COMPENSATION COMMISSION OF
ALASKA V. ARAGON, 329 U.S. 143, 155 (1946).  SEE GENERALLY 3 K.DAVIS,
ADMINISTRATIVE LAW TREATISE 20.06 (1958).  BUT PRESENTATION OF THE
ISSUE TO THE AGENCY FOR CONSIDERATION IN THE FIRST INSTANCE DOES NOT
COMPLETE THE LITIGANT'S TASK UNDER THE EXHAUSTION DOCTRINE IF HE WOULD
SEEK RESOLUTION OF THAT SAME ISSUE IN THE COURTS.  ON THE CONTRARY, HE
MUST RESORT TO APPELLATE REMEDIES AVAILABLE WITHIN THE AGENCY, AND ONLY
AFTER THOSE REMEDIES HAVE BEEN EXHAUSTED CAN HE TURN TO THE COURTS FOR
REVIEW.  SEE, E.G., UNITED STATES V. SING TUCK, 194 U.S. 161 (1904);
CHICAGO, M., ST. P. & P.R. CO. V. RISTY, 276 U.S. 567, 575 (1928). 

IT IS PETITIONER'S FAILURE TO EXHAUST APPELLATE REMEDIES AVAILABLE
WITHIN THE SELECTIVE SERVICE SYSTEM WHICH PRESENTS THE OBSTACLE TO THE
CHALLENGE OF HIS CLASSIFICATION IN THE COURTS.  AND WHILE THIS FACET OF
THE EXHAUSTION DOCTRINE, LIKE ITS OTHER FACETS, ADMITS OF EXCEPTIONS
WHEN SPECIAL CIRCUMSTANCES WARRANT, SEE E.G., DONATO V. UNITED STATES,
302 F.2D 468 (C.A. 9TH CIR. 1962), I CANNOT AGREE WITH THE COURT'S
APPARENT CONCLUSION THAT PETITIONER'S FAILURE TO EXHAUST APPELLATE
REMEDIES WITHIN THE SYSTEM CAN BE DISREGARDED ON THE BROADER GROUND
THAT ONLY A QUESTION OF LAW IS INVOLVED.  QUESTIONS OF LAW HAVE NOT, IN
THE PAST, BEEN THOUGHT TO BE IMMUNE FROM EXHAUSTION REQUIREMENTS.  SEE,
E.G., MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41 (1938). 
INDEED, THIS COURT HAS OFTEN EMPHASIZED THAT THE EXPERTISE OF THE
RESPONSIBLE AGENCY IS ENTITLED TO GREAT DEFERENCE IN MATTERS OF
STATUTORY CONSTRUCTION, /1/  SEE, E.G., UDALL V. TALLMAN, 380 U.S. 1,
16 (1965), THUS REFUTING ANY CONTENTION THAT QUESTIONS OF LAW ARE
SOMEHOW BEYOND THE EXPERTISE OF THE AGENCY AND DO NOT GIVE RISE TO THE
CONSIDERATIONS WHICH UNDERLIE THE EXHAUSTION DOCTRINE. 

ALTHOUGH I WOULD STOP FAR SHORT OF THE BROAD STROKES USED BY THE
COURT IN THIS RESPECT, I DO AGREE THAT PETITIONER'S FAILURE TO EXHAUST
APPELLATE REMEDIES DOES NOT BAR REVIEW OF HIS CLASSIFICATION ON THE
FACTS OF THIS CASE.  UNDOUBTEDLY, CONGRESS COULD REQUIRE SUCH
EXHAUSTION AS A PREREQUISITE TO JUDICIAL REVIEW, SEE, E.G., YAKUS V.
UNITED STATES, 321 U.S. 414 (1944), BUT CONGRESS HAS NOT CHOSEN TO DO
SO.  /2/  IN THE ABSENCE OF ANY SUCH REQUIREMENT, I DO NOT THINK REVIEW
OF PETITIONER'S CLASSIFICATION IS AN IMPERMISSIBLE ENCROACHMENT UPON
THE BAILIWICK OF THE SELECTIVE SERVICE SYSTEM.  WE ARE NOT FACED WITH A
SITUATION IN WHICH CONSIDERATION OF THE ISSUE INVOLVED HAS STOPPED AT
THE FIRST LEVEL OF THE ADMINISTRATIVE MACHINERY.  RATHER, PETITIONER'S
CASE AND THE SCOPE OF THE SEC. 6(O) EXEMPTION FOR SOLE SURVIVING SONS
HAVE RECEIVED THE ATTENTION OF BOTH THE STATE AND THE NATIONAL
DIRECTORS OF THE SELECTIVE SERVICE SYSTEM.  PETITIONER HAS NOT
EXHAUSTED THE CHANNELS FOR FORMAL APPELLATE REVIEW WITHIN THE SYSTEM,
BUT THE INFORMAL REVIEW GIVEN PETITIONER'S CASE AND THE RATIFICATION BY
THE STATE AND NATIONAL DIRECTORS OF THE POSITION TAKEN BY PETITIONER'S
LOCAL BOARD ARE SUFFICIENT JUSTIFICATION TO PERMIT THE COURTS TO
ENTERTAIN PETITIONER'S DEFENSE THAT HIS CLASSIFICATION IS IMPROPER
UNDER SEC. 6(O). 

/1/  THE FACT THAT THE RELEVANT STATUTE IS AMBIGUOUS OR UNCERTAIN,
E.G., LOGAN V. DAVIS, 233 U.S. 613, 627 (1914), OR THAT THE AGENCY'S
INTERPRETATION OF A STATUTE COMES WHILE ITS INTERRELATIONSHIP WITH THE
OTHER PARTS OF THE REGULATORY SCHEME IS AS YET "UNTRIED AND NEW,"
NORWEGIAN NITROGEN PRODS.  CO. V. UNITED STATES, 288 U.S. 294, 315
(1933), MAY ACCORD THE AGENCY INTERPRETATION OF THE STATUTE ADDITIONAL
SIGNIFICANCE.  AND SINCE THE CONSTRUCTION OF THE SOLE SURVIVING SON
EXEMPTION IS "ESSENTIALLY A QUESTION OF FIRST IMPRESSION," ANTE, AT
190, THE IMPORTANCE OF EXHAUSTION-- OR OF A FAILURE TO EXHAUST-- IS,
PERHAPS, ACCENTUATED IN THIS CASE.  ANY AMBIGUITY IN THE LANGUAGE AND
LEGISLATIVE HISTORY OF THE STATUTE, OR ANY QUESTION AS TO THE ROLE
WHICH SEC. 6(O) MUST PLAY IN THE STATUTORY SCHEME WOULD BE WELL SUITED
TO RESOLUTION BY THE SELECTIVE SERVICE SYSTEM IN THE FIRST INSTANCE. 
EXHAUSTION OF APPELLATE REMEDIES WITHIN THE SYSTEM WOULD HAVE AFFORDED
THAT AGENCY FULL OPPORTUNITY TO APPLY ITS EXPERTISE TO THESE AND OTHER
QUESTIONS, THEREBY FACILITATING THE DISCLOSURE OF FACTORS WHICH,
ALTHOUGH GERMANE, ARE NOT HIGHLY VISIBLE TO TRIBUNALS LESS FAMILIAR
WITH THE REGULATORY SCHEME. 

/2/  COMPARE FALBO V. UNITED STATES, 320 U.S. 549 (1944).  SECTION
10(B)(3) OF THE MILITARY SELECTIVE SERVICE ACT OF 1967, 81 STAT. 104,
PRESCRIBES THE TIMING OF JUDICIAL REVIEW-- "AFTER THE REGISTRANT HAS
RESPONDED EITHER AFFIRMATIVELY OR NEGATIVELY TO AN ORDER TO REPORT FOR
INDUCTION"-- BUT DOES NOT SPEAK TO THE EXHAUSTION QUESTION. 

IT SHOULD BE NOTED THAT WHERE AGENCY ORDERS ARE NOT SUSPENDED DURING
THE PENDENCY OF AN ADMINISTRATIVE APPEAL, CONGRESS HAS SEEN FIT TO
PERMIT JUDICIAL REVIEW WITHOUT EXHAUSTION OF APPELLATE REMEDIES. 
ADMINISTRATIVE PROCEDURE ACT SEC. 10(C), 5 U.S.C. 704 (1964 ED.,SUPP. 
III).  UNDER THAT SECTION, HOWEVER, IF THE AGENCY ACTION IS INOPERATIVE
DURING ADMINISTRATIVE REVIEW, THE AGENCY MAY REQUIRE EXHAUSTION BY ITS
OWN RULES.  SINCE INDUCTION MAY NOT BE ORDERED DURING A REGISTRANT'S
APPEAL, 32 CFR 1626.41, 1627.8 (1969), THE SELECTIVE SERVICE SYSTEM
COULD REQUIRE EXHAUSTION EVEN IF SUBJECT TO SEC. 10(C) OF THE APA.  THE
ADMINISTRATION OF THE DRAFT LAWS, HOWEVER, IS NOT COVERED BY THE APA,
AND THE NECESSITY FOR EXHAUSTING APPELLATE REMEDIES WOULD SEEM TO REST
ON THE GENERAL DOCTRINE DEVELOPED BY THE COURTS. 

GEORGE C. PONTIKES ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS MARSHALL PATNER. 

FRANCIS X. BEYTAGH, JR., ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL WILSON, BEATRICE ROSENBERG, AND LEONARD H. DICKSTEIN. 

..END :























PEREZ V. CALIFORNIA, 395 U.S. 208 


       PEREZ V. CALIFORNIA. 

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

        NO. 39.  ARGUED NOVEMBER 14, 1968.-- DECIDED MAY 26, 1969. 


65 CAL.2D 615, 422 P.2D 597, DISMISSED. 

PER CURIAM. 

THE WRIT IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS DISSENTS FROM THE DISMISSAL OF THE WRIT. 

PETER G. FETROS, BY APPOINTMENT OF THE COURT, 393 U.S. 812, ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

EDSEL W. HAWS, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND DORIS H. MAIER, ASSISTANT ATTORNEY GENERAL. 
..END :







MATTIELLO V. CONNECTICUT, 395 U.S. 209 


       MATTIELLO V. CONNECTICUT. 

        APPEAL FROM THE APPELLATE DIVISION OF THE CIRCUIT COURT OF

CONNECTICUT. 

        NO. 150.  ARGUED DECEMBER 11, 1968.-- DECIDED MAY 26,
1969. 


4 CONN.CIR.  55, 225 A.2D 507, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A PROPERLY PRESENTED FEDERAL
QUESTION. 

ROBERT N. GROSBY ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WAS JOSEPH D. HARBAUGH. 

GEORGE F. CARROLL, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLEE. 
..END :






BROTHERHOOD OF RAILROAD TRAINMEN V. O'CONNELL, 395 U.S. 210 


       BROTHERHOOD OF RAILROAD TRAINMEN ET AL. V. O'CONNELL ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 158.  ARGUED JANUARY 14, 1969.-- DECIDED MAY 26, 1969. 

         /1/ 


NO. 158, 391 F.2D 156; NO. 172, 391 F.2D 289, VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENTS ARE VACATED AND THE CASES ARE REMANDED TO THE
RESPECTIVE DISTRICT COURTS WITH INSTRUCTIONS TO DISMISS THE CASES AS
MOOT. 

/1/  TOGETHER WITH NO. 172, DIRKS ET AL. V. BIRKHOLZ ET AL., ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

ARNOLD B. ELKIND ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONERS
IN NO. 158.  DAVID LEO UELMEN ARGUED THE CAUSE FOR PETITIONERS IN NO.
172.  WITH HIM ON THE BRIEFS WERE DAVID PREVIANT, JOHN J. NAUGHTON,
JAMES P. REEDY, AND GERRY M. MILLER. 

LEE LEIBIK ARGUED THE CAUSE FOR RESPONDENTS IN EACH CASE.  WITH HIM
ON THE BRIEFS WAS RUTH WEYAND. 

HAROLD A. ROSS FILED BRIEFS FOR THE BROTHERHOOD OF LOCOMOTIVE
ENGINEERS AS AMICUS CURIAE URGING REVERSAL IN BOTH CASES. 

HAROLD C. HEISS FILED A BRIEF FOR THE BROTHERHOOD OF LOCOMOTIVE
FIREMEN & ENGINEMEN AS AMICUS CURIAE URGING AFFIRMANCE IN BOTH CASES. 
..END :














LOPO V. SAKS FIFTH AVENUE, 395 U.S. 211 


       LOPO V. SAKS FIFTH AVENUE. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 1257.  DECIDED MAY 26, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

ROBERT E. DUNNE FOR APPELLEE. 
..END :










SHAW V. CALIFORNIA, 395 U.S. 211 


       SHAW V. CALIFORNIA. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 1245.  DECIDED MAY 26, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

IRVING A. KANAREK FOR APPELLANT. 
..END :










EVERHARDT V. CITY OF NEW ORLEANS, 395 U.S. 212 


       EVERHARDT ET AL. V. CITY OF NEW ORLEANS ET AL.

      APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

 NO. 1284.  DECIDED MAY 26, 1969. 


253 LA. 285, 217 SO.2D 400, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

WILLIAM F. WESSEL FOR APPELLANTS. 

ALVIN J. LISKA FOR APPELLEES. 

JOHN A. ECKLER FILED A BRIEF FOR THE AMERICAN MOTORCYCLE ASSN. AS
AMICUS CURIAE. 
..END :







UNITED STATES V. KING, 395 U.S. 1 


       UNITED STATES V. KING. 

        CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

        NO. 672.  ARGUED APRIL 2, 1969.-- DECIDED MAY 19, 1969. 


THE JURISDICTION OF THE COURT OF CLAIMS IS LIMITED TO MONEY CLAIMS
AGAINST THE UNITED STATES AND THAT COURT DOES NOT HAVE THE AUTHORITY TO
ISSUE DECLARATORY JUDGMENTS.  PP. 2-5. 

182 CT.CL. 631, 390 F.2D 894, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

COLONEL JOHN P. KING, RESPONDENT, WAS RETIRED FROM THE ARMY FOR
LONGEVITY (LENGTH OF SERVICE) OVER HIS OBJECTION THAT HE SHOULD HAVE
BEEN RETIRED FOR PHYSICAL DISABILITY.  HAD HIS RETIREMENT BEEN BASED ON
DISABILITY, COLONEL KING WOULD HAVE BEEN ENTITLED TO AN EXEMPTION FROM
INCOME TAXATION ALLOWED BY SEC. 104(A)(4) OF THE INTERNAL REVENUE CODE
OF 1954, 26 U.S.C. 104(A)(4).  HE BROUGHT THIS ACTION IN THE COURT OF
CLAIMS ALLEGING THAT THE SECRETARY OF THE ARMY'S ACTION IN REJECTING
HIS DISABILITY RETIREMENT WAS ARBITRARY, CAPRICIOUS, NOT SUPPORTED BY
EVIDENCE, AND THEREFORE UNLAWFUL, AND ASKED FOR A JUDGMENT AGAINST THE
UNITED STATES FOR AN AMOUNT OF EXCESS TAXES HE HAD BEEN COMPELLED TO
PAY BECAUSE HE HAD BEEN RETIRED FOR LONGEVITY INSTEAD OF DISABILITY. 
THE COURT OF CLAIMS AGREED WITH THE UNITED STATES THAT THE CLAIM AS
FILED WAS BASICALLY ONE FOR A REFUND OF TAXES AND WAS THEREFORE BARRED
BY KING'S FAILURE TO ALLEGE THAT HE HAD FILED A TIMELY CLAIM FOR REFUND
AS REQUIRED BY 26 U.S.C. 7422(A).  IN THIS SITUATION, THE COURT
SUGGESTED TO COUNSEL THAT IT MIGHT HAVE JURISDICTION UNDER THE
DECLARATORY JUDGMENT ACT AND REQUESTED THAT BRIEFS AND ARGUMENTS ON
THIS POINT BE SUBMITTED TO THE COURT.  THIS WAS DONE.  THE COURT OF
CLAIMS, IN AN ILLUMINATING AND INTERESTING OPINION BY JUDGE DAVIS,
REACHED THE CONCLUSION THAT THE COURT COULD EXERCISE JURISDICTION UNDER
THE DECLARATORY JUDGMENT ACT, 28 U.S.C. 2201.  IN SO HOLDING, THE COURT
THEREBY REJECTED THE GOVERNMENT'S CONTENTIONS THAT THE DECLARATORY
JUDGMENT ACT DOES NOT APPLY TO THE COURT OF CLAIMS AND THAT THE COURT'S
JURISDICTION IS LIMITED TO ACTIONS ASKING FOR MONEY JUDGMENTS.  BY THIS
RULING THE COURT EXPRESSLY DECLINED TO FOLLOW A LONG LINE OF ITS OWN
DECISIONS BEGINNING WITH TWIN CITIES PROPERTIES, INC. V. UNITED STATES,
81 CT.CL. 655 (1935).  AS THE OPINION OF JUDGE DAVIS SHOWED, THE
QUESTION OF WHETHER THE COURT OF CLAIMS HAS JURISDICTION TO ISSUE
DECLARATORY JUDGMENTS IS BOTH SUBSTANTIAL AND IMPORTANT.  WE GRANTED
CERTIORARI TO DECIDE THAT QUESTION. 

THE COURT OF CLAIMS WAS ESTABLISHED BY CONGRESS IN 1855.  THROUGHOUT
ITS ENTIRE HISTORY UP UNTIL THE TIME THAT THIS CASE WAS FILED, ITS
JURISDICTION HAS BEEN LIMITED TO MONEY CLAIMS AGAINST THE UNITED STATES
GOVERNMENT.  IN 1868 THIS COURT HELD THAT "THE ONLY JUDGMENTS WHICH THE
COURT OF CLAIMS (IS) AUTHORIZED TO RENDER AGAINST THE GOVERNMENT . . .
ARE JUDGMENTS FOR MONEY FOUND DUE FROM THE GOVERNMENT TO THE
PETITIONER."  UNITED STATES V. ALIRE, 6 WALL.  573, 575.  IN UNITED
STATES V. JONES, 131 U.S. 1, THIS COURT REAFFIRMED THIS VIEW OF THE
LIMITED JURISDICTION OF THE COURT OF CLAIMS, AND HELD THAT THE PASSAGE
OF THE TUCKER ACT IN 1887 HAD NOT EXPANDED THAT JURISDICTION TO
EQUITABLE MATTERS.  MORE RECENTLY, IN 1962, IT WAS SAID IN THE
PREVAILING OPINION IN GLIDDEN CO. V. ZDANOK, 370 U.S. 530, 557, ON A
POINT NOT DISPUTED BY ANY OF THE OTHER MEMBERS OF THE COURT THAT "(FROM
THE BEGINNING (THE COURT OF CLAIMS) HAS BEEN GIVEN JURISDICTION ONLY TO
AWARD DAMAGES . . . " NO AMENDMENT PURPORTING TO INCREASE THE
JURISDICTION OF THE COURT OF CLAIMS HAS BEEN ENACTED SINCE THE DECISION
IN ZDANOK. 

THE FOREGOING CASES DECIDED BY THIS COURT THEREFORE CLEARLY SHOW
THAT NEITHER THE ACT CREATING THE COURT OF CLAIMS NOR ANY AMENDMENT TO
IT GRANTS THAT COURT JURISDICTION OF THIS PRESENT CASE.  THAT IS TRUE
BECAUSE COLONEL KING'S CLAIM IS NOT LIMITED TO ACTUAL, PRESENTLY DUE
MONEY DAMAGES FROM THE UNITED STATES.  BEFORE HE IS ENTITLED TO SUCH A
JUDGMENT HE MUST ESTABLISH IN SOME COURT THAT HIS RETIREMENT BY THE
SECRETARY OF THE ARMY FOR LONGEVITY WAS LEGALLY WRONG AND THAT HE IS
ENTITLED TO A DECLARATION OF HIS RIGHT TO HAVE HIS MILITARY RECORDS
CHANGED TO SHOW THAT HE WAS RETIRED FOR DISABILITY.  THIS IS
ESSENTIALLY EQUITABLE RELIEF OF A KIND THAT THE COURT OF CLAIMS HAS
HELD THROUGHOUT ITS HISTORY, UP TO THE TIME THIS PRESENT CASE WAS
DECIDED, THAT IT DOES NOT HAVE THE POWER TO GRANT. 

IT IS ARGUED, HOWEVER, THAT EVEN IF THE COURT OF CLAIMS ACT WITH ITS
AMENDMENTS DID NOT GRANT THAT COURT THE AUTHORITY TO ISSUE DECLARATORY
JUDGMENTS, IT WAS GIVEN THAT AUTHORITY BY THE DECLARATORY JUDGMENT ACT
OF 1934.  SUPPORT FOR THIS PROPOSITION IS DRAWN FROM THE LANGUAGE IN
THE DECLARATORY JUDGMENT ACT THAT "(IN A CASE OF ACTUAL CONTROVERSY
WITHIN ITS JURISDICTION . . . ANY COURT OF THE UNITED STATES . . . MAY
DECLARE THE RIGHTS AND OTHER LEGAL RELATIONS OF ANY INTERESTED PARTY
SEEKING SUCH DECLARATION."  THE FIRST ANSWER TO THIS CONTENTION IS
THAT, AS WE HAVE POINTED OUT, CASES SEEKING RELIEF OTHER THAN MONEY
DAMAGES FROM THE COURT OF CLAIMS HAVE NEVER BEEN "WITHIN ITS
JURISDICTION."  AND WE AGREE WITH THE OPINION OF THE COURT OF CLAIMS IN
THIS CASE THAT THE LEGISLATIVE HISTORY MATERIALS CONCERNING THE
APPLICATION OF THIS ACT TO THE COURT OF CLAIMS "ARE, AT BEST,
AMBIGUOUS."  FOR THE COURT BELOW, IT WAS SUFFICIENT THAT THERE WAS NO
CLEAR INDICATION THAT CONGRESS AFFIRMATIVELY INTENDED TO EXCLUDE THE
COURT OF CLAIMS FROM THE SCOPE OF THE DECLARATORY JUDGMENT ACT.  WE
THINK THAT THIS APPROACH RUNS COUNTER TO THE SETTLED PROPOSITIONS THAT
THE COURT OF CLAIMS' JURISDICTION TO GRANT RELIEF DEPENDS WHOLLY UPON
THE EXTENT TO WHICH THE UNITED STATES HAS WAIVED ITS SOVEREIGN IMMUNITY
TO SUIT AND THAT SUCH A WAIVER CANNOT BE IMPLIED BUT MUST BE
UNEQUIVOCALLY EXPRESSED.  UNITED STATES V. SHERWOOD, 312 U.S. 584. 
THIS WAS PRECISELY THE POSITION TAKEN BY THE COURT OF CLAIMS IN A LINE
OF ITS OWN DECISIONS BEGINNING WITH TWIN CITIES PROPERTIES, INC. V.
UNITED STATES, 81 CT.CL. 655 (1935).  IN THAT CASE, DECIDED SOON AFTER
THE PASSAGE OF THE DECLARATORY JUDGMENT ACT, THE COURT OF CLAIMS HELD
THAT IT WOULD REQUIRE A SPECIFIC AND EXPRESS STATUTE OF CONGRESS TO
GIVE THE COURT OF CLAIMS THE POWER TO ISSUE DECLARATORY JUDGMENTS.  THE
COURT OF CLAIMS SAID IN TWIN CITIES THAT: 

     "IF CONGRESS HAD INTENDED TO EXTEND THE SCOPE OF THIS COURT'S

  JURISDICTION AND SUBJECT THE UNITED STATES TO THE DECLARATORY

  JUDGMENT ACT, WE THINK EXPRESS LANGUAGE WOULD HAVE BEEN USED TO

  DO SO, AND THE COURT IS NOT WARRANTED IN ASSUMING AN INTENTION TO

  WIDEN ITS JURISDICTION FROM THE GENERAL PROVISIONS OF THE ACT

  WHICH CONCERNS A PROCEEDING EQUITABLE IN NATURE AND FOREIGN TO

  ANY JURISDICTION THIS COURT HAS HERETOFORE EXERCISED."  81

  CT.CL.,AT 658. 

WE THINK THAT THE EARLIER DECISIONS OF THE COURT OF CLAIMS AND THOSE
THAT HAVE CONSISTENTLY FOLLOWED THEM WERE CORRECT.  THERE IS NOT A
SINGLE INDICATION IN THE DECLARATORY JUDGMENT ACT OR ITS HISTORY THAT
CONGRESS, IN PASSING THAT ACT, INTENDED TO GIVE THE COURT OF CLAIMS AN
EXPANDED JURISDICTION THAT HAD BEEN DENIED TO IT FOR NEARLY A CENTURY. 
IN THE ABSENCE OF AN EXPRESS GRANT OF JURISDICTION FROM CONGRESS, WE
DECLINE TO ASSUME THAT THE COURT OF CLAIMS HAS BEEN GIVEN THE AUTHORITY
TO ISSUE DECLARATORY JUDGMENTS. 

              REVERSED. 

ASSISTANT ATTORNEY GENERAL RUCKELSHAUS ARGUED THE CAUSE FOR THE
UNITED STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
HARRIS WEINSTEIN, AND MORTON HOLLANDER. 

NEIL B. KABATCHNICK ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS RICHARD H. LOVE. 

WARNER W. GARDNER AND BENJAMIN W. BOLEY FILED A BRIEF FOR THE LINER
COUNCIL, AMERICAN INSTITUTE OF MERCHANT SHIPPING, AS AMICUS CURIAE. 
..END :


















LEARY V. UNITED STATES, 395 U.S. 6 


       LEARY V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 65.  ARGUED DECEMBER 11-12, 1968.-- DECIDED MAY 19,

           1969. 


PETITIONER, ACCOMPANIED BY HIS DAUGHTER, SON, AND TWO OTHERS, ON AN
AUTOMOBILE TRIP FROM NEW YORK TO MEXICO, AFTER APPARENT DENIAL OF ENTRY
INTO MEXICO, DROVE BACK ACROSS THE INTERNATIONAL BRIDGE INTO TEXAS,
WHERE A CUSTOMS OFFICER THROUGH A SEARCH DISCOVERED SOME MARIHUANA IN
THE CAR AND ON PETITIONER'S DAUGHTER'S PERSON.  PETITIONER WAS INDICTED
UNDER 26 U.S.C. 4744(A)(2), A SUBSECTION OF THE MARIHUANA TAX ACT, AND
UNDER 21 U.S.C. 176A.  AT PETITIONER'S TRIAL, WHICH RESULTED IN HIS
CONVICTION, PETITIONER ADMITTED ACQUIRING THE MARIHUANA IN NEW YORK
(BUT SAID HE DID NOT KNOW WHERE IT HAD BEEN GROWN) AND DRIVING WITH IT
TO LAREDO, TEXAS, THENCE TO THE MEXICAN CUSTOMS STATION, AND BACK TO
THE UNITED STATES.  THE MARIHUANA TAX ACT LEVIES AN OCCUPATIONAL TAX
UPON ALL THOSE WHO "DEAL IN" THE DRUG AND PROVIDES THAT THE TAXPAYER
MUST REGISTER HIS NAME AND PLACE OF BUSINESS WITH THE INTERNAL REVENUE
SERVICE.  THE ACT IMPOSES A TRANSFER TAX "UPON ALL TRANSFERS OF
MARIHUANA" REQUIRED TO BE EFFECTED WITH A WRITTEN ORDER FORM, AND ALL
EXCEPT A LIMITED NUMBER OF CLEARLY LAWFUL TRANSFERS MUST BE EFFECTED
WITH SUCH A FORM.  THE ACT FURTHER IMPOSES A TRANSFER TAX OF $1 PER
OUNCE ON A REGISTERED TRANSFEREE AND $100 PER OUNCE ON AN UNREGISTERED
TRANSFEREE.  THE FORMS, EXECUTED BY THE TRANSFEREE, MUST SHOW THE
TRANSFEROR'S NAME AND ADDRESS AND THE AMOUNT OF MARIHUANA INVOLVED.  A
COPY OF THE FORM IS "PRESERVED" BY THE INTERNAL REVENUE SERVICE AND THE
INFORMATION CONTAINED IN THE FORM IS MADE AVAILABLE TO LAW ENFORCEMENT
OFFICIALS.  POSSESSION OF MARIHUANA IS A CRIME IN TEXAS, WHERE
PETITIONER WAS ARRESTED, IN NEW YORK, WHERE PETITIONER ASSERTED THE
TRANSFER OCCURRED, AND IN ALL THE OTHER STATES.  SECTION 4744(A)(2)
PROHIBITS TRANSPORTATION OR CONCEALMENT OF MARIHUANA BY ONE WHO
ACQUIRED IT WITHOUT HAVING PAID THE TRANSFER TAX, WHICH PETITIONER
CONCEDED THAT HE HAD NOT DONE.  PETITIONER CLAIMED IN HIS MOTION FOR A
NEW TRIAL THAT HIS CONVICTION UNDER THE MARIHUANA TAX ACT VIOLATED HIS
PRIVILEGE AGAINST SELF-INCRIMINATION, AND HE ARGUES THAT THIS COURT'S
SUBSEQUENT DECISIONS IN MARCHETTI V. UNITED STATES, 390 U.S. 39, GROSSO
V. UNITED STATES, 390 U.S. 62, AND HAYNES V. UNITED STATES, 390 U.S.
85, REQUIRE REVERSAL.  THE GOVERNMENT CONTENDS THAT THE ACT'S TRANSFER
TAX PROVISIONS DO NOT COMPEL INCRIMINATORY DISCLOSURES BECAUSE, AS
ADMINISTRATIVELY CONSTRUED AND APPLIED, THEY PERMIT PREPAYMENT OF THE
TAX ONLY BY PERSONS WHOSE ACTIVITIES ARE OTHERWISE LAWFUL.  TITLE 21
U.S.C. 176A MAKES IT A CRIME TO TRANSPORT OR FACILITATE THE
TRANSPORTATION OF ILLEGALLY IMPORTED MARIHUANA, WITH KNOWLEDGE OF ITS
ILLEGAL IMPORTATION, AND PROVIDES THAT A DEFENDANT'S POSSESSION OF
MARIHUANA SHALL BE DEEMED SUFFICIENT EVIDENCE THAT THE MARIHUANA WAS
ILLEGALLY IMPORTED OR BROUGHT INTO THE UNITED STATES, AND THAT THE
DEFENDANT KNEW OF THE ILLEGAL IMPORTATION OR BRINGING IN, UNLESS THE
DEFENDANT EXPLAINS HIS POSSESSION TO THE SATISFACTION OF THE JURY.  THE
TRIAL COURT INSTRUCTED THE JURY THAT IT MIGHT FIND PETITIONER GUILTY OF
VIOLATING SEC. 176A, (1) SOLELY ON PETITIONER'S TESTIMONY THAT THE
MARIHUANA HAD BEEN BROUGHT BACK FROM MEXICO INTO THE UNITED STATES AND
THAT WITH KNOWLEDGE OF THAT FACT PETITIONER HAD CONTINUED TO TRANSPORT
IT, OR (2) PARTLY UPON HIS TESTIMONY THAT HE HAD TRANSPORTED THE
MARIHUANA FROM NEW YORK TO TEXAS AND PARTLY UPON THE SEC. 176A
PRESUMPTION.  PETITIONER CONTENDS THAT APPLICATION OF THAT PRESUMPTION
DENIED HIM DUE PROCESS OF LAW.  HELD: 

1.  PETITIONER'S INVOCATION OF THE PRIVILEGE AGAINST SELF
INCRIMINATION UNDER THE FIFTH AMENDMENT PROVIDED A FULL DEFENSE TO THE
CHARGE UNDER 26 U.S.C. 4744(A)(2).  PP. 12-29. 

(A) SINCE THE EFFECT OF THE ACT'S TERMS WERE SUCH THAT LEGAL
POSSESSORS OF MARIHUANA WERE VIRTUALLY CERTAIN TO BE REGISTRANTS OR
EXEMPT FROM THE ORDER FORM REQUIREMENT, COMPLIANCE WITH THE TRANSFER
TAX PROVISIONS WOULD HAVE REQUIRED PETITIONER AS ONE NOT REGISTERED BUT
OBLIGED TO OBTAIN AN ORDER FORM UNMISTAKABLY TO IDENTIFY HIMSELF AS A
MEMBER OF A "SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL
ACTIVITIES," AND THUS THOSE PROVISIONS CREATED A "REAL AND APPRECIABLE"
HAZARD OF INCRIMINATION WITHIN THE MEANING OF MARCHETTI, GROSSO, AND
HAYNES.  PP. 16-18. 

(B) IT IS CLEAR FROM BOTH THE LANGUAGE OF THE ACT AND ITS
LEGISLATIVE HISTORY THAT, CONTRARY TO THE INTERPRETATION WHICH THE
GOVERNMENT WOULD GIVE TO THE TRANSFER PROVISIONS, CONGRESS INTENDED
THAT A NONREGISTRANT SHOULD BE ABLE TO OBTAIN AN ORDER FORM AND PREPAY
THE TRANSFER TAX.  PP. 18-26. 

(C) SINCE THE ACT WAS CLEARLY AIMED AT BRINGING TO LIGHT VIOLATIONS
OF THE MARIHUANA LAWS, THIS COURT WILL NOT IMPOSE RESTRICTIONS UPON THE
USE OF INFORMATION REVEALED BY THE TRANSFER PROVISIONS IN ORDER TO
AVOID THE CONSTITUTIONAL ISSUE.  PP. 26-27. 

(D) PETITIONER'S CLAIM OF THE PRIVILEGE WAS TIMELY AND, UNDER THE
CIRCUMSTANCES OF THIS CASE, HIS FAILURE TO ASSERT THE PRIVILEGE AT THE
TRIAL (WHICH ANTEDATED THIS COURT'S DECISIONS IN MARCHETTI, GROSSO, AND
HAYNES) DID NOT CONSTITUTE A WAIVER.  PP. 27-28. 

(E) BY TAKING THE STAND PETITIONER WAIVED HIS RIGHT TO REMAIN SILENT
AT TRIAL BUT NOT, AS THE COURT OF APPEALS ERRONEOUSLY HELD, HIS RIGHT
TO PLEAD THAT THE ACT VIOLATED THE PRIVILEGE AGAINST SELF
INCRIMINATION; NOR WAS THE LATTER RIGHT WAIVED BY HIS TESTIFYING THAT
HIS NONCOMPLIANCE WITH THE ACT HAD A RELIGIOUS MOTIVATION, SINCE OTHER
PARTS OF HIS TESTIMONY INDICATED THAT HE WAS ALSO INFLUENCED BY AN
APPREHENSION THAT BY TRYING TO PAY THE TAX HE MIGHT INCRIMINATE
HIMSELF.  PP. 27-29. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, THE APPLICATION OF THAT PART
OF THE PRESUMPTION IN 21 U.S.C. 176A WHICH PROVIDES THAT A POSSESSOR OF
MARIHUANA IS DEEMED TO KNOW OF ITS UNLAWFUL IMPORTATION DENIED
PETITIONER DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AMENDMENT.  PP.
29-53. 

(A) THE JURY, UNDER THE TRIAL COURT'S INSTRUCTIONS, MIGHT HAVE
CONVICTED PETITIONER WITH THE AID OF THE SEC. 176A PRESUMPTION, AND
PETITIONER IS NOT FORECLOSED FROM CHALLENGING THE CONSTITUTIONALITY OF
THAT PRESUMPTION BECAUSE THE JURY MIGHT HAVE BASED ITS VERDICT ON THE
ALTERNATIVE THEORY IN THOSE INSTRUCTIONS WHICH DID NOT REST UPON THAT
PRESUMPTION.  WHEN A CASE IS SUBMITTED TO THE JURY ON ALTERNATIVE
THEORIES, THE UNCONSTITUTIONALITY OF ANY OF THE THEORIES REQUIRES THAT
THE CONVICTION BE SET ASIDE.  SEE STROMBERG V. CALIFORNIA, 283 U.S.
359.  PP. 30-32. 

(B) A CRIMINAL STATUTORY PRESUMPTION MUST BE REGARDED AS
"IRRATIONAL" OR "ARBITRARY," AND HENCE UNCONSTITUTIONAL, UNLESS IT CAN
BE SAID WITH SUBSTANTIAL ASSURANCE THAT THE PRESUMED FACT IS MORE
LIKELY THAN NOT TO FLOW FROM THE PROVED FACT ON WHICH IT IS MADE TO
DEPEND.  TOT V. UNITED STATES, 319 U.S. 463.  PP. 32-36. 

(C) EVEN IF IT ASSUMED THAT THE GREAT PREPONDERANCE OF MARIHUANA
USED IN THE UNITED STATES IS SMUGGLED FROM MEXICO AND THAT THE
INFERENCE OF ILLEGAL IMPORTATION IS THEREFORE JUSTIFIED, IT DOES NOT
UNDER THE TOT TEST FOLLOW (SINCE A SIGNIFICANT AMOUNT MAY NOT HAVE BEEN
IMPORTED AT ALL) THAT A MAJORITY OF MARIHUANA POSSESSORS "KNOW" THAT
THEIR MARIHUANA WAS ILLEGALLY IMPORTED, AND THE INFERENCE OF KNOWLEDGE
IS THEREFORE IMPERMISSIBLE UNLESS IT APPEARS ON THE BASIS OF AVAILABLE
MATERIALS THAT MOST SUCH POSSESSORS ARE AWARE EITHER OF THE HIGH RATE
OF IMPORTATION OR THAT THEIR MARIHUANA WAS GROWN ABROAD.  PP. 39-47. 

(D) A POSSESSOR OF MARIHUANA MIGHT "KNOW" THAT HIS MARIHUANA CAME
FROM ABROAD IN ANY ONE OF FIVE WAYS:  (1) HE MIGHT BE AWARE OF THE
PROPORTION OF DOMESTICALLY CONSUMED MARIHUANA SMUGGLED FROM ABROAD AND
DEDUCE THAT HIS WAS ILLEGALLY IMPORTED; (2) HE MIGHT HAVE SMUGGLED IT
HIMSELF; (3) HE MIGHT HAVE LEARNED INDIRECTLY THAT THE MARIHUANA
SUPPLIED IN HIS LOCALITY CAME FROM ABROAD; (4) HE MIGHT HAVE SPECIFIED
FOREIGN MARIHUANA WHEN MAKING HIS PURCHASE; (5) HE MIGHT BE ABLE TO
TELL THE SOURCE OF THE MARIHUANA FROM ITS APPEARANCE, PACKAGING, OR
TASTE.  NEITHER THE LEGISLATIVE RECORD NOR OTHER SOURCES ESTABLISH WITH
SUBSTANTIAL ASSURANCE THAT EVEN A MAJORITY OF MARIHUANA POSSESSORS HAVE
LEARNED THE SOURCE OF THEIR MARIHUANA IN ONE OR MORE OF THESE WAYS. 
PP. 47-52. 

383 F.2D 851, 392 F.2D 220, REVERSED IN PART AND REVERSED AND
REMANDED IN PART. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS CONSTITUTIONAL QUESTIONS ARISING OUT OF THE
CONVICTION OF THE PETITIONER, DR. TIMOTHY LEARY, FOR VIOLATION OF TWO
FEDERAL STATUTES GOVERNING TRAFFIC IN MARIHUANA. 

THE CIRCUMSTANCES SURROUNDING PETITIONER'S CONVICTION WERE AS
FOLLOWS.  ON DECEMBER 20, 1965, PETITIONER LEFT NEW YORK BY AUTOMOBILE,
INTENDING A VACATION TRIP TO YUCATAN, MEXICO.  HE WAS ACCOMPANIED BY
HIS DAUGHTER AND SON, BOTH TEENAGERS, AND TWO OTHER PERSONS.  ON
DECEMBER 22, 1965, THE PARTY DROVE ACROSS THE INTERNATIONAL BRIDGE
BETWEEN THE UNITED STATES AND MEXICO AT LAREDO, TEXAS.  THEY STOPPED AT
THE MEXICAN CUSTOMS STATION AND, AFTER APPARENTLY BEING DENIED ENTRY,
DROVE BACK ACROSS THE BRIDGE.  THEY HALTED AT THE AMERICAN SECONDARY
INSPECTION AREA, EXPLAINED THE SITUATION TO A CUSTOMS INSPECTOR, AND
STATED THAT THEY HAD NOTHING FROM MEXICO TO DECLARE.  THE INSPECTOR
ASKED THEM TO ALIGHT, EXAMINED THE INTERIOR OF THE CAR, AND SAW WHAT
APPEARED TO BE MARIHUANA SEEDS ON THE FLOOR.  THE INSPECTOR THEN
RECEIVED PERMISSION TO SEARCH THE CAR AND PASSENGERS.  SMALL AMOUNTS OF
MARIHUANA WERE FOUND ON THE CAR FLOOR AND IN THE GLOVE COMPARTMENT.  A
PERSONAL SEARCH OF PETITIONER'S DAUGHTER REVEALED A SILVER SNUFF BOX
CONTAINING SEMI-REFINED MARIHUANA AND THREE PARTIALLY SMOKED MARIHUANA
CIGARETTES. 

PETITIONER WAS INDICTED AND TRIED BEFORE A JURY IN THE FEDERAL
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, ON THREE COUNTS. 
FIRST, IT WAS ALLEGED THAT HE HAD KNOWINGLY SMUGGLED MARIHUANA INTO THE
UNITED STATES, IN VIOLATION OF 21 U.S.C. 176A.  /1/  SECOND, IT WAS
CHARGED THAT HE HAD KNOWINGLY TRANSPORTED AND FACILITATED THE
TRANSPORTATION AND CONCEALMENT OF MARIHUANA WHICH HAD BEEN ILLEGALLY
IMPORTED OR BROUGHT INTO THE UNITED STATES, WITH KNOWLEDGE THAT IT HAS
BEEN ILLEGALLY IMPORTED OR BROUGHT IN, ALL AGAIN IN VIOLATION OF SEC.
176A.  /2/  THIRD, IT WAS ALLEGED THAT PETITIONER WAS A TRANSFEREE OF
MARIHUANA AND HAD KOWINGLY TRANSPORTED, CONCEALED, AND FACILITATED THE
TRANSPORTATION AND CONCEALMENT OF MARIHUANA, WITHOUT HAVING PAID THE
TRANSFER TAX IMPOSED BY THE MARIHUANA TAX ACT, 26 U.S.C. 4741 ET SEQ.,
THEREBY VIOLATING 26 U.S.C. 4744(A)(2).  /3/ 

AFTER BOTH SIDES HAD PRESENTED THEIR EVIDENCE AND THE DEFENSE HAD
MOVED FOR A JUDGMENT OF ACQUITTAL, THE DISTRICT COURT DISMISSED THE
FIRST OR SMUGGLING COUNT.  /4/  THE JURY FOUND PETITIONER GUILTY ON THE
OTHER TWO COUNTS.  HE WAS TENTATIVELY SENTENCED TO THE MAXIMUM
PUNISHMENT, PENDING COMPLETION OF A STUDY AND RECOMMENDATIONS TO BE
USED BY THE DISTRICT COURT IN FIXING HIS FINAL SENTENCE.  /5/  ON
APPEAL, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  383 F.2D
851 (1967).  THAT COURT SUBSEQUENTLY DENIED A PETITION FOR REHEARING
AND REHEARING EN BANC.  392 F.2D 220 (1968). 

WE GRANTED CERTIORARI, 392 U.S. 903 (1968), TO CONSIDER TWO QUESTIONS:
(1) WHETHER PETITIONER'S CONVICTION FOR FAILING TO COMPLY WITH THE
TRANSFER TAX PROVISIONS OF THE MARIHUANA TAX ACT VIOLATED HIS FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION; (2) WHETHER PETITIONER
WAS DENIED DUE PROCESS BY THE APPLICATION OF THE PART OF 21 U.S.C. 176A
WHICH PROVIDES THAT A DEFENDANT'S POSSESSION OF MARIHUANA SHALL BE
DEEMED SUFFICIENT EVIDENCE THAT THE MARIHUANA WAS ILLEGALLY IMPORTED OR
BROUGHT INTO THE UNITED STATES, AND THAT THE DEFENDANT KNEW OF THE
ILLEGAL IMPORTATION OR BRINGING IN, UNLESS THE DEFENDANT EXPLAINS HIS
POSSESSION TO THE SATISFACTION OF THE JURY.  FOR REASONS WHICH FOLLOW,
WE HOLD IN FAVOR OF THE PETITIONER ON BOTH ISSUES AND REVERSE THE
JUDGMENT OF THE COURT OF APPEALS. 

        I. 

WE CONSIDER FIRST PETITIONER'S CLAIM THAT HIS CONVICTION UNDER THE
MARIHUANA TAX ACT VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. 

        A. 

PETITIONER ARGUES THAT REVERSAL OF HIS MARIHUANA TAX ACT CONVICTION
IS REQUIRED BY OUR DECISIONS OF LAST TERM IN MARCHETTI V. UNITED
STATES, 390 U.S. 39 (1968), GROSSO V. UNITED STATES, 390 U.S. 62
(1968), AND HAYNES V. UNITED STATES, 390 U.S. 85 (1968).  IN MARCHETTI,
WE HELD THAT A PLEA OF THE FIFTH AMENDMENT PRIVILEGE PROVIDED A
COMPLETE DEFENSE TO A PROSECUTION FOR FAILURE TO REGISTER AND PAY THE
OCCUPATIONAL TAX ON WAGERS, AS REQUIRED BY 26 U.S.C. 4411-4412.  WE
NOTED THAT WAGERING WAS A CRIME IN ALMOST EVERY STATE, AND THAT 26
U.S.C. 6107 REQUIRED THAT LISTS OF WAGERING TAXPAYERS BE FURNISHED TO
STATE AND LOCAL PROSECUTORS ON DEMAND.  WE CONCLUDED THAT COMPLIANCE
WITH THE STATUTE WOULD HAVE SUBJECTED PETITIONER TO A "'REAL AND
APPRECIABLE'"  /6/  RISK OF SELF-INCRIMINATION.  WE FURTHER RECOGNIZED
THAT THE OCCUPATIONAL TAX WAS NOT IMPOSED IN "'AN ESSENTIALLY NON
CRIMINAL AND REGULATORY AREA . . . ,'" 390 U.S.,AT 57, /7/  BUT WAS
"DIRECTED TO A 'SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL
ACTIVITIES.'"  /8/  WE FOUND THAT IT WOULD BE INAPPROPRIATE TO IMPOSE
RESTRICTIONS ON USE OF THE INFORMATION COLLECTED UNDER THE STATUTE-- A
COURSE URGED BY THE GOVERNMENT AS A MEANS OF REMOVING THE IMPACT OF THE
STATUTE UPON THE PRIVILEGE AGAINST SELF-INCRIMINATION-- BECAUSE OF THE
EVIDENT CONGRESSIONAL PURPOSE TO PROVIDE AID TO PROSECUTORS.  WE NOTED
THAT, UNLIKE THE PETITIONER IN SHAPIRO V. UNITED STATES, 335 U.S. 1
(1948), MARCHETTI WAS NOT REQUIRED TO SUPPLY INFORMATION WHICH HAD A
"PUBLIC ASPECT" OR WAS CONTAINED IN RECORDS OF THE KIND HE CUSTOMARILY
KEPT. 

IN GROSSO, WE HELD THAT THE SAME CONSIDERATIONS REQUIRED THAT A
CLAIM OF THE PRIVILEGE BE A DEFENSE TO PROSECUTION UNDER 26 U.S.C.
4401, WHICH IMPOSES AN EXCISE TAX ON PROCEEDS FROM WAGERING.  AND IN
HAYNES WE HELD FOR THE SAME REASONS THAT ASSERTION OF THE FIFTH
AMENDMENT PRIVILEGE PROVIDED A DEFENSE TO PROSECUTION FOR POSSESSION OF
AN UNREGISTERED WEAPON UNDER THE NATIONAL FIREARMS ACT, 26 U.S.C. 5851,
DESPITE THE FACT THAT IN "UNCOMMON" INSTANCES REGISTRATION UNDER THE
STATUTE WOULD NOT BE INCRIMINATING.  SEE 390 U.S.,AT 96-97, 99. 

        B. 

IN ORDER TO UNDERSTAND PETITIONER'S CONTENTION THAT COMPLIANCE WITH
THE MARIHUANA TAX ACT WOULD HAVE OBLIGED HIM TO INCRIMINATE HIMSELF
WITHIN THE MEANING OF THE FOREGOING DECISIONS, IT IS NECESSARY TO BE
FAMILIAR WITH THE STATUTORY SCHEME.  THE MARIHUANA TAX ACT HAS TWO MAIN
SUBPARTS.  THE FIRST IMPOSES A TAX ON TRANSFERS OF MARIHUANA, THE
SECOND ON OCCUPATIONAL TAX UPON THOSE WHO DEAL IN THE DRUG.  IT IS
CONVENIENT TO BEGIN WITH THE OCCUPATIONAL TAX PROVISIONS, 26 U.S.C.
4751-4753. 

BE SUBJECT TO AN ANNUAL OCCUPATIONAL TAX.  SUBSECTIONS REQUIRE THAT
SPECIFIED CATEGORIES OF PERSONS, SUCH AS IMPORTERS, PRODUCERS,
PHYSICIANS, RESEARCHERS, AND MILLERS PAY VARYING RATES OF TAX PER
YEAR.  SEE SECS. 4751(1)-(4),(6).  PERSONS WHO "DEAL IN" MARIHUANA BUT
DO NOT FALL INTO ANY OF THE SPECIFIED CATEGORIES ARE REQUIRED TO PAY $3
PER YEAR.  SEE SEC. 4751(5).  SECTION 4753 PROVIDES THAT AT THE TIME OF
PAYING THE TAX THE TAXPAYER MUST "REGISTER HIS NAME OR STYLE AND HIS
PLACE OR PLACES OF BUSINESS" AT THE NEAREST DISTRICT OFFICE OF THE
INTERNAL REVENUE SERVICE. 

THE FIRST OF THE TRANSFER TAX PROVISIONS, 26 U.S.C. 4741, IMPOSES A
TAX "UPON ALL TRANSFERS OF MARIHUANA WHICH ARE REQUIRED BY SECTION 4742
TO BE CARRIED OUT IN PURSUANCE OF WRITTEN ORDER FORMS."  SECTION 4741
FURTHER PROVIDES THAT ON TRANSFERS TO PERSONS REGISTERED UNDER SEC.
4753 THE TAX IS $1 PER OUNCE, WHILE ON TRANSFERS TO PERSONS NOT SO
REGISTERED THE TAX IS $100 PER OUNCE.  THE TAX IS REQUIRED TO BE PAID
BY THE TRANSFEREE "AT THE TIME OF SECURING EACH ORDER FORM."  /9/  WITH
CERTAIN EXCEPTIONS NOT HERE RELEVANT, /10/  SEC. 4742 MAKES IT UNLAWFUL
FOR ANY PERSON, "WHETHER OR NOT REQUIRED TO PAY A SPECIAL TAX AND
REGISTER UNDER SECTIONS 4751 TO 4753," TO TRANSFER MARIHUANA EXCEPT
PURSUANT TO A WRITTEN ORDER FORM TO BE OBTAINED BY THE TRANSFEREE.  A
REGULATION, 26 CFR 152.69, PROVIDES THAT THE ORDER FORM MUST SHOW THE
NAME AND ADDRESS OF THE TRANSFEROR AND TRANSFEREE; THEIR SEC. 4753
REGISTRATION NUMBERS, IF THEY ARE REGISTERED; AND THE QUANTITY OF
MARIHUANA TRANSFERRED.  ANOTHER REGULATION, 26 CFR 152.66, REQUIRES THE
TRANSFEREE TO SUBMIT AN APPLICATION CONTAINING THESE DATA IN ORDER TO
OBTAIN THE FORM.  SECTION 4742(D) OF THE ACT REQUIRES THE INTERNAL
REVENUE SERVICE TO "PRESERVE" IN ITS RECORDS A DUPLICATE COPY OF EACH
ORDER FORM WHICH IT ISSUES. 

ANOTHER STATUTORY PROVISION, 26 U.S.C. 4773, ASSURES THAT THE
INFORMATION CONTAINED IN THE ORDER FORM WILL BE AVAILABLE TO LAW
ENFORCEMENT OFFICIALS.  THAT SECTION PROVIDES THAT THE DUPLICATE ORDER
FORMS REQUIRED TO BE KEPT BY THE INTERNAL REVENUE SERVICE SHALL BE OPEN
TO INSPECTION BY TREASURY PERSONNEL AND STATE AND LOCAL OFFICIALS
CHARGED WITH ENFORCEMENT OF MARIHUANA LAWS, AND THAT UPON PAYMENT OF A
FEE SUCH OFFICIALS SHALL BE FURNISHED COPIES OF THE FORMS.  /11/ 

FINALLY, 26 U.S.C. 4744(A) MAKES IT UNLAWFUL FOR A TRANSFEREE
REQUIRED TO PAY THE SEC. 4741(A) TRANSFER TAX EITHER TO ACQUIRE
MARIHUANA WITHOUT HAVING PAID THE TAX OR TO TRANSPORT, CONCEAL, OR
FACILITATE THE TRANSPORTATION OR CONCEALMENT OF, ANY MARIHUANA SO
ACQUIRED.  /12/  PETITIONER WAS CONVICTED UNDER SEC. 4744(A).  HE
CONCEDED AT TRIAL THAT HE HAD NOT OBTAINED AN ORDER FORM OR PAID THE
TRANSFER TAX. 

        C. 

IF READ ACCORDING TO ITS TERMS, THE MARIHUANA TAX ACT COMPELLED
PETITIONER TO EXPOSE HIMSELF TO A "REAL AND APPRECIABLE" RISK OF SELF
INCRIMINATION, WITHIN THE MEANING OF OUR DECISIONS IN MARCHETTI,
GROSSO, AND HAYNES.  SECTIONS 4741-4742 REQUIRED HIM, IN THE COURSE OF
OBTAINING AN ORDER FORM, TO IDENTIFY HIMSELF NOT ONLY AS A TRANSFEREE
OF MARIHUANA BUT AS A TRANSFEREE WHO HAD NOT REGISTERED AND PAID THE
OCCUPATIONAL TAX UNDER SECS. 4751-4753.  SECTION 4773 DIRECTED THAT
THIS INFORMATION BE CONVEYED BY THE INTERNAL REVENUE SERVICE TO STATE
AND LOCAL LAW ENFORCEMENT OFFICIALS ON REQUEST. 

PETITIONER HAD AMPLE REASON TO FEAR THAT TRANSMITTAL TO SUCH
OFFICIALS OF THE FACT THAT HE WAS A RECENT, UNREGISTERED TRANSFEREE OF
MARIHUANA "WOULD SURELY PROVE A SIGNIFICANT 'LINK IN A CHAIN' OF
EVIDENCE TENDING TO ESTABLISH HIS GUILT"  /13/  UNDER THE STATE
MARIHUANA LAWS THEN IN EFFECT.  /14/  WHEN PETITIONER FAILED TO COMPLY
WITH THE ACT, IN LATE 1965, POSSESSION OF ANY QUANTITY OF MARIHUANA WAS
APPARENTLY A CRIME IN EVERY ONE OF THE 50 STATES, INCLUDING NEW YORK,
WHERE PETITIONER CLAIMED THE TRANSFER OCCURRED, AND TEXAS, WHERE HE WAS
ARRESTED AND CONVICTED.  /15/  IT IS TRUE THAT ALMOST ALL STATES,
INCLUDING NEW YORK AND TEXAS, HAD EXCEPTIONS MAKING LAWFUL, UNDER
SPECIFIED CONDITIONS, POSSESSION OF MARIHUANA BY:  (1) STATE-LICENSED
MANUFACTURERS AND WHOLESALERS; (2) APOTHECARIES; (3) RESEARCHERS; (4)
PHYSICIANS, DENTISTS, VETERINARIANS, AND CERTAIN OTHER MEDICAL
PERSONNEL; (5) AGENTS OR EMPLOYEES OF THE FOREGOING PERSONS OR COMMON
CARRIERS; (6) PERSONS FOR WHOM THE DRUG HAD BEEN PRESCRIBED OR TO WHOM
IT HAD BEEN GIVEN BY AN AUTHORIZED MEDICAL PERSON; AND (7) CERTAIN
PUBLIC OFFICIALS.  /16/  HOWEVER, INDIVIDUALS IN THE FIRST FOUR OF
THESE CLASSES ARE AMONG THOSE COMPELLED TO REGISTER AND PAY THE
OCCUPATIONAL TAX UNDER SECS. 4751-4753; /17/  IN CONSEQUENCE OF HAVING
REGISTERED, THEY ARE REQUIRED TO PAY ONLY A $1 PER OUNCE TRANSFER TAX
UNDER SEC. 4741(A)(1).  IT IS EXTREMELY UNLIKELY THAT SUCH PERSONS WILL
REMAIN UNREGISTERED, FOR FAILURE TO REGISTER RENDERS THEM LIABLE NOT
ONLY TO AN ADDITIONAL $99 PER OUNCE TRANSFER TAX BUT ALSO TO SEVERE
CRIMINAL PENALTIES.  /18/  PERSONS IN THE LAST THREE CLASSES MENTIONED
ABOVE APPEAR TO BE WHOLLY EXEMPT FROM THE ORDER FORM AND TRANSFER TAX
REQUIREMENTS.  /19/ 

THUS, AT THE TIME PETITIONER FAILED TO COMPLY WITH THE ACT THOSE
PERSONS WHO MIGHT LEGALLY POSSESS MARIHUANA UNDER STATE LAW WERE
VIRTUALLY CERTAIN EITHER TO BE REGISTERED UNDER SEC. 4753 OR TO BE
EXEMPT FROM THE ORDER FORM REQUIREMENT.  IT FOLLOWS THAT THE CLASS OF
POSSESSORS WHO WERE BOTH UNREGISTERED AND OBLIGED TO OBTAIN AN ORDER
FORM CONSTITUTED A "SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL
ACTIVITIES."  SINCE COMPLIANCE WITH THE TRANSFER TAX PROVISIONS WOULD
HAVE REQUIRED PETITIONER UNMISTAKABLY TO IDENTIFY HIMSELF AS A MEMBER
OF THIS "SELECTIVE" AND "SUSPECT" GROUP, WE CAN ONLY DECIDE THAT WHEN
READ ACCORDING TO THEIR TERMS THESE PROVISIONS CREATED A "REAL AND
APPRECIABLE" HAZARD OF INCRIMINATION. 

    D. 

THE GOVERNMENT, HOWEVER, VIGOROUSLY CONTENDS THAT WHEN THE ACT IS
CONSIDERED TOGETHER WITH THE ACCOMPANYING REGULATIONS, AND IN LIGHT OF
EXISTING ADMINISTRATIVE PRACTICE, ITS INCRIMINATORY ASPECT WILL BE SEEN
TO VANISH OR SHRINK TO LESS THEN CONSTITUTIONAL PROPORTIONS.  THE
GOVERNMENT POINTS FIRST TO REGULATIONS, 26 CFR 152.22, 152.23, ADDED IN
1964, WHICH PROVIDE THAT EVERY APPLICANT FOR REGISTRATION UNDER SECS.
4751-4753 MUST SHOW THAT HE IS LEGALLY QUALIFIED TO DEAL IN MARIHUANA
ACCORDING TO THE LAWS OF THE JURISDICTION IN WHICH HE IS OPERATING, AND
THAT THE DISTRICT DIRECTOR SHALL NOT PERMIT AN APPLICANT TO REGISTER
UNTIL THE DIRECTOR IS SATISFIED THAT THIS IS TRUE.  THE GOVERNMENT THEN
CITES TWO OTHER REGULATIONS, RELATING TO APPLICATIONS FOR ORDER FORMS
UNDER SEC. 4742.  THE FIRST, 26 CFR 152.67, PROVIDES THAT SUCH
APPLICATIONS "(GENERALLY . . . SHALL BE SIGNED BY THE SAME PERSON OR
PERSONS SIGNING THE APPLICATION FOR REGISTRATION," BUT WHEN THIS IS
IMPRACTICABLE "THEY MAY BE SIGNED BY ANOTHER PERSON, PROVIDED A POWER
OF ATTORNEY AUTHORIZING SUCH OTHER PERSON TO SIGN THE APPLICATIONS . .
. HAS PREVIOUSLY BEEN FILED . . . "  THE SECOND REGULATION, 26 CFR
152.68, STATES THAT UPON RECEIPT OF AN APPLICATION THE DISTRICT
DIRECTOR "SHALL" COMPARE THE SIGNATURE ON THE APPLICATION "WITH THAT
APPEARING ON THE APPLICATION FOR REGISTRATION OR IN THE POWER OF
ATTORNEY," AND THAT "(UNLESS THE DISTRICT DIRECTOR IS SATISFIED THAT
THE APPLICATION IS AUTHENTIC IT WILL NOT BE HONORED."     THE
GOVERNMENT ASSERTS THAT THESE REGULATIONS CLEARLY SIGNIFY THAT NO
PERSON WILL BE PERMITTED TO REGISTER UNLESS HIS ACTIVITIES ARE
PERMISSIBLE UNDER THE LAW OF HIS JURISDICTION, AND THAT NO ONE WILL BE
PERMITTED TO OBTAIN AN ORDER FORM AND PREPAY THE TRANSFER TAX UNLESS HE
HAS REGISTERED.  /20/  THE RESULT, THE GOVERNMENT CONTENDS, IS SIMPLY
TO PROHIBIT NONREGISTRANTS LIKE PETITIONER FROM DEALING IN MARIHUANA AT
ALL.  THE GOVERNMENT FURTHER ASSERTS THAT THE ADMINISTRATIVE PRACTICE
OF THE INTERNAL REVENUE SERVICE AND THE BUREAU OF NARCOTICS HAS ALWAYS
BEEN CONSISTENT WITH THIS INTERPRETATION, THOUGH IT CONCEDES THAT THERE
APPARENTLY HAS NEVER BEEN AN ATTEMPT BY A NONREGISTRANT TO PREPAY THE
TAX.  THE GOVERNMENT DOES ADMIT UNCERTAINTY AS TO WHETHER THE FACT OF
SUCH AN ATTEMPT WOULD HAVE BEEN COMMUNICATED TO LAW ENFORCEMENT
OFFICIALS; HOWEVER, IT POINTS OUT THAT NOTHING IN THE STATUTE OR
REGULATIONS APPEARS TO COMPEL SUCH DISCLOSURE.  /21/  THE GOVERNMENT
ARGUES THAT THE REGULATIONS AND ADMINISTRATIVE PRACTICE EFFECTIVELY
REFUTE THE EXISTENCE OF A SUBSTANTIAL HAZARD OF INCRIMINATION AT THE
TIME PETITIONER ACQUIRED MARIHUANA:  FIRST, BECAUSE A NONREGISTRANT
WOULD HAVE KNOWN THAT HE COULD NOT OBTAIN AN ORDER FORM AND
CONSEQUENTLY NEVER WOULD HAVE APPLIED; SECOND, BECAUSE THERE WAS NO
SUBSTANTIAL RISK THAT AN UNSUCCESSFUL APPLICATION WOULD HAVE BEEN
BROUGHT TO THE ATTENTION OF LAW ENFORCEMENT OFFICIALS. 

WE CANNOT ACCEPT THE GOVERNMENT'S ARGUMENT, FOR WE FIND THAT CONGRESS
DID INTEND THAT A NONREGISTRANT SHOULD BE ABLE TO OBTAIN AN ORDER FORM
AND PREPAY THE TRANSFER TAX.  THIS CONGRESSIONAL INTENT APPEARS BOTH
FROM THE LANGUAGE OF THE ACT AND FROM ITS LEGISLATIVE HISTORY. 

WE BEGIN WITH THE WORDS OF THE STATUTE.  SECTION 4741(A), WHEN READ
IN CONJUNCTION WITH SEC. 4742, IMPOSES A TAX UPON EVERY TRANSFER OF
MARIHUANA, WITH A FEW EXCEPTIONS NOT HERE RELEVANT.  /22/  SECTION
4741(A)(1) STATES THAT THE TAX ON REGISTRANTS SHALL BE $1 PER OUNCE AND
SEC. 4741(A)(2) THAT THE TAX ON TRANSFERS TO NONREGISTRANTS SHALL BE
$100 PER OUNCE.  SECTION 4741(B) STATES THAT "(SUCH TAX SHALL BE PAID
BY THE TRANSFEREE AT THE TIME OF SECURING EACH ORDER FORM AND SHALL BE
IN ADDITION TO THE PRICE OF SUCH FORM."  SINCE SEC. 4741(B) MAKES NO
DISTINCTION BETWEEN THE SEC. 4741(A)(1) TAX ON TRANSFERS TO REGISTRANTS
AND THE SEC. 4741(A)(2) TAX ON TRANSFERS TO NONREGISTRANTS, IT SEEMS
CLEAR THAT CONGRESS CONTEMPLATED THAT NONREGISTRANT AS WELL AS
REGISTRANT TRANSFEREES SHOULD BE ABLE TO OBTAIN ORDER FORM AND PREPAY
THE TAX. 

THE LEGISLATIVE HISTORY ALSO STRONGLY INDICATES THAT THE ACT WAS
INTENDED MERELY TO IMPOSE A VERY HIGH TAX ON TRANSFERS TO
NONREGISTRANTS AND NOT TO PROHIBIT SUCH TRANSFERS ENTIRELY.  AS A
TAXING MEASURE, THE BILL OF COURSE ORIGINATED IN THE HOUSE OF
REPRESENTATIVES.  AT THE START OF THE FIRST HEARING ON THE BILL BEFORE
THE HOUSE WAYS AND MEANS COMMITTEE, THE COMMITTEE CHAIRMAN ANNOUNCED
THAT HE INTRODUCED THE BILL AT THE REQUEST OF THE SECRETARY OF THE
TREASURY.  /23/  THE TRANSFER PROVISIONS OF THE BILL THEN READ
ESSENTIALLY AS THEY DO NOW.  /24/  THE FIRST WITNESS TO APPEAR BEFORE
THE COMMITTEE WAS THE TREASURY DEPARTMENT'S ASSISTANT GENERAL COUNSEL,
CLINTON M. HESTER.  HE BEGAN BY STATING THAT THE BILL'S PURPOSE WAS
"NOT ONLY TO RAISE REVENUE FROM THE MARIHUANA TRAFFICBUT ALSO TO
DISCOURAGE THE CURRENT AND WIDESPREAD UNDESIRABLE USE OF MARIHUANA BY
SMOKERS AND DRUG ADDICTS . . . "  /25/  HE STATED THAT IN FORM THE BILL
WAS A "SYNTHESIS" OF THE HARRISON NARCOTICS ACT, NOW 26 U.S.C. 4701 ET
SEQ., AND THE NATIONAL FIREARMS ACT, NOW 26 U.S.C. 5801 ET SEQ.  /26/
BOTH OF THESE STATUTES COMPELLED DEALERS IN THE RESPECTIVE GOODS TO
REGISTER AND PAY A SPECIAL TAX.  BOTH PROHIBITED TRANSFER EXCEPT IN
PURSUANCE OF A WRITTEN FORM AND IMPOSED A TRANSFER TAX.  HOWEVER, THE
TRANSFER PROVISIONS DIFFERED IN THAT THE NARCOTICS ACT PROVIDED THAT NO
ONE EXCEPT A REGISTRANT COULD LEGALLY OBTAIN AN ORDER FORM, SEE 26
U.S.C. 4705(G), WHILE THE FIREARMS ACT MERELY IMPOSED A $200 TAX UPON
EACH TRANSFER OF A FIREARM COVERED BY THE ACT. 

THE TREASURY WITNESS EXPLAINED THAT THE MARIHUANA TAX BILL GENERALLY
FOLLOWED THE PLAN OF THE NARCOTICS ACT INSOFAR AS IT REQUIRED DEALERS
IN MARIHUANA TO REGISTER AND PROHIBITED TRANSFERS EXCEPT BY ORDER
FORM.  BUT HE TESTIFIED THAT BECAUSE OF CONSTITUTIONAL DOUBTS: 

"(AT THIS POINT, THIS BILL, LIKE THE NATIONAL FIREARMS ACT, DEPARTS
FROM THE PLAN OF THE HARRISON NARCOTIC ACT WHICH LIMITS THE RIGHT TO
PURCHASE NARCOTIC DRUGS TO THOSE PERSONS WHO ARE PERMITTED TO REGISTER
UNDER THAT ACT.  . . . 

     "(IN ORDER TO OBVIATE THE POSSIBILITY OF (AN) ATTACK UPON THE

  CONSTITUTIONALITY OF THIS BILL, IT, LIKE THE NATIONAL FIREARMS

  ACT, PERMITS THE TRANSFER OF MARIHUANA TO NONREGISTERED PERSONS

  UPON THE PAYMENT OF A HEAVY TRANSFER TAX.  THE BILL WOULD PERMIT

  THE TRANSFER OF MARIHUANA TO ANYONE, BUT WOULD IMPOSE A $100 PER

  OUNCE TAX UPON A TRANSFER TO A PERSON WHO MIGHT USE IT FOR

  PURPOSES WHICH ARE DANGEROUS AND HARMFUL TO THE PUBLIC . . . "

  /27/ 

MR. HESTER WAS ALSO THE FIRST WITNESS BEFORE A SUBCOMMITTEE OF THE
SENATE FINANCE COMMITTEE.  THERE HE TESTIFIED IN LESS DETAIL, STATING
AT DIFFERENT POINTS THAT THE PURPOSE OF THE TRANSFER PROVISIONS WAS "TO
DISCOURAGE THE WIDESPREAD USE OF THE DRUG BY SMOKERS AND DRUG ADDICTS,"
/28/  "TO RENDER EXTREMELY DIFFICULT THE ACQUISITION OF MARIHUANA BY
PERSONS WHO DESIRE IT FOR ILLICIT USES,"  /29/  "TO PREVENT TRANSFERS
TO PERSONS WHO WOULD USE MARIHUANA FOR UNDESIRABLE PURPOSES,"  /30/
AND "THROUGH THE $100 TRANSFER TAX TO PREVENT THE DRUG FROM COMING INTO
THE HANDS OF THOSE WHO WILL PUT IT TO ILLICIT USES."  /31/ 

THE HOUSE AND SENATE REPORTS DESCRIBE THE PURPOSES OF THE TRANSFER
PROVISIONS LARGELY IN THE LANGUAGE OF MR. HESTER'S TESTIMONY.  THE
HOUSE REPORT DECLARES THAT THE PURPOSE WAS "TO DISCOURAGE THE
WIDESPREAD USE OF THE DRUG BY SMOKERS AND DRUG ADDICTS,"  /32/  TO
"RENDER EXTREMELY DIFFICULT THE ACQUISITION OF MARIHUANA BY PERSONS WHO
DESIRE IT FOR ILLICIT USES,"  /33/  AND "THROUGH THE $100 TRANSFER TAX
TO PREVENT THE DRUG FROM COMING INTO THE HANDS OF THOSE WHO WILL PUT IT
TO ILLICIT USES."  /34/  IN DISCUSSING THE ISSUE OF CONSTITUTIONALITY,
THE REPORT RECITES THAT "(THE LAW IS . . . SETTLED THAT CONGRESS HAS
THE POWER TO ENACT A TAX WHICH IS SO HEAVY AS TO DISCOURAGE THE
TRANSACTIONS OR ACTIVITIES TAXED"  /35/  AND STATES THAT "(THESE CASES
SUSTAIN THE $100 TAX IMPOSED . . . UPON TRANSFERS . . . TO UNREGISTERED
PERSONS."  /36/  THE SENATE REPORT, WITHOUT DISCUSSING
CONSTITUTIONALITY, OTHERWISE STATES THE PURPOSE OF THE TRANSFER
PROVISIONS IN THE VERY SAME WORDS AS THE HOUSE REPORT.  /37/  THUS, THE
COMMITTEE REPORTS CONFIRM MR. HESTER'S ACCOUNT OF THE BILL'S PURPOSES. 
IN SHORT, THE LEGISLATIVE HISTORY FULLY ACCORDS WITH THE STATUTORY
LANGUAGE. 

UPON THIS EVIDENCE, WE HAVE NO HESITATION IN CONCLUDING THAT THE
INTERPRETATION WHICH THE GOVERNMENT WOULD GIVE TO THE TRANSFER
PROVISIONS IS, CONTRARY TO THE MANIFEST CONGRESSIONAL INTENT THAT
TRANSFERS TO NONREGISTRANTS BE TAXED, NOT FORBIDDEN.  INSOFAR AS THE
REGULATIONS WHICH REQUIRE COMPARISON OF SIGNATURE NECESSARILY COMPEL
THE RESULT URGED BY THE GOVERNMENT, THEY MUST BE REGARDED AS CONTRARY
TO THE STATUTE AND HENCE BEYOND THE SCOPE OF THE REGULATION-MAKING
AUTHORITY WHICH WAS DELEGATED BY CONGRESS.  /38/  IT IS TRUE THAT THESE
REGULATIONS WERE PROMULGATED IN 1937, AND THAT CONGRESS RE-ENACTED THE
ENTIRE ACT IN 1954, WHILE THEY WERE IN EFFECT.  HOWEVER, THE SCANTY
LEGISLATIVE HISTORY ACCOMPANYING THAT RE-ENACTMENT GIVES NO HINT THAT
CONGRESS KNEW OF THESE PARTICULAR REGULATIONS, MUCH LESS OF THE
INDIRECT IMPACT WHICH THE GOVERNMENT NOW ASCRIBES TO THEM.  /39/  AS WE
RECENTLY NOTED IN MASSACHUSETTS TRUSTEES V. UNITED STATES, 377 U.S.
235, 241, 242 (1964), CONGRESSIONAL RE-ENACTMENT OF A STATUTE, EVEN
WITHOUT ANY APPARENT KNOWLEDGE OF A PARTICULAR REGULATION, CAN
"STRENGTHEN TO SOME EXTENT" THE REGULATION'S CLAIM TO VALIDITY, BUT RE
ENACTMENT CANNOT SAVE A REGULATION WHICH "CONTRADICTS) THE
REQUIREMENTS" OF THE STATUTE ITSELF.  WHEN A REGULATION CONFLICTS WITH
THE STATUTE, THE FACT OF SUBSEQUENT RE-ENACTMENT "IS IMMATERIAL, FOR
CONGRESS COULD NOT ADD TO OR EXPAND (THE) STATUTE BY IMPLIEDLY
APPROVING THE REGULATION."  COMMISSIONER V. ACKER, 361 U.S. 87, 93
(1959).  /40/ 

NOR ARE WE PERSUADED BY THE GOVERNMENT'S ARGUMENT THAT ITS
CONSTRUCTION HAS BEEN FOLLOWED BY THE INTERNAL REVENUE SERVICE AND THE
BUREAU OF NARCOTICS EVER SINCE THE PASSAGE OF THE ACT, AND THAT THIS
"LONG-STANDING" INTERPRETATION BY THE AGENCIES CHARGED WITH
ADMINISTERING THE ACT SHOULD BE CONTROLLING.  WE HAVE OFTEN RECOGNIZED
THAT, AS A GENERAL MATTER, A LONG-STANDING, CONTEMPORANEOUS
CONSTRUCTION OF A STATUTE BY THE ADMINISTERING AGENCIES IS "ENTITLED TO
GREAT WEIGHT," FTC V. MANDEL BROS., 359 U.S. 385, 391 (1959), AND WILL
BE 'SHOWN) GREAT DEFERENCE," UDALL V. TALLMAN, 380 U.S. 1, 16 (1965). 
/41/  HOWEVER, IN THIS INSTANCE THE GOVERNMENT ADMITS THAT UNTIL OUR
DECISIONS LAST TERM IN MARCHETTI, GROSSO, AND HAYNES, THE ALLEGED
INTERPRETATION HAD BEEN MADE KNOWN ONLY THROUGH THE REGULATIONS
THEMSELVES, SINCE THERE APPARENTLY HAD NEVER BEEN AN APPLICATION BY A
NONREGISTRANT TO PREPAY THE TRANSFER TAX.  MOREOVER, IN ITS BRIEF IN
THIS COURT IN UNITED STATES V. SANCHEZ, 340 U.S. 42 (1950), THE UNITED
STATES PLAINLY TOOK THE POSITION THAT THE ACT IMPOSED ONLY A TAX AND
NOT A PROHIBITION ON TRANSFERS TO NONREGISTRANTS, /42/  IMPLYING THAT
AT THAT TIME THE ALLEGED ADMINISTRATIVE CONSTRUCTION WAS UNKNOWN EVEN
TO THOSE CHARGED WITH REPRESENTING THE UNITED STATES IN THIS COURT.  IN
THESE CIRCUMSTANCES, THE ALLEGED ADMINISTRATIVE CONSTRUCTION CAN
FURNISH NO ADDITIONAL SUPPORT FOR THE GOVERNMENT'S ARGUMENT. 

THE FOREGOING SHOWS THAT AT THE TIME PETITIONER ACQUIRED MARIHUANA
HE WAS CONFRONTED WITH A STATUTE WHICH ON ITS FACE PERMITTED HIM TO
ACQUIRE THE DRUG LEGALLY, PROVIDED HE PAID THE $100 PER OUNCE TRANSFER
TAX AND GAVE INCRIMINATING INFORMATION, AND SIMULTANEOUSLY WITH A
SYSTEM OF REGULATIONS WHICH, ACCORDING TO THE GOVERNMENT, PROHIBITED
HIM FROM ACQUIRING MARIHUANA UNDER ANY CONDITIONS.  WE HAVE FOUND THOSE
REGULATIONS SO OUT OF KEEPING WITH THE STATUTE AS TO BE ULTRA VIRES. 
FACED WITH THESE CONFLICTING COMMANDS, WE THINK PETITIONER WOULD HAVE
BEEN JUSTIFIED IN GIVING PRECEDENCE TO THE HIGHER AUTHORITY:  THE
STATUTE.  /43/  "'(LITERAL AND FULL COMPLIANCE' WITH ALL THE STATUTORY
REQUIREMENTS"  /44/  WOULD HAVE ENTAILED A VERY SUBSTANTIAL RISK OF
SELF-INCRIMINATION.  SEE SUPRA, AT 16-18. 

THE UNITED STATES HAS NOT URGED US, AS IT DID IN MARCHETTI, GROSSO,
AND HAYNES, TO AVOID THIS CONSTITUTIONAL DIFFICULTY BY PLACING
RESTRICTIONS UPON THE USE OF INFORMATION GAINED UNDER THE TRANSFER
PROVISIONS.  WE DECLINED TO IMPOSE USE RESTRICTIONS IN THOSE CASES
BECAUSE WE FOUND THAT THE FURNISHING OF INFORMATION TO INTERESTED
PROSECUTORS WAS A "SIGNIFICANT ELEMENT OF CONGRESS' PURPOSES IN
ADOPTING" THE STATUTES THERE INVOLVED.  MARCHETTI V. UNITED STATES,
SUPRA, AT 59 (1968).  /45/  THE TEXT AND LEGISLATIVE HISTORY OF THE
MARIHUANA TAX ACT PLAINLY DISCLOSE A SIMILAR CONGRESSIONAL PURPOSE.  AS
HAS BEEN NOTED, 26 U.S.C. 4773 REQUIRES THAT COPIES OF ORDER FORMS BE
KEPT AVAILABLE FOR INSPECTION BY STATE AND LOCAL OFFICIALS, AND THAT
COPIES BE FURNISHED TO SUCH OFFICIALS ON REQUEST.  THE HOUSE AND SENATE
REPORTS BOTH STATE THAT ONE OBJECTIVE OF THE ACT WAS "THE DEVELOPMENT
OF AN ADEQUATE MEANS OF PUBLICIZING DEALINGS IN MARIHUANA IN ORDER TO
TAX AND CONTROL THE TRAFFIC EFFECTIVELY."  /46/  IN SHORT, WE THINK THE
CONCLUSION INESCAPABLE THAT THE STATUTE WAS AIMED AT BRINGING TO LIGHT
TRANSGRESSIONS OF THE MARIHUANA LAWS.  HENCE, AS IN LAST TERM'S CASES,
WE DECLINE TO IMPOSE USE RESTRICTIONS AND ARE OBLIGED TO CONCLUDE THAT
A TIMELY AND PROPER ASSERTION OF THE PRIVILEGE SHOULD HAVE PROVIDED A
COMPLETE DEFENSE TO PROSECUTION UNDER SEC. 4744(A)(2). 

    E. 

THERE REMAIN THE FURTHER QUESTIONS WHETHER THIS PETITIONER'S CLAIM
OF THE PRIVILEGE WAS TIMELY AND WHETHER IT WAS WAIVED.  AS FOR
TIMELINESS, PETITIONER DID NOT ASSERT THE PRIVILEGE AS A DEFENSE TO THE
SEC. 4744(A) COUNT UNTIL HIS MOTION FOR A NEW TRIAL.  THE COURT OF
APPEALS EVIDENTLY REGARDED THE CLAIM AS TIMELY, FOR IT REJECTED IT ON
THE MERITS BOTH IN ITS ORIGINAL OPINION AND IN ITS DENIAL OF
REHEARING.  SEE 383 F.2D, AT 870; 392 F.2D, AT 221-222.  THE GOVERNMENT
DOES NOT CONTEND THAT THE CLAIM OF THE PRIVILEGE WAS UNTIMELY. 
PETITIONER'S TRIAL OCCURRED BEFORE OUR DECISIONS IN MARCHETTI, GROSSO,
AND HAYNES, AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAD RECENTLY
REJECTED AN IDENTICAL SELF-INCRIMINATION CLAIM.  SEE HAYNES V. UNITED
STATES, 339 F.2D 30 (1964).  ALTHOUGH IT WOULD HAVE BEEN PREFERABLE FOR
PETITIONER TO HAVE ASSERTED THE PRIVILEGE AT TRIAL, WE HOLD THAT IN THE
CIRCUMSTANCES OF THIS CASE HIS FAILURE TO RAISE THE ISSUE AT THAT TIME
DID NOT AMOUNT TO A WAIVER OF THE PRIVILEGE.  SEE GROSSO V. UNITED
STATES, 390 U.S. 62, 70-71 (1968). 

IN DENYING LEARY'S PETITION FOR REHEARING, THE COURT OF APPEALS, IN
ADDITION TO HOLDING THE PRIVILEGE GENERALLY INAPPLICABLE TO
PROSECUTIONS UNDER SEC. 4744(A), FOUND THAT PETITIONER'S CLAIM OF THE
PRIVILEGE WAS IMPROPER BECAUSE HE "TOOK THE STAND AND AFFIRMATIVELY
WAIVED THE PRIVILEGE . . . BY TESTIFYING FULLY TO THE DETAILS OF HIS
ACQUISITION AND TRANSPORTATION OF MARIHUANA WITHOUT HAVING PAID THE TAX
. . . " 392 F.2D, AT 222.  IN RELYING FOR THAT PROPOSITION ON THE
STATEMENT IN MARCHETTI THAT OUR DECISION IN THAT CASE WOULD NOT PROVIDE
A SHIELD FOR ANY TAXPAYER WHO WAS "OUTSIDE THE PRIVILEGE'S PROTECTION,"
390 U.S.,AT 61, WE THINK THE COURT OF APPEALS MISCONCEIVED THE THRUST
OF THAT DICTUM.  THE ASPECT OF THE SELF-INCRIMINATION PRIVILEGE WHICH
WAS INVOLVED IN MARCHETTI, AND WHICH PETITIONER ASSERTS HERE, IS NOT
THE UNDOUBTED RIGHT OF AN ACCUSED TO REMAIN SILENT AT TRIAL.  IT IS
INSTEAD THE RIGHT NOT TO BE CRIMINALLY LIABLE FOR ONE'S PREVIOUS
FAILURE TO OBEY A STATUTE WHICH REQUIRED AN INCRIMINATORY ACT.  THUS,
PETITIONER IS NOT ASSERTING THAT HE HAD A RIGHT TO STAND MUTE AT HIS
TRIAL BUT THAT HE CANNOT BE CONVICTED FOR HAVING FAILED TO COMPLY WITH
THE TRANSFER PROVISIONS OF THE ACT AT THE TIME HE ACQUIRED MARIHUANA IN
1965.  HIS ADMISSION AT TRIAL THAT HE HAD INDEED FAILED TO COMPLY WITH
THE STATUTE WAS PERFECTLY CONSISTENT WITH THE CLAIM THAT THAT OMISSION
WAS EXCUSED BY THE PRIVILEGE.  HENCE, IT COULD NOT AMOUNT TO A WAIVER
OF THAT CLAIM. 

THE GOVERNMENT SUGGESTS THAT PETITIONER WAIVED HIS RIGHT TO PLEAD
SELF-INCRIMINATION IN YET ANOTHER WAY, BY TESTIFYING AT TRIAL THAT HE
HAD VIOLATED THE STATUTE FOR REASONS ENTIRELY UNRELATED TO FEAR OF SELF
INCRIMINATION.  IT IS TRUE THAT SOME PORTIONS OF PETITIONER'S TESTIMONY
INDICATE THAT HIS NONCOMPLIANCE WAS MOTIVATED, AT LEAST IN PART, BY HIS
CONVICTION THAT THE ACT IMPOSED AN ILLEGAL TAX UPON RELIGION OR UPON
THE "PURSUIT OF KNOWLEDGE"  /47/  AND BY HIS BELIEF THAT, IN
CONSEQUENCE OF THE SYSTEM OF REGULATIONS AND ADMINISTRATIVE PRACTICE
DESCRIBED ABOVE, HE WOULD NOT BE PERMITTED TO PAY THE TAX.  /48/
HOWEVER, OTHER PARTS OF PETITIONER'S TESTIMONY CLEARLY INDICATE THAT HE
ALSO WAS INFLUENCED BY AN APPREHENSION THAT BY TRYING TO PAY THE TAX HE
MIGHT INCRIMINATE HIMSELF.  /49/  WE CANNOT SAY THAT PETITIONER'S
TESTIMONY, TAKEN AS A WHOLE, AMOUNTED PRIVILEGE WAS PROPER AND THAT IT
SHOULD HAVE PROVIDED A FULL DEFENSE TO THE THIRD COUNT OF THE
INDICTMENT.  ACCORDINGLY, WE REVERSE PETITIONER'S CONVICTION UNDER 26
U.S.C. 4744(A)(2). 

        II. 

NEXT, WE CONSIDER WHETHER, IN THE CIRCUMSTANCES OF THIS CASE, THE
APPLICATION OF THE PRESUMPTION CONTAINED IN 21 U.S.C. 176A DENIED
PETITIONER DUE PROCESS OF LAW. 

        A. 

INSOFAR AS HERE RELEVANT, SEC. 176A IMPOSES CRIMINAL PUNISHMENT UPON
EVERY PERSON WHO: 

"KNOWINGLY, WITH INTENT TO DEFRAUD THE UNITED STATES, IMPORTS OR
BRINGS INTO THE UNITED STATES MARIHUANA CONTRARY TO LAW . . . , OR
RECEIVES, CONCEALS, BUYS, SELLS, OR IN ANY MANNER FACILITATES THE
TRANSPORTATION, CONCEALMENT, OR SALE OF SUCH MARIHUANA AFTER BEING
IMPORTED OR BROUGHT IN, KNOWING THE SAME TO HAVE BEEN IMPORTED OR
BROUGHT INTO THE UNITED STATES CONTRARY TO LAW . . . " 

A SUBSEQUENT PARAGRAPH ESTABLISHES THE PRESUMPTION NOW UNDER
SCRUTINY: 

     "WHENEVER ON TRIAL FOR A VIOLATION OF THIS SUBSECTION, THE

  DEFENDANT IS SHOWN TO HAVE OR TO HAVE HAD THE MARIHUANA IN HIS

  POSSESSION, SUCH POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE

  TO AUTHORIZE CONVICTION UNLESS THE DEFENDANT EXPLAINS HIS

  POSSESSION TO THE SATISFACTION OF THE JURY." 

THE SECOND COUNT OF THE INDICTMENT CHARGED PETITIONER WITH HAVING
VIOLATED THE "TRANSPORTATION" AND "CONCEALMENT" PROVISIONS OF SEC.
176A.  /50/  PETITIONER ADMITTED AT TRIAL THAT HE HAD ACQUIRED
MARIHUANA IN NEW YORK; HAD DRIVEN WITH IT TO LAREDO, TEXAS; HAD
CONTINUED ACROSS THE BRIDGE TO THE MEXICAN CUSTOMS STATION; AND THEN
HAD RETURNED TO THE UNITED STATES.  HE FURTHER TESTIFIED THAT HE DID
NOT KNOW WHERE THE MARIHUANA HE ACQUIRED HAD BEEN GROWN.  /51/ 

IN VIEW OF THIS TESTIMONY, THE TRIAL COURT INSTRUCTED THE JURY THAT
IT MIGHT FIND PETITIONER GUILTY OF VIOLATING SEC. 176A ON EITHER OF TWO
ALTERNATIVE THEORIES.  UNDER THE FIRST OR "SOUTH-NORTH" THEORY, A
CONVICTION COULD HAVE BEEN BASED SOLELY UPON PETITIONER'S OWN TESTIMONY
THAT THE MARIHUANA HAD BEEN BROUGHT BACK FROM MEXICO INTO THE UNITED
STATES AND THAT WITH KNOWLEDGE OF THAT FACT PETITIONER HAD CONTINUED TO
TRANSPORT IT.  UNDER THE SECOND OR "NORTH-SOUTH" THEORY, THE CONVICTION
WOULD HAVE DEPENDED PARTLY UPON PETITIONER'S TESTIMONY THAT HE HAD
TRANSPORTED THE MARIHUANA FROM NEW YORK TO TEXAS AND PARTLY UPON THE
CHALLENGED PRESUMPTION.  /52/ 

THE GOVERNMENT CONTENDS THAT BY GIVING TESTIMONY AT TRIAL WHICH
ESTABLISHED ALL ELEMENTS OF THE OFFENSE UNDER THE "SOUTH-NORTH" THEORY,
AND BY FAILING TO OBJECT TO THE JURY INSTRUCTIONS ON THE GROUND NOW
ADVANCED, PETITIONER FORECLOSED HIMSELF FROM RAISING THE POINT
THEREAFTER.  WE CANNOT AGREE.  EVEN ASSUMING THAT PETITIONER'S
TESTIMONY DID SUPPLY ALL THE EVIDENCE REQUIRED FOR A VALID CONVICTION
UNDER THE "SOUTH-NORTH" THEORY, THE JURY NEVERTHELESS WAS TOLD THAT IT
COULD ALTERNATIVELY CONVICT WITH THE AID OF THE PRESUMPTION UNDER THE
"NORTH-SOUTH" THEORY.  FOR ALL WE KNOW, THE CONVICTION DID REST ON THAT
GROUND.  IT HAS LONG BEEN SETTLED THAT WHEN A CASE IS SUBMITTED TO THE
JURY ON ALTERNATIVE THEORIES THE UNCONSTITUTIONALITY OF ANY OF THE
THEORIES REQUIRES THAT THE CONVICTION BE SET ASIDE.  SEE, E.G.,
STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931). 

IT IS TRUE THAT PETITIONER DID NOT OBJECT TO THE JURY INSTRUCTIONS
ON THE BASIS OF THE PRESUMPTION'S ALLEGED UNCONSTITUTIONALITY.  /53/
HOWEVER, HE DID RELY UPON THAT GROUND IN HIS PREVIOUS MOTION FOR A
DIRECTED VERDICT AT THE CLOSE OF THE PROSECUTION'S CASE, AND URGED IT
AGAIN IN HIS SUBSEQUENT MOTION FOR A NEW TRIAL.  /54/  BOTH MOTIONS
WERE DENIED.  THE COURT OF APPEALS CONSIDERED PETITIONER'S
CONSTITUTIONAL ARGUMENT ON THE MERITS, AND REJECTED IT.  SEE 383 F.2D,
AT 868-870.  IN THESE CIRCUMSTANCES, WE CONCLUDE THAT THE QUESTION IS
PROPERLY BEFORE US.  /55/

        B. 

BY WHAT CRITERIA IS THE CONSTITUTIONALITY OF THE SEC. 176A
PRESUMPTION TO BE JUDGED? 

EARLY DECISIONS OF THIS COURT SET FORTH A NUMBER OF DIFFERENT
STANDARDS BY WHICH TO MEASURE THE VALIDITY OF STATUTORY PRESUMPTIONS. 
/56/  HOWEVER, IN TOT V. UNITED STATES, 319 U.S. 463 (1943), THE COURT
SINGLED OUT ONE OF THESE TESTS AS CONTROLLING, AND THE TOT RULE HAS
BEEN ADHERED TO IN THE TWO SUBSEQUENT CASES IN WHICH THE ISSUE HAS BEEN
PRESENTED.  THE TOT COURT HAD BEFORE IT A FEDERAL STATUTE /57/  WHICH,
AS CONSTRUED, MADE IT A CRIME FOR ONE PREVIOUSLY CONVICTED OF A CRIME
OF VIOLENCE TO RECEIVE ANY FIREARM OR AMMUNITION IN AN INTERSTATE
TRANSACTION.  THE STATUTE FURTHER PROVIDED THAT "THE POSSESSION OF A
FIREARM OR AMMUNITION BY ANY SUCH PERSON SHALL BE PRESUMPTIVE EVIDENCE
THAT SUCH FIREARM OR AMMUNITION WAS SHIPPED OR TRANSPORTED OR RECEIVED,
AS THE CASE MAY BE, BY SUCH PERSON IN VIOLATION OF THIS ACT." 

THE COURT, RELYING UPON A PRIOR DECISION IN A CIVIL CASE, /58/  HELD
THAT THE "CONTROLLING" TEST FOR DETERMINING THE VALIDITY OF A STATUTORY
PRESUMPTION WAS "THAT THERE BE A RATIONAL CONNECTION BETWEEN THE FACTS
PROVED AND THE FACT PRESUMED."  319 U.S.,AT 467.  THE COURT STATED: 

"UNDER OUR DECISIONS, A STATUTORY PRESUMPTION CANNOT BE SUSTAINED IF
THERE BE NO RATIONAL CONNECTION BETWEEN THE FACT PROVED AND THE
ULTIMATE FACT PRESUMED, IF THE INFERENCE OF THE ONE FROM PROOF OF THE
OTHER IS ARBITRARY BECAUSE OF LACK OF CONNECTION BETWEEN THE TWO IN
COMMON EXPERIENCE.  THIS IS NOT TO SAY THAT A VALID PRESUMPTION MAY NOT
BE CREATED UPON A VIEW OF RELATION BROADER THAN THAT A JURY MIGHT TAKE
IN A SPECIFIC CASE.  BUT WHERE THE INFERENCE IS SO STRAINED AS NOT TO
HAVE A REASONABLE RELATION TO THE CIRCUMSTANCES OF LIFE AS WE KNOW
THEM, IT IS NOT COMPETENT FOR THE LEGISLATURE TO CREATE IT AS A RULE
GOVERNING THE PROCEDURE OF COURTS."  319 U.S.,AT 467-468 (FOOTNOTES
OMITTED). 

THE TOT COURT REDUCED TO THE STATUS OF A "COROLLARY" ANOTHER TEST
WHICH HAD SOME SUPPORT IN PRIOR DECISIONS:  /59/  WHETHER IT WAS MORE
CONVENIENT FOR THE DEFENDANT OR FOR THE GOVERNMENT TO SUPPLY PROOF OF
THE ULTIMATE FACT WHICH THE PRESUMPTION PERMITTED TO BE INFERRED.  THE
COURT STATED THAT "(THE ARGUMENT FROM CONVENIENCE IS ADMISSIBLE ONLY
WHERE THE INFERENCE IS A PERMISSIBLE ONE . . . " 319 U.S.,AT 469.  THE
COURT REJECTED ENTIRELY ANOTHER SUGGESTED TEST WITH SOME BACKING IN THE
CASE LAW, /60/  ACCORDING TO WHICH THE PRESUMPTION SHOULD BE SUSTAINED
IF CONGRESS MIGHT LEGITIMATELY HAVE MADE IT A CRIME TO COMMIT THE BASIC
ACT FROM WHICH THE PRESUMPTION ALLOWED AN INFERENCE TO BE DRAWN.  /61/
THE TOT COURT STATED SIMPLY THAT "FOR WHATEVER REASON" CONGRESS HAD NOT
CHOSEN TO MAKE THE BASIC ACT A CRIME.  ID., AT 472. 

APPLYING THE "RATIONAL CONNECTION" TEST, THE COURT HELD THE TOT
PRESUMPTION UNCONSTITUTIONAL.  THE COURT REJECTED THE CONTENTION THAT
BECAUSE MOST STATES FORBADE INTRASTATE ACQUISITION OF FIREARMS WITHOUT
A RECORD OF THE TRANSACTION OR REGISTRATION OF OWNERSHIP IT COULD BE
INFERRED MERELY FROM POSSESSION THAT AN ACQUISITION WHICH DID NOT MEET
THESE REQUIREMENTS MUST HAVE BEEN INTERSTATE, NOTING THE ALTERNATIVE
POSSIBILITIES OF UNLAWFUL INTRASTATE ACQUISITION AND INTERSTATE
SHIPMENT PRIOR TO THE BEGINNING OF STATE REGULATION.  SEE ID., AT 468. 
/62/ 

THE TWO SUBSEQUENT CASES IN WHICH THIS COURT RULED UPON THE
CONSTITUTIONALITY OF CRIMINAL STATUTORY PRESUMPTIONS, UNITED STATES V.
GAINEY, 380 U.S. 63 (1965), AND UNITED STATES V. ROMANO, 382 U.S. 136
(1965), INVOLVED COMPANION SECTIONS OF THE INTERNAL REVENUE CODE
DEALING WITH ILLEGAL STILLS.  THE PRESUMPTION IN GAINEY WAS WORDED
SIMILARLY TO THE ONE AT ISSUE HERE; IT PERMITTED A JURY TO INFER FROM A
DEFENDANT'S PRESENCE AT AN ILLEGAL STILL THAT HE WAS "CARRYING ON" THE
BUSINESS OF A DISTILLER "UNLESS THE DEFENDANT EXPLAINS SUCH PRESENCE TO
THE SATISFACTION OF THE JURY . . . " SEE 26 U.S.C. 5601(A)(4),
5601(B)(2). 

WE HELD THAT THE GAINEY PRESUMPTION SHOULD BE TESTED BY THE
"RATIONAL CONNECTION" STANDARD ANNOUNCED IN TOT.  WE ADDED: 

"THE PROCESS OF MAKING THE DETERMINATION OF RATIONALITY IS, BY ITS
NATURE, HIGHLY EMPIRICAL, AND IN MATTERS NOT WITHIN SPECIALIZED
JUDICIAL COMPETENCE OR COMPLETELY COMMONPLACE, SIGNIFICANT WEIGHT
SHOULD BE ACCORDED THE CAPACITY OF CONGRESS TO AMASS THE STUFF OF
ACTUAL EXPERIENCE AND CULL CONCLUSIONS FROM IT."  380 U.S.,AT 67. 

APPLYING THESE PRINCIPLES, WE SUSTAINED THE GAINEY PRESUMPTION,
FINDING THAT IT "DID NO MORE THAN 'ACCORD TO THE EVIDENCE, IF
UNEXPLAINED, ITS NATURAL PROBATIVE FORCE.'"  380 U.S.,AT 71. 

THE PRESUMPTION UNDER ATTACK IN UNITED STATES V. ROMANO, SUPRA, WAS
IDENTICAL TO THAT IN GAINEY EXCEPT THAT IT AUTHORIZED THE JURY TO INFER
FROM THE DEFENDANT'S PRESENCE AT AN ILLEGAL STILL THAT HE HAD
POSSESSION, CUSTODY, OR CONTROL OF THE STILL.  SEE 26 U.S.C.
5601(A)(1), 5601(B)(1).  WE HELD THIS PRESUMPTION INVALID.  WHILE
STATING THAT THE RESULT IN GAINEY WAS ENTIRELY JUSTIFIED BECAUSE
"(PRESENCE AT AN OPERATING STILL IS SUFFICIENT EVIDENCE TO PROVE THE
CHARGE OF 'CARRYING ON' BECAUSE ANYONE PRESENT AT THE SITE IS VERY
PROBABLY CONNECTED WITH THE ILLEGAL ENTERPRISE," 382 U.S.,AT 141, WE
CONCLUDED: 

"PRESENCE IS RELEVANT AND ADMISSIBLE EVIDENCE IN A TRIAL ON A
POSSESSION CHARGE; BUT ABSENT SOME SHOWING OF THE DEFENDANT'S FUNCTION
AT THE STILL, ITS CONNECTION WITH POSSESSION IS TOO TENUOUS TO PERMIT A
REASONABLE INFERENCE OF GUILT-- 'THE INFERENCE OF THE ONE FROM PROOF OF
THE OTHER IS ARBITRARY . . . '  TOT V. UNITED STATES, 319 U.S. 463,
467."  IBID.  /63/ 

THE UPSHOT OF TOT, GAINEY, AND ROMANO IS, WE THINK, THAT A CRIMINAL
STATUTORY PRESUMPTION MUST BE REGARDED AS "IRRATIONAL" OR "ARBITRARY,"
AND HENCE UNCONSTITUTIONAL, UNLESS IT CAN AT LEAST BE SAID WITH
SUBSTANTIAL ASSURANCE THAT THE PRESUMED FACT IS MORE LIKELY THAN NOT TO
FLOW FROM THE PROVED FACT ON WHICH IT IS MADE TO DEPEND.  /64/  AND IN
THE JUDICIAL ASSESSMENT THE CONGRESSIONAL DETERMINATION FAVORING THE
PARTICULAR PRESUMPTION MUST, OF COURSE, WEIGH HEAVILY. 

        C. 

HOW DOES THE SEC. 176A PRESUMPTION FARE UNDER THESE STANDARDS? 

SO FAR AS HERE RELEVANT, THE PRESUMPTION, QUOTED SUPRA, AT 30,
AUTHORIZES THE JURY TO INFER FROM A DEFENDANT'S POSSESSION OF MARIHUANA
TWO NECESSARY ELEMENTS OF THE CRIME:  (1) THAT THE MARIHUANA WAS
IMPORTED OR BROUGHT INTO THE UNITED STATES ILLEGALLY; AND (2) THAT THE
DEFENDANT KNEW OF THE UNLAWFUL IMPORTATION OR BRINGING IN.  /65/
PETITIONER ARGUES THAT NEITHER INFERENCE IS VALID, CITING UNDISPUTED
TESTIMONY AT HIS TRIAL TO THE EFFECT THAT MARIHUANA WILL GROW ANYWHERE
IN THE UNITED STATES, AND THAT SOME ACTUALLY IS GROWN HERE.  /66/  THE
GOVERNMENT CONTENDS, ON THE OTHER HAND, THAT BOTH INFERENCES ARE
PERMISSIBLE.  FOR REASONS THAT FOLLOW, WE HOLD UNCONSTITUTIONAL THAT
PART OF THE PRESUMPTION WHICH RELATES TO A DEFENDANT'S KNOWLEDGE OF
ILLEGAL IMPORTATION.  CONSEQUENTLY, WE DO NOT REACH THE QUESTION OF THE
VALIDITY OF THE "ILLEGAL IMPORTATION" INFERENCE. 

WITH REGARD TO THE "KNOWLEDGE" PRESUMPTION, WE BELIEVE THAT TOT AND
ROMANO REQUIRE THAT WE TAKE THE STATUTE AT FACE VALUE AND ASK WHETHER
IT PERMITS CONVICTION UPON INSUFFICIENT PROOF OF "KNOWLEDGE," RATHER
THAN INQUIRE WHETHER CONGRESS MIGHT HAVE MADE POSSESSION ITSELF A
CRIME.  /67/  IN ORDER THUS TO DETERMINE THE CONSTITUTIONALITY OF THE
"KNOWLEDGE" INFERENCE, ONE MUST HAVE DIRECT OR CIRCUMSTANTIAL DATA
REGARDING THE BELIEFS OF MARIHUANA USERS GENERALLY ABOUT THE SOURCE OF
THE DRUG THEY CONSUME.  SUCH INFORMATION PLAINLY IS "NOT WITHIN
SPECIALIZED JUDICIAL COMPETENCE OR COMPLETELY COMMON-PLACE," UNITED
STATES V. GAINEY, SUPRA, AT 67.  INDEED, THE PRESUMPTION APPARENTLY WAS
ENACTED TO RELIEVE THE GOVERNMENT OF THE BURDEN OF HAVING TO ADDUCE
SUCH EVIDENCE AT EVERY TRIAL, AND NONE WAS INTRODUCED BY THE
PROSECUTION AT PETITIONER'S TRIAL.  SINCE THE DETERMINATION OF THE
PRESUMPTION'S CONSTITUTIONALITY IS "HIGHLY EMPIRICAL," IBID., IT
FOLLOWS THAT WE MUST CANVASS THE AVAILABLE, PERTINENT DATA.     OF
COURSE, IT MUST BE KEPT IN MIND THAT "SIGNIFICANT WEIGHT SHOULD BE
ACCORDED THE CAPACITY OF CONGRESS TO AMASS THE STUFF OF ACTUAL
EXPERIENCE AND CULL CONCLUSIONS FROM IT."  IBID.  HOWEVER, IT QUICKLY
BECOMES APPARENT THAT THE LEGISLATIVE RECORD DOES NOT SUPPLY AN
ADEQUATE BASIS UPON WHICH TO JUDGE THE SOUNDNESS OF THE "KNOWLEDGE"
PART OF THE PRESUMPTION.  WE HAVE THEREFORE TAKEN OTHER MATERIALS INTO
ACCOUNT AS WELL, IN AN EFFORT TO SUSTAIN THE PRESUMPTION.  IN SO DOING,
WE HAVE NOT CONFINED OURSELVES TO DATA AVAILABLE AT THE TIME THE
PRESUMPTION WAS ENACTED IN 1956, BUT HAVE ALSO CONSIDERED MORE RECENT
INFORMATION, IN ORDER BOTH TO OBTAIN A BROADER GENERAL BACKGROUND AND
TO ASCERTAIN WHETHER THE INTERVENING YEARS HAVE WITNESSED SIGNIFICANT
CHANGES WHICH MIGHT BEAR UPON THE PRESUMPTION'S VALIDITY.  /68/ 

AS HAS BEEN NOTED, WE DO NOT DECIDE WHETHER THE PRESUMPTION OF
ILLEGAL IMPORTATION IS ITSELF CONSTITUTIONAL.  HOWEVER, IN VIEW OF THE
PAUCITY OF DIRECT EVIDENCE AS TO THE BELIEFS OF MARIHUANA SMOKERS
GENERALLY ABOUT THE SOURCE OF THEIR MARIHUANA, WE HAVE FOUND IT
DESIRABLE TO SURVEY DATA CONCERNING THE PROPORTION OF DOMESTICALLY
CONSUMED MARIHUANA WHICH IS OF FOREIGN ORIGIN, SINCE IN THE ABSENCE OF
BETTER INFORMATION THE PROPORTION OF MARIHUANA ACTUALLY IMPORTED SURELY
IS RELEVANT IN DECIDING WHETHER MARIHUANA POSSESSORS "KNOW" THAT THEIR
MARIHUANA IS IMPORTED. 

        D. 

SINCE THE IMPORTATION QUESTION IS A SUBSIDIARY ONE, WE TAKE IT UP
FIRST, BEGINNING, OF COURSE, WITH THE LEGISLATIVE HISTORY OF SEC.
176A.  THE HOUSE AND SENATE COMMITTEE REPORTS AND THE FLOOR DEBATES ARE
RELATIVELY UNHELPFUL.  /69/  MORE INFORMATIVE ARE THE RECORDS OF
EXTENSIVE HEARINGS BEFORE HOUSE AND SENATE COMMITTEES.  /70/  NEAR THE
OUTSET OF THE SENATE COMMITTEE HEARINGS, THE THEN COMMISSIONER OF
NARCOTICS, HARRY J. ANSLINGER, ESTIMATED THAT 90% OF ALL MARIHUANA
SEIZED BY FEDERAL AUTHORITIES HAD BEEN SMUGGLED FROM MEXICO, AND THAT
ALTHOUGH "THERE IS CONSIDERABLE VOLUNTEER GROWTH FROM OLD PLANTINGS IN
THE MIDDLE WEST . . . , (THERE IS VERY LITTLE OF THE LOCAL LAND USED
BECAUSE IT JUST DOES NOT HAVE THE ADVANTAGE OF THE LONG SUMMER GROWING,
AND (DOMESTIC MARIHUANA) IS NOT AS POTENT AS THE MEXICAN DRUG."  /71/
A NUMBER OF OFFICIALS RESPONSIBLE FOR ENFORCING THE NARCOTICS LAWS IN
VARIOUS LOCALITIES ESTIMATED THAT A SIMILAR PROPORTION OF THE MARIHUANA
CONSUMED IN THEIR AREAS WAS OF MEXICAN ORIGIN.  /72/ 

ON THE OTHER HAND, WRITTEN MATERIAL INSERTED IN THE RECORD OF THE
SENATE HEARINGS INCLUDED FORMER TESTIMONY OF AN EXPERIENCED FEDERAL
CUSTOMS AGENT BEFORE ANOTHER SENATE COMMITTEE, TO THE EFFECT THAT HIGH
QUALITY MARIHUANA WAS BEING GROWN NEAR THE TEXAS CITIES OF LAREDO AND
BROWNSVILLE.  /73/  A WRITTEN REPORT OF THE OHIO ATTORNEY GENERAL
RECITED THAT MARIHUANA "MAY GROW UNNOTICED ALONG ROADSIDES AND VACANT
LOTS IN MANY PARTS OF THE COUNTRY,"  /74/  AND A PHILADELPHIA POLICE
ACADEMY BULLETIN STATED THAT:  "PLENTY OF (MARIHUANA) IS FOUND GROWING
IN THIS CITY."  /75/ 

EXAMINATION OF PERIODICALS AND BOOKS PUBLISHED SINCE THE ENACTMENT
OF THE PRESUMPTION LEAVES NO DOUBT THAT IN MORE THAN A DOZEN
INTERVENING YEARS THERE HAVE BEEN GREAT CHANGES IN THE EXTENT AND
NATURE OF MARIHUANA USE IN THIS COUNTRY.  WITH RESPECT TO QUANTITY, ONE
READILY AVAILABLE STATISTIC IS INDICATIVE:  THE AMOUNT OF MARIHUANA
SEIZED IN THIS COUNTRY BY FEDERAL AUTHORITIES HAS JUMPED FROM ABOUT
3,400 POUNDS IN 1956 TO ABOUT 61,400 POUNDS IN 1967.  /76/  WITH REGARD
TO NATURE OF USE, THE 1955 HEARING RECORDS AND OTHER REPORTS PORTRAY
MARIHUANA SMOKING AS AT THAT TIME AN ACTIVITY ALMOST EXCLUSIVELY OF
UNEMPLOYED OR MENIALLY EMPLOYED MEMBERS OF RACIAL MINORITIES.  /77/
CURRENT PERIODICALS AND BOOKS, ON THE OTHER HAND, INDICATE THAT
MARIHUANA SMOKING HAS BECOME COMMON ON MANY COLLEGE CAMPUSES AND AMONG
PERSONS WHO HAVE VOLUNTARILY "DROPPED OUT" OF AMERICAN SOCIETY IN
PROTEST AGAINST ITS VALUES, AND THAT MARIHUANA SMOKERS INCLUDE A
SIZEABLE NUMBER OF YOUNG PROFESSIONAL PERSONS.  /78/ 

DESPITE THESE UNDOUBTED CHANGES, THE MATERIALS WHICH WE HAVE
EXAMINED POINT QUITE STRONGLY TO THE CONCLUSION THAT MOST DOMESTICALLY
CONSUMED MARIHUANA IS STILL OF FOREIGN ORIGIN.  DURING THE SIX YEARS
1962-1967, SOME 79% OF ALL MARIHUANA SEIZED BY FEDERAL AUTHORITIES WAS
SEIZED IN ATTEMPTED SMUGGLING AT PORTS AND BORDERS.  /79/  THE
GOVERNMENT INFORMS US THAT A CONSIDERABLE PART OF THE INTERNALLY SEIZED
MARIHUANA BORE INDICATIONS OF FOREIGN ORIGIN.  /80/  WHILE IT IS
POSSIBLE THAT THESE FACTS REFLECT ONLY THE DEPLOYMENT OF FEDERAL
NARCOTICS FORCES, RATHER THAN THE ACTUAL PROPORTION OF IMPORTED TO
DOMESTIC MARIHUANA, ALMOST ALL OF THE AUTHORITIES WHICH WE HAVE
CONSULTED CONFIRM THAT THE PREPONDERANCE OF COMESTICALLY CONSUMED
MARIHUANA IS GROWN IN MEXICO.  /81/ 

PETITIONER MAKES MUCH OF STATISTICS SHOWING THE NUMBER OF ACRES OF
DOMESTIC MARIHUANA DESTROYED ANNUALLY BY STATE AND FEDERAL AUTHORITIES,
POINTING OUT THAT IF HARVESTED THE DESTROYED ACREAGE COULD IN EACH YEAR
HAVE ACCOUNTED FOR ALL MARIHUANA ESTIMATED TO HAVE BEEN CONSUMED IN THE
UNITED STATES, /82/  AND THAT NO ONE KNOWS HOW MANY ACRES ESCAPE
DESTRUCTION.  HOWEVER, SEVERAL FACTORS WEAKEN THIS ARGUMENT FROM
DOMESTIC GROWTH.  FIRST, THE NUMBER OF ACRES ANNUALLY DESTROYED
DECLINED BY A FACTOR OF THREE BETWEEN 1959 AND 1967, /83/  WHILE DURING
THE SAME PERIOD THE CONSUMPTION OF MARIHUANA, AS MEASURED BY FEDERAL
SEIZURES, ROSE TWENTY-FOLD.  /84/  ASSUMING CONSTANT DILIGENCE ON THE
PART OF THOSE CHARGED WITH DESTRUCTION, THIS WOULD INDICATE THAT IN
1967 A MUCH SMALLER SHARE OF THE MARKET WAS DOMESTICALLY SUPPLIED THAN
IN 1959.  SECOND, WHILE THE TOTAL NUMBER OF ACRES ANNUALLY DESTROYED
HAS INDEED BEEN LARGE ENOUGH TO FURNISH ALL DOMESTICALLY CONSUMED
MARIHUANA, /85/  THE STATE-BY-STATE BREAKDOWNS WHICH ARE AVAILABLE FOR
THE YEARS 1964-1967 REVEAL THAT IN EACH OF THOSE YEARS MORE THAN 95% OF
THE DESTROYED ACREAGE WAS IN TWO MIDWESTERN STATES, ILLINOIS AND
MINNESOTA.  /86/  THE LARGE, RECURRENT MARIHUANA ACREAGES DISCOVERED IN
THOSE STATES CAN PLAUSIBLY BE ASCRIBED TO THE "VOLUNTEER GROWTH FROM
OLD PLANTINGS IN THE MIDDLE WEST" ABOUT WHICH COMMISSIONER ANSLINGER
TESTIFIED, /87/  WHILE ILLICIT CULTIVATORS OF MARIHUANA WOULD BE LIKELY
TO CHOOSE STATES WITH SPARSER POPULATIONS AND MORE FAVORABLE CLIMATES. 
/88/  THIRD AND LAST, REPORTS OF THE BUREAU OF NARCOTICS AND TESTIMONY
OF ITS AGENTS INDICATE THAT IN ITS FAR-REACHING INVESTIGATIONS THE
BUREAU HAS NEVER ENCOUNTERED A SYSTEM FOR DISTRIBUTING SIZEABLE
QUANTITIES OF DOMESTICALLY GROWN MARIHUANA.  /89/  IN CONTRAST, THE
BUREAU HAS FOUND EVIDENCE OF MANY LARGE-SCALE DISTRIBUTION SYSTEMS WITH
SOURCES IN MEXICO.  /90/

        E. 

THE GOVERNMENT URGES THAT ONCE IT IS CONCLUDED THAT MOST
DOMESTICALLY CONSUMED MARIHUANA COMES FROM ABROAD-- A CONCLUSION WHICH
WE THINK IS WARRANTED BY THE DATE JUST EXAMINED-- WE MUST UPHOLD THE
"KNOWLEDGE" PART OF THE PRESUMPTION IN LIGHT OF THIS COURT'S DECISION
IN YEE HEM V. UNITED STATES, 268 U.S. 178 (1925).  IN THAT CASE, THE
COURT SUSTAINED A PRESUMPTION WHICH WAS VIRTUALLY IDENTICAL TO THE ONE
AT ISSUE HERE EXCEPT THAT THE FORBIDDEN SUBSTANCE WAS SMOKING OPIUM
RATHER THAN MARIHUANA.  WITH RESPECT TO THE INFERENCE OF KNOWLEDGE FROM
POSSESSION WHICH WAS AUTHORIZED BY THAT PRESUMPTION, THE COURT SAID: 

"LEGITIMATE POSSESSION (OF OPIUM), UNLESS FOR MEDICINAL USE, IS SO
HIGHLY IMPROBABLE THAT TO SAY TO ANY PERSON WHO OBTAINS THE OUTLAWED
COMMODITY, 'SINCE YOU ARE BOUND TO KNOW THAT IT CANNOT BE BROUGHT INTO
THIS COUNTRY AT ALL, EXCEPT UNDER REGULATION FOR MEDICINAL USE, YOU
MUST AT YOUR PERIL ASCERTAIN AND BE PREPARED TO SHOW THE FACTS AND
CIRCUMSTANCES WHICH REBUT, OR TEND TO REBUT, THE NATURAL INFERENCE OF
UNLAWFUL IMPORTATION, OR YOUR KNOWLEDGE OF IT,' IS NOT SUCH AN
UNREASONABLE REQUIREMENT AS TO CAUSE IT TO FALL OUTSIDE THE
CONSTITUTIONAL POWER OF CONGRESS."  268 U.S.,AT 184. 

THE GOVERNMENT CONTENDS THAT YEE HEM REQUIRES US TO READ THE SEC.
176A PRESUMPTION AS INTENDED TO PUT EVERY MARIHUANA SMOKER ON NOTICE
THAT HE MUST BE PREPARED TO SHOW THAT ANY MARIHUANA IN HIS POSSESSION
WAS NOT ILLEGALLY IMPORTED, AND THAT SINCE THE POSSESSOR IS THE PERSON
MOST LIKELY TO KNOW THE MARIHUANA'S ORIGIN IT IS NOT UNFAIR TO REQUIRE
HIM TO ADDUCE EVIDENCE ON THAT POINT.  HOWEVER, WE CONSIDER THAT THIS
APPROACH, WHICH CLOSELY RESEMBLES THE TEST OF COMPARATIVE CONVENIENCE
IN THE PRODUCTION OF EVIDENCE, /91/  WAS IMPLICITLY ABANDONED IN TOT V.
UNITED STATES, 319 U.S. 463 (1943).  AS WAS NOTED PREVIOUSLY, THE TOT
COURT CONFRONTED A PRESUMPTION WHICH ALLOWED A JURY TO INFER FROM
POSSESSION OF A FIREARM THAT IT WAS RECEIVED IN INTERSTATE COMMERCE. 
DESPITE EVIDENCE THAT MOST STATES PROHIBITED UNREGISTERED AND
UNRECORDED ACQUISITION OF FIREARMS, THE COURT DID NOT READ THE STATUTE
AS NOTIFYING POSSESSORS THAT THEY MUST BE PREPARED TO SHOW THAT THEY
RECEIVED THEIR WEAPONS IN INTRASTATE TRANSACTIONS, AS YEE HEM WOULD
SEEM TO DICTATE.  INSTEAD, WHILE RECOGNIZING THAT "THE DEFENDANTS . . .
KNEW BETTER THAN ANYONE ELSE WHETHER THEY ACQUIRED THE FIREARMS OR
AMMUNITION IN INTERSTATE COMMERCE," 319 U.S.,AT 469, THE COURT HELD
THAT BECAUSE OF THE DANGER OF OVERREACHING IT WAS INCUMBENT UPON THE
PROSECUTION TO DEMONSTRATE THAT THE INFERENCE WAS PERMISSIBLE BEFORE
THE BURDEN OF COMING FORWARD COULD BE PLACED UPON THE DEFENDANT.  THIS
WAS A MATTER WHICH THE YEE HEM COURT EITHER THOUGHT IT UNNECESSARY TO
CONSIDER OR ASSUMED WHEN IT DESCRIBED THE INFERENCE AS "NATURAL."  /92/

        F. 

WE THEREFORE MUST CONSIDER IN DETAIL WHETHER THE AVAILABLE EVIDENCE
SUPPORTS THE CONCLUSION THAT THE "KNOWLEDGE" PART OF THE SEC. 176A
PRESUMPTION IS CONSTITUTIONAL UNDER THE STANDARD ESTABLISHED IN TOT AND
ADHERED TO IN GAINEY AND ROMANO-- THAT IS, WHETHER IT CAN BE SAID WITH
SUBSTANTIAL ASSURANCE THAT ONE IN POSSESSION OF MARIHUANA IS MORE
LIKELY THAN NOT TO KNOW THAT HIS MARIHUANA WAS ILLEGALLY IMPORTED. 

EVEN IF WE ASSUME THAT THE PREVIOUSLY ASSEMBLED DATA ARE SUFFICIENT TO
JUSTIFY THE INFERENCE OF ILLEGAL IMPORTATION, SEE SUPRA, AT 44, IT BY
NO MEANS FOLLOWS THAT A MAJORITY OF MARIHUANA POSSESSORS "KNOW"  /93/
THAT THEIR MARIHUANA WAS ILLEGALLY IMPORTED.  ANY SUCH PROPOSITION
WOULD DEPEND UPON AN INTERMEDIATE PREMISE:  THAT MOST MARIHUANA
POSSESSORS ARE AWARE OF THE LEVEL OF IMPORTATION AND HAVE DEDUCED THAT
THEIR OWN MARIHUANA WAS GROWN ABROAD.  THIS INTERMEDIATE STEP MIGHT BE
THOUGHT JUSTIFIED BY COMMON SENSE IF IT WERE PROVED THAT LITTLE OR NO
MARIHUANA IS GROWN IN THIS COUNTRY.  SHORT OF SUCH A SHOWING, NOT HERE
PRESENT, WE DO NOT BELIEVE THAT THE INFERENCE OF KNOWLEDGE CAN BE
SUSTAINED SOLELY BECAUSE OF THE ASSUMED VALIDITY OF THE "IMPORTATION"
PRESUMPTION. 

ONCE IT IS ESTABLISHED THAT A SIGNIFICANT PERCENTAGE OF DOMESTICALLY
CONSUMED MARIHUANA MAY NOT HAVE BEEN IMPORTED AT ALL, THEN IT CAN NO
LONGER BE POSTULATED, WITHOUT PROOF, THAT POSSESSORS WILL BE EVEN
ROUGHLY AWARE OF THE PROPORTION ACTUALLY IMPORTED.  WE CONCLUDE THAT IN
ORDER TO SUSTAIN THE INFERENCE OF KNOWLEDGE WE MUST FIND ON THE BASIS
OF THE AVAILABLE MATERIALS THAT A MAJORITY OF MARIHUANA POSSESSORS
EITHER ARE COGNIZANT OF THE APPARENTLY HIGH RATE OF IMPORTATION OR
OTHERWISE HAVE BECOME AWARE THAT THEIR MARIHUANA WAS GROWN ABROAD. 

WE CAN IMAGINE FIVE WAYS IN WHICH A POSSESSOR MIGHT ACQUIRE SUCH
KNOWLEDGE:  (1) HE MIGHT BE AWARE OF THE PROPORTION OF DOMESTICALLY
CONSUMED MARIHUANA WHICH IS SMUGGLED FROM ABROAD AND DEDUCE THAT HIS
WAS ILLEGALLY IMPORTED; (2) HE MIGHT HAVE SMUGGLED THE MARIHUANA
HIMSELF; (3) HE MIGHT HAVE LEARNED BY INDIRECT MEANS THAT THE MARIHUANA
CONSUMED IN HIS LOCALITY OR FURNISHED BY HIS SUPPLIER WAS SMUGGLED FROM
ABROAD; (4) HE MIGHT HAVE SPECIFIED FOREIGN MARIHUANA WHEN MAKING HIS
"BUY," OR MIGHT HAVE BEEN TOLD THE SOURCE OF THE MARIHUANA BY HIS
SUPPLIER; (5) HE MIGHT BE ABLE TO TELL THE SOURCE FROM THE APPEARANCE,
PACKAGING, OR TASTE OF THE MARIHUANA ITSELF. 

WE TREAT THESE FIVE POSSIBILITIES SERIATIM, IN LIGHT OF THE
AVAILABLE MATERIALS, BEGINNING IN EACH INSTANCE WITH THE LEGISLATIVE
RECORD.  WE NOTE AT THE OUTSET THAT ALTHOUGH WE HAVE BEEN ABLE TO
DISCOVER A GOOD DEAL OF RELEVANT SECONDARY EVIDENCE, WE HAVE FOUND NONE
OF THE BEST KIND POSSIBLE-- TESTIMONY OF MARIHUANA USERS ABOUT THEIR
OWN BELIEFS AS TO ORIGIN, OR STUDIES BASED UPON INTERVIEWS IN WHICH
USERS WERE ASKED ABOUT THIS MATTER.  THE COMMITTEE HEARINGS WHICH
PRECEDED PASSAGE OF SEC. 176A INCLUDED TESTIMONY BY MANY MARIHUANA
SMOKERS, BUT NONE WAS EVER ASKED WHETHER HE KNEW THE ORIGIN OF THE
MARIHUANA HE SMOKED.  IT SHOULD ALSO BE KEPT IN MIND THAT THE GREAT
PREPONDERANCE OF MARIHUANA SMOKERS ARE "OCCASIONAL" RATHER THAN
"REGULAR" USERS OF THE DRUG, /94/  AND THAT "OCCASIONAL" SMOKERS APPEAR
TO BE ARRESTED DISPROPORTIONATELY OFTEN, DUE TO THEIR INEXPERTNESS IN
TAKING PRECAUTIONS.  /95/  "OCCASIONAL" USERS ARE LIKELY TO BE LESS
INFORMED AND LESS PARTICULAR ABOUT THE DRUG THEY SMOKE; /96/  HENCE, IT
IS LESS PROBABLE THAT THEY WILL HAVE LEARNED ITS SOURCE IN ANY OF THE
ABOVE WAYS. 

THE FIRST POSSIBILITY IS THAT A POSSESSOR MAY HAVE KNOWN THE
PROPORTION OF IMPORTED TO DOMESTIC MARIHUANA AND HAVE DEDUCED THAT HIS
OWN MARIHUANA WAS GROWN ABROAD.  THE LEGISLATIVE RECORD IS OF NO
ASSISTANCE IN EVALUATING THIS POSSIBILITY.  SUCH INDIRECT EVIDENCE AS
WE HAVE FOUND POINTS TO THE CONCLUSION THAT WHILE MOST MARIHUANA USERS
PROBABLY KNOW THAT SOME MARIHUANA COMES FROM MEXICO, IT IS ALSO LIKELY
THAT THE GREAT MAJORITY EITHER HAVE NO KNOWLEDGE ABOUT THE PROPORTION
WHICH IS IMPORTED OR BELIEVE THAT THE PROPORTION IS CONSIDERABLY LOWER
THAN MAY ACTUALLY BE THE CASE.  /97/ 

THE SECOND POSSIBILITY IS THAT A POSSESSOR MAY KNOW THE ORIGIN OF
HIS MARIHUANA BECAUSE HE SMUGGLED IT INTO THE UNITED STATES HIMSELF. 
THE LEGISLATIVE RECORD IS UNHELPFUL IN ESTIMATING THE PROPORTION OF
POSSESSORS WHO FALL INTO THIS CLASS.  OTHER SOURCES INDICATE THAT THERE
ARE A CONSIDERABLE NUMBER OF SMOKERS WHO "SMUGGLE THEIR OWN," BUT THAT
THE GREAT MAJORITY OF POSSESSORS HAVE OBTAINED THEIR MARIHUANA FROM
SUPPLIERS IN THIS COUNTRY.  /98/     THE LEGISLATIVE RECORD IS ALSO
UNINFORMATIVE ABOUT THE POSSIBILITY THAT A POSSESSOR MAY HAVE LEARNED
THE SOURCE OF HIS MARIHUANA BY INDIRECT MEANS.  OTHER SOURCES REVEAL
THAT IMPORTED MARIHUANA USUALLY PASSES THROUGH A NUMBER OF HANDS BEFORE
REACHING THE CONSUMER, AND THAT THE DISTRIBUTION SYSTEM IS KEPT
SECRET.  /99/  IT WOULD APPEAR THAT RELATIVELY FEW CONSUMERS KNOW THE
ORIGIN OF THEIR MARIHUANA BY INDIRECT MEANS. 

THE FOURTH POSSIBILITY IS THAT THE POSSESSOR MAY HAVE SPECIFIED
FOREIGN MARIHUANA WHEN MAKING HIS PURCHASE OR MAY HAVE BEEN TOLD BY HIS
SUPPLIER THAT THE MARIHUANA WAS GROWN ABROAD.  THE LEGISLATIVE RECORD
IS SOMEWHAT MORE HELPFUL WITH RESPECT TO THIS POSSIBILITY, FOR IT DOES
CONTAIN STATEMENTS TO THE EFFECT THAT MEXICAN MARIHUANA IS MORE POTENT
THAN DOMESTIC AND IS CONSEQUENTLY PREFERRED BY SMOKERS.  /100/
HOWEVER, THE LEGISLATIVE RECORD ALSO CONTAINS TESTIMONY BY A CUSTOMS
AGENT THAT TEXAS MARIHUANA IS AS "GOOD" AS THAT FROM MEXICO.  /101/
MOST AUTHORITIES STATE THAT MEXICAN MARIHUANA GENERALLY DOES HAVE
GREATER INTOXICATING POWER THAN DOMESTIC MARIHUANA, DUE TO THE HIGHER
TEMPERATURES AND LOWER HUMIDITY USUALLY ENCOUNTERED IN MEXICO.  /102/
THERE ARE SOME INDICATIONS THAT SMOKERS ARE LIKELY TO PREFER MEXICAN
MARIHUANA, /103/  BUT THERE IS NOTHING TO SHOW THAT PURCHASERS COMMONLY
SPECIFY MEXICAN MARIHUANA WHEN MAKING A "BUY."  IT APPEARS THAT
SUPPLIERS OF MARIHUANA OCCASIONALLY VOLUNTEER THE PLACE OF ORIGIN,
/104/  BUT WE HAVE FOUND NO HINT THAT THIS IS USUALLY DONE, AND THERE
ARE INDICATIONS THAT IF THE INFORMATION IS NOT VOLUNTEERED THE BUYER
MAY BE RELUCTANT TO ASK, FOR FEAR OF BEING THOUGHT AN INFORMER.  /105/
WE SIMPLY ARE UNABLE TO ESTIMATE WITH ANY ACCURACY, ON THE BASIS OF
THESE DATA, WHAT PROPORTION OF MARIHUANA POSSESSORS HAVE LEARNED THE
ORIGIN OF THEIR MARIHUANA IN THIS WAY.  IT IS CERTAINLY NOT A MAJORITY;
BUT WHETHER IT IS A SMALL MAJORITY OR A LARGE ONE WE ARE UNABLE TO
TELL. 

THE FIFTH POSSIBILITY IS THAT A SMOKER MAY BE ABLE TO TELL THE
SOURCE OF HIS MARIHUANA FROM ITS APPEARANCE, PACKAGING, OR TASTE.  AS
FOR APPEARANCE, IT SEEMS THAT THERE IS ONLY ONE SPECIES OF MARIHUANA,
AND THAT EVEN EXPERTS ARE UNABLE TO TELL BY EYE WHERE A PARTICULAR
SAMPLE WAS GROWN.  /106/  THE COURT OF APPEALS FOR THE NINTH CIRCUIT
DID FIND IN CAUDILLO V. UNITED STATES, 253 F.2D 513 (1958), ON THE
BASIS OF TRIAL TESTIMONY, THAT "UNMANICURED" OR "ROUGH"  MARIHUANA--
THAT IS, MARIHUANA CONTAINING SOME SEEDS AND STEMS, AS WELL AS LEAVES--
WAS MUCH MORE LIKELY TO COME FROM MEXICO THAN FROM CALIFORNIA; THIS WAS
BECAUSE THE PRESENCE OF SEEDS IMPLIED THAT THE PLANT HAD BEEN ALLOWED
TO MATURE AND EVIDENCE SHOWED THAT CALIFORNIA GROWERS ALMOST ALWAYS
HARVEST THE PLANT BEFORE THAT STAGE.  HOWEVER, WE HAVE FOUND NOTHING TO
INDICATE THAT THIS DISTINCTION HOLDS GOOD IN OTHER AREAS OF THE
COUNTRY, OR THAT MARIHUANA POSSESSORS ARE LIKELY TO REALIZE ITS
SIGNIFICANCE. 

WITH RESPECT TO PACKAGING, THERE IS EVIDENCE THAT MEXICAN MARIHUANA
IS COMMONLY COMPRESSED INTO DISTINCTIVE "BRICKS" AND THEN WRAPPED IN
CHARACTERISTICALLY MEXICAN PAPER.  /107/  YET EVEN IF IT IS ASSUMED
THAT MOST MEXICAN MARIHUANA BEARS SUCH DISTINGUISHING MARKS WHEN FIRST
BROUGHT INTO THIS COUNTRY, THERE IS NO INDICATION THAT THEY NORMALLY
ARE STILL PRESENT WHEN IT REACHES THE CONSUMER.  THE PACKAGING METHOD
JUST MENTIONED APPARENTLY IS INTENDED TO FACILITATE TRANSPORTATION OF
RELATIVELY LARGE QUANTITIES OF MARIHUANA.  A "BRICK" APPEARS USUALLY TO
CONTAIN ABOUT ONE KILOGRAM OF MARIHUANA, /108/  AND RELATIVELY FEW
CONSUMER SALES WILL INVOLVE SUCH A LARGE AMOUNT, SINCE A KILOGRAM OF
MARIHUANA WILL FURNISH SOME 3,300 MARIHUANA CIGARETTES.  /109/  SMOKERS
APPEAR USUALLY TO PURCHASE MARIHUANA BY THE "BAG"-- ABOUT ONE-FIFTH
OUNCE; BY THE "CAN"-- ABOUT ONE OUNCE; OR BY THE POUND.  /110/  HENCE,
AFTER IMPORTATION "(THE WHOLESALERS WILL REPACKAGE THE MARIHUANA INTO
SMALLER PACKAGES, . . . AND THEY WILL DO IT IN VARIOUS WAYS."  /111/
WE INFER THAT ONLY A SMALL PERCENTAGE OF SMOKERS ARE LIKELY TO LEARN OF
THE DRUG'S ORIGIN FROM ITS PACKAGING. 

WITH RESPECT TO TASTE, THE SENATE HEARING RECORD CONTAINS THE
STATEMENT OF A FEDERAL CUSTOMS AGENT THAT:  "A GOOD MARIHUANA SMOKER
CAN PROBABLY TELL GOOD MARIHUANA FROM BAD."  /112/  AS HAS BEEN SEEN,
THERE IS A PREPONDERANCE OF OPINION TO THE EFFECT THAT MEXICAN
MARIHUANA IS MORE POTENT THAN DOMESTIC.  /113/  ONE AUTHORITY STATES
THAT PURCHASERS OF MARIHUANA COMMONLY SAMPLE THE PRODUCT BEFORE MAKING
A "BUY."  /114/  HOWEVER, THE AGENT QUOTED ABOVE ALSO ASSERTED THAT
SOME "GOOD" MARIHUANA WAS GROWN IN TEXAS.  AND THE ACCOUNT OF THE
SAMPLING CUSTOM FURTHER STATES THAT TASTING IS MERELY A RITUAL SINCE
"(USUALLY THE INTOXICATION WILL NOT DIFFER MUCH FROM ONE CIGARETTE TO
ANOTHER . . . "  /115/  ONCE AGAIN, WE SIMPLY ARE UNABLE TO ESTIMATE
WHAT PROPORTION OF MARIHUANA POSSESSORS ARE CAPABLE OF "PLACING" THE
MARIHUANA IN THEIR POSSESSION BY ITS TASTE, MUCH LESS WHAT PROPORTION
ACTUALLY HAVE DONE SO BY THE TIME THEY ARE ARRESTED. 

G. 

WE CONCLUDE THAT THE "KNOWLEDGE" ASPECT OF THE SEC. 176A PRESUMPTION
CANNOT BE UPHELD WITHOUT MAKING SERIOUS INCURSIONS INTO THE TEACHINGS
OF TOT, GAINEY, AND ROMANO.  IN THE CONTEXT OF THIS PART OF THE
STATUTE, THOSE TEACHINGS REQUIRE THAT IT BE DETERMINED WITH SUBSTANTIAL
ASSURANCE THAT AT LEAST A MAJORITY OF MARIHUANA POSSESSORS HAVE LEARNED
OF THE FOREIGN ORIGIN OF THEIR MARIHUANA THROUGH ONE OR MORE OF THE
WAYS DISCUSSED ABOVE. 

WE FIND IT IMPOSSIBLE TO MAKE SUCH A DETERMINATION.  AS WE HAVE
SEEN, THE MATERIALS AT OUR DISPOSAL LEAVE US AT LARGE TO ESTIMATE EVEN
ROUGHLY THE PROPORTION OF MARIHUANA POSSESSORS WHO HAVE LEARNED IN ONE
WAY OR ANOTHER THE ORIGIN OF THEIR MARIHUANA.  IT MUST ALSO BE
RECOGNIZED THAT A NOT INCONSIDERABLE PROPORTION OF DOMESTICALLY
CONSUMED MARIHUANA APPEARS TO HAVE BEEN GROWN IN THIS COUNTRY, AND THAT
ITS POSSESSORS MUST BE TAKEN TO HAVE "KNOWN," IF ANYTHING, THAT THEIR
MARIHUANA WAS NOT ILLEGALLY IMPORTED.  IN SHORT, IT WOULD BE NO MORE
THAN SPECULATION WERE WE TO SAY THAT EVEN AS MUCH AS A MAJORITY OF
POSSESSORS "KNEW" THE SOURCE OF THEIR MARIHUANA.  /116/ 

NOR ARE THESE DEFICIENCIES IN THE FOUNDATION FOR THE "KNOWLEDGE"
PRESUMPTION OVERCOME BY PAYING, AS WE DO, THE UTMOST DEFERENCE TO THE
CONGRESSIONAL DETERMINATION THAT THIS PRESUMPTION WAS WARRANTED.  FOR
CONGRESS, NO LESS THEN WE, IS SUBJECT TO CONSTITUTIONAL REQUIREMENTS,
SHORTER OF FURNISHING AN ADEQUATE FOUNDATION FOR THE "KNOWLEDGE"
PRESUMPTION THAN DO THE MORE EXTENSIVE MATERIALS WE HAVE EXAMINED. 

WE THUS CANNOT ESCAPE THE DUTY OF SETTING ASIDE PETITIONER'S
CONVICTION UNDER COUNT 2 OF THIS INDICTMENT. 

FOR THE REASONS STATED IN PART I OF THIS OPINION WE REVERSE OUTRIGHT
THE JUDGMENT OF CONVICTION ON COUNT 3 OF THE INDICTMENT.  FOR THE
REASONS STATED IN PART II, WE REVERSE THE JUDGMENT OF CONVICTION ON
COUNT 2 AND REMAND THE CASE TO THE COURT OF APPEALS FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  WE ARE CONSTRAINED TO ADD
THAT NOTHING IN WHAT WE HOLD TODAY IMPLIES ANY CONSTITUTIONAL
DISABILITY IN CONGRESS TO DEAL WITH THE MARIHUANA TRAFFIC BY OTHER
MEANS. 

REVERSED AND REMANDED. 

/1/  INSOFAR AS HERE RELEVANT, SEC. 2(H) OF THE NARCOTIC DRUGS
IMPORT AND EXPORT ACT, 70 STAT. 570, 21 U.S.C. 176A, PROVIDES: 

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHOEVER, KNOWINGLY,
WITH INTENT TO DEFRAUD THE UNITED STATES, IMPORTS OR BRINGS INTO THE
UNITED STATES MARIHUANA CONTRARY TO LAW, OR SMUGGLES OR CLANDESTINELY
INTRODUCES INTO THE UNITED STATES MARIHUANA WHICH SHOULD HAVE BEEN
INVOICED, OR RECEIVES, CONCEALS, BUYS, SELLS, OR IN ANY MANNER
FACILITATES THE TRANSPORTATION, CONCEALMENT, OR SALE OF SUCH MARIHUANA
AFTER BEING IMPORTED OR BROUGHT IN, KNOWING THE SAME TO HAVE BEEN
IMPORTED OR BROUGHT INTO THE UNITED STATES CONTRARY TO LAW, OR WHOEVER
CONSPIRES TO DO ANY OF THE FOREGOING ACTS, SHALL BE IMPRISONED . . . 

"WHENEVER ON TRIAL FOR A VIOLATION OF THIS SUBSECTION, THE DEFENDANT
IS SHOWN TO HAVE OR TO HAVE HAD THE MARIHUANA IN HIS POSSESSION, SUCH
POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION
UNLESS THE DEFENDANT EXPLAINS HIS POSSESSION TO THE SATISFACTION OF THE
JURY." 

/2/  SEE N. 1, SUPRA. 

/3/  INSOFAR AS HERE RELEVANT, 26 U.S.C. 4744(A) PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON WHO IS A TRANSFEREE REQUIRED TO
PAY THE TRANSFER TAX IMPOSED BY SECTION 4741(A)-- 

"(1) TO ACQUIRE OR OTHERWISE OBTAIN ANY MARIHUANA WITHOUT HAVING
PAID SUCH TAX, OR 

"(2) TO TRANSPORT OR CONCEAL, OR IN ANY MANNER FACILITATE THE
TRANSPORTATION OR CONCEALMENT OF, ANY MARIHUANA SO ACQUIRED OR
OBTAINED." 

THE STATUTORY SCHEME OF THE MARIHUANA TAX ACT IS ANALYZED IN MORE
DETAIL AT 14-16, INFRA. 

/4/  PETITIONER HAD TESTIFIED WITHOUT CONTRADICTION THAT HE HAD
OBTAINED THE MARIHUANA IN NEW YORK, AND THE DISTRICT COURT APPARENTLY
REASONED THAT AN ARTICLE TAKEN OUT OF THE UNITED STATES COULD NOT BE
"SMUGGLED" BACK INTO THE COUNTRY, AS CHARGED BY THE INDICTMENT.  SEE
APPENDIX 60A; 2 TRANSCRIPT OF RECORD 520, 523-526; CF. UNITED STATES V.
CLAYBOURN, 180 F.SUPP.  448, 451-452 (1960). 

/5/  SEE 18 U.S.C. 4208.  PETITIONER WAS TENTATIVELY SENTENCED TO 20
YEARS IN PRISON AND A $20,000 FINE FOR VIOLATION OF SEC. 176A, AND TO
10 YEARS IN PRISON AND A $20,000 FINE FOR VIOLATION OF SEC. 4744(A)(2)
(SEE 26 U.S.C. 7237(A), THE PRISON SENTENCES TO RUN CONSECUTIVELY.  THE
LOWEST PENALTY FOR CONVICTION UNDER SEC. 176A IS FIVE YEARS'
IMPRISONMENT, AND NO SUSPENSION OF SENTENCE, PROBATION, OR PAROLE IS
PERMITTED FOLLOWING SUCH A CONVICTION.  SEE 26 U.S.C. 7237(D). 

/6/  390 U.S.,AT 48, QUOTING FROM REG. V. BOYES, 1 B.& S. 311, 330
(1861). 

/7/  390 U.S.,AT 57, QUOTING FROM ALBERTSON V. SACB, 382 U.S. 70, 79
(1965). 

/8/  IBID. 

/9/  THE TRANSFEROR IS SECONDARILY LIABLE FOR THE TAX.  SEE 26
U.S.C. 4741(B). 

/10/  THE EXCEPTIONS INCLUDE TRANSFERS BY OR UNDER PRESCRIPTION OF A
MEDICAL PRACTITIONER; LEGAL EXPORTATION TO FOREIGN COUNTRIES; TRANSFERS
TO GOVERNMENT OFFICIALS; AND TRANSFERS OF MARIHUANA SEEDS TO PERSONS
REGISTERED UNDER SEC. 4753. 

/11/  26 U.S.C. 6107, WHICH REQUIRES THAT A LIST OF "PERSONS WHO
HAVE PAID SPECIAL TAXES" UNDER SUBTITLES D AND E OF THE INTERNAL
REVENUE CODE BE KEPT FOR PUBLIC INSPECTION IN EACH PRINCIPAL INTERNAL
REVENUE OFFICE AND THAT THE LIST BE FURNISHED TO STATE AND LOCAL
PROSECUTORS ON REQUEST, APPARENTLY DOES NOT APPLY TO PAYORS OF TRANSFER
TAXES.  SEE HAYNES V. UNITED STATES, 390 U.S. 85, 99-100 (1968). 

/12/  THE RELEVANT TEXT OF SEC. 4744(A) IS SET OUT IN N. 3, SUPRA. 

/13/  MARCHETTI V. UNITED STATES, 390 U.S. 39, 48 (1968). 

/14/  IT IS ALSO POSSIBLE THAT COMPLIANCE WITH THE ACT ALSO WOULD
HAVE CREATED A SUBSTANTIAL RISK OF INCRIMINATION UNDER 21 U.S.C. 176A,
THE OTHER FEDERAL STATUTE WHICH PETITIONER WAS CONVICTED OF VIOLATING
(THE RELEVANT TEXT OF SEC. 176A IS REPRODUCED IN N. 1, SUPRA). 
HOWEVER, THE DANGER OF INCRIMINATION UNDER STATE LAW IS SO PLAIN THAT
THIS POSSIBILITY NEED NOT BE EXPLORED FURTHER. 

/15/  AT THE TIME PETITIONER FAILED TO COMPLY WITH THE ACT, 48
STATES AND THE DISTRICT OF COLUMBIA HAD ON THEIR BOOKS IN SOME FORM
ESSENTIALLY THE PROVISIONS OF THE UNIFORM NARCOTIC DRUG ACT.  SEE 9B
UNIFORM LAWS ANN. 409-410 (1966).  SECTION 2 OF THAT ACT STATES:  "IT
SHALL BE UNLAWFUL FOR ANY PERSON TO . . . POSSESS . . . ANY NARCOTIC
DRUG, EXCEPT AS AUTHORIZED IN THIS ACT."  SECTION 1(14) DEFINES
"NARCOTIC DRUGS" TO INCLUDE MARIHUANA ("CANNABIS").  THE REMAINING TWO
STATES, CALIFORNIA AND PENNSYLVANIA, ALSO HAVE STATUTES MAKING IT A
CRIME TO POSSESS MARIHUANA.  SEE CAL. HEALTH & SAFETY CODE SEC. 11530
(1964); PA. STAT. ANN., TIT. 35, SECS. 780-2(G), 780-4(Q) (1964). 

IN 1965, NEW YORK AND TEXAS HAD IN EFFECT STATUTORY PROVISIONS
SUBSTANTIALLY IDENTICAL TO THE ABOVE SECTIONS OF THE UNIFORM ACT.  FOR
NEW YORK, SEE N.Y. PUB. HEALTH LAW SECS. 3301, SUBD. 38 (SUPP. 1968
1969), 3305 (1954); FOR TEXAS, SEE TEX. PEN.  CODE, ART. 725B, SECS.
1(14), 2 (1961).  IN NEW YORK POSSESSION OF ANY AMOUNT OF MARIHUANA WAS
A MISDEMEANOR PUNISHABLE BY UP TO A YEAR'S IMPRISONMENT.  SEE N.Y.
PEN.  LAW SEC. 1751-A(1) (SUPP. 1966).  SEE ALSO, ID., SEC. 1751, SUBD.
2 (SUPP. 1966).  IN TEXAS, SUCH POSSESSION WAS A FELONY PUNISHABLE BY
IMPRISONMENT FOR NOT LESS THEN TWO YEARS AND NOT MORE THAN LIFE.  SEE
TEX. PEN.  CODE, ART. 725B, SEC. 23(1) (1961). 

/16/  SEE, E.G., UNIFORM NARCOTIC DRUG ACT SECS. 3-11, 9B UNIFORM
LAWS ANN. 472-496 (1966); N.Y. PUB. HEALTH LAW SECS. 3310, 3320-3325,
3330-3333 (1954 AND SUPP. 1968-1969); TEX. PEN.  CODE, ART. 725B, SECS.
5-12 (196;). 

/17/  SEE 26 U.S.C. 4751(1)-(6). 

/18/  SEE 26 U.S.C. 4755(A)(1), 7237(A). 

/19/  26 U.S.C. 4742(B)(1)-(2) EXEMPT PERSONS WHO RECEIVE MARIHUANA
UNDER MEDICAL PRESCRIPTION OR DIRECTLY FROM A MEDICAL PRACTITIONER. 
TITLE 26 U.S.C. 4742(B)(4) EXEMPTS TRANSFERS TO PUBLIC OFFICIALS.  AND
THE DESIGN OF THE ACT STRONGLY SUGGESTS THAT A DELIVERY OF MARIHUANA TO
AN EMPLOYEE OR AGENT OF A REGISTRANT IS CONSIDERED A "TRANSFER" TO THE
REGISTRANT HIMSELF, SEE 26 U.S.C. 4755(B)(3), 26 CFR 152.41, 152.42,
AND THAT DELIVERY TO A COMMON CARRIER IS CONSIDERED A "TRANSFER" TO THE
ADDRESSEE.  SEE 26 U.S.C. 4755(B)(2), 26 CFR 152.127(C). 

/20/  THE GOVERNMENT ARGUES THAT THE $100 PER OUNCE TAX WAS INTENDED
TO BE COLLECTED ONLY CIVILLY FROM THOSE FOUND TO HAVE ENGAGED IN
ILLEGAL TRANSFERS.  SEE BRIEF FOR THE UNITED STATES 19, N. 23, AND 29. 
SEE ALSO UNITED STATES V. SANCHEZ, 340 U.S. 42 (1950).     /21/  AFTER
OUR DECISIONS IN MARCHETTI, GROSSO, AND HAYNES, DISTRICT DIRECTORS WERE
INSTRUCTED THAT APPLICATIONS BY NONREGISTRANTS SHOULD NOT BE DISCLOSED
BUT SIMPLY RETURNED TO THE APPLICANTS.  SEE BRIEF FOR THE UNITED STATES
17, N. 16. 

/22/ SEE N. 10, SUPRA. 

/23/  SEE HEARINGS ON H.R. 6385 BEFORE THE HOUSE COMMITTEE ON WAYS
AND MEANS, 75TH CONG.,1ST SESS., 5 (1937). 

/24/  SEE ID., AT 3-5.     /25/  ID., AT 7. 

/26/  IBID. 

/27/  HEARINGS ON H.R. 6385 BEFORE THE HOUSE COMMITTEE ON WAYS AND
MEANS, 75TH CONG.,1ST SESS., 9 (1937).  THE DOUBTS ABOUT THE BILL'S
CONSTITUTIONALITY WERE OCCASIONED BY THE DISSENTING OPINIONS IN UNITED
STATES V. DOREMUS, 249 U.S. 86, 95 (1919), AND NIGRO V. UNITED STATES,
276 U.S. 332, 354, 357 (1928).  SEE HEARINGS ON H.R. 6385, SUPRA, AT
9. 

/28/  HEARINGS ON H.R. 6906 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON FINANCE, 75TH CONG.,1ST SESS., 5 (1937). 

/29/  ID., AT 6. 

/30/  IBID. 

/31/  ID., AT 7. 

/32/  H.R. REP. NO. 792, 75TH CONG.,1ST SESS., 1 (1937). 

/33/  ID., AT 2. 

/34/  IBID. 

/35/  ID., AT 3. 

/36/  IBID. 

/37/  SEE S. REP. NO. 900, 75TH CONG.,1ST SESS., 2-3 (1937). 

/38/  THE REGULATIONS, 26 CFR 152.22, 152.23, SEE SUPRA, AT 18-19,
WHICH LIMIT REGISTRATION UNDER SEC. 4753 TO PERSONS WHOSE MARIHUANA
DEALINGS ARE LEGAL UNDER RELEVANT STATE AND LOCAL LAWS, DO NOT OF
THEMSELVES REQUIRE THE RESULT URGED BY THE GOVERNMENT.  IN FACT, THERE
IS STRONG SUPPORT IN THE LEGISLATIVE HISTORY FOR THE PROPOSITION THAT
ILLICIT CONSUMERS OF MARIHUANA LIKE PETITIONER ARE NOT ENTITLED TO
REGISTER.  THE HOUSE AND SENATE REPORTS AND THE TESTIMONY OF MR. HESTER
BEFORE A SUBCOMMITTEE OF THE SENATE FINANCE COMMITTEE ALL STATE, IN
IDENTICAL LANGUAGE, THAT "(UNDER (THE BILL'S) PROVISIONS ALL LEGITIMATE
HANDLERS OF MARIHUANA ARE REQUIRED TO PAY OCCUPATIONAL TAXES . . . "
H.R. REP. NO. 792, 75TH CONG.,1ST SESS., 2 (1937); S. REP. NO. 900,
75TH CONG.,1ST SESS., 3 (1937); HEARINGS ON H.R. 6906 BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON FINANCE, 75TH CONG.,1ST SESS.,
6 (1937).  IN HIS TESTIMONY BEFORE THE HOUSE WAYS AND MEANS COMMITTEE,
MR. HESTER STATED EXPLICITLY THAT "THOSE WHO WOULD CONSUME MARIHUANA
ARE NOT ELIGIBLE TO REGISTER UNDER THE BILL . . . "  HEARINGS ON H.R.
6385 BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 75TH CONG.,1ST
SESS., 8 (1937). 

/39/  SEE H.R. REP. NO. 1337, 83D CONG.,2D SESS., A325 (1954); S.
REP. NO. 1622, 83D CONG.,2D SESS., 482-483 (1954). 

/40/  SEE ALSO 1 K.DAVIS, ADMINISTRATIVE LAW TREATISE 5.07 (1958),
AND CASES THERE CITED. 

/41/  SEE GENERALLY ID., SEC. 5.06. 

/42/  SEE BRIEF FOR THE UNITED STATES IN NO. 81, O.T. 1950, UNITED
STATES V. SANCHEZ, AT 28-29. 

/43/  ANY OTHER HOLDING WOULD GIVE RISE TO ADDITIONAL KNOTTY
QUESTIONS, SUCH AS WHETHER PETITIONER'S NONPAYMENT OF THE TRANSFER TAX
SHOULD BE EXCUSED BECAUSE OF HIS ACTUAL OR ASSUMED RELIANCE UPON THE
ERRONEOUS ADMINISTRATIVE CONSTRUCTION OF THE STATUTE, UNDER WHICH HE
WOULD NOT HAVE BEEN PERMITTED TO PAY.  CF. JAMES V. UNITED STATES, 366
U.S. 213 (1961). 

/44/  GROSSO V. UNITED STATES, 390 U.S. 62, 65 (1968), QUOTING FROM
ALBERTSON V. SACB, 382 U.S. 70, 78 (1965). 

/45/  SEE ALSO GROSSO V. UNITED STATES, SUPRA, AT 69; HAYNES V.
UNITED STATES, SUPRA, AT 99-100 (1968). 

/46/  H.R. REP. NO. 792, 75TH CONG.,1ST SESS., 2 (1937); S. REP. NO.
900, 75TH CONG.,1ST SESS., 3 (1937). 

/47/  SEE APPENDIX 87A-88A, 89A. 

/48/  SEE APPENDIX 86A-89A.  OF COURSE, A HOLDING THAT PETITIONER
WAIVED HIS RIGHT TO PLEAD SELF-INCRIMINATION BY HIS RELIANCE ON THE
ERRONEOUS ADMINISTRATIVE INTERPRETATION WOULD REQUIRE CONSIDERATION OF
THE FURTHER QUESTION MENTIONED IN N. 43, SUPRA:  WHETHER SUCH RELIANCE
SHOULD PROVIDE A DEFENSE. 

/49/  WHEN FIRST ASKED ON DIRECT EXAMINATION WHY HE HAD NOT PAID THE
TRANSFER TAX, PETITIONER STATED:  "WELL, I KNEW THAT I COULDN'T GET
SUCH A PERMISSION . . . I ALSO KNOW THAT IF I HAD APPLIED FOR SUCH A
(TRANSFER TAX) STAMP I WOULD PROBABLY SUBJECT MYSELF TO INVESTIGATION .
. . " APPENDIX 86A.  IN RESPONSE TO A SIMILAR SUBSEQUENT QUESTION,
PETITIONER SAID:  "I WAS VERY CERTAIN THAT I WOULD NOT BE ABLE TO PAY
THE TAX ON THE MARIHUANA AND THAT NOT ONLY WOULD IT BE TAKEN AWAY FROM
ME BUT I WOULD BE SUBJECTED TO ACTION."  APPENDIX 87A.  AND WHEN ASKED
WHETHER HE HAD "AN HONEST BELIEF THAT YOU COULD NOT OBTAIN (AN ORDER
FORM)," PETITIONER REPLIED: "I HAD A STRONG AND HONEST BELIEF THAT I
COULD NOT GET IT AND IT WOULD JUST CAUSE A LOT OF PUBLICITY AND TROUBLE
FOR BOTH THE GOVERNMENT AND MYSELF.  AND I AM NOT TRYING TO CAUSE
TROUBLE . . . " APPENDIX 89A. 

/50/  AS HAS BEEN NOTED, THE FIRST COUNT CHARGED HIM WITH SMUGGLING
IN VIOLATION OF SEC. 176A, BUT THE DISTRICT COURT DISMISSED THAT
COUNT.  SEE SUPRA, AT 11 AND N. 4. 

/51/  SEE APPENDIX 90A. 

/52/  WITH RESPECT TO THIS THEORY, THE TRIAL JUDGE STATED NEAR THE
END OF HIS CHARGE TO THE JURY:

"NOW, YOU MIGHT HAVE SOME DIFFICULTY WITH THE QUESTION ON COUNT 2 .
. . 

"I MENTION THIS A SECOND TIME BECAUSE YOU MIGHT BE CONFUSED ABOUT
THE QUESTION OF IMPORTATION. 

"WE ARE NOT TALKING NECESSARILY ABOUT THE IMPORTATION OR WHAT THE
GOVERNMENT CONTENDS WAS IMPORTATION HERE AT THE BRIDGE. 

"THE DEFENDANT HAS TOLD US THAT HE RECEIVED THE MARIHUANA IN NEW
YORK.  THIS STATUTE, OF COURSE, IS OF APPLICATION THROUGHOUT THE LAND
AND THE PRESUMPTION WOULD STILL APPLY THAT THE NARCOTIC HAD BEEN
IMPORTED ILLEGALLY AND THAT HE KNEW IT HAD BEEN IMPORTED ILLEGALLY
UNLESS HE EXPLAINS HIS POSSESSION TO THE SATISFACTION OF THE JURY." 
APPENDIX 103A-104A. 

/53/  SEE 2 TRANSCRIPT OF RECORD 612-614. 

/54/  SEE 1 TRANSCRIPT OF RECORD 198-200; 2 TRANSCRIPT OF RECORD
492, 649. 

/55/  WE THINK IT IRRELEVANT THAT PETITIONER HIMSELF TESTIFIED AT
TRIAL THAT HE HAD NO KNOWLEDGE OF THE MARIHUANA'S ORIGIN.  THE
GOVERNMENT PUT IN NO AFFIRMATIVE EVIDENCE OF KNOWLEDGE, AND THE JURY
WAS INSTRUCTED THAT IT COULD CONVICT UNDER THE "NORTH-SOUTH" THEORY,
RELYING UPON THE SEC. 176A PRESUMPTION TO PERMIT AN INFERENCE OF
KNOWLEDGE.  THE TRIAL JUDGE DID NOT MENTION PETITIONER'S TESTIMONY ON
THIS POINT IN HIS INSTRUCTIONS TO THE JURY.  SINCE THE PRESUMPTION IS
BY ITS TERMS REBUTTABLE, THE INTENDED IMPLICATION MUST HAVE BEEN THAT
THE JURY COULD CONVICT ON THE BASIS OF THE PRESUMPTION ONLY IF IT
DISBELIEVED THE TESTIMONY.  CF. CAUDILLO V. UNITED STATES, 253 F.2D
513, 518 (1958). 

/56/  ONE TEST WAS WHETHER THERE WAS A "RATIONAL CONNECTION" BETWEEN
THE BASIC FACT AND THE PRESUMED FACT.  SEE MOBILE, J. & K.C.R. CO. V.
TURNIPSEED, 219 U.S. 35 (1910); MCFARLAND V. AMERICAN SUGAR RFG.  CO.,
241 U.S. 79 (1916); WESTERN & ATL. R. CO. V. HENDERSON, 279 U.S. 639
(1929); CF. YEE HEM V. UNITED STATES, 268 U.S. 178 (1925).  A SECOND
WAS WHETHER THE LEGISLATURE MIGHT HAVE MADE IT A CRIME TO DO THE THING
FROM WHICH THE PRESUMPTION AUTHORIZED AN INFERENCE.  SEE FERRY V.
RAMSEY, 277 U.S. 88 (1928).  A THIRD WAS WHETHER IT WOULD BE MORE
CONVENIENT FOR THE DEFENDANT OR FOR THE PROSECUTION TO ADDUCE EVIDENCE
OF THE PRESUMED FACT.  SEE MORRISON V. CALIFORNIA, 291 U.S. 82 (1934);
CF. ROSSI V. UNITED STATES, 289 U.S. 89 (1933); YEE HEM V. UNITED
STATES, SUPRA. 

/57/  SECTION 2(F) OF THE FEDERAL FIREARMS ACT, 52 STAT. 1251, 15
U.S.C. 902(F). 

/58/  MOBILE, J. & K.C.R. CO. V. TURNIPSEED, 219 U.S. 35 (1910). 

/59/  SEE N. 56, SUPRA. 

/60/  SEE IBID. 

/61/  FOR EXAMPLE, IT WAS ARGUED IN TOT THAT IN ORDER TO REGULATE
INTERSTATE COMMERCE IN FIREARMS CONGRESS MIGHT HAVE PROHIBITED
POSSESSION OF ALL FIREARMS BY PERSONS WHO HAD BEEN CONVICTED OF CRIMES
OF VIOLENCE. 

/62/  THE COURT DECLARED THAT THERE WAS EVEN LESS REASON TO CONCLUDE
FROM POSSESSION THAT THE ACQUISITION HAD OCCURRED SUBSEQUENT TO THE
EFFECTIVE DATE OF THE FIREARMS ACT. 

/63/  LIKE THE COURT IN TOT, WE LIMITED OURSELVES IN ROMANO TO
CONSIDERATION OF THE CRIME CONGRESS ACTUALLY HAD DEFINED.  WE OBSERVED
THAT CONGRESS HAD NOT CHOSEN TO MAKE PRESENCE AT AN ILLEGAL STILL A
CRIME IN ITSELF, BUT HAD ONLY "DECLARED) PRESENCE TO BE SUFFICIENT
EVIDENCE TO PROVE THE CRIME OF POSSESSION BEYOND REASONABLE DOUBT," AND
CONCLUDED THAT "(THIS APPROACH OBVIOUSLY FAILS UNDER THE STANDARDS
TRADITIONALLY APPLIED TO SUCH LEGISLATION."  382 U.S.,AT 144. 

/64/  SINCE WE FIND THAT THE SEC. 176A PRESUMPTION IS
UNCONSTITUTIONAL UNDER THIS STANDARD, WE NEED NOT REACH THE QUESTION
WHETHER A CRIMINAL PRESUMPTION WHICH PASSES MUSTER WHEN SO JUDGED MUST
ALSO SATISFY THE CRIMINAL "REASONABLE DOUBT" STANDARD IF PROOF OF THE
CRIME CHARGED OR AN ESSENTIAL ELEMENT THEREOF DEPENDS UPON ITS USE. 
CF. UNITED STATES V. ADAMS, 293 F.SUPP.  776, 783-784 (1968).  SEE ALSO
UNITED STATES V. ROMANO, SUPRA, AT 140-144; COMMENT, THE
CONSTITUTIONALITY OF STATUTORY CRIMINAL PRESUMPTIONS, 34 U.CHI.L.REV. 
141 (1966). 

/65/  THE PRESUMPTION ALSO PERMITS INFERENCE OF A THIRD ELEMENT:
THAT THE IMPORTATION OR BRINGING IN WAS WITH INTENT TO DEFRAUD THE
UNITED STATES.  THE PERMISSIBILITY OF THIS INFERENCE WAS NOT ONE OF THE
QUESTIONS PRESENTED IN LEARY'S PETITION FOR CERTIORARI, AND ON THE VIEW
WE TAKE OF THIS BRANCH OF THE CASE WE HAVE NO OCCASION TO CONSIDER IT. 

/66/  SEE 1 TRANSCRIPT OF RECORD 165, 186-187.  PETITIONER ATTEMPTED
TO INTRODUCE FURTHER EVIDENCE CONCERNING THE PROPORTION OF DOMESTICALLY
CONSUMED MARIHUANA WHICH IN FACT HAS BEEN GROWN IN THE UNITED STATES,
BUT THE DISTRICT COURT HELD IT IRRELEVANT AND THEREFORE INADMISSIBLE. 
SEE 2 TRANSCRIPT OF RECORD 517. 

/67/  SEE SUPRA, AT 34 AND N. 63. 

/68/  A STATUTE BASED UPON A LEGISLATIVE DECLARATION OF FACTS IS
SUBJECT TO CONSTITUTIONAL ATTACK ON THE GROUND THAT THE FACTS NO LONGER
EXIST; IN RULING UPON SUCH A CHALLENGE A COURT MUST, OF COURSE, BE FREE
TO RE-EXAMINE THE FACTUAL DECLARATION.  SEE BLOCK V. HIRSH, 256 U.S.
135, 154-155 (1921); COMMUNIST PARTY V. SACB, 367 U.S. 1, 110-114
(1961). 

/69/  SEE S. REP. NO. 1997, 84TH CONG.,2D SESS., 7, 13 (1956); H.R.
REP. NO. 2388, 84TH CONG.,2D SESS., 3, 6 (1956); H.R. CONF. REP. NO.
2546, 84TH CONG.,2D SESS., 14 (1956); 102 CONG.REC.  269, 271, 9015,
10688, 12166. 

/70/  HEARINGS ON TRAFFIC IN, AND CONTROL OF, NARCOTICS,
BARBITURATES, AND AMPHETAMINES BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON WAYS AND MEANS, 84TH CONG. (1955-1956) (HEREINAFTER CITED
AS HOUSE HEARINGS); HEARINGS ON ILLICIT NARCOTICS TRAFFIC BEFORE THE
SUBCOMMITTEE ON IMPROVEMENTS IN THE FEDERAL CRIMINAL CODE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 84TH CONG.,1ST SESS. (1955) (HEREINAFTER
CITED AS SENATE HEARINGS). 

/71/  SENATE HEARINGS 18. 

/72/  SEE HOUSE HEARINGS 618, 1071; SENATE HEARINGS 2384, 2471-2472,
4370, 4630.  SEE ALSO HOUSE HEARINGS 889; SENATE HEARINGS 2893, 3488
3490; 102 CONG.REC.  269, 271. 

/73/  SEE SENATE HEARINGS 3488-3489. 

/74/  ID., AT 4814. 

/75/  ID., AT 599.  SEE ALSO SENATE HEARINGS 4167. 

/76/  COMPARE BUREAU OF NARCOTICS, REPORT ON THE TRAFFIC IN OPIUM
AND OTHER DANGEROUS DRUGS 67 (1956), WITH ID., AT 43 (1967).  THESE
SEIZURES ARE ESTIMATED TO REPRESENT 10% OF THE MARIHUANA ACTUALLY
SMUGGLED INTO THE UNITED STATES.  SEE APPENDIX 92A. 

/77/  SEE, E.G., J. ROSEVEAR, POT:  A. HANDBOOK OF MARIHUANA 118
(1967); BOUQUET, CANNABIS, PARTS III-V, 3 U.N.BULL.ON NARCOTICS, NO. 1,
22, 32-33 (1951); MAYOR'S COMMITTEE ON MARIHUANA, THE MARIHUANA PROBLEM
IN THE CITY OF NEW YORK 17-25 (1944); BLUM, MIND-ALTERING DRUGS AND
DANGEROUS BEHAVIOR:  DANGEROUS DRUGS, IN PRESIDENT'S COMMISSION ON LAW
ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:
NARCOTICS AND DRUG ABUSE 21, 24 (1967). 

/78/  SEE, E.G., ROSEVEAR, SUPRA, AT 117-131; BUREAU OF NARCOTICS,
REPORT ON THE TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS 2, 40 (1966);
BLUM, SUPRA, AT 24; CAHN, THE USER AND THE LAW, IN J. SIMMONS (ED.),
MARIHUANA:  MYTHS AND REALITIES (1967); MCGLOTHLIN, TOWARD A RATIONAL
VIEW OF MARIHUANA, IN SIMMONS (ED.), SUPRA, AT 195-198. 

/79/  SEE BUREAU OF NARCOTICS, REPORT ON THE TRAFFIC IN OPIUM AND
OTHER DANGEROUS DRUGS 66 (1962); ID., AT 78 (1963); ID., AT 84 (1964);
ID., AT 51 (1965); ID., AT 45 (1966); ID., AT 43 (1967). 

/80/  SEE BRIEF FOR THE UNITED STATES 40. 

/81/  SEE, E.G., BUREAU OF NARCOTICS, REPORT ON THE TRAFFIC IN OPIUM
AND OTHER DANGEROUS DRUGS 36 (1963); ID., AT 30 (1964); MANDEL, MYTHS
AND REALITIES OF MARIHUANA PUSHING, IN J. SIMMONS (ED.), MARIHUANA:
MYTHS AND REALITIES 58-110 (1967); PRESIDENT'S COMMISSION ON LAW
ENFORCEMENT AND ADMINISTRATION OF JUSTICE, REPORT:  THE CHALLENGE OF
CRIME IN A FREE SOCIETY 213 (1967); SIMMONS (ED.), SUPRA, AT 233;
UNITED STATES GOVERNMENT, REPORT ON THE WORKING OF THE INTERNATIONAL
TREATIES ON NARCOTIC DRUGS 17 (1966); ID., AT 24-25 (1967).  CONTRA,
SEE TRANSCRIPT OF PRETRIAL HEARING, JULY 15, 1968, UNITED STATES V.
ADAMS, 293 F.SUPP.  776 (1968), AT 67, 76 (TESTIMONY OF DR. RICHARD
SCHULTES, DIRECTOR OF HARVARD BOTANIC MUSEUM) (HEREAFTER 1
TRANSCRIPT).  SEE ALSO J. ROSEVEAR, POT:  A. HANDBOOK OF MARIHUANA 35,
119-120 (1967). 

/82/  IN 1967, 1,466 ACRES WERE DESTROYED.  SEE UNITED STATES
GOVERNMENT, REPORT ON THE WORKING OF THE INTERNATIONAL TREATIES ON
NARCOTIC DRUGS 9 (1967).  ACCEPTING THE BUREAU OF NARCOTICS' LOWEST
ESTIMATE OF YIELD PER ACRE, SEE BRIEF FOR THE UNITED STATES 38, N. 43,
THIS ACREAGE WOULD HAVE SUPPLIED OVER 1,200,000 POUNDS OF MARIHUANA. 
THIS IS ENOUGH FOR ABOUT 1,800,000,000 MARIHUANA CIGARETTES.  SEE
INFRA, AT 51 AND N. 109.     /83/  COMPARE BUREAU OF NARCOTICS, REPORT
ON THE TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS 12 (1959), WITH
UNITED STATES GOVERNMENT, REPORT ON THE WORKING OF THE INTERNATIONAL
TREATIES ON NARCOTIC DRUGS 9 (1967).  THE DECLINE WAS STEADY. 

/84/  COMPARE BUREAU OF NARCOTICS, REPORT ON THE TRAFFIC IN OPIUM
AND OTHER DANGEROUS DRUGS 43 (1959), WITH ID., AT 43 (1967). 

/85/  SEE N. 82, SUPRA. 

/86/  SEE BUREAU OF NARCOTICS, REPORT ON THE TRAFFIC IN OPIUM AND
OTHER DANGEROUS DRUGS 17 (1965); UNITED STATES GOVERNMENT, REPORT ON
THE WORKING OF THE INTERNATIONAL TREATIES ON NARCOTIC DRUGS 10 (1966);
ID., AT 9 (1967). 

/87/  SEE SUPRA, AT 39. 

/88/  MOST AUTHORITIES BELIEVE THAT MORE POTENT MARIHUANA CAN BE
GROWN IN A HOT, DRY CLIMATE.  SEE INFRA, AT 49 AND N. 102. 

/89/  SEE BUREAU OF NARCOTICS, REPORTS ON THE TRAFFIC IN OPIUM AND
OTHER DANGEROUS DRUGS 1956-1967; TRANSCRIPT OF PRETRIAL HEARING, JULY
24, 1968, UNITED STATES V. ADAMS, 293 F.SUPP.  776 (1968), AT 37-45
(HEREAFTER 2 TRANSCRIPT); UNITED STATES GOVERNMENT, REPORT ON THE
WORKING OF THE INTERNATIONAL TREATIES ON NARCOTIC DRUGS 17 (1966); ID.,
AT 24-25 (1967).  BUT CF. SENATE HEARINGS 3488-3490. 

/90/  SEE, E.G., BUREAU OF NARCOTICS, REPORT ON THE TRAFFIC IN OPIUM
AND OTHER DANGEROUS DRUGS 23 (1965) (SEIZURE OF ABOUT 1,800 POUNDS OF
MEXICAN MARIHUANA), 23-24 (SEIZURE OF ABOUT ONE TON OF MEXICAN
MARIHUANA), 24 (SEIZURE OF ABOUT 3 1/2 TONS OF MEXICAN MARIHUANA); ID.
(1966), AT 17 (SEIZURE OF ABOUT 600 POUNDS OF MEXICAN MARIHUANA).  BY
CONTRAST, THE LARGEST REPORTED SEIZURE OF MARIHUANA DEFINITELY GROWN IN
THE UNITED STATES INVOLVED ONLY ABOUT EIGHT POUNDS.  SEE ID., AT 7
(1967).  BUT SEE ALSO SENATE HEARINGS 3488-3490. 

/91/  SEE SUPRA, AT 34 AND N. 56. 

/92/  IN REFUSING TO FOLLOW THIS ASPECT OF THE REASONING IN YEE HEM,
WE INTIMATE NO OPINION WHATEVER ABOUT THE CONTINUED VALIDITY OF THE
PRESUMPTION RELATING TO "HARD" NARCOTICS, WHICH WAS SUSTAINED IN YEE
HEM AND IS NOW FOUND IN 21 U.S.C. 174.  AS WILL APPEAR, OUR HOLDING
THAT THE SEC. 176A "KNOWLEDGE" PRESUMPTION IS UNCONSTITUTIONAL RESTS
ENTIRELY UPON A DETAILED INQUIRY INTO THE AVAILABLE FACTS ABOUT THE
STATE OF MIND OF MARIHUANA USERS.  THE FACTS REGARDING "HARD" NARCOTICS
MAY WELL BE SIGNIFICANTLY DIFFERENT. 

/93/  NOTHING IN THE LEGISLATIVE HISTORY OF SEC. 176A IS OF AID IN
DETERMINING THE INTENDED SCOPE OF THE WORD "KNOWING," AS IT IS USED IN
THAT SECTION.  IN MAKING THAT DETERMINATION, WE HAVE EMPLOYED AS A
GENERAL GUIDE THE DEFINITION OF "KNOWLEDGE" WHICH APPEARS IN THE
PROPOSED OFFICIAL DRAFT OF THE MODEL PENAL CODE, AT 27 (1962).  THE
CODE PROVIDES: 

"WHEN KNOWLEDGE OF THE EXISTENCE OF A PARTICULAR FACT IS AN ELEMENT
OF AN OFFENSE, SUCH KNOWLEDGE IS ESTABLISHED IF A PERSON IS AWARE OF A
HIGH PROBABILITY OF ITS EXISTENCE, UNLESS HE ACTUALLY BELIEVES THAT IT
DOES NOT EXIST." 

/94/  SEE J. ROSEVEAR, POT:  A HANDBOOK OF MARIHUANA 124-125
(1967).  IT HAS BEEN ESTIMATED THAT THERE ARE 500,000 TO 1,000,000
"REGULAR"  MARIHUANA SMOKERS IN THE UNITED STATES AND 3,000,000 TO
5,000,000 "OCCASIONAL" USERS.  SEE J. SIMMONS (ED.), MARIHUANA:  MYTHS
AND REALITIES 232 (1967). 

/95/  SEE ID., AT 236; ROSEVEAR, SUPRA, AT 121-125. 

/96/  SEE IBID. 

/97/  SEE UNITED STATES V. ADAMS, 293 F.SUPP.  776, 780-781, 784-785
(1968). 

/98/  SEE BECKER, MARIHUANA:  A SOCIOLOGICAL OVERVIEW, IN D. SOLOMON
(ED.), THE MARIHUANA PAPERS 33, 47-50 (1966); MANDEL, MYTHS AND
REALITIES OF MARIHUANA PUSHING, IN SIMMONS (ED.), SUPRA, AT 58-110;
ROSEVEAR, SUPRA, AT 27-37, 117-131; SIMMONS (ED.), SUPRA, AT 231-234. 
IT SHOULD BE REMEMBERED THAT THERE ARE ESTIMATED TO BE AT LEAST
3,500,000 "REGULAR" OR "OCCASIONAL" MARIHUANA SMOKERS IN THE UNITED
STATES.  SEE N. 94, SUPRA. 

/99/  SEE AUTHORITIES CITED IN N. 98, SUPRA. 

/100/  SEE SUPRA, AT 39 (TESTIMONY OF COMMISSIONER ANSLINGER); HOUSE
HEARINGS 1071-1072, SENATE HEARINGS 4354-4355 (STATEMENTS OF DISTRICT
SUPERVISOR AMAN). 

/101/  SEE SENATE HEARINGS 3488-3489.  SEE ALSO HOUSE HEARINGS 288. 

/102/  SEE AUTHORITIES REFERRED TO IN A. HODAPP, MARIHUANA:  A
REVIEW OF THE LITERATURE FOR ANALYTICAL CHEMISTS 13 (1959); BOUQUET,
CANNABIS, PARTS I-II, 2 U.N.BULL.ON NARCOTICS, NO. 4, 14, 21-22 (1950);
CIBA FOUNDATION STUDY GROUP NO. 21, HASHISH:  ITS CHEMISTRY AND
PHARMACOLOGY 33 (1965); SIMMONS (ED.), SUPRA, AT 230. 

/103/  SEE AUTHORITIES CITED IN N. 100, SUPRA; ROSEVEAR, SUPRA, AT
32-33, 68; BOUGHEY, POT SCENES EAST AND WEST, IN SIMMONS (ED.), SUPRA,
AT 33-34; MAYOR'S COMMITTEE ON MARIHUANA, THE MARIHUANA PROBLEM IN THE
CITY OF NEW YORK 9 (1944); SIMMONS (ED.), SUPRA, AT 233. 

/104/  SEE ROSEVEAR, SUPRA, AT 32-33. 

/105/  SEE ID., AT 33. 

/106/  SEE 1 TRANSCRIPT 16-18, 541 (TESTIMONY OF DR. RICHARD
SCHULTES, DIRECTOR OF HARVARD BOTANIC MUSEUM). 

/107/  SEE 2 ID., AT 19-33 (TESTIMONY OF NARCOTICS AGENT WILLIAM
DURKIN).  SEE ALSO BUREAU OF NARCOTICS, REPORT ON THE TRAFFIC IN OPIUM
AND OTHER DANGEROUS DRUGS 17 (1966).  BUT CF. SENATE HEARINGS 3488
3489. 

/108/  SEE SIMMONS (ED.), SUPRA, AT 237; ROSEVEAR, SUPRA, AT 159;
BUREAU OF NARCOTICS, REPORT ON THE TRAFFIC IN OPIUM AND OTHER DANGEROUS
DRUGS 17 (1966).  SEE ALSO SENATE HEARINGS 3489. 

/109/  SEE ROSEVEAR, SUPRA, AT 29; MANDEL, MYTHS AND REALITIES OF
MARIHUANA PUSHING, IN SIMMONS (ED.), SUPRA, AT 78; SENATE HEARINGS
3489. 

/110/  SEE ROSEVEAR, SUPRA, AT 28.  SEE ALSO MANDEL, SUPRA, AT 78. 

/111/  2 TRANSCRIPT 26 (TESTIMONY OF NARCOTICS AGENT WILLIAM
DURKIN). 

/112/  SENATE HEARINGS 3489 (PRIOR TESTIMONY OF CUSTOMS AGENT
LAWRENCE FLEISHMAN). 

/113/  SEE SUPRA, AT 49 AND N. 102. 

/114/  SEE ROSEVEAR, SUPRA, AT 31-33. 

/115/  ID., AT 32. 

/116/  A CAREFUL EXAMINATION OF THE LOWER-COURT DECISIONS REGARDING
THE PRESUMPTION'S CONSTITUTIONALITY DOES NOT SUGGEST THE CONTRARY.  ALL
COURTS OF APPEALS WHICH HAVE RULED ON THE QUESTION HAVE SUSTAINED THE
PRESUMPTION.  SEE CAUDILLO V. UNITED STATES, 253 F.2D 513 (C.A. 9TH
CIR. 1958); COSTELLO V. UNITED STATES, 324 F.2D 260, 263-264 (C.A. 9TH
CIR. 1963); UNITED STATES V. SOTO, 256 F.2D 729, 735 (C.A. 7TH CIR.
1958); BORNE V. UNITED STATES, 332 F.2D 565, 566 (C.A. 5TH CIR. 1964);
UNITED STATES V. GIBSON, 310 F.2D 79, 82 (C.A. 2D CIR. 1962).  HOWEVER,
THERE IS NO INDICATION THAT IN ANY OF THESE CASES THE COURT HAD BEFORE
IT OR TOOK INTO ACCOUNT EVEN A FRACTION OF THE EVIDENCE WHICH WE HAVE
CONSIDERED; IN ONE INSTANCE, THE LACK OF EVIDENCE WAS EXPRESSLY STATED
TO BE THE GROUND OF DECISION.  SEE UNITED STATES V. GIBSON, SUPRA.  SEE
ALSO COSTELLO V. UNITED STATES, SUPRA.  THE ONLY LOWER COURT WHICH
CONDUCTED A FACTUAL INQUIRY IN ANY WAY COMPARABLE TO OUR OWN ALSO HELD
THE PRESUMPTION UNCONSTITUTIONAL.  SEE UNITED STATES V. ADAMS, 293
F.SUPP.  776 (D.C.S.D.N.Y. 1968). 

MR. CHIEF JUSTICE WARREN JOINS PART II OF THE OPINION OF THE COURT
AND, CONSIDERING HIMSELF BOUND BY THE DECISIONS IN MARCHETTI V. UNITED
STATES, 390 U.S. 39 (1968), GROSSO V. UNITED STATES, 390 U.S. 62
(1968), AND HAYNES V. UNITED STATES, 390 U.S. 85 (1968), CONCURS IN THE
RESULT AS TO PART I.

#*DOP

MR. JUSTICE STEWART, CONCURRING. 

I JOIN PART II OF THE COURT'S OPINION.  AS TO PART I, I HAVE BEFORE
NOW EXPRESSED MY CONVICTION THAT THE FIFTH AMENDMENT GUARANTEE AGAINST
COMPULSORY SELF-INCRIMINATION WAS ORIGINALLY INTENDED TO DO NO MORE
THAN CONFER A TESTIMONIAL PRIVILEGE IN A JUDICIAL PROCEEDING.  /1/  BUT
THE COURT THROUGH THE YEARS HAS DRIFTED FAR FROM THAT MOORING; THE
MARCHETTI AND GROSSO CASES /2/  ARE SIMPLY THE MOST RECENT IN A LONG
LINE OF DECISIONS MARKING THE EXTENT OF THE DRIFT.  PERHAPS SOME DAY
THE COURT WILL CONSIDER A FUNDAMENTAL RE-EXAMINATION OF ITS DECISIONS
IN THIS AREA, IN THE LIGHT OF THE ORIGINAL CONSTITUTIONAL MEANING. 
UNTIL THAT DAY COMES, IT SEEMS TO ME THAT THE AUTHORITATIVE WEIGHT OF
PRECEDENT PERMITS NO ESCAPE FROM THE CONCLUSION REACHED BY THE COURT IN
THIS CASE.  I THEREFORE JOIN ITS OPINION AND JUDGMENT. 

/1/  SEE GROSSO V. UNITED STATES, 390 U.S. 62, 76 (CONCURRING
OPINION); IN RE GAULT, 387 U.S. 1, 80, N. 3 (DISSENTING OPINION). 

/2/  MARCHETTI V. UNITED STATES, 390 U.S. 39; GROSSO V. UNITED
STATES, 390 U.S. 62. 

MR. JUSTICE BLACK, CONCURRING IN THE RESULT. 

I CONCUR IN THE COURT'S OUTRIGHT REVERSAL OF THE PETITIONER'S
CONVICTION ON COUNT 3 OF THE INDICTMENT FOR THE REASONS SET OUT IN PART
I OF THE COURT'S OPINION. 

I ALSO CONCUR IN REVERSAL OF THE PETITIONER'S CONVICTION ON COUNT 2
OF THE INDICTMENT, BASED ON 21 U.S.C. 176A.  THAT SECTION MAKES IT A
CRIME TO IMPORT MARIHUANA INTO THE UNITED STATES OR TO RECEIVE,
CONCEAL, OR TRANSPORT IT, KNOWING IT TO HAVE BEEN IMPORTED CONTRARY TO
LAW, AND THEN GOES ON TO PROVIDE THAT THE MERE POSSESSION OF MARIHUANA
SHALL BE "DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION UNLESS THE
DEFENDANT EXPLAINS HIS POSSESSION TO THE SATISFACTION OF THE JURY." 
THE TRIAL COURT IN THIS CASE CHARGED THE JURY THAT PROOF THAT
PETITIONER MERELY HAD POSSESSION OF MARIHUANA WAS SUFFICIENT TO
AUTHORIZE A FINDING THAT HE KNEW IT HAD BEEN IMPORTED OR BROUGHT INTO
THE UNITED STATES CONTRARY TO LAW.  IT IS CLEAR BEYOND DOUBT THAT THE
FACT OF POSSESSION ALONE IS NOT ENOUGH TO SUPPORT AN INFERENCE THAT THE
POSSESSOR KNEW IT HAD BEEN IMPORTED.  CONGRESS HAS NO MORE
CONSTITUTIONAL POWER TO TELL A JURY IT CAN CONVICT UPON ANY SUCH FORCED
AND BASELESS INFERENCE THAN IT HAS POWER TO TELL JURIES THEY CAN
CONVICT A DEFENDANT OF A CRIME WITHOUT ANY EVIDENCE AT ALL FROM WHICH
AN INFERENCE OF GUILT COULD BE DRAWN.  SEE THOMPSON V. LOUISVILLE, 362
U.S. 199 (1960).  UNDER OUR SYSTEM OF SEPARATION OF POWERS, CONGRESS IS
JUST AS COMPETENT TO INSTRUCT THE JUDGE AND JURY IN AN AMERICAN COURT
WHAT EVIDENCE IS ENOUGH FOR CONVICTION AS THE COURTS ARE TO TELL THE
CONGRESS WHAT POLICIES IT MUST ADOPT IN WRITING CRIMINAL LAWS.  THE
CONGRESSIONAL PRESUMPTION, THEREFORE, VIOLATES THE CONSTITUTIONAL RIGHT
OF A DEFENDANT TO BE TRIED BY JURY IN A COURT SET UP IN ACCORDANCE WITH
THE COMMANDS OF THE CONSTITUTION.  IT CLEARLY DEPRIVES A DEFENDANT OF
HIS RIGHT NOT TO BE CONVICTED AND PUNISHED FOR A CRIME WITHOUT DUE
PROCESS OF LAW, THAT IS, IN A FEDERAL CASE, A TRIAL BEFORE AN
INDEPENDENT JUDGE, AFTER AN INDICTMENT BY GRAND JURY, WITH
REPRESENTATION BY COUNSEL, AN OPPORTUNITY TO SUMMON WITNESSES IN HIS
BEHALF, AND AN OPPORTUNITY TO CONFRONT THE WITNESSES AGAINST HIM.  THIS
RIGHT TO A FULL-FLEDGED TRIAL IN A COURT OF LAW IS GUARANTEED TO EVERY
DEFENDANT BY ARTICLE III OF THE CONSTITUTION, BY THE SIXTH AMENDMENT,
AND BY THE FIFTH AND FOURTEENTH AMENDMENTS' PROMISES THAT NO PERSON
SHALL BE DEPRIVED OF HIS LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS
OF LAW-- THAT IS, A TRIAL ACCORDING TO THE LAW OF THE LAND, BOTH
CONSTITUTIONAL AND STATUTORY. 

IT IS FOR THESE REASONS, AND NOT BECAUSE I THINK THE LAW IS
"'IRRATIONAL' OR 'ARBITRARY,' AND HENCE UNCONSTITUTIONAL," ANTE, AT 36,
THAT I WOULD INVALIDATE THIS PRESUMPTION.  I AM FIRMLY AND PROFOUNDLY
OPPOSED TO CONSTRUING "DUE PROCESS" AS AUTHORIZING THIS COURT TO
INVALIDATE STATUTES ON ANY SUCH NEBULOUS GROUNDS.  MY QUITE DIFFERENT
REASONS FOR HOLDING THAT THE PRESUMPTION DOES DENY DUE PROCESS OF LAW,
THAT IS THE BENEFIT OF THE "LAW OF THE LAND," HAVE BEEN FULLY SET OUT
IN MANY OPINIONS, INCLUDING, FOR ILLUSTRATION, MY CONCURRING OPINION IN
TOT V. UNITED STATES, 319 U.S. 463, 473 (1943), AND MY DISSENTING
OPINION IN UNITED STATES V. GAINEY, 380 U.S. 63, 74 (1965). 

ROBERT J. HAFT ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

JOHN S. MARTIN, JR., ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL VINSON, AND BEATRICE ROSENBERG. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY JONATHAN
SOBELOFF AND MELVIN L. WULF FOR THE AMERICAN CIVIL LIBERTIES UNION, AND
BY JOSEPH S. OTERI FOR THE NATIONAL STUDENT ASSN.
..END :























UNITED STATES V. COVINGTON, 395 U.S. 57 


       UNITED STATES V. COVINGTON. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF OHIO. 

        NO. 366.  ARGUED DECEMBER 12, 1968.-- DECIDED MAY 19,
1969. 


IN THIS COMPANION CASE TO LEARY V. UNITED STATES, ANTE, P. 6,
APPELLEE WAS CHARGED IN A ONE-COUNT INDICTMENT IN THE SOUTHERN DISTRICT
OF OHIO WITH HAVING VIOLATED A PROVISION OF THE MARIHUANA TAX ACT BY
HAVING OBTAINED A QUANTITY OF MARIHUANA WITHOUT HAVING PAID THE
TRANSFER TAX IMPOSED BY THE ACT.  APPELLEE, ASSERTING THAT HIS
POSSESSION OF MARIHUANA WAS ILLEGAL UNDER OHIO LAW AND THAT HE WOULD
HAVE SUBSTANTIALLY RISKED INCRIMINATION HAD HE COMPLIED WITH THE ACT,
MOVED TO DISMISS THE INDICTMENT UNDER THE AUTHORITY OF MARCHETTI V.
UNITED STATES, 390 U.S. 39, GROSSO V. UNITED STATES, 390 U.S. 62, AND
HAYNES V. UNITED STATES, 390 U.S. 85.  THE DISTRICT COURT UPHELD THE
MOTION TO DISMISS ON THE GROUND THAT THE FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION PROVIDED A COMPLETE DEFENSE TO PROSECUTION
AND ALTERNATIVELY THAT IF (AS THE GOVERNMENT CONTENDED) APPELLEE WAS
NOT REQUIRED TO PAY THE TAX, THERE COULD BE NO BASIS FOR THE
INDICTMENT.  HELD: 

1.  THE DECISION WAS ONE WHICH MIGHT BE APPEALED DIRECTLY TO THIS
COURT UNDER 18 U.S.C. 3731:  IF THE DISMISSAL OF THE INDICTMENT RESTED
ON THE GROUND THAT THE FIFTH AMENDMENT PRIVILEGE WOULD BE A DEFENSE,
THEN THE DECISION WAS ONE "SUSTAINING A PLEA IN BAR"; IF THE DISMISSAL
WAS BASED ON ACCEPTANCE OF THE GOVERNMENT'S INTERPRETATION OF THE
MARIHUANA TAX ACT, THEN THE DECISION NECESSARILY WAS "BASED UPON (A)
CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT WAS FOUNDED."  P.
59. 

2.  THE MARIHUANA TAX ACT REQUIRES PERSONS LIKE APPELLEE TO PREPAY
THE TRANSFER TAX.  LEARY V. UNITED STATES, SUPRA.  P. 59. 

3.  THE FIFTH AMENDMENT PRIVILEGE PROVIDES A COMPLETE DEFENSE TO
PROSECUTION UNDER THAT ACT IF THE DEFENDANT'S PLEA OF SELF
INCRIMINATION IS TIMELY, THE DEFENDANT CONFRONTS A SUBSTANTIAL RISK OF
SELF-INCRIMINATION BY COMPLYING WITH THE ACT'S TERMS, AND HE HAS NOT
WAIVED HIS PRIVILEGE.  IBID.  PP. 59-61. 

282 F.SUPP.  886, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO LEARY V. UNITED STATES, DECIDED TODAY,
ANTE, P. 6.  APPELLEE WAS CHARGED IN A ONE-COUNT FEDERAL INDICTMENT IN
THE SOUTHERN DISTRICT OF OHIO WITH HAVING VIOLATED 26 U.S.C.
4744(A)(1), A PART OF THE MARIHUANA TAX ACT, BY OBTAINING 737.1 GRAMS
OF MARIHUANA WITHOUT HAVING PAID THE TRANSFER TAX IMPOSED BY 26 U.S.C.
4741(A).  /1/  ON APPELLEE'S MOTION, THE DISTRICT COURT DISMISSED THE
INDICTMENT, HOLDING THAT UNDER PRINCIPLES ESTABLISHED IN MARCHETTI V.
UNITED STATES, 390 U.S. 39 (1968), GROSSO V. UNITED STATES, 390 U.S. 62
(1968), AND HAYNES V. UNITED STATES, 390 U.S. 85 (1968), APPELLEE'S
PRIVILEGE AGAINST SELF-INCRIMINATION NECESSARILY WOULD PROVIDE A
COMPLETE DEFENSE TO THE PROSECUTION.  282 F.SUPP.  886 (1968). 

ON MOTION FOR RECONSIDERATION, THE GOVERNMENT ADVANCED THE ARGUMENT,
MORE FULLY DESCRIBED IN LEARY, SUPRA, AT 18-20, THAT THE TRANSFER TAX
PROVISIONS OF THE MARIHUANA TAX ACT DO NOT COMPEL INCRIMINATORY
DISCLOSURES BECAUSE, AS ADMINISTRATIVELY CONSTRUED AND APPLIED, THEY
ALLOW PREPAYMENT OF THE TAX ONLY BY PERSONS WHOSE ACTIVITIES ARE
OTHERWISE LAWFUL.  THE DISTRICT COURT RESPONDED BY RULING IN THE
ALTERNATIVE THAT IF APPELLEE WAS NOT REQUIRED TO PAY THE TAX THERE
COULD BE NO BASIS FOR THE INDICTMENT.  APPENDIX 20. 

THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT PURSUANT TO 18 U.S.C.
3731, WHICH AUTHORIZES DIRECT APPEAL FROM THE DISMISSAL OF AN
INDICTMENT WHEN THE DECISION IS ONE "SUSTAINING A MOTION IN BAR" OR "IS
BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE
INDICTMENT OR INFORMATION IS FOUNDED."  WE NOTED PROBABLE JURISDICTION,
393 U.S. 910 (1968), /2/  AND THE APPEAL WAS ARGUED TOGETHER WITH LEARY
V. UNITED STATES, SUPRA. 

AS HAS BEEN NOTED, THE DISTRICT COURT DISMISSED THE INDICTMENT ON
TWO ALTERNATIVE GROUNDS.  WE BEGIN WITH THE SECOND, WHICH WAS THAT,
ASSUMING THE GOVERNMENT'S CONSTRUCTION OF THE MARIHUANA TAX ACT TO BE
CORRECT, THE INDICTMENT DID NOT CHARGE AN OFFENSE UNDER THAT STATUTE. 
OUR DECISION TODAY IN LEARY, SUPRA, MAKES IT PLAIN THAT THIS WAS AN
IMPROPER GROUND OF DISMISSAL, FOR WE HAVE HELD THAT THE GOVERNMENT'S
INTERPRETATION IS INCORRECT AND THAT THE ACT REQUIRES PERSONS LIKE
APPELLEE TO PREPAY THE TRANSFER TAX.  SEE ANTE, AT 20-26. 

THE DISTRICT COURT'S OTHER BASIS FOR DISMISSAL WAS THAT APPELLEE'S
FIFTH AMENDMENT PRIVILEGE NECESSARILY WOULD PROVIDE A COMPLETE DEFENSE
TO THE PROSECUTION.  WE HAVE HELD TODAY IN LEARY THAT THE PRIVILEGE
DOES PROVIDE SUCH A DEFENSE UNLESS THE PLEA IS UNTIMELY, THE DEFENDANT
CONFRONTED NO SUBSTANTIAL RISK OF SELF-INCRIMINATION, OR THE PRIVILEGE
HAS BEEN WAIVED.  SEE ANTE, AT 27.  /3/  SEE ALSO MARCHETTI V. UNITED
STATES, 390 U.S. 39, 61 (1968).  THE QUESTIONS REMAIN WHETHER SUCH A
PLEA OF THE PRIVILEGE MAY EVER JUSTIFY DISMISSAL OF AN INDICTMENT, AND
IF SO WHETHER THIS IS SUCH AN INSTANCE. 

FEDERAL RULE OF CRIMINAL PROCEDURE 12(B)(1) STATES THAT:  "ANY
DEFENSE OR OBJECTION WHICH IS CAPABLE OF DETERMINATION WITHOUT THE
TRIAL OF THE GENERAL ISSUE MAY BE RAISED BEFORE TRIAL BY MOTION."  A
DEFENSE IS THUS "CAPABLE OF DETERMINATION" IF TRIAL OF THE FACTS
SURROUNDING THE COMMISSION OF THE ALLEGED OFFENSE WOULD BE OF NO
ASSISTANCE IN DETERMINING THE VALIDITY OF THE DEFENSE.  /4/  RULE
12(B)(4) ALLOWS THE DISTRICT COURT IN ITS DISCRETION TO POSTPONE
DETERMINATION OF THE MOTION TO TRIAL, AND PERMITS FACTUAL HEARINGS
PRIOR TO TRIAL IF NECESSARY TO RESOLVE ISSUES OF FACT PECULIAR TO THE
MOTION. 

IN MANY INSTANCES, A DEFENSE OF SELF-INCRIMINATION TO A MARIHUANA
TAX ACT PROSECUTION WILL BE "CAPABLE OF DETERMINATION WITHOUT THE TRIAL
OF THE GENERAL ISSUE."  A PLEA ON MOTION TO DISMISS THE INDICTMENT IS
PLAINLY TIMELY.  THE QUESTION WHETHER THE DEFENDANT FACED A SUBSTANTIAL
RISK OF INCRIMINATION IS USUALLY ONE OF LAW WHICH MAY BE RESOLVED
WITHOUT REFERENCE TO THE CIRCUMSTANCES OF THE ALLEGED OFFENSE.  THERE
MAY MORE FREQUENTLY BE INSTANCES WHEN THE ISSUE OF WAIVER WILL BE
SUITABLE FOR TRIAL TOGETHER WITH THE "GENERAL ISSUE."  /5/  HOWEVER,
THE QUESTION WHETHER THE PRIVILEGE HAS BEEN WAIVED ALSO IS ONE OF LAW,
AND IN MOST CASES THERE WILL BE NO FACTUAL DISPUTE ABOUT IT.  HENCE, WE
THINK THAT A DEFENDANT'S ASSERTION OF THE PRIVILEGE SHOULD BE
SUFFICIENT TO CREATE A LEGAL PRESUMPTION OF NONWAIVER, AND THUS TO
REQUIRE DISMISSAL OF THE INDICTMENT, UNLESS THE GOVERNMENT CAN REBUT
THE PRESUMPTION BY SHOWING A NEED FOR FURTHER FACTUAL INQUIRIES. 

APPLICATION OF THESE PRINCIPLES TO THIS APPEAL REQUIRES AFFIRMANCE. 
APPELLEE ASSERTED IN HIS MOTION TO DISMISS THAT HIS POSSESSION OF
MARIHUANA WAS ILLEGAL UNDER OHIO LAW, AND THAT HE WOULD HAVE RUN A
SUBSTANTIAL RISK OF INCRIMINATION HAD HE COMPLIED WITH THE ACT.  THE
DISTRICT COURT REACHED THE SAME CONCLUSION.  THE GOVERNMENT APPEARS TO
ACKNOWLEDGE THE ILLEGALITY OF APPELLEE'S POSSESSION.  /6/  WE CONCLUDE
THAT THERE IS NO POSSIBILITY OF ANY FACTUAL DISPUTE WITH REGARD TO THE
HAZARD OF INCRIMINATION. 

THERE IS IN THIS BRIEF RECORD NO INDICATION THAT APPELLEE WAIVED HIS
PRIVILEGE, AND THE GOVERNMENT HAS NEVER ALLEGED THE EXISTENCE OF A
FACTUAL CONTROVERSY ON THAT SCORE.  HENCE, WE THINK IT "JUST UNDER THE
CIRCUMSTANCES" THAT THE CASE BE FINALLY DISPOSED OF AT THIS LEVEL.  SEE
28 U.S.C. 2106; GROSSO V. UNITED STATES, 390 U.S. 62, 71-72 (1968);
HAYNES V. UNITED STATES, 390 U.S. 85, 100-101 (1968).  ACCORDINGLY, THE
JUDGMENT OF THE DISTRICT COURT IS

          AFFIRMED. 

/1/  THE RELEVANT PROVISIONS OF THE MARIHUANA TAX ACT ARE SET OUT
AND THEIR RELATIONSHIPS EXPLAINED IN LEARY V. UNITED STATES, SUPRA, AT
14-15. 

/2/  IF THE DISMISSAL RESTED ON THE GROUND THAT THE FIFTH AMENDMENT
PRIVILEGE WOULD BE A DEFENSE, THEN THE DECISION WAS ONE "SUSTAINING A
MOTION IN BAR."  SEE UNITED STATES V. MURDOCK, 284 U.S. 141 (1931).  IF
THE DISMISSAL WAS BASED ON A FINDING THAT UNDER THE GOVERNMENT'S
CONSTRUCTION OF THE MARIHUANA TAX ACT THE INDICTMENT STATED NO OFFENSE,
THEN THE DECISION NECESSARILY WAS "BASED UPON THE . . . CONSTRUCTION OF
THE STATUTE UPON WHICH THE INDICTMENT . . . (WAS) FOUNDED."  SEE UNITED
STATES V. BORDEN CO., 308 U.S. 188, 193 (1939). 

/3/  LEARY WAS CONVICTED UNDER 26 U.S.C. 4744(A)(2), PROHIBITING
TRANSPORTATION OR CONCEALMENT OF MARIHUANA BY ONE WHO ACQUIRED IT
WITHOUT HAVING PAID THE TRANSFER TAX, WHILE APPELLEE WAS INDICTED UNDER
26 U.S.C. 4744(A)(1), FORBIDDING SUCH ACQUISITION.  WE THINK IT CLEAR
THAT THERE IS NO SIGNIFICANT DISTINCTION BETWEEN THE STATUTES FOR
PURPOSES OF THE FIFTH AMENDMENT PRIVILEGE. 

/4/  SEE 8 J.MOORE, FEDERAL PRACTICE 12.04 (R. CRIPES ED. 1968); 2
L.ORFIELD, CRIMINAL PROCEDURE UNDER THE FEDERAL RULES 12.51-12.60
(1966). 

/5/  CF. LEARY V. UNITED STATES, SUPRA, AT 28-29. 

/6/  SEE BRIEF FOR THE UNITED STATES 3, N. 1. 

MR. CHIEF JUSTICE WARREN, CONSIDERING HIMSELF BOUND BY THE DECISIONS
IN MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968), GROSSO V. UNITED
STATES, 390 U.S. 62 (1968), AND HAYNES V. UNITED STATES, 390 U.S. 85
(1968), CONCURS IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE STEWART JOINS THE OPINION AND JUDGMENT OF THE COURT UPON
THE PREMISE STATED IN HIS CONCURRING OPINION IN LEARY V. UNITED STATES,
ANTE, P. 54. 

PHILIP A. LACOVARA ARGUED THE CAUSE FOR THE UNITED STATES, PRO HAC
VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL VINSON, AND BEATRICE ROSENBERG. 

WILLIAM J. DAVIS, BY APPOINTMENT OF THE COURT, 393 U.S. 973, AND
ROBERT J. HAFT ARGUED THE CAUSE FOR APPELLEE.  MR. DAVIS ALSO FILED A
BRIEF FOR APPELLEE. 
..END :



















IMMIGRATION SERVICE V. STANISIC, 395 U.S. 62 


       IMMIGRATION AND NATURALIZATION SERVICE V. STANISIC. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 297.  ARGUED FEBRUARY 25, 1969.-- DECIDED MAY 19,
1969. 


RESPONDENT, A YUGOSLAV CREWMAN, WHILE IN THE UNITED STATES UNDER A "D
1" CONDITIONAL LANDING PERMIT (GRANTING AN ALIEN CREWMAN TEMPORARY
SHORE LEAVE WHILE HIS SHIP IS IN PORT), APPEARED ON JANUARY 6, 1965, AT
THE PORTLAND, OREGON, OFFICE OF THE IMMIGRATION AND NATURALIZATION
SERVICE (INS) AND CLAIMED THAT HE FEARED PERSECUTION UPON RETURN TO
YUGOSLAVIA.  ON THE BASIS OF HIS STATEMENT THAT HE WOULD NOT RETURN TO
HIS SHIP, AND IN ACCORDANCE WITH SEC. 252(B) OF THE IMMIGRATION AND
NATIONALITY ACT (WHICH PROVIDES A PROCEDURE FOR THE DEPORTATION OF AN
ALIEN CREWMAN HOLDING A D-1 LANDING PERMIT WHERE IT IS DETERMINED THAT
HE DOES NOT INTEND TO DEPART ON THE VESSEL WHICH BROUGHT HIM) THE
DISTRICT DIRECTOR REVOKED RESPONDENT'S PERMIT.  RESPONDENT, HOWEVER,
WAS OFFERED THE OPPORTUNITY THE NEXT DAY TO PRESENT EVIDENCE SUPPORTING
THE PERSECUTION CLAIM, PURSUANT TO 8 CFR 253.1(E), UNDER WHICH AN ALIEN
CREWMAN WHOSE CONDITIONAL LANDING PERMIT HAD BEEN REVOKED AND WHO
CLAIMED THAT HE COULD NOT RETURN TO A COMMUNIST COUNTRY BECAUSE OF FEAR
OF PERSECUTION MIGHT BE TEMPORARILY "PAROLED" INTO THE UNITED STATES IN
THE DISCRETION OF THE DISTRICT DIRECTOR.  RESPONDENT PRESENTED NO
EVIDENCE, CONTENDING THAT HE DID NOT HAVE ENOUGH TIME TO PREPARE FOR
THE HEARING AND THAT HE WAS ENTITLED TO HAVE HIS CLAIM FOR ASYLUM HEARD
BY A SPECIAL INQUIRY OFFICER UNDER SEC. 242(B) OF THE ACT.  THE
DISTRICT DIRECTOR RULED AGAINST RESPONDENT AND ORDERED HIM RETURNED TO
HIS SHIP, THEN STILL IN PORT.  FOLLOWING A TEMPORARY STAY OF
DEPORTATION BY THE DISTRICT COURT, THE DISTRICT DIRECTOR ON THAT
COURT'S ORDER HELD A HEARING AT WHICH RESPONDENT PRESENTED EVIDENCE,
AND ON JANUARY 25, 1965, HELD THAT RESPONDENT HAD NOT SHOWN THAT HE
WOULD BE "PHYSICALLY PERSECUTED" IN YUGOSLAVIA.  THE DISTRICT COURT
UPHELD THAT FINDING AND REJECTED RESPONDENT'S CLAIM TO A SEC. 242(B)
HEARING.  RESPONDENT TOOK NO APPEAL BUT PETITIONED CONGRESS FOR A
PRIVATE BILL, PENDING ACTION ON WHICH THE INS STAYED DEPORTATION.  WHEN
RESPONDENT'S EFFORT FAILED, THE INS ORDERED HIM DEPORTED.  THE INS AND
LATER THE DISTRICT COURT ON THE BASIS OF THEIR PREVIOUS DETERMINATIONS
REJECTED RESPONDENT'S RENEWED CLAIM FOR A SEC. 242(B) HEARING.  THE
COURT OF APPEALS REVERSED, HOLDING THAT THE MATTER WAS NOT RES JUDICATA
BECAUSE THOSE DETERMINATIONS WERE BASED ON THE PREMISE THAT
RESPONDENT'S SHIP WAS STILL IN PORT; NOW, HOWEVER, THE SHIP HAD
DEPARTED AND RESPONDENT HAD STILL NOT BEEN DEPORTED.  THE COURT
CONCLUDED THAT SEC. 252(B) ONLY AUTHORIZED RESPONDENT'S "SUMMARY
DEPORTATION ABOARD THE VESSEL ON WHICH HE ARRIVED OR, WITHIN VERY
LIMITED TIME AFTER THAT VESSEL'S DEPARTURE, ABOARD ANOTHER VESSEL
PURSUANT TO ARRANGEMENTS MADE BEFORE (HIS) VESSEL DEPARTED," AND HELD
THAT RESPONDENT WAS ENTITLED TO A DE NOVO HEARING UNDER SEC. 242(B). 
HELD: 

1.  THE APPLICABLE PROCEDURE GOVERNING A REQUEST FOR ASYLUM MADE BY
A CREWMAN AGAINST WHOM SEC. 252(B) PROCEEDINGS HAVE BEEN INSTITUTED WAS
THE ONE SET FORTH IN 8 CFR 253.1(E), WHICH WAS PROMULGATED UNDER THE
ATTORNEY GENERAL'S STATUTORY POWER TO ACT UPON AN ALIEN'S REQUEST FOR
ASYLUM.  PP. 69-72. 

2.  AN ALIEN CREWMAN WHOSE TEMPORARY LANDING PERMIT IS PROPERLY
REVOKED PURSUANT TO SEC. 252(B) IS NOT ENTITLED TO A SEC. 242(B)
HEARING MERELY BECAUSE HIS DEPORTATION IS NOT FINALLY ARRANGED OR
EFFECTED WHEN HIS VESSEL LEAVES, AND UNDER SUCH CIRCUMSTANCES THE
ATTORNEY GENERAL MAY PROVIDE (AS HE DID IN 8 CFR 253.1(E) THAT THE
CREWMAN'S ASYLUM REQUEST BE HEARD BY A DISTRICT DIRECTOR.  PP. 72-79. 

3.  SINCE THE ATTORNEY GENERAL IS AUTHORIZED BY AN AMENDMENT TO SEC.
243(H) MADE AFTER RESPONDENT'S JANUARY 1965 HEARING BEFORE THE DISTRICT
DIRECTOR TO WITHHOLD DEPORTATION OF AN ALIEN FOUND TO BE SUBJECT TO
"PERSECUTION ON ACCOUNT OF RACE, RELIGION, OR POLITICAL OPINION," AND
NOT JUST "PHYSICAL PERSECUTION," THE CASE IS REMANDED FOR A NEW HEARING
BEFORE THE DISTRICT DIRECTOR.  P. 79. 

393 F.2D 539, REVERSED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE TYPE OF HEARING TO WHICH AN ALIEN CREWMAN IS
ENTITLED ON HIS CLAIM THAT HE WOULD SUFFER PERSECUTION UPON DEPORTATION
TO HIS NATIVE LAND.  THE COURT OF APPEALS SUSTAINED THE RESPONDENT
CREWMAN'S CONTENTION THAT HE MUST BE HEARD BY A SPECIAL INQUIRY OFFICER
/1/  IN A PROCEEDING CONDUCTED UNDER SEC. 242(B) OF THE IMMIGRATION AND
NATIONALITY ACT.  /2/  PETITIONER, THE IMMIGRATION AND NATURALIZATION
SERVICE, ARGUES THAT RESPONDENT'S CLAIM WAS PROPERLY HEARD AND
DETERMINED BY A DISTRICT DIRECTOR.  /3/  WE BROUGHT THE CASE HERE, 393
U.S. 912 (1968), TO RESOLVE THE CONFLICT ON THIS SCORE BETWEEN THE
DECISION BELOW AND THAT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT
TO KORDIC V. ESPERDY, 386 F.2D 232 (1967). 

        I. 

RESPONDENT, A NATIONAL OF YUGOSLAVIA, WAS A CREWMAN ABOARD THE
YUGOSLAV VESSEL, M/V SUMADIJA, WHEN IT DOCKED AT COOS BAY, OREGON, IN
LATE DECEMBER 1964.  HE REQUESTED AND WAS ISSUED A "D-1" CONDITIONAL
LANDING PERMIT, IN ACCORDANCE WITH 8 CFR 252.1(D)(1) AND SEC. 252(A)(1)
OF THE IMMIGRATION AND NATIONALITY ACT.  /4/  UNDER THESE PROVISIONS,
THE SERVICE MAY ALLOW A NONIMMIGRANT ALIEN CREWMAN TEMPORARY SHORE
LEAVE FOR 

"THE PERIOD OF TIME (NOT EXCEEDING TWENTY-NINE DAYS) DURING WHICH
THE VESSEL OR AIRCRAFT ON WHICH HE ARRIVED REMAINS IN PORT, IF THE
IMMIGRATION OFFICER IS SATISFIED THAT THE CREWMAN INTENDS TO DEPART ON
THE VESSEL OR AIRCRAFT ON WHICH HE ARRIVED."  IBID. 

ON JANUARY 6, 1965, WHILE ON SHORE LEAVE, RESPONDENT APPEARED AT THE
PORTLAND, OREGON, OFFICE OF THE IMMIGRATION AND NATURALIZATION
SERVICE.  HE CLAIMED THAT HE FEARED PERSECUTION UPON RETURN TO
YUGOSLAVIA, AND HE FLATLY STATED THAT HE WOULD NOT RETURN TO THE M/V
SUMADIJA.  ON THE BASIS OF THE LATTER STATEMENT, AND IN ACCORDANCE WITH
SEC. 252(B) OF THE ACT, THE DISTRICT DIRECTOR REVOKED RESPONDENT'S
LANDING PERMIT.  SECTION 252(B) PROVIDES: 

"(ANY IMMIGRATION OFFICER MAY, IN HIS DISCRETION, IF HE DETERMINES
THAT AN ALIEN . . . DOES NOT INTEND TO DEPART ON THE VESSEL OR AIRCRAFT
WHICH BROUGHT HIM, REVOKE THE CONDITIONAL PERMIT TO LAND WHICH WAS
GRANTED SUCH CREWMAN UNDER THE PROVISIONS OF SUBSECTION (A)(1), TAKE
SUCH CREWMAN INTO CUSTODY, AND REQUIRE THE MASTER OR COMMANDING OFFICER
OF THE VESSEL OR AIRCRAFT ON WHICH THE CREWMAN ARRIVED TO RECEIVE AND
DETAIL HOM ON BOARD SUCH VESSELL OR AIRCRAFT, IF PRACTICABLE, AND SUCH
CREWMAN SHALL BE DEPORTED FROM THE UNITED STATES AT THE EXPENSE OF THE
TRANSPORTATION LINE WHICH BROUGHT HIM TO THE UNITED STATES.  . . .
NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE THE PROCEDURE
PRESCRIBED IN SECTION 242 OF THIS ACT TO (SIC) CASES FALLING WITHIN THE
PROVISIONS OF THIS SUBSECTION." 

DEPORTATION WOULD SUBJECT HIM TO PERSECUTION.  HOWEVER, SEC. 243(H)
PERMITS THE ATTORNEY GENERAL TO WITHHOLD THE DEPORTATION OF ANY ALIEN
TO A COUNTRY IN WHICH HE WOULD BE SUBJECT TO PERSECUTION, AND
ANALOGOUSLY, 8 CFR 253.1(E) THEN PROVIDES:  /5/ 

"ANY ALIEN CREWMAN . . . WHOSE CONDITIONAL LANDING PERMIT ISSUED
UNDER SEC. 252.1(D)(1) OF THIS CHAPTER IS REVOKED WHO ALLEGES THAT HE
CANNOT RETURN TO A COMMUNIST, COMMUNIST-DOMINATED, OR COMMUNIST
OCCUPIED COUNTRY BECAUSE OF FEAR OF PERSECUTION IN THAT COUNTRY ON
ACCOUNT OF RACE, RELIGION, OR POLITICAL OPINION MAY BE PAROLED INTO THE
UNITED STATES . . . FOR THE PERIOD OF TIME AND UNDER THE CONDITIONS SET
BY THE DISTRICT DIRECTOR HAVING JURISDICTION OVER THE AREA WHERE THE
ALIEN CREWMAN IS LOCATED." 

THUS, ALTHOUGH RESPONDENT WAS ADMITTEDLY DEPORTABLE UNDER THE TERMS
OF SEC. 252(B), HE WAS NOT IMMEDIATELY RETURNED TO HIS VESSEL.  ON
JANUARY 7, HE WAS OFFERED THE OPPORTUNITY TO PRESENT EVIDENCE TO THE
DISTRICT DIRECTOR IN SUPPORT OF HIS CLAIM OF PERSECUTION. 

RESPONDENT PRESENTED NO EVIDENCE TO THE DISTRICT DIRECTOR.  RATHER,
HE CONTENDED THAT HE HAD NOT BEEN GIVEN SUFFICIENT TIME TO PREPARE FOR
THE HEARING, AND HE ALSO ARGUED THAT HE WAS ENTITLED TO HAVE HIS CLAIM
HEARD BY A SPECIAL INQUIRY OFFICER IN ACCORDANCE WITH THE GENERAL
PROVISIONS OF SEC. 242(B).  THE DISTRICT DIRECTOR RULED AGAINST
RESPONDENT AND, IN THE ABSENCE OF ANY EVIDENCE OF PROBABLE PERSECUTION,
ORDERED HIM RETURNED TO THE M/V SUMADIJA, WHICH WAS THEN STILL IN
PORT. 

RESPONDENT IMMEDIATELY SOUGHT RELIEF IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF OREGON, /6/  WHICH, WITHOUT OPINION,
TEMPORARILY STAYED HIS DEPORTATION AND REFERRED THE MATTER BACK TO THE
DISTRICT DIRECTOR FOR A HEARING ON THE MERITS OF RESPONDENT'S CLAIM. 
ON JANUARY 25, 1965, AFTER A HEARING AT WHICH RESPONDENT WAS
REPRESENTED BY COUNSEL AND PRESENTED EVIDENCE, THE DISTRICT DIRECTOR
HELD THAT RESPONDENT "HAS (NOT) SHOWN THAT HE WOULD BE PHYSICALLY
PERSECUTED IF HE WERE TO RETURN TO YUGOSLAVIA."  APPENDIX 22. 

ON RESPONDENT'S SUPPLEMENTAL PLEADINGS, THE DISTRICT COURT HELD THAT
THE DISTRICT DIRECTOR'S FINDINGS WERE SUPPORTED BY THE RECORD.  THE
COURT REJECTED RESPONDENT'S CLAIM THAT HE WAS ENTITLED TO A SEC. 242(B)
HEARING BEFORE A SPECIAL INQUIRY OFFICER, RELYING ON THE LAST SENTENCE
OF SEC. 252(B), WHICH PROVIDES:  "NOTHING IN THIS SECTION SHALL BE
CONSTRUED TO REQUIRE THE PROCEDURE PRESCRIBED IN SECTION 242 OF THIS
ACT TO CASES FALLING WITHIN THE PROVISIONS OF THIS SUBSECTION." 
VUCINIC (AND STANISIC) V. IMMIGRATION SERVICE, 243 F.SUPP.  113
(1965). 

RESPONDENT DID NOT APPEAL THE DISTRICT COURT'S DECISION.  INSTEAD,
IN JULY 1965, HE PETITIONED CONGRESS FOR A PRIVATE BILL, PENDING ACTION
ON WHICH THE SERVICE STAYED HIS DEPORTATION.  RESPONDENT'S EFFORT
PROVED UNSUCCESSFUL, AND ON JUNE 21, 1966, THE SERVICE ORDERED HIM TO
APPEAR FOR DEPORTATION TO YUGOSLAVIA. 

THE FOLLOWING DAY, RESPONDENT REASSERTED HIS CLAIM OF PERSECUTION
BEFORE THE SERVICE, AND REQUESTED THAT THE MATTER BE HEARD BY A SPECIAL
INQUIRY OFFICER PURSUANT TO SEC. 242.  THE SERVICE, AND SUBSEQUENTLY
THE DISTRICT COURT, DENIED RELIEF, BOTH HOLDING THAT THIS ISSUE HAD
PREVIOUSLY BEEN DETERMINED ADVERSELY TO RESPONDENT. 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED, STANISIC V.
IMMIGRATION SERVICE, 393 F.2D 539 (1968), HOLDING THAT THE MATTER WAS
NOT RES JUDICATA BECAUSE OF A SIGNIFICANT CHANGE OF CIRCUMSTANCES:  THE
DISTRICT DIRECTOR'S ADVERSE DETERMINATION IN 1965, AND THE DISTRICT
COURT'S UNAPPEALED APPROVAL THEREOF, WERE BASED ON THE UNSTATED PREMISE
THAT THE M/V SUMADIJA WAS STILL IN PORT; /7/  BUT NOW THE SHIP HAD LONG
SINCE SAILED, AND RESPONDENT STILL HAD NOT BEEN DEPORTED.  THE COURT
HELD THAT SEC. 252(B) ONLY AUTHORIZED RESPONDENT'S "SUMMARY DEPORTATION
ABOARD THE VESSEL ON WHICH HE ARRIVED OR, WITHIN A VERY LIMITED TIME
AFTER THAT VESSEL'S DEPARTURE, ABOARD ANOTHER VESSEL PURSUANT TO
ARRANGEMENTS MADE BEFORE . . . (HIS) VESSEL DEPARTED."  393 F.2D, AT
542-543.  SINCE NEITHER OF THESE CONDITIONS WAS MET, RESPONDENT COULD
NO LONGER BE DEPORTED PURSUANT TO THE DISTRICT DIRECTOR'S 1965
DETERMINATION; HE WAS ENTITLED TO A DE NOVO HEARING BEFORE A SPECIAL
INQUIRY OFFICER UNDER SEC. 242(B) OF THE ACT. 

        II. 

AT THE OUTSET, IT IS IMPORTANT TO RECOGNIZE THE DISTINCTION BETWEEN
A DETERMINATION WHETHER AN ALIEN IS STATUTORILY DEPORTABLE-- SOMETHING
NEVER CONTESTED BY RESPONDENT-- AND A DETERMINATION WHETHER TO GRANT
POLITICAL ASYLUM TO AN OTHERWISE PROPERLY DEPORTABLE ALIEN. 

DETERMINING THE DEPORTABILITY OF AN ALIEN . . . . "  SECTION 252(B)
PROVIDES A SPECIFIC PROCEDURE FOR THE DEPORTATION OF ALIEN CREWMEN
HOLDING D-1 LANDING PERMITS.  NEITHER OF THESE SECTIONS IS CONCERNED
WITH THE GRANTING OF ASYLUM. 

RELIEF FROM PERSECUTION, ON THE OTHER HAND, IS GOVERNED BY SECS.
212(D)(5) AND 243(H).  THE FORMER SECTION AUTHORIZED THE ATTORNEY
GENERAL, IN HIS DISCRETION, TO 

"PAROLE INTO THE UNITED STATES TEMPORARILY UNDER SUCH CONDITIONS AS
HE MAY PRESCRIBE FOR EMERGENT REASONS OR FOR REASONS DEEMED STRICTLY IN
THE PUBLIC INTEREST ANY ALIEN APPLYING FOR ADMISSION TO THE UNITED
STATES . . . . " 

THE LATTER AUTHORIZES THE ATTORNEY GENERAL 

"TO WITHHOLD DEPORTATION OF ANY ALIEN WITHIN THE UNITED STATES TO
ANY COUNTRY IN WHICH IN HIS OPINION THE ALIEN WOULD BE SUBJECT TO
PERSECUTION ON ACCOUNT OF RACE, RELIGION, OR POLITICAL OPINION AND FOR
SUCH PERIOD OF TIME AS HE DEEMS TO BE NECESSARY FOR SUCH REASON." 

NO STATUTE PRESCRIBES BY WHAT DELEGATE OF THE ATTORNEY GENERAL, OR
PURSUANT TO WHAT PROCEDURE, RELIEF SHALL BE GRANTED UNDER THESE
PROVISIONS.  BY REGULATION, THE DECISION TO GRANT PAROLE PURSUANT TO
SEC. 212(D)(5) RESTS WITH A DISTRICT DIRECTOR, 8 CFR 212.5(A), 253.2;
AND BY REGULATION, THE DECISION TO WITHHOLD DEPORTATION OF MOST ALIENS
PURSUANT TO SEC. 243(H) IS PRESENTLY MADE BY A SPECIAL INQUIRY
OFFICER.  /8/  8 CFR 242.8(A), 242.17(C). 

PRIOR TO 1960, NO REGULATION PROVIDED RELIEF TO AN ALIEN CREWMAN
WHOSE D-1 LANDING PERMIT WAS REVOKED BUT WHO CLAIMED THAT RETURN TO HIS
COUNTRY WOULD SUBJECT HIM TO PERSECUTION.  IN SZLAJMER V. ESPERDY, 188
F.SUPP.  491 (1960), A DISTRICT COURT HELD THAT A CREWMAN IN THIS
SITUATION WAS ENTITLED TO BE HEARD.  THE SERVICE RESPONDED BY
PROMULGATING 8 CFR 253.1(E), SUPRA, AT 67, THE REGULATION WHICH IT
APPLIED IN THE CASE AT BAR.  8 CFR 253.1(E) IS A HYBRID.  THE GROUNDS
FOR RELIEF ARE, FOR PRESENT PURPOSES, IDENTICAL TO THOSE OF SEC. 243(H)
OF THE ACT.  /9/  HOWEVER, BECAUSE THE SERVICE ADHERES TO THE VIEW THAT
A CREWMAN WHOSE D-1 PERMIT HAS BEEN REVOKED IS NOT "WITHIN THE UNITED
STATES" IN THE TECHNICAL SENSE OF THAT PHRASE, SEE LENG MAY MA V.
BARBER, 357 U.S. 185 (1958), IT TERMS THE RELIEF "PAROLE" INTO THE
UNITED STATES RATHER THAN "WITHHOLDING DEPORTATION."  WHATEVER
TERMINOLOGICAL AND CONCEPTUAL DIFFERENCES MAY EXIST, THE SUBSTANCE OF
THE RELIEF IS THE SAME.  /10/ 

THE SERVICE COULD PROVIDE THAT ALL PERSECUTION CLAIMS BE HEARD BY A
DISTRICT DIRECTOR, AND WE SEE NO REASON WHY THE SERVICE CANNOT VALIDLY
PROVIDE THAT THE PERSECUTION CLAIM OF AN ALIEN CREWMAN WHOSE D-1
LANDING PERMIT HAS BEEN REVOKED BE HEARD BY A DISTRICT DIRECTOR,
WHETHER OR NOT THE SHIP HAS DEPARTED.  IT MIGHT BE ARGUED, HOWEVER,
THAT THE SERVICE HAS NOT DONE SO; THAT 8 CFR 253.1(E) WAS DESIGNED TO
GOVERN THE DETERMINATION OF PERSECUTION CLAIMS ONLY WHEN SEC. 252(B) OF
THE ACT GOVERNED DETERMINATIONS OF DEPORTABILITY; AND THAT IF DEPARTURE
OF THE VESSEL RENDERS SEC. 252(B) INAPPLICABLE (A SUGGESTION WE
CONSIDER AND REJECT IN PART III, BELOW), THEN 8 CFR 253.1(E) LIKEWISE
BECOMES INAPPLICABLE. 

WHOSE CONDITIONAL LANDING PERMIT ISSUED UNDER SEC. 252.1(D)(1) (OF 8
CFR) . . . IS REVOKED"-- PRECISELY RESPONDENT'S SITUATION-- AND MAKES
NO REFERENCE TO THE DEPARTURE, VEL NON, OF THE VESSEL.  GRANTING THAT
THIS REGULATION AND ITS SUCCESSOR PROVISION ARE NOT FREE FROM
AMBIGUITY, WE FIND IT DISPOSITIVE THAT THE AGENCY RESPONSIBLE FOR
PROMULGATING AND ADMINISTERING THE REGULATION HAS INTERPRETED IT TO
APPLY EVEN WHEN THE VESSEL HAS DEPARTED.  E.G., KORDIC V. ESPERDY, 386
F.2D 232 (1967); GLAVIC V. BEECHIE, 225 F.SUPP.  24 (1963), AFF'D, 340
F.2D 91 (1964).  "(THE ULTIMATE CRITERION IS THE ADMINISTRATIVE
INTERPRETATION, WHICH BECOMES OF CONTROLLING WEIGHT UNLESS IT IS
PLAINLY ERRONEOUS OR INCONSISTENT WITH THE REGULATION."  BOWLES V.
SEMINOLE ROCK CO., 325 U.S. 410, 414 (1945). 

IN SUM, IT IS IMMATERIAL TO THE DECISION IN THIS CASE WHETHER SEC.
252(B)'S EXCEPTION TO THE SEC. 242(B) PROCEDURE IS, OR IS NOT,
APPLICABLE TO RESPONDENT.  THESE TWO PROVISIONS GOVERN ONLY THE
REVOCATION OF TEMPORARY LANDING PERMITS AND THE DETERMINATION OF
DEPORTABILITY, AND WE REITERATE THAT RESPONDENT DOES NOT CONTEST THE
DISTRICT DIRECTOR'S ACTION ON EITHER OF THESE SCORES.  THESE SECTIONS
DO NOT STATE WHO SHOULD HEAR AND DETERMINE A REQUEST FOR ASYLUM.  THAT
IS A MATTER GOVERNED BY REGULATION, AND UNDER THE APPLICABLE REGULATION
THE RESPONDENT RECEIVED HIS DUE. 

        III. 

WE DO NOT REST ON THIS GROUND ALONE, HOWEVER.  BOTH THE COURT BELOW
AND THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN KORDIC V. ESPERDY,
386 F.2D 232 (1967), ASSUMED THAT A CREWMAN'S STATUTORY ENTITLEMENT TO
A SEC. 242(B) HEARING ON HIS REQUEST FOR ASYLUM WAS COEXTENSIVE WITH
HIS RIGHT TO A SEC. 242(B) HEARING ON HIS STATUTORY DEPORTABILITY, AND
THE CASE WAS ARGUED HERE PRIMARILY ON THAT BASIS.  FOR THE BALANCE OF
THE OPINION WE THUS MAKE, ARGUENDO, THE SAME ASSUMPTION.  WE CONCLUDE,
CONTRARY TO THE COURT BELOW, THAT AN ALIEN CREWMAN MAY PROPERLY BE
DEPORTED PURSUANT TO SEC. 252(B) EVEN AFTER HIS SHIP HAS SAILED. 

        A. 

GENERALLY APPLICABLE ADMINISTRATIVE PROCEDURE PURSUANT TO WHICH A
SPECIAL INQUIRY OFFICER DETERMINES WHETHER AN ALIEN IS DEPORTABLE.  SEE
NN. 1 AND 2, SUPRA. 

THE HISTORY OF SEC. 252(B)'S NARROW EXCEPTION TO THE SEC. 242(B)
DEPORTATION PROCEDURE IS FOUND IN THE REPORT OF THE SENATE COMMITTEE ON
THE JUDICIARY, S. REP. NO. 1515, 81ST CONG.,2D SESS., WHICH PRECEDED
THE ENACTMENT OF THE IMMIGRATION AND NATIONALITY ACT.  ALIEN CREWMEN
HAD TRADITIONALLY BEEN GRANTED THE PRIVILEGE OF TEMPORARY ADMISSION OR
SHORE LEAVE "BECAUSE OF THE NECESSITY OF FREEING INTERNATIONAL COMMERCE
FROM UNNECESSARY BARRIERS AND CONSIDERATIONS OF COMITY WITH OTHER
NATIONS.  . . . " ID., AT 546.  A SERIOUS PROBLEM WAS CREATED, HOWEVER,
BY ALIEN CREWMEN WHO DESERTED THEIR SHIPS AND SECRETED THEMSELVES IN
THE UNITED STATES.  THE COMMITTEE FOUND THAT:     "(THE TEMPORARY
'SHORE LEAVE' ADMISSION OF ALIEN SEAMEN WHO REMAIN ILLEGALLY
CONSTITUTES ONE OF THE MOST IMPORTANT LOOPHOLES IN OUR WHOLE SYSTEM OF
RESTRICTION AND CONTROL OF THE ENTRY OF ALIENS INTO THE UNITED STATES. 
THE EFFORTS TO APPREHEND THESE ALIEN SEAMEN FOR DEPORTATION ARE
ENCUMBERED BY MANY TECHNICALITIES INVOKED IN BEHALF OF THE ALIEN SEAMEN
AND CREATE CONDITIONS INCIDENT TO ENFORCEMENT OF THE LAWS WHICH HAVE
TROUBLED THE AUTHORITIES FOR MANY YEARS."  ID., AT 550. 

TO AMELIORATE THIS PROBLEM, THE COMMITTEE RECOMMENDED THAT: 

"AUTHORITY SHOULD BE GRANTED TO IMMIGRATION OFFICERS IN A CASE WHERE
THE ALIEN CREWMAN INTENDS TO DEPART ON THE SAME VESSEL ON WHICH HE
ARRIVED, UPON A SATISFACTORY FINDING THAT AN ALIEN IS NOT A BONA FIDE
CREWMAN, TO REVOKE THE PERMISSION TO LAND TEMPORARILY, TO TAKE THE
ALIEN INTO CUSTODY, AND TO REQUIRE THE MASTER OF THE VESSEL ON WHICH HE
ARRIVED TO DETAIN HIM AND REMOVE HIM FROM THE COUNTRY."  ID., AT 558. 

UNLIKE SEC. 242(B), SEC. 252(B) DOES NOT PRESCRIBE THE PROCEDURES
GOVERNING THE DETERMINATION OF THE CREWMAN'S DEPORTABILITY, NOR DOES IT
CONFINE THAT DETERMINATION TO A SPECIAL INQUIRY OFFICER. 

        B. 

AS THE COURT OF APPEALS NOTED, THE SEC. 252(B) PROCEDURE GOVERNS A
NARROW RANGE OF CASES ONLY.  IT IS ENTIRELY INAPPLICABLE TO PERSONS
OTHER THAN ALIEN CREWMEN.  IT DOES NOT APPLY TO AN ALIEN CREWMAN WHO
ENTERS THE UNITED STATES ILLEGALLY WITHOUT OBTAINING ANY LANDING PERMIT
AT ALL, OR WHO ENTERS ON A "D-2" PERMIT ALLOWING HIM TO DEPART ON A
DIFFERENT VESSEL.  SEE N. 4, SUPRA.  THE SERVICE HAS HELD SEC. 252(B)
TO BE INAPPLICABLE EVEN TO A CREWMAN ISSUED A D-1 PERMIT UNLESS FORMAL
REVOCATION-- AS DISTINGUISHED FROM ACTUAL DEPORTATION-- TAKES PLACE
BEFORE HIS VESSEL LEAVES AMERICAN SHORES.  /11/  MATTER OF M-- , 5 I.&
N.DEC.  127 (1953); 8 CFR 252.2; SEE CHENG FAN KWOK V. IMMIGRATION
SERVICE, 392 U.S. 206, 207 (1968). 

LANDING PERMIT IS REVOKED AND THE ALIEN CREWMAN IS IMMEDIATELY RETURNED
TO THE VESSEL ON WHICH HE ARRIVED, WHICH, BY HYPOTHESIS, IS STILL IN A
UNITED STATES PORT.  AT THE TIME OF REVOCATION, THE CREWMAN USUALLY HAS
NOT TRAVELED FAR FROM THE PORT, /12/  SO THE BURDEN OF TRANSPORTING HIM
BACK TO THE VESSEL IS SMALL; THERE IS A READILY IDENTIFIABLE VESSEL AND
PLACE TO RETURN HIM TO; AND DURING HIS BRIEF SHORE LEAVE, WHICH CANNOT
EXCEED 29 DAYS, THE CREWMAN IS UNLIKELY TO HAVE ESTABLISHED SIGNIFICANT
PERSONAL OR BUSINESS RELATIONSHIPS IN THE UNITED STATES.  IN SHORT, THE
CREWMAN'S DEPORTATION MAY BE EXPEDITED, WITH MINIMUM HARDSHIP AND
INCONVENIENCE TO HIM, TO THE TRANSPORTATION COMPANY RESPONSIBLE FOR
HIM, /13/  AND TO THE SERVICE. 

THAT THIS IS NOT THE ONLY SITUATION TO WHICH THE SEC. 252(B)
PROCEDURE APPLIES, HOWEVER, IS EVIDENT FROM THE LANGUAGE OF SEC. 252(B)
ITSELF AND THE RELATED PROVISIONS OF SEC. 254.  /14/  SECTION 252(B)
REQUIRES THAT WHERE AN ALIEN CREWMAN'S LANDING PERMIT IS REVOKED HIS
TRANSPORTATION COMPANY MUST DETAIN HIM ABOARD THE VESSEL ON WHICH HE
ARRIVED, AND DEPORT HIM.  SECTION 254(A) IMPOSES A FINE ON THE COMPANY
AND SHIP'S MASTER, INTER ALIA, FOR FAILURE TO DETAIN OR DEPORT THE
CREWMAN "IF REQUIRED TO DO SO BY AN IMMIGRATION OFFICER."  HOWEVER,
SEC. 252(B)'S REQUIREMENT IS MODIFIED BY THE TERM, "IF PRACTICABLE";
AND SEC. 254(C) CORRELATIVELY PROVIDES: 

     "IF THE ATTORNEY GENERAL FINDS THAT DEPORTATION OF AN ALIEN

  CREWMAN . . . ON THE VESSEL OR AIRCRAFT ON WHICH HE ARRIVED IS

  IMPRACTICABLE OR IMPOSSIBLE, OR WOULD CAUSE UNDUE HARDSHIP TO

  SUCH ALIEN CREWMAN, HE MAY CAUSE THE ALIEN CREWMAN TO BE DEPORTED

  FROM THE PORT OF ARRIVAL OR ANY OTHER PORT ON ANOTHER VESSEL OR

  AIRCRAFT OF THE SAME TRANSPORTATION LINE, UNLESS THE ATTORNEY

  GENERAL FINDS THIS TO BE IMPRACTICABLE." 

THESE PROVISIONS CONTEMPLATE THAT AN ALIEN CREWMAN WHOSE TEMPORARY
LANDING PERMIT IS REVOKED PURSUANT TO SEC. 252(B) MAY BE DEPORTED ON A
VESSEL OTHER THAN THE ONE ON WHICH HE ARRIVED.  THE OTHER VESSEL SHOULD
PREFERABLY BE ONE OWNED BY THE TRANSPORTATION COMPANY WHICH BROUGHT HIM
TO THE UNITED STATES, /15/  BUT IF THIS IS NOT FEASIBLE, THE ATTORNEY
GENERAL MAY ORDER HIM DEPORTED BY OTHER MEANS, AT THE COMPANY'S
EXPENSE. 

THE COURT OF APPEALS RECOGNIZED THAT AN ALIEN CREWMAN MIGHT PROPERLY
BE DEPORTED ON A VESSEL OTHER THAN THE ONE WHICH BROUGHT HIM.  IT
NOTED, HOWEVER, THAT SEC. 254(C) HOLDS THE OWNER OF THAT VESSEL
RESPONSIBLE FOR ALL OF THE EXPENSES OF HIS DEPORTATION AND FURTHER
PROVIDES THAT THE VESSEL SHALL NOT BE GRANTED DEPARTURE CLEARANCE UNTIL
THOSE EXPENSES ARE PAID OR THEIR PAYMENT IS GUARANTEED.  /16/  FROM
THIS IT CONCLUDED THAT "THE SECTION CONTEMPLATES THAT THE ALTERNATIVE
ARRANGEMENT SHALL BE MADE WHILE THE VESSEL UPON WHICH THE CREWMAN
ARRIVED IS STILL IN PORT . . . . "  393 F.2D, AT 546.  SINCE
ARRANGEMENTS FOR RESPONDENT'S DEPORTATION HAD NOT BEEN MADE BEFORE THE
M/V SUMADIJA DEPARTED, THE SEC. 254(C), AND HENCE THE SEC. 252(B),
PROCEDURES WERE NO LONGER APPLICABLE:  WITH THE SHIP'S DEPARTURE,
RESPONDENT BECAME ENTITLED TO A HEARING PURSUANT TO SEC. 242(B). 

WE AGREE THAT THE "CLEARANCE" PROVISION OF SEC. 254(C) CONTEMPLATES
THAT THE CREWMAN'S DEPARTURE ON ANOTHER VESSEL MAY SOMETIMES BE
ACCOMPLISHED OR ARRANGED BEFORE THE VESSEL THAT BROUGHT HIM DEPARTS. 
IF, HOWEVER, THE CREWMAN'S VESSEL SAILS BEFORE ITS OWNER HAS PAID OR
GUARANTEED THE EXPENSES OF DEPORTATION, THE OWNER'S LIABILITY UNDER
SEC. 254(C) IS IN NO WAY DIMINISHED.  THE GOVERNMENT HAS MERELY LOST A
USEFUL MEANS OF COMPELLING PAYMENT OF COSTS WHICH MAY STILL BE
COLLECTED BY OTHER METHODS.  /17/  INDEED, AS THE COURT OF APPEALS
ITSELF NOTED, SEC. 254(C)'S FINANCIAL RESPONSIBILITY PROVISION IS NOT
LIMITED TO INSTANCES OF DEPORTATION PURSUANT TO SEC. 252(B), BUT
APPLIES TO THE DEPORTATION OF ALIEN CREWMEN IN A VARIETY OF SITUATIONS,
INCLUDING THOSE IN WHICH A SEC. 242(B) PROCEEDING HAS BEEN HELD, AND
THUS THOSE IN WHICH THE CREWMAN'S VESSEL MAY LONG SINCE HAVE DEPARTED. 
/18/ 

STRONG POLICIES SUPPORT THE CONCLUSION THAT A PROPERLY COMMENCED
SEC. 252(B) PROCEEDING DOES NOT AUTOMATICALLY ABORT UPON THE DEPARTURE
OF THE CREWMAN'S VESSEL.  IF THE CREWMAN WHOSE LANDING PERMIT HAS BEEN
REVOKED PURSUANT TO SEC. 252(B) ATTACKS THE DISTRICT DIRECTOR'S ACTION
IN A FEDERAL COURT, THE COURT WOULD USUALLY STAY HIS DEPORTATION
PENDING AT LEAST A PRELIMINARY HEARING.  EVEN COURTS WITH DOCKETS LESS
CROWDED THAN THOSE OF MOST OF OUR MAJOR PORT CITIES /19/  MAY NOT BE
ABLE TO HEAR THE MATTER FOR SEVERAL DAYS OR MORE, DURING WHICH TIME THE
VESSEL MAY OFTEN HAVE DEPARTED ACCORDING TO SCHEDULE.  IT REQUIRES
LITTLE LEGAL TALENT, MOREOVER, TO MANUFACTURE A COLORABLE CASE FOR A
TEMPORARY STAY OUT OF WHOLE CLOTH, AND TO DELAY PROCEEDINGS ONCE IN THE
FEDERAL COURTS.  THE NINTH CIRCUIT'S CONSTRUCTION WOULD, THUS,
ENCOURAGE FRIVOLOUS APPLICATIONS AND INTENTIONAL DELAYS DESIGNED TO
ASSURE THAT THE CREWMAN'S VESSEL DEPARTED BEFORE THE CASE WAS HEARD. 
ALTERNATIVELY, IT WOULD SO DISPOSE FEDERAL JUDGES NOT TO GRANT STAYS
THAT PERSONS PRESENTING MERITORIOUS APPLICATIONS MIGHT BE DEPORTED
WITHOUT THE OPPORTUNITY TO BE HEARD. 

WE AGREE WITH THE COURT BELOW THAT SEC. 252(B) IS A PROVISION OF
LIMITED APPLICABILITY.  BUT WE CONCLUDE THAT THE COURT'S CONSTRUCTION
WOULD RESTRICT ITS SCOPE TO A DEGREE NEITHER INTENDED BY CONGRESS NOR
SUPPORTED BY THE LANGUAGE OF THE ACT, AND THAT IT WOULD, AS A PRACTICAL
MATTER, RENDER SEC. 252(B) USELESS FOR THE VERY FUNCTION IT WAS
DESIGNED TO PERFORM. 

WE HOLD THAT AN ALIEN CREWMAN WHOSE TEMPORARY LANDING PERMIT IS
PROPERLY REVOKED PURSUANT TO SEC. 252(B) DOES NOT BECOME ENTITLED TO A
HEARING BEFORE A SPECIAL INQUIRY OFFICER UNDER SEC. 242(B) MERELY
BECAUSE HIS DEPORTATION IS NOT FINALLY ARRANGED OR EFFECTED WHEN HIS
VESSEL LEAVES, AND THAT UNDER THESE CIRCUMSTANCES THE ATTORNEY GENERAL
MAY PROVIDE-- AS HE DID IN 8 CFR 253.1(E), NOW 8 CFR 253.1(F)-- THAT
THE CREWMAN'S REQUEST FOR POLITICAL ASYLUM BE HEARD BY A DISTRICT
DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE. 

        IV. 

AT THE TIME OF RESPONDENT'S JANUARY 1965 HEARING BEFORE THE DISTRICT
DIRECTOR, SEC. 243(H) OF THE IMMIGRATION AND NATIONALITY ACT PROVIDED: 

     "THE ATTORNEY GENERAL IS AUTHORIZED TO WITHHOLD DEPORTATION OF

  ANY ALIEN WITHIN THE UNITED STATES TO ANY COUNTRY IN WHICH IN HIS

  OPINION THE ALIEN WOULD BE SUBJECT TO PHYSICAL PERSECUTION . . .

  . "  /20/ 

BY THE ACT OF OCTOBER 3, 1965, SEC. 11(F), 79 STAT. 918, THIS
PHRASE "PERSECUTION ON ACCOUNT OF RACE, RELIGION, OR POLITICAL
OPINION."  ALTHOUGH 8 CFR 253.1(E), THE REGULATION UNDER WHICH
RESPONDENT'S 1965 HEARING WAS CONDUCTED, DID NOT ITSELF CONTAIN ANY
RESTRICTION TO "PHYSICAL PERSECUTION," IT IS APPARENT FROM THE DISTRICT
DIRECTOR'S FINDINGS THAT HE READ SUCH A LIMITATION INTO THE
REGULATION.  /21/ 

WE BELIEVE, THEREFORE, THAT IT IS APPROPRIATE THAT RESPONDENT BE
GIVEN A NEW HEARING BEFORE THE DISTRICT DIRECTOR UNDER THE APPROPRIATE
STANDARD, AND WE REMAND THE CASE FOR THAT PURPOSE.  /22/ 

THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT IS REVERSED AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  A SPECIAL INQUIRY OFFICER IS "ANY IMMIGRATION OFFICER WHO THE
ATTORNEY GENERAL DEEMS SPECIALLY QUALIFIED TO CONDUCT SPECIFIED CLASSES
OF PROCEEDINGS . . . . "  IMMIGRATION AND NATIONALITY ACT, SEC.
101(B)(4), 66 STAT. 171, 8 U.S.C. 1101(B)(4).  THE SPECIAL INQUIRY
OFFICER HAS NO ENFORCEMENT DUTIES.  HE PERFORMS "NO FUNCTIONS OTHER
THAN THE HEARING AND DECISION OF ISSUES IN EXCLUSION AND DEPORTATION
CASES, AND OCCASIONALLY IN OTHER ADJUDICATIVE PROCEEDINGS."  1 C.GORDON
& H.ROSENFIELD, IMMIGRATION LAW AND PROCEDURE 5.7B, AT 5-49 (1967); SEE
GENERALLY ID., SEC. 5.7. 

/2/  66 STAT. 209, 8 U.S.C. 1252(B): 

"A SPECIAL INQUIRY OFFICER SHALL CONDUCT PROCEEDINGS UNDER THIS
ADMINISTER OATHS, PRESENT AND RECEIVE EVIDENCE, INTERROGATE, EXAMINE,
AND CROSS-EXAMINE THE ALIEN OR WITNESSES, AND, AS AUTHORIZED BY THE
ATTORNEY GENERAL, SHALL MAKE DETERMINATIONS, INCLUDING ORDERS OF
DEPORTATION.  . . . NO SPECIAL INQUIRY OFFICER SHALL CONDUCT A
PROCEEDING IN ANY CASE UNDER THIS SECTION IN WHICH HE SHALL HAVE
PARTICIPATED IN INVESTIGATIVE FUNCTIONS OR IN WHICH HE SHALL HAVE
PARTICIPATED (EXCEPT AS PROVIDED IN THIS SUBSECTION) IN PROSECUTING
FUNCTIONS.  PROCEEDINGS BEFORE A SPECIAL INQUIRY OFFICER ACTING UNDER
THE PROVISIONS OF THIS SECTION SHALL BE IN ACCORDANCE WITH SUCH
REGULATIONS, NOT INCONSISTENT WITH THIS ACT, AS THE ATTORNEY GENERAL
SHALL PRESCRIBE.  SUCH REGULATIONS SHALL INCLUDE REQUIREMENTS THAT-- 

"(1) THE ALIEN SHALL BE GIVEN NOTICE, REASONABLE UNDER ALL THE
CIRCUMSTANCES, OF THE NATURE OF THE CHARGES AGAINST HIM AND OF THE TIME
AND PLACE AT WHICH THE PROCEEDINGS WILL BE HELD; 

"(2) THE ALIEN SHALL HAVE THE PRIVILEGE OF BEING REPRESENTED (AT NO
EXPENSE TO GOVERNMENT) BY SUCH COUNSEL, AUTHORIZED TO PRACTICE IN SUCH
PROCEEDINGS, AS HE SHALL CHOOSE; 

"(3) THE ALIEN SHALL HAVE A REASONABLE OPPORTUNITY TO EXAMINE THE
EVIDENCE AGAINST HIM, TO PRESENT EVIDENCE IN HIS OWN BEHALF, AND TO
CROSS-EXAMINE WITNESSES PRESENTED BY THE GOVERNMENT; AND 

"(4) NO DECISION OF DEPORTABILITY SHALL BE VALID UNLESS IT IS BASED
UPON REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE. 

"THE PROCEDURE SO PRESCRIBED SHALL BE THE SOLE AND EXCLUSIVE
PROCEDURE FOR DETERMINING THE DEPORTABILITY OF AN ALIEN UNDER THIS

/3/  A DISTRICT DIRECTOR IS THE OFFICER IN CHARGE OF A DISTRICT
OFFICE OF THE IMMIGRATION AND NATURALIZATION SERVICE.  HE PERFORMS A
WIDE RANGE OF FUNCTIONS.  SEE 1 C.GORDON & H.ROSENFIELD, IMMIGRATION
LAW AND PROCEDURE 1.9C (1967); 8 CFR 103.1(F). 

/4/  SECTION 252(A), 66 STAT. 220, 8 U.S.C. 1282(A) PROVIDES: 

"NO ALIEN CREWMAN SHALL BE PERMITTED TO LAND TEMPORARILY IN THE
UNITED STATES EXCEPT AS PROVIDED IN THIS SECTION.  . . . IF AN
IMMIGRATION OFFICER FINDS UPON EXAMINATION THAT AN ALIEN CREWMAN IS A
NONIMMIGRANT . . . AND IS OTHERWISE ADMISSIBLE AND HAS AGREED TO ACCEPT
SUCH PERMIT, HE MAY, IN HIS DISCRETION, GRANT THE CREWMAN A CONDITIONAL
PERMIT TO LAND TEMPORARILY PURSUANT TO REGULATIONS PRESCRIBED BY THE
ATTORNEY GENERAL, SUBJECT TO REVOCATION IN SUBSEQUENT PROCEEDINGS AS
PROVIDED IN SUBSECTION (B), AND FOR A PERIOD OF TIME, IN ANY EVENT, NOT
TO EXCEED-- 

"(1) THE PERIOD OF TIME (NOT EXCEEDING TWENTY-NINE DAYS) DURING
WHICH THE VESSEL OR AIRCRAFT ON WHICH HE ARRIVED REMAINS IN PORT, IF
THE IMMIGRATION OFFICER IS SATISFIED THAT THE CREWMAN INTENDS TO DEPART
ON THE VESSEL OR AIRCRAFT ON WHICH HE ARRIVED; OR 

"(2) TWENTY-NINE DAYS, IF THE IMMIGRATION OFFICER IS SATISFIED THAT
THE CREWMAN INTENDS TO DEPART, WITHIN THE PERIOD FOR WHICH HE IS
PERMITTED TO LAND, ON A VESSEL OR AIRCRAFT OTHER THAN THE ONE ON WHICH
HE ARRIVED." 

"D-1" AND "D-2" LANDING PERMITS ARE PERMITS ISSUED PURSUANT TO 8 CFR
252.1(D)(1) AND 252.1(D)(2), WHICH IMPLEMENT SECS. 252(A)(1) AND
252(A)(2) OF THE ACT. 

/5/  26 FED.REG.  11797 (DECEMBER 8, 1961).  EFFECTIVE MARCH 22,
1967, THE SECTION WAS AMENDED AND REDESIGNATED SEC. 253.1(F), 32
FED.REG.  4341-4342. 

/6/  BECAUSE THE DISTRICT DIRECTOR'S DETERMINATION WAS NOT PURSUANT
TO SEC. 242(B), THE DISTRICT COURT HAD JURISDICTION TO REVIEW THIS
ACTION.  SEE CHENG FAN KWOK V. IMMIGRATION SERVICE, 392 U.S. 206
(1968); STANISIC V. IMMIGRATION SERVICE, 393 F.2D 539, 542 (1968);
VUCINIC (AND STANISIC) V. IMMIGRATION SERVICE, 243 F.SUPP.  113, 115
117 (1965); 5 U.S.C. 1009.     /7/  ACTUALLY, THE SHIP SAILED FROM THE
UNITED STATES ON OR ABOUT JANUARY 16, 1965, OR BETWEEN THE DATE ON
WHICH THE DISTRICT DIRECTOR REVOKED RESPONDENT'S LANDING PERMIT
(JANUARY 6, 1965), AND THE DATE ON WHICH, AFTER A HEARING, HE DENIED
RESPONDENT'S PERSECUTION CLAIM (JANUARY 25, 1965).  THIS FACT WAS NOT
IN THE RECORD BEFORE THE COURT OF APPEALS. 

/8/  THIS WAS NOT ALWAYS SO.  UNTIL 1962, THE FINAL DETERMINATION
WAS MADE BY A REGIONAL COMMISSIONER OF THE SERVICE.  8 CFR 243.3(B)(2)
(1958 REV.); SEE FOTI V. IMMIGRATION SERVICE, 375 U.S. 217, 230, N. 16
(1963). 

/9/  THE ONLY SUBSTANTIAL DIFFERENCE IS THAT THE REGULATION, BUT NOT
THE STATUTE, IS LIMITED TO COMMUNIST-INSPIRED PERSECUTION. 

/10/  FOR THIS REASON, WE HAVE NO OCCASION TO DECIDE WHETHER OR NOT
RESPONDENT WAS "WITHIN THE UNITED STATES."  COMPARE SZLAJMER V.
ESPERDY, 188 F.SUPP.  491 (1960), WITH KORDIC V. ESPERDY, 386 F.2D 232
(1967), AND GLAVIC V. BEECHIE, 225 F.SUPP.  24 (1963), AFF'D, 340 F.2D
91 (1964).  IT MAY FURTHER BE NOTED THAT SEC. 243(H), BY ITS TERMS,
"AUTHORIZES" BUT DOES NOT REQUIRE THE CONSIDERATION OF PERSECUTION
CLAIMS. 

/11/  THIS IS RESPONSIVE TO THE LANGUAGE OF SEC. 252(B).  PERMISSION
TO LAND TERMINATES UPON THE VESSEL'S DEPARTURE, AND THEREAFTER THERE IS
NOTHING TO "REVOKE." 

/12/  8 CFR 252.2(D) PROVIDES THAT A "CREWMAN GRANTED A CONDITIONAL
PERMIT TO LAND UNDER SECTION 252(A)(1) OF THE ACT . . . IS REQUIRED TO
DEPART WITH HIS VESSEL FROM ITS PORT OF ARRIVAL AND FROM EACH OTHER
PORT IN THE UNITED STATES TO WHICH IT THEREAFTER PROCEEDS COASTWISE
WITHOUT TOUCHING AT A FOREIGN PORT OR PLACE; HOWEVER, HE MAY REJOIN HIS
VESSEL AT ANOTHER PORT IN THE UNITED STATES BEFORE IT TOUCHES AT A
FOREIGN PORT OR PLACE IF HE HAS ADVANCE WRITTEN PERMISSION FROM THE
MASTER OR AGENT TO DO SO."  IN THE LATTER CASE THE CREWMAN MAY JOURNEY
SOME DISTANCE FROM THE PORT AT WHICH HE ARRIVED. 

/13/  SEE INFRA, THIS PAGE AND AT 76. 

/14/  66 STAT. 221, 8 U.S.C. 1284. 

/15/  THIS IS DOUBTLESS AN ACCOMODATION MADE IN THE LIGHT OF THE
TRANSPORTATION COMPANY'S LIABILITY FOR THE EXPENSES OF DEPORTATION. 

/16/  "ALL EXPENSES INCURRED IN CONNECTION WITH SUCH DEPORTATION,
INCLUDING EXPENSES INCURRED IN TRANSFERRING AN ALIEN CREWMAN FROM ONE
PLACE IN THE UNITED STATES TO ANOTHER UNDER SUCH CONDITIONS AND
SAFEGUARDS AS THE ATTORNEY GENERAL SHALL IMPOSE, SHALL BE PAID BY THE
OWNER OR OWNERS OF THE VESSEL OR AIRCRAFT ON WHICH THE ALIEN ARRIVED IN
THE UNITED STATES.  THE VESSEL OR AIRCRAFT ON WHICH THE ALIEN ARRIVED
SHALL NOT BE GRANTED CLEARANCE UNTIL SUCH EXPENSES HAVE BEEN PAID OR
THEIR PAYMENT GUARANTEED TO THE SATISFACTION OF THE ATTORNEY GENERAL .
. . . "  SEC. 254(C). 

/17/  THUS, IF AND WHEN RESPONDENT IS DEPORTED, THE OWNERS OF THE
M/V SUMADIJA WILL BE RESPONSIBLE FOR THE RELATED EXPENSES INCURRED BY
THE UNITED STATES. 

/18/  AND, ALTHOUGH WE DO NOT DECIDE THIS QUESTION, SEC. 254(C)
WOULD APPEAR TO ALLOW THE ATTORNEY GENERAL TO REQUIRE SECURITY FOR THE
PAYMENT OF ANTICIPATED EXPENSES OF DEPORTING AN ALIEN CREWMAN, EVEN
THOUGH NO FINAL ARRANGEMENTS HAVE BEEN MADE BEFORE THE VESSEL THAT
BROUGHT HIM DEPARTS. 

/19/  SEE GENERALLY 1968 DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS ANN.REP.,TABLES C, D, AND X (1968). 

/20/  66 STAT. 214. 

/21/  SEE SUPRA, AT 68; APPENDIX 18-22 PASSIM. 

/22/  RESPONDENT CONTENDS THAT HIS 1965 PROCEEDING WAS INFECTED WITH
VARIOUS CONSTITUTIONAL ERRORS, INCLUDING THE DISTRICT DIRECTOR'S
ALLEGED BIAS AND HIS COMBINATION OF PROSECUTORIAL, INVESTIGATIVE, AND
ADJUDICATORY FUNCTIONS.  BECAUSE THAT PROCEEDING IS NOT BEFORE US, AND
BECAUSE WE REMAND FOR A NEW HEARING, WE HAVE NO OCCASION TO CONSIDER
THESE ARGUMENTS, EXCEPT TO NOTE THAT NEITHER SEC. 252(B) OF THE
IMMIGRATION AND NATIONALITY ACT NOR 8 CFR 253.1(F), UNDER WHICH
RESPONDENT WILL BE HEARD ON REMAND, IS UNCONSTITUTIONAL ON ITS FACE. 
LIKEWISE, IT IS PREMATURE TO CONSIDER WHETHER, AND UNDER WHAT
CIRCUMSTANCES, AN ORDER OF DEPORTATION MIGHT CONTRAVENE THE PROTOCOL
AND CONVENTION RELATING TO THE STATUS OF REFUGEES, TO WHICH THE UNITED
STATES ACCEDED ON NOVEMBER 1, 1968.  SEE DEPT. STATE BULL.  VOL.  LIX,
NO. 1535, P. 538. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, DISSENTING. 

TWO PROCEDURES FOR THE DEPORTATION OF ALIENS ARE RELEVANT IN THIS
CASE.  THE FIRST IS SET FORTH IN SEC. 242(B) OF THE IMMIGRATION AND
NATIONALITY ACT, 66 STAT. 209, 8 U.S.C. 1252(B), AND IS THE PROCEDURE
REQUIRED IN MOST INSTANCES WHEN THE GOVERNMENT SEEKS TO DEPORT AN
ALIEN.  UNDER SEC. 242(B) A NUMBER OF PROCEDURAL SAFEGUARDS ARE
SPECIFIED TO INSURE THAT AN ALIEN IS GIVEN THE FULL BENEFIT OF A
COMPLETE AND FAIR HEARING BEFORE THE HARSH CONSEQUENCE OF DEPORTATION
CAN BE IMPOSED ON HIM.  /1/  THE SECOND PROCEDURE INVOLVED IN THIS CASE
IS SET FORTH IN SEC. 252(B).  IT IS APPLICABLE ONLY UNDER VERY SPECIAL
CIRCUMSTANCES INVOLVING ALIEN SEAMEN WHO ENTER THIS COUNTRY UNDER
CONDITIONAL LANDING PERMITS.  SECTION 252(B) PROVIDES FOR A SHORT,
SUMMARY PROCEDURE.  /2/  UNLIKE SEC. 242(B), THE FIRST PROVISION
MENTIONED, THIS SECOND PROVISION DOES NOT REQUIRE THAT THE HEARING
OFFICER BE SOMEONE UNCONNECTED WITH THE INVESTIGATION AND PROSECUTION
OF THE CASE.  IT DOES NOT REQUIRE SPECIFIC TRIAL SAFEGUARDS SUCH AS THE
RIGHTS TO NOTICE, COUNSEL, AND CROSS-EXAMINATION OF WITNESSES.  INDEED,
SEC. 252(B) APPARENTLY DOES NOT REQUIRE THAT THE ALIEN BE GIVEN ANY
HEARING AT ALL BUT WOULD SEEM TO AUTHORIZE AN IMMIGRATION OFFICER TO
ORDER IMMEDIATE ARREST AND SUMMARY DEPORTATION ON THE BASIS OF ANY
INFORMATION COMING TO HIM IN ANY WAY AT ANY TIME.  THE QUESTION BEFORE
THE COURT IS THEREFORE NOT THE APPARENTLY INSIGNIFICANT QUESTION
SUGGESTED BY THE COURT'S OPINION-- NAMELY, WHETHER THIS ALIEN'S CASE
WAS PROPERLY DETERMINED BY AN OFFICIAL WITH ONE TITLE, "DISTRICT
DIRECTOR," RATHER THAN ANOTHER TITLE, "SPECIAL INQUIRY OFFICER." 
INSTEAD, THE QUESTION IS THE CRUCIALLY SIGNIFICANT ONE WHETHER AN ALIEN
SEAMAN ABOUT TO BE FORCED TO LEAVE THE COUNTRY IS ENTITLED UNDER THE
CIRCUMSTANCES OF THIS CASE TO THE BENEFIT OF SAFEGUARDS THAT WERE
CAREFULLY PROVIDED BY CONGRESS TO INSURE GREATER FAIRNESS AND
RELIABILITY IN DEPORTATION PROCEEDINGS. 

THE REGULATIONS RELIED ON BY THE COURT IN PART II OF ITS OPINION DO
NOT PROVIDE AN INDEPENDENT BASIS FOR ITS HOLDING.  AMONG THE RELEVANT
REGULATIONS, 8 CFR 242.8(A) APPLIES "(IN ANY PROCEEDING CONDUCTED UNDER
THIS PART," NAMELY "PART 242-- PROCEEDINGS TO DETERMINE DEPORTABILITY
OF ALIENS IN THE UNITED STATES:  APPREHENSION, CUSTODY, HEARING, AND
APPEAL."  THE REGULATION IS THUS DESIGNED TO SPELL OUT FURTHER THE
DETAILS OF PROCEEDINGS REQUIRED TO BE CONDUCTED UNDER SEC. 242 OF THE
STATUTE, AND THIS REGULATION EXPLICITLY AUTHORIZES THE SPECIAL INQUIRY
OFFICER "TO ORDER TEMPORARY WITHHOLDING OF DEPORTATION PURSUANT TO
CONTRAST, THE REGULATIONS RELIED UPON BY THE COURT AS AUTHORIZING A
DISTRICT DIRECTOR TO DECIDE THIS ISSUE, IN PARTICULAR FORMER 8 CFR
253.1(E), APPLY BY THEIR OWN TERMS ONLY TO THE PROCEDURE FOR "PAROLE"
OF AN ALIEN UNDER SEC. 212(D)(5), A REMEDY DISTINCT FROM THE
WITHHOLDING OF DEPORTATION UNDER SEC. 243(H), AND BY THE GOVERNMENT'S
OWN ADMISSION THESE REGULATIONS ARE APPLICABLE ONLY TO "REQUESTS FOR
ASYLUM MADE BY CREWMEN AGAINST WHOM PROCEEDINGS UNDER SECTION 252(B)
HAVE BEEN INSTITUTED."  BRIEF FOR PETITIONER 37.  THUS, THE REGULATIONS
SERVE ONLY TO SPELL OUT THE PROCEDURES TO BE FOLLOWED UNDER BOTH SEC.
242(B) AND SEC. 252(B) AND DO NOT EVEN PURPORT TO SPECIFY WHEN ONE OF
THESE SECTIONS RATHER THAN THE OTHER IS IN FACT APPLICABLE.  THE FACT
THAT THE IMMIGRATION AND NATURALIZATION SERVICE HAS APPLIED THE
REGULATION DIFFERENTLY DOES NOT CHANGE THIS MEANING.  AS THE COURT
CONCEDES, THE REGULATION IS "NOT FREE FROM AMBIGUITY," ANTE, AT 72, AND
OF COURSE THE AMBIGUITY IN THE REGULATION IS PRECISELY THE SAME AS THE
AMBIGUITY IN THE STATUTORY PROVISION FROM WHICH THE WORDING OF THE
REGULATION WAS DRAWN.  IT SEEMS CLEAR THAT THE WAY IN WHICH THE SERVICE
HAS APPLIED THE REGULATION HAS BEEN DETERMINED BY ITS INTERPRETATION OF
THE STATUTE, AN INTERPRETATION THAT IS IN NO WAY BINDING ON US.  BOTH
THE STATUTE AND THE REGULATION ARE AMBIGUOUS, AND THERE IS NO DOUBT IN
MY MIND THAT THIS AMBIGUITY SHOULD BE RESOLVED IN FAVOR OF THE ALIEN
WHO IS SEEKING A FULL AND FAIR HEARING.  WITH ALL DUE RESPECT, I THINK
THE COURT'S INVOLVED ARGUMENT BASED UPON THE REGULATIONS, WHICH GOES
BEYOND ANYTHING SUGGESTED BY THE GOVERNMENT ITSELF IN THIS CASE,
PROVIDES NO BASIS WHATSOEVER FOR AVOIDING THE FUNDAMENTAL QUESTION OF
STATUTORY INTERPRETATION AS TO WHICH OF THE TWO PROCEDURES, SEC. 242(B)
OR SEC. 252(B), WAS REQUIRED TO BE FOLLOWED IN THIS CASE. 

THE GOVERNMENT CONTENDS THAT RESPONDENT, THE ALIEN SEAMAN INVOLVED
HERE, COULD BE PROPERLY DEPORTED UNDER THE SPECIAL SUMMARY PROCEDURES
OF SEC. 252(B) BECAUSE HIS CONDITIONAL LANDING PERMIT WAS REVOKED AND
BECAUSE SEC. 252(B) AUTHORIZES SUMMARY DEPORTATION AFTER THIS PERMIT IS
REVOKED.  RESPONDENT, HOWEVER, ARGUED IN THE COURT OF APPEALS THAT HE
SHOULD HAVE BEEN GIVEN THE BENEFIT OF THE CAREFUL HEARING PROCEDURES
SPELLED OUT BY CONGRESS IN SEC. 242(B) BECAUSE THE SHIP ON WHICH HE
CAME HAD DEPARTED BEFORE THE DECISION OF THE DISTRICT DIRECTOR WAS
MADE, AND THEREFORE THE ONLY JUSTIFICATION FOR THE FAST BUT ORDINARILY
LESS DESIRABLE PROCEDURE OF SEC. 252(B) NO LONGER EXISTED.  THE COURT
OF APPEALS HELD THAT SEC. 252(B) PROCEEDINGS WERE AUTHORIZED ONLY PRIOR
TO THE DEPARTURE OF THE SHIP.  I AGREE WITH THE COURT OF APPEALS.  AS
THAT COURT NOTED IN ITS OPINION: 

     "THE SECTION (252(B) EXCEPTION (TO THE GENERAL PROCEDURAL

  REQUIREMENTS OF SEC. 242(B) IS VERY NARROWLY DRAWN.  IT DOES NOT

APPLY TO THE DEPORTATION OF CREWMEN WHO HAVE 'JUMPED SHIP' AND

  ENTERED THE UNITED STATES ILLEGALLY, WITH NO PERMIT AT ALL.  AS

  NOTED ABOVE, IT DOES NOT APPLY TO CREWMEN ISSUED LANDING PERMITS

  AUTHORIZING THEM TO DEPART ON VESSELS OTHER THAN THOSE ON WHICH

  THEY ARRIVED.  IT DOES NOT APPLY TO CREWMEN WHO HAVE OVERSTAYED

  THE TWENTY-NINE DAY LEAVE PERIOD WITHOUT REVOCATION OF THEIR

  LANDING PERMITS.  IT DOES NOT APPLY TO CREWMEN WHO WERE TO LEAVE

  ON THE VESSEL ON WHICH THEY ARRIVED IF THEIR VESSELS HAVE

  DEPARTED BEFORE THEIR LANDING PERMITS ARE REVOKED.  IN ALL OF THE

SITUATIONS CREWMEN MAY BE DEPORTED ONLY IN ACCORDANCE WITH (SEC.

  242(B) PROCEDURES."  393 F.2D 539, 544. 

AS THE LEGISLATIVE HISTORY OF THE ACT, QUOTED IN THE OPINION OF THE
COURT OF APPEALS, SHOWS, THE SPECIAL TRUNCATED PROCEDURE OF SEC. 252(B)
WAS INTENDED TO BE USED ONLY WHEN THE NEED FOR SPEED WAS TRULY PRESSING
- WHEN THE SHIP WAS ABOUT TO LEAVE PORT.  BUT THE SEAMAN IN THIS CASE
WAS SUBJECTED TO THIS TRUNCATED, SUMMARY PROCEDURE EVEN THOUGH HIS SHIP
HAD ALREADY GONE AND THE NEED FOR HASTE IN COMPLETING THESE IMPORTANT
LEGAL PROCEEDINGS NO LONGER EXISTED.  THERE IS NO REASON TO SUSPECT
THAT CONGRESS WANTED A SEAMAN TO BE DEPRIVED UNDER THESE CIRCUMSTANCES
OF THE VITAL PROCEDURAL SAFEGUARDS SO CAREFULLY SPECIFIED IN SEC.
242(B) OF THE ACT. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  SECTION 242(B) PROVIDES AS FOLLOWS: 

"A SPECIAL INQUIRY OFFICER SHALL CONDUCT PROCEEDINGS UNDER THIS
ADMINISTER OATHS, PRESENT AND RECEIVE EVIDENCE, INTERROGATE, EXAMINE,
AND CROSS-EXAMINE THE ALIEN OR WITNESSES, AND, AS AUTHORIZED BY THE
ATTORNEY GENERAL, SHALL MAKE DETERMINATIONS, INCLUDING ORDERS OF
DEPORTATION.  . . . NO SPECIAL INQUIRY OFFICER SHALL CONDUCT A
PROCEEDING IN ANY CASE UNDER THIS SECTION IN WHICH HE SHALL HAVE
PARTICIPATED IN INVESTIGATIVE FUNCTIONS OR IN WHICH HE SHALL HAVE
PARTICIPATED (EXCEPT AS PROVIDED IN THIS SUBSECTION) IN PROSECUTING
FUNCTIONS.  PROCEEDINGS BEFORE A SPECIAL INQUIRY OFFICER ACTING UNDER
THE PROVISIONS OF THIS SECTION SHALL BE IN ACCORDANCE WITH SUCH
REGULATIONS, NOT INCONSISTENT WITH THIS ACT, AS THE ATTORNEY GENERAL
SHALL PRESCRIBE.  SUCH REGULATIONS SHALL INCLUDE REQUIREMENTS THAT-- 

"(1) THE ALIEN SHALL BE GIVEN NOTICE, REASONABLE UNDER ALL THE
CIRCUMSTANCES, OF THE NATURE OF THE CHARGES AGAINST HIM AND OF THE TIME
AND PLACE AT WHICH THE PROCEEDINGS WILL BE HELD; 

"(2) THE ALIEN SHALL HAVE THE PRIVILEGE OF BEING REPRESENTED (AT NO
EXPENSE TO THE GOVERNMENT) BY SUCH COUNSEL, AUTHORIZED TO PRACTICE IN
SUCH PROCEEDINGS, AS HE SHALL CHOOSE; 

"(3) THE ALIEN SHALL HAVE A REASONABLE OPPORTUNITY TO EXAMINE THE
EVIDENCE AGAINST HIM, TO PRESENT EVIDENCE IN HIS OWN BEHALF, AND TO
CROSS-EXAMINE WITNESSES PRESENTED BY THE GOVERNMENT; AND 

"(4) NO DECISION OF DEPORTABILITY SHALL BE VALID UNLESS IT IS BASED
UPON REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE. 

"THE PROCEDURE SO PRESCRIBED SHALL BE THE SOLE AND EXCLUSIVE
PROCEDURE FOR DETERMINING THE DEPORTABILITY OF AN ALIEN UNDER THIS

/2/  SECTION 252(B) PROVIDES AS FOLLOWS: 

"PURSUANT TO REGULATIONS PRESCRIBED BY THE ATTORNEY GENERAL, ANY
IMMIGRATION OFFICER MAY, IN HIS DISCRETION, IF HE DETERMINES THAT AN
ALIEN IS NOT A BONA FIDE CREWMAN, OR DOES NOT INTEND TO DEPART ON THE
VESSEL OR AIRCRAFT WHICH BROUGHT HIM, REVOKE THE CONDITIONAL PERMIT TO
LAND WHICH WAS GRANTED SUCH CREWMAN UNDER THE PROVISION OF SUBSECTION
(A)(1), TAKE SUCH CREWMAN INTO CUSTODY, AND REQUIRE THE MASTER OR
COMMANDING OFFICER OF THE VESSEL OR AIRCRAFT ON WHICH THE CREWMAN
ARRIVED TO RECEIVE AND DETAIN HIM ON BOARD SUCH VESSEL OR AIRCRAFT, IF
PRACTICABLE, AND SUCH CREWMAN SHALL BE DEPORTED FROM THE UNITED STATES
AT THE EXPENSE OF THE TRANSPORTATION LINE WHICH BROUGHT HIM TO THE
UNITED STATES.  UNTIL SUCH ALIEN IS SO DEPORTED, ANY EXPENSES OF HIS
DETENTION SHALL BE BORNE BY SUCH TRANSPORTATION COMPANY.  NOTHING IN
THIS SECTION SHALL BE CONSTRUED TO REQUIRE THE PROCEDURE PRESCRIBED IN
SUBSECTION."     JOSEPH J. CONNOLLY ARGUED THE CAUSE FOR PETITIONER,
PRO HAC VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL VINSON, AND PHILIP R. MONAHAN. 

B. BERNARD FEDDE, BY APPOINTMENT OF THE COURT, 393 U.S. 1010, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS DOROTHY MCCULLOUGH
LEE. 

EDWARD J. ENNIS AND MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN
CIVIL LIBERTIES UNION AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :














YMCA V. UNITED STATES, 395 U.S. 85 


       NATIONAL BOARD OF YOUNG MEN'S CHRISTIAN ASSNS.  ET AL. V.

           UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

        NO. 517.  ARGUED MARCH 3, 1969.-- DECIDED MAY 19, 1969. 


PETITIONERS SUED THE GOVERNMENT IN THE COURT OF CLAIMS FOR JUST
COMPENSATION UNDER THE FIFTH AMENDMENT FOR RIOT DAMAGE TO THEIR TWO
BUILDINGS, LOCATED IN THE ATLANTIC SECTION OF THE CANAL ZONE AT ITS
BOUNDARY WITH THE REPUBLIC OF PANAMA, AFTER THEY WERE OCCUPIED BY U.S.
ARMY TROOPS DURING THE JANUARY 1964 RIOTS IN PANAMA.  ON THE EVENING OF
JANUARY 9 A MOB ENTERED THE BUILDINGS, LOOTING AND WRECKING THE
INTERIORS, AND STARTING A FIRE IN ONE.  ARMY TROOPS WERE MOVED TO THE
ATLANTIC SECTION TO CLEAR THE ZONE OF RIOTERS AND SEAL THE BORDER. 
TROOPS ENTERED THREE BUILDINGS, INCLUDING PETITIONERS', EJECTED THE
RIOTERS, AND WERE DEPLOYED OUTSIDE THE STRUCTURES.  AFTER CONSIDERABLE
ASSAULT, SNIPER FIRE, AND INJURIES, THE TROOPS WERE MOVED INSIDE THE
BUILDINGS AFTER MIDNIGHT.  THE BUILDINGS WERE UNDER SIEGE DURING THE
NIGHT AND THE NEXT MORNING, AND ONE WAS SET AFIRE.  THE TROOPS WITHDREW
AND THE BUILDINGS WERE SUBJECTED TO HEAVY FIRE-BOMB ATTACK.  OTHER
BUILDINGS IN THE AREA WERE DAMAGED OR DESTROYED.  THE COURT OF CLAIMS
GRANTED THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT, HOLDING THAT THE
TEMPORARY OCCUPANCY OF THE BUILDINGS AND THE DAMAGE INFLICTED BY THE
RIOTERS DURING SUCH OCCUPANCY DID NOT CONSTITUTE A TAKING FOR ARMY USE
UNDER THE FIFTH AMENDMENT.  HELD:  THE FIFTH AMENDMENT DOES NOT REQUIRE
THAT PETITIONERS BE COMPENSATED FOR DAMAGES TO THEIR BUILDINGS
RESULTING FROM MISCONDUCT BY RIOTERS FOLLOWING OCCUPATION OF THE
BUILDINGS BY GOVERNMENT TROOPS.  PP. 89-93. 

(A) WHERE, AS HERE, A PRIVATE PARTY IS THE PARTICULAR INTENDED
BENEFICIARY OF GOVERNMENTAL ACTIVITY, "FAIRNESS AND JUSTICE" DO NOT
REQUIRE THAT LOSSES WHICH MAY RESULT FROM THAT ACTIVITY "BE BORNE BY
THE PUBLIC AS A WHOLE," EVEN THOUGH THE ACTIVITY MAY ALSO BE INTENDED
TO BENEFIT THE PUBLIC.  P. 92. 

(B) THE PHYSICAL OCCUPATION OF THE BUILDINGS BY THE TROOPS DID NOT
DEPRIVE PETITIONERS OF ANY USE OF THE BUILDINGS, AS THE BUILDINGS WERE
ALREADY UNDER SIEGE BY RIOTERS, AND THUS PETITIONERS COULD ONLY CLAIM
COMPENSATION FOR THE INCREASED DAMAGE BY RIOTERS RESULTING FROM THE
PRESENCE OF THE TROOPS.  P. 93. 

(C) WHERE THE ONLY CLAIM IS THAT GOVERNMENTAL ACTION IS CAUSALLY
RELATED TO PRIVATE MISCONDUCT WHICH RESULTS IN PRIVATE PROPERTY DAMAGE,
THE FIFTH AMENDMENT DOES NOT REQUIRE COMPENSATION UNLESS THE
GOVERNMENTAL INVOLVMENT IN THE DEPRIVATION OF PRIVATE PROPERTY IS
DETERMINED TO BE SUFFICIENTLY DIRECT AND SUBSTANTIAL.  P. 93. 

(D) THE TEMPORARY, UNPLANNED OCCUPATION OF PETITIONERS' BUILDINGS IN
THE COURSE OF BATTLE DOES NOT CONSTITUTE DIRECT AND SUBSTANTIAL ENOUGH
INVOLVMENT TO WARRANT COMPENSATION UNDER THE FIFTH AMENDMENT.  P. 93. 

184 CT.CL. 427, 396 F.2D 467, AFFIRMED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS BROUGHT THIS SUIT AGAINST THE UNITED STATES IN THE COURT
OF CLAIMS /1/  SEEKING JUST COMPENSATION UNDER THE FIFTH AMENDMENT FOR
DAMAGES DONE BY RIOTERS TO BUILDINGS OCCUPIED BY UNITED STATES TROOPS
DURING THE RIOTS IN PANAMA IN JANUARY 1964.  THE COURT OF CLAIMS HELD
THAT THE ACTIONS OF THE ARMY DID NOT CONSTITUTE A "TAKING" WITHIN THE
MEANING OF THE FIFTH AMENDMENT AND ENTERED SUMMARY JUDGMENT FOR THE
UNITED STATES.  184 CT.CL. 427, 396 F.2D 467 (1968).  WE GRANTED
CERTIORARI.  393 U.S. 959 (1968).  WE AFFIRM. 

PETITIONERS' BUILDINGS, THE YMCA BUILDING AND THE MASONIC TEMPLE,
ARE SITUATED NEXT TO EACH OTHER ON THE ATLANTIC SIDE OF THE CANAL ZONE
AT ITS BOUNDARY WITH THE REPUBLIC OF PANAMA.  RIOTING BEGAN IN THIS
PART OF THE ZONE AT 8 P.M. ON JANUARY 9, 1964.  BETWEEN 9:15 AND 9:30
P.M., AN UNRULY MOB OF 1,500 PERSONS MARCHED TO THE PANAMA CANAL
ADMINISTRATION BUILDING, AT THE CENTER OF THE ATLANTIC SEGMENT OF THE
ZONE AND THERE RAISED A PANAMANIAN FLAG.  MANY MEMBERS OF THE MOB THEN
PROCEEDED TO PETITIONERS' BUILDINGS-- AND TO THE ADJACENT PANAMA CANAL
COMPANY OFFICE AND STORAGE BUILDING.  THEY ENTERED THESE BUILDINGS,
BEGAN LOOTING AND WRECKING THE INTERIORS, AND STARTED A FIRE IN THE
YMCA BUILDING. 

AT 9:50 P.M., COLONEL SACHSE, THE COMMANDER OF THE 4TH BATTALION,
10TH INFANTRY, OF THE UNITED STATES ARMY, WAS ORDERED TO MOVE HIS
TROOPS TO THE ATLANTIC SEGMENT OF THE ZONE WITH THE MISSION OF CLEARING
THE RIOTERS FROM THE ZONE AND SEALING THE BORDER FROM FURTHER
ENCROACHMENT.  THE TROOPS ENTERED THE THREE BUILDINGS, EJECTED THE
RIOTERS, AND THEN WERE DEPLOYED OUTSIDE OF THE BUILDINGS.  THE MOB
BEGAN TO ASSAULT THE SOLDIERS WITH ROCKS, BRICKS, PLATE GLASS, MOLOTOV
COCKTAILS, AND INTERMITTENT SNIPER FIRE.  THE TROOPS DID NOT RETURN THE
GUNFIRE BUT SOUGHT TO CONTAIN THE MOB WITH TEAR GAS GRENADES.  BY
MIDNIGHT, ONE SOLDIER HAD BEEN KILLED AND SEVERAL HAD BEEN WOUNDED BY
BULLETS; MANY OTHERS HAD BEEN INJURED BY FLYING DEBRIS.  SHORTLY AFTER
MIDNIGHT, COLONEL SACHSE MOVED HIS TROOPS INSIDE THE THREE BUILDINGS SO
THAT THE MEN MIGHT BE BETTER PROTECTED FROM THE SNIPER FIRE. 

THE BUILDINGS REMAINED UNDER SIEGE THROUGHOUT THE NIGHT.  ON THE
MORNING OF JANUARY 10, THE YMCA BUILDING WAS THE SUBJECT OF A
CONCENTRATED BARRAGE OF MOLOTOV COCKTAILS.  THE BUILDING WAS SET AFIRE,
AND IN THE EARLY AFTERNOON THE TROOPS WERE FORCED TO EVACUATE IT AND
TAKE UP POSITIONS IN THE BUILDING'S PARKING LOT WHICH HAD BEEN
SANDBAGGED DURING THE NIGHT.  FOLLOWING THE EVACUATION, THE YMCA
BUILDING CONTINUED TO BE A TARGET FOR MOLOTOV COCKTAILS.  THE TROOPS
ALSO WITHDREW FROM THE MASONIC TEMPLE ON THE AFTERNOON OF JANUARY 10,
EXCEPT THAT A SMALL OBSERVATION POST ON THE TOP FLOOR OF THE BUILDING
WAS MAINTAINED.  THE TEMPLE, LIKE THE YMCA BUILDING, CONTINUED TO BE
UNDER HEAVY ATTACK FOLLOWING WITHDRAWAL OF THE TROOPS, THE GREATEST
DAMAGE BEING SUFFERED ON JANUARY 12 AS A RESULT OF EXTENSIVE FIRE-BOMB
ACTIVITY.  THE THIRD BUILDING UNDER HEAVY ATTACK IN THE AREA-- THE
PANAMA CANAL COMPANY OFFICE AND STORAGE BUILDING-- WAS TOTALLY
DESTROYED ON JANUARY 11 BY A FIRE STARTED BY MOLOTOV COCKTAILS. 

ON JANUARY 13, THE MOB DISPERSED, AND ALL HOSTILE ACTION IN THE AREA
CEASED.  THE AUDITORIUM-GYMNASIUM IN THE YMCA BUILDING HAD BEEN
DESTROYED, AND THE REST OF THE BUILDING WAS BADLY DAMAGED.  THE MASONIC
TEMPLE SUFFERED CONSIDERABLY LESS DAMAGE BECAUSE OF ITS PREDOMINANTLY
CONCRETE AND BRICK CONSTRUCTION.  OTHER BUILDINGS IN THE ATLANTIC
SEQMENT OF THE CANAL ZONE WERE ALSO DAMAGED OR DESTROYED.  THESE
BUILDINGS WERE ALL LOCATED ALONG THE BOUNDARY BETWEEN THE ZONE AND THE
REPUBLIC OF PANAMA, AND NONE, EXCEPT THE OFFICE AND STORAGE BUILDING,
HAD BEEN OCCUPIED BY TROOPS DURING THE RIOT. 

PETITIONERS' SUIT IN THE COURT OF CLAIMS SOUGHT COMPENSATION FOR THE
DAMAGE DONE TO THEIR BUILDINGS BY THE RIOTERS AFTER THE TROOPS HAD
ENTERED THE BUILDINGS.  THE BASIC FACTS WERE STIPULATED, AND ALL
PARTIES MOVED FOR SUMMARY JUDGMENT.  THE COURT FOUND IT "ABUNDANTLY
CLEAR FROM THE RECORD . . . THAT THE MILITARY UNITS DISPATCHED TO THE
ATLANTIC SIDE OF THE ZONE BY GENERAL O'MEARA WERE NOT SENT THERE FOR
THE PURPOSE OR WITH THE INTENTION OF REQUISITIONING OR TAKING
(PETITIONERS') BUILDINGS TO HOUSE SOLDIERS.  BOTH BUILDINGS HAD
PREVIOUSLY BEEN LOOTED AND DAMAGED BY THE RIOTERS.  COLONEL SACHSE'S
MEN WERE ORDERED TO REMOVE THE PANAMANIANS FROM THE BUILDINGS IN ORDER
TO PREVENT FURTHER LOSS OR DESTRUCTION AND THEN TO SEAL OFF THE BORDER
FROM FURTHER INCURSIONS BY THE RIOTERS INTO THE ATLANTIC PORTION OF THE
CANAL ZONE."  184 CT.CL.,AT 438, 396 F.2D, AT 473-474.  ACCORDINGLY,
THE COURT HELD THAT, "THE TEMPORARY OCCUPANCY OF (PETITIONERS')
BUILDINGS AND THE DAMAGE INFLICTED ON THEM BY THE RIOTERS DURING SUCH
OCCUPANCY DID NOT CONSTITUTE A TAKING OF THE BUILDINGS FOR USE BY THE
ARMY WITHIN THE CONTEMPLATION OF THE FIFTH AMENDMENT . . . . "  ID., AT
438, 396 F.2D, AT 473.  THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT
WAS GRANTED, PETITIONERS' MOTION FOR SUMMARY JUDGMENT WAS DENIED, AND
THE CASE WAS DISMISSED. 

AT THE OUTSET, WE NOTE THAT ALTHOUGH PETITIONERS CLAIM COMPENSATION
FOR ALL THE DAMAGE WHICH OCCURRED AFTER THE TROOPS RETREATED INTO THE
BUILDINGS IN THE EARLY HOURS OF JANUARY 10, THERE WAS NO SHOWING THAT
ANY DAMAGE OCCURRED BECAUSE OF THE PRESENCE OF THE TROOPS.  TO THE
CONTRARY, THE RECORD IS CLEAR THAT BUILDINGS WHICH WERE NOT OCCUPIED BY
TROOPS WERE DESTROYED BY RIOTERS, AND THAT PETITIONERS' VERY BUILDINGS
WERE UNDER SEVERE ATTACK BEFORE THE TROOPS EVEN ARRIVED.  INDEED, IF
THE DESTROYED BUILDINGS HAVE ANY COMMON CHARACTERISTIC, IT IS NOT THAT
THEY WERE OCCUPIED BY AMERICAN SOLDIERS, BUT THAT THEY WERE ON THE
BORDER AND THUS READILY SUSCEPTIBLE TO THE ATTACKS OF THE MOBS COMING
FROM THE REPUBLIC OF PANAMA.  WE DO NOT REST OUR DECISION ON THIS
BASIS, HOWEVER, FOR PETITIONERS WOULD NOT HAVE A CLAIM FOR COMPENSATION
UNDER THE FIFTH AMENDMENT EVEN IF THEY COULD SHOW THAT DAMAGE INFLICTED
BY RIOTERS OCCURRED BECAUSE OF THE PRESENCE OF THE TROOPS. 

THE JUST COMPENSATION CLAUSE WAS "DESIGNED TO BAR GOVERNMENT FROM
FORCING SOME PEOPLE ALONE TO BEAR PUBLIC BURDENS WHICH, IN ALL FAIRNESS
AND JUSTICE, SHOULD BE BORNE BY THE PUBLIC AS A WHOLE."  ARMSTRONG V.
UNITED STATES, 364 U.S. 40, 49 (1960); SEE ALSO UNITED STATES V.
SPONENBARGER, 308 U.S. 256, 266 (1939).  /2/  PETITIONERS ARGUE THAT
THE TROOPS ENTERED THEIR BUILDINGS NOT FOR THE PURPOSE OF PROTECTING
THOSE BUILDINGS BUT AS PART OF A GENERAL DEFENSE OF THE ZONE AS A
WHOLE.  THEREFORE, PETITIONERS CONTEND, THEY ALONE SHOULD NOT BE MADE
TO BEAR THE COST OF THE DAMAGE TO THEIR BUILDINGS INFLICTED BY THE
RIOTERS WHILE THE TROOPS WERE INSIDE.  THE STIPULATED RECORD, HOWEVER,
DOES NOT SUPPORT PETITIONERS' FACTUAL PREMISE; RATHER, IT DEMONSTRATES
THAT THE TROOPS WERE ACTING PRIMARILY IN DEFENSE OF PETITIONERS'
BUILDINGS. 

THE MILITARY HAD MADE NO ADVANCE PLANS TO USE PETITIONERS' BUILDINGS
AS FORTRESSES IN CASE OF A RIOT.  NOR WAS THE DEPLOYMENT OF THE TROOPS
IN THE AREA OF PETITIONERS' BUILDINGS STRATEGIC TO A DEFENSE OF THE
ZONE AS A WHOLE.  THE SIMPLE FACT IS THAT THE TROOPS WERE SENT TO THAT
AREA BECAUSE THAT IS WHERE THE RIOTERS WERE.  /3/  AND ONCE THE TROOPS
ARRIVED IN THE AREA, THEIR EVERY ACTION WAS DESIGNED TO PROTECT THE
BUILDINGS UNDER ATTACK.  FIRST, THEY EXPELLED THE RIOTERS FROM
PETITIONERS' BUILDINGS AND THE OFFICE AND STORAGE BUILDING, PUTTING OUT
THE FIRE STARTED BY THE RIOTERS IN THE YMCA BUILDING.  THEN THEY STOOD
GUARD OUTSIDE TO DEFEND THE BUILDINGS FROM RENEWED ATTACK BY THE 2,000
TO 3,000 PANAMANIAN RIOTERS WHO REMAINED IN THE AREA.  IN THIS DEFENSE
OF PETITIONERS' PROPERTY THE TROOPS SUFFERED CONSIDERABLE LOSSES AND
WERE FORCED TO RETREAT INTO THE BUILDINGS. 

IT IS CLEAR THAT THE MISSION OF THE TROOPS FORCED INSIDE THE
BUILDINGS CONTINUED TO BE THE PROTECTION OF THOSE BUILDINGS.  IN A FACT
SHEET, TO WHICH THE PARTIES HAVE STIPULATED, THE GENERAL COUNSEL OF THE
UNITED STATES DEPARTMENT OF THE ARMY STATED THAT: 

"(THE TROOPS HAD OCCUPIED THE BUILDINGS IN THE YMCA-MASONIC TEMPLE
VICINITY UNDER INSTRUCTIONS TO PROTECT THE PROPERTY, (AND) THEIR
ACTIONS, ACCORDING TO ALL STATEMENTS TAKEN, WERE CONSISTENT WITH
INSTRUCTIONS.  A CAPTAIN, IN HIS AFFIDAVIT, STATES THAT HE WAS GIVEN A
MESSAGE BY THE BATTALION COMMANDER TO CONVEY TO THE OFFICER WHO HAD
BEEN PLACED IN CHARGE OF THE MASONIC TEMPLE.  THE ORDER WAS, IN THE
CAPTAIN'S WORDS, '.  . . THAT IF THE RIOTERS ATTEMPTED TO ENTER THE
BUILDING WITH THE INTENT TO DO DAMAGE TO PERSONS OR PROPERTY THAT
APPROPRIATE ACTION . . . COULD BE USED . . . . '  ACCORDING TO THE
CAPTAIN, THE ORDER WENT ON TO STATE, '.  . . THOSE PEOPLE ON THE 1ST
FLOOR COULD ASSUME THAT RIOTERS FORCIBLY ENTERING THE BUILDING HAD THE
INTENT TO DO DAMAGE TO EITHER PROPERTY OR PERSONS.'  THE OFFICER IN
CHARGE RECEIVED THAT ORDER, AND IT WAS PASSED ALONG TO THE MEN.  ONE
SERGEANT'S AFFIDAVIT NAMES THE OFFICER, AND RECOUNTS RECEIVING THE
ORDER FROM HIM.  IN THE SERGEANT'S OWN WORDS, 'THE BUILDING WOULD BE
DEFENDED AT ALL COSTS.' 

"OTHER STATEMENTS BY INDIVIDUAL SOLDIERS DESCRIBE ACTIONS TAKEN

  TO MINIMIZE DAMAGE WHICH THE RIOTERS WERE ATTEMPTING TO CAUSE. 

  SEVERAL SOLDIERS DESCRIBE THROWING AND FIRING RIFLE-LAUNCHED TEAR

  GAS GRENADES AT RIOTERS WHO WERE HURLING MOLOTOV COCKTAILS AT THE

  BUILDINGS.  ANOTHER DESCRIBES USING SIMILAR AGENTS 'TO KEEP THE

  CROWD FROM ENTERING THE YMCA,' WHILE STILL OTHERS DESCRIBE ACTION

  BY THEMSELVES OR OTHER SOLDIERS IN PHYSICALLY ROUTING PANAMANIANS

FROM THE YMCA AFTER THEY HAD COME IN THROUGH THE WINDOWS." 

COLONEL SACHSE, THE COMMANDING OFFICER IN THE ATLANTIC RIOT AREA,
TESTIFIED TO THE SAME EFFECT: 

"THE YMCA BUILDING WAS ON FIRE FROM MOLOTOV COCKTAILS BEING THROWN
FROM THE REPUBLIC OF PANAMA SIDE INTO THE FRONT OF IT.  WE WERE UNABLE
TO PROTECT IT DUE TO THE FACT THAT IT IS SET ON THE BORDER BETWEEN THE
CANAL ZONE AND THE REPUBLIC OF PANAMA.  THEREFORE WE PRACTICALLY LOST
MOST OF THIS BUILDING BY MOLOTOV COCKTAILS." 

THUS, THERE CAN BE NO DOUBT THAT THE UNITED STATES ARMY TROOPS WERE
ATTEMPTING TO DEFEND PETITIONERS' BUILDINGS.  OF COURSE, ANY PROTECTION
OF PRIVATE PROPERTY ALSO SERVES A BROADER PUBLIC PURPOSE.  BUT WHERE,
AS HERE, THE PRIVATE PARTY IS THE PARTICULAR INTENDED BENEFICIARY OF
THE GOVERNMENTAL ACTIVITY, "FAIRNESS AND JUSTICE" DO NOT REQUIRE THAT
LOSSES WHICH MAY RESULT FROM THAT ACTIVITY "BE BORNE BY THE PUBLIC AS A
WHOLE," EVEN THOUGH THE ACTIVITY MAY ALSO BE INTENDED INCIDENTALLY TO
BENEFIT THE PUBLIC.  SEE ARMSTRONG V. UNITED STATES, SUPRA, AT 49;
UNITED STATES V. SPONENBARGER, SUPRA, AT 266.  WERE IT OTHERWISE,
GOVERNMENTAL BODIES WOULD BE LIABLE UNDER THE JUST COMPENSATION CLAUSE
TO PROPERTY OWNERS EVERY TIME POLICEMEN BREAK DOWN THE DOORS OF
BUILDINGS TO FOIL BURGLARS THROUGHT TO BE INSIDE. 

PETITIONERS' CLAIM MUST FAIL FOR YET ANOTHER REASON.  ON ORAL
ARGUMENT, PETITIONERS CONCEDED THAT THEY WOULD HAVE HAD NO CLAIM HAD
THE TROOPS REMAINED OUTSIDE THE BUILDINGS, EVEN IF SUCH PRESENCE WOULD
HAVE INCITED THE RIOTERS TO DO GREATER DAMAGE TO THE BUILDINGS.  WE
AGREE.  BUT WE DO NOT SEE THAT PETITIONERS' LEGAL POSITION IS IMPROVED
BY THE FACT THAT THE TROOPS ACTUALLY DID OCCUPY THE BUILDINGS. 
ORDINARILY, OF COURSE, GOVERNMENTAL OCCUPATION OF PRIVATE PROPERTY
DEPRIVES THE PRIVATE OWNER OF HIS USE OF THE PROPERTY, AND IT IS THIS
DEPRIVATION FOR WHICH THE CONSTITUTION REQUIRES COMPENSATION.  SEE,
E.G., UNITED STATES V. GENERAL MOTORS, 323 U.S. 373, 378 (1945).  THERE
ARE, HOWEVER, UNUSUAL CIRCUMSTANCES IN WHICH GOVERNMENTAL OCCUPATION
DOES NOT DEPRIVE THE PRIVATE OWNER OF ANY USE OF HIS PROPERTY.  FOR
EXAMPLE, THE ENTRY BY FIREMEN UPON BURNING PREMISES CANNOT BE SAID TO
DEPRIVE THE PRIVATE OWNERS OF ANY USE OF THE PREMISES.  IN THE INSTANT
CASE, THE PHYSICAL OCCUPATION BY THE TROOPS DID NOT DEPRIVE PETITIONERS
OF ANY USE OF THEIR BUILDINGS.  AT THE TIME THE TROOPS ENTERED, THE
RIOT WAS ALREADY WELL UNDER WAY, AND PETITIONERS' BUILDINGS WERE
ALREADY UNDER HEAVY ATTACK.  THROUGHOUT THE PERIOD OF OCCUPATION, THE
BUILDINGS COULD NOT HAVE BEEN USED BY PETITIONERS IN ANY WAY.  THUS,
PETITIONERS COULD ONLY CLAIM COMPENSATION FOR THE INCREASED DAMAGE BY
RIOTERS RESULTING FROM THE PRESENCE OF THE TROOPS.  BUT SUCH A CLAIM
WOULD NOT SEEM TO DEPEND ON WHETHER THE TROOPS WERE POSITIONED IN THE
BUILDINGS.  TROOPS STANDING JUST OUTSIDE A BUILDING COULD AS WELL CAUSE
INCREASED DAMAGE BY RIOTERS TO THAT BUILDING AS TROOPS POSITIONED
INSIDE.  IN EITHER CASE-- AND IN ANY CASE WHERE GOVERNMENT ACTION IS
CAUSALLY RELATED TO PRIVATE MISCONDUCT WHICH LEADS TO PROPERTY DAMAGE--
A DETERMINATION MUST BE MADE WHETHER THE GOVERNMENT INVOLVEMENT IN THE
DEPRIVATION OF PRIVATE PROPERTY IS SUFFICIENTLY DIRECT AND SUBSTANTIAL
TO REQUIRE COMPENSATION UNDER THE FIFTH AMENDMENT.  THE CONSTITUTION
DOES NOT REQUIRE COMPENSATION EVERY TIME VIOLENCE AIMED AGAINST
GOVERNMENT OFFICERS DAMAGES PRIVATE PROPERTY.  CERTAINLY, THE JUST
COMPENSATION CLAUSE COULD NOT SUCCESSFULLY BE INVOKED IN A SITUATION
WHERE A ROCK HURLED AT A POLICEMAN WALKING HIS BEAT HAPPENS TO DAMAGE
PRIVATE PROPERTY.  SIMILARLY, IN THE INSTANT CASE, WE CONCLUDE THAT THE
TEMPORARY, UNPLANNED OCCUPATION OF PETITIONERS' BUILDINGS IN THE COURSE
OF BATTLE DOES NOT CONSTITUTE DIRECT AND SUBSTANTIAL ENOUGH GOVERNMENT
INVOLVEMENT TO WARRANT COMPENSATION UNDER THE FIFTH AMENDMENT.  WE HAVE
NO OCCASION TO DECIDE WHETHER COMPENSATION MIGHT BE REQUIRED WHERE THE
GOVERNMENT IN SOME FASHION NOT PRESENT HERE MAKES PRIVATE PROPERTY A
PARTICULAR TARGET FOR DESTRUCTION BY PRIVATE PARTIES.     /1/
JURISDICTION IN THE COURT OF CLAIMS WAS BASED UPON 28 U.S.C. 1491. 

/2/  FOR A GENERAL DISCUSSION OF THE PURPOSES OF THE JUST
COMPENSATION CLAUSE, SEE MICHELMAN, PROPERTY, UTILITY, AND FAIRNESS:
COMMENTS ON THE ETHICAL FOUNDATIONS OF "JUST COMPENSATION" LAW, 80
HARV.L.REV.  1165 (1967); SAX, TAKINGS AND THE POLICE POWER, 74 YALE
L.J. 36 (1964). 

/3/  IT IS SIGNIFICANT THAT AT THE OUTSET OF THE RIOTING COLONEL
SACHSE SENT ONE OF HIS COMPANIES-- "B" COMPANY-- TO AN AREA SEVERAL
BLOCKS AWAY FROM PETITIONERS' BUILDINGS.  IT WAS ONLY BECAUSE "(THE
NUMBER OF RIOTERS IN THE 'B' COMPANY AREA WAS PRACTICALLY NONE" THAT
"B" COMPANY WAS SUBSEQUENTLY SENT TO THE AREA NEAR PETITIONERS'
BUILDINGS. 

MR. JUSTICE STEWART, CONCURRING. 

IF UNITED STATES MILITARY FORCES SHOULD USE A BUILDING FOR THEIR OWN
PURPOSES-- AS A DEFENSE BASTION OR COMMAND POST, FOR EXAMPLE-- IT SEEMS
TO ME THIS WOULD BE A FIFTH AMENDMENT TAKING, EVEN THOUGH THE OWNER
HIMSELF WERE NOT ACTUALLY DEPRIVED OF ANY PERSONAL USE OF THE
BUILDING.  SINCE I DO NOT UNDERSTAND THE COURT TO HOLD OTHERWISE, I
JOIN ITS JUDGMENT AND OPINION. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

AT THE TIME THE MILITARY RETREATED INTO THE YMCA AND THE MASONIC
TEMPLE, THREE ALTERNATIVE COURSES OF ACTION WERE OPEN TO THE ARMY
COMMANDER.  FIRST, THE TROOPS COULD HAVE CONTINUED THEIR PRIOR STRATEGY
AND STOOD THEIR GROUND IN FRONT OF THE BUILDINGS WITHOUT RETURNING THE
RIOTERS' HOSTILE SNIPER FIRE; SECOND, THE TROOPS COULD HAVE STOOD THEIR
GROUND AND ATTEMPTED TO REPEL THE MOB BY THE USE OF DEADLY FORCE;
THIRD, THE TROOPS COULD HAVE RETREATED FROM THE ENTIRE AREA, LEAVING
THE MOB TEMPORARILY IN CONTROL.  THE PETITIONERS ARGUE THAT IF THE
TROOPS HAD ADOPTED EITHER OF THE FIRST TWO OF THESE ALTERNATIVE
STRATEGIES, THEIR BUILDINGS WOULD NOT HAVE SUFFERED THE DAMAGE WHICH
RESULTED FROM THE MILITARY'S OCCUPATION. 

BUT WHAT IF THE MILITARY HAD ADOPTED THE THIRD STRATEGY OPEN TO IT?
IF THE ARMY HAD COMPLETELY ABANDONED THE AREA TO THE RIOTERS, AND
REGROUPED FOR A LATER COUNTERATTACK, THERE CAN BE LITTLE DOUBT ON THIS
RECORD THAT THE RIOTERS WOULD HAVE SUBJECTED THE BUILDINGS TO GREATER
DAMAGE THAN THAT WHICH WAS IN FACT SUFFERED.  I BELIEVE THIS FACT TO BE
DECISIVE.  FOR IT APPEARS TO ME THAT, IN RIOT CONTROL SITUATIONS, THE
JUST COMPENSATION CLAUSE MAY ONLY BE PROPERLY INVOKED WHEN THE MILITARY
HAD REASON TO BELIEVE THAT ITS ACTION PLACED THE PROPERTY IN QUESTION
IN GREATER PERIL THAN IF NO FORM OF PROTECTION HAD BEEN PROVIDED AT
ALL. 

        I. 

I START FROM THE PREMISE THAT, GENERALLY SPEAKING, THE GOVERNMENT'S
COMPLETE FAILURE TO PROVIDE POLICE PROTECTION TO A PARTICULAR PROPERTY
OWNER ON A SINGLE OCCASION DOES NOT AMOUNT TO A "TAKING" WITHIN THE
MEANING OF THE FIFTH AMENDMENT.  EVERY MAN WHO IS ROBBED ON THE STREET
CANNOT DEMAND THAT THE FIFTH AMENDMENT REQUIRES FULLY EFFECTIVE POLICE
PROTECTION AT ALL TIMES.  THE PETITIONERS DO NOT, OF COURSE, ARGUE
OTHERWISE.  YET SURELY THE GOVERNMENT MAY NOT BE REQUIRED TO GUARANTEE
FULLY EFFECTIVE PROTECTION DURING SERIOUS CIVIL DISTURBANCES WHEN IT IS
APPARENT THAT THE POLICE AND THE MILITARY ARE UNABLE TO DEFEND ALL THE
PROPERTY WHICH IS THREATENED BY THE MOB.  IF THE OWNERS OF UNPROTECTED
PROPERTY REMAIN UNCOMPENSATED, HOWEVER, THERE SEEMS LITTLE JUSTICE IN
COMPENSATING PETITIONERS, WHO MERELY CONTEND THAT THE MILITARY
OCCUPATION OF THEIR BUILDINGS PROVIDED THEM WITH INADEQUATE
PROTECTION. 

PETITIONERS' CLAIM THAT THEY MAY RECOVER ON A BARE SHOWING THAT THEY
WERE AFFORDED "INADEQUATE" PROTECTION HAS AN ADDITIONAL DEFECT WHICH
SHOULD BE NOTED.  IF COURTS WERE REQUIRED TO CONSIDER WHETHER THE
MILITARY OR POLICE PROTECTION AFFORDED A PARTICULAR PROPERTY OWNER WAS
"ADEQUATE," THEY WOULD BE REQUIRED TO MAKE JUDGMENTS WHICH ARE BEST
LEFT TO OFFICIALS DIRECTLY RESPONSIBLE TO THE ELECTORATE.  IN THE
PRESENT CASE, FOR EXAMPLE, PETITIONERS COULD ARGUE THAT IT WAS POSSIBLE
FOR THE TROOPS TO MAINTAIN THEIR POSITION IN FRONT OF THE BUILDINGS IF
THEY HAD BEEN WILLING TO KILL A LARGE NUMBER OF RIOTERS.  IN REBUTTAL,
THE GOVERNMENT COULD PERSUASIVELY ARGUE THAT THE INDISCRIMINATE USE OF
DEADLY FORCE WOULD HAVE ENRAGED THE MOB STILL FURTHER AND WOULD HAVE
INCREASED THE LIKELIHOOD OF FUTURE DISTURBANCES.  WHICH STRATEGY IS A
COURT TO ACCEPT?  CLEARLY, IT IS FAR SOUNDER TO DEFER TO THE OTHER DULY
CONSTITUTED BRANCHES OF GOVERNMENT IN THIS REGARD. 

IT IS, THEN, BOTH UNFAIR AND UNWISE TO FAVOR THOSE WHO HAVE OBTAINED
SOME FORM OF POLICE PROTECTION OVER THOSE WHO HAVE RECEIVED NONE AT
ALL.  IT IS ONLY IF THE MILITARY OR OTHER PROTECTIVE ACTION FORESEEABLY
INCREASED THE RISK OF DAMAGE THAT COMPENSATION SHOULD BE REQUIRED. 
SINCE, IN THE PRESENT CASE, THE MILITARY REASONABLY BELIEVED THAT
PETITIONERS' PROPERTY WAS BETTER PROTECTED IF THE TROOPS RETREATED INTO
THE BUILDINGS, RATHER THAN FROM THE ENTIRE AREA, THE PROPERTY OWNERS
HAVE NO CLAIM TO COMPENSATION ON THE GROUND THAT THE PROTECTION
AFFORDED TO THEM WAS "INADEQUATE." 

I MUST EMPHASIZE, HOWEVER, THAT THE TEST I HAVE ADVANCED SHOULD BE
APPLIED ONLY TO GOVERNMENT ACTIONS TAKEN IN AN EFFORT TO CONTROL A
RIOT.  THE ARMY COULD NOT, FOR EXAMPLE, APPROPRIATE THE YMCA TODAY AND
CLAIM THAT NO PAYMENT WAS DUE BECAUSE THE BUILDING WOULD HAVE BEEN
COMPLETELY DEMOLISHED IF THE MILITARY HAD NOT INTERVENED DURING THE
RIOT.  ONCE TRANQUILITY HAS BEEN RESTORED, PROPERTY OWNERS MAY
LEGITIMATELY EXPECT THAT THE GOVERNMENT WILL NOT DEPRIVE THEM OF THE
PROPERTY SAVED FROM THE MOB.  BUT WHILE THE RIOTERS ARE SURGING THROUGH
THE STREETS OUT OF CONTROL, EVERYONE MUST RECOGNIZE THAT THE GOVERNMENT
CANNOT PROTECT ALL PROPERTY ALL OF THE TIME.  I THINK IT APPROPRIATE TO
SAY, HOWEVER, THAT OUR DECISION TODAY DOES NOT IN ANY WAY SUGGEST THAT
THE VICTIMS OF CIVIL DISTURBANCES ARE UNDESERVING OF RELIEF.  BUT IT IS
FOR THE CONGRESS, NOT THIS COURT, TO DECIDE THE EXTENT TO WHICH THOSE
INJURED IN THE RIOT SHOULD BE COMPENSATED, REGARDLESS OF THE EXTENT TO
WHICH THE POLICE OR MILITARY ATTEMPTED TO PROTECT THE PARTICULAR
PROPERTY WHICH EACH INDIVIDUAL OWNS. 

        II. 

WHILE I AGREE WITH THE COURT THAT NO COMPENSATION IS
CONSTITUTIONALLY AVAILABLE UNDER THE FACTS OF THIS CASE, I HAVE THOUGHT
IT APPROPRIATE TO STATE MY OWN VIEWS ON THIS MATTER SINCE THE PRECISE
MEANING OF THE RULES THE MAJORITY ANNOUNCES REMAINS OBSCURE AT CERTAIN
CRITICAL POINTS.  MOREOVER, IN DECIDING THIS PARTICULAR CASE WE SHOULD
SPARE NO EFFORT TO SEARCH FOR PRINCIPLES THAT SEEM BEST CALCULATED TO
FIT OTHERS THAT MAY ARISE BEFORE AMERICAN DEMOCRACY ONCE AGAIN REGAINS
ITS EQUILIBRIUM. 

THE COURT SETS OUT TWO TESTS TO GOVERN THE APPLICATION OF THE JUST
COMPENSATION CLAUSE IN RIOT SITUATIONS.  IT FIRST DENIES PETITIONERS
RECOVERY ON THE GROUND THAT EACH WAS THE "PARTICULAR INTENDED
BENEFICIARY" OF THE GOVERNMENT'S MILITARY OPERATIONS.  ANTE, AT 92.  I
DO NOT DISAGREE WITH THIS FORMULA IF IT MEANS THAT THE FIFTH AMENDMENT
DOES NOT APPLY WHENEVER THE POLICING POWER REASONABLY BELIEVES THAT ITS
ACTIONS WILL NOT INCREASE THE RISK OF RIOT DAMAGE BEYOND THAT BORNE BY
THE OWNERS OF UNPROTECTED BUILDINGS.  BUT THE LANGUAGE THE COURT HAS
CHOSEN LEAVES A GOOD DEAL OF AMBIGUITY AS TO ITS SCOPE.  IF, FOR
EXAMPLE, THE MILITARY DELIBERATELY DESTROYED A BUILDING SO AS TO
PREVENT RIOTERS FROM LOOTING ITS CONTENTS AND BURNING IT TO THE GROUND,
IT WOULD BE DIFFICULT INDEED TO CALL THE BUILDING'S OWNER THE
"PARTICULAR INTENDED BENEFICIARY" OF THE GOVERNMENT'S ACTION. 
NEVERTHELESS, IF THE MILITARY REASONABLY BELIEVED THAT THE RIOTERS
WOULD HAVE BURNED THE BUILDING ANYWAY, RECOVERY SHOULD BE DENIED FOR
THE SAME REASONS IT IS PROPERLY DENIED IN THE CASE BEFORE US.  CF.
UNITED STATES V. CALTEX, INC., 344 U.S. 149 (1952). 

MOREOVER, THE COURT'S FORMULA MIGHT BE TAKEN TO INDICATE THAT IF THE
MILITARY'S SUBJECTIVE INTENTION WAS TO PROTECT THE BUILDING, THE COURTS
NEED NOT CONSIDER WHETHER THIS SUBJECTIVE BELIEF WAS A REASONABLE ONE. 
WHILE THE WIDEST LEEWAY MUST, OF COURSE, BE GIVEN TO GOOD-FAITH
MILITARY JUDGMENT, I AM NOT PREPARED TO SUBSCRIBE TO JUDICIAL
ABNEGATION TO THIS EXTENT.  IF A COURT CONCLUDES, UPON CONVINCING
EVIDENCE, THAT THE MILITARY HAD GOOD REASON TO KNOW THAT ITS ACTIONS
WOULD SIGNIFICANTLY INCREASE THE RISK OF RIOT DAMAGE TO A PARTICULAR
PROPERTY, COMPENSATION SHOULD BE AWARDED REGARDLESS OF GOVERNMENTAL
GOOD FAITH. 

WHILE I ACCEPT THE COURT'S "INTENDED BENEFICIARY" TEST WITH THESE
CAVEATS, I CANNOT SUBSCRIBE TO THE SECOND GROUND THE MAJORITY ADVANCES
TO DENY RECOVERY IN THE PRESENT CASE.  THE MAJORITY ANALOGIZES THIS
CASE TO ONE IN WHICH THE MILITARY SIMPLY POSTED A GUARD IN FRONT OF
PETITIONERS' PROPERTIES.  IT IS SAID THAT IF THE RIOTERS HAD DAMAGED
THE BUILDINGS AS A PART OF THEIR ATTACK ON THE TROOPS STANDING IN FRONT
OF THEM, THE PROPERTY DAMAGE CAUSED WOULD BE TOO "INDIRECT" A
CONSEQUENCE OF THE MILITARY'S ACTION TO WARRANT AWARDING FIFTH
AMENDMENT COMPENSATION.  IT FOLLOWS, SAYS THE COURT, THAT EVEN IF THE
MILITARY'S OCCUPATION OF THE BUILDINGS INCREASED THE RISK OF HARM FAR
BEYOND ANY ALTERNATIVE MILITARY STRATEGY, THE ARMY'S ACTION IS
NEVERTHELESS TOO "INDIRECT" A CAUSE OF THE RESULTING DAMAGE. 

THIS ARGUMENT, HOWEVER, IGNORES A SALIENT DIFFERENCE BETWEEN THE
CASE THE COURT HYPOTHESIZES AND THE ONE WHICH WE CONFRONT.  IF THE
TROOPS HAD REMAINED ON THE STREET, THEY WOULD NOT HAVE OBTAINED ANY
SPECIAL BENEFIT FROM THE USE OF PETITIONERS' BUILDINGS.  IN CONTRAST,
THE MILITARY DID IN THIS INSTANCE RECEIVE A BENEFIT NOT ENJOYED BY
MEMBERS OF THE GENERAL PUBLIC WHEN THE TROOPS WERE ORDERED TO OCCUPY
THE YMCA AND THE MASONIC TEMPLE.  AS THE COURT'S STATEMENT OF THE FACTS
MAKES CLEAR, THE TROOPS RETREATED INTO THE BUILDINGS TO PROTECT
THEMSELVES FROM SNIPER FIRE.  ORDINARILY, THE GOVERNMENT PAYS FOR
PRIVATE PROPERTY USED TO SHELTER ITS OFFICIALS, AND I WOULD SEE NO
REASON TO MAKE AN EXCEPTION HERE IF THE MILITARY HAD REASON TO KNOW
THAT THE BUILDINGS WOULD HAVE BEEN EXPOSED TO A LESSER RISK OF HARM IF
THEY HAD BEEN LEFT ENTIRELY UNPROTECTED. 

ON THE PREMISES SET FORTH IN THIS OPINION, I CONCUR IN THE JUDGMENT
OF THE COURT. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE COURT SAYS THAT:  "SHORTLY AFTER MIDNIGHT, COLONEL SACHSE MOVED
HIS TROOPS INSIDE THE THREE BUILDINGS (WHICH INCLUDED THE TWO BUILDINGS
FOR WHICH COMPENSATION IS HERE SOUGHT) SO THAT THE MEN MIGHT BE BETTER
PROTECTED FROM THE SNIPER FIRE."  ANTE, AT 87.  THE ARMY SELECTED THOSE
TWO BUILDINGS TO PROTECT ITSELF WHILE CARRYING OUT ITS MISSION OF
SAFEGUARDING THE ENTIRE ZONE FROM THE RIOTERS.  THUS, THE ARMY MADE THE
TWO BUILDINGS THE PARTICULAR TARGETS OF THE RIOTERS AND THE BUILDINGS
SUFFERED HEAVY DAMAGE.  THE ARMY'S ACTION WAS TAKEN NOT TO SAVE THE
BUILDINGS BUT TO USE THEM AS A SHELTER AND FORTRESS FROM WHICH, AS THE
COURT OF CLAIMS FOUND, "TO SEAL OFF THE BORDER FROM FURTHER INCURSIONS
BY THE RIOTERS INTO THE ATLANTIC PORTION OF THE CANAL ZONE."  184
CT.CL. 427, 438, 396 F.2D 467, 474 (1968).  AT THAT TIME, I THINK IT
CAN HARDLY BE SAID THAT THESE PRIVATE BUILDINGS WERE TAKEN FOR THE GOOD
OF THE OWNERS.  INSTEAD, THE TAKING BY THE ARMY WAS FOR THE BENEFIT OF
THE PUBLIC GENERALLY.  I STILL FEEL THAT "THE GUIDING PRINCIPLE SHOULD
BE THIS:  WHENEVER THE GOVERNMENT DETERMINES THAT ONE PERSON'S PROPERTY
- WHATEVER IT MAY BE-- IS ESSENTIAL TO THE WAR EFFORT AND APPROPRIATES
IT FOR THE COMMON GOOD, THE PUBLIC PURSE, RATHER THAN THE INDIVIDUAL,
SHOULD BEAR THE LOSS."  UNITED STATES V. CALTEX, INC., 344 U.S. 149,
156 (1952) (DISSENTING OPINION OF MR. JUSTICE DOUGLAS). 

RONALD A. JACKS ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE HARDING A. ORREN AND SHERMAN L. COHN. 

PETER L. STRAUSS ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY
GENERAL TAYLOR, ROGER P. MARQUIS, AND S. BILLINGSLEY HILL. 
..END :





















ZENITH CORP. V. HAZELTINE, 395 U.S. 100 


       ZENITH RADIO CORP. V. HAZELTINE RESEARCH, INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT. 

        NO. 49.  ARGUED JANUARY 22, 1969.-- DECIDED MAY 19, 1969. 


UPON THE EXPIRATION IN 1959 OF PETITIONER, ZENITH'S LICENSE AGREEMENT
WITH HAZELTINE RESEARCH, INC. (HRI), WHICH PERMITTED ZENITH TO USE ALL
OF HRI'S DOMESTIC RADIO AND TELEVISION PATENTS UNDER HRI'S SO-CALLED
STANDARD PACKAGE LICENSE, ZENITH REFUSED TO RENEW, ASSERTING THAT IT NO
LONGER REQUIRED A LICENSE.  HRI BROUGHT A PATENT INFRINGEMENT SUIT IN
NOVEMBER 1959.  ZENITH'S ANSWER ALLEGED INVALIDITY OF THE PATENT,
NONINFRINGEMENT, PATENT MISUSE BY HRI, AND HRI'S UNCLEAN HANDS THROUGH
CONSPIRACY WITH FOREIGN PATENT POOLS.  IN MAY 1963 ZENITH
COUNTERCLAIMED AGAINST HRI FOR TREBLE DAMAGES AND INJUNCTIVE RELIEF,
ALLEGING SHERMAN ACT VIOLATIONS BY MISUSE OF HRI PATENTS, INCLUDING THE
ONE IN SUIT, AS WELL AS BY CONSPIRACY AMONG HRI, ITS PARENT HAZELTINE
CORP. (HAZELTINE), AND PATENT POOLS IN CANADA, ENGLAND, AND AUSTRALIA. 
ZENITH CONTENDED THAT THE PATENT POOLS REFUSED TO LICENSE THE FOREIGN
PATENTS, INCLUDING HAZELTINE'S, PLACED WITHIN THEIR EXCLUSIVE LICENSING
AUTHORITY, TO ZENITH AND OTHERS SEEKING TO EXPORT AMERICAN-MADE RADIOS
AND TELEVISION SETS INTO THOSE FOREIGN MARKETS.  HRI AND ZENITH HAD
STIPULATED BEFORE TRIAL THAT HRI AND HAZELTINE WERE TO BE CONSIDERED AS
ONE ENTITY FOR PURPOSES OF THE LITIGATION.  HAZELTINE WAS NOT SERVED
WITH THE COUNTERCLAIM OR NAMED AS A PARTY, AND MADE NO APPEARANCE UNTIL
ZENITH PROPOSED THAT JUDGMENT BE ENTERED AGAINST IT, AT WHICH TIME
HAZELTINE FILED A "SPECIAL APPEARANCE."  THE DISTRICT COURT, SITTING
WITHOUT A JURY, RULED FOR ZENITH ON THE INFRINGEMENT ACTION, AND ON THE
COUNTERCLAIM HELD THAT (1) HRI HAD MISUSED ITS DOMESTIC PATENTS BY
ATTEMPTING TO COERCE ZENITH'S ACCEPTANCE OF A FIVE-YEAR PACKAGE LICENSE
AND BY INSISTING ON EXTRACTING ROYALTIES FROM UNPATENTED PRODUCTS, AND
(2) HRI AND HAZELTINE CONSPIRED WITH FOREIGN PATENT POOLS TO EXCLUDE
ZENITH FROM THE CANADIAN, ENGLISH AND AUSTRALIAN MARKETS.  WITH RESPECT
TO PATENT MISUSE, JUDGMENT WAS ENTERED FOR ZENITH FOR TREBLE THE ACTUAL
DAMAGES OF APPROXIMATELY $50,000, AND INJUNCTIVE RELIEF GIVEN AGAINST
FURTHER MISUSE.  TREBLE DAMAGES FOR ALMOST $35,000,000 WERE AWARDED
ZENITH ON THE CONSPIRACY CLAIM, TOGETHER WITH INJUNCTIVE RELIEF AGAINST
FURTHER PARTICIPATION IN ANY ARRANGEMENT TO PREVENT ZENITH FROM
EXPORTING ELECTRONIC EQUIPMENT INTO AMY FOREIGN MARKET.  RELYING ON THE
"ONE ENTITY" STIPULATION, THE COURT ENTERED THE JUDGMENTS FOR TREBLE
DAMAGES AND INJUNCTIVE RELIEF AGAINST HAZELTINE AS WELL AS HRI.  THE
COURT OF APPEALS SET ASIDE THE JUDGMENTS AGAINST HAZELTINE, RULING THAT
THE LOWER COURT LACKED JURISDICTION OVER THAT COMPANY AND THAT THE
STIPULATION WAS AN INSUFFICIENT BASIS FOR ENTERING JUDGMENT AGAINST
HAZELTINE.  ON THE PATENT MISUSE CLAIM, THE TREBLE-DAMAGE AWARD AGAINST
HRI WAS AFFIRMED, BUT THE INJUNCTION AGAINST FURTHER MISUSE WAS
MODIFIED.  THE CONSPIRACY TREBLE-DAMAGE AWARD WAS REVERSED, THE COURT
OF APPEALS HOLDING THAT ZENITH HAD FAILED TO PROVE IT HAD IN FACT BEEN
INJURED DURING THE RELEVANT FOUR-YEAR PERIOD PRECEDING THE FILING OF
ITS COUNTERCLAIM.  THAT COURT ALSO STRUCK DOWN THE INJUNCTION AGAINST
HRI'S PARTICIPATION IN CONSPIRACIES RESTRICTING ZENITH'S FOREIGN
TRADE.  HELD: 

1.  ONE IS NOT BOUND BY A JUDGMENT IN PERSONAM RESULTING FROM
LITIGATION IN WHICH HE IS NOT DESIGNATED AS A PARTY OR TO WHICH HE HAS
NOT BEEN MADE A PARTY BY SERVICE OF PROCESS.  PP. 108-112. 

(A) THE JUDGMENTS AGAINST HAZELTINE WERE PROPERLY VACATED AS
HAZELTINE WAS NOT NAMED AS A PARTY OR SERVED, AND DID NOT FORMALLY
APPEAR AT THE TRIAL; AND THE STIPULATION EXECUTED BY HRI WAS NOT AN
ADEQUATE SUBSTITUTE FOR THE NORMAL MEANS OF OBTAINING JURISDICTION OVER
HAZELTINE.  P. 110. 

(B) IT WAS ERROR TO ENTER AN INJUNCTION AGAINST HAZELTINE WITHOUT
DETERMINING THAT IT WAS "IN ACTIVE CONCERT OR PARTICIPATION" WITH HRI
IN A PROCEEDING IN WHICH HAZELTINE WAS A PARTY.  P. 112. 

2.  THE COURT OF APPEALS ERRED IN SETTING ASIDE THE DISTRICT COURT'S
DECISION WITH RESPECT TO THE FACT OF DAMAGE IN CANADA.  PP. 114-125. 

(A) THE EVIDENCE WAS SUFFICIENT TO SUSTAIN A FINDING THAT THE
CANADIAN PATENT POOL REFUSED TO LICENSE IMPORTED GOODS, THUS EXCLUDING
FOREIGN MANUFACTURERS LIKE ZENITH FROM THE CANADIAN MARKET FOR RADIO
AND TELEVISION PRODUCTS.  P. 118. 

(B) THE EVIDENCE CLEARLY WARRANTS THE INFERENCE THAT THE CANADIAN
PATENT POOL'S PAST CONDUCT INTERFERED WITH AND MADE MORE DIFFICULT THE
DISTRIBUTION OF ZENITH PRODUCTS IN THE RELEVANT 1959-1963 PERIOD; AND
IT COULD RATIONALLY BE FOUND THAT ZENITH SUFFERED DAMAGE DURING THE
PERTINENT PERIOD FROM HAVING A SMALLER SHARE OF THE MARKET THAN IT
WOULD HAVE HAD IF THE POOL HAD NEVER EXISTED.  PP. 118-119. 

(C) THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING OF DAMAGE
RESULTING FROM EVENTS OCCURRING AFTER THE DAMAGE PERIOD BEGAN.  PP. 119
123. 

(D) IN APPLYING THE CLEARLY ERRONEOUS STANDARD OF FED. RULE CIV.
PROC. 52(A) TO THE FINDINGS OF A DISTRICT COURT SITTING WITHOUT A JURY,
THE APPELLATE COURT MUST DETERMINE WHETHER "ON THE ENTIRE EVIDENCE (IT)
IS LEFT WITH THE DEFINITE AND FIRM CONVICTION THAT A MISTAKE HAS BEEN
COMMITTED," AND NOT WHETHER IT WOULD HAVE MADE THE SAME FINDINGS THE
TRIAL COURT DID.  PP. 123. 

(E) WHERE A TREBLE-DAMAGE PLAINTIFF SEEKS RECOVERY FOR INJURIES FROM
A TOTAL OR PARTIAL MARKET EXCLUSION, A COURT MAY "CONCLUDE AS A MATTER
OF JUST AND REASONABLE INFERENCE FROM THE PROOF OF DEFENDANTS'
WRONGFUL ACTS AND THEIR TENDENCY TO INJURE PLAINTIFFS' BUSINESS, AND
FROM THE EVIDENCE OF THE DECLINE IN PRICES, PROFITS AND VALUES, NOT
SHOWN TO BE ATTRIBUTABLE TO OTHER CAUSES, THAT DEFENDANTS' WRONGFUL
ACTS HAD CAUSED DAMAGE TO THE PLAINTIFFS."  BIGELOW V. RKO RADIO
PICTURES, INC., 327 U.S. 251, 264.  PP. 123-124. 

(F) THE TRIAL COURT WAS ENTITLED TO INFER FROM THE CIRCUMSTANTIAL
EVIDENCE THAT THE NECESSARY CAUSAL RELATION BETWEEN THE CANADIAN PATENT
POOL'S CONDUCT AND THE CLAIMED DAMAGE EXISTED.  PP. 124-125. 

3.  THE COURT OF APPEALS PROPERLY SET ASIDE THE DISTRICT COURT'S
JUDGMENT WITH RESPECT TO INJURY TO ZENITH BY THE ENGLISH PATENT POOL,
AS THE ONLY PERMISSIBLE INFERENCE FROM THE RECORD IS THAT ZENITH DID
NOT ENTER THE ENGLISH TELEVISION MARKET BECAUSE IT WAS AWAITING A
CHANGE IN THE ENGLISH LINE-SCANNING SIGNAL AND NOT BECAUSE OF THE
ACTIVITIES OF THE PATENT POOL.  PP. 125-128. 

4.  THE COURT OF APPEALS CORRECTLY REVERSED THE LOWER COURT'S
DAMAGES AWARD WITH RESPECT TO THE AUSTRALIAN MARKET AS NOTHING IN THE
RECORD PERMITS THE INFERENCE THAT ZENITH EITHER INTENDED OR WAS
PREPARED TO ENTER THE AUSTRALIAN MARKET DURING THE RELEVANT PERIOD. 
PP. 128-129. 

5.  INJUNCTIVE RELIEF UNDER SEC. 16 OF THE CLAYTON ACT IS AVAILABLE
EVEN THOUGH THE PLAINTIFF HAS NOT SUFFERED ACTUAL INJURY AS LONG AS HE
DEMONSTRATES A SIGNIFICANT THREAT OF INJURY FROM AN IMPENDING ANTITRUST
VIOLATION OR FROM A CONTEMPORARY VIOLATION LIKELY TO CONTINUE OR
RECUR.  PP. 129-133. 

(A) INJUNCTIVE RELIEF AGAINST HRI WITH RESPECT TO THE CANADIAN
MARKET WAS WHOLLY PROPER, AS THE TRIAL COURT FOUND THAT HRI AND THE
CANADIAN PATENT POOL WERE CONSPIRING TO EXCLUDE ZENITH AND OTHERS FROM
THE CANADIAN MARKET, AND THERE WAS NOTHING TO INDICATE THAT THIS CLEAR
VIOLATION OF THE ANTITRUST LAWS HAD TERMINATED OR THAT THE THREAT TO
ZENITH WOULD CEASE IN THE FORESEEABLE FUTURE.  PP. 131-132. 

(B) THE INJUNCTION WHICH BARRED HRI FROM CONSPIRING WITH OTHERS TO
RESTRICT OR PREVENT ZENITH FROM ENTERING ANY OTHER FOREIGN MARKETS IS
ALSO REINSTATED, IN LIGHT OF HRI'S ANTITRUST VIOLATION BY ITS
CONSPIRING WITH THE CANADIAN POOL, ITS PARTICIPATION IN SIMILAR POOLS
IN ENGLAND AND AUSTRALIA, AND ZENITH'S INTEREST IN EXPANDING ITS
FOREIGN MARKETS.  PP. 132-133. 

6.  CONDITIONING THE GRANT OF A PATENT LICENSE UPON PAYMENT OF
ROYALTIES ON PRODUCTS WHICH DO NOT USE THE TEACHING OF THE PATENT
AMOUNTS TO PATENT MISUSE.  PP. 133-140. 

(A) IF CONVENIENCE OF THE PARTIES RATHER THAN PATENT POWER DICTATES
A PERCENTAGE-OF-TOTAL-SALES ROYALTY PROVISION THERE IS NO MISUSE OF THE
PATENTS.  AUTOMATIC RADIO MFG. CO. V. HAZELTINE RESEARCH, INC., 339
U.S. 827.  PP. 137-138. 

(B) A LICENSEE, WHO OBTAINS THE PRIVILEGE OF USING THE PATENT AND
INSURANCE AGAINST INFRINGEMENT SUITS, MUST ANTICIPATE SOME MINIMUM
CHARGE FOR THE LICENSE, ENOUGH TO INSURE THE PATENTEE AGAINST LOSS IN
NEGOTIATING AND ADMINISTERING HIS MONOPOLY, EVEN IF IN FACT THE PATENT
IS NOT USED AT ALL, BUT THE PATENTEE'S STATUTORY MONOPOLY CANNOT BE
USED TO COERCE AN AGREEMENT TO PAY A PERCENTAGE ROYALTY ON GOODS NOT
USING THE PATENT.  PP. 139-140. 

7.  THE MATTER IS REMANDED TO THE COURT OF APPEALS FOR IT TO
CONSIDER WHETHER THE TRIAL COURT CORRECTLY DETERMINED THAT HRI
CONDITIONED THE GRANT OF LICENSES UPON THE PAYMENT OF ROYALTIES ON
UNPATENTED PRODUCTS, AND, IF SO, WHETHER SUCH MISUSE EMBODIES THE
INGREDIENTS OF A VIOLATION OF EITHER SEC. 1 OR SEC. 2 OF THE SHERMAN
ACT, OR WHETHER ZENITH WAS THREATENED BY A VIOLATION SO AS TO ENTITLE
IT TO AN INJUNCTION UNDER SEC. 16 OF THE CLAYTON ACT.  PP. 140-141. 

388 F.2D 25, AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONER ZENITH RADIO CORPORATION (ZENITH) IS A DELAWARE
CORPORATION WHICH FOR MANY YEARS HAS BEEN SUCCESSFULLY ENGAGED IN THE
BUSINESS OF MANUFACTURING RADIO AND TELEVISION SETS FOR SALE IN THE
UNITED STATES AND FOREIGN COUNTRIES.  A NECESSARY INCIDENT OF ZENITH'S
OPERATIONS HAS BEEN THE ACQUISITION OF LICENSES TO USE PATENTED DEVICES
IN THE RADIOS AND TELEVISIONS IT MANUFACTURES, AND ITS TRANSACTIONS
HAVE INCLUDED LICENSING AGREEMENTS WITH RESPONDENT HAZELTINE RESEARCH,
INC. (HRI), AN ILLINOIS CORPORATION WHICH OWNS AND LICENSES DOMESTIC
PATENTS, PRINCIPALLY IN THE RADIO AND TELEVISION FIELDS.  HRI IS THE
WHOLLY OWNED SUBSIDIARY OF RESPONDENT HAZELTINE CORPORATION
(HAZELTINE), A SUBSTANTIALLY LARGER AND MORE DIVERSIFIED COMPANY THAT
HAS AMONG ITS ASSETS NUMEROUS FOREIGN PATENTS-- INCLUDING THE FOREIGN
COUNTERPARTS OF HRI'S DOMESTIC PATENTS-- WHICH IT LICENSES FOR USE IN
FOREIGN COUNTRIES. 

UNTIL 1959, ZENITH HAD OBTAINED THE RIGHT TO USE ALL HRI DOMESTIC
PATENTS UNDER HRI'S SO-CALLED STANDARD PACKAGE LICENSE.  IN THAT YEAR,
HOWEVER, WITH THE EXPIRATION OF ZENITH'S LICENSE IMMINENT, ZENITH
DECLINED TO ACCEPT HRI'S OFFER TO RENEW, ASSERTING THAT IT NO LONGER
REQUIRED A LICENSE FROM HRI.  NEGOTIATIONS PROCEEDED TO A STALEMATE,
AND IN NOVEMBER 1959, HRI BROUGHT SUIT IN THE NORTHERN DISTRICT OF
ILLINOIS, CLAIMING THAT ZENITH TELEVISION SETS INFRINGED HRI'S PATENTS
ON A PARTICULAR AUTOMATIC CONTROL SYSTEM.  ZENITH'S ANSWER ALLEGED
INVALIDITY OF THE PATENT ASSERTED AND NONINFRINGEMENT, AND FURTHER
ALLEGED THAT HRI'S CLAIM WAS UNENFORCEABLE BECAUSE OF PATENT MISUSE AS
WELL AS UNCLEAN HANDS THROUGH CONSPIRACY WITH FOREIGN PATENT POOLS.  ON
MAY 22, 1963, MORE THAN THREE YEARS AFTER ITS ANSWER HAD BEEN FILED,
ZENITH FILED A COUNTERCLAIM AGAINST HRI FOR TREBLE DAMAGES AND
INJUNCTIVE RELIEF, ALLEGING VIOLATIONS OF THE SHERMAN ACT BY MISUSE OF
HRI PATENTS, INCLUDING THE ONE IN SUIT, AS WELL AS BY CONSPIRACY AMONG
HRI, HAZELTINE, AND PATENT POOLS IN CANADA, ENGLAND, AND AUSTRALIA. 
ZENITH CONTENDED THAT THESE THREE PATENT POOLS HAD REFUSED TO LICENSE
THE PATENTS PLACED WITHIN THEIR EXCLUSIVE LICENSING AUTHORITY,
INCLUDING HAZELTINE PATENTS, TO ZENITH AND OTHERS SEEKING TO EXPORT
AMERICAN-MADE RADIOS AND TELEVISIONS INTO THOSE FOREIGN MARKETS. 

THE DISTRICT COURT, SITTING WITHOUT A JURY, RULED FOR ZENITH IN THE
INFRINGEMENT ACTION, 239 F.SUPP.  51, 68-69, AND ITS JUDGMENT IN THAT
RESPECT, WHICH WAS AFFIRMED BY THE COURT OF APPEALS, 388 F.2D 25, 30
33, IS NOT IN ISSUE HERE.  ON THE COUNTERCLAIM, THE DISTRICT COURT
RULED, FIRST, THAT HRI HAD MISUSED ITS DOMESTIC PATENTS BY ATTEMPTING
TO COERCE ZENITH'S ACCEPTANCE OF A FIVE-YEAR PACKAGE LICENSE, AND BY
INSISTING ON EXTRACTING ROYALTIES FROM UNPATENTED PRODUCTS.  239
F.SUPP.,AT 69-72, 76-77.  JUDGMENT WAS ENTERED IN ZENITH'S FAVOR FOR
TREBLE THE AMOUNT OF ITS ACTUAL DAMAGES OF APPROXIMATELY $50,000, AND
INJUNCTIVE RELIEF AGAINST FURTHER PATENT MISUSE WAS AWARDED.  SECOND,
HRI AND HAZELTINE WERE FOUND TO HAVE CONSPIRED WITH THE FOREIGN PATENT
POOLS TO EXCLUDE ZENITH FROM THE CANADIAN, ENGLISH, AND AUSTRALIAN
MARKETS.  HAZELTINE HAD GRANTED THE POOLS THE EXCLUSIVE RIGHT TO
LICENSE HAZELTINE PATENTS IN THEIR RESPECTIVE COUNTRIES AND HAD SHARED
IN THE POOLS' PROFITS, KNOWING THAT EACH POOL REFUSED TO LICENSE ITS
PATENTS FOR IMPORTATION AND THAT EACH ENFORCED ITS BAN ON IMPORTS WITH
THREATS OF INFRINGEMENT SUITS.  HRI, ALONG WITH ITS COCONSPIRATOR,
HAZELTINE, WAS THEREFORE HELD TO HAVE CONSPIRED WITH THE POOLS TO
RESTRAIN THE TRADE OR COMMERCE OF THE UNITED STATES, IN VIOLATION OF
SEC. 1 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. 1, AND
WAS LIABLE FOR INJURY CAUSED ZENITH'S FOREIGN BUSINESS BY THE OPERATION
OF THE POOLS.  239 F.SUPP.,AT 77-78.  TOTAL DAMAGES WITH RESPECT TO THE
THREE MARKETS, WHEN TREBLED, AMOUNTED TO NEARLY $35,000,000.  /1/
JUDGMENT IN THIS AMOUNT WAS AWARDED ZENITH, ALONG WITH INJUNCTIVE
RELIEF AGAINST FURTHER PARTICIPATION IN ANY ARRANGEMENT TO PREVENT
ZENITH FROM EXPORTING ELECTRONIC EQUIPMENT INTO ANY FOREIGN MARKET. 

RELYING UPON ITS FINDING THAT HRI AND ZENITH HAD STIPULATED BEFORE
TRIAL THAT HRI AND HAZELTINE WERE TO BE CONSIDERED AS ONE ENTITY FOR
PURPOSES OF THE LITIGATION, SEE 239 F.SUPP.,AT 69, THE COURT ENTERED
JUDGMENTS FOR TREBLE DAMAGES AND INJUNCTIVE RELIEF, BOTH WITH RESPECT
TO PATENT MISUSE AND CONSPIRACY, AGAINST HAZELTINE AS WELL AS AGAINST
THE NAMED COUNTER-DEFENDANT, HRI. 

ON APPEAL BY HRI AND HAZELTINE, THE COURT OF APPEALS SET ASIDE
ENTIRELY THE JUDGMENTS FOR DAMAGES AND INJUNCTIVE RELIEF ENTERED
AGAINST HAZELTINE, RULING THAT THE DISTRICT COURT LACKED JURISDICTION
OVER THAT COMPANY AND THAT THE STIPULATION RELIED UPON BY THE DISTRICT
COURT WAS AN INSUFFICIENT BASIS FOR ENTERING JUDGMENT AGAINST
HAZELTINE.  388 F.2D, AT 28-30.  WITH RESPECT TO ZENITH'S PATENT MISUSE
CLAIM, THE COURT OF APPEALS AFFIRMED THE TREBLE-DAMAGE AWARD AGAINST
HRI, BUT MODIFIED IN CERTAIN RESPECTS THE DISTRICT COURT'S INJUNCTION
AGAINST FURTHER MISUSE.  388 F.2D, AT 33-35, 39. 

THE COURT OF APPEALS ALSO REVERSED THE TREBLE-DAMAGE AWARD FOR
CONSPIRACY TO RESTRAIN ZENITH'S EXPORT TRADE.  WITHOUT REACHING ANY OF
THE OTHER ISSUES PRESENTED BY THE APPEAL ON THIS PHASE OF THE CASE, THE
COURT HELD THAT ZENITH HAD FAILED TO SUSTAIN ITS BURDEN UNDER SEC. 4 OF
THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. 15, TO PROVE THE FACT OF
DAMAGE-- INJURY TO ITS BUSINESS-- WITHIN THE RELEVANT FOUR-YEAR PERIOD
PRECEDING MAY 22, 1963, THE DATE ZENITH'S COUNTERCLAIM WAS FILED.  /2/
FINALLY, THE COURT OF APPEALS STRUCK THE INJUNCTION AGAINST HRI'S
PARTICIPATION IN CONSPIRACIES RESTRICTING ZENITH'S TRADE IN FOREIGN
MARKETS. 

WE GRANTED CERTIORARI, 391 U.S. 933, TO CONSIDER AMONG OTHER THINGS
THE QUESTION WHETHER THE COURT OF APPEALS PROPERLY DISCHARGED ITS
APPELLATE FUNCTION UNDER RULE 52(A) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, WHICH SPECIFIES THAT THE FINDINGS OF FACT MADE BY A DISTRICT
COURT SITTING WITHOUT A JURY ARE NOT TO BE SET ASIDE UNLESS "CLEARLY
ERRONEOUS." 

 I. THE JUDGMENTS AGAINST HAZELTINE. 

THE NAMED PLAINTIFF IN THE PATENT INFRINGEMENT COMPLAINT WHICH BEGAN
THIS LITIGATION WAS HRI, NOT ITS PARENT, HAZELTINE; ZENITH'S
COUNTERCLAIM NAMED ONLY HRI AS THE "COUNTER-DEFENDANT," IDENTIFYING HRI
AND HAZELTINE AS "COUNTER-DEFENDANT AND ITS PARENT."  AFTER ZENITH HAD
FILED ITS ANSWER AND HAD DELIVERED A DRAFT OF ITS COUNTERCLAIM TO HRI'S
ATTORNEYS-- BOTH THE ANSWER AND THE COUNTERCLAIM ALLEGING THAT HRI HAD
UNLAWFULLY CONSPIRED WITH HAZELTINE AND FOREIGN PATENT POOLS-- HRI AND
ZENITH STIPULATED THAT "FOR PURPOSES OF THIS LITIGATION PLAINTIFF AND
ITS PARENT HAZELTINE CORPORATION WILL BE CONSIDERED TO BE ONE AND THE
SAME COMPANY." 

ON MAY 22, 1963, TWO WEEKS AFTER THE STIPULATION HAD BEEN SIGNED,
ZENITH FILED ITS COUNTERCLAIM, SEEKING MONEY DAMAGES FROM HRI AND AN
INJUNCTION AGAINST HRI AND THOSE "IN PRIVITY" WITH IT.  HAZELTINE WAS
NOT SERVED WITH THE COUNTERCLAIM AND WAS NOT NAMED AS A PARTY, ALTHOUGH
IT WAS ALLEGED TO BE A COCONSPIRATOR WITH HRI AND THE FOREIGN PATENT
POOLS.  HAZELTINE MADE NO APPEARANCE IN THE LITIGATION UNTIL ZENITH
PROPOSED THAT JUDGMENT BE ENTERED AGAINST IT, AT WHICH TIME HAZELTINE
FILED A "SPECIAL APPEARANCE."  INSOFAR AS THE RECORD REVEALS, HAZELTINE
DID NOT FORMALLY PARTICIPATE IN THE PROCEEDINGS UNTIL AFTER THE
DISTRICT COURT HAD ENTERED ITS INITIAL FINDINGS OF FACT AND CONCLUSIONS
OF LAW.  ON APRIL 5, 1965, AFTER HAZELTINE'S SPECIAL APPEARANCE, THE
TRIAL JUDGE ENTERED JUDGMENT AGAINST HAZELTINE AS WELL AS HRI, THEREBY
REJECTING HAZELTINE'S OBJECTION THAT THE COURT WAS WITHOUT JURISDICTION
OVER IT.  APPARENTLY, THE TRIAL COURT BASED ITS DECISION ON THE
PRETRIAL STIPULATION /3/  AND ITS EARLIER FINDING THAT: 

"THE PARTIES STIPULATED THAT FOR THE PURPOSES OF THIS LITIGATION
HAZELTINE RESEARCH, INC. AND ITS PARENT, HAZELTINE CORPORATION, WOULD
BE CONSIDERED AS ONE ENTITY OPERATING AS A PATENT HOLDING AND LICENSING
COMPANY, ENGAGED IN THE EXPLOITATION OF PATENT RIGHTS IN THE
ELECTRONICS INDUSTRY IN THE UNITED STATES AND IN FOREIGN COUNTRIES." 
239 F.SUPP.,AT 69. 

THE COURT OF APPEALS WAS QUITE RIGHT IN VACATING THE JUDGMENTS
AGAINST HAZELTINE.  IT IS ELEMENTARY THAT ONE IS NOT BOUND BY A
JUDGMENT IN PERSONAM RESULTING FROM LITIGATION IN WHICH HE IS NOT
DESIGNATED AS A PARTY OR TO WHICH HE HAS NOT BEEN MADE A PARTY BY
SERVICE OF PROCESS.  HANSBERRY V. LEE, 311 U.S. 32, 40-41 (1940).  THE
CONSISTENT CONSTITUTIONAL RULE HAS BEEN THAT A COURT HAS NO POWER TO
ADJUDICATE A PERSONAL CLAIM OR OBLIGATION UNLESS IT HAS JURISDICTION
OVER THE PERSON OF THE DEFENDANT.  E.G., PENNOYER V. NEFF, 95 U.S. 714
(1878); VANDERBILT V. VANDERBILT, 354 U.S. 416, 418 (1957). 

HERE, HAZELTINE WAS NOT NAMED AS A PARTY, WAS NEVER SERVED AND DID
NOT FORMALLY APPEAR AT THE TRIAL.  NOR WAS THE STIPULATION AN ADEQUATE
SUBSTITUTE FOR THE NORMAL METHODS OF OBTAINING JURISDICTION OVER A
PERSON OR A CORPORATION.  THE STIPULATION REPRESENTED HRI'S AGREEMENT
TO BE BOUND BY AND TO BE LIABLE FOR THE ACTS OF ITS PARENT, BUT IT WAS
SIGNED ONLY BY HRI, THROUGH ITS ATTORNEY, DODDS.  HAZELTINE DID NOT
EXECUTE THE STIPULATION, AND DODDS, ALTHOUGH AN OFFICER OF HAZELTINE,
DID NOT PURPORT TO BE SIGNING ON ITS BEHALF.  THE TRIAL COURT
APPARENTLY VIEWED THE STIPULATION AS BINDING HAZELTINE, AS EQUIVALENT
TO AN ENTRY OF APPARENCE, OR AS CONSENT TO ENTRY OF JUDGMENT AGAINST
IT.  THE STIPULATION ON ITS FACE, HOWEVER, HARDLY WARRANTS THIS
CONSTRUCTION, AND IF THERE WERE OTHER CIRCUMSTANCES WHICH JUSTIFIED THE
TRIAL COURT'S CONCLUSION, THE FINDINGS DO NOT REVEAL THEM. 

PERHAPS ZENITH COULD HAVE PROVED AND THE TRIAL COURT MIGHT HAVE
FOUND THAT HRI AND HAZELTINE WERE ALTER EGOS; BUT ABSENT JURISDICTION
OVER HAZELTINE, THAT DETERMINATION WOULD BIND ONLY HRI.  IF THE ALTER
EGO ISSUE HAD BEEN LITIGATED, AND IF THE TRIAL COURT HAD DECIDED THAT
HRI AND HAZELTINE WERE ONE AND THE SAME ENTITY AND THAT JURISDICTION
OVER HRI GAVE THE COURT JURISDICTION OVER HAZELTINE, PERHAPS
HAZELTINE'S APPEARANCE BEFORE JUDGMENT WITH FULL OPPORTUNITY TO CONTEST
JURISDICTION WOULD WARRANT ENTRY OF JUDGMENT AGAINST IT.  BUT THAT IS
NOT WHAT OCCURRED HERE.  THE TRIAL COURT'S JUDGMENT AGAINST HAZELTINE
WAS BASED WHOLLY ON HRI'S STIPULATION.  HRI MAY HAVE EXECUTED THE
STIPULATION TO AVOID LITIGATING THE ALTER EGO ISSUE, /4/  BUT THIS FACT
CANNOT FORECLOSE HAZELTINE, WHICH HAS NEVER HAD ITS DAY IN COURT ON THE
QUESTION OF WHETHER IT AND ITS SUBSIDIARY SHOULD BE CONSIDERED THE SAME
ENTITY FOR PURPOSES OF THIS LITIGATION. 

LIKEWISE, WERE IT SHOWN THAT HAZELTINE THROUGH ITS OFFICER, DODDS,
IN FACT CONTROLLED THE LITIGATION ON BEHALF OF HRI, AND IF THE CLAIM
WERE MADE THAT THE JUDGMENT AGAINST HRI WOULD BE RES JUDICATA AGAINST
HAZELTINE BECAUSE OF THIS CONTROL, THAT CLAIM ITSELF COULD BE FINALLY
ADJUDICATED AGAINST HAZELTINE ONLY IN A COURT WITH JURISDICTION OVER
THAT COMPANY.  /5/  SEE G. & C. MERRIAM CO. V. SAALFIELD, 241 U.S. 22
(1916); SCHNELL V. PETER ECKRICH & SONS, INC., 365 U.S. 260 (1961). 

NEITHER THE JUDGMENT FOR DAMAGES NOR THE INJUNCTION AGAINST
HAZELTINE WAS PROPER.  ALTHOUGH INJUNCTIONS ISSUED BY FEDERAL COURTS
BIND NOT ONLY THE PARTIES DEFENDANT IN A SUIT, BUT ALSO THOSE PERSONS
"IN ACTIVE CONCERT OR PARTICIPATION WITH THEM WHO RECEIVE ACTUAL NOTICE
OF THE ORDER BY PERSONAL SERVICE OR OTHERWISE," FED. RULE CIV. PROC.
65(D), A NONPARTY WITH NOTICE CANNOT BE HELD IN CONTEMPT UNTIL SHOWN TO
BE IN CONCERT OR PARTICIPATION.  IT WAS ERROR TO ENTER THE INJUNCTION
AGAINST HAZELTINE, WITHOUT HAVING MADE THIS DETERMINATION IN A
PROCEEDING TO WHICH HAZELTINE WAS A PARTY.  /6/

II.  THE FOREIGN PATENT POOLS. 

        A. THE TREBLE-DAMAGE AWARD. 

HRI'S MAJOR POINTS IN THE COURT OF APPEALS WERE THAT NO INJURY TO
ZENITH'S BUSINESS DURING THE DAMAGE PERIOD HAD BEEN PROVED; THAT IF
ZENITH HAD SUFFERED INJURY, IT RESULTED WHOLLY OR PARTLY FROM CONDUCT
PRIOR TO MAY 22, 1959, AND TO THIS EXTENT WAS BARRED BY THE STATUTE OF
LIMITATIONS AND BY ZENITH'S 1957 SETTLEMENT OF CERTAIN ANTITRUST
LITIGATION AGAINST RCA, GENERAL ELECTRIC, AND WESTERN ELECTRIC, WHICH
HAD THE EFFECT OF RELEASING HRI FROM ALL LIABILITY FOR PRE-SETTLEMENT
ACTS OF THE FOREIGN PATENT POOLS; /7/  THAT THE HAZELTINE COMPANIES HAD
NOT ILLEGALLY CONSPIRED WITH FOREIGN POOLS; AND THAT THE DAMAGE AWARD
WAS EXCESSIVE.  PASSING THE OTHER ISSUES PRESSED BY HRI, INCLUDING THE
LIMITATIONS DEFENSE, THE COURT OF APPEALS HELD THAT ZENITH HAD FAILED
TO PROVE ANY INJURY TO ITS EXPORT BUSINESS DURING THE DAMAGE PERIOD
WHICH RESULTED FROM POOL ACTIVITIES EITHER BEFORE OR AFTER THE
BEGINNING OF THE DAMAGE PERIOD, AND THAT THE DISTRICT COURT'S FINDING
TO THE CONTRARY WAS CLEARLY ERRONEOUS.  /8/ 

WE HAVE CONCLUDED THAT THE COURT OF APPEALS ERRED IN SETTING ASIDE
THE DISTRICT COURT'S DECISION WITH RESPECT TO THE FACT OF DAMAGE IN
CANADA.  ZENITH'S EVIDENCE, ALTHOUGH BY NO MEANS CONCLUSIVE, WAS
SUFFICIENT TO SUSTAIN THE INFERENCE THAT ZENITH HAD IN FACT BEEN
INJURED TO SOME EXTENT /9/ BY THE CANADIAN POOL'S RESTRAINTS UPON
IMPORTS OF RADIO AND TELEVISION SETS.  ON THE OTHER HAND, WE AGREE WITH
THE COURT OF APPEALS THAT THE DISTRICT COURT ERRED AS TO THE ENGLISH
AND AUSTRALIAN MARKETS.     1.  THE CANADIAN POOL. 

THE FINDINGS OF THE DISTRICT COURT WITH RESPECT TO THE OPERATIONS OF
THE CANADIAN POOL MAY BE BRIEFLY SUMMARIZED.  THE CANADIAN PATENT POOL,
CANADIAN RADIO PATENTS, LTD. (CRPL), WAS FORMED IN 1926 BY THE GENERAL
ELECTRIC COMPANY OF THE UNITED STATES THROUGH ITS SUBSIDIARY, CANADIAN
GENERAL ELECTRIC COMPANY, AND BY WESTINGHOUSE THROUGH ITS CANADIAN
SUBSIDIARY.  THE POOL WAS MADE UP LARGELY OF CANADIAN MANUFACTURERS,
MOST OF WHICH WERE SUBSIDIARIES OF AMERICAN COMPANIES.  THE POOL FOR
MANY YEARS HAD THE EXCLUSIVE RIGHT TO SUBLICENSE THE PATENTS OF ITS
MEMBER COMPANIES AND ALSO THOSE OF HAZELTINE AND A NUMBER OF OTHER
FOREIGN CONCERNS.  ABOUT 5,000 PATENTS WERE AVAILABLE TO THE POOL FOR
LICENSING, AND ONLY PACKAGE LICENSES WERE GRANTED, COVERING ALL PATENTS
IN THE POOL AND STRICTLY LIMITED TO MANUFACTURE IN CANADA.  NO LICENSE
TO IMPORTERS WAS AVAILABLE.  THE CHIEF PURPOSE OF THE POOL WAS TO
PROTECT THE MANUFACTURING MEMBERS AND LICENSEES FROM COMPETITION BY
AMERICAN AND OTHER FOREIGN COMPANIES SEEKING TO EXPORT THEIR PRODUCTS
INTO CANADA. 

CRPL'S EFFORTS TO PREVENT IMPORTATION OF RADIO AND TELEVISION SETS
FROM THE UNITED STATES WERE HIGHLY ORGANIZED AND EFFECTIVE.  AGENTS,
INVESTIGATORS, AND MANUFACTURER AND DISTRIBUTOR TRADE ASSOCIATIONS
SYSTEMATICALLY POLICED THE MARKET; WARNING NOTICES AND ADVERTISEMENTS
ADVISED DISTRIBUTORS, DEALERS, AND EVEN CONSUMERS AGAINST SELLING OR
USING UNLICENSED EQUIPMENT.  INFRINGEMENT SUITS OR THREATS THEREOF WERE
REGULARLY AND EFFECTIVELY EMPLOYED TO DISSUADE DEALERS FROM HANDLING
AMERICAN-MADE SETS. 

FOR MANY YEARS ZENITH ATTEMPTED TO ESTABLISH DISTRIBUTION IN CANADA,
BUT DISTRIBUTORS WERE WARNED OFF BY THE POOL, AND ZENITH'S EFFORTS TO
SECURE A LICENSE FOR AMERICAN-MADE GOODS WERE UNSUCCESSFUL.  ZENITH
THEN BROUGHT AN ANTITRUST SUIT AGAINST RCA, GENERAL ELECTRIC, AND
WESTERNELECTRIC.  /10/  THIS LITIGATION WAS FAVORABLY SETTLED, ZENITH
RECEIVING, AMONG OTHER THINGS, WORLDWIDE LICENSES ON PATENTS OWNED BY
THE NAMED DEFENDANTS.  ARMED WITH THESE AND OTHER LICENSES, ZENITH IN
1958 BEGAN EXPORTING RADIO AND TELEVISION PRODUCTS TO CANADA.  IT WAS
PROMPTLY INFORMED BY CRPL THAT TO CONTINUE BUSINESS IN CANADA, ZENITH
WOULD BE REQUIRED TO SIGN CRPL'S STANDARD LICENSE, WHICH DID NOT PERMIT
IMPORTATION, AND THAT TO SELL IN CANADA IT MUST MANUFACTURE THERE. 
ZENITH WAS NOTIFIED AT THE TIME THAT IT WAS INFRINGING AT LEAST ONE OF
HAZELTINE'S PATENTS WHICH HAD BEEN PLACED WITH CRPL FOR LICENSING IN
CANADA.  SOON AFTER THIS DEMAND BY CRPL, HRI BEGAN ITS INFRINGEMENT
SUIT AGAINST ZENITH. 

SOME OF THE TRIAL COURT'S FINDINGS DESCRIBING THE OPERATIONS OF THE
CANADIAN POOL AND ITS "DRASTIC" IMPACT UPON ZENITH'S FOREIGN COMMERCE
DID NOT DATE THE EVENTS OR STATE WHETHER THEY HAD OCCURRED BEFORE OR
AFTER MAY 22, 1959.  THE DAMAGE AWARD WAS CONFINED TO INJURIES
SUSTAINED DURING THE STATUTORY PERIOD, BUT THE TRIAL COURT APPARENTLY
DEEMED IT IMMATERIAL WHETHER THE DAMAGE-CAUSING ACTS OCCURRED BEFORE OR
AFTER THE START OF THE DAMAGE PERIOD.  DAMAGES WERE AWARDED ON THE
ASSUMPTION THAT ZENITH, ABSENT THE CONSPIRACY, WOULD HAVE HAD 16% OF
THE CANADIAN TELEVISION MARKET ON MAY 22, 1959, AND THROUGHOUT THE
DAMAGE PERIOD RATHER THAN ITS ACTUAL 3% SHARE.  /11/  SINCE THE FAILURE
TO HAVE 16% OF THE MARKET ON THE FIRST DAY OF THE DAMAGE PERIOD WAS
ASCRIBED TO POOL OPERATIONS, THOSE OPERATIONS MUST HAVE OCCURRED PRIOR
TO MAY 22, 1959.  SOME PART OF THE DAMAGES AWARDED, THEREFORE,
NECESSARILY RESULTED FROM PRE-DAMAGE PERIOD CONDUCT.  /12/ 

THE COURT OF APPEALS REVERSED THE DISTRICT COURT BECAUSE IT
CONSIDERED THE EVIDENCE INSUFFICIENT TO PROVE THE FACT OF ANY DAMAGE TO
ZENITH AFTER MAY 22, 1959.  HAVING PUT ASIDE HRI'S STATUTE OF
LIMITATIONS DEFENSE, BELATEDLY RAISED IN THE DISTRICT COURT AND PRESSED
IN THE COURT OF APPEALS, /13/  THE IMPORT OF THE COURT'S DECISION WAS
THAT ZENITH HAD NOT BEEN DAMAGED AFTER MAY 22, 1959, BY ANY ACT OF THE
POOL, WHETHER OCCURRING BEFORE OR AFTER THE DATE.  THE COURT OF
APPEALS' OVERRIDING JUDGMENT-- AS IT HAD TO BE IF ITS NO-INJURY
RATIONALE WERE TO MEET CLAIMS OF DAMAGE PERIOD INJURY FROM PRE-DAMAGE
PERIOD CONDUCT-- WAS THAT ZENITH WOULD HAVE DONE NO MORE BUSINESS IN
CANADA AFTER MAY 22, 1959, HAD THE PATENT POOL NEVER OPERATED IN THAT
COUNTRY. 

THE COURT OF APPEALS WAS CLEARLY IN ERROR.  THE EVIDENCE WAS QUITE
SUFFICIENT TO SUSTAIN A FINDING THAT COMPETING BUSINESS CONCERNS AND
PATENTEES JOINED TOGETHER TO POOL THEIR CANADIAN PATENTS, GRANTING ONLY
PACKAGE LICENSES AND REFUSING TO LICENSE IMPORTED GOODS.  THEIR CLEAR
PURPOSE WAS TO EXCLUDE CONCERNS LIKE ZENITH FROM THE CANADIAN MARKET
UNLESS WILLING TO MANUFACTURE THERE.  ZENITH, CONSEQUENTLY, WAS NEVER
ABLE TO OBTAIN A LICENSE.  THIS FACT AND THE POOL'S VIGOROUS CAMPAIGN
TO DISCOURAGE IMPORTERS, DISTRIBUTORS, DEALERS, AND CONSUMERS FROM
SELLING, HANDLING, OR USING UNLICENSED FOREIGN MERCHANDISE EFFECTIVELY
PREVENTED ZENITH FROM MAKING ANY HEADWAY IN THE CANADIAN MARKET UNTIL
AFTER THE 1957 SETTLEMENT WITH RCA AND ITS CODEFENDANTS.  AND EVEN IN
1958, WHEN ZENITH UNDERTOOK IN EARNEST TO ESTABLISH ITS DISTRIBUTION
SYSTEM IN CANADA AND TO MARKET ITS MERCHANDISE, ZENITH WAS MET WITH
FURTHER POOL ADVERTISEMENTS THREATENING ACTION AGAINST IMPORTED GOODS
AND FURTHER NOTIFICATIONS, CONTINUING PAST MAY 22, 1959, THAT ITS
PRODUCTS WERE INFRINGING POOL PATENTS AND THAT NO LICENSE WAS AVAILABLE
UNLESS ZENITH MANUFACTURED IN CANADA. 

THIS EVIDENCE CLEARLY WARRANTS THE INFERENCE THAT CRPL'S PAST
CONDUCT INTERFERED WITH AND MADE MORE DIFFICULT THE DISTRIBUTION OF
ZENITH PRODUCTS IN 1959 AND LATER YEARS.  THE DISTRICT COURT COULD
REASONABLY CONCLUDE THAT THE CUMULATIVE EFFECTS OF THE POOL'S CAMPAIGN
AGAINST IMPORTED GOODS HAD CONSEQUENCES LASTING WELL INTO THE DAMAGE
PERIOD.  IT COULD ALSO RATIONALLY BE FOUND FROM THE EVIDENCE THAT
ZENITH, BEGINNING IN 1958, COULD NOT HAVE REACHED ITS MAXIMUM POTENTIAL
BY MAY 22, 1959, THAT THE POOL HAD EFFECTIVELY PREVENTED AN EARLIER
BEGINNING, AND THAT ZENITH THEREFORE SUFFERED DAMAGE DURING THE DAMAGE
PERIOD FROM HAVING A SMALLER SHARE OF THE MARKET THAN IT WOULD HAVE HAD
IF THE POOL HAD NEVER EXISTED. 

WE ALSO CONCLUDE THAT THE RECORD EVIDENCE IS SUFFICIENT TO SUPPORT A
FINDING OF DAMAGE RESULTING FROM EVENTS OCCURRING AFTER THE BEGINNING
OF THE DAMAGE PERIOD.  WE NEED NOT MERELY ASSUME THAT THE CANADIAN POOL
CONTINUED THROUGHOUT THE PERIOD OF THIS SUIT, AS WE ARE ENTITLED TO DO
IN THE ABSENCE OF CLEAR EVIDENCE OF ITS TERMINATION.  SEE, E.G., LOCAL
167 V. UNITED STATES, 291 U.S. 293, 297-298 (1934); UNITED STATES V.
OREGON STATE MEDICAL SOCIETY, 343 U.S. 326, 333 (1952).  HRI FRANKLY
CONCEDED THE CONTINUATION OF THE POOL BEFORE THE DISTRICT COURT, /14/
AND IT APPEARS SUFFICIENTLY CLEAR THAT THROUGHOUT THIS TIME ZENITH WAS
DEPRIVED OF WHAT HAD ALWAYS BEEN REFUSED IT-- A LICENSE ON POOL PATENTS
PERMITTING IT TO SELL AMERICAN-MADE MERCHANDISE IN CANADA. 

ON MAY 12, 1959, THE POOL MANAGER CONFERRED WITH ZENITH'S VICE
PRESIDENT, INFORMING HIM THAT ZENITH WAS INFRINGING POOL PATENTS AND
WOULD REQUIRE A LICENSE, BUT THAT LICENSES WERE GRANTED ONLY FOR LOCAL
MANUFACTURE.  THIS WAS FOLLOWED ON JUNE 5, 1959, BY A LETTER STATING
WITHOUT RESERVATION THAT ZENITH RECEIVERS WERE INFRINGING, AND
ENCLOSING THE POOL'S STANDARD LICENSE FORM.  THIS WAS NOTHING MORE NOR
LESS THAN A DEMAND DURING THE DAMAGE PERIOD THAT ZENITH EITHER
MANUFACTURE IN CANADA AND TAKE THE STANDARD PACKAGE LICENSE OR CEASE
ITS ACTIVITIES IN THAT COUNTRY.  /15/  THERE IS NO EVIDENCE THAT THE
POOL EVER RETREATED FROM THAT POSITION DURING THE NEXT FOUR YEARS. 

ZENITH THUS CONTINUED TO OPERATE WITHOUT A PATENT LICENSE UNBURDENED
BY CONSPIRATORIAL CONDUCT AND GRANTED ON TERMS WHICH WOULD SATISFY THE
ANTITRUST LAWS.  THIS DEPRIVATION IN ITSELF NECESSARILY HAD AN IMPACT
ON ZENITH AND CONSTITUTED AN INJURY TO ITS BUSINESS.  WE FIND
SINGULARLY UNPERSUASIVE THE ARGUMENT THAT ZENITH WAS AS WELL OFF
WITHOUT A LICENSE AS WITH ONE.  THIS IS LITTLE MORE THAN AN ASSERTION
THAT POOL LICENSES, FROM WHICH CRPL AND ITS PARTICIPANTS ENJOYED
SUBSTANTIAL INCOME, WERE WITHOUT VALUE.  WITHOUT THE LICENSE, DOING
BUSINESS IN CANADA OBVIOUSLY INVOLVED WEIGHTY RISKS FOR ZENITH ITSELF,
BESIDES REQUIRING IT TO CONVINCE THE TRADE THAT IT COULD LEGALLY AND
EFFECTIVELY DO BUSINESS WITHOUT CLEARANCE FROM CRPL.  /16/ 

OF COURSE, ZENITH DETERMINED TO TAKE THESE RISKS, SERIOUS AS THEY
WERE.  ALTHOUGH HRI BROUGHT THE INSTANT LITIGATION CLAIMING
INFRINGEMENT OF AN HRI DOMESTIC PATENT, THE FOREIGN COUNTERPART OF
WHICH HAD BEEN MADE AVAILABLE TO THE CANADIAN POOL BY HAZELTINE, ZENITH
PERSEVERED IN ITS CANADIAN EFFORTS.  THE CLAIM IS NOW PRESSED, AND THE
COURT OF APPEALS HELD, THAT THE POOL BOTHERED NEITHER ZENITH NOR ITS
DISTRIBUTORS AFTER MID-1959 AND THAT ZENITH RAN THE GANTLET SO
SUCCESSFULLY THAT NOT HAVING A LICENSE MADE NO DIFFERENCE WHATSOEVER. 

IT IS TRUE THAT THE RECORD DISCLOSES NO SPECIFIC INSTANCE OF
SUBSEQUENT INFRINGEMENT SUITS OR THREATS AGAINST ZENITH'S EXISTING OR
POTENTIAL DISTRIBUTORS OR DEALERS.  BUT THERE IS EVIDENCE THAT THE POOL
WAS NOT DORMANT AFTER MAY 1959.  THE RECORD CONTAINS A LETTER FROM THE
POOL TO A DISTRIBUTOR OF MOTOROLA PRODUCTS CONTAINING CLEAR WARNINGS
AGAINST HANDLING UNLICENSED, IMPORTED MERCHANDISE.  /17/  MORE
SIGNIFICANT, THE FAIR IMPORT OF THE TESTIMONY BY ZENITH OFFICERS WAS
THAT THE POOL REMAINED ACTIVE DURING THE DAMAGE PERIOD AND PREVENTED
ZENITH FROM ESTABLISHING AN EFFECTIVE DISTRIBUTION SYSTEM THROUGHOUT
CANADA.  ZENITH WAS ABLE TO OBTAIN INDEPENDENT DISTRIBUTORS IN THE
WESTERN PROVINCES, BUT IT WAS UNABLE TO DO SO IN THE CENTRAL AND THE
MARITIME PROVINCES, WHERE IT NECESSARILY RELIED ON ITS OWN SUBSIDIARIES
FOR DISTRIBUTION.  THESE OFFICERS, EXPERIENCED BUSINESSMEN, ALSO
TESTIFIED TO THE SIMILARITIES BETWEEN THE CANADIAN AND AMERICAN
MARKETS, ATTRIBUTING ZENITH'S MUCH POORER CANADIAN PERFORMANCE TO THE
DISCOURAGING AND REPRESSIVE EFFECTS OF THE POOL.  THE COURT OF APPEALS
DID NOT REFUSE TO CREDIT THIS TESTIMONY, AS HRI INSISTS WE SHOULD DO,
/18/  BUT ACCEPTING IT AS SOME EVIDENCE OF DAMAGE, CONSIDERED IT OF
INSUFFICIENT WEIGHT TO PROVE INJURY TO ZENITH'S BUSINESS.  IN THIS
RESPECT THE COURT OF APPEALS BOTH GAVE INSUFFICIENT DEFERENCE TO THE
FINDINGS OF THE TRIAL JUDGE AND FAILED TO ADHERE TO THE TEACHINGS OF
BIGELOW V. RKO RADIO PICTURES, INC., 327 U.S. 251 (1946), AND OTHER
CASES DEALING WITH THE STANDARD OF PROOF IN TREBLE-DAMAGE ACTIONS. 

IN APPLYING THE CLEARLY ERRONEOUS STANDARD TO THE FINDINGS OF A
DISTRICT COURT SITTING WITHOUT A JURY, APPELLATE COURTS MUST CONSTANTLY
HAVE IN MIND THAT THEIR FUNCTION IS NOT TO DECIDE FACTUAL ISSUES DE
NOVO.  THE AUTHORITY OF AN APPELLATE COURT, WHEN REVIEWING THE FINDINGS
OF A JUDGE AS WELL AS THOSE OF A JURY, IS CIRCUMSCRIBED BY THE
DEFERENCE IT MUST GIVE TO DECISIONS OF THE TRIER OF THE FACT, WHO IS
USUALLY IN A SUPERIOR POSITION TO APPRAISE AND WEIGH THE EVIDENCE.  THE
QUESTION FOR THE APPELLATE COURT UNDER RULE 52(A) IS NOT WHETHER IT
WOULD HAVE MADE THE FINDINGS THE TRIAL COURT DID, BUT WHETHER "ON THE
ENTIRE EVIDENCE (IT) IS LEFT WITH THE DEFINITE AND FIRM CONVICTION THAT
A MISTAKE HAS BEEN COMMITTED."  UNITED STATES V. UNITED STATES GYPSUM
CO., 333 U.S. 364, 395 (1948).  SEE ALSO UNITED STATES V. NATIONAL
ASSN. OF REAL ESTATE BOARDS, 339 U.S. 485, 495-496 (1950); COMMISSIONER
V. DUBERSTEIN, 363 U.S. 278, 289-291 (1960). 

TRIAL AND APPELLATE COURTS ALIKE MUST ALSO OBSERVE THE PRACTICAL
LIMITS OF THE BURDEN OF PROOF WHICH MAY BE DEMANDED OF A TREBLE-DAMAGE
PLAINTIFF WHO SEEKS RECOVERY FOR INJURIES FROM A PARTIAL OR TOTAL
EXCLUSION FROM A MARKET; DAMAGE ISSUES IN THESE CASES ARE RARELY
SUSCEPTIBLE OF THE KIND OF CONCRETE, DETAILED PROOF OF INJURY WHICH IS
AVAILABLE IN OTHER CONTEXTS.  THE COURT HAS REPEATEDLY HELD THAT IN THE
BASENCE OF MORE PRECISE PROOF, THE FACTFINDER MAY "CONCLUDE AS A MATTER
OF JUST AND REASONABLE INFERENCE FROM THE PROOF OF DEFENDANTS' WRONGFUL
ACTS AND THEIR TENDENCY TO INJURE PLAINTIFFS' BUSINESS, AND FROM THE
EVIDENCE OF THE DECLINE IN PRICES, PROFITS AND VALUES, NOT SHOWN TO BE
ATTRIBUTABLE TO OTHER CAUSES, THAT DEFENDANTS' WRONGFUL ACTS HAD CAUSED
DAMAGE TO THE PLAINTIFFS."  BIGELOW V. RKO PICTURES, INC., SUPRA, AT
264.  SEE ALSO EASTMAN KODAK CO. V. SOUTHERN PHOTO MATERIALS CO., 273
U.S. 359, 377-379 (1927); STORY PARCHMENT CO. V. PATERSON PARCHMENT
PAPER CO., 282 U.S. 555, 561-566 (1931). 

IN BIGELOW, A TREBLE-DAMAGE PLAINTIFF CLAIMED INJURY FROM A
CONSPIRACY AMONG FILM DISTRIBUTORS TO DENY HIM FIRST-RUN PICTURES.  HE
OFFERED EVIDENCE COMPARING HIS PROFITS WITH THOSE OF A COMPETING
THEATER GRANTED FIRST-RUN SHOWINGS AND ALSO MEASURING HIS CURRENT
PROFITS AGAINST THOSE EARNED WHEN FIRST-RUN FILMS HAD BEEN AVAILABLE TO
HIM.  THIS COURT, REVERSING THE COURT OF APPEALS, FOUND THE EVIDENCE
SUFFICIENT TO SUSTAIN AN AWARD OF DAMAGES.  ALTHOUGH THE FACTFINDER IS
NOT ENTITLED TO BASE A JUDGMENT ON SPECULATION OR GUESSWORK, 

"THE JURY MAY MAKE A JUST AND REASONABLE ESTIMATE OF THE DAMAGE
BASED ON RELEVANT DATA, AND RENDER ITS VERDICT ACCORDINGLY.  IN SUCH
CIRCUMSTANCES, 'JURIES ARE ALLOWED TO ACT UPON PROBABLE AND
INFERENTIAL, AS WELL AS DIRECT AND POSITIVE PROOF.'  STORY PARCHMENT
CO. V. PATERSON CO., SUPRA, 561-4; EASTMAN KODAK CO. V. SOUTHERN PHOTO
CO., SUPRA, 377-9.  ANY OTHER RULE WOULD ENABLE THE WRONGDOER TO PROFIT
BY HIS WRONGDOING AT THE EXPENSE OF HIS VICTIM.  IT WOULD BE AN
INDUCEMENT TO MAKE WRONGDOING SO EFFECTIVE AND COMPLETE IN EVERY CASE
AS TO PRECLUDE ANY RECOVERY, BY RENDERING THE MEASURE OF DAMAGES
UNCERTAIN.  FAILURE TO APPLY IT WOULD MEAN THAT THE MORE GRIEVOUS THE
WRONG DONE, THE LESS LIKELIHOOD THERE WOULD BE OF A RECOVERY."  327
U.S.,AT 264-265.     HERE, ZENITH WAS DENIED A VALUABLE LICENSE AND
SUBMITTED TESTIMONY THAT WITHOUT THE LICENSE IT HAD ENCOUNTERED
DISTRIBUTION DIFFICULTIES WHICH PREVENTED ITS SECURING A SHARE OF THE
MARKET COMPARABLE TO THAT WHICH IT ENJOYED IN THE UNITED STATES, AND
WHICH ITS BUSINESS PROFICIENCY, DEMONSTRATED IN THE UNITED STATES,
DICTATED IT SHOULD HAVE OBTAINED IN CANADA.  CRPL WAS AN ESTABLISHED
ORGANIZATION WITH A LONG HISTORY OF SUCCESSFULLY EXCLUDING IMPORTED
MERCHANDISE; AND IN VIEW OF ITS CONTINUED EXISTENCE DURING THE DAMAGE
PERIOD, THE INJURY ALLEGED BY ZENITH WAS PRECISELY THE TYPE OF LOSS
THAT THE CLAIMED VIOLATIONS OF THE ANTITRUST LAWS WOULD BE LIKELY TO
CAUSE.  THE TRIAL COURT WAS ENTITLED TO INFER FROM THIS CIRCUMSTANTIAL
EVIDENCE THAT THE NECESSARY CAUSAL RELATION BETWEEN THE POOL'S CONDUCT
AND THE CLAIMED DAMAGE EXISTED.  SEE CONTINENTAL ORE CO. V. UNION
CARBIDE & CARBON CORP., 370 U.S. 690, 696-701 (1962). 

2.  THE ENGLISH POOL. 

HAZELTINE PATENTS WERE MADE AVAILABLE TO THE ENGLISH POOL IN 1930. 
THE POOL ISSUED ONLY PACKAGE LICENSES, RESTRICTED TO LOCAL
MANUFACTURE.  ALTHOUGH POOL RADIO PATENTS HAD EXPIRED PRIOR TO THE
BEGINNING OF THE DAMAGE PERIOD, THE TRIAL COURT FOUND, AND WE ASSUME,
THAT THE POOL HELD TELEVISION PATENTS WHICH WOULD NOT BE LICENSED FOR
TELEVISION SETS MADE IN THE UNITED STATES.  /19/  ZENITH WAS INTERESTED
IN THE ENGLISH MARKET AND MADE EXCLUSIVE ARRANGEMENTS WITH ONE
DISTRIBUTOR DESIRING TO HANDLE ITS MERCHANDISE.  AT NO TIME DURING OR
BEFORE THE DAMAGE PERIOD, HOWEVER, DID ZENITH MAKE AVAILABLE OR OFFER
FOR SALE A SUBSTANTIAL NUMBER OF TELEVISION SETS SUITABLE FOR THE
ENGLISH MARKET OR MAKE ANY OTHER SERIOUS EFFORTS TO ENTER THE MARKET. 
IT ATTAINED NO APPRECIABLE POSITION IN THE ENGLISH TELEVISION MARKET. 

HAVING INITIALLY FOUND THE PATENT POOL RESPONSIBLE OVER THE YEARS
FOR ZENITH'S FAILURE TO PARTICIPATE IN THE ENGLISH MARKET, THE TRIAL
COURT, AFTER FURTHER PROCEEDINGS, HELD THAT A GOVERNMENT EMBARGO, NOT
THE PATENT POOL, WAS THE SOLE REASON FOR ZENITH'S NOT ENTERING THE
ENGLISH MARKET PRIOR TO THE BEGINNING OF THE DAMAGE PERIOD IN 1959;
UNTIL THEN, THE DISTRICT COURT FOUND, THE POOL "(WAS) NOT CALLED UPON
TO EXERCISE THE TYPE OF CONDUCT THAT (IT) EXERCISED IN CANADA."  IT DID
NOT, HOWEVER, RETREAT FROM ITS CONCLUSION THAT RESTRAINTS IMPOSED BY
THE POOL HAD FORECLOSED ZENITH DURING THE DAMAGE PERIOD.  /20/ IN THIS
RESPECT WE AGREE WITH THE COURT OF APPEALS THAT THE TRIAL COURT CLEARLY
ERRED.  BASED ON OUR OWN EXAMINATION OF THE RECORD, WE ARE CONVINCED
THAT EVEN WITH THE ENDING OF THE EMBARGO IN MID-1959, ZENITH FACED
OTHER OBSTACLES WHICH EFFECTIVELY DISCOURAGED ITS ENTRY INTO THE
ENGLISH MARKET AND FOR WHICH THE POOL WAS NOT RESPONSIBLE. 

POSITING THAT ZENITH COULD NOT GET A LICENSE FROM THE ENGLISH POOL
AND THAT IT DID NOT ENTER THE BRITISH MARKET BEFORE OR DURING THE
DAMAGE PERIOD, THE ISSUE IS WHETHER, ONCE THE EMBARGO WAS LIFTED,
ZENITH WANTED AND INTENDED TO ENTER, HAD THE CAPACITY TO DO SO, AND WAS
PREVENTED FROM ENTERING BY ITS INABILITY TO SECURE A PATENT LICENSE AND
BY OTHER OPERATIONS OF THE ENGLISH PATENT POOL.  SECTION 4 OF THE
CLAYTON ACT REQUIRED THAT ZENITH SHOW AN INJURY TO ITS "BUSINESS OR
PROPERTY BY REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS."  IF
ZENITH'S FAILURE TO ENTER THE ENGLISH MARKET WAS ATTRIBUTABLE TO ITS
LACK OF DESIRE, ITS LIMITED PRODUCTION CAPABILITIES, OR TO OTHER
FACTORS INDEPENDENT OF HRI'S UNLAWFUL CONDUCT, ZENITH WOULD NOT HAVE
MET ITS BURDEN UNDER SEC. 4.  /21/ 

ZENITH WAS INTERESTED IN THE ENGLISH MARKET; THIS MUCH IS CLEAR.  BUT
ITS STANDARD DOMESTIC TELEVISION SET WAS MANUFACTURED TO OPERATE ON 525
AND 625-LINE-PER-SECOND SCANNING SIGNALS, WHEREAS THE 405-LINE SIGNAL
WAS STANDARD IN ENGLAND UNTIL AFTER THE DAMAGE PERIOD.  SIMILARLY,
WHILE FM TRANSMISSION WAS UTILIZED IN THE UNITED STATES FOR THE AUDIO
PORTION, AM SIGNALS WERE USED IN ENGLAND.  ZENITH'S REGULAR PRODUCT
THUS WAS NOT SALABLE IN THE ENGLISH MARKET.  TO SUCCEED AT ALL, ZENITH
HAD EITHER TO PRODUCE A DIFFERENTLY EQUIPPED SET OR TO PROVIDE FOR THE
MASS CONVERSION OF ITS STANDARD RECEIVERS.  UNQUESTIONABLY, THE COMPANY
HAD THE FACILITIES AND THE ABILITY TO FOLLOW EITHER COURSE.  BUT IT IS
EQUALLY CLEAR THAT IT PURSUED NEITHER.  /22/  A CHANGE IN THE STANDARD
BRITISH BROADCAST TO INCLUDE A 625-LINE SIGNAL WAS UNDER CONSIDERATION,
EVEN IMMINENT, DURING THE DAMAGE PERIOD.  ZENITH'S MERCHANDISE WOULD IN
ANY EVENT HAVE SOLD AT PRICES SUBSTANTIALLY HIGHER THAN THOSE
PREVAILING IN THE ENGLISH MARKET; TARIFFS AND FREIGHT COSTS TENDED TO
WIDEN THE DIFFERENTIAL.  PRODUCING A NEW SET FOR THE ENGLISH MARKET, OR
MODIFYING EXISTENT MODELS ON A LARGE-SCALE BASIS, WOULD HAVE INVOLVED
SUBSTANTIAL COSTS. 

BASED ON THE EVIDENCE BEFORE US, INCLUDING THE CORRESPONDENCE
BETWEEN ZENITH AND ITS BRITISH REPRESENTATIVE, WE THINK THE COURT OF
APPEALS CORRECTLY REJECTED THE INFERENCE THAT "ZENITH INTENDED TO AND
WAS PREPARED TO ENTER THE ENGLISH TELEVISION MARKET DURING THE DAMAGE
PERIOD," AND CORRECTLY CONCLUDED THAT ZENITH WAS IN FACT "WAITING FOR A
CHANGE IN ENGLISH STANDARDS TO A 625-LINE SYSTEM."  388 F.2D, AT 37. 
IT CLEARLY EMERGES FROM THE EVIDENCE THAT ZENITH HAD EVERY INTENTION TO
PROMOTE THE SALE OF ITS TELEVISION SETS IF AND WHEN THE SIGNAL CHANGE
OCCURRED.  GIVEN THAT EVENT, NEITHER THE ABSENCE OF A POOL LICENSE NOR
POOL THREATS AGAINST IT OR ITS CUSTOMERS WOULD HAVE DETERRED ZENITH
FROM A MAJOR EFFORT TO PENETRATE THE BRITISH MARKET.  WHY THE EXISTENCE
OF THE POOL, WHICH AS FAR AS THE RECORD SHOWS WAS QUIESCENT DURING THE
DAMAGE PERIOD, SHOULD BE CREDITED WITH THE POWER TO DISCOURAGE ZENITH'S
ENTRY BEFORE THE SIGNAL CHANGE BUT NOT AFTER IS DIFFICULT TO GRASP. 
BUT THE QUESTION AT HAND IS NOT WHETHER, IF ZENITH HAD DECIDED TO ENTER
THE MARKET, THE POOL WOULD HAVE BEEN A DETERRENT AND INFLICTED DAMAGE. 
RATHER, IT IS WHETHER ZENITH WAS IN FACT CONSTRAINED BY THE POOL TO
STAY OUT OF ENGLAND DURING THE DAMAGE PERIOD OR WHETHER ZENITH'S OWN
BUSINESS CALCULUS LED IT TO AWAIT MORE FAVORABLE CONDITIONS.  AS WE
HAVE SAID, THE LATTER IS THE ONLY PERMISSIBLE INFERENCE FROM THIS
RECORD. 

3.  THE AUSTRALIAN POOL. 

THE AUSTRALIAN PATENT POOL, WHICH HAD EXCLUSIVE RIGHTS TO LICENSE
HAZELTINE PATENTS, ALSO GRANTED LICENSES ONLY FOR LOCAL MANUFACTURE. 
HAD HRI AND HAZELTINE'S CONSPIRACY WITH THE AUSTRALIAN POOL EFFECTIVELY
KEPT ZENITH FROM THAT MARKET, A COMPENSABLE VIOLATION OF THE ANTITRUST
LAWS UNQUESTIONABLY WOULD HAVE CCURRED.  BUT THE FINDINGS OF THE
DISTRICT COURT ARE WHOLLY SILENT AS TO HOW THE AUSTRALIAN POOL HAD ANY
IMPACT ON ZENITH'S BUSINESS.  AN OFFICER OF ZENITH REVEALED THAT ZENITH
HAD EXPORTED NO PRODUCTS TO AUSTRALIA SINCE THE 1920'S OR EARLY 1930'S.
ZENITH HAD NOT REQUESTED A POOL LICENSE DURING THE 20-YEAR PERIOD
PRECEDING THE TRIAL.  A GOVERNMENT EMBARGO WAS FOUND BY THE DISTRICT
COURT TO HAVE FORECLOSED ZENITH'S AMERICAN-MADE MERCHANDISE UNTIL WELL
INTO THE DAMAGE PERIOD.  HIGH TARIFFS AND SHIPPING COSTS WERE
ADDITIONAL BARRIERS, AS WELL AS THE PROSPECT OF VIGOROUS COMPETITION. 
NOTHING IN THE RECORD BEFORE US WOULD PERMIT THE INFERENCE THAT ZENITH
EITHER INTENDED OR WAS PREPARED TO ENTER THE AUSTRALIAN MARKET DURING
THE DAMAGE PERIOD.  THE COURT OF APPEALS WAS CORRECT IN REVERSING THE
DISTRICT COURT'S AWARD OF DAMAGES WITH RESPECT TO THE AUSTRALIAN
MARKET. 

   B. THE INJUNCTION. 

IN SETTING ASIDE THE DISTRICT COURT'S GRANT OF INJUNCTIVE RELIEF
AGAINST CONTINUED PARTICIPATION BY HRI AND HAZELTINE IN ANY PATENT POOL
OR SIMILAR ASSOCIATION RESTRICTING ZENITH'S EXPORT TRADE, /23/  THE
COURT OF APPEALS STATED, WITHOUT MORE: 

     "IT FOLLOWS FROM OUR CONCLUSION WITH RESPECT TO THE FOREIGN

  PATENT POOLS THAT INJUNCTIVE RELIEF AGAINST 'THREATENED LOSS OR

  DAMAGE' DIRECTED AT THOSE POOLS, ALLEGED BY ZENITH TO BE UNLAWFUL

  CONSPIRACIES, CANNOT BE JUSTIFIED UNDER 15 U.S.C. SEC. 26. 

PARAGRAPH C OF THE INJUNCTION GRANTED MUST BE STRICKEN."  388 F.2D, AT
39. 

THE EVIDENT PREMISE FOR STRIKING PARAGRAPH C WAS THAT ZENITH'S
FAILURE TO PROVE THE FACT OF INJURY BARRED INJUNCTIVE RELIEF AS WELL AS
TREBLE DAMAGES.  THIS WAS UNSOUND, FOR SEC. 16 OF THE CLAYTON ACT, 15
U.S.C. 26, WHICH WAS ENACTED BY THE CONGRESS TO MAKE AVAILABLE
EQUITABLE REMEDIES PREVIOUSLY DENIED PRIVATE PARTIES, INVOKES
TRADITIONAL PRINCIPLES OF EQUITY AND AUTHORIZES INJUNCTIVE RELIEF UPON
THE DEMONSTRATION OF "THREATENED" INJURY.  /24/  THAT REMEDY IS
CHARACTERISTICALLY AVAILABLE EVEN THOUGH THE PLAINTIFF HAS NOT YET
SUFFERED ACTUAL INJURY, SEE BEDFORD CUT STONE CO. V. JOURNEYMEN STONE
CUTTERS' ASSN., 274 U.S. 37, 65-55 (1927); HE NEED ONLY DEMONSTRATE A
SIGNIFICANT THREAT OF INJURY FROM AN IMPENDING VIOLATION OF THE
ANTITRUST LAWS OR FROM A CONTEMPORARY VIOLATION LIKELY TO CONTINUE OR
RECUR.  SEE SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 396 (1905);
BEDFORD CUT STONE CO. V. JOURNEYMEN STONE CUTTERS' ASSN., SUPRA, AT 54;
UNITED STATES V. OREGON STATE MEDICAL SOCIETY, 343 U.S. 326, 333
(1952); UNITED STATES V. W. T. GRANT CO., 345 U.S. 629, 633 (1953). 

MOREOVER, THE PURPOSE OF GIVING PRIVATE PARTIES TREBLE-DAMAGE AND
INJUNCTIVE REMEDIES WAS NOT MERELY TO PROVIDE PRIVATE RELIEF, BUT WAS
TO SERVE AS WELL THE HIGH PURPOSE OF ENFORCING THE ANTITRUST LAWS. 
E.G., UNITED STATES V. BORDEN CO., 347 U.S. 514, 518 (1954).  SECTION
16 SHOULD BE CONSTRUED AND APPLIED WITH THIS PURPOSE IN MIND, AND WITH
THE KNOWLEDGE THAT THE REMEDY IT AFFORDS, LIKE OTHER EQUITABLE
REMEDIES, IS FLEXIBLE AND CAPABLE OF NICE "ADJUSTMENT AND
RECONCILIATION BETWEEN THE PUBLIC INTEREST AND PRIVATE NEEDS AS WELL AS
BETWEEN COMPETING PRIVATE CLAIMS."  HECHT CO. V. BOWLES, 321 U.S. 321,
329-330 (1944).  ITS AVAILABILITY SHOULD BE "CONDITIONED BY THE
NECESSITIES OF THE PUBLIC INTEREST WHICH CONGRESS HAS SOUGHT TO
PROTECT."  ID., AT 330. 

JUDGED BY THE PROPER STANDARD, THE RECORD BEFORE US WARRANTED THE
INJUNCTION WITH RESPECT TO CANADA.  THE FINDINGS OF THE DISTRICT COURT
WERE THAT HRI AND CRPL WERE CONSPIRING TO EXCLUDE ZENITH AND OTHERS
FROM THE CANADIAN MARKET; THERE WAS NOTHING INDICATING THAT THIS CLEAR
VIOLATION OF THE ANTITRUST LAWS HAD TERMINATED OR THAT THE THREAT TO
ZENITH INHERENT IN THE CONDUCT WOULD CEASE IN THE FORESEEABLE FUTURE. 
NEITHER THE RELATIVE QUIESCENCE OF THE POOL DURING THE LITIGATION NOR
CLAIMS THAT OBJECTIONABLE CONDUCT WOULD CEASE WITH THE JUDGMENT NEGATED
THE THREAT TO ZENITH'S FOREIGN TRADE.  /25/  THE THREAT WAS TOO CLEAR
FOR ARGUMENT, AND INJUNCTIVE RELIEF AGAINST HRI WITH RESPECT TO THE
CANADIAN MARKET WAS WHOLLY PROPER. 

WE ALSO REINSTATE THE INJUNCTION ENTERED BY THE DISTRICT COURT
INSOFAR AS IT MORE BROADLY BARRED HRI FROM CONSPIRING WITH OTHERS TO
RESTRICT OR PREVENT ZENITH FROM ENTERING ANY OTHER FOREIGN MARKET.  IN
EXERCISING ITS EQUITABLE JURISDICTION, "(A) FEDERAL COURT HAS BROAD
POWER TO RESTRAIN ACTS WHICH ARE OF THE SAME TYPE OR CLASS AS UNLAWFUL
ACTS WHICH THE COURT HAS FOUND TO HAVE BEEN COMMITTED OR WHOSE
COMMISSION IN THE FUTURE, UNLESS ENJOINED, MAY FAIRLY BE ANTICIPATED
FROM THE DEFENDANT'S CONDUCT IN THE PAST."  NLRB V. EXPRESS PUBLISHING
CO., 312 U.S. 426, 435 (1941).  SEE ALSO UNITED STATES V. NATIONAL LEAD
CO., 332 U.S. 319, 328-335 AND N. 4 (1947).  GIVEN THE FINDINGS THAT
HRI WAS CONSPIRING WITH THE CANADIAN POOL, ITS PURPOSE TO EXCLUDE
ZENITH FROM CANADA AND ITS VIOLATION OF THE SHERMAN ACT WERE CLEARLY
ESTABLISHED.  ITS PROPENSITY FOR ARRANGEMENTS OF THIS SORT WAS ALSO
INDICATED BY THE FINDINGS REVEALING ITS PARTICIPATION IN SIMILAR POOLS
OPERATING IN ENGLAND AND AUSTRALIA.  /26/  ZENITH, A COMPANY INTERESTED
IN EXPANDING ITS FOREIGN COMMERCE AND HAVING SUFFERED AT THE HANDS OF
HRI AND ITS COCONSPIRATORS IN THE CANADIAN MARKET, WAS ENTITLED TO
INJUNCTIVE RELIEF AGAINST LIKE CONDUCT BY HRI IN OTHER WORLD MARKETS. 
WE SEE NO REASON THAT THE FEDERAL COURTS, IN EXERCISING THE TRADITIONAL
EQUITABLE POWERS EXTENDED TO THEM BY SEC. 16, SHOULD NOT RESPOND TO THE
"SALUTARY PRINCIPLE THAT WHEN ONE HAS BEEN FOUND TO HAVE COMMITTED ACTS
IN VIOLATION OF A LAW HE MAY BE RESTRAINED FROM COMMITTING OTHER
RELATED UNLAWFUL ACTS."  NLRB V. EXPRESS PUBLISHING CO., SUPRA, AT
436.  ALTHOUGH A DISTRICT COURT MAY NOT ENJOIN ALL FUTURE ILLEGAL
CONDUCT OF THE DEFENDANT, OR EVEN ALL FUTURE VIOLATIONS OF THE
ANTITRUST LAWS, HOWEVER UNRELATED TO THE VIOLATION FOUND BY THE COURT,
E.G., NEW YORK, N.H. & H.R. CO. V. ICC, 200 U.S. 361, 401 (1906),
"(WHEN THE PURPOSE TO RESTRAIN TRADE APPEARS FROM A CLEAR VIOLATION OF
LAW, IT IS NOT NECESSARY THAT ALL OF THE UNTRAVELED ROADS TO THAT END
BE LEFT OPEN AND THAT ONLY THE WORN ONE BE CLOSED."  INTERNATIONAL SALT
CO. V. UNITED STATES, 332 U.S. 392, 400 (1947).  THIS IS PARTICULARLY
TRUE IN TREBLE-DAMAGE CASES, WHICH ARE BROUGHT FOR PRIVATE ENDS, BUT
WHICH ALSO SERVE THE PUBLIC INTEREST IN THAT "THEY EFFECTIVELY PRY OPEN
TO COMPETITION A MARKET THAT HAS BEEN CLOSED BY DEFENDANTS' ILLEGAL
RESTRAINTS."  ID., AT 401. 

III.  THE PATENT-MISUSE ISSUE. 

SINCE THE DISTRICT COURT'S TREBLE DAMAGE AWARD FOR PATENT MISUSE WAS
AFFIRMED BY THE COURT OF APPEALS, AND HRI HAS NOT CHALLENGED THAT AWARD
IN THIS COURT, THE ONLY MISUSE ISSUE WE NEED CONSIDER AT LENGTH IS
WHETHER THE COURT OF APPEALS WAS CORRECT IN STRIKING THE LAST CLAUSE
FROM PARAGRAPH A OF THE INJUNCTION, /27/  WHICH ENJOINED HRI FROM 

     "A.  CONDITIONING DIRECTLY OR INDIRECTLY THE GRANT OF A
LICENSE

  TO DEFENDANT-COUNTERCLAIMANT, ZENITH RADIO CORPORATION, OR ANY OF

  ITS SUBSIDIARIES, UNDER ANY DOMESTIC PATENT UPON THE TAKING OF A

  LICENSE UNDER ANY OTHER PATENT OR UPON THE PAYING OF ROYALTIES ON

  THE MANUFACTURE, USE OR SALE OF APPARATUS NOT COVERED BY SUCH

  PATENT." 

THIS PARAGRAPH OF THE INJUNCTION WAS DIRECTED AT HRI'S POLICY OF
INSISTING UPON ACCEPTANCE OF ITS STANDARD FIVE-YEAR PACKAGE LICENSE
AGREEMENT, COVERING THE 500-ODD PATENTS WITHIN ITS DOMESTIC LICENSING
PORTFOLIO AND RESERVING ROYALTIES ON THE LICENSEE'S TOTAL RADIO AND
TELEVISION SALES, IRRESPECTIVE OF WHETHER THE LICENSED PATENTS WERE
ACTUALLY USED IN THE PRODUCTS MANUFACTURED.  /28/     IN STRIKING THE
LAST CLAUSE OF PARAGRAPH A THE COURT OF APPEALS, IN EFFECT, MADE TWO
DETERMINATIONS.  FIRST, UNDER ITS VIEW OF AUTOMATIC RADIO MFG. CO. V.
HAZELTINE RESEARCH, INC., 339 U.S. 827 (1950), CONDITIONING THE GRANT
OF A PATENT LICENSE UPON PAYMENT OF ROYALTIES ON UNPATENTED PRODUCTS
WAS NOT MISUSE OF THE PATENT.  SECOND, SINCE SUCH CONDUCT DID NOT
CONSTITUTE PATENT MISUSE, NEITHER COULD IT BE VIOLATIVE OF THE
ANTITRUST LAWS WITHIN THE MEANING OF SEC. 16 OF THE CLAYTON ACT, UNDER
WHICH ZENITH HAD SOUGHT AND THE DISTRICT COURT HAD GRANTED THE
INJUNCTION.  WITH RESPECT TO THE FIRST DETERMINATION, WE REVERSE THE
COURT OF APPEALS.  WE HOLD THAT CONDITIONING THE GRANT OF A PATENT
LICENSE UPON PAYMENT OF ROYALTIES ON PRODUCTS WHICH DO NOT USE THE
TEACHING OF THE PATENT DOES AMOUNT TO PATENT MISUSE. 

THE TRIAL COURT'S INJUNCTION DOES NOT PURPORT TO PREVENT THE PARTIES
FROM SERVING THEIR MUTUAL CONVENIENCE BY BASING ROYALTIES ON THE SALE
OF ALL RADIOS AND TELEVISION SETS, IRRESPECTIVE OF THE USE OF HRI'S
INVENTIONS.  THE INJUNCTION REACHES ONLY SITUATIONS WHERE THE PATENTEE
DIRECTLY OR INDIRECTLY "CONDITIONS" HIS LICENSE UPON THE PAYMENT OF
ROYALTIES ON UNPATENTED PRODUCTS-- THAT IS, WHERE THE PATENTEE REFUSES
TO LICENSE ON ANY OTHER BASIS AND LEAVES THE LICENSEE WITH THE CHOICE
BETWEEN A LICENSE SO PROVIDING AND NO LICENSE AT ALL.  ALSO, THE
INJUNCTION TAKES EFFECT ONLY IF THE LICENSE IS CONDITIONED UPON THE
PAYMENT OF ROYALTIES "ON" MERCHANDISE NOT COVERED BY THE PATENT-- WHERE
THE EXPRESS PROVISIONS OF THE LICENSE OR THEIR NECESSARY EFFECT IS TO
EMPLOY THE PATENT MONOPOLY TO COLLECT ROYALTIES, NOT FOR THE USE OF THE
LICENSED INVENTION, BUT FOR USING, MAKING, OR SELLING AN ARTICLE NOT
WITHIN THE REACH OF THE PATENT. 

A PATENTEE HAS THE EXCLUSIVE RIGHT TO MANUFACTURE, USE, AND SELL HIS
INVENTION.  SEE, E.G., BEMENT V. NATIONAL HARROW CO., 186 U.S. 70, 88
89 (1902).  THE HEART OF HIS LEGAL MONOPOLY IS THE RIGHT TO INVOKE THE
STATE'S POWER TO PREVENT OTHERS FROM UTILIZING HIS DISCOVERY WITHOUT
HIS CONSENT.  SEE, E.G., CONTINENTAL PAPER BAG CO. V. EASTERN PAPER BAG
CO., 210 U.S. 405 (1908); CROWN DIE & TOOL CO. V. NYE TOOL & MACHINE
WORKS, 261 U.S. 24 (1923).  THE LAW ALSO RECOGNIZES THAT HE MAY ASSIGN
TO ANOTHER HIS PATENT, IN WHOLE OR IN PART, AND MAY LICENSE OTHERS TO
PRACTICE HIS INVENTION.  SEE, E.G., WATERMAN V. MACKENZIE, 138 U.S.
252, 255 (1891).  BUT THERE ARE ESTABLISHED LIMITS WHICH THE PATENTEE
MUST NOT EXCEED IN EMPLOYING THE LEVERAGE OF HIS PATENT TO CONTROL OR
LIMIT THE OPERATIONS OF THE LICENSEE.  AMONG OTHER RESTRICTIONS UPON
HIM, HE MAY NOT CONDITION THE RIGHT TO USE HIS PATENT ON THE LICENSEE'S
AGREEMENT TO PURCHASE, USE, OR SELL, OR NOT TO PURCHASE, USE, OR SELL,
ANOTHER ARTICLE OF COMMERCE NOT WITHIN THE SCOPE OF HIS PATENT
MONOPOLY.  E.G., ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436,
455-459 (1940); INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392,
395-396 (1947).  HIS RIGHT TO SET THE PRICE FOR A LICENSE DOES NOT
EXTEND SO FAR, WHATEVER PRIVILEGE HE HAS "TO EXACT ROYALTIES AS HIGH AS
HE CAN NEGOTIATE."  BRULOTTE V. THYS CO., 379 U.S. 29, 33 (1964).  AND
JUST AS THE PATENT'S LEVERAGE MAY NOT BE USED TO EXTRACT FROM THE
LICENSEE A COMMITMENT TO PURCHASE, USE, OR SELL OTHER PRODUCTS
ACCORDING TO THE DESIRES OF THE PATENTEE, NEITHER CAN THAT LEVERAGE BE
USED TO GARNER AS ROYALTIES A PERCENTAGE SHARE OF THE LICENSEE'S
RECEIPTS FROM SALES OF OTHER PRODUCTS; IN EITHER CASE, THE PATENTEE
SEEKS TO EXTEND THE MONOPOLY OF HIS PATENT TO DERIVE A BENEFIT NOT
ATTRIBUTABLE TO USE OF THE PATENT'S TEACHINGS. 

IN BRULOTTE V. THYS CO., SUPRA, THE PATENTEE LICENSED THE USE OF A
PATENTED MACHINE, THE LICENSE PROVIDING FOR THE PAYMENT OF A ROYALTY
FOR USING THE INVENTION AFTER, AS WELL AS BEFORE, THE EXPIRATION DATE
OF THE PATENT.  RECOGNIZING THAT THE PATENTEE COULD LAWFULLY CHARGE A
ROYALTY FOR PRACTICING A PATENTED INVENTION PRIOR TO ITS EXPIRATION
DATE AND THAT THE PAYMENT OF THIS ROYALTY COULD BE POSTPONED BEYOND
THAT TIME, WE NOTED THAT THE POST-EXPIRATION ROYALTIES WERE NOT FOR
PRIOR USE BUT FOR CURRENT USE, AND WERE NOTHING LESS THAN AN EFFORT BY
THE PATENTEE TO EXTEND THE TERM OF HIS MONOPOLY BEYOND THAT GRANTED BY
LAW.  BRULOTTE THUS ARTICULATED IN A PARTICULARIZED CONTEXT THE
PRINCIPLE THAT A PATENTEE MAY NOT USE THE POWER OF HIS PATENT TO LEVY A
CHARGE FOR MAKING, USING, OR SELLING PRODUCTS NOT WITHIN THE REACH OF
THE MONOPOLY GRANTED BY THE GOVERNMENT. 

AUTOMATIC RADIO IS NOT TO THE CONTRARY; IT IS NOT AUTHORITY FOR THE
PROPOSITION THAT PATENTEES HAVE CARTE BLANCHE AUTHORITY TO CONDITION
THE GRANT OF PATENT LICENSES UPON THE PAYMENT OF ROYALTIES ON
UNPATENTED ARTICLES.  IN THAT CASE, AUTOMATIC RADIO ACQUIRED THE
PRIVILEGE OF USING ALL PRESENT AND FUTURE HRI PATENTS BY PROMISING TO
PAY A PERCENTAGE ROYALTY BASED ON THE SELLING PRICE OF ITS RADIO
RECEIVERS, WITH A MINIMUM ROYALTY OF $10,000 PER YEAR.  HRI SUED FOR
THE MINIMUM ROYALTY AND OTHER SUMS.  AUTOMATIC RADIO ASSERTED PATENT
MISUSE IN THAT THE AGREEMENT EXTRACTED ROYALTIES WHETHER OR NOT ANY OF
THE PATENTS WERE IN ANY WAY USED IN AUTOMATIC RADIO RECEIVERS.  THE
DISTRICT COURT AND THE COURT OF APPEALS APPROVED THE AGREEMENT AS A
CONVENIENT METHOD DESIGNED BY THE PARTIES TO AVOID DETERMINING WHETHER
EACH RADIO RECEIVER EMBODIED AN HRI PATENT.  THE PERCENTAGE ROYALTY WAS
DEEMED AN ACCEPTABLE ALTERNATIVE TO A LUMP-SUM PAYMENT FOR THE
PRIVILEGE TO USE THE PATENTS.  THIS COURT AFFIRMED. 

FINDING THE TIE-IN CASES SUCH AS INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392 (1947), INAPPOSITE, AND DISTINGUISHING UNITED
STATES V. UNITED STATES GYPSUM CO., 333 U.S. 364 (1948), AS INVOLVING A
CONSPIRACY BETWEEN PATENTEE AND LICENSEES TO ELIMINATE COMPETITION, THE
COURT CONSIDERED REASONABLE THE "PAYMENT OF ROYALTIES ACCORDING TO AN
AGREED PERCENTAGE OF THE LICENSEE'S SALES," SINCE "(SOUND BUSINESS
JUDGMENT COULD INDICATE THAT SUCH PAYMENT REPRESENTS THE MOST
CONVENIENT METHOD OF FIXING THE BUSINESS VALUE OF THE PRIVILEGES
GRANTED BY THE LICENSING AGREEMENT."  339 U.S.,AT 834.  IT FOUND
NOTHING "INHERENT" IN SUCH A ROYALTY PROVISION WHICH WOULD EXTEND THE
PATENT MONOPOLY.  FINALLY, THE HOLDING BY THE COURT WAS STATED TO BE
THAT IN LICENSING THE USE OF PATENTS "IT IS NOT PER SE A MISUSE OF
PATENTS TO MEASURE THE CONSIDERATION BY A PERCENTAGE OF THE LICENSEE'S
SALES."  IBID. 

NOTHING IN THE FOREGOING IS INCONSISTENT WITH THE DISTRICT COURT'S
INJUNCTION AGAINST CONDITIONING A LICENSE UPON THE PAYMENT OF ROYALTIES
ON UNPATENTED PRODUCTS OR WITH THE PRINCIPLE THAT PATENT LEVERAGE MAY
NOT BE EMPLOYED TO COLLECT ROYALTIES FOR PRODUCING MERCHANDISE NOT
EMPLOYING THE PATENTED INVENTION.  THE COURT'S OPINION IN AUTOMATIC
RADIO DID NOT DEAL WITH THE LICENSE NEGOTIATIONS WHICH SPAWNED THE
ROYALTY FORMULA AT ISSUE AND DID NOT INDICATE THAT HRI USED ITS PATENT
LEVERAGE TO COERCE A PROMISE TO PAY ROYALTIES ON RADIOS NOT PRACTICING
THE LEARNING OF THE PATENT.  NO SUCH INFERENCE FOLLOWS FROM A MERE
LICENSE PROVISION MEASURING ROYALTIES BY THE LICENSEE'S TOTAL SALES
EVEN IF, AS THINGS WORK OUT, ONLY SOME OR NONE OF THE MERCHANDISE
EMPLOYS THE PATENTED IDEA OR PROCESS, OR EVEN IF IT WAS FORESEEABLE
THAT SOME UNDETERMINED PORTION WOULD NOT CONTAIN THE INVENTION.  IT
COULD EASILY BE, AS THE COURT INDICATED IN AUTOMATIC RADIO, THAT THE
LICENSEE AS WELL AS THE PATENTEE WOULD FIND IT MORE CONVENIENT AND
EFFICIENT FROM SEVERAL STANDPOINTS TO BASE ROYALTIES ON TOTAL SALES
THAN TO FACE THE BURDEN OF FIGURING ROYALTIES BASED ON ACTUAL USE. 
/29/  IF CONVENIENCE OF THE PARTIES RATHER THAN PATENT POWER DICTATES
THE TOTAL-SALES ROYALTY PROVISION, THERE ARE NO MISUSE OF THE PATENTS
AND NO FORBIDDEN CONDITIONS ATTACHED TO THE LICENSE. 

THE COURT ALSO SAID IN AUTOMATIC RADIO THAT IF THE LICENSEE BARGAINS
FOR THE PRIVILEGE OF USING THE PATENT IN ALL OF HIS PRODUCTS AND AGREES
TO A LUMP SUM OR A PERCENTAGE-OF-TOTAL-SALES ROYALTY, HE CANNOT ESCAPE
PAYMENT ON THIS BASIS BY DEMONSTRATING THAT HE IS NO LONGER USING THE
INVENTION DISCLOSED BY THE PATENT.  WE NEITHER DISAGREE NOR THINK SUCH
TRANSACTIONS ARE BARRED BY THE TRIAL COURT'S INJUNCTION.  IF THE
LICENSEE NEGOTIATES FOR "THE PRIVILEGE TO USE ANY OR ALL OF THE PATENTS
AND DEVELOPMENTS AS (HE) DESIRES) TO USE THEM," 339 U.S.,AT 834, HE
CANNOT COMPLAIN THAT HE MUST PAY ROYALTIES IF HE CHOOSES TO USE NONE OF
THEM.  HE COULD NOT THEN CHARGE THAT THE PATENTEE HAD REFUSED TO
LICENSE EXCEPT ON THE BASIS OF A TOTAL-SALES ROYALTY. 

BUT WE DO NOT READ AUTOMATIC RADIO TO AUTHORIZE THE PATENTEE TO USE
THE POWER OF HIS PATENT TO INSIST ON A TOTAL-SALES ROYALTY AND TO
OVERRIDE PROTESTATIONS OF THE LICENSEE THAT SOME OF HIS PRODUCTS ARE
UNSUITED TO THE PATENT OR THAT FOR SOME LINES OF HIS MERCHANDISE HE HAS
NO NEED OR DESIRE TO PURCHASE THE PRIVILEGES OF THE PATENT.  IN SUCH
EVENT, NOT ONLY WOULD ROYALTIES BE COLLECTED ON UNPATENTED MERCHANDISE,
BUT THE OBLIGATION TO PAY FOR NONUSE WOULD CLEARLY HAVE ITS SOURCE IN
THE LEVERAGE OF THE PATENT. 

WE ALSO THINK PATENT MISUSE INHERES IN A PATENTEE'S INSISTENCE ON A
PERCENTAGE-OF-SALES ROYALTY, REGARDLESS OF USE, AND HIS REJECTION OF
LICENSEE PROPOSALS TO PAY ONLY FOR ACTUAL USE.  UNQUESTIONABLY, A
LICENSEE MUST PAY IF HE USES THE PATENT.  EQUALLY, HOWEVER, HE MAY
INSIST UPON PAYING ONLY FOR USE, AND NOT ON THE BASIS OF TOTAL SALES,
INCLUDING PRODUCTS IN WHICH HE MAY USE A COMPETING PATENT OR IN WHICH
NO PATENTED IDEAS ARE USED AT ALL.  THERE IS NOTHING IN THE RIGHT
GRANTED THE PATENTEE TO KEEP OTHERS FROM USING, SELLING, OR
MANUFACTURING HIS INVENTION WHICH EMPOWERS HIM TO INSIST ON PAYMENT NOT
ONLY FOR USE BUT ALSO FOR PRODUCING PRODUCTS WHICH DO NOT EMPLOY HIS
DISCOVERIES AT ALL. 

OF COURSE, A LICENSEE CANNOT EXPECT TO OBTAIN A LICENSE, GIVING HIM
THE PRIVILEGE OF USE AND INSURANCE AGAINST INFRINGEMENT SUITS, WITHOUT
AT LEAST FOOTING THE PATENTEE'S EXPENSES IN DEALING WITH HIM.  HE
CANNOT INSIST UPON PAYING ON USE ALONE AND PERHAPS, AS THINGS TURN OUT,
PAY ABSOLUTELY NOTHING BECAUSE HE FINDS HE CAN PRODUCE WITHOUT USING
THE PATENT.  IF THE RISKS OF INFRINGEMENT ARE REAL AND HE WOULD AVOID
THEM, HE MUST ANTICIPATE SOME MINIMUM CHARGE FOR THE LICENSE-- ENOUGH
TO INSURE THE PATENTEE AGAINST LOSS IN NEGOTIATING AND ADMINISTERING
HIS MONOPOLY, EVEN IF IN FACT THE PATENT IS NOT USED AT ALL.  BUT WE
DISCERN NO BASIS IN THE STATUTORY MONOPOLY GRANTED THE PATENTEE FOR HIS
USING THAT MONOPOLY TO COERCE AN AGREEMENT TO PAY A PERCENTAGE ROYALTY
ON MERCHANDISE NOT EMPLOYING THE DISCOVERY WHICH THE CLAIMS OF THE
PATENT DEFINE. 

ALTHOUGH WE HAVE CONCLUDED THAT AUTOMATIC RADIO DOES NOT FORECLOSE
THE INJUNCTION ENTERED BY THE DISTRICT COURT, IT DOES NOT FOLLOW THAT
THE INJUNCTION WAS OTHERWISE PROPER.  WHETHER THE TRIAL COURT CORRECTLY
DETERMINED THAT HRI WAS CONDITIONING THE GRANT OF PATENT LICENSES UPON
THE PAYMENT OF ROYALTIES ON UNPATENTED PRODUCTS HAS NOT YET BEEN
DETERMINED BY THE COURT OF APPEALS.  AND IF THERE WAS SUCH PATENT
MISUSE, IT DOES NOT NECESSARILY FOLLOW THAT THE MISUSE EMBODIES THE
INGREDIENTS OF A VIOLATION OF EITHER SEC. 1 OR SEC. 2 OF THE SHERMAN
ACT, OR THAT ZENITH WAS THREATENED BY A VIOLATION SO AS TO ENTITLE IT
TO AN INJUNCTION UNDER SEC. 16 OF THE CLAYTON ACT.  SEE, E.G., MORTON
SALT CO. V. G. S. SUPPIGER CO., 314 U.S. 488, 490 (1942); TRANSPARENT
WRAP MACHINE CORP. V. STOKES & SMITH CO., 329 U.S. 637, 641 (1947);
LAITRAM CORP. V. KING CRAB, INC., 245 F.SUPP.  1019 (D.C. ALASKA
1965).  SEE ALSO REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO
STUDY THE ANTITRUST LAWS 254 (1955); R. NORDHAUS & E. JUROW, PATENT
ANTITRUST LAW 122-123 (1961); FROST, PATENT MISUSE AS A PER SE
ANTITRUST VIOLATION, IN CONFERENCE ON THE ANTITRUST LAWS AND THE
ATTORNEY GENERAL'S COMMITTEE REPORT 113-123 (J. RAHL & E. ZAIDINS ED.,
1955).  CF. STAFF OF ANTITRUST SUBCOMMITTEE OF HOUSE COMMITTEE ON THE
JUDICIARY, 84TH CONG.,2D SESS.,ANTITRUST PROBLEMS IN THE EXPLOITATION
OF PATENTS 23 (COMM. PRINT.  1956); SCHUELLER, THE NEW ANTITRUST
ILLEGALITY PER SE:  FORESTALLING AND PATENT MISUSE, 50 COL.L.REV.  170,
184-200 (1950).  WHETHER THE FINDINGS AND THE EVIDENCE ARE SUFFICIENT
TO MAKE OUT AN ACTUAL OR THREATENED VIOLATION OF THE ANTITRUST LAWS SO
AS TO JUSTIFY THE INJUNCTION ISSUED BY THE DISTRICT COURT HAS NOT BEEN
CONSIDERED BY THE COURT OF APPEALS, AND WE LEAVE THE MATTER TO BE DEALT
WITH BY THAT COURT IN THE FIRST INSTANCE. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN
PART AND REVERSED IN PART, AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  IN ITS INITIAL FINDINGS, HANDED DOWN ON JANUARY 25, 1965, 239
F.SUPP.,AT 76, THE DISTRICT COURT CONCLUDED THAT ZENITH HAD SUFFERED
ACTUAL DAMAGES OF $16,238872 AS A RESULT OF THE RESTRAINTS IMPOSED BY
THE THREE POOLS UPON ZENITH'S EXPORT BUSINESS DURING THE FOUR-YEAR
DAMAGE PERIOD:  (TABLE OMITTED) 

ON APRIL 5, 1965, THE DISTRICT COURT ENTERED PARTIAL JUDGMENT,
AWARDING ZENITH TREBLE DAMAGES FOR PATENT MISUSE AND TREBLE DAMAGES
WITH RESPECT TO CANADA, BUT RESERVING JURISDICTION FOR FURTHER HEARINGS
ON DAMAGES IN THE ENGLISH AND AUSTRALIAN MARKETS.  THE FURTHER
PROCEEDINGS WERE HELD IN OCTOBER AND NOVEMBER 1965, AFTER WHICH THE
DISTRICT COURT AMENDED ITS FINDINGS ON DAMAGES FOR ENGLAND AND
AUSTRALIA:  (TABLE OMITTED) 

THE REVISIONS REFLECT THE PROOF SUBMITTED AT THE FURTHER
PROCEEDINGS, SHOWING THAT GOVERNMENT EMBARGOES IN ENGLAND AND
AUSTRALIA, IN EFFECT UNTIL 1959 AND 1960 RESPECTIVELY, PRECLUDED ENTRY
BY ZENITH INTO THE ENGLISH AND AUSTRALIAN MARKETS.  THE DISTRICT COURT
FOUND, WITH RESPECT TO ENGLAND, THAT BECAUSE OF THE EMBARGOES, ZENITH'S
DAMAGES WERE ZERO FOR THE FIRST YEAR OF THE DAMAGE PERIOD, 50% OF THE
FIGURE INITIALLY ACCEPTED BY THE COURT FOR THE SECOND YEAR, 75% FOR THE
THIRD, AND 100% FOR THE FOURTH.  WITH RESPECT TO AUSTRALIA, THE
DISTRICT COURT ADOPTED A SIMILAR 0-50-75-100% REVISION OF THE ORIGINAL
FIGURES USED BY THE COURT IN COMPUTING THE DAMAGE FINDINGS OF JANUARY
25, 1965.     /2/  THE RECORD DISCLOSES THAT ZENITH, HRI, AND THE
COURTS BELOW ALL CONSIDERED THE DAMAGE PERIOD TO BE THE FOUR YEARS
PRIOR TO THE DATE ON WHICH ZENITH FILED ITS COUNTERCLAIM.  NO ARGUMENT
WAS MADE THAT THE COUNTERCLAIM, IN WHOLE OR IN PART, RELATED BACK TO AN
EARLIER PLEADING, THEREBY EXPANDING THE DAMAGE PERIOD TO INCLUDE YEARS
PRIOR TO 1959.  CF. BULL V. UNITED STATES, 295 U.S. 247, 262 AND N. 10
(1935); COLD METAL PROCESS CO. V. E. W. BLISS CO., 285 F.2D 231 (C.A.
6TH CIR. 1960), CERT. DENIED, 366 U.S. 911 (1961).  CF. FED. RULE CIV.
PROC. 15(C) (AMENDED PLEADING RELATES BACK TO DATE OF ORIGINAL PLEADING
IF THE "CLAIM OR DEFENSE ASSERTED IN THE AMENDED PLEADING AROSE OUT OF
THE CONDUCT, TRANSACTION, OR OCCURRENCE SET FORTH OR ATTEMPTED TO BE
SET FORTH IN THE ORIGINAL PLEADING"). 

/3/  DURING THE PROCEEDINGS BEFORE THE DISTRICT COURT ON APRIL 2,
1965, THE TRIAL JUDGE NOTED: "WELL, OF COURSE, HAZELTINE CORPORATION
WASN'T A PARTY TO THE LAWSUIT."  THE COURT'S RELIANCE UPON THE
STIPULATION AS A BASIS FOR ITS DECISION TO ENTER JUDGMENT AGAINST
HAZELTINE AS WELL AS HRI IS REFLECTED BY THE INTERCHANGES BETWEEN THE
COURT AND COUNSEL FOR HAZELTINE DURING THOSE PROCEEDINGS.  AN EXAMPLE
IS THE FOLLOWING: 

"MR. KAYSER (COUNSEL FOR HAZELTINE):  . . . COULD ANYONE REALLY
BELIEVE FOR A MINUTE THAT IF HE HAD ANY THOUGHT OF BRINGING THE PARENT
INTO THIS LAWSUIT THAT HE WOULD NOT HAVE NAMED THEM AND THAT HE WOULD
BE RELYING ON THIS STIPULATION WHICH WAS INTENDED TO SIMPLIFY AND
EXPEDITE THE TRIAL?  WOULD ANY LAWYER WHO HAS BEEN PRACTICING FOR TWO
YEARS EXPECT TO HOLD SOMEBODY LIABLE ON A JUDGMENT WHEN HE DIDN'T EVEN
NAME THEM?  HE RELIED ON SOME PRETRIAL STIPULATION. 

"THE COURT:  YOU MEAN THAT PRETRIAL STIPULATIONS ARE WORTHLESS?" 

/4/  THERE IS SOME INDICATION THAT THE GENESIS OF THE STIPULATION
WAS A PRETRIAL CONFERENCE, WHEN A QUESTION WAS RAISED AS TO WHETHER OR
NOT A SUBPOENA SERVED UPON HRI COULD REACH CERTAIN RECORDS OF HAZELTINE
RELATING TO THE LATTER'S FOREIGN PATENTS.  HAZELTINE, OF COURSE, ARGUES
THAT THE STIPULATION'S ONLY PURPOSE AND EFFECT WERE TO FACILITATE
DISCOVERY AND TRIAL BY OBVIATING THE NECESSITY OF LITIGATING WHETHER OR
NOT ZENITH COULD "PIERCE THE CORPORATE VEIL" BETWEEN HRI AND ITS
PARENT. 

/5/  IN ITS BRIEF IN THIS COURT, ZENITH SEEMS TO ARGUE THAT
HAZELTINE IS ESTOPPED TO DENY THAT IT IS BOUND BY THE STIPULATION.  NOT
ONLY WAS HRI'S COUNSEL, DODDS, AN OFFICER OF HAZELTINE, BUT ALSO
RUESTOW AND WESTERMANN, HAZELTINE'S GENERAL PATENT COUNSEL AND GENERAL
COUNSEL, WERE PRESENT DURING TRIAL AND FAILED TO "REPUDIATE" THE
CONSTRUCTION ALLEGEDLY GIVEN THE STIPULATION BY THE PARTIES AT TRIAL TO
THE EFFECT THAT IT BOUND HAZELTINE TO ANY ADJUDICATION ON THE
COUNTERCLAIM.  WE FIND THIS THEORY UNTENABLE ON THE RECORD OF THIS
CASE, FOR THE REFERENCES DURING TRIAL TO THE STIPULATION ARE EQUALLY
CONSISTENT WITH THE INTERPRETATION ADVANCED BY HAZELTINE THAT THE
STIPULATION MERELY ELIMINATED THE NECESSITY FOR ZENITH TO PERFORM THE
TIME-CONSUMING TASK OF PIERCING THE CORPORATE VEIL IN PROVING ITS
COUNTERCLAIM AGAINST HRI.  ALSO, RUESTOW AND WESTERMANN WERE CALLED AS
WITNESSES DURING TRIAL, AND ASSUMING THEY WERE PRESENT THROUGHOUT THE
TRIAL-- A FACT WHICH IS NEITHER PROVED NOR DISPROVED BY THE RECORD--
THEIR FAILURE TO REPUDIATE ZENITH'S PROPOSED CONSTRUCTION OF THE
STIPULATION IS ENTIRELY CONSISTENT WITH THE PROPOSITION THAT THEY WERE
PRESENT ONLY AS WITNESSES, AND NOT AS AUTHORIZED REPRESENTATIVES FOR A
PERSON WHO MIGHT BE BOUND BY THE LITIGATION. 

/6/  JUST AS THE ALTER EGO ISSUE WAS NOT LITIGATED AFTER HAZELTINE
HAD MADE ITS SPECIAL APPEARANCE AND WHILE IT HAD AN OPPORTUNITY TO BE
HEARD, SEE SUPRA, AT 111, SO THE DISTRICT COURT EVIDENTLY DID NOT RELY
UPON ANYTHING MORE THAN THE STIPULATION AS A BASIS FOR ENTERING THE
INJUNCTION AGAINST HAZELTINE AS WELL AS HRI.  THE RECORD DOES NOT
SUPPORT THE CONTENTION, IMPLICIT IN ZENITH'S BRIEF, THAT WHEN HAZELTINE
APPEARED TO CONTEST JURISDICTION IT WAS FOUND BY THE DISTRICT COURT TO
BE "IN ACTIVE CONCERT OF PARTICIPATION" WITH HRI AND THAT, BY ENTERING
ITS SPECIAL APPEARANCE, HAZELTINE CONSENTED TO BE BOUND BY SUCH A
FINDING.  SEE GENERALLY DOBBS, THE VALIDATION OF VOID JUDGMENTS:  THE
BOOTSTRAP PRINCIPLE (TS. 1 AND 2), 53 VA.L.REV.  1003, 1241 (1967). 

/7/  ALTHOUGH HRI AND HAZELTINE WERE NOT PARTIES TO THIS PRIOR
LITIGATION AND DID NOT ENTER THE SETTLEMENT AGREEMENT, HRI URGED THAT
ALL JOINT TORTFEASORS, INCLUDING HRI AND HAZELTINE, WERE RELEASED FROM
LIABILITY FOR INJURIES FLOWING FROM THE PRE-SETTLEMENT ACTS OF THE
POOLS.  THE 1957 RELEASE APPEARS TO BE RELEVANT ONLY TO ZENITH'S CLAIM
FOR INJURY TO ITS CANADIAN TRADE; THE EMBARGOES IN ENGLAND AND
AUSTRALIA WERE THOUGHT BY THE DISTRICT COURT TO PRECLUDE ANY INJURY
FROM ACTS OF THE ENGLISH AND AUSTRALIAN POOLS, AND THE EMBARGOES WERE
NOT LIFTED UNTIL WELL AFTER THE SETTLEMENT WAS EXECUTED. 

/8/  THE COURT OF APPEALS DID NOT DISTURB, NOR DO WE, THE FINDINGS
OF THE DISTRICT COURT THAT HRI AND HAZELTINE CONSPIRED WITH THE
CANADIAN POOL TO DENY PATENT LICENSES TO COMPANIES SEEKING TO EXPORT
AMERICAN-MADE GOODS TO CANADA.  ACCEPTING THESE FINDINGS, WE HAVE NO
DOUBT THAT THE SHERMAN ACT WAS VIOLATED.  SEE, E.G., TIMKEN ROLLER
BEARING CO. V. UNITED STATES, 341 U.S. 593, 599 (1951); CONTINENTAL ORE
CO. V. UNION CARBIDE & CARBON CORP., 370 U.S. 690, 704 (1962).  ONCE
ZENITH DEMONSTRATED THAT ITS EXPORTS FROM THE UNITED STATES HAD BEEN
RESTRAINED BY POOL ACTIVITIES, THE TREBLE-DAMAGE LIABILITY OF THE
DOMESTIC COMPANY PARTICIPATING IN THE CONSPIRACY WAS BEYOND QUESTION. 
CONTINENTAL ORE CO. V. UNION CARBIDE & CARBON CORP., SUPRA.  CF.
AMERICAN BANANA CO. V. UNITED FRUIT CO., 213 U.S. 347 (1909); UNITED
STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 443 (C.A. 2D CIR.
1945).  ALTHOUGH PATENT RIGHTS ARE HERE INVOLVED, THE SAME CONCLUSIONS
FOLLOW.  SEE, FOR EXAMPLE, UNITED STATES V. LINE MATERIAL CO., 333 U.S.
287, 305-315 (1948); UNITED STATES V. SINGER MFG. CO., 374 U.S. 174,
196-197 (1963). 

/9/  ZENITH'S BURDEN OF PROVING THE FACT OF DAMAGE UNDER SEC. 4 OF
THE CLAYTON ACT IS SATISFIED BY ITS PROOF OF SOME DAMAGE FLOWING FROM
THE UNLAWFUL CONSPIRACY; INQUIRY BEYOND THIS MINIMUM POINT GOES ONLY TO
THE AMOUNT AND NOT THE FACT OF DAMAGE.  IT IS ENOUGH THAT THE
ILLEGALITY IS SHOWN TO BE A MATERIAL CAUSE OF THE INJURY; A PLAINTIFF
NEED NOT EXHAUST ALL POSSIBLE ALTERNATIVE SOURCES OF INJURY IN
FULFILLING HIS BURDEN OF PROVING COMPENSABLE INJURY UNDER SEC. 4. 
CONTINENTAL ORE CO. V. UNION CARBIDE & CARBON CORP., SUPRA, AT 702
(1962); PERMA LIFE MUFFLERS, INC. V. INTERNATIONAL PARTS CORP., 392
U.S. 134, 143-144 (1968) (CONCURRING OPINION). 

/10/  ZENITH'S ANTITRUST CLAIM WAS ASSERTED AS A COUNTERCLAIM IN A
PATENT INFRINGEMENT SUIT BROUGHT BY RCA AGAINST ZENITH AND ITS
SUBSIDIARY, THE RAULAND CORPORATION. 

/11/  THE COMPUTATION OF DAMAGES, PREPARED BY ZENITH'S EXPERTS AND
ACCEPTED BY THE DISTRICT COURT, SEE 239 F.SUPP.,AT 76, REFLECTS A
COMPARISON BETWEEN ZENITH'S PERCENTAGE SHARE OF THE UNITED STATES
TELEVISION MARKET, RANGING FROM 15.6% IN 1959 TO 21.7% IN 1963, AND
ZENITH'S ACTUAL SHARE OF THE CANADIAN MARKET DURING THE SAME PERIOD,
RANGING FROM 3.1% IN 1959 TO 5.2% IN 1961 AND DOWN TO 3.2% IN 1963. 
ALTHOUGH WE DISCUSS ONLY THE MEASURE OF DAMAGES UTILIZED FOR COMPUTING
ZENITH'S INJURY IN THE CANADIAN TELEVISION MARKET, A COMPARABLE METHOD
WAS EMPLOYED TO DETERMINE ZENITH'S LOST RADIO SALES. 

/12/  ON NOVEMBER 22, 1965, DURING THE FURTHER PROCEEDINGS HELD TO
CONSIDER DAMAGES FOR ENGLAND AND AUSTRALIA, ZENITH'S EXECUTIVE VICE
PRESIDENT AND TREASURER, KAPLAN, TESTIFIED: 

"IN CANADA, OUR ASSUMPTION WAS THAT WE COMMENCED THE PERIOD STARTING
JUNE 1, 1959 AS IF WE HAD A FULL BLOWN ORGANIZATION, AND HAD ENJOYED
THE BENEFITS OF DOING BUSINESS THERE FOR YEARS PRIOR TO THAT DATE." 

/13/  HRI'S ANSWER TO ZENITH'S COUNTERCLAIM DID NOT PLEAD A STATUTE
OF LIMITATIONS DEFENSE.  HOWEVER, IN THE COURSE OF PROCEEDINGS AFTER
ENTRY OF THE DISTRICT COURT'S INITIAL FINDINGS OF FACT AND CONCLUSIONS
OF LAW, BUT BEFORE JUDGMENT, THE TRIAL COURT GRANTED THE ORAL MOTION OF
HRI'S NEW COUNSEL FOR "LEAVE TO FILE" DEFENSES BASED ON THE STATUTE OF
LIMITATIONS AND ON THE RELEASE GIVEN BY ZENITH PURSUANT TO THE 1957
SETTLEMENT AGREEMENT.  THE THRUST OF THE FORMER WAS PRIMARILY THAT THE
FINDINGS AS TO CANADA HAD ERRONEOUSLY INCLUDED DAMAGES RESULTING FROM
CONDUCT OCCURRING PRIOR TO MAY 22, 1959.  THE TRIAL COURT, WITHOUT
FURTHER MENTION OF THESE DEFENSES, FORTHWITH REFUSED TO SET ASIDE OR
AMEND THE DAMAGE AWARD AS TO CANADA, THUS EITHER REJECTING THE STATUTE
OF LIMITATIONS DEFENSE OR CONSIDERING IT TO HAVE BEEN WAIVED UNDER FED.
RULE CIV. PROC. 12(H), AS URGED BY ZENITH IN BOTH THE DISTRICT COURT
AND THE COURT OF APPEALS. 

ZENITH ITSELF HAD REQUESTED DAMAGES ONLY FOR THE FOUR-YEAR PERIOD
PRIOR TO THE FILING OF ITS COUNTERCLAIM, AND THE FINDINGS OF THE
DISTRICT COURT EXPRESSLY LIMITED THE DAMAGES AWARDED TO THOSE OCCURRING
"DURING THE 4-YEAR STATUTORY DAMAGE PERIOD."  239 F.SUPP.,AT 76.  THE
COURT OF APPEALS, ALTHOUGH NOT PURPORTING TO PASS ON THE STATUTE OF
LIMITATIONS DEFENSE, REFERRED TO THE "FOUR YEAR DAMAGE PERIOD" AND
IDENTIFIED IT AS "(FOUR YEARS PRIOR TO THE MAY 22, 1963, FILING DATE OF
ZENITH'S COUNTERCLAIM.  15 U.S.C. SEC. 15B."  388 F.2D, AT 35 AND N.
4.  THE PARTIES HAVE NOT ARGUED THE MATTER HERE, AND WE MAKE NO FURTHER
EFFORT TO PENETRATE THE CONFUSION SURROUNDING THIS ISSUE OR TO DEAL
WITH THE QUESTION OF WHETHER DAMAGE PERIOD INJURY FROM PRE-DAMAGE
PERIOD CONDUCT IS RECOVERABLE WHERE AN UNWAIVED STATUTE OF LIMITATIONS
DEFENSE IS PROPERLY ASSERTED. 

/14/  ON APRIL 1, 1965, DURING THE FURTHER PROCEEDINGS HELD BY THE
DISTRICT COURT BEFORE JUDGMENT, COUNSEL FOR HRI STATED: 

"NOW, WHAT (COUNSEL FOR ZENITH) IS REALLY TRYING TO SELL THIS COURT
IS THE IDEA THAT IF HE CAN SHOW THAT THESE POOLS CONTINUED AFTER 1957
AND, AS HE DEFINES THE POOLS, YES, YES, THEY DID.  THERE IS NO QUESTION
ABOUT IT, THAT THESE ARRANGEMENTS IN RELATION TO PATENTS-- THAT
CHARACTERIZED NECESSARILY AS HE CHARACTERIZES THEM, BUT THAT THESE
ARRANGEMENTS HAVE CONTINUED AND, SO FAR AS I KNOW, ARE IN EXISTENCE
TODAY.  THERE IS NO QUESTION ABOUT THAT." 

HRI DOES CONTEND, HOWEVER, THAT THE TIES BETWEEN THE CANADIAN POOL
AND THE HAZELTINE COMPANIES WERE BROKEN IN DECEMBER 1965, WHEN
HAZELTINE SECURED AN EARLY TERMINATION OF ITS LICENSING AGREEMENT WITH
CRPL.  SEE N. 25, INFRA. 

/15/  THAT ZENITH FAILED TO MAKE A FORMAL REQUEST FOR A CRPL LICENSE
DURING THE DAMAGE PERIOD CAN PROPERLY BE ATTRIBUTED TO ZENITH'S
RECOGNITION THAT SUCH A REQUEST WOULD HAVE BEEN FUTILE.  THE POOL HAD
MADE ITS POSITION ENTIRELY CLEAR, AND UNDER THESE CIRCUMSTANCES THE
ABSENCE OF A FORMAL REQUEST IS NOT FATAL TO ZENITH'S CASE.  SEE
CONTINENTAL ORE CO. V. UNION CARBIDE & CARBON CORP., 370 U.S. 690, 699
702 (1962); HANOVER SHOE, INC. V. UNITED SHOE MACHINERY CORP., 392 U.S.
481, 487, N. 5 (1968). 

/16/  IN 1960, THE REPORT OF THE ROYAL COMMISSION ON PATENTS,
COPYRIGHT AND INDUSTRIAL DESIGNS WAS PUBLISHED.  THIS REPORT DESCRIBED
THE MAGNITUDE OF THE RISK TAKEN BY ZENITH AND ITS DISTRIBUTORS IN
SELLING IMPORTED PRODUCTS IN CANADA: 

"THE PORTFOLIO IN RESPECT OF WHICH CRPL HAD THE RIGHT TO GRANT
LICENCES CONSISTED OF 5,000 PATENTS, AND IN THE ABSENCE OF A LICENCE
FROM CRPL IT IS DOUBTFUL IF ANYONE COULD SELL IN CANADA A RADIO OR
TELEVISION RECEIVER. 

"CRPL INDICATED THAT IT DOES NOT GRANT A LICENCE TO ANY IMPORTER OF
RADIO OR TELEVISION RECEIVERS.  . . . IT IS PARTICULARLY IN RESPECT OF
THE POLICY OF CRPL IN PRECLUDING IMPORTERS FROM BRINGING INTO CANADA
RADIO AND TELEVISION RECEIVERS THAT THE COMPLAINT WAS MADE TO THIS
COMMISSION. 

"IT WAS STATED TO BE THE POLICY OF CRPL TO ENFORCE ITS PATENT RIGHTS
AGAINST ANY PERSON WHO SELLS IN CANADA AN IMPORTED RADIO OR TELEVISION
RECEIVER WHICH INFRINGES ANY ONE OR MORE OF THE PATENTS IN ITS
PORTFOLIO . . . . " 

/17/  THIS LETTER, BROUGHT TO ZENITH'S ATTENTION BY AN EX-ZENITH
DEALER, WARNED THE MOTOROLA DEALER THAT HIS IMPORTATION OF AMERICAN
MADE TELEVISION SETS AND FM RADIOS PROBABLY INFRINGED POOL PATENTS. 
THE DEALER NOT ONLY WAS CAUTIONED THAT CRPL REMAINED WILLING TO
LITIGATE INFRINGEMENTS, DESCRIBING TWO RECENT AND SUCCESSFUL SUITS, BUT
ALSO WAS REMINDED OF CRPL'S POLICY AGAINST LICENSING IMPORTS: 

"IN CLOSING, I WISH TO INFORM YOU THAT WE WOULD BE MOST HAPPY TO
ISSUE A LICENSE TO YOU TO MAKE OR HAVE MADE IN CANADA ANY EQUIPMENT
COMING WITHIN THE AMBIT OF OUR PATENTS." 

/18/  HRI URGES THAT THE TRIAL TESTIMONY AS TO CANADA OF EACH OF TWO
ZENITH OFFICERS, WRIGHT AND KAPLAN, WAS INCONSISTENT WITH HIS OWN
TESTIMONY ON RECALL, INCONSISTENT WITH THE TESTIMONY OF THE OTHER, AND
INCONSISTENT WITH DOCUMENTARY EVIDENCE, AND THAT WE SHOULD THEREFORE
DISREGARD THEIR TESTIMONY.  IT IS TRUE THAT THE TRIAL JUDGE'S VIEWS AS
TO CREDIBILITY ARE NOT COMPLETELY IMPERVIOUS, BUT RULE 52(A) ADMONISHES
DUE REGARD FOR THE TRIAL COURT'S OPPORTUNITY TO ASSESS THE CREDIBILITY
OF WITNESSES.  THE COURT OF APPEALS CLEARLY TOOK INTO ACCOUNT THIS
EVIDENCE, AND WE SEE NO ADEQUATE BASIS IN THE RECORD FOR REFUSING TO
ACCEPT THE TESTIMONY OF THE TWO ZENITH OFFICERS AS PROBATIVE EVIDENCE. 
SEE UNITED STATES V. UNITED SHOE MACHINERY CO., 247 U.S. 32, 37-38
(1918); WALLING V. GENERAL INDUSTRIES CO., 330 U.S. 545, 550 (1947);
GRAVER TANK & MFG. CO. V. LINDE AIR PRODUCTS CO., 339 U.S. 605, 609-612
(1950); UNITED STATES V. OREGON STATE MEDICAL SOCIETY, 343 U.S. 326,
332 (1952); ORVIS V. HIGGINS, 180 F.2D 537, 539-540 (C.A. 2D CIR.),
CERT. DENIED, 340 U.S. 810 (1950); RUTH V. UTAH CONSTRUCTION & MINING
CO., 344 F.2D 952 (C.A. 10TH CIR. 1965).  HRI RELIES HEAVILY IN THIS
RESPECT ON ZENITH'S ANNUAL REPORTS FOR THE YEARS 1957-1962, BUT ASIDE
FROM THE FACT THAT THESE REPORTS, EXCEPT FOR 1962, WERE NEVER ADMITTED
INTO EVIDENCE, WE FIND THEM QUITE INSUFFICIENT TO UNDERMINE THE
CREDIBILITY OF WRIGHT AND KAPLAN.     /19/  WRIGHT TESTIFIED THAT IN
MID-1955 A REPRESENTATIVE OF THE ENGLISH POOL HAD CONFIRMED HIS
UNDERSTANDING THAT "THE POLICY OF THE POOL . . . REQUIRED THAT (RADIO
AND TELEVISION) SETS BE MADE IN ENGLAND, AND THAT NOTHING WOULD BE
LICENSED IF IT WAS IMPORTED FROM ABROAD."  WRIGHT FURTHER TESTIFIED
THAT THE POOL REPRESENTATIVE "SAW NO POSSIBILITY" THAT THIS RESTRICTIVE
POLICY WOULD BE CHANGED IN THE FUTURE.  SUBSEQUENTLY, DURING ITS
DEALINGS WITH ITS ENGLISH RADIO DISTRIBUTOR, ZENITH WAS "GIVEN TO
UNDERSTAND THAT TELEVISION WAS JUST OUT OF THE QUESTION." 

/20/  BECAUSE THE EMBARGO PRECLUDED ANY RECOVERY BY ZENITH FOR THE
FIRST YEAR OF THE DAMAGE PERIOD, THE TRIAL COURT MODIFIED ITS INITIAL
MEASURE OF DAMAGES TO REFLECT THE TIME IT WOULD HAVE TAKEN ZENITH,
STARTING WITH THE REMOVAL OF THE EMBARGO, TO BUILD UP ITS MARKET
SHARE.  SEE N. 1, SUPRA. 

/21/  SEE AMERICAN BANANA CO. V. UNITED FRUIT CO. 166 F. 261, 264
(C.A. 2D CIR. 1908), AFFIRMED WITHOUT SPECIFIC REFERENCE TO THIS ISSUE,
213 U.S. 347 (1909); STEARNS V. TINKER & RASOR, 252 F.2D 589, 606 (C.A.
9TH CIR. 1958); VOLASCO PRODUCTS CO. V. LLOYD A. FRY ROOFING CO., 308
F.2D 383, 395-396 (C.A. 6TH CIR. 1962), CERT. DENIED, 372 U.S. 907
(1963).  CF. PENNSYLVANIA SUGAR RFG.  CO. V. AMERICAN SUGAR RFG.  CO.,
166 F. 254, 260 (C.A. 2D CIR. 1908). 

/22/  DURING TRIAL, WRIGHT AND KAPLAN TESTIFIED THAT ADJUSTMENTS
COULD BE MADE BY ZENITH'S ENGLISH DISTRIBUTOR IN HIS SHOP TO ADAPT
ZENITH TELEVISION SETS TO THE ENGLISH TRANSMISSION SYSTEM.  HOWEVER,
THE FAIR IMPORT OF THEIR TESTIMONY, BOTH DURING TRIAL AND IN NOVEMBER
1965 ON RECALL, WAS THAT CONVERSION OF ZENITH SETS TO THE ENGLISH
SYSTEM, WHETHER DONE BEFORE SHIPMENT TO ENGLAND OR IN THE DISTRIBUTOR'S
SHOP, HAD IN FACT BEEN CARRIED OUT ONLY OCCASIONALLY IN THE PAST AND
WAS OF QUESTIONABLE UTILITY ON A COMMERCIAL BASIS.  WRIGHT AND KAPLAN
STATED THAT ZENITH COULD HAVE MANUFACTURED A TELEVISION SET SUITABLE
FOR ENGLISH USE WITHOUT APPRECIABLY MORE DIFFICULTY THAN ZENITH FACED
IN PRODUCING A NEW MODEL FOR THE AMERICAN MARKET, BUT THE RECORD DOES
NOT INDICATE THAT ZENITH TOOK ANY STEPS IN THIS DIRECTION BEFORE THE
END OF THE DAMAGE PERIOD, EXCEPT IN ANTICIPATION OF THE BRITISH
CHANGEOVER TO THE 625-LINE-PER-SECOND TRANSMISSION SYSTEM. 

/23/  PARAGRAPH C OF THE DISTRICT COURT'S INJUNCTION PROHIBITS HRI
FROM 

"ENTERING INTO, ADHERING TO, ENFORCING OR CLAIMING ANY RIGHTS UNDER
ANY CONTRACT, AGREEMENT, UNDERSTANDING, PLAN OR PROGRAM, WITH ANY OTHER
PERSON, COMPANY, PATENT POOL, ORGANIZATION, ASSOCIATION, CORPORATION OR
ENTITY WHICH DIRECTLY OR INDIRECTLY RESTRICTS OR PREVENTS DEFENDANT
COUNTERCLAIMANT, ZENITH RADIO CORPORATION, OR ANY OF ITS SUBSIDIARIES,
FROM EXPORTING ANY ELECTRONIC APPARATUS FROM THE UNITED STATES INTO ANY
FOREIGN MARKET." 

/24/  SECTION 16 PROVIDES: 

"ANY PERSON, FIRM, CORPORATION, OR ASSOCIATION SHALL BE ENTITLED TO
SUE FOR AND HAVE INJUNCTIVE RELIEF, IN ANY COURT OF THE UNITED STATES
HAVING JURISDICTION OVER THE PARTIES, AGAINST THREATENED LOSS OR DAMAGE
BY A VIOLATION OF THE ANTITRUST LAWS, . . . WHEN AND UNDER THE SAME
CONDITIONS AND PRINCIPLES AS INJUNCTIVE RELIEF AGAINST THREATENED
CONDUCT THAT WILL CAUSE LOSS OR DAMAGE IS GRANTED BY COURTS OF EQUITY,
UNDER THE RULES GOVERNING SUCH PROCEEDINGS . . . . "  15 U.S.C. 26. 

/25/  HRI INFORMS US THAT HAZELTINE, HAVING OBTAINED AN EARLY
TERMINATION OF ITS LICENSING AGREEMENT WITH CRPL, IS NOW PREPARED TO
LICENSE ANY ONE OR MORE OF ITS CANADIAN PATENTS "WITH NO RESTRICTIONS
ON IMPORTS."  SINCE HAZELTINE'S ABANDONMENT OF ITS PARTICIPATION IN THE
CANADIAN POOL OCCURRED ONLY AFTER-- AND, APPARENTLY, IN RESPONSE TO--
THE DISTRICT COURT'S JUDGMENT AND DECREE, WE CANNOT AGREE WITH THE
SUGGESTION THAT INJUNCTIVE RELIEF AS TO CANADA HAS BEEN RENDERED
UNNECESSARY AND INAPPROPRIATE.  SEE UNITED STATES V. OREGON STATE
MEDICAL SOCIETY, 343 U.S. 326, 333 (1952); UNITED STATES V.
CONCENTRATED PHOSPHATE EXPORT ASSN., 393 U.S. 199, 202-203 (1968). 
ALTHOUGH HRI IS FREE TO ATTEMPT TO DEMONSTRATE IN THE FUTURE THAT THE
NEED FOR INJUNCTIVE RELIEF WITH RESPECT TO CANADA HAS BEEN ELIMINATED,
OR THAT A CHANGE OF CIRCUMSTANCES ELSEWHERE JUSTIFIES ADDITIONAL
MODIFICATIONS OF THE INJUNCTION, SEE, E.G., UNITED STATES V. W. T.
GRANT CO., 345 U.S. 629, 633-636 (1953), WE ARE NOT WILLING AT THIS
TIME TO UNDERTAKE A REAPPRAISAL OF THE INJUNCTION IN LIGHT OF POST
TRIAL DEVELOPMENTS. 

/26/  HAVING NOT DISTURBED THE DISTRICT COURT'S FINDINGS THAT HRI
AND HAZELTINE WERE CONSPIRING WITH ENGLISH AND AUSTRALIAN PATENT POOLS
WHICH REFUSED TO LICENSE IMPORTS, THE COURT OF APPEALS IN ANY EVENT
SHOULD HAVE SUSTAINED THE INJUNCTION WITH RESPECT TO THE ENGLISH AND
AUSTRALIAN MARKETS.  THESE FINDINGS, TOGETHER WITH ZENITH'S
DEMONSTRATED INTENT TO EXPAND ITS EXPORT BUSINESS, WERE SUFFICIENT
FOUNDATION FOR THE CONCLUSION THAT CONTINUED PARTICIPATION BY HRI AND
HAZELTINE IN THE ENGLISH AND AUSTRALIAN POOLS POSED A SIGNIFICANT
THREAT OF LOSS OR DAMAGE TO ZENITH'S BUSINESS. 

/27/  THE DISTRICT COURT'S INJUNCTION ALSO INCLUDED A PARAGRAPH
BARRING HRI FROM CONTINUING TO COERCE ACCEPTANCE OF ITS PACKAGE LICENSE
THROUGH THE MECHANISM OF OFFERING A MUCH LOWER ROYALTY RATE FOR THOSE
LICENSEES WHO TAKE A LICENSE ON THE ENTIRE PACKAGE OF PATENTS RATHER
THAN A LICENSE ON MERELY A FEW OF THEM.  PARAGRAPH B ENJOINED HRI FROM 

"CONDITIONING DIRECTLY OR INDIRECTLY THE GRANT OF ANY LICENSE TO
DEFENDANT-COUNTERCLAIMANT, ZENITH RADIO CORPORATION, OR ANY OF ITS
SUBSIDIARIES, UNDER ANY DOMESTIC PATENT UPON THE PAYMENT OF THE SAME OR
GREATER ROYALTY RATE THAN THE RATE AT WHICH LICENSES HAVE BEEN GRANTED
OR OFFERED TO OTHERS UNDER A GROUP OF DOMESTIC PATENTS WHICH INCLUDES
SAID PATENT." 

THE COURT OF APPEALS MODIFIED THIS PARAGRAPH IN CERTAIN RESPECTS,
388 F.2D, AT 39, BUT WE DO NOT DISTURB THESE MODIFICATIONS. 

/28/  THE DISTRICT COURT CONCLUDED: 

"PLAINTIFF'S DEMANDS THAT ROYALTIES BE PAID ON ADMITTEDLY UNPATENTED
APPARATUS CONSTITUTE MISUSE OF ITS PATENT RIGHTS AND PLAINTIFF CANNOT
JUSTIFY SUCH USE OF THE MONOPOLIES OF ITS PATENTS, BY ARGUING THE
NECESSITIES AND CONVENIENCE TO IT OF SUCH A POLICY.  WHILE PARTIES IN
AN ARMS-LENGTH TRANSACTION ARE FREE TO SELECT ANY ROYALTY BASE THAT MAY
SUIT THEIR MUTUAL CONVENIENCE, A PATENTEE HAS NO RIGHT TO DEMAND OR
FORCE THE PAYMENT OF ROYALTIES ON UNPATENTED PRODUCTS."  239 F.SUPP.,AT
77. 

/29/  THE RECORD AND ORAL ARGUMENT IN AUTOMATIC RADIO DISCLOSE NO
BASIS FOR THE CONCLUSION THAT AUTOMATIC RADIO WAS FORCED INTO ACCEPTING
THE TOTAL-SALES ROYALTY RATE BY HRI'S USE OF ITS PATENT LEVERAGE. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN PARTS I AND II OF THE COURT'S OPINION.  HOWEVER, I DO
NOT JOIN PART III, IN WHICH THE COURT HOLDS THAT A PATENT LICENSE
PROVISION WHICH MEASURES ROYALTIES BY A PERCENTAGE OF THE LICENSEE'S
TOTAL SALES IS LAWFUL IF INCLUDED FOR THE "CONVENIENCE" OF BOTH PARTIES
BUT UNLAWFUL IF "INSISTED UPON" BY THE PATENTEE. 

MY FIRST DIFFICULTY WITH THIS PART OF THE OPINION IS THAT ITS TEST
FOR VALIDITY OF SUCH ROYALTY PROVISIONS IS LIKELY TO PROVE EXCEEDINGLY
DIFFICULT TO APPLY AND CONSEQUENTLY IS APT TO ENGENDER UNCERTAINTY IN
THIS AREA OF BUSINESS DEALING, WHERE CERTAINTY IN THE LAW IS
PARTICULARLY DESIRABLE.  IN PRACTICE, IT OFTEN WILL BE VERY HARD TO
TELL WHETHER A LICENSE PROVISION WAS INCLUDED AT THE INSTANCE OF BOTH
PARTIES OR ONLY AT THE WILL OF THE LICENSOR.  DISTRICT COURTS WILL HAVE
THE UNENVIABLE TASK OF DECIDING WHETHER THE COURSE OF NEGOTIATIONS
ESTABLISHES "INSISTENCE" UPON THE SUSPECT PROVISION.  BECAUSE OF THE
UNCERTAINTY INHERENT IN SUCH DETERMINATIONS, PARTIES TO EXISTING AND
FUTURE LICENSES WILL HAVE LITTLE ASSURANCE THAT THEIR AGREEMENTS WILL
BE ENFORCED.  AND IT MAY BE PREDICTED THAT AFTER TODAY'S DECISION THE
LICENSOR WILL BE CAREFUL TO EMBELLISH THE NEGOTIATIONS WITH AN
ALTERNATIVE PROPOSEL, MAKING THE COURT'S UNRAVELLING OF THE SITUATION
THAT MUCH MORE DIFFICULT. 

SUCH CONSIDERATIONS LEAD ME TO THE VIEW THAT ANY RULE WHICH CAUSES
THE VALIDITY OF PERCENTAGE-OF-SALES ROYALTY PROVISIONS TO DEPEND UPON
SUBSEQUENT JUDICIAL EXAMINATION OF THE PARTIES' NEGOTIATIONS WILL
DISSERVE RATHER THAN FURTHER THE INTERESTS OF ALL CONCERNED.  HENCE, I
THINK THAT THE COURT HAS FALLEN SHORT IN FAILING TO ADDRESS ITSELF TO
THE QUESTION WHETHER EMPLOYMENT OF SUCH ROYALTY PROVISIONS SHOULD
INVARIABLY AMOUNT TO PATENT MISUSE.  /1/ 

MY SECOND DIFFICULTY WITH THIS PART OF THE COURT'S OPINION IS THAT
IN REALITY IT OVERRULES AN ASPECT OF A PRIOR DECISION OF THIS COURT. 
AUTOMATIC RADIO MFG. CO. V. HAZELTINE RESEARCH, INC., 339 U.S. 827
(1950), WITHOUT OFFERING MORE THAN A SHADOW OF A REASON IN LAW OR
ECONOMICS FOR DEPARTING FROM THAT EARLIER RULING.  DESPITE THE COURT'S
EFFORTS TO DISTINGUISH AUTOMATIC RADIO, IT CANNOT BE DENIED THAT THE
COURT THERE SUSTAINED A HAZELTINE PATENT LICENSE OF PRECISELY THE SAME
TENOR AS THE ONE INVOLVED HERE, ON THE GROUND THAT "(THIS ROYALTY
PROVISION DOES NOT CREATE ANOTHER MONOPOLY; IT CREATES NO RESTRAINT OF
COMPETITION BEYOND THE LEGITIMATE GRANT OF THE PATENT."  339 U.S.,AT
833. 

IN FINDING SIGNIFICANCE FOR PRESENT PURPOSES IN SOME OF THE
QUALIFYING LANGUAGE IN AUTOMATIC RADIO, I BELIEVE THAT THE COURT TODAY
HAS MISCONSTRUED THAT OPINION.  A READING OF THE OPINION AS A WHOLE
SATISFIES ME THAT THE AUTOMATIC RADIO COURT DID NOT CONSIDER IT
RELEVANT WHETHER HAZELTINE RESEARCH HAD "INSISTED" UPON INCLUSION OF
THE DISPUTED PROVISION, AND THAT IN EMPHASIZING THAT THE ROYALTY TERMS
HAD NO "INHERENT"  TENDENCY TO EXTEND THE PATENT MONOPOLY AND WERE NOT
A "PER SE" MISUSE OF PATENTS, THE COURT WAS SIMPLY ENDEAVORING TO
DISTINGUISH PRIOR DECISIONS IN WHICH PATENT MISUSE WAS FOUND WHEN THE
PATENT MONOPOLY HAD BEEN EMPLOYED TO "CREATE ANOTHER MONOPOLY OR
RESTRAINT OF COMPETITION."  339 U.S.,AT 832.  /2/  UNTIL NOW NO
SUBSEQUENT DECISION HAS IN ANY WAY IMPAIRED THIS ASPECT OF AUTOMATIC
RADIO.  /3/ 

SINCE THE COURT'S DECISION FINDS LITTLE IF ANY SUPPORT IN THE PRIOR
CASE LAW, ONE WOULD EXPECT FROM THE COURT AN EXPOSITION OF ECONOMIC
REASONS FOR DOING AWAY WITH THE AUTOMATIC RADIO DOCTRINE.  HOWEVER, THE
NEAREST THING TO AN ECONOMIC RATIONALE IS THE COURT'S DECLARATION
THAT: 

"JUST AS THE PATENT'S LEVERAGE MAY NOT BE USED TO EXTRACT FROM THE
LICENSEE A COMMITMENT TO PURCHASE, USE, OR SELL OTHER PRODUCTS
ACCORDING TO THE DESIRES OF THE PATENTEE, NEITHER CAN THAT LEVERAGE BE
USED TO GARNER AS ROYALTIES A PERCENTAGE SHARE OF THE LICENSEE'S
RECEIPTS FROM SALES OF OTHER PRODUCTS; IN EITHER CASE, THE PATENTEE
SEEKS TO EXTEND THE MONOPOLY OF HIS PATENT TO DERIVE A BENEFIT NOT
ATTRIBUTABLE TO USE OF THE PATENT'S TEACHINGS."  ANTE, AT 136. 

THE COURT THEN FINDS IN THE PATENTEE A HERETOFORE NONEXISTENT RIGHT
TO "INSIST UPON PAYING ONLY FOR USE, AND NOT ON THE BASIS OF TOTAL
SALES . . . . "  ANTE, AT 139. 

WHAT THE COURT DOES NOT UNDERTAKE TO EXPLAIN IS HOW INSISTENCE UPON
A PERCENTAGE-OF-SALES ROYALTY ENABLES A PATENTEE TO OBTAIN AN ECONOMIC
"BENEFIT NOT ATTRIBUTABLE TO USE OF THE PATENT'S TEACHINGS," THEREBY
INVOLVING HIMSELF IN PATENT MISUSE.  FOR IT MUST BE REMEMBERED THAT ALL
THE PATENTEE HAS TO LICENSE IS THE RIGHT TO USE HIS PATENT.  IT IS
SOLELY FOR THAT RIGHT THAT A PERCENTAGE-OF-SALES ROYALTY IS PAID, AND
IT IS NOT APPARENT FROM THE COURT'S OPINION WHY THIS METHOD OF
DETERMINING THE AMOUNT OF THE ROYALTY SHOULD BE ANY LESS PERMISSIBLE
THAN THE OTHER ALTERNATIVES, WHETHER OR NOT IT IS "INSISTED" UPON BY
THE PATENTEE. 

ONE POSSIBLE EXPLANATION FOR THE COURT'S RESULT, WHICH SEEMS
ESPECIALLY LIKELY IN VIEW OF THE COURT'S EXCEPTION FOR CASES WHERE THE
PROVISION WAS INCLUDED FOR THE "CONVENIENCE" OF BOTH PARTIES, IS A
DESIRE TO PROTECT LICENSEES AGAINST OVERREACHING.  BUT THE COURT DOES
NOT CITE, AND THE PARTIES HAVE NOT PRESENTED, ANY EVIDENCE THAT
LICENSEES AS A CLASS NEED SUCH PROTECTION.  /4/  MOREOVER, THE COURT
DOES NOT EXPLAIN WHY A ROYALTY BASED SIMPLY UPON USE COULD NOT BE
EQUALLY OVERREACHING. 

ANOTHER POSSIBLE JUSTIFICATION FOR THE COURT'S RESULT MIGHT BE THAT
A ROYALTY BASED DIRECTLY UPON USE OF THE PATENT WILL TEND TO SPUR THE
LICENSEE TO "INVENT AROUND" THE PATENT OR OTHERWISE ACQUIRE A
SUBSTITUTE WHICH COSTS LESS, WHILE A PERCENTAGE-OF-SALES ROYALTY CAN
HAVE NO SUCH EFFECT BECAUSE OF THE LICENSEE'S KNOWLEDGE THAT HE MUST
PAY THE ROYALTY REGARDLESS OF ACTUAL PATENT USE.  NO HINT OF SUCH A
RATIONALE APPEARS IN THE COURT'S OPINION.  MOREOVER, UNDER THIS THEORY
A PERCENTAGE-OF-SALES ROYALTY WOULD BE OBJECTIONABLE LARGELY BECAUSE OF
RESULTING DAMAGE TO THE REST OF THE ECONOMY, THROUGH LESS EFFICIENT
ALLOCATION OF RESOURCES, RATHER THAN BECAUSE OF POSSIBLE HARM TO THE
LICENSEE.  HENCE THE THEORY MIGHT NOT ADMIT OF THE COURT'S EXCEPTION
FOR PROVISIONS INCLUDED FOR THE "CONVENIENCE" OF BOTH PARTIES. 

BECAUSE OF ITS FAILURE TO EXPLAIN THE REASONS FOR THE RESULT REACHED
IN PART III, THE COURT'S OPINION IS OF LITTLE ASSISTANCE IN ANSWERING
THE QUESTION WHICH I CONSIDER TO BE THE CRUX OF THIS PART OF THE CASE:
WHETHER PERCENTAGE-OF-SALES ROYALTY PROVISIONS SHOULD BE HELD WITHOUT
EXCEPTION TO CONSTITUTE PATENT MISUSE.  A RECENT ECONOMIC ANALYSIS /5/
ARGUES THAT SUCH PROVISIONS MAY HAVE TWO UNDESIRABLE CONSEQUENCES. 
FIRST, AS HAS ALREADY BEEN NOTED, EMPLOYMENT OF SUCH PROVISIONS MAY
TEND TO REDUCE THE LICENSEE'S INCENTIVE TO SUBSTITUTE OTHER, CHEAPER
"INPUTS" FOR THE PATENTED ITEM IN PRODUCING AN UNPATENTED END-PRODUCT. 
FAILURE OF THE LICENSEE TO SUBSTITUTE WILL, IT IS SAID, CAUSE THE PRICE
OF THE END-PRODUCT TO BE HIGHER AND ITS OUTPUT LOWER THAN WOULD BE THE
CASE IF SUBSTITUTION HAD OCCURRED.  /6/  SECOND, IT IS SUGGESTED THAT
UNDER CERTAIN CONDITIONS A PERCENTAGE-OF-SALES ROYALTY ARRANGEMENT MAY
ENABLE THE PATENTEE TO GARNER FOR HIMSELF ELEMENTS OF PROFIT, ABOVE THE
NORM FOR THE INDUSTRY OR ECONOMY, WHICH ARE PROPERLY ATTRIBUTABLE NOT
TO THE LICENSEE'S USE OF THE PATENT BUT TO OTHER FACTORS WHICH CAUSE
THE LICENSEE'S SITUATION TO DIFFER FROM ONE OF "PERFECT COMPETITION,"
AND THAT THIS CANNOT OCCUR WHEN ROYALTIES ARE BASED UPON USE.  /7/ 
IF ACCEPTED, THIS ECONOMIC ANALYSIS WOULD INDICATE THAT PERCENTAGE-OF
SALES ROYALTIES SHOULD BE ENTIRELY OUTLAWED.  HOWEVER, SO FAR AS I HAVE
BEEN ABLE TO FIND, THERE HAS AS YET BEEN LITTLE DISCUSSION OF THESE
MATTERS EITHER BY LAWYERS OR BY ECONOMISTS.  AND I FIND SCANT
ILLUMINATION ON THIS SCORE IN THE BRIEFS AND ARGUMENTS OF THE PARTIES
IN THIS CASE.  THE COURT HAS POINTED OUT BOTH TODAY AND IN AUTOMATIC
RADIO THAT PERCENTAGE-OF-SALES ROYALTIES MAY BE ADMINISTRATIVELY
ADVANTAGEOUS FOR BOTH PATENTEE AND LICENSEE.  IN THESE CIRCUMSTANCES,
CONFRONTED, AS I BELIEVE WE ARE, WITH THE CHOICE OF HOLDING SUCH
ROYALTY PROVISIONS EITHER VALID OR INVALID ACROSS THE BOARD, I WOULD,
AS AN INDIVIDUAL MEMBER OF THE COURT, ADHERE FOR THE PRESENT TO THE
RULE OF AUTOMATIC RADIO. 

/1/  I FIND IT UNNECESSARY TO CONSIDER THE FURTHER QUESTION WHETHER
INCLUSION OF SUCH A PROVISION SHOULD BE HELD TO VIOLATE THE ANTITRUST
LAWS. 

/2/  THE AUTOMATIC RADIO COURT EXPLICITLY DISTINGUISHED A NUMBER OF
CASES OF THAT KIND, INCLUDING UNITED STATES V. UNITED STATES GYPSUM
CO., 333 U.S. 364 (1948), AND MERCOID CORP. V. MID-CONTINENT INVESTMENT
CO., 320 U.S. 661 (1944).  SEE 339 U.S.,AT 832-833. 

/3/  BRULOTTE V. THYS CO., 379 U.S. 29 (1964), INVOLVED A DIFFERENT
QUESTION:  WHETHER A ROYALTY BASED SOLELY UPON USE OF THE INVENTION
COULD BE COLLECTED FOR USE OCCURRING AFTER THE PATENT'S EXPIRATION. 

/4/  CF. AMERICAN PHOTOCOPY EQUIP.  CO. V. ROVICO, 359 F.2D 745
(1966). 

/5/  BAXTER, LEGAL RESTRICTIONS ON EXPLOITATION OF THE PATENT
MONOPOLY:  AN ECONOMIC ANALYSIS, 76 YALE L.J. 267 (1966). 

/6/  SEE ID., AT 299-301, 302-306. 

/7/  SEE ID., AT 300-301, 302-306, 331-332. 

THOMAS C. MCCONNELL ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE PHILIP J. CURTIS AND FRANCIS J. MCCONNEL. 

JOHN T. CHADWELL AND VICTOR P. KAYSER ARGUED THE CAUSE FOR
RESPONDENTS.  WITH HIM ON THE BRIEFS FOR RESPONDENT HAZELTINE RESEARCH,
INC., WERE C. LEE COOK, JR., JOSEPH V. GIFFIN, M. HUDSON RATHBURN, AND
LAURENCE B. DODDS.  WITH MESSRS.  CHADWELL AND KAYSER ON THE BRIEF FOR
HAZELTINE CORP. WERE MESSRS.  COOK AND GIFFIN. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL ZIMMERMAN,
AND HARRIS WEINSTEIN FILED A BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE. 
..END :





















FRANK V. UNITED STATES, 395 U.S. 147 


       FRANK V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT. 

        NO. 200.  ARGUED DECEMBER 12, 1968.-- DECIDED MAY 19,
1969. 


PETITIONER WAS CHARGED WITH CRIMINAL CONTEMPT FOR VIOLATING AN
INJUNCTION.  AFTER UNSUCCESSFULLY DEMANDING A JURY TRIAL, HE WAS TRIED
AND ADJUDGED GUILTY BY THE DISTRICT COURT, WHICH SUSPENDED IMPOSITION
OF SENTENCE AND PLACED HIM ON PROBATION FOR THREE YEARS.  THE COURT OF
APPEALS AFFIRMED.  HELD: 

1.  PETTY OFFENSES MAY BE TRIED WITHOUT A JURY.  IN DETERMINING
WHETHER AN OFFENSE CAN BE CLASSIFIED AS "PETTY" THE MOST RELEVANT
CRITERION IS THE SEVERITY OF THE PENALTY AUTHORIZED, AND WHERE NO
MAXIMUM PENALTY IS AUTHORIZED, THE SEVERITY OF THE PENALTY ACTUALLY
IMPOSED.  PP. 148-149. 

2.  CRIMINAL CONTEMPT SENTENCES OF UP TO SIX MONTHS MAY BE
CONSTITUTIONALLY IMPOSED WITHOUT A JURY TRIAL.  SEE CHEFF V.
SCHNACKENBERG, 384 U.S. 373.  P. 150. 

3.  CONGRESS MADE THE FEDERAL PROBATION STATUTE (18 U.S.C. 3651),
UNDER WHICH MOST OFFENDERS MAY BE PLACED ON PROBATION FOR UP TO FIVE
YEARS, APPLICABLE TO PETTY AS WELL AS MORE SERIOUS OFFENSES AND THUS
PETTY OFFENSES MAY BE TRIED BY ANY COMBINATION OF PENALTIES AUTHORIZED
BY 18 U.S.C. 1 AND 3651.  P. 150. 

4.  SINCE PETITIONER'S SENTENCE WAS WITHIN THE LIMITS OF THE
CONGRESSIONAL DEFINITION OF PETTY OFFENSE, HE WAS NOT ENTITLED TO A
JURY TRIAL.  P. 152. 

384 F.2D 276, AFFIRMED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CHARGED WITH CRIMINAL CONTEMPT OF THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA.  THE CHARGE
RESULTED FROM HIS VIOLATION OF AN INJUNCTION ISSUED BY THAT COURT AT
THE REQUEST OF THE SECURITIES AND EXCHANGE COMMISSION.  THE INJUNCTION
RESTRAINED PETITIONER FROM USING INTERSTATE FACILITIES IN THE SALE OF
CERTAIN OIL INTERESTS WITHOUT HAVING FILED A REGISTRATION STATEMENT
WITH THE COMMISSION.  PETITIONER'S DEMAND FOR A JURY TRIAL WAS DENIED. 
HE WAS CONVICTED, AND THE COURT SUSPENDED IMPOSITION OF SENTENCE AND
PLACED HIM ON PROBATION FOR THREE YEARS.  THE COURT OF APPEALS
AFFIRMED.  FRANK V. UNITED STATES, 384 F.2D 276 (C.A. 10TH CIR. 1967). 
WE GRANTED CERTIORARI, 392 U.S. 925 (1968), TO DETERMINE WHETHER
PETITIONER WAS ENTITLED TO A JURY TRIAL.  WE CONCLUDE THAT HE WAS NOT. 

THE SIXTH AMENDMENT TO THE CONSTITUTION GIVES DEFENDANTS A RIGHT TO
A TRIAL BY JURY IN "ALL CRIMINAL PROSECUTIONS."  HOWEVER, IT HAS LONG
BEEN A RULE THAT SO-CALLED "PETTY" OFFENSES MAY BE TRIED WITHOUT A
JURY.  SEE, E.G., DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617
(1937).  FOR PURPOSES OF THE RIGHT TO TRIAL BY JURY, CRIMINAL CONTEMPT
IS TREATED JUST LIKE ALL OTHER CRIMINAL OFFENSES.  THE DEFENDANT IS
ENTITLED TO A JURY TRIAL UNLESS THE PARTICULAR OFFENSE CAN BE
CLASSIFIED AS "PETTY."  DYKE V. TAYLOR IMPLEMENT MFG. CO., 391 U.S. 216
(1968); BLOOM V. ILLINOIS, 391 U.S. 194 (1968); CHEFF V. SCHNACKENBERG,
384 U.S. 373 (1966). 

IN DETERMINING WHETHER A PARTICULAR OFFENSE CAN BE CLASSIFIED AS
"PETTY," THIS COURT HAS SOUGHT OBJECTIVE INDICATIONS OF THE SERIOUSNESS
WITH WHICH SOCIETY REGARDS THE OFFENSE.  DISTRICT OF COLUMBIA V.
CLAWANS, SUPRA, AT 628.  THE MOST RELEVANT INDICATION OF THE
SERIOUSNESS OF AN OFFENSE IS THE SEVERITY OF THE PENALTY AUTHORIZED FOR
ITS COMMISSION.  THUS, IN CLAWANS THIS COURT HELD THAT A JURY TRIAL WAS
NOT REQUIRED IN A PROSECUTION FOR ENGAGING IN A CERTAIN BUSINESS
WITHOUT A LICENSE, AN OFFENSE CARRYING A MAXIMUM SENTENCE OF 90 DAYS. 
RECENTLY, WE HELD THAT A JURY TRIAL WAS REQUIRED IN A STATE PROSECUTION
FOR SIMPLE BATTERY, AN OFFENSE CARRYING A POSSIBLE PRISON SENTENCE OF
TWO YEARS.  DUNCAN V. LOUISIANA, 391 U.S. 145 (1968). 

IN ORDINARY CRIMINAL PROSECUTIONS, THE SEVERITY OF THE PENALTY
AUTHORIZED, NOT THE PENALTY ACTUALLY IMPOSED, IS THE RELEVANT
CRITERION.  IN SUCH CASES, THE LEGISLATURE HAS INCLUDED WITHIN THE
DEFINITION OF THE CRIME ITSELF A JUDGMENT ABOUT THE SERIOUSNESS OF THE
OFFENSE.  SEE DUNCAN V. LOUISIANA, SUPRA, AT 162, N. 35.  BUT A PERSON
MAY BE FOUND IN CONTEMPT OF COURT FOR A GREAT MANY DIFFERENT TYPES OF
OFFENSES, RANGING FROM DISRESPECT FOR THE COURT TO ACTS OTHERWISE
CRIMINAL.  CONGRESS, PERHAPS IN RECOGNITION OF THE SCOPE OF CRIMINAL
CONTEMPT, HAS AUTHORIZED COURTS TO IMPOSE PENALTIES BUT HAS NOT PLACED
ANY SPECIFIC LIMITS ON THEIR DISCRETION; IT HAS NOT CATEGORIZED
CONTEMPTS AS "SERIOUS" OR "PETTY."  18 U.S.C. 401, 402.  /1/
ACCORDINGLY, THIS COURT HAS HELD THAT IN PROSECUTIONS FOR CRIMINAL
CONTEMPT WHERE NO MAXIMUM PENALTY IS AUTHORIZED, THE SEVERITY OF THE
PENALTY ACTUALLY IMPOSED IS THE BEST INDICATION OF THE SERIOUSNESS OF
THE PARTICULAR OFFENSE.  /2/  SEE, E.G., CHEFF V. SCHNACKENBERG, SUPRA.
THUS, THIS COURT HAS HELD THAT SENTENCES FOR CRIMINAL CONTEMPT OF UP
TO SIX MONTHS MAY CONSTITUTIONALLY BE IMPOSED WITHOUT A JURY TRIAL. 
IBID.  /3/ 

THE GOVERNMENT CONCEDES THAT A JURY TRIAL WOULD HAVE BEEN NECESSARY
IN THE PRESENT CASE IF PETITIONER HAD RECEIVED A SENTENCE IN EXCESS OF
SIX MONTHS.  INDEED, THE GOVERNMENT CONCEDES THAT PETITIONER MAY BE
SENTENCED TO NO MORE THAN SIX MONTHS IF HE VIOLATES THE TERMS OF HIS
PROBATION.  /4/  HOWEVER, THE GOVERNMENT ARGUES THAT PETITIONER'S
ACTUAL PENALTY IS ONE WHICH MAY BE IMPOSED UPON THOSE CONVICTED OF
OTHERWISE PETTY OFFENSES, AND, THUS, THAT A JURY TRIAL WAS NOT REQUIRED
IN THE PRESENT CASE.  WE AGREE. 

NUMEROUS FEDERAL AND STATE STATUTORY SCHEMES ALLOW SIGNIFICANT
PERIODS OF PROBATION TO BE IMPOSED FOR OTHERWISE PETTY OFFENSES.  FOR
EXAMPLE, UNDER FEDERAL LAW, MOST OFFENDERS MAY BE PLACED ON PROBATION
FOR UP TO FIVE YEARS IN LIEU OF OR, IN CERTAIN CASES, IN ADDITION TO A
TERM OF IMPRISONMENT.  SEE 18 U.S.C. 3651.  CONGRESS, IN MAKING THE
PROBATION STATUTE APPLICABLE TO "ANY OFFENSE NOT PUNISHABLE BY DEATH OR
LIFE IMPRISONMENT," CLEARLY MADE IT APPLY TO PETTY, AS WELL AS MORE
SERIOUS, OFFENSES.  IN SO DOING, IT DID NOT INDICATE THAT THE
ADDITIONAL PENALTY OF A TERM OF PROBATION WAS TO PLACE OTHERWISE PETTY
OFFENSES IN THE "SERIOUS" CATEGORY.  IN OTHER WORDS, CONGRESS DECIDED
THAT PETTY OFFENSES MAY BE PUNISHED BY ANY COMBINATION OF PENALTIES
AUTHORIZED BY 18 U.S.C. 1 AND 18 U.S.C. 3651.  THEREFORE, THE MAXIMUM
PENALTY AUTHORIZED IN PETTY OFFENSE CASES IS NOT SIMPLY SIX MONTHS'
IMPRISONMENT AND A $500 FINE.  A PETTY OFFENDER MAY BE PLACED ON
PROBATION FOR UP TO FIVE YEARS AND, IF THE TERMS OF PROBATION ARE
VIOLATED, HE MAY THEN BE IMPRISONED FOR SIX MONTHS.  18 U.S.C. 3653. 

IN CHEFF, THIS COURT UNDERTOOK TO CATEGORIZE CRIMINAL CONTEMPTS FOR
PURPOSES OF THE RIGHT TO TRIAL BY JURY.  IN THE EXERCISE OF ITS
SUPERVISORY POWER OVER THE LOWER FEDERAL COURTS, THE COURT DECIDED BY
ANALOGY TO 18 U.S.C. 1 THAT PENALTIES NOT EXCEEDING THOSE AUTHORIZED
FOR PETTY OFFENSES COULD BE IMPOSED IN CRIMINAL CONTEMPT CASES WITHOUT
AFFORDING THE RIGHT TO A JURY TRIAL.  /5/  WE THINK THE ANALOGY USED IN
CHEFF SHOULD APPLY EQUALLY HERE.  PENALTIES PRESENTLY AUTHORIZED BY
CONGRESS FOR PETTY OFFENSES, INCLUDING A TERM ON PROBATION, MAY BE
IMPOSED IN FEDERAL CRIMINAL CONTEMPT CASES WITHOUT A JURY TRIAL. 
PROBATION IS, OF COURSE, A SIGNIFICANT INFRINGEMENT OF PERSONAL
FREEDOM, BUT IT IS CERTAINLY LESS ONEROUS A RESTRAINT THAN JAIL
ITSELF.  /6/  IN NONCONTEMPT CASES, CONGRESS HAS NOT VIEWED THE
POSSIBILITY OF FIVE YEARS' PROBATION AS ONEROUS ENOUGH TO MAKE AN
OTHERWISE PETTY OFFENSE "SERIOUS."  THIS COURT IS ILL-EQUIPPED TO MAKE
A CONTRARY DETERMINATION FOR CONTEMPT CASES.  AS THIS COURT SAID IN
CLAWANS, "(DOUBTS MUST BE RESOLVED, NOT SUBJECTIVELY BY RECOURSE OF THE
JUDGE TO HIS OWN SYMPATHY AND EMOTIONS, BUT BY OBJECTIVE STANDARDS SUCH
AS MAY BE OBSERVED IN THE LAWS AND PRACTICES OF THE COMMUNITY TAKEN AS
A GAUGE OF ITS SOCIAL AND ETHICAL JUDGMENTS."  300 U.S.,AT 628. 

PETITIONER'S SENTENCE IS WITHIN THE LIMITS OF THE CONGRESSIONAL
DEFINITION OF PETTY OFFENSES.  ACCORDINGLY, IT WAS NOT ERROR TO DENY
HIM A JURY TRIAL. 

              AFFIRMED. 

/1/  CONGRESS HAS PROVIDED FOR A JURY TRIAL IN CERTAIN CASES OF
CRIMINAL CONTEMPT.  SEE, E.G., 18 U.S.C. 402, 3691, 3692.  SECTION 3691
PROVIDES FOR A JURY TRIAL IN CONTEMPTS INVOLVING WILLFUL DISOBEDIENCE
OF COURT ORDERS WHERE THE "ACT OR THING DONE OR OMITTED ALSO
CONSTITUTES A CRIMINAL OFFENSE UNDER ANY ACT OF CONGRESS, OR UNDER THE
LAWS OF ANY STATE . . . . "  THE PRESENT CASE FALLS WITHIN AN EXCEPTION
TO THAT RULE FOR CASES INVOLVING DISOBEDIENCE OF ANY COURT ORDER
"ENTERED IN ANY SUIT OR ACTION BROUGHT OR PROSECUTED IN THE NAME OF, OR
ON BEHALF OF, THE UNITED STATES." 

/2/  IF THE STATUTE CREATING THE OFFENSE SPECIFIES A MAXIMUM
PENALTY, THEN OF COURSE THAT PENALTY IS THE RELEVANT CRITERION.  SEE
DYKE V. TAYLOR IMPLEMENT MFG. CO., 391 U.S. 216 (1968). 

/3/  THE COURT IN CHEFF RELIED ON 18 U.S.C. 1, WHICH DEFINES A PETTY
OFFENSE AS "(ANY MISDEMEANOR, THE PENALTY FOR WHICH DOES NOT EXCEED
IMPRISONMENT FOR A PERIOD OF SIX MONTHS OR A FINE OF NOT MORE THAN
$500, OR BOTH . . . . " 

/4/  IF IMPOSITION OF SENTENCE IS SUSPENDED, THE COURT MAY UPON
REVOCATION OF PROBATION "IMPOSE ANY SENTENCE WHICH MIGHT ORIGINALLY
HAVE BEEN IMPOSED."  18 U.S.C. 3653.  UNDER CHEFF, THAT SENTENCE WOULD
BE LIMITED TO SIX MONTHS' IMPRISONMENT. 

/5/  "(WE ARE CONSTRAINED TO VIEW THE (CONTEMPT) PROCEEDINGS HERE AS
EQUIVALENT TO A PROCEDURE TO PROSECUTE A PETTY OFFENSE, WHICH UNDER OUR
DECISIONS DOES NOT REQUIRE A JURY TRIAL.  . . . ACCORDING TO 18 U.S.C.
1 (1964 ED.), '(ANY MISDEMEANOR, THE PENALTY FOR WHICH DOES NOT EXCEED
IMPRISONMENT FOR A PERIOD OF SIX MONTHS' IS A 'PETTY OFFENSE.'  SINCE
CHEFF RECEIVED A SENTENCE OF SIX MONTHS' IMPRISONMENT . . . , AND SINCE
THE NATURE OF CRIMINAL CONTEMPT, AN OFFENSE SUI GENERIS, DOES NOT, OF
ITSELF, WARRANT TREATMENT OTHERWISE . . . , CHEFF'S OFFENSE CAN BE
TREATED ONLY AS 'PETTY' IN THE EYES OF THE STATUTE AND OUR PRIOR
DECISIONS.  WE CONCLUDE THEREFORE THAT CHEFF WAS PROPERLY CONVICTED
WITHOUT A JURY."  CHEFF V. SCHNACKENBERG, SUPRA, AT 379-380. 

/6/  PETITIONER IS REQUIRED TO MAKE MONTHLY REPORTS TO HIS PROBATION
OFFICER, ASSOCIATE ONLY WITH LAW-ABIDING PERSONS, MAINTAIN REASONABLE
HOURS, WORK REGULARLY, REPORT ALL JOB CHANGES TO HIS PROBATION OFFICER,
AND NOT LEAVE THE PROBATION DISTRICT WITHOUT THE PERMISSION OF HIS
PROBATION OFFICER. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART, ADHERING TO THE VIEWS
EXPRESSED IN THE DISSENTING OPINION OF MR. JUSTICE HARLAN IN BLOOM V.
ILLINOIS, 391 U.S. 194, 215, AND IN PART I OF MR. JUSTICE HARLAN'S
SEPARATE OPINION IN CHEFF V. SCHNACKENBERG, 384 U.S. 373, 380, BUT
CONSIDERING THEMSELVES BOUND BY THE DECISIONS OF THE COURT IN THOSE
CASES, JOIN IN THE ABOVE OPINION OF THESE PREMISES. 

MR. CHIEF JUSTICE WARRAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE COURT'S DECISION TODAY MARKS AN UNFORTUNATE RETREAT FROM OUR
RECENT DECISIONS ENFORCING THE CONSTITUTION'S COMMAND THAT THOSE
ACCUSED OF CRIMINAL OFFENSES BE AFFORED THEIR FUNDAMENTAL RIGHT TO A
JURY TRIAL.  SEE, E.G., BLOOM V. ILLINOIS, 391 U.S. 194 (1968); DUNCAN
V. LOUISIANA, 391 U.S. 145 (1968); CHEFF V. SCHNACKENBERG, 384 U.S. 373
(1966).  AT THE SAME TIME, THE COURT ANNOUNCES AN ALARMING EXPANSION OF
THE NONJURY CONTEMPT POWER, THE EXCESSIVE USE OF WHICH WE HAVE SO
RECENTLY LIMITED IN BLOOM V. ILLINOIS, SUPRA, AND CHEFF V.
SCHNACKENBERG, SUPRA.  THE INESCAPABLE EFFECT OF THIS RECESSION WILL BE
TO PUT A NEW WEAPON FOR CHILLING POLITICAL EXPRESSION IN THE
UNRESTRAINED HANDS OF TRIAL JUDGES.  NOW FREED FROM THE CHECKS AND
RESTRAINTS OF THE JURY SYSTEM, LOCAL JUDGES CAN ACHIEVE, FOR A TERM OF
YEARS, SIGNIFICANT CONTROL OVER GROUPS WITH UNPOPULAR VIEWS THROUGH THE
SIMPLE USE OF THE INJUNCTIVE AND CONTEMPT POWER TOGETHER WITH A
PUNITIVE EMPLOYMENT OF THE PROBATION DEVICE, THE CONDITIONS OF WHICH
OFFER ALMOST UNLIMITED POSSIBILITIES FOR ABUSE.  BECAUSE I DO NOT
DESIRE TO CONTRIBUTE TO SUCH A RESULT, AND BECAUSE I BELIEVE THE
COURT'S RATIONALE RESTS ON A MISREADING OF THE PROBATION STATUTE, I
MUST NOTE MY DISSENT. 

 I. 

TODAY'S DECISION STANDS AS AN OPEN SUGGESTION TO THE COURTS TO
UTILIZE OPPRESSIVE PRACTICES FOR AVOIDING, IN UNSETTLED TIMES SUCH AS
THESE, ISSUES THAT MUST BE SQUARELY FACED AND FOR DENYING OUR
MINORITIES THEIR FULL RIGHTS UNDER THE FIRST AMENDMENT.  IN ORDER TO
INHIBIT, SUMMARILY, A GROUP SEEKING TO PROPAGATE EVEN THE LEAST
IRRITATING VIEWS, A TRIAL JUDGE NEED ONLY GIVE A QUICK GLANCE AT THE
COURT'S OPINION TO RECOGNIZE THE NUMEROUS OPTIONS NOW OPEN TO HIM.  IF,
FOR INSTANCE, A LARGE NUMBER OF CIVIL RIGHTS ADVOCATES, LABOR
UNIONISTS, OR STUDENT DEMONSTRATORS ARE BROUGHT INTO COURT ON MINOR
TRESPASS OR DISTURBANCE CHARGES, A JURY WILL NOT BE REQUIRED EVEN
THOUGH THE COURT PROPOSES TO CONTROL THEIR LIVES FOR AS LONG AS FIVE
YEARS.  WITHOUT HAVING TO WAIT FOR A JURY CONVICTION, THE TRIAL JUDGE
WOULD BE FREE TO IMPOSE, AT WILL, SUCH A LENGTHY PROBATION SENTENCE
WITH ONEROUS PROBATION CONDITIONS-- THE EFFECT OF WHICH COULD BE
OPPRESSIVE.  A TRIAL JUDGE NEED NOT WAIT UNTIL LAWS ARE VIOLATED AND
PROSECUTIONS ARE ACTUALLY BROUGHT.  HE CAN SIMPLY ISSUE A BLANKET
INJUNCTION AGAINST AN UNPOPULAR GROUP, CITE ITS MEMBERS FOR CONTEMPT EN
MASSE FOR THE SLIGHTEST INJUNCTION VIOLATION, DENY THEM A JURY, AND
THEN, BY IMPOSING STRICT CONDITIONS, EFFECTIVELY DEPRIVE THEM OF ANY
MEANINGFUL FREEDOM FOR AN INDEFINITE PERIOD OF UP TO FIVE YEARS. 
DESPITE OUR RECENT EFFORTS TO CURB ITS USE (SEE CARROLL V. PRINCESS
ANNE, 393 U.S. 175 (1968) THE INJUNCTION POWER HAS TODAY BECOME, WHEN
USED WITH THIS NEWLY LIBERATED CONTEMPT POWER, TOO AWESOME A WEAPON TO
PLACE IN THE HANDS OF ONE MAN.  THE SITUATION PRESENTED BY WALKER V.
BIRMINGHAM, 388 U.S. 307 (1967), IS BUT ONE EXAMPLE OF THE POWER NOW
MADE FREELY AVAILABLE TO TRIAL JUDGES. 

THE PROBATION CONDITIONS IMPOSED IN THIS CASE (SEE N. 6, ANTE)
ILLUSTRATE THE HIGH DEGREE OF CONTROL THAT COURTS, TOGETHER WITH THEIR
PROBATION OFFICERS, CAN MAINTAIN OVER THOSE BROUGHT BEFORE THEM.  THUS,
A COURT CAN REQUIRE DEFENDANTS TO KEEP "REASONABLE HOURS" AND, IN
ADDITION, PROHIBIT THEM FROM LEAVING THE COURT'S JURISDICTION WITHOUT
THE PROBATION OFFICER'S PERMISSION.  BY INSTRUCTING THE PROBATION
OFFICER TO CONSTRUE THE REASONABLE HOURS RESTRICTION STRICTLY AND TO
REFUSE PERMISSION TO LEAVE THE JURISDICTION, A TRIAL COURT CAN THEREBY
VIRTUALLY NULLIFY A PERSON'S FREEDOM OF MOVEMENT.  MOREOVER, A COURT
CAN INSIST THAT A DEFENDANT "WORK REGULARLY," AND THEREBY REGULATE HIS
WORKING LIFE AS WELL.  FINALLY, A COURT CAN ORDER A DEFENDANT TO
ASSOCIATE ONLY WITH "LAW-ABIDING" PERSONS, THEREBY SIGNIFICANTLY
LIMITING HIS FREEDOM OF ASSOCIATION, FOR THIS CONDITION, WHICH DOES NOT
LIMIT REVOCATION OF PROBATION TO "KNOWING ASSOCIATION," FORCES HIM TO
CHOOSE HIS ACQUAINTANCES AT HIS PERIL.     EVEN THESE CONDITIONS,
RESTRICTIVE AS THEY ARE, DO NOT REPRESENT ALL THE CONDITIONS AVAILABLE
TO A TRIAL JUDGE; HE MAY IMPOSE OTHERS, AND, OF COURSE, CHANGE OR ADD
TO THE CONDITIONS AT ANY TIME DURING THE FIVE-YEAR PERIOD.  /1/  THE
COURT'S ABILITY, FURTHER TO IMPOSE A SIX-MONTH PRISON TERM FOR A
PROBATION VIOLATION AT ANY TIME DURING THAT PERIOD, EVEN AFTER FOUR
YEARS AND 11 MONTHS, LEAVES NO ROOM FOR DOUBT AS TO THE POWER OF THE
PROBATION OFFICER TO ENFORCE THE RESTRICTIONS MOST SEVERELY.  AND
FINALLY, THE EASE WITH WHICH A PROBATION OFFICER CAN FIND A VIOLATION
OF SO MANY BROAD CONDITIONS ENHANCES THE VALUE OF THE PROBATION DEVICE
AS A HARASSMENT TACTIC.  ONCE HAVING FOUND A VIOLATION, OF COURSE, A
TRIAL COURT NEED NOT BOTHER WITH A FAIR ADVERSARY HEARING BEFORE
COMMITTING THE OFFENDERS TO PRISON, FOR MEMPA V. RHAY, 389 U.S. 128
(1967), DOES NOT REQUIRE COUNSEL AT PROBATION REVOCATION HEARINGS IN
MISDEMEANOR CASES. 

IF, IN HAMSTRINGING PROTEST GROUPS, A TRIAL JUDGE IS BOUND ONLY BY A
FIVE-YEAR MAXIMUM PROBATION PERIOD AND THE LIMITS OF HIS IMAGINATION IN
CONCEIVING RESTRICTIVE CONDITIONS, I WOULD AT LEAST REQUIRE THAT THOSE
ON THE RECEIVING END BE TRIED FIRST BY A JURY.  AND THE TREND MAY BE TO
ALLOW THE STATES EVEN MORE LEEWAY THAN FEDERAL COURTS, FOR THERE IS
NOTHING IN THE COURT'S OPINION TO PROHIBIT A STATE FROM ALLOWING MORE
THAN FIVE YEARS' PROBATION, OR AS MUCH AS 10 OR 15 YEARS.  THUS FAR, WE
HAVE NOT HELD THE STATES TO AS STRICT A STANDARD AS THE FEDERAL SYSTEM;
FOR WHILE WE HAVE RULED THAT NO CRIME PUNISHABLE BY MORE THAN SIX
MONTHS MAY BE TRIED WITHOUT A JURY IN THE FEDERAL COURTS (SEE CHEFF,
SUPRA), WE HAVE YET TO FIND A JURY NECESSARY FOR ANY CRIME PUNISHABLE
BY LESS THAN TWO YEARS IN STATE COURTS (SEE DUNCAN, SUPRA). 
FURTHERMORE, UNDER THE COURT'S PRACTICE OF LOOKING TO LEGISLATIVE
DEFINITIONS AND "EXISTING . . . PRACTICES IN THE NATION," DUNCAN,
SUPRA, AT 161, FOR INDICATIONS OF THE SERIOUSNESS OF CRIMES IN
DETERMINING WHEN THE RIGHT TO JURY ATTACHES, THE COURT MIGHT ACCEPT A
STATE'S LEGISLATIVE EFFORTS TO ALLOW AN INDEFINITE PERIOD OF PROBATION
FOR PROFESSED "PETTY" OFFENSES.  EVEN AT PRESENT MANY STATES ALLOW MORE
THAN FIVE YEARS' PROBATION, AND SOME STATES ALLOW TRIAL COURTS TO
IMPOSE UNLIMITED PROBATIONARY SENTENCES.  /2/

        II. 

THE PAINFUL ASPECT OF TODAY'S DECISION IS THAT ITS RATIONALE IS AN
IMPERMISSIBLE AS ITS CONSEQUENCES.  THE COURT'S HOLDING THAT
PETITIONER'S SENTENCE IS "WITHIN THE LIMITS OF THE CONGRESSIONAL
DEFINITION OF PETTY OFFENSES" IS NO LESS THAN ASTOUNDING.  IN THE FIRST
PLACE, CONGRESS ACTED QUITE WITHOUT REGARD TO THE CRIME CLASSIFICATIONS
SET OUT IN 1909 (THE PRESENT SECTION IS BASED ON THE ACT OF MARCH 4,
1909, C. 321, SEC. 335, 35 STAT. 1152) WHEN IT PASSED THE PROBATION
SYSTEM IN 1925 (ACT OF MARCH 4, 1925, C. 521, SEC. 1, 43 STAT. 1259). 
THERE IS SIMPLY NO INDICATION IN THE STATUTE ITSELF OR ITS LEGISLATIVE
HISTORY THAT 18 U.S.C. 3651 WAS INTENDED TO MODIFY, COMPLEMENT, ADD TO,
OR EVEN RELATE TO THE PETTY OFFENSE DEFINITION, OR ANY DEFINITION, IN
18 U.S.C. 1; THE REFERENCE TO CAPITAL OR LIFE SENTENCE CASES, FOR WHICH
PROBATION IS PROHIBITED, IS MADE IN 3651 ITSELF, WITHOUT CITATION TO 18
U.S.C. 1.  MORE IMPORTANTLY, HOWEVER, THERE IS EVERY INDICATION THAT
CONGRESS AFFIRMATIVELY DETERMINED THAT PROBATION SHOULD NOT AFFECT ITS
EARLIER DEFINITIONS BY MAKING PROBATION FREELY AVAILABLE TO VIRTUALLY
ALL CRIMES-- INCLUDING MOST FELONIES NOT THEREBY RENDERED "PETTY"
BECAUSE OF PROBATION'S IMPOSITION.  IN THE SECOND PLACE, EVEN IF
CONGRESS DID "ADD" PROBATION TO THE "PETTY" OFFENSE DEFINITION, THE
EXPANDED DEFINITION WOULD NOT NECESSARILY BE AS BINDING ON US AS THE
COURT SEEMS TO SUGGEST.  WE CANNOT, IT SEEMS TO ME, PLACE UNLIMITED
RELIANCE ON LEGISLATIVE DEFINITIONS AND "EXISTING . . . PRACTICES IN
THE NATION" AND THEREBY ALLOW CONGRESS AND THE STATES TO REWRITE THE
SIXTH AMENDMENT OF THE CONSTITUTION BY SIMPLY TERMING "PETTY" ANY
OFFENSE REGARDLESS OF THE UNDERLYING SENTENCE. 

THE COURT'S MISAPPREHENSION OF THE PROBATION STATUTE CAN BETTER BE
UNDERSTOOD BY ANALYZING FIRST HOW IT ARRIVED AT ITS DECISION.  IN
HOLDING THAT A TRIAL JUDGE, ACTING WITHOUT A JURY CONVICTION, CAN
SENTENCE A MAN TO SERVE AT LEAST FIVE YEARS ON PROBATION AND AN
ADDITIONAL SIX MONTHS, THE COURT PURPORTS TO RELY ON, AND NOT OVERRULE,
CHEFF, SUPRA, WHERE WE HELD THAT SIX MONTHS' IMPRISONMENT WAS THE
MAXIMUM SENTENCE THAT COULD BE IMPOSED WITHOUT A JURY IN FEDERAL
CASES.  WE ARRIVED AT THAT DETERMINATION BY SEEKING "OBJECTIVE
INDICATIONS OF THE SERIOUSNESS WITH WHICH SOCIETY REGARDS THE OFFENSE,"
ANTE, AT 148, THE STANDARD WE HAVE TRADITIONALLY USED IN DETERMINING
WHETHER A PARTICULAR CRIME CAN BE CLASSIFIED AS "PETTY" AND THUS TRIED
WITHOUT A JURY.  SEE DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617
(1937); DUNCAN V. LOUISIANA, SUPRA; BLOOM V. ILLINOIS, SUPRA.  AS THE
COURT NOTES, CHEFF FOUND THE "OBJECTIVE CRITERIA" BY ANALOGY TO 18
U.S.C. 1, THE CONGRESSIONAL DEFINITIONAL SECTION WHICH STATES THAT AN
OFFENSE PUNISHABLE BY SIX MONTHS OR LESS IS A "PETTY" OFFENSE, AND
FOLLOWED THAT DETERMINATION IN RULING THAT A SIX MONTHS', NONJURY
CONTEMPT SENTENCE WAS PERMISSIBLE.  THE COURT PURSUES THAT ANALOGY IN
THIS CASE.  THUS, IT ARGUES THAT SINCE CONGRESS HAS ALSO PROVIDED THAT
UP TO FIVE YEARS' PROBATION CAN BE IMPOSED FOR A "PETTY" OFFENSE,
APPARENTLY WITHOUT MAKING SUCH AN OFFENSE "SERIOUS" UNDER THE
DEFINITIONAL SECTION, PETITIONER, WHOSE SENTENCE FELL WITHIN THAT FIVE
YEAR LIMIT, WAS NOT ENTITLED TO A JURY TRIAL. 

SUCH A LEAP FROM THE DEFINITION OF PETTY OFFENSES IN 18 U.S.C. 1 TO
THE PROVISION FOR PROBATION IN 18 U.S.C. 3651 ASCRIBES TO CONGRESS A
DETERMINATION I AM CERTAIN IT DID NOT MAKE, AND MISCONSTRUES THE NATURE
OF THE PROBATION STATUTE.  THE PROBATIONARY SCHEME DOES NOT PURPORT TO
SET SPECIFIC SENTENCES FOR PARTICULAR CLASSES OF CRIMES, THUS EVINCING
AN "OBJECTIVE INDICATION" OF THE "SERIOUSNESS WITH WHICH SOCIETY
REGARDS THE OFFENSE," THE STANDARD WE HAVE USED IN DETERMINING WHEN THE
RIGHT TO JURY TRIAL ATTACHES.  RATHER, IT IS DESIGNED TO ALLOW A
SENTENCING JUDGE TO PUT ASIDE THE STATUTORILY PRESCRIBED PRISON TERM
AND TO TRY INSTEAD TO FASHION A SPECIFIC, AMELIORATIVE SENTENCE FOR THE
INDIVIDUAL CRIMINAL BEFORE THE COURT.  THE SENTENCE SHOULD BE
CONSISTENT WITH PROBATION'S BASIC PURPOSE OF PROVIDING "AN
INDIVIDUALIZED PROGRAM OFFERING A YOUNG OR UNHARDENED OFFENDER AN
OPPORTUNITY TO REHABILITATE HIMSELF WITHOUT INSTITUTIONAL CONFINEMENT,"
ROBERTS V. UNITED STATES, 320 U.S. 264, 272 (1943), BEFORE SUCH
IMPRISONMENT "SHOULD STAIN THE LIFE OF THE CONVICT," UNITED STATES V.
MURRAY, 275 U.S. 347, 357 (1928). 

THE FOCUS OF PROBATION IS NOT ON HOW SOCIETY VIEWS THE OFFENSE, BUT
ON HOW THE SENTENCING JUDGE VIEWS THE OFFENDER.  "THROUGH THE SOCIAL
INVESTIGATION OF THE PROBATION OFFICER AND THE POWER TO PLACE SUITABLE
CASES ON PROBATION," THE HOUSE JUDICIARY COMMITTEE STATED IN SUPPORT OF
THE FIRST PROBATION BILL TO BE SIGNED INTO LAW, "THE COURT IS ENABLED
TO DISCRIMINATE AND ADAPT ITS TREATMENT TO FIT THE CHARACTER AND
CIRCUMSTANCES OF THE INDIVIDUAL OFFENDER."  H.R. REP. NO. 423, 68TH
CONG.,1ST SESS., 2 (1924).  THE NECESSITY TO "INDIVIDUALIZE EACH CASE,
TO GIVE THAT CAREFUL, HUMANE AND COMPREHENSIVE CONSIDERATION TO THE
PARTICULAR SITUATION OF EACH OFFENDER," WE HAVE HELD, REQUIRES THE
"EXERCISE OF A BROAD DISCRETION" AND "AN EXCEPTIONAL DEGREE OF
FLEXIBILITY."  BURNS V. UNITED STATES, 287 U.S. 216, 220 (1932).  IN
EXERCISING THAT BROAD DISCRETION, OF COURSE, A SENTENCING JUDGE CAN
UTILIZE PROBATION IN ALL BUT CAPITAL OR LIFE SENTENCE CASES. 

IN ORIENTING THE PROBATION SYSTEM TOWARD THE INDIVIDUAL CRIMINAL AND
NOT THE CRIME ITSELF, AND IN MAKING IT AVAILABLE FOR FELONIES AND
MISDEMEANORS AS WELL AS PETTY OFFENSES, CONGRESS CLEARLY DID NOT INTEND
THE MAXIMUM FIVE-YEAR PROBATION PERIOD TO BE ANY INDICATION OF
SOCIETY'S VIEWS OF THE SERIOUSNESS OF CRIMES IN GENERAL, EXCEPT TO
PROVIDE THAT PROBATION IS INAPPROPRIATE FOR CAPITAL OR LIFE SENTENCE
CASES.  ALTHOUGH THE COURT HOLDS THAT "CONGRESS HAS NOT VIEWED THE
POSSIBILITY OF FIVE YEARS' PROBATION AS ONEROUS ENOUGH TO MAKE AN
OTHERWISE PETTY OFFENSE 'SERIOUS,'" PRESUMABLY THE COURT WOULD NOT BE
WILLING TO HOLD THAT THE UPPER LIMIT OF ONLY FIVE YEARS' PROBATION IS
LIGHT ENOUGH TO MAKE ANY SERIOUS OFFENSE "PETTY."  FOR I DO NOT TAKE
THE COURT'S OPINION TO MEAN THAT IN AREAS OF ECONOMIC AND PUBLIC HEALTH
REGULATION SUCH AS TAX, ANTITRUST, AND DRUG CONTROL, WHERE PROBATION IS
OFTEN GRANTED, A TRIAL JUDGE COULD DENY A DEFENDANT'S DEMAND FOR A JURY
TRIAL BY STATING AT THE OUTSET HIS INTENTION TO GRANT PROBATION WITH A
MAXIMUM OF SIX MONTHS' IMPRISONMENT ON VIOLATION OF ITS TERMS.  I RAISE
THE POSSIBILITY /3/  ONLY BECAUSE I THINK IT SHOWS THAT CONGRESS
ENACTED THE PROBATION SYSTEM QUITE WITHOUT REGARD TO THE "PETTY
SERIOUS" CRIME DISTINCTION, INTENDING THE SYSTEM TO HAVE NO IMPACT ON
LEGISLATIVE JUDGMENTS AS TO THE RELATIVE SERIOUSNESS OF CLASSES OF
CRIMES GENERALLY. 

IN VIEW OF THIS BACKGROUND, THE FACT THAT CONGRESS COULD NOT, IN ALL
EVENTS, LIMIT THE RIGHT TO A JURY TRIAL BY THE USE OF STATUTORY
"DEFINITIONS," AND THE DANGERS NOTED ABOVE IN ALLOWING A SIX-MONTHS
PLUS SENTENCE TO BE IMPOSED WITHOUT A JURY, I WOULD STAND BY THIS
COURT'S DECISION IN CHEFF, SUPRA, AND SAY THAT SIX MONTHS IS THE
MAXIMUM PERMISSIBLE NONJURY SENTENCE, WHETHER SERVED ON PROBATION OR IN
PRISON, OR BOTH.  THUS, ONLY A TWO MONTHS' JAIL TERM COULD BE IMPOSED
IN FEDERAL COURTS, FOR INSTANCE, IF PROBATION WERE REVOKED AFTER FOUR
MONTHS.  I DISSENT FROM THE COURT'S OPINION HOLDING OTHERWISE. 

/1/  IF ITS ONEROUS CONDITIONS MULTIPLIED, PROBATION COULD BE EVEN
MORE RESTRICTIVE THAN THE EMERGING PRISON WORK-RELEASE PROGRAMS. 

/2/  SEE THE APPENDIX TO THE GOVERNMENT'S BRIEF BEFORE THIS COURT
FOR A SURVEY OF STATE PROBATION LAW AND PRACTICES. 

/3/  THE ACTUAL QUESTION COULD NEVER ARISE, OF COURSE, UNDER THE
COURT'S PRESENT PRACTICE OF LOOKING, IN NONCONTEMPT CASES, TO THE
STATUTE FOR THE MAXIMUM PENALTY THAT COULD BE IMPOSED, RATHER THAN THE
SENTENCE ACTUALLY METED OUT, FOR ITS DETERMINATION THAT A JURY IS OR IS
NOT REQUIRED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

I CANNOT SAY WHAT IS AND WHAT IS NOT A "PETTY CRIME."  I CERTAINLY
BELIEVE, HOWEVER, THAT WHERE PUNISHMENT OF AS MUCH AS SIX MONTHS CAN BE
IMPOSED, I COULD NOT CLASSIFY THE OFFENSE AS "PETTY" IF THAT MEANS THAT
PEOPLE TRIED FOR IT ARE TO BE TRIED AS IF WE HAD NO BILL OF RIGHTS. 
ART. III, SEC. 2, OF THE CONSTITUTION PROVIDES THAT: 

     "THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT,
SHALL BE BY JURY . . . . " 

AND IN AMENDMENT VI IT IS PROVIDED THAT: 

     "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE

  RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY . . . .

  " 

NEITHER OF THESE PROVISIONS GIVES ANY SUPPORT FOR HOLDING THAT A
DEFENDANT CHARGED WITH A CRIME IS NOT ENTITLED TO A JURY TRIAL MERELY
BECAUSE A COURT THINKS THE CRIME IS A "PETTY" ONE.  I DO NOT DENY THAT
THERE MIGHT POSSIBLY BE SOME OFFENSES CHARGED FOR WHICH THE PUNISHMENT
IS SO MINUSCULE THAT IT MIGHT BE THOUGHT OF AS PETTY.  BUT TO MY WAY OF
THINKING, WHEN A MAN IS CHARGED BY A GOVERNMENTAL UNIT WITH CONDUCT FOR
WHICH THE GOVERNMENT CAN IMPOSE A PENALTY OF IMPRISONMENT FOR ANY
AMOUNT OF TIME, I DOUBT IF I COULD EVER HOLD IT PETTY.  (SEE MY DISSENT
IN DYKE V. TAYLOR IMPLEMENT MFG. CO., 391 U.S. 216, 223.)  NOR DO I
TAKE ANY STOCK IN THE IDEA THAT BY NAMING AN OFFENSE FOR WHICH A MAN
CAN BE IMPRISONED A "CONTEMPT," HE IS ANY THE LESS CHARGED WITH A
CRIME.  SEE GREEN V. UNITED STATES, 356 U.S. 165, 193 (DISSENTING
OPINION), AND UNITED STATES V. BARNETT, 376 U.S. 681, 724 (DISSENTING
OPINION).  THOSE WHO COMMIT OFFENSES AGAINST COURTS SHOULD BE NO LESS
ENTITLED TO THE BILL OF RIGHTS THAN THOSE WHO COMMIT OFFENSES AGAINST
THE PUBLIC IN GENERAL. 

FOR THESE REASONS I DISSENT FROM THE COURT'S HOLDING THAT THE
PETITIONER IN THIS CASE IS NOT ENTITLED TO A TRIAL BY JURY. 

JOHN B. OGDEN ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

PETER L. STRAUSS ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL VINSON, BEATRICE ROSENBERG, AND EDWARD FENIG. 

FRANK S. HOGAN, PRO SE, AND MICHAEL R. JUVILER FILED A BRIEF FOR THE
DISTRICT ATTORNEY OF NEW YORK COUNTY AS AMICUS CURIAE URGING
AFFIRMANCE. 
..END :














FRYAR V. OKLAHOMA, 395 U.S. 161 


       FRYAR V. OKLAHOMA ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF OKLAHOMA. 

        NO. 730, MISC.  DECIDED MAY 19, 1969. 


CERTIORARI GRANTED; 440 P.2D 204, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA FOR
FURTHER CONSIDERATION IN LIGHT OF SMITH V. HOOEY, 393 U.S. 374. 

G. T. BLANKENSHIP, ATTORNEY GENERAL OF OKLAHOMA, AND H. L. MCCONNEL,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :








THOMPSON V. TRAVELERS INSURANCE CO., 395 U.S. 161 


       THOMPSON V. TRAVELERS INSURANCE CO. ET AL.

  APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

NO. 1230.  DECIDED MAY 19, 1969. 


281 MINN. 547, 163 N.W.2D 289, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

T. EUGENE THOMPSON, APPELLANT, PRO SE. 

OSCAR C. ADAMSON II AND J. NEIL MORTON FOR APPELLEES TRAVELERS
INSURANCE CO. ET AL.
..END :








JONES V. ILLINOIS BY ITS ELECTORAL BOARD, 395 U.S. 162 


       JONES V. ILLINOIS BY ITS ELECTORAL BOARD. 

  APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

        NO. 1173.  DECIDED MAY 19, 1969. 


VACATED AND REMANDED. 

PER CURIAM. 

THE DECISION OF THE ILLINOIS SUPREME COURT HAVING BEEN RENDERED
PRIOR TO OUR DECISION IN MOORE V. OGILVIE, 394 U.S. 814, WHICH
OVERRULED MACDOUGALL V. GREEN, 335 U.S. 281, THE JUDGMENT IS VACATED
AND THE CAUSE REMANDED SO THAT IT CAN BE RECONSIDERED IN LIGHT OF THE
CHANGED CIRCUMSTANCES. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART WOULD AFFIRM THE
JUDGMENT. 

WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, AND FRANCIS T.
CROWE, ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :






BUCKLEY V. OHIO BY BARBUTO, 395 U.S. 163 


       BUCKLEY ET AL., DBA BUCKLEY'S AUTO WRECKING V. OHIO BY

           BARBUTO. 

        APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 1209.  DECIDED MAY 19, 1969. 


16 OHIO ST.2D 128, 243 N.E.2D 66, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

EDWARD D. WYNER FOR APPELLANTS. 

PAUL W. BROWN, ATTORNEY GENERAL OF OHIO, PRO SE, AND ROBERT D.
MACKLIN, ASSISTANT ATTORNEY GENERAL, FOR THE ATTORNEY GENERAL OF OHIO,
AND JAMES V. BARBUTO, PRO SE, APPELLEES. 
..END :




MOORE V. OGILVIE, 394 U.S. 814 


       MOORE ET AL. V. OGILVIE, GOVERNOR OF ILLINOIS, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS. 

 NO. 620.  ARGUED MARCH 27, 1969.-- DECIDED MAY 5, 1969. 


APPELLANTS, WHO WERE INDEPENDENT CANDIDATES FOR PRESIDENTIAL ELECTORS
FROM ILLINOIS IN THE 1968 ELECTION, SOUGHT DECLARATORY AND INJUNCTIVE
RELIEF FROM A DENIAL OF CERTIFICATION BY APPELLEES, MEMBERS OF THE
STATE'S ELECTORAL BOARD.  AN ILLINOIS STATUTE PROVIDES THAT NOMINATING
PETITIONS FOR INDEPENDENT CANDIDATES MUST HAVE 25,000 SIGNATURES,
INCLUDING 200 SIGNATURES FROM EACH OF AT LEAST 50 OF THE STATE'S 102
COUNTIES.  APPELLANTS' PETITIONS CONTAINED OVER 25,000 SIGNATURES, BUT
NOT 200 VOTERS FROM EACH OF 50 COUNTIES.  OF THE STATE'S REGISTERED
VOTERS, 93.4% RESIDE IN THE 49 MOST POPULOUS COUNTIES AND ONLY 6.6% IN
THE REMAINING 53 COUNTIES.  THE DISTRICT COURT DISMISSED THE COMPLAINT,
RELYING ON MACDOUGALL V. GREEN, 335 U.S. 281.  HELD: 

1.  THE CASE IS NOT MOOT, AS THE BURDEN WHICH MACDOUGALL V. GREEN,
SUPRA, PLACED ON NOMINATIONS FOR STATEWIDE OFFICES CONTROLS FUTURE
ELECTIONS, AND REFLECTS A CONTINUING FEDERAL-STATE CONTROVERSY WHICH
NEEDS RESOLUTION.  P. 816. 

2.  THE ILLINOIS STATUTE, WHICH IS AN INTEGRAL PART OF THE ELECTION
PROCESS, APPLIES A RIGID, ARBITRARY FORMULA TO SPARSELY SETTLED
COUNTIES AND POPULOUS COUNTIES ALIKE, AND THUS DISCRIMINATES AGAINST
THE RESIDENTS OF THE POPULOUS COUNTIES IN THE EXERCISE OF THEIR
POLITICAL RIGHTS IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  MACDOUGALL V. GREEN, SUPRA, OVERRULED.  PP. 816
819. 

293 F.SUPP.  411, REVERSED. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BRENNAN. 

THIS IS A SUIT FOR DECLARATORY RELIEF AND FOR AN INJUNCTION, 28
U.S.C. 2201, 2202, BROUGHT BY APPELLANTS WHO ARE INDEPENDENT CANDIDATES
FOR THE OFFICES OF ELECTORS OF PRESIDENT AND VICE PRESIDENT OF THE
UNITED STATES FROM ILLINOIS.  THE DEFENDANTS OR APPELLEES ARE MEMBERS
OF THE ILLINOIS ELECTORAL BOARD.  ILL. REV. STAT., C. 46, SECS. 7-14. 
IN 1968 APPELLANTS FILED WITH APPELLEES PETITIONS CONTAINING THE NAMES
OF 26,500 QUALIFIED VOTERS WHO DESIRED THAT APPELLANTS BE NOMINATED. 
THE APPELLEES RULED THAT APPELLANTS COULD NOT BE CERTIFIED TO THE
COUNTY CLERKS FOR THE NOVEMBER 1968 ELECTION BECAUSE OF A PROVISO ADDED
IN 1935 TO AN ILLINOIS STATUTE REQUIRING THAT AT LEAST 25,000 ELECTORS
SIGN A PETITION TO NOMINATE SUCH CANDIDATES.  THE PROVISO READS: 

"THAT INCLUDED IN THE AGGREGATE TOTAL OF 25,000 SIGNATURES ARE THE
SIGNATURES OF 200 QUALIFIED VOTERS FROM EACH OF AT LEAST 50 COUNTIES." 
ILL. REV. STAT., C. 46, SEC. 10-3 (1967). 

THREE-JUDGE DISTRICT COURT WAS CONVENED, 28 U.S.C. 2281, 2284,
WHICH, FEELING BOUND BY MACDOUGALL V. GREEN, 335 U.S. 281, DISMISSED
THE COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION.  293 F.SUPP. 
411.  THE CASE IS HERE ON APPEAL.  28 U.S.C. 1253. 

ON OCTOBER 8, 1968, THE SAME DAY THE CASE WAS DOCKETED, APPELLANTS
FILED A MOTION TO ADVANCE AND EXPEDITE THE HEARING AND DISPOSITION OF
THE CAUSE.  APPELLEES OPPOSED THE MOTION.  ON OCTOBER 14, 1968, WE
ENTERED THE FOLLOWING ORDER: 

     "BECAUSE OF THE REPRESENTATION OF THE STATE OF ILLINOIS THAT

  'IT WOULD BE A PHYSICAL IMPOSSIBILITY' FOR THE STATE 'TO

  EFFECTUATE THE RELIEF WHICH THE APPELLANTS SEEK,' THE 'MOTION TO

  ADVANCE AND EXPEDITE THE HEARING AND DISPOSITION OF THIS CAUSE'

  IS DENIED.  MR. JUSTICE FORTAS WOULD GRANT THE MOTION."  393 U.S.

  814. 

APPELLEES URGED IN A MOTION TO DISMISS THAT SINCE THE NOVEMBER 5,
1968, ELECTION HAS BEEN HELD, THERE IS NO POSSIBILITY OF GRANTING ANY
RELIEF TO APPELLANTS AND THAT THE APPEAL SHOULD BE DISMISSED.  BUT
WHILE THE 1968 ELECTION HAS BEEN HELD, THERE IS NO POSSIBILITY OF
GRANTING ANY RELIEF TO APPELLANTS AND THAT THE APPEAL SHOULD BE
DISMISSED.  BUT WHILE THE 1968 ELECTION IS OVER, THE BURDEN WHICH
MACDOUGALL V. GREEN, SUPRA, ALLOWED TO BE PLACED ON THE NOMINATION OF
CANDIDATES FOR STATEWIDE OFFICES REMAINS AND CONTROLS FUTURE ELECTIONS,
AS LONG AS ILLINOIS MAINTAINS HER PRESENT SYSTEM AS SHE HAS DONE SINCE
1935.  THE PROBLEM IS THEREFORE "CAPABLE OF REPETITION, YET EVADING
REVIEW," SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE COMMERCE
COMMISSION, 219 U.S. 498, 515.  THE NEED FOR ITS RESOLUTION THUS
REFLECTS A CONTINUING CONTROVERSY IN THE FEDERAL-STATE AREA WHERE OUR
"ONE MAN, ONE VOTE" DECISIONS HAVE THRUST.  WE TURN THEN TO THE
MERITS. 

MACDOUGALL V. GREEN IS INDISTINGUISHABLE FROM THE PRESENT
CONTROVERSY.  THE ALLEGATIONS IN THAT CASE WERE THAT 52% OF THE STATE'S
REGISTERED VOTERS WERE RESIDENTS OF COOK COUNTY ALONE.  87% WERE
RESIDENTS OF THE 49 MOST POPULOUS COUNTIES, AND ONLY 13% RESIDED IN THE
53 LEAST POPULOUS COUNTIES.  THE ARGUMENT WAS THAT A NOMINATING
PROCEDURE SO WEIGHTED VIOLATES THE EQUAL PROTECTION CLAUSE. 

TODAY, IN CONTRAST, 93.4% OF THE STATE'S REGISTERED VOTERS RESIDE IN
THE 49 MOST POPULOUS COUNTIES, AND ONLY 6.6% ARE RESIDENT IN THE
REMAINING 53 COUNTIES.  THE CONSTITUTIONAL ARGUMENT, HOWEVER, REMAINS
THE SAME. 

FIVE MEMBERS OF THE COURT HELD IN MACDOUGALL THAT A STATE HAS "THE
POWER TO ASSURE A PROPER DIFFUSION OF POLITICAL INITIATIVE AS BETWEEN
ITS THINLY POPULATED COUNTIES AND THOSE HAVING CONCENTRATED MASSES, IN
VIEW OF THE FACT THAT THE LATTER HAVE PRACTICAL OPPORTUNITIES FOR
EXERTING THEIR POLITICAL WEIGHT AT THE POLLS NOT AVAILABLE TO THE
FORMER."  335 U.S., AT 284.  THREE MEMBERS OF THE COURT DISSENTED ON
THE GROUND THAT THE NOMINATING PROCEDURE VIOLATED THE EQUAL PROTECTION
CLAUSE.  ONE MEMBER OF THE COURT VOTED NOT TO EXERCISE THIS COURT'S
JURISDICTION IN EQUITY TO RESOLVE THE DISPUTE. 

WHILE THE MAJORITY CITED COLEGROVE V. GREEN, 328 U.S. 549, AS THEIR
AUTHORITY FOR DENYING RELIEF AND WHILE A FEW WHO TOOK PART IN COLEGROVE
PUT THIS TYPE OF QUESTION IN THE "POLITICAL" AS DISTINGUISHED FROM THE
"JUSTICIABLE" CATEGORY, 328 U.S., AT 552, THAT MATTER WAS
AUTHORITATIVELY RESOLVED IN BAKER V. CARR, 369 U.S. 186, 202.  WHEN A
STATE MAKES CLASSIFICATIONS OF VOTERS WHICH FAVOR RESIDENTS OF SOME
COUNTIES OVER RESIDENTS OF OTHER COUNTIES, A JUSTICIABLE CONTROVERSY IS
PRESENTED.  369 U.S., AT 198-204. 

WHEN WE STRUCK DOWN THE GEORGIA COUNTY-UNIT SYSTEM IN STATEWIDE
PRIMARY ELECTIONS, WE SAID: 

"HOW THEN CAN ONE PERSON BE GIVEN TWICE OR TEN TIMES THE VOTING
POWER OF ANOTHER PERSON IN A STATEWIDE ELECTION MERELY BECAUSE HE LIVES
IN A RURAL AREA OR BECAUSE HE LIVES IN THE SMALLEST RURAL COUNTY?  ONCE
THE GEOGRAPHICAL UNIT FOR WHICH A REPRESENTATIVE IS TO BE CHOSEN IS
DESIGNATED, ALL WHO PARTICIPATE IN THE ELECTION ARE TO HAVE AN EQUAL
VOTE-- WHATEVER THEIR RACE, WHATEVER THEIR SEX, WHATEVER THEIR
OCCUPATION, WHATEVER THEIR INCOME, AND WHATEVER THEIR HOME MAY BE IN
THAT GEOGRAPHICAL UNIT.  THIS IS REQUIRED BY THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT."  GRAY V. SANDERS, 372 U.S. 368,
379. 

REYNOLDS V. SIMS, 377 U.S. 533, HELD THAT A STATE IN AN
APPORTIONMENT OF STATE REPRESENTATIVES AND SENATORS AMONG DISTRICTS AND
COUNTIES COULD NOT DEPRIVE VOTERS IN THE MORE POPULOUS COUNTIES OF
THEIR PROPORTIONATE SHARE OF REPRESENTATIVES AND SENATORS. 

"THE RIGHT TO VOTE FREELY FOR THE CANDIDATE OF ONE'S CHOICE IS OF
THE ESSENCE OF A DEMOCRATIC SOCIETY, AND ANY RESTRICTIONS ON THAT RIGHT
STRIKE AT THE HEART OF REPRESENTATIVE GOVERNMENT.  AND THE RIGHT OF
SUFFRAGE CAN BE DENIED BY A DEBASEMENT OR DILUTION OF THE WEIGHT OF A
CITIZEN'S VOTE JUST AS EFFECTIVELY AS BY WHOLLY PROHIBITING THE FREE
EXERCISE OF THE FRANCHISE."  377 U.S., AT 555. 

WE HAVE SAID ENOUGH TO INDICATE WHY MACDOUGALL V. GREEN IS OUT OF
LINE WITH OUR RECENT APPORTIONMENT CASES.  THE USE OF NOMINATING
PETITIONS BY INDEPENDENTS TO OBTAIN A PLACE ON THE ILLINOIS BALLOT IS
AN INTEGRAL PART OF HER ELECTIVE SYSTEM.  SEE PEOPLE V. ELECTION
COMMISSIONERS, 221 ILL. 9, 18, 77 N.E. 321, 323.  ALL PROCEDURES USED
BY A STATE AS AN INTEGRAL PART OF THE ELECTION PROCESS MUST PASS MUSTER
AGAINST THE CHARGES OF DISCRIMINATION OR OF ABRIDGMENT OF THE RIGHT TO
VOTE.  UNITED STATES V. CLASSIC, 313 U.S. 299, 314-318; SMITH V.
ALLWRIGHT, 321 U.S. 649, 664. 

DUSCH V. DAVIS, 387 U.S. 112, IS NOT RELEVANT TO THE PROBLEM OF THIS
CASE.  THERE EACH COUNCILMAN WAS REQUIRED TO BE A RESIDENT OF THE
BOROUGH FROM WHICH HE WAS ELECTED.  LIKE THE RESIDENCE REQUIREMENT FOR
STATE SENATORS FROM A MULTI-DISTRICT COUNTY (FORTSON V. DORSEY, 379
U.S. 433), THE PLACE OF RESIDENCE DID NOT MARK THE VOTING UNIT; FOR IN
DUSCH ALL THE ELECTORS IN THE CITY VOTED FOR EACH COUNCILMAN. 

IT IS NO ANSWER TO THE ARGUMENT UNDER THE EQUAL PROTECTION CLAUSE
THAT THIS LAW WAS DESIGNED TO REQUIRE STATEWIDE SUPPORT FOR LAUNCHING A
NEW POLITICAL PARTY RATHER THAN SUPPORT FROM A FEW LOCALITIES.  THIS
LAW APPLIES A RIGID, ARBITRARY FORMULA TO SPARSELY SETTLED COUNTIES AND
POPULOUS COUNTIES ALIKE, CONTRARY TO THE CONSTITUTIONAL THEME OF
EQUALITY AMONG CITIZENS IN THE EXERCISE OF THEIR POLITICAL RIGHTS.  THE
IDEA THAT ONE GROUP CAN BE GRANTED GREATER VOTING STRENGTH THAN ANOTHER
IS HOSTILE TO THE ONE MAN, ONE VOTE BASIS OF OUR REPRESENTATIVE
GOVERNMENT. 

UNDER THIS ILLINOIS LAW THE ELECTORATE IN 49 OF THE COUNTIES WHICH
CONTAIN 93.4% OF THE REGISTERED VOTERS MAY NOT FORM A NEW POLITICAL
PARTY AND PLACE ITS CANDIDATES ON THE BALLOT.  YET 25,000 OF THE
REMAINING 6.6% OF REGISTERED VOTERS PROPERLY DISTRIBUTED AMONG THE 53
REMAINING COUNTIES MAY FORM A NEW PARTY TO ELECT CANDIDATES TO OFFICE. 
THIS LAW THUS DISCRIMINATES AGAINST THE RESIDENTS OF THE POPULOUS
COUNTIES OF THE STATE IN FAVOR OF RURAL SECTIONS.  IT, THEREFORE, LACKS
THE QUALITY TO WHICH THE EXERCISE OF POLITICAL RIGHTS IN ENTITLED UNDER
THE FOURTEENTH AMENDMENT. 

MACDOUGALL V. GREEN IS OVERRULED. 

              REVERSED. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN JOINS,
DISSENTING. 

I CANNOT JOIN IN THE COURT'S CASUAL EXTENSION OF THE "ONE VOTER, ONE
VOTE" SLOGAN TO A CASE THAT INVOLVES NEITHER VOTERS, VOTES, NOR EVEN AN
ONGOING DISPUTE. 

FIRST OF ALL, THE CASE IS MOOT.  THE APPELLANTS BROUGHT THIS ACTION
MERELY AS PROSPECTIVE "CANDIDATES FOR THE OFFICES OF ELECTORS OF
PRESIDENT AND VICE-PRESIDENT OF THE UNITED STATES FROM THE STATE OF
ILLINOIS TO BE VOTED ON AT THE GENERAL ELECTION TO BE HELD ON NOVEMBER
5, 1968."  BUT THE 1968 ELECTION IS NOW HISTORY, AND NO RELIEF RELATING
TO ITS OUTCOME IS SOUGHT.  IN THE ABSENCE OF ANY ASSERTION THAT THE
APPELLANTS INTEND TO PARTICIPATE AS CANDIDATES IN ANY FUTURE ILLINOIS
ELECTION, THE COURT'S REFERENCE TO CASES INVOLVING "CONTINUING
CONTROVERSIES" BETWEEN THE PARTIES IS WIDE OF THE MARK.  CF. GOLDEN V.
ZWICKLER, ANTE, P. 103.  THERE SIMPLY REMAINS NO JUDICIALLY COGNIZABLE
DISPUTE IN THIS CASE.  SINCE, HOWEVER, THE COURT REACHES A CONTRARY
CONCLUSION, I SHALL INDICATE BRIEFLY THE REASONS FOR MY DISAGREEMENT
WITH ITS HOLDING ON THE MERITS. 

THE LEGISLATIVE APPORTIONMENT CASES, UPON WHICH THE COURT PLACES ITS
ENTIRE RELIANCE, WERE DECIDED ON THE THEORY THAT VOTERS RESIDING IN
"UNDERREPRESENTED" ELECTORAL DISTRICTS WERE DENIED EQUAL PROTECTION. 

"OVERWEIGHTING AND OVERVALUATION OF THE VOTES OF THOSE LIVING HERE
HAS THE CERTAIN EFFECT OF DILUTION AND UNDERVALUATION OF THE VOTES OF
THOSE LIVING THERE."  REYNOLDS V. SIMS, 377 U.S. 533, 563. 

IN THIS CASE, BY CONTRAST, THE APPELLANTS HAVE SUED MERELY AS
PROSPECTIVE CANDIDATES FOR OFFICE.  THEY CLAIM NO IMPAIRMENT WHATEVER
OF ANY INTERESTS THEY MIGHT HAVE AS VOTERS; INDEED, THEIR COMPLAINT
CONTAINS NO ALLEGATION THAT ANY OF THEM IS IN FACT A QUALIFIED ILLINOIS
VOTER.  UNDETERRED BY THE APPELLANT'S FAILURE TO EXPLAIN HOW OR AS
AGAINST WHOM THEY THEMSELVES ARE DENIED EQUAL PROTECTION, HOWEVER, THE
COURT REACHES OUT TO HOLD THAT THIS STATUTE "DISCRIMINATES AGAINST THE
RESIDENTS OF THE POPULOUS COUNTIES OF THE STATE IN FAVOR OR RURAL
STATE" HAVE ASSERTED ANY RIGHTS, THE COURT'S DECISION REPRESENTS AT
BEST AN ADVISORY VINDICATION OF INTERESTS NOT INVOLVED IN THIS CASE. 

EVEN IF THE INTERESTS OF VOTERS IN ILLINOIS'"POPULOUS COUNTIES"
WERE ACTUALLY REPRESENTED HERE, THE COURT'S CONCLUSION WOULD STILL BE
COMPLETELY UNJUSTIFIED.  REYNOLDS V. SIMS, SUPRA, AND ITS OFFSPRING AT
LEAST INVOLVED SITUATIONS IN WHICH THE "DEBASEMENT" OR "DILUTION" OF
VOTING POWER FOUND BY THE COURT WAS THE "CERTAIN" RESULT OF POPULATION
VARIATIONS AMONG ELECTORAL DISTRICTS.  UNDER THE ILLINOIS STATUTE NOW
BEFORE US, HOWEVER, NO INJURY WHATEVER IS SUFFERED BY VOTERS IN HEAVILY
POPULATED AREAS SO LONG AS THEIR FAVORED CANDIDATES ARE ABLE TO SECURE
PLACES ON THE BALLOT.  AND THERE IS ABSOLUTELY NO INDICATION IN THE
RECORD THAT THE APPELLANTS COULD NOT, IF THEY HAD MADE THE EFFORT, HAVE
EASILY SATISFIED ILLINOIS' 50-COUNTY, 200-SIGNATURE REQUIREMENT. 
INDEED, THERE IS NO SUGGESTION THAT THE COUNTIES FROM WHICH THE
APPELLANTS DREW THEIR SUPPORT WERE "POPULOUS" RATHER THAN "RURAL."  THE
RATIONALE OF REYNOLDS V. SIMS SIMPLY DOES NOT CONTROL THIS CASE. 

ANY RELIANCE BY THE COURT ON WILLIAMS V. RHODES, 393 U.S. 23, WOULD
ALSO BE MISPLACED.  THAT CASE INVOLVED AN OHIO REQUIREMENT THAT NEW
POLITICAL PARTIES SECURE THE SUPPORT OF OVER 433,000 PERSONS-- 15% OF
THE ELECTORATE-- BEFORE THEIR CANDIDATES COULD APPEAR ON THE BALLOT. 
HERE, THE 25,000 SIGNATURES REQUIRED BY ILLINOIS REPRESENT ONLY ABOUT
ONE-HALF OF ONE PERCENT OF THE TOTAL NUMBER OF ILLINOIS VOTERS-- A
PERCENTAGE REQUIREMENT PERMISSIBLE, ONE WOULD HOPE, UNDER ANY VIEW OF
THE RHODES CASE.  NOR DO THE APPELLANTS MAKE ANY SHOWING THAT SECURING
200 SIGNATURES IN LESS THAN HALF OF THE STATE'S COUNTIES WOULD BE A
BURDEN AT ALL COMPARABLE TO THAT INVOLVED IN WILLIAMS V. RHODES. 

THE COURT HELD IN MACDOUGALL V. GREEN, 335 U.S. 281, IN SUSTAINING
THE VERY STATUTORY REQUIREMENT HERE AT ISSUE, /1/  THAT ILLINOIS HAD
PURSUED AN "ALLOWABLE STATE POLICY (OF) REQUIRING) THAT CANDIDATES FOR
STATE-WIDE OFFICE SHOULD HAVE SUPPORT NOT LIMITED TO A CONCENTRATED
LOCALITY."  ID., AT 283.  THAT CONCLUSION SEEMS TO ME TO BE NO LESS
SOUND TODAY THAN IT WAS AT THE TIME OF THE MACDOUGALL DECISION.  /2/
ILLINOIS' POLICY IS, IN FACT, NOT AT ALL UNLIKE THAT UPHELD BY THE
COURT ONLY TWO TERMS AGO IN DUSCH V. DAVIS, 387 U.S. 112, IN WHICH A
DISTRICT-RESIDENCE REQUIREMENT IMPOSED UPON MUNICIPAL OFFICERS DESPITE
POPULATION VARIATIONS AMONG DISTRICTS WAS NEVERTHELESS HELD PROPER AS
REASONABLY "REFLECTING) A DETENTE BETWEEN URBAN AND RURAL COMMUNITIES .
. . "  ID., AT 117.  CF. LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY, 377
U.S. 713, 744 (STEWART, J., DISSENTING); REYNOLDS V. SIMS, SUPRA, AT
589 (HARLAN, J., DISSENTING). 

I RESPECTFULLY DISSENT. 

/1/  MACDOUGALL INVOLVED ILL. REV. STAT., C. 46, SEC. 10-2, RELATING
TO BALLOT POSITION FOR CANDIDATES OF NEW POLITICAL PARTIES; ILL. REV.
STAT., C. 46, SEC. 10-3, INVOLVED HERE, IMPOSES IDENTICAL SIGNATURE
REQUIREMENTS FOR INDEPENDENT CANDIDATES.     /2/  WHILE MACDOUGALL
INVOLVED CANDIDATES FOR VARIOUS OFFICES, THE APPELLANTS HERE ALL SOUGHT
ELECTION AS PRESIDENTIAL ELECTORS.  SEE U.S. CONST., ART. II, SEC. 1: 

"EACH STATE SHALL APPOINT, IN SUCH MANNER AS THE LEGISLATURE THEREOF
MAY DIRECT, A NUMBER OF ELECTORS, EQUAL TO THE WHOLE NUMBER OF SENATORS
AND REPRESENTATIVES TO WHICH THE STATE MAY BE ENTITLED IN THE CONGRESS
. . . "  (EMPHASIS ADDED.) 

RICHARD F. WATT ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WERE RICHARD L. MANDEL AND IRA A. KIPNIS. 

JOHN J. O'TOOLE AND RICHARD E. FRIEDMAN, ASSISTANT ATTORNEYS GENERAL
OF ILLINOIS, ARGUED THE CAUSE FOR APPELLEES.  WITH THEM ON THE BRIEF
WAS WILLIAM J. SCOTT, ATTORNEY GENERAL. 
..END :





















KRAMER V. CARIBBEAN MILLS, 394 U.S. 823 


       KRAMER V. CARIBBEAN MILLS, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 FIFTH CIRCUIT. 

        NO. 156.  ARGUED JANUARY 23, 1969.-- DECIDED MAY 5, 1969. 


RESPONDENT, A HAITIAN CORPORATION, CONTRACTED WITH A PANAMANIAN
CORPORATION TO PURCHASE SOME OF THE LATTER'S STOCK FOR AN $85,000 DOWN
PAYMENT AND $165,000 IN 12 ANNUAL INSTALLMENTS.  NO INSTALLMENT
PAYMENTS WERE MADE, DESPITE DEMANDS BY THE PANAMANIAN COMPANY, WHICH
THEREAFTER ASSIGNED ITS INTEREST IN THE CONTRACT TO PETITIONER, A TEXAS
ATTORNEY, FOR $1.  BY A SEPARATE AGREEMENT PETITIONER PROMISED TO PAY
THE PANAMANIAN COMPANY 95% OF ANY NET RECOVERY "SOLELY AS A BONUS." 
PETITIONER FILED A DIVERSITY ACTION AGAINST RESPONDENT IN THE DISTRICT
COURT AND OBTAINED A JURY VERDICT FOR $165,000.  THAT COURT DENIED
RESPONDENT'S MOTION TO DISMISS FOR WANT OF JURISDICTION.  THE COURT OF
APPEALS REVERSED, FINDING THAT THE ASSIGNMENT WAS "IMPROPERLY OR
COLLUSIVELY MADE" WITHIN THE MEANING OF 28 U.S.C. 1359.  HELD:  THE
ASSIGNMENT WAS "IMPROPERLY OR COLLUSIVELY MADE" WITHIN THE MEANING OF
SEC. 1359, AS THE "MANUFACTURE OF FEDERAL JURISDICTION" WAS THE VERY
THING CONGRESS INTENDED TO PREVENT BY THE ENACTMENT OF SEC. 1359 AND
ITS PREDECESSORS.  PP. 825-830. 

(A) THE LEGALITY OF THE ASSIGNMENT UNDER TEXAS LAW DOES NOT RENDER
IT VALID FOR PURPOSES OF FEDERAL JURISDICTION, AS THE EXISTENCE OF
FEDERAL JURISDICTION IS A MATTER OF FEDERAL, NOT STATE, LAW.  P. 829. 

(BSECTION 1359 APPLIES TO DIVERSITY JURISDICTION ARISING FROM THE
ALIENAGE OF A PARTY AS WELL AS THAT BASED ON RESIDENCE IN DIFFERENT
STATES.  PP. 829-830. 

392 F.2D 387, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION PRESENTED BY THIS CASE IS WHETHER THE FEDERAL
DISTRICT COURT IN WHICH IT WAS BROUGHT HAD JURISDICTION OVER THE CAUSE,
OR WHETHER THAT COURT WAS DEPRIVED OF JURISDICTION BY 28 U.S.C. 1359. 
THAT SECTION PROVIDES: 

     "A DISTRICT COURT SHALL NOT HAVE JURISDICTION OF A CIVIL
ACTION

  IN WHICH ANY PARTY, BY ASSIGNMENT OR OTHERWISE, HAS BEEN

  IMPROPERLY OR COLLUSIVELY MADE OR JOINED TO INVOKE THE

  JURISDICTION OF SUCH COURT." 

THE FACTS WERE THESE.  RESPONDENT CARIBBEAN MILLS, INC. (CARIBBEAN)
IS A HAITIAN CORPORATION.  IN MAY 1959 IT ENTERED INTO A CONTRACT WITH
AN INDIVIDUAL NAMED KELLY AND THE PANAMA AND VENEZUELA FINANCE COMPANY
(PANAMA), A PANAMANIAN CORPORATION.  THE AGREEMENT PROVIDED THAT
CARIBBEAN WOULD PURCHASE FROM PANAMA 125 SHARES OF CORPORATE STOCK, IN
RETURN FOR PAYMENT OF $85,000 DOWN AND AN ADDITIONAL $165,000 IN 12
ANNUAL INSTALLMENTS. 

NO INSTALLMENT PAYMENTS EVER WERE MADE, DESPITE REQUESTS FOR PAYMENT
BY PANAMA.  IN 1964, PANAMA ASSIGNED ITS ENTIRE INTEREST IN THE 1959
CONTRACT TO PETITIONER KRAMER, AN ATTORNEY IN WICHITA FALLS, TEXAS. 
THE STATED CONSIDERATION WAS $1.  BY A SEPARATE AGREEMENT DATED THE
SAME DAY, KRAMER PROMISED TO PAY BACK TO PANAMA 95% OF ANY NET RECOVERY
ON THE ASSIGNED CAUSE OF ACTION, /1/  "SOLELY AS A BONUS." 

KRAMER SOON THEREAFTER BROUGHT SUIT AGAINST CARIBBEAN FOR $165,000 IN
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS,
ALLEGING DIVERSITY OF CITIZENSHIP BETWEEN HIMSELF AND CARIBBEAN.  /2/
THE DISTRICT COURT DENIED CARIBBEAN'S MOTION TO DISMISS FOR WANT OF
JURISDICTION.  THE CASE PROCEEDED TO TRIAL, AND A JURY RETURNED A
$165,000 VERDICT IN FAVOR OF KRAMER. 

ON APPEAL, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED,
HOLDING THAT THE ASSIGNMENT WAS "IMPROPERLY OR COLLUSIVELY MADE" WITHIN
THE MEANING OF 28 U.S.C. 1359, AND THAT IN CONSEQUENCE THE DISTRICT
COURT LACKED JURISDICTION.  WE GRANTED CERTIORARI, 393 U.S. 819
(1968).  FOR REASONS WHICH FOLLOW, WE AFFIRM THE JUDGMENT OF THE COURT
OF APPEALS. 

        I. 

THE ISSUE BEFORE US IS WHETHER KRAMER WAS "IMPROPERLY OR COLLUSIVELY
MADE" A PARTY "TO INVOKE THE JURISDICTION" OF THE DISTRICT COURT,
WITHIN THE MEANING OF 28 U.S.C. 1359.  WE LOOK FIRST TO THE LEGISLATIVE
BACKGROUND. 

REVISION OF THE JUDICIAL CODE.  PRIOR TO THAT TIME, THE USE OF DEVICES
TO CREATE DIVERSITY WAS REGULATED BY TWO FEDERAL STATUTES.  THE FIRST,
KNOWN AS THE "ASSIGNEE CLAUSE," PROVIDED THAT, WITH CERTAIN EXCEPTIONS
NOT HERE RELEVANT: 

"NO DISTRICT COURT SHALL HAVE COGNIZANCE OF ANY SUIT . . . TO
RECOVER UPON ANY PROMISSORY NOTE OR OTHER CHOSE INACTION IN FAVOR OF
ANY ASSIGNEE, . . . UNLESS SUCH SUIT MIGHT HAVE BEEN PROSECUTED IN SUCH
COURT . . . IF NO ASSIGNMENT HAD BEEN MADE."  /3/ 

THE SECOND PRE-1948 STATUTE, 28 U.S.C. 80 (1940 ED.), /4/  STATED
THAT A DISTRICT COURT SHOULD DISMISS AN ACTION WHENEVER: 

"IT SHALL APPEAR TO THE SATISFACTION OF THE . . . COURT . . . THAT
SUCH SUIT DOES NOT REALLY AND SUBSTANTIALLY INVOLVE A DISPUTE OR
CONTROVERSY PROPERLY WITHIN THE JURISDICTION OF (THE) COURT, OR THAT
THE PARTIES TO SAID SUIT HAVE BEEN IMPROPERLY OR COLLUSIVELY MADE OR
JOINED . . . FOR THE PURPOSE OF CREATING (FEDERAL JURISDICTION)." 

AS PART OF THE 1948 REVISION, SEC. 80 WAS AMENDED TO PRODUCE THE
PRESENT SEC. 1359.  THE ASSIGNEE CLAUSE WAS SIMULTANEOUSLY REPEALED. 
THE REVISER'S NOTE DESCRIBES THE AMENDED ASSIGNEE CLAUSE AS A "JUMBLE
OF LEGISLATIVE JARGON,'"  /5/  AND STATES THAT "(THE REVISED SECTION
CHANGES THIS CLAUSE BY CONFINING ITS APPLICATION TO CASES WHEREIN THE
ASSIGNMENT IS IMPROPERLY OR COLLUSIVELY MADE . . . FURTHERMORE, . . .
THE ORIGINAL PRUPOSE OF (THE ASSIGNEE) CLAUSE IS BETTER SERVED BY
SUBSTANTIALLY FOLLOWING SECTION 80."  THAT PURPOSE WAS SAID TO BE "TO
PREVENT THE MANUFACTURE OF FEDERAL JURISDICTION BY THE DEVICE OF
ASSIGNMENT."  IBID.

        II. 

ONLY A SMALL NUMBER OF CASES DECIDED UNDER SEC. 1359 HAVE INVOLVED
DIVERSITY JURISDICTION BASED ON ASSIGNMENTS, /6/  AND THIS COURT HAS
NOT CONSIDERED THE MATTER SINCE THE 1948 REVISION.  BECAUSE THE
APPROACH OF THE FORMER ASSIGNEE CLAUSE WAS TO FORBID THE GROUNDING OF
JURISDICTION UPON ANY ASSIGNMENT, REGARDLESS OF ITS CIRCUMSTANCES OR
PURPOSE, /7/  DECISIONS UNDER THAT CLAUSE ARE OF LITTLE ASSISTANCE. 
HOWEVER, DECISIONS OF THIS COURT UNDER THE OTHER PREDECESSOR STATUTE,
28 U.S.C. 80 (1949 ED.), SEEM SQUARELY IN POINT.  THESE DECISIONS,
TOGETHER WITH THE EVIDENT PURPOSE OF SEC. 1359, LEAD US TO CONCLUDE
THAT THE COURT OF APPEALS WAS CORRECT IN FINDING THAT THAT ASSIGNMENT
IN QUESTION WAS "IMPROPERLY OR COLLUSIVELY MADE." 

THE MOST COMPELLING PRECEDENT IS FARMINGTON V. PILLSBURY, 114 U.S.
138 (1885).  THERE MAINE HOLDERS OF BONDS ISSUED BY A MAIN VILLAGE
DESIRED TO TEST THE BONDS' VALIDITY IN THE FEDERAL COURTS.  IN AN
EFFORT TO ACCOMPLISH THIS, THEY CUT THE COUPONS FROM THEIR BONDS AND
TRANSFERRED THEM TO A CITIZEN OF MASSACHUSETTS, WHO GAVE IN RETURN A
NON-NEGOTIABLE TWO-YEAR NOTE FOR $500 AND A PROMISE TO PAY BACK 50% OF
THE NET AMOUNT RECOVERED ABOVE $500.  THE JURISDICTIONAL QUESTION WAS
CERTIFIED TO THIS COURT, WHICH HELD THAT THERE WAS NO FEDERAL
JURISDICTION BECAUSE THE PLAINTIFF HAD BEEN "IMPROPERLY OR COLLUSIVELY"
MADE A PARTY WITHIN THE MEANING OF THE PREDECESSOR STATUTE TO 28
U.S.C. 80 (1940 ED.).  THE COURT POINTED OUT THAT THE PLAINTIFF COULD
EASILY HAVE BEEN RELEASED FROM HIS NON-NEGOTIABLE NOTE, AND FOUND THAT
APART FROM THE HOPED-FOR CREATION OF FEDERAL JURUSDICTION THE ONLY REAL
CONSEQUENCE OF THE TRANSFER WAS TO ENABLE THE MASSACHUSETTS PLAINTIFF
TO "RETAIN ONE-HALF OF WHAT HE COLLECTS FOR THE USE OF HIS NAME AND HIS
TROUBLE IN COLLECTING."  114 U.S., AT 146.  THE COURT CONCLUDED THAT
"THE TRANSFER OF THE COUPONS WAS 'A MERE CONTRIVANCE, A PRETENCE, THE
RESULT OF A COLLUSIVE ARRANGEMENT TO CREATE'" FEDERAL JURISDICTION. 
IBID. 

WE FIND THE CASE BEFORE US INDISTINGUISHABLE FROM FARMINGTON AND
OTHER DECISIONS OF LIKE TENOR.  /8/  WHEN THE ASSIGNMENT TO KRAMER IS
CONSIDERED TOGETHER WITH HIS TOTAL LACK OF PREVIOUS CONNECTION WITH THE
MATTER AND HIS SIMULTANEOUS REASSIGNMENT OF A 95% INTEREST BACK TO
PANAMA, THERE CAN BE LITTLE DOUBT THAT THE ASSIGNMENT WAS FOR PURPOSES
OF COLLECTION, WITH KRAMER TO RETAIN 5% OF THE NET PROCEEDS "FOR THE
USE OF HIS NAME AND HIS TROUBLE IN COLLECTING."  /9/  IF THE SUIT HAD
BEEN UNSUCCESSFUL, KRAMER WOULD HAVE BEEN OUT ONLY $1, PLUS COSTS. 
MOREOVER, KRAMER CANDIDLY ADMITS THAT THE "ASSIGNMENT WAS IN
SUBSTANTIAL PART MOTIVATED BY A DESIRE BY (PANAMA'S) COUNSEL TO MAKE
DIVERSITY JURISDICTION AVAILABLE . . . "  /10/ 

THE CONCLUSION THAT THIS ASSIGNMENT WAS "IMPROPERLY OR COLLUSIVELY
MADE" WITHIN THE MEANING OF SEC. 1359 IS SUPPORTED NOT ONLY BY
PRECEDENT BUT ALSO BY CONSIDERATION OF THE STATUTE'S PURPOSE.  IF
FEDERAL JURISDICTION COULD BE CREATED BY ASSIGNMENTS OF THIS KIND,
WHICH ARE EASY TO ARRANGE AND INVOLVE FEW DISADVANTAGES FOR THE
ASSIGNOR, THEN A VASE QUANTITY OF ORDINARY CONTRACT AND TORT LITIGATION
COULD BE CHANNELED INTO THE FEDERAL COURTS AT THE WILL OF ONE OF THE
PARTIES.  SUCH "MANUFACTURE OF FEDERAL JURISDICTION" WAS THE VERY THING
WHICH CONGRESS INTENDED TO PREVENT WHEN IT ENACTED SEC. 1359 AND ITS
PREDECESSORS. 

        III. 

KRAMER NEVERTHELESS ARGUES THAT THE ASSIGNMENT TO HIM WAS NOT
"IMPROPERLY OR COLLUSIVELY MADE" WITHIN THE MEANING OF SEC. 1359, FOR
TWO MAIN REASONS.  FIRST, HE SUGGESTS THAT THE UNDISPUTED LEGALITY OF
THE ASSIGNMENT UNDER TEXAS LAW NECESSARILY RENDERED IT VALID FOR
PURPOSES OF FEDERAL JURISDICTION.  WE CANNOT ACCEPT THIS CONTENTION. 
THE EXISTENCE OF FEDERAL JURISDICTION IS A MATTER OF FEDERAL, NOT
STATE, LAW.  SEE, E.G., MISSOURI P. R. CO. V. FITZGERALD, 160 U.S. 556,
582 (1896).  UNDER THE PREDECESSOR SECTION, 28 U.S.C. 80 (1940 ED.),
THIS COURT SEVERAL TIMES HELD THAT AN ASSIGNMENT COULD BE "IMPROPERLY
OR COLLUSIVELY MADE" EVEN THOUGH BINDING UNDER STATE LAW, /11/  AND
NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF SEC. 1359 SUGGESTS
THAT A DIFFERENT RESULT SHOULD BE REACHED UNDER THAT STATUTE. 
MOREOVER, TO ACCEPT THIS ARGUMENT WOULD RENDER SEC. 1359 LARGELY
INCAPABLE OF ACCOMPLISHING ITS PURPOSE; THIS VERY CASE DEMONSTRATES THE
EASE WITH WHICH A PARTY MAY "MANUFACTURE" FEDERAL JURISDICTION BY AN
ASSIGNMENT WHICH MEETS THE REQUIREMENTS OF STATE LAW. 

SECOND, KRAMER URGES THAT THIS CASE IS SIGNIFICANTLY DISTINGUISHABLE
FROM EARLIER DECISIONS BECAUSE IT INVOLVES DIVERSITY JURISDICTION UNDER
RATHER THAN THE MORE COMMON DIVERSITY JURISDICTION BASED UPON THE
PARTIES' RESIDENCE IN DIFFERENT STATES.  WE CAN PERCEIVE NO SUBSTANCE
IN THIS ARGUMENT:  BY ITS TERMS, SEC. 1359 APPLIES EQUALLY TO BOTH
TYPES OF DIVERSITY JURISDICTION, AND THERE IS NO INDICATION THAT
CONGRESS INTENDED THEM TO BE TREATED DIFFERENTLY. 

        IV. 

IN SHORT, WE FIND THAT THIS ASSIGNMENT FALLS NOT ONLY WITHIN THE
SCOPE OF SEC. 1359 BUT WITHIN ITS VERY CORE.  IT FOLLOWS THAT THE
DISTRICT COURT LACKED JURISDICTION TO HEAR THIS ACTION, AND THAT
PETITIONER MUST SEEK HIS REMEDY IN THE STATE COURTS.  /12/  THE
JUDGMENT OF THE COURT OF APPEALS IS

              AFFIRMED. 

/1/  THAT IS, KRAMER WOULD RECEIVE 5%, AND PANAMA 95% OF THE NET
PROCEEDS REMAINING AFTER PAYMENT OF ATTORNEYS' FEES AND EXPENSES OF
LITIGATION. 

/2/  TITLE 28 U.S.C. 1332(A)(2) GRANTS DISTRICT COURTS ORIGINAL
JURISDICTION OF CIVIL ACTIONS IN WHICH THE MATTER IN CONTROVERSY
EXCEEDS $10,000 AND IS BETWEEN "CITIZENS OF A STATE, AND FOREIGN STATES
OR CITIZENS OR SUBJECTS THEREOF . . . "  THE DISTRICT COURT WOULD HAVE
HAD NO JURISDICTION OF A SUIT BROUGHT BY PANAMA AGAINST CARIBBEAN,
SINCE BOTH WERE ALIEN CORPORATIONS. 

/3/  28 U.S.C. 41(1) (1940 ED.).  THE CLAUSE FIRST APPEARED AS SEC.
11 OF THE JUDICIARY ACT OF 1789, 1 STAT. 79. 

/4/  THIS STATUTE WAS FIRST ENACTED IN 1875.  SEE 18 STAT. 470. 

/5/  THE QUOTATION IS FROM A COMMENT, CHAOS OF JURISDICTION IN THE
FEDERAL DISTRICT COURTS, 35 ILL.L.REV.  566, 569 (1941); IT REFERS
PRIMARILY TO THE OBSCURE WORDING OF CERTAIN EXCEPTIONS CONTAINED IN THE
CLAUSE.  SEE ID., AT 569-571. 

/6/  SEE CASES CITED IN 3A J. MOORE, FEDERAL PRACTICE 17.05(3.-1),
NN. 7-9 (2D ED. 1968). 

/7/  THERE WERE EXCEPTIONS FOR PARTICULAR TYPES OF ASSIGNMENTS, NONE
OF WHICH IS RELEVANT HERE. 

/8/  SEE, E.G., WILLIAMS V. NOTTAWA, 104 U.S. 209 (1881); LITTLE V.
GILES, 118 U.S. 596 (1886). 

/9/  HENCE, WE HAVE NO OCCASION TO RE-EXAMINE THE CASES IN WHICH
THIS COURT HAS HELD THAT WHERE THE TRANSFER OF A CLAIM IS ABSOLUTE,
WITH THE TRANSFEROR RETAINING NO INTEREST IN THE SUBJECT MATTER, THEN
THE TRANSFER IS NOT "IMPROPERLY OR COLLUSIVELY MADE," REGARDLESS OF THE
TRANSFEROR'S MOTIVE.  SEE, E.G., CROSS V. ALLEN, 141 U.S. 528 (1891);
SOUTH DAKOTA V. NORTH CAROLINA, 192 U.S. 286 (1904); BLACK & WHITE
TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., 276 U.S. 518 (1928); CF.
WILLIAMSON V. OSENTON, 232 U.S. 619 (1914). 

NOR IS IT NECESSARY TO CONSIDER WHETHER, IN CASES IN WHICH SUIT IS
REQUIRED TO BE BROUGHT BY AN ADMINISTRATOR OR GUARDIAN, A MOTIVE TO
CREATE DIVERSITY JURISDICTION RENDERS THE APPOINTMENT OF AN OUT-OF
STATE REPRESENTATIVE "IMPROPER" OR "COLLUSIVE."  SEE, E.G., MCSPARRAN
V. WEIST, 402 F.2D 867 (1968); LANG V. ELM CITY CONSTR.  CO., 324 F.2D
235 (1963); COUNTY OF TODD V. LOEGERING, 297 F.2D 470 (1961); CF. MECOM
V. FITZSIMMONS DRILLING CO., 284 U.S. 183 (1931).  CASES INVOLVING
REPRESENTATIVES VARY IN SEVERAL RESPECTS FROM THOSE IN WHICH
JURISDICTION IS BASED ON ASSIGNMENTS:  (1) IN THE FORMER SITUATION,
SOME REPRESENTATIVE MUST BE APPOINTED BEFORE SUIT CAN BE BROUGHT, WHILE
IN THE LATTER THE ASSIGNOR NORMALLY IS HIMSELF CAPABLE OF SUING IN
STATE COURT; (2) UNDER STATE LAW, DIFFERENT KINDS OF GUARDIANS AND
ADMINISTRATORS MAY POSSESS DISCRETE SORTS OF POWERS; AND (3) ALL SUCH
REPRESENTATIVES OWE THEIR APPOINTMENT TO THE DECREE OF A STATE COURT,
RATHER THAN SOLELY TO AN ACTION OF THE PARTIES.  IT IS NOT NECESSARY TO
DECIDE WHETHER THESE DISTINCTIONS AMOUNT TO A DIFFERENCE FOR PURPOSES
OF SEC. 1359. 

/10/  BRIEF FOR PETITIONER 16. 

/11/  SEE, E.G., LITTLE V. GILES, 118 U.S. 596, 602 (1886); LEHIGH
MINING & MFG. CO. V. KELLY, 160 U.S. 327, 336 (1895); CF. SMITH V.
KERNOCHEN, 7 HOW.  198, 215-216 (1849). 

/12/  PETITIONER ASKS THAT WE MAKE OUR RULING PROSPECTIVE ONLY,
ASSERTING THAT HE REASONABLY BELIEVED HE HAD A RIGHT TO INVOKE FEDERAL
JURISDICTION, AND THAT THE FOUR-YEAR TEXAS STATUTE OF LIMITATIONS
GOVERNING CONTRACT ACTIONS, TEX. REC. CIV. STAT., ART. 5527 (1948), MAY
BAR HIM FROM RECOVERING IN THE STATE COURTS AS TO SOME OF THE
INSTALLMENTS ALLEGEDLY DUE HIM.  HOWEVER, ANOTHER TEXAS STATUTE, TEX.
REV. CIV. STAT., ART. 5539A (1948, PROVIDES: 

"WHEN . . . A JUDGMENT . . . SHALL BE SET ASIDE OR ANNULLED IN A
DIRECT PROCEEDING, BECAUSE OF A WANT OF JURISDICTION OF THE TRIAL
COURT.  . . AND WITHIN SIXTY (60) DAYS AFTER SUCH DISMISSAL . . .
BECOMES FINAL, SUCH ACTION SHALL BE COMMENCED IN A COURT OF PROPER
JURISDICTION, THE PERIOD BETWEEN THE DATE OF FIRST FILING AND THAT OF
COMMENCEMENT IN THE SECOND COURT SHALL NOT BE COUNTED AS A PART OF THE
PERIOD OF LIMITATION UNLESS THE OPPOSITE PARTY SHALL . . . SHOW THE
FIRST FILING TO HAVE BEEN IN INTENTIONAL DISREGARD OF JURISDICTION." 
THIS STATUTE HAS BEEN HELD TO APPLY WHEN THE DISMISSAL ON
JURISDICTIONAL GROUNDS WAS BY A FEDERAL COURT.  SEE, E.G., BURFORD V.
SUN OIL CO., 186 S.W.2D 306 (CT. CIV. APP. TEX. 1944).  PETITIONER
ALLEGES THAT THE FIRST CONTRACT INSTALLMENT ACCRUED ON JULY 1, 1962. 
HENCE, ART. 5539A APPEARS TO ASSURE HIM A FULL STATE-COURT REMEDY, AND
THUS OBVIATES THE NEED FOR FURTHER DISCUSSION OF PROSPECTIVITY.     MR.
JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS
CASE. 

EUGENE GRESSMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS JACK BANNER. 

DENNIS G. LYONS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS MORRIS HARRELL. 
..END :








HALLIDAY V. UNITED STATES, 394 U.S. 831 


       HALLIDAY V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIRST CIRCUIT. 

        NO. 642, MISC.  DECIDED MAY 5, 1969. 


THIS COURT'S DECISION IN MCCARTHY V. UNITED STATES, ANTE, P. 459,
HOLDING THAT A DEFENDANT WHOSE GUILTY PLEA IS ACCEPTED IN VIOLATION OF
FED. RULE CRIM. PROC. 11 MUST BE AFFORDED AN OPPORTUNITY TO PLEAD ANEW,
IS TO BE APPLIED PROSPECTIVELY FROM THE DATE OF THAT DECISION. 

CERTIORARI GRANTED; 394 F.2D 149, AFFIRMED. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE PETITION
FOR A WRIT OF CERTIORARI IS ALSO GRANTED, LIMITED TO ONE ISSUE:  SHOULD
PETITIONER'S CONVICTION BE REVERSED BECAUSE THE UNITED STATES DISTRICT
JUDGE WHO ACCEPTED HIS GUILTY PLEA FAILED TO COMPLY WITH RULE 11 OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE?  IN OUR RECENT DECISION OF
MCCARTHY V. UNITED STATES, ANTE, P. 459, WE HELD THAT WHEN A GUILTY
PLEA IS ACCEPTED IN VIOLATION OF RULE 11 THE DEFENDANT MUST BE AFFORDED
AN OPPORTUNITY TO PLEAD ANEW.  PETITIONER'S PLEA WAS ENTERED IN 1954. 
THE QUESTION WE MUST DECIDE, THEREFORE, IS WHETHER MCCARTHY SHOULD BE
APPLIED TO GUILTY PLEAS ACCEPTED PRIOR TO THE DATE OF THAT DECISION. 
WE HOLD THAT IT SHOULD NOT. 

AFTER AN EVIDENTIARY HEARING ON OCTOBER 17, 1967, PETITIONER'S
MOTION TO SET ASIDE HIS SENTENCE UNDER 28 U.S.C. 2255 WAS DENIED BY THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.  THE
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT AFFIRMED PER
CURIAM.  ALTHOUGH IT ACKNOWLEDGED THAT THE DISTRICT COURT HAD NOT
COMPLIED WITH RULE 11 WHEN IT ACCEPTED PETITIONER'S PLEA, IT HELD THAT
HE WAS NOT ENTITLED TO RELIEF BECAUSE "AMPLE EVIDENCE" SUPPORTED THE
DISTRICT COURT'S FINDING THAT THE GOVERNMENT HAD MET ITS BURDEN OF
DEMONSTRATING THAT PETITIONER ENTERED HIS PLEA VOLUNTARILY WITH AN
UNDERSTANDING OF THE NATURE OF THE CHARGES AGAINST HIM. 

IN DECIDING WHETHER TO APPLY NEWLY ADOPTED CONSTITUTIONAL RULINGS
RETROACTIVELY, WE HAVE CONSIDERED THREE CRITERIA:  (1) THE PURPOSE OF
THE NEW RULE; (2) THE EXTENT OF RELIANCE UPON THE OLD RULE; AND (3) THE
EFFECT RETROACTIVE APPLICATION WOULD HAVE UPON THE ADMINISTRATION OF
JUSTICE.  E.G., DESIST V. UNITED STATES, ANTE, P. 244; STOVALL V.
DENNO, 388 U.S. 293 (1967); JOHNSON V. NEW JERSEY, 384 U.S. 719
(1966).  THE MCCARTHY WE TOOK CARE TO NOTE THAT OUR HOLDING WAS BASED
SOLELY UPON THE APPLICATION OF RULE 11 AND NOT UPON CONSTITUTIONAL
GROUNDS.  NEVERTHELESS, IT IS APPROPRIATE TO ANALYZE THE QUESTION OF
THAT DECISION'S RETROACTIVITY IN TERMS OF THE SAME CRITERIA WE HAVE
EMPLOYED TO DETERMINE WHETHER CONSTITUTIONALLY GROUNDED DECISIONS THAT
DEPART FROM PRECEDENT SHOULD BE APPLIED RETROACTIVELY.  SEE LINKLETTER
V. WALKER, 381 U.S. 618, 622-629 (1965). 

THE RULE WE ADOPTED IN MCCARTHY HAS TWO PURPOSES:  (1) TO INSURE
THAT EVERY DEFENDANT WHO PLEADS GUILTY IS AFFORDED RULE 11'S PROCEDURAL
SAFEGUARDS, WHICH ARE DESIGNED TO FACILITATE THE DETERMINATION OF THE
VOLUNTARINESS OF HIS PLEA; (2) TO PROVIDE A COMPLETE RECORD AT THE TIME
THE PLEA IS ENTERED OF THE FACTORS RELEVANT TO THIS DETERMINATION,
THEREBY FACILITATING A MORE EXPEDITIOUS DISPOSITION OF A POST
CONVICTION ATTACK ON THE PLEA.  UNQUESTIONABLY, STRICT COMPLIANCE WITH
RULE 11 ENHANCES THE RELIABILITY OF THE VOLUNTARINESS DETERMINATION,
AND WE HAVE RETROACTIVELY APPLIED CONSTITUTIONALLY GROUNDED RULES OF
CRIMINAL PROCEDURE DESIGNED TO CORRECT "SERIOUS FLAWS IN THE FACT
FINDING PROCESS AT TRIAL."  STOVALL V. DENNO, SUPRA, AT 298.  HOWEVER,
A DEFENDANT WHOSE PLEA HAS BEEN ACCEPTED WITHOUT FULL COMPLIANCE WITH
RULE 11 MAY STILL RESORT TO APPROPRIATE POST-CONVICTION REMEDIES TO
ATTACK HIS PLEA'S VOLUNTARINESS.  THUS, IF HIS PLEA WAS ACCEPTED PRIOR
TO OUR DECISION IN MCCARTHY, HE IS NOT WITHOUT A REMEDY TO CORRECT
CONSTITUTIONAL DEFECTS IN HIS CONVICTION.  CF. JOHNSON V. NEW JERSEY,
SUPRA, AT 730.  AND AS WE POINTED OUT IN STOVALL, THE EXTENT TO WHICH A
"CONDEMNED PRACTICE INFECTS THE INTEGRITY OF THE TRUTH-DETERMINING
PROCESS . . . MUST . . . BE WEIGHTED AGAINST THE PRIOR JUSTIFIED
RELIANCE UPON THE OLD STANDARD AND THE IMPACT OF RETROACTIVITY UPON THE
ADMINISTRATION OF JUSTICE."  STOVALL V. DENNO, SUPRA, AT 298.  IN
MCCARTHY WE NOTED THAT THE PRACTICE WE WERE REQUIRING HAD BEEN
PREVIOUSLY FOLLOWED BY ONLY ONE CIRCUIT; THAT OVER 85% OF ALL
CONVICTIONS IN THE FEDERAL COURTS ARE OBTAINED PURSUANT TO GUILTY
PLEAS; AND THAT PRIOR TO RULE 11'S RECENT AMENDMENT, NOT ALL DISTRICT
JUDGES PERSONALLY QUESTIONED DEFENDANTS BEFORE ACCEPTING THEIR GUILTY
PLEAS.  THUS, IN VIEW OF THE GENERAL APPLICATION OF RULE 11 IN A MANNER
INCONSISTENT WITH OUT HOLDING IN MCCARTHY, AND IN VIEW OF THE LARGE
NUMBER OF CONSTITUTIONALLY VALID CONVICTIONS THAT MAY HAVE BEEN
OBTAINED WITHOUT FULL COMPLIANCE WITH RULE 11, WE DECLINE TO APPLY
MCCARTHY RETROACTIVELY.  WE HOLD THAT ONLY THOSE DEFENDANTS WHOSE
GUILTY PLEAS WERE ACCEPTED AFTER APRIL 2, 1969, ARE ENTITLED TO PLEAD
ANEW IF THEIR PLEAS WERE ACCEPTED WITHOUT FULL COMPLIANCE WITH RULE
11. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS FOR THE FIRST
CIRCUIT IS

              AFFIRMED. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

MCCARTHY V. UNITED STATES, ANTE, P. 459, ANNOUNCED NO NEW
CONSTITUTIONAL OR GENERAL PROCEDURAL DOCTRINE.  THAT DECISION, ON A
MATTER OF FIRST IMPRESSION IN THIS COURT, MERELY INTERPRETED RULE 11 OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE, AS AMENDED EFFECTIVE JULY 1,
1966, AND HELD THAT THE RULE MUST BE STRICTLY APPLIED ACCORDING TO ITS
TERMS.  I SEE NO REASON WHY OTHER FEDERAL PRISONERS WHOSE PLEAS WERE
ACCEPTED IN PLAIN VIOLATION OF THE REQUIREMENTS OF THE AMENDED RULE
SHOULD BE DEPRIVED OF THE RELIEF ACCORDED MCCARTHY.  SEE GENERALLY MY
DISSENT IN DESIST V. UNITED STATES, ANTE, P. 256.  I WOULD THEREFORE
APPLY THE PER SE RULE ENUNCIATED IN MCCARTHY TO ALL PLEAS ENTERED ON OR
AFTER JULY 1, 1966. 

WHILE THE AMENDED RULE 11 REQUIRES THE TRIAL JUDGE TO FOLLOW SPECIFIC
PROCEDURES BEFORE ACCEPTING A PLEA OF GUILTY, AND WAS PROMULGATED FOR
THAT VERY PURPOSE, SEE NOTES OF ADVISORY COMMITTEE ON RULES, THE PRE
1966 RULE 11 WAS "SUBSTANTIALLY A RESTATEMENT OF EXISTING LAW AND
PRACTICE," IBID., AND REQUIRED ONLY THAT THE JUDGE "DETERMINE" THAT THE
PLEA WAS MADE "VOLUNTARILY WITH UNDERSTANDING OF THE NATURE OF THE
CHARGE," WITHOUT, HOWEVER, SPECIFYING A PROCEDURE FOR MAKING THIS
DETERMINATION.  THUS, IN A PRE-1966 PROCEEDING, THE TRIAL JUDGE MAY
HAVE RELIED ON THE CIRCUMSTANCES SURROUNDING A PLEA OF GUILTY, WITHOUT
MAKING A SPECIFIC INQUIRY OR FINDINGS, TO CONCLUDE THAT THE PLEA WAS
VOLUNTARILY AND UNDERSTANDINGLY GIVEN. 

I AGREE WITH THE COURT BELOW THAT THE ABSENCE OF AN EXPLICIT INQUIRY
MAY SOMETIMES ENTITLE THE DEFENDANT TO A SUBSEQUENT HEARING, PURSUANT
TO 28 U.S.C. 2255, TO DETERMINE WHETHER THE PLEA WAS IN FACT MADE
VOLUNTARILY AND UNDERSTANDINGLY.  IN VIEW OF THE WHOLLY INEXPLICIT
DIRECTIVES OF THE OLD RULE, HOWEVER, I BELIEVE THAT SUCH A HEARING
SUFFICES, AND THAT A PLEA MADE UNDER THE RULE SHOULD NOT AUTOMATICALLY
BE SET ASIDE AS IN THE CASE OF A PLEA MADE UNDER THE 1966 RULE-- THE
SITUATION IN MCCARTHY. 

PETITIONER'S PLEA WAS ACCEPTED IN 1954, WITHOUT AN EXPLICIT INQUIRY
AT THAT TIME WHETHER IT WAS VOLUNTARILY AND UNDERSTANDINGLY MADE. 
PETITIONER MOVED TO VACATE THE PLEA, AND AFTER A FULL HEARING THE
DISTRICT COURT, 274 F.SUPP.  737, 738-739 (1967), AFFIRMED BY THE COURT
OF APPEALS, 394 F.2D 149 (1968), DETERMINED THAT "THE GOVERNMENT HAS
SUSTAINED ITS BURDEN OF SHOWING THAT AT THE TIME PETITIONER HALLIDAY
CHANGED HIS PLEA HE IN FACT DID UNDERSTAND THE NATURE OF THE THREE
CHARGES AGAINST HIM AND THAT HE CHANGED HIS PLEA VOLUNTARILY, WITH FULL
AWARENESS OF THE CONSEQUENCES OF THE CHANGE OF PLEA." 

ON THE BASIS OF THESE FINDINGS, AND NOT ON ANY THEORY AS TO THE
NONRETROACTIVITY OF MCCARTHY, I WOULD AFFIRM. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

I DO NOT UNDERSTAND WHY THERE SHOULD BE ANY DISCUSSION OF THE
RETROACTIVITY OF MCCARTHY V. UNITED STATES, ANTE, P. 459, A DECISION OF
THIS COURT THIS TERM INTERPRETING A FEDERAL RULE OF CRIMINAL
PROCEDURE.  IF THE RULE'S RELEVANT PORTIONS WERE IN FULL FORCE AND
EFFECT WHEN PETITIONER'S GUILTY PLEA WAS ENTERED IN 1954, THEN IT
SHOULD OF COURSE BE ENFORCED IN THIS CASE; IF NOT, THE MCCARTHY
DECISION SIMPLY HAS NO APPLICATION HERE AT ALL.  FOR THIS REASON AND
FOR ALL OTHERS SET OUT IN MY DISSENTING OPINION IN LINKLETTER V.
WALKER, 381 U.S. 618, 640 (1965), I WOULD REVERSE THE JUDGMENT BELOW
AND ORDER THAT PETITIONER'S GUILTY PLEA BE VACATED SO THAT HE MAY HAVE
AN OPPORTUNITY TO PLEAD AGAIN. 

LAURENCE M. JOHNSON, FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON,
JEROME M. FEIT, AND MERVYN HAMBURG FOR THE UNITED STATES. 
..END :





















TEXAS BOUNDARY CASE, 394 U.S. 836 


       UNITED STATES V. LOUISIANA ET AL. (TEXAS BOUNDARY CASE). 

        NO. 9, ORIG.  DECIDED MAY 31, 1960, DECEMBER 4, 1967, AND

           MARCH 3, 1969.-- DECREE ENTERED DECEMBER 12, 1960.--

           SUPPLEMENTAL DECREE ENTERED MAY 5, 1969. 


OPINIONS REPORTED:  363 U.S. 1; 389 U.S. 155; AND ANTE, P. 1.  DECREE
REPORTED:  364 U.S. 502. 

FOR THE PURPOSE OF GIVING EFFECT TO THE CONCLUSIONS OF THIS COURT AS
STATED IN ITS OPINIONS ANNOUNCED DECEMBER 4, 1967, AND MARCH 3, 1969,
SUPPLEMENTING THE DECREE ENTERED HEREIN ON DECEMBER 12, 1960, IT IS
ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 

1.  AS AGAINST THE STATE OF TEXAS, THE UNITED STATES IS ENTITLED TO-
 

(A) ALL THE LANDS, MINERALS AND OTHER NATURAL RESOURCES UNDERLYING
THE GULF OF MEXICO THAT ARE MORE THAN THREE MARINE LEAGUES GULFWARD
FROM THE PRESENT OR FUTURE COASTLINE AS REFERRED TO IN SEC. 2(C) OF THE
SUBMERGED LANDS ACT, 67 STAT. 29, 43 U.S.C. 1301(C); AND 

(B) ALL THE LANDS, MINERALS AND OTHER NATURAL RESOURCES UNDERLYING
THE GULF OF MEXICO, MORE THAN THREE GEOGRAPHICAL MILES GULFWARD FROM
THE PRESENT OR FUTURE COASTLINE AS REFERRED TO IN SEC. 2(C) OF THE
SUBMERGED LANDS ACT, 43 U.S.C. 1301(C), THAT ARE GULFWARD OF THE
FOLLOWING LINE: 

BEGINNING AT A POINT ON THE INTERNATIONAL BOUNDARY WITH MEXICO
(WHEREVER THAT BOUNDARY MAY BE LOCATED), THREE MARINE LEAGUES GULFWARD
FROM THE POINT X 2,447,033, Y 105,994 (TEXAS PLANE COORDINATE SYSTEM,
SOUTH ZONE), LATITUDE 25 DEGREES 57'05.90" N., LONGITUDE 97 DEGREES
08'22.85" W., AND PROCEEDING THENCE NORTHWARDLY AND EASTWARDLY AS
FOLLOWS:  (CHART OMITTED) 

THE STATE OF TEXAS IS NOT ENTITLED TO ANY INTEREST IN SUCH LANDS,
MINERALS OR RESOURCES, AND SAID STATE, ITS PRIVIES, ASSIGNS, LESSEES
AND OTHER PERSONS CLAIMING UNDER IT ARE HEREBY ENJOINED FROM
INTERFERING WITH THE RIGHTS OF THE UNITED STATES IN SUCH LANDS,
MINERALS AND RESOURCES. 

2.  AS AGAINST THE UNITED STATES, WITH THE EXCEPTIONS PROVIDED BY
SEC. 5 OF THE SUBMERGED LANDS ACT, 43 U.S.C. 1313, THE STATE OF TEXAS
IS ENTITLED TO-- 

(A) ALL THE LANDS, MINERALS AND OTHER NATURAL RESOURCES UNDERLYING
THE GULF OF MEXICO, BOUNDED ON THE SOUTH BY THE INTERNATIONAL BOUNDARY
WITH MEXICO AND ON THE EAST BY THE WESTERN BOUNDARY OF LOUISIANA AND AN
EXTENSION THEREOF, THAT ARE WITHIN THREE GEOGRAPHICAL MILES FROM THE
PRESENT OR FUTURE COASTLINE AS REFERRED TO IN SEC. 2(C) OF THE
SUBMERGED LANDS ACT, 43 U.S.C. 1301(C); AND 

(B) ALL THE LANDS, MINERALS AND OTHER NATURAL RESOURCES UNDERLYING
THE GULF OF MEXICO, BOUNDED ON THE SOUTH BY THE INTERNATIONAL BOUNDARY
WITH MEXICO AND ON THE EAST BY THE WESTERN BOUNDARY OF LOUISIANA AND AN
EXTENSION THEREOF, LESS THAN THREE MARINE LEAGUES GULFWARD FROM THE
PRESENT OR FUTURE COASTLINE AS REFERRED TO IN SEC. 2(C) OF THE
SUBMERGED LANDS ACT, 43 U.S.C. 1301(C), THAT ARE LANDWARD OF THE LINE
DESCRIBED IN PARAGRAPH 1(B) HEREOF. 

3.  AS USED HEREIN-- 

(A) "GEOGRAPHICAL MILE" MEANS A DISTANCE OF 1852 METERS (6076.10333
. . . U.S. SURVEY FEET OR APPROXIMATELY 6076.11549 INTERNATIONAL
FEET); 

(B) "MARINE LEAGUE" MEANS A DISTANCE OF THREE GEOGRAPHICAL MILES; 

(C) PLANE COORDINATES REFER TO THE TEXAS COORDINATE SYSTEMS, SOUTH
ZONE OR SOUTH CENTRAL ZONE, AS INDICATED. 

(D) LATITUDES AND LONGITUDES REFER TO THE NORTH AMERICAN 1927
DATUM. 

(E) ALL DISTANCES REFERRED TO HEREIN ARE EXPRESSED AT GRID SCALE,
TEXAS PLANE COORDINATE SYSTEMS. 

4.  THE COURT RETAINS JURISDICTION TO ENTERTAIN SUCH FURTHER
PROCEEDINGS, ENTER SUCH ORDERS, AND ISSUE SUCH WRITS AS MAY FROM TIME
TO TIME BE DEEMED NECESSARY OR ADVISABLE TO GIVE PROPER FORCE AND
EFFORT TO THIS DECREE, OR TO THE DECREE OF DECEMBER 12, 1960, HEREIN,
OR TO EFFECTUATE THE RIGHTS OF THE PARTIES IN THE PREMISES. 

THE CHIEF JUSTICE AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR FORMULATION OF THIS SUPPLEMENTAL DECREE. 
..END :






SOUTHERN PACIFIC CO. V. PUBLIC UTILITIES COMMISSION OF CALIFORNIA,
394 U.S. 845 A 



       SOUTHERN PACIFIC CO. V. PUBLIC UTILITIES COMMISSION OF

           CALIFORNIA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA. 

        NO. 1152.  DECIDED MAY 5, 1969. 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

ROBERT L. PIERCE FOR APPELLANT. 

MARY MORAN PAJALICH FOR APPELLEE PUBLIC UTILITIES COMMISSION OF
CALIFORNIA. 
..END :























SOUTHERN PACIFIC CO. V. PUBLIC UTILITIES COMMISSION OF CALIFORNIA,
394 U.S. 845 



       SOUTHERN PACIFIC CO. V. PUBLIC UTILITIES COMMISSION OF

           CALIFORNIA. 

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 1050.  DECIDED MAY 5, 1969. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

ROBERT L. PIERCE FOR APPELLANT. 

MARY MORAN PAJALICH FOR APPELLEE. 
..END :



RHODES V. KANSAS, 394 U.S. 846 


       RHODES V. KANSAS. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF

           SEDGWICK COUNTY, KANSAS. 

        NO. 877, MISC.  DECIDED MAY 5, 1969. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT OF SEDGWICK COUNTY, KANSAS, FOR
FURTHER CONSIDERATION IN LIGHT OF SMITH V. HOOEY, 393 U.S. 374. 

KENT FRIZZELL, ATTORNEY GENERAL OF KANSAS, AND E. G. COLLISTER, JR.,
DEPUTY ATTORNEY GENERAL, FOR RESPONDENT. 
..END :








WAGGONER V. ROSENN, SECRETARY OF PUBLIC WELFARE OF PENNSYLVANIA, 394
U.S. 846 



       WAGGONER ET AL. V. ROSENN, SECRETARY OF PUBLIC WELFARE OF

           PENNSYLVANIA. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF PENNSYLVANIA. 

        NO. 144, MISC.  DECIDED MAY 5, 1969. 


286 F.SUPP.  275, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION OF APPELLANTS FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FOR FURTHER CONSIDERATION IN LIGHT OF SHAPIRO V. THOMPSON, ANTE, P.
618. 

WILLIAM C. SENNETT, ATTORNEY GENERAL OF PENNSYLVANIA, AND EDGAR R.
CASPER, DEPUTY ATTORNEY GENERAL, FOR APPELLEE. 
..END :
























ROBINSON V. JOHNSON, 394 U.S. 847 


       ROBINSON ET AL. V. JOHNSON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS. 

        NO. 67.  DECIDED MAY 5, 1969. 


AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK DISSENTS FOR THE REASONS GIVEN IN THE DISSENTING
OPINION OF THE CHIEF JUSTICE IN SHAPIRO V. THOMPSON, ANTE, P. 644. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS GIVEN IN HIS DISSENTING
OPINION IN SHAPIRO V. THOMPSON, ANTE, P. 655. 

WILLIAM G. CLARK, ATTORNEY GENERAL OF ILLINOIS, THOMAS E. BRANNIGAN,
ASSISTANT ATTORNEY GENERAL, JOHN J. STAMOS, AND DANIEL P. COMAN FOR
APPELLANTS. 
..END :




MONTGOMERY, DIRECTOR, CALIFORNIA DEPARTMENT OF SOCIAL WELFARE V.
BURNS, 394 U.S. 848 



       MONTGOMERY, DIRECTOR, CALIFORNIA DEPARTMENT OF SOCIAL

           WELFARE, ET AL. V. BURNS ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

    NORTHERN DISTRICT OF CALIFORNIA. 

        NO. 438.  DECIDED MAY 5, 1969. 


AFFIRMED. 

PER CURIAM. 

THE MOTION OF APPELLEES FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED.  THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS
AFFIRMED. 

MR. JUSTICE BLACK DISSENTS FOR THE REASONS GIVEN IN THE DISSENTING
OPINION OF THE CHIEF JUSTICE IN SHAPIRO V. THOMPSON, ANTE, P. 644. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS GIVEN IN HIS DISSENTING
OPINION IN SHAPIRO V. THOMPSON, ANTE, P. 655. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND ELIZABETH
PALMER AND DONALD B. DAY, DEPUTY ATTORNEYS GENERAL, FOR APPELLANTS. 
..END :




















NATIONAL TRAILER CONVOY, INC., V. UNITED STATES, 394 U.S. 849 


       NATIONAL TRAILER CONVOY, INC., ET AL. V. UNITED STATES ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF OKLAHOMA. 

        NO. 1169.  DECIDED MAY 5, 1969. 


293 F.SUPP.  630, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

WILLIAM J. LIPPMAN, ROBERT JOYNER, AND ROLAND RICE FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
ROBERT W. GINNANE, AND RAYMOND M. ZIMMET FOR THE UNITED STATES ET AL.,
AND WILLIAM P. SULLIVAN AND WILLIAM P. JACKSON, JR., FOR APPELLEE
CONTRACT CARRIER CONFERENCE OF AMERICAN TRUCKING ASSNS., INC.
..END :




UNITED STATES V. BACTO-UNIDISK, 394 U.S. 784 


       UNITED STATES V. AN ARTICLE OF DRUG . . . BACTO-UNIDISK . .

           .

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 343.  ARGUED JANUARY 23, 1969.-- DECIDED APRIL 28,

           1969. 


ANTIBIOTIC SENSITIVITY DISC USED AS LABORATORY SCREENING TEST TO HELP
DETERMINE PROPER ANTIBIOTIC DRUG TO ADMINISTER TO PATIENTS HELD NOT
MERELY A "DEVICE" BUT A "DRUG" WITHIN DEFINITION OF SEC. 201(G)(1)(B)
OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT AND TO SEC. 507 OF THE
ACT.  PP. 791-801. 

392 F.2D 21, REVERSED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

AT ISSUE HERE IS THE SCOPE OF THE STATUTORY DEFINITION OF DRUG
CONTAINED IN THE FEDERAL FOOD, DRUG, AND COSMETIC ACT AND THE EXTENT OF
THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE'S REGULATORY AUTHORITY
UNDER THAT DEFINITION.  THE SPECIFIC ITEM INVOLVED IN THIS DEFINITIONAL
CONTROVERSY IS A LABORATORY AID KNOWN AS AN ANTIBIOTIC SENSITIVITY
DISC, USED AS A SCREENING TEST FOR HELP IN DETERMINING THE PROPER
ANTIBIOTIC DRUG TO ADMINISTER TO PATIENTS.  IF THE ARTICLE IS A "DRUG"
WITHIN THE GENERAL DEFINITION OF SEC. 201 OF THE FEDERAL FOOD, DRUG,
AND COSMETIC ACT (52 STAT. 1040, 21 U.S.C. 321 (1964 ED., SUPP. II)),
THEN THE SECRETARY CAN SUBJECT IT TO PRE-MARKET CLEARANCE REGULATIONS
PROMULGATED PURSUANT TO SEC. 507 OF THE ACT (21 U.S.C. 357).  SECTION
507 AUTHORIZES THE SECRETARY TO REQUIRE BATCH CERTIFICATION OF ANY
ANTIBIOTIC PRODUCT WHICH ALSO MEETS THE GENERAL DRUG DEFINITION OF SEC.
201.  IF, ON THE OTHER HAND, THE ARTICLE IS MERELY A "DEVICE"  UNDER
THE ACT, IT IS SUBJECT ONLY TO THE MISBRANDING AND ADULTERATION
PROSCRIPTIONS OF THE ACT AND DOES NOT HAVE TO BE PRE-TESTED BEFORE
MARKETING; AND, OF COURSE, IF THE DISC DOES NOT FALL UNDER EITHER
DEFINITION, THE ACT ITSELF IS TOTALLY INAPPLICABLE. 

WHEN THE DISCS WERE MARKETED WITHOUT COMPLYING WITH THE
CERTIFICATION REGULATIONS OF THE SECRETARY, THE GOVERNMENT CONDEMNED
THEM PURSUANT TO SEC. 334 OF THE ACT (21 U.S.C. 331) ON THE ASSUMPTION
THAT THE DISCS WERE DRUGS AND THUS VALIDLY SUBJECT TO PRE-MARKET
REGULATION.  IN THIS ACTION FOLLOWING THE CONDEMNATION, HOWEVER, THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN HELD
THAT THE DISCS WERE NOT DRUGS WITHIN THE MEANING OF THE ACT, SUGGESTING
THAT, IF ANYTHING, THEY WERE DEVICES.  IT THEREFORE RULED THAT, SINCE
PRE-MARKET CLEARANCE WAS NOT REQUIRED OR AUTHORIZED, THE SEIZURE WAS
IMPROPER.  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED ON THE
SAME REASONING.  WE REVERSE. 

I. 

SOME BACKGROUND INFORMATION ABOUT THE DEVELOPMENT OF THE DISCS AND
THE CONTROLLING LEGISLATION IS NECESSARY FOR AN UNDERSTANDING OF THE
DETERMINATIONS MADE BY THE SECRETARY AND THE COURTS BELOW.  VARIOUS
ANTIBIOTICS, KNOWN MORE COMMONLY AS "WONDER DRUGS" UNDER SUCH FAMILIAR
NAMES AS PENICILLIN, AUREOMYCIN, TERRAMYCIN, TETRACYCLINE, AND
STREPTOMYCIN, HAVE PROVED VERY USEFUL SINCE WORLD WAR II IN TREATING
NUMEROUS INFECTIOUS DISEASES.  /1/  PRODUCED BIOLOGICALLY, HOWEVER,
THESE DRUGS TEND TO VARY GREATLY IN THEIR QUALITY AND POTENCY UNLESS
DEVELOPED, AND THEREAFTER TESTED, UNDER VERY CAREFULLY CONTROLLED
CONDITIONS.  CONSEQUENTLY, /2/  CONGRESS ENACTED SEC. 507 OF THE FOOD,
DRUG, AND COSMETIC ACT, DIRECTING THE SECRETARY OF HEALTH, EDUCATION,
AND WELFARE TO PROMULGATE REGULATIONS ESTABLISHING SUCH STANDARDS OF
IDENTITY, POTENCY, QUALITY, AND PURITY AS NECESSARY TO ENSURE THE
"SAFETY" AND "EFFICACY" OF THOSE ANTIBIOTICS.  AT PRESENT, MORE THAN 30
ANTIBIOTIC DRUGS ARE LISTED (21 CFR 145.3) WITH ACCOMPANYING
REGULATIONS COVERING MORE THAN 700 PAGES IN THE CODE OF FEDERAL
REGULATIONS (21 CFR 141.1-148Z.4). 

WITH THE PROLIFERATION OF THE VARIOUS TYPES OF ANTIBIOTICS, DOCTORS
FOUND A NEED FOR A SCREENING TEST TO HELP CHOOSE WHICH ANTIBIOTIC TO
USE IN TREATING A PARTICULAR INFECTION.  A DIFFUSION TEST, USING
ANTIBIOTIC SENSITIVITY DISC LIKE THE ONE IN QUESTION HERE, SOON BECAME
A WIDELY EMPLOYED SCREENING METHOD.  /3/  IN THIS TEST, A ROUND PAPER
DISC, WHICH HAS BEEN IMPREGNATED WITH A SPECIFIC ANTIBIOTIC, IS PLACED
IN CONTACT WITH SAMPLE CULTURES, OR ISOLATES, OF A PATIENT'S VIRUS,
GROWN IN A SPECIAL CULTURE MEDIUM (AGAR) FROM A SPECIMEN OF THE
PATIENT'S FLUID (BLOOD, SPINAL FLUID, SPUTUM, URINE, ETC.).  IN THOSE
PLACES IMPREGNATED WITH AN ANTIBIOTIC TO WHICH THE PATIENT'S INFECTION
IS SENSITIVE, NO NEW ISOLATE WILL GROW, LEAVING A CLEAR AREA (AN
"INHIBITION ZONE"); IN THOSE PLACES IMPREGNATED WITH A DRUG TO WHICH
THE INFECTION IS RESISTANT, THE ISOLATE WILL GROW , LEAVING NO CLEAR
AREA.  THE DISC IS USED, IN CONJUNCTION WITH A PATIENT'S SPECIMEN, IN
LABORATORY WORK EXCLUSIVELY, AND NEVER COMES IN CONTACT WITH ANY PART
OF THE PATIENT'S BODY ITSELF. 

THE DISCS HAD BEEN IN GENERAL USE FOR SOME FOUR YEARS WHEN, IN 1960,
THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE DETERMINED TO REGULATE
THEM PURSUANT TO SEC. 507.  AFTER NOTICE AND AN OPPORTUNITY FOR PUBLIC
PARTICIPATION, THE COMMISSIONER OF FOOD AND DRUGS, UNDER AUTHORITY
DELEGATED BY THE SECRETARY, PROMULGATED REGULATIONS REQUIRING PRE
CLEARANCE, BATCH-TESTING, AND CERTIFICATION OF ANTIBIOTIC SENSITIVITY
DISCS (25 FED.REG.  9369).  THE COMMISSIONER'S ACTION, THE REGULATIONS
NOTED, FOLLOWED "NUMEROUS COMPLAINTS BY THE MEDICAL PROFESSION,
HOSPITALS, AND LABORATORY TECHNICIANS" AND A RESULTING EXTENSIVE SURVEY
OF THE USE OF THE DISCS.  THAT STUDY FOUND THE DISCS UNRELIABLE IN
THEIR STATEMENTS OF POTENCY WITH RESULTING LOSS OF SAFETY AND EFFICACY,
AND THUS FOUND IT "VITAL FOR THE PROTECTION OF THE PUBLIC HEALTH" TO
ADOPT THE REGULATIONS (25 FED.REG.  9370). 

THIS CASE AROSE IN MAY 1962 AS AN IN REM SEIZURE PROCEEDING AGAINST
AN INTERSTATE SHIPMENT OF A NUMBER OF CASES OS SENSITIVITY DISCS,
MANUFACTURED BY DIFCO LABORATORIES, INC., UNDER THE TRADE NAME OF
"BACTO-UNIDISK."  IN CONDEMNING THE PRODUCT PURSUANT TO SEC. 301 ET
SEQ. OF THE FOOD, DRUG, AND COSMETIC ACT, THE UNITED STATES CLAIMED,
INTER ALIA, THAT THE PRODUCT, AS A "DRUG" WITHIN THE MEANING OF THE
ACT, HAD NOT BEEN CERTIFIED NOR EXEMPTED FROM CERTIFICATION AS REQUIRED
BY SEC. 507 (21 U.S.C. 357) AND THE REGULATIONS THEREUNDER AND WAS
THEREFORE MISBRANDED UNDER SEC. 502 (21 U.S.C. 352).  /4/  THE SEIZURE
WAS PROPER ONLY IF THE SECRETARY'S REGULATIONS SUBJECTING THE DISCS TO
THE PRE-MARKET CLEARANCE REQUIREMENTS WERE AUTHORIZED BY THE ACT. 
SINCE THE SCOPE OF THE SECRETARY'S PRE-MARKET REGULATORY POWER OVER
ANTIBIOTIC DRUGS UNDER SEC. 507 DEPENDS ULTIMATELY ON THE ACT'S GENERAL
DEFINITION OF "DRUG" IN SEC. 201(G), THE VALIDITY OF THE DISC
REGULATIONS ALLEGEDLY VIOLATED TURNED ON THE COVERAGE OF THE DRUG
DEFINITION: 

"FOR THE PURPOSES OF THIS CHAPTER-- "(G)(1) THE TERM 'DRUG'  MEANS
(A) ARTICLES RECOGNIZED IN THE OFFICIAL UNITED STATES PHARMACOPOEIA,
OFFICIAL HOMOEOPATHIC PHARMACOPOEIA OF THE UNITED STATES, OR OFFICIAL
NATIONAL FORMULARY, OR ANY SUPPLEMENT TO ANY OF THEM; AND (B) ARTICLES
INTENDED FOR USE IN THE DIAGNOSIS, CURE, MITIGATION, TREATMENT, OR
PREVENTION OF DISEASE IN MAN OR OTHER ANIMALS; AND (C) ARTICLES (OTHER
THAN FOOD) INTENDED TO AFFECT THE STRUCTURE OR ANY FUNCTION OF THE BODY
OF MAN OR OTHER ANIMALS; AND (D) ARTICLES INTENDED FOR USE AS A
COMPONENT OF ANY ARTICLE SPECIFIED IN CLAUSES (A), (B), (C) OF THIS
PARAGRAPH; BUT DOES NOT INCLUDE DEVICES OR THEIR COMPONENTS, PARTS, OR
ACCESSORIES."  21 U.S.C. 321 (1964 ED., SUPP. II).  IF, ON THE OTHER
HAND, THE PRODUCT WAS A "DEVICE," ONLY THE MISBRANDING, ADULTERATION,
AND LABELING PROVISIONS OF SECS. 501 AND 502 APPLIED, AND THE
SECRETARY'S DISC CERTIFICATION REGULATIONS WERE INVALIDLY PROMULGATED. 
ALTHOUGH A "DEVICE" EXPRESSLY CANNOT BE A "DRUG" UNDER THE LAST PHRASE
OF THE DRUG DEFINITION ABOVE, A DEVICE IS GIVEN ALMOST A PARALLEL
DEFINITION IN SEC. 201(H): 

"THE TERM 'DEVICE' . . . MEANS INSTRUMENTS, APPARATUS, AND
CONTRIVANCES, INCLUDING THEIR COMPONENTS, PARTS, AND ACCESSORIES,
INTENDED (1) FOR USE IN THE DIAGNOSIS, CURE, MITIGATION, TREATMENT, OR
PREVENTION OF DISEASE IN MAN OR OTHER ANIMALS; OR (2) TO AFFECT THE
STRUCTURE OR ANY FUNCTION OF THE BODY OF MAN OR OTHER ANIMALS."  21
U.S.C. 321(H).  FINALLY, IT WAS ESTABLISHED AT TRIAL THAT OF THE
VARIOUS DEFINITIONS GIVEN ABOVE, THE OPERATIVE ONES IN THIS CASE WERE
SEC. 201(G)(1)(B) OF THE DRUG PROVISION AND SEC. 201(H)(1) OF THE
PARALLEL DEVICE DEFINITION; /5/  THE ESSENTIAL QUESTION UNDERLYING THE
VALIDITY OF THE REGULATIONS, THEN, WAS WHETHER THE BACTO-UNIDISKS WERE
"ARTICLES INTENDED FOR USE IN THE DIAGNOSIS, CURE, MITIGATION,
TREATMENT, OR PREVENTION OF DISEASE IN MAN OR OTHER ANIMALS." 

IN RESOLVING THIS QUESTION IN THE NEGATIVE AND HOLDING THE SEIZURE
INVALID, THE DISTRICT COURT NOTED IN A MEMORANDUM OPINION /6/  THAT THE
CONCEPT OF DRUG IS LIMITED IN A MEDICAL SENSE TO ARTICLES ADMINISTERED
TO MAN EITHER EXTERNALLY OR INTERNALLY, AND RULED THAT THE "EVIDENCE
AFFORDS NO BASIS FOR THE CONCLUSION THAT THE DEFINITION OF'DRUG' IN THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT . . . WAS INTENDED BY CONGRESS TO
EXTEND BEYOND THE MEANING OF THAT TERM IN MEDICAL SCIENCE, TO ENCOMPASS
THESE SENSITIVITY DISKS."  THE DISTRICT COURT POINTED OUT THAT ALTHOUGH
A "LITERAL READING" OF SEC. 201(G)(1)(B) "CLEARLY HAS APPLICATION TO
THE ARTICLE LIBELED HEREIN," ENFORCING SUCH AN APPLICATION WOULD BE
"RIDICULOUS AND CONTRARY TO COMMON SENSE."  THE COURT THEREFORE HELD
THAT THE BACTO-UNIDISK DID NOT FALL WITHIN THE PURVIEW OF THE ACT FOR
THE REASON THAT IT WAS NOT MEDICALLY A DRUG, AND SUGGESTED, WITHOUT
DECIDING, THAT THE DISCS WOULD BE MORE APPROPRIATELY CLASSIFIED AS
"DEVICES" UNDER THE ACT. 

ON APPEAL, THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED,
ACCEPTING THE DISTRICT COURT'S CONCLUSIONS THAT THE BACTO-UNIDISK WAS
NOT A "DRUG" IN THE MEDICAL SENSE OF THE TERM AND THAT CONGRESS DID NOT
INTEND THE STATUTORY DEFINITION OF "DRUG" TO BE ANY BROADER THAN THE
MEDICAL ONE.  392 F.2D 21, 23.  THE COURT NOTED THAT THE DISCS DID AID
PHYSICIANS IN THE DETERMINATION OF WHAT ANTIBIOTIC TO USE FOR THE CURE,
MITIGATION, OR TREATMENT OF DISEASE BY FURNISHING USEFUL INFORMATION,
BUT HELD THAT CONGRESS DID NOT INTEND TO APPLY THE STATUTORY PHRASE
"INTENDED FOR USE IN THE . . . CURE, MITIGATION, (OR) TREATMENT" IN
SUCH AN INDIRECT MANNER.  392 F.2D 21, 22.  WE GRANTED THE GOVERNMENT'S
PETITION FOR CERTIORARI BECAUSE THIS INTERPRETATION OF THE ACT RAISED
ISSUES OF IMPORTANCE IN THE ADMINISTRATION OF THE FEDERAL FOOD, DRUG,
AND COSMETIC ACT (393 U.S. 911 (1968). 

     II. 

ALTHOUGH THERE WAS SOME TESTIMONY BELOW DEBATING THE PRECISE EXTEND
OF THE PUBLIC HEALTH DANGERS POSED BY THE SENSITIVITY DISCS, THE COURTS
BELOW DECLINED TO SUBSTITUTE THEIR JUDGMENT FOR THAT OF THE
COMMISSIONER OF FOOD AND DRUGS BY DETERMINING WHETHER HIS ACTION WAS
REALLY NECESSARY TO PROTECT THE PUBLIC HEALTH FROM A PURELY MEDICAL
VIEWPOINT.  RATHER, THE COURTS BELOW QUITE PROPERLY CONFINED THE
INQUIRY TO AN EXAMINATION OF WHETHER THE DISC REGULATIONS, EVEN IF
MEDICALLY UNWISE, WERE AUTHORIZED BY THE ACT, AND MORE SPECIFICALLY, BY
THE ACT'S DEFINITION OF "DRUG."  DESPITE THE RENEWED EFFORT HERE TO
RELITIGATE THE PUBLIC HEALTH ISSUE, WE AGREE WITH THE DECISION
IMPLICITLY MADE BY THE COURTS BELOW NOT TO BASE A RESOLUTION OF THIS
CASE ON THE PUBLIC NEED FOR, OR MEDICAL WISDOM OF, THE SECRETARY'S
REGULATIONS REQUIRING PRE-MARKET CLEARANCE OF ANTIBIOTIC SENSITIVITY
DISCS.  IT IS ENOUGH FOR US THAT THE EXPERT AGENCY CHARGED WITH THE
ENFORCEMENT OF REMEDIAL LEGISLATION HAS DETERMINED THAT SUCH REGULATION
IS DESIRABLE FOR THE PUBLIC HEALTH, FOR WE ARE HARDLY QUALIFIED TO
SECOND-GUESS THE SECRETARY'S MEDICAL JUDGMENT.  OUR SOLE CONCERN IS
WHETHER THE STATUTE'S DEFINITION OF "DRUG"  AUTHORIZES THE DISC
REGULATIONS CONTESTED HERE; AND WHILE WE AGREE WITH THE LOWER COURTS'
LIMITED CONCEPTION OF THE ISSUE, FOR REASONS OUTLINED BELOW, WE REVERSE
THEIR DISPOSITION OT IF. 

RESPONDENT'S PRIMARY CONTENTION HERE IS THAT THE SENSITIVITY DISCS
ARE NOT SUBJECT TO ANY OF THE PROVISIONS OF THE ACT BECAUSE CONGRESS
DID NOT INTEND IT TO COVER ARTICLES USED SO INDIRECTLY IN THE 'CURE,
MITIGATION, (AND) TREATMENT" OF DISEASE.  RESPONDENT USES THE SAME TWO
STEP ANALYSIS RELIED ON BY THE COURTS BELOW:  (1) CONGRESS DID NOT
INTEND TO WRITE THE DRUG DEFINITION MORE BROADLY THAN DOES THE MEDICAL
PROFESSION, AND (2) THE MEDICAL CONCEPT OF DRUG IS LIMITED TO ARTICLES
THAT ARE ADMINISTERED TO MAN EITHER INTERNALLY OR EXTERNALLY. 
ALTERNATIVELY, RESPONDENT ARGUES, EVEN IF THE ACT'S "INTENDED FOR USE"
LANGUAGE DOES COVER THE DISCS, THEY MUST CLEARLY BE CLASSIFIED AS
DEVICES.  IN VIEW OF THE LEGISLATIVE HISTORY DISCUSSED BELOW AND THE
BROAD, REMEDIAL PURPOSE OF THE ACT ITSELF, HOWEVER, WE HESITATE TO GIVE
THE CRITICAL LANGUAGE SUCH A NARROW, RESTRICTIVE READING IN THE ABSENCE
OF CONGRESSIONAL DIRECTION TO DO SO, AND WE THEREFORE REJECT THE
CONTENTION THAT THE DISCS DO NOT PROPERLY FALL WITHIN THE PURVIEW OF
THE ACT.  FOR THE SAME BASIC REASONS, WE FURTHERMORE REJECT THE
ARGUMENT THAT THE DISCS, ONCE FOUND TO COME UNDER THE ACT'S COVERAGE,
MUST BE CLASSIFIED SPECIFICALLY AS DEVICES AND NOT DRUGS. 

WE NEED NOT STOP TO PARSE THE LANGUAGE OF THE ACT'S DEFINITION OF
DRUG, FOR THE DISTRICT COURT FOUND, AND THE PARTIES DO NOT DISAGREE
HERE, THAT A LITERAL READING OF THE WORDS "INTENDED FOR USE IN THE . .
. CURE, MITIGATION, (OR) TREATMENT" OF DISEASE "CLEARLY HAS
APPLICATION" TO THE BACTO-UNIDISK.  ALTHOUGH RESPONDENT AGAIN URGES
THAT THE DISC ITSELF DOES NOT "TREAT" A PATENT IN THE SAME WAY AN
ANTIBIOTIC DOES IN TERMS OF PERSONAL APPLICATION, THE DISC PLAYS AT
LEAST SOME ROLE IN THE SELECTION OF THE APPROPRIATE DRUG.  THUS, THE
ESSENTIAL QUESTION FOR OUR DETERMINATION IS WHETHER CONGRESS INTENDED
THE DEFINITION OF DRUG TO HAVE THE BROAD COVERAGE THE COURTS BELOW AND
THE PARTIES AGREE ITS WORDS ALLOW.  VIEWING THE STRUCTURE, THE
LEGISLATIVE HISTORY, AND THE REMEDIAL NATURE OF THE ACT, WE THINK IT
PLAIN THAT CONGRESS INTENDED TO DEFINE "DRUG"  FAR MORE BROADLY THAN
DOES THE MEDICAL PROFESSION.  THE REASON FOR INCLUDING A SEPARATE,
ALMOST PARALLEL, DEFINITION OF "DEVICES" IN THE ACT IS, AS THE
LEGISLATIVE HISTORY SHOWS, RELEVANT TO CONGRESSIONAL INTENT.  IT IS
THEREFORE HELPFUL TO CONSIDER BOTH THE QUESTION OF THE ACT'S INITIAL
APPLICATION AND THE QUESTION OF THE DRUG-DEVICE DICHOTOMY AT THE SAME
TIME.              III.     AT THE OUTSET, IT IS CLEAR FROM SEC. 210
THAT THE WORD "DRUG" IS A TERM OF ART FOR THE PURPOSES OF THE ACT,
ENCOMPASSING FAR MORE THAN THE STRICT MEDICAL DEFINITION OF THAT WORD. 
IF CONGRESS HAD INTENDED TO LIMIT THE STATUTORY DEFINITION TO THE
MEDICAL ONE, IT COULD HAVE SO STATED EXPLICITLY, OR SIMPLY HAVE MADE
REFERENCE TO THE OFFICIAL UNITED STATES PHARMACOPOEIA (OR THE NATIONAL
FORMULARY) AS IT DID IN THE FIRST OF THE THREE SUBSECTIONS OF SEC.
201(G)(1), AND LET THE DEFINITION REST THERE.  THE HISTORICAL EXPANSION
OF THE STATUTE'S DEFINITION, FURTHERMORE, CLEARLY POINTS OUR CONGRESS'
INTENTION OF GOING BEYOND THE MEDICAL USAGE.  THE 1906 FOOD AND DRUG
ACT, FOR INSTANCE, DEFINED "DRUG" IN A RATHER LIMITED WAY TO INCLUDE
"ALL MEDICINES AND PREPARATIONS RECOGNIZED IN THE UNITED STATES
PHARMACOPOEIA OR NATIONAL FORMULARY FOR INTERNAL OR EXTERNAL USE, AND
ANY SUBSTANCE OR MIXTURE OF SUBSTANCES INTENDED TO BE USED FOR THE
CURE, MITIGATION, OR PREVENTION OF DISEASE OF EITHER MAN OR OTHER
ANIMALS."  34 STAT. 768, 769.  AS SUBSEQUENT CONGRESSIONAL ACTION
CLEARLY INDICATES, HOWEVER, THE SCOPE OF THAT ORIGINAL DEFINITION HAS
SINCE BEEN GREATLY ENLARGED. 

THE ENACTMENT OF THE 1938 FEDERAL FOOD, DRUG, AND COSMETIC ACT
ILLUSTRATES THE EXPANSION OF THE DEFINITION OF DRUG.  ONE OF THE
CHANGES CONTEMPLATED IN S. 2800, AN EARLY VERSION OF THE ACT, /7/
DEFINED "DRUG" TO INCLUDE 

"(1) ALL SUBSTANCES AND PREPARATIONS RECOGNIZED IN THE UNITED STATES
PHARMACOPOEIA, HOMOEOPATHIC PHARMACOPOEIA OF THE UNITED STATES, OR
NATIONAL FORMULARY OR SUPPLEMENTS THERETO; AND (2) ALL SUBSTANCES,
PREPARATIONS, AND DEVICES INTENDED FOR USE IN THE CURE, MITIGATION,
TREATMENT, OR PREVENTION OF DISEASE IN MAN OR OTHER ANIMALS; AND (3)
ALL SUBSTANCES AND PREPARATIONS, OTHER THAN FOOD, AND ALL DEVICES
INTENDED TO AFFECT THE STRUCTURE OR ANY FUNCTION OF THE BODY."  (SEE S.
REP. NO. 493, 73D CONG., 2D SESS. (1934).)  (EMPHASIS ADDED.) 

SENATOR COPELAND OF NEW YORK, WHO SPONSORED THE ACT, REMARKED ABOUT
THE INCLUSION OF THE WORD "DEVICES" IN HIS PREPARED STATEMENT
INTRODUCING S. 2800 AS FOLLOWS: 

     "THE PRESENT LAW DEFINES DRUGS AS SUBSTANCES OR MIXTURES OF

  SUBSTANCES INTENDED TO BE USED FOR THE CURE, MITIGATION, OR

PREVENTION OF DISEASE.  THIS NARROW DEFINITION PERMITS ESCAPE

  FROM LEGAL CONTROL OF ALL THERAPEUTIC OR CURATIVE DEVICES LIKE

  ELECTRIC BELTS, FOR EXAMPLE.  IT ALSO PERMITS THE ESCAPE OF

  PREPARATIONS WHICH ARE INTENDED TO ALTER THE STRUCTURE OR SOME

  FUNCTION OF THE BODY, AS, FOR EXAMPLE, PREPARATIONS INTENDED TO

  REDUCE EXCESSIVE WEIGHT.  THERE ARE MANY WORTHLESS AND SOME

  DANGEROUS DEVICES AND PREPARATIONS FALLING WITHIN THESE

  CLASSIFICATIONS.  S. 1800 CONTAINS AMPLE AUTHORITY TO CONTROL

  THEM."  (78 CONG. REC. 8960 (1934). 

THE DEFINITION WAS REVISED IN S. 5, 74TH CONG., 1ST SESS. (1935), TO
INCLUDE SUBSTANCES, PREPARATIONS, AND DEVICES INTENDED FOR DIAGNOSTIC
PURPOSES, AS WELL AS FOR CURE, MITIGATION, TREATMENT, OR PREVENTION OF
DISEASE (S. 5, SEC. 201(B), S. REP. NO. 361, 74TH CONG., 1ST SESS.
(1935).  /8/  AS THE INCLUSION OF THE WORD "DIAGNOSIS" CAME BEFORE THE
SENATE FOR CONSIDERATION, A CONTROVERSY DEVELOPED ON THE FLOOR, AIMED
MORE AT THE WORD "DEVICES," WHICH WAS NOT THEN BEFORE THE SENATE, THAN
AT THE WORD "DIAGNOSIS."  79 CONG.REC.  4841-4845 (1935).  /9/  SENATOR
CLARK CONTENDED THAT IT WAS NOT PROPER TO CLASSIFY DEVICES AS DRUGS,
AND THAT DIAGNOSTIC DEVICES WERE SO BROADLY DEFINED AS TO MAKE EVEN A
BATHROOM SCALE A DRUG: 

"(IF THE DEVICES OUGHT TO BE OUTLAWED, THEY OUGHT TO BE OUTLAWED,
AND I HAVE NO OBJECTION TO THAT; BUT TO MAINTAIN THAT A PURELY
MECHANICAL DEVICE IS A DRUG AND TO BE TREATED AS A DRUG IN LAW AND IN
LOGIC AND.IN LEXICOGRAPHY IS A PALPABLE ABSURDITY, IN MY OPINION." 
ID., AT 4841. 

IN ANSWER TO SENATOR CLARK'S REMARK THAT A BATHROOM SCALE WOULD BE
CLASSIFIED AS A DRUG, SENATOR COPELAND MADE THE FOLLOWING COMMENT: 

     "MR. PRESIDENT, I DESIRE TO STATE THE EFFECT OF THIS

  AMENDMENT.  THERE ARE ON THE MARKET CERTAIN ELECTRICAL DEVICES. 

  A MAN TAKES HOLD OF THE HANDLES OF THE MACHINE, AND THE INDICATOR

SPINS AROUND.  IT STOPS AT 'APPENDICITIS,' OR IT STOPS AT

'MENINGITIS' . . . SUCH A DEVICE IS MANIFESTLY A FRAUD UPON

  SOCIETY.  THAT IS WHAT THE AMENDMENT IS DESIGNED TO DEAL WITH." 

  ID., AT 4842. 

DESPITE SENATOR COPELAND'S PROFFERED EXPLANATION, THERE WAS CONTINUED
CRITICISM DURING THE SENATE DEBATES (79 CONG.REC.  4905-4920, 5215
5234) /10/ OF THE DEFINITION ON THE GROUND THAT IT WOULD LEAD TO THE
INCONGRUOUS RESULT OF CALLING THE FOLLOWING ITEMS "DRUGS":  SHOULDER
BRACES (ID., AT 4841), RADIUM BELTS (IBID.), ELECTRICAL DEVICES (ID.,
AT 4842), BATHROOM WEIGHT SCALES (IBID.), AND HOSPITAL AIR CONDITIONING
APPARATUS (ID., AT 5231).  /11/  THE OPPOSITION FINALLY SETTLED ON
"CRUTCHES" (ID., AT 4913) /12/  TO SIGNIFY THE ULTIMATE ABSURDITY OF
THE DRUG DEFINITION'S BROAD COVERAGE. 

AS A RESULT OF THE CRITICISM ON THE SENATE FLOOR, SENATOR COPELAND
PROPOSED AN AMENDMENT TO ADD A DEFINITION OF "DEVICE" TO PARALLEL THAT
OF DRUG, AN AMENDMENT WHICH WAS INCLUDED /13/  WHEN THE BILL WAS
RETURNED TO THE SENATE COMMITTEE ON COMMERCE AND LATER AGREED TO BY THE
SENATE WITHOUT DEBATE.  (ID., AT 8351-8355.  /14/  ) THE ULTIMATE
EFFECT OF THE VARIOUS AMENDMENTS, OF COURSE, WAS STILL TO INCLUDE
DEVICES UNDER THE CONTROL OF THE ACT FOR THE FIRST TIME, THE GOAL
SENATOR COPELAND HAD ORIGINALLY SET OUT TO ACHIEVE.  AS CONGRESSMAN
CHAPMAN OF KENTUCKY EXPLAINED TO THE HOUSE AFTER THE BILL HAD PASSED
THE SENATE, "FOR THE FIRST TIME IT IS PROPOSED IN A BILL BEFORE
CONGRESS TO CONTROL THERAPEUTIC DEVICES . . . THER ARE HUNDREDS OF
WORTHLESS CONTRIVANCES BEING SOLD TO AND USED BY GULLIBLE PEOPLE. 
SUFFICE IT TO SAY THAT A FAKE CONTRAPTION FOR THE CURE OF CONSUMPTION
IS JUST AS SERIOUS A MENACE TO HEALTH AS IS A WORTHLESS DRUG SOLD FOR
THE SAME.  DISEASE."  80 CONG.REC.  10236 (1936).  /15/  ACCORDING TO
THE CHIEF OF THE FOOD AND DRUG ADMINISTRATION, THE REASON FOR PROVIDING
A SEPARATE DEFINITION OF DEVICES, INSTEAD OF USING SENATOR COPELAND'S
ORIGINAL DRUG DEFINITION, WAS SIMPLY TO AVOID "THE INCONGRUITY OF
CLASSIFYING CERTAIN DEVICES, SUCH AS THE ELECTRIC BELT, THERAPEUTIC
LAMPS, AND SO FORTH, AS DRUGS . . . "(TESTIMONY GIVEN DURING HEARINGS
HELD ON S. 5 BY A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 74TH CONG., 1ST SESS. (1935).  /16/  ) BECAUSE OF
THAT INCONGRUITY AS "POINTED OUT BY THE SENATE IN THE LAST
CONSIDERATION OF THE BILL," THE OFFICIAL EXPLAINED, "(THEY FELT IT
PROPER TO PROVIDE AN INDEPENDENT DEFINITION OF 'DEVICES.'"  THUS, IT IS
CLEAR THAT TWO PARALLEL DEFINITIONS WERE PROVIDED FOR SEMANTIC REASONS
ONLY; FOR THE PURPOSES OF THE ACT, THE TWO DEFINITIONS HAD THE SAME
EFFECT OF SUBJECTING BOTH DRUGS AND DEVICES TO THE ADULTERATION AND
MISBRANDING PROVISIONS.  NO PRACTICAL SIGNIFICANCE TO THE DISTINCTION
BETWEEN THE TWO WORDS AROSE UNTIL THE PRE-MARKET CLEARANCE PROVISIONS,
SIMILAR TO THE CERTIFICATION REGULATIONS FOR ANTIBIOTICS ENACTED IN
1945, WERE ADDED AFTER A DRUG TRAGEDY IN THE FALL OF 1937.  /7/  (S.
3073, 75TH CONG., 2D SESS.) THE EXCEPTING CLAUSE OF SEC. 201(G)(1),
STATING CLEARLY THAT A DRUG CANNOT BE A DEVICE, WAS ALSO ADDED IN 1938
(S. 5, 75TH CONG., 3D SESS., H. R. REP. NO. 2139). 

THE HISTORICAL EXPANSION OF THE DEFINITION OF DRUG, AND THE CREATION
OF A PARALLEL CONCEPT OF DEVICES, CLEARLY SHOW, WE THINK THAT CONGRESS
FULLY INTENDED THAT THE ACT'S COVERAGE BE AS BROAD AS ITS LITERAL
LANGUAGE INDICATES-- AND EQUALLY CLEARLY, BROADER THAN ANY STRICT
MEDICAL DEFINITION MIGHT OTHERWISE ALLOW.  STRONG INDICATIONS FROM
LEGISLATIVE HISTORY THAT CONGRESS INTENDED THE BROAD COVERAGE THE
DISTRICT COURT THOUGHT "RIDICULOUS" SHOULD SATISFY US THAT THE LOWER
COURTS ERRED IN REFUSING TO APPLY THE ACT'S LANGUAGE AS WRITTEN.  BUT
WE ARE ALL THE MORE CONVINCED THAT WE MUST GIVE EFFECT TO CONGRESSIONAL
INTENT IN VIEW OF THE WELL-ACCEPTED PRINCIPLE THAT REMEDIAL LEGISLATION
SUCH AS THE FOOD, DRUG, AND COSMETIC ACT IS TO BE GIVEN A LIBERAL
CONSTRUCTION CONSISTENT WITH THE ACT'S OVERRIDING PURPOSE TO PROTECT
THE PUBLIC HEALTH, AND SPECIFICALLY, SEC. 507'S PURPOSE TO ENSURE THAT
ANTIBIOTIC PRODUCTS MARKETED SERVE THE PUBLIC WITH "EFFICACY" AND
"SAFETY."  CF. UNITED STATES V. SULLIVAN, 332 U.S. 689, 693-695 (1948);
UNITED STATES V. DOTTERWEICH, 320 U.S. 277, 283-284 (1943). 

        IV. 

RESPONDENT'S ALTERNATIVE CONTENTION, THAT EVEN IF ITS PRODUCT DOES
FALL WITHIN THE PURVIEW OF THE ACT, IT IS PLAINLY A "DEVICE" AND
THEREFORE BY DEFINITION NECESSARILY NOT A "DRUG," MUST ALSO BE
REJECTED, WE BELIEVE, IN LIGHT OF THE FOREGOING ANALYSIS.  AT THE
OUTSET, IT MUST BE CONCEDED THAT THE LANGUAGE OF THE STATUTE IS OF
LITTLE ASSISTANCE IN DETERMINING PRECISELY WHAT DIFFERENTIATES A "DRUG"
FROM A "DEVICE":  TO THE EXTENT THAT BOTH ARE INTENDED FOR USE IN THE
TREATMENT, MITIGATION AND CURE OF DISEASE, THE FORMER IS AN "ARTICLE"
AND THE LATTER INCLUDES "INSTRUMENTS," "APPARATUS," AND
"CONTRIVANCES."  DESPITE THE OBVIOUS AREAS OF OVERLAP IN DEFINITION, WE
ARE NOT ENTIRELY WITHOUT GUIDANCE IN DETERMINING THE PROPRIETY OF THE
SECRETARY'S DECISION BELOW, GIVE THE OVERALL GOALS OF THE ACT AND ITS
LEGISLATIVE HISTORY. 

MORE SPECIFICALLY, AS WE HAVE PREVIOUSLY HELD IN AN ANALOGOUS
SITUATION WHERE THE STATUTE'S LANGUAGE SEEMED INSUFFICIENTLY PRECISE,
THE "NATURAL WAY" TO DRAW THE LINE "IS IN LIGHT OF THE STATUTORY
PURPOSE" (SEC V. RALSTON PURINA CO., 346 U.S. 119, 124-125 (1953)). 
/18/  SINCE THE PATIENT WILL TEND TO DERIVE LESS BENEFIT AND PERHAPS
SOME HARM FROM A PARTICULAR ANTIBIOTIC IF, THOUGH THE DRUG ITSELF WAS
PROPERLY BATCH-TESTED, IT WAS NOT THE PROPER ANTIBIOTIC TO USE, IT WAS
ENTIRELY REASONABLE FOR THE SECRETARY TO DETERMINE THAT THE DISCS, LIKE
THE ANTIBIOTICS THEY SERVE, ARE DRUGS AND SIMILARLY SUBJECT TO PRE
CLEARANCE CERTIFICATION UNDER SEC. 507.  AN OPPOSITE CONCLUSION MIGHT
UNDERCUT THE VALUE OF TESTING THE ANTIBIOTICS THEMSELVES, FOR SUCH
TESTING WOULD BE A USELESS EXERCISE IF THE WRONG DRUG WERE ULTIMATELY
ADMINISTERED, EVEN PARTIALLY AS THE RESULT OF AN UNRELIABLE DISC. 

FURTHERMORE, THE LEGISLATIVE HISTORY, READ IN LIGHT OF THE STATUTE'S
REMEDIAL PURPOSE, DIRECTS US TO READ THE CLASSIFICATION "DRUG" BROADLY,
AND TO CONFINE THE DEVICE EXCEPTION AS NEARLY AS IS POSSIBLE TO THE
TYPES OF ITEMS CONGRESS SUGGESTED IN THE DEBATES, /19/  SUCH AS
ELECTRIC BELTS, QUACK DIAGNOSTIC SCALES, AND THERAPEUTIC LAMPS, AS WELL
AS BATHROOM WEIGHT SCALES, SHOULDER BRACES, AIR CONDITIONING UNITS, AND
CRUTCHES.  IN UPHOLDING THE SECRETARY'S DETERMINATION HERE, WITHOUT
DECIDING THE PRECISE CONTOURS OF THE "DEVICE" CLASSIFICATION, WE NEED
ONLY POINT OUT THAT THE EXCEPTION WAS CREATED PRIMARILY FOR THE PURPOSE
OF AVOIDING THE SEMANTIC INCONGRUITY OF CLASSIFYING AS DRUGS (1)
CERTAIN QUACK CONTRAPTIONS AND (2) BASIC AIDS USED IN THE ROUTINE
OPERATION OF A HOSPITAL-- ITEMS CHARACTERIZED MORE BY THEIR PURELY
MECHANICAL NATURE THAN BY THE FACT THAT THEY ARE COMPOSED OF COMPLEX
CHEMICAL COMPOUNDS OR BIOLOGICAL SUBSTANCES.  FINALLY, WE ARE SUPPORTED
IN THE DECISION TO UPHOLD THE FDA'S DETERMINATION THAT THE SENSITIVITY
DISCS FALL UNDER THE COVERAGE OF THE ACT AND SPECIFICALLY UNDER THE
DRUG PROVISION THEREOF BY THE KNOWLEDGE THAT THE CLASSIFICATION OF
THESE DISCS AS DRUGS MAY NOT BE AS CONTRARY TO COMMON MEDICAL USAGE AS
THE DISTRICT COURT AND RESPONDENT WOULD HAVE USE BELIEVE.  /20/ 

IN UPHOLDING THE SECRETARY'S CONSTRUCTION OF THE ACT, WE ARE NOT
UNMINDFUL OF OUR WARNING THAT "(IN OUR ANXIETY TO EFFECTUATE THE
CONGRESSIONAL PURPOSE OF PROTECTING THE PUBLIC, WE MUST TAKE CARE NOT
TO EXTEND THE SCOPE OF THE STATUTE BEYOND THE POINT WHERE CONGRESS
INDICATED IT WOULD STOP."  62 CASES OF JAM V. UNITED STATES, 340 U.S.
593, 600 (1951).  OUR HOLDING HERE SIMPLY INVOLVES AN OBVIOUS COROLLARY
TO THAT PRINCIPLE, THAT WE MUST TAKE CARE NOT TO NARROW THE COVERAGE OF
A STATUTE SHORT OF THE POINT WHERE CONGRESS INDICATED IT SHOULD
EXTEND. 

              REVERSED. 

/1/  SEE GENERALLY L. GOODMAN & A. GILMAN, THE PHARMACOLOGICAL BASIS
OF THERAPEUTICS (3D ED., 1965). 

/2/  SEE H. R. REP. NO. 702, 79TH CONG., 1ST SESS. (1945).  SECTION
507, AS SET FORTH IN 21 U.S.C. 357, READS AS FOLLOWS: 

"(A) THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, PURSUANT TO
REGULATIONS PROMULGATED BY HIM, SHALL PROVIDE FOR THE CERTIFICATION OF
BATCHES OF DRUGS COMPOSED WHOLLY OR PARTLY OF ANY KIND OF PENICILLIN,
STREPTOMYCIN, CHLORTETRACYCLINE, CHLORAMPHENICOL, BACITRACIN, OR ANY
OTHER ANTIBIOTIC DRUG, OR ANY DERIVATIVE THEREOF.  A BATCH OF ANY SUCH
DRUG SHALL BE CERTIFIED IF SUCH DRUG HAS SUCH CHARACTERISTICS OF
IDENTITY AND SUCH BATCH HAS SUCH CHARACTERISTICS OF STRENGTH QUALITY,
AND PURITY, AS THE SECRETARY PRESCRIBES IN SUCH REGULATIONS AS
NECESSARY TO ADEQUATELY INSURE SAFETY AND EFFICACY OF USE, BUT SHALL
NOT OTHERWISE BE CERTIFIED.  PRIOR TO THE EFFECTIVE DATE OF SUCH
REGULATIONS THE SECRETARY, IN LIEU OF CERTIFICATION, SHALL ISSUE A
RELEASE FOR ANY BATCH WHICH, IN HIS JUDGMENT, MAY BE RELEASED WITHOUT
RISK AS TO THE SAFETY AND EFFICACY OF ITS USE.  SUCH RELEASE SHALL
PRESCRIBE THE DATE OF ITS EXPIRATION AND OTHER CONDITIONS UNDER WHICH
IT SHALL CEASE TO BE EFFECTIVE AS TO SUCH BATCH AND AS TO PORTIONS
THEREOF.  FOR PURPOSES OF THIS SECTION AND OF SECTION 352(L) OF THIS
TITLE, THE TERM 'ANTIBIOTIC DRUG' MEANS ANY DRUG INTENDED FOR USE BY
MAN CONTAINING ANY QUANTITY OF ANY CHEMICAL SUBSTANCE WHICH IS PRODUCED
BY A MICROORGANISM AND WHICH HAS THE CAPACITY TO INHIBIT OR DESTROY
MICROORGANISMS IN DILUTE SOLUTION (INCLUDING THE CHEMICALLY SYNTHESIZED
EQUIVALENT OF ANY SUCH SUBSTANCE).     "(B) REGULATIONS PROVIDING FOR
SUCH CERTIFICATIONS SHALL CONTAIN SUCH PROVISIONS AS ARE NECESSARY TO
CARRY OUT THE PURPOSES OF THIS SECTION, INCLUDING PROVISIONS
PRESCRIBING (1) STANDARDS OF IDENTITY AND OF STRENGTH, QUALITY, AND
PURITY; (2) TESTS AND METHODS OF ASSAY TO DETERMINE COMPLIANCE WITH
SUCH STANDARDS; (3) EFFECTIVE PERIODS FOR CERTIFICATES, AND OTHER
CONDITIONS UNDER WHICH THEY SHALL CEASE TO BE EFFECTIVE AS TO CERTIFIED
BATCHES AND AS TO PORTIONS THEREOF; (4) ADMINISTRATION AND PROCEDURE;
AND (5) SUCH FEES, SPECIFIED IN SUCH REGULATIONS, AS ARE NECESSARY TO
PROVIDE, EQUIP, AND MAINTAIN AN ADEQUATE CERTIFICATION SERVICE.  SUCH
REGULATIONS SHALL PRESCRIBE ONLY SUCH TESTS AND METHODS OF ASSAY AS
WILL PROVIDE FOR CERTIFICATION OR REJECTION WITHIN THE SHORTEST TIME
CONSISTENCE WITH THE PURPOSES OF THIS SECTION." 

/3/  SEE GENERALLY BAUER, KIRBY, SHERRIS, & TURCK, ANTIBIOTIC
SUSCEPTIBILITY TESTING BY A STANDARDIZED SINGLE DISK METHOD, 45
AMERICAN JOURNAL OF CLINICAL PATHOLOGY 493 (1966); PETERSDORF &
SHERRIS, METHODS AND SIGNIFICANCE OF IN VITRO TESTING OF BACTERIAL
SENSITIVITY TO DRUGS, 39 AMERICAN JOURNAL OF MEDICINE 766 (1965);
GOULD, THE LABORATORY CONTROL OF ANTIBIOTIC THERAPY, 3 CHEMOTHERAPIA
477 (1961); SECOND REPORT OF THE EXPERT COMMITTEE ON ANTIBIOTICS,
STANDARDIZATION OF METHODS FOR CONDUCTING MICROBIC SENSITIVITY TESTS,
WORLD HEALTH ORGANIZATION TECHNICAL REPORT SERIES NO. 210, PP. 12-17
(1961). 

/4/  SECTION 502, AS SET FORTH IN 21 U.S.C. 352, READS, IN PART, AS
FOLLOWS: 

"A DRUG OR DEVICE SHALL BE DEEMED TO BE MISBRANDED--

        .          .          .          . 

"(L) IF IT IS, OR PURPORTS TO BE, OR IS REPRESENTED AS A DRUG
COMPOSED WHOLLY OR PARTLY OF ANY KIND OF PENICILLIN, STREPTOMYCIN,
CHLORTETRACYCLINE, CHLORAMPHENICOL, BACITRACIN, OR ANY OTHER ANTIBIOTIC
DRUG, OR ANY DERIVATIVE THEREOF, UNLESS (1) IT IS FROM A BATCH WITH
RESPECT TO WHICH A CERTIFICATE OR RELEASE HAS BEEN ISSUED PURSUANT TO
EFFECT WITH RESPECT TO SUCH DRUG:  PROVIDED, THAT THIS SUBSECTION SHALL
NOT APPLY TO ANY DRUG OR CLASS OF DRUGS EXEMPTED BY REGULATIONS
PROMULGATED UNDER SECTION 357(C) OR (D) OF THIS TITLE." 

/5/  RESPONDENT'S WITNESSES ESTABLISHED THAT SENSITIVITY DISCS ARE
NOT LISTED IN THE UNITED STATES PHARMACOPOEIA OR THE NATIONAL
FORMULARY, AND THUS DO NOT COME WITHIN THAT PORTION OF THE DEFINITION
OF "DRUG" IN SEC. 201(G)(1)(A). 

/6/  THE DISTRICT COURT'S OPINION IS UNREPORTED; ITS PERTINENT
FINDING OF FACT AND CONCLUSIONS OF LAW ARE QUOTED IN THE OPINION OF THE
COURT OF APPEALS, 392 F.2D 21, 22-23 (1968). 

/7/  THE EARLIEST VERSIONS WERE S. 1944, 73D CONG., 1ST SESS.
(1933), AND S. 2000, 73D CONG., 2D SESS. (1934).  S. 2800 WAS SUCCEEDED
BY S. 5, 74TH CONG., 1ST SESS. (1935).  S. 5 DIED IN THE HOUSE, BUT WAS
SUCCEEDED BY S. 5, 75TH CONG., 1ST SESS. (1937), AND WAS THE BILL
EVENTUALLY ENACTED INTO LAW, AS SUPPLEMENTED BY S. 3073, 75TH CONG., 2D
SESS. (1937), AND H. R. 9341.  75TH CONG., 3D SESS. (1938). 

MOST OF THE ACT'S LEGISLATIVE HISTORY IS REPRINTED IN C. DUNN,
FEDERAL FOOD, DRUG, AND COSMETIC ACT (1938). 

/8/  SEE DUNN, SUPRA, N. 7, AT 214, 237, 239. 

/9/  ID., AT 286-296. 

/10/  ID., ID., AT 348-385, 429-476. 

/11/  ID., AT 429 (REMARKS OF SENATOR CLARK). 

/12/  ID., AT 369.  SENATOR BAILEY OF NORTH CAROLINA REMARKED: 

"I DO NOT THINK THE PRESIDENT OF THE UNITED STATES WOULD TOLERATE
FOR A MOMENT A PIECE OF LEGISLATION THAT DESCRIBED CRUTCHES A 'DRUGS'
AND ADVERTISING AS 'ADULTERATION,' CARRYING THE ENGLISH LANGUAGE AND
THE LAW VERY FAR." 

/13/  THE SUBSTITUTE COMMITTEE REPORT NOTED ONLY THAT:  "A DEFINITION
OF DEVICES IS PROVIDED PARALLELING THAT OF DRUGS.  THIS EXPANSION OF
THE DEFINITION OF THE TERM 'DRUG' AND THE INCLUSION OF DEVICES ARE
ESSENTIAL IF THE CONSUMER IS TO BE PROTECTED AGAINST A MULTIPLICITY OF
ABUSES NOT SUBJECT TO THE PRESENT LAW."  (S. REP. NO. 646, 74TH CONG.,
1ST SESS. (1935).  SEE DUNN, SUPRA, N. 7, AT 477. 

/4/  ID., AT 495-496. 

/15/  ID., AT 571. 

/16/  ID., AT 1235, 1247. 

/17/  THIS WAS THE "ELIXIR-SULFANILAMIDE" TRAGEDY OF SEPTEMBER
OCTOBER, 1937, WHERE NEARLY 100 PERSONS DIED AS THE RESULT OF CONSUMING
AN UNTESTED DRUG.  SEE REPORT OF THE SECRETARY OF AGRICULTURE ON DEATHS
DUE TO ELIXIR SULFANILAMIDE-MASSENGILL (SUBMITTED IN RESPONSE TO S.
RES. 194 OF NOVEMBER 16, 1937), IN DUNN, SUPRA, N. 7, AT 1316-1327. 

/18/  CF. CAWLEY V. UNITED STATES, 272 F.2D 443, 445 (C.A. 2D CIR.
1959):  "(UNLESS THEY EXPLICITLY FORBID IT, THE PURPOSE OF A STATUTORY
PROVISION IS THE BEST TEST OF THE MEANING OF THE WORDS CHOSEN." 

/19/  CF. AMP INC. V. GARDNER, 389 F.2D 825, 830 (C.A. 2D CIR.),
CERT. DENIED SUB NOM., AMP INC. V. COHEN, 393 U.S. 825 (1968), PETITION
FOR REHEARING PENDING. 

/20/  SEE W. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 449 (25TH ED.,
1965), WHERE "DRUG" IS DEFINED AS "ANY CHEMICAL COMPOUND OR ANY NON
INFECTIOUS BIOLOGICAL SUBSTANCE, NOT USED FOR ITS MECHANICAL
PROPERTIES, WHICH MAY BE ADMINISTERED TO OR USED ON OR FOR PATIENTS,
EITHER HUMAN OR ANIMAL, AS AN AID IN THE DIAGNOSIS, TREATMENT OR
PREVENTION OF DISEASE OR OTHER ABNORMAL CONDITION, FOR THE RELIEF OF
PAIN OR SUFFERING, OR TO CONTROL OR IMPROVE ANY PHYSIOLOGICAL OR
PATHOLOGICAL CONDITION." 

MR. JUSTICE DOUGLAS, BEING OF THE VIEW THAT AN ANTIBIOTIC SENSITIVITY
DISC USED BY PHYSICIANS TO AID THEM IN DETERMINING WHAT ANTIBIOTIC
DRUG, IF ANY, TO GIVE TO A PATIENT, IS A "DEVICE" AS DEFINED IN SEC.
201(H) /1/  OF THE ACT, NOT A "DRUG" AS DEFINED IN SEC. 201(G), WOULD
AFFIRM THE JUDGMENT. 

/1/  "THE TERM 'DEVICE' . . . MEANS INSTRUMENTS, APPARATUS, AND
CONTRIVANCES . . . FOR USE IN THE DIAGNOSIS . . . OF DISEASE IN MAN . .
. "  IT WOULD INDEED BE DIFFICULT TO WRITE A CLEARER DESCRIPTION OF AN
ANTIBIOTIC SENSITIVITY DISC. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL VINSON, BEATRICE ROSENBERG, RONALD L. GAINER, AND WILLIAM W.
GOODRICH. 

EDWARD BROWN WILLIAMS ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :
























MCDONALD V. BOARD OF ELECTION, 394 U.S. 802 


       MCDONALD ET AL. V. BOARD OF ELECTION COMMISSIONERS OF

           CHICAGO ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS. 

        NO. 68.  ARGUED NOVEMBER, 19, 1968.--

        DECIDED APRIL 28, 1969. 


APPELLANTS ARE QUALIFIED COOK COUNTY ELECTORS WHO ARE UNSENTENCED
INMATE, OF THE COOK COUNTY JAIL AWAITING TRIAL.  THEY ALLEGE THAT
ILLINOIS' FAILURE TO INCLUDE THEM AMONG THE CLASSES OF PERSONS ENTITLED
TO ABSENTEE BALLOTS VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR
APPELLEES HOLDING THAT EXTENDING ABSENTEE BALLOTS TO THOSE PHYSICALLY
INCAPACITATED FOR MEDICAL REASONS CONSTITUTED A PROPER AND REASONABLE
CLASSIFICATION NOT VIOLATIVE OF EQUAL PROTECTION.  HELD:  ILLINOIS'
FAILURE TO PROVIDE ABSENTEE BALLOTS FOR APPELLANTS DOES NOT VIOLATE THE
EQUAL PROTECTION CLAUSE.  PP. 806-811. 

(A) WHILE CLASSIFICATIONS "WHICH MIGHT INVADE OR RESTRAIN (VOTING
RIGHTS) MUST BE CLOSELY SCRUTINIZED AND CAREFULLY CONFINED," A MORE
EXACTING JUDICIAL SCRUTINY IS NOT NECESSARY HERE, SINCE THE
DISTINCTIONS MADE BY ILLINOIS' ABSENTEE VOTING PROVISIONS ARE NOT DRAWN
ON THE BASIS OF WEALTH OR RACE, HARPER V. VIRGINIA BOARD OF ELECTIONS,
383 U.S. 663, AND THERE IS NOTHING IN THE RECORD TO SHOW THAT ILLINOIS
HAS PRECLUDED APPELLANTS FROM VOTING.  PP. 806-808. 

(B) A STATE LEGISLATURE TRADITIONALLY HAS BEEN ALLOWED TO TAKE
REFORM "ONE STEP AT A TIME" AND NEED NOT RUN THE RISK OF LOSING ITS
ENTIRE REMEDIAL SCHEME (HERE ABSENTEE VOTING) BECAUSE IT FAILED TO
COVER EVERY GROUP THAT MIGHT HAVE BEEN INCLUDED.  PP. 809, 811. 

(C) SINCE THERE IS NOTHING TO SHOW THAT THE JUDICIALLY INCAPACITATED
APPELLANTS ARE ABSOLUTELY PROHIBITED FROM VOTING, IT IS REASONABLE FOR
ILLINOIS TO TREAT DIFFERENTLY THE PHYSICALLY HANDICAPPED.  PP. 809
810. 

(D) CONSTITUTIONAL SAFEGUARDS ARE NOT OFFENDED BY THE DIFFERENT
TREATMENT ACCORDED UNSENTENCED INMATES INCARCERATED WITHIN AND THOSE
INCARCERATED WITHOUT THEIR COUNTIES OF RESIDENCE.  P. 810. 

277 F.SUPP.  14, AFFIRMED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS AND THE CLASS THEY REPRESENT ARE UNSENTENCED INMATES
AWAITING TRIAL IN THE COOK COUNTY JAIL WHO, THOUGH THEY ARE QUALIFIED
COOK COUNTY ELECTORS, CANNOT READILY APPEAR AT THE POLLS EITHER BECAUSE
THEY ARE CHARGED WITH NONBAILABLE OFFENSES OR BECAUSE THEY HAVE BEEN
UNABLE TO POST THE BAIL IMPOSED BY THE COURTS OF ILLINOIS.  /1/  THEY
CANNOT OBTAIN ABSENTEE BALLOTS, FOR THEY CONSTITUTE ONE OF A NUMBER OF
CLASSES FOR WHOM NO PROVISION FOR ABSENTEE VOTING HAS YET BEEN MADE BY
THE ILLINOIS LEGISLATURE.  THE CONSTITUTIONALITY OF ILLINOIS' FAILURE
TO INCLUDE THEM WITH THOSE WHO ARE ENTITLED TO VOTE ABSENTEE IS THE
PRIMARY ISSUE IN THIS DIRECT APPEAL FROM A THREE-JUDGE COURT. 

THE SPECIFIC PROVISIONS ATTACKED HERE, ILL. REV. STAT., C. 46, SECS.
19-1 TO 19-3, HAVE MADE ABSENTEE BALLOTING AVAILABLE TO FOUR CLASSES OF
PERSONS:  (1) THOSE WHO ARE ABSENT FROM THE COUNTY OF THEIR RESIDENCE
FOR ANY REASON WHATEVER; (2) THOSE WHO ARE "PHYSICALLY INCAPACITATED,"
SO LONG AS THEY PRESENT AN AFFIDAVIT TO THAT EFFECT FROM A LICENSED
PHYSICIAN; (3) THOSE WHOSE OBSERVANCE OF A RELIGIOUS HOLIDAY PRECLUDES
ATTENDANCE AT THE POLLS; AND (4) THOSE WHO ARE SERVING AS POLL WATCHERS
IN PRECINCTS OTHER THAN THEIR OWN ON ELECTION DAY.  /2/  THE
AVAILABILITY OF THE ABSENTEE BALLOT IN ILLINOIS HAS BEEN EXTENDED TO
ITS PRESENT COVERAGE BY VARIOUS AMENDMENTS OVER THE LAST 50 YEARS. 
PRIOR TO 1917, ILLINOIS HAD NO PROVISION FOR ABSENTEE VOTING, REQUIRING
PERSONAL ATTENDANCE AT THE POLLS, AND IN THAT YEAR THE LEGISLATURE MADE
ABSENTEE VOTING AVAILABLE TO THOSE WHO WOULD BE ABSENT FROM THE COUNTY
ON BUSINESS OR OTHER DUTIES.  IN 1944 ABSENTEE VOTING WAS MADE
AVAILABLE TO ALL THOSE ABSENT FROM THE COUNTY FOR ANY REASON.  THE
PROVISIONS FOR THOSE REMAINING IN THE COUNTY BUT UNABLE TO APPEAR AT
THE POLLS BECAUSE OF PHYSICAL INCAPACITY, RELIGIOUS HOLIDAYS, OR
ELECTION DUTIES WERE ADDED IN 1955, 1961, AND 1967, RESPECTIVELY. 

ON MARCH 29, 1967, APPELLANTS MADE TIMELY /3/  APPLICATION FOR
ABSENTEE BALLOTS FOR THE APRIL 4 PRIMARY BECAUSE OF THEIR PHYSICAL
INABILITY TO APPEAR AT THE POLLS ON THAT ELECTION DAY.  THE
APPLICATIONS WERE ACCOMPANIED BY AN AFFIDAVIT FROM THE WARDEN OF THE
COOK COUNTY JAIL ATTESTING TO THAT INABILITY.  THESE APPLICATIONS WERE
REFUSED BY THE APPELLEE BOARD OF ELECTION COMMISSIONERS ON THE GROUND
THAT APPELLANTS WERE NOT "PHYSICALLY INCAPACITATED" WITHIN THE MEANING
OF SECS. 19-1 AND 19-2 OF THE ILLINOIS ELECTION CODE.  ON THE SAME DAY
APPELLANTS FILED A COMPLAINT, ALLEGING THAT THEY WERE
UNCONSTITUTIONALLY EXCLUDED FROM THE COVERAGE OF THE ABSENTEE
PROVISIONS.  THEY REQUESTED THAT A THREE-JUDGE COURT BE CONVENED TO
RULE THE PROVISIONS VIOLATIVE OF EQUAL PROTECTION INSOFAR AS THE
PROVISIONS REQUIRED DENIAL OF AN ABSENTEE BALLOT TO ONE JUDICIALLY
INCAPACITATED WHILE MAKING IT AVAILABLE AT THE SAME TIME TO ONE
MEDICALLY INCAPACITATED; AND THEY SOUGHT AN INJUNCTION TO RESTRAIN
APPELLEE BOARD "FROM REFUSING TO GRANT (APPELLANTS") TIMELY
APPLICATIONS FOR ABSENTEE BALLOTS."  THE DISTRICT COURT GRANTED
APPELLANTS' REQUEST FOR TEMPORARY RELIEF ON MARCH 30, BEFORE THE THREE
JUDGE COURT WAS CONVENED, AND ORDERED THE BOARD TO ISSUE BALLOTS TO
QUALIFIED ILLINOIS ELECTORS AWAITING TRIAL IN THE COOK COUNTY JAIL. 
/4/  BOTH PARTIES THEN FILED MOTIONS FOR SUMMARY JUDGMENT, THE BOARD
ASSERTING THAT TO HONOR THE APPLICATIONS WOULD SUBJECT ITS MEMBERS TO
CRIMINAL LIABILITY UNDER ILLINOIS LAW.  /5/ 

ON DECEMBER 11, THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR THE
BOARD, HOLDING THAT THE ILLINOIS PROVISIONS EXTENDING ABSENTEE VOTING
PRIVILEGES TO THOSE PHYSICALLY INCAPACITATED BECAUSE OF MEDICAL REASONS
FROM APPEARING AT THE POLLS CONSTITUTED A PROPER AND REASONABLE
LEGISLATIVE CLASSIFICATION NOT VIOLATIVE OF EQUAL PROTECTION.  THE CASE
WAS BROUGHT HERE BY APPELLANTS ON DIRECT APPEAL.  390 U.S. 1038 (1968),
AND WE AFFIRM. 

APPELLANTS ARGUE THAT ILLINOIS' ABSENTEE BALLOT PROVISIONS VIOLATE
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT FOR TWO
REASONS.  FIRST, THEY CONTEND THAT SINCE THE DISTINCTION BETWEEN THOSE
MEDICALLY INCAPACITATED AND THOSE "JUDICIALLY" INCAPACITATED BEARS NO
REASONABLE RELATIONSHIP TO ANY LEGITIMATE STATE OBJECTIVE, THE
CLASSIFICATIONS ARE ARBITRARY AND THEREFORE IN VIOLATION OF EQUAL
PROTECTION.  SECONDLY, THEY ARGUE THAT SINCE PRETRIAL DETAINEES
IMPRISONED IN OTHER STATES OR IN COUNTIES WITHIN THE STATE OTHER THAN
THOSE OF THEIR OWN RESIDENCE CAN VOTE ABSENTEE AS ILLINOIS CITIZENS
ABSENT FROM THE COUNTY FOR ANY REASON, IT IS CLEARLY ARBITRARY TO DENY
THE ABSENTEE BALLOT TO OTHER UNSENTENCED INMATES SIMPLY BECAUSE THEY
HAPPEN TO BE INCARCERATED WITHIN THEIR OWN RESIDENT COUNTIES. 
UNDERLYING APPELLANTS' CONTENTIONS IS THE ASSERTION THAT SINCE VOTING
RIGHTS ARE INVOLVED, THERE IS A NARROWER SCOPE FOR THE OPERATION OF THE
PRESUMPTION OF CONSTITUTIONALITY THAN WOULD ORDINARILY BE THE CASE WITH
STATE LEGISLATION CHALLENGED IN THIS COURT.  SEE YICK WO V. HOPKINS,
118 U.S. 356, 370 (1886). 

BEFORE CONFRONTING APPELLANTS' CHALLENGE TO ILLINOIS' ABSENTEE
PROVISIONS, WE MUST DETERMINE INITIALLY HOW STRINGENT A STANDARD TO USE
IN EVALUATING THE CLASSIFICATIONS MADE THEREUNDER AND WHETHER THE
DISTINCTIONS MUST BE JUSTIFIED BY A COMPELLING STATE INTEREST; FOR
APPELLANTS ASSERT THAT WE ARE DEALING GENERALLY WITH AN ALLEGED
INFRINGEMENT OF A BASIC, FUNDAMENTAL RIGHT.  SEE, E.G., REYNOLDS V.
SIMS, 377 U.S. 533 (1964); HARPER V. VIRGINIA BOARD OF ELECTIONS, 383
U.S. 663 (1966).  THUS, WHILE THE "STATES HAVE LONG BEEN HELD TO HAVE
BROAD POWERS TO DETERMINE THE CONDITIONS UNDER WHICH THE RIGHT OF
SUFFRAGE MAY BE EXERCISED,"  LASSITER V. NORTHAMPTON COUNTY BOARD OF
ELECTIONS, 360 U.S. 45, 50 (1959), WE HAVE HELD THAT ONCE THE STATES
GRANT THE FRANCHISE, THEY MUST NOT DO SO IN A DISCRIMINATORY MANNER. 
SEE CARRINGTON V. RASH, 380 U.S. 89 (1965).  MORE IMPORTANTLY, HOWEVER,
WE HAVE HELD THAT BECAUSE OF THE OVERRIDING IMPORTANCE OF VOTING
RIGHTS, CLASSIFICATIONS "WHICH MIGHT INVADE OR RESTRAIN THEM MUST BE
CLOSELY SCRUTINIZED AND CAREFULLY CONFINED" WHERE THOSE RIGHTS ARE
ASSERTED UNDER THE EQUAL PROTECTION CLAUSE; HARPER V. VIRGINIA BOARD OF
ELECTIONS, SUPRA, AT 670.  AND A CAREFUL EXAMINATION ON OUR PART IS
ESPECIALLY WARRANTED WHERE LINES ARE DRAWN ON THE BASIS OF WEALTH OR
RACE, HARPER V. VIRGINIA BOARD OF ELECTIONS, SUPRA, TWO FACTORS WHICH
WOULD INDEPENDENTLY RENDER A CLASSIFICATION HIGHLY SUSPECT AND THEREBY
DEMAND A MORE EXACTING JUDICIAL SCRUTINY.  DOUGLAS V. CALIFORNIA, 372
U.S. 353 (1963); MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 192 (1964). 

SUCH AN EXACTING APPROACH IS NOT NECESSARY HERE, HOWEVER, FOR TWO
READILY APPARENT REASONS.  FIRST, THE DISTINCTIONS MADE BY ILLINOIS'
ABSENTEE PROVISIONS ARE NOT DRAWN ON THE BASIS OF WEALTH OR RACE. 
SECONDLY, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE ILLINOIS
STATUTORY SCHEME HAS AN IMPACT ON APPELLANTS' ABILITY TO EXERCISE THE
FUNDAMENTAL RIGHT TO VOTE.  IT IS THUS NOT THE RIGHT TO VOTE THAT IS AT
STAKE HERE BUT A CLAIMED RIGHT TO RECEIVE ABSENTEE BALLOTS.  DESPITE
APPELLANTS' CLAIM TO THE CONTRARY, THE ABSENTEE STATUTES, WHICH ARE
DESIGNED TO MAKE VOTING MORE AVAILABLE TO SOME GROUPS WHO CANNOT EASILY
GET TO THE POLLS, DO NOT THEMSELVES DENY APPELLANTS THE EXERCISE OF THE
FRANCHISE; NOT, INDEED, DOES ILLINOIS' ELECTION CODE SO OPERATE AS A
WHOLE, FOR THE STATE'S STATUTES SPECIFICALLY DISENFRANCHISE ONLY THOSE
WHO HAVE BEEN CONVICTED AND SENTENCED, AND NOT THOSE SIMILARLY SITUATED
TO APPELLANTS.  ILL. REV. STAT., C. 46, SEC. 3-5 (1967).  FACED AS WE
ARE WITH A CONSTITUTIONAL QUESTION, WE CANNOT LIGHTLY ASSUME, WITH
NOTHING IN THE RECORD TO SUPPORT SUCH AN ASSUMPTION, THAT ILLINOIS HAS
IN FACT PRECLUDED APPELLANTS FROM VOTING.  /6/ WE ARE THEN LEFT WITH
THE MORE TRADITIONAL STANDARDS FOR EVALUATING APPELLANTS' EQUAL
PROTECTION CLAIMS.  /7/  THOUGH THE WIDE LEEWAY ALLOWED THE STATES BY
THE FOURTEENTH AMENDMENT TO ENACT LEGISLATION THAT APPEARS TO AFFECT
SIMILARLY SITUATED PEOPLE DIFFERENTLY, AND THE PRESUMPTION OF STATUTORY
VALIDITY THAT ADHERES THERETO, ADMIT OF NO SETTLED FORMULA, SOME BASIC
GUIDELINES HAVE BEEN FIRMLY FIXED.  THE DISTINCTIONS DRAWN BY A
CHALLENGED STATUTE MUST BEAR SOME RATIONAL RELATIONSHIP TO A LEGITIMATE
STATE END AND WILL BE SET ASIDE AS VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE ONLY IF BASED ON REASONS TOTALLY UNRELATED TO THE PURSUIT OF
THAT GOAL.  LEGISLATURES ARE PRESUMED TO HAVE ACTED CONSTITUTIONALLY
EVEN IF SOURCE MATERIALS NORMALLY RESORTED TO FOR ASCERTAINING THEIR
GROUNDS FOR ACTION ARE OTHERWISE SILENT, AND THEIR STATUTORY
CLASSIFICATIONS WILL BE SET ASIDE ONLY IF NO GROUNDS CAN BE CONCEIVED
TO JUSTIFY THEM.  SEE MCGOWAN V. MARYLAND, 366 U.S. 420 (1961); KOTCH
V. BOARD OF RIVER PORT PILOT COMMISSIONERS, 330 U.S. 552 (1947);
LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61 (1911).  WITH THIS
MUCH DISCRETION, A LEGISLATURE TRADITIONALLY HAS BEEN ALLOWED TO TAKE
REFORM "ONE STEP AT A TIME, ADDRESSING ITSELF TO THE PHASE OF THE
PROBLEM WHICH SEEMS MOST ACUTE TO THE LEGISLATIVE MIND," WILLIAMSON V.
LEE OPTICAL OF OKLAHOMA, INC., 348 U.S. 483, 489 (1955); AND A
LEGISLATURE NEED NOT RUN THE RISK OF LOSING AN ENTIRE REMEDIAL SCHEME
SIMPLY BECAUSE IT FAILED, THROUGH INADVERTENCE OR OTHERWISE TO COVER
EVERY EVIL THAT MIGHT CONCEIVABLY HAVE BEEN ATTACKED.  SEE OZAN LUMBER
CO. V. UNION COUNTY NATIONAL BANK, 207 U.S. 251 (1907). 

SINCE THERE IS NOTHING TO SHOW THAT A JUDICIALLY INCAPACITATED,
PRETRIAL DETAINEE IS ABSOLUTELY PROHIBITED FROM EXERCISING THE
FRANCHISE, IT SEEMS QUITE REASONABLE FOR ILLINOIS' LEGISLATURE TO TREAT
DIFFERENTLY THE PHYSICALLY HANDICAPPED, WHO MUST, AFTER ALL, PRESENT
AFFIDAVITS FROM THEIR PHYSICIANS ATTESTING TO AN ABSOLUTE INABILITY TO
APPEAR PERSONALLY AT THE POLLS IN ORDER TO QUALIFY FOR AN ABSENTEE
BALLOT.  ILLINOIS COULD, OF COURSE, MAKE VOTING EASIER FOR ALL
CONCERNED BY EXTENDING ABSENTEE VOTING PRIVILEGES TO THOSE IN
APPELLANTS' CLASS.  ITS FAILURE TO DO SO, HOWEVER, HARDLY SEEMS
ARBITRARY, PARTICULARLY IN VIEW OF THE MANY OTHER CLASSES OF ILLINOIS
CITIZENS NOT COVERED BY THE ABSENTEE PROVISION, FOR WHOM VOTING MAY BE
EXTREMELY DIFFICULT, IF NOT PRACTICALLY IMPOSSIBLE.  /8/ 

SIMILARLY, THE DIFFERENT TREATMENT ACCORDED UNSENTENCED INMATES
INCARCERATED WITHIN AND THOSE INCARCERATED WITHOUT THEIR RESIDENT
COUNTIES MAY REFLECT A LEGISLATIVE DETERMINATION THAT WITHOUT THE
PROTECTION OF THE VOTING BOOTH, LOCAL OFFICIALS MIGHT BE TOO TEMPTED TO
TRY TO INFLUENCE THE LOCAL VOTE OF IN-COUNTY INMATES.  SUCH A
TEMPTATION WITH ITS ATTENDANT RISKS TO PRISON DISCIPLINE WOULD, OF
COURSE, BE MUCH LESS URGENT WITH PRISONERS INCARCERATED OUT OF STATE OR
OUTSIDE THEIR RESIDENT COUNTIES.  CONSTITUTIONAL SAFEGUARDS ARE NOT
THEREBY OFFENDED SIMPLY BECAUSE SOME PRISONERS, AS A RESULT, FIND
VOTING MORE CONVENIENT THAN APPELLANTS. 

WE ARE SATISFIED THEN THAT APPELLANTS' CHALLENGE TO THE ALLEGEDLY
UNCONSTITUTIONAL INCOMPLETENESS OF ILLINOIS' ABSENTEE VOTING PROVISIONS
CANNOT BE SUSTAINED.  IRONICALLY, IT IS ILLINOIS' WILLINGNESS TO GO
FURTHER THAN MANY STATES /9/  IN EXTENDING THE ABSENTEE VOTING
PRIVILEGES SO AS TO INCLUDE EVEN THOSE ATTENDING TO ELECTION DUTIES
THAT HAS PROVIDED APPELLANTS WITH A BASIS FOR ARGUING THAT THE
PROVISIONS OPERATE IN AN INVIDIOUSLY DISCRIMINATORY FASHION TO DENY
THEM A MORE CONVENIENT METHOD OF EXERCISING THE FRANCHISE.  INDEED,
APPELLANTS' CHALLENGE SEEMS TO DISCLOSE NOT AN ARBITRARY SCHEME OR PLAN
BUT, RATHER, THE VERY OPPOSITE-- A CONSISTENT AND LAUDABLE STATE POLICY
OF ADDING, OVER A 50-YEAR PERIOD, GROUPS TO THE ABSENTEE COVERAGE AS
THEIR EXISTENCE COMES TO THE ATTENTION OF THE LEGISLATURE.  THAT
ILLINOIS HAS NOT GONE STILL FURTHER, AS PERHAPS IT MIGHT, SHOULD NOT
RENDER VOID ITS REMEDIAL LEGISLATION, WHICH NEED NOT, AS WE HAVE STATED
BEFORE, "STRIKE AT ALL EVILS AT THE SAME TIME."  SEMLER V. DENTAL
EXAMINERS, 294 U.S. 608, 610 (1935). 

ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS

          AFFIRMED. 

/1/  AT THE TIME OF BRINGING SUIT, APPELLANT MCDONALD WAS BEING HELD
WITHOUT BAIL ON A CHARGE OF MURDER; HIS SUBSEQUENT TRIAL RESULTED IN A
HUNG JURY, AND HE THEN PLEADED TO A REDUCED CHARGE OF MANSLAUGHTER, A
BAILABLE OFFENSE.  APPELLANT BYRD, WHO WAS DISCHARGED AFTER HIS ROBBERY
COMPLAINT WAS DISMISSED AT HIS PRELIMINARY HEARING, HAD BEEN HELD
BECAUSE OF HIS INABILITY TO POST A $5,000 BOND. 

/2/  SECTION 19-1 OF THE ILLINOIS ELECTION CODE IDENTIFIES THOSE
PERSONS WHO CAN APPLY FOR ABSENTEE BALLOTS.  SECTION 19-2 PROVIDES FOR
THE TIME AND MANNER IN WHICH SUCH APPLICATION MUST BE MADE, INCLUDING
THE REQUIREMENT THAT AFFIDAVITS FROM A LICENSED ATTENDING PHYSICIAN OR
A CHRISTIAN SCIENCE PRACTITIONER ACCOMPANY APPLICATIONS FROM THOSE
PHYSICALLY INCAPACITATED.  SECTION 19-3 SETS OUT THE FORMAT OF THE
APPLICATIONS AND ACCOMPANYING AFFIDAVITS.  IN ADDITION TO THEIR
ALLEGATIONS THAT THESE PROVISIONS VIOLATE EQUAL PROTECTION, APPELLANTS
ALSO SOUGHT BELOW A RULING THAT APPELLEE BOARD, IN INTERPRETING THESE
LAWS, HAD MISCONSTRUED THEM NOT TO INCLUDE JUDICIALLY INCAPACITATED
PERSONS.  READING SEC. 19-1 TOGETHER WITH SEC. 19-2, THE DISTRICT COURT
CONCLUDED THAT APPELLANTS WERE NOT INCLUDED WITHIN THE COVERAGE OF THE
PROVISIONS, AND THIS STATUTORY CONSTRUCTION IS NOT CHALLENGED HERE. 
/3/  APPELLANTS DO NOT CHALLENGE THE PROVISIONS SETTING OUT THE TIME
WITHIN WHICH THE APPLICATIONS MUST BE MADE AND THUS CONCEDE THAT THOSE
PERSONS INCARCERATED JUST PRIOR TO ELECTION DAY ARE NOT ENTITLED TO AN
ABSENTEE BALLOT. 

/4/  THE GRANT OF TEMPORARY RELIEF WAS BASED IN PART ON AN EARLIER
SUIT BROUGHT BY APPELLANT MCDONALD IN THE DISTRICT COURT FOR SUCH
EQUITABLE RELIEF AS WOULD ALLOW HIM TO VOTE IN THE FEBRUARY 28, 1967,
PRIMARY AND ALDERMANIC ELECTION IN CHICAGO.  IN ORDERING THE BOARD TO
FURNISH APPELLANT WITH AN ABSENTEE BALLOT FOR THAT ELECTION, THE ONE
JUDGE COURT NOTED THAT ILLINOIS STATUTES SPECIFICALLY DISENFRANCHISED
ONLY THOSE WHO WERE CONVICTED AND SENTENCED (ILL. REV. STAT., C. 46,
SEC. 3-5 (1967)), THAT PERSONS AWAITING TRIAL IN JAILS IN COUNTIES
OTHER THAN THEIR RESIDENT COUNTIES COULD QUALIFY FOR AN ABSENTEE BALLOT
AND THAT THE ILLINOIS LEGISLATURE DID NOT INTEND TO EXCLUDE INDIVIDUALS
IN APPELLANT'S CIRCUMSTANCES FROM AMONG THOSE "PHYSICALLY
INCAPACITATED."  MCDONALD V. BOARD OF ELECTION COMMISSIONERS OF
CHICAGO, 265 F.SUPP.  816 (1967). 

/5/  ILL. REV. STAT., C. 46, SECS. 29-A-1, 19A-5 (1967), PROVIDE FOR
PENALTIES OF UP TO FIVE YEARS' IMPRISONMENT, OR A FINE NOT TO EXCEED
$5,000, OR BOTH, FOR VIOLATING THE ILLINOIS ELECTION CODE.  ALTHOUGH
THERE ARE NO CONTROLLING ILLINOIS CASES, NEITHER PARTY CONTENDS HERE
THAT THE ABSENTEE BALLOT PROVISIONS ARE PERMISSIVE ONLY, ALLOWING THE
GRANT OF ABSENTEE BALLOTS TO ANY ONE NOT SPECIFIED IN THE STATUTE. 

/6/ APPELLANTS AGREE THAT THE RECORD IS BARREN OF ANY INDICATION
THAT STATE MIGHT NOT, FOR INSTANCE, POSSIBLY FURNISH THE JAILS WITH
SPECIAL POLLING BOOTHS OR FACILITIES ON ELECTION DAY, OR PROVIDE
GUARDED TRANSPORTATION TO THE POLLS THEMSELVES FOR CERTAIN INMATES, OR
ENTERTAIN MOTIONS FOR TEMPORARY REDUCTIONS IN BAIL TO ALLOW SOME
INMATES TO GET TO THE POLLS ON THEIR OWN. 

/7/  APPELLANTS MAKE TWO ADDITIONAL CLAIMS HERE, WHICH WERE ASSERTED
BELOW AND WHICH ARE UNRELATED TO THEIR ARGUMENT BASED ON THE STATUTE
AND ITS ALLEGED DENIAL OF EQUAL PROTECTION.  THEY ALLEGE FIRST THAT,
WHOLLY APART FROM THE ABSENTEE PROVISIONS, THEY ARE CONSTITUTIONALLY
ENTITLED TO CASE THEIR BALLOTS BY MAIL IN ORDER TO AVOID AN
IMPERMISSIBLE CONSEQUENCE OF PRETRIAL DETENTION.  THEY ARGUE THAT OF
ALL VOTERS THEY ARE THE ONLY CLASS FORCIBLY RESTRAINED BY THE STATE
FROM ATTENDING THE POLLS IN PERSON; AND THEY CONTEND THAT THEY SHOULD
GET AN ABSENTEE BALLOT ONLY BECAUSE ILLINOIS HAS SET UP SUCH A SYSTEM,
OBVIATING ANY NECESSITY TO MARCH THEM TO THE POLLS UNDER ARMED GUARD--
A PROCEDURE THEY CONCEDE WOULD BE DISRUPTIVE AND EXPENSIVE.  APPELLANTS
CLAIM SECONDLY THAT TO THE EXTENT THAT THEY CANNOT AFFORD THE POSTED
BAIL, THEY ARE BEING DENIED THEIR RIGHT TO VOTE SOLELY BECAUSE OF THEIR
INDIGENCY, CONTRARY TO HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S.
663 (1966).  SINCE THERE IS NOTHING IN THE RECORD TO SHOW THAT
APPELLANTS ARE IN FACT ABSOLUTELY PROHIBITED FROM VOTING BY THE STATE,
SEE N. 6, SUPRA, WE NEED NOT REACH THESE TWO CONTENTIONS. 

/8/  A NUMBER OF IDENTIFIABLE GROUPS ARE NOT YET ENTITLED TO VOTE
ABSENTEE UNDER ILLINOIS LEGISLATION:  THOSE SERVING ON JURIES WITHIN
THE COUNTY OF THEIR RESIDENCE, MOTHERS WITH CHILDREN WHO CANNOT AFFORD
A BABY SITTER, PERSONS ATTENDING ILL RELATIONS WITHIN THEIR OWN COUNTY,
SERVICEMEN STATIONED IN THEIR OWN COUNTIES, DOCTORS WHO ARE OFTEN
CALLED ON TO DO EMERGENCY WORK, AND BUSINESSMEN CALLED AWAY FROM THEIR
PRECINCTS ON BUSINESS.  ON THE OTHER HAND, ANY PERSON IN THE ABOVE
GROUPS, INCLUDING AN UNSENTENCED PRISONER, PRESUMABLY CAN GET AN
ABSENTEE BALLOT IF HE IS OUTSIDE HIS RESIDENT COUNTY, ILL, OR OBSERVING
A RELIGIOUS HOLIDAY. 

/9/  ONLY THREE OTHER STATES MAKE PROVISION FOR ELECTION DUTIES, AND
14 OTHERS FOR RELIGIOUS OBSERVANCE.  SEVERAL STATES HAVE GONE FURTHER
THAN ILLINOIS, WISCONSIN MAKING PROVISION FOR JURY DUTY, WIS. STAT.
SEC. 6.85 (1967), AND ALASKA, CALIFORNIA, AND OREGON MAKING PROVISION
FOR INACCESSIBILITY OF POLLS, ALASKA STAT. SEC. 15.20.010 (1962), CAL.
ELECTIONS CODE SEC. 14620 (1961), ORE.  REV.  STAT. SECS.
253.010(1)(A), 253.510 (1965).  MAIN APPEARS TO BE THE ONLY STATE TO
ALLOW THE ABSENTEE BALLOT FOR ABSENCE FROM THE POLLS FOR ANY
"SUFFICIENT" REASON, ME. REV. STAT. ANN., TIT. 21, SECS. 1251, 1306
(1964). 

ON THE OTHER HAND, ALL STATES MAKE PROVISIONS FOR THE ARMED FORCES,
EITHER EXPRESSLY OR IMPLIEDLY.  ALL BUT FIVE STATES HAVE EXTENDED THE
BALLOT TO THE PHYSICALLY DISABLED, AND ONLY SIX REQUIRE ABSENCE FROM
THE STATE, RATHER THAN COUNTY OR PRECINCT, AS A CONDITION.  SEE
APPELLANTS' SURVEY OF STATE LAWS SUBMITTED AFTER ARGUMENT. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART CONCUR IN THE RESULT. 

STANLEY A. BASS ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WAS MARSHALL PATNER. 

STANLEY T. KUSPER, JR., ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON
THE BRIEF WAS MATTHEW J. BEEMSTERBOER. 
..END :










SULLIVAN V. ALABAMA STATE BAR, 394 U.S. 812 


       SULLIVAN V. ALABAMA STATE BAR ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

         DISTRICT OF ALABAMA. 

        NO. 1170.  DECIDED APRIL 28, 1969. 


295 F. SUPP. 1216, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

FRED BLANTON, JR., FOR APPELLANT. 

TRUMAN HOBBS FOR APPELLEES. 
..END :










BURTON V. SILLS, 394 U.S. 812 


       BURTON ET AL. V. SILLS, ATTORNEY GENERAL OF NEW JERSEY, ET

           AL.

        APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

        NO. 1158.  DECIDED APRIL 28, 1969. 


53 N.J. 86, 248 A.2D 521, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

WILLIAM E. OZZARD FOR APPELLANTS. 

ARTHUR J. SILLS, ATTORNEY GENERAL OF NEW JERSEY, PRO SE, MARILYN
LOFTUS SCHAUER, ACTING FIRST ASSISTANT ATTORNEY GENERAL, AND STEPHEN
SKILLMAN, DEPUTY ATTORNEY GENERAL, FOR APPELLEES. 
..END :



LOMBARDY V. PETER KIEWIT SONS' CO., 394 U.S. 813 


       LOMBARDY ET AL. V. PETER KIEWIT SONS' CO. ET AL.

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 1168.  DECIDED APRIL 28, 1969 


266 CAL.APP.2D 599, 72 CAL.RPTR.  240, APPEAL DISMISSED AND
CERTIORARI DENIED. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING 9HE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

HYMAN GOLDMAN FOR APPELLANTS. 

HENRY F. WALKER FOR PETER KIEWIT SONS' CO., AND JACK M. MILLER AND
ROBERT L. MEYER FOR THE STATE OF CALIFORNIA, APPELLEES. 
..END :



BINGLER V. JOHNSON, 394 U.S. 741 


       BINGLER, DISTRICT DIRECTOR OF INTERNAL REVENUE V. JOHNSON ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT. 

        NO. 473.  ARGUED MARCH 3-4, 1969.-- DECIDED APRIL 23,
1969. 


RESPONDENTS, WHO HELD ENGINEERING POSITIONS AT A LABORATORY WHICH THE
WESTINGHOUSE ELECTRIC CORP. OPERATES UNDER CONTRACT WITH THE ATOMIC
ENERGY COMMISSION, PARTICIPATED IN A TWO-PHASE FELLOWSHIP PROGRAM.  IN
THE FIRST, OR "WORK-STUDY," PHASE, A PARTICIPATING EMPLOYEE HOLDS A
REGULAR JOB AT WESTINGHOUSE AND ATTENDS UNIVERSITY CLASSES PART TIME,
FOR WHICH THE TUITION AND OTHER EXPENSES ARE PAID BY THE COMPANY.  A
QUALIFIED EMPLOYEE MAY THEN BE GRANTED AN EDUCATIONAL LEAVE OF ABSENCE
(THE SECOND PHASE) TO WORK ON HIS DOCTORAL DISSERTATION, APPROVAL OF
WHICH BY WESTINGHOUSE AND THE AEC IS BASED PARTLY ON GENERAL RELEVANCY
TO WORK AT THE LABORATORY.  HE THEN DEVOTES FULL TIME TO THE
DISSERTATION FOR A PERIOD OF SEVERAL MONTHS, DURING WHICH HE RECEIVES A
"STIPEND" FROM WESTINGHOUSE RANGING FROM 70% TO 90% OF HIS PRIOR SALARY
PLUS A FAMILY ALLOWANCE; RETAINS SENIORITY STATUS; AND RECEIVES
INSURANCE, STOCK OPTION PRIVILEGES, AND OTHER EMPLOYEE BENEFITS.  HE IS
OBLIGATED TO SUBMIT PROGRESS REPORTS WHILE ON LEAVE, AND ON ITS
COMPLETION TO RETURN TO WESTINGHOUSE FOR AT LEAST TWO YEARS. 
RESPONDENTS FILED REFUND CLAIMS FOR FEDERAL INCOME TAXES WITHHELD BY
WESTINGHOUSE FROM THE AMOUNTS PAID THEM WHILE ON LEAVE, CONTENDING THAT
THESE PAYMENTS WERE "SCHOLARSHIPS" AND HENCE EXCLUDABLE UNDER SEC. 117
OF THE INTERNAL REVENUE CODE OF 1954.  ON REJECTION OF THEIR CLAIMS
RESPONDENTS BROUGHT THIS REFUND SUIT IN DISTRICT COURT.  AT THE TRIAL
THE COURT INSTRUCTED THE JURY IN ACCORDANCE WITH TREAS. REG. SEC. 1.117
4(C), WHICH WAS PROMULGATED UNDER SEC. 117 AND PROVIDES THAT AMOUNTS
REPRESENTING "COMPENSATION FOR . . . EMPLOYMENT SERVICES" AND AMOUNTS
PAID "TO ENABLE (AN INDIVIDUAL) TO PURSUE STUDIES . . . PRIMARILY FOR
THE BENEFIT OF THE GRANTOR," ARE NOT EXCLUDABLE AS SCHOLARSHIPS.  THE
JURY FOUND THAT THE AMOUNTS THAT RESPONDENTS RECEIVED WERE TAXABLE
INCOME.  THE COURT OF APPEALS, HOLDING THE REGULATION INVALID,
REVERSED.  HELD:  TREAS. REG. SEC. 1.117-4(C) IS VALID, AND THE JURY
PROPERLY FOUND THAT THE AMOUNTS RESPONDENTS RECEIVED WERE NOT
EXCLUDABLE "SCHOLARSHIPS" BUT TAXABLE "COMPENSATION."  PP. 747-758. 

396 F.2D 258, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON IN THIS CASE TO EXAMINE FOR THE FIRST TIME SEC.
117 OF THE INTERNAL REVENUE CODE OF 1954, WHICH EXCLUDES FROM A
TAXPAYER'S GROSS INCOME AMOUNTS RECEIVED AS "SCHOLARSHIPS" AND
"FELLOWSHIPS."  THE QUESTION BEFORE US CONCERNS THE TAX TREATMENT OF
PAYMENTS RECEIVED BY THE RESPONDENTS /1/  FROM THEIR EMPLOYER, THE
WESTINGHOUSE ELECTRIC CORPORATION, WHILE THEY WERE ON "EDUCATIONAL
LEAVE" FROM THEIR JOBS WITH WESTINGHOUSE. 

DURING THE PERIOD HERE IN QUESTION THE RESPONDENTS HELD ENGINEERING
POSITIONS AT THE BETTIS ATOMIC POWER LABORATORY IN PITTSBURGH,
PENNSYLVANIA, WHICH WESTINGHOUSE OPERATES UNDER A "COST-PLUS" CONTRACT
WITH THE ATOMIC ENERGY COMMISSION.  THEIR EMPLOYMENT STATUS ENABLED
THEM TO PARTICIPATE IN WHAT IS KNOWN AS THE WESTINGHOUSE BETTIS
FELLOWSHIP AND DOCTORAL PROGRAM.  THAT PROGRAM, DESIGNED BOTH TO
ATTRACT NEW EMPLOYEES SEEKING FURTHER EDUCATION AND TO GIVE ADVANCED
TRAINING TO PERSONS ALREADY EMPLOYED AT BETTIS, OFFERS A TWO-PHASE
SCHEDULE OF SUBSIDIZED POSTGRADUATE STUDY IN ENGINEERING, PHYSICS, OR
MATHEMATICS. 

UNDER THE FIRST, OR "WORK-STUDY," PHASE, A PARTICIPATING EMPLOYEE
HOLDS A REGULAR JOB WITH WESTINGHOUSE AND IN ADDITION PURSUES A COURSE
OF STUDY AT EITHER THE UNIVERSITY OF PITTSBURGH OR CARNEGIE-MELLON
UNIVERSITY.  /2/  THE EMPLOYEE IS PAID FOR A 40-HOUR WORK WEEK, BUT MAY
RECEIVE UP TO EIGHT HOURS OF "RELEASE TIME" PER WEEK FOR THE PURPOSE OF
ATTENDING CLASSES.  /3/  "TUITION REMUNERATION," AS WELL AS
REIMBURSEMENT FOR VARIOUS INCIDENTAL ACADEMIC EXPENSES, IS PROVIDED BY
THE COMPANY.  /4/ 

WHEN AN EMPLOYEE HAS COMPLETED ALL PRELIMINARY REQUIREMENTS FOR HIS
DOCTORATE, HE MAY APPLY FOR AN EDUCATIONAL LEAVE OF ABSENCE, WHICH
CONSTITUTES THE SECOND PHASE OF THE FELLOWSHIP PROGRAM.  HE MUST SUBMIT
A PROPOSED DISSERTATION TOPIC FOR APPROVAL BY WESTINGHOUSE AND THE
AEC.  APPROVAL IS BASED, INTER ALIA, ON A DETERMINATION THAT THE TOPIC
HAS AT LEAST SOME GENERAL RELEVANCE TO THE WORK DONE AT BETTIS.  IF THE
LEAVE OF ABSENCE IS SECURED, THE EMPLOYEE DEVOTES HIS FULL ATTENTION,
FOR A PERIOD OF AT LEAST SEVERAL MONTHS, /5/  TO FULFILLING HIS
DISSERTATION REQUIREMENT.  DURING THIS PERIOD HE RECEIVES A "STIPEND"
FROM WESTINGHOUSE, IN AN AMOUNT BASED ON A SPECIFIED PERCENTAGE
(RANGING FROM 70% TO 90%) OF HIS PRIOR SALARY PLUS "ADDERS," DEPENDING
UPON THE SIZE OF HIS FAMILY.  /6/  HE ALSO RETAINS HIS SENIORITY STATUS
AND RECEIVES ALL EMPLOYEE BENEFITS, SUCH AS INSURANCE AND STOCK OPTION
PRIVILEGES.  IN RETURN HE NOT ONLY MUST SUBMIT PERIODIC PROGRESS
REPORTS, BUT UNDER THE WRITTEN AGREEMENT THAT ALL PARTICIPANTS IN THE
PROGRAM MUST SIGN, ALSO IS OBLIGATED TO RETURN TO THE EMPLOY OF
WESTINGHOUSE FOR A PERIOD OF AT LEAST TOW YEARS FOLLOWING COMPLETION OF
HIS LEAVE.  /7/  UPON RETURN HE IS, ACCORDING TO THE AGREEMENT, TO
"ASSUME . . . DUTIES COMMENSURATE WITH HIS EDUCATION AND EXPERIENCE,"
AT A SALARY "COMMENSURATE WITH THE DUTIES ASSIGNED." 

THE RESPONDENTS ALL TOOK LEAVES UNDER THE FELLOWSHIP PROGRAM AT
VARYING TIMES DURING THE PERIOD 1960-1962, /8/  AND EVENTUALLY RECEIVED
THEIR DOCTORAL DEGREES IN ENGINEERING.  RESPONDENTS JOHNSON AND
POMERANTZ TOOK LEAVES OF NINE MONTHS AND WERE PAID $5,670 EACH,
REPRESENTING 80% OF THEIR PRIOR SALARIES AT WESTINGHOUSE.  RESPONDENT
WOLFE, WHOSE LEAVE LASTED FOR A YEAR, RECEIVED $9,698.90, OR 90% OF HIS
PREVIOUS SALARY.  EACH RETURNED TO WESTINGHOUSE FOR THE REQUIRED PERIOD
OF TIME FOLLOWING HIS EDUCATIONAL LEAVE. 

WESTINGHOUSE, WHICH UNDER ITS OWN ACCOUNTING SYSTEM LISTED THE
AMOUNTS PAID TO THE RESPONDENTS AS "INDIRECT LABOR" EXPENSES, WITHHELD
FEDERAL INCOME TAX FROM THOSE AMOUNTS.  /9/  THE RESPONDENTS FILED
CLAIMS FOR REFUND, CONTENDING THAT THE PAYMENTS THEY HAD RECEIVED WERE
"SCHOLARSHIPS," AND HENCE WERE EXCLUDABLE FROM INCOME UNDER SEC. 117 OF
THE CODE, WHICH PROVIDES IN PERTINENT PART: 

     "(A) GENERAL RULE. 

     "IN THE CASE OF AN INDIVIDUAL, GROSS INCOME DOES NOT INCLUDE-
 

     "(1) ANY AMOUNT RECEIVED-- 

     "(A) AS A SCHOLARSHIP AT AN EDUCATIONAL INSTITUTION (AS
DEFINED IN SECTION 151 (E)(4), OR 

   "(B) AS A FELLOWSHIP GRANT . . . "  /10/ 

WHEN THOSE CLAIMS WERE REJECTED, THE RESPONDENTS INSTITUTED THIS
SUIT IN THE DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA,
AGAINST THE DISTRICT DIRECTOR OF INTERNAL REVENUE.  AFTER THE BASICALLY
UNDISPUTED EVIDENCE REGARDING THE BETTIS PROGRAM HAD BEEN PRESENTED,
THE TRIAL JUDGE INSTRUCTED THE JURY IN ACCORDANCE WITH TREAS. REG. ON
INCOME TAX (1954 CODE) SEC. 1.117-4(C), 26 CFR 1.117-4(C), WHICH
PROVIDES THAT AMOUNTS REPRESENTING "COMPENSATION FOR PAST, PRESENT, OR
FUTURE EMPLOYMENT SERVICES," AND AMOUNTS "PAID . . . TO . . . AN
INDIVIDUAL TO ENABLE HIM TO PURSUE STUDIES OR RESEARCH PRIMARILY FOR
THE BENEFIT OF THE GRANTOR," ARE NOT EXCLUDABLE AS SCHOLARSHIPS.  /11/
THE JURY FOUND THAT THE AMOUNTS RECEIVED BY THE RESPONDENTS WERE
TAXABLE INCOME.  RESPONDENTS THEN SOUGHT REVIEW IN THE COURT OF APPEALS
FOR THE THIRD CIRCUIT, AND THAT COURT REVERSED, HOLDING THAT THE
REGULATION REFERRED TO WAS INVALID, THAT THE JURY INSTRUCTIONS WERE
THEREFORE IMPROPER, AND THAT ON THE ESSENTIALLY UNDISPUTED FACTS IT WAS
CLEAR AS A MATTER OF LAW THAT THE AMOUNTS RECEIVED BY THE RESPONDENTS
WERE "SCHOLARSHIPS" EXCLUDABLE UNDER SEC. 117.  396 F.2D 258. 

THE HOLDING OF THE COURT OF APPEALS WITH RESPECT TO TREAS. RED. 
SEC.  1.117-4(C) WAS CONTRARY TO THE DECISIONS OF SEVERAL OTHER
CIRCUITS-- MOST NOTABLY, THAT OF THE FIFTH CIRCUIT IN USSERY V. UNITED
STATES, 296 F.2D 582, WHICH EXPLICITLY SUSTAINED THE REGULATION AGAINST
ATTACK AND HELD AMOUNTS RECEIVED UNDER AN ARRANGEMENT QUITE SIMILAR TO
THE BETTIS PROGRAM TO BE TAXABLE INCOME.  /12/  ACCORDINGLY, UPON THE
DISTRICT DIRECTOR'S PETITION, WE GRANTED CERTIORARI TO RESOLVE THE
CONFLICT AND TO DETERMINE THE PROPER SCOPE OF SEC. 117 AND TREAS. REG.
SEC. 1.117-4(C) WITH RESPECT TO PAYMENTS SUCH AS THOSE INVOLVED HERE. 
393 U.S. 949. 

IN HOLDING INVALID THE REGULATION THAT LIMITS THE DEFINITIONS OF
"SCHOLARSHIP" AND "FELLOWSHIP" SO AS TO EXCLUDE AMOUNTS RECEIVED AS
"COMPENSATION," THE COURT OF APPEALS EMPHASIZED THAT THE STATUTE ITSELF
EXPRESSLY ADVERTS TO CERTAIN SITUATIONS IN WHICH FUNDS RECEIVED BY
STUDENTS MAY BE THOUGHT OF AS REMUNERATION.  AFTER THE BASIC RULE
EXCLUDING SCHOLARSHIP FUNDS FROM GROSS INCOME IS SET OUT IN SEC.
117(A), FOR INSTANCE, SUBSECTION (B)(1) STIPULATES: 

     "IN THE CASE OF AN INDIVIDUAL WHO IS A CANDIDATE FOR A DEGREE

AT AN EDUCATIONAL INSTITUTION . . . , SUBSECTION (A) SHALL NOT

  APPLY TO THAT PORTION OF ANY AMOUNT RECEIVED WHICH REPRESENTS

  PAYMENT FOR TEACHING, RESEARCH, OR OTHER SERVICES IN THE NATURE

  OF PART-TIME EMPLOYMENT REQUIRED AS A CONDITION TO RECEIVING THE

  SCHOLARSHIP OR THE FELLOWSHIP GRANT."  /13/

IN ADDITION, SUBSECTION (B)(2) LIMITS THE EXCLUSION FROM INCOME WITH
REGARD TO NONDEGREE CANDIDATES IN TWO RESPECTS:  FIRST, THE GRANTOR
MUST BE A GOVERNMENTAL AGENCY, AN INTERNATIONAL ORGANIZATION, OR AN
ORGANIZATION EXEMPT FROM TAX UNDER SECS. 501(A), (C)(3) OF THE CODE;
AND SECOND, THE MAXIMUM EXCLUSION FROM INCOME AVAILABLE TO A NONDEGREE
CANDIDATE IS $300 PER MONTH FOR NOT MORE THAN 36 MONTHS.  SINCE THESE
EXCEPTIONS ARE EXPRESSLY SET OUT IN THE STATUTE, THE COURT OF APPEALS,
RELYING ON THE CANON OF CONSTRUCTION THAT EXPRESSIO UNIUS EST EXCLUSIO
ALTERIUS, CONCLUDED THAT NO ADDITIONAL RESTRICTIONS MAY BE PUT ON THE
BASIC EXCLUSION FROM INCOME GRANTED BY SUBSECTION (A)-- A CONCLUSION
FORCEFULLY PRESSED UPON US BY THE RESPONDENTS. 

CONGRESS' EXPRESS REFERENCE TO THE LIMITATIONS JUST REFERRED TO
CONCEDEDLY LENDS SOME SUPPORT TO THE RESPONDENTS' POSITION.  THE
DIFFICULTY WITH THAT POSITION, HOWEVER, LIES IN ITS IMPLICIT ASSUMPTION
THAT THOSE LIMITATIONS ARE LIMITATIONS ON AN EXCLUSION OF ALL FUNDS
RECEIVED BY STUDENTS TO SUPPORT THEM DURING THE COURSE OF THEIR
EDUCATION.  SECTION 117 PROVIDES, HOWEVER, ONLY THAT AMOUNTS RECEIVED
AS "SCHOLARSHIPS" OR "FELLOWSHIPS" SHALL BE EXCLUDABLE.  AND CONGRESS
NEVER DEFINED WHAT IT MEANT BY THE QUOTED TERMS.  AS THE TAX COURT HAS
OBSERVED: 

"(A) PROPER READING OF THE STATUTE REQUIRES THAT BEFORE THE
EXCLUSION COMES INTO PLAY THERE MUST BE A DETERMINATION THAT THE
PAYMENT SOUGHT TO BE EXCLUDED HAS THE NORMAL CHARACTERISTICS ASSOCIATED
WITH THE TERM 'SCHOLARSHIP.'"  REESE V. COMMISSIONER, 45 T.C. 407, 413,
AFF'D, 373 F.2D 742.  THE REGULATION HERE IN QUESTION REPRESENTS AN
EFFORT BY THE COMMISSIONER TO SUPPLY THE DEFINITIONS THAT CONGRESS
OMITTED.  /14/  AND IT IS FUNDAMENTAL, OF COURSE, THAT AS
"CONTEMPORANEOUS CONSTRUCTIONS BY THOSE CHARGED WITH ADMINISTRATION OF"
THE CODE, THE REGULATIONS "MUST BE SUSTAINED UNLESS UNREASONABLE AND
PLAINLY INCONSISTENT WITH THE REVENUE STATUTES," AND "SHOULD NOT BE
OVERRULED EXCEPT FOR WEIGHTY REASONS."  COMMISSIONER V. SOUTH TEXAS
LUMBER CO., 333 U.S. 496, 501.  IN THIS RESPECT OUR STATEMENT LAST TERM
IN UNITED STATES V. CORRELL, 389 U.S. 299, BEARS EMPHASIS: 

"(WE DO NOT SIT AS A COMMITTEE OF REVISION TO PERFECT THE
ADMINISTRATION OF THE TAX LAWS.  CONGRESS HAS DELEGATED TO THE
COMMISSIONER, NOT TO THE COURTS, THE TASK OF PRESCRIBING 'ALL NEEDFUL
RULES AND REGULATIONS FOR THE ENFORCEMENT' OF THE INTERNAL REVENUE
CODE.  26 U.S.C. 7805(A).  IN THIS AREA OF LIMITLESS FACTUAL
VARIATIONS, 'IT IS THE PROVINCE OF CONGRESS AND THE COMMISSIONER, NOT
THE COURTS, TO MAKE THE APPROPRIATE ADJUSTMENTS.'"  ID., AT 306-307. 
HERE, THE DEFINITIONS SUPPLIED BY THE REGULATION CLEARLY ARE PRIMA
FACIE PROPER, COMPORTING AS THEY DO WITH THE ORDINARY UNDERSTANDING OF
"SCHOLARSHIPS" AND "FELLOWSHIPS" AS RELATIVELY DISINTERESTED, "NO
STRINGS" EDUCATIONAL GRANTS, WITH NO REQUIREMENT OF ANY SUBSTANTIAL
QUID PRO QUO FROM THE RECIPIENTS. 

THE IMPLICATION OF THE RESPONDENTS' EXPRESSIO UNIUS REASONING IS
THAT ANY AMOUNT PAID FOR THE PURPOSE OF SUPPORTING ONE PURSUING A
PROGRAM OF STUDY OR SCHOLARLY RESEARCH SHOULD BE EXCLUDABLE FROM GROSS
INCOME AS A "SCHOLARSHIP" SO LONG AS IT DOES NOT FALL WITHIN THE
SPECIFIC LIMITATIONS OF SEC. 117(B).  PAY RECEIVED BY A $30,000 PER
YEAR ENGINEER OR EXECUTIVE ON A LEAVE OF ABSENCE WOULD, ACCORDING TO
THAT REASONING, BE EXCLUDABLE AS LONG AS THE LEAVE WAS GRANTED SO THAT
THE INDIVIDUAL COULD PERFORM WORK REQUIRED FOR A DOCTORAL DEGREE.  THIS
RESULT PRESUMABLY WOULD NOT BE ALTERED BY THE FACT THAT THE EMPLOYEE
MIGHT BE PERFORMING, IN SATISFACTION OF HIS DEGREE REQUIREMENTS,
PRECISELY THE SAME WORK WHICH HE WAS DOING FOR HIS EMPLOYER PRIOR TO
HIS LEAVE AND WHICH HE WOULD BE DOING AFTER HIS RETURN TO "EMPLOYMENT"-
OR BY THE FACT THAT THE FRUITS OF THAT WORK WERE MADE DIRECTLY
AVAILABLE TO AND EXPLOITED BY THE EMPLOYER.  SUCH A RESULT WOULD BE
ANOMALOUS INDEED, ESPECIALLY IN VIEW OF THE FACT THAT UNDER SEC. 117
THE COMPARATIVELY MODEST SUMS RECEIVED BY PART-TIME REACHING ASSISTANTS
ARE CLEARLY SUBJECT TO TAXATION.  /15/  PARTICULARLY IN LIGHT OF THE
PRINCIPLE THAT EXEMPTIONS FROM TAXATION ARE TO BE CONSTRUED NARROWLY,
/16/  WE DECLINE TO ASSUME THAT CONGRESS INTENDED TO SANCTION-- INDEED,
AS THE RESPONDENTS WOULD HAVE IT, TO COMPEL-- SUCH AN INEQUITABLE
SITUATIONS.  /17/ 

THE LEGISLATIVE HISTORY UNDERLYING SEC. 117 IS, AS THE COURT OF
APPEALS RECOGNIZED, "FAR FROM CLEAR."  /18/  WE DO NOT BELIEVE,
HOWEVER, THAT IT PRECLUDES, AS "PLAINLY INCONSISTENT" WITH THE STATUTE,
A DEFINITION OF "SCHOLARSHIP" THAT EXCLUDES FROM THE REACH OF THAT TERM
AMOUNTS RECEIVED AS COMPENSATION FOR SERVICES PERFORMED.  THE 1939
INTERNAL REVENUE CODE, LIKE PREDECESSOR CODES, CONTAINED NO SPECIFIC
PROVISION DEALING WITH SCHOLARSHIP GRANTS.  WHETHER SUCH GRANTS WERE
INCLUDABLE IN GROSS INCOME DEPENDED SIMPLY UPON WHETHER THEY FELL
WITHIN THE BROAD PROVISION EXCLUDING FROM INCOME AMOUNTS RECEIVED AS
"GIFTS."  /19/  THUS CASE-BY-CASE DETERMINATIONS REGARDING GRANTORS'
MOTIVES WERE NECESSARY.  THE CASES DECIDED UNDER THIS APPROACH PRIOR TO
1954 GENERALLY INVOLVED TWO TYPES OF FINANCIAL ASSISTANCE:  GRANTS TO
RESEARCH OR TEACHING ASSISTANTS-- GRADUATE STUDENTS WHO PERFORM
RESEARCH OR TEACHING SERVICES IN RETURN FOR THEIR STIPENDS-- AND
FOUNDATION GRANTS TO POST-DOCTORAL RESEARCHERS.  IN CASES DECIDED
SHORTLY BEFORE THE 1954 CODE WAS ENACTED, THE TAX COURT, RELYING ON THE
"GIFT" APPROACH TO SCHOLARSHIPS AND FELLOWSHIPS, HELD THAT AMOUNTS
RECEIVED BY A RESEARCH ASSISTANT WERE TAXABLE INCOME, /20/  BUT REACHED
DIVERGENT RESULTS IN SITUATIONS INVOLVING GRANTS TO POST-DOCTORAL
RESEARCHERS.  /21/ 

IN ENACTING SEC. 117 OF THE 1954 CODE, CONGRESS INDICATED THAT IT
WISHED TO ELIMINATE THE NECESSITY FOR RELIANCE ON "CASE-BY-CASE"
DETERMINATIONS WITH RESPECT TO WHETHER "SCHOLARSHIPS" AND "FELLOWSHIPS"
WERE EXCLUDABLE AS "GIFTS."  UPON THIS PREMISE THE RESPONDENTS HINGE
THEIR ARGUMENT THAT CONGRESS LAID DOWN A STANDARD UNDER WHICH ALL CASE
BY-CASE DETERMINATIONS-- SUCH AS THOSE THAT MAY BE MADE UNDER TREAS.
REG. SEC. 1.117-4(C)-- ARE UNNECESSARY AND IMPROPER.  WE HAVE ALREADY
INDICATED, HOWEVER, OUR RELUCTANCE TO BELIEVE THAT SEC. 117 WAS
DESIGNED TO EXCLUDE FROM TAXATION ALL AMOUNTS, NO MATTER HOW LARGE OR
FROM WHAT SOURCE, THAT ARE GIVEN FOR THE SUPPORT OF ONE WHO HAPPENS TO
BE A STUDENT.  THE SOUNDER INFERENCE IS THAT CONGRESS WAS MERELY
"RECOGNIZING) THAT SCHOLARSHIPS AND FELLOWSHIPS ARE SUFFICIENTLY UNIQUE
. . . TO MERIT (TAX) TREATMENT SEPARATE FROM THAT ACCORDED GIFTS,"
/22/ AND ATTEMPTING TO PROVIDE THAT GRANTS FALLING WITHIN THOSE
CATEGORIES SHOULD BE TREATED CONSISTENTLY-- AS IN SOME INSTANCES, UNDER
THE GENERIC PROVISIONS OF THE 1939 CODE, THEY ARGUABLY HAD NOT BEEN. 
DELINEATION OF THE PRECISE CONTOURS OF THOSE CATEGORIES WAS LEFT TO THE
COMMISSIONER.     FURTHERMORE, A CONGRESSIONAL INTENTION THAT NOT ALL
GRANTS RECEIVED BY STUDENTS WERE NECESSARILY TO BE "SCHOLARSHIPS" MAY
REASONABLY BE INFERRED FROM THE LEGISLATIVE HISTORY.  IN EXPLAINING THE
BASIS FOR ITS VERSION OF SEC. 117 (B)(2), /23/  THE HOUSE WAYS AND
MEANS COMMITTEE STATED THAT ITS PURPOSE WAS TO "TAX THOSE GRANTS WHICH
ARE IN EFFECT MERELY PAYMENTS OF A SALARY DURING A PERIOD WHILE THE
RECIPIENT IS ON LEAVE FROM HIS REGULAR JOB."  /24/  THIS COMMENT
RELATED, IT IS TRUE, TO A SPECIFIC EXCEPTION TO THE EXCLUSION FROM
INCOME SET OUT IN SUBSECTION (A).  BUT, IN VIEW OF THE FACT THAT THE
STATUTE LEFT OPEN THE DEFINITIONS OF "SCHOLARSHIP" AND "FELLOWSHIP," IT
IS NOT UNREASONABLE TO CONCLUDE THAT IN ADDING SUBSECTION (B) TO THE
STATUTE CONGRESS WAS MERELY DEALING EXPLICITLY WITH THOSE PROBLEMS THAT
HAD COME EXPLICITLY TO ITS ATTENTION-- VIZ., THOSE INVOLVING RESEARCH
AND TEACHING ASSISTANTSHIPS AND POST-DOCTORAL RESEARCH GRANTS-- WITHOUT
INTENDING TO FORBID APPLICATION TO SIMILAR SITUATIONS OF THE GENERAL
PRINCIPLE UNDERLYING ITS TREATMENT OF THOSE PROBLEMS.  ONE MAY
JUSTIFIABLY SUPPOSE THAT THE CONGRESS THAT TAXED FUNDS RECEIVED BY
"PART-TIME" TEACHING ASSISTANTS, PRESUMABLY ON THE GROUND THAT THE
AMOUNTS RECEIVED BY SUCH PERSONS REALLY REPRESENTED COMPENSATION FOR
SERVICES PERFORMED, /25/  WOULD ALSO DEEM PROPER A DEFINITION OF
"SCHOLARSHIP" UNDER WHICH COMPARABLE SORTS OF COMPENSATION-- WHICH
OFTEN, AS IN THE PRESENT CASE, ARE SIGNIFICANTLY GREATER IN AMOUNT--
ARE LIKEWISE TAXABLE.  /26/  IN PROVIDING SUCH A DEFINITION, THE
COMMISSIONER HAS PERMISSIBLY IMPLEMENTED AN UNDERLYING CONGRESSIONAL
CONCERN.  /27/  WE CANNOT SAY THAT THE PROVISION OF TREAS. REG. SEC.
1.117-4(C) THAT TAXES AMOUNTS RECEIVED AS "COMPENSATION" IS
"UNREASONABLE OR PLAINLY INCONSISTENT WITH THE . . . STATUTE)."  /28/ 

UNDER THAT PROVISION, AS SET OUT IN THE TRIAL COURT'S INSTRUCTIONS,
/29/  THE JURY HERE PROPERLY FOUND THAT THE AMOUNTS RECEIVED BY THE
RESPONDENTS WERE TAXABLE "COMPENSATION" RATHER THAN EXCLUDABLE
"SCHOLARSHIPS."  /30/  THE EMPLOYER-EMPLOYEE RELATIONSHIP INVOLVED IS
IMMEDIATELY SUGGESTIVE, OF COURSE, AS IS THE CLOSE RELATION BETWEEN THE
RESPONDENTS' PRIOR SALARIES AND THE AMOUNT OF THEIR "STIPENDS."  IN
ADDITION, EMPLOYEE BENEFITS WERE CONTINUED.  TOPICS WERE REQUIRED TO
RELATE AT LEAST GENERALLY TO THE WORK OF THE BETTIS LABORATORY. 
PERIODIC WORK REPORTS WERE TO BE SUBMITTED.  AND, MOST IMPORTANTLY,
WESTINGHOUSE UNQUESTIONABLY EXTRACTED A QUID PRO QUO.  THE RESPONDENTS
NOT ONLY WERE REQUIRED TO HOLD POSITIONS WITH WESTINGHOUSE THROUGHOUT
THE "WORK-STUDY" PHASE OF THE PROGRAM, BUT ALSO WERE OBLIGATED TO
RETURN TO WESTINGHOUSE'S EMPLOY FOR A SUBSTANTIAL PERIOD OF TIME AFTER
COMPLETION OF THEIR LEAVE.  /31/  THE THRUST OF THE PROVISION DEALING
WITH COMPENSATION IS THAT BARGAINED-FOR PAYMENTS, GIVEN ONLY AS A "QUO"
IN RETURN FOR THE QUID OF SERVICES RENDERED-- WHETHER PAST, PRESENT,
OR FUTURE-- SHOULD NOT BE EXCLUDABLE FROM INCOME AS "SCHOLARSHIP"
FUNDS.  /32/  THAT PROVISION CLEARLY COVERS THIS CASE. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND
THAT OF THE DISTRICT COURT REINSTATED. 

              IT IS SO ORDERED. 

/1/  WE REFER ONLY TO RESPONDENTS RICHARD E. JOHNSON, RICHARD A.
WOLFE, AND MARTIN L. POMERANTZ; THEIR WIVES ARE PARTIES TO THIS ACTION
SOLELY BECAUSE JOINT TAX RETURNS WERE FILED FOR THE YEARS IN QUESTION. 

/2/  FORMERLY CARNEGIE INSTITUTE OF TECHNOLOGY. 

/3/  A MAXIMUM OF 156 HOURS OF RELEASE TIME PER YEAR IS ALLOWED. 

/4/  THE FELLOWSHIP PROGRAM IS FUNDED JOINTLY BY WESTINGHOUSE AND
THE AEC, BUT THE AMOUNTS PAID TO PARTICIPATING EMPLOYEES ARE CHANNELED
THROUGH THE COMPANY'S PAYROLL OFFICE. 

/5/  THE ORDINARY LEAVE PERIOD IS NINE MONTHS. 

/6/  MAXIMUM MONTHLY LIMITS ARE PLACED ON THE AMOUNTS PAID. 

/7/  RESPONDENT WOLFE BEGAN HIS LEAVE AT A TIME WHEN WESTINGHOUSE
DID NOT REQUIRE AGREEMENT IN WRITING TO THE TWO-YEAR "RETURN"
COMMITMENT.  HE WAS FORMALLY ADVISED BEFORE HE WENT ON LEAVE, HOWEVER,
THAT HE WAS "EXPECTED" TO RETURN TO WESTINGHOUSE FOR A PERIOD OF TIME
EQUAL TO THE DURATION OF HIS LEAVE, AND HE IN FACT HONORED THAT
OBLIGATION. 

/8/  RESPONDENT WOLFE WAS ON LEAVE FROM MARCH 1, 1960, TO FEBRUARY
28, 1961; RESPONDENT JOHNSON FROM OCTOBER 1, 1960, TO JUNE 30, 1961;
AND RESPONDENT POMERANTZ FROM NOVEMBER 1, 1961, TO JULY 31, 1962. 

/9/  TUITION AND INCIDENTAL FEES WERE ALSO PAID BY WESTINGHOUSE, BUT
NO WITHHOLDING WAS MADE FROM THOSE PAYMENTS, AND THEIR TAX STATUS IS
NOT AT ISSUE IN THIS CASE.  ALTHOUGH CONCEPTUALLY INCLUDABLE IN INCOME,
SUCH SUMS PRESUMABLY WOULD BE OFFSET BY EDUCATIONAL EXPENSE
DEDUCTIONS.  SEE TREAS. REG. ON INCOME TAX (1954 CODE) SEC. 1.162-5, 26
CFR 1.162-5. 

/10/  THE ENTIRE SECTION READS AS FOLLOWS: 

"SEC. 117.  SCHOLARSHIPS AND FELLOWSHIP GRANTS. 

"(A) GENERAL RULE. 

"IN THE CASE OF AN INDIVIDUAL, GROSS INCOME DOES NOT INCLUDE-- 

"(1) ANY AMOUNT RECEIVED-- 

"(A) AS A SCHOLARSHIP AT AN EDUCATIONAL INSTITUTION (AS DEFINED IN

"(B) AS A FELLOWSHIP GRANT, INCLUDING THE VALUE OF CONTRIBUTED
SERVICES AND ACCOMMODATIONS; AND 

"(2) ANY AMOUNT RECEIVED TO COVER EXPENSES FOR-- 

"(A) TRAVEL, 

"(B) RESEARCH, 

"(C) CLERICAL HELP, OR 

"(D) EQUIPMENT, "WHICH ARE INCIDENT TO SUCH A SCHOLARSHIP OR TO A
FELLOWSHIP GRANT, BUT ONLY TO THE EXTENT THAT THE AMOUNT IS SO EXPENDED
BY THE RECIPIENT. 

"(B) LIMITATIONS. 

"(1) INDIVIDUALS WHO ARE CANDIDATES FOR DEGREES. 

"IN THE CASE OF AN INDIVIDUAL WHO IS A CANDIDATE FOR A DEGREE AT AN
EDUCATIONAL INSTITUTION (AS DEFINED IN SECTION 151 (E)(4), SUBSECTION
(A) SHALL NOT APPLY TO THAT PORTION OF ANY AMOUNT RECEIVED WHICH
REPRESENTS PAYMENT FOR TEACHING, RESEARCH, OR OTHER SERVICES IN THE
NATURE OF PART-TIME EMPLOYMENT REQUIRED AS A CONDITION TO RECEIVING THE
SCHOLARSHIP OR THE FELLOWSHIP GRANT.  IF TEACHING, RESEARCH, OR OTHER
SERVICES ARE REQUIRED OF ALL CANDIDATES (WHETHER OR NOT RECIPIENTS OF
SCHOLARSHIPS OR FELLOWSHIP GRANTS) FOR A PARTICULAR DEGREE AS A
CONDITION TO RECEIVING SUCH DEGREE, SUCH TEACHING, RESEARCH, OR OTHER
SERVICES SHALL NOT BE REGARDED AS PART-TIME EMPLOYMENT WITHIN THE
MEANING OF THIS PARAGRAPH. 

"(2) INDIVIDUALS WHO ARE NOT CANDIDATES FOR DEGREES. 

"IN THE CASE OF AN INDIVIDUAL WHO IS NOT A CANDIDATE FOR A DEGREE AT
AN EDUCATIONAL INSTITUTION (AS DEFINED IN SECTION 151(E)(4), SUBSECTION
(A) SHALL APPLY ONLY IF THE CONDITION IS SUBPARAGRAPH (A) IS SATISFIED
AND THEN ONLY WITHIN THE LIMITATIONS PROVIDED IN SUBPARAGRAPH (B). 

"(A) CONDITIONS FOR EXCLUSION. 

"THE GRANTOR OF THE SCHOLARSHIP OR FELLOWSHIP GRANT IS-- 

"(I) AN ORGANIZATION DESCRIBED IN SECTION 501(C)(3) WHICH IS EXEMPT
FROM TAX UNDER SECTION 501(A), 

"(II) A FOREIGN GOVERNMENT, 

"(III) AN INTERNATIONAL ORGANIZATION, OR A BINATIONAL OR
MULTINATIONAL EDUCATION AND CULTURAL FOUNDATION OR COMMISSION CREATED
OR CONTINUED PURSUANT TO THE MUTUAL EDUCATIONAL AND CULTURAL EXCHANGE
ACT OF 1961, OR 

"(IV) THE UNITED STATES, OR AN INSTRUMENTALITY OR AGENCY THEREOF, OR
A STATE, A TERRITORY, OR A POSSESSION OF THE UNITED STATES, OR ANY
POLITICAL SUBDIVISION THEREOF, OR THE DISTRICT OF COLUMBIA. 

"(B) EXTENT OF EXCLUSION. 

"THE AMOUNT OF THE SCHOLARSHIP OR FELLOWSHIP GRANT EXCLUDED UNDER
SUBSECTION (A)(1) IN ANY TAXABLE YEAR SHALL BE LIMITED TO AN AMOUNT
EQUAL TO $300 TIMES THE NUMBER OF MONTHS FOR WHICH THE RECIPIENT
RECEIVED AMOUNTS UNDER THE SCHOLARSHIP OR FELLOWSHIP GRANT DURING SUCH
TAXABLE YEAR, EXCEPT THAT NO EXCLUSION SHALL BE ALLOWED UNDER
SUBSECTION (A) AFTER THE RECIPIENT HAS BEEN ENTITLED TO EXCLUDE UNDER
THIS SECTION FOR A PERIOD OF 36 MONTHS (WHETHER OR NOT CONSECUTIVE)
AMOUNTS RECEIVED AS A SCHOLARSHIP OR FELLOWSHIP GRANT WHILE NOT A
CANDIDATE FOR A DEGREE AT AN EDUCATIONAL INSTITUTION (AS DEFINED IN

/11/  "SEC.  1.117-4.  ITEMS NOT CONSIDERED AS SCHOLARSHIPS OR
FELLOWSHIP GRANTS. 

"THE FOLLOWING PAYMENTS OR ALLOWANCES SHALL NOT BE CONSIDERED TO BE
AMOUNTS RECEIVED AS A SCHOLARSHIP OR A FELLOWSHIP GRANT FOR THE PURPOSE
OF SECTION 117: 

"(C) AMOUNTS PAID AS COMPENSATION FOR SERVICES OR PRIMARILY FOR THE
BENEFIT OF THE GRANTOR.  (1) EXCEPT AS PROVIDED IN PARAGRAPH (A) OF
SEC. 1.117-2, ANY AMOUNT PAID OR ALLOWED TO, OR ON BEHALF OF, AN
INDIVIDUAL TO ENABLE HIM TO PURSUE STUDIES OR RESEARCH, IF SUCH AMOUNT
REPRESENTS EITHER COMPENSATION FOR PAST, PRESENT, OR FUTURE EMPLOYMENT
SERVICES OR REPRESENTS PAYMENT FOR SERVICES WHICH ARE SUBJECT TO THE
DIRECTION OR SUPERVISION OF THE GRANTOR. 

"(2) ANY AMOUNT PAID OR ALLOWED TO, OR ON BEHALF OF, AN INDIVIDUAL
TO ENABLE HIM TO PURSUE STUDIES OR RESEARCH PRIMARILY FOR THE BENEFIT
OF THE GRANTOR.  "HOWEVER, AMOUNTS PAID OR ALLOWED TO, OR ON BEHALF OF,
AN INDIVIDUAL TO ENABLE HIM TO PURSUE STUDIES OR RESEARCH ARE
CONSIDERED TO BE AMOUNTS RECEIVED AS A SCHOLARSHIP OR FELLOWSHIP GRANT
FOR THE PURPOSE OF SECTION 117 IF THE PRIMARY PURPOSE OF THE STUDIES OR
RESEARCH IS TO FURTHER THE EDUCATION AND TRAINING OF THE RECIPIENT IN
HIS INDIVIDUAL CAPACITY AND THE AMOUNT PROVIDED BY THE GRANTOR FOR SUCH
PURPOSE DOES NOT REPRESENT COMPENSATION OR PAYMENT FOR THE SERVICES
DESCRIBED IN SUBPARAGRAPH (1) OF THIS PARAGRAPH.  NEITHER THE FACT THAT
THE RECIPIENT IS REQUIRED TO FURNISH REPORTS OF HIS PROGRESS TO THE
GRANTOR, NOR THE FACT THAT THE RESULTS OF HIS STUDIES OR RESEARCH MAY
BE OF SOME INCIDENTAL BENEFIT TO THE GRANTOR SHALL, OF ITSELF, BE
CONSIDERED TO DESTROY THE ESSENTIAL CHARACTER OF SUCH AMOUNT AS A
SCHOLARSHIP OR FELLOWSHIP GRANT." 

/12/  GENERALLY IN ACCORD WITH USSERY ARE REESE V. COMMISSIONER, 373
F.2D 742 (C.A. 4TH CIR.); AND STEWARD V. UNITED STATES, 363 F.2D 355
(C.A. 6TH CIR.); AND WODDAIL V. COMMISSIONER, 321 F.2D 721 (C.A. 10TH
CIR.).  SEE ALSO REIFFEN V. UNITED STATES, 180 CT.CL. 296, 376 F.2D
883. 

/13/  SUBSECTION (B) GOES ON TO EXCEPT FROM THAT LIMITATION
SITUATIONS IN WHICH "TEACHING, RESEARCH, OR OTHER SERVICES ARE REQUIRED
OF ALL CANDIDATES (WHETHER OR NOT RECIPIENTS OF SCHOLARSHIPS OR
FELLOWSHIP GRANTS) FOR A PARTICULAR DEGREE AS A CONDITION TO RECEIVING
SUCH DEGREE . . . " IN THOSE SITUATIONS, SCHOLARSHIP OR FELLOWSHIP
FUNDS RECEIVED FOR SUCH SERVICES ARE NONTAXABLE.  SEE N. 10, SUPRA. 

/14/  SEE ALSO TREAS. REG. ON INCOME TAX (1954 CODE) SECS. 1.117
3(A), (C), 26 CFR SECS. 1.117-3(A), (C), WHICH SET OUT THE "NORMAL
CHARACTERISTICS" ASSOCIATED WITH SCHOLARSHIPS AND FELLOWSHIPS: 

"SEC. 1.117-DEFINITIONS. 

"(A) SCHOLARSHIP.  A SCHOLARSHIP GENERALLY MEANS AN AMOUNT PAID OR
ALLOWED TO, OR FOR THE BENEFIT OF, A STUDENT, WHETHER AN UNDERGRADUATE
OR A GRADUATE, TO AID SUCH INDIVIDUAL IN PURSUING HIS STUDIES.  THE
TERM INCLUDES THE VALUE OF CONTRIBUTED SERVICES AND ACCOMODATIONS (SEE
PARAGRAPH (D) OF THIS SECTION) AND THE AMOUNT OF TUITION,
MATRICULATION, AND OTHER FEES WHICH ARE FURNISHED OR REMITTED TO A
STUDENT TO AID HIM IN PURSUING HIS STUDIES.  THE TERM ALSO INCLUDES ANY
AMOUNT RECEIVED IN THE NATURE OF A FAMILY ALLOWANCE AS A PART OF A
SCHOLARSHIP.  HOWEVER, THE TERM DOES NOT INCLUDE ANY AMOUNT PROVIDED BY
AN INDIVIDUAL TO AID A RELATIVE, FRIEND, OR OTHER INDIVIDUAL IN
PURSUING HIS STUDIES WHERE THE GRANTOR IS MOTIVATED BY FAMILY OR
PHILANTHROPIC CONSIDERATIONS.  IF AN EDUCATIONAL INSTITUTION MAINTAINS
OR PARTICIPATES IN A PLAN WHEREBY THE TUITION OF A CHILD OF A FACULTY
MEMBER OF SUCH INSTITUTION IS REMITTED BY ANY OTHER PARTICIPATING
EDUCATIONAL INSTITUTION ATTENDED BY SUCH CHILD, THE AMOUNT OF THE
TUITION SO REMITTED SHALL BE CONSIDERED TO BE AN AMOUNT RECEIVED AS A
SCHOLARSHIP. 

.           .           .           . 

"(C) FELLOWSHIP GRANT.  A FELLOWSHIP GRANT GENERALLY MEANS AN AMOUNT
PAID OR ALLOWED TO, OR FOR THE BENEFIT OF, AN INDIVIDUAL TO AID HIM IN
THE PURSUIT OF STUDY OR RESEARCH.  THE TERM INCLUDES THE VALUE OF
CONTRIBUTED SERVICES AND ACCOMODATIONS (SEE PARAGRAPH (D) OF THIS
ARE FURNISHED OR REMITTED TO AN INDIVIDUAL TO AID HIM IN THE PURSUIT OF
STUDY OR RESEARCH.  THE TERM ALSO INCLUDES ANY AMOUNT RECEIVED IN THE
NATURE OF A FAMILY ALLOWANCE AS A PART OF A FELLOWSHIP GRANT.  HOWEVER,
THE TERM DOES NOT INCLUDE ANY AMOUNT PROVIDED BY AN INDIVIDUAL TO AID A
RELATIVE, FRIEND, OR OTHER INDIVIDUAL IN THE PURSUIT OF STUDY OR
RESEARCH WHERE THE GRANTOR IS MOTIVATED BY FAMILY OR PHILANTHROPIC
CONSIDERATIONS." 

WE ARE NOT CONCERNED IN THIS CASE WITH DISTINCTIONS BETWEEN THE
TERMS "SCHOLARSHIP" AND "FELLOWSHIP." 

/15/  CF. 1 J. MERTENS, LAW OF FEDERAL INCOME TAXATION SEC. 7.42, P.
110 (P. ZIMET & W. OLIVER REV. ED. 1962). 

/16/  SEE COMMISSIONER V. JACOBSON, 336 U.S. 28, 48-49; HELVERING V.
NORTHWEST STEEL ROLLING MILLS, INC., 311 U.S. 46, 49. 

/17/  THE OPINION OF THE COURT OF APPEALS REITERATES THAT THE
STIPENDS RECEIVED BY THE RESPONDENTS WERE "REASONABLE."  THOSE PAYMENTS
APPROXIMATED, OF COURSE, THE RESPONDENTS' PREVIOUS ENGINEERING
SALARIES.  IN ANY EVENT, GIVEN THE COURT'S EXPRESSIO UNIUS REASONING,
THE SOURCE OF A LIMITATION BASED ON THE "REASONABLENESS" OF AMOUNTS
GRANTED TO BONA FIDE STUDENTS IS DIFFICULT TO IDENTIFY.     /18/  396
F.2D, AT 263. 

/19/  INT. REV. CODE OF 1939, C. 1, SEC. 22(B)(3), 53 STAT. 10; SEE
INT. REV. CODE OF 1954, SEC. 102. 

/20/  SEE, E.H., BANKS V. COMMISSIONER, 17 T.C. 1386. 

/21 COMPARE TI LI LOO V. COMMISSIONER, 22 T.C. 220 (UNIVERSITY GRANT
FOR NATIONAL HEALTH SERVICE RESEARCH HELD TAXABLE), WITH STONE V.
COMMISSIONER, 23 T.C. 254 (FOUNDATION GRANT HELD NONTAXABLE). 

/22/  GORDON, SCHOLARSHIP AND FELLOWSHIP GRANTS AS INCOME:  A SEARCH
FOR TREASURY POLICY, 1960 WASH.U.L.Q. 144, 151.     /23/  THAT VERSION
PROVIDED FOR THE EXCLUSION ONLY OF GRANTS THAT, TOGETHER WITH
COMPENSATION RECEIVED FROM THE RECIPIENT'S FORMER EMPLOYER, WERE LESS
THAN 75% OF HIS SALARY FOR THE PRECEDING YEAR.  NOTING THAT THE HOUSE
BILL WOULD HAVE TAXED MANY MODEST GRANTS SIMPLY BECAUSE THE RECIPIENT
HAD NO SUBSTANTIAL EARNED INCOME IN THE PREVIOUS YEAR, THE SENATE
REJECTED THAT FORMULATION AND SUBSTITUTED THE PRESENT $300 PER MONTH,
36-MONTH PROVISION OF SEC. 117(B)(2).  SEE H. R. REP. NO. 1337, 83D
CONG., 2D SESS., 17; S. REP. NO. 1622, 83D CONG., 2D SESS., 18. 

/24/  H. R. REP. NO. 1337, SUPRA, N. 23, AT 17. 

/25/  THE HOUSE VERSION OF SEC. 117(B)(1) TAXED ONLY AMOUNTS
RECEIVED AS PAYMENT FOR TEACHING AND RESEARCH SERVICES.  THE SENATE
AMENDED THE PROVISION, HOWEVER, TO INCLUDE PAYMENTS FOR "OTHER
SERVICES" AS WELL.  SEE S. REP. NO. 1622, SUPRA, N. 23, AT 18. 

/26/  IN CONNECTION WITH THE QUESTION OF WHAT CONGRESS MAY HAVE
INTENDED TO DENOTE BY THE TERMS "SCHOLARSHIP" AND "FELLOWSHIP," IT IS
NOTEWORTHY THAT THE HOUSE REPORT STATED, "SUCH GRANTS GENERALLY ARE OF
SMALL AMOUNT AND ARE USUALLY RECEIVED BY INDIVIDUALS WHO WOULD HAVE
LITTLE OR NO TAX LIABILITY IN ANY CASE."  H. R. REP. NO. 1337, SUPRA,
N. 23, AT 17. 

/27/  THE COURT OF APPEALS VIEWED THE "PRIMARY PURPOSE" OF SEC. 117
AS THE "ENCOURAGEMENT OF) FINANCIAL AID TO EDUCATION THROUGH TAX
RELIEF."  396 F.2D, AT 262.  BUT WHILE SOME DESIRE TO AID SCHOLARSHIP
STUDENTS NO DOUBT UNDERLAY ENACTMENT OFTHE STATUTE, THAT DESIRE MUST BE
RECONCILED WITH AN APPARENT CONGRESSIONAL INTENT-- MANIFESTED IN THE
LIMITATIONS SET OUT IN SUBSECTION (B)-- TO TAX AMOUNTS THAT REPRESENT
COMPENSATION FOR SERVICES PERFORMED.  AS THE TEXT MAKES CLEAR, WE
CANNOT VIEW THE COMMISSIONER'S ATTEMPT TO ACHIEVE THAT RECONCILIATION
AS IMPROPER. 

/28/  THE COURT OF APPEALS SEEMS TO HAVE RECOGNIZED THAT IN SOME
CIRCUMSTANCES THE COMMISSIONER'S APPROACH IS JUSTIFIED.  ITS OPINION
STATED: 

"A SIGNIFICANT COMMITMENT BY THE STUDENT IN RETURN FOR A GRANT
WOULD, OF COURSE, PLACE THAT GRANT OUTSIDE THE CATEGORY 'SCHOLARSHIP,'
AT LEAST TO THE EXTENT OF THE VALUE OF THAT COMMITMENT.  FOR IF THE
GRANTEE HAD TO BARTER FOR HIS STIPEND, GIVING FULL VALUE FOR IT, THIS
ARRANGEMENT WOULD HARDLY SERVE THE PRIMARY PURPOSE OF THE SEC. 117
EXCLUSION:  TO ENCOURAGE FINANCIAL AID TO EDUCATION THROUGH TAX
RELIEF."  396 F.2D, AT 262. 

IT IS NOT CLEAR HOW THIS POSITION CAN BE SQUARED WITH THE COURT OF
APPEALS' HOLDING THAT TREAS. REG. SEC. 1.117-4(C) IS INVALID.  IN ANY
EVENT, AS WE SUGGEST INFRA, WE CANNOT AGREE WITH THE CONCLUSION OF THE
COURT OF APPEALS THAT THE GRANTS RECEIVED BY THE RESPONDENTS WERE NOT
"BARTERED FOR." 

/29/  THE INSTRUCTIONS INCLUDED, INTER ALIA, THE FOLLOWING PASSAGE: 

"YOU ARE . . . INSTRUCTED THAT, ONE, ANY AMOUNT OF MONEY PAID TO AN
INDIVIDUAL TO ENABLE HIM TO PURSUE STUDIES OR RESEARCH, IF SUCH AMOUNT
REPRESENTS EITHER COMPENSATION FOR PAST, PRESENT OR FUTURE EMPLOYMENT
SERVICES, OR REPRESENTS PAYMENT FOR SERVICES WHICH ARE SUBJECT TO THE
DIRECTION OR SUPERVISION OF THE GRANTOR, . . . IS NOT A SCHOLARSHIP OR
FELLOWSHIP UNDER THE TAX LAWS. 

"TWO, ANY AMOUNT OF MONEY PAID TO AN INDIVIDUAL TO ENABLE HIM TO
PURSUE STUDIES OR RESEARCH WHICH STUDIES OR RESEARCH ARE PRIMARILY FOR
THE BENEFIT OF THE GRANTOR IS NOT A SCHOLARSHIP UNDER THE TAX LAWS." 

/30/  WE THUS ENDORSE THE DECISIONS OF THE FIFTH AND SIXTH CIRCUITS
IN USSERY V. UNITED STATES, 296 F.2D 582, AND STEWARD V. UNITED STATES,
363 F.2D 355.  IN USSERY, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
SPECIFICALLY UPHELD TREAS. REG. SEC. 1.117-4(C) AND HELD TAXABLE
MONTHLY PAYMENTS RECEIVED BY AN EMPLOYEE OF THE MISSISSIPPI DEPARTMENT
OF PUBLIC WELFARE WHO HAD BEEN GIVEN LEAVE TO SECURE A MASTER'S DEGREE
IN SOCIAL WORK.  THE TAXPAYER THERE RECEIVED EMPLOYEE BENEFITS WHILE ON
LEAVE, AND WAS OBLIGATED TO RETURN TO THE DEPARTMENT FOLLOWING
COMPLETION OF HIS STUDIES.  STEWART INVOLVED A SIMILAR ARRANGEMENT
UNDER WHICH AN EMPLOYEE OF THE TENNESSEE DEPARTMENT OF PUBLIC WELFARE
RECEIVED MONTHLY STIPENDS AND OTHER BENEFITS DURING AN EDUCATIONAL
LEAVE OF ABSENCE BUT WAS REQUIRED TO RETURN THEREAFTER TO HER PREVIOUS
POSITION.  SEE REESE V. COMMISSIONER, 373 F.2D 742 (C.A. 4TH CIR.),
AFFIRMING 45 T.C. 407 (STUDENT-TEACHER); WODDAIL V. COMMISSIONER, 321
F.2D 721 (C.A. 10TH CIR.) (RESIDENT PHYSICIAN; OBLIGATED TO REMAIN
FOLLOWING PART-TIME PARTICIPATION IN TRAINING PROGRAM); CF. REIFFEN V.
UNITED STATES, 180 CT.CL. 296, 376 F.2D 883 (RELYING SOLELY ON
CHARACTERIZATION OF PAYMENTS AS "PRIMARILY FOR BENEFIT OF GRANTOR"). 
SEVERAL TAX COURT DECISIONS POINT IN THE SAME DIRECTION, ALTHOUGH
TREATMENT OF VARIOUS FACTUAL SITUATIONS UNDER SEC. 117 HAS NOT BEEN
MARKED BY A GREAT DEAL OF CONSISTENCY.  SEE GENERALLY TABAC,
SCHOLARSHIPS AND FELLOWSHIP GRANTS:  AN ADMINISTRATIVE MERRY-GO-ROUND,
46 TAXES 485 (1968). 

THE COMMISSIONER HAS ACQUIESCED IN EVANS V. COMMISSIONER, 34 T.C.
720 (SEE 1965-1 CUM.BULL.  4), WHICH ALLOWED EXCLUSION WHERE, ALTHOUGH
THE TAXPAYER WAS OBLIGATED TO WORK FOR THE GRANTOR FOLLOWING COMPLETION
OF HER STUDIES, THERE HAD BEEN NO PREVIOUS EMPLOYMENT RELATIONSHIP. 
SEE REV. RUL. 65-146, 1965-1 CUM.BULL.  66.  WE ARE INFORMED BY THE
SOLICITOR GENERAL, HOWEVER, THAT THE EVANS ACQUIESCENCE WILL BE
MODIFIED.  SEE ALSO BRONIWITZ V. COMMISSIONER, P-H 1968 TC MEM. DEC.
68,221 (SEPT. 30, 1968) (REQUIREMENT OF SUMMER EMPLOYMENT WITH GRANTOR;
HELD EXCLUDABLE). 

/31/  THE CONTRACT'S PROVISION THAT EMPLOYEES WHO AVAIL THEMSELVES
OF EDUCATIONAL LEAVE WILL BE ASSIGNED DUTIES "COMMENSURATE WITH (THEIR)
EDUCATION AND EXPERIENCE," AND COMPENSATED AT RATES "COMMENSURATE WITH"
THOSE DUTIES, IS HARDLY SUFFICIENT TO AVOID THE CLEAR INFERENCE THAT
THEIR GRANTS ARE FULLY BARGAINED FOR AND IN THE NATURE OF
COMPENSATION.  THE PROGRAM IS FEATURED IN WESTINGHOUSE'S RECRUITING
EFFORTS AS A BENEFIT ATTRACTIVE TO MANY POTENTIAL EMPLOYEES.  MOREOVER,
AS SUGGESTED IN THE TEXT, PARTICIPATION IN THE PROGRAM UNDENIABLY MEANS
GIVING UP THE RIGHT TO TAKE MORE REMUNERATIVE EMPLOYMENT ELSEWHERE FOR
A CONSIDERABLE PERIOD OF TIME.  HAD THE COMPANY MODIFIED ITS PROGRAM SO
THAT THE AMOUNTS OF THE "FELLOWSHIP" GRANTS WERE SPREAD OVER THE YEARS
PRECEDING AND FOLLOWING THE EDUCATIONAL LEAVE-- AS INCREMENTS TO THE
RESPONDENTS' SALARY, SET ASIDE IN A COMPANY-ADMINISTERED "EDUCATIONAL
FUND"-- THERE COULD BE LITTLE DOUBT THAT THOSE AMOUNTS WOULD HAVE
REPRESENTED COMPENSATION.  WE SEE NO PERSUASIVE REASON WHY A DIFFERENT
TAX RESULT SHOULD BE REACHED UNDER TREAS. REG. SEC. 1.117-4(C) ON THE
ACTUAL FACTS INVOLVED HERE.  THERE IS NO MERIT IN THE RESPONDENTS'
OBLIQUE SUGGESTION THAT PAYMENT FOR PRESENT SERVICES IS SOMEHOW
DIFFERENT, WITH RESPECT TO THE QUESTION BEFORE US, FROM DEFERRED OR
ANTICIPATORY PAYMENTS. 

/32/  WE ACCEPT THE SUGGESTION IN THE GOVERNMENT'S BRIEF THAT THE
SECOND PARAGRAPH OF TREAS. REG. SEC. 1.117-4(C)-- WHICH EXCEPTS FROM
THE DEFINITION OF "SCHOLARSHIP" ANY PAYMENTS THAT ARE PAID TO AN
INDIVIDUAL "TO ENABLE HIM TO PURSUE STUDIES OR RESEARCH PRIMARILY FOR
THE BENEFIT OF THE GRANTOR"-- IS MERELY AN ADJUNCT TO THE INITIAL
"COMPENSATION" PROVISION: 

"BY THIS PARAGRAPH, THE TREASURY HAS SUPPLEMENTED THE FIRST IN ORDER
TO IMPOSE TAX ON BARGAINED-FOR ARRANGEMENTS THAT DO NOT CREATE AN
EMPLOYER-EMPLOYEE RELATION, AS, FOR EXAMPLE, IN THE CASE OF AN
INDEPENDENT CONTRACTOR.  BUT THE GENERAL IDEA IS THE SAME:
'SCHOLARSHIP' OR 'FELLOWSHIP' DOES NOT INCLUDE ARRANGEMENTS WHERE THE
RECIPIENT RECEIVES MONEY AND IN RETURN PROVIDES A QUID PRO QUO."  BRIEF
FOR PETITIONER 22. 

THE RESPONDENTS POINT OUT THAT THE INTERNAL REVENUE SERVICE IS
CONSIDERING POSSIBLE REVISIONS OF THE REGULATIONS UNDER SEC. 117.  THE
SOLICITOR GENERAL INFORMS US, HOWEVER, THAT ALTHOUGH REVISIONS MIGHT
"CONFORM THE REGULATIONS TO THE RESULTS REACHED" IN SUCH CASES AS WELLS
V. COMMISSIONER, 40 T.C. 40, NO CHANGES ARE CONTEMPLATED WITH RESPECT
TO SITUATIONS SUCH AS THAT INVOLVED HERE.  REPLY BRIEF FOR PETITIONER
IN SUPPORT OF CERTIORARI 3, N. 2; SEE REV. RUL. 65-59, 1965-1
CUM.BULL.  67. 

MR. JUSTICE DOUGLAS WOULD AFFIRM THE JUDGMENT FOR THE REASONS STATED
BY THE COURT OF APPEALS IN 396 F.2D 258. 

HARRIS WEINSTEIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WALTERS, FORMER ASSISTANT ATTORNEY GENERAL ROGOVIN, JONATHAN S. COHEN,
AND MICHAEL B. ARKIN. 

JAMES C. LARRIMER ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 
..END :
















NLRB V. WYMAN-GORDON CO., 394 U.S. 759 


       NATIONAL LABOR RELATIONS BOARD V. WYMAN-GORDON CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT. 

        NO. 463.  ARGUED MARCH 3, 1969.-- DECIDED APRIL 23, 1969. 


THE NATIONAL LABOR RELATIONS BOARD (NLRB) ORDERED A REPRESENTATION
ELECTION AMONG RESPONDENT'S EMPLOYEES, AND DIRECTED RESPONDENT TO
FURNISH A LIST OF NAMES AND ADDRESSES OF EMPLOYEES ELIGIBLE TO VOTE. 
RESPONDENT REFUSED TO FURNISH THE LIST, THE ELECTION WAS HELD WITHOUT
IT, AND THE UNIONS WERE DEFEATED.  THE NLRB ORDERED A NEW ELECTION AND
RESPONDENT AGAIN REFUSED TO OBEY AN NLRB ORDER TO SUPPLY THE LIST.  THE
NLRB ISSUED A SUBPOENA ORDERING RESPONDENT TO PROVIDE THE LIST OR
RECORDS SHOWING THE EMPLOYEES' NAMES AND ADDRESSES.  THE NLRB FILED AN
ACTION IN THE DISTRICT COURT SEEKING TO HAVE ITS SUBPOENA ENFORCED OR
TO HAVE AN INJUNCTION ISSUED TO COMPEL COMPLIANCE WITH ITS ORDER.  THE
DISTRICT COURT HELD THE NLRB'S ORDER VALID AND DIRECTED RESPONDENT TO
COMPLY.  THE COURT OF APPEALS REVERSED, HOLDING THE ORDER INVALID
BECAUSE IT WAS BASED ON A RULE LAID DOWN IN AN EARLIER NLRB DECISION,
EXCELSIOR UNDERWEAR INC., 156 N.L.R.B. 1236, WHICH RULE HAD NOT BEEN
PROMULGATED IN ACCORDANCE WITH THE RULE-MAKING REQUIREMENTS OF THE
ADMINISTRATIVE PROCEDURE ACT.  HELD:  THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO REINSTATE ITS JUDGMENT.  PP. 761-775. 

397 F.2D 394, REVERSED AND REMANDED. 

MR. JUSTICE FORTAS, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE
STEWART, AND MR. JUSTICE WHITE, CONCLUDED THAT: 

1.  IN THE EXCELSIOR CASE THE NLRB PURPORTED TO EXERCISE ITS QUASI
LEGISLATIVE POWER AND MAKE A RULE WITHOUT FOLLOWING THE RULE-MAKING
REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT.  THE EXCELSIOR "RULE"
IS THEREFORE INVALID.  PP. 763-765. 

2.  HERE RESPONDENT WAS DIRECTED IN AN ADJUDICATORY PROCEEDING TO
SUBMIT A LIST OF EMPLOYEES FOR USE IN CONNECTION WITH AN ELECTION, AND
IT WAS NOT THE EXCELSIOR "RULE" BUT THIS VALID ORDER THAT RESPONDENT
WAS REQUIRED TO OBEY.  P. 766. 

3.  THE REQUIREMENT OF DISCLOSURE OF EMPLOYEES' NAMES IS
SUBSTANTIVELY VALID AS THE NLRB HAS WIDE DISCRETION TO ENSURE THE FAIR
AND FREE CHOICE OF BARGAINING REPRESENTATIVES AND SUCH DISCLOSURE
FURTHERS THIS OBJECTIVE.  P. 767. 

4.  THE LIST OF NAMES COMES WITHIN THE SCOPE OF THE TERM "EVIDENCE"
IN SEC. 11 OF THE NATIONAL LABOR RELATIONS ACT AND SO MAY PROPERLY BE
SUBPOENAED BY THE NLRB.  PP. 768-769. 

MR. JUSTICE BLACK, JOINED BY MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL, CONCLUDED THAT: 

1.  THE REQUIREMENT THAT AN EMPLOYER SUPPLY A LIST OF EMPLOYEES
PRIOR TO AN ELECTION IS VALID AND CAN BE ENFORCED BY SUBPOENA.  P.
769. 

2.  THE EXCELSIOR PRACTICE WAS ADOPTED BY THE NLRB AS A LEGITIMATE
INCIDENT TO THE ADJUDICATION OF A SPECIFIC CASE AND THE NLRB PROPERLY
FOLLOWED THE PROCEDURES APPLICABLE TO "ADJUDICATION" RATHER THAN "RULE
MAKING."  PP. 770-775. 

(A) NLRB'S ADJUDICATORY AND RULE-MAKING POWERS ARE ALMOST
INSEPARABLY RELATED AND THE EXERCISE OF ONE POWER DOES NOT EXCLUDE THE
USE OF THE OTHER.  PP. 770-771. 

(B) THE CHOICE BETWEEN PROCEEDING BY GENERAL RULE OR BY ADJUDICATION
LIES PRIMARILY IN THE INFORMED DISCRETION OF THE NLRB.  PP. 771-772. 

(C) ALL PROCEDURAL SAFEGUARDS REQUIRED FOR ADJUDICATION WERE
SATISFIED IN THE EXCELSIOR CASE AND THAT DECISION DID CONSTITUTE
ADJUDICATION WITHIN THE MEANING OF THE ADMINISTRATIVE PROCEDURE ACT. 
PP. 772-773. 

(D) EVEN THOUGH THE EXCELSIOR LIST-FURNISHING REQUIREMENT WAS TO
APPLY PROSPECTIVELY, THE EXCELSIOR ORDER SHOULD NOT BE REGARDED AS ANY
LESS A PART OF THE ADJUDICATORY PROCESS MERELY BECAUSE THE NLRB DID NOT
FEEL THAT IT SHOULD UPSET EXCELSIOR COMPANY'S RELIANCE ON PAST REFUSALS
TO COMPEL DISCLOSURE BY SETTING ASIDE THAT PARTICULAR ELECTION.  PP.
773-774. 

(E) IT WOULD BE IMPRACTICAL TO REQUIRE THE NLRB, IN EFFECT, TO
PROCEED BY ADJUDICATION ONLY WHEN IT COULD DECIDE, PRIOR TO
ADJUDICATING A SPECIFIC CASE, THAT ANY NEW PRACTICE TO BE ADOPTED WOULD
BE APPLIED RETROACTIVELY.  PP. 774-775. 

MR. JUSTICE FORTAS ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE STEWART, AND MR.
JUSTICE WHITE JOIN. 

ON THE PETITION OF THE INTERNATIONAL BROTHERHOOD OF BOILERMAKERS AND
PURSUANT TO ITS POWERS UNDER SEC. 9 OF THE NATIONAL LABOR RELATIONS
ACT, 49 STAT. 453, 29 U.S.C. 159, THE NATIONAL LABOR RELATIONS BOARD
ORDERED AN ELECTION AMONG THE PRODUCTION AND MAINTENANCE EMPLOYEES OF
THE RESPONDENT COMPANY.  AT THE ELECTION, THE EMPLOYEES WERE TO SELECT
ONE OF TWO LABOR UNIONS AS THEIR EXCLUSIVE BARGAINING REPRESENTATIVE,
OR TO CHOOSE NOT TO BE REPRESENTED BY A UNION AT ALL.  IN CONNECTION
WITH THE ELECTION, THE BOARD ORDERED THE RESPONDENT TO FURNISH A LIST
OF THE NAMES AND ADDRESSES OF ITS EMPLOYEES WHO COULD VOTE IN THE
ELECTION, SO THAT THE UNIONS COULD USE THE LIST FOR ELECTION PURPOSES. 
THE RESPONDENT REFUSED TO COMPLY WITH THE ORDER, AND THE ELECTION WAS
HELD WITHOUT THE LIST.  BOTH UNIONS WERE DEFEATED IN THE ELECTION. 

THE BOARD UPHELD THE UNIONS' OBJECTIONS TO THE ELECTION BECAUSE THE
RESPONDENT HAD NOT FURNISHED THE LIST, AND THE BOARD ORDERED A NEW
ELECTION.  THE RESPONDENT AGAIN REFUSED TO OBEY A BOARD ORDER TO SUPPLY
A LIST OF EMPLOYEES AND THE BOARD ISSUED A SUBPOENA ORDERING THE
RESPONDENT TO PROVIDE THE LIST OR ELSE PRODUCE ITS PERSONNEL AND
PAYROLL RECORDS SHOWING THE EMPLOYEES' NAMES AND ADDRESSES.  THE BOARD
FILED AN ACTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS SEEKING TO HAVE ITS SUBPOENA ENFORCED OR TO HAVE A
MANDATORY INJUNCTION ISSUED TO COMPEL THE RESPONDENT TO COMPLY WITH ITS
ORDER. 

THE DISTRICT COURT HELD THE BOARD'S ORDER VALID AND DIRECTED THE
RESPONDENT TO COMPLY.  270 F.SUPP.  280 (1967).  THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT REVERSED.  397 F.2D 394 (1968). 
THE COURT OF APPEALS THOUGHT THAT THE ORDER IN THIS CASE WAS INVALID
BECAUSE IT WAS BASED ON A RULE LAID DOWN IN AN EARLIER DECISION BY THE
BOARD, EXCELSIOR UNDERWEAR INC., 156 N.L.R.B. 1236 (1966), AND THE
EXCELSIOR RULE HAD NOT BEEN PROMULGATED IN ACCORDANCE WITH THE
REQUIREMENTS THAT THE ADMINISTRATIVE RPOCEDURE ACT PRESCRIBES FOR RULE
MAKING, 5 U.S.C. 553 U.S.C. 553.  /0/  WE GRANTED CERTIORARI TO RESOLVE
A CONFLICT AMONG THE CIRCUITS CONCERNING THE VALIDITY AND EFFECT OF THE
EXCELSIOR RULE.  393 U.S. 932 (1968).  /1/

        I. 

THE EXCELSIOR CASE INVOLVED UNION OBJECTIONS TO THE CERTIFICATION OF
THE RESULTS OF ELECTIONS THAT THE UNIONS HAD LOST AT TWO COMPANIES. 
THE COMPANIES HAD DENIED THE UNIONS A LIST OF THE NAMES AND ADDRESSES
OF EMPLOYEES ELIGIBLE TO VOTE.  IN THE COURSE OF THE PROCEEDINGS, THE
BOARD "INVITED CERTAIN INTERESTED PARTIES" TO FILE BRIEFS AND TO
PARTICIPATE IN ORAL ARGUMENT OF THE ISSUE WHETHER THE BOARD SHOULD
REQUIRE THE EMPLOYER TO FURNISH LISTS OF EMPLOYEES.  156 N.L.R.B., AT
1238.  VARIOUS EMPLOYER GROUPS AND TRADE UNIONS DID SO, AS AMICI
CURIAE.  AFTER THESE PROCEEDINGS, THE BOARD ISSUED ITS DECISION IN
EXCELSIOR.  IT PURPORTED TO ESTABLISH THE GENERAL RULE THAT SUCH A LIST
MUST BE PROVIDED, BUT IT DECLINED TO APPLY ITS NEW RULE TO THE
COMPANIES INVOLVED IN THE EXCELSIOR CASE.  INSTEAD, IT HELD THAT THE
RULE WOULD APPLY "ONLY IN THOSE ELECTIONS THAT ARE DIRECTED, OR
CONSENTED TO, SUBSEQUENT TO 30 DAYS FROM THE DATE OF (THE) DECISION." 
ID., AT 1240, N. 5. 

SPECIFICALLY, THE BOARD PURPORTED TO ESTABLISH "A REQUIREMENT THAT
WILL BE APPLIED IN ALL ELECTION CASES.  THAT IS, WITHIN 7 DAYS AFTER
THE REGIONAL DIRECTOR HAS APPROVED A CONSENT-ELECTION AGREEMENT ENTERED
INTO BY THE PARTIES . . . , OR AFTER THE REGIONAL DIRECTOR AN ELECTION
ELIGIBILITY LIST, CONTAINING THE NAMES AND ADDRESSES OF ALL THE
ELIGIBLE VOTERS.  THE REGIONAL DIRECTOR, IN TURN, SHALL MAKE THIS
INFORMATION AVAILABLE TO ALL PARTIES IN THE CASE.  FAILURE TO COMPLY
WITH THIS REQUIREMENT SHALL BE GROUNDS FOR SETTING ASIDE THE ELECTION
WHENEVER PROPER OBJECTIONS ARE FILED."  ID., AT 1239-1240. 

MAKE . . . , IN THE MANNER PRESCRIBED BY THE ADMINISTRATIVE PROCEDURE
ACT, SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PROVISIONS OF THIS ACT."  29 U.S.C. 156.  THE ADMINISTRATIVE PROCEDURE
ACT CONTAINS SPECIFIC PROVISIONS GOVERNING AGENCY RULE MAKING, WHICH IT
DEFINES AS "AN AGENCY STATEMENT OF GENERAL OR PARTICULAR APPLICABILITY
AND FUTURE EFFECT," 5 U.S.C. 551(4).  /2/  THE ACT REQUIRES, AMONG
OTHER THINGS, PUBLICATION IN THE FEDERAL REGISTER OF NOTICE OF PROPOSED
RULE MAKING AND OF HEARING; OPPORTUNITY TO BE HEARD; A STATEMENT IN THE
RULE OF ITS BASIS AND PURPOSES; AND PUBLICATION IN THE FEDERAL REGISTER
OF THE RULE AS ADOPTED.  SEE 5 U.S.C. 553.  THE BOARD ASKS US TO HOLD
THAT IT HAS DISCRETION TO PROMULGATE NEW RULES IN ADJUDICATORY
PROCEEDINGS, WITHOUT COMPLYING WITH THE REQUIREMENTS OF THE
ADMINISTRATIVE PROCEDURE ACT. 

THE RULE-MAKING PROVISIONS OF THAT ACT, WHICH THE BOARD WOULD AVOID,
WERE DESIGNED TO ASSURE FAIRNESS AND MATURE CONSIDERATION OF RULES OF
GENERAL APPLICATION.  SEE H. R. REP. NO. 1980, 79TH CONG., 2D SESS., 21
26 (1946); S. REP. NO. 752, 79TH CONG. 1ST SESS., 13-16 (1945).  THEY
MAY NOT BE AVOIDED BY THE PROCESS OF MAKING RULES IN THE COURSE OF
ADJUDICATORY PROCEEDINGS.  THERE IS NO WARRANT IN LAW FOR THE BOARD TO
REPLACE THE STATUTORY SCHEME WITH A RULE-MAKING PROCEDURE OF ITS OWN
INVENTION.  APART FROM THE FACT THAT THE DEVICE FASHIONED BY THE BOARD
DOES NOT COMPLY WITH STATUTORY COMMAND, IT OBVIOUSLY FALLS SHORT OF THE
SUBSTANCE OF THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT.  THE
"RULE" CREATED IN EXCELSIOR WAS NOT PUBLISHED IN THE FEDERAL REGISTER,
WHICH IS THE STATUTORY AND ACCEPTED MEANS OF GIVING NOTICE OF A RULE AS
ADOPTED; ONLY SELECTED ORGANIZATIONS WERE GIVEN NOTICE OF THE
"HEARING," WHEREAS NOTICE IN THE FEDERAL REGISTER WOULD HAVE BEEN
GENERAL IN CHARACTER; UNDER THE ADMINISTRATIVE PROCEDURE ACT, THE TERMS
OR SUBSTANCE OF THE RULE WOULD HAVE TO BE STATED IN THE NOTICE OF
HEARING, AND ALL INTERESTED PARTIES WOULD HAVE AN OPPORTUNITY TO
PARTICIPATE IN THE RULE MAKING. 

THE SOLICITOR GENERAL DOES NOT DENY THAT THE BOARD IGNORED THE RULE
MAKING PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT.  /3/  BUT HE
APPEARS TO ARGUE THAT EXCELSIOR'S COMMAND IS A VALID SUBSTANTIVE
REGULATION, BINDING UPON THIS RESPONDENT AS SUCH, BECAUSE THE BOARD
PROMULGATED IT IN THE EXCELSIOR PROCEEDING, IN WHICH THE REQUIREMENTS
FOR VALID ADJUDICATION HAD BEEN MET.  THIS ARGUMENT MISSES THE POINT. 
THERE IS NO QUESTION THAT, IN AN ADJUDICATORY HEARING, THE OARD COULD
VALIDLY DECIDE THE ISSUE WHETHER THE EMPLOYER MUST FURNISH A LIST OF
EMPLOYEES TO THE UNION.  BUT THAT IS NOT WHAT THE BOARD DID IN
EXCELSIOR.  THE BOARD DID NOT EVEN APPLY THE RULE IT MADE TO THE
PARTIES IN THE ADJUDICATORY PROCEEDING, THE ONLY ENTITIES THAT COULD
PROPERLY BE SUBJECT TO THE ORDER IN THAT CASE.  INSTEAD, THE BOARD
PURPORTED TO MAKE A RULE:  I.E., TO EXERCISE ITS QUASI-LEGISLATIVE
POWER. 

ADJUDICATED CASES MAY AND DO, OF COURSE, SERVE AS VEHICLES FOR THE
FORMULATION OF AGENCY POLICIES, WHICH ARE APPLIED AND ANNOUNCED
THEREIN.  SEE H. FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES 36-52
(1962).  /4/  THEY GENERALLY PROVIDE A GUIDE TO ACTION THAT THE AGENCY
MAY BE EXPECTED TO TAKE IN FUTURE CASES.  SUBJECT TO THE QUALIFIED ROLE
OF STARE DECISIS IN THE ADMINISTRATIVE PROCESS, THEY MAY SERVE AS
PRECEDENTS.  BUT THIS IS FAR FROM SAYING, AS THE SOLICITOR GENERAL
SUGGESTS, THAT COMMANDS, DECISIONS, OR POLICIES ANNOUNCED IN
ADJUDICATION ARE "RULES" IN THE SENSE THAT THEY MUST, WITHOUT MORE, BE
OBEYED BY THE AFFECTED PUBLIC. 

IN THE PRESENT CASE, HOWEVER, THE RESPONDENT ITSELF WAS SPECIFICALLY
DIRECTED BY THE BOARD TO SUBMIT A LIST OF THE NAMES AND ADDRESSES OF
ITS EMPLOYEES FOR USE BY THE UNIONS IN CONNECTION WITH THE ELECTION. 
/5/  THIS DIRECTION, WHICH WAS PART OF THE ORDER DIRECTING THAT AN
ELECTION BE HELD, IS UNQUESTIONABLY VALID.  SEE, E.G., NLRB V. WATERMAN
S.S. CO., 309 U.S. 206, 226 (1940).  EVEN THOUGH THE DIRECTION TO
FURNISH THE LIST WAS FOLLOWED BY CITATION TO "EXCELSIOR UNDERWEAR INC.,
156 NLRB NO. 111," IT IS AN ORDER IN THE PRESENT CASE THAT THE
RESPONDENT WAS REQUIRED TO OBEY.  ABSENT THIS DIRECTION BY THE BOARD,
THE RESPONDENT WAS UNDER NO COMPULSION TO FURNISH THE LIST BECAUSE NO
STATUTE AND NO VALIDLY ADOPTED RULE REQUIRED IT TO DO SO. 

BECAUSE THE BOARD IN AN ADJUDICATORY PROCEEDING DIRECTED THE
RESPONDENT ITSELF TO FURNISH THE LIST, THE DECISION OF THE COURT OF
APPEALS FOR THE FIRST CIRCUIT MUST BE REVERSED.  /6/

        II. 

THE RESPONDENT ALSO ARGUES THAT IT NEED NOT OBEY THE BOARD'S ORDER
BECAUSE THE REQUIREMENT OF DISCLOSURE OF EMPLOYEES' NAMES AND ADDRESSES
IS SUBSTANTIVELY INVALID.  THIS ARGUMENT LACKS MERIT.  THE OBJECTIONS
THAT THE RESPONDENT RAISES TO THE REQUIREMENT OF DISCLOSURE WERE
CLEARLY AND CORRECTLY ANSWERED BY THE BOARD IN ITS EXCELSIOR DECISION. 
ALL OF THE UNITED STATES COURTS OF APPEALS THAT HAVE PASSED ON THE
QUESTION HAVE UPHELD THE SUBSTANTIVE VALIDITY OF THE DISCLOSURE
REQUIREMENT, /7/  AND THE COURT BELOW STRONGLY INTIMATED A VIEW THAT
THE REQUIREMENT WAS SUBSTANTIVELY A PROPER ONE, 397 F.2D,AT 396. 

WE HAVE HELD IN A NUMBER OF CASES THAT CONGRESS GRANTED THE BOARD A
WIDE DISCRETION TO ENSURE THE FAIR AND FREE CHOICE OF BARGAINING
REPRESENTATIVES.  SEE, E.G., NLRB V. WATERMAN S.S. CO., SUPRA, AT 226;
NLRB V. A.J. TOWER CO., 329 U.S. 324, 330 (1946).  THE DISCLOSURE
REQUIREMENT FURTHERS THIS OBJECTIVE BY ENCOURAGING AN INFORMED EMPLOYEE
ELECTORATE AND BY ALLOWING UNIONS THE RIGHT OF ACCESS TO EMPLOYEES THAT
MANAGEMENT ALREADY POSSESSES.  IT IS FOR THE BOARD AND NOT FOR THIS
COURT TO WEIGH AGAINST THIS INTEREST THE ASSERTED INTEREST OF EMPLOYEES
IN AVOIDING THE PROBLEMS THAT UNION SOLICITATION MAY PRESENT. 

        III. 

THE RESPONDENT CONTENDS THAT EVEN IF THE DISCLOSURE REQUIREMENT IS
VALID, THE BOARD LACKS POWER TO ENFORCE IT BY SUBPOENA.  SECTION 11(1)
OF THE NATIONAL LABOR RELATIONS ACT PROVIDES THAT THE BOARD SHALL HAVE
ACCESS TO "ANY EVIDENCE OF ANY PERSON BEING INVESTIGATED OR PROCEEDED
AGAINST THAT RELATES TO ANY MATTER UNDER INVESTIGATION OR IN QUESTION,"
AND EMPOWERS THE BOARD TO ISSUE SUBPOENAS "REQUIRING THE ATTENDANCE AND
TESTIMONY OF WITNESSES OR THE PRODUCTION OF ANY EVIDENCE IN SUCH
PROCEEDING OR INVESTIGATION."  SECTION 11(2) GIVES THE DISTRICT COURTS
JURISDICTION, UPON APPLICATION BY THE BOARD, TO ISSUE AN ORDER
REQUIRING A PERSON WHO HAS REFUSED TO OBEY THE BOARD'S SUBPOENA "TO
APPEAR BEFORE THE BOARD . . . THERE TO PRODUCE EVIDENCE IF SO ORDERED
OR THERE TO GIVE TESTIMONY TOUCHING THE MATTER UNDER INVESTIGATION OR
IN QUESTION . . . " 29 U.S.C. 161(1), (2). 

THE RESPONDENT TAKES THE POSITION THAT THESE STATUTORY PROVISIONS DO
NOT GIVE THE BOARD AUTHORITY TO SUBPOENA THE LISTS HERE IN QUESTION
BECAUSE THEY ARE NOT "EVIDENCE" WITHIN THE MEANING OF THE STATUTORY
LANGUAGE.  THE DISTRICT COURT HELD, HOWEVER, THAT "IN THE CONTEXT OF
SEC. 11 OF THE ACT, 'EVIDENCE' MEANS NOT ONLY PROOF AT A HEARING BUT
ALSO BOOKS AND RECORDS AND OTHER PAPERS WHICH WILL BE OF ASSISTANCE TO
THE BOARD IN CONDUCTING A PARTICULAR INVESTIGATION."  /8/  THE COURTS
OF APPEALS THAT HAVE PASSED ON THE QUESTION HAVE CONSTRUED THE TERM
"EVIDENCE" IN A SIMILAR MANNER.  NLRB V. HANES HOSIERY DIVISION, 384
F.2D 188, 191-192 (C.A. 4TH CIR. 1967).  SEE NLRB V. ROHLEN, 385 F.2D
52, 55-58 (C.A. 7TH CIR. 1967); NLRB V. BEECH-NUT LIFE SAVERS, INC. 406
F.2D 253, 259 (C.A. 2D CIR. 1968); BRITISH AUTO PARTS, INC. V. NLRB,
405 F.2D1182, 1184 (C.A. 9TH CIR. 1968); NLRB V. Q-T SHOE MFG. CO., 409
F.2D 1247 (C.A. 3D CIR. 1969).  WE AGREE THAT THE LIST HERE IN ISSUE IS
WITHIN THE SCOPE OF SEC. 11 SO THAT THE BOARD'S SUBPOENA POWER MAY BE
VALIDLY EXERCISED. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO REINSTATE ITS
JUDGMENT. 

IT IS SO ORDERED. 

/0/  (REPORTER'S NOTE:  THE CITATIONS TO THE ADMINISTRATIVE
PROCEDURE ACT IN THE OPINIONS IN THIS CASE ARE TO SUPPLEMENT IV OF THE
1964 EDITION OF THE U.S. CODE.) 

/1/  WHEN WE GRANTED CERTIORARI, THE FIFTH CIRCUIT HAD EXPRESSLY
APPROVED THE PROCEDURE THE BOARD FOLLOWED IN ADOPTING THE EXCELSIOR
RULE.  HOWELL REFINING CO. V. NLRB, 400 F.2D 213 (1968).  TWO OTHER
CIRCUITS HAD APPROVED ENFORCEMENT OF THE EXCELSIOR RULE WITHOUT
EXPLICITLY PASSING ON THE CORRECTNESS OF THE METHOD BY WHICH IT WAS
ADOPTED.  NLRB V. HANES HOSIERY DIVISION, 384 F.2D 188 (C.A. 4TH CIR.
1967); NLRB V. ROHLEN, 385 F.2D 52 (C.A. 7TH CIR. 1967).  AFTER OUR
GRANT OF CERTIORARI IN THE PRESENT CASE, THREE MORE COURTS OF APPEALS
EXPLICITLY UPHELD THE EXCELSIOR RULE AND THE PROCEDURE BY WHICH IT WAS
ADOPTED, NLRB V. BEECH-NUT LIFE SAVERS, INC., 406 F.2D 253 (C.A. 2D
CIR. 1968); BRITISH AUTO PARTS, INC. V. NLRB, 405 F.2D 1182 (C.A. 9TH
CIR. 1968); NLRB V. Q-T SHOE MFG. CO., 409 F.2D 1247 (C.A. 3D CIR.
1969); AND THE FIFTH CIRCUIT REAFFIRMED ITS EARLIER HOLDING IN HOWELL
REFINING CO., GROENDYKE TRANSPORT, INC. V. DAVIS, 406 F.2D 1158
(1969).     /2/  WE AGREE WITH THE OPINION OF CHIEF JUDGE ALDRICH BELOW
THAT THE EXCELSIOR RULE INVOLVES MATTERS OF SUBSTANCE AND THAT IT
THEREFORE DOES NOT FALL WITHIN ANY OF THE ACT'S EXCEPTIONS.  SEE 5
U.S.C. 553(B)(A). 

/3/  THE BOARD HAS NEVER UTILIZED THE ACT'S RULE-MAKING PROCEDURES. 
IT HAS BEEN CRITICIZED FOR CONTRAVENING THE ACT IN THIS MANNER.  SEE,
E.G., 1 K DAVIS, ADMINISTRATIVE LAW TREATISE SEC. 6.13 (SUPP. 1965);
PECK, THE ATROPHIED RULE-MAKING POWERS OF THE NATIONAL LABOR RELATIONS
BOARD, 70 YALEL.J. 729 (1961). 

/4/  THE SOLICITOR GENERAL ARGUES THAT THIS COURT HAS PREVIOUSLY
APPROVED "RULES" ARTICULATED BY THE BOARD IN THE ADJUDICATION OF
PARTICULAR CASES WITHOUT QUESTIONING THE PROPRIETY OF THAT PROCEDURE. 
HE CITES REPUBLIC AVIATION CORP. V. NLRB, 324 U.S. 793 (1945); NLRB V.
AL. J. TOWER CO., 329 U.S. 324 (1946); NLRB V. SEVEN-UP BOTTLING CO.,
344 U.S. 344 (1953); AND BROOKS V. NLRB, 348 U.S. 96 (1954).  IN NONE
OF THESE CASES HAS THIS COURT RULED UPON OR SANCTIONED THE EXERCISE OF
QUASI-LEGISLATIVE POWER-- I.E., RULE MAKING-- WITHOUT COMPLIANCE WITH
SEC. 6 OF THE NLRA AND THE RULE-MAKING PROVISIONS OF THE ADMINISTRATIVE
PROCEDURE ACT. 

/5/  IN HIS DECISION AND DIRECTION OF ELECTION, THE REGIONAL
DIRECTOR ORDERED THAT "(AN ELECTION ELIGIBILITY LIST, CONTAINING THE
NAMES AND ADDRESSES OF ALL THE ELIGIBLE VOTERS, MUST BE FILED WITH THE
REGIONAL DIRECTOR WITHIN SEVEN (7) DAYS OF THE DATE OF THIS DECISION
AND DIRECTION OF ELECTION.  THE REGIONAL DIRECTOR SHALL MAKE THE LIST
AVAILABLE TO ALL PARTIES TO THE ELECTION . . . " 

/6/  MR. JUSTICE HARLAN'S DISSENT ARGUES THAT BECAUSE THE BOARD
IMPROPERLY RELIED UPON THE EXCELSIOR "RULE" IN ISSUING ITS ORDER, WE
ARE OBLIGED TO REMAND.  HE RELIES ON SEC V. CHENERY CORP., 318 U.S. 80
(1943).  TO REMAND WOULD BE AN IDLE AND USELESS FORMALITY.  CHENERY
DOES NOT REQUIRE THAT WE CONVERT JUDICIAL REVIEW OF AGENCY ACTION INTO
A PING-PONG GAME.  IN CHENERY, THE COMMISSION HAD APPLIED THE WRONG
STANDARDS TO THE ADJUDICATION OF A COMPLEX FACTUAL SITUATION, AND THE
COURT HELD THAT IT WOULD NOT UNDERTAKE TO DECIDE WHETHER THE
COMMISSION'S RESULT MIGHT HAVE BEEN JUSTIFIED ON SOME OTHER BASIS. 
HERE, BY CONTRAST, THE SUBSTANCE OF THE BOARD'S COMMAND IS NOT
SERIOUSLY CONTESTABLE.  THERE IS NOT THE SLIGHTEST UNCERTAINTY AS TO
THE OUTCOME OF A PROCEEDING BEFORE THE BOARD, WHETHER THE BOARD ACTED
THROUGH A RULE OR AN ORDER.  IT WOULD BE MEANINGLESS TO REMAND. 

/7/  SEE NLRB V. J. P. STEVENS & CO., 409 F.2D 1207 (C.A. 4TH CIR.
1969), AND THE CASES CITED IN N. 1, SUPRA. 

/8/  270 F. SUPP., AT 285.  THE COURT OF APPEALS DID NOT REACH THE
ISSUE WHETHER TH BOARD COULD SUBPOENA THE LISTS IN QUESTION. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
MARSHALL JOIN, CONCURRING IN THE RESULT. 

I AGREE WITH PARTS II AND III OF THE PREVAILING OPINION OF MR.
JUSTICE FORTAS, HOLDING THAT THE EXCELSIOR REQUIREMENT /1/  THAT AN
EMPLOYER SUPPLY THE UNION WITH THE NAMES AND ADDRESSES OF ITS EMPLOYEES
PRIOR TO AN ELECTION IS VALID ON ITS MERITS AND CAN BE ENFORCED BY A
SUBPOENA.  BUT I CANNOT SUBSCRIBE TO THE CRITICISM IN THAT OPINION OF
THE PROCEDURE FOLLOWED BY THE BOARD IN ADOPTING THAT REQUIREMENT IN THE
EXCELSIOR CASE, 156 N.L.R.B. 1236 (1966).  NOR CAN I ACCEPT THE NOVEL
THEORY BY WHICH THE OPINION MANAGES TO UPHOLD ENFORCEMENT OF THE
EXCELSIOR PRACTICE IN SPITE OF WHAT IT CONSIDERS TO BE STATUTORY
VIOLATIONS PRESENT IN THE PROCEDURE BY WHICH THE REQUIREMENT WAS
ADOPTED.  ALTHOUGH THE OPINION IS APPARENTLY INTENDED TO REBUKE THE
BOARD AND ENCOURAGE IT TO FOLLOW THE PLURALITY'S CONCEPTION OF PROPER
ADMINISTRATIVE PRACTICE, THE RESULT INSTEAD IS TO FREE THE BOARD FROM
ALL JUDICIAL CONTROL WHATSOEVER REGARDING COMPLIANCE WITH PROCEDURES
SPECIFICALLY REQUIRED BY APPLICABLE FEDERAL STATUTES SUCH AS THE
NATIONAL LABOR RELATIONS ACT, 29 U.S.C. 151 ET SEQ., AND THE
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 551 ET SEQ. APPARENTLY, UNDER
THE PREVAILING OPINION, COURTS MUST ENFORCE ANY REQUIREMENT ANNOUNCED
IN A PURPORTED "ADJUDICATION" EVEN IF IT CLEARLY WAS NOT ADOPTED AS AN
INCIDENT TO THE DECISION OF A CASE BEFORE THE AGENCY, AND MUST ENFORCE
"RULES" ADOPTED IN A PURPORTED "RULE MAKING"  EVEN IF THE AGENCY
MATERIALLY VIOLATED THE SPECIFIC REQUIREMENTS THAT CONGRESS HAS
DIRECTED FOR SUCH PROCEEDINGS IN THE ADMINISTRATIVE PROCEDURE ACT.  I
FOR ONE WOULD NOT GIVE JUDICIAL SANCTION TO ANY SUCH ILLEGAL AGENCY
ACTION. 

IN THE PRESENT CASE, HOWEVER, I AM CONVINCED THAT THE EXCELSIOR
PRACTICE WAS ADOPTED BY THE BOARD AS A LEGITIMATE INCIDENT TO THE
ADJUDICATION OF A SPECIFIC CASE BEFORE IT, AND FOR THAT REASON I WOULD
HOLD THAT THE BOARD PROPERLY FOLLOWED THE PROCEDURES APPLICABLE TO
"ADJUDICATION" RATHER THAN "RULE MAKING."  SINCE MY REASONS FOR JOINING
IN REVERSAL OF THE COURT OF APPEALS DIFFER SO SUBSTANTIALLY FROM THOSE
SET FORTH IN THE PREVAILING OPINION, I WILL SPELL THEM OUT AT SOME
LENGTH. 

MOST ADMINISTRATIVE AGENCIES, LIKE THE LABOR BOARD HERE, ARE GRANTED
TWO FUNCTIONS BY THE LEGISLATION CREATING THEM:  (1) THE POWER UNDER
CERTAIN CONDITIONS TO MAKE RULES HAVING THE EFFECT OF LAWS, THAT IS,
GENERALLY SPEAKING, QUASI-LEGISLATIVE POWER; AND (2) THE POWER TO HEAR
AND ADJUDICATE PARTICULAR CONTROVERSIES, THAT IS QUASI-JUDICIAL POWER. 
THE LINE BETWEEN THESE TWO FUNCTIONS IS NOT ALWAYS A CLEAR ONE AND IN
FACT THE TWO FUNCTIONS MERGE AT MANY POINTS.  FOR EXAMPLE, IN
EXERCISING IT QUASI-JUDICIAL FUNCTION AS AGENCY MUST FREQUENTLY DECIDE
CONTROVERSIES ON THE BASIS OF NEW DOCTRINES, NOT THERETOFORE APPLIED TO
A SPECIFIC PROBLEM, THOUGH DRAWN TO BE SURE FROM BROADER PRINCIPLES
REFLECTING THE PURPOSES OF THE STATUTES INVOLVED AND FROM THE RULES
INVOKED IN DEALING WITH RELATED PROBLEMS.  IF THE AGENCY DECISION
REACHED UNDER THE ADJUDICATORY POWER BECOMES A PRECEDENT, IT GUIDES
FUTURE CONDUCT IN MUCH THE SAME WAY AS THOUGH IT WERE A NEW RULE
PROMULGATED UNDER THE RULE-MAKING POWER, AND BOTH AN ADJUDICATORY ORDER
AND A FORMAL "RULE" ARE ALIKE SUBJECT TO JUDICIAL REVIEW.  CONGRESS
GAVE THE LABOR BOARD BOTH OF THESE SEPARATE BUT ALMOST INSEPARABLY
RELATED POWERS.  /2/  NO LANGUAGE IN THE NATIONAL LABOR RELATIONS ACT
REQUIRES THAT THE GRANT OR THE EXERCISE OF ONE POWER WAS INTENDED TO
EXCLUDE THE BOARD'S USE OF THE OTHER. 

NOR DOES ANY LANGUAGE IN THE ADMINISTRATIVE PROCEDURE ACT REQUIRE
SUCH A CONCLUSION.  THE ACT DOES SPECIFY THE PROCEDURE BY WHICH THE
RULE-MAKING POWER IS TO BE EXERCISED, REQUIRING PUBLICATION OF NOTICE
FOR THE BENEFIT OF INTERESTED PARTIES AND PROVISION OF AN OPPORTUNITY
FOR THEM TO BE HEARD, AND, AFTER ESTABLISHMENT OF A RULE AS PROVIDED IN
THE ACT, IT IS THEN TO BE PUBLISHED IN THE FEDERAL REGISTER.  CONGRESS
HAD A LAUDABLE PURPOSE IN PRESCRIBING THESE REQUIREMENTS, AND IT WAS
EVIDENTLY CONTEMPLATED THAT ADMINISTRATIVE AGENCIES LIKE THE LABOR
BOARD WOULD FOLLOW THEM WHEN SETTING OUT TO ANNOUNCE A NEW RULE OF LAW
TO GOVERN PARTIES IN THE FUTURE.  IN THIS SAME STATUTE, HOWEVER,
CONGRESS ALSO CONFERRED ON THE AFFECTED ADMINISTRATIVE AGENCIES THE
POWER TO PROCEED BY ADJUDICATION, AND CONGRESS SPECIFIED A DISTINCT
PROCEDURE BY WHICH THIS ADJUDICATORY POWER IS TO BE EXERCISED.  /3/
THE ACT DEFINES "ADJUDICATION" AS "AGENCY PROCESS FOR THE FORMULATION
OF AN ORDER," AND "ORDER" IS DEFINED AS "THE WHOLE OR A PART OF A FINAL
DISPOSITION, WHETHER AFFIRMATIVE, NEGATIVE, INJUNCTIVE, OR DECLARATORY
IN FORM, OF AN AGENCY IN A MATTER OTHER THAN RULE MAKING BUT INCLUDING
LICENSING."  5 U.S.C. 441(7), (6).  THUS, ALTHOUGH IT IS TRUE THAT THE
ADJUDICATORY APPROACH FREES AN ADMINISTRATIVE AGENCY FROM THE
PROCEDURAL REQUIREMENTS SPECIFIED FOR RULE MAKING, THE ACT PERMITS THIS
TO BE DONE WHENEVER THE ACTION INVOLVED CAN SATISFY THE DEFINITION OF
"ADJUDICATION" AND THEN IMPOSES SEPARATE PROCEDURAL REQUIREMENTS THAT
MUST BE MET IN ADJUDICATION.  UNDER CIRCUMSTANCES, SO LONG AS THE
MATTER INVOLVED CAN BE DEALT WITH IN AWAY SATISFYING THE DEFINITION OF
EITHER "RULE MAKING" OR "ADJUDICATION" UNDER THE ADMINISTRATIVE
PROCEDURE ACT, THAT ACT, ALONG WITH THE LABOR RELATIONS ACT, SHOULD BE
READ AS CONFERRING UPON THE BOARD THE AUTHORITY TO DECIDE, WITHIN ITS
INFORMED DISCRETION, WHETHER TO PROCEED BY RULE MAKING OR
ADJUDICATION.  OUR DECISION IN SEC V. CHENERY CORP., 332 U.S. 194
(1947), THOUGH IT DID NOT INVOLVE THE LABOR BOARD OR THE ADMINISTRATIVE
PROCEDURE ACT, IS NONETHELESS EQUALLY APPLICABLE HERE.  AS WE EXPLAINED
IN THAT CASE, "THE CHOICE MADE BETWEEN PROCEEDING BY GENERAL RULE OR BY
INDIVIDUAL, AD HOC LITIGATION IS ONE THAT LIES PRIMARILY IN THE
INFORMED DISCRETION OF THE ADMINISTRATIVE AGENCY."  ID., AT 203. 

IN THE PRESENT CASE THERE IS NO DISPUTE THAT ALL THE PROCEDURAL
SAFEGUARDS REQUIRED FOR "ADJUDICATION" WERE FULLY SATISFIED IN
CONNECTION WITH THE BOARD'S EXCELSIOR DECISION, AND IT SEEMS PLAIN TO
ME THAT THAT DECISION DID CONSTITUTE "ADJUDICATION" WITHIN THE MEANING
OF THE ADMINISTRATIVE PROCEDURE ACT, EVEN THOUGH THE REQUIREMENT WAS TO
BE PROSPECTIVELY APPLIED.  SEE GREAT NORTHERN R. CO. V. SUNBURST CO.,
287 U.S. 358 (1932).  THE BOARD DID NOT ABSTRACTLY DECIDE OUT OF THE
BLUE TO ANNOUNCE A BRAND NEW RULE OF LAW TO GOVERN LABOR ACTIVITIES IN
THE FUTURE, BUT RATHER ESTABLISHED THE PROCEDURE AS A DIRECT
CONSEQUENCE OF THE PROPER EXERCISE OF ITS ADJUDICATORY POWERS. 
TO CONDUCT INVESTIGATION, HOLD HEARINGS, AND SUPERVISE ELECTIONS TO
DETERMINE THE EXCLUSIVE BARGAINING REPRESENTATIVE THAT THE EMPLOYEES
WISH TO REPRESENT THEM.  THIS IS A KEY PROVISION OF THE PLAN CONGRESS
ADOPTED TO SETTLE LABOR QUARRELS THAT MIGHT INTERRUPT THE FREE FLOW OF
COMMERCE.  A CONTROVERSY AROSE BETWEEN THE EXCELSIOR COMPANY AND ITS
EMPLOYEES AS TO THE BARGAINING AGENT THE EMPLOYEES DESIRED TO ACT FOR
THEM.  THE BOARD'S POWER TO PROVIDE THE PROCEDURES FOR THE ELECTION WAS
INVOKED, AN ELECTION WAS HELD, AND THE LOSING UNIONS SOUGHT TO HAVE
THAT ELECTION SET ASIDE.  UNDOUBTEDLY THE BOARD PROCEEDING FOR
DETERMINATION OF WHETHER TO CONFIRM OR SET ASIDE THAT ELECTION WAS
"AGENCY PROCESS FOR THE FORMULATION OF AN ORDER" AND THUS WAS
"ADJUDICATION" WITHIN THE MEANING OF THE ADMINISTRATIVE PROCEDURE ACT. 

THE PREVAILING OPINION SEEMS TO HOLD THAT THE EXCELSIOR REQUIREMENT
CANNOT BE CONSIDERED THE RESULT OF ADJUDICATION BECAUSE THE BOARD DID
NOT APPLY IT TO THE PARTIES IN THE EXCELSIOR CASE ITSELF, BUT RATHER
ANNOUNCED THAT IT WOULD BE APPLIED ONLY TO ELECTIONS CALLED 30 DAYS
AFTER THE DATE OF THE EXCELSIOR DECISION.  BUT THE EXCELSIOR ORDER WAS
NONETHELESS AN INSEPARABLE PART OF THE ADJUDICATORY PROCESS.  THE
PRINCIPAL ISSUE BEFORE THE BOARD IN THE EXCELSIOR CASE WAS WHETHER THE
ELECTION SHOULD BE SET ASIDE ON THE GROUND, URGED BY THE UNIONS, THAT
THE EMPLOYER HAD REFUSED TO MAKE THE EMPLOYEE LISTS AVAILABLE TO THEM. 
SEE 156 N.L.R.B., AT 1236-1238.  THE BOARD DECIDED THAT THE ELECTION
INVOLVED THERE SHOULD NOT BE SET ASIDE AND THUS REJECTED THE CONTENTION
OF THE UNIONS.  IN DOING SO, THE BOARD CHOSE TO EXPLAIN THE REASONS FOR
ITS REJECTION OF THEIR CLAIM, AND IT IS THIS EXPLANATION, THE BOARD'S
WRITTEN OPINION, WHICH IS THE SOURCE OF THE EXCELSIOR REQUIREMENT.  THE
BOARD'S OPINION SHOULD NOT BE REGARDED AS ANY LESS AN APPROPRIATE PART
OF THE ADJUDICATORY PROCESS MERELY BECAUSE THE REASON IT GAVE FOR
REJECTING THE UNIONS' POSITION WAS NOT THAT THE BOARD DISAGREED WITH
THEM AS TO THE MERITS OF THE DISCLOSURE PROCEDURE BUT RATHER, SEE 156
N.L.R.B., AT 1239, 1240, N. 5, THAT WHILE FULLY AGREEING THAT
DISCLOSURE SHOULD BE REQUIRED, THE BOARD DID NOT FEEL THAT IT SHOULD
UPSET THE EXCELSIOR COMPANY'S JUSTIFIED RELIANCE ON PREVIOUS REFUSALS
TO COMPEL DISCLOSURE BY SETTING ASIDE THIS PARTICULAR ELECTION. 

APART FROM THE FACT THAT THE DECISIONS WHETHER TO ACCEPT A "NEW"
REQUIREMENT URGED BY ONE PARTY AND IF SO, WHETHER TO APPLY IT
RETROACTIVELY TO THE OTHER PARTY ARE INHERENT PARTS OF THE ADJUDICATORY
PROCESS, I THINK THE OPPOSING THEORY ACCEPTED BY THE COURT OF APPEALS
AND BY THE PREVAILING OPINION TODAY IS A HIGHLY IMPRACTICAL ONE.  IN
EFFECT, IT WOULD REQUIRE AN AGENCY LIKE THE LABOR BOARD TO PROCEED BY
ADJUDICATION ONLY WHEN IT COULD DECIDE, PRIOR TO ADJUDICATING A
PARTICULAR CASE, THAT ANY NEW PRACTICE TO BE ADOPTED WOULD BE APPLIED
RETROACTIVELY.  OBVIOUSLY, THIS DECISION CANNOT PROPERLY BE MADE UNTIL
ALL THE ISSUES RELEVANT TO ADOPTION OF THE PRACTICE ARE FULLY
CONSIDERED IN CONNECTION WITH THE FINAL DECISION OF THAT CASE.  IF THE
BOARD WERE TO DECIDE, AFTER CAREFUL EVALUATION OF ALL THE ARGUMENTS
PRESENTED TO IT IN THE ADJUDICATORY PROCEEDING, THAT IT MIGHT BE FAIRER
TO APPLY THE PRACTICE ONLY PROSPECTIVELY, IT WOULD BE FACED WITH THE
UNPLEASANT CHOICE OF EITHER STARTING ALL OVER AGAIN TO EVALUATE THE
MERITS OF THE QUESTION, THIS TIME IN A "RULE-MAKING" PROCEEDING, OR
OVERRIDING THE CONSIDERATIONS OF FAIRNESS AND APPLYING ITS ORDER
RETROACTIVELY ANYWAY, IN ORDER TO PRESERVE THE VALIDITY OF THE NEW
PRACTICE AND AVOID DUPLICATION OF EFFORT.  I SEE NO GOOD REASON TO
IMPOSE ANY SUCH INFLEXIBLE REQUIREMENT ON THE ADMINISTRATIVE AGENCIES. 

FOR ALL OF THE FOREGOING REASONS I WOULD HOLD THAT THE BOARD ACTED
WELL WITHIN ITS DISCRETION IN CHOOSING TO PROCEED AS IT DID, AND I
WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS ON THIS BASIS. 

/1/  THIS REQUIREMENT FIRST ANNOUNCED IN THE EXCELSIOR CASE, 156
N.L.R.B. 1236 (1966), HAS OFTEN BEEN REFERRED TO BY THE BOARD, THE
LOWER COURTS, AND THE COMMENTATORS AS "THE EXCELSIOR RULE."  I
UNDERSTAND THE USE OF THE WORD "RULE" IN THIS CONTEXT TO IMPLY SIMPLY
THAT THE REQUIREMENT IS A RULE OF LAW SUCH AS WOULD BE ANNOUNCED IN A
COURT OPINION AND NOT NECESSARILY THAT IT IS THE KIND OF "RULE"
REQUIRED TO BE PROMULGATED IN ACCORDANCE WITH THE "RULE-MAKING"
PROCEDURES OF THE ADMINISTRATIVE PROCEDURE ACT.  FOR THE SAKE OF
CLARITY, HOWEVER, I HAVE CHOSEN IN THIS OPINION TO AVOID USE OF THE
WORD "RULE" WHEN REFERRING TO THE PROCEDURE REQUIRED BY THE EXCELSIOR
DECISION.     /2/  SEE NATIONAL LABOR RELATIONS ACT SECS. 6, 9(C)(1),
10; 29 U.S.C. 156, 159(C)(1), 160. 

/3/  THE PROCEDURE TO BE FOLLOWED IN "ADJUDICATION," WHICH INCLUDES
NOTICE OF THE ISSUES, AN OPPORTUNITY FOR RESPONSIVE PLEADINGS, A
HEARING, AND DECISION, IS SPECIFIED IN 5 U.S.C. 554, 556, AND 557.  THE
ADMINISTRATIVE PROCEDURE ACT EXPRESSLY EXEMPTS PROCEEDINGS FOR "THE
CERTIFICATION OF WORKER REPRESENTATIVES" FROM THESE REQUIREMENTS, 5
U.S.C. 554(A)(6), 556(A), 557(A), AND THESE PROCEEDINGS ARE THEREFORE
GOVERNED ONLY BY THE REQUIREMENTS SPECIFIED IN THE NATIONAL LABOR
RELATIONS ACT, 29 U.S.C. 151 ET SEQ. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 553(B) PROVIDES THAT
GENERAL NOTICE "OF PROPOSED RULE MAKING" SHALL BE PUBLISHED IN THE
FEDERAL REGISTER.  PUBLIC PARTICIPATION-- IN ESSENCE A HEARING-- IS
PROVIDED, SEC. 553(C).  AND "INTERESTED" PERSONS ARE GIVEN THE RIGHT TO
PETITION FOR THE ISSUANCE, AMENDMENT, OR REPEAL OF A RULE, SEC.
553(C). 

IN EXCELSIOR UNDERWEAR INC., 156 N.L.R.B. 1236, THE BOARD IN 1966
DECIDED (1) THAT AN EMPLOYER WOULD BE REQUIRED TO FURNISH THE REGIONAL
DIRECTOR, PRIOR TO THE CONDUCTING OF A REPRESENTATION ELECTION, THE
NAMES AND ADDRESSES OF THE ELIGIBLE VOTERS, WHICH LIST WOULD THEN BE
MADE AVAILABLE TO ALL CONTESTANTS IN THE ELECTION, BUT (2) THAT THIS
REQUIREMENT WOULD APPLY ONLY PROSPECTIVELY, TO ALL ELECTIONS DIRECTED
OR CONSENTED TO SUBSEQUENT TO 30 DAYS AFTER THE DATE OF ITS DECISION
THERE. 

THE NOTICE AND HEARING PROCEDURE PRESCRIBED BY SEC. 553(B) WAS NOT
FOLLOWED; AND IN THIS CASE, AN ELECTION WAS DIRECTED SEVEN MONTHS AFTER
THE EXCELSIOR DECISION, THE BOARD APPLYING THE EXCELSIOR RULE. 

I AM WILLING TO ASSUME THAT, IF THE BOARD DECIDED TO TREAT EACH CASE
ON ITS SPECIAL FACTS AND PERFORM ITS ADJUDICATORY FUNCTION IN THE
CONVENTIONAL WAY, WE SHOULD HAVE NO DIFFICULTY IN AFFIRMING ITS
ACTION.  THE DIFFICULTY IS THAT IT CHOSE A DIFFERENT COURSE IN THE
EXCELSIOR CASE AND, HAVING DONE SO, IT SHOULD BE BOUND TO FOLLOW THE
PROCEDURES PRESCRIBED IN THE ACT AS MY BROTHER HARLAN HAS OUTLINED
THEM.  WHEN WE HOLD OTHERWISE, WE LET THE BOARD "HAVE ITS CAKE AND EAT
IT TOO." 

THE COMMITTEE REPORTS MAKE PLAIN THAT THE ACT "PROVIDES QUITE
DIFFERENT PROCEDURES FOR THE 'LEGISLATIVE' AND 'JUDICIAL' FUNCTIONS OF
ADMINISTRATIVE AGENCIES."  S. REP. NO. 752, 79TH CONG., 1ST SESS., 7;
H. R. REP. NO. 1980, 79TH CONG., 2D SESS., 17. 


     "EXCEPT WHEN NOTICE OR HEARING IS REQUIRED BY STATUTE, THIS
SUBSECTION DOES NOT APPLY-- 

     "(A) TO INTERPRETATIVE RULES, GENERAL STATEMENTS OF POLICY, OR

  RULES OF AGENCY ORGANIZATION, PROCEDURE, OR PRACTICE." 

WE NEED NOT STOP TO INQUIRE WHAT THE WORD "PROCEDURE" IN THAT
CONTEXT EMBRACES.  FOR SEC. 553(D) PROVIDES, WITH EXCEPTIONS NOT
MATERIAL /1/  HERE THAT: 

     "THE REQUIRED PUBLICATION OR SERVICE OF A SUBSTANTIVE RULE

  SHALL BE MADE NOT LESS THAN 30 DAYS BEFORE ITS EFFECTIVE DATE . .

. " 

THE BOARD APPARENTLY DECIDED THE EXCELSIOR CASE WITH SEC. 553(D) IN
MIND, FOR IT MADE THE PROPOSED NEW RULE EFFECTIVE AFTER 30 DAYS.  THE
HOUSE REPORT STATES THAT SEC. 553(D) (WHICH WAS SEC. 4(C) IN ITS DRAFT)
"DOES NOT PROVIDE PROCEDURES ALTERNATIVE TO NOTICE AND OTHER PUBLIC
PROCEEDINGS REQUIRED BY THE PRIOR SECTIONS."  ID., AT 25.  AND THAT
REPORT ADDED, "IT WILL AFFORD PERSONS AFFECTED A REASONABLE TIME TO
PREPARE FOR THE EFFECTIVE DATE OF A RULE OR RULES OR TO TAKE ANY OTHER
ACTION WHICH THE ISSUANCE OF RULES MAY PROMPT,"  IBID.  AND SEE S.
REP., SUPRA, AT 15. 

THE "SUBSTANTIVE" RULES DESCRIBED BY SEC. 553(D) MAY POSSIBLY COVER
"ADJUDICATIONS," EVEN THOUGH THEY REPRESENT PERFORMANCE OF THE
"JUDICIAL" FUNCTION.  BUT IT IS NO ANSWER TO SAY THAT THE ORDER UNDER
REVIEW WAS "ADJUDICATORY."  FOR AS MY BROTHER HARLAN SAYS, AN AGENCY IS
NOT ADJUDICATING WHEN IT IS MAKING A RULE TO FIT FUTURE CASES.  A RULE
LIKE THE ONE IN EXCELSIOR IS DESIGNED TO FIT ALL CASES AT ALL TIMES. 
IT IS NOT PARTICULARIZED TO SPECIAL FACTS.  IT IS A STATEMENT OF FAR
REACHING POLICY COVERING ALL FUTURE REPRESENTATION ELECTIONS. 

IT SHOULD THEREFORE HAVE BEEN PUT DOWN FOR THE PUBLIC HEARING
PRESCRIBED BY THE ACT. 

THE RULE-MAKING PROCEDURE PERFORMS IMPORTANT FUNCTIONS.  IT GIVES
NOTICE TO AN ENTIRE SEGMENT OF SOCIETY OF THOSE CONTROLS OR
REGIMENTATION THAT IS FORTHCOMING.  IT GIVES AN OPPORTUNITY FOR PERSONS
AFFECTED TO BE HEARD.  RECENTLY THE PROPOSED RULES OF THE FEDERAL
HIGHWAY ADMINISTRATION GOVERNING THE LOCATION AND DESIGN OF FREEWAYS. 
33 FED.REG.  15663, WERE PUT DOWN FOR A HEARING; AND THE GOVERNOR OF
EVERY STATE APPEARED OR SENT AN EMISSARY.  THE RESULT WAS A REVISION OF
THE RULES BEFORE THEY WERE PROMULGATED.  34 FED.REG.  727. 

THAT IS NOT AN UNCOMMON EXPERIENCE.  AGENCIES DISCOVER THAT THEY ARE
NOT ALWAYS REPOSITORIES OF ULTIMATE WISDOM; THEY LEARN FROM THE
SUGGESTIONS OF OUTSIDERS AND OFTEN BENEFIT FROM THAT ADVICE.  SEE H.
FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES 45 (1962). 

THIS IS A HEALTHY PROCESS THAT HELPS MAKE A SOCIETY VIABLE.  THE
MULTIPLICATION OF AGENCIES AND THEIR GROWING POWER MAKE THEM MORE AND
MORE REMOTE FROM THE PEOPLE AFFECTED BY WHAT THEY DO AND MAKE MORE
LIKELY THE ARBITRARY EXERCISE OF THEIR POWERS.  PUBLIC AIRING OF
PROBLEMS THROUGH RULE MAKING MAKES THE BUREAUCRACY MORE RESPONSIVE TO
PUBLIC NEEDS AND IS AN IMPORTANT BRAKE ON THE GROWTH OF ABSOLUTISM IN
THE REGIME THAT NOW GOVERNS ALL OF US. 

MANY FEDERAL AGENCIES TOUCH ON NUMEROUS ASPECTS OF THE LIVES OF THE
POOR.  RULE MAKING FOR THIS GROUP IS DISCUSSED IN BONFIELD,
REPRESENTATION FOR THE POOR IN FEDERAL RULEMAKING, 67 MICH.L.REV.  511,
512 (1969): 

     "AN AGENCY PROMULGATING RULES AFFECTING THE POOR CANNOT ASSUME

THAT IT AUTOMATICALLY KNOWS WHAT IS BEST FOR SUCH PEOPLE. 

  GOVERNMENT ADMINISTRATORS ARE USUALLY PERSONS WITH MIDDLE-CLASS

  VIEW POINTS, ORIENTATIONS, AND UNDERSTANDINGS.  THIS MEANS THAT

  THE PERSONNEL OF FEDERAL AGENCIES MAY BE EXPECTED TO REFLECT MORE

  ACCURATELY THE INTERESTS OF THE AFFLUENT THAN THOSE OF THE

  ECONOMICALLY UNDERPRIVILEGED.  CONSEQUENTLY, THERE IS A SPECIAL

  REASON FOR CONCERN WHEN, AS IS NOW THE CASE, THE INTERESTS OF

  POOR PEOPLE ARE INADEQUATELY REPRESENTED IN THE RULEMAKING

  PROCESS." 

WHILE THAT SUGGESTION MAY NOT BE RELEVANT TO THE PRESENT LABOR
MANAGEMENT AREA AND THE SOPHISTICATED OPPONENTS WITH WHICH THIS CASE IS
CONCERNED, IT DOES ILLUSTRATE THAT WHEN WE ARE LAX AND ALLOW FEDERAL
AGENCIES TO PLAY FAST AND LOOSE WITH RULE MAKING, WE SET A PRECEDENT
WITH DANGEROUS REPERCUSSIONS. 

IT HAS BEEN STATED THAT "THE SURVIVAL OF A QUESTIONABLE RULE SEEMS
SOMEWHAT MORE LIKELY WHEN IT IS SUBMERGED IN THE FACTS OF A GIVEN CASE"
THAN WHEN RULE MAKING IS USED.  SEE SHAPIRO, THE CHOICE OF RULEMAKING
OR ADJUDICATION IN THE DEVELOPMENT OF ADMINISTRATIVE POLICY, 78
HARV.L.REV.  921, 946-947 (1965).  MOREOVER, "AGENCIES APPEAR TO BE
FREER TO DISREGARD THEIR OWN PRIOR DECISION THAN THEY ARE TO DEPART
FROM THEIR REGULATIONS."  ID., AT 947.  FAILURE TO MAKE FULL USE OF
RULE-MAKING POWER IS ATTRIBUTABLE AT LEAST IN PART "TO ADMINISTRATIVE
INERTIA AND RELUCTANCE TO TAKE A CLEAR STAND."  ID., AT 972. 

RULE MAKING IS NO CURE-ALL; BUT IT DOES FORCE IMPORTANT ISSUES INTO
FULL PUBLIC DISPLAY AND IN THAT SENSE MAKES FOR MORE RESPONSIBLE
ADMINISTRATIVE ACTION. 

I WOULD HOLD THE AGENCIES GOVERNED BY THE RULE-MAKING PROCEDURE
STRICTLY TO ITS REQUIREMENTS AND NOT ALLOW THEM TO PLAY FAST AND LOOSE
AS THE NATIONAL LABOR RELATIONS BOARD APPARENTLY LIKES TO DO.  /2/ 

AS STATED BY THE COURT OF APPEALS, THE PROCEDURE USED IN THE
EXCELSIOR CASE PLAINLY FLOUTED THE ACT: 

     "RECOGNIZING THE PROBLEM TO BE ONE AFFECTING MORE THAN JUST
THE

  PARTIES BEFORE IT, THE BOARD CHOSE TO SOLICIT THE ASSISTANCE OF

  SELECTED AMICI CURIAE, AND, ULTIMATELY, TO ESTABLISH A RULE WHICH

  NOT ONLY DID NOT APPLY TO THE PARTIES BEFORE IT, BUT DID NOT TAKE

  EFFECT FOR THIRTY DAYS.  IN SO DOING WE CONSIDER THAT THE BOARD,

TO PUT IT BLUNTLY, DESIGNED ITS OWN

RULE-MAKING PROCEDURE, ADOPTING SUCH PART OF THE CONGRESSIONAL MANDATE
AS IT CHOSE, AND REJECTING THE REST."  397 F.2D 394, 396-397. 

I WOULD AFFIRM THE JUDGMENT. 

/1/  THE RULE-MAKING PROVISION DOES NOT APPLY TO 

"(1) A MILITARY OR FOREIGN AFFAIRS FUNCTION OF THE UNITED STATES;
OR 

"(2) A MATTER RELATING TO AGENCY MANAGEMENT OR PERSONNEL OR TO
PUBLIC PROPERTY, LOANS, GRANTS, BENEFITS, OR CONTRACTS."  5 U.S.C.
553(A). 

THESE EXCEPTIONS EXCLUDE, INTER ALIA, THE NATIONAL FOREST SERVICE,
THE NATIONAL PART SYSTEM, THE BUREAU OF LAND MANAGEMENT, AND OTHER
AGENCIES DEALING WITH "PUBLIC PROPERTY" SUCH AS THE INTERIOR DEPARTMENT
AND ITS LEASES OFF-SHORE OIL PROPERTIES. 

FOR A COMPILATION OF FEDERAL AGENCY RULES ON RULE MAKING SEE J. PIKE
& H. FISCHER, ADMINISTRATIVE LAW (2D SERIES 1952)9 

/2/  "THE NLRB HAS NEVER USED ITS RULE-MAKING POWER; IT MISUSES THE
METHODS OF ADJUDICATION FOR MAKING RULES, AND IT USES PRESS RELEASES
NOT PUBLISHED IN THE FEDERAL REGISTER, FOR ANNOUNCING POLICIES THAT
OUGHT TO BE EMBODIED IN FORMAL RULES.  IT SEEMS TO BE VIOLATING SEC. 3
AND SEC. 4 OF THE ADMINISTRATIVE PROCEDURE ACT, AND THE RESULT IN SOME
INSTANCES IS SERIOUS INJUSTICE."  1 K. DAVIS, ADMINISTRATIVE LAW
TREATISE SEC. 6.13 (SUPP. 1965).  AND SEE PECK, THE ATROPHIED RULE
MAKING POWERS OF THE NATIONAL LABOR RELATIONS BOARD, 70 YALEL.J. 729
(1961). 

MR. JUSTICE HARLAN, DISSENTING. 

THE LANGUAGE OF THE ADMINISTRATIVE PROCEDURE ACT DOES NOT SUPPORT
THE GOVERNMENT'S CLAIM THAT AN AGENCY IS "ADJUDICATING" WHEN IT
ANNOUNCES A RULE WHICH IT REFUSES TO APPLY IN THE DISPUTE BEFORE IT.
THE ACT MAKES IT CLEAR THAN AN AGENCY "ADJUDICATES" ONLY WHEN ITS
PROCEDURES RESULT IN THE "FORMULATION OF AN ORDER."  5 U.S.C. 551(7). 
(EMPHASIS SUPPLIED.)  AN "ORDER" IS DEFINED TO INCLUDE "THE WHOLE OR A
PART OF A FINAL DISPOSITION . . . OF AN AGENCY IN A MATTER OTHER THAN
RULE MAKING . . . " 5 U.S.C. 551(6).  (EMPHASIS SUPPLIED.)  THIS
DEFINITION MAKES IT APPARENT THAT AN AGENCY IS NOT ADJUDICATING WHEN IT
IS MAKING A RULE, WHICH THE ACT DEFINES AS "AN AGENCY STATEMENT OF
GENERAL OR PARTICULAR APPLICABILITY AND FUTURE EFFECT . . . " 5 U.S.C.
551(4).  (EMPHASIS SUPPLIED.)  SINCE THE LABOR BOARD'S EXCELSIOR RULE
WAS TO BE EFFECTIVE ONLY 30 DAYS AFTER ITS PROMULGATION, IT CLEARLY
FALLS WITHIN THE RULE-MAKING REQUIREMENTS OF THE ACT.  /1/ 

NOR CAN I AGREE THAT THE NATURAL INTERPRETATION OF THE STATUTE
SHOULD BE REJECTED BECAUSE IT REQUIRES THE AGENCY TO CHOOSE BETWEEN
GIVING ITS RULES IMMEDIATE EFFECT OR INITIATING A SEPARATE RULE-MAKING
PROCEEDING.  AN AGENCY CHOOSES TO APPLY A RULE PROSPECTIVELY ONLY
BECAUSE IT REPRESENTS SUCH A DEPARTURE FROM PRE-EXISTING UNDERSTANDINGS
THAT IT WOULD BE UNFAIR TO IMPOSE THE RULE UPON THE PARTIES IN PENDING
MATTERS.  BUT IT IS PRECISELY IN THESE SITUATIONS, IN WHICH ESTABLISHED
PATTERNS OF CONDUCT ARE REVOLUTIONIZED, THAT RULE-MAKING PROCEDURES
PERFORM THE VITAL FUNCTIONS THAT MY BROTHER DOUGLAS DESCRIBES SO WELL
IN A DISSENTING OPINION WITH WHICH I BASICALLY AGREE. 

GIVEN THE FACT THAT THE LABOR BOARD HAS PROMULGATED A RULE IN
VIOLATION OF THE GOVERNING STATUTE, I BELIEVE THAT THERE IS NO
ALTERNATIVE BUT TO AFFIRM THE JUDGMENT OF THE COURT OF APPEALS IN THIS
CASE.  IF, AS THE PLURALITY OPINION SUGGESTS, THE NLRB MAY PROPERLY
ENFORCE AN INVALID RULE IN SUBSEQUENT ADJUDICATIONS, THE RULE-MAKING
PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT ARE COMPLETELY
TRIVIALIZED.  UNDER TODAY'S PREVAILING APPROACH, THE AGENCY MAY EVADE
THE COMMANDS OF THE ACT WHENEVER IT DESIRES AND YET COERCE THE
REGULATED INDUSTRY INTO COMPLIANCE.  IT IS NO ANSWER TO SAY THAT
"RESPONDENT WAS UNDER NO COMPULSION TO FURNISH THE LIST BECAUSE NO
STATUTE AND NO VALIDLY ADOPTED RULE REQUIRED IT TO DO SO," ANTE, AT
766, WHEN THE LABOR BOARD WAS THREATENING TO ISSUE A SUBPOENA WHICH THE
COURTS WOULD ENFORCE.  IN WHAT OTHER WAY WOULD THE ADMINISTRATIVE
AGENCY COMPEL OBEDIENCE TO ITS INVALID RULE? 

ONE CANNOT ALWAYS HAVE THE BEST OF BOTH WORLDS.  EITHER THE RULE
MAKING PROVISIONS ARE TO BE ENFORCED OR THEY ARE NOT.  BEFORE THE BOARD
MAY BE PERMITTED TO ADOPT A RULE THAT SO SIGNIFICANTLY ALTERS PRE
EXISTING LABOR-MANAGEMENT UNDERSTANDINGS, IT MUST BE REQUIRED TO
CONDUCT A SATISFACTORY RULE-MAKING PROCEEDING, SO THAT IT WILL HAVE THE
BENEFIT OF WIDE-RANGING ARGUMENT BEFORE IT ENACTS ITS PROPOSED SOLUTION
TO AN IMPORTANT PROBLEM. 

IN REFUSING TO ADOPT THIS POSITION, THE PREVAILING OPINION NOT ONLY
UNDERMINES THE ADMINISTRATIVE PROCEDURE ACT, BUT ALSO COMPROMISES THE
MOST BASIC PRINCIPLES GOVERNING JUDICIAL REVIEW OF AGENCY ACTION
ESTABLISHED IN OUR PAST DECISIONS.  THIS COURT'S LANDMARK OPINION IN
SEC V. CHENERY CORP., 318 U.S. 80, 94 (1943), MAKES IT CLEAR THAT WE
ARE OBLIGED TO REMAND A CASE IF THE AGENCY HAS RELIED UPON AN IMPROPER
REASON TO JUSTIFY ITS ACTION: 

"IF THE ACTION RESTS UPON AN ADMINISTRATIVE DETERMINATION-- AN
EXERCISE OF JUDGMENT IN AN AREA WHICH CONGRESS HAS ENTRUSTED TO THE
AGENCY-- OF COURSE IT MUST NOT BE SET ASIDE BECAUSE THE REVIEWING COURT
MIGHT HAVE MADE A DIFFERENT DETERMINATION WERE IT EMPOWERED TO DO SO.
BUT IF THE ACTION IS BASED UPON A DETERMINATION OF LAW AS TO WHICH THE
REVIEWING AUTHORITY OF THE COURTS DOES COME INTO PLAY, AN ORDER MAY NOT
STAND IF IF THE AGENCY HAS MISCONCEIVED THE LAW.  IN EITHER EVENT THE
ORDERLY FUNCTIONING OF THE PROCESS OF REVIEW REQUIRES THAT THE GROUNDS
UPON WHICH THE ADMINISTRATIVE AGENCY ACTED BE CLEARLY DISCLOSED AND
ADEQUATELY SUSTAINED." 

CHENERY'S TEACHINGS ARE APPLICABLE HERE.  THE REGIONAL OFFICE THAT
ISSUED THE ORDER UNDER REVIEW REFUSED TO CONSIDER THE MERITS OF THE
ARGUMENTS AGAINST THE EXCELSIOR RULE WHICH WERE RAISED BY WYMAN-GORDON
ON THE GROUND THAT THEY HAD BEEN REJECTED BY THE BOARD IN THE EXCELSIOR
CASE ITSELF:     "(IT IS WELL KNOWN THAT EXCELSIOR ISSUED ONLY AFTER
ORAL ARGUMENT AND BRIEFS, INCLUDING AMICUS CURIAE BRIEFS BY INTERESTED
PARTIES.  THE BOARD HAS CONSIDERED ARGUMENTS SUCH AS THOSE MADE HERE
AND NEVERTHELESS ESTABLISHED THE REQUIREMENT EMBODIED IN EXCELSIOR AND
THE UNDERSIGNED (ACTING REGIONAL DIRECTOR) IS BOUND BY IT."  APPENDIX
33. 

THE BOARD DENIED REVIEW OF THIS DECISION ON THE GROUND THAT "IT
RAISES NO SUBSTANTIAL ISSUES WARRANTING REVIEW."  APPENDIX 35. 

SINCE THE MAJOR REASON THE BOARD HAS GIVEN IN SUPPORT OF ITS ORDER
IS INVALID, CHENERY REQUIRES REMAND.  SEE ALSO BELL V. UNITED STATES,
366 U.S. 393, 412-413 (1961); BURLINGTON TRUCK LINES V. UNITED STATES,
371 U.S. 156, 167-168 (1962); CF. PHELPS DODGE CORP. V. NLRB, 313 U.S.
177, 196-197 (1941).  THE PREVAILING OPINION EXPLAINS ITS DEPARTURE
FORM OUR LEADING DECISIONS IN THIS AREA ON THE GROUND THAT:  "THERE IS
NOT THE SLIGHTEST UNCERTAINTY AS TO THE OUTCOME OF (THIS) PROCEEDING"
ON REMAND.  ANTE, N. 6, AT 767.  I CAN PERCEIVE NO JUSTIFICATION
WHATEVER FOR THIS ASSERTION.  SINCE THE EXCELSIOR RULE WAS INVALIDLY
PROMULGATED, IT IS CLEAR THAT, AT A MINIMUM, THE BOARD IS OBLIGED ON
REMAND TO RECANVASS ALL OF THE COMPETING CONSIDERATIONS BEFORE IT MAY
PROPERLY ANNOUNCE ITS DECISION IN THIS CASE.  /2/  WE CANNOT KNOW WHAT
THE OUTCOME OF SUCH A REAPPRAISAL WILL BE.  SURELY, IT CANNOT BE STATED
WITH ANY DEGREE OF CERTAINTY THAT THE BOARD WILL ADOPT PRECISELY THE
SAME SOLUTION AS THE ONE WHICH WAS EMBRACED IN EXCELSIOR.  THE
PLURALITY SIMPLY USURPS THE FUNCTION OF THE NATIONAL LABOR RELATIONS
BOARD WHEN IT SAYS OTHERWISE. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  FOR THE REASONS ADVANCED BY CHIEF JUDGE ALDRICH IN HIS OPINION
BELOW, 397 F.2D 394, I THINK IT CLEAR THAT THE EXCELSIOR RULE INVOLVES
MATTERS OF SUBSTANCE AND NOT PROCEDURE, AND SO DOES NOT FALL WITHIN THE
EXCEPTION CREATED BY 5 U.S.C. 553(B)(A) OF THE ACT. 

/2/  AS I HAVE INDICATED, SUPRA, AT 781, I WOULD GO FURTHER AND
REQUIRE THE BOARD TO INITIATE A NEW RULE-MAKING PROCEEDING WHERE, AS
HERE, IT HAS PREVIOUSLY RECOGNIZED THAT THE PROPOSED NEW RULE SO
DEPARTS FROM PRIOR PRACTICES THAT IT CANNOT FAIRLY BE APPLIED
RETROACTIVELY.  IN THE ABSENCE OF SUCH A PROCEEDING, THE ADMINISTRATIVE
AGENCY MUST BE OBLIGED TO FOLLOW ITS EARLIER DECISIONS WHICH DID NOT
REQUIRE EMPLOYERS TO FURNISH EXCELSIOR LISTS TO UNIONS DURING
ORGANIZING CAMPAIGNS. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR PETITIONER.  WITH
HIM ON THE BRIEF WERE FRANCIS X. BEYTAGH, JR., ARNOLD ORDMAN, DOMINICK
L. MANOLI, AND NORTON J. COME. 

QUENTIN O. YOUNG ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING REVERSAL. 
..END :















DAVIS V. MISSISSIPPI, 394 U.S. 721 


       DAVIS V. MISSISSIPPI. 

        CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI. 

        NO. 645.  ARGUED FEBRUARY 26-27, 1969.-- DECIDED APRIL 22,

           1969. 


IN CONNECTION WITH A RAPE INVESTIGATION THE MERIDIAN, MISSISSIPPI,
POLICE, WITHOUT WARRANTS, BROUGHT NUMEROUS NEGRO YOUTHS TO THE POLICE
STATION FOR QUESTIONING AND FINGERPRINTING.  PETITIONER WAS THUS
QUESTIONED AND FINGERPRINTED, AND RELEASED.  THEREAFTER, CONCEDEDLY
WITHOUT A WARRANT OR PROBABLE CAUSE FOR ARREST, THE POLICE DROVE
PETITIONER TO JACKSON AND CONFINED HIM IN JAIL OVERNIGHT.  AFTER HE WAS
QUESTIONED AND SIGNED A STATEMENT, HE WAS RETURNED TO MERIDIAN AND
JAILED.  WHILE SO CONFINED HE WAS AGAIN FINGERPRINTED AND THESE PRINTS
WERE SENT TO THE FBI FOR COMPARISON WITH LATENT PRINTS FOUND IN THE
VICTIM'S HOME.  THE FINGERPRINT EVIDENCE WAS ADMITTED AT PETITIONER'S
TRIAL FOR RAPE, OVER OBJECTION THAT IT WAS THE PRODUCT OF UNLAWFUL
DETENTION, AND HE WAS CONVICTED.  THE MISSISSIPPI SUPREME COURT UPHELD
THE CONVICTION.  HELD: 

1.  FINGERPRINT EVIDENCE IS NO EXCEPTION TO THE RULE THAT ALL
EVIDENCE OBTAINED BY SEARCHES AND SEIZURES IN VIOLATION OF THE
CONSTITUTION IS INADMISSIBLE IN A STATE COURT.  PP. 723-724. 

2.  THE FOURTH AMENDMENT APPLIES TO INVOLUNTARY DETENTION OCCURRING
AT THE INVESTIGATORY STAGE AS WELL AS AT THE ACCUSATORY STAGE.  PP. 726
727. 

3. DETENTIONS FOR THE SOLE PURPOSE OF OBTAINING FINGERPRINTS ARE
SUBJECT TO THE CONSTRAINTS OF THE FOURTH AMENDMENT.  P. 727. 

4.  IT IS NOT DETERMINED HERE WHETHER FOURTH AMENDMENT REQUIREMENTS
COULD BE MET BY NARROWLY CIRCUMSCRIBED PROCEDURES FOR OBTAINING, DURING
A CRIMINAL INVESTIGATION, FINGERPRINTS OF PERSONS FOR WHOM THERE IS NO
PROBABLE CAUSE TO ARREST, SINCE NO ATTEMPT WAS MADE IN THIS CASE TO
EMPLOY PROCEDURES WHICH MIGHT COMPLY WITH THE FOURTH AMENDMENT.  P.
728. 

204 SO.2D 270, REVERSED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF RAPE AND SENTENCED TO LIFE IMPRISONMENT
BY A JURY IN THE CIRCUIT COURT OF LAUDERDALE COUNTY, MISSISSIPPI.  THE
ONLY ISSUE BEFORE US IS WHETHER FINGERPRINTS OBTAINED FROM PETITIONER
SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE AS THE PRODUCT OF A DETENTION
WHICH WAS ILLEGAL UNDER THE FOURTH AND FOURTEENTH AMENDMENTS. 

THE RAPE OCCURRED ON THE EVENING OF DECEMBER 2, 1965, AT THE
VICTIM'S HOME IN MERIDIAN, MISSISSIPPI.  THE VICTIM COULD GIVE NO
BETTER DESCRIPTION OF HER ASSAILANT THAN THAT HE WAS A NEGRO YOUTH. 
FINGER AND PALM PRINTS FOUND ON THE SILL AND BORDERS OF THE WINDOW
THROUGH WHICH THE ASSAILANT APPARENTLY ENTERED THE VICTIM'S HOME
CONSTITUTED THE ONLY OTHER LEAD AVAILABLE AT THE OUTSET OF THE POLICE
INVESTIGATION.  BEGINNING ON DECEMBER 3, AND FOR A PERIOD OF ABOUT 10
DAYS, THE MERIDIAN POLICE, WITHOUT WARRANTS, TOOK AT LEAST 24 NEGRO
YOUTHS TO POLICE HEADQUARTERS WHERE THEY WERE QUESTIONED BRIEFLY,
FINGERPRINTED, AND THEN RELEASED WITHOUT CHARGE.  THE POLICE ALSO
INTERROGATED 40 OR 50 OTHER NEGRO YOUTHS EITHER AT POLICE HEADQUARTERS,
AT SCHOOL, OR ON THE STREET.  PETITIONER, A 14-YEAR-OLD YOUTH WHO HAD
OCCASIONALLY WORKED FOR THE VICTIM AS A YARDBOY, WAS BROUGHT IN ON
DECEMBER 3 AND RELEASED AFTER BEING FINGERPRINTED AND ROUTINELY
QUESTIONED.  BETWEEN DECEMBER 3 AND DECEMBER 7, HE WAS INTERROGATED BY
THE POLICE ON SEVERAL OCCASIONS-- SOMETIMES IN HIS HOME OR IN A CAR,
OTHER TIMES AT POLICE HEADQUARTERS.  THIS QUESTIONING APPARENTLY
RELATED PRIMARILY TO INVESTIGATION OF OTHER POTENTIAL SUSPECTS. 
SEVERAL TIMES DURING THIS SAME PERIOD PETITIONER WAS EXHIBITED TO THE
VICTIM IN HER HOSPITAL ROOM.  A POLICE OFFICER TESTIFIED THAT THESE
CONFRONTATIONS WERE FOR THE PURPOSE OF SHARPENING THE VICTIM'S
DESCRIPTION OF HER ASSAILANT BY PROVIDING "A GAUGE TO GO BY ON SIZE AND
COLOR."  THE VICTIM DID NOT IDENTIFY PETITIONER AS HER ASSAILANT AT ANY
OF THESE CONFRONTATIONS. 

ON DECEMBER 12, THE POLICE DROVE PETITIONER 90 MILES TO THE CITY OF
JACKSON AND CONFINED HIM OVERNIGHT IN THE JACKSON JAIL.  THE STATE
CONCEDED ON ORAL ARGUMENT IN THIS COURT THAT THERE WAS NEITHER A
WARRANT NOR PROBABLE CAUSE FOR THIS ARREST.  THE NEXT DAY, PETITIONER,
WHO HAD NOT YET BEEN AFFORDED COUNSEL, TOOK A LIE DETECTOR TEST AND
SIGNED A STATEMENT.  STATEMENT.  /1/  HE WAS THEN RETURNED TO AND
CONFINED IN THE MERIDIAN JAIL.  ON DECEMBER 14, WHILE SO CONFINED,
PETITIONER WAS FINGERPRINTED A SECOND TIME.  THAT SAME DAY, THESE
DECEMBER 14 PRINTS, TOGETHER WITH THE FINGERPRINTS OF 23 OTHER NEGRO
YOUTHS APPARENTLY STILL UNDER SUSPICION, WERE SENT TO THE FEDERAL
BUREAU OF INVESTIGATION IN WASHINGTON, D.C., FOR COMPARISON WITH THE
LATENT PRINTS TAKEN FROM THE WINDOW OF THE VICTIM'S HOUSE.  THE FBI
REPORTED THAT PETITIONER'S PRINTS MATCHED THOSE TAKEN FROM THE WINDOW. 
PETITIONER WAS SUBSEQUENTLY INDICTED AND TRIED FOR THE RAPE, AND THE
FINGERPRINT EVIDENCE WAS ADMITTED IN EVIDENCE AT TRIAL OVER
PETITIONER'S TIMELY OBJECTIONS THAT THE FINGERPRINTS SHOULD BE EXCLUDED
AS THE PRODUCT OF AN UNLAWFUL DETENTION.  THE MISSISSIPPI SUPREME COURT
SUSTAINED THE ADMISSION OF THE FINGERPRINT EVIDENCE AND AFFIRMED THE
CONVICTION.  204 SO.2D 270 (1967).  WE GRANTED CERTIORARI.  393 U.S.
821 (1968).  WE REVERSE. 

AT THE OUTSET, WE FIND NO MERIT IN THE SUGGESTION IN THE MISSISSIPPI
SUPREME COURT'S OPINION THAT FINGERPRINT EVIDENCE, BECAUSE OF ITS
TRUSTWORTHINESS, IS NOT SUBJECT TO THE PROSCRIPTIONS OF THE FOURTH AND
FOURTEENTH AMENDMENTS.  /2/  OUR DECISIONS RECOGNIZE NO EXCEPTION TO
THE RULE THAT ILLEGALLY SEIZED EVIDENCE IS INADMISSIBLE AT TRIAL,
HOWEVER RELEVANT AND TRUSTWORTHY THE SEIZED EVIDENCE MAY BE AS AN ITEM
OF PROOF.  THE EXCLUSIONARY RULE WAS FASHIONED AS A SANCTION TO REDRESS
AND DETER OVERREACHING GOVERNMENTAL CONDUCT PROHIBITED BY THE FOURTH
AMENDMENT.  TO MAKE AN EXCEPTION FOR ILLEGALLY SEIZED EVIDENCE WHICH IS
TRUSTWORTHY WOULD FATALLY UNDERMINE THESE PURPOSES.  THUS IN MAPP V.
OHIO, 367 U.S.643, 655 (1961, WE HELD THAT "ALL EVIDENCE OBTAINED BY
SEARCHES AND SEIZURES IN VIOLATION OF THE CONSTITUTION IS, BY THAT SAME
AUTHORITY, INADMISSIBLE IN A STATE COURT."  FINGERPRINT EVIDENCE IS NO
EXCEPTION TO THIS COMPREHENSIVE RULE.  WE AGREE WITH AND ADOPT THE
CONCLUSION OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
IN BYNUM V. UNITED STATES, 104 U.S.APP.D.C. 368, 370, 262 F.2D 465, 467
(1958): 

     "TRUE, FINGERPRINTS CAN BE DISTINGUISHED FROM STATEMENTS GIVEN

  DURING DETENTION.  THEY CAN ALSO BE DISTINGUISHED FROM ARTICLES

  FROM A PRISONER'S POSSESSION.  BOTH SIMILARITIES AND DIFFERENCES

  OF EACH TYPE OF EVIDENCE TO AND FROM THE OTHERS ARE APPARENT. 

  BUT ALL THREE HAVE THE DECISIVE COMMON CHARACTERISTIC OF BEING

  SOMETHING OF EVIDENTIARY VALUE WHICH THE PUBLIC AUTHORITIES HAVE

  CAUSED AN ARRESTED PERSON TO YIELD TO THEM DURING ILLEGAL

  DETENTION.  IF ONE SUCH PRODUCT OF ILLEGAL DETENTION IS

  PROSCRIBED, BY THE SAME TOKEN ALL SHOULD BE PROSCRIBED." 

WE TURN THEN TO THE QUESTION WHETHER THE DETENTION OF PETITIONER
DURING WHICH THE FINGERPRINTS USED AT TRIAL WERE TAKEN CONSTITUTED AN
UNREASONABLE SEIZURE OF HIS PERSON IN VIOLATION OF THE FOURTH
AMENDMENT.  THE OPINION OF THE MISSISSIPPI SUPREME COURT PROCEEDED ON
THE MISTAKEN PREMISE THAT PETITIONER'S PRINTS INTRODUCED AT TRIAL WERE
TAKEN DURING HIS BRIEF DETENTION ON DECEMBER 3.  IN FACT, AS BOTH
PARTIES BEFORE US AGREE, THE FINGERPRINT EVIDENCE USED AT TRIAL WAS
OBTAINED ON DECEMBER 14, WHILE PETITIONER WAS STILL IN DETENTION
FOLLOWING HIS DECEMBER 12 ARREST.  THE LEGALITY OF HIS ARREST WAS NOT
DETERMINED BY THE MISSISSIPPI SUPREME COURT.  HOWEVER, ON ORAL ARGUMENT
HERE, THE STATE CONCEDED THAT THE ARREST ON DECEMBER 12 AND THE ENSUING
DETENTION THROUGH DECEMBER 14 WERE BASED ON NEITHER A WARRANT NOR
PROBABLE CAUSE AND WERE THEREFORE CONSTITUTIONALLY INVALID.  THE STATE
ARGUES, NEVERTHELESS, THAT THIS INVALIDITY SHOULD NOT PREVENT US FROM
AFFIRMING PETITIONER'S CONVICTION.  THE DECEMBER 3 PRINTS WERE VALIDLY
OBTAINED, IT IS ARGUED, AND "IT SHOULD MAKE NO DIFFERENCE IN THE
PRACTICAL OR LEGAL SENSE WHICH (FINGERPRINT) CARD WAS SENT TO THE
F.B.I. FOR COMPARISON."  /3/  IT MAY BE THAT IT DOES MAKE A DIFFERENCE
IN LIGHT OF THE OBJECTIVES OF THE EXCLUSIONARY RULE, SEE BYNUM V.
UNITED STATES, SUPRA, AT 371-372, 262 F. 2D, AT 468-469, /4/ BUT WE
NEED NOT DECIDE THE QUESTION SINCE WE HAVE CONCLUDED THAT THE PRINTS OF
DECEMBER 3 WERE NOT VALIDLY OBTAINED. 

THE STATE MAKES NO CLAIM THAT PETITIONER VOLUNTARILY ACCOMPANIED THE
POLICE OFFICERS TO HEADQUARTERS ON DECEMBER 3 AND WILLINGLY SUBMITTED
TO FINGERPRINTING.  THE STATE'S BRIEF ALSO CANDIDLY ADMITS THAT "(ALL
THAT THE MERIDIAN POLICE COULD POSSIBLY HAVE KNOWN ABOUT PETITIONER AT
THE TIME . . . WOULD NOT AMOUNT TO PROBABLE CAUSE FOR HIS ARREST . . .
"  /5/  THE STATE ARGUES, HOWEVER, THAT THE DECEMBER 3 DETENTION WAS OF
A TYPE WHICH DOES NOT REQUIRE PROBABLE CAUSE.  TWO RATIONALES FOR THIS
POSITION ARE SUGGESTED.  FIRST, IT IS ARGUED THAT THE DETENTION
OCCURRED DURING THE INVESTIGATORY RATHER THAN ACCUSATORY STAGE AND THUS
WAS NOT A SEIZURE REQUIRING PROBABLE CAUSE.  THE SECOND AND RELATED
ARGUMENT IS THAT, AT THE LEAST, DETENTION FOR THE SOLE PURPOSE OF
OBTAINING FINGERPRINTS DOES NOT REQUIRE PROBABLE CAUSE. 

IT IS TRUE THAT AT THE TIME OF THE DECEMBER 3 DETENTION THE POLICE
HAD NO INTENTION OF CHARGING PETITIONER WITH THE CRIME AND WER FAR FROM
MAKING HIM THE PRIMARY FOCUS OF THEIR INVESTIGATION.  BUT TO ARGUE THAT
THE FOURTH AMENDMENT DOES NOT APPLY TO THE INVESTIGATORY STAGE IS
FUNDAMENTALLY TO MISCONCEIVE THE PURPOSES OF THE FOURTH AMENDMENT. 
INVESTIGATORY SEIZURES WOULD SUBJECT UNLIMITED NUMBERS OF INNOCENT
PERSONS TO THE HARASSMENT AND IGNOMINY INCIDENT TO INVOLUNTARY
DETENTION.  NOTHING IS MORE CLEAR THAN THAT THE FOURTH AMENDMENT WAS
MEANT TO PREVENT WHOLESALE INTRUSIONS UPON THE PERSONAL SECURITY OF OUR
CITIZENRY, WHETHER THESE INTRUSIONS BE TERMED "ARRESTS" OR
"INVESTIGATORY DETENTIONS."  /6/  WE MADE THIS EXPLICIT ONLY LAST TERM
IN TERRY V. OHIO, 392 U.S. 1, 19 (1968), WHEN WE REJECTED "THE NOTIONS
THAT THE FOURTH AMENDMENT DOES NOT COME INTO PLAY AT ALL AS A
LIMITATION UPON POLICE CONDUCT IF THE OFFICERS STOP SHORT OF SOMETHING
CALLED A 'TECHNICAL ARREST' OR A 'FULL-BLOWN SEARCH.'" 

DETENTIONS FOR THE SOLE PURPOSE OF OBTAINING FINGERPRINTS ARE NO
LESS SUBJECT TO THE CONSTRAINTS OF THE FOURTH AMENDMENT.  IT IS
ARGUABLE, HOWEVER, THAT, BECAUSE OF THE UNIQUE NATURE OF THE
FINGERPRINTING PROCESS, SUCH DETENTIONS MIGHT, UNDER NARROWLY DEFINED
CIRCUMSTANCES, BE FOUND TO COMPLY WITH THE FOURTH AMENDMENT EVEN THOUGH
THERE IS NO PROBABLE CAUSE IN THE TRADITIONAL SENSE.  SEE CAMARA V.
MUNICIPAL COURT, 387 U.S. 523 (1967).  DETENTION FOR FINGERPRINTING MAY
CONSTITUTE A MUCH LESS SERIOUS INTRUSION UPON PERSONAL SECURITY THAN
OTHER TYPES OF POLICE SEARCHES AND DETENTIONS.  FINGERPRINTING INVOLVES
NONE OF THE PROBING INTO AN INDIVIDUAL'S PRIVATE LIFE AND THOUGHTS THAT
MARKS AN INTERROGATION OR SEARCH.  NOR CAN FINGERPRINT DETENTION BE
EMPLOYED REPEATEDLY TO HARASS ANY INDIVIDUAL, SINCE THE POLICE NEED
ONLY ONE SET OF EACH PERSON'S PRINTS.  FURTHERMORE, FINGERPRINTING IS
AN INHERENTLY MORE RELIABLE AND EFFECTIVE CRIME-SOLVING TOOL THAN
EYEWITNESS IDENTIFICATIONS OR CONFESSIONS AND IS NOT SUBJECT TO SUCH
ABUSES AS THE IMPROPER LINE-UP AND THE "THIRD DEGREE."  FINALLY,
BECAUSE THERE IS NO DANGER OF DESTRUCTION OF FINGERPRINTS, THE LIMITED
DETENTION NEED NOT COME UNEXPECTEDLY OT AT AN INCONVENIENT TIME.  FOR
THIS SAME REASONS, THE GENERAL REQUIREMENT THAT THE AUTHORIZATION OF A
JUDICIAL OFFICER BE OBTAINED IN ADVANCE OF DETENTION WOULD SEEM NOT TO
ADMIT OF ANY EXCEPTION IN THE FINGERPRINTING CONTEXT.  WE HAVE NO
OCCASION IN THIS CASE, HOWEVER, TO DETERMINE WHETHER THE REQUIREMENTS
OF THE FOURTH AMENDMENT COULD BE MET BY NARROWLY CIRCUMSCRIBED
PROCEDURES FOR OBTAINING, DURING THE COURSE OF A CRIMINAL
INVESTIGATION, THE FINGERPRINTS OF INDIVIDUALS FOR WHOM THERE IS NOT
PROBABLE CAUSE TO ARREST.  FOR IT IS CLEAR THAT NO ATTEMPT WAS MADE
HERE TO EMPLOY PROCEDURES WHICH MIGHT COMPLY WITH THE REQUIREMENTS OF
THE FOURTH AMENDMENT:  THE DETENTION AT POLICE HEADQUARTERS OF
PETITIONER AND THE OTHER YOUNG NEGROES WAS NOT AUTHORIZED BY A JUDICIAL
OFFICER; PETITIONER WAS UNNECESSARILY REQUIRED TO UNDERGO TWO
FINGERPRINTING SESSIONS; AND PETITIONER WAS NOT MERELY FINGERPRINTED
DURING THE DECEMBER 3 DETENTION BUT ALSO SUBJECTED TO INTERROGATION. 
THE JUDGMENT OF THE MISSISSIPPI SUPREME COURT IS THEREFORE

              REVERSED. 

/1/  THE STATEMENT WAS NOT INTRODUCED AT THE TRIAL. 

/2/  FINGERPRINT EVIDENCE WOULD SEEM NO MORE "TRUSTWORTHY" THAN
OTHER TYPES OF EVIDENCE-- SUCH AS GUNS, NARCOTICS, GAMBLING EQUIPMENT--
WHICH ARE ROUTINELY EXCLUDED IF ILLEGALLY OBTAINED. 

/3/  BRIEF FOR RESPONDENT 8. 

/4/  THE GOVERNMENT ARGUED IN BYNUM THAT THE CONTROVERSY OVER THE
INTRODUCTION IN EVIDENCE OF A PARTICULAR SET OF FINGERPRINTS WAS "MUCH
ADO OVER VERY LITTLE," BECAUSE ANOTHER SET PROPERLY TAKEN WAS AVAILABLE
AND MIGHT HAVE BEEN USED.  THE COURT OF APPEALS REJECTED THIS ARGUMENT:
"IT BEARS REPEATING THAT THE MATTER OF PRIMARY JUDICIAL CONCERN IN ALL
CASES OF THIS TYPE IS THE IMPOSITION OF EFFECTIVE SANCTIONS
IMPLEMENTING THE FOURTH AMENDMENT GUARANTEE AGAINST ILLEGAL ARREST AND
DETENTION.  NEITHER THE FACT THAT THE EVIDENCE OBTAINED THROUGH SUCH
DETENTION IS ITSELF TRUSTWORTHY OR THE FACT THAT EQUIVALENT EVIDENCE
CAN CONVENIENTLY BE OBTAINED IN A WHOLLY PROPER WAY MILITATES AGAINST
THIS OVERRIDING CONSIDERATION.  IT IS ENTIRELY IRRELEVANT THAT IT MAY
BE RELATIVELY EASY FOR THE GOVERNMENT TO PROVE GUILT WITHOUT USING THE
PRODUCT OF ILLEGAL DETENTION.  THE IMPORTANT THING IS THAT THOSE
ADMINISTERING THE CRIMINAL LAW UNDERSTAND THAT THEY MUST DO IT THAT
WAY."  104 U.S. APP. D.C., AT 371-372, 262 F. 2D, AT 468-469.  ON
BYNUM'S RETRIAL ANOTHER SET OF FINGERPRINTS IN NO WAY CONNECTED WITH
HIS UNLAWFUL ARREST WAS USED, AND HE WAS AGAIN CONVICTED.  THE COURT OF
APPEALS AFFIRMED THIS CONVICTION.  107 U.S.APP.D.C. 109, 274 F.2D 767
(1960). 

/5/  BRIEF FOR RESPONDENT 3. 

/6/  THE STATE RELIES ON VARIOUS STATEMENTS IN OUR CASES WHICH
APPROVE GENERAL QUESTIONING OF CITIZENS IN THE COURSE OF INVESTIGATING
A CRIME.  SEE MIRANDA V. ARIZONA, 384 U.S. 436, 477-478 (1966); CULOMBE
V. CONNECTICUT, 367 U.S. 568, 635 (CONCURRING OPINION) (1961).  BUT
THESE STATEMENTS MERELY REITERATED THE SETTLED PRINCIPLE THAT WHILE THE
POLICE HAVE THE RIGHT TO REQUEST CITIZENS TO ANSWER VOLUNTARILY
QUESTIONS CONCERNING UNSOLVED CRIMES THEY HAVE NO RIGHT TO COMPEL THEM
TO ANSWER. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE OPINION OF THE COURT, WITH ONE RESERVATION.  THE COURT
STATES IN DICTUM THAT, BECAUSE FINGERPRINTING MAY BE SCHEDULED FOR A
TIME CONVENIENT TO THE CITIZEN, "THE GENERAL REQUIREMENT THAT THE
AUTHORIZATION OF A JUDICIAL OFFICER BE OBTAINED IN ADVANCE OF DETENTION
WOULD SEEM NOT TO ADMIT OF ANY EXCEPTION IN THE FINGERPRINTING
CONTEXT."  ANTE, THIS PAGE.  I CANNOT CONCUR IN SO SWEEPING A
PROPOSITION.  THERE MAY BE CIRCUMSTANCES, FALLING SHORT OF THE
"DRAGNET" PROCEDURES EMPLOYED IN THIS CASE, WHERE COMPELLED SUBMISSION
TO FINGERPRINTING WOULD NOT AMOUNT TO A VIOLATION OF THE FOURTH
AMENDMENT EVEN IN THE ABSENCE OF A WARRANT, AND I WOULD LEAVE THAT
QUESTION OPEN.     MR. JUSTICE BLACK, DISSENTING. 

THE PETITIONER HERE WAS CONVICTED OF A BRUTAL RAPE OF A WOMAN,
COMMITTED IN HER OWN HOME.  FINGERPRINTS OF THE PETITIONER, LEFT ON THE
WINDOW SILL OF HER HOME WERE THE CLINCHING EVIDENCE BRINGING ABOUT
PETITIONER'S CONVICTION.  THE COURT, BY ONCE MORE EXPANDING THE REACH
OF THE JUDICIALLY DECLARED EXCLUSIONARY RUL, OSTENSIBLY RESTING ON THE
FOURTH AMENDMENT, HOLDS THE FINGERPRINT EVIDENCE CONSTITUTIONALLY
INADMISSIBLE AND THEREBY REVERSES PETITIONER'S CONVICTION.  THE RAPE
OCCURRED ON DECEMBER 2, 1965, AND, AS WAS THEIR DUTY, THE POLICE
AUTHORITIES BEGAN TO MAKE A SEARCHING INVESTIGATION THE MORNING OF
DECEMBER 3.  THE RAPED WOMAN WAS ORIGINALLY ABLE TO DESCRIBE THE RAPIST
ONLY AS A YOUNG NEGRO MALE.  WITH THIS EVIDENCE THE POLICE PROCEEDED TO
INTERROGATE A NUMBER OF YOUNG NEGROES ON THE STREETS, AT THEIR HOMES,
OR AT THE POLICE STATION, AND THEN PERMITTED THEM TO GO ON THEIR WAY. 
THE PETITIONER WAS AMONG THOSE SO INTERROGATED ON DECEMBER 3, AT WHICH
TIME HIS FINGERPRINTS WERE MADE.  THE FINGERPRINTS WERE AGAIN TAKEN ON
DECEMBER 14.  THE RECORD DOES NOT SHOW THAT PETITIONER OR ANY OTHER
YOUNG MAN WHO WAS QUESTIONED AND FINGERPRINTED EVER MADE THE SLIGHTEST
OBJECTION.  APPARENTLY ALL OF THEM COOPERATED WITH THE POLICE IN
EFFORTS TO FIND OUT WHO HAD COMMITTED THE RAPE.  THIS CASE IS BUT ONE
MORE IN AN EVER-EXPANDING LIST OF CASES IN WHICH THIS COURT HAS BEEN SO
WIDELY BLOWING UP THE FOURTH AMENDMENT'S SCOPE THAT ITS ORIGINAL
AUTHORS WOULD BE HARD PUT TO RECOGNIZE THEIR CREATION.  /1/  FOR THIS
MOST UNNECESSARY EXPANSION OF THE AMENDMENT, THE COURT IS COMPELLED TO
PUT ITS CHIEF RELIANCE ON A COURT OF APPEALS DECISION.  BYNUM V. UNITED
STATES, 104 U.S.APP.D.C. 368, 262 F.2D 465.  I THINK IT IS HIGH TIME
THIS COURT, IN THE INTEREST OF THE ADMINISTRATION OF CRIMINAL JUSTICE,
MADE A NEW APPRAISAL OF THE LANGUAGE AND HISTORY OF THE FOURTH
AMENDMENT AND CUT IT DOWN TO ITS INTENDED SIZE.  SUCH A JUDICIAL ACTION
WOULD, I BELIEVE, MAKE OUR CITIES A SAFER PLACE FOR MEN, WOMEN, AND
CHILDREN TO LIVE. 

I DISSENT FROM THIS REVERSAL. 

/1/  SEE, E.G., BUMPER V. NORTH CAROLINA, 391 U.S. 543-- ANOTHER
RAPE CASE; SPINELLI V. UNITED STATES, 393 U.S. 410; AGUILAR V. TEXAS,
378 U.S. 108; RECZNIK V. CITY OF LORAIN, 393 U.S. 166; AND GRISWOLD V.
CONNECTICUT, 381 U.S. 479. 

MR. JUSTICE STEWART, DISSENTING. 

I DO NOT DISAGREE WITH THE COURT'S CONCLUSION THAT THE PETITIONER
WAS ARRESTED AND DETAINED WITHOUT PROBABLE CAUSE.  BUT IT DOES NOT
FOLLOW THAT HIS FINGERPRINTS WERE INADMISSIBLE AT THE TRIAL. 

FINGERPRINTS ARE NOT "EVIDENCE" IN THE CONVENTIONAL SENSE THAT
WEAPONS OR STOLEN GOODS MIGHT BE.  LIKE THE COLOR OF A MAN'S EYES, HIS
HEIGHT, OR HIS VERY PHYSIOGNOMY, THE TIPS OF HIS FINGERS ARE AN
INHERENT AND UNCHANGING CHARACTERISTIC OF THE MAN.  AND PHYSICAL
IMPRESSIONS OF HIS FINGERTIPS CAN BE EXACTLY AND ENDLESSLY REPRODUCED. 

WE DO NOT DEAL HERE WITH A CONFESSION WRONGFULLY OBTAINED OR WITH
PROPERTY WRONGFULLY SEIZED-- SO TAINTED AS TO BE FOREVER INADMISSIBLE
AS EVIDENCE AGAINST A DEFENDANT.  WE DEAL, INSTEAD, WITH "EVIDENCE"
THAT CAN BE IDENTICALLY REPRODUCED AND LAWFULLY USED AT ANY SUBSEQUENT
TRIAL.  /1/ 

I CANNOT BELIEVE THAT THE DOCTRINE OF MAPP V. OHIO, 367 U.S. 643,
REQUIRES SO USELESS A GESTURE AS THE REVERSAL OF THIS CONVICTION. 

/1/  AT THE ORIGINAL TRIAL THE VICTIM OF THE RAPE, UNDER OATH,
POSITIVELY IDENTIFIED THE PETITIONER AS HER ASSAILANT.  THERE NOW
EXISTS, THEREFORE, AMPLE PROBABLE CAUSE TO DETAIN HIM AND TAKE HIS
FINGERPRINTS. 

MELVYN ZARR ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF
WERE JACK GREENBERG, MICHAEL MELTSNER, ANTHONY G. AMSTERDAM, AND JACK
YOUNG. 

G. GARLAND LYELL, JR., ASSISTANT ATTORNEY GENERAL OF MISSISSIPPI,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS JOE T.
PATTERSON, ATTORNEY GENERAL. 
..END :










FRAZIER V. CUPP, 394 U.S. 731 


       FRAZIER V. CUPP, WARDEN. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 643.  ARGUED FEBRUARY 26, 1969.-- DECIDED APRIL 22,

           1969. 


PETITIONER IN THIS HABEAS CORPUS PROCEEDING CLAIMS THAT HIS
CONSTITUTIONAL RIGHTS WERE VIOLATED IN THREE RESPECTS IN HIS TRIAL IN
1965 FOR MURDER FOR WHICH HE HAD BEEN INDICTED JOINTLY WITH ONE RAWLS,
WHO PLEADED GUILTY.  (1) THE PROSECUTOR, ON THE BASIS OF PREVIOUS
INFORMATION HE HAD RECEIVED THAT RAWLS WOULD TESTIFY, INCLUDED IN HIS
OPENING STATEMENT A BRIEF SUMMARY OF RAWLS' EXPECTED TESTIMONY.  WHEN
RAWLS WAS CALLED TO THE STAND HE CLAIMED HIS PRIVILEGE AGAINST SELF
INCRIMINATION AND WAS DISMISSED.  PETITIONER'S MOTIONS FOR A MISTRIAL
WERE OVERRULED.  THE TRIAL COURT INSTRUCTED THE JURY THAT THE OPENING
STATEMENTS OF COUNSEL SHOULD NOT BE CONSIDERED AS EVIDENCE.  (2) AFTER
PRELIMINARY QUESTIONING SHORTLY AFTER HIS ARREST PETITIONER WAS TOLD
THAT HE COULD HAVE AN ATTORNEY IF HE WANTED ONE AND THAT ANYTHING HE
SAID COULD BE USED AGAINST HIM AT TRIAL.  THEREAFTER THE INTERROGATING
OFFICER FALSELY TOLD PETITIONER, WHO WAS RELUCTANT TO TALK, THAT RAWLS
HAD CONFESSED.  PETITIONER LATER BEGAN TO SPILL HIS STORY, BUT AGAIN
SHOWED SIGNS OF RELUCTANCE AND SAID HE THOUGHT HE BETTER GET A LAWYER
BEFORE HE TALKED ANY MORE.  FOLLOWING THE OFFICER'S REPLY THAT
PETITIONER COULD NOT BE IN ANY MORE TROUBLE THAN HE WAS IN, PETITIONER
FULLY CONFESSED AND AFTER FURTHER WARNINGS SIGNED A WRITTEN CONFESSION,
WHICH WAS LATER ADMITTED INTO EVIDENCE OVER PETITIONER'S OBJECTION. 
(3) ALSO ADMITTED INTO EVIDENCE WAS SOME CLOTHING WHICH OFFICERS HAD
SEIZED FROM PETITIONER'S DUFFEL BAG WHICH HE AND RAWLS HAD USED JOINTLY
AND WHICH THE OFFICERS HAD FOUND DURING A SEARCH CONDUCTED WITH RAWLS'
CONSENT.  PETITIONER WAS CONVICTED AND THE STATE SUPREME COURT
AFFIRMED.  PETITIONER THEREAFTER FILED A PETITION FOR A WRIT OF HABEAS
CORPUS IN THE DISTRICT COURT, WHICH GRANTED THE WRIT.  THE COURT OF
APPEALS REVERSED.  PETITIONER CLAIMS THAT THE PROSECUTOR'S USE OF THE
SUMMARIZED RAWLS STATEMENT DENIED HIM HIS CONSTITUTIONAL RIGHTS OF
CONFRONTATION AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS;
THAT HIS CONFESSION CONTRAVENED THE PRINCIPLES ESTABLISHED BY ESCOBEDO
V. ILLINOIS, 378 U.S. 478 (1964), AND MIRANDA V. ARIZONA, 384 U.S. 436
(1966), AND WAS INVOLUNTARY; AND THAT THE CLOTHING HAD BEEN ILLEGALLY
SEIZED IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS.  HELD: 

1.  ON THE FACTS HERE, WHERE THE EVIDENCE WHICH THE PROSECUTOR
REASONABLY EXPECTED TO PRODUCE WAS OBJECTIVELY AND BRIEFLY SUMMARIZED
AND WAS NOT TOUTED TO THE JURY AS CRUCIAL TO THE PROSECUTION'S CASE,
THE COURT'S LIMITING INSTRUCTIONS WERE SUFFICIENT TO PROTECT
PETITIONER'S CONSTITUTIONAL RIGHTS.  DOUGLAS V. ALABAMA, 380 U.S. 415
(1965), AND BRUTON V. UNITED STATES, 391 U.S. 123 (1968),
DISTINGUISHED.  PP. 734-737. 

2.  IN THE CONTEXT OF THIS CASE, WHERE IT IS POSSIBLE THAT THE
QUESTIONING OFFICER TOOK PETITIONER'S REMARK ABOUT SEEING AN ATTORNEY
NOT AS A REQUEST THAT THE INTERROGATION CEASE BUT AS A PASSING COMMENT,
THERE WAS NO DENIAL OF THE RIGHT TO COUNSEL SUCH AS EXISTED IN
ESCOBEDO; AND MIRANDA, WHICH WAS DECIDED AFTER PETITIONER'S TRIAL, IS
INAPPLICABLE UNDER JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966).  PP. 738
739. 

3.  ON THE FACTS OF THIS CASE AND IN VIEW OF THE "TOTALITY OF THE
CIRCUMSTANCES" THE TRIAL COURT DID NOT ERR IN HOLDING THAT PETITIONER'S
CONFESSION WAS VOLUNTARY.  P. 739. 

4.  THE CLOTHING FROM PETITIONER'S DUFFEL BAG WAS FOUND IN THE
COURSE OF A LAWFUL SEARCH SINCE RAWLS, A JOINT USER OF THE BAG, HAD
AUTHORITY TO CONSENT TO ITS SEARCH.  P. 740. 

388 F.2D 777, AFFIRMED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED IN AN OREGON STATE COURT OF SECOND-DEGREE
MURDER IN CONNECTION WITH THE SEPTEMBER 22, 1964, SLAYING OF ONE
RUSSELL ANTON MARLEAU.  AFTER THE SUPREME COURT OF OREGON HAD AFFIRMED
HIS CONVICTION, 245 ORE.  4, 418 P.2D 841 (1966), PETITIONER FILED A
PETITION FOR A WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF OREGON.  THE DISTRICT COURT GRANTED THE WRIT,
BUT THE COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED, 388 F.2D 777
(1968).  WE GRANTED CERTIORARI TO CONSIDER THREE CONTENTIONS OF ERROR
RAISED BY PETITIONER.  393 U.S. 821 (1968).  ALTHOUGH PETITIONER'S CASE
HAS BEEN ABLY BRIEFED AND ARGUED BY APPOINTED COUNSEL, WE FIND NONE OF
THESE ALLEGATIONS SUFFICIENT TO WARRANT REVERSAL. 

 I. 

PETITIONER'S FIRST ARGUMENT CENTERS ON CERTAIN ALLEGEDLY PREJUDICIAL
REMARKS MADE DURING THE PROSECUTOR'S OPENING STATEMENT.  PETITIONER HAD
BEEN INDICTED JOINTLY WITH HIS COUSIN, JERRY LEE RAWLS, WHO PLEADED
GUILTY TO THE SAME OFFENSE.  PRIOR TO PETITIONER'S TRIAL, PETITIONER'S
DEFENSE COUNSEL TOLD THE PROSECUTOR THAT RAWLS WOULD INVOKE HIS
PRIVILEGE AGAINST SELF-INCRIMINATION IF HE WERE CALLED TO THE STAND;
DEFENSE COUNSEL WARNED THE PROSECUTOR NOT TO RELY IN HIS OPENING
STATEMENT UPON RAWLS' EXPECTED TESTIMONY.  THE PROSECUTOR REPLIED THAT
HE WOULD ACT ON THE BASIS OF "ALL OF THE INFORMATION I HAVE CONCERNING
(RAWLS') TESTIMONY."  BEFORE TRIAL, HE CONSULTED WITH A POLICE OFFICER
WHO HAD SPOKEN TO RAWLS AND WITH RAWLS' PROBATION OFFICER; EACH
INDICATED HIS BELIEF THAT RAWLS WOULD TESTIFY.  SIMILAR INFORMATION
CAME, THROUGH A SHERIFF'S REPORT, FROM SOME OF RAWLS' CLOSE RELATIVES. 
BECAUSE OF THESE REPORTS, THE PROSECUTOR CONCLUDED THAT RAWLS WOULD
TESTIFY IF ASKED TO DO SO.  THE COURT BELOW FELT THAT THE PROSECUTOR
ALSO RELIED ON THE FACT THAT RAWLS HAD PLEADED GUILTY AND WAS AWAITING
SENTENCE.  THIS WOULD GIVE HIM REASON, THE COURT FELT, TO COOPERATE
WITH THE PROSECUTOR. 

IN ANY CASE, AFTER THE TRIAL BEGAN THE PROSECUTOR INCLUDED IN HIS
OPENING STATEMENT A SUMMARY OF THE TESTIMONY HE EXPECTED TO RECEIVE
FROM RAWLS.  THE SUMMARY WAS NOT EMPHASIZED IN ANY PARTICULAR WAY; IT
TOOK ONLY A FEW MINUTES TO RECITE AND WAS SANDWICHED BETWEEN A SUMMARY
OF PETITIONER'S OWN CONFESSION AND A DESCRIPTION OF THE CIRCUMSTANTIAL
EVIDENCE THE STATE WOULD INTRODUCE.  AT ONE POINT THE PROSECUTOR
REFERRED TO A PAPER HE WAS HOLDING IN HIS HANDS TO REFRESH HIS MEMORY
ABOUT SOMETHING RAWLS HAD SAID.  ALTHOUGH THE STATE ADMITTED IN
ARGUMENT HERE THAT THE JURY MIGHT FAIRLY HAVE BELIEVED THAT THE
PROSECUTOR WAS REFERRING TO RAWLS' STATEMENT, HE DID NOT EXPLICITLY
TELL THE JURY THAT THIS PAPER WAS RAWLS' CONFESSION, NOR DID HE PURPORT
TO READ DIRECTLY FROM IT.  A MOTION FOR A MISTRIAL WAS MADE AT THE
CLOSE OF THE OPENING STATEMENT, BUT IT WAS DENIED.  LATER, THE
PROSECUTOR CALLED RAWLS TO THE STAND.  RAWLS INFORMED THE COURT THAT HE
INTENDED TO ASSERT HIS PRIVILEGE AGAINST SELF-INCRIMINATION IN REGARD
TO EVERY QUESTION CONCERNING HIS ACTIVITIES ON THE MORNING OF SEPTEMBER
22, 1964.  THE MATTER WAS NOT FURTHER PURSUED, AND RAWLS WAS DISMISSED
FROM THE STAND.  HIS APPEARANCE COULD NOT HAVE LASTED MORE THAN TWO OR
THREE MINUTES.  THE MOTION FOR MISTRIAL WAS RENEWED AND ONCE AGAIN
DENIED. 

PETITIONER ARGUES THAT THIS SERIES OF EVENTS PLACED THE SUBSTANCE OF
RAWLS' STATEMENT BEFORE THE JURY IN A WAY THAT "MAY WELL HAVE BEEN THE
EQUIVALENT IN THE JURY'S MIND OF TESTIMONY," DOUGLAS V. ALABAMA, 380
U.S. 415, 419 (1965), AND THAT, AS IN BRUTON V. UNITED STATES, 391 U.S.
123, 128 (1968), THE STATEMENT "ADDED SUBSTANTIAL, PERHAPS EVEN
CRITICAL, WEIGHT TO THE GOVERNMENT'S CASE IN A FORM NOT SUBJECT TO
CROSS-EXAMINATION . . . "  IN THIS WAY, PETITIONER CLAIMS HE WAS DENIED
HIS CONSTITUTIONAL RIGHT OF CONFRONTATION, GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE CONSTITUTION.  SEE POINTER V. TEXAS, 380
U.S. 400 (1965).  ALTHOUGH THE JUDGE DID CAUTION THE JURORS THAT THEY
"MUST NOT REGARD ANY STATMENT MADE BY COUNSEL IN YOUR PRESENCE DURING
THE PROCEEDING CONCERNING THE FACTS OF THIS CASE AS EVIDENCE,"
PETITIONER CONTENDS THAT BRUTON V. UNITED STATES, SUPRA, DISPOSES OF
THE CONTENTION THAT LIMITING INSTRUCTIONS OF THIS SORT CAN BE RELIED
UPON TO CURE THE ERROR WHICH OCCURRED.  ALTHOUGH THE QUESTION THUS
POSED IS NOT AN EASY ONE, WE CANNOT AGREE WITH PETITIONER'S
CONCLUSION. 

FIRST OF ALL, IT SI CLEAR THAT THIS CASE IS QUITE DIFFERENT FROM
EITHER DOUGLAS OR BRUTON.  IN DOUGLAS, THE PROSECUTOR CALLED THE
DEFENDANT'S COCONSPIRATOR TO THE STAND AND READ HIS ALLEGED CONFESSION
TO HIM; THE COCONSPIRATOR WAS REQUIRED TO ASSERT HIS PRIVILEGE AGAINST
SELF-INCRIMINATION REPEATEDLY AS THE PROSECUTOR ASKED HIM TO CONFIRM OR
DENY EACH STATEMENT.  THE COURT FOUND THAT THIS PROCEDURE PLACED
POWERFULLY INCRIMINATING EVIDENCE BEFORE THE JURY IN A MANNER WHICH
EFFECTIVELY DENIED THE RIGHT OF CROSS-EXAMINATION.  HERE, RAWLS WAS ON
THE STAND FOR A VERY SHORT TIME AND ONLY A PARAPHRASE OF THE STATEMENT
WAS PLACED BEFORE THE JURY.  THIS WAS DONE NOT DURING THE TRIAL, WHILE
THE PERSON MAKING THE STATEMENT WAS ON THE STAND, BUT IN AN OPENING
STATEMENT.  IN ADDITION, THE JURY WAS TOLD THAT THE OPENING STATEMENT
SHOULD NOT BE CONSIDERED AS EVIDENCE.  CERTAINLY THE IMPACT OF THE
PROCEDURE USED HERE WAS MUCH LESS DAMAGING THAN WAS THE CASE IN
DOUGLAS.  AND UNLIKE THE SITUATION IN BRUTON, THE JURY WAS NOT BEING
ASKED TO PERFORM THE MENTAL GYMNASTICS OF CONSIDERING AN INCRIMINATING
STATEMENT AGAINST ONLY ONE OF TWO DEFENDANTS IN A JOINT TRIAL. 
MOREOVER, UNLIKE THE SITUATION IN EITHER DOUGLAS OR BRUTON, RAWLS'
STATEMENT WAS NOT A VITALLY IMPORTANT PART OF THE PROSECUTION'S CASE. 

WE BELIEVE THAT IN THESE CIRCUMSTANCES THE LIMITING INSTRUCTIONS
GIVEN WERE SUFFICIENT TO PROTECT PETITIONER'S CONSTITUTIONAL RIGHTS. 
/1/  AS THE COURT SAID IN BRUTON, 391 U.S., AT 135, "NOT EVERY
ADMISSION OF INADMISSIBLE HEARSAY OR OTHER EVIDENCE CAN BE CONSIDERED
TO BE REVERSIBLE ERROR UNAVOIDABLE THROUGH LIMITING INSTRUCTIONS;
INSTANCES OCCUR IN ALMOST EVERY TRIAL WHERE INADMISSIBLE EVIDENCE
CREEPS IN, USUALLY INADVERTENTLY."  SEE HOPT V. UTAH, 120 U.S. 430, 438
(1887). 

IT MAY BE THAT SOME REMARKS INCLUDED IN AN OPENING OR CLOSING
STATEMENT COULD BE SO PREJUDICIAL THAT A FINDING OF ERROR, OR EVEN
CONSTITUTIONAL ERROR, WOULD BE UNAVOIDABLE.  BUT HERE WE HAVE NO MORE
THAN AN OBJECTIVE SUMMARY OF EVIDENCE WHICH THE PROSECUTOR REASONABLY
EXPECTED TO PRODUCE.  MANY THINGS MIGHT HAPPEN DURING THE COURSE OF THE
TRIAL WHICH WOULD PREVENT THE PRESENTATION OF ALL THE EVIDENCE
DESCRIBED IN ADVANCE.  CERTAINLY NOT EVERY VARIANCE BETWEEN THE ADVANCE
DESCRIPTION AND THE ACTUAL PRESENTATION CONSTITUTES REVERSIBLE ERROR,
WHEN A PROPER LIMITING INSTRUCTION HAS BEEN GIVEN.  EVEN IF IT IS
UNREASONABLE TO ASSUME THAT A JURY CAN DISREGARD A COCONSPIRATOR'S
STATEMENT WHEN INTRODUCED AGAINST ONE OF TWO JOINT DEFENDANTS, IT DOES
NOT SEEM AT ALL REMARKABLE TO ASSUME THAT THE JURY WILL ORDINARILY BE
ABLE TO LIMIT ITS CONSIDERATION TO THE EVIDENCE INTRODUCED DURING THE
TRIAL.  AT LEAST WHERE THE ANTICIPATED, AND UNPRODUCED, EVIDENCE IS NOT
TOUTED TO THE JURY AS A CRUCIAL PART OF THE PROSECUTION'S CASE, "IT IS
HARD FOR US TO IMAGINE THAT THE MINDS OF THE JURORS WOULD BE SO
INFLUENCED BY SUCH INCIDENTAL STATEMENTS DURING THIS LONG TRIAL THAT
THEY WOULD NOT APPRAISE THE EVIDENCE OBJECTIVELY AND DISPASSIONATELY." 
UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 239 (1940). 

THE COURT OF APPEALS SEEMED TO FEEL THAT THIS ASPECT OF THE CASE
TURNED ON WHETHER OR NOT THE PROSECUTOR ACTED "IN A GOOD FAITH
EXPECTATION THAT RAWLS WOULD TESTIFY."  388 F. 2D, AT 780-781.  WHILE
WE DO NOT BELIEVE THAT THE PROSECUTOR'S GOOD FAITH, OR LACK OF IT, IS
CONTROLLING IN DETERMINING WHETHER A DEFENDANT HAS BEEN DEPRIVED OF THE
RIGHT OF CONFRONTATION GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS, WE AGREE WITH THE COURT OF APPEALS' FACTUAL DETERMINATION
IN THIS CASE.  THE EVIDENCE PRESENTED IN THE RECORD IS SUFFICIENT TO
SUPPORT THE OREGON SUPREME COURT'S CONCLUSION THAT "THE STATE COULD
REASONABLY EXPECT (RAWLS) TO TESTIFY IN LINE WITH HIS PREVIOUS
STATEMENTS."  245 ORE., AT 9, 418 P. 2D, AT 843.  ACCORDINGLY, THERE IS
NO NEED TO DECIDE WHETHER THE TYPE OF PROSECUTORIAL MISCONDUCT ALLEGED
TO HAVE OCCURRED WOULD HAVE BEEN SUFFICIENT TO CONSTITUTE REVERSIBLE
CONSTITUTIONAL ERROR.  CF. MILLER V. PATE, 386 U.S. 1 (1967). 
THEREFORE, BECAUSE WE FIND NEITHER PROSECUTORIAL MISCONDUCT NOR A
DEPRIVATION OF THE RIGHT OF CONFRONTATION, WE AGREE WITH THE COURT OF
APPEALS THAT NOTHING WHICH OCCURRED DURING THE PROSECUTION'S OPENING
STATEMENT WOULD WARRANT FEDERAL HABEAS RELIEF. 

       II. 

PETITIONER'S SECOND ARGUMENT CONCERNS THE ADMISSION INTO EVIDENCE OF
HIS OWN CONFESSION.  THE CIRCUMSTANCES UNDER WHICH THE CONFESSION WAS
OBTAINED CAN BE SUMMARIZED BRIEFLY.  PETITIONER WAS ARRESTED ABOUT 4:15
P.M. ON SEPTEMBER 24, 1964.  HE WAS TAKEN TO HEADQUARTERS WHERE
QUESTIONING BEGAN AT ABOUT 5 P.M.  THE INTERROGATION, WHICH WAS TAPE
RECORDED, ENDED SLIGHTLY MORE THAN AN HOUR LATER, AND BY 6:45 P.M.
PETITIONER HAD SIGNED A WRITTEN VERSION OF HIS CONFESSION. 

AFTER THE QUESTIONING HAD BEGIN AND AFTER A FEW ROUTINE FACTS WERE
ASCERTAINED, PETITIONER WAS QUESTIONED BRIEFLY ABOUT THE LOCATION OF
HIS MARINE UNIFORM.  HE WAS NEXT ASKED WHERE HE WAS ON THE NIGHT IN
QUESTION.  ALTHOUGH HE ADMITTED THAT HE WAS WITH HIS COUSIN RAWLS, HE
DENIED BEING WITH ANY THIRD PERSON.  THEN PETITIONER WAS GIVEN A
SOMEWHAT ABBREVIATED DESCRIPTION OF HIS CONSTITUTIONAL RIGHTS.  HE WAS
TOLD THAT HE COULD HAVE AN ATTORNEY IF HE WANTED ONE AND THAT ANYTHING
HE SAID COULD BE USED AGAINST HIM AT TRAIL.  QUESTIONING THEREAFTER
BECAME SOMEWHAT MORE VIGOROUS, BUT PETITIONER CONTINUED TO DENY BEING
WITH ANYONE BUT RAWLS.  AT THIS POINT, THE OFFICER QUESTIONING
PETITIONER TOLD HIM, FALSELY, THAT RAWLS HAD BEEN BROUGHT IN AND THAT
HE HAD CONFESSED.  PETITIONER STILL WAS RELUCTANT TO TALK, BUT AFTER
THE OFFICER SYMPATHETICALLY SUGGESTED THAT THE VICTIM HAD STARTED A
FIGHT BY MAKING HOMOSEXUAL ADVANCES, PETITIONER BEGAN TO SPILL OUT HIS
STORY.  SHORTLY AFTER HE BEGAN HE AGAIN SHOWED SIGNS OF RELUCTANCE AND
SAID, "I THINK I HAD BETTER GET A LAWYER BEFORE I TALK ANY MORE.  I AM
GOING TO GET INTO TROUBLE MORE THAN I AM IN NOW."  THE OFFICER REPLIED
SIMPLY, "YOU CAN'T BE IN ANY MORE TROUBLE THAN YOU ARE IN NOW," AND THE
QUESTIONING SESSION PROCEEDED.  A FULL CONFESSION WAS OBTAINED AND,
AFTER FURTHER WARNINGS, A WRITTEN VERSION WAS SIGNED. 

SINCE PETITIONER WAS TRIED AFTER THIS COURT'S DECISION IN ESCOBEDO
V. ILLINOIS, 378 U.S. 478 (1964), BUT BEFORE THE DECISION IN MIRANDA V.
ARIZONA, 384 U.S. 436 (1966), ONLY THE RULE OF THE FORMER CASE IS
DIRECTLY APPLICABLE.  JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966). 
PETITIONER ARGUES THAT HIS STATEMENT ABOUT GETTING A LAWYER WAS
SUFFICIENT TO BRING ESCOBEDO INTO PLAY AND THAT THE POLICE SHOULD
IMMEDIATELY HAVE STOPPED THE QUESTIONING AND OBTAINED COUNSEL FOR HIM. 
WE MIGHT AGREE WERE MIRANDA APPLICABLE TO THIS CASE, FOR IN MIRANDA
THIS COURT HELD THAT "(IF. . . (A SUSPECT) INDICATES IN ANY MANNER AND
AT ANY STATE OF THE PROCESS THAT HE WISHES TO CONSULT WITH AN ATTORNEY
BEFORE SPEAKING THERE CAN BE NO QUESTIONING."  384 U.S. AT 444-445. 
BUT MIRANDA DOES NOT APPLY TO THIS CASE.  THIS COURT IN JOHNSON V. NEW
JERSEY POINTEDLY REJECTED THE CONTENTION THAT THE SPECIFIC COMMANDS OF
MIRANDA SHOULD APPLY TO ALL POST-ESCOBEDO CASES.  THE COURT RECOGNIZED
"(HHE DISAGREEMENTS AMONG OTHER COURTS CONCERNING THE IMPLICATIONS OF
ESCOBEDO," JOHNSON V. NEW JERSEY, SUPRA, AT 734, AND CONCLUDED THAT THE
STATES, ALTHOUGH FREE TO APPLY MIRANDA TO POST-ESCOBEDO CASES, ID., AT
733, WERE NOT REQUIRED TO DO SO.  THE OREGON SUPREME COURT, IN
AFFIRMING PETITIONER'S CONVICTION, CONCLUDED THAT THE CONFESSION WAS
PROPERLY INTRODUCED INTO EVIDENCE.  UNDER JOHNSON, WE WOULD BE FREE TO
DISAGREE WITH THIS CONCLUSION ONLY IF WE FELT COMPELLED TO DO SO BY THE
SPECIFIC HOLDING OF ESCOBEDO. 

WE DO NOT BELIEVE THAT ESCOBEDO COVERS THIS CASE.  PETITIONER'S
STATEMENT ABOUT SEEING AN ATTORNEY WAS NEITHER AS CLEAR NOR AS
UNAMBIGUOUS AS THE REQUEST ESCOBEDO MADE.  THE POLICE IN ESCOBEDO WERE
UNMISTAKABLY INFORMED OF THEIR SUSPECT'S WISHES; IN FACT ESCOBEDO'S
ATTORNEY WAS PRESENT AND REPEATEDLY REQUESTED PERMISSION TO SEE HIS
CLIENT.  HERE, ON THE OTHER HAND, IT IS POSSIBLE THAT THE QUESTIONING
OFFICER TOOK PETITIONER'S REMARK NOT AS A REQUEST THAT THE
INTERROGATION CEASE BUT MERELY AS A PASSING COMMENT.  PETITIONER DID
NOT PURSUE THE MATTER, BUT CONTINUED ANSWERING QUESTIONS.  IN THIS
CONTEXT, WE CANNOT FIND THE DENIAL OF THE RIGHT TO COUNSEL WHICH WAS
FOUND SO CRUCIAL IN ESCOBEDO. 

PETITIONER ALSO PRESSES THE ALTERNATIVE ARGUMENT THAT HIS CONFESSION
WAS INVOLUNTARY AND THAT IT SHOULD HAVE BEEN EXCLUDED FOR THAT REASON. 
THE TRIAL JUDGE, AFTER AN EVIDENTIARY HEARING DURING WHICH THE TAPE
RECORDING WAS PLAYED, COULD NOT AGREE WITH THIS CONTENTION, AND OUR
READING OF THE RECORD DOES NOT LEAD US TO A CONTRARY CONCLUSION. 
BEFORE PETITIONER MADE ANY INCRIMINATING STATEMENTS, HE RECEIVED
PARTIAL WARNINGS OF HIS CONSTITUTIONAL RIGHTS; THIS IS, OF COURSE, A
CIRCUMSTANCE QUITE RELEVANT TO A FINDING OF VOLUNTARINESS.  DAVIS V.
NORTH CAROLINA, 384 U.S. 737, 740-741 (1966).  THE QUESTIONING WAS OF
SHORT DURATION, AND PETITIONER WAS A MATURE INDIVIDUAL OF NORMAL
INTELLIGENCE.  THE FACT THAT THE POLICE MISREPRESENTED THE STATEMENTS
THAT RAWLS HAD MADE IS, WHILE RELEVANT, INSUFFICIENT IN OUR VIEW TO
MAKE THIS OTHERWISE VOLUNTARY CONFESSION INADMISSIBLE.  THESE CASES
MUST BE DECIDED BY VIEWING THE "TOTALITY OF THE CIRCUMSTANCES,"  SEE,
E.G., CLEWIS V. TEXAS, 386 U.S. 707, 708 (1967), AND ON THE FACTS OF
THIS CASE WE CAN FIND NO ERROR IN THE ADMISSION OF PETITIONER'S
CONFESSION. 

        III. 

PETITIONER'S FINAL CONTENTION CAN BE DISMISSED RATHER QUICKLY.  HE
ARGUES THAT THE TRIAL JUDGE ERRED IN PERMITTING SOME CLOTHING SEIZED
FROM PETITIONER'S DUFFEL BAG TO BE INTRODUCED INTO EVIDENCE.  THIS
DUFFEL BAG WAS BEING USED JOINTLY BY PETITIONER AND HIS COUSIN RAWLS
AND IT HAD BEEN LEFT IN RAWLS' HOME.  THE POLICE, WHILE ARRESTING
RAWLS, ASKED HIM IF THEY COULD HAVE HIS CLOTHING.  THEY WERE DIRECTED
TO THE DUFFEL BAG AND BOTH RAWLS AND HIS MOTHER CONSENTED TO ITS
SEARCH.  DURING THIS SEARCH, THE OFFICERS CAME UPON PETITIONER'S
CLOTHING AND IT WAS SEIZED AS WELL.  SINCE RAWLS WAS A JOINT USER OF
THE BAG, HE CLEARLY HAD AUTHORITY TO CONSENT TO ITS SEARCH.  THE
OFFICERS THEREFORE FOUND EVIDENCE AGAINST PETITIONER WHILE IN THE
COURSE OF AN OTHERWISE LAWFUL SEARCH.  UNDER THIS COURT'S PAST
DECISIONS, THEY WERE CLEARLY PERMITTED TO SEIZE IT.  HARRIS V. UNITED
STATES, 390 U.S. 234 (1968); WARDEN V. HAYDEN, 387 U.S. 294 (1967). 
PETITIONER ARGUES THAT RAWLS ONLY HAD ACTUAL PERMISSION TO USE ONE
COMPARTMENT OF THE BAG AND THAT HE HAD NO AUTHORITY TO CONSENT TO A
SEARCH OF THE OTHER COMPARTMENTS.  WE WILL NOT, HOWEVER, ENGAGE IN SUCH
METAPHYSICAL SUBTLETIES IN JUDGING THE EFFICACY OF RAWLS' CONSENT. 
PETITIONER, IN ALLOWING RAWLS TO USE THE BAG AND IN LEAVING IT IN HIS
HOUSE MUST BE TAKEN TO HAVE ASSUMED THE RISK THAT RAWLS WOULD ALLOW
SOMEONE ELSE TO LOOK INSIDE.  WE FIND NO VALID SEARCH AND SEIZURE CLAIM
IN THIS CASE. 

BECAUSE WE FIND NONE OF PETITIONER'S CONTENTIONS MERITORIOUS, WE
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

              AFFIRMED. 

/1/  A MORE SPECIFIC LIMITING INSTRUCTION MIGHT HAVE BEEN DESIRABLE,
BUT NONE WAS REQUESTED. 

MR. CHIEF JUSTICE WARREN AND MR. JUSTICE DOUGLAS CONCUR IN THE
RESULT. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

HOWARD M. FEUERSTEIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WAS R. A. NAHSTOLL. 

ARLEN SPECTER ARGUED THE CAUSE FOR RESPONDENT.  ON THE BRIEF WERE
ROBERT Y. THORNTON, ATTORNEY GENERAL OF OREGON, AND DAVID H. BLUNT,
ASSISTANT ATTORNEY GENERAL. 
..END :
















STREET V. NEW YORK, 394 U.S. 576 


       STREET V. NEW YORK. 

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 5.  ARGUED OCTOBER 21, 1968.-- DECIDED APRIL 21, 1969. 


APPELLANT, HAVING HEARD A NEWS BROADCAST OF THE SHOOTING OF JAMES
MEREDITH, A CIVIL RIGHTS LEADER, TOOK AN AMERICAN FLAG WHICH HE OWNED
TO A STREET CORNER NEAR HIS HOME IN NEW YORK AND IGNITED THE FLAG.  HE
WAS ARRESTED AND THEREAFTER CHARGED BY INFORMATION WITH MALICIOUS
MISCHIEF FOR VIOLATING SEC. 1425, SUBD. 16, PAR. D, OF THE NEW YORK
PENAL LAW, WHICH MAKES IT A CRIME PUBLICLY TO MUTILATE OR "PUBLICLY
(TO) DEFY . . . OR CAST CONTEMPT UPON (ANY AMERICAN FLAG) EITHER BY
WORDS OR ACT."  THE INFORMATION CHARGED APPELLANT WITH BURNING THE
AMERICAN FLAG AND PUBLICLY SPEAKING DEFIANT OR CONTEMPTUOUS WORDS ABOUT
THE FLAG.  APPELLANT UNSUCCESSFULLY MOVED TO DISMISS THE INFORMATION ON
THE GROUND THAT THE STATUTE VIOLATED HIS CONSTITUTIONAL RIGHT TO FREE
EXPRESSION BY PUNISHING HIM FOR ACTIVITY WHICH HE CONTENDED WAS A
CONSTITUTIONALLY PROTECTED "DEMONSTRATION" OR "PROTEST."  APPELLANT WAS
TRIED BEFORE A JUDGE WITHOUT A JURY AND CONVICTED.  THE ARRESTING
OFFICER TESTIFIED THAT AT THE TIME OF ARREST APPELLANT WAS STANDING ON
A CORNER SPEAKING TO A SMALL AND NOT UNRULY GROUP, WHICH DID NOT BLOCK
THE STREET OR SIDEWALK; ON THE OPPOSITE CORNER WAS THE BURNING FLAG;
APPELLANT TOLD THE GROUP:  "WE DON'T NEED NO DAMN FLAG," AND SAID TO
THE OFFICER, "IF THEY LET THAT HAPPEN TO MEREDITH, WE DON'T NEED AN
AMERICAN FLAG."  APPELLANT ALSO CHALLENGED THE CONSTITUTIONALITY OF THE
"WORDS" PART OF THE STATUTE IN THE APPELLATE TERM AND IN THE NEW YORK
COURT OF APPEALS, BOTH OF WHICH AFFIRMED HIS CONVICTION, THE LATTER
COURT UPHOLDING THE CONSTITUTIONALITY OF THE STATUTE WITHOUT ALLUDING
TO THE "WORDS" PART.  HELD: 

1.  APPELLANT HAS MET THE BURDEN OF SHOWING THAT THE FEDERAL
QUESTION OF CONSTITUTIONALITY OF THE "WORDS" PART OF THE STATUTE WAS
ADEQUATELY RAISED IN THE STATE COURTS, BY APPELLANT'S MOTION TO DISMISS
IN THE TRIAL COURT AND HIS BRIEFS IN THE APPELLATE COURTS.  PP. 581
585. 

2.  THE APPLICATION OF SEC. 1425, SUBD. 16, PAR. D, TO APPELLANT WAS
VIOLATIVE OF RIGHTS OF FREE EXPRESSION ASSURED AGAINST STATE
INFRINGEMENT BY THE FOURTEENTH AMENDMENT, BECAUSE IT PERMITTED HIM TO
BE PUNISHED MERELY FOR SPEAKING DEFIANT OR CONTEMPTUOUS WORDS ABOUT THE
AMERICAN FLAG.  PP. 581, 585-594. 

(A) APPELLANT'S CONVICTION MUST BE SET ASIDE IF IT COULD HAVE BEEN
BASED SOLELY UPON HIS WORDS, OR UPON BOTH HIS WORDS AND HIS ACT, AND IF
A CONVICTION ON SUCH A BASIS WOULD BE UNCONSTITUTIONAL.  STROMBERG V.
CALIFORNIA, 283 U.S. 359 (1931); THOMAS V. COLLINS, 323 U.S. 516
(1945).  PP. 585-588. 

(B) THE RECORD HERE IS INSUFFICIENT TO ELIMINATE THE POSSIBILITY
THAT APPELLANT'S WORDS WERE THE SOLE BASIS OF HIS CONVICTION OR THAT HE
WAS CONVICTED FOR BOTH HIS WORDS AND HIS DEED.  PP. 588-590. 

(C) APPELLANT'S CONVICTION UNDER SEC. 1425, SUBD. 16, PAR. D, FOR
SPEAKING AS HE DID COULD NOT BE CONSTITUTIONALLY JUSTIFIED ON THE BASIS
THAT THE WORDS HE UTTERED (1) CONSTITUTED INCITEMENT TO OTHERS TO
COMMIT UNLAWFUL ACTS; (2) WERE SO INFLAMMATORY AS TO PROVOKE VIOLENT
RETALIATION BY OTHERS; (3) WERE (APART FROM THE CONTENT OF THE IDEAS
THEY CONVEYED) LIKELY TO SHOCK PASSERS-BY; OR (4), IN THE LIGHT OF
BOARD OF EDUC.  V. BARNETTE, 319 U.S. 624 (1943), CONSTITUTED FAILURE
BY THE APPELLANT TO MANIFEST THE RESPECT WHICH EVERY CITIZEN MUST SHOW
THE FLAG.  PP. 590-593. 

20 N.Y.2D 231, 229 N.E. 2D 187, REVERSED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

APPELLANT STREET HAS BEEN CONVICTED IN THE NEW YORK COURTS OF
VIOLATING FORMER SEC. 1425, SUBD. 16, PAR. D, OF THE NEW YORK PENAL
LAW, WHICH MAKES IT A MISDEMEANOR "PUBLICLY (TO) MUTILATE, DEFACE,
DEFILE, OR DEFY, TRAMPLE UPON, OR CAST CONTEMPT UPON EITHER BY WORDS OR
ACT (ANY FLAG OF THE UNITED STATES)."  /1/  LIGHT OF ALL THE
CIRCUMSTANCES, THAT CONVICTION DENIED TO HIM RIGHTS OF FREE HE WAS
GIVEN A SUSPENDED SENTENCE.  WE MUST DECIDE WHETHER, IN EXPRESSION
PROTECTED BY THE FIRST AMENDMENT AND ASSURED AGAINST STATE INFRINGEMENT
BY THE FOURTEENTH AMENDMENT.  SEE NEW YORK TIMES CO. V. SULLIVAN, 376
U.S. 254, 269, 271, 276-277 (1964). 

ACCORDING TO EVIDENCE GIVEN AT TRIAL, THE EVENTS WHICH LED TO THE
CONVICTION WERE THESE.  APPELLANT TESTIFIED THAT DURING THE AFTERNOON
OF JUNE 6, 1966, HE WAS LISTENING TO THE RADIO IN HIS BROOKLYN
APARTMENT.  HE HEARD A NEWS REPORT THAT CIVIL RIGHTS LEADER JAMES
MEREDITH HAD BEEN SHOT BY A SNIPER IN MISSISSIPPI.  SAYING TO HIMSELF,
"THEY DIDN'T PROTECT HIM," APPELLANT, HIMSELF A NEGRO, TOOK FROM HIS
DRAWER A NEATLY FOLDED, 48-STAR AMERICAN FLAG WHICH HE FORMERLY HAD
DISPLAYED ON NATIONAL HOLIDAYS.  APPELLANT LEFT HIS APARTMENT AND
CARRIED THE STILL-FOLDED FLAG TO THE NEARBY INTERSECTION OF ST. JAMES
PLACE AND LAFAYETTE AVENUE.  APPELLANT STOOD ON THE NORTHEAST CORNER OF
THE INTERSECTION, LIT THE FLAG WITH A MATCH, AND DROPPED THE FLAG ON
THE PAVEMENT WHEN IT BEGAN TO BURN. 

SOON THEREAFTER, A POLICE OFFICER HALTED HIS PATROL CAR AND FOUND
THE BURNING FLAG.  THE OFFICER TESTIFIED THAT HE THEN CROSSED TO THE
NORTHWEST CORNER OF THE INTERSECTION, WHERE HE FOUND APPELLANT "TALKING
OUT LOUD" TO A SMALL GROUP OF PERSONS.  THE OFFICER ESTIMATED THAT
THERE WERE SOME 30 PERSONS ON THE CORNER NEAR THE FLAG AND FIVE TO 10
ON THE CORNER WITH APPELLANT.  THE OFFICER TESTIFIED THAT AS HE
APPROACHED WITHIN 10 OR 15 FEET OF APPELLANT, HE HEARD APPELLANT SAY,
"WE DON'T NEED NO DAMN FLAG," AND THAT WHEN HE ASKED APPELLANT WHETHER
HE HAD BURNED THE FLAG APPELLANT REPLIED:  "YES; THAT IS MY FLAG; I
BURNED IT.  IF THEY LET THAT HAPPEN TO MEREDITH WE DON'T NEED AN
AMERICAN FLAG."  APPELLANT ADMITTED MAKING THE LATTER RESPONSE, BUT HE
DENIED THAT HE SAID ANYTHING ELSE AND ASSERTED THAT HE ALWAYS HAD
REMAINED ON THE CORNER WITH THE FLAG. 

LATER THE SAME DAY, APPELLANT WAS CHARGED, BY AN INFORMATION SWORN
TO BEFORE A JUDGE OF THE NEW YORK CITY CRIMINAL COURT, WITH HAVING
COMMITTED "THE CRIME OF MALICIOUS MISCHIEF IN THAT (HE) DID WILFULLY
AND UNLAWFULLY DEFILE, CAST CONTEMPT UPON AND BURN AN AMERICAN FLAG, IN
VIOLATION OF 1425-16-D OF THE PENAL LAW, UNDER THE FOLLOWING
CIRCUMSTANCES:  . . . (HE) DID WILFULLY AND UNLAWFULLY SET FIRE TO AN
AMERICAN FLAG AND SHOUT, 'IF THEY DID THAT TO MEREDITH, WE DON'T NEED
AN AMERICAN FLAG.'" 

APPELLANT WAS TRIED BEFORE ANOTHER CRIMINAL COURT JUDGE, SITTING
WITHOUT A JURY, AND WAS CONVICTED OF MALICIOUS MISCHIEF IN VIOLATION OF
SEC. 1425, SUBD. 16, PAR. D.  /2/  HE WAS SUBSEQUENTLY GIVEN A
SUSPENDED SENTENCE.  THE APPELLATE TERM, SECOND DEPARTMENT, AFFIRMED
WITHOUT OPINION.  LEAVE WAS GRANTED TO APPEAL TO THE NEW YORK COURT OF
APPEALS, AND AFTER PLENARY CONSIDERATION THAT COURT UNANIMOUSLY
AFFIRMED.  20 N.Y.2D 231, 229 N.E.2D 187 (1967).  WE NOTED PROBABLE
JURISDICTION.  392 U.S. 923 (1968).  /3/ 

STREET ARGUES THAT HIS CONVICTION WAS UNCONSTITUTIONAL FOR THREE
DIFFERENT REASONS.  FIRST, HE CLAIMS THAT SEC. 1425, SUBD. 16, PAR. D,
IS OVERBROAD, BOTH ON ITS FACE AND AS APPLIED, BECAUSE THE SECTION
MAKES IT A CRIME "PUBLICLY (TO) DEFY . . . OR CAST CONTEMPT UPON (AN
AMERICAN FLAG) BY WORDS . . ."  SECOND, HE CONTENDS THAT SEC. 1425,
SUBD. 16, PAR. D, IS VAGUE AND IMPRECISE BECAUSE IT DOES NOT CLEARLY
DEFINE THE CONDUCT WHICH IT FORBIDS.  THIRD, HE ASSERTS THAT NEW YORK
MAY NOT CONSTITUTIONALLY PUNISH ONE WHO PUBLICLY DESTROYS OR DAMAGES AN
AMERICAN FLAG AS A MEANS OF PROTEST, BECAUSE SUCH AN ACT CONSTITUTES
EXPRESSION PROTECTED BY THE FOURTEENTH AMENDMENT.  WE DEEM IT
UNNECESSARY TO CONSIDER THE LATTER TWO ARGUMENTS, FOR WE HOLD THAT SEC.
1425, SUBD. 16, PAR. D, WAS UNCONSTITUTIONALLY APPLIED IN APPELLANT'S
CASE BECAUSE IT PERMITTED HIM TO BE PUNISHED MERELY FOR SPEAKING
DEFIANT OR CONTEMPTUOUS WORDS ABOUT THE AMERICAN FLAG.  TAKING THIS
COURSE, WE RESIST THE PULLS TO DECIDE THE CONSTITUTIONAL ISSUES
INVOLVED IN THIS CASE ON A BROADER BASIS THAN THE RECORD BEFORE US
IMPERATIVELY REQUIRES. 

THOUGH OUR CONCLUSION IS A NARROW ONE, IT REQUIRES PURSUIT OF FOUR
LINES OF INQUIRY:  (1) WHETHER THE CONSTITUTIONALITY OF THE "WORDS"
PART OF THE STATUTE WAS PASSED UPON BY THE NEW YORK COURT OF APPEALS;
(2) WHETHER, IF APPELLANT'S CONVICTION MAY HAVE RESTED IN WHILE OR IN
PART ON HIS UTTERANCES AND IF THE STATUTE AS THUS APPLIED IS
UNCONSTITUTIONAL, THESE FACTORS IN THEMSELVES REQUIRE REVERSAL; (3)
WHETHER STREET'S WORDS MAY IN FACT HAVE COUNTED INDEPENDENTLY IN HIS
CONVICTION; AND (4) WHETHER THE "WORDS" PROVISION OF THE STATUTE, AS
PRESENTED BY THIS CASE, IS UNCONSTITUTIONAL. 

        I. 

THE NEW YORK COURT OF APPEALS DID NOT MENTION IN ITS OPINION THE
CONSTITUTIONALITY OF THE "WORDS" PART OF SEC. 1425, SUBD. 16, PAR. D. 
/4/  HENCE, IN ORDER TO VINDICATE OUR JURISDICTION TO DEAL WITH THIS
PARTICULAR ISSUE, WE MUST INQUIRE WHETHER THAT QUESTION WAS PRESENTED
TO THE NEW YORK COURTS IN SUCH A MANNER THAT IT WAS NECESSARILY DECIDED
BY THE NEW YORK COURT OF APPEALS WHEN IT AFFIRMED APPELLANT'S
CONVICTION.  IF THE QUESTION WAS NOT SO PRESENTED, THEN WE HAVE NO
POWER TO CONSIDER IT. SEE 28 U.S.C. 1257(2), 1257(3); BAILEY V.
ANDERSON, 326 U.S. 203, 206-207 (1945).  MOREOVER, THIS COURT HAS
STATED THAT WHEN, AS HERE, THE HIGHEST STATE COURT HAS FAILED TO PASS
UPON A FEDERAL QUESTION, IT WILL BE ASSUMED THAT THE OMISSION WAS DUE
TO WANT OF PROPER PRESENTATION IN THE STATE COURTS, UNLESS THE
AGGRIEVED PARTY IN THIS COURT CAN AFFIRMATIVELY SHOW THE CONTRARY. 
SEE, E.G., BAILEY V. ANDERSON, SUPRA; CHICAGO, I. & L.R. CO. V.
MCGUIRE, 196 U.S. 128, 131-133 (1905). 

IN THIS CASE, ANY WANT OF PRESENTATION BY THE APPELLANT MUST HAVE
OCCURRED AT THE TRIAL LEVEL, FOR THERE APPEARS TO BE NO DOUBT THAT THE
ISSUE OF THE CONSTITUTIONALITY OF THE "WORDS" PART OF THE STATUTE WAS
RAISED IN APPELLANT'S BRIEFS IN BOTH THE APPELLATE TERM AND THE COURT
OF APPEALS, AND THE STATE DOES NOT SUGGEST THE CONTRARY.  IN THE TRIAL
COURT, APPELLANT'S COUNSEL RAISED THE CONSTITUTIONAL ISSUES BY MEANS OF
THE FOLLOWING MOTION: 

      "BEFORE WE PLEAD TO THIS CASE I WOULD LIKE TO MAKE A MOTION
TO

  DISMISS THE INFORMATION UPON THE GROUND IT DOES NOT STATE FACTS

  TO CONSTITUTE A CRIME ON THE FOLLOWING GROUNDS:  THE DEFENDANT

  WAS ENGAGED IN A CONSTITUTIONALLY PROTECTED ACTIVITY, TO WIT,

  FREEDOM OF SPEECH.  THE ALLEGATION SIMPLY SAYS THAT THE DEFENDANT

  DID WILFULLY AND UNLAWFULLY SET FIRE TO AN AMERICAN FLAG AND DID

  SAY:  'IF THEY DID THAT TO MEREDITH WE DON'T NEED AN AMERICAN

  FLAG.'  UNDER THE FIRST AMENDMENT OF THE CONSTITUTION OF THE

 UNITED STATES AND UNDER THE NEW YORK STATE CONSTITUTION ON

  FREEDOM OF SPEECH THEY PROVIDE FOR PROTEST IN MANY FORMS, WHETHER

  IT BE BY BURNING A FLAG, DEMONSTRATION OR PICKETING.  THIS IS A

  FORM OF DEMONSTRATION AND PROTEST." 

THE MOTION WAS DENIED.  IT WAS RENEWED AT THE END OF THE STATE'S CASE
AND AT THE END OF THE TRIAL, AND ON BOTH OCCASIONS WAS AGAIN DENIED. 

THE ISSUE WHETHER A FEDERAL QUESTION WAS SUFFICIENTLY AND PROPERLY
RAISED IN THE STATE COURTS IS ITSELF ULTIMATELY A FEDERAL QUESTION, AS
TO WHICH THIS COURT IS NOT BOUND BY THE DECISION OF THE STATE COURTS. 
/5/  HOWEVER, IT IS NOT ENTIRELY CLEAR WHETHER IN SUCH CASES THE SCOPE
OF OUR REVIEW IS LIMITED TO DETERMINING WHETHER THE STATE COURT HAS "BY
PASSED THE FEDERAL RIGHT UNDER FORMS OF LOCAL PROCEDURE" OR WHETHER WE
SHOULD DECIDE THE MATTER "DE NOVO FOR OURSELVES."  ELLIS V. DIXON, 349
U.S. 458, 463 (1955).  IN EITHER EVENT, WE THINK APPELLANT HAS MET THE
BURDEN OF SHOWING THAT THE ISSUE OF THE CONSTITUTIONALITY OF THE
"WORDS" PART OF SEC. 1425, SUBD. 16, PAR. D, WAS ADEQUATELY RAISED IN
THE STATE TRIAL COURT.  THE MOTION QUOTED ABOVE EXPLICITLY REFERRED TO
APPELLANT'S WORDS.  APPELLANT'S COUNSEL TERMED APPELLANT'S OVERALL
ACTIVITY A "DEMONSTRATION" OR "PROTEST," TERMS WHICH ENCOMPASS WORDS AS
WELL AS CONDUCT.  INDEED, IF APPELLANT'S INTENTION WAS TO PROTEST
ALLEGED GOVERNMENTAL INACTION IN CONNECTION WITH THE SHOOTING OF JAMES
MEREDITH, HIS WORDS WERE AN ESSENTIAL ELEMENT, FOR WITHOUT THEM NO ONE
WOULD HAVE KNOWN THE OBJECT OF HIS PROTEST. 

TO THE EXTENT THAT THE MATTER IS GOVERNED BY NEW YORK LAW, WE HAVE
FOUND NO NEW YORK STATUTES OR DECISIONS WHICH REQUIRE THAT AN ISSUE BE
RAISED IN THE TRIAL COURT WITH GREATER SPECIFICITY THAN OCCURRED HERE. 
IN FACT, IN PEOPLE V. MCLUCAS, 15 N.Y.2D 167, 172, 204 N.E.2D 846, 848
(1965), THE NEW YORK COURT OF APPEALS HELD THAT WHEN AN APPELLANT
CLAIMS "DEPRIVATION OF A FUNDAMENTAL CONSTITUTIONAL RIGHT" NEW YORK
APPELLATE COURTS MAY REVIEW THE CORRECTNESS OF A JURY CHARGE EVEN
THOUGH THE APPELLANT FAILED TO EXCEPT TO THE CHARGE IN THE TRIAL
COURT.  THE COURT OF APPEALS REACHED THIS RESULT DESPITE THE FACT THAT
SEC. 420-A OF THE NEW YORK CODE OF CRIMINAL PROCEDURE THEN REQUIRED
THAT AN EXCEPTION BE TAKEN "EXPRESSLY" IF THE ISSUE OF THE CORRECTNESS
OF A JURY CHARGE WAS TO BE PRESERVED FOR APPELLATE REVIEW.  IN THE
PRESENT CASE, THE RIGHT ASSERTED BY APPELLANT WAS SURELY "FUNDAMENTAL,"
AND UNDER NEW YORK LAW A LESS PRECISE OBJECTION WAS REQUIRED THAN TO A
JURY INSTRUCTION.  /6/ 

INSOFAR AS THE QUESTION OF SUFFICIENT PRESENTATION IS ONE FOR OUT
INDEPENDENT DECISION, THE CONTROLLING PRINCIPLE WAS SET FORTH IN THE
LEADING CASE OF NEW YORK EX REL. BRYANT V. ZIMMERMAN, 278 U.S. 63, 67
(1928): 

     "THERE ARE VARIOUS WAYS IN WHICH THE VALIDITY OF A STATE

  STATUTE MAY BE DRAWN IN QUESTION ON THE GROUND THAT IT IS

  REPUGNANT TO THE CONSTITUTION OF THE UNITED STATES.  NO

  PARTICULAR FORM OF WORDS OR PHRASES IS ESSENTIAL, BUT ONLY THAT

  THE CLAIM OF INVALIDITY AND THE GROUND THEREFOR BE BROUGHT TO THE

  ATTENTION OF THE STATE COURT WITH FAIR PRECISION AND IN DUE

  TIME.  AND IF THE RECORD AS A WHOLE SHOWS EITHER EXPRESSLY OR BY

  CLEAR INTENDMENT THAT THIS WAS DONE, THE CLAIM IS TO BE REGARDED

  AS HAVING BEEN ADEQUATELY PRESENTED."  (FOOTNOTE OMITTED.) 

WE THINK THIS REQUIREMENT WAS SATISFIED BY APPELLANT'S PREVIOUSLY
QUOTED MOTION IN THE TRIAL COURT AND HIS RAISING OF THE ISSUE IN THE
TWO APPELLATE COURTS.  /7/  WE THEREFORE CONCLUDE THAT THE QUESTION IS
PROPERLY BEFORE US.

        II. 

WE NEXT CONSIDER WHETHER IT IS OUR DUTY TO REVERSE IF WE FIND, AS WE
DO IN PARTS III AND IV, INFRA, THAT STREET'S WORDS COULD HAVE BEEN AN
INDEPENDENT CAUSE OF HIS CONVICTION AND THAT A CONVICTION FOR UTTERING
SUCH WORDS WOULD VIOLATE THE CONSTITUTION. 

THAT SUCH IS OUR DUTY IS MADE APPARENT BY A NUMBER OF DECISIONS OF
THIS COURT.  IN THE LEADING CASE OF STROMBERG V. CALIFORNIA, 283 U.S.
359 (1931), THE APPELLANT WAS CONVICTED BY A JURY UNDER A CALIFORNIA
STATUTE MAKING IT AN OFFENSE PUBLICLY TO DISPLAY A RED FLAG FOR ANY ONE
OF THREE PURPOSES.  FINDING THAT IT WOULD BE UNCONSTITUTIONAL TO PUNISH
ONE WHO DISPLAYED FOR THE FIRST-NAMED REASON, THIS COURT REJECTED THE
STATE COURT'S REASONING THAT THE APPELLANT'S CONVICTION COULD
NEVERTHELESS BE SUSTAINED BECAUSE THE OTHER TWO STATUTORY REASONS WERE
SEVERABLE AND CONSTITUTIONAL.  THIS COURT SAID: 

"THE VERDICT AGAINST THE APPELLANT WAS A GENERAL ONE.  IT DID NOT
SPECIFY THE GROUND UPON WHICH IT RESTED . . . (IT IS IMPOSSIBLE TO SAY
UNDER WHICH CLAUSE OF THE STATUTE THE CONVICTION WAS OBTAINED.  IF ANY
ONE OF THESE CLAUSES . . . WAS INVALID, IT CANNOT BE DETERMINED UPON
THIS RECORD THAT THE APPELLANT WAS NOT CONVICTED UNDER THAT CLAUSE.. .
. IT FOLLOWS THAT . . . THE CONVICTION CANNOT BE UPHELD."  ID., AT 367
368. 

THE PRINCIPLE ESTABLISHED IN STROMBERG HAS BEEN CONSISTENTLY
FOLLOWED.  IN WILLIAMS V. NORTH CAROLINA, 317 U.S. 287 (1942), THIS
COURT AGAIN HELD ITSELF COMPELLED TO REVERSE A CONVICTION BASED UPON A
GENERAL JURY VERDICT WHEN THE RECORD FAILED TO PROVE THAT THE
CONVICTION WAS NOT FOUNDED UPON A THEORY WHICH COULD NOT
CONSTITUTIONALLY SUPPORT A VERDICT.  THE COURT STATED: 

"TO SAY THAT A GENERAL VERDICT OF GUILTY SHOULD BE UPHELD THOUGH WE
CANNOT KNOW THAT IT DID NOT REST ON THE INVALID CONSTITUTIONAL GROUND .
. . WOULD BE TO COUNTENANCE A PROCEDURE WHICH WOULD CAUSE A SERIOUS
IMPAIRMENT OF CONSTITUTIONAL RIGHTS."  ID., AT 292.  THE RULE WAS AGAIN
APPLIED IN CRAMER V. UNITED STATES, 325 U.S. 1, 36, N. 45 (1945);
TERMINIELLO V. CHICAGO, 337 U.S. 1, 5-6 (1949); AND YATES V. UNITED
STATES, 354 U.S. 298, 311 (1957). 

IT IS TRUE THAT IN THE PRESENT CASE THE GENERAL VERDICT WAS RENDERED
BY A JUDGE, NOT A JURY.  HOWEVER, IF THE GROUND OF THE JUDGE'S DECISION
CANNOT BE ASCERTAINED FROM THE RECORD, THEN THE DANGER OF
UNCONSTITUTIONAL CONVICTION IS NOT SIGNIFICANTLY LESS THAN IN THE CASES
JUST DISCUSSED.  CF. THOMAS V. COLLINS, 323 U.S. 516, 528-529 (1945). 
NOR WOULD IT BE APPROPRIATE TO REMAND THE CASE TO THE TRIAL JUDGE FOR A
POST HOC EXPLANATION OF THE GROUNDS OF HIS DECISION.  CF. GREYHOUND
LINES V. MEALEY, 334 U.S. 653, 655 (1948).  HENCE, WE CONCLUDE THAT THE
CASE IS GOVERNED BY THE RULE OF STROMBERG, AND THAT APPELLANT'S
CONVICTION MUST BE SET ASIDE IF WE FIND THAT IT COULD HAVE BEEN BASED
SOLELY UPON HIS WORDS AND THAT A CONVICTION RESTING ON SUCH A BASIS
WOULD BE UNCONSTITUTIONAL-- A MATTER TO WHICH WE SHALL TURN IN A
MOMENT. 

MOREOVER, EVEN ASSUMING THAT THE RECORD PRECLUDES THE INFERENCE THAT
APPELLANT'S CONVICTION MIGHT HAVE BEEN BASED SOLELY ON HIS WORDS, WE
ARE STILL BOUND TO REVERSE IF THE CONVICTION COULD HAVE BEEN BASED UPON
BOTH HIS WORDS AND HIS ACT.  THIS IS MADE APPARENT BY THOMAS V.
COLLINS, SUPRA.  THE COURT IN THAT CASE NOTED THAT THOMAS HAD BEEN
CITED FOR CONTEMPT BECAUSE DURING A MEETING HE ALLEGEDLY HAD VIOLATED A
COURT RESTRAINING ORDER BOTH BY SOLICITING A SINGLE INDIVIDUAL TO JOIN
A UNION AND BY SOLICITING ALL NONUNION MEN PRESENT.  THE COURT FOUND IT
UNNECESSARY TO CONSIDER THE STATE'S CONTENTION THAT THE JUDGMENT COULD
BE SUSTAINED ON THE BASIS OF THE INDIVIDUAL SOLICITATION ALONE.  THE
COURT SAID: 

"THE MOTION FOR THE FIAT IN CONTEMPT WAS FILED AND THE FIAT ITSELF
WAS ISSUED ON ACCOUNT OF BOTH INVITATIONS.  THE ORDER ADJUDGING THOMAS
IN CONTEMPT WAS IN GENERAL TERMS, FINDING THAT HE HAD VIOLATED THE
RESTRAINING ORDER, WITHOUT DISTINCTION BETWEEN THE SOLICITATIONS SET
FORTH IN THE PETITION AND PROVED AS VIOLATIONS.  THE SENTENCE WAS A
SINGLE PENALTY.  IN THIS STATE OF THE RECORD IT MUST BE TAKEN THAT THE
ORDER FOLLOWED THE PRAYER OF THE MOTION AND THE FIAT'S RECITAL, AND
THAT THE PENALTY WAS IMPOSED ON ACCOUNT OF BOTH INVITATIONS.  THE
JUDGMENT THEREFORE MUST BE AFFIRMED AS TO BOTH OR AS TO NEITHER.  CF.
WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 292; STROMBERG V. CALIFORNIA,
283 U.S. 359, 368."  323 U.S.,AT 528-529.  (FOOTNOTES OMITTED.) 
FINDING THAT A CONVICTION BASED UPON THE GENERAL SOLICITATION COULD NOT
STAND, THE COURT REVERSED THE ENTIRE CONVICTION.  /8/ 

AS IN THOMAS, APPELLANT HERE WAS CHARGED WITH TWO ACTS VIOLATIVE OF
THE STATUTE:  BURNING A FLAG AND PUBLICLY SPEAKING DEFIANT OR
CONTEMPTUOUS WORDS ABOUT THE FLAG; AND EVIDENCE WAS INTRODUCED TO SHOW
THE COMMISSION OF BOTH ACTS.  HERE TOO THE VERDICT WAS GENERAL AND THE
SENTENCE A SINGLE PENALTY.  HENCE, UNLESS THE RECORD NEGATES THE
POSSIBILITY THAT THE CONVICTION WAS BASED ON BOTH ALLEGED VIOLATIONS,
THOMAS DICTATES THAT "(THE JUDGMENT . . . MUST BE AFFIRMED AS TO BOTH
OR AS TO NEITHER." 

WE TAKE THE RATIONALE OF THOMAS TO BE THAT WHEN A SINGLE-COUNT
INDICTMENT OR INFORMATION CHARGES THE COMMISSION OF A CRIME BY VIRTUE
OF THE DEFENDANT'S HAVING DONE BOTH A CONSTITUTIONALLY PROTECTED ACT
AND ONE WHICH MAY BE UNPROTECTED, AND A GUILTY VERDICT ENSUES WITHOUT
ELUCIDATION, THERE IS AN UNACCEPTABLE DANGER THAT THE TRIER OF FACT
WILL HAVE REGARDED THE TWO ACTS AS "INTERTWINED" AND HAVE RESTED THE
CONVICTION ON BOTH TOGETHER.  SEE 323 U.S.,AT 528-529, 540-541.  THERE
IS NO COMPARABLE HAZARD WHEN THE INDICTMENT OR INFORMATION IS IN
SEVERAL COUNTS AND THE CONVICTION IS EXPLICITLY DECLARED TO REST ON
FINDINGS OF GUILT ON CERTAIN OF THOSE COUNTS, /9/  FOR IN SUCH
INSTANCES THERE IS POSITIVE EVIDENCE THAT THE TRIER OF FACT CONSIDERED
EACH COUNT ON ITS OWN MERITS AND SEPARATELY FROM THE OTHERS. 

  III. 

WE TURN TO CONSIDERING WHETHER APPELLANT'S WORDS COULD HAVE BEEN THE
SOLE CAUSE OF HIS CONVICTION, OR WHETHER THE CONVICTION COULD HAVE BEEN
BASED ON BOTH HIS WORDS AND HIS BURNING OF THE FLAG.  AS STROMBERG
TEACHES, WE CANNOT TAKE THE OPINION OF THE NEW YORK COURT OF APPEALS AS
OBVIATING OUR DUTY TO EXAMINE THE RECORD FOR OURSELVES IN ORDER TO
ASCERTAIN WHETHER THE CONVICTION MAY HAVE RESTED UPON SUCH GROUNDS. 
RESTED UPON SUCH GROUNDS.  THE SWORN INFORMATION WHICH CHARGED
APPELLANT WITH THE CRIME OF MALICIOUS MISCHIEF, AND WHICH IS QUOTED
MORE FULLY SUPRA, AT 579, RECITED NOT ONLY THAT APPELLANT HAD BURNED AN
AMERICAN FLAG BUT ALSO THAT HE "(DID) SHOUT, 'IF THEY DID THAT TO
MEREDITH, WE DON'T NEED AN AMERICAN FLAG.'"  SECTION 1425, SUBD. 16,
PAR. D, THE STATUTE WHICH APPELLANT WAS CHARGED WITH VIOLATING, MADE IT
A CRIME NOT ONLY PUBLICLY TO MUTILATE A FLAG BUT ALSO "PUBLICLY (TO)
DEFY . . . OR CAST CONTEMPT UPON (ANY AMERICAN FLAG) BY WORDS." 

THE STATE ARGUES THAT APPELLANT'S WORDS WERE AT MOST USED TO
ESTABLISH HIS UNLAWFUL INTENT IN BURNING THE FLAG.  /10/  HOWEVER,
AFTER A CAREFUL EXAMINATION OF THE COMPARATIVELY BRIEF TRIAL RECORD, WE
FIND OURSELVES UNABLE TO SAY WITH CERTAINTY THAT APPELLANT'S WORDS WERE
NOT AN INDEPENDENT CAUSE OF HIS CONVICTION.  WHILE IT IS TRUE THAT AT
TRIAL GREATER EMPHASIS WAS PLACED UPON APPELLANT'S ACTION IN BURNING
THE FLAG THAN UPON HIS WORDS, A POLICE OFFICER DID TESTIFY TO THE
UTTERANCE OF THE WORDS.  THE STATE NEVER ANNOUNCED THAT IT WAS RELYING
EXCLUSIVELY UPON THE BURNING.  THE TRIAL WORDS AS RELATING SOLELY TO
INTENT.  THE JUDGE FOUND APPELLANT GUILTY IMMEDIATELY AFTER THE END OF
THE TRIAL, AND HE DELIVERED NO ORAL OR WRITTEN OPINION. 

IN THE FACE OF AN INFORMATION EXPLICITLY SETTING FORTH APPELLANT'S
WORDS AS AN ELEMENT OF HIS ALLEGED CRIME, AND OF APPELLANT'S SUBSEQUENT
CONVICTION UNDER A STATUTE MAKING IT AN OFFENSE TO SPEAK WORDS OF THAT
SORT, WE FIND THIS RECORD INSUFFICIENT TO ELIMINATE THE POSSIBILITY
EITHER THAT APPELLANT'S WORDS WERE THE SOLE BASIS OF HIS CONVICTION OR
THAT APPELLANT WAS CONVICTED FOR BOTH HIS WORDS AND HIS DEED. 

        IV. 

WE COME FINALLY TO THE QUESTION WHETHER, IN THE CIRCUMSTANCES OF
THIS CASE, NEW YORK MAY CONSTITUTIONALLY INFLICT CRIMINAL PUNISHMENT
UPON ONE WHO VENTURES "PUBLICLY (TO) DEFY . . . OR CAST CONTEMPT UPON
(ANY AMERICAN FLAG) BY WORDS . . . " 

THE RELEVANT EVIDENCE INTRODUCED AT APPELLANT'S TRIAL, CONSIDERED IN
THE LIGHT MOST FAVORABLE TO THE STATE, MUST BE TAKEN TO ESTABLISH THE
FOLLOWING.  AT THE TIME OF HIS ARREST, APPELLANT WAS STANDING ON A
STREET CORNER AND SPEAKING TO A SMALL CROWD; ON THE OPPOSITE CORNER LAY
THE BURNING FLAG.  APPELLANT SAID TO THE CROWD:  "WE DON'T NEED NO DAMN
FLAG"; AND WHEN QUESTIONED BY A POLICE OFFICER APPELLANT STATED:  "IF
THEY LET THAT HAPPEN TO MEREDITH WE DON'T NEED AN AMERICAN FLAG." 
ACCORDING TO THE OFFICER, THE CROWDS WHICH GATHERED AROUND APPELLANT
AND AROUND THE FLAG DID NOT OBSTRUCT THE STREET OR SIDEWALK AND WERE
NEITHER UNRULY NOR THREATENING. 

IN THESE CIRCUMSTANCES, WE CAN THINK OF FOUR GOVERNMENTAL INTERESTS
WHICH MIGHT CONCEIVABLY HAVE BEEN FURTHERED BY PUNISHING APPELLANT FOR
HIS WORDS:  (1) AN INTEREST IN DETERRING APPELLANT FROM VOCALLY
INCITING OTHERS TO COMMIT UNLAWFUL ACTS; (2) AN INTEREST IN PREVENTING
APPELLANT FROM UTTERING WORDS SO INFLAMMATORY THAT THEY WOULD PROVOKE
OTHERS TO RETALIATE PHYSICALLY AGAINST HIM, THEREBY CAUSING A BREACH OF
THE PEACE; (3) AN INTEREST IN PROTECTING THE SENSIBILITIES OF PASSERS
BY WHO MIGHT BE SHOCKED BY APPELLANT'S WORDS ABOUT THE AMERICAN FLAG;
AND (4) AN INTEREST IN ASSURING THAT APPELLANT, REGARDLESS OF THE
IMPACT OF HIS WORDS UPON OTHERS, SHOWED PROPER RESPECT FOR OUR NATIONAL
EMBLEM.     IN THE CIRCUMSTANCES OF THIS CASE, WE DO NOT BELIEVE THAT
ANY OF THESE INTERESTS MAY CONSTITUTIONALLY JUSTIFY APPELLANT'S
CONVICTION UNDER SEC. 1425, SUBD. 16, PAR. D, FOR SPEAKING AS HE DID. 
WE BEGIN WITH THE INTEREST IN PREVENTING INCITEMENT.  APPELLANT'S
WORDS, TAKEN ALONE, DID NOT URGE ANYONE TO DO ANYTHING UNLAWFUL.  THEY
AMOUNTED ONLY TO SOMEWHAT EXCITED PUBLIC ADVOCACY OF THE IDEA THAT THE
UNITED STATES SHOULD ABANDON, AT LEAST TEMPORARILY, ONE OF ITS NATIONAL
SYMBOLS.  IT IS CLEAR THAT THE FOURTEENTH AMENDMENT PROHIBITS THE
STATES FROM IMPOSING CRIMINAL PUNISHMENT FOR PUBLIC ADVOCACY OF
PEACEFUL CHANGE IN OUR INSTITUTIONS.  SEE, E.G., COX V. LOUISIANA (I),
379 U.S. 536, 546-552 (1965); EDWARDS V. SOUTH CAROLINA, 372 U.S. 229,
237-238 (1963); TERMINIELLO V. CHICAGO, 337 U.S. 1, 4-5 (1949); CF.
YATES V. UNITED STATES, 354 U.S. 298, 318-319 (1957).  EVEN ASSUMING
THAT APPELLANT'S WORDS MIGHT BE FOUND INCITIVE WHEN CONSIDERED TOGETHER
WITH HIS SIMULTANEOUS BURNING OF THE FLAG, SEC. 1425, SUBD. 16, PAR. D,
DOES NOT PURPORT TO PUNISH ONLY THOSE DEFIANT OR CONTEMPTUOUS WORDS
WHICH AMOUNT TO INCITEMENT, AND THERE IS NO EVIDENCE THAT THE STATE
COURTS REGARDED THE STATUTE AS SO LIMITED.  HENCE, A CONVICTION FOR
WORDS COULD NOT BE UPHELD ON THIS BASIS.  SEE, E.G., YATES V. UNITED
STATES, SUPRA; TERMINIELLO V. CHICAGO, SUPRA. 

NOR COULD SUCH A CONVICTION BE JUSTIFIED ON THE SECOND GROUND
MENTIONED ABOVE:  THE POSSIBLE TENDENCY OF APPELLANT'S WORDS TO PROVOKE
VIOLENT RETALIATION.  THOUGH IT IS CONCEIVABLE THAT SOME LISTENERS
MIGHT HAVE BEEN MOVED TO RETALIATE UPON HEARING APPELLANT'S
DISRESPECTFUL WORDS, WE CANNOT SAY THAT APPELLANT'S REMARKS WERE SO
INHERENTLY INFLAMMATORY AS TO COME WITHIN THAT SMALL CLASS OF "FIGHTING
WORDS" WHICH ARE "LIKELY TO PROVOKE THE AVERAGE PERSON TO RETALIATION,
AND THEREBY CAUSE A BREACH OF THE PEACE."  CHAPLINSKY V. NEW HAMPSHIRE,
315 U.S. 568, 574 (1942).  AND EVEN IF APPELLANT'S WORDS MIGHT BE FOUND
WITHIN THAT CATEGORY, SEC. 1425, SUBD. 16, PAR. D, IS NOT NARROWLY
DRAWN TO PUNISH ONLY WORDS OF THAT CHARACTER, AND THERE IS NO
INDICATION THAT IT WAS SO INTERPRETED BY THE STATE COURTS.  HENCE, THIS
CASE IS AGAIN DISTINGUISHABLE FROM CHAPLINSKY, SUPRA, IN WHICH THE CURT
EMPHASIZED THAT THE STATUTE WAS "CAREFULLY DRAWN SO AS NOT UNDULY TO
IMPAIR LIBERTY OF EXPRESSION . . . " ID., AT 574.  SEE ALSO TERMINIELLO
V. CHICAGO, SUPRA. 

AGAIN, SUCH A CONVICTION COULD NOT BE SUSTAINED ON THE GROUND THAT
APPELLANT'S WORDS WERE LIKELY TO SHOCK PASSERS-BY.  EXCEPT PERHAPS FOR
APPELLANT'S INCIDENTAL USE OF THE WORD "DAMN," UPON WHICH NO EMPHASIS
WAS PLACED AT TRIAL, /11/  ANY SHOCK EFFECT OF APPELLANT'S SPEECH MUST
BE ATTRIBUTED TO THE CONTENT OF THE IDEAS EXPRESSED.  IT IS FIRMLY
SETTLED THAT UNDER OUR CONSTITUTION THE PUBLIC EXPRESSION OF IDEAS MAY
NOT BE PROHIBITED MERELY BECAUSE THE IDEAS ARE THEMSELVES OFFENSIVE TO
SOME OF THEIR HEARERS.  SEE, E.G., COX V. LOUISIANA (I), SUPRA; EDWARDS
V. SOUTH CAROLINA, SUPRA; TERMINIELLO V. CHICAGO, SUPRA; CF. CANTWELL
V. CONNECTICUT, 310 U.S. 296 (1940).  AND EVEN IF SUCH A CONVICTION
MIGHT BE UPHELD ON THE GROUND OF "SHOCK," THERE IS AGAIN NO INDICATION
THAT THE STATE COURTS REGARDED THE STATUTE AS LIMITED TO THAT PURPOSE. 

FINALLY, SUCH A CONVICTION COULD NOT BE SUPPORTED ON THE THEORY THAT
BY MAKING THE ABOVE-QUOTED REMARKS ABOUT THE FLAG APPELLANT FAILED TO
SHOW THE RESPECT FOR OUR NATIONAL SYMBOL WHICH MAY PROPERLY BE DEMANDED
OF EVERY CITIZEN.  IN BOARD OF EDUC.  V. BARNETTE, 319 U.S. 624 (2943),
THIS COURT HELD THAT TO REQUIRE UNWILLING SCHOOLCHILDREN TO SALUTE THE
FLAG WOULD VIOLATE RIGHTS OF FREE EXPRESSION ASSURED BY THE FOURTEENTH
AMENDMENT.  IN HIS OPINION FOR THE COURT, MR. JUSTICE JACKSON WROTE
WORDS WHICH ARE ESPECIALLY APPOSITE HERE: 

     "THE CASE IS MADE DIFFICULT NOT BECAUSE THE PRINCIPLES OF ITS

  DECISION ARE OBSCURE BUT BECAUSE THE FLAG INVOLVED IS OUR OWN. 

  NEVERTHELESS, WE APPLY THE LIMITATIONS OF THE CONSTITUTION WITH

  NO FEAR THAT FREEDOM TO BE INTELLECTUALLY AND SPIRITUALLY DIVERSE

  OR EVEN CONTRARY WILL DISINTEGRATE THE SOCIAL ORGANIZATION . . .

  (FREEDOM TO DIFFER IS NOT LIMITED TO THINGS THAT DO NOT MATTER

MUCH.  THAT WOULD BE A MERE SHADOW OF FREEDOM.  THE TEST OF ITS

  SUBSTANCE IS THE RIGHT TO DIFFER AS TO THINGS THAT TOUCH THE

  HEART OF THE EXISTING ORDER. 

     "IF THERE IS ANY FIXED STAR IN OUR CONSTITUTIONAL

  CONSTELLATION, IT IS THAT NO OFFICIAL, HIGH OR PETTY, CAN

  PRESCRIBE WHAT SHALL BE ORTHODOX IN POLITICS, NATIONALISM,

  RELIGION, OR OTHER MATTERS OF OPINION OR FORCE CITIZENS TO

  CONFESS BY WORD OR ACT THEIR FAITH THEREIN.  IF THERE ARE ANY

CIRCUMSTANCES WHICH PERMIT AN EXCEPTION, THEY DO NOT NOW OCCUR TO

  US."  ID., AT 641-642.  (FOOTNOTE OMITTED.) 

WE HAVE NO DOUBT THAT THE CONSTITUTIONALLY GUARANTEED "FREEDOM TO BE
INTELLECTUALLY . . . DIVERSE OR EVEN CONTRARY," AND THE "RIGHT TO
DIFFER AS TO THINGS THAT TOUCH THE HEART OF THE EXISTING ORDER,"
ENCOMPASS THE FREEDOM TO EXPRESS PUBLICLY ONE'S OPINIONS ABOUT OUR
FLAG, INCLUDING THOSE OPINIONS WHICH ARE DEFIANT OR CONTEMPTUOUS. 

SINCE APPELLANT COULD NOT CONSTITUTIONALLY BE PUNISHED UNDER SEC.
1425, SUBD. 16, PAR. D, FOR HIS SPEECH, AND SINCE WE HAVE FOUND THAT HE
MAY HAVE BEEN SO PUNISHED, HIS CONVICTION CANNOT BE PERMITTED TO
STAND.  IN SO HOLDING, WE REITERATE THAT WE HAVE NO OCCASION TO PASS
UPON THE VALIDITY OF THIS CONVICTION INSOFAR AS IT WAS SUSTAINED BY THE
STATE COURTS ON THE BASIS THAT STREET COULD BE PUNISHED FOR HIS BURNING
OF THE FLAG, EVEN THOUGH THE BURNING WAS AN ACT OF PROTEST.  NOR DO WE
PERCEIVE ANY BASIS FOR OUR BROTHER WHITE'S FEARS THAT OUR DECISION
TODAY MAY BE TAKEN TO REQUIRE REVERSAL WHENEVER A DEFENDANT IS
CONVICTED FOR BURNING A FLAG IN PROTEST, FOLLOWING A TRIAL AT WHICH HIS
WORDS HAVE BEEN INTRODUCED TO PROVE SOME ELEMENT OF THAT OFFENSE. 
ASSUMING THAT SUCH A CONVICTION WOULD OTHERWISE PASS CONSTITUTIONAL
MUSTER, A MATTER ABOUT WHICH WE EXPRESS NO VIEW, NOTHING IN THIS
OPINION WOULD RENDER THE CONVICTION IMPERMISSIBLE MERELY BECAUSE AN
ELEMENT OF THE CRIME WAS PROVED BY THE DEFENDANT'S WORDS RATHER THAN IN
SOME OTHER WAY.  SEE UNITED STATES V. O'BRIEN, 391 U.S. 367, 369-370,
376-377 (1968). 

WE ADD THAT DISRESPECT FOR OUR FLAG IS TO BE DEPLORED NO LESS IN
THESE VEXED TIMES THAN IN CALMER PERIODS OF OUR HISTORY.  CF. HALTER V.
NEBRASKA, 205 U.S. 34 (1907).  NEVERTHELESS, WE ARE UNABLE TO SUSTAIN A
CONVICTION THAT MAY HAVE RESTED ON A FORM OF EXPRESSION, HOWEVER
DISTASTEFUL, WHICH THE CONSTITUTION TOLERATES AND PROTECTS. 

FOR THE REASONS PREVIOUSLY SET FORTH, WE REVERSE THE JUDGMENT OF THE
NEW YORK COURT OF APPEALS AND REMAND THE CASE FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  N.Y. PENAL LAW SEC. 1425, SUBD. 16, PAR. D (1909).  IN 1967
SEC. 1425, SUBD. 16, WAS SUPERSEDED BY SEC. 136 OF THE GENERAL BUSINESS
LAW, WHICH IN PAR. D DEFINES THE OFFENSE IN IDENTICAL LANGUAGE.  SEE
N.Y. LAWS 1965, C. 1031, SEC. 52. 

/2/  APPELLANT WAS SIMULTANEOUSLY TRIED FOR DISORDERLY CONDUCT IN
CONNECTION WITH THE SAME EVENTS.  HE WAS ACQUITTED OF THAT OFFENSE. 

/3/  AT ONE STAGE OF THE PROCEEDINGS IN THIS COURT, THE STATE MOVED
FOR DISMISSAL ON THE GROUND THAT WE LACKED JURISDICTION OVER THIS
APPEAL BECAUSE THE CASE WAS MOOT.  THE STATE POINTED OUT THAT APPELLANT
RECEIVED A SUSPENDED SENTENCE, AND THAT THE ONE-YEAR PERIOD WITHIN
WHICH THE SUSPENDED SENTENCE MIGHT HAVE BEEN REPLACED WITH A PRISON
SENTENCE UNDER NEW YORK LAW HAD EXPIRED.  IT FURTHER ASSERTED THAT
THERE WERE NO SIGNIFICANT COLLATERAL CONSEQUENCES UNDER EITHER NEW YORK
OR FEDERAL LAW.  IN RESPONSE, APPELLANT STATED THAT HIS EMPLOYER, THE
NEW YORK TRANSIT AUTHORITY, HAD INSTITUTED DISCIPLINARY PROCEEDINGS
AGAINST HIM AS A RESULT OF HIS CONVICTION.  APPELLANT WAS CHARGED WITH
"MISCONDUCT," AND ACCORDING TO TRANSIT AUTHORITY RULES HE MAY BE
PUNISHED BY A FINE OF UP TO $100 OR SUSPENSION WITHOUT PAY FOR UP TO
TWO MONTHS IF THE STILL-PENDING CHARGES ARE FINALLY SUSTAINED. 
APPELLANT ALSO NOTED THAT SECS. 393-C, 482, AND 510 OF THE NEW YORK
CODE OF CRIMINAL PROCEDURE PROVIDE RESPECTIVELY THAT HIS CONVICTION MAY
BE USED TO REBUT ANY CHARACTER EVIDENCE ADDUCED BY HIM IN FUTURE
CRIMINAL PROCEEDINGS; THAT A RECORD OF HIS CONVICTION MUST BE MADE
AVAILABLE TO THE JUDGE PRIOR TO IMPOSITION OF ANY FUTURE CRIMINAL
SENTENCE; AND THAT IF CONVICTED OF A FELONY HE MAY NOW BE SENTENCED AS
A "HABITUAL CRIMINAL." 

ONLY LAST TERM, THIS COURT HELD IN GINSBERG V. NEW YORK, 390 U.S.
629, 633, N. 2 (1968), THAT THE CASE OF A NEW YORK APPELLANT WAS NOT
MOOT EVEN THOUGH THE TIME FOR REVOCATION OF HIS SUSPENDED SENTENCE HAD
EXPIRED, BECAUSE IT WAS POSSIBLE THAT HIS LICENSE TO OPERATE A
LUNCHEONETTE MIGHT BE WITHDRAWN IN CONSEQUENCE OF HIS CONVICTION.  HERE
THERE IS AN ACTUAL RATHER THAN MERELY A POTENTIAL THREAT THAT APPELLANT
WILL BE DEPRIVED OF HIS EMPLOYMENT, ALBEIT ONLY TEMPORARILY.  THIS
COURT ALSO HELD LAST TERM, IN SIBRON V. NEW YORK, 392 U.S. 40, 50-58
(1968), THAT THE CASE OF A NEW YORK APPELLANT WHO HAD FULLY SERVED HIS
MISDEMEANOR SENTENCE WAS NOT MOOT BECAUSE HE APPARENTLY COULD NOT HAVE
BROUGHT HIS CASE TO THIS COURT BEFORE COMPLETION OF HIS SENTENCE AND
BECAUSE THE CONVICTION COULD BE USED FOR IMPEACHMENT AND SENTENCING
PURPOSES IN FUTURE CRIMINAL PROCEEDINGS.  APPELLANT STREET SIMILARLY
WAS UNABLE, DESPITE DILIGENT PROSECUTION OF HIS APPEALS, TO BRING HIS
CASE HERE WITHIN A YEAR OF HIS SENTENCING.  HE IS SUBJECT TO ALL OF THE
COLLATERAL PENALTIES TO WHICH SIBRON WAS LIABLE.  HENCE, BOTH GINSBERG
AND SIBRON DICTATE THAT HIS CASE IS NOT MOOT. 

/4/  ALS, WE ARE UNABLE TO READ THE OPINION OF THE COURT OF APPEALS
AS READING THE "WORDS" CLAUSE OUT OF THE STATUTE AND AUTHORITATIVELY
CONSTRUING IT TO REACH ONLY THE ACT OF FLAG BURNING, WHETHER AS A
PROTEST OR OTHERWISE. 

/5/  SEE, E.G., PARKER V. ILLINOIS, 333 U.S. 571, 574 (1948); CARTER
V. TEXAS, 177 U.S. 442, 447 (1900); R. ROBERTSON & F. KIRKHAM,
JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES SEC. 63, AT 112
& N. 1 (R. WOLFSON & P. KURLAND ED. 1951), AND OTHER CASES THERE
CITED. 

/6/  AT THE TIME OF APPELLANT'S TRIAL, SEC. 420-A OF THE NEW YORK
CODE OF CRIMINAL PROCEDURE PROVIDED THAT WITH RESPECT TO TRIAL RULINGS
OTHER THAN JURY INSTRUCTIONS: 

"AN EXCEPTION SHALL BE DEEMED TO HAVE BEEN TAKEN BY THE PARTY
ADVERSELY AFFECTED TO EVERY RULING EITHER BEFORE OR AFTER THE CAUSE IS
FINALLY SUBMITTED, WHEN SUCH PART, AT THE TIME WHEN SUCH RULING IS
SOUGHT OR MADE, MAKES KNOWN TO THE COURT OF JUDGE HIS POSITION THEREON
BY OBJECTION OR OTHERWISE." 

/7/  WE FIND UNPERSUASIVE THE STATE'S ARGUMENT THAT APPELLANT'S
OMISSION TO RAISE THE QUESTION OF THE CONSTITUTIONALITY OF THE "WORDS"
PROVISION IS SHOWN BY HIS FAILURE AT ANY STAGE TO INVOKE THE
EXCLUSIONARY RULE OF MIRANDA V. ARIZONA, 384 U.S. 436 (1966), WITH
RESPECT TO THE ADMISSION OF HIS WORDS INTO EVIDENCE.  FOR THE STATE
CONCEDES THAT APPELLANT'S WORDS WERE PROBATIVE AT LEAST WITH RESPECT TO
HIS UNLAWFUL INTENT IN BURNING THE FLAG, SEE BRIEF FOR APPELLEE 45-46,
AND APPELLANT THEREFORE WOULD HAVE HAD REASON TO INVOKE MIRANDA EVEN
HAD HE BELIEVED THE "WORDS" PART OF THE STATUTE TO BE IRRELEVANT. 

/8/  THERE CAN BE NO DOUBT THAT THE COURT'S DISPOSITION IN THOMAS,
INCLUDING ITS DECISION TO REVERSE THE CONVICTION AND NOT SIMPLY TO
REMAND FOR RESENTENCING, WAS CAREFULLY CONSIDERED.  THE CASE WAS
ORIGINALLY ARGUED DURING THE 1943 TERM BUT WAS ORDERED TO BE RESTORED
TO THE DOCKET AND REARGUED THE FOLLOWING TERM, WITH THE PARTIES
DIRECTED TO BRIEF, INTER ALIA, THE QUESTION WHETHER THE GENERAL
SOLICITATION WAS A BASIS OF THOMAS' CONVICTION. 

/9/  SEE, E.G., CLAASSEN V. UNITED STATES, 142 U.S. 140 (1891);
PINKERTON V. UNITED STATES, 328 U.S. 640 (1946); BARENBLATT V. UNITED
STATES, 360 U.S. 109 (1959). 

/10/  THE STATE ALSO CONTENDS THAT APPELLANT'S WORDS COULD NOT HAVE
BEEN A GROUND OF CONVICTION BECAUSE THEY OBVIOUSLY WERE NOT SPOKEN
"PUBLICLY," AS REQUIRED BY SEC. 1425, SUBD. 16, PAR. D. HOWEVER,
ALTHOUGH APPELLANT TESTIFIED THAT HE SPOKE SOLELY TO A POLICE OFFICER,
THE OFFICER HIMSELF GAVE EVIDENCE FROM WHICH THE TRIAL JUDGE MIGHT HAVE
CONCLUDED THAT APPELLANT'S REMARKS WERE MADE EITHER TO OR WITHIN
HEARING OF A SMALL CROWD.  SEE SUPRA, AT 478-579.  MOREOVER, THE SWORN
INFORMATION RECITED THAT APPELLANT "SHOUTED)" HIS WORDS ON A CITY
STREET, THEREBY APPARENTLY SATISFYING THE STATUTORY REQUIREMENT THAT
THE WORDS BE SAID "PUBLICLY." 

NOR DO WE THINK IT IMPOSSIBLE FOR THE TRIAL JUDGE TO HAVE FOUND THAT
BY HIS STATEMENTS, "WE DON'T NEED NO DAMN FLAG" AND "IF THEY LET THAT
HAPPEN TO MEREDITH WE DON'T NEED AN AMERICAN FLAG," APPELLANT "DEFIED)
. . . OR CAST CONTEMPT UPON (AN AMERICAN FLAG) BY WORDS" IN VIOLATION
OF SEC. 1425, SUBD. 16, PAR. D. 

/11/  THE STATE ADMITS THAT THERE WAS ONLY A "SINGLE AND CASUAL
REFERENCE TO THIS STATEMENT AT THE TRIAL; . . " BRIEF FOR APPELLEE 45. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

I DISSENT FROM THE REVERSAL OF THIS JUDGMENT, NOT ONLY BECAUSE THE
COURT IN MY OPINION HAS STRAINED TO BRING THIS TRIAL WITHIN STROMBERG
V. CALIFORNIA, 283 U.S. 359 (1931), BUT MORE PARTICULARLY BECAUSE IT
HAS DECLINED TO MEET AND RESOLVE THE BASIC QUESTION PRESENTED IN THE
CASE.  THAT QUESTION HAS BEEN VARIOUSLY STATED BY THE NEW YORK COURT OF
APPEALS AND THE PARTIES.  THE COURT BELOW EMPLOYED THE FOLLOWING
STATEMENT OF THE QUESTION: 

     "WE ARE CALLED UPON TO DECIDE WHETHER THE DELIBERATE ACT OF

  BURNING AN AMERICAN FLAG IN PUBLIC AS A 'PROTEST' MAY BE PUNISHED

  AS A CRIME."  /1/

APPELLANT TELLS US THAT THE ISSUE PRESENTED IS: 

"MAY NEW YORK STATE CONSTITUTIONALLY IMPOSE PENAL SANCTIONS UPON AN
INDIVIDUAL CHARGED WITH DESTROYING OR DAMAGING AN AMERICAN FLAG IN AN
ATTEMPT TO DRAMATIZE HIS CONCERN WITH SOCIAL CONDITIONS EXISTING IN THE
COUNTRY?"  /2/ NEW YORK'S STATEMENT OF THE ISSUE IS IDENTICAL: 

"MAY THE STATE OF NEW YORK CONSTITUTIONALLY IMPOSE PENAL SANCTIONS
UPON ONE WHO IS CHARGED WITH PUBLICLY AND DELIBERATELY DESECRATING AN
AMERICAN FLAG AS A MEANS OF DRAMATIZING HIS DISSATISFACTION WITH SOCIAL
CONDITIONS EXISTING WITHIN OUR COUNTRY?"  /3/ 

ANY DISTINCTIONS BETWEEN THE ABOVE QUESTIONS ARE WITHOUT A
SIGNIFICANT DIFFERENCE.  THE PARTIES OBVIOUSLY BELIEVE THAT THE
CONSTITUTIONALITY OF FLAG-DESECRATION STATUTES IS BEFORE THE COURT. 
THE QUESTION POSED BY THE COURT OF APPEALS IS THE MOST SUCCINCT.  CHIEF
JUDGE FULD, WRITING FOR A UNANIMOUS COURT OF APPEALS, ANSWERED THE
QUESTION SQUARELY; WE SHOULD DO LIKEWISE IF WE ARE TO MEET OUR
RESPONSIBILITY.  BUT THE COURT SPECIFICALLY REFUSES TO DECIDE THIS
ISSUE.  INSTEAD, IT SEARCHES MICROSCOPICALLY FOR THE OPPORTUNITY TO
DECIDE THE CASE ON THE PERIPHERAL STROMBERG GROUND, HOLDING THAT IT IS
IMPOSSIBLE TO DETERMINE THE BASIS FOR APPELLANT'S CONVICTION.  IN MY
OPINION A READING OF THE SHORT TRIAL RECORD LEAVES NO DOUBT THAT
APPELLANT WAS CONVICTED SOLELY FOR BURNING THE AMERICAN FLAG. 

        I. 

FROM THE BEGINNING TO THE END OF THE PROCEEDINGS BELOW THE PARTIES
PLACED ONLY TWO MATTERS IN ISSUE:  (1) IS BURNING THE FLAG PROTECTED
SYMBOLIC SPEECH AND (2) DID APPELLANT BURN THE FLAG FOR THE PURPOSE OF
CASTING CONTEMPT UPON IT OR DID HE BURN IT IN A DIGNIFIED MANNER?  /4/
THE INFORMATION ALLEGED THAT "SIDNEY STREET DID COMMIT THE CRIME OF
MALICIOUS MISCHIEF IN THAT THE DEFENDANT DID WILFULLY AND UNLAWFULLY
DEFILE, CAST CONTEMPT UPON AND BURN AN AMERICAN FLAG, IN VIOLATION OF
1425-16-D OF THE PENAL LAW, UNDER THE FOLLOWING CIRCUMSTANCES:  ON THE
AFORESAID DATE, PLACE AND TIME, THE DEFENDANT DID WILFULLY AND
UNLAWFULLY SET FIRE TO AN AMERICAN FLAG AND SHOUT, 'IF THEY DID THAT TO
MEREDITH, WE DON'T NEED AN AMERICAN FLAG.'"  ALTHOUGH THE COURT
STRESSES THE MENTION OF APPELLANT'S WORDS IN THE INFORMATION AS
INDICATIVE THAT HE WAS CONVICTED FOR UTTERING THESE WORDS, THE TRIAL
PROCEEDINGS DEMONSTRATE THAT THE WORDS WERE EMPLOYED ONLY TO SHOW
APPELLANT'S PURPOSE IN BURNING THE FLAG. 

AT THE OUTSET OF THE TRIAL APPELLANT'S COUNSEL MOVED TO DISMISS THE
INFORMATION, CLEARLY REVEALING THE THEORY OF APPELLANT'S DEFENSE THAT
FLAG BURNING IS CONSTITUTIONALLY PROTECTED AND THAT APPELLANT BURNED
THE FLAG IN A DIGNIFIED MANNER. 

     "MR. GOLDSTICK (APPELLANT'S COUNSEL):  BEFORE WE PLEAD TO THIS

  CASE I WOULD LIKE TO MAKE A MOTION TO DISMISS THE INFORMATION

  UPON THE GROUND IT DOES NOT STATE FACTS TO CONSTITUTE A CRIME ON

  THE FOLLOWING GROUNDS:  THE DEFENDANT WAS ENGAGED IN A

  CONSTITUTIONALLY PROTECTED ACTIVITY, TO WIT, FREEDOM OF SPEECH. 

  THE ALLEGATION SIMPLY SAYS THAT THE DEFENDANT DID WILFULLY AND

UNLAWFULLY SET FIRE TO AN AMERICAN FLAG AND DID SAY:  'IF THEY

  DID THAT TO MEREDITH WE DON'T NEED AN AMERICAN FLAG.'  UNDER THE

  FIRST AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES AND

  UNDER THE NEW YORK STATE CONSTITUTION ON FREEDOM OF SPEECH THEY

  PROVIDE FOR PROTEST IN MANY FORMS, WHETHER IT BE BY BURNING A

  FLAG, DEMONSTRATION OR PICKETING.  THIS IS A FORM OF

  DEMONSTRATION AND PROTEST. 

    "COURT:  YOU SAY BURNING THE FLAG IS A FORM OF DEMONSTRATION? 

     "MR. GOLDSTICK:  YES. 

     "COURT:  MOTION DENIED. 

     "MR. GOLDSTICK:  ALSO, THERE IS A FEDERAL STATUTE WHICH

  PROVIDES FOR BURNING THE FLAG.  I REFER YOUR HONOR-- 

     "COURT, INTERPOSING:  SO DOES SECTION 1425 PROVIDE FOR THE
LAWFUL DISPOSITION OF A FLAG. 

     "MR. GOLDSTICK, CONTINUING:  I REFER YOUR HONOR TO PAGE 6 OF
MY

  BRIEF, REFERRING TO THE U.S.C. THAT A FLAG, WHEN IT IS IN SUCH A

  CONDITION THAT IT IS NO LONGER A FITTING EMBLEM FOR DISPLAY,

  SHOULD BE DESTROYED IN A DIGNIFIED WAY, PREFERABLY BY BURNING. 

     "NOW, UNDER THE SUPREMACY CLAUSE, IF THERE IS ANY CONFLICT
WITH

  ANY STATUTE THE FEDERAL STATUTE TAKES PRECEDENCE; IF A STATE LAW

  IS IN CONFLICT WITH A FEDERAL LAW THE FEDERAL LAW TAKES

  PRECEDENCE.  THE FEDERAL LAW PROVIDES YOU MAY BURN AN AMERICAN

  FLAG; THEREFORE, NEW YORK STATES IS WITHOUT POWER TO MAKE A

  COMPLAINT AND CONVICT A MAN FOR THE BURNING OF AN AMERICAN FLAG. 

     "COURT:  MOTIONS DENIED.  THE QUESTION HERE WOULD BE WHETHER
HE

  BURNED IT BECAUSE IT WAS IN SUCH POOR CONDITION THAT IT SHOULD BE

  BURNED, OR IF IT WAS AN ILLEGAL DEMONSTRATION." 

DEFENSE COUNSEL INSISTED THAT BURNING THE FLAG, AN ACT HE EQUATED WITH
A DEMONSTRATION OR PICKETING, WAS A FORM OF SPEECH FOR WHICH HIS CLIENT
COULD NOT BE CONSTITUTIONALLY PUNISHED.  HIS COLLOQUY WITH THE TRIAL
JUDGE DOES NOT GIVE EVEN THE SLIGHTEST SUGGESTION THAT APPELLANT WAS
BEING PROSECUTED FOR WORDS HE MIGHT HAVE SPOKEN.  THAT DEFENSE COUNSEL
BELIEVED THAT APPELLANT'S ACT, NOT HIS WORDS, WAS AT ISSUE IS FURTHER
DEMONSTRATED BY COUNSEL'S PRE-EMPTION ARGUMENT.  THE FEDERAL STATUTE TO
WHICH COUNSEL REFERRED, 56 STAT. 377, C. 435, 36 U.S.C. 173 ET SEQ.,
CONCERNS THE MANNER IN WHICH THE FLAG IS TO BE DISPLAYED AND IN SEC.
4(J), 56 STAT. 380, 36 U.S.C. 176(J), MANDATES THAT THE FLAG, WHEN NO
LONGER A FITTING EMBLEM FOR DISPLAY, SHOULD BE DESTROYED IN A DIGNIFIED
WAY, PREFERABLY BY BURNING.  AT THE TIME OF APPELLANT'S TRIAL THE
FEDERAL PROHIBITION OF FLAG DESECRATION, WHICH IN ALL MATERIAL
PARTICULARS WAS IDENTICAL TO NEW YORK'S, APPLIED ONLY TO THE DISTRICT
OF COLUMBIA AND COULD THEREFORE NOT HAVE PRE-EMPTED STATE LEGISLATION
ON THE SAME SUBJECT.  /5/ 

THE TRIAL TESTIMONY CONFIRMS MY BELIEF THAT APPELLANT'S ACT WAS THE
SOLE BASIS FOR THE VERDICT AS IT CONTAINS NOTHING TO SUGGEST THAT
EITHER THE PARTIES OR THE TRIAL JUDGE BELIEVED THAT APPELLANT WAS ON
TRIAL FOR HIS WORDS.  THE ARRESTING OFFICER TESTIFIED THAT, AS HE WAS
INVESTIGATING THE SOURCE OF A FIRE, HE HEARD APPELLANT SAY, "WE DON'T
NEED NO DAMN FLAG."  THE OFFICER THEN ASKED APPELLANT WHETHER HE WAS
RESPONSIBLE FOR THE BURNING OF THE FLAG; APPELLANT REPLIED THAT HE WAS
AND THAT:  "IF THEY LET THAT HAPPEN TO MEREDITH WE DON'T NEED AN
AMERICAN FLAG."  THE OFFICER'S TESTIMONY CONCLUDED WITH A DESCRIPTION
OF THE NUMBER OF PEOPLE IN THE VICINITY AND THE EXTINGUISHING OF THE
FIRE.  DURING CROSS-EXAMINATION OF THE OFFICER, DEFENSE COUNSEL ASKED
NOT ONE QUESTION CONCERNING WHAT, IF ANYTHING, APPELLANT SAID. 

APPELLANT DID NOT DISPUTE THE PROSECUTION'S VERSION OF THE FACTS. 
HE TESTIFIED THAT, HEARING THE NEWS REPORT OF MEREDITH'S SHOOTING, HE
REMOVED A FLAG FROM HIS DRESSER DRAWER, WALKED TO THE CORNER OF ST.
JAMES PLACE AND LAFAYETTE AVENUE AND BURNED THE FLAG.  ACCORDING TO
APPELLANT, HE MADE NO REMARKS TO THE CROWD THAT HAD GATHERED AND HIS
REFERENCE TO MEREDITH WAS MADE TO THE POLICE OFFICER.  CROSS
EXAMINATION BY THE PROSECUTION EXPLORED APPELLANT'S MOTIVATION FOR
BURNING THE FLAG; NO MENTION WAS MADE OF WORDS APPELLANT MIGHT HAVE
SPOKEN. 

WE ARE TOLD BY THE COURT THAT AT LEAST IN PART APPELLANT'S
CONVICTION RESTS ON HIS WORDS.  IF IT DOES, THE TRIAL RECORD IS
STRANGELY SILENT, FOR THE STATE MADE NO ATTEMPT TO PROVE THAT
APPELLANT'S WORDS WERE HEARD BY THE CROWD.  APPELLANT INSISTED THAT HE
SPOKE ONLY TO THE OFFICER, YET THE NEW YORK STATUTE REQUIRES THAT THE
ACCUSED'S FLAG DESECRATION BY PUBLIC.  THE STATE ARGUES, WITHOUT
CONTRADICTION BY APPELLANT, THAT WORDS SPOKEN TO A POLICEMAN WOULD NOT
BE SPOKEN PUBLICLY FOR PURPOSES OF THE STATUTE.  /6/  I THINK IT
EVIDENT THAT APPELLANT'S WORDS WERE MENTIONED IN THE INDICTMENT AND
INTRODUCED AT TRIAL ONLY TO SHOW THAT HE BURNED THE FLAG WITH AN INTENT
TO DESECRATE IT, A NECESSARY ELEMENT OF THE STATE'S CASE.  IN THE
ABSENCE OF SUCH EVIDENCE, THE STATE WOULD HAVE PROVED THAT APPELLANT
BURNED A FLAG BUT WOULD HAVE LEFT OPEN THE POSSIBILITY THAT THE BURNING
WAS DESIGNED TO DESTROY IT IN A DIGNIFIED MANNER.  THE FACT THAT
APPELLANT'S WORDS SUPPLIED AN ELEMENT OF THE STATE'S CASE DOES NOT MEAN
THAT HE WAS CONVICTED FOR UTTERING THESE WORDS.  SEE GIBONEY V. EMPIRE
STORAGE & ICE CO., 336 U.S. 490, 498 (1949). 

NEITHER THE PROSECUTION NOR THE DEFENSE NOR THE NEW YORK COURTS
ATTACHED ANY INDEPENDENT SIGNIFICANCE TO HIS WORDS.  TO INTERPRET THIS
RECORD IN ANY OTHER MANNER IGNORES THE VERY BASIC FACT THAT THE TRIAL
JUDGE AND THE PARTIES THOUGHT THAT THERE WAS ONE ISSUE IN THIS TRIAL--
WHETHER APPELLANT COULD BE CRIMINALLY PUNISHED FOR BURNING THE FLAG. 
THIS RECORD IS NOT SUFFICIENTLY AMBIGUOUS TO JUSTIFY THE COURT'S
SPECULATION THAT THE VERDICT BELOW MIGHT REST EVEN IN PART UPON A
CONVICTION FOR APPELLANT'S WORDS. 

        II. 

I DO NOT BELIEVE THAT THE STROMBERG LINE OF CASES ALLOWS US TO AVOID
DECIDING WHETHER FLAG BURNING IS PROTECTED BY THE FIRST AMENDMENT. 
THIS CASE DOES NOT FIT THE STROMBERG MOLD. 

MISS STROMBERG WAS ONE OF THE SUPERVISORS OF A CHILDREN'S SUMMER
CAMP.  SHE DIRECTED A DAILY CEREMONY DURING WHICH THE CHILDREN RAISED
THE SOVIET FLAG AND RECITED A PLEDGE OF ALLEGIANCE "TO THE WORKER'S RED
FLAG."  A CALIFORNIA STATUTE MADE IT A CRIMINAL OFFENSE FOR ANY PERSON
TO DISPLAY A RED FLAG (1) AS A SYMBOL OF OPPOSITION TO ORGANIZED
GOVERNMENT OR (2) AS AN INVITATION TO ANARCHISTIC ACTION OR (3) AS AN
AID TO PROPAGANDA OF A SEDITIOUS CHARACTER.  THE TRIAL JUDGE, FOLLOWING
THE EXPRESS TERMS OF THE STATUTE, CHARGED THAT MISS STROMBERG COULD BE
CONVICTED IF SHE DISPLAYED A RED FLAG FOR ANY ONE OF THE THREE
PROHIBITED PURPOSES.  THE COURT FIRST DETERMINED THAT A CRIMINAL
CONVICTION FOR DISPLAY OF A RED FLAG AS A SYMBOL OF OPPOSITION TO
ORGANIZED GOVERNMENT WOULD IMPINGE UPON FIRST AMENDMENT FREEDOMS. 
SINCE THE JURY CHARGE WAS DISJUNCTIVE, I.E., MISS STROMBERG COULD BE
CONVICTED IF THE JURY FOUND THAT SHE CONDUCTED THE CEREMONY FOR ANY OF
THE THREE STATUTORILY PROHIBITED GOALS, IT WAS POSSIBLE THAT HER
CONVICTION RESTED TOTALLY UPON AN ACT ENTITLED TO CONSTITUTIONAL
PROTECTION.  PRESUMABLY, GIVEN THE JURY'S GENERAL VERDICT, IT COULD
HAVE CONVICTED MISS STROMBERG FOR RAISING A RED FLAG SOLELY AS A SYMBOL
OF OPPOSITION TO ORGANIZED GOVERNMENT BUT NOT AS EITHER AN INVITATION
TO ANARCHISTIC ACTION OR AN AID TO PROPAGANDA OF A SEDITIOUS
CHARACTER. 

THE TEACHING OF STROMBERG IS THAT, IF THERE IS ANY POSSIBILITY THE
GENERAL VERDICT BELOW RESTS ON SPEECH OR CONDUCT ENTITLED TO
CONSTITUTIONAL PROTECTION, THEN THE CONVICTION MUST BE REVERSED.  THE
STROMBERG ANALYSIS CANNOT BE APPLIED TO APPELLANT'S CONVICTION AS THE
FACTUAL PATTERNS IN THE TWO CASES ARE DISTINCT.  THE RECORD LEAVES NO
DOUBT THAT APPELLANT DID BURN THE FLAG.  NOR CAN APPELLANT ARGUE THAT
HIS ACT WAS NOT AN ACT OF DESECRATION.  THE TRIAL JUDGE EMPHATICALLY
STATED THAT THE ISSUE WAS WHETHER APPELLANT BURNED THE FLAG TO DESTROY
IT IN A DIGNIFIED MANNER OR TO CAST CONTEMPT UPON IT.  APPELLANT'S
CONVICTION THEREFORE MUST BE BASED UPON A FINDING THAT HE DESECRATED
THE FLAG BY BURNING AND NEITHER HE NOR THE COURT SUGGESTS OTHERWISE. 
WE ARE NOT CONFRONTED WITH A JURY TRIAL AND THE CONSEQUENT INABILITY TO
DETERMINE THE BASIS FOR THE VERDICT BELOW.  THE TRIAL JUDGE AT THE VERY
OUTSET OF THE TRIAL MADE KNOWN HIS VIEW THAT APPELLANT'S MOTIVATION FOR
BURNING THE FLAG WAS THE PROBATIVE ISSUE.  COMBINING THIS ACT OF
BURNING WITH A VERBALIZATION OF THE REASONS FOR IT DOES NOT ALLOW THE
COURT TO AVOID DETERMINING THE CONSTITUTIONALITY OF APPELLANT'S
CONDUCT.  SINCE THERE CAN BE NO CLAIM THAT APPELLANT WAS CONVICTED FOR
HIS SPEECH, STROMBERG SIMPLY DOES NOT APPLY. 

MY ANALYSIS IS CONFIRMED BY AN EXAMINATION OF THE OTHER CASES UPON
WHICH THE COURT RELIES.  WILLIAMS V. NORTH CAROLINA, 317 U.S. 287
(1942), PRESENTS A FACTUAL PATTERN IDENTICAL TO STROMBERG.  WILLIAMS, A
RESIDENT OF NORTH CAROLINA, OBTAINED A NEVADA DIVORCE AND THEN
REMARRIED IN NEVADA.  UPON HIS RETURN TO NORTH CAROLINA, WILLIAMS WAS
CONVICTED OF BIGAMOUS COHABITATION.  THE JURY WAS CHARGED THAT IT COULD
CONVICT WILLIAMS IF IT FOUND EITHER THAT HE PROCURED THE DIVORCE BASED
UPON SUBSTITUTED SERVICE OR THAT HE WENT TO NEVADA NOT TO ESTABLISH A
BONA FIDE RESIDENCE BUT RATHER TO OBTAIN A DIVORCE THROUGH A FRAUD UPON
THE NEVADA COURTS.  HOLDING THAT THE FULL FAITH AND CREDIT CLAUSE
REQUIRED NORTH CAROLINA TO RESPECT WILLIAMS' NEVADA DIVORCE EVEN THOUGH
ACQUIRED BY SUBSTITUTED SERVICE, THE COURT REVERSED WILLIAMS'
CONVICTION SINCE IT WAS POSSIBLE THAT THE JURY FOUND THE DIVORCE WAS
NOT PROCURED BY FRAUD YET CONVICTED WILLIAMS.  UNDER THIS STATE OF
FACTS, THE CONVICTION COULD HAVE BEEN BASED UPON THE ACQUISITION OF A
DIVORCE NORTH CAROLINA WAS CONSTITUTIONALLY COMPELLED TO HONOR. 

TERMINIELLO V. CHICAGO, 337 U.S. 1 (1949), REFLECTS THE SAME
APPROACH.  TERMINIELLO WAS CHARGED WITH DISORDERLY CONDUCT.  THE JURY
WAS ALLOWED TO CONVICT IF IT FOUND THAT TERMINIELLO'S SPEECH EITHER
STIRRED THE PUBLIC TO ANGER OR CONSTITUTED "FIGHTING WORDS."  SINCE
ONLY THE LATTER MAY BE CONSTITUTIONALLY PROHIBITED, THE COURT
REVERSED.  IT WAS POSSIBLE THAT THE JURY FOUND THAT TERMINIELLO'S
SPEECH MERELY STIRRED THE PUBLIC TO ANGER YET CONVICTED HIM. 
TERMINIELLO COULD HAVE BEEN CONVICTED FOR CONSTITUTIONALLY PROTECTED
CONDUCT; HE WAS THEREFORE ENTITLED TO A REVERSAL.  YATES V. UNITED
STATES, 354 U.S. 298 (1957), ALSO CONFORMS TO THIS PATTERN.  CHARGED
WITH A VIOLATION OF THE SMITH ACT, YATES WAS CONVICTED UNDER
INSTRUCTIONS WHICH MADE EITHER "ADVOCACY" OR "ORGANIZING" A STATUTORY
VIOLATION.  THE COURT DECIDED THAT THE JURY INSTRUCTION WITH REGARD TO
THE ORGANIZING CHARGE WAS ERRONEOUS; SINCE THE JURY COULD HAVE
CONVICTED YATES FOR ORGANIZING EVEN IF IT FOUND THAT HE WAS NOT GUILTY
OF ADVOCACY, THE CONVICTION WAS REVERSED.     THE COURT DOES NOT,
HOWEVER, BASE ITS REVERSAL ONLY UPON A MISAPPLICATION OF STROMBERG. 
RELYING ALSO ON THOMAS V. COLLINS, 323 U.S. 516 (1945), THE COURT HOLDS
THAT EVEN IF "THE RECORD PRECLUDES THE INFERENCE THAT APPELLANT'S
CONVICTION MIGHT HAVE BEEN BASED SOLELY ON HIS WORDS, WE ARE STILL
BOUND TO REVERSE IF THE CONVICTION COULD HAVE BEEN BASED UPON BOTH HIS
WORDS AND HIS ACT."  ANTE, AT 587.  MY READING OF THOMAS V. COLLINS
INDICATES, HOWEVER, THAT THOMAS DOES NOT SERVE AS JUSTIFICATION FOR THE
COURT'S DISPOSITION OF THIS CASE.  /7/  IN THOMAS A UNION ORGANIZER WAS
HELD IN CONTEMPT, FINED, AND IMPRISONED FOR DISOBEYING A STATE COURT
ORDER ENJOINING HIM FROM VIOLATING A TEXAS STATUTE.  THE STATUTE
REQUIRED THAT LABOR ORGANIZERS REGISTER WITH AND PROCURE AN ORGANIZER'S
CARD FROM A DESIGNATED TEXAS OFFICIAL BEFORE SOLICITING MEMBERSHIPS IN
LABOR UNIONS.  WITHOUT EITHER REGISTERING OR PROCURING A CARD, THE
ORGANIZER MADE A SPEECH BEFORE A GROUP OF WORKERS.  HE EXTOLLED THE
VIRTUES OF UNION MEMBERSHIP IN GENERAL TERMS AND ALSO ASKED A SPECIFIC
INDIVIDUAL TO BECOME A UNION MEMBER.  AS I READ THE CASE, THOMAS HOLDS
THAT BOTH THE GENERAL SOLICITATION AND THE SOLICITATION OF A NAMED
INDIVIDUAL WERE WITHIN THE PROTECTION OF THE FIRST AMENDMENT: 

"THE OCCASION WAS CLEARLY PROTECTED.  THE SPEECH WAS AN ESSENTIAL
PART OF THE OCCASION, UNLESS ALL MEANING AND PURPOSE WERE TO BE TAKEN
FROM IT.  AND THE INVITATIONS, BOTH GENERAL AND PARTICULAR, WERE PARTS
OF THE SPEECH, INSEPARABLE INCIDENTS OF THE OCCASION AND OF ALL THAT
WAS SAID OR DONE.  . . . HOW ONE MIGHT 'LAUD UNIONISM,' AS THE STATE
AND THE STATE SUPREME COURT CONCEDE THOMAS WAS FREE TO DO, YET IN THESE
CIRCUMSTANCES NOT IMPLY AN INVITATION, IS HARD TO CONCEIVE.  THIS IS
THE NUB OF THE CASE, WHICH THE STATE FAILS TO MEET BECAUSE IT CANNOT DO
SO."  ID., AT 534-535.  HAVING SO HELD, IT WAS UNNECESSARY FOR THE
COURT TO DETERMINE IF AN INDIVIDUAL SOLICITATION COULD HAVE BEEN
ENJOINED.  THE UNION ORGANIZER THEREFORE WAS ENTITLED TO RELIEF WITHOUT
REGARD TO WHETHER HIS CONVICTION WAS BASED UPON THE GENERAL OR THE
INDIVIDUAL SOLICITATION. 

I REITERATE MY BELIEF THAT APPELLANT WAS CONVICTED FOR HIS ACT NOT
HIS WORDS.  STROMBERG AND THE CASES BASED UPON IT DO NOT ALLOW US THE
LUXURY OF REFUSING TO TREAT APPELLANT'S CLAIM THAT THE BURNING OF THE
FLAG AS A PROTEST IS WORTHY OF CONSTITUTIONAL PROTECTION. 

        III. 

I AM IN COMPLETE AGREEMENT WITH THE GENERAL RULE THAT THIS COURT
SHOULD NOT TREAT BROAD CONSTITUTIONAL QUESTIONS WHEN NARROW ONES WILL
SUFFICE TO DISPOSE OF THE LITIGATION.  HOWEVER, WHERE ONLY THE BROAD
QUESTION IS PRESENTED, IT IS OUR TASK AND OUR RESPONSIBILITY TO
CONFRONT THAT QUESTION SQUARELY AND RESOLVE IT.  IN A TIME WHEN THE
AMERICAN FLAG HAS INCREASINGLY BECOME AN INTEGRAL PART OF PUBLIC
PROTESTS, THE CONSTITUTIONALITY OF THE FLAG-DESECRATION STATUTES
ENACTED BY ALL OF THE STATES /8/  AND CONGRESS /9/  IS A MATTER OF THE
MOST WIDESPREAD CONCERN.  BOTH THOSE WHO SEEK CONSTITUTIONAL SHELTER
FOR ACTS OF FLAG DESECRATION PERPETRATED IN THE COURSE OF A POLITICAL
PROTEST AND THOSE WHO MUST ENFORCE THE LAW ARE ENTITLED TO KNOW THE
SCOPE OF CONSTITUTIONAL PROTECTION.  THE COURT'S EXPLICIT RESERVATION
OF THE CONSTITUTIONALITY OF FLAG-BURNING PROHIBITIONS ENCOURAGES OTHERS
TO TEST IN THE STREETS THE POWER OF OUR STATES AND NATIONAL GOVERNMENT
TO IMPOSE CRIMINAL SANCTIONS UPON THOSE WHO WOULD DESECRATE THE FLAG. 

I BELIEVE THAT THE STATES AND THE FEDERAL GOVERNMENT DO HAVE THE
POWER TO PROTECT THE FLAG FROM ACTS OF DESECRATION AND DISGRACE.  BUT
BECAUSE THE COURT HAS NOT MET THE ISSUE, IT WOULD SERVE NO PURPOSE TO
DELINEATE MY REASONS FOR THIS VIEW.  HOWEVER, IT IS DIFFICULT FOR ME TO
IMAGINE THAT, HAD THE COURT FACED THIS ISSUE, IT WOULD HAVE CONCLUDED
OTHERWISE.  SINCE I AM SATISFIED THAT THE CONSTITUTIONALITY OF
APPELLANT'S CONDUCT SHOULD BE RESOLVED IN THIS CASE AND AM CONVINCED
THAT THIS CONDUCT CAN BE CRIMINALLY PUNISHED, I DISSENT. 

/1/  PEOPLE V. STREET, 20 N.Y.2D 231, 234, 229 N.E.2D 187, 189
(1967). 

/2/  BRIEF FOR APPELLANT 2.  APPELLANT ALSO SUGGESTS THAT THE NEW
YORK STATUTE IS UNCONSTITUTIONALLY VAGUE.  THE COURT DOES NOT DEAL WITH
THIS ISSUE, NOR DO I. 

/3/  BRIEF FOR APPELLEE 5. 

/4/  THE APPENDIX TO THIS OPINION REPRODUCES IN FULL THOSE PORTIONS
OF THE TRIAL RECORD WHICH HAVE ANY CONCEIVABLE BEARING UPON THE BASIS
FOR THE VERDICT. 

/5/  SEE 4 U.S.C. 3.  FEDERAL LEGISLATION ENACTING FLAG-DESECRATION
PROHIBITIONS ON A NATIONAL SCALE WAS NOT PASSED UNTIL JULY 5, 1968, TWO
YEARS AFTER APPELLANT'S TRIAL.  THIS LEGISLATION SPECIFICALLY DOES NOT
PRE-EMPT STATE FLAG-BURNING STATUTES.  SEE 82 STAT. 291, 18 U.S.C.
700(C) (1964 ED., SUPP. IV). 

/6/  IT APPEARS THAT THE NEW YORK COURTS WOULD SO CONSTRUE THEIR
LEGISLATION.  SEE PEOPLE V. LA SISTER, 9 MISC.2D 518, 170 N.Y.S.2D 702
(CT. SPEC. SESS. 1958); CF. STATE V. PEACOCK, 138 ME. 339, 25 A.2D 491
(1942). 

/7/  I NEED NOT CONSIDER TO WHAT EXTENT THE THOMAS COURT'S IMPLICIT
ASSUMPTION THAT THOMAS COULD TEST THE CONSTITUTIONALITY OF THE
RESTRAINING ORDER WITHOUT FIRST ATTEMPTING TO SECURE JUDICIAL RELIEF IS
INCONSISTENT WITH WALKER V. CITY OF BIRMINGHAM, 388 U.S. 307 (1967);
SEE ID., AT 336 (DOUGLAS, J., DISSENTING). 

/8/  DESECRATION OF THE FLAG, HEARINGS ON H.R. 271 BEFORE
SUBCOMMITTEE NO. 4 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 90TH CONG.,
1ST SESS., SER.  4, 324-346 (1967). 

/9/  82 STAT. 291, 18 U.S.C. 700 (1964 ED., SUPP. IV). 

        APPENDIX TO OPINION OF WARREN, C.J., DISSENTING. 

     "MR. GOLDSTICK (APPELLANT'S COUNSEL):  BEFORE WE PLEAD TO THIS

  CASE I WOULD LIKE TO MAKE A MOTION TO DISMISS THE INFORMATION

 UPON THE GROUND IT DOES NOT STATE FACTS TO CONSTITUTE A CRIME ON

  THE FOLLOWING GROUNDS:  THE DEFENDANT WAS ENGAGED IN A

  CONSTITUTIONALLY PROTECTED ACTIVITY, TO WIT, FREEDOM OF SPEECH. 

  THE ALLEGATION SIMPLY SAYS THAT THE DEFENDANT DID WILFULLY AND

  UNLAWFULLY SET FIRE TO AN AMERICAN FLAG AND DID SAY:  'IF THEY

  DID THAT TO MEREDITH WE DON'T NEED AN AMERICAN FLAG.'  UNDER THE

  FIRST AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES AND

  UNDER THE NEW YORK STATE CONSTITUTION ON FREEDOM OF SPEECH THEY

  PROVIDE FOR PROTEST IN MANY FORMS, WHETHER IT BE BY BURNING A

FLAG, DEMONSTRATION OR PICKETING.  THIS IS A FORM OF

  DEMONSTRATION AND PROTEST. 

     "COURT:  YOU SAY BURNING THE FLAG IS A FORM OF DEMONSTRATION? 

     "MR. GOLDSTICK:  YES. 

     "COURT:  MOTION DENIED. 

     "MR. GOLDSTICK:  ALSO, THERE IS A FEDERAL STATUTE WHICH

  PROVIDES FOR BURNING THE FLAG.  I REFER YOUR HONOR-- 

     "COURT, INTERPOSING:  SO DOES SECTION 1425 PROVIDE FOR THE
LAWFUL DISPOSITION OF A FLAG. 

     "MR. GOLDSTICK, CONTINUING:  I REFER YOUR HONOR TO PAGE 6 OF
MY

  BRIEF, REFERRING TO THE U.S.C. THAT A FLAG, WHEN IT IS IN SUCH A

  CONDITION THAT IT IS NO LONGER A FITTING EMBLEM FOR DISPLAY,

  SHOULD BE DESTROYED IN A DIGNIFIED WAY, PREFERABLY BY BURNING. 

     "NOW, UNDER THE SUPREMACY CLAUSE, IF THERE IS ANY CONFLICT
WITH

ANY STATUTE THE FEDERAL STATUTE TAKES PRECEDENCE; IF A STATE LAW

  IS IN CONFLICT WITH A FEDERAL LAW THE FEDERAL LAW TAKES

  PRECEDENCE.  THE FEDERAL LAW PROVIDES YOU MAY BURN AN AMERICAN

  FLAG; THEREFORE, NEW YORK STATE IS WITHOUT POWER TO MAKE A

  COMPLAINT AND CONVICT A MAN FOR THE BURNING OF AN AMERICAN FLAG. 

     "COURT:  MOTIONS DENIED.  THE QUESTION HERE WOULD BE WHETHER
HE

  BURNED IT BECAUSE IT WAS IN SUCH POOR CONDITION THAT IT SHOULD BE

  BURNED, OR IF IT WAS AN ILLEGAL DEMONSTRATION. 

     "MR. GOLDSTICK:  UNDER THE SUPREMACY-- 

     "COURT, INTERPOSING:  NEXT MOTION. 

     "NO MORE ARGUMENT, PLEASE. 

     "MR. GOLDSTICK:  I PLEAD THE DEFENDANT NOT GUILTY AND TAKE

  EXCEPTION TO YOUR HONOR'S RULINGS. 

     "COURT:  PROCEED.  YOU MAY SIT DOWN, COUNSELOR.  NOW, WE HAVE

  TWO CASES.  ONE IS DISORDERLY CONDUCT AND ONE IS MALICIOUS

  MISCHIEF. 

     "MR. GOLDSTICK:  I SEE NOTHING IN THE INFORMATION REGARDING A
CHARGE OF DISORDERLY CONDUCT. 

     "COURT:  WE HAVE TWO CHARGES BEFORE ME. 

     "SHOW THE COMPLAINTS TO COUNSEL. 

     "MR. BONOMO (THE PROSECUTOR):  WE HAVE TO SEPARATE
COMPLAINTS. 

  (HANDING PAPERS TO MR. GOLDSTICK.) 

     "MR. GOLDSTICK:  I PLEAD NOT GUILTY TO THE DISORDERLY CONDUCT
CHARGE, TOO, YOUR HONOR. 

     "COURT:  ARE YOU READY FOR TRIAL IN EACH CASE? 

     "MR. GOLDSTICK:  YES. 

    "COURT:  DO YOU STIPULATE THAT THE TWO CASES WILL BE TRIED

  TOGETHER AND THE FACTS ADDUCED IN ONE WILL BE APPLIED TO THE

  OTHER WHENEVER NECESSARY, AND THERE WILL BE SEPARATE FINDINGS ON

  THE FACTS AND THE LAW AND SEPARATE JUDGMENTS MAY BE RENDERED? 

     "MR. GOLDSTICK:  I SO STIPULATE. 

     "COURT:  LET US PROCEED. 

     "MR. BONOMO:  I WILL CALL PATROLMAN JAMES COPELAND." 

(OFFICER COPELAND TESTIFIED ON DIRECT EXAMINATION CONCERNING THE
INVESTIGATION OF THE SOURCE OF A FIRE AND HIS SUBSEQUENT DISCOVERY THAT
APPELLANT HAD BURNED A FLAG.) 

     "MR. BONOMO:  THAT'S ALL. 

     "MR. GOLDSTICK:  BEFORE I CROSS-EXAMINE I MOVE TO DISMISS BOTH

  CHARGES UPON THE GROUND THE PEOPLE FAILED TO MAKE OUT A PRIMA

  FACIE CASE. 

     "COURT:  ARE YOU GOING TO CROSS-EXAMINE? 

     "MR. GOLDSTICK:  YES, BUT I AM MAKING A MOTION BEFORE

  CROSS-EXAMINATION.  "COURT:  YOU BETTER CROSS-EXAMINE." 

(THE CROSS-EXAMINATION OF OFFICER COPELAND EXPLORED THE SIZE OF THE
CROWD THAT HAD GATHERED; NO MENTION WAS MADE OF APPELLANT'S WORDS.) 

        .    .          .          . 

     "MR. GOLDSTICK:  NO FURTHER QUESTIONS. 

     "MR. BONOMO:  PEOPLE'S CASE, IN EACH CASE. 

     "MR. GOLDSTICK:  I RENEW MY MOTIONS TO DISMISS UPON THE GROUND

  THE PEOPLE FAILED TO PROVE A PRIMA FACIE CASE. 

     "COURT:  MOTION DENIED AS TO EACH CASE. 

   "MR. GOLDSTICK:  EXCEPTION.  THE DEFENDANT WILL TAKE THE
STAND." 

APPELLANT THEN GAVE HIS VERSION OF THE INCIDENT.  REPRODUCED BELOW
IS HIS TESTIMONY CONCERNING THE WORDS SPOKEN.) 

        .          .          .          . 

     "Q.  DID THE OFFICER SPEAK TO YOU OR DID YOU SPEAK TO HIM?  A.
HE SPOKE TO ME. 

     "Q.  WHAT DID HE SAY?  A. HE ASKED ME IF I SET FIRE TO THE
FLAG.  I SAID YES. 

     "Q.  THEN WHAT HAPPENED?  A. I SAID:  'IF THEY DO WHAT THEY
HAD

  ( ) TO MEREDITH WE DON'T NEED THIS FLAG.' 

      "Q.  WHILE YOU WERE BURNING THIS FLAG DID ANYBODY SAY
ANYTHING

  TO YOU OTHER THAN THIS POLICE OFFICER?  A. NOBODY. 

     "Q.  DID ANYBODY STOP?  A. I NOTICED NO UNUSUAL CROWD. 

     "Q.  WHERE IS THAT CORNER?  A. ST. JAMES AND LAFAYETTE. 

     "Q.  WERE YOU ON THE CURB OR IN THE STREET?  A. I WAS ON THE

  CURB.  THE FLAG WAS LAYING ON THE CURB. 

     "Q.  WHEN THE POLICE OFFICER CAME UP TO YOU WERE YOU STILL BY
THE FLAG?  A. YES. 

     "Q.  THE FLAG WAS STILL BURNING WHEN THE OFFICER CAME?  A.
YES. 

     "Q.  OTHER THAN SAYING TO THE POLICE OFFICER 'IF THEY DID THAT

TO MEREDITH WE DON'T NEED AN AMERICAN FLAG,' DID YOU SPEAK TO

  ANYBODY ELSE AT THE TIME?  A. NO. 

     "MR. GOLDSTICK:  NO FURTHER QUESTIONS." 

(CROSS-EXAMINATION OF APPELLANT CONTAINS NO REFERENCE TO ANY OF HIS
WORDS.) 

        .         .          .          . 

     "MR. BONOMO:  THAT'S ALL. 

     "MR. GOLDSTICK:  THE DEFENDANT RESTS. 

"MR. BONOMO:  THE PEOPLE REST. 

     "MR. GOLDSTICK:  I MOVE TO DISMISS ON ALL THE CONSTITUTIONAL

  GROUNDS PREVIOUSLY MADE, ON ALL THE GROUNDS PROVIDED FOR IN THE

  CODE OF CRIMINAL PROCEDURE, AND ALSO UPON THE GROUND THE PEOPLE

FAILED TO PROVE A CASE BEYOND A REASONABLE DOUBT. 

"COURT:  ON THE CHARGE OF DISORDERLY CONDUCT THE DEFENDANT IS

  ACQUITTED; ON THE CHARGE OF MALICIOUS MISCHIEF THE DEFENDANT IS

  CONVICTED. 

     "MR. GOLDSTICK:  MAY WE HAVE NEXT TUESDAY FOR SENTENCE? 

     "COURT:  NO, THAT IS NOT ENOUGH TIME.  AUGUST 9TH FOR
SENTENCE; BAIL CONTINUED." 

MR. JUSTICE BLACK, DISSENTING. 

I AGREE WITH THE EXCELLENT OPINION WRITTEN BY CHIEF JUDGE FULD FOR A
UNANIMOUS COURT OF APPEALS, UPHOLDING THE NEW YORK STATUTE WHICH THIS
COURT NOW HOLDS UNCONSTITUTIONAL AS APPLIED.  THE ENTIRE STATE COURT
CONSTRUED THE STATUTE AS APPLIED TO THIS APPELLANT AS MAKING IT AN
OFFENSE PUBLICLY TO BURN AN AMERICAN FLAG IN ORDER TO PROTEST SOMETHING
THAT HAD OCCURRED.  IN OTHER WORDS THE OFFENSE WHICH THAT COURT
SUSTAINED WAS THE BURNING OF THE FLAG AND NOT THE MAKING OF ANY
STATEMENTS ABOUT IT.  THE COURT SEEMS TO CONSOLE ITSELF FOR HOLDING
THIS NEW YORK FLAG-BURNING LAW UNCONSTITUTIONAL AS APPLIED BY SAYING
THAT, AS IT READS THE RECORD, THE CONVICTION COULD HAVE BEEN BASED ON
THE WORDS SPOKEN BY THE APPELLANT AS HE WAS BURNING THE FLAG.  THOSE
WORDS INDICATED A DESIRE ON APPELLANT'S PART OF DEGRADE AND DEFAME THE
FLAG.  IF I COULD AGREE WITH THE COURT'S INTERPRETATION OF THE RECORD
AS TO THE POSSIBILITY OF THE CONVICTION'S RESTING ON THESE SPOKEN
WORDS, I WOULD FIRMLY AND AUTOMATICALLY AGREE THAT THE LAW IS
UNCONSTITUTIONAL.  I WOULD NOT FEEL CONSTRAINED, AS THE COURT SEEMS TO
BE, TO SEARCH MY IMAGINATION TO SEE IF I COULD THINK OF INTERESTS THE
STATE MAY HAVE IN SUPPRESSING THIS FREEDOM OF SPEECH.  I WOULD NOT
BALANCE AWAY THE FIRST AMENDMENT MANDATE THAT SPEECH NOT BE ABRIDGED IN
ANY FASHION WHATSOEVER.  BUT I ACCEPT THE UNANIMOUS OPINION OF THE NEW
YORK COURT OF APPEALS THAT THE CONVICTION DOES NOT AND COULD NOT HAVE
RESTED MERELY ON THE SPOKEN WORDS BUT THAT IT RESTED ENTIRELY ON THE
FACT THAT THE DEFENDANT HAD PUBLICLY BURNED THE AMERICAN FLAG-- AGAINST
THE LAW OF THE STATE OF NEW YORK. 

IT PASSES MY BELIEF THAT ANYTHING IN THE FEDERAL CONSTITUTION BARS A
STATE FROM MAKING THE DELIBERATE BURNING OF THE AMERICAN FLAG AN
OFFENSE.  IT IS IMMATERIAL TO ME THAT WORDS ARE SPOKEN IN CONNECTION
WITH THE BURNING.  IT IS THE BURNING OF THE FLAG THAT THE STATE HAS SET
ITS FACE AGAINST.  "IT RARELY HAS BEEN SUGGESTED THAT THE
CONSTITUTIONAL FREEDOM FOR SPEECH AND PRESS EXTENDS ITS IMMUNITY TO
SPEECH OR WRITING USED AS AN INTEGRAL PART OF CONDUCT IN VIOLATION OF A
VALID CRIMINAL STATUTE."  GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S.
490, 498 (1949).  IN MY VIEW THIS QUOTATION FROM THE GIBONEY CASE
PRECISELY APPLIES HERE.  THE TALKING THAT WAS DONE TOOK PLACE "AS AN
INTEGRAL PART OF CONDUCT IN VIOLATION OF A VALID CRIMINAL STATUTE"
AGAINST BURNING THE AMERICAN FLAG IN PUBLIC.  I WOULD THEREFORE AFFIRM
THIS CONVICTION. 

MR. JUSTICE WHITE, DISSENTING. 

THE COURT HAS SPUN AN INTRICATE, TECHNICAL WEB BUT I FEAR IT HAS
ENSNARED ITSELF IN ITS OWN REMORSELESS LOGIC AND ARRIVED AT A RESULT
HAVING NO SUPPORT IN THE FACTS OF THE CASE OR THE GOVERNING LAW. 

THE COURT'S SCHEMA IS THIS:  THE STATUTE FORBIDS INSULTS TO THE FLAG
EITHER BY ACT OR WORDS; THE CHARGE ALLEGED BOTH FLAG BURNING AND
SPEECH; THE COURT RENDERED A GENERAL JUDGMENT; SINCE THE CONVICTION
MIGHT LOGICALLY HAVE BEEN FOR SPEECH ALONE OR FOR BOTH WORDS AND DEEDS
AND SINCE IN EITHER EVENT THE CONVICTION IS INVALID, THE JUDGMENT OF
THE NEW YORK COURTS MUST BE SET ASIDE WITHOUT PASSING UPON THE VALIDITY
OF A CONVICTION FOR BURNING THE FLAG.  /1/  I REACH PRECISELY THE
OPPOSITE CONCLUSION; BEFORE STREET'S CONVICTION CAN BE EITHER REVERSED
OR AFFIRMED, THE COURT MUST REACH AND DECIDE THE VALIDITY OF A
CONVICTION FOR FLAG BURNING. 

I REJECT FIRST THE COURT'S SUGGESTION THAT WE MUST ASSUME FROM THE
TRIAL COURT'S JUDGMENT-- WHICH WAS THAT "ON THE CHARGE OF MALICIOUS
MISCHIEF THE DEFENDANT IS CONVICTED"-- THAT STREET MIGHT HAVE BEEN
CONVICTED FOR SPEECH ALONE.  TRUE, THE COMPLAINT REFERRED TO BOTH
BURNING AND SPEAKING AND THE STATUTE PERMITS CONVICTION FOR EITHER
INSULTING WORDS OR PHYSICAL DESECRATION.  BUT SURELY THE COURT HAS ITS
TONGUE IN ITS CHEEK WHEN IT INFERS FROM THIS RECORD THE POSSIBILITY
THAT STREET WAS NOT CONVICTED FOR BURNING THE FLAG BUT ONLY FOR THE
WORDS HE UTTERED.  IT IS A DISTORTION OF THE RECORD TO READ IT IN THIS
MANNER, AS THE CHIEF JUSTICE CONVINCINGLY DEMONSTRATES.  BUT EVEN IF IT
WERE FAIR TO INFER THAT HE WAS CONVICTED FOR SPEAKING AS WELL AS
BURNING, IT IS SHEER FANCY TO CONCLUDE THAT THE TRIAL COURT CONVICTED
HIM FOR SPEECH ALONE AND ACQUITTED HIM OF FLAG BURNING.  THE APPELLANT
DOES NOT SERIOUSLY ARGUE SUCH A CLAIM; HIS MAJOR POINT IS THAT HE WAS
CONVICTED FOR BURNING AS A PROTEST AND THAT SUCH A CONVICTION CANNOT
STAND.  THE COURT OF APPEALS OF NEW YORK CHARACTERIZED THE ISSUE BEFORE
IT AS WHETHER THE DEFENDANT COULD BE VALIDLY CONVICTED FOR BURNING THE
FLAG AS A PROTEST.  MOREOVER, WITHOUT CLEAR INDICATION FROM THE STATE
COURTS, I WOULD NOT ASSUME THAT THE PARTICULAR WORDS WHICH STREET SPOKE
IN THIS CASE WOULD BE DEEMED WITHIN THE COVERAGE OF THE STATUTE.  IN
ANY EVENT, IF STREET WAS CONVICTED FOR SPEAKING, HE MOST CERTAINLY WAS
ALSO CONVICTED FOR FLAG BURNING.  HENCE, STROMBERG V. CALIFORNIA, 283
U.S. 359 (1931), AND LIKE CASES TO WHICH I ADHERE, HAVE NO APPLICATION
BY THEIR OWN TERMS. 

I REJECT ALSO THE PROPOSITION THAT IF STREET WAS CONVICTED FOR BOTH
BURNING AND TALKING, HIS CONVICTION MUST BE REVERSED IF THE SPEECH
CONVICTION IS UNCONSTITUTIONAL.  THE COURT INITIALLY CITES THOMAS V.
COLLINS, 323 U.S. 516 (1945), FOR THE RULE THAT WHERE TWO ACTS
VIOLATIVE OF A STATUTE WERE CHARGED, A VERDICT OF GUILTY ON BOTH ACTS
AND A SINGLE SENTENCE MUST BE REVERSED IF CONVICTION FOR EITHER ACT IS
INVALID.  THIS HAS NEVER BEEN THE PREVAILING RULE IN THIS COUNTRY OR IN
THIS COURT, EITHER BEFORE OR AFTER THOMAS V. COLLINS.  THE COURT IN V.
NORTH CAROLINA, 317 U.S. 287 (1942), NEITHER OF WHICH ANNOUNCED THAT
RULE.  I AM NOT CONVINCED THAT THE RULE STATED BY THE THOMAS COURT WAS
NECESSARY FOR REVERSAL, BUT WHETHER DICTUM OR NOT THE RULE ON WHICH THE
COURT RELIES TODAY IS AT ODDS WITH MANY CASES IN THIS COURT. 

CLAASSEN V. UNITED STATES, 142 U.S. 140, 146-147 (1891), SPEAKS FOR
THE LAW AT THAT TIME: 

"AND IT IS SETTLED LAW IN THIS COURT, AND IN THIS COUNTRY GENERALLY,
THAT IN ANY CRIMINAL CASE A GENERAL VERDICT AND JUDGMENT ON AN
INDICTMENT OR INFORMATION CONTAINING SEVERAL COUNTS CANNOT BE REVERSED
ON ERROR, IF ANY ONE OF THE COUNTS IS GOOD AND WARRANTS THE JUDGMENT,
BECAUSE, IN THE ABSENCE OF ANYTHING IN THE RECORD TO SHOW THE CONTRARY,
THE PRESUMPTION OF LAW IS THAT THE COURT AWARDED SENTENCE ON THE GOOD
COUNT ONLY.  LOCKE V. UNITED STATES, 7 CRANCH 339, 344; CLIFTON V.
UNITED STATES, 4 HOW.  242, 250; SNYDER V. UNITED STATES, 112 U.S. 216;
BOND V. DUSTIN, 112 U.S. 604, 609; 1 BISHOP CRIM. PRO. 1015; WHARTON
CRIM. PL. & PRACT.  SEC.  771." 

MANY YEARS LATER, IN BARENBLATT V. UNITED STATES, 360 U.S. 109
(1959), THE COURT WAS EQUALLY CLEAR.  THERE THE DEFENDANT WAS INDICTED
IN FIVE COUNTS FOR CONTEMPT IN REFUSING TO ANSWER QUESTIONS PUT BY A
CONGRESSIONAL COMMITTEE.  THE CASE WAS TRIED TO A COURT WITHOUT A JURY
AND UPON CONVICTION UNDER ALL COUNTS A GENERAL SENTENCE OF SIX MONTHS'
IMPRISONMENT AND A FINE OF $200 WAS IMPOSED.  BECAUSE THE CONVICTION ON
AT LEAST SOME OF THE COUNTS WAS WARRANTED, THE JUDGMENT WAS AFFIRMED. 
RELYING ON CLAASSEN AMONG OTHER CASES, THE COURT SAID: 

     "SINCE THIS SENTENCE WAS LESS THAN THE MAXIMUM PUNISHMENT

  AUTHORIZED BY THE STATUTE FOR CONVICTION UNDER ANY ONE COUNT, THE

  JUDGMENT BELOW MUST BE UPHELD IF THE CONVICTION UPON ANY OF THE

  COUNTS IS SUSTAINABLE."  360 U.S.,AT 115.  (FOOTNOTE OMITTED.) 

THERE ARE A HOST OF OTHER CASES TO THE SAME EFFECT.  /2/ 

EVEN ACCEPTING THE NOTION THAT WHERE THERE IS A CONVICTION ON EACH
OF SEVERAL COUNTS AND A GENERAL SENTENCE IS IMPOSED, AFFIRMANCE
REQUIRES UPHOLDING THE CONVICTION ON EACH AND EVERY COUNT, THE RULE
WOULD HAVE NO APPLICATION TO THE FACTS OF THIS CASE.  SUCH A RULE WOULD
BE BASED ON THE NOTION THAT THE TRIAL JUDGE MIGHT HAVE GIVEN A LESSER
SENTENCE IF HE HAD KNOWN THAT SOME OF THE COUNTS WERE INFIRM.  REVERSAL
OF THE JUDGMENT ON LESS THAN ALL THE COUNTS WOULD CALL ONLY FOR
RESENTENCING, NOT FOR REVERSAL OF THE CONVICTIONS ON THE OTHER COUNTS. 

VIEWED IN THIS LIGHT, THE JUDGMENT OF THE NEW YORK COURTS, INSOFAR
AS IT CONVICTED STREET FOR FLAG BURNING, CANNOT BE REVERSED SIMPLY
BECAUSE STREET WAS ALSO CONVICTED FOR SPEAKING A GENERAL SENTENCE WAS
GIVEN.  NEITHER CAN THE CASE BE REMANDED FOR RESENTENCING SINE NO
SENTENCE WAS IMPOSED.  SENTENCE WAS SUSPENDED UNDER THE THEN APPLICABLE
NEW YORK LAW AND THE TIME FOR IMPOSING A SENTENCE HAD EXPIRED EVEN
BEFORE THE JUDGMENT WAS REVIEWED IN THE NEW YORK COURT OF APPEALS. 

RECOGNIZING THE ABERRANCE OF THOMAS, THE COURT NOW GIVES THAT CASE A
NEW AND MORE CONFUSING GLOSS.  THE GENERAL FINDING OF GUILT FOR BOTH
SPEAKING AT A MEETING AND FOR AN INDIVIDUAL SOLICITATION WAS REVERSED,
WE ARE TOLD, BECAUSE THE SPEECH AND SOLICITATION WERE INTERTWINED,
MAKING IT UNCERTAIN THAT THERE WAS OR WOULD HAVE BEEN A JUDGMENT OF
GUILTY ON THE SOLICITATION ALONE.  ASIDE FROM THE FACT THAT THOMAS
ITSELF SAID THE PENALTY WAS IMPOSED FOR BOTH VIOLATIONS, THE RATIONALE
WHICH THE COURT EXTRACTS FROM THE FACTS AND JUDGMENT IN THAT CASE
HARDLY QUALIFIES AS A CONSTITUTIONAL STANDARD TO BE APPLIED WILLY-NILLY
IN ALL CASES WHERE THERE IS A GENERAL VERDICT ON A COUNT CHARGING DUAL
VIOLATIONS.  THE COURT IS CAPABLE OF MORE DISCRIMINATING JUDGMENT THAT
TO INSIST ON ITS NEWLY FASHIONED DOCTRINE IN A CASE LIKE STREET'S WHERE
IT IS SO CLEAR THAT THERE WAS AT LEAST A CONVICTION FOR A PUBLIC
BURNING OF THE AMERICAN FLAG. 

THE COURT IS OBVIOUSLY WRONG IN REVERSING THE JUDGMENT BELOW BECAUSE
IT BELIEVES THAT STREET WAS UNCONSTITUTIONALLY CONVICTED FOR SPEAKING. 
REVERSAL CAN FOLLOW ONLY IF THE COURT REACHES THE CONVICTION FOR FLAG
BURNING AND FINDS THAT CONVICTION, AS WELL AS THE ASSUMED CONVICTION
FOR SPEECH, TO BE VIOLATIVE OF THE FIRST AMENDMENT.  /3/  FOR MYSELF,
WITHOUT THE BENEFIT OF THE MAJORITY'S THINKING IF IT WERE TO FIND FLAG
BURNING PROTECTED BY THE FIRST AMENDMENT, I WOULD SUSTAIN SUCH A
CONVICTION.  I MUST DISSENT. 

/1/  THE COURT'S THEORY IS NOT THAT OF UNCONSTITUTIONAL OVERBREADTH;
IT DOES NOT ARGUE THAT NEW YORK MAY NOT CONVICT FOR BURNING BECAUSE THE
ENTIRE STATUTE IS UNCONSTITUTIONAL FOR PERMITTING CONVICTIONS FOR
INSULTING SPEECH AS WELL AS FOR THE ACT OF FLAG BURNING. 

/2/  E.G., PINKERTON V. UNITED STATES, 328 U.S. 640, 641-642, N. 1
(1946); WHITFIELD V. OHIO, 297 U.S. 431, 438 (1936); SINCLAIR V. UNITED
STATES, 279 U.S. 263, 299 (1929); ABRAMS V. UNITED STATES, 250 U.S.
616, 619 (1919); BALLEW V. UNITED STATES, 160 U.S. 187, 197-203 (1895);
GOODE V. UNITED STATES, 159 U.S. 663, 669 (1895); EVANS V. UNITED
STATES, 153 U.S. 584, 595 (1894); EVANS V. UNITED STATES, 153 U.S. 608
(1894).  THIS COURT HAS RECOGNIZED THE APPLICABILITY OF THE SAME RULE
TO COURT-MARTIAL PROCEEDINGS, CARTER V. MCCLAUGHRY, 183 U.S. 365, 384
387 (1902); TO FORFEITURE ACTIONS, SNYDER V. UNITED STATES, 112 U.S.
216, 217 (1884), CLIFTON V. UNITED STATES, 4 HOW.  242, 250 (1846),
LOCKE V. UNITED STATES, 7 CRANCH 339, 344 (1813); AND TO CIVIL CASES
UNDER STATE LAW, BOND V. DUSTIN, 112 U.S. 604, 609 (1884).  IN UNITED
STATES V. GAINEY, 380 U.S. 63, 65 (1965), THE COURT APPLIED THE RELATED
CONCURRENT SENTENCE RULE TO A GENERAL SENTENCE ON A GUILTY VERDICT ON
AN INDICTMENT CHARGING SEVERAL COUNTS.  SEE TRANSCRIPT OF RECORD 48-50,
NO. 13, OCTOBER TERM, 1964. 

/3/  ARGUABLY, UNDER TODAY'S DECISION ANY CONVICTION FOR FLAG
BURNING WHERE THE DEFENDANT'S WORDS ARE CRITICAL TO PROVING INTENT OR
SOME OTHER ELEMENT OF THE CRIME WOULD BE INVALID SINCE THE CONVICTION
WOULD BE BASED IN PART ON SPEECH.  THE COURT DISCLAIMS THIS RESULT, BUT
WITHOUT EXPLAINING WHY IT WOULD NOT REVERSE A CONVICTION FOR BURNING
WHERE WORDS SPOKEN AT THE TIME ARE NECESSARILY USED TO PROVE A CASE AND
YET REVERSE BURNING CONVICTIONS ON PRECISELY THE SAME EVIDENCE SIMPLY
BECAUSE ON THAT EVIDENCE THE DEFENDANT MIGHT ALSO HAVE BEEN CONVICTED
FOR SPEAKING.  THE COURT'S SEEMINGLY NARROW HOLDING MAY BE OF
POTENTIALLY BROADER APPLICATION, PARTICULARLY IN VIEW OF THOMAS V.
COLLINS AS NOW REWRITTEN BY THE COURT.     MR. JUSTICE FORTAS,
DISSENTING. 

I AGREE WITH THE DISSENTING OPINION FILED BY THE CHIEF JUSTICE, BUT
I BELIEVE THAT IT IS NECESSARY BRIEFLY TO SET FORTH THE REASONS WHY THE
STATES AND THE FEDERAL GOVERNMENT HAVE THE POWER TO PROTECT THE FLAG
FROM ACTS OF DESECRATION COMMITTED IN PUBLIC. 

IF THE NATIONAL FLAG WERE NOTHING MORE THAN A CHATTEL, SUBJECT ONLY
TO THE RULES GOVERNING THE USE OF PRIVATE PERSONALTY, ITS USE WOULD
NEVERTHELESS BE SUBJECT TO CERTAIN TYPES OF STATE REGULATION.  FOR
EXAMPLE, REGULATIONS CONCERNING THE USE OF CHATTELS WHICH ARE
REASONABLY DESIGNED TO AVOID DANGER TO LIFE OR PROPERTY, OR IMPINGEMENT
UPON THE RIGHTS OF OTHERS TO THE QUIET USE OF THEIR PROPERTY AND OF
PUBLIC FACILITIES, WOULD UNQUESTIONABLY BE A VALID EXERCISE OF POLICE
POWER.  THEY WOULD NOT NECESSARILY BE DEFEATED BY A CLAIM THAT THEY
CONFLICTED WITH THE RIGHTS OF THE OWNER OF THE REGULATED PROPERTY. 
SEE, E.G., VILLAGE OF EUCLID V. AMBLER REALTY CO., 272 U.S. 365 (1926);
BERMAN V. PARKER, 348 U.S. 26 (1954). 

IF A STATE STATUTE PROVIDED THAT IT IS A MISDEMEANOR TO BURN ONE'S
SHIRT OR TROUSERS OR SHOES ON THE PUBLIC THOROUGHFARE, IT COULD HARDLY
BE ASSERTED THAT THE CITIZEN'S CONSTITUTIONAL RIGHT IS VIOLATED.  IF
THE ARSONIST ASSERTED THAT HE WAS BURNING HIS SHIRT OR TROUSERS OR
SHOES AS A PROTEST AGAINST THE GOVERNMENT'S FISCAL POLICIES, FOR
EXAMPLE, IT IS HARDLY POSSIBLE THAT HIS CLAIM TO FIRST AMENDMENT
SHELTER WOULD PREVAIL AGAINST THE STATE'S CLAIM OF A RIGHT TO AVERT
DANGER TO THE PUBLIC AND TO AVOID OBSTRUCTION TO TRAFFIC AS A RESULT OF
THE FIRE.  THIS IS BECAUSE ACTION, EVEN IF CLEARLY FOR SERIOUS PROTEST
PURPOSES, IS NOT ENTITLED TO THE PERVASIVE PROTECTION THAT IS GIVEN TO
SPEECH ALONE.  SEE CANTWELL V. CONNECTICUT, 310 U.S. 296, 303-304
(1940).  IT MAY BE SUBJECTED TO REASONABLE REGULATION THAT
APPROPRIATELY TAKES INTO ACCOUNT THE COMPETING INTERESTS INVOLVED. 

THE TEST THAT IS APPLICABLE IN EVERY CASE WHERE CONDUCT IS
RESTRICTED OR PROHIBITED IS WHETHER THE REGULATION OR PROHIBITION IS
REASONABLE, DUE ACCOUNT BEING TAKEN OF THE PARAMOUNTCY OF FIRST
AMENDMENT VALUES.  IF, AS I SUBMIT, IT IS PERMISSIBLE TO PROHIBIT THE
BURNING OF PERSONAL PROPERTY ON THE PUBLIC SIDEWALK, THERE IS NO BASIS
FOR APPLYING A DIFFERENT RULE TO FLAG BURNING.  AND THE FACT THAT THE
LAW IS VIOLATED FOR PURPOSES OF PROTEST DOES NOT IMMUNIZE THE
VIOLATOR.  UNITED STATES V. O'BRIEN, 391 U.S. 367 (1968); SEE GIBONEY
V. EMPIRE STORAGE & ICE CO., 336 U.S. 490 (1949). 

BEYOND THIS, HOWEVER, THE FLAG IS A SPECIAL KIND OF PERSONALTY.  ITS
USE IS TRADITIONALLY AND UNIVERSALLY SUBJECT TO SPECIAL RULES AND
REGULATION.  AS EARLY AS 1907, THIS COURT AFFIRMED THE
CONSTITUTIONALITY OF A STATE STATUTE MAKING IT A CRIME TO USE A
REPRESENTATION OF THE UNITED STATES FLAG FOR PURPOSES OF ADVERTISING. 
HALTER V. NEBRASKA, 205 U.S. 34 (1907).  STATUTES PRESCRIBE HOW THE
FLAG MAY BE DISPLAYED; HOW IT MAY LAWFULLY BE DISPOSED OF; WHEN, HOW,
AND FOR WHAT PURPOSES IT MAY AND MAY NOT BE USED.  SEE, E.G., 4 U.S.C.
3; 56 STAT. 377, C. 435, 36 U.S.C. 172-177.  A PERSON MAY "OWN"  A
FLAG, BUT OWNERSHIP IS SUBJECT TO SPECIAL BURDENS AND
RESPONSIBILITIES.  A FLAG MAY BE PROPERTY, IN A SENSE; BUT IT IS
PROPERTY BURDENED WITH PECULIAR OBLIGATIONS AND RESTRICTIONS. 
CERTAINLY, AS HALTER V. NEBRASKA, SUPRA, HELD, THESE SPECIAL CONDITIONS
ARE NOT PER SE ARBITRARY OR BEYOND GOVERNMENTAL POWER UNDER OUR
CONSTITUTION. 

ONE MAY NOT JUSTIFY BURNING A HOUSE, EVEN IF IT IS HIS OWN, ON THE
GROUND, HOWEVER SINCERE, THAT HE DOES SO AS A PROTEST.  ONE MAY NOT
JUSTIFY BREAKING THE WINDOWS OF A GOVERNMENT BUILDING ON THAT BASIS. 
PROTEST DOES NOT EXONERATE LAWLESSNESS.  AND THE PROHIBITION AGAINST
FLAG BURNING ON THE PUBLIC THOROUGHFARE BEING VALID, THE MISDEMEANOR IS
NOT EXCUSED MERELY BECAUSE IT IS AN ACT OF FLAMBOYANT PROTEST. 

DAVID T. GOLDSTICK ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE ALBERT H. BLUMENTHAL, OSMOND K. FRAENKEL, ALAN H. LEVINE,
AND MELVIN L. WULF. 

HARRY BRODBAR ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WAS ELLIOTT GOLDEN. 

BRIEFS OF AMICI CURIAE URGING AFFIRMANCE WERE FILED BY LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, PRO SE, SAMUEL A. HIRSHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND BRENDA SOLOFF, ASSISTANT ATTORNEY
GENERAL, FOR THE ATTORNEY GENERAL OF NEW YORK, AND BY PETER MEGARGEE
BROWN FOR THE UNITED STATES FLAG FOUNDATION, INC.
..END :






SHAPIRO V. THOMPSON, 394 U.S. 618 


       SHAPIRO, COMMISSIONER OF WELFARE OF CONNECTICUT V.

           THOMPSON. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT. 

        NO. 9.  ARGUED MAY 1, 1968.-- REARGUED OCTOBER 23-24,

           1968.-- DECIDED APRIL 21, 1969.  /0/ 


THESE APPEALS ARE FROM DECISIONS OF THREE-JUDGE DISTRICT COURTS
HOLDING UNCONSTITUTIONAL CONNECTICUT, PENNSYLVANIA, OR DISTRICT OF
COLUMBIA STATUTORY PROVISIONS WHICH DENY WELFARE ASSISTANCE TO PERSONS
WHO ARE RESIDENTS AND MEET ALL OTHER ELIGIBILITY REQUIREMENTS EXCEPT
THAT THEY HAVE NOT RESIDED WITHIN THE JURISDICTION FOR AT LEAST A YEAR
IMMEDIATELY PRECEDING THEIR APPLICATIONS FOR ASSISTANCE.  APPELLEES'
MAIN CONTENTION ON REARGUMENT IS THAT THE PROHIBITION OF BENEFITS TO
RESIDENTS OF LESS THAN ONE YEAR CREATES A CLASSIFICATION WHICH
CONSTITUTES AN INVIDIOUS DISCRIMINATION DENYING THEM EQUAL PROTECTION
OF THE LAWS.  APPELLANTS ARGUE THAT THE WAITING PERIOD IS NEEDED TO
PRESERVE THE FISCAL INTEGRITY OF THEIR PUBLIC ASSISTANCE PROGRAMS, AS
PERSONS WHO REQUIRE WELFARE ASSISTANCE DURING THEIR FIRST YEAR OF
RESIDENCE ARE LIKELY TO BECOME CONTINUING BURDENS ON WELFARE PROGRAMS. 
APPELLANTS ALSO SEEK TO JUSTIFY THE CLASSIFICATION AS A PERMISSIBLE
ATTEMPT TO DISCOURAGE INDIGENTS FROM ENTERING A STATE SOLELY TO OBTAIN
LARGER BENEFITS, AND TO DISTINGUISH BETWEEN NEW AND OLD RESIDENTS ON
THE BASIS OF THE TAX CONTRIBUTIONS THEY HAVE MADE TO THE COMMUNITY. 
CERTAIN APPELLANTS RELY IN ADDITION ON THE FOLLOWING ADMINISTRATIVE AND
RELATED GOVERNMENTAL OBJECTIVES:  FACILITATING THE PLANNING OF WELFARE
BUDGETS, PROVIDING AN OBJECTIVE TEST OF RESIDENCY, MINIMIZING THE
OPPORTUNITY FOR RECIPIENTS FRAUDULENTLY TO RECEIVE PAYMENTS FROM MORE
THAN ONE JURISDICTION, AND ENCOURAGING EARLY ENTRY OF NEW RESIDENTS
INTO THE LABOR FORCE.  CONNECTICUT AND PENNSYLVANIA ALSO ARGUE THAT
CONGRESS APPROVED THE IMPOSITION OF THE ONE-YEAR REQUIREMENT IN SEC.
402(B) OF THE SOCIAL SECURITY ACT.  HELD: 

1.  THE STATUTORY PROHIBITION OF BENEFITS TO RESIDENTS OF LESS THAN A
YEAR CREATES A CLASSIFICATION WHICH DENIES EQUAL PROTECTION OF THE LAWS
BECAUSE THE INTERESTS ALLEGEDLY SERVED BY THE CLASSIFICATION EITHER MAY
NOT CONSTITUTIONALLY BE PROMOTED BY GOVERNMENT OR ARE NOT COMPELLING
GOVERNMENTAL INTERESTS.  P. 627. 

2.  SINCE THE CONSTITUTION GUARANTEES THE RIGHT OF INTERSTATE
MOVEMENT, THE PURPOSE OF DETERRING THE MIGRATION OF INDIGENTS INTO A
STATE IS IMPERMISSIBLE AND CANNOT SERVE TO JUSTIFY THE CLASSIFICATION
CREATED BY THE ONE-YEAR WAITING PERIOD.  PP. 629-631. 

3.  A STATE MAY NO MORE TRY TO FENCE OUT THOSE INDIGENTS WHO SEEK
HIGHER WELFARE PAYMENTS THAN IT MAY TRY TO FENCE OUT INDIGENTS
GENERALLY.  PP. 631-632. 

4.  THE CLASSIFICATION MAY NOT BE SUSTAINED AS AN ATTEMPT TO
DISTINGUISH BETWEEN NEW AND OLD RESIDENTS ON THE BASIS OF THE
CONTRIBUTION THEY HAVE MADE TO THE COMMUNITY THROUGH THE PAYMENT OF
TAXES BECAUSE THE EQUAL PROTECTION CLAUSE PROHIBITS THE STATES FROM
APPORTIONING BENEFITS OR SERVICES ON THE BASIS OF THE PAST TAX
CONTRIBUTIONS OF ITS CITIZENS.  PP. 632-633. 

5.  IN MOVING FROM JURISDICTION TO JURISDICTION APPELLEES WERE
EXERCISING A CONSTITUTIONAL RIGHT, AND ANY CLASSIFICATION WHICH
PENALIZES THE EXERCISE OF THAT RIGHT, UNLESS SHOWN TO BE NECESSARY TO
PROMOTE A COMPELLING GOVERNMENTAL INTEREST, IS UNCONSTITUTIONAL.  P.
634. 

6.  APPELLANTS DO NOT USE AND HAVE NO NEED TO USE THE ONE-YEAR
REQUIREMENT FOR THE ADMINISTRATIVE AND GOVERNMENTAL PURPOSES SUGGESTED,
AND UNDER THE STANDARD OF A COMPELLING STATE INTEREST, THAT REQUIREMENT
CLEARLY VIOLATES THE EQUAL PROTECTION CLAUSE.  PP. 634-638. 

7.  SECTION 402(B) OF THE SOCIAL SECURITY ACT DOES NOT RENDER THE
WAITING-PERIOD REQUIREMENTS CONSTITUTIONAL.  PP. 638-641. 

(A) THAT SECTION ON ITS FACE DOES NOT APPROVE, MUCH LESS PRESCRIBE,
A ONE-YEAR REQUIREMENT, AND THE LEGISLATIVE HISTORY REVEALS THAT
CONGRESS' PURPOSE WAS TO CURB HARDSHIPS RESULTING FROM EXCESSIVE
RESIDENCE REQUIREMENTS AND NOT TO APPROVE OR PRESCRIBE ANY WAITING
PERIOD.  PP. 639-640. 

(B) ASSUMING, ARGUENDO, THAT CONGRESS DID APPROVE THE USE OF A ONE
YEAR WAITING PERIOD, IT IS THE RESPONSIVE STATE LEGISLATION AND NOT
SEC. 402(B) WHICH INFRINGES CONSTITUTIONAL RIGHTS.  P. 641. 

(C) IF THE CONSTITUTIONALITY OF SEC. 402(B) WERE AT ISSUE, THAT
PROVISION, INSOFAR AS IT PERMITS THE ONE-YEAR WAITING PERIOD, WOULD BE
UNCONSTITUTIONAL, AS CONGRESS MAY NOT AUTHORIZE THE STATES TO VIOLATE
THE EQUAL PROTECTION CLAUSE.  P. 641. 

8.  THE WAITING-PERIOD REQUIREMENT IN THE DISTRICT OF COLUMBIA CODE,
ADOPTED BY CONGRESS AS AN EXERCISE OF FEDERAL POWER, IS AN
UNCONSTITUTIONAL DISCRIMINATION WHICH VIOLATES THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT.  PP. 641-642. 

NO. 9, 270 F.SUPP.  331; NO. 33, 279 F.SUPP.  22; AND NO. 34, 277
F.SUPP.  65, AFFIRMED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THESE THREE APPEALS WERE RESTORED TO THE CALENDAR FOR REARGUMENT. 
392 U.S. 920 (1968).  EACH IS AN APPEAL FROM A DECISION OF A THREE
JUDGE DISTRICT COURT HOLDING UNCONSTITUTIONAL A STATE OR DISTRICT OF
COLUMBIA STATUTORY PROVISION WHICH DENIES WELFARE ASSISTANCE TO
RESIDENTS OF THE STATE OR DISTRICT WHO HAVE NO RESIDED WITHIN THEIR
JURISDICTIONS FOR AT LEAST ONE YEAR IMMEDIATELY PRECEDING THEIR
APPLICATIONS FOR SUCH ASSISTANCE.  /1/  WE AFFIRM THE JUDGMENTS OF THE
DISTRICT COURTS IN THE THREE CASES. 

        I. 

IN NO. 9, THE CONNECTICUT WELFARE DEPARTMENT INVOKED SEC. 17-2D OF
THE CONNECTICUT GENERAL STATUTES /2/  TO DENY THE APPLICATION OF
APPELLEE VIVIAN MARIE THOMPSON FOR ASSISTANCE UNDER THE PROGRAM FOR AID
TO FAMILIES WITH DEPENDENT CHILDREN (AFDC).  SHE WAS A 19-YEAR-OLD
UNWED MOTHER OF ONE CHILD AND PREGNANT WITH HER SECOND CHILD WHEN SHE
CHANGED HER RESIDENCE IN JUNE 1966 FROM DORCHESTER, MASSACHUSETTS, TO
HARTFORD, CONNECTICUT, TO LIVE WITH HER MOTHER, A HARTFORD RESIDENT. 
SHE MOVED TO HER OWN APARTMENT IN HARTFORD IN AUGUST 1966, WHEN HER
MOTHER WAS NO LONGER ABLE TO SUPPORT HER AND HER INFANT SON.  BECAUSE
OF HER PREGNANCY, SHE WAS UNABLE TO WORK OR ENTER A WORK TRAINING
PROGRAM.  HER APPLICATION FOR AFDC ASSISTANCE, FILED IN AUGUST, WAS
DENIED IN NOVEMBER SOLELY ON THE GROUND THAT, AS REQUIRED BY SEC. 17
2D, SHE HAD NOT LIVED IN THE STATE FOR A YEAR BEFORE HER APPLICATION
WAS FILED.  SHE BROUGHT THIS ACTION IN THE DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT WHERE A THREE-JUDGE COURT, ONE JUDGE
DISSENTING, DECLARED SEC. 17-2D UNCONSTITUTIONAL.  270 F.SUPP.  331
(1967).  THE MAJORITY HELD THAT THE WAITING-PERIOD REQUIREMENT IS
UNCONSTITUTIONAL BECAUSE IT "HAS A CHILLING EFFECT ON THE RIGHT TO
TRAVEL."  ID., AT 336.  THE MAJORITY ALSO HELD THAT THE PROVISION WAS A
VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
BECAUSE THE DENIAL OF RELIEF TO THOSE RESIDENT IN THE STATE FOR LESS
THAN A YEAR IS NOT BASED ON ANY PERMISSIBLE PURPOSE BUT IS SOLELY
DESIGNED, AS "CONNECTICUT STATES QUITE FRANKLY," "TO PROTECT ITS FISC
BY DISCOURAGING ENTRY OF THOSE WHO COME NEEDING RELIEF."  ID., AT 336
337.  WE NOTED PROBABLE JURISDICTION.  389 U.S. 1032 (1968). 

IN NO. 33, THERE ARE FOUR APPELLEES.  THREE OF THEM-- APPELLEES
HARRELL, BROWN, AND LEGRANT-- APPLIED FOR AND WERE DENIED AFDC AID. 
THE FOURTH, APPELLEE BARLEY, APPLIED FOR AND WAS DENIED BENEFITS UNDER
THE PROGRAM FOR AID TO THE PERMANENTLY AND TOTALLY DISABLED.  THE
DENIAL IN EACH CASE WAS ON THE GROUND THAT THE APPLICANT HAD NOT
RESIDED IN THE DISTRICT OF COLUMBIA FOR ONE YEAR IMMEDIATELY PRECEDING
THE FILING OF HER APPLICATION, AS REQUIRED BY SEC. 3-203 OF THE
DISTRICT OF COLUMBIA CODE.  /3/ 

APPELLEE MINNIE HARRELL, NOW DECEASED, HAD MOVED WITH HER THREE
CHILDREN FROM NEW YORK TO WASHINGTON IN SEPTEMBER 1966.  SHE SUFFERED
FROM CANCER AND MOVED TO BE NEAR MEMBERS OF HER FAMILY WHO LIVED IN
WASHINGTON. 

APPELLEE BARLEY, A FORMER RESIDENT OF THE DISTRICT OF COLUMBIA,
RETURNED TO THE DISTRICT IN MARCH 1941 AND WAS COMMITTED A MONTH LATER
TO ST. ELIZABETHS HOSPITAL AS MENTALLY ILL.  SHE HAS REMAINED IN THAT
HOSPITAL EVER SINCE.  SHE WAS DEEMED ELIGIBLE FOR RELEASE IN 1965, AND
A PLAN WAS MADE TO TRANSFER HER FROM THE HOSPITAL TO A FOSTER HOME. 
THE PLAN DEPENDED, HOWEVER, UPON MRS. BARLEY'S OBTAINING WELFARE
ASSISTANCE FOR HER SUPPORT.  HER APPLICATION FOR ASSISTANCE UNDER THE
PROGRAM FOR AID TO THE PERMANENTLY AND TOTALLY DISABLED WAS DENIED
BECAUSE HER TIME SPENT IN THE HOSPITAL DID NOT COUNT IN DETERMINING
COMPLIANCE WITH THE ONE-YEAR REQUIREMENT. 

APPELLEE BROWN LIVED WITH HER MOTHER AND TWO OF HER THREE CHILDREN
IN FORT SMITH, ARKANSAS.  HER THIRD CHILD WAS LIVING WITH APPELLEE
BROWN'S FATHER IN THE DISTRICT OF COLUMBIA.  WHEN HER MOTHER MOVED FROM
FORT SMITH TO OKLAHOMA, APPELLEE BROWN, IN FEBRUARY 1966, RETURNED TO
THE DISTRICT OF COLUMBIA WHERE SHE HAD LIVED AS A CHILD.  HER
APPLICATION FOR AFDC ASSISTANCE WAS APPROVED INSOFAR AS IT SOUGHT
ASSISTANCE FOR THE CHILD WHO HAD LIVED IN THE DISTRICT WITH HER FATHER
BUT WAS DENIED TO THE EXTENT IT SOUGHT ASSISTANCE FOR THE TWO OTHER
CHILDREN. 

APPELLEE LEGRANT MOVED WITH HER TWO CHILDREN FROM SOUTH CAROLINA TO
THE DISTRICT OF COLUMBIA IN MARCH 1967 AFTER THE DEATH OF HER MOTHER. 
SHE PLANNED TO LIVE WITH A SISTER AND BROTHER IN WASHINGTON.  SHE WAS
PREGNANT AND IN ILL HEALTH WHEN SHE APPLIED FOR AND WAS DENIED AFDC
ASSISTANCE IN JULY 1967. 

THE SEVERAL CASES WERE CONSOLIDATED FOR TRIAL, AND A THREE-JUDGE
DISTRICT COURT WAS CONVENED.  /4/  THE COURT, ONE JUDGE DISSENTING,
HELD SEC. 3-203 UNCONSTITUTIONAL.  279 F.SUPP.  22 (1967).  THE
MAJORITY RESTED ITS DECISION ON THE GROUND THAT THE ONE-YEAR
REQUIREMENT WAS UNCONSTITUTIONAL AS A DENIAL OF THE RIGHT TO EQUAL
PROTECTION SECURED BY THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 
WE NOTED PROBABLE JURISDICTION.  390 U.S. 940 (1968). 

IN NO. 34, THERE ARE TWO APPELLEES, SMITH AND FOSTER, WHO WERE
DENIED AFDC AID ON THE SOLE GROUND THAT THEY HAD NOT BEEN RESIDENTS OF
PENNSYLVANIA FOR A YEAR PRIOR TO THEIR APPLICATIONS AS REQUIRED BY SEC.
432(6) OF THE PENNSYLVANIA WELFARE CODE.  /5/  APPELLEE SMITH AND HER
FIVE MINOR CHILDREN MOVED IN DECEMBER 1966 FROM DELAWARE TO
PHILADELPHIA, PENNSYLVANIA, WHERE HER FATHER LIVED.  HER FATHER
SUPPORTED HER AND HER CHILDREN FOR SEVERAL MONTHS UNTIL HE LOST HIS
JOB.  APPELLEE THEN APPLIED FOR AFDC ASSISTANCE AND HAD RECEIVED TWO
CHECKS WHEN THE AID WAS TERMINATED.  APPELLEE FOSTER, AFTER LIVING IN
PENNSYLVANIA FROM 1953 TO 1965, HAD MOVED WITH HER FOUR CHILDREN TO
SOUTH CAROLINA TO CARE FOR HER GRANDFATHER AND INVALID GRANDMOTHER AND
HAD RETURNED TO PENNSYLVANIA IN 1967.  A THREE-JUDGE DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA, ONE JUDGE DISSENTING, DECLARED
SEC. 432(6) UNCONSTITUTIONAL.  277 F.SUPP.  65 (1967).  THE MAJORITY
HELD THAT THE CLASSIFICATION ESTABLISHED BY THE WAITING-PERIOD
REQUIREMENT IS "WITHOUT RATIONAL BASIS AND WITHOUT LEGITIMATE PURPOSE
OR FUNCTION" AND THEREFORE A VIOLATION OF THE EQUAL PROTECTION CLAUSE. 
ID., AT 67.  THE MAJORITY NOTED FURTHER THAT IF THE PURPOSE OF THE
STATUTE WAS "TO ERECT A BARRIER AGAINST THE MOVEMENT OF INDIGENT
PERSONS INTO THE STATE OR TO EFFECT THEIR PROMPT DEPARTURE AFTER THEY
HAVE GOTTEN THERE," IT WOULD BE "PATENTLY IMPROPER AND ITS
IMPLEMENTATION PLAINLY IMPERMISSIBLE."  ID., AT 67-68.  WE NOTED
PROBABLE JURISDICTION.  390 U.S. 940 (1968). 

        II. 

THERE IS NO DISPUTE THAT THE EFFECT OF THE WAITING-PERIOD
REQUIREMENT IN EACH CASE IS TO CREATE TWO CLASSES OF NEEDY RESIDENT
FAMILIES INDISTINGUISHABLE FROM EACH OTHER EXCEPT THAT ONE IS COMPOSED
OF RESIDENTS WHO HAVE RESIDED A YEAR OR MORE, AND THE SECOND OF
RESIDENTS WHO HAVE RESIDED LESS THAN A YEAR, IN THE JURISDICTION.  ON
THE BASIS OF THIS SOLE DIFFERENCE THE FIRST CLASS IS GRANTED AND THE
SECOND CLASS IS DENIED WELFARE AID UPON WHICH MAY DEPEND THE ABILITY OF
THE FAMILIES TO OBTAIN THE VERY MEANS TO SUBSIST-- FOOD, SHELTER, AND
OTHER NECESSITIES OF LIFE.  IN EACH CASE, THE DISTRICT COURT FOUND THAT
APPELLEES MET THE TEST FOR RESIDENCE IN THEIR JURISDICTIONS, AS WELL AS
ALL OTHER ELIGIBILITY REQUIREMENTS EXCEPT THE REQUIREMENT OF RESIDENCE
FOR A FULL YEAR PRIOR TO THEIR APPLICATIONS.  ON REARGUMENT, APPELLEES'
CENTRAL CONTENTION IS THAT THE STATUTORY PROHIBITION OF BENEFITS TO
RESIDENTS OF LESS THAN A YEAR CREATES A CLASSIFICATION WHICH
CONSTITUTES AN INVIDIOUS DISCRIMINATION DENYING THEM EQUAL PROTECTION
OF THE LAWS.  /6/  WE AGREE.  THE INTERESTS WHICH APPELLANTS ASSERT ARE
PROMOTED BY THE CLASSIFICATION EITHER MAY NOT CONSTITUTIONALLY BE
PROMOTED BY GOVERNMENT OR ARE NOT COMPELLING GOVERNMENTAL INTERESTS. 

        III. 

PRIMARILY, APPELLANTS JUSTIFY THE WAITING-PERIOD REQUIREMENT AS A
PROTECTIVE DEVICE TO PRESERVE THE FISCAL INTEGRITY OF STATE PUBLIC
ASSISTANCE PROGRAMS.  IT IS ASSERTED THAT PEOPLE WHO REQUIRE WELFARE
ASSISTANCE DURING THEIR FIRST YEAR OF RESIDENCE IN A STATE ARE LIKELY
TO BECOME CONTINUING BURDENS ON STATE WELFARE PROGRAMS.  THEREFORE, THE
ARGUMENT RUNS, IF SUCH PEOPLE CAN BE DETERRED FROM ENTERING THE
JURISDICTION BY DENYING THEM WELFARE BENEFITS DURING THE FIRST YEAR,
STATE PROGRAMS TO ASSIST LONG-TIME RESIDENTS WILL NOT BE IMPAIRED BY A
SUBSTANTIAL INFLUX OF INDIGENT NEWCOMERS.  /7/ 

THERE IS WEIGHTY EVIDENCE THAT EXCLUSION FROM THE JURISDICTION OF
THE POOR WHO NEED OR MAY NEED RELIEF WAS THE SPECIFIC OBJECTIVE OF
THESE PROVISIONS.  IN THE CONGRESS, SPONSORS OF FEDERAL LEGISLATION TO
ELIMINATE ALL RESIDENCE REQUIREMENTS HAVE BEEN CONSISTENTLY OPPOSED BY
REPRESENTATIVES OF STATE AND LOCAL WELFARE AGENCIES WHO HAVE STRESSED
THE FEARS OF THE STATES THAT ELIMINATION OF THE REQUIREMENTS WOULD
RESULT IN A HEAVY INFLUX OF INDIVIDUALS INTO STATES PROVIDING THE MOST
GENEROUS BENEFITS.  SEE, E.G., HEARINGS ON H.R. 10032 BEFORE THE HOUSE
COMMITTEE ON WAYS AND MEANS, 87TH CONG., 2D SESS., 309-310, 644 (1962);
HEARINGS ON H.R. 6000 BEFORE THE SENATE COMMITTEE ON FINANCE, 81ST
CONG., 2D SESS., 324-327 (1950).  THE SPONSOR OF THE CONNECTICUT
REQUIREMENT SAID IN ITS SUPPORT:  "I DOUBT THAT CONNECTICUT CAN AND
SHOULD CONTINUE TO ALLOW UNLIMITED MIGRATION INTO THE STATE ON THE
BASIS OF OFFERING INSTANT MONEY AND PERMANENT INCOME TO ALL WHO CAN
MAKE THEIR WAY TO THE STATE REGARDLESS OF THEIR ABILITY TO CONTRIBUTE
TO THE ECONOMY."  H.B. 82, CONNECTICUT GENERAL ASSEMBLY HOUSE
PROCEEDINGS, FEBRUARY SPECIAL SESSION, 1965, VOL. II, PT. 7, P. 3504. 
IN PENNSYLVANIA, SHORTLY AFTER THE ENACTMENT OF THE ONE-YEAR
REQUIREMENT, THE ATTORNEY GENERAL ISSUED AN OPINION CONSTRUING THE ONE
YEAR REQUIREMENT STRICTLY BECAUSE "(ANY OTHER CONCLUSION WOULD TEND TO
ATTRACT THE DEPENDENTS OF OTHER STATES TO OUR COMMONWEALTH."  1937-1938
OFFICIAL OPINIONS OF THE ATTORNEY GENERAL, NO. 240, P. 110.  IN THE
DISTRICT OF COLUMBIA CASE, THE CONSTITUTIONALITY OF SEC. 3-203 WAS
FRANKLY DEFENDED IN THE DISTRICT COURT AND IN THIS COURT ON THE GROUND
THAT IT IS DESIGNED TO PROTECT THE JURISDICTION FROM AN INFLUX OF
PERSONS SEEKING MORE GENEROUS PUBLIC ASSISTANCE THAN MIGHT BE AVAILABLE
ELSEWHERE. 

WE DO NOT DOUBT THAT THE ONE-YEAR WAITING-PERIOD DEVICE IS WELL
SUITED TO DISCOURAGE THE INFLUX OF POOR FAMILIES IN NEED OF
ASSISTANCE.  AN INDIGENT WHO DESIRES TO MIGRATE, RESETTLE, FIND A NEW
JOB, AND START A NEW LIFE WILL DOUBTLESS HESITATE IF HE KNOWS THAT HE
MUST RISK MAKING THE MOVE WITHOUT THE POSSIBILITY OF FALLING BACK ON
STATE WELFARE ASSISTANCE DURING HIS FIRST YEAR OF RESIDENCE, WHEN HIS
NEED MAY BE MOST ACUTE.  BUT THE PURPOSE OF INHIBITING MIGRATION BY
NEEDY PERSONS INTO THE STATE IS CONSTITUTIONALLY IMPERMISSIBLE. 

THIS COURT LONG AGO RECOGNIZED THAT THE NATURE OF OUR FEDERAL UNION
AND OUR CONSTITUTIONAL CONCEPTS OF PERSONAL LIBERTY UNITE TO REQUIRE
THAT ALL CITIZENS BE FREE TO TRAVEL THROUGHOUT THE LENGTH AND BREADTH
OF OUR LAND UNINHIBITED BY STATUTES, RULES, OR REGULATIONS WHICH
UNREASONABLY BURDEN OR RESTRICT THIS MOVEMENT.  THAT PROPOSITION WAS
EARLY STATED BY CHIEF JUSTICE TANEY IN THE PASSENGER CASES, 7 HOW. 
283, 429 (1849): 

"FOR ALL THE GREAT PURPOSES FOR WHICH THE FEDERAL GOVERNMENT WAS
FORMED, WE ARE ONE PEOPLE, WITH ONE COMMON COUNTRY.  WE ARE ALL
CITIZENS OF THE UNITED STATES; AND, AS MEMBERS OF THE SAME COMMUNITY,
MUST HAVE THE RIGHT TO PASS AND REPASS THROUGH EVERY PART OF IT WITHOUT
INTERRUPTION, AS FREELY AS IN OUR OWN STATES." 

WE HAVE NO OCCASION TO ASCRIBE THE SOURCE OF THIS RIGHT TO TRAVEL
INTERSTATE TO A PARTICULAR CONSTITUTIONAL PROVISION.  /8/  IT SUFFICES
THAT, AS MR. JUSTICE STEWART SAID FOR THE COURT IN UNITED STATES V.
GUEST, 383 U.S. 745, 757-758 (1966): 

"THE CONSTITUTIONAL RIGHT TO TRAVEL FROM ONE STATE TO ANOTHER . . .
OCCUPIES A POSITION FUNDAMENTAL TO THE CONCEPT OF OUR FEDERAL UNION. 
IT IS A RIGHT THAT HAS BEEN FIRMLY ESTABLISHED AND REPEATEDLY
RECOGNIZED. 

     " . . . (THE RIGHT FINDS NO EXPLICIT MENTION IN THE

 CONSTITUTION.  THE REASON, IT HAS BEEN SUGGESTED, IS THAT A RIGHT

  SO ELEMENTARY WAS CONCEIVED FROM THE BEGINNING TO BE A NECESSARY

  CONCOMITANT OF THE STRONGER UNION THE CONSTITUTION CREATED.  IN

  ANY EVENT, FREEDOM TO TRAVEL THROUGHOUT THE UNITED STATES HAS

  LONG BEEN RECOGNIZED AS A BASIC RIGHT UNDER THE CONSTITUTION." 

THUS, THE PURPOSE OF DETERRING THE IN-MIGRATION OF INDIGENTS CANNOT
SERVE AS JUSTIFICATION FOR THE CLASSIFICATION CREATED BY THE ONE-YEAR
WAITING PERIOD, SINCE THAT PURPOSE IS CONSTITUTIONALLY IMPERMISSIBLE. 
IF A LAW HAS "NO OTHER PURPOSE . . . THAN TO CHILL THE ASSERTION OF
CONSTITUTIONAL RIGHTS BY PENALIZING THOSE WHO CHOOSE TO EXERCISE THEM,
THEN IT (IS) PATENTLY UNCONSTITUTIONAL."  UNITED STATES V. JACKSON, 390
U.S. 570, 581 (1968). 

ALTERNATIVELY, APPELLANTS ARGUE THAT EVEN IF IT IS IMPERMISSIBLE FOR
A STATE TO ATTEMPT TO DETER THE ENTRY OF ALL INDIGENTS, THE CHALLENGED
CLASSIFICATION MAY BE JUSTIFIED AS A PERMISSIBLE STATE ATTEMPT TO
DISCOURAGE THOSE INDIGENTS WHO WOULD ENTER THE STATE SOLELY TO OBTAIN
LARGER BENEFITS.  WE OBSERVE FIRST THAT NONE OF THE STATUTES BEFORE US
IS TAILORED TO SERVE THAT OBJECTIVE.  RATHER, THE CLASS OF BARRED
NEWCOMERS IS ALL-INCLUSIVE, LUMPING THE GREAT MAJORITY WHO COME TO THE
STATE FOR OTHER PURPOSES WITH THOSE WHO COME FOR THE SOLE PURPOSE OF
COLLECTING HIGHER BENEFITS.  IN ACTUAL OPERATION, THEREFORE, THE THREE
STATUTES ENACT WHAT IN EFFECT ARE NONREBUTTABLE PRESUMPTIONS THAT EVERY
APPLICANT FOR ASSISTANCE IN HIS FIRST YEAR OF RESIDENCE CAME TO THE
JURISDICTION SOLELY TO OBTAIN HIGHER BENEFITS.  NOTHING WHATEVER IN ANY
OF THESE RECORDS SUPPLIES ANY BASIS IN FACT FOR SUCH A PRESUMPTION. 
MORE FUNDAMENTALLY, A STATE MAY NO MORE TRY TO FENCE OUT THOSE
INDIGENTS WHO SEEK HIGHER WELFARE BENEFITS THAN IT MAY TRY TO FENCE OUT
INDIGENTS GENERALLY.  IMPLICIT IN ANY SUCH DISTINCTION IS THE NOTION
THAT INDIGENTS WHO ENTER A STATE WITH THE HOPE OF SECURING HIGHER
WELFARE BENEFITS ARE SOMEHOW LESS DESERVING THAN INDIGENTS WHO DO NOT
TAKE THIS CONSIDERATION INTO ACCOUNT.  BUT WE DO NOT PERCEIVE WHY A
MOTHER WHO IS SEEKING TO MAKE A NEW LIFE FOR HERSELF AND HER CHILDREN
SHOULD BE REGARDED AS LESS DESERVING BECAUSE SHE CONSIDERS, AMONG
OTHERS FACTORS, THE LEVEL OF A STATE'S PUBLIC ASSISTANCE.  SURELY SUCH
A MOTHER IS NO LESS DESERVING THAN A MOTHER WHO MOVES INTO A PARTICULAR
STATE IN ORDER TO TAKE ADVANTAGE OF ITS BETTER EDUCATIONAL FACILITIES. 

APPELLANTS ARGUE FURTHER THAT THE CHALLENGED CLASSIFICATION MAY BE
SUSTAINED AS AN ATTEMPT TO DISTINGUISH BETWEEN NEW AND OLD RESIDENTS ON
THE BASIS OF THE CONTRIBUTION THEY HAVE MADE TO THE COMMUNITY THROUGH
THE PAYMENT OF TAXES.  WE HAVE DIFFICULTY SEEING HOW LONG-TERM
RESIDENTS WHO QUALIFY FOR WELFARE ARE MAKING A GREATER PRESENT
CONTRIBUTION TO THE STATE IN TAXES THAN INDIGENT RESIDENTS WHO HAVE
RECENTLY ARRIVED.  IF THE ARGUMENT IS BASED ON CONTRIBUTIONS MADE IN
THE PAST BY THE LONG-TERM RESIDENTS, THERE IS SOME QUESTION, AS A
FACTUAL MATTER, WHETHER THIS ARGUMENT IS APPLICABLE IN PENNSYLVANIA
WHERE THE RECORD SUGGESTS THAT SOME 40% OF THOSE DENIED PUBLIC
ASSISTANCE BECAUSE OF THE WAITING PERIOD HAD LENGTHY PRIOR RESIDENCE IN
THE STATE.  /9/  BUT WE NEED NOT REST ON THE PARTICULAR FACTS OF THESE
CASES.  APPELLANTS' REASONING WOULD LOGICALLY PERMIT THE STATE TO BAR
NEW RESIDENTS FROM SCHOOLS, PARKS, AND LIBRARIES OR DEPRIVE THEM OF
POLICE AND FIRE PROTECTION.  INDEED IT WOULD PERMIT THE STATE TO
APPORTION ALL BENEFITS AND SERVICES ACCORDING TO THE PAST TAX
CONTRIBUTIONS OF ITS CITIZENS.  THE EQUAL PROTECTION CLAUSE PROHIBITS
SUCH AN APPORTIONMENT OF STATE SERVICES.  /10/ 

WE RECOGNIZE THAT A STATE HAS A VALID INTEREST IN PRESERVING THE
FISCAL INTEGRITY OF ITS PROGRAMS.  IT MAY LEGITIMATELY ATTEMPT TO LIMIT
ITS EXPENDITURES, WHETHER FOR PUBLIC ASSISTANCE, PUBLIC EDUCATION, OR
ANY OTHER PROGRAM.  BUT A STATE MAY NOT ACCOMPLISH SUCH A PURPOSE BY
INVIDIOUS DISTINCTIONS BETWEEN CLASSES OF ITS CITIZENS.  IT COULD NOT,
FOR EXAMPLE, REDUCE EXPENDITURES FOR EDUCATION BY BARRING INDIGENT
CHILDREN FROM ITS SCHOOLS.  SIMILARLY, IN THE CASES BEFORE US,
APPELLANTS MUST DO MORE THAN SHOW THAT DENYING WELFARE BENEFITS TO NEW
RESIDENTS SAVES MONEY.  THE SAVING OF WELFARE COSTS CANNOT JUSTIFY AN
OTHERWISE INVIDIOUS CLASSIFICATION.  /11/ 

IN SUM, NEITHER DETERRENCE OF INDIGENTS FROM MIGRATING TO THE STATE
NOR LIMITATION OF WELFARE BENEFITS TO THOSE REGARDED AS CONTRIBUTING TO
THE STATE IS A CONSTITUTIONALLY PERMISSIBLE STATE OBJECTIVE. 

       IV. 

APPELLANTS NEXT ADVANCE AS JUSTIFICATION CERTAIN ADMINISTRATIVE AND
RELATED GOVERNMENTAL OBJECTIVES ALLEGEDLY SERVED BY THE WAITING-PERIOD
REQUIREMENT.  /12/  THEY ARGUE THAT THE REQUIREMENT (1) FACILITATES THE
PLANNING OF THE WELFARE BUDGET; (2) PROVIDES AN OBJECTIVE TEST OF
RESIDENCY; (3) MINIMIZES THE OPPORTUNITY FOR RECIPIENTS FRAUDULENTLY TO
RECEIVE PAYMENTS FROM MORE THAN ONE JURISDICTION; AND (4) ENCOURAGES
EARLY ENTRY OF NEW RESIDENTS INTO THE LABOR FORCE. 

AT THE OUTSET, WE REJECT APPELLANTS' ARGUMENT THAT A MERE SHOWING OF
A RATIONAL RELATIONSHIP BETWEEN THE WAITING PERIOD AND THESE FOUR
ADMITTEDLY PERMISSIBLE STATE OBJECTIVES WILL SUFFICE TO JUSTIFY THE
CLASSIFICATION.  SEE LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61,
78 (1911); FLEMMING V. NESTOR, 363 U.S. 603, 611 (1960); MCGOWAN V.
MARYLAND, 366 U.S. 420, 426 (1961).  THE WAITING-PERIOD PROVISION
DENIES WELFARE BENEFITS TO OTHERWISE ELIGIBLE APPLICANTS SOLELY BECAUSE
THEY HAVE RECENTLY MOVED INTO THE JURISDICTION.  BUT IN MOVING FROM
STATE TO STATE OR TO THE DISTRICT OF COLUMBIA APPELLEES WERE EXERCISING
A CONSTITUTIONAL RIGHT, AND ANY CLASSIFICATION WHICH SERVES TO PENALIZE
THE EXERCISE OF THAT RIGHT, UNLESS SHOWN TO BE NECESSARY TO PROMOTE A
COMPELLING GOVERNMENTAL INTEREST, IS UNCONSTITUTIONAL.  CF. SKINNER V.
OKLAHOMA, 316 U.S. 535, 541 (1942); KOREMATSU V. UNITED STATES, 323
U.S. 214, 216 (1944); BATES V. LITTLE ROCK, 361 U.S. 516, 524 (1960);
SHERBERT V. VERNER, 374 U.S. 398, 406 (1963). 

THE ARGUMENT THAT THE WAITING-PERIOD REQUIREMENT FACILITATES BUDGET
PREDICTABILITY IS WHOLLY UNFOUNDED.  THE RECORDS IN ALL THREE CASES ARE
UTTERLY DEVOID OF EVIDENCE THAT EITHER STATE OR THE DISTRICT OF
COLUMBIA IN FACT USES THE ONE-YEAR REQUIREMENT AS A MEANS TO PREDICT
THE NUMBER OF PEOPLE WHO WILL REQUIRE ASSISTANCE IN THE BUDGE YEAR. 
NONE OF THE APPELLANTS TAKES A CENSUS OF NEW RESIDENTS OR COLLECTS ANY
OTHER DATA THAT WOULD REVEAL THE NUMBER OF NEWCOMERS IN THE STATE LESS
THAN A YEAR.  NOR ARE NEW RESIDENTS REQUIRED TO GIVE ADVANCE NOTICE OF
THEIR NEED FOR WELFARE ASSISTANCE.  /13/  THUS, THE WELFARE AUTHORITIES
CANNOT KNOW HOW MANY NEW RESIDENTS COME INTO THE JURISDICTION IN ANY
YEAR, MUCH LESS HOW MANY OF THEM WILL REQUIRE PUBLIC ASSISTANCE.  IN
THESE CIRCUMSTANCES, THERE IS SIMPLY NO BASIS FOR THE CLAIM THAT THE
ONE-YEAR WAITING REQUIREMENT SERVES THE PURPOSE OF MAKING THE WELFARE
BUDGET MORE PREDICTABLE.  IN CONNECTICUT AND PENNSYLVANIA THE
IRRELEVANCE OF THE ONE-YEAR REQUIREMENT TO BUDGETARY PLANNING IS
FURTHER UNDERSCORED BY THE FACT THAT TEMPORARY, PARTIAL ASSISTANCE IS
GIVEN TO SOME NEW RESIDENTS /14/  AND FULL ASSISTANCE IS GIVEN TO OTHER
NEW RESIDENTS UNDER RECIPROCAL AGREEMENTS.  /15/  FINALLY, THE CLAIM
THAT A ONE-YEAR WAITING REQUIREMENT IS USED FOR PLANNING PURPOSES IS
PLAINLY BELIED BY THE FACT THAT THE REQUIREMENT IS NOT ALSO IMPOSED ON
APPLICANTS WHO ARE LONG-TERM RESIDENTS, THE GROUP THAT RECEIVES THE
BULK OF WELFARE PAYMENTS.  IN SHORT, THE STATES RELY ON METHODS OTHER
THAN THE ONE-YEAR REQUIREMENT TO MAKE BUDGET ESTIMATES.  IN NO. 34, THE
DIRECTOR OF THE PENNSYLVANIA AND ELSEWHERE, HER OFFICE HAD ALREADY
ESTIMATED HOW MUCH THE ELIMINATION OF THE ONE-YEAR REQUIREMENT WOULD
COST AND THAT THE ESTIMATES OF COSTS OF OTHER CHANGES IN REGULATIONS
"HAVE PROVEN EXCEPTIONALLY ACCURATE." 

THE ARGUMENT THAT THE WAITING PERIOD SERVES AS AN ADMINISTRATIVELY
EFFICIENT RULE OF THUMB FOR DETERMINING RESIDENCY SIMILARLY WILL NOT
UNDERSTAND SCRUTINY.  THE RESIDENCE REQUIREMENT AND THE ONE-YEAR
WAITING-PERIOD REQUIREMENT ARE DISTINCT AND INDEPENDENT PREREQUISITES
FOR ASSISTANCE UNDER THESE THREE STATUTES, AND THE FACTS RELEVANT TO
THE DETERMINATION OF EACH ARE DIRECTLY EXAMINED BY THE WELFARE
AUTHORITIES.  /16/  BEFORE GRANTING AN APPLICATION, THE WELFARE
AUTHORITIES INVESTIGATE THE APPLICANT'S EMPLOYMENT, HOUSING, AND FAMILY
SITUATION AND IN THE COURSE OF THE INQUIRY NECESSARILY LEARN THE FACTS
UPON WHICH TO DETERMINE WHETHER THE APPLICANT IS A RESIDENT.  /17/ 

SIMILARLY, THERE IS NO NEED FOR A STATE TO USE THE ONE-YEAR WAITING
PERIOD AS A SAFEGUARD AGAINST FRAUDULENT RECEIPT OF BENEFITS; /18/  FOR
LESS DRASTIC MEANS ARE AVAILABLE, AND ARE EMPLOYED, TO MINIMIZE THAT
HAZARD.  OF COURSE, A STATE HAS A VALID INTEREST IN PREVENTING FRAUD BY
ANY APPLICANT, WHETHER A NEWCOMER OR A LONG-TIME RESIDENT.  IT IS NOT
DENIED, HOWEVER, THAT THE INVESTIGATIONS NOW CONDUCTED ENTAIL INQUIRIES
INTO FACTS RELEVANT TO THAT SUBJECT.  IN ADDITION, COOPERATION AMONG
STATE WELFARE DEPARTMENTS IS COMMON.  THE DISTRICT OF COLUMBIA, FOR
EXAMPLE PROVIDES INTERIM ASSISTANCE TO ITS FORMER RESIDENTS WHO HAVE
MOVED TO A STATE WHICH HAS A WAITING PERIOD.  AS A MATTER OF COURSE,
DISTRICT OFFICIALS SEND A LETTER TO THE WELFARE AUTHORITIES IN THE
RECIPIENT'S NEW COMMUNITY "TO REQUEST THE INFORMATION NEEDED TO
CONTINUE ASSISTANCE."  /19/  A LIKE PROCEDURE WOULD BE AN EFFECTIVE
SAFEGUARD AGAINST THE HAZARD OF DOUBLE PAYMENTS.  SINCE DOUBLE PAYMENTS
CAN BE PREVENTED BY A LETTER OR A TELEPHONE CALL, IT IS UNREASONABLE TO
ACCOMPLISH THIS OBJECTIVE BY THE BLUNDERBUSS METHOD OF DENYING
ASSISTANCE TO ALL INDIGENT NEWCOMERS FOR AN ENTIRE YEAR. 

PENNSYLVANIA SUGGESTS THAT THE ONE-YEAR WAITING PERIOD IS JUSTIFIED
AS A MEANS OF ENCOURAGING NEW RESIDENTS TO JOIN THE LABOR FORCE
PROMPTLY.  BUT THIS LOGIC WOULD ALSO REQUIRE A SIMILAR WAITING PERIOD
FOR LONG-TERM RESIDENTS OF THE STATE.  A STATE PURPOSE TO ENCOURAGE
EMPLOYMENT PROVIDES NO RATIONAL BASIS FOR IMPOSING A ONE-YEAR WAITING
PERIOD RESTRICTION ON NEW RESIDENTS ONLY. 

WE CONCLUDE THEREFORE THAT APPELLANTS IN THESE CASES DO NOT USE AND
HAVE NO NEED TO USE THE ONE-YEAR REQUIREMENT FOR THE GOVERNMENTAL
PURPOSES SUGGESTED.  THUS, EVEN UNDER TRADITIONAL EQUAL PROTECTION
TESTS A CLASSIFICATION OF WELFARE APPLICANTS ACCORDING TO WHETHER THEY
HAVE LIVED IN THE STATE FOR ONE YEAR WOULD SEEM IRRATIONAL AND
UNCONSTITUTIONAL.  /20/  BUT, OF COURSE, THE TRADITIONAL CRITERIA DO
NOT APPLY IN THESE CASES.  SINCE THE CLASSIFICATION HERE TOUCHES ON THE
FUNDAMENTAL RIGHT OF INTERSTATE MOVEMENT, ITS CONSTITUTIONALITY MUST BE
JUDGED BY THE STRICTER STANDARD OF WHETHER IT PROMOTES A COMPELLING
STATE INTEREST.  UNDER THIS STANDARD, THE WAITING-PERIOD REQUIREMENT
CLEARLY VIOLATES THE EQUAL PROTECTION CLAUSE.  /21/

        V. 

CONNECTICUT AND PENNSYLVANIA ARGUE, HOWEVER, THAT THE CONSTITUTIONAL
CHALLENGE TO THE WAITING-PERIOD REQUIREMENTS MUST FAIL BECAUSE CONGRESS
EXPRESSLY APPROVED THE IMPOSITION OF THE REQUIREMENT BY THE STATES AS
PART OF THE JOINTLY FUNDED AFDC PROGRAM. 

U.S.C. 602(B), PROVIDES THAT: 

"THE SECRETARY SHALL APPROVE ANY (STATE ASSISTANCE) PLAN WHICH
FULFILLS THE CONDITIONS SPECIFIED IN SUBSECTION (A) OF THIS SECTION,
EXCEPT THAT HE SHALL NOT APPROVE ANY PLAN WHICH IMPOSES AS A CONDITION
OF ELIGIBILITY FOR AID TO FAMILIES WITH DEPENDENT CHILDREN, A RESIDENCE
REQUIREMENT WHICH DENIES AID WITH RESPECT TO ANY CHILD RESIDING IN THE
STATE (1) WHO HAS RESIDED IN THE STATE FOR ONE YEAR IMMEDIATELY
PRECEDING THE APPLICATION FOR SUCH AID, OR (2) WHO WAS BORN WITHIN ONE
YEAR IMMEDIATELY PRECEDING THE APPLICATION, IF THE PARENT OR OTHER
RELATIVE WITH WHOM THE CHILD IS LIVING HAS RESIDED IN THE STATE FOR ONE
YEAR IMMEDIATELY PRECEDING THE BIRTH." 

ON ITS FACE, THE STATUTE DOES NOT APPROVE, MUCH LESS PRESCRIBE, A ONE
YEAR REQUIREMENT.  IT MERELY DIRECTS THE SECRETARY OF HEALTH,
EDUCATION, AND WELFARE NOT TO DISAPPROVE PLANS SUBMITTED BY THE STATES
BECAUSE THEY INCLUDE SUCH A REQUIREMENT.  /22/  THE SUGGESTION THAT
CONGRESS ENACTED THAT DIRECTIVE TO ENCOURAGE STATE PARTICIPATION IN THE
AFDC PROGRAM IS COMPLETELY REFUTED BY THE LEGISLATIVE HISTORY OF THE
CURB HARDSHIPS RESULTING FROM LENGTHY RESIDENCE REQUIREMENTS.  RATHER
THAN CONSTITUTING AN APPROVAL OR A PRESCRIPTION OF THE REQUIREMENT IN
STATE PLANS, THE DIRECTIVE WAS THE MEANS CHOSEN BY CONGRESS TO DENY
FEDERAL FUNDING TO ANY STATE WHICH PERSISTED IN STIPULATING EXCESSIVE
RESIDENCE REQUIREMENTS AS A CONDITION OF THE PAYMENT OF BENEFITS. 

ON YEAR BEFORE THE SOCIAL SECURITY ACT WAS PASSED, 20 OF THE 45
STATES WHICH HAD AID TO DEPENDENT CHILDREN PROGRAMS REQUIRED RESIDENCE
IN THE STATE FOR TOW OR MORE YEARS.  NINE OTHER STATES REQUIRED TWO OR
MORE YEARS OF RESIDENCE IN A PARTICULAR TOWN OR COUNTY.  AND 33
JURISDICTIONS REQUIRED AT LEAST ONE YEAR OF RESIDENCE IN A PARTICULAR
TOWN OR COUNTY.  /23/  CONGRESS DETERMINED TO COMBAT THIS
RESTRICTIONIST POLICY.  BOTH THE HOUSE AND SENATE COMMITTEE REPORTS
EXPRESSLY STATED THAT THE OBJECTIVE OF SEC. 402(B) WAS TO COMPEL
"(LIBERALITY OF RESIDENCE REQUIREMENT."  /24/  NOT A SINGLE INSTANCE
CAN BE FOUND IN THE DEBATES OR COMMITTEE REPORTS SUPPORTING THE
CONTENTION THAT SEC. 402(B) WAS ENACTED TO ENCOURAGE PARTICIPATION BY
THE STATES IN THE AFDC PROGRAM.  TO THE CONTRARY, THOSE FEW WHO
ADDRESSED THEMSELVES TO WAITING-PERIOD REQUIREMENTS EMPHASIZED THAT
PARTICIPATION WOULD DEPEND ON A STATE'S REPEAL OR DRASTIC REVISION OF
EXISTING REQUIREMENTS.  A CONGRESSIONAL DEMAND ON 41 STATES TO REPEAL
OR DRASTICALLY REVISE OFFENDING STATUTES IS HARDLY A WAY TO ENLIST
THEIR COOPERATION.  /25/ 

BUT EVEN IF WE WERE TO ASSUME, ARGUENDO, THAT CONGRESS DID APPROVE
THE IMPOSITION OF A ONE-YEAR WAITING PERIOD, IT IS THE RESPONSIVE STATE
LEGISLATION WHICH INFRINGES CONSTITUTIONAL RIGHTS.  BY ITSELF SEC.
402(B) HAS ABSOLUTELY NO RESTRICTIVE EFFECT.  IT IS THEREFORE NOT THAT
STATUTE BUT ONLY THE STATE REQUIREMENTS WHICH POSE THE CONSTITUTIONAL
QUESTION. 

FINALLY, EVEN IF IT COULD BE ARGUED THAT THE CONSTITUTIONALITY OF
SEC. 402(B) IS SOMEHOW AT ISSUE HERE, IT FOLLOWS FROM WHAT WE HAVE SAID
THAT THE PROVISION, INSOFAR AS IT PERMITS THE ONE-YEAR WAITING-PERIOD
REQUIREMENT, WOULD BE UNCONSTITUTIONAL.  CONGRESS MAY NOT AUTHORIZE THE
STATES TO VIOLATE THE EQUAL PROTECTION CLAUSE.  PERHAPS CONGRESS COULD
INDUCE WIDER STATE PARTICIPATION IN SCHOOL CONSTRUCTION IF IT
AUTHORIZED THE USE OF JOINT FUNDS FOR THE BUILDING OF SEGREGATED
SCHOOLS.  BUT COULD IT SERIOUSLY BE CONTENDED THAT CONGRESS WOULD BE
CONSTITUTIONALLY JUSTIFIED IN SUCH AUTHORIZATION BY THE NEED TO SECURE
STATE COOPERATION?  CONGRESS IS WITHOUT POWER TO ENLIST STATE
COOPERATION IN A JOINT FEDERAL-STATE PROGRAM BY LEGISLATION WHICH
AUTHORIZES THE STATES TO VIOLATE THE EQUAL PROTECTION CLAUSE. 
KATZENBACH V. MORGAN, 384 U.S. 641, 651, N. 10 (1966). 
VI. 

THE WAITING-PERIOD REQUIREMENT IN THE DISTRICT OF COLUMBIA CODE
INVOLVED IN NO. 33 IS ALSO UNCONSTITUTIONAL EVEN THOUGH IT WAS ADOPTED
BY CONGRESS AS AN EXERCISE OF FEDERAL POWER.  IN TERMS OF FEDERAL
POWER, THE DISCRIMINATION CREATED BY THE ONE-YEAR REQUIREMENT VIOLATES
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  "(WHILE THE FIFTH
AMENDMENT CONTAINS NO EQUAL PROTECTION CLAUSE, IT DOES FORBID
DISCRIMINATION THAT IS 'SO UNJUSTIFIABLE AS TO BE VIOLATIVE OF DUE
PROCESS.'"  SCHNEIDER V. RUSK, 377 U.S. 163, 168 (1964); BOLLING V.
SHARPE, 347 U.S. 497 (1954).  FOR THE REASONS WE HAVE STATED IN
INVALIDATING THE PENNSYLVANIA AND CONNECTICUT PROVISIONS, THE DISTRICT
OF COLUMBIA PROVISION IS ALSO INVALID-- THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT PROHIBITS CONGRESS FROM DENYING PUBLIC ASSISTANCE TO
POOR PERSONS OTHERWISE ELIGIBLE SOLELY ON THE GROUND THAT THEY HAVE NOT
BEEN RESIDENTS OF THE DISTRICT OF COLUMBIA FOR ONE YEAR AT THE TIME
THEIR APPLICATIONS ARE FILED. 

ACCORDINGLY, THE JUDGMENTS IN NOS. 9, 33, AND 34 ARE

   AFFIRMED. 

/0/  TOGETHER WITH NO. 33, WASHINGTON ET AL. V. LEGRANT ET AL., ON
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA, ARGUED MAY 1, 1968, AND NO. 34, REYNOLDS ET AL. V. SMITH ET
AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA, ARGUED MAY 1-2, 1968, BOTH REARGUED ON
OCTOBER 23-24, 1968. 

/1/  ACCORD:  ROBERTSON V. OTT, 284 F.SUPP.  735 (D.C. MASS. 1968);
JOHNSON V. ROBINSON, CIVIL NO. 67-1883 (D.C.N.D. ILL., FEB. 20, 1968);
RAMOS V. HEALTH AND SOCIAL SERVICES BD., 276 F.SUPP.  474 (D.C.E.D.
WIS. 1967); GREEN V. DEPT. OF PUB. WELFARE, 270 F.SUPP.  173 (D.C. DEL.
1967).  CONTRA:  WAGGONER V. ROSENN, 286 F.SUPP.  275 (D.C.M.D. PA.
1968); SEE ALSO PEOPLE EX REL. HEYDENREICH V. LYONS, 374 ILL. 557, 30
N.E.2D 46 (1940). 

ALL BUT ONE OF THE APPELLEES HEREIN APPLIED FOR ASSISTANCE UNDER THE
AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM WHICH WAS
ESTABLISHED BY THE SOCIAL SECURITY ACT OF 1935.  49 STAT. 627, AS
AMENDED, 42 U.S.C. 601-609.  THE PROGRAM PROVIDES PARTIAL FEDERAL
FUNDING OF STATE ASSISTANCE PLANS WHICH MEET CERTAIN SPECIFICATIONS. 
ONE APPELLEE APPLIED FOR AID TO THE PERMANENTLY AND TOTALLY DISABLED
WHICH IS ALSO JOINTLY FUNDED BY THE STATES AND THE FEDERAL GOVERNMENT. 
42 U.S.C. 1351-1355. 

/2/  CONN. GEN. STAT. REV. SEC. 17-2D (1965 SUPP.), NOW SEC. 17-2C,
PROVIDES: "WHEN ANY PERSON COMES INTO THIS STATE WITHOUT VISIBLE MEANS
OF SUPPORT FOR THE IMMEDIATE FUTURE AND APPLIES FOR AID TO DEPENDENT
CHILDREN UNDER CHAPTER 301 OR GENERAL ASSISTANCE UNDER PART I OF
CHAPTER 308 WITHIN ONE YEAR FROM HIS ARRIVAL, SUCH PERSON SHALL BE
ELIGIBLE ONLY FOR TEMPORARY AID OR CARE UNTIL ARRANGEMENTS ARE MADE FOR
HIS RETURN, PROVIDED INELIGIBILITY FOR AID TO DEPENDENT CHILDREN SHALL
NOT CONTINUE BEYOND THE MAXIMUM FEDERAL RESIDENCE REQUIREMENT."  AN
EXCEPTION IS MADE FOR THOSE PERSONS WHO COME TO CONNECTICUT WITH A BONA
FIDE JOB OFFER OR ARE SELF-SUPPORTING UPON ARRIVAL IN THE STATE AND FOR
THREE MONTHS THEREAFTER.  1 CONN. WELFARE MANUAL, C. II, SECS. 219.1
219.2 (1966). 

/3/  D.C. CODE ANN. SEC. 3-203 (1967) PROVIDES: 

"PUBLIC ASSISTANCE SHALL BE AWARDED TO OR ON BEHALF OF ANY NEEDY
INDIVIDUAL WHO EITHER (A) HAS RESIDED IN THE DISTRICT FOR ONE YEAR
IMMEDIATELY PRECEDING THE DATE OF FILING HIS APPLICATION FOR SUCH
ASSISTANCE; OR (B) WHO WAS BORN WITHIN ONE YEAR IMMEDIATELY PRECEDING
THE APPLICATION FOR SUCH AID, IF THE PARENT OR OTHER RELATIVE WITH WHOM
THE CHILD IS LIVING HAS RESIDED IN THE DISTRICT FOR ONE YEAR
IMMEDIATELY PRECEDING THE BIRTH; OR (C) IS OTHERWISE WITHIN ONE OF THE
CATEGORIES OF PUBLIC ASSISTANCE ESTABLISHED BY THIS CHAPTER."  SEE D.C.
HANDBOOK OF PUB. ASSISTANCE POLICIES AND PROCEDURES, HPA-2, EL 9.1, I,
III (1966) (HEREINAFTER CITED AS D.C. HANDBOOK). 

/4/  IN EX PARTE COGDELL, 342 U.S. 163 (1951), THIS COURT REMANDED
TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT TO
DETERMINE WHETHER 28 U.S.C. 2282, REQUIRING A THREE-JUDGE COURT WHEN
THE CONSTITUTIONALITY OF AN ACT OF CONGRESS IS CHALLENGED, APPLIED TO
ACTS OF CONGRESS PERTAINING SOLELY TO THE DISTRICT OF COLUMBIA.  THE
CASE WAS MOOTED BELOW, AND THE QUESTION HAS NEVER BEEN EXPRESSLY
RESOLVED.  HOWEVER, IN BERMAN V. PARKER, 348 U.S. 26 (1954), THIS COURT
HEARD AN APPEAL FROM A THREE-JUDGE COURT IN A CASE INVOLVING THE
CONSTITUTIONALITY OF A DISTRICT OF COLUMBIA STATUTE.  MOREOVER, THREE
JUDGE DISTRICT COURTS IN THE DISTRICT OF COLUMBIA HAVE CONTINUED TO
HEAR CASES INVOLVING SUCH STATUTES.  SEE, E.G., HOBSON V. HANSEN, 265
F.SUPP.  902 (1967).  SECTION 2282 REQUIRES A THREE JUDGE COURT TO HEAR
A CHALLENGE TO THE CONSTITUTIONALITY OF "ANY ACT OF CONGRESS."  WE SEE
NO REASON TO MAKE AN EXCEPTION FOR ACTS OF CONGRESS PERTAINING TO THE
DISTRICT OF COLUMBIA. 

/5/  PA. STAT., TIT. 62, SEC. 432(6) (1968).  SEE ALSO PA. PUB.
ASSISTANCE MANUAL SECS. 3150-3151 (1962).  SECTION 432(6) PROVIDES: 

"ASSISTANCE MAY BE GRANTED ONLY TO OR IN BEHALF OF A PERSON RESIDING
IN PENNSYLVANIA WHO (I) HAS RESIDED THEREIN FOR AT LEAST ONE YEAR
IMMEDIATELY PRECEDING THE DATE OF APPLICATION; (II) LAST RESIDED IN A
STATE WHICH, BY LAW, REGULATION OR RECIPROCAL AGREEMENT WITH
PENNSYLVANIA, GRANTS PUBLIC ASSISTANCE TO OR IN BEHALF OF A PERSON WHO
HAS RESIDED IN SUCH STATE FOR LESS THAN ONE YEAR; (III) IS A MARRIED
WOMAN RESIDING WITH A HUSBAND WHO MEETS THE REQUIREMENT PRESCRIBED IN
SUBCLAUSE (I) OR (II) OF THIS CLAUSE; OR (IV) IS A CHILD LESS THAN ONE
YEAR OF AGE WHOSE PARENT, OR RELATIVE WITH WHOM HE IS RESIDING, MEETS
THE REQUIREMENT PRESCRIBED IN SUBCLAUSE (I), (II) OR (III) OF THIS
CLAUSE OR RESIDED IN PENNSYLVANIA FOR AT LEAST ONE YEAR IMMEDIATELY
PRECEDING THE CHILD'S BIRTH.  NEEDY PERSONS WHO DO NOT MEET ANY OF THE
REQUIREMENTS STATED IN THIS CLAUSE AND WHO ARE TRANSIENTS OR WITHOUT
RESIDENCE IN ANY STATE, MAY BE GRANTED ASSISTANCE IN ACCORDANCE WITH
RULES, REGULATIONS, AND STANDARDS ESTABLISHED BY THE DEPARTMENT." 

/6/  THIS CONSTITUTIONAL CHALLENGE CANNOT BE ANSWERED BY THE
ARGUMENT THAT PUBLIC ASSISTANCE BENEFITS ARE A "PRIVILEGE" AND NOT A
"RIGHT."  SEE SHERBERT V. VERNER, 374 U.S. 398, 404 (1963). 

/7/  THE WAITING-PERIOD REQUIREMENT HAS ITS ANTECEDENTS IN LAWS
PREVALENT IN ENGLAND AND THE AMERICAN COLONIES CENTURIES AGO WHICH
PERMITTED THE EJECTION OF INDIVIDUALS AND FAMILIES IF LOCAL AUTHORITIES
THOUGHT THEY MIGHT BECOME PUBLIC CHARGES.  FOR EXAMPLE, THE PREAMBLE OF
THE ENGLISH LAW OF SETTLEMENT AND REMOVAL OF 1662 EXPRESSLY RECITED THE
CONCERN, ALSO SAID TO JUSTIFY THE THREE STATUTES BEFORE US, THAT LARGE
NUMBERS OF THE POOR WERE MOVING TO PARISHES WHERE MORE LIBERAL RELIEF
POLICIES WERE IN EFFECT.  SEE GENERALLY COLL, PERSPECTIVES IN PUBLIC
WELFARE:  THE ENGLISH HERITAGE, 4 WELFARE IN REVIEW, NO. 3, P. 1
(1966).  THE 1662 LAW AND THE EARLIER ELIZABETHAN POOR LAW OF 1601 WERE
THE MODELS ADOPTED BY THE AMERICAN COLONIES.  NEWCOMERS TO A CITY,
TOWN, OR COUNTY WHO MIGHT BECOME PUBLIC CHARGES WERE "WARNED OUT" OR
"PASSED ON" TO THE NEXT LOCALITY.  INITIALLY, THE FUNDS FOR WELFARE
PAYMENTS WERE RAISED BY LOCAL TAXES, AND THE CONTROVERSY AS TO
RESPONSIBILITY FOR PARTICULAR INDIGENTS WAS BETWEEN LOCALITIES IN THE
SAME STATE.  AS STATES-- FIRST ALONE AND THEN WITH FEDERAL GRANTS--
ASSUMED THE MAJOR RESPONSIBILITY, THE CONTEST OF NONRESPONSIBILITY
BECAME INTERSTATE. 

/8/  IN CORFIELD V. CORYELL, 6 F.CAS.  546, 552 (NO. 3230) (C.C.E.D.
PA. 1825), PAUL V. VIRGINIA, 8 WALL.  168, 180 (1869), AND WARD V.
MARYLAND, 12 WALL.  418, 430 (1871), THE RIGHT TO TRAVEL INTERSTATE WAS
GROUNDED UPON THE PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV, SEC. 2. 
SEE ALSO SLAUGHTER-HOUSE CASES, 16 WALL.  36, 79 (1873); TWINING V. NEW
JERSEY, 211 U.S. 78, 97 (1908).  IN EDWARDS V. CALIFORNIA, 314 U.S.
160, 181, 183-185 (1941) (DOUGLAS AND JACKSON, JJ., CONCURING), AND
TWINING V. NEW JERSEY, SUPRA, RELIANCE WAS PLACED ON THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT.  SEE ALSO CRANDALL V.
NEVADA, 6 WALL.  35 (1868).  IN EDWARDS V. CALIFORNIA, SUPRA, AND THE
PASSENGER CASES, 7 HOW.  283 (1849), A COMMERCE CLAUSE APPROACH WAS
EMPLOYED. 

SEE ALSO KENT V. DULLES, 357 U.S. 116, 125 (1958); APTHEKER V.
SECRETARY OF STATE, 378 U.S. 500, 505-506 (1964); ZEMEL V. RUSK, 381
U.S. 1, 14 (1965), WHERE THE FREEDOM OF AMERICANS TO TRAVEL OUTSIDE THE
COUNTRY WAS GROUNDED UPON THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

/9/  FURTHERMORE, THE CONTRIBUTION RATIONALE CAN HARDLY EXPLAIN WHY
THE DISTRICT OF COLUMBIA AND PENNSYLVANIA BAR PAYMENTS TO CHILDREN WHO
HAVE NOT LIVED IN THE JURISDICTION FOR A YEAR REGARDLESS OF WHETHER THE
PARENTS HAVE LIVED IN THE JURISDICTION FOR THAT PERIOD.  SEE D.C. CODE
SEC. 3-203; D.C. HANDBOOK, EL 9.1, IC) (1966); PA. STAT., TIT. 62, SEC.
432(6) (1968).  CLEARLY, THE CHILDREN WHO WERE BARRED WOULD NOT HAVE
MADE A CONTRIBUTION DURING THAT YEAR. 

/10/  WE ARE NOT DEALING HERE WITH STATE INSURANCE PROGRAMS WHICH
MAY LEGITIMATELY TIE THE AMOUNT OF BENEFITS TO THE INDIVIDUAL'S
CONTRIBUTIONS. 

/11/  IN RINALDI V. YEAGER, 384 U.S. 305 (1966), NEW JERSEY
ATTEMPTED TO REDUCE EXPENDITURES BY REQUIRING PRISONERS WHO TOOK AN
UNSUCCESSFUL APPEAL TO REIMBURSE THE STATE OUT OF THEIR INSTITUTIONAL
EARNINGS FOR THE COST OF FURNISHING A TRIAL TRANSCRIPT.  THIS COURT
HELD THE NEW JERSEY STATUTE UNCONSTITUTIONAL BECAUSE IT DID NOT REQUIRE
SIMILAR REPAYMENTS FROM UNSUCCESSFUL APPELLANTS GIVEN A SUSPENDED
SENTENCE, PLACED ON PROBATION, OR SENTENCED ONLY TO A FINE.  THERE WAS
NO RATIONAL BASIS FOR THE DISTINCTION BETWEEN UNSUCCESSFUL APPELLANTS
WHO WERE IN PRISON AND THOSE WHO WERE NOT. 

/12/  APPELLANT IN NO. 9, THE CONNECTICUT WELFARE COMMISSIONER,
DISCLAIMS ANY RELIANCE ON THIS CONTENTION.  IN NO. 34, THE DISTRICT
COURT FOUND AS A FACT THAT THE PENNSYLVANIA REQUIREMENT SERVED NONE OF
THE CLAIMED FUNCTIONS.  277 F.SUPP.  65, 68 (1967). 

/13/  OF COURSE, SUCH ADVANCE NOTICE WOULD INEVITABLY BE UNRELIABLE
SINCE SOME WHO REGISTERED WOULD NOT NEED WELFARE A YEAR LATER WHILE
OTHERS WHO DID NOT REGISTER WOULD NEED WELFARE. 

/14/  SEE CONN. GEN. STAT. REV. SEC. 17-2D, NOW SEC. 17-2C, AND PA.
PUB. ASSISTANCE MANUAL SEC. 3154 (1968). 

/15/  BOTH CONNECTICUT AND PENNSYLVANIA HAVE ENTERED INTO OPEN-ENDED
INTERSTATE COMPACTS IN WHICH THEY HAVE AGREED TO ELIMINATE THE
DURATIONAL REQUIREMENT FOR ANYONE WHO COMES FROM ANOTHER STATE WHICH
HAS ALSO ENTERED INTO THE COMPACT.  CONN. GEN. STAT. REV. SEC. 17-21A
(1968); PA. PUB. ASSISTANCE MANUAL SEC. 3150, APP. I (1966). 

/16/  IN PENNSYLVANIA, THE ONE-YEAR WAITING-PERIOD REQUIREMENT, BUT
NOT THE RESIDENCY REQUIREMENT, IS WAIVED UNDER RECIPROCAL AGREEMENTS. 
PA. STAT., TIT. 62, SEC. 432(6) (1968); PA. PUB. ASSISTANCE MANUAL SEC.
3151.21 (1962). 

1 CONN. WELFARE MANUAL, C. II, SEC. 220 (1966), PROVIDES THAT
"(RESIDENCE WITHIN THE STATE SHALL MEAN THAT THE APPLICANT IS LIVING IN
AN ESTABLISHED PLACE OF ABODE AND THE PLAN IS TO REMAIN."  A PERSON WHO
MEETS THIS REQUIREMENT DOES NOT HAVE TO WAIT A YEAR FOR ASSISTANCE IF
HE ENTERED THE STATE WITH A BONA FIDE JOB OFFER OR WITH SUFFICIENT
FUNDS TO SUPPORT HIMSELF WITHOUT WELFARE FOR THREE MONTHS.  ID., AT
SEC. 219.2. 

HEW HANDBOOK OF PUB. ASSISTANCE ADMINISTRATION, PT. IV, SEC. 3650
(1946), CLEARLY DISTINGUISHES BETWEEN RESIDENCE AND DURATION OF
RESIDENCE.  IT DEFINES RESIDENCE, AS IS CONVENTIONAL, IN TERMS OF
INTENT TO REMAIN IN THE JURISDICTION, AND IT INSTRUCTS INTERVIEWERS
THAT RESIDENCE AND LENGTH OF RESIDENCE "ARE TWO DISTINCT ASPECTS . . .
" 

/17/  SEE, E.G., D.C. HANDBOOK, CHAPTERS ON ELIGIBILITY PAYMENTS,
REQUIREMENTS, RESOURCES, AND REINVESTIGATION FOR AN INDICATION OF HOW
THOROUGH THESE INVESTIGATIONS ARE.  SEE ALSO 1 CONN. WELFARE MANUAL, C.
I (1967); PA. PUB. ASSISTANCE MANUAL SECS. 3170-3330 (1962). 

THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE HAS PROPOSED THE
ELIMINATION OF INDIVIDUAL INVESTIGATIONS, EXCEPT FOR SPOT CHECKS, AND
THE SUBSTITUTION OF A DECLARATION SYSTEM, UNDER WHICH THE "AGENCY
ACCEPTS THE STATEMENTS OF THE APPLICANT FOR OR RECIPIENT OF ASSISTANCE,
ABOUT FACTS THAT ARE WITHIN HIS KNOWLEDGE AND COMPETENCE . . . AS A
BASIS FOR DECISIONS REGARDING HIS ELIGIBILITY AND EXTENT OF
ENTITLEMENT."  HEW, DETERMINATION OF ELIGIBILITY FOR PUBLIC ASSISTANCE
PROGRAMS, 33 FED.REG.  17189 (1968).  SEE ALSO HOSHINO, SIMPLIFICATION
OF THE MEANS TEST AND ITS CONSEQUENCES, 41 SOC.SERV.REV.  237, 241-149
(1967); BURNS, WHAT'S WRONG WITH PUBLIC WELFARE?, 36 SOC.SERV.REV. 
111, 114-115 (1962).  PRESUMABLY THE STATEMENT OF AN APPLICANT THAT HE
INTENDS TO REMAIN IN THE JURISDICTION WOULD BE ACCEPTED UNDER A
DECLARATION SYSTEM. 

/18/  THE UNCONCERN OF CONNECTICUT AND PENNSYLVANIA WITH THE ONE
YEAR REQUIREMENT AS A MEANS OF PREVENTING FRAUD IS MADE APPARENT BY THE
WAIVER OF THE REQUIREMENT IN RECIPROCAL AGREEMENTS WITH OTHER STATES. 
SEE N. 15, SUPRA. 

/19/  D.C. HANDBOOK, RV 2.1, I, IIB) (1967).  SEE ALSO PA. PUB.
ASSISTANCE MANUAL SEC. 3153 (1962). 

/20/  UNDER THE TRADITIONAL STANDARD, EQUAL PROTECTION IS DENIED
ONLY IF THE CLASSIFICATION IS "WITHOUT ANY REASONABLE BASIS," LINDSLEY
V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78 (1911); SEE ALSO FLEMMING
V. NESTOR, 363 U.S. 603 (1960). 

/21/  WE IMPLY NO VIEW OF THE VALIDITY OF WAITING-PERIOD OR
RESIDENCE REQUIREMENTS DETERMINING ELIGIBILITY TO VOTE, ELIGIBILITY FOR
TUITION-FREE EDUCATION, TO OBTAIN A LICENSE TO PRACTICE A PROFESSION,
TO HUNT OR FISH, AND SO FORTH.  SUCH REQUIREMENTS MAY PROMOTE
COMPELLING STATE INTERESTS ON THE ONE HAND, OR, ON THE OTHER, MAY NOT
BE PENALTIES UPON THE EXERCISE OF THE CONSTITUTIONAL RIGHT OF
INTERSTATE TRAVEL.     /22/  AS OF 1964, 11 JURISDICTIONS IMPOSED NO
RESIDENCE REQUIREMENT WHATEVER FOR AFDC ASSISTANCE.  THEY WERE ALASKA,
GEORGIA, HAWAII, KENTUCKY, NEW JERSEY, NEW YORK, RHODE ISLAND, VERMONT,
GUAM, PUERTO RICO, AND THE VIRGIN ISLANDS.  SEE HEW, CHARACTERISTICS OF
STATE PUBLIC ASSISTANCE PLANS UNDER THE SOCIAL SECURITY ACT (PUB.
ASSISTANCE REP. NO. 50, 1964 ED.). 

/23/  SOCIAL SECURITY BOARD, SOCIAL SECURITY IN AMERICA 235-236
(1937). 

/24/  H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 24; S. REP. NO. 628,
74TH CONG., 1ST SESS., 35.  FURTHERMORE, THE HOUSE REPORT CITED
PRESIDENT ROOSEVELT'S STATEMENT IN HIS SOCIAL SECURITY MESSAGE THAT
"PEOPLE WANT DECENT HOMES TO LIVE IN; THEY WANT TO LOCATE THEM WHERE
THEY CAN ENGAGE IN PRODUCTIVE WORK . . . " H.R. REP., SUPRA, AT 2. 
CLEARLY THIS WAS A CALL FOR GREATER FREEDOM OF MOVEMENT. 

IN ADDITION TO THE STATEMENT IN THE ABOVE COMMITTEE REPORT, SEE THE
REMARKS OF REP. DOUGHTON (FLOOR MANAGER OF THE SOCIAL SECURITY BILL IN
THE HOUSE) AND REP. VINSON.  79 CONG.REC.  5474, 5602-5603 (1935). 
THESE REMARKS WERE MADE IN RELATION TO THE WAITING-PERIOD REQUIREMENTS
FOR OLD-AGE ASSISTANCE, BUT THEY APPLY EQUALLY TO THE AFDC PROGRAM. 

/25/  SECTION 402(B) REQUIRED THE REPEAL OF 30 STATE STATUTES WHICH
IMPOSED TOO LONG A WAITING PERIOD IN THE STATE OR PARTICULAR TOWN OR
COUNTY AND 11 STATE STATUTES (AS WELL AS THE HAWAII STATUTE) WHICH
REQUIRED RESIDENCE IN A PARTICULAR TOWN OR COUNTY.  SEE SOCIAL SECURITY
BOARD, SOCIAL SECURITY IN AMERICA 235-236 (1937). 

IT IS APPARENT THAT CONGRESS WAS NOT INTIMATING ANY VIEW OF THE
CONSTITUTIONALITY OF A ONE-YEAR LIMITATION.  THE CONSTITUTIONALITY OF
ANY SCHEME OF FEDERAL SOCIAL SECURITY LEGISLATION WAS A MATTER OF DOUBT
AT THAT TIME IN LIGHT OF THE DECISION IN SCHECHTER POULTRY CORP. V.
UNITED STATES, 295 U.S. 495 (1935).  THROUGHOUT THE HOUSE DEBATES
CONGRESSMEN DISCUSSED THE CONSTITUTIONALITY OF THE FUNDAMENTAL TAXING
PROVISIONS OF THE SOCIAL SECURITY ACT, SEE, E.G., 79 CONG.REC.  5783
(1935) (REMARKS OF REP. COOPER), BUT NOT ONCE DID THEY DISCUSS THE
CONSTITUTIONALITY OF SEC. 402(B). 

MR. JUSTICE STEWART, CONCURRING. 

IN JOINING THE OPINION OF THE COURT, I ADD A WORD IN RESPONSE TO THE
DISSENT OF MY BROTHER HARLAN, WHO, I THINK, HAS QUITE MISAPPREHENDED
WHAT THE COURT'S OPINION SAYS. 

THE COURT TODAY DOES NOT "PICK OUT PARTICULAR HUMAN ACTIVITIES,
CHARACTERIZE THEM AS 'FUNDAMENTAL,' AND GIVE THEM ADDED PROTECTION . .
. " TO THE CONTRARY, THE COURT SIMPLY RECOGNIZES, AS IT MUST, AN
ESTABLISHED CONSTITUTIONAL RIGHT, AND GIVES TO THAT RIGHT NO LESS
PROTECTION THAN THE CONSTITUTION ITSELF DEMANDS. 

"THE CONSTITUTIONAL RIGHT TO TRAVEL FROM ONE STATE TO ANOTHER . . .
HAS BEEN FIRMLY ESTABLISHED AND REPEATEDLY RECOGNIZED."  UNITED STATES
V. GUEST, 383 U.S. 745, 757.  THIS CONSTITUTIONAL RIGHT, WHICH, OF
COURSE, INCLUDES THE RIGHT OF "ENTERING AND ABIDING IN ANY STATE IN THE
UNION," TRUAX V. RAICH, 239 U.S. 33, 39, IS NOT A MERE CONDITIONAL
LIBERTY SUBJECT TO REGULATION AND CONTROL UNDER CONVENTIONAL DUE
PROCESS OR EQUAL PROTECTION STANDARDS.  /1/  "(THE RIGHT TO TRAVEL
FREELY FROM STATE TO STATE FINDS CONSTITUTIONAL PROTECTION THAT IS
QUITE INDEPENDENT OF THE FOURTEENTH AMENDMENT."  UNITED STATES V.
GUEST, SUPRA, AT 760, N. 17.  /2/  AS WE MADE CLEAR IN GUEST, IT IS A
RIGHT BROADLY ASSERTABLE AGAINST PRIVATE INTERFERENCE AS WELL AS
GOVERNMENTAL ACTION.  /3/  LIKE THE RIGHT OF ASSOCIATION, NAACP V.
ALABAMA, 357 U.S. 449, IT IS A VIRTUALLY UNCONDITIONAL PERSONAL RIGHT,
/4/  GUARANTEED BY THE CONSTITUTION TO US ALL. 

IT FOLLOWS, AS THE COURT SAYS, THAT "THE PURPOSE OF DETERRING THE IN
MIGRATION OF INDIGENTS CANNOT SERVE AS JUSTIFICATION FOR THE
CLASSIFICATION CREATED BY THE ONE-YEAR WAITING PERIOD, SINCE THAT
PURPOSE IS CONSTITUTIONALLY IMPERMISSIBLE."  AND IF FURTHER FOLLOWS, AS
THE COURT SAYS, THAT ANY OTHER PURPOSES OFFERED IN SUPPORT OF A LAW
THAT SO CLEARLY IMPINGES UPON THE CONSTITUTIONAL RIGHT OF INTERSTATE
TRAVEL MUST BE SHOWN TO REFLECT A COMPELLING GOVERNMENTAL INTEREST. 
THIS IS NECESSARILY TRUE WHETHER THE IMPINGING LAW BE A CLASSIFICATION
STATUTE TO BE TESTED AGAINST THE EQUAL PROTECTION CLAUSE, OR A STATE OR
FEDERAL REGULATORY LAW, TO BE TESTED AGAINST THE DUE PROCESS CLAUSE OF
THE FOURTEENTH OR FIFTH AMENDMENT.  AS MR. JUSTICE HARLAN WROTE FOR THE
COURT MORE THAN A DECADE AGO, "(TO JUSTIFY THE DETERRENT EFFECT . . .
ON THE FREE EXERCISE . . . OF THEIR CONSTITUTIONALLY PROTECTED RIGHT .
. . A ' . . . SUBORDINATING INTEREST OF THE STATE MUST BE APPLICATION
OF MIRANDA IS AUTOMATIC.  THE RULE IS SIMPLE BUT IT IGNORES
COMPELLING.'"  NAACP V. ALABAMA, SUPRA, AT 463. 

THE COURT TODAY, THEREFORE, IS NOT "CONTRIVING NEW CONSTITUTIONAL
PRINCIPLES."  IT IS DECIDING THESE CASES UNDER THE AEGIS OF ESTABLISHED
CONSTITUTIONAL LAW.  /5/ 

/1/  BY CONTRAST, THE "RIGHT" OF INTERNATIONAL TRAVEL HAS BEEN
CONSIDERED TO BE NO MORE THAN AN ASPECT OF THE "LIBERTY" PROTECTED BY
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  KENT V. DULLES, 357
U.S. 116, 125; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 505-506. 
AS SUCH, THIS "RIGHT," THE COURT HAS HELD, CAN BE REGULATED WITHIN THE
BOUNDS OF DUE PROCESS.  ZEMEL V. RUSK, 381 U.S. 1. 

/2/  THE CONSTITUTIONAL RIGHT OF INTERSTATE TRAVEL WAS FULLY
RECOGNIZED LONG BEFORE ADOPTION OF THE FOURTEENTH AMENDMENT.  SEE THE
STATEMENT OF CHIEF JUSTICE TANEY IN THE PASSENGER CASES, 7 HOW.  283,
492: 

"FOR ALL THE GREAT PURPOSES FOR WHICH THE FEDERAL GOVERNMENT WAS
FORMED, WE ARE ONE PEOPLE, WITH ONE COMMON COUNTRY.  WE ARE ALL
CITIZENS OF THE UNITED STATES; AND, AS MEMBERS OF THE SAME COMMUNITY,
MUST HAVE THE RIGHT TO PASS AND REPASS THROUGH EVERY PART OF IT WITHOUT
INTERRUPTION, AS FREELY AS IN OUR OWN STATES." 

/3/  MR. JUSTICE HARLAN WAS ALONE IN DISSENTING FROM THIS SQUARE
HOLDING IN GUEST.  SUPRA, AT 762. 

/4/  THE EXTENT OF EMERGENCY GOVERNMENTAL POWER TEMPORARILY TO
PREVENT OR CONTROL INTERSTATE TRAVEL, E.G., TO A DISASTER AREA, NEED
NOT BE CONSIDERED IN THESE CASES. 

/5/  IT IS TO BE REMEMBERED THAT THE COURT TODAY AFFIRMS THE
JUDGMENTS OF THREE DIFFERENT FEDERAL DISTRICT COURTS, AND THAT AT LEAST
FOUR OTHER FEDERAL COURTS HAVE REACHED THE SAME RESULT.  SEE ANTE, AT
622, N. 1. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK JOINS,
DISSENTING. 

IN MY OPINION THE ISSUE BEFORE US CAN BE SIMPLY STATED:  MAY
CONGRESS, ACTING UNDER ONE OF ITS ENUMERATED POWERS, IMPOSE MINIMAL
NATIONWIDE RESIDENCE REQUIREMENTS OF AUTHORIZE THE STATES TO DO SO?
SINCE I BELIEVE THAT CONGRESS DOES HAVE THIS POWER AND HAS
CONSTITUTIONALLY EXERCISED IT IN THESE CASES, I MUST DISSENT. 

        I. 

THE COURT INSISTS THAT SEC. 402(B) OF THE SOCIAL SECURITY ACT "DOES
NOT APPROVE, MUCH LESS PRESCRIBE, A ONE-YEAR REQUIREMENT."  ANTE, AT
639.  FROM ITS READING OF THE LEGISLATIVE HISTORY IT CONCLUDES THAT
CONGRESS DID NOT INTEND TO AUTHORIZE THE STATES TO IMPOSE RESIDENCE
REQUIREMENTS.  AN EXAMINATION OF THE RELEVANT LEGISLATIVE MATERIALS
COMPELS, IN MY VIEW, THE OPPOSITE CONCLUSION, I.E., CONGRESS INTENDED
TO AUTHORIZE STATE RESIDENCE REQUIREMENTS OF UP TO ONE YEAR. 

THE GREAT DEPRESSION OF THE 1930'S EXPOSED THE INADEQUACIES OF STATE
AND LOCAL WELFARE PROGRAMS AND DRAMATIZED THE NEED FOR FEDERAL
PARTICIPATION IN WELFARE ASSISTANCE.  SEE J. BROWN, PUBLIC RELIEF 1929
1939 (1940).  CONGRESS DETERMINED THAT THE SOCIAL SECURITY ACT,
CONTAINING A SYSTEM OF UNEMPLOYMENT AND OLD-AGE INSURANCE AS WELL AS
THE CATEGORICAL ASSISTANCE PROGRAMS NOW AT ISSUE, WAS TO BE A MAJOR
STEP DESIGNED TO AMELIORATE THE PROBLEMS OF ECONOMIC INSECURITY.  THE
PRIMARY PURPOSE OF THE CATEGORICAL ASSISTANCE PROGRAMS WAS TO ENCOURAGE
THE STATES TO PROVIDE NEW AND GREATLY ENHANCED WELFARE PROGRAMS.  SEE,
E.G., S. REP. NO. 628, 74TH CONG., 1ST SESS., 5-6, 18-19 (1935); H.R.
REP. NO. 615, 74TH CONG., 1ST SESS., 4 (1935).  FEDERAL AID WOULD MEAN
AN IMMEDIATE INCREASE IN THE AMOUNT OF BENEFITS PAID UNDER STATE
PROGRAMS.  BUT FEDERAL AID WAS TO BE CONDITIONED UPON CERTAIN
REQUIREMENTS SO THAT THE STATES WOULD REMAIN THE BASIC ADMINISTRATIVE
UNITS OF THE WELFARE SYSTEM AND WOULD BE UNABLE TO SHIFT THE WELFARE
BURDEN TO LOCAL GOVERNMENTAL UNITS WITH INADEQUATE FINANCIAL
RESOURCES.  SEE ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS,
STATUTORY AND ADMINISTRATIVE CONTROLS ASSOCIATED WITH FEDERAL GRANTS
FOR PUBLIC ASSISTANCE 9-26 (1964).  SIGNIFICANTLY, THE CATEGORIES OF
ASSISTANCE PROGRAMS CREATED BY THE SOCIAL SECURITY ACT CORRESPONDED TO
THOSE ALREADY IN EXISTENCE IN A NUMBER OF STATES.  SEE J. BROWN, PUBLIC
RELIEF 1929-1939, AT 26-32.  FEDERAL ENTRY INTO THE WELFARE AREA CAN
THEREFORE BE BEST DESCRIBED AS A MAJOR EXPERIMENT IN "COOPERATIVE
FEDERALISM," KING V. SMITH, 392 U.S. 309, 317 (1968), COMBINING STATE
AND FEDERAL PARTICIPATION TO SOLVE THE PROBLEMS OF THE DEPRESSION. 

EACH OF THE CATEGORICAL ASSISTANCE PROGRAMS CONTAINED IN THE SOCIAL
SECURITY ACT ALLOWED PARTICIPATING STATES TO IMPOSE RESIDENCE
REQUIREMENTS AS A CONDITION OF ELIGIBILITY FOR BENEFITS.  CONGRESS ALSO
IMPOSED A ONE-YEAR REQUIREMENT FOR THE CATEGORICAL ASSISTANCE PROGRAMS
OPERATIVE IN THE DISTRICT OF COLUMBIA.  SEE H.R. REP. NO. 891, 74TH
CONG., 1ST SESS. (1935) (OLD-AGE PENSIONS); H.R. REP. NO. 201, 74TH
CONG., 1ST SESS. (1935) AID TO THE BLIND).  THE CONGRESSIONAL DECISION
TO ALLOW THE STATES TO IMPOSE RESIDENCE REQUIREMENTS AND TO ENACT SUCH
A REQUIREMENT FOR THE DISTRICT WAS THE SUBJECT OF CONSIDERABLE
DISCUSSION.  BOTH THOSE FAVORING LENGTHY RESIDENCE REQUIREMENTS /1/
AND THOSE OPPOSING ALL REQUIREMENTS /2/  PLEADED THEIR CASE DURING THE
CONGRESSIONAL HEARINGS ON THE SOCIAL SECURITY ACT.  FACED WITH THE
COMPETING CLAIMS OF STATES WHICH FEARED THAT ABOLITION OF RESIDENCE
REQUIREMENTS WOULD RESULT IN AN INFLUX OF PERSONS SEEKING HIGHER
WELFARE PAYMENTS AND OF ORGANIZATIONS WHICH STRESSED THE UNFAIRNESS OF
SUCH REQUIREMENTS TO TRANSIENT WORKERS FORCED BY THE ECONOMIC
DISLOCATION OF THE DEPRESSION TO SEEK WORK FAR FROM THEIR HOMES,
CONGRESS CHOSE A MIDDLE COURSE.  IT REQUIRED THOSE STATES SEEKING
FEDERAL GRANTS FOR CATEGORICAL ASSISTANCE TO REDUCE THEIR EXISTING
RESIDENCE REQUIREMENTS TO WHAT CONGRESS VIEWED AS AN ACCEPTABLE
MAXIMUM.  HOWEVER, CONGRESS ACCOMMODATED STATE FEARS BY ALLOWING THE
STATES TO RETAIN MINIMAL RESIDENCE REQUIREMENTS. 

CONGRESS QUICKLY SAW EVIDENCE THAT THE SYSTEM OF WELFARE ASSISTANCE
CONTAINED IN THE SOCIAL SECURITY ACT INCLUDING RESIDENCE REQUIREMENTS
WAS OPERATING TO ENCOURAGE STATES TO EXPAND AND IMPROVE THEIR
CATEGORICAL ASSISTANCE PROGRAMS.  FOR EXAMPLE, THE SENATE WAS TOLD IN
1939: 

     "THE RAPID EXPANSION OF THE PROGRAM FOR AID TO DEPENDENT

  CHILDREN IN THE COUNTRY AS A WHOLE SINCE 1935 STANDS IN MARKED

  CONTRAST TO THE RELATIVELY STABLE PICTURE OF MOTHERS' AID IN THE

  PRECEDING 4-YEAR PERIOD FROM 1932 THROUGH 1935.  THE EXTENSION OF

  THE PROGRAM DURING THE LAST 3 YEARS IS DUE TO FEDERAL

 CONTRIBUTIONS WHICH ENCOURAGED THE MATCHING OF STATE AND LOCAL

  FUNDS."  S. REP. NO. 734, 76TH CONG., 1ST SESS., 29 (1939). 

THE TREND OBSERVED IN 1939 CONTINUED AS THE STATES RESPONDED TO THE
FEDERAL STIMULUS FOR IMPROVEMENT IN THE SCOPE AND AMOUNT OF CATEGORICAL
ASSISTANCE PROGRAMS.  SEE WEDEMEYER & MOORE, THE AMERICAN WELFARE
SYSTEM, 54 CALIF.L.REV.  326, 347-356 (1966).  RESIDENCE REQUIREMENTS
HAVE REMAINED A PART OF THIS COMBINED STATE-FEDERAL WELFARE PROGRAM FOR
34 YEARS.  CONGRESS HAS ADHERED TO ITS ORIGINAL DECISION THAT RESIDENCE
REQUIREMENTS WERE NECESSARY IN THE FACE OF REPEATED ATTACKS AGAINST
THESE REQUIREMENTS.  /3/  THE DECISION TO RETAIN RESIDENCE
REQUIREMENTS, COMBINED WITH CONGRESS' CONTINUING DESIRE TO ENCOURAGE
WIDER STATE PARTICIPATION IN CATEGORICAL ASSISTANCE PROGRAMS, INDICATES
TO ME THAT CONGRESS HAS AUTHORIZED THE IMPOSITION BY THE STATES OF
RESIDENCE REQUIREMENTS. 

        II. 

CONGRESS HAS IMPOSED A RESIDENCE REQUIREMENT IN THE DISTRICT OF
COLUMBIA AND AUTHORIZED THE STATES TO IMPOSE SIMILAR REQUIREMENTS.  THE
ISSUE BEFORE US MUST THEREFORE BE FRAMED IN TERMS OF WHETHER CONGRESS
MAY CREATE MINIMAL RESIDENCE REQUIREMENTS, NOT WHETHER THE STATES,
ACTING ALONE, MAY DO SO.  SEE PRUDENTIAL INSURANCE CO. V. BENJAMIN, 328
U.S. 408 (1946); IN RE RAHRER, 104 U.S. 545 (1891).  APPELLEES INSIST
THAT A CONGRESSIONALLY MANDATED RESIDENCE REQUIREMENT WOULD VIOLATE
THEIR RIGHT TO TRAVEL.  THE IMPORT OF THEIR CONTENTION IS THAT
CONGRESS, EVEN UNDER ITS "PLENARY"  /4/  POWER TO CONTROL INTERSTATE
COMMERCE, IS CONSTITUTIONALLY PROHIBITED FROM IMPOSING RESIDENCE
REQUIREMENTS.  I REACH A CONTRARY CONCLUSION FOR I AM CONVINCED THAT
THE EXTENT OF THE BURDEN ON INTERSTATE TRAVEL WHEN COMPARED WITH THE
JUSTIFICATION FOR ITS IMPOSITION REQUIRES THE COURT TO UPHOLD THIS
EXERTION OF FEDERAL POWER. 

CONGRESS, PURSUANT TO ITS COMMERCE POWER, HAS ENACTED A VARIETY OF
RESTRICTIONS UPON INTERSTATE TRAVEL.  IT HAS TAXED AIR AND RAIL FARES
AND THE GASOLINE NEEDED TO POWER CARS AND TRUCKS WHICH MOVE
INTERSTATE.  26 U.S.C. 4261 (AIR FARES); 26 U.S.C. 3469 (1952 ED.),
REPEALED IN PART BY PUB. L. 87-508, SEC. 5(B), 76 STAT. 115 (RAIL
FARES); 26 U.S.C. 4081 (GASOLINE).  MANY OF THE FEDERAL SAFETY
REGULATIONS OF COMMON CARRIERS WHICH CROSS STATE LINES BURDEN THE RIGHT
TO TRAVEL.  45 U.S.C. 1-43 (RAILROAD SAFETY APPLIANCES); 49 U.S.C. 1421
(AIR SAFETY REGULATIONS).  AND CONGRESS HAS PROHIBITED BY CRIMINAL
STATUTE INTERSTATE TRAVEL FOR CERTAIN PURPOSES.  E.G., 18 U.S.C. 1952. 
ALTHOUGH THESE RESTRICTIONS OPERATE AS A LIMITATION UPON FREE
INTERSTATE MOVEMENT OF PERSONS, THEIR CONSTITUTIONALITY APPEARS WELL
SETTLED.  SEE TEXAS & PACIFIC R. CO. V. RIGSBY, 241 U.S. 33, 41 (1916);
SOUTHERN R. CO. V. UNITED STATES, 222 U.S. 20 (1911); UNITED STATES V.
ZIZZO, 338 F.2D 577 (C.A. 7TH CIR., 1964), CERT. DENIED, 381 U.S. 915
(1965).  AS THE COURT OBSERVED IN ZEMEL V. RUSK, 381 U.S. 1, 14 (1965),
"THE FACT THAT A LIBERTY CANNOT BE INHIBITED WITHOUT DUE PROCESS OF LAW
DOES NOT MEAN THAT IT CAN UNDER NO CIRCUMSTANCES BE INHIBITED."     THE
COURT'S RIGHT-TO-TRAVEL CASES LEND LITTLE SUPPORT TO THE VIEW THAT
CONGRESSIONAL ACTION IS INVALID MERELY BECAUSE IT BURDENS THE RIGHT TO
TRAVEL.  MOST OF OUR CASES FALL INTO TWO CATEGORIES:  THOSE IN WHICH
STATE-IMPOSED RESTRICTIONS WERE INVOLVED, SEE, E.G., EDWARDS V.
CALIFORNIA, 314 U.S. 160 (1941); CRANDALL V. NEVADA, 6 WALL.  35
(1868), AND THOSE CONCERNING CONGRESSIONAL DECISIONS TO REMOVE
IMPEDIMENTS TO INTERSTATE MOVEMENT, SEE, E.G., UNITED STATES V. GUEST,
383 U.S. 745 (1966).  SINCE THE FOCUS OF OUR INQUIRY MUST BE WHETHER
CONGRESS WOULD EXCEED PERMISSIBLE BOUNDS BY IMPOSING RESIDENCE
REQUIREMENTS, NEITHER GROUP OF CASES OFFERS CONTROLLING PRINCIPLES. 

IN ONLY THREE CASES HAVE WE BEEN CONFRONTED WITH AN ASSERTION THAT
CONGRESS HAS IMPERMISSIBLY BURDENED THE RIGHT TO TRAVEL.  KENT V.
DULLES, 357 U.S. 116 (1958), DID INVALIDATE A BURDEN ON THE RIGHT TO
TRAVEL; HOWEVER, THE RESTRICTION WAS VOIDED ON THE NONCONSTITUTIONAL
BASIS THAT CONGRESS DID NOT INTEND TO GIVE THE SECRETARY OF STATE POWER
TO CREATE THE RESTRICTION AT ISSUE.  ZEMEL V. RUSK, SUPRA, ON THE OTHER
HAND, SUSTAINED A FLAT PROHIBITION OF TRAVEL TO CERTAIN DESIGNATED
AREAS AND REJECTED AN ATTACK THAT CONGRESS COULD NOT CONSTITUTIONALLY
IMPOSE THIS RESTRICTION.  APTHEKER V. SECRETARY OF STATE, 378 U.S. 500
(1964), IS THE ONLY CASE IN WHICH THIS COURT INVALIDATED ON A
CONSTITUTIONAL BASIS A CONGRESSIONALLY IMPOSED RESTRICTION.  APTHEKER
ALSO INVOLVED A FLAT PROHIBITION BUT IN COMBINATION WITH A CLAIM THAT
THE CONGRESSIONAL RESTRICTION COMPELLED A POTENTIAL TRAVELER TO CHOOSE
BETWEEN HIS RIGHT TO TRAVEL AND HIS FIRST AMENDMENT RIGHT OF FREEDOM OF
ASSOCIATION; IT WAS THIS HOBSON'S CHOICE, WE LATER EXPLAINED, WHICH
FORMS THE RATIONALE OF APTHEKER.  SEE ZEMEL V. RUSK, SUPRA, AT 16. 
APTHEKER THUS CONTAINS TWO CHARACTERISTICS DISTINGUISHING IT FROM THE
APPEALS NOW BEFORE THE COURT:  A COMBINED INFRINGEMENT OF TWO
CONSTITUTIONALLY PROTECTED RIGHTS AND A FLAT PROHIBITION UPON TRAVEL. 
RESIDENCE REQUIREMENTS DO NOT CREATE A FLAT PROHIBITION, FOR POTENTIAL
WELFARE RECIPIENTS MAY MOVE FROM STATE TO STATE AND ESTABLISH RESIDENCE
WHEREVER THEY PLEASE.  NOR IS ANY CLAIM MADE BY APPELLEES THAT
RESIDENCE REQUIREMENTS COMPEL THEM TO CHOOSE BETWEEN THE RIGHT TO
TRAVEL AND ANOTHER CONSTITUTIONAL RIGHT. 

ZEMEL V. RUSK, THE MOST RECENT OF THE THREE CASES, PROVIDES A
FRAMEWORK FOR ANALYSIS.  THE CORE INQUIRY IS "THE EXTENT OF THE
GOVERNMENTAL RESTRICTION IMPOSED" AND THE "EXTENT OF THE NECESSITY FOR
THE RESTRICTION."  ID., AT 14.  AS ALREADY NOTED, TRAVEL ITSELF IS NOT
PROHIBITED.  ANY BURDEN INHERES SOLELY IN THE FACT THAT A POTENTIAL
WELFARE RECIPIENT MIGHT TAKE INTO CONSIDERATION THE LOSS OF WELFARE
BENEFITS FOR A LIMITED PERIOD OF TIME IF HE CHANGES HIS RESIDENCE.  NOT
ONLY IS THIS BURDEN OF UNCERTAIN DEGREE, /5/  BUT APPELLEES THEMSELVES
ASSERT THERE IS EVIDENCE THAT FEW WELFARE RECIPIENTS HAVE IN FACT BEEN
DETERRED BY RESIDENCE REQUIREMENTS.  SEE HARVITH, THE CONSTITUTIONALITY
OF RESIDENCE TESTS FOR GENERAL AND CATEGORICAL ASSISTANCE PROGRAMS, 54
CALIF.L.REV.  567, 615-618 (1966); NOTE, RESIDENCE REQUIREMENTS IN
STATE PUBLIC WELFARE STATUTES, 51 IOWA L.REV.  1080, 1083-1085 (1966). 

THE INSUBSTANTIALITY OF THE RESTRICTION IMPOSED BY RESIDENCE
REQUIREMENTS MUST THEN BE EVALUATED IN LIGHT OF THE POSSIBLE
CONGRESSIONAL REASONS FOR SUCH REQUIREMENTS.  SEE, E.G., MCGOWAN V.
MARYLAND, 366 U.S. 420, 425-427 (1961).  ONE FACT WHICH DOES EMERGE
WITH CLARITY FROM THE LEGISLATIVE HISTORY IS CONGRESS' BELIEF THAT A
PROGRAM OF COOPERATIVE FEDERALISM COMBINING FEDERAL AID WITH ENHANCED
STATE PARTICIPATION WOULD RESULT IN AN INCREASE IN THE SCOPE OF WELFARE
PROGRAMS AND LEVEL OF BENEFITS.  GIVEN THE APPREHENSIONS OF MANY STATES
THAT AN INCREASE IN BENEFITS WITHOUT MINIMAL RESIDENCE REQUIREMENTS
WOULD RESULT IN AN INABILITY TO PROVIDE AN ADEQUATE WELFARE SYSTEM,
CONGRESS DELIBERATELY ADOPTED THE INTERMEDIATE COURSE OF A COOPERATIVE
PROGRAM.  SUCH A PROGRAM, CONGRESS BELIEVED, WOULD ENCOURAGE THE STATES
TO ASSUME GREATER WELFARE RESPONSIBILITIES AND WOULD GIVE THE STATES
THE NECESSARY FINANCIAL SUPPORT FOR SUCH AN UNDERTAKING.  OUR CASES
REQUIRE ONLY THAT CONGRESS HAVE A RATIONAL BASIS FOR FINDING THAT A
CHOSEN REGULATORY SCHEME IS NECESSARY TO THE FURTHERANCE OF INTERSTATE
COMMERCE.  SEE, E.G., KATZENBACH V. MCCLUNG, 379 U.S. 294 (1964);
WICKARD V. FILBURN, 317 U.S. 111 (1942).  CERTAINLY, A CONGRESSIONAL
FINDING THAT RESIDENCE REQUIREMENTS ALLOWED EACH STATE TO CONCENTRATE
ITS RESOURCES UPON NEW AND INCREASED PROGRAMS OF REHABILITATION
ULTIMATELY RESULTING IN AN ENHANCED FLOW OF COMMERCE AS THE ECONOMIC
CONDITION OF WELFARE RECIPIENTS PROGRESSIVELY IMPROVED IS RATIONAL AND
WOULD JUSTIFY IMPOSITION OF RESIDENCE REQUIREMENTS UNDER THE COMMERCE
CLAUSE.  AND CONGRESS COULD HAVE ALSO DETERMINED THAT RESIDENCE
REQUIREMENTS FOSTERED PERSONAL MOBILITY.  AN INDIVIDUAL NO LONGER
DEPENDENT UPON WELFARE WOULD BE PRESENTED WITH AN UNFETTERED RANGE OF
CHOICES SO THAT A DECISION TO MIGRATE COULD BE MADE WITHOUT REGARD TO
CONSIDERATIONS OF POSSIBLE ECONOMIC DISLOCATION. 

APPELLEES SUGGEST, HOWEVER, THAT CONGRESS WAS NOT MOTIVATED BY
RATIONAL CONSIDERATIONS.  RESIDENCE REQUIREMENTS ARE IMPOSED, THEY
INSIST, FOR THE ILLEGITIMATE PURPOSE OF KEEPING POOR PEOPLE FROM
MIGRATING.  NOT ONLY DOES THE LEGISLATIVE HISTORY POINT TO AN OPPOSITE
CONCLUSION, BUT IT ALSO MUST BE NOTED THAT "(INTO THE MOTIVES WHICH
INDUCED MEMBERS OF CONGRESS TO (ACT) . . . THIS COURT MAY NOT
ENQUIRE."  ARIZONA V. CALIFORNIA, 283 U.S. 423, 455 (1931).  WE DO NOT
ATTRIBUTE AN IMPERMISSIBLE PURPOSE TO CONGRESS IF THE RESULT WOULD BE
TO STRIKE DOWN AN OTHERWISE VALID STATUTE.  UNITED STATES V. O'BRIEN,
391 U.S. 367, 383 (1968); MCCRAY V. UNITED STATES, 195 U.S. 27, 56
(1904).  SINCE THE CONGRESSIONAL DECISION IS RATIONAL AND THE
RESTRICTION ON TRAVEL INSUBSTANTIAL, I CONCLUDE THAT RESIDENCE
REQUIREMENTS CAN BE IMPOSED BY CONGRESS AS AN EXERCISE OF ITS POWER TO
CONTROL INTERESTATE COMMERCE CONSISTENT WITH THE CONSTITUTIONALLY
GUARANTEED RIGHT TO TRAVEL. 

WITHOUT AN ATTEMPT TO DETERMINE WHETHER ANY OF CONGRESS' ENUMERATED
POWERS WOULD SUSTAIN RESIDENCE REQUIREMENTS, THE COURT HOLDS THAT
CONGRESSIONALLY IMPOSED REQUIREMENTS VIOLATE THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT.  IT THUS SUGGESTS THAT, EVEN IF RESIDENCE
REQUIREMENTS WOULD BE A PERMISSIBLE EXERCISE OF THE COMMERCE POWER,
THEY ARE "SO UNJUSTIFIABLE AS TO BE VIOLATIVE OF DUE PROCESS."  ANTE,
AT 642.  WHILE THE REASONS FOR THIS CONCLUSION ARE NOT FULLY EXPLAINED,
THE COURT APPARENTLY BELIEVES THAT, IN THE WORDS OF BOLLING V. SHARPE,
347 U.S. 497, 500 (1954), RESIDENCE REQUIREMENTS CONSTITUTE "AN
ARBITRARY DEPRIVATION" OF LIBERTY. 

IF THIS IS THE IMPORT OF THE COURT'S OPINION, THEN IT SEEMS TO HAVE
DEPARTED FROM OUR PRECEDENTS.  WE HAVE LONG HELD THAT THERE IS NO
REQUIREMENT OF UNIFORMITY WHEN CONGRESS ACTS PURSUANT TO ITS COMMERCE
POWER.  SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 401
(1940); CURRIN V. WALLACE, 306 U.S. 1, 13-14 (1939).  /6/  I DO NOT
SUGGEST THAT CONGRESS IS COMPLETELY FREE WHEN LEGISLATING UNDER ONE OF
ITS ENUMERATED POWERS TO ENACT WHOLLY ARBITRARY CLASSIFICATIONS, FOR
BOLLING V. SHARPE, SUPRA, AND SCHNEIDER V. RUSK, 377 U.S. 163 (1964),
COUNSEL OTHERWISE.  NEITHER OF THESE CASES, HOWEVER, IS AUTHORITY FOR
INVALIDATION OF CONGRESSIONALLY IMPOSED RESIDENCE REQUIREMENTS.  THE
CLASSIFICATION IN BOLLING REQUIRED RACIAL SEGREGATION IN THE PUBLIC
SCHOOLS OF THE DISTRICT OF COLUMBIA AND WAS THUS BASED UPON CRITERIA
WHICH WE SUBJECT TO THE MOST RIGID SCRUTINY.  LOVING V. VIRGINIA, 388
U.S. 1, 11 (1967).  SCHNEIDER INVOLVED AN ATTEMPT TO DISTINGUISH
BETWEEN NATIVE-BORN AND NATURALIZED CITIZENS SOLELY FOR ADMINISTRATIVE
CONVENIENCE.  BY AUTHORIZING RESIDENCE REQUIREMENTS CONGRESS ACTED NOT
TO FACILITATE AN ADMINISTRATIVE FUNCTION BUT TO FURTHER ITS CONVICTION
THAT AN IMPEDIMENT TO THE COMMERCIAL LIFE OF THIS NATION WOULD BE
REMOVED BY A PROGRAM OF COOPERATIVE FEDERALISM COMBINING FEDERAL
CONTRIBUTIONS WITH ENHANCED STATE BENEFITS.  CONGRESS, NOT THE COURTS,
IS CHARGED WITH DETERMINING THE PROPER PRESCRIPTION FOR A NATIONAL
ILLNESS.  I CANNOT SAY THAT CONGRESS IS POWERLESS TO DECIDE THAT
RESIDENCE REQUIREMENTS WOULD PROMOTE THIS PERMISSIBLE GOAL AND
THEREFORE MUST CONCLUDE THAT SUCH REQUIREMENTS CANNOT BE TERMED
ARBITRARY. 

THE COURT, AFTER INTERPRETING THE LEGISLATIVE HISTORY IN SUCH A
MANNER THAT THE CONSTITUTIONALITY OF SEC. 402(B) IS NOT AT ISSUE,
GRATUITOUSLY ADDS THAT SEC. 402(B) IS UNCONSTITUTIONAL.  THIS METHOD OF
APPROACHING CONSTITUTIONAL QUESTIONS IS SHARPLY IN CONTRAST WITH THE
COURT'S APPROACH IN STREET V. NEW YORK, ANTE, AT 585-590.  WHILE IN
STREET THE COURT STRAINS TO AVOID THE CRUCIAL CONSTITUTIONAL QUESTION,
HERE IT SUMMARILY TREATS THE CONSTITUTIONALITY OF A MAJOR PROVISION OF
THE SOCIAL SECURITY ACT WHEN, GIVEN THE COURT'S INTERPRETATION OF THE
LEGISLATIVE MATERIALS, THAT PROVISION IS NOT AT ISSUE.  ASSUMING THAT
THE CONSTITUTIONALITY OF SEC. 402(B) IS PROPERLY TREATED BY THE COURT,
THE CRYPTIC FOOTNOTE IN KATZENBACH V. MORGAN, 384 U.S. 641, 651-652, N.
10 (1966), DOES NOT SUPPORT ITS CONCLUSION.  FOOTNOTE 10 INDICATES THAT
CONGRESS IS WITHOUT POWER TO UNDERCUT THE EQUAL-PROTECTION GUARANTEE OF
RACIAL EQUALITY IN THE GUISE OF IMPLEMENTING THE FOURTEENTH AMENDMENT. 
I DO NOT MEAN TO SUGGEST OTHERWISE.  HOWEVER, I DO NOT UNDERSTAND THIS
FOOTNOTE TO OPERATE AS A LIMITATION UPON CONGRESS' POWER TO FURTHER THE
FLOW OF INTERSTATE COMMERCE BY REASONABLE RESIDENCE REQUIREMENTS. 
ALTHOUGH THE COURT DISMISSES SEC. 402(B) WITH THE REMARK THAT CONGRESS
CANNOT AUTHORIZE THE STATES TO VIOLATE EQUAL PROTECTION, I BELIEVE THAT
THE DISPOSITIVE ISSUE IS WHETHER UNDER ITS COMMERCE POWER CONGRESS CAN
IMPOSE RESIDENCE REQUIREMENTS. 

NOR CAN I UNDERSTAND THE COURT'S IMPLICATION, ANTE, AT 638, N. 21,
THAT OTHER STATE RESIDENCE REQUIREMENTS SUCH AS THOSE EMPLOYED IN
DETERMINING ELIGIBILITY TO VOTE DO NOT PRESENT CONSTITUTIONAL
QUESTIONS.  DESPITE THE FACT THAT IN DRUEDING V. DEVLIN, 380 U.S. 125
(1965), WE AFFIRMED AN APPEAL FROM A THREE-JUDGE DISTRICT COURT AFTER
THE DISTRICT COURT HAD REJECTED A CONSTITUTIONAL CHALLENGE TO
MARYLAND'S ONE-YEAR RESIDENCE REQUIREMENT FOR PRESIDENTIAL ELECTIONS,
THE RATIONALE EMPLOYED BY THE COURT IN THESE APPEALS WOULD SEEM TO
REQUIRE THE OPPOSITE CONCLUSION.  IF A STATE WOULD VIOLATE EQUAL
PROTECTION BY DENYING WELFARE BENEFITS TO THOSE WHO HAVE RECENTLY MOVED
INTERSTATE, THEN IT WOULD APPEAR TO FOLLOW THAT EQUAL PROTECTION WOULD
ALSO BE DENIED BY DEPRIVING THOSE WHO HAVE RECENTLY MOVED INTERSTATE OF
THE FUNDAMENTAL RIGHT TO VOTE.  THERE IS NOTHING IN THE OPINION OF THE
COURT TO EXPLAIN THIS DICHOTOMY.  IN ANY EVENT, SINCE THE
CONSTITUTIONALITY OF A STATE RESIDENCE REQUIREMENT AS APPLIED TO A
PRESIDENTIAL ELECTION IS RAISED IN A CASE NOW PENDING, HALL V. BEALS,
NO. 950, 1968 TERM, I WOULD AWAIT THAT CASE FOR A RESOLUTION OF THE
VALIDITY OF STATE VOTING RESIDENCE REQUIREMENTS. 

    III. 

THE ERA IS LONG PAST WHEN THIS COURT UNDER THE RUBRIC OF DUE PROCESS
HAS REVIEWED THE WISDOM OF A CONGRESSIONAL DECISION THAT INTERSTATE
COMMERCE WILL BE FOSTERED BY THE ENACTMENT OF CERTAIN REGULATIONS. 
COMPARE ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525 (1923), WITH UNITED
STATES V. DARBY, 312 U.S. 100 (1941).  SPEAKING FOR THE COURT IN
HELVERING V. DAVIS, 301 U.S. 619, 644 (1937), MR. JUSTICE CARDOZO SAID
OF ANOTHER SECTION OF THE SOCIAL SECURITY ACT: 

     "WHETHER WISDOM OR UNWISDOM RESIDES IN THE SCHEME OF BENEFITS

  SET FORTH . . . IS NOT FOR US TO SAY.  THE ANSWER TO SUCH

  INQUIRIES MUST COME FROM CONGRESS, NOT THE COURTS.  OUR CONCERN

HERE, AS OFTEN, IS WITH POWER, NOT WISDOM." 

I AM CONVINCED THAT CONGRESS DOES HAVE POWER TO ENACT RESIDENCE
REQUIREMENTS OF REASONABLE DURATION OR TO AUTHORIZE THE STATES TO DO SO
AND THAT IT HAS EXERCISED THIS POWER. 

THE COURT'S DECISION REVEALS ONLY THE TOP OF THE ICE-BERG.  LURKING
BENEATH ARE THE MULTITUDE OF SITUATIONS IN WHICH STATES HAVE IMPOSED
RESIDENCE REQUIREMENTS INCLUDING ELIGIBILITY TO VOTE, TO ENGAGE IN
CERTAIN PROFESSIONS OR OCCUPATIONS OR TO ATTEND A STATE-SUPPORTED
UNIVERSITY.  ALTHOUGH THE COURT TAKES PAINS TO AVOID ACKNOWLEDGING THE
RAMIFICATIONS OF ITS DECISION, ITS IMPLICATIONS CANNOT BE IGNORED.  I
DISSENT. 

/1/  SEE, E.G., HEARINGS ON H.R. 4120 BEFORE THE HOUSE COMMITTEE ON
WAYS AND MEANS, 74TH CONG., 1ST SESS., 831-832, 861-871 (1935). 

/2/  SEE, E.G., HEARINGS ON S. 1130 BEFORE THE SENATE COMMITTEE ON
FINANCE, 74TH CONG., 1ST SESS., 522-540, 643, 656 (1935). 

/3/  SEE E.G., HEARINGS ON H.R. 10032 BEFORE THE HOUSE COMMITTEE ON
WAYS AND MEANS, 87TH CONG., 2D SESS., 355, 385-405, 437 (1962);
HEARINGS ON H.R. 6000 BEFORE THE SENATE COMMITTEE ON FINANCE, 81ST
CONG., 2D SESS., 142-143 (1950). 

/4/  SEE E.G., HEART OF ATLANTA MOTEL, INC. V. UNITED STATES, 379
U.S. 241, 256-260 (1964). 

/5/  THE BURDEN IS UNCERTAIN BECAUSE INDIGENTS WHO ARE DISQUALIFIED
FROM CATEGORICAL ASSISTANCE BY RESIDENCE REQUIREMENTS ARE NOT LEFT
WHOLLY WITHOUT ASSISTANCE.  ALL OF THE APPELLEES IN THESE CASES FOUND
ALTERNATIVE SOURCES OF ASSISTANCE AFTER THEIR DISQUALIFICATION. 

/6/  SOME OF THE CASES GO SO FAR AS TO INTIMATE THAT AT LEAST IN THE
AREA OF TAXATION CONGRESS IS NOT INHIBITED BY ANY PROBLEMS OF
CLASSIFICATION.  SEE HELVERING V. LERNER STORES CORP., 314 U.S. 463,
468 (1941); STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 584 (1937);
LABELLE IRON WORKS V. UNITED STATES, 256 U.S. 377, 392 (1921). 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT TODAY HOLDS UNCONSTITUTIONAL CONNECTICUT, PENNSYLVANIA,
AND DISTRICT OF COLUMBIA STATUTES WHICH RESTRICT CERTAIN KINDS OF
WELFARE BENEFITS TO PERSONS WHO HAVE LIVED WITHIN THE JURISDICTION FOR
AT LEAST ONE YEAR IMMEDIATELY PRECEDING THEIR APPLICATIONS.  THE COURT
HAS ACCOMPLISHED THIS RESULT BY AN EXPANSION OF THE COMPARATIVELY NEW
CONSTITUTIONAL DOCTRINE THAT SOME STATE STATUTES WILL BE DEEMED TO DENY
EQUAL PROTECTION OF THE LAWS UNLESS JUSTIFIED BY A "COMPELLING"
GOVERNMENTAL INTEREST, AND BY HOLDING THAT THE FIFTH AMENDMENT'S DUE
PROCESS CLAUSE IMPOSES A SIMILAR LIMITATION ON FEDERAL ENACTMENTS. 
HAVING DECIDED THAT THE "COMPELLING INTEREST" PRINCIPLE IS APPLICABLE,
THE COURT THEN FINDS THAT THE GOVERNMENTAL INTERESTS HERE ASSERTED ARE
EITHER WHOLLY IMPERMISSIBLE OR ARE NOT "COMPELLING."  FOR REASONS WHICH
FOLLOW, I DISAGREE BOTH WITH THE COURT'S RESULT AND WITH ITS
REASONING.              I.     THESE THREE CASES PRESENT TWO SEPARATE
BUT RELATED QUESTIONS FOR DECISION.  THE FIRST, ARISING FROM THE
DISTRICT OF COLUMBIA APPEAL, IS WHETHER CONGRESS MAY CONDITION THE
RIGHT TO RECEIVE AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) AND AID
TO THE PERMANENTLY AND TOTALLY DISABLED IN THE DISTRICT OF COLUMBIA
UPON THE RECIPIENT'S HAVING RESIDED IN THE DISTRICT FOR THE PRECEDING
YEAR.  /1/  THE SECOND, PRESENTED IN THE PENNSYLVANIA AND CONNECTICUT
APPEALS, IS WHETHER A STATE MAY, WITH THE APPROVAL OF CONGRESS, IMPOSE
THE SAME CONDITIONS WITH RESPECT TO ELIGIBILITY FOR AFDC ASSISTANCE. 
/2/  IN EACH INSTANCE, THE WELFARE RESIDENCE REQUIREMENTS ARE ALLEGED
TO BE UNCONSTITUTIONAL ON TWO GROUNDS:  FIRST, BECAUSE THEY IMPOSE AN
UNDUE BURDEN UPON THE CONSTITUTIONAL RIGHT OF WELFARE APPLICANTS TO
TRAVEL INTERSTATE; SECOND, BECAUSE THEY DENY TO PERSONS WHO HAVE
RECENTLY MOVED INTERSTATE AND WOULD OTHERWISE BE ELIGIBLE FOR WELFARE
ASSISTANCE THE EQUAL PROTECTION OF THE LAWS ASSURED BY THE FOURTEENTH
AMENDMENT (IN THE STATE CASES) OR THE ANALOGOUS PROTECTION AFFORDED BY
THE FIFTH AMENDMENT (IN THE DISTRICT OF COLUMBIA CASE).  SINCE THE
COURT BASICALLY RELIES UPON THE EQUAL PROTECTION GROUND, I SHALL
DISCUSS IT FIRST. 

        II. 

IN UPHOLDING THE EQUAL PROTECTION ARGUMENT, /3/  THE COURT HAS
APPLIED AN EQUAL PROTECTION DOCTRINE OF RELATIVELY RECENT VINTAGE:  THE
RULE THAT STATUTORY CLASSIFICATIONS WHICH EITHER ARE BASED UPON CERTAIN
"SUSPECT" CRITERIA OR AFFECT "FUNDAMENTAL RIGHTS" WILL BE HELD TO DENY
EQUAL PROTECTION UNLESS JUSTIFIED BY A "COMPELLING" GOVERNMENTAL
INTEREST.  SEE ANTE, AT 627, 634, 638. 

THE "COMPELLING INTEREST" DOCTRINE, WHICH TODAY IS ARTICULATED MORE
EXPLICITLY THAN EVER BEFORE, CONSTITUTES AN INCREASINGLY SIGNIFICANT
EXCEPTION TO THE LONG-ESTABLISHED RULE THAT A STATUTE DOES NOT DENY
EQUAL PROTECTION IF IT IS RATIONALLY RELATED TO A LEGITIMATE
GOVERNMENTAL OBJECTIVE.  /4/  THE "COMPELLING INTEREST" DOCTRINE HAS
TWO BRANCHES.  THE BRANCH WHICH REQUIRES THAT CLASSIFICATIONS BASED
UPON "SUSPECT" CRITERIA BE SUPPORTED BY A COMPELLING INTEREST
APPARENTLY HAD ITS GENESIS IN CASES INVOLVING RACIAL CLASSIFICATIONS,
WHICH HAVE, AT LEAST SINCE KOREMATSU V. UNITED STATES, 323 U.S. 214,
216 (1944), BEEN REGARDED AS INHERENTLY "SUSPECT."  /5/  THE CRITERION
OF "WEALTH" APPARENTLY WAS ADDED TO THE LIST OF "SUSPECTS" AS AN
ALTERNATIVE JUSTIFICATION FOR THE RATIONALE IN HARPER V. VIRGINIA BD.
OF ELECTIONS, 383 U.S. 663, 668 (1966), IN WHICH VIRGINIA'S POLL TAX
WAS STRUCK DOWN.  THE CRITERION OF POLITICAL ALLEGIANCE MAY HAVE BEEN
ADDED IN WILLIAMS V. RHODES, 393 U.S. 23 (1968).  /6/  TODAY THE LIST
APPARENTLY HAS BEEN FURTHER ENLARGED TO INCLUDE CLASSIFICATIONS BASED
UPON RECENT INTERSTATE MOVEMENT, AND PERHAPS THOSE BASED UPON THE
EXERCISE OF ANY CONSTITUTIONAL RIGHT, FOR THE COURT STATES, ANTE, AT
634: 

"THE WAITING-PERIOD PROVISION DENIES WELFARE BENEFITS TO OTHERWISE
ELIGIBLE APPLICANTS SOLELY BECAUSE THEY HAVE RECENTLY MOVED INTO THE
JURISDICTION.  BUT IN MOVING . . . APPELLEES WERE EXERCISING A
CONSTITUTIONAL RIGHT, AND ANY CLASSIFICATION WHICH SERVES TO PENALIZE
THE EXERCISE OF THAT RIGHT, UNLESS SHOWN TO BE NECESSARY TO PROMOTE A
COMPELLING GOVERNMENTAL INTEREST, IS UNCONSTITUTIONAL."  /7/ 

I THINK THAT THIS BRANCH OF THE "COMPELLING INTEREST" DOCTRINE IS
SOUND WHEN APPLIED TO RACIAL CLASSIFICATIONS, FOR HISTORICALLY THE
EQUAL PROTECTION CLAUSE WAS LARGELY A PRODUCT OF THE DESIRE TO
ERADICATE LEGAL DISTINCTIONS FOUNDED UPON RACE.  HOWEVER, I BELIEVE
THAT THE MORE RECENT EXTENSIONS HAVE BEEN UNWISE.  FOR THE REASONS
STATED IN MY DISSENTING OPINION IN HARPER V. VIRGINIA BD. OF ELECTIONS,
SUPRA, AT 680, 683-686, I DO NOT CONSIDER WEALTH A "SUSPECT" STATUTORY
CRITERION.  AND WHEN, AS IN WILLIAMS V. RHODES, SUPRA, AND THE PRESENT
CASE, A CLASSIFICATION IS BASED UPON THE EXERCISE OF RIGHTS GUARANTEED
AGAINST STATE INFRINGEMENT BY THE FEDERAL CONSTITUTION, THEN THERE IS
NO NEED FOR ANY RESORT TO THE EQUAL PROTECTION CLAUSE; IN SUCH
INSTANCES, THIS COURT MAY PROPERLY AND STRAIGHT FORWARDLY INVALIDATE
ANY UNDUE BURDEN UPON THOSE RIGHTS UNDER THE FOURTEENTH AMENDMENT'S DUE
PROCESS CLAUSE.  SEE, E.G., MY SEPARATE OPINION IN WILLIAMS V. RHODES,
SUPRA, AT 41. 

THE SECOND BRANCH OF THE "COMPELLING INTEREST" PRINCIPLE IS EVEN
MORE TROUBLESOME.  FOR IT HAS BEEN HELD THAT A STATUTORY CLASSIFICATION
IS SUBJECT TO THE "COMPELLING INTEREST" TEST IF THE RESULT OF THE
CLASSIFICATION MAY BE TO AFFECT A "FUNDAMENTAL RIGHT," REGARDLESS OF
THE BASIS OF THE CLASSIFICATION.  THIS RULE WAS FORESHADOWED IN SKINNER
V. OKLAHOMA, 316 U.S. 535, 541 (1942), IN WHICH AN OKLAHOMA STATUTE
PROVIDING FOR COMPULSORY STERILIZATION OF "HABITUAL CRIMINALS" WAS HELD
SUBJECT TO "STRICT SCRUTINY" MAINLY BECAUSE IT AFFECTED "ONE OF THE
BASIC CIVIL RIGHTS."  AFTER A LONG HIATUS, THE PRINCIPLE RE-EMERGED IN
REYNOLDS V. SIMS, 377 U.S. 533, 561-562 (1964), IN WHICH STATE
APPORTIONMENT STATUTES WERE SUBJECTED TO AN UNUSUALLY STRINGENT TEST
BECAUSE "ANY ALLEGED INFRINGEMENT OF THE RIGHT OF CITIZENS TO VOTE MUST
BE CAREFULLY AND METICULOUSLY SCRUTINIZED."  ID., AT 562.  THE RULE
APPEARED AGAIN IN CARRINGTON V. RASH, 380 U.S. 89, 96 (1965), IN WHICH,
AS I NOW SEE THAT CASE, /8/  THE COURT APPLIED AN ABNORMALLY SEVERE
EQUAL PROTECTION STANDARD TO A TEXAS STATUTE DENYING CERTAIN SERVICEMEN
THE RIGHT TO VOTE, WITHOUT INDICATING THAT THE STATUTORY DISTINCTION
BETWEEN SERVICEMEN AND CIVILIANS WAS GENERALLY "SUSPECT."  THIS BRANCH
OF THE DOCTRINE WAS ALSO AN ALTERNATE GROUND IN HARPER V. VIRGINIA BD.
OF ELECTIONS, SUPRA, SEE 383 U.S.,AT 670, AND APPARENTLY WAS A BASIS OF
THE HOLDING IN WILLIAMS V. RHODES, SUPRA.  /9/  IT HAS REAPPEARED TODAY
IN THE COURT'S CRYPTIC SUGGESTION, ANTE, AT 627, THAT THE "COMPELLING
INTEREST" TEST IS APPLICABLE MERELY BECAUSE THE RESULT OF THE
CLASSIFICATION MAY BE TO DENY THE APPELLEES "FOOD, SHELTER, AND OTHER
NECESSITIES OF LIFE," AS WELL AS IN THE COURT'S STATEMENT, ANTE, AT
638, THAT "(SINCE THE CLASSIFICATION HERE TOUCHES ON THE FUNDAMENTAL
RIGHT OF INTERSTATE MOVEMENT, ITS CONSTITUTIONALITY MUST BE JUDGED BY
THE STRICTER STANDARD OF WHETHER IT PROMOTES A COMPELLING STATE
INTEREST."  /10/ 

I THINK THIS BRANCH OF THE "COMPELLING INTEREST" DOCTRINE
PARTICULARLY UNFORTUNATE AND UNNECESSARY.  IT IS UNFORTUNATE BECAUSE IT
CREATES AN EXCEPTION WHICH THREATENS TO SWALLOW THE STANDARD EQUAL
PROTECTION RULE.  VIRTUALLY EVERY STATE STATUTE AFFECTS IMPORTANT
RIGHTS.  THIS COURT HAS REPEATEDLY HELD, FOR EXAMPLE, THAT THE
TRADITIONAL EQUAL PROTECTION STANDARD IS APPLICABLE TO STATUTORY
CLASSIFICATIONS AFFECTING SUCH FUNDAMENTAL MATTERS AS THE RIGHT TO
PURSUE A PARTICULAR OCCUPATION, /11/  THE RIGHT TO RECEIVE GREATER OR
SMALLER WAGES /12/  OR TO WORK MORE OR LESS HOURS, /13/  AND THE RIGHT
TO INHERIT PROPERTY.  /14/  RIGHTS SUCH AS THESE ARE IN PRINCIPLE
INDISTINGUISHABLE FROM THOSE INVOLVED HERE, AND TO EXTEND THE
"COMPELLING INTEREST" RULE TO ALL CASES IN WHICH SUCH RIGHTS ARE
AFFECTED WOULD GO FAR TOWARD MAKING THIS COURT A "SUPER-LEGISLATURE." 
THIS BRANCH OF THE DOCTRINE IS ALSO UNNECESSARY.  WHEN THE RIGHT
AFFECTED IS ONE ASSURED BY THE FEDERAL CONSTITUTION, ANY INFRINGEMENT
CAN BE DEALT WITH UNDER THE DUE PROCESS CLAUSE.  BUT WHEN A STATUTE
AFFECTS ONLY MATTERS NOT MENTIONED IN THE FEDERAL CONSTITUTION AND SI
NOT ARBITRARY OR IRRATIONAL, I MUST REITERATE THAT I KNOW OF NOTHING
WHICH ENTITLES THIS COURT TO PICK OUT PARTICULAR HUMAN ACTIVITIES,
CHARACTERIZE THEM AS "FUNDAMENTAL," AND GIVE THEM ADDED PROTECTION
UNDER AN UNUSUALLY STRINGENT EQUAL PROTECTION TEST. 

I SHALL CONSIDER IN THE NEXT SECTION WHETHER WELFARE RESIDENCE
REQUIREMENTS DENY DUE PROCESS BY UNDULY BURDENING THE RIGHT OF
INTERESTATE TRAVEL.  IF THE ISSUE IS REGARDED PURELY AS ONE OF EQUAL
PROTECTION, THEN, FOR THE REASONS JUST SET FORTH, THIS NONRACIAL
CLASSIFICATION SHOULD BE JUDGED BY ORDINARY EQUAL PROTECTION
STANDARDS.  THE APPLICABLE CRITERIA ARE FAMILIAR AND WELL ESTABLISHED. 
A LEGISLATIVE MEASURE WILL BE FOUND TO DENY EQUAL PROTECTION ONLY IF
"IT IS WITHOUT ANY REASONABLE BASIS AND THEREFORE IS PURELY
ARBITRARY."  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78
(1911).  IT IS NOT ENOUGH THAT THE MEASURE RESULTS INCIDENTALLY "IN
SOME INEQUALITY,"  OR THAT IT IS NOT DRAWN "WITH MATHEMATICAL NICETY,"
IBID.; THE STATUTORY CLASSIFICATION MUST INSTEAD CAUSE "DIFFERENT
TREATMENTS . . . SO DISPARATE, RELATIVE TO THE DIFFERENCE IN
CLASSIFICATION, AS TO BE WHOLLY ARBITRARY."  WALTERS V. CITY OF ST.
LOUIS, 347 U.S. 231, 237 (1954).  SIMILARLY, THIS COURT HAS STATED THAT
WHERE, AS HERE, THE ISSUE CONCERNS THE AUTHORITY OF CONGRESS TO
WITHHOLD "A NONCONTRACTUAL BENEFIT UNDER A SOCIAL WELFARE PROGRAM . . .
, THE DUE PROCESS CLAUSE (OF THE FIFTH AMENDMENT) CAN BE THOUGHT TO
INTERPOSE A BAR ONLY IF THE STATUTE MANIFESTS A PATENTLY ARBITRARY
CLASSIFICATION, UTTERLY LACKING IN RATIONAL JUSTIFICATION."  FLEMMING
V. NESTOR, 363 U.S. 603, 611 (1960). 

FOR REASONS HEREAFTER SET FORTH, SEE INFRA, AT 672-677, A
LEGISLATURE MIGHT RATIONALLY FIND THAT THE IMPOSITION OF A WELFARE
RESIDENCE REQUIREMENT WOULD AID IN THE ACCOMPLISHMENT OF AT LEAST FOUR
VALID GOVERNMENTAL OBJECTIVES.  IT MIGHT ALSO FIND THAT RESIDENCE
REQUIREMENTS HAVE ADVANTAGES NOT SHARED BY OTHER METHODS OF ACHIEVING
THE SAME GOALS.  IN LIGHT OF THIS UNDENIABLE RELATION OF RESIDENCE
REQUIREMENTS TO VALID LEGISLATIVE AIMS, IT CANNOT BE SAID THAT THE
REQUIREMENTS ARE "ARBITRARY" OR "LACKING IN RATIONAL JUSTIFICATION." 
HENCE, I CAN FIND NO OBJECTION TO THESE RESIDENCE REQUIREMENTS UNDER
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OR UNDER THE
ANALOGOUS STANDARD EMBODIED IN THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

   III. 

THE NEXT ISSUE, WHICH I THINK REQUIRES FULLER ANALYSIS THAN THAT
DEEMED NECESSARY BY THE COURT UNDER ITS EQUAL PROTECTION RATIONALE, IS
DEEMED NECESSARY BY THE COURT UNDER ITS EQUAL PROTECTION RATIONALE, IS
WHETHER A ONE-YEAR WELFARE RESIDENCE REQUIREMENT AMOUNTS TO AN UNDUE
BURDEN UPON THE RIGHT OF INTERSTATE TRAVEL.  FOUR CONSIDERATIONS ARE
RELEVANT:  FIRST, WHAT IS THE CONSTITUTIONAL SOURCE AND NATURE OF THE
RIGHT TO TRAVEL WHICH IS RELIED UPON?  SECOND, WHAT IS THE EXTENT OF
THE INTERFERENCE WITH THAT RIGHT?  THIRD, WHAT GOVERNMENTAL INTERESTS
ARE SERVED BY WELFARE RESIDENCE REQUIREMENTS?  FOURTH, HOW SHOULD THE
BALANCE OF THE COMPETING CONSIDERATIONS BE STRUCK? 

THE INITIAL PROBLEM IS TO IDENTIFY THE SOURCE OF THE RIGHT TO TRAVEL
ASSERTED BY THE APPELLEES.  CONGRESS ENACTED THE WELFARE RESIDENCE
REQUIREMENT IN THE DISTRICT OF COLUMBIA, SO THE RIGHT TO TRAVEL WHICH
IS INVOKED IN THAT CASE MUST BE ENFORCEABLE AGAINST CONGRESSIONAL
ACTION.  THE RESIDENCE REQUIREMENTS CHALLENGED IN THE PENNSYLVANIA AND
CONNECTICUT APPEALS WERE AUTHORIZED BY CONGRESS IN 42 U.S.C. 602(B), SO
THE RIGHT TO TRAVEL RELIED UPON IN THOSE CASES MUST BE ENFORCEABLE
AGAINST THE STATES EVEN THOUGH THEY HAVE ACTED WITH CONGRESSIONAL
APPROVAL. 

IN MY VIEW, IT IS PLAYING DUCKS AND DRAKES WITH THE STATUTE TO
ARGUE, AS THE COURT DOES, ANTE, AT 639-641, THAT CONGRESS DID NOT MEAN
TO APPROVE THESE STATE RESIDENCE REQUIREMENTS.  IN 42 U.S.C. 602(B),
QUOTED MORE FULLY, ANTE, AT 638-639, CONGRESS DIRECTED THAT: 

"(THE SECRETARY SHALL APPROVE ANY (STATE ASSISTANCE) PLAN WHICH
FULFILLS THE CONDITIONS SPECIFIED IN SUBSECTION (A) OF THIS SECTION,
EXCEPT THAT HE SHALL NOT APPROVE ANY PLAN WHICH IMPOSES AS A CONDITION
OF ELIGIBILITY FOR (AFDC AID) A RESIDENCE REQUIREMENT (EQUAL TO OR
GREATER THAN ONE YEAR)."  I THINK THAT BY ANY FAIR READING THIS SECTION
MUST BE REGARDED AS CONFERRING CONGRESSIONAL APPROVAL UPON ANY PLAN
CONTAINING A RESIDENCE REQUIREMENT OF UP TO ONE YEAR. 

IF ANY REINFORCEMENT IS NEEDED FOR TAKING THIS STATUTORY LANGUAGE AT
FACE VALUE, THE OVERALL SCHEME OF THE AFDC PROGRAM AND THE CONTEXT IN
WHICH IT WAS ENACTED SUGGEST STRONG REASONS WHY CONGRESS WOULD HAVE
WISHED TO APPROVE LIMITED STATE RESIDENCE REQUIREMENTS.  CONGRESS
DETERMINED TO ENLIST STATE ASSISTANCE IN FINANCING THE AFDC PROGRAM,
AND TO ADMINISTER THE PROGRAM PRIMARILY THROUGH THE STATES.  A PREVIOUS
CONGRESS HAD ALREADY ENACTED A ONE-YEAR RESIDENCE REQUIREMENT WITH
RESPECT TO AID FOR DEPENDENT CHILDREN IN THE DISTRICT OF COLUMBIA. 
/15/  IN THESE CIRCUMSTANCES, I THINK IT ONLY SENSIBLE TO CONCLUDE THAT
IN ALLOWING THE STATES TO IMPOSE LIMITED RESIDENCE CONDITIONS DESPITE
THEIR POSSIBLE IMPACT ON PERSONS WHO WISHED TO MOVE INTERSTATE, /16/
CONGRESS WAS MOTIVATED BY A DESIRE TO ENCOURAGE STATE PARTICIPATION IN
THE AFDC PROGRAM, /17 AS WELL AS BY A FEELING THAT THE STATES SHOULD AT
LEAST BE PERMITTED TO IMPOSE RESIDENCE REQUIREMENTS AS STRICT AS THAT
ALREADY AUTHORIZED FOR THE DISTRICT OF COLUMBIA.  CONGRESS THEREFORE
HAD A GENUINE FEDERAL PURPOSE IN ALLOWING THE STATES TO USE RESIDENCE
TESTS.  AND I FULLY AGREE WITH THE CHIEF JUSTICE THAT THIS PURPOSE
WOULD RENDER SEC. 602(B) A PERMISSIBLE EXERCISE OF CONGRESS' POWER
UNDER THE COMMERCE CLAUSE, UNLESS CONGRESS WERE PROHIBITED FROM ACTING
BY ANOTHER PROVISION OF THE CONSTITUTION.     NOR DO I FIND IT CREDIBLE
THAT CONGRESS INTENDED TO REFRAIN FROM EXPRESSING APPROVAL OF STATE
RESIDENCE REQUIREMENTS BECAUSE OF DOUBTS ABOUT THEIR CONSTITUTIONALITY
OR THEIR COMPATIBILITY WITH THE ACT'S BENEFICENT PURPOSES.  WITH
RESPECT TO CONSTITUTIONALITY, A SIMILAR RESIDENCE REQUIREMENT WAS
ALREADY IN EFFECT FOR THE DISTRICT OF COLUMBIA, AND THE BURDENS UPON
TRAVEL WHICH MIGHT BE CAUSED BY SUCH REQUIREMENTS MUST, EVEN IN 1935,
HAVE BEEN REGARDED AS WITHIN THE COMPETENCE OF CONGRESS UNDER ITS
COMMERCE POWER.  IF CONGRESS HAD THOUGHT RESIDENCE REQUIREMENTS
ENTIRELY INCOMPATIBLE WITH THE AIMS OF THE ACT, IT COULD SIMPLY HAVE
PROVIDED THAT STATE ASSISTANCE PLANS CONTAINING SUCH REQUIREMENTS
SHOULD NOT BE APPROVED AT ALL, RATHER THAN HAVING LIMITED APPROVAL TO
PLANS CONTAINING RESIDENCE REQUIREMENTS OF LESS THAN ONE YEAR. 
MOREOVER, WHEN CONGRESS IN 1944 REVISED THE AFDC PROGRAM IN THE
DISTRICT OF COLUMBIA TO CONFORM WITH THE STANDARDS OF THE ACT, IT CHOSE
TO CONDITION ELIGIBILITY UPON ONE YEAR'S RESIDENCE, /18/  THUS STRONGLY
INDICATING THAT IT DOUBTED NEITHER THE CONSTITUTIONALITY OF SUCH A
PROVISION NOR ITS CONSISTENCY WITH THE ACT'S PURPOSES.  /19/ 

OPINIONS OF THIS COURT AND OF INDIVIDUAL JUSTICES HAVE SUGGESTED
FOUR PROVISIONS OF THE CONSTITUTION AS POSSIBLE SOURCES OF A RIGHT TO
TRAVEL ENFORCEABLE AGAINST THE FEDERAL OR STATE GOVERNMENTS:  THE
COMMERCE CLAUSE; /20/  THE PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV,
SEC. 2; /21/  THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH
AMENDMENT; /22/  AND THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 
/23/  THE COMMERCE CLAUSE CAN BE OF NO ASSISTANCE TO THESE APPELLEES,
SINCE THAT CLAUSE GRANTS PLENARY POWER TO CONGRESS, /24/  AND CONGRESS
EITHER ENACTED OR APPROVED ALL OF THE RESIDENCE REQUIREMENTS HERE
CHALLENGED.  THE PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV, SEC. 2,
/25/  IS IRRELEVANT, FOR IT APPEARS SETTLED THAT THIS CLAUSE NEITHER
LIMITS FEDERAL POWER NOR PREVENTS A STATE FROM DISTINGUISHING AMONG ITS
OWN CITIZENS, BUT SIMPLY "PREVENTS A STATE FROM DISCRIMINATING AGAINST
CITIZENS OF OTHER STATES IN FAVOR OF ITS OWN."  HAGUE V. CIO, 307 U.S.
496, 511 (1939) (OPINION OF ROBERTS, J.); SEE SLAUGHTER-HOUSE CASES, 16
WALL.  36, 77 (1873).  SINCE CONGRESS ENACTED THE DISTRICT OF COLUMBIA
RESIDENCE STATUTE, AND SINCE THE PENNSYLVANIA AND CONNECTICUT APPELLEES
WERE RESIDENTS AND THEREFORE CITIZENS OF THOSE STATES WHEN THEY SOUGHT
WELFARE, THE CLAUSE CAN HAVE NO APPLICATION IN ANY OF THESE CASES. 

THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT
PROVIDES THAT:  "NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL
ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED
STATES."  IT IS EVIDENT THAT THIS CLAUSE CANNOT BE APPLICABLE IN THE
DISTRICT OF COLUMBIA APPEAL, SINCE IT IS LIMITED IN TERMS TO INSTANCES
OF STATE ACTION.  IN THE PENNSYLVANIA AND CONNECTICUT CASES, THE
RESPECTIVE STATES DID IMPOSE AND ENFORCE THE RESIDENCE REQUIREMENTS. 
HOWEVER, CONGRESS APPROVED THESE REQUIREMENTS IN 42 U.S.C. 602(B).  THE
FACT OF CONGRESSIONAL APPROVAL, TOGETHER WITH THIS COURT'S PAST
STATEMENTS ABOUT THE NATURE OF THE FOURTEENTH AMENDMENT PRIVILEGES AND
IMMUNITIES CLAUSE, LEADS ME TO BELIEVE THAT THE CLAUSE AFFORDS NO
ADDITIONAL HELP TO THESE APPELLEES, AND THAT THE DECISIVE ISSUE IS
WHETHER CONGRESS ITSELF MAY IMPOSE SUCH REQUIREMENTS.  THE VIEW OF THE
PRIVILEGES AND IMMUNITIES CLAUSE WHICH HAS MOST OFTEN BEEN ADOPTED BY
THE COURT AND BY INDIVIDUAL JUSTICES IS THAT IT EXTENDS ONLY TO THOSE
"PRIVILEGES AND IMMUNITIES" WHICH "ARISE OR GROW OUT OF THE
RELATIONSHIP OF UNITED STATES CITIZENS TO THE NATIONAL GOVERNMENT." 
HAGUE V. CIO, 307 U.S. 496, 520 (1939) (OPINION OF STONE, J.).  /26/
ON THE AUTHORITY OF CRANDALL V. NEVADA, 6 WALL.  35 (1868), THOSE
PRIVILEGES AND IMMUNITIES HAVE REPEATEDLY BEEN SAID TO INCLUDE THE
RIGHT TO TRAVEL FROM STATE TO STATE, /27/  PRESUMABLY FOR THE REASON
ASSIGNED IN CRANDALL:  THAT STATE RESTRICTIONS ON TRAVEL MIGHT
INTERFERE WITH INTERCOURSE BETWEEN THE FEDERAL GOVERNMENT AND ITS
CITIZENS.  /28/  THIS KIND OF OBJECTION TO STATE WELFARE RESIDENCE
REQUIREMENTS WOULD SEEM NECESSARILY TO VANISH IN THE FACE OF
CONGRESSIONAL AUTHORIZATION, FOR EXCEPT IN THOSE INSTANCES WHEN ITS
AUTHORITY IS LIMITED BY A CONSTITUTIONAL PROVISION BINDING UPON IT (AS
THE FOURTEENTH AMENDMENT IS NOT), CONGRESS HAS FULL POWER TO DEFINE THE
RELATIONSHIP BETWEEN CITIZENS AND THE FEDERAL GOVERNMENT. 

SOME JUSTICES, NOTABLY THE DISSENTERS IN THE SLAUGHTER-HOUSE CASES,
16 WALL.  36, 83, 111, 124 (1873) (FIELD, BRADLEY, AND SWAYNE, JJ.,
DISSENTING), AND THE CONCURRING JUSTICES IN EDWARDS V. CALIFORNIA, 314
U.S. 160, 177, 181 (1941) (DOUGLAS AND JACKSON, JJ., CONCURRING), HAVE
GONE FURTHER AND INTIMATED THAT THE FOURTEENTH AMENDMENT RIGHT TO
TRAVEL INTERSTATE IS A CONCOMITANT OF FEDERAL CITIZENSHIP WHICH STEMS
FROM SOURCES EVEN MORE BASIC THAN THE NEED TO PROTECT CITIZENS IN THEIR
RELATIONS WITH THE FEDERAL GOVERNMENT.  THE SLAUGHTER-HOUSE DISSENTERS
SUGGESTED THAT THE PRIVILEGES AND IMMUNITIES OF NATIONAL CITIZENSHIP,
INCLUDING FREEDOM TO TRAVEL, WERE THOSE NATURAL RIGHTS "WHICH OF RIGHT
BELONG TO THE CITIZENS OF ALL FREE GOVERNMENTS," 16 WALL.,AT 98 (FIELD,
J.).  HOWEVER, SINCE SUCH RIGHTS ARE "THE RIGHTS OF CITIZENS OF ANY
FREE GOVERNMENT," ID., AT 114 (BRADLEY, J.), IT WOULD APPEAR THAT THEY
MUST BE IMMUNE FROM NATIONAL AS WELL AS STATE ABRIDGMENT.  TO THE
EXTENT THAT THEY MAY BE VALIDLY LIMITED BY CONGRESS, THERE WOULD SEEM
TO BE NO REASON WHY THEY MAY NOT BE SIMILARLY ABRIDGED BY STATES ACTING
WITH CONGRESSIONAL APPROVAL. 

THE CONCURRING JUSTICES IN EDWARDS LAID EMPHASIS NOT UPON NATURAL
RIGHTS BUT UPON A GENERALIZED CONCERN FOR THE FUNCTIONING OF THE
FEDERAL SYSTEM, STRESSING THAT TO ALLOW A STATE TO CURTAIL "THE RIGHTS
OF NATIONAL CITIZENSHIP WOULD BE TO CONTRAVENE EVERY CONCEPTION OF
NATIONAL UNITY," 314 U.S.,AT 181 (DOUGLAS, J.), AND THAT "(IF NATIONAL
CITIZENSHIP MEANS LESS THAN (THE RIGHT TO MOVE INTERSTATE) IT MEANS
NOTHING."  ID., AT 183 (JACKSON, J.).  HOWEVER, EVEN UNDER THIS
RATIONALE THE CLAUSE WOULD APPEAR TO OPPOSE NO OBSTACLE TO
CONGRESSIONAL DELINEATION OF THE RIGHTS OF NATIONAL CITIZENSHIP,
INSOFAR AS CONGRESS MAY DO SO WITHOUT INFRINGING OTHER PROVISIONS OF
THE CONSTITUTION.  MR. JUSTICE JACKSON EXPLICITLY RECOGNIZED IN EDWARDS
THAT:  "THE RIGHT OF THE CITIZEN TO MIGRATE FROM STATE TO STATE . . .
(IS) SUBJECT TO ALL CONSTITUTIONAL LIMITATIONS IMPOSED BY THE FEDERAL
GOVERNMENT," ID., AT 184.  AND NOTHING IN THE NATURE OF FEDERALISM
WOULD SEEM TO PREVENT CONGRESS FROM AUTHORIZING THE STATES TO DO WHAT
CONGRESS MIGHT VALIDLY DO ITSELF.  INDEED, THIS COURT HAS HELD, FOR
EXAMPLE, THAT CONGRESS MAY EMPOWER THE STATES TO UNDERTAKE REGULATIONS
OF COMMERCE WHICH WOULD OTHERWISE BE PROHIBITED BY THE NEGATIVE
IMPLICATIONS OF THE COMMERCE CLAUSE.  SEE PRUDENTIAL INS. CO. V.
BENJAMIN, 328 U.S. 408 (1946).  HENCE, AS HAS ALREADY BEEN SUGGESTED,
THE DECISIVE QUESTION IS WHETHER CONGRESS MAY LEGITIMATELY ENACT
WELFARE RESIDENCE REQUIREMENTS, AND THE FOURTEENTH AMENDMENT PRIVILEGES
AND IMMUNITIES CLAUSE ADDS NO EXTRA FORCE TO THE APPELLEE'S ATTACK ON
THE REQUIREMENTS. 

THE LAST POSSIBLE SOURCE OF A RIGHT TO TRAVEL IS ONE WHICH DOES
OPERATE AGAINST THE FEDERAL GOVERNMENT:  THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT.  /29/  IT IS NOW SETTLED THAT FREEDOM TO TRAVEL IS AN
ELEMENT OF THE "LIBERTY" SECURED BY THAT CLAUSE.  IN KENT V. DULLES,
357 U.S. 116, 125-126 (1958), THE COURT SAID: 

     "THE RIGHT TO TRAVEL IS A PART OF THE 'LIBERTY' OF WHICH THE

  CITIZEN CANNOT BE DEPRIVED WITHOUT DUE PROCESS OF LAW UNDER THE

  FIFTH AMENDMENT.  . . . FREEDOM OF MOVEMENT ACROSS FRONTIERS . .
.

  , AND INSIDE FRONTIERS AS WELL, WAS A PART OF OUR HERITAGE.  . .
.

"

THE COURT ECHOED THESE REMARKS IN APTHEKER V. SECRETARY OF STATE, 378
U.S. 500, 505-506 (1964), AND ADDED: 

     "SINCE THIS CASE INVOLVES A PERSONAL LIBERTY PROTECTED BY THE

BILL OF RIGHTS, WE BELIEVE THAT THE PROPER APPROACH TO

LEGISLATION CURTAILED THAT LIBERTY MUST BE THAT ADOPTED BY THIS

  COURT IN NAACP V. BUTTON, 371 U.S. 415, AND THORNHILL V. ALABAMA,

  310 U.S. 88.  . . . (SINCE FREEDOM OF TRAVEL IS A CONSTITUTIONAL

  LIBERTY CLOSELY RELATED TO RIGHTS OF FREE SPEECH AND ASSOCIATION,

  WE BELIEVE THAT APPELLANTS . . . SHOULD NOT BE REQUIRED TO ASSUME

  THE BURDEN OF DEMONSTRATING THAT CONGRESS COULD NOT HAVE WRITTEN

  A STATUTE CONSTITUTIONALLY PROHIBITING THEIR TRAVEL."  ID., AT

516-517. 

HOWEVER, IN ZEMEL V. RUSK, 381 U.S. 1 (1965), THE FIRST AMENDMENT CAST
OF THE APTHEKER OPINION WAS EXPLAINED AS HAVING STEMMED FROM THE FACT
THAT APTHEKER WAS FORBIDDEN TO TRAVEL BECAUSE OF "EXPRESSION OR
ASSOCIATION ON HIS PART," ID., AT 16.  THE COURT NOTED THAT ZEMEL WAS
"NOT BEING FORCED TO CHOOSE BETWEEN MEMBERSHIP IN AN ORGANIZATION AND
FREEDOM TO TRAVEL," IBID., AND HELD THAT THE MERE CIRCUMSTANCE THAT
ZEMEL'S PROPOSED JOURNEY TO CUBA MIGHT BE USED TO COLLECT INFORMATION
OF POLITICAL AND SOCIAL SIGNIFICANCE WAS NOT ENOUGH TO BRING THE CASE
WITHIN THE FIRST AMENDMENT CATEGORY. 

FINALLY, IN UNITED STATES V. GUEST, 383 U.S. 745 (1966), THE COURT
AGAIN HAD OCCASION TO CONSIDER THE RIGHT OF INTERSTATE TRAVEL.  WITHOUT
SPECIFYING THE SOURCE OF THAT RIGHT, THE COURT SAID: 

"THE CONSTITUTIONAL RIGHT TO TRAVEL FROM ONE STATE TO ANOTHER . . .
OCCUPIES A POSITION FUNDAMENTAL TO THE CONCEPT OF OUR FEDERAL UNION. 
IT IS A RIGHT THAT HAS BEEN FIRMLY ESTABLISHED AND REPEATEDLY
RECOGNIZED.  . . . (THE) RIGHT FINDS NO EXPLICIT MENTION IN THE
CONSTITUTION.  THE REASON, IT HAS BEEN SUGGESTED, IS THAT A RIGHT SO
ELEMENTARY WAS CONCEIVED FROM THE BEGINNING TO BE A NECESSARY
CONCOMITANT OF THE STRONGER UNION THE CONSTITUTION CREATED.  IN ANY
EVENT, FREEDOM TO TRAVEL THROUGHOUT THE UNITED STATES HAS LONG BEEN
RECOGNIZED AS A BASIC RIGHT UNDER THE CONSTITUTION."  ID., AT 757-758. 
(FOOTNOTES OMITTED.)  I THEREFORE CONCLUDE THAT THE RIGHT TO TRAVEL
INTERSTATE IS A "FUNDAMENTAL" RIGHT WHICH, FOR PRESENT PURPOSES, SHOULD
BE REGARDED AS HAVING ITS SOURCE IN THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

THE NEXT QUESTIONS ARE:  (1) TO WHAT EXTENT DOES A ONE-YEAR
RESIDENCE CONDITION UPON WELFARE ELIGIBILITY INTERFERE WITH THIS RIGHT
TO TRAVEL?; AND (2) WHAT ARE THE GOVERNMENTAL INTERESTS SUPPORTING SUCH
A CONDITION?  THE CONSEQUENCE OF THE RESIDENCE REQUIREMENTS IS THAT
PERSONS WHO CONTEMPLATE INTERESTATE CHANGES OF RESIDENCE, AND WHO
BELIEVE THAT THEY OTHERWISE WOULD QUALIFY FOR WELFARE PAYMENTS, MUST
TAKE INTO ACCOUNT THE FACT THAT SUCH ASSISTANCE WILL NOT BE AVAILABLE
FOR A YEAR AFTER ARRIVAL.  THE NUMBER OR PROPORTION OF PERSONS WHO ARE
ACTUALLY DETERRED FROM CHANGING RESIDENCE BY THE EXISTENCE OF THESE
PROVISIONS IS UNKNOWN.  IF ONE ACCEPTS EVIDENCE PUT FORWARD BY THE
APPELLEES, /30/  TO THE EFFECT THAT THERE WOULD BE ONLY A MINUSCULE
INCREASE IN THE NUMBER OF WELFARE APPLICANTS WERE EXISTING RESIDENCE
REQUIREMENTS TO BE DONE AWAY WITH, IT FOLLOWS THAT THE REQUIREMENTS DO
NOT DETER AN APPRECIABLE NUMBER OF PERSONS FROM MOVING INTERSTATE. 

AGAINST THIS INDIRECT IMPACT ON THE RIGHT TO TRAVEL MUST BE SET THE
INTERESTS OF THE STATES, AND OF CONGRESS WITH RESPECT TO THE DISTRICT
OF COLUMBIA, IN IMPOSING RESIDENCE CONDITIONS.  THERE APPEAR TO BE FOUR
SUCH INTERESTS.  FIRST, IT IS EVIDENT THAT A PRIMARY CONCERN OF
CONGRESS AND THE PENNSYLVANIA AND CONNECTICUT LEGISLATURES WAS TO DENY
WELFARE BENEFITS TO PERSONS WHO MOVED INTO THE JURISDICTION PRIMARILY
IN ORDER TO COLLECT THOSE BENEFITS.  /31/  THIS SEEMS TO ME AN ENTIRELY
LEGITIMATE OBJECTIVE.  A LEGISLATURE IS CERTAINLY NOT OBLIGED TO
FURNISH WELFARE ASSISTANCE TO EVERY INHABITANT OF THE JURISDICTION, AND
IT IS ENTIRELY RATIONAL TO DENY BENEFITS TO THOSE WHO ENTER PRIMARILY
IN ORDER TO RECEIVE THEM, SINCE THIS WILL MAKE MORE FUNDS AVAILABLE FOR
THOSE WHOM THE LEGISLATURE DEEMS MORE WORTHY OF SUBSIDY.  /32/ 

A SECOND POSSIBLE PURPOSE OF RESIDENCE REQUIREMENTS IS THE
PREVENTION OF FRAUD.  A RESIDENCE REQUIREMENT PROVIDES AN OBJECTIVE AND
WORKABLE MEANS OF DETERMINING THAT AN APPLICANT INTENDS TO REMAIN
INDEFINITELY WITHIN THE JURISDICTION.  IT THEREFORE MAY AID IN
ELIMINATING THE FRAUDULENT COLLECTION OF BENEFITS BY NONRESIDENTS AND
PERSONS ALREADY RECEIVING ASSISTANCE IN OTHER STATES.  THERE CAN BE NO
DOUBT THAT PREVENTION OF FRAUD IS A VALID LEGISLATIVE GOAL.  THIRD, THE
REQUIREMENT OF A FIXED PERIOD OF RESIDENCE MAY HELP IN PREDICTING THE
BUDGETARY AMOUNT WHICH WILL BE NEEDED FOR PUBLIC ASSISTANCE IN THE
FUTURE; WHILE NONE OF THE APPELLANT JURISDICTIONS APPEARS TO KEEP DATA
SUFFICIENT TO PERMIT THE MAKING OF DETAILED BUDGETARY PREDICTIONS IN
CONSEQUENCE OF THE REQUIREMENT, /33/  IT IS PROBABLE THAT IN THE EVENT
OF A VERY LARGE INCREASE OR DECREASE IN THE NUMBER OF INDIGENT
NEWCOMERS THE WAITING PERIOD WOULD GIVE THE LEGISLATURE TIME TO MAKE
NEEDED ADJUSTMENTS IN THE WELFARE LAWS.  OBVIOUSLY, THIS IS A PROPER
OBJECTIVE.  FOURTH, THE RESIDENCE REQUIREMENTS CONCEIVABLY MAY HAVE
BEEN PREDICATED UPON A LEGISLATIVE DESIRE TO RESTRICT WELFARE PAYMENTS
FINANCED IN PART BY STATE TAX FUNDS TO PERSONS WHO HAVE RECENTLY MADE
SOME CONTRIBUTION TO THE STATE'S ECONOMY, THROUGH HAVING BEEN EMPLOYED,
HAVING PAID TAXES, OR HAVING SPENT MONEY IN THE STATE.  THIS TOO WOULD
APPEAR TO BE A LEGITIMATE PURPOSE.  /34/ 

THE NEXT QUESTION IS THE DECISIVE ONE:  WHETHER THE GOVERNMENTAL
INTERESTS SERVED BY RESIDENCE REQUIREMENTS OUTWEIGH THE BURDEN IMPOSED
UPON THE RIGHT TO TRAVEL.  IN MY VIEW, A NUMBER OF CONSIDERATIONS
MILITATE IN FAVOR OF CONSTITUTIONALITY.  FIRST, AS JUST SHOWN, FOUR
SEPARATE, LEGITIMATE GOVERNMENTAL INTERESTS ARE FURTHERED BY RESIDENCE
REQUIREMENTS.  SECOND, THE IMPACT OF THE REQUIREMENTS UPON THE FREEDOM
OF INDIVIDUALS TO TRAVEL INTERSTATE IS INDIRECT AND, ACCORDING TO
EVIDENCE PUT FORWARD BY THE APPELLEES THEMSELVES, INSUBSTANTIAL. 
THIRD, THESE ARE NOT CASES IN WHICH A STATE OF STATES, ACTING ALONE,
HAVE ATTEMPTED TO INTERFERE WITH THE RIGHT OF CITIZENS TO TRAVEL, BUT
ONE IN WHICH THE STATES HAVE ACTED WITHIN THE TERMS OF A LIMITED
AUTHORIZATION BY THE NATIONAL GOVERNMENT, AND IN WHICH CONGRESS ITSELF
HAS LAID DOWN A LIKE RULE FOR THE DISTRICT OF COLUMBIA.  FOURTH, THE
LEGISLATURES WHICH ENACTED THESE STATUTES HAVE BEEN FULLY EXPOSED TO
THE ARGUMENTS OF THE APPELLEES AS TO WHY THESE RESIDENCE REQUIREMENTS
ARE UNWISE, AND HAVE REJECTED THEM.  THIS IS NOT, THEREFORE, AN
INSTANCE IN WHICH LEGISLATURES HAVE ACTED WITHOUT MATURE DELIBERATION. 
FIFTH, AND OF LONGER-RANGE IMPORTANCE, THE FIELD OF WELFARE
ASSISTANCE IS ONE IN WHICH THERE IS A WIDELY RECOGNIZED NEED FOR FRESH
SOLUTIONS AND CONSEQUENTLY FOR EXPERIMENTATION.  INVALIDATION OF
WELFARE RESIDENCE REQUIREMENTS MIGHT HAVE THE UNFORTUNATE CONSEQUENCE
OF DISCOURAGING THE FEDERAL AND STATE GOVERNMENTS FROM ESTABLISHING
UNUSUALLY GENEROUS WELFARE PROGRAMS IN PARTICULAR AREAS ON AN
EXPERIMENTAL BASIS, BECAUSE OF FEARS THAT THE PROGRAM WOULD CAUSE AN
INFLUX OF PERSONS SEEKING HIGHER WELFARE PAYMENTS.  SIXTH AND FINALLY,
A STRONG PRESUMPTION OF CONSTITUTIONALITY ATTACHES TO STATUTES OF THE
TYPES NOW BEFORE US.  CONGRESSIONAL ENACTMENTS COME TO THIS COURT WITH
AN EXTREMELY HEAVY PRESUMPTION OF VALIDITY.  SEE, E.G., BROWN V.
MARYLAND, 12 WHEAT.  419, 436 (1827); INSURANCE CO. V. GLIDDEN CO., 284
U.S. 151, 158 (1931); UNITED STATES V. BUTLER, 297 U.S. 1, 67 (1936);
UNITED STATES V. NATIONAL DAIRY CORP., 372 U.S. 29, 32 (1963).  A
SIMILAR PRESUMPTION OF CONSTITUTIONALITY ATTACHES TO STATE STATUTES,
PARTICULARLY WHEN, AS HERE, A STATE HAS ACTED UPON A SPECIFIC
AUTHORIZATION FROM CONGRESS.  SEE, E.G., POWELL V. PENNSYLVANIA, 127
U.S. 678, 684-685 (1888); UNITED STATES V. DES MOINES N. & R. CO., 142
U.S. 510, 544-545 (1892). 

I DO NOT CONSIDER THAT THE FACTORS WHICH HAVE BEEN URGED TO OUTWEIGH
THESE CONSIDERATIONS ARE SUFFICIENT TO RENDER UNCONSTITUTIONAL THESE
STATE AND FEDERAL ENACTMENTS.  IT IS SAID, FIRST, THAT THIS COURT, IN
THE OPINIONS DISCUSSED, SUPRA, AT 669-671, HAS ACKNOWLEDGED THAT THE
RIGHT TO TRAVEL INTERESTATE IS A "FUNDAMENTAL" FREEDOM.  SECOND, IT IS
CONTENDED THAT THE GOVERNMENTAL OBJECTIVES MENTIONED ABOVE EITHER ARE
EPHEMERAL OR COULD BE ACCOMPLISHED BY MEANS WHICH DO NOT IMPINGE AS
HEAVILY ON THE RIGHT TO TRAVEL, AND HENCE THAT THE REQUIREMENTS ARE
UNCONSTITUTIONAL BECAUSE THEY "SWEEP UNNECESSARILY BROADLY AND THEREBY
INVADE THE AREA OF PROTECTED FREEDOMS."  NAACP V. ALABAMA, 377 U.S.
288, 307 (1964).  THE APPELLEES CLAIM THAT WELFARE PAYMENTS COULD BE
DENIED THOSE WHO COME PRIMARILY TO COLLECT WELFARE BY MEANS OF LESS
RESTRICTIVE PROVISIONS, SUCH AS NEW YORK'S WELFARE ABUSES LAW; /35/
THAT FRAUD COULD BE PREVENTED BY INVESTIGATION OF INDIVIDUAL APPLICANTS
OR BY A MUCH SHORTER RESIDENCE PERIOD; THAT BUDGETARY PREDICTABILITY IS
A REMOTE AND SPECULATIVE GOAL; AND THAT ASSURANCE OF INVESTMENT IN THE
COMMUNITY COULD BE OBTAINED BY A SHORTER RESIDENCE PERIOD OR BY TAKING
INTO ACCOUNT PRIOR INTERVALS OF RESIDENCE IN THE JURISDICTION, 

TAKING ALL OF THESE COMPETING CONSIDERATIONS INTO ACCOUNT, I BELIEVE
THAT THE BALANCE DEFINITELY FAVORS CONSTITUTIONALITY.  IN REACHING THAT
CONCLUSION, I DO NOT MINIMIZE THE IMPORTANCE OF THE RIGHT TO TRAVEL
INTERSTATE.  HOWEVER, THE IMPACT OF RESIDENCE CONDITIONS UPON THAT
RIGHT IS INDIRECT AND APPARENTLY QUITE INSUBSTANTIAL.  ON THE OTHER
HAND, THE GOVERNMENTAL PURPOSES SERVED BY THE REQUIREMENTS ARE
LEGITIMATE AND REAL, AND THE RESIDENCE REQUIREMENTS ARE CLEARLY SUITED
TO THEIR ACCOMPLISHMENT.  TO ABOLISH RESIDENCE REQUIREMENTS MIGHT WELL
DISCOURAGE HIGHLY WORTHWHILE EXPERIMENTATION IN THE WELFARE FIELD.  THE
STATUTES COME TO US CLOTHED WITH THE AUTHORITY OF CONGRESS AND ATTENDED
BY A CORRESPONDINGLY HEAVY PRESUMPTION OF CONSTITUTIONALITY.  MOREOVER,
ALTHOUGH THE APPELLEES ASSERT THAT THE SAME OBJECTIVES COULD HAVE BEEN
ACHIEVED BY LESS RESTRICTIVE MEANS, THIS IS AN AREA IN WHICH THE
JUDICIARY SHOULD BE ESPECIALLY SLOW TO FETTER THE JUDGMENT OF CONGRESS
AND OF SOME 46 STATE LEGISLATURES /36/  IN THE CHOICE OF METHODS. 
RESIDENCE REQUIREMENTS HAVE ADVANTAGES, SUCH AS ADMINISTRATIVE
SIMPLICITY AND RELATIVE CERTAINTY, WHICH ARE NOT SHARED BY THE
ALTERNATIVE SOLUTIONS PROPOSED BY THE APPELLEES.  IN THESE
CIRCUMSTANCES, I CANNOT FIND THAT THE BURDEN IMPOSED BY RESIDENCE
REQUIREMENTS UPON ABILITY TO TRAVEL OUTWEIGHS THE GOVERNMENTAL
INTERESTS IN THEIR CONTINUED EMPLOYMENT.  NOR DO I BELIEVE THAT THE
PERIOD OF RESIDENCE REQUIRED IN THESE CASES-- ONE YEAR-- IS SO
EXCESSIVELY LONG AS TO JUSTIFY A FINDING OF UNCONSTITUTIONALITY ON THAT
SCORE. 

I CONCLUDE WITH THE FOLLOWING OBSERVATIONS.  TODAY'S DECISION, IT
SEEMS TO ME, REFLECTS TO AN UNUSUAL DEGREE THE CURRENT NOTION THAT THIS
COURT POSSESSES A PECULIAR WISDOM ALL ITS OWN WHOSE CAPACITY TO LEAD
THIS NATION OUT OF ITS PRESENT TROUBLES IS CONTAINED ONLY BY THE LIMITS
OF JUDICIAL INGENUITY IN CONTRIVING NEW CONSTITUTIONAL PRINCIPLES TO
MEET EACH PROBLEM AS IT ARISES.  FOR ANYONE WHO, LIKE MYSELF, BELIEVES
THAT IT IS AN ESSENTIAL FUNCTION OF THIS COURT TO MAINTAIN THE
CONSTITUTIONAL DIVISIONS BETWEEN STATE AND FEDERAL AUTHORITY AND AMONG
THE THREE BRANCHES OF THE FEDERAL GOVERNMENT, TODAY'S DECISION IS A
STEP IN THE WRONG DIRECTION.  THIS RESURGENCE OF THE EXPANSIVE VIEW OF
"EQUAL PROTECTION" CARRIES THE SEEDS OF MORE JUDICIAL INTERFERENCE WITH
THE STATE AND FEDERAL LEGISLATIVE PROCESS, MUCH MORE INDEED THAN DOES
THE JUDICIAL APPLICATION OF "DUE PROCESS" ACCORDING TO TRADITIONAL
CONCEPTS (SEE MY DISSENTING OPINION IN DUNCAN V. LOUISIANA, 391 U.S.
145, 171 (1968)), ABOUT WHICH SOME MEMBERS OF THIS COURT HAVE EXPRESSED
FEARS AS TO ITS POTENTIALITIES FOR SETTING US JUDGES "AT LARGE."  /37/
I CONSIDER IT PARTICULARLY UNFORTUNATE THAT THIS JUDICIAL ROADBLOCK TO
THE POWERS OF CONGRESS IN THIS FIELD SHOULD OCCUR AT THE VERY THRESHOLD
OF THE CURRENT DISCUSSIONS REGARDING THE "FEDERALIZING" OF THESE
ASPECTS OF WELFARE RELIEF. 

/1/  OF THE DISTRICT OF COLUMBIA APPELLEES, ALL SOUGHT AFDC
ASSISTANCE EXCEPT APPELLEE BARLEY, WHO ASKED FOR AID TO THE PERMANENTLY
AND TOTALLY DISABLED.  IN 42 U.S.C. 602(B), CONGRESS HAS AUTHORIZED
"STATES" (INCLUDING THE DISTRICT OF COLUMBIA, SEE 42 U.S.C. 1301(A)(1))
TO REQUIRE UP TO ONE YEAR'S IMMEDIATELY PRIOR RESIDENCE AS A CONDITION
OF ELIGIBILITY FOR AFDC ASSISTANCE.  SEE N. 15, INFRA.  IN 42 U.S.C.
1352(B)(1) AND 1382(B)(2), CONGRESS HAS PERMITTED "STATES" TO CONDITION
DISABILITY PAYMENTS UPON THE APPLICANT'S HAVING RESIDED IN THE STATE
FOR UP TO FIVE OF THE PRECEDING NINE YEARS.  HOWEVER, D.C. CODE SEC. 3
203 PRESCRIBES A ONE-YEAR RESIDENCE REQUIREMENT FOR BOTH TYPES OF
ASSISTANCE, SO THE QUESTION OF THE CONSTITUTIONALITY OF A LONGER
REQUIRED RESIDENCE PERIOD IS NOT BEFORE US. 

APPELLEE BARLEY ALSO CHALLENGED IN THE DISTRICT COURT THE
CONSTITUTIONALITY OF A DISTRICT OF COLUMBIA REGULATION WHICH PROVIDED
THAT TIME SPENT IN A DISTRICT OF COLUMBIA INSTITUTION AS A PUBLIC
CHARGE DID NOT COUNT AS RESIDENCE FOR PURPOSES OF WELFARE ELIGIBILITY;
THE DISTRICT COURT HELD THAT THE REGULATION MUST FALL FOR THE SAME
REASONS AS THE RESIDENCE STATUTE ITSELF.  SINCE I BELIEVE THAT THE
DISTRICT COURT ERRED IN STRIKING DOWN THE STATUTE, AND SINCE THE ISSUE
OF THE REGULATION'S CONSTITUTIONALITY HAS BEEN ARGUED IN THIS COURT
ONLY IN PASSING, I WOULD REMAND APPELLEE BARLEY'S CAUSE FOR FURTHER
CONSIDERATION OF THAT QUESTION. 

/2/  I DO NOT BELIEVE THAT THE PENNSYLVANIA APPEAL PRESENTS THE
ADDITIONAL QUESTION OF THE VALIDITY OF A RESIDENCE CONDITION FOR A
PURELY STATE-FINANCED AND STATE-AUTHORIZED PUBLIC ASSISTANCE PROGRAM. 
THE PENNSYLVANIA WELFARE ELIGIBILITY PROVISION, PA. STAT. ANN., TIT.
62, SEC. 432 (1968), STATES: 

"EXCEPT AS HEREINAFTER OTHERWISE PROVIDED . . . , NEEDY PERSONS OF
THE CLASSES DEFINED IN CLAUSES (1) AND (2) OF THIS SECTION SHALL BE
ELIGIBLE FOR ASSISTANCE: 

"(1) PERSONS FOR WHOSE ASSISTANCE FEDERAL FINANCIAL PARTICIPATION IS
AVAILABLE TO THE COMMONWEALTH AS . . . AID TO FAMILIES WITH DEPENDENT
CHILDREN, . . . AND WHICH ASSISTANCE IS NOT PRECLUDED BY OTHER
PROVISIONS OF LAW. 

"(2) OTHER PERSONS WHO ARE CITIZENS OF THE UNITED STATES.  . . .

        .          .          .          . 

"(6) ASSISTANCE MAY BE GRANTED ONLY TO OR IN BEHALF OF A PERSON
RESIDING IN PENNSYLVANIA WHO (I) HAS RESIDED THEREIN FOR AT LEAST ONE
YEAR IMMEDIATELY PRECEDING THE DATE OF APPLICATION.  . . . " AS I
UNDERSTAND IT, THIS STATUTE INITIALLY DIVIDES PENNSYLVANIA WELFARE
APPLICANTS INTO TWO CLASSES:  (1) PERSONS FOR WHOM FEDERAL FINANCIAL
ASSISTANCE IS AVAILABLE AND NOT PRECLUDED BY OTHER PROVISIONS OF
FEDERAL LAW (IF STATE LAW, INCLUDING THE RESIDENCE REQUIREMENT, WERE
INTENDED, THE "EXCEPT AS HEREINAFTER OTHERWISE PROVIDED" PROVISO AT THE
BEGINNING OF THE ENTIRE SECTION WOULD BE SURPLUSAGE); (2) OTHER PERSONS
WHO ARE CITIZENS.  THE RESIDENCE REQUIREMENT APPLIES TO BOTH CLASSES. 
HOWEVER, SINCE ALL OF THE PENNSYLVANIA APPELLEES CLEARLY FALL INTO THE
FIRST OR FEDERALLY ASSISTED CLASS, THERE IS NO NEED TO CONSIDER WHETHER
RESIDENCE CONDITIONS MAY CONSTITUTIONALLY BE IMPOSED WITH RESPECT TO
THE SECOND OR PURELY STATE-ASSISTED CLASS. 

/3/  IN CHARACTERIZING THIS ARGUMENT AS ONE BASED ON AN ALLEGED
DENIAL OF EQUAL PROTECTION OF THE LAWS, I DO NOT MEAN TO DISREGARD THE
FACT THAT THIS CONTENTION IS APPLICABLE IN THE DISTRICT OF COLUMBIA
ONLY THROUGH THE TERMS OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  NOR DO I MEAN TO SUGGEST THAT THESE TWO CONSTITUTIONAL
PHRASES ARE "ALWAYS INTERCHANGEABLE," SEE BOLLING V. SHARPE, 347 U.S.
497, 499 (1954).  IN THE CIRCUMSTANCES OF THIS CASE, I DO NOT BELIEVE
MYSELF OBLIGED TO EXPLORE WHETHER THERE MAY BE ANY DIFFERENCES IN THE
SCOPE OF THE PROTECTION AFFORDED BY THE TWO PROVISIONS. 

/4/  SEE, E.G., RAPID TRANSIT CORP. V. CITY OF NEW YORK, 303 U.S.
573, 578 (1938).  SEE ALSO INFRA, AT 662. 

/5/  SEE LOVING V. VIRGINIA, 388 U.S. 1, 11 (1967); CF. BOLLING V.
SHARPE, 347 U.S. 497, 499 (1954).  SEE ALSO HIRABAYASHI V. UNITED
STATES, 320 U.S. 81, 100 (1943); YICK WO V. HOPKINS, 118 U.S. 356
(1886). 

/6/  SEE N. 9, INFRA. 

/7/  SEE N. 9, INFRA. 

/8/  I RECOGNIZE THAT IN MY DISSENTING OPINION IN HARPER V. VIRGINIA
BD. OF ELECTIONS, SUPRA, AT 683, I CHARACTERIZED THE TEST APPLIED IN
CARRINGTON AS "THE TRADITIONAL EQUAL PROTECTION STANDARD."  I AM NOW
SATISFIED THAT THIS WAS TOO GENEROUS A READING OF THE COURT'S OPINION. 

/9/  ANALYSIS IS COMPLICATED WHEN THE STATUTORY CLASSIFICATION IS
GROUNDED UPON THE EXERCISE OF A "FUNDAMENTAL" RIGHT.  FOR THEN THE
STATUTE MAY COME WITHIN THE FIRST BRANCH OF THE "COMPELLING INTEREST"
DOCTRINE BECAUSE EXERCISE OF THE RIGHT IS DEEMED A "SUSPECT" CRITERION
AND ALSO WITHIN THE SECOND BECAUSE THE STATUTE IS CONSIDERED TO AFFECT
THE RIGHT BY DETERRING ITS EXERCISE.  WILLIAMS V. RHODES, SUPRA, IS
SUCH A CASE INSOFAR AS THE STATUTES INVOLVED BOTH INHIBITED EXERCISE OF
THE RIGHT OF POLITICAL ASSOCIATION AND DREW DISTINCTIONS BASED UPON THE
WAY THE RIGHT WAS EXERCISED.  THE PRESENT CASE IS ANOTHER INSTANCE,
INSOFAR AS WELFARE RESIDENCE STATUTES BOTH DETER INTERSTATE MOVEMENT
AND DISTINGUISH AMONG WELFARE APPLICANTS ON THE BASIS OF SUCH
MOVEMENT.  CONSEQUENTLY, I HAVE NOT ATTEMPTED TO SPECIFY THE BRANCH OF
THE DOCTRINE UPON WHICH THESE DECISIONS REST. 

/10/  SEE N. 9, SUPRA. 

/11/  SEE, E.G., WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483 (1955);
KOTCH V. BOARD OF RIVER PILOT COMM'RS, 330 U.S. 552 (1947). 

/12/  SEE, E.G., BUNTING V. OREGON, 243 U.S. 426 (1917). 

/13/  SEE, E.G., MILLER V. WILSON, 236 U.S. 373 (1915). 

/14/  SEE, E.G., FERRY V. SPOKANE, P. & S.R. CO., 258 U.S. 314
(1922). 

/15/  SEE 44 STAT. 758, SEC. 1. 

/16/  THE ARGUMENTS FOR AND AGAINST WELFARE RESIDENCE REQUIREMENTS,
INCLUDING THEIR IMPACT ON INDIGENT MIGRANTS, WERE FULLY AIRED IN
CONGRESSIONAL COMMITTEE HEARINGS.  SEE, E.G., HEARINGS ON H.R. 4120
BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 74TH CONG., 1ST SESS.,
831-832, 861-871 (1935); HEARINGS ON S. 1130 BEFORE THE SENATE
COMMITTEE ON FINANCE, 74TH CONG., 1ST SESS., 522-540, 643, 656 (1935). 

/17/  I AM NOT AT ALL PERSUADED BY THE COURT'S ARGUMENT THAT
CONGRESS' SOLE PURPOSE WAS TO COMPEL "'(LIBERALITY OF RESIDENCE
REQUIREMENT.'"  SEE ANTE, AT 640.  IF THAT WAS THE ONLY OBJECTIVE, IT
COULD HAVE BEEN MORE EFFECTIVELY ACCOMPLISHED BY SPECIFYING THAT TO
QUALIFY FOR APPROVAL UNDER THE ACT A STATE ASSISTANCE PLAN MUST CONTAIN
NO RESIDENCE REQUIREMENT. 

/18/  SEE ACT TO PROVIDE AID TO DEPENDENT CHILDREN IN THE DISTRICT
OF COLUMBIA SEC. 3, 58 STAT. 277 (1944).  IN 1962, THIS ACT WAS
REPEALED AND REPLACED BY D.C. CODE SEC. 3-203, THE PROVISION NOW BEING
CHALLENGED.  SEE 76 STAT. 914. 

/19/  CF. ANTE, AT 639-641 AND NN. 24-25. 

/20/  SEE, E.G., EDWARDS V. CALIFORNIA, 314 U.S. 160 (1941); THE
PASSENGER CASES, 7 HOW.  283 (1849). 

/21/  SEE, E.G., CORFIELD V. CORYELL, 6 F.CAS.  546 (NO. 3230)
(1825) (MR. JUSTICE WASHINGTON). 

/22/  SEE, E.G., EDWARDS V. CALIFORNIA, 314 U.S. 160, 177, 181
(1941) (DOUGLAS AND JACKSON, JJ., CONCURRING); TWINING V. NEW JERSEY,
211 U.S. 78, 97 (1908) (DICTUM). 

/23/  SEE, E.G., KENT V. DULLES, 357 U.S. 116, 125-127 (1958);
APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 505-506 (1964). 

/24/  SEE, E.G., PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408, 423
(1946).  SEE ALSO MARYLAND V. WIRTZ, 392 U.S. 183, 193-199 (1968). 

/25/  "THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL
PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES." 

/26/  SEE SLAUGHTER-HOUSE CASES, 16 WALL.  36, 79 (1873); IN RE
KEMMLER, 136 U.S. 436, 448 (1890); MCPHERSON V. BLACKER, 146 U.S. 1, 38
(1892); GIOZZA V. TIERNAN, 148 U.S. 657, 661 (1893); DUNCAN V.
MISSOURI, 152 U.S. 377, 382 (1894); TWINING V. NEW JERSEY, 211 U.S. 78,
97-98 (1908).     /27/  SEE, E.G., SLAUGHTER-HOUSE CASES, SUPRA, AT 79;
TWINING V. NEW JERSEY, SUPRA, AT 97. 

/28/  THE CRANDALL COURT STRESSED THE "RIGHT" OF A CITIZEN TO COME
TO THE NATIONAL CAPITAL, TO HAVE ACCESS TO FEDERAL OFFICIALS, AND TO
TRAVEL TO SEAPORTS.  SEE 6 WALL.,AT 44.  OF COURSE, CRANDALL WAS
DECIDED BEFORE THE ENACTMENT OF THE FOURTEENTH AMENDMENT. 

/29/  PROFESSOR CHAFEE HAS SUGGESTED THAT THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT MAY SIMILARLY PROTECT THE RIGHT TO TRAVEL
AGAINST STATE INTERFERENCE.  SEE Z. CHAFEE, THREE HUMAN RIGHTS IN THE
CONSTITUTION OF 1787, P. 192 (1956).  HOWEVER, THAT CLAUSE SURELY
PROVIDES NO GREATER PROTECTION AGAINST THE STATES THAN DOES THE FIFTH
AMENDMENT CLAUSE AGAINST THE FEDERAL GOVERNMENT; SO THE DECISIVE
QUESTION STILL IS WHETHER CONGRESS MAY ENACT A RESIDENCE REQUIREMENT. 

/30/  SEE BRIEF FOR APPELLEES IN NO. 33, PP. 49-51 AND N. 70; BRIEF
FOR APPELLEES IN NO. 34, P. 24, N. 11; SUPPLEMENTAL BRIEF FOR APPELLEES
ON REARGUMENT 27-30. 

/31/  FOR CONGRESS, SEE, E.G., PROBLEMS OF HUNGRY CHILDREN IN THE
DISTRICT OF COLUMBIA, HEARINGS BEFORE THE SUBCOMMITTEE ON PUBLIC
HEALTH, EDUCATION, WELFARE, AND SAFETY OF THE SENATE COMMITTEE ON THE
DISTRICT OF COLUMBIA, 85TH CONG., 1ST SESS.  FOR CONNECTICUT, SEE
CONNECTICUT GENERAL ASSEMBLY, 1965 FEB. SPEC. SESS., HOUSE OF
REPRESENTATIVES PROCEEDINGS, VO. II, PT. 7, AT 3505.  FOR PENNSYLVANIA,
SEE APPENDIX IN NO. 34, PP. 96A-98A. 

/32/  THERE IS SUPPORT FOR THE VIEW THAT ENFORCEMENT OF RESIDENCE
REQUIREMENTS CAN SIGNIFICANTLY REDUCE WELFARE COSTS BY DENYING BENEFITS
TO THOSE WHO COME SOLELY TO COLLECT THEM.  FOR EXAMPLE, IN THE COURSE
OF A LONG ARTICLE GENERALLY CRITICAL OF RESIDENCE REQUIREMENTS, AND
AFTER A DETAILED DISCUSSION OF THE AVAILABLE INFORMATION, PROFESSOR
HARVITH HAS STATED: 

"A FAIR CONCLUSION SEEMS TO BE THAT, IN AT LEAST SOME STATES, IT IS
NOT UNREASONABLE FOR THE LEGISLATURE TO CONCLUDE THAT A USEFUL SAVING
IN WELFARE COSTS MAY BE OBTAINED BY RESIDENCE TESTS DISCOURAGING THOSE
WHO WOULD ENTER THE STATE SOLELY BECAUSE OF ITS WELFARE PROGRAMS.  IN
NEW YORK, FOR EXAMPLE, A ONE PER CENT SAVING IN WELFARE COSTS WOULD
AMOUNT TO SEVERAL MILLION DOLLARS."  HARVITH THE CONSTITUTIONALITY OF
RESIDENCE TESTS FOR GENERAL AND CATEGORICAL ASSISTANCE PROGRAMS, 54
CALIF.L.REV.  567, 618 (1966).  (FOOTNOTES OMITTED.)  SEE ALSO
HELVERING V. DAVIS, 301 U.S. 619, 644 (1937). 

FOR ESSENTIALLY THE SAME REASONS, I WOULD UPHOLD THE CONNECTICUT
WELFARE REGULATIONS WHICH EXCEPT FROM THE RESIDENCE REQUIREMENT PERSONS
WHO COME TO CONNECTICUT WITH A BONA FIDE JOB OFFER OR WITH RESOURCES
SUFFICIENT TO SUPPORT THEM FOR THREE MONTHS.  SEE 1 CONN.WELFARE
MANUAL, C. II, 219.1-219.2 (1966).  SUCH PERSONS ARE VERY UNLIKELY TO
HAVE ENTERED THE STATE PRIMARILY IN ORDER TO RECEIVE WELFARE BENEFITS. 

/33/  FOR PRECISE PREDICTION TO BE POSSIBLE, IT WOULD APPEAR THAT A
RESIDENCE REQUIREMENT MUST BE COMBINED WITH A PROCEDURE FOR
ASCERTAINING THE NUMBER OF INDIGENT PERSONS WHO ENTER THE JURISDICTION
AND THE PROPORTION OF THOSE PERSONS WHO WILL REMAIN INDIGENT DURING THE
RESIDENCE PERIOD. 

/34/  I DO NOT MEAN TO IMPLY THAT EACH OF THE ABOVE PURPOSES
NECESSARILY WAS SOUGHT BY EACH OF THE LEGISLATURES THAT ADOPTED
DURATIONAL RESIDENCE REQUIREMENTS.  IN CONNECTICUT, FOR EXAMPLE, THE
WELFARE BUDGET IS APPARENTLY OPEN-ENDED, SUGGESTING THAT THIS STATE IS
NOT SERIOUSLY CONCERNED WITH THE NEED FOR MORE ACCURATE BUDGETARY
ESTIMATES. 

/35/  THAT LAW, N.Y. SOC. WELFARE LAW SEC. 139-A, REQUIRES PUBLIC
WELFARE OFFICIALS TO CONDUCT A DETAILED INVESTIGATION IN ORDER TO
ASCERTAIN WHETHER A WELFARE "APPLICANT CAME INTO THE STATE FOR THE
PURPOSE OF RECEIVING PUBLIC ASSISTANCE OR CARE AND ACCORDINGLY IS
UNDERSERVING OF AND INELIGIBLE FOR ASSISTANCE.  . . . " 

/36/  THE FIGURE MAY BE VARIOUSLY CALCULATED.  THERE WAS TESTIMONY
BEFORE THE DISTRICT COURT IN THE PENNSYLVANIA CASE THAT 46 STATES HAD
SOME FORM OF RESIDENCE REQUIREMENT FOR WELFARE ASSISTANCE.  APPENDIX IN
NO. 34, PP. 92A-93A.  IT WAS STIPULATED IN THE CONNECTICUT CASE THAT IN
1965, 40 STATES HAD RESIDENCE REQUIREMENTS FOR AID TO DEPENDENT
CHILDREN.  APPENDIX TO APPELLANT'S BRIEF IN NO. 9, P. 45A.  SEE ALSO
ANTE, AT 639-640 AND N. 22. 

/37/  CF. HARPER V. VIRGINIA BD. OF ELECTIONS, 383 U.S. 663, 670,
675-680 (BLACK, J., DISSENTING). 

FRANCIS J. MACGREGOR, ASSISTANT ATTORNEY GENERAL OF CONNECTICUT,
ARGUED THE CAUSE FOR APPELLANT IN NO. 9 ON THE ORIGINAL ARGUMENT AND ON
THE REARGUMENT.  WITH HIM ON THE BRIEF ON THE ORIGINAL ARGUMENT WAS
ROBERT K. KILLIAN, ATTORNEY GENERAL.  RICHARD W; BARTON ARGUED THE
CAUSE FOR APPELLANTS IN NO. 33 ON THE ORIGINAL ARGUMENT AND ON THE
REARGUMENT.  WITH HIM ON THE BRIEF ON THE ORIGINAL ARGUMENT WERE
CHARLES T. DUNCAN AND HUBERT B. PAIR.  WILLIAM C. SENNETT, ATTORNEY
GENERAL OF PENNSYLVANIA, ARGUED THE CAUSE FOR APPELLANTS IN NO. 34 ON
THE ORIGINAL ARGUMENT AND ON THE REARGUMENT.  WITH HIM ON THE BRIEF ON
THE REARGUMENT WAS EDGAR R. CASPER, DEPUTY ATTORNEY GENERAL, AND ON THE
ORIGINAL ARGUMENT WERE MR; CASPER AND EDWARD FRIEDMAN. 

ARCHIBALD COX ARGUED THE CAUSE FOR APPELLEES IN ALL THREE CASES ON
THE REARGUMENT.  WITH HIM ON THE BRIEF WERE PETER S. SMITH AND HOWARD
LESNICK.  BRIAN L. HOLLANDER ARGUED THE CAUSE PRO HAC VICE FOR APPELLEE
IN NO. 9 ON THE ORIGINAL ARGUMENT.  WITH HIM ON THE BRIEF WERE NORMAN
DORSEN AND WILLIAM D. GRAHAM.  MR. SMITH ARGUED THE CAUSE FOR APPELLEES
IN NO; 33 ON THE ORIGINAL ARGUMENT.  WITH HIM ON THE BRIEF WERE JOEL J.
RABIN, JONATHAN WEISS, AND JOSEPH F. DUGAN.  THOMAS K. GILHOOL ARGUED
THE CAUSE PRO HAC VICE FOR APPELLEES IN NO. 34 ON THE ORIGINAL
ARGUMENT.  WITH HIM ON THE BRIEF WERE HARVEY N. SCHMIDT, PAUL BENDER,
AND MR. LESNICK. 

LORNA LAWHEAD WILLIAMS, SPECIAL ASSISTANT ATTORNEY GENERAL, ARGUED
THE CAUSE FOR THE STATE OF IOWA AS AMICUS CURIAE IN SUPPORT OF
APPELLANTS IN ALL THREE CASES ON THE ORIGINAL ARGUMENT AND ON THE
REARGUMENT.  WITH HER ON THE BRIEFS ON THE ORIGINAL ARGUMENT WAS
RICHARD C. TURNER, ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE IN SUPPORT OF APPELLANT IN NO. 9 WERE FILED
BY DAVID P. BUCKSON, ATTORNEY GENERAL, AND RUTH M. FERRELL, DEPUTY
ATTORNEY GENERAL, FOR THE STATE OF DELAWARE; BY WILLIAM B. SAXBE,
ATTORNEY GENERAL, WINIFRED A DUNTON, ASSISTANT ATTORNEY GENERAL, AND
CHARLES S. LOPEMAN FOR THE STATE OF OHIO; BY CRAWFORD C. MARTIN,
ATTORNEY GENERAL, NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL, A. J.
CARUBBI, JR., EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND J. C. DAVIS,
JOHN REEVES, AND PAT BAILEY, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE
OF TEXAS; AND BY THOMAS C. LYNCH, ATTORNEY GENERAL, AND ELIZABETH
PALMER, DEPUTY ATTORNEY GENERAL, FOR THE STATE OF CALIFORNIA. 

BRIEFS OF AMICI CURIAE IN SUPPORT OF APPELLEE IN NO. 9 WERE FILED BY
ARTHUR L. SCHIFF FOR BEXAR COUNTY LEGAL AID ASSOCIATION; BY EUGENE M.
SWANN FOR THE LEGAL AID SOCIETY OF ALAMEDA COUNTY; AND BY A. L. WIRIN,
FRED OKRAND, LAURENCE R. SPERBER, AND MELVIN L. WULF FOR THE AMERICAN
CIVIL LIBERTIES UNION ET AL. BRIEF OF AMICUS CURIAE IN SUPPORT OF
APPELLEES IN NO. 33 WAS FILED BY JOHN F. NAGLE FOR THE NATIONAL
FEDERATION OF THE BLIND.  BRIEFS OF AMICI CURIAE IN SUPPORT OF
APPELLEES IN ALL THREE CASES WERE FILED BY J. LEE RANKIN AND STANLEY
BUCHSBAUM FOR THE CITY OF NEW YORK; BY JOSEPH B. ROBISON, CARLOS
ISRAELS, AND CARL RACHLIN FOR THE AMERICAN JEWISH CONGRESS ET AL.; AND
BY CHARLES L. HELLMAN AND LEAH MARKS FOR THE CENTER ON SOCIAL WELFARE
POLICY AND LAW ET AL.
..END :























UNITED STATES V. SKELLY OIL CO., 394 U.S. 678 


       UNITED STATES V. SKELLY OIL CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 TENTH CIRCUIT. 

        NO. 280.  ARGUED JANUARY 15, 1969.-- DECIDED APRIL 21,

           1969. 


RESPONDENT, A NATURAL GAS PRODUCER, IN 1958 REFUNDED $505,536 TO TWO
CUSTOMERS FOR EXCESS AMOUNTS IT HAD COLLECTED DURING THE PREVIOUS SIX
YEARS UNDER A MINIMUM PRICE ORDER WHICH THIS COURT SUBSEQUENTLY
INVALIDATED.  IN ITS TAX RETURNS FOR THOSE YEARS RESPONDENT INCLUDED
THAT SUM IN ITS GROSS INCOME AND IT ALSO INCLUDED THAT AMOUNT IN ITS
"GROSS INCOME FROM THE PROPERTY," WHICH SEC. 613 OF THE INTERNAL
REVENUE CODE OF 1954 MAKES THE BASIS FOR THE 27 1/2% DEPLETION ALLOWED
UPON THE PRODUCTION OF OIL AND NATURAL GAS.  RESPONDENT'S ACTUAL
INCREASE IN TAXABLE INCOME ATTRIBUTABLE TO THE RECEIPTS IN QUESTION WAS
THUS $366,513.  HOWEVER, IN ITS TAX RETURN FOR 1958 RESPONDENT
ATTEMPTED TO DEDUCT THE $505,536, CLAIMING THAT SEC. 1341 PERMITTED IT
TO DEDUCT THE FULL AMOUNT OF THE OVERCHARGES REFUNDED TO RESPONDENT'S
CUSTOMERS.  UNDER THAT SECTION INCOME WHICH A TAXPAYER RECEIVES UNDER A
CLAIM OF RIGHT IS INCLUDED AS GROSS INCOME IN THE YEAR OF RECEIPT AND
UNDER SEC. 1341(A)(4) (ON WHICH RESPONDENT RELIES HERE) A DEDUCTION MAY
BE CLAIMED IN THE YEAR OF REPAYMENT.  SECTION 1341 APPLIES IF (1) "AN
ITEM WAS INCLUDED IN GROSS INCOME FOR A PRIOR TAXABLE YEAR (OR YEARS)"
UNDER A CLAIM OF RIGHT; (2) "A DEDUCTION IS ALLOWABLE FOR THE TAXABLE
YEAR BECAUSE IT WAS ESTABLISHED AFTER THE CLOSE OF SUCH PRIOR TAXABLE
YEAR (OR YEARS) THAT THE TAXPAYER DID NOT HAVE AN UNRESTRICTED RIGHT OF
SUCH ITEM"; AND (3) THE DEDUCTION EXCEEDS $3,000.  THE COMMISSIONER
REDUCED THE AMOUNT OF THE DEDUCTION BY THE 27 1/2% DEPLETION ALLOWANCE
WHICH RESPONDENT HAD TAKEN IN ITS RETURNS FOR THE YEARS 1952-1957. 
RESPONDENT PAID THE DEFICIENCY AND AFTER DISALLOWANCE OF ITS CLAIM
INSTITUTED THIS ACTION FOR A REFUND.  THE DISTRICT COURT UPHELD THE
COMMISSIONER BUT THE COURT OF APPEALS REVERSED.  HELD:  UNDER SEC. 1341
OF THE INTERNAL REVENUE CODE OF 1954 THE DEDUCTION ALLOWABLE IN THE
YEAR OF REPAYMENT MUST BE REDUCED BY THE PERCENTAGE DEPLETION ALLOWANCE
GRANTED RESPONDENT IN THE YEARS OF RECEIPT AS A RESULT OF THE INCLUSION
OF THE LATER-REFUNDED ITEMS IN RESPONDENT'S "GROSS INCOME FROM THE
PROPERTY" IN THOSE YEARS, SINCE CONGRESS DID NOT INTEND TO GIVE
TAXPAYERS, AND THE CODE SHOULD NOT BE INTERPRETED AS ALLOWING, A
DEDUCTION FOR REFUNDING MONEY THAT WAS NOT TAXED WHEN RECEIVED.  PP.
680-687. 

392 F.2D 128, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

DURING ITS TAX YEAR ENDING DECEMBER 31, 1958, RESPONDENT REFUNDED
$505,536.54 TO TWO OF ITS CUSTOMERS FOR OVERCHARGES DURING THE SIX
PRECEDING YEARS.  RESPONDENT, AN OKLAHOMA PRODUCER OF NATURAL GAS, HAD
SET ITS PRICES DURING THE EARLIER YEARS IN ACCORDANCE WITH A MINIMUM
PRICE ORDER OF THE OKLAHOMA CORPORATION COMMISSION.  AFTER THAT ORDER
WAS VACATED AS A RESULT OF A DECISION OF THIS COURT, MICHIGAN WISCONSIN
PIPE LINE CO. V. CORPORATION COMM'N OF OKLAHOMA, 355 U.S. 425 (1958),
RESPONDENT FOUND IT NECESSARY TO SETTLE A NUMBER OF CLAIMS FILED BY ITS
CUSTOMERS; THE REPAYMENTS IN QUESTION REPRESENT SETTLEMENTS OF TWO OF
THOSE CLAIMS.  SINCE RESPONDENT HAD CLAIMED AN UNRESTRICTED RIGHT TO
ITS SALES RECEIPTS DURING THE YEARS 1952 THROUGH 1957, IT HAD INCLUDED
THE $505,536.54 IN ITS GROSS INCOME IN THOSE YEARS.  THE AMOUNT WAS
ALSO INCLUDED IN RESPONDENT'S "GROSS INCOME FROM THE PROPERTY" AS
DEFINED IN SEC. 613 OF THE INTERNAL REVENUE CODE OF 1954, THE SECTION
WHICH ALLOWS TAXPAYERS TO DEDUCT A FIXED PERCENTAGE OF CERTAIN RECEIPTS
TO COMPENSATE FOR THE DEPLETION OF NATURAL RESOURCES FROM WHICH THEY
DERIVE INCOME.  ALLOWABLE PERCENTAGE DEPLETION FOR RECEIPTS FROM OIL
AND GAS WELLS IS FIXED AT 27 1/2% OF THE "GROSS INCOME FROM THE
PROPERTY."  SINCE RESPONDENT CLAIMED AND THE COMMISSIONER ALLOWED
PERCENTAGE DEPLETION DEDUCTIONS DURING THESE YEARS, 27 1/2% OF THE
RECEIPTS IN QUESTION WAS ADDED TO THE DEPLETION ALLOWANCES TO WHICH
RESPONDENT WOULD OTHERWISE HAVE BEEN ENTITLED.  ACCORDINGLY, THE ACTUAL
INCREASE IN RESPONDENT'S TAXABLE INCOME ATTRIBUTABLE TO THE RECEIPTS IN
QUESTION WAS NOT $505,536.54, BUT ONLY $366,513.99.  YET, WHEN
RESPONDENT MADE ITS REFUNDS IN 1958, IT ATTEMPTED TO DEDUCT THE FULL
$505,536.54.  THE COMMISSIONER OBJECTED AND ASSESSED A DEFICIENCY. 
RESPONDENT PAID AND, AFTER ITS CLAIM FOR A REFUND HAD BEEN DISALLOWED,
BEGAN THE PRESENT SUIT.  THE GOVERNMENT WON IN THE DISTRICT COURT, 255
F.SUPP.  228 (D.C.N.D. OKLA. 1966), BUT THE COURT OF APPEALS FOR THE
TENTH CIRCUIT REVERSED, 392 F.2D 128 (1968).  UPON PETITION BY THE
GOVERNMENT, WE GRANTED CERTIORARI, 393 U.S. 820 (1968), TO CONSIDER
WHETHER THE COURT OF APPEALS DECISION HAD ALLOWED RESPONDENT "THE
PRACTICAL EQUIVALENT OF DOUBLE DEDUCTION," CHARLES ILFELD CO. V.
HERNANDEZ, 292 U.S. 62, 68 (1934), IN CONFLICT WITH PAST DECISIONS OF
THIS COURT AND SOUND PRINCIPLES OF TAX LAW.  WE REVERSE. 

        I. 

THE PRESENT PROBLEM IS AN OUTGROWTH OF THE SO-CALLED "CLAIM-OF
RIGHT" DOCTRINE.  MR. JUSTICE BRANDEIS, SPEAKING FOR A UNANIMOUS COURT
IN NORTH AMERICAN OIL CONSOLIDATED V. BURNET, 286 U.S. 417, 424 (1932),
GAVE THAT DOCTRINE ITS CLASSIC FORMULATION.  "IF A TAXPAYER RECEIVES
EARNINGS UNDER A CLAIM OF RIGHT AND WITHOUT RESTRICTION AS TO ITS
DISPOSITION, HE HAS RECEIVED INCOME WHICH HE IS REQUIRED TO RETURN,
EVEN THOUGH IT MAY STILL BE CLAIMED THAT HE IS NOT ENTITLED TO RETAIN
THE MONEY, AND EVEN THOUGH HE MAY STILL BE ADJUDGED LIABLE TO RESTORE
ITS EQUIVALENT."  SHOULD IT LATER APPEAR THAT THE TAXPAYER WAS NOT
ENTITLED TO KEEP THE MONEY, MR. JUSTICE BRANDEIS EXPLAINED, HE WOULD BE
ENTITLED TO A DEDUCTION IN THE YEAR OF REPAYMENT; THE TAXES DUE FOR THE
YEAR OF RECEIPT WOULD NOT BE AFFECTED.  THIS APPROACH WAS DICTATED BY
CONGRESS' ADOPTION OF AN ANNUAL ACCOUNTING SYSTEM AS AN INTEGRAL PART
OF THE TAX CODE.  SEE BURNET V. SANFORD & BROOKS CO., 282 U.S. 359, 365
366 (1931).  OF COURSE, THE TAX BENEFIT FROM THE DEDUCTION IN THE YEAR
OF REPAYMENT MIGHT DIFFER FROM THE INCREASE IN TAXES ATTRIBUTABLE TO
THE RECEIPT; FOR EXAMPLE, TAX RATES MIGHT HAVE CHANGED, OR THE TAXPAYER
MIGHT BE IN A DIFFERENT TAX "BRACKET."  SEE HEALY V. COMMISSIONER, 345
U.S. 278, 284-285 (1953).  BUT AS THE DOCTRINE WAS ORIGINALLY
FORMULATED, THESE DISCREPANCIES WERE ACCEPTED AS AN UNAVOIDABLE
CONSEQUENCE OF THE ANNUAL ACCOUNTING SYSTEM. 

INEQUITIES WHICH CONGRESS FELT EXISTED IN THIS AREA.  /1/  SEE H.R.
REP. NO. 1337, 83D CONG., 2D SESS., 86-87 (1954); S. REP. NO. 1622, 83D
CONG., 2D SESS., 118-119 (1954).  AS AN ALTERNATIVE TO THE DEDUCTION IN
THE YEAR OF REPAYMENT /2/  WHICH PRIOR LAW ALLOWED, SEC. 1341(A)(5)
PERMITS CERTAIN TAXPAYERS TO RECOMPUTE THEIR TAXES FOR THE YEAR OF
RECEIPT.  WHENEVER SEC. 1341 (A)(5) APPLIES, TAXES FOR THE CURRENT YEAR
ARE TO BE REDUCED BY THE AMOUNT TAXES WERE INCREASED IN THE YEAR OR
YEARS OF RECEIPT BECAUSE THE DISPUTED ITEMS WERE INCLUDED IN GROSS
INCOME.  NEVERTHELESS, IT IS CLEAR THAT CONGRESS DID NOT INTEND TO
TAMPER WITH THE UNDERLYING CLAIM-OF-RIGHT DOCTRINE; IT ONLY PROVIDED AN
ALTERNATIVE FOR CERTAIN CASES IN WHICH THE NEW APPROACH FAVORED THE
TAXPAYER.  WHEN THE NEW APPROACH WAS NOT ADVANTAGEOUS TO THE TAXPAYER,
THE OLD LAW WAS TO APPLY UNDER SEC. 1341(A)(4). 

IN THIS CASE, THE PARTIES HAVE STIPULATED THAT SEC. 1341(A)(5) DOES
NOT APPLY.  ACCORDINGLY, AS THE COURTS BELOW RECOGNIZED, RESPONDENT'S
TAXES MUST BE COMPUTED UNDER SEC. 1341(A)(4) AND THUS, IN EFFECT,
WITHOUT REGARD TO THE SPECIAL RELIEF CONGRESS PROVIDED THROUGH THE
ENACTMENT OF SEC. 1341.  NEVERTHELESS, RESPONDENT ARGUES, AND THE COURT
OF APPEALS SEEMS TO HAVE HELD, THAT THE LANGUAGE USED IN SEC. 1341
REQUIRES THAT RESPONDENT BE ALLOWED A DEDUCTION FOR THE FULL AMOUNT IT
REFUNDED TO ITS CUSTOMERS.  WE THINK THE SECTION HAS NO SUCH
SIGNIFICANCE. 

IN DESCRIBING THE SITUATIONS IN WHICH THE SECTION APPLIES, SEC.
1341(A)(2) TALKS OF CASES IN WHICH "A DEDUCTION IS ALLOWABLE FOR THE
TAXABLE YEAR BECAUSE IT WAS ESTABLISHED AFTER THE CLOSE OF (THE YEAR OR
YEARS OF RECEIPT) THAT THE TAXPAYER DID NOT HAVE AN UNRESTRICTED RIGHT
TO SUCH ITEM.  . . "  THE "ITEM" REFERRED TO IS FIRST MENTIONED IN SEC.
1341(A)(1); IT IS THE ITEM INCLUDED IN GROSS INCOME IN THE YEAR OF
RECEIPT.  THE SECTION DOES NOT IMPLY IN ANY WAY THAT THE "DEDUCTION"
AND THE "ITEM" MUST NECESSARILY BE EQUAL IN AMOUNT.  IN FACT, THE USE
OF THE WORDS "A DEDUCTION" AND THE PLACEMENT OF SEC. 1341 IN SUBCHAPTER
Q-- THE SUBCHAPTER DEALING LARGELY WITH SIDE EFFECTS OF THE ANNUAL
ACCOUNTING SYSTEM-- MAKE IT CLEAR THAT IT IS NECESSARY TO REFER TO
OTHER PORTIONS OF THE CODE TO DISCOVER HOW MUCH OF A DEDUCTION IS
ALLOWABLE.  THE REGULATIONS PROMULGATED UNDER THE SECTION MAKE THE
NECESSITY FOR SUCH A CROSS-REFERENCE CLEAR.  TREAS. REG. ON INCOME TAX
(1954 CODE) SEC. 1.1341-1 (26 CFR 1.1341-1).  THEREFORE, WHEN SEC.
1341(A)(4)-- THE SUBSECTION APPLICABLE HERE-- PEAKS OF "THE TAX . . .
COMPUTED WITH SUCH DEDUCTION," IT IS REFERRING TO THE DEDUCTION
MENTIONED IN SEC. 1341(A)(2); AND THAT DEDUCTION MUST BE DETERMINED,
NOT BY ANY MECHANICAL EQUATION WITH THE "ITEM" ORIGINALLY INCLUDED IN
GROSS INCOME, BUT BY REFERENCE TO THE APPLICABLE SECTIONS OF THE CODE
AND THE CASE LAW DEVELOPED UNDER THOSE SECTIONS. 

        II. 

THERE IS SOME DISPUTE BETWEEN THE PARTIES ABOUT WHETHER THE REFUNDS
IN QUESTION ARE DEDUCTIBLE AS LOSSES UNDER SEC. 165 OF THE 1954 CODE OR
AS BUSINESS EXPENSES UNDER SEC. 162.  /3/  ALTHOUGH IN SOME SITUATIONS
THE DISTINCTION MAY HAVE RELEVANCE, CF. EQUITABLE LIFE INS. CO. OF IOWA
V. UNITED STATES, 340 F.2D 9 (C.A. 8TH CIR. 1965), WE DO NOT THINK IT
MAKES ANY DIFFERENCE HERE.  IN EITHER CASE, THE CODE SHOULD NOT BE
INTERPRETED TO ALLOW RESPONDENT "THE PRACTICAL EQUIVALENT OF DOUBLE
DEDUCTION," CHARLES ILFELD CO. V. HERNANDEZ, 292 U.S. 62, 68 (1934),
ABSENT A CLEAR DECLARATION OF INTENT BY CONGRESS.  SEE UNITED STATES V.
LUDEY, 274 U.S. 295 (1927).  ACCORDINGLY, TO AVOID THAT RESULT IN THIS
CASE, THE DEDUCTION ALLOWABLE IN THE YEAR OF REPAYMENT MUST BE REDUCED
BY THE PERCENTAGE DEPLETION ALLOWANCE WHICH RESPONDENT CLAIMED AND THE
COMMISSIONER ALLOWED IN THE YEARS OF RECEIPT AS A RESULT OF THE
INCLUSION OF THE LATER-REFUNDED ITEMS IN RESPONDENT'S "GROSS INCOME
FROM THE PROPERTY" IN THOSE YEARS.  ANY OTHER APPROACH WOULD ALLOW
RESPONDENT A TOTAL OF $1,27 1/2 IN DEDUCTIONS FOR EVERY $1 REFUNDED TO
ITS CUSTOMERS. 

UNDER THE ANNUAL ACCOUNTING SYSTEM DICTATED BY THE CODE, EACH YEAR'S
TAX MUST BE DEFINITIVELY CALCULABLE AT THE END OF THE TAX YEAR.  "IT IS
THE ESSENCE OF ANY SYSTEM OF TAXATION THAT IT SHOULD PRODUCE REVENUE
ASCERTAINABLE, AND PAYABLE TO THE GOVERNMENT, AT REGULAR INTERVALS." 
BURNET V. SANFORD & BROOKS CO., SUPRA, AT 365.  IN CASES ARISING UNDER
THE CLAIM-OF-RIGHT DOCTRINE, THIS EMPHASIS ON THE ANNUAL ACCOUNTING
PERIOD NORMALLY REQUIRES THAT THE TAX CONSEQUENCES OF A RECEIPT SHOULD
NOT DETERMINE THE SIZE OF THE DEDUCTION ALLOWABLE IN THE YEAR OF
REPAYMENT.  THERE IS NO REQUIREMENT THAT THE DEDUCTION SAVE THE
TAXPAYER THE EXACT AMOUNT OF TAXES HE PAID BECAUSE OF THE INCLUSION OF
THE ITEM IN INCOME FOR A PRIOR YEAR.  SEE HEALY V. COMMISSIONER,
SUPRA. 

NEVERTHELESS, THE ANNUAL ACCOUNTING CONCEPT DOES NOT REQUIRE US TO
CLOSE OUR EYES TO WHAT HAPPENED IN PRIOR YEARS.  FOR INSTANCE, IT IS
WELL SETTLED THAT THE PRIOR YEAR MAY BE EXAMINED TO DETERMINE WHETHER
THE REPAYMENT GIVES RISE TO A REGULAR LOSS OR A CAPITAL LOSS. 
ARROWSMITH V. COMMISSIONER, 344 U.S. 6 (1952).  THE RATIONALE FOR THE
ARROWSMITH RULE IS EASY TO SEE; IF MONEY WAS TAXED AT A SPECIAL LOWER
RATE WHEN RECEIVED, THE TAXPAYER WOULD BE ACCORDED AN UNFAIR TAX
WINDFALL IF REPAYMENTS WERE GENERALLY DEDUCTIBLE FROM RECEIPTS TAXABLE
AT THE HIGHER RATE APPLICABLE TO ORDINARY INCOME.  THE COURT IN
ARROWSMITH WAS UNWILLING TO INFER THAT CONGRESS INTENDED SUCH A
RESULT. 

THIS CASE IS REALLY NO DIFFERENT.  /4/  IN ESSENCE, OIL AND GAS
PRODUCERS ARE TAXED ON ONLY 72 1/2% OF THEIR "GROSS INCOME FROM THE
PROPERTY" WHENEVER THEY CLAIM PERCENTAGE DEPLETION.  THE REMAINDER OF
THEIR OIL AND GAS RECEIPTS IS IN REALITY TAX EXEMPT.  WE CANNOT BELIEVE
THAT CONGRESS INTENDED TO GIVE TAXPAYERS A DEDUCTION FOR REFUNDING
MONEY THAT WAS NOT TAXED WHEN RECEIVED.  CF. O'MEARA V. COMMISSIONER, 8
T.C. 622, 634-635 (1947).  ACCORDINGLY, ARROWSMITH TEACHES THAT THE
FULL AMOUNT OF THE REPAYMENT CANNOT, IN THE CIRCUMSTANCES OF THIS CASE,
BE ALLOWED AS A DEDUCTION. 

THIS RESULT DOES NO VIOLENCE TO THE ANNUAL ACCOUNTING SYSTEM.  HERE,
AS IN ARROWSMITH, THE EARLIER RETURNS ARE NOT BEING REOPENED.  AND NO
ATTEMPT IS BEING MADE TO REQUIRE THE TAX SAVINGS FROM THE DEDUCTION TO
EQUAL THE TAX CONSEQUENCES OF THE RECEIPTS IN PRIOR YEARS.  /5/  IN
ADDITION, THE APPROACH HERE ADOPTED WILL AFFECT ONLY A FEW CASES.  THE
PERCENTAGE DEPLETION ALLOWANCE IS QUITE UNUSUAL; UNLIKE MOST OTHER
DEDUCTIONS PROVIDED BY THE CODE, IT ALLOWS A FIXED PORTION OF GROSS
INCOME TO GO UNTAXED.  AS A RESULT, THE DEPLETION ALLOWANCE INCREASES
IN YEARS WHEN DISPUTED AMOUNTS ARE RECEIVED UNDER CLAIM OF RIGHT; THERE
IS NOT CORRESPONDING DECREASE IN THE ALLOWANCE BECAUSE OF LATER
DEDUCTIONS FOR REPAYMENTS.  /6/  THEREFORE, IF A DEDUCTION FOR 100% OF
THE REPAYMENTS WERE ALLOWED, EVERY TIME MONEY IS RECEIVED AND LATER
REPAID THE TAXPAYER WOULD MAKE A PROFIT EQUIVALENT TO THE TAXES ON 27
1/2% OF THE AMOUNT REFUNDED.  IN OTHER SITUATIONS WHEN THE TAXES ON A
RECEIPT DO NOT EQUAL THE TAX BENEFITS OF A REPAYMENT, EITHER THE
TAXPAYER OR THE GOVERNMENT MAY, DEPENDING ON CIRCUMSTANCES, BE THE
BENEFICIARY.  HERE, THE TAXPAYER ALWAYS WINS AND THE GOVERNMENT ALWAYS
LOSES.  WE CANNOT BELIEVE THAT CONGRESS WOULD HAVE INTENDED SUCH AN
INEQUITABLE RESULT. 

THE PARTIES HAVE STIPULATED THAT RESPONDENT IS ENTITLED TO A
JUDGMENT FOR $20,932.64 PLUS STATUTORY INTEREST FOR CLAIMS UNRELATED TO
THE MATTER IN CONTROVERSY HERE; THE DISTRICT COURT ENTERED A JUDGMENT
FOR THAT AMOUNT.  ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS THAT
IT BE RETURNED TO THE DISTRICT COURT FOR RE-ENTRY OF THE ORIGINAL
DISTRICT COURT JUDGMENT. 

              REVERSED AND REMANDED. 

/1/  SECTION 1341(A) PROVIDES: "IF-- 

"(1) AN ITEM WAS INCLUDED IN GROSS INCOME FOR A PRIOR TAXABLE YEAR
(OR YEARS) BECAUSE IT APPEARED THAT THE TAXPAYER HAD AN UNRESTRICTED
RIGHT TO SUCH ITEM; 

"(2) A DEDUCTION IS ALLOWABLE FOR THE TAXABLE YEAR BECAUSE IT WAS
ESTABLISHED AFTER THE CLOSE OF SUCH PRIOR TAXABLE YEAR (OR YEARS) THAT
THE TAXPAYER DID NOT HAVE AN UNRESTRICTED RIGHT TO SUCH ITEM OR TO A
PORTION OF SUCH ITEM; AND 

"(3) THE AMOUNT OF SUCH DEDUCTION EXCEEDS $3,000, "THEN THE TAX
IMPOSED BY THIS CHAPTER FOR THE TAXABLE YEAR SHALL BE THE LESSER OF THE
FOLLOWING: 

"(4) THE TAX FOR THE TAXABLE YEAR COMPUTED WITH SUCH DEDUCTION; OR 

"(5) AN AMOUNT EQUAL TO-- 

"(A) THE TAX FOR THE TAXABLE YEAR COMPUTED WITHOUT SUCH DEDUCTION,
MINUS 

"(B) THE DECREASE IN TAX UNDER THIS CHAPTER (OR THE CORRESPONDING
PROVISIONS OF PRIOR REVENUE LAWS) FOR THE PRIOR TAXABLE YEAR (OR YEARS)
WHICH WOULD RESULT SOLELY FROM THE EXCLUSION OF SUCH ITEM (OR PORTION
THEREOF) FROM GROSS INCOME FOR SUCH PRIOR TAXABLE YEAR (OR YEARS). 
"FOR PURPOSES OF PARAGRAPH (5)(B), THE CORRESPONDING PROVISIONS OF THE
INTERNAL REVENUE CODE OF 1939 SHALL BE CHAPTER 1 OF SUCH CODE (OTHER
THAN SUBCHAPTER E, RELATING TO SELF-EMPLOYMENT INCOME) AND SUBCHAPTER E
OF CHAPTER 2 OF SUCH CODE."     SECTION 1341(B)(2) CONTAINS AN
EXCLUSION COVERING CERTAIN CASES INVOLVING SALES OF STOCK IN TRADE OR
INVENTORY.  HOWEVER, BECAUSE OF SPECIAL TREATMENT GIVEN REFUNDS MADE BY
REGULATED PUBLIC UTILITIES, BOTH PARTIES AGREE THAT SEC. 1341(B)(2) IS
INAPPLICABLE TO THIS CASE AND THAT, ACCORDINGLY, SEC. 1341(A) APPLIES. 

/2/  IN THE CASE OF AN ACCRUAL-BASIS TAXPAYER, THE LEGISLATIVE
HISTORY MAKES IT CLEAR THAT THE DEDUCTION IS ALLOWABLE AT THE PROPER
TIME FOR ACCRUAL.  H.R. REP. NO. 1337, 83D CONG., 2D SESS., A294
(1954); S. REP. NO. 1622, 83D CONG., 2D SESS., 451-452 (1954). 

/3/  THE COMMISSIONER HAS LONG RECOGNIZED THAT A DEDUCTION UNDER
SOME SECTION IS ALLOWABLE.  G.C.M. 16730, XV-1 CUM. BULL.  179 (1936). 

/4/  THE ANALOGY WOULD BE EVEN MORE STRIKING IF IN ARROWSMITH THE
INDIVIDUAL TAXPAYERS HAD NOT UTILIZED THE ALTERNATIVE TAX FOR CAPITAL
GAINS, AS THEY WERE PERMITTED TO DO BY WHAT IS NOW SEC. 1301 OF THE
1954 CODE.  WHERE THE 25% ALTERNATIVE TAX IS NOT USED, INDIVIDUAL
TAXPAYERS ARE TAXED AT ORDINARY RATES ON 50% OF THEIR CAPITAL GAINS. 
SEE SEC. 1202.  IN SUCH A SITUATION, THE RULE OF THE ARROWSMITH CASE
PREVENTS TAXPAYERS FROM DEDUCTING 100% OF AN ITEM REFUNDED WHEN THEY
WERE TAXED ON ONLY 50% OF IT WHEN IT WAS RECEIVED.  ALTHOUGH ARROWSMITH
PREVENTS THIS INEQUITABLE RESULT BY TREATING THE REPAYMENT AS A CAPITAL
LOSS, RATHER THAN BY DISALLOWING 50% OF THE DEDUCTION, THE POLICY
BEHIND THE DECISION IS APPLICABLE IN THIS CASE.  HERE IT WOULD BE
INEQUITABLE TO ALLOW A 100% DEDUCTION WHEN ONLY 72 1/2% WAS TAXED ON
RECEIPT. 

/5/  COMPARE THE ANALOGOUS APPROACH UTILIZED UNDER THE "TAX BENEFIT"
RULE.  ALICE PHELAN SULLIVAN CORP. V. UNITED STATES, 180 CT.CL. 659,
381 F.2D 399 (1967); SEE INTERNAL REVENUE CODE OF 1954 SEC. 111.  IN
KEEPING WITH THE ANALOGY, THE COMMISSIONER HAS INDICATED THAT THE
GOVERNMENT WILL ONLY SEEK TO REDUCE THE DEDUCTION IN THE YEAR OF
REPAYMENT TO THE EXTENT THAT THE DEPLETION ALLOWANCE ATTRIBUTABLE TO
THE RECEIPT DIRECTLY OR INDIRECTLY REDUCED TAXABLE INCOME.  PROPOSED
TREAS. REG. SEC. 1.613-2(C)(8), 33 FED.REG.  10702-10703 (1968). 

/6/  THE 10% STANDARD DEDUCTION MENTIONED IN MR. JUSTICE STEWART'S
DISSENT, POST, AT 697, DIFFERS IN THAT IT ALLOWS AS A DEDUCTION A
PERCENTAGE OF ADJUSTED GROSS INCOME, RATHER THAN OF GROSS INCOME.  SEE
SEC. 141; CF. SECS. 170, 213.  AS A RESULT, REPAYMENTS MAY IN CERTAIN
CASES CAUSE A DECREASE IN THE 10% STANDARD DEDUCTION ALLOWABLE IN THE
YEAR OF REPAYMENT, ASSUMING THAT THE REPAYMENT IS OF THE CHARACTER TO
BE DEDUCTED IN CALCULATING ADJUSTED GROSS INCOME.  SEE SEC. 62. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I SHARE MR. JUSTICE STEWART'S VIEWS AS TO THIS CASE AND ADD ONLY A
WORD. 

IF WE SAT IN CHANCERY REVIEWING TAX CASES, MUCH OF WHAT THE COURT
SAYS WOULD HAVE APPEAL.  BUT WE DO NOT SIT TO DO EQUITY IN TAX CASES;
THAT IS ONE OF CONGRESS' MAIN CONCERNS. 

THE SEARCH FOR EQUITY IN THE TAX LAWS IS WONDROUS AND ELUSIVE.  AS
EDMOND CAHN SAID:  "(THOSE ONLY ARE EQUAL WHOM THE LAW HAS ELECTED TO
EQUALIZE."  E. CAHN, THE SENSE OF INJUSTICE 14 (1949). 

PERCENTAGE DEPLETION HAD ITS ROOTS IN GRANTING A REWARD TO MEN WHO
GO INTO UNDEVELOPED TERRITORY IN SEARCH OF OIL AND GAS.  BUT TODAY IT
IS GRANTED ANYONE WHO HAS AN INTEREST IN OIL OR GAS; THE BENEFICIARY
NEED NOT LIVE THE LIFE OF THE OIL WILDCATTER OR BEAR HIS RISKS TO
OBTAIN THE BENEFITS OF PERCENTAGE DEPLETION. 

WHEN IT COMES TO CAPITAL GAINS WHAT "EQUITIES" ARE TO BE APPLIED? 
IS IT FAIR THAT EARNED INCOME PAY A HEAVIER TAX? 

A SON WHO SPENDS $1,000 ON HIS DESTITUTE FATHER DOES NOT GET THE
SAME TAX BENEFIT AS HE WHO PAYS A LIKE SUM TO HIS ALMA MATER.  LOUIS
EISENSTEIN PURSUES EXAMPLE AFTER EXAMPLE OF SO-CALLED INEQUITIES IN TAX
LAWS IN HIS BOOK THE IDEOLOGIES OF TAXATION (1961).  FOR EXAMPLE, THE
PROFITS ON THE SALE OF UNBRED PIGS ARE TAXABLE AS ORDINARY INCOME,
WHILE THE PROFITS ON THE SALE OF PIGS ONCE BRED ARE TAXABLE AS CAPITAL
GAINS.  ID., 174.  THE SAME IS TRUE OF TURKEYS BUT NOT OF CHICKENS,
EVEN THOUGH "A BRED CHICKEN AND A BRED TURKEY ARE SIMILARLY SITUATED. 
EACH HAS FEATHERS AND TWO LEGS."  IBID. 

TREASURY RECENTLY NOTED NUMEROUS BASIC INEQUITIES RESULTING IN
PREFERRED TAX TREATMENT FOR SOME PEOPLE'S DOLLARS.  TAX REFORM STUDIES
AND PROPOSALS, U.S. TREASURY DEPT., JOINT PUBLICATION OF HOUSE
COMMITTEE ON WAYS AND MEANS AND SENATE COMMITTEE ON FINANCE, 91ST
CONG., 1ST SESS., PT. 1, PP. 13-17 (COMM. PRINT 1969). 

APART FROM CERTAIN ASPECTS OF PERCENTAGE DEPLETION WERE THE REDUCED
TAXATION ON LONG-TERM CAPITAL GAINS AND THE EXCLUSION OF INTEREST ON
STATE AND LOCAL GOVERNMENT BONDS.  THE EXAMPLES ARE LEGION.  THE TAX
REFORM STUDY GIVES AN UNUSUAL EXAMPLE: 

     "AN INDIVIDUAL HAD A TOTAL INCOME OF $1,284,718 OF WHICH

  $1,210,426 WAS IN CAPITAL GAINS, THE REMAINING $74,292 FROM

  WAGES, DIVIDENDS, AND INTEREST.  HE EXCLUDED ONE-HALF OF THIS

  CAPITAL GAINS, WHICH HE IS ALLOWED TO DO UNDER PRESENT LAW

  (ADJUSTED GROSS) INCOME TO $679,405 (AFTER ALLOWING FOR THE $100

  DIVIDEND EXCLUSION).  FROM THIS INCOME HE SUBTRACTED ALL HIS

  PERSONAL DEDUCTIONS, WHICH AMOUNTED TO $676,419 AND WHICH

  INCLUDED $587,693 FOR INTEREST ON FUNDS BORROWED PRESUMABLY FOR

  THE PURPOSE OF PURCHASING THE SECURITIES ON WHICH THE CAPITAL

  GAINS WERE EARNED.  AS A RESULT, AFTER ALLOWING $1,200 OF

  PERSONAL EXEMPTIONS HIS TAXABLE INCOME WAS REDUCED TO $1,786 AND

  HE PAID A TAX OF $274.  HIS OVERALL TAX RATE, THEREFORE, WAS

  ABOUT TWO-HUNDREDTHS OF ONE PERCENT."  ID., AT 15. 

THIS WAS MADE POSSIBLE BY USING A TAXPAYER'S DEDUCTIONS ONLY AGAINST
THAT PART OF HIS INCOME WHICH IS SUBJECT TO THE TAX, IGNORING THE
EXCLUDED PART. 

TAX LAWS ARE INDEED ARBITRARY; THE LINES THEY DRAW ARE THE PRODUCTS
OF PRESSURES INSIDE THE CONGRESS WITH COMPROMISES CARRYING THE DAY. 

THE COURT OF APPEALS HELD THAT THE "ITEM" HERE IN QUESTION WAS
PROPERLY INCLUDED IN "GROSS INCOME" PRIOR TO 1958 AND WAS AN ALLOWABLE
"DEDUCTION" IN 1958 BECAUSE THE TAXPAYER DID NOT HAVE "AN UNRESTRICTED
RIGHT" TO A "PORTION OF SUCH ITEM," AND THAT THE AMOUNT OF SUCH
DEDUCTION EXCEEDS $3,000-- ALL AS PROVIDED IN SEC. 1341.  /1/  SKELLY
OIL CO. V. UNITED STATES, 392 F.2D 128, 131. 

THERE IS NO IRREGULARITY ON THE FACE OF THE RETURN.  THERE IS NO
CONFLICT WITH ANY DECISION OF ANY OTHER COURT OF APPEALS.  WE ARE
ASKED, HOWEVER, TO PUT A GLOSS ON THE STATUTE THAT TREASURY DESIRES.  I
WOULD ADHERE TO THE CONSTRUCTION GIVEN BY THE COURT OF APPEALS LEAVING
TO CONGRESS THE CORRECTION OF ANY INEQUITIES IN THE TAX SCHEME. 

THE CONGRESS MANY YEARS AGO CREATED THE JOINT COMMITTEE ON INTERNAL
REVENUE TAXATION, WHICH IS A STANDING COMMITTEE.  26 U.S.C. 8001-8005,
8021-8023.  ONE OF ITS STATUTORY MANDATES IS "(TO INVESTIGATE THE
OPERATION AND EFFECTS OF THE FEDERAL SYSTEM OF INTERNAL REVENUE
TAXES."  ID., SEC. 8022. 

IN THAT CONNECTION A RECENT REPORT STATES: 

"(THE JOINT COMMITTEE STAFF HAS IN RECENT YEARS BEEN USED AS A
COMMITTEE LIAISON WITH THE TREASURY DEPARTMENT IN WORKING ON TAX
PROPOSALS FOR THE COMMITTEE.  THE STAFF AIDS THE TWO TAX COMMITTEES IN
EXPLAINING PROVISIONS, IN WRITING COMMITTEE REPORTS, AND IN AIDING IN
THE DRAFTING OF BILLS." 

THE JOINT COMMITTEE MAKES REGULAR REPORTS TO CONGRESS FOR REVISION
OF THE TAX LAWS.  INEQUITIES THAT ARISE AS A RESULT OF INTERPRETATIONS
THAT ARE GIVEN EXISTING LAWS EITHER AT THE ADMINISTRATIVE OR JUDICIAL
LEVEL CAN BE QUICKLY CORRECTED BY THIS AGENCY OF OVERSIGHT.  /2/ 

TREASURY UNHAPPILY HAS DEVELOPED THE HABIT OF JOCKEYING IN THE
COURTS, TESTING ONE THEORY AGAINST ANOTHER.  IN CALIFORNIA, IT MAY TAKE
ONE POSITION AND IN MASSACHUSETTS THE OPPOSITE POSITION, THE ISSUE IN
EACH BEING THE SAME.  THE HOPE IS THAT CONFLICTS OVER LITIGIOUS AND
IMPORTANT ISSUES WILL DEVELOP AND THE CASE WILL BE BROUGHT HERE.  /3/ 

IF WE WERE TRAINED IN THE ART AND SCIENCE OF TAXATION, WE MIGHT
SERVE A USEFUL FUNCTION.  BUT TAXATION IS A SPECIALTY IN WHICH WE HAVE
ONLY SPORADIC AND NO CONTINUOUS EXPERIENCE.  IT HAS BEEN SAID THAT ONE
OF OUR DECISIONS IS LIKE A "LIGHTNING BOLT"  THAT "ILLUMINATES ONLY A
VERY SMALL PORTION OF THE LANDSCAPE," LEAVING A DARKNESS THAT LATER
DECISIONS DO NOT REMOVE.  R. PAUL, STUDIES IN FEDERAL TAXATION 249-250
(3D SERIES 1940).  OUR CONTRIBUTIONS, IF SUCH THEY CAN BE CALLED, ARE
DUBIOUS INDEED, FOR THE JOINT COMMITTEE CAN AND DOES REWRITE THE CODE
FREQUENTLY. 

IT IS THEREFORE THE RARE TAX CASE /4/  WE SHOULD CONSIDER, EXCEPT
THE EVEN RARER CONSTITUTIONAL CASE.  THE PRESENT CASE HAS NO
CONSTITUTIONAL OVERTONES; THE TAXPAYER FOLLOWED THE WORDS OF THE LAW
LITERALLY, USING NO NEW OR STRAINED CONSTRUCTION OF WORDS TO FIND A TAX
ADVANTAGE; THERE IS NO CONFLICT BETWEEN THIS CASE AND ANY OTHER
DECISION.  THE SOLICITOR GENERAL ONLY CLAIMS THAT THE RESULT REACHED BY
THE COURT OF APPEALS DOES NOT FIT THE NEAT LOGIC WHICH HE FINDS IN A
GROUP OF RELATED TAX CASES. 

AN ACCOUNT OF THE COST, CONFUSION, AND INEQUITY IN TAX
ADMINISTRATION THAT ENSUES WHILE EVERYONE WAITS FOR A CONFLICT AMONG
THE CIRCUITS (WHICH TAKES AT LEAST 10 YEARS) IS RELATED IN GRISWOLD,
THE NEED FOR A COURT OF TAX APPEALS, 57 HARV.L.REV.  1153 (1944).  THE
ROLE WE PRESENTLY PLAY WAS STATED AS FOLLOWS: 

"OUR PRESENT SYSTEM OF TAX ADJUDICATION INEVITABLY LEAVES NEARLY
EVERY QUESTION UNCERTAIN DURING THE ENTIRE PERIOD WHILE IT MUST BE
DEALT WITH, USUALLY IN THOUSANDS OF INSTANCES, BY THE ADMINISTRATIVE
OFFICERS.  AND YET THAT IS JUST THE PERIOD WHEN THERE SHOULD BE AN
AUTHORITATIVE RULE IF THE SYSTEM IS TO WORK SMOOTHLY, EFFECTIVELY,
SPEEDILY, FAIRLY, AND WITHOUT DISCRIMINATION.  UNDER OUR PRESENT SYSTEM
DELAY AND DISCRIMINATION ARE TYPICAL AND INEVITABLE."  ID., AT 1161. 

IN ABSENCE OF AN UNMISTAKABLY CLEAR CONFLICT AMONG THE CIRCUITS, I
WOULD ABIDE BY THE OPINIONS OF THE COURTS OF APPEALS IN TAX CASES AND
LEAVE TO THE JOINT COMMITTEE WHETHER THE GLOSS WHICH TREASURY NOW TRIES
TO PUT ON THE STATUTE IS OR IS NOT DESIRABLE. 

/1/  SECTION 1341 READS AS FOLLOWS: (A) GENERAL RULE.  IF-- 

"(1) AN ITEM WAS INCLUDED IN GROSS INCOME FOR A PRIOR TAXABLE YEAR (OR
YEARS) BECAUSE IT APPEARED THAT THE TAXPAYER HAD AN UNRESTRICTED RIGHT
TO SUCH ITEM; 

"(2) A DEDUCTION IS ALLOWABLE FOR THE TAXABLE YEAR BECAUSE IT WAS
ESTABLISHED AFTER THE CLOSE OF SUCH PRIOR TAXABLE YEAR (OR YEARS) THAT
THE TAXPAYER DID NOT HAVE AN UNRESTRICTED RIGHT TO SUCH ITEM OR TO A
PORTION OF SUCH ITEM; AND 

"(3) THE AMOUNT OF SUCH DEDUCTION EXCEEDS $3,000, "THEN THE TAX
IMPOSED BY THIS CHAPTER FOR THE TAXABLE YEAR SHALL BE THE LESSER OF THE
FOLLOWING: 

"(4) THE TAX FOR THE TAXABLE YEAR COMPUTED WITH SUCH DEDUCTION; OR 

"(5) AN AMOUNT EQUAL TO-- 

"(A) THE TAX FOR THE TAXABLE YEAR COMPUTED WITHOUT SUCH DEDUCTION,
MINUS 

"(B) THE DECREASE IN TAX . . . FOR THE PRIOR TAXABLE YEAR . . .
WHICH WOULD RESULT SOLELY FROM THE EXCLUSION OF SUCH ITEM . . . FROM
GROSS INCOME FOR SUCH PRIOR TAXABLE YEAR.  . . . " 

/2/  PERHAPS THE MOST EGREGIOUS ERROR THAT WE MADE IN MY TIME (ONE
FOR WHICH I TAKE PARTIAL BLAME), WAS HELVERING V. HALLOCK, 309 U.S.
106, AN OPINION FOR THE COURT, WRITTEN BY MR. JUSTICE FRANKFURTER THAT
OVERRULED HELVERING V. ST. LOUIS TRUST CO., 296 U.S. 39, AND BECKER V.
ST. LOUIS TRUST CO., 296 U.S. 48.  THIS IS ONE CLASSIC EXAMPLE OF THE
TYPE OF PROBLEM WHICH SHOULD BE LEFT TO THE JOINT COMMITTEE. 

/3/  FOR A CLASSIC EXAMPLE SEE R. PAUL, STUDIES IN FEDERAL TAXATION
449-450 (3D SERIES 1940). 

/4/  THE VALIDITY OF REGULATIONS AND THE EFFECT OF RE-ENACTMENT OF A
STATUTORY PROVISION ON THEM PRESENT DISTINCT QUESTIONS.  HELVERING V.
WILSHIRE OIL CO., 308 U.S. 90; COMMISSIONER V. SOUTH TEXAS CO., 333
U.S. 496; COMMISSIONER V. STIDGER, 386 U.S. 287. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

THE COURT TODAY DENIES THE RESPONDENT A TAX BENEFIT FAIRLY PROVIDED
BY THE CODE FOR NO OTHER DISCERNIBLE REASONS THAN THAT, UNDER THE
STATUTE AS WRITTEN, "THE TAXPAYER ALWAYS WINS AND THE GOVERNMENT ALWAYS
LOSES,"  /1/  AND THAT "THE APPROACH HERE ADOPTED WILL AFFECT ONLY A
FEW CASES."  ANTE, AT 686.  BUT WE ARE NOT FREE, EVEN IN A FEW CASES,
TO ABANDON SETTLED PRINCIPLES OF ANNUAL ACCOUNTING AND STATUTORY
CONSTRUCTION MERELY TO AVOID WHAT THE COURT THINKS CONGRESS MIGHT
CONSIDER AN "INEQUITABLE RESULT."  /2/ 

"(THE RULE THAT GENERAL EQUITABLE CONSIDERATIONS DO NOT CONTROL THE
MEASURE OF DEDUCTIONS OR TAX BENEFITS CUTS BOTH WAYS.  IT IS AS
APPLICABLE TO THE GOVERNMENT AS TO THE TAXPAYER.  CONGRESS MAY BE
STRICT OR LAVISH IN ITS ALLOWANCE OF DEDUCTIONS OR TAX BENEFITS.  THE
FORMULA IT WRITES MAY BE ARBITRARY AND HARSH IN ITS APPLICATIONS.  BUT
WHERE THE BENEFIT CLAIMED BY THE TAXPAYER IS FAIRLY WITHIN THE
STATUTORY LANGUAGE AND THE CONSTRUCTION SOUGHT IS IN HARMONY WITH THE
STATUTE AS AN ORGANIZE WHOLE, THE BENEFITS WILL

NOT BE WITHHELD FROM THE TAXPAYER THOUGH THEY REPRESENT AN
UNEXPECTED WINDFALL."  LEWYT

  CORP. V. COMMISSIONER, 349 U.S. 237, 240. 

FROM ANY NATURAL READING OF SEC. 1341, IT IS APPARENT THAT CONGRESS
BELIEVED THE "DEDUCTION" IN SEC. 1341(A)(2) WOULD BE IN THE AMOUNT OF
THE "ITEM" DESCRIBED IN SEC. 1341(A)(1).  IF THAT UNDERSTANDING IS NOT
MANIFEST FROM THE FACE OF THE STATUTE AND THE LEGISLATIVE HISTORY, /3/
IT IS THE UNAVOIDABLE INFERENCE FROM A STUDY OF THE PRE-1954 LAW WHICH
THE COURT CONCEDES SEC. 1341(A)(4) WAS INTENDED TO CODIFY.  IN EVERY
CASE IN THIS AREA PREVIOUSLY DECIDED BY THE COURT THE AMOUNT DEDUCTIBLE
IN THE YEAR OF REPAYMENT WAS CONSIDERED TO BE EXACTLY THE SAME AS THE
AMOUNT OF THE PREVIOUSLY INCLUDED ITEM.  IN TWO OF THE CASES MOST
SHARPLY IN CONGRESSIONAL FOCUS IN 1954, THE GOVERNMENT HAD CONCEDED
WITHOUT HESITATION THAT THE TAXPAYERS WERE "ENTITLED TO A DEDUCTION FOR
A LOSS IN THE YEAR OF REPAYMENT OF THE AMOUNT EARLIER INCLUDED IN
INCOME."  HEALY V. COMMISSIONER, 345 U.S. 278, 284.  SEE ALSO UNITED
STATES V. LEWIS, 340 U.S. 590, 591.  THAT HAS BEEN THE EXPRESS POSITION
OF THE TREASURY SINCE AT LEAST 1936, /4/  AND THE COURT TODAY HAS NOT
CITED A SINGLE INSTANCE OF DEVIATION FROM THAT UNDERSTANDING.     THE
COURT SAYS THAT SEC. 1341 IS NOT ALONE CONTROLLING AND THAT "IT IS
NECESSARY TO REFER TO OTHER PORTIONS OF THE CODE TO DISCOVER HOW MUCH
OF A DEDUCTION IS ALLOWABLE."  ANTE, AT 683.  I AGREE THAT SEC. 1341
MUST BE CONSIDERED IN THE CONTEXT OF THE INTERNAL REVENUE CODE AS AN
"ORGANIC WHOLE."  BUT NO OTHER PROVISIONS OF THE CODE IN ANY MANNER
BOLSTER THE COURT'S ARGUMENT.  THE COURT ASSUMES, QUITE CORRECTLY, THAT
EITHER SEC. 162 OR SEC. 165 DOES PERMIT A DEDUCTION FOR THE REFUND. 
BUT IT DOES NOT, AND CANNOT, SUGGEST THAT EITHER OF THOSE SECTIONS-- OR
ANY OTHER STATUTORY PROVISION-- LIMITS THE AMOUNT OF THE DEDUCTION FOR
THE UNDENIABLE LOSS OF PROFITS IN THE FULL AMOUNT OF THE REPAYMENT. 
INSTEAD THE COURT ASSUMES A BROAD EQUITABLE AUTHORITY TO WEED OUT TAX
BENEFITS WHICH IT CALLS "DOUBLE DEDUCTIONS"-- A CHARACTERIZATION WHOLLY
INAPPOSITE TO THE FACTS OF THIS CASE. 

IN PRIOR DECISIONS DISALLOWING WHAT TRULY WERE "DOUBLE DEDUCTIONS,"
THE COURT HAS RELIED ON EVIDENT STATUTORY INDICATIONS, NOT JUST ITS OWN
VIEW OF THE EQUITIES, THAT CONGRESS INTENDED TO PRECLUDE THE SECOND
DEDUCTION.  IN THOSE CASES THE TAXPAYERS SOUGHT TO BENEFIT TWICE FROM
THE SAME STATUTORY DEDUCTION.  /5/  IN THIS CASE, BY CONTRAST, THE
RESPONDENT HAS TAKEN TWO DIFFERENT DEDUCTIONS ACCORDED BY CONGRESS FOR
DISTINCT PURPOSES.  IN THE YEARS 1952 THROUGH 1957 IT DEDUCTED THE
PROPER AMOUNTS FOR DEPLETION-- A DEDUCTION WHICH IS ALLOWED BY CONGRESS
"ON THE THEORY THAT THE EXTRACTION OF MINERALS GRADUALLY EXHAUSTS THE
CAPITAL INVESTMENT IN THE MINERAL DEPOSIT," AND WHICH IS "DESIGNED TO
PERMIT A RECOUPMENT OF THE OWNER'S CAPITAL INVESTMENT IN THE MINERALS
SO THAT WHEN THE MINERALS ARE EXHAUSTED, THE OWNER'S CAPITAL IS
UNIMPAIRED."  COMMISSIONER V. SOUTHWEST EXPLORATION CO., 350 U.S. 308,
312.  THE RESPONDENT'S 1958 DEDUCTION WAS GRANTED BY CONGRESS FOR THE
ENTIRELY DIFFERENT REASON THAT THE REFUND OF PREVIOUSLY REPORTED INCOME
CONSTITUTED A LOSS, OR BUSINESS EXPENSE.  IN PURPOSE AND EFFECT THE
DEDUCTIONS ARE WHOLLY UNRELATED, AND EACH IS SUSTAINABLE ON ITS OWN
MERITS.  CERTAINLY IT CANNOT BE SAID EITHER THAT THE RESPONDENT DID NOT
IN FACT EXHAUST THE CAPITAL ASSETS FOR WHICH THE DEDUCTIONS WERE
ALLOWED IN 1952 THROUGH 1957 OR THAT IT DID NOT SUFFER A BUSINESS LOSS
BY THE 1958 REPAYMENT. 

THE SOLE NEXUS BETWEEN THESE DISTINCT TRANSACTIONS ON WHICH THE
COURT CONSTRUCTS ITS "DOUBLE DEDUCTION" THEORY IS THAT THE DEPLETION
DEDUCTIONS WERE COMPUTED AS A PERCENTAGE OF GROSS INCOME FROM THE
PROPERTY.  BUT THIS FACT CANNOT DISTINGUISH PERCENTAGE DEPLETION FROM
ANY OTHER DEDUCTION.  IF THE RESPONDENT HAD ELECTED TO TAKE COST
DEPLETION IN 1952 THROUGH 1957, FOR EXAMPLE, THERE WOULD ALSO HAVE BEEN
A PORTION OF THE GROSS INCOME IN THOSE YEARS-- PERHAPS LESS THAN 27
1/2%, PERHAPS MORE-- WHICH WAS NOT INCLUDED IN TAXABLE INCOME.  WHETHER
A DEDUCTION IS COMPUTED AS A FIXED PERCENTAGE OF INCOME OR IN SOME
OTHER MANNER, IT ALWAYS REDUCES BY SOME PERCENTAGE THE INCOME WHICH IS
ULTIMATELY TAXED.  THERE ARE OTHER DEDUCTIONS, OF COURSE, WHOSE AMOUNT
IS A FUNCTION OF A CERTAIN PERCENTAGE OF THE TAXPAYER'S INCOME.  WITH
RESPECT TO THE INDIVIDUAL TAXPAYER, THE STANDARD 10% DEDUCTION, SEC.
141, AND THOSE FOR CHARITABLE CONTRIBUTIONS, SEC. 170, AND MEDICAL
EXPENSES, SEC. 213, ARE DOUBTLESS THE MOST FREQUENT.  UNDER THE COURT'S
RULING TODAY, ANY TAXPAYER WHO REPAYS MONEY INCLUDED IN GROSS INCOME IN
A PRIOR YEAR IN WHICH HE ALSO TOOK ONE OF THE ABOVE MENTIONED
DEDUCTIONS WILL HAVE TO REDUCE HIS REFUND DEDUCTION BY THAT PORTION OF
THE PREVIOUS YEAR'S DEDUCTION ATTRIBUTABLE TO THE INCLUDED INCOME. 
SURELY THIS RESULT CONTRAVENES THE PURPOSE OF THE ANNUAL ACCOUNTING
CONCEPT TO PREVENT RECOMPUTATIONS OF THE PRIOR YEAR'S TAX. 

THE COURT SAYS TODAY THAT THERE CAN BE NO DEDUCTION "FOR REFUNDING
MONEY THAT WAS NOT TAXED WHEN RECEIVED."  ANTE, AT 685.  THIS MEANS
NOTHING LESS THAN THAT, WHENEVER A TAXPAYER SEEKS TO DEDUCT A REFUND OF
MONEY RECEIVED AS INCOME UNDER A CLAIM OF RIGHT IN A PRIOR YEAR, THE
DEDUCTION MUST BE REDUCED BY THE PERCENTAGE OF GROSS INCOME IN THAT
PRIOR YEAR WHICH, FOR WHATEVER REASON, WAS NOT ALSO TAXABLE INCOME. 
OTHERWISE THERE WILL BE PRECISELY THE SAME KIND OF SO-CALLED "DOUBLE
DEDUCTION" AS THE COURT FINDS IN THIS CASE. 

IT IS CLEAR THAT THE COURT HAS WROUGHT A MAJOR TRANSFORMATION OF THE
DEDUCTION WHICH HAS HERETOFORE BEEN ALLOWED AND WHICH CONGRESS
RECOGNIZED IN SEC. 1341(A)(4).  THAT DEDUCTION IS PERMITTED BECAUSE, IN
THE WORDS OF SEC. 1341, THE ITEM "WAS INCLUDED IN GROSS INCOME FOR A
PRIOR TAXABLE YEAR", NOT BECAUSE IT WAS INCLUDED IN TAXABLE INCOME.  IT
IS NO ANSWER TO SAY THAT THE "ANNUAL ACCOUNTING CONCEPT DOES NOT
REQUIRE US TO CLOSE OUR EYES TO WHAT HAPPENED IN PRIOR YEARS."  ANTE,
AT 684.  OF COURSE WE MUST LOOK TO THE PRIOR YEARS TO ASCERTAIN THE
AMOUNTS INCLUDED IN GROSS INCOME AND THE NATURE OF THAT INCOME AS IT
BEARS ON THE PROVISION UNDER WHICH IT IS DEDUCTIBLE IN THE YEAR OF
REPAYMENT.  ARROWSMITH V. COMMISSIONER, 344 U.S. 6.  /6/  BUT THE VERY
PURPOSE OF THE ANNUAL ACCOUNTING CONCEPT IS TO PRECLUDE ADJUSTMENTS IN
THE AMOUNT OF THE DEDUCTION TO REFLECT THE TAX CONSEQUENCES OF THE
ITEM'S INCLUSION IN THE PRIOR YEAR. 

"CONGRESS HAS ENACTED AN ANNUAL ACCOUNTING SYSTEM UNDER WHICH INCOME
IS COUNTED UP AT THE END OF EACH YEAR.  IT WOULD BE DISRUPTIVE OF AN
ORDERLY COLLECTION OF THE REVENUE TO RULE THAT THE ACCOUNTING MUST BE
DONE OVER AGAIN TO REFLECT EVENTS OCCURRING AFTER THE YEAR FOR WHICH
THE ACCOUNTING IS MADE, AND WOULD VIOLATE THE SPIRIT OF THE ANNUAL
ACCOUNTING SYSTEM.  THIS BASIC PRINCIPLE CANNOT BE CHANGED SIMPLY
BECAUSE IT IS OF ADVANTAGE TO A TAXPAYER OR TO THE GOVERNMENT IN A
PARTICULAR CASE THAT A DIFFERENT RULE BE FOLLOWED."  HEALY V.
COMMISSIONER, 345 U.S. 278, 284-285. 

ONE OF THE MAJOR FACTORS, IN ADDITION TO CHANGES IN TAX RATES AND
BRACKETS, THAT DETERMINE WHO WILL BENEFIT FROM ADHERENCE TO THE ANNUAL
ACCOUNTING PRINCIPLES EMBODIED IN SEC. 1341(A)(4) IS THE EXTENT TO
WHICH THE TAXPAYER HAD DEDUCTIONS IN THE PRIOR OR SUBSEQUENT TAXABLE
YEARS TO OFFSET GROSS INCOME.  AND IT IS NO LESS INCONSISTENT WITH
ANNUAL ACCOUNTING PRINCIPLES TO PARE DOWN THE ALLOWABLE LOSS DEDUCTION
IN THE YEAR OF REPAYMENT BECAUSE OF OTHER DEDUCTIONS IN THE YEAR OF
INCLUSION THAN BECAUSE OF A LOWER TAX RATE OR BRACKET IN THAT YEAR. 

BECAUSE I CANNOT AGREE THAT THE COURT'S EQUITABLE SENSIBILITIES
EMPOWER IT TO DEPART FROM THE SOUND PRINCIPLES OF TAX ACCOUNTING
SPECIFICALLY ENDORSED BY CONGRESS IN SEC. 1341, I RESPECTFULLY
DISSENT. 

/1/  SECTION 1341, OF COURSE, IS DESIGNED PRECISELY TO CREATE A
SITUATION WHERE "THE TAXPAYER ALWAYS WINS AND THE GOVERNMENT ALWAYS
LOSES."  STRICT ADHERENCE TO ANNUAL ACCOUNTING AND THE CLAIM-OF-RIGHT
DOCTRINE BEFORE 1954 SOMETIMES BENEFITED THE TAXPAYER, SOMETIMES THE
GOVERNMENT.  SECTION 1341 RETAINS THOSE PRINCIPLES WHERE THEY BENEFIT
THE TAXPAYER BUT ALLOWS RECOMPUTATION OF THE TAXES OF A PRIOR YEAR IF
THAT METHOD WOULD RESULT IN A GREATER TAX SAVING. 

/2/  JUDICIAL ASSUMPTIONS THAT CONGRESS DID NOT INTEND LIBERAL
BENEFITS FOR TAXPAYERS ARE PARTICULARLY SUSPECT IN THE AREA OF
PERCENTAGE DEPLETION, PERHAPS THE MOST GENEROUS BUSINESS DEDUCTION IN
THE CODE.  AND CONGRESS HAD THE RECIPIENTS OF PERCENTAGE DEPLETION
SPECIFICALLY IN MIND WHEN IT DRAFTED SEC. 1341.  THE HOUSE BILL
EXCLUDED FROM THE COVERAGE OF SEC. 1341 ALL REFUNDS RELATING TO
INVENTORY SALES.  THE SENATE COMMITTEE PROMPTLY REMOVED REFUNDS BY
REGULATED UTILITIES FROM THIS EXCLUSION WITH THE FOLLOWING REMARKS: 

"YOUR COMMITTEE'S BILL PROVIDES THAT THE EXCLUSION OF REFUNDS
PERTAINING TO INVENTORY SALES WILL NOT EXCLUDE FROM THE BENEFITS OF
THIS SECTION REFUNDS MADE BY A REGULATED PUBLIC UTILITY WHERE THE
REFUNDS ARE REQUIRED TO BE MADE BY THE REGULATORY BODY, SUCH AS THE
FEDERAL POWER COMMISSION.  IT IS MADE CLEAR, FOR EXAMPLE, THAT REFUNDS
OF CHARGES FOR THE SALE OF NATURAL GAS UNDER RATES APPROVED TEMPORARILY
WOULD BE ELIGIBLE FOR THE BENEFITS OF THIS SECTION."  S. REP. NO. 1622,
83D CONG., 2D SESS., 118 (1954). 

/3/ THE HOUSE AND SENATE REPORTS GIVE NO INDICATION THAT CONGRESS
THOUGHT THE DEDUCTION WOULD BE OTHER THAN THE AMOUNT OF THE ITEM
INCLUDED IN GROSS INCOME FOR THE PRIOR YEAR.  THEY REFER TO THE AMOUNT
OF THE DEDUCTION AND OF THE ITEM INTERCHANGEABLY. 

"IF THE TAXPAYER INCLUDED AN ITEM IN GROSS INCOME IN ONE TAXABLE
YEAR, AND IN A SUBSEQUENT TAXABLE YEAR HE BECOMES ENTITLED TO A
DEDUCTION BECAUSE THE ITEM OR A PORTION THEREOF IS NO LONGER SUBJECT TO
HIS UNRESTRICTED USE, AND THE AMOUNT OF THE DEDUCTION IS IN EXCESS OF
$3,000, THE TAX FOR THE SUBSEQUENT YEAR IS REDUCED BY EITHER THE TAX
ATTRIBUTABLE TO THE DEDUCTION OR THE DECREASE IN THE TAX FOR THE PRIOR
YEAR ATTRIBUTABLE TO THE REMOVAL OF THE ITEM, WHICHEVER IS GREATER. 
UNDER THE RULE OF THE LEWIS CASE (340 U.S. 590 (1951), THE TAXPAYER IS
ENTITLED TO A DEDUCTION ONLY IN THE YEAR OF REPAYMENT. 

"IN THE CASE OF A CASH-BASIS TAXPAYER, IN ORDER TO BE ENTITLED TO A
DEDUCTION IN THE LATER YEAR, THE AMOUNT MUST BE REPAID.  HOWEVER, IN
THE CASE OF AN ACCRUAL-BASIS TAXPAYER, IF THE ITEM WAS ACCRUED BUT
NEVER RECEIVED, THE SECTION APPLIES WHEN THE DEDUCTION ACCRUES IN THE
LATER YEAR ALTHOUGH THERE IS, OF COURSE, NO AMOUNT TO BE REPAID."  S.
REP. NO. 1622, SUPRA, N. 2, AT 451.  SEE ALSO H.R. REP. NO. 1337, 83D
CONG., 2D SESS, A294 (1954). 

/4/  SEE G.C.M. 16730, XV-1 CUM.BULL.  179, 181 (1936): 

"IN THE INSTANT CASE THE TAXPAYER RECEIVED THE INCOME UNDER A CLAIM
OF RIGHT AND WITHOUT RESTRICTION AS TO ITS DISPOSITION.  ON AUTHORITY
OF THE CASES CITED HEREIN, THIS OFFICE IS OF THE OPINION THAT THE
PROFITS IN QUESTION SHOULD NOT BE ELIMINATED FROM THE TAXPAYER'S GROSS
INCOME FOR THE YEARS 1928 AND 1929 (THE YEARS OF INCLUSION), BUT THAT
THE TAXPAYER IS ENTITLED TO A DEDUCTION, FOR THE YEAR IN WHICH PAID, OF
THE AMOUNT OF THE PROFITS PAID.  . . . " SEE ALSO 2 J.MERTENS, LAW OF
FEDERAL INCOME TAXATION 12.106A, P. 431 (P. ZIMET & J. STANLEY REV. ED.
1967). 

/5/  CHARLES ILFELD CO. V. HERNANDEZ, 292 U.S. 62, AND UNITED STATES
V. LUDEY, 274 U.S. 295, BOTH INVOLVED SITUATIONS IN WHICH THE TAXPAYER
TRIED TO TAKE THE SAME DEDUCTION TWICE.  IN ILFELD THE TAXPAYER HAD
TAKEN DEDUCTIONS, THROUGH CONSOLIDATED RETURNS, FOR THE ANNUAL LOSSES
OF ITS SUBSIDIARIES; WHEN THE SUBSIDIARIES' ASSETS WERE SOLD AND THE
COMPANIES DISSOLVED, THE PARENT TAXPAYER SOUGHT TO TAKE DEDUCTIONS FOR
LOSSES OF ITS INVESTMENT IN THE SUBSIDIARIES.  AS THE COURT HELD, "(THE
ALLOWANCE CLAIMED WOULD PERMIT (THE PARENT) TWICE TO USE THE
SUBSIDIARIES' LOSSES FOR THE REDUCTION OF ITS TAXABLE INCOME," A DOUBLE
DEDUCTION THAT "NOTHING IN THE ACT . . . PURPORTS TO AUTHORIZE.  . . .
"  292 U.S.,AT 68.  IN LUDEY THE TAXPAYER HAD TAKEN DEDUCTIONS FOR
DEPLETION OF HIS MINING PROPERTIES; BUT WHEN THE PROPERTIES WERE SOLD
IN THE TAXABLE YEAR IN QUESTION, THE TAXPAYER DID NOT, IN COMPUTING THE
GAIN FROM THE SALE, ADJUST THE BASIS OF THE PROPERTY TO REFLECT THE
DEPLETION DEDUCTIONS.  THE COURT HELD THAT DEPLETION ALLOWANCES, LIKE
THOSE FOR DEPRECIATION, ARE GRANTED IN RECOGNITION OF THE FACT THAT THE
ASSET IS DISAPPEARING YEAR BY YEAR.  WHEN IT IS DISPOSED OF, THEREFORE,
"THE THING THEN SOLD IS NOT THE WHOLE THING ORIGINALLY ACQUIRED.  THE
AMOUNT OF THE DEPRECIATION MUST BE DEDUCTED FROM THE ORIGINAL COST OF
THE WHOLE IN ORDER TO DETERMINE THE COST OF THAT DISPOSED OF IN THE
FINAL SALE OF PROPERTIES.  ANY OTHER CONSTRUCTION WOULD PERMIT A DOUBLE
DEDUCTION FOR THE LOSS OF THE SAME CAPITAL ASSETS."  274 U.S.,AT 301. 

/6/  AS THE COURT RECOGNIZES, ANTE, AT 685, N. 4, THE COURT IN
ARROWSMITH DID NOT HOLD THAT THE AMOUNT OF THE DEDUCTION IN THE YEAR OF
REPAYMENT WOULD BE REDUCED BECAUSE IN THE YEAR OF INCLUSION THE MONEY
HAD BEEN TAXED AT A LOWER RATE OR HAD BEEN OFFSET BY DEDUCTIONS.  IT
HELD MERELY THAT THE LOSSES FELL WITHIN THE DEFINITION OF "CAPITAL
LOSSES" CONTAINED IN THE SECTIONS AUTHORIZING DEDUCTIONS FOR THE
REPAYMENT.  THE COURT DOES NOT IN THIS CASE POINT TO ANY COMPARABLE
STATUTORY PROVISION AFFECTING THE NATURE OR AMOUNT OF THE DEDUCTION FOR
THE REFUND. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL ROGOVIN, HARRIS
WEINSTEIN, MYRON C. BAUM, AND LORING W. POST. 

ROBERT L. CASEY ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE THOMAS E. TYRE, JOHN A. CRAIG, AND THOMAS J. MCCOY, JR.
..END :



















NORFOLK MONUMENT V. WOODLAWN, 394 U.S. 700 


       NORFOLK MONUMENT CO., INC. V. WOODLAWN MEMORIAL GARDENS,

           INC., ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

        NO. 1040.  DECIDED APRIL 21, 1969. 


PETITIONER, A RETAILER OF BURIAL MONUMENTS AND BRONZE GRAVE MARKERS,
BROUGHT SUIT FOR DAMAGES AND INJUCTIVE RELIEF UNDER SECS. 4 AND 16 OF
THE CLAYTON ACT, ALLEGING THAT RESPONDENTS HAD VIOLATED SECS. 1 AND 2
OF THE SHERMAN ACT BY CONSPIRING TO MONOPOLIZE AND MONOPOLIZING THE
MANUFACTURE AND SALE OF BRONZE GRAVE MARKERS.  AFTER EXTENSIVE PRETRIAL
DISCOVERY RESPONDENTS' MOTION FOR SUMMARY JUDGMENT WAS GRANTED, THE
DISTRICT COURT CONCLUDING THAT THERE WAS NO MATERIAL ISSUE OF FACT AND
NO EVIDENCE OF CONSPIRACY.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE
ALLEGED CONSPIRACY HAD NOT BEEN CONCLUSIVELY DISPROVED BY PRETRIAL
DISCOVERY AND THERE REMAINED MATERIAL ISSUES OF FACT WHICH COULD ONLY
BE RESOLVED BY A JURY AFTER A PLENARY TRIAL.  "(SUMMARY PROCEDURES
SHOULD BE USED SPARINGLY IN COMPLEX ANTITRUST LITIGATION WHERE MOTIVE
AND INTENT PLAY LEADING ROLES.  . . . "  POLLER V. COLUMBIA
BROADCASTING SYSTEM, 368 U.S. 464, 473. 

CERTIORARI GRANTED; 404 F.2D 1008, REVERSED. 

PER CURIAM. 

THE PETITIONER, A RETAILER OF BURIAL MONUMENTS AND BRONZE GRAVE
MARKERS, BROUGHT THIS ACTION FOR DAMAGES AND INJUNCTIVE RELIEF UNDER
SECS. 4 AND 16 OF THE CLAYTON ACT, 38 STAT. 731, 737, AS AMENDED, 15
U.S.C. 15, 26, ALLEGING THAT THE RESPONDENTS HAD VIOLATED SECS. 1 AND 2
OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. 1, 2, BY
CONSPIRING TO MONOPOLIZE AND MONOPOLIZING THE MANUFACTURE AND SALE OF
BRONZE GRAVE MARKERS.  THE RESPONDENTS-- MATTHEWS, A MANUFACTURER OF
SUCH MARKERS, AND FIVE OPERATORS OF CEMETERIES (CALLED "MEMORIAL
PARKS") THAT SELL THE MARKERS-- WERE CHARGED WITH HAVING JOINTLY
ADOPTED VARIOUS RESTRICTIVE DEVICES TO PREVENT, RESTRICT, AND
DISCOURAGE SALES OF MARKERS BY THE PETITIONER FOR INSTALLATION IN THE
CEMETERIES.  AFTER EXTENSIVE PRETRIAL DISCOVERY, THE DISTRICT COURT
GRANTED THE RESPONDENTS' MOTION FOR SUMMARY JUDGMENT, CONCLUDING THAT
THERE WAS NO MATERIAL ISSUE OF FACT AND NO EVIDENCE OF CONSPIRACY.  290
F.WUPP.  1.  THE COURT OF APPEALS AFFIRMED.  404 F.2D 1008. 

WE CANNOT AGREE THAT ON THE RECORD BEFORE THE DISTRICT COURT A JURY
COULD NOT HAVE FOUND THAT THE RESPONDENTS HAD CONSPIRED TO EXCLUDE THE
PETITIONER FROM AND MONOPOLIZE THE MARKET FOR BRONZE GRAVE MARKERS.  AS
CIRCUIT JUDGE CRAVEN POINTED OUT IN HIS DISSENTING OPINION, THE RECORD
DISCLOSED THE FOLLOWING CONDUCT ON THE PART OF THE RESPONDENTS: 

   "(1) DESPITE THE UNSKILLED NATURE OF THE WORK, ALL OF THE

  MEMORIAL PARKS REFUSE TO PERMIT THE PLAINTIFF TO INSTALL MARKERS

  SOLD BY IT; ALL OF THEM INSIST THAT THE WORK BE DONE BY THE

  CEMETERIES THEMSELVES. 

     "(2) NONE OF THE MEMORIAL PARKS CHARGES LOT OWNERS A SEPARATE

  INSTALLATION FEE IN THE CASE OF MARKERS PURCHASED FROM THE

CEMETERIES. 

     "(3) ALL OF THE MEMORIAL PARKS REQUIRE THE PAYMENT OF AN

  INSTALLATION FEE BY THE PLAINTIFF FOR INSTALLING MARKERS

  PURCHASED FROM THE PLAINTIFF.  THE PLAINTIFF PLAUSIBLY MAINTAINS

  THAT THE ACTUAL COST OF INSTALLATION COMES TO ABOUT $3.  YET,

  ENORMOUS INSTALLATION FEES ARE CHARGED PLAINTIFF.  . . . 

     "(4) ALL OF THE MEMORIAL PARKS REQUIRE A SPECIFIC ALLOY
CONTENT

  IN THE BRONZE MARKERS INSTALLED, AND RESERVE THE RIGHT TO REJECT

NON-CONFORMING MARKERS. 

THE ALLOY CONTENT REQUIREMENT HAPPENS TO BE THE SAME AS MANUFACTURER
MATTHEWS'

  MARKERS AND THE SAME AS IS IMPLICITLY SUGGESTED IN A PAMPHLET
('MODERN CEMETERIES')

  DISTRIBUTED BY MATTHEWS TO ITS CUSTOMERS.  ALL OF THE MEMORIAL
PARKS EXCEPT ROOSEVELT ARE

  CUSTOMERS OF MATTHEWS. 

     "(5) THERE IS EVIDENCE THAT GREENLAWN, WOODLAWN AND PRINCESS

  ANNE HAVE ATTEMPTED TO DISSUADE LOT OWNERS FROM PURCHASING

  MARKERS FROM THE PLAINTIFF.  THE AFFIDAVIT OF PLAINTIFF'S

  PRESIDENT STATES THAT NUMEROUS OTHER INCIDENTS OF THIS NATURE

  HAVE OCCURRED. 

     "(6) DEFENDANT MATTHEWS, IN ITS PAMPHLET 'MODERN CEMETERIES,'

  SUGGESTS A NUMBER OF PRACTICES WHICH IN EFFECT ERECT COMPETITIVE

  BARRIERS TO RETAILERS OTHER THAN THE CEMETERIES THEMSELVES. 

     "(7) MANY OF THESE PRACTICES HAVE BEEN ADOPTED BY THE MEMORIAL

  PARK DEFENDANTS, AS EVIDENCED BY AFFIDAVITS IN THE RECORD, AND BY

  THE 'RULE BOOKS' OF ROSEWOOD, PRINCESS ANNE AND GREENLAWN. 

     "(8) THERE IS EVIDENCE OF NUMEROUS VISITS TO AND CONFERENCES

  WITH THE MEMORIAL PARKS BY SALES REPRESENTATIVES OF MATTHEWS." 

  404 F.2D, AT 1012-1014. 

THE DISTRICT COURT FOUND THAT THE RULES RELATING TO THE ALLOY
CONTENT AND INSTALLATION OF THE MARKERS WERE REASONABLE "(IN VIEW OF
THE CONTINUING OBLIGATION OF PERPETUAL CARE IMPOSED UPON THE
CEMETERIES, IN (THEIR) CONTRACTS WITH LOT OWNERS.  . . . "  290
F.SUPP.,AT 3.  BUT THE BUSINESS JUSTIFICATION FOR THESE RESTRICTIVE
RULES WAS DISPUTED BY THE PETITIONER, WHICH PROFFERED EVIDENCE THAT THE
MARKERS REQUIRED VERY LITTLE PERMANENT CARE AND THAT, IN ANY EVENT, THE
FUNDS FOR THAT PURPOSE WERE ALREADY PROVIDED FROM ANOTHER SOURCE.  THE
REASONABLENESS OF THE RULES WAS A MATERIAL QUESTION OF FACT WHOSE
RESOLUTION WAS THE FUNCTION OF THE JURY AND NOT OF THE COURT ON A
MOTION FOR SUMMARY JUDGMENT.  THE SAME IS TRUE OF THE INFERENCES TO BE
DRAWN FROM RESPONDENT MATTHEWS' PAMPHLET.  THE DISTRICT COURT DISMISSED
IT AS WITHOUT ANY POSSIBLE SIGNIFICANCE BECAUSE IT WAS A MERE "FORM
BOOK," WHICH "SPECIFICALLY POINTS OUT . . . THAT IT CONTAINS SUGGESTED
STANDARDS OF FAIR AND REASONABLE REGULATIONS WHICH THE CEMETERY WOULD
BE ADVISED TO ADOPT BUT SAYS THAT ' . . . JAS. H. MATTHEWS & CO. IS NOT
PERMITTED TO MAKE RECOMMENDATIONS AND SUGGESTS THAT THE READER CONSULT
HIS OWN ATTORNEY.'"  /1/  290 F.SUPP.,AT 3.  AGAIN THIS SELF-SERVING
DISCLAIMER RAISED A QUESTION FOR THE JURY, AND IT SURELY DID NOT ALONE
CONCLUSIVELY REBUT THE PETITIONER'S CONTENTION THAT THE PAMPHLET
EVIDENCED AN AGREEMENT AMONG THE RESPONDENTS TO PARTICIPATE IN THE
ALLEGED RESTRICTIVE PRACTICES. 

NOR DO THE OTHER FINDINGS OF THE DISTRICT COURT NECESSARILY DISPEL
THE INFERENCES WHICH THE JURY WOULD BE ASKED BY THE PETITIONER TO
DRAW.  THE DISTRICT COURT FOUND, FOR EXAMPLE, THAT THERE WAS "A WISE
DIVERGENCE OF PRICES" CHARGED FOR INSTALLATION "WHICH WOULD COMPLETELY
NEGATIVE ANY SYSTEMATIC SCHEMING OR CONSCIOUS PARALLELISM."  290
F.SUPP.,AT 3.  THE PETITIONER'S COMPLAINT, HOWEVER, WAS NOT THAT THE
RESPONDENT CEMETERIES WERE CHARGING UNIFORM FEES BUT THAT THEY WERE
CHARGING DELIBERATELY "EXCESSIVE AND UNREASONABLE" FEES FOR THE PURPOSE
OF INJURING THE PETITIONER.  THE FACT THAT THE DISTRICT COURT APPEARED
TO CONSIDER DISPOSITIVE OF THE CONSPIRACY ALLEGATIONS WAS THAT THE
PETITIONER'S PRINCIPAL OFFICER "ADMITTED THAT HE HAS NO LETTERS,
AGREEMENTS, CORRESPONDENCE, OR ANY OTHER TESTIMONIALS TO A CONSPIRACY
AMONG THE SEVERAL DEFENDANTS.  . . . "  290 F.SUPP.,AT 3.  BUT IT IS
SETTLED THAT "(NO FORMAL AGREEMENT IS NECESSARY TO CONSTITUTE AN
UNLAWFUL CONSPIRACY," AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S.
781, 809, AND THAT "BUSINESS BEHAVIOR IS ADMISSIBLE CIRCUMSTANTIAL
EVIDENCE FROM WHICH THE FACT FINDER MAY INFER AGREEMENT."  THEATRE
ENTERPRISES, INC. V. PARAMOUNT FILM DISTRIBUTING CORP., 346 U.S. 537,
540. 

WE EXPRESS NO OPINION, OF COURSE, ON THE STRENGTH OR WEAKNESS OF THE
PETITIONER'S CASE, BUT HOLD ONLY THAT THE ALLEGED CONSPIRACY HAD NOT
BEEN CONCLUSIVELY DISPROVED BY PRETRIAL DISCOVERY AND THAT THERE
REMAINED MATERIAL ISSUES OF FACT WHICH COULD ONLY BE RESOLVED BY THE
JURY AFTER A PLENARY TRIAL.  AS WE HAVE CAUTIONED BEFORE, "SUMMARY
PROCEDURES SHOULD BE USED SPARINGLY IN COMPLEX ANTITRUST LITIGATION
WHERE MOTIVE AND INTENT PLAY LEADING ROLES, THE PROOF IS LARGELY IN THE
HANDS OF THE ALLEGED CONSPIRATORS, AND HOSTILE WITNESSES THICKEN THE
PLOT."  POLLER V. COLUMBIA BROADCASTING SYSTEM, 368 U.S. 464, 473. 

THE WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS REVERSED, AND
THE CASE IS REMANDED FOR FURTHER PROCEEDINGS IN THE DISTRICT COURT
CONSISTENT WITH THIS OPINION. 

         IT IS SO ORDERED. 

/1/  JUDGE CRAVEN NOTED THAT THE REASON FOR THE DISCLAIMER IS THAT
"MATTHEWS IS UNDER AN INJUNCTION PROHIBITING IT FROM MAKING ANY
SUGGESTIONS TO MEMORIAL PARKS AS TO THE QUALITY OF MARKERS INSTALLED IN
THE PARKS."  404 F.2D, AT 1013, N. 6.  THE INJUNCTION WAS ENTERED IN
ONE OF THE THREE CONSENT DECREES WHICH HAVE SETTLED PRIOR ANTITRUST
ACTIONS AGAINST MATTHEWS.  SEE 404 F.2D, AT 1014. 

MR, JUSTICE HARLAN, MR. JUSTICE FORTAS, AND MR. JUSTICE MARSHALL ARE
OF THE OPINION THAT CERTIORARI SHOULD BE DENIED. 

HOWARD I. LEGUM AND LOUIS B. FINE FOR PETITIONER. 

FREDERICK S. ALBRINK FOR WOODLAWN MEMORIAL GARDENS, INC., WILLIAM C.
WORTHINGTON FOR ROSEWOOD MEMORIAL PARK, INC., ET AL., JEFFERSON B.
BROWN FOR GREENLAWN CEMETERY PARK CORP., BERNARD GLASSER AND STUART D.
GLASSER FOR ROOSEVELT MEMORIAL PARK & CEMETERY CORP., AND WILLIAM H.
KING FOR JAS. H. MATTHEWS & CO. OF VIRGINIA ET AL., RESPONDENTS. 
..END :





WATTS V. UNITED STATES, 394 U.S. 705 


       WATTS V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

NO. 1107, MISC.  DECIDED APRIL 21, 1969. 


PETITIONER'S REMARK DURING POLITICAL DEBATE AT SMALL PUBLIC GATHERING
THAT IF INDUCTED INTO ARMY (WHICH HE VOWED WOULD NEVER OCCUR) AND MADE
TO CARRY A RIFLE "THE FIRST MAN I WANT TO GET IN MY SIGHTS IS L. B.
J.," HELD TO BE CRUDE POLITICAL HYPERBOLE WHICH IN LIGHT OF ITS CONTEXT
AND CONDITIONAL NATURE DID NOT CONSTITUTE A KNOWING AND WILLFUL THREAT
AGAINST THE PRESIDENT WITHIN THE COVERAGE OF 18 U.S.C. 871(A). 

CERTIORARI GRANTED; 131 U.S.APP.D.C. 125, 402 F.2D 676, REVERSED AND
REMANDED. 

PER CURIAM. 

AFTER A JURY TRIAL IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, PETITIONER WAS CONVICTED OF VIOLATING A 1917
STATUTE WHICH PROHIBITS ANY PERSON FROM "KNOWINGLY AND WILLFULLY . . .
(MAKING) ANY THREAT TO TAKE THE LIFE OF OR TO INFLICT BODILY HARM UPON
THE PRESIDENT OF THE UNITED STATES . . . "  /0/  THE INCIDENT WHICH LED
TO PETITIONER'S ARREST OCCURRED ON AUGUST 27, 1966, DURING A PUBLIC
RALLY ON THE WASHINGTON MONUMENT GROUNDS.  THE CROWD PRESENT BROKE UP
INTO SMALL DISCUSSION GROUPS AND PETITIONER JOINED A GATHERING
SCHEDULED TO DISCUSS POLICE BRUTALITY.  MOST OF THOSE IN THE GROUP WERE
QUITE YOUNG, EITHER IN THEIR TEENS OR EARLY TWENTIES.  PETITIONER, WHO
HIMSELF WAS 18 YEARS OLD, ENTERED INTO THE DISCUSSION AFTER ONE MEMBER
OF THE GROUP SUGGESTED THAT THE YOUNG PEOPLE PRESENT SHOULD GET MORE
EDUCATION BEFORE EXPRESSING THEIR VIEWS.  ACCORDING TO AN INVESTIGATOR
FOR THE ARMY COUNTER INTELLIGENCE CORPS WHO WAS PRESENT, PETITIONER
RESPONDED:  "THEY ALWAYS HOLLER TO US TO GET AN EDUCATION.  AND NOW I
HAVE ALREADY RECEIVED MY DRAFT CLASSIFICATION AS 1-A AND I HAVE GOT TO
REPORT FOR MY PHYSICAL THIS MONDAY COMING.  I AM NOT GOING.  IF THEY
EVER MAKE ME CARRY A RIFLE THE FIRST MAN I WANT TO GET IN MY SIGHTS IS
L. B. J."  "THEY ARE NOT GOING TO MAKE ME KILL MY BLACK BROTHERS."  ON
THE BASIS OF THIS STATEMENT, THE JURY FOUND THAT PETITIONER HAD
COMMITTED A FELONY BY KNOWINGLY AND WILLFULLY THREATENING THE
PRESIDENT.  THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT AFFIRMED BY A TWO-TO-ONE VOTE.  131 U.S.APP.D.C. 125,
402 F.2D 676 (1968).  WE REVERSE. 

AT THE CLOSE OF THE GOVERNMENT'S CASE, PETITIONER'S TRIAL COUNSEL
MOVED FOR A JUDGMENT OF ACQUITTAL.  HE CONTENDED THAT THERE WAS
"ABSOLUTELY NO EVIDENCE ON THE BASIS OF WHICH THE JURY WOULD BE
ENTITLED TO FIND THAT (PETITIONER) MADE A THREAT AGAINST THE LIFE OF
THE PRESIDENT."  HE STRESSED THE FACT THAT PETITIONER'S STATEMENT WAS
MADE DURING A POLITICAL DEBATE, THAT IT WAS EXPRESSLY MADE CONDITIONAL
UPON AN EVENT-- INDUCTION INTO THE ARMED FORCES-- WHICH PETITIONER
VOWED WOULD NEVER OCCUR, AND THAT BOTH PETITIONER AND THE CROWD LAUGHED
AFTER THE STATEMENT WAS MADE.  HE CONCLUDED, "NOW ACTUALLY WHAT
HAPPENED HERE IN ALL THIS WAS A KIND OF VERY CRUDE OFFENSIVE METHOD OF
STATING A POLITICAL OPPOSITION TO THE PRESIDENT.  WHAT HE WAS SAYING,
HE SAYS, I DON'T WANT TO SHOOT BLACK PEOPLE BECAUSE I DON'T CONSIDER
THEM MY ENEMY, AND IF THEY PUT A RIFLE IN MY HAND IT IS THE PEOPLE THAT
PUT THE RIFLE IN MY HAND, AS SYMBOLIZED BY THE PRESIDENT, WHO ARE MY
REAL ENEMY."  WE HOLD THAT THE TRIAL JUDGE ERRED IN DENYING THIS
MOTION. 

CERTAINLY THE STATUTE UNDER WHICH PETITIONER WAS CONVICTED IS
CONSTITUTIONAL ON ITS FACE.  THE NATION UNDOUBTEDLY HAS A VALID, EVEN
AN OVERWHELMING, INTEREST IN PROTECTING THE SAFETY OF ITS CHIEF
EXECUTIVE AND IN ALLOWING HIM TO PERFORM HIS DUTIES WITHOUT
INTERFERENCE FROM THREATS OF PHYSICAL VIOLENCE.  SEE H.R. REP. NO. 652,
64TH CONG., 1ST SESS. (1916).  NEVERTHELESS, A STATUTE SUCH AS THIS
ONE, WHICH MAKES CRIMINAL A FORM OF PURE SPEECH, MUST BE INTERPRETED
WITH THE COMMANDS OF THE FIRST AMENDMENT CLEARLY IN MIND.  WHAT IS A
THREAT MUST BE DISTINGUISHED FROM WHAT IS CONSTITUTIONALLY PROTECTED
SPEECH. 

THE JUDGES IN THE COURT OF APPEALS DIFFERED OVER WHETHER OR NOT THE
"WILLFULNESS" REQUIREMENT OF THE STATUTE IMPLIED THAT A DEFENDANT MUST
HAVE INTENDED TO CARRY OUT HIS "THREAT."  SOME EARLY CASES FOUND THE
WILLFULNESS REQUIREMENT MET IF THE SPEAKER VOLUNTARILY UTTERED THE
CHARGED WORDS WITH "AN APPARENT DETERMINATION TO CARRY THEM INTO
EXECUTION.  RAGANSKY V. UNITED STATES, 253 F. 643, 645 (C.A. 7TH CIR.
1918); CF. PIERCE V. UNITED STATES, 365 F.2D 292 (C.A. 10TH CIR.
1966).  THE MAJORITY BELOW SEEMED TO AGREE.  PERHAPS THIS
INTERPRETATION IS CORRECT, ALTHOUGH WE HAVE GRAVE DOUBTS ABOUT IT.  SEE
THE DISSENTING OPINION BELOW, 131 U.S.APP.D.C.,AT 135-142, 402 F.2D,AT
686-693 (WRIGHT, J.).  BUT WHATEVER THE "WILLFULNESS" REQUIREMENT
IMPLIES, THE STATUTE INITIALLY REQUIRES THE GOVERNMENT TO PROVE A TRUE
"THREAT."  WE DO NOT BELIEVE THAT THE KIND OF POLITICAL HYPERBOLE
INDULGED IN BY PETITIONER FITS WITHIN THAT STATUTORY TERM.  FOR WE MUST
INTERPRET THE LANGUAGE CONGRESS CHOSE "AGAINST THE BACKGROUND OF A
PROFOUND NATIONAL COMMITMENT TO THE PRINCIPLE THAT DEBATE ON PUBLIC
ISSUES SHOULD BE UNINHIBITED, ROBUST, AND WIDE-OPEN, AND THAT IT MAY
WELL INCLUDE VEHEMENT, CAUSTIC, AND SOMETIMES UNPLEASANTLY SHARP
ATTACKS ON GOVERNMENT AND PUBLIC OFFICIALS."  NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254, 270 (1964).  THE LANGUAGE OF THE POLITICAL
ARENA, LIKE THE LANGUAGE USED IN LABOR DISPUTES, SEE LINN V. UNITED
PLANT GUARD WORKERS OF AMERICA, 383 U.S. 53, 58 (1966), IS OFTEN
VITUPERATIVE, ABUSIVE, AND INEXACT.  WE AGREE WITH PETITIONER THAT HIS
ONLY OFFENSE HERE WAS "A KIND OF VERY CRUDE OFFENSIVE METHOD OF STATING
A POLITICAL OPPOSITION TO THE PRESIDENT."  TAKEN IN CONTEXT, AND
REGARDING THE EXPRESSLY CONDITIONAL NATURE OF THE STATEMENT AND THE
REACTION OF THE LISTENERS, WE DO NOT SEE HOW IT COULD BE INTERPRETED
OTHERWISE. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED AND THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED.  THE CASE IS REMANDED WITH INSTRUCTIONS THAT IT BE
RETURNED TO THE DISTRICT COURT FOR ENTRY OF A JUDGMENT OF ACQUITTAL. 

              IT IS SO ORDERED. 

/0/  18 U.S.C. 871(A) PROVIDES: 

"WHOEVER KNOWINGLY AND WILLFULLY DEPOSITS FOR CONVEYANCE IN THE MAIL
OR FOR A DELIVERY FROM ANY POST OFFICE OR BY ANY LETTER CARRIER ANY
LETTER, PAPER, WRITING, PRINT, MISSIVE, OR DOCUMENT CONTAINING ANY
THREAT TO TAKE THE LIFE OF OR TO INFLICT BODILY HARM UPON THE PRESIDENT
OF THE UNITED STATES, THE PRESIDENT-ELECT, THE VICE PRESIDENT OR OTHER
OFFICER NEXT IN THE ORDER OF SUCCESSION TO THE OFFICE OF PRESIDENT OF
THE UNITED STATES, OR THE VICE PRESIDENT-ELECT, OR KNOWINGLY AND
WILLFULLY OTHERWISE MAKES ANY SUCH THREAT AGAINST THE PRESIDENT,
PRESIDENT-ELECT, VICE PRESIDENT OR OTHER OFFICER NEXT IN THE ORDER OF
SUCCESSION TO THE OFFICE OF PRESIDENT, OR VICE PRESIDENT-ELECT, SHALL
BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN FIVE YEARS,
OR BOTH." 

MR. JUSTICE STEWART WOULD DENY THE PETITION FOR CERTIORARI. 

MR. JUSTICE WHITE DISSENTS. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE CHARGE IN THIS CASE IS OF AN ANCIENT VINTAGE. 

THE FEDERAL STATUTE UNDER WHICH PETITIONER WAS CONVICTED TRACES ITS
ANCESTRY TO THE STATUTE OF TREASONS (25 EDW.  3) WHICH MADE IT A CRIME
TO "COMPASS OR IMAGINE THE DEATH OF . . . THE KING."  NOTE, THREATS TO
TAKE THE LIFE OF THE PRESIDENT, 32 HARV.L.REV.  724, 725 (1919).  IT IS
SAID THAT ONE WALTER WALKER, A 15TH CENTURY KEEPER OF AN INN KNOWN AS
THE "CROWN," WAS CONVICTED UNDER THE STATUTE OF TREASONS FOR TELLING
HIS SON:  "TOM, IF THOU BEHAVEST THYSELF WELL, I WILL MAKE THEE HEIR TO
THE CROWN."  HE WAS FOUND GUILTY OF COMPASSING AND IMAGINING THE DEATH
OF THE KING, HANGED, DRAWN, AND QUARTERED.  1 J. CAMPBELL, LIVES OF THE
CHIEF JUSTICES OF ENGLAND 151 (1873). 

IN THE TIME OF EDWARD IV, ONE THOMAS BURDET WHO PREDICTED THAT THE
KING WOULD "SOON DIE, WITH A VIEW TO ALIENATE THE AFFECTIONS" OF THE
PEOPLE WAS INDICTED FOR "COMPASSING AND IMAGINING OF THE DEATH OF THE
'KING," 79 ENG.REP.  706 (1477)-- THE CRIME OF CONSTRUCTIVE TREASON /1/
WITH WHICH THE OLD REPORTS ARE FILLED. 

IN THE TIME OF CHARLES II, ONE EDWARD BROWNLOW WAS INDICTED "FOR
SPEAKING THESE WORDS, THAT HE WISHED ALL THE GENTRY IN THE LAND WOULD
KILL ONE ANOTHER, SO THAT THE COMMINALTY MIGHT LIVE THE BETTER."  3
MIDDLESEX COUNTY REC. 326 (1888).  IN THE SAME YEAR (1662) ONE ROBERT
THORNELL WAS INDICTED FOR SAYING "THAT IF THE KINGE DID SIDE WITH THE
BISHOPS, THE DIVELL TAKE KINGE AND THE BISHOPS TOO."  ID., AT 327. 

WHILE OUR ALIEN AND SEDITION LAWS WERE IN FORCE, JOHN ADAMS,
PRESIDENT OF THE UNITED STATES, EN ROUTE FROM PHILADELPHIA,
PENNSYLVANIA, TO QUINCY, MASSACHUSETTS, STOPPED IN NEWARK, NEW JERSEY,
WHERE HE WAS GREETED BY A CROWD AND BY A COMMITTEE THAT SALUTED HIM BY
FIRING A CANNON. 

A BYSTANDER SAID, "THERE GOES THE PRESIDENT AND THEY ARE FIRING AT
HIS ASS."  LUTHER BALDWIN WAS INDICTED FOR REPLYING THAT HE DID NOT
CARE "IF THEY FIRED THROUGH HIS ASS."  HE WAS CONVICTED IN THE FEDERAL
COURT FOR SPEAKING "SEDICIOUS WORDS TENDING TO DEFAME THE PRESIDENT AND
GOVERNMENT OF THE UNITED STATES" AND FINED, ASSESSED COURT COSTS AND
EXPENSES, AND COMMITTED TO JAIL UNTIL THE FINE AND FEES WERE PAID.  SEE
J. SMITH, FREEDOM'S FETTERS 270-274 (1956). 

THE ALIEN AND SEDITION LAWS CONSTITUTED ONE OF OUR SORRIEST
CHAPTERS; AND I HAD THOUGHT WE HAD DONE WITH THEM FOREVER.  /2/ 

YET THE PRESENT STATUTE HAS HARDLY FARED BETTER.  "LIKE THE STATUTE
OF TREASONS, SECTION 871 WAS PASSED IN A 'RELATIVELY CALM PEACETIME
SPRING,' BUT HAS BEEN CONSTRUED UNDER CIRCUMSTANCES WHEN INTOLERANCE
FOR FREE SPEECH WAS MUCH GREATER THAN IT NORMALLY MIGHT BE."  NOTE,
THREATENING THE PRESIDENT:  PROTECTED DISSENTER OR POLITICAL ASSASSIN,
57 GEO.L.J. 553, 570 (1969).  CONVICTIONS UNDER 18 U.S.C. 871 HAVE BEEN
SUSTAINED FOR DISPLAYING POSTERS URGING PASSERSBY TO "HANG (PRESIDENT)
ROOSEVELT."  UNITED STATES V. APEL, 44 F.SUPP.  592, 593 (D.C.N.D. ILL.
1942); FOR DECLARING THAT "PRESIDENT WILSON OUGHT TO BE KILLED.  IT IS
A WONDER SOME ONE HAS NOT DONE IT ALREADY.  IT I HAD AN OPPORTUNITY, I
WOULD DO IT MYSELF."  UNITED STATES V. STICKRATH, 242 F. 151, 152
(D.C.S.D. OHIO 1917); FOR DECLARING THAT "WILSON IS A WOODEN-HEADED SON
OF A BITCH.  I WISH WILSON WAS IN HELL, AND IF I HAD THE POWER I WOULD
PUT HIM THERE,"  CLARK V. UNITED STATES, 250 F. 449 (C.A. 5TH CIR.
1918).  IN SUSTAINING AN INDICTMENT UNDER THE STATUTE AGAINST A MAN WHO
INDICATED THAT HE WOULD ENJOY SHOOTING PRESIDENT WILSON IF HE HAD THE
CHANCE, THE TRIAL COURT EXPLAINED THE THRUST OF SEC. 871: 

     "THE PURPOSE OF THE STATUTE WAS UNDOUBTEDLY, NOT ONLY THE

  PROTECTION OF THE PRESIDENT, BUT ALSO THE PROHIBITION OF JUST

  SUCH STATEMENTS AS THOSE ALLEGED IN THIS INDICTMENT.  THE

  EXPRESSION OS SUCH DIREFUL INTENTIONS AND DESIRES, NOT ONLY

  INDICATES A SPIRIT OF DISLOYALTY TO THE NATION BORDERING UPON

  TREASON, BUT IS, IN A VERY REAL SENSE A MENACE TO THE PEACE AND

  SAFETY OF THE COUNTRY . . . IT AROUSES RESENTMENT AND CONCERN ON

  THE PART OF PATRIOTIC CITIZENS." 

UNITED STATES V. JASICK, 252 F. 931, 933 (D.C.E.D. MICH. 1918). 

SUPPRESSION OF SPEECH AS AN EFFECTIVE POLICE MEASURE IS AN OLD, OLD
DEVICE, OUTLAWED BY OUR CONSTITUTION. 

/1/  THE PROSECUTION IN THOSE CASES LAID BARE TO THE JURIES THAT THE
TREASONOUS THOUGHTS WERE THE HEART OF THE MATTER; "THE ORIGINAL OF HIS
TREASONS PROCEEDED FROM THE IMAGINATION OF HIS HEART; WHICH IMAGINATION
WAS IN ITSELF HIGH-TREASON, ALBEIT THE SAME PROCEEDED NOT TO ANY OVERT
FACT: AND THE HEART BEING POSSESSED WITH THE ABUNDANCE OF HIS
TRAITOROUS IMAGINATION, AND NOT BEING ABLE SO TO CONTAIN ITSELF, BURST
FORTH IN VILE AND TRAITOROUS SPEECHES, AND FROM THENCE TO HORRIBLE AND
HEINOUS ACTIONS."  TRIAL OF SIR JOHN PERROT, 1 HOW.ST.TR. 1315, 1318
(1592).  "(HE HIGH TREASON CHARGED, IS THE COMPASSING OR IMAGINING (IN
OTHER WORDS, THE INTENDING OR DESIGNING) THE DEATH OF THE KING; I MEAN
HIS NATURAL DEATH; WHICH BEING A HIDDEN OPERATION OF THE MIND, AN OVERT
ACT IS ANY THING WHICH LEGALLY PROVES THE EXISTENCE OF SUCH TRAITOROUS
DESIGN AND INTENTION-- I SAY THAT THE DESIGN AGAINST THE KING'S NATURAL
LIFE, IS THE HIGH TREASON UNDER THE FIRST BRANCH OF THE STATUTE; AND
WHATEVER IS EVIDENCE, WHICH MAY BE LEGALLY LAID BEFORE A JURY TO JUDGE
OF THE TRAITOROUS INTENTION, IS A LEGAL OVERT ACT; BECAUSE AN OVERT ACT
IS NOTHING BUT LEGAL EVIDENCE EMBODIED UPON THE RECORD."  TRIAL OF
THOMAS HARDY, 24 HOW.ST.TR. 199, 894 (1794).  AND SEE 84 ENG.REP.  1057
(1708). 

FOR A DISCUSSION OF THE ADEQUACY OF MERE WORDS AS OVERT ACTS SEE 3
W. HOLDSWORTH, HISTORY OF ENGLISH LAW 293 (1927). 

/2/  "IN THE SEDITION ACT CASES, THE TENDENCY OF WORDS TO PRODUCE
ACTS AGAINST THE PEACE AND SECURITY OF THE COMMUNITY WAS STRETCHED TO
ITS UTMOST LATITUDE.  LIKEWISE, JUDGES AND JURIES, IN THEIR WILLINGNESS
TO PRESUME EVIL INTENT ON THE PART OF REPUBLICAN WRITERS, LARGELY
NULLIFIED THE SAFEGUARDS ERECTED BY THE SEDITION ACT ITSELF.  CRITICISM
OF THE PRESIDENT AND CONGRESS-- IN WHICH EVERY AMERICAN INDULGES AS HIS
BIRTHRIGHT-- WAS SEVERELY PUNISHED; YET THIS PRACTICE MANIFESTLY HAS
ONLY A REMOTE TENDENCY TO INJURE AND BRING INTO CONTEMPT THE GOVERNMENT
OF THE UNITED STATES.  IN SHORT, MUCH THAT HAS BECOME COMMONPLACE IN
AMERICAN POLITICAL LIFE WAS PUT UNDER THE BAN BY THE FEDERALIST
LAWMAKERS AND JUDGES OF 1798."  J. MILLER, CRISIS IN FREEDOM 233
(1951). 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE COURT HOLDS, WITHOUT HEARING, THAT THIS STATUTE IS
CONSTITUTIONAL AND THAT IT IS HERE WRONGLY APPLIED.  NEITHER OF THESE
RULINGS SHOULD BE MADE WITHOUT HEARING, EVEN IF WE ASSUME THAT THEY ARE
CORRECT.     PERHAPS THIS IS A TRIVIAL CASE BECAUSE OF ITS PECULIAR
FACTS AND BECAUSE THE PETITIONER WAS MERELY GIVEN A SUSPENDED
SENTENCE.  THAT DOES NOT JUSTIFY THE COURT'S ACTION.  IT SHOULD INDUCE
US TO DENY CERTIORARI, NOT TO DECIDE THE CASE ON ITS MERITS AND TO
ADJUDICATE THE DIFFICULT QUESTIONS THAT IT PRESENTS. 

JOSEPH FORER FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 

RALPH J. TEMPLE, MELVIN L. WULF, AND LAWRENCE SPEISER FOR THE
AMERICAN CIVIL LIBERTIES UNION ET AL. AS AMICI CURIAE. 
..END :




EMANUEL, EXECUTOR, V. CHAPPLE, EXECUTOR, 394 U.S. 713 


       EMANUEL, EXECUTOR, ET AL. V. CHAPPLE, EXECUTOR. 

        APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

   NO. 1125.  DECIDED APRIL 21, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

JAMES SHARP, JR., FOR APPELLANTS. 

HOWELL H. HEARD FOR APPELLEE. 
..END :










EMANUEL, EXECUTOR, V. CHAPPLE, EXECUTOR, 394 U.S. 713 


       EMANUEL, EXECUTOR, ET AL. V. CHAPPLE, EXECUTOR. 

        APPEAL FROM THE COURT OF APPEAL OF LOUISIANA, SECOND

           CIRCUIT. 

        NO. 1092.  DECIDED APRIL 21, 1969. 


210 SO.2D 602, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

JAMES SHARP, JR., FOR APPELLANTS. 

HOWELL H. HEARD FOR APPELLEE. 
..END :








CONTINENTAL CASUALTY CO. V. ROBERTSON LUMBER CO., 394 U.S. 714 


       CONTINENTAL CASUALTY CO. ET AL. V. ROBERTSON LUMBER CO.

        APPEAL FROM THE SUPREME COURT OF NORTH DAKOTA. 

        NO. 582.  DECIDED APRIL 21, 1969. 


160 N.W.2D 61, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

KAHL K. SPRIGGS AND JAMES L. LAMB FOR APPELLANTS. 

HAROLD D. SHAFT FOR APPELLEE. 

SOLICITOR GENERAL GRISWOLD, AT THE INVITATION OF THE COURT, FILED A
MEMORANDUM FOR THE UNITED STATES. 
..END :







PENDERGRAFT V. MISSISSIPPI, 394 U.S. 715 


       PENDERGRAFT V. MISSISSIPPI. 

        APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

        NO. 834.  DECIDED APRIL 21, 1969. 


213 SO.2D 560, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IF OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

W. S. MOORE FOR APPELLANT. 

JOE T. PATTERSON, ATTORNEY GENERAL OF MISSISSIPPI, AND G. GARLAND
LYELL, JR., ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :






OTTLEY V. LONG ISLAND COLLEGE HOSPITAL, 394 U.S. 716 


       OTTLEY ET AL. V. LONG ISLAND COLLEGE HOSPITAL. 

       APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

    N. 1045.  DECIDED APRIL 21, 1969. 


23 N.Y.2D 20, 241 N.E.2D 892, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A PROPERLY PRESENTED FEDERAL QUESTION. 

STEPHEN C. VLADECK AND JUDITH P. VLADECK FOR APPELLANTS. 

THEODORE R. ISERMAN AND FREDERICK T. SHEA FOR APPELLEE. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, PRO SE, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND MARIA L. MARCU S AND
AMY JUVILER, ASSISTANT ATTORNEYS GENERAL, FOR THE ATTORNEY GENERAL OF
NEW YORK AS AMICUS CURIAE IN SUPPORT OF APPELLANTS. 
..END :






CITY OF CHICAGO V. UNITED STATES, 394 U.S. 717 


       CITY OF CHICAGO ET AL. V. UNITED STATES ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS. 

        NO. 1047.  DECIDED APRIL 21, 1969.  /1/ 


291 F.SUPP.  858, AFFIRMED. 

PER CURIAM. 

A MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

/1/  TOGETHER WITH NO. 1048, ILLINOIS CENTRAL RAILROAD CO. ET AL. V.
CITY OF CHICAGO ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

RAYMOND F. SIMON, NUEL D. BELNAP, AND HAROLD E. SPENCER FOR
APPELLANTS IN NO. 1047.  JOHN W. ADAMS, WILLIAM J. O'BRIEN, JR., JAMES
H. DURKIN, BRYCE L. HAMILTON, AND LOUIS A. SCHWARTZ FOR APPELLANTS IN
NO. 1048. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
ROBERT W. GINNANE, LEONARD S. GOODMAN, AND RAYMOND M. ZIMMET FOR THE
UNITED STATES ET AL. IN BOTH CASES. 

BRIEFS OF AMICI CURIAE WERE FILED IN NO. 1047 BY WILLIAM J. SCOTT,
ATTORNEY GENERAL, AND ROBERT F. SCOTT, ASSISTANT ATTORNEY GENERAL, FOR
THE STATE OF ILLINOIS; BY FRANK J. KELLEY, ATTORNEY GENERAL, ROBERT A.
DERENGOSKI, SOLICITOR GENERAL, AND NICHOLAS V. OLDS, JEROME MASLOWSKI,
AND CURTIS G. BECK, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF
MICHIGAN; BY PAUL W. BROWN, ATTORNEY GENERAL, AND SHELBY V. HUTCHINS
AND J. PHILIP REDICK, ASSISTANT ATTORNEYS GENERAL, FOR THE STATE OF
OHIO; AND BY JOSEPH H. NATHANSON FOR THE TOLEDO-LUCAS COUNTY PORT
AUTHORITY. 
..END :














ESTES EXPRESS LINES V. UNITED STATES, 394 U.S. 718 


       ESTES EXPRESS LINES ET AL. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF VIRGINIA. 

NO. 1121.  DECIDED APRIL 21, 1969. 


292 F.SUPP.  842, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

HARRY J. JORDAN FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN, ROBERT
W. GINNANE, AND RAYMOND M. ZIMMET FOR THE UNITED STATES ET AL., AND
WILLIAM H. MARX AND H. MERRILL PASCO FOR RAILWAY EXPRESS AGENCY, INC.,
APPELLEES. 
..END :






CONSOLIDATED COPPERSTATE LINES V. UNITED STATES, 394 U.S. 719 


       CONSOLIDATED COPPERSTATE LINES V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

           DISTRICT OF CALIFORNIA. 

   NO. 1128.  DECIDED APRIL 21, 1969.  /1/ 


293 F.SUPP.  858, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

/1/  TOGETHER WITH NO. 1141, STRICKLAND TRANSPORTATION CO., INC. V.
UNITED STATES ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

DAVID AXELROD FOR APPELLANT IN NO. 1128.  DENNIS G. LYONS AND JOE A.
KEITH FOR APPELLANT IN NO. 1141. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MCLAREN,
ROBERT W. GINNANE, NAHUM LITT, AND JEROME NELSON FOR THE UNITED STATES
ET AL., T. S. CHRISTOPHER FOR APPELLEE BRASWELL MOTOR FREIGHT LINES,
INC., AND CARL L. PHINNEY FOR APPELLEE HERRIN TRANSPORTATION CO. IN
BOTH CASES.  PHILLIP ROBINSON FOR APPELLEES CENTRAL FREIGHT LINES,
INC., ET AL., AND REAGAN SAYERS FOR APPELLEE RYDER TRUCK LINES, INC.,
IN NO. 1128.  ROBERT E. JOYNER, PHINEAS STEVENS, AND CHARLES D. MATHEWS
FOR APPELLEES ARKANSAS-BEST FREIGHT SYSTEM, INC., ET AL. IN NO. 1141. 
..END :

















JONES V. FLORIDA, 394 U.S. 720 


       JONES V. FLORIDA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF

           APPEAL OF FLORIDA, THIRD DISTRICT. 

        NO. 807, MISC.  DECIDED APRIL 21, 1969. 


CERTIORARI GRANTED; 205 SO.2D 675, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD
DISTRICT, FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED
STATES, 391 U.S. 123, AND ROBERTS V. RUSSELL, 392 U.S. 293. 

PHILLIP A. HUBBART FOR PETITIONER. 

EARL FAIRCLOTH, ATTORNEY GENERAL OF FLORIDA, AND HAROLD MENDELOW,
ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :





FORTNER ENTERPRISES V. U.S. STEEL, 394 U.S. 495 


       FORTNER ENTERPRISES, INC., V. UNITED STATES STEEL CORP. ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 306.  ARGUED JANUARY 23, 1969.-- DECIDED APRIL 7,
1969. 


PETITIONER FILED THIS ACTION FOR TREBLE DAMAGES AND INJUNCTIVE RELIEF
FOR ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT BY
RESPONDENTS, U.S. STEEL CORP. AND ITS WHOLLY OWNED SUBSIDIARY, U.S.
STEEL HOMES CREDIT CORP., ALLEGING AN AGREEMENT BETWEEN RESPONDENTS TO
FORCE PETITIONER AND OTHERS AS A CONDITION OF OBTAINING CREDIT ON
ADVANTAGEOUS TERMS FROM CREDIT CORP. TO PURCHASE AT ARTIFICIALLY HIGH
PRICES PREFABRICATED HOUSES MANUFACTURED BY U.S. STEEL.  PETITIONER
CLAIMED THAT IN ORDER FOR IT TO OBTAIN OVER $2,000,000 IN LOANS TO BUY
AND DEVELOP LAND IN THE LOUISVILLE, KY., AREA IT WAS REQUIRED TO AGREE
TO ERECT A U.S. STEEL-FABRICATED HOUSE ON EACH OF THE LOTS IT BOUGHT
WITH THE LOAN PROCEEDS.  ON THE BASIS OF ITS COMPLAINT AND AFFIDAVITS
AND ANSWERS TO INTERROGATORIES FILED IN THE COURSE OF PRETRIAL
PROCEEDINGS, PETITIONER CLAIMED THAT DURING THE 1959-1962 PERIOD
INVOLVED PETITIONER COULD FIND NO OTHER FINANCING IN THE LOUISVILLE
AREA AT SUCH CHEAP TERMS AND ON THE 100% BASIS THAT CREDIT CORP.
OFFERED.  THE DISTRICT COURT, HOLDING THAT PETITIONER'S ALLEGATIONS HAD
RAISED NO QUESTION OF FACT AS TO A POSSIBLE VIOLATION OF THE ANTITRUST
LAWS, ENTERED SUMMARY JUDGMENT FOR RESPONDENTS.  THE COURT OF APPEALS
AFFIRMED.  HELD: 

1.  THE DISTRICT COURT INCORRECTLY ASSUMED THAT THE STANDARDS IN
NORTHERN PACIFIC R. CO. V. UNITED STATES, 356 U.S. 1, FOR DETERMINING
THE ILLEGALITY PER SE OF A TYING AGREEMENT HAD TO BE MET BEFORE
PETITIONER COULD PREVAIL ON THE MERITS.  PP. 498-500. 

2.  IN ANY EVENT THE FACTS RAISED BY PETITIONER, IF PROVED AT TRIAL,
MAKE THE PER SE DOCTRINE APPLICABLE TO THE TYING ARRANGEMENT HERE. 
PP.500-501. 

3.  THE VOLUME OF COMMERCE ALLEGEDLY FORECLOSED WAS SUBSTANTIAL WHEN
MEASURED AS IT SHOULD BE, NOT BY THE PORTION OF THE TOTAL ACCOUNTED FOR
BY PETITIONER'S CONTRACTS, BUT BY THE TOTAL VOLUME OF SALES TIED BY
RESPONDENTS' CHALLENGED SALES POLICY.  PP. 501-502. 

4.  ECONOMIC POWER MAY BE INFERRED FROM THE SELLER'S ABILITY TO
RAISE PRICES, OR IMPOSE OTHER BURDENSOME TERMS SUCH AS A TIE-IN, WITH
RESPECT TO ANY APPRECIABLE NUMBER OF BUYERS WITHIN THE MARKET AND DOES
NOT REQUIRE (AS THE DISTRICT COURT ERRONEOUSLY ASSUMED) A SHOWING OF
THE SELLER'S DOMINANCE OVER THE MARKET FOR THE TYING PRODUCT.  BY THIS
STANDARD, IN VIEW OF PETITIONER'S SHOWING THAT HOUSES COMPARABLE TO
U.S. STEEL'S WERE SOLD BY ITS COMPETITORS FOR SUBSTANTIALLY LESS AND
THE LACK OF FINANCING THROUGH OTHER SOURCES ON TERMS CREDIT CORP. MADE
AVAILABLE TO PETITIONER, PETITIONER SHOULD HAVE BEEN ALLOWED TO GO TO
TRIAL ON THE MARKET POWER ISSUE.  PP. 502-506. 

5.  THE ARRANGEMENT HERE, WHERE CREDIT IS PROVIDED BY ONE
CORPORATION ON CONDITION THAT A PRODUCT BE PURCHASED FROM ANOTHER
CORPORATION, AND WHERE THE BORROWER CONTRACTS TO OBTAIN A LARGE SUM OF
MONEY BEYOND THAT NEEDED TO PAY THE SELLER FOR THE PHYSICAL PRODUCTS
PURCHASED, IS READILY DISTINGUISHABLE FROM THE SALE OF A SINGLE PRODUCT
ON CREDIT BY AN INDIVIDUAL SELLER.  PP. 506-507. 

6.  WHERE CREDIT IS THE SOURCE OF TYING LEVERAGE USED TO RESTRAIN
COMPETITION, IT IS TREATED NO DIFFERENTLY UNDER THE ANTITRUST LAWS FROM
OTHER GOODS AND SERVICES.  PP. 508-509. 

404 F.2D 936, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES A VARIETY OF QUESTIONS CONCERNING THE PROPER
STANDARDS TO BE APPLIED BY A UNITED STATES DISTRICT COURT IN PASSING ON
A MOTION FOR SUMMARY JUDGMENT IN A CIVIL ANTITRUST ACTION.  PETITIONER,
FORTNER ENTERPRISES INC., FILED THIS SUIT SEEKING TREBLE DAMAGES AND AN
INJUNCTION AGAINST ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN
ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. 1, 2.  THE COMPLAINT CHARGED
THAT RESPONDENTS, UNITED STATES STEEL CORP. AND ITS WHOLLY OWNED
SUBSIDIARY, THE UNITED STATES STEEL HOMES CREDIT CORP., HAD ENGAGED IN
A CONTRACT, COMBINATION, AND CONSPIRACY TO RESTRAIN TRADE AND TO
MONOPOLIZE TRADE IN THE SALE OF PREFABRICATED HOUSES.  IT ALLEGED THAT
THERE WAS A CONTINUING AGREEMENT BETWEEN RESPONDENTS "TO FORCE
CORPORATIONS AND INDIVIDUALS, INCLUDING THE PLAINTIFF, AS A CONDITION
TO AVAILING THEMSELVES OF THE SERVICES OF UNITED STATES STEEL HOMES
CREDIT CORPORATION, TO PURCHASE AT ARTIFICIALLY HIGH PRICES ONLY UNITED
STATES STEEL HOMES . . . ."  SPECIFICALLY, PETITIONER CLAIMED THAT IN
ORDER TO OBTAIN LOANS TOTALING OVER $2,000,000 FROM THE CREDIT CORP.
FOR THE PURCHASE AND DEVELOPMENT OF CERTAIN LAND IN THE LOUISVILLE,
KENTUCKY, AREA, IT HAD BEEN REQUIRED TO AGREE, AS A CONDITION OF THE
LOANS, TO ERECT A PREFABRICATED HOUSE MANUFACTURED BY U.S. STEEL ON
EACH OF THE LOTS PURCHASED WITH THE LOAN PROCEEDS.  PETITIONER CLAIMED
THAT THE PREFABRICATED MATERIALS WERE THEN SUPPLIED BY U.S. STEEL AT
UNREASONABLY HIGH PRICES AND PROVED TO BE DEFECTIVE AND UNUSABLE, THUS
REQUIRING THE EXPENDITURE OF ADDITIONAL SUMS AND DELAYING THE
COMPLETION DATE FOR THE DEVELOPMENT.  PETITIONER SOUGHT TREBLE DAMAGES
FOR THE PROFITS THUS LOST, ALONG WITH A DECREE ENJOINING RESPONDENTS
FROM ENFORCING THE REQUIREMENT OF THE LOAN AGREEMENT THAT PETITIONER
USE ONLY HOUSES MANUFACTURED BY U.S. STEEL. 

AFTER PRETRIAL PROCEEDINGS IN WHICH A NUMBER OF AFFIDAVITS AND
ANSWERS TO INTERROGATORIES WERE FILED, THE DISTRICT COURT ENTERED
SUMMARY JUDGMENT FOR RESPONDENTS, HOLDING THAT PETITIONER'S ALLEGATIONS
HAD FAILED TO RAISE ANY QUESTION OF FACT AS TO A POSSIBLE VIOLATION OF
THE ANTITRUST LAWS.  NOTING THAT THE AGREEMENT INVOLVED HERE WAS
ESSENTIALLY A TYING ARRANGEMENT, UNDER WHICH THE PURCHASER WAS REQUIRED
TO TAKE A TIED PRODUCT-- HERE PREFABRICATED HOMES-- AS A CONDITION OF
BEING ALLOWED TO PURCHASE THE TYING PRODUCT-- HERE CREDIT, THE DISTRICT
JUDGE HELD THAT PETITIONER HAD FAILED TO ESTABLISH THE PREREQUISITES OF
ILLEGALITY UNDER OUR TYING CASES, NAMELY SUFFICIENT MARKET POWER OVER
THE TYING PRODUCT AND FORECLOSURE OF A SUBSTANTIAL VOLUME OF COMMERCE
IN THE TIED PRODUCT.  THE COURT OF APPEALS AFFIRMED WITHOUT OPINION,
AND WE GRANTED CERTIORARI, 393 U.S. 820 (1968).  SINCE WE FIND NO BASIS
FOR SUSTAINING THIS SUMMARY JUDGMENT, WE REVERSE AND ORDER THAT THE
CASE PROCEED TO TRIAL. 

WE AGREE WITH THE DISTRICT COURT THAT THE CONDUCT CHALLENGED HERE
PRIMARILY INVOLVES A TYING ARRANGEMENT OF THE TRADITIONAL KIND.  THE
CREDIT CORP. SOLD ITS CREDIT ONLY ON THE CONDITION THAT PETITIONER
PURCHASE A CERTAIN NUMBER OF PREFABRICATED HOUSES FROM THE HOMES
DIVISION OF U.S. STEEL.  OUR CASES HAVE MADE CLEAR THAT, AT LEAST WHEN
CERTAIN PREREQUISITES ARE MET, ARRANGEMENTS OF THIS KIND ARE ILLEGAL IN
AND OF THEMSELVES, AND NO SPECIFIC SHOWING OF UNREASONABLE COMPETITIVE
EFFECT IS REQUIRED.  THE DISCUSSION IN NORTHERN PACIFIC R. CO. V.
UNITED STATES, 356 U.S. 1, 5-6 (1958), IS DISPOSITIVE OF THIS
QUESTION: 

"(THERE ARE CERTAIN AGREEMENTS OR PRACTICES WHICH BECAUSE OF THEIR
PERNICIOUS EFFECT ON COMPETITION AND LACK OF ANY REDEEMING VIRTUE ARE
CONCLUSIVELY PRESUMED TO BE UNREASONABLE AND THEREFORE ILLEGAL WITHOUT
ELABORATE INQUIRY AS TO THE PRECISE HARM THEY HAVE CAUSED OR THE
BUSINESS EXCUSE FOR THEIR USE.  . . . 

" . . . WHERE (TYING) CONDITIONS ARE SUCCESSFULLY EXACTED

  COMPETITION ON THE MERITS WITH RESPECT TO THE TIED PRODUCT IS

  INEVITABLY CURBED.  INDEED 'TYING AGREEMENTS SERVE HARDLY ANY

  PURPOSE BEYOND THE SUPPRESSION OF COMPETITION.'  STANDARD OIL CO.

  OF CALIFORNIA V. UNITED STATES, 337 U.S. 293, 305-306.  THEY DENY

  COMPETITORS FREE ACCESS TO THE MARKET FOR THE TIED PRODUCT, NOT

  BECAUSE THE PARTY IMPOSING THE TYING REQUIREMENTS HAS A BETTER

  PRODUCT OR A LOWER PRICE BUT BECAUSE OF HIS POWER OR LEVERAGE IN

  ANOTHER MARKET.  AT THE SAME TIME BUYERS ARE FORCED TO FOREGO

 THEIR FREE CHOICE BETWEEN COMPETING PRODUCTS.  FOR THESE REASONS

  'TYING AGREEMENTS FARE HARSHLY UNDER THE LAWS FORBIDDING

  RESTRAINTS OF TRADE.'  TIMES-PICAYUNE PUBLISHING CO. V. UNITED

  STATES, 345 U.S. 594, 606.  THEY ARE UNREASONABLE IN AND OF

  THEMSELVES WHENEVER A PARTY HAS SUFFICIENT ECONOMIC POWER WITH

  RESPECT TO THE TYING PRODUCT TO APPRECIABLY RESTRAIN FREE

  COMPETITION IN THE MARKET FOR THE TIED PRODUCT AND A 'NOT

  INSUBSTANTIAL' AMOUNT OF INTERSTATE COMMERCE IS AFFECTED. 

  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392." 

DESPITE ITS RECOGNITION OF THIS STRICT STANDARD, THE DISTRICT COURT
HELD THAT PETITIONER HAD NOT EVEN MADE OUT A CASE FOR THE JURY.  THE
COURT HELD THAT RESPONDENTS DID NOT HAVE "SUFFICIENT ECONOMIC POWER"
OVER CREDIT, THE TYING PRODUCT HERE, BECAUSE ALTHOUGH THE CREDIT
CORP.'S TERMS EVIDENTLY MADE THE LOANS UNIQUELY ATTRACTIVE TO
PETITIONER, PETITIONER HAD NOT PROVED THAT THE CREDIT CORP. ENJOYED THE
SAME UNIQUE ATTRACTIVENESS OR ECONOMIC CONTROL WITH RESPECT TO BUYERS
GENERALLY.  THE COURT ALSO HELD THAT THE AMOUNT OF INTERSTATE COMMERCE
AFFECTED WAS "INSUBSTANTIAL" BECAUSE ONLY A VERY SMALL PERCENTAGE OF
THE LAND AVAILABLE FOR DEVELOPMENT IN THE AREA WAS FORECLOSED TO
COMPETING SELLERS OF PREFABRICATED HOUSES BY THE CONTRACT WITH
PETITIONER.  WE THINK IT PLAIN THAT THE DISTRICT COURT MISUNDERSTOOD
THE TWO CONTROLLING STANDARDS AND MISCONCEIVED THE EXTENT OF ITS
AUTHORITY TO EVALUATE THE EVIDENCE IN RULING ON THIS MOTION FOR SUMMARY
JUDGMENT. 

A PRELIMINARY ERROR THAT SHOULD NOT PASS UNNOTICED IS THE DISTRICT
COURT'S ASSUMPTION THAT THE TWO PREREQUISITES MENTIONED IN NORTHERN
PACIFIC ARE STANDARDS THAT PETITIONER MUST MEET IN ORDER TO PREVAIL ON
THE MERITS.  ON THE CONTRARY, THESE STANDARDS ARE NECESSARY ONLY TO
BRING INTO PLAY THE DOCTRINE OF PER SE ILLEGALITY.  WHERE THE STANDARDS
WERE FOUND SATISFIED IN NORTHERN PACIFIC, AND IN INTERNATIONAL SALT CO.
V. UNITED STATES, 332 U.S. 392 (1947), THIS COURT APPROVED SUMMARY
JUDGMENT AGAINST THE DEFENDANTS BUT BY NO MEANS IMPLIED THAT INABILITY
TO SATISFY THESE STANDARDS WOULD BE FATAL TO A PLAINTIFF'S CASE.  A
PLAINTIFF CAN STILL PREVAIL ON THE MERITS WHENEVER HE CAN PROVE, ON THE
BASIS OF A MORE THOROUGH EXAMINATION OF THE PURPOSES AND EFFECTS OF THE
PRACTICES INVOLVED, THAT THE GENERAL STANDARDS OF THE SHERMAN ACT HAVE
BEEN VIOLATED.  ACCORDINGLY, EVEN IF WE COULD AGREE WITH THE DISTRICT
COURT THAT THE NORTHERN PACIFIC STANDARDS WERE NOT SATISFIED HERE, THE
SUMMARY JUDGMENT AGAINST PETITIONER STILL COULD NOT BE ENTERED WITHOUT
FURTHER EXAMINATION OF PETITIONER'S GENERAL ALLEGATIONS THAT
RESPONDENTS CONSPIRED TOGETHER FOR THE PURPOSE OF RESTRAINING
COMPETITION AND ACQUIRING A MONOPOLY IN THE MARKET FOR PREFABRICATED
HOUSES.  AND SUCH AN EXAMINATION COULD RARELY JUSTIFY SUMMARY JUDGMENT
WITH RESPECT TO A CLAIM OF THIS KIND, FOR AS WE SAID IN POLLER V.
COLUMBIA BROADCASTING, 368 U.S. 464, 473 (1962): 

"WE BELIEVE THAT SUMMARY PROCEDURES SHOULD BE USED SPARINGLY IN
COMPLEX ANTITRUST LITIGATION WHERE MOTIVE AND INTENT PLAY LEADING
ROLES, THE PROOF IS LARGELY IN THE HANDS OF THE ALLEGED CONSPIRATORS,
AND HOSTILE WITNESSES THICKEN THE PLOT.  IT IS ONLY WHEN THE WITNESSES
ARE PRESENT AND SUBJECT TO CROSS-EXAMINATION THAT THEIR CREDIBILITY AND
THE WEIGHT TO BE GIVEN THEIR TESTIMONY CAN BE APPRAISED.  TRIAL BY
AFFIDAVIT IS NO SUBSTITUTE FOR TRIAL BY JURY WHICH SO LONG HAS BEEN THE
HALLMARK OF 'EVEN HANDED JUSTICE.'" 

WE NEED NOT CONSIDER, HOWEVER, WHETHER PETITIONER IS ENTITLED TO A
TRIAL ON THIS MORE GENERAL THEORY, FOR IT IS CLEAR THAT PETITIONER
RAISED QUESTIONS OF FACT WHICH, IF PROVED AT TRIAL, WOULD BRING THIS
TYING ARRANGEMENT WITHIN THE SCOPE OF THE PER SE DOCTRINE.  THE
REQUIREMENT THAT A "NOT INSUBSTANTIAL" AMOUNT OF COMMERCE BE INVOLVED
MAKES NO REFERENCE TO THE SCOPE OF ANY PARTICULAR MARKET OR TO THE
SHARE OF THAT MARKET FORECLOSED BY THE TIE, AND HENCE WE COULD NOT
APPROVE OF THE TRIAL JUDGE'S CONCLUSIONS ON THIS ISSUE EVEN IF WE
AGREED THAT HIS DEFINITION OF THE RELEVANT MARKET WAS THE PROPER ONE. 
/1/  AN ANALYSIS OF MARKET SHARES MIGHT BECOME RELEVANT IF IT WERE
ALLEGED THAT AN APPARENTLY SMALL DOLLAR-VOLUME OF BUSINESS ACTUALLY
REPRESENTED A SUBSTANTIAL PART OF THE SALES FOR WHICH COMPETITORS WERE
BIDDING.  BUT NORMALLY THE CONTROLLING CONSIDERATION IS SIMPLY WHETHER
A TOTAL AMOUNT OF BUSINESS, SUBSTANTIAL ENOUGH IN TERMS OF DOLLAR
VOLUME SO AS NOT TO BE MERELY DE MINIMIS, IS FORECLOSED TO COMPETITORS
BY THE TIE, FOR AS WE SAID IN INTERNATIONAL SALT, IT IS "UNREASONABLE,
PER SE, TO FORECLOSE COMPETITORS FROM ANY SUBSTANTIAL MARKET" BY A
TYING ARRANGEMENT, 332 U.S.,AT 396. 

THE COMPLAINT AND AFFIDAVITS FILED HERE LEAVE NO ROOM FOR DOUBT THAT
THE VOLUME OF COMMERCE ALLEGEDLY FORECLOSED WAS SUBSTANTIAL.  IT MAY BE
TRUE, AS RESPONDENTS CLAIM, THAT PETITIONER'S ANNUAL PURCHASES OF
HOUSES FROM U.S. STEEL UNDER THE TYING ARRANGEMENT NEVER EXCEEDED
$190,000, WHILE MORE THAN $500,000 IN ANNUAL SALES WAS INVOLVED IN THE
TYING ARRANGEMENT HELD ILLEGAL IN INTERNATIONAL SALT, BUT WE CANNOT
AGREE WITH RESPONDENTS THAT A SUM OF ALMOST $200,000 IS PALTRY OR
"INSUBSTANTIAL."  IN ANY EVENT, A NARROW FOCUS ON THE VOLUME OF
COMMERCE FORECLOSED BY THE PARTICULAR CONTRACT OR CONTRACTS IN SUIT
WOULD NOT BE APPROPRIATE IN THIS CONTEXT.  AS THE SPECIAL PROVISION
AWARDING TREBLE DAMAGES TO SUCCESSFUL PLAINTIFFS ILLUSTRATES, CONGRESS
HAS ENCOURAGED PRIVATE ANTITRUST LITIGATION NOT MERELY TO COMPENSATE
THOSE WHO HAVE BEEN DIRECTLY INJURED BUT ALSO TO VINDICATE THE
IMPORTANT PUBLIC INTEREST IN FREE COMPETITION.  SEE PERMA LIFE MUFFLERS
V. INTERNATIONAL PARTS CORP., 392 U.S. 134, 138-139 (1968).  FOR
PURPOSES OF DETERMINING WHETHER THE AMOUNT OF COMMERCE FORECLOSED IS
TOO INSUBSTANTIAL TO WARRANT PROHIBITION OF THE PRACTICE, THEREFORE,
THE RELEVANT FIGURE IS THE TOTAL VOLUME OF SALES TIED BY THE SALES
POLICY UNDER CHALLENGE, NOT THE PORTION OF THIS TOTAL ACCOUNTED FOR BY
THE PARTICULAR PLAINTIFF WHO BRINGS SUIT.  IN INTERNATIONAL SALT THE
$500,000 TOTAL REPRESENTED THE VOLUME OF TIED SALES TO ALL PURCHASERS,
AND ALTHOUGH THIS AMOUNT WAS DIRECTLY INVOLVED BECAUSE THE CASE WAS
BROUGHT BY THE GOVERNMENT AGAINST THE PRACTICE GENERALLY, THE CASE
WOULD HAVE BEEN NO LESS WORTHY OF JUDICIAL SCRUTINY IF IT HAD BEEN
BROUGHT BY ONE INDIVIDUAL PURCHASER WHO ACCOUNTED FOR ONLY A FRACTION
OF THE $500,000 IN TIED SALES.  IN THE PRESENT CASE, THE ANNUAL SALES
ALLEGEDLY FORECLOSED BY RESPONDENTS'  TYING ARRANGEMENTS THROUGHOUT THE
COUNTRY TOTALED ALMOST $4,000,000 IN 1960, MORE THAN $2,800,000 IN
1961, AND ALMOST $2,300,000 IN 1962.  THESE AMOUNTS COULD SCARCELY BE
REGARDED AS INSUBSTANTIAL. 

THE STANDARD OF "SUFFICIENT ECONOMIC POWER" DOES NOT, AS THE
DISTRICT COURT HELD, REQUIRE THAT THE DEFENDANT HAVE A MONOPOLY OR EVEN
A DOMINANT POSITION THROUGHOUT THE MARKET FOR THE TYING PRODUCT.  OUT
TIE-IN CASES HAVE MADE UNMISTAKABLY CLEAR THAT THE ECONOMIC POWER OVER
THE TYING PRODUCT CAN BE SUFFICIENT EVEN THOUGH THE POWER FALLS FAR
SHORT OF DOMINANCE AND EVEN THOUGH THE POWER EXISTS ONLY WITH RESPECT
TO SOME OF THE BUYERS IN THE MARKET.  SEE, E.G., INTERNATIONAL SALT;
NORTHERN PACIFIC; UNITED STATES V. LOEW'S INC., 371 U.S. 38 (1962).  AS
WE SAID IN THE LOEW'S CASE, 371 U.S.,AT 45:  "EVEN ABSENT A SHOWING OF
MARKET DOMINANCE, THE CRUCIAL ECONOMIC POWER MAY BE INFERRED FROM THE
TYING PRODUCT'S DESIRABILITY TO CONSUMERS OR FROM UNIQUENESS IN ITS
ATTRIBUTES." 

THESE DECISIONS REJECTING THE NEED FOR PROOF OF TRULY DOMINANT POWER
OVER THE TYING PRODUCT HAVE ALL BEEN BASED ON A RECOGNITION THAT
BECAUSE TYING ARRANGEMENTS GENERALLY SERVE NO LEGITIMATE BUSINESS
PURPOSE THAT CANNOT BE ACHIEVED IN SOME LESS RESTRICTIVE WAY, THE
PRESENCE OF ANY APPRECIABLE RESTRAINT ON COMPETITION PROVIDES A
SUFFICIENT REASON FOR INVALIDATING THE TIE.  SUCH APPRECIABLE RESTRAINT
RESULTS WHENEVER THE SELLER CAN EXERT SOME POWER OVER SOME OF THE
BUYERS IN THE MARKET, EVEN IF HIS POWER IS NOT COMPLETE OVER THEM AND
OVER ALL OTHER BUYERS IN THE MARKET.  IN FACT, COMPLETE DOMINANCE
THROUGHOUT THE MARKET, THE CONCEPT THAT THE DISTRICT COURT APPARENTLY
HAD IN MIND, WOULD NEVER EXIST EVEN UNDER A PURE MONOPOLY.  MARKET
POWER IS USUALLY STATED TO BE THE ABILITY OF A SINGLE SELLER TO RAISE
PRICE AND RESTRICT OUTPUT, FOR REDUCED OUTPUT IS THE ALMOST INEVITABLE
RESULT OF HIGHER PRICES.  EVEN A COMPLETE MONOPOLIST CAN SELDOM RAISE
HIS PRICE WITHOUT LOSING SOME SALES; MANY BUYERS WILL CEASE TO BUY THE
PRODUCT, OR BUY LESS, AS THE PRICE RISES.  MARKET POWER IS THEREFORE A
SOURCE OF SERIOUS CONCERN FOR ESSENTIALLY THE SAME REASON, REGARDLESS
OF WHETHER THE SELLER HAS THE GREATEST ECONOMIC POWER POSSIBLE OR
MERELY SOME LESSER DEGREE OF APPRECIABLE ECONOMIC POWER.  IN BOTH
INSTANCES, DESPITE THE FREEDOM OF SOME OR MANY BUYERS FROM THE SELLER'S
POWER, OTHER BUYERS-- WHETHER FEW OR MANY, WHETHER SCATTERED THROUGHOUT
THE MARKET OR PART OF SOME GROUP WITHIN THE MARKET-- CAN BE FORCED TO
ACCEPT THE HIGHER PRICE BECAUSE OF THEIR STRONGER PREFERENCES FOR THE
PRODUCT, AND THE SELLER COULD THEREFORE CHOOSE INSTEAD TO FORCE THEM TO
ACCEPT A TYING ARRANGEMENT THAT WOULD PREVENT FREE COMPETITION FOR
THEIR PATRONAGE IN THE MARKET FOR THE TIED PRODUCT.  ACCORDINGLY, THE
PROPER FOCUS OF CONCERN IS WHETHER THE SELLER HAS THE POWER TO RAISE
PRICES, OR IMPOSE OTHER BURDENSOME TERMS SUCH AS A TIE-IN, WITH RESPECT
TO ANY APPRECIABLE NUMBER OF BUYERS WITHIN THE MARKET. 

THE AFFIDAVITS PUT FORWARD BY PETITIONER CLEARLY ENTITLE IT TO ITS
DAY IN COURT UNDER THIS STANDARD.  A CONSTRUCTION COMPANY PRESIDENT
STATED THAT COMPETITORS OF U.S. STEEL SOLD PREFABRICATED HOUSES AND
BUILT CONVENTIONAL HOMES FOR AT LEAST $400 LESS THAN U.S. STEEL'S PRICE
FOR COMPARABLE MODELS.  SINCE IN A FREELY COMPETITIVE SITUATION BUYERS
WOULD NOT ACCEPT A TYING ARRANGEMENT OBLIGATING THEM TO BUY A TIED
PRODUCT AT A PRICE HIGHER THAN THE GOING MARKET RATE, THIS SUBSTANTIAL
PRICE DIFFERENTIAL WITH RESPECT TO THE TIED PRODUCT (PREFABRICATED
HOUSES) IN ITSELF MAY SUGGEST THAT RESPONDENTS HAD SOME SPECIAL
ECONOMIC POWER IN THE CREDIT MARKET.  IN ADDITION, PETITIONER'S
PRESIDENT, A. B. FORTNER, STATED THAT HE ACCEPTED THE TYING CONDITION
ON RESPONDENTS' LOAN SOLELY BECAUSE THE OFFER TO PROVIDE 100%
FINANCING, LENDING AN AMOUNT EQUAL TO THE FULL PURCHASE PRICE OF THE
LAND TO BE ACQUIRED, WAS UNUSUALLY AND UNIQUELY ADVANTAGEOUS TO HIM. 
HE FOUND THAT NO SUCH FINANCING WAS AVAILABLE TO HIS CORPORATION ON ANY
SUCH CHEAP TERMS FROM ANY OTHER SOURCE DURING THE 1959-1962 PERIOD. 
HIS VIEWS ON THIS WERE SUPPORTED BY THE PRESIDENT OF A FINANCE COMPANY
IN THE LOUISVILLE AREA, WHO STATED IN AN AFFIDAVIT THAT THE TYPE OF
ADVANTAGEOUS FINANCING PLAN OFFERED BY U.S. STEEL "WAS NOT AVAILABLE TO
FORTNER ENTERPRISES OR ANY OTHER POTENTIAL BORROWER FROM OR THROUGH
LOUISVILLE MORTGAGE SERVICE COMPANY OR FROM OR THROUGH ANY OTHER
LENDING INSTITUTION OR MORTGAGE COMPANY TO THIS AFFIANT'S KNOWLEDGE
DURING THIS PERIOD." 

WE DO NOT MEAN TO ACCEPT PETITIONER'S APPARENT ARGUMENT THAT MARKET
POWER CAN BE INFERRED SIMPLY BECAUSE THE KIND OF FINANCING TERMS
OFFERED BY A LENDING COMPANY ARE "UNIQUE AND UNUSUAL."  WE DO MEAN,
HOWEVER, THAT UNIQUELY AND UNUSUALLY ADVANTAGEOUS TERMS CAN REFLECT A
CREDITOR'S UNIQUE ECONOMIC ADVANTAGES OVER HIS COMPETITORS.  /2/  SINCE
SUMMARY JUDGMENT IN ANTITRUST CASES IS DISFAVORED, POLLER, SUPRA, THE
CLAIMS OF UNIQUENESS IN THIS CASE SHOULD BE READ IN THE LIGHT MOST
FAVORABLE TO PETITIONER.  THEY COULD WELL MEAN THAT U.S. STEEL'S
SUBSIDIARY CREDIT CORP. HAD A UNIQUE ECONOMIC ABILITY TO PROVIDE 100%
FINANCING AT CHEAP RATES.  THE AFFIDAVITS SHOW THAT FOR A THREE-TO-FOUR
YEAR PERIOD NO OTHER FINANCIAL INSTITUTION IN THE LOUISVILLE AREA WAS
WILLING TO MATCH THE SPECIAL CREDIT TERMS AND RATES OF INTEREST
AVAILABLE FROM U.S. STEEL.  SINCE THE POSSIBILITY OF A DECLINE IN
PROPERTY VALUES, ALONG WITH THE DIFFICULTY OF RECOVERING FULL MARKET
VALUE IN A FORECLOSURE SALE, MAKES IT DESIRABLE FOR A CREDITOR TO
OBTAIN COLLATERAL GREATER IN VALUE THAN THE LOAN IT SECURES, THE
UNWILLINGNESS OF COMPETING FINANCIAL INSTITUTIONS IN THE AREA TO OFFER
100% FINANCING PROBABLY REFLECTS THEIR FEELING THAT THEY COULD NOT
PROFITABLY LEND MONEY ON THE RISKS INVOLVED.  U.S. STEEL'S SUBSIDIARY
CREDIT CORP., ON THE OTHER HAND, MAY WELL HAVE HAD A SUBSTANTIAL
COMPETITIVE ADVANTAGE IN PROVIDING THIS TYPE OF FINANCING BECAUSE OF
ECONOMIES RESULTING FROM THE NATIONWIDE CHARACTER OF ITS OPERATIONS. 
IN ADDITION, POTENTIAL COMPETITORS SUCH AS BANKS AND SAVINGS AND LOAN
ASSOCIATIONS MAY HAVE BEEN PROHIBITED FROM OFFERING 100% FINANCING BY
STATE OR FEDERAL LAW.  /3/  UNDER THESE CIRCUMSTANCES THE PLEADINGS AND
AFFIDAVITS SUFFICIENTLY DISCLOSE THE POSSIBILITY OF MARKET POWER OVER
BORROWERS IN THE CREDIT MARKET TO ENTITLE PETITIONER TO GO TO TRIAL ON
THIS ISSUE. 

IT MAY ALSO BE, OF COURSE, THAT THESE ALLEGATIONS WILL NOT BE
SUSTAINED WHEN THE CASE GOES TO TRIAL.  IT MAY TURN OUT THAT THE
ARRANGEMENT INVOLVED HERE SERVES LEGITIMATE BUSINESS PURPOSES AND THAT
U.S. STEEL'S SUBSIDIARY DOES NOT HAVE A COMPETITIVE ADVANTAGE IN THE
CREDIT MARKET.  BUT ON THE RECORD BEFORE US IT WOULD BE IMPOSSIBLE TO
REACH SUCH CONCLUSIONS AS A MATTER OF LAW, AND IT IS NOT OUR FUNCTION
TO SPECULATE AS TO THE ULTIMATE FINDINGS OF FACT.  WE THEREFORE
CONCLUDE THAT THE SHOWING MADE BY PETITIONER WAS SUFFICIENT ON THE
MARKET POWER ISSUE. 

BRIEF CONSIDERATION SHOULD ALSO BE GIVEN TO RESPONDENTS' ADDITIONAL
ARGUMENT THAT EVEN IF THEIR UNIQUE KIND OF FINANCING REFLECTED ECONOMIC
POWER IN THE CREDIT MARKET, AND EVEN IF A SUBSTANTIAL VOLUME OF
COMMERCE WAS AFFECTED, THE ARRANGEMENT INVOLVING CREDIT SHOULD NOT BE
HELD ILLEGAL UNDER NORMAL TIE-IN PRINCIPLES.  IN SUPPORT OF THIS,
RESPONDENTS SUGGEST THAT EVERY SALE ON CREDIT IN EFFECT INVOLVES A
TIE.  THEY ARGUE THAT THE OFFERING OF FAVORABLE CREDIT TERMS IS SIMPLY
A FORM OF PRICE COMPETITION EQUIVALENT TO THE OFFERING OF A COMPARABLE
REDUCTION IN THE CASH PRICE OF THE TIED PRODUCT.  CONSUMERS SHOULD NOT,
THEY SAY, BE DEPRIVED OF SUCH ADVANTAGEOUS SERVICES, AND THEY SUFFER NO
HARM BECAUSE THEY CAN BUY THE TANGIBLE PRODUCT WITH CREDIT OBTAINED
ELSEWHERE IF THE COMBINED PRICE OF THE SELLER'S CREDIT-PRODUCT PACKAGE
IS LESS FAVORABLE THAN THE COST OF PURCHASING THE COMPONENTS
SEPARATELY. 

ALL OF RESPONDENTS' ARGUMENTS AMOUNT ESSENTIALLY TO THE SAME CLAIM--
NAMELY, THAT THIS OPINION WILL SOMEHOW PREVENT THOSE WHO MANUFACTURE
GOODS FROM EVER SELLING THEM ON CREDIT.  BUT OUR HOLDING IN THIS CASE
WILL HAVE NO SUCH EFFECT.  THERE IS, AT THE OUTSET OF EVERY TIE-IN
CASE, INCLUDING THE FAMILIAR CASES INVOLVING PHYSICAL GOODS, THE
PROBLEM OF DETERMINING WHETHER TWO SEPARATE PRODUCTS ARE IN FACT
INVOLVED.  IN THE USUAL SALE ON CREDIT THE SELLER, A SINGLE INDIVIDUAL
OR CORPORATION, SIMPLY MAKES AN AGREEMENT DETERMINING WHEN AND HOW MUCH
HE WILL BE PAID FOR HIS PRODUCT.  IN SUCH A SALE THE CREDIT MAY
CONSTITUTE SUCH AN INSEPARABLE PART OF THE PURCHASE PRICE FOR THE ITEM
THAT THE ENTIRE TRANSACTION COULD BE CONSIDERED TO INVOLVE ONLY A
SINGLE PRODUCT.  IT WILL BE TIME ENOUGH TO PASS ON THE ISSUE OR CREDIT
SALES WHEN A CASE INVOLVING IT ACTUALLY ARISES.  SALES SUCH AS THAT ARE
A FAR CRY FROM THE ARRANGEMENT INVOLVED HERE, WHERE THE CREDIT IS
PROVIDED BY ONE CORPORATION ON CONDITION THAT A PRODUCT BE PURCHASED
FROM A SEPARATE CORPORATION, /4/  AND WHERE THE BORROWER CONTRACTS TO
OBTAIN A LARGE SUM OF MONEY OVER AND ABOVE THAT NEEDED TO PAY THE
SELLER FOR THE PHYSICAL PRODUCTS PURCHASED.  WHATEVER THE STANDARDS FOR
DETERMINING EXACTLY WHEN A TRANSACTION INVOLVES ONLY A "SINGLE
PRODUCT," WE CANNOT SEE HOW AN ARRANGEMENT SUCH AS THAT PRESENT IN THIS
CASE COULD EVER BE SAID TO INVOLVE ONLY A SINGLE PRODUCT. 

NOR DOES ANYTHING IN RESPONDENTS' ARGUMENTS SERVE TO DISTINGUISH
CREDIT FROM OTHER KINDS OF GOODS AND SERVICES, ALL OF WHICH MAY, WHEN
USED AS TYING PRODUCTS, EXTEND THE SELLER'S ECONOMIC POWER TO NEW
MARKETS AND FORECLOSE COMPETITION IN THE TIED PRODUCT.  THE ASSERTED
BUSINESS JUSTIFICATIONS FOR A TIE OF CREDIT ARE NOT ESSENTIALLY
DIFFERENT FROM THE JUSTIFICATIONS THAT CAN BE ADVANCED WHEN THE TYING
PRODUCT IS SOME OTHER SERVICE OR COMMODITY.  ALTHOUGH ADVANTAGEOUS
CREDIT TERMS MAY BE VIEWED AS A FORM OF PRICE COMPETITION IN THE TIED
PRODUCT, SO IS THE OFFER OF OTHER TYING PRODUCT ON ADVANTAGEOUS TERMS. 
IN BOTH INSTANCES, THE SELLER CAN ACHIEVE HIS ALLEGED PURPOSE, WITHOUT
EXTENDING HIS ECONOMIC POWER, BY SIMPLY REDUCING THE PRICE OF THE TIED
PRODUCT ITSELF.  /5/ 

THE POTENTIAL HARM IS ALSO ESSENTIALLY THE SAME WHEN THE TYING
PRODUCT IS CREDIT.  THE BUYER MAY HAVE THE CHOICE OF BUYING THE
TANGIBLE COMMODITY SEPARATELY, BUT AS IN OTHER CASES THE SELLER CAN USE
HIS POWER OVER THE TYING PRODUCT TO WIN CUSTOMERS THAT WOULD OTHERWISE
HAVE CONSTITUTED A MARKET AVAILABLE TO COMPETING PRODUCERS OF THE TIED
PRODUCT.  "(COMPETITION ON THE MERITS WITH RESPECT TO THE TIED PRODUCT
IS INEVITABLY CURBED."  NORTHERN PACIFIC, 356 U.S.,AT 6.  NOR CAN IT BE
ASSUMED THAT BECAUSE THE PRODUCT INVOLVED IS MONEY NEEDED TO FINANCE A
PURCHASE, THE BUYER WOULD NOT HAVE BEEN ABLE TO PURCHASE FROM ANYONE
ELSE WITHOUT THE SELLER'S ATTRACTIVE CREDIT.  A BUYER MIGHT HAVE A
STRONG PREFERENCE FOR A SELLER'S CREDIT BECAUSE IT WOULD ELIMINATE THE
NEED FOR HIM TO LAY OUT PERSONAL FUNDS, BORROW FROM RELATIVES, PUT UP
ADDITIONAL COLLATERAL, OR OBTAIN GUARANTORS, BUT ANY OF THESE
EXPEDIENTS MIGHT HAVE BEEN CHOSEN TO FINANCE A PURCHASE FROM A
COMPETING PRODUCER IF THE SELLER HAD NOT CAPTURED THE SALE BY MEANS OF
HIS TYING ARRANGEMENT. 

IN ADDITION, BARRIERS TO ENTRY IN THE MARKET FOR THE TIED PRODUCT
ARE RAISED SINCE, IN ORDER TO SELL TO CERTAIN BUYERS, A NEW COMPANY NOT
ONLY MUST BE ABLE TO MANUFACTURE THE TIED PRODUCT BUT ALSO MUST HAVE
SUFFICIENT FINANCIAL STRENGTH TO OFFER CREDIT COMPARABLE TO THAT
PROVIDED BY LARGER COMPETITORS UNDER TYING ARRANGEMENTS.  IF THE LARGER
COMPANIES HAVE ACHIEVED ECONOMIES OF SCALE IN THEIR CREDIT OPERATIONS,
THEY CAN OF COURSE EXPLOIT THESE ECONOMIES LEGITIMATELY BY LOWERING
THEIR CREDIT CHARGES TO CONSUMERS WHO PURCHASE CREDIT ONLY, BUT
ECONOMIES IN FINANCING SHOULD NOT, ANY MORE THAN ECONOMIES IN OTHER
LINES OF BUSINESS, BE USED TO EXERT ECONOMIC POWER OVER OTHER PRODUCTS
THAT THE COMPANY PRODUCES NO MORE EFFICIENTLY THAN ITS COMPETITORS. 

FOR ALL THESE REASONS WE CAN FIND NO BASIS FOR TREATING CREDIT
DIFFERENTLY IN PRINCIPLE FROM OTHER GOODS AND SERVICES.  ALTHOUGH MONEY
IS A FUNGIBLE COMMODITY-- LIKE WHEAT OR, FOR THAT MATTER, UNFINISHED
STEEL-- CREDIT MARKETS, LIKE OTHER MARKETS, ARE OFTEN IMPERFECT, AND IT
IS EASY TO SEE HOW A BIG COMPANY WITH VAST SUMS OF MONEY IN ITS
TREASURY COULD WIELD VERY SUBSTANTIAL POWER IN A CREDIT MARKET.  WHERE
THIS IS TRUE, TIE-INS INVOLVING CREDIT CAN CAUSE ALL THE EVILS THAT THE
ANTITRUST LAWS HAVE ALWAYS BEEN INTENDED TO PREVENT, CRIPPLING OTHER
COMPANIES THAT ARE EQUALLY, IF NOT MORE, EFFICIENT IN PRODUCING THEIR
OWN PRODUCTS.  THEREFORE, THE SAME INQUIRIES MUST BE MADE AS TO
ECONOMIC POWER OVER THE TYING PRODUCT AND SUBSTANTIAL EFFECT IN THE
TIED MARKET, BUT WHERE THESE FACTORS ARE PRESENT NO SPECIAL TREATMENT
CAN BE JUSTIFIED SOLELY BECAUSE CREDIT, RATHER THAN SOME OTHER PRODUCT,
IS THE SOURCE OF THE TYING LEVERAGE USED TO RESTRAIN COMPETITION. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED WITH DIRECTIONS TO LET THIS SUIT PROCEED TO TRIAL. 

              REVERSED AND REMANDED. 

/1/  SINCE THE LOAN AGREEMENTS OBLIGATED PETITIONER TO ERECT HOUSES
MANUFACTURED BY U.S. STEEL ON THE LAND ACQUIRED, THE TRIAL JUDGE
THOUGHT THE RELEVANT FORECLOSURE WAS THE PERCENTAGE OF THE UNDEVELOPED
LAND IN THE COUNTY THAT WAS NO LONGER OPEN FOR SITES ON WHICH HOMES
MADE BY COMPETING PRODUCERS COULD BE BUILT.  THIS APPARENTLY WAS AN
INSIGNIFICANT .00032%.  BUT OF COURSE THE AVAILABILITY OF NUMEROUS
VACANT LOTS ON WHICH HOUSES MIGHT LEGALLY BE ERECTED WOULD BE SMALL
CONSOLATION TO COMPETING PRODUCERS ONCE THE ECONOMIC DEMAND FOR HOUSES
HAD BEEN PRE-EMPTED BY RESPONDENTS.  IT SEEMS PLAIN THAT THE MOST
SIGNIFICANT PERCENTAGE FIGURE WITH REFERENCE TO THE TIED PRODUCT IS THE
PERCENTAGE OF ANNUAL SALES OF HOUSES, OR PREFABRICATED HOUSES, IN THE
AREA THAT WAS FORECLOSED TO OTHER COMPETITORS BY THE TYING
ARRANGEMENT. 

/2/  UNIQUENESS CONFERS ECONOMIC POWER ONLY WHEN OTHER COMPETITORS
ARE IN SOME WAY PREVENTED FROM OFFERING THE DISTINCTIVE PRODUCT
THEMSELVES.  SUCH BARRIERS MAY BE LEGAL, AS IN THE CASE OF PATENTED AND
COPYRIGHTED PRODUCTS, E.G., INTERNATIONAL SALT; LOEW'S, OR PHYSICAL, AS
WHEN THE PRODUCT IS LAND, E.G., NORTHERN PACIFIC.  IT IS TRUE THAT THE
BARRIERS MAY ALSO BE ECONOMIC, AS WHEN COMPETITORS ARE SIMPLY UNABLE TO
PRODUCE THE DISTINCTIVE PRODUCT PROFITABLY, BUT THE UNIQUENESS TEST IN
SUCH SITUATIONS IS SOMEWHAT CONFUSING SINCE THE REAL SOURCE OF ECONOMIC
POWER IS NOT THE PRODUCT ITSELF BUT RATHER THE SELLER'S COST ADVANTAGE
IN PRODUCING IT. 

/3/  SEE, E.G., FEDERAL RESERVE ACT SEC. 24, 38 STAT. 273, AS
AMENDED, 12 U.S.C. 371; 12 CFR 545.6-14(C). 

/4/  CF. PERMA LIFE MUFFLERS, 392 U.S.,AT 141-142; TIMKEN CO. V.
UNITED STATES, 341 U.S. 593, 598 (1951); KIEFER-STEWART CO. V. SEAGRAM
& SONS, 340 U.S. 211, 215 (1951); UNITED STATES V. YELLOW CAB CO., 332
U.S. 218, 227 (1947). 

/5/  WHERE PRICE REDUCTIONS ON THE TIED PRODUCT ARE MADE DIFFICULT
IN PRACTICE BY THE STRUCTURE OF THAT MARKET, THE SELLER CAN STILL
ACHIEVE HIS ALLEGED OBJECTIVE BY OFFERING OTHER KINDS OF FRINGE
BENEFITS OVER WHICH HE HAS NO ECONOMIC POWER. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE JUDICIALLY DEVELOPED PROSCRIPTION OF CERTAIN KINDS OF TYING
ARRANGEMENTS HAS BEEN COMMONLY UNDERSTOOD TO BE THIS:  AN ANTITRUST
DEFENDANT WHO TIES THE AVAILABILITY OF ONE PRODUCT TO THE PURCHASE OF
ANOTHER VIOLATES SEC. 1 OF THE SHERMAN ACT IF HE BOTH HAS SUFFICIENT
MARKET POWER IN THE TYING PRODUCT AND AFFECTS A SUBSTANTIAL QUANTITY OF
COMMERCE IN THE TIED PRODUCT.  THIS CASE FURTHER DEFINES THE DEGREE OF
MARKET POWER WHICH IS SUFFICIENT TO INVOKE THE TYING RULE.  PRIOR CASES
PROVIDE SOME GUIDANCE BUT ARE NOT DISPOSITIVE.  ADMITTEDLY, MONOPOLY
POWER OR DOMINANCE IN THE TYING MARKET, TIMES-PICAYUNE PUBLISHING CO.
V. UNITED STATES, 345 U.S. 594, 608-611 (1953), IS NOT NECESSARY; IT IS
ENOUGH IF THERE IS "SUFFICIENT ECONOMIC POWER TO IMPOSE AN APPRECIABLE
RESTRAINT ON FREE COMPETITION IN THE TIED PRODUCT,"  NORTHERN PACIFIC
R. CO. V. UNITED STATES, 356 U.S. 1, 11 (1958).  THE COURT INDICATED IN
UNITED STATES V. LOEW'S INC., 371 U.S. 38, 45 (1962), THAT THIS COULD
BE INFERRED FROM "THE TYING PRODUCT'S DESIRABILITY TO CONSUMERS OR FROM
UNIQUENESS IN ITS ATTRIBUTES."     THE COURT DOES NOT PURPORT TO
ABANDON THE GENERAL RULE THAT SOME MARKET POWER IN THE TYING PRODUCT IS
ESSENTIAL TO A SEC. 1 VIOLATION.  BUT IT APPLIES THE RULE TO PERMIT
PROSCRIPTION OF A SELLER'S EXTENSION OF FAVORABLE CREDIT TERMS
CONDITIONED ON THE PURCHASE OF AN AGREED QUANTITY OF THE SELLER'S
PRODUCT WITHOUT ANY OFFER OF PROOF THAT THE SELLER HAS ANY MARKET POWER
IN THE CREDIT MARKET ITSELF.  ALTHOUGH THE CREDIT EXTENDED WAS FOR THE
PURCHASE AND DEVELOPMENT OF LAND ON WHICH THE PURCHASED HOUSES WERE TO
BE BUILT, THE COURT'S LOGIC DICTATES THE SAME RESULT IF UNUSUALLY
ATTRACTIVE CREDIT TERMS HAD BEEN OFFERED SIMPLY FOR THE PURCHASE OF THE
HOUSES THEMSELVES.  PROSCRIPTION OF THE SALE OF GOODS ON EASY CREDIT
TERMS AS AN ILLEGAL TIE WITHOUT PROOF OF MARKET POWER IN CREDIT NOT
ONLY DEPARTS FROM ESTABLISHED DOCTRINE BUT ALSO IN MY VIEW SHOULD NOT
BE OUTLAWED AS PER SE ILLEGAL UNDER THE SHERMAN ACT.  PROVISION OF
FAVORABLE CREDIT TERMS MAY BE NOTHING MORE OR LESS THAN VIGOROUS
COMPETITION IN THE TIED PRODUCT, ON A BASIS VERY NEARLY APPROACHING THE
PRICE COMPETITION WHICH IT HAS ALWAYS BEEN THE POLICY OF THE SHERMAN
ACT TO ENCOURAGE.  MOREOVER, IT IS FAR FROM CLEAR THAT, ABSENT POWER IN
THE CREDIT MARKET, CREDIT FINANCING OF PURCHASES SHOULD BE REGARDED AS
A TIE OF TWO DISTINCT PRODUCTS ANY MORE THAN A COMMODITY SHOULD BE
VIEWED AS TIED TO ITS OWN PRICE.  SINCE PROVISION OF CREDIT BY SELLERS
MAY FACILITATE COMPETITION, SINCE IT MAY PROVIDE ESSENTIAL RISK OR
WORKING CAPITAL TO ENTREPRENEURS OR BUSINESSMEN, AND SINCE THE LOGIC OF
THE MAJORITY'S OPINION DOES AWAY IN PRACTICE WITH THE REQUIREMENT OF
SHOWING MARKET POWER IN THE TYING PRODUCT WHILE RETAINING THAT
REQUIREMENT IN FORM, THE MAJORITY'S PER SE RULE IS INAPPROPRIATE.  I
DISSENT. 

IN THIS CASE THERE IS NO OFFER TO PROVE MONOPOLY OR DOMINANCE IN THE
TYING PRODUCT-- MONEY.  AND IN NO SENSE IS THE MONEY PROVIDED TO
PETITIONER UNIQUE, EVEN THOUGH THE TERMS ON WHICH IT WAS FURNISHED AND
WAS TO BE REPAID MAY HAVE BEEN ADVANTAGEOUS, AND INDEED THE MONEY
ITSELF AVAILABLE FROM NO OTHER SOURCE ON EQUALLY GOOD TERMS.  UNITED
STATES STEEL WAS PRINCIPALLY INTERESTED IN THE SALE OF HOUSES, AND
PETITIONER IN THE ECONOMICAL DEVELOPMENT OF ITS HOUSING PROJECT. 
BEFORE CONCLUDING THAT THE FINANCING ARRANGEMENTS ON WHICH U.S. STEEL
SOLD ITS HOUSES AMOUNTED TO ANYTHING MORE THAN A PRICE REDUCTION ON THE
HOUSES, OR THAT EASY FINANCING TERMS SHOW THAT THEIR PROVIDER HAS
MARKET POWER IN THE MONEY MARKET, THE COURT SHOULD HAVE IN MIND THE
RATIONALE ON WHICH THE ILLEGALITY OF TYING ARRANGEMENTS IS BASED. 

THERE IS GENERAL AGREEMENT IN THE CASES /1/  AND AMONG COMMENTATORS
/2/  THAT THE FUNDAMENTAL RESTRAINT AGAINST WHICH THE TYING
PROSCRIPTION IS MEANT TO GUARD IS THE USE OF POWER OVER ONE PRODUCT TO
ATTAIN POWER OVER ANOTHER, OR OTHERWISE TO DISTORT FREEDOM OF TRADE AND
COMPETITION IN THE SECOND PRODUCT.  THIS DISTORTION INJURES THE BUYERS
OF THE SECOND PRODUCT, WHO BECAUSE OF THEIR PREFERENCE FOR THE SELLER'S
BRAND OF THE FIRST ARE ARTIFICIALLY FORCED TO MAKE A LESS THAN OPTIMAL
CHOICE IN THE SECOND.  AND EVEN IF THE CUSTOMER IS INDIFFERENT AMONG
BRANDS OF THE SECOND PRODUCT AND THEREFORE LOSES NOTHING BY AGREEING TO
USE THE SELLER'S BRAND OF THE SECOND IN ORDER TO GET HIS BRAND OF THE
FIRST, /3/  SUCH TYING AGREEMENTS MAY WORK SIGNIFICANT RESTRAINTS ON
COMPETITION IN THE TIED PRODUCT.  THE TYING SELLER MAY BE WORKING
TOWARD A MONOPOLY POSITION IN THE TIED PRODUCT /4/  AND, EVEN IF HE IS
NOT, THE PRACTICE OF TYING FORECLOSES OTHER SELLERS OF THE TIED PRODUCT
AND MAKES IT MORE DIFFICULT FOR NEW FIRMS TO ENTER THAT MARKET.  THEY
MUST BE PREPARED NOT ONLY TO MATCH EXISTING SELLERS OF THE TIED PRODUCT
IN PRICE AND QUALITY, BUT TO OFFSET THE ATTRACTION OF THE TYING PRODUCT
ITSELF.  EVEN IF THIS IS POSSIBLE THROUGH SIMULTANEOUS ENTRY INTO
PRODUCTION OF THE TYING PRODUCT, ENTRY INTO BOTH MARKETS IS
SIGNIFICANTLY MORE EXPENSIVE THAN SIMPLE ENTRY INTO THE TIED MARKET,
AND SHIFTING BUYING HABITS IN THE TIED PRODUCT IS CONSIDERABLY MORE
CUMBERSOME AND LESS RESPONSIVE TO VARIATIONS IN COMPETITIVE OFFERS. 
/5/  IN ADDITION TO THESE ANTICOMPETITIVE EFFECTS IN THE TIED PRODUCT,
TYING ARRANGEMENTS MAY BE USED TO EVADE PRICE CONTROL IN THE TYING
PRODUCT THROUGH CLANDESTINE TRANSFER OF THE PROFIT TO THE TIED PRODUCT;
/6/  THEY MAY BE USED AS A COUNTING DEVICE TO EFFECT PRICE
DISCRIMINATION; /7/  AND THEY MAY BE USED TO FORCE A FULL LINE OF
PRODUCTS ON THE CUSTOMER /8/  SO AS TO EXTRACT MORE EASILY FROM HIM A
MONOPOLY RETURN ON ONE UNIQUE PRODUCT IN THE LINE.  /9/ 

ALL OF THESE DISTORTIONS DEPEND UPON THE EXISTENCE OF SOME MARKET
POWER IN THE TYING PRODUCT QUITE APART FROM ANY RELATIONSHIP WHICH IT
MIGHT BEAR TO THE TIED PRODUCT.  IN THIS CASE, WHAT PROOF OF ANY MARKET
POWER IN THE TYING PRODUCT HAS BEEN ALLEGED?  ONLY THAT THE TYING
PRODUCT-- MONEY-- WAS NOT AVAILABLE ELSEWHERE ON EQUALLY GOOD TERMS,
AND PERHAPS NOT AT ALL.  LET US CONSIDER THESE POSSIBILITIES IN TURN. 

FIRST, IF ENOUGH MONEY TO PROCEED WAS AVAILABLE ELSEWHERE AND U.S.
STEEL WAS SIMPLY OFFERING CREDIT AT A LOWER PRICE, IN TERMS OF RISK OF
LOSS, REPAYMENT TERMS, AND INTEREST RATE, SURELY THIS DOES NOT
ESTABLISH THAT U.S. STEEL HAD MARKET POWER BY ANY MEASURE IN THE MONEY
MARKET.  THERE WAS NOTHING UNIQUE ABOUT U.S. STEEL'S MONEY EXCEPT ITS
LOW COST TO PETITIONER.  A LOW PRICE ON A PRODUCT IS ORDINARILY NO
REFLECTION OF MARKET POWER.  IT PROVES NEITHER THE EXISTENCE OF SUCH
POWER NOR ITS ABSENCE, ALTHOUGH ABSENCE OF POWER MAY BE THE MORE
REASONABLE INFERENCE.  ONE WHO HAS SUCH POWER BENEFITS FROM IT
PRECISELY BECAUSE IT ALLOWS HIM TO RAISE PRICES, NOT LOWER THEM, AND
ORDINARILY HE DOES SO. 

A LOW PRICE IN THE TYING PRODUCT-- MONEY, THE MOST FUNGIBLE ITEM OF
TRADE SINCE IT IS BY DEFINITION AN ECONOMIC COUNTER-- IS ESPECIALLY
POOR PROOF OF MARKET POWER WHEN UNTIED CREDIT IS AVAILABLE ELSEWHERE. 
IN THAT CASE, THE LOW PRICE OF CREDIT IS FUNCTIONALLY EQUIVALENT TO A
REDUCTION IN THE PRICE OF THE HOUSES SOLD.  SINCE THE BUYER HAS UNTIED
CREDIT AVAILABLE ELSEWHERE, HE CAN COMPARE THE HOUSES-CREDIT PACKAGE OF
U.S. STEEL AS COMPETITIVE WITH THE PRICE OF THE UNTIED CREDIT PLUS THE
COST OF HOUSES FROM ANOTHER SOURCE.  BY CUTTING THE PRICE OF HIS
HOUSES, A COMPETITOR OF U.S. STEEL CAN COMPETE WITH U.S. STEEL HOUSES
ON EQUAL TERMS SINCE U.S. STEEL'S MONEY IS NO MORE DESIRABLE TO THE
PURCHASER THAN MONEY FROM ANOTHER SOURCE EXCEPT IN POINT OF PRICE.  THE
SAME MONEY WHICH U.S. STEEL IS WILLING TO RISK OR FORGO BY PROVIDING
BETTER CREDIT TERMS IT COULD SACRIFICE BY CUTTING THE PRICE OF HOUSES. 
THERE IS NO GOOD REASON WHY U.S. STEEL SHOULD ALWAYS BE REQUIRED TO
MAKE THE PRICE CUT IN ONE FORM RATHER THAN ANOTHER, WHICH ITS PURCHASER
PREFERS. 

PROVISION OF CREDIT FINANCING BY THE SELLER OF A COMMODITY TO ITS
BUYER IS A VERY COMMON EVENT IN THE AMERICAN ECONOMY.  OFTEN THE SELLER
IS NOT WILLING TO SUPPLY CREDIT GENERALLY FOR THE BUSINESS AND PERSONAL
NEEDS OF THE PUBLIC AT LARGE, BUT RESTRICTS HIS CREDIT TO THE
PURCHASERS OF THE COMMODITY WHICH HE IS PRINCIPALLY IN THE BUSINESS OF
SELLING.  IN ALL SUCH CASES, THE COMMODITY MAY BE VIEWED AS TIED TO THE
CREDIT.  IN ALL SUCH CASES, THE MONEY ITSELF IS NO MORE DESIRABLE FROM
ONE SOURCE THAN FROM ANOTHER.  BUT IN ALL SUCH CASES, UNDER THE
MAJORITY OPINION, THE MERE FACT THAT THE CREDIT IS OFFERED ON UNIQUELY
ADVANTAGEOUS TERMS MAKES THE TRANSACTION A PER SE VIOLATION OF SEC. 1
OF THE SHERMAN ACT.  AND SO LONG AS THE BUYER HAS CHOSEN TO ACCEPT THE
SELLER'S CREDIT TERMS OVER ANY OTHERS AVAILABLE TO HIM, THE BUYER, LIKE
PETITIONER HERE, MUST HAVE VIEWED THEM AS UNIQUELY ADVANTAGEOUS TO
HIM.  THE LOGIC OF THE MAJORITY OPINION, THEN, CASTS GREAT DOUBT ON
CREDIT FINANCING BY SELLERS.  I WOULD NOT PROSCRIBE CREDIT FINANCING BY
SELLERS WHO HAD NO INDEPENDENTLY DEMONSTRABLE POWER IN THE CREDIT
MARKET.  UNLIKE THE MAJORITY, I AM UNABLE TO READ PETITIONER'S
AFFIDAVITS, THE FRUIT OF YEARS OF PRETRIAL DISCOVERY, TO OFFER ANY
INDEPENDENT PROOF WHATEVER OF SUCH MARKET POWER.  /10/ 

SECOND, ADOPTING THE OTHER ASSUMPTION, THAT SUFFICIENT CREDIT TO GO
FORWARD WITH THE ENTERPRISE WAS SIMPLY UNAVAILABLE TO PETITIONER FROM
ANY OTHER SOURCE AT ALL, THE RESULT IN THIS CASE IS EVEN WORSE.  WERE
IT NOT FOR THE CREDIT EXTENDED BY U.S. STEEL, PETITIONER WOULD HAVE
BEEN UNABLE TO CARRY OUT ITS DEVELOPMENT.  U.S. STEEL WOULD NOT HAVE
FORECLOSED ANYONE FROM SELLING HOUSES TO PETITIONER SINCE NO ONE WOULD
HAVE SOLD ANY HOUSES TO PETITIONER.  A SELLER WHO IS WILLING TO TAKE
CREDIT RISKS WHICH NO ONE ELSE FINDS ACCEPTABLE IS SIMPLY ENGAGING IN
THE HARD AND RISKY COMPETITION WHICH IT IS THE POLICY OF THE SHERMAN
ACT TO ENCOURAGE.  AND IF HE MAY NOT DO SO, THEN THOSE BUSINESSES AND
ENTREPRENEURS WHO DEPEND FOR THEIR SURVIVAL AND GROWTH OR FOR THE
INITIATION OF NEW ENTERPRISES ON THE AVAILABILITY OF CREDIT FINANCING
FROM SELLERS MAY WELL FAIL FOR LACK OF CREDIT AVAILABILITY FROM OTHER
SOURCES.  OF COURSE, IF THE CREDIT WAS UNAVAILABLE ELSEWHERE BECAUSE
U.S. STEEL WAS A MONOPOLIST OF CREDIT IN A RELEVANT MARKET-- WHICH
PETITIONER DOES NOT ASSERT-- THE TIE WOULD BE ILLEGAL.  BUT HERE IT WAS
EVIDENTLY UNAVAILABLE ELSEWHERE SIMPLY BECAUSE OTHERS WERE NOT WILLING
TO MATCH U.S. STEEL'S RELATIVELY LOW PRICE FOR ACCEPTANCE OF HIGH
RISK. 

NEITHER PETITIONER NOR THE COURT ASSERTS THAT UNDER PRIOR ANTITRUST
DOCTRINE U.S. STEEL WOULD HAVE VIOLATED SEC. 1 OF THE SHERMAN ACT OR
SEC. 3 OF THE CLAYTON ACT /11/  IF IT HAD SIMPLY CONTRACTED TO SUPPLY
ALL THE HOUSES FORTNER REQUIRED TO DEVELOP THE PARTICULAR TRACT OF LAND
INVOLVED HERE-- A REQUIREMENTS CONTRACT FOR THE DEVELOPMENT-- EVEN IF
THE PRICE FOR THE HOUSES WAS PARTICULARLY ADVANTAGEOUS.  WHAT TRIGGERS
THE APPLICATION OF THE ANTITRUST LAWS IS THE ASSERTED TYING
ARRANGEMENT, THE SALE OF ONE PRODUCT CONDITIONED ON THE PURCHASE OF
ANOTHER.  AND IT IS NOT ALL TYING TRANSACTIONS IN GENERAL BUT ONLY
THOSE WHERE LEVERAGE IN ONE MARKET HAS BEEN USED TO DISTORT ANOTHER
WHICH SO FAR HAVE BEEN HELD ILLEGAL RESTRAINTS OF TRADE.  THE BASIS FOR
THE RULE IS CLEAR WHERE THE SELLER IS DOMINANT IN THE TYING PRODUCT
MARKET, WHERE THE PRODUCT IS PATENTED, OR WHERE IT IS IN SHORT SUPPLY. 
IN THESE CASES THE RESTRAINT ON COMPETITIORS IN THE TIED PRODUCT AS
WELL AS ON BUYERS OF THE TYING PRODUCT IS REASONABLY APPARENT.  BUT I
QUESTION THAT BUYERS' ACCEPTANCE OF THE TIE-IN-- THE SIMPLE FACT THAT
THERE ARE CUSTOMERS-- WILL ALWAYS SUFFICE TO PROVE MARKET POWER IN THE
TYING PRODUCT.  WHERE THE SELLER EXERCISES NO MARKET POWER IN THE TYING
ITEM BUT BUYERS PREFER THE TIE-IN BECAUSE THE SELLER OFFERS THE TYING
PRODUCT ON FAVORABLE TERMS-- WHERE THE PRICE IS UNUSUALLY LOW OR WHERE
THE SELLER GIVES THE PRODUCT AWAY CONDITIONED ON BUYING OTHER
MERCHANDISE-- THE SELLER IN EFFECT IS MERELY COMPETING IN THE TIED
PRODUCT MARKET.  BUYERS ARE NOT BURDENED.  THEY MAY BUY BOTH TIED AND
TYING PRODUCTS ELSEWHERE ON NORMAL TERMS.  NOR ARE THE SELLER'S
COMPETITORS RESTRAINED.  THE ECONOMIC ADVANTAGE OF THE TIE-IN TO BUYERS
CAN BE MATCHED BY OTHER SELLERS OF THE TIED PRODUCT BY OFFERING LOWER
PRICES ON THAT PRODUCT.  PROMOTIONAL TIE-INS EFFECTED BY UNDER PRICING
THE TYING PRODUCT DO NOT THEMSELVES PROVE THERE IS ANY MARKET POWER TO
EXERCISE IN THAT PRODUCT MARKET, UNLESS THE ECONOMIC RESOURCES TO
WITHSTAND LOWER PROFIT MARGINS AND THE WILLINGNESS TO COMPETE IN THIS
MANNER ARE THEMSELVES SUSPECT.  IF THEY ARE, HOWEVER, THEY SHOULD AS
SURELY TAINT AND MUFFLE HARD PRICE COMPETITION IN THE TIED MARKET
ITSELF, A RESULT WHICH, SHORT OF A SEC. 2 VIOLATION, IT WOULD BE
DIFFICULT TO REACH UNDER THE SHERMAN ACT. 

I CANNOT JOIN SUCH A COMPLETE EVISCERATION OF THE REQUIREMENT THAT
MARKET POWER IN THE TYING PRODUCT BE SHOWN BEFORE A TIE-IN BECOMES
ILLEGAL UNDER SEC. 1.  CERTAINLY IT IS UNNECESSARY TO ERECT A SEC. 1
PER SE BAN ON PROMOTIONAL TIE-INS IN ORDER TO PROTECT THE TIED PRODUCT
MARKET.  IF THE RESULTING EXCLUSION OF COMPETITORS IS OF SUFFICIENT
SIGNIFICANCE TO THREATEN COMPETITION IN THAT MARKET, THE TRANSACTION
MAY BE REACHED AS A REQUIREMENTS CONTRACT UNDER SEC. 3 OF THE CLAYTON
ACT.  /12/  IF THE PROMOTIONAL TIE IS IN EFFECT PRICE DISCRIMINATION,
THAT TOO CAN BE EXAMINED UNDER STATUTES DESIGNED FOR THAT PURPOSE. 
/13/  MOREOVER, THE TRANSACTION COULD BE DEALT WITH AS AN UNFAIR METHOD
OF COMPETITION UNDER SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, 38
STAT. 719, AS AMENDED, 15 U.S.C. 45.  FOR EXAMPLE, IN HASTINGS MFG. CO.
V. FTC, 153 F.2D 253 (C.A. 6TH CIR.), CERT. DENIED, 328 U.S. 853
(1946), IT WAS, INTER ALIA, HELD AN UNFAIR METHOD OF COMPETITION FOR A
SELLER OF PISTON RINGS, RANKING SIXTH OR SEVENTH IN THE INDUSTRY, TO
ATTEMPT TO OBTAIN EXCLUSIVE DEALERS OR PREFERENTIAL DEALERS BY
GUARANTEEING PROFITS TO THE DEALERS AND MAKING LOANS TO THEM, TIED TO
THE PURCHASE OF THE PISTON RINGS.  RELYING ON THE EXPERTISE OF THE FTC
AND THE PRECEDENTS OF THIS COURT, THE COURT OF APPEALS CONCLUDED THAT
ALTHOUGH IT "IS NOT ILLEGAL FOR A MANUFACTURER TO FINANCE HIS RETAIL
OUTLETS," 153 F.2D, AT 257 (A PROPOSITION CALLED INTO QUESTION BY
TODAY'S DECISION) TYING THIS TO EXCLUSIVE OR PREFERENTIAL DEALING WAS
AN UNFAIR METHOD OF COMPETITION. 

THE PRINCIPAL EVIL AT WHICH THE PROSCRIPTION OF TYING AIMS IS THE
USE OF POWER IN ONE MARKET TO ACQUIRE POWER IN, OR OTHERWISE DISTORT, A
SECOND MARKET.  THIS EVIL SIMPLY DOES NOT EXIST IF THERE IS NO POWER IN
THE FIRST MARKET.  THE FIRST MARKET HERE IS MONEY, A COMPLETELY
FUNGIBLE ITEM.  I WOULD NOT APPLY A PER SE RULE HERE WITHOUT
INDEPENDENT PROOF OF MARKET POWER.  CUTTING PRICES IN THE CREDIT MARKET
IS MORE LIKELY TO REFLECT A COMPETITIVE ATTEMPT TO OFFSET THE MARKET
POWER OF OTHERS IN THE TIED PRODUCT THAN IT IS TO REFLECT EXISTING
MARKET POWER IN THE CREDIT MARKET.  THOSE WITH REAL POWER DO NOT OFFER
UNIQUELY ADVANTAGEOUS DEALS TO THEIR CUSTOMERS; THEY RAISE PRICES. 
THIS IS NOT, OF COURSE, TO SAY THAT IF MARKET POWER WERE PROVED IN THE
TYING PRODUCT THE PER SE RULE WOULD BE INAPPLICABLE, OR THAT IT IS
NECESSARILY IMPOSSIBLE TO PROVE MARKET POWER IN THE CREDIT MARKET. 
THERE MAY BE SO FEW SUPPLIERS OF CREDIT IN A CERTAIN RELEVANT MARKET,
FOR EXAMPLE, THAT THEY HAVE THE POWER AMONG THEM TO MANIPULATE THE
PRICE AND TERMS OF CREDIT, NOT NECESSARILY BY CONSPIRACY, BUT BY
PARALLEL BEHAVIOR.  THROUGH PROOF THAT SUCH A SITUATION EXISTED, OR
THROUGH PROOF OF SOME OTHER SORT, AN ANTITRUST PLAINTIFF MIGHT BE ABLE
TO SHOW MARKET POWER IN THE CREDIT MARKET, AND IF THIS WERE COUPLED
WITH A TIE I WOULD CONSIDER THE ARRANGEMENT PER SE ILLEGAL UNDER
CONVENTIONAL ANTITRUST DOCTRINE.  HOWEVER, I DO NOT CONSIDER
PETITIONER'S ALLEGATIONS THAT U.S. STEEL LOWERED ITS PRICE OF CREDIT
SUFFICIENT TO ESTABLISH MARKET POWER IN CREDIT AND I CAN FIND NO OFFER
BY PETITIONER OF THE NECESSARY SUPPLEMENTARY PROOF. 

/1/  E.G., UNITED STATES V. LOEW'S INC., 371 U.S. 38, 44-45 (1962);
NORTHERN PACIFIC R. CO. V. UNITED STATES, 356 U.S. 1, 6-7 (1958); TIMES
PICAYUNE PUB. CO. V. UNITED STATES, 345 U.S. 594, 611 (1953). 

/2/  E.G., REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO
STUDY THE ANTITRUST LAWS 145 (1955); AUSTIN, THE TYING ARRANGEMENT:  A
CRITIQUE AND SOME NEW THOUGHTS, 1967 WIS.L.REV.  88; BOWMAN, TYING
ARRANGEMENTS AND THE LEVERAGE PROBLEM, 67 YALE L.J. 19 (1957); DAY,
EXCLUSIVE DEALING, TYING AND RECIPROCITY-- A REAPPRAISAL, 29 OHIO
ST.L.J. 539, 540-541 (1968); TURNER, THE VALIDITY OF TYING ARRANGEMENTS
UNDER THE ANTITRUST LAWS, 72 HARV.L.REV.  50, 60-61 (1958). 

/3/  THEORETICALLY, THE TIE MAY DO THE TIER LITTLE GOOD UNLESS THE
BUYER IS IN THAT POSITION.  EVEN IF THE SELLER HAS A COMPLETE MONOPOLY
IN THE TYING PRODUCT, THIS IS THE CASE.  THE MONOPOLIST CAN EXACT THE
MAXIMUM PRICE WHICH PEOPLE ARE WILLING TO PAY FOR HIS PRODUCT.  BY
DEFINITION, IF HIS PRICE WENT UP HE WOULD LOSE CUSTOMERS.  IF HE THEN
REFUSES TO SELL THE TYING PRODUCT WITHOUT THE TIED PRODUCT, AND RAISES
THE PRICE OF THE TIED PRODUCT ABOVE MARKET, HE WILL ALSO LOSE
CUSTOMERS.  THE TYING LINK WORKS NO MAGIC.  HOWEVER, DIFFICULTY IN
EXTRACTING THE FULL MONOPOLY PROFIT WITHOUT THE TIE, BURSTEIN, A THEORY
OF FULL-LINE FORCING, 55 NW.U.L.REV.  62 (1960), OR THE MARGINAL
ADVANTAGE OF A GUARANTEED FIRST REFUSAL FROM OTHERWISE INDIFFERENT
CUSTOMERS OF THE TIED PRODUCT, OR OTHER ADVANTAGES MENTIONED IN THE
TEXT, MAY MAKE THE TIE BENEFICIAL TO ITS ORIGINATOR. 

/4/  IF THE MONOPOLIST USES HIS MONOPOLY PROFITS IN THE FIRST MARKET
TO UNDERWRITE SALES BELOW MARKET PRICE IN THE SECOND, HIS MONOPOLY
BUSINESS BECOMES LESS PROFITABLE.  THERE REMAINS AN INCENTIVE TO DO SO
NONETHELESS WHEN HE THINKS HE CAN OBTAIN A MONOPOLY IN THE TIED PRODUCT
AS WELL, PERMITTING HIM LATER TO RAISE PRICES WITHOUT FEAR OF ENTRY TO
RECOUP THE MONOPOLY PROFIT HE HAS FOREGONE.  BUT JUST AS THE FIRM WHOSE
DEEP POCKET STEMS FROM MONOPOLY PROFITS IN THE TYING PRODUCT MAY MAKE
THIS TAKEOVER, SO MAY ANYONE ELSE WITH A DEEP POCKET, FROM WHATEVER
SOURCE. 

/5/  EVEN WHEN THE TERMS OF THE TIE ALLOW A COMPETITOR TO OBTAIN THE
BUSINESS IN THE TIED PRODUCT SIMPLY BY OFFERING A PRICE LOWER THAN,
RATHER THAN EQUAL TO, THE TIER'S, THE COURT HAS FOUND SUFFICIENT
RESTRICTION IN THE TIED PRODUCT, AS IN THE NORTHERN PACIFIC CASE. 

/6/  BOWMAN, TYING ARRANGEMENTS AND THE LEVERAGE PROBLEM, 67 YALE
L.J. 19, 21-23 (1957). 

/7/  ID., AT 23-24. 

/8/  BURSTEIN, A THEORY OF FULL-LINE FORCING, 55 NW.U.L.REV.62
(1960). 

/9/  TIE-INS MAY ALSO AT TIMES BE BENEFICIAL TO THE ECONOMY.  APART
FROM THE JUSTIFICATIONS DISCUSSED IN THE TEXT ARE THE FOLLOWING.  THEY
MAY FACILITATE NEW ENTRY INTO FIELDS WHERE ESTABLISHED SELLERS HAVE
WEDDED THEIR CUSTOMERS TO THEM BY TIES OF HABIT AND CUSTOM.  BROWN SHOE
CO. V. UNITED STATES, 370 U.S. 294, 330 (1962); NOTE, NEWCOMER
DEFENSES:  REASONABLE USE OF TIE-INS, FRANCHISES, TERRITORIALS, AND
EXCLUSIVES, 18 STAN.L.REV.  457 (1966).  THEY MAY PERMIT CLANDESTINE
PRICE CUTTING IN PRODUCTS WHICH OTHERWISE WOULD HAVE NO PRICE
COMPETITION AT ALL BECAUSE OF FEAR OF RETALIATION FROM THE FEW OTHER
PRODUCERS DEALING IN THE MARKET.  THEY MAY PROTECT THE REPUTATION OF
THE TYING PRODUCT IF FAILURE TO USE THE TIED PRODUCT IN CONJUNCTION
WITH IT MAY CAUSE IT TO MISFUNCTION.  COMPARE INTERNATIONAL BUSINESS
MACHINES CORP. V. UNITED STATES, 298 U.S. 131, 138-140 (1936), AND
STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293, 306 (1949), WITH PICK
MFG. CO. V. GENERAL MOTORS CORP., 80 F.2D 641 (C.A. 7TH CIR. 1935),
AFF'D, 299 U.S. 3 (1936).  AND, IF THE TIED AND TYING PRODUCTS ARE
FUNCTIONALLY RELATED, THEY MAY REDUCE COSTS THROUGH ECONOMIES OF JOINT
PRODUCTION AND DISTRIBUTION.  THESE BENEFITS WHICH MAY FLOW FROM TIE
INS, THOUGH PERHAPS IN SOME CASES A POTENTIAL BASIS FOR AN AFFIRMATIVE
DEFENSE, WERE NOT SUFFICIENT TO AVOID THE IMPOSITION OF A PER SE
PROSCRIPTION, ONCE MARKET POWER HAS BEEN DEMONSTRATED.  BUT IN
DETERMINING WHETHER EVEN THE MARKET-POWER REQUIREMENT SHOULD BE
ELIMINATED, AS THE LOGIC OF THE MAJORITY OPINION WOULD DO, EXTENDING
THE PER SE RULE TO ABSOLUTE DIMENSIONS, THE FACT THAT TIE-INS ARE NOT
ENTIRELY UNMITIGATED EVILS SHOULD BE BORNE IN MIND. 

/10/  I AGREE WITH THE MAJORITY THAT THE AFFIDAVITS ARE NOT
INCONSISTENT WITH A "POSSIBILITY OF MARKET POWER" AND THAT SUCH POWER
MIGHT BE SHOWN BY SHOWING CERTAIN KINDS OF "UNIQUE ECONOMIC ABILITY." 
BUT I CANNOT SEE HOW PETITIONER OFFERS TO PROVE THIS, ALTHOUGH BY
TAKING JUDICIAL NOTICE OF THE POSSIBILITY THAT U.S. STEEL MAY HAVE
OPERATED FREE OF LEGAL RESTRAINTS ON OTHER LENDERS OTHERWISE WILLING TO
PROVIDE 100% FINANCING-- A POSSIBILITY NOT MENTIONED BY PETITIONER--
THE MAJORITY SUGGESTS TO PETITIONER AN ELEMENT OF THE SORT OF DETAILED
DESCRIPTION OF ONE FACET OF THE CREDIT MARKET WHICH, WITH MUCH MORE
INFORMATION ABOUT THE WHOLE OF THE MARKET, WOULD BE RELEVANT.  BUT THIS
WAS NOT THE BASIS ON WHICH PETITIONER OFFERED TO GO TO TRIAL AND I
WOULD NOT REMAND FOR TRIAL EVEN UNDER THE APPLICABLE POLLER STANDARD. 

/11/  38 STAT. 731, 15 U.S.C. 14. 

/12/  THE ARRANGEMENTS PROSCRIBED BY SEC. 3 RELATE ONLY TO "GOODS,
WARES, MERCHANDISE, MACHINERY, SUPPLIES, OR OTHER COMMODITIES . . . ." 
38 STAT. 731, 15 U.S.C. 14. 

/13/  ROBINSON-PATMAN PRICE DISCRIMINATION ACT, 49 STAT. 1526, AS
AMENDED, 15 U.S.C. 13 ET SEQ. 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING 

I SHARE MY BROTHER WHITE'S INABILITY TO AGREE WITH THE MAJORITY IN
THIS CASE, AND, IN GENERAL, I SUBSCRIBE TO HIS OPINION.  I ADD THIS
SEPARATE STATEMENT OF THE REASONS FOR MY DISSENT. 

THE FACTS OF THIS CASE ARE MATERIALLY DIFFERENT FROM ANY TYING CASE
THAT THIS COURT HAS HERETOFORE DECIDED.  THE TYPING DOCTRINE ORIGINATED
IN SITUATIONS WHERE THE SELLER OF PRODUCT A OFFERS IT FOR SALE ONLY ON
THE CONDITION THAT THE BUYER ALSO AGREE TO BUY PRODUCT B FROM THE
SELLER.  IN INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392
(1947), FOR EXAMPLE, THE COMPANY LEASED ITS PATENTED MACHINES ON THE
CONDITION THAT THE LESSEE AGREE TO USE ONLY INTERNATIONAL'S SALT
PRODUCTS IN THE MACHINES.  IN NORTHERN PACIFIC R. CO. V. UNITED STATES,
356 U.S. 1 (1958), THE RAILROAD LEASED LAND FROM ITS VAST HOLDINGS ON
CONDITION THAT THE LESSEE ACCEPT "PREFERENTIAL ROUTING" CLAUSES
COMPELLING THE LESSEE TO SHIP ON THE RAILROAD'S LINES ALL COMMODITIES
PRODUCED OR MANUFACTURED ON THE LAND UNLESS ANOTHER RAILROAD OFFERED
MORE FAVORABLE TERMS. 

ALTHOUGH THE TYING DOCTRINE ORIGINATED UNDER THE SPECIFIC LANGUAGE
OF SEC. 3 OF THE CLAYTON ACT, NORTHERN PACIFIC WAS NECESSARILY A
SHERMAN ACT CASE, BECAUSE THE CLAYTON ACT PROVISION APPLIES ONLY TO
"GOODS, WARES, MERCHANDISE, MACHINERY, SUPPLIES, OR OTHER COMMODITIES,"
AND NOT TO LAND.  BUT NORTHERN PACIFIC, IN EFFECT, APPLIED THE SAME
STANDARDS TO TYING ARRANGEMENTS UNDER THE SHERMAN ACT AS UNDER THE
CLAYTON ACT, ON THE THEORY THAT THE ANTI-COMPETITIVE EFFECT OF A TIE-IN
WAS SUCH AS TO MAKE THE DIFFERENCE IN LANGUAGE IN THE TWO STATUTES
IMMATERIAL.  THE PRESENT CASE, LIKE NORTHERN PACIFIC, IS ALSO
EXCLUSIVELY A SHERMAN ACT PROCEEDING.  BUT, HERE, U.S. STEEL IS NOT
SELLING OR LEASING LAND SUBJECT TO AN AGREEMENT THAT ITS PREFABRICATED
HOUSES BE USED THEREON.  IF THESE WERE THE FACTS, AND IF U.S. STEEL
CONTROLLED ENOUGH LAND WITHIN AN ECONOMICALLY DEMARCATED AREA OR
"MARKET," HOWEVER DEFINED, THE CASE MIGHT WELL BE GOVERNED BY NORTHERN
PACIFIC.  BUT, HERE, U.S. STEEL IS NOT SELLING OR PROVIDING LAND.  IT
IS SELLING PREFABRICATED STEEL HOUSES TO BE ERECTED IN A SUBDIVISION
AND IT IS PROVIDING FINANCING FOR THE LAND ACQUISITION, IMPROVEMENT,
DEVELOPMENT, AND ERECTION COSTS.  MOST OF THE FINANCING IS RELATED NOT
TO THE LAND COST BUT TO THE PURCHASE AND INSTALLATION OF THE HOUSES. 

U.S. STEEL NEITHER OWNED NOR CONTROLLED ANY OF THE LAND INVOLVED IN
THE VENTURE.  ON THE CONTRARY, THE BUILDING LOTS CONSTITUTING THE
SUBDIVISION ON WHICH THE HOUSES WERE TO BE BUILT WERE OWNED BY ANOTHER
COMPANY OF WHICH THE PRINCIPAL OWNER WAS MR. FORTNER, WHO OWNED THE
PETITIONER.  NOR IS U.S. STEEL SELLING CREDIT IN ANY GENERAL SENSE. 
THE FINANCING WHICH IT AGREES TO PROVIDE IS SOLELY AND ENTIRELY
ANCILLARY TO ITS SALE OF HOUSES.  UNDER CONTRACT TERMS OF A FAMILIAR
SORT IN SUBDIVISION DEVELOPMENT, THE CREDIT ADVANCES ARE GEARED TO
PROGRESSIVE STAGES OF THE SUBDIVISION DEVELOPMENT AND THE PURCHASE,
ERECTION, AND RESALE OF THE HOUSES. 

U.S. STEEL APPROACHED THE PETITIONER SEEKING TO SELL IT
PREFABRICATED STEEL HOUSES TO BE ERECTED ON THE LAND WHICH MR.
FORTNER'S OTHER COMPANY OWNED.  IN OCTOBER 1960, AFTER LENGTHY
DISCUSSIONS, U.S. STEEL OFFERED, THROUGH ITS CREDIT CORPORATION, TO
LEND PETITIONER ABOUT $2,000,000.  THIS SUM WAS TO BE SECURED BY
MORTGAGES ON THE LOTS.  THE MORTGAGE NOTES CARRIED 6% INTEREST, AND
PETITIONER ALSO AGREED TO PAY A "SERVICE FEE" OF 1/2 OF 1% OF THE
PRINCIPAL AMOUNT OF THE NOTES.  PROVISIONS WERE MADE TO INSURE THAT THE
FUNDS WOULD BE PROGRESSIVELY ADVANCED AND USED FOR LAND ACQUISITION
(FROM MR. FORTNER'S OTHER COMPANY), FOR DEVELOPMENT AND IMPROVEMENT OF
THE AREA PREPARATORY TO CONSTRUCTION, AND FOR THE PURCHASE AND ERECTION
OF THE HOUSES THEMSELVES.  PETITIONER WAS OBLIGATED TO ERECT ON EACH
LOT A PREFABRICATED HOUSE MANUFACTURED BY U.S. STEEL.  OF THE TOTAL OF
ABOUT $2,000,000 TO BE ADVANCED, $1,700,000 WAS TO BE DISBURSED AGAINST
PURCHASE AND INSTALLATION OF THE HOUSES FROM U.S. STEEL AND THE BALANCE
FOR LAND ACQUISITION AND DEVELOPMENT. 

THE COURT HOLDS THAT THIS WAS A "TYING" AGREEMENT, AND THAT,
THEREFORE, THE EXTRAORDINARILY ONEROUS INCIDENTS OF PER SE ILLEGALITY
WHICH THIS COURT HAS ATTACHED TO "TYING" AGREEMENTS MUST APPLY HERE AS
WELL. 

I CANNOT AGREE.  THIS IS A SALE OF A SINGLE PRODUCT WITH THE
INCIDENTAL PROVISION OF FINANCING.  IT IS NOT A SALE OF ONE PRODUCT ON
CONDITION THAT THE BUYER WILL NOT DEAL WITH COMPETITORS FOR ANOTHER
PRODUCT OR WILL BUY THE OTHER PRODUCT EXCLUSIVELY FROM THE SELLER. 

AS MY BROTHER WHITE SHOWS, TO TREAT THE FINANCING OF THE HOUSING
DEVELOPMENT AS A "TYING" PRODUCT FOR THE HOUSES IS TO DISTORT THE
DOCTRINE AND TO DEPART FROM THE REASONS FOR ITS EXISTENCE.  SUCH AN
EXTENSION OF THE TYING DOCTRINE ENTIRELY DEPARTS FROM THE FACTUAL
PATTERN WHICH IS DESCRIBED IN SEC. 3 OF THE CLAYTON ACT AND WHICH HAS
BEEN THE BASIS OF THIS COURT'S EXTENSION OF THE DOCTRINE TO THE SHERMAN
ACT AND ITS DEVELOPMENT OF THE RULE THAT SUCH TYING ARRANGEMENTS ARE
ILLEGAL ON A PER SE BASIS-- I.E., WITHOUT ANY SHOWING THAT THEY
CONSTITUTE AN UNREASONABLE RESTRAINT OF TRADE OR TEND TO CREATE A
MONOPOLY.  THE COURT HAS ESTABLISHED THIS RULE BECAUSE THE KIND OF
TYING ARRANGEMENT AT ISSUE IN PRIOR CASES INVOLVED THE USE OF A
LEVERAGE POSITION IN THE TYING PRODUCT-- THE PATENTED MACHINE, THE
COPYRIGHTED FILM, THE UNIQUE LAND-- TO FORCE THE BUYER TO PURCHASE THE
TIED PRODUCT.  TO APPLY THIS RULE TO A SITUATION WHERE THE ONLY
"LEVERAGE" IS A LOWER PRICE FOR THE ARTICLE SOLD OR MORE ADVANTAGEOUS
FINANCING OR CREDIT TERMS FOR THE ARTICLE SOLD AND FOR ANCILLARY COSTS
CONNECTED WITH THE SALE IS TO DISTORT THE DOCTRINE, AND, INDEED, TO
CONVERT IT INTO AN INSTRUMENT WHICH PENALIZES PRICE COMPETITION FOR THE
ARTICLE THAT IS SOLD. 

IT IS, OF COURSE, NOT INCONCEIVABLE THAT A CASE MIGHT ARISE WHERE
SEC. 1 OR SEC. 2 OF THE SHERMAN ACT WOULD OUTLAW A COMBINATION OF SALE
AND CREDIT ON A SPECIFIC SHOWING OF MARKET POWER AND ANTICOMPETITIVE
EFFECT.  IT IS ALSO POSSIBLE THAT SUCH A COMBINATION MIGHT, IN SOME
SITUATIONS, CONSTITUTE "UNFAIR METHODS OF COMPETITION" IN VIOLATION OF
SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, OR PRICE DISCRIMINATION OR
FURNISHING SERVICES ON DISCRIMINATORY TERMS, IN VIOLATION OF SEC. 2 OF
THE CLAYTON ACT, AS MY BROTHER WHITE SUGGESTS.  THE MAJORITY, HOWEVER,
DOES NOT RELY ON ANY SUCH ANALYSIS OF THE ACTUALITIES OF MARKET POWER
OR ANTICOMPETITIVE EFFECT, BUT SWEEPS THIS KIND OF CREDIT ARRANGEMENT
WITHIN THE PER SE BAN.  /1/ 

THE EFFECT OF THIS NOVEL EXTENSION-- THIS DISTORTION, AS I VIEW IT--
OF THE TYING DOCTRINE MAY BE VAST AND DESTRUCTIVE.  IT IS COMMON IN OUR
ECONOMY FOR A SELLER TO EXTEND FINANCING TO A DISTRIBUTOR OR FRANCHISEE
TO ENABLE HIM TO PURCHASE AND HANDLE THE SELLER'S GOODS AT RETAIL, TO
RENT RETAIL FACILITIES, TO ACQUIRE FIXTURES OR MACHINERY FOR SERVICE TO
CUSTOMERS IN CONNECTION WITH DESTRUCTION OF THE SELLER'S GOODS, OR, AS
HERE, TO PREPARE THE LAND FOR AND TO ACQUIRE AND ERECT THE SELLER'S
HOUSES FOR SALE TO THE PUBLIC.  IT IS HARDLY CONCEIVABLE, EXCEPT FOR
TODAY'S OPINION OF THE COURT, THAT EXTENSION OF SUCH CREDIT AS A PART
OF A GENERAL SALE TRANSACTION OR DISTRIBUTION METHOD COULD BE REGARDED
AS A "TYING" OF THE SELLER'S GOODS TO THE CREDIT, SO THAT WHERE THE
BUSINESSMAN RECEIVING THE CREDIT AGREES TO HANDLE THE SELLER-LENDER'S
PRODUCT, THE ARRANGEMENT IS PER SE UNLAWFUL MERELY BECAUSE THE AMOUNT
OR TERMS OF THE CREDIT WERE MORE FAVORABLE THAN COULD BE OBTAINED FROM
BANKING INSTITUTIONS IN THE AREA.  ARRANGEMENTS OF THIS SORT RUN
THROUGHOUT THE ECONOMY.  THEY FREQUENTLY, AND PERHAPS
CHARACTERISTICALLY, REPRESENT AN INDISPENSABLE METHOD OF FINANCING
DISTRIBUTIVE AND SERVICE TRADES, AND NOT UNTIL TODAY HAS IT BEEN HELD
THAT THEY ARE TYING ARRANGEMENTS AND THEREFORE PER SE UNLAWFUL.  CF.
STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293, 315, 321 (1949)
(SEPARATE OPINION OF DOUGLAS, J., AND DISSENTING OPINION OF JACKSON,
J.).     IN THE PRESENT CASE IN EVERY RESPECT, THE PROVISION OF CREDIT
FOR CONSTRUCTION OF THE HOUSES AND OTHER ASSOCIATED COSTS OF DEVELOPING
THE SUBDIVISION, WAS, FROM U.S. STEEL'S POINT OF VIEW, ANCILLARY AND
SUBORDINATED TO THE SALE OF THE HOUSES.  THE CREDIT CORPORATION DID NOT
OPERATE AT A LOSS, BUT ITS PROFIT WAS COMPARATIVELY LOW.  PROVISION OF
SPECIAL FINANCING TO THE PROSPECTIVE PURCHASER OF PREFABRICATED HOUSES
BY THE CREDIT CORPORATION WAS INTIMATELY AND EXCLUSIVELY RELATED TO THE
END OBJECT OF THE SALE OF THE HOUSES BY THE HOMES DIVISION.  IT WAS NOT
A SEPARATE ITEM OF "SALE." 

THIS PATTERN IS BY NO MEANS LIMITED TO THE PROVISIONS OF FINANCING,
NOR CAN THE IMPACT OF THE MAJORITY'S OPINION BE SO LIMITED.  ALMOST ALL
MODERN SELLING INVOLVES PROVIDING SOME ANCILLARY SERVICES IN CONNECTION
WITH MAKING THE SALE-- DELIVERY, INSTALLATION, SUPPLYING FIXTURES,
SERVICING, TRAINING OF THE CUSTOMER'S PERSONNEL IN USE OF THE MATERIAL
SOLD, FURNISHING DISPLAY MATERIAL AND SALES AIDS, EXTENSION OF CREDIT. 
CUSTOMARILY-- INDEED ALMOST INVARIABLY-- THE SELLER OFFERS THESE
ANCILLARY SERVICES ONLY IN CONNECTION WITH THE SALE OF HIS OWN
PRODUCTS, AND THEY ARE OFTEN OFFERED WITHOUT COST OR AT BARGAIN RATES. 
IT IS POSSIBLE THAT IN SOME SITUATIONS, SUCH ARRANGEMENTS COULD BE USED
TO RESTRAIN COMPETITION OR MIGHT HAVE THAT EFFECT, BUT TO CONDEMN THEM
OUT-OF-HAND UNDER THE "TYING" RUBRIC, IS, I SUGGEST, TO USE THE
ANTITRUST LAWS THEMSELVES AS AN INSTRUMENT IN RESTRAINT OF
COMPETITION. 

FOR THESE REASONS, I DISSENT. 

/1/  THE CASE IS REMANDED FOR TRIAL.  I FIND IT DIFFICULT TO LEARN
FROM THE MAJORITY OPINION JUST WHAT IS TO BE DETERMINED AT THAT TRIAL. 
SOME PARTS OF THE DISCUSSION SUGGEST THAT PETITIONER MUST ESTABLISH
THAT U.S. STEEL HAD THE MARKET POWER OVER CREDIT BY SHOWING FACTS IN NO
WAY SUGGESTED AT THIS STAGE BY THE PLEADINGS.  AT ANOTHER POINT THE
MAJORITY EVEN SUGGESTS THAT IF U.S. STEEL CAN SHOW "LEGITIMATE BUSINESS
PURPOSES" AND THE ABSENCE OF "COMPETITIVE ADVANTAGE" (ANTE, AT 506) IN
THE CREDIT MARKET, IT WILL HAVE MADE OUT A DEFENSE.  BUT IN AN EARLIER
PART OF THE OPINION, THE MAJORITY SAYS EXPLICITLY THAT "IT IS CLEAR
THAT PETITIONER RAISED QUESTIONS OF FACT WHICH, IF PROVED AT TRIAL,
WOULD BRING THIS TYING ARRANGEMENT WITHIN THE SCOPE OF THE PER SE
DOCTRINE."  (ANTE, AT 500-501).  IF IT IS THIS SENTENCE WHICH
DETERMINES THE RANGE OF ISSUES OPEN ON REMAND THERE WILL BE NO
EXAMINATION AT THE TRIAL OF THE BUSINESS OR ECONOMIC BACKGROUND OF THE
CREDIT ARRANGEMENTS HERE ATTACKED OR OF THE EFFECTS, IF ANY, OF THIS
ARRANGEMENT ON COMPETITION IN THE PREFABRICATED HOUSE MARKET.  ALL
PETITIONER WILL NEED TO DO IS SHOW THAT U.S. STEEL DID INDEED CONDITION
THE EXTENSION OF ITS SUBSIDIARY'S CREDIT ON AN AGREEMENT TO PURCHASE
U.S. STEEL PREFABRICATED HOUSES AND IT WILL HAVE DEMONSTRATED THE
AUTOMATIC ILLEGALITY OF THE CREDIT ARRANGEMENT. 

KENNETH L. ANDERSON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS A. SCOTT HAMILTON, JR. 

MACDONALD FLINN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE ALBERT F. REUTLINGER, L. L. LEWIS, AND WILLIAM H. BUCHANAN. 

..END :






















KIRKPATRICK V. PREISLER, 394 U.S. 526 


       KIRKPATRICK, SECRETARY OF STATE OF MISSOURI, ET AL. V.

           PREISLER ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

DISTRICT OF MISSOURI. 

        NO. 30.  ARGUED JANUARY 13, 1969.--

        DECIDED APRIL 7, 1969.  /1/ 


MISSOURI'S 1967 CONGRESSIONAL REDISTRICTING STATUTE CREATED DISTRICTS
WHICH VARIED FROM THE IDEAL, BASED ON 1960 CENSUS FIGURES, BY 12,260
(2.84%) BELOW TO 13,542 (3.13%) ABOVE.  THE DISTRICT COURT FOUND THAT
THE STATE LEGISLATURE HAD NOT RELIED ON THE CENSUS REPORTS BUT USED
LESS ACCURATE DATA, THAT IT HAD REJECTED A PLAN WITH SMALLER VARIANCES,
AND THAT BY SIMPLY SWITCHING SOME COUNTIES FROM ONE DISTRICT TO ANOTHER
IT WOULD HAVE PRODUCED A PLAN WITH MARKEDLY REDUCED VARIANCES, AND
ACCORDINGLY HELD THAT THE STATUTE DID NOT MEET THE CONSTITUTIONAL
STANDARD OF EQUAL REPRESENTATION "AS NEARLY AS PRACTICABLE" AND THAT
THE STATE FAILED TO PROVIDE ACCEPTABLE JUSTIFICATION FOR THE
VARIANCES.  HELD: 

1.  ART. I, SEC. 2, REQUIRES THAT STATES CREATE CONGRESSIONAL
DISTRICTS WHICH PROVIDE EQUAL REPRESENTATION FOR EQUAL NUMBERS OF
PEOPLE WITH "ONLY THE LIMITED POPULATION VARIANCES WHICH ARE
UNAVOIDABLE DESPITE A GOOD-FAITH EFFORT TO ACHIEVE ABSOLUTE EQUALITY,
OR FOR WHICH JUSTIFICATION IS SHOWN."  PP. 530-532. 

(A) THE ESTABLISHMENT OF AN ACCEPTABLE DE MINIMIS VARIANCE WOULD BE
ARBITRARY, INCONSISTENT WITH THE "AS NEARLY AS PRACTICABLE" STANDARD
COMMANDED BY ART. I, SEC. 2, AND WOULD ENCOURAGE LEGISLATORS TO STRIVE
FOR THE DE MINIMIS RANGE RATHER THAN FOR EQUALITY.  P. 531. 

(B) THE POPULATION VARIANCES AMONG THE MISSOURI CONGRESSIONAL
DISTRICTS WERE NOT UNAVOIDABLE.  PP. 531-532. 

2.  UNLESS POPULATION VARIANCES AMONG THE DISTRICTS ARE SHOWN TO
HAVE RESULTED DESPITE THE STATE'S GOOD-FAITH EFFORT TO ACHIEVE
EQUALITY, THE STATE MUST JUSTIFY EACH VARIANCE, NO MATTER HOW SMALL,
AND MISSOURI HAS NOT JUSTIFIED THE VARIANCES HERE.  PP. 531, 533-536. 

(A) VARIANCES BASED ON THE CREATION OF DISTRICTS WITH SPECIFIC
INTEREST ORIENTATIONS ARE CONTRARY TO THE CONSTITUTIONAL REQUIREMENT OF
EQUAL REPRESENTATION.  P. 533. 

(B) CONSIDERATION OF PRACTICAL OR PARTISAN POLITICS CANNOT JUSTIFY
POPULATION DISPARITIES.  PP. 533-534. 

(C) EVEN ASSUMING THAT APPORTIONMENT MAY BE BASED ON ELIGIBLE VOTER
POPULATION RATHER THAN TOTAL POPULATION, MISSOURI MADE NO SERIOUS
ATTEMPT TO ASCERTAIN THE NUMBER OF ELIGIBLE VOTERS IN EACH DISTRICT AND
TO APPORTION ON THAT BASIS.  PP. 534-535. 

(D) WHERE POPULATION SHIFTS CAN BE ACCURATELY PREDICTED, STATES MAY
PROPERLY CONSIDER THEM AND APPLY THEM, NOT AS MISSOURI HAS DONE, BUT
THROUGHOUT THE STATE IN A SYSTEMATIC MANNER.  P. 535. 

(E) CLAIMS THAT GEOGRAPHIC COMPACTNESS MAY REQUIRE DEVIATIONS FROM
EQUALITY ARE GENERALLY UNCONVINCING, AND HERE MISSOURI'S CLAIM OF
COMPACTNESS IS BASED MERELY ON THE UNAESTHETIC APPEARANCE OF A
CONGRESSIONAL BOUNDARIES MAP THAT WOULD RESULT FROM CHANGES WHICH WOULD
ACHIEVE GREATER EQUALITY.  PP. 535-536. 

279 F.SUPP.  952, AFFIRMED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN WESBERRY V. SANDERS, 376 U.S. 1 (1964), WE HELD THAT "(WHILE IT
MAY NOT BE POSSIBLE (FOR THE STATES) TO DRAW CONGRESSIONAL DISTRICTS
WITH MATHEMATICAL PRECISION," ID., AT 18, ART. I, SEC. 2, OF THE
CONSTITUTION REQUIRES THAT "AS NEARLY AS IS PRACTICABLE ONE MAN'S VOTE
IN A CONGRESSIONAL ELECTION IS TO BE WORTH AS MUCH AS ANOTHER'S."  ID.,
AT 7-8.  WE ARE REQUIRED IN THESE CASES TO ELUCIDATE THE "AS NEARLY AS
PRACTICABLE" STANDARD. 

THE MISSOURI CONGRESSIONAL REDISTRICTING STATUTE CHALLENGED IN THESE
CASES RESULTED FROM THAT STATE'S SECOND ATTEMPT AT CONGRESSIONAL
REDISTRICTING SINCE WESBERRY WAS DECIDED.  IN 1965, A THREE-JUDGE
DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI DECLARED THAT THE
MISSOURI CONGRESSIONAL DISTRICTING ACT THEN IN EFFECT WAS
UNCONSTITUTIONAL UNDER WESBERRY BUT WITHHELD ANY JUDICIAL RELIEF "UNTIL
THE LEGISLATURE OF THE STATE OF MISSOURI HAS ONCE MORE HAD AN
OPPORTUNITY TO DEAL WITH THE PROBLEM . . . ."  PREISLER V. SECRETARY OF
STATE OF MISSOURI, 238 F.SUPP.  187, 191.  THEREAFTER, THE GENERAL
ASSEMBLY OF MISSOURI ENACTED A REDISTRICTING STATUTE, BUT THIS STATUTE
TOO WAS DECLARED UNCONSTITUTIONAL.  THE DISTRICT COURT, HOWEVER,
RETAINED JURISDICTION TO REVIEW ANY FURTHER PLAN THAT MIGHT BE
ENACTED.  PREISLER V. SECRETARY OF STATE OF MISSOURI, 257 F.SUPP.  953
(1966), AFF'D, SUB NOM.  KIRKPATRICK V. PREISLER, 385 U.S. 450 (1967). 
IN 1967, THE GENERAL ASSEMBLY ENACTED THE STATUTE UNDER ATTACK HERE,
MO. REV. STAT., C. 128 (CUM. SUPP. 1967), AND THE ATTORNEY GENERAL OF
MISSOURI MOVED IN THE DISTRICT COURT FOR A DECLARATION SUSTAINING THE
ACT AND AN ORDER DISMISSING THE CASE. 

BASED ON THE BEST POPULATION DATA AVAILABLE TO THE LEGISLATURE IN
1967, THE 1960 UNITED STATES CENSUS FIGURES, ABSOLUTE POPULATION
EQUALITY AMONG MISSOURI'S 10 CONGRESSIONAL DISTRICTS WOULD MEAN A
POPULATION OF 431,981 IN EACH DISTRICT.  THE DISTRICTS CREATED BY THE
1967 ACT, HOWEVER, VARIED FROM THIS IDEAL WITHIN A RANGE OF 12,260
BELOW IT TO 13,542 ABOVE IT.  THE DIFFERENCE BETWEEN THE LEAST AND MOST
POPULOUS DISTRICTS WAS THUS 25,802.  IN PERCENTAGE TERMS, THE MOST
POPULOUS DISTRICT WAS 3.13% ABOVE THE MATHEMATICAL IDEAL, AND THE LEAST
POPULOUS WAS 2.84% BELOW.  /1A/ 

THE DISTRICT COURT FOUND THAT THE GENERAL ASSEMBLY HAD NOT IN FACT
RELIED ON THE CENSUS FIGURES BUT INSTEAD HAD BASED ITS PLAN ON LESS
ACCURATE DATA.  IN ADDITION, THE DISTRICT COURT FOUND AT THE GENERAL
ASSEMBLY HAD REJECTED A REDISTRICTING PLAN SUBMITTED TO IT WHICH
PROVIDED FOR DISTRICTS WITH SMALLER POPULATION VARIANCES AMONG THEM. 
FINALLY, THE DISTRICT COURT FOUND THAT THE SIMPLE DEVICE OF SWITCHING
SOME COUNTIES FROM ONE DISTRICT TO ANOTHER WOULD HAVE PRODUCED A PLAN
WITH MARKEDLY REDUCED VARIANCES AMONG DISTRICTS.  BASED ON THESE
FINDINGS, THE DISTRICT COURT, ONE JUDGE DISSENTING, HELD THAT THE 1967
ACT DID NOT MEET THE CONSTITUTIONAL STANDARD OF EQUAL REPRESENTATION
FOR EQUAL NUMBERS OF PEOPLE "AS NEARLY AS PRACTICABLE," AND THAT THE
STATE HAD FAILED TO MAKE ANY ACCEPTABLE JUSTIFICATION FOR THE
VARIANCES.  279 F.SUPP.  952 (1967).  WE NOTED PROBABLE JURISDICTION
BUT STAYED THE DISTRICT COURT'S JUDGMENT PENDING APPEAL AND EXPRESSLY
AUTHORIZED THE STATE "TO CONDUCT 1968 CONGRESSIONAL ELECTIONS UNDER AND
PURSUANT TO (THE) 1967 . . . ACT . . . ."  390 U.S. 939 (1968).  WE
AFFIRM. 

MISSOURI'S PRIMARY ARGUMENT IS THAT THE POPULATION VARIANCES AMONG
THE DISTRICTS CREATED BY THE 1967 ACT ARE SO SMALL THAT THEY SHOULD BE
CONSIDERED DE MINIMIS AND FOR THAT REASON TO SATISFY THE "AS NEARLY AS
PRACTICABLE" LIMITATION AND NOT TO REQUIRE INDEPENDENT JUSTIFICATION. 
ALTERNATIVELY, MISSOURI ARGUES THAT JUSTIFICATION FOR THE VARIANCES WAS
ESTABLISHED IN THE EVIDENCE:  IT IS CONTENDED THAT THE GENERAL ASSEMBLY
PROVIDED FOR VARIANCES OUT OF LEGITIMATE REGARD FOR SUCH FACTORS AS THE
REPRESENTATION OF DISTINCT INTEREST GROUPS, THE INTEGRITY OF COUNTY
LINES, THE COMPACTNESS OF DISTRICTS, THE POPULATION TRENDS WITHIN THE
STATE, THE HIGH PROPORTION OF MILITARY PERSONNEL, COLLEGE STUDENTS, AND
OTHER NONVOTERS IN SOME DISTRICTS, AND THE POLITICAL REALITIES OF
"LEGISLATIVE INTERPLAY." 

        I. 

WE REJECT MISSOURI'S ARGUMENT THAT THERE IS A FIXED NUMERICAL OR
PERCENTAGE POPULATION VARIANCE SMALL ENOUGH TO BE CONSIDERED DE MINIMIS
AND TO SATISFY WITHOUT QUESTION THE "AS NEARLY AS PRACTICABLE"
STANDARD.  THE WHOLE THRUST OF THE "AS NEARLY AS PRACTICABLE" APPROACH
IS INCONSISTENT WITH ADOPTION OF FIXED NUMERICAL STANDARDS WHICH EXCUSE
POPULATION VARIANCES WITHOUT REGARD TO THE CIRCUMSTANCES OF EACH
PARTICULAR CASE.  THE EXTENT TO WHICH EQUALITY MAY PRACTICABLY BE
ACHIEVED MAY DIFFER FROM STATE TO STATE AND FROM DISTRICT TO DISTRICT. 
SINCE "EQUAL REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE (IS) THE
FUNDAMENTAL GOAL FOR THE HOUSE OF REPRESENTATIVES," WESBERRY V.
SANDERS, SUPRA, AT 18, THE "AS NEARLY AS PRACTICABLE" STANDARD REQUIRES
THAT THE STATE MAKE A GOOD-FAITH EFFORT TO ACHIEVE PRECISE MATHEMATICAL
EQUALITY.  SEE REYNOLDS V. SIMS, 377 U.S. 533, 577 (1964).  UNLESS
POPULATION VARIANCES AMONG CONGRESSIONAL DISTRICTS ARE SHOWN TO HAVE
RESULTED DESPITE SUCH EFFORT, THE STATE MUST JUSTIFY EACH VARIANCE, NO
MATTER HOW SMALL. 

THERE ARE OTHER REASONS FOR REJECTING THE DE MINIMIS APPROACH.  WE
CAN SEE NO NONARBITRARY WAY TO PICK A CUTOFF POINT AT WHICH POPULATION
VARIANCES SUDDENLY BECOME DE MINIMIS.  MOREOVER, TO CONSIDER A CERTAIN
RANGE OF VARIANCES DE MINIMIS WOULD ENCOURAGE LEGISLATORS TO STRIVE FOR
THAT RANGE RATHER THAN FOR EQUALITY AS NEARLY AS PRACTICABLE.  THE
DISTRICT COURT FOUND, FOR EXAMPLE, THAT AT LEAST ONE LEADING MISSOURI
LEGISLATOR DEEDED IT PROPER TO ATTEMPT TO ACHIEVE A 2% LEVEL OF
VARIANCE RATHER THAN TO SEEK POPULATION EQUALITY. 

EQUAL REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE IS A PRINCIPLE
DESIGNED TO PREVENT DEBASEMENT OF VOTING POWER AND DIMINUTION OF ACCESS
TO ELECTED REPRESENTATIVES.  TOLERATION OF EVEN SMALL DEVIATIONS
DETRACTS FROM THESE PURPOSES.  THEREFORE, THE COMMAND OF ART. I, SEC.
2, THAT STATES CREATE CONGRESSIONAL DISTRICTS WHICH PROVIDE EQUAL
REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE PERMITS ONLY THE LIMITED
POPULATION VARIANCES WHICH ARE UNAVOIDABLE DESPITE A GOOD-FAITH EFFORT
TO ACHIEVE ABSOLUTE EQUALITY, OR FOR WHICH JUSTIFICATION IS SHOWN. 

CLEARLY, THE POPULATION VARIANCES AMONG THE MISSOURI CONGRESSIONAL
DISTRICTS WERE NOT UNAVOIDABLE.  INDEED, IT IS NOT SERIOUSLY CONTENDED
THAT THE MISSOURI LEGISLATURE CAME AS CLOSE TO EQUALITY AS IT MIGHT
HAVE COME.  THE DISTRICT COURT FOUND THAT, TO THE CONTRARY, IN THE TWO
REAPPORTIONMENT EFFORTS OF THE MISSOURI LEGISLATURE SINCE WESBERRY "THE
LEADERSHIP OF BOTH POLITICAL PARTIES IN THE SENATE AND THE HOUSE WERE
GIVEN NOTHING BETTER TO WORK WITH THAN A MAKESHIFT BILL PRODUCED BY
WHAT HAS BEEN CANDIDLY RECOGNIZED TO BE NO MORE THAN . . . AN EXPEDIENT
POLITICAL COMPROMISE."  279 F.SUPP.,AT 966.  LEGISLATIVE PROPONENTS OF
THE 1967 ACT FRANKLY CONCEDED AT THE DISTRICT COURT HEARING THAT RESORT
TO THE SIMPLE DEVICE OF TRANSFERRING ENTIRE POLITICAL SUBDIVISIONS OF
KNOWN POPULATION BETWEEN CONTIGUOUS DISTRICTS WOULD HAVE PRODUCED
DISTRICTS MUCH CLOSER TO NUMERICAL EQUALITY.  THE DISTRICT COURT FOUND,
MOREOVER, THAT THE MISSOURI LEGISLATURE RELIED ON INACCURATE DATA IN
CONSTRUCTING THE DISTRICTS, AND THAT IT REJECTED WITHOUT CONSIDERATION
A PLAN WHICH WOULD HAVE MARKEDLY REDUCED POPULATION VARIANCES AMONG THE
DISTRICTS.  FINALLY, IT IS SIMPLY INCONCEIVABLE THAT POPULATION
DISPARITIES OF THE MAGNITUDE FOUND IN THE MISSOURI PLAN WERE
UNAVOIDABLE.  /2/  THE NEW YORK APPORTIONMENT PLAN OF REGIONS DIVIDED
INTO DISTRICTS OF ALMOST ABSOLUTE POPULATION EQUALITY DESCRIBED IN
WELLS V. ROCKEFELLER, POST, AT 545-546, PROVIDES STRIKING EVIDENCE THAT
A STATE LEGISLATURE WHICH TRIES CAN ACHIEVE ALMOST COMPLETE NUMERICAL
EQUALITY AMONG ALL THE STATE'S DISTRICTS.  IN SUM, "IT SEEMS QUITE
OBVIOUS THAT THE STATE COULD HAVE COME MUCH CLOSER TO PROVIDING
DISTRICTS OF EQUAL POPULATION THAN IT DID."  SWANN V. ADAMS, 385 U.S.
440, 445 (1967). 

WE THEREFORE TURN TO THE QUESTION WHETHER THE RECORD ESTABLISHES ANY
LEGALLY ACCEPTABLE JUSTIFICATION FOR THE POPULATION VARIANCES.  IT WAS
THE BURDEN OF THE STATE "TO PRESENT . . . ACCEPTABLE REASONS FOR THE
VARIATIONS AMONG THE POPULATIONS OF THE VARIOUS . . . DISTRICTS . . .
."  SWANN V. ADAMS, SUPRA, AT 443-444. 

        II. 

WE AGREE WITH THE DISTRICT COURT THAT MISSOURI HAS NOT
SATISFACTORILY JUSTIFIED THE POPULATION VARIANCES AMONG THE DISTRICTS. 

MISSOURI CONTENDS THAT VARIANCES WERE NECESSARY TO AVOID FRAGMENTING
AREAS WITH DISTINCT ECONOMIC AND SOCIAL INTERESTS AND THEREBY DILUTING
THE EFFECTIVE REPRESENTATION OF THOSE INTERESTS IN CONGRESS.  BUT TO
ACCEPT POPULATION VARIANCES, LARGE OR SMALL, IN ORDER TO CREATE
DISTRICTS WITH SPECIFIC INTEREST ORIENTATIONS IS ANTITHETICAL TO THE
BASIC PREMISE OF THE CONSTITUTIONAL COMMAND TO PROVIDE EQUAL
REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE.  "(NEITHER HISTORY ALONE,
NOR ECONOMIC OR OTHER SORTS OF GROUP INTERESTS, ARE PERMISSIBLE FACTORS
IN ATTEMPTING TO JUSTIFY DISPARITIES FROM POPULATION-BASED
REPRESENTATION.  CITIZENS, NOT HISTORY OR ECONOMIC INTERESTS, CAST
VOTES."  REYNOLDS V. SIMS, SUPRA, AT 579-580.  SEE ALSO DAVIS V. MANN,
337 U.S. 678, 692 (1964). 

WE ALSO REJECT MISSOURI'S ARGUMENT THAT "(THE REASONABLENESS OF THE
POPULATION DIFFERENCES IN THE CONGRESSIONAL DISTRICTS UNDER REVIEW MUST
. . . BE VIEWED IN THE CONTEXT OF LEGISLATIVE INTERPLAY.  THE
LEGISLATIVE LEADERS ALL TESTIFIED THAT THE ACT IN QUESTION WAS IN THEIR
OPINION A REASONABLE LEGISLATIVE COMPROMISE.  . . . IT MUST BE
REMEMBERED . . . THAT PRACTICAL POLITICAL PROBLEMS ARE INHERENT IN THE
ENACTMENT OF CONGRESSIONAL REAPPORTIONMENT LEGISLATION."  /3/  WE AGREE
WITH THE DISTRICT COURT THAT "THE RULE IS ONE OF 'PRACTICABILITY'
RATHER THAN POLITICAL 'PRACTICALITY.'"  279 F.SUPP.,AT 989.  PROBLEMS
CREATED BY PARTISAN POLITICS CANNOT JUSTIFY AN APPORTIONMENT WHICH DOES
NOT OTHERWISE PASS CONSTITUTIONAL MUSTER. 

SIMILARLY, WE DO NOT FIND LEGALLY ACCEPTABLE THE ARGUMENT THAT
VARIANCES ARE JUSTIFIED IF THEY NECESSARILY RESULT FROM A STATE'S
ATTEMPT TO AVOID FRAGMENTING POLITICAL SUBDIVISIONS BY DRAWING
CONGRESSIONAL DISTRICT LINES ALONG EXISTING COUNTY, MUNICIPAL, OR OTHER
POLITICAL SUBDIVISION BOUNDARIES.  THE STATE'S INTEREST IN CONSTRUCTING
CONGRESSIONAL DISTRICTS IN THIS MANNER, IT IS SUGGESTED, IS TO MINIMIZE
THE OPPORTUNITIES FOR PARTISAN GERRYMANDERING.  BUT AN ARGUMENT THAT
DEVIATIONS FROM EQUALITY ARE JUSTIFIED IN ORDER TO INHIBIT LEGISLATORS
FROM ENGAGING IN PARTISAN GERRYMANDERING /4/  IS NO MORE THAN A VARIANT
OF THE ARGUMENT, ALREADY REJECTED, THAT CONSIDERATIONS OF PRACTICAL
POLITICS CAN JUSTIFY POPULATION DISPARITIES. 

MISSOURI FURTHER CONTENDS THAT CERTAIN POPULATION VARIANCES RESULTED
FROM THE LEGISLATURE'S TAKING ACCOUNT OF THE FACT THAT THE PERCENTAGE
OF ELIGIBLE VOTERS AMONG THE TOTAL POPULATION DIFFERED SIGNIFICANTLY
FROM DISTRICT TO DISTRICT-- SOME DISTRICTS CONTAINED DISPROPORTIONATELY
LARGE NUMBERS OF MILITARY PERSONNEL STATIONED AT BASES MAINTAINED BY
THE ARMED FORCES AND STUDENTS IN ATTENDANCE AT UNIVERSITIES OR
COLLEGES.  THERE MAY BE A QUESTION WHETHER DISTRIBUTION OF
CONGRESSIONAL SEATS EXCEPT ACCORDING TO TOTAL POPULATION CAN EVER BE
PERMISSIBLE UNDER ART. I, SEC. 2.  BUT ASSUMING WITHOUT DECIDING THAT
APPORTIONMENT MAY BE BASED ON ELIGIBLE VOTER POPULATION RATHER THAN
TOTAL POPULATION, THE MISSOURI PLAN IS STILL UNACCEPTABLE.  MISSOURI
MADE NO ATTEMPT TO ASCERTAIN THE NUMBER OF ELIGIBLE VOTERS IN EACH
DISTRICT AND TO APPORTION ACCORDINGLY.  AT BEST IT MADE HAPHAZARD
ADJUSTMENTS TO A SCHEME BASED ON TOTAL POPULATION:  OVERPOPULATION IN
THE EIGHTH DISTRICT WAS EXPLAINED AWAY BY THE PRESENCE IN THAT DISTRICT
OF A MILITARY BASE AND A UNIVERSITY; NO ATTEMPT WAS MADE TO ACCOUNT FOR
THE PRESENCE OF UNIVERSITIES IN OTHER DISTRICTS OR THE DISPROPORTIONATE
NUMBERS OF NEWLY ARRIVED AND SHORT-TERM RESIDENTS IN THE CITY OF ST.
LOUIS.  EVEN AS TO THE EIGHTH DISTRICT, THERE IS NO INDICATION THAT THE
EXCESS POPULATION ALLOCATED TO THAT DISTRICT CORRESPONDS TO THE ALLEGED
EXTRAORDINARY ADDITIONAL NUMBERS OF NONELIGIBLE VOTERS THERE. 

MISSOURI ALSO ARGUES THAT POPULATION DISPARITIES BETWEEN SOME OF ITS
CONGRESSIONAL DISTRICTS RESULT FROM THE LEGISLATURE'S ATTEMPT TO TAKE
INTO ACCOUNT PROJECTED POPULATION SHIFTS.  WE RECOGNIZE THAT A
CONGRESSIONAL DISTRICTING PLAN WILL USUALLY BE IN EFFECT FOR AT LEAST
10 YEARS AND FIVE CONGRESSIONAL ELECTIONS.  SITUATIONS MAY ARISE WHERE
SUBSTANTIAL POPULATION SHIFTS OVER SUCH A PERIOD CAN BE ANTICIPATED. 
WHERE THESE SHIFTS CAN BE PREDICTED WITH A HIGH DEGREE OF ACCURACY,
STATES THAT ARE REDISTRICTING MAY PROPERLY CONSIDER THEM.  BY THIS WE
MEAN TO OPEN NO AVENUE FOR SUBTERFUGE.  FINDINGS AS TO POPULATION
TRENDS MUST BE THOROUGHLY DOCUMENTED AND APPLIED THROUGHOUT THE STATE
IN A SYSTEMATIC, NOT AN AD HOC, MANNER.  MISSOURI'S ATTEMPTED
JUSTIFICATION OF THE SUBSTANTIAL UNDERPOPULATION IN THE FOURTH AND
SIXTH DISTRICTS FALLS FAR SHORT OF THIS STANDARD.  THE DISTRICT COURT
FOUND "NO EVIDENCE . . . THAT THE . . . GENERAL ASSEMBLY ADOPTED ANY
POLICY OF POPULATION PROJECTION IN DEVISING DISTRICTS 4 AND 6, OR ANY
OTHER DISTRICT, IN ENACTING THE 1967 ACT."  279 F.SUPP.,AT 983. 
FINALLY, MISSOURI CLAIMS THAT SOME OF THE DEVIATIONS FROM EQUALITY WERE
A CONSEQUENCE OF THE LEGISLATURE'S ATTEMPT TO ENSURE THAT EACH
CONGRESSIONAL DISTRICT WOULD BE GEOGRAPHICALLY COMPACT.  HOWEVER, IN
REYNOLDS V. SIMS, SUPRA, AT 580, WE SAID, "MODERN DEVELOPMENTS AND
IMPROVEMENTS IN TRANSPORTATION AND COMMUNICATIONS MAKE RATHER HOLLOW,
IN THE MID-1960'S, MOST CLAIMS THAT DEVIATIONS FROM POPULATION-BASED
REPRESENTATION CAN VALIDLY BE BASED SOLELY ON GEOGRAPHICAL
CONSIDERATIONS.  ARGUMENTS FOR ALLOWING SUCH DEVIATIONS IN ORDER TO
INSURE EFFECTIVE REPRESENTATION FOR SPARSELY SETTLED AREAS AND TO
PREVENT LEGISLATIVE DISTRICTS FROM BECOMING SO LARGE THAT THE
AVAILABILITY OF ACCESS OF CITIZENS TO THEIR REPRESENTATIVES IS IMPAIRED
ARE TODAY, FOR THE MOST PART, UNCONVINCING."  IN ANY EVENT, MISSOURI'S
CLAIM OF COMPACTNESS IS BASED SOLELY UPON THE UNAESTHETIC APPEARANCE OF
THE MAP OF CONGRESSIONAL BOUNDARIES THAT WOULD RESULT FROM AN ATTEMPT
TO EFFECT SOME OF THE CHANGES IN DISTRICT LINES WHICH, ACCORDING TO THE
LOWER COURT, WOULD ACHIEVE GREATER EQUALITY.  A STATE'S PREFERENCE FOR
PLEASINGLY SHAPED DISTRICTS CAN HARDLY JUSTIFY POPULATION VARIANCES. 

              AFFIRMED. 

/1/  TOGETHER WITH NO. 31, HEINKEL ET AL. V. PREISLER ET AL., ALSO
ON APPEAL FROM THE SAME COURT. 

/1A/  THE REDISTRICTING EFFECTED BY THE 1967 ACT, BASED ON A
POPULATION OF 4,319,813 ACCORDING TO THE 1960 CENSUS, IS AS FOLLOWS:
(TABLE OMITTED) 

/2/  CONTRARY TO APPELLANTS' ASSERTION, WE HAVE NOT SUSTAINED THE
CONSTITUTIONALITY OF ANY CONGRESSIONAL DISTRICTING PLAN WITH POPULATION
VARIANCES OF THE MAGNITUDE FOUND IN THE MISSOURI PLAN.  IN CONNOR V.
JOHNSON, 386 U.S. 483 (1967), THE ONLY ISSUE PRESENTED TO THIS COURT
WAS WHETHER THE DISTRICTING PLAN INVOLVED RACIAL GERRYMANDERING.  ALTON
V. TAWES, 384 U.S. 315 (1966), AND KIRK V. GONG, 389 U.S. 574 (1968),
INVOLVED SITUATIONS WHERE THE LOWER COURTS THEMSELVES HAD REAPPORTIONED
THE DISTRICTS ON AN EMERGENCY BASIS, AND OUR AFFIRMANCES WERE BASED ON
AGREEMENT WITH THE USE OF THE PLANS IN THAT CIRCUMSTANCE, AND NOT ON
ANY VIEW THAT THE PLANS IN QUESTION ACHIEVED EQUALITY AS NEARLY AS
PRACTICABLE. 

/3/  BRIEF FOR APPELLANTS 37-38. 

/4/  IT IS DUBIOUS IN ANY EVENT THAT THE TEMPTATION TO GERRYMANDER
WOULD BE MUCH INHIBITED, SINCE THE LEGISLATURE WOULD STILL BE FREE TO
CHOOSE WHICH OF SEVERAL SUBDIVISIONS, ALL WITH THEIR OWN POLITICAL
COMPLEXION, TO INCLUDE IN A PARTICULAR CONGRESSIONAL DISTRICT. 
BESIDES, OPPORTUNITIES FOR GERRYMANDERING ARE GREATEST WHEN THERE IS
FREEDOM TO CONSTRUCT UNEQUALLY POPULATED DISTRICTS.  "(THE ARTISTRY OF
THE POLITICAL CARTOGRAPHER IS PUT TO ITS HIGHEST TEST WHEN HE MUST WORK
WITH CONSTITUENCIES OF EQUAL POPULATION.  AT SUCH TIMES, HIS SKILLS CAN
BE COMPARED TO THOSE OF A SURGEON, FOR BOTH WORK UNDER FIXED AND
ARDUOUS RULES.  HOWEVER, IF THE MAPMAKER IS FREE TO ALLOCATE VARYING
POPULATIONS TO DIFFERENT DISTRICTS, THEN THE BUTCHER'S CLEAVER REPLACES
THE SCALPEL; AND THE RESULTS REFLECT SHARPLY THE DIFFERENCE IN THE
METHOD OF OPERATION."  A. HACKER, CONGRESSIONAL DISTRICTING 59 (1964
REV. ED.). 

(FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 549.) 

(FOR DISSENTING OPINION OF MR. JUSTICE WHITE, SEE POST, P. 553.) 

MR. JUSTICE FORTAS, CONCURRING. 

I CONCUR IN THE JUDGMENT OF THE COURT IN THESE CASES, BUT I CANNOT
SUBSCRIBE TO THE STANDARD OF NEAR-PERFECTION WHICH THE COURT ANNOUNCES
AS OBLIGATORY UPON STATE LEGISLATURES FACING THE DIFFICULT PROBLEM OF
REAPPORTIONMENT FOR CONGRESSIONAL ELECTIONS. 

IN WESBERRY V. SANDERS, 376 U.S. 1 (1964), THIS COURT RECOGNIZED
THAT "IT MAY NOT BE POSSIBLE TO DRAW CONGRESSIONAL DISTRICTS WITH
MATHEMATICAL PRECISION," AND IT HELD THAT THE CONSTITUTION REQUIRES
THAT THEY BE DRAWN SO THAT, "AS NEARLY AS IS PRACTICABLE," EACH
REPRESENTATIVE SHOULD CAST A VOTE ON BEHALF OF THE SAME NUMBER OF
PEOPLE. 

THE COURT NOW NOT ONLY INTERPRETS "AS NEARLY AS PRACTICABLE" TO MEAN
THAT THE STATE IS REQUIRED TO "MAKE A GOOD-FAITH EFFORT TO ACHIEVE
PRECISE MATHEMATICAL EQUALITY," BUT IT ALSO REQUIRES THAT ANY REMAINING
POPULATION DISPARITIES "NO MATTER HOW SMALL," BE JUSTIFIED.  IT THEN
PROCEEDS TO REJECT, SERIATIM, EVERY TYPE OF JUSTIFICATION THAT HAS BEEN
- POSSIBLY, EVERY ONE THAT COULD BE-- ADVANCED. 

I AGREE THAT THE STATE LEGISLATURES SHOULD BE REQUIRED TO MAKE "A
GOOD-FAITH EFFORT TO ACHIEVE" AS A RESULT THAT ALLOCATES THE POPULATION
OR THE RESIDENTS /1/  OF THE STATE IN ROUGHLY EQUAL NUMBERS TO EACH
DISTRICT, BASED UPON SOME ORDERLY AND OBJECTIVE METHOD.  /2/  IN MY
VIEW, THE STATE COULD PROPERLY ARRIVE AT FIGURES FOR CURRENT POPULATION
BY TAKING THE LATEST CENSUS RETURNS AND MAKING MODIFICATIONS TO ALLOW
FOR POPULATION MOVEMENTS SINCE THE LAST CENSUS (WHICH THE COURT SEEMS
TO FIND ACCEPTABLE).  IT COULD ALSO, IN MY OPINION, DISCOUNT THE CENSUS
FIGURES TO TAKE ACCOUNT OF THE PRESENCE OF SIGNIFICANT TRANSIENT OR
NONRESIDENT POPULATION IN PARTICULAR AREAS (AN ADJUSTMENT AS TO WHICH
THE COURT INDICATES DOUBT).  IF THE STATE SHOULD PROCEED ON SOME
APPROPRIATE POPULATION BASIS SUCH AS I HAVE SUGGESTED, IN MY JUDGMENT,
WOULD BE JUSTIFIED IN DECLINING TO DISAPPROVE THE RESULT MERELY BECAUSE
OF SMALL DISPARITIES, IN THE ABSENCE OF EVIDENCE OF GERRYMANDERING--
THE DELIBERATE AND ARBITRARY DISTORTION OF DISTRICT BOUNDARIES AND
POPULATIONS FOR PARTISAN OR PERSONAL POLITICAL PURPOSES. 

IN CONSIDERING WHETHER THE STATE HAS "APPROXIMATED" AN EQUAL
DIVISION AND ALLOCATION OF THE POPULATION, I SYMPATHIZE WITH THE
MAJORITY'S VIEW THAT A DE MINIMIS RULE OF ALLOWABLE DISPARITIES TENDS
TO DEMEAN IN THEORY AND IN PRACTICE THE CONSTITUTIONAL OBJECTIVE
BECAUSE IT SUGGESTS THAT IT IS NOT NECESSARY EVEN TO AIM AT EQUALITY. 
ON THE OTHER HAND, TO REJECT DE MINIMIS AS A STATEMENT OF THE LIMITS ON
THE RULE OF EQUALITY SHOULD NOT LEAD US TO TOSS ASIDE THE WISE
RECOGNITION OF THE INSCRUTABILITY OF FACT AND THE IMPERFECTION OF MAN
WHICH IS IMPLICIT IN THE WESBERRY STANDARD:  "AS NEARLY AS
PRACTICABLE."  THIS PHRASE DOES NOT REFER MERELY TO ARITHMETICAL
POSSIBILITIES.  ARITHMETICALLY, IT IS POSSIBLE TO ACHIEVE DIVISION OF A
STATE INTO DISTRICTS OF PRECISELY EQUAL SIZE, AS MEASURED BY THE
DECENNIAL CENSUS OR ANY OTHER POPULATION BASE.  TO CARRY OUT THIS
THEORETICAL POSSIBILITY, HOWEVER, A LEGISLATURE MIGHT HAVE TO IGNORE
THE BOUNDARIES OF COMMON SENSE, RUNNING THE CONGRESSIONAL DISTRICT LINE
DOWN THE MIDDLE OF THE CORRIDOR OF AN APARTMENT HOUSE OR EVEN DIVIDING
THE RESIDENTS OF A SINGLE-FAMILY HOUSE BETWEEN TWO DISTRICTS.  THE
MAJORITY OPINION DOES NOT SUGGEST SO EXTREME A PRACTICAL APPLICATION OF
ITS TEACHING, AND I MENTION IT ONLY BECAUSE THE EXAMPLE MAY DRAMATIZE
THE FALLACY OF INFLEXIBLE INSISTENCE UPON MATHEMATICAL EXACTNESS, WITH
NO TOLERANCE FOR REALITY. 

WHATEVER MIGHT BE THE MERITS OF INSISTENCE ON ABSOLUTE EQUALITY IF
IT COULD BE ATTAINED, THE MAJORITY'S PURSUIT OF PRECISION IS A SEARCH
FOR A WILL-O'-THE-WISP.  THE FACT IS THAT ANY SOLUTION TO THE
APPORTIONMENT AND DISTRICTING PROBLEM IS AT BEST AN APPROXIMATION
BECAUSE IT IS BASED UPON FIGURES WHICH ARE ALWAYS TO SOME DEGREE
OBSOLETE.  NO PURPOSE IS SERVED BY AN INSISTENCE ON PRECISION WHICH IS
UNATTAINABLE BECAUSE OFTHE INHERENT IMPRECISIONS IN THE POPULATION DATA
ON WHICH DISTRICTING MUST BE BASED.  THE BASE TO WHICH MISSOURI'S
LEGISLATURE SHOULD HAVE ADHERED PRECISELY, ACCORDING TO THE MAJORITY,
IS THE 1960 DECENNIAL CENSUS.  THE LEGISLATURE'S PLAN HERE UNDER REVIEW
WAS ENACTED IN 1967.  ASSUMING PERFECT PRECISION FOR THE 1960 CENSUS
WHEN TAKEN, /3/  BY 1967, BECAUSE OF THE MOVEMENT OF POPULATION WITHIN
THE STATE AS WELL AS IN-AND-OUT MIGRATION, SUBSTANTIAL DISPARITIES HAD
ARISEN BETWEEN THE REAL DISTRIBUTION OF POPULATION IN THE STATE AND
THAT REFLECTED IN THE 1960 CENSUS BASE HERE SO ZEALOUSLY PROTECTED BY
THE COURT.  /4/ 

NOTHING THAT I HAVE SAID SHOULD BE TAKEN AS INDICATING THAT I DO NOT
BELIEVE THAT THE WESBERRY STANDARD REQUIRES A HIGH DEGREE OF
CORRESPONDENCE BETWEEN THE DEMONSTRATED POPULATION OR RESIDENCE FIGURES
AND THE DISTRICT DIVISIONS.  NOR WOULD I FIX, AT LEAST AT THIS
RELATIVELY EARLY STAGE OF THE REAPPORTIONMENT EFFORT, A PERCENTAGE
FIGURE FOR PERMISSIBLE VARIATION.  /5/ 

IN THE PRESENT CASES, HOWEVER, I AGREE THAT THE JUDGMENT OF THE
DISTRICT COURT SHOULD BE AFFIRMED.  THE HISTORY OF THIS REAPPORTIONMENT
AND OF THE LEGISLATURE'S FAILURE TO COMPLY WITH THE PLAIN AND PATIENT
DIRECTIONS OF THE THREE-JUDGE DISTRICT COURT AND THE FAILURE OF THE
LEGISLATURE TO USE EITHER ACCURATE 1960 CENSUS FIGURES OR OTHER
SYSTEMATICALLY OBTAINED FIGURES FOR ALL THE DISTRICTS-- THESE FACTORS
STRONGLY SUPPORT THE DISTRICT COURT'S REFUSAL TO ACCEPT THE MISSOURI
PLAN.  IT IS TRUE THAT ON THE AVERAGE, THERE WAS ONLY A 1.6% VARIATION
FROM WHAT THE MAJORITY QUAINTLY CALLS THE "IDEAL" (MEANING THE 1960
CENSUS FIGURES) AND IN ONLY THREE OF THE 10 DISTRICTS WAS THERE A
VARIATION OF 2% OR MORE, AND IT IS ALSO TRUE THAT THERE IS NO FINDING
OF GERRYMANDERING.  BUT REGARDLESS OF THE POSSIBILITY THAT VARIANCES
WITHIN THIS RANGE MIGHT IN SOME SITUATIONS BE CONSIDERED TOLERABLE
WITHIN WESBERRY'S STANDARD, I AGREE THAT WE SHOULD SUSTAIN THE DISTRICT
COURT'S REJECTION OF THE PLAN IN LIGHT OF THE HISTORY OF THE CASES AND
THE RECORD OF THE PLAN'S PREPARATION. 

/1/  I WOULD FIND IT CONSTITUTIONALLY ENTIRELY ACCEPTABLE FOR A
STATE TO BASE ITS APPORTIONMENT ON NUMBERS OF RESIDENTS, RATHER THAN
TOTAL POPULATION, IN EACH DISTRICT AT THE TIME THE DISTRICTS ARE
ESTABLISHED.  THIS WOULD PERMIT ADJUSTMENTS TO TAKE ACCOUNT, FOR
EXAMPLE, OF DISTORTIONS RESULTING FROM LARGE NUMBERS OF NONRESIDENTS AT
MILITARY INSTALLATIONS OR COLLEGES IN AN AREA. 

/2/  IN AVERY V. MIDLAND COUNTY, 390 U.S. 474, 495 (1968), I ARGUED
IN A DISSENTING OPINION THAT CONSIDERATION OF DISPARATE LOCAL INTERESTS
MIGHT BE APPROPRIATE WITH RESPECT TO DEFINING CERTAIN TYPES OF LOCAL
GOVERNMENT UNITS EXERCISING LIMITED GOVERNMENTAL POWERS.  I NOTED
THERE, HOWEVER, THAT THE SAME FACTORS COULD NOT JUSTIFY DEPARTING FROM
THE ONE MAN, ONE VOTE THEORY IN STATE LEGISLATURES-- OR, I MIGHT NOW
ADD, CONGRESSIONAL DISTRICTS-- BECAUSE OF THE GENERAL AND BASIC NATURE
OF THE FUNCTION PERFORMED. 

/3/  THE BASIC ENUMERATION ERROR IN THE CENSUS-- THAT IS THE
VARIATION WHICH WOULD BE OBSERVED BETWEEN SUCCESSIVE ENUMERATIONS OF
THE SAME AREA-- IS VERY LOW.  SECOND SURVEYS OF SELECTED AREAS,
CONDUCTED BY SPECIALLY TRAINED ENUMERATORS, PRODUCED COUNTS VARYING BY
ONLY ABOUT 1% FOR THE WHOLE POPULATION FROM THE COUNTS OF THE REGULAR
ENUMERATORS.  FOR PARTICULAR GROUPS IN THE POPULATION, THE VARIANCE WAS
SIGNIFICANTLY LARGER.  SEE U.S. BUREAU OF THE CENSUS, EVALUATION AND
RESEARCH PROGRAM OF THE U.S. CENSUSES OF POPULATION AND HOUSING, 1960,
"ACCURACY OF DATA ON POPULATION CHARACTERISTICS AS MEASURED BY RE
INTERVIEWS," SER.  ER-60, NO. 4 (1964), TABLE 24, P. 22. 

FAR MORE SIGNIFICANT THAN VARIATIONS BETWEEN SUCCESSIVE ENUMERATIONS
ARE ERRORS-- VIRTUALLY ALL UNDERCOUNTINGS-- WHICH ARE PRODUCED BY THE
INHERENT LIMITATIONS OF THE ENUMERATING SYSTEM.  A CENSUS BUREAU
ESTIMATE INDICATES THAT THE 1960 CENSUS COUNTED ONLY 96.9% OF THE WHOLE
POPULATION, 3.1% OF THE PEOPLE NOT BEING FOUND AND COUNTED BY THE
ENUMERATORS.  UNDERCOUNTING WAS NOT EVENLY DISTRIBUTED OVER THE WHOLE
POPULATION.  INSTEAD, MEMBERS OF CERTAIN GROUPS, NOTABLY YOUNG ADULT
NEGROES, WERE FAR MORE LIKELY TO BE MISSED BY THE ENUMERATORS.  FOR
NONWHITES IN ALL AGE GROUPS THE CENSUS WAS ESTIMATED TO UNDERSTATE THE
ACTUAL POPULATION BY 9.5%.  FOR YOUNG ADULT NEGRO MALES, UNDERCOUNTING
REACHED NEARLY 20% FOR SOME FIVE-YEAR AGE GROUPS.  SEE GENERALLY,
SIEGEL, COMPLETENESS OF COVERAGE OF THE NONWHITE POPULATION IN THE 1960
CENSUS AND CURRENT ESTIMATES, AND SOME IMPLICATIONS, REPORT, CONFERENCE
ON SOCIAL STATISTICS AND THE CITY (WASHINGTON, D.C., JUNE 22-23, 1967)
13 (HEER ED., 1968).  BECAUSE THE HEAVILY UNDERCOUNTED GROUPS ARE NOT
EVENLY DISTRIBUTED OVER THE COUNTRY, THE DIFFERENTIAL RATES OF
UNDERCOUNTING PRODUCE DIVERGENCES BETWEEN THE ACTUAL RELATIVE
POPULATIONS OF PARTICULAR AREAS AND THOSE INDICATED BY THE CENSUS. 

/4/  THE CENSUS BUREAU HAS ESTIMATED THAT OF MISSOURI'S 114
COUNTIES, 50 LOST POPULATION BETWEEN 1960 AND 1966, WHILE 64 GAINED. 
THE INDEPENDENT CITY OF ST. LOUIS LOST 57,900, OR 7.7%; ST. LOUIS
COUNTY GAINED 146,000 OR 20.8%.  OUTSIDE ST. LOUIS CITY AND COUNTY, THE
ABSOLUTE CHANGE RANGED FROM A 22,100 INCREASE IN ST. CHARLES COUNTY TO
A 7,100 DECREASE IN DUNKLIN COUNTY.  THE PERCENTAGE CHANGE RANGED FROM
A 41.7% INCREASE IN ST. CHARLES COUNTY TO A 21.4% DECREASE IN HOLT
COUNTY.  ESTIMATES OF THE POPULATION OF COUNTIES:  JULY 1, 1966 (REPORT
NO. 3), CURRENT POPULATION REPORTS, POPULATION ESTIMATES, SER.  P-25,
NO. 407 (BUREAU OF THE CENSUS, OCTOBER 10, 1968) 11-13. 

/5/  CF. REYNOLDS V. SIMS, 377 U.S. 533, 578 (1964): "FOR THE
PRESENT, WE DEEM IT EXPEDIENT NOT TO ATTEMPT TO SPELL OUT ANY PRECISE
CONSTITUTIONAL TESTS.  WHAT IS MARGINALLY PERMISSIBLE IN ONE STATE MAY
BE UNSATISFACTORY IN ANOTHER, DEPENDING ON THE PARTICULAR CIRCUMSTANCES
OF THE CASE.  DEVELOPING A BODY OF DOCTRINE ON A CASE-BY-CASE BASIS
APPEARS TO US TO PROVIDE THE MOST SATISFACTORY MEANS OF ARRIVING AT
DETAILED CONSTITUTIONAL REQUIREMENTS IN THE AREA OF STATE LEGISLATIVE
APPORTIONMENT." 

THOMAS J. DOWNEY, FIRST ASSISTANT ATTORNEY GENERAL OF MISSOURI,
ARGUED THE CAUSE FOR APPELLANTS IN NO. 30.  WITH HIM ON THE BRIEFS WERE
NORMAN H. ANDERSON, ATTORNEY GENERAL, PRO SE, AND LOUREN R. WOOD,
ASSISTANT ATTORNEY GENERAL.  DAVID COLLINS ARGUED THE CAUSE AND FILED A
BRIEF FOR APPELLANTS IN NO. 31.     IRVING ACHTENBERG ARGUED THE CAUSE
FOR APPELLEES IN BOTH CASES.  WITH HIM ON THE BRIEF WAS PAUL W.
PREISLER, PRO SE.
..END :










WELLS V. ROCKEFELLER, 394 U.S. 542 


       WELLS V. ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

NO. 238.  ARGUED JANUARY 13, 1969.-- DECIDED APRIL 7, 1969. 


NEW YORK'S 1968 CONGRESSIONAL DISTRICTING STATUTE TREATED SEVEN
REGIONS INTO DISTRICTS OF VIRTUALLY IDENTICAL POPULATION.  THIRTY-ONE
OF THE 41 DISTRICTS WERE THUS CONSTRUCTED, WITH THE REMAINING 10
COMPOSED OF GROUPINGS OF WHOLE COUNTIES.  THE MOST POPULOUS DISTRICT
HAD MORE THAN 26,000 (6.488%) ABOVE THE MEAN POPULATION WHILE THE
SMALLEST DISTRICT HAD OVER 27,000 (6.608%) BELOW THE MEAN.  THE
DISTRICT COURT SUSTAINED THE STATUTE, STATING THAT THE PLAN AFFORDED
THE VOTERS "AN OPPORTUNITY TO VOTE IN THE 1968 AND 1970 ELECTIONS ON
THE BASIS OF POPULATION EQUALITY WITHIN REASONABLY COMPARABLE
DISTRICTS."  HELD: 

1.  THE HOLDING OF KIRKPATRICK V. PREISLER, ANTE, P. 526, THAT "THE
COMMAND OF ART. I, SEC. 2, THAT STATES CREATE CONGRESSIONAL DISTRICTS
WHICH PROVIDE EQUAL REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE PERMITS
ONLY THE LIMITED POPULATION VARIANCES WHICH ARE UNAVOIDABLE DESPITE A
GOOD-FAITH EFFORT TO ACHIEVE ABSOLUTE EQUALITY, OR FOR WHICH
JUSTIFICATION IS SHOWN," REQUIRES EQUALIZED POPULATION IN ALL DISTRICTS
AND IS NOT SATISFIED BY EQUALIZING POPULATION ONLY WITHIN DEFINED SUB
STATES.  P. 546. 

(A) THERE IS NO CLAIM THAT NEW YORK MADE A GOOD-FAITH EFFORT TO
ACHIEVE PRECISE MATHEMATICAL EQUALITY AMONG ITS 41 DISTRICTS.  P. 546. 

(B) "(TO ACCEPT POPULATION VARIANCES, LARGE OR SMALL, IN ORDER TO
CREATE DISTRICTS WITH SPECIFIC INTEREST ORIENTATIONS IS ANTITHETICAL TO
THE BASIC PREMISE OF THE CONSTITUTIONAL COMMAND TO PROVIDE EQUAL
REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE."  KIRKPATRICK V. PREISLER,
SUPRA, AT 533.  P. 546. 

(C) VARIANCES CANNOT BE JUSTIFIED BY THE FACT THAT SOME DISTRICTS
ARE CONSTRUCTED OF ENTIRE COUNTIES.  P. 546. 

2.  IN VIEW OF THE AMPLE TIME REMAINING TO PROMULGATE A
CONSTITUTIONAL PLAN PRIOR TO THE 1970 ELECTION, AS DISTINGUISHED FROM
THE 1968 ELECTION, THE DISTRICT COURT'S JUDGMENT IS REVERSED INSOFAR AS
IT APPROVED THE PLAN FOR THE 1970 ELECTION.  P. 547. 

281 F.SUPP.  821, REVERSED IN PART AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS ARGUED WITH KIRKPATRICK V. PREISLER, ANTE, P. 526,
WHICH AFFIRMED THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT DECLARING
INVALID MISSOURI'S 1967 CONGRESSIONAL DISTRICTING STATUTE.  BEFORE US
HERE IS A JUDGMENT OF A THREE-JUDGE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK WHICH SUSTAINED THE VALIDITY OF NEW YORK'S 1968
CONGRESSIONAL DISTRICTING STATUTE, N.Y. LAWS 1968, C. 8.  281 F.SUPP. 
821 (1968).  IN 1967 THAT COURT HAD STRUCK DOWN AN EARLIER DISTRICTING
STATUTE APPORTIONING NEW YORK'S 41 CONGRESSIONAL SEATS AND HAD RETAINED
JURISDICTION OF THE CASE PENDING ACTION BY THE NEW YORK LEGISLATURE TO
REDRESS THE PLAN'S DEFICIENCIES.  THE COURT RECOGNIZED THAT A THOROUGH
REVISION OF DISTRICT LINES MIGHT NOT BE POSSIBLE IN TIME FOR THE
UPCOMING 1968 CONGRESSIONAL ELECTION BUT CONCLUDED NEVERTHELESS THAT
"(THERE ARE ENOUGH CHANGES WHICH CAN BE SUPERIMPOSED ON THE PRESENT
DISTRICTS TO CURE THE MOST FLAGRANT INEQUALITIES."  273 F.SUPP.  984,
992, AFF'D, 389 U.S. 421 (1967). 

ON FEBRUARY 28, 1968, A MONTH AND A HALF AFTER THE NEW YORK
LEGISLATURE RECONVENED, THE DISTRICTING STATUTE PRESENTLY UNDER ATTACK
WAS ENACTED.  AFTER A HEARING, THE THREE-JUDGE COURT, ON MARCH 20,
1968, SUSTAINED THE STATUTE, STATING THAT THE DISTRICTING PLAN AFFORDED
NEW YORK VOTERS "AN OPPORTUNITY TO VOTE IN THE 1968 AND 1970 ELECTIONS
ON A BASIS OF POPULATION EQUALITY WITHIN REASONABLY COMPARABLE
DISTRICTS."  281 F.SUPP.,AT 826.  WE NOTED PROBABLE JURISDICTION.  393
U.S. 819 (1968).  WE REVERSE INSOFAR AS THE JUDGMENT OF THE DISTRICT
COURT SUSTAINS THE PLAN FOR USE IN THE 1970 CONGRESSIONAL ELECTION. 

APPELLANT LEVELS TWO CONSTITUTIONAL ATTACKS AGAINST THE STATUTE:
(1) THAT THE STATUTE VIOLATES THE EQUAL-POPULATION PRINCIPLE OF
WESBERRY V. SANDERS, 376 U.S. 1 (1964), AND (2) THAT THE STATUTE
REPRESENTS A SYSTEMATIC AND INTENTIONAL PARTISAN GERRYMANDER VIOLATING
ART. I, SEC. 2, OF THE CONSTITUTION AND THE FOURTEENTH AMENDMENT.  WE
DO NOT REACH, AND INTIMATE NO VIEW UPON THE MERITS OF, THE ATTACK UPON
THE STATUTE AS A CONSTITUTIONALLY IMPERMISSIBLE GERRYMANDER.  WE HOLD
THAT REVERSAL OF THE DISTRICT COURT'S JUDGMENT IS COMPELLED BY OUR
DECISION TODAY IN KIRKPATRICK V. PREISLER, SUPRA, WHICH ELUCIDATES THE
COMMAND OF WESBERRY THAT CONGRESSIONAL DISTRICTING MEET THE STANDARD OF
EQUAL REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE AS NEARLY AS IS
PRACTICABLE. 

THE DISTRICT COURT CORRECTLY HELD IN ITS 1967 OPINION THAT "THERE IS
A BURDEN ON THE PROPONENT OF ANY DISTRICTING PLAN TO JUSTIFY DEVIATIONS
FROM EQUALITY."  273 F.SUPP.,AT 987.  THE DISTRICT COURT TOOK NO
TESTIMONY ON THE QUESTION OF JUSTIFICATION AT THE HEARING HELD TO
CONSIDER THE 1968 STATUTE.  RECOGNIZING THAT THE STATUTE, WHICH WAS
ENACTED WITH VIRTUALLY NO DEBATE ON ITS MERITS IN EITHER HOUSE OF THE
NEW YORK LEGISLATURE, WAS THE WORK OF A JOINT LEGISLATIVE COMMITTEE,
THE COURT'S 1968 OPINION REFERS TO THE REPORT OF THE JOINT COMMITTEE AS
THE SOURCE OF THE JUSTIFICATIONS RELIED UPON AS SUFFICIENT TO SUSTAIN
THE POPULATION DISPARITIES CREATED BY THE PLAN.  281 F.SUPP.,AT 823
824.  WE HAVE BEEN REFERRED TO THE SAME SOURCE. 

THE REPORT RECITES THAT THE COMMITTEE "GAVE PRIORITY TO THE
POPULATION TOTALS IN THE SEVERAL DISTRICTS" AS THEY APPEARED IN THE
1960 DECENNIAL CENSUS AND THAT "VERY LIMITED" CONSIDERATION WAS GIVEN
TO POPULATION SHIFTS WITHIN THE STATE SINCE 1960.  THE REPORT RECITES
FURTHER THAT "(OTHER CONSIDERATIONS WERE THE GEOGRAPHICAL CONFORMATION
OF THE AREA TO BE DISTRICTED, THE MAINTENANCE OF COUNTY INTEGRITY, THE
FACILITY BY WHICH THE VARIOUS BOARDS OF ELECTIONS CAN 'TOOL UP' FOR THE
FORTHCOMING (1968) PRIMARY ELECTION, EQUALITY OF POPULATION WITHIN THE
REGION, AND EQUALITY OF POPULATION THROUGHOUT THE STATE."  INTERIM
REPORT OF THE JOINT LEGISLATIVE COMMITTEE ON REAPPORTIONMENT OF N.Y.
STATE LEGISLATURE (1968). 

THE HEART OF THE SCHEME, HOWEVER, LAY IN THE DECISION TO TREAT SEVEN
INTO CONGRESSIONAL DISTRICTS OF VIRTUALLY IDENTICAL POPULATION.  THIRTY
ONE OF NEW YORK'S 41 CONGRESSIONAL DISTRICTS WERE CONSTRUCTED ON THAT
PRINCIPLE.  THE REMAINING 10 DISTRICTS WERE COMPOSED OF GROUPINGS OF
WHOLE COUNTIES.  A CHART SHOWING THE POPULATION OF EACH DISTRICT UNDER
THE 1968 STATUTE APPEARS IN THE APPENDIX TO THIS OPINION.  THE SEVEN
REGIONS ARE:  (A) SUFFOLK AND NASSAU COUNTIES ON LONG ISLAND WITH FIVE
DISTRICTS HAVING AN AVERAGE POPULATION OF 393,391 AND A MINIMUM
DEVIATION FROM THAT AVERAGE OF 208; (B) QUEENS COUNTY WITH FOUR
DISTRICTS HAVING AN AVERAGE POPULATION OF 434,672 AND A MAXIMUM
DEVIATION FROM THAT AVERAGE OF 120; (C) KINGS COUNTY PLUS A DISTRICT
MADE UP OF PART OF KINGS AND PART OF QUEENS, AND A DISTRICT MADE UP OF
RICHMOND COUNTY AND PART OF KINGS, WITH SEVEN DISTRICTS HAVING AN
AVERAGE POPULATION OF 417,171 AND A MAXIMUM DEVIATION FROM THAT AVERAGE
OF 307; (D) NEW YORK AND BRONX COUNTIES WITH EIGHT DISTRICTS HAVING AN
AVERAGE POPULATION OF 390,415 AND A MAXIMUM DEVIATION FROM THAT AVERAGE
OF 496; (E) WESTCHESTER AND PUTNAM COUNTIES WITH TWO DISTRICTS HAVING
AN AVERAGE POPULATION OF 420,307 AND A MAXIMUM DEVIATION FROM THAT
AVERAGE OF 161; (F) WAYNE PLUS PART OF MONROE AND THE REMAINDER OF
MONROE PLUS FOUR OTHER COUNTIES WITH TWO DISTRICTS HAVING AN AVERAGE
POPULATION OF 410,688 AND A MAXIMUM DEVIATION FROM THAT AVERAGE OF 256;
AND (G) ERIE AND NIAGARA COUNTIES WITH THREE DISTRICTS HAVING AN
AVERAGE POPULATION OF 435,652 AND A MAXIMUM DEVIATION FROM THAT AVERAGE
OF 228.  THE 10 REMAINING "NORTH COUNTRY" DISTRICTS WERE COMPOSED OF
GROUPINGS OF WHOLE COUNTIES. 

IT IS CLEAR THAT OUR DECISION IN KIRKPATRICK V. PREISLER, SUPRA,
COMPELS THE CONCLUSION THAT THIS SCHEME IS UNCONSTITUTIONAL.  WE THERE
HELD, AT 531, THAT "THE COMMAND OF ART. I, SEC. 2, THAT STATES CREATE
CONGRESSIONAL DISTRICTS WHICH PROVIDE EQUAL REPRESENTATION FOR EQUAL
NUMBERS OF PEOPLE PERMITS ONLY THE LIMITED POPULATION VARIANCES WHICH
ARE UNAVOIDABLE DESPITE A GOOD-FAITH EFFORT TO ACHIEVE ABSOLUTE
EQUALITY, OR FOR WHICH JUSTIFICATION IS SHOWN."  THE GENERAL COMMAND,
OF COURSE, IS TO EQUALIZE POPULATION IN ALL THE DISTRICTS OF THE STATE
AND IS NOT SATISFIED BY EQUALIZING POPULATION ONLY WITHIN DEFINED SUB
STATES.  NEW YORK COULD NOT AND DOES NOT CLAIM THAT THE LEGISLATURE
MADE A GOOD-FAITH EFFORT TO ACHIEVE PRECISE MATHEMATICAL EQUALITY AMONG
ITS 41 CONGRESSIONAL DISTRICTS.  RATHER, NEW YORK TRIES TO JUSTIFY ITS
SCHEME OF CONSTRUCTING EQUAL DISTRICTS ONLY WITHIN EACH OF SEVEN SUB
STATES AS A MEANS TO KEEP REGIONS WITH DISTINCT INTERESTS INTACT.  BUT
WE MADE CLEAR IN KIRKPATRICK THAT "TO ACCEPT POPULATION VARIANCES,
LARGE OR SMALL, IN ORDER TO CREATE DISTRICTS WITH SPECIFIC INTEREST
ORIENTATIONS IS ANTITHETICAL TO THE BASIC PREMISE OF THE CONSTITUTIONAL
COMMAND TO PROVIDE EQUAL REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE." 
TO ACCEPT A SCHEME SUCH AS NEW YORK'S WOULD PERMIT GROUPS OF DISTRICTS
WITH DEFINED INTEREST ORIENTATIONS TO BE OVERREPRESENTED AT THE EXPENSE
OF DISTRICTS WITH DIFFERENT INTEREST ORIENTATIONS.  EQUALITY OF
POPULATION AMONG DISTRICTS IN A SUB-STATE IS NOT A JUSTIFICATION FOR
INEQUALITY AMONG ALL THE DISTRICTS IN THE STATE. 

NOR ARE THE VARIATIONS IN THE "NORTH COUNTRY" DISTRICTS JUSTIFIED BY
THE FACT THAT THESE DISTRICTS ARE CONSTRUCTED OF ENTIRE COUNTIES. 
KIRKPATRICK V. PREISLER, SUPRA. 

WE APPRECIATE THAT THE DECISION OF THE DISTRICT COURT DID NOT REST
ENTIRELY ON AN APPRAISAL OF THE MERITS OF THE NEW YORK PLAN.  AS NOTED
EARLIER, WHEN THE THREE-JUDGE DISTRICT COURT IN 1967 HELD THE THEN
EXISTING DISTRICTING PLAN UNCONSTITUTIONAL, IT RECOGNIZED THAT THE
IMMINENCE OF THE 1968 ELECTION MADE REDISTRICTING AN UNREALISTIC
POSSIBILITY AND THEREFORE SAID ONLY THAT "(THERE ARE ENOUGH CHANGES
WHICH CAN BE SUPERIMPOSED ON THE PRESENT DISTRICTS TO CURE THE MOST
FLAGRANT INEQUALITIES."  273 F.SUPP.,AT 992.  ON FEBRUARY 26, 1968, THE
NEW YORK LEGISLATURE ENACTED THE PLAN BEFORE US.  ON MARCH 20, 1968,
THE DISTRICT COURT APPROVED THE PLAN FOR BOTH THE 1968 AND 1970
CONGRESSIONAL ELECTIONS.  SINCE THE 1968 PRIMARY ELECTION WAS ONLY
THREE MONTHS AWAY ON MARCH 20, WE CANNOT SAY THAT THERE WAS ERROR IN
PERMITTING THE 1968 ELECTION TO PROCEED UNDER THE PLAN DESPITE ITS
CONSTITUTIONAL INFIRMITIES.  SEE KILGARLIN V. HILL, 386 U.S. 120, 121
(1967); MARTIN V. BUSH, 376 U.S. 222, 223 (1964); KIRKPATRICK V.
PREISLER, 390 U.S. 939 (1968).  BUT AMPLE TIME REMAINS TO PROMULGATE A
PLAN MEETING CONSTITUTIONAL STANDARDS BEFORE THE ELECTION MACHINERY
MUST BE SET IN MOTION FOR THE 1970 ELECTION.  WE THEREFORE REVERSE THE
JUDGMENT OF THE DISTRICT COURT INSOFAR AS IT APPROVED THE PLAN FOR USE
IN THE 1970 ELECTION AND REMAND THE CASE FOR THE ENTRY OF A NEW
JUDGMENT CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

APPENDIX TO OPINION OF THE COURT. 

        POPULATION OF NEW YORK'S CONGRESSIONAL DISTRICTS UNDER 1968

PLAN. 

(TABLE OMITTED) 

MR. JUSTICE FORTAS, CONCURRING. 

I CONCUR IN THE JUDGMENT OF THE COURT AND IN ITS OPINION EXCEPT TO
THE EXTENT THAT THE OPINION RELIES UPON THE COURT'S OPINION IN THE
MISSOURI REDISTRICTING CASES, KIRKPATRICK V. PREISLER, ANTE, P. 526,
WHICH I HAVE NOT JOINED FOR THE REASONS STATED IN MY CONCURRING OPINION
IN THOSE CASES. 

NEW YORK DOES NOT ATTEMPT TO DEFEND ITS PLAN AS A GOOD-FAITH EFFORT
TO ACHIEVE DISTRICTS OF APPROXIMATE EQUALITY.  IT ARGUES THAT IT
DEVISED A PLAN BASED UPON THE GROUPING OF DISTRICTS INTO REGIONS.  I
AGREE WITH THE MAJORITY THAT, FOR PURPOSES OF THE CONGRESSIONAL
DISTRICTING HERE INVOLVED, THE STATE MAY NOT SUBSTANTIALLY OR GROSSLY
DISREGARD POPULATION OR RESIDENCE FIGURES IN ORDER TO RECOGNIZE
REGIONAL GROUPINGS WITHIN THE STATE.  SEE MY DISSENT IN AVERY V.
MIDLAND COUNTY, 390 U.S. 474, 495 (1968). 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE STEWART JOINS,
DISSENTING.  /1/ 

WHATEVER ROOM REMAINED UNDER THIS COURT'S PRIOR DECISIONS FOR THE
FREE PLAY OF THE POLITICAL PROCESS IN MATTERS OF REAPPORTIONMENT IS NOW
BUT ALL ELIMINATED BY TODAY'S DRACONIAN JUDGMENTS.  MARCHING TO THE
NONEXISTENT "COMMAND OF ART. I, SEC. 2" OF THE CONSTITUTION, /1A/  THE
COURT NOW TRANSFORMS A POLITICAL SLOGAN INTO A CONSTITUTIONAL
ABSOLUTE.  STRAIT INDEED IS THE PATH OF THE RIGHTEOUS LEGISLATOR. 
SLIDE RULE IN HAND, HE MUST AVOID ALL THOUGHT OF COUNTY LINES, LOCAL
TRADITIONS, POLITICS, HISTORY, AND ECONOMICS, SO AS TO ACHIEVE THE
MAGIC FORMULA:  ONE MAN, ONE VOTE. 

AS MY BROTHERS WHITE AND FORTAS DEMONSTRATE, INSISTENCE ON
MATHEMATICAL PERFECTION DOES NOT MAKE SENSE EVEN ON ITS OWN TERMS. 
CENSUS FIGURES THEMSELVES ARE INEXACT; OUR MOBILE POPULATION RAPIDLY
RENDERS THEM OBSOLETE; LARGE GROUPS OF INELIGIBLE VOTERS ARE UNEVENLY
DISTRIBUTED THROUGHOUT THE STATE.  NEVERTHELESS, THE COURT REFUSES TO
PERMIT ANY ROOM FOR LEGISLATIVE COMMON SENSE TO COMPENSATE FOR CENSUS
BUREAU INADEQUACIES.  IF NO "SCIENTIFIC" DATA ARE AVAILABLE TO JUSTIFY
A DIVERGENCE FROM CENSUS FIGURES, THE COURT HOLDS THAT NOTHING CAN BE
DONE-- "WE MEAN TO OPEN NO AVENUE FOR SUBTERFUGE."  KIRKPATRICK V.
PREISLER, ANTE, AT 535. 

THIS ALL-PERVASIVE DISTRUST OF THE LEGISLATIVE PROCESS IS COMPLETELY
ALIEN TO ESTABLISHED NOTIONS OF JUDICIAL REVIEW.  SEE BUTLER V.
PENNSYLVANIA, 10 HOW.  402 (1851); DAVIS V. DEPARTMENT OF LABOR, 317
U.S. 249 (1942); FLEMMING V. NESTOR, 363 U.S. 603 (1960).  NOR DOES IT
HAVE PRECEDENT IN THE PRIOR REAPPORTIONMENT DECISIONS THEMSELVES. 
"REYNOLDS V. SIMS . . . RECOGNIZED THAT MATHEMATICAL EXACTNESS IS NOT
REQUIRED IN STATE APPORTIONMENT PLANS.  DE MINIMIS DEVIATIONS ARE
UNAVOIDABLE . . . ."  SWANN V. ADAMS, 385 U.S. 440, 444 (1967); SEE
ALSO WESBERRY V. SANDERS, 376 U.S. 1, 18 (1964).  /2/ 

EVEN MORE IMPORTANT, THE COURT'S EXCLUSIVE CONCENTRATION UPON
ARITHMETIC BLINDS IT TO THE REALITIES OF THE POLITICAL PROCESS, AS THE
ROCKEFELLER CASE MAKES SO CLEAR.  THE FACT OF THE MATTER IS THAT THE
RULE OF ABSOLUTE EQUALITY IS PERFECTLY COMPATIBLE WITH "GERRYMANDERING"
OF THE WORST SORT.  A COMPUTER MAY GRIND OUT DISTRICT LINES WHICH CAN
TOTALLY FRUSTRATE THE POPULAR WILL ON AN OVERWHELMING NUMBER OF
CRITICAL ISSUES.  THE LEGISLATURE MUST DO MORE THAN SATISFY ONE MAN,
ONE VOTE; IT MUST CREATE A STRUCTURE WHICH WILL IN FACT AS WELL AS
THEORY BE RESPONSIVE TO THE SENTIMENTS OF THE COMMUNITY.  ON THE RECORD
BEFORE US, HOWEVER, THERE IS ABSOLUTELY NO INDICATION THAT THE NEW YORK
LEGISLATURE CAN SATISFY THIS COURT'S DEMAND FOR ABSOLUTE EQUALITY AND
YET CREATE A STRUCTURE WHICH WILL PERMIT NEW YORK'S MULTITUDE OF
POLITICAL GROUPS TO HAVE A FAIR CHANCE AT HAVING THEIR VOICES HEARD IN
CONGRESS. 

EVEN THE APPELLANT HIMSELF DOES NOT SUGGEST THAT IT IS POSSIBLE TO
CREATE A PROPER APPORTIONMENT PLAN WHICH IS AT THE SAME TIME CONSISTENT
WITH THE DEMANDS OF PERFECT MATHEMATICAL EQUALITY.  THE PLAN HE
ADVANCES CONTEMPLATES A MAXIMUM DEVIATION OF 4.7% FROM THE STATE
AVERAGE, WHICH REPRESENTS AN IMPROVEMENT OF ONLY 1.9 PERCENTAGE POINTS
ON THE STATE'S 6.6% DEVIATION.  MOREOVER, UNDER THE STATE'S PLAN, A
MAJORITY OF THE CONGRESSIONAL DELEGATION CAN REPRESENT NO LESS THAN
49.3% OF THE POPULATION.  THE APPELLANT'S SCHEME "IMPROVES" THIS FIGURE
BY 0.5%, INCREASING THE NUMBER TO 49.8%.  SEE APPELLANT'S APPENDIX D.
PERFECTION, HOWEVER, IS STILL 0.2% AWAY.     ALTHOUGH THE APPELLANT'S
PLAN OFFERS SUCH MARGINAL BENEFITS OF VOTING EGALITARIANISM, AND
ALTHOUGH THE RECORD CONTAINS NO SUGGESTION OF ANY OTHER PLAN WHICH EVEN
ARGUABLY PERMITS THE COHERENT EXPRESSION OF THE POPULAR WILL, THE COURT
REJECTS THE LEGISLATURE'S CONSIDERED PROPOSAL SIMPLY BECAUSE IT SEEKS
TO REMAIN TRUE TO TRADITIONAL COUNTY AND REGIONAL LINES.  IN DOING SO,
THE MAJORITY IGNORES THE SALUTARY WARNING TO BE FOUND IN REYNOLDS V.
SIMS, 377 U.S. 533, 578-579 (1964):  "INDISCRIMINATE DISTRICTING,
WITHOUT ANY REGARD FOR POLITICAL SUBDIVISION OR NATURAL OR HISTORICAL
BOUNDARY LINES, MAY BE LITTLE MORE THAN AN OPEN INVITATION TO PARTISAN
GERRYMANDERING."  YET, TODAY THE COURT CONDEMNS THE LEGISLATURE'S
APPROACH BECAUSE IT "PERMITS) GROUPS OF DISTRICTS WITH DEFINED INTEREST
ORIENTATIONS TO BE OVERREPRESENTED AT THE EXPENSE OF DISTRICTS WITH
DIFFERENT INTEREST ORIENTATIONS."  ANTE, AT 546.  OF COURSE, ALL
DISTRICTING DECISIONS INEVITABLY INVOLVE CHOICES BETWEEN DIFFERENT
INTEREST GROUPS.  BUT AS REYNOLDS RECOGNIZED, LEGISLATURES PREFER TO
FOLLOW TRADITIONAL COUNTY AND REGIONAL LINES SO THAT THE DEMANDS OF
BLATANT PARTISANSHIP WILL BE TEMPERED BY THE CONSTRAINTS OF HISTORY AND
TRADITION.  IF THE COURT BELIEVES IT HAS STRUCK A BLOW TODAY FOR FULLY
RESPONSIVE REPRESENTATIVE DEMOCRACY, IT IS SORELY MISTAKEN.  EVEN MORE
THAN IN THE PAST, DISTRICT LINES ARE LIKELY TO BE DRAWN TO MAXIMIZE THE
POLITICAL ADVANTAGE OF THE PARTY TEMPORARILY DOMINANT IN PUBLIC
AFFAIRS. 

WE DO NOT DEAL HERE WITH THE HOPELESSLY MALAPPORTIONED LEGISLATURE
UNWILLING TO SET ITS OWN HOUSE IN ORDER.  RATHER, THE QUESTION BEFORE
US IS WHETHER THE CONSTITUTION REQUIRES THAT MATHEMATICS BE A
SUBSTITUTE FOR COMMON SENSE IN THE ART OF STATECRAFT.  AS I DO NOT
THINK THAT THE APPORTIONMENT PLANS SUBMITTED BY THE STATES OF NEW YORK
AND MISSOURI CAN PROPERLY BE REGARDED AS OFFENSIVE TO THE REQUIREMENT
OF EQUALITY IMPOSED IN WESBERRY-- A CASE WHOSE CONSTITUTIONAL REASONING
I STILL FIND IT IMPOSSIBLE TO SWALLOW, BUT BY WHOSE DICTATE I CONSIDER
MYSELF BOUND-- I DISSENT. 

I WOULD REVERSE THE JUDGMENTS OF THE DISTRICT COURT IN THE MISSOURI
CASES AND AFFIRM THE DECISION OF THE DISTRICT COURT IN THE NEW YORK
CASE. 

/1/  (THIS OPINION APPLIES ALSO TO NO. 30, KIRKPATRICK V. PREISLER,
ANTE, P. 526.) 

/1A/  SEE ANTE, AT 546; KIRKPATRICK V. PREISLER, ANTE, AT 531.  I
HAVE DISCUSSED IN MY DISSENTING OPINION IN WESBERRY V. SANDERS, 376
U.S. 1, 20 (1964), THE EXTRAORDINARY HISTORICAL LEAP INVOLVED IN
READING THE STRAIGHTFORWARD CONSTITUTIONAL PROVISION THAT "THE HOUSE OF
REPRESENTATIVES SHALL BE COMPOSED OF MEMBERS CHOSEN EVERY SECOND YEAR
BY THE PEOPLE OF THE SEVERAL STATES . . . " AS A COMMAND FOR EQUAL
DISTRICTS. 

/2/  WHILE WESBERRY CAUTIONS THAT "IT MAY NOT BE POSSIBLE TO DRAW
CONGRESSIONAL DISTRICTS WITH MATHEMATICAL PRECISION," 376 U.S.,AT 18,
IT DID NOT ATTEMPT TO DELINEATE THE EXTENT TO WHICH THE STATES MAY
PROPERLY DEVIATE FROM THE "IDEAL." 

MR. JUSTICE WHITE, DISSENTING.  /1/ 

I HAVE CONSISTENTLY JOINED THE COURT'S OPINIONS WHICH ESTABLISH AS
ONE OF THE GROUND RULES FOR LEGISLATIVE DISTRICTING THAT SINGLE MEMBER
DISTRICTS SHOULD BE SUBSTANTIALLY EQUAL IN POPULATION.  I WOULD NOT NOW
DISSENT IF THE COURT'S PRESENT JUDGMENTS REPRESENTED A MEASURABLE
CONTRIBUTION TO THE ENDS WHICH I HAD THOUGHT THE COURT WAS PURSUING IN
THIS AREA, OR EVEN IF I THOUGHT THE OPINIONS NOT VERY USEFUL BUT NOT
HARMFUL EITHER.  WITH ALL DUE RESPECT, HOWEVER, I AM FIRMLY CONVINCED
THAT THE COURT'S NEW RULINGS ARE UNDULY RIGID AND UNWARRANTED
APPLICATIONS OF THE EQUAL PROTECTION CLAUSE WHICH WILL UNNECESSARILY
INVOLVE THE COURTS IN THE ABRASIVE TASK OF DRAWING DISTRICT LINES. 

ACCEPTING FOR CONSTITUTIONAL PURPOSES THAT A STATE MAY ASSIGN THE
TASK OF APPORTIONING ITS LEGISLATURE OR CONGRESSIONAL DELEGATION TO THE
LEGISLATURE ITSELF, I WOULD NOT QUIBBLE WITH THE LEGISLATIVE JUDGMENT
IF VARIATIONS BETWEEN DISTRICTS WERE ACCEPTABLY SMALL.  AND I WOULD BE
WILLING TO ESTABLISH A POPULATION VARIATION FIGURE WHICH IF NOT
EXCEEDED WOULD NORMALLY NOT CALL FOR JUDICIAL INTERVENTION.  AS A RULE
OF THUMB, A VARIATION BETWEEN THE LARGEST AND THE SMALLEST DISTRICT OF
NO MORE THAN 10% TO 15% WOULD SATISFY ME, ABSENT QUITE UNUSUAL
CIRCUMSTANCES NOT PRESENT IN ANY OF THESE CASES.  AT THE VERY LEAST, AT
THIS TRIVIAL LEVEL, I WOULD BE WILLING TO VIEW STATE EXPLANATIONS OF
THE VARIANCE WITH A MORE TOLERANT EYE. 

THIS WOULD BE FAR MORE REASONABLE THAN THE COURT'S DEMAND FOR AN
ABSOLUTE BUT ILLUSORY EQUALITY OR FOR AN APPORTIONMENT PLAN WHICH
APPROACHES THIS GOAL SO NEARLY THAT NO OTHER PLAN CAN BE SUGGESTED
WHICH WOULD COME NEARER.  AS MR. JUSTICE FORTAS DEMONSTRATES, THE 1960
CENSUS FIGURES WERE FAR FROM ACCURATE WHEN THEY WERE COMPILED BY
PROFESSIONAL ENUMERATORS AND STATISTICIANS BENT ON PRECISION, IN 1960. 
MASSIVE GROWTH AND SHIFTS IN POPULATION SINCE 1960 MADE THE 1960
FIGURES EVEN MORE INACCURATE BY 1967.  THAT IS WHY A NEW CENSUS IS
TAKEN EVERY 10 YEARS.  WHEN THE COURT FINDS A 3% VARIATION FROM
SUBSTANTIALLY INEXACT FIGURES CONSTITUTIONALLY IMPERMISSIBLE IT IS
LOSING PERSPECTIVE AND STICKING AT A TRIFLE. 

IT ALSO SEEMS ARBITRARY FOR THE MAJORITY TO DISCARD THE SUGGESTION
OF REYNOLDS V. SIMS, 377 U.S. 533 (1964), THAT IF A LEGISLATURE SEEKS
AN APPORTIONMENT PLAN WHICH RESPECTS THE BOUNDARIES OF POLITICAL
SUBDIVISIONS, SOME VARIATIONS FROM ABSOLUTE EQUALITY WOULD BE
CONSTITUTIONALLY PERMISSIBLE.  OF COURSE, REYNOLDS INVOLVED STATE
LEGISLATIVE APPORTIONMENT AND TOOK PAINS TO SAY THAT THERE MAY BE MORE
LEEWAY IN THAT CONTEXT.  BUT THE COURT INVOKES REYNOLDS TODAY AND IN NO
WAY DISTINGUISHES FEDERAL FROM STATE DISTRICTING. 

REYNOLDS NOTED THAT "(INDISCRIMINATE DISTRICTING, WITHOUT ANY REGARD
FOR POLITICAL SUBDIVISION OR NATURAL OR HISTORICAL BOUNDARY LINES, MAY
BE LITTLE MORE THAN AN OPEN INVITATION TO PARTISAN GERRYMANDERING." 
377 U.S.,AT 578-579.  THE COURT NEVERTHELESS NOW RULES THAT REGARD FOR
THESE BOUNDARIES IS NO JUSTIFICATION FOR DISTRICTS WHICH VARY NO MORE
THAN 3% FROM THE NORM WHERE ANOTHER PLAN WHICH MAY HAVE NO REGARD FOR
DISTRICT LINES REDUCES THE VARIATION TO AN EVEN SMALLER FIGURE.  I HAVE
SIMILAR OBJECTIONS TO THE COURT'S REJECTION OF GEOGRAPHICAL COMPACTNESS
AS AN ACCEPTABLE JUSTIFICATION FOR MINOR VARIATIONS AMONG CONGRESSIONAL
DISTRICTS.  THE REJECTION OF THE VIRTUES OF COMPACTNESS WILL NOT BE
LOST ON THOSE WHO WOULD USE CONGRESSIONAL AND LEGISLATIVE DISTRICTING
TO BURY THEIR POLITICAL OPPOSITION. 

IN REALITY, OF COURSE, DISTRICTING IS ITSELF A GERRYMANDERING IN THE
SENSE THAT IT REPRESENTS A COMPLEX BLEND OF POLITICAL, ECONOMIC,
REGIONAL, AND HISTORICAL CONSIDERATIONS.  IN TERMS OF THE GERRYMANDER,
THE SITUATION WILL NOT BE MUCH DIFFERENT IF EQUALITY MEANS WHAT IT
LITERALLY SAYS-- A ZERO VARIATION-- RATHER THAN ONLY "SUBSTANTIAL"
EQUALITY WHICH WOULD COUNTENANCE SOME VARIATIONS AMONG LEGISLATIVE
DISTRICTS.  EITHER STANDARD WILL PREVENT A MINORITY OF THE POPULATION
OR A MINORITY PARTY FROM CONSISTENTLY CONTROLLING THE STATE LEGISLATURE
OF A CONGRESSIONAL DELEGATION, AND BOTH ARE POWERFUL FORCES TOWARD
EQUALIZING VOTER INFLUENCE ON LEGISLATIVE PERFORMANCE.  IN TERMS OF
EFFECTIVE REPRESENTATION FOR ALL VOTERS THERE ARE ONLY MINUSCULE
DIFFERENCES BETWEEN THE TWO STANDARDS.  BUT NEITHER RULE CAN ALONE
PREVENT DELIBERATE PARTISAN GERRYMANDERING IF THAT IS CONSIDERED AN
EVIL WHICH THE FOURTEENTH AMENDMENT SHOULD ATTEMPT TO PROSCRIBE. 

TODAY'S DECISIONS ON THE ONE HAND REQUIRE PRECISE ADHERENCE TO
ADMITTEDLY INEXACT CENSUS FIGURES, AND ON THE OTHER DOWNGRADE A
RESTRAINT ON A FAR GREATER POTENTIAL THREAT TO EQUALITY OF
REPRESENTATION, THE GERRYMANDER.  LEGISLATURES INTENT ON MINIMIZING THE
REPRESENTATION OF SELECTED POLITICAL OR RACIAL GROUPS ARE INVITED TO
IGNORE POLITICAL BOUNDARIES AND COMPACT DISTRICTS SO LONG AS THEY
ADHERE TO POPULATION EQUALITY AMONG DISTRICTS USING STANDARDS WHICH WE
KNOW AND THEY KNOW ARE SOMETIMES QUITE INCORRECT.  I SEE LITTLE MERIT
IN SUCH A CONFUSION OF PRIORITIES. 

MOREOVER, TODAY'S DECISIONS WILL LEAD TO AN UNNECESSARY INTRUSION OF
THE JUDICIARY INTO LEGISLATIVE BUSINESS.  IT WOULD BE ONE THING IF
ABSOLUTE EQUALITY WERE POSSIBLE.  BUT, ADMITTEDLY, IT IS NOT.  THE
COURT MAY BE GROPING FOR A CLEAN-CUT, PER SE RULE WHICH WILL MINIMIZE
CONFRONTATIONS BETWEEN COURTS AND LEGISLATURES WHILE ALSO SATISFYING
THE FOURTEENTH AMENDMENT.  IF SO, THE COURT IS WIDE OF THE MARK. 
TODAY'S RESULTS SIMPLY SHIFT THE AREA OF DISPUTE A FEW PERCENTAGE
POINTS DOWN THE SCALE; THE COURTS WILL NOW BE ENGAGED IN QUIBBLING
DISPUTES OVER SUCH QUESTIONS AS WHETHER A PLAN WITH A 1% VARIATION IS
"BETTER" THAN ONE WITH A LARGER VARIATION, SAY 1.1% OR EVEN 2%.  IF
COUNTY AND MUNICIPAL BOUNDARIES ARE TO BE IGNORED, A COMPUTER CAN
PRODUCE COUNTLESS PLANS FOR ABSOLUTE POPULATION EQUALITY, ONE DIFFERING
VERY LITTLE FROM ANOTHER, BUT EACH HAVING ITS OWN VERY DIFFERENT
POLITICAL RAMIFICATIONS.  ULTIMATELY, THE COURTS MAY BE ASKED TO DECIDE
WHETHER SOME FAMILIES IN AN APARTMENT HOUSE SHOULD VOTE IN ONE DISTRICT
AND SOME IN ANOTHER, IF THAT WOULD COME CLOSER TO THE STANDARD OF
APPARENT EQUALITY.  USING THE SPACIOUS LANGUAGE OF THE EQUAL PROTECTION
CLAUSE TO INJECT THE COURTS INTO THESE MINOR SQUABBLES IS AN
UNACCEPTABLE PRE-EMPTION OF THE LEGISLATIVE FUNCTION.  NOT ONLY WILL
THE COURT'S NEW RULE NECESSARILY PRECIPITATE A NEW ROUND OF
CONGRESSIONAL AND LEGISLATIVE DISTRICTING, BUT ALSO I FEAR THAT IN THE
LONG RUN THE COURTS, RATHER THAN THE LEGISLATURES OR NONPARTISAN
COMMISSIONS, WILL BE MAKING MOST OF THE DISTRICTING DECISIONS IN THE
SEVERAL STATES.  SINCE EVEN AT BEST, WITH COMPACT AND EQUAL DISTRICTS,
THE FINAL BOUNDARY LINES UNAVOIDABLE HAVE SIGNIFICANT POLITICAL
REPERCUSSIONS, THE COURTS SHOULD NOT DRAW DISTRICT LINES THEMSELVES
UNNECESSARILY.  I THEREFORE DISSENT. 

/1/  (THIS OPINION APPLIES ALSO TO NO. 30, KIRKPATRICK V. PREISLER,
ANTE, P. 526.) 

ROBERT B. MCKAY ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

GEORGE D. ZUCKERMAN, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED
THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, PRO SE, AND SAMUEL A. HIRSHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL. 
..END :

















STANLEY V. GEORGIA, 394 U.S. 557 


       STANLEY V. GEORGIA. 

        APPEAL FROM THE SUPREME COURT OF GEORGIA. 

        NO. 293.  ARGUED JANUARY 14-15, 1969.-- DECIDED APRIL 7,

           1969. 


UNDER AUTHORITY OF A WARRANT TO SEARCH APPELLANT'S HOME FOR EVIDENCE
OF HIS ALLEGED BOOKMAKING ACTIVITIES, OFFICERS FOUND SOME FILMS IN HIS
BEDROOM.  THE FILMS WERE PROJECTED AND DEEMED TO BE OBSCENE.  APPELLANT
WAS ARRESTED FOR THEIR POSSESSION.  HE WAS THEREAFTER INDICTED, TRIED,
AND CONVICTED FOR "KNOWINGLY HAVING) POSSESSION OF . . . OBSCENE
MATTER" IN VIOLATION OF A GEORGIA LAW.  THE GEORGIA SUPREME COURT
AFFIRMED, HOLDING IT "NOT ESSENTIAL TO AN INDICTMENT CHARGING ONE WITH
POSSESSION OF OBSCENE MATTER THAT IT BE ALLEGED THAT SUCH POSSESSION
WAS 'WITH INTENT TO SELL, EXPOSE OR CIRCULATE THE SAME.'"  APPELLANT
CONTENDS THAT THE GEORGIA OBSCENITY STATUTE IS UNCONSITUTIONAL INSOFAR
AS IT PUNISHES MERE PRIVATE POSSESSION OF OBSCENE MATTER.  GEORGIA,
RELYING ON ROTH V. UNITED STATES, 354 U.S. 476, ARGUES THE STATUTE'S
VALIDITY ON THE GROUND THAT "OBSCENITY IS NOT WITHIN THE AREA OF
CONSTITUTIONALLY PROTECTED SPEECH OR PRESS."  ID., AT 485.  HELD:  THE
FIRST AMENDMENT AS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
PROHIBITS MAKING MERE PRIVATE POSSESSION OF OBSCENE MATERIAL A CRIME. 
PP. 560-568. 

(A) NEITHER ROTH, SUPRA, NOR SUBSEQUENT DECISIONS OF THE COURT WERE
MADE IN THE CONTEXT OF A STATUTE PUNISHING MERE PRIVATE POSSESSION OF
OBSCENE MATERIAL, BUT INVOLVED GOVERNMENTAL POWER TO PROHIBIT OR
REGULATE CERTAIN PUBLIC ACTIONS RESPECTING OBSCENE MATTER.  PP. 560
564. 

(B) THE CONSTITUTION PROTECTS THE RIGHT TO RECEIVE INFORMATION AND
IDEAS, REGARDLESS OF THEIR SOCIAL WORTH, AND TO BE GENERALLY FREE FROM
GOVERNMENTAL INTRUSIONS INTO ONE'S PRIVACY AND CONTROL OF ONE'S
THOUGHTS.  PP. 564-566. 

(C) THE STATE MAY NOT PROHIBIT MERE POSSESSION OF OBSCENE MATTER ON
THE GROUND THAT IT MAY LEAD TO ANTISOCIAL CONDUCT, ROTH, SUPRA,
DISTINGUISHED, OR PROSCRIBE SUCH POSSESSION ON THE GROUND THAT IT IS A
NECESSARY INCIDENT TO A STATUTORY SCHEME PROHIBITING DISTRIBUTION, SEE
SMITH V. CALIFORNIA, 361 U.S. 147.  PP. 566-568. 

224 GA. 259, 161 S.E.2D 309, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

AN INVESTIGATION OF APPELLANT'S ALLEGED BOOKMAKING ACTIVITIES LED TO
THE ISSUANCE OF A SEARCH WARRANT FOR APPELLANT'S HOME.  UNDER AUTHORITY
OF THIS WARRANT, FEDERAL AND STATE AGENTS SECURED ENTRANCE.  THEY FOUND
VERY LITTLE EVIDENCE OF BOOKMAKING ACTIVITY, BUT WHILE LOOKING THROUGH
A DESK DRAWER IN AN UPSTAIRS BEDROOM, ONE OF THE FEDERAL AGENTS,
ACCOMPANIED BY A STATE OFFICER, FOUND THREE REELS OF EIGHT-MILLIMETER
FILM.  USING A PROJECTOR AND SCREEN FOUND IN AN UPSTAIRS LIVING ROOM,
THEY VIEWED THE FILMS.  THE STATE OFFICER CONCLUDED THAT THEY WERE
OBSCENE AND SEIZED THEM.  SINCE A FURTHER EXAMINATION OF THE BEDROOM
INDICATED THAT APPELLANT OCCUPIED IT, HE WAS CHARGED WITH POSSESSION OF
OBSCENE MATTER AND PLACED UNDER ARREST.  HE WAS LATER INDICTED FOR
"KNOWINGLY HAVING) POSSESSION OF . . . OBSCENE MATTER" IN VIOLATION OF
GEORGIA LAW.  /1/  APPELLANT WAS TRIED BEFORE A JURY AND CONVICTED. 
THE SUPREME COURT OF GEORGIA AFFIRMED.  STANLEY V. STATE, 224 GA. 259,
161 S.E.2D 309 (1968).  WE NOTED PROBABLE JURISDICTION OF AN APPEAL
BROUGHT UNDER 28 U.S.C. 1257(2).  393 U.S. 819 (1968). 

APPELLANT RAISES SEVERAL CHALLENGES TO THE VALIDITY OF HIS
CONVICTION.  /2/  WE FIND IT NECESSARY TO CONSIDER ONLY ONE.  APPELLANT
ARGUES HERE, AND ARGUED BELOW, THAT THE GEORGIA OBSCENITY STATUTE,
INSOFAR AS IT PUNISHES MERE PRIVATE POSSESSION OF OBSCENE MATTER,
VIOLATES THE FIRST AMENDMENT, AS MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT.  FOR REASONS SET FORTH BELOW, WE AGREE THAT THE
MERE PRIVATE POSSESSION OF OBSCENE MATTER CANNOT CONSTITUTIONALLY BE
MADE A CRIME. 

THE COURT BELOW SAW NO VALID CONSTITUTIONAL OBJECTION TO THE GEORGIA
STATUTE, EVEN THOUGH IT EXTENDS FURTHER THAN THE TYPICAL STATUTE
FORBIDDING COMMERCIAL SALES OF OBSCENE MATERIAL.  IT HELD THAT "(IT IS
NOT ESSENTIAL TO AN INDICTMENT CHARGING ONE WITH POSSESSION OF OBSCENE
MATTER THAT IT BE ALLEGED THAT SUCH POSSESSION WAS 'WITH INTENT TO
SELL, EXPOSE OR CIRCULATE THE SAME.'"  STANLEY V. STATE, SUPRA, AT 261,
161 S.E.2D, AT 311.  THE STATE AND APPELLANT BOTH AGREE THAT THE
QUESTION HERE BEFORE US IS WHETHER "A STATUTE IMPOSING CRIMINAL
SANCTIONS UPON THE MERE (KNOWING) POSSESSION OF OBSCENE MATTER" IS
CONSTITUTIONAL.  IN THIS CONTEXT, GEORGIA CONCEDES THAT THE PRESENT
CASE APPEARS TO BE ONE OF "FIRST IMPRESSION . . . ON THIS EXACT POINT,"
/3/ BUT CONTENDS THAT SINCE "OBSCENITY IS NOT WITHIN THE AREA OF
CONSTITUTIONALLY PROTECTED SPEECH OR PRESS," ROTH V. UNITED STATES, 354
U.S. 476, 485 (1957), THE STATES ARE FREE, SUBJECT TO THE LIMITS OF
OTHER PROVISIONS OF THE CONSTITUTION, SEE, E.G., GINSBERG V. NEW YORK,
390 U.S. 629, 637-645 (1968), TO DEAL WITH IT ANY WAY DEEMED NECESSARY,
JUST AS THEY MAY DEAL WITH POSSESSION OF OTHER THINGS THOUGHT TO BE
DETRIMENTAL TO THE WELFARE OF THEIR CITIZENS.  IF THE STATE CAN PROTECT
THE BODY OF A CITIZEN, MAY IT NOT, ARGUES GEORGIA, PROTECT HIS MIND? 

IT IS TRUE THAT ROTH DOES DECLARE, SEEMINGLY WITHOUT QUALIFICATION,
THAT OBSCENITY IS NOT PROTECTED BY THE FIRST AMENDMENT.  THAT STATEMENT
HAS BEEN REPEATED IN VARIOUS FORMS IN SUBSEQUENT CASES.  SEE, E.G.,
SMITH V. CALIFORNIA, 361 U.S. 147, 152 (1959); JACOBELLIS V. OHIO, 378
U.S. 184, 186-187 (1964) (OPINION OF BRENNAN, J.); GINSBERG V. NEW
YORK, SUPRA, AT 635.  HOWEVER, NEITHER ROTH NOR ANY SUBSEQUENT DECISION
OF THIS COURT DEALT WITH THE PRECISE PROBLEM INVOLVED IN THE PRESENT
CASE.  ROTH WAS CONVICTED OF MAILING OBSCENE CIRCULARS AND ADVERTISING,
AND AN OBSCENE BOOK, IN VIOLATION OF A FEDERAL OBSCENITY STATUTE.  /4/
THE DEFENDANT IN A COMPANION CASE, ALBERTS V. CALIFORNIA, 354 U.S. 476
(1957), WAS CONVICTED OF "LEWDLY KEEPING FOR SALE OBSCENE AND INDECENT
BOOKS, AND (OF) WRITING, COMPOSING AND PUBLISHING AN OBSCENE
ADVERTISEMENT OF THEM . . . ."  ID., AT 481.  NONE OF THE STATEMENTS
CITED BY THE COURT IN ROTH FOR THE PROPOSITION THAT "THIS COURT HAS
ALWAYS ASSUMED THAT OBSCENITY IS NOT PROTECTED BY THE FREEDOMS OF
SPEECH AND PRESS" WERE MADE IN THE CONTEXT OF A STATUTE PUNISHING MERE
PRIVATE POSSESSION OF OBSCENE MATERIAL; THE CASES CITED DEAL FOR THE
MOST PART WITH USE OF THE MAILS TO DISTRIBUTE OBJECTIONABLE MATERIAL OR
WITH SOME FORM OF PUBLIC DISTRIBUTION OR DISSEMINATION.  /5/  MOREOVER,
NONE OF THIS COURT'S DECISIONS SUBSEQUENT TO ROTH INVOLVED PROSECUTION
FOR PRIVATE POSSESSION OF OBSCENE MATERIALS.  THOSE CASES DEALT WITH
THE POWER OF THE STATE AND FEDERAL GOVERNMENTS TO PROHIBIT OR REGULATE
CERTAIN PUBLIC ACTIONS TAKEN OR INTENDED TO BE TAKEN WITH RESPECT TO
OBSCENE MATTER.  /6/  INDEED, WITH ONE EXCEPTION, WE HAVE BEEN UNABLE
TO DISCOVER ANY CASE IN WHICH THE ISSUE IN THE PRESENT CASE HAS BEEN
FULLY CONSIDERED.  /7/ 

IN THIS CONTEXT, WE DO NOT BELIEVE THAT THIS CASE CAN BE DECIDED
SIMPLY BY CITING ROTH.  ROTH AND ITS PROGENY CERTAINLY DO MEAN THAT THE
FIRST AND FOURTEENTH AMENDMENTS RECOGNIZE A VALID GOVERNMENTAL INTEREST
IN DEALING WITH THE PROBLEM OF OBSCENITY.  BUT THE ASSERTION OF THAT
INTEREST CANNOT, IN EVERY CONTEXT, BE INSULATED FROM ALL CONSTITUTIONAL
PROTECTIONS.  NEITHER ROTH NOR ANY OTHER DECISION OF THIS COURT REACHES
THAT FAR.  AS THE COURT SAID IN ROTH ITSELF, "(CEASELESS VIGILANCE IS
THE WATCHWORD TO PREVENT . . . EROSION (OF FIRST AMENDMENT RIGHTS) BY
CONGRESS OR BY THE STATES.  THE DOOR BARRING FEDERAL AND STATE
INTRUSION INTO THIS AREA CANNOT BE LEFT AJAR; IT MUST BE KEPT TIGHTLY
CLOSED AND OPENED ONLY THE SLIGHTEST CRACK NECESSARY TO PREVENT
ENCROACHMENT UPON MORE IMPORTANT INTERESTS."  354 U.S.,AT 488.  ROTH
AND THE CASES FOLLOWING IT DISCERNED SUCH AN "IMPORTANT INTEREST" IN
THE REGULATION OF COMMERCIAL DISTRIBUTION OF OBSCENE MATERIAL.  THAT
HOLDING CANNOT FORECLOSE AN EXAMINATION OF THE CONSTITUTIONAL
IMPLICATIONS OF A STATUTE FORBIDDING MERE PRIVATE POSSESSION OF SUCH
MATERIAL. 

IT IS NOW WELL ESTABLISHED THAT THE CONSTITUTION PROTECTS THE RIGHT
TO RECEIVE INFORMATION AND IDEAS.  "THIS FREEDOM (OF SPEECH AND PRESS)
. . .NECESSARILY PROTECTS THE RIGHT TO RECEIVE . . . ."  MARTIN V. CITY
OF STRUTHERS, 319 U.S. 141, 143 (1943); SEE GRISWOLD V. CONNECTICUT,
381 U.S. 479, 482 (1965); LAMONT V. POSTMASTER GENERAL, 381 U.S. 301,
307-308 (1965) (BRENNAN, J., CONCURRING); CF. PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510 (1925).  THIS RIGHT TO RECEIVE INFORMATION AND
IDEAS, REGARDLESS OF THEIR SOCIAL WORTH, SEE WINTERS V. NEW YORK, 333
U.S. 507, 510 (1948), IS FUNDAMENTAL TO OUR FREE SOCIETY.  MOREOVER, IN
THE CONTEXT OF THIS CASE-- A PROSECUTION FOR MERE POSSESSION OF PRINTED
OR FILMED MATTER IN THE PRIVACY OF A PERSON'S OWN HOME-- THAT RIGHT
TAKES ON AN ADDED DIMENSION.  FOR ALSO FUNDAMENTAL IS THE RIGHT TO BE
FREE, EXCEPT IN VERY LIMITED CIRCUMSTANCES, FROM UNWANTED GOVERNMENTAL
INTRUSIONS INTO ONE'S PRIVACY. 

"THE MAKERS OF OUR CONSTITUTION UNDERTOOK TO SECURE CONDITIONS
FAVORABLE TO THE PURSUIT OF HAPPINESS.  THEY RECOGNIZED THE
SIGNIFICANCE OF MAN'S SPIRITUAL NATURE, OF HIS FEELINGS AND OF HIS
INTELLECT.  THEY KNEW THAT ONLY A PART OF THE PAIN, PLEASURE AND
SATISFACTIONS OF LIFE ARE TO BE FOUND IN MATERIAL THINGS.  THEY SOUGHT
TO PROTECT AMERICANS IN THEIR BELIEFS, THEIR THOUGHTS, THEIR EMOTIONS
AND THEIR SENSATIONS.  THEY CONFERRED, AS AGAINST THE GOVERNMENT, THE
RIGHT TO BE LET ALONE-- THE MOST COMPREHENSIVE OF RIGHTS AND THE RIGHT
MOST VALUED BY CIVILIZED MAN."  OLMSTEAD V. UNITED STATES, 277 U.S.
438, 478 (1928) (BRANDEIS, J., DISSENTING).  SEE GRISWOLD V.
CONNECTICUT, SUPRA; CF. NAACP V. ALABAMA, 357 U.S. 449, 462 (1958). 

THESE ARE THE RIGHTS THAT APPELLANT IS ASSERTING IN THE CASE BEFORE
US.  HE IS ASSERTING THE RIGHT TO READ OR OBSERVE WHAT HE PLEASES-- THE
RIGHT TO SATISFY HIS INTELLECTUAL AND EMOTIONAL NEEDS IN THE PRIVACY OF
HIS OWN HOME.  HE IS ASSERTING THE RIGHT TO BE FREE FROM STATE INQUIRY
INTO THE CONTENTS OF HIS LIBRARY.  GEORGIA CONTENDS THAT APPELLANT DOES
NOT HAVE THESE RIGHTS, THAT THEY ARE CERTAIN TYPES OF MATERIALS THAT
THE INDIVIDUAL MAY NOT READ OR EVEN POSSESS.  GEORGIA JUSTIFIES THIS
ASSERTION BY ARGUING THAT THE FILMS IN THE PRESENT CASE ARE OBSCENE. 
BUT WE THINK THAT MERE CATEGORIZATION OF THESE FILMS AS "OBSCENE" IS
INSUFFICIENT JUSTIFICATION FOR SUCH A DRASTIC INVASION OF PERSONAL
LIBERTIES GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  WHATEVER
MAY BE THE JUSTIFICATIONS FOR OTHER STATUTES REGULATING OBSCENITY, WE
DO NOT THINK THEY REACH INTO THE PRIVACY OF ONE'S OWN HOME.  IF THE
FIRST AMENDMENT MEANS ANYTHING, IT MEANS THAT A STATE HAS NO BUSINESS
TELLING A MAN, SITTING ALONE IN HIS OWN HOUSE, WHAT BOOKS HE MAY READ
OR WHAT FILMS HE MAY WATCH.  OUR WHOLE CONSTITUTIONAL HERITAGE REBELS
AT THE THOUGHT OF GIVING GOVERNMENT THE POWER TO CONTROL MEN'S MINDS. 

AND YET, IN THE FACE OF THESE TRADITIONAL NOTIONS OF INDIVIDUAL
LIBERTY, GEORGIA ASSERTS THE RIGHT TO PROTECT THE INDIVIDUAL'S MIND
FROM THE EFFECTS OF OBSCENITY.  WE ARE NOT CERTAIN THAT THIS ARGUMENT
AMOUNTS TO ANYTHING MORE THAN THE ASSERTION THAT THE STATE HAS THE
RIGHT TO CONTROL THE MORAL CONTENT OF A PERSON'S THOUGHTS.  /8/  TO
SOME, THIS MAY BE A NOBLE PURPOSE, BUT IT IS WHOLLY INCONSISTENT WITH
THE PHILOSOPHY OF THE FIRST AMENDMENT.  AS THE COURT SAID IN KINGSLEY
INTERNATIONAL PICTURES CORP. V. REGENTS, 360 U.S. 684, 688-689 (1959),
"(THIS ARGUMENT MISCONCEIVES WHAT IT IS THAT THE CONSTITUTION
PROTECTS.  ITS GUARANTEE IS NOT CONFINED TO THE EXPRESSION OF IDEAS
THAT ARE CONVENTIONAL OR SHARED BY A MAJORITY.  . . . AND IN THE REALM
OF IDEAS IT PROTECTS EXPRESSION WHICH IS ELOQUENT NO LESS THAN THAT
WHICH IS UNCONVINCING."  CF. JOSEPH BURSTYN, INC. V. WILSON, 343 U.S.
495 (1952).  NOR IS IT RELEVANT THAT OBSCENE MATERIALS IN GENERAL, OR
THE PARTICULAR FILMS BEFORE THE COURT, ARE ARGUABLY DEVOID OF ANY
IDEOLOGICAL CONTENT.  THE LINE BETWEEN THE TRANSMISSION OF IDEAS AND
MERE ENTERTAINMENT IS MUCH TOO ELUSIVE FOR THIS COURT TO DRAW, IF
INDEED SUCH A LINE CAN BE DRAWN AT ALL.  SEE WINTERS V. NEW YORK,
SUPRA, AT 510.  WHATEVER THE POWER OF THE STATE TO CONTROL PUBLIC
DISSEMINATION OF IDEAS INIMICAL TO THE PUBLIC MORALITY, IT CANNOT
CONSTITUTIONALLY PREMISE LEGISLATION ON THE DESIRABILITY OF CONTROLLING
A PERSON'S PRIVATE THOUGHTS. 

PERHAPS RECOGNIZING THIS, GEORGIA ASSERTS THAT EXPOSURE TO OBSCENE
MATERIALS MAY LEAD TO DEVIANT SEXUAL BEHAVIOR OR CRIMES OF SEXUAL
VIOLENCE.  THERE APPEARS TO BE LITTLE EMPIRICAL BASIS FOR THAT
ASSERTION.  /9/  BUT MORE IMPORTANT, IF THE STATE IS ONLY CONCERNED
ABOUT PRINTED OR FILMED MATERIALS INDUCING ANTISOCIAL CONDUCT, WE
BELIEVE THAT IN THE CONTEXT OF PRIVATE CONSUMPTION OF IDEAS AND
INFORMATION WE SHOULD ADHERE TO THE VIEW THAT "(AMONG FREE MEN, THE
DETERRENTS ORDINARILY TO BE APPLIED TO PREVENT CRIME ARE EDUCATION AND
PUNISHMENT FOR VIOLATIONS OF THE LAW . . ."  WHITNEY V. CALIFORNIA, 274
U.S. 357, 378 (1927) (BRANDEIS, J., CONCURRING).  SEE EMERSON, TOWARD A
GENERAL THEORY OF THE FIRST AMENDMENT, 72 YALE L.J. 877, 938 (1963). 
GIVEN THE PRESENT STATE OF KNOWLEDGE, THE STATE MAY NO MORE PROHIBIT
MERE POSSESSION OF OBSCENE MATTER ON THE GROUND THAT IT MAY LEAD TO
ANTISOCIAL CONDUCT THAN IT MAY PROHIBIT POSSESSION OF CHEMISTRY BOOKS
ON THE GROUND THAT THEY MAY LEAD TO THE MANUFACTURE OF HOMEMADE
SPIRITS. 

IT IS TRUE THAT IN ROTH THIS COURT REJECTED THE NECESSITY OF PROVING
THAT EXPOSURE TO OBSCENE MATERIAL WOULD CREATE A CLEAR AND PRESENT
DANGER OF ANTISOCIAL CONDUCT OR WOULD PROBABLY INDUCE ITS RECIPIENTS TO
SUCH CONDUCT.  354 U.S.,AT 486-487.  BUT THAT CASE DEALT WITH PUBLIC
DISTRIBUTION OF OBSCENE MATERIALS AND SUCH DISTRIBUTION OF SUBJECT TO
DIFFERENT OBJECTIONS.  FOR EXAMPLE, THERE IS ALWAYS THE DANGER THAT
OBSCENE MATERIAL MIGHT FALL INTO THE HANDS OF CHILDREN, SEE GINSBERG V.
NEW YORK, SUPRA, OR THAT IT MIGHT INTRUDE UPON THE SENSIBILITIES OR
PRIVACY OF THE GENERAL PUBLIC.  /10/  SEE REDRUP V. NEW YORK, 386 U.S.
767, 769 (1967).  NO SUCH DANGERS ARE PRESENT IN THIS CASE. 

FINALLY, WE ARE FACED WITH THE ARGUMENT THAT PROHIBITION OF
POSSESSION OF OBSCENE MATERIALS IS A NECESSARY INCIDENT TO STATUTORY
SCHEMES PROHIBITING DISTRIBUTION.  THAT ARGUMENT IS BASED ON ALLEGED
DIFFICULTIES OF PROVING AN INTENT TO DISTRIBUTE OR IN PRODUCING
EVIDENCE OF ACTUAL DISTRIBUTION.  WE ARE NOT CONVINCED THAT SUCH
DIFFICULTIES EXIST, BUT EVEN IF THEY DID WE DO NOT THINK THAT THEY
WOULD JUSTIFY INFRINGEMENT OF THE INDIVIDUAL'S RIGHT TO READ OR OBSERVE
WHAT HE PLEASES.  BECAUSE THAT RIGHT IS SO FUNDAMENTAL TO OUR SCHEME OF
INDIVIDUAL LIBERTY, ITS RESTRICTION MAY NOT BE JUSTIFIED BY THE NEED TO
EASE THE ADMINISTRATION OF OTHERWISE VALID CRIMINAL LAWS.  SEE SMITH V.
CALIFORNIA, 361 U.S. 147 (1959). 

WE HOLD THAT THE FIRST AND FOURTEENTH AMENDMENTS PROHIBIT MAKING
MERE PRIVATE POSSESSION OF OBSCENE MATERIAL A CRIME.  /11/  ROTH AND
THE CASES FOLLOWING THAT DECISION ARE NOT IMPAIRED BY TODAY'S HOLDING. 
AS WE HAVE SAID, THE STATES RETAIN BROAD POWER TO REGULATE OBSCENITY;
THAT POWER SIMPLY DOES NOT EXTEND TO MERE POSSESSION BY THE INDIVIDUAL
IN THE PRIVACY OF HIS OWN HOME.  ACCORDINGLY, THE JUDGMENT OF THE COURT
BELOW IS REVERSED AND THE CASE IS REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.                    IT IS SO ORDERED. 

/1/  "ANY PERSON WHO SHALL KNOWINGLY BRING OR CAUSE TO BE BROUGHT
INTO THIS STATE FOR SALE OR EXHIBITION, OR WHO SHALL KNOWINGLY SELL OR
OFFER TO SELL, OR WHO SHALL KNOWINGLY LEND OR GIVE AWAY OR OFFER TO
LEND OR GIVE AWAY, OR WHO SHALL KNOWINGLY HAVE POSSESSION OF, OR WHO
SHALL KNOWINGLY EXHIBIT OR TRANSMIT TO ANOTHER, ANY OBSCENE MATTER, OR
WHO SHALL KNOWINGLY ADVERTISE FOR SALE BY ANY FORM OF NOTICE, PRINTED,
WRITTEN, OR VERBAL, ANY OBSCENE MATTER, OR WHO SHALL KNOWINGLY
MANUFACTURE, DRAW, DUPLICATE OR PRINT ANY OBSCENE MATTER WITH INTENT TO
SELL, EXPOSE OR CIRCULATE THE SAME, SHALL, IF SUCH PERSON HAS KNOWLEDGE
OR REASONABLY SHOULD KNOW OF THE OBSCENE NATURE OF SUCH MATTER, BE
GUILTY OF A FELONY, AND, UPON CONVICTION THEREOF, SHALL BE PUNISHED BY
CONFINEMENT IN THE PENITENTIARY FOR NOT LESS THAN ONE YEAR NOR MORE
THAN FIVE YEARS:  PROVIDED, HOWEVER, IN THE EVENT THE JURY SO
RECOMMENDS, SUCH PERSON MAY BE PUNISHED AS FOR A MISDEMEANOR.  AS USED
HEREIN, A MATTER IS OBSCENE IF, CONSIDERED AS A WHOLE, APPLYING
CONTEMPORARY COMMUNITY STANDARDS, ITS PREDOMINANT APPEAL IS TO PRURIENT
INTEREST, I.E., A SHAMEFUL OR MORBID INTEREST IN NUDITY, SEX OR
EXCRETION."  GA. CODE ANN. SEC. 26-6301 (SUPP. 1968). 

/2/  APPELLANT DOES NOT ARGUE THAT THE FILMS ARE NOT OBSCENE.  FOR
THE PURPOSE OF THIS OPINION, WE ASSUME THAT THEY ARE OBSCENE UNDER ANY
OF THE TESTS ADVANCED BY MEMBERS OF THIS COURT.  SEE REDRUP V. NEW
YORK, 386 U.S. 767 (1967). 

/3/  THE ISSUE WAS BEFORE THE COURT IN MAPP V. OHIO, 367 U.S.643
(1961), BUT THAT CASE WAS DECIDED ON OTHER GROUNDS.  MR. JUSTICE
STEWART, ALTHOUGH DISAGREEING WITH THE MAJORITY OPINION IN MAPP, WOULD
HAVE REVERSED THE JUDGMENT IN THAT CASE ON THE GROUND THAT THE OHIO
STATUTE PROSCRIBING MERE POSSESSION OF OBSCENE MATERIAL WAS "NOT
'CONSISTENT WITH THE RIGHTS OF FREE THOUGHT AND EXPRESSION ASSURED
AGAINST STATE ACTION BY THE FOURTEENTH AMENDMENT.'"  ID., AT 672. 

/4/  18 U.S.C. 1461. 

/5/  EX PARTE JACKSON, 96 U.S. 727, 736-737 (1878) (USE OF THE
MAILS); UNITED STATES V. CHASE, 135 U.S. 255, 261 (1890) (USE OF THE
MAILS); ROBERTSON V. BALDWIN, 165 U.S. 275, 281 (1897) (PUBLICATION);
PUBLIC CLEARING HOUSE V. COYNE, 194 U.S. 497, 508 (1904) (USE OF
MAILS); HOKE V. UNITED STATES, 227 U.S. 308, 322 (1913) (USE OF
INTERSTATE FACILITIES); NEAR V. MINNESOTA, 283 U.S. 697, 716 (1931)
(PUBLICATION); CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571-572
(1942) (UTTERANCES); HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, 158
(1946) (USE OF MAILS); WINTERS V. NEW YORK, 333 U.S. 507, 510 (1948)
(POSSESSION WITH INTENT TO SELL); BEAUHARNAIS V. ILLINOIS, 343 U.S.
250, 266 (1952) (LIBEL). 

/6/  MANY OF THE CASES INVOLVED PROSECUTIONS FOR SALE OR
DISTRIBUTION OF OBSCENE MATERIALS OR POSSESSION WITH INTENT TO SELL OR
DISTRIBUTE.  SEE REDRUP V. NEW YORK, 386 U.S. 767 (1967); MISHKIN V.
NEW YORK, 383 U.S. 502 (1966); GINZBURG V. UNITED STATES, 383 U.S. 463
(1966); JACOBELLIS V. OHIO, 378 U.S. 184 (1964); SMITH V. CALIFORNIA,
361 U.S. 147 (1959).  OUR MOST RECENT DECISION INVOLVED A PROSECUTION
FOR SALE OF OBSCENE MATERIAL TO CHILDREN.  GINSBERG V. NEW YORK, 390
U.S. 629 (1968); CF. INTERSTATE CIRCUIT, INC. V. CITY OF DALLAS, 390
U.S. 676 (1968).  OTHER CASES INVOLVED FEDERAL OR STATE STATUTORY
PROCEDURES FOR PREVENTING THE DISTRIBUTION OR MAILING OF OBSCENE
MATERIAL, OR PROCEDURES FOR PREDISTRIBUTION APPROVAL.  SEE FREEDMAN V.
MARYLAND, 380 U.S. 51 (1965); BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S.
58 (1963); MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478 (1962).  STILL
ANOTHER CASE DEALT WITH AN ATTEMPT TO SEIZE OBSCENE MATERIAL "KEPT FOR
THE PURPOSE OF BEING SOLD, PUBLISHED, EXHIBITED . . . OR OTHERWISE
DISTRIBUTED OR CIRCULATED . . . ."  MARCUS V. SEARCH WARRANT, 367 U.S.
717, 719 (1961); SEE ALSO A QUANTITY OF BOOKS V. KANSAS, 378 U.S. 205
(1964).  MEMOIRS V. MASSACHUSETTS, 383 U.S. 413 (1966), WAS A
PROCEEDING IN EQUITY AGAINST A BOOK.  HOWEVER, POSSESSION OF A BOOK
DETERMINED TO BE OBSCENE IN SUCH A PROCEEDING WAS MADE CRIMINAL ONLY
WHEN "FOR THE PURPOSE OF SALE, LOAN OR DISTRIBUTION."  ID., AT 422. 

/7/  THE SUPREME COURT OF OHIO CONSIDERED THE ISSUE IN STATE V.
MAPP, 170 OHIO ST. 427, 166 N.E.2D 387 (1960).  FOUR OF THE SEVEN
JUDGES OF THAT COURT FELT THAT CRIMINAL PROSECUTION FOR MERE PRIVATE
POSSESSION OF OBSCENE MATERIALS WAS PROHIBITED BY THE CONSTITUTION. 
HOWEVER, OHIO LAW REQUIRED THE CONCURRENCE OF "ALL BUT ONE OF THE
JUDGES" TO DECLARE A STATE LAW UNCONSTITUTIONAL.  THE VIEW OF THE
"DISSENTING" JUDGES WAS EXPRESSED BY JUDGE HERBERT: "I CANNOT AGREE
THAT MERE PRIVATE POSSESSION OF . . . (OBSCENE) LITERATURE BY AN ADULT
SHOULD CONSTITUTE A CRIME.  THE RIGHT OF THE INDIVIDUAL TO READ, TO
BELIEVE OR DISBELIEVE, AND TO THINK WITHOUT GOVERNMENTAL SUPERVISION IS
ONE OF OUR BASIC LIBERTIES, BUT TO DICTATE TO THE MATURE ADULT WHAT
BOOKS HE MAY HAVE IN HIS OWN PRIVATE LIBRARY SEEMS TO THE WRITER TO BE
A CLEAR INFRINGEMENT OF HIS CONSTITUTIONAL RIGHTS AS AN INDIVIDUAL." 
170 OHIO ST.,AT 437, 166 N.E.2D, AT 393. 

SHORTLY THEREAFTER, THE SUPREME COURT OF OHIO INTERPRETED THE OHIO
STATUTE TO REQUIRE PROOF OF "POSSESSION AND CONTROL FOR THE PURPOSE OF
CIRCULATION OR EXHIBITION."  STATE V. JACOBELLIS, 173 OHIO ST. 22, 27
28, 179 N.E.2D 777, 781 (1962), REV'D ON OTHER GROUNDS, 378 U.S. 184
(1964).  THE INTERPRETATION WAS DESIGNED TO AVOID THE CONSTITUTIONAL
PROBLEM POSED BY THE "DISSENTERS" IN MAPP.  SEE STATE V. ROSS, 12 OHIO
ST.2D 37, 231 N.E.2D 299 (1967). 

OTHER CASES DEALING WITH NONPUBLIC DISTRIBUTION OF OBSCENE MATERIAL
OR WITH LEGITIMATE USES OF OBSCENE MATERIAL HAVE EXPRESSED SIMILAR
RELUCTANCE TO MAKE SUCH ACTIVITY CRIMINAL, ALBEIT LARGELY ON STATUTORY
GROUNDS.  IN UNITED STATES V. CHASE, 135 U.S. 255 (1890), THE COURT
HELD THAT FEDERAL LAW DID NOT MAKE CRIMINAL THE MAILING OF A PRIVATE
SEALED OBSCENE LETTER ON THE GROUND THAT THE LAW'S PURPOSE WAS TO PURGE
THE MAILS OF OBSCENE MATTER "AS FAR AS WAS CONSISTENT WITH THE RIGHTS
RESERVED TO THE PEOPLE, AND WITH A DUE REGARD TO THE SECURITY OF
PRIVATE CORRESPONDENCE . . . ."  135 U.S.,AT 261.  THE LAW WAS LATER
AMENDED TO INCLUDE LETTERS AND WAS SUSTAINED IN THAT FORM.  ANDREWS V.
UNITED STATES, 162 U.S. 420 (1896).  IN UNITED STATES V. 31
PHOTOGRAPHS, 156 F.SUPP.  350 (D.C.S.D.N.Y. 1957), THE COURT DENIED AN
ATTEMPT BY THE GOVERNMENT TO CONFISCATE CERTAIN MATERIALS SOUGHT TO BE
IMPORTED INTO THE UNITED STATES BY THE INSTITUTE FOR SEX RESEARCH,
INC., AT INDIANA UNIVERSITY.  THE COURT FOUND, APPLYING THE ROTH
FORMULATION, THAT THE MATERIALS WOULD NOT APPEAL TO THE "PRURIENT
INTEREST" OF THOSE SEEKING TO IMPORT AND UTILIZE THE MATERIALS.  THUS,
THE STATUTE PERMITTING SEIZURE OF "OBSCENE" MATERIALS WAS NOT
APPLICABLE.  THE COURT FOUND IT UNNECESSARY TO REACH THE CONSTITUTIONAL
QUESTIONS PRESENTED BY THE CLAIMANT, BUT DID NOTE ITS BELIEF THAT "THE
STATEMENT . . . (IN ROTH) CONCERNING THE REJECTION OF OBSCENITY MUST BE
INTERPRETED IN THE LIGHT OF THE WIDESPREAD DISTRIBUTION OF THE MATERIAL
IN ROTH."  156 F.SUPP.,AT 360, N. 40.  SEE ALSO REDMOND V. UNITED
STATES, 384 U.S. 264 (1966), WHERE THIS COURT GRANTED THE SOLICITOR
GENERAL'S MOTION TO VACATE AND REMAND WITH INSTRUCTIONS TO DISMISS AN
INFORMATION CHARGING A VIOLATION OF A FEDERAL OBSCENITY STATUTE IN A
CASE WHERE A HUSBAND AND WIFE MAILED UNDEVELOPED FILMS OF EACH OTHER
POSING IN THE NUDE TO AN OUT-OF-STATE FIRM FOR DEVELOPING.  BUT SEE
ACKERMAN V. UNITED STATES, 293 F.2D 449 (C.A. 9TH CIR. 1961). 

/8/  "COMMUNITIES BELIEVE, AND ACT ON THE BELIEF, THAT OBSCENITY IS
IMMORAL, IS WRONG FOR THE INDIVIDUAL, AND HAS NO PLACE IN A DECENT
SOCIETY.  THEY BELIEVE, TOO, THAT ADULTS AS WELL AS CHILDREN ARE
CORRUPTIBLE IN MORALS AND CHARACTER, AND THAT OBSCENITY IS A SOURCE OF
CORRUPTION THAT SHOULD BE ELIMINATED.  OBSCENITY IS NOT SUPPRESSED
PRIMARILY FOR THE PROTECTION OF OTHERS.  MUCH OF IT IS SUPPRESSED FOR
THE PURITY OF THE COMMUNITY AND FOR THE SALVATION AND WELFARE OF THE
'CONSUMER.'  OBSCENITY, AT BOTTOM, IS NOT CRIME.  OBSCENITY IS SIN." 
HENKIN, MORALS AND THE CONSTITUTION:  THE SIN OF OBSCENITY.  63
COL.L.REV.  391, 395 (1963). 

/9/  SEE, E.G., CAIRNS, PAUL, & WISHNER, SEX CENSORSHIP:  THE
ASSUMPTIONS OF ANTI-OBSCENITY LAWS AND THE EMPIRICAL EVIDENCE, 46
MINN.L.REV.  1009 (1962); SEE ALSO M. JAHODA, THE IMPACT OF LITERATURE:
A PSYCHOLOGICAL DISCUSSION OF SOME ASSUMPTIONS IN THE CENSORSHIP
DEBATE (1954), SUMMARIZED IN THE CONCURRING OPINION OF JUDGE FRANK IN
UNITED STATES V. ROTH, 237 F.2D 796, 814-816 (C.A. 2D CIR. 1956). 

/10/  THE MODEL PENAL CODE PROVISIONS DEALING WITH OBSCENE MATERIALS
ARE LIMITED TO CASES OF COMMERCIAL DISSEMINATION.  MODEL PENAL CODE
SEC. 251.4 (PROP.  OFFICIAL DRAFT 1962); SEE ALSO MODEL PENAL CODE SEC.
207.10 AND COMMENT 4 (TENT.  DRAFT NO. 6, 1957); H. PACKER, THE LIMITS
OF THE CRIMINAL SANCTION 316-328 (1968); SCHWARTZ, MORALS OFFENSES AND
THE MODEL PENAL CODE, 63 COL.L.REV.  669 (1963). 

/11/  WHAT WE HAVE SAID IN NO WAY INFRINGES UPON THE POWER OF THE
STATE OR FEDERAL GOVERNMENT TO MAKE POSSESSION OF OTHER ITEMS, SUCH AS
NARCOTICS, FIREARMS, OR STOLEN GOODS, A CRIME.  OUR HOLDING IN THE
PRESENT CASE TURNS UPON THE GEORGIA STATUTE'S INFRINGEMENT OF
FUNDAMENTAL LIBERTIES PROTECTED BY THE FIRST AND FOURTEENTH
AMENDMENTS.  NO FIRST AMENDMENT RIGHTS ARE INVOLVED IN MOST STATUTES
MAKING MERE POSSESSION CRIMINAL. 

NOR DO WE MEAN TO EXPRESS ANY OPINION ON STATUTES MAKING CRIMINAL
POSSESSION OF OTHER TYPES OF PRINTED, FILMED, OR RECORDED MATERIALS. 
SEE, E.G., 18 U.S.C. 793(D), WHICH MAKES CRIMINAL THE OTHERWISE LAWFUL
POSSESSION OF MATERIALS WHICH "THE POSSESSOR HAS REASON TO BELIEVE
COULD BE USED TO THE INJURY OF THE UNITED STATES OR TO THE ADVANTAGE OF
ANY FOREIGN NATION . . . ."  IN SUCH CASES, COMPELLING REASONS MAY
EXIST FOR OVERRIDING THE RIGHT OF THE INDIVIDUAL TO POSSESS THOSE
MATERIALS. 

MR. JUSTICE BLACK, CONCURRING. 

I AGREE WITH THE COURT THAT THE MERE POSSESSION OF READING MATTER OR
MOVIE FILMS, WHETHER LABELED OBSCENE OR NOT, CANNOT BE MADE A CRIME BY
A STATE WITHOUT VIOLATING THE FIRST AMENDMENT, MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH.  MY REASONS FOR THIS BELIEF HAVE BEEN SET OUT
IN MANY OF MY PRIOR OPINIONS, AS FOR EXAMPLE, SMITH V. CALIFORNIA, 361
U.S. 147, 155 (CONCURRING OPINION), AND GINZBURG V. UNITED STATES, 383
U.S. 463, 476 (DISSENTING OPINION). 

MR. JUSTICE STEWARD, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
WHITE JOIN, CONCURRING IN THE RESULT. 

BEFORE THE COMMENCEMENT OF THE TRIAL IN THIS CASE, THE APPELLANT
FILED A MOTION TO SUPPRESS THE FILMS AS EVIDENCE UPON THE GROUND THAT
THEY HAD BEEN SEIZED IN VIOLATION OF THE FOURTH AND FOURTEENTH
AMENDMENTS.  THE MOTION WAS DENIED, AND THE FILMS WERE ADMITTED IN
EVIDENCE AT THE TRIAL.  IN AFFIRMING THE APPELLANT'S CONVICTION, THE
GEORGIA SUPREME COURT SPECIFICALLY DETERMINED THAT THE FILMS HAD BEEN
LAWFULLY SEIZED.  THE APPELLANT CORRECTLY CONTENDS THAT THIS
DETERMINATION WAS CLEARLY WRONG UNDER ESTABLISHED PRINCIPLES OF
CONSTITUTIONAL LAW.  BUT THE COURT TODAY DISREGARDS THIS PRELIMINARY
ISSUE IN ITS HURRY TO MOVE ON TO NEWER CONSTITUTIONAL FRONTIERS.  I
CANNOT SO READILY OVERLOOK THE SERIOUS INROADS UPON FOURTH AMENDMENT
GUARANTEES COUNTENANCED IN THIS CASE BY THE GEORGIA COURTS. 

THE FOURTH AMENDMENT PROVIDES THAT "NO WARRANTS SHALL ISSUE, BUT
UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED."  THE PURPOSE OF THESE CLEAR AND PRECISE WORDS WAS TO GUARANTEE
TO THE PEOPLE OF THIS NATION THAT THEY SHOULD FOREVER BE SECURE FROM
THE GENERAL SEARCHES AND UNRESTRAINED SEIZURES THAT HAD BEEN A HATED
HALLMARK OF COLONIAL RULE UNDER THE NOTORIOUS WRITS OF ASSISTANCE OF
THE BRITISH CROWN.  SEE STANFORD V. TEXAS, 379 U.S. 476, 481.  THIS
MOST BASIC OF FOURTH AMENDMENT GUARANTEES WAS FRUSTRATED IN THE PRESENT
CASE, I THINK, IN A MANNER MADE THE MORE PERNICIOUS BY ITS VERY
SUBTLETY.  FOR WHAT HAPPENED HERE WAS THAT A SEARCH THAT BEGAN AS
PERFECTLY LAWFUL BECAME THE OCCASION FOR AN UNWARRANTED AND
UNCONSTITUTIONAL SEIZURE OF THE FILMS. 

THE STATE AND FEDERAL OFFICERS GAINED ADMISSION TO THE APPELLANT'S
HOUSE UNDER THE AUTHORITY OF A SEARCH WARRANT ISSUED BY A UNITED STATES
COMMISSIONER.  THE WARRANT DESCRIBED "THE PLACE TO BE SEARCHED" WITH
PARTICULARITY.  /1/  WITH LIKE PARTICULARITY, IT DESCRIBED THE "THINGS
TO BE SEIZED"-- EQUIPMENT, RECORDS, AND OTHER MATERIAL USED IN OR
DERIVED FROM AN ILLEGAL WAGERING BUSINESS.  /2/  AND THE WARRANT WAS
ISSUED ONLY AFTER THE COMMISSIONER HAD BEEN APPRISED OF MORE THAN
ADEQUATE PROBABLE CAUSE TO ISSUE IT.  /3/ 

THERE CAN BE NO DOUBT, THEREFORE, THAT THE AGENTS WERE LAWFULLY
PRESENT IN THE APPELLANT'S HOUSE, LAWFULLY AUTHORIZED TO SEARCH FOR ANY
AND ALL OF THE ITEMS SPECIFIED IN THE WARRANT, AND LAWFULLY EMPOWERED
TO SEIZE ANY SUCH ITEMS THEY MIGHT FIND.  /4/  IT FOLLOWS, THEREFORE,
THAT THE AGENTS WERE ACTING WITHIN THE AUTHORITY OF THE WARRANT WHEN
THEY PROCEEDED TO THE APPELLANT'S UPSTAIRS BEDROOM AND PULLED OPEN THE
DRAWERS OF HIS DESK.  BUT WHEN THEY FOUND IN ONE OF THOSE DRAWERS NOT
GAMBLING MATERIAL BUT MOVING PICTURE FILMS, THE WARRANT GAVE THEM NO
AUTHORITY TO SEIZE THE FILMS. 

THE CONTROLLING CONSTITUTIONAL PRINCIPLE WAS STATED IN TWO SENTENCES
BY THIS COURT MORE THAN 40 YEARS AGO: 

     "THE REQUIREMENT THAT WARRANTS SHALL PARTICULARLY DESCRIBE THE

  THINGS TO BE SEIZED MAKES GENERAL SEARCHES UNDER THEM IMPOSSIBLE

AND PREVENTS THE SEIZURE OF ONE THING UNDER A WARRANT DESCRIBING

  ANOTHER.  AS TO WHAT IS TO BE TAKEN, NOTHING IS LEFT TO THE

  DISCRETION OF THE OFFICER EXECUTING THE WARRANT."  MARRON V.

  UNITED STATES, 275 U.S. 192, 196. 

THIS IS NOT A CASE WHERE AGENTS IN THE COURSE OF A LAWFUL SEARCH
CAME UPON CONTRABAND, CRIMINAL ACTIVITY, OR CRIMINAL EVIDENCE /5/ IN
PLAIN VIEW.  FOR THE RECORD MAKES CLEAR THAT THE CONTENTS OF THE FILMS
COULD NOT BE DETERMINED BY MERE INSPECTION.  AND THIS IS NOT A CASE
THAT PRESENTS ANY QUESTIONS AS TO THE PERMISSIBLE SCOPE OF A SEARCH
MADE INCIDENT TO A LAWFUL ARREST.  FOR THE APPELLANT HAD NOT BEEN
ARRESTED WHEN THE AGENTS FOUND THE FILMS.  AFTER FINDING THEM, THE
AGENTS SPENT SOME 50 MINUTES EXHIBITING THEM BY MEANS OF THE
APPELLANT'S PROJECTOR IN ANOTHER UPSTAIRS ROOM.  ONLY THEN DID THE
AGENTS RETURN DOWNSTAIRS AND ARREST THE APPELLANT.     EVEN IN THE MUCH
CRITICIZED CASE OF UNITED STATES V. RABINOWITZ, 339 U.S. 56, THE COURT
EMPHASIZED THAT "EXPLORATORY SEARCHES . . . CANNOT BE UNDERTAKEN BY
OFFICERS WITH OR WITHOUT A WARRANT."  ID., AT 62.  THIS RECORD PRESENTS
A BALD VIOLATION OF THAT BASIC CONSTITUTIONAL RULE.  TO CONDONE WHAT
HAPPENED HERE IS TO INVITE A GOVERNMENT OFFICIAL TO USE A SEEMINGLY
PRECISE AND LEGAL WARRANT ONLY AS A TICKET TO GET INTO A MAN'S HOME,
AND, ONCE INSIDE, TO LAUNCH FORTH UPON CONFINED SEARCHES AND
INDISCRIMINATE SEIZURES AS IF ARMED WITH ALL THE UNBRIDLED AND ILLEGAL
POWER OF A GENERAL WARRANT. 

BECAUSE THE FILMS WERE SEIZED IN VIOLATION OF THE FOURTH AND
FOURTEENTH AMENDMENTS, THEY WERE INADMISSIBLE IN EVIDENCE AT THE
APPELLANT'S TRIAL.  MAPP V. OHIO, 367 U.S. 643.  ACCORDINGLY, THE
JUDGMENT OF CONVICTION MUST BE REVERSED. 

/1/  "(THE PREMISES KNOWN AS 280 SPRINGSIDE DRIVE, S.E., TWO STORY
RESIDENCE WITH AN ANNEX ON THE MAIN FLOOR CONSTRUCTED OF BRICK AND
FRAME, IN ATLANTA, FULTON COUNTY, GEORGIA, IN THE NORTHERN DISTRICT OF
GEORGIA . . . ." 

/2/  "(BOOKMAKING RECORDS, WAGERING PARAPHERNALIA CONSISTING OF BET
SLIPS, ACCOUNT SHEETS, RECAP SHEETS, COLLECTION SHEETS, ADDING
MACHINES, MONEY USED IN OR DERIVED FROM THE WAGERING BUSINESS, RECORDS
OF PURCHASES, RECORDS OF REAL ESTATE AND BANK TRANSACTIONS, THE MONEY
FOR WHICH WAS DERIVED FROM THE WAGERING BUSINESS, AND ANY OTHER
PROPERTY USED IN THE WAGERING BUSINESS, WHICH ARE BEING USED AND/OR
HAVE BEEN USED IN THE OPERATION OF A BOOKMAKING BUSINESS OR REPRESENT
THE FRUITS OF A BOOKMAKING BUSINESS BEING OPERATED IN VIOLATION OF

/3/  BEFORE THE COMMISSIONER WERE NO LESS THAN FOUR LENGTHY AND
DETAILED AFFIDAVITS, SETTING OUT THE GROUNDS FOR THE AFFIANTS'
REASONABLE BELIEF THAT THE APPELLANT WAS ENGAGED IN AN ILLEGAL GAMBLING
ENTERPRISE, AND THAT THE PARAPHERNALIA OF HIS TRADE WERE CONCEALED IN
HIS HOUSE. 

/4/  THE FACT THAT ALMOST NO GAMBLING MATERIAL WAS ACTUALLY FOUND
HAS NO BEARING, OF COURSE, UPON THE VALIDITY OF THE SEARCH.  THE
CONSTITUTIONALITY OF A SEARCH DEPENDS IN NO MEASURE UPON WHAT IT BRINGS
TO LIGHT.  BYARS V. UNITED STATES, 273 U.S. 28, 29. 

/5/  SEE WARDEN V. HAYDEN, 387 U.S. 294. 

WESLEY R. ASINOF ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLANT. 

J. ROBERT SPARKS ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WAS LEWIS R. SLATON. 
..END :






SOSZKA V. MANGANARO, 394 U.S. 573 


       SOSZKA V. MANGANARO ET AL.

        APPEAL FROM THE SUPREME COURT OF HAWAII. 

        NO. 857.  DECIDED APRIL 7, 1969. 


50 HAW.  484, 443 P.2D 155, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MORRIS P. SKINNER FOR APPELLANT. 

STUART M. COWAN FOR APPELLEES. 
..END :










STEPHAN V. STATE TAX COMMISSIONER OF DELAWARE, 394 U.S. 573 


       STEPHAN ET UX. V. STATE TAX COMMISSIONER OF DELAWARE. 

        APPEAL FROM THE SUPREME COURT OF DELAWARE. 

        NO. 844.  DECIDED APRIL 7, 1969. 


-- DEL.-- , 245 A.2D 552, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

EDWARD J. WILSON, DEPUTY ATTORNEY GENERAL OF DELAWARE, FOR
APPELLEE. 
..END :











DAVIS V. UNITED STATES, 394 U.S. 574 


       DAVIS V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 1146, MISC.  DECIDED APRIL 7, 1969. 


CERTIORARI GRANTED; 393 F.2D 100, VACATED AND REMANDED. 

PER CURIAM. 

IN ACCORDANCE WITH THE VIEWS EXPRESSED BY THE SOLICITOR GENERAL AND
UPON AN EXAMINATION OF THE PAPERS IN THIS CASE, THE MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT OF CERTIORARI ARE
GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
FOR A FURTHER HEARING ON SUCH EVIDENCE AS THE PETITIONER MAY PRESENT ON
THE QUESTION OF HIS RIGHT TO APPEAL. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, AND
BEATRICE ROSENBERG FOR THE UNITED STATES. 
..END :





ANDERSON V. SOUTH CAROLINA, 394 U.S. 574 


       ANDERSON V. SOUTH CAROLINA. 

        APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

        NO. 984, MISC.  DECIDED APRIL 7, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI DENIED.  THE REQUEST FOR OTHER RELIEF IS
DENIED. 

ROBERT L. CHIPLEY, JR., FOR APPELLANT. 
..END :











ROLLERSON V. UNITED STATES, 394 U.S. 575 


       ROLLERSON V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

   NO. 1425, MISC.  DECIDED APRIL 7, 1969. 


CERTIORARI GRANTED; -- U.S. APP. D.C.-- , 405 F.2D 1078, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED, AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA FOR FURTHER CONSIDERATION IN LIGHT OF KAUFMAN V. UNITED
STATES, ANTE, P. 217. 

MR. JUSTICE FORTAS CONCURS IN THE DISPOSITION OF THIS CASE BUT NOTES
THAT THE COURT'S ACTION DOES NOT IMPLY ANY VIEW AS TO THE MERITS OF ANY
OF THE PETITIONER'S CLAIMS INCLUDING HIS ASSERTIONS AS TO DOUBLE
JEOPARDY. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART
DISSENT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND ROGER A. PAULEY FOR THE UNITED STATES. 
..END :




















MCCARTHY V. UNITED STATES, 394 U.S. 459 


       MCCARTHY V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT. 

        NO. 43.  ARGUED DECEMBER 9, 1968.-- DECIDED APRIL 2, 1969. 


PETITIONER WAS INDICTED ON THREE COUNTS FOR "WILFULLY AND KNOWINGLY"
ATTEMPTING TO EVADE FEDERAL TAX PAYMENTS AND ON ARRAIGNMENT PLEADED NOT
GUILTY TO EACH COUNT.  ON THE DAY SET FOR TRIAL PETITIONER'S COUNSEL,
AFTER INFORMING THE COURT THAT HE HAD "ADVISED . . . (PETITIONER) OF
THE CONSEQUENCES OF A PLEA," MOVED TO ENTER A PLEA OF GUILTY TO ONE
COUNT.  IN ANSWER TO THE DISTRICT JUDGE'S INQUIRY, PETITIONER STATED
THAT HE DESIRED TO PLEAD GUILTY AND UNDERSTOOD THAT SUCH A PLEA WAIVED
HIS RIGHT TO A JURY TRIAL AND SUBJECTED HIM TO AS LONG AS FIVE YEARS'
IMPRISONMENT AND AS MUCH AS A $10,000 FINE.  THE GOVERNMENT CONSENTED
TO THE PLEA CHANGE AND AGREED TO DISMISS THE OTHER TWO COUNTS IF
PETITIONER'S GUILTY PLEA TO THE ONE COUNT WAS ACCEPTED.  REPLYING TO
THE JUDGE'S INQUIRY MADE AT THE GOVERNMENT'S REQUEST AND BEFORE THE
PLEA WAS ACCEPTED PETITIONER STATED THAT HIS PLEA WAS NOT THE PRODUCT
OF THREATS OR PROMISES BUT WAS ENTERED OF HIS "OWN VOLITION."  AT THE
SUBSEQUENT SENTENCING HEARING PETITIONER ASSERTED THAT HIS FAILURE TO
PAY TAXES WAS "NOT DELIBERATE" AND THAT THEY WOULD HAVE BEEN PAID HAD
HE NOT BEEN IN POOR HEALTH.  THE JUDGE IMPOSED A SENTENCE OF ONE YEAR
AND A $2,500 FINE.  PETITIONER'S COUNSEL MOVED TO SUSPEND SENTENCE,
STRESSING THAT PETITIONER, THEN 65, WAS IN POOR HEALTH AND THAT HIS
"NEGLECTFUL" AND "INADVERTENT" BOOKKEEPING PRACTICES OCCURRED DURING A
PERIOD WHEN HE HAD BEEN SUFFERING FROM A VERY SERIOUS DRINKING
PROBLEM.  THE JUDGE, DECLINING TO SUSPEND SENTENCE, INDICATED THAT HE
HAD EXAMINED THE PRESENTENCE REPORT AND CONCLUDED THAT PETITIONER'S
BOOKKEEPING METHODS WERE NOT "INADVERTENT."  ON APPEAL PETITIONER URGED
THE SETTING ASIDE OF HIS PLEA AS VIOLATIVE OF FED. RULE CRIM. PROC. 11
ON THE GROUNDS (1) THAT THE DISTRICT COURT HAD ACCEPTED HIS PLEA
"WITHOUT FIRST ADDRESSING (HIM) . . . PERSONALLY AND DETERMINING THAT
THE PLEA (WAS) . . . MADE VOLUNTARILY WITH UNDERSTANDING OF THE NATURE
OF THE CHARGE . . . ," AND (2) THAT THE COURT HAD ENTERED JUDGMENT
WITHOUT DETERMINING "THAT THERE (WAS) . . . A FACTUAL BASIS FOR THE
PLEA."  THE COURT OF APPEALS AFFIRMED, IMPLYING THAT THE RULE DID NOT
REQUIRE THE DISTRICT JUDGE TO ADDRESS PETITIONER PERSONALLY IF
PETITIONER UNDERSTOOD THE NATURE OF THE CHARGE AND CONCLUDING THAT AT
THE SENTENCING HEARING THE JUDGE HAD SATISFIED HIMSELF FROM THE
PRESENTENCE REPORT THAT THE PLEA HAD A FACTUAL BASIS.  HELD: 

1.  FED. RULE CRIM. PROC 11 WAS NOT COMPLIED WITH IN THIS CASE.  THE
RULE, WHICH IS DESIGNED (1) TO ASSIST THE DISTRICT JUDGE IN MAKING THE
CONSTITUTIONALLY REQUIRED DETERMINATION THAT A GUILTY PLEA IS TRULY
VOLUNTARY AND (2) TO PRODUCE A COMPLETE RECORD WHEN THE PLEA IS ENTERED
OF THE FACTORS RELEVANT TO THE VOLUNTARINESS DETERMINATION, MANDATES
THE DISTRICT JUDGE'S DIRECT INQUIRY OF A DEFENDANT PLEADING GUILTY AS
TO WHETHER THE DEFENDANT UNDERSTANDS THE NATURE OF THE CHARGE AGAINST
HIM AND IS AWARE OF THE CONSEQUENCES OF HIS PLEA.  PP. 464-467. 

2.  NONCOMPLIANCE BY THE DISTRICT COURT WITH RULE 11 REQUIRES THAT
THE DEFENDANT'S GUILTY PLEA BE SET ASIDE AND HIS CASE REMANDED FOR
ANOTHER HEARING AT WHICH HE MAY PLEAD ANEW.  PP. 468-472. 

387 F.2D 838, REVERSED AND REMANDED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE PROCEDURE THAT MUST BE FOLLOWED UNDER RULE 11
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE BEFORE A UNITED STATES
DISTRICT COURT MAY ACCEPT A GUILTY PLEA AND THE REMEDY FOR A FAILURE TO
FOLLOW THAT PROCEDURE. 

ON APRIL 1, 1966, PETITIONER WAS INDICTED ON THREE COUNTS IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR
VIOLATING SEC. 7201 OF THE INTERNAL REVENUE CODE.  HE WAS CHARGED WITH
"WILFULLY AND KNOWINGLY" ATTEMPTING TO EVADE TAX PAYMENTS OF $928.74
FOR 1959 (COUNT 1), $5,143.70 FOR 1960 (COUNT 2), AND $1,207.12 FOR
1961 (COUNT 3).  AT HIS ARRAIGNMENT TWO WEEKS LATER, PETITIONER, WHO
WAS REPRESENTED BY RETAINED COUNSEL, PLEADED NOT GUILTY TO EACH COUNT. 
THE COURT SCHEDULED HIS TRIAL FOR JUNE 30; BUT ON JUNE 29, IT GRANTED
THE GOVERNMENT'S MOTION TO POSTPONE THE TRIAL BECAUSE OF PETITIONER'S
ILLNESS.  THE TRIAL WAS RESCHEDULED FOR JULY 15. 

ON THAT DAY, AFTER INFORMING THE COURT THAT HE HAD "ADVISED . . .
(PETITIONER) OF THE CONSEQUENCES OF A PLEA," DEFENSE COUNSEL MOVED TO
WITHDRAW PETITIONER'S PLEA OF NOT GUILTY TO COUNT 2 AND TO ENTER A PLEA
OF GUILTY TO THAT COUNT.  THE DISTRICT JUDGE ASKED PETITIONER IF HE
DESIRED TO PLEAD GUILTY AND IF HE UNDERSTOOD THAT SUCH A PLEA WAIVED
HIS RIGHT TO A JURY TRIAL AND SUBJECTED HIM TO IMPRISONMENT FOR AS LONG
AS FIVE YEARS AND TO A FINE AS HIGH AS $10,000.  PETITIONER STATED THAT
HE UNDERSTOOD THESE CONSEQUENCES AND WANTED TO PLEAD GUILTY.  THE
GOVERNMENT CONSENTED TO THIS PLEA CHANGE AND INFORMED THE COURT THAT IF
PETITIONER'S PLEA OF GUILTY TO COUNT 2 WERE ACCEPTED, THE GOVERNMENT
WOULD MOVE TO DISMISS COUNTS 1 AND 3.  BEFORE THE PLEA WAS ACCEPTED,
HOWEVER, THE PROSECUTOR ASKED THE JUDGE TO INQUIRE WHETHER IT HAD BEEN
INDUCED BY ANY THREATS OR PROMISES.  IN RESPONSE TO THE JUDGE'S
INQUIRY, PETITIONER REPLIED THAT HIS PLEA WAS NOT THE PRODUCT OF
EITHER.  HE STATED THAT IT WAS ENTERED OF HIS "OWN VOLITION."  THE
COURT ORDERED A PRESENTENCE INVESTIGATION AND CONTINUED THE CASE TO
SEPTEMBER 14, 1966.  /1/ 

AT THE COMMENCEMENT OF THE SENTENCING HEARING ON SEPTEMBER 14,
PETITIONER ASSERTED THAT HIS FAILURE TO PAY TAXES WAS "NOT DELIBERATE"
AND THAT THEY WOULD HAVE BEEN PAID IF HE HAD NOT BEEN IN POOR HEALTH. 
THE PROSECUTOR STATED THAT THE "PRIME CONSIDERATION" FOR THE
GOVERNMENT'S AGREEMENT TO MOVE TO DISMISS COUNTS 1 AND 3 WAS
PETITIONER'S PROMISE TO PAY ALL TAXES, PENALTIES, AND INTEREST.  THE
PROSECUTOR THEN REQUESTED THE COURT TO REFER EXPRESSLY TO THIS
AGREEMENT.  AFTER NOTING THAT PETITIONER POSSESSED SUFFICIENT
ATTACHABLE ASSETS TO MEET THESE OBLIGATIONS, THE COURT IMPOSED A
SENTENCE OF ONE YEAR AND A FINE OF $2,500.  PETITIONER'S COUNSEL
IMMEDIATELY MOVED TO SUSPEND THE SENTENCE.  HE EMPHASIZED THAT
PETITIONER, WHO WAS THEN 65 YEARS OF AGE, WAS IN POOR HEALTH AND
CONTENDED THAT HIS FAILURE TO PAY HIS TAXES HAD RESULTED FROM HIS
"NEGLECTFUL" AND "INADVERTENT" METHOD OF BOOKKEEPING DURING A PERIOD
WHEN HE HAD BEEN SUFFERING FROM A VERY SERIOUS DRINKING PROBLEM. 
CONSEQUENTLY, ASSERTED PETITIONER'S COUNSEL, "THERE WAS NEVER ANY
DISPOSITION TO DEPRIVE THE UNITED STATES OF ITS DUE."  THE JUDGE,
HOWEVER, AFTER INDICATING HE HAD EXAMINED THE PRESENTENCE REPORT,
STATED HIS OPINION THAT "THE MANNER IN WHICH (PETITIONER'S) BOOKS WERE
KEPT WAS NOT INADVERTENT."  HE DECLINED, THEREFORE, TO SUSPEND
PETITIONER'S SENTENCE.  /2/ 

ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT, PETITIONER ARGUED THAT HIS PLEA SHOULD BE SET ASIDE BECAUSE IT
HAD BEEN ACCEPTED IN VIOLATION OF RULE 11 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE.  SPECIFICALLY, PETITIONER CONTENDED (1) THAT THE
DISTRICT COURT HAD ACCEPTED HIS PLEA "WITHOUT FIRST ADDRESSING (HIM) .
. . PERSONALLY AND DETERMINING THAT THE PLEA (WAS) . . . MADE
VOLUNTARILY WITH UNDERSTANDING OF THE NATURE OF THE CHARGE . . . ,"
/3/  AND (2) THAT THE COURT HAD ENTERED JUDGMENT WITHOUT DETERMINING
"THAT THERE (WAS) . . . A FACTUAL BASIS FOR THE PLEA."  /4/  IN
AFFIRMING PETITIONER'S CONVICTION, /5/  THE COURT OF APPEALS HELD THAT
THE DISTRICT JUDGE HAD COMPLIED WITH RULE 11.  THE COURT IMPLIED THAT
THE RULE DID NOT REQUIRE THE DISTRICT JUDGE TO ADDRESS PETITIONER
PERSONALLY TO DETERMINE IF HE UNDERSTOOD THE NATURE OF THE CHARGE.  THE
COURT ALSO CONCLUDED THAT THE COLLOQUY AT THE SENTENCING HEARING
DEMONSTRATED THAT THE JUDGE HAD SATISFIED HIMSELF BY AN EXAMINATION OF
THE PRESENTENCE REPORT THAT THE PLEA HAD A FACTUAL BASIS.  /6/ 

BECAUSE OF THE IMPORTANCE OF THE PROPER CONSTRUCTION OF RULE 11 TO
THE ADMINISTRATION OF CRIMINAL LAW IN THE FEDERAL COURTS, /7/  AND
BECAUSE OF A CONFLICT IN THE COURTS OF APPEALS OVER THE EFFECT OF A
DISTRICT COURT'S FAILURE TO FOLLOW THE PROVISIONS OF THE RULE, /8/  WE
GRANTED CERTIORARI.  390 U.S. 1038 (1968).  WE AGREE WITH PETITIONER
THAT THE DISTRICT JUDGE DID NOT COMPLY WITH RULE 11 IN THIS CASE; AND
IN REVERSING THE COURT OF APPEALS, WE HOLD THAT A DEFENDANT IS ENTITLED
TO PLEAD ANEW IF A UNITED STATES DISTRICT COURT ACCEPTS HIS GUILTY PLEA
WITHOUT FULLY ADHERING TO THE PROCEDURE PROVIDED FOR IN RULE 11.  THIS
DECISION IS BASED SOLELY UPON OUR CONSTRUCTION OF RULE 11 AND IS MADE
PURSUANT TO OUR SUPERVISORY POWER OVER THE LOWER FEDERAL COURTS; WE DO
NOT REACH ANY OF THE CONSTITUTIONAL ARGUMENTS PETITIONER URGES AS
ADDITIONAL GROUNDS FOR REVERSAL. 

        I. 

RULE 11 EXPRESSLY DIRECTS THE DISTRICT JUDGE TO INQUIRE WHETHER A
DEFENDANT WHO PLEADS GUILTY UNDERSTANDS THE NATURE OF THE CHARGE
AGAINST HIM AND WHETHER HE IS AWARE OF THE CONSEQUENCES OF HIS PLEA. 
AT ORAL ARGUMENT, HOWEVER, COUNSEL FOR THE GOVERNMENT REPEATEDLY
CONCEDED THAT THE JUDGE DID NOT PERSONALLY INQUIRE WHETHER PETITIONER
UNDERSTOOD THE NATURE OF THE CHARGE.  AT ONE POINT, COUNSEL STATED
QUITE EXPLICITLY: "THE SUBJECT ON WHICH HE (THE DISTRICT JUDGE) DID NOT
DIRECTLY ADDRESS THE DEFENDANT, WHICH IS RAISED HERE, IS THE QUESTION
OF THE DEFENDANT'S UNDERSTANDING OF THE CHARGES."  NEVERTHELESS, THE
GOVERNMENT ARGUES THAT SINCE PETITIONER STATED HIS DESIRE TO PLEAD
GUILTY, AND SINCE HE WAS INFORMED OF THE CONSEQUENCES OF HIS PLEA, THE
DISTRICT COURT "COULD PROPERLY ASSUME THAT PETITIONER WAS ENTERING THAT
PLEA WITH A COMPLETE UNDERSTANDING OF THE CHARGE AGAINST HIM."  /9/ 

WE CANNOT ACCEPT THIS ARGUMENT, WHICH COMPLETELY IGNORES THE TWO
PURPOSES OF RULE 11 AND THE REASONS FOR ITS RECENT AMENDMENT.  FIRST,
ALTHOUGH THE PROCEDURE EMBODIED IN RULE 11 HAS NOT BEEN HELD TO BE
CONSTITUTIONALLY MANDATED, /10/  IT IS DESIGNED TO ASSIST THE DISTRICT
JUDGE IN MAKING THE CONSTITUTIONALLY REQUIRED DETERMINATION THAT A
DEFENDANT'S GUILTY PLEA IS TRULY VOLUNTARY.  /11/  SECOND, THE RULE IS
INTENDED TO PRODUCE A COMPLETE RECORD AT THE TIME THE PLEA IS ENTERED
OF THE FACTORS RELEVANT TO THIS VOLUNTARINESS DETERMINATION.  THUS, THE
MORE METICULOUSLY THE RULE IS ADHERED TO, THE MORE IT TENDS TO
DISCOURAGE, OR AT LEAST TO ENABLE MORE EXPEDITIOUS DISPOSITION OF, THE
NUMEROUS AND OFTEN FRIVOLOUS POST-CONVICTION ATTACKS ON THE
CONSTITUTIONAL VALIDITY OF GUILTY PLEAS.  /12/ 

PRIOR TO THE 1966 AMENDMENT, HOWEVER, NOT ALL DISTRICT JUDGES
PERSONALLY INTERROGATED DEFENDANTS BEFORE ACCEPTING THEIR GUILTY
PLEAS.  /13/  WITH AN AWARENESS OF THE CONFUSION OVER THE RULE'S
REQUIREMENTS IN THIS RESPECT, THE DRAFTSMEN AMENDED IT TO ADD A
PROVISION "EXPRESSLY REQUIRING) THE COURT TO ADDRESS THE DEFENDANT
PERSONALLY."  /14/  THIS CLARIFICATION OF THE JUDGE'S RESPONSIBILITIES
QUITE OBVIOUSLY FURTHERS BOTH OF THE RULE'S PURPOSES.  BY PERSONALLY
INTERROGATING THE DEFENDANT, NOT ONLY WILL THE JUDGE BE BETTER ABLE TO
ASCERTAIN THE PLEA'S VOLUNTARINESS, BUT HE ALSO WILL DEVELOP A MORE
COMPLETE RECORD TO SUPPORT HIS DETERMINATION IN A SUBSEQUENT POST
CONVICTION ATTACK. 

THESE TWO PURPOSES HAVE THEIR GENESIS IN THE NATURE OF A GUILTY
PLEA.  A DEFENDANT WHO ENTERS SUCH A PLEA SIMULTANEOUSLY WAIVES SEVERAL
CONSTITUTIONAL RIGHTS, INCLUDING HIS PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION, HIS RIGHT TO TRIAL BY JURY, AND HIS RIGHT TO CONFRONT
HIS ACCUSERS.  /15/  FOR THIS WAIVER TO BE VALID UNDER THE DUE PROCESS
CLAUSE, IT MUST BE "AN INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A
KNOWN RIGHT OR PRIVILEGE."  JOHNSON V. ZERBST, 304 U.S. 458, 464
(1938).  CONSEQUENTLY, IF A DEFENDANT'S GUILTY PLEA IS NOT EQUALLY
VOLUNTARY AND KNOWING, IT HAS BEEN OBTAINED IN VIOLATION OF DUE PROCESS
AND IS THEREFORE VOID.  /16/  MOREOVER, BECAUSE A GUILTY PLEA IS AN
ADMISSION OF ALL THE ELEMENTS OF A FORMAL CRIMINAL CHARGE, IT CANNOT BE
TRULY VOLUNTARY UNLESS THE DEFENDANT POSSESSES AN UNDERSTANDING OF THE
LAW IN RELATION TO THE FACTS.  /17/ 

THUS, IN ADDITION TO DIRECTING THE JUDGE TO INQUIRE INTO THE
DEFENDANT'S UNDERSTANDING OF THE NATURE OF THE CHARGE AND THE
CONSEQUENCES OF HIS PLEA, RULE 11 ALSO REQUIRES THE JUDGE TO SATISFY
HIMSELF THAT THERE IS A FACTUAL BASIS FOR THE PLEA.  THE JUDGE MUST
DETERMINE "THAT THE CONDUCT WHICH THE DEFENDANT ADMITS CONSTITUTES THE
OFFENSE CHARGED IN THE INDICTMENT OR INFORMATION OR AN OFFENSE INCLUDED
THEREIN TO WHICH THE DEFENDANT HAS PLEADED GUILTY."  /18/  REQUIRING
THIS EXAMINATION OF THE RELATION BETWEEN THE LAW AND THE ACTS THE
DEFENDANT ADMITS HAVING COMMITTED IS DESIGNED TO "PROTECT A DEFENDANT
WHO IS IN THE POSITION OF PLEADING VOLUNTARILY WITH AN UNDERSTANDING OF
THE NATURE OF THE CHARGE BUT WITHOUT REALIZING THAT HIS CONDUCT DOES
NOT ACTUALLY FALL WITHIN THE CHARGE."  /19/ 

TO THE EXTENT THAT THE DISTRICT JUDGE THUS EXPOSES THE DEFENDANT'S
STATE OF MIND ON THE RECORD THROUGH PERSONAL INTERROGATION, HE NOT ONLY
FACILITATES HIS OWN DETERMINATION OF A GUILTY PLEA'S VOLUNTARINESS, BUT
HE ALSO FACILITATES THAT DETERMINATION IN ANY SUBSEQUENT POST
CONVICTION PROCEEDING BASED UPON A CLAIM THAT THE PLEA WAS
INVOLUNTARY.  BOTH OF THESE GOALS ARE UNDERMINED IN PROPORTION TO THE
DEGREE THE DISTRICT JUDGE RESORTS TO "ASSUMPTIONS" NOT BASED UPON
RECORDED RESPONSES TO HIS INQUIRIES.  FOR THIS REASON, WE REJECT THE
GOVERNMENT'S CONTENTION THAT RULE 11 CAN BE COMPLIED WITH ALTHOUGH THE
DISTRICT JUDGE DOES NOT PERSONALLY INQUIRE WHETHER THE DEFENDANT
UNDERSTOOD THE NATURE OF THE CHARGE.  /20/

        II. 

HAVING DECIDED THAT THE RULE HAS NOT BEEN COMPLIED WITH, WE MUST
ALSO DETERMINE THE EFFECT OF THAT NON-COMPLIANCE, AN ISSUE THAT HAS
ENGENDERED A SHARP DIFFERENCE OF OPINION AMONG THE COURTS OF APPEALS. 
IN HEIDEN V. UNITED STATES, 353 F.2D 53 (1965), THE COURT OF APPEALS
FOR THE NINTH CIRCUIT HELD THAT WHEN THE DISTRICT COURT DOES NOT COMPLY
FULLY WITH RULE 11 THE DEFENDANT'S GUILTY PLEA MUST BE SET ASIDE AND
HIS CASE REMANDED FOR ANOTHER HEARING AT WHICH HE MAY PLEAD ANEW.  /21/
OTHER COURTS OF APPEALS, HOWEVER, HAVE CONSISTENTLY REJECTED THIS
HOLDING, EITHER EXPRESSLY /22/  OR TACITLY.  /23/  INSTEAD, THEY HAVE
ADOPTED THE APPROACH URGED BY THE GOVERNMENT, WHICH IS TO PLACE UPON
THE GOVERNMENT THE BURDEN OF DEMONSTRATING FROM THE RECORD OF THE RULE
11 HEARING THAT THE GUILTY PLEA WAS VOLUNTARILY ENTERED WITH AN
UNDERSTANDING OF THE CHARGE.  SEE, E.G., HALLIDAY V. UNITED STATES, 380
F.2D 270 (C.A. 1ST CIR. 1967); LANE V. UNITED STATES, 373 F.2D 570
(C.A. 5TH CIR. 1967).  /24/  IN THESE CIRCUITS, IF VOLUNTARINESS CANNOT
BE DETERMINED FROM THE RECORD, THE CASE IS REMANDED FOR AN EVIDENTIARY
HEARING ON THAT ISSUE.  SEE, E.G., KENNEDY V. UNITED STATES, 397 F.2D
16 (C.A. 6TH CIR. 1968); HALLIDAY V. UNITED STATES, SUPRA. 

WE ARE PERSUADED THAT THE COURT OF APPEALS FOR THE NINTH CIRCUIT HAS
ADOPTED THE BETTER RULE.  FROM THE DEFENDANT'S PERSPECTIVE, THE
EFFICACY OF SHIFTING THE BURDEN OF PROOF TO THE GOVERNMENT AT A LATER
VOLUNTARINESS HEARING IS QUESTIONABLE.  IN MEETING ITS BURDEN, THE
GOVERNMENT WILL UNDOUBTEDLY RELY UPON THE DEFENDANT'S STATEMENT THAT HE
DESIRED TO PLEAD GUILTY AND FREQUENTLY A STATEMENT THAT THE PLEA WAS
NOT INDUCED BY ANY THREATS OR PROMISES.  THIS PRIMA FACIE CASE FOR
VOLUNTARINESS IS LIKELY TO BE TREATED AS IRREBUTTABLE IN CASES SUCH AS
THIS ONE, WHERE THE DEFENDANT'S REPLY IS LIMITED TO HIS OWN PLAINTIVE
ALLEGATIONS THAT HE DID NOT UNDERSTAND THE NATURE OF THE CHARGE AND
THEREFORE FAILED TO ASSERT A VALID DEFENSE OR TO LIMIT HIS GUILTY PLEA
ONLY TO A LESSER INCLUDED OFFENSE.  NO MATTER HOW TRUE THESE
ALLEGATIONS MAY BE, RARELY, IF EVER, CAN A DEFENDANT CORROBORATE THEM
IN A POST-PLEA VOLUNTARINESS HEARING. 

RULE 11 IS DESIGNED TO ELIMINATE ANY NEED TO RESORT TO A LATER FACT
FINDING PROCEEDING "IN THIS HIGHLY SUBJECTIVE AREA."  HEIDEN V. UNITED
STATES, SUPRA, AT 55.  THE RULE "CONTEMPLATES THAT DISPUTES AS THE
UNDERSTANDING OF THE DEFENDANT AND THE VOLUNTARINESS OF HIS ACTION ARE
TO BE ELIMINATED AT THE OUTSET . . . ."  IBID.  AS THE COURT OF APPEALS
FOR THE SIXTH CIRCUIT EXPLAINED IN DISCUSSING WHAT IT TERMED THE
"PERSUASIVE RATIONALE" OF HEIDEN:  "WHEN THE ASCERTAINMENT IS
SUBSEQUENTLY MADE, GREATER UNCERTAINTY IS BOUND TO EXIST SINCE IN THE
RESOLUTION OF THE DISPUTED CONTENTIONS PROBLEMS OF CREDIBILITY AND OF
RELIABILITY OF MEMORY CANNOT BE AVOIDED . . . ."  WADDY V. HEER, 383
F.2D 789, 794 (1967).  THERE IS NO ADEQUATE SUBSTITUTE FOR
DEMONSTRATING IN THE RECORD AT THE TIME THE PLEA IS ENTERED THE
DEFENDANT'S UNDERSTANDING OF THE NATURE OF THE CHARGE AGAINST HIM. 
THE WISDOM OF RULE 11'S REQUIREMENTS AND THE DIFFICULTY OF ACHIEVING
ITS PURPOSES THROUGH A POST-CONVICTION VOLUNTARINESS HEARING ARE
PARTICULARLY APPARENT IN THIS CASE.  PETITIONER, WHO WAS 65 YEARS OLD
AND IN POOR HEALTH AT THE TIME HE ENTERED HIS PLEA, HAD BEEN SUFFERING
FROM A SERIOUS DRINKING PROBLEM DURING THE TIME HE ALLEGEDLY EVADED HIS
TAXES.  HE PLEADED GUILTY TO A CRIME THAT REQUIRES A "KNOWING AND
WILLFUL" ATTEMPT TO DEFRAUD THE GOVERNMENT OF ITS TAX MONEY; /25/  YET,
THROUGHOUT HIS SENTENCING HEARING, HE AND HIS COUNSEL INSISTED THAT HIS
ACTS WERE MERELY "NEGLECTFUL," "INADVERTENT," AND COMMITTED WITHOUT
"ANY DISPOSITION TO DEPRIVE THE UNITED STATES OF ITS DUE."  REMARKS OF
THIS NATURE CAST CONSIDERABLE DOUBT ON THE GOVERNMENT'S ASSERTION THAT
PETITIONER PLEADED GUILTY WITH FULL AWARENESS OF THE NATURE OF THE
CHARGE.  NEVERTHELESS, CONFRONTED WITH PETITIONER'S STATEMENT THAT HE
ENTERED HIS PLEA OF HIS "OWN VOLITION," HIS COUNSEL'S STATEMENT THAT HE
EXPLAINED THE NATURE OF THE CHARGES, AND EVIDENCE THAT PETITIONER DID
OWE THE GOVERNMENT BACK TAXES, BOTH THE DISTRICT COURT AND THE COURT OF
APPEALS CONCLUDED THAT PETITIONER'S GUILTY PLEA WAS VOLUNTARY. 

DESPITE PETITIONER'S INABILITY TO CONVINCE THE COURTS BELOW THAT HE
DID NOT FULLY UNDERSTAND THE CHARGE AGAINST HIM, IT IS CERTAINLY
CONCEIVABLE THAT HE MAY HAVE INTENDED TO ACKNOWLEDGE ONLY THAT HE IN
FACT OWED THE GOVERNMENT THE MONEY IT CLAIMED WITHOUT NECESSARILY
ADMITTING THAT HE COMMITTED THE CRIME CHARGED; FOR THAT CRIME REQUIRES
THE VERY TYPE OF SPECIFIC INTENT THAT HE REPEATEDLY DISAVOWED.  SEE
SANSONE V. UNITED STATES, 380 U.S. 343 (1965).  MOREOVER, SINCE THE
ELEMENTS OF THE OFFENSE WERE NOT EXPLAINED TO PETITIONER, AND SINCE THE
SPECIFIC ACTS OF TAX EVASION DO NOT APPEAR OF RECORD, IT IS ALSO
POSSIBLE THAT IF PETITIONER HAD BEEN ADEQUATELY INFORMED HE WOULD HAVE
CONCLUDED THAT HE WAS ACTUALLY GUILTY OF ONE OF TWO CLOSELY RELATED
LESSER INCLUDED OFFENSES, WHICH ARE MERE MISDEMEANORS.  /26/ 

ON THE OTHER HAND, HAD THE DISTRICT COURT SCRUPULOUSLY COMPLIED WITH
RULE 11, THERE WOULD BE NO NEED FOR SUCH SPECULATION.  AT THE TIME THE
PLEA WAS ENTERED, PETITIONER'S OWN REPLIES TO THE COURT'S INQUIRIES
MIGHT WELL HAVE ATTESTED TO HIS UNDERSTANDING OF THE ESSENTIAL ELEMENTS
OF THE CRIME CHARGED, INCLUDING THE REQUIREMENT OF SPECIFIC INTENT, AND
TO HIS KNOWLEDGE OF THE ACTS WHICH FORMED THE BASIS FOR THE CHARGE. 
OTHERWISE, IT WOULD BE APPARENT TO THE COURT THAT THE PLEA COULD NOT BE
ACCEPTED.  SIMILARLY, IT FOLLOWS THAT, IF THE RECORD HAD BEEN DEVELOPED
PROPERLY, AND IF IT DEMONSTRATED THAT PETITIONER ENTERED HIS PLEA
FREELY AND INTELLIGENTLY, HIS SUBSEQUENT REFERENCES TO NEGLECT AND
INADVERTENCE COULD HAVE BEEN SUMMARILY DISMISSED AS NOTHING MORE THAN
OVERZEALOUS SUPPLICATIONS FOR LENIENCY. 

WE THUS CONCLUDE THAT PREJUDICE INHERES IN A FAILURE TO COMPLY WITH
RULE 11 FOR NONCOMPLIANCE DEPRIVES THE DEFENDANT OF THE RULE'S
PROCEDURAL SAFEGUARDS THAT ARE DESIGNED TO FACILITATE A MORE ACCURATE
DETERMINATION OF THE VOLUNTARINESS OF HIS PLEA.  OUR HOLDING THAT A
DEFENDANT WHOSE PLEA HAS BEEN ACCEPTED IN VIOLATION OF RULE 11 SHOULD
BE AFFORDED THE OPPORTUNITY TO PLEAD ANEW NOT ONLY WILL INSURE THAT
EVERY ACCUSED IS AFFORDED THOSE PROCEDURAL SAFEGUARDS, BUT ALSO WILL
HELP REDUCE THE GREAT WASTE OF JUDICIAL RESOURCES REQUIRED TO PROCESS
THE FRIVOLOUS ATTACKS ON GUILTY PLEA CONVICTIONS THAT ARE ENCOURAGED,
AND ARE MORE DIFFICULT TO DISPOSE OF, WHEN THE ORIGINAL RECORD IS
INADEQUATE.  IT IS, THEREFORE, NOT TOO MUCH TO REQUIRE THAT, BEFORE
SENTENCING DEFENDANTS TO YEARS OF IMPRISONMENT, DISTRICT JUDGES TAKE
THE FEW MINUTES NECESSARY TO INFORM THEM OF THEIR RIGHTS AND TO
DETERMINE WHETHER THEY UNDERSTAND THE ACTION THEY ARE TAKING. 

WE THEREFORE REVERSE THE JUDGMENT OF THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT AND REMAND THE CASE FOR PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE RELEVANT PORTION OF THE COLLOQUY AT THIS HEARING IS QUOTED
IN APPENDIX A. 

/2/  DEFENSE COUNSEL'S ACCOUNT OF PETITIONER'S PERSONAL PROBLEMS
DURING THE PERIOD HE ALLEGEDLY EVADED HIS INCOME TAXES IS QUOTED IN
APPENDIX B. 

/3/  FED. RULE CRIM. PROC. 11. 

/4/  IBID.  BOTH OF THESE PROVISIONS WERE ADDED BY THE 1966
AMENDMENT TO RULE 11.  THE AMENDMENT BECAME EFFECTIVE ON JULY 1, 1966. 
IT IS ITALICIZED ON THE NEXT PAGE IN THE FOLLOWING QUOTATION OF THE
RULE: 

"A DEFENDANT MAY PLEAD NOT GUILTY, GUILTY OR, WITH THE CONSENT OF
THE COURT, NOLO CONTENDERE.  THE COURT MAY REFUSE TO ACCEPT A PLEA OF
GUILTY, AND SHALL NOT ACCEPT SUCH PLEA OF NOLO CONTENDERE WITHOUT FIRST
ADDRESSING THE DEFENDANT PERSONALLY AND DETERMINING THAT THE PLEA IS
MADE VOLUNTARILY WITH UNDERSTANDING OF THE NATURE OF THE CHARGE AND THE
CONSEQUENCES OF THE PLEA.  IF A DEFENDANT REFUSES TO PLEAD OR IF THE
COURT REFUSES TO ACCEPT A PLEA OF GUILTY OR IF A DEFENDANT CORPORATION
FAILS TO APPEAR, THE COURT SHALL ENTER A PLEA OF NOT GUILTY.  THE COURT
SHALL NOT ENTER A JUDGMENT UPON A PLEA OF GUILTY UNLESS IT IS SATISFIED
THAT THERE IS A FACTUAL BASIS FOR THE PLEA." 

/5/  387 F.2D 838 (C.A. 7TH CIR. 1968). 

/6/  THE ADVISORY COMMITTEE SUGGESTS THREE METHODS OF DETERMINING
THAT A FACTUAL BASIS EXISTS FOR A GUILTY PLEA:  (1) INQUIRING OF THE
DEFENDANT; (2) INQUIRING OF THE PROSECUTOR; (3) EXAMINING THE
PRESENTENCE REPORT.  FED. RULE CRIM. PROC. 11, NOTES OF ADVISORY
COMMITTEE ON CRIMINAL RULES. 

/7/  DURING 1968 APPROXIMATELY 86% (22,055 OUT OF 25,674) OF ALL
CONVICTIONS OBTAINED IN THE UNITED STATES DISTRICT COURTS WERE PURSUANT
TO A PLEA OF GUILTY OR ITS SUBSTANTIAL EQUIVALENT, A PLEA OF NOLO
CONTENDERE.  1968 DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED
STATES COURTS ANN. REP. 261. 

/8/  SEE NN. 22 AND 23, INFRA. 

/9/  THE GOVERNMENT AGREES WITH THE COURT OF APPEALS THAT THE RECORD
OF THE SEPTEMBER 14 SENTENCING HEARING DEMONSTRATES THAT THE DISTRICT
JUDGE SATISFIED HIMSELF BY EXAMINING THE PRESENTENCE REPORT THAT THERE
WAS A FACTUAL BASIS FOR THE PLEA.  HOWEVER, BECAUSE OF THE GOVERNMENT'S
CONCESSION AT ORAL ARGUMENT THAT THE JUDGE DID NOT INQUIRE WHETHER
PETITIONER UNDERSTOOD THE NATURE OF THE CHARGE, AND BECAUSE OF OUR
HOLDING THAT ANY NONCOMPLIANCE WITH RULE 11 IS REVERSIBLE ERROR, WE
NEED NOT CONSIDER THE GOVERNMENT'S CONTENTION THAT THE RECORD
ADEQUATELY SUPPORTS THE COURT OF APPEALS' CONCLUSION THAT THE DISTRICT
JUDGE SATISFIED HIMSELF THAT THERE WAS A FACTUAL BASIS FOR THE PLEA. 

/10/  SEE WADDY V. HEER, 383 F.2D 789 (C.A. 6TH CIR. 1967). 

/11/  SEE, E.G., MACHIBRODA V. UNITED STATES, 368 U.S. 487, 493
(1962); VON MOLTKE V. GILLIES, 332 U.S. 708 (1948); WALEY V. JOHNSTON,
316 U.S. 101 (1942). 

/12/  SEE STEPHENS V. UNITED STATES, 376 F.2D 23 (C.A. 10TH CIR.),
CERT. DENIED, 389 U.S. 881 (1967); RIMANICH V. UNITED STATES, 357 F.2D
537 (C.A. 5TH CIR. 1966); KADWELL V. UNITED STATES, 315 F.2D 667, 669
N.6 (C.A. 9TH CIR. 1963); ORFIELD, PLEAS IN FEDERAL CRIMINAL PROCEDURE,
35 NOTRE DAME LAW.  1, 31-32 (1959). 

CHIEF JUDGE WALTER E. HOFFMAN OF THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA HAS STATED THAT "(THE MULTITUDE OF
QUESTIONS PRESENTED BY THE ARRAIGNMENT AND PLEA UNDER RULES 10 AND 11
FURNISH THE MOST FREQUENT BASIS FOR ATTACK IN THE POPULAR POST
CONVICTION REMEDY AVAILABLE TO FEDERAL PRISONERS."  HOFFMAN, WHAT NEXT
IN FEDERAL CRIMINAL RULES?, 21 WASH. & LEE L.REV.  1, 8 (1964). 

/13/  SEE FED. RULE CRIM. PROC. 11, NOTES OF ADVISORY COMMITTEE ON
CRIMINAL RULES. 

/14/  IBID. 

/15/  SEE L. ORFIELD, CRIMINAL PROCEDURE UNDER THE FEDERAL RULES
SEC. 11:12 (1966); A. ENKER, PERSPECTIVES ON PLEA BARGAINING,
PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE,
TASK FORCE REPORT:  THE COURTS, APPENDIX A, 116 (1967); NOTE, GUILTY
PLEA BARGAINING:  COMPROMISES BY PROSECUTORS TO SECURE GUILTY PLEAS,
112 U.PA.L.REV.  865, 871-872 (1964). 

/16/  SEE N. 11, SUPRA. 

/17/  SEE D. NEWMAN, CONVICTION, THE DETERMINATION OF GUILT OR
INNOCENCE WITHOUT TRIAL 23 (1966); ABA PROJECT ON MINIMUM STANDARDS FOR
CRIMINAL JUSTICE: STANDARDS RELATING TO PLEAS OF GUILTY SEC. 1.4(A),
COMMENTARY (TENT.  DRAFT 1967). 

/18/  FED. RULE CRIM. PROC. 11, NOTES OF ADVISORY COMMITTEE ON
CRIMINAL RULES 

/19/  IBID. 

/20/  THE NATURE OF THE INQUIRY REQUIRED BY RULE 11 MUST NECESSARILY
VARY FROM CASE TO CASE, AND, THEREFORE, WE DO NOT ESTABLISH ANY GENERAL
GUIDELINES OTHER THAN THOSE EXPRESSED IN THE RULE ITSELF.  AS OUR
DISCUSSION OF THE FACTS IN THIS PARTICULAR CASE SUGGESTS, HOWEVER,
WHERE THE CHARGE ENCOMPASSES LESSER INCLUDED OFFENSES, PERSONALLY
ADDRESSING THE DEFENDANT AS TO HIS UNDERSTANDING OF THE ESSENTIAL
ELEMENTS OF THE CHARGE TO WHICH HE PLEADS GUILTY WOULD SEEM A NECESSARY
PREREQUISITE TO A DETERMINATION THAT HE UNDERSTANDS THE MEANING OF THE
CHARGE.  IN ALL SUCH INQUIRIES, "(MATTERS OF REALITY, AND NOT MERE
RITUAL, SHOULD BE CONTROLLING."  KENNEDY V. UNITED STATES, 397 F.2D 16,
17 (C.A. 6TH CIR. 1968). 

/21/  AFTER TWO SEPARATE PANELS HAD APPLIED HEIDEN RETROACTIVELY
WITHOUT DISCUSSION IN GETER V. UNITED STATES, 353 F.2D 208 (1965), AND
FREEMAN V. UNITED STATES, 350 F.2D 940, 943 (1965), IN A SUBSEQUENT EN
BANC DECISION THE NINTH CIRCUIT HELD THAT IT WOULD NOT APPLY HEIDEN TO
CASES IN WHICH THE GUILTY PLEA WAS ACCEPTED BEFORE THE DATE ON WHICH
HEIDEN WAS DECIDED.  CASTRO V. UNITED STATES, 396 F.2D 345 (C.A. 9TH
CIR. 1968). 

/22/  KENNEDY V. UNITED STATES, 397 F.2D 16 (C.A. 6TH CIR. 1968);
HALLIDAY V. UNITED STATES, 380 F.2D 270 (C.A. 1ST CIR. 1967) ("AT LEAST
WITH RESPECT TO (PRE-AMENDED) RULE 11"); STEPHENS V. UNITED STATES, 376
F.2D 23 (C.A. 10TH CIR.), CERT. DENIED, 389 U.S. 881 (1967); BROKAW V.
UNITED STATES, 368 F.2D 508 (C.A. 4TH CIR. 1966), CERT. DENIED, 386
U.S. 996 (1967) (AT LEAST WHERE THE DEFENDANT RAISES ONLY THE FACTUAL
ISSUES OF VOLUNTARINESS). 

/23/  UNITED STATES V. DEL PIANO, 386 F.2D 436 (C.A. 3D CIR. 1967),
CERT. DENIED, 392 U.S. 936 (1968); LANE V. UNITED STATES, 373 F.2D 570
(C.A. 5TH CIR. 1967); UNITED STATES V. KINCAID, 362 F.2D 939 (C.A. 4TH
CIR. 1966); BARTLETT V. UNITED STATES, 354 F.2D 745 (C.A. 8TH CIR.
1966). 

/24/  SEE 8 J. MOORE, FEDERAL PRACTICE PARA. 11.03(1), AT 11-22 (2D
ED. 1968).  BUT SEE UNITED STATES V. PATE, 357 F.2D 911 (C.A. 7TH CIR.
1966). 

/25/  SANSONE V. UNITED STATES, 380 U.S. 343 (1965). 

/26/  WILLFULLY FILING A FRAUDULENT OR FALSE RETURN IS A MISDEMEANOR
UNDER SEC. 7207 OF THE INTERNAL REVENUE CODE, AND WILLFULLY FAILING TO
PAY TAXES IS A MISDEMEANOR UNDER SEC. 7203 OF THE CODE.  THE CLOSE
INTERRELATIONSHIP BETWEEN THESE TWO OFFENSES AND THE FELONY FOR WHICH
PETITIONER WAS CONVICTED UNDER SEC. 7201 IS EXPLAINED IN DETAIL IN
SANSONE. 

     APPENDIX A TO OPINION OF THE COURT. 

THE RELEVANT PORTION OF THE COLLOQUY AT THE RULE 11 HEARING ON JULY
15 IS AS FOLLOWS: 

     "MR. SOKOL (PETITIONER'S COUNSEL):  . . . IF THE COURT PLEASE,

  I HAVE ADVISED MR. MCCARTHY OF THE CONSEQUENCES OF A PLEA.  AT

  THIS TIME, IN HIS BEHALF I WOULD LIKE TO WITHDRAW THE PLEA OF NOT

  GUILTY HERETOFORE ENTERED TO COUNT 2, AND ENTER A PLEA OF GUILTY

  TO COUNT 2.  THERE ARE THREE COUNTS. 

     "THE COURT:  IS THAT SATISFACTORY TO THE GOVERNMENT? 

     "MR. HUGHES (GOVERNMENT COUNSEL):  SATISFACTORY TO THE

  GOVERNMENT, YOUR HONOR.  THE GOVERNMENT WILL MOVE TO DISMISS

  COUNTS 1 AND 3. 

    "THE COURT:  THERE WILL BE A DISPOSITION IN REGARD TO THE OTHER
COUNT? 

     "MR. SOKOL:  HE HAS JUST MOVED TO DISMISS COUNTS 1 AND 3. 

     "THE COURT:  NOT UNTIL THE PLEA IS ACCEPTED AND THERE IS A
JUDGMENT THEREON. 

     "MR. HUGHES:  CORRECT. 

     "THE COURT:  THIS IS TAX EVASION, FIVE AND TEN? 

     "MR. HUGHES:  YES, YOUR HONOR, A MAXIMUM PENALTY OF FIVE YEARS
AND $10,000. 

     "THE COURT:  MR. MCCARTHY, YOUR LAWYER TELLS ME THAT YOU WANT

  TO ENTER A PLEA OF GUILTY TO THIS SECOND COUNT OF THIS

  INDICTMENT; IS THAT TRUE? 

     "DEFENDANT MCCARTHY:  YES, YOUR HONOR. 

     "THE COURT:  YOU UNDERSTAND ON YOUR PLEA OF GUILTY TO THE

  SECOND COUNT OF THIS INDICTMENT, YOU ARE WAIVING YOUR RIGHT TO A

  JURY TRIAL? 

     "DEFENDANT MCCARTHY:  YES, YOUR HONOR. 

     "THE COURT:  YOU UNDERSTAND ON YOUR PLEA OF GUILTY YOU MAY BE

  INCARCERATED FOR A TERM NOT TO EXCEED FIVE YEARS? 

     "DEFENDANT MCCARTHY:  YES, YOUR HONOR. 

     "THE COURT:  YOU UNDERSTAND YOU MAY BE FINED IN AN AMOUNT NOT
IN EXCESS OF $10,000? 

     "DEFENDANT MCCARTHY:  YES, YOUR HONOR. 

     "THE COURT:  KNOWING ALL THAT, YOU STILL PERSIST IN YOUR PLEA
OF GUILTY? 

"DEFENDANT MCCARTHY:  YES, YOUR HONOR. 

     "THE COURT:  THE RECORD WILL SHOW THAT THIS DEFENDANT, AFTER

  BEING ADVISED OF THE CONSEQUENCES OF HIS PLEA TO COUNT 2 OF THIS

 INDICTMENT, PERSISTS IN HIS PLEA.  THE PLEA WILL BE ACCEPTED. 

  THERE WILL BE A FINDING OF GUILTY IN THE MANNER AND FORM AS

  CHARGED IN COUNT 2 OF THIS INDICTMENT, JUDGMENT ON THAT FINDING. 

     "NOW, IN REGARD TO COUNTS 1 AND 3? 

     "MR. HUGHES:  YOUR HONOR, THE GOVERNMENT WILL MOVE TO DISMISS

  THEM.  I WOULD ALSO REQUEST THE COURT TO ASK WHETHER OR NOT ANY

  PROMISES OR THREATS HAVE BEEN MADE. 

     "MR. SOKOL:  NO, NO PROMISES OR THREATS. 

     "THE COURT:  I AM GOING TO ASK THE DEFENDANT HIMSELF.  HAVE
ANY

  PROMISES BEEN MADE TO YOU FOR ENTERING A PLEA OF GUILTY? 

     "DEFENDANT MCCARTHY:  NO, YOUR HONOR. 

     "THE COURT:  HAS ANYBODY THREATENED YOU THAT IF YOU DIDN'T

ENTER A PLEA OF GUILTY SOMETHING WOULD HAPPEN TO YOU? 

"DEFENDANT MCCARTHY:  I BEG YOUR PARDON? 

     "THE COURT:  HAS ANYBODY THREATENED YOU TO ENTER A PLEA OF
GUILTY? 

   "DEFENDANT MCCARTHY:  THAT'S RIGHT, OF MY OWN VOLITION, YOUR
HONOR. 

     "THE COURT:  ALL RIGHT.  ENTER A PRE-TRIAL INVESTIGATION ORDER

  AND CONTINUE THE MATTER UNTIL THE 14TH DAY OF SEPTEMBER.  SAME

  BOND MAY STAND." 

 APPENDIX B TO OPINION OF THE COURT. 

THE COLLOQUY AT THE SEPTEMBER 14 SENTENCING HEARING INCLUDED THE
FOLLOWING: 

   "MR. SOKOL (PETITIONER'S COUNSEL):  . . . IF THE COURT PLEASE,

  APART FROM THE WRECKING OF HIS PHYSICAL HEALTH THAT HAS ATTENDED

  A NUMBER OF THE PROBLEMS THAT RELATE TO THE DRINKING IN THIS

  CASE, THIS MAN HAS EXPERIENCED A KIND OF PUNISHMENT,

  SELF-INFLICTED, WHICH ALMOST IS A CATEGORICAL LISTING OF HOW HE

  FLEES, ACTUALLY, AND I USE THAT WORD ADVISEDLY, FLEES FROM

  CONSEQUENCE TO PUNISHMENT TO ADDITIONAL CONSEQUENCE.  IT IS A SAD

  THING WHEN AT THE AGE OF SIXTY-FIVE A MAN WHO HAS BEEN ABLE TO

  REAR, WITH THE HELP OF HIS WIFE, A FINE FAMILY, HAS TO LEAVE A

  LEGACY SUCH AS THIS.  I SUBMIT TO THE COURT THAT HE NEEDS NO

DETERRENT.  I CANNOT IMAGINE A MAN-- APART FROM THE CONVENTIONAL

  CONTRITION, HE HAS ACTIVELY SOUGHT OUT HELP IN ORDER TO OVERCOME

  WHAT HAS BECOME A VERY, VERY SERIOUS PHYSICAL AND PSYCHOLOGICAL

  PROBLEM. 

      "WHEN I SPOKE WITH MR. SANCULIUS (THE PROBATION OFFICER), I

  KNEW THAT WE HAD GIVEN TO HIM SOME REFERENCE TO THE FACT AND SOME

  ATTESTATIONS OF THE FACTS, SUPPORTED THE FACTS, THAT THERE HAD

  BEEN A VERY, VERY SERIOUS PSYCHOLOGICAL PROBLEM HERE. 

     "WITH RESPECT TO THE TAX CASE ITSELF, HE NEVER TOOK ONE SINGLE

  STEP TO DELUDE THE INVESTIGATING OFFICER FROM THE VERY, VERY

  START, AND THIS WAS BEFORE COUNSEL WAS IN THE MATTER.  HE

  EXTENDED-- IN OTHER WORDS, HE WAS OPEN AND HE ANSWERED ALL

  QUESTIONS READILY. 

     "THE COURT:  YES, BUT HIS BOOKS WERE IN SUCH SHAPE THAT IT
MADE

  IT VERY DIFFICULT TO-- AND THAT, IN MY OPINION, WAS NOT

  INADVERTENT. 

        .          .          .          . 

     "MR. SOKOL:  . . . WHEN A MAN IS NEGLECTFUL AND ADOPTS A KIND

  OF A DEVIOUS WAY OF SECRETING HIMSELF FROM THE GOVERNMENT, THAT

  IS ONE THING, AND WE ARE MINDFUL THEY ARE KIND OF INDICIA OF

  FRAUD.  BUT WHERE A MAN'S PATTERN IN NEGLECT OF NOT ONLY

  SOMETHING LIKE THIS-- HE IS SLOPPY WITH RESPECT TO THAT, BUT IN

  GROSS, IN GROSS,UNACCOUNTABLE, SO TO SPEAK. 

     "THERE WAS NO DIRECT RELATIONSHIP TO THE CONSEQUENCES OF

  TAXATION.  NOW, I WOULD LIKE TO POINT OUT IN THAT CONNECTION THAT

WHEN THE INVESTIGATION COMMENCED IT ZEROED IN, AND VERY, VERY

  PROPERLY, THERE WAS A DISCLOSURE MADE FROM THE VERY, VERY FIRST

  THAT IN THE CASE OF THE BLUE CROSS CHECK, THE MATTER OF

  DEPOSITING THAT IN A SECOND ACCOUNT ACTUALLY HAD ABSOLUTELY

  NOTHING WHATEVER TO DO WITH THE GOVERNMENT.  AT THAT TIME HE HAD

  BEEN VERY, VERY DEEPLY INVOLVED IN A PROTRACTED DRINKING

  SITUATION AND HAD BEEN IN THE HOSPITAL FOR SEVERAL WEEKS.  HIS

  FAMILY, IN ORDER TO AVOID THE MATTER OF HIM REALLY NEEDING

  SOMEBODY TO LEAD HIM AROUND BY THE NOSE SAID, AND HIS WIFE SAID,

  'YOU HAVE TO PUT YOURSELF UNDER THE JURISDICTION OF YOUR

  BROTHER,' AND THERE WAS SOME INDICATION THAT HE WAS SUPPOSED TO

  DEPOSIT THIS AND HE WOULD NOT HAVE DISPOSITION OVER HIS OWN

  ASSETS.  THEY DID NOT FEEL THAT HE COULD LOOK OUT FOR HIMSELF. 

  HE WAS OPPRESSED, AND THERE IS NO SENSE IN GOING OVER HOW PEOPLE

  BECOME SO.  IN THIS PARTICULAR CASE WITH A HISTORY AFTER

  SIXTY-FIVE YEARS OF THIS KIND OF A SITUATION, ONE CAN PERHAPS

  GUESS WITHOUT GOING INTO FREUDIAN TERMS HE WAS OPPRESSED, AND IN

  ORDER TO FREE HIMSELF-- AND THIS HAD NOTHING TO DO WITH THE

  GOVERNMENT-- IN ORDER TO FREE HIMSELF FROM WHAT HE FELT WAS A

  TRAP SITUATION WHERE HE, AT THE AGE OF SIXTY-TWO OR SIXTY-THREE

  WAS BEING TREATED LIKE A LITTLE BOY, HE PUT IT IN A DIFFERENT

  BANK ACCOUNT.  BUT THERE WAS NEVER ANY DISPOSITION TO DEPRIVE THE

UNITED STATES OF ITS DUE. 

     "HE HAS NEVER ACTED, ACTUALLY, IN WHAT YOU WOULD CALL NORMAL

  CONSEQUENCE, BECAUSE AN INTERVIEW WITH THIS MAN, EVEN ONCE,

  INDICATES THAT IF HE HAS-- AND IT IS LIKE A LITTLE BOY-- IF HE

  HAS THE CONSEQUENCE LYING BEFORE HIM HE SAYS, 'OH, YES.' 

.          .          .          . 

     "MR. SOKOL:  HE DID NOT ACT IN CONTEMPLATION OF AVOIDING

  TAXATION.  THAT WAS A NATURAL CONSEQUENCE OF WHAT CAN BEST BE

  DESCRIBED AS GROSS NEGLECT, AND CRIMINAL NEGLECT, IF YOU PLEASE. 

 "I COULD NOT HAVE, IN GOOD CONSCIENCE, RECOMMENDED THAT HE GO

  INTO A PLEA IF I DID NOT FEEL THAT NEGLECT HAS BECOME CRIMINAL

  WHEN IT REACHES A CERTAIN STAGE.  BUT THIS WAS NOT A PART OF ANY

  ELABORATE SCHEME OR ANY DEVIOUS COURSE OF CONDUCT WHERE HE WAS

  ACTING IN CONTEMPLATION OF A TAX RETURN THAT-- 

     "THE COURT:  IT TOOK PLACE OVER A SERIES OF FOUR YEARS, DIDN'T
IT, COUNSEL? 

     "MR. SOKOL:  NO, YOUR HONOR, BECAUSE THE REAL PROBLEM RELATED

  TO THE MATTER OF HIS AVOIDING THE ACCOUNTABILITY NOT TO HIS

  GOVERNMENT BUT TO THE MATTER OF THE SPENDING MONEY. 

     "THE COURT:  WELL, I AM SURE THAT IF THE GOVERNMENT HAD NOT

STEPPED IN, WHY, IT WOULD HAVE LASTED OVER A PERIOD OF EIGHT

  YEARS. 

     "MR. SOKOL:  NO, HE HAD ALREADY DONE THIS, APART FROM THE FACT

  THAT HE HAD SOUGHT HELP WITH RESPECT TO THE DRINKING, APART FROM

  THE FACT THAT HE HAD SOUGHT HELP WITH RESPECT TO THE PSYCHIATRIC

  PROBLEM, AND APART FROM THE FACT THAT HE HAD ALREADY, SO TO

  SPEAK, CONTAINED HIMSELF, HE DID, IN ADDITION, SEEK OUT THE HELP

OF MR. ABRAHAM ANGRAM, MY ASSOCIATE COUNSEL IN THE CASE, WHO WAS

  GUIDING HIM AND HE WAS ON THE RIGHT PATH.  NO, HE HAD-- I WANT TO

  POINT OUT TO THE COURT THAT THIS HAS OCCURRED.  THIS IS FAIT

  ACCOMPLI." 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR, THOUGH NOT WITHOUT SOME DOUBT, IN THE REVERSAL OF THE
JUDGMENT OF CONVICTION IN THIS CASE.  RULE 11 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE REQUIRES THAT THE TRIAL JUDGE PERSONALLY ADDRESS A
DEFENDANT WHO PLEADS GUILTY IN ORDER TO ASCERTAIN IF HE UNDERSTANDS THE
NATURE OF THE CRIME OF WHICH HE HAS PLEADED GUILTY.  IN THIS CASE THE
TRIAL JUDGE DID NOT PERSONALLY ADDRESS THE DEFENDANT BUT SEEMS TO HAVE
ACCEPTED THE STATEMENT OF THE DEFENDANT'S LAWYER THAT HE HAD ADVISED
THE PETITIONER OF THE CONSEQUENCES OF A PLEA OF GUILTY.  I BASE MY
CONCURRENCE IN THE JUDGMENT NOT UPON ANY "SUPERVISORY POWER" OF THIS
COURT, HOWEVER, BUT EXCLUSIVELY ON THE FAILURE OF THE JUDGE TO FIRST
ADDRESS THE DEFENDANT PERSONALLY, AS REQUIRED BY RULE 11. 

MAURICE J. MCCARTHY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE BARNABAS F. SEARS AND WAYLAND B. CEDARQUIST. 

JAMES VAN R. SPRINGER ARGUED THE CAUSE FOR THE UNITED STATES.  ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
ROGOVIN, FRANCIS X. BEYTAGH, JR., BEATRICE ROSENBERG, AND MERVYN
HAMBURG. 
..END :


















BOULDEN V. HOLMAN, 394 U.S. 478 


       BOULDEN V. HOLMAN, WARDEN. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT. 

        NO. 644.  ARGUED FEBRUARY 26, 1969.-- DECIDED APRIL 2,

           1969. 


PETITIONER WAS CONVICTED OF FIRST-DEGREE MURDER AND SENTENCED TO
DEATH IN ACCORDANCE WITH THE JURY'S VERDICT.  AFTER THE CONVICTION WAS
AFFIRMED BY THE ALABAMA SUPREME COURT PETITIONER REQUESTED FEDERAL
HABEAS CORPUS RELIEF ON THE GROUND THAT THE INTRODUCTION OF A
CONFESSION INTO EVIDENCE AT HIS TRIAL (WHICH ANTEDATED ESCOBEDO V.
ILLINOIS, 378 U.S. 478, AND MIRANDA V. ARIZONA, 384 U.S. 436) VIOLATED
HIS CONSTITUTIONAL RIGHTS.  AFTER A FULL HEARING THE DISTRICT COURT
FOUND THE CONFESSION VOLUNTARY AND THE COURT OF APPEALS AFFIRMED.  IN
HIS BRIEF IN THIS COURT PETITIONER RAISED THE QUESTION WHETHER THE JURY
THAT SENTENCED HIM TO DEATH WAS SELECTED IN ACCORDANCE WITH THE
PRINCIPLES RECENTLY ANNOUNCED IN WITHERSPOON V. ILLINOIS, 391 U.S.
510.  HELD: 

1.  THE LOWER COURTS' HOLDING THAT PETITIONER'S CONFESSION WAS
VOLUNTARY IS JUSTIFIED.  PP. 479-481. 

2.  SINCE SEVERAL VENIREMEN WERE EXCUSED FOR CAUSE APPARENTLY
BECAUSE THEY VOICED GENERAL OBJECTIONS TO THE DEATH PENALTY, IT APPEARS
THAT THE SENTENCE OF DEATH CANNOT CONSTITUTIONALLY STAND UNDER
WITHERSPOON, SUPRA, AND THE CAUSE IS REMANDED TO THE DISTRICT COURT
WHERE THIS BELATED ISSUE MAY BE FULLY CONSIDERED.  PP. 481-484. 

385 F.2D 102, VACATED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED IN THE CIRCUIT COURT OF MORGAN COUNTY,
ALABAMA, OF FIRST-DEGREE MURDER, AND WAS SENTENCED TO DEATH IN
ACCORDANCE WITH THE VERDICT OF THE JURY.  AFTER THE ALABAMA SUPREME
COURT AFFIRMED THE CONVICTION, 278 ALA. 437, 179 SO.2D 20, THE
PETITIONER INSTITUTED THIS HABEAS CORPUS PROCEEDING IN THE UNITED
STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA.  DISTRICT
JUDGE FRANK M. JOHNSON, JR., DENIED RELIEF, 257 F.SUPP.  1013, AND THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  385 F.2D 102,
REHEARING DENIED, 393 F.2D 932, 395 F.2D 169.  WE GRANTED CERTIORARI. 
393 U.S. 822. 

I. 

ALTHOUGH THERE WAS SUBSTANTIAL ADDITIONAL EVIDENCE OF THE
PETITIONER'S GUILT, HIS CONVICTION WAS BASED IN PART ON A CONFESSION HE
HAD MADE SOME DAYS AFTER HIS ARREST.  HIS REQUEST FOR HABEAS CORPUS
RELIEF RESTED ON A CLAIM THAT THE INTRODUCTION OF THAT CONFESSION INTO
EVIDENCE VIOLATED HIS RIGHTS UNDER THE CONSTITUTION.  /1/  SINCE HIS
TRIAL ANTEDATED OUR DECISIONS IN ESCOBEDO V. ILLINOIS, 378 U.S. 478,
AND MIRANDA V. ARIZONA, 384 U.S. 436, THAT CLAIM IS ESSENTIALLY A
CONTENTION THAT UNDER THE CONSTITUTIONAL STANDARDS PREVAILING PRIOR TO
THOSE DECISIONS, HIS CONFESSION WAS MADE INVOLUNTARILY.  SEE JOHNSON V.
NEW JERSEY, 384 U.S. 719; DAVIS V. NORTH CAROLINA, 384 U.S. 737. 

AFTER HOLDING A FULL HEARING REGARDING THE ISSUE AND CONSIDERING THE
STATE COURT RECORD, THE DISTRICT COURT, IN AN OPINION APPLYING THE
PROPER CONSTITUTIONAL STANDARDS, WAS UNABLE TO CONCLUDE THAT THE
PETITIONER'S CONFESSION WAS "OTHER THAN VOLUNTARILY MADE."  THE
CONFESSION, THE COURT FOUND, "SIMPLY WAS NOT COERCED."  257 F.SUPP.,AT
1017, 1016.  THE COURT OF APPEALS, LIKEWISE APPLYING APPROPRIATE
STANDARDS, SIMILARLY COULD "FIND FROM THE RECORD HERE NO PLAUSIBLE
SUGGESTION THAT BOULDEN'S WILL WAS OVERBORNE . . . ."  385 F.2D,AT
107.  /2/ 

LITTLE PURPOSE WOULD BE SERVED BY AN EXTENSIVE SUMMATION OF THE
RECORD IN THE DISTRICT COURT PROCEEDINGS AND IN THE STATE TRIAL COURT. 
THE QUESTION WHETHER A CONFESSION WAS VOLUNTARILY MADE NECESSARILY
TURNS ON THE "TOTALITY OF THE CIRCUMSTANCES"  /3/  IS ANY PARTICULAR
CASE, AND MOST OF THE RELEVANT CIRCUMSTANCES SURROUNDING THE
PETITIONER'S CONFESSION ARE SET OUT IN THE OPINIONS OF THE DISTRICT
COURT AND THE COURT OF APPEALS.  SUFFICE IT TO SAY THAT WE HAVE MADE AN
INDEPENDENT STUDY OF THE ENTIRE RECORD /4/  AND HAVE DETERMINED THAT,
ALTHOUGH THE ISSUE IS A RELATIVELY CLOSE ONE, THE CONCLUSION REACHED BY
THE DISTRICT COURT AND THE COURT OF APPEALS WAS JUSTIFIED. 

        II. 

IN SEEKING HABEAS CORPUS THE PETITIONER CHALLENGED ONLY THE
ADMISSION OF HIS CONFESSION INTO EVIDENCE, AND HIS PETITION FOR
CERTIORARI WAS LIMITED TO THAT CLAIM.  IN HIS BRIEF AND IN ORAL
ARGUMENT ON THE MERITS, HOWEVER, HE HAS RAISED A SUBSTANTIAL ADDITIONAL
QUESTION:  WHETHER THE JURY THAT SENTENCED HIM TO DEATH WAS SELECTED IN
ACCORDANCE WITH THE PRINCIPLES UNDERLYING OUR DECISION LAST TERM IN
WITHERSPOON V. ILLINOIS, 391 U.S. 510. 

WE HELD IN WITHERSPOON THAT "A SENTENCE OF DEATH CANNOT BE CARRIED
OUT IF THE JURY THAT IMPOSED OR RECOMMENDED IT WAS CHOSEN BY EXCLUDING
VENIREMEN FOR CAUSE SIMPLY BECAUSE THEY VOICED GENERAL OBJECTIONS TO
THE DEATH PENALTY OR EXPRESSED CONSCIENTIOUS OR RELIGIOUS SCRUPLES
AGAINST ITS INFLICTION."  391 U.S.,AT 522.  IN THE PRESENT CASE, THE
RECORD INDICATES THAT NO LESS THAN 15 PROSPECTIVE JURORS WERE EXCLUDED
BY THE PROSECUTION UNDER AN ALABAMA STATUTE THAT PROVIDES: 

     "ON THE TRIAL FOR ANY OFFENSE WHICH MAY BE PUNISHED CAPITALLY,

  . . . IT IS A GOOD CAUSE OF CHALLENGE BY THE STATE THAT THE

  PERSON HAS A FIXED OPINION AGAINST CAPITAL . . . PUNISHMENT) . .

  . ."  /5/

THAT STATUTORY STANDARD HAS BEEN CONSTRUED BY THE ALABAMA SUPREME COURT
TO AUTHORIZE THE EXCLUSION OF POTENTIAL JURORS WHO, ALTHOUGH "OPPOSED
TO CAPITAL PUNISHMENT, . . . WOULD HANG SOME MEN."  UNTREINOR V. STATE,
146 ALA. 26, 33, 41 SO. 285, 287. 

HOWEVER, AS WE EMPHASIZED IN WITHERSPOON, "THE CRITICAL QUESTION . .
. IS NOT HOW THE PHRASES EMPLOYED IN THIS AREA HAVE BEEN CONSTRUED BY
COURTS AND COMMENTATORS.  WHAT MATTERS IS HOW THEY MIGHT BE UNDERSTOOD-
OR MISUNDERSTOOD-- BY PROSPECTIVE JURORS."  391 U.S.,AT 516, N. 9. 
"THE MOST THAT CAN BE DEMANDED OF A VENIREMAN IN THIS REGARD," WE SAID,
"IS THAT HE BE WILLING TO CONSIDER ALL OF THE PENALTIES PROVIDED BY
STATE LAW, AND THAT HE NOT IRREVOCABLY COMMITTED, BEFORE THE TRIAL HAS
BEGUN, TO VOTE AGAINST THE PENALTY OF DEATH REGARDLESS OF THE FACTS AND
CIRCUMSTANCES THAT MIGHT EMERGE IN THE COURSE OF THE PROCEEDINGS.  IF
THE VOIR DIRE TESTIMONY IN A GIVEN CASE INDICATES THAT VENIREMEN WERE
EXCLUDED ON ANY BROADER BASIS THAN THIS, THE DEATH SENTENCE CANNOT BE
CARRIED OUT . . . ."  ID., AT 522, N. 21.  WE MADE IT CLEAR THAT
"(UNLESS A VENIREMAN STATES UNAMBIGUOUSLY THAT HE WOULD AUTOMATICALLY
VOTE AGAINST THE IMPOSITION OF CAPITAL PUNISHMENT NO MATTER WHAT THE
TRIAL MIGHT REVEAL, IT SIMPLY CANNOT BE ASSUMED THAT THAT IS HIS
POSITION."  ID., AT 516, N. 9. 

IT APPEARS THAT AT THE PETITIONER'S TRIAL TWO PROSPECTIVE JURORS
WERE EXCLUDED ONLY AFTER THEY HAD ACKNOWLEDGED THAT THEY WOULD "NEVER"
BE WILLING TO IMPOSE THE DEATH PENALTY.  /6/  ELEVEN VENIREMEN,
HOWEVER, APPEAR TO HAVE BEEN EXCUSED FOR CAUSE SIMPLY ON THE BASIS OF
THEIR AFFIRMATIVE ANSWERS TO THE QUESTION WHETHER, IN THE STATUTORY
LANGUAGE, THEY HAD "A FIXED OPINION AGAINST" CAPITAL PUNISHMENT.  THE
FOLLOWING EXCERPT FROM THE RECORD IS TYPICAL OF THOSE INSTANCES: 

     "THE COURT:  DO YOU HAVE A FIXED OPINION AGAINST CAPITAL
PUNISHMENT? 

     "MR. SEIBERT:  YES, SIR. 

     "MR. HUNDLEY:  WE CHALLENGE. 

     "THE COURT:  DEFENDANT? 

     "MR. CHENAULT:  NO QUESTIONS. 

     "THE COURT:  STAND ASIDE.  YOU ARE EXCUSED."  TWO OTHER
VENIREMEN SEEM TO HAVE BEEN EXCLUDED MERELY BY VIRTUE OF THEIR
STATEMENTS THAT THEY DID NOT "BELIEVE IN" CAPITAL PUNISHMENT.  /7/  YET
IT IS ENTIRELY POSSIBLE THAT A PERSON WHO HAS "A FIXED OPINION AGAINST"
OR WHO DOES NOT "BELIEVE IN" CAPITAL PUNISHMENT MIGHT NEVERTHELESS BE
PERFECTLY ABLE AS A JUROR TO ABIDE BY EXISTING LAW-- TO FOLLOW
CONSCIENTIOUSLY THE INSTRUCTIONS OF A TRIAL JUDGE AND TO CONSIDER
FAIRLY THE IMPOSITION OF THE DEATH SENTENCE IN A PARTICULAR CASE. 

IT APPEARS, THEREFORE, THAT THE SENTENCE OF DEATH IMPOSED UPON THE
PETITIONER CANNOT CONSTITUTIONALLY STAND UNDER WITHERSPOON V.
ILLINOIS.  WE DO NOT, HOWEVER, FINALLY DECIDE THAT QUESTION HERE, FOR
SEVERAL REASONS.  FIRST, THE WITHERSPOON ISSUE WAS NOT RAISED IN THE
DISTRICT COURT, IN THE COURT OF APPEALS, /8/ OR IN THE PETITION FOR
CERTIORARI FILED IN THIS COURT.  A FURTHER HEARING DIRECTED TO THE
ISSUE MIGHT CONCEIVABLY MODIFY IN SOME FASHION THE CONCLUSION SO
STRONGLY SUGGESTED BY THE RECORD NOW BEFORE US.  FURTHER, IT IS NOT
CLEAR WHETHER THE PETITIONER HAS EXHAUSTED HIS STATE REMEDIES WITH
RESPECT TO THIS ISSUE.  FINALLY, IN THE EVENT IT TURNS OUT, AS NOW
APPEARS, THAT RELIEF FROM THIS DEATH SENTENCE MUST BE ORDERED, A LOCAL
FEDERAL COURT WILL BE FAR BETTER EQUIPPED THAN ARE WE TO FRAME AN
APPROPRIATE DECREE WITH DUE REGARD TO AVAILABLE ALABAMA PROCEDURES. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND THE
CASE IS REMANDED TO THE DISTRICT COURT, WHERE THE ISSUE THAT HAS
BELATEDLY BEEN BROUGHT TO OUR ATTENTION MAY BE PROPERLY AND FULLY
CONSIDERED. 

              IT IS SO ORDERED. 

/1/  TWO CONFESSIONS WERE IN FACT OBTAINED, ALTHOUGH ONLY THE SECOND
WAS ACTUALLY INTRODUCED INTO EVIDENCE.  BOTH THE DISTRICT COURT AND THE
COURT OF APPEALS PROPERLY NOTED THAT THE SECOND CONFESSION MIGHT HAVE
BEEN THE "END PRODUCT OF THE EARLIER" ONE, IN THAT "THE ACCUSED (MAY
HAVE BEEN) ACUTELY AWARE THAT HE HAD EARLIER MADE ADMISSIONS AGAINST
HIS INTEREST AND WAS, THEREFORE, MERELY REPEATING HIS OSTENSIBLY
UNERASEABLE ( ) WORDS OF CONFESSION."  385 F.2D,AT 106.  SEE DARWIN V.
CONNECTICUT, 391 U.S. 346; BEECHER V. ALABAMA, 389 U.S. 35; CF. UNITED
STATES V. BAYER, 331 U.S. 532, 540.  CONSEQUENTLY, IN ORDER TO
DETERMINE WHETHER THE SECOND CONFESSION WAS PROPERLY ADMITTED, THEY
PASSED UPON THE VOLUNTARINESS OF THE FIRST AS WELL AS THE SECOND
CONFESSION.  WE HAVE CONSIDERED THE RECORD IN LIKE FASHION. 

THERE IS EVIDENCE THAT EVEN BEFORE HIS TWO FORMAL CONFESSIONS WERE
OBTAINED, THE PETITIONER HAD, SHORTLY AFTER HIS ARREST, ADMITTED
KILLING THE DECEASED.  THE EVIDENCE WAS CONTROVERTED, BOTH AS TO
WHETHER THE PETITIONER MADE ANY SUCH ADMISSION AND AS TO WHETHER, IF HE
DID, THE ADMISSION WAS VOLUNTARY.  IT IS SUGGESTED IN DISSENT THAT
BECAUSE THE OPINIONS OF THE DISTRICT COURT AND THE COURT OF APPEALS DO
NOT EXPLICITLY REFER TO THAT EVIDENCE, IT MUST BE ASSUMED THAT THOSE
COURTS DID NOT CONSIDER IT, AND THAT THE CONCLUSIONS THEY REACHED
SHOULD THEREFORE NOT BE SUSTAINED.  WE CANNOT AGREE.  THE PETITIONER
HAS CONSISTENTLY CONTENDED THAT THE EVENTS IMMEDIATELY FOLLOWING HIS
ARREST CONTRIBUTED TO THE INVOLUNTARINESS OF HIS LATER CONFESSIONS, AND
WE ARE UNABLE TO ASSUME THAT THE EVIDENCE REFERRED TO WAS NOT
CONSIDERED BY THE DISTRICT COURT AND THE COURT OF APPEALS.  IN ANY
EVENT, OUR OWN DECISION WITH RESPECT TO THE VOLUNTARINESS ISSUE HAS
BEEN REACHED WITH THAT EVIDENCE FULLY IN MIND. 

/2/ IN AFFIRMING THE PETITIONER'S CONVICTION, THE ALABAMA SUPREME
COURT HAD REACHED A LIKE CONCLUSION.  278 ALA.,AT 446-452, 179 SO.2D,AT
28-34. 

/3/  FIKES V. ALABAMA, 352 U.S. 191, 197. 

/4/  SEE SPANO V. NEW YORK, 360 U.S. 315, 316. 

/5/  ALA. CODE, TIT. 30, SEC. 57. 

/6/  "THE COURT:  . . . DO YOU HAVE A FIXED OPINION AGAINST CAPITAL
OR PENITENTIARY PUNISHMENT? 

"JOHN L. NELSON RAISED HIS HAND. 

"MR. HUNDLEY:  CHALLENGE. 

"THE COURT:  DO YOU HAVE A FIXED OPINION AGAINST CAPITAL OR
PENITENTIARY PUNISHMENT? 

"MR. NELSON:  CAPITAL PUNISHMENT. 

"THE COURT:  YOU THINK YOU WOULD NEVER BE WILLING TO INFLICT THE
DEATH PENALTY IN ANY TYPE CASE? 

"MR. NELSON:  YES, SIR. 

"MR. HUNDLEY:  WE CHALLENGE. 

"THE COURT:  DEFENDANT? 

"MR. CHENAULT:  NO QUESTIONS. 

"THE COURT:  STAND ASIDE, MR. NELSON. 

"E. O. MOON RAISED HIS HAND. 

"THE COURT:  DO YOU HAVE A FIXED OPINION AGAINST CAPITAL OR
PENITENTIARY PUNISHMENT? 

"MR. MOON:  CAPITAL PUNISHMENT. 

"THE COURT:  YOU MEAN YOU WOULD NEVER INFLICT THE DEATH PENALTY ON (
) ANY CASE? 

"MR. MOON:  THAT'S RIGHT. 

"MR. HUNDLEY:  CHALLENGE. 

"THE COURT:  DEFENDANT? 

"MR. CHENAULT:  NO QUESTIONS. 

"THE COURT:  STAND ASIDE, MR. MOON." 

/7/  "THE COURT:  WHAT IS YOUR POSITION ON CAPITAL PUNISHMENT OR
PENITENTIARY PUNISHMENT? 

"MR. COLLIER:  I DON'T BELIEVE IN CAPITAL PUNISHMENT. 

"THE COURT:  STATE? 

"MR. HUNDLEY:  CHALLENGE. 

"THE COURT:  ANY QUESTIONS, MR. CHENAULT? 

"MR. CHENAULT:  NO QUESTIONS. 

"THE COURT: YOU ARE EXCUSED.  . . .

        .          .          .        . 

"MR. PATTON:  . . . AND I DON'T BELIEVE IN CAPITAL PUNISHMENT. 

"MR. HUNDLEY:  I'LL CHALLENGE MR. PATTON ON THAT ANSWER, ON THE
GROUND HE DOESN'T BELIEVE IN CAPITAL PUNISHMENT. 

"THE COURT:  ANY QUESTIONS BY THE DEFENDANT? 

"MR. CHENAULT:  NO QUESTIONS. 

"THE COURT:  WE . . . WILL LET YOU STAND ASIDE." 

AS THE INITIAL PORTION OF THIS COLLOQUY AND THAT SET OUT IN FOOTNOTE
6 INDICATE, ALABAMA LAW ALSO AUTHORIZES THE EXCLUSION OF ANY POTENTIAL
JUROR WHO HAS A "FIXED OPINION AGAINST . . . PENITENTIARY" PUNISHMENT. 
ALA. CODE, TIT. 30, SEC. 57.  TWO VENIREMEN WERE EXCUSED WHEN THEY
MERELY RESPONDED AFFIRMATIVELY TO THE DISJUNCTIVELY PHRASED QUESTION
WHETHER THEY HAD "A FIXED OPINION AGAINST CAPITAL OR PENITENTIARY
PUNISHMENT."  IT IS THUS NOT POSSIBLE TO DISCERN FROM THE RECORD WHICH
TYPE OF PUNISHMENT THEY OBJECTED TO, ALTHOUGH THE MORE LIKELY
ASSUMPTION WOULD BE THAT IT WAS CAPITAL PUNISHMENT.  WE DID NOT IN
WITHERSPOON PASS UPON THE VALIDITY OF THE "PENITENTIARY" ANALOGUE TO
DEATH-QUALIFICATION OF JURORS, AND WE INTIMATE TODAY NO OPINION
REGARDING THAT QUESTION. 

/8/  THE COURT OF APPEALS' DECISION WAS RENDERED PRIOR TO OUR
DECISION IN WITHERSPOON. 

MR. JUSTICE BLACK, WHILE STILL ADHERING TO HIS DISSENT IN
WITHERSPOON V. ILLINOIS, 391 U.S. 510, 532, ACQUIESCES IN THE COURT'S
JUDGMENT AND OPINION. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM THE CHIEF JUSTICE AND MR. JUSTICE MARSHALL
JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE THAT THE CASE MUST BE REMANDED TO THE DISTRICT COURT FOR A
DETERMINATION OF THE WITHERSPOON QUESTION, AND I THEREFORE JOIN IN PART
II OF THE COURT'S OPINION.  HOWEVER, I BELIEVE THAT ON REMAND THE
DISTRICT COURT SHOULD ALSO CONSIDER AN ASPECT OF PETITIONER'S COERCED
CONFESSION CLAIM WHICH THE OPINIONS IN THE TWO COURTS BELOW COMPLETELY
IGNORE, AND TO WHICH THIS COURT PAYS ONLY PASSING ATTENTION. 

THE COURT STATES THAT "(TWO CONFESSIONS WERE IN FACT OBTAINED,
ALTHOUGH ONLY THE SECOND WAS ACTUALLY INTRODUCED INTO EVIDENCE."  ANTE,
AT 479, N. 1.  THE FIRST OF THESE WAS OBTAINED DURING SEVERAL HOURS OF
INTERROGATION IN THE LIMESTONE COUNTY JAIL ON THE NIGHT OF PETITIONER'S
ARREST, MAY 1, 1964.  THE SECOND WAS OBTAINED DURING PETITIONER'S RE
ENACTMENT OF THE CRIME ON MAY 6.  THE COURTS BELOW EXAMINED THE
CIRCUMSTANCES IN WHICH BOTH CONFESSIONS WERE OBTAINED, AND CONCLUDED
THAT BOTH WERE VOLUNTARY.  IN MY OPINION THIS DOES NOT EXHAUST THE
COERCED CONFESSION ISSUE.     AS THE COURT IS COMPELLED TO RECOGNIZE,
PETITIONER MADE INCULPATORY STATEMENTS ON, NOT TWO, BUT THREE DIFFERENT
OCCASIONS.  THE FIRST OF THESE WAS ON THE AFTERNOON OF MAY 1, PRECEDING
THE INTERROGATION AT THE JAIL.  /1/  ON THAT AFTERNOON, PETITIONER WAS
APPREHENDED BY LAW ENFORCEMENT OFFICERS NEAR THE SCENE OF THE CRIME. 
ACCORDING TO PETITIONER, AN OFFICER OF THE HIGHWAY PATROL APPROACHED
HIM AND ASKED HIS NAME:     "I TOLD HIM; THEN HE TOLD ME TO RUN BECAUSE
HE HAD BEEN WANTING TO KILL HIM A NIGGER A LONG TIME . . . . (HE TOLD
ME TO RUN, AND THEN HE THROWED THE RIFLE UP LIKE HE WAS GETTING READY
TO SHOOT THERE."  RECORD TRANSCRIPT 539-540.  PETITIONER WAS TAKEN TO
THE SCENE OF THE CRIME, WHERE HE WAS PLACED, IN HANDCUFFS, IN A POLICE
CAR ALONE WITH HIGHWAY PATROL CAPTAIN WILLIAMS.  HE WAS NOT GIVEN ANY
OF THE MIRANDA WARNINGS.  /2/  AS PETITIONER RELATED: 

"CAPTAIN WILLIAMS ASKED ME WHAT HAD HAPPENED, AND I STARTED TO TELL
HIM; HE CUSSED ME AND TOLD ME IT WASN'T . . . . I TOLD CAPTAIN WILLIAMS
I DIDN'T DO IT, AND HE TOLD ME THAT I DID . . . AND HE TOLD ME I WAS
LYING AGAIN.  AND HE GOT MAD AND START CUSSING.  . . . WELL, HE CALLED
ME A LITTLE BASTARD AND A FEW MORE NAMES . . . . THEN HE TOLD ME ABOUT
IF I DIDN'T CONFESS, THAT THE OFFICERS THAT WAS WANTING TO KILL ME, HE
WASN'T GOING TO STOP THEM.  . . . I TOLD HIM IF HE WOULD GET ME OUT OF
THERE AND WOULDN'T LET THEM BOTHER ME, I WOULD CONFESS." 

LATER, TWO OTHER OFFICERS GOT INTO THE BACK OF THE CAR.  ONE OF THEM
"ASKED ME HOW OLD I WAS, AND I TOLD HIM, AND HE TOLD ME I WAS OLD
ENOUGH TO DIE."  RECORD TRANSCRIPT 544. 

THERE WERE ABOUT 15 OR 20 OFFICERS AT THE SCENE, SOME OF WHOM WERE
ARMED WITH RIFLES AND SHOTGUNS.  CAPTAIN WILLIAMS TESTIFIED THAT A
"PRETTY GOOD SIZE CROWD" WAS GATHERING-- "I WOULD SAY, IN MY BEST
JUDGMENT, TWENTY-FIVE OR THIRTY CARS . . . AND PEOPLE MILLING AROUND
OUT IN THE ROAD."  RECORD TRANSCRIPT 647-648.  IT WAS UNDER THESE
CIRCUMSTANCES THAT PETITIONER FIRST ADMITTED TO CAPTAIN WILLIAMS THAT
HE HAD COMMITTED THE CRIME. 

APPARENTLY BECAUSE OF THE HOSTILE CROWD, PETITIONER WAS FINALLY
CARRIED AWAY FROM THE AREA IN A CONVOY OF THREE CARS; HE WAS TAKEN TO A
JAIL IN ANOTHER COUNTY AS A PRECAUTIONARY MEASURE.  THEREAFTER HE MADE
WHAT THE COURTS HAVE TREATED AS THE "FIRST" CONFESSION. 

THE DISTRICT COURT WAS NOT, OF COURSE, OBLIGED TO CREDIT
PETITIONER'S TESTIMONY CONCERNING THE OFFICER'S THREATS-- SOME OF
WHICH, BUT BY NO MEANS ALL, WAS CONTROVERTED BY RESPONDENT'S
WITNESSES.  BUT THE COURT DID NOT EVEN ADDRESS ITSELF TO THE
TESTIMONY.  INDEED, EXCEPT FOR THE OBLIQUE STATEMENT THAT "(THERE WAS
NO EVIDENCE . . . THAT THE PROTECTION AFFORDED BOULDEN ON THIS OCCASION
WAS INADEQUATE," 257 F.SUPP.  1013, 1014 (1966); 385 F.2D 102, 104
(1967), NEITHER OF THE COURTS BELOW ALLUDED TO, LET ALONE EXAMINED, THE
CIRCUMSTANCES OF THE FACTUAL AND LEGAL CONSEQUENCES OF THE EVENTS
OCCURRING ON THE AFTERNOON OF MAY 1, 1964.  /3/ 

WITHOUT SPECULATING AS TO THE POSSIBLE EXPLANATIONS FOR THIS
DISTURBING LACUNA IN THE OPINIONS BELOW, I WOULD BROADEN THE REMAND OF
THIS CASE SO AS TO ALLOW THE DISTRICT COURT TO CONSIDER WHETHER
PETITIONER WAS SUBJECTED TO IMPROPER COERCION ON THE AFTERNOON OF MAY
1, AND WHAT EFFECT THE EVENTS OF THAT AFTERNOON HAD ON THE
VOLUNTARINESS OF THE CONFESSION INTRODUCED INTO EVIDENCE AT
PETITIONER'S TRIAL.  SEE DARWIN V. CONNECTICUT, 391 U.S. 346 (1968);
ID., AT 350 (SEPARATE OPINION). 

/1/  THIS APPEARS NOT ONLY FROM PETITIONER'S AND RESPONDENT'S ORAL
EVIDENCE AT THE HABEAS CORPUS HEARING, BUT ALSO FROM THE TRANSCRIPT OF
THE INTERROGATION OF THE NIGHT OF MAY 1, IN WHICH CAPTAIN WILLIAMS
STATED: "BILLY, NOW YOU UNDERSTAND WHAT WE ARE DOING, WE JUST WANT TO
TALK TO YOU, WANT YOU TO TELL US THE TRUTH ABOUT EVERYTHING THAT
HAPPENED TODAY.  NOW YOU KNOW YOU TALKED WITH ME TODAY IN THE CAR AND I
JUST WANT YOU TO REPEAT IT ALL FOR LT. WATTS HERE . . . ."  APPENDIX
57. 

/2/  "THE REVIEW OF VOLUNTARINESS IN CASES IN WHICH THE TRIAL WAS
HELD PRIOR TO OUR DECISIONS IN ESCOBEDO AND MIRANDA IS NOT LIMITED IN
ANY MANNER BY THESE DECISIONS.  ON THE CONTRARY, THAT A DEFENDANT WAS
NOT ADVISED OF HIS RIGHT TO REMAIN SILENT OR OF HIS RIGHT RESPECTING
COUNSEL AT THE OUTSET OF INTERROGATION, AS IS NOW REQUIRED BY MIRANDA,
IS A SIGNIFICANT FACTOR IN CONSIDERING THE VOLUNTARINESS OF STATEMENTS
LATER MADE.  . . . THUS, THE FACT THAT DAVIS WAS NEVER EFFECTIVELY
ADVISED OF HIS RIGHTS GIVES ADDED WEIGHT TO THE OTHER CIRCUMSTANCES
DESCRIBED BELOW WHICH MADE HIS CONFESSIONS INVOLUNTARY."  DAVIS V.
NORTH CAROLINA, 384 U.S. 737, 740-741 (1966). 

IT MAY ADDITIONALLY BE NOTED THAT PETITIONER IN THE PRESENT CASE WAS
A SLIGHT, SICKLY YOUTH, WITH AN I.Q. OF 83. 

/3/  IN DISSENTING FROM THE DENIAL OF REHEARING EN BANC, JUDGE
TUTTLE, JOINED BY CHIEF JUDGE BROWN, FOCUSED ON THIS ISSUE: "IT IS
CLEAR THAT THERE WAS AN ILLEGAL INTERROGATION AND INCULPATORY STATEMENT
OBTAINED FROM THIS PRISONER IMMEDIATELY FOLLOWING THE SHOOTING AND IT
IS CLEAR BEYOND DOUBT THAT IN THE ELICITING OF THE CONFESSION
SUBSEQUENTLY ADMITTED BY THE STATE COURT AS A VALID CONFESSION, MUCH
STRESS WAS PLACED BY THE OFFICERS ON THE FACT THAT BOULDEN HAD ALREADY
CONFESSED UNDER CIRCUMSTANCES WHICH I FIND COMPLETELY IMPERMISSIBLE.  .
. . HERE, IT IS CLEAR BEYOND DOUBT THAT WHAT . HAS BEEN HELD TO BE A
LEGAL CONFESSION WAS OBTAINED BY THE OFFICERS REPEATEDLY CALLING THE
ACCUSED'S ATTENTION TO THE FACT THAT HE HAD ALREADY MADE SUFFICIENTLY
DAMAGING STATEMENTS AND THAT THEY MERELY WANTED HIM TO FILL IN THE
DETAILS."  395 F.2D 169 (1968). 

WILLIAM B. MOORE, JR., BY APPOINTMENT OF THE COURT, 393 U.S.930,
ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

DAVID W. CLARK, ASSISTANT ATTORNEY GENERAL OF ALABAMA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS MACDONALD GALLION,
ATTORNEY GENERAL. 
..END :











GREGG V. UNITED STATES, 394 U.S. 489 


       GREGG V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 453.  ARGUED FEBRUARY 25, 1969.-- DECIDED APRIL 2,

           1969. 


PETITIONER ARGUES THAT HIS CONVICTION FOR JEOPARDIZING THE LIVES OF
POSTAL CUSTODIANS WHILE ROBBING THEM SHOULD BE REVERSED BECAUSE THE
TRIAL JUDGE READ THE PRESENTENCE REPORT BEFORE THE JURY RETURNED ITS
VERDICT, IN VIOLATION OF FED. RULE CRIM. PROC. 32.  THIS CONTENTION IS
REJECTED.  THERE IS NO DIRECT EVIDENCE IN THE RECORD THAT THE TRIAL
JUDGE READ THE REPORT BEFORE THE JURY'S VERDICT WAS DELIVERED. 
MOREOVER, THERE WAS NO PREJUDICE TO PETITIONER'S RIGHTS, SINCE EVEN IF
THE JUDGE READ THE REPORT AFTER THE JURY RETIRED AND BEFORE IT RETURNED
THE VERDICT, HE COULD NOT HAVE AFFECTED THE JURY PRIOR TO THE VERDICT;
THE 25-YEAR SENTENCE WAS MANDATED BY THE STATUTE; AND THE INFORMATION
IN THE PRESENTENCE REPORT HAD BEEN REVEALED TO THE JUDGE IN AN EARLIER
PSYCHIATRIC REPORT.  PP. 491-494. 

AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

ONE AFTERNOON, PETITIONER AND ANOTHER MAN ROBBED THE POST OFFICE AT
LOUISVILLE, KENTUCKY, AT GUNPOINT.  TWO WOMEN WERE IN CHARGE OF THE
POST OFFICE, WHICH HAD JUST CLOSED, AND PETITIONER WARNED THEM:  "ONE
FALSE MOVE OUT OF YOU, I'LL BLOW YOUR BRAINS OUT."  THEY WERE THEN TIED
AND GAGGED.  A WEEK LATER A BANK IN INDIANA WAS ROBBED.  PETITIONER,
FOUND HIDING IN A MOTEL CLOSET WITH A PISTOL, AND MONEY ORDERS STOLEN
FROM THE POST OFFICE, WAS ARRESTED FOR THE BANK ROBBERY.  AFTER A ONE
DAY TRIAL AND 18 MINUTES OF JURY DELIBERATION, PETITIONER WAS CONVICTED
OF JEOPARDIZING THE LIVES OF THE POSTAL CUSTODIANS WHILE ROBBING THEM. 
/1/  THE OFFENSE CARRIES A MANDATORY SENTENCE OF 25 YEARS. 

IMMEDIATELY AFTER THE JURY RETURNED ITS VERDICT THE JURORS WERE
POLLED AND THE JUDGE, NOTING THE MANDATORY 25-YEAR SENTENCE, INVITED
PETITIONER AND HIS LAWYER TO EXERCISE THE RIGHT OF ALLOCUTION.  BOTH
ASKED THAT PETITIONER BE ALLOWED TO SPEND A FEW DAYS WITH HIS FAMILY
BEFORE COMMENCING TO SERVE THE SENTENCE.  THE JUDGE REFUSED, AND
COUNSEL FOR PETITIONER ASKED THAT A PRESENTENCE INVESTIGATION BE MADE. 
THE JUDGE INTERRUPTED: 

"A PRE-SENTENCE INVESTIGATION HAS BEEN MADE.  IT IS BEFORE ME

  NOW, AND I HAVE READ IT.  IT SHOWS A JUVENILE RECORD.  IT SHOWS

  IN 1960 THIS DEFENDANT STOLE AN AUTOMOBILE IN VIOLATION OF THE

  DYER ACT AND WAS GIVEN AN INDETERMINATE YOUTH COMMITMENT

  SENTENCE.  HE WAS PAROLED IN 1965.  HE WAS RETURNED-- NO, HE WAS

  PAROLED IN '62, RETURNED AS A PAROLE VIOLATOR IN '65 AND WAS NOT

  RELEASED FULL TIME UNTIL MAY OF LAST YEAR. 

     "I AM ALSO INFORMED THAT HE WAS CONVICTED OF ARMED ROBBERY IN

  YUMA, ARIZONA, AND GIVEN FROM SEVEN TO TEN YEARS.  SEVERAL

  WARRANTS ARE NOW PENDING AGAINST HIM FOR ROBBERY WITH WHICH HE IS

  CHARGED." 

PETITIONER SEEKS A REVERSAL OF HIS CONVICTION, ASSERTING AS HIS SOLE
SUBSTANTIAL ARGUMENT THAT THIS RECORD REVEALS THAT THE TRIAL JUDGE HAD
READ THE PRESENTENCE REPORT BEFORE THE JURY RETURNED ITS VERDICT, IN
VIOLATION OF RULE 32 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  /2/ 

RULE 32 IS EXPLICIT.  IT ASSERTS THAT THE "REPORT SHALL NOT BE
SUBMITTED TO THE COURT . . . UNLESS THE DEFENDANT HAS PLEADED GUILTY OR
HAS BEEN FOUND GUILTY."  THIS LANGUAGE CLEARLY PERMITS THE PREPARATION
OF A PRESENTENCE REPORT BEFORE GUILTY PLEA OR CONVICTION /3/  BUT IT IS
EQUALLY CLEAR THAT THE REPORT MUST NOT, UNDER ANY CIRCUMSTANCES, BE
"SUBMITTED TO THE COURT" BEFORE THE . DEFENDANT PLEADS GUILTY OR IS
CONVICTED.  SUBMISSION OF THE REPORT TO THE COURT BEFORE THAT POINT
CONSTITUTES ERROR OF THE CLEAREST KIND. 

MOREOVER, THE RULE MUST NOT BE TAKEN LIGHTLY.  PRESENTENCE REPORTS
ARE DOCUMENTS WHICH THE RULE DOES NOT MAKE AVAILABLE TO THE DEFENDANT
AS A MATTER OF RIGHT.  THERE ARE NO FORMAL LIMITATIONS ON THEIR
CONTENTS, AND THEY MAY REST ON HEARSAY AND CONTAIN INFORMATION BEARING
NO RELATION WHATEVER TO THE CRIME WITH WHICH THE DEFENDANT IS CHARGED. 
TO PERMIT THE EX PARTE INTRODUCTION OF THIS SORT OF MATERIAL TO THE
JUDGE WHO WILL PRONOUNCE THE DEFENDANT'S GUILT OR INNOCENCE OR WHO WILL
PRESIDE OVER A JURY TRIAL WOULD SERIOUSLY CONTRAVENE THE RULE'S PURPOSE
OF PREVENTING POSSIBLE PREJUDICE FROM PREMATURE SUBMISSION OF THE
PRESENTENCE REPORT.  NO TRIAL JUDGE, THEREFORE, SHOULD EXAMINE THE
REPORT WHILE THE JURY IS DELIBERATING SINCE HE MAY BE CALLED UPON TO
GIVE FURTHER INSTRUCTIONS OR ANSWER INQUIRIES FROM THE JURY, IN WHICH
EVENT THERE WOULD BE THE POSSIBILITY OF PREJUDICE WHICH RULE 32
INTENDED TO AVOID.  ALTHOUGH THE JUDGE MAY HAVE THAT INFORMATION AT HIS
DISPOSAL IN ORDER TO GIVE A DEFENDANT A SENTENCE SUITED TO HIS
PARTICULAR CHARACTER AND POTENTIAL FOR REHABILITATION, THERE IS NO
REASON FOR HIM TO SEE THE DOCUMENT UNTIL THE OCCASION TO SENTENCE
ARISES, AND UNDER THE RULE HE MUST NOT DO SO. 

HOWEVER, ON THE FACTS OF THIS CASE, IT DOES NOT EMERGE WITH
SUFFICIENT CLARITY THAT RULE 32 WAS VIOLATED, AND WE THEREFORE AFFIRM
THE JUDGMENT BELOW.  THE TRIAL JUDGE DID NOT STATE THAT HE READ THE
PRESENTENCE REPORT BEFORE THE JURY VERDICT WAS DELIVERED, NOR IS THERE
ANY DIRECT EVIDENCE IN THIS RECORD THAT HE DID.  ONLY A FEW MINUTES HAD
ELAPSED BETWEEN THE DELIVERY OF THE JURY VERDICT AND HIS STATEMENT THAT
HE HAD THE REPORT BEFORE HIM AND HAD READ IT.  BUT ONLY A VERY SHORT
TIME WAS NEEDED TO READ THE WELL-ORGANIZED FIVE-PAGE REPORT, WHICH WAS
LARGELY IN WIDELY SPACED TABULAR FORM.  IT IS ENTIRELY POSSIBLE THAT
THE PRACTICE WAS FOLLOWED OF HANDING THE REPORT FROM THE PROBATION
OFFICER TO THE COURT JUST AS THE JURY'S VERDICT WAS DELIVERED. 

WE ALSO TAKE NOTE OF THE VERY SPECIAL CIRCUMSTANCES APPEARING IN
THIS CASE.  EVEN IF THIS RECORD REVEALED THAT THE JUDGE HAD READ THE
PRESENTENCE REPORT AFTER THE JURY RETIRED AND BEFORE THE RETURN OF THE
VERDICT, THE JUDGE COULD NOT HAVE INFECTED THE JURY WITH ANYTHING HE
LEARNED FROM THE REPORT SINCE THERE WAS NO NECESSITY OR OCCASION FOR
COMMUNICATING WITH THE JURY ONCE IT BEGAN ITS DELIBERATIONS, AND THE
JURY DELIVERED ITS VERDICT IMMEDIATELY UPON EMERGING FROM SECLUSION. 
MOREOVER, THE JUDGE HAD NO DISCRETION WHATEVER IN SENTENCING SINCE THE
STATUTE PRESCRIBED A 25-YEAR SENTENCE; AND THE ONLY QUESTION BEFORE HIM
WAS WHETHER PETITIONER SHOULD BE PUT ON PROBATION.  ASIDE FROM THE
INFORMATION ABOUT THIS PARTICULAR CRIME WHICH WAS DEVELOPED AT TRIAL,
THE JUDGE HAD HAD OCCASION TO STUDY A COMPREHENSIVE PSYCHIATRIC REPORT
ON PETITIONER IN DETERMINING HIS COMPETENCE TO STAND TRIAL.  EVERY ITEM
OF INFORMATION TO WHICH THE TRIAL JUDGE ADVERTED IN SENTENCING HAD BEEN
REVEALED TO HIM IN THE PSYCHIATRIC REPORT.  MOREOVER, THE PSYCHIATRIC
REPORT WAS THREE TIMES AS LONG AS THE PRESENTENCE REPORT, WHICH WAS IN
EVERY MATERIAL RESPECT A CONDENSATION OF THE PSYCHIATRIC REPORT.  IT
MUST HAVE BEEN APPARENT AT A GLANCE TO THE TRIAL JUDGE THAT THE
PRESENTENCE REPORT CONTAINED NO NEW INFORMATION, AND HIS DECISION TO
REFUSE PROBATION WAS AMPLY SUPPORTED BY WHAT HE HAD HEARD AT TRIAL AND
READ IN THE PSYCHIATRIC REPORT ALONE.  SINCE THE BRIEF PRESENTENCE
REPORT CAME TO THE SAME CONCLUSION ON THE BASIS OF FAR LESS DETAILED
INFORMATION THAN THE JUDGE ALREADY HAD AT HIS DISPOSAL, THERE WAS NO
OCCASION TO STUDY IT. 

WE ARE UNABLE TO CONCLUDE FROM THIS RECORD EITHER THAT THE
PRESENTENCE REPORT WAS SUBMITTED TO THE COURT BEFORE THE VERDICT WAS
DELIVERED, THUS VIOLATING THE LETTER OF THE RULE, OR THAT THE HANDLING
OF THE PRESENTENCE REPORT RAISED ANY POSSIBILITY OF PREJUDICE TO
PETITIONER'S RIGHTS UNDER RULE 32. 

FOR THESE REASONS, THE JUDGMENT IS

              AFFIRMED. 

/1/  "WHOEVER ASSAULTS ANY PERSON HAVING LAWFUL CHARGE, CONTROL, OR
CUSTODY OF ANY MAIL MATTER OR OF ANY MONEY OR OTHER PROPERTY OF THE
UNITED STATES, WITH INTENT TO ROB, STEAL, OR PURLOIN SUCH MAIL MATTER,
MONEY, OR OTHER PROPERTY OF THE UNITED STATES, OR ROBS ANY SUCH PERSON
OF MAIL MATTER, OR OF ANY MONEY, OR OTHER PROPERTY OF THE UNITED
STATES, SHALL, FOR THE FIRST OFFENSE, BE IMPRISONED NOT MORE THAN TEN
YEARS; AND IF IN EFFECTING OR ATTEMPTING TO EFFECT SUCH ROBBERY HE
WOUNDS THE PERSON HAVING CUSTODY OF SUCH MAIL, MONEY, OR OTHER PROPERTY
OF THE UNITED STATES, OR PUTS HIS LIFE IN JEOPARDY BY THE USE OF A
DANGEROUS WEAPON, OR FOR A SUBSEQUENT OFFENSE, SHALL BE IMPRISONED
TWENTY-FIVE YEARS."  18 U.S.C. 2114. 

/2/  "(A) SENTENCE. 

"(1) IMPOSITION OF SENTENCE.  SENTENCE SHALL BE IMPOSED WITHOUT
UNREASONABLE DELAY.  . . .

        .          .          .          . 

"(C) PRESENTENCE INVESTIGATION. 

"(1) WHEN MADE.  THE PROBATION SERVICE OF THE COURT SHALL MAKE A
PRESENTENCE INVESTIGATION AND REPORT TO THE COURT BEFORE THE IMPOSITION
OF SENTENCE OR THE GRANTING OF PROBATION UNLESS THE COURT OTHERWISE
DIRECTS.  THE REPORT SHALL NOT BE SUBMITTED TO THE COURT OR ITS
CONTENTS DISCLOSED TO ANYONE UNLESS THE DEFENDANT HAS PLEADED GUILTY OR
HAS BEEN FOUND GUILTY. 

"(2) REPORT.  THE REPORT OF THE PRESENTENCE INVESTIGATION SHALL
CONTAIN ANY PRIOR CRIMINAL RECORD OF THE DEFENDANT AND SUCH INFORMATION
ABOUT HIS CHARACTERISTICS, HIS FINANCIAL CONDITION AND THE
CIRCUMSTANCES AFFECTING HIS BEHAVIOR AS MAY BE HELPFUL IN IMPOSING
SENTENCE OR IN GRANTING PROBATION OR IN THE CORRECTIONAL TREATMENT OF
THE DEFENDANT, AND SUCH OTHER INFORMATION AS MAY BE REQUIRED BY THE
COURT.  THE COURT BEFORE IMPOSING SENTENCE MAY DISCLOSE TO THE
DEFENDANT OR HIS COUNSEL ALL OR PART OF THE MATERIAL CONTAINED IN THE
REPORT OF THE PRESENTENCE INVESTIGATION AND AFFORD AN OPPORTUNITY TO
THE DEFENDANT OR HIS COUNSEL TO COMMENT THEREON.  ANY MATERIAL
DISCLOSED TO THE DEFENDANT OR HIS COUNSEL SHALL ALSO BE DISCLOSED TO
THE ATTORNEY FOR THE GOVERNMENT." 

        .      .          .          . 

/3/  THE HISTORY OF THE RULE CONFIRMS THIS INTERPRETATION.  THE
FIRST PRELIMINARY DRAFT OF THE RULE WOULD HAVE REQUIRED THE CONSENT OF
THE DEFENDANT OR HIS ATTORNEY TO COMMENCE THE INVESTIGATION BEFORE THE
DETERMINATION OF GUILT.  ADVISORY COMMITTEE ON RULES OF CRIMINAL
PROCEDURE, FED. RULES CRIM. PROC., PRELIMINARY DRAFT 130, 133 (1943). 
THE SECOND PRELIMINARY DRAFT OMITTED THIS REQUIREMENT AND IMPOSED NO
LIMITATION ON THE TIME WHEN THE REPORT COULD BE MADE AND SUBMITTED TO
THE COURT.  ADVISORY COMMITTEE ON RULES OF CRIMINAL PROCEDURE, FED.
RULES CRIM. PROC., SECOND PRELIMINARY DRAFT 126-128 (1944).  THE THIRD
AND FINAL DRAFT, WHICH WAS ADOPTED AS RULE 32, WAS EVIDENTLY A
COMPROMISE BETWEEN THOSE WHO OPPOSED ANY TIME LIMITATION, AND THOSE WHO
PREFERRED THAT THE ENTIRE INVESTIGATION BE CONDUCTED AFTER
DETERMINATION OF GUILT.  SEE 5 L.ORFIELD, CRIMINAL PROCEDURE UNDER THE
FEDERAL RULES 32.2 (1967). 

DEAN E. RICHARDS, BY APPOINTMENT OF THE COURT, 393 U.S. 1010, ARGUED
THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WERE JAMES MANAHAN
AND PALMER K. WARD. 

SIDNEY M. GLAZER ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WILSON, PETER L. STRAUSS, AND BEATRICE ROSENBERG. 
..END :












MARINE TERMINALS V. SHIPPING CO., 394 U.S. 404 


       FEDERAL MARINE TERMINALS, INC. V. BURNSIDE SHIPPING CO.,

           LTD.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT. 

        NO. 291.  ARGUED JANUARY 15, 1969.-- DECIDED APRIL 1,
1969. 


PETITIONER, MARINE TERMINALS, WAS HIRED BY ITS AFFILIATE, THE TIME
CHARTERER OF RESPONDENT'S SHIP, TO CONTINUE READYING THE VESSEL, THEN
IN CHICAGO, FOR ITS GRAIN CARGO.  WHILE THAT OPERATION (WHICH THE
SHIP'S CREW HAD BEGUN) WAS IN PROGRESS, ONE OF PETITIONER'S EMPLOYEES
WAS KILLED BY FALLING INTO AN UNPROTECTED DEEP TANK OPENING.  THE
EMPLOYEE'S WIDOW FILED A CLAIM UNDER THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT, AND COMPENSATION WAS AWARDED AGAINST
PETITIONER FOR WEEKLY PAYMENTS, THE POTENTIAL TOTAL LIABILITY FOR WHICH
IS ABOUT $70,000.  AS ADMINISTRATRIX OF THE ESTATE THE WIDOW ALSO FILED
A WRONGFUL DEATH ACTION AGAINST RESPONDENT IN THE DISTRICT COURT, UNDER
AN ILLINOIS STATUTE WHICH THEN LIMITED THE AMOUNT RECOVERABLE TO
$30,000.  RESPONDENT SUED MARINE TERMINALS FOR INDEMNIFICATION FOR ANY
JUDGMENT IT MIGHT BE REQUIRED TO PAY IN THE WRONGFUL DEATH ACTION,
CHARGING THAT PETITIONER'S NEGLIGENCE HAD BREACHED ITS WARRANTY THAT
SERVICES TO THE VESSEL WOULD BE PERFORMED "IN A SAFE, WORKMANLIKE AND
SEAMANLIKE MANNER," AND GAVE RISE TO AN OBLIGATION TO SAVE RESPONDENT
HARMLESS FROM LIABILITY OCCASIONED BY THE EMPLOYEE'S DEATH.  PETITIONER
COUNTERCLAIMED FOR COMPENSATION BENEFITS PAID OR TO BE PAID TO THE
EMPLOYEE'S DEPENDENTS, ALLEGING THAT RESPONDENT OWED PETITIONER AS
STEVEDORING CONTRACTOR, "THE DUTY OF PROVIDING AND MAINTAINING A SAFE
PLACE TO WORK" WHICH RESPONDENT ALLEGEDLY BREACHED BY FAILING TO
PROTECT THE DEEP TANK OPENING.  THE DISTRICT COURT GRANTED RESPONDENT'S
MOTION TO DISMISS PETITIONER'S COUNTERCLAIM.  THOUGH IT RECOGNIZED THE
AVAILABILITY AT COMMON LAW IN CERTAIN SITUATIONS OF A DIRECT RIGHT
OVER, THE COURT CONCLUDED THAT PETITIONER'S SOLE REMEDY IS UNDER SEC.
33 OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, WHICH
PROVIDES THAT AN EMPLOYER PAYING COMPENSATION BENEFITS TO A DECEASED
EMPLOYEE'S REPRESENTATIVE MAY BE SUBROGATED TO THE RIGHTS OF THE
REPRESENTATIVE AGAINST THIRD PERSONS.  THE COURT OF APPEALS, HOLDING
THE STATUTORY REMEDY IN ANY EVENT EXCLUSIVE, AFFIRMED.  HELD: 

1.  NOTHING ON THE FACE OF SEC. 33 OF THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT OR IN THE ACT'S LEGISLATIVE HISTORY LIMITS
THE EMPLOYER'S REMEDY AGAINST THIRD PERSONS TO SUBROGATION TO THE
RIGHTS OF THE DECEASED EMPLOYEE'S REPRESENTATIVE.  PP. 412-414. 

2.  FEDERAL MARITIME LAW IMPOSES ON THE SHIPOWNER A DUTY TO THE
STEVEDORING CONTRACTOR OF DUE CARE UNDER THE CIRCUMSTANCES AND
RECOGNIZES A DIRECT TORT ACTION AGAINST THE SHIPOWNER TO RECOVER THE
AMOUNT OF COMPENSATION PAYMENTS OCCASIONED BY THE SHIPOWNER'S
NEGLIGENCE.  PP. 414-418. 

3.  DIRECT ACTION OTHERWISE THAN IN TORT BY THE STEVEDORING
CONTRACTOR AGAINST THE SHIPOWNER MAY ALSO BE AVAILABLE.  PP. 418-422. 
392 F.2D 918, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

UNDER SEC. 33 OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT, /1/  AN EMPLOYER WHO PAYS COMPENSATION BENEFITS TO THE
REPRESENTATIVE OF A DECEASED EMPLOYEE MAY BE SUBROGATED TO THE RIGHTS
OF THE REPRESENTATIVE AGAINST THIRD PERSONS.  /2/  THE QUESTION
PRESENTED BY THIS CASE IS WHETHER A STEVEDORING CONTRACTOR WHOSE
LONGSHOREMAN EMPLOYEE WAS KILLED IN THE COURSE OF HIS EMPLOYMENT IS
LIMITED TO THIS SUBROGATION REMEDY IN SEEKING REIMBURSEMENT FROM A
SHIPOWNER ON WHOSE VESSEL THE LONGSHOREMAN MET HIS DEATH.  BOTH THE
DISTRICT COURT /3/  AND THE COURT OF APPEALS /4/  HELD THAT STATUTORY
SUBROGATION IS THE STEVEDORING CONTRACTOR'S EXCLUSIVE REMEDY AGAINST
THE SHIPOWNER, AND WE GRANTED CERTIORARI TO CONSIDER THIS NOVEL
QUESTION UNDER THE ACT.  /5/

        I. 

ACCORDING TO THE STIPULATION OF FACTS, THE M/V OTTERBURN, OWNED AND
OPERATED BY RESPONDENT BURNSIDE SHIPPING CO., WAS UNDER TIME CHARTER TO
FEDERAL COMMERCE AND NAVIGATION CO., A CANADIAN CORPORATION AFFILIATED
WITH THE PETITIONER, FEDERAL MARINE TERMINALS, INC. FEDERAL COMMERCE
HIRED MARINE TERMINALS TO CONTINUE THE OPERATION, ALREADY COMMENCED BY
THE SHIP'S CREW, OF PREPARING THE VESSEL TO RECEIVE A CARGO OF GRAIN. 
WHILE THE SHIP WAS DOCKED IN DETROIT, THE CREW HAD COMMENCED
INSTALLATION OF "GRAIN FEEDERS"-- WALLED-IN STRUCTURES ERECTED IN THE
'TWEEN DECK HATCHES TO THE HEIGHT OF THE MAIN DECK HATCH.  AFTER MARINE
TERMINALS HAD BEEN EMPLOYED TO CONTINUE THE WORK OF READYING THE SHIP
FOR ITS CARGO, THE BOATSWAIN, ACTING ON THE INSTRUCTIONS OF THE SHIP'S
CHIEF OFFICER, "WINGED OUT" THE DEEP TANK LIDS-- THAT IS, PULLED THEM
OUTBOARD INTO THE WINGS OF THE 'TWEEN DECK.  NO RAILING, WIRE, OR GUARD
OF ANY KIND WAS PLACED AROUND THE RESULTING DEEP TANK OPENINGS. 

MARINE TERMINALS' EMPLOYEES BEGAN WORKING ON THE OTTERBURN AFTER IT
HAD BEEN REMOVED TO CHICAGO.  ON THE MORNING OF THE THIRD DAY OF WORK,
A GROUP OF MARINE TERMINALS' STEVEDORES, SUPERVISED BY GORDON MCNEILL,
ARRIVED AT APPROXIMATELY 7 O'CLOCK TO CONTINUE WITH CARPENTRY WORK IN
THE 'TWEEN DECK AS PART OF THE LAST STAGES OF COMPLETING A GRAIN FEEDER
IN THE AREA OF THE "WINGED OUT" DEEP TANK LIDS.  MCNEILL WAS LAST SEEN
ALIVE SHORTLY AFTER 8 A.M.  AT 8:45 HIS LIFELESS BODY WAS DISCOVERED
LYING AT THE BOTTOM OF ONE OF THE DEEP TANKS.  THERE WERE NO WITNESSES
TO HIS 30-FOOT FALL. 

MCNEILL'S WIDOW FILED A CLAIM FOR BENEFITS UNDER THE ACT FOR HERSELF
AND THREE MINOR CHILDREN, AND THE DEPARTMENT OF LABOR ENTERED A
COMPENSATION ORDER FOR WEEKLY PAYMENTS OF $36.75 TO THE WIDOW AND
$33.25 TO THE CHILDREN.  THE POTENTIAL TOTAL LIABILITY OF MARINE
TERMINALS FOR THESE PAYMENTS IS APPROXIMATELY $70,000.  AS
ADMINISTRATRIX OF MCNEILL'S ESTATE, HIS WIDOW ALSO FILED A MARITIME
WRONGFUL DEATH ACTION AGAINST BURNSIDE SHIPPING CO. IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS.  BURNSIDE
ANSWERED THE COMPLAINT, DENYING THAT MCNEILL'S DEATH HAD BEEN CAUSED BY
ITS NEGLIGENCE OR BY ITS FAILURE TO FURNISH A SEAWORTHY VESSEL. 

BURNSIDE ALSO COMMENCED A SEPARATE ACTION IN THE SAME COURT AGAINST
MARINE TERMINALS SEEKING INDEMNIFICATION FOR ANY JUDGMENT IT MIGHT BE
REQUIRED TO PAY IN THE WRONGFUL DEATH ACTION.  THE LIBEL CHARGED THAT,
BY VIRTUE OF THE AGREEMENT WITH THE TIME CHARTERER TO PREPARE THE SHIP
FOR ITS CARGO, MARINE TERMINALS "WARRANTED THAT ITS SERVICES TO THE
VESSEL WOULD BE PERFORMED IN A SAFE, WORKMANLIKE AND SEAMANLIKE
MANNER."  THAT WARRANTY WAS ALLEGED TO HAVE BEEN BREACHED AND THE
ACCIDENT CAUSED BY MARINE TERMINALS' NEGLIGENCE, GIVING RISE TO AN
OBLIGATION TO SAVE BURNSIDE HARMLESS FROM ALL LIABILITY AND EXPENSE
OCCASIONED BY MCNEILL'S DEATH. 

MARINE TERMINALS FILED AN ANSWER DENYING MOST OF THE ALLEGATIONS OF
THE LIBEL, AND ALSO FILED A COUNTERCLAIM SEEKING DAMAGES FROM BURNSIDE
FOR "ALL SUMS WHICH HAVE BEEN PAID OR WILL BE PAID" AS COMPENSATION
BENEFITS TO MCNEILL'S DEPENDENTS.  THE COUNTERCLAIM ALLEGED THAT
BURNSIDE, AS OWNER AND OPERATOR IN CONTROL OF THE OTTERBURN, OWED THE
STEVEDORING CONTRACTOR "THE DUTY OF PROVIDING AND MAINTAINING A SAFE
PLACE TO WORK SO THAT INJURY TO THE EMPLOYEES . . . WOULD BE AVOIDED." 
BURNSIDE HAD VIOLATED THAT DUTY, ACCORDING TO THE COUNTERCLAIM, BY ITS
NEGLIGENCE. 

"IN FAILING TO PROPERLY GUARD THE DEEP TANK OPENING, OR MAKE THE
PASSAGEWAY SECURE, OR TO COVER UP THE SAID DEEP TANK, AND IN FAILING TO
CLEAR THE PASSAGEWAYS, AND FAILING TO PROVIDE ADEQUATE LIGHTING IN THE
AREA OR TO PROVIDE A SAFETY RAILING AROUND THE DEEP TANK OPENING,
THEREBY CAUSING, SUFFERING AND PERMITTING THE AREA AND OPEN DEEP TANK
TO BE A SOURCE OF MENACE AND DANGER."  BURNSIDE MOVED TO DISMISS THE
COUNTERCLAIM FOR FAILURE TO STATE A CAUSE OF ACTION.  EACH PARTY THEN
FILED A MOTION FOR SUMMARY JUDGMENT ON ITS CLAIM AND COUNTERCLAIM. 

THE DISTRICT COURT, FINDING THAT MATERIAL FACTUAL DISPUTES EXISTED
CONCERNING THE CONDUCT OF BOTH PARTIES, DENIED BURNSIDE'S MOTION FOR
SUMMARY JUDGMENT ON ITS COMPLAINT.  /6/  BUT IT DID GRANT THE MOTION TO
DISMISS MARINE TERMINALS' COUNTERCLAIM.  THE COURT NOTED MARINE
TERMINALS' CONCESSION THAT ITS THEORY OF A DIRECT ACTION AGAINST THE
SHIPOWNER WAS NOVEL.  NORMALLY THE STEVEDORING CONTRACTOR IS CONTENT
WITH ITS REMEDY OF SUBROGATION TO THE RIGHTS OF THE DECEASED
LONGSHOREMAN'S REPRESENTATIVE AGAINST WHATEVER THIRD PARTY MAY BE
LIABLE FOR THE DEATH, USUALLY THE SHIPOWNER.  IN THIS CASE, HOWEVER,
THE APPLICABLE ILLINOIS WRONGFUL DEATH ACT LIMITED THE AMOUNT
RECOVERABLE BY THE DECEDENT'S REPRESENTATIVE TO $30,000, /7/  FAR SHORT
OF MARINE TERMINALS' POTENTIAL LIABILITY OF $70,000.  THE COURT
RECOGNIZED THAT "THE EXISTENCE OF SUCH A DIRECT RIGHT OVER IS WELL
ESTABLISHED IN CERTAIN SITUATIONS,"  /8/  BUT CONCLUDED THAT THE
EMPLOYER'S RIGHTS PROVIDED BY THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT ARE EXCLUSIVE AND "PREVENT HIM FROM MAINTAINING AN
INDEPENDENT CAUSE OF ACTION AGAINST THE THIRD PARTY TORTFEASOR."  /9/ 

THE COURT OF APPEALS AFFIRMED, AGREEING THAT MARINE TERMINALS' SOLE
REMEDY IS BY SUBROGATION UNDER THE ACT.  BUT WHILE THE DISTRICT COURT
HAD IMPLIED THAT THE STEVEDORING CONTRACTOR WOULD HAVE HAD A DIRECT
ACTION HAD IT NOT BEEN ABROGATED BY THE ACT, THE COURT OF APPEALS
APPEARED TO ASSUME THAT, IN THE ABSENCE OF THE STATUTORY REMEDY,
FEDERAL MARITIME LAW WOULD PERMIT NO DIRECT RECOVERY FROM THE
SHIPOWNER: 

"THERE IS NO COMMON LAW DIRECT ACTION AS THE DEFENDANT ARGUES. 

  THERE IS ONLY THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION

  ACT WHICH CREATES AN ENTIRE LEGAL PROCEDURE IN THIS PART OF

  ADMIRALTY LAW.  WE CANNOT SEARCH OUTSIDE OF THE ACT FOR COMMON

  LAW REMEDIES WHICH DO NOT EXIST.  THE ACT IS THE SOURCE OF ALL

  REMEDIES."  /10/

THIS CASE THUS PRESENTS TWO QUESTIONS.  FIRST, DOES SEC. 33 OF THE ACT
EXCLUDE WHATEVER OTHER RIGHTS OF ACTION THE STEVEDORING CONTRACTOR
MIGHT HAVE AGAINST THE SHIPOWNER FOR COMPENSATION PAYMENTS TO AN
EMPLOYEE OR HIS REPRESENTATIVE?  SECOND, IF STATUTORY SUBROGATION IS
NOT AN EXCLUSIVE REMEDY, DOES THE SHIPOWNER OWE THE STEVEDORING
CONTRACTOR ANY DUTY WHOSE BREACH WILL GIVE RISE TO A DIRECT ACTION?  WE
CONSIDER THESE QUESTIONS IN ORDER BELOW. 

        II. 

THE COURT OF APPEALS WAS CLEARLY MISTAKEN IN ITS ASSERTION THAT "THE
STATUTORY METHOD PROVIDES THAT THE (STEVEDORING CONTRACTOR) CAN SUE
ONLY AS A SUBROGEE."  /11/ NOTHING ON THE FACE OF SEC. 33 OF THE ACT
PURPORTS TO LIMIT THE EMPLOYER'S REMEDY AGAINST THIRD PERSONS TO
SUBROGATION TO THE RIGHTS OF THE DECEASED EMPLOYEE'S REPRESENTATIVE. 
THE PROVISION OF SEC. 33 THAT THE EMPLOYER'S PAYMENT OF COMPENSATION
"SHALL OPERATE AS AN ASSIGNMENT TO THE EMPLOYER OF ALL RIGHT OF THE
LEGAL REPRESENTATIVE OF THE DECEASED . . . TO RECOVER DAMAGES AGAINST
SUCH THIRD PERSON" CONTAINS NO WORDS OF LIMITATION.  CONGRESS THEREBY
GAVE THE EMPLOYER, IN RETURN FOR HIS ABSOLUTE LIABILITY TO THE
EMPLOYEE'S REPRESENTATIVE, PART OF THE LATTER'S RIGHTS AGAINST OTHERS. 
BUT THE LEGISLATIVE GRANT OF A NEW RIGHT DOES NOT ORDINARILY CUT OFF OR
PRECLUDE OTHER NONSTATUTORY RIGHTS IN THE ABSENCE OF CLEAR LANGUAGE TO
THAT EFFECT.  WHEN CONGRESS IMPOSED ON THE EMPLOYER ABSOLUTE LIABILITY
FOR COMPENSATION, IT EXPLICITLY MADE THAT LIABILITY EXCLUSIVE.  /12/
YET IN THE SAME ACT IT ATTACHED NO SUCH EXCLUSIVITY TO THE EMPLOYER'S
ACTION AGAINST THIRD PERSONS AS SUBROGEE TO THE RIGHTS OF THE EMPLOYEE
OR HIS REPRESENTATIVE. 

NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT REMOTELY SUPPORTS THE
CONSTRUCTION ADOPTED BY THE COURTS BELOW.  AND WE CAN PERCEIVE NO
REASON WHY CONGRESS WOULD HAVE INTENDED SO TO CURTAIL THE STEVEDORING
CONTRACTOR'S RIGHTS AGAINST THE SHIPOWNER.  THE EXCLUSIVITY OF THE
STATUTORY COMPENSATION REMEDY AGAINST THE EMPLOYER WAS DESIGNED TO
COUNTERBALANCE THE IMPOSITION OF ABSOLUTE LIABILITY; THERE IS NO
COMPARABLE QUID PRO QUO IN THE RELATIONSHIP BETWEEN THE EMPLOYER AND
THIRD PERSONS.  ON THE CONTRARY, AS WE EMPHASIZED IN RYAN STEVEDORING
CO. V. PAN-ATLANTIC S.S. CORP., 350 U.S. 124, THE ACT IS CONCERNED ONLY
WITH THE RIGHTS AND OBLIGATIONS AS BETWEEN THE STEVEDORING CONTRACTOR
AND THE EMPLOYEE OR HIS REPRESENTATIVE.  IT DOES NOT AFFECT INDEPENDENT
RELATIONSHIPS BETWEEN THE STEVEDORING CONTRACTOR AND THE SHIPOWNER. 
NEITHER THIS COURT /13/  NOR, BEFORE THIS CASE, ANY OTHER COURT /14/
HAS HELD THAT STATUTORY SUBROGATION IS THE EMPLOYER'S EXCLUSIVE REMEDY
AGAINST THIRD PARTY WRONGDOERS, AND WE DECLINE TO SO HOLD TODAY. 

     III. 

WE MUST ALSO REJECT THE IMPLICATION OF THE COURT OF APPEALS' OPINION
THAT UNDER FEDERAL MARITIME LAW THE SHIPOWNER OWED THE STEVEDORING
CONTRACTOR NO DUTIES WHOSE BREACH WOULD GIVE RISE TO A DIRECT ACTION
FOR DAMAGES.  AS WE HELD IN KERMAREC V. COMPAGNIE GENERALE
TRANSATLANTIQUE, 358 U.S. 625, 632, "THE OWNER OF A SHIP IN NAVIGABLE
WATERS OWES TO ALL WHO ARE ON BOARD FOR PURPOSES NOT INIMICAL TO HIS
LEGITIMATE INTERESTS THE DUTY OF EXERCISING REASONABLE CARE UNDER THE
CIRCUMSTANCES OF EACH CASE."  THAT DUTY OF DUE CARE IMPOSED BY LAW
EXTENDS TO THE STEVEDORING COMPANY AS WELL AS TO OTHERS LAWFULLY ON THE
SHIP, AND ITS BREACH GIVES RISE TO A CAUSE OF ACTION FOR ANY DAMAGES
PROXIMATELY CAUSED.  IT IS NOT DISPUTED, FOR EXAMPLE, THAT IF THE
SHIPOWNER'S NEGLIGENCE CAUSED DAMAGES TO THE STEVEDORING CONTRACTOR'S
EQUIPMENT, THOSE DAMAGES WOULD BE RECOVERABLE IN A DIRECT ACTION
SOUNDING IN TORT.  WE CAN SEE NO REASON WHY THE SHIPOWNER'S LIABILITY
DOES NOT IN LIKE FASHION EXTEND TO THE FORESEEABLE OBLIGATIONS OF THE
STEVEDORING CONTRACTOR FOR COMPENSATION PAYMENTS TO THE REPRESENTATIVE
OF A LONGSHOREMAN WHOSE DEATH WAS OCCASIONED BY THE SHIPOWNER'S BREACH
OF HIS DUTY TO THE STEVEDORING CONTRACTOR. 

WE DO NOT, OF COURSE, HOLD THAT THE SHIPOWNER'S DUTY TO THE EMPLOYER
IS THE SAME AS TO THE EMPLOYEE.  NOR DO WE DISAPPROVE THE COURT OF
APPEALS' HOLDING THAT THE SHIPOWNER DOES NOT OWE TO THE STEVEDORING
CONTRACTOR THE ABSOLUTE DUTY OF SEAWORTHINESS OWED TO INDIVIDUAL
LONGSHOREMEN.  /15/  BUT MARINE TERMINALS' COUNTERCLAIM IN THIS ACTION
DID NOT RELY ON THE UNSEAWORTHINESS OF THE SHIP.  RATHER IT CHARGED
THAT BURNSIDE HAD BEEN NEGLIGENT IN CERTAIN PARTICULAR RESPECTS.  /16/
AND WE HAVE SUGGESTED BEFORE THIS THAT, WHILE "THE DUTIES OWING FROM
(THE SHIPOWNER) TO (THE LONGSHOREMEN) WERE NOT IDENTICAL WITH THOSE
FROM (THE SHIPOWNER) TO (THE STEVEDORING CONTRACTOR,)" THE SHIPOWNER
CAN BE NEGLIGENT WITH RESPECT TO THE STEVEDORING CONTRACTOR AS WELL AS
TO THE LONGSHOREMAN.  WEYERHAEUSER S.S. CO. V. NACIREMA OPERATING CO.,
355 U.S. 563, 568.  /17/  NEITHER COURT BELOW REACHED THE QUESTION
WHETHER THE COUNTERCLAIM SUFFICIENTLY ALLEGED A BREACH OF THE DUTIES
OWED BY BURNSIDE TO MARINE TERMINALS, AND RELEVANT FACTUAL QUESTIONS
REMAIN UNRESOLVED.  WITH THE CASE IN ITS PRESENT POSTURE, THEREFORE, WE
EXPRESS NO OPINION AS TO WHETHER THE CONDUCT OF BURNSIDE'S EMPLOYEES
AMOUNTED TO A BREACH OF THE DUTY IT OWED TO MARINE TERMINALS.  /18/  WE
HOLD ONLY THAT FEDERAL MARITIME LAW DOES IMPOSE ON THE SHIPOWNER A DUTY
TO THE STEVEDORING CONTRACTOR OF DUE CARE UNDER THE CIRCUMSTANCES, AND
DOES RECOGNIZE A DIRECT ACTION IN TORT AGAINST THE SHIPOWNER TO RECOVER
THE AMOUNT OF COMPENSATION PAYMENTS OCCASIONED BY THE LATTER'S
NEGLIGENCE. 

THIS HOLDING IS IN NO WISE A DEPARTURE FROM OUR DECISION IN HALCYON
LINES V. HAENN SHIP CEILING & REFITTING CORP., 342 U.S. 282, 285, THAT
WE WOULD NOT "FASHION NEW JUDICIAL RULES OF CONTRIBUTION" BETWEEN THE
SHIPOWNER AND THE STEVEDORING CONTRACTOR AS JOINT TORTFEASORS.  MARINE
TERMINALS IS NOT SEEKING CONTRIBUTION.  IT IS NOT ASKING BURNSIDE TO
SHARE RESPONSIBILITY FOR THEIR JOINT NEGLIGENCE WITH RESPECT TO
MCNEILL.  RATHER THE COUNTER-CLAIM SEEKS RECOVERY OF THE FULL AMOUNT OF
MARINE TERMINALS' LIABILITY UNDER THE ACT TO MCNEILL'S REPRESENTATIVE;
AND IT IS FOUNDED NOT ON BURNSIDE'S WRONG TO MCNEILL BUT ON ITS
INDEPENDENT WRONG TO MARINE TERMINALS. 

WE FURTHER NOTE THAT AT THIS STAGE OF THE CASE IT MUST BE ASSUMED
THAT MARINE TERMINALS WAS FAULTLESS VIS-A-VIS BURNSIDE, FOR THE CLAIMS
THAT MARINE TERMINALS BREACHED ITS RYAN WARRANT Y OF WORKMANLIKE
SERVICE HAS NOT YET BEEN ADJUDICATED AND IS NOT BEFORE US.  WE DECIDE
NOTHING TODAY WITH RESPECT TO THE INTERACTION BETWEEN THE SHIPOWNER'S
BREACH OF WARRANTY CLAIM AND THE STEVEDORING CONTRACTOR'S TORT CLAIM. 
MARINE TERMINALS HAS CHARGED BURNSIDE WITH NEGLIGENCE NOT AS A DEFENSE
TO THE LATTER'S RYAN CLAIM BUT IN A COUNTERCLAIM FOR DAMAGES, AND WE
HAVE CONSIDERED THAT CLAIM WITHOUT REGARD TO THE IMPLICATIONS OF THE
SHIPOWNER'S COUNTERVAILING CAUSE OF ACTION.  OUR HOLDING IS PERFORCE
LIMITED TO A REJECTION OF BURNSIDE'S ARGUMENT THAT "A SHIPOWNER'S
TORTIOUS CONDUCT MAY BE USED AS A SHIELD, BUT NOT AS A SWORD." 
IV.     IN HOLDING THAT THE STEVEDORING CONTRACTOR HAS A DIRECT
ACTION IN TORT, WE DO NOT PRECLUDE THE POSSIBILITY OF A DIRECT ACTION
UNDER SOME OTHER THEORY.  MARINE TERMINALS ARGUES IN THIS CASE, FOR
EXAMPLE, THAT JUST AS A STEVEDORING CONTRACTOR IMPLIEDLY WARRANTS TO A
SHIPOWNER UNDER RYAN THAT IT WILL PERFORM THE STEVEDORING SERVICES IN A
WORKMANLIKE MANNER, SO ALSO THERE ARE RECIPROCAL CONTRACTUAL WARRANTIES
RUNNING FROM THE SHIPOWNER TO THE STEVEDORING CONTRACTOR.  /19/
BURNSIDE COUNTERS WITH THE OBSERVATION THAT THE STEVEDORING CONTRACT IN
THIS CASE IS BETWEEN MARINE TERMINALS AND ITS AFFILIATE FEDERAL
COMMERCE, THE TIME CHARTERER, AND THAT THERE IS THEREFORE NO PRIVITY OF
CONTRACT BETWEEN MARINE TERMINALS AND BURNSIDE.  BECAUSE THE RECORD
BEFORE US CONTAINS NEITHER THE CONTRACT FOR STEVEDORING SERVICES NOR
THE CHARTER AGREEMENT, WE CANNOT NOW ASSESS THESE ARGUMENTS.  WE DO NOT
KNOW, FOR INSTANCE, WHETHER ANY PROVISIONS OF THE TIME CHARTER CONTAIN
EXPRESS OR IMPLIED WARRANTIES WHICH WOULD INURE TO THE BENEFIT OF
MARINE TERMINALS AS STEVEDORING CONTRACTOR.  /20/ 

MARINE TERMINALS HAS ALSO ARGUED THAT, ASIDE FROM ANY EXPRESS OR
IMPLIED-IN-FACT CONTRACT, IT HAS A QUASI-CONTRACTUAL RIGHT OF INDEMNITY
FOR THE LIABILITY WHICH IT INCURRED UNDER THE ACT ON ACCOUNT OF THE
SHIPOWNER'S WRONG.  THIS RIGHT, WHICH WAS EVIDENTLY RECOGNIZED BY THE
DISTRICT COURT, /21/  IS SAID NOT TO STEM SOLELY FROM THE PRE-EXISTING
CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES, BUT TO BE CONFERRED BY
LAW IN ORDER TO PLACE THE LIABILITY WHERE IT JUSTLY BELONGS.  /22/  AS
ONE COURT HAS DESCRIBED IT, 

"ADMIRALTY COURTS HAVE RECOGNIZED A RIGHT TO INDEMNITY, AS
DISTINGUISHED FROM CONTRIBUTION, IN A PERSON WHO HAS RESPONDED IN
DAMAGES FOR A LOSS CAUSED BY THE WRONG OF ANOTHER.  THIS RIGHT HAS BEEN
RECOGNIZED IN TWO GENERAL CLASSES OF CASES:  THOSE IN WHICH THE PERSON
SEEKING INDEMNIFICATION WAS WITHOUT FAULT; AND THOSE IN WHICH SUCH
PERSON WAS PASSIVELY NEGLIGENT, BUT THE PRIMARY CAUSE OF THE LOSS WAS
THE ACTIVE NEGLIGENCE OF ANOTHER."  /23/ RECOVERY CAN BE BASED ON THIS
CONCEPT, MARINE TERMINALS CONTENDS, BECAUSE BURNSIDE'S CONDUCT WAS
EITHER SOLELY OR PRIMARILY RESPONSIBLE FOR MCNEILL'S DEATH. 

WE EXPRESS NO OPINION ON THE VALIDITY OF THIS INDEMNITY THEORY OR
ITS APPLICATION TO THIS CASE, BUT HOLD ONLY THAT MARINE TERMINALS IS
NOT FORE CLOSED BY ANY DECISION OF THIS COURT FROM RAISING IT IN THE
DISTRICT COURT.  WE HAVE CAUTIONED THAT "IN THE AREA OF CONTRACTUAL
INDEMNITY AN APPLICATION OF THE THEORIES OF 'ACTIVE' OR 'PASSIVE' AS
WELL AS 'PRIMARY' OR 'SECONDARY' NEGLIGENCE IS INAPPROPRIATE,"
WEYERHAEUSER S.S. CO. V. NACIREMA OPERATING CO., 355 U.S. 563, 569. 
/24/ BUT THAT PROSCRIPTION IN TERMS APPLIED ONLY "IN THE AREA OF
CONTRACTUAL INDEMNITY" UNDER RYAN.  IN RYAN ITSELF WE SPECIFICALLY DID
"NOT MEET THE QUESTION OF A NONCONTRACTUAL RIGHT OF INDEMNITY OR OF THE
RELATION OF THE COMPENSATION ACT TO SUCH A RIGHT."  350 U.S.,AT 133. 
/25/  BY LEAVING OPEN THE QUESTION OF SUCH AN INDEMNITY ACTION BY THE
SHIPOWNER AGAINST THE STEVEDORING CONTRACTOR, A FORTIORI WE DID NOT
DECIDE ANYTHING WITH RESPECT TO SUCH AN ACTION BY THE STEVEDORING
CONTRACTOR AGAINST THE SHIPOWNER.  /26/ 

BECAUSE, AS WE HOLD TODAY, SEC. 33 OF THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT IS NOT THE EXCLUSIVE SOURCE OF THE
STEVEDORING CONTRACTOR'S REMEDIES AGAINST THE SHIPOWNER, AND THE FORMER
MAY HAVE A CAUSE OF ACTION IN TORT FOR THE COMPENSATION PAYMENTS CAUSED
BY THE SHIPOWNER'S NEGLIGENCE, WE REVERSE THE JUDGMENT OF THE COURT OF
APPEALS AND REMAND THIS CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SECTION 33, AS AMENDED IN 1959, 73 STAT. 391, AS SET FORTH IN
33 U.S.C. 933, READS AS FOLLOWS: 

"(A) IF ON ACCOUNT OF A DISABILITY OR DEATH FOR WHICH COMPENSATION
IS PAYABLE UNDER THIS CHAPTER THE PERSON ENTITLED TO SUCH COMPENSATION
DETERMINES THAT SOME PERSON OTHER THAN THE EMPLOYER OR A PERSON OR
PERSONS IN HIS EMPLOY IS LIABLE IN DAMAGES, HE NEED NOT ELECT WHETHER
TO RECEIVE SUCH COMPENSATION OR TO RECOVER DAMAGES AGAINST SUCH THIRD
PERSON. 

"(B) ACCEPTANCE OF SUCH COMPENSATION UNDER AN AWARD IN A
COMPENSATION ORDER FILED BY THE DEPUTY COMMISSIONER SHALL OPERATE AS AN
ASSIGNMENT TO THE EMPLOYER OF ALL RIGHT OF THE PERSON ENTITLED TO
COMPENSATION TO RECOVER DAMAGES AGAINST SUCH THIRD PERSON UNLESS SUCH
PERSON SHALL COMMENCE AN ACTION AGAINST SUCH THIRD PERSON WITHIN SIX
MONTHS AFTER SUCH AWARD. 

"(C) THE PAYMENT (OF SUCH COMPENSATION INTO THE FUND ESTABLISHED) IN
EMPLOYER OF ALL RIGHT OF THE LEGAL REPRESENTATIVE OF THE DECEASED
(HEREINAFTER REFERRED TO AS 'REPRESENTATIVE') TO RECOVER DAMAGES
AGAINST SUCH THIRD PERSON. 

"(D) SUCH EMPLOYER ON ACCOUNT OF SUCH ASSIGNMENT MAY EITHER
INSTITUTE PROCEEDINGS FOR THE RECOVERY OF SUCH DAMAGES OR MAY
COMPROMISE WITH SUCH THIRD PERSON EITHER WITHOUT OR AFTER INSTITUTING
SUCH PROCEEDING. 

"(E) ANY AMOUNT RECOVERED BY SUCH EMPLOYER ON ACCOUNT OF SUCH
ASSIGNMENT, WHETHER OR NOT AS THE RESULT OF A COMPROMISE, SHALL BE
DISTRIBUTED AS FOLLOWS: 

"(1) THE EMPLOYER SHALL RETAIN AN AMOUNT EQUAL TO-- 

"(A) THE EXPENSES INCURRED BY HIM IN RESPECT TO SUCH PROCEEDINGS OR
COMPROMISE (INCLUDING A REASONABLE ATTORNEY'S FEE AS DETERMINED BY THE
DEPUTY COMMISSIONER); 

"(B) THE COST OF ALL BENEFITS ACTUALLY FURNISHED BY HIM TO THE
EMPLOYEE UNDER SECTION 907 OF THIS TITLE; 

"(C) ALL AMOUNTS PAID AS COMPENSATION; 

"(D) THE PRESENT VALUE OF ALL AMOUNTS THEREAFTER PAYABLE AS
COMPENSATION, SUCH PRESENT VALUE TO BE COMPUTED IN ACCORDANCE WITH A
SCHEDULE PREPARED BY THE SECRETARY, AND THE PRESENT VALUE OF THE COST
OF ALL BENEFITS THEREAFTER TO BE FURNISHED UNDER SECTION 907 OF THIS
TITLE, TO BE ESTIMATED BY THE DEPUTY COMMISSIONER, AND THE AMOUNTS SO
COMPUTED AND ESTIMATED TO BE RETAINED BY THE EMPLOYER AS A TRUST FUND
TO PAY SUCH COMPENSATION AND THE COST OF SUCH BENEFITS AS THEY BECOME
DUE, AND TO PAY ANY SUM FINALLY REMAINING IN EXCESS THEREOF TO THE
PERSON ENTITLED TO COMPENSATION OR TO THE REPRESENTATIVE; AND 

"(2) THE EMPLOYER SHALL PAY ANY EXCESS TO THE PERSON ENTITLED TO
COMPENSATION OR TO THE REPRESENTATIVE, LESS ONE-FIFTH OF SUCH EXCESS
WHICH SHALL BELONG TO THE EMPLOYER. 

"(F) IF THE PERSON ENTITLED TO COMPENSATION INSTITUTES PROCEEDINGS
WITHIN THE PERIOD PRESCRIBED IN SUBDIVISION (B) OF THIS SECTION THE
EMPLOYER SHALL BE REQUIRED TO PAY AS COMPENSATION UNDER THIS CHAPTER A
SUM EQUAL TO THE EXCESS OF THE AMOUNT WHICH THE SECRETARY DETERMINES IS
PAYABLE ON ACCOUNT OF SUCH INJURY OR DEATH OVER THE AMOUNT RECOVERED
AGAINST SUCH THIRD PERSON. 

"(G) IF COMPROMISE WITH SUCH THIRD PERSON IS MADE BY THE PERSON
ENTITLED TO COMPENSATION OR SUCH REPRESENTATIVE OF AN AMOUNT LESS THAN
THE COMPENSATION TO WHICH SUCH PERSON OR REPRESENTATIVE WOULD BE
ENTITLED TO ( ) UNDER THIS CHAPTER, THE EMPLOYER SHALL BE LIABLE FOR
COMPENSATION AS DETERMINED IN SUBDIVISION (F) OF THIS SECTION ONLY IF
SUCH COMPROMISE IS MADE WITH HIS WRITTEN APPROVAL. 

"(H) WHERE THE EMPLOYER IS INSURED AND THE INSURANCE CARRIER HAS
ASSUMED THE PAYMENT OF THE COMPENSATION, THE INSURANCE CARRIER SHALL BE
SUBROGATED TO ALL THE RIGHTS OF THE EMPLOYER UNDER THIS SECTION. 

"(I) THE RIGHT TO COMPENSATION OR BENEFITS UNDER THIS CHAPTER SHALL
BE THE EXCLUSIVE REMEDY TO AN EMPLOYEE WHEN HE IS INJURED, OR TO HIS
ELIGIBLE SURVIVORS OR LEGAL REPRESENTATIVES IF HE IS KILLED, BY THE
NEGLIGENCE OR WRONG OF ANY OTHER PERSON OR PERSONS IN THE SAME EMPLOY:
PROVIDED, THAT THIS PROVISION SHALL NOT AFFECT THE LIABILITY OF A
PERSON OTHER THAN AN OFFICER OR EMPLOYEE OF THE EMPLOYER." 

/2/  IF THE REPRESENTATIVE DECIDES TO BRING SUIT AGAINST THE THIRD
PERSON WITHIN SIX MONTHS OF THE AWARD, AS IN THIS CASE, THE EMPLOYER'S
LIABILITY FOR COMPENSATION IS REDUCED BY THE AMOUNT RECOVERED BY THE
REPRESENTATIVE FROM THE THIRD PERSON.  SEE SEC. 33(F), SUPRA, N. 1. 

/3/  284 F.SUPP.  740. 

/4/  392 F.2D 918. 

/5/  393 U.S. 820. 

/6/  THE DISTRICT COURT FOUND THAT CRUCIAL FACTUAL ISSUES EXISTED
REGARDING THE LONGSHOREMEN'S KNOWLEDGE OF THE OPEN HATCH AND THE
PARTIES' RELATIVE DUTIES OF INSPECTION.  MCNEILL HAD BEEN PRESENT AT
THE TIME THE HATCH LIDS WERE "WINGED OUT," BUT THE COURT NOTED THAT THE
FACTUAL QUESTION WAS POSED WHETHER MCNEILL COULD REASONABLY HAVE
ASSUMED THAT THE COVERS WOULD BE REPLACED AND HAD MERELY ENTERED THE
AREA TO CHECK IT FOR SAFETY. 

/7/  THE ILLINOIS WRONGFUL DEATH ACT WAS AMENDED IN 1967 TO REMOVE
THE CEILING ON DAMAGES, BUT THE AMENDMENT WAS MADE PROSPECTIVE ONLY,
AND THE ACT STILL LIMITS THE RECOVERY TO $30,000 "WHERE SUCH DEATH
OCCURS ON OR AFTER JULY 8, 1957 AND PRIOR TO THE EFFECTIVE DATE (AUGUST
18, 1967) OF THIS AMENDATORY ACT OF 1967 . . . . "  ILL. REV. STAT., C.
70, SEC. 2. 

THE DISTRICT COURT HAS REVERSED THE QUESTION WHETHER, SUING AS
SUBROGEE, THE EMPLOYER'S RECOVERY WOULD BE LIMITED BY THE ILLINOIS
STATUTE: 

"IN OUR JUDGMENT, DEFENDANT'S THEORY OF A DIRECT ACTION CANNOT BE
SUPPORTED, AND ITS COUNTERCLAIM MUST BE DISMISSED WITHOUT PREJUDICE TO
THE FILING OF AN AMENDED COUNTERCLAIM WHICH ALLEGES A CAUSE OF ACTION
DERIVED FROM THE PERSONS ENTITLED TO COMPENSATION.  IF SUCH AN
AMENDMENT IS FILED, WE MAY THEN HAVE OCCASION TO CONSIDER WHETHER AS
SUBROGEE OR ASSIGNEE, THE DEFENDANT'S POSSIBLE RECOVERY IS LIMITED BY
THE DAMAGE CEILING OF THE ILLINOIS WRONGFUL DEATH ACT."  284 F.SUPP.,
AT 744-745. 

/8/  284 F.SUPP., AT 744.  THE DISTRICT COURT NOTED THAT THE
PETITIONER'S THEORY IS SUMMARIZED IN SEC. 96 OF THE RESTATEMENT OF
RESTITUTION: "A PERSON WHO, WITHOUT PERSONAL FAULT, HAS BECOME SUBJECT
TO TORT LIABILITY FOR THE UNAUTHORIZED AND WRONGFUL DEATH OF ANOTHER,
IS ENTITLED TO INDEMNITY FROM THE OTHER FOR EXPENDITURES PROPERLY MADE
IN THE DISCHARGE OF SUCH LIABILITY." 

/9/  284 F.SUPP., AT 744. 

/10/  392 F.2D, AT 920. 

/11/  IBID. 

/12/  SECTION 5, 44 STAT. 1426, AS SET FORTH IN 33 U.S.C. 905, READS
AS FOLLOWS: 

"THE LIABILITY OF AN EMPLOYER PRESCRIBED IN SECTION 904 OF THIS
TITLE 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, EXCEPT THAT IF AN EMPLOYER FAILS TO SECURE
PAYMENT OF COMPENSATION AS REQUIRED BY THIS CHAPTER, AN INJURED
EMPLOYEE, OR HIS LEGAL REPRESENTATIVE IN CASE DEATH RESULTS FROM THE
INJURY, MAY ELECT TO CLAIM COMPENSATION UNDER THIS CHAPTER, OR TO
MAINTAIN AN ACTION AT LAW OR IN ADMIRALTY FOR DAMAGES ON ACCOUNT OF
SUCH INJURY OR DEATH.  IN SUCH ACTION THE DEFENDANT MAY NOT PLEAD AS A
DEFENSE THAT THE INJURY WAS CAUSED BY THE NEGLIGENCE OF A FELLOW
SERVANT, NOR THAT THE EMPLOYEE ASSUMED THE RISK OF HIS EMPLOYMENT, NOR
THAT THE INJURY WAS DUE TO THE CONTRIBUTORY NEGLIGENCE OF THE
EMPLOYEE." 

/13/  BOTH THE DISTRICT COURT AND THE COURT OF APPEALS RELIED UPON
DOLEMAN V. LEVINE, 295 U.S. 221, CITING IT FOR THE PROPOSITION THAT THE
EMPLOYER'S RIGHTS ARE DERIVED FROM THE PERSON ENTITLED TO
COMPENSATION.  THE DECISION, HOWEVER, HELD ONLY THAT, UNDER THE
PREDECESSOR OF SEC. 33, THE EMPLOYER COULD NOT MAINTAIN A WRONGFUL
DEATH ACTION IN HIS OWN NAME IF HE WAS SUBROGATED TO THE RIGHTS OF ONLY
ONE OF THE DEPENDENTS ENTITLED TO BRING THE ACTION.  NOT A WORD OF THE
OPINION IN THAT CASE SUGGESTS THAT SEC. 33 OF THE ACT WAS THE ONLY
SOURCE OF THE EMPLOYER'S RIGHTS AGAINST THIRD PERSONS FOR LIABILITY TO
HIS EMPLOYEES. 

/14/  THE DISTRICT COURT RESTED ON THE FOLLOWING RATIONALE OF THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA IN CALIFORNIA
CASUALTY INDEMNITY EXCHANGE V. UNITED STATES, 74 F.SUPP.  401, 404: 

"THE RIGHT OF RECOUPMENT (UNDER THE FEDERAL ACT) ON THE GROUND OF
THIRD PARTY LIABILITY IS NOT A RIGHT CREATED IN THE LIBELANTS BY
STATUTE AS IN THE CALIFORNIA COMPENSATION ACT . . . . THE DIFFERENCE
LIES IN THE FACT THAT THE RIGHTS OF THE EMPLOYER AND ITS INSURANCE
CARRIER UNDER THE LONGSHOREMEN'S ACT RESULTS SOLELY BY AN ASSIGNMENT OF
THE ORIGINAL RIGHTS OF THE INJURED PERSON, WHICH ORIGINAL RIGHTS ARE
NOT CREATED BY THE STATUTE.  THE ACT OF THE INJURED PERSON, OR
REPRESENTATIVES OF DECEDENT IN SEEKING AND ACCEPTING COMPENSATION UNDER
THE LONGSHOREMEN'S ACT OPERATES AS AN ASSIGNMENT OF THOSE RIGHTS AND
CREATES NO NEW RIGHT OF ACTION IN THE EMPLOYER AS IS DONE IN THE
CALIFORNIA LAW.  THE ASSIGNEE HAS AND CAN HAVE NO GREATER RIGHT THAN
THE ASSIGNOR.  . . . " 

IT IS CLEAR EVEN FROM THE FACE OF THIS PASSAGE, HOWEVER, THAT THE
COURT IN CALIFORNIA CASUALTY WAS ADDRESSING ITSELF TO A DIFFERENT
QUESTION FROM THAT PRESENTED BY THE INSTANT CASE.  THE PLAINTIFFS THERE
HAD BROUGHT SUIT "AS SUBROGEE INSURANCE CARRIERS)," ID., AT 403, AND
THE HOLDING WAS ONLY THAT WHEN THE EMPLOYER OR HIS INSURANCE CARRIER
SUES AS SUBROGEE, HIS RIGHTS ARE DERIVED FROM AND THEREFORE IDENTICAL
TO THOSE OF THE EMPLOYEE.  THE CASE DID NOT HOLD THAT THE EMPLOYER'S
REMEDY AS SUBROGEE IS EXCLUSIVE.     NOR DID THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO SO HOLD IN REISS S.S. CO. V. CYR, 138
F.SUPP.  834, AFF'D, 229 F.2D 849, ANOTHER CASE RELIED ON BY THE
DISTRICT COURT BELOW.  LANGUAGE IN THE REISS OPINION TO THE EFFECT THAT
SEC. 33 "GOVERNS EXCLUSIVELY IN INSTANCES OF THIRD PARTY LIABILITY,"
ID., AT 836, REFERRED ONLY TO THE RELATIONSHIP BETWEEN EMPLOYER AND
EMPLOYEE UNDER THE ACT, NOT TO THE RELATIONSHIP BETWEEN THE EMPLOYER
AND THIRD PARTIES. 

/15/  SEE SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85; MAHNICH V.
SOUTHERN S.S. CO., 321 U.S. 96. 

/16/  SEE SUPRA, AT 409.     /17/  THE CONTEXT OF THIS STATEMENT IN
WEYERHAEUSER WAS OUR TREATMENT OF THE STEVEDORING CONTRACTOR'S
CONTENTION THAT THE SHIPOWNER'S CONDUCT HAD BEEN SUCH AS TO PRECLUDE
RECOVERY FOR THE STEVEDORING CONTRACTOR'S BREACH OF WARRANTY.  THE
STATEMENT THAT THE SHIPOWNER OWED THE STEVEDORING CONTRACTOR CERTAIN
DUTIES DID NOT IDENTIFY THE SOURCE OF THOSE DUTIES, BUT OUR DISCUSSION
OF THE STATEMENT WAS IN TERMS OF OBLIGATIONS IMPOSED BY LAW: "THE
DUTIES OWING FROM PETITIONER (THE SHIPOWNER) TO CONNOLLY (THE
LONGSHOREMAN) WERE NOT IDENTICAL WITH THOSE FROM PETITIONER TO
RESPONDENT (THE STEVEDORING CONTRACTOR).  WHILE THE JURY FOUND
PETITIONER 'GUILTY OF SOME ACT OF NEGLIGENCE,' THAT ULTIMATE FINDING
MIGHT HAVE BEEN PREDICATED, INTER ALIA, ON A FAILURE OF PETITIONER TO
REMOVE THE SHELTER WHEN THE SHIP LEFT NEW YORK, OR A FAILURE TO CORRECT
OR WARN RESPONDENT OF A LATENT DANGEROUS CONDITION KNOWN TO PETITIONER
WHEN RESPONDENT BEGAN THE BOSTON UNLOADING.  LIKEWISE, THE FINDING
MIGHT HAVE BEEN PREDICATED ON A FAILURE OF PETITIONER DURING THE FIVE
DAYS IN BOSTON TO INSPECT THE SHELTER, DETECT AND CORRECT THE UNSAFE
CONDITION.  ALTHOUGH ANY OF THESE POSSIBILITIES COULD PROVIDE CONNOLLY
A BASIS OF RECOVERY, AT LEAST THE LATTER WOULD NOT, UNDER RYAN, PREVENT
RECOVERY BY PETITIONER IN THE THIRD-PARTY ACTION."  355 U.S., AT 568. 

/18/  THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CALIFORNIA HAS HELD THAT THE SHIPOWNER OWES THE STEVEDORING CONTRACTOR
AT LEAST THE FOLLOWING OBLIGATIONS: "(1) TO EXERCISE ORDINARY CARE
UNDER THE CIRCUMSTANCES TO PLACE THE SHIP ON WHICH THE STEVEDORING WORK
IS TO BE DONE, AND THE EQUIPMENT AND APPLIANCES ABOARD SHIP, IN SUCH
CONDITION THAT AN EXPERT AND EXPERIENCED STEVEDORING CONTRACTOR,
MINDFUL OF THE DANGERS HE SHOULD REASONABLY EXPECT TO ENCOUNTER,
ARISING FROM THE HAZARDS OF THE SHIP'S SERVICE OR OTHERWISE, WILL BE
ABLE BY THE EXERCISE OF ORDINARY CARE UNDER THE CIRCUMSTANCES TO LOAD
OR DISCHARGE THE CARGO, AS THE CASE MAY BE, IN A WORKMANLIKE MANNER AND
WITH REASONABLE SAFETY TO PERSONS AND PROPERTY; AND (2) TO GIVE THE
STEVEDORING CONTRACTOR REASONABLE WARNING OF THE EXISTENCE OF ANY
LATENT OR HIDDEN DANGER WHICH HAS NOT BEEN REMEDIED AND IS NOT USUALLY
ENCOUNTERED OR REASONABLY TO BE EXPECTED BY AN EXPERT AND EXPERIENCED
STEVEDORING COMPANY IN THE PERFORMANCE OF THE STEVEDORING WORK ABOARD
THE SHIP, IF THE SHIPOWNER ACTUALLY KNOWS OR, IN THE EXERCISE OF
ORDINARY CARE UNDER THE CIRCUMSTANCES, SHOULD KNOW OF THE EXISTENCE OF
SUCH DANGER, AND THE DANGER IS ONE WHICH THE SHIPOWNER SHOULD
REASONABLY EXPECT A STEVEDORING CONTRACTOR TO ENCOUNTER IN THE
PERFORMANCE OF THE STEVEDORING CONTRACT."  HUGEV V.
DAMPSKISAKTIESELSKABET INTERNATIONAL, 170 F.SUPP.  601, 610-611, AFF'D
SUB NOM. METROPOLITAN STEVEDORE CO. V. DAMPSKIASAKTIESELSKABET
INTERNATIONAL, 274 F.2D 875, CERT. DENIED, 363 U.S. 803.  WHILE THE
COURT IDENTIFIED THESE OBLIGATIONS AS IMPLIED IN FACT FROM THE
STEVEDORING CONTRACT, IT INDICATED THAT THEY ALSO CONSTITUTED THE "DUTY
OF ORDINARY CARE IMPOSED BY LAW TOWARD 'PERSONS RIGHTFULLY TRANSACTING
BUSINESS ON SHIPS.'"  170 F.SUPP.  AT 610. 

IN THE CASE OF MICKLE V. THE HENRIETTE WILHELMINE SCHULTE, 188
F.SUPP.  77, 80, THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, WHILE REJECTING THE ARGUMENT THAT SUCH OBLIGATIONS WERE
CONTRACTUAL, AGREED THAT THE OCCUPIER OF A SHIP "OWES CERTAIN DUTIES OF
CARE TO A BUSINESS INVITEE, ESPECIALLY TO AN INDEPENDENT CONTRACTOR,
SUCH AS A STEVEDORE COMPANY, WHICH COMES ONTO THE PREMISES TO PERFORM
SERVICES, 2 HARPER & JAMES, THE LAW OF TORTS, SECTION 27.12 %1956),
INCLUDING THE DUTY NOT TO CAUSE INJURY BY NEGLIGENT ACTIVITY, 2
RESTATEMENT OF TORTS, SECTION 341; THE DUTY TO WARN OF LATENT PERILS
ACTUALLY KNOWN TO THE OCCUPIER, PROSSER ON TORTS, 453 (1955); AND THE
DUTY TO INSPECT THE PREMISES TO DISCOVER DANGEROUS CONDITIONS.  2
RESTATEMENT OF TORTS, SECTION 343.  SEE GENERALLY PROSSER, SUPRA, 452
62." 

/19/  SUCH RECIPROCAL CONTRACTUAL WARRANTIES WERE RECOGNIZED IN
RYAN, MARINE TERMINALS ARGUES, BY THE COURT'S STATEMENT THAT "THE
STEVEDORING CONTRACTOR . . . HAS RECEIVED A CONTRACTUAL QUID PRO QUO
FROM THE SHIPOWNER FOR ASSUMING RESPONSIBILITY FOR THE PROPER
PERFORMANCE OF ALL OF THE LATTER'S STEVEDORING REQUIREMENTS.  . . . "
350 U.S., AT 129, N. 3.  OTHER COURTS HAVE MOST OFTEN DEALT WITH THE
SHIPOWNER'S DUTIES ONLY IN THE CONTEXT OF A STEVEDORING CONTRACTOR'S
DEFENSE TO A SHIPOWNER'S CLAIM FOR BREACH OF RYAN WARRANTIES.  SEE,
E.G., D/S OVE SKOU V. HEBERT, 365 F.2D 341; T. SMITH & SON.  V. SKIBS
A/S HASSEL, 362 F.2D 745; ALBANESE V. N. V. NEDERL.  AMERIK STOOMV. 
MAATS., 346 F.2D 481, REV'D ON OTHER GROUNDS, 382 U.S. 283; MISURELLA
V. ISTHMIAN LINES, INC., 328 F.2D 40; PETTUS V. GRACE LINE, INC., 305
F.2D 151; DRAGO V. A/S INGER, 305 F.2D 139, CERT. DENIED, 371 U.S. 925;
CALMAR S.S. CORP. V. NACIREMA OPERATING CO., 266 F.2D 79, CERT. DENIED,
361 U.S. 816.  THEY HAVE ON OCCASION HOWEVER, STATED OR INTIMATED THAT
THE SHIPOWNER MAKES CERTAIN AFFIRMATIVE WARRANTIES TO THE STEVEDORING
CONTRACTOR WHOSE BREACH WOULD SUPPORT AN ACTION FOR DAMAGES.  SEE,
E.G., THE NO. 34, 25 F.2D 602; PETTUS V. GRACE LINE, INC., 305 F.2D
151, 155 (DISSENTING OPINION OF JUDGE CLARK); CUSUMANO V. WILHELMSEN,
267 F.SUPP.  164; RING V. MOTOR VESSEL CAPE CLEAR, 266 F.SUPP.  709. 
SEE ALSO MOWBRAY V. MERRYWEATHER, (1895) 2 Q.B. 640.  SEE GENERALLY
PROUDFOOT, "THE TAR BABY":  MARITIME PERSONAL-INJURY INDEMNITY ACTIONS,
20 STAN.L.REV.  423, 442-445 (1968). 

/20/  THE STEVEDORING CONTRACTOR'S WARRANTY OF WORKMANLIKE SERVICE
UNDER RYAN EXTENDS TO THE SHIPOWNER EVEN IN THE ABSENCE OF CONTRACTUAL
PRIVITY BETWEEN THE PARTIES.  WATERMAN S.S. CORP. V. DUGAN & MCNAMARA,
INC., 364 U.S. 421; CRUMADY V. THE JOACHIM HENDRIK FISSER, 358 U.S.
423.  FOR THE SUGGESTION THAT THE STEVEDORING CONTRACTOR MAY BE THE
BENEFICIARY OF CERTAIN OF THE SHIPOWNER'S OBLIGATIONS UNDER THE CHARTER
AGREEMENT, SEE DRAGO V. A/S INGER, 305 F.2D 139, 143. 

/21/  SEE SUPRA, AT 410-411. 

/22/  THIS COURT HAS RECOGNIZED THE OBJECTIVE UNDER THE COMPENSATION
ACT OF "PLACING THE BURDEN ULTIMATELY ON THE COMPANY WHOSE DEFAULT
CAUSED THE INJURY."  ITALIA SOCIETA PER AZIONI DI NAVIGAZIONE V. OREGON
STEVEDORING CO., 376 U.S. 315, 324.  AND SEE REED V. THE YAKA, 373 U.S.
410, 414. 

/23/  DAVIS V. AMERICAN PRESIDENT LINES, 106 F.SUPP.  729, 730.  FOR
OTHER DECISIONS RECOGNIZING SUCH A QUASI-CONTRACTUAL RIGHT OF INDEMNITY
UNDER FEDERAL MARITIME LAW, SEE, E.G., PARENZAN V. IINO KAIUN KABUSHIKI
KAISYA, 251 F.2D 928, CERT. DENIED, SUB NOM. INTERNATIONAL TERMINAL
OPERATING CO. V. IINO KAUIN KAISHA, 356 U.S. 939; AMERICAN PRESIDENT
LINES, LTD. V. MARINE TERMINALS CORP., 234 F.2D 753, CERT. DENIED, 352
U.S. 926; BERTI V. COMPAGNIE DE NAVIGATION CYPRIEN FABRE, 213 F.2D 397;
STATES S.S. CO. V. ROTHSCHILD INT'L STEVEDORING CO., 183 F.2D 181;
STANDARD OIL CO. V. ROBINS DRY DOCK & REPAIR CO., 32 F.2D 182; MCFALL
V. COMPAGNIE MARITIME BELGE, 304 N.Y. 314, 107 N.E.2D 463. 

/24/  SEE ALSO ITALIA SOCIETA PER AZIONI DI NAVIGAZIONE V. OREGON
STEVEDORING CO., 376 U.S. 315, 320. 

/25/  SEE ALSO 350 U.S., AT 132, N. 6.  THE RYAN OPINION ALSO
RECOGNIZED THE DIFFERENCE BETWEEN, AND TREATED SEPARATELY, THE
NONCONTRACTUAL RIGHT OF INDEMNITY AND THE CLAIM FOR CONTRIBUTION FROM A
JOINT TORTFEASOR.  ID., AT 133. 

/26/  SOME HAVE THOUGHT THAT THE EXCLUSIVITY OF THE EMPLOYER'S
STATUTORY LIABILITY TO THE EMPLOYEE WOULD PREVENT THE SHIPOWNER FROM
ASSERTING A RIGHT OF INDEMNITY AGAINST THE STEVEDORING CONTRACTOR BASED
ON THE LATTER'S WRONG TO THE EMPLOYEE.  SEE, E.G., RYAN, SUPRA, AT 142
(BLACK, J., DISSENTING); BROWN V. AMERICAN-HAWAIIAN S.S. CO., 211 F.2D
16; SLATTERY V. MARRA BROS., 186 F.2D 134 CERT. DENIED, 341 U.S. 915. 
BUT THERE IS NO SUCH BARRIER, OF COURSE, TO A DIRECT ACTION BY THE
STEVEDORING CONTRACTOR AGAINST THE SHIPOWNER. 

JOHN W. HOUGH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS ROBERT C. KECK. 

PAUL MCCAMBRIDGE ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS LUCIAN Y. RAY. 
..END :



















SCOFIELD V. NLRB, 394 U.S. 423 


       SCOFIELD ET AL. V. NATIONAL LABOR RELATIONS BOARD ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT. 

        NO. 273.  ARGUED JANUARY 14, 1969.-- DECIDED APRIL 1,
1969. 


PETITIONERS, UNION MEMBERS EMPLOYED BY THE WISCONSIN MOTOR CORP. ON A
PIECEWORK BASIS, WERE EACH FINED AND SUSPENDED BY THEIR UNION (WITHOUT
ENDANGERING THEIR JOB RETENTION) FOR VIOLATING A UNION RULE RELATING TO
PRODUCTION CEILINGS.  THE UNION AND EMPLOYER HAD BARGAINED OVER THE
CEILING LEVEL BUT THE COLLECTIVE BARGAINING AGREEMENT DOES NOT
FORECLOSE THE EMPLOYER'S PAYING EMPLOYEES FOR WORK PERFORMED OVER THE
CEILING.  PETITIONERS REFUSED TO PAY THE FINES, THE UNION BROUGHT SUIT
IN A STATE COURT TO COLLECT THEM, AND PETITIONERS THEN INITIATED
CHARGES BEFORE THE NATIONAL LABOR RELATIONS BOARD (NLRB), ARGUING THAT
UNION ENFORCEMENT OF THE RULE THROUGH COLLECTION OF FINES WAS AN UNFAIR
LABOR PRACTICE.  THE NLRB FOUND NO VIOLATION OF THE NATIONAL LABOR
RELATIONS ACT (NLRA) AND THE COURT OF APPEALS UPHELD ITS RULING. 
HELD: 

1.  PETITION FOR CERTIORARI IN THIS CASE, FILED WITHIN 90 DAYS OF
THE DECREE BUT NOT OF THE OPINION, WHERE NO NOTICE OF ENTRY OF ANY
JUDGMENT AT TIME OF THE OPINION HAD BEEN GIVEN PETITIONERS, WAS
TIMELY.  P. 427. 

2.  SECTION 8(B)(1) OF THE NLRA PERMITS A UNION TO ENFORCE A
PROPERLY ADOPTED RULE WHICH REFLECTS A LEGITIMATE UNION INTEREST,
IMPAIRS NO STATUTORY LABOR POLICY, AND IS REASONABLY ENFORCED AGAINST
UNION MEMBERS WHO ARE FREE TO LEAVE THE UNION AND ESCAPE THE RULE,
WHILE MAINTAINING JOB SECURITY UNDER THE UNION SHOP CLAUSE BY PAYING
DUES.  NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S. 175.  PP. 428-430. 

3.  ARGUMENTS THAT THE UNION RULE IN THIS CASE CONTRAVENED A
STATUTORY LABOR POLICY WERE INADEQUATE HERE.  THAT RULE DID NOT
DEMONSTRABLY IMPEDE THE COLLECTIVE BARGAINING PROCESS, CAUSE A BREACH
OF THE COLLECTIVE BARGAINING AGREEMENT, ESTABLISH FEATHER-BEDDING
WITHIN THE MEANING OF THE STATUTE, INDUCE DISCRIMINATION BY THE
EMPLOYER AGAINST ANY CLASS OF EMPLOYEES, OR REPRESENT ANY DERELICTION
BY THE UNION OF ITS DUTY OF FAIR REPRESENTATION, AND IN VIEW OF THE
ACCEPTABLE MANNER OF ITS ENFORCEMENT BY REASONABLE FINES TO VINDICATE A
PROPER UNION CONCERN IT DOES NOT CONSTITUTE THE RESTRAINT OR COERCION
PROHIBITED BY SEC. 8(B)(1)(A).  PP. 430-436. 

393 F.2D 49, AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

HALF THE PRODUCTION EMPLOYEES OF THE WISCONSIN MOTOR CORPORATION ARE
PAID ON A PIECEWORK OR INCENTIVE BASIS.  THEY AND THE OTHER EMPLOYEES
ARE REPRESENTED BY RESPONDENT UNION, WHICH HAS HAD CONTRACTUAL
RELATIONS WITH THE COMPANY SINCE 1937.  /1/  IN 1938 THE UNION
INITIATED A CEILING ON THE PRODUCTION FOR WHICH ITS MEMBERS WOULD
ACCEPT IMMEDIATE PIECEWORK PAY.  THIS WAS DONE AT FIRST BY GENTLEMEN'S
AGREEMENT AMONG THE MEMBERS, BUT SINCE 1944 BY UNION RULE ENFORCEABLE
BY FINES AND EXPULSION.  AS THE RULE FUNCTIONS NOW, MEMBERS MAY PRODUCE
AS MUCH AS THEY LIKE EACH DAY, BUT MAY ONLY DRAW PAY UP TO THE CEILING
RATE.  THE ADDITIONAL PRODUCTION IS "BANKED" BY THE COMPANY; THAT IS,
WAGES DUE FOR IT ARE RETAINED BY THE COMPANY AND PAID OUT TO THE
EMPLOYEE FOR DAYS ON WHICH THE PRODUCTION CEILING HAS NOT BEEN REACHED
BECAUSE OF MACHINE BREAKDOWN OR FOR SOME OTHER REASON.  IF THE MEMBER
DEMANDS TO BE PAID IN FULL EACH PAY PERIOD OVER THE CEILING RATE THE
COMPANY WILL COMPLY, BUT THE UNION ASSESSES A FINE OF $1 FOR EACH
VIOLATION, AND IN CASES OF REPEATED VIOLATION MAY FINE THE MEMBER UP TO
$100 FOR "CONDUCT UNBECOMING A UNION MEMBER."  FAILURE TO PAY THE FINE
MAY LEAD TO EXPULSION.  AS THE TRIAL EXAMINER FOUND, THE COMPANY'S
COMPLAINT IS NOT AND CANNOT BE THAT "THE EMPLOYEE, FOR THE PAY HE
RECEIVES, HAS NOT GIVEN THE REQUISITE QUID PRO QUO IN PRODUCTION."  145
N.L.R.B. 1097, 1120.  RATHER, THE QUESTION IS THE EXTENT TO WHICH THE
GROUP WILL FORGO FOR PAY THE REST PERIODS IT HAS BARGAINED FOR, AND THE
DISCIPLINE WHICH THE UNION MAY INVOKE TO ACHIEVE UNITY TOWARD THIS END
WHICH, THE TRIAL EXAMINER FOUND, WAS "MANIFESTLY A MATTER AFFECTING THE
INTEREST OF THE GROUP AND IN WHICH ITS COLLECTIVE BARGAINING STRENGTH
HINGES UPON THE COOPERATION OF ITS INDIVIDUAL COMPONENTS."  IBID. 

THE COLLECTIVE BARGAINING CONTRACT BETWEEN EMPLOYER AND UNION
DEFINES A "MACHINE RATE" OF HOURLY PAY GUARANTEED TO THE EMPLOYEES. 
THE PIECEWORK RATE, AS DEFINED BY THE CONTRACT, IS SET AT SUCH A LEVEL
THAT "THE AVERAGE COMPETENT OPERATOR WORKING AT A REASONABLE PACE (AS
DETERMINED BY A TIME STUDY) SHALL EARN NOT LESS THAN THE MACHINE RATE
OF HIS ASSIGNED TASK."  /2/  ALLOWANCES ARE MADE IN THE TIME STUDY FOR
SETTING UP MACHINERY, CLEANING TOOLS, FATIGUE, AND PERSONAL NEEDS.  BY
IGNORING THESE ALLOWANCES OR BY SPEED AND EFFICIENCY IT IS POSSIBLE FOR
AN INDUSTRIOUS EMPLOYEE TO PRODUCE FASTER THAN THE MACHINE RATE.  IF HE
DOES SO, HE IS ENTITLED TO ADDITIONAL PAY.  UNION MEMBERS, HOWEVER, ARE
SUBJECT TO THE BANKING PROCEDURES IMPOSED BY THE UNION RULE. 

THE MARGIN BETWEEN THE "MACHINE" RATE SET BY THE CONTRACT AND THE
CEILING RATE SET BY THE UNION WAS 10[ PER HOUR IN 1944.  AS A RESULT OF
COLLECTIVE BARGAINING BETWEEN COMPANY AND UNION OVER BOTH THE MACHINE
AND CEILING RATES, THE MARGIN HAS BEEN INCREASED TO BETWEEN 45[ AND
50[, DEPENDING ON THE SKILL LEVEL OF THE JOB.  THE COMPANY HAS
REGULARLY URGED THE UNION TO ABANDON THE CEILING AND HAS NEVER AGREED
TO REFUSE EMPLOYEES IMMEDIATE PAY FOR WORK DONE OVER THE CEILING. 
HOWEVER, THE PARTIES HAVE BARGAINED OVER THE CEILING RATE AND THE
COMPANY HAS EXTRACTED FROM THE UNION PROMISES TO INCREASE THE CEILING
RATE.  THE COMPANY OPENS ITS WORK RECORDS TO THE UNION TO PERMIT IT TO
CHECK COMPLIANCE WITH THE CEILING; PAYS UNION STEWARDS FOR TIME SPENT
IN THIS CHECKING ACTIVITY AS LEGITIMATE UNION BUSINESS; AND BANKS MONEY
FOR UNION MEMBERS COMPLYING WITH THE RULE.  THE CEILING RATE IS ALSO
USED IN COMPUTING PIECE RATE INCREASES AND IN SETTLING GRIEVANCES. 

THIS CASE AROSE IN 1961 WHEN A RANDOM CARD CHECK BY THE UNION SHOWED
THAT PETITIONERS, AMONG OTHER UNION MEMBERS, HAD EXCEEDED THE CEILING. 
THE UNION MEMBERSHIP IMPOSED FINES OF $50 TO $100, AND A YEAR'S
SUSPENSION FROM THE UNION.  PETITIONERS REFUSED TO PAY THE FINES, AND
THE UNION BROUGHT SUIT IN STATE COURT TO COLLECT THE FINES AS A MATTER
OF LOCAL CONTRACT LAW.  /3/ PETITIONERS THEN INITIATED CHARGES BEFORE
THE NATIONAL LABOR RELATIONS BOARD, ARGUING THAT UNION ENFORCEMENT OF
ITS RULE THROUGH THE COLLECTION OF FINES WAS AN UNFAIR LABOR PRACTICE. 
PETITIONERS ASSERTED THAT THEIR RIGHT TO REFRAIN FROM "CONCERTED
ACTIVITIES," NATIONAL LABOR RELATIONS ACT, SEC. 7, 49 STAT. 452, AS
AMENDED, 29 U.S.C. 157, WAS IMPAIRED BY THE UNION'S EFFORT TO "RESTRAIN
OR COERCE" THEM, IN VIOLATION OF NLRA, SEC. 8(B)(1)(A).  THE TRIAL
EXAMINER, AFTER EXTENSIVE FINDINGS, CONCLUDED THAT THERE WAS NO
VIOLATION OF THE ACT, AND HIS FINDINGS AND RECOMMENDATIONS WERE ADOPTED
BY THE BOARD, 145 N.L.R.B. 1097 (1964), WHOSE ORDER WAS ENFORCED BY THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT, 393 F.2D 49 (1968).  WE
AFFIRM. 

        I. 

WE ARE MET AT THE OUTSET WITH THE CONTENTION THAT THE PETITION FOR
CERTIORARI WAS UNTIMELY FILED.  IN CIVIL SUITS CERTIORARI MUST BE
APPLIED FOR "WITHIN NINETY DAYS AFTER THE ENTRY OF (THE) JUDGMENT OR
DECREE" OF WHICH REVIEW IS SOUGHT.  28 U.S.C. 2101(C).  IN THIS CASE AN
OPINION OF MARCH 5, 1968, CONCLUDED THAT "UPON PRESENTATION, AN
APPROPRIATE DECREE WILL BE ENTERED."  A DECREE WAS IN FACT ENTERED ON
APRIL 16, 1968.  THE PETITION FOR CERTIORARI WAS DOCKETED HERE ON JULY
6, 1968, WITHIN 90 DAYS OF THE DECREE BUT NOT OF THE OPINION. 

IN OUR VIEW, THE PETITION FOR CERTIORARI WAS TIMELY FILED. 
PETITIONERS HERE RECEIVED A COPY OF THE MARCH 5 OPINION, BUT WERE GIVEN
NO NOTICE OF ANY ENTRY OF JUDGMENT ON THAT DATE, AS WOULD BE REQUIRED
BY RULE 36 OF THE NEW FEDERAL RULES OF APPELLANT PROCEDURE, EFFECTIVE
JULY 1, 1968.  SINCE NO NOTICE WAS GIVEN AND IT COULD NOT HAVE BEEN
CLEAR TO PETITIONERS WHETHER THERE WAS A MARCH 5 JUDGMENT OR NOT WE
HOLD, WITHOUT ABANDONING THE STANDARD THAT A "JUDGMENT FOR OUR PURPOSES
IS FINAL WHEN THE ISSUES ARE ADJUDGED" AND SETTLED WITH FINALITY,
MARKET STREET R. CO. V. RAILROAD COMMISSION, 324 U.S. 548, 551-552
(1945); FTC V. MINNEAPOLIS-HONEYWELL REGULATOR CO., 344 U.S. 206, 212
(1952), THAT IN THIS CASE THE RELEVANT DATE IS THAT OF THE ENTRY OF THE
DECREE.  CF. RUBBER CO. V. GOODYEAR, 6 WALL.  153, 156 (1868). 

        II. 

COERCE (A) EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN (SEC.
7):  PROVIDED, THAT THIS PARAGRAPH SHALL NOT IMPAIR THE RIGHT OF A
LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES WITH RESPECT TO THE
ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN . . . ." 

BASED ON THE LEGISLATIVE HISTORY OF THE SECTION, INCLUDING ITS
PROVISO, THE COURT IN NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S. 175,
195 (1967), DISTINGUISHED BETWEEN INTERNAL AND EXTERNAL ENFORCEMENT OF
UNION RULES AND HELD THAT "CONGRESS DID NOT PROPOSE ANY LIMITATIONS
WITH RESPECT TO THE INTERNAL AFFAIRS OF UNIONS, ASIDE FROM BARRING
ENFORCEMENT OF A UNION'S INTERNAL REGULATIONS TO AFFECT A MEMBER'S
EMPLOYMENT STATUS."  A UNION RULE, DULY ADOPTED AND NOT THE ARBITRARY
FIAT OF A UNION OFFICER, FORBIDDING THE CROSSING OF A PICKET LINE
DURING A STRIKE WAS THEREFORE ENFORCEABLE AGAINST VOLUNTARY UNION
MEMBERS BY EXPULSION OR A REASONABLE FINE.  THE COURT THUS ESSENTIALLY
ACCEPTED THE POSITION OF THE NATIONAL LABOR RELATIONS BOARD DATING FROM
MINNEAPOLIS STAR & TRIBUNE CO., 109 N.L.R.B. 727 (1954) WHERE THE BOARD
ALSO DISTINGUISHED INTERNAL FROM EXTERNAL ENFORCEMENT /4/  IN HOLDING
THAT A UNION COULD FINE A MEMBER FOR HIS FAILURE TO TAKE PART IN
PICKETING DURING A STRIKE BUT THAT THE SAME RULE COULD NOT BE ENFORCED
BY CAUSING THE EMPLOYER TO EXCLUDE HIM FROM THE WORK FORCE OR BY
AFFECTING HIS SENIORITY WITHOUT TRIGGERING VIOLATIONS OF SECS. 8(B)(1),
8(B)(2), 8(A)(1), 8(A)(2), AND 8(A)(3).  THESE SECTIONS FORM A WEB, OF
WHICH SEC. 8(B)(1)(A) IS ONLY A STRAND, PREVENTING THE UNION FROM
INDUCING THE EMPLOYER TO USE THE EMOLUMENTS OF THE JOB TO ENFORCE THE
UNION'S RULES.  /5/ 

THIS INTERPRETATION OF SEC. 8(B)(1), AS THE COURT EXPLAINED IN ALLIS
CHALMERS, 388 U.S.,AT 193-195, WAS REINFORCED BY THE LANDRUM-GRIFFIN
ACT OF 1959 WHICH, ALTHOUGH IT DEALT WITH THE INTERNAL AFFAIRS OF
UNIONS, INCLUDING THE PROCEDURES FOR IMPOSING FINES OR EXPULSION, DID
NOT PURPORT TO OVERTURN OR MODIFY THE BOARD'S INTERPRETATION OF SEC.
8(B)(1).  /6/  AND IT WAS THIS INTERPRETATION WHICH THE BOARD FOLLOWED
IN ALLIS-CHALMERS AND IN THE CASE NOW BEFORE US. 

ALTHOUGH THE BOARD'S CONSTRUCTION OF THE SECTION EMPHASIZES THE
SANCTION IMPOSED, RATHER THAN THE RULE ITSELF, AND DOES NOT INVOLVE THE
BOARD IN JUDGING THE FAIRNESS OR WISDOM OF PARTICULAR UNION RULES, IT
HAS BECOME CLEAR THAT IF THE RULE INVADES OR FRUSTRATES AN OVERRIDING
POLICY OF THE LABOR LAWS THE RULE MAY NOT BE ENFORCED, EVEN BY FINE OR
EXPULSION, WITHOUT VIOLATING SEC. SEC. 8(B)(1).  IN BOTH SKURA /7/  AND
MARINE WORKERS, /8/  THE BOARD WAS CONCERNED WITH UNION RULES REQUIRING
A MEMBER TO EXHAUST UNION REMEDIES BEFORE FILING AN UNFAIR LABOR
PRACTICE CHARGE WITH THE BOARD.  THAT RULE, IN THE BOARD'S VIEW,
FRUSTRATED THE ENFORCEMENT SCHEME ESTABLISHED BY THE STATUTE AND THE
UNION WOULD COMMIT AN UNFAIR LABOR PRACTICE BY FINING OR EXPELLING
MEMBERS WHO VIOLATED THE RULE. 

THE MARINE WORKERS CASE CAME HERE /9/  AND THE RESULT REACHED BY THE
BOARD WAS SUSTAINED, THE COURT AGREEING THAT THE RULE IN QUESTION WAS
CONTRARY TO THE PLAIN POLICY OF THE ACT TO KEEP EMPLOYEES COMPLETELY
FREE FROM COERCION AGAINST MAKING COMPLAINTS TO THE BOARD.  FRUSTRATING
THIS POLICY WAS BEYOND THE LEGITIMATE INTEREST OF THE LABOR
ORGANIZATION, AT LEAST WHERE THE MEMBER'S COMPLAINT CONCERNED CONDUCT
OF THE EMPLOYER AS WELL AS THE UNION. 

UNDER THIS DUAL APPROACH, SEC. 8(B)(1) LEAVES A UNION FREE TO
ENFORCE A PROPERLY ADOPTED RULE WHICH REFLECTS A LEGITIMATE UNION
INTEREST, IMPAIRS NO POLICY CONGRESS HAS IMBEDDED IN THE LABOR LAWS,
AND IS REASONABLY ENFORCED AGAINST UNION MEMBERS WHO ARE FREE TO LEAVE
THE UNION AND ESCAPE THE RULE.  THIS VIEW OF THE STATUTE MUST BE
APPLIED HERE. 

        III. 

IN THE CASE AT HAND, THERE IS NO SHOWING IN THE RECORD THAT THE
FINES WERE UNREASONABLE OR THE MERE FIAT OF A UNION LEADER, OR THAT THE
MEMBERSHIP OF PETITIONERS IN THE UNION WAS INVOLUNTARY.  MOREOVER, THE
ENFORCEMENT OF THE RULE WAS NOT CARRIED OUT THROUGH MEANS UNACCEPTABLE
IN THEMSELVES, SUCH AS VIOLENCE OR EMPLOYER DISCRIMINATION.  IT WAS
ENFORCED SOLELY THROUGH THE INTERNAL TECHNIQUE OF UNION FINES,
COLLECTED BY THREAT OF EXPULSION OR JUDICIAL ACTION.  THE INQUIRY MUST
THEREFORE FOCUS ON THE LEGITIMACY OF THE UNION INTEREST VINDICATED BY
THE RULE AND THE EXTENT TO WHICH ANY POLICY OF THE ACT MAY BE VIOLATED
BY THE UNION-IMPOSED PRODUCTION CEILING. 

AS BOTH THE TRIAL EXAMINER AND THE COURT OF APPEALS NOTED, UNION
OPPOSITION TO UNLIMITED PIECEWORK PAY SYSTEMS IS HISTORIC.  UNION
APPREHENSION, NOT WITHOUT FOUNDATION, IS THAT SUCH SYSTEMS WILL DRIVE
UP EMPLOYEE PRODUCTIVITY AND IN TURN CREATE PRESSURES TO LOWER THE
PIECEWORK RATE SO THAT AT THE NEW, HIGHER LEVEL OF OUTPUT EMPLOYEES ARE
EARNING LITTLE MORE THAN THEY DID BEFORE.  THE FEAR IS THAT THE
COMPETITIVE PRESSURE GENERATED WILL ENDANGER WORKERS' HEALTH, FOMENT
JEALOUSIES, AND REDUCE THE WORK FORCE.  IN ADDITION, THE FINDINGS OF
THE TRIAL EXAMINER WERE AT THE CEILING SERVED AS A YARDSTICK FOR THE
SETTLEMENT OF JOB ALLOWANCE GRIEVANCES, THAT IT HAS PLAYED AN IMPORTANT
ROLE IN NEGOTIATING THE MINIMUM HOURLY RATE AND THAT IT IS THE STANDARD
FOR "FACTORING" THE HOURLY RATE RAISES INTO THE PIECEWORK RATE.  THE
VIEW OF THE TRIAL EXAMINER WAS THAT "IN TERMS OF A UNION'S TRADITIONAL
FUNCTION OF TRYING TO SERVE THE ECONOMIC INTERESTS OF THE GROUP AS A
WHOLE, THE UNION HAS A VERY REAL, IMMEDIATE, AND DIRECT INTEREST IN
IT."  145 N.L.R.B.,AT 1135. 

IT IS DOUBTLESS TRUE THAT THE UNION RULE IN QUESTION HERE AFFECTS
THE INTERESTS OF ALL THREE PARTICIPANTS IN THE LABOR-MANAGEMENT
RELATION:  EMPLOYER, EMPLOYEE, AND UNION.  /10/  ALTHOUGH THE
ENFORCEMENT OF THE RULE IS HANDLED AS AN INTERNAL UNION MATTER, THE
RULE HAS AND WAS INTENDED TO HAVE AN IMPACT BEYOND THE CONFINES OF THE
UNION ORGANIZATION.  BUT AS ALLIS-CHALMERS AND MARINE WORKERS MADE
CLEAR, IT DOES NOT FOLLOW FROM THIS THAT THE ENFORCEMENT OF THE RULE
VIOLATES SEC. 8(B)(1)(A), UNLESS SOME IMPAIRMENT OF A STATUTORY LABOR
POLICY CAN BE SHOWN. 

THE PRINCIPAL CONTENTION OF THE PETITIONERS IS THAT THE RULE IMPEDES
COLLECTIVE BARGAINING, A PROCESS NURTURED IN MANY WAYS BY THE ACT.  BUT
SURELY THIS IS NOT THE CASE HERE.  THE UNION HAS NEVER DENIED THAT THE
CEILING IS A BARGAINABLE ISSUE.  IT HAS NEVER REFUSED TO BARGAIN ABOUT
IT AS FAR AS THIS RECORD SHOWS.  INDEED, THE UNION HAS AT VARIOUS TIMES
AGREED TO RAISE ITS CEILING IN RETURN FOR AN INCREASE IN THE PIECE
RATE, AND THE CEILING HAS BEEN REGULARLY USED TO COMPUTE THE NEW PIECE
RATE.  IN LIGHT OF THIS BARGAINING HISTORY IT CAN HARDLY BE SAID THAT
THE UNION RULE HAS REMOVED THIS ISSUE FROM THE BARGAINING TABLE.  THE
COMPANY HAS REPEATEDLY SOUGHT AN AGREEMENT ELIMINATING THE PIECEWORK
CEILING, AN AGREEMENT WHICH, HAD IT BEEN OBTAINED, UNQUESTIONABLY WOULD
HAVE BEEN VIOLATED BY THE UNION RULE.  BUT THE COMPANY COULD NOT ATTAIN
THIS.  ALTHOUGH, LIKE THE UNION, IT COULD HAVE PRESSED THE POINT TO
IMPASSE, FIBREBOARD PAPER PRODUCTS CORP. V. NATIONAL LABOR RELATIONS
BOARD, 379 U.S. 203, 209-215 (1964), FOLLOWED BY STRIKE OR LOCKOUT, IT
HAS NEVER DONE SO.  INSTEAD, IT HAS SIGNED CONTRACTS RECOGNIZING THE
CEILING, HAS TOLERATED IT, AND HAS COOPERATED IN ITS ADMINISTRATION BY
HONORING REQUESTS BY EMPLOYEES TO BANK THEIR PAY FOR OVER-CEILING
WORK.  WE DISCERN NO BASIS IN THE STATUTORY POLICY ENCOURAGING
COLLECTIVE BARGAINING FOR GIVING THE EMPLOYER A BETTER BARGAIN THAN HE
HAS BEEN ABLE TO STRIKE AT THE BARGAINING TABLE.  /11/     NOR DOES THE
UNION CEILING ITSELF OR COMPLIANCE WITH IT BY UNION MEMBERS VIOLATE THE
COLLECTIVE CONTRACT.  THE COMPANY AND THE UNION HAVE AGREED TO AN
INCENTIVE PAY SCALE, BUT THEY HAVE ALSO ESTABLISHED A GUARANTEED
MINIMUM OR MACHINE RATE CONSIDERABLY BELOW THE UNION CEILING AND
DEFINED IN THE CONTRACT AS THE RATE OF PRODUCTION OF AN AVERAGE,
EFFICIENT WORKER.  THE CONTRACT THEREFORE LEAVES IN THE HANDS OF THE
EMPLOYEE THE OPTION OF TAKING FULL ADVANTAGE OF HIS ALLOWANCES,
PERFORMING ONLY AS AN AVERAGE EMPLOYEE AND NOT REACHING EVEN THE
CEILING RATE.  AT LEAST THERE IS NOTHING BEFORE US TO INDICATE THAT THE
COMPANY DISCIPLINES INDIVIDUALS WHO WORK AT ONLY THE MACHINE RATE OR
INDIVIDUALS WHO PRODUCE MORE BUT WHO CHOOSE NOT TO EXCEED THE UNION
CEILING.  THE SAME DECISION CAN BE MADE COLLECTIVELY BY THE UNION. 
ALTHOUGH IT HAS AGREED IN THE CONTRACT TO A PAY SCALE FOR PRODUCTION IN
EXCESS OF CEILING, THAT FACT IN THE CONTEXT OF THIS CASE DOES NOT
SUPPORT AN INFERENCE THAT THE UNION HAS AGREED NOT TO IMPOSE THE
CEILING OR THAT ITS ACTION IN ANNOUNCING ONE IS SOMEHOW CONTRARY TO THE
CONTRACT.  AND IF NEITHER UNION NOR MEMBER IS IN BREACH OF CONTRACT FOR
ESTABLISHING AND ADHERING TO THE CEILING, IT IS EQUALLY CLEAR THAT THE
RULE NEITHER CAUSES NOR INVITES A CONTRACT VIOLATION BY THE EMPLOYER
WHO STANDS READY TO PAY AN EMPLOYEE FOR HIS OVER-CEILING PRODUCTION OR
TO BANK IT AT HIS REQUEST. 

PETITIONERS PURPORT TO CHARACTERIZE THE UNION RULE AS
FEATHERBEDDING, BUT IT IS HARD TO SQUARE THIS WITH THE COLLECTIVE
AGREEMENT THAT AN AVERAGE, EFFICIENT EMPLOYEE PRODUCES AT A "MACHINE"
RATE SUBSTANTIALLY BELOW THE CEILING.  BEYOND THAT, HOWEVER, CONGRESS
HAS ADDRESSED ITSELF SPECIFICALLY TO THE PROBLEM OF FEATHERBEDDING IN
SEC. 8(B)(6), MAKING IT AN UNFAIR LABOR PRACTICE "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. 142, 29 U.S.C. 158(B)(6).  THIS NARROW PROHIBITION WAS ENACTED
PARTLY BECAUSE THE CONGRESS FOUND IT DIFFICULT TO DEFINE WITH MORE
PARTICULARITY JUST WHERE THE AREA BETWEEN SHIFTLESSNESS AND OVERWORK
SHOULD LIE.  /12/  SINCE CONGRESS HAS ADDRESSED ITSELF TO THE PROBLEM
SPECIFICALLY AND LEFT A BROAD AREA FOR PRIVATE NEGOTIATION, THERE IS NO
PRESENT OCCASION FOR THE COURTS TO INTERFERE WITH PRIVATE DECISION. 
INDEED, THERE IS NO CLAIM BEFORE US THAT THE RULE VIOLATES SEC.
8(B)(6).  IF THE COMPANY WANTS TO REQUIRE MORE WORK OF ITS EMPLOYEES,
LET IT STRIKE A BETTER BARGAIN.  THE LABOR LAWS AS PRESENTLY DRAWN WILL
NOT DO SO FOR IT. 

THIS LEAVES THE POSSIBLE ARGUMENT THAT BECAUSE THE UNION HAS NOT
SUCCESSFULLY BARGAINED FOR A CONTRACTUAL CEILING, IT MAY NOT IMPOSE ONE
ON ITS OWN MEMBERS, FOR DOING SO WILL DISCRIMINATE BETWEEN MEMBERS AND
THOSE OTHERS WHO ARE FREE TO EARN AS MUCH AS THE CONTRACT PERMITS.  ALL
MEMBERS OF THE BARGAINING UNIT, HOWEVER, HAVE THE SAME CONTRACTUAL
RIGHTS.  IN DEALING WITH THE EMPLOYER AS BARGAINING AGENT, THE UNION
HAS ACCORDED ALL EMPLOYEES UNIFORM TREATMENT.  IF MEMBERS ARE PREVENTED
FROM TAKING ADVANTAGE OF THEIR CONTRACTUAL RIGHTS BARGAINED FOR ALL
EMPLOYEES IT IS BECAUSE THEY HAVE CHOSEN TO BECOME AND REMAIN UNION
MEMBERS.  IN ALLIS-CHALMERS, THE UNION MEMBERS WERE SUBJECT TO THE
DISCIPLINE OF AN INTERNAL RULE WHICH STRENGTHENED THE UNION'S HAND IN
BARGAINING AND IN THIS RESPECT BENEFITED BOTH THE MEMBERS WHO OBEYED
THE RULE AND THE NONMEMBERS WHO DID NOT.  THE SAME IS TRUE HERE, AND
THE PRICE OF OBEYING THE RULE IS NOT AS HIGH AS IN ALLIS-CHALMERS. 
THERE THE MEMBER COULD BE REPLACED FOR HIS REFUSAL TO REPORT TO WORK
DURING A STRIKE; HERE HE NEED SIMPLY LIMIT HIS PRODUCTION AND SUFFER
WHATEVER CONSEQUENCES THAT CONDUCT MAY ENTAIL.  IF A MEMBER CHOOSES NOT
TO ENGAGE IN THIS CONCERTED ACTIVITY AND IS UNABLE TO PREVAIL ON THE
OTHER MEMBERS TO CHANGE THE RULE, THEN HE MAY LEAVE THE UNION AND
OBTAIN WHATEVER BENEFITS IN JOB ADVANCEMENT AND EXTRA PAY MAY RESULT
FROM EXTRA WORK, AT THE SAME TIME ENJOYING THE PROTECTION FROM
COMPETITION, THE HIGH PIECE RATE, AND THE JOB SECURITY WHICH COMPLIANCE
WITH THE UNION RULE BY UNION MEMBERS TENDS TO PROMOTE. 

THAT THE CHOICE TO REMAIN A MEMBER RESULTS IN DIFFERENCES BETWEEN
UNION MEMBERS AND OTHER EMPLOYEES RAISES NO SERIOUS ISSUE UNDER SEC.
8(B)(2) AND SEC. 8(A)(3) OF THE ACT, BECAUSE THE UNION HAS NOT INDUCED
THE EMPLOYER TO DISCRIMINATE AGAINST THE MEMBER BUT HAS MERELY
FORBIDDEN THE MEMBER TO TAKE ADVANTAGE OF BENEFITS WHICH THE EMPLOYER
STANDS WILLING TO CONFER.  THOSE SECTIONS ARE NOT AIMED AT COMPLETELY
INTERNAL UNION DISCIPLINE OF UNION MEMBERS, EVEN THOUGH THE DISCIPLINE
MAY RESULT IN THE MEMBER'S REFUSAL TO ACCEPT WORK OFFERED BY THE
EMPLOYER.  ALLIS-CHALMERS MAKES THIS QUITE CLEAR. 

THE UNION RULE HERE LEFT THE COLLECTIVE BARGAINING PROCESS
UNIMPAIRED, BREACHED NO COLLECTIVE CONTRACT, REQUIRED NO PAY FOR
UNPERFORMED SERVICES, INDUCED NO DISCRIMINATION BY THE EMPLOYER AGAINST
ANY CLASS OF EMPLOYEES, AND REPRESENTS NO DERELICTION BY THE UNION OF
ITS DUTY OF FAIR REPRESENTATION.  IN LIGHT OF THIS, AND THE ACCEPTABLE
MANNER IN WHICH THE RULE WAS ENFORCED, VINDICATING A LEGITIMATE UNION
INTEREST, IT IS IMPOSSIBLE TO SAY THAT IT CONTRAVENED ANY POLICY OF THE
ACT. 

WE AFFIRM, HOLDING THAT THE UNION RULE IS VALID AND THAT ITS
ENFORCEMENT BY REASONABLE FINES DOES NOT CONSTITUTE THE RESTRAINT OR
COERCION PROSCRIBED BY SEC. 8(B)(1)(A). 

              AFFIRMED. 

/1/  THERE IS A UNION SECURITY CLAUSE IN THE CURRENT CONTRACT,
GIVING EACH EMPLOYEE, AFTER A 30-DAY WAITING PERIOD, THE OPTION OF
BECOMING AND REMAINING A MEMBER IN GOOD STANDING OF THE UNION, OR OF
DECLINING MEMBERSHIP BUT PAYING THE UNION A "SERVICE FEE." 

/2/  THERE IS ALSO A "DAY RATE," LOWER THAN THE MACHINE RATE, WHICH
APPLIES TO PERIODS IN WHICH THE INCENTIVE WORKER HAS NOT BEEN
PRODUCING, OR HAS PRODUCED SCRAP, THROUGH NO FAULT OF THE COMPANY'S.
THAT RATE IS OF NO CONCERN HERE. 

/3/  UNLESS THE RULE OR ITS ENFORCEMENT IMPINGES ON SOME POLICY OF
THE FEDERAL LABOR LAW, THE REGULATION OF THE RELATIONSHIP BETWEEN UNION
AND EMPLOYEE IS A CONTRACTUAL MATTER GOVERNED BY LOCAL LAW.  AS THE
TRIAL EXAMINER PUT IT IN THIS CASE, THE BOARD "NEVER INTENDED . . . TO
SUGGEST THAT THE DISCIPLINARY ACTIONS) IN ENFORCEMENT OF (UNION) RULES
. . . WERE AFFIRMATIVELY PROTECTED UNDER THE ACT, AS OPPOSED TO MERELY
BEING NOT VIOLATIONS THEREOF."  IT IS THUS A "FEDERALLY UNENTERED
ENCLAVE" OPEN TO STATE LAW.  145 N.L.R.B.,AT 1133. 

/4/  THE BOARD HAS LONG HELD THAT SEC. 8(B)(1)(A)'S LEGISLATIVE
HISTORY REQUIRES A NARROW CONSTRUCTION WHICH NEVERTHELESS PROSCRIBES
UNACCEPTABLE METHODS OF UNION COERCION, SUCH AS PHYSICAL VIOLENCE TO
INDUCE EMPLOYEES TO JOIN THE UNION OR TO JOIN IN A STRIKE.  IN RE
MARITIME UNION, 78 N.L.R.B. 971, ENFORCED, 175 F.2D 686 (CA. 2D CIR.
1949). 

/5/  THE COURT HAS HELD THAT THE "POLICY OF THE ACT IS TO INSULATE
EMPLOYEES' JOBS FROM THEIR ORGANIZATIONAL RIGHTS."  RADIO OFFICERS'
UNION V. NATIONAL LABOR RELATIONS BOARD, 347 U.S. 17, 40 (1954).  AS AN
EMPLOYEE, HE MAY BE A "GOOD, BAD, OR INDIFFERENT" MEMBER SO LONG AS HE
MEETS THE FINANCIAL OBLIGATIONS OF THE UNION SECURITY CONTRACT.  THUS
THE BOARD HAS FOUND AN UNFAIR LABOR PRACTICE BY UNION AND EMPLOYER
WHERE AN EMPLOYEE WAS DISCHARGED FOR VIOLATION OF A UNION RULE LIMITING
PRODUCTION.  PRINTZ LEATHER CO., 94 N.L.R.B. 1312 (1951).  BUT AS A
UNION MEMBER, SO LONG AS HE CHOOSES TO REMAIN ONE, HE IS SUBJECT TO
UNION DISCIPLINE. 

/6/  AS PART OF THE BILL OF RIGHTS OF UNION MEMBERS, THE LANDRUM
GRIFFIN ACT GUARANTEED FREEDOM OF SPEECH AND ASSEMBLY "PROVIDED, THAT
NOTHING HEREIN SHALL BE CONSTRUED TO IMPAIR THE RIGHT OF A LABOR
ORGANIZATION TO ADOPT AND ENFORCE REASONABLE RULES AS TO THE
RESPONSIBILITY OF EVERY MEMBER TOWARD THE ORGANIZATION AS AN
INSTITUTION AND TO HIS REFRAINING FROM CONDUCT THAT WOULD INTERFERE
WITH ITS PERFORMANCE OF ITS LEGAL OR CONTRACTUAL OBLIGATION."  PUB. L.
86-257, TIT. I, SEC. 101(A)(2), 73 STAT. 522, 29 U.S.C. 411(A)(2). 

/7/  LOCAL 138, INTERNATIONAL UNION OF OPERATING ENGINEERS, 148
N.L.R.B. 679 (1964). 

/8/  INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA,
159 N.L.R.B. 1065 (1966). 

/9/  NATIONAL LABOR RELATIONS BOARD V. INDUSTRIAL UNION OF MARINE &
SHIPBUILDING WORKERS, 391 U.S. 418 (1968). 

/10/  THE COMPANY PREFERS TO EMPLOY THE MINIMUM NUMBER OF THE MOST
ENERGETIC MEN AVAILABLE; A PIECEWORK PAY SCHEME WITHOUT A CEILING COULD
HELP IT OBTAIN ITS OBJECTIVE OF WINNOWING THE MEN AND REDUCING THEIR
PIECEWORK RATE.  EACH EMPLOYEE, AS WELL, HAS AN INTEREST IN THE
CEILING.  A SLOW WORKER WOULD PREFER A LOW CEILING TO PROTECT HIMSELF
AGAINST INVIDIOUS COMPARISON WITH FASTER WORKERS AND A POSSIBLE
REDUCTION OF THE WORK FORCE BEGINNING WITH HIM.  A FAST WORKER MAY
PREFER TO EARN AS MUCH AS POSSIBLE IN A DAY AND SO DESIRE A HIGH
CEILING OR NONE AT ALL.  BUT ALL WORKERS HAVE AN INTEREST IN
MAINTAINING A CEILING TO THE EXTENT THAT IT IS NECESSARY TO PREVENT
REDUCTIONS IN THE PIECEWORK RATE.  THE EMPLOYER AND THE UNION
(REPRESENTING THE GROUP) MAY SEEK TO VINDICATE THEIR INTERESTS IN
BARGAINING.  THE INDIVIDUAL MEMBER MAY EXPRESS HIS INTEREST WITHIN THE
UNION COUNCILS IN DETERMINING WHAT THE GROUP POSITION SHALL BE-- AND
HERE THE TRIAL EXAMINER FOUND THAT THE EMPLOYEES OVERWHELMINGLY
APPROVED OF THE CEILING-- OR THROUGH EXERCISING THE OPTION OF
WITHDRAWING FROM THE UNION. 

/11/  THE TRIAL EXAMINER SUGGESTS THAT IF THE CEILINGS DID NOT
EXIST, THE MANAGEMENT MIGHT WELL INVENT THEM TO SERVE ITS OWN PURPOSES:
MAINTAINING CAREFUL WORK STANDARDS AND A LOW SCRAP RATE, AND
PERMITTING THE PREDICTION OF PRODUCTION OUTPUT.  145 N.L.R.B.,AT 1119
1120. 

/12/  SENATOR TAFT, CO-SPONSOR OF THE BILL AND CHAIRMAN OF THE
SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, STATED ON THE FLOOR OF
THE SENATE THAT TO DO MORE "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."  BY CONTRAST, HE SAID, "WE DID ACCEPT ONE PROVISION" WHICH
"SEEMED TO BE A FAIRLY CLEAR CASE, EASY TO DETERMINE" AND NARROW.  93
CONG.REC.  6441. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

BECAUSE THE UNION MEMBERS COLLECTED FROM THEIR EMPLOYER EXTRA PAY FOR
PIECEWORK PRODUCTION IN EXCESS OF THAT AGREED UPON BY THE UNION AND THE
COMPANY, THE UNION HAS TRIED THE MEMBERS, FINED THEM, AND SUSPENDED
THEM FROM THE UNION FOR ONE YEAR.  SECTION 8(B)(1) OF THE NATIONAL
LABOR RELATIONS ACT MAKES IT AN UNFAIR LABOR PRACTICE FOR A UNION TO
"RESTRAIN OR COERCE" EMPLOYEES IN THE EXERCISE OF THEIR RIGHT UNDER
SEC. 7 TO REFRAIN FROM ANY OR ALL CONCERTED ACTIVITIES.  IN THIS CASE
THE NATIONAL LABOR RELATIONS BOARD HELD THAT THE UNION DID NOT COMMIT
AN UNFAIR LABOR PRACTICE IN COERCING EMPLOYEES THROUGH FINES AND
SUSPENSIONS INTO REFUSING TO ENGAGE IN THIS CONCERTED ACTIVITY.  I
DISSENT FROM AFFIRMING THIS ORDER OF THE BOARD FOR THE REASONS SET OUT
AT LENGTH IN MY DISSENTING OPINION IN NLRB V. ALLIS-CHALMERS MFG. CO.,
388 U.S. 175, 199 (1967). 

JAMES URDAN ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONERS. 

NORTON J. COME ARGUED THE CAUSE FOR RESPONDENT NATIONAL LABOR
RELATIONS BOARD.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ARNOLD ORDMAN, AND DOMINICK L. MANOLI.  JOHN SILARD ARGUED
THE CAUSE FOR RESPONDENT INTERNATIONAL UNION, UNITED AUTOMOBILE
WORKERS.  WITH HIM ON THE BRIEF WERE JOSEPH L. RAUH, JR., AND STEPHEN
I. SCHLOSSBERG. 

WALTER S. DAVIS FILED A BRIEF FOR THE WISCONSIN MANUFACTURERS ASSN.
ET AL. AS AMICI CURIAE URGING REVERSAL. 
..END :







CARDINALE V. LOUISIANA, 394 U.S. 437 


       CARDINALE V. LOUISIANA. 

        CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

        NO. 76.  ARGUED FEBRUARY 24, 1969.-- DECIDED APRIL 1,
1969. 


SINCE PETITIONER'S CONTENTION THAT A LOUISIANA STATUTE REQUIRING THAT
CONFESSIONS BE ADMITTED INTO EVIDENCE IN THEIR ENTIRETY NOTWITHSTANDING
THEIR INCLUSION OF IRRELEVANT AND PREJUDICIAL MATERIAL IS
UNCONSTITUTIONAL-- THE SOLE FEDERAL QUESTION ARGUED IN THIS COURT-- WAS
NOT RAISED, PRESERVED, OR PASSED ON IN THE STATE COURTS, THE WRIT OF
CERTIORARI IS DISMISSED FOR WANT OF JURISDICTION, AS THIS COURT WILL
NOT DECIDE FEDERAL QUESTIONS RAISED HERE FOR THE FIRST TIME ON REVIEW
OF STATE COURT DECISIONS.  PP. 438-439. 

251 LA. 827, 206 SO.2D 510, CERTIORARI DISMISSED FOR WANT OF
JURISDICTION. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONER BRUTALLY MURDERED A WOMAN NEAR NEW ORLEANS, AND THEN FLED
THE STATE.  HE HAD BEEN SEEN WITH HIS VICTIM, AND A WARRANT WAS ISSUED
FOR HIS ARREST.  IN THE COURSE OF HIS FLIGHT PETITIONER CAME TO TUCSON,
ARIZONA, WHERE HE DECIDED TO SURRENDER.  HE FLAGGED DOWN A POLICE CAR
AND, AFTER AN INTERRUPTION BY THE POLICE TO WARN HIM THAT HE NEED NOT
SPEAK, THAT HIS SPEECH MIGHT BE USED AGAINST HIM, AND THAT HE HAD A
RIGHT TO CONTACT AN ATTORNEY, WAS TAKEN TO THE STATION HOUSE WHERE HE
POURED OUT A CONFESSION.  HIS CONFESSION WAS INTRODUCED IN ITS ENTIRETY
IN THE SUBSEQUENT TRIAL FOR MURDER IN WHICH PETITIONER WAS CONVICTED
AND SENTENCED TO DEATH.  PETITIONER DOES NOT NOW CONTEND THAT HIS
CONFESSION WAS INVOLUNTARY OR THAT HIS ADMISSION OF GUILT TO THE TUCSON
POLICY WAS INADMISSIBLE IN EVIDENCE.  HE OBJECTS SOLELY TO THE
ADMISSION OF THOSE PARTS OF HIS CONFESSION WHICH HE ARGUES WERE BOTH
IRRELEVANT AND PREJUDICIAL IN HIS TRIAL FOR MURDER.  A LOUISIANA
STATUTE REQUIRES THAT CONFESSIONS MUST BE ADMITTED IN THEIR ENTIRETY,
LA. REV. STAT. SEC. 15:450, AND PETITIONER CONTENDS THAT THIS IS
UNCONSTITUTIONAL. 

ALTHOUGH CERTIORARI WAS GRANTED TO CONSIDER THIS QUESTION, THE FACT
EMERGED IN ORAL ARGUMENT THAT THE SOLE FEDERAL QUESTION ARGUED HERE HAD
NEVER BEEN RAISED, PRESERVED, OR PASSED UPON IN THE STATE COURTS
BELOW.  IT WAS VERY EARLY ESTABLISHED THAT THE COURT WILL NOT DECIDE
FEDERAL CONSTITUTIONAL ISSUES RAISED HERE FOR THE FIRST TIME ON REVIEW
OF STATE COURT DECISIONS.  IN CROWELL V. RANDELL, 10 PET. 368 (1836),
JUSTICE STORY REVIEWED THE EARLIER CASES COMMENCING WITH OWINGS V.
NORWOOD'S LESSEE, 5 CRANCH 344 (1809), AND CAME TO THE CONCLUSION THAT
THE JUDICIARY ACT OF 1789, C. 20, SEC. 25, 1 STAT. 85, VESTED THIS
COURT WITH NO JURISDICTION UNLESS A FEDERAL QUESTION WAS RAISED AND
DECIDED IN THE STATE COURT BELOW.  "IF BOTH OF THESE DO NOT APPEAR ON
THE RECORD, THE APPELLATE JURISDICTION FAILS."  10 PET. 368, 391.  THE
COURT HAS CONSISTENTLY REFUSED TO DECIDE FEDERAL CONSTITUTIONAL ISSUES
RAISED HERE FOR THE FIRST TIME ON REVIEW OF STATE COURT DECISIONS BOTH
BEFORE THE CROWELL OPINION, MILLER V. NICHOLLS, 4 WHEAT.  311, 315
(1819), AND SINCE, E.G., SAFEWAY STORES, INC. V. OKLAHOMA RETAIL
GROCERS ASSN., INC., 360 U.S. 334, 342, N. 7 (1959); STATE FARM MUTUAL
AUTOMOBILE INS. CO. V. DUEL, 324 U.S. 154, 160-163 (1945); MCGOLDRICK
V. CAMPAGNIE GENERALE TRANSATLANTIQUE, 309 U.S. 430, 434-435 (1940);
WHITNEY V. CALIFORNIA, 274 U.S. 357, 362-363 (1927); DEWEY V. DES
MOINES, 173 U.S. 193, 197-201 (1899); MURDOCK V. CITY OF MEMPHIS, 20
WALL.  590 (1875). 

IN ADDITION TO THE QUESTION OF JURISDICTION ARISING UNDER THE
STATUTE CONTROLLING OUR POWER TO REVIEW FINAL JUDGMENTS OF STATE
COURTS, 28 U.S.C. 1257, THERE ARE SOUND REASONS FOR THIS.  QUESTIONS
NOT RAISED BELOW ARE THOSE ON WHICH THE RECORD IS VERY LIKELY TO BE
INADEQUATE, SINCE IT CERTAINLY WAS NOT COMPILED WITH THOSE QUESTIONS IN
MIND.  AND IN A FEDERAL SYSTEM IT IS IMPORTANT THAT STATE COURTS BE
GIVEN THE FIRST OPPORTUNITY TO CONSIDER THE APPLICABILITY OF STATE
STATUTES IN LIGHT OF CONSTITUTIONAL CHALLENGE, SINCE THE STATUTES MAY
BE CONSTRUED IN A WAY WHICH SAVES THEIR CONSTITUTIONALITY.  OR THE
ISSUE MAY BE BLOCKED BY AN ADEQUATE STATE GROUND.  EVEN THOUGH STATES
ARE NOT FREE TO AVOID CONSTITUTIONAL ISSUES ON INADEQUATE STATE
GROUNDS, O'CONNOR V. OHIO, 385 U.S. 92 (1966), THEY SHOULD BE GIVEN THE
FIRST OPPORTUNITY TO CONSIDER THEM. 

IN VIEW OF THE PETITIONER'S ADMITTED FAILURE TO RAISE THE ISSUE HE
PRESENTS HERE IN ANY WAY BELOW, THE FAILURE OF THE STATE COURT TO PASS
ON THIS ISSUE, THE DESIRABILITY OF GIVING THE STATE THE FIRST
OPPORTUNITY TO APPLY ITS STATUTE ON AN ADEQUATE RECORD, AND THE FACT
THAT A FEDERAL HABEAS REMEDY MAY REMAIN IF NO STATE PROCEDURE FOR
RAISING THE ISSUE IS AVAILABLE TO PETITIONER, THE WRIT IS DISMISSED FOR
WANT OF JURISDICTION. 

              IT IS SO ORDERED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE FORTAS
CONCUR IN THE DISMISSAL OF THE WRIT, BELIEVING IT TO HAVE BEEN
IMPROVIDENTLY GRANTED. 

NATHAN GREENBERG ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

PRESTON H. HUFFT ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA,
WILLIAM P. SCHULER, SECOND ASSISTANT ATTORNEY GENERAL, AND LEANDER H.
PEREZ, JR.
..END :



















FOSTER V. CALIFORNIA, 394 U.S. 440 


       FOSTER V. CALIFORNIA. 

        CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIFTH

           APPELLATE DISTRICT. 

        NO. 47.  ARGUED NOVEMBER 19, 1968.-- DECIDED APRIL 1,
1969. 


PETITIONER WAS CONVICTED OF ROBBERY OF A WESTERN UNION OFFICE.  THE
OFFICE MANAGER VIEWED A POLICE STATION LINEUP OF THREE MEN, PETITIONER
(WHO IS ALMOST SIX FEET TALL AND WHO WAS WEARING A LEATHER JACKET
SIMILAR TO ONE WORN BY THE ROBBER) AND TWO MUCH SHORTER MEN.  THE
MANAGER COULD NOT POSITIVELY IDENTIFY PETITIONER AS THE ROBBER AND
ASKED FOR AND WAS GIVEN A CHANCE TO SPEAK TO HIM.  PETITIONER WAS
BROUGHT INTO AN OFFICE ALONE AND SEATED ACROSS FROM THE MANAGER AT A
TABLE.  THE MANAGER WAS STILL UNCERTAIN.  ABOUT A WEEK LATER HE VIEWED
ANOTHER LINEUP, OF PETITIONER AND FOUR DIFFERENT MEN.  THIS TIME THE
MANAGER WAS "CONVINCED" PETITIONER WAS THE ROBBER.  HE TESTIFIED TO THE
LINEUP IDENTIFICATIONS AT THE TRIAL AND REPEATED HIS IDENTIFICATION IN
THE COURTROOM.  HELD: 

1.  ALTHOUGH THE RULE THAT AN ACCUSED MUST BE GIVEN THE OPPORTUNITY
TO BE REPRESENTED BY COUNSEL AT A LINEUP DOES NOT APPLY TO LINEUPS
CONDUCTED PRIOR TO JUNE 12, 1967, STOVALL V. DENNO, 388 U.S. 293, THE
CONDUCT OF IDENTIFICATION PROCEDURES MUST NOT BE "SO UNNECESSARILY
SUGGESTIVE AND CONDUCIVE TO IRREPARABLE MISTAKEN IDENTIFICATION" AS TO
BE A DENIAL OF DUE PROCESS OF LAW.  ID., AT 302.  P. 442. 

2.  THE SUGGESTIVE ELEMENTS IN THE REPEATED CONFRONTATIONS THE
POLICE ARRANGED BETWEEN THE MANAGER AND PETITIONER SO UNDERMINED THE
RELIABILITY OF THE EYEWITNESS IDENTIFICATION AS TO VIOLATE DUE
PROCESS.  PP. 442-443. 

3.  THE QUESTION OF WHETHER THE ERROR WAS HARMLESS UNDER CHAPMAN V.
CALIFORNIA, 386 U.S. 18, SHOULD BE DETERMINED IN THE FIRST INSTANCE BY
THE CALIFORNIA COURTS.  P. 444. 

REVERSED AND REMANDED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CHARGED BY INFORMATION WITH THE ARMED ROBBERY OF A
WESTERN UNION OFFICE IN VIOLATION OF CALIFORNIA PENAL CODE SEC. 211A. 
THE DAY AFTER THE ROBBERY ONE OF THE ROBBERS, CLAY, SURRENDERED TO THE
POLICE AND IMPLICATED FOSTER AND GRICE.  ALLEGEDLY, FOSTER AND CLAY HAD
ENTERED THE OFFICE WHILE GRICE WAITED IN A CAR.  FOSTER AND GRICE WERE
TRIED TOGETHER.  GRICE WAS ACQUITTED.  FOSTER WAS CONVICTED.  THE
CALIFORNIA DISTRICT COURT OF APPEAL AFFIRMED THE CONVICTION; THE STATE
SUPREME COURT DENIED REVIEW.  WE GRANTED CERTIORARI, LIMITED TO THE
QUESTION WHETHER THE CONDUCT OF THE POLICE LINEUP RESULTED IN A
VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHTS.  390 U.S. 994 (1968). 

EXCEPT FOR THE ROBBERS THEMSELVES, THE ONLY WITNESS TO THE CRIME WAS
JOSEPH DAVID, THE LATE-NIGHT MANAGER OF THE WESTERN UNION OFFICE. 
AFTER FOSTER HAD BEEN ARRESTED, DAVID WAS CALLED TO THE POLICE STATION
TO VIEW A LINEUP.  THERE WERE THREE MEN IN THE LINEUP.  ONE WAS
PETITIONER.  HE IS A TALL MAN-- CLOSE TO SIX FEET IN HEIGHT.  THE OTHER
TWO MEN WERE SHORT-- FIVE FEET, FIVE OR SIX INCHES.  PETITIONER WORE A
LEATHER JACKET WHICH DAVID SAID WAS SIMILAR TO THE ONE HE HAD SEEN
UNDERNEATH THE COVERALLS WORN BY THE ROBBER.  AFTER SEEING THIS LINEUP,
DAVID COULD NOT POSITIVELY IDENTIFY PETITIONER AS THE ROBBER.  HE
"THOUGHT" HE WAS THE MAN, BUT HE WAS NOT SURE.  DAVID THEN ASKED TO
SPEAK TO PETITIONER AND PETITIONER WAS BROUGHT INTO AN OFFICE AND SAT
ACROSS FROM DAVID AT A TABLE.  EXCEPT FOR PROSECUTING OFFICIALS THERE
WAS NO ONE ELSE IN THE ROOM.  EVEN AFTER THIS ONE-TO-ONE CONFRONTATION
DAVID STILL WAS UNCERTAIN WHETHER PETITIONER WAS ONE OF THE ROBBERS:
"TRUTHFULLY-- I WAS NOT SURE," HE TESTIFIED AT TRIAL.  A WEEK OR 10
DAYS LATER, THE POLICE ARRANGED FOR DAVID TO VIEW A SECOND LINEUP. 
THERE WERE FIVE MEN IN THAT LINEUP.  PETITIONER WAS THE ONLY PERSON IN
THE SECOND LINEUP WHO HAD APPEARED IN THE FIRST LINEUP.  THIS TIME
DAVID WAS "CONVINCED" PETITIONER WAS THE MAN. 

AT TRIAL, DAVID TESTIFIED TO HIS IDENTIFICATION OF PETITIONER IN THE
LINEUPS, AS SUMMARIZED ABOVE.  HE ALSO REPEATED HIS IDENTIFICATION OF
PETITIONER IN THE COURTROOM.  THE ONLY OTHER EVIDENCE AGAINST
PETITIONER WHICH CONCERNED THE PARTICULAR ROBBERY WITH WHICH HE WAS
CHARGED WAS THE TESTIMONY OF THE ALLEGED ACCOMPLICE CLAY.  /1/ 

IN UNITED STATES V. WADE, 388 U.S. 218 (1967), AND GILBERT V.
CALIFORNIA, 388 U.S. 263 (1967), THIS COURT HELD THAT BECAUSE OF THE
POSSIBILITY OF UNFAIRNESS TO THE ACCUSED IN THE WAY A LINEUP IS
CONDUCTED, A LINEUP IS A "CRITICAL STAGE" IN THE PROSECUTION, AT WHICH
THE ACCUSED MUST BE GIVEN THE OPPORTUNITY TO BE REPRESENTED BY
COUNSEL.  THAT HOLDING DOES NOT, HOWEVER, APPLY TO PETITIONER'S CASE,
FOR THE LINEUPS IN WHICH HE APPEARED OCCURRED BEFORE JUNE 12, 1967. 
STOVALL V. DENNO, 388 U.S. 293 (1967).  BUT IN DECLARING THE RULE OF
WADE AND GILBERT TO BE APPLICABLE ONLY TO LINEUPS CONDUCTED AFTER THOSE
CASES WERE DECIDED, WE RECOGNIZED THAT, JUDGED BY THE "TOTALITY OF THE
CIRCUMSTANCES," THE CONDUCT OF IDENTIFICATION PROCEDURES MAY BE "SO
UNNECESSARILY SUGGESTIVE AND CONDUCIVE TO IRREPARABLE MISTAKEN
IDENTIFICATION" AS TO BE A DENIAL OF DUE PROCESS OF LAW.  ID., AT 302. 
SEE SIMMONS V. UNITED STATES, 390 U.S. 377, 383 (1968); CF. P. WALL,
EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES; J. FRANK & B. FRANK, NOT
GUILTY; 3 J.WIGMORE,EVIDENCE 786A (3D ED. 1940); 4, ID., SEC. 1130. 

JUDGED BY THAT STANDARD, THIS CASE PRESENTS A COMPELLING EXAMPLE OF
UNFAIR LINEUP PROCEDURES.  /2/  IN THE FIRST LINEUP ARRANGED BY THE
POLICE, PETITIONER STOOD OUT FROM THE OTHER TWO MEN BY THE CONTRAST OF
HIS HEIGHT AND BY THE FACT THAT HE WAS WEARING A LEATHER JACKET SIMILAR
TO THAT WORN BY THE ROBBER.  SEE UNITED STATES V. WADE, SUPRA, AT 233. 
WHEN THIS DID NOT LEAD TO POSITIVE IDENTIFICATION, THE POLICE PERMITTED
A ONE-TO-ONE CONFRONTATION BETWEEN PETITIONER AND THE WITNESS.  THIS
COURT POINTED OUT IN STOVALL THAT "(THE PRACTICE OF SHOWING SUSPECTS
SINGLY TO PERSONS FOR THE PURPOSE OF IDENTIFICATION, AND NOT AS PART OF
A LINEUP, HAS BEEN WIDELY CONDEMNED."  388 U.S.,AT 302.  EVEN AFTER
THIS THE WITNESS' IDENTIFICATION OF PETITIONER WAS TENTATIVE.  SO SOME
DAYS LATER ANOTHER LINEUP WAS ARRANGED.  PETITIONER WAS THE ONLY PERSON
IN THIS LINEUP WHO HAD ALSO PARTICIPATED IN THE FIRST LINEUP.  SEE
WALL, SUPRA, AT 64.  THIS FINALLY PRODUCED A DEFINITE IDENTIFICATION. 

THE SUGGESTIVE ELEMENTS IN THIS IDENTIFICATION PROCEDURE MADE IT ALL
BUT INEVITABLE THAT DAVID WOULD IDENTIFY PETITIONER WHETHER OR NOT HE
WAS IN FACT "THE MAN."  IN EFFECT, THE POLICE REPEATEDLY SAID TO THE
WITNESS, "THIS IS THE MAN."  SEE BIGGERS V. TENNESSEE, 390 U.S. 404,
407 (DISSENTING OPINION).  THIS PROCEDURE SO UNDERMINED THE RELIABILITY
OF THE EYEWITNESS IDENTIFICATION AS TO VIOLATE DUE PROCESS. 

IN A DECISION HANDED DOWN SINCE THE SUPREME COURT OF CALIFORNIA
DECLINED TO CONSIDER PETITIONER'S CASE, IT REVERSED A CONVICTION
BECAUSE OF THE UNFAIR MAKEUP OF A LINEUP.  IN THAT CASE, THE CALIFORNIA
COURT SAID:  "(WE DO NO MORE THAN RECOGNIZE . . . THAT UNFAIRLY
CONSTITUTED LINEUPS HAVE IN THE PAST TOO OFTEN BROUGHT ABOUT THE
CONVICTION OF THE INNOCENT."  PEOPLE V. CARUSO, 68 CAL.2D 183, 188, 436
P.2D 336, 340 (1968).  IN THE PRESENT CASE THE PRETRIAL CONFRONTATIONS
CLEARLY WERE SO ARRANGED AS TO MAKE THE RESULTING IDENTIFICATIONS
VIRTUALLY INEVITABLE. 

THE RESPONDENT INVITES US TO HOLD THAT ANY ERROR WAS HARMLESS UNDER
CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1967).  WE DECLINE TO RULE UPON
THIS QUESTION IN THE FIRST INSTANCE.  ACCORDINGLY, THE JUDGMENT IS
REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  CALIFORNIA LAW REQUIRES THAT AN ACCOMPLICE'S TESTIMONY BE
CORROBORATED.  CALIFORNIA PENAL CODE SEC. 1111.  THERE WAS ALSO
EVIDENCE THAT FOSTER HAD BEEN CONVICTED FOR A SIMILAR ROBBERY COMMITTED
SIX YEARS BEFORE. 

/2/  THE RELIABILITY OF PROPERLY ADMITTED EYEWITNESS IDENTIFICATION,
LIKE THE CREDIBILITY OF THE OTHER PARTS OF THE PROSECUTION'S CASE IS A
MATTER FOR THE JURY.  BUT IT IS THE TEACHING OF WADE, GILBERT, AND
STOVALL, SUPRA, THAT IN SOME CASES THE PROCEDURES LEADING TO AN
EYEWITNESS IDENTIFICATION MAY BE SO DEFECTIVE AS TO MAKE THE
IDENTIFICATION CONSTITUTIONALLY INADMISSIBLE AS A MATTER OF LAW. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART CONCUR, BEING UNWILLING IN THIS CASE TO DISAGREE WITH THE JURY
ON THE WEIGHT OF THE EVIDENCE, WOULD AFFIRM THE JUDGMENT. 

MR. JUSTICE BLACK, DISSENTING. 

THE COURT HERE DIRECTS THE CALIFORNIA COURTS TO SET ASIDE PETITIONER
FOSTER'S CONVICTION FOR ARMED ROBBERY OF THE WESTERN UNION TELEGRAPH
CO. AT FRESNO, CALIFORNIA.  THE NIGHT MANAGER OF THE TELEGRAPH COMPANY
TESTIFIED BEFORE THE COURT AND JURY THAT TWO MEN CAME INTO THE OFFICE
JUST AFTER MIDNIGHT, JANUARY 25, 1966, WROTE A NOTE TELLING HIM IT WAS
A HOLDUP, PUT IT UNDER HIS FACE, AND DEMANDED MONEY, FLASHED GUNS, TOOK
$531 AND FLED.  THE NIGHT MANAGER IDENTIFIED FOSTER IN THE COURTROOM AS
ONE OF THE MEN, AND HE ALSO RELATED HIS IDENTIFICATION OF FOSTER IN A
LINEUP A WEEK OR SO AFTER THE CRIME.  THE MANAGER'S EVIDENCE, WHICH NO
WITNESS DISPUTED, WAS CORROBORATED BY THE TESTIMONY OF A MAN NAMED
CLAY, WHO WAS FOSTER'S ACCOMPLICE IN THE ROBBERY AND WHO TESTIFIED FOR
THE STATE.  THE TESTIMONY OF THESE TWO EYEWITNESSES WAS ALSO
CORROBORATED BY PROOF THAT FOSTER AND ANOTHER PERSON HAD COMMITTED A
PRIOR ARMED ROBBERY OF A WESTERN UNION OFFICE IN ANOTHER CITY SIX YEARS
BEFORE, WHEN THEY APPEARED AT THE COMPANY'S OFFICE, PRESENTED A NOTE TO
AN EMPLOYEE ANNOUNCING THEIR HOLDUP, FLASHED A GUN, AND FLED WITH
COMPANY MONEY.  IN THIS CASE FOSTER'S ATTORNEY ADMITTED CONVICTION FOR
THE PRIOR WESTERN UNION ARMED ROBBERY.  /1/  THE CIRCUMSTANCES OF THE
TWO ROBBERIES APPEAR TO HAVE BEEN PRACTICALLY INDISTINGUISHABLE.  SUCH
EVIDENCE THAT A PARTICULAR PERSON COMMITTED A PRIOR CRIME HAS BEEN
ALMOST UNIVERSALLY ACCEPTED AS RELEVANT AND ADMISSIBLE TO PROVE THAT
THE SAME PERSON WAS RESPONSIBLE FOR A LATER CRIME OF THE SAME NATURE. 
/2/  A NARRATION OF THESE FACTS, FALLING FROM THE LIPS OF EYEWITNESSES,
AND NOT DENIED BY OTHER EYEWITNESSES, WOULD BE ENOUGH, I AM CONVINCED,
TO PERSUADE NEARLY ALL LAWYERS AND JUDGES, UNHESITATINGLY TO SAY,
"THERE WAS CLEARLY ENOUGH EVIDENCE OF GUILT HERE FOR A JURY TO CONVICT
THE DEFENDANT SINCE, ACCORDING TO PRACTICE, AND INDEED CONSTITUTIONAL
COMMAND, THE WEIGHT OF EVIDENCE IS FOR A JURY, AND NOT FOR JUDGES." 
NEVERTHELESS THE COURT IN THIS CASE LOOKS BEHIND THE EVIDENCE GIVEN BY
WITNESSES ON THE STAND AND DECIDES THAT BECAUSE OF THE CIRCUMSTANCES
UNDER WHICH ONE WITNESS FIRST IDENTIFIED THE DEFENDANT AS THE CRIMINAL,
THE UNITED STATES CONSTITUTION REQUIRES THAT THE CONVICTION BE
REVERSED.  THE COURT, HOWEVER, FAILS TO SPELL OUT EXACTLY WHAT SHOULD
HAPPEN TO THIS DEFENDANT IF THERE MUST BE A RETRIAL, AND THUS AVOIDS
THE APPARENTLY DISTASTEFUL TASK OF SPECIFYING WHETHER (1) AT THE NEW
TRIAL THE JURY WOULD AGAIN BE PERMITTED TO HEAR THE EYEWITNESS'
TESTIMONY AND THE IN-COURT IDENTIFICATION, SO LONG AS HE DOES NOT REFER
TO THE PREVIOUS LINEUPS, OR (2) THE EYEWITNESS'"TAINTED" IDENTIFICATION
TESTIMONY MUST BE ENTIRELY EXCLUDED, THUS COMPELLING FOSTER'S
ACQUITTAL.  OBJECTION TO THIS AMBIGUITY IS THE FIRST OF MY REASONS FOR
DISSENT. 

        I. 

THE COURT DECLARES THE JUDGMENT OF CONVICTION IS REVERSED AND THE
CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  I AM COMPELLED TO SAY THAT IF I WERE THE TRIAL JUDGE IN THIS
CASE I WOULD NOT KNOW HOW TO PROCEED OR HOW TO DECIDE WHETHER THE
"ERROR" IN THIS CASE WAS HARMLESS.  OF COURSE, WHEN A CONFESSION IS
HELD TO HAVE BEEN COMPELLED, THAT CONFESSION MUST NOT BE ADMITTED TO
CONVICT THE DEFENDANT AT ALL.  BUT THE SITUATION IN THIS CASE IS NOT
THAT SIMPLE.  FOR THE COURT HAS IN EFFECT DECIDED HERE THAT THE
OFFICERS OF THE LAW HAVE SO "ARRANGED" LINEUPS THAT THE EYEWITNESS TO
THE ROBBERY HAS BEEN LED TO MAKE AN "IRREPARABLE MISTAKEN
IDENTIFICATION."  IN OTHER WORDS, NO ONE NOW OR HEREAFTER CAN BELIEVE
HIS IDENTIFICATION OF FOSTER AS THE ROBBER.  SINCE HE AND THE
ACCOMPLICE ARE THE ONLY EYEWITNESSES, AND SINCE, IN ORDER TO CONVICT,
CALIFORNIA LAW REQUIRES EVIDENCE OF AN ACCOMPLICE TO BE CORROBORATED,
THE COURT'S DIRECTION MEANS, I SUPPOSE, THAT THE TRIAL JUDGE HERE
SHOULD DISMISS THE CASE.  /3/  THE COURT'S DILEMMA, WHICH LEADS TO ITS
AMBIGUOUS JUDGMENT AS TO THE FURTHER DISPOSITION OF THIS CASE, POINTS,
I THINK, TO THE IRREPARABLE HARM DONE TO THE CAUSE OF JUSTICE BY THE
COURT'S HOLDING IN THIS CASE. 

   II. 

FAR MORE FUNDAMENTAL, HOWEVER, IS MY OBJECTION TO THE COURT'S BASIC
HOLDING THAT EVIDENCE CAN BE RULED CONSTITUTIONALLY INADMISSIBLE
WHENEVER IT RESULTS FROM IDENTIFICATION PROCEDURES THAT THE COURT
CONSIDERS TO BE "'UNNECESSARILY SUGGESTIVE AND CONDUCIVE TO IRREPARABLE
MISTAKEN IDENTIFICATION.'"  /4/  ONE OF THE PROUDEST ACHIEVEMENTS OF
THIS COUNTRY'S FOUNDERS WAS THAT THEY HAD ETERNALLY GUARANTEED A TRIAL
BY JURY IN CRIMINAL CASES, AT LEAST UNTIL THE CONSTITUTION THEY WROTE
HAD BEEN AMENDED IN THE MANNER THEY PRESCRIBED.  ONLY LAST YEAR IN
DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), THIS COURT EMPHATICALLY
DECIDED, OVER STRONG DISSENTS, THAT THIS CONSTITUTIONAL RIGHT TO TRIAL
BY JURY IN CRIMINAL CASES IS APPLICABLE TO THE STATES.  OF COURSE IT IS
AN INCONTESTABLE FACT IN OUR JUDICIAL HISTORY THAT THE JURY IS THE SOLE
TRIBUNAL TO WEIGH AND DETERMINE FACTS.  THAT MEANS THAT THE JURY MUST,
IF WE KEEP FAITH WITH THE CONSTITUTION, BE ALLOWED TO HEAR EYEWITNESSES
AND DECIDE FOR ITSELF WHETHER IT CAN RECOGNIZE THE TRUTH AND WHETHER
THEY ARE TELLING THE TRUTH.  IT MEANS THAT THE JURY MUST BE ALLOWED TO
DECIDE FOR ITSELF WHETHER THE DARKNESS OF THE NIGHT, THE WEAKNESS OF A
WITNESS' EYESIGHT, OR ANY OTHER FACTOR IMPAIRED THE WITNESS' ABILITY TO
MAKE AN ACCURATE IDENTIFICATION.  TO TAKE THAT POWER AWAY FROM THE JURY
IS TO ROB IT OF THE RESPONSIBILITY TO PERFORM THE PRECISE FUNCTIONS THE
FOUNDERS MOST WANTED IT TO PERFORM.  AND CERTAINLY A CONSTITUTION
WRITTEN TO PRESERVE THIS INDISPENSABLE, UNERODABLE CORE OF OUR SYSTEM
FOR TRYING CRIMINAL CASES WOULD NOT HAVE INCLUDED, HIDDEN AMONG ITS
PROVISIONS, A SLUMBERING SLEEPER GRANTING THE JUDGES LICENSE TO DESTROY
TRIAL BY JURY IN WHOLE OR IN PART. 

THIS BRINGS ME TO THE CONSTITUTIONAL THEORY RELIED UPON BY THE COURT
TO JUSTIFY ITS INVADING THE CONSTITUTIONAL RIGHT OF JURY TRIAL.  THE
COURT HERE HOLDS THAT: 

"(JUDGED BY THE 'TOTALITY OF THE CIRCUMSTANCES,' THE CONDUCT OF
IDENTIFICATION PROCEDURES MAY BE 'SO UNNECESSARILY SUGGESTIVE AND
CONDUCIVE TO IRREPARABLE MISTAKEN IDENTIFICATION' AS TO BE A DENIAL OF
DUE PROCESS OF LAW . . . . 

     "JUDGED BY THAT STANDARD, THIS CASE PRESENTS A COMPELLING

  EXAMPLE OF UNFAIR LINEUP PROCEDURES."  ANTE, AT 442. 

I DO NOT DENY THAT THE "TOTALITY OF CIRCUMSTANCES" CAN BE CONSIDERED TO
DETERMINE WHETHER SOME SPECIFIC CONSTITUTIONAL PROHIBITIONS HAVE BEEN
VIOLATED, SUCH, FOR EXAMPLE, AS THE FIFTH AMENDMENT'S COMMAND AGAINST
COMPELLING A WITNESS TO INCRIMINATE HIMSELF.  WHETHER EVIDENCE HAS BEEN
COMPELLED IS, OF COURSE, A TRIABLE ISSUE OF FACT.  AND THE
CONSTITUTIONAL COMMAND NOT TO COMPEL A PERSON TO BE A WITNESS AGAINST
HIMSELF, LIKE OTHER ISSUES OF FACT, MUST BE DETERMINED BY A RESOLUTION
OF ALL FACTS AND THE "TOTALITY" OF THEM OFFERED IN EVIDENCE. 
CONSEQUENTLY WERE THE COURT'S LEGAL FORMULA POSED FOR APPLICATION IN A
COERCED TESTIMONY CASE, I COULD AGREE TO IT.  BUT IT IS NOT.  INSTEAD
THE COURT LOOKS TO THE "TOTALITY OF CIRCUMSTANCES" TO SHOW "UNFAIR
LINEUP PROCEDURES."  THIS MEANS "UNFAIR" ACCORDING TO THE COURT'S VIEW
OF WHAT IS UNFAIR.  THE CONSTITUTION, HOWEVER, DOES NOT ANYWHERE
PROHIBIT CONDUCT DEEMED UNFAIR BY THE COURTS.  AS WE RECENTLY SAID IN
UNITED STATES V. AUGENBLICK, 393 U.S. 348, 352 (1969):  "RULES OF
EVIDENCE ARE DESIGNED IN THE INTERESTS OF FAIR TRIALS.  BUT UNFAIRNESS
IN RESULT IS NO SURE MEASURE OF UNCONSTITUTIONALITY." 

THE CONSTITUTION SETS UP ITS OWN STANDARDS OF UNFAIRNESS IN CRIMINAL
TRIALS IN THE FOURTH, FIFTH, AND SIXTH AMENDMENTS, AMONG OTHER
PROVISIONS OF THE CONSTITUTION.  MANY OF THESE PROVISIONS RELATE TO
EVIDENCE AND ITS USE IN CRIMINAL CASES.  THE CONSTITUTION PROVIDES THAT
THE ACCUSED SHALL HAVE THE RIGHT TO COMPULSORY PROCESS FOR OBTAINING
WITNESSES IN HIS FAVOR.  IT ORDAINS THAT EVIDENCE SHALL NOT BE OBTAINED
BY COMPULSION OF THE ACCUSED.  IT ORDAINS THAT THE ACCUSED SHALL HAVE
THE RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.  IN THESE WAYS THE
CONSTITUTION ITSELF DICTATES WHAT EVIDENCE IS TO BE EXCLUDED BECAUSE IT
WAS IMPROPERLY OBTAINED OR BECAUSE IT IS NOT SUFFICIENTLY RELIABLE. 
BUT THE CONSTITUTION DOES NOT GIVE THIS COURT ANY GENERAL AUTHORITY TO
REQUIRE EXCLUSION OF ALL EVIDENCE THAT THIS COURT CONSIDERS IMPROPERLY
OBTAINED OR THAT THIS COURT CONSIDERS INSUFFICIENTLY RELIABLE.  HEARSAY
EVIDENCE, FOR EXAMPLE, IS IN MOST INSTANCES RENDERED INADMISSIBLE BY
THE CONFRONTATION CLAUSE, WHICH REFLECTS A JUDGMENT, MADE BY THE
FRAMERS OF THE BILL OF RIGHTS, THAT SUCH EVIDENCE MAY BE UNRELIABLE AND
CANNOT BE PUT IN PROPER PERSPECTIVE BY CROSS-EXAMINATION OF THE PERSON
REPEATING IT IN COURT.  NOTHING IN THIS CONSTITUTIONAL PLAN SUGGESTS
THAT THE FRAMERS DREW UP THE BILL OF RIGHTS MERELY IN ORDER TO MENTION
A FEW TYPES OF EVIDENCE "FOR ILLUSTRATION," WHILE LEAVING THIS COURT
WITH FULL POWER TO HOLD UNCONSTITUTIONAL THE USE OF ANY OTHER EVIDENCE
THAT THE JUSTICES OF THIS COURT MIGHT DECIDE WAS NOT SUFFICIENTLY
RELIABLE OR WAS NOT SUFFICIENTLY SUBJECT TO EXPOSURE BY CROSS
EXAMINATION.  ON THE CONTRARY, AS WE HAVE REPEATEDLY HELD, THE
CONSTITUTION LEAVES TO THE STATES AND TO THE PEOPLE ALL THESE QUESTIONS
CONCERNING THE VARIOUS ADVANTAGES AND DISADVANTAGES OF ADMITTING
CERTAIN TYPES OF EVIDENCE.  SPENCER V. TEXAS, 385 U.S. 554 (1967);
MICHELSON V. UNITED STATES, 335 U.S. 469 (1948). 

IT HAS BECOME FASHIONABLE TO TALK OF THE COURT'S POWER TO HOLD
GOVERNMENTAL LAWS AND PRACTICES UNCONSTITUTIONAL WHENEVER THIS COURT
BELIEVES THEM TO BE "UNFAIR," CONTRARY TO BASIC STANDARDS OF DECENCY,
IMPLICIT IN ORDERED LIBERTY, OR OFFENSIVE TO "THOSE CANONS OF DECENCY
AND FAIRNESS WHICH EXPRESS THE NOTIONS OF JUSTICE OF ENGLISH-SPEAKING
PEOPLES . . . ."  /5/  ALL OF THESE DIFFERENT GENERAL AND INDEFINABLE
WORDS OR PHRASES ARE THE FRUIT OF THE SAME, WHAT I CONSIDER TO BE
POISONOUS, TREE, NAMELY, THE DOCTRINE THAT THIS COURT HAS POWER TO MAKE
ITS OWN IDEAS OF FAIRNESS, DECENCY, AND SO FORTH, ENFORCEABLE AS THOUGH
THEY WERE CONSTITUTIONAL PRECEPTS.  WHEN I CONSIDER THE
INCONTROVERTIBLE FACT THAT OUR CONSTITUTION WAS WRITTEN TO LIMIT AND
DEFINE THE POWERS OF THE FEDERAL GOVERNMENT AS DISTINGUISHED FROM THE
POWERS OF STATES, AND TO DIVIDE THOSE POWERS GRANTED THE UNITED STATES
AMONG THE SEPARATE EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHES, I
CANNOT ACCEPT THE PREMISE THAT OUR CONSTITUTION GRANTS ANY POWERS
EXCEPT THOSE SPECIFICALLY WRITTEN INTO IT, OR ABSOLUTELY NECESSARY AND
PROPER TO CARRY OUT THE POWERS EXPRESSLY GRANTED. 

I REALIZE THAT SOME ARGUE THAT THERE IS LITTLE DIFFERENCE BETWEEN
THE TWO CONSTITUTIONAL VIEWS EXPRESSED BELOW: 

     ONE.  NO LAW SHOULD BE HELD UNCONSTITUTIONAL UNLESS ITS

  INVALIDATION CAN BE FIRMLY PLANTED ON A SPECIFIC CONSTITUTIONAL

  PROVISION PLUS THE NECESSARY AND PROPER CLAUSE. 

     TWO.  ALL LAWS ARE UNCONSTITUTIONAL THAT ARE UNFAIR, SHOCK THE

  CONSCIENCE OF THE COURT, OFFEND ITS SENSE OF DECENCY, OR VIOLATE

  CONCEPTS IMPLICIT IN ORDERED LIBERTY. 

THE FIRST OF THESE TWO CONSTITUTIONAL STANDARDS PLAINLY TELLS JUDGES
THEY HAVE NO POWER TO HOLD LAWS UNCONSTITUTIONAL UNLESS SUCH LAWS ARE
BELIEVED TO VIOLATE THE WRITTEN CONSTITUTION.  THE SECOND
CONSTITUTIONAL STANDARD, BASED ON THE WORDS "DUE PROCESS," NOT ONLY
DOES NOT REQUIRE JUDGES TO FOLLOW THE CONSTITUTION AS WRITTEN, BUT
ACTUALLY ENCOURAGES JUDGES TO HOLD LAWS UNCONSTITUTIONAL ON THE BASIS
OF THEIR OWN CONCEPTIONS OF FAIRNESS AND JUSTICE.  THIS FORMULA IMPOSES
NO "RESTRAINT" ON JUDGES BEYOND REQUIRING THEM TO FOLLOW THEIR OWN BEST
JUDGMENT AS TO WHAT IS WISE, JUST, AND BEST UNDER THE CIRCUMSTANCES OF
A PARTICULAR CASE.  THIS CASE WELL ILLUSTRATES THE EXTREMES TO WHICH
THE FORMULA CAN TAKE MEN WHO ARE BOTH WISE AND GOOD.  ALTHOUGH DUE
PROCESS REQUIRES THAT COURTS SUMMON WITNESSES SO THAT JURIES CAN
DETERMINE THE GUILT OR INNOCENCE OF DEFENDANTS, THE COURT, BECAUSE OF
ITS SENSE OF FAIRNESS, DECIDES THAT DUE PROCESS DEPRIVES JURIES OF A
CHANCE TO HEAR WITNESSES WHO THE COURT HOLDS COULD NOT OR MIGHT NOT
TELL THE TRUTH. 

I BEGAN MY OPPOSITION TO THIS FALLACIOUS CONCEPT OF "DUE PROCESS"
EVEN BEFORE I BECAME A MEMBER OF THIS COURT /6/  AND EXPRESSED IT
FORMALLY SOON AFTER MY SERVICE ON THE COURT BEGAN.  /7/  AND IT WAS NOT
LONG BEFORE I EMPHASIZED THAT QUITE A DIFFERENT BELIEF ABOUT THE
MEANING OF THE PHRASE "DUE PROCESS" HAD LONG EXISTED IN OUR JUDICIAL
HISTORY IN OPPOSITION TO THE "DECENCY AND FAIRNESS" DOCTRINE.  SEE
CHAMBERS V. FLORIDA, 309 U.S. 227, 235-236, N. 8 (1940). 

MY EXPERIENCE ON THE COURT HAS CONFIRMED MY EARLY BELIEF THAT THE
"DECENCY AND FAIRNESS" DUE PROCESS TEST CANNOT STAND CONSISTENTLY WITH
OUR WRITTEN CONSTITUTION. 

        III. 

I AGREE WITH THE COURT THAT WE SHOULD NOT UNDERTAKE TO PASS ON THE
QUESTION OF HARMLESS ERROR FOR THE FIRST TIME IN THIS COURT.  UNDER THE
COURT'S HOLDING, THE CASE SHOULD BE REMANDED TO THE STATE COURTS FOR
DECISION OF THIS QUESTION. 

IN RECENT YEARS THIS COURT HAS, IN A SERIES OF CASES, HELD THAT MOST
OF THE BILL OF RIGHTS IS NOW APPLICABLE AGAINST THE STATES AS WELL AS
AGAINST THE FEDERAL GOVERNMENT.  THIS HAS BROUGHT ABOUT A TREMENDOUS
INCREASE IN THE NUMBER OF STATE CRIMINAL CASES INVOLVING FEDERAL
QUESTIONS, SOME OF WHICH DEPEND ON THE PARTICULAR FACTS AND
CIRCUMSTANCES OF THE CASE.  IN FIFTH AMENDMENT CONFESSION CASES, FOR
EXAMPLE, COURTS MUST UNDER PREVAILING PRACTICE HEAR EVIDENCE TO
DETERMINE WHETHER CONFESSIONS WERE COMPELLED.  THIS COURT HAS POWER IN
CASES OF THAT KIND TO REVIEW EVIDENCE BEFORE THE TRIAL COURTS.  NO ONE
CAN NOW PREDICT WITH ACCURACY HOW GREAT A NUMBER OF SUCH CASES ARE
DESTINED TO COME BEFORE US, BUT ALL KNOW IT WILL BE MANY.  SHOULD WE
NOT MAKE IT AN ALMOST INVARIABLE PRACTICE TO ACCEPT LOWER COURT
FINDINGS OF FACT ITSELF PREOCCUPIED WITH THE BUSINESS OF A STATE COURT
OF CRIMINAL APPEALS, A CONDITION NOT DEVOUTLY TO BE WISHED IN THE
COURT'S INTEREST OR IN THE INTEREST OF THE ADMINISTRATION OF JUSTICE IN
GENERAL.  THIS PROBLEM IS MAGNIFIED MANY TIMES OVER WHEN ACCOUNT IS
TAKEN OF THE HARMLESS-ERROR RULES THAT MANY STATES HAVE NOW ADOPTED,
SINCE THESE RULES ALSO RAISE FACTUAL ISSUES INVOLVING A FEDERAL
QUESTION WHENEVER THE ERROR ITSELF IS FEDERAL.  SEE CHAPMAN V.
CALIFORNIA, 386 U.S. 18 (1967).  IF TRIAL ERRORS ARE FOUND SOME COURTS
ALONG THE LINE MUST DETERMINE WHETHER THE ERROR WAS HARMLESS.  THAT
QUESTION HAS, BECAUSE OF THIS COURT'S JUDGMENT, NOW ARISEN IN THIS
CASE.  I AGREE WITH THE COURT THAT WE SHOULD NOT DECIDE THIS QUESTION
HERE.  IN THE PRESENT POSTURE OF CRIMINAL LAW, THERE ARE SIMPLY TOO
MANY FEDERAL QUESTIONS IN THE STATE CASES BEFORE US TO DEFEND A
PRACTICE OF OUR DECIDING IN THE FIRST INSTANCE THAT THERE WAS NO
HARMLESS ERROR.  THERE ARE MANY REASONS FOR THIS OTHER THAN THE
NECESSITY OF SAVING OUR TIME FOR THE VASTLY MORE IMPORTANT ISSUES WE
MUST DECIDE.  TO SAY THE LEAST, THE QUESTION WHETHER AN ERROR IN A
PARTICULAR CASE IS HARMLESS IS AN ISSUE PECULIARLY FOR LOWER, NOT FOR
THE HIGHEST, APPELLATE COURTS.  THEN, TOO, THIS ISSUE CAN USUALLY BE
TRIED MORE EFFICIENTLY, AND JUST AS FAIRLY, BY THE LOCAL COURT THAT
TRIED THE CASE OR BY THE LOCAL APPELLATE COURT THAT HEARD THE FIRST
APPEAL.  THIS COURT WAS NOT ESTABLISHED TO TRY SUCH MINOR ISSUES OF
FACT FOR THE FIRST TIME.  OF COURSE, I DO NOT MEAN TO SUGGEST THAT
THERE SHOULD BE AN IRONCLAD RULE ALWAYS BARRING THE COURT FROM DECIDING
AN ISSUE IN CASES IF IT PLAINLY AND MANIFESTLY APPEARS THAT IT WOULD BE
EGREGIOUSLY UNJUST AND UNDOUBTEDLY WRONG TO LEAVE AN ISSUE UNDECIDED. 
BUT I DO NOT THINK THIS EVEN DISTANTLY APPROACHES BEING SUCH A CASE. 
EVEN THOUGH I STEADFASTLY BELIEVE THE COURT'S BASIC HOLDING IS ERROR, I
DO AGREE THAT WE SHOULD NOT ESTABLISH A PRECEDENT OF PASSING ON
HARMLESS ERROR FOR THE FIRST TIME IN THIS COURT BEFORE THE COURTS BELOW
HAVE HAD AN OPPORTUNITY TO CONSIDER THE QUESTION. 

FOR THE ABOVE REASONS I DISSENT FROM THE REVERSAL AND REMAND OF THIS
CASE. 

/1/  COUNSEL ALSO ADMITTED A PRIOR FELONY CONVICTION OF ASSAULT WITH
INTENT TO COMMIT RAPE, A CIRCUMSTANCE RELEVANT IN CALIFORNIA IN
CONNECTION WITH PUNISHMENT. 

/2/  SEE SPENCER V. TEXAS, 385 U.S. 554, 560-561 AND N. 7 (1967);
STATE V. CHANCE, 92 ARIZ. 351, 377 P.2D 197 (1962); NESTER V. STATE, 75
NEV. 41, 334 P.2D 524 (1959); MOSLEY V. STATE, 211 GA. 611, 87 S.E.2D
314 (1955); 2 J.WIGMORE,EVIDENCE 416 (3D ED. 1940 AND 1964 SUPP.). 

/3/  THE COURT APPARENTLY MEANS THAT THE ONLY OTHER EVIDENCE AGAINST
FOSTER IN THIS CASE-- HIS PRIOR CONVICTION FOR INVOLVEMENT IN A CRIME
OF A SIMILAR TYPE-- IS CONSTITUTIONALLY ADMISSIBLE.  SEE SPENCER V.
TEXAS, SUPRA.  BUT IT MAY BE DOUBTFUL WHETHER THIS PAST CONVICTION,
ALTHOUGH HIGHLY RELEVANT TO THE QUESTION OF GUILT, COULD CONSTITUTE
CORROBORATION OF THE ACCOMPLICE'S TESTIMONY, WITHIN THE MEANING OF THE
CALIFORNIA REQUIREMENT. 

/4/  ANTE, AT 442, QUOTING FROM STOVALL V. DENNO, 388 U.S. 293, 302
(1967). 

/5/  MALINSKI V. NEW YORK, 324 U.S. 401, 417 (OPINION OF
FRANKFURTER, J.)  (1945); SEE ALSO ROCHIN V. CALIFORNIA, 342 U.S. 165
(1952); IRVINE V. CALIFORNIA, 347 U.S. 128 (1954). 

/6/  SEE, E.G., 81 CONG.REC.APP., PT. 9, PP. 638-639; ID., AT 307. 

/7/  SEE, E.G., MCCART V. INDIANAPOLIS WATER CO., 302 U.S. 419, 423
(1938) (DISSENTING OPINION). 

KENNETH L. MADDY, BY APPOINTMENT OF THE COURT, 391 U.S. 902, ARGUED
THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

DORIS H. MAIER, ASSISTANT ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HER ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND CHARLES P. JUST, DEPUTY ATTORNEY GENERAL. 
..END :










NICKOLICH V. OHIO, 394 U.S. 454 


       NICKOLICH V. OHIO. 

        APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 1052.  DECIDED APRIL 1, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

GEORGE E. TYACK FOR APPELLANT. 

E. RAYMOND MOREHART FOR APPELLEE. 
..END :










MRKONJIC-RUZIC V. UNITED STATES, 394 U.S. 454 


       MRKONJIC-RUZIC V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

  COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 880.  DECIDED APRIL 1, 1969. 


CERTIORARI GRANTED; 402 F.2D 836, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA FOR FURTHER CONSIDERATION IN
LIGHT OF ALDERMAN V. UNITED STATES, ANTE, P. 165. 

MR. JUSTICE BLACK DISSENTS. 

GREGORY S. STOUT FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL
KOSSACK, AND BEATRICE ROSENBERG FOR THE UNITED STATES. 
..END :




DELURY V. CITY OF NEW YORK, 394 U.S. 455 


       DELURY ET AL. V. CITY OF NEW YORK. 

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 1029.  DECIDED APRIL 1, 1969. 


23 N.Y.2D 175, 243 N.E.2D 128, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A PROPERLY PRESENTED FEDERAL QUESTION. 

PAUL O'DWYER, W. BERNARD RICHLAND, MORRIS WEISSBERG, AND JOHN L.
DELURY, JR., FOR APPELLANTS. 

J. LEE RANKIN, FREDERIC S. NATHAN, AND STANLEY BUCHSBAUM FOR
APPELLEE. 
..END :









HOTEL & RESTAURANT EMPLOYEES V. EMERY, 394 U.S. 455 


       HOTEL & RESTAURANT EMPLOYEES UNION LOCAL NO. 566 ET AL. V.

           EMERY ET UX., DBA MAIN DINER. 

  APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

NO. 988.  DECIDED APRIL 1, 1969. 


281 MINN. 334, 161 N.W.2D 842, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND THE CASE SET FOR ORAL ARGUMENT. 

SOLLY ROBINS, STANFORD ROBINS, J. W. BROWN, BENJAMIN GETTLER, AND
JONAS KATZ FOR APPELLANTS. 

JOHN S. CONNOLLY FOR APPELLEES. 
..END :
























MACQUARRIE V. MCLAUGHLIN, 394 U.S. 456 


       MACQUARRIE V. MCLAUGHLIN, REGISTRAR OF MOTOR VEHICLES. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS. 

NO. 1483, MISC.  DECIDED APRIL 1, 1969. 


294 F.SUPP.  176, AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND THE CASE SET FOR ORAL ARGUMENT. 
..END :











MITCHELL V. RIDDELL, 394 U.S. 456 


       MITCHELL ET AL. V. RIDDELL, DISTRICT DIRECTOR OF INTERNAL

           REVENUE, ET AL.

        APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
NINTH

CIRCUIT. 

        NO. 1044.  DECIDED APRIL 1, 1969. 


402 F.2D 842, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WALTERS, AND
GILBERT E. ANDREWS FOR APPELLEES. 
..END :





ROSE V. OHIO, 394 U.S. 457 


       ROSE V. OHIO. 

        APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 1460, MISC.  DECIDED APRIL 1, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














FANNON V. UNITED STATES, 394 U.S. 457 


       FANNON V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

        NO. 1274, MISC.  DECIDED APRIL 1, 1969. 


CERTIORARI GRANTED; 403 F.2D 391, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION TO SUPPLEMENT THE RECORD IS GRANTED.  THE MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT OF
CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS
REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS FOR FURTHER CONSIDERATION IN LIGHT OF ALDERMAN V. UNITED
STATES, ANTE, P. 165. 

MR. JUSTICE BLACK DISSENTS. 

JOHN J. CLEARY FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND MERVYN HAMBURG FOR THE UNITED STATES. 
..END :
























KAUFER V. UNITED STATES, 394 U.S. 458 


       KAUFER V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SECOND CIRCUIT. 

        NO. 1041.  DECIDED APRIL 1, 1969. 


CERTIORARI GRANTED; 406 F.2D 550, AFFIRMED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
AFFIRMED.  DESIST V. UNITED STATES, ANTE, P. 244. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE FORTAS DISSENT FROM THE
AFFIRMANCE OF THE JUDGMENT. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE WOULD DENY THE PETITION FOR
A WRIT OF CERTIORARI. 

FREDERICK H. BLOCK AND HERBERT MONTE LEVY FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON,
BEATRICE ROSENBERG, AND ROGER A. PAULEY FOR THE UNITED STATES. 
..END :
























OROZCO V. TEXAS, 394 U.S. 324 


       OROZCO V. TEXAS. 

        CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

        NO. 641.  ARGUED FEBRUARY 26, 1969.-- DECIDED MARCH 25,

           1969. 


USE OF ADMISSIONS AT PETITIONER'S TRIAL FOR MURDER WHICH WERE
OBTAINED BY OFFICERS WHO, WHILE HE WAS IN THEIR CUSTODY IN HIS BEDROOM
AT THE BOARDINGHOUSE WHERE HE LIVED, QUESTIONED HIM ABOUT INCRIMINATING
FACTS WITHOUT FIRST INFORMING HIM OF HIS RIGHTS TO REMAIN SILENT, TO
HAVE A LAWYER'S ADVICE BEFORE MAKING A STATEMENT, AND TO HAVE A LAWYER
APPOINTED TO ASSIST HIM IF HE COULD NOT AFFORD TO HIRE ONE, HELD TO
HAVE VIOLATED SELF-INCRIMINATION CLAUSE OF FIFTH AMENDMENT MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH.  MIRANDA V. ARIZONA, 384
U.S. 436 (1966).  PP. 326-327, 

428 S.W.2D 666, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, REYES ARIAS OROZCO, WAS CONVICTED IN THE CRIMINAL
DISTRICT COURT OF DALLAS COUNTY, TEXAS, OF MURDER WITHOUT MALICE AND
WAS SENTENCED TO SERVE IN THE STATE PRISON NOT LESS THAN TWO NOR MORE
THAN 10 YEARS.  THE COURT OF CRIMINAL APPEALS OF TEXAS AFFIRMED THE
CONVICTION, REJECTING PETITIONER'S CONTENTION THAT A MATERIAL PART OF
THE EVIDENCE AGAINST HIM WAS OBTAINED IN VIOLATION OF THE PROVISION OF
THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, MADE APPLICABLE
TO THE STATES BY THE FOURTEENTH AMENDMENT, THAT:  "NO PERSON . . .
SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF."  /1/ 

THE EVIDENCE INTRODUCED AT TRIAL SHOWED THAT PETITIONER AND THE
DECEASED HAD QUARRELED OUTSIDE THE EL FARLETO CAFE IN DALLAS SHORTLY
BEFORE MIDNIGHT ON THE DATE OF THE SHOOTING.  THE DECEASED HAD
APPARENTLY SPOKEN TO PETITIONER'S FEMALE COMPANION INSIDE THE
RESTAURANT.  IN THE HEAT OF THE QUARREL OUTSIDE, THE DECEASED IS SAID
TO HAVE BEATEN PETITIONER ABOUT THE FACE AND CALLED HIM "MEXICAN
GREASE."  A SHOT WAS FIRED KILLING THE DECEASED.  PETITIONER LEFT THE
SCENE AND RETURNED TO HIS BOARDINGHOUSE TO SLEEP.  AT ABOUT 4 A.M. FOUR
POLICE OFFICERS ARRIVED AT PETITIONER'S BOARDINGHOUSE, WERE ADMITTED BY
AN UNIDENTIFIED WOMAN, AND WERE TOLD THAT PETITIONER WAS ASLEEP IN THE
BEDROOM.  ALL FOUR OFFICERS ENTERED THE BEDROOM AND BEGAN TO QUESTION
PETITIONER.  FROM THE MOMENT HE GAVE HIS NAME, ACCORDING TO THE
TESTIMONY OF ONE OF THE OFFICERS, PETITIONER WAS NOT FREE TO GO WHERE
HE PLEASED BY WAS "UNDER ARREST."  THE OFFICERS ASKED HIM IF HE HAD
BEEN TO THE EL FARLETO RESTAURANT THAT NIGHT AND WHEN HE ANSWERED "YES"
HE WAS ASKED IF HE OWNED A PISTOL.  PETITIONER ADMITTED OWNING ONE. 
AFTER BEING ASKED A SECOND TIME WHERE THE PISTOL WAS LOCATED, HE
ADMITTED THAT IT WAS IN THE WASHING MACHINE IN A BACK ROOM OF THE
BOARDING HOUSE.  BALLISTICS TESTS INDICATED THAT THE GUN FOUND IN THE
WASHING MACHINE WAS THE GUN THAT FIRED THE FATAL SHOT.  AT PETITIONER'S
TRIAL, HELD AFTER THE EFFECTIVE DATE /2/  OF THIS COURT'S DECISION IN
MIRANDA V. ARIZONA, 384 U.S. 436 (1966), THE TRIAL COURT ALLOWED ONE OF
THE OFFICERS, OVER THE OBJECTION OF PETITIONER'S LAWYER, /3/  TO RELATE
THE STATEMENTS MADE BY PETITIONER CONCERNING THE GUN AND PETITIONER'S
PRESENCE AT THE SCENE OF THE SHOOTING.  THE TRIAL TESTIMONY CLEARLY
SHOWS THAT THE OFFICERS QUESTIONED PETITIONER ABOUT INCRIMINATING FACTS
WITHOUT FIRST INFORMING HIM OF HIS RIGHT TO REMAIN SILENT, HIS RIGHT TO
HAVE THE ADVICE OF A LAWYER BEFORE MAKING ANY STATEMENT, AND HIS RIGHT
TO HAVE A LAWYER APPOINTED TO ASSIST HIM IF HE COULD NOT AFFORD TO HIRE
ONE.  THE TEXAS COURT OF CRIMINAL APPEALS HELD, WITH ONE JUDGE
DISSENTING, THAT THE ADMISSION OF TESTIMONY CONCERNING THE STATEMENTS
PETITIONER HAD MADE WITHOUT THE ABOVE WARNINGS WAS NOT PRECLUDED BY
MIRANDA.  WE DISAGREE AND HOLD THAT THE USE OF THESE ADMISSIONS
OBTAINED IN THE ABSENCE OF THE REQUIRED WARNINGS WAS A FLAT VIOLATION
OF THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT AS CONSTRUED IN
MIRANDA. 

THE STATE HAS ARGUED HERE THAT SINCE PETITIONER WAS INTERROGATED ON
HIS OWN BED, IN FAMILIAR SURROUNDINGS, OUR MIRANDA HOLDING SHOULD NOT
APPLY.  IT IS TRUE THAT THE COURT DID SAY IN MIRANDA THAT "COMPULSION
TO SPEAK IN THE ISOLATED SETTING OF THE POLICE STATION MAY WELL BE
GREATER THAN IN COURTS OR OTHER OFFICIAL INVESTIGATIONS, WHERE THERE
ARE OFTEN IMPARTIAL OBSERVERS TO GUARD AGAINST INTIMIDATION OR
TRICKERY."  384 U.S., AT 461.  BUT THE OPINION ITERATED AND REITERATED
THE ABSOLUTE NECESSITY FOR OFFICERS INTERROGATING PEOPLE "IN CUSTODY"
TO GIVE THE DESCRIBED WARNINGS.  SEE MATHIS V. UNITED STATES, 391 U.S.
1 (1968).  ACCORDING TO THE OFFICER'S TESTIMONY, PETITIONER WAS UNDER
ARREST AND NOT FREE TO LEAVE WHEN HE WAS QUESTIONED IN HIS BEDROOM IN
THE EARLY HOURS OF THE MORNING.  THE MIRANDA OPINION DECLARED THAT THE
WARNINGS WERE REQUIRED WHEN THE PERSON BEING INTERROGATED WAS "IN
CUSTODY AT THE STATION OR OTHERWISE DEPRIVED OF HIS FREEDOM OF ACTION
IN ANY SIGNIFICANT WAY."  384 U.S., AT 477.  THE DECISION OF THIS COURT
IN MIRANDA WAS REACHED AFTER CAREFUL CONSIDERATION AND LENGTHY OPINIONS
WERE ANNOUNCED BY BOTH THE MAJORITY AND DISSENTING JUSTICES.  THERE IS
NO NEED TO CANVASS THOSE ARGUMENTS AGAIN.  WE DO NOT, AS THE DISSENT
IMPLIES, EXPAND OR EXTEND TO THE SLIGHTEST EXTENT OUR MIRANDA
DECISION.  WE DO ADHERE TO OUR WELL-CONSIDERED HOLDING IN THAT CASE AND
THEREFORE REVERSE /4/  THE CONVICTION BELOW. 

              REVERSED. 

/1/  THE STATE COURT ALSO REJECTED A CONTENTION THAT USE OF THE
EVIDENCE ALSO VIOLATED THE FOURTH AMENDMENT'S PROVISION AGAINST
UNREASONABLE SEARCHES AND SEIZURES.  OUR HOLDING MAKES IT UNNECESSARY
FOR US TO CONSIDER THAT CONTENTION. 

/2/  SEE JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966). 

/3/  THE STATE APPEARS TO URGE THAT PETITIONER'S MIRANDA CLAIM IS
UNREVIEWABLE IN THIS COURT BECAUSE THE OBJECTION MADE BY TRIAL COUNSEL
TO THE OFFICER'S TESTIMONY WAS NOT SUFFICIENTLY "SPECIFIC."  WE FAIL TO
PERCEIVE HOW THIS COULD BE AN ADEQUATE STATE GROUND IN VIEW OF THE FACT
THAT THE TEXAS COURT OF CRIMINAL APPEALS SPECIFICALLY DECIDED THAT THE
INTRODUCTION OF PETITIONER'S STATEMENT MADE TO THE OFFICERS "WAS NOT
PRECLUDED UNDER MIRANDA V. STATE OF ARIZONA," 428 S.W.2D 666, 672,
WHILE THE DISSENTING JUDGE THOUGHT THAT IT WAS. 

/4/  IN LIGHT OF SOME APPARENT MISUNDERSTANDING ON THIS POINT, IT IS
PERHAPS APPROPRIATE TO POINT OUT ONCE AGAIN THAT A REVERSAL BY THIS
COURT OF A CONVICTION BASED IN PART ON UNCONSTITUTIONAL EVIDENCE LEAVES
THE STATE FREE TO RETRY THE DEFENDANT WITHOUT THE TAINTED EVIDENCE. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

THE PASSAGE OF TIME HAS NOT MADE THE MIRANDA CASE ANY MORE PALATABLE
TO ME THAN IT WAS WHEN THE CASE WAS DECIDED.  SEE MY DISSENTING
OPINION, AND THAT OF MR. JUSTICE WHITE, IN MIRANDA V. ARIZONA, 384 U.S.
436, 504, 526 (1966). 

YET, DESPITE MY STRONG INCLINATION TO JOIN IN THE DISSENT OF MY
BROTHER WHITE, I CAN FIND NO ACCEPTABLE AVENUE OF ESCAPE FROM MIRANDA
IN JUDGING THIS CASE, ESPECIALLY IN LIGHT OF MATHIS V. UNITED STATES,
391 U.S. 1 (1968), WHICH HAS ALREADY EXTENDED THE MIRANDA RULES BEYOND
THE POLICE STATION, OVER THE PROTEST OF JUSTICES STEWART, WHITE, AND
MYSELF, ID., AT 5-8.  THEREFORE, AND PURELY OUT OF RESPECT FOR STARE
DECISIS, I RELUCTANTLY FEEL COMPELLED TO ACQUIESCE IN TODAY'S DECISION
OF THE COURT, AT THE SAME TIME OBSERVING THAT THE CONSTITUTIONAL
CONDEMNATION OF THIS PERFECTLY UNDERSTANDABLE, SENSIBLE, PROPER, AND
INDEED COMMENDABLE PIECE OF POLICE WORK HIGHLIGHTS THE UNSOUNDNESS OF
MIRANDA. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THIS DECISION CARRIES THE RULE OF MIRANDA V. ARIZONA, 384 U.S. 436
(1966), TO A NEW AND UNWARRANTED EXTREME.  I CONTINUE TO BELIEVE THAT
THE ORIGINAL RULE AMOUNTED TO A "CONSTITUTIONAL STRAITJACKET" ON LAW
ENFORCEMENT WHICH WAS JUSTIFIED NEITHER BY THE WORDS OR HISTORY OF THE
CONSTITUTION, NOR BY ANY REASONABLE VIEW OF THE LIKELY BENEFITS OF THE
RULE AS AGAINST ITS DISADVANTAGES.  384 U.S., AT 526.  EVEN ACCEPTING
MIRANDA, THE COURT EXTENDS THE RULE HERE AND DRAWS THE STRAITJACKET
EVEN TIGHTER. 

THE OPINION OF THE COURT IN MIRANDA WAS DEVOTED IN LARGE PART TO AN
ELABORATE DISCUSSION OF THE SUBTLE FORMS OF PSYCHOLOGICAL PRESSURE
WHICH COULD BE BROUGHT TO BEAR WHEN AN ACCUSED PERSON IS INTERROGATED
AT LENGTH IN UNFAMILIAR SURROUNDINGS.  THE "SALIENT FEATURES" OF THE
CASES DECIDED IN MIRANDA WERE "INCOMMUNICADO INTERROGATION OF
INDIVIDUALS IN A POLICE-DOMINATED ATMOSPHERE."  384 U.S.,AT 445.  THE
DANGER WAS THAT IN SUCH CIRCUMSTANCES THE CONFIDENCE OF THE PRISONER
COULD BE ERODED BY TECHNIQUES SUCH AS SUCCESSIVE INTERROGATIONS BY
POLICE ACTING OUT FRIENDLY OR UNFRIENDLY ROLES.  THESE TECHNIQUES ARE
BEST DEVELOPED IN "ISOLATION AND UNFAMILIAR SURROUNDINGS," 384 U.S., AT
450.  AND THEY TAKE TIME:  "THE MAJOR QUALITIES AN INTERROGATOR SHOULD
POSSESS ARE PATIENCE AND PERSEVERANCE."  IBID.  THE TECHNIQUES OF AN
EXTENDED PERIOD OF ISOLATION, REPEATED INTERROGATION, CAJOLERY, AND
TRICKERY OFTEN ENOUGH PRODUCED ADMISSIONS WHICH WERE ACTUALLY COERCED
IN THE TRADITIONAL SENSE SO THAT NEW SAFEGUARDS WERE DEEMED ESSENTIAL. 

IT IS DIFFICULT TO BELIEVE TAHT THE REQUIREMENTS THERE LAID DOWN WERE
ESSENTIAL TO PREVENT COMPULSION IN EVERY CONCEIVABLE CASE OF STATION
HOUSE INTERROGATION.  WHERE THE DEFENDANT HIMSELF AS A LAWYER,
POLICEMAN, PROFESSIONAL CRIMINAL, OR OTHERWISE HAS BECOME AWARE OF WHAT
HIS RIGHT TO SILENCE IS, IT IS SHEER FANCY TO ASSERT THAT HIS ANSWER TO
EVERY QUESTION ASKED HIM IS COMPELLED UNLESS HE IS ADVISED OF THOSE
RIGHTS WITH WHICH HE IS ALREADY INTIMATELY FAMILIAR.  IF THERE IS ANY
WARRANT TO MIRANDA AT ALL, IT RESTS ON THE LIKELIHOOD THAT IN A
SUFFICIENT NUMBER OF CASES EXPOSURE TO STATION HOUSE PRACTICES WILL
RESULT IN COMPELLED CONFESSIONS AND THAT ADDITIONAL SAFEGUARDS SHOULD
BE IMPOSED IN ALL CASES TO PREVENT POSSIBLE EROSION OF FIFTH AMENDMENT
VALUES.  HENCE, THE DETAILED RITUAL WHICH MIRANDA FASHIONED. 

THE COURT NOW EXTENDS THE SAME RULES TO ALL INSTANCES OF IN-CUSTODY
QUESTIONING OUTSIDE THE STATION HOUSE.  ONCE ARREST OCCURS, THE
APPLICATION OF MIRANDA IS AUTOMATIC.  THE RULE IS SIMPLE BUT IT IGNORES
THE PURPOSE OF MIRANDA TO GUARD AGAINST WHAT WAS THOUGHT TO BE THE
CORROSIVE INFLUENCE OF PRACTICES WHICH STATION HOUSE INTERROGATION
MAKES FEASIBLE.  THE COURT WHOLLY IGNORES THE QUESTION WHETHER SIMILAR
HAZARDS EXIST OR EVEN ARE POSSIBLE WHEN POLICE ARREST AND INTERROGATE
ON THE SPOT, WHETHER IT BE ON THE STREET CORNER OR IN THE HOME, AS IN
THIS CASE.  NO PREDICATE IS LAID FOR BELIEVING THAT PRACTICES OUTSIDE
THE STATION HOUSE ARE NORMALLY PROLONGED, CARRIED OUT IN ISOLATION, OR
OFTEN PRODUCTIVE OF THE PHYSICAL OR PSYCHOLOGICAL COERCION MADE SO MUCH
OF IN MIRANDA.  IT IS DIFFICULT TO IMAGINE THE POLICE DUPLICATING IN A
PERSON'S HOME OR ON THE STREET THOSE CONDITIONS AND PRACTICES WHICH THE
COURT FOUND PREVALENT IN THE STATION HOUSE AND WHICH WERE THOUGHT SO
THREATENING TO THE RIGHT TO SILENCE.  WITHOUT SUCH DEMONSTRATION,
MIRANDA HARDLY REACHES THIS CASE OR ANY CASES SIMILAR TO IT. 

HERE, THERE WAS NO PROLONGED INTERROGATION, NO UNFAMILIAR
SURROUNDINGS, NO OPPORTUNITY FOR THE POLICE TO INVOKE THOSE PROCEDURES
WHICH MOVED THE MAJORITY IN MIRANDA.  IN FACT, THE CONVERSATION WAS BY
ALL ACCOUNTS A VERY BRIEF ONE.  ACCORDING TO UNCONSTRADICTED TESTIMONY,
PETITIONER WAS AWAKE WHEN THE OFFICERS ENTERED HIS ROOM, AND THEY ASKED
HIM FOUR QUESTIONS: HIS NAME, WHETHER HE HAD BEEN AT THE EL FARLETO,
WHETHER HE OWNED A PISTOL, AND WHERE IT WAS.  HE GAVE HIS NAME, SAID HE
HAD BEEN AT THE EL FARLETO, AND ADMITTED HE OWNED A PISTOL WITHOUT
HESITATION.  HE WAS SLOW IN TELLING WHERE THE PISTOL WAS, AND THE
QUESTION WAS REPEATED.  HE THEN TOOK THE POLICE TO THE NEARBY WASHING
MACHINE WHERE THE GUN WAS HIDDEN. 

IT IS UNQUESTIONED THAT THIS SEQUENCE OF EVENTS IN THEIR TOTALITY
WOULD NOT CONSTITUTE COERCION IN THE TRADITIONAL SENSE OR LEAD ANY
COURT TO VIEW THE ADMISSIONS AS INVOLUNTARY WITHIN THE MEANING OF THE
RULES BY WHICH WE EVEN NOW ADJUDICATE CLAIMS OF COERCION RELATING TO
PRE-MIRANDA TRIALS.  AND, REALISTICALLY, HAD OROZCO REFUSED TO ANSWER
THE QUESTIONS ASKED OF HIM, IT SEEMS MOST UNLIKELY THAT PROLONGED
INTERROGATION WOULD HAVE FOLLOWED IN PETITIONER'S OWN QUARTERS; NOTHING
SIMILAR TO THE STATION HOUSE MODEL INVOKED BY THE COURT WOULD HAVE
OCCURRED HERE.  THE POLICE HAD PETITIONER'S NAME AND DESCRIPTION, HAD
AMPLE EVIDENCE THAT HE HAD BEEN AT THE NIGHT CLUB AND SUSPECTED THAT HE
HAD A GUN.  SURELY HAD HE REFUSED TO GIVE HIS NAME OR ANSWER ANY OTHER
QUESTIONS, THEY WOULD HAVE ARRESTED HIM ANYWAY, SEARCHED THE HOUSE AND
FOUND THE GUN, WHICH WOULD HAVE BEEN CLEARLY ADMISSIBLE UNDER ALL
RELEVANT AUTHORITIES.  BUT THE COURT INSISTS THAT THIS CASE BE REVERSED
FOR FAILURE TO GIVE MIRANDA WARNINGS. 

I CANNOT ACCEPT THE DILUTION OF THE CUSTODY REQUIREMENTS OF MIRANDA
TO THIS LEVEL, WHERE THE HAZARDS TO THE RIGHT TO SILENCE ARE SO
EQUIVOCAL AND UNSUPPORTED BY EXPERIENCE IN A RECURRING NUMBER OF
CASES.  OROZCO WAS APPREHENDED IN THE MOST FAMILIAR QUARTERS, THE
QUESTIONING WAS BRIEF, AND NO ADMISSIONS WERE MADE WHICH WERE NOT
BACKED UP BY OTHER EVIDENCE.  THIS CASE DOES NOT INVOLVE THE CONFESSION
OF AN INNOCENT MAN, OR EVEN OF A GUILTY MAN FROM WHOM A CONFESSION HAS
BEEN WRUNG BY PHYSICAL ABUSE OR THE MODERN PSYCHOLOGICAL METHODS
DISCUSSED IN MIRANDA.  THESE ARE SIMPLY THE TERSE REMARKS OF A MAN WHO
HAS BEEN CAUGHT, ALMOST IN THE ACT.  EVEN IF THERE WERE REASON TO
ENCOURAGE SUSPECTS TO CONSULT LAWYERS TO TELL THEM TO BE SILENT BEFORE
QUIZZING AT THE STATION HOUSE, THERE IS NO REASON WHY POLICE IN THE
FIELD SHOULD HAVE TO PREFACE EVERY CASUAL QUESTION OF A SUSPECT WITH
THE FULL PANOPLY OF MIRANDA WARNINGS.  THE SAME DANGER OF COERCION IS
SIMPLY NOT PRESENT IN SUCH CIRCUMSTANCES, AND THE ANSWERS TO THE
QUESTIONS MAY AS OFTEN CLEAR A SUSPECT AS HELP CONVICT HIM.  IF THE
MIRANDA WARNINGS HAVE THEIR INTENDED EFFECT, AND THE POLICE ARE ABLE TO
GET NO ANSWERS FROM SUSPECTS, INNOCENT OR GUILTY, WITHOUT ARRESTING
THEM, THEN A GREAT MANY MORE INNOCENT MEN WILL BE MAKING UNNECESSARY
TRIPS TO THE STATION HOUSE.  ULTIMATELY IT MAY BE NECESSARY TO ARREST A
MAN, BRING HIM TO THE POLICE STATION, AND PROVIDE A LAWYER, JUST TO
DISCOVER HIS NAME.  EVEN IF THE MAN IS INNOCENT THE PROCESS WILL BE AN
UNPLEASANT ONE.     SINCE THE COURT'S EXTENTION OF MIRANDA'S RULE TAKES
IT INTO TERRITORY WHERE EVEN WHAT RATIONALE THERE ORIGINALLY WAS
DISAPPEARS, I DISSENT. 

MEMORANDUM OF MR. JUSTICE STEWART.     ALTHOUGH THERE IS MUCH TO BE
SAID FOR MR. JUSTICE HARLAN'S POSITION, I JOIN MY BROTHER WHITE IN
DISSENT.  IT SEEMS TO ME THAT THOSE OF US WHO DISSENTED IN MIRANDA V.
ARIZONA, 384 U.S. 436, REMAIN FREE NOT ONLY TO EXPRESS OUR CONTINUING
DISAGREEMENT WITH THAT DECISION, BUT ALSO TO OPPOSE ANY BROADENING OF
ITS IMPACT. 

CHARLES W. TESSMER ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

LONNY F. ZWIENER, ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE CRAWFORD C. MARTIN,
ATTORNEY GENERAL, NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL,
HAWTHORNE PHILLIPS, EXECUTIVE ASSISTANT ATTORNEY GENERAL, ROBERT C.
FLOWERS, ASSISTANT ATTORNEY GENERAL, AND W. V. GEPPERT. 
..END :






SNYDER V. HARRIS, 394 U.S. 332 


       SNYDER V. HARRIS, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 109.  ARGUED JANUARY 21, 1969.-- DECIDED MARCH 25,

           1969.  /1A/ 


SEPARATE AND DISTINCT CLAIMS PRESENTED BY AND FOR VARIOUS CLAIMANTS
IN FEDERAL DIVERSITY ACTIONS MAY NOT BE ADDED TOGETHER TO PROVIDE THE
REQUISITE $10,000 JURISDICTIONAL AMOUNT IN CONTROVERSY.  FED. RULE CIV.
PROC. 23, AS AMENDED IN 1966, DID NOT CHANGE THE SCOPE OF THE STATUTORY
GRANT OF DISTRICT COURT JURISDICTION, AS THE LONG-STANDING JUDICIAL
INTERPRETATION OF THAT STATUTE CANNOT BE CHANGED BY AN AMENDMENT TO THE
RULES, AND THERE IS NO COMPELLING REASON FOR OVERTURNING SETTLED
JUDICIAL CONSTRUCTION OF "MATTER IN CONTROVER?SY"  IN THE LIGHT OF
CONSISTENT CONGRESSIONAL RE-ENACTMENT OF THAT LANGUAGE AGAINST A
BACKGROUND OF JUDICIAL INTERPRETATION THAT THE PHRASE DOES NOT
ENCOMPASS THE AGGREGATION OF SEPARATE AND DISTINCT CLAIMS.  PP. 332
342. 

NO. 109, 390 F.2D 204, AFFIRMED; NO. 117, 389 F.2D 831, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

TITLE 28 U.S.C. 1332 GRANTS JURISDICTION TO UNITED STATES DISTRICT
COURTS OF SUITS BETWEEN CITIZENS OF DIFFERENT STATES WHERE "THE MATTER
IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF $10,000.  . . . "  THE ISSUE
PRESENTED BY THESE TWO CASES IS WHETHER SEPARATE AND DISTINCT CLAIMS
PRESENTED BY AND FOR VARIOUS CLAIMANTS IN A CLASS ACTION MAY BE ADDED
TOGETHER TO PROVIDE THE $10,000 JURISDICTIONAL AMOUNT IN CONTROVERSY. 

EACH OF THESE CASES INVOLVES A SINGLE PLAINTIFF SUING ON BEHALF OF
HIMSELF AND "ALL OTHERS SIMILARLY SITUATED."  IN NO. 109, MRS. MARGARET
E. SNYDER, A SHAREHOLDER OF MISSOURI FIDELITY UNION TRUST LIFE
INSURANCE COMPANY, BROUGHT SUIT AGAINST MEMBERS OF THE COMPANY'S BOARD
OF DIRECTORS ALLEGING THAT THEY HAD SOLD THEIR SHARES OF THE COMPANY'S
STOCK FOR AN AMOUNT FAR IN EXCESS OF ITS FAIR MARKET VALUE, THAT THIS
EXCESS REPRESENTED PAYMENT TO THESE PARTICULAR DIRECTORS TO OBTAIN
COMPLETE CONTROL OF THE COMPANY, AND THAT UNDER MISSOURI LAW THE EXCESS
SHOULD PROPERLY BE DISTRIBUTED AMONG ALL THE SHAREHOLDERS OF THE
COMPANY AND NOT MERELY TO A FEW OF THEM.  THE SUIT WAS BROUGHT IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI,
DIVERSITY OF CITIZENSHIP BEING ALLEGED AS THE BASIS FOR FEDERAL
JURISDICTION.  SINCE PETITIONER'S ALLEGATIONS SHOWED THAT SHE SOUGHT
FOR HERSELF ONLY $8,740 IN DAMAGES, RESPONDENT MOVED TO DISMISS ON THE
GROUNDS THAT THE MATTER IN CONTROVERSY DID NOT EXCEED $10,000. 
PETITIONER CONTENDED, HOWEVER, THAT HER CLAIM SHOULD BE AGGREGATED WITH
THOSE OF THE OTHER MEMBERS OF HER CLASS, APPROXIMATELY 4,000
SHAREHOLDERS OF THE COMPANY STOCK.  IF ALL 4,000 POTENTIAL CLAIMS WERE
AGGREGATED, THE AMOUNT IN CONTROVERSY WOULD BE APPROXIMATELY
$1,200,000.  THE DISTRICT COURT HELD THAT THE CLAIMS COULD NOT THUS BE
AGGREGATED TO MEET THE STATUTORY TEST OF JURISDICTION AND THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT, FOLLOWING A SOMEWHAT SIMILAR DECISION
BY THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN ALVAREZ V. PAN
AMERICAN LIFE INSURANCE CO., 375 F.2D 992, CERT. DENIED, 389 U.S. 827
(1967), AFFIRMED.  390 F.2D 204 (1968). 

IN NO. 117, OTTO R. COBURN, A RESIDENT OF KANSAS, BROUGHT SUIT IN
THE UNITED STATES AGAINST THE GAS SERVICE COMPANY, A CORPORATION
MARKETING NATURAL GAS IN KANSAS.  JURISDICTION WAS PREDICATED UPON
DIVERSITY OF CITIZENSHIP.  THE COMPLAINT ALLEGED THAT THE GAS SERVICE
COMPANY HAD BILLED AND ILLEGALLY COLLECTED A CITY FRANCHISE TAX FROM
COBURN AND OTHERS LIVING OUTSIDE CITY LIMITS.  COBURN ALLEGED DAMAGES
TO HIMSELF OF ONLY $7.81.  STYLING HIS COMPLAINT AS A CLASS ACTION,
HOWEVER, COBURN SOUGHT RELIEF ON BEHALF OF APPROXIMATELY 18,000 OTHER
GAS SERVICE COMPANY CUSTOMERS LIVING OUTSIDE OF CITIES.  THE AMOUNT BY
WHICH OTHER MEMBERS OF THE CLASS HAD BEEN OVERCHARGED WAS, AND IS,
UNKNOWN, BUT THE COMPLAINT ALLEGED THAT THE AGGREGATION OF ALL THESE
CLAIMS WOULD IN ANY EVENT EXCEED $10,000.  THE DISTRICT COURT OVERRULED
THE GAS COMPANY'S MOTION TO DISMISS FOR FAILURE TO SATISFY THE
JURISDICTIONAL AMOUNT AND, ON INTERLOCUTORY APPEAL, THE COURT OF
APPEALS FOR THE TENTH CIRCUIT AFFIRMED, HOLDING THAT BECAUSE OF A 1966
AMENDMENT TO RULE 23 OF THE FEDERAL RULES OF CIVIL PROCEDURE RELATING
TO CLASS ACTIONS, SEPARATE AND DISTINCT CLAIMS BROUGHT TOGETHER IN A
CLASS ACTION COULD NOW BE AGGREGATED FOR THE PURPOSE OF ESTABLISHING
THE JURISDICTIONAL AMOUNT IN DIVERSITY CASES.  389 F.2D 831.  WE
GRANTED CERTIORARI TO RESOLVE THE CONFLICT BETWEEN THE POSITION OF THE
COURTS OF APPEALS FOR THE FIFTH AND THE EIGHTH CIRCUITS AND THAT OF THE
COURT OF APPEALS FOR THE TENTH CIRCUIT. 

THE FIRST CONGRESSIONAL GRANT TO DISTRICT COURTS TO TAKE SUITS
BETWEEN CITIZENS OF DIFFERENT STATES FIXED THE REQUIREMENT FOR THE
JURISDICTIONAL AMOUNT IN CONTROVERSY AT $500.  /1/  IN 1887 THIS
JURISDICTIONAL AMOUNT WAS INCREASED TO $2,000; /2/  IN 1911 TO $3,000;
/3/  AND IN.1958 TO $10,000.  /4/  THE TRADITIONAL JUDICIAL
INTERPRETATION UNDER ALL OF THESE STATUTES HAS BEEN FROM THE BEGINNING
THAT THE SEPARATE AND DISTINCT CLAIMS OF TWO OR MORE PLAINTIFFS CANNOT
BE AGGREGATED IN ORDER TO SATISFY THE JURISDICTIONAL AMOUNT
REQUIREMENT.  AGGREGATION HAS BEEN PERMITTED ONLY (1) IN CASES IN WHICH
A SINGLE PLAINTIFF SEEKS TO AGGREGATE TWO OR MORE OF HIS OWN CLAIMS
AGAINST A SINGLE DEFENDANT AND (2) IN CASES IN WHICH TWO OR MORE
PLAINTIFFS UNITE TO ENFORCE A SINGLE TITLE OR RIGHT IN WHICH THEY HAVE
A COMMON AND UNDIVIDED INTEREST.  IT IS CONTENDED, HOWEVER, THAT THE
ADOPTION OF A 1966 AMENDMENT TO RULE 23 EFFECTUATED A CHANGE IN THIS
JURISDICTIONAL DOCTRINE.  UNDER OLD RULE 23, CLASS ACTIONS WERE DIVIDED
INTO THREE CATEGORIES WHICH CAME TO BE KNOWN AS "TRUE," "HYBRID," AND
"SPURIOUS."  TRUE CLASS ACTIONS WERE THOSE IN WHICH THE RIGHTS OF THE
DIFFERENT CLASS MEMBERS WERE COMMON AND UNDIVIDED; IN SUCH CASES
AGGREGATION WAS PERMITTED.  SPURIOUS CLASS ACTIONS, ON THE OTHER HAND,
WERE IN ESSENCE MERELY A FORM OF PERMISSIVE JOINDER IN WHICH PARTIES
WITH SEPARATE AND DISTINCT CLAIMS WERE ALLOWED TO LITIGATE THOSE CLAIMS
IN A SINGLE SUIT SIMPLY BECAUSE THE DIFFERENT CLAIMS INVOLVED COMMON
QUESTIONS OF LAW OR FACT.  IN SUCH CASES AGGREGATION WAS NOT PERMITTED:
EACH PLAINTIFF HAD TO SHOW THAT HIS INDIVIDUAL CLAIM EXCEEDED THE
JURISDICTIONAL AMOUNT.  THE 1966 AMENDMENT TO RULE 23 REPLACED THE OLD
CATEGORIES WITH A FUNCTIONAL APPROACH TO CLASS ACTIONS.  THE NEW RULE
ESTABLISHES GUIDELINES FOR THE APPROPRIATENESS OF CLASS ACTIONS, MAKES
PROVISION FOR GIVING NOTICE TO ABSENT MEMBERS, ALLOWS MEMBERS OF THE
CLASS TO REMOVE THEMSELVES FROM THE LITIGATION AND PROVIDES THAT THE
JUDGMENT WILL INCLUDE ALL MEMBERS OF THE CLASS WHO HAVE NOT REQUESTED
EXCLUSION.  IN NO. 117, GAS SERVICE COMPANY, THE COURT OF APPEALS FOR
THE TENTH CIRCUIT HELD THAT THESE CHANGES IN RULE 23 CHANGED THE
JURISDICTIONAL AMOUNT DOCTRINE AS WELL.  THE COURT NOTED THAT:
"BECAUSE THE CLAIMS OF THE INDIVIDUALS CONSTITUTING THE CLASS IN THE
CASE AB BAR ARE NEITHER 'JOINT' NOR 'COMMON' THIS ACTION UNDER RULE 23
BEFORE AMENDMENT WOULD NOT HAVE BEEN CLASSIFIED AS A 'TRUE CLASS ACTION
AND AGGREGATION OF CLAIMS WOULD NOT HAVE BEEN PERMITTED."  389 F.2D
831, 833.  THE COURT OF APPEALS HELD, HOWEVER, THAT A DIFFERENT RESULT
WAS COMPELLED NOW THAT THE AMENDMENT TO RULE 23 ABOLISHED THE
DISTINCTIONS BETWEEN TRUE AND SPURIOUS CLASS ACTIONS.  THE COURT HELD
THAT BECAUSE AGGREGATION WAS PERMITTED IN SOME CLASS ACTIONS, IT MUST
NOW BE PERMITTED IN ALL CLASS ACTIONS UNDER THE NEW RULE.  WE DISAGREE
AND CONCLUDE, AS DID THE COURTS OF APPEAL FOR THE FIFTH AND EIGHTH
CIRCUITS, THAT THE ADOPTION OF AMENDED RULE 23 DID NOT AND COULD NOT
HAVE BROUGHT ABOUT THIS CHANGE IN THE SCOPE OF THE CONGRESSIONALLY
ENACTED GRANT OF JURISDICTION TO THE DISTRICT COURTS. 

THE DOCTRINE THAT SEPARATE AND DISTINCT CLAIMS COULD NOT BE
AGGREGATED WAS NEVER, AND IS NOT NOW, BASED UPON THE CATEGORIES OF OLD
RULE 23 OR OF ANY RULE OF PROCEDURE.  THAT DOCTRINE IS BASED RATHER
UPON THIS COURT'S INTERPRETATION OF THE STATUTORY PHRASE "MATTER IN
CONTROVERSY."  THE INTERPRETATION OF THIS PHRASE AS PRECLUDING
AGGREGATION SUBSTANTIALLY PREDATES THE 1938 FEDERAL RULES OF CIVIL
PROCEDURE.  IN 1911 THIS COURT SAID IN TROY BANK V. WHITEHEAD & CO.: 

     "WHEN TWO OR MORE PLAINTIFFS, HAVING SEPARATE AND DISTINCT

  DEMANDS, UNITE FOR CONVENIENCE AND ECONOMY IN A SINGLE SUIT, IT

  IS ESSENTIAL THAT THE DEMAND OF EACH BE OF THE REQUISITE

  JURISDICTIONAL AMOUNT.  . . . "  222 U.S. 39-40. 

BY 1916 THIS COURT WAS ABLE TO SAY IN PINEL V. PINEL, 240 U.S. 594,
THAT IT WAS "SETTLED DOCTRINE" THAT SEPARATE AND DISTINCT CLAIMS COULD
NOT BE AGGREGATED TO MEET THE REQUIRED JURISDICTIONAL AMOUNT.  IN CLARK
V. PAUL GRAY, INC., 306 U.S. 583 (1939 ), THIS DOCTRINE, WHICH HAD
FIRST BEEN DECLARED IN CASES INVOLVING JOINDER OF PARTIES, WAS APPLIED
TO CLASS ACTIONS UNDER THE THEN RECENTLY PASSED FEDERAL RULES.  IN THAT
CASE NUMEROUS INDIVIDUALS, PARTNERSHIPS, AND CORPORATIONS JOINED IN
BRINGING A SUIT CHALLENGING THE VALIDITY OF A CALIFORNIA STATUTE WHICH
EXACTED FEES OF $15 ON EACH AUTOMOBILE DRIVEN INTO THE STATE.  RAISING
THE JURISDICTIONAL AMOUNT QUESTION SUA SPONTE, THIS COURT HELD THAT THE
CLAIMS OF THE VARIOUS FEE PAYERS COULD NOT BE AGGREGATED "WHERE THERE
ARE NUMEROUS PLAINTIFFS HAVING NO JOINT OR COMMON INTEREST OR TITLE IN
THE SUBJECT MATTER OF THE SUIT."  306 U.S., AT 588.  NOTHING IN THE
AMENDED RULE 23 CHANGES THIS DOCTRINE.  THE CLASS ACTION PLAINTIFFS IN
THE TWO CASES BEFORE US ARGUE THAT SINCE THE NEW RULE WILL INCLUDE IN
THE JUDGMENT ALL MEMBERS OF THE CLASS WHO DO NOT ASK TO BE OUT BY A
CERTAIN DATE, THE "MATTER IN CONTROVERSY" NOW ENCOMPASSES ALL THE
CLAIMS OF THE ENTIRE CLASS.  BUT IT IS EQUALLY TRUE THAT WHERE TWO OR
MORE PLAINTIFFS JOIN THEIR CLAIMS UNDER THE JOINDER PROVISIONS OF RULE
20, EACH AND EVERY JOINED PLAINTIFF IS BOUND BY THE JUDGMENT.  AND IT
WAS IN JOINDER CASES OF THIS VERY KIND THAT THE DOCTRINE THAT DISTINCT
CLAIMS COULD NOT BE AGGREGATED WAS ORIGINALLY ENUNCIATED.  TROY BANK V.
WHITEHEAD & CO., 222 U.S. 39 (1911); PINEL V. PINEL, 240 U.S. 594
(1916).  THE FACT THAT JUDGMENTS UNDER CLASS ACTIONS FORMERLY
CLASSIFIED AS SPURIOUS MAY NOW HAVE THE SAME EFFECT AS CLAIMS BROUGHT
UNDER THE JOINDER PROVISIONS IS CERTAINLY NO REASON TO TREAT THEM
DIFFERENTLY FROM JOINED ACTIONS FOR PURPOSES OF AGGREGATION. 

ANY CHANGE IN THE RULES THAT DID PURPORT TO EFFECT A CHANGE IN THE
DEFINITION OF "MATTER IN CONTROVERSY" WOULD CLEARLY CONFLICT WITH THE
COMMAND OF RULE 82 THAT "THESE RULES SHALL NOT BE CONSTRUED TO EXTEND
OR LIMIT THE JURISDICTION OF THE UNITED STATES DISTRICT COURTS . . . .
"  IN SIBBACH V. WILSON & CO., THIS COURT HELD THAT THE RULE-MAKING
AUTHORITY WAS LIMITED BY "THE INABILITY OF A COURT, BY RULE, TO EXTEND
OR RESTRICT THE JURISDICTION CONFERRED BY A STATUTE."  312 U.S. 1, 10
(1941).  WE HAVE CONSISTENTLY INTERPRETED THE JURISDICTIONAL STATUTE
PASSED BY CONGRESS AS NOT CONFERRING JURISDICTION WHERE THE REQUIRED
AMOUNT IN CONTROVERSY CAN BE REACHED ONLY BY AGGREGATING SEPARATE AND
DISTINCT CLAIMS.  THE INTERPRETATION OF THAT STATUTE CANNOT BE CHANGED
BY A CHANGE IN THE RULES. 

FOR THE REASONS SET OUT ABOVE, WE THINK THAT IT IS UNMISTAKABLY
CLEAR THAT THE 1966 CHANGES IN RULE 23 DID NOT AND COULD NOT HAVE
CHANGED THE INTERPRETATION OF THE STATUTORY PHRASE "MATTER IN
CONTROVERSY."  IT IS URGED, HOWEVER, THAT THIS COURT SHOULD NOW
OVERRULE ITS ESTABLISHED STATUTORY INTERPRETATION AND HOLD THAT "MATTER
IN CONTROVERSY" ENCOMPASSES THE AGGREGATION OF ALL CLAIMS THAT CAN BE
BROUGHT TOGETHER IN A SINGLE SUIT, REGARDLESS OF WHETHER ANY SINGLE
PLAINTIFF HAS A CLAIM THAT EXCEEDS THE REQUIRED JURISDICTIONAL AMOUNT. 
IT IS ARGUED IN BEHALF OF THIS POSITION THAT (1) THE DETERMINATION OF
WHETHER CLAIMS ARE "SEPARATE AND DISTINCT" IS A TROUBLESOME QUESTION
THAT BREEDS UNCERTAINTY AND NEEDLESS LITIGATION, AND (2) THE INABILITY
OF PARTIES TO AGGREGATE NUMEROUS SMALL CLAIMS WILL PREVENT SOME
IMPORTANT QUESTIONS FROM BEING LITIGATED IN FEDERAL COURTS.  AND BOTH
OF THESE FACTORS, IT IS ARGUED, WILL TEND TO UNDERCUT THE ATTEMPT OF
THE JUDICIAL CONFERENCE TO PROMULGATE EFFICIENT AND MODERNIZED CLASS
ACTION PROCEDURES.  WE THINK THAT WHATEVER THE MERIT OF THESE
CONTENTIONS, THEY ARE NOT SUFFICIENT TO JUSTIFY OUR ABANDONMENT OF A
JUDICIAL INTERPRETATION OF CONGRESSIONAL LANGUAGE THAT HAS STOOD FOR
MORE THAN A CENTURY AND A HALF. 

IT IS LINGUISTICALLY POSSIBLE, OF COURSE, TO INTERPRET THE OLD
CONGRESSIONAL PHRASE "MATTER IN CONTROVERSY" AS INCLUDING ALL CLAIMS
THAT CAN BE JOINED OR BROUGHT IN A SINGLE SUIT THROUGH THE CLASS ACTION
DEVICE.  BUT, BEGINNING WITH THE FIRST JUDICIARY ACT IN 1789 CONGRESS
HAS PLACED A JURISDICTIONAL AMOUNT REQUIREMENT ON ACCESS TO THE FEDERAL
COURTS IN CERTAIN CLASSES OF CASES, INCLUDING DIVERSITY ACTIONS.  THE
INITIAL REQUIREMENT WAS $500 AND A SERIES OF INCREASES HAVE, AS POINTED
OUT ABOVE, FINALLY PLACED THE AMOUNT AT $10,000.  CONGRESS HAS THUS
CONSISTENTLY AMENDED THE AMOUNT-IN-CONTROVERSY SECTION AND RE-ENACTED
THE "MATTER-IN-CONTROVERSY" LANGUAGE WITHOUT CHANGE OF ITS
JURISDICTIONAL EFFECT AGAINST A BACKGROUND OF JUDICIAL INTERPRETATION
THAT HAS CONSISTENTLY INTERPRETED THAT CONGRESSIONALLY ENACTED PHRASE
AS NOT ENCOMPASSING THE AGGREGATION OF SEPARATE AND DISTINCT CLAIMS. 
THIS JUDICIAL INTERPRETATION HAS BEEN UNIFORM SINCE AT LEAST THE 1832
DECISION OF THIS COURT IN OLIVER V. ALEXANDER, 6 PET. 143.  THERE ARE
NO DOUBT HAZARDS AND PITFALLS INVOLVED IN ASSUMING THAT RE-ENACTMENT OF
CERTAIN LANGUAGE BY CONGRESS ALWAYS FREEZES THE EXISTING JUDICIAL
INTERPRETATION OF THE STATUTES INVOLVED.  HERE, HOWEVER, THE SETTLED
JUDICIAL INTERPRETATION OF "AMOUNT IN CONTROVERSY" WAS IMPLICITLY TAKEN
INTO ACCOUNT BY THE RELEVANT CONGRESSIONAL COMMITTEES IN DETERMINING,
IN 1958, THE EXTENT TO WHICH THE JURISDICTIONAL AMOUNT SHOULD BE
RAISED.  IT IS QUITE POSSIBLE, IF NOT PROBABLE, THAT CONGRESS CHOSE THE
INCREASE TO $10,000 RATHER THAN THE PROPOSED INCREASES TO $7,500 OR
$15,000 ON THE BASIS OF WORKLOAD ESTIMATES WHICH CLEARLY RELIED ON THE
SETTLED DOCTRINE THAT SEPARATE AND DISTINCT CLAIMS COULD NOT BE
AGGREGATED.  WHERE CONGRESS HAS CONSISTENTLY RE-ENACTED ITS PRIOR
STATUTORY LANGUAGE FOR MORE THAN A CENTURY AND A HALF IN THE FACE OF A
SETTLED INTERPRETATION OF THAT LANGUAGE, IT IS PERHAPS NOT ENTIRELY
REALISTIC TO DESIGNATE THE RESULTING RULE A "JUDGE-MADE FORMULA." 
TO OVERRULE THE AGGREGATION DOCTRINE AT THIS LATE DATE WOULD RUN
COUNTER TO THE CONGRESSIONAL PURPOSE IN STEADILY INCREASING THROUGH THE
YEARS THE JURISDICTIONAL AMOUNT REQUIREMENT.  THAT PURPOSE WAS TO
CHECK, TO SOME DEGREE, THE RISING CASELOAD OF THE FEDERAL COURTS,
ESPECIALLY WITH REGARD TO THE FEDERAL COURTS' DIVERSITY OF CITIZENSHIP
JURISDICITON.  ANY CHANGE IN THE DOCTRINE OF AGGREGATION IN CLASS
ACTION CASES UNDER RULE 23 WOULD INESCAPABLY HAVE TO BE APPLIED AS WELL
TO THE LIBERAL JOINDER PROVISIONS OF RULE 20 AND TO THE JOINDER OF
CLAIMS PROVISIONS OF RULE 18.  THE RESULT WOULD BE TO ALLOW AGGREGATION
OF PRACTICALLY ANY CLAIMS OF ANY PARTIES THAT FOR ANY REASON HAPPEN TO
BE BROUGHT TOGETHER IN A SINGLE ACTION.  THIS WOULD SERIOUSLY UNDERCUT
THE PURPOSE OF THE JURISDICTIONAL AMOUNT REQUIREMENT.  THE EXPANSION OF
THE FEDERAL CASELOAD COULD BE MOST NOTICEABLE IN CLASS ACTIONS BROUGHT
ON THE BASIS OF DIVERSITY OF CITIZENSHIP.  UNDER CURRENT DOCTRINE, IF
ONE MEMBER OF A CLASS IS OF DIVERSE CITIZENSHIP FROM THE CLASS'
OPPONENT, AND NO NONDIVERSE MEMBERS ARE NAMED PARTIES, THE SUIT MAY BE
BROUGHT IN FEDERAL COURT EVEN THOUGH ALL OTHER MEMBERS OF THE CLASS ARE
CITIZENS OF THE SAME STATE AS THE DEFENDANT AND HAVE NOTHING TO FEAR
FROM TRYING THE LAWSUIT IN THE COURTS OF THEIR OWN STATE.  SEE SUPREME
TRIBE OF BEN-HUR V. CAUBLE, 255 U.S. 356 (1921).  TO ALLOW AGGREGATION
OF CLAIMS WHERE ONLY ONE MEMBER OF THE ENTIRE CLASS IS OF DIVERSE
CITIZENSHIP COULD TRANSFER INTO THE FEDERAL COURTS NUMEROUS LOCAL
CONTROVERSIES INVOLVING EXCLUSIVELY QUESTIONS OF STATE LAW.  IN HEALY
V. RATTA, 292 U.S. 263 (1934), THIS COURT NOTED THAT BY SUCCESSIVELY
RAISING THE JURISDICTIONAL AMOUNT, CONGRESS HAD DETERMINED THAT CASES
INVOLVING LESSER AMOUNTS SHOULD BE LEFT TO BE DEALT WITH BY THE STATE
COURTS AND SAID: 

"THE POLITY OF THE STATUTE CALLS FOR ITS STRICT CONSTRUCTION.  . . .
DUE REGARD FOR THE RIGHTFUL INDEPENDENCE OF STATE GOVERNMENTS, WHICH
SHOULD ACTUATE FEDERAL COURTS, REQUIRES THAT THEY SCRUPULOUSLY CONFINE
THEIR OWN JURISDICTION TO THE PRECISE LIMITS WHICH THE STATUTE HAS
DEFINED."  292 U.S. 263, 270. 

FINALLY, IT HAS BEEN ARGUED THAT UNLESS THE ESTABLISHED AGGREGATION
PRINCIPLES ARE OVERTURNED, THE FUNCTIONAL ADVANTAGES ALLEGED TO INHERE
IN THE NEW CLASS ACTION RULE WILL BE UNDERCUT BY RESORT TO THE OLD
FORMS.  BUT THE DISADVANTAGEOUS RESULTS ARE OVEREMPHASIZED, WE THINK,
SINCE LOWER COURTS HAVE DEVELOPED LARGELY WORKABLE STANDARDS FOR
DETERMINING WHEN CLAIMS ARE JOINT AND COMMON, AND THEREFORE ENTITLED TO
BE AGGREGATED, AND WHEN THEY ARE SEPARATE AND DISTINCT AND THEREFORE
NOT AGREEABLE.  MOREOVER, WHILE THE CLASS ACTION DEVICE SERVES A USEFUL
FUNCTION ACROSS THE ENTIRE RANGE OF LEGAL QUESTIONS, THE JURISDICTIONAL
AMOUNT REQUIREMENT APPLIES ALMOST EXCLUSIVELY TO CONTROVERSIES BASED
UPON DIVERSITY OF CITIZENSHIP.  A LARGE PART OF THOSE MATTERS INVOLVING
FEDERAL QUESTIONS CAN BE BROUGHT, BY WAY OF CLASS ACTIONS OR OTHERWISE,
WITHOUT REGARD TO THE AMOUNT IN CONTROVERSY.  SUITS INVOLVING ISSUES OF
STATE LAW AND BROUGHT ON THE BASIS OF DIVERSITY OF CITIZENSHIP CAN
OFTEN BE MOST APPROPRIATELY TRIED IN STATE COURTS.  THE UNDERLYING
CLAIMS IN THE TWO CASES BEFORE US, FOR EXAMPLE, WILL BE DETERMINED
EXCLUSIVELY ON THE BASIS OF MISSOURI AND KANSAS LAW, RESPECTIVELY.  IN
NO. 109, A SEPARATE SUIT LITIGATING THE UNDERLYING ISSUES HAS ALREADY
BEEN FILED IN A MISSOURI STATE COURT.  IN NO. 117, THE RESIDENTS OF
KANSAS WHO CONTEND THAT CERTAIN GAS SERVICE CHARGES ARE NOT AUTHORIZED
BY KANSAS LAW CAN BRING A CLASS ACTION UNDER KANSAS PROCEDURES THAT ARE
PATTERNED ON FORMER FEDERAL RULE 23.  THERE IS NO COMPELLING REASON FOR
THIS COURT TO OVERTURN A SETTLED INTERPRETATION OF AN IMPORTANT
CONGRESSIONAL STATUTE IN ORDER TO ADD TO THE BURDENS OF AN ALREADY
OVERLOADED FEDERAL COURT SYSTEM.  NOR CAN WE OVERLOOK THE FACT THAT THE
CONGRESS THAT PERMITTED THE FEDERAL RULES TO GO INTO EFFECT WAS ASSURED
BEFORE DOING SO THAT NONE OF THE RULES WOULD EITHER EXPAND OR CONTRACT
THE JURISDICTION OF FEDERAL COURTS.  IF THERE IS A PRESENT NEED TO
EXPAND THE JURISDICTION OF THOSE COURTS WE CANNOT OVERLOOK THE FACT
THAT THE CONSTITUTION SPECIFICALLY VESTS THAT POWER IN CONGRESS, NOT IN
THE COURTS. 

THE JUDGMENT IN NO. 109 IS

  AFFIRMED. 

THE JUDGMENT IN NO. 117 IS

REVERSED. 

/1/  SECTION 11 OF THE JUDICIARY ACT OF 1789, 1 STAT. 78. 

/2/  ACT OF MARCH 3, 1887, 24 STAT. 552. 

/3/  ACT OF MARCH 3, 1911, SEC. 24, 36 STAT. 1091. 

/4/  ACT OF JULY 25, 1958, 72 STAT. 415. 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE COURT TODAY REFUSES TO CONFORM THE JUDGE-MADE FORMULA FOR
COMPUTING THE AMOUNT IN CONTROVERSY IN CLASS ACTIONS WITH THE 1966
AMENDMENT TO RULE 23 OF THE FEDERAL RULES OF CIVIL PROCEDURE.  THE
EFFECT OF THIS REFUSAL IS SUBSTANTIALLY TO UNDERMINE A GENERALLY
WELCOMED AND LONG-NEEDED REFORM IN FEDERAL PROCEDURE.  /1/ 

ITS IMPACT WILL BE NOTICEABLE NOT ONLY IN DIVERSITY OF CITIZENSHIP
CASES BUT ALSO IN IMPORTANT CLASSES OF FEDERAL QUESTION CASES IN WHICH
FEDERAL JURISDICTION MUST BE BASED ON 28 U.S.C. 1331, THE GENERAL
FEDERAL QUESTION PROVISION, RATHER THAN ON ONE OF THE SPECIFIC GRANTS
OF FEDERAL JURISDICTION.  /2/ 

THE ARTIFICIAL, AWKWARD, AND UNWORKABLE DISTINCTIONS BETWEEN
"JOINT," "COMMON," AND "SEVERAL" CLAIMS AND BETWEEN "TRUE," "HYBRID,"
AND "SPURIOUS" CLASS ACTIONS WHICH THE AMENDMENT OF RULE 23 SOUGHT TO
TERMINATE IS NOW RE-ESTABLISHED IN FEDERAL PROCEDURAL LAW.  LITIGANTS,
LAWYERS, AND FEDERAL COURTS MUST NOW CONTINUE TO BE ENSNARED IN THEIR
COMPLEXITIES IN ALL CASES WHERE ONE OR MORE OF THE COPLAINTIFFS HAVE A
CLAIM OF LESS THAN THE JURISDICTIONAL AMOUNT, USUALLY $10,000. 

IT WAS PRECISELY THIS MORASS THAT THE 1966 AMENDMENT TO RULE 23
SOUGHT TO AVOID.  THE AMENDMENT HAD AS ITS PURPOSE TO GIVE THE FEDERAL
DISTRICT COURTS WIDER DISCRETION AS TO THE TYPE OF CLAIMS THAT COULD BE
JOINED IN LITIGATION.  THAT AMENDMENT REPLACED THE METAPHYSICS OF
CONCEPTUAL ANALYSIS OF THE "CHARACTER OF THE RIGHT SOUGHT TO BE
ENFORCED" BY A PRAGMATIC, WORKABLE DEFINITION OF WHEN CLASS ACTIONS
MIGHT BE MAINTAINED, THAT IS, WHEN CLAIMS OF VARIOUS CLAIMANTS MIGHT BE
AGGREGATED IN A CLASS ACTION, AND IT CAREFULLY PROVIDED PROCEDURES AND
SAFEGUARDS TO AVOID UNFAIRNESS.  /3/ 

THE AMENDMENT WAS FORMULATED WITH CARE BY AN ABLE COMMITTEE AND
RECOMMENDED TO THIS COURT BY THE JUDICIAL CONFERENCE OF THE UNITED
STATES PURSUANT TO 28 U.S.C. 331.  /4/  IT WAS ACCEPTED AND PROMULGATED
BY THIS COURT, /5/  AND, WITH CONGRESSIONAL ACQUIESCENCE, BECAME THE
LAW OF THE LAND ON JULY 1, 1966.  28 U.S.C. 2072 (1964 ED., SUPP.
III).  NOW THE COURT, FOR REASONS WHICH IN MY OPINION WILL NOT STAND
ANALYSIS, DEFEATS THE PURPOSE OF THE AMENDMENT AS APPLIED TO CASES LIKE
THOSE BEFORE US HERE AND INSISTS UPON A PERPETUATION OF DISTINCTIONS
WHICH THE PROFESSION HAD HOPED WOULD BECOME ONLY CURIOSITIES OF THE
PAST. 

THE COURT IS LED TO THIS UNFORTUNATE RESULT BY ITS INSISTENCE UPON
REGARDING THE METHOD OF COMPUTING THE AMOUNT IN CONTROVERSY AS EMBODIED
IN AN ACT OF CONGRESS, AS UNAFFECTED BY THE SUBSEQUENT AMENDMENT OF
RULE 23, AND AS IMMUNE FROM JUDICIAL RE-EXAMINATION BECAUSE ANY CHANGE
WOULD BE AN IMPERMISSIBLE EXPANSION OF THE JURISDICTION OF THE COURTS. 
NONE OF THESE PREMISES IS CORRECT. 

        I. 

SINCE THE FIRST JUDICIARY ACT, CONGRESS HAS INCLUDED IN CERTAIN
GRANTS OF JURISDICTION TO THE FEDERAL COURTS-- NOTABLY THE GRANTS OF
JURISDICTION BASED ON DIVERSITY OF CITIZENSHIP /6/  AND THE LATER
ESTABLISHED GRANT OF A GENERAL JURISDICTION TO CONSIDER CASES RAISING
FEDERAL QUESTIONS /7/  -- A REQUIREMENT THAT THE "MATTER IN
CONTROVERSY" EXCEED A STATED AMOUNT OF MONEY.  CONGRESS HAS NEVER
EXPANDED OR EXPLAINED THE BARE WORDS OF THESE SUCCESSIVE JURISDICTIONAL
AMOUNT STATUTES.  OVER THE YEARS THE COURTS THEMSELVES HAVE DEVELOPED A
DETAILED AND COMPLEX SET OF RULES FOR DETERMINING WHEN THE
JURISDICTIONAL AMOUNT REQUIREMENTS ARE MET.  /8/ 

AMONG THESE RULES IS THE PROPOSITION THAT MULTIPLE PARTIES CANNOT
AGGREGATE THEIR "SEPARATE AND DISTINCT" CLAIMS TO REACH THE
JURISDICTIONAL AMOUNT.  E.G., TROY BANK V. WHITEHEAD & CO., 222 U.S.
39, 40 (1911); OLIVER V. ALEXANDER, 6 PET. 143, 147 (1832).  APPLYING
THAT GENERAL PRINCIPLE TO TRADITIONAL PROPERTY LAW CONCEPTS, THE COURTS
DEVELOPED THE MORE SPECIALIZED RULE THAT MULTIPLE PARTIES WHO ASSERTED
VERY SIMILAR LEGAL CLAIMS COULD NOT AGGREGATE THEM TO MAKE UP THE
JURISDICTIONAL AMOUNT IF THEIR INTERESTS, HOWEVER SIMILAR IN FACT, WERE
IN LEGAL THEORY "SEVERAL," E.G., PINEL V. PINEL, 240 U.S. 594 (1916),
BUT THAT SUCH AGGREGATION WAS PERMISSIBLE WHERE THE PARTIES CLAIMED
UNDIVIDED INTERESTS IN A SINGLE "JOINT" RIGHT.  E.G., TEXAS & PACIFIC
R. CO. V. GENTRY, 163 U.S. 353 (1896); SHIELDS V. THOMAS, 17 HOW.  3
(1855). 

THIS GENERAL AGGREGATION RULE, AND ITS MUCH LATER APPLICATION TO
CLASS ACTIONS, /9/  REST ENTIRELY ON JUDICIAL DECISIONS, NOT ON ANY ACT
OF CONGRESS.  THERE IS CERTAINLY NO REASON THE SPECIFIC APPLICATION OF
THIS BODY OF FEDERAL DECISIONAL LAW TO CLASS ACTIONS SHOULD BE IMMUNE
FROM RE-EVALUATION AFTER A FUNDAMENTAL CHANGE IN THE STRUCTURE OF
FEDERAL CLASS ACTIONS HAS MADE ITS CONTINUING APPLICATION WHOLLY
ANOMALOUS.  /10/ 

THE MAJORITY RATHER HALF-HEARTEDLY SUGGESTS THAT THIS JUDICIAL
INTERPRETATION OF THE JURISDICTIONAL AMOUNT STATUTE IS NOT SUBJECT TO
JUDICIAL RE-EVALUATION BECAUSE CONGRESS BY RE-ENACTING THE
JURISDICTIONAL AMOUNT STATUTE FROM TIME TO TIME HAS SOMEHOW EXPRESSED
AN INTENT TO FREEZE ONCE AND FOR ALL THE JUDICIAL INTERPRETATION OF THE
STATUTE.  AS THE MAJORITY FRANKLY ACKNOWLEDGES, THERE ARE "HAZARDS AND
PITFALLS INVOLVED IN ASSUMING THAT RE-ENACTMENT OF CERTAIN LANGUAGE BY
CONGRESS ALWAYS FREEZES THE EXISTING JUDICIAL INTERPRETATION OF THE
STATUTES INVOLVED." 

WHILE RE-ENACTMENT MAY SOMETIMES SIGNIFY ADOPTION, IN MY VIEW THE
APPROPRIATE POSITION ON THE MATTER IS THAT STATED IN GIROUARD V. UNITED
STATES, 328 U.S. 61, 69-70 (1946): 

"'IT WOULD REQUIRE VERY PERSUASIVE CIRCUMSTANCES ENVELOPING
CONGRESSIONAL SILENCE TO DEBAR THIS COURT FROM REEXAMINING ITS OWN
DOCTRINES.'  IT IS AT BEST TREACHEROUS TO FIND IN CONGRESSIONAL SILENCE
ALONE THE ADOPTION OF A CONTROLLING RULE OF LAW.  . . . THE SILENCE OF
CONGRESS AND ITS INACTION ARE AS CONSISTENT WITH A DESIRE TO LEAVE THE
PROBLEM FLUID AS THEY ARE WITH AN ADOPTION BY SILENCE OF THE RULE OF
THOSE CASES."  /11/ THIS CASE, FAR FROM BEING ONE IN WHICH THERE ARE
"VERY PERSUASIVE CIRCUMSTANCES" INDICATING CONGRESSIONAL ADOPTION OF
PRIOR JUDICIAL DOCTRINES, IS ONE WHERE ONLY BY THE MOST OBVIOUS FICTION
CAN CONGRESSIONAL RE-ENACTMENT OF A GENERAL STATUTE BE SAID TO MANIFEST
AN INTENTION TO ADOPT AND PERPETUATE AN EXISTING TECHNICAL JUDICIAL
DOCTRINE DESIGNED TO FACILITATE ADMINISTRATION OF THE STATUTE. 

THE HEARINGS AND REPORTS ON THE 1958 STATUTE RAISING THE
JURISDICTIONAL AMOUNT FROM $3,000 TO $10,000-- WHICH THE MAJORITY
FASTENS ON AS THE ADOPTING RE-ENACTMENT-- INCLUDE NOT ONE WORD ABOUT
THE WHOLE COMPLEX BODY OF RULES BY WHICH COURTS DETERMINE WHEN THE
AMOUNT IS AT ISSUE, MUCH LESS ANY REFERENCE TO THE PARTICULAR PROBLEM
OF AGGREGATION OF CLAIMS IN CLASS ACTION CASES.  /12/  THE MAJORITY
SPECULATES THAT IT IS "POSSIBLE, IF NOT PROBABLE," THAT CONGRESS
"IMPLICITLY" TOOK INTO ACCOUNT THE EXISTING AGGREGATION DOCTRINES AS
APPLIED TO CLASS ACTION CASES WHEN IT DECIDED TO RAISE THE
JURISDICTIONAL AMOUNT TO $10,000 RATHER THAN SOME HIGHER OR LOWER
AMOUNT.  IF WE ARE TO ATTRIBUTE TO CONGRESS ANY THOUGHTS ON THIS HIGHLY
TECHNICAL AND SPECIALIZED MATTER, IT SEEMS TO ME FAR MORE REASONABLE TO
ASSUME THAT CONGRESS WAS AWARE THAT THE COURTS HAD BEEN DEVELOPING THE
INTERPRETATION OF THE JURISDICTIONAL AMOUNT REQUIREMENT IN CLASS
ACTIONS AND WOULD CONTINUE TO DO SO AFTER THE 1958 AMENDMENTS. 

I CANNOT FIND ANY MEANINGFUL SENSE IN WHICH THE AGGREGATION
DOCTRINES IN CLASS ACTION CASES SHOULD BE ANY LESS SUBJECT TO RE
EVALUATION IN THE LIGHT OF NEW CONDITIONS BECAUSE CONGRESS IN 1958 RE
ENACTED THE JURISDICTIONAL AMOUNT STATUTE TO RAISE THE DOLLAR AMOUNT
REQUIRED. 

        II. 

WHATEVER THE PRE-1966 STATUS OF THE AGGREGATION DOCTRINES IN CLASS
ACTION CASES, THE AMENDMENT OF THE RULES IN THAT YEAR PERMITS AND EVEN
REQUIRES A RE-EXAMINATION OF THE APPLICATION OF THE DOCTRINES TO SUCH
CASES.  THE FUNDAMENTAL CHANGE IN THE LAW OF CLASS ACTIONS EFFECTED BY
THE NEW RULE 23 REQUIRES THAT PRIOR SUBSIDIARY JUDICIAL DOCTRINES
DEVELOPED FOR APPLICATION TO THE OLD RULE BE HARMONIZED WITH THE NEW
PROCEDURAL LAW.  BY ACT OF CONGRESS, THE RULES OF PROCEDURE, WHEN
PROMULGATED ACCORDING TO THE STATUTORILY DEFINED PROCESS, HAVE THE
EFFECT OF LAW AND SUPERSEDE ALL PRIOR LAWS IN CONFLICT WITH THEM.  28
U.S.C. 2072 (1964 ED., SUPP. III).  THUS, EVEN IF THE OLD AGGREGATION
DOCTRINES WERE EMBODIED IN STATUTE-- AS THEY ARE NOT-- THEY COULD NOT
STAND IF THEY CONFLICTED WITH THE NEW RULE. 

UNDER THE PRE-1966 VERSION OF RULE 23 THE VERY AVAILABILITY OF THE
CLASS ACTION DEVICE DEPENDED ON THE "JOINT" OR "COMMON" "CHARACTER OF
THE RIGHT SOUGHT TO BE ENFORCED."  /13/  IF THE RIGHT WERE MERELY
"SEVERAL," ONLY A "SPURIOUS" CLASS ACTION COULD BE MAINTAINED AND ONLY
THOSE MEMBERS OF THE CLASS WHO ACTUALLY APPEARED AS PARTIES WERE BOUND
BY THE JUDGMENT.  /14/  IT WAS IN THIS CONTEXT OF A LAW OF CLASS
ACTIONS ALREADY HEAVILY DEPENDENT ON CATEGORIZATION OF INTERESTS AS
"JOINT" OR "SEVERAL" THAT THE TRADITIONAL AGGREGATION DOCTRINES WERE
ORIGINALLY APPLIED TO CLASS ACTIONS UNDER THE FEDERAL RULES.  IN SUCH A
CONTEST THOSE AGGREGATION DOCTRINES WHICH THE MAJORITY NOW PERPETUATES
IN THE QUITE DIFFERENT CONTEXT OF THE NEW RULE, WHATEVER THEIR OTHER
DEFECTS, WERE AT LEAST NOT ANOMALOUS AND ECCENTRIC.     SCHOLARLY AND
PROFESSIONAL CRITICISM OF THE "CHARACTER OF INTEREST"  CLASSIFICATION
SCHEME WAS VIGOROUS AND DISTINGUISHED.  /15/  COURTS AS WELL FOUND THE
OLD RULE 23 CATEGORIES CONFUSING AND UNHELPFUL IN MAKING PRACTICAL
DECISIONS.  NOT ONLY WAS THE CATEGORIZATION DIFFICULT, /16/  BUT
DIVIDING GROUP INTERESTS ACCORDING TO WHETHER THEY WERE "JOINT" OR
"SEVERAL" DID NOT ISOLATE THOSE CASES IN WHICH A CLASS ACTION WAS
APPROPRIATE FROM THOSE IN WHICH IT WAS NOT.  /17/  IN PROPOSING
AMENDMENT OF RULE 23, THE ADVISORY COMMITTEE SUMMED UP EXPERIENCE UNDER
THE OLD RULE SAYING: 

     "IN PRACTICE THE TERMS 'JOINT,' 'COMMON,' ETC., WHICH WERE
USED

  AS THE BASIS OF THE RULE 23 CLASSIFICATION PROVED OBSCURE AND

  UNCERTAIN."  39 F.R.D. 98. 

IN RESPONSE TO THE DEMONSTRATED INAPPROPRIATENESS OF THE "CHARACTER
OF INTEREST" CATEGORIZATION, THE RULE DEALING WITH CLASS ACTIONS WAS
FUNDAMENTALLY AMENDED, EFFECTIVE IN JULY 1966.  UNDER THE NEW RULE THE
FOCUS SHIFTS FROM THE ABSTRACT CHARACTER OF THE RIGHT ASSERTED TO
EXPLICIT ANALYSIS OF THE SUITABILITY OF THE PARTICULAR CLAIM TO
RESOLUTION IN A CLASS ACTION.  THE DECISION THAT A CLASS ACTION IS
APPROPRIATE IS NOT TO BE TAKEN LIGHTLY; THE DISTRICT COURT MUST
CONSIDER THE FULL RANGE OF RELEVANT FACTORS SPECIFIED IN THE RULE. 
HOWEVER, WHETHER A CLAIM IS, IN TRADITIONAL TERMS, "JOINT" OR "SEVERAL"
NO LONGER HAS ANY NECESSARY RELEVANCE TO WHETHER A CLASS ACTION IS
PROPER.  THUS, THE AMENDED RULE 23, WHICH IN THE AREA OF ITS OPERATION
HAS THE EFFECT OF A STATUTE, STATES A NEW METHOD FOR DETERMINING WHEN
THE COMMON INTERESTS OF MANY INDIVIDUALS CAN BE ASSERTED AND RESOLVED
IN A SINGLE LITIGATION. 

THE JURISDICTIONAL AMOUNT STATUTES REQUIRE PLACING A VALUE ON THE
"MATTER IN CONTROVERSY" IN A CIVIL ACTION.  ONCE IT IS DECIDED UNDER
THE NEW RULE THAT AN ACTION MAY BE MAINTAINED AS A CLASS ACTION, IT IS
THE CLAIM OF THE WHOLE CLASS AND NOT THE INDIVIDUAL ECONOMIC STAKES OF
THE SEPARATE MEMBERS OF THE CLASS WHICH IS THE "MATTER IN
CONTROVERSY."  THAT THIS IS SO IS PERHAPS MOST CLEARLY INDICATED BY THE
FACT THAT THE JUDGMENT IN A CLASS ACTION, PROPERLY MAINTAINED AS SUCH,
INCLUDES ALL MEMBERS OF THE CLASS.  RULE 23(C)(3).  THIS EFFECT OF THE
NEW RULE IN BROADENING THE SCOPE OF THE "CONTROVERSY" IN A CLASS ACTION
TO INCLUDE THE COMBINED INTERESTS OF ALL THE MEMBERS OF THE CLASS IS
ILLUSTRATED BY THE FACTS OF NO. 117.  THAT CLASS ACTION, IF ALLOWED TO
PROCEED, WOULD, UNDER THE RULE, DETERMINE NOT MERELY WHETHER THE GAS
COMPANY WRONGFULLY COLLECTED $7.81 FOR TAXES FROM MR. COBURN.  IT WOULD
ALSO RESULT IN A JUDGMENT WHICH, SUBJECT TO THE LIMITS OF DUE PROCESS,
/18/  WOULD DETERMINE-- AUTHORITATIVELY AND NOT MERELY AS A MATTER OF
PRECEDENT-- THE STATUS OF THE TAXES COLLECTED FROM THE 18,000 OTHER
PEOPLE ALLEGEDLY IN THE CLASS COBURN SEEKS TO REPRESENT.  /19/  THAT
BEING THE CASE, IT IS HARD TO UNDERSTAND WHY THE FACT THAT THE ALLEGED
CLAIMS ARE, IN TERMS OF THE OLD RULE CATEGORIES, "SEVERAL" RATHER THAN
"JOINT," MEANS THAT THE "MATTER IN CONTROVERSY" FOR JURISDICTIONAL
AMOUNT PURPOSES MUST BE REGARDED AS THE $7.81 MR. COBURN CLAIMS INSTEAD
OF THE THOUSANDS OF DOLLARS OF ALLEGED OVERCHARGES OF THE WHOLE CLASS,
THE STATUS OF ALL OF WHICH WOULD BE DETERMINED BY THE JUDGMENT. 

IN PAST DEVELOPMENT OF RULES CONCERNING THE JURISDICTIONAL AMOUNT
REQUIREMENT, THE COURTS HAVE, PROPERLY, RESPONDED TO CHANGES IN THE
PROCEDURAL AND SUBSTANTIVE LAW.  /20/  NOW, CONFRONTED BY AN ISSUE OF
THE MEANING OF THE JURISDICTIONAL AMOUNT REQUIREMENT ARISING IN THE
CONTEXT OF A NEW PROCEDURAL LAW OF CLASS ACTIONS, WE SHOULD CONTINUE TO
TAKE ACCOUNT OF SUCH CHANGES.  WE SHOULD NOT ALLOW THE JUDICIAL
INTERPRETATION OF THE JURISDICTIONAL AMOUNT REQUIREMENT TO BECOME
PETRIFIED INTO FORMS WHICH ARE PRODUCTS OF, AND APPROPRIATE TO, ANOTHER
TIME.  TO DO THIS WOULD VITIATE A SIGNIFICANT PART OF THE REFORM
INTENDED TO BE ACCOMPLISHED BY THE AMENDMENT OF RULE 23.  FOR THE
MAJORITY RESULT WILL CONTINUE TO MAKE DETERMINATIVE OF THE
MAINTAINABILITY OF A CLASS ACTION JUST THAT OBSOLETE CONCEPTUALISM THE
AMENDED RULE SOUGHT TO MAKE IRRELEVANT.  IN THIS SENSE, CONTINUED
ADHERENCE TO THE OLD AGGREGATION DOCTRINES CONFLICTS WITH THE NEW RULE
AND IS IMPROPER UNDER 28 U.S.C. 2072 (1964 ED., SUPP. III). 

        III. 

PERMITTING AGGREGATION IN CLASS ACTION CASES DOES NOT INVOLVE ANY
VIOLATION OF THE PRINCIPLE, EXPRESSED IN RULE 82 AND INHERENT IN THE
WHOLE PROCEDURE FOR THE PROMULGATION AND AMENDMENT OF THE FEDERAL
RULES, THAT THE COURTS CANNOT BY RULE EXPAND THEIR OWN JURISDICTIONS. 
WHILE THE RULES CANNOT CHANGE SUBJECT-MATTER JURISDICTION, CHANGES IN
THE FORMS AND PRACTICES OF THE FEDERAL COURTS THROUGH CHANGES IN THE
RULES FREQUENTLY AND NECESSARILY WILL AFFECT THE OCCASIONS ON WHICH
SUBJECT-MATTER JURISDICTION IS EXERCISED, BECAUSE THEY WILL IN SOME
CASES MAKE A DIFFERENCE IN WHAT CASES THE FEDERAL COURTS WILL HEAR AND
WHO WILL BE AUTHORITATIVELY BOUND BY THE JUDGMENT.  /21/  FOR EXAMPLE,
THE DEVELOPMENT OF THE LAW OF JOINDER AND ANCILLARY JURISDICTION UNDER
THE FEDERAL RULES HAS INFLUENCED THE "JURISDICTION" OF THE FEDERAL
COURTS IN THIS BROADER SENSE.  /22/  INDEED, THE PROMULGATION OF THE
OLD RULE 23 PROVIDED A NEW MEANS FOR RESOLVING IN A SINGLE FEDERAL
LITIGATION, BASED ON DIVERSITY JURISDICTION, THE CLAIMS OF ALL MEMBERS
OF A CLASS, EVEN THOUGH SOME IN THE CLASS WERE NOT OF DIVERSE
CITIZENSHIP FROM PARTIES ON THE OTHER SIDE.  /23/  SIMILARLY, THE
CREATION IN A RULE HAVING STATUTORY EFFECT OF A NEW TYPE OF CLASS
ACTION-- ONE MEETING THE REQUIREMENTS OF THE NEW RULE AS TO SUITABILITY
FOR CLASS-WIDE RESOLUTION, ALTHOUGH INVOLVING "SEVERAL" INTERESTS OF
THE MEMBERS OF THE CLASS-- HAS CHANGED THE PROCEDURAL CONTEXT IN WHICH
THE SUBJECT-MATTER-JURISDICTION STATUTES, LIKE THOSE REFERRING TO
JURISDICTIONAL AMOUNT, ARE TO BE APPLIED.  MAKING JUDICIAL RULES FOR
CALCULATING JURISDICTIONAL AMOUNT RESPONSIVE TO THE NEW STRUCTURE OF
CLASS ACTIONS IS NOT AN EXTENSION OF THE JURISDICTION OF THE FEDERAL
COURTS, BUT A RECOGNITION THAT THE PROCEDURAL FRAMEWORK IN WHICH THE
COURTS OPERATE HAS BEEN CHANGED BY A PROVISION HAVING THE EFFECT OF
LAW. 

IN A LARGER SENSE AS WELL, ABANDONMENT OF THE OLD AGGREGATION RULES
FOR CLASS ACTIONS WOULD FULFILL RATHER THAN CONTRADICT THE COMMAND THAT
COURTS ADHERE TO THE JURISDICTIONAL BOUNDARIES ESTABLISHED BY
CONGRESS.  IN A LARGE NUMBER OF INSTANCES, CONGRESS HAS SAID THAT CASES
RAISING CLAIMS WITH A CERTAIN SUBJECT MATTER MAY BE HEARD IN FEDERAL
COURTS REGARDLESS OF THE AMOUNT INVOLVED.  HOWEVER, IT HAS ALSO
PROVIDED GENERALLY THAT IN THE TWO GREAT AREAS OF ARTICLE III
JURISDICTION-- FEDERAL QUESTIONS AND DIVERSITY OF CITIZENSHIP-- ANY
SUIT, REGARDLESS OF SPECIFIC SUBJECT MATTER, MAY BE HEARD IF "THE
MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF $10,000."  JUST AS IT
WOULD BE WRONG FOR THE COURTS TO EXERCISE A JURISDICTION NOT PROPERLY
THEIRS, SO IT WOULD BE WRONG FOR THE COURTS TO REFUSE TO EXERCISE A
PART OF THE JURISDICTION GRANTED THEM BECAUSE OF A VIEW THAT CONGRESS
ERRED IN GRANTING IT. 

THE NEW RULE 23, BY REDEFINING THE LAW OF CLASS ACTIONS, HAS, WITH
THE EFFECT OF STATUTE, PROVIDED FOR A DECISION BY THE DISTRICT COURTS
THAT THE NOMINALLY SEPARATE AND LEGALLY "SEVERAL" CLAIMS OF INDIVIDUALS
MAY BE SO MUCH ALIKE THAT THEY CAN BE TRIED ALL AT ONCE, AS IF THERE
WERE JUST ONE CLAIM, IN A SINGLE PROCEEDING IN WHICH MOST MEMBERS OF
THE CLASS ASSERTING THE CLAIM WILL NOT BE PERSONALLY PRESENT AT ALL. 
WHEN THAT DETERMINATION HAS BEEN MADE, IN ACCORDANCE WITH THE
PAINSTAKING DEMANDS OF RULE 23, THERE IS AUTHORIZED TO BE BROUGHT IN
THE FEDERAL COURTS A SINGLE LITIGATION, IN WHICH, BOTH PRACTICALLY AND
IN LEGAL THEORY, THE THING AT STAKE, THE "MATTER IN CONTROVERSY," IS
THE TOTAL, COMBINED, AGGREGATED CLAIM OF THE WHOLE CLASS.  WHEN THAT
HAPPENS THE COURTS DO NOT OBEY, BUT VIOLATE, THE JURISDICTIONAL
STATUTES IF THEY CONTINUE TO IMPOSE ANCIENT AND ARTIFICIAL JUDICIAL
DOCTRINES TO FRAGMENT WHAT IS IN EVERY OTHER RESPECT A SINGLE CLAIM,
WHICH THE COURTS ARE COMMANDED TO STAND READY TO HEAR. 

FOR THESE REASONS, I WOULD MEASURE THE VALUE OF THE "MATTER IN
CONTROVERSY" IN A CLASS ACTION FOUND OTHERWISE PROPER UNDER THE AMENDED
RULE 23 BY THE MONETARY VALUE OF THE CLAIM OF THE WHOLE CLASS. 

/1/  ON THE BACKGROUND OF THE AMENDMENT TO RULE 23 AND ITS
RECEPTION, SEE, E.G., KAPLAN, CONTINUING WORK OF THE CIVIL COMMITTEE:
1966 AMENDMENTS OF THE FEDERAL RULES OF CIVIL PROCEDURE (I), 81
HARV.L.REV.  356, 380-386 (1967); COHN, THE NEW FEDERAL RULES OF CIVIL
PROCEDURE, 54 GEO.L.J. 1204, 1213-1214 (1966); NOTE, PROPOSED RULE 23:
CLASS ACTIONS RECLASSIFIED, 51 VA.L.REV.  629, 630-636 (1965).  SEE
ALSO 2 W.BARRON & A. HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE SEC. 561
AND N. 15.1 (C. WRIGHT ED. 1968 POCKET PART) (HEREINAFTER CITED AS
BARRON & HOLTZOFF).  EVEN COMMENTATORS CRITICAL OF THE APPARENT BREADTH
OF THE NEW RULE WELCOMED ABOLITION OF THE CATEGORIES OF THE OLD RULE. 
E.G., FORD, THE HISTORY AND DEVELOPMENT OF OLD RULE 23 AND THE
DEVELOPMENT OF AMENDED RULE 23, 32 ABA ANTITRUST L.J. 254, 257-258
(1966). 

/2/  THE MAJORITY SAYS BROADLY, "A LARGE PART OF THOSE MATTERS
INVOLVING FEDERAL QUESTIONS CAN BE BROUGHT, BY WAY OF CLASS ACTIONS OR
OTHERWISE, WITHOUT REGARD TO THE AMOUNT IN CONTROVERSY."  ANTE, AT
341.  HOWEVER, IN AT LEAST ONE VITALLY IMPORTANT TYPE OF FEDERAL
QUESTION CASE-- AN ACTION ALLEGING THAT GOVERNMENTAL ACTION, STATE OR
FEDERAL, VIOLATES CONSTITUTIONAL LIMITS-- THE TASK OF DEMONSTRATING THE
EXISTENCE OF FEDERAL JURISDICTION WOULD IN MANY INSTANCES BE
SIGNIFICANTLY COMPLICATED IF 28 U.S.C. 1331 WERE NOT AVAILABLE.  THERE
ARE, TO BE SURE, A LARGE NUMBER OF SPECIFIC STATUTORY PROVISIONS
CONFERRING ON THE FEDERAL COURTS JURISDICTION TO HEAR CERTAIN TYPES OF
FEDERAL QUESTION CASES.  NO DOUBT MANY CONSTITUTIONAL CASES COULD
ULTIMATELY BE BROUGHT WITHIN ONE OF THESE SPECIAL PROVISIONS.  HOWEVER,
THE PITFALLS OF SEEKING TO ESTABLISH FEDERAL JURISDICTION IN A
CONSTITUTIONAL ACTION AGAINST PUBLIC OFFICIALS WITHOUT RESORT TO 28
U.S.C. 1331 ARE SUGGESTED BY THE DIVERSITY OF OPINIONS IN HAGUE V. CIO,
307 U.S. 496 (1939).  EVEN IF 28 U.S.C. 1343 PROVIDES A BASIS FOR
JURISDICTION OF SUCH AN ACTION AGAINST STATE OFFICIALS, SEE PIERSON V.
RAY, 386 U.S. 547 (1967); MONROE V. PAPE, 365 U.S. 167 (1961), THAT
STATUTE IS NO HELP TO ONE CHALLENGING PURELY FEDERAL ACTION.  WHEELDIN
V. WHEELER, 373 U.S. 647, 650 AND N. 2 (1963).  SEE GENERALLY
FRIEDENTHAL, NEW LIMITATIONS ON FEDERAL JURISDICTION, 11 STAN.L.REV. 
213, 216-218 (1959). 

/3/  THE RULE, AS AMENDED, READS: 

"RULE 23.  CLASS ACTIONS 

"(A) PREREQUISITES TO A CLASS ACTION.  ONE OR MORE MEMBERS OF A
CLASS MAY SUE OR BE SUED AS REPRESENTATIVE PARTIES ON BEHALF OF ALL
ONLY IF (1) THE CLASS IS SO NUMEROUS THAT JOINDER OF ALL MEMBERS IS
IMPRACTICABLE, (2) THERE ARE QUESTIONS OF LAW OR FACT COMMON TO THE
CLASS, (3) THE CLAIMS OR DEFENSES OF THE REPRESENTATIVE PARTIES ARE
TYPICAL OF THE CLAIMS OR DEFENSES OF THE CLASS, AND (4) THE
REPRESENTATIVE PARTIES WILL FAIRLY AND ADEQUATELY PROTECT THE INTERESTS
OF THE CLASS. 

"(B) CLASS ACTIONS MAINTAINABLE.  AN ACTION MAY BE MAINTAINED AS A
CLASS ACTION IF THE PREREQUISITES OF SUBDIVISION (A) ARE SATISFIED, AND
IN ADDITION: 

"(1) THE PROSECUTION OF SEPARATE ACTIONS BY OR AGAINST INDIVIDUAL
MEMBERS OF THE CLASS WOULD CREATE A RISK OF 

"(A) INCONSISTENT OR VARYING ADJUDICATIONS WITH RESPECT TO
INDIVIDUAL MEMBERS OF THE CLASS WHICH WOULD ESTABLISH INCOMPATIBLE
STANDARDS OF CONDUCT FOR THE PARTY OPPOSING THE CLASS, OR 

"(B) ADJUDICATIONS WITH RESPECT TO INDIVIDUAL MEMBERS OF THE CLASS
WHICH WOULD AS A PRACTICAL MATTER BE DISPOSITIVE OF THE INTERESTS OF
THE OTHER MEMBERS NOT PARTIES TO THE ADJUDICATIONS OR SUBSTANTIALLY
IMPAIR OR IMPEDE THEIR ABILITY TO PROTECT THEIR INTERESTS; OR 

"(2) THE PARTY OPPOSING THE CLASS HAS ACTED OR REFUSED TO ACT ON
GROUNDS GENERALLY APPLICABLE TO THE CLASS, THEREBY MAKING APPROPRIATE
FINAL INJUNCTIVE RELIEF OR CORRESPONDING DECLARATORY RELIEF WITH
RESPECT TO THE CLASS AS A WHOLE; OR 

"(3) THE COURT FINDS THAT THE QUESTIONS OF LAW OR FACT COMMON TO THE
MEMBERS OF THE CLASS PREDOMINATE OVER ANY QUESTIONS AFFECTING ONLY
INDIVIDUAL MEMBERS, AND THAT A CLASS ACTION IS SUPERIOR TO OTHER
AVAILABLE METHODS FOR THE FAIR AND EFFICIENT ADJUDICATION OF THE
CONTROVERSY.  THE MATTERS PERTINENT TO THE FINDINGS INCLUDE:  (A) THE
INTEREST OF MEMBERS OF THE CLASS IN INDIVIDUALLY CONTROLLING THE
PROSECUTION OR DEFENSE OF SEPARATE ACTIONS; (B) THE EXTENT AND NATURE
OF ANY LITIGATION CONCERNING THE CONTROVERSY ALREADY COMMENCED BY OR
AGAINST MEMBERS OF THE CLASS; (C) THE DESIRABILITY OR UNDESIRABILITY OF
CONCENTRATING THE LITIGATION OF THE CLAIMS IN THE PARTICULAR FORUM; (D)
THE DIFFICULTIES LIKELY TO BE ENCOUNTERED IN THE MANAGEMENT OF A CLASS
ACTION. 

"(C) DETERMINATION BY ORDER WHETHER CLASS ACTION TO BE MAINTAINED;
NOTICE; JUDGMENT; ACTIONS CONDUCTED PARTIALLY AS CLASS ACTIONS. 

"(1) AS SOON AS PRACTICABLE AFTER THE COMMENCEMENT OF AN ACTION
BROUGHT AS A CLASS ACTION, THE COURT SHALL DETERMINE BY ORDER WHETHER
IT IS TO BE SO MAINTAINED.  AN ORDER UNDER THIS SUBDIVISION MAY BE
CONDITIONAL, AND MAY BE ALTERED OR AMENDED BEFORE THE DECISION ON THE
MERITS. 

"(2) IN ANY CLASS ACTION MAINTAINED UNDER SUBDIVISION (B)(3), THE
COURT SHALL DIRECT TO THE MEMBERS OF THE CLASS THE BEST NOTICE
PRACTICABLE UNDER THE CIRCUMSTANCES, INCLUDING INDIVIDUAL NOTICE TO ALL
MEMBERS WHO CAN BE IDENTIFIED THROUGH REASONABLE EFFORT.  THE NOTICE
SHALL ADVISE EACH MEMBER THAT (A) THE COURT WILL EXCLUDE HIM FROM THE
CLASS IF HE SO REQUESTS BY A SPECIFIED DATE; (B) THE JUDGMENT, WHETHER
FAVORABLE OR NOT, WILL INCLUDE ALL MEMBERS WHO DO NOT REQUEST
EXCLUSION; AND (C) ANY MEMBER WHO DOES NOT REQUEST EXCLUSION MAY, IF HE
DESIRES, ENTER AN APPEARANCE THROUGH HIS COUNSEL.     "(3) THE JUDGMENT
IN AN ACTION MAINTAINED AS A CLASS ACTION UNDER SUBDIVISION (B)(1) OR
(B)(2), WHETHER OR NOT FAVORABLE TO THE CLASS, SHALL INCLUDE AND
DESCRIBE THOSE WHOM THE COURT FINDS TO BE MEMBERS OF THE CLASS.  THE
JUDGMENT IN AN ACTION MAINTAINED AS A CLASS ACTION UNDER SUBDIVISION
(B)(3), WHETHER OR NOT FAVORABLE TO THE CLASS, SHALL INCLUDE AND
SPECIFY OR DESCRIBE THOSE TO WHOM THE NOTICE PROVIDED IN SUBDIVISION
(C)(2) WAS DIRECTED, AND WHO HAVE NOT REQUESTED EXCLUSION, AND WHOM THE
COURT FINDS TO BE MEMBERS OF THE CLASS. 

"(4) WHEN APPROPRIATE (A) AN ACTION MAY BE BROUGHT OR MAINTAINED AS
A CLASS ACTION WITH RESPECT TO PARTICULAR ISSUES, OR (B) A CLASS MAY BE
DIVIDED INTO SUBCLASSES AND EACH SUBCLASS TREATED AS A CLASS, AND THE
PROVISIONS OF THIS RULE SHALL THEN BE CONSTRUED AND APPLIED
ACCORDINGLY. 

"(D) ORDERS IN CONDUCT OF ACTIONS.  IN THE CONDUCT OF ACTIONS TO
WHICH THIS RULE APPLIES, THE COURT MAY MAKE APPROPRIATE ORDERS:  (1)
DETERMINING THE COURSE OF PROCEEDINGS OR PRESCRIBING MEASURES TO
PREVENT UNDUE REPETITION OR COMPLICATION IN THE PRESENTATION OF
EVIDENCE OR ARGUMENT; (2) REQUIRING, FOR THE PROTECTION OF THE MEMBERS
OF THE CLASS OR OTHERWISE FOR THE FAIR CONDUCT OF THE ACTION, THAT
NOTICE BE GIVEN IN SUCH MANNER AS THE COURT MAY DIRECT TO SOME OR ALL
OF THE MEMBERS OF ANY STEP IN THE ACTION, OR OF THE PROPOSED EXTENT OF
THE JUDGMENT, OR OF THE OPPORTUNITY OF MEMBERS TO SIGNIFY WHETHER THEY
CONSIDER THE REPRESENTATION FAIR AND ADEQUATE, TO INTERVENE AND PRESENT
CLAIMS OR DEFENSES, OR OTHERWISE TO COME INTO THE ACTION; (3) IMPOSING
CONDITIONS ON THE REPRESENTATIVE PARTIES OR ON INTERVENORS; (4)
REQUIRING THAT THE PLEADINGS BE AMENDED TO ELIMINATE THEREFROM
ALLEGATIONS AS TO REPRESENTATION OF ABSENT PERSONS, AND THAT THE ACTION
PROCEED ACCORDINGLY; (5) DEALING WITH SIMILAR PROCEDURAL MATTERS.  THE
ORDERS MAY BE COMBINED WITH AN ORDER UNDER RULE 16, AND MAY BE ALTERED
OR AMENDED AS MAY BE DESIRABLE FROM TIME TO TIME. 

"(E) DISMISSAL OR COMPROMISE.  A CLASS ACTION SHALL NOT BE DISMISSED
OR COMPROMISED WITHOUT THE APPROVAL OF THE COURT, AND NOTICE OF THE
PROPOSED DISMISSAL OR COMPROMISE SHALL BE GIVEN TO ALL MEMBERS OF THE
CLASS IN SUCH MANNER AS THE COURT DIRECTS.  (AS AMENDED FEB. 28, 1966,
EFF. JULY 1, 1966.)" 

/4/  1965 U.S. JUDICIAL CONF. PROCEEDINGS REP. 52-53.  SEE KAPLAN,
SUPRA, N. 1, AT 357-358. 

/5/  383 U.S. 1031 (1966). 

/6/  28 U.S.C. 1332. 

/7/  28 U.S.C. 1331.  OTHER JURISDICTIONAL STATUTES PROVIDING A
MONETARY REQUIREMENT INCLUDE 28 U.S.C. 1335 (INTERPLEADER); SEC. 1346
(CLAIMS AGAINST UNITED STATES); SEC. 1445 (REMOVAL OF CERTAIN ACTIONS
AGAINST CARRIERS). 

/8/  SEE GENERALLY 1 J. MOORE, FEDERAL PRACTICE PARAS. 0.90-0.99; 1
BARRON & HOLTZOFF SEC. 24; ILSEN & SARDELL, THE MONETARY MINIMUM IN
FEDERAL COURT JURISDICTION; I, 29 ST. JOHN'SL.REV.  1 (1954); ID., II,
P. 183 (1955); NOTE, FEDERAL JURISDICTIONAL AMOUNT:  DETERMINATION OF
THE MATTER IN CONTROVERSY, 73 HARV.L.REV.  1369 (1960). 

/9/  CLARK V. PAUL GRAY, INC., 306 U.S. 583 (1939); BUCK V.
GALLAGHER, 307 U.S. 95 (1939).  SEE THOMSON V. GASKILL, 315 U.S. 442
(1942). 

/10/  FOR A CRITICISM OF THE AGGREGATION DOCTRINE IN ANOTHER
CONTEXT, SEE NOTE, THE FEDERAL JURISDICTIONAL AMOUNT REQUIREMENT AND
JOINDER OF PARTIES UNDER THE FEDERAL RULES OF CIVIL PROCEDURE, 27
IND.L.J. 199 (1952). 

/11/  SEE ALSO HELVERING V. REYNOLDS, 313 U.S. 428, 432 (1941);
NOTE, LEGISLATIVE ADOPTION OF PRIOR JUDICIAL CONSTRUCTION:  THE
GIROUARD CASE AND THE REENACTMENT RULE, 59 HARV.L.REV.  1277 (1946). 
IN FRANCIS V. SOUTHERN PACIFIC CO., 333 U.S. 445, 450 (1948), THE
MAJORITY NOTED THE DIFFICULTY OF REGARDING RE-ENACTMENT AS A
CONGRESSIONAL ADOPTION OF EXISTING JUDICIAL DOCTRINES, BUT DECIDED THAT
"IN THE SETTING OF THIS CASE" ADOPTION WAS IMPLIED.  THE DISSENT
RESPONDED: "IF JUDGES MAKE RULES OF LAW IT WOULD SEEM THAT THEY SHOULD
KEEP THEIR MINDS OPEN IN ORDER TO EXERCISE A CONTINUING AND HELPFUL
SUPERVISION OVER THE MANNER IN WHICH THEIR LAWS SERVE THE PUBLIC."  333
U.S., AT 453.  "I VENTURE THE SUGGESTION THAT IT WOULD BE SHOCKING TO
MEMBERS OF CONGRESS, EVEN THOSE WHO ARE IN CLOSEST TOUCH WITH (THE KIND
OF LEGISLATION INVOLVED), TO BE TOLD THAT THEIR 'SILENCE' IS
RESPONSIBLE FOR APPLICATION TODAY OF A RULE WHICH IS OUT OF STEP WITH
THE TREND OF ALL CONGRESSIONAL LEGISLATION FOR MORE THAN THE PAST
QUARTER OF A CENTURY.  THERE ARE SOME FIELDS IN WHICH CONGRESSIONAL
COMMITTEES HAVE SUCH CLOSE LIAISON WITH AGENCIES IN REGARD TO SOME
MATTERS, THAT IT IS REASONABLE TO ASSUME AN AWARENESS OF CONGRESS WITH
RELEVANT JUDICIAL AND ADMINISTRATIVE DECISIONS.  BUT I CAN FIND NO
GROUND FOR AN ASSUMPTION THAT CONGRESS HAS KNOWN ABOUT THE . . . RULE
(HELD ADOPTED BY THE RE-ENACTMENT) AND DELIBERATELY LEFT IT ALONE
BECAUSE IT FAVORED SUCH AN ARCHAIC DOCTRINE."  ID., 465-466. 

/12/  SEE HEARING ON H.R. 2516 AND H.R. 4497, BEFORE SUBCOMMITTEE
NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 85TH CONG., 1ST SESS.,
SER.  5 (1956); H.R. REP. NO. 1706, 85TH CONG., 2D SESS. (1958); S.
REP. NO. 1830, 85TH CONG., 2D SESS. (1958). 

/13/  A "TRUE" CLASS ACTION COULD ALSO BE MAINTAINED TO ENFORCE A
RIGHT "SECONDARY IN THE SENSE THAT THE OWNER OF A PRIMARY RIGHT REFUSES
TO ENFORCE THAT RIGHT AND A MEMBER OF THE CLASS THEREBY BECOMES
ENTITLED TO ENFORCE IT."  STOCKHOLDERS' DERIVATIVE ACTIONS WERE THE
MOST SIGNIFICANT TYPE OF SUIT WITHIN THIS GROUP.  THEY ARE NOW
SEPARATELY DEALT WITH UNDER RULE 23.1 IN ADDITION.  UNDER THE FORMER
RULE 23(A)(2), IF THE RIGHT WAS "SEVERAL" IN CHARACTER, "AND THE OBJECT
OF THE ACTION IS THE ADJUDICATION OF CLAIMS WHICH DO OR MAY AFFECT
SPECIFIC PROPERTY INVOLVED IN THE ACTION," A "HYBRID" CLASS ACTION
COULD BE MAINTAINED WHICH WOULD DETERMINE THE INTERESTS OF EACH MEMBER
OF THE CLASS IN THE PARTICULAR PROPERTY. 

/14/  SEE, E.G., ALL AMER.  AIRWAYS, INC. V. ELDERD, 209 F.2D 247
(C.A.2D CIR. 1954).  THUS, UNDER THE PRIOR RULE, THE "SPURIOUS" CLASS
ACTION WAS IN EFFECT LITTLE MORE THAN A PERMISSIVE JOINDER DEVICE.  THE
PRE-AMENDMENT CATEGORIZATION AND ITS CONSEQUENCES ARE EXPLICATED IN
DETAIL IN 3A J. MOORE, FEDERAL PRACTICE PARAS. 23.08-23.14. 

/15/  E.G., Z. CHAFEE, SOME PROBLEMS OF EQUITY 243-295 (1950); C.
WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 269 (1963); KALVEN &
ROSENFIELD, THE CONTEMPORARY FUNCTION OF THE CLASS SUIT, 8
U.CHI.L.REV.  684 (1941).  SEE NOTE, PROPOSED RULE 23:  CLASS ACTIONS
RECLASSIFIED, 51 VA.L.REV.  629, N. 3 (1965). 

/16/  A NOTABLE EXAMPLE IS DECKERT V. INDEPENDENCE SHARES CORP., 27
F.SUPP.  763 (D.C.E.D. PA.), REV'D, 108 F.2D 51 (C.A.3D CIR. 1939),
REV'D, 311 U.S. 282 (1940), ON REMAND, 39 F.SUPP.  592 (D.C.E.D. PA.),
REV'D SUB NOM. PENNSYLVANIA CO. FOR INSURANCES ON LIVES V. DECKERT, 123
F.2D 979 (C.A.3D CIR. 1941).  THE VIEWS OF SUCCESSIVE COURTS ON THE
PROPER CLASSIFICATION OF THE DECKERT ACTION ARE DISCUSSED IN CHAFEE,
SUPRA, N. 15, AT 263-269. 

/17/  SEE FED. RULE CIV. PROC. 23, ADVISORY COMM. NOTE, 39 F.R.D. 98
99. 

/18/  SEE HANSBERRY V. LEE, 311 U.S. 32, 42-43 (1940). 

/19/  IF MEMBERS OF THE CLASS ELECTED TO EXERCISE THE RIGHT, WHICH
MIGHT BE EXTENDED THEM UNDER RULE 23(B)(3), TO EXCLUDE THEMSELVES FROM
THE LITIGATION, THEY WOULD NOT BE INCLUDED IN THE JUDGMENT IN THE CLASS
ACTION. 

/20/  FOR EXAMPLE, THE GENERAL RULE IS THAT IF SUIT IS BROUGHT ONLY
FOR PAST INSTALLMENTS DUE UNDER AN INSTALLMENT CONTRACT, THE
JURISDICTIONAL AMOUNT IS IN CONTROVERSY ONLY IF THE INSTALLMENTS DUE AT
THE TIME OF SUIT EXCEED THE JURISDICTIONAL AMOUNT.  E.G., NEW YORK LIFE
INS. CO. V. VIGLAS, 297 U.S. 672 (1936).  HOWEVER, IF, BECAUSE OF THE
STRUCTURE OF EQUITABLE REMEDIES OR THE AVAILABILITY OF A DECLARATORY
JUDGMENT, THE ACTION CAN PUT IN ISSUE THE VALIDITY OF THE CONTRACT AS A
WHOLE, THE "MATTER IN CONTROVERSY" IS NOT THE ACCRUED DAMAGES, BUT THE
POTENTIAL VALUE OF FULL PERFORMANCE.  LANDERS FRARY & CLARK V. VISCHER
PRODS.  CO., 201 F.2D 319 (C.A. 7TH CIR. 1953); FRANKLIN LIFE INS. CO.
V. JOHNSON, 157 F.2D 653 (C.A. 10TH CIR. 1946); DAVIS V. AMERICAN
FOUNDRY EQUIP.  CO., 94 F.2D 441 (C.A. 7TH CIR. 1938).  SEE NOTE,
DEVELOPMENTS IN THE LAW, DECLARATORY JUDGMENTS-- 1941-1949, 62
HARV.L.REV.  787, 801-802 (1949). 

/21/  SEE MISSISSIPPI PUB. CORP. V. MURPHREE, 326 U.S. 438, 445-446
(1946); KAPLAN, SUPRA, N. 1, AT 399-400.  CF. PROVIDENT TRADESMENS BANK
& TRUST CO. V. PATTERSON, 390 U.S. 102, 116-125 (1968). 

/22/  SEE WRIGHT, SUPRA, N. 15, AT 19-20; FRASER, ANCILLARY
JURISDICTION AND THE JOINDER OF CLAIMS IN THE FEDERAL COURTS, 33 F.R.D.
27, 28. 

/23/  IT HAS LONG BEEN ESTABLISHED THAT IF THE REQUISITE DIVERSITY
EXISTED BETWEEN THE ORIGINAL PARTIES FEDERAL JURISDICTION IS NOT OUSTED
MERELY BECAUSE LATER INTERVENORS OR MEMBERS OF THE CLASS REPRESENTED BY
THE ORIGINAL PARTIES ARE CITIZENS OF THE SAME STATE AS AN ADVERSE
PARTY.  STEWART V. DUNHAM, 115 U.S. 61 (1885); SUPREME TRIBE OF BEN-HUR
V. CAUBLE, 255 U.S. 356 (1921).  THE ORIGINAL RULE 23 PROVIDED NEW
OCCASIONS FOR THE ASSERTION OF THIS PRINCIPLE, WITH RESPECT TO BOTH
"TRUE" CLASS ACTIONS, MONTGOMERY WARD & CO. V. LANGER, 168 F.2D 182
(C.A. 8TH CIR. 1948), AND THOSE MERELY "SPURIOUS," AMEN V. BLACK, 234
F.2D 12 (C.A. 10TH CIR. 1956), DISMISSED AS MOOT, 355 U.S. 600 (1958). 

CHARLES ALAN SEIGEL ARGUED THE CAUSE FOR PETITIONER IN NO. 109. 
WITH HIM ON THE BRIEF WAS HYMAN G. STEIN.  GERRIT H. WORMHOUDT ARGUED
THE CAUSE FOR PETITIONER IN NO. 117.  WITH HIM ON THE BRIEF WERE KIRKE
W. DALE AND DALE M. STUCKY. 

JAMES L. ZEMELMAN ARGUED THE CAUSE FOR RESPONDENTS IN NO. 109.  WITH
HIM ON THE BRIEF WAS MORRIS A. SHENKER.  ROBERT MARTIN ARGUED THE CAUSE
FOR RESPONDENT IN NO. 117.  WITH HIM ON THE BRIEF WERE D. ARTHUR WALKER
AND RICHARD COOK. 
..END :








HADNOTT V. AMOS, 394 U.S. 358 


       HADNOTT ET AL. V. AMOS, SECRETARY OF STATE OF ALABAMA, ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF ALABAMA. 

        NO. 647.  ARGUED JANUARY 21, 1969.-- DECIDED MARCH 25,

           1969. 


APPELLANTS, THE NATIONAL DEMOCRATIC PARTY OF ALABAMA (NDPA) AND SOME
OF ITS OFFICERS AND CANDIDATES (MOSTLY NEGROES) IN THE NOVEMBER 1968
GENERAL ELECTION, BROUGHT SUIT AGAINST RESPONDENTS, STATE OFFICIALS,
SEEKING TO ENJOIN ENFORCEMENT OF CERTAIN ALABAMA ELECTION LAWS WHICH
APPELLANTS CLAIMED WERE UNCONSTITUTIONAL ON THEIR FACE AND HAD BEEN
DISCRIMINATORILY USED BY APPELLEES TO KEEP VARIOUS NDPA CANDIDATES FROM
BEING ON THE BALLOT IN THAT ELECTION.  THESE LAWS INCLUDED (1) ALA.
CODE, TIT. 17, SEC. 274 (1958), WHICH REQUIRED A CANDIDATE WITHIN FIVE
DAYS AFTER THE ANNOUNCEMENT OF HIS CANDIDACY TO FILE A STATEMENT
DESIGNATING HIS FINANCE COMMITTEE AND (2) THE "GARRETT ACT" OF 1967,
WHICH REQUIRED INDEPENDENT CANDIDATES, WHO PRIOR TO THAT LAW COULD FILE
DECLARATIONS OF INTENT AFTER NOMINATION BY MASS MEETING IN MAY, TO DO
SO BY MARCH 1, WHEN PRIMARY CANDIDATES HAD TO FILE.  A THREE-JUDGE
DISTRICT COURT ENTERED A TEMPORARY RESTRAINING ORDER ENJOINING THE
APPROPRIATE ALABAMA OFFICIALS FROM USING BALLOTS IN THE 1968 GENERAL
ELECTION WHICH DID NOT INCLUDE THE NAMES OF THE NDPA CANDIDATES. 
APPELLEES' ANSWER CHALLENGED THE QUALIFICATIONS OF THOSE CANDIDATES FOR
FAILURE TO COMPLY WITH THE ALABAMA LAWS.  AFTER A HEARING THE DISTRICT
COURT DISSOLVED THE TEMPORARY INJUNCTION AND UPHELD THE ALABAMA
STATUTES ON THEIR FACE AND AS APPLIED.  THIS COURT ON APPELLANTS'
APPLICATION AND AFTER ORAL ARGUMENT ORDERED THE DISTRICT COURT'S
TEMPORARY RESTRAINING ORDER CONTINUED PENDING ACTION ON THE
JURISDICTIONAL STATEMENT.  THE NDPA CANDIDATES WERE ELECTED TO VARIOUS
OFFICES IN ETOWAH, MARENGO, AND SUMTER COUNTIES AND APPARENTLY WOULD
HAVE BEEN ELECTED IN GREENE COUNTY HAD THEIR NAMES APPEARED ON THE
BALLOT.  THERE PROBATE JUDGE HERNDON, WHO WAS RESPONSIBLE FOR PREPARING
THE BALLOT, OMITTED THE NAMES OF THE NDPA CANDIDATES ON THE GROUND THAT
THEY HAD NOT FILED A SECOND SEC. 274 DESIGNATION AFTER THE DEMOCRATIC
PRIMARY OF MAY 7, 1968, IN WHICH THEY HAD BEEN CANDIDATES (ALTHOUGH THE
SUCCESSFUL WHITE CANDIDATES FILED NO SECOND DESIGNATION AFTER THAT
DATE), AND THAT "TO THE BEST OF (HIS) KNOWLEDGE AND BELIEF" THE NDPA
HAD HELD NO MASS MEETING TO CHOOSE CANDIDATES FOR THE GENERAL ELECTION
ON THAT DATE AS THEY CLAIMED TO HAVE DONE (IN ACCORDANCE WITH AN
ALABAMA LAW THAT LOCAL CANDIDATES NOT SELECTED IN PRIMARIES BE
NOMINATED BY MASS MEETING THE FIRST TUESDAY IN MAY OF THE ELECTION
YEAR).  HERNDON LATER ADMITTED KNOWING THAT THE NDPA CANDIDATES HAD
MADE THE SEC. 274 DESIGNATION IN FEBRUARY 1968 BEFORE THEY ENTERED THE
PRIMARY AND THAT THE NDPA MASS MEETING MIGHT HAVE BEEN HELD WITHOUT HIS
HAVING KNOWN ABOUT IT.  AFTER THE ELECTION APPELLANTS FILED IN THIS
COURT A MOTION TO SHOW CAUSE WHY JUDGE HERNDON SHOULD NOT BE HELD IN
CONTEMPT AND WHY THE GREENE COUNTY ELECTION SHOULD NOT BE SET ASIDE AND
A NEW ELECTION HELD.  THE DISTRICT COURT (IN RESPONSE TO A MOTION BY
THE UNITED STATES) ISSUED A RULE TO SHOW CAUSE WHY THE GREENE COUNTY
ELECTION SHOULD NOT BE ENJOINED, AND THE COURT STAYED GIVING EFFECT TO
THAT ELECTION.  HELD: 

1.  THE DISQUALIFICATION IN THE 1968 ELECTION OF THE NDPA CANDIDATES
ON THE GROUND THAT THEY FAILED TO MEET REQUIREMENTS UNDER THE ALABAMA
CORRUPT PRACTICES ACT WHICH THEIR OPPONENTS DID NOT HAVE TO MEET
CONSTITUTED, ON THE RECORD HERE, AN UNEQUAL APPLICATION OF THE LAW IN
VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
PP. 361-364. 

2.  DISQUALIFICATION OF THE NDPA CANDIDATES FOR FAILURE TO COMPLY
WITH THE GARRETT ACT WAS UNLAWFUL SINCE THAT ACT, WHICH IMPOSED
INCREASED BARRIERS ON INDEPENDENT CANDIDATES, WAS INOPERATIVE BECAUSE
THE ALABAMA OFFICIALS HAD FAILED TO MEET THE APPROVAL REQUIREMENTS OF
SEC. 5 OF THE VOTING RIGHTS ACT OF 1965.  WHITLEY V. WILLIAMS, 393 U.S.
544.  PP. 365-366. 

3.  THE CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS (1)
TO ORDER THE PREVAILING NDPA CANDIDATES IN ETOWAH, MARENGO, AND SUMTER
COUNTIES TO BE TREATED AS ELECTED AND (2) TO REQUIRE THE OFFICIALS TO
HOLD A NEW ELECTION IN GREENE COUNTY FOR THE OFFICES CONTESTED BY NDPA
CANDIDATES, WHOSE NAMES SHALL APPEAR ON THE BALLOTS.  P. 367. 

295 F.SUPP.  1003, REVERSED AND REMANDED.  (NOTE: FOR COURT'S ACTION
ON MOTION TO SHOW CAUSE WHY JUDGE HERNDON SHOULD NOT BE HELD IN
CONTEMPT, SEE POST, P. 399.) 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT IS A CLASS ACTION BROUGHT BY THE NATIONAL DEMOCRATIC PARTY
OF ALABAMA (NDPA) AND SOME OF ITS OFFICERS AND CANDIDATES IN THE 1968
GENERAL ELECTION AGAINST ALABAMA STATE OFFICIALS WHO HAD REFUSED TO
INCLUDE VARIOUS NDPA CANDIDATES ON THE BALLOT FOR VARIOUS COUNTY AND
STATE-WIDE OFFICES.  AS THE COMPLAINT SOUGHT AN INJUNCTION AGAINST
ENFORCEMENT OF ALABAMA STATUTES ON FEDERAL CONSTITUTIONAL GROUNDS, A
THREE-JUDGE FEDERAL COURT WAS IMPANELED.  28 U.S.C. 2281. 

THE DISTRICT COURT ENTERED A TEMPORARY RESTRAINING ORDER. 
THEREAFTER APPELLEES FILED THEIR ANSWER CHALLENGING INTER ALIA, THE
QUALIFICATIONS OF NDPA CANDIDATES BECAUSE OF THEIR FAILURE TO SATISFY
CERTAIN SPECIFIED REQUIREMENTS OF ALABAMA LAW.  ON OCTOBER 11, 1968,
AFTER A HEARING ON THE MERITS, THE THREE-JUDGE COURT, BY A DIVIDED
VOTE, DISSOLVED THE TEMPORARY INJUNCTION AND UPHELD ON THEIR FACE AND
AS APPLIED ALL THE CHALLENGED ALABAMA STATUTES. 

APPELLANTS APPEALED TO THIS COURT (28 U.S.C. 1253) AND ON OCTOBER 14
WE RESTORED THE DISTRICT COURT'S TEMPORARY RESTRAINING ORDER SAYING:
"THE APPLICATION FOR RESTORATION OF TEMPORARY RELIEF IS GRANTED PENDING
ORAL ARGUMENT ON THE APPLICATION, WHICH IS SET FOR FRIDAY, OCTOBER 18,
1968, AT 9:00 A.M.  THE CASE IS PLACED ON THE SUMMARY CALENDAR." 

AND ON OCTOBER 19, 1968, WE ENTERED AN ADDITIONAL ORDER PROVIDING IN
PART: 

     "THE ORDER ENTERED OCTOBER 14, 1968, RESTORING TEMPORARY
RELIEF

  IS CONTINUED PENDING ACTION UPON THE JURISDICTIONAL STATEMENT

  WHICH HAS BEEN FILED." 

NDPA CANDIDATES, MOSTLY NEGROES, WERE ELECTED TO VARIOUS LOCAL
OFFICES IN ETOWAH, MARENGO, AND SUMTER COUNTIES.  BUT IN GREENE COUNTY
THE NDPA CANDIDATES FOR LOCAL OFFICE WERE LEFT OFF THE BALLOT EXCEPT
FOR ABSENTEE VOTERS.  IN GREENE COUNTY THE ONLY CANDIDATES APPEARING ON
THE BALLOT WERE THE REGULAR DEMOCRATIC PARTY NOMINEES FOR LOCAL OFFICES
AND THEY RECEIVED BETWEEN 1,699 AND 1,709 VOTES EACH.  IT APPEARS THAT
NDPA CANDIDATES IN GREENE COUNTY WOULD HAVE WON HAD THEY BEEN ON THE
BALLOT /1/  FOR 1,938 BALLOTS WERE MARKED FOR THE NDPA "STRAIGHT
TICKET." 

ON NOVEMBER 15 APPELLANTS FILED IN THIS COURT A MOTION TO SHOW CAUSE
WHY JAMES D. HERNDON, PROBATE JUDGE, GREENE COUNTY, /2/  SHOULD NOT BE
HELD IN CONTEMPT AND WHY THE ELECTION IN GREENE COUNTY SHOULD NOT BE
SET ASIDE AND A NEW ONE HELD.  LATER THE UNITED STATES MOVED IN THE
DISTRICT COURT FOR RELIEF AND THAT COURT ISSUED A RULE TO SHOW CAUSE
WHY THE RESULTS OF THE NOVEMBER ELECTION IN GREENE COUNTY SHOULD NOT BE
ENJOINED.  THE DISTRICT COURT STAYED GIVING EFFECT TO THE GREENE COUNTY
ELECTION. 

WE HAVE HEARD ARGUMENT ON THE JURISDICTIONAL STATEMENT AND ON THE
MOTION TO HOLD JUDGE HERNDON IN CONTEMPT.  ON THE MERITS OF THE APPEAL,
WE REVERSE. 

FIRST. THE ALABAMA CORRUPT PRACTICES ACT REQUIRES EACH CANDIDATE
WITHIN FIVE DAYS "AFTER THE ANNOUNCEMENT OF HIS CANDIDACY FOR ANY
OFFICE" TO FILE A STATEMENT SHOWING "THE NAME OF NOT LESS THAN ONE NOR
MORE THAN FIVE PERSONS" CHOSEN TO RECEIVE, EXPEND, AUDIT, AND DISBURSE
FUNDS FOR HIS ELECTION.  ALA. CODE, TIT. 17, SEC. 274 (1958). 

THE DISQUALIFICATION OF THE NDPA CANDIDATES FOR THEIR ALLEGED
FAILURE TO SATISFY THIS PROVISION OF THE ALABAMA ACT IMPLICATES PROBATE
JUDGE HERNDON, WHO WAS RESPONSIBLE FOR THE PREPARATION OF THE GREENE
COUNTY BALLOT WHICH OMITTED THEIR NAMES. 

IN THIS CASE THE BLACK CANDIDATES FOR GREENE COUNTY OFFICES
DESIGNATED FINANCE COMMITTEES IN FEBRUARY 1968 PRIOR TO THEIR ENTRY IN
THE DEMOCRATIC PRIMARY.  APPELLEES CONTEND THAT IT WAS SUFFICIENT TO
JUSTIFY JUDGE HERNDON'S OMISSION OF THE NAMES THAT THE NDPA CANDIDATES
DID NOT FILE A SECOND DESIGNATION OF FINANCIAL COMMITTEE AFTER MAY 7,
THE DATE OF THE PRIMARY, AND THE DATE ON WHICH THOSE CANDIDATES WERE
NOMINATED BY THE NDPA.  APPELLANTS CONTEND THAT DISQUALIFICATION FOR
THAT REASON CONSTITUTED DISCRIMINATORY ENFORCEMENT OF THE CORRUPT
PRACTICES ACT IN VIOLATION OF THE EQUAL PROTECTION CLAUSE.  SINCE THE
NAMES OF THE WHITE CANDIDATES WHO WON THE MAY 7 PRIMARY WERE PLACED ON
THE BALLOT, ALTHOUGH THEY ALSO DID NOT FILE A SECOND DESIGNATION AFTER
THAT DATE, APPELLEES CLEARLY HAVE THE BURDEN OF JUSTIFYING THE DENIAL
OF BALLOT PLACES TO THE BLACK NDPA CANDIDATES.  APPELLEES HAVE FAILED
TO SATISFY THAT BURDEN.  /3/ 

ALABAMA LAW REQUIRES ALL CANDIDATES FOR LOCAL OFFICE, NOT SELECTED IN
PRIMARIES, TO BE NOMINATED BY MASS MEETING ON THE FIRST TUESDAY IN MAY
OF THE ELECTION YEAR.  ALA. CODE, TIT. 17, SECS. 413, 414 (1958).  THE
CERTIFICATE OF NOMINATION SENT TO JUDGE HERNDON, PROBATE JUDGE FOR
GREENE COUNTY, ON SEPTEMBER 4, STATED THAT NDPA NOMINEES HAD BEEN
SELECTED PURSUANT TO A MASS MEETING. 

ON SEPTEMBER 18 THE DISTRICT COURT TEMPORARILY RESTRAINED THE
OMISSION FROM THE BALLOT OF NDPA CANDIDATES FOR STATE AND LOCAL
OFFICE.  THAT RESTRAING WAS DISSOLVED ON OCTOBER 11.  MEANWHILE,
COUNSEL FOR THE WHITE GREENE COUNTY CANDIDATES, WHO WAS THE COUNTY
SOLICITOR, PROMPTED JUDGE HERNDON TO FILE AN AFFIDAVIT IN WHICH HE
STATED THAT TO THE "BEST OF (HIS) KNOWLEDGE AND BELIEF" THE NDPA HELD
NO LOCAL MASS MEETING ON MAY 7 AT WHICH NOMINATIONS WERE MADE, AND
FURTHER THAT NONE OF THE SIX NDPA CANDIDATES "FILED OR OFFERED TO FILE
IN (HIS) OFFICE" THE DESIGNATION OF FINANCIAL COMMITTEE REQUIRED BY THE
CORRUPT PRACTICES ACT.  YET WHEN HIS DEPOSITION WAS TAKEN ON DECEMBER
27, THE JUDGE CONCEDED THAT THE MASS MEETING MIGHT HAVE BEEN HELD
WITHOUT HIS HEARING ABOUT IT AND ADMITTED KNOWLEDGE THAT THE BLACK
CANDIDATES HAD FILED DESIGNATIONS OF FINANCIAL COMMITTEE IN FEBRUARY. 
HE DID NOT SAY WHY IN THESE CIRCUMSTANCES THE FEBRUARY FILING DID NOT
SUFFICE FOR THE GENERAL ELECTION; THE DESIGNATIONS REFER TO CANDIDACIES
FOR THE GENERAL ELECTION AS WELL AS THE PRIMARY ELECTION.  /4/  NOR DID
HE OFFER ANY EXPLANATION WHY IF THE FEBRUARY FILINGS BY THE WHITE
CANDIDATES SUFFICED FOR THE GENERAL ELECTION, THE FILINGS OF THE BLACK
CANDIDATES SHOULD BE TREATED DIFFERENTLY.  THE RECORD IS THEREFORE
UTTERLY DEVOID OF ANY EXPLANATION ADEQUATE TO SATISFY APPELLEES'
BURDEN.  IT IS TRUE THAT AT ORAL ARGUMENT IN THIS COURT COUNSEL FOR
APPELLEES SUGGESTED THAT THE ALABAMA COURTS MIGHT CONSTRUE THE
STATUTORY WORDS-- "WITHIN FIVE DAYS AFTER THE ANNOUNCEMENT OF HIS
CANDIDACY . . . EACH CANDIDATE FOR A COUNTY OFFICE . . . SHALL FILE
(THE DESIGNATION STATEMENT) WITH THE JUDGE OF PROBATE"-- TO REQUIRE A
SECOND FILING BY LOSERS IN A PRIMARY WHO STAND AT THE GENERAL ELECTION
AS CANDIDATES OF ANOTHER PARTY.  BUT IT WAS NOT URGED, NOR COULD IT BE
ON THIS RECORD, THAT APPELLEES' DISTINCTION BETWEEN THE BLACK AND WHITE
CANDIDATES WAS RESTED ON THAT CONSTRUCTION. 

WE DEAL HERE WITH FIFTEENTH AMENDMENT RIGHTS WHICH GUARANTEE THE
RIGHT OF PEOPLE REGARDLESS OF THEIR RACE, COLOR, OR PREVIOUS CONDITION
OF SERVITUDE TO CAST THEIR VOTES EFFECTIVELY AND WITH FIRST AMENDMENT
RIGHTS WHICH INCLUDE THE RIGHT TO BAND TOGETHER FOR THE ADVANCEMENT OF
POLITICAL BELIEFS.  WILLIAMS V. RHODES, 393 U.S. 23.  WHILE THE
REGULATION OF CORRUPT PRACTICES IN STATE AND FEDERAL ELECTIONS IS AN
IMPORTANT GOVERNMENTAL FUNCTION, WE REFUSE TO ACCEPT A READING OF AN
ACT WHICH GIVES SUCH A LOOSE MEANING TO WORDS AND SUCH DISCRETIONARY
AUTHORITY TO ELECTION OFFICIALS AS TO CAUSE FIFTEENTH AND FIRST
AMENDMENT RIGHTS TO BE SUBJECT TO DISPARATE TREATMENT.  THAT RISK IS
COMPOUNDED HERE WHERE THE PENALTY IS THE IRREVOCABLE STRIKING OF
CANDIDATES FROM THE BALLOT WITHOUT NOTICE OR AN OPPORTUNITY FOR CONTEST
AND CORRECTION. 

WHEN THE ALABAMA ACT IS CONSTRUED AS APPELLANTS' OPPONENTS WERE
ALLOWED TO CONSTRUE IT WITHOUT SUFFERING DISQUALIFICATION, WE CONCLUDE
THAT APPELLANTS MET THE SAME REQUIREMENTS.  UNEQUAL APPLICATION OF THE
SAME LAW TO DIFFERENT RACIAL GROUPS HAS AN ESPECIALLY INVIDIOUS
CONNOTATION. 

SECOND.  IN 1967 ALABAMA PASSED THE GARRETT ACT (L. 1967, ACT 243)
BARRING FROM THE BALLOT IN A GENERAL ELECTION A CANDIDATE FOR A STATE,
DISTRICT, OR FEDERAL OFFICE "WHO DOES NOT FILE A DECLARATION OF
INTENTION TO BECOME A CANDIDATE FOR SUCH OFFICE WITH THE SECRETARY OF
STATE ON OR BEFORE THE FIRST DAY OF MARCH OF THE YEAR IN WHICH SUCH
GENERAL ELECTION IS HELD."  THE GARRETT ACT ALSO REQUIRES A DECLARATION
OF THE POLITICAL PARTY WHOSE NOMINATION THE CANDIDATE SEEKS; OR IF HE
IS NOT A PARTY CANDIDATE THAT HE WILL RUN AS AN INDEPENDENT.  A LIKE
PROVISION BARS PROBATE JUDGES FROM PRINTING ON BALLOTS THE NAMES OF
CANDIDATES FOR COUNTY OFFICES UNLESS THEY HAVE FILED A DECLARATION OF
INTENTION ON OR BEFORE THE PRIOR MARCH 1.  ACCORDINGLY, APPELLEES
JUSTIFY THEIR DISQUALIFICATION OF NDPA CANDIDATES IN ETOWAH, MARENGO,
AND SUMTER COUNTIES, AND JUDGE HERNDON JUSTIFIES HIS OMISSION OF THOSE
CANDIDATES FROM THE GREENE COUNTY BALLOT, ON THE GROUND THAT THEY DID
NOT COMPLY WITH THE GARRETT ACT. 

PRIOR TO THE GARRETT ACT, EVERY CANDIDATE DESIRING TO RUN IN A
PRIMARY WAS REQUIRED TO FILE A DECLARATION OF CANDIDACY BY MARCH 1. 
ALA CODE, TIT. 17, SEC. 348 (1958).  INDEPENDENTS WERE EXEMPT FROM THIS
REQUIREMENT AND THEY WERE ABLE TO GET ON THE BALLOT AFTER NOMINATION BY
A MASS MEETING HELD ON THE FIRST TUESDAY IN MAY.  ID. SECS. 413, 414. 
AS A RESULT OF THE GARRETT ACT, AN INDEPENDENT CANDIDATE HAD TO DECIDE
WHETHER TO RUN AT THE SAME TIME AS CANDIDATES IN THE PRIMARY MADE THEIR
DETERMINATION. 

THE QUESTION IS WHETHER THE GARRETT ACT IS AFFECTED BY SEC. 5 OF THE
VOTING RIGHTS ACT OF 1965, 79 STAT. 439, 42 U.S.C. 1973C (1964 ED.,
SUPP. III), WHICH PROVIDES THAT WHENEVER STATES LIKE ALABAMA SEEK TO
ADMINISTER "ANY VOTING QUALIFICATION OR PREREQUISITE TO VOTING, OR
STANDARD, PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING DIFFERENT FROM
THAT IN FORCE OR EFFECT ON NOVEMBER 1, 1964," THE STATE MAY INSTITUTE
AN ACTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA FOR A DECLARATORY JUDGMENT THAT "SUCH QUALIFICATION,
PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE DOES NOT HAVE THE
PURPOSE AND WILL NOT HAVE THE EFFECT OF DENYING OR ABRIDGING THE RIGHT
TO VOTE ON ACCOUNT OF RACE OR COLOR."  IT IS FURTHER PROVIDED IN SEC. 5
THAT UNLESS AND UNTIL THE DISTRICT OF COLUMBIA COURT ENTERS SUCH
JUDGMENT "NO PERSON SHALL BE DENIED THE RIGHT TO VOTE FOR FAILURE TO
COMPLY WITH SUCH QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR
PROCEDURE."  /5/ 

THE GARRETT ACT IS IN RESPECTS MATERIAL HERE ON ALL FOURS WITH
WHITLEY V. WILLIAMS, 393 U.S. 544, IN WHICH WE HELD THAT A LIKE
PROVISION ADDED TO THE MISSISSIPPI CODE COULD NOT BE APPLIED UNTIL IT
HAD BEEN APPROVED IN ONE OF THE TWO WAYS PROVIDED IN SEC. 5 OF THE
VOTING RIGHTS ACT OF 1965. 

IN THE WHITLEY CASE WE DEALT WITH A NEW MISSISSIPPI LAW WHICH, INTER
ALIA, CHANGED THE TIME FOR FILING A PETITION AS AN INDEPENDENT
CANDIDATE FROM 40 DAYS BEFORE THE GENERAL ELECTION TO 60 DAYS BEFORE
THE PRIMARY ELECTION. 

WE HELD THAT THIS NEW PROVISION WAS SUBJECT TO SEC. 5 OF THE VOTING
RIGHTS ACT OF 1965 AS IT WAS AIMED "AT INCREASING THE DIFFICULTY FOR AN
INDEPENDENT CANDIDATE TO GAIN A POSITION ON THE GENERAL ELECTION
BALLOT."  ID., AT 570.  AND WE ADDED THAT THAT CHANGE "MIGHT ALSO
UNDERMINE THE EFFECTIVENESS OF VOTERS WHO WISH TO ELECT INDEPENDENT
CANDIDATES."  IBID.  THE INCREASED BARRIERS PLACED ON INDEPENDENT
CANDIDATES BY ALABAMA'S GARRETT ACT LIKEWISE BRING IT WITHIN THE
PURVIEW OF SEC. 5 OF THE FEDERAL ACT.  THE ALABAMA OFFICIALS,
THEREFORE, ACTED UNLAWFULLY IN DISQUALIFYING INDEPENDENT CANDIDATES IN
THE 1968 ELECTION FOR FAILURE TO COMPLY WITH THE GARRETT ACT. 

ON THE MERITS, WE REVERSE THE DISTRICT COURT AND REMAND THE CAUSE
WITH DIRECTIONS (1) TO ISSUE AN APPROPRIATE ORDER REQUIRING THE
PREVAILING NDPA CANDIDATES IN ETOWAH, MARENGO, AND SUMTER COUNTIES TO
BE TREATED AS DULY ELECTED TO THE OFFICES FOR WHICH THEY RAN; AND (2)
TO REQUIRE THE STATE AND LOCAL OFFICIALS PROMPTLY TO CONDUCT A NEW
ELECTION IN GREENE COUNTY FOR THE VARIOUS COUNTY OFFICES CONTESTED BY
NDPA CANDIDATES, /6/  AT WHICH ELECTION THE NDPA CANDIDATES FOR THOSE
RESPECTIVE POSITIONS SHALL APPEAR ON THE BALLOT. 

THE MOTION TO HOLD JUDGE HERNDON IN CONTEMPT WILL BE DISPOSED OF IN
A SEPARATE OPINION. 

              IT IS SO ORDERED. 

/1/  NDPA RAN MOSTLY NEGRO CANDIDATES-- 60 OUT OF 67.  IN GREENE
COUNTY, NEGROES OF VOTING AGE ARE IN A NUMERICAL MAJORITY-- 5,001
NEGRO, 1,649 WHITE, ACCORDING TO THE 1960 CENSUS. 

/2/  UNDER ALABAMA LAW THE PROBATE JUDGES HAVE RESPONSIBILITY FOR
PREPARING BALLOTS TO BE USED IN EACH OF THE STATE'S COUNTIES. 

/3/  AFTER FIRST NOTIFYING THE NDPA OF ITS FAILURE TO FILE A
CERTIFIED LIST OF ITS CANDIDATES WITH HER OFFICE, THE SECRETARY OF
STATE THEN NOTIFIED THE PARTY OF HER WILLINGNESS TO ACCEPT SUCH
NOMINATIONS FILED BY SEPTEMBER 5.  ACCORDING TO THE SECRETARY OF STATE,
THE NDPA COMPLIED WITH HER CONDITION BY FILING ON TIME. 

/4/  THE FORM ITSELF AND THE INSTRUCTIONS ON THE BACK OF THE FORM
MAKE CLEAR THAT FILING OF THE FORM FULFILLS THE REQUIREMENTS OF THE
ALABAMA CORRUPT PRACTICES ACT FOR "NOMINATION OR ELECTION."  IN THE
TYPICAL FORM FILED, AS PRINTED IN THE DISSENTING OPINION, THE COMMITTEE
DESIGNATED IS NAMED "FOR THE PURPOSE OF AIDING OR PROMOTING MY
NOMINATION OR ELECTION."  MOREOVER, PRINTED INSTRUCTIONS ON THE
BACKSIDE TO BOTH "CANDIDATE FOR STATE OFFICES" AND "CANDIDATES FOR
COUNTY OFFICES STATE:     "A COPY OF THIS ANNOUNCEMENT OF CANDIDACY
FILED WITH THE SECRETARY OF STATE AND PROBATE JUDGES) WILL MEET THE
REQUIREMENTS OF SECTION 274 OF TITLE 17, ALABAMA CODE OF 1940, AS
AMENDED (CORRUPT PRACTICES ACT), WHERE THE CANDIDATE HIMSELF (RATHER
THAN A COMMITTEE) INTENDS TO RECEIVE, DISBURSE AND REPORT ON ALL MONIES
USED IN PROMOTING HIS NOMINATION OR ELECTION." 

/5/  SECTION 5 CONTAINS AN ALTERNATIVE PROCEDURE OF SUBMITTING THE
CHANGED PROVISIONS TO THE ATTORNEY GENERAL, IN WHICH CASE THEY BECOME
ENFORCEABLE UPON FAILURE OF THE ATTORNEY GENERAL TO OBJECT. 

/6/  THESE ARE THE OFFICES OF COUNTY COMMISSIONER FOR DISTRICTS 1,
2, 3, AND 4, AND PLACES 1 AND 2 ON THE COUNTY BOARD OF EDUCATION. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING
IN PART. 

AS I UNDERSTAND THE ARGUMENTS IN THIS CASE, APPELLEES SUGGEST THAT
WHATEVER REASONS STATE OFFICIALS MAY HAVE GIVEN FOR EXCLUDING
APPELLANTS FROM THE BALLOT, THE EXCLUSION AND THE JUDGMENT BELOW ARE
SUSTAINABLE ON INDEPENDENT GROUNDS, AT LEAST AS TO THE GREENE COUNTY
NDPA CANDIDATES.  THE CORRUPT PRACTICES ACT, IT IS SAID, REQUIRED THE
FILING OF COMMITTEE DESIGNATIONS NOT ONLY WHEN APPELLANTS BECAME
DEMOCRATIC PARTY CANDIDATES /1/  AND ENTERED THE PRIMARY BUT WHEN,
AFTER LOSING THE PRIMARY, THEY ANNOUNCED THEIR CANDIDACY UNDER THE
BANNER OF ANOTHER PARTY.  IF THE ALABAMA COURTS SO CONSTRUED THE
STATUTE, I WOULD NOT THINK THE COURT WOULD REVERSE THIS CASE UNLESS IT
HELD THE CORRUPT PRACTICES ACT UNCONSTITUTIONAL.  OF COURSE, THE
ALABAMA COURTS HAVE NOT PASSED ON THIS QUESTION TO DATE.  BUT THE ISSUE
IS NOT FRIVOLOUS AND I WOULD NOT CONSTRUE THE STATUTE HERE IN THE FIRST
INSTANCE, WHICH THE COURT IN EFFECT DOES, BUT WOULD REMAND THE MATTER
TO THE THREE-JUDGE COURT FOR ITS INTERPRETATION OF ALABAMA LAW.  ON THE
OTHER ISSUES IN THE CASE, I AGREE WITH THE COURT. 

/1/  AT THAT TIME THEY FILED DESIGNATIONS WHICH WERE, AS THE
SOLICITOR GENERAL CONCEDES, "IN TERMS DIRECTED TO THE DEMOCRATIC
PRIMARY, RATHER THAN THE GENERAL ELECTION."  A TYPICAL DESIGNATION READ
IN THE RELEVANT PART AS FOLLOWS: 

"I HEREBY DECLARE MYSELF TO BE A CANDIDATE FOR THE DEMOCRATIC
NOMINATION (OR ELECTION) IN THE PRIMARY ELECTIONS TO BE HELD ON
TUESDAY, THE 7TH DAY OF MAY, 1968, AND ON TUESDAY, THE 4TH DAY OF JUNE,
1968, FOR THE OFFICE OF COUNTY COMMISSIONER FOR 

     GREENE (DISTRICT, CIRCUIT OR COUNTY, IF 

     APPLICABLE)

.          .          .          . 

"IF I AM A CANDIDATE FOR THE DEMOCRATIC NOMINATION FOR JUDGE OF A
COURT OF RECORD, I DO FURTHER CERTIFY THAT AT THE TIME OF FILING THIS
DECLARATION OF CANDIDACY I AM NOT UNDER DISBARMENT OR SUSPENSION. 

"I HEREBY CERTIFY AND DECLARE THAT I APPOINT MYSELF (AND HEREBY
ACCEPT THE APPOINTMENT) AS THE SOLE AND ONLY PERSON OR COMMITTEE TO
RECEIVE, EXPEND, AUDIT AND DISBURSE ALL MONIES CONTRIBUTED, DONATED,
SUBSCRIBED, OR IN ANY WAY FURNISHED OR RAISED FOR THE PURPOSE OF AIDING
OR PROMOTING MY NOMINATION OR ELECTION AS SUCH CANDIDATE FOR SAID
OFFICE IN ACCORDANCE WITH SECTIONS 274 AND 275 OF TITLE 17 OF THE CODE
OF ALABAMA OF 1950, AS AMENDED (CORRUPT PRACTICES ACT). 

              "VASSIE KNOTT 

CHARLES MORGAN, JR., ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEF WERE REBER F. BOULT, JR., ORZELL BILLINGSLEY, JR., ROBERT P.
SCHWENN, MELVIN L. WULF, AND ELEANOR HOLMES NORTON. 

L. DREW REDDEN, SPECIAL ASSISTANT ATTORNEY GENERAL OF ALABAMA,
ARGUED THE CAUSE FOR APPELLEES AMOS ET AL. WITH HIM ON THE BRIEF WERE
MACDONALD GALLION, ATTORNEY GENERAL, PRO SE, JOHN G. BOOKOUT, DEPUTY
ATTORNEY GENERAL, AND GORDON MADISON AND LESLIE HALL, ASSISTANT
ATTORNEYS GENERAL. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL POLLAK, NATHAN LEWIN, AND FRANK M.
DUNBAUGH. 
..END :






















RAILROAD TRAINMEN V. TERMINAL CO., 394 U.S. 369 


       BROTHERHOOD OF RAILROAD TRAINMEN ET AL. V. JACKSONVILLE

           TERMINAL CO.

        CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA,
FIRST

           DISTRICT. 

        NO. 69.  ARGUED DECEMBER 11, 1968.-- DECIDED MARCH 25,

           1969. 


FLORIDA EAST COAST RAILWAY CO. (FEC), HAVING EXHAUSTED ALL THE
RAILWAY LABOR ACT'S PROCEDURES FOR RESOLVING A "MAJOR DISPUTE,"
UNILATERALLY CHANGED ITS OPERATING EMPLOYEES' RATES OF PAY, RULES, AND
WORKING CONDITIONS, AND PETITIONER UNIONS CALLED A STRIKE AND PICKETED
PEACEFULLY AT LOCATIONS WHERE FEC OPERATED, INCLUDING THE PREMISES OF
RESPONDENT TERMINAL COMPANY.  A FEDERAL DISTRICT COURT ENJOINED
PICKETING OF RESPONDENT'S PREMISES EXCEPT AT A "RESERVED GATE" SET
ASIDE FOR FEC EMPLOYEES.  THE COURT OF APPEALS REVERSED, HOLDING THAT
THE NORRIS-LAGUARDIA ACT BARRED ISSUANCE OF A FEDERAL INJUNCTION, AND
THAT DECISION WAS AFFIRMED BY AN EQUAL DIVISION OF THIS COURT (385 U.S.
20).  WHILE THAT LITIGATION WAS PENDING, RESPONDENT OBTAINED FROM THE
FLORIDA COURTS AN INJUNCTION ALMOST IDENTICAL TO THE EARLIER FEDERAL
ORDER.  THE STATE TRIAL COURT FOUND THAT RESUMPTION OF GENERAL
PICKETING WOULD RESULT IN VIRTUAL CESSATION OF RESPONDENT'S ACTIVITIES
AND CAUSE SERIOUS ECONOMIC DAMAGE TO THE STATE, AND THAT IT CONSTITUTED
AN ILLEGAL SECONDARY BOYCOTT AND WAS UNLAWFUL UNDER OTHER STATE LAWS. 
HELD: 

1.  THE JURISDICTION OF THE STATE COURTS WAS NOT PRE-EMPTED BY THE
PRIMARY JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD, EVEN THOUGH
A SMALL PERCENTAGE OF PETITIONER UNIONS' MEMBERSHIP MAY BE SUBJECT TO
THE NATIONAL LABOR RELATIONS ACT (NLRA), AS THIS IS SIMPLY A RAILWAY
LABOR DISPUTE TO WHICH THE NLRA HAS NO DIRECT APPLICATION.  PP. 375
377. 

2.  THE RAILWAY LABOR ACT (RLA) SUPPLIES A DETAILED FRAMEWORK TO
FACILITATE THE VOLUNTARY SETTLEMENT OF MAJOR DISPUTES, AND WHILE IT
DOES NOT SPECIFY WHAT OCCURS WHEN THESE PROCEDURES HAVE BEEN EXHAUSTED
WITHOUT SUCCESS, IT DOES IMPLY THE ULTIMATE RIGHT OF THE PARTIES TO
RESORT TO PEACEFUL SELF-HELP.  PP. 377-380. 

3.  ALTHOUGH THE FLORIDA COURTS MAY HAVE JURISDICTION OVER THIS
LITIGATION, THE APPLICATION OF STATE LAW IS LIMITED BY PARAMOUNT
FEDERAL POLICIES OF NATIONWIDE IMPORT, AS THE RLA'S SCHEME FOR THE
RESOLUTION OF MAJOR DISPUTES WOULD BECOME MEANINGLESS IF THE STATES
COULD PROHIBIT THE PARTIES FROM ENGAGING IN ANY SELF-HELP.  PP. 380
382. 

4.  THE NLRA CANNOT BE IMPORTED COMPLETELY INTO THE RAILWAY LABOR
AREA, BUT IT CAN BE REFERRED TO FOR ASSISTANCE IN CONSTRUING THE RLA,
AND HERE THE NLRA'S POLICIES CAN AID IN DETERMINING WHETHER
PETITIONERS' CONDUCT IS WITHIN THE PENUMBRA OF THAT PROTECTED UNDER THE
ACT OR WHETHER IT IS OUTSIDE THE PALE OF PERMISSIBLE ACTIVITY.  PP. 382
384. 

5.  PEACEFUL PRIMARY PICKETING INCIDENT TO A LAWFUL STRIKE IS
PROTECTED CONDUCT UNDER THE NLRA, AND SINCE THERE ARE NO GROUNDS FOR
DISTINGUISHING PICKETING UNDER THE RLA, PEACEFUL PRIMARY STRIKES AND
PEACEFUL PICKETING INCIDENT THERETO ARE WITHIN THE CORE OF PROTECTED
SELF-HELP UNDER THE RLA.  PP. 384-386. 

6.  WHILE IT IS DIFFICULT TO FORMULATE GENERALIZATIONS GOVERNING
COMMON SITUS PICKETING IT IS CLEAR THAT SECONDARY EMPLOYERS ARE NOT
NECESSARILY PROTECTED AGAINST PICKETING AIMED DIRECTLY AT THEIR
EMPLOYEES, AND THUS TO CONDEMN ALL OF PETITIONERS' PICKETING WHICH
CARRIES ANY "SECONDARY" IMPLICATIONS WOULD BE TO PAINT WITH TOO BROAD A
BRUSH.  PP. 386-390. 

7.  CONGRESS HAS NOT PROVIDED USABLE STANDARDS OR ACCESS TO
ADMINISTRATIVE EXPERTISE IN THIS AREA OF RAILWAY LABOR CONDUCT AND THE
LEAST UNSATISFACTORY JUDICIAL SOLUTION IS TO ALLOW THOSE WHO HAVE
UNSUCCESSFULLY EXHAUSTED THE RLA'S PROCEDURES FOR RESOLVING A MAJOR
DISPUTE TO EMPLOY THEIR FULL RANGE OF PEACEFUL ECONOMIC POWER, PROVIDED
IT DOES NOT CONFLICT WITH ANY OTHER OBLIGATION IMPOSED BY FEDERAL LAW. 
THEREFORE, UNTIL CONGRESS ACTS, PRIMARY OR SECONDARY RAILWAY LABOR
PICKETING MUST BE DEEMED CONDUCT PROTECTED AGAINST STATE PROSCRIPTION. 
PP. 390-393. 

201 SO.2D 253, REVERSED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES OUT OF THE NATION'S LONGEST RAILROAD LABOR DISPUTE,
MUCH OF THE HISTORY OF WHICH IS RECORDED IN THE PAGES OF THE UNITED
STATES AND FEDERAL REPORTS.  /1/  THE EVENTS MOST PERTINENT TO THE
PRESENT LITIGATION BEGAN ON APRIL 24, 1966, WHEN THE FLORIDA EAST COAST
RAILWAY COMPANY (FEC), HAVING EXHAUSTED ALL PROCEDURES REQUIRED BY THE
RAILWAY LABOR ACT /2/  FOR THE RESOLUTION OF A "MAJOR DISPUTE,"  /3/
UNILATERALLY CHANGED ITS OPERATING EMPLOYEES' RATES OF PAY, RULES, AND
WORKING CONDITIONS.  PETITIONERS, WHO REPRESENT FEC'S OPERATING
EMPLOYEES, RESPONDED BY CALLING A STRIKE AND THEREAFTER BY PICKETING
THE VARIOUS LOCATIONS AT WHICH FEC CARRIED ON ITS OPERATIONS, INCLUDING
THE PREMISES OF THE RESPONDENT, JACKSONVILLE TERMINAL COMPANY.  /4/ 

ON THE COMPLAINT OF RESPONDENT AND TWO RAILROADS OTHER THAN FEC, A
UNITED STATES DISTRICT COURT ISSUED A TEMPORARY RESTRAINING ORDER
SEVERAL HOURS AFTER THE PICKETING BEGAN, AND LATER ENJOINED PETITIONERS
FROM PICKETING RESPONDENT'S PREMISES EXCEPT AT A "RESERVED GATE" SET
ASIDE FOR FEC EMPLOYEES.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
REVERSED, HOLDING THAT THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C.
101 ET SEQ., PREVENTED ISSUANCE OF A FEDERAL INJUNCTION.  RAILROAD
TRAINMEN V. ATLANTIC C.L.R. CO., 362 F.2D 649 (1966).  WE AFFIRMED BY
AN EQUALLY DIVIDED COURT.  385 U.S. 20 (1966). 

WHILE THAT LITIGATION WAS PENDING IN THE FEDERAL COURTS, RESPONDENT
INSTITUTED THE PRESENT ACTION FOR INJUNCTIVE RELIEF IN THE FLORIDA
CIRCUIT COURT.  PETITIONERS REMOVED THE ACTION TO THE UNITED STATES
DISTRICT COURT, WHICH PROMPTLY REMANDED TO THE STATE COURT.  THE
FLORIDA COURT ISSUED A TEMPORARY INJUNCTION, SUBSTANTIALLY IDENTICAL TO
THE EARLIER FEDERAL ORDER, WHICH IT MADE FINAL AFTER A FULL HEARING. 
ON APPEAL, THE FLORIDA DISTRICT COURT OF APPEAL AFFIRMED PER CURIAM. 
THE SUPREME COURT OF FLORIDA DENIED CERTIORARI AND DISMISSED THE
APPEAL.  WE GRANTED CERTIORARI, 392 U.S. 904 (1968), TO DETERMINE THE
EXTENT OF STATE POWER TO REGULATE THE ECONOMIC COMBAT OF PARTIES
SUBJECT TO THE RAILWAY LABOR ACT. 

        I. 

RESPONDENT, A FLORIDA CORPORATION, OPERATES A PASSENGER AND FREIGHT
RAIL TERMINAL FACILITY IN JACKSONVILLE, FLORIDA, THROUGH WHICH RAIL
TRAFFIC PASSES TO AND FROM THE FLORIDA PENINSULA.  THE CORPORATION IS
JOINTLY OWNED AND CONTROLLED BY FOUR RAILROAD CARRIERS, INCLUDING FEC,
WHICH ENJOY THE COMMON USE OF THE TERMINAL'S FACILITIES AND SERVICES,
AND SHARE EQUALLY IN ITS OPERATION.  /5/ 

FEC CARRIES ON SUBSTANTIAL DAILY OPERATIONS AT THE TERMINAL,
INTERCHANGING FREIGHT CARS WITH THE OTHER RAILROADS; IT ACCOUNTS FOR
APPROXIMATELY 30% OF ALL INTERCHANGES ON THE PREMISES.  RESPONDENT
PROVIDES VARIOUS SERVICES NECESSARY TO FEC'S OPERATIONS, INCLUDING
SWITCHING, SIGNALLING, TRACK MAINTENANCE, AND REPAIRS ON FEC CARS AND
ENGINES.  WITHOUT THE WORK AND COOPERATION OF EMPLOYEES OF RESPONDENT
(AND THE OTHER RAILROADS) FEC COULD NOT CARRY ON ITS NORMAL ACTIVITIES
AT THE TERMINAL.  IN SHORT, "DESPITE THE LEGAL SEPARATENESS OF THE
TERMINAL COMPANY'S ENTITY AND OPERATION, IT CANNOT BE DISPUTED THAT THE
FACILITIES AND SERVICES PROVIDED BY THE TERMINAL COMPANY IN FACT
CONSTITUTE AN INTEGRAL PART OF THE DAY-TO-DAY OPERATIONS OF THE FEC.  .
. . "  RAILROAD TRAINMEN V. ATLANTIC C.L.R. CO., 362 F.2D 649, 651
(1966). 

RESPONDENT MAINTAINS A "RESERVED GATE" FOR THE EXCLUSIVE USE OF ALL
FEC EMPLOYEES ENTERING THE TERMINAL PREMISES ON FOOT TO BEGIN THEIR
WORKDAY.  NOTICES TO THIS EFFECT ARE POSTED, BUT COMPLIANCE IS NOT
POLICED:  FEC EMPLOYEES USE OTHER ENTRANCES AS WELL, AND OTHER
EMPLOYEES USE THE FEC RESERVED ENTRANCE.  THE TERMINAL HAS A NUMBER OF
OTHER FOOT, ROAD, AND RAIL ENTRANCES, THROUGH WHICH PASS EMPLOYEES OF
RESPONDENT AND THE RAILROADS USING THE PREMISES.  NO ENTRANCES ARE SET
ASIDE TO SEPARATE THOSE EMPLOYEES OF RESPONDENT AND THE OTHER RAILROADS
WHO PROVIDE SERVICES FOR FEC FROM THOSE WHO DO NOT; NOR, WITH ONE OR
TWO POSSIBLE EXCEPTIONS, DO TRAINS MAKING INTERCHANGES WITH FEC PASS
THROUGH DIFFERENT GATEWAYS FROM THOSE WHICH DO NOT.  THE JOINT AND
COMMON USE OF THE PREMISES AND FACILITIES WOULD, PRESUMABLY, RENDER
SUCH SEPARATIONS IMPRACTICABLE. 

ON MAY 4, 1966, PETITIONERS BEGAN TO PICKET ALMOST EVERY ENTRANCE TO
THE TERMINAL.  THE SIGNS STATED CLEARLY THAT THE DISPUTE WAS WITH FEC
ALONE, AND URGED "FELLOW RAILROAD MEN" NOT TO "CROSS" AND NOT TO
"ASSIST FEC."  /6/  THE PICKETING WAS ENTIRELY PEACEFUL.  IT LASTED
ONLY A FEW HOURS, UNTIL IT WAS CURTAILED BY A FEDERAL TEMPORARY
RESTRAINING ORDER, AND THEREAFTER BY A SERIES OF FEDERAL AND STATE
INJUNCTIONS. 

THE FLORIDA CIRCUIT COURT FOUND THAT RESUMPTION OF GENERAL PICKETING
"WOULD RESULT IN A VIRTUAL CESSATION OF ACTIVITIES . . . OF THE
TERMINAL COMPANY," AND WOULD CAUSE SERIOUS ECONOMIC DAMAGE TO THE
ENTIRE STATE.  JOINT APP. 183.  THE COURT HELD THAT THE PICKETING
CONSTITUTED A SECONDARY BOYCOTT ILLEGAL UNDER STATE LAW; THAT IT
UNJUSTIFIABLY INTERFERED WITH RESPONDENT'S BUSINESS RELATIONS; THAT IT
VIOLATED THE STATE'S RESTRAING OF TRADE LAWS, FLA. STAT. SEC. 542.01 ET
SEQ. (1965); AND THAT IT SOUGHT TO FORCE RESPONDENT TO VIOLATE ITS
DUTIES AS A CARRIER UNDER THE FLORIDA TRANSPORTATION ACT.  /7/  ON THIS
BASIS, THE COURT ENJOINED PETITIONERS FROM PICKETING THE TERMINAL
EXCEPT AT THE FEC RESERVED GATE, AND FROM CAUSING OR INDUCING
RESPONDENT'S EMPLOYEES TO CEASE PERFORMING THEIR DUTIES OF EMPLOYMENT
IN CONNECTION WITH THE FEC DISPUTE. 

        II. 

WE CONSIDER INITIALLY PETITIONERS' ARGUMENT THAT THE JURISDICTION OF
THE FLORIDA COURT WAS OUSTED BY THE PRIMARY AND EXCLUSIVE JURISDICTION
OF THE NATIONAL LABOR RELATIONS BOARD.  CF. SAN DIEGO UNIONS V. GARMON,
359 U.S. 236 (1959). 

IT IS NOT DISPUTED THAT PETITIONERS, THE RESPONDENT AND ITS
EMPLOYEES, AND THE RAILROADS (INCLUDING FEC) THAT USE THE TERMINAL AS
WELL AS THEIR EMPLOYEES, ARE SUBJECT TO THE RAILWAY LABOR ACT.  SEE
SECS. 1 FIRST, FOURTH, 44 STAT. 577, AS AMENDED, 45 U.S.C. SECS. 151
FIRST, FOURTH; INTERSTATE COMMERCE ACT, AS AMENDED, SEC. 1(3), 24 STAT.
379, 49 U.S.C. SEC. 1(3).  THE PETITIONER ORGANIZATIONS "ARE COMPOSED
PREDOMINANTLY AND OVERWHELMINGLY OF EMPLOYEES . . . SUBJECT TO THE
RAILWAY LABOR ACT," JOINT APP. 93; ALL PICKETS WERE MEMBERS OF LOCAL
LODGES COMPOSED SOLELY OF SUCH EMPLOYEES, AND WERE EMPLOYEES OF THE
FEC.  ID., AT 94.  HOWEVER, THE ORGANIZATIONS' NATIONAL MEMBERSHIP
INCLUDES A SMALL PERCENTAGE OF EMPLOYEES WHO ARE NOT SUBJECT TO THE
NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, AS AMENDED BY THE LABOR
MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 136, 29 U.S.C. 151 ET SEQ.
PETITIONERS CONTEND THAT THIS IS SUFFICIENT TO BRING THE PRESENT
DISPUTE ARGUABLY WITHIN THE NLRA, AND THEY ASSERT THAT UNTIL THE
NATIONAL LABOR RELATIONS BOARD DECIDES OTHERWISE, NO COURT MAY ASSUME
JURISDICTION OVER THE CONTROVERSY.  CF. MARINE ENGINEERS V. INTERLAKE
STEAMSHIP CO., 370 U.S. 173 (1962).  /9/ 

THIS ARGUMENT PROVES TOO MUCH.  FOR ON PETITIONERS' THEORY, IT IS
HARD TO CONCEIVE OF ANY RAILWAY LABOR DISPUTE THAT IS NOT "ARGUABLY"
SUBJECT TO THE NLRB'S PRIMARY JURISDICTION.  A SERIOUS QUESTION WOULD
BE PRESENTED WHETHER THE PARTIES TO SUCH A DISPUTE WERE EVER OBLIGATED
TO PURSUE THE RAILWAY LABOR ACT'S PROCEDURES, AND WHETHER THE MEDIATION
AND ADJUSTMENT BOARDS COULD EVER CONCERN THEMSELVES WITH A DISPUTE--
UNTIL THE MATTER HAD FIRST BEEN SUBMITTED TO THE NLRB AND THAT AGENCY
HAD DETERMINED THAT IT LACKED JURISDICTION. 

THIS WAS NOT MEANT TO BE.  THE NLRA CAME INTO BEING AGAINST THE
BACKGROUND OF PRE-EXISTING COMPREHENSIVE FEDERAL LEGISLATION REGULATING
RAILWAY LABOR DISPUTES.  SECTIONS 2(2) AND (3) OF THE NLRA, 29 U.S.C.
152(2), (3), EXPRESSLY EXEMPT FROM THE ACT'S COVERAGE EMPLOYEES AND
EMPLOYERS SUBJECT TO THE RAILWAY LABOR ACT.  /10/  AND WHEN THE
TRADITIONAL RAILWAY LABOR ORGANIZATIONS ACT ON BEHALF OF EMPLOYEES
SUBJECT TO THE RAILWAY LABOR ACT IN A DISPUTE WITH CARRIERS SUBJECT TO
THE RAILWAY LABOR ACT, THE ORGANIZATIONS MUST BE DEEMED, PRO TANTO,
EXEMPT FROM THE NATIONAL LABOR RELATIONS ACT.  SEE NLRA SEC. 2(5), 29
U.S.C. 152(5).  MARINE ENGINEERS, SUPRA, IS INAPPOSITE.  FOR ASSUMING,
ARGUENDO, THAT THIS IS A "DOUBTFUL CASE,"  370 U.S., AT 182, WE WERE
NOT THERE CONCERNED WITH A CONFLICT BETWEEN TWO INDEPENDENT AND
MUTUALLY EXCLUSIVE FEDERAL LABOR SCHEMES. 

WHATEVER MIGHT BE SAID WHERE RAILWAY ORGANIZATIONS ACT AS AGENTS
FOR, OR AS JOINT VENTURERS WITH, UNIONS SUBJECT TO THE NLRA, SEE
ELECTRICAL WORKERS V. NLRB, 122 U.S.APP.D.C. 8, 350 F.2D 791 (1965); OR
WHERE RAILWAY UNIONS ARE ENGAGED IN A DISPUTE ON BEHALF OF THEIR
NONRAIL EMPLOYEES; OR WHERE A RAIL CARRIER SEEKS A REMEDY AGAINST THE
CONDUCT OF NONRAILWAY EMPLOYEES, SEE STEELWORKERS V. NLRB, 376 U.S.
492, 501 (1964); TEAMSTERS UNION V. NEW YORK, N.H. & H.R. CO., 350 U.S.
155 (1956), NONE OF THESE IS THIS CASE.  THIS IS A RAILWAY LABOR
DISPUTE, PURE AND SIMPLE.  AND ALTHOUGH WE SHALL MAKE USE OF ANALOGIES
DRAWN FROM THE NLRA TO DETERMINE THE RIGHTS OF EMPLOYEES SUBJECT TO THE
RAILWAY LABOR ACT, SEE INFRA, PARTS V-VII, THE NLRA HAS NO DIRECT
APPLICATION TO THE PRESENT CASE. 

        III. 

THE HEART OF THE RAILWAY LABOR ACT IS THE DUTY, IMPOSED BY SEC. 2
FIRST UPON MANAGEMENT AND LABOR, "TO EXERT EVERY REASONABLE EFFORT TO
MAKE AND MAINTAIN AGREEMENTS CONCERNING RATES OF PAY, RULES, AND
WORKING CONDITIONS, AND TO SETTLE ALL DISPUTES . . . IN ORDER TO AVOID
ANY INTERRUPTION TO COMMERCE OR TO THE OPERATION OF ANY CARRIER GROWING
OUT OF ANY DISPUTE BETWEEN THE CARRIER AND THE EMPLOYEES THEREOF." 

THE ACT PROVIDES A DETAILED FRAMEWORK TO FACILITATE THE VOLUNTARY
SETTLEMENT OF MAJOR DISPUTES.  A PARTY DESIRING TO EFFECT A CHANGE OF
RATES OF PAY, RULES, OR WORKING CONDITIONS MUST GIVE ADVANCE WRITTEN
NOTICE.  SEC. 6.  THE PARTIES MUST CONFER, SEC. 2 SECOND, AND IF
CONFERENCE FAILS TO RESOLVE THE DISPUTE, EITHER OR BOTH MAY INVOKE THE
SERVICES OF THE NATIONAL MEDIATION BOARD, WHICH MAY ALSO PROFFER ITS
SERVICES SUA SPONTE IF IT FINDS A LABOR EMERGENCY TO EXIST.  SEC. 5
FIRST.  IF MEDIATION FAILS, THE BOARD MUST ENDEAVOR TO INDUCE THE
PARTIES TO SUBMIT THE CONTROVERSY TO BINDING ARBITRATION, WHICH CAN
TAKE PLACE, HOWEVER, ONLY IF BOTH CONSENT.  SECS. 5 FIRST, 7.  IF
ARBITRATION IS REJECTED AND THE DISPUTE THREATENS "SUBSTANTIALLY TO
INTERRUPT INTERSTATE COMMERCE TO A DEGREE SUCH AS TO DEPRIVE ANY
MEDIATION BOARD SHALL NOTIFY THE PRESIDENT," WHO MAY CREATE AN
EMERGENCY BOARD TO INVESTIGATE AND REPORT ON THE DISPUTE.  SEC. 10. 
WHILE THE DISPUTE IS WORKING ITS WAY THROUGH THESE STAGES, NEITHER
PARTY MAY UNILATERALLY ALTER THE STATUS QUO.  SECS. 2 SEVENTH, 5 FIRST,
6, 10. 

NOWHERE DOES THE TEXT OF THE RAILWAY LABOR ACT SPECIFY WHAT IS TO
TAKE PLACE ONCE THESE PROCEDURES HAVE BEEN EXHAUSTED WITHOUT YIELDING
RESOLUTION OF THE DISPUTE.  IMPLICIT IN THE STATUTORY SCHEME, HOWEVER,
IS THE ULTIMATE RIGHT OF THE DISPUTANTS TO RESORT TO SELF-HELP-- "THE
INEVITABLE ALTERNATIVE IN A STATUTORY SCHEME WHICH DELIBERATELY DENIES
THE FINAL POWER TO COMPEL ARBITRATION."  FLORIDA E.C.R. CO. V. RAILROAD
TRAINMEN, 336 F.2D 172, 181 (1964).  WE HAVE CONSISTENTLY SO HELD IN A
LONG LINE OF DECISIONS.  RAILWAY CLERKS V. FLORIDA E.C.R. CO., 384 U.S.
238, 244 (1966); LOCOMOTIVE ENGINEERS V. BALTIMORE & O.R. CO., 372 U.S.
284 (1963); RAILROAD TELEGRAPHERS V. CHICAGO & N.W.R. CO., 362 U.S. 330
(1960); ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711, 725 (1945). 

BOTH BEFORE AND AFTER ENACTMENT OF THE RAILWAY LABOR ACT, /11/  AS
WELL AS DURING CONGRESSIONAL DEBATES ON THE BILL ITSELF, /12/
PROPOSALS WERE ADVANCED FOR REPLACING THIS FINAL RESORT TO ECONOMIC
WARFARE WITH COMPULSORY ARBITRATION AND ANTISTRIKE LAWS.  BUT ALTHOUGH
CONGRESS AND THE EXECUTIVE HAVE TAKEN EMERGENCY AD HOC MEASURES TO
COMPEL THE RESOLUTION OF PARTICULAR CONTROVERSIES, /13/  NO SUCH
GENERAL PROVISIONS HAVE EVER BEEN ENACTED.  AND FOR THE SETTLEMENT OF
MAJOR DISPUTES, 

"THE STATUTORY SCHEME RETAINS THROUGHOUT THE TRADITIONAL VOLUNTARY
PROCESSES OF NEGOTIATION, MEDIATION, VOLUNTARY ARBITRATION, AND
CONCILIATION.  EVERY FACILITY FOR BRINGING ABOUT AGREEMENT IS PROVIDED
AND PRESSURES FOR MOBILIZING PUBLIC OPINION ARE APPLIED.  THE PARTIES
ARE REQUIRED TO SUBMIT TO THE SUCCESSIVE PROCEDURES DESIGNED TO INDUCE
AGREEMENT.  SEC. 5 FIRST (B).  BUT COMPULSIONS GO ONLY TO INSURE THAT
THOSE PROCEDURES ARE EXHAUSTED BEFORE RESORT CAN BE HAD TO SELF-HELP. 
NO AUTHORITY IS EMPOWERED TO DECIDE THE DISPUTE AND NO SUCH POWER IS
INTENDED, UNLESS THE PARTIES THEMSELVES AGREE TO ARBITRATION."  ELGIN,
J. & E.R. CO. V. BURLEY, SUPRA, AT 725. 

        IV. 

WE HAVE NOT PREVIOUSLY HAD OCCASION TO CONSIDER WHETHER THE RAILWAY
LABOR ACT CIRCUMSCRIBES STATE POWER TO REGULATE ECONOMIC WARFARE
BETWEEN DISPUTANTS SUBJECT TO THE ACT.  READ NARROWLY, THE DECISIONS
CITED ABOVE, AT 379, DO NO MORE THAN NEGATE THE "IMPLICATION" OF AN
INDEPENDENT FEDERAL REMEDY AGAINST SELF-HELP, /14/  AND DO NOT
FORECLOSE A STATE FROM BRINGING ITS OWN SANCTIONS TO BEAR ON SUCH
CONDUCT.  ON THIS THEORY, ONCE THE ACT'S REQUIRED PROCESSES HAVE BEEN
EXHAUSTED, A STATE WOULD BE FREE TO IMPOSE WHATEVER RESTRICTIONS IT
WISHED ON THE PARTIES' USE OF SELF-HELP.     THE ACT IS SILENT ON THIS
QUESTION, AS IS ITS LEGISLATIVE HISTORY.  /15/  WE THINK IT CLEAR,
HOWEVER, THAT THE EXERCISE OF PLENARY STATE AUTHORITY TO CURTAIL OR
ENTIRELY PROHIBIT SELF-HELP WOULD FRUSTRATE EFFECTIVE IMPLEMENTATION OF
THE ACT'S PROCESSES.  THE DISPUTANTS'  POSITIONS IN THE COURSE OF
NEGOTIATION AND MEDIATION, AND THEIR WILLINGNESS TO SUBMIT TO BINDING
ARBITRATION OR ABIDE BY THE RECOMMENDATIONS OF A PRESIDENTIAL
COMMISSION, WOULD BE SERIOUSLY AFFECTED BY THE KNOWLEDGE THAT AFTER
THESE PROCEDURES WERE EXHAUSTED A STATE WOULD SAY, PROHIBIT THE
EMPLOYEES FROM STRIKING OR PREVENT THE RAILROAD FROM TAKING MEASURES
NECESSARY TO CONTINUE OPERATING IN THE FACE OF A STRIKE.  SUCH
INTERFERENCE WOULD BE COMPOUNDED IF THE DISPUTANTS WERE-- AS THEY
FREQUENTLY WOULD BE-- SUBJECTED TO VARIOUS AND DIVERGENT STATE LAWS. 
RAILWAY (AND AIRLINE /16/) LABOR DISPUTES TYPICALLY PRESENT PROBLEMS OF
NATIONAL MAGNITUDE.  A STRIKE IN ONE STATE OFTEN PARALYZES
TRANSPORTATION IN AN ENTIRE SECTION OF THE UNITED STATES, AND
TRANSPORTATION LABOR DISPUTES FREQUENTLY RESULT IN SIMULTANEOUS WORK
STOPPAGES IN MANY STATES. 

THE RAILWAY LABOR ACT'S ENTIRE SCHEME FOR THE RESOLUTION OF MAJOR
DISPUTES WOULD BECOME MEANINGLESS IF THE STATES COULD PROHIBIT THE
PARTIES FROM ENGAGING IN ANY SELF-HELP.  AND THE POTENTIALS FOR
CONFLICT, SEE SAN DIEGO UNIONS V. GARMON, 359 U.S. 236, 249, 250 (1959)
(CONCURRING OPINION), AND FOR THE IMPOSITION OF INCONSISTENT STATE
OBLIGATIONS, CF. CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363
(1943), ARE SIMPLY TOO GREAT TO ALLOW EACH STATE WHICH HAPPENS TO GAIN
PERSONAL JURISDICTION OVER A PARTY TO A RAILROAD LABOR DISPUTE TO
DECIDE FOR ITSELF WHAT ECONOMIC SELF-HELP THAT PARTY MAY OR MAY NOT
PURSUE.  THE DETERMINATION OF THE PERMISSIBLE RANGE OF SELF-HELP
"CANNOT BE LEFT TO THE LAWS OF THE MANY STATES, FOR IT WOULD BE FATAL
TO THE GOALS OF THE ACT" IF CONDUCT WERE PROHIBITED BY STATE LAWS "EVEN
THOUGH IN FURTHERANCE OF THE FEDERAL SCHEME.  THE NEEDS OF THE SUBJECT
MATTER MANIFESTLY CALL FOR UNIFORMITY."  MACHINISTS V. CENTRAL
AIRLINES, INC., 372 U.S. 682, 691-692 (1963). 

IT FOLLOWS THAT EVEN THOUGH THE FLORIDA COURTS MAY HAVE JURISDICTION
OVER THIS LITIGATION, THE APPLICATION OF STATE LAW IS LIMITED BY
PARAMOUNT FEDERAL POLICIES OF NATIONWIDE IMPORT. 

        V. 

WE ARE PRESENTED, THEN, WITH THE PROBLEM OF DELINEATING THE AREA OF
LABOR COMBAT PROTECTED /17/  AGAINST INFRINGEMENT BY THE STATES.  THE
TEXT AND LEGISLATIVE HISTORY OF THE RAILWAY LABOR ACT, AND THE
DECISIONAL LAW THEREUNDER, PROVIDE LITTLE GUIDANCE.  TO REFER TO THE
"GENERAL" LABOR LAW, AS IT EXISTED AROUND THE TIME THE ACT CAME INTO
BEING, WOULD BE A HISTORICAL.  LIKE FORAYS INTO ECONOMIC DUE PROCESS,
SEE FERGUSON V. SKRUPA, 372 U.S. 726 (1963); WILLIAMSON V. LEE OPTICAL
CO., 348 U.S. 483, 488 (1955), THIS JUDGE-MADE LAW OF THE LATE 19TH AND
EARLY 20TH CENTURIES WAS BASED ON SELF-MESMERIZED VIEWS OF ECONOMIC AND
SOCIAL THEORY, SEE F. FRANKFURTER & N. GREEN, THE LABOR INJUNCTION 1
46, 199-205 (1930); A. COX & D. BOK, CASES ON LABOR LAW 101-105 (5TH
ED. 1962), AND ON STATUTORY MISCONSTRUCTION, SEE UNITED STATES V.
HUTCHESON, 312 U.S. 219 (1941).  WE NEED NOT HOLD THAT THE NORRIS
LAGUARDIA ACT APPLIES DIRECTLY TO THIS CASE /18/  TO FIND IN ITS
ENACTMENT A CLEAR DISAPPROVAL OF THESE FREE-WHEELING JUDICIAL
EXERCISES.  SEE MEAT CUTTERS V. JEWEL TEA CO., 381 U.S. 676, 697, 700
709, 718 (1965) (SEPARATE OPINION OF MR. JUSTICE GOLDBERT). 

TO THE EXTENT THAT THERE EXISTS TODAY ANY RELEVANT CORPUS OF
"NATIONAL LABOR POLICY," IT IS IN THE LAW DEVELOPED DURING THE MORE
THAN 30 YEARS OF ADMINISTERING OUR MOST COMPREHENSIVE NATIONAL LABOR
SCHEME, THE NATIONAL LABOR RELATIONS ACT.  THIS ACT REPRESENTS THE ONLY
EXISTING CONGRESSIONAL EXPRESSION AS TO THE PERMISSIBLE BOUNDS OF
ECONOMIC COMBAT.  IT HAS, MOREOVER, PRESENTED PROBLEMS OF FEDERAL-STATE
RELATIONS ANALOGOUS TO THOSE AT BAR.  THE COURT HAS IN THE PAST
REFERRED TO THE NLRA FOR ASSISTANCE IN CONSTRUING THE RAILWAY LABOR
ACT, SEE E.G., STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192, 200-201
(1944); RAILROAD TRAINMEN V. TOLEDO, P. & W.R. CO., 321 U.S. 50, 61, N.
18 (1944), AND WE DO SO AGAIN HERE.  INDEED, EVEN IF WE WERE TO REVIVE
THE "COMMON LAW" OF LABOR RELATIONS, THE COMMON LAW HAS ALWAYS BEEN
DYNAMIC AND ADAPTABLE TO CHANGING TIMES, AND WE WOULD TODAY LOOK TO
THESE LEGISLATIVELY BASED PRINCIPLES FOR GUIDANCE.  CF. TEXTILE WORKERS
V. LINCOLN MILLS, 353 U.S. 448, 456-458 (1957). 

IT SHOULD BE EMPHASIZED FROM THE OUTSET, HOWEVER, THAT THE NATIONAL
LABOR RELATIONS ACT CANNOT BE IMPORTED WHOLESALE INTO THE RAILWAY LABOR
ARENA.  EVEN ROUGH ANALOGIES MUST BE DRAWN CIRCUMSPECTLY, WITH DUE
REGARD FOR THE MANY DIFFERENCES BETWEEN THE STATUTORY SCHEMES.  /19/
CF. RAILROAD TRAINMEN V. CHICAGO RIVER & I.R. CO., 353 U.S. 30, 31, N.
2 (1957).  WE REFER TO THE NLRA'S POLICIES NOT IN ORDER TO "APPLY" THEM
TO PETITIONERS' CONDUCT-- FOR WE CONCLUDE THAT THIS WOULD BE NEITHER
JUSTIFIED NOR PRACTICABLE-- BUT ONLY TO DETERMINE WHETHER IT IS WITHIN
THE GENERAL PENUMBRA OF CONDUCT HELD PROTECTED UNDER THE ACT OR WHETHER
IT IS BEYOND THE PALE OF ANY ACTIVITY THOUGHT PERMISSIBLE. 

IN ORDER TO GAIN BETTER PERSPECTIVE FOR VIEWING THE CENTRAL ISSUES
IN THIS CASE-- PETITIONERS' ALLEGED "SECONDARY" ACTIVITIES-- WE EXAMINE
FIRST WHAT WE FIND TO BE POLAR EXAMPLES OF PROTECTED AND UNPROTECTED
CONDUCT-- PRIMARY STRIKES AND PICKETING ON THE ONE HAND, VIOLENCE AND
INTIMIDATION ON THE OTHER. 

        VI. 

THE COURT HAS INDICATED, WITHOUT REFERENCE TO THE NATIONAL LABOR
RELATIONS ACT, THAT EMPLOYEES SUBJECT TO THE RAILWAY LABOR ACT ENJOY
THE RIGHT TO ENGAGE IN PRIMARY STRIKES OVER MAJOR DISPUTES.  IN RAILWAY
CLERKS V. FLORIDA E.C.R. CO., 384 U.S. 238, 244 (1966), WE HELD THAT: 

"THE UNIONS, HAVING MADE THEIR DEMANDS AND HAVING EXHAUSTED ALL THE
PROCEDURES PROVIDED BY CONGRESS, WERE THEREFORE WARRANTED IN STRIKING. 
FOR THE STRIKE HAS BEEN THE ULTIMATE SANCTION OF THE UNION, COMPULSORY
ARBITRATION NOT BEING PROVIDED."  SIMILARLY, IN FLORIDA E.C.R. CO. V.
RAILROAD TRAINMEN, 336 F.2D 172, 181 (1964), THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT CONCLUDED THAT "WHEN THE MACHINERY OF INDUSTRIAL
PEACE FAILS, THE POLICY IN ALL NATIONAL LABOR LEGISLATION IS TO LET
LOOSE THE FULL ECONOMIC POWER OF EACH (PARTY).  ON THE SIDE OF LABOR,
IT IS THE CHERISHED RIGHT TO STRIKE."  WHETHER THE SOURCE OF THIS RIGHT
BE FOUND IN A PARTICULAR PROVISION OF THE RAILWAY LABOR ACT /20/  OR IN
THE SCHEME AS A WHOLE, IT IS INTEGRAL TO THE ACT.  STATE COURTS MAY NOT
ENJOIN A PEACEFUL STRIKE BY COVERED RAILWAY EMPLOYEES, NO MATTER HOW
ECONOMICALLY HARMFUL THE CONSEQUENCES MAY BE.  CF. BUS EMPLOYEES V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, 340 U.S. 383 (1951); AUTOMOBILE
WORKERS V. O'BRIEN, 339 U.S. 454 (1950). 

THE COURT HAS CONSISTENTLY HELD PEACEFUL PRIMARY PICKETING INCIDENT
TO A LAWFUL STRIKE TO BE PROTECTED CONDUCT UNDER THE NATIONAL LABOR
RELATIONS ACT.  "PICKETING HAS TRADITIONALLY BEEN A MAJOR WEAPON TO
IMPLEMENT THE GOALS OF A STRIKE," STEELWORKERS V. NLRB, 376 U.S. 492,
499 (1964), AND "IT IS IMPLICIT IN THE ACT THAT THE PUBLIC INTEREST IS
SERVED BY FREEDOM OF LABOR TO USE THE WEAPON OF PICKETING."  GARNER V.
TEAMSTERS, 346 U.S. 485, 500 (1953).  WE SEE NO POSSIBLE GROUNDS FOR
DISTINGUISHING PICKETING UNDER THE RAILWAY LABOR ACT.  PEACEFUL PRIMARY
STRIKES AND PICKETING INCIDENT THERETO LIE WITHIN THE CORE OF PROTECTED
SELF-HELP UNDER THE RAILWAY LABOR ACT. 

ON THE OTHER HAND, THE NATIONAL LABOR RELATIONS ACT GIVES NO
COLORABLE PROTECTION TO VIOLENT AND COERCIVE CONDUCT INCIDENT TO A
LABOR DISPUTE.  ALLEN-BRADLEY LOCAL V. WISCONSIN EMPLOYMENT RELATIONS
BOARD, 315 U.S. 740, 750 (1942).  THE STATE INTEREST IN PREVENTING
"CONDUCT MARKED BY VIOLENCE AND IMMINENT THREATS TO PUBLIC ORDER" IS
COMPELLING, SAN DIEGO UNIONS V. GARMON, 359 U.S. 236, 247 (1959), AND
SUCH CONDUCT MAY BE ENJOINED BY STATE COURTS.  YOUNGDAHL V. RAINFAIR,
355 U.S. 131 (1957); AUTOMOBILE WORKERS V. WISCONSIN EMPLOYMENT
RELATIONS BOARD, 351 U.S. 266 (1956).  CF. AUTOMOBILE WORKERS V.
RUSSELL, 356 U.S. 634 (1958); CONSTRUCTION WORKERS V. LABURNUM
CONSTRUCTION CORP., 347 U.S. 656 (1954).  THE FEDERAL CONCERN FOR
PROTECTING SUCH CONDUCT WHEN ENGAGED IN BY RAILWAY EMPLOYEES IS NO LESS
TENUOUS.  THE STATES' INTEREST IN PREVENTING IT IS NO LESS COMPELLING. 

        VII. 

PETITIONERS COMMITTED NO ACTS OF VIOLENCE.  BUT THEIR PICKETING,
ALBEIT PEACEFUL, COULD NOT BE CHARACTERIZED AS PURELY "PRIMARY." 
RESPONDENT ASSERTS, IN ESSENCE, THAT, BECAUSE THE PICKETING HAD
SECONDARY ASPECTS, IT WAS NECESSARILY UNPROTECTED AND THEREFORE SUBJECT
TO PROSCRIPTION BY THE STATE COURT.  THE MATTER, HOWEVER, IS NOT SO
SIMPLY RESOLVED. 

NO COSMIC PRINCIPLES ANNOUNCE THE EXISTENCE OF SECONDARY CONDUCT,
CONDEMN IT AS AN EVIL, OR DELIMIT ITS BOUNDARIES.  THESE TASKS WERE
FIRST UNDERTAKEN BY JUDGES, INTERMIXING METAPHYSICS WITH THEIR NOTIONS
OF SOCIAL AND ECONOMIC POLICY.  AND THE COMMON LAW OF LABOR RELATIONS
HAS CREATED NO CONCEPT MORE ELUSIVE THAN THAT OF "SECONDARY" CONDUCT;
IT HAS DRAWN NO LINES MORE ARBITRARY, TENUOUS, AND SHIFTING THAN THOSE
SEPARATING "PRIMARY" FROM "SECONDARY" ACTIVITIES.  SEE F. FRANKFURTER &
N. GREEN, THE LABOR INJUNCTION 43-46, 170 (1930); 1 L. TELLER, LABOR
DISPUTES AND COLLECTIVE BARGAINING SEC. 145 (1940); E. OAKES, ORGANIZED
LABOR AND INDUSTRIAL CONFLICTS, SEC. 407 ET SEQ. (1927); BARNARD &
GRAHAM, LABOR AND THE SECONDARY BOYCOTT, 15 WASH.L.REV.  137 (1940);
HELLERSTEIN, SECONDARY BOYCOTTS IN LABOR DISPUTES, 47 YALEL.J. 341
(1938).  CF. AARON, LABOR INJUNCTIONS IN THE STATE COURTS-- PT. I:  A
SURVEY, 50 VA.L.REV.  950, 971-977 (1964).  FOR THESE REASONS, AS WELL
AS THOSE STATED ABOVE, AT 382-383, THIS BODY OF COMMON LAW OFFERS NO
GUIDANCE FOR THE PROBLEM AT HAND. 

IT WAS WIDELY ASSUMED THAT, PRIOR TO 1947, THE NORRIS-LAGUARDIA ACT
PREVENTED FEDERAL COURTS FROM ENJOINING ANY "SECONDARY BOYCOTTS."  SEE
93 CONG.REC.  4198 (REMARKS OF SENATOR TAFT); BAKERY DRIVERS V.
WAGSHAL, 333 U.S. 437, 442 (1948).  INDEED, IN AN OPINION WRITTEN BY
JUDGE LEARNED HAND, THE COURT OF APPEALS FOR THE SECOND CIRCUIT HELD
THAT SECONDARY CONDUCT WAS FULLY PROTECTED BY THE WAGNER ACT.  NLRB V.
PETER CAILLER KOHLER SWISS CHOCOLATES CO., 130 F.2D 503 (1942).  THE
1947 TAFT-HARTLEY AMENDMENTS, 61 STAT. 140, AND THE 1959 LANDRUM
GRIFFIN AMENDMENTS, 73 STAT. 545, EXPLICITLY NARROWED THE SCOPE OF
PROTECTED EMPLOYEE CONDUCT UNDER THE NATIONAL LABOR RELATIONS ACT;
SECS. 8(B)(4) AND 8(E) OF THE ACT PROSCRIBED A VARIETY OF SECONDARY
ACTIVITIES.  /21/  BUT CONGRESS ENACTED "NO . . . SWEEPING PROHIBITION"
OF SECONDARY CONDUCT.  CARPENTERS V. NLRB, 357 U.S. 93, 98 (1958).  AND
DESPITE THEIR RELATIVE PRECISION OF LANGUAGE, /22/  THE EXPERIENCE
UNDER THESE AMENDMENTS AMPLY DEMONSTRATES THAT-- AS AT COMMON LAW--
BRIGHT LINES CANNOT BE DRAWN BETWEEN "LEGITIMATE 'PRIMARY ACTIVITY' AND
BANNED 'SECONDARY ACTIVITY' . . . . "  ELECTRICAL WORKERS V. NLRB, 366
U.S. 667, 673 (1961). 

THE FUZZINESS OF THIS DISTINCTION STEMS FROM THE OVERLAPPING
CHARACTERISTICS OF THE TWO OPPOSING CONCEPTS, AND FROM THE VAGUENESS OF
THE CONCEPTS THEMSELVES.  THE PROTECTED PRIMARY STRIKE "IS AIMED AT
APPLYING ECONOMIC PRESSURE BY HALTING THE DAY-TO-DAY OPERATIONS OF THE
STRUCK EMPLOYER," STEELWORKERS V. NLRB, 376 U.S. 492, 499 (1964); AND
PROTECTED PRIMARY PICKETING "HAS CHARACTERISTICALLY BEEN AIMED AT ALL
THOSE APPROACHING THE SITUS WHOSE MISSION IS SELLING, DELIVERING OR
OTHERWISE CONTRIBUTING TO THE OPERATIONS WHICH THE STRIKE IS
ENDEAVORING TO HALT," IBID., INCLUDING OTHER EMPLOYERS AND THEIR
EMPLOYEES.  "THE GRAVAMEN OF A SECONDARY BOYCOTT," ON THE OTHER HAND,
"IS THAT ITS SANCTIONS BEAR, NOT UPON THE EMPLOYER WHO ALONE IS A PARTY
TO THE DISPUTE, BUT UPON SOME THIRD PARTY WHO HAS NO CONCERN IN IT.
ITS AIM IS TO COMPEL HIM TO STOP BUSINESS WITH THE EMPLOYER TO GIVE IN
TO HIS EMPLOYEES' DEMANDS."  ELECTRICAL WORKERS V. NLRB, 181 F.2D 34,
37 (1950); SEE ALSO WOODWORK MANUFACTURERS V. NLRB, 386 U.S. 612, 623
(1967).  THESE PRINCIPLES OFTEN COME INTO CONFLICT, AND ATTEMPTS TO
HARMONIZE THEM IN THE CONTEXT OF SEC. 8(B)(4) OF THE NATIONAL LABOR
RELATIONS ACT HAVE CREATED RAMIFIED SETS OF RULES. 

THE PROBLEM OF DELINEATING THE SCOPE OF PERMISSIBLE PICKETING AT A
"COMMON SITUS"-- A PLACE, SUCH AS RESPONDENT'S TERMINAL, WHERE BOTH THE
STRUCK EMPLOYER AND "SECONDARY" OR "NEUTRAL" EMPLOYERS ARE CARRYING ON
BUSINESS ACTIVITIES-- HAS BEEN AMONG THE MOST MOOTED AND COMPLEX UNDER
THE ACT.  SEE GENERALLY ELECTRICAL WORKERS V. NLRB, 366 U.S. 667, 674
679 (1961); MOORE DRY DOCK CO., 92 N.L.R.B. 547 (1950); LESNICK, THE
GRAVAMEN OF THE SECONDARY BOYCOTT, 62 COL.L.REV.  1363 (1962); KORETZ,
FEDERAL REGULATION OF SECONDARY STRIKES AND BOYCOTTS-- ANOTHER CHAPTER,
59 CL.L.REV.  125 (1959).  IT IS DIFFICULT TO FORMULATE MANY
GENERALIZATIONS GOVERNING COMMON SITUS PICKETING, BUT IT IS CLEAR THAT
SECONDARY EMPLOYERS ARE NOT NECESSARILY PROTECTED AGAINST PICKETING
AIMED DIRECTLY AT THEIR EMPLOYEES.  IN ELECTRICAL WORKERS V. NLRB,
SUPRA, FOR EXAMPLE, WE NOTED THAT STRIKING EMPLOYEES COULD PICKET AT A
GATE ON THE STRUCK EMPLOYER'S PREMISES WHICH WAS RESERVED EXCLUSIVELY
FOR EMPLOYEES TO REFUSE TO PERFORM WORK FOR THEIR EMPLOYER WHICH WAS
CONNECTED WITH THE STRUCK EMPLOYER'S NORMAL BUSINESS OPERATIONS.  THE
COURT AFFIRMED THIS PRINCIPLE IN STEELWORKERS V. NLRB, SUPRA, WHERE IT
HELD THAT STRIKING EMPLOYEES COULD PICKET TO INDUCE A NEUTRAL
RAILROAD'S EMPLOYEES TO REFUSE TO PICK UP AND DELIVER CARS FOR THE
STRUCK EMPLOYER-- EVEN THOUGH THE PICKETED GATE WAS OWNED BY THE
RAILROAD, AND THE RAILROAD'S EMPLOYEES WOULD HAVE TO PASS BY THE PLACE
OF PICKETING TO PICK UP AND DELIVER CARS FOR OTHER PLANTS THAT WERE NOT
STRUCK.     IF THE COMMON SITUS RULES WERE APPLIED TO THE FACTS OF THIS
CASE-- CONSIDERING, FOR EXAMPLE, FEC'S SUBSTANTIAL REGULAR BUSINESS
ACTIVITIES ON THE TERMINAL PREMISES, FEC'S RELATIONSHIPS WITH
RESPONDENT AND THE OTHER RAILROADS USING THE PREMISES, /23/  THE MIXED
USE IN FACT OF THE PURPORTEDLY SEPARATE ENTRANCES, AND THE TERMINAL'S
CHARACTERISTICS WHICH MADE IT IMPOSSIBLE FOR THE PICKETS TO SINGLE OUT
AND ADDRESS ONLY THOSE SECONDARY EMPLOYEES ENGAGED IN WORK CONNECTED
WITH FEC'S ORDINARY OPERATIONS ON THE PREMISES-- THE STATE INJUNCTION
MIGHT WELL BE FOUND TO FORBID PETITIONERS FROM ENGAGING IN CONDUCT
PROTECTED BY THE NATIONAL LABOR RELATIONS ACT.  THE FACT THAT
RESPONDENT, THE OTHER ROADS, OR OTHER INDUSTRIES IN THE STATE SUFFERED
SERIOUS ECONOMIC INJURY AS A CONSEQUENCE OF PETITIONERS'  ACTIVITIES
WOULD NOT, OF COURSE, IN ITSELF RENDER THE PICKETING UNLAWFUL. 
WOODWORK MANUFACTURERS V. NLRB, 386 U.S. 612, 627 (1967); SEE NLRB V.
FRUIT & VEGETABLE PACKERS, 377 U.S. 58 (1964); CF. BUS EMPLOYEES V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, 340 U.S. 383 (1951). 

IN SHORT, TO CONDEMN ALL OF THE PETITIONERS' PICKETING WHICH CARRIES
ANY "SECONDARY" IMPLICATIONS WOULD BE TO PAINT WITH MUCH TOO BROAD A
BRUSH. 

        VIII. 

WE HAVE THUS FAR CONCLUDED THAT ALTHOUGH THE FLORIDA COURTS ARE NOT
PRE-EMPTED OF JURISDICTION OVER THIS CAUSE, PART II, SUPRA, THE ISSUES
THEREIN ARE GOVERNED BY FEDERAL LAW, PARTS III, IV, SUPRA; THAT THE
RAILWAY LABOR ACT PERMITS RAILWAY EMPLOYEES TO ENGAGE IN SOME FORMS OF
SELF-HELP, FREE FROM STATE INTERFERENCE, IBID.; AND, DRAWING UPON LABOR
POLICIES EVINCED BY THE NATIONAL LABOR RELATIONS ACT, PART V, SUPRA,
THAT SUCH PROTECTED SELF-HELP INCLUDES PEACEFUL "PRIMARY" STRIKES /24/
AND NON-VIOLENT PICKETING IN SUPPORT THEREOF, PART VI, SUPRA, AND THAT
IT CANNOT CATEGORICALLY BE SAID THAT ALL PICKETING CARRYING "SECONDARY"
IMPLICATIONS IS PROHIBITED, PART VII, SUPRA.  GIVEN THESE CONCLUSIONS,
IT REMAINS TO BE CONSIDERED WHETHER, UNDER THE PRESENT FRAMEWORK OF
CONGRESSIONAL LEGISLATION, THIS COURT SHOULD UNDERTAKE PRECISELY TO
MARK OUT WHICH OF THE PETITIONERS' PICKETING ACTIVITIES AT RESPONDENT'S
PREMISES ARE FEDERALLY PROTECTED, AND THEREFORE IMMUNE FROM STATE
INTERFERENCE, AND WHICH OF THEM ARE SUBJECT TO PROHIBITION BY THE
STATE.  WE BELIEVE THAT SUCH A COURSE WOULD BE A WHOLLY INAPPROPRIATE
ONE FOR US TO TAKE IN THE ABSENCE OF A MUCH CLEARER MANIFESTATION OF
CONGRESSIONAL POLICY THAN IS TO BE FOUND IN EXISTING LAWS. 

CERTAINLY WE COULD NOT PROCEED TO SUCH A TASK UNDER THE COMMON LAW
OF LABOR RELATIONS.  FOR EVEN ON THE UNJUSTIFIED HYPOTHESIS THAT ALL
SECONDARY CONDUCT IS NECESSARILY WRONGFUL, WE WOULD LACK MEANINGFUL
STANDARDS FOR SEPARATING PRIMARY FROM SECONDARY ACTIVITIES.  NOR DO THE
TERMS OF THE RAILWAY LABOR ACT OFFER ASSISTANCE.  AS WE HAVE INDICATED,
THE ACT IS WHOLLY INEXPLICIT AS TO THE SCOPE OF ALLOWABLE SELF-HELP. 

NOR CAN WE PROPERLY DISPOSE OF THIS CASE SIMPLY BY UNDERTAKING TO
DETERMINE TO WHAT PRECISE EXTENT PETITIONERS' PICKETING ACTIVITIES
WOULD BE PROTECTED OR PROSCRIBED UNDER THE TERMS OF THE NATIONAL LABOR
RELATIONS ACT.  FOR ALTHOUGH, IN THE ABSENCE OF ANY OTHER VIABLE
GUIDELINES, WE HAVE RESORTED TO THE NLRA FOR ASSISTANCE IN MAPPING OUT
VERY GENERAL BOUNDARIES OF SELF-HELP UNDER THE RAILWAY LABOR ACT, THERE
IS ABSOLUTELY NO WARRANT FOR INCORPORATING INTO THAT ACT THE PANOPLY OF
DETAILED LAW DEVELOPED BY THE NATIONAL LABOR RELATIONS BOARD AND COURTS
UNDER SEC. 8(B)(4).  THE NLRA, AS WE HAVE NOTED, EXEMPTS EMPLOYEES WHO
ARE SUBJECT TO THE RAILWAY LABOR ACT, SUPRA, AT 376-377; AND THE
INAPPLICABILITY OF SEC. 8(B) TO RAILROAD EMPLOYEES WAS SPECIFICALLY
POINTED OUT DURING THE CONGRESSIONAL DEBATES ON THE NLRA, SUPRA, AT 376
377, N. 10. 

EVEN IF THE TASK OF ADAPTING THE NLRA'S PRINCIPLES TO RAILWAY
DISPUTES COULD BE MANAGED AND IMPLEMENTED BY AN AGENCY WITH
ADMINISTRATIVE EXPERTISE, BUT CF. NLRB V. INSURANCE AGENTS, 361 U.S.
477, 497-498 (1960), CONGRESS HAS INVESTED NO AGENCY WITH EVEN
COLORABLE AUTHORITY TO PERFORM THIS FUNCTION.  THE VERY COMPLEXITY OF
THE DISTINCTIONS EXAMINED IN PART VII, SUPRA, IF NOTHING ELSE, PLAINLY
DEMONSTRATES THAT WE LACK THE EXPERTISE AND COMPETENCE TO UNDERTAKE
THIS TASK OURSELVES. 

MOREOVER, "FROM THE POINT OF VIEW OF INDUSTRIAL RELATIONS OUR
RAILROADS ARE LARGELY A THING APART.  . . . 'THE RAILROAD WORLD IS LIKE
A STATE WITHIN A STATE.'"  ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S.
711, 751 (1945) (FRANKFURTER, J., DISSENTING).  THUS, IF CONGRESS
SHOULD NOW FIND THAT ABUSES IN THE NATURE OF SECONDARY ACTIVITIES HAVE
ARISEN IN THE RAILROAD INDUSTRY, SEE SUPRA, AT 376-377, N. 10, IT MIGHT
WELL DECIDE-- AS IT DID WHEN IT CONSIDERED THE GARMENT AND CONSTRUCTION
INDUSTRIES, SEE NLRA SEC. 8(3)-- THAT THIS FIELD REQUIRES EXTRAORDINARY
TREATMENT OF SOME SORT.  CF., E.G., RAILROAD TRAINMEN V. ATLANTIC
C.L.R. CO., 362 F.2D 649, 654-655 (1966).  CERTAINLY, IT IS FOR THE
CONGRESS, AND NOT THE COURTS, TO STRIKE THE BALANCE "BETWEEN THE
UNCONTROLLED POWER OF MANAGEMENT AND LABOR TO FURTHER THEIR RESPECTIVE
INTERESTS."  CARPENTERS V. NLRB, 357 U.S. 93, 100 (1958); SEE WOODWORK
MANUFACTURERS V. NLRB, 386 U.S. 612 (1967); ID., AT 648-650 (SEPARATE
MEMORANDUM).  THE CONGRESS HAS NOT YET DONE SO. 

IN SHORT, WE HAVE BEEN FURNISHED BY CONGRESS NEITHER USABLE
STANDARDS NOR ACCESS TO ADMINISTRATIVE EXPERTISE IN A SITUATION WHERE
BOTH ARE REQUIRED.  IN THESE CIRCUMSTANCES THERE IS NO REALLY
SATISFACTORY JUDICIAL SOLUTION TO THE PROBLEM AT HAND.  HOWEVER, WE
CONCLUDE THAT THE LEAST UNSATISFACTORY ONE IS TO ALLOW PARTIES WHO HAVE
UNSUCCESSFULLY EXHAUSTED THE RAILWAY LABOR ACT'S PROCEDURES FOR
RESOLUTION OF A MAJOR DISPUTE TO EMPLOY THE FULL RANGE OF WHATEVER
PEACEFUL ECONOMIC POWER THEY CAN MUSTER, SO LONG AS ITS USE CONFLICTS
WITH NO OTHER OBLIGATION IMPOSED BY FEDERAL LAW.  HENCE, UNTIL CONGRESS
ACTS, PICKETING-- WHETHER CHARACTERIZED AS PRIMARY OR SECONDARY-- MUST
BE DEEMED CONDUCT PROTECTED AGAINST STATE PROSCRIPTION.  /25/  CF.
ELECTRICAL WORKERS V. NLRB, 122 U.S.APP.D.C. 8, 9-10, 350 F.2D 791, 792
793 (1965) (DISSENTING OPINION); NLRB V. PETER CAILLER KOHLER SWISS
CHOCOLATES CO., 130 F.2D 503 (1942).  ANY OTHER SOLUTION-- APART FROM
THE REJECTED ONE OF HOLDING THAT NO CONDUCT IS PROTECTED-- WOULD
INVOLVE THE COURTS ONCE AGAIN IN A VENTURE FOR WHICH THEY ARE
INSTITUTIONALLY UNSUITED. 

THE JUDGMENT OF THE FLORIDA DISTRICT COURT OF APPEAL IS ACCORDINGLY

              REVERSED. 

/1/  SEE RAILWAY CLERKS V. FLORIDA E.C.R. CO., 384 U.S. 238 (1966);
RAILROAD TRAINMEN V. ATLANTIC C.L.R. CO., 362 F.2D 649, AFF'D, 385 U.S.
20 (1966); FLORIDA E.C.R. CO. V. RAILROAD TRAINMEN, 336 F.2D 172
(1964).  CF. LOCOMOTIVE ENGINEERS V. BALTIMORE & O.R. CO., 372 U.S. 284
(1963 ). 

/2/  44 STAT. 577, AS AMENDED, 45 U.S.C. 151 ET SEQ. 

/3/  SEE ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711, 722-725
(1945); FLORIDA E.C.R. CO. V. RAILROAD TRAINMEN, SUPRA, AT 178-179;
PART III, INFRA. 

/4/  PETITIONERS ARE THE BROTHERHOOD OF RAILROAD TRAINMEN, THE ORDER
OF RAILWAY CONDUCTORS AND BRAKEMEN, THE BROTHERHOOD OF LOCOMOTIVE
FIREMEN AND ENGINEMEN, AND SEVERAL UNION OFFICERS.  PETITIONERS CONTEND
THAT ONLY THE BRT AND ITS OFFICERS WERE RESPONSIBLE FOR THE PICKETING,
AND THAT THE INJUNCTION WAS IMPROPER AS TO THE OTHERS.  BECAUSE OF OUR
DISPOSITION OF THE CASE WE DO NOT REACH THIS QUESTION, AND WE TREAT
PETITIONERS JOINTLY, AS DID THE STATE COURTS. 

/5/  THE THREE OTHER ROADS ARE THE ATLANTIC COAST LINE RAILROAD CO.,
THE SEABOARD AIR LINE RAILROAD CO., AND THE SOUTHERN RAILWAY SYSTEM. 
EFFECTIVE JULY 1, 1967, COAST LINE AND SEABOARD MERGED.  SEE FLORIDA
E.C.R. CO. V. UNITED STATES, 259 F.SUPP.  993 (1966), AFF'D, 386 U.S.
544 (1967). 

FOR A DISCUSSION OF ONE ASPECT OF THIS UNUSUAL JOINT VENTURE
AGREEMENT, SEE JACKSONVILLE TERMINAL CO. V. FLORIDA E.C.R. CO., 363
F.2D 216 (1966). 

/6/  THE SIGNS READ:

"FELLOW RAILROAD MEN

        DO NOT CROSS OR ASSIST F.E.C.

        B. OF R.T.

        ON LAWFUL

STRIKE

        AGAINST F.E.C.

        PLEASE MAKE COMMON CAUSE WITH US IN

        MAJOR DISPUTE AGAINST F.E.C."  A UNION OFFICIAL DIRECTING
THE PICKETING TESTIFIED AT THE STATE HEARING THAT PICKET LINES AT THE
RAIL ENTRANCES WOULD HAVE BEEN TAKEN DOWN TO ALLOW MOVEMENTS
UNCONNECTED WITH FEC TO PASS. 

/7/  FLA. STAT. SECS. 351.12, 351.14-351.17, 351.19 (1965).  THESE
ARE DUTIES, IN ESSENCE, TO TRANSPORT AND TRANSFER FREIGHT AND FREIGHT
CARS. 

/8/  SEVEN PERCENT OF THE BRT, 7% OF THE BLF&E, AND 2% OF THE ORC&B
ARE "EMPLOYEES OF EMPLOYERS WHO ARE NOT SUBJECT TO THE RAILWAY LABOR
ACT."  JOINT APP. 93-94. 

/9/  IN MARINE ENGINEERS, A STATE COURT ENJOINED PICKETING BY THE
MARINE ENGINEERS BENEFICIAL ASSOCIATION, HAVING FOUND THAT THE UNION
REPRESENTED ONLY "SUPERVISORS," WHO ARE NOT "EMPLOYEES" SUBJECT TO THE
NLRA.  NLRA SEC. 2(3).  WE NOTED THAT DECISIONS OF THE NLRB AND LOWER
COURTS HAD HELD THE MEBA SUBJECT TO THE ACT UNDER SOME CIRCUMSTANCES,
AND WE REVERSED, HOLDING THAT IN ANY "DOUBTFUL CASE," 370 U.S., AT 182,
WHERE THERE EXISTED AN "ARGUABLE POSSIBILITY OF LABOR BOARD
JURISDICTION," ID., AT 184, THE MATTER MUST FIRST BE SUBMITTED TO THE
NLRB. 

/10/  IN THE DEBATES PRECEDING ENACTMENT OF THE TAFT-HARTLEY
AMENDMENTS, 61 STAT. 141, 29 U.S.C. 158(B), SENATOR TAFT RESPONDED AS
FOLLOWS TO THE CRITICISM THAT IT WAS INEQUITABLE TO ALLOW RAILROAD
EMPLOYEES TO ENGAGE IN CONDUCT FORBIDDEN OTHERS BY SEC. 8(B)(4) OF THE
NLRA: "I WANT TO POINT OUT THAT RAILWAY LABOR HAS NEVER BEEN COVERED BY
THE WAGNER ACT; IT HAS ALWAYS BEEN COVERED BY THE RAILWAY LABOR ACT,
WHICH PROVIDES A SOMEWHAT DIFFERENT PROCEDURE.  WE SAW NO REASON TO
CHANGE THAT SITUATION, BECAUSE THERE WERE NO ABUSES WHICH HAD ARISEN IN
CONNECTION WITH THE OPERATION OF THE RAILWAY LABOR ACT."  93 CONG.REC. 
6498, 2 LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT,
1947, P. 1571.  IN 1959, SEC. 8(B)(4) WAS AMENDED TO EXPAND THE CLASS
OF PERSONS PROTECTED AGAINST SECONDARY PRESSURES.  73 STAT. 542; SEE
STEELWORKERS V. NLRB, 376 U.S. 492, 500-501 (1964).  HOWEVER, THE
AMENDMENT DID NOT EXPAND THE SCOPE OF "EMPLOYEES" OR "LABOR
ORGANIZATIONS" WHOM THE ACT FORBADE TO ENGAGE IN SUCH CONDUCT. 

/11/  SEE GENERALLY L. LECHT, EXPERIENCE UNDER RAILWAY LABOR
LEGISLATION 38, 46-47, 197-198, 221-222, 230-237 (1955); USE OF FEDERAL
POWER IN SETTLEMENT OF RAILWAY LABOR DISPUTES, H.R. DOC. NO. 285, 67TH
CONG., 2D SESS., 76-85 (1922). 

/12/  SEE 67 CONG. REC. 4508, 4512-4513, 4517-4518, 4569, 4582, 4648,
4702, 8814, 9205-9206 (1926). 

/13/  E.G., ACT OF AUG. 28, 1963, PUB. L. 88-108, 77 STAT. 132.  THE
SENATE REPORT STATED:  "THIS PROPOSAL IS NOT AND CANNOT CONCEIVABLY BE
CONSIDERED AS A PRECEDENT FOR THE RAILROAD INDUSTRY . . . . IT IS WHAT
IT PURPORTS TO BE-- A ONE-SHOT SOLUTION THROUGH LEGISLATIVE MEANS TO A
SITUATION WHICH IMPERILED BEYOND QUESTION THE ECONOMY AND SECURITY OF
THE ENTIRE NATION."  S. REP. NO. 459, 88TH CONG., 1ST SESS., 7 (1963). 
SEE GENERALLY 1 FEDERAL LEGISLATION TO END STRIKES:  A DOCUMENTARY
HISTORY, C. VI, SUBCOMMITTEE ON LABOR OF SENATE COMMITTEE ON LABOR AND
PUBLIC WELFARE, 90TH CONG., 1ST SESS. (COMM. PRINT 1967); 2 ID., CC. X,
XI; L. LECHT, EXPERIENCE UNDER RAILWAY LABOR LEGISLATION 176-177, 184
185, 195-196, 200-201, 206-207 (1955). 

/14/  CF., E.G., STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192
(1944).  SEE NOTE, IMPLYING CIVIL REMEDIES FROM FEDERAL REGULATORY .
STATUTES, 77 HARV.L.REV.  285 (1963). 

/15/  WHAT LITTLE RELEVANT LEGISLATIVE HISTORY WE HAVE FOUND,
HOWEVER, INDICATES THAT IN OPTING FOR THE VOLUNTARY SETTLEMENT OF
RAILWAY LABOR DISPUTES, CONGRESS INTENDED TO LIMIT STATE AUTHORITY TO
IMPOSE THE REJECTED COMPULSIONS.  SEE 67 CONG. REC. 4706-4707 (1926). 

/16/  AIR CARRIERS AND THEIR EMPLOYEES WERE MADE SUBJECT TO THE
RAILWAY LABOR ACT IN 1936.  49 STAT. 1189, 45 U.S.C. 181, 182. 

/17/  IN THE CONTEXT OF LABOR RELATIONS LAW, THIS WORD IS FRAUGHT
WITH AMBIGUITY.  "PROTECTED CONDUCT" MAY, FOR EXAMPLE, REFER TO
EMPLOYEE CONDUCT WHICH THE STATES MAY NOT PROHIBIT, SEE, E.G., WEBER V.
ANHEUSER-BUSCH, INC., 348 U.S. 468, 474 (1955), OR TO CONDUCT AGAINST
WHICH THE EMPLOYER MAY NOT RETALIATE, CF., E.G., NLRB V. TRUCK DRIVERS,
353 U.S. 87, 96 (1957).  THROUGHOUT THIS OPINION WE USE THE WORD IN THE
FORMER SENSE ONLY. 

/18/  THE QUESTION WHETHER THE NORRIS-LAGUARDIA ACT BARS STATE
COURTS FROM ISSUING LABOR INJUNCTIONS WAS ARGUED IN A SOMEWHAT
DIFFERENT CONTEXT, BUT NOT DECIDED, IN AVCO CORP. V. MACHINISTS, 390
U.S. 557 (1968).  IT IS ARGUED HERE, BUT AGAIN WE FIND NO NEED TO REACH
IT.

/19/  FOR EXAMPLE, IN REFERRING TO DECISIONS HOLDING STATE LAWS PRE
EMPTED BY THE NLRA, CARE MUST BE TAKEN TO DISTINGUISH PRE-EMPTION BASED
ON FEDERAL PROTECTION OF THE CONDUCT IN QUESTION, E.G., TEAMSTERS V.
OLIVER, 358 U.S. 283 (1959); BUS EMPLOYEES V. WISCONSIN EMPLOYMENT
RELATIONS BOARD, 340 U.S. 383 (1951), FROM THAT BASED PREDOMINANTLY ON
THE PRIMARY JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD, E.G.,
SAN DIEGO UNIONS V. GARMON, 359 U.S. 236 (1959), ALTHOUGH THE TWO ARE
OFTEN NOT EASILY SEPARABLE.  SEE NLRB V. INSURANCE AGENTS, 361 U.S.
477, 493-494, N. 23 (1960).  THERE IS, OF COURSE, NO ADMINISTRATIVE
AGENCY EQUIVALENT TO THE NLRB WITH JURISDICTION OVER RAILWAY LABOR
DISPUTES. 

/20/  CF. SEC. 2 FOURTH, 48 STAT. 1187, 45 U.S.C. 152 FOURTH:
"EMPLOYEES SHALL HAVE THE RIGHT TO ORGANIZE AND BARGAIN COLLECTIVELY
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING."  IT HAS BEEN SUGGESTED
THAT THIS PROVISION IS "COMPARABLE" TO SEC. 7 OF THE NLRA, WHICH GRANTS
EMPLOYEES THE RIGHT TO "SELF-ORGANIZATION" AND THE RIGHT TO ENGAGE IN
"CONCERTED ACTIVITIES . . . , " AND WHICH, EVEN APART FROM SEC. 13,
PROTECTS THE RIGHT TO STRIKE, SEE, E.G., BUS EMPLOYEES V. WISCONSIN
EMPLOYMENT RELATIONS BOARD, 340 U.S. 383, 389 (1951).  MEMORANDUM OF
MAR. 11, 1935, PREPARED FOR SENATE COMMITTEE ON EDUCATION AND LABOR
COMPARING S. 1958 (74TH CONG.) WITH S. 2926 (73D CONG.), 1 LEGISLATIVE
HISTORY OF THE NATIONAL LABOR RELATIONS ACT, 1935, AT 1350-1351. 
HOWEVER, SEC. 2 FOURTH OF THE RLA, ADDED IN 1934, WAS DESIGNED
PRIMARILY, IF NOT EXCLUSIVELY, TO PROHIBIT COERCIVE EMPLOYER
PRACTICES.  SEE H.R. REP. NO. 1944, 73D CONG., 2D SESS., 2 (1934); L.
LECHT, EXPERIENCE UNDER RAILWAY LABOR LEGISLATION, C. V. (1955).  THE
EXPLICIT LANGUAGE OF SEC. 7 OF THE NLRA WAS PROBABLY RESPONSIVE TO THE
DIFFERENCE BETWEEN THE "EMBRYO ORGANIZATIONS IN THE INDUSTRIES COVERED
BY" THE NLRA, AND THE ALREADY "STRONGLY ORGANIZED" RAILWAY UNIONS. 
MEMORANDUM SUPRA, 1 LEGISLATIVE HISTORY, SUPRA, AT 1329.  FOR AN
INDICATION OF THE ECONOMIC POWER OF RAILWAY LABOR ORGANIZATIONS PRIOR
TO ENACTMENT OF THE RAILWAY LABOR ACT, SEE G. EGGERT, RAILROAD LABOR
DISPUTES (1967). 

/21/  PETITIONERS CONTEND THAT SENATOR TAFT'S STATEMENT, DURING THE
CONGRESSIONAL DEBATES, THAT SEC. 8(B)(4) DID NOT APPLY TO PERSONS
SUBJECT TO THE RAILWAY LABOR ACT, SUPRA, N. 10, NECESSARILY ENTAILS
THAT THE RAILWAY LABOR ACT PROTECTS SECONDARY CONDUCT.  BUT, EXCEPT
UNDER UNUSUAL CIRCUMSTANCES, THE NLRA IN ITS ENTIRETY IS INAPPLICABLE
TO SUCH PERSONS.  PART II, SUPRA.  IT WOULD BE INAPPROPRIATE TO GIVE
ANY WEIGHT TO THESE ISOLATED PASSING REMARKS ABOUT ONE STATUTORY SCHEME
MADE IN THE CONTEXT OF AMENDING AN ENTIRELY DIFFERENT ONE. 

/22/  SECTION 8(B)(4) "DOES NOT SPEAK GENERALLY OF SECONDARY
BOYCOTTS . . . (BUT) DESCRIBES AND CONDEMNS SPECIFIC UNION CONDUCT
DIRECTED TO SPECIFIC OBJECTIVES."  CARPENTERS V. NLRB, SUPRA, AT 98. 

/23/  CF. ALSO RAILROAD TRAINMEN V. ATLANTIC C.L.R. CO., 362 F.2D
649, 654-655 (1966); NLRB V. ELECTRICAL WORKERS, 228 F.2D 553 (1955);
DOUDS V. ARCHITECTS, 75 F.SUPP.  672 (1948). 

/24/  THE RIGHT TO STRIKE FINDS SUPPORT, NOT ONLY IN ANALOGY TO THE
NLRA, BUT IN THE HISTORY OF, AND DECISIONS UNDER, THE RAILWAY LABOR ACT
ITSELF.  SUPRA, AT 379-380, 384. 

/25/  OUR HOLDING IS, OF COURSE, LIMITED TO DISPUTES SUBJECT TO THE
RAILWAY LABOR ACT, AND IN NO WAY DETRACTS FROM THE POWER OF THE STATES
TO REGULATE LABOR CONDUCT NOT OTHERWISE GOVERNED BY A PARAMOUNT FEDERAL
SCHEME.  CF. GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490 (1949). 

MR. JUSTICE FORTAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
STEWART CONCUR, DISSENTING. 

RESPONDENT PROVIDES TERMINAL FACILITIES FOR FOUR RAILROADS AT
JACKSONVILLE, FLORIDA.  PETITIONERS HAVE A LONG-STANDING LABOR DISPUTE
WITH ONE OF THOSE CARRIERS, FLORIDA EAST COAST.  THEY HAVE ESTABLISHED
A PICKET LINE, MANNED BY EMPLOYEES OF FEC BUT ESTABLISHED AT ALL
ENTRANCES AND EXITS TO THE TERMINAL AND NOT RESTRICTED TO THE SINGLE
ENTRANCE DESIGNATED /1/  FOR USE BY FEC EMPLOYEES.  THE CONCEDED
PURPOSE OF THE PICKETING WAS TO CAUSE RESPONDENT AND THE OTHER THREE
CARRIERS NOT TO INTERCHANGE TRAFFIC WITH FEC. 

PETITIONER BROTHERHOOD OF RAILROAD TRAINMEN, HOWEVER, HAS NO LABOR
DISPUTE WITH ANY CARRIER USING THE TERMINAL EXCEPT FEC.  THE FLORIDA
COURT FOUND THAT THE PATTERN OF PICKETING BEING USED "WOULD RESULT IN A
VIRTUAL CESSATION OF ACTIVITIES NOT ONLY OF THE TERMINAL COMPANY BUT
ALSO OF NUMEROUS INDUSTRIES IN DUVAL COUNTY AND . . . FLORIDA." 

THE ORDER ENTERED /2/  BARRED ALL PICKETING BY FEC EMPLOYEES EXCEPT
AT THE DESIGNATED SINGLE ENTRANCE.  THE TRIAL COURT RELIED, INTER ALIA,
ON THE GROUND THAT "THE PAST AND THREATENED PICKETING SEEKS TO COERCE
PLAINTIFF (RESPONDENT) INTO EMBARGOING THE FEC IN VIOLATION OF THE
RESTRAINT OF TRADE LAWS OF THIS STATE."  THE LAWS REFERRED TO ARE FLA.
STAT. SEC. 542.01 ET SEQ. WHICH SET UP A BROAD REGULATORY SCHEME
BANNING "A COMBINATION OF CAPITAL, SKILL OR ACTS BY TWO OR MORE
PERSONS" TO "CREATE OR CARRY OUT RESTRICTIONS IN TRADE OR COMMERCE." 
THE DISTRICT COURT OF APPEAL, IN AFFIRMING THE TRIAL COURT IN THE
PRESENT CASE, SAID THAT IT "EXERCISED A PROPER AUTHORITY IN ENJOINING A
VIOLATION OF A VALID STATE STATUTE."  201 SO.2D 253, 254. 

THE QUESTION THEREFORE IS WHETHER FLORIDA MAY BAN PICKETING /3/  IN
SUPPORT OF A SECONDARY BOYCOTT. 

CONGRESS COULD PRE-EMPT THIS FIELD OF PICKETING ANY RAIL CARRIER FOR
PURPOSES OF A SECONDARY BOYCOTT AS OUR RAIL CARRIERS AND THEIR LABOR
PROBLEMS ARE CONSPICUOUSLY WITHIN REACH OF THE COMMERCE CLAUSE. 
CONGRESS IN THE LABOR MANAGEMENT RELATIONS ACT OF 1947, 29 U.S.C. 141
ET SEQ. DID LEGISLATE ON SECONDARY BOYCOTTS.  /4/  29 U.S.C.
158(B)(4)(I)(B).  BUT IT EXPRESSLY EXCLUDED FROM THAT REGULATORY SCHEME
/5/  "ANY PERSON SUBJECT TO THE RAILWAY LABOR ACT,"  SEC. 152(2), AND
ANY INDIVIDUAL EMPLOYED BY SUCH PERSON, SEC. 152(3). 

WE ARE THEREFORE IN AN AREA WHERE CONGRESS HAS NOT LEGISLATED AND,
AS I SEE IT, THE CASE IS CONTROLLED BY GIBONEY V. EMPIRE STORAGE & ICE
CO., 336 U.S. 490. 

IN GIBONEY, MISSOURI APPLIED ITS ANTI-TRADE-RESTRAINT LAW TO ENJOIN
A UNION FROM PICKETING EMPLOYERS TO ENFORCE A SECONDARY BOYCOTT.  WE
STATED THAT THE BASIC ISSUE WAS "WHETHER MISSOURI OR A LABOR UNION HAS
PARAMOUNT CONSTITUTIONAL POWER TO REGULATE AND GOVERN THE MANNER IN
WHICH CERTAIN TRADE PRACTICES SHALL BE CARRIED ON" IN MISSOURI.  ID.,
AT 504.  A STATE'S POWER OVER SECONDARY BOYCOTTS WAS HELD TO BE
PARAMOUNT; AND THAT IS WHAT WE SHOULD HOLD TODAY, SINCE CONGRESS HAS
NOR PRE-EMPTED THE SUBJECT. 

IT IS SUGGESTED THAT THERE IS AN HIATUS WHICH THE COURT SHOULD
FILL.  TO DO SO, WE WOULD HAVE TO FILL IN LARGE GAPS BETWEEN THE
RAILWAY LABOR ACT, 45 U.S.C. 151 ET SEQ., AND MANY OTHER SPECIALIZED
ACTS OF CONGRESS THAT TOUCH ON PIECES OF THE PROBLEMS OF LABOR IN THE
RAILROAD FIELD.  ONCE THE REMEDIES PROVIDED IN THE RAILWAY LABOR ACT
ARE EXHAUSTED, FEDERAL ADMINISTRATIVE REMEDIES ARE AT AN END.  NO
AUTHORITY IS EMPOWERED TO SETTLE THE DISPUTE; NO COMPULSORY ARBITRATION
IS PROVIDED.  THE CONDITIONS OF WORK MAY BE AS BAD AS THE EMPLOYEES
SUFFER THEM TO BE AND MADE AS GOOD AS THEY CAN AGREE UPON THROUGH
BARGAINING.  WHEN THE VARIOUS PROCEDURES ESTABLISHED BY THE ACT ARE
EXHAUSTED, "BOTH PARTIES . . . ARE RELEGATED TO SELF-HELP IN ADJUSTING"
THE DISPUTE.  LOCOMOTIVE ENGINEERS V. BALTIMORE & O.R. CO., 372 U.S.
284, 291. 

LEGISLATING INTERSTITIALLY IS ONE THING; JUDICIAL INSERTION INTO OUR
FEDERAL RAILWAY LABOR LAW OF RULES GOVERNING SECONDARY BOYCOTTS IS
FORMULATION OF NATIONAL POLICY IN THE RAW.  WHETHER IT SHOULD BE DONE
AND, IF SO, HOW, ARE MATTERS FOR THE SENATE AND THE HOUSE. 

THE EFFORT OF THE COURT TO FIND SUPPORT FOR THIS SECONDARY BOYCOTT
IN FEDERAL LAW IS A MASTERFUL ENDEAVOR.  THE OPINION IS INDEED A
BRILLIANT BRIEF FOR A FEDERAL LAW TO SUPPORT THE STRUGGLE OF
PETITIONERS TO END THE UGLY CONFLICT.  THE DIFFICULTY IS THAT NO MATTER
HOW CAREFULLY FEDERAL LAW IS EXAMINED NO EXPRESS SANCTION FOR WHAT
PETITIONERS CAN DO CAN BE FOUND.  FEDERAL AUTHORITY FOR WHAT THEY DO
RESTS ON THE THINNEST OF INFERENCES AND YET THAT INFERENCE IS BROUGHT
UNDER THE SUPREMACY CLAUSE. 

ARTICLE VI OF THE CONSTITUTION STATES THAT:  "THIS CONSTITUTION, AND
THE LAWS OF THE UNITED STATES WHICH SHALL BE MADE IN PURSUANCE THEREOF
. . . SHALL BE THE SUPREME LAW OF THE LAND; AND THE JUDGES IN EVERY
STATE SHALL BE BOUND THEREBY . . . . " BUT ONE LOOKS IN VAIN FOR ANY
FEDERAL "LAW" THAT COLLIDES WITH STATE LAW OR THAT CAN BE SAID TO PRE
EMPT STATE LAW.  FEDERAL LAW SAYS THAT WHEN THE PARTIES EXHAUST THEIR
REMEDIES UNDER THE RAILWAY LABOR ACT THEY MAY RESORT TO "SELF-HELP"--
NOT A CONGRESSIONAL PHRASE BUT A JUDICIAL GLOSS PUT ON THE ACT.  ELGIN,
J. & E.R. CO. V. BURLEY, 325 U.S. 711, 725.  BUT IT IS STRONG MEDICINE
TO SAY THAT THEIR RIGHT TO "SELF-HELP" OVERRIDES STATE LAW.  CERTAINLY
IT DOES NOT WHEN VIOLENCE IS USED TO INJURE PEOPLE AND DESTROY
PROPERTY.  ALLEN-BRADLEY LOCAL V. WISCONSIN EMPLOYMENT RELATIONS BOARD,
315 U.S. 740.  FOR THEN THE STATES HAVE AN ARSENAL OF AUTHORITY TO DEAL
WITH THE SITUATION.  WHY IS THAT POWER GREATER THAN THE POWER TO
PROTECT THE ECONOMY OF THE AREA?  WE HAVE A FINDING THAT, IF THE
CONDUCT WHICH THE COURT AUTHORIZES CONTINUES, THERE WILL BE SERIOUS
INJURY TO "NUMEROUS INDUSTRIES IN DUVAL COUNTY"-- INDUSTRIES THAT HAVE
NO RESPONSIBILITY FOR THE LABOR DISPUTE. 

THE QUESTION, SAYS THE COURT, IS WHETHER "THE STATES COULD PROHIBIT
THE PARTIES FROM ENGAGING IN ANY SELF-HELP."  IF THAT IS TRUE, THEN THE
ACT'S SCHEME WOULD BE IMPAIRED.  BUT THAT IS NOT THE ISSUE.  IT IS
WHETHER THE STATE CAN PREVENT A SECONDARY BOYCOTT WHICH THREATENS TO
PARALYZE A WHOLE COMMUNITY.  IF A STATE CANNOT FILL THAT HIATUS IN A
FEDERAL SCHEME, THEN MUCH LAW WILL HAVE TO BE UNLEARNED. 

STATES' RIGHTS ARE OFTEN USED AS A CLOAK TO COVER UNCONSTITUTIONAL
ENCROACHMENTS SUCH AS THE MAINTENANCE OF SECOND-CLASS CITIZENSHIP FOR
NEGROES OR AMERICANS OF MEXICAN ANCESTRY.  BUT A STATE POLICY TO
CONFINE AN INDUSTRIAL DISPUTE TO THE PARTIES AND, IF POSSIBLE, NOT TO
LET IT PARALYZE THE ENTIRE COMMUNITY CANNOT BE PUT IN THAT CATEGORY. 

CONGRESS IN ADOPTING A FEDERAL REGULATION CAN MAKE IT EXCLUSIVE OF
ALL STATE REGULATION, IN WHICH EVENT ONE MAY NOT BE REQUIRED "BY A
STATE TO DO MORE OR ADDITIONAL THINGS OR CONFORM TO ADDED REGULATIONS,
EVEN THOUGH THEY IN NO WAY CONFLICTED WITH WHAT WAS DEMANDED OF HIM
UNDER THE FEDERAL ACT."  RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218,
236.  AND SEE CAMPBELL V. HUSSEY, 368 U.S., 297, 300-301.  BUT THAT
PRINCIPLE, THOUGH UNIFORMLY RECOGNIZED, HAS PROVOKED MUCH DISSENT IN
ITS APPLICATION, AS THE DISSENTS IN THE RICE AND CAMPBELL CASES
ILLUSTRATE. 

AS MR. JUSTICE BRANDEIS SAID IN NAPIER V. ATLANTIC COAST LINE, 272
U.S. 605, 611, "THE INTENTION OF CONGRESS TO EXCLUDE STATES FROM
EXERTING THEIR POLICE POWER MUST BE CLEARLY MANIFESTED."  AND THE
COURT, MINDFUL OF THE FORCE OF THE TENTH AMENDMENT AND THE PLACE OF THE
STATES IN OUR CONSTITUTIONAL SYSTEM, HAS RESOLVED CLOSE CASES IN FAVOR
OF A CONTINUING POWER ON THE PART OF THE STATES TO LEGISLATE IN THEIR
CUSTOMARY FIELDS AND THUS HAS PERMITTED STATE REGULATIONS TO MESH WITH
FEDERAL CONTROLS.  SEE FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S. 17;
TOWNSEND V. YEOMANS, 301 U.S. 441, 454; PENN DAIRIES V. MILK CONTROL
COMMISSION, 318 U.S. 216. 

EVEN HERE, THERE HAVE BEEN DISSENTS WHEN IT CAME TO PARTICULAR
APPLICATIONS OF THE PRINCIPLE TO THE FACTS OF A CASE.  BUT I VENTURE
THAT IN NO CASE PRIOR TO TODAY'S DECISION HAS A STATE BEEN BARRED FROM
LEGISLATING IN A FIELD WHICH IS NOT SPECIFICALLY TOUCHED BY THE FEDERAL
REGULATION AND WHICH REMAINS AFTER THE FEDERAL REMEDIES HAVE SPENT
THEMSELVES AND PROVED TO BE OF NO AVAIL. 

THE STATES SHOULD BE ALLOWED A FREE HAND IN LABOR CONTROVERSIES
EXCEPT AND UNLESS CONGRESS HAS ADOPTED A CONTRARY POLICY.  WE SEARCH IN
VAIN FOR ANY SUCH FEDERAL LAW IN THIS CONTEXT. 

I WOULD AFFIRM THE JUDGMENT. 

/1/  WHEN THE STRIKE STARTED ON JANUARY 23, 1963, RESPONDENT
DESIGNATED A SPECIAL GATE FOR THE EXCLUSIVE USE OF FEC EMPLOYEES WHO
REPORT TO WORK AT THE TERMINAL. 

THE STRIKE ORIGINALLY INVOLVED ONLY NONOPERATING EMPLOYEES OF FEC. 
BUT IN 1966 THE OPERATING UNIONS ALSO WENT ON STRIKE AGAINST FEC. 

/2/  WE WERE ASKED TO REVIEW A TEMPORARY INJUNCTION ISSUED BY THE
TRIAL COURT.  SEE 385 U.S. 935.  THE PERMANENT INJUNCTION, NOW HERE,
WAS AFFIRMED PER CURIAM BY THE DISTRICT COURT OF APPEAL, 201 SO.2D 253,
AND THE FLORIDA SUPREME COURT DISMISSED AN APPEAL AND DENIED
CERTIORARI. 

/3/  THE PICKETING WAS FIRST ENJOINED BY THE FEDERAL DISTRICT COURT
IN A PROCEEDING BROUGHT BY TWO CARRIERS (OTHER THAN FEC) AND THE
TERMINAL COMPANY.  THAT JUDGMENT WAS REVERSED BY THE COURT OF APPEALS
WHICH HELD THAT THE REQUIREMENTS OF THE NORRIS-LAGUARDIA ACT, 47 STAT.
70, 29 U.S.C. 101 ET SEQ. HAD NOT BEEN MET.  362 F.2D 649. 

WE AFFIRMED THE COURT OF APPEALS BY AN EQUALLY DIVIDED COURT.  385
U.S. 20. 

/4/  SEE, E.G., NLRB V. RICE MILLING CO., 341 U.S. 665; ELECTRICAL
WORKERS V. NLRB, 366 U.S. 667; STEELWORKERS V. NLRB, 376 U.S. 492. 

/5/  SEE S.REP.  NO. 105, 80TH CONG., 1ST SESS., 19; TEAMSTERS UNION
V. NEW YORK, N.H. & H.R. CO., 350 U.S. 155, 159-160. 

NEAL P. RUTLEDGE ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS LESTER P. SCHOENE. 

DENNIS G. LYONS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE PAUL A. PORTER AND DANIEL A. REZNECK. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE URGING REVERSAL. 

FRANCIS M. SHEA, RICHARD T. CONWAY, RALPH J. MOORE, JR., AND JAMES
A. WILCOX FILED A BRIEF FOR THE NATIONAL RAILWAY LABOR CONFERENCE AS
AMICUS CURIAE URGING AFFIRMANCE. 
..END :







IN RE HERNDON, 394 U.S. 399 


       IN RE HERNDON. 

        ON MOTION FOR ORDER TO SHOW CAUSE WHY JUDGE HERNDON SHOULD

           NOT BE HELD IN CONTEMPT. 

        NO. -- .  ARGUED JANUARY 21, 1969.-- DECIDED MARCH 25,

           1969. 


DECISION ON MOTION THAT THIS COURT INITIATE A CONTEMPT PROCEEDING
AGAINST GREENE COUNTY, ALA., PROBATE JUDGE FOR ALLEGEDLY DISOBEYING
THIS COURT'S ORDER IN HADNOTT V. AMOS, ANTE, P. 358, RESTORING THE
DISTRICT COURT'S TEMPORARY RESTRAINING ORDER, DEFERRED PENDING TIMELY
INITIATION AND COMPLETION OF PROCEEDINGS IN THE DISTRICT COURT TO
DETERMINE WHETHER THE JUDGE'S FAILURE TO PLACE CERTAIN CANDIDATES ON
THE BALLOT CONSTITUTED CONTEMPT OF THE DISTRICT COURT. 

PER CURIAM. 

THE APPEAL IN HADNOTT V. AMOS, ANTE, P. 358, DECIDED TODAY, WAS
ARGUED WITH THE MOTION FILED BY APPELLANTS ON NOVEMBER 19, 1968, "FOR
AN ORDER TO SHOW CAUSE WHY JUDGE HERNDON SHOULD NOT BE HELD IN CONTEMPT
AND FOR OTHER RELIEF."  393 U.S. 996. 

ON SEPTEMBER 18, 1968, THE THREE-JUDGE COURT ENTERED A TEMPORARY
RESTRAINING ORDER ENJOINING APPROPRIATE ALABAMA OFFICIALS FROM USING
ANY BALLOTS AT THE GENERAL ELECTION OF NOVEMBER 5, 1968, WHICH DID NOT
INCLUDE THE NAMES OF THE CANDIDATES OF THE NATIONAL DEMOCRATIC PARTY OF
ALABAMA (NDPA).  THIS ORDER WAS DISSOLVED ON OCTOBER 11, 1968, ONE
JUDGE DISSENTING.  295 F.SUPP.  1003; THE APPELLANTS SOUGHT INTERIM
RELIEF FROM THIS COURT PENDING APPEAL, AND ON OCTOBER 14, 1968, WE
ENTERED AN ORDER THAT:  "THE APPLICATION FOR RESTORATION OF TEMPORARY
RELIEF IS GRANTED PENDING ORAL ARGUMENT ON THE APPLICATION . . . . "
393 U.S. 815 (1968).  ORAL ARGUMENT WAS HEARD ON OCTOBER 18, AND ON
OCTOBER 19 WE ENTERED AN ORDER THAT:  "THE ORDER ENTERED ON OCTOBER 14,
1968, RESTORING TEMPORARY RELIEF IS CONTINUED PENDING ACTION UPON THE
JURISDICTIONAL STATEMENT WHICH HAS BEEN FILED."  393 U.S. 904. 
NEVERTHELESS, JUDGE HERNDON, WHO WAS RESPONSIBLE FOR THE PREPARATION OF
THE GREENE COUNTY BALLOT FOR LOCAL OFFICES, DID NOT PLACE THE NDPA
CANDIDATES FOR SUCH OFFICES ON THE BALLOT. 

WE CONCLUDE THAT DECISION ON THE MOTION SHOULD AWAIT TIMELY
INITIATION AND COMPLETION OF APPROPRIATE PROCEEDINGS IN THE DISTRICT
COURT TO DETERMINE WHETHER JUDGE HERNDON'S FAILURE TO PLACE NDPA
CANDIDATES ON THE BALLOT CONSTITUTED CONTEMPT OF THE ORDER OF SEPTEMBER
18 OF THE DISTRICT COURT.  DECISION ON THE MOTION IS THEREFORE
POSTPONED. 

     IT IS SO ORDERED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THIS IS A MOTION REQUESTING THAT WE INITIATE A PROCEEDING AGAINST
HERNDON, PROBATE JUDGE IN GREENE COUNTY, ALABAMA, FOR DISOBEDIENCE OF
OUR ORDER AS DESCRIBED IN NO. 647, HADNOTT V. AMOS, ANTE, P. 358,
DECIDED THIS DAY.  OUR ORDER, IF OBEYED, WOULD HAVE RESULTED IN THE
BLACK CANDIDATES, SPONSORED BY THE NATIONAL DEMOCRATIC PARTY OF ALABAMA
(NDPA), HAVING BEEN ON THE BALLOT FOR COUNTY OFFICES IN GREENE COUNTY
IN THE GENERAL ELECTION OF NOVEMBER 1968.  THEY WERE, IT IS ALLEGED,
LEFT OFF THE BALLOT DUE TO THE ACTIONS OF JUDGE HERNDON, AS RELATED IN
HADNOTT V. AMOS. 

THIS MOTION, FILED BY APPELLANTS IN NO. 647, STATES THEY ARE INFORMED
AND BELIEVE THAT JUDGE HERNDON'S FAILURE TO PLACE THESE NOMINEES ON THE
BALLOT WAS DONE "WILFULLY AND WITH ACTUAL KNOWLEDGE OF THE ORDER OF
THIS COURT."  JUDGE HERNDON FILED HIS RESPONSE TO THAT MOTION, IN WHICH
HE DENIED THAT THE OMISSION OF THE NDPA CANDIDATES FOR COUNTY OFFICE
WAS "WILFULLY OR CONTUMACIOUSLY DONE WITH ACTUAL KNOWLEDGE OF THE SAID
ORDERS OF THIS COURT." 

THIS MOTION WAS BRIEFED AND ARGUED WHEN NO. 647 WAS PRESENTED ON THE
MERITS. 

I HAVE STUDIED THE RECORD AND READ THE BRIEFS; AND AS PRESENTLY
ADVISED I THINK THERE IS PROBABLE CAUSE TO CONCLUDE THAT JUDGE HERNDON
KNOWINGLY AND PURPOSEFULLY EVADED OUR ORDER.  WHAT THE ULTIMATE
CONCLUSION WILL BE DEPENDS, OF COURSE, ON A FULL HEARING AT WHICH JUDGE
HERNDON RECEIVES THAT NOTICE AND THAT OPPORTUNITY TO BE HEARD WHICH IS
REQUIRED BY DUE PROCESS.  BUT IF WHAT APPEARS TO BE PROBABLE CAUSE
MATURES INTO FULL-FLEDGED FINDINGS, WE HAVE A FLAGRANT VIOLATION OF OUR
ORDER, WHICH INVOLVES A VITAL PROBLEM OF CIVIL RIGHTS, INVOLVING THE
COMMAND OF THE FIFTEENTH AMENDMENT, THAT EXTENDS THE BALLOT TO THE
BLACKS. 

IN A CASE OF FAR LESS CONSEQUENCE THE COURT, PROCEEDING BY CONTEMPT
ON AN INFORMATION FILED BY THE ATTORNEY GENERAL, UNITED STATES V.
SHIPP, 214 U.S. 386, 439 HELD A SHERIFF AND HIS DEPUTIES IN CONTEMPT
FOR SILENT COOPERATION WITH A MOB IN HANGING A PRISONER WHOSE CASE WAS
BEFORE THIS COURT.  THAT SHERIFF ACTED BY MERELY TURNING HIS BACK AND
LETTING THE MOB RUN WILD.  IN THE PRESENT CASE, IF THE FACTS ALLEGED
WERE PROVED, JUDGE HERNDON'S AFFIRMATIVE ACTS UNLAWFULLY KEPT THE NDPA
CANDIDATES OFF THE BALLOT. 

RULE 42(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE GOVERNS
CONTEMPT IN THE PRESENCE OF THE COURT.  RULE 42(B) COVERS THE CONTEMPT
ALLEGED HERE, VIZ., DISRESPECT OR VIOLATION OF THIS COURT'S ORDER. 
RULE 42(B) PROVIDES: 

     "A CRIMINAL CONTEMPT EXCEPT AS PROVIDED IN SUBDIVISION (A) OF

  THIS RULE SHALL BE PROSECUTED ON NOTICE.  THE NOTICE SHALL STATE

  THE TIME AND PLACE OF HEARING, ALLOWING A REASONABLE TIME FOR THE

  PREPARATION OF THE DEFENSE, AND SHALL STATE THE ESSENTIAL FACTS

  CONSTITUTING THE CRIMINAL CONTEMPT CHARGED AND DESCRIBE IT AS

  SUCH.  THE NOTICE SHALL BE GIVEN ORALLY BY THE JUDGE IN OPEN

COURT IN THE PRESENCE OF THE DEFENDANT OR, ON APPLICATION OF THE

  UNITED STATES ATTORNEY OR OF AN ATTORNEY APPOINTED BY THE COURT

  FOR THAT PURPOSE, BY AN ORDER TO SHOW CAUSE OR AN ORDER OF

  ARREST.  THE DEFENDANT IS ENTITLED TO A TRIAL BY JURY IN ANY CASE

  IN WHICH AN ACT OF CONGRESS SO PROVIDES.  HE IS ENTITLED TO

  ADMISSION TO BAIL AS PROVIDED IN THESE RULES.  IF THE CONTEMPT

  CHARGED INVOLVES DISRESPECT TO OR CRITICISM OF A JUDGE, THAT

  JUDGE IS DISQUALIFIED FROM PRESIDING AT THE TRIAL OR HEARING

  EXCEPT WITH THE DEFENDANT'S CONSENT.  UPON A VERDICT OR FINDING

  OF GUILT THE COURT SHALL ENTER AN ORDER FIXING THE PUNISHMENT." 

I WOULD ISSUE THE NOTICE PRESCRIBED BY RULE 42(B), DESIGNATE AN
ATTORNEY TO REPRESENT THE COURT, APPOINT A MASTER, AND GET ON WITH THE
HEARINGS. 

RESERVATION OF ACTION ON THE MOTION IMPLICATES THE DOUBLE JEOPARDY
CLAUSE.  SUCCESSIVE FEDERAL PROSECUTIONS OF THE SAME PERSON BASED ON
THE SAME ACTS ARE PROHIBITED BY THE FIFTH AMENDMENT.  /1/  SEE UNITED
STATES V. LANZA, 260 U.S. 377, 382; ABBATE V. UNITED STATES, 359 U.S.
187, 197 (OPINION OF BRENNAN, J.).  IT WAS HELD IN PEREIRA V. UNITED
STATES, 347 U.S. 1, 9 THAT: 

"A DEFENDANT MAY BE CONVICTED OF (TWO OFFENSES) EVEN THOUGH THE
CHARGES ARISE FROM A SINGLE ACT OR SERIES OF ACTS, SO LONG AS EACH
REQUIRES THE PROOF OF A FACT NOT ESSENTIAL TO THE OTHER." 

IN THE INSTANT CASE, HOWEVER, IT IS LIKELY THAT THE FACTS UNDERLYING
BOTH CONTEMPT CHARGES WILL BE IDENTICAL.  IN FACT, IT MAY HAVE BEEN
IMPOSSIBLE FOR JUDGE HERNDON TO HAVE VIOLATED ONE COURT ORDER WITHOUT
VIOLATING THE OTHER.  /2/ 

/1/  "OUR MINDS REBEL AGAINST PERMITTING THE SAME SOVEREIGNTY TO
PUNISH AN ACCUSED TWICE FOR THE SAME OFFENSE."  FRANCIS V. RESWEBER,
329 U.S. 459, 462 (OPINION OF REED, J.). 

/2/  "THE CONSTITUTIONAL SAFEGUARD (AGAINST DOUBLE JEOPARDY) APPLIES
. . . (WHERE) A PERSON HAS BEEN TRIED AND CONVICTED OF A CRIME AND IT
IS SOUGHT TO PROSECUTE HIM AGAIN FOR THE SAME OR AN INCLUDED OFFENSE;
(WHERE) A PERSON HAS BEEN CONVICTED AND SENTENCED AND AN ATTEMPT IS
MADE TO INCREASE THE SENTENCE; (AND WHERE) A PERSON HAS BEEN ACQUITTED
AFTER A TRIAL ON THE MERITS AND AN ENDEAVOR IS MADE TO PROSECUTE HIM
AGAIN FOR THE SAME OR AN INCLUDED OFFENSE."  UNITED STATES V. WHITLOW,
110 F.SUPP.  871, 872 (D.C.D.C. 1953). 

CHARLES MORGAN, JR., ARGUED THE CAUSE FOR MOVANTS.  WITH HIM ON THE
BRIEF WERE REBER F. BOULT, JR., ORZELL BILLINGSLEY, JR., ROBERT P.
SCHWENN, MELVIN L. WULF, AND ELEANOR HOLMES NORTON. 

PERRY HUBBARD ARGUED THE CAUSE FOR HERNDON.  WITH HIM ON THE BRIEF
WAS GEORGE A. LEMAISTRE. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL POLLAK, NATHAN LEWIS, AND FRANK M.
DUNBAUGH. 
..END :



KAUFMAN V. UNITED STATES, 394 U.S. 217 


       KAUFMAN V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 53.  ARGUED NOVEMBER 19, 1968.-- DECIDED MARCH 24,

           1969. 


PETITIONER WAS TRIED AND CONVICTED OF A FEDERAL CRIME.  HIS ONLY
DEFENSE WAS INSANITY.  AFTER HIS CONVICTION WAS UPHELD ON APPEAL,
PETITIONER SOUGHT POST-CONVICTION RELIEF UNDER 28 U.S.C. 2255, AND
INCLUDED A CLAIM THAT THE FINDING OF SANITY WAS BASED UPON THE IMPROPER
ADMISSION OF ILLEGALLY SEIZED EVIDENCE.  THE DISTRICT COURT AFTER AN
EVIDENTIARY HEARING DENIED RELIEF.  PETITIONER'S APPLICATIONS TO THE
DISTRICT COURT AND THE COURT OF APPEALS FOR LEAVE TO APPEAL IN FORMA
PAUPERIS WERE DENIED, BOTH COURTS ADHERING TO THE VIEW FOLLOWED BY THE
COURT OF APPEALS THAT UNLAWFUL SEARCH-AND-SEIZURE CLAIMS "ARE NOT
PROPER MATTERS TO BE PRESENTED BY A MOTION TO VACATE SENTENCE UNDER
SEC. 2255 BUT CAN ONLY BE PROPERLY PRESENTED BY APPEAL FROM THE
CONVICTION."  HELD:  A CLAIM OF UNCONSTITUTIONAL SEARCH AND SEIZURE IS
COGNIZABLE IN A PROCEEDING UNDER 28 U.S.C. 2255.  PP. 221-231. 

(A) UNCONSTITUTIONAL RESTRAINTS "MAY BE CHALLENGED ON FEDERAL HABEAS
CORPUS EVEN THOUGH IMPOSED PURSUANT TO THE CONVICTION OF A FEDERAL
COURT OF COMPETENT JURISDICTION," FAY V. NOIA, 372 U.S. 391, 409
(1963), AND THE SAME PRINCIPLE APPLIES IN A PROCEEDING UNDER SEC 2255,
WHICH REVISED THE POST-CONVICTION PROCEDURE FOR FEDERAL PRISONERS BUT
DID NOT REDUCE THE SCOPE OF HABEAS CORPUS RELIEF.  PP. 221-222. 

(B) POST-CONVICTION RELIEF FOR PRISONERS' CONSTITUTIONAL CLAIMS IS
NOT LIMITED BY THE RULE THAT COLLATERAL REVIEW IS NOT AVAILABLE TO
CORRECT ERRORS OF LAW.  P. 223. 

(C) FEDERAL POST-CONVICTION RELIEF IS AVAILABLE TO BOTH STATE AND
FEDERAL PRISONERS TO PROTECT CONSTITUTIONAL RIGHTS RELATING TO THE
CRIMINAL TRIAL PROCESS (INCLUDING THE RIGHT OF A DEFENDANT NOT TO HAVE
UNCONSTITUTIONALLY OBTAINED EVIDENCE ADMITTED AGAINST HIM AT TRIAL),
AND THE CIRCUMSTANCES UNDER WHICH A FEDERAL COURT MUST REVIEW
CONSTITUTIONAL CLAIMS OF FEDERAL PRISONERS IN A SEC. 2255 PROCEEDING
ARE THE SAME AS THOSE REQUIRING HABEAS CORPUS REVIEW OF CONSTITUTIONAL
CLAIMS OF STATE PRISONERS, SEE TOWNSEND V. SAIN, 372 U.S. 293, 313
(1963), EXCEPT THAT A SEC. 2255 COURT NEED NOT BE CONCERNED WITH THE
ADEQUACY OF THE UNDERLYING FEDERAL RULES OF PROCEDURE.  PP. 225-227. 

(D) CONSIDERATIONS OF FINALITY OF LITIGATION HAVE NO GREATER WEIGHT
WITH RESPECT TO FEDERAL PRISONERS SEEKING SEC. 2255 RELIEF THAN WITH
RESPECT TO STATE PRISONERS SEEKING FEDERAL HABEAS CORPUS RELIEF.  P.
228. 

(E) PETITIONER'S INSANITY DEFENSE, LIKE ANY OTHER DEFENSE, CANNOT BE
PREJUDICED BY THE ADMISSION OF ILLEGALLY SEIZED EVIDENCE.  P. 230. 

REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER THE CLAIM OF A FEDERAL PRISONER THAT HE
WAS CONVICTED ON EVIDENCE OBTAINED IN AN UNCONSTITUTIONAL SEARCH AND
SEIZURE IS COGNIZABLE IN A POST-CONVICTION PROCEEDING UNDER 28 U.S.C.
2255.  /1/ 

PETITIONER WAS TRIED AND CONVICTED IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI ON CHARGES OF ARMED ROBBERY OF A FEDERALLY
INSURED SAVINGS AND LOAN ASSOCIATION.  AT TRIAL, PETITIONER'S ONLY
DEFENSE WAS INSANITY.  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT, ON
PETITIONER'S DIRECT APPEAL, AFFIRMED THE CONVICTION.  KAUFMAN V. UNITED
STATES, 350 F.2D 408 (1965). 

PETITIONER THAN FILED THIS POST-CONVICTION PROCEEDING UNDER SEC.
2255 AND INCLUDED A CLAIM THAT THE FINDING OF SANITY WAS BASED UPON THE
IMPROPER ADMISSION OF UNLAWFULLY SEIZED EVIDENCE.  /2/  AFTER AN
EVIDENTIARY HEARING, THE DISTRICT JUDGE, WHO HAD ALSO PRESIDED AT
PETITIONER'S TRIAL, DENIED RELIEF WITH A WRITTEN OPINION.  AS RESPECTS
THE CLAIM OF UNLAWFUL SEARCH AND SEIZURE, THE OPINION STATED THAT:
"THE RECORD DOES NOT SUBSTANTIATE THIS CLAIM.  IN ANY EVENT, THIS
MATTER WAS NOT ASSIGNED AS ERROR ON KAUFMAN'S APPEAL FROM CONVICTION
AND IS NOT AVAILABLE AS A GROUND FOR COLLATERAL ATTACK ON THE INSTANT
SEC. 2255 MOTION."  268 F.SUPP.  484, 487 (1967).  PETITIONER'S
APPLICATIONS TO THE DISTRICT COURT AND THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT FOR LEAVE TO APPEAL IN FORMA PAUPERIS WERE DENIED. 

WE TREAT THE ACTIONS OF THE DISTRICT COURT AND THE COURT OF APPEALS
AS GROUNDED ON THE VIEW CONSISTENTLY FOLLOWED BY THE COURT OF APPEALS
THAT CLAIMS OF UNLAWFUL SEARCH AND SEIZURE "ARE NOT PROPER MATTERS TO
BE PRESENTED BY A MOTION TO VACATE SENTENCE UNDER SEC. 2255 BUT CAN
ONLY BE PROPERLY PRESENTED BY APPEAL FROM THE CONVICTION."  OTHER
COURTS OF APPEALS HAVE INDICATED A CONTRARY VIEW.  IN LIGHT OF THE
IMPORTANCE OF THE ISSUE IN THE ADMINISTRATION OF SEC. 2255 WE GRANTED
CERTIORARI.  390 U.S. 1002 (1968).  WE REVERSE. 

THE AUTHORITY OF THE FEDERAL COURTS TO ISSUE THE WRIT OF HABEAS CORPUS
WAS INCORPORATED IN THE VERY FIRST GRANT OF FEDERAL COURT JURISDICTION
MADE BY THE JUDICIARY ACT OF 1789, C. 20 SEC. 14, 1 STAT. 81, WITH THE
LIMITING PROVISION THAT "WRITS OF HABEAS CORPUS SHALL IN NO CASE EXTEND
TO PRISONERS IN GAOL, UNLESS WHERE THEY ARE IN CUSTODY, UNDER OR BY
COLOUR OF THE AUTHORITY OF THE UNITED STATES . . . "  COMMON-LAW
PRINCIPLES INITIALLY DETERMINED THE SCOPE OF THE WRIT.  EX PARTE
BOLLMAN, 4 CRANCH 75, 93-94 (1807).  IN 1867, HOWEVER, THE WRIT WAS
EXTENDED TO STATE PRISONERS, AND ITS SCOPE WAS EXPANDED TO AUTHORIZE
RELIEF, BOTH AS TO FEDERAL AND STATE PRISONERS, IN "ALL CASES WHERE ANY
PERSON MAY BE RESTRAINED OF HIS OR HER LIBERTY IN VIOLATION OF THE
CONSTITUTION, OR OF ANY TREATY OR LAW OF THE UNITED STATES . . . "  ACT
OF FEBRUARY 5, 1867, C. 28.  SEC.  1, 14 STAT. 385. 

SEEK SUCH RELIEF BUT DID NOT IN ANY RESPECT CUT BACK THE SCOPE OF THE
WRIT.  THE SECTION WAS INCLUDED IN THE 1948 REVISION OF THE JUDICIAL
CODE "AT THE INSTANCE OF THE JUDICIAL CONFERENCE (OF THE UNITED STATES)
TO MEET PRACTICAL DIFFICULTIES THAT HAD ARISEN IN ADMINISTERING THE
HABEAS CORPUS JURISDICTION OF THE FEDERAL COURTS.  NOWHERE IN THE
HISTORY OF SECTION 2255 DO WE FIND ANY PURPOSE TO IMPINGE UPON
PRISONERS' RIGHTS OF COLLATERAL ATTACK UPON THEIR CONVICTIONS.  ON THE
CONTRARY, THE SOLE PURPOSE WAS TO MINIMIZE THE DIFFICULTIES ENCOUNTERED
IN HABEAS CORPUS HEARINGS BY AFFORDING THE SAME RIGHTS IN ANOTHER AND
MORE CONVENIENT FORUM,"  UNTIED STATES V. HAYMAN, 342 U.S. 205, 219
(1952); /5/  "THE LEGISLATION WAS INTENDED SIMPLY TO PROVIDE IN THE
SENTENCING COURT A REMEDY EXACTLY COMMENSURATE WITH THAT WHICH HAD
PREVIOUSLY BEEN AVAILABLE BY HABEAS CORPUS IN THE COURT OF THE DISTRICT
WHERE THE PRISONER WAS CONFINED.  HILL V. UNITED STATES, 368 U.S. 424,
427 (1962).  THUS, WE MAY REFER TO OUR DECISIONS RESPECTING THE
AVAILABILITY OF THE FEDERAL HABEAS REMEDY IN DECIDING THE QUESTION
PRESENTED IN THIS CASE. 

WE NOTED IN FAY V. NOIA, 372 U.S. 391, 409 (1963) THAT "(THE COURSE
OF DECISIONS OF THIS COURT . . . MAKES PLAIN THAT RESTRAINTS CONTRARY
TO OUR FUNDAMENTAL LAW, THE CONSTITUTION, MAY BE CHALLENGED ON FEDERAL
HABEAS EVEN THOUGH IMPOSED PURSUANT TO THE CONVICTION OF A FEDERAL
COURT OF COMPETENT JURISDICTION."  /6/  WE HAVE GIVEN THE SAME
RECOGNITION TO CONSTITUTIONAL CLAIMS IN SEC. 2255 PROCEEDINGS.  SEE,
E.G., UNITED STATES V. HAYMAN, SUPRA; SANDERS V. UNITED STATES, 373
U.S. 1 (1963); JORDAN V. UNITED STATES, 352 U.S. 904 (1956).  THE
COURTS OF APPEALS WHICH HAVE DENIED COGNIZANCE UNDER SEC. 2255 TO
UNCONSTITUTIONAL SEARCH-AND-SEIZURE CLAIMS HAVE NOT GENERALLY SUPPLIED
REASONS SUPPORTING THEIR APPARENT DEPARTURE FROM THIS COURSE OF OUR
DECISIONS.  RATHER, THESE COURTS HAVE MADE THE BALD STATEMENT,
VARIOUSLY EXPRESSED, THAT A MOTION UNDER SEC. 2255 CANNOT BE USED IN
LIEU OF AN APPEAL.  /7/  IT IS TRUE THAT IN SUNAL V. LARGE, 332 U.S.
174, 179 (1947), WE HELD THAT "THE WRIT IS NOT DESIGNED FOR COLLATERAL
REVIEW OF ERRORS OF LAW COMMITTED BY THE TRIAL COURT-- THE EXISTENCE OF
ANY EVIDENCE TO SUPPORT THE CONVICTION, IRREGULARITIES IN THE GRAND
JURY PROCEDURE, DEPARTURE FROM A STATUTORY GRANT OF TIME IN WHICH TO
PREPARE FOR TRIAL, AND OTHER ERRORS IN TRIAL PROCEDURE WHICH DO NOT
CROSS THE JURISDICTIONAL LINE."  BUT WE THERE RECOGNIZED THAT FEDERAL
HABEAS RELIEF FOR CONSTITUTIONAL CLAIMS ASSERTED BY FEDERAL PRISONERS
IS NOT LIMITED BY THAT RULE.  332 U.S.,AT 182; SEE ALSO HILL V. UNITED
STATES, SUPRA, AT 428.  LATER, IN TOWNSEND V. SAIN, 372 U.S. 293, 311
312 (1963), WE POINTED OUT THE VITAL DISTINCTION BETWEEN THE APPELLATE
AND HABEAS FUNCTIONS AND CONCLUDED THAT HABEAS RELIEF CANNOT BE DENIED
SOLELY ON THE GROUND THAT RELIEF SHOULD HAVE BEEN SOUGHT BY APPEAL TO
PRISONERS ALLEGING CONSTITUTIONAL DEPRIVATIONS: 

"THE WHOLE HISTORY OF THE WRIT-- ITS UNIQUE DEVELOPMENT-- REFUTES A
CONSTRUCTION OF THE FEDERAL COURTS' HABEAS CORPUS POWERS THAT WOULD
ASSIMILATE THEIR TASK TO THAT OF COURTS OF APPELLATE REVIEW.  THE
FUNCTION ON HABEAS IS DIFFERENT.  IT IS TO TEST BY WAY OF AN ORIGINAL
CIVIL PROCEEDING, INDEPENDENT OF THE NORMAL CHANNELS OF REVIEW OF
CRIMINAL JUDGMENTS, THE VERY GRAVEST ALLEGATIONS . . . THE LANGUAGE OF
CONGRESS, THE HISTORY OF THE WRIT, THE DECISIONS OF THIS COURT, ALL
MAKE CLEAR THAT THE POWER OF INQUIRY ON FEDERAL HABEAS CORPUS IS
PLENARY.  THEREFORE, WHERE AN APPLICANT FOR A WRIT OF HABEAS CORPUS
ALLEGES FACTS WHICH, IF PROVED, WOULD ENTITLED HIM TO RELIEF, THE
FEDERAL COURT TO WHICH THE APPLICATION IS MADE HAS THE POWER TO RECEIVE
EVIDENCE AND TRY THE FACTS ANEW." 

THE GOVERNMENT SUGGESTS ANOTHER RATIONALE FOR DENYING POST
CONVICTION RELIEF TO FEDERAL PRISONERS WITH ILLEGAL SEARCH-AND-SEIZURE
CLAIMS.  THE DENIAL OF FOURTH AMENDMENT PROTECTION AGAINST UNREASONABLE
SEARCHES AND SEIZURES, THE GOVERNMENT'S ARGUMENT RUNS, IS OF A
DIFFERENT NATURE FROM DENIALS OF OTHER CONSTITUTIONAL RIGHTS WHICH WE
HAVE HELD SUBJECT TO COLLATERAL ATTACK BY FEDERAL PRISONERS.  FOR
UNLIKE A CLAIM OF DENIAL OF EFFECTIVE COUNSEL OR OF VIOLATION OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION, AS EXAMPLES, A CLAIM OF ILLEGAL
SEARCH AND SEIZURE DOES NOT IMPUGN THE INTEGRITY OF THE FACT-FINDING
PROCESS OR CHALLENGE EVIDENCE AS INHERENTLY UNRELIABLE; RATHER, THE
EXCLUSION OF ILLEGALLY SEIZED EVIDENCE IS SIMPLY A PROPHYLACTIC DEVICE
INTENDED GENERALLY TO DETER FOURTH AMENDMENT VIOLATIONS BY LAW
ENFORCEMENT OFFICERS.  THIS DETERRENT FUNCTION, THE GOVERNMENT ARGUES,
IS ADEQUATELY SERVED BY THE OPPORTUNITIES AFFORDED A FEDERAL DEFENDANT
TO ENFORCE THE EXCLUSIONARY RULE BEFORE OR AT TRIAL, SO THAT THE
RELATIVELY MINIMAL ADDITIONAL DETERRENCE AFFORDED BY A POST-CONVICTION
REMEDY WOULD NOT SEEM TO JUSTIFY, EXCEPT IN SPECIAL CIRCUMSTANCES, THE
COLLATERAL RELEASE OF GUILTY PERSONS WHO DID NOT RAISE THE SEARCH-AND
SEIZURE ISSUE AT TRIAL OR ON DIRECT APPEAL.  IN SUM, THE GOVERNMENT
SPONSORS ADOPTION BY THIS COURT OF THE RULE ANNOUNCED IN THE MAJORITY
OPINION OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IN
THORNTON V. UNITED STATES, 125 U.S.APP.D.C. 114, 116, 368 F.2D 822, 824
(1966), THAT IN THE ABSENCE OF A SHOWING OF "SPECIAL CIRCUMSTANCES" A
CLAIM BY A FEDERAL PRISONER THAT EVIDENCE ADMITTED AT HIS TRIAL WAS THE
FRUIT OF AN UNCONSTITUTIONAL SEARCH OR SEIZURE IS NOT PROPERLY THE
GROUND OF A COLLATERAL ATTACK ON HIS CONVICTION. 

THE GOVERNMENT CONCEDES IN ITS BRIEF THAT WE HAVE ALREADY REJECTED
THIS APPROACH WITH RESPECT TO THE AVAILABILITY OF THE FEDERAL HABEAS
CORPUS REMEDY TO STATE PRISONERS.  THIS REJECTION WAS PREMISED IN LARGE
PART ON A RECOGNITION THAT THE AVAILABILITY OF COLLATERAL REMEDIES IS
NECESSARY TO INSURE THE INTEGRITY OF PROCEEDINGS AT AND BEFORE TRIAL
WHERE CONSTITUTIONAL RIGHTS ARE AT STAKE.  OUR DECISIONS LEAVE NO DOUBT
THAT THE FEDERAL HABEAS REMEDY EXTENDS TO STATE PRISONERS ALLEGING THAT
UNCONSTITUTIONALLY OBTAINED EVIDENCE WAS ADMITTED AGAINST THEM AT
TRIAL.  SEE, E.G., MANCUSI V. DEFORTE, 392 U.S. 364 (1968); CARAFAS V.
LAVALLEE, 392 U.S. 234 (1968); WARDEN V. HAYDEN, 387 U.S. 294 (1967);
SEE ALSO HENRY V. MISSISSIPPI, 379 U.S. 443, 452 (1965).  THE
GOVERNMENT ARGUES, HOWEVER, THAT FEDERAL POST-CONVICTION RELIEF SHOULD
NOT BE AVAILABLE TO FEDERAL PRISONERS IN AS BROAD A RANGE OF CASES AS
THAT COGNIZABLE WHEN PRESENTED BY STATE PRISONERS.  SUPPORT FOR THIS
PROPOSITION IS DRAWN FROM THE FACT THAT CONSIDERATIONS WHICH THIS
COURT, IN FAY V. NOIA, SUPRA, DEEMED JUSTIFICATIONS FOR AFFORDING A
FEDERAL FORUM TO STATE PRISONERS-- E.G., THE NECESSITY THAT FEDERAL
COURTS HAVE THE "LAST SAY" WITH RESPECT TO QUESTIONS OF FEDERAL LAW,
THE INADEQUACY OF STATE PROCEDURES TO RAISE AND PRESERVE FEDERAL
CLAIMS, THE CONCERN THAT STATE JUDGES MAY BE UNSYMPATHETIC TO FEDERALLY
CREATED RIGHTS, THE INSTITUTIONAL CONSTRAINTS ON THE EXERCISE OF THIS
COURT'S CERTIORARI JURISDICTION TO REVIEW STATE CONVICTIONS-- DO NOT
OBTAIN WITH RESPECT TO FEDERAL PRISONERS.  THUS, WE ARE TOLD THAT THE
FEDERAL PRISONER, HAVING ALREADY HAD HIS DAY IN FEDERAL COURT, STANDS
IN A DIFFERENT POSITION WITH REGARD TO FEDERAL COLLATERAL REMEDIES THAN
DOES THE STATE PRISONER.  CONCEDING THIS DISTINCTION, WE ARE UNABLE TO
UNDERSTAND WHY IT SHOULD LEAD US TO RESTRICT, COMPLETELY OR SEVERELY,
ACCESS BY FEDERAL PRISONERS WITH ILLEGAL SEARCH-AND-SEIZURE CLAIMS TO
FEDERAL COLLATERAL REMEDIES, WHILE PLACING NO SIMILAR RESTRICTION ON
ACCESS BY STATE PRISONERS. 

THE OPPORTUNITY TO ASSERT FEDERAL RIGHTS IN A FEDERAL FORUM IS
CLEARLY NOT THE SOLE JUSTIFICATION FOR FEDERAL POST-CONVICTION RELIEF;
OTHERWISE THERE WOULD BE NO NEED TO MAKE SUCH RELIEF AVAILABLE TO
FEDERAL PRISONERS AT ALL.  THE PROVISION OF FEDERAL COLLATERAL REMEDIES
RESTS MORE FUNDAMENTALLY UPON A RECOGNITION THAT ADEQUATE PROTECTION OF
CONSTITUTIONAL RIGHTS RELATING TO THE CRIMINAL TRIAL PROCESS REQUIRES
THE CONTINUING AVAILABILITY OF A MECHANISM FOR RELIEF.  THIS IS NO LESS
TRUE FOR FEDERAL PRISONERS THAN IT IS FOR STATE PRISONERS. 

IN TOWNSEND V. SAIN, SUPRA, AT 313, 318, WE SET DOWN THE
CIRCUMSTANCES UNDER WHICH A FEDERAL COURT MUST REVIEW CONSTITUTIONAL
CLAIMS-- INCLUDING, OF COURSE, CLAIMS OF ILLEGAL SEARCH AND SEIZURE--
PRESENTED BY STATE PRISONERS: 

"IF (1) THE MERITS OF THE FACTUAL DISPUTE WERE NOT RESOLVED IN THE
STATE HEARING; (2) THE STATE FACTUAL DETERMINATION IS NOT FAIRLY
SUPPORTED BY THE RECORD AS A WHOLE; (3) THE FACT-FINDING PROCEDURE
EMPLOYED BY THE STATE COURT WAS NOT ADEQUATE TO AFFORD A FULL AND FAIR
HEARING; (4) THERE IS A SUBSTANTIAL ALLEGATION OF NEWLY DISCOVERED
EVIDENCE; (5) THE MATERIAL FACTS WERE NOT ADEQUATELY DEVELOPED AT THE
STATE-COURT HEARING; OR (6) FOR ANY REASON IT APPEARS THAT THE STATE
TRIER OF FACT DID NOT AFFORD THE HABEAS APPLICANT A FULL AND FAIR FACT
HEARING. 

        . .          .          . 

"IN ALL OTHER CASES WHERE THE MATERIAL FACTS ARE IN DISPUTE, THE
HOLDING OF SUCH A HEARING IS IN THE DISCRETION OF THE DISTRICT JUDGE." 

OF THESE, ONLY THE DUTY OF THE FEDERAL HABEAS COURT TO SCRUTINIZE
"THE FACT-FINDING PROCEDURE" UNDER (3) DOES NOT APPLY IN THE CASE OF A
FEDERAL PRISONER; FEDERAL FACT-FINDING PROCEDURES ARE BY HYPOTHESIS
ADEQUATE TO ASSURE THE INTEGRITY OF THE UNDERLYING CONSTITUTIONAL
RIGHTS.  THUS, WHEN A REQUEST FOR RELIEF UNDER SEC. 2255 ASSERTS A
CLAIM OF UNCONSTITUTIONAL SEARCH AND SEIZURE WHICH WAS TESTED BY A
MOTION TO SUPPRESS AT OR BEFORE TRIAL UNDER FED. RULE CRIM. PROC.
41(E), THE SEC. 2255 COURT NEED NOT STOP TO REVIEW THE ADEQUACY OF THE
PROCEDURE ESTABLISHED BY THAT RULE.  IN THIS RESPECT, AND IN THIS
RESPECT ONLY, THE POSITION OF THE FEDERAL PRISONER DOES DIFFER FROM
THAT OF THE STATE PRISONER.  WE PERCEIVE NO DIFFERENCES BETWEEN THE
SITUATIONS OF STATE AND FEDERAL PRISONERS WHICH SHOULD MAKE ALLEGATIONS
OF THE OTHER CIRCUMSTANCES LISTED IN TOWNSEND V. SAIN LESS SUBJECT TO
SCRUTINY BY A SEC. 2255 COURT.  /8/ 

THE APPROACH ADOPTED BY THE COURT IN THORNTON AND PRESSED UPON US
HERE EXALTS THE VALUE OF FINALITY IN CRIMINAL JUDGMENTS AT THE EXPENSE
OF THE INTEREST OF EACH PRISONER IN THE VINDICATION OF HIS
CONSTITUTIONAL RIGHTS.  SUCH REGARD FOR THE BENEFITS OF FINALITY RUNS
CONTRARY TO THE MOST BASIC PRECEPTS OF OUR SYSTEM OF POST-CONVICTION
RELIEF.  IN FAY V. NOIA, SUPRA, AT 424, A CASE INVOLVING A STATE
PRISONER WHO CLAIMED THAT HIS CONFESSION WAS COERCED, WE SAID THAT
"CONVENTIONAL NOTIONS OF FINALITY IN CRIMINAL LITIGATION CANNOT BE
PERMITTED TO DEFEAT THE MANIFEST FEDERAL POLICY THAT FEDERAL
CONSTITUTIONAL RIGHTS OF PERSONAL LIBERTY SHALL NOT BE DENIED WITHOUT
THE FULLEST OPPORTUNITY FOR PLENARY FEDERAL JUDICIAL REVIEW."  THE SAME
VIEW WAS EXPRESSED IN SANDERS V. UNITED STATES, SUPRA, AT 8, A CASE
INVOLVING A FEDERAL PRISONER:  "(CONVENTIONAL NOTIONS OF FINALITY OF
LITIGATION HAVE NO PLACE WHERE LIFE OR LIBERTY IS AT STAKE AND
INFRINGEMENT OF CONSTITUTIONAL RIGHTS IS ALLEGED."  THIS PHILOSOPHY
INHERES IN OUR RECOGNITION OF STATE PRISONERS' POST-CONVICTION CLAIMS
OF ILLEGAL SEARCH AND SEIZURE.  PLAINLY THE INTEREST IN FINALITY IS THE
SAME WITH REGARD TO BOTH FEDERAL AND STATE PRISONERS.  WITH REGARD TO
BOTH, CONGRESS HAS DETERMINED THAT THE FULL PROTECTION OF THEIR
CONSTITUTIONAL RIGHTS REQUIRES THE AVAILABILITY OF A MECHANISM FOR
COLLATERAL ATTACK.  THE RIGHT THEN IS NOT MERELY TO A FEDERAL FORUM BUT
TO FULL AND FAIR CONSIDERATION OF CONSTITUTIONAL CLAIMS.  FEDERAL
PRISONERS ARE NO LESS ENTITLED TO SUCH CONSIDERATION THAN ARE STATE
PRISONERS.  THERE IS NO REASON TO TREAT FEDERAL TRIAL ERRORS AS LESS
DESTRUCTIVE OF CONSTITUTIONAL GUARANTEES THAN STATE TRIAL ERRORS, NOR
TO GIVE GREATER PRECLUSIVE EFFECT TO PROCEDURAL DEFAULTS BY FEDERAL
DEFENDANTS THAN TO SIMILAR DEFAULTS BY STATE DEFENDANTS.  TO HOLD
OTHERWISE WOULD REFLECT AN ANOMALOUS AND ERRONEOUS VIEW OF FEDERAL
STATE RELATIONS. 

WE CANNOT AGREE WITH THE SUGGESTION IN MR. JUSTICE BLACK'S DISSENT
THAT THE WEIGHT TO BE ACCORDED THE BENEFITS OF FINALITY IS AS
CONTROLLING IN THE CONTEXT OF POST-CONVICTION RELIEF AS IN THE CONTEXT
OF RETROACTIVE RELIEF.  THE AVAILABILITY OF POST-CONVICTION RELIEF
SERVES SIGNIFICANTLY TO SECURE THE INTEGRITY OF PROCEEDINGS AT OR
BEFORE TRIAL AND ON APPEAL.  NO SUCH SERVICE IS PERFORMED BY EXTENDING
RIGHTS RETROACTIVELY.  THUS, COLLATERAL RELIEF, UNLIKE RETROACTIVE
RELIEF, CONTRIBUTES TO THE PRESENT VITALITY OF ALL CONSTITUTIONAL
RIGHTS WHETHER OR NOT THEY BEAR ON THE INTEGRITY OF THE FACT-FINDING
PROCESS. 

MORE FUNDAMENTALLY, THE LOGIC OF HIS DISSENT CANNOT BE LIMITED TO
THE AVAILABILITY OF POST-CONVICTION RELIEF.  IT BRINGS INTO QUESTION
THE PROPRIETY OF THE EXCLUSIONARY RULE ITSELF.  THE APPLICATION OF THAT
RULE IS NOT MADE TO TURN ON THE EXISTENCE OF A POSSIBILITY OF
INNOCENCE; RATHER, EXCLUSION OF ILLEGALLY OBTAINED EVIDENCE IS DEEMED
NECESSARY TO PROTECT THE RIGHT OF ALL CITIZENS, NOT MERELY THE CITIZEN
ON TRIAL, TO BE SECURE AGAINST UNREASONABLE SEARCHES AND SEIZURES.  AS
WE SAID IN MILLER V. UNITED STATES, 357 U.S. 301, 313 (1958): 

     "WE ARE UNDULY MINDFUL OF THE RELIANCE THAT SOCIETY MUST PLACE

  FOR ACHIEVING LAW AND ORDER UPON THE ENFORCING AGENCIES OF THE

  CRIMINAL LAW.  BUT INSISTENCE ON OBSERVANCE BY LAW OFFICERS OF

  TRADITIONAL FAIR PROCEDURAL REQUIREMENTS IS, FROM THE LONG POINT

OF VIEW, BEST CALCULATED TO CONTRIBUTE TO THAT END.  HOWEVER MUCH

  IN A PARTICULAR CASE INSISTENCE UPON SUCH RULES MAY APPEAR AS A

  TECHNICALITY THAT INJURES TO THE BENEFIT OF A GUILTY PERSON, THE

  HISTORY OF THE CRIMINAL LAW PROVES THAT TOLERANCE OF SHORT-CUT

  METHODS IN LAW ENFORCEMENT IMPAIRS ITS ENDURING EFFECTIVENESS . .

  . EVERY HOUSEHOLDER, THE GOOD AND THE BAD, THE GUILTY AND THE

  INNOCENT, IS ENTITLED TO THE PROTECTION DESIGNED TO SECURE THE

  COMMON INTEREST AGAINST UNLAWFUL INVASION OF THE HOUSE." 

FINALLY, MR. JUSTICE BLACK'S RELIANCE ON PETITIONER'S CONCESSION OF
PARTICIPATION IN THE ROBBERY IS MISPLACED.  THAT CONCESSION IS
IRRELEVANT IN LIGHT OF PETITIONER'S DEFENSE AT TRIAL BASED ON
INSANITY.  SURELY THAT DEFENSE, ANY MORE THAN ANY OTHER DEFENSE, CANNOT
BE PREJUDICED BY THE ADMISSION OF UNCONSTITUTIONALLY SEIZED EVIDENCE. 

WE THUS REJECT THE RULE ANNOUNCED IN THE MAJORITY OPINION IN
THORNTON AND ADOPT THE REASONING OF JUDGE WRIGHT'S DISSENT IN THAT
CASE, 125 U.S.APP.D.C.,AT 123, 368 F.2D,AT 831: 

     "THERE IS UNDOUBTEDLY A DIFFERENCE IN THE WAY FEDERAL COURTS

  SHOULD TREAT POST-CONVICTION APPLICATIONS BY STATE AND FEDERAL

  PRISONERS.  BROWN V. ALLEN, (344 U.S. 443, 508), 73 S.CT. 397

  (OPINION OF MR. JUSTICE FRANKFURTER), INTERPRETS 28 U.S.C. 2241

  AS REQUIRING FEDERAL COURTS TO HAVE THE 'LAST SAY' WITH RESPECT

  TO QUESTIONS OF FEDERAL LAW.  FEDERAL PRISONERS APPLYING FOR

  COLLATERAL RELIEF OFTEN HAVE HAD THEIR CONSTITUTIONAL CLAIMS

  PASSED ON BY FEDERAL COURTS AT TRIAL OR ON APPEAL, SO THE BROWN

  V. ALLEN RATIONALE FOR FEDERAL COURT RELITIGATION IS INAPPOSITE. 

  BUT THIS DIFFERENCE PROVIDES NO BASIS FOR LIMITING THE GROUNDS

  UPON WHICH FEDERAL PRISONERS MAY OBTAIN COLLATERAL RELIEF, OR FOR

  FORMULATING A SEPARATE SET OF RULES TO DETERMINE WHEN A FEDERAL

  PRISONER'S CLAIM HAS ADEQUATELY BEEN ADJUDICATED.  WHERE A

  FEDERAL TRIAL OR APPELLATE COURT HAS HAD A 'SAY' ON A FEDERAL

  PRISONER'S CLAIM, THERE MAY BE NO NEED FOR COLLATERAL

  RELITIGATION.  BUT WHAT IF THE FEDERAL TRIAL OR APPELLATE COURT

  SAID NOTHING BECAUSE THE ISSUE WAS NOT RAISED?  WHAT IF IT IS

UNCLEAR WHETHER THE 'SAY' WAS ON THE MERITS?  WHAT IF NEW LAW HAS

  BEEN MADE OR FACTS UNCOVERED RELATING TO THE CONSTITUTIONAL CLAIM

  SINCE THE TRIAL AND APPEAL?  WHAT IF THE TRIAL OR APPELLATE COURT

  BASED ITS RULINGS ON FINDINGS OF FACT MADE AFTER A HEARING NO

  'FULL AND FAIR' WITHIN THE MEANING OF TOWNSEND V. SAIN, 372 U.S.

  293, 83 S.CT. 745, 9 L.ED.2D 770 (1963)?  ALL THESE PROBLEMS ARE

  COMMON TO STATE AND FEDERAL PRISONERS, AND THE INTEREST IN

  FINALITY OPERATES EQUALLY IN BOTH SITUATIONS.  THESE PROBLEMS

RAISE, NOT THE ISSUE WHETHER RELITIGATION IS NECESSARY, BUT

 WHETHER ONE ADEQUATE LITIGATION HAS BEEN AFFORDED.  IT WOULD BE

  ANOMALOUS INDEED, ESPECIALLY IN LIGHT OF THE INTEREST IN

  MAINTAINING GOOD FEDERAL-STATE RELATIONS, IF DEFAULTS NOT

  PRECLUDING ONE ADEQUATE FEDERAL REVIEW FOR THE CONSTITUTIONAL

  CLAIMS OF STATE PRISONERS PRECLUDED SUCH A REVIEW FOR FEDERAL

  PRISONERS, OR IF DEFECTS RENDERING STATE COURT ADJUDICATIONS

  INADEQUATE DID NOT SIMILARLY AFFECT FEDERAL COURT

  ADJUDICATIONS." 

WE THEREFORE HOLD THAT A CLAIM OF UNCONSTITUTIONAL SEARCH AND
SEIZURE IS COGNIZABLE IN A SEC. 2255 PROCEEDING.  THE ORDER OF THE
COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE PERTINENT PROVISIONS OF 28 U.S.C. 2255 ARE: 

"A PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED BY ACT
OF CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND THAT THE
SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE
UNITED STATES, OR THAT THE COURT WAS WITHOUT JURISDICTION TO IMPOSE
SUCH SENTENCE, OR THAT THE SENTENCE WAS IN EXCESS OF THE MAXIMUM
AUTHORIZED BY LAW, OR IS OTHERWISE SUBJECT TO COLLATERAL ATTACK, MAY
MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE. 

"A MOTION FOR SUCH RELIEF MAY BE MADE AT ANY TIME. 

"UNLESS THE MOTION AND THE FILES AND RECORDS OF THE CASE
CONCLUSIVELY SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF, THE COURT
SHALL CAUSE NOTICE THEREOF TO BE SERVED UPON THE UNITED STATES
ATTORNEY, GRANT A PROMPT HEARING THEREON, DETERMINE THE ISSUES AND MAKE
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT THERETO.  IF THE
COURT FINDS THAT THE . . . SENTENCE IMPOSED WAS NOT AUTHORIZED BY LAW
OR OTHERWISE OPEN TO COLLATERAL ATTACK, OR THAT THERE HAS BEEN SUCH A
DENIAL OR INFRINGEMENT OF THE CONSTITUTIONAL RIGHTS OF THE PRISONER AS
TO RENDER THE JUDGMENT VULNERABLE TO COLLATERAL ATTACK, THE COURT SHALL
VACATE AND SET THE JUDGMENT ASIDE AND SHALL DISCHARGE THE PRISONER OR
RESENTENCE HIM OR GRANT A NEW TRIAL OR CORRECT THE SENTENCE AS MAY
APPEAR APPROPRIATE. 

"A COURT MAY ENTERTAIN AND DETERMINE SUCH MOTION WITHOUT REQUIRING
THE PRODUCTION OF THE PRISONER AT THE HEARING. 

"THE SENTENCING COURT SHALL NOT BE REQUIRED TO ENTERTAIN A SECOND OR
SUCCESSIVE MOTION FOR SIMILAR RELIEF ON BEHALF OF THE SAME PRISONERS." 

/2/  PETITIONER INITIATED THE SEC. 2255 PROCEEDING BY A PRO SE
MOTION.  THE ONLY CLAIM PRESENTED WAS DENIAL OF EFFECTIVE ASSISTANCE OF
COUNSEL.  THE DISTRICT JUDGE ORDERED A HEARING, AND APPOINTED COUNSEL
TO ASSIST PETITIONER.  COUNSEL FILED A SUPPLEMENTAL MOTION PRESENTING
TWO ADDITIONAL CLAIMS, ONE OF WHICH WAS THAT THE SEARCH OF PETITIONER'S
AUTOMOBILE WAS ILLEGAL. 

/3/  WARREN V. UNITED STATES, 311 F.2D 673, 675 (1963); SEE ALSO
SPRINGER V. UNITED STATES, 340 F.2D 950 (1965); PETERS V. UNITED
STATES, 312 F.2D 481 (1963); GENDRON V. UNITED STATES, 340 F.2D 601
(1965).  ACCORD:  UNITED STATES V. RE, 372 F.2D 641 (C.A. 2D CIR.
1967); UNITED STATES V. JENKINS, 281 F.2D 193 (C.A. 3D CIR. 1960);
ARMSTEAD V. UNITED STATES, 318 F.2D 725 (C.A. 5TH CIR. 1963); EISNER V.
UNITED STATES, 351 F.2D 55 (C.A. 6TH CIR. 1965); DE WELLES V. UNITED
STATES, 372 F.2D 67 (C.A. 7TH CIR. 1967); WILLIAMS V. UNITED STATES,
307 F.2D 366(C.A. 9TH CIR. 1962). 

WE HAVE NOT OVERLOOKED THAT THE DISTRICT COURT'S STATEMENT THAT
"THIS MATTER WAS NOT ASSIGNED AS ERROR ON KAUFMAN'S APPEAL FROM
CONVICTION . . . " SUGGESTS THAT IN ANY EVENT FAILURE TO APPEAL THE
CONVICTION RENDERS THE SEC. 2255 REMEDY UNAVAILABLE.  THIS SUGGESTION
IS CONTRARY TO OUR DECISIONS THAT FAILURE TO TAKE A DIRECT APPEAL FROM
CONVICTION DOES NOT DEPRIVE A FEDERAL POST-CONVICTION COURT OF POWER TO
ADJUDICATE THE MERITS OF CONSTITUTIONAL CLAIMS; THE QUESTION RATHER IS
WHETHER THE CASE IS ONE IN WHICH REFUSAL TO EXERCISE THAT POWER WOULD
BE APPROPRIATE.  SEE FAY V. NOIA, 372 U.S. 391, 438-440 (1963); HENRY
V. MISSISSIPPI, 379 U.S. 443, 451-452 (1965). 

THIS CERTAINLY IS NOT A CASE WHERE THERE WAS A "DELIBERATE BY-PASS"
OF A DIRECT APPEAL.  APPOINTED COUNSEL HAD OBJECTED AT TRIAL TO THE
ADMISSION OF CERTAIN EVIDENCE ON GROUNDS OF UNLAWFUL SEARCH AND
SEIZURE, BUT NEWLY APPOINTED APPELLATE COUNSEL DID NOT ASSIGN THE
ADMISSION AS ERROR EITHER IN HIS BRIEF OR ON ORAL ARGUMENT OF THE
APPEAL.  AFTER ORAL ARGUMENT OF THE APPEAL, HOWEVER, PETITIONER WROTE A
LETTER TO APPELLATE COUNSEL ASKING HIM TO SUBMIT TO THE COURT OF
APPEALS A CLAIM OF ILLEGAL SEARCH AND SEIZURE OF ITEMS FROM HIS
AUTOMOBILE.  COUNSEL FORWARDED PETITIONER'S LETTER TO THE CLERK OF THE
COURT OF APPEALS WHO NOTIFIED COUNSEL THAT PETITIONER'S LETTER HAD BEEN
GIVEN TO THE PANEL WHICH HAD HEARD AND WAS CONSIDERING THE APPEAL.  THE
OPINION OF THE COURT OF APPEALS AFFIRMING PETITIONER'S CONVICTION DOES
NOT APPEAR TO PASS ON THE SEARCH-AND-SEIZURE CLAIM. 

/4/  UNITED STATES V. SUTTON, 321 F.2D 221 (C.A. 4TH CIR. 1963);
GAITAN V. UNITED STATES, 317 F.2D 494 (C.A. 10TH CIR. 1963). 

/5/  AMONG THE SERIOUS ADMINISTRATIVE PROBLEMS UNDER HABEAS CORPUS
PRACTICE IN THE CASE OF FEDERAL PRISONERS WAS THAT CREATED BY THE
REQUIREMENT THAT THE ACTION BE BROUGHT IN THE DISTRICT OF CONFINEMENT,
WHERE THE RECORDS OF THE CASE WERE OFTEN NOT READILY AVAILABLE. 
THE SENTENCING COURT.  SEE UNITED STATES V. HAYMAN, 342 U.S. 205, 212
219 (1952). 

/6/  SEE, E.G., EX PARTE LANGE, 18 WALL.  163 (1874); EX PARTE
WILSON, 114 U.S. 416 (1885); CALLAN V. WILSON, 127 U.S. 540 (1888);
COUNSELMAN V. HITCHCOCK, 142 U.S. 547 (1892); JOHNSON V. ZERBST, 304
U.S. 458 (1938); BOWEN V. JOHNSON, 306 U.S. 19 (1939); WALEY V.
JOHNSTON, 316 U.S. 101 (1942); VON MOLTKE V. GILLIES, 332 U.S. 708
(1948); SEE ALSO CASES COLLECTED IN FAY V. NOIA, 372 U.S. 391, 409, N.
17. 

/7/  SEE, E.G., "A MOTION UNDER SEC. 2255 CANNOT BE MADE THE
SUBSTITUTE FOR AN APPEAL," PETERS V. UNITED STATES, SUPRA, N. 3, AT 482
(C.A. 8TH CIR.); "SECTION 2255 PROVIDES FOR A COLLATERAL ATTACK ON A
JUDGMENT OF CONVICTION AND IS NOT A SUBSTITUTE FOR APPEAL FOR ALLEGED
ERRORS COMMITTED AT THE TRIAL," EISNER V. UNITED STATES, SUPRA, N. 3,
AT 57 (C.A. 6TH CIR.); "QUESTIONS CONCERNING THE ADMISSIBILITY OF
EVIDENCE OBTAINED DIRECTLY OR INDIRECTLY AS A RESULT OF AN UNLAWFUL
SEARCH CAN BE REVIEWED ON AN APPEAL FROM A JUDGMENT OF CONVICTION, BUT
CANNOT BE DEALT WITH IN A SECTION 2255 PROCEEDING," WILLIAMS V. UNITED
STATES, SUPRA, N. 3, AT 367 (C.A. 9TH CIR.); "IT HAS LONG BEEN THE LAW
THAT HABEAS CORPUS AND SEC. 2255 WILL NOT BE ALLOWED TO DO SERVICE AS
AN APPEAL, AND THAT SO FAR AS FEDERAL PRISONERS ARE CONCERNED, FAILURE
TO APPEAL WILL NORMALLY BAR RESORT TO POST-CONVICTION RELIEF," NASH V.
UNITED STATES, 342 F.2D 366, 367 (C.A. 5TH CIR. 1965).  THESE
PARAPHRASE THE STATEMENT IN SUNAL V. LARGE, 332 U.S. 174, 178 (1947),
THAT "THE WRIT OF HABEAS CORPUS WILL NOT BE ALLOWED TO DO SERVICE FOR
AN APPEAL," BUT THAT STATEMENT WAS MADE IN THE CONTEXT OF AN ALLEGED
NONCONSTITUTIONAL TRIAL ERROR.  SEE UNITED STATES V. SOBELL, 314 F.2D
314, 322-323 (C.A. 2D CIR. 1963). 

/8/  WHERE A TRIAL OR APPELLATE COURT HAS DETERMINED THE FEDERAL
PRISONER'S CLAIM, DISCRETION MAY IN A PROPER CASE BE EXERCISED AGAINST
THE GRANT OF A SEC. 2255 HEARING.  SECTION 2255 PROVIDES FOR HEARING
"(UNLESS THE MOTION AND THE FILES AND RECORDS OF THE CASE CONCLUSIVELY
SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF . . . ."  IN SANDERS V.
UNITED STATES, 373 U.S. 1 (1963), WE ANNOUNCED STANDARDS GOVERNING THE
DETERMINATION WHETHER A HEARING SHOULD BE ORDERED IN THE CASE OF A
SUCCESSIVE MOTION UNDER SEC. 2255.  SIMILARLY, WHERE THE TRIAL OR
APPELLATE COURT HAS HAD A "SAY" ON A FEDERAL PRISONER'S CLAIM, IT MAY
BE OPEN TO THE SEC. 2255 COURT TO DETERMINE THAT ON THE BASIS OF THE
MOTION, FILES, AND RECORDS, "THE PRISONER IS ENTITLED TO NO RELIEF." 
SEE THORNTON V. UNITED STATES, 125 U.S.APP.D.C. 114, 125, 368 F.2D 822,
833 (1966) (DISSENTING OPINION OF WRIGHT, J.).     FURTHERMORE, THE
SEC. 2255 COURT MAY IN A PROPER CASE DENY RELIEF TO A FEDERAL PRISONER
WHO HAS DELIBERATELY BYPASSED THE ORDERLY FEDERAL PROCEDURES PROVIDED
AT OR BEFORE TRIAL AND BY WAY OF APPEAL-- E.G., MOTION TO SUPPRESS
UNDER FED. RULE CRIM. PROC. 41(E) OR APPEAL UNDER FED. RULE APP. PROC
4(B).  FAY V. NOIA, SUPRA, N. 3, AT 438; HENRY V. MISSISSIPPI, SUPRA,
N.3, AT 451-452. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING.     PETITIONER KAUFMAN WAS CONVICTED
OF ROBBING A FEDERALLY INSURED SAVINGS AND LOAN ASSOCIATION WHILE ARMED
WITH A PISTOL.  PART OF THE EVIDENCE USED AGAINST HIM WAS A REVOLVER,
SOME OF THE STOLEN TRAVELER'S CHECKS, A MONEY-ORDER RECEIPT, A TRAFFIC
SUMMONS, AND GASOLINE RECEIPTS.  DURING THE TRIAL PETITIONER'S COUNSEL
CONCEDED THAT PETITIONER HAD COMMITTED THE ROBBERY BUT CONTENDED HE WAS
NOT RESPONSIBLE FOR THE CRIME BECAUSE HE WAS MENTALLY ILL AT THE TIME. 
AN APPEAL FROM HIS CONVICTION WAS REJECTED BY THE COURT OF APPEALS, 350
F.2D 408 (C.A. 8TH CIR. 1965), AND WE DENIED CERTIORARI, 383 U.S. 951
(1966).  THREE MONTHS LATER-- AFTER THE DECISION HAD BECOME WHAT IS
GENERALLY CONSIDERED "FINAL"-- HE FILED IN THE FEDERAL DISTRICT COURT
THE PRESENT MOTION UNDER 28 U.S.C. 2255, ASKING THAT HIS SENTENCE BE
VACATED ON THE GROUND, AMONG OTHERS, THAT THE TRIAL COURT HAD COMMITTED
ERROR IN NOT SUPPRESSING THE EVIDENCE AGAINST HIM BECAUSE THE ARTICLES
HAD BEEN OBTAINED BY AN UNLAWFUL SEARCH AND SEIZURE.  DESPITE THE FACT
THAT HE HAS NEVER, EITHER IN HIS TRIAL OR IN THIS PROCEEDING, ASSERTED
THAT HE HAD NOT ACTUALLY PHYSICALLY COMMITTED THE ROBBERY WITH A
PISTOL, AND DESPITE THE FACT THAT THIS PLAINLY RELIABLE EVIDENCE
CLEARLY SHOWS, ALONG WITH THE OTHER EVIDENCE AT TRIAL, THAT HE WAS NOT
INSANE, THE COURT IS REVERSING HIS CASE, HOLDING THAT HE CAN
COLLATERALLY ATTACK THE JUDGMENT AFTER IT HAD BECOME FINAL.  I
DISSENT. 

MY DISSENT RESTS ON MY BELIEF THAT NOT EVERY CONVICTION BASED IN
PART ON A DENIAL OF A CONSTITUTIONAL RIGHT IS SUBJECT TO ATTACK BY
HABEAS CORPUS OR SEC. 2255 PROCEEDINGS AFTER A CONVICTION HAS BECOME
FINAL.  THIS CONCLUSIONS IS IS SUPPORTED BY THE LANGUAGE OF SEC. 2255
WHICH CLEARLY SUGGESTS THAT NOT EVERY CONSTITUTIONAL CLAIM IS INTENDED
TO BE A BASIS FOR COLLATERAL RELIEF.  /1/  AND, AS THIS COURT HAS SAID
IN FAY V. NOIA, WITH REFERENCE TO HABEAS CORPUS, 

"DISCRETION IS IMPLICIT IN THE STATUTORY COMMAND THAT THE JUDGE . .
. 'DISPOSE OF THE MATTER AS LAW AND JUSTICE REQUIRED,' 28 U.S.C. 2243 .
. . "  372 U.S. 391, 438.  OF COURSE ONE IMPORTANT FACTOR THAT WOULD
RELATE TO WHETHER THE CONVICTION SHOULD BE VULNERABLE TO COLLATERAL
ATTACK IS THE POSSIBILITY OF THE APPLICANT'S INNOCENCE.  FOR
ILLUSTRATION, FEW WOULD THINK THAT JUSTICE REQUIRES RELEASE OF A PERSON
WHOSE ALLEGATIONS CLEARLY SHOW THAT HE WAS GUILTY OF THE CRIME OF WHICH
HE HAD BEEN CONVICTED. 

I AGREE WITH THE COURT'S CONCLUSION THAT THE SCOPE OF COLLATERAL
ATTACK IS SUBSTANTIALLY THE SAME IN FEDERAL HABEAS CORPUS CASES WHICH
INVOLVE CHALLENGES TO STATE CONVICTIONS, AS IT IS IN SEC. 2255 CASES
WHICH INVOLVE CHALLENGES TO FEDERAL CONVICTIONS.  THE CRUCIAL QUESTION,
HOWEVER, IS WHETHER CERTAIN TYPES OF CLAIMS, SUCH AS A CLAIM TO KEEP
OUT RELEVANT AND TRUSTWORTHY EVIDENCE BECAUSE THE RESULT OF AN
UNCONSTITUTIONAL SEARCH AND SEIZURE, SHOULD NORMALLY BE OPEN IN THESE
COLLATERAL PROCEEDINGS.  THIS QUESTION WAS FULLY AND CAREFULLY
CONSIDERED BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
IN THORNTON V. UNITED STATES, 125 U.S.APP.D.C. 114, 368 F.2D 822
(1966), AND I AGREE SUBSTANTIALLY WITH THE OPINION OF JUDGE LEVENTHAL
FOR THE MAJORITY OF THAT COURT WHICH STATES:  /2/ 

"(GENERALLY A CLAIM BY A FEDERAL PRISONER THAT EVIDENCE ADMITTED AT
HIS TRIAL WAS THE FRUIT OF AN UNCONSTITUTIONAL SEARCH OR SEIZURE IS NOT
PROPERLY THE GROUND OF A COLLATERAL ATTACK ON HIS CONVICTION.  AS
FURTHER NOTED BELOW, THIS RULE IS SUBJECT TO AN EXCEPTION FOR SPECIAL
CIRCUMSTANCES . . .

.          .          .          . 

     "MANY OPINIONS DECLARE THAT COLLATERAL ATTACK, AS BY HABEAS

  CORPUS, IS AVAILABLE TO CORRECT THE DENIAL OF A CONSTITUTIONAL

  RIGHT.  THIS IS THE GENERAL RULE BUT IT IS NOT AN ABSOLUTE . . .

        .          .          .          . 

"THE COURTS ARE CALLED ON TO EVOLVE AND PROVIDE PROCEDURES AND
REMEDIES THAT ARE EFFECTIVE TO VINDICATE CONSTITUTIONAL RIGHTS. 
HOWEVER, WHERE EFFECTIVE PROCEDURES ARE AVAILABLE IN THE DIRECT
PROCEEDING, THERE IS NO IMPERATIVE TO PROVIDE AN ADDITIONAL, COLLATERAL
REVIEW, LEAVING NO STONE UNTURNED, WHEN EXPLORATION OF ALL AVENUES OF
JUSTICE AT THE BEHEST OF INDIVIDUAL PETITIONERS MAY IMPAIR JUDICIAL
ADMINISTRATION OF THE FEDERAL COURTS, AS BY MAKING CRIMINAL LITIGATION
INTERMINABLE, AND DIVERTING RESOURCES OF THE FEDERAL JUDICIARY." 

IT WAS FORMERLY THE RULE IN THIS COUNTRY THAT JUDGMENTS WERE SO
IMPERVIOUS TO COLLATERAL ATTACK THAT A DEFENDANT COULD NOT COLLATERALLY
ATTACK HIS CONVICTION EVEN AFTER THE GOVERNMENT HAD ADMITTED HIS
INNOCENCE.  THAT RULE, OBVIOUSLY A HARSH AND WHAT MIGHT SEEM TO MOST
PEOPLE AN INDEFENSIBLE ONE, HAS OF COURSE NOW BEEN ABANDONED.  IT WAS
FINALLY PUT TO REST IN FAY V. NOIA, 372 U.S. 391 (1963).  IT IS THIS
ELEMENT OF PROBABLE OR POSSIBLE INNOCENCE THAT I THINK SHOULD BE GIVEN
WEIGHT IN DETERMINING WHETHER A JUDGMENT AFTER CONVICTION AND APPEAL
AND AFFIRMANCE SHOULD BE OPEN TO COLLATERAL ATTACK, FOR THE GREAT
HISTORIC ROLE OF THE WRIT OF HABEAS CORPUS HAS BEEN TO INSURE THE
RELIABILITY OF THE GUILT-DETERMINING PROCESS.  /3/  IN FAY V. NOIA,
NOIA AND HIS TWO CODEFENDANTS HAD BEEN CONVICTED OF FELONY MURDER IN
NEW YORK STATE COURT AND EACH HAD BEEN SENTENCED TO LIFE IMPRISONMENT. 
THE SOLE EVIDENCE AGAINST EACH DEFENDANT WAS HIS CONFESSION.  WHILE HIS
CODEFENDANTS APPEALED, NOIA DID NOT, FOR FEAR THAT IF HE SECURED A
REVERSAL AND WAS RECONVICTED AT A SECOND TRIAL, HE WOULD BE SENTENCED
TO DEATH.  THE CONFESSIONS OF ONE CODEFENDANT WERE SUBSEQUENTLY FOUND
BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT TO HAVE BEEN COERCED BY
PRACTICES WHICH THAT COURT DESCRIBED AS "SATANIC."  UNITED STATES EX
REL. CAMINITO V. MURPHY, 222 F.2D 698, 701 (1955).  THE CONVICTION OF
NOIA'S OTHER CODEFENDANT WAS ALSO REVERSED, PEOPLE V. BONINO, 1 N.Y.2D
752, 135 N.E.2D 51, AND SINCE THERE WAS NO EVIDENCE OTHER THAN THE
COERCED CONFESSIONS THAT THEY WERE GUILTY, THE STATE APPARENTLY
DECLINED TO REPROSECUTE THEM AND THEY WERE SET FREE.  SEE UNITED STATES
EX REL. NOIA V. FAY, 183 F.SUPP.  222, 227, N. 6 (1960).  NOIA,
HOWEVER, LANGUISHED IN PRISON, EVEN THOUGH HIS ALLEGED CONFEDERATES HAD
BEEN RELEASED.  BOTH THE NEW YORK COURTS AND THE FEDERAL DISTRICT COURT
DECLINED TO REVIEW HIS CASE ON THE GROUND THAT HIS 1942 FAILURE TO
APPEAL MADE HIS CONVICTION "FINAL."  HE REMAINED IN JAIL DESPITE THE
FACT THAT HE "CONTINUOUSLY ASSERTED HIS INNOCENCE OF THE CRIME FOR
WHICH HE (HAD) BEEN CONVICTED" IN HIS PETITION FOR HABEAS CORPUS AND
ELSEWHERE.  SEE TRANSCRIPT OF RECORD IN NO. 84, OCTOBER TERM, 1962, P.
8. 

IT WAS UNDER THESE CIRCUMSTANCES, STRONGLY APPEALING TO THE COURT'S
SENSE OF WHAT JUSTICE REQUIRED, THAT THIS COURT HELD THAT NOIA WAS
ENTITLED TO CHALLENGE HIS CONVICTION EVEN THOUGH IT HAD PREVIOUSLY
BECOME "FINAL."  MY BROTHER HARLAN, DISSENTING, CONCLUDED THAT NO
MATTER HOW APPEALING THE CIRCUMSTANCES, ONE WRONGLY CONVICTED MUST BE
CONSIGNED TO THE SLOW, TEDIOUS, AND UNCERTAIN ROAD TO WHATEVER RELIEF
HE MIGHT POSSIBLY GET FROM THE CHIEF EXECUTIVE.  ON THE CONTRARY, I
AGREED WITH FAY V. NOIA AS ONE OF THE BRIGHT LANDMARKS IN THE
ADMINISTRATION OF CRIMINAL JUSTICE.  BUT I DID NOT THINK THEN AND DO
NOT THINK NOW THAT IT LAID DOWN AN INFLEXIBLE RULE COMPELLING THE
COURTS TO RELEASE EVERY PRISONER WHO ALLEGES IN COLLATERAL PROCEEDINGS
SOME CONSTITUTIONAL FLAW, REGARDLESS OF ITS NATURE, REGARDLESS OF HIS
GUILT OR INNOCENCE, AND REGARDLESS OF THE CIRCUMSTANCES OF THE CASE. 
THE COURT'S OPINION IN NOIA SHOWS, FROM BEGINNING TO END, THAT THE
DEFENDANT'S GUILT OR INNOCENCE IS AT LEAST ONE OF THE VITAL
CONSIDERATIONS IN DETERMINING WHETHER COLLATERAL RELIEF SHOULD BE
AVAILABLE TO A CONVICTED DEFENDANT.  THE COURT REPEATEDLY EMPHASIZED
THAT THE ONLY EVIDENCE AGAINST NOIA WAS A COERCED CONFESSION AND THAT
HE REMAINED IN JAIL WHILE THE STATE PERMITTED HIS ALLEGED CONFEDERATES
TO GO FREE.  THE COURT MADE IT CLEAR THAT EQUITABLE CONSIDERATIONS SUCH
AS THESE SHOULD PLAY A PART IN DETERMINING THE AVAILABILITY OF FEDERAL
HABEAS CORPUS: 

     "ALTHOUGH WE HOLD THAT THE JURISDICTION OF THE FEDERAL COURTS

  ON HABEAS IS NOT AFFECTED BY PROCEDURAL DEFAULTS INCURRED BY THE

  APPLICANT DURING THE STATE COURT PROCEEDINGS, WE RECOGNIZE A

  LIMITED DISCRETION IN THE FEDERAL JUDGE TO DENY RELIEF TO AN

APPLICANT UNDER CERTAIN CIRCUMSTANCES.  DISCRETION IS IMPLICIT IN

  THE STATUTORY COMMAND THAT THE JUDGE, AFTER GRANTING THE WRIT AND

  HOLDING A HEARING OF APPROPRIATE SCOPE, 'DISPOSE OF THE MATTER AS

  LAW AND JUSTICE REQUIRE,' 28 U.S.C. 2243; AND DISCRETION WAS THE

  FLEXIBLE CONCEPT EMPLOYED BY THE FEDERAL COURTS IN DEVELOPING THE

  EXHAUSTION RULE.  FURTHERMORE, HABEAS CORPUS HAS TRADITIONALLY

  BEEN REGARDED AS GOVERNED BY EQUITABLE PRINCIPLES."  /4/

AND IN ITS CLOSING PARAGRAPH, THE COURT STRESSED: 

"TODAY AS ALWAYS FEW INDEED IS THE NUMBER OF STATE PRISONERS WHO
EVENTUALLY WIN THEIR FREEDOM BY MEANS OF FEDERAL HABEAS CORPUS.  THOSE
FEW WHO ARE ULTIMATELY SUCCESSFUL ARE PERSONS WHOM SOCIETY HAS
GRIEVOUSLY WRONGED AND FOR WHOM BELATED LIBERATION IS LITTLE ENOUGH
COMPENSATION."  /5/ SURELY, IT CANNOT BE SAID OF KAUFMAN, AN ADMITTED
ARMED ROBBER, THAT HE IS A PERSON WHOM "SOCIETY HAS GRIEVOUSLY WRONGED
AND FOR WHOM BELATED LIBERATION IS LITTLE ENOUGH COMPENSATION." 

ALTHOUGH, AS THE COURT OF APPEALS INDICATED IN THE THORNTON CASE,
HABEAS CORPUS HAS BEEN THOUGHT OF BROADLY AS A MEANS OF SECURING
REDRESS FOR THE VIOLATION OF ANY "CONSTITUTIONAL RIGHT," IT WAS TRUE
UNTIL MAPP V. OHIO, 367 U.S. 643 (1961), THAT ALMOST EVERY
"CONSTITUTIONAL RIGHT" REFERRED TO IN THIS SENSE PLAYED A CENTRAL ROLE
IN ASSURING THAT THE TRIAL WOULD BE A RELIABLE MEANS OF TESTING GUILT. 
IT IS TRUE THAT THE PROHIBITION AGAINST COERCED CONFESSIONS HAS BEEN
VIGOROUSLY ENFORCED EVEN IN THE ABSENCE OF PROOF THAT THE CONFESSION
ITSELF WAS UNRELIABLE, E.G., ROGERS V. RICHMOND, 365 U.S. 534 (1961),
BUT EVEN THIS PROHIBITION RESTS TO A SUBSTANTIAL EXTENT ON RECOGNITION
THAT ALL SUCH CONFESSIONS "MAY BE AND HAVE BEEN, TO AN UNASCERTAINED
EXTENT, FOUND TO BE UNTRUSTWORTHY," ID., AT 541. 

A CLAIM OF ILLEGAL SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT IS
CRUCIALLY DIFFERENT FROM MANY OTHER CONSTITUTIONAL RIGHTS; ORDINARILY
THE EVIDENCE SEIZED CAN IN NO WAY HAVE BEEN RENDERED UNTRUSTWORTHY BY
THE MEANS OF ITS SEIZURE AND INDEED OFTEN THIS EVIDENCE ALONE
ESTABLISHES BEYOND VIRTUALLY ANY SHADOW OF A DOUBT THAT THE DEFENDANT
IS GUILTY.  A GOOD EXAMPLE OF SUCH A CASE IS ONE IN WHICH I FILED A
DISSENT TODAY, HARRIS V. NELSON, POST, P. 286.  THE PRISONER IN HARRIS
WAS CONVICTED ON A CHARGE THAT HE HAD BEEN IN POSSESSION OF MARIHUANA,
POSSESSION ALONE BEING A CRIME UNDER STATE LAW.  HE LATER COLLATERALLY
ATTACKED THAT CONVICTION, ALLEGING THAT THE MARIHUANA HAD BEEN
UNLAWFULLY SEIZED FROM HIS HOME WHERE HE HAD BEEN IN ILLEGAL POSSESSION
OF IT.  HE DID NOT AND EVIDENTLY COULD NOT ALLEGE A SINGLE FACT THAT
WOULD INDICATE THE SLIGHTEST POSSIBILITY THAT HE ACTUALLY WAS INNOCENT
OF THE CRIME CHARGED.  UNDER THESE CIRCUMSTANCES IT IMPLIES NO
DISRESPECT FOR THE IMPORTANCE OF THE FOURTH AMENDMENT TO RECOGNIZE THE
SIMPLE PROPOSITION THAT TREATMENT OF SEARCH-AND-SEIZURE CLAIMS SHOULD
CORRESPOND TO THE PURPOSE OF THE FOURTH AMENDMENT EXCLUSIONARY RULE. 
AS THE COURT OF APPEALS SAID IN THORNTON:  /6/ 

     "OUR REJECTION OF THE AVAILABILITY OF COLLATERAL REVIEW FOR

  CLAIMS OF UNREASONABLE SEARCH AND SEIZURE (IN THE ABSENCE OF

  EXCEPTIONAL CIRCUMSTANCES) IS NOT ATTRIBUTABLE TO A LOW REGARD

  FOR THE SIGNIFICANCE OF THE FOURTH AMENDMENT IN OUR TIMES AND

  CIVILIZATION.  ON THE CONTRARY, THE MAGNITUDE OF THE FOURTH

  AMENDMENT IN OUR CONSTITUTIONAL CONSTELLATION HAS PROMPTED

UNUSUAL REMEDIES BY CONGRESS, AS WELL AS THE COURTS . . . 

      " . . . THE COROLLARY, HOWEVER, IS A CONTRACTION OF THE NEED

  FOR ENLARGING COLLATERAL REVIEW IN ORDER TO ASSURE EFFECTIVE

  VINDICATION OF THE CONSTITUTIONAL INTERESTS INVOLVED." 

THE PURPOSE OF THE EXCLUSIONARY RULE, UNLIKE MOST PROVISIONS OF THE
BILL OF RIGHTS, DOES NOT INCLUDE, EVEN TO THE SLIGHTEST DEGREE, THE
GOAL OF INSURING THAT THE GUILT-DETERMINING PROCESS BE RELIABLE. 
RATHER, AS THIS COURT HAS SAID TIME AND AGAIN, THE RULE HAS ONE PRIMARY
AND OVERRIDING PURPOSE, THE DETERRENCE OF UNCONSTITUTIONAL SEARCHES AND
SEIZURES BY THE POLICE.  AS THE COURT SAID IN LINKLETTER V. WALKER, 381
U.S. 618, 636-637 (1965): 

"MAPP HAD AS ITS PRIME PURPOSE THE ENFORCEMENT OF THE FOURTH
AMENDMENT THROUGH THE INCLUSION OF THE EXCLUSIONARY RULE WITHIN ITS
RIGHTS.  THIS, IT WAS FOUND, WAS THE ONLY EFFECTIVE DETERRENT TO
LAWLESS POLICE ACTION.  INDEED, ALL OF THE CASES SINCE WOLF (V.
COLORADO, 338 U.S. 25 (1949)) REQUIRING THE EXCLUSION OF ILLEGAL
EVIDENCE HAVE BEEN BASED ON THE NECESSITY FOR AN EFFECTIVE DETERRENT TO
ILLEGAL POLICE ACTION." 

HOW THIS PURPOSE CAN BE SERVED BY THE BROAD AND UNQUALIFIED RULE
ADOPTED BY

  THE COURT TODAY IS SOMETHING OF A MYSTERY.  OF COURSE, THE
SHORTCOMINGS INHERENT IN ANY HUMAN SYSTEM MAKE IT IMPOSSIBLE TO
ELIMINATE ENTIRELY ALL THE INCENTIVES TO CONDUCT AN ILLEGAL SEARCH.  IT
WOULD SEEM RATHER FANCIFUL, HOWEVER, TO SUGGEST THAT THESE INEVITABLE
INCENTIVES WOULD BE DECREASED TO ANY SIGNIFICANT EXTENT BY THE FACT
THAT IF A CONVICTION IS OBTAINED, AFTER ADEQUATE OPPORTUNITIES HAVE
BEEN PROVIDED TO LITIGATE CONSTITUTIONAL CLAIMS, AND IF THIS CONVICTION
IS UPHELD BY ALL THE REVIEWING COURTS, THE VALIDITY OF THE SEARCH AND
SEIZURE MAY LATER BE QUESTIONED IN A COLLATERAL PROCEEDING. 
UNDERSTANDABLY, THE COURT DOES NOT MAKE ANY SUCH SUGGESTION AND INDEED
MAKES NO EFFORT TO JUSTIFY ITS RESULT IN TERMS OF THE LONG-RECOGNIZED
DETERRENT PURPOSE OF THE EXCLUSIONARY RULE.  THE COURT INSTEAD SIMPLY
PROVIDES US WITH A STRING OF CITATIONS THAT SUPPOSEDLY SETTLE THE
QUESTION, AT LEAST AS TO STATE CONVICTIONS, ANTE, AT 225, BUT THE COURT
NEGLECTS TO MENTION THAT NOT ONE OF THE CASES IT CITES CONTAINS A
SINGLE INTIMATION THAT THE ISSUE BEFORE US NOW WAS EVEN CONSIDERED. 
/7/ 

THE ONLY OTHER JUSTIFICATION FOR THE COURT'S RESULT THAT CAN BE
GLEANED FROM ITS OPINION IS THE STATEMENT THAT THE REASONING OF THE
COURT OF APPEALS IN THORNTON "EXALTS THE VALUE OF FINALITY IN CRIMINAL
JUDGMENTS AT THE EXPENSE OF INTEREST OF EACH PRISONER IN THE
VINDICATION OF HIS CONSTITUTIONAL RIGHTS."  ANTE, AT 228.  THIS
ASTONISHING STATEMENT IS DIRECTLY CONTRARY TO THE PRINCIPLES THIS COURT
HAS CONSISTENTLY APPLIED ON THIS SUBJECT, AS FOR EXAMPLE IN ELKINS V.
UNITED STATES, 364 U.S. 206, 217 (1960), WHERE WE SAID:  "THE
(EXCLUSIONARY) RULE IS CALCULATED TO PREVENT, NOT TO REPAIR.  ITS
PURPOSE IS TO DETER-- TO COMPEL RESPECT FOR THE CONSTITUTIONAL GUARANTY
IN THE ONLY EFFECTIVELY AVAILABLE WAY-- BY REMOVING THE INCENTIVE TO
DISREGARD IT."  THIS SAME RECOGNITION THAT NO PERSONAL RIGHT OF THE
PRISONER CAN BE VINDICATED IN THESE FOURTH AMENDMENT CASES WAS STRESSED
IN THIS COURT'S OPINION IN LINKLETTER, SUPRA:  "WE CANNOT SAY THAT THIS
(DETERRENT) PURPOSE WOULD BE ADVANCED BY MAKING THE RULE
RETROSPECTIVE.  THE MISCONDUCT OF THE POLICE PRIOR TO MAPP HAS ALREADY
OCCURRED AND WILL NOT BE CORRECTED BY RELEASING THE PRISONERS INVOLVED
. . . FINALLY, THE RUPTURED PRIVACY OF THE VICTIMS' HOMES AND EFFECTS
CANNOT BE RESTORED.  REPARATION COMES TOO LATE."  381 U.S.,AT 637. 

THE COURT'S CONSISTENT ADHERENCE TO THIS APPROACH HAS CONTINUED
THROUGH ALL OF THE VARIOUS "RETROACTIVITY" CASES, INCLUDING TODAY'S
DECISION IN DESIST V. UNITED STATES, POST, P. 244, IN WHICH THE COURT
EMPHASIZES, QUOTING FROM LINKLETTER, THAT "'(THE MISCONDUCT OF THE
POLICE . . . HAS ALREADY OCCURRED AND WILL NOT BE CORRECTED BY
RELEASING THE PRISONERS INVOLVED,'" AND THAT "THE EXCLUSIONARY RULE IS
BUT A 'PROCEDURAL WEAPON THAT HAS NO BEARING ON GUILT.'"  IT WOULD BE
HARD TO FIND A MORE APT SUMMARY OF THIS COURT'S HOLDINGS IN THESE
"RETROACTIVITY" CASES THAN THE STATEMENT THAT THEY "EXALT) THE VALUE OF
FINALITY IN CRIMINAL JUDGMENTS AT THE EXPENSE OF THE INTEREST OF EACH
PRISONER IN THE VINDICATION OF HIS CONSTITUTIONAL RIGHTS."  BUT SINCE
THIS IS THE COURSE THE COURT HAS CHOSEN TO STEER, I THINK IT WOULD NOT
BE AMISS TO SUGGEST THAT THE COURT AT LEAST DECIDE THIS CASE ON THE
SAME PRINCIPLES AND SEEK TO ACHIEVE A MODEST SEMBLANCE OF CONSISTENCY. 
INSTEAD THE COURT ADOPTS A RULE THAT OFFERS NO DISCERNIBLE BENEFITS IN
ENFORCING THE FOURTH AMENDMENT AND INSURES THAT PRISONERS WHO ARE
UNDOUBTEDLY GUILTY WILL BE SET FREE. 

IT IS SEEMINGLY BECOMING MORE AND MORE DIFFICULT TO GAIN ACCEPTANCE
FOR THE PROPOSITION THAT PUNISHMENT OF THE GUILTY IS DESIRABLE, OTHER
THINGS BEING EQUAL.  ONE COMMENTATOR, WHO ATTEMPTED IN VAIN TO DISSUADE
THIS COURT FROM TODAY'S HOLDING, THOUGH IT NECESSARY TO POINT OUT THAT
THERE IS "A STRONG PUBLIC INTEREST IN CONVICTING THE GUILTY."  /8/
INDEED THE DAY MAY SOON COME WHEN THE EVER-CAUTIOUS LAW REVIEWS WILL
ACTUALLY BE FORCED TO OFFER THE TIMID AND UNCERTAIN CONTENTION,
RECENTLY SUGGESTED SATIRICALLY, THAT "CRIME MAY BE THOUGHT SOCIALLY
UNDESIRABLE, AND ITS CONTROL A 'VALID GOVERNMENTAL OBJECTIVE' TO WHICH
THE CRIMINAL LAW IS 'RATIONALLY RELATED.'"  /9/ 

I CANNOT AGREE TO A RULE, HOWEVER TECHNICAL IT MAY SEEM, THAT LEADS
TO THESE RESULTS.  I WOULD NOT LET ANY CRIMINAL CONVICTION BECOME
INVULNERABLE TO COLLATERAL ATTACK WHERE THERE IS LEFT REMAINING THE
PROBABILITY OR POSSIBILITY THAT CONSTITUTIONAL COMMANDS RELATED TO THE
INTEGRITY OF THE FACT-FINDING PROCESS HAVE BEEN VIOLATED.  IN SUCH
SITUATIONS SOCIETY HAS FAILED TO PERFORM ITS OBLIGATION TO PROVE BEYOND
A REASONABLE DOUBT THAT THE DEFENDANT COMMITTED THE CRIME.  BUT IT IS
QUITE A DIFFERENT THING TO PERMIT COLLATERAL ATTACK ON A CONVICTION
AFTER A TRIAL ACCORDING TO DUE PROCESS WHEN THE DEFENDANT CLEARLY IS,
BY THE PROOF AND BY HIS OWN ADMISSION, GUILTY OF THE CRIME CHARGED. 
THERE MAY, OF COURSE, AS THE COURT OF APPEALS HELD IN THE THORNTON
CASE, BE SOME SPECIAL CIRCUMSTANCES IN WHICH ALLOWANCE OF A FOURTH
AMENDMENT CLAIM IN A COLLATERAL PROCEEDING WOULD BE JUSTIFIED IN TERMS
OF THE RELEVANT AND APPLICABLE CONSTITUTIONAL PRINCIPLES.  SOME OF THE
SITUATIONS POSSIBLY FALLING IN THIS CATEGORY HAVE BEEN ENUMERATED AND
EXAMINED BY OTHERS, /10/  AND THERE ARE CIRCUMSTANCES ALLEGED HERE THAT
MIGHT LEAD TO SUCH A DISPOSITION OF THIS CASE.  /11/  BUT THE COURT
DOES NOT REST ITS JUDGMENT ON THIS NARROW GROUND, AND I THEREFORE DO
NOT ATTEMPT TO PASS ON IT.  I DO CONTEND, HOWEVER, THAT THE COURT BELOW
WAS RIGHT IN REFUSING TO FOLLOW THE BROAD RULE THAT THIS COURT IS
ANNOUNCING TODAY.  IN COLLATERAL ATTACKS WHETHER BY HABEAS CORPUS OR BY
SEC. 2255 PROCEEDINGS, I WOULD ALWAYS REQUIRE THAT THE CONVICTED
DEFENDANT RAISE THE KIND OF CONSTITUTIONAL CLAIM THAT CASTS SOME SHADOW
OF A DOUBT ON HIS GUILT.  THIS DEFENDANT IS PERMITTED TO ATTACK HIS
CONVICTION COLLATERALLY ALTHOUGH HE CONCEDED AT THE TRIAL AND DOES NOT
NOW DENY THAT HE HAD ROBBED THE SAVINGS AND LOAN ASSOCIATION AND
ALTHOUGH THE EVIDENCE MAKES ABSOLUTELY CLEAR THAT HE KNEW WHAT HE WAS
DOING.  THUS, HIS GUILT BEING CERTAIN, SURELY HE DOES NOT HAVE A
CONSTITUTIONAL RIGHT TO GET A NEW TRIAL.  I CANNOT POSSIBLE AGREE WITH
THE COURT. 

/1/  "IF THE COURT FINDS THAT THE JUDGMENT WAS RENDERED WITHOUT
JURISDICTION, OR THAT THE SENTENCE IMPOSED WAS NOT AUTHORIZED BY LAW OR
OTHERWISE OPEN TO COLLATERAL ATTACK, OR THAT THERE HAS BEEN SUCH A
DENIAL OR INFRINGEMENT OF THE CONSTITUTIONAL RIGHTS OF THE PRISONER AS
TO RENDER THE JUDGMENT VULNERABLE TO COLLATERAL ATTACK, THE COURT SHALL
VACATE AND SET THE JUDGMENT ASIDE AND SHALL DISCHARGE THE PRISONER OR
RESENTENCE HIM OR GRANT ANEW TRIAL OR CORRECT THE SENTENCE AS MAY
APPEAR APPROPRIATE."  28 U.S.C. 2255. 

/2/  125 U.S.APP.D.C.,AT 116-118, 368 F.2D,AT 824-826. 

/3/  SEE MISHKIN, THE SUPREME COURT, 1964 TERM-- FORWARD:  THE HIGH
COURT, THE GREAT WRIT, AND THE DUE PROCESS OF TIME AND LAW, 79
HARV.L.REV.  56, 79-86 (1965). 

/4/  372 U.S. 391,438. 

/5/  ID., AT 440-441 

/6/ 125 U.S.APP.D.C.,AT 118, 368 F.2D,AT 826. 

/7/  ONLY ONE OF THESE DECISIONS, MANCUSI V. DEFORTE, 392 U.S. 364
(1968), ACTUALLY ORDERED THE GRANTING OF HABEAS RELIEF ON THE BASIS OF
A SEARCH-AND-SEIZURE CLAIM, AND IN MANCUSI (AS IN WARDEN V. HAYDEN, 387
U.S. 294 (1967)) THE ISSUE WAS NOT EVEN THEORETICALLY BEFORE US SINCE
ONLY IN THE MOST EXCEPTIONAL CASE WOULD WE HAVE CONSIDERED A QUESTION
NOT MENTIONED IN THE STATE WARDEN'S PETITION FOR A WRIT OF CERTIORARI. 

/8/  AMSTERDAM, SEARCH, SEIZURE, AND SECTION 2255:  A COMMENT, 112
U.PA.L.REV.  378, 389 (1964). 

/9/  79 HARV L.REV.  (PARODY ED.)  10, 12 (MARCH 1966). 

/10/  THORNTON V. UNITED STATES, SUPRA; AMSTERDAM, SUPRA, N. 8, AT
391-392, N. 60. 

/11/  PETITIONER'S ALLEGATIONS SUGGEST THAT HE MAY HAVE BEEN
UNJUSTIFIABLY FRUSTRATED IN HIS EFFORTS TO RAISE THE SEARCH-AND-SEIZURE
ISSUE ON DIRECT APPEAL FROM HIS CONVICTION.  SEE THE COURT'S OPINION,
ANTE, AT 220, N. 3. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

I CONCUR IN MUCH OF MY BROTHER BLACK'S OPINION, AND AGREE WITH HIS
CONCLUSION THAT 28 U.S.C. 2255 SHOULD BE AVAILABLE TO CONTEST THE
ADMISSION OF EVIDENCE ALLEGEDLY SEIZED IN VIOLATION OF THE FOURTH
AMENDMENT ONLY UNDER LIMITED AND SPECIAL CIRCUMSTANCES OF THE SORT
SUGGESTED IN THORNTON V. UNITED STATES, 125 U.S.APP.D.C. 114, 368 F.2D
822 (1966).  I MUST, HOWEVER, DISASSOCIATE MYSELF FROM ANY
IMPLICATIONS, SEE, E.G., ANTE, AT 232-233, 234-236, THAT THE
AVAILABILITY OF THIS COLLATERAL REMEDY TURNS ON A PETITIONER'S
ASSERTION THAT HE WAS IN FACT INNOCENT, OR ON THE SUBSTANTIALITY OF
SUCH AN ALLEGATION. 

I THINK IT APPROPRIATE TO ADD THAT THE MAIN ROOTS OF THE SITUATION
AGAINST WHICH MY BROTHER BLACK SO RIGHTLY INVEIGHS ARE TO BE FOUND IN
THE COURT'S DECISIONS IN TOWNSEND V. SAIN, 372 U.S. 293 (1963), AND FAY
V. NOIA, 372 U.S. 391 (1963), WHICH HAVE OPENED WIDE THE GATES TO
COLLATERAL RE-EXAMINATION OF BOTH STATE AND FEDERAL CRIMINAL
CONVICTIONS.  BE THAT AS IT MAY, THE PRESENT CASE OFFERS AN OPPORTUNITY
TO NARROW THE ENTRANCE IN A FAIR AND PRACTICABLE MANNER.  IN REJECTING
THE OPPORTUNITY, THE COURT ONCE AGAIN /1/  THIS TERM IMPOSES A BURDEN
ON THE JUDICIARY AND ON SOCIETY AT LARGE, WHICH RESULTS IN NO
LEGITIMATE BENEFIT TO THE PETITIONER AND DOES NOTHING TO SERVE THE
INTERESTS OF JUSTICE. 

I THEREFORE DISSENT FROM THE OPINION OF THE COURT. 

/1/  SEE MY DISSENT IN GARDNER V. CALIFORNIA, 393 U.S. 367, 371
(1969). 

BRUCE R. JACOB, BY APPOINTMENT OF THE COURT, 391 U.S. 901, ARGUED
THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

JOHN S. MARTIN, JR., ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
VINSON, AND BEATRICE ROSENBERG. 
..END :



















DESIST V. UNITED STATES, 394 U.S. 244 


       DESIST ET AL V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 SECOND CIRCUIT. 

        NO. 12.  ARGUED NOVEMBER 12, 1968.-- DECIDED MARCH 24,

           1969. 


THE DECISION IN KATZ V. UNITED STATES, 389 U.S. 347, WHICH HELD THAT
THE REACH OF THE FOURTH AMENDMENT "CANNOT TURN UPON THE PRESENCE OR
ABSENCE OF A PHYSICAL INTRUSION INTO ANY GIVEN ENCLOSURE," AND THAT
EVERY ELECTRONIC EAVESDROPPING UPON PRIVATE CONVERSATIONS IS A SEARCH
AND SEIZURE WHICH, AS A GENERAL RULE, CAN COMPLY WITH CONSTITUTIONAL
STANDARDS ONLY WHEN AUTHORIZED BY A MAGISTRATE ON A SHOWING OF PROBABLE
CAUSE UNDER PRECISE LIMITATIONS AND SAFEGUARDS, TO THE EXTENT THAT IT
DEPARTED FROM PREVIOUS HOLDINGS OF THE COURT, IS TO BE APPLIED
PROSPECTIVELY ONLY.  PP. 246-254. 

384 F.2D 889, AFFIRMED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE CONVICTED BY A JURY IN THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK OF CONSPIRING TO IMPORT AND CONCEAL
HEROIN IN VIOLATION OF THE FEDERAL NARCOTICS LAWS.  /1/  AN IMPORTANT
PART OF THE GOVERNMENT'S EVIDENCE CONSISTED OF TAPE RECORDINGS OF
CONVERSATIONS AMONG SEVERAL OF THE PETITIONERS IN A NEW YORK CITY HOTEL
ROOM.  THE TAPES WERE MADE BY FEDERAL OFFICERS IN THE ADJOINING ROOM BY
MEANS OF AN ELECTRONIC RECORDING DEVICE WHICH DID NOT PHYSICALLY
INTRUDE INTO THE PETITIONERS' ROOM.  /2/  BECAUSE THERE WAS NO
"TRESPASS" OR "ACTUAL INTRUSION INTO A CONSTITUTIONALLY PROTECTED
AREA," THE DISTRICT COURT AND THE COURT OF APPEALS REJECTED THE
PETITIONERS' ARGUMENT THAT THIS EVIDENCE WAS INADMISSIBLE BECAUSE THE
EAVESDROPPING HAD VIOLATED THEIR RIGHTS UNDER THE FOURTH AMENDMENT. 
THE CONVICTIONS WERE AFFIRMED, /3/  AND WE GRANTED CERTIORARI TO
CONSIDER THE CONSTITUTIONAL QUESTIONS THUS PRESENTED.  /4/ 

LAST TERM IN KATZ V. UNITED STATES, 389 U.S. 347, WE HELD THAT THE
REACH OF THE FOURTH AMENDMENT "CANNOT TURN UPON THE PRESENCE OR ABSENCE
OF A PHYSICAL INTRUSION INTO ANY GIVEN ENCLOSURE."  ID., AT 353. 
NOTHING THAT THE FOURTH AMENDMENT PROTECTS PEOPLE, NOT PLACES," ID., AT
351, WE OVERRULED CASES HOLDING THAT A SEARCH AND SEIZURE OF SPEECH
REQUIRES SOME TRESPASS OR ACTUAL PENETRATION OF A PARTICULAR
ENCLOSURE.  WE CONCLUDED THAT SINCE EVERY ELECTRONIC EAVESDROPPING UPON
PRIVATE CONVERSATIONS IS A SEARCH OR SEIZURE, IT CAN COMPLY WITH
CONSTITUTIONAL STANDARDS ONLY WHEN AUTHORIZED BY A NEUTRAL MAGISTRATE
UPON A SHOWING OF PROBABLE CAUSE AND UNDER PRECISE LIMITATIONS AND
APPROPRIATE SAFEGUARDS.  THE EAVESDROPPING IN THIS CASE WAS NOT CARRIED
OUT PURSUANT TO SUCH A WARRANT, AND THE CONVICTIONS MUST THEREFORE BE
REVERSED IF KATZ IS TO BE APPLIED TO ELECTRONIC SURVEILLANCE CONDUCTED
BEFORE THE DATE OF THAT DECISION.  WE HAVE CONCLUDED, HOWEVER, THAT TO
THE EXTENT KATZ DEPARTED FROM PREVIOUS HOLDINGS OF THIS COURT, IT
SHOULD BE GIVEN WHOLLY PROSPECTIVE APPLICATION.  ACCORDINGLY, AND
BECAUSE WE FIND NO MERIT IN ANY OF THE PETITIONERS' OTHER CHALLENGES TO
THEIR CONVICTIONS, WE AFFIRM THE JUDGMENT BEFORE US.  /5/ 

WE ARE MET AT THE OUTSET WITH THE PETITIONERS' CONTENTION THAT KATZ
DOES NOT ACTUALLY PRESENT A CHOICE BETWEEN PROSPECTIVE OR RETROACTIVE
APPLICATION OF NEW CONSTITUTIONAL DOCTRINE.  THE COURT IN THAT
DECISION, IT IS SAID, DID NOT DEPART FROM ANY EXISTING INTERPRETATION
OF THE CONSTITUTION, BUT MERELY CONFIRMED THE PREVIOUS DEMISE
"TRESPASSORY" SEARCHES AND THOSE IN WHICH THERE WAS NO PHYSICAL
PENETRATION OF THE PROTECTED PREMISES.  GOLDMAN V. UNITED STATES, 316
U.S. 129; OLMSTEAD V. UNITED STATES, 277 U.S. 438.  /6/  BUT THIS
CONTENTION MISCONSTRUES OUR OPINION IN KATZ.  OUR HOLDING THERE THAT
GOLDMAN AND OLMSTEAD "CAN NO LONGER BE REGARDED AS CONTROLLING," 389
U.S.,AT 353, RECOGNIZED THAT THOSE DECISIONS HAD NOT BEEN OVERRULED
UNTIL THAT DAY.  /7/  TRUE, THE PRINCIPLES THEY EXPRESSED HAD BEEN
MODIFIED.  THE BELIEF THAT AN ORAL CONVERSATION COULD NOT BE THE OBJECT
OF A "SEARCH" OR "SEIZURE"  HAD NOT SURVIVED.  /8/  AND IN SILVERMAN V.
UNITED STATES, 365 U.S. 505, WE HAD CAUTIONED THAT THE SCOPE OF THE
FOURTH AMENDMENT COULD NOT BE ASCERTAINED BY RESORT TO THE "ANCIENT
NICETIES OF TORT OR REAL PROPERTY LAW."  365 U.S.,AT 511.  BUT THE
ASSUMPTION PERSISTED THAT ELECTRONIC SURVEILLANCE DID NOT OFFEND THE
CONSTITUTION UNLESS THERE WAS AN "ACTUAL INTRUSION INTO A
CONSTITUTIONALLY PROTECTED AREA"  /9/  WHILE DECISIONS BEFORE KATZ MAY
HAVE REFLECTED GROWING DISSATISFACTION WITH THE TRADITIONAL TESTS OF
THE CONSTITUTIONAL VALIDITY OF ELECTRONIC SURVEILLANCE, /10/  THE COURT
CONSISTENTLY REITERATED THOSE TESTS AND DECLINED INVITATIONS TO ABANDON
THEM.  /11/  HOWEVER CLEARLY OUR HOLDING IN KATZ MAY HAVE BEEN
FORESHADOWED, IT WAS A CLEAR BREAK WITH THE PAST, AND WE ARE THUS
COMPELLED TO DECIDE WHETHER ITS APPLICATION SHOULD BE LIMITED TO THE
FUTURE. 

EVER SINCE LINKLETTER V. WALKER, 381 U.S. 618, 629, ESTABLISHED THAT
"THE CONSTITUTION NEITHER PROHIBITS NOR REQUIRES RETROSPECTIVE EFFECT"
FOR DECISIONS EXPOUNDING NEW CONSTITUTIONAL RULES AFFECTING CRIMINAL
TRIALS, THE COURT HAS VIEWED THE RETROACTIVITY OR NONRETROACTIVITY OF
SUCH DECISIONS AS A FUNCTION OF THREE CONSIDERATIONS.  AS WE MOST
RECENTLY SUMMARIZED THEM IN STOVALL V. DENNO, 388 U.S. 293, 297, 

"THE CRITERIA GUIDING RESOLUTION OF THE QUESTION IMPLICATE (A) THE
PURPOSE TO BE SERVED BY THE NEW STANDARDS, (B) THE EXTENT OF THE
RELIANCE BY LAW ENFORCEMENT AUTHORITIES ON THE OLD STANDARDS, AND (C)
THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A RETROACTIVE
APPLICATION OF THE NEW STANDARDS." 

FOREMOST AMONG THESE FACTORS IS THE PURPOSE TO BE SERVED BY THE NEW
CONSTITUTIONAL RULE.  /13/  THIS CRITERION STRONGLY SUPPORTS
PROSPECTIVITY FOR A DECISION AMPLIFYING THE EVIDENTIARY EXCLUSIONARY
RULE.  THUS, IT WAS PRINCIPALLY THE COURT'S ASSESSMENT OF THE PURPOSE
OF MAPP V. OHIO, 367 U.S. 643, WHICH LED IT IN LINKLETTER TO DENY THOSE
FINALLY CONVICTED THE BENEFIT OF MAPP'S EXTENSION OF THE EXCLUSIONARY
RULE TO THE STATES: 

"ALL OF THE CASES . . . REQUIRING THE EXCLUSION OF ILLEGAL EVIDENCE
HAVE BEEN BASED ON THE NECESSITY FOR AN EFFECTIVE DETERRENT TO ILLEGAL
POLICE ACTION . . . WE CANNOT SAY THAT THIS PURPOSE WOULD BE ADVANCED
BY MAKING THE RULE RETROSPECTIVE.  THE MISCONDUCT OF THE POLICE . . .
HAS ALREADY OCCURRED AND WILL NOT BE CORRECTED BY RELEASING THE
PRISONERS INVOLVED."  381 U.S.,AT 636-637.  /14/ 

WE FURTHER OBSERVED THAT, IN CONTRAST WITH DECISIONS WHICH HAD BEEN
ACCORDED RETROACTIVE EFFECT, /15/  "THERE IS NO LIKELIHOOD OF
UNRELIABILITY OR COERCION PRESENT IN A SEARCH-AND-SEIZURE CASE"; THE
EXCLUSIONARY RULE IS BUT A "PROCEDURAL WEAPON THAT HAS NO BEARING ON
GUILT," AND "THE FAIRNESS OF THE TRIAL IS NOT UNDER ATTACK."  381
U.S.,AT 638, 639.  FOLLOWING THIS REASONING OF LINKLETTER, WE RECENTLY
HELD IN FULLER V. ALASKA, 393 U.S. 80, THAT THE EXCLUSIONARY RULE OF
LEE V. FLORIDA, 392 U.S. 378, SHOULD BE ACCORDED ONLY PROSPECTIVE
APPLICATION.  ANALOGIZING LEE TO MAPP, WE CONCLUDED THAT EVIDENCE
SEIZED IN VIOLATION OF SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT /16/
WAS "NO LESS RELEVANT AND RELIABLE THAN THAT SEIZED IN VIOLATION OF THE
FOURTH AMENDMENT," AND THAT BOTH DECISIONS WERE MERELY "DESIGNED TO
ENFORCE THE FEDERAL LAW."  393 U.S.,AT 81. 

THE SECOND AND THIRD FACTORS-- RELIANCE OF LAW ENFORCEMENT
OFFICIALS, AND THE BURDEN ON THE ADMINISTRATION OF JUSTICE THAT WOULD
FLOW FROM A RETROACTIVE APPLICATION-- ALSO MILITATE IN FAVOR OF
APPLYING KATZ PROSPECTIVELY.  KATZ FOR THE FIRST TIME EXPLICITLY
OVERRULED THE "PHYSICAL PENETRATION" AND "TRESPASS" TESTS ENUNCIATED IN
EARLIER DECISIONS OF THIS COURT.  OUR PERIODIC RESTATEMENTS OF THOSE
TESTS CONFIRMED THE INTERPRETATION THAT POLICE AND COURTS ALIKE HAD
PLACED ON THE CONTROLLING PRECEDENTS AND FULLY JUSTIFIED RELIANCE ON
THEIR CONTINUING VALIDITY.  NOR HAD OTHER COURTS THERETOFORE HELD THAT
THE PROHIBITIONS OF THE FOURTH AMENDMENT ENCOMPASSED "NON-TRESPASSORY"
ELECTRONIC SURVEILLANCE.  ON THE CONTRARY, ONLY A FEW MONTHS BEFORE THE
EAVESDROPPING IN THIS CASE, THE COURT OF APPEALS FOR THE SECOND CIRCUIT
HAD UPHELD THE INTRODUCTION OF ELECTRONIC EVIDENCE OBTAINED BY THE SAME
NARCOTICS AGENT WITH A VIRTUALLY IDENTICAL INSTALLATION.  UNITED STATES
V. PARDO-BOLLAND, 348 F.2D 316, CERT. DENIED, 382 U.S. 944. 

ALTHOUGH THERE APPARENTLY HAVE NOT BEEN MANY FEDERAL CONVICTIONS
BASED ON EVIDENCE GATHERED BY WARRANTLESS ELECTRONIC SURVEILLANCE, /17/
WE HAVE NO CAUSE TO DOUBT THAT THE NUMBER OF STATE CONVICTIONS
OBTAINED IN RELIANCE ON PRE-KATZ DECISIONS IS SUBSTANTIAL.  /18/
MOREOVER, THE DETERMINATION OF WHETHER A PARTICULAR INSTANCE OF
EAVESDROPPING LED TO THE INTRODUCTION OF TAINTED EVIDENCE AT TRIAL
WOULD IN MOST CASES BE A DIFFICULT AND TIME-CONSUMING TASK, WHICH,
PARTICULARLY WHEN ATTEMPTED LONG AFTER THE EVENT, WOULD IMPOSE A
WEIGHTY BURDEN ON ANY COURT.  CF. ALDERMAN V. UNITED STATES, ANTE, AT
180-185.  IT IS TO BE NOTED ALSO THAT WE HAVE RELIED HEAVILY ON THE
FACTORS OF THE EXTENT OF RELIANCE AND CONSEQUENT BURDEN ON THE
ADMINISTRATION OF JUSTICE ONLY WHEN THE PURPOSE OF THE RULE IN QUESTION
DID NOT CLEARLY FAVOR EITHER RETROACTIVITY OR PROSPECTIVITY.  /19/
BECAUSE THE DETERRENT PURPOSE OF KATZ OVERWHELMINGLY SUPPORTS
NONRETROACTIVITY, WE WOULD REACH THAT RESULT EVEN IF RELATIVELY FEW
CONVICTIONS WOULD BE SET ASIDE BY ITS RETROACTIVE APPLICATION. 

THE PETITIONERS ARGUE THAT EVEN IF KATZ IS NOT GIVEN FULLY
RETROSPECTIVE EFFECT, AT LEAST IT SHOULD GOVERN THOSE CASES WHICH, LIKE
THE PETITIONERS', WERE PENDING ON DIRECT REVIEW WHEN KATZ WAS DECIDED. 
PETITIONERS POINT OUT THAT IN LINKLETTER, THE ONLY OTHER CASE INVOLVING
THE RETROACTIVITY OF A FOURTH AMENDMENT DECISION, THE COURT HELD MAPP
APPLICABLE TO EVERY CASE STILL PENDING ON DIRECT REVIEW ON THE DATE OF
THAT DECISION.  A SIMILAR APPROACH WAS ADOPTED IN TEHAN V. SCOTT, 382
U.S. 406, WITH RESPECT TO THE PROSPECTIVITY OF GRIFFIN V. CALIFORNIA,
380 U.S. 609.  IN JOHNSON V. NEW JERSEY, 384 U.S. 719, HOWEVER, WE
ABANDONED THE APPROACH TAKEN IN LINKLETTER AND TEHAN AND CONCLUDED THAT
"THERE ARE NO JURISPRUDENTIAL OR CONSTITUTIONAL OBSTACLES" TO THE
ADOPTION OF A DIFFERENT CUT-OFF POINT.  ID., AT 733.  WE EXPLAINED
THAT 

"(OUR HOLDINGS IN LINKLETTER AND TEHAN WERE NECESSARILY LIMITED TO
CONVICTIONS WHICH HAD BECOME FINAL BY THE TIME MAPP AND GRIFFIN WERE
RENDERED.  DECISIONS PRIOR TO LINKLETTER AND TEHAN HAD ALREADY
ESTABLISHED WITHOUT DISCUSSION THAT MAPP AND GRIFFIN APPLIED TO CASES
STILL ON DIRECT APPEAL AT THE TIME THEY WERE ANNOUNCED."  ID., AT 732. 
/20/ HERE, ON THE OTHER HAND, AS IN JOHNSON, "THE POSSIBILITY OF
APPLYING (KATZ) ONLY PROSPECTIVELY IS YET AN OPEN ISSUE."  IBID. 

ALL OF THE REASONS FOR MAKING KATZ RETROACTIVE ALSO UNDERCUT ANY
DISTINCTION BETWEEN FINAL CONVICTIONS AND THOSE STILL PENDING ON
REVIEW.  BOTH THE DETERRENT PURPOSE OF THE EXCLUSIONARY RULE AND THE
RELIANCE OF LAW ENFORCEMENT OFFICERS FOCUS UPON THE TIME OF THE SEARCH,
NOT ANY SUBSEQUENT POINT IN THE PROSECUTION, AS THE RELEVANT DATE. 
EXCLUSION OF ELECTRONIC EAVESDROPPING EVIDENCE SEIZED BEFORE KATZ WOULD
INCREASE THE BURDEN ON THE ADMINISTRATION OF JUSTICE, WOULD OVERTURN
CONVICTIONS BASED ON FAIR RELIANCE UPON PRE-KATZ DECISIONS, AND WOULD
NOT SERVE TO DETER SIMILAR SEARCHES AND SEIZURES IN THE FUTURE. 

NOR CAN IT SENSIBLY BE MAINTAINED THAT THE COURT IS FORECLOSED BY
LINKLETTER IN THIS CASE, AS IT WAS NOT IN JOHNSON, SIMPLY BECAUSE KATZ,
LIKE MAPP, WAS A FOURTH AMENDMENT DECISION.  /21/  IN NEITHER
LINKLETTER NOR JOHNSON WAS IT INTIMATED THAT THE CUT-OFF POINTS THERE
ADOPTED DEPENDED IN ANY DEGREE ON THE CONSTITUTIONAL PROVISION
INVOLVED.  THERE IS, MOREOVER, A SIGNIFICANT DISTINCTION BETWEEN THE
MAPP AND KATZ DECISIONS.  MAPP DEALT SOLELY WITH THE APPLICABILITY OF
THE EXCLUSIONARY RULE TO THE STATES; "THE SITUATION BEFORE MAPP . . .
(WAS THAT) THE STATES AT LEAST KNEW THAT THEY WERE CONSTITUTIONALLY
FORBIDDEN FROM ENGAGING IN UNREASONABLE SEARCHES AND SEIZURES UNDER
WOLF V. COLORADO, 330 U.S. 25 (1949)."  /22/  BEFORE KATZ ON THE OTHER
HAND, "NON-TRESPASSORY" ELECTRONIC SURVEILLANCE WAS NOT THOUGHT TO FALL
WITHIN THE REACH OF THE FOURTH AMENDMENT.  /23/  THEREFORE, THIS CASE
LACKS WHATEVER IMPETUS THE KNOWINGLY UNCONSTITUTIONAL CONDUCT BY THE
STATES MAY HAVE PROVIDED IN LINKLETTER TO APPLY MAPP TO ALL PENDING
PROSECUTIONS. 

IN SUM, WE HOLD THAT KATZ IS TO BE APPLIED ONLY TO CASES IN WHICH
THE PROSECUTION SEEKS TO INTRODUCE THE FRUITS OF ELECTRONIC
SURVEILLANCE CONDUCTED AFTER DECEMBER 28, 1967.  /24/  SINCE THE
EAVESDROPPING IN THIS CASE OCCURRED BEFORE THAT DATE AND WAS CONSISTENT
WITH PRE-KATZ DECISIONS OF THIS COURT, THE CONVICTIONS MUST BE

        AFFIRMED. 

/1/  35 STAT. 614, AS AMENDED, 21 U.S.C. 173 PROVIDES IN PERTINENT
PART: 

"IT IS UNLAWFUL TO IMPORT OR BRING ANY NARCOTIC DRUG INTO THE UNITED
STATES OR ANY TERRITORY UNDER ITS CONTROL OR JURISDICTION . . . " 

21 U.S.C. 174 PROVIDES IN PERTINENT PART: 

"WHOEVER FRAUDULENTLY OR KNOWINGLY IMPORTS OR BRINGS ANY NARCOTIC
DRUG INTO THE UNITED STATES OR ANY TERRITORY UNDER ITS CONTROL OR
JURISDICTION, CONTRARY TO LAW, OR RECEIVES, CONCEALS, BUYS, SELLS, OR
IN ANY MANNER FACILITATES THE TRANSPORTATION, CONCEALMENT, OR SALE OF
ANY SUCH NARCOTIC DRUG AFTER BEING IMPORTED OR BROUGHT IN, KNOWING THE
SAME TO HAVE BEEN IMPORTED OR BROUGHT INTO THE UNITED STATES CONTRARY
TO LAW, OR CONSPIRES TO COMMIT ANY OF SUCH ACTS IN VIOLATION OF THE
LAWS OF THE UNITED STATES, SHALL BE IMPRISONED NOT LESS THAN FIVE OR
MORE THAN TWENTY YEARS AND, IN ADDITION, MAY BE FINED NOT MORE THAN
$20,000." 

/2/  THE ROOM OCCUPIED BY THE PETITIONERS WAS SEPARATED FROM THAT OF
THE AGENTS BY TWO DOORS WITH A SMALL AIR SPACE BETWEEN THEM.  ACCORDING
TO THE TESTIMONY OF THE FEDERAL AGENTS-- WHICH WAS PROPERLY CREDITED BY
BOTH COURTS BELOW AFTER AN EXHAUSTIVE HEARING THAT INCLUDED AN ACTUAL
RECONSTRUCTION OF THE EQUIPMENT IN THE HOTEL ROOM-- THE MICROPHONE WAS
TAPED TO THE DOOR ON THEIR SIDE.  THE FACE OF THE MICROPHONE WAS TURNED
TOWARD THE 3/8-INCH SPACE BETWEEN THE DOOR AND THE SILL, AND A TOWEL
WAS PLACED OVER THE MICROPHONE AND ALONG THE BOTTOM OF THE DOOR IN
ORDER TO MINIMIZE INTERFERENCE FROM SOUNDS IN THE AGENTS' ROOM.  A
CABLE WAS RUN FROM THE MICROPHONE TO AN AMPLIFIER AND TAPE RECORDER IN
THE BATHROOM ADJOINING THE AGENTS' ROOM.     PETITIONERS CONTEND THAT
THIS INSTALLATION WAS EQUIVALENT TO A PHYSICAL PENETRATION OF THE
PETITIONERS' ROOM BECAUSE THE AIRSPACE BETWEEN THE DOORS ACTED AS A
SOUND CHAMBER, THEREBY FACILITATING THE PICKUP OF THE CONVERSATIONS
NEXT DOOR.  WE ARE UNABLE, HOWEVER, TO DISTINGUISH THIS EAVESDROPPING
FROM THAT CONDONED IN GOLDMAN V. UNITED STATES, 316 U.S. 129, WHERE THE
AGENTS SIMPLY PLACED A SENSITIVE RECEIVER AGAINST THE PARTITION WALL. 
PETITIONERS' RELIANCE ON SILVERMAN V. UNITED STATES, 365 U.S. 505, IS
MISPLACED.  THE HEATING DUCT SYSTEM USED AS A SOUND CONDUCTOR BY THE
AGENTS IN THAT CASE WAS "AN INTEGRAL PART OF THE PREMISES OCCUPIED BY
THE PETITIONERS," 365 U.S.,AT 511, AND THE AGENTS HAD TO PENETRATE THE
PETITIONERS' HOUSE WITH A "SPIKE MICROPHONE" BEFORE THE HEATING DUCT
COULD BE THUS EMPLOYED. 

/3/  384 F.2D 889. 

/4/  390 U.S. 943. 

/5/  THE ONLY OTHER ISSUES WHICH WARRANT MENTION RELATE TO THE
GOVERNMENT'S DISCLOSURE TO THE COURT OF APPEALS OF TWO INSTANCES OF
ADMITTEDLY TRESPASSORY ELECTRONIC SURVEILLANCE AFFECTING THE
PETITIONERS.  THE COURT OF APPEALS OF TWO INSTANCES OF ADMITTEDLY
TRESPASSORY ELECTRONIC SURVEILLANCE AFFECTING THE PETITIONERS.  THE
COURT OF APPEALS REMANDED THE CASE TO THE DISTRICT COURT FOR A FULL
EVIDENTIARY HEARING ON THE SUBJECT MATTER OF THE DISCLOSURES.  THE
FIRST MONITORING EPISODE OCCURRED DURING 1962-1963, WHEN A DEVICE WAS
INSTALLED IN A FLORIDA RESTAURANT.  THE SURVEILLANCE WAS DIRECTED AT
THE OWNER OF THE RESTAURANT RATHER THAN AT ANY OF THE PETITIONERS, BUT
PETITIONER DIOGUARDI WAS OVERHEARD TALKING ABOUT THE OPERATIONS OF THE
RESTAURANT.  THE LOG SHEETS COVERING THE ENTIRE PERIOD OF SURVEILLANCE
WERE TURNED OVER TO THE DISTRICT JUDGE FOR IN CAMERA INSPECTION, AND
THOSE RELATING TO ANY CONVERSATIONS OF DIOGUARDI WERE FURNISHED TO THE
DEFENSE.  THE SECOND INSTANCE WAS AN ATTEMPTED BUGGING OF A RENTED CAR
USED BY PETITIONERS NEBBIA, DESIST, AND LEFRANC IN FURTHERANCE OF THE
CONSPIRACY.  AGAIN ALL RECORDS PERTAINING TO THIS EPISODE WERE TURNED
OVER TO THE DEFENSE. 

DISTRICT JUDGE PALMIERI, AFTER HOLDING AN EXTENSIVE HEARING AT WHICH
THE PETITIONERS WERE GRANTED UNRESTRAINED OPPORTUNITY TO INTRODUCE
EVIDENCE AND AND CROSS-EXAMINE WITNESSES, CONCLUDED THAT NONE OF THE
"EVIDENCE USED AGAINST (THE PETITIONERS) AT THE TRIAL WAS TAINTED BY AN
INVASION OF THEIR CONSTITUTIONAL RIGHTS."  277 F.SUPP.  690, 700. 
JUDGE PALMIERI FOUND THAT THE DIOGUARDI CONVERSATIONS OVERHEARD IN 1962
1963 WERE TOTALLY UNRELATED TO THE EVENTS OF THE CONSPIRACY, WHICH
TRANSPIRED OVER TWO YEARS LATER.  WITH REGARD TO THE SECOND INSTANCE,
HE FOUND THAT THE DEVICE INSTALLED IN THE RENTED CAR "DID NOT FUNCTION
AND THAT NOTHING COHERENT WAS OBTAINED."  ID., AT 692.  THE COURT OF
APPEALS HELD THAT THESE FINDINGS WERE SUPPORTED BY THE EVIDENCE AND
THAT THE PETITIONERS WERE ACCORDED ALL THE PROCEDURAL RIGHTS TO WHICH
THEY WERE ENTITLED.  WE AGREE.  SEE ALDERMAN V. UNITED STATES, ANTE, P.
165. 

/6/  SEE ALSO ON LEE V. UNITED STATES, 343 U.S. 747. 

/7/  SEE ALSO 389 U.S.,AT 362 (HARLAN, J., CONCURRING); 389 U.S.,AT
367, 372 (BLACK, J., DISSENTING). 

/8/  SEE, E.G., WONG SUN V. UNITED STATES, 371 U.S. 471, 485; LANZA
V. NEW YORK; 370 U.S. 139, 142; SILVERMAN V. UNITED STATES, 365 U.S.
505; IRVINE V. CALIFORNIA, 347 U.S. 128. 

/9/  SILVERMAN V. UNITED STATES, SUPRA, AT 512. 

/10/  IN KATZ, 389 U.S.,AT 353, FOR EXAMPLE, WE REFERRED TO OUR
PREVIOUS OBSERVATION IN WARDEN V. HAYDEN, 387 U.S. 294, 304, THAT "(THE
PREMISE THAT PROPERTY INTERESTS CONTROL THE RIGHT OF THE GOVERNMENT TO
SEARCH AND SEIZE HAS BEEN DISCREDITED." 

/11/  SEE BERGER V. NEW YORK, 388 U.S. 41, 44, 50-53, 64; CLINTON V.
VIRGINIA, 377 U.S. 158; LOPEZ V. UNITED STATES, 373 U.S. 427, 437-439;
SILVERMAN V. UNITED STATES, SUPRA, AT 510-512. 

/12/  SEE ALSO DESTEFANO V. WOODS, 392 U.S. 631; JOHNSON V. NEW
JERSEY, 384 U.S. 719, 727; TEHAN V. SHOTT, 382 U.S. 406, 413;
LINKLETTER V. WALKER, 381 U.S. 618, 629. 

/13/  SEE ROBERTS V. RUSSELL, 392 U.S. 293, 295; WITHERSPOON V.
ILLINOIS, 391 U.S. 510, 523, N. 22. 

/14/  IN OTHER AREAS WHERE RETROACTIVITY HAS BEEN DENIED THE
"PURPOSE" CRITERION OFFERED MUCH WEAKER SUPPORT.  CF. STOVALL V. DENNO,
388 U.S. 293, 298, WHERE IT WAS CONCEDED THAT "THE WADE AND GILBERT
RULES ALSO ARE AIMED AT AVOIDING UNFAIRNESS AT THE TRIAL BY ENHANCING
THE RELIABILITY OF THE FACT-FINDING PROCESS IN THE AREA OF
IDENTIFICATION EVIDENCE"; JOHNSON V. NEW JERSEY, 384 U.S. 719, 730,
WHERE IT WAS RECOGNIZED THAT "ESCOBEDO AND MIRANDA GUARD AGAINST THE
POSSIBILITY OF UNRELIABLE STATEMENTS IN EVERY INSTANCE OF IN-CUSTODY
INTERROGATION"; AND TEHAN V. SHOTT, 382 U.S. 406, 414, WHERE IT WAS
STATED THAT "THE 'PURPOSE' OF THE GRIFFIN RULE IS TO BE FOUND IN THE
WHOLE COMPLEX OF VALUES THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION
ITSELF REPRESENTS," INCLUDING "OUR REALIZATION THAT THE PRIVILEGE,
WHILE SOMETIMES 'A SHELTER TO THE GUILTY,' IS OFTEN 'A PROTECTION TO
THE INNOCENT.'"  ID., AT 414-415, N. 12. 

/15/  JACKSON V. DENNO, 378 U.S. 368; GIDEON V. WAINWRIGHT, 372 U.S.
335, GRIFFIN V. ILLINOIS, 351 U.S. 12. 

/16/  48 STATE.  1103, 47 U.S.C. 605. 

/17/  THE GOVERNMENT HAS INFORMED US IN ITS BRIEF THAT "(INSTEAD OF
A WHOLESALE RELEASE OF THOUSANDS OF CONVICTED FELONS, ONLY A RELATIVELY
SMALL NUMBER WOULD PROBABLY BE AFFECTED (BY A RETROACTIVE APPLICATION
OF KATZ), SINCE ELECTRONIC SURVEILLANCE HAS PLAYED A PART IN A LIMITED
NUMBER OF FEDERAL CASES." 

/18/  WE NOTED IN BERGER V. NEW YORK, 388 U.S. 41, 48-49, THAT ONLY
A HANDFUL OF STATES HAVE PROHIBITED OR REGULATED ELECTRONIC
SURVEILLANCE BY LAW ENFORCEMENT OFFICIALS. 

/19/  SEE DESTEFANO V. WOODS, 392 U.S. 631; STOVALL V. DENNO, 388
U.S. 293; JOHNSON V. NEW JERSEY, 384 U.S. 719.  CF. CASES CITED IN NO.
13, SUPRA. 

/20/  IN LINKLETTER ITSELF THE COURT NOTED THAT IT DEALT ONLY WITH
THE NARROW ISSUE WHETHER MAPP SHOULD BE APPLIED TO FINAL AS WELL AS
NONFINAL CONVICTIONS: 

"(MAPP) HAS ALSO BEEN APPLIED TO CASES STILL PENDING ON DIRECT
REVIEW AT THE TIME IT WAS RENDERED.  THEREFORE, IN THIS CASE, WE ARE
CONCERNED ONLY WITH WHETHER THE EXCLUSIONARY PRINCIPLE ENUNCIATED IN
MAPP APPLIES TO STATE COURT CONVICTIONS WHICH HAD BECOME FINAL BEFORE
RENDITION OF OUR OPINION."  381 U.S.,AT 622. 

MAPP HAD ALREADY BEEN APPLIED IN KER V. CALIFORNIA, 374 U.S. 23;
FAHY V. CONNECTICUT, 375 U.S. 85; STONER V. CALIFORNIA, 376 U.S. 483. 
GRIFFIN HAD BEEN APPLIED IN O'CONNOR V. OHIO, 382 U.S. 286, SHORTLY
BEFORE TEHAN WAS DECIDED. 

/21/  ACTUALLY, MAPP WAS, OF COURSE, DECIDED UNDER THE FOURTH AND
FOURTEENTH AMENDMENTS, WITH ONE NUMBER OF THE FIVE-MAN MAJORITY RELYING
AT LEAST IN PART ON THE FIFTH AMENDMENT.  367 U.S.,AT 661-666 (BLACK,
J., CONCURRING). 

/22/  JOHNSON V. NEW JERSEY, 384 U.S. 719, 731.  AND SEE TEHAN V.
SHOTT, 382 U.S. 406, 417. 

/23/ INDEED, SINCE THE FOURTH AMENDMENT PROHIBITS ONLY UNREASONABLE
SEARCHES AND SEIZURES, IT COULD BE ARGUED THAT THERE WAS, IN FACT, NO
FOURTH AMENDMENT VIOLATION IN THE PRESENT CASE.  THE LAW ENFORCEMENT
OFFICERS COULD CERTAINLY BE SAID TO HAVE BEEN ACTING "REASONABLY" IN
MEASURING THEIR CONDUCT BY THE RELEVANT FOURTH AMENDMENT DECISIONS OF
THIS COURT.  CF. KATZ V. UNITED STATES, 389 U.S. 347, 356; JAMES V.
UNITED STATES, 366 U.S. 213, 221-222, 245. 

/24/  THE DISSENTING OPINION OF MR. JUSTICE FORTAS SUGGESTS THAT OUR
HOLDING TODAY DENIES "THE BENEFIT OF A FUNDAMENTAL CONSTITUTIONAL
PROVISION, AND NOT MERELY OF COURT-MADE RULES IMPLEMENTING A
CONSTITUTIONAL MANDATE."  POST, AT 271.  TO THE CONTRARY, WE SIMPLY
DECLINE TO EXTEND THE COURT-MADE EXCLUSIONARY RULE TO CASES IN WHICH
ITS DETERRENT PURPOSE WOULD NOT BE SERVED.  THE EXCLUSIONARY RULE "HAS
NO BEARING ON GUILT" OR "THE FAIRNESS OF THE TRIAL."  LINKLETTER V.
WALKER, 381 U.S.,AT 638, 639. 

OF COURSE, KATZ HIMSELF BENEFITED FROM THE NEW PRINCIPLE ANNOUNCED
ON THAT DATE, AND, AS OUR BROTHER DOUGLAS OBSERVES, TO THAT EXTENT THE
DECISION HAS NOT TECHNICALLY BEEN GIVEN WHOLLY PROSPECTIVE
APPLICATION.  BUT, AS WE RECENTLY EXPLAINED IN STOVALL V. DENNO, 388
U.S. 293, 301, THE FACT THAT THE PARTIES INVOLVED IN THE DECISION ARE
THE ONLY LITIGANTS SO SITUATED WHO RECEIVE THE THE BENEFIT OF THE NEW
RULE IS "AN UNAVOIDABLE CONSEQUENCE OF THE NECESSITY THAT
CONSTITUTIONAL ADJUDICATIONS NOT STAND AS MERE DICTUM."  WHATEVER
INEQUITY MAY ARGUABLY RESULT FROM APPLYING THE NEW RULE TO THOSE
"CHANCE BENEFICIARIES" IS "AN INSIGNIFICANT COST FOR ADHERENCE TO SOUND
PRINCIPLES OF DECISION-MAKING."  IBID. 

MR. JUSTICE BLACK, WHILE ADHERING TO HIS DISSENT IN LINKLETTER V.
WALKER, 381 U.S. 618, 640 (1965), CONCURS IN THE AFFIRMANCE OF THE
JUDGMENT OF CONVICTIONS IN THIS CASE FOR THE REASONS STATED IN HIS
DISSENTING OPINION.  KATZ V. UNITED STATES, 389 U.S. 347, 364 (1967). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IT IS A MYSTERY TO ME WHY KATZ V. UNITED STATES, 389 U.S. 347, WHICH
WAS GIVEN RETROACTIVE EFFECT TO PETITIONER KATZ WILL NOT BE GIVEN
RETROACTIVE EFFECT TO PETITIONER DESIST AND HIS COPETITIONERS.  THAT
DOES NOT SEEM TO ME TO BE THE ADMINISTRATION OF JUSTICE WITH AN EVEN
HAND.  I WOULD UNDERSTAND TODAY'S RULING IF IN KATZ WE HAD ANNOUNCED A
NEW CONSTITUTIONAL SEARCH-AND-SEIZURE RULE TO BE APPLIED PROSPECTIVELY
IN ALL CASES.  BUT WE DID NOT DO THAT; NOR DID WE DO IT IN OTHER RECENT
CASES ANNOUNCING VARIATIONS OF OLD CONSTITUTIONAL DOCTRINE.  THE MOST
NOTORIOUS EXAMPLE IS MIRANDA V. ARIZONA, 384 U.S. 436, WHERE, AS I
RECALL, SOME 80 CASES WERE PRESENTED RAISING THE SAME QUESTION.  WE
TOOK FOUR OF THEM AND HELD THE REST AND THEN DISPOSED OF EACH OF THE
FOUR APPLYING THE NEW PROCEDURAL RULE RETROACTIVELY.  BUT AS RESPECTS
THE REST OF THE PENDING CASES WE DENIED ANY RELIEF.  JOHNSON V. NEW
JERSEY, 384 U.S. 719.  YET IT WAS SHEER COINCIDENCE THAT THOSE PRECISE
FOUR WERE CHOSEN.  ANY OTHER SINGLE CASE IN 

ALL THIS, AND MORE, WAS STATED BY MR. JUSTICE BLACK IN HIS DISSENT
IN LINKLETTER V. WALKER, 381 U.S. 618, 640, IN WHICH I CONCURRED.  IT
IS STATED AGAIN WITH CLARITY AND VIGOR BY MR. JUSTICE HARLAN IN TODAY'S
DISSENT, PART I OF WHICH I JOIN.  IT STILL REMAINS A MYSTERY HOW SOME
CONVICTED PEOPLE ARE GIVEN NEW TRIALS FOR UNCONSTITUTIONAL CONVICTIONS
AND OTHERS ARE KEPT IN JAIL WITHOUT ANY HOPE OF RELIEF THOUGH THEIR
COMPLAINTS ARE EQUALLY MERITORIOUS.  AT LEAST THE COURT SHOULD NOT SAY
AS RESPECTS KATZ THAT IT IS GIVEN "WHOLLY PROSPECTIVE APPLICATION,"
WHEN IT WAS MADE RETROACTIVE IN HIS CASE. 

THE PRETENSE THAT WE WERE BOUND IN KATZ TO APPLY THE NEW RULE
RETROACTIVELY TO THAT DEFENDANT OR NOT DECIDE THE CASE AT ALL, IS TO
TRANSPARENT TO NEED ANSWER.  SEE 1B J.MOORE,FEDERAL PRACTICE 191 (2D
ED. 1965); 1 K.DAVIS,ADMINISTRATIVE LAW TREATISE 5.09 (1958); LEVY,
REALIST JURISPRUDENCE AND PROSPECTIVE OVERRULING, 109 U.PA.L.REV.  1,
15; CURRIER, TIME AND CHANGE IN JUDGE-MADE LAW:  PROSPECTIVE
OVERRULING, 51 VA.L.REV.  201, 216-234 (1965). 

IN JOHNSON V. NEW JERSEY, 384 U.S. 719, 733, WHERE WE ANNOUNCED THAT
THE RULE IN MIRANDA SHOULD APPLY ONLY TO CASES COMMENCED AFTER THAT
DECISION HAD BEEN ANNOUNCED, WE SAID: 

"THERE ARE NO JURISPRUDENTIAL OR CONSTITUTIONAL OBSTACLES TO THE
RULE WE ARE ADOPTING HERE . . . IN APPROPRIATE PRIOR CASES WE HAVE
ALREADY APPLIED NEW JUDICIAL STANDARDS IN A WHOLLY PROSPECTIVE MANNER. 
SEE ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411
(1964); JAMES V. UNITED STATES, 366 U.S. 213 (1961)." 

WHERE THE SPIRIT IS STRONG, THERE HAS HERETOFORE BEEN NO IMPEDIMENT
TO PRODUCING ONLY DICTUM THROUGH A "CASE OR CONTROVERSY."  INDEED THAT
TRADITION STARTED WITH MARBURY V. MADISON, 1 CRANCH 137. 

MR. JUSTICE HARLAN, DISSENTING. 

IN THE FOUR SHORT YEARS SINCE WE EMBRACED THE NOTION THAT OUR
CONSTITUTIONAL DECISIONS IN CRIMINAL CASES NEED NOT BE RETROACTIVELY
APPLIED, LINKLETTER V. WALKER, 381 U.S. 618 (1965), /1/  WE HAVE
CREATED AN EXTRAORDINARY COLLECTION OF RULES TO GOVERN THE APPLICATION
OF THAT PRINCIPLE.  WE HAVE HELD THAT CERTAIN "NEW" RULES ARE TO BE
APPLIED TO ALL CASES THEN SUBJECT TO DIRECT REVIEW, LINKLETTER V.
WALKER, SUPRA; TEHAN V. SHOTT, 382 U.S. 406 (1966); CERTAIN OTHERS ARE
TO BE APPLIED TO ALL THOSE CASES IN WHICH TRIALS HAVE NOT YET
COMMENCED, JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966); CERTAIN OTHERS
ARE TO BE APPLIED TO ALL THOSE CASES IN WHICH THE TAINTED EVIDENCE HAS
NOT YET BEEN INTRODUCED AT TRIAL, FULLER V. ALASKA, 393 U.S. 80 (1968);
AND STILL OTHERS ARE TO BE APPLIED ONLY TO THE PARTY INVOLVED IN THE
CASE IN WHICH THE NEW RULE IS ANNOUNCED AND TO ALL FUTURE CASES IN
WHICH THE PROSCRIBED OFFICIAL CONDUCT HAS NOT YET OCCURRED.  STOVALL V.
DENNO, 388 U.S. 293 (1967); DESTEFANO V. WOODS, 392 U.S. 631 (1968). 

ALTHOUGH IT HAS MORE THAN ONCE BEEN SAID THAT "NEW" RULES AFFECTING
"THE VERY INTEGRITY OF THE FACT-FINDING PROCESS, ARE TO BE
RETROACTIVELY APPLIED, LINKLETTER V. WALKER, SUPRA, AT 639; SEE ALSO
TEHAN V. SHOTT, SUPRA, AT 416; FULLER V. ALASKA, SUPRA, AT 81, THIS
REQUIREMENT WAS ERODED TO SOME EXTENT IN JOHNSON V. NEW JERSEY, SUPRA,
AT 728-729, AND YET FURTHER IN STOVALL V. DENNO, SUPRA, AT 299; SEE
ALSO DESTEFANO V. WOODS, SUPRA.  AGAIN, ALTHOUGH IT HAS BEEN SAID THAT
A DECISION WILL BE RETROACTIVELY APPLIED WHEN IT HAS BEEN "CLEARLY
FORESHADOWED" IN OUR PRIOR CASE LAW, JOHNSON V. NEW JERSEY, SUPRA, AT
731; BERGER V. CALIFORNIA, 393 U.S. 314 (1969), THE COURT TODAY REJECTS
SUCH A CONTENTION.  ANTE, AT 248.  INDEED, THE COURT NOW ALSO DEPARTS
FROM PREEXISTING DOCTRINE IN REFUSING RETROACTIVE APPLICATION WITHIN
THE FEDERAL SYSTEM OF THE "NEW" RULE ULTIMATELY LAID DOWN IN KATZ V.
UNITED STATES, 389 U.S. 347 (1967), DESPITE ITS CONCESSION THAT
"RELATIVELY FEW" FEDERAL CASES WOULD HAVE TO BE RECONSIDERED.  COMPARE
ANTE, AT 251-252, WITH LINKLETTER V. WALKER, SUPRA, AT 637; TEHAN V.
SHOTT, SUPRA, AT 418-419; JOHNSON V. NEW JERSEY, SUPRA, AT 731-732;
STOVALL V. DENNO, SUPRA, AT 300.     I HAVE IN THE PAST JOINED IN SOME
OF THOSE OPINIONS WHICH HAVE, IN SO SHORT A TIME, GENERATED SO MANY
INCOMPATIBLE RULES AND INCONSISTENT PRINCIPLES.  I DID SO BECAUSE I
THOUGHT IT IMPORTANT TO LIMIT THE IMPACT OF CONSTITUTIONAL DECISIONS
WHICH SEEMED TO ME PROFOUNDLY UNSOUND IN PRINCIPLE.  I CAN NO LONGER,
HOWEVER, REMAIN CONTENT WITH THE DOCTRINAL CONFUSION THAT HAS
CHARACTERIZED OUR EFFORTS TO APPLY THE BASIC LINKLETTER PRINCIPLE. 
"RETROACTIVITY" MUST BE RETHOUGHT. 

        I.

RETROACTIVITY ON DIRECT REVIEW. 

UPON REFLECTION, I CAN NO LONGER ACCEPT THE RULE FIRST ANNOUNCED TWO
YEARS AGO IN STOVALL V. DENNO, SUPRA, HAD REAFFIRMED TODAY, WHICH
PERMITS THIS COURT TO APPLY A "NEW" CONSTITUTIONAL RULE ENTIRELY
PROSPECTIVELY, WHILE MAKING AN EXCEPTION ONLY FOR THE PARTICULAR
LITIGANT WHOSE CASE WAS CHOSEN AS THE VEHICLE FOR ESTABLISHING THAT
RULE.  INDEED, I HAVE CONCLUDED THAT LINKLETTER WAS RIGHT IN INSISTING
THAT ALL "NEW" RULES OF CONSTITUTIONAL LAW MUST AT A MINIMUM, BE
APPLIED TO ALL THOSE CASES WHICH ARE STILL SUBJECT TO DIRECT REVIEW BY
THIS COURT AT THE TIME THE "NEW" DECISION IS HANDED DOWN. 

MATTERS OF BASIC PRINCIPLE ARE AT STAKE.  IN THE CLASSICAL VIEW OF
CONSTITUTIONAL ADJUDICATION, WHICH I SHARE, CRIMINAL DEFENDANTS CANNOT
COME BEFORE THIS COURT SIMPLY TO REQUEST LARGESSE.  THIS COURT IS
ENTITLED TO DECIDE CONSTITUTIONAL ISSUES ONLY WHEN THE FACTS OF A
PARTICULAR CASE REQUIRE THEIR RESOLUTION FOR A JUST ADJUDICATION ON THE
MERITS.  SEE MARBURY V. MADISON, 1 CRANCH 137 (1803).  WE DO NOT
RELEASE A CRIMINAL FROM JAIL BECAUSE WE LIKE TO DO SO, OR BECAUSE WE
THINK IT WISE TO DO SO, BUT ONLY BECAUSE THE GOVERNMENT HAS OFFENDED
CONSTITUTIONAL PRINCIPLE IN THE CONDUCT OF HIS CASE.  AND WHEN ANOTHER
SIMILARLY SITUATED DEFENDANT COMES BEFORE US, WE MUST GRANT THE SAME
RELIEF OR GIVE A PRINCIPLED REASON FOR ACTING DIFFERENTLY.  WE DEPART
FROM THIS BASIC JUDICIAL TRADITION WHEN WE SIMPLY PICK AND CHOOSE FROM
AMONG SIMILARLY SITUATED DEFENDANTS THOSE WHO ALONE WILL RECEIVE THE
BENEFIT OF A "NEW" RULE OF CONSTITUTIONAL LAW. 

THE UNSOUND CHARACTER OF THE RULE REAFFIRMED TODAY IS PERHAPS BEST
EXPOSED BY CONSIDERING THE FOLLOWING HYPOTHETICAL.  IMAGINE THAT THE
SECOND CIRCUIT IN THE PRESENT CASE HAD ANTICIPATED THE LINE OF
REASONING THIS COURT SUBSEQUENTLY PURSUED IN KATZ V. UNITED STATES,
SUPRA, AT 352-353, CONCLUDING-- AS THIS COURT THERE DID-- THAT "THE
UNDERPINNINGS OF OLMSTEAD AND GOLDMAN HAVE BEEN SO ERODED BY OUR
SUBSEQUENT DECISIONS THAT THE 'TRESPASS' DOCTRINE THERE ENUNCIATED CAN
NO LONGER BE REGARDED AS CONTROLLING."  ID., AT 353.  WOULD WE HAVE
REVERSED THE CASE ON THE GROUND THAT THE PRINCIPLES THE SECOND CIRCUIT
HAD ANNOUNCED-- THOUGH IDENTICAL WITH THOSE IN KATZ-- SHOULD NOT
CONTROL BECAUSE KATZ IS NOT RETROACTIVE?  TO THE CONTRARY, I VENTURE TO
SAY THAT WE WOULD HAVE TAKEN SATISFACTION THAT THE LOWER COURT HAD
REACHED THE SAME CONCLUSION WE SUBSEQUENTLY DID IN KATZ.  IF A "NEW"
CONSTITUTIONAL DOCTRINE IS TRULY RIGHT, WE SHOULD NOT REVERSE LOWER
COURTS WHICH HAVE ACCEPTED IT; NOR SHOULD WE AFFIRM THOSE WHICH HAVE
REJECTED THE VERY ARGUMENTS WE HAVE EMBRACED.  ANYTHING ELSE WOULD
BELIE THE TRUISM THAT IT IS THE TASK OF THIS COURT, LIKE THAT OF ANY
OTHER, TO DO JUSTICE TO EACH LITIGANT ON THE MERITS OF HIS OWN CASE. 
IT IS ONLY IF OUR DECISIONS CAN BE JUSTIFIED IN TERMS OF THIS
FUNDAMENTAL PREMISE THAT THEY MAY PROPERLY BE CONSIDERED THE LEGITIMATE
PRODUCTS OF A COURT OF LAW, RATHER THAN THE COMMANDS OF A SUPER
LEGISLATURE. 

RE-EXAMINATION OF PRIOR DEVELOPMENTS IN THE FIELD OF RETROACTIVITY
LEADS ME IRRESISTIBLY TO THE CONCLUSION THAT THE ONLY SOLID DISPOSITION
OF THIS CASE LIES IN VACATING THE JUDGMENT OF THE COURT OF APPEALS AND
IN REMANDING THIS CASE TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT
OF KATZ. 

II. 

RETROACTIVITY ON HABEAS CORPUS. 

WHAT HAS ALREADY BEEN SAID IS, FROM MY STANDPOINT, ENOUGH TO DISPOSE
OF THE CASE BEFORE US.  ORDINARILY I WOULD NOT GO FURTHER.  BUT IN THIS
INSTANCE I CONSIDER IT DESIRABLE AND APPROPRIATE TO VENTURE SOME
OBSERVATIONS ON THE APPLICATION OF THE RETROACTIVITY DOCTRINE IN HABEAS
CORPUS CASES, UNDER THE PREVAILING SCOPE OF THE "GREAT WRIT" AS SET
FORTH IN THIS COURT'S 1963 DECISION IN FAY V. NOIA, 372 U.S. 391, AND
IN TODAY'S DECISION IN KAUFMAN V. UNITED STATES, ANTE, P. 217.  I
BELIEVE THIS COURSE IS FITTING BECAUSE NONE OF THE COURT'S PRIOR
RETROACTIVITY DECISIONS HAS FACED UP TO THE QUITE DIFFERENT FACTORS
WHICH SHOULD GOVERN THE APPLICATION OF RETROACTIVITY IN HABEAS CORPUS
CASES; BECAUSE THE RETROACTIVE APPLICATION OF KATZ IN HABEAS CORPUS
CASES WOULD SEEM TO BE FORECLOSED BY THE PRESENT DECISION; BECAUSE
PRINCIPLED HABEAS RETROACTIVITY NOW SEEMS TO ME TO DEMAND MUCH MORE
THAN THE "PURPOSE," "RELIANCE," AND JUDICIAL "ADMINISTRATION"
STANDARDS, ANTE, AT 249, WHICH HAVE SO FAR BEEN REGARDED AS THE TESTS
GOVERNING RETROACTIVITY IN DIRECT REVIEW AND HABEAS CORPUS CASES ALIKE;
AND BECAUSE THE RETROACTIVITY DOCTRINE IS STILL IN A DEVELOPING STAGE. 
IN WHAT ENSUES I SHALL SIMPLY TRY TO SUGGEST SOME OF THE CONSIDERATIONS
WHICH APPEAR TO ME TO LAY BARE THE COMPLEXITIES OF THE RETROACTIVITY
PROBLEM ON HABEAS WHICH I FEEL HAVE NOT BEEN SUFFICIENTLY EXPLORED IN
PAST DECISIONS, LEAVING EXPRESSION OF DEFINITIVE VIEWS UPON ANY OF SUCH
CONSIDERATIONS FOR FUTURE HABEAS CASES TO WHICH THEY ARE GERMANE. 

        A. 

WHILE, AS I HAVE ARGUED, A REVIEWING COURT HAS THE OBLIGATION TO
RULE UPON EVERY DECISIVE ISSUE PROPERLY RAISED BY THE PARTIES ON DIRECT
REVIEW, THE FEDERAL COURTS HAVE NEVER HAD A SIMILAR OBLIGATION ON
HABEAS CORPUS.  INDEED, UNTIL BROWN V. ALLEN, 344 U.S. 443 (1953),
FEDERAL COURTS COULD NEVER CONSIDER THE MERITS OF A CONSTITUTIONAL
CLAIM IF THE HABEAS PETITIONER HAD A FAIR OPPORTUNITY TO RAISE HIS
ARGUMENTS IN THE ORIGINAL PROCEEDING.  /2/  SEE MY DISSENT IN FAY V.
NOIA, SUPRA, AT 449-463; SEE ALSO BATOR, FINALITY IN CRIMINAL LAW AND
FEDERAL HABEAS CORPUS FOR STATE PRISONERS, 76 HARV.L.REV.  441, 463
(1963).  WITH HABEAS RESTRICTED IN THIS WAY, THE QUESTION OF APPLYING A
"NEW" CONSTITUTIONAL RULE TO CONVICTIONS WHICH HAD BECOME FINAL AROSE
SO INFREQUENTLY THAT THE RETROACTIVITY ISSUE COULD NOT BE CONSIDERED A
SIGNIFICANT ONE IN THOSE DAYS.  EVEN UNDER BROWN, THE RETROACTIVE
APPLICATION OF "NEW" RULES IN HABEAS CASES DID NOT SERVE TO ERODE THE
FINALITY OF CRIMINAL JUDGMENTS TO ANY SUBSTANTIAL DEGREE.  IT WAS THE
RARE CASE IN WHICH THE HABEAS PETITIONER HAD RAISED A "NEW"
CONSTITUTIONAL ARGUMENT BOTH AT HIS ORIGINAL TRIAL AND ON APPEAL.  YET
IT WAS ONLY IN SUCH A CASE THAT BROWN WOULD PERMIT A HABEAS COURT TO
APPLY THE "NEW" RULE.  CF. SUNAL V. LARGE, 332 U.S. 174 (1947). 

THE CONFLICT BETWEEN RETROACTIVITY AND FINALITY ONLY BECAME OF MAJOR
IMPORTANCE WITH THE COURT'S DECISION IN FAY V. NOIA, SUPRA.  FOR THE
FIRST TIME, IT WAS THERE HELD THAT, AT LEAST IN SOME INSTANCES, A
HABEAS PETITIONER COULD SUCCESSFULLY ATTACK HIS CONVICTION COLLATERALLY
DESPITE THE FACT THAT THE "NEW" RULE HAD NOT EVEN BEEN SUGGESTED IN THE
ORIGINAL PROCEEDINGS.  THUS, NOIA OPENED THE DOOR FOR LARGE NUMBER OF
PRISONERS TO RELITIGATE THEIR CONVICTIONS EACH TIME A "NEW"
CONSTITUTIONAL RULE WAS ANNOUNCED BY THIS COURT. 

I CONTINUE TO BELIEVE THAT NOIA, WHICH HAS BEEN GIVEN EVEN BROADER
SCOPE IN KAUFMAN V. UNITED STATES, SUPRA, CONSTITUTES AN INDEFENSIBLE
DEPARTURE BOTH FROM THE HISTORICAL PRINCIPLES WHICH DEFINED THE SCOPE
OF THE "GREAT WRIT" AND FROM THE PRINCIPLES OF FEDERALISM WHICH HAVE
FORMED THE BEDROCK OF OUR CONSTITUTIONAL DEVELOPMENT.  NEVERTHELESS, MY
VIEWS ON THIS SCORE HAVE NOT PREVAILED, AND PENDING RE-EXAMINATION OF
THE SCOPE OF HABEAS CORPUS, I BELIEVE MYSELF OBLIGED TO CONSIDER ON ITS
OWN BOTTOM THE RETROACTIVITY PROBLEM WHICH NOIA HAS SPAWNED, SINCE IT
IS A MATTER OF THE GREATEST IMPORTANCE IF THE INTEGRITY OF THE FEDERAL
JUDICIAL PROCESS IS TO BE MAINTAINED IN THIS ERA OF INCREASINGLY RAPID
CONSTITUTIONAL CHANGE. 

        B. 

THE GREATLY EXPANDED WRIT OF HABEAS CORPUS SEEMS AT THE PRESENT TIME
TO SERVE TWO PRINCIPAL FUNCTIONS.  SEE KAUFMAN V. UNITED STATES, SUPRA,
AT 229; MISHKIN, THE SUPREME COURT, 1964 TERM-- FOREWORD:  THE HIGH
COURT, THE GREAT WRIT, AND THE DUE PROCESS OF TIME AND LAW, 79
HARV.L.REV.  56, 77-101 (1965).  FIRST, IT SEEKS TO ASSURE THAT NO MAN
HAS BEEN INCARCERATED UNDER A PROCEDURE WHICH CREATES AN IMPERMISSIBLY
LARGE RISK THAT THE INNOCENT WILL BE CONVICTED.  IT FOLLOWS FROM THIS
THAT ALL "NEW" CONSTITUTIONAL RULES WHICH SIGNIFICANTLY IMPROVE THE PRE
EXISTING FACT-FINDING PROCEDURES ARE TO BE RETROACTIVELY APPLIED ON
HABEAS.  SEE MY BROTHER BLACK'S DISSENT IN KAUFMAN V. UNITED STATES,
SUPRA, AT 235-236.  THE NEW HABEAS, HOWEVER, IS NOT ONLY CONCERNED WITH
THOSE RULES WHICH SUBSTANTIALLY AFFECT THE FACT-FINDING APPARATUS OF
THE ORIGINAL TRIAL.  UNDER THE PREVAILING NOTIONS, KAUFMAN V. UNITED
STATES, SUPRA, AT 224-226, THE THREAT OF HABEAS SERVES AS A NECESSARY
ADDITIONAL INCENTIVE FOR TRIAL AND APPELLATE COURTS THROUGHOUT THE LAND
TO CONDUCT THEIR PROCEEDINGS IN A MANNER CONSISTENT WITH ESTABLISHED
CONSTITUTIONAL STANDARDS.  IN ORDER TO PERFORM THIS DETERRENCE
FUNCTION, THE HABEAS COURT NEED NOT, AS PRIOR CASES MAKE CLEAR,
NECESSARILY APPLY ALL "NEW"  CONSTITUTIONAL RULES RETROACTIVELY.  IN
THESE CASES, THE HABEAS COURT NEED ONLY APPLY THE CONSTITUTIONAL
STANDARDS THAT PREVAILED AT THE TIME THE ORIGINAL PROCEEDINGS TOOK
PLACE. 

THE THEORY THAT THE HABEAS PETITIONER IS ENTITLED TO THE LAW
PREVAILING AT THE TIME OF HIS CONVICTION IS, HOWEVER, ONE WHICH IS MORE
COMPLEX THAN THE COURT HAS SEEMINGLY RECOGNIZED.  FIRST, IT IS
NECESSARY TO DETERMINE WHETHER A PARTICULAR DECISION HAS REALLY
ANNOUNCED A "NEW" RULE AT ALL OR WHETHER IT HAS SIMPLY APPLIED A WELL
ESTABLISHED CONSTITUTIONAL PRINCIPLE TO GOVERN A CASE WHICH IS CLOSELY
ANALOGOUS TO THOSE WHICH HAVE BEEN PREVIOUSLY CONSIDERED IN THE PRIOR
CASE LAW.  ONLY A SHORT TIME AGO, FOR EXAMPLE, WE ATTEMPTED TO DEFINE
WITH MORE PRECISION THE CONDITIONS GOVERNING THE ISSUANCE OF A SEARCH
WARRANT UNDER THE FOURTH AMENDMENT.  SPINELLI V. UNITED STATES, 393
U.S. 410 (1969).  WHILE WE HAD NEVER PREVIOUSLY ENCOUNTERED THE PRECISE
SITUATION RAISED IN SPINELLI, OUR DECISION IN THAT CASE RESTED UPON THE
ESTABLISHED DOCTRINE THAT A MAGISTRATE MAY ISSUE A WARRANT ONLY WHEN HE
CAN JUDGE FOR HIMSELF THE VALIDITY OF THE AFFIANT'S CONCLUSION THAT
CRIMINAL ACTIVITY IS INVOLVED.  JOHNSON V. UNITED STATES, 333 U.S. 10,
14 (1948); AGUILAR V. TEXAS, 378 U.S. 108 (1964).  SURELY, IT COULD NOT
BE THOUGHT THAT SPINELLI SHOULD NOT BE RETROACTIVELY APPLIED UNDER THE
EXPANDED HABEAS PROCESS BECAUSE IT WAS NOT ANNOUNCED UNTIL 1969.  ONE
NEED NOT BE A RIGID PARTISAN OF BLACKSTONE TO RECOGNIZE THAT MANY,
THOUGH NOT ALL, OF THIS COURT'S CONSTITUTIONAL DECISIONS ARE GROUNDED
UPON FUNDAMENTAL PRINCIPLES WHOSE CONTENT DOES NOT CHANGE DRAMATICALLY
FROM YEAR TO YEAR, BUT WHOSE MEANINGS ARE ALTERED SLOWLY AND SUBTLY AS
GENERATION SUCCEEDS GENERATION.  IN SUCH A CONTEXT IT APPEARS VERY
DIFFICULT TO ARGUE AGAINST THE APPLICATION OF THE "NEW" RULE IN ALL
HABEAS CASES SINCE ONE COULD NEVER SAY WITH ANY ASSURANCE THAT THIS
COURT WOULD HAVE RULED DIFFERENTLY AT THE TIME THE PETITIONER'S
CONVICTION BECAME FINAL. 

IN THE KATZ CASE, HOWEVER, ONE CAN SAY WITH ASSURANCE THAT THERE WAS
A TIME AT WHICH THIS COURT WOULD HAVE RULED DIFFERENTLY.  FOR IN
OLMSTEAD, GOLDMAN, AND ON LEE, /3/  THE COURT DID JUST THAT.  EVEN
UNDER THE PREVAILING VIEW OF HABEAS, THIS FACT SHOULD BE OF
SIGNIFICANCE.  ALTHOUGH THE THREAT OF COLLATERAL ATTACK MAY BE
NECESSARY TO ASSURE THAT THE LOWER FEDERAL AND STATE COURTS TOE THE
CONSTITUTIONAL LINE, THE LOWER COURTS CANNOT BE FAULTED WHEN, FOLLOWING
THE DOCTRINE OF STARE DECISIS, THEY APPLY THE RULES WHICH HAVE BEEN
AUTHORITATIVELY ANNOUNCED BY THIS COURT.  IF ANYONE IS RESPONSIBLE FOR
CHANGING THESE RULES, IT IS THIS COURT. 

EVEN IN THIS SITUATION, HOWEVER, THE DOCTRINE OF STARE DECISIS
CANNOT ALWAYS BE A COMPLETE ANSWER TO THE RETROACTIVITY PROBLEM IF A
HABEAS PETITIONER IS REALLY ENTITLED TO THE CONSTITUTIONAL LAW WHICH
PREVAILED AT THE TIME OF HIS CONVICTION.  CONSIDER, FOR EXAMPLE, THE
STATE OF FOURTH AMENDMENT LAW AS IT EXISTED AFTER OUR DECISION IN
SILVERMAN V. UNITED STATES, 365 U.S. 505 (1961).  AS MY BROTHER STEWART
NOTES TODAY, ANTE, AT 248 SILVERMAN WENT A LONG WAY TOWARD REJECTING
THE PRINCIPLES SUPPORTING THE GOLDMAN AND OLMSTEAD RULES.  THE COURT IN
SILVERMAN CAUTIONED THAT THE SCOPE OF THE FOURTH AMENDMENT'S PROTECTION
IS "NOT INEVITABLY MEASURABLE IN TERMS OF ANCIENT NICETIES OF TORT OR
REAL PROPERTY LAW."  365 U.S.,AT 511.  THE MAJORITY'S OPINION CONCLUDED
WITH THE WARNING:  "WE FIND NO OCCASION TO RE-EXAMINE GOLDMAN HERE, BUT
WE DECLINE TO GO BEYOND IT, BY EVEN A FRACTION OF AN INCH."  ID., AT
512.  IT IS HARD TO BELIEVE THAT ANY LAWYER WORTHY OF THE NAME COULD,
AFTER READING SILVERMAN, RELY WITH CONFIDENCE ON THE CONTINUING
VITALITY OF THE GOLDMAN RULE.  NOR IS IT BY ANY MEANS CLEAR TO ME THAT
IT WOULD HAVE BEEN IMPROPER FOR A LOWER COURT TO HAVE DECLINED TO
FOLLOW GOLDMAN IN THE LIGHT OF SILVERMAN.  /4/  GIVEN THE DETERRENCE
PURPOSE OF THE EXPANDED HABEAS CORPUS, IT THUS COULD BE PERSUASIVELY
ARGUED THAT THE KATZ RULE SHOULD BE APPLIED TO ALL CASES WHICH NOT
BECOME FINAL AT THE TIME SILVERMAN WAS DECIDED.  /5/             C. 

KATZ, OF COURSE, HAS BEEN ONE OF THE LESSER INNOVATIONS OF A DECADE
THAT HAS WITNESSED REVOLUTIONARY CHANGES IN THE MOST FUNDAMENTAL
PREMISES OF HITHERTO ACCEPTED CONSTITUTIONAL LAW.  AND SIMILAR
DIFFICULTIES ARISE AS TO THE RETROACTIVE APPLICATION OF THE COURT'S
OTHER LANDMARK DECISIONS IF ONE IS TO INSIST THAT A HABEAS PETITIONER
IS ENTITLED TO THE LAW AS IT STOOD AT THE TIME OF HIS CONVICTION.  IT
IS POSSIBLE TO ARGUE, FOR EXAMPLE, THAT THE COURT'S DECISION IN MAPP V.
OHIO, 367 U.S. 643 (1961), IMPOSING THE EXCLUSIONARY RULE ON THE
STATES, WAS A SUFFICIENT INDICATION TO THE LOWER COURTS THAT THEY
SHOULD NO LONGER RELY ON THE DOCTRINE OF STARE DECISIS WHEN CONFRONTED
WITH THE CLAIM THAT OTHER BILL OF RIGHTS GUARANTEES SHOULD BE
INCORPORATED INTO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
IT WOULD FOLLOW FROM THIS POSITION THAT ALL SUBSEQUENT DECISIONS
INCORPORATING VARIOUS OTHER PROVISIONS OF THE BILL OF RIGHTS INTO DUE
PROCESS SHOULD BE APPLIED TO ALL CASES ARISING ON HABEAS WHICH WERE
PENDING ON APPEAL AT THE TIME MAPP WAS DECIDED. 

ON THE OTHER HAND, ONE COULD ARGUE THAT STARE DECISIS WAS STILL THE
APPROPRIATE RULE FOR THE LOWER COURTS UNTIL THIS COURT MADE IT CLEAR
THAT A PARTICULAR GUARANTEE WAS APPLICABLE TO THE STATES.  IT WOULD
FOLLOW FROM THIS POSITION THAT THE COURT'S DECISION IN GRIFFIN V.
CALIFORNIA, 380 U.S. 609 (1965), SHOULD BE RETROACTIVELY APPLIED ONLY
TO MALLOY V. HOGAN, 378 U.S. 1 (1964), WHICH WAS THE FIRST CASE
BEGINNING THE PROCESS OF INCORPORATING THE FIFTH AMENDMENT'S PRIVILEGE
AGAINST SELF-INCRIMINATION, AND THAT DUNCAN V. LOUISIANA, 391 U.S. 145
(1968), SHOULD NOT BE APPLIED TO ANY OF THOSE CASES WHICH HAD BECOME
FINAL BEFORE THAT DECISION REQUIRED THE STATES TO PROVIDE CRIMINAL JURY
TRIALS ON THE SAME BASIS AS THE FEDERAL GOVERNMENT. 

NEITHER OF THESE POSITIONS WOULD BE SQUARELY INCONSISTENT WITH THE
COURT'S NEW VIEW OF HABEAS CORPUS.  INDEED, IF THE COURT IN MAPP HAD
GIVEN ANY INDICATION WHATEVER THAT IT ACCEPTED MY BROTHER BLACK'S
"INCORPORATIONIST" PHILOSOPHY IN ITS PRISTINE PURITY, SEE ADAMSON V.
CALIFORNIA, 332 U.S. 46, 68-123 (1947), IT WOULD APPEAR THAT IT WOULD
HAVE BEEN IMPROPER FOR THE LOWER COURTS TO RELY ON THE OLD PRECEDENTS
TO RESPOND TO THE NEW CLAIMS ADVANCED BY CRIMINAL DEFENDANTS.  HOWEVER,
THE COURT HAS NEVER ACCEPTED MR. JUSTICE BLACK'S CONSTITUTIONAL
PREMISES IN FULL-BLOWN FORM.  INSTEAD, IT HAS EMBARKED ON A COURSE OF
"SELECTIVE INCORPORATION" IN WHICH THE NATURE OF EACH PARTICULAR BILL
OF RIGHTS GUARANTEE HAS BEEN EXAMINED BEFORE IT WAS IMPOSED UPON THE
STATES.  GIVEN THE AD HOC CHARACTER OF THIS APPROACH, AND GIVEN THE
FUNDAMENTAL PLACE OF FEDERALISM IN THE TRADITIONAL CONCEPTION OF
CONSTITUTIONAL ADJUDICATION, IT COULD CERTAINLY BE STRONGLY ARGUED THAT
THE LOWER COURTS COULD PROPERLY FOLLOW THE TRADITIONAL DUE PROCESS
APPROACH UNTIL THE TIME THIS COURT MADE IT CLEAR THAT A PARTICULAR BILL
OF RIGHTS GUARANTEE HAD BEEN INCORPORATED. 

THE RELATIONSHIP FOR RETROACTIVITY PURPOSES AMONG THE ESCOBEDO,
MIRANDA, WADE, AND GILBERT DECISIONS /6/  PRESENTS ANOTHER DIFFICULT
PROBLEM UNDER THE NEW HABEAS CORPUS CONCEPT.  IT CAN BE ARGUED THAT THE
LINE-UP" CASES, WADE AND GILBERT, SHOULD BE RETROACTIVELY APPLIED TO
ALL THOSE CASES PENDING WHEN MIRANDA WAS DECIDED.  SINCE MIRANDA PLACED
AFFIRMATIVE REQUIREMENTS UPON POLICE OFFICERS TO ASSURE THAT THE
ACCUSED WOULD HAVE AN OPPORTUNITY TO OBTAIN COUNSEL AT ONE "CRITICAL
STAGE" OF THE CRIMINAL PROCESS, NEITHER POLICE OFFICIALS NOR THE LOWER
COURTS, IT MIGHT BE ARGUED, COULD PROPERLY ASSUME THAT OTHER CRITICAL
STAGES WOULD NOT BE COMPARABLY TREATED.  SIMILARLY, IT MAY BE SUGGESTED
THAT THE RULES ANNOUNCED IN BOTH MIRANDA AND THE "LINE-UP" CASES SHOULD
BE APPLIED TO ALL CASES STILL PENDING ON APPEAL WHEN ESCOBEDO V.
ILLINOIS ANNOUNCED THAT THE SIXTH AMENDMENT APPLIED IN THE POLICE
STATION.  FOR GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), HAD ALREADY
ESTABLISHED THE PROPOSITION THAT THE STATE MUST PROVIDE FREE COUNSEL TO
INDIGENTS AT THE CRIMINAL TRIAL. 

IT IS DOUBTLESS TRUE THAT A HABEAS COURT ENCOUNTERS DIFFICULT AND
COMPLEX PROBLEMS IF IT IS REQUIRED TO CHART OUT THE PROPER IMPLICATIONS
OF THE GOVERNING PRECEDENTS AT THE TIME OF A PETITIONER'S CONVICTION. 
ONE MAY WELL ARGUE THAT IT IS OF PARAMOUNT IMPORTANCE TO MAKE THE
"CHOICE OF LAW" PROBLEM ON HABEAS AS SIMPLE AS POSSIBLE, APPLYING EACH
"NEW" RULE ONLY TO THOSE CASES PENDING AT THE TIME IT IS ANNOUNCED. 
WHILE THIS WOULD OBVIOUSLY BE SIMPLER, SIMPLICITY WOULD BE PURCHASED AT
THE COST OF COMPROMISING THE PRINCIPLE THAT A HABEAS PETITIONER IS TO
HAVE HIS CASE JUDGED BY THE CONSTITUTIONAL STANDARDS DOMINANT AT THE
TIME OF HIS CONVICTION. 

I DO NOT PRETEND TO HAVE EXHAUSTED IN THE FOREGOING DISCUSSION ALL
THE COMPLEXITIES OF THE RETROACTIVITY PROBLEM ON HABEAS.  BUT THE
CONSIDERATIONS I HAVE CANVASSED SUGGEST THAT WE SHOULD TAKE A HARD LOOK
AT WHERE WE ARE GOING IN THE RETROACTIVITY FIELD SO THAT THIS NEW
DOCTRINE MAY BE ADMINISTERED IN ACCORDANCE WITH THE BASICS OF THE
JUDICIAL TRADITION.  UNFORTUNATELY, THE COURT DOES NOT EVEN ATTEMPT
THIS TASK. 

FOR THE REASONS STATED IN PART I OF THIS OPINION I CANNOT SUBSCRIBE
TO THE AFFIRMANCE OF THE JUDGMENT OF THE COURT OF APPEALS.  I WOULD
REMAND THE CASE TO THAT COURT FOR RECONSIDERATION IN LIGHT OF KATZ V.
UNITED STATES. 

/1/  IN ONE INSTANCE THIS DOCTRINE HAS BEEN APPLIED TO A
NONCONSTITUTIONAL DECISION.  SEE LEE V. FLORIDA, 392 U.S. 378 (1968),
AND ITS AFTERMATH IN FULLER V. ALASKA, 393 U.S. 80 (1968). 

/2/  AN EXCEPTION TO THIS GENERAL RULE WAS MADE, HOWEVER, WHEN THE
HABEAS PETITIONER ATTACKED THE CONSTITUTIONALITY OF THE STATE STATUTE
UNDER WHICH HE HAD BEEN CONVICTED.  SEE, E.G., EX PARTE SIEBOLD, 100
U.S. 371 (1880).  SINCE, IN THIS SITUATION, THE STATE HAD NO POWER TO
PROSCRIBE THE CONDUCT FOR WHICH THE PETITIONER WAS IMPRISONED, IT COULD
NOT CONSTITUTIONALLY INSIST THAT HE REMAIN IN JAIL. 

/3/  OLMSTEAD V. UNITED STATES, 277 U.S. 438 (1928); GOLDMAN V.
UNITED STATES, 316 U.S. 129 (1942); ON LEE V. UNITED STATES, 343 U.S.
747 (1952). 

/4/  AFTER SILVERMAN WAS DECIDED, WE WERE CAREFUL TO FRAME OUR
DECISIONS IN SUCH A WAY THAT A DIRECT CONSIDERATION OF THE "TRESPASS"
DOCTRINE COULD BE AVOIDED.  IN LOPEZ V. UNITED STATES, 373 U.S. 427,
439 (1963), WE NOTED THAT:  "THE VALIDITY OF (OLMSTEAD AND GOLDMAN) IS
NOT IN QUESTION HERE.  INDEED THIS CASE INVOLVES NO 'EAVESDROPPING'
WHATEVER IN ANY PROPER SENSE OF THAT TERM.  THE GOVERNMENT DID NOT USE
AN ELECTRONIC DEVICE TO LISTEN IN ON CONVERSATIONS IT COULD NOT
OTHERWISE HAVE HEARD.  INSTEAD, THE DEVICE WAS USED ONLY TO OBTAIN THE
MOST RELIABLE EVIDENCE POSSIBLE OF A CONVERSATION IN WHICH THE
GOVERNMENT'S OWN AGENT WAS A PARTICIPANT . . . "  IN BERGER V. NEW
YORK, 388 U.S. 41, THE COURT FOUND THAT NEW YORK'S EAVESDROPPING
STATUTE CONTAINED IMPERMISSIBLY VAGUE STANDARDS EVEN WITH REGARD TO THE
AUTHORIZATION OF ELECTRONIC SURVEILLANCE REQUIRING A TRESPASS.  IT
CONCLUDED THAT "(THIS DISPOSITION OBVIATES THE NECESSITY FOR ANY
DISCUSSION OF THE OTHER POINTS RAISED."  ID., AT 44.  MOREOVER, BERGER
MADE IT CLEAR THAT WE HAD REJECTED OLMSTEAD'S DECLARATION THAT THE
FOURTH AMENDMENT DID NOT PROTECT THE INTEGRITY OF PRIVATE
CONVERSATIONS.  SUCH AN ACTION WOULD HARDLY STRENGTHEN A LAWYER'S OR
LOWER COURT'S CONFIDENCE IN THE CONTINUING VITALITY OF THE "TRESPASS"
DOCTRINE, WHICH IS ALSO ROOTED IN OLMSTEAD. 

FINALLY, THE COURT'S SUGGESTION THAT OUR UNEXPLICATED PER CURIAM
REVERSAL IN CLINTON V. VIRGINIA, 377 U.S. 158 (1964), WAS PREMISED UPON
THE "TRESPASS" DOCTRINE, SEE ANTE, AT 248, N. 11, IS NOT SUPPORTED BY
THE OPINION IN THAT CASE.  ONLY MR. JUSTICE CLARK EXPRESSLY PREDICATED
HIS DECISION UPON THE DOCTRINE.  THE OTHER SEVEN MEMBERS OF THE
MAJORITY DID NOT STATE THE GROUND UPON WHICH THE REVERSAL WAS BASED. 

/5/  WHILE I DO NOT QUESTION MUCH THAT MY BROTHER FORTAS SAYS IN HIS
DISSENTING OPINION, I AM UNABLE TO ADOPT THE EXTREME POSITION ON
RETROACTIVITY HE PROPOSES.  BEFORE SILVERMAN WAS DECIDED IN 1961, NO
DECISION OF THIS COURT HAD UNDERMINED THE CONCEPTUAL BASIS OF OLMSTEAD
RULE.  BEFORE 1961, EVEN THE MOST CONSCIENTIOUS POLICE DEPARTMENT OR
JUDGE HAD NO REASON TO DOUBT THE VALIDITY OF THE "TRESPASS" RULE. 
NEVERTHELESS, MR. JUSTICE FORTAS WOULD GRANT HABEAS CORPUS TO PRISONERS
WHOSE CONVICTIONS BECAME FINAL BEFORE SILVERMAN.  THIS RESULT CANNOT BE
JUSTIFIED EVEN IF ONE ASSUMES THAT IT IS PROPER FOR A HABEAS COURT TO
REQUIRE "CONCEPTUAL FAITHFULNESS" TO OUR OPINIONS AND "NOT MERELY
DECISIONAL OBEDIENCE" TO THE RULES THEY ANNOUNCE.  SEE POST, AT 277. 

/6/  ESCOBEDO V. ILLINOIS, 378 U.S. 478 (1964); MIRANDA V. ARIZONA,
384 U.S. 436 (1966); UNITED STATES V. WADE, 388 U.S. 218 (1967);
GILBERT V. CALIFORNIA, 388 U.S. 263 (1967). 

MR. JUSTICE FORTAS, DISSENTING.  /0/ 

THE DECISIONS TODAY IN KAISER V. NEW YORK AND DESIST V. UNITED
STATES APPLY TO ONLY THE LIMITED NUMBER OF CASES WHERE THE
CONSTITUTIONALLY FORBIDDEN WIRETAP OR EAVESDROPPING OCCURRED PRIOR TO
DECEMBER 18, 1967.  IT WAS ON THAT DAY THAT WE DECIDED KATZ V. UNITED
STATES, 389 U.S. 347, WHICH ADMINISTERED THE FORMAL COUP DE GRACE TO
THE MORIBUND DOCTRINE OF OLMSTEAD V. UNITED STATES, 277 U.S. 438
(1928).  THE COURT IN EFFECT GRANTS ABSOLUTION TO POLICE INVASIONS OF
INDIVIDUAL PRIVACY BY WIRETAPS AND ELECTRONIC DEVICES NOT INVOLVING
PHYSICAL TRESPASS, AS LONG AS THE UNCONSTITUTIONAL CONDUCT TOOK PLACE
BEFORE KATZ.  IT HOLDS THAT ONLY FROM AND AFTER KATZ WILL IT APPLY THE
FOURTH AMENDMENT'S COMMAND WITHOUT REFERENCE TO WHETHER A PHYSICAL
TRESPASS WAS INVOLVED.  THE SIGNIFICANCE OF THE DECISIONS IS NOT ONLY
THAT THEY DEPRIVE A RELATIVELY FEW CONVICTED PERSONS OF THEIR
CONSTITUTIONAL RIGHTS, BUT ALSO THAT THEY DIMINISH THE CONSTITUTION;
THEY IMPLY THAT THE AVAILABILITY OF CONSTITUTIONAL PRINCIPLE CAN BE THE
SUBJECT OF JUDICIAL CHOICE IN CIRCUMSTANCES WHICH I RESPECTFULLY
SUBMIT, ARE FAR FROM COMPELLING.  I CANNOT AGREE. 

THE COURT SAYS THAT IT HAS AUTHORITY TO DETERMINE WHETHER A RULING
WILL BE MADE "RETROACTIVE," AND IT GIVES SEVERAL REASONS FOR ITS
DECISION NOT TO APPLY KATZ "RETROACTIVELY":  (1) KATZ "WAS A CLEAR
BREAK WITH THE PAST" BECAUSE IT REPUDICATED OLMSTEAD'S REQUIREMENT OF A
PHYSICAL TRESPASS INTO THE ACCUSED'S HOME OR OFFICE, ANTE AT 248; (2)
THE PURPOSE OF THE KATZ RULE EXCLUDING EVIDENCE EVEN WHERE THERE WAS NO
PHYSICAL INTRUSION WAS TO DETER POLICE INVASION OF CONSTITUTIONAL
RIGHTS, A PURPOSE THAT WOULD NOT BE AIDED BY "RETROSPECTIVE"
APPLICATION OF THE RULING; (3) POLICE AND COURTS ALIKE, UNTIL KATZ,
JUSTIFIABLY RELIEF UPON THE CONTINUING VITALITY OF OLMSTEAD; AND (4) IT
WOULD UNDULY BURDEN LAW ADMINISTRATION TO APPLY KATZ "RETROACTIVELY." 
THE COURT DERIVES THESE FACTORS FROM VARIOUS OF ITS DECISIONS,
COMMENCING WITH LINKLETTER V. WALKER, 381 U.S. 618 (1965), /1/  IN
WHICH DECISIONS OF THIS COURT HAVE BEEN HELD TO APPLY PROSPECTIVELY
ONLY.  /2/ 

IN MY JUDGMENT OF THE COURT'S HOLDING IS OF PERVASIVE IMPORTANCE
BECAUSE IT ADDS NEW AND UNHAPPY DIMENSIONS TO THE "NON-RETROACTIVITY"
DOCTRINE.  NOT ONLY DOES THE COURT DENY THE BENEFIT OF A FUNDAMENTAL
CONSTITUTIONAL PROVISION, AND NOT MERELY OF COURT-MADE RULES
IMPLEMENTING A CONSTITUTIONAL MANDATE /3/  OR OF A STATUTORY PRINCIPLE,
/4/  TO A CLASS OF PERSONS BECAUSE OF THE CHANCE OPERATION OF THE
JUDICIAL CLAENDAR; IT DOES SO IN FACE OF THE FACT THAT THE RULING AT
ISSUE IS NEITHER NOVEL NOR ANTICIPATED.  THE COURT'S STATEMENT TO THE
CONTRARY IS, AS I SHALL DISCUSS, SIMPLY INSUPPORTABLE. 

        I. 

I DO NOT CHALLENGE THIS COURT'S POWER TO DECLINE TO APPLY NEWLY
DEVISED RULES IMPLEMENTING CONSTITUTIONAL PRINCIPLES TO PRIOR CASES OR
SITUATIONS, OR ITS AUTHORITY TO MAKE SIMILAR ACCOMMODATION WHEN IT
CHANGES LONG-STANDING STATUTORY INTERPRETATIONS.  MOST OF THE COURT'S
"NON-RETROACTIVITY" HOLDINGS HAVE EMERGED IN STATE CASES DEALING WITH
THE APPLICATION OF A RULING THAT WAS RELATIVELY UNPRESAGED AND THE
PRACTICAL EFFECT OF WHICH, IF APPLIED TO THE PAST AS WELL AS THE
FUTURE, WOULD BE ACUTELY DISRUPTIVE OF STATE PRACTICE AND
INSTITUTIONS.  IN THOSE CASES THE PRESSURES OF COMITY AND HESITANCY
DRASTICALLY TO NULLIFY STATE ACTIONS LENT SPECIAL FORCE TO THE DEMAND
THAT THE DECISION SHOULD NOT BE APPLIED "RETROACTIVELY."  IN DESTEFANO
V. WOODS, 392 U.S. 631 (1968), FOR EXAMPLE, THESE CIRCUMSTANCES WERE
DEEMED TO WARRANT ONLY PROSPECTIVE APPLICATION OF THE RIGHT TO TRIAL BY
JURY IN STATE PROSECUTIONS THAT WAS ESTABLISHED IN DUNCAN V. LOUISIANA,
391 U.S. 145 (1968), AND BLOOM V. ILLINOIS, 391 U.S. 194 (1968). 

THE COURT SO HELD EVEN THOUGH IT THEREBY LET STAND CONVICTIONS THAT
HAD BEEN RENDERED PURSUANT TO A FAULTY READING OF THE CONSTITUTION. 
EVEN WHERE CONSIDERATIONS THAT FAVOR "NON-RETROACTIVITY" EXIST,
HOWEVER, A NEW CONSTITUTIONAL RULE WILL NOT ALWAYS BE "NON
RETROACTIVELY" APPLIED.  THE COURT HAS INSISTED THAT ALL PERSONS, NOT
JUST THOSE SELECTED BY THE CHANCE OF THE CALENDAR, RECEIVE THE BENEFIT
OF NEWLY DECLARED CONSTITUTIONAL COMMANDS THAT ARE CENTRAL TO THE
RELIABILITY OF THE FACT-FINDING PROCESS AT TRIAL AND WITHOUT WHICH
INNOCENT PERSONS MAY HAVE BEEN ADJUDGED GUILTY.  SEE, E.G., ROBERTS V.
RUSSELL, 392 U.S. 293 (1968) (HOLDING RETROACTIVE BRUTON V. UNITED
STATES, 391 U.S. 123 (1968)); MCCONNELL V. RHAY, 393 U.S. 2 (1968)
(HOLDING RETROACTIVE MEMPA V. RHAY, 389 U.S. 128 (1967)); ARSENAULT V.
MASSACHUSETTS, 393 U.S. 5 (1968) (HOLDING RETROACTIVE WHITE V.
MARYLAND, 373 U.S. 59 (1963)); BERGER V. CALIFORNIA, 393 U.S. 314
(1969) (HOLDING RETROACTIVE BARBER V. PAGE, 390 U.S. 719 (1968));
GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963); GRIFFIN V. ILLINOIS, 351
U.S. 12 (1956); JACKSON V. DENNO, 378 U.S. 368 (1964).     IN THE
PRESENT CASES, THE COURT DECIDES THAT THE LAWFULNESS OF WIRETAPS AND
ELECTRONIC EAVESDROPPING OCCURRING BEFORE DECEMBER 18, 1967, WILL BE
CONTROLLED BY OLMSTEAD V. UNITED STATES, SUPRA, A DECISION THAT THE
COURT AGREES IS A FALSE AND INSUPPORTABLE READING OF THE CONSTITUTION. 
THE COURT HOLDS THAT THE FOURTH AMENDMENT MEANT SOMETHING QUITE
DIFFERENT BEFORE KATZ WAS DECIDED THAN IT MEANS AFTERWARDS; THAT KATZ
AND PERSONS WHOSE RIGHTS ARE VIOLATED AFTER THE DATE OF THAT DECISION
MAY HAVE THE BENEFIT OF THE TRUE MEANING OF THE CONSTITUTIONAL
PROVISION, BUT THAT THOSE WHO WERE VICTIMS BEFORE KATZ MAY NOT. 

IF SUCH A DISTINCTION IN THE APPLICATION OF A SUBSTANTIVE
CONSTITUTIONAL PRINCIPLE CAN EVER BE JUSTIFIED, IT CAN BE ONLY IN THE
MOST COMPELLING CIRCUMSTANCES.  SUCH CIRCUMSTANCES MIGHT POSSIBLY EXIST
IF THE NEWLY ANNOUNCED PRINCIPLE RELATED ONLY TO THE STATES, IN THAT IT
EXTENDED TO THE STATES A PRINCIPLE HERETOFORE DEEMED TO APPLY ONLY TO
THE FEDERAL GOVERNMENT, OR IF "RETROACTIVE" APPLICATION WOULD PLACE AN
EXTREME BURDEN ON THE ADMINISTRATION OF JUSTICE; IF THE NEW RULING WERE
WHOLLY UNANTICIPATED IN THE DECISIONS OF THE COURT; AND IF THE NEW RULE
DID NOT DIRECTLY AND CLEARLY AFFECT THE FAIRNESS OF THE TRIAL.  CF.
DESTEFANO V. WOODS, SUPRA; JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966);
LINKLETTER V. WALKER, SUPRA.  BUT THERE IS NO JUSTIFICATION FOR
REFUSING "RETROACTIVE" APPLICATION TO A CONSTITUTIONAL PRINCIPLE MERELY
BECAUSE OF AN EARLIER READING OF THE CONSTITUTION THAT HAD BEEN WIDELY
REPUDIATED AS UNSOUND AND THAT THIS COURT'S OWN INTERVENING OPINIONS
HAD DISCREDITED, ALTHOUGH NOT EXPRESSLY OVERRULED.  OLMSTEAD IS IN THIS
CATEGORY.  KATZ DID NOT MORE THAN ADMINISTER THE COUP DE GRACE TO ITS
MORIBUND DOCTRINE.  THE ACTION OF THE COURT TODAY CANNOT BE JUSTIFIED
BY CLAIMING THAT IT IS REQUIRED BY OLMSTEAD'S CONTINUED VITALITY.  ON
THE CONTRARY, THE COURT TODAY BREATHES LIFE INTO OLMSTEAD'S CORPSE. 
THE CONTRARY, THE COURT TODAY BREATHES LIFE INTO OLMSTEAD'S CORPSE. 

        II. 

IN KAISER V. NEW YORK, THE COURT AFFIRMS A STATE CONVICTION DESPITE
THE FACT THAT THE CONVICTION WAS BASED UPON TELEPHONE CONVERSATIONS
THAT THE POLICE HAD RECORDED BY A WIRETAP.  THE PETITIONER MADE THE
TELEPHONE CALLS TO A COCONSPIRATOR AT A BAR IN MANHATTAN.  THE POLICE
HAD INSTALLED A WIRETAP DEVICE IN THE TERMINAL BOX IN THE BUILDING
WHERE THE BAR WAS LOCATED. 

THE TAPS WERE MADE PURSUANT TO A WARRANT ISSUED UNDER A NEW YORK
STATUTE.  THE WARRANT CANNOT, HOWEVER, SUPPORT THE USE OF THE WIRETAP
EVIDENCE, FOR IN BERGER V. NEW YORK, 388 U.S. 41, DECIDED ON JUNE 12,
1967, WE HELD THAT THE NEW YORK STATUTE DID NOT COMPLY WITH FOURTH
AMENDMENT REQUIREMENTS.  THE COURT'S DECISION RESTS INSTEAD ON THE FACT
THAT THE PETITIONER'S CONVERSATIONS WERE INTERCEPTED AND RECORDED
WITHOUT A TRESPASS AND ON THE ASSERTION THAT THE OLMSTEAD DOCTRINE WAS
FULLY VIABLE AT THE TIME THAT THE PETITIONER'S TELEPHONE CONVERSATIONS
WERE OVERHEARD. 

IN DESIST V. UNITED STATES, THE FEDERAL CASE DECIDED TODAY, THE
FEDERAL AGENTS ATTACHED THE "UNINVITED EAR" OF THE MICROPHONE TO THE
OUTER INSTEAD OF THE INNER PANEL OF THE DOUBLE DOOR SEPARATING THEIR
HOTEL ROOM FROM THAT OF THE PETITIONERS.  BECAUSE OF THIS DISTINCTION,
THEIR CONDUCT IS TODAY HELD TO BE IMMUNIZED FROM FOURTH AMENDMENT
ATTACK.  OLMSTEAD WOULD SANCTION THE DIFFERENTIATION.  IF THE
MICROPHONE HAD BEEN ATTACHED TO THE INNER PANEL, OR IF THE AGENTS HAD
USED A DEVICE THAT IMPINGED BY 1/1000TH OF AN INCH UPON THE ROOM RENTED
BY PETITIONERS, OLMSTEAD WOULD NOT HAVE SANCTIFIED THE RESULT.  SEE
SILVERMAN V. UNITED STATES, 365 U.S. 505 (1961).  /5/ 

THIS DISTINCTION IS, OF COURSE, NONSENSE, AS I SUPPOSE MOST RATIONAL
PERSONS WOULD AGREE; AND I AM UNWILLING TO SUPPOSE THAT IF THE MAJORITY
IN OLMSTEAD HAD FORESEEN THE ENSUING DEVELOPMENT AND UNINHIBITED USE OF
ELECTRONIC DEVICES FOR SEARCHING OUT AND SEIZING THE WORDS OF OTHERS,
IT WOULD HAVE NEVERTHELESS ALLOWED THE PERIMETER OF PHYSICAL PROPERTY
RIGHTS TO LIMIT THE FOURTH AMENDMENT'S PROTECTION OF CITIZENS' PRIVACY
FROM UNSEEN INVASION. 

IN ANY EVENT, THERE IS NO DOUBT THAT OLMSTEAD WAS THOROUGHLY
REPUDIATED BY THIS COURT LONG BEFORE DECEMBER 18, 1967, WHEN KATZ WAS
DECIDED.  KATZ IS NOT RESPONSIBLE FOR KILLING OLMSTEAD.  PRIOR CASES
HAD LEFT THE PHYSICAL-TRESPASS REQUIREMENT OF OLMSTEAD VIRTUALLY
LIFELESS AND MERELY AWAITING THE DEATH CERTIFICATE THAT KATZ GAVE IT.
THEY DEMONSTRATED TO ALL WHO WERE WILLING TO RECEIVE THE MESSAGE THAT
OLMSTEAD WOULD NOT SHIELD EAVESDROPPING BECAUSE IT TOOK PLACE OUTSIDE
THE PHYSICAL PROPERTY LINE.  SILVERMAN V. UNITED STATES, SUPRA; CLINTON
V. VIRGINIA, 377 U.S. 158 (1964); BERGER V. NEW YORK, SUPRA. 

NOT FOR 17 YEARS, UNTIL THIS DAY, HAS THIS COURT APPLIED OLMSTEAD TO
SANCTION A FOURTH AMENDMENT VIOLATION BECAUSE OF OLMSTEAD'S PECULIAR
DISTINCTION.  /6/  STATEMENTS BY THE DEPARTMENT OF JUSTICE IN RECENT
YEARS HAVE PLACED NO RELIANCE UPON OLMSTEAD'S QUAINT CONSTRICTION OF
THE INDIVIDUAL'S AREA OF PRIVACY.  /7/  THE OMNIBUS CRIME CONTROL AND
SAFE STREETS ACT OF 1968, RECENTLY ENACTED BY CONGRESS, DOES NOT
RECOGNIZE OLMSTEAD'S LONG-OUTMODED DISTINCTION BETWEEN PERMISSIBLE AND
IMPERMISSIBLE INVASIONS OF PRIVACY.  THAT STATUTE REQUIRES JUDICIAL
AUTHORIZATION FOR WIRETAPS AND ELECTRONIC SURVEILLANCE, WHETHER OR NOT
THEY WOULD INVOLVE A PHYSICAL TRESPASS.  PUB. L. 90-351, TIT. III, 82
STAT. 211.  THE NEW YORK STATUTE INVOLVED IN KAISER PURPORTS TO REQUIRE
WARRANTS FOR EAVESDROPPING, BUT IT MAKES NO SUCH ABSURD DISTINCTION AS
OLMSTEAD DESCRIBES.  N.Y. CODE CRIM. PROC. SEC. 813-A. 

ONLY THOSE POLICE OFFICIALS AND COURTS WHOSE DEVOTION TO WIRETAPPING
AND ELECTRONIC SURVEILLANCE IS SO INTENSE AS TO INDUCE THEM TO EXPLOIT
THOSE TECHNIQUES UNTIL THE LAST SPADE OF EARTH IS SHOVELED ON THE
DOCTRINAL CORPSE HAVE CONTINUED TO RELY ON OLMSTEAD.  IT IS NOT THE
LEAST OF THE UNFORTUNATE CONSEQUENCES OF TODAY'S DECISIONS THAT THEY
VALIDATE THIS KIND OF FOOT-DRAGGING.  THEY REWARD THOSE WHO FOUGHT THE
BATTLE FOR UNCONTROLLED POLICE EAVESDROPPING TO THE BITTER END, DESPITE
THE CLEAR, THOUGH UNDELIVERED, VERDICT.  THEY ADD THIS COURT'S APPROVAL
TO THOSE WHO HONOR THE CONSTITUTION'S MANDATE ONLY WHERE ACCEPTABLE TO
THEM OR COMPELLED BY THE PRECISE AND INESCAPABLE SPECIFIES OF A
DECISION OF THIS COURT.  AND THEY AWARD DUNCE CAPS TO THOSE LAW
ENFORCEMENT OFFICERS, COURTS, AND PUBLIC OFFICIALS WHO DO NOT MERELY
STAND BY UNTIL AN INEVITABLE DEGREE ISSUES FROM THIS COURT,
SPECIFICALLY ARTICULATING THAT WHICH IS CLEARLY IMMANENT IN THE
FULFILLMENT OF THE CONSTITUTION, BUT WHO GENEROUSLY APPLY THE MANDATES
OF THE CONSTITUTION AS THE DEVELOPING CASE LAW ELUCIDATES THEM. 

THE FULL REALIZATION OF OUR GREAT CHARTER OF LIBERTY, SET FORTH IN
OUR CONSTITUTION, CANNOT BE ACHIEVED BY THIS COURT ALONE.  HISTORY DOES
NOT EMBRACE THE YEARS NEEDED FOR US TO HOLD, MILLIMETER BY MILLIMETER,
THAT SUCH AND AND SUCH A PENETRATION OF INDIVIDUAL RIGHTS IS AN
INFRINGEMENT OF THE CONSTITUTION'S GUARANTEES.  THE VITALITY OF OUR
CONSTITUTION DEPENDS UPON CONCEPTUAL FAITHFULNESS AND NOT MERELY
DECISIONAL OBEDIENCE.  CERTAINLY, THIS COURT SHOULD NOT ENCOURAGE
POLICE OR OTHER COURTS TO DISREGARD THE PLAIN PURPORT OF OUR DECISIONS
AND TO ADOPT A LET'S-WAIT-UNTIL-IT'S-DECIDED APPROACH. 

THE BEST EVIDENCE OF THE MORIBUND STATE OF OLMSTEAD AT THE TIME KATZ
WAS DECIDED IS THE COURT'S OPINION IN KATZ ITSELF.  THAT OPINION
ACKNOWLEDGED AND RELIEF UPON THE FACT THAT OLMSTEAD HAD LONG CEASED TO
HAVE VITALITY.  IN KATZ, THE COURT SAID: 

"IT IS TRUE THAT THE ABSENCE OF (PHYSICAL) PENETRATION WAS AT ONE
TIME THOUGHT TO FORECLOSE FURTHER FOURTH AMENDMENT INQUIRY, OLMSTEAD V.
UNITED STATES, 377 U.S. 438, 457, 464, 466; GOLDMAN V. UNITED STATES,
316 U.S. 129, 134-136, FOR THAT AMENDMENT WAS THOUGHT TO LIMIT ONLY
SEARCHES AND SEIZURES OF TANGIBLE PROPERTY.  BUT '(THE PREMISE THAT
PROPERTY INTERESTS CONTROL THE RIGHT OF THE GOVERNMENT TO SEARCH AND
SEIZE HAS BEEN DISCREDITED.'  WARDEN V. HAYDEN, 387 U.S. 294, 304. 
THUS, ALTHOUGH A CLOSELY DIVIDED COURT SUPPOSED IN OLMSTEAD THAT
SURVEILLANCE WITHOUT ANY TRESPASS AND WITHOUT THE SEIZURE OF ANY
MATERIAL OBJECT FELL OUTSIDE THE AMBIT OF THE CONSTITUTION, WE HAVE
SINCE DEPARTED FROM THE NARROW VIEW ON WHICH THAT DECISION RESTED. 
INDEED, WE HAVE EXPRESSLY HELD THAT THE FOURTH AMENDMENT GOVERNS NOT
ONLY THE SEIZURE OF TANGIBLE ITEMS, BUT EXTENDS AS WELL TO THE
RECORDING OF ORAL STATEMENTS, OVERHEARD WITHOUT ANY 'TECHNICAL TRESPASS
UNDER . . . LOCAL PROPERTY LAW.'  SILVERMAN V. UNITED STATES, 365
U.S.505, 511.  ONCE THIS MUCH IS ACKNOWLEDGED, AND ONCE IT IS
RECOGNIZED THAT THE FOURTH AMENDMENT PROTECTS PEOPLE-- AND NOT SIMPLY
'AREAS'-- AGAINST UNREASONABLE SEARCHES AND SEIZURES, IT BECOMES CLEAR
THAT THE REACH OF THAT AMENDMENT CANNOT TURN UPON THE PRESENCE OR
ABSENCE OF A PHYSICAL INTRUSION INTO ANY GIVEN ENCLOSURE. 

     "WE CONCLUDE THAT THE UNDERPINNINGS OF OLMSTEAD AND GOLDMAN

  HAVE BEEN SO ERODED BY OUR SUBSEQUENT DECISIONS THAT THE

  'TRESPASS' DOCTRINE THERE ENUNCIATED CAN NO LONGER BE REGARDED AS

  CONTROLLING . . . "  389 U.S.,AT 352-353. 

SINCE KATZ ITSELF RECOGNIZED THAT OLMSTEAD HAD BEEN "ERODED BY OUR
SUBSEQUENT DECISIONS" AND THAT WE HAD "SINCE DEPARTED FROM THE NARROW
VIEW ON WHICH (IT) . . . RESTED," HOW CAN THE COURT NOW SAY THAT
BECAUSE KATZ OVERRULED OLMSTEAD IT "WAS A CLEAR BREAK WITH THE PAST"? 
THE ISSUE PRESENTED BY DESIST AND KAISER IS NOT WHETHER THE PETITIONERS
WILL BE GIVEN THE BENEFIT OF KATZ.  THE ISSUE IS NOT WHETHER KATZ IS
"RETROACTIVE."  THE ISSUE IS WHETHER BECAUSE IN KATZ WE FORMALLY
ANNOUNCED THAT THE "REACH OF (THE FOURTH AMENDMENT) . . . CANNOT TURN
UPON THE PRESENCE OR ABSENCE OF A PHYSICAL INTRUSION INTO ANY GIVEN
ENCLOSURE," PERSONS CLAIMING THE BENEFIT OF THIS PRINCIPLE PRIOR TO
THAT DATE MUST BE DENIED ITS PROTECTION.  IT IS, I SUBMIT, ENTIRELY
APPROPRIATE TO STATE THE ISSUE IN THESE TERMS BECAUSE THERE CAN BE NO
DOUBT WHATEVER THAT IF THE PRESENT CASES HAD BEEN PRESENTED TO THIS
COURT A DAY, A YEAR, OR A NUMBER OF YEARS BEFORE KATZ, WE WOULD HAVE
HELD THAT THE PETITIONERS' CONSTITUTIONAL RIGHTS HAD BEEN VIOLATED, AND
THAT THE PETITIONERS WERE ENTITLED, LIKE ANY OTHER CITIZENS, TO THEIR
CONSTITUTIONAL RIGHTS.  IN THESE CIRCUMSTANCES, I UTTERLY FAIL TO SEE
HOW TODAY'S DECISIONS CAN BE JUSTIFIED.  IT IS INDEED A PARADOX THAT
KATZ, WHOSE ROLE IT WAS TO BURY THE CORPSE OF OLMSTEAD, IS HERE BEING
USED TO REVIVE IT. 

/0/  (THIS OPINION APPLIES ALSO TO NO. 62, KAISER V. NEW YORK, POST,
P. 280.) 

/1/  LINKLETTER HELD THAT THE COURT'S DECISION IN MAPP V. OHIO, 367
U.S. 643 (1961), THAT ILLEGALLY SEIZED EVIDENCE WAS NOT ADMISSIBLE IN
STATE PROSECUTIONS, SHOULD NOT BE APPLIED "RETROACTIVELY."  IN TEHAN V.
SHOTT, 382 U.S. 406 (1966), THE COURT HELD THAT ITS DECISION IN GRIFFIN
V. CALIFORNIA, 380 U.S. 609 (1965), THAT IT VIOLATES THE PRIVILEGE
AGAINST SELF-INCRIMINATION FOR THE PROSECUTION OR THE TRIAL JUDGE TO
COMMENT ON A CRIMINAL DEFENDANT'S FAILURE TO TESTIFY IN HIS DEFENSE,
SHOULD NOT APPLY "RETROACTIVELY."  JOHNSON V. NEW JERSEY, 384 U.S. 719
(1966), HELD THAT ESCOBEDO V. ILLINOIS, 378 U.S. 478 (1964), AND
MIRANDA V. ARIZONA, 384 U.S. 436 (1966) SHOULD NOT APPLY
"RETROACTIVELY."  STOVALL V. DENNO, 388 U.S. 293 (1967), HELD THAT
UNITED STATES V. WADE, 388 U.S. 218 (1967), AND GILBERT V. CALIFORNIA,
388 U.S. 263 (1967), BOTH OF WHICH RELATED TO THE RIGHT TO COUNSEL AT A
PRETRIAL LINEUP, SHOULD NOT BE APPLIED "RETROACTIVELY."  IN DESTEFANO
V. WOODS, 392 U.S. 631 (1968), THE COURT HELD THAT THE RIGHT TO TRIAL
BY JURY IN STATE CRIMINAL PROSECUTIONS THAT HAD BEEN ESTABLISHED IN
DUNCAN V. LOUISIANA, 391 U.S. 145 (1968), AND BLOOM V. ILLINOIS, 391
U.S. (1968), WAS NOT "RETROACTIVE."  FINALLY, THE COURT HELD IN FULLER
V. ALASKA, 393 U.S. 80 (1968), THAT LEE V. FLORIDA, 392 U.S. 378
(1968), WAS NOT "RETROACTIVE."  LEE RULED THAT EVIDENCE OBTAINED IN
VIOLATION OF SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT OF 1934, 48
STAT. 1103, 47 U.S.C.  605, WAS INADMISSIBLE IN STATE CRIMINAL
PROSECUTIONS. 

/2/  THE MEANING OF "PROSPECTIVITY" OR "NON-RETROACTIVITY" HAS
VARIED IN THE COURT'S DECISIONS.  IN LINKLETTER V. WALKER, SUPRA, N. 1,
AND TEHAN V. SHOTT, SUPRA, N. 1, MAPP AND GRIFFIN WERE SAID NOT TO
APPLY TO CONVICTIONS THAT HAD BECOME FINAL PRIOR TO THE ANNOUNCEMENT OF
THOSE DECISIONS.  BUT MAPP AND GRIFFIN WERE APPLIED TO CASES PENDING ON
DIRECT REVIEW AT THE TIME OF THOSE DECISIONS.  JOHNSON V. NEW JERSEY,
SUPRA, N. 1, BY CONTRAST, HELD MIRANDA AND ESCOBEDO APPLICABLE ONLY TO
TRIALS BEGUN AFTER MIRANDA AND ESCOBEDO WERE ANNOUNCED.  STOVALL V.
DENNO, SUPRA, N. 1, HELD THAT THE WADE AND GILBERT DECISIONS SHOULD
APPLY ONLY TO CASES IN WHICH THE ILLEGAL OFFICIAL CONDUCT TOOK PLACE
AFTER THE DATE OF DECISION.  DESTEFANO V. WOODS, SUPRA, N. 1, HELD THAT
DUNCAN AND BLOOM SHOULD APPLY ONLY TO CASES WHERE THE TRIAL COMMENCED
AFTER THE DATE OF DECISION.  DESTEFANO V. WOODS, SUPRA, N. 1, HELD THAT
DUNCAN AND BLOOM SHOULD APPLY ONLY TO CASES WHERE THE TRIAL COMMENCED
AFTER THE DATE OF DECISION, A DATE WHICH, SINCE THESE CASES INVOLVED
THE RIGHT TO JURY TRIAL, WAS APT TO COINCIDE WITH THE DATE OF THE
OFFICIAL CONDUCT.  FULLER V. ALASKA, SUPRA N. 1, HELD THAT LEE V.
FLORIDA, SUPRA, N.1, WOULD APPLY ONLY IN CASES IN WHICH THE ILLEGALLY
OBTAINED EVIDENCE WAS INTRODUCED AFTER THE DATE OF DECISION.  IN ALL OF
THESE CASES, THE NEW RULE WAS APPLIED ALSO IN THE CASE IN WHICH IT WAS
ANNOUNCED. 

/3/  CF. MIRANDA V. ARIZONA, 384 U.S. 436 (1966) (RULES CONCERNING
IN-CUSTODY INTERROGATION); MAPP V. OHIO, 367 U.S. 643 (1961)
(EXCLUSIONARY RULE). 

/4/  CF. FULLER V. ALASKA, 393 U.S. 80 (1968). 

/5/  IF THE EVIDENCE INTRODUCED IN DESIST HAD BEEN OBTAINED BY
TELEPHONE WIRETAP, I ASSUME THAT MAJORITY WOULD HAVE TO AGREE THAT IT
COULD NOT BE USED AT TRIAL.  THIS IS A FEDERAL CASE, AND AS EARLY AS
1937 THIS COURT HELD THAT EVIDENCE OBTAINED IN VIOLATION OF SEC. 605 OF
THE FEDERAL COMMUNICATIONS ACT, 48 STAT. 1103, 47 U.S.C. 605, MAY NOT
BE RECEIVED IN EVIDENCE IN A FEDERAL COURT.  NARDONE V. UNITED STATES,
302 U.S. 379.  THE FACT THAT A TELEPHONE WIRETAP WOULD NOT BE
ADMISSIBLE IN THE CIRCUMSTANCES OF THIS CASE FURTHER ELUCIDATES THE
WHIMSICALITY OF THE PRESENT DECISION.  AS A RESULT OF THE CHANCE
SEQUENCE OF DECISIONS, THE COURT GIVES LESS SCOPE TO THE FEDERAL
GOVERNMENT'S VIOLATION OF CONSTITUTIONAL MANDATE THAN THE COURT WOULD
PERMIT IN THE CASE OF DISREGARD OF A STATUTORY COMMAND.     /6/  THE
COURT DID APPLY THE OLMSTEAD DOCTRINE IN ON LEE V. UNITED STATES, 343
U.S. 747 (1952).  SEE ALSO GOLDMAN V. UNITED STATES, 316 U.S. 129
(1942). 

/7/  SEE, E.G., HEARING PURSUANT TO S. RES. 62 BEFORE THE
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE
JUDICIARY, 86TH CONG., 1ST SESS., PT. 4, 1034-1035, 1036 (1959);
HEARINGS ON S. 1086, S. 1221, S. 1495, AND S. 1822 BEFORE THE
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE
JUDICIARY 87TH CONGRESS., 1ST SESS. 372-373 (1961); HEARINGS ON S. 2813
AND S. 1495 BEFORE THE SENATE COMMITTEE ON THE JUDICIARY, 87TH CONG.,
2D.  SESS., 11-46 (1962); HEARINGS PURSUANT TO S. RES. 39 BEFORE THE
SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., PT. 3, 1154-1165
(1965); HEARINGS ON S. 2187 AND OTHER BILLS BEFORE THE SUBCOMMITTEE ON
CRIMINAL LAWS AND PROCEDURES OF THE SENATE COMMITTEE ON THE JUDICIARY,
89TH CONG., 2D SESS., 33-35 (1966); HEARINGS PURSUANT TO S. RES. 25
BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE OF THE
SENATE COMMITTEE ON JUDICIARY, 90TH CONG., 1ST SESS., 48-58 (1967);
BROWNELL, THE PUBLIC SECURITY AND WIRE TAPPING, 39 CORNELL L.Q. 195
(1954); ROGERS, THE CASE FOR WIRE TAPPING, 63 YALE L.J. 792 (1954). 

ABRAHAM GLASSER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE DAVID M. MARKOWITZ AND IRVING YOUNGER. 

FRANCIS X. BEYTAGH, JR., ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL VINSON, BEATRICE ROSENBERG, RONALD L. GAINER, AND
ROGER A. PAULEY. 
..END :










KAISER V. NEW YORK, 394 U.S. 280 


       KAISER V. NEW YORK. 

        CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

        NO. 62.  ARGUED JANUARY 16, 1969.-- DECIDED MARCH 24,
1969. 


EVIDENCE OBTAINED BY WIRETAPPING CONDUCTED IN 1964 PURSUANT TO A
WARRANT ISSUED UNDER N.Y. CODE CRIM. PROC. SEC. 813A (HELD VIOLATIVE OF
THE FOURTH AND FOURTEENTH AMENDMENTS FOR OVERBREADTH IN BERGER V. NEW
YORK, 388 U.S. 41, ONLY TO THE LIMITED EXTENT THAT IT PERMITTED A
"TRESPASSORY INTRUSION INTO A CONSTITUTIONALLY PROTECTED AREA") HELD
ADMISSIBLE IN STATE CRIMINAL TRIAL SINCE THE WIRETAPPING OCCURRED
BEFORE (1) KATZ V. UNITED STATES, 389 U.S. 347, OVERRULED PRIOR
DECISIONS THAT THE FOURTH AMENDMENT ENCOMPASSED SEIZURES OF SPEECH ONLY
IF THERE WAS A TRESPASS OR A PHYSICAL INVASION OF THE SPEAKER'S
CONSTITUTIONALLY PROTECTED AREA, AND (2) LEE V. FLORIDA, 392 U.S. 378
EXTENDED THE RULE EXCLUDING EVIDENCE VIOLATING OF SEC. 605 OF THE
FEDERAL COMMUNICATIONS ACT TO STATE TRIALS; AND BOTH KATZ V. UNITED
STATES AND LEE V. FLORIDA HAVE BEEN HELD TO APPLY PROSPECTIVE ONLY
(DESIST V. UNITED STATES, ANTE, P. 244, AND FULLER V. ALASKA, 393 U.S.
80, RESPECTIVELY, PP. 281-283. 

21 N.Y.2D 86, 233 N.E.2D 818, AFFIRMED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED IN A NEW YORK TRIAL COURT IN 1966 ON
THREE COUNTS OF CONSPIRACY TO EXTORT, ATTEMPTED EXTORTION, AND
COERCION.  THE CASE FOR THE PROSECUTION RESTED PRINCIPALLY ON THE
CONTENT OF TWO TELEPHONE CONVERSATIONS BETWEEN THE PETITIONER AND ONE
OF HIS COCONSPIRATORS.  TAPES AND TRANSCRIPTS OF THIS CONVERSATIONS
WERE INTRODUCED AT THE TRIAL OVER THE PETITIONER'S OBJECTION THAT THEY
HAD BEEN OBTAINED BY AN UNLAWFUL WIRETAP.  THE CONVICTION WAS AFFIRMED
BY THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK /1/  AND BY
THE NEW YORK COURT OF APPEALS.  /2/  WE GRANTED CERTIORARI.  /3/ 

THE TELEPHONE CALLS IN QUESTION WERE MADE IN 1964 TO A CO
CONSPIRATOR AT A BAR IN MANHATTAN.  THE CONVERSATIONS WERE RECORDED BY
MEANS OF A DEVICE ATTACHED TO WIRES OF THE CENTRAL TERMINAL BOX IN THE
BASEMENT OF THE BUILDING IN WHICH THE BAR WAS LOCATED.  THIS
WIRETAPPING WAS CONDUCTED PURSUANT TO A WARRANT ISSUED UNDER N.Y. CODE
CRIM. PROC. SEC. 813-A, THE STATUTE WITH WHICH THIS COURT SUBSEQUENTLY
DEALT IN BERGER V. NEW YORK, 388 U.S. 41, IN REVERSING A CONVICTION
UNDER THE FOURTH AND FOURTEENTH AMENDMENTS. 

THE PETITIONER CONTENDS THAT THE FOURTH AND FOURTEENTH AMENDMENTS AS
CONSTRUED IN BERGER, AS WELL AS SEC. 605 OF THE FEDERAL COMMUNICATIONS
ACT, /4/  PROHIBITED THE INTRODUCTION OF THE INTERCEPTED CONVERSATIONS
AND THEREFORE REQUIRE REVERSAL OF HIS CONVICTION.  FOR THE REASONS
STATED BELOW, WE REJECT THESE CONTENTIONS AND AFFIRM THE JUDGMENT OF
THE NEW YORK COURT OF APPEALS.  /5/ 

NOT UNTIL LAST TERM IN KATZ V. UNITED STATES, 389 U.S. 347, DID THIS
COURT OVERRULE ITS PRIOR DECISIONS THAT THE FOURTH AMENDMENT
ENCOMPASSED SEIZURES OF SPEECH ONLY IF THE LAW ENFORCEMENT OFFICERS
COMMITTED A TRESPASS OR AT LEAST PHYSICALLY INVADED A CONSTITUTIONALLY
PROTECTED AREA OF THE SPEAKER.  /6/  OLMSTEAD V. UNITED STATES, 277
U.S. 438, EXPLICITLY HELD THAT WIRETAPPING CONDUCTED WITHOUT SUCH AN
INTRUSION WAS NOT AN UNLAWFUL SEARCH OR SEIZURE.  THAT RULE WAS NOT
MODIFIED BY BERGER V. NEW YORK.  THE COURT'S DISCUSSION OF OLMSTEAD IN
BERGER, WHILE RECOGNIZING THAT OTHER CASES HAD NEGATED THE STATEMENTS
IN OLMSTEAD THAT CONVERSATIONS ARE NEVER PROTECTED BY THE FOURTH
AMENDMENT, CAST NO DOUBT UPON "(THE BASIS OF THE (OLMSTEAD) DECISION"--
"THAT THE CONSTITUTION DID NOT FORBID THE OBTAINING OF EVIDENCE BY
WIRETAPPING UNLESS IT INVOLVED ACTUAL UNLAWFUL ENTRY INTO THE HOUSE." 
/7/  FURTHERMORE, THE COURT IN BERGER FOUND THE OVERBREADTH OF N.Y.
CODE CRIM. PROC. SEC. 813-A A REPUGNANT TO THE FOURTH AMENDMENT ONLY TO
THE LIMITED EXTENT THAT IT PERMITTED A "TRESPASSORY INTRUSION INTO A
CONSTITUTIONALLY PROTECTED AREA."  /8/ 

OLMSTEAD, THEN STATED THE CONTROLLING INTERPRETATION OF THE FOURTH
AMENDMENT WITH RESPECT TO WIRETAPPING UNTIL IT WAS OVERRULED BY KATZ. 
AND IN DESIST V. UNITED STATES, ANTE, P. 244, WE HAVE HELD TODAY THAT
KATZ IS TO BE APPLIED WHOLLY PROSPECTIVELY.  SINCE THE WIRETAPPING IN
THIS CASE OCCURRED BEFORE KATZ WAS DECIDED AND WAS ACCOMPLISHED WITHOUT
ANY INTRUSION INTO A CONSTITUTIONALLY PROTECTED AREA OF THE PETITIONER,
ITS FRUITS WERE NOT INADMISSIBLE UNDER THE EXCLUSIONARY RULE OF THE
FOURTH AND FOURTEENTH AMENDMENTS.  MAPP V. OHIO, 367 U.S. 643. 

NOR DID SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT REQUIRE EXCLUSION
OF THE INTERCEPTED CONVERSATIONS.  UNTIL OUR DECISION LAST TERM IN LEE
V. FLORIDA, 392 U.S. 378, STATE TRIAL COURTS WERE FREE TO ACCEPT
EVIDENCE VIOLATIVE OF SEC. 605.  /9/  LEE EXTENDED THE NARDONE /10/
EXCLUSIONARY RULE OF SEC. 605 TO THE STATES, BUT THAT DECISION HAS ALSO
BEEN HELD TO APPLY ONLY PROSPECTIVELY.  FULLER V. ALASKA, 393 U.S. 80. 
THE WIRETAPPING EVIDENCE WAS INTRODUCED AT THE PETITIONER'S TRIAL IN
1966, LONG BEFORE THE DATE OF OUR DECISION IN LEE. 

 AFFIRMED. 

/1/  28 APP.DIV.2D 647, 282 N.Y.S.2D 207. 

/2/  N.Y.2D 86, 233 N.E.2D 818. 

/3/  390 U.S. 1023. 

/4/  SECTION 605, 48 STAT. 1103, 47 U.S.C. 605, READS IN PERTINENT
PART AS FOLLOWS: 

"(NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT ANY
COMMUNICATION AND DIVULGE . . . THE EXISTENCE, CONTENTS, SUBSTANCE,
PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED COMMUNICATION TO ANY
PERSON.  . . " 

/5/  THE PETITIONER ALSO CONTENDS THAT THE PROSECUTOR'S REFERENCES TO
THE RECORDED CONVERSATIONS AS "CONFESSIONS" WERE SO INACCURATE AND
MISLEADING AS TO DENY HIM DUE PROCESS.  WE DO NOT BELIEVE THAT THAT
CHARACTERIZATION OF THE EVIDENCE RAISES ANY SUBSTANTIAL FEDERAL
QUESTION.  THE JURY WAS AWARE THAT THE PROSECUTOR WAS ADVERTING TO THE
OVERHEARD CONVERSATIONS AND KNEW THE CIRCUMSTANCES UNDER WHICH THE
INCRIMINATING STATEMENTS HAD BEEN MADE.  IN CONTRAST TO THE SITUATION
IN MILLER V. PATE, 386 U.S. 1, THERE WAS HERE NO MISREPRESENTATION
ABOUT EVIDENCE WHICH THE JURORS WERE NOT THEMSELVES IN A POSITION TO
EVALUATE. 

/6/  SEE DESIST V. UNITED STATES, ANTE, AT 247-248. 

/7/  388 U.S.,AT 51. 

/8/  ID., AT 44.  SEE ALSO ID., AT 43, 57, 60, 64, 69. 

/9/  SCHWARTZ V. TEXAS, 344 U.S. 199. 

/10/  NARDONE V. UNITED STATES, 302 U.S. 379, HOLDING THAT EVIDENCE
SEIZED IN VIOLATION OF SEC. 605 BY FEDERAL OFFICERS WAS NOT ADMISSIBLE
IN FEDERAL CRIMINAL TRIALS.  SEE ALSO BENANTI V. UNITED STATES, 355
U.S. 96, HOLDING THAT SUCH EVIDENCE SEIZED BY STATE OFFICERS MUST ALSO
BE EXCLUDED FROM FEDERAL TRIALS. 

MR. JUSTICE BLACK CONCURS IN THE RESULT FOR THE REASONS STATED IN
HIS DISSENTING OPINIONS IN BERGER V. NEW YORK, 388 U.S. 41, 70 AND KATZ
V. UNITED STATES, 389 U.S. 347, 364. 

MR. JUSTICE DOUGLAS DISSENTS. 

(FOR DISSENTING OPINION OF MR. JUSTICE FORTAS, SEE ANTE, P. 269.) 

MR JUSTICE HARLAN, DISSENTING. 

IT IS CONCEDED THAT PETITIONER'S CONVICTION RESTED LARGELY UPON
EVIDENCE ACQUIRED BY NONTRESPASSORY WIRETAPPING CONDUCTED PURSUANT TO A
WARRANT ISSUED UNDER N.Y. CODE CRIM. PROC. SEC. 813-A.  THE COURT
AFFIRMS THE CONVICTION ON THE GROUND THAT TODAY'S DECISION IN DESIST V.
UNITED STATES, ANTE, P. 244, NECESSARILY DICTATES THAT EVIDENCE
OBTAINED BY AN ILLEGAL, NONTRESPASSORY WIRETAP WILL BE INADMISSIBLE
ONLY IF THE TAPPING OCCURRED AFTER THE DATE OF THE IN KATZ V. UNITED
STATES, 389 U.S. 347 (1967).  THE WIRETAPPING IN THIS CASE TOOK PLACE
PRIOR TO KATZ.  HOWEVER, THE CASE IS HERE ON DIRECT REVIEW, AND FOR THE
REASONS STATED IN PART I OF MY DISSENTING OPINION IN DESIST, SUPRA, AT
258-259, I WOULD HOLD THAT PETITIONER IS ENTITLED TO BENEFIT FROM THE
KATZ RULE. 

IT IS THEREFORE NECESSARY FOR ME TO CONSIDER WHETHER PETITIONER'S
FEDERAL CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE WIRETAPPING.  WERE I
FREE TO DO SO, I WOULD DECIDE THIS ISSUE BY INQUIRING WHETHER, ON THE
FACTS OF THIS PARTICULAR CASE AND IN LIGHT OF NEW YORK DECISIONS
CONSTRUING SEC. 813-A, THE WIRETAPPING WAS VALID UNDER THE WARRANTS
CLAUSE OF THE FOURTH AMENDMENT.  SEE KER V. CALIFORNIA, 374 U.S. 23, 30
34 (1963); SEE ALSO MAPP V. OHIO, 367 U.S. 643 (1961).  HOWEVER, I
BELIEVE THAT THIS APPROACH IS FORECLOSED BY THIS COURT'S DECISION IN
BERGER V. NEW YORK, 388 U.S. 41 (1967).  IN BERGER, THE COURT HELD THAT
A "BUGGING" PURSUANT TO A SEC. 813-A WARRANT VIOLATED THE PETITIONER'S
FOURTH AMENDMENT RIGHTS BECAUSE ON ITS FACE THE STATUTE DID NOT CONTAIN
CONSTITUTIONALLY REQUIRED SAFEGUARDS.  IT IS TRUE THAT THE "BUGGING" IN
BERGER INVOLVED A TRESPASS AND THAT THE COURT DID NOT REACH THE
QUESTION WHETHER OLMSTEAD SHOULD BE OVERRULED.  BUT THE HOLDING THAT
SEC. 813-A WAS TO BE CONSIDERED ON ITS FACE RATHER THAN AS APPLIED
DEPENDED IN NO WAY UPON THE FACT OF PHYSICAL INTRUSION.  THE WARRANT
PROCEDURE PRESCRIBED IN SEC. 813-A APPLIES EQUALLY TO "BUGGING" AND TO
WIRETAPPING.  HENCE, THE COURT'S "ON ITS FACE" APPROACH WOULD SEEM
NECESSARILY TO EMBRACE SEC. 813-A WIRETAPPING. 

I DISSENTING FROM THE "ON ITS FACE" APPROACH ADOPTED IN BERGER.  SEE
388 U.S.,AT 89 ET SEQ. I CONTINUE TO DISAGREE WITH THAT APPROACH.  YET
I THINK THAT BERGER MUST BE TAKEN AS HAVING DECIDED THAT A WARRANT
ISSUED PURSUANT TO THE VERSION OF SEC. 813-A THEN IN EFFECT COULD NOT
POSSIBLY SATISFY THE REQUIREMENTS OF THE FOURTH AMENDMENT.  /1/  SINCE
I REGARD MYSELF AS BOUND BY BERGER, I AM RELUCTANTLY COMPELLED TO
CONCLUDE THAT THE WIRETAP EVIDENCE INTRODUCED AGAINST PETITIONER WAS
SEIZED IN VIOLATION OF THE CONSTITUTION, AND THAT HIS CONVICTION
CONSEQUENTLY CANNOT STAND. 

/1/  THERE WERE NO AMENDMENTS TO SEC. 813-A BETWEEN JUNE 1962, THE
DATE OF THE "BUGGING" IN BERGER, AND JULY 1964, THE DATE OF THE
WIRETAPPING IN THIS CASE.  NOR IN MY VIEW IS IT NECESSARY TO DECIDE
WHETHER BERGER SHOULD BE "RETROACTIVE."  THE PRESENT CASE WAS ON DIRECT
APPEAL IN THE NEW YORK COURTS AT THE TIME BERGER WAS DECIDED, AND
PETITIONER IS THEREFORE ENTITLED TO INVOKE BERGER UNDER THE RULE
ADVANCED IN PART I OF MY DISSENTING OPINION IN DESIST. 

HENRY J. BOITEL, PRO HAC VICE, AND PETER L. F. SABBATINO ARGUED THE
CAUSE AND FILED BRIEFS FOR PETITIONER. 

WILLIAM CAHN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WAS GEORGE DANZIG LEVINE. 
..END :







HARRIS V. NELSON, 394 U.S. 286 


       HARRIS, U.S. DISTRICT JUDGE (WALKER, REAL PARTY IN INTEREST)

           V. NELSON, WARDEN. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

   NINTH CIRCUIT. 

        NO. 199.  ARGUED DECEMBER 9, 1968.-- DECIDED MARCH 24,

           1969. 


A STATE PRISONER FILED A HABEAS CORPUS PETITION IN THE FEDERAL
DISTRICT COURT, ALLEGING THAT THE ADMISSION OF CERTAIN EVIDENCE AT HIS
TRIAL WAS IMPROPER BECAUSE THE EVIDENCE HAD BEEN SEIZED INCIDENT TO AN
ARREST BASED UPON INFORMATION FROM AN UNRELIABLE INFORMANT.  THE
DISTRICT COURT ORDERED AN EVIDENTIARY HEARING AND THE PRISONER SERVED
ON RESPONDENT A SERIES OF INTERROGATORIES PURSUANT TO RULE 33 OF THE
FEDERAL RULES OF CIVIL PROCEDURE DESIGNED TO ESTABLISH THE INFORMANT'S
UNRELIABILITY.  THE DISTRICT COURT OVERRULED RESPONDENT'S OBJECTIONS
THAT THERE WAS NO AUTHORITY FOR ISSUANCE OF THE INTERROGATORIES.  UPON
RESPONDENT'S PETITION FOR A WRIT OF MANDAMUS OR PROHIBITION THE COURT
OF APPEALS VACATED THE DISTRICT COURT'S ORDER AUTHORIZING THE
INTERROGATORIES, ON THE GROUNDS THAT RULE 81(A)(2) MADE THE DISCOVERY
PROCEDURES OF THE FEDERAL RULES OF CIVIL PROCEDURE INAPPLICABLE TO
HABEAS CORPUS PROCEEDINGS AND THAT THE STATUTORY PROVISION FOR
INTERROGATORIES IN HABEAS CORPUS PROCEEDINGS (28 U.S.C. 2246) DID NOT
AUTHORIZE THEIR USE FOR DISCOVERY.  RULE 81(A)(2) AT THAT TIME PROVIDED
THAT THE RULES DID NOT APPLY TO HABEAS CORPUS PROCEEDINGS "EXCEPT TO
THE EXTENT THAT THE PRACTICE IN SUCH PROCEEDINGS IS NOT SET FORTH IN
STATUTES OF THE UNITED STATES AND HAS HERETOFORE CONFORMED TO THE
PRACTICE IN ACTIONS AT LAW OR SUITS IN EQUITY."  HELD: 

1.  FEDERAL COURTS UPON AN APPROPRIATE SHOWING MUST GRANT
EVIDENTIARY HEARINGS TO PETITIONERS FOR WRITS OF HABEAS CORPUS AND "THE
POWER OF INQUIRY ON FEDERAL HABEAS CORPUS IS PLENARY."  TOWNSEND V.
SAIN, 372 U.S. 293, 312 (1963).  PP. 290-292. 

2.  THE INTENDED SCOPE OF THE FEDERAL RULES OF CIVIL PROCEDURE AND
THE HISTORY OF HABEAS CORPUS PROCEDURE MAKE IT CLEAR THAT RULE 81(A)(2)
EXCLUDES THE APPLICATION OF RULE 33 IN HABEAS CORPUS PROCEEDINGS.  PP.
292-298. 

3.  SECTION 2246 OF 28 U.S.C. DOES NOT AUTHORIZE INTERROGATORIES IN
HABEAS CORPUS PROCEEDINGS EXCEPT IN LIMITED CIRCUMSTANCES NOT
APPLICABLE TO THIS CASE.  PP. 290, 296. 

4.  A DISTRICT COURT CONSIDERING A PETITION FOR HABEAS CORPUS IS
FREE TO USE OR AUTHORIZE INTERROGATORIES OR OTHER SUITABLE DISCOVERY
PROCEDURES REASONABLY FASHIONED TO ELICIT FACTS TO HELP THE COURT
"DISPOSE OF THE MATTER AS LAW AND JUSTICE REQUIRE."  28 U.S.C. 2243. 
PP. 290, 298-300. 

5.  SINCE CONGRESS HAS NOT SPECIFIED COMPREHENSIVE PROCEDURES FOR
SECURING THE FACTS WHICH FEDERAL COURTS MUST HAVE TO DISPOSE OF HABEAS
CORPUS PETITIONS, THE COURTS MAY FASHION APPROPRIATE PROCEDURES FOR
DEVELOPMENT OF RELEVANT FACTS, BY ANALOGY TO EXISTING RULES OR JUDICIAL
USAGES.  THEIR AUTHORITY TO DO SO IS CONFIRMED BY THE ALL WRITS ACT, 28
U.S.C. 1651.  PP. 298 300. 

378 F.2D 141, REVERSED AND REMANDED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER STATE PRISONERS WHO HAVE
COMMENCED HABEAS CORPUS PROCEEDINGS IN A FEDERAL DISTRICT COURT MAY, IN
PROPER CIRCUMSTANCES, UTILIZE THE INSTRUMENT OF INTERROGATORIES FOR
DISCOVERY PURPOSES. 

        I. 

PETITIONER IS THE CHIEF JUDGE OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA.  RESPONDENT IS THE WARDEN OF
THE CALIFORNIA STATE PRISON AT SAN QUENTIN.  THE PROCEEDING WAS
INITIATED BY ALFRED WALKER WHO HAD BEEN CONVICTED IN THE CALIFORNIA
COURTS OF THE CRIME OF POSSESSION OF MARIHUANA.  AFTER EXHAUSTING STATE
REMEDIES, HE FILED A PETITION FOR HABEAS CORPUS IN THE FEDERAL DISTRICT
COURT, ALLEGING THAT EVIDENCE SEIZED IN THE SEARCH INCIDENT TO HIS
ARREST WAS IMPROPERLY ADMITTED AT HIS TRIAL.  THE BASIS FOR THIS CLAIM
WAS HIS ALLEGATION THAT THE ARREST AND INCIDENTAL SEARCH WERE BASED
SOLELY ON THE STATEMENT OF AN INFORMANT WHO, ACCORDING TO WALKER'S
SWORN STATEMENT, WAS NOT SHOWN TO HAVE BEEN RELIABLE; WHO, IN FACT, WAS
UNRELIABLE; AND WHOSE STATEMENTS WERE ACCEPTED BY THE POLICE WITHOUT
PROPER PRECAUTIONARY PROCEDURES. 

THE DISTRICT COURT ISSUED AN ORDER TO SHOW CAUSE AND RESPONDENT MADE
RETURN.  THEREAFTER, WALKER FILED A MOTION FOR AN EVIDENTIARY HEARING,
WHICH THE DISTRICT COURT GRANTED.  TWO MONTHS LATER, WALKER SERVED UPON
THE RESPONDENT WARDEN A SERIES OF INTERROGATORIES, PURSUANT TO RULE 33
OF THE FEDERAL RULES OF CIVIL PROCEDURE, SEEKING DISCOVERY OF CERTAIN
FACTS DIRECTED TO PROOF OF THE INFORMANT'S UNRELIABILITY.  RESPONDENT
FILED OBJECTIONS TO THE INTERROGATORIES, ALLEGING THE ABSENCE OF
AUTHORITY FOR THEIR ISSUANCE.  THE DISTRICT JUDGE, WITHOUT STATING HIS
REASONS, DISALLOWED THE OBJECTIONS AND DIRECTED THAT THE
INTERROGATORIES BE ANSWERED.  RESPONDENT APPLIED TO THE COURT OF
APPEALS FOR THE NINTH CIRCUIT FOR A WRIT OF MANDAMUS OR PROHIBITION. 
THE NINTH CIRCUIT VACATED THE ORDER OF THE DISTRICT COURT.  IT HELD
THAT THE DISCOVERY PROVISIONS OF THE FEDERAL RULES OF CIVIL PROCEDURE
WERE NOT APPLICABLE TO HABEAS CORPUS PROCEEDINGS AND THAT 28 U.S.C.
2246, THE STATUTORY PROVISION SPECIFICALLY RELATING TO THE USE OF
INTERROGATORIES IN HABEAS CORPUS PROCEEDINGS, DID NOT AUTHORIZE THEIR
USE FOR DISCOVERY.  WILSON V. HARRIS, 378 F.2D 141 (1967). 

BECAUSE OF THE IMPORTANCE OF THE QUESTIONS PRESENTED AND THE DIVERSITY
OF VIEWS AMONG THE DISTRICT AND APPELLATE COURTS THAT HAVE CONSIDERED
THE PROBLEM, /1/  WE GRANTED CERTIORARI.  392 U.S. 925.  WE AGREE WITH
THE NINTH CIRCUIT THAT RULE 33 OF THE FEDERAL RULES OF CIVIL PROCEDURE
IS NOT APPLICABLE TO HABEAS CORPUS PROCEEDINGS AND THAT 28 U.S.C. 2246
DOES NOT AUTHORIZE INTERROGATORIES EXCEPT IN LIMITED CIRCUMSTANCES NOT
APPLICABLE TO THIS CASE; BUT WE CONCLUDE THAT, IN APPROPRIATE
CIRCUMSTANCES, A DISTRICT COURT, CONFRONTED BY A PETITION FOR HABEAS
CORPUS WHICH ESTABLISHES A PRIMA FACIE CASE FOR RELIEF, MAY USE OR
AUTHORIZE THE USE OF SUITABLE DISCOVERY PROCEDURES, INCLUDING
INTERROGATORIES, REASONABLY FASHIONED TO ELICIT FACTS NECESSARY TO HELP
THE COURT TO "DISPOSE OF THE MATTER AS LAW AND JUSTICE REQUIRE."  28
U.S.C. 2243.  ACCORDINGLY, WE REVERSE AND REMAND THE CASE IN ORDER THAT
THE DISTRICT COURT MAY RECONSIDER THE MATTER BEFORE IT IN LIGHT OF OUR
OPINION AND JUDGMENT. 

        II. 

THE WRIT OF HABEAS CORPUS IS THE FUNDAMENTAL INSTRUMENT FOR
SAFEGUARDING INDIVIDUAL FREEDOM AGAINST ARBITRARY LAWLESS STATE
ACTION.  ITS PRE-EMINENT ROLE IS RECOGNIZED BY THE ADMONITION IN THE
CONSTITUTION THAT: "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL
NOT BE SUSPENDED . . . "  U.S. CONST., ART. I, SEC. 9, CL. 2.  THE
SCOPE AND FLEXIBILITY OF THE WRIT-- ITS CAPACITY TO REACH ALL MANNER OF
ILLEGAL DETENTION-- ITS ABILITY TO CUT THROUGH BARRIERS OF FORM AND
PROCEDURAL MAZES-- HAVE ALWAYS BEEN EMPHASIZED AND JEALOUSLY GUARDED BY
COURTS AND LAWMAKERS.  THE VERY NATURE OF THE WRIT DEMANDS THAT IT BE
ADMINISTERED WITH THE INITIATIVE AND FLEXIBILITY ESSENTIAL TO INSURE
THAT MISCARRIAGES OF JUSTICE WITHIN ITS REACH ARE SURFACED AND
CORRECTED. 

AS BLACKSTONE PHRASED IT, HABEAS CORPUS IS "THE GREAT AND
EFFICACIOUS WRIT, IN ALL MANNER OF ILLEGAL CONFINEMENT."  /2/  AS THIS
COURT SAID IN FAY V. NOIA, 372 U.S. 391, 401-402 (1963), THE OFFICE OF
THE WRIT IS "TO PROVIDE A PROMPT AND EFFICACIOUS REMEDY FOR WHATEVER
SOCIETY DEEMS TO BE INTOLERABLE RESTRAINTS."  SEE PEYTON V. ROWE, 391
U.S. 54, 65-67 (1968). 

IT IS NOW ESTABLISHED BEYOND THE REACH OF REASONABLE DISPUTE THAT
THE FEDERAL COURTS NOT ONLY MAY GRANT EVIDENTIARY HEARINGS TO
APPLICANTS, BUT MUST DO SO UPON AN APPROPRIATE SHOWING.  TOWNSEND V.
SAIN, 372 U.S. 293, 313 (1963); BROWN V. ALLEN, 344 U.S. 443, 464, N.
19 (1953).  AND THIS COURT HAS EMPHASIZED TAKING INTO ACCOUNT THE
OFFICE OF THE WRIT AND THE FACT THAT THE PETITIONER, BEING IN CUSTODY,
IS USUALLY HANDICAPPED IN DEVELOPING THE EVIDENCE NEEDED TO SUPPORT IN
NECESSARY DETAIL THE FACTS ALLEGED IN HIS PETITION, THAT A HABEAS
CORPUS PROCEEDING MUST NOT BE ALLOWED TO FOUNDER IN A "PROCEDURAL
MORASS."  PRICE V. JOHNSTON, 334 U.S. 266, 269 (2948). 

THERE IS NO HIGHER DUTY OF A COURT, UNDER OUR CONSTITUTIONAL SYSTEM,
THAN THE CAREFUL PROCESSING AND ADJUDICATION OF PETITIONS FOR WRITS OF
HABEAS CORPUS, FOR IT IS IN SUCH PROCEEDINGS THAT A PERSON IN CUSTODY
CHARGES THAT ERROR, NEGLECT, OR EVIL PURPOSE HAS RESULTED IN HIS
UNLAWFUL CONFINEMENT AND THAT HE IS DEPRIVED OF HIS FREEDOM CONTRARY TO
LAW.  THIS COURT HAS INSISTENTLY SAID THAT THE POWER OF THE FEDERAL
COURTS TO CONDUCT INQUIRY IN HABEAS CORPUS IS EQUAL TO THE
RESPONSIBILITY WHICH THE WRIT INVOLVES:  "THE LANGUAGE OF CONGRESS, THE
HISTORY OF THE WRIT, THE DECISIONS OF THIS COURT, ALL MAKE CLEAR THAT
THE POWER OF INQUIRY ON FEDERAL HABEAS CORPUS IS PLENARY."  TOWNSEND V.
SAIN, SUPRA, AT 312. 

IN THE PRESENT CASE, WE ARE CONFRONTED WITH A PROCEDURAL PROBLEM
WHICH TESTS THE REALITY OF THESE GREAT PRINCIPLES.  WE ARE ASKED BY
WALKER TO ESTABLISH THE EXISTENCE OF RIGHTS FOR THOSE IN CUSTODY TO
DISCOVER FACTS WHICH MAY AID THEIR PETITIONS FOR RELEASE.  WE ARE ASKED
TO DO THIS BY DECLARING THAT THE PROVISIONS OF THE FEDERAL RULES OF
CIVIL PROCEDURE GRANTING SUCH RIGHTS TO LITIGANTS IN CIVIL CAUSES ARE
AVAILABLE TO WALKER; OR IF WE REFUSE SO TO CONCLUDE, TO AFFIRM THE
EXISTENCE OF POWER IN THE DISTRICT COURT TO AUTHORIZE DISCOVERY BY
WRITTEN INTERROGATORIES.  WE ADDRESS OURSELVES TO THOSE ISSUES. 

        III. 

RULE 1 OF THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDES THAT:
"THESE RULES GOVERN THE PROCEDURE IN THE UNITED STATES DISTRICT COURTS
IN ALL SUITS OF A CIVIL NATURE . . . WITH THE EXCEPTIONS STATED IN RULE
81."  AT THE TIME OF THE DECISION BELOW RULE 81(A)(2) PROVIDED, IN
RELEVANT PART, THAT THE RULES WERE NOT APPLICABLE IN HABEAS CORPUS
"EXCEPT TO THE EXTENT THAT THE PRACTICE IN SUCH PROCEEDINGS IS NOT SET
FORTH IN STATUTES OF THE UNITED STATES AND HAS HERETOFORE CONFORMED TO
THE PRACTICE IN ACTIONS AT LAW OR SUITS IN EQUITY."  /3/ 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT HELD THAT THE SECOND
REQUIREMENT-- "CONFORMITY" WITH PRACTICE-- MADE IT NECESSARY TO SHOW
THAT "PRIOR TO SEPTEMBER 16, 1938, DISCOVERY WAS ACTUALLY BEING USED IN
HABEAS PROCEEDINGS, AND THAT SUCH USE CONFORMED TO THE THEN DISCOVERY
PRACTICE IN ACTIONS AT LAW OR SUITS IN EQUITY."  378 F.2D, AT 144.  NO
SUCH SHOWING WAS MADE AND IT IS NOT HERE CONTENDED THAT IT CAN BE
MADE.  WALKER CONTENDS, HOWEVER, THAT THE RULE REQUIRES ONLY A SHOWING
THAT HABEAS PROCEEDINGS CONFORMED GENERALLY TO PRE-EXISTING PRACTICE IN
LAW AND EQUITY, AND HE CONTENDS THAT THIS GENERAL REQUIREMENT IS MET. 

WE NEED NOT CONSIDER THIS CONTENTION THAT THE COURT OF APPEALS TOOK
AN UNNECESSARILY RESTRICTED VIEW OF THE THRUST OF THE "CONFORMITY"
REQUIREMENT, BECAUSE FOR OTHER REASONS WE CONCLUDE THAT THE INTENDED
SCOPE OF THE FEDERAL RULES OF CIVIL PROCEDURE AND THE HISTORY OF HABEAS
CORPUS PROCEDURE, MAKE IT CLEAR THAT RULE 81(A)(2) MUST BE READ TO
EXCLUDE THE APPLICATION OF RULE 33 IN HABEAS CORPUS PROCEEDINGS. 

IT IS, OF COURSE, TRUE THAT HABEAS CORPUS PROCEEDINGS ARE
CHARACTERIZED AS "CIVIL."  SEE, E.G., FISHER V. BAKER, 203 U.S. 174,
181 (1906).  BUT THE LABEL IS GROSS AND INEXACT.  /4/  ESSENTIALLY, THE
PROCEEDING IS UNIQUE.  HABEAS CORPUS PRACTICE IN THE FEDERAL COURTS HAS
CONFORMED WITH CIVIL PRACTICE ONLY IN A GENERAL SENSE.  THERE IS NO
INDICATION THAT WITH RESPECT TO PRETRIAL PROCEEDINGS FOR THE
DEVELOPMENT OF EVIDENCE, HABEAS CORPUS PRACTICE HAD CONFORMED TO THE
PRACTICE AT LAW OR IN EQUITY "TO THE EXTENT" THAT THE APPLICATION OF
RULES NEWLY DEVELOPED IN 1938 TO GOVERN DISCOVERY IN "CIVIL" CASES
SHOULD APPLY IN ORDER TO AVOID A DIVERGENCE IN PRACTICE WHICH HAD
THERETOFORE BEEN SUBSTANTIALLY UNIFORM.  ALTHOUGH THERE IS LITTLE
DIRECT EVIDENCE, RELEVANT TO THE PRESENT PROBLEM, OF THE PURPOSE OF THE
"CONFORMITY" PROVISION OF RULE 81(A)(2), THE CONCERN OF THE DRAFTSMEN,
AS A GENERAL MATTER, SEEMS TO HAVE BEEN TO PROVIDE FOR THE CONTINUING
APPLICABILITY OF THE "CIVIL" RULES IN THEIR NEW FORM TO THOSE AREAS OF
PRACTICE IN HABEAS CORPUS AND OTHER ENUMERATED PROCEEDINGS IN WHICH THE
"SPECIFIED" PROCEEDINGS HAD THERETOFORE UTILIZED THE MODES OF CIVIL
PRACTICE.  OTHERWISE, THOSE PROCEEDINGS WERE TO BE CONSIDERED OUTSIDE
OF THE SCOPE OF THE RULES WITHOUT PREJUDICE, OF COURSE, TO THE USE OF
PARTICULAR RULES BY ANALOGY OR OTHERWISE, WHERE APPROPRIATE.  /5/ 

SUCH SPECIFIC EVIDENCE AS THERE IS WITH RESPECT TO THE INTENT OF THE
DRAFTSMEN OF THE RULES INDICATES NOTHING MORE THAN A GENERAL AND
NONSPECIFIC UNDERSTANDING THAT THE RULES WOULD HAVE VERY LIMITED
APPLICATION TO HABEAS CORPUS PROCEEDINGS.  AT THE VERY LEAST, IT IS
CLEAR THAT THERE WAS NO INTENTION TO EXTEND TO HABEAS CORPUS, AS A
MATTER OF RIGHT, THE BROAD DISCOVERY PROVISIONS WHICH, EVEN IN ORDINARY
CIVIL LITIGATION, WERE "ONE OF THE MOST SIGNIFICANT INNOVATIONS" OF THE
NEW RULES.  HICKMAN V. TAYLOR, 329 U.S. 495, 500 (1947).  WALKER DOES
NOT CLAIM THAT THERE WAS ANY GENERAL DISCOVERY PRACTICE IN HABEAS
CORPUS PROCEEDINGS PRIOR TO ADOPTION OF THE FEDERAL RULES OF CIVIL
PROCEDURE. 

IN CONSIDERING THE INTENDED APPLICATION OF THE NEW RULES TO HABEAS
CORPUS, IT IS ILLUMINATING TO NOTE THAT IN 1938 THE EXPANSION OF
FEDERAL HABEAS CORPUS TO ITS PRESENT SCOPE WAS ONLY IN ITS EARLY
STAGES.  MOONEY V. HOLOHAN 294 U.S. 103 (1935); JOHNSON V. ZERBST, 304
U.S. 458 (1938); WALEY V. JOHNSTON, 316 U.S. 101, (1942).  IT WAS NOT
UNTIL MANY YEARS LATER THAT THE FEDERAL COURTS CONSIDERING A HABEAS
CORPUS PETITION WERE HELD TO BE REQUIRED IN MANY CASES TO MAKE AN
INDEPENDENT DETERMINATION OF THE FACTUAL BASIS OF CLAIMS THAT STATE
CONVICTIONS HAD VIOLATED THE PETITIONER'S FEDERAL CONSTITUTIONAL
RIGHTS.  BROWN V. ALLEN, 344 U.S. 443 (1953); TOWNSEND V. SAIN, 372
U.S. 293 (1963).  IN THESE CIRCUMSTANCES IT IS READILY UNDERSTANDABLE
THAT, AS INDICATED BY THE LANGUAGE AND THE SCANTY CONTEMPORARY EXEGESIS
OF RULE 81(A)(2) WHICH IS AVAILABLE, THE DRAFTSMEN OF THE RULE DID NOT
CONTEMPLATE THAT THE DISCOVERY PROVISIONS OF THE RULES WOULD BE
APPLICABLE TO HABEAS CORPUS PROCEEDINGS. 

IT IS ALSO OF SOME RELEVANCE THAT IN 1948, WHEN CONGRESS ENACTED 28
U.S.C. 2246 EXPRESSLY REFERRING TO THE RIGHT OF PARTIES IN HABEAS
CORPUS PROCEEDINGS TO PROPOUND WRITTEN INTERROGATORIES, ITS LEGISLATION
WAS LIMITED TO INTERROGATORIES FOR THE PURPOSE OF OBTAINING EVIDENCE
FROM AFFIANTS WHERE AFFIDAVITS WERE ADMITTED IN EVIDENCE.  AGAIN, THE
RESTRICTED SCOPE OF THIS LEGISLATION INDICATES THAT THE ADOPTION IN
1938 OF THE FEDERAL RULES OF CIVIL PROCEDURE WAS NOT INTENDED TO MAKE
AVAILABLE IN HABEAS CORPUS PROCEEDINGS THE DISCOVERY PROVISIONS OF
THOSE RULES. 

INDEED, IT IS DIFFICULT TO BELIEVE THAT THE DRAFTSMEN OF THE RULES
OR CONGRESS WOULD HAVE APPLIED THE DISCOVERY RULES WITHOUT MODIFICATION
TO HABEAS CORPUS PROCEEDINGS BECAUSE THEIR SPECIFIC PROVISIONS ARE ILL
SUITED TO THE SPECIAL PROBLEMS AND CHARACTER OF SUCH PROCEEDINGS.  FOR
EXAMPLE, RULE 33, WHICH WALKER HERE INVOKED, PROVIDES FOR WRITTEN
INTERROGATORIES TO BE SERVED BY ANY PARTY UPON ANY "ADVERSE PARTY."  AS
THE PRESENT CASE ILLUSTRATES, THIS WOULD USUALLY MEAN THAT THE
PRISONER'S INTERROGATORIES MUST BE DIRECTED TO THE WARDEN ALTHOUGH THE
WARDEN WOULD BE UNABLE TO ANSWER FROM PERSONAL KNOWLEDGE QUESTIONS
RELATING TO PETITIONER'S ARREST AND TRIAL.  PRESUMABLY THE WARDEN COULD
SOLICIT ANSWERS FROM THE APPROPRIATE OFFICIALS AND REPLY "UNDER OATH,"
AS THE RULE REQUIRES, BUT THE WARDEN IS CLEARLY NOT THE KIND OF
"ADVERSE PARTY" CONTEMPLATED BY THE DISCOVERY RULES, AND THE RESULT OF
THEIR LITERAL APPLICATION WOULD BE TO INVOKE A PROCEDURE WHICH IS
CIRCUITOUS, BURDENSOME, AND TIME CONSUMING. 

THE SCOPE OF INTERROGATORIES WHICH MAY BE SERVED UNDER RULE 33 ALSO
INDICATES THE UNSUITABILITY OF APPLYING TO HABEAS CORPUS PROVISIONS
WHICH WERE DRAFTED WITHOUT REFERENCE TO ITS PECULIAR PROBLEMS. 

BY REFERENCE TO RULE 26(B), THE RULE WOULD GIVE THE PRISONER A RIGHT
TO INQUIRE INTO "ANY MATTER, NOT PRIVILEGED, WHICH IS RELEVANT TO THE
SUBJECT MATTER INVOLVED IN THE PENDING ACTION," WHETHER ADMISSIBLE AT
TRIAL OR NOT.  THIS RULE HAS BEEN GENEROUSLY CONSTRUED TO PROVIDE A
GREAT DEAL OF LATITUDE FOR DISCOVERY.  SEE HICKMAN V. TAYLOR, SUPRA, AT
507; 2A BARRON & HOLTZOFF, SUPRA, SEC. 646.  SUCH A BROAD-RANGING
PRELIMINARY INQUIRY IS NEITHER NECESSARY NOR APPROPRIATE IN THE CONTEXT
OF A HABEAS CORPUS PROCEEDING.     EXCEPT FOR INTERROGATORIES TO BE
SERVED BY THE "PLAINTIFF" WITHIN 10 DAYS AFTER THE COMMENCEMENT OF "THE
ACTION," RULE 33 PROVIDES THAT THE INTERROGATORIES MAY BE SERVED
WITHOUT LEAVE OF COURT.  THE "ADVERSE PARTY" MUST THEN TAKE THE
INITIATIVE TO CONTEST THE INTERROGATORIES AND A HEARING IN COURT ON HIS
OBJECTIONS IS REQUIRED.  UNAVOIDABLY, UNLESS THERE IS A MEASURE OF
RESPONSIBILTY IN THE ORIGINATOR OF THE PROCEEDING, THE "PLAINTIFF" OR
PETITIONER, THIS PROCEDURE CAN BE EXCEEDINGLY BURDENSOME AND
VEXATIOUS.  THE INTERROGATORY PROCEDURE WOULD BE AVAILABLE TO THE
PRISONERS THEMSELVES SINCE MOST HABEAS PETITIONS ARE PREPARED AND FILED
BY PRISONERS, GENERALLY WITHOUT THE GUIDANCE OR RESTRAINT OF MEMBERS OF
THE BAR.  FOR THIS REASON, TOO, WE CONCLUDE THAT THE LITERAL
APPLICATION OF RULE 33 TO HABEAS CORPUS PROCEEDINGS WOULD DO VIOLENCE
TO THE EFFICIENT AND EFFECTIVE ADMINISTRATION OF THE GREAT WRIT.  THE
BURDEN UPON COURTS, PRISON OFFICIALS, PROSECUTORS, AND POLICE, WHICH IS
NECESSARILY AND PROPERLY INCIDENT TO THE PROCESSING AND ADJUDICATION OF
HABEAS CORPUS PROCEEDINGS, WOULD BE VASTLY INCREASED; AND THE BENEFIT
TO PRISONERS WOULD BE COUNTERBALANCED BY THE DELAY WHICH THE ELABORATE
DISCOVERY PROCEDURES WOULD NECESSARILY ENTAIL. 

IT IS TRUE THAT THE AVAILABILITY OF RULE 33 WOULD PROVIDE PRISONERS
WITH AN INSTRUMENT OF DISCOVERY WHICH COULD BE ACTIVATED ON THEIR OWN
INITIATIVE, WITHOUT PRIOR COURT APPROVAL, AND THAT THIS WOULD BE OF
CONSIDERABLE TACTICAL ADVANTAGE TO THEM IN THE PROSECUTION OF THEIR
EFFORTS TO DEMONSTRATE SUCH ERROR IN THEIR TRIAL AS WOULD RESULT IN
THEIR RELEASE.  BUT DESPITE THE FORCEFUL AND INGENIOUS ARGUMENT OF
WALKER'S COUNSEL AND AMICI CURIAE, /6/  THIS CONSIDERATION CANNOT CARRY
THE DAY.  IT IS A LONG MARCH FROM THIS CONTENTION TO A CONCLUSION THAT
THE DISCOVERY PROVISIONS OF THE FEDERAL RULES OF CIVIL PROCEDURE WERE
INTENDED TO EXTEND TO HABEAS CORPUS PROCEEDINGS.  WE HAVE NO POWER TO
REWRITE THE RULES BY JUDICIAL INTERPRETATIONS.  WE HAVE NO POWER TO
DECIDE THAT RULE 33 APPLIES TO HABEAS CORPUS PROCEEDINGS UNLESS, ON
CONVENTIONAL PRINCIPLES OF STATUTORY CONSTRUCTION, WE CAN PROPERLY
CONCLUDE THAT THE LITERAL LANGUAGE OR THE INTENDED EFFECT OF THE RULES
INDICATES THAT THIS WAS WITHIN THE PURPOSE OF THE DRAFTSMEN OR THE
CONGRESSIONAL UNDERSTANDING. 

IV. 

TO CONCLUDE THAT THE FEDERAL RULES' DISCOVERY PROVISIONS DO NOT
APPLY COMPLETELY AND AUTOMATICALLY BY VIRTUE OF RULE 81(A)(2) IS NOT TO
SAY THAT THERE IS NO WAY IN WHICH A DISTRICT COURT MAY, IN AN
APPROPRIATE CASE, ARRANGE FOR PROCEDURES WHICH WILL ALLOW DEVELOPMENT,
FOR PURPOSES OF THE HEARING, OF THE FACTS RELEVANT TO DISPOSITION OF A
HABEAS CORPUS PETITION.  PETITIONERS IN HABEAS CORPUS PROCEEDINGS, AS
THE CONGRESS AND THIS COURT HAVE EMPHASIZED, AND AS WE HAVE EMPHASIZED,
AND AS WE HAVE DISCUSSED, SUPRA, AT 290-292, ARE ENTITLED TO CAREFUL
CONSIDERATION AND PLENARY PROCESSING OF THEIR CLAIMS INCLUDING FULL
OPPORTUNITY FOR PRESENTATION OF THE RELEVANT FACTS.  CONGRESS HAS
PROVIDED THAT ONCE A PETITION FOR A WRIT OF HABEAS CORPUS IS FILED,
UNLESS THE COURT IS OF THE OPINION THAT THE PETITIONER IS NOT ENTITLED
TO AN ORDER TO SHOW CAUSE, THE WRIT MUST BE AWARDED "FORTHWITH," OR AN
ORDER TO SHOW CAUSE MUST BE ISSUED.  28 U.S.C. 2243.  THEREAFTER, IF
THE COURT CONCLUDES THAT THE PETITIONER IS ENTITLED TO AN EVIDENTIARY
HEARING, CF. TOWNSEND V. SAIN, SUPRA; 28 U.S.C. 2254, IT SHALL ORDER
ONE TO BE HELD PROMPTLY.  28 U.S.C. 2243. 

FLEXIBLE PROVISION IS MADE FOR TAKING EVIDENCE BY ORAL TESTIMONY, BY
DEPOSITION, OR UPON AFFIDAVIT AND WRITTEN INTERROGATORY.  28 U.S.C.
2246.  CF. SECS. 2245, 2254(E).  THE COURT SHALL "SUMMARILY HEAR AND
DETERMINE THE FACTS, AND DISPOSE OF THE MATTER AS LAW AND JUSTICE
REQUIRE."  28 U.S.C. 2243.  BUT WITH RESPECT TO METHODS FOR SECURING
FACTS WERE NECESSARY TO ACCOMPLISH THE OBJECTIVE OF THE PROCEEDINGS
CONGRESS HAS BEEN LARGELY SILENT.  CLEARLY, IN THESE CIRCUMSTANCES, THE
HABEAS CORPUS JURISDICTION AND THE DUTY TO EXERCISE IT BEING PRESENT,
THE COURTS MAY FASHION APPROPRIATE MODES OF PROCEDURE, BY ANALOGY TO
EXISTING RULES OR OTHERWISE IN CONFORMITY WITH JUDICIAL USAGE.  WHERE
THEIR DUTIES REQUIRE IT, THIS IS THE INESCAPABLE OBLIGATION OF THE
COURTS.  THEIR AUTHORITY IS EXPRESSLY CONFIRMED IN THE ALL WRITS ACT,
28 U.S.C. 1651.  THIS STATUTE HAS SERVED SINCE ITS INCLUSION, IN
SUBSTANCE, IN THE ORIGINAL JUDICIARY ACT AS A "LEGISLATIVELY APPROVED
SOURCE OF PROCEDURAL INSTRUMENTS DESIGNED TO ACHIEVE 'THE RATIONAL ENDS
OF LAW.'"  PRICE V. JOHNSTON, 334 U.S. 266, 282 (1948), QUOTING ADAMS
V. UNITED STATES EX REL. MCCANN, 317 U.S. 269, 273 (1942).  IT HAS BEEN
RECOGNIZED THAT THE COURTS MAY RELY UPON THIS STATUTE IN ISSUING ORDERS
APPROPRIATE TO ASSIST THEM IN CONDUCTING FACTUAL INQUIRIES.  AMERICAN
LITHOGRAPHIC CO. V. WERCKMEISTER, 221 U.S. 603, 609 (1911)(SUBPOENAS
DUCES TECUM); BETHLEHEM SHIPBUILDING CORP. V. NLRB, 120 F.2D 126, 127
(C.A. 1ST CIR. 1941) (ORDER THAT CERTAIN DOCUMENTS BE PRODUCED FOR THE
PURPOSE OF PRETRIAL DISCOVERY).  IN PRICE V. JOHNSTON, SUPRA, THIS
COURT HELD EXPLICITLY THAT THE PURPOSE AND FUNCTION OF THE ALL WRITS
ACT TO SUPPLY THE COURTS WITH THE INSTRUMENTS NEEDED TO PERFORM THEIR
DUTY, AS PRESCRIBED BY THE CONGRESS AND THE CONSTITUTION, PROVIDED ONLY
THAT SUCH INSTRUMENTS ARE "AGREEABLE" TO THE USAGES AND PRINCIPLES OF
LAW, EXTEND TO HABEAS CORPUS PROCEEDINGS. 

AT ANY TIME IN THE PROCEEDINGS, WHEN THE COURT CONSIDERS THAT IT IS
NECESSARY TO DO SO IN ORDER THAT A FAIR AND MEANINGFUL EVIDENTIARY
HEARING MAY BE HELD SO THAT THE COURT MAY PROPERLY "DISPOSE OF THE
MATTER AS LAW AND JUSTICE REQUIRE," EITHER ON ITS OWN MOTION OR UPON
CAUSE SHOWN BY THE PETITIONER, IT MAY ISSUE SUCH WRITS AND TAKE OR
AUTHORIZE SUCH PROCEEDINGS WITH RESPECT TO DEVELOPMENT, BEFORE OR IN
CONJUNCTION WITH THE HEARING OF THE FACTS RELEVANT TO THE CLAIMS
ADVANCED BY THE PARTIES, AS MAY BE "NECESSARY OR APPROPRIATE IN AID OF
(ITS JURISDICTION) . . . AND AGREEABLE TO THE USAGES AND PRINCIPLES OF
LAW."  28 U.S.C. 1651. 

WE DO NOT ASSUME THAT COURTS IN THE EXERCISE OF THEIR DISCRETION
WILL PURSUE OR AUTHORIZE PURSUIT OF ALL ALLEGATIONS PRESENTED TO THEM. 
WE ARE AWARE THAT CONFINEMENT SOMETIMES INDUCES FANTASY WHICH HAS ITS
BASIS IN THE PARANOIA OF PRISON RATHER THAN IN FACT.  BUT WHERE
SPECIFIC ALLEGATIONS BEFORE THE COURT SHOW REASON TO BELIEVE THAT THE
PETITIONER MAY, IF THE FACTS ARE FULLY DEVELOPED, BE ABLE TO
DEMONSTRATE THAT HE IS CONFIDE ILLEGALLY AND IS THEREFORE ENTITLED TO
RELIEF, IT IS THE DUTY OF THE COURT TO PROVIDE THE NECESSARY FACILITIES
AND PROCEDURES FOR AN ADEQUATE INQUIRY.  OBVIOUSLY, IN EXERCISING THIS
POWER, THE COURT MAY UTILIZE FAMILIAR PROCEDURES, AS APPROPRIATE,
WHETHER THESE ARE FOUND IN THE CIVIL OR CRIMINAL RULES OR ELSEWHERE IN
THE "USAGES AND PRINCIPLES OF LAW."  /7/

  ACCORDINGLY, WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS FOR
THE NINTH CIRCUIT AND REMAND THE CASE FOR FURTHER PROCEEDINGS IN
ACCORDANCE WITH THIS OPINION. 

              REVERSED AND REMANDED 

/1/  SOME COURTS HAVE JOINED THE NINTH CIRCUIT IN HOLDING THE
DISCOVERY PROVISIONS OF THE FEDERAL RULES WHOLLY INAPPLICABLE TO HABEAS
CORPUS PROCEEDINGS.  E.G., SULLIVAN V. UNITED STATES, 198 F.SUPP.  624,
625-627 (D.C.S.D.N.Y. 1961).  ON OTHER OCCASIONS IT HAS BEEN HELD THAT
THE RULES APPLY ONLY BY "ANALOGY."  WILSON V. WEIGEL, 387 F.2D 632,
634, N. 3 (C.A. 9TH CIR. 1967); CF. UNITED STATES EX REL. JELIC V.
DISTRICT DIRECTOR OF IMMIGRATION, 106 F.2D 14, 20 (C.A. 2D CIR. 1939)
(OPINION BY JUDGE CLARK, WHO SERVED AS REPORTER OF THE ADVISORY
COMMITTEE ON THE FEDERAL RULES OF CIVIL PROCEDURE).  SEVERAL COURTS
HAVE HELD THE RULES APPLICABLE BECAUSE HABEAS IS CHARACTERIZED
GENERALLY AS A "CIVIL" PROCEEDING.  E.G., UNITED STATES EX REL. SEALS
V. WIMAN, 304 F.2D 53, 64 (C.A. 5TH CIR. 1962); CF. SCHIEBELHUT V.
UNITED STATES, 318 F.2D 785, 786 (C.A. 6TH CIR. 1963) (28 U.S.C. 2255
ACTION).  SOME COURTS HAVE SUSTAINED THE USE OF PARTICULAR DISCOVERY
RULES UNDER THE FEDERAL RULES OF CIVIL PROCEDURE AS NECESSARY TO
EFFECTUATE STATUTORY POLICY WITH RESPECT TO HABEAS CORPUS.  E.G.,
KNOWLES V. GLADDEN, 254 F.SUPP.  643, 644-645 (D.C. ORE 1965), AFF'D,
378 F.2D 761 (C.A. 9TH CIR. 1967).  OTHERS HAVE APPARENTLY ASSUMED THAT
THE RULES APPLIES TO HABEAS WITHOUT DISCUSSION OF THE QUESTION.  E.G.
FORTNER V. BALKCOM, 380 F.2D 816, 818 (C.A. 5TH CIR. 1967) 

/2/  3 W.BLACKSTONE, COMMENTARIES 131 (LEWIS ED. 1902).  SEE
GENERALLY FAY V. NOIA, 372 U.S. 391, 399-415 (1963).  CF. FRANK V.
MANGUM, 237 U.S. 309, 346 (HOLMES J., JOINED BY HUGHES J., DISSENTING)
(1915), "(HABEAS CORPUS CUTS THROUGH ALL FORMS AND GOES TO THE VERY
TISSUE OF THE STRUCTURE.  IT COMES IN FROM THE OUTSIDE . . . AND
ALTHOUGH EVERY FORM MAY HAVE BEEN PRESERVED OPENS THE INJURY WHETHER
THEY HAVE BEEN MORE THAN AN EMPTY SHELL." 

/3/  RULE 81(A)(2) WAS AMENDED, EFFECTIVE JULY 1, 1968, TO READ,
"THESE RULES ARE APPLICABLE TO PROCEEDINGS FOR . . . HABEAS CORPUS . .
. TO THE EXTENT THAT THE PRACTICE IN SUCH PROCEEDINGS IS NOT SET FORTH
IN STATUTES OF THE UNITED STATES AND HAS HERETOFORE CONFORMED TO THE
PRACTICE IN CIVIL ACTIONS."  THE AMENDMENT MERELY ELIMINATED REFERENCES
TO APPELLATE PROCEDURE MADE INAPPROPRIATE BY THE ADOPTION OF THE
FEDERAL RULES OF APPELLATE PROCEDURE AND DOES NOT AFFECT THE ISSUE
BEFORE US.  SEE REPORT OF THE COMMITTEE ON RULES OF PRACTICE AND
PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, 43 F.R.D.
61, 164 (EXPLANATORY NOTE TO THE PROPOSED REVISION OF RULE 81(A)(2)). 

/4/  THE DEGREE TO WHICH THIS CHARACTERIZATION EXCESSIVELY
SIMPLIFIES A COMPLEX HISTORY IS DISCUSSED IN COHEN, SOME CONSIDERATIONS
ON THE ORIGINS OF HABEAS CORPUS, 16 CAN.B.REV.  92 (1938), AND COHEN,
HABEAS CORPUS CUM CAUSA-- THE EMERGENCE OF THE MODERN WRIT, 18
CAN.B.REV.  10, 172 (1940).  CF. SULLIVAN V. UNITED STATES, 198
F.SUPP.  624 (D.C.S.D.N.Y. 1961). 

/5/  THE FEDERAL COURTS HAVE APPLIED SOME NONCONTROVERSIAL RULES IN
HABEAS CORPUS PROCEEDINGS.  E.G., RULE 6(B)(2), EXTENSION OF TIME FOR
EXCUSABLE NEGLECT, BOWEN V. BOLES, 258 F.SUPP.  111 (D.C.N.D.W.VA.
1966); RULE 15(B), DETERMINATION OF ISSUE NOT RAISED BY PLEADINGS,
HAMILTON V. HUNTER, 65 F.SUPP.  319 (D.C.KAN.  1946).  SEE ALSO 1 W.
BARRON & A. HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE SEC. 131 (C.
WRIGHT ED. 1960); NOTE, CIVIL DISCOVERY IN HABEAS CORPUS, 67
COL.L.REV.  1296, 1299 (1967).  THE APPLICABILITY TO HABEAS CORPUS OF
THE RULES CONCERNING JOINDER AND CLASS ACTIONS HAS ENGENDERED
CONSIDERABLE DEBATE.  SEE MITCHELL V. SCHOONFIELD, 285 F.SUPP.  728
(D.C.MD. 1968); HILL V. NELSON, 272 F.SUPP.  790 (D.C.N.D.CALIF. 
1967); ADDERLY V. WAINWRIGHT, 272 F.SUPP.  530 (D.C.M.D.FLA.  1967). 
CF. NOTE, MULTIPARTY FEDERAL HABEAS CORPUS, 81 HARV L.REV.  1482
(1968).  THE ONLY ISSUE BEFORE THE COURT IN THIS CASE IS THE
APPLICABILITY TO HABEAS CORPUS PROCEEDINGS OF THOSE RULES WHICH DEAL
WITH DISCOVERY.  WE INTIMATE NO VIEW ON WHETHER THE FEDERAL RULES MAY
BE APPLICABLE WITH RESPECT TO OTHER ASPECTS OF A HABEAS CORPUS
PROCEEDING. 

/6/  IN OUR CONSIDERATION OF THIS CASE, WE HAVE BEEN ASSISTED
GREATLY BY THE BRIEFS OF THE AMICI CURIAE-- THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND AND THE NATIONAL OFFICE FOR THE RIGHTS OF THE INDIGENT
IN SUPPORT OF PETITIONER, AND THE UNITED STATES AND THE STATE OF NEW
YORK IN SUPPORT OF RESPONDENT. 

/7/  MR. JUSTICE HARLAN, DISSENTING, AGREES THAT DISTRICT COURTS
HAVE POWER TO REQUIRE DISCOVERY WHEN ESSENTIAL TO RENDER A HABEAS
CORPUS PROCEEDING EFFECTIVE.  HE DISSENTS BECAUSE HE WOULD SUBSTITUTE
THE JUDGMENT OF THIS REMOTE COURT FOR THAT OF THE DISTRICT COURT AS TO
THE NEED FOR AUTHORIZING DISCOVERY IN THIS CASE.  MR. JUSTICE HARLAN
THEN EXPRESSES HIS VIEWS AS TO THE DESIRABILITY OF FORMULATING
DISCOVERY RULES UNDER 28 U.S.C. 1072, APPLICABLE TO FEDERAL HABEAS AND
SEC. 2255 PROCEEDINGS.  IN OUR VIEW, THE DESIRABILITY OF LAUNCHING RULE
MAKING PROCEEDINGS DOES NOT AND COULD NOT AFFECT THE DECISION IN THE
PRESENT CASE. 

IN VIEW OF HIS REMARKS, HOWEVER, WE HAVE CONCLUDED THAT WE SHOULD
EXPRESS AGREEMENT WITH OUR BROTHER HARLAN AS TO THE DESIRABILITY OF
RULE MAKING IN THIS FIELD.  WE REPEAT THAT IT DOES NOT FOLLOW FROM THIS
THAT DISTRICT JUDGES ARE WITHOUT POWER TO ENTER NECESSARY ORDERS IN THE
ABSENCE OF RULES. 

IN FACT, IT IS OUR VIEW THAT THE RULE-MAKING MACHINERY SHOULD BE
INVOKED TO FORMULATE RULES OF PRACTICE WITH RESPECT TO FEDERAL HABEAS
CORPUS AND SEC. 2255 PROCEEDINGS, ON A COMPREHENSIVE BASIS AND NOT
MERELY ONE CONFINED TO DISCOVERY.  THE PROBLEMS PRESENTED BY THESE
PROCEEDINGS ARE MATERIALLY DIFFERENT FROM THOSE DEALT WITH IN THE
FEDERAL RULES OF CIVIL PROCEDURE AND THE FEDERAL RULES OF CRIMINAL
PROCEDURE, AND RELIANCE UPON USAGE AND THE OPAQUE LANGUAGE OF CIVIL
RULE 81(A)(2) IS TRANSPARENTLY INADEQUATE.  IN OUR VIEW THE RESULTS OF
A METICULOUS FORMULATION AND ADOPTION OF SPECIAL RULES FOR FEDERAL
HABEAS CORPUS AND SEC. 2255 PROCEEDINGS WOULD PROMISE MUCH BENEFIT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

I AGREE THAT NEITHER RULE 33 OF THE FEDERAL RULES OF CIVIL PROCEDURE
NOR ANY STATUTE AUTHORIZES THE INTERROGATORIES SOUGHT IN THIS CASE.  I
FURTHER AGREE THAT DISTRICT COURTS DO HAVE POWER TO REQUIRE DISCOVERY
WHEN ESSENTIAL TO RENDER A HABEAS CORPUS PROCEEDING EFFECTIVE.  BUT I
WOULD MAKE IT EXPLICIT THAT SUCH POWER IS NARROW AND SHOULD BE
EXERCISED SPARINGLY, AND WOULD NOT SET THE DISTRICT COURTS "AT LARGE,"
AS I FEAR TODAY'S OPINION MAY BE TAKEN TO DO.             I. 

THIS CASE FURNISHED AN APT ILLUSTRATION OF THE DIFFERENCE BETWEEN MY
VIEWPOINT AND WHAT SEEMS TO BE THAT OF THE MAJORITY.  AS STATED MORE
FULLY IN THE COURT'S OPINION, ANTE, AT 288-289, WALKER CLAIMED THAT
MARIHUANA ADMITTED AT HIS TRIAL WAS SEIZED INCIDENT TO AN ARREST WHICH
WAS BASED UPON INFORMATION SUPPLIED BY AN UNRELIABLE INFORMANT.  AFTER
THE DISTRICT COURT HAD ORDERED AN EVIDENTIARY HEARING, WALKER DIRECTED
TO THE RESPONDENT WARDEN A SERIES OF INTERROGATORIES DESIGNED TO
ESTABLISH THE UNRELIABILITY OF THE INFORMANT.  THE INTERROGATORIES
ASKED WHETHER THE OFFICER WHO ARRESTED WALKER HAD MADE PREVIOUS ARRESTS
OR SEARCHES ON THE BASIS OF INFORMATION GIVEN BY THE SAME INFORMANT; IF
SO, WHETHER SUCH ARRESTS OR SEARCHES RESULTED IN CONVICTIONS; AND
WHETHER THE INFORMANT HAD EVER SUPPLIED INFORMATION WHICH THE OFFICER
CONSIDERED UNRELIABLE. 

IT SEEMS APPARENT THAT THIS DISCOVERY WAS NOT ESSENTIAL TO AN
ADEQUATE HABEAS PROCEEDING.  ALL OF THE INFORMATION SOUGHT WAS KNOWN TO
THE ARRESTING OFFICER.  WALKER KNEW THE OFFICER'S IDENTIFY; IN FACT,
THE OFFICER HAD TESTIFIED AT THE PRELIMINARY HEARING AND AT TRIAL ON
THE VERY ISSUE OF THE INFORMANT'S RELIABILITY.  HENCE, THERE IS NO
REASON TO BELIEVE THAT ALL OF THE INFORMATION COULD NOT HAVE BEEN
OBTAINED BY CALLING THE OFFICER AS A WITNESS AT THE HABEAS HEARING. 
ALTHOUGH I REALIZE THAT THE PARTIES HAVE NOT DIRECTED THEIR ARGUMENTS
TO THIS PRECISE QUESTION, I AM SATISFIED THAT ON THE FACE OF THINGS
WALKER CANNOT POSSIBLY SHOW THAT THIS DISCOVERY IS ESSENTIAL TO A FAIR
PROCEEDING.  ACCORDINGLY, I WOULD AFFIRM OUTRIGHT THE JUDGMENT OF THE
COURT OF APPEALS.  /1/

        II. 

THE MORE TROUBLESOME ASPECT OF THE COURT'S OPINION IS ITS LONG-RUN
IMPLICATIONS.  FOR IT CAN BE TAKEN AS SUGGESTING THAT THE BEST SOLUTION
TO THE PROBLEM OF DISCOVERY IN HABEAS CORPUS PROCEEDINGS IS TO PERMIT
EACH DISTRICT COURT TO DEVISE "APPROPRIATE MODES OF PROCEDURE" ON A
CASE-BY-CASE BASIS.  AS REGARDS THE IMMEDIATE FUTURE, A CASE-BY-CASE
APPROACH MAY BE UNAVOIDABLE, SINCE THERE IS AT PRESENT NO BODY OF
APPLICABLE DISCOVERY RULES AND THE DISTRICT COURTS MUST HAVE POWER TO
ORDER DISCOVERY WHICH IS ESSENTIAL TO EFFECTIVE DISPOSITION OF HABEAS
APPLICATIONS.  BUT I CONSIDER THAT FROM A BROADER STANDPOINT THE
PROBLEM OF HABEAS DISCOVERY SHOULD BE DEALT WITH NOT CASE BY CASE BUT
THROUGH EXERCISE OF OUR RULE-MAKING POWER.  SEE 28 U.S.C. 2972. 

THERE ARE SEVERAL REASONS FOR BELIEVING THAT A CASE-BY-CASE APPROACH
WILL BE UNSATISFACTORY IN THE LONG RANGE.  IT SEEMS TO ME THAT IN
FAIRNESS BOTH TO HABEAS PETITIONERS AND TO THEIR ADVERSARIES, THE
DISCOVERY PROCEDURES WHICH ARE AVAILABLE IN SUCH ACTIONS SHOULD BE
UNIFORM THROUGHOUT THE FEDERAL SYSTEM AND NOT DEPENDENT UPON THE
VARYING "DISCOVERY ATTITUDES" OF PARTICULAR DISTRICT JUDGES.  IF
DISCOVERY PROCEDURES ARE DEVELOPED CASE BY CASE, THERE WILL AT THE
LEAST BE A VERY LONG PERIOD DURING WHICH PROCEDURES WILL DIFFER FROM
DISTRICT TO DISTRICT.  EVEN ASSUMING THAT A COHERENT BODY OF RULES
FINALLY WILL EMERGE BECAUSE OF THE UNIFYING INFLUENCE OF APPELLATE
DECISIONS, IT IS UNLIKELY THAT THE RULES THUS GENERATED WILL BE THE
BEST THAT COULD HAVE BEEN DEVISED.  APPELLATE COURTS, INCLUDING THIS
ONE, ARE IMPERFECTLY INFORMED BOTH ABOUT THE EXTENT OF THE NEED FOR
ADDITIONAL DISCOVERY IN HABEAS CORPUS AND ABOUT THE PROCEDURES BEST
SUITED TO MEET THOSE NEEDS AND TO ACHIEVE PROMPT DISPATCH OF HABEAS
PROCEEDINGS.  THEY ARE, THEREFORE, POORLY SITUATED TO LAY DOWN
GUIDELINES FOR THE DISTRICT COURTS.  MOREOVER, DISCOVERY RULES
FASHIONED IN THE COURT OF DAY-TO-DAY ADJUDICATION ARE LIKELY TO SUFFER
FROM THE LIMITATIONS WHICH ACCOMPANY THAT PROCESS. 

SUCH CONSIDERATIONS LEAD ME TO THINK THAT, IN THE LONGER VIEW, THE
FORMULATION OF DISCOVERY RULES CAN BEST BE ACCOMPLISHED THROUGH USE OF
THE POWER WHICH CONGRESS HAS CONFERRED UPON US TO ESTABLISH GENERAL
RULES GOVERNING CIVIL PROCEDURE IN THE FEDERAL DISTRICT COURTS.  BY
USING THIS METHOD OF RULE MAKING, THE ADVICE OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES AND ITS APPROPRIATE ADVISORY COMMITTEES COULD BE
OBTAINED.  /2/  THESE BODIES ARE WELL EQUIPPED TO ASSESS THE DIMENSIONS
OF THE DISCOVERY PROBLEM AND DEVISE APT SOLUTIONS.  THEIR DELIBERATIONS
WOULD BE FREE FORM THE TIME PRESSURES AND PIECEMEAL CHARACTER OF CASE
BY-CASE ADJUDICATION.  AND THE RESULTING RULES WOULD BE UNIFORM
THROUGHOUT THE FEDERAL SYSTEM. 

MY CONVICTION THAT THIS WOULD BE THE BEST COURSE IS STRENGTHENED BY
RECOLLECTION OF OUR DECISION IN MINER V. ATLASS, 363 U.S. 641 (1960),
AND THE EVENTS WHICH FOLLOWED.  IN MINER WE HELD THAT A DISTRICT COURT
SITTING IN ADMIRALTY HAD NO POWER TO ORDER THE TAKING OF AN ORAL
DISCOVERY DEPOSITION.  RESPONDING TO A SUGGESTION IN OUR OPINION, SEE
363 U.S.,AT 651, AND TO EARLIER STIRRINGS AT THE BAR, THE JUDICIAL
CONFERENCE AND THE ADVISORY COMMITTEE ON GENERAL ADMIRALTY RULES WENT
INTO EFFECT A LITTLE MORE THAN A YEAR AFTER OUR DECISION.  /4/  THERE
IS NO REASON TO THINK THAT THE JUDICIAL CONFERENCE AND THE ADVISORY
COMMITTEES WOULD NOT BE EQUALLY COOPERATIVE IN THIS INSTANCE. 

FOR THE REASONS STATED IN PART I OF THIS OPINION, I WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS IN THIS CASE. 

/1/  MY BROTHER STEWART BASES HIS DISSENT IN THIS CASE UPON MY OWN
DISSENTING OPINION IN KAUFMAN V. UNITED STATES, ANTE, P. 242, IN WHICH
I HAVE TAKEN THE POSITION THAT IN ACTIONS BROUGHT BY FEDERAL PRISONERS
UNDER 28 U.S.C. 2255 FOURTH AMENDMENT CLAIMS SHOULD BE ENTERTAINED ONLY
UPON A SHOWING OF "SPECIAL CIRCUMSTANCES."  I PREFER TO REST MY
DISAGREEMENT WITH THE RESULT IN THIS CASE UPON OTHER GROUNDS, FOR TWO
REASONS.  FIRST, THIS CASE IS NOT ON ALL FOURS WITH KAUFMAN, SINCE THIS
WAS A FEDERAL HABEAS ACTION BY A STATE PRISONER RATHER THAN AN ACTION
BY A FEDERAL PRISONER UNDER SEC. 2255.  THE KAUFMAN QUESTION HAS NOT
BEEN BRIEFED OR ARGUED IN THIS CASE, AND THERE MAY CONCEIVABLY BE
SIGNIFICANT DISTINCTIONS BETWEEN THE TWO TYPES OF PROCEEDINGS.  SEE,
E.G., AMSTERDAM, SEARCH, SEIZURE, AND SECTION 2255:  A COMMENT, 112
U.PA.L.REV.  378 (1964).  SECOND, ALTHOUGH THIS CASE HAPPENS, LIKE
KAUFMAN, TO INVOLVE A SEARCH-AND-SEIZURE ISSUE, THE COURT'S REASONING
HERE PLAINLY APPLIES TO ALL CLAIMS COGNIZABLE ON FEDERAL HABEAS
CORPUS.  HENCE, IT SEEMS APPROPRIATE TO REST MY DISSENT UPON BROADER
GROUNDS, WHICH ALSO APPEAL TO MY BROTHER WHITE. 

/2/  FOR A BRIEF ACCOUNT OF THE ROLE PLAYED BY THESE BODIES IN THE
MAKING OF CIVIL RULES, SEE KAPLAN, CONTINUING WORK OF THE CIVIL
COMMITTEE:  1966 AMENDMENTS OF THE FEDERAL RULES OF CIVIL PROCEDURE
(I), 81 HARV.L.REV.  356, 357-358 (1967). 

/3/  SEE 28 U.S.C. 2072, WHICH ALSO SPECIFIES THAT THE PROPOSED
RULES SHALL NOT TAKE EFFECT FOR 90 DAYS AFTER THEY HAVE BEEN REPORTED
TO CONGRESS. 

/4/  SEE ADMIRALTY RULES 30A-30G, 32, 32B-32D, WHICH WERE EITHER
ADDED OR AMENDED EFFECTIVE JULY 19, 1961. 

MR. JUSTICE STEWART, DISSENTING. 

I CONCUR WITH MOST OF WHAT IS SAID IN THE COURT'S OPINION, BUT
CANNOT CONCUR IN ITS JUDGMENT. 

I WHOLLY AGREE THAT RULE 33 IS INAPPLICABLE TO HABEAS CORPUS
PROCEEDINGS.  CONTRARY TO MY BROTHER HARLAN, I FURTHER AGREE THAT
FEDERAL JUDGES CARRYING OUT THEIR DUTY TO DISPOSE OF HABEAS CORPUS
APPLICATIONS "AS LAW AND JUSTICE REQUIRE," 28 US.C. 2243, SHOULD NOT BE
INHIBITED BY INFLEXIBILITY FORMALIZED PROCEDURAL RULES.  IN GETTING AT
THE FACTS IN SUCH CASES, THE DISTRICT COURTS SHOULD BE GIVEN WIDE
LEEWAY FOR "DISCRETION TO EXERCISE THEIR COMMON SENSE."  MACHIBRODA V.
UNITED STATES, 368 U.S. 487, 495.  /1/ 

HOWEVER, FOR THE REASONS STATED IN MR. JUSTICE HARLAN'S DISSENTING
OPINION TODAY IN KAUFMAN V. UNITED STATES, ANTE, P. 242, WHICH I HAVE
JOINED, I WOULD AFFIRM THE JUDGMENT IN THE PRESENT CASE. 

/1/  THE MACHIBRODA CASE AROSE UNDER 28 U.S.C. 2255, THE STATUTORY
COUNTERPART OF HABEAS CORPUS.  IN THE CIRCUMSTANCES THERE PRESENTED, WE
POINTED OUT THAT "MANY OF THE MATERIAL ALLEGATIONS CAN EITHER BE
CORROBORATED OR DISPROVED BY THE VISITORS' RECORDS OF THE COUNTY JAIL
WHERE THE PETITIONER WAS CONFINED, THE MAIL RECORDS OF THE PENITENTIARY
TO WHICH HE WAS SENT, AND OTHER SUCH SOURCES."  368 U.S.,AT 495. 

J. STANLEY POTTINGER, BY APPOINTMENT OF THE COURT, 393 U.S. 814,
ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

DERALD E. GRANBERG, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEFS WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND CHARLES R. B. KIRK, DEPUTY ATTORNEY GENERAL,
JOINED IN AND ADOPTED BY THE ATTORNEYS GENERAL AND OTHER OFFICIALS OF
THEIR RESPECTIVE JURISDICTIONS AS FOLLOWS:  MACDONALD GALLION OF
ALABAMA, GARY K. NELSON OF ARIZONA, JOE PURCELL OF ARKANSAS, DUKE W.
DUNBAR OF COLORADO, DAVID P. BUCKSON OF DELAWARE, EARL FAIRCLOTH OF
FLORIDA, ARTHUR K. BOLTON OF GEORGIA, BERT T. KOBAYASHI OF HAWAII,
WILLIAM G. CLARK OF ILLINOIS, JOHN J. DILLON OF INDIANA, RICHARD C.
TURNER OF IOWA, JOHN B. BRECKINRIDGE OF KENTUCKY, JACK P. F. GREMILLION
OF LOUISIANA, JAMES S. ERWIN OF MAINE, FRANCIS B. BURCH OF MARYLAND,
ELLIOTT L. RICHARDSON OF MASSACHUSETTS, DOUGLAS M. HEAD OF MINNESOTA,
JOE T. PATTERSON OF MISSISSIPPI, CLARENCE A. H. MEYER OF NEBRASKA,
HARVEY DICKERSON OF NEVADA, ARTHUR J. SILLS OF NEW JERSEY, BOSTON E.
WITT OF NEW MEXICO, LOUIS J. LEFKOWITZ OF NEW YORK, T. WADE BRUTON OF
NORTH CAROLINA, HELGI JOHANNESON OF NORTH DAKOTA, WILLIAM B. SAXBE OF
OHIO, G. T. BLANKENSHIP OF OKLAHOMA, WILLIAM C. SENNETT OF
PENNSYLVANIA, HERBERT F. DESIMONE OF RHODE ISLAND, DANIEL R. MCLEOD OF
SOUTH CAROLINA, GEORGE F. MCCANLESS OF TENNESSEE, JAMES L. OAKES OF
VERMONT, ROBERT Y. BUTTON AND RENO S. HARP III OF VIRGINIA, JOHN J.
O'CONNELL OF WASHINGTON, BRONSON C. LAFOLLETTE OF WISCONSIN, AND PAUL
J. ABBATE OF GUAM; AND BY THE NATIONAL DISTRICT ATTORNEYS'
ASSOCIATION. 

JEROME M. FEIT ARGUED THE CAUSE FOR THE UNITED STATES AS AMICUS
CURIAE URGING AFFIRMANCE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, JOHN S. MARTIN, JR., AND
PAUL C. SUMMITT. 

JACK GREENBERG, JAMES M. NABRIT III, MICHAEL MELTSNER, AND ANTHONY
G. AMSTERDAM FILED A BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL
FUND, INC., ET AL. AS AMICI CURIAE URGING REVERSAL. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND AMY JUVILER AND JOEL
H. SACHS, ASSISTANT ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF
NEW YORK AS AMICUS CURIAE URGING AFFIRMANCE. 
..END :












DUVERNAY V. UNITED STATES, 394 U.S. 309 


       DUVERNAY V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT. 

        NO. 814.  ARGUED FEBRUARY 27, 1969.-- DECIDED MARCH 24,

           1969. 


394 F.2D 979, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

BENJAMIN E. SMITH ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE ARTHUR KINOY AND MORTON STAVIS. 

JOHN S. MARTIN, JR., ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WILSON, AND PHILIP R. MONAHAN. 

ANN FAGAN GINGER FILED A BRIEF FOR THE NATIONAL LAWYERS GUILD AS
AMICUS CURIAE URGING REVERSAL. 
..END :





















GIORDANO V. UNITED STATES, 394 U.S. 310 


       GIORDANO V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

        NO. 28.  DECIDED MARCH 24, 1969.  /0/ 


THE CASES ARE REMANDED TO THE DISTRICT COURTS FOR FUTHER PROCEEDINGS
IN CONFORMITY WITH ALDERMAN V. UNITED STATES, ANTE, P. 165. 

NO. 84, CERTIORARI GRANTED AS TO PETITIONER FRANZESE ONLY AND DENIED
AS TO THE OTHERS; 392 F.2D 954, VACATED IN PART AND REMANDED.  NO. 317,
CERTIORARI GRANTED AS TO PETITIONERS MIRRO AND MCDONNELL AND DENIED AS
TO THE OTHERS; 396 F.2D 283, VACATED IN PART AND REMANDED.  IN THE
FOLLOWING CASES CERTIORARI GRANTED AND THE JUDGEMENTS BELOW VACATED AND
REMANDED:  NO. 28, 395 F.2D 988; NO. 54, 390 F.2D 244; NOS. 106 AND
168, 394 F.2D 304 AND 327; NO. 124, 393 F.2D 597; NO. 129, 395 F.2D 47;
NO. 271, 397 F.2D 901; NOS. 474 AND 715, 401 F.2D 664; NO. 546, 398
F.2D 291; NO. 668, 401 F.2D 259; AND NOS. 895 AND 911, 402 F.2D 380. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, EXCEPT THAT IN
NO. 84, THE WRIT IS GRANTED AS TO PETITIONER FRANZESE ONLY AND DENIED
AS TO THE OTHER PETITIONERS, AND IN NO. 317 THE PETITION IS GRANTED AS
TO PETITIONERS MIRRO AND MCDONNELL ONLY AND DENIED AS TO THE OTHER
PETITIONERS.  /1/  THE JUDGMENTS OF THE COURTS OF APPEALS IN THESE
CASES ARE VACATED, AND THE CASES REMANDED TO THE RESPECTIVE DISTRICT
COURTS FOR FURTHER PROCEEDINGS IN CONFORMITY WITH ALDERMAN V. UNITED
STATES, IVANOV V. UNITED STATES, AND BUTENKO V. UNITED STATES, ANTE, P.
165.  IT IS NOT EVIDENT FROM THE RECORDS IN SOME OF THESE CASES WHETHER
THE SURVEILLANCES AT ISSUE WERE UNLAWFUL.  IT MAY BE THAT THE
OVERHEARINGS IN SOME INSTANCES WERE NOT ACHIEVED BY TRESPASS, SEE KATZ
V. UNITED STATES, 389 U.S. 347 (1967); DESIST V. UNITED STATES, ANTE,
P. 244, AND KAISER V. NEW YORK, ANTE, P. 280, OR FOR SOME OTHER REASONS
WERE NOT UNLAWFUL.  AS WE HELD IN ALDERMAN, IVANOV, AND BUTENKO, ANTE,
AT 170, N. 3, "THE DISTRICT COURT MUST DEVELOP THE RELEVANT FACTS AND
DECIDE IF THE GOVERNMENT'S ELECTRONIC SURVEILLANCE WAS UNLAWFUL."  OF
COURSE, A FINDING BY THE DISTRICT COURT THAT THE SURVEILLANCE WAS
LAWFUL WOULD MAKE DISCLOSURE AND FURTHER PROCEEDINGS UNNECESSARY. 
SIMILARLY, IT IT NOT CLEAR THAT EACH PETITIONER HAS STANDING TO ASSERT
THE ILLEGALITY OF THE SURVEILLANCE OR OF THE INTRODUCTION OF ITS
FRUITS.  AS IN ALDERMAN, IVANOV, AND BUTENKO, THESE ISSUES ARE TO BE
RESOLVED BY THE DISTRICT COURTS IN THE FIRST INSTANCE. 

/0/  TOGETHER WITH NO. 54, SCANDIFIA V. UNITED STATES; NO. 84,
FRANZESE ET AL. V. UNITED STATES; NO. 106, EVANS V. UNITED STATES; NO.
124 AIUPPA V. UNITED STATES; NO. 129, AMABILE V. UNITED STATES; NO.
168, BATTAGLIA V. UNITED STATES; NO. 271, CLAY, AKA ALI V. UNITED
STATES; NO. 317, DI PIETTO ET AL. V. UNITED STATES; NO. 474, NATARELLI
V. UNITED STATES; NO. 546, HOFFA ET AL. V. UNITED STATES; NO. 668,
STASSI V. UNITED STATES; NO. 715, RANDACCIO V. UNITED STATES; NO. 895,
HOFFA ET AL. V. UNITED STATES; AND NO. 911, DRANOW V. UNITED STATES,
ALSO ON PETITIONS FOR WRITS OF CERTIORARI.  NOS. 54, 84, 474, AND 715
ARE TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT; NOS.
271 AND 668 ARE TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT; NO. 546
IS TO THE COURT OF APPEALS FOR THE SIXTH CIRCUIT; NOS. 106, 129, 168,
317, 895, AND 911 ARE TO THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT;
AND NO. 124 IS TO THE COURT OF APPEALS FOR THE TENTH CIRCUIT. 

/1/  WE READ THE PAPERS FILED BY THE UNITED STATES IN THESE TWO
CASES AS STATING THAT THE SURVEILLANCES NEITHER INVADED THE PREMISES OF
THE OTHER PETITIONERS NOR OVERHEARD THEIR CONVERSATIONS. 

MR. JUSTICE BLACK DISSENTS, EXCEPT IN NOS. 895 AND 911, IN THE
CONSIDERATION AND DISPOSITION OF WHICH HE TOOK NO PART. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF NOS. 546, 895, AND 911. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR
DISPOSITION OF NOS. 28, 106, 129, 168, 271, 546, 895, AND 911. 

MR. JUSTICE STEWART, CONCURRING. 

A FEW WORDS IN AMPLIFICATION OF THIS PER CURIAM OPINION MAY HELP TO
AVOID MISUNDERSTANDING ON THE PART OF THE LITIGANTS, AND OF THE
DISTRICT COURTS TO WHICH THESE CASES ARE REMANDED. 

AS WE MADE EXPLICIT IN ALDERMAN, BUTENKO, AND IVANOV, THE
REQUIREMENT THAT CERTAIN PRODUCTS OF GOVERNMENTAL ELECTRONIC
SURVEILLANCE BE TURNED OVER TO DEFENSE COUNSEL WAS EXPRESSLY LIMITED TO
SITUATIONS WHERE THE SURVEILLANCE HAD VIOLATED THE FOURTH AMENDMENT. 
WE DID NOT DECIDE IN THOSE CASES, AND WE DO NOT DECIDE IN THESE, THAT
ANY OF THE SURVEILLANCES DID VIOLATE THE FOURTH AMENDMENT.  /1/
INSTEAD, WE HAVE LEFT THAT THRESHOLD QUESTION FOR THE DISTRICT COURTS
TO DECIDE IN ALL THESE CASES. 

MOREOVER, WE DID NOT IN ALDERMAN, BUTENKO, OR IVANOV, AND WE DO NOT
TODAY, SPECIFY THE PROCEDURE THAT THE DISTRICT COURTS ARE TO FOLLOW IN
MAKING THIS PRELIMINARY DETERMINATION.  WE HAVE NOWHERE INDICATED THAT
THIS DETERMINATION CANNOT APPROPRIATELY BE MADE IN EX PARTE, IN CAMERA
PROCEEDINGS.  "NOTHING IN ALDERMAN V. UNITED STATES, IVANOV V. UNITED
STATES, OR BUTENKO V. UNITED STATES, ANTE, P. 165, REQUIRES AN
ADVERSARY PROCEEDING AND FULL DISCLOSURE FOR RESOLUTION OF EVERY ISSUE
RAISED BY AN ELECTRONIC SURVEILLANCE."  TAGLIANETTI V. UNITED STATES,
POST, P. 316. 

FINALLY, THE COURT HAS NOT IN ANY OF THESE CASES ADDRESSED ITSELF TO
THE STANDARDS GOVERNING THE CONSTITUTIONALITY OF ELECTRONIC
SURVEILLANCE RELATING TO THE GATHERING OF FOREIGN INTELLIGENCE
INFORMATION-- NECESSARY FOR THE CONDUCT OF INTERNATIONAL AFFAIRS, AND
FOR THE PROTECTION OF NATIONAL DEFENSE SECRETS AND INSTALLATIONS FROM
FOREIGN ESPIONAGE AND SABOTAGE.  MR. JUSTICE WHITE HAS ELSEWHERE MADE
CLEAR HIS VIEW THAT SUCH SURVEILLANCE DOES NOT VIOLATE THE FOURTH
AMENDMENT, "IF THE PRESIDENT OF THE UNITED STATES OR HIS CHIEF LEGAL
OFFICER, THE ATTORNEY GENERAL, HAS CONSIDERED THE REQUIREMENTS OF
NATIONAL SECURITY AND AUTHORIZED ELECTRONIC SURVEILLANCE AS
REASONABLE."  /2/  WHILE TWO MEMBERS OF THE COURT HAVE INDICATED
DISAGREEMENT WITH THAT VIEW, /3/ THE ISSUE REMAINS OPEN.  /4/ 

ONE MIGHT SUPPOSE THAT ALL OF THIS SHOULD BE ENTIRELY CLEAR TO ANY
CAREFUL READER OF THE COURT'S OPINION IN ALDERMAN, BUTENKO, AND
IVANOV.  PERHAPS SO, AND PERHAPS, THEREFORE, WHAT I HAVE SAID IS QUITE
UNNECESSARY.  BUT 10 YEARS OF EXPERIENCE HERE HAVE TAUGHT ME THAT THE
MOST CAREFULLY WRITTEN OPINIONS ARE NOT ALWAYS CAREFULLY READ-- EVEN BY
THOSE MOST DIRECTLY CONCERNED. 

/1/  IN ORAL ARGUMENT OF THE BUTENKO AND IVANOV CASES, THE SOLICITOR
GENERAL, MYSTIFYINGLY, SOUGHT TO CONCEDE THAT THE SURVEILLANCES THERE
WERE IN FACT UNCONSTITUTIONAL, ALTHOUGH HE WAS REPEATEDLY INVITED TO
ARGUE THAT THEY WERE NOT.  THE FOLLOWING COLLOQUIES DURING ORAL
ARGUMENT OF THE IVANOV CASE ARE ILLUSTRATIVE: 

"Q.  ARE YOU ASKING US TO DECIDE HERE OR TO LEAVE OPEN ON REMAND THE
QUESTION AS TO WHETHER THIS VIOLATES, THIS BUGGING IN THIS PARTICULAR
CASE, VIOLATES THE FOURTH AMENDMENT? 

"A.  OUR POSITION WOULD BE THE SAME HAD IT OR NOT.  WE ARE NOT
ARGUING THAT IT DID NOT VIOLATE THE FOURTH AMENDMENT. 

        .          . .          . 

"Q.  IN OTHER WORDS, THE PREMISE IN WHICH YOU ARE PROCEEDING HERE IS
THAT YOU ADMIT FOR THE PURPOSES OF THIS CASE THAT THIS WAS ILLEGAL
BUGGING? 

"A.  YES, MR. JUSTICE. 

        .          .          .          . 

"Q.  AND YOU ARE GOING TO REMAIN FREE TO ARGUE TO THE DISTRICT JUDGE
THAT THERE WAS NO VIOLATION? 

"A.  NO, SIR."  IN DECIDING THOSE CASES, THE COURT DECLINED TO
ACCEPT THE SOLICITOR GENERAL'S PROFERRED CONCESSION. 

/2/  KATZ V. UNITED STATES, 389 U.S. 347, 364 (WHITE, J.,
CONCURRING). 

/3/  ID., AT 359 (DOUGLAS, J., CONCURRING). 

/4/  SEE ID., AT 358, N. 23. 

CARLTON ROESER FOR PETITIONER IN NO. 28.  IRVING ANOLIK FOR
PETITIONER IN NO. 54.  MAURICE EDELBAUM FOR PETITIONER FRANZESE,
WILLIAM L. LYNCH FOR PETITIONER CRABBE, RAYMOND A. BROWN FOR PETITIONER
MATERA, AND PETER L. F. SABBATINO FOR PETITIONER POTERE IN NO. 84. 
RAYMOND J. SMITH AND MORRIS A. HAFT FOR PETITIONER IN NO. 106.  MAURICE
J. WALSH AND JOHN POWERS CROWLEY FOR PETITIONER IN NO. 124.  CHARLES A.
BELLOWS FOR PETITIONER IN NO. 129.  EDWARD BENNETT WILLIAMS, HAROLD
UNGAR, STEVEN M. UMIN, AND MR. WALSH FOR PETITIONER IN NO. 168. 
CHARLES MORGAN, JR., HOWARD MOORE, JR., GEORGE PONTIKES, MARVIN
KARPATKIN, MELVIN L. WULF, AND ELEANOR H. NORTON FOR PETITIONER IN NO.
271.  EDWARD J. CALIHAN, JR., MR. CROWLEY, AND ROBERT S. BAILEY FOR
PETITIONERS IN NO. 317.  ANTHONY J. DEMARIE FOR PETITIONER IN NO. 474. 
MORRIS A. SHENKER, JOSEPH A. FANELLI, JACQUES M. SCHIFFER, CECIL D.
BRANSTETTER, AND DANIEL B. MAHER FOR PETITIONERS IN NO. 546.  CLYDE W.
WOODY AND MARIAN S. ROSEN FOR PETITIONER IN NO. 668.  HERALD PRICE
FAHRINGER AND FRANK G. RAICHLE FOR PETITIONER IN NO. 715.  MESSRS. 
WALSH AND SHENKER FOR PETITIONER HOFFA, GEORGE CALLAGHAN FOR PETITIONER
STRATE, RICHARD E. GORMAN FOR PETITIONER BURRIS, MR. SCHIFFER FOR
PETITIONER WEINBLATT, AND HARVEY M. SILETS FOR PETITIONER KOVENS IN NO.
895.  FRANK RAGANO FOR PETITIONER IN NO. 911. 

SOLICITOR GENERAL GRISWOLD FOR UNITED STATES IN NO. 28.  SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, BEATRICE
ROSENBERG, AND SIDNEY M. GLAZER FOR THE UNITED STATES IN NO. 54. 
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, MISS
ROSENBERG, AND ROGER A. PAULEY FOR THE UNITED STATES IN NOS. 84, 271
ADN 317.  SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
VINSON, AND MISS ROSENBERG FOR THE UNITED STATES IN NOS. 106, 129, AND
168.  SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON,
MISS ROSENBERG, AND LEONARD H. DICKSTEIN FOR THE UNITED STATES IN NO.
124.  SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON,
JEROME M. FEIT, AND MR. GLAZER FOR THE UNITED STATES IN NO. 474. 
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, THEODORE
GEORGE GILINSKY, AND MR. PAULEY FOR THE UNITED STATES IN NO. 546. 
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, MISS
ROSENBERG AND PAUL C. SUMMITT FOR THE UNITED STATES IN NO. 668. 
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON, MR.
FEIT, AND KIRBY W. PATTERSON FOR THE UNITED STATES IN NO. 715. 
SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WILSON, MISS
ROSENBERG AND MR. FEIT FOR THE UNITED STATES IN NOS. 895 AND 911. 
..END :








TAGLIANETTI V. UNITED STATES, 394 U.S. 316 


       TAGLIANETTI V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT. 

        NO. 446.  DECIDED MARCH 24, 1969. 


THE GOVERNMENT PURPORTEDLY FURNISHED PETITIONER, WHO HAS BEEN
CONVICTED OF INCOME TAX VIOLATIONS, ALL OF HIS OWN CONVERSATIONS WHICH
HAD BEEN OVERHEARD BY UNLAWFUL ELECTRONIC SURVEILLANCE, AND THE
DISTRICT COURT EXAMINED ALL THE RECORDS IN CAMERA TO ASCERTAIN IF THE
GOVERNMENT HAD CORRECTLY IDENTIFIED PETITIONER'S VOICE AND HAD TURNED
OVER ALL HIS CONVERSATIONS.  HELD:  ALDERMAN V. UNITED STATES, ANTE, P.
165, REQUIRES AN ADVERSARY PROCEEDING ONLY WHERE IN CAMERA PROCEDURES
ARE INADEQUATE TO SAFEGUARD A DEFENDANT'S FOURTH AMENDMENT RIGHTS, BUT
HERE IT CANNOT BE SAID THAT "THE TASK IS TOO COMPLEX, AND THE MARGIN OF
ERROR TOO GREAT, TO RELY WHOLLY ON THE IN CAMERA JUDGMENT OF THE TRIAL
COURT." 

CERTIORARI GRANTED; 398 F.2D 558, AFFIRMED. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED AND THE JUDGMENT OF THE COURT
OF APPEALS IS AFFIRMED.  /1/  FOLLOWING A JURY TRIAL IN THE DISTRICT
COURT, PETITIONER WAS CONVICTED ON THREE COUNTS OF WILFULLY ATTEMPTING
TO EVADE HIS INCOME TAX FOR THE YEARS 1956, 1957, AND 1958.  FOLLOWING
A REMAND TO THE DISTRICT COURT, THE COURT OF APPEALS AFFIRMED THE
CONVICTIONS.  IN THE DISTRICT COURT ON REMAND, THE GOVERNMENT PURPORTED
TO TURN OVER TO PETITIONER ALL OF HIS OWN CONVERSATIONS WHICH HAD BEEN
OVERHEARD BY MEANS OF UNLAWFUL ELECTRONIC SURVEILLANCE.  /2/
PETITIONER ARGUES THAT HE WAS ENTITLED TO EXAMINE ADDITIONAL
SURVEILLANCE RECORDS BECAUSE NEITHER THE GOVERNMENT NOR THE DISTRICT
COURT WAS ABLE TO DETERMINE WITH CERTAINTY WHICH CONVERSATIONS
PETITIONER HAD BEEN A PARTY TO.  IN FACT, THE DISTRICT COURT EXAMINED
ALL THE RECORDS IN CAMERA TO ASCERTAIN IF THE GOVERNMENT HAD CORRECTLY
IDENTIFIED PETITIONER'S VOICE AND HAD TURNED OVER TO PETITIONER EACH
CONVERSATION IN WHICH HE HAD PARTICIPATED. 

NOTHING IN ALDERMAN V. UNITED STATES, IVANOV V. UNITED STATES, OR
BUTENKO V. UNITED STATES, ANTE, P. 165, REQUIRES AN ADVERSARY
PROCEEDING AND FULL DISCLOSURE FOR RESOLUTION OF EVERY ISSUE RAISED BY
AN ELECTRONIC SURVEILLANCE.  ON THE CONTRARY, AN ADVERSARY PROCEEDING
AND DISCLOSURE WERE REQUIRED IN THOSE CASES, NOT FOR LACK OF CONFIDENCE
IN THE INTEGRITY OF GOVERNMENT COUNSEL OR THE TRIAL JUDGE, BUT ONLY
BECAUSE THE IN CAMERA PROCEDURES AT ISSUE THERE WOULD HAVE BEEN AN
INADEQUATE MEANS FO SAFEGUARD A DEFENDANT'S FOURTH AMENDMENT RIGHTS. 
HERE THE DEFENDANT WAS ENTITLED TO SEE A TRANSCRIPT OF HIS OWN
CONVERSATIONS AND NOTHING ELSE.  HE HAD NO RIGHT TO RUMMAGE IN
GOVERNMENT FILES.  THE TRIAL COURT WAS ASKED TO IDENTIFY ONLY THOSE
INSTANCES OF SURVEILLANCE WHICH PETITIONER HAD STANDING TO CHALLENGE
UNDER THE FOURTH AMENDMENT EXCLUSIONARY RULE AND TO DOUBLE-CHECK THE
ACCURACY OF THE GOVERNMENT'S VOICE IDENTIFICATIONS.  UNDER THE
CIRCUMSTANCES PRESENTED HERE, WE CANNOT HOLD THAT "THE TASK IS TOO
COMPLEX, AND THE MARGIN FOR ERROR TOO GREAT, TO RELY WHOLLY ON THE IN
CAMERA JUDGMENT OF THE TRIAL COURT."  ALDERMAN V. UNITED STATES, SUPRA,
AT 182. 

/1/  ALTHOUGH THIS PETITION FOR CERTIORARI WAS NOT FILED WITHIN THE
30 DAYS ALLOWED BY THIS COURG'S RULE 22(2), THE TIME LIMITATION IS NOT
JURISDICTIONAL, HEFLIN V. UNITED STATES, 358 U.S. 415, 418, N. 7
(1959), AND DOES NOT BAR OUR EXERCISE OF DISCRETION TO CONSIDER THIS
CASE. 

/2/  PETITIONER SOUGHT DISCLOSURE ONLY OF HIS OWN CONVERSATIONS AND
APPARENTLY LACKS STANDING AS TO ANY OTHERS.  "WE DO NOT UNDERSTAND
APPELLANT TO ARGUE THAT HE HAS A RIGHT TO INSPECT LOGS OR MEMOS OF
CONVERSATIONS IN WHICH HE WAS NOT A PARTICIPANT.  INDEED, THAT POINT HE
WISELY CONCEDED BEFORE THE DISTRICT COURT."  398 F.2D 558, 571. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR
DISPOSITION OF THIS CASE. 

RAYMOND LAFAZIA FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY GENERAL ROGOVIN
FOR THE UNITED STATES. 
..END :













MAYHUE'S SUPER LIQUOR STORES, INC. V. MEIKLEJOHN, 394 U.S. 319 


       MAYHUE'S SUPER LIQUOR STORES INC. V. MEIKLEJOHN, DIRECTOR,

           BEVERAGE DEPARTMENT OF FLORIDA, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF FLORIDA. 

NO. 904.  DECIDED MARCH 24, 1969. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 

DANIEL S. PEARSON, FOR APPELLANT. 

T. T. TURNBULL, ASSISTANT ATTORNEY GENERAL OF FLORIDA, FOR
APPELLEES. 
..END :





SHAKESPEARE V. ZERVOS, 394 U.S. 319 


       SHAKESPEARE ET AL. V. ZERVOS. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

APPELLATE DISTRICT. 

        NO. 823.  DECIDED MARCH 24, 1969. 


262 CAL.APP.2D 171, 68 CAL.RPTR.  481, APPEAL DISMISSED AND
CERTIORARI DENIED. 

PER CURIAM. 

THE MOTIONS TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT
AND FOR LEAVE TO FILE A SUPPLEMENTAL JURISDICTIONAL STATEMENT ARE
GRANTED.  THE MOTION FOR TRANSMITTAL OF EXHIBITS IS DENIED. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :







BOEING CO. V. HAMM, 394 U.S., 320 


       BOEING CO. V. HAMM, COMMISSIONER OF REVENUE OF ALABAMA. 

        APPEAL FROM THE SUPREME COURT OF ALABAMA. 

        NO. 1017.  DECIDED MARCH 24, 1969. 


283 ALA. 310, 216 SO.2D 288, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

JOHN BINGHAM FOR APPELLANT. 

MACDONALD GALLION, ATTORNEY GENERAL OF ALABAMA, AND WILLARD W.
LIVINGSTON, AND WILLIAM H. BURTON, ASSISTANT ATTORNEYS GENERAL, FOR
APPELLEE. 
..END :









WOODS V. CALIFORNIA, 394 U.S. 320 


       WOODS V. CALIFORNIA. 

        APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF

           CALIFORNIA, COUNTY OF LOS ANGELES. 

        NO. 1006.  DECIDED MARCH 24, 1969. 


APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

BURTON MARKS FOR APPELLANT. 
..END :












FEDERAL-BRYANT MACHINERY CO. V. DEPT. OF REVENUE, 394 U.S. 321 


       FEDERAL-BRYANT MACHINERY CO. V. DEPARTMENT OF REVENUE OF

           ILLINOIS. 

        APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

        NO. 1069.  DECIDED MARCH 24, 1969. 


41 ILL.2D 64, 241 N.E.2D 857, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

HARRY H. RUSKIN FOR APPELLANT. 

WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, AND FRANCIS T.
CROWE, ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :








IN RE GROSS, 394 U.S. 321 


       IN RE GROSS. 

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 1035.  DECIDED MARCH 24, 1969. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

BURTON MARKS FOR APPELLANT. 

ROGER ARNEBERGH, PHILIP E. GREY, AND MICHAEL T. SAUER FOR THE STATE
OF CALIFORNIA. 
..END :








MCINNIS V. OGILVIE, 394 U.S. 322 


       MCGINNIS ET AL. V. OGILVIE, GOVERNOR OF ILLINOIS, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS. 

    NO. 1033.  DECIDED MARCH 24, 1969. 


293 F.SUPP.  327, AFFIRMED. 

PER CURIAM. 

THE MOTIONS OF URBAN COALITION ET AL., AMERICAN FEDERATION OF LABOR
CONGRESS OF INDUSTRIAL ORGANIZATIONS ET AL., JOHN E. COONS ET AL., AND
SAN FRANCISCO NEIGHBORHOOD LEGAL ASSISTANCE FOUNDATION ET AL., FOR
LEAVE TO FILE BRIEFS AS AMICI CURIAE ARE GRANTED. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND THE CASE SET FOR ORAL ARGUMENT. 

STANLEY A. BASS FOR APPELLANTS. 

WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, AND FRANCIS T.
CROWE, ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 

ARTHUR H. DEAN, LOUIS F. OBERDORFER, FREDERICK A. BALLARD, JOHN B.
JONES, JR., AND WILLIAM B. BEEBE FOR THE URBAN COALITION ET AL. AS
AMICI CURIAE, AND JOSEPH L. RAUH, JR., JOHN SILARD, ELLIOTT C.
LICHTMAN, BENJAMIN V. COHEN, J. ALBERT WOLL, THOMAS E. HARRIS, JOHN
LIGTENBERG, STEPHEN I. SCHLOSSBERG, DERRICK A. BELL, JR., AND HAROLD W.
HOROWITZ FOR THE AMERICAN FEDERATION OF LABOR-CONGRESS OF INDUSTRIAL
ORGANIZATIONS ET AL. AS AMICI CURIAE.  BRIEFS OF AMICI CURIAE WERE ALSO
FILED BY SAN FRANCISCO NEIGHBORHOOD LEGAL ASSISTANCE FOUNDATION ET AL.
AND BY COONS ET AL.
..END :













CAMPBELL V. WASHINGTON STATE BAR ASSN., 394 U.S. 323 


       CAMPBELL V. WASHINGTON STATE BAR ASSN.

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

        NO. 1324, MISC.  DECIDED MARCH 24, 1969. 


74 WASH.2D 276, 444 P.2D 784, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :













GREGORY V. CHICAGO, 394 U.S. 111 


       GREGORY ET AL. V. CITY OF CHICAGO. 

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

        NO. 60.  ARGUED DECEMBER 10,1968.-- DECIDED MARCH 10,
1969. 


PETITIONER, PEACEFUL CIVIL RIGHTS DEMONSTRATORS, WERE ARRESTED AND
CONVICTED FOR DISORDERLY CONDUCT WHEN THEY FAILED TO DISPERSE ON ORDERS
OF THE CHICAGO POLICE, WHO ANTICIPATED CIVIL DISORDER BECAUSE OF THE
BYSTANDERS' UNRULY CONDUCT.  THE ILLINOIS SUPREME COURT AFFIRMED. 
HELD: 

1.  PETITIONERS WERE DENIED DUE PROCESS SINCE THERE WAS NO
EVIDENTIARY SUPPORT FOR THEIR CONVICTIONS.  THOMPSON V. CITY OF
LOUISVILLE, 362 U.S. 199.  P.112. 

2.  THE CONVICTIONS WERE FOR DEMONSTRATING, NOT FOR REFUSING TO OBEY
POLICE ORDERS.  P. 112. 

3.  THE TRIAL JUDGE'S CHARGE ALLOWED THE JURY TO CONVICT FOR ACTS
PROTECTED BY THE FIRST AMENDMENT.  STROMBERG V. CALIFORNIA, 283 U.S.
359.  P. 113. 

39 ILL.2D 47, 233 N.E.2D 422, REVERSED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS A SIMPLE CASE.  PETITIONERS, ACCOMPANIED BY CHICAGO POLICE
AND AN ASSISTANT CITY ATTORNEY, MARCHED INA PEACEFUL AND ORDERLY
PROCESSION FROM CITY HALL TO THE MAYOR'S RESIDENCE TO PRESS THEIR
CLAIMS FOR DESEGREGATION OF THE PUBLIC SCHOOLS.  HAVING PROMISED TO
CEASE SINGING AT 8:30 P.M., THE MARCHERS DID SO.  ALTHOUGH PETITIONERS
AND THE OTHER DEMONSTRATORS CONTINUED TO MARCH IN A COMPLETELY LAWFUL
FASHION, THE ONLOOKERS BECAME UNRULY AS THE NUMBER OF BYSTANDERS
INCREASED.  CHICAGO POLICE, TO PREVENT WHAT THEY REGARDED AS AN
IMPENDING CIVIL DISORDER, DEMANDED THAT THE DEMONSTRATORS, UPON PAIN OF
ARREST, DISPERSE.  WHEN THIS COMMAND WAS NOT OBEYED, PETITIONERS WERE
ARRESTED FOR DISORDERLY CONDUCT. 

PETITIONERS' MARCH, IF PEACEFUL AND ORDERLY, FALLS WELL WITHIN THE
SPHERE OF CONDUCT PROTECTED BY THE FIRST AMENDMENT.  SEE SHUTTLESWORTH
V. CITY OF BIRMINGHAM, POST, P.147; BROWN V. LOUISIANA, 383 U.S. 131,
141-142 (1966) (PREVAILING OPINION OF MR. JUSTICE FORTAS); HENRY V.
CITY OF ROCK HILL, 376 U.S. 776 (1964); FIELDS V. SOUTH CAROLINA, 375
U.S. 44 (1963), REVERSING 240 S.C. 366, 126 S.E.2D 6 (1962).  THERE IS
NO EVIDENCE IN THIS RECORD THAT PETITIONERS' CONDUCT WAS DISORDERLY. 
THEREFORE, UNDER THE PRINCIPLE FIRST ESTABLISHED IN THOMPSON V. CITY OF
LOUISVILLE, 362 U.S. 199 (1960), CONVICTIONS SO TOTALLY DEVOID OF
EVIDENTIARY SUPPORT VIOLATE DUE PROCESS. 

THE OPINION OF THE SUPREME COURT OF ILLINOIS SUGGESTS THAT
PETITIONERS WERE CONVICTED NOT FOR THE MANNER IN WHICH THEY CONDUCTED
THEIR MARCH BUT RATHER FOR THEIR REFUSAL TO DISPERSE WHEN REQUESTED TO
DO SO BY CHICAGO POLICE.  SEE 39 ILL.2D 47, 60, 233 N.E.2D 422, 429
(1968).  HOWEVER REASONABLE THE POLICE REQUEST MAY HAVE BEEN AND
HOWEVER LAUDABLE THE POLICE MOTIVES, PETITIONERS WERE CHARGED AND
CONVICTED FOR HOLDING A DEMONSTRATION, NOT FOR REFUSAL TO OBEY A POLICE
OFFICER.  /1/  AS WE SAID IN GARNER V. LOUISIANA, 368 U.S. 157, 164
(1961):  "(IT IS AS MUCH A DENIAL OF DUE PROCESS TO SEND AN ACCUSED TO
PRISON FOLLOWING CONVICTION FOR A CHARGE THAT WAS NEVER MADE AS IT IS
TO CONVICT HIM UPON A CHARGE FOR WHICH THERE IS NO EVIDENCE TO SUPPORT
THAT CONVICTION."  SEE ALSO IN RE OLIVER, 333 U.S. 257, 273 (1948). 

FINALLY, SINCE THE TRIAL JUDGE'S CHARGE PERMITTED THE JURY TO
CONVICT FOR ACTS CLEARLY ENTITLED TO FIRST AMENDMENT PROTECTION,
STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931), INDEPENDENTLY REQUIRES
REVERSAL OF THESE CONVICTIONS. 

THE JUDGMENTS ARE

              REVERSED. 

/1/  THE TRIAL JUDGE CHARGED SOLELY IN TERMS OF THE CHICAGO
ORDINANCE.  NEITHER THE ORDINANCE NOR THE CHARGE DEFINED DISORDERLY
CONDUCT AS THE REFUSAL TO OBEY A POLICE ORDER. 

MR. JUSTICE DOUGLAS, WHILE JOINING THE CONCURRING OPINION OF MR.
JUSTICE BLACK, ALSO JOINS THIS OPINION. 

MR. JUSTICE STEWART AND MR. JUSTICE WHITE CONCUR IN THE JUDGMENT OF
THE COURT AND JOIN ITS OPINION INSOFAR AS IT HOLDS THAT UNDER THE
PRINCIPLE ESTABLISHED BY STROMBERG V. CALIFORNIA, 283 U.S. 359, THE
PETITIONERS' CONVICTIONS CANNOT STAND. 

MR. JUSTICE BLACK WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

THIS I THINK IS A HIGHLY IMPORTANT CASE WHICH REQUIRES MORE DETAILED
CONSIDERATION THAN THE COURT'S OPINION GIVES IT.  IT IN A WAY TESTS THE
ABILITY OF THE UNITED STATES TO KEEP THE PROMISES ITS CONSTITUTION
MAKES TO THE PEOPLE OF THE NATION.  AMONG THOSE PROMISES APPEARING IN
THE PREAMBLE TO THE CONSTITUTION ARE THE STATEMENTS THAT THE PEOPLE OF
THE UNITED STATES ORDAINED THIS BASIC CHARTER "IN ORDER TO FORM A MORE
PERFECT UNION, ESTABLISH JUSTICE, INSURE DOMESTIC TRANQUILLITY . . .
AND SECURE THE BLESSINGS OF LIBERTY TO OURSELVES AND OUR POSTERITY . .
. ."  SHORTLY AFTER THE ORIGINAL CONSTITUTION WAS ADOPTED, AGAIN
UNDOUBTEDLY IN AN ATTEMPT TO "SECURE THE BLESSINGS OF LIBERTY," THE
BILL OF RIGHTS WAS ADDED TO THE CONSTITUTION, IN WHICH THE FIRST
AMENDMENT, LATER MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT, PROVIDES THAT:  "CONGRESS SHALL MAKE NO LAW . . . 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." 

IN 1954 OUR COURT HELD THAT LAWS SEGREGATING PEOPLE ON THE BASIS OF
RACE OR COLOR IN THE PUBLIC SCHOOLS UNCONSTITUTIONALLY DENIED NEGROES
EQUAL PROTECTION OF THE LAWS.  /1/  NEGROES, AND MANY OTHERS WHO
SYMPATHIZED WITH THEM, COOPERATIVELY UNDERTOOK TO SPEED UP
DESEGREGATION.  THESE GROUPS ADOPTED PLANS UNDER WHICH THEY MARCHED ON
THE STREETS CARRYING PLACARDS, CHANTING, AND SINGING SONGS, ALL
DESIGNED TO PUBLICIZE THEIR GRIEVANCES AND TO PETITION THE VARIOUS
UNITS OF GOVERNMENT, STATE AND NATIONAL, AND FOR A REDRESS OF THESE
GRIEVANCES.  THEIR ACTIVITIES ALONG THESE LINES QUITE OBVIOUSLY AROUSED
HIGHLY EMOTIONAL FEELINGS BOTH ON THEIR PART AND ON THE PART OF OTHERS
WHO OPPOSED THE CHANGES IN LOCAL LAWS AND CUSTOMS WHICH THE "PICKETERS"
AND "DEMONSTRATORS" ADVOCATED.  AGITATION BETWEEN GROUPS BROUGHT ABOUT
SHARP CONFLICTS AND CLASHES, THREATS, FIGHTS, RIOTS, AND NEAR-RIOTS. 
THIS COURT, TO BE SURE, HAS HAD ITS DIFFICULTIES AND SHARP DIFFERENCES
OF OPINION IN DECIDING THE PRECISE BOUNDARIES DIVIDING WHAT IS
CONSTITUTIONALLY PERMISSIBLE AND DECIDING THE PRECISE BOUNDARIES
DIVIDING WHAT IS CONSTITUTIONALLY PERMISSIBLE AND IMPERMISSIBLE IN THIS
FIELD.  /2/  THERE HAVE ALSO BEEN SHARP DISPUTES OVER WHETHER THE COURT
CAN HOLD LAWS UNCONSTITUTIONAL BECAUSE THE COURT DEEMS THEM TO BE
"UNREASONABLE," "ARBITRARY," OR CONTRARY TO FUNDAMENTAL STANDARDS OF
ETHICS, MORALS, OR CONSCIENCE.  /3/  FORTUNATELY, HOWEVER, THESE
DIFFERENCES NEED NOT CONCERN US HERE.  FOR WHILE WE HAVE POINTED OUT IN
MANY CASES THAT THE STATES AND THEIR SUBORDINATE UNITS DO HAVE
CONSTITUTIONAL POWER TO REGULATE PICKETING, DEMONSTRATING, AND PARADING
BY STATUTES AND ORDINANCES NARROWLY DRAWN SO AS NOT TO ABRIDGE THE
RIGHTS OF SPEECH, PRESS, ASSEMBLY, OR PETITION, NEITHER CHICAGO NOR
ILLINOIS AT THE TIME THESE PETITIONERS WERE DEMONSTRATING HAD PASSED
ANY SUCH NARROWLY DRAWN LAWS.  /4/ 

THE FACTS UPON WHICH THESE ARRESTS AND CONVICTIONS FOR DISORDERLY
CONDUCT OCCURRED WERE THESE. 

PETITIONER GREGORY AND HIS GROUP HAD BECOME DISSATISFIED BECAUSE
BENJAMIN WILLIS, SUPERINTENDENT OF CHICAGO'S PUBLIC SCHOOL SYSTEM, WAS
NOT MOVING SPEEDILY ENOUGH TO DESEGREGATE THE PUBLIC SCHOOLS.  WHILE
MAYOR DALEY DID NOT APPEAR TO HAVE LEGAL AUTHORITY TO REMOVE DR.
WILLIS, /5/  THE GROUP EVIDENTLY BELIEVED THE MAYOR COULD CAUSE HIM TO
BE REMOVED IF HE WANTED TO DO SO, AND THEIR PRODDING WAS THEREFORE
DIRECTED AT THE MAYOR AS WELL AS AGAINST WILLIS.  THE GROUP MARCH BEGAN
NEAR THE CHICAGO LOOP DISTRICT AT 4:30 P.M. AND ENDED FIVE MILES AWAY
IN THE NEIGHBORHOOD OF DALEY'S HOME.  A LIEUTENANT OF POLICE, FOUR
POLICE SERGEANTS, AND ABOUT FORTY POLICEMEN MET GREGORY AT THE
GATHERING PLACE IN GRANT PARK.  THERE GREGORY ADDRESSED THE MARCHERS,
SAYING: 

"FIRST WE WILL GO OVER TO THE SNAKE PIT (CITY HALL).  WHEN WE LEAVE
THERE, WE WILL GO OUT TO THE SNAKE'S HOUSE (THE MAYOR'S HOME).  THEN,
WE WILL CONTINUE TO GO OUT TO MAYOR DALEY'S HOME UNTIL HE FIRES BEN
WILLIS (SUPERINTENDENT OF SCHOOLS)." 

THE DEMONSTRATORS MARCHED TO THE CITY HALL, AND THEN THEY MARCHED TO
THE MAYOR'S HOME ABOUT FIVE MILES AWAY, ARRIVING AT ABOUT 8 P.M..  THE
DEMONSTRATORS WERE ACCOMPANIED BY THE POLICE AND BY THE ASSISTANT CITY
ATTORNEY FROM THE PARK TO THE MAYOR'S HOME.  WHEN THEY REACHED THIS
NEIGHBORHOOD, THE DEMONSTRATORS BEGAN MARCHING AROUND AND AROUND NEAR
THE MAYOR'S HOME.  MEANWHILE THE CROWD OF SPECTATORS FROM THE
NEIGHBORHOOD KEPT INCREASING, AND ITS LANGUAGE AND CONDUCT BECAME
ROUGHER AND TOUGHER.  THE EVENTS LEADING UP TO THE ARREST OF THE
DEMONSTRATORS ARE SET OUT IN DETAIL IN THE OPINION OF THE ILLINOIS
SUPREME COURT, AND I AGREE FULLY WITH THAT COURT'S DESCRIPTION OF THESE
EVENTS, WHICH I HAVE REPRINTED AS AN APPENDIX TO THIS OPINION.  THIS
EPISODE FINALLY CAME TO A CONCLUSION AT ABOUT 9:30 P.M.  FEARFUL THAT
THE THREATENING CROWD OF ONLOOKERS COULD NO LONGER BE CONTAINED, THE
POLICE ASKED GREGORY AND HIS MARCHERS TO LEAVE THE AREA.  WHEN THEY
REFUSED, THEY WERE ARRESTED AND CHARGED WITH VIOLATION OF CHICAGO'S
DISORDERLY CONDUCT ORDINANCE, WHICH PROVIDES AS FOLLOWS: 

"ALL PERSONS WHO SHALL MAKE, AID, COUNTENANCE, OR ASSIST IN MAKING
ANY IMPROPER NOISE, RIOT, DISTURBANCE, BREACH OF THE PEACE, OR
DIVERSION TENDING TO A BREACH OF THE PEACE, WITHIN THE LIMITS OF THE
CITY; ALL PERSONS WHO SHALL COLLECT IN BODIES OR CROWDS FOR UNLAWFUL
PURPOSES, OR FOR ANY PURPOSE, TO THE ANNOYANCE OR DISTURBANCE OF OTHER
PERSONS; . . . SHALL BE DEEMED GUILTY OF DISORDERLY CONDUCT, AND UPON
CONVICTION THEREOF, SHALL BE SEVERALLY FINED NOT LESS THAN ONE DOLLAR
NOR MORE THAN TWO HUNDRED DOLLARS FOR EACH OFFENSE."  MUNICIPAL CODE OF
CHICAGO, SEC. 193-1. 

I AGREE WITH THE ILLINOIS SUPREME COURT THAT THE "RECORD SHOWS A
DETERMINED EFFORT BY THE POLICE TO ALLOW THE MARCHERS TO PEACEFULLY
DEMONSTRATE AND AT THE SAME TIME MAINTAIN ORDER."  I ALSO THINK THE
RECORD SHOWS THAT OUTSIDE OF THE MARCHING AND PROPAGANDIZING OF THEIR
VIEWS AND PROTESTS, GREGORY AND HIS GROUP WHILE MARCHING DID ALL IN
THEIR POWER TO MAINTAIN ORDER.  INDEED, IN THE FACE OF JEERS, INSULTS,
AND ASSAULTS WITH ROCKS AND EGGS, GREGORY AND HIS GROUP MAINTAINED A
DECORUM THAT SPEAKS WELL FOR THEIR DETERMINATION SIMPLY TO TELL THEIR
SIDE OF THEIR GRIEVANCES AND COMPLAINTS.  EVEN THE "SNAKE" AND "SNAKE
PIT" INVECTIVES USED BY GREGORY AND HIS DEMONSTRATORS, UNLIKE SOME USED
BY THEIR HECKLERS, REMAINED WITHIN THE GENERAL GIVE-AND-TAKE OF HEATED
POLITICAL ARGUMENT.  THUS BOTH POLICE AND DEMONSTRATORS MADE THEIR BEST
EFFORTS FAITHFULLY TO DISCHARGE THEIR RESPONSIBILITIES AS OFFICERS AND
CITIZENS, BUT THEY WERE NEVERTHELESS UNABLE TO RESTRAIN THE HOSTILE
HECKLERS WITHIN DECENT AND ORDERLY BOUNDS.  THESE FACTS DISCLOSED BY
THE RECORD POINT UNERRINGLY TO ONE CONCLUSION, NAMELY, THAT WHEN GROUPS
WITH DIAMETRICALLY OPPOSED, DEEP-SEATED VIEWS ARE PERMITTED TO AIR
THEIR EMOTIONAL GRIEVANCES, SIDE BY SIDE ON CITY STREETS, TRANQUILITY
AND ORDER CANNOT BE MAINTAINED EVEN BY THE JOINT EFFORTS OF THE FINEST
AND BEST OFFICERS AND OF THOSE WHO DESIRE TO BE THE MOST LAW-ABIDING
PROTESTORS OF THEIR GRIEVANCES. 

IT IS BECAUSE OF THIS TRUTH, AND A DESIRE BOTH TO PROMOTE ORDER AND
TO SAFEGUARD FIRST AMENDMENT FREEDOMS, THAT THIS COURT HAS REPEATEDLY
WARNED STATES AND GOVERNMENTAL UNITS THAT THEY CANNOT REGULATE CONDUCT
CONNECTED WITH THESE FREEDOMS THROUGH USE OF SWEEPING, DRAGNET STATUTES
THAT MAY, BECAUSE OF VAGUENESS, JEOPARDIZE THESE FREEDOMS.  IN THOSE
CASES, HOWEVER, WE HAVE BEEN CAREFUL TO POINT OUT THAT THE CONSTITUTION
DOES NOT BAR ENACTMENT OF LAWS REGULATING CONDUCT, EVEN THOUGH
CONNECTED WITH SPEECH, PRESS, ASSEMBLY, AND PETITION, IF SUCH LAWS
SPECIFICALLY BAR ONLY THE CONDUCT DEEMED OBNOXIOUS AND ARE CAREFULLY
AND NARROWLY AIMED AT THAT FORBIDDEN CONDUCT.  /6/  THE DILEMMA
REVEALED BY THIS RECORD IS A CRYING EXAMPLE OF A NEED FOR SOME SUCH
NARROWLY DRAWN LAW.  IT IS NOT OUR DUTY AND INDEED NOT WITHIN OUR POWER
TO SET OUT AND DEFINE WITH PRECISION JUST WHAT STATUTES CAN BE LAWFULLY
ENACTED TO DEAL WITH SITUATIONS LIKE THE ONE CONFRONTED HERE BY POLICE
AND PROTESTORS, BOTH OF WHOM APPEAR TO US TO HAVE BEEN CONSCIENTIOUSLY
TRYING TO DO THEIR DUTIES AS THEY UNDERSTOOD THEM.  PLAINLY, HOWEVER,
NO MANDATE IN OUR CONSTITUTION LEAVES STATES AND GOVERNMENTAL UNITS
POWERLESS TO PASS LAWS TO PROTECT THE PUBLIC FROM THE KIND OF
BOISTEROUS AND THREATENING CONDUCT THAT DISTURBS THE TRANQUILITY OF
SPOTS SELECTED BY THE PEOPLE EITHER FOR HOMES, WHEREIN THEY CAN ESCAPE
THE HURLY-BURLY OF THE OUTSIDE BUSINESS AND POLITICAL WORLD, OR FOR
PUBLIC AND OTHER BUILDINGS THAT REQUIRE PEACE AND QUIET TO CARRY OUT
THEIR FUNCTIONS, SUCH AS COURTS, LIBRARIES, SCHOOLS, AND HOSPITALS. 

THE DISORDERLY CONDUCT ORDINANCE UNDER WHICH THESE PETITIONERS WERE
CHARGED AND CONVICTED IS NOT, HOWEVER, A NARROWLY DRAWN LAW,
PARTICULARLY DESIGNED TO REGULATE CERTAIN KINDS OF CONDUCT SUCH AS
MARCHING OR PICKETING OR DEMONSTRATING ALONG THE STREETS OR HIGHWAYS. 
NOR DOES IT REGULATE THE TIMES OR PLACES OR MANNER OF CARRYING ON SUCH
ACTIVITIES.  TO THE CONTRARY, IT MIGHT BETTER BE DESCRIBED AS A MEAT-AX
ORDINANCE, GATHERING IN ONE COMPREHENSIVE DEFINITION OF AN OFFENSE A
NUMBER OF WORDS WHICH HAVE A MULTIPLICITY OF MEANINGS, SOME OF WHICH
WOULD COVER ACTIVITY SPECIFICALLY PROTECTED BY THE FIRST AMENDMENT. 
THE AVERAGE PERSON CHARGED WITH ITS VIOLATION IS NECESSARILY LEFT
UNCERTAIN AS TO WHAT CONDUCT AND ATTITUDES OF MIND WOULD BE ENOUGH TO
CONVICT UNDER IT.  WHO, FOR EXAMPLE, COULD POSSIBLY FORESEE WHAT KIND
OF NOISE OR PROTECTED SPEECH WOULD BE HELD TO BE "IMPROPER"?  THAT, OF
COURSE, WOULD DEPEND ON SENSIBILITIES, NERVES, TENSIONS, AND ON
COUNTLESS OTHER THINGS.  AS 308 (1940), COMMON-LAW BREACH OF PEACE IS
AT ITS BEST A CONFUSING OFFENSE THAT MAY IMPERIL FIRST AMENDMENT
RIGHTS.  BUT HOW INFINITELY MORE DOUBTFUL AND UNCERTAIN ARE THE
BOUNDARIES OF AN OFFENSE INCLUDING ANY "DIVERSION TENDING TO A BREACH
OF THE PEACE . . . ".  MOREOVER, THE ORDINANCE GOES ON TO STATE THAT IT
SHALL BE A CRIME FOR PERSONS TO "COLLECT IN BODIES OR CROWDS FOR
UNLAWFUL PURPOSES, OR FOR ANY PURPOSE, TO THE ANNOYANCE OR DISTURBANCE
OF OTHER PERSONS . . . ."  SUCH LANGUAGE COULD AUTHORIZE CONVICTION
SIMPLY BECAUSE THE FORM OF THE PROTEST DISPLEASED SOME OF THE
ONLOOKERS, AND OF COURSE A CONVICTION ON THAT GROUND WOULD ENCROACH ON
FIRST AMENDMENT RIGHTS.  SEE THORNHILL V. ALABAMA, 310 U.S. 88 (1940);
EDWARDS V. SOUTH CAROLINA, 372 U.S. 229 (1963); COX V. LOUISIANA, 379
U.S. 536 (1965).  AND IT MUST BE REMEMBERED THAT ONLY THE TINIEST BIT
OF PETITIONERS' CONDUCT COULD POSSIBLY BE THOUGH ILLEGAL HERE-- THAT
IS, WHAT THEY DID AFTER THE POLICEMAN'S ORDER TO LEAVE THE AREA.  THE
RIGHT "PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A
REDRESS OF GRIEVANCES" IS SPECIFICALLY PROTECTED BY THE FIRST
AMENDMENT.  FOR THE ENTIRE FIVE-MILE MARCH, THE WALKING BY PETITIONERS
IN A GROUP, THE LANGUAGE, AND THE CHANTS AND SONGS WERE ALL TREATED BY
THE CITY'S ASSISTANT ATTORNEY AND ITS SPECIALLY DETAILED POLICEMEN AS
LAWFUL, NOT LAWLESS, CONDUCT. 

THE SO-CALLED "DIVERSION TENDING TO A BREACH OF THE PEACE" HERE WAS
LIMITED ENTIRELY AND EXCLUSIVELY TO THE FACT THAT WHEN THE POLICEMAN IN
CHARGE OF THE SPECIAL POLICE DETAIL CONCLUDED THAT THE HECKLERS
OBSERVING THE MARCH WERE DANGEROUSLY CLOSE TO RIOTING AND THAT THE
DEMONSTRATORS AND OTHERS WERE LIKELY TO BE ENGULFED IN THAT RIOT, HE
ORDERED GREGORY AND HIS DEMONSTRATORS TO LEAVE, AND GREGORY-- STANDING
ON WHAT HE DEEMED TO BE HIS CONSTITUTIONAL RIGHTS-- REFUSED TO DO SO.
THE "DIVERSION" COMPLAINED OF ON THE PART OF GREGORY AND THE OTHER
MARCHERS WAS NOT ANY NOISE THEY MADE OR ANNOYANCE OR DISTURBANCE OF
"OTHER PERSONS" THEY HAD INFLICTED.  THEIR GUILT OF "DISORDERLY
CONDUCT" THEREFORE TURNS OUT TO BE THEIR REFUSAL TO OBEY INSTANTER AN
INDIVIDUAL POLICEMAN'S COMMAND TO LEAVE THE AREA OF THE MAYOR'S HOME. 
SINCE NEITHER THE CITY COUNCIL NOR THE STATE LEGISLATURE HAD ENACTED A
NARROWLY DRAWN STATUTE FORBIDDING DISRUPTIVE PICKETING OR DEMONSTRATING
IN A RESIDENTIAL NEIGHBORHOOD, IF THE POLICEMAN'S COMMAND WAS A LAW
WHICH THE PETITIONERS WERE BOUND TO OBEY AT THEIR PERIL.  BUT UNDER OUR
DEMOCRATIC SYSTEM OF GOVERNMENT, LAWMAKING IS NOT ENTRUSTED TO THE
MOMENT-TO-MOMENT JUDGMENT OF THE POLICEMAN ON HIS BEAT.  LAWS, THAT IS
VALID LAWS, ARE TO BE MADE BY REPRESENTATIVES CHOSEN TO MAKE LAWS FOR
THE FUTURE, NOT BY POLICE OFFICER WHOSE DUTY IS TO ENFORCE LAWS ALREADY
ENACTED AND TO MAKE ARRESTS ONLY FOR CONDUCT ALREADY MADE CRIMINAL. 
ONE OF OUR PROUDEST BOASTS IS THAT NO MAN CAN BE CONVICTED OF CRIME FOR
CONDUCT, INNOCENT WHEN ENGAGED IN, THAT IS LATER MADE CRIMINAL.  SEE,
E.G., CHAMBERS V. FLORIDA, 309 U.S. 227, 236 (1940).  TO LET A
POLICEMAN'S COMMAND BECOME EQUIVALENT TO A CRIMINAL STATUTE COMES
DANGEROUSLY NEAR MAKING OUR GOVERNMENT ONE OF MEN RATHER THAN OF LAWS. 
SEE COX V. LOUISIANA, 379 U.S. 559, 579 (1965) (SEPARATE OPINION). 
THERE ARE AMPLE WAYS TO PROTECT THE DOMESTIC TRANQUILITY WITHOUT
SUBJECTING FIRST AMENDMENT FREEDOMS TO SUCH A CLUMSY AND UNWIELDY
WEAPON. 

THE CITY OF CHICAGO, RECOGNIZING THE SERIOUS FIRST AMENDMENT
PROBLEMS RAISED BY THE DISORDERLY CONDUCT ORDINANCE AS IT IS WRITTEN,
ARGUES THAT THESE CONVICTIONS SHOULD NEVERTHELESS BE AFFIRMED IN LIGHT
OF THE NARROWING CONSTRUCTION PLACED ON THE ORDINANCE BY THE ILLINOIS
SUPREME COURT IN THIS CASE.  THAT COURT HELD THAT THE ORDINANCE. 

"DOES NOT AUTHORIZE THE POLICE TO STOP A PEACEFUL DEMONSTRATION
MERELY BECAUSE A HOSTILE CROWD MAY NOT AGREE WITH THE VIEWS OF THE
DEMONSTRATORS.  IT IS ONLY WHERE THERE IS AN IMMINENT THREAT OF
VIOLENCE, THE POLICE HAVE MADE ALL REASONABLE EFFORTS TO.PROTECT THE
DEMONSTRATORS, THE POLICE HAVE REQUESTED THAT THE DEMONSTRATION BE
STOPPED AND EXPLAINED THE REQUEST, IF THERE BE TIME, AND THERE IS A
REFUSAL OF THE POLICE REQUEST, THAT AN ARREST FOR AN OTHERWISE LAWFUL
DEMONSTRATION MAY BE MADE."  39 ILL.2D 47, 60, 233 N.E.2D 422, 429. 
THIS INTERPRETATION OF THE ORDINANCE IS, OF COURSE, BINDING ON THIS
COURT, AND THE CONSTRUCTION OF THE ILLINOIS SUPREME COURT IS AN
AUTHORITATIVE AS IF THIS LIMITATION WERE WRITTEN OF OUR PROBLEM.  THE
INFRINGEMENT OF FIRST AMENDMENT RIGHTS WILL NOT BE CURED IF THE
NARROWING CONSTRUCTION IS SO UNFORESEEABLE THAT MEN OF COMMON
INTELLIGENCE COULD NOT HAVE REALIZED THE LAW'S LIMITED SCOPE AT THE
ONLY RELEVANT TIME, WHEN THEIR ACTS WERE COMMITTED, CF. LANZETTA V. NEW
JERSEY, 306 U.S. 451, 456-457 (1939), OR IF THE LAW REMAINS EXCESSIVELY
SWEEPING EVEN AS NARROWED, E.G., WINTERS V. NEW YORK, 333 U.S. 507
(1948).  PETITIONERS PARTICULARLY PRESS THE COURT TO DISPOSE OF THE
CASE ON THIS LATTER GROUND.  THEY RAISE TROUBLESOME QUESTIONS
CONCERNING THE EXTENT TO WHICH, EVEN UNDER THE NARROWED CONSTRUCTION,
GUILT STILL DEPENDS ON THE MERE REFUSAL TO OBEY A POLICEMAN'S ORDER. 
AND THEY SUGGEST THAT THE SCOPE OF THE POLICE OBLIGATION TO ATTEMPT
FIRST TO DEAL WITH THE HOSTILE AUDIENCE IS STILL NOT MADE SUFFICIENTLY
CLEAR. 

IT IS NOT NECESSARY FOR THE COURT TO RESOLVE SUCH ISSUES IN THE
PRESENT CASE, HOWEVER, BECAUSE THE CHICAGO ORDINANCE, AS APPLIED HERE,
INFRINGED ON FIRST AMENDMENT RIGHTS FOR AN EVEN MORE FUNDAMENTAL
REASON.  WHATEVER THE VALIDITY OF THE ILLINOIS SUPREME COURT'S
CONSTRUCTION, THIS WAS SIMPLY NOT THE THEORY ON WHICH THESE PETITIONERS
WERE CONVICTED.  IN EXPLAINING THE ELEMENTS OF THE OFFENSE TO THE JURY,
THE TRIAL JUDGE MERELY READ THE LANGUAGE OF THE ORDINANCE.  THE JURY
WAS NOT ASKED TO FIND WHETHER, AS THE ILLINOIS SUPREME COURT'S
CONSTRUCTION APPARENTLY REQUIRES, THERE WAS "AN IMMINENT THREAT OF
VIOLENCE," OR WHETHER THE POLICE HAD "MADE ALL REASONABLE EFFORTS TO
PROTECT THE DEMONSTRATORS."  RATHER, IT WAS SUFFICIENT FOR THE JURY TO
DECIDE THAT PETITIONERS HAD MADE AN "IMPROPER NOISE" OR A "DIVERSION
TENDING TO A BREACH OF THE PEACE," OR HAD "COLLECTED) IN BODIES OR
CROWDS FOR UNLAWFUL PURPOSES, OR FOR ANY PURPOSE, TO THE ANNOYANCE OR
DISTURBANCE OF OTHER PERSONS." 

IN FACT, FAR FROM TAKING ACCOUNT OF THE LIMITING FACTORS STRESSED BY
THE ILLINOIS SUPREME COURT, THE JUDGE'S CHARGE WAS BASED ON PRECISELY
THE OPPOSITE THEORY.  THE JURY WAS INSTRUCTED, OVER PETITIONERS'
OBJECTION, THAT "THE FACT THAT PERSONS OTHER THAN THESE DEFENDANTS MAY
OR MAY NOT HAVE VIOLATED ANY LAWS OR MAY OR MAY NOT HAVE BEEN ARRESTED
SHOULD NOT BE CONSIDERED BY YOU IN DETERMINING THE GUILT OR INNOCENCE
OF THESE DEFENDANTS."  THE SIGNIFICANCE OF THIS INSTRUCTION IN THE
CONTEXT OF THE EVIDENCE AT TRIAL IS OF COURSE APPARENT-- THE JURY WAS
SIMPLY TOLD TO IGNORE QUESTIONS CONCERNING THE ACTS OF VIOLENCE
COMMITTED BY THE CROWD OF ONLOOKERS AND ATTEMPTS MADE BY THE POLICE TO
ARREST THOSE DIRECTLY RESPONSIBLE FOR THEM.  /7/  UNDER THESE
CIRCUMSTANCES, THE PRINCIPLE ESTABLISHED BY STROMBERG V. CALIFORNIA 283
U.S. 359 (1931), COMPELS US TO SET ASIDE THESE CONVICTIONS.  AS WE
EXPLAINED IN WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 292 (1942): 

"THAT IS TO SAY, THE VERDICT OF THE JURY FOR ALL WE KNOW MAY HAVE
BEEN RENDERED ON (AN UNCONSTITUTIONAL) GROUND ALONE, SINCE IT DID NOT
SPECIFY THE BASIS ON WHICH IT RESTED.  IT THEREFORE FOLLOWS HERE AS IN
STROMBERG . . . THAT IF ONE OF THE GROUNDS FOR CONVICTION IS INVALID
UNDER THE FEDERAL CONSTITUTION, THE JUDGMENT CANNOT BE SUSTAINED." 

AT THE TIME THE PETITIONERS WERE TRIED, THE ILLINOIS SUPREME COURT
HAD NOT YET ANNOUNCED ITS NARROWING CONSTRUCTION OF THE CHICAGO
DISORDERLY CONDUCT ORDINANCE.  THE TRIAL JUDGE'S INSTRUCTIONS SUPPLIED
THE JURY ONLY WITH THE UNADORNED LANGUAGE OF THE STATUTE.  THUS IT IS
ENTIRELY POSSIBLE THAT THE JURY CONVICTED THE PETITIONERS ON THE GROUND
THAT GREGORY AND THE OTHERS WHO DEMONSTRATED WITH HIM HAD, IN THE
LANGUAGE OF THE ORDINANCE, "COLLECTED) IN BODIES OR CROWDS . . . TO THE
ANNOYANCE OR DISTURBANCE OF OTHER PERSONS," SIMPLY BECAUSE THE FORM OF
THEIR PROTEST HAD DISPLEASED SOME OF THE ONLOOKERS.  SINCE THE
PETITIONERS COULD NOT CONSTITUTIONALLY BE CONVICTED ON THIS GROUND, /8/
STROMBERG COMPELS THE REVERSAL OF THESE CONVICTIONS.  /9/ 

IN AGREEING TO THE REVERSAL OF THESE CONVICTIONS, HOWEVER, I WISH
ONCE MORE TO SAY THAT I THINK OUR FEDERAL CONSTITUTION DOES NOT RENDER
THE STATES POWERLESS TO REGULATE THE CONDUCT OF DEMONSTRATORS AND
PICKETERS, CONDUCT WHICH IS MORE THAN "SPEECH," MORE THAN "PRESS," MORE
THAN "ASSEMBLY," AND MORE THAN "PETITION," AS THOSE TERMS ARE USED IN
THE FIRST AMENDMENT.  NARROWLY DRAWN STATUTES REGULATING THE CONDUCT OF
DEMONSTRATORS AND PICKETERS ARE NOT IMPOSSIBLE TO DRAFT.  AND NARROWLY
DRAWN STATUTES REGULATING THESE ACTIVITIES ARE NOT IMPOSSIBLE TO PASS
IF THE PEOPLE WHO ELECT THEIR LEGISLATORS WANT THEM PASSED.  PASSAGE OF
SUCH LAWS, HOWEVER, LIKE THE PASSAGE OF ALL OTHER LAWS, CONSTITUTES IN
THE FINAL ANALYSIS A CHOICE OF POLICIES BY THE ELECTED REPRESENTATIVES
OF THE PEOPLE. 

I, OF COURSE, DO NOT MEAN TO SAY OR EVEN TO INTIMATE THAT FREEDOM OF
SPEECH, PRESS, ASSEMBLY, OR PETITION CAN BE ABRIDGED SO LONG AS THE
FIRST AMENDMENT REMAINS UNCHANGED IN OUR CONSTITUTION.  BUT TO SAY THAT
THE FIRST AMENDMENT GRANTS THOSE BROAD RIGHTS FREE FROM ANY EXERCISE OF
GOVERNMENTAL POWER TO REGULATE CONDUCT, AS DISTINGUISHED FROM SPEECH,
PRESS, ASSEMBLY, OR PETITION, WOULD SUBJECT ALL THE PEOPLE OF THE
NATION TO THE UNCONTROLLABLE WHIM AND ARROGANCE OF SPEAKERS, AND
WRITERS, AND PROTESTERS, AND GRIEVANCE BEARERS.  AS MR. JUSTICE
GOLDBERG WROTE FOR THE COURT IN COX V. LOUISIANA, 379 U.S. 536, 554
(1965): 

"THE RIGHTS OF FREE SPEECH AND ASSEMBLY, WHILE FUNDAMENTAL IN OUR
DEMOCRATIC SOCIETY, STILL DO NOT MEAN THAT EVERYONE WITH OPINIONS OR
BELIEFS TO EXPRESS MAY ADDRESS A GROUP AT ANY PUBLIC PLACE AND AT ANY
TIME.  THE CONSTITUTIONAL GUARANTEE OF LIBERTY IMPLIES THE EXISTENCE OF
AN ORGANIZED SOCIETY MAINTAINING PUBLIC ORDER, WITHOUT WHICH LIBERTY
ITSELF WOULD BE LOST IN THE EXCESSES OF ANARCHY."  WERE THE AUTHORITY
OF GOVERNMENT SO TRIFLING AS TO PERMIT ANYONE WITH A COMPLAINT TO HAVE
THE VAST POWER TO DO ANYTHING HE PLEASED, WHEREVER HE PLEASED, AND
WHENEVER HE PLEASED, OUR CUSTOMS AND OUR HABITS OF CONDUCT, SOCIAL,
POLITICAL, ECONOMIC, ETHICAL, AND RELIGIOUS, WOULD ALL BE WIPED OUT,
AND BECOME NO MORE THAN RELICS OF A GONE BUT NOT FORGOTTEN PAST. 
CHURCHES WOULD BE COMPELLED TO WELCOME INTO THEIR BUILDINGS INVADERS
WHO CAME BUT TO SCOFF AND JEER; STREETS AND HIGHWAYS AND PUBLIC
BUILDINGS WOULD CEASE TO BE AVAILABLE FOR THE PURPOSES FOR WHICH THEY
WERE CONSTRUCTED AND DEDICATED WHENEVER DEMONSTRATORS AND PICKETERS
WANTED TO USE THEM FOR THEIR OWN PURPOSES.  AND PERHAPS WORSE THAN ALL
OTHER CHANGES, THEIR PRIVACY AND THEIR DAILY WAY OF LIVING, WOULD HAVE
TO HAVE THEIR DOORS THROWN OPEN TO ALL WHO DESIRED TO CONVERT THE
OCCUPANTS TO NEW VIEWS, NEW MORALS, AND A NEW WAY OF LIFE.  MEN AND
WOMEN WHO HOLD PUBLIC OFFICE WOULD BE COMPELLED, SIMPLY BECAUSE THEY
DID HOLD PUBLIC OFFICE, TO LOSE THE COMFORTS AND PRIVACY OF AN
UNPICKETED HOME.  I BELIEVE THAT OUR CONSTITUTION, WRITTEN FOR THE
AGES, TO ENDURE EXCEPT AS CHANGED IN THE MANNER IT PROVIDES, DID NOT
CREATE A GOVERNMENT WITH SUCH MONUMENTAL WEAKNESSES.  SPEECH AND PRESS
ARE, OF COURSE, TO BE FREE, SO THAT PUBLIC MATTERS CAN BE DISCUSSED
WITH IMPUNITY.  BUT PICKETING AND DEMONSTRATING CAN BE REGULATED LIKE
OTHER CONDUCT OF MEN.  I BELIEVE THAT THE HOMES OF MEN, SOMETIMES THE
LAST CITADEL OF THE TIRED, THE WEARY, AND THE SICK, CAN BE PROTECTED BY
GOVERNMENT FROM NOISY, MARCHING, TRAMPING, THREATENING PICKETERS AND
DEMONSTRATORS BENT ON FILLING THE MINDS OF MEN, WOMEN, AND CHILDREN
WITH FEARS OF THE UNKNOWN. 

FOR THESE REASONS I CONCUR IN THE REVERSAL. 

/1/  BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954). 

/2/  SEE, E.G., COX V. LOUISIANA, 379 U.S. 536 (1965); ADDERLEY V.
FLORIDA, 385 U.S. 39 (1966). 

/3/  SEE, E.G., CHAMBERS V. FLORIDA, 309 U.S. 227, 235-236, N. 8
(1940); ROCHIN V. CALIFORNIA, 342 U.S. 165 (1952); ID., AT 174
(CONCURRING OPINION); FERGUSON V. SKRUPA, 372 U.S. 726 (1963). 

/4/  THE NEAREST THING TO SUCH A LAW IN EXISTENCE AT THAT TIME WAS
SEC. 36-31 OF THE MUNICIPAL CODE OF CHICAGO, WHICH REQUIRED WRITTEN
PERMITS FOR PARADES ON "ANY PUBLIC WAY" OR FOR "ANY OPEN AIR PUBLIC
MEETING . . . IN OR UPON ANY PUBLIC WAY."  PETITIONERS WERE NEITHER
CHARGED WITH NOR CONVICTED FOR THE OFFENSE OF FAILING TO OBTAIN A
WRITTEN PERMIT.  INDEED, THE CITY CLEARLY GAVE ITS EFFECTIVE PERMISSION
TO THE MARCHERS BY SENDING A CITY ATTORNEY AND A DETAIL OF SPECIALLY
TRAINED OFFICERS TO PROTECT THEM ALONG EVERY FOOT OF THEIR MARCH. 
SINCE "(DEEPLY EMBEDDED TRADITIONAL WAYS OF CARRYING OUT STATE POLICY .
. . ARE OFTEN TOUGHER AND TRUER LAW THAN THE DEAD WORDS OF THE WRITTEN
TEXT," NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362, 369
(1940 , THIS MARCH COULD NOT BE CONSIDERED ILLEGAL IN AND OF ITSELF. 

/5/  RESPONDENT ASSERTS THAT UNDER ILL. REV. STAT., C. 122, SEC. 34
13 (1967), THE SUPERINTENDENT OF SCHOOLS IS ACCOUNTABLE SOLELY TO THE
BOARD OF EDUCATION AND NOT TO THE MAYOR. 

/6/  SEE, E.G., THORNHILL V. ALABAMA, 310 U.S. 88 (1940); CANTWELL
V. CONNECTICUT, 310 U.S. 296 (1940); GIBONEY V. EMPIRE STORAGE CO., 336
U.S. 490 (1949); SCULL V. VIRGINIA, 359 U.S. 344 (1959). 

/7/  THE TRIAL JUDGE EXPLAINED THE NEED FOR THIS INSTRUCTION TO
COUNSEL, IN CHAMBERS, AS FOLLOWS: "(THE RECORD IS REPLETE WITH EVIDENCE
THAT A JURY MAY WELL CONSIDER TO ESTABLISH THE VIOLATION OF THE LAW ON
THE PART OF THE SO-CALLED SPECTATORS AND NEIGHBORS, AND THE RECORD IS
SILENT AS TO WHETHER ANY OF THEM WERE ARRESTED OR NOT. 

        .          .          .          . 

"AS FAR AS WHY DIDN'T THEY ARREST THESE OTHER PEOPLE, WHY DIDN'T
THEY ARREST THE SPECTATORS AND SO ON AND SO ON, IT SEEMS TO ME THAT BY
VIRTUE OF THE WAY THE EVIDENCE WENT IN, THIS WILL BE A QUESTION THAT
WILL BOTHER THESE JURORS UNLESS IT IS TAKEN CARE OF."     /8/  SEE
THORNHILL V. ALABAMA, 310 U.S. 88 (1940); EDWARDS V. SOUTH CAROLINA,
372 U.S. 229 (1963); COX V. LOUISIANA, 379 U.S. 536 (1965). 

/9/  SEE ALSO COLE V. ARKANSAS, 333 U.S. 196 (1948); COLE V.
ARKANSAS, 338 U.S. 345 (1949). 

APPENDIX TO OPINION OF BLACK, J., CONCURRING. 

        EXCERPT FROM OPINION OF THE SUPREME COURT OF ILLINOIS. 

"ABOUT 4:30 P.M. THE MARCHERS, TWO ABREAST, WALKED OUT OF THE PARK
AND WENT TO THE CITY HALL IN THE LOOP.  THE MARCHERS THEN WALKED SOUTH
ON STATE STREET TO 35TH STREET AND THEN PROCEEDED WEST TO LOWE AVENUE,
A DISTANCE OF ABOUT 5 MILES FROM THE CITY HALL.  THE MAYOR'S HOME IS AT
3536 SOUTH LOWE AVENUE.  HE DEMONSTRATORS HAD INCREASED IN NUMBER TO
ABOUT 85 AND THEY ARRIVED AT THE MAYOR'S HOME ABOUT 8:00 O'CLOCK P.M.
IN ADDITION TO THE POLICE, THE MARCHERS WERE ACCOMPANIED BY THEIR
ATTORNEY AND AN ASSISTANT CITY COUNSEL.  AT THE SUGGESTION OF AN
ASSISTANT CITY COUNSEL, GREGORY HAD AGREED THAT THE GROUP WOULD QUIT
SINGING AT 8:30 P.M.  COMMANDER PIERSON, DISTRICT COMMANDER OF THE 9TH
POLICE DISTRICT WHICH ENCOMPASSES THIS AREA, MET LIEUTENANT HOUGESON AT
THE CORNER OF 35TH AND LOWE AND ASSUMED COMMAND OF THE POLICE
OPERATIONS. 

"THERE WERE ABOUT 35 PEOPLE ON THE CORNER AND A GROUP OF ABOUT 6 OR
8 YOUNGSTERS CARRYING A SIGN 'WE LOVE MAYOR DALEY' TRIED TO JOIN THE
MARCHERS BUT THE POLICE STOPPED THEM.  AS THE DEMONSTRATORS STARTED
SOUTH INTO THE 3500 BLOCK OF LOWE AVENUE, GREGORY TESTIFIED HE WENT
BACK THROUGH THE LINE TO TELL EVERYONE JUST TO KEEP SINGING AND TO KEEP
MARCHING.  'DON'T STOP AND DON'T ANSWER ANY ONE BACK.  DON'T WORRY
ABOUT ANYTHING THAT IS GOING TO BE SAID TO YOU.  JUST KEEP MARCHING. 
IF ANYONE HITS YOU OR ANYTHING, TRY TO REMEMBER WHAT THEY LOOK LIKE,
BUT ABOVE ALL MEANS, DO NOT HIT THEM BACK.  KEEP THE LINE STRAIGHT AND
KEEP IT TIGHT.'  THE DEMONSTRATORS CHANTED 'BEN WILLIS MUST GO, SNAKE
DALEY, ALSO;' 'BEN WILLIS MUST GO-- WHEN?-- NOW;' 'WE ARE GOING TO THE
HOME OF THE SNAKE, THE SNAKE PIT IS DOWN THE STREET;' 'HEY, HEY, WHAT
DO YOU KNOW, BEN WILLIS MUST GO' AND 'HEY, HEY, WHAT DO YOU KNOW, MAYOR
DALEY MUST GO ALSO.'  THEY CARRIED SIGNS WHICH READ:  'DALEY FIRE
WILLIS;' 'DEFACTO, DESMACTO, IT IS STILL SEGREGATION;' 'BEN WILLIS MUST
GO-- NOW;' AND 'MAYOR DALEY, FIRE BEN WILLIS.'  THEY ALSO SANG THE
CIVIL RIGHTS SONGS, 'WE SHALL OVERCOME' AND 'WE SHALL NOT BE MOVED.' 

"THE POLICE ORDERED THE TAVERNS CLOSED DURING THE MARCH.  POLICE
FROM THE TASK FORCE, THE 9TH DISTRICT AND OTHER DISTRICTS SURROUNDED
THE BLOCK IN WHICH THE MAYOR'S HOME IS LOCATED.  THERE WERE ABOUT 10
OFFICERS AT EACH OF THE FOUR INTERSECTIONS AND ABOUT 10 OFFICERS SPREAD
ALONG EACH OF THE FOUR BLOCKS.  THE REST OF THE 100 POLICE OFFICERS
ASSIGNED TO THE MARCH ACCOMPANIED THE DEMONSTRATORS AS THEY MARCHED
AROUND THE BLOCK.  THE POLICE TRIED TO KEEP ALL SPECTATORS ACROSS THE
STREET FROM THE MARCHERS.  THEY WERE EQUIPPED WITH WALKIE-TALKIE RADIOS
TO RELAY REPORTS OF CONDITIONS TO EACH OTHER AND THEY HAD A BULLHORN
WITH WHICH THEY ADDRESSED THE SPECTATORS AND THE DEMONSTRATORS. 

"AS THE MARCHERS STARTED AROUND THE BLOCK THE FIRST TIME, THE
NEIGHBORS BEGAN COMING OUT OF THIER HOMES.  ON THE SECOND TIME AROUND
THE BLOCK SOME OF THE RESIDENTS HAD MOVED THEIR LAWN SPRINKLERS ONTO
THE SIDEWALK AND THE DEMONSTRATORS WENT INTO THE STREET JUST LONG
ENOUGH TO GET AROUND THE WATER.  ON THE THIRD TRIP AROUND THE BLOCK THE
WATER SPRINKLERS HAD BEEN REMOVED, PRESUMABLY BY ORDER OF THE POLICE. 
GREGORY HIMSELF TESTIFIED TO SEVERAL INSTANCES WHEN THE POLICE KEPT THE
CROWD THAT WAS ACCUMULATING FROM INTERFERING WITH THE MARCH.  'ONE OF
THE NEIGHBORHOOD PEOPLE STOOD IN FRONT OF THE LINE, AND WE JUST
STOPPED.  THIS INDIVIDUAL DIDN'T MOVE AND WE DIDN'T MOVE.  AFTER A FEW
MINUTES, THE OFFICER STANDING ON THE CORNER ASKED HIM TO MOVE AND HE
MOVED.'  HE SAID THAT ON THEIR FOURTH TRIP AROUND THE BLOCK (ABOUT 8:30
P.M.)  PEOPLE WERE YELLING OUT THE WINDOWS AND THE POLICE MADE
SPECTATORS IN DOOR WAYS CLOSE THE DOORS.  ABOUT 8:30 P.M. THE
DEMONSTRATORS QUIT THEIR SINGING AND CHANTING AND MARCHED QUIETLY. 
SHORTLY BEFORE 9:00 P.M.100 TO 150 SPECTATORS FORMED A LINE OF MARCH
AHEAD OF THE DEMONSTRATORS.  GREGORY SAID 'THE LIEUTENANT (HOUGESON)
ASKED ME IF I WOULD HOLD UP THE LINE UNTIL THEY GOT THOSE PEOPLE OUT OF
THE WAY.  I SAID, I WILL HOLD UP THE LINE, BUT THEY HAVE JUST AS MUCH
RIGHT TO MARCH PEACEFULLY AS WE HAVE.'  THE SPECTATORS WERE ORDERED TO
MOVE.  IN ORDER TO AVOID THE APPEARANCE THAT THE MARCHERS WERE
FOLLOWING THE 100 TO 150 SPECTATORS WHO HAD BEEN ORDERD TO MOVE,
GREGORY SAIN HIS GROUP MARCHED STRAIGHT SOUTH CROSSING 36TH STREET THUS
TAKING THEM ONE BLOCK SOUTH OF THE BLOCK WHICH THEY HAD BEEN MARCHING. 
THEY HAD TO STOP WHEN THEY CROSSED 36TH STREET WHILE THE POLICE OPENED
A PATHWAY THROUGH ABOUT 300 SPECTATORS THEY HAD CONFINED ON THE CORNER
ACROSS THE STREET. 

"SERGEANT GOLDEN TESTIFIED THAT BETWEEN 8:00 O'CLOCK AND 9:00
O'CLOCK THE CROWD INCREASED STEADILY TO A FEW HUNDRED, BUT THAT FROM
9:00 OCLOCK UNTIL ABOUT 9:20 O'CLOCK THE PEOPLE JUST SEEMED TO COME
FROM EVERYWHERE UNTIL IT REACHED BETWEEN 1,000 AND 1,200.  DURING THIS
TIME THE CROWD BECAME UNRULY.  THERE WAS SHOUTING AND THREATS.  'GOD
DAMNED NIGGER, GET THE HELL OUT OF HERE;' 'GET OUT OF HERE NIGGERS-- GO
BACK WHERE YOU BELONG OR WE WILL GET YOU OUT OF HERE' AND 'GET THE HELL
OUT OF HERE OR WE WILL BREAK YOUR BLANKETY-BLANK HEAD OPEN.'  CARS WERE
STOPPED IN THE STREETS WITH THEIR HORNS BLOWING.  THERE WERE KU KLUX
KLAN SIGNS AND THERE WAS SINGING OF THE ALABAMA TROOPER SONG.  CHILDREN
IN THE CROWD WERE PLAYING VARIOUS MUSICAL INSTRUMENTS SUCH AS A CYMBAL,
TRUMPET AND DRUM. 

"ROCKS AND EGGS WERE ALSO BEING THROWN AT THE MARCHERS FROM THE
CROWD.  THE POLICE WERE DODGING THE ROCKS AND EGGS AND ATTEMPTED TO
CATCH THE PERSONS WHO THREW THEM.  SERGEANT GOLDEN EXPLAINED THE
PROBLEM.  'YOU COULD SEE THESE TEEN-AGERS BEHIND THE CROWD.  YOU COULD
SEE A BOIL OF ACTIVITY AND SOMETHING WOULD COME OVER OUR HEADS AND I OR
MY PARTNER WOULD GO DOWN TO TRY TO APPREHEND WHO WAS DOING IT.  YOU
COULDN'T SEE WHO WAS DOING IT.  THEY WOULD VANISH INTO THE CROWD.'  HE
FURTHER TESTIFIED THAT ABOUT 9:25 P.M., 'THEY WERE SAYING, "LET'S GET
THEM," AND WITH THIS THEY WOULD STEP OFF THE CURB TO TRY TO CROSS 35TH
STREET AND WE WOULD PUSH THEM BACK WITH FORCE.  ONCE IN A WHILE
SOMEBODY WOULD RUN OUT, AND WE WOULD GRAB A HOLD OF THEM AND THROW THEM
BACK INTO THE CROWD.' 

"ABOUT 9:30 P.M. COMMANDER PIERSON TOLD GREGORY THE SITUATION WAS
DANGEROUS AND BECOMING RIOTOUS.  HE ASKED GREGORY IF HE WOULD CO
OPERATE AND LEAD THE MARCHERS OUT OF THE AREA.  THE REQUEST TO LEAVE
THE AREA WAS MADE ABOUT FIVE TIMES.  PIERSON THEN TOLD THE MARCHERS
THAT ANY OF THEM WHO WISHED TO LEAVE THE AREA WOULD BE GIVEN A POLICE
ESCORT.  THREE OF THE MARCHERS ACCEPTED THE PROPOSAL AND WERE ESCORTED
OUT OF THE AREA.  THE REMAINING DEMONSTRATORS WERE ARRESTED AND TAKEN
AWAY IN TWO POLICE VANS. 

"WHILE WE HAVE GONE INTO CONSIDERABLE DETAIL IN DESCRIBING THE
EVENTS LEADING TO THE ARREST OF DEFENDANTS, ONLY A COMPLETE READING OF
THE RECORD CAN GIVE ONE A TRUE PICTURE OF THE DILEMMA CONFRONTING THE
POLICE.  DURING THE ENTIRE MARCH FROM 4:30 P.M. UNTIL 9:30 P.M. THE
MARCHERS WERE ACCOMPANIED BY THEIR ATTORNEY WHO ADVISED THEM, AND THE
POLICE WERE ACCOMPANIED BY AN ASSISTANT CITY ATTORNEY WHO ADVISED
THEM.  IN SHORT THE RECORD SHOWS A DETERMINED EFFORT BY THE POLICE TO
ALLOW THE MARCHERS TO PEACEFULLY DEMONSTRATE AND AT THE SAME TIME
MAINTAIN ORDER." 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

TWO FACTORS IN THIS CASE RUN AFOUL OF WELL-ESTABLISHED
CONSTITUTIONAL PRINCIPLES, AND CLEARLY CALL FOR REVERSAL.  THESE ARE
THE AMBULATORY SWEEP OF THE CHICAGO DISORDERLY CONDUCT ORDINANCE, SEE,
E.G., CANTWELL V. CONNECTICUT, 310 U.S. 296 (1940), AND GARNER V.
LOUISIANA, 368 U.S. 157, 186 (1961) (HARLAN, J., CONCURRING IN
JUDGMENT), AND THE POSSIBILITY THAT AS THE CASE WENT TO THE JURY THE
CONVICTION MAY HAVE RESTED ON A CONSTITUTIONALLY IMPERMISSIBLE GROUND. 
SEE STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931). 

I AGREE WITH THE CONCURRING OPINION OF MY BROTHER BLACK ON BOTH OF
THESE SCORES, AND TO THAT EXTENT JOIN IN IT. 

MARSHALL PATNER ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WAS PAUL E. GOLDSTEIN. 

RAYMOND F. SIMON ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE MARVIN E. ASPEN AND HOWARD C. GOLDMAN. 
..END :
























CITIZEN PUBLISHING CO. V. U.S., 394 U.S. 131 


       CITIZEN PUBLISHING CO. ET AL. V. UNITED STATES. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF ARIZONA. 

        NO. 243.  ARGUED JANUARY 15, 1969.-- DECIDED MARCH 10,

           1969. 


IN 1940 THE ONLY TWO DAILY NEWSPAPERS IN TUCSON, THE CITIZEN, AN
EVENING PAPER, AND THE STAR, A DAILY AND SUNDAY PAPER, NEGOTIATED A
JOINT OPERATING AGREEMENT, WHICH WAS TO RUN FOR 25 YEARS.  PRIOR
THERETO THE PAPERS HAD BEEN VIGOROUS COMPETITORS.  THE AGREEMENT
PROVIDED THAT EACH PAPER WAS TO RETAIN ITS NEWS AND EDITORIAL
DEPARTMENTS AND CORPORATE IDENTITY, BUT THAT GENERALLY BUSINESS
OPERATIONS WERE TO BE INTEGRATED.  THREE TYPES OF CONTROLS WERE
IMPOSED:  (1) PRICE-FIXING-- PAPERS WERE TO BE DISTRIBUTED AND
ADVERTISING SOLD BY A JOINTLY HELD COMPANY, AND SUBSCRIPTION AND
ADVERTISING RATES WERE TO BE SET JOINTLY; (2) PROFIT POOLING-- ALL
PROFITS WERE TO BE POOLED AND DISTRIBUTED UNDER AN AGREED RATIO; AND
(3) MARKET CONTROL-- NEITHER PAPER NOR ANY OF THEIR STOCKHOLDERS OR
OFFICERS WERE TO ENGAGE IN ANY OTHER BUSINESS IN THE COUNTY IN CONFLICT
WITH THE AGREEMENT.  IN 1953 THE AGREEMENT WAS EXTENDED UNTIL 1990. 
COMBINED PROFITS BEFORE TAXES ROSE FROM $27,531 IN 1940 TO $1,727,217
IN 1964.  IN 1965 THE STAR'S STOCK WAS ACQUIRED BY CITIZEN'S
SHAREHOLDERS PURSUANT TO AN OPTION IN THE AGREEMENT, AND THE STAR IS
NOW PUBLISHED BY A COMPANY FORMED AS A VEHICLE FOR THE ACQUISITION. 
THE GOVERNMENT CHARGED APPELLANTS WITH UNREASONABLE RESTRAINT OF TRADE
IN VIOLATION OF SEC.1 OF THE SHERMAN ACT, MONOPOLIZATION IN VIOLATION
OF SEC. 2 OF THAT ACT, AND VIOLATION OF SEC. 7 OF THE CLAYTON ACT BY
THE ACQUISITION OF THE STAR STOCK.  THE DISTRICT COURT FOUND THAT THE
AGREEMENT CONTAINED PROVISIONS UNLAWFUL PER SE UNDER SEC.1 OF THE
SHERMAN ACT AND GRANTED THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT. 
THE CASE WAS TRIED ON THE OTHER CHARGES AND THE COURT FOUND
MONOPOLIZATION OF THE NEWSPAPER BUSINESS IN TUCSON IN VIOLATION OF SEC.
2 OF THE ACT, AND HELD THAT, IN PIMA COUNTY, THE APPROPRIATE GEOGRAPHIC
MARKET, ACQUISITION OF THE STAR CAUSED A SUBSTANTIAL LESSENING OF
COMPETITION IN DAILY NEWSPAPER PUBLISHING IN VIOLATION OF SEC. 7 OF THE
CLAYTON ACT.  THE DECREE REQUIRES APPELLANTS TO SUBMIT A PLAN FOR
DIVESTITURE OF THE STAR AND ITS RE-ESTABLISHMENT AS AN INDEPENDENT
COMPETITOR AND TO MODIFY THE JOINT OPERATING AGREEMENT TO ELIMINATE
PRICE-FIXING, MARKET CONTROL, AND PROFIT-POOLING PROVISIONS.  HELD: 

1.  THE VIOLATIONS OF SEC. 1 OF THE SHERMAN ACT ARE PLAIN, AS PRICE
FIXING IS ILLEGAL PER SE, POOLING OF PROFITS PURSUANT TO AN INFLEXIBLE
RATIO REDUCES INCENTIVES TO COMPETE, AND THE AGREEMENT NOT TO ENGAGE IN
ANY OTHER PUBLISHING BUSINESS IN PIMA COUNTY IS A DIVISION OF FIELDS
PROSCRIBED BY THE ACT.  PP.135-136. 

2.  THE REQUIREMENTS OF THE FAILING COMPANY DOCTRINE WERE NOT MET. 
PP. 136-139. 

(A) THERE IS NO INDICATION THAT THE CITIZEN'S OWNERS WERE THINKING
OF LIQUIDATING THE COMPANY OR SELLING THE NEWSPAPER, AND THERE IS NO
EVIDENCE THAT THE AGREEMENT WAS THE LAST STRAW AT WHICH THE CITIZEN
GRASPED.  PP. 137-138. 

(B) THE FAILING COMPANY DOCTRINE CAN BE APPLIED ONLY IF IT IS
ESTABLISHED THAT THE ACQUIRING COMPANY IS THE ONLY AVAILABLE
PURCHASER.  P. 138. 

(C) THE PROSPECTS FOR THE FAILING COMPANY OF REORGANIZATION THROUGH
RECEIVERSHIP OR THROUGH CHAPTER X OR CHAPTER XI OF THE BANKRUPTCY ACT
WOULD HAVE TO BE DIM OR NONEXISTENT TO MAKE THE FAILING COMPANY
DOCTRINE APPLICABLE.  P. 138. 

(D) THE BURDEN OF PROVING THAT THE REQUIREMENTS OF THE DOCTRINE ARE
MET IS ON THOSE WHO SEEK REFUGE UNDER IT, AND THAT BURDEN HAS NOT BEEN
SATISFIED HERE.  PP. 138-139. 

3.  THE DECREE DEALS ONLY WITH PRIVATE RESTRAINTS ON BUSINESS
COMPETITION AND DOES NOT REGULATE NEWS GATHERING OR DISSEMINATION IN
DEROGATION OF FIRST AMENDMENT RIGHTS.  ASSOCIATED PRESS V. UNITED
STATES, 326 U.S. 1.  PP. 139-140. 

280 F.SUPP.  978, AFFIRMED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

TUCSON, ARIZONA, HAS ONLY TWO DAILY NEWSPAPERS OF GENERAL
CIRCULATION, THE STAR AND THE CITIZEN.  THE CITIZEN IS THE OLDEST,
HAVING BEEN FOUNDED BEFORE 1900, AND IS AN EVENING PAPER PUBLISHED SIX
TIMES A WEEK.  THE STAR, SLIGHTLY YOUNGER THAN THE CITIZEN, HAS A
SUNDAY AS WELL AS A DAILY ISSUE.  PRIOR TO 1940 THE TWO PAPERS
VIGOROUSLY COMPETED WITH EACH OTHER.  WHILE THEIR CIRCULATION WAS ABOUT
EQUAL, THE STAR SOLD 50% MORE ADVERTISING SPACE THAN THE CITIZEN AND
OPERATED AT A PROFIT, WHILE THE CITIZEN SUSTAINED LOSSES.  INDEED THE
STAR'S ANNUAL PROFITS AVERAGED ABOUT $25,825, WHILE THE CITIZEN'S
ANNUAL LOSSES AVERAGED ABOUT $23,550. 

IN 1936 THE STOCK OF THE CITIZEN WAS PURCHASED BY ONE SMALL AND ONE
JOHNSON FOR $100,000 AND THEY INVESTED AN ADDITIONAL $25,000 OF WORKING
CAPITAL.  THEY SOUGHT TO INTEREST OTHERS TO INVEST IN THE CITIZEN BUT
WERE NOT SUCCESSFUL.  SMALL INCREASED HIS INVESTMENT IN THE CITIZEN,
MOVED FROM CHICAGO TO TUCSON, AND WAS PREPARED TO FINANCE THE CITIZEN'S
LOSSES FOR AT LEASE AWHILE FROM HIS OWN RESOURCES.  IT DOES NOT APPEAR
THAT SMALL AND JOHNSON SOUGHT TO SELL THE CITIZEN; NOR WAS THE CITIZEN
ABOUT TO GO OUT OF BUSINESS.  THE OWNERS DID, HOWEVER, NEGOTIATE A
JOINT OPERATING AGREEMENT BETWEEN THE TWO PAPERS WHICH WAS TO RUN FOR
25 YEARS FROM MARCH 1940, A TERM THAT WAS EXTENDED IN 1953 UNTIL 1990. 
BY ITS TERMS THE AGREEMENT MAY BE CANCELED ONLY BY MUTUAL CONSENT OF
THE PARTIES. 

THE AGREEMENT PROVIDED THAT EACH PAPER SHOULD RETAIN ITS OWN NEWS
AND EDITORIAL DEPARTMENT, AS WELL AS ITS CORPORATE IDENTITY.  IT
PROVIDED FOR THE FORMATION OF TUCSON NEWSPAPERS, INC. (TNI), WHICH WAS
TO BE OWNED IN EQUAL SHARES BY THE STAR AND CITIZEN AND WHICH WAS TO
MANAGE ALL DEPARTMENTS OF THEIR BUSINESS EXCEPT THE NEWS AND EDITORIAL
UNITS.  THE PRODUCTION AND DISTRIBUTION EQUIPMENT OF EACH PAPER WAS
TRANSFERRED TO TNI.  THE LATTER HAD FIVE DIRECTORS-- TWO NAMED BY THE
STAR, TWO BY THE CITIZEN, AND THE FIFTH CHOSEN BY THE CITIZEN OUT OF
THREE NAMED BY THE STAR. 

THE PURPOSE OF THE AGREEMENT WAS TO END ANY BUSINESS OR COMMERCIAL
COMPETITION BETWEEN THE TWO PAPERS AND TO THAT END THREE TYPES OF
CONTROLS WERE IMPOSED.  FIRST WAS PRICE FIXING.  THE NEWSPAPERS WERE
SOLD AND DISTRIBUTED BY THE CIRCULATION DEPARTMENT OF TNI; COMMERCIAL
ADVERTISING PLACED IN BE PAPERS WAS SOLD ONLY BY THE ADVERTISING
DEPARTMENT OF TNI; THE SUBSCRIPTION AND ADVERTISING RATES WERE SET
JOINTLY.  SECOND WAS PROFIT POOLING.  ALL PROFITS REALIZED WERE POOLED
AND DISTRIBUTED TO THE STAR AND THE CITIZEN BY TNI PURSUANT TO AN
AGREED RATIO.  THIRD WAS A MARKET CONTROL.  IT WAS AGREED THAT NEITHER
THE STAR NOR THE CITIZEN NOR ANY OF THEIR STOCKHOLDERS, OFFICERS, AND
EXECUTIVES WOULD ENGAGE IN ANY OTHER BUSINESS IN PIMA COUNTY-- THE
METROPOLITAN AREA OF TUCSON-- IN CONFLICT WITH THE AGREEMENT.  THUS
COMPETING PUBLISHING OPERATIONS WERE FORECLOSED. 

ALL COMMERCIAL RIVALRY BETWEEN THE PAPERS CEASED.  COMBINED PROFITS
BEFORE TAXES ROSE FROM $27,531 IN 1940 TO $1,727,217 IN 1964. 

THE GOVERNMENT'S COMPLAINT CHARGED AN UNREASONABLE RESTRAINT OF
TRADE OR COMMERCE IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT, 26 STAT.
209, AS AMENDED, 15 U.S.C. 1, AND A MONOPOLY IN VIOLATION OF SEC. 2, 15
U.S.C. 2.  THE DISTRICT COURT, AFTER FINDING THAT THE JOINT OPERATING
AGREEMENT CONTAINED PROVISIONS WHICH WERE UNLAWFUL PER SE UNDER SEC.1,
GRANTED THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT. 

THE CASE WENT TO TRIAL ON THE SEC 2 CHARGE AND ALSO ON A CHARGE
BROUGHT UNDER SEC. 7 OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15
U.S.C. 18.  /1/  THE LATTER CHARGE AROSE OUT OF THE ACQUISITION OF THE
STOCK OF THE STAR BY THE SHAREHOLDERS OF THE CITIZEN PURSUANT TO AN
OPTION IN THE JOINT OPERATING AGREEMENT.  ARDEN PUBLISHING COMPANY WAS
FORMED AS THE VEHICLE OF ACQUISITION AND IT NOW PUBLISHES THE STAR. 

AT THE END OF THE TRIAL THE DISTRICT COURT FOUND THAT THE JOINT
OPERATING AGREEMENT IN PURPOSE AND EFFECT MONOPOLIZED THE ONLY
NEWSPAPER BUSINESS IN TUCSON IN VIOLATION OF SEC. 2 OF THE SHERMAN
ACT. 

AS RESPECTS THE CLAYTON ACT CHARGE THE DISTRICT COURT FOUND THAT IN
PIMA COUNTY, THE APPROPRIATE GEOGRAPHIC MARKET, THE CITIZEN'S
ACQUISITION OF THE STAR STOCK HAD THE EFFECT OF CONTINUING IN A MORE
PERMANENT FROM A SUBSTANTIAL LESSENING OF COMPETITION IN DAILY
NEWSPAPER PUBLISHING THAT IS CONDEMNED BY SEC. 7. 

THE DECREE DOES NOT PREVENT ALL FORMS OF JOINT OPERATION.  IT
REQUIRES, HOWEVER, APPELLANTS TO SUBMIT A PLAN FOR DIVESTITURE AND RE
ESTABLISHMENT OF THE STAR AS AN INDEPENDENT COMPETITOR AND FOR
MODIFICATION OF THE JOINT OPERATING AGREEMENT SO AS TO ELIMINATE THE
PRICE-FIXING, MARKET CONTROL, AND PROFIT-POOLING PROVISIONS.  280
F.SUPP.  978.  THE CASE IS HERE BY WAY OF APPEAL.  EXPEDITING ACT, SEC.
2, 32 STAT. 823, AS AMENDED, 15 U.S.C. 29. 

WE AFFIRM THE JUDGMENT.  THE SEC. 1 VIOLATIONS ARE PLAIN BEYOND
PERADVENTURE.  PRICE-FIXING IS ILLEGAL PER SE.  UNITED STATES V.
MASONITE CORP., 316 U.S. 265, 276.  POOLING OF PROFITS PURSUANT TO AN
INFLEXIBLE RATIO AT LEAST REDUCES INCENTIVES TO COMPETE FOR CIRCULATION
AND ADVERTISING REVENUES AND RUNS AFOUL OF THE SHERMAN ACT.  NORTHERN
SECURITIES CO.V. UNITED STATES, 193 U.S. 197, 328.  THE AGREEMENT NOT
TO ENGAGE IN ANY OTHER PUBLISHING BUSINESS IN PIMA COUNTY WAS A
DIVISION OF FIELDS ALSO BANNED BY THE ACT.  TIMKEN CO. V. UNITED
STATES, 341 U.S. 593.  THE JOINT OPERATING AGREEMENT EXPOSED THE
RESTRAINTS SO CLEARLY AND UNAMBIGUOUSLY AS TO JUSTIFY THE RATHER RARE
USE OF A SUMMARY JUDGMENT IN THE ANTI-TRUST FIELD.  SEE NORTHERN PAC.
R. CO. V. UNITED STATES, 356 U.S. 1, 5. 

THE ONLY REAL DEFENSE OF APPELLANTS WAS THE "FAILING COMPANY"
DEFENSE-- A JUDICIALLY CREATED DOCTRINE.  /2/  THE FACTS TENDERED WERE
EXCLUDED ON THE SEC. 1 CHARGE BUT WERE ADMITTED ON THE SEC. 2 CHARGE AS
WELL AS ON THE SEC. 7 CHARGE UNDER THE CLAYTON ACT.  SO WHETHER OR NOT
THE DISTRICT COURT WAS CORRECT IN EXCLUDING THE EVIDENCE UNDER THE SEC.
1 CHARGE, IT IS NOW BEFORE US; AND A CONSIDERATION OF IT MAKES PLAIN
THAT THE REQUIREMENTS OF THE FAILING COMPANY DOCTRINE WERE NOT MET. 
THAT DEFENSE WAS BEFORE THE COURT IN INTERNATIONAL SHOE CO. V. FTC, 280
U.S. 291, WHERE SEC. 7 OF THE CLAYTON ACT WAS IN ISSUE.  /2/  THE
EVIDENCE SHOWED THAT THE RESOURCES OF ONE COMPANY WERE SO DEPLETED AND
THE PROSPECT OF REHABILITATION SO REMOTE THAT "IT FACED THE GRAVE
PROBABILITY OF A BUSINESS FAILURE."  280 U.S.,AT 302.  THERE WAS,
MOREOVER, "NO OTHER PROSPECTIVE PURCHASER."  IBID.  IT WAS IN THAT
SETTING THAT THE COURT HELD THAT THE ACQUISITION OF THAT COMPANY BY
ANOTHER DID NOT SUBSTANTIALLY LESSEN COMPETITION WITHIN THE MEANING OF
SEC. 7.  280 U.S.,AT 302-303. 

IN THE PRESENT CASE THE DISTRICT COURT FOUND: 

"AT THE TIME STAR PUBLISHING AND CITIZEN PUBLISHING ENTERED INTO THE
OPERATING AGREEMENT, AND AT THE TIME THE AGREEMENT BECAME EFFECTIVE,
CITIZEN PUBLISHING WAS NOT THEN ON THE VERGE OF GOING OUT OF BUSINESS,
NOR WAS THERE A SERIOUS PROBABILITY AT THAT TIME THAT CITIZEN
PUBLISHING WOULD TERMINATE ITS BUSINESS AND LIQUIDATE ITS ASSETS UNLESS
STAR PUBLISHING AND CITIZEN PUBLISHING ENTERED INTO THE OPERATING
AGREEMENT."  280 F.SUPP.,AT 980. 

THE EVIDENCE SUSTAINS THAT FINDING.  THERE IS NO INDICATION THAT THE
OWNERS OF THE CITIZEN WERE CONTEMPLATING A LIQUIDATION.  THEY NEVER
SOUGHT TO SELL THE CITIZEN AND THERE IS NO EVIDENCE THAT THE JOINT
OPERATING AGREEMENT WAS THE LAST STRAW AT WHICH THE CITIZEN GRASPED. 
INDEED THE CITIZEN CONTINUED TO BE A SIGNIFICANT THREAT TO THE STAR. 
HOW OTHERWISE IS ONE TO EXPLAIN THE STAR'S WILLINGNESS TO ENTER INTO AN
AGREEMENT TO SHARE ITS PROFITS WITH THE CITIZEN?  WOULD THAT BE TRUE IF
AS NOW CLAIMED THE CITIZEN WAS ON THE BRINK OF COLLAPSE? 

THE FAILING COMPANY DOCTRINE PLAINLY CANNOT BE APPLIED IN A MERGER
OR IN ANY OTHER CASE UNLESS IT IS ESTABLISHED THAT THE COMPANY THAT
ACQUIRES THE FAILING COMPANY OR BRINGS IT UNDER DOMINION IS THE ONLY
AVAILABLE PURCHASER.  FOR IF ANOTHER PERSON OR GROUP COULD BE
INTERESTED, A UNIT IN THE COMPETITIVE SYSTEM WOULD BE PRESERVED AND NOT
LOST TO MONOPOLY POWER.  SO EVEN IF WE ASSUME, ARGUENDO, THAT IN 1940
THE THEN OWNERS OF THE CITIZEN COULD NOT LONG KEEP THE ENTERPRISE
AFLOAT, NO EFFORT WAS MADE TO SELL THE CITIZEN; ITS PROPERTIES AND
FRANCHISE WERE NOT PUT IN THE HANDS OF A BROKER; AND THE RECORD IS
SILENT ON WHAT THE MARKET, IF ANY, FOR THE CITIZEN MIGHT HAVE BEEN. 
CF. UNITED STATES V. DIEBOLD, INC., 369 U.S. 654, 655. 

MOREOVER, WE KNOW FROM THE BROAD EXPERIENCE OF THE BUSINESS
COMMUNITY SINCE 1930, THE YEAR WHEN THE INTERNATIONAL SHOE CASE WAS
DECIDED, THAT COMPANIES REORGANIZED THROUGH RECEIVERSHIP, OR THROUGH
CHAPTER X OR CHAPTER XI OF THE BANKRUPTCY ACT OFTEN EMERGED AS STRONG
COMPETITIVE COMPANIES.  THE PROSPECTS OF REORGANIZATION OF THE CITIZEN
IN 1940 WOULD HAVE HAD TO BE DIM OR NONEXISTENT TO MAKE THE FAILING
COMPANY DOCTRINE APPLICABLE TO THIS CASE. 

THE BURDEN OF PROVING THAT THE CONDITIONS OF THE FAILING COMPANY
DOCTRINE /4/  HAVE BEEN SATISFIED IS ON THOSE WHO SEEK REFUGE UNDER IT.
THAT BURDEN HAS NOT BEEN SATISFIED IN THIS CASE. 

WE CONFINE THE FAILING COMPANY DOCTRINE TO ITS PRESENT NARROW
SCOPE. 

THE RESTRAINTS IMPOSED BY THESE PRIVATE ARRANGEMENTS HAVE NO SUPPORT
FROM THE FIRST AMENDMENT AS ASSOCIATED PRESS V. UNITED STATES, 326 U.S.
1, 20, TEACHES. 

NEITHER NEWS GATHERING NOR NEWS DISSEMINATION IS BEING REGULATED BY
THE PRESENT DECREE.  IT DEALS ONLY WITH RESTRAINTS ON CERTAIN BUSINESS
OR COMMERCIAL PRACTICES.  THE RESTRAINTS ON COMPETITION WITH WHICH THE
PRESENT DECREE DEALS COMPORT NEITHER WITH THE ANTITRUST LAWS NOR WITH
THE FIRST AMENDMENT.  AS WE STATED IN THE ASSOCIATED PRESS CASE: 

"IT WOULD BE STRANGE INDEED . . . IF THE GRAVE CONCERN FOR FREEDOM
OF THE PRESS WHICH PROMPTED ADOPTION OF THE FIRST AMENDMENT SHOULD BE
READ AS A COMMAND THAT THE GOVERNMENT WAS WITHOUT POWER TO PROTECT THAT
FREEDOM.  THE FIRST AMENDMENT, FAR FROM PROVIDING AN ARGUMENT AGAINST
APPLICATION OF THE SHERMAN ACT, HERE PROVIDES POWERFUL REASONS TO THE
CONTRARY.  THAT AMENDMENT RESTS ON THE ASSUMPTION THAT THE WIDEST
POSSIBLE DISSEMINATION OF INFORMATION FROM DIVERSE AND ANTAGONISTIC
SOURCES IS ESSENTIAL TO THE WELFARE OF THE PUBLIC, THAT A FREE PRESS IS
A CONDITION OF A FREE SOCIETY.  SURELY A COMMAND THAT THE GOVERNMENT
ITSELF SHALL NOT IMPEDE THE FREE FLOW OF IDEAS DOES NOT AFFORD
NONGOVERNMENTAL COMBINATIONS A REFUGE IF THEY IMPOSE RESTRAINTS UPON
THAT CONSTITUTIONALLY GUARANTEED FREEDOM.  FREEDOM TO PUBLISH MEANS
FREEDOM FOR ALL AND NOT FOR SOME.  FREEDOM TO PUBLISH IS GUARANTEED BY
THE CONSTITUTION, BUT FREEDOM TO COMBINE TO KEEP OTHERS FROM PUBLISHING
IS NOT.  FREEDOM OF THE PRESS FROM GOVERNMENTAL INTERFERENCE UNDER THE
FIRST AMENDMENT DOES NOT SANCTION REPRESSION OF THAT FREEDOM BY PRIVATE
INTERESTS.  THE FIRST AMENDMENT AFFORDS NOT THE SLIGHTEST SUPPORT FOR
THE CONTENTION THAT A COMBINATION TO RESTRAIN TRADE IN NEWS AND VIEWS
HAS ANY CONSTITUTIONAL IMMUNITY."  326 U.S.,AT 20. 

THE OTHER POINTS MENTIONED ARE TOO TRIVIAL FOR DISCUSSION. 
DIVESTITURE OF THE STAR SEEMS TO US QUITE PROPER.  AT LEAST THERE IS NO
SHOWING OF THAT ABUSE OF DISCRETION WHICH AUTHORIZES US TO RECAST THE
DECREE.  SEE UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173,
185. 

          AFFIRMED. 

/1/  SECTION 7 PROVIDES IN PART: 

"(NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL .
. . OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE
OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH
ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY." 

/2/  SEE BOK, SECTION 7 OF THE CLAYTON ACT AND THE MERGING OF LAW
AND ECONOMICS, 74 HARV.L.REV.  226, 339 (1960); HALE & HALE, FAILING
FIRMS AND THE MERGER PROVISIONS OF THE ANTITRUST LAWS, 52 KY.L.J. 597,
607 (1964); CONNOR, SECTION 7 OF THE CLAYTON ACT: THE "FAILING COMPANY"
MYTH, 49 GEO.L.J. 84, 96 (1960). 

THE FAILING COMPANY DOCTRINE WAS HELD TO JUSTIFY MERGERS IN UNITED
STATES V. MARYLAND & VIRGINIA MILK PRODUCERS ASSN., 167 F.SUPP.  799,
AFF'D, 362 U.S. 458, AND IN UNION LEADER CORP. V. NEWSPAPERS OF NEW
ENGLAND, 284 F.2D 582. 

FOR CASES WHERE THE FAILING COMPANY DOCTRINE WAS NOT ALLOWED AS A
DEFENSE SEE UNITED STATES V. DIEBOLD, INC., 369 U.S. 654; UNITED STATES
V. EL PASO GAS CO., 376 U.S. 651; UNITED STATES V. VON'S GROCERY CO.,
384 U.S. 270; UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321, 372, N. 46; UNITED STATES V. THIRD NATIONAL BANK, 390 U.S. 171. 

/3/  IT SHOULD BE NOTED THAT AT THE TIME THE INTERNATIONAL SHOE CO.
CASE WAS DECIDED SEC. 7 OF THE CLAYTON ACT PROVIDED:  "(N) CORPORATION
. . . SHALL ACQUIRE . . . STOCK OR OTHER SHARE CAPITAL OF ANOTHER
CORPORATION . . . WHERE THE EFFECT OF SUCH ACQUISITION MAY BE TO
SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE CORPORATION WHOSE STOCK IS
SO ACQUIRED AND THE CORPORATION MAKING THE ACQUISITION . . . ." 
CONSEQUENTLY, WHERE THE ACQUIRED COMPANY WAS "SUCH AS TO NECESSITATE
LIQUIDATION," AND WHERE "THE PROSPECT FOR FUTURE COMPETITION . . .WAS
ENTIRELY ELIMINATED," IT MAY HAVE BEEN REASONABLE TO CONCLUDE THAT
THERE WAS NO MORE EXISTING COMPETITION BETWEEN THE COMPANIES TO BE
LESSENED BY ACQUISITION.  280 U.S.AT 294.  IN 1950, HOWEVER, SEC. 7 WAS
AMENDED TO MAKE THE MEASURE OF ANTICOMPETITIVE ACQUISITIONS THE EXTENT
TO WHICH THEY LESSENED COMPETITION "IN ANY LINE OF COMMERCE," RATHER
THAN THE EXTENT TO WHICH THEY LESSENED COMPETITION "BETWEEN" THE TWO
COMPANIES.     WE HAVE NO OCCASION, HOWEVER, TO DETERMINE WHAT CHANGES,
IF ANY, THAT AMENDMENT HAD ON THE FAILING COMPANY DOCTRINE. 

/4/  BILLS WERE INTRODUCED BOTH IN THE 90TH CONGRESS (S. 1312 BY
SENATOR HAYDEN AND H.R. 19123 BY MR. EDMONDSON) AND IN THE 91ST
CONGRESS (H.R. 279 BY MR. MATSUNAGA AND H.R. 5199 BY MR. JOHNSON) TO
EXEMPT FROM THE ANTITRUST LAWS JOINT OPERATING AGREEMENTS BETWEEN
NEWSPAPERS BECAUSE OF ECONOMIC DISTRESS.  EXTENSIVE HEARINGS WERE HELD
IN 1967 AND 1968.  SEE HEARINGS ON S. 1312 BEFORE THE SUBCOMMITTEE ON
ANTITRUST AND MONOPOLY OF THE SENATE COMMITTEE ON THE JUDICIARY, 90TH
CONG., 1ST SESS., PTS.  1-6; HEARINGS ON H.R. 19123 AND RELATED BILLS
BEFORE THE ANTITRUST SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 90TH CONG., 2D SESS., SER.  25.  THE HEARINGS REFLECT ALL
SHADES OF OPINION.  AS STATED BY THE HOUSE SUBCOMMITTEE: 

"THE ANTITRUST LAWS EMBODY CONCEPTS AND PRINCIPLES WHICH LONG HAVE
BEEN CONSIDERED TO BE THE BEDROCK OF OUR ECONOMIC INSTITUTIONS. 
PIECEMEAL EXEMPTIONS FROM THE ANTITRUST LAWS TO COPE WITH PROBLEMS OF
PARTICULAR INDUSTRIES HAVE BEEN GIVEN RELUCTANTLY AND ONLY AFTER THERE
HAS BEEN A CLEAR SHOWING OF OVERRIDING NEED."  HEARINGS, SUPRA, SER. 
25, P. 2.  SEE ROBERTS, ANTITRUST PROBLEMS IN THE NEWSPAPER INDUSTRY,
82 HARV.L.REV.  319, 344-352 (1968); FLYNN, ANTITRUST AND THE
NEWSPAPERS, A COMMENT ON S. 1312, 22 FAND.L.REV.  103 (1968). 

AS OF THIS DATE CONGRESS HAS TAKEN NO ACTION ON ANY OF THOSE BILLS. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

WHEN THE OWNERS OF THE CITIZEN AND THE STAR EMBARKED UPON THEIR
JOINT VENTURE IN 1940, THEY DID NOT BELIEVE THAT THEY WERE COMBINING
THEIR COMMERCIAL OPERATIONS FOR ALL TIME.  RATHER, THEIR CONTRACT
PROVIDED THAT THE VENTURE WOULD LAST FOR 25 YEARS AND THAT THE
RELATIONSHIP WOULD TERMINATE IN 1965 IF BOTH PARTIES AGREED TO GO THEIR
SEPARATE WAYS.  IT WAS ONLY IN 1953 THAT THE PARTIES AGREED THEY WOULD
NOT PERMIT THEIR CONTRACT TO EXPIRE IN 1965 BUT WOULD CONTINUE THEIR
RELATIONSHIP FOR ANOTHER QUARTER CENTURY BEYOND THE ORIGINAL
TERMINATION DATE. 

NEVERTHELESS, BOTH THE DEPARTMENT OF JUSTICE AND MY BRETHREN HAVE
DECIDED THAT THE CRUCIAL QUESTION IN THIS CASE IS WHETHER THE ORIGINAL
1940 TRANSACTION COULD BE JUSTIFIED ON "FAILING COMPANY" GROUNDS.  YET
REGARDLESS OF ONE'S VIEW OF THE 1940 TRANSACTION, THE FACT REMAINS THAT
IF THE PARTIES HAD NOT RENEWED THEIR AGREEMENT, FULL COMPETITION
BETWEEN THE TWO NEWSPAPERS WOULD HAVE BEEN RESTORED IN 1965 AND THE
JUSTICE DEPARTMENT WOULD NEVER HAVE BEGUN THE SHERMAN ACT BRANCH OF
THIS LAWSUIT.  IT WOULD APPEAR, THEN, THAT THE DECISIVE ISSUE IN THIS
CASE IS NOT THE VALIDITY OF THE ORIGINAL 1940 TRANSACTION BUT THE
PROPRIETY OF THE DECISION TAKEN IN 1953 IN WHICH THE TERM OF THE JOINT
VENTURE WAS EXTENDED BY A QUARTER CENTURY BEYOND ITS ORIGINAL
TERMINATION DATE. 

IN DEFENSE OF THE COURT'S APPROACH, ONE MAY ARGUE THAT IF THE 1940
AGREEMENT HAD PROVIDED THAT THE NEWSPAPERS' JOINT VENTURE WAS TO
CONTINUE INDEFINITELY, WE WOULD THEN HAVE BEEN REQUIRED TO DECIDE THIS
CASE ON THE BASIS OF THE SITUATION PREVAILING AT THE TIME OF THE
ORIGINAL TRANSACTION.  IN OTHER WORDS, IF THE AGREEMENT HAD BEEN ONLY
SLIGHTLY DIFFERENT IT IS ARGUABLE THAT WE WOULD HAVE HAD NO CHOICE BUT
TO TREAT THE TRANSACTION IN THE SAME WAY WE WOULD TREAT A TOTAL
CORPORATE MERGER.  HOWEVER THIS MAY BE, I DO NOT UNDERSTAND WHY THE
PARTIES' DECISION TO RETAIN THE ADVANTAGES OF FLEXIBILITY SHOULD NOT BE
DECISIVE FOR OUR PURPOSES.  IF BUSINESSMEN BELIEVE, AFTER CONSIDERING
ALL THE RELEVANT FACTORS, THAT FUTURE EVENTS MAY DEPRIVE THEIR EXISTING
ARRANGEMENTS OF UTILITY, THERE IS NO REASON WHY THE ANTITRUST LAWS
SHOULD NOT VIEW THE TRANSACTION IN A SIMILAR WAY. 

WHILE THE TRIAL COURT DID NOT ANALYZE THE CASE IN THE WAY WHICH I
HAVE SUGGESTED, IT MADE SUFFICIENT FACTUAL FINDINGS TO PERMIT AN
EVALUATION OF THE LEGALITY OF THE 1953 DECISION EXTENDING THE JOINT
VENTURE'S TERM.  THE COURT IN EFFECT FOUND THAT IN EACH YEAR BETWEEN
1940 AND 1953, EACH NEWSPAPER OPERATED AT A PROFIT.  MOREOVER, IN THE
DECADE PRECEDING 1953, THE JOINT VENTURE'S TOTAL PROFITS INCREASED WITH
EACH SUCCEEDING YEAR.  GIVEN THIS PATTERN OF INCREASING PROFITABILITY,
I WOULD HOLD THAT THE "FAILING COMPANY" DOCTRINE COULD NOT REASONABLY
PERMIT THE TWO NEWSPAPERS TO EXTEND THE TERM OF THE AGREEMENT IN 1953
AT A TIME WHEN IT WAS IMPOSSIBLE TO PREDICT WHETHER FULL COMPETITION
COULD BE RENEWED IN 1965. 

NOR CAN THE NEWSPAPERS APPROPRIATELY INVOKE THE "FAILING COMPANY"
DEFENSE TO JUSTIFY ANOTHER QUARTER CENTURY'S JOINT OPERATION ON THE
BASIS OF THE FINANCIAL SITUATION WHICH ACTUALLY EXISTED IN 1965.  FOR
THE TRIAL JUDGE FOUND THAT THE JOINT VENTURE'S PROFITS HAD CONTINUED
THEIR UPWARD SPIRAL WITH EACH YEAR, REACHING $1,727,217 IN 1964, AND
THAT BOTH THE NEWSPAPERS ARE NOW "IN SOUND FINANCIAL CONDITION."  280
F.SUPP.  978, 983.  MOREOVER, IN THE QUARTER CENTURY SINCE 1940, THE
NUMBER OF HOUSEHOLDS INTHE TUCSON AREA HAS ALMOST QUADRUPLED, SEE
GOVERNMENT'S EXHIBIT 55, APP. 452, AND TOTAL CIRCULATION OF THE STAR
AND THE CITIZEN HAS INCREASED PROPORTIONATELY.  SEE GOVERNMENT'S
EXHIBIT 49, APP. 448-450.  WHILE THE DISTRICT COURT FOUND IT
"IMPOSSIBLE TO PREDICT" HOW WELL THE TWO PAPERS COULD COMPETE WITHOUT
THEIR PRESENT AGREEMENT, 280 F.SUPP.,AT 993, I WOULD HOLD THAT THE
JOINT VENTURE'S PROFITABILITY REQUIRED THE COMPANIES TO MAKE A
CONSCIENTIOUS EFFORT TO OPERATE INDEPENDENTLY BEFORE THEY COULD
PROPERLY CONTEND THAT THEIR OPERATING AGREEMENT WAS A BUSINESS
NECESSITY. 

CONSEQUENTLY, ALTHOUGH I JOIN IN THE COURT'S JUDGMENT IN THIS CASE,
I FIND IT UNNECESSARY TO DEFINE THE CIRCUMSTANCES IN WHICH A DECLINING
NEWSPAPER MAY PROPERLY ACT TO ASSURE ITS FUTURE INDEPENDENCE AS A NEWS
MEDIUM BY ENTERING INTO A JOINT OPERATING AGREEMENT SIMILAR TO THE ONE
CHALLENGED HERE. 

MR. JUSTICE STEWART, DISSENTING. 

PRIOR DECISIONS OF THIS COURT HAVE MADE IT CLEAR THAT A FAILING
COMPANY CANNOT COMBINE WITH A COMPETITOR IF ITS INDEPENDENCE COULD BE
PRESERVED BY SALE TO AN OUTSIDER.  /1/  TODAY'S DECISION FOR THE FIRST
TIME LAYS DOWN THE BLANKET RULE THAT THE FAILING COMPANY DEFENSE IS
FORFEITED BY A COMPANY WHICH CANNOT SHOW THAT IT MADE SUBSTANTIAL
AFFIRMATIVE EFFORTS TO SELL TO A NONCOMPETITOR.  THAT PRECISE QUANTUM
AND QUALITY OF PROOF MAY BE A REASONABLE AND EFFECTIVE PROPHYLACTIC
STANDARD TO ENSURE THAT THE COMPANY COULD TRULY NOT HAVE BEEN SOLD. 
BUT PROOF OF UNSUCCESSFUL EFFORTS TO SELL THE COMPANY IS NOT, AS A
LOGICAL, EVIDENTIARY MATTER, THE ONLY POSSIBLE CONCLUSIVE PROOF THAT IT
WAS NOT MARKETABLE.  IN MANY CASES OTHER EVIDENCE MIGHT MAKE EQUALLY
CLEAR THAT ANY SUCH EFFORTS WOULD SURELY HAVE BEEN FRUITLESS.  THE
COURT'S NEW RULE, IN OTHER WORDS, HAS VALIDITY ONLY AS A STANDARD
IMPOSED ON FUTURE CONDUCT AND NOT AS AN UNREBUTTABLE EVIDENTIARY
PRESUMPTION WITH RESPECT TO PAST EVENTS.  THEREFORE, THE INFLEXIBLE
ENFORCEMENT OF THAT RULE SHOULD BE LIMITED TO THOSE WHO-- UNLIKE THE
APPELLANTS-- WERE ON NOTICE OF THEIR OBLIGATION TO BE ABLE TO PROVE
THAT THEY MADE TANGIBLE EFFORTS, HOWEVER FUTILE, TO FIND AN OUTSIDE
BUYER. 

IT CANNOT BE SAID THAT THE APPELLANTS IN THE DISTRICT COURT DID NOT
ADDUCE CONVINCING EVIDENCE THAT THE CITIZEN WAS FAILING SO WOEFULLY
THAT NO OUTSIDER WOULD HAVE CONSIDERED PURCHASING IT.  ON THE CONTRARY,
THEY INTRODUCED NOT ONLY SUBSTANTIAL EVIDENCE OF THE DIRE FINANCIAL
CONDITION OF THE CITIZEN /2/  AND OF THE NEWSPAPER INDUSTRY GENERALLY,
/3/ BUT ALSO SPECIFIC TESTIMONY BY EXPERTS THAT IN THE PREVAILING
BUSINESS CLIMATE THE CITIZEN COULD NOT POSSIBLY HAVE BEEN SOLD TO AN
OUTSIDER.  /4/  IN THE FACE OF SUCH AN OFFER OF PROOF, THIS COURT DOES
NOT FIND THAT THE COMPANY WAS, IN FACT, SALABLE.  IT AFFIRMS THE
JUDGMENT ONLY BECAUSE OF THE APPELLANTS' FAILURE TO PROVE THEIR DEFENSE
IN A PARTICULAR WAY-- A REQUIREMENT IMPOSED FOR THE FIRST TIME TODAY. 

THE DISTRICT JUDGE DID NOT RESOLVE THE CENTRAL FACTUAL ISSUE AGAINST
THE APPELLANTS.  HE MADE NO FINDING THAT THE COMPANY WAS SALABLE. 
INDEED, THE JUDGE REFUSED EVEN TO CONSIDER THE APPELLANTS' EVIDENCE IN
CONNECTION WITH THE ISSUES UNDER SEC.1 OF THE SHERMAN ACT.  WITH
RESPECT TO THE SEC. 1 COUNT, HE EXCLUDED THE EVIDENCE ALTOGETHER ON THE
ERRONEOUS GROUND THAT THE FAILING COMPANY DEFENSE WAS WHOLLY
UNAVAILABLE TO PARTICIPANTS IN THE KIND OF JOINT OPERATING AGREEMENT
INVOLVED IN THIS CASE.  AND WHILE HE ADMITTED THE EVIDENCE AT TRIAL ON
THE OTHER COUNTS, HE EXPLICITLY LIMITED ITS RELEVANCE TO THE QUESTION
OF THE BONA FIDES OF THE STAR OWNER'S BELIEF THAT HIS COMPANY WAS NOT
MONOPOLIZING THE MARKET.  IN VIEW OF THESE RULINGS AND THE ABSENCE OF
ANY PERTINENT FINDINGS, IT IS CLEAR THAT THE APPELLANTS HAVE NOT HAD
THEIR DAY IN COURT ON THE CRITICAL ISSUE IN THIS CASE. 

THE DISTRICT COURT DID FIND THAT 

"AT THE TIME THE AGREEMENT BECAME EFFECTIVE, CITIZEN PUBLISHING WAS
NOT THEN ON THE VERGE OF GOING OUT OF BUSINESS, NOR WAS THERE A SERIOUS
PROBABILITY AT THAT TIME THAT CITIZEN PUBLISHING WOULD TERMINATE ITS
BUSINESS AND LIQUIDATE ITS ASSETS UNLESS STAR PUBLISHING AND CITIZEN
PUBLISHING ENTERED INTO THE OPERATING AGREEMENT."  280 F.SUPP.  978,
980.  I DO NOT BELIEVE THIS FINDING SUPPORTS THE CONCLUSION THAT
CITIZEN WAS NOT A FAILING COMPANY, OR EVEN THAT THE DISTRICT COURT
THOUGHT IT WAS NOT A FAILING COMPANY.  EVERY OTHER MATERIAL FINDING OF
THE DISTRICT COURT WAS TO THE EFFECT THAT CITIZEN WAS DYING.  /5/ THE
ONLY SUBSIDIARY FINDING CONSISTENT WITH THE CONCLUSION THAT CITIZEN WAS
NOT THEN ON THE VERGE OF IMMEDIATE DEMISE WAS THAT SMALL, BY HIS OWN
ADMISSION, WAS "PREPARED TO FINANCE THE LOSSES OF CITIZEN PUBLISHING
FOR SOME LITTLE TIME THEREAFTER FROM RESOURCES AVAILABLE TO HIM OTHER
THAN THE EARNINGS OR ASSETS OF CITIZEN PUBLISHING."  ID., AT 980. 

AS STATED ABOVE, THE DISTRICT JUDGE MISTAKENLY THOUGHT THAT THE
FAILING COMPANY DEFENSE WAS UNAVAILABLE IN A CASE LIKE THIS UNDER SEC.
1 OF THE SHERMAN ACT.  BUT HE MADE CLEAR HIS VIEW THAT, IF THE FAILING
COMPANY DEFENSE HAD BEEN AVAILABLE-- AS IN A TOTAL MERGER, FOR EXAMPLE-
THAT DEFENSE WOULD HAVE PREVAILED: 

     MR. MACLAURY:  WELL, WOULD YOUR HONOR THEN THINK IF THEY HAD

  DISSOLVED STAR OR CITIZEN OR BOTH AND SIMPLY MERGED THEM ALL INTO

ONE COMPANY, THEN THE FAILING COMPANY DOCTRINE WOULD APPLY? 

        .          .          .          . 

     "THE COURT:  I THINK IF STAR ACQUIRED ALL OF CITIZEN'S ASSETS

AND GAVE STOCK TO THE OWNERS OF CITIZEN, IT PROBABLY WOULD.  I

  WOULD SAY THAT THE

GOVERNMENT WOULDN'T HAVE MUCH CHANCE IN THIS PARTICULAR CASE OF
ATTACKING THAT ACQUISITION." 

BECAUSE THE QUESTION WHETHER CITIZEN WAS A FAILING COMPANY HAS NOT
YET BEEN PROPERLY DETERMINED, I WOULD VACATE THE JUDGMENT AND REMAND
THE CASE TO THE DISTRICT COURT, SO THAT THIS DISPOSITIVE QUESTION MAY
BE FULLY CANVASSED. 

/1/  INTERNATIONAL SHOE CO. V. FTC, 280 U.S. 291; UNITED STATES V.
DIEBOLD, INC., 369 U.S. 654.  CF. UNITED STATES V. THIRD NATIONAL BANK,
390 U.S. 171, 190-192. 

/2/  SMALL WORKED AS PUBLISHER OF THE PAPER WITHOUT A SALARY.  YET
AS OF DECEMBER 31, 1939, CITIZEN PUBLISHING OWED APPROXIMATELY $79,000
TO ITS STOCKHOLDERS FOR ADVANCES OF WORKING CAPITAL; IT HAD CURRENT
LIABILITIES OF OVER $47,000, AS OPPOSED TO CURRENT ASSETS OF $16,525 IN
ACCOUNTS RECEIVABLE, $420 IN BANK DEPOSITS, AND $66 CASH ON HAND.  ITS
LIABILITIES EXCEEDED ITS ASSETS, EXCLUSIVE OF GOODWILL, BY SOME
$53,400. 

/3/  "THE PERIOD 1937 THROUGH 1943 CONSTITUTED THE MOST DISMAL ERA
IN 20TH CENTURY NEWSPAPERS SINCE 1909 OCCURRED DURING THOSE SEVEN
YEARS."  RAY, ECONOMIC FORCES AS FACTORS IN DAILY NEWSPAPER
CONCENTRATION, 29 JOURNALISM QUARTERLY 31, 34 (1952). 

/4/  NEWSPAPER BROKERS AND PUBLISHERS WHO TESTIFIED THAT THEY WERE
INTIMATELY FAMILIAR WITH THE NEWSPAPER INDUSTRY AND AWARE OF THE
SITUATIONS OF THE CITIZEN AND THE STAR, GAVE THEIR OPINIONS THAT THERE
WAS NO MARKET FOR THE CITIZEN UNLESS IT COULD SOMEHOW BE JOINED WITH
THE STAR.  E.G.: 

"MR. MANNO:  I DO NOT THINK THAT THE CITIZEN PUBLISHING COMPANY WAS
SALABLE IN 1940, EXCEPT ON WHAT I WOULD DESCRIBE AS A DISTRESS BASIS. 

"MR. MACLAURY:  WOULD IT HAVE BEEN SALABLE TO AN OUTSIDE PUBLISHER
WHO INTENDED TO, OR WHO WOULD HAVE HAD A REASONABLE EXPECTATION OF
OPERATING CITIZEN AT A PROFIT? 

"MR. MANNO:  NO, SIR, ITS POTENTIAL SALABILITY WOULD BE BASED ON THE
POSSIBILITY OF A PROSPECTIVE PURCHASER CONTEMPLATING THAT HE COULD
POSSIBLY BUY IT AND THEN GO INTO A MUTUAL PRODUCTION PLAN WITH THE
STAR, OR RESELL THE CITIZEN TO THE STAR AT A POTENTIAL PROFIT."  IT
DOES NOT APPEAR THAT ANY TESTIMONY TO THE CONTRARY WAS INTRODUCED BY
THE GOVERNMENT. 

/5/  SEE, E.G., THE FOLLOWING TWO SPECIFIC FINDINGS: 

"12.  FROM 1932 TO 1940, CITIZEN PUBLISHING OPERATED AT A
SUBSTANTIAL LOSS.  ITS LOSSES WERE DEFRAYED BY CONTRIBUTIONS MADE BY
ITS STOCKHOLDERS.  STAR PUBLISHING FROM 1932 TO 1940 OPERATED AT A
PROFIT. 

        . .          .          . 

"15.  FOR MANY YEARS PRIOR TO 1940, CITIZEN PUBLISHING HAD BEEN
UNABLE TO PAY A DIVIDEND.  PRIOR TO 1940, MR. SMALL, SR., RECEIVED NO
SALARY AND BY MARCH, 1940, CITIZEN PUBLISHING OWED DEBTS OF MORE THAN
$109,000.  OF THIS INDEBTEDNESS, ABOUT $79,000 WAS TO STOCKHOLDERS OF
CITIZEN PUBLISHING." 

RICHARD J. MACLAURY ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON
THE BRIEFS WERE FRANCIS N. MARSHALL, THOMAS J. KLITGAARD, JOHN L.
DONAHUE, JR., AND GEORGE READ CARLOCK.     DANIEL M. FRIEDMAN ARGUED
THE CAUSE FOR THE UNITED STATES.  ON THE BRIEF WERE ATTORNEY GENERAL
CLARK, SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
ZIMMERMAN, HOWARD E. SHAPIRO, CHARLES D. MAHAFFIE, JR., AND GERALD A.
CONNELL. 

BRIEFS OF AMICI CURIAE URGING REVERSAL WERE FILED BY ARTHUR B.
HANSON FOR THE AMERICAN NEWSPAPER PUBLISHERS ASSN., AND BY ROBERT L.
STERN FOR A NUMBER OF NEWSPAPER PUBLISHERS. 
..END :





















SHUTTLESWORTH V. BIRMINGHAM, 394 U.S. 147 


       SHUTTLESWORTH V. CITY OF BIRMINGHAM. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

        NO. 42.  ARGUED NOVEMBER 18, 1968.-- DECIDED MARCH 10,

1969. 


PETITIONER, A NEGRO MINISTER WHO HELPED LEAD 52 NEGROES IN AN ORDERLY
CIVIL RIGHTS MARCH IN BIRMINGHAM, ALA., IN 1963, WAS ARRESTED AND
CONVICTED FOR VIOLATING SEC. 1159 OF THE CITY'S GENERAL CODE, AN
ORDINANCE WHICH PROSCRIBES PARTICIPATING IN ANY PARADE OR PROCESSION ON
CITY STREETS OR PUBLIC WAYS WITHOUT FIRST OBTAINING A PERMIT FROM THE
CITY COMMISSION.  SECTION 1159 PERMITS THE COMMISSION TO REFUSE A
PARADE PERMIT IF ITS MEMBERS BELIEVE "THE PUBLIC WELFARE, PEACE,
SAFETY, HEALTH, DECENCY, GOOD ORDER, MORALS, OR CONVENIENCE REQUIRE
THAT IT BE REFUSED."  PETITIONER HAD PREVIOUSLY BEEN GIVEN TO
UNDERSTAND BY A MEMBER OF THE COMMISSION THAT UNDER NO CIRCUMSTANCES
WOULD PETITIONER AND HIS GROUP BE ALLOWED TO DEMONSTRATE IN
BIRMINGHAM.  THE ALABAMA COURT OF APPEALS REVERSED UNCONSTITUTIONALLY
IMPOSED AN "INVIDIOUS PRIOR RESTRAINT" WITHOUT ASCERTAINABLE STANDARDS
FOR THE GRANTING OF PERMITS, AND THAT THE ORDINANCE HAD BEEN
DISCRIMINATORILY ENFORCED.  HOWEVER, THE ALABAMA SUPREME COURT IN 1967
NARROWLY CONSTRUED SEC.1159 AS AN OBJECTIVE, EVEN-HANDED TRAFFIC
REGULATION WHICH DID NOT ALLOW THE COMMISSION UNLIMITED DISCRETION IN
GRANTING OR WITHHOLDING PERMITS, AND UPHELD PETITIONER'S CONVICTION. 
HELD: 

1.  A LAW SUBJECTING THE RIGHT OF FREE EXPRESSION IN PUBLICLY OWNED
PLACES TO THE PRIOR RESTRAINT OF A LICENSE, WITHOUT NARROW, OBJECTIVE,
AND DEFINITE STANDARDS IS UNCONSTITUTIONAL, AND A PERSON FACED WITH
SUCH A LAW MAY IGNORE IT AND EXERCISE HIS FIRST AMENDMENT RIGHTS.  PP.
150-151. 

2.  PICKETING AND PARADING MAY CONSTITUTE METHODS OF EXPRESSION
ENTITLED TO FIRST AMENDMENT PROTECTION, AND USE OF THE STREETS FOR THAT
PURPOSE, THOUGH SUBJECT TO REGULATION, MAY NOT BE WHOLLY DENIED.  P.
152. 

3.  SINCE THE TERMS OF SEC. 1159 GAVE THE COMMISSION UNBRIDLED
AUTHORITY TO ISSUE OR WITHHOLD PARADE PERMITS WITHOUT REFERENCE TO
LEGITIMATE REGULATION OF PUBLIC STREETS AND SIDEWALKS, THE ORDINANCE
WOULD BE, ABSENT A LIMITING CONSTRUCTION, UNCONSTITUTIONAL ON ITS
FACE.  PP.150-151, 153. 

4.  THE NARROW CONSTRUCTION THAT THE STATE SUPREME COURT PLACED UPON
SEC. 1159 IN 1967 DOES NOT NECESSARILY VALIDATE PETITIONER'S 1963
CONVICTION; THE TEST IS WHETHER THE ORDINANCE WAS ACTUALLY ADMINISTERED
"SO AS NOT TO DENY OR UNWARRANTEDLY ABRIDGE THE RIGHT OF ASSEMBLY AND
THE OPPORTUNITIES FOR THE COMMUNICATION OF THOUGH AND THE DISCUSSION OF
PUBLIC QUESTIONS IMMEMORIALLY ASSOCIATED WITH RESORT TO PUBLIC
PLACES."  COX V. NEW HAMPSHIRE, 312 U.S. 569, 574.  PP.153-155. 

5.  SINCE IN THIS CASE SEC. 1159 WAS ADMINISTERED IN ACCORDANCE WITH
ITS IMPERMISSIBLY BROAD LANGUAGE, SO AS TO "DENY OR UNWARRANTEDLY
ABRIDGE" THE FIRST AMENDMENT RIGHTS OF THE PETITIONER AND HIS
ORGANIZATION, THE PETITIONER'S CONVICTION MAY NOT STAND.  COX V. NEW
HAMPSHIRE, SUPRA, DISTINGUISHED.  PP. 155-159. 

281 ALA. 542, 206 SO.2D 348, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER STANDS CONVICTED FOR VIOLATING AN ORDINANCE OF
BIRMINGHAM, ALABAMA, MAKING IT AN OFFENSE TO PARTICIPATE IN ANY "PARADE
OR PROCESSION OR OTHER PUBLIC DEMONSTRATION" WITHOUT FIRST OBTAINING A
PERMIT FROM THE CITY COMMISSION.  THE QUESTION BEFORE US IS WHETHER
THAT CONVICTION CAN BE SQUARED WITH THE CONSTITUTION OF THE UNITED
STATES. 

ON THE AFTERNOON OF APRIL 12, GOOD FRIDAY, 1963, 52 PEOPLE, ALL
NEGROES, WERE LED OUT OF A BIRMINGHAM CHURCH BY THREE NEGRO MINISTERS,
ONE OF WHOM WAS THE PETITIONER, FRED L. SHUTTLESWORTH.  THEY WALKED IN
ORDERLY FASHION, TWO ABREAST FOR THE MOST PART, FOR FOUR BLOCKS.  THE
PURPOSE OF THEIR MARCH WAS TO PROTEST THE ALLEGED DENIAL OF CIVIL
RIGHTS TO NEGROES IN THE CITY OF BIRMINGHAM.  THE MARCHERS STAYED ON
THE SIDEWALKS EXCEPT AT STREET INTERSECTIONS, AND THEY DID NOT
INTERFERE WITH OTHER PEDESTRIANS.  NO AUTOMOBILES WERE OBSTRUCTED, NOR
WERE TRAFFIC SIGNALS DISOBEYED.  THE PETITIONER WAS WITH THE GROUP FOR
AT LEAST PART OF THIS TIME, WALKING ALONGSIDE THE OTHERS, AND ONCE
MOVING FROM THE FRONT TO THE REAR.  AS THE MARCHERS MOVED ALONG, A
CROWD OF SPECTATORS FELL IN BEHIND THEM AT A DISTANCE.  THE SPECTATORS
AT SOME POINTS SPILLED OUT INTO THE STREET, BUT THE STREET WAS NOT
BLOCKED AND VEHICLES WERE NOT OBSTRUCTED. 

AT THE END OF FOUR BLOCKS THE MARCHERS WERE STOPPED BY THE
BIRMINGHAM POLICE, AND WERE ARRESTED FOR VIOLATING SEC. 1159 OF THE
GENERAL CODE OF BIRMINGHAM.  THAT ORDINANCE READS AS FOLLOWS: 

     "IT SHALL BE UNLAWFUL TO ORGANIZE OR HOLD, OR TO ASSIST IN

  ORGANIZING OR HOLDING, OR TO TAKE PART OR PARTICIPATE IN, ANY

  PARADE OR PROCESSION OR OTHER PUBLIC DEMONSTRATION ON THE STREETS

  OR OTHER PUBLIC WAYS OF THE CITY, UNLESS A PERMIT THEREFOR HAS

BEEN SECURED FROM THE COMMISSION. 

     "TO SECURE SUCH PERMIT, WRITTEN APPLICATION SHALL BE MADE TO

  THE COMMISSION, SETTING FORTH THE PROBABLE NUMBER OF PERSONS,

  VEHICLES AND ANIMALS WHICH WILL BE ENGAGED IN SUCH PARADE,

  PROCESSION OR OTHER PUBLIC DEMONSTRATION, THE PURPOSE FOR WHICH

  IT IS TO BE HELD OR HAD, AND THE STREETS OR OTHER PUBLIC WAYS

  OVER, ALONG OR IN WHICH IT IS DESIRED TO HAVE OR HOLD SUCH

  PARADE, PROCESSION OR OTHER PUBLIC DEMONSTRATION.  THE COMMISSION

  SHALL GRANT A WRITTEN PERMIT FOR SUCH PARADE, PROCESSION OR OTHER

  PUBLIC DEMONSTRATION, PRESCRIBING THE STREETS OR OTHER PUBLIC

  WAYS WHICH MAY BE USED THEREFOR, UNLESS IN ITS JUDGMENT THE

  PUBLIC WELFARE, PEACE, SAFETY, HEALTH, DECENCY, GOOD ORDER,

  MORALS OR CONVENIENCE REQUIRE THAT IT BE REFUSED.  IT SHALL BE

  UNLAWFUL TO USE FOR SUCH PURPOSES ANY OTHER STREETS OR PUBLIC

WAYS THAN THOSE SET OUT IN SAID PERMIT. 

     "THE TWO PRECEDING PARAGRAPHS, HOWEVER, SHALL NOT APPLY TO
FUNERAL PROCESSIONS." 

THE PETITIONER WAS CONVICTED FOR VIOLATION OF SEC.1159 AND WAS
SENTENCED TO 90 DAYS' IMPRISONMENT AT HARD LABOR AND AN ADDITIONAL 48
DAYS AT HARD LABOR IN DEFAULT OF PAYMENT OF A $75 FINE AND $24 COSTS. 
THE ALABAMA COURT OF APPEALS REVERSED THE JUDGMENT OF CONVICTION,
HOLDING THE EVIDENCE WAS INSUFFICIENT "TO SHOW A PROCESSION WHICH WOULD
REQUIRE, UNDER THE TERMS OF SEC. 1159, THE GETTING OF A PERMIT," THAT
THE ORDINANCE HAD BEEN APPLIED IN A DISCRIMINATORY FASHION, AND THAT IT
WAS UNCONSTITUTIONAL IN IMPOSING AN "INVIDIOUS PRIOR RESTRAINT" WITHOUT
ASCERTAINABLE STANDARDS FOR THE GRANTING OF PERMITS.  43 ALA.APP.  68,
. . . , . . . , 180 SO.2D 114, 139, 127.  THE SUPREME COURT OF ALABAMA,
HOWEVER, GIVING THE LANGUAGE OF SEC. 1159 AN EXTRAORDINARILY NARROW
CONSTRUCTION, REVERSED THE JUDGMENT OF THE COURT OF APPEALS AND
REINSTATED THE CONVICTION.  281 ALA. 542, 206 SO.2D 348.  WE GRANTED
CERTIORARI TO CONSIDER THE PETITIONER'S CONSTITUTIONAL CLAIMS.  390
U.S. 1023. 

THERE CAN BE NO DOUBT THAT THE BIRMINGHAM ORDINANCE, AS IT WAS
WRITTEN, CONFERRED UPON THE CITY COMMISSION VIRTUALLY UNBRIDLED AND
ABSOLUTE POWER TO PROHIBIT ANY "PARADE," PROCESSION,"  /1/  OR
"DEMONSTRATION" ON THE CITY'S STREETS OR PUBLIC WAYS.  FOR IN DECIDING
WHETHER OR NOT TO WITHHOLD A PERMIT, THE MEMBERS OF THE COMMISSION WERE
TO BE GUIDED ONLY BY THEIR OWN IDEAS OF "PUBLIC WELFARE, PEACE, SAFETY,
HEALTH, DECENCY, GOOD ORDER, MORALS OR CONVENIENCE."  THIS ORDINANCE AS
IT WAS WRITTEN, THEREFORE, FELL SQUARELY WITHIN THE AMBIT OF THE MANY
DECISIONS OF THIS COURT OVER THE LAST 30 YEARS, HOLDING THAT A LAW
SUBJECTING THE EXERCISE OF FIRST AMENDMENT FREEDOMS TO THE PRIOR
RESTRAINT OF A LICENSE, WITHOUT NARROW, OBJECTIVE, AND DEFINITE
STANDARDS TO GUIDE THE LICENSING AUTHORITY, IS UNCONSTITUTIONAL.  /2/
"IT IS SETTLED BY A LONG LINE OF RECENT DECISIONS OF THIS COURT THAT AN
ORDINANCE WHICH, LIKE THIS ONE, MAKES THE PEACEFUL ENJOYMENT OF
FREEDOMS WHICH THE CONSTITUTION GUARANTEES CONTINGENT UPON THE
UNCONTROLLED WILL OF AN OFFICIAL-- AS BY REQUIRING A PERMIT OR LICENSE
WHICH MAY BE GRANTED OR WITHHELD IN THE DISCRETION OF SUCH OFFICIAL--
IS AN UNCONSTITUTIONAL CENSORSHIP OR PRIOR RESTRAINT UPON THE ENJOYMENT
OF THOSE FREEDOMS."  STAUB V. BAXLEY, 355 U.S. 313, 322.  AND OUR
DECISIONS HAVE MADE CLEAR THAT A PERSON FACED WITH SUCH AN
UNCONSTITUTIONAL LICENSING LAW MAY IGNORE IT AND ENGAGE WITH IMPUNITY
IN THE EXERCISE OF THE RIGHT OF FREE EXPRESSION FOR WHICH THE LAW
PURPORTS TO REQUIRE A LICENSE.  /3/  "THE CONSTITUTION CAN HARDLY BE
THOUGH TO DENY TO ONE SUBJECTED TO THE RESTRAINTS OF SUCH AN ORDINANCE
THE RIGHT TO ATTACK ITS CONSTITUTIONALITY, BECAUSE HE HAS NOT YIELDED
TO ITS DEMANDS."  JONES V. OPELIKA, 316 U.S. 584, 602 (STONE, C.J.,
DISSENTING), ADOPTED PER CURIAM ON REHEARING, 319 U.S. 103, 104. 

IT IS ARGUED, HOWEVER, THAT WHAT WAS INVOLVED HERE WAS NOT "PURE
SPEECH," BUT THE USE OF PUBLIC STREETS AND SIDEWALKS, OVER WHICH A
MUNICIPALITY MUST RIGHTFULLY EXERCISE A GREAT DEAL OF CONTROL IN THE
INTEREST OF TRAFFIC REGULATION AND PUBLIC SAFETY.  THAT, OF COURSE, IS
TRUE.  WE HAVE EMPHASIZED BEFORE THIS THAT "THE FIRST AND FOURTEENTH
AMENDMENTS (DO NOT) AFFORD THE SAME KIND OF FREEDOM TO THOSE WHO WOULD
COMMUNICATE IDEAS BY CONDUCT SUCH AS PATROLLING, MARCHING, AND
PICKETING ON STREETS AND HIGHWAYS, AS THESE AMENDMENTS AFFORD TO THOSE
WHO COMMUNICATE IDEAS BY PURE SPEECH."  COX V. LOUISIANA, 379 U.S. 536,
555.  "GOVERNMENTAL AUTHORITIES HAVE THE DUTY AND RESPONSIBILITY TO
KEEP THEIR STREETS OPEN AND AVAILABLE FOR MOVEMENT."  ID., AT 554-555. 

BUT OUR DECISIONS HAVE ALSO MADE CLEAR THAT PICKETING AND PARADING
MAY NONETHELESS CONSTITUTE METHODS OF EXPRESSION, ENTITLED TO FIRST
AMENDMENT PROTECTION.  COX V. LOUISIANA, SUPRA; EDWARDS V. SOUTH
CAROLINA, 372 U.S. 229; THORNHILL V. ALABAMA, 310 U.S. 88.  "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."  HAGUE V. C.I.O., 307 U.S. 496,
515-516 (OPINION OF MR. JUSTICE ROBERTS, JOINED BY MR. JUSTICE BLACK). 

ACCORDINGLY, "(ALTHOUGH THIS CORUT HAS RECOGNIZED THAT A STATUTE MAY
BE ENACTED WHICH PREVENTS SERIOUS INTERFERENCE WITH NORMAL USAGE OF
STREETS AND PARKS . . . WE 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."  KUNZ V. NEW YORK, 340 U.S. 290, 293-294.  SEE ALSO
SAIA V. NEW YORK, 334 U.S. 558; NIEMOTKO V. MARYLAND, 340 U.S. 268. 
EVEN WHEN THE USE OF ITS PUBLIC STREETS AND SIDEWALKS IS INVOLVED,
THEREFORE, A MUNICIPALITY MAY NOT EMPOWER ITS LICENSING OFFICIALS TO
ROAM ESSENTIALLY AT WILL, DISPENSING OR WITHHOLDING PERMISSION TO
SPEAK, ASSEMBLE, PICKET, OR PARADE, ACCORDING TO THEIR OWN OPINIONS
REGARDING THE POTENTIAL EFFECT OF THE ACTIVITY IN QUESTION ON THE
"WELFARE," "DECENCY," OR "MORALS" OF THE COMMUNITY. 

UNDERSTANDABLY, UNDER THESE SETTLED PRINCIPLES, THE ALABAMA COURT OF
APPEALS WAS UNABLE TO REACH ANY CONCLUSION OTHER THAN THAT SEC. 1159
WAS UNCONSTITUTIONAL.  THE TERMS OF THE BIRMINGHAM ORDINANCE CLEARLY
GAVE THE CITY COMMISSION EXTENSIVE AUTHORITY TO ISSUE OR REFUSE TO
ISSUE PARADE PERMITS ON THE BASIS OF BROAD CRITERIA ENTIRELY UNRELATED
TO LEGITIMATE MUNICIPAL REGULATION OF THE PUBLIC STREETS AND
SIDEWALKS. 

IT IS SAID, HOWEVER, THAT NO MATTER HOW CONSTITUTIONALLY INVALID THE
BIRMINGHAM ORDINANCE MAY HAVE BEEN AS IT WAS WRITTEN, NONETHELESS THE
AUTHORITATIVE CONSTRUCTION THAT HAS NOW BEEN GIVEN IT BY THE SUPREME
COURT OF ALABAMA HAS SO MODIFIED AND NARROWED ITS TERMS AS TO RENDER IT
CONSTITUTIONALLY ACCEPTABLE.  IT IS TRUE THAT IN AFFIRMING THE
PETITIONER'S CONVICTION IN THE PRESENT CASE, THE SUPREME COURT OF
ALABAMA PERFORMED A REMARKABLE JOB OF PLASTIC SURGERY UPON THE FACE OF
THE ORDINANCE.  THE COURT STATED THAT WHEN SEC. 1159 PROVIDED THAT THE
CITY COMMISSION COULD WITHHOLD A PERMIT WHENEVER "IN ITS JUDGMENT THE
PUBLIC WELFARE, PEACE, SAFETY, HEALTH, DECENCY, GOOD ORDER, MORALS OR
CONVENIENCE REQUIRE," THE ORDINANCE REALLY MEANT SOMETHING QUITE
DIFFERENT: 

"(WE DO NOT CONSTRUE THIS (LANGUAGE) AS VESTING IN THE COMMISSION AN
UNFETTERED DISCRETION IN GRANTING OR DENYING PERMITS, BUT, IN VIEW OF
THE PURPOSE OF THE ORDINANCE, ONE TO BE EXERCISED IN CONNECTION WITH
THE SAFETY, COMFORT AND CONVENIENCE IN THE USE OF THE STREETS BY THE
GENERAL PUBLIC . . . . THE MEMBERS OF THE COMMISSION MAY NOT ACT AS
CENSORS OF WHAT IS TO BE SAID OR DISPLAYED IN ANY PARADE . . . .

      .          .          .          . 

     " . . . (WE) DO NOT CONSTRUE SEC.1159 AS CONFERRING UPON THE

  'COMMISSION' OF THE CITY OF BIRMINGHAM THE RIGHT TO REFUSE AN

APPLICATION FOR A PERMIT TO CARRY ON A PARADE, PROCESSION OR

  OTHER PUBLIC DEMONSTRATION SOLELY ON THE GROUND THAT SUCH

  ACTIVITIES MIGHT TEND TO PROVOKE DISORDERLY CONDUCT . . . . 

      "WE ALSO HOLD THAT UNDER SEC. 1159 THE COMMISSION IS WITHOUT

  AUTHORITY TO ACT IN AN ARBITRARY MANNER OR WITH UNFETTERED

  DISCRETION IN REGARD TO THE ISSUANCE OF PERMITS.  ITS DISCRETION

  MUST BE EXERCISED WITH 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 STREETS AND SIDEWALKS MUST BE

  FOLLOWED.  APPLICATIONS FOR PERMITS TO PARADE MUST BE GRANTED IF,

  AFTER AN INVESTIGATION IT IS FOUND THAT THE CONVENIENCE OF THE

  PUBLIC IN THE USE OF THE STREETS OR SIDEWALKS WOULD NOT THEREBY

  BE UNDULY DISTURBED."  281 ALA.,AT 545-546, 206 SO.2D,AT

  350-352. 

IN TRANSFORMING SEC. 1159 INTO AN ORDINANCE AUTHORIZING NO MORE THAN
THE OBJECTIVE AND EVEN-HANDED REGULATION OF TRAFFIC ON BIRMINGHAM'S
STREETS AND PUBLIC WAYS, THE SUPREME COURT OF ALABAMA MADE A
COMMENDABLE EFFORT TO GIVE THE LEGISLATION "A FIELD OF OPERATION WITHIN
CONSTITUTIONAL LIMITS."  281 ALA.,AT 544, 206 SO.2D, AT 350.  WE MAY
ASSUME THAT THIS EXERCISE WAS SUCCESSFUL, AND THAT THE ORDINANCE AS NOW
AUTHORITATIVELY CONSTRUED WOULD PASS CONSTITUTIONAL MUSTER.  /4/  IT
DOES NOT FOLLOW, HOWEVER, THAT THE SEVERELY NARROWING CONSTRUCTION PUT
UPON THE ORDINANCE BY THE ALABAMA SUPREME COURT IN NOVEMBER OF 1967
NECESSARILY SERVES TO RESTORE CONSTITUTIONAL VALIDITY TO A CONVICTION
THAT OCCURRED IN 1963 UNDER THE ORDINANCE AS IT WAS WRITTEN.  THE
INQUIRY IN EVERY CASE MUST BE THAT STATED BY CHIEF JUSTICE HUGHES IN
COX V. NEW HAMPSHIRE, 312 U.S. 569-- WHETHER CONTROL OF THE USE OF THE
STREETS FOR A PARADE OR PROCESSION WAS, IN FACT, "EXERTED SO AS NOT TO
DENY OR UNWARRANTEDLY ABRIDGE THE RIGHT OF ASSEMBLY AND THE
OPPORTUNITIES FOR THE COMMUNICATION OF THOUGHT AND THE DISCUSSION OF
PUBLIC QUESTIONS IMMEMORIALLY ASSOCIATED WITH RESORT TO PUBLIC
PLACES."  ID., AT 574. 

IN COX THE COURT FOUND THAT CONTROL OF THE STREETS HAD NOT BEEN
EXERTED UNCONSTITUTIONALLY.  THERE THE COURT WAS DEALING WITH A PARADE
PERMIT STATUTE THAT WAS SILENT AS TO THE CRITERIA GOVERNING THE
GRANTING OF PERMITS.  IN AFFIRMING THE APPELLANTS' CONVICTIONS FOR
PARADING WITHOUT A PERMIT, THE NEW HAMPSHIRE SUPREME COURT HAD
CONSTRUED THE STATUTE TO REQUIRE THE ISSUANCE OF A PERMIT TO ANYBODY
WHO APPLIED, SUBJECT ONLY TO THE POWER OF THE LICENSING AUTHORITY TO
SPECIFY THE "TIME, PLACE AND MANNER" OF THE PARADE IN ORDER TO
ACCOMMODATE COMPETING DEMANDS FOR PUBLIC USE OF THE STREETS.  THIS
COURT ACCEPTED THE STATE COURT'S CHARACTERIZATION OF THE STATUTE, AND
ITS ASSURANCE THAT THE APPELLANTS "'HAD A RIGHT, UNDER THE ACT, TO A
LICENSE TO MARCH WHEN, WHERE AND AS THEY DID, IF AFTER A REQUIRED
INVESTIGATION IT WAS FOUND THAT THE CONVENIENCE OF THE PUBLIC IN THE
USE OF THE STREETS WOULD NOT THEREBY BE UNDULY DISTURBED, UPON SUCH
CONDITIONS OR CHANGES IN TIME, PLACE AND MANNER AS WOULD AVOID
DISTURBANCE.'"  312 U.S.,AT 576.  IN AFFIRMING THE NEW HAMPSHIRE
JUDGMENT, HOWEVER, THIS COURT WAS CAREFUL TO EMPHASIZE: 

     "THERE IS NO EVIDENCE THAT THE STATUTE HAS BEEN ADMINISTERED

  OTHERWISE THAN IN FAIR AND NONDISCRIMINATORY MANNER WHICH THE

  STATE COURT HAS CONSTRUED IT TO REQUIRE."  ID., AT 577. 

IN THE PRESENT CASE WE ARE CONFRONTED WITH QUITE A DIFFERENT
SITUATION.  IN APRIL OF 1963 THE ORDINANCE THAT WAS ON THE BOOKS IN
BIRMINGHAM CONTAINED LANGUAGE THAT AFFIRMATIVELY CONFERRED UPON THE
MEMBERS OF THE COMMISSION ABSOLUTE POWER TO REFUSE A PARADE PERMIT
WHENEVER THEY THOUGHT "THE PUBLIC WELFARE, PEACE, SAFETY, HEALTH,
DECENCY, GOOD ORDER, MORALS, OR CONVENIENCE REQUIRE THAT IT BE
REFUSED."  IT WOULD HAVE TAKEN EXTRAORDINARY CLAIRVOYANCE FOR ANYONE TO
PERCEIVE THAT THIS LANGUAGE MEANT WHAT THE SUPREME COURT OF ALABAMA WAS
DESTINED TO FIND THAT IT MEANT MORE THAN FOUR YEARS LATER; AND, WITH
FIRST AMENDMENT RIGHTS HANGING IN THE BALANCE, WE WOULD HESITATE LONG
BEFORE ASSUMING THAT EITHER THE MEMBERS OF THE COMMISSION OR THE
PETITIONER POSSESSED ANY SUCH CLAIRVOYANCE AT THE TIME OF THE GOOD
FRIDAY MARCH. 

BUT WE NEED NOT DEAL IN ASSUMPTIONS.  FOR, AS THE RESPONDENT IN THIS
CASE HAS REMINDED US, IN ASSESSING THE CONSTITUTIONAL CLAIMS OF THE
PETITIONER, "(IT IS LESS THAN REALISTIC TO IGNORE THE SURROUNDING
RELEVANT CIRCUMSTANCES.  THESE INCLUDE NOT ONLY FACTS DEVELOPED IN THE
RECORD IN THIS CASE, BUT ALSO THOSE SHOWN IN THE OPINIONS IN THE
RELATED CASE OF WALKER V. CITY OF BIRMINGHAM (1967), 388 U.S. 307 . . .
."  /5/  THE PETITIONER HERE WAS ONE OF THE PETITIONERS IN THE WALKER
CASE, IN WHICH, JUST TWO TERMS AGO, WER HAD BEFORE US A RECORD SHOWING
MANY OF THE "SURROUNDING RELEVANT CIRCUMSTANCES" OF THE GOOD FRIDAY
MARCH.  AS THE RESPONDENT SUGGESTS, WE MAY PROPERLY TAKE JUDICIAL
NOTICE OF THE RECORD IN THAT LITIGATION BETWEEN THE SAME PARTIES WHO
ARE NOW BEFORE US.  /6/ 

UNCONTRADICTED TESTIMONY WAS OFFERED IN WALKER TO SHOW THAT OVER A
WEEK BEFORE THE GOOD FRIDAY MARCH PETITIONER SHUTTLESWORTH SENT A
REPRESENTATIVE TO APPLY FOR A PARADE PERMIT.  SHE WENT TO THE CITY HALL
AND ASKED "TO SEE THE PERSON OR PERSONS IN CHARGE TO ISSUE PERMITS,
PERMITS FOR PARADING, PICKETING, AND DEMONSTRATING."  SHE WAS DIRECTED
TO COMMISSIONER CONNOR, WHO DENIED HER REQUEST IN NO UNCERTAIN TERMS. 
"HE SAID, 'NO, YOU WILL NOT GET A PERMIT IN BIRMINGHAM, ALABAMA TO
PICKET.  I WILL PICKET YOU OVER TO THE CITY JAIL,' AND HE REPEATED THAT
TWICE."  388 U.S.AT 317, N. 9, 325, 335, 339. 

TWO DAYS LATER PETITIONER SHUTTLESWORTH HIMSELF SENT A TELEGRAM TO
COMMISSIONER CONNOR REQUESTING, ON BEHALF OF HIS ORGANIZATION, A PERMIT
TO PICKET "AGAINST THE INJUSTICES OF SEGREGATION AND DISCRIMINATION." 
HIS REQUEST SPECIFIED THE SIDEWALKS WHERE THE PICKETING WOULD TAKE
PLACE, AND STATED THAT "THE NORMAL RULES OF PICKETING" WOULD BE
OBEYED.  IN REPLY, THE COMMISSIONER SENT A WIRE STATING THAT PERMITS
WERE THE RESPONSIBILITY OF THE ENTIRE COMMISSION RATHER THAN A SINGLE
COMMISSIONER, AND CLOSING WITH THE BLUNT ADMONITION:  "I INSIST THAT
YOU AND YOUR PEOPLE DO NOT START ANY PICKETING ON THE STREETS IN
BIRMINGHAM, ALABAMA."  ID., AT 318, N.10, 325, 335-336, 339-340.  /7/ 

THESE "SURROUNDING RELEVANT CIRCUMSTANCES" MAKE IT INDISPUTABLY
CLEAR, WE THINK, THAT IN APRIL OF 1963-- AT LEAST WITH RESPECT TO THIS
PETITIONER AND HIS ORGANIZATION /8/  -- THE CITY AUTHORITIES THOUGHT
THE ORDINANCE MEANT EXACTLY WHAT IT SAID.  THE PETITIONER WAS CLEARLY
GIVEN TO UNDERSTAND THAT UNDER NO CIRCUMSTANCES WOULD HE AND HIS GROUP
BE PERMITTED TO DEMONSTRATE IN BIRMINGHAM, NOT THAT A DEMONSTRATION
WOULD BE APPROVED IF A TIME AND PLACE WERE SELECTED THAT WOULD MINIMIZE
TRAFFIC PROBLEMS.  THERE IS NO INDICATION WHATEVER THAT THE AUTHORITIES
CONSIDERED THEMSELVES OBLIGATED-- AS THE ALABAMA SUPREME COURT MORE
THAN FOUR YEARS LATER SAID THAT THEY WERE-- TO ISSUE A PERMIT "IF,
AFTER AN INVESTIGATION (THEY) FOUND THAT THE CONVENIENCE OF THE PUBLIC
IN THE USE OF THE STREETS OR SIDEWALKS WOULD NOT THEREBY BE UNDULY
DISTURBED." 

THIS CASE, THEREFORE, IS A FAR CRY FROM COX V. NEW HAMPSHIRE, SUPRA,
WHERE IT COULD BE SAID THAT THERE WAS NOTHING TO SHOW "THAT THE STATUTE
HAS BEEN ADMINISTERED OTHERWISE THAN IN THE . . . MANNER WHICH THE
STATE COURT HAS CONSTRUED IT TO REQUIRE."  HERE, BY CONTRAST, IT IS
EVIDENT THAT THE ORDINANCE WAS ADMINISTERED SO AS, IN THE WORDS OF
CHIEF JUSTICE HUGHES, "TO DENY OR UNWARRANTEDLY ABRIDGE THE RIGHT OF
ASSEMBLY AND THE OPPORTUNITIES FOR THE COMMUNICATION OF THOUGHT . . .
IMMEMORIALLY ASSOCIATED WITH RESORT TO PUBLIC PLACES."  THE JUDGMENT IS

           REVERSED. 

/1/  EXCEPT FUNERAL PROCESSIONS. 

/2/  SEE LOVELL V. GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O, 307 U.S.
496; SCHNEIDER V. STATE, 308 U.S. 147, 163-165; CANTWELL V.
CONNECTICUT, 310 U.S. 296; LARGENT V. TEXAS, 318 U.S. 418; JONES V.
OPELIKA, 316 U.S. 584, 600 (STONE, C.J., DISSENTING), 611 (MURPHY, J.,
DISSENTING), VACATED AND PREVIOUS DISSENTING OPINIONS ADOPTED PER
CURIAM, 319 U.S. 103; MARSH V. ALABAMA, 326 U.S. 501; TUCKER V. TEXAS,
326 U.S. 517; SAIA V. NEW YORK, 334 U.S. 558; KUNZ V. NEW YORK, 340
U.S. 290; NIEMOTKO V. MARYLAND, 340 U.S. 268; JOSEPH BURSTYN, INC. V.
WILSON, 343 U.S. 495; GELLING V. TEXAS, 343 U.S. 960; SUPERIOR FILMS,
INC. V. DEPARTMENT OF EDUCATION, 346 U.S. 587; STAUB V. BAXLEY, 355
U.S. 313; COX V. LOUISIANA, 379 U.S. 536; INTERSTATE CIRCUIT, INC. V.
DALLAS, 390 U.S. 676. 

/3/  LOVELL V. GRIFFIN, 303 U.S.,AT 452-453; SCHNEIDER V. STATE, 308
U.S.,AT 159, 165; LARGENT V. TEXAS, 318 U.S.,AT 419, 422; JONES V.
OPELIKA, 316 U.S.,AT 602 (STONE, C.J., DISSENTING), ADOPTED PER CURIAM
ON REHEARING, 319 U.S.,AT 104; STAUB V. BAXLEY, 355 U.S.,AT 319;
FREEDMAN V. MARYLAND, 380 U.S. 51, 56-57. 

/4/  THE VALIDITY OF THIS ASSUMPTION WOULD DEPEND UPON, AMONG OTHER
THINGS, THE AVAILABILITY OF EXPEDITIOUS JUDICIAL REVIEW OF THE
COMMISSION'S REFUSAL OF A PERMIT.  CF. POULOS V. NEW HAMPSHIRE, 345
U.S. 395, 420 (FRANKFURTER, J., CONCURRING IN RESULT); FREEDMAN V.
MARYLAND, 380 U.S. 51.  SEE ALSO THE CONCURRING OPINION OF MR. JUSTICE
HARLAN, POST, P.159. 

/5/  BRIEF FOR RESPONDENT 1-2. 

/6/  NATIONAL FIRE INS. CO. V. THOMPSON, 281 U.S. 331, 336, AND
CASES CITED THEREIN. 

/7/  THE LEGAL AND CONSTITUTIONAL ISSUES INVOLVED IN THE WALKER CASE
WERE QUITE DIFFERENT FROM THOSE INVOLVED HERE.  THE COURT RECENTLY
SUMMARIZED THE WALKER DECISION AS FOLLOWS: "IN THAT CASE, THE COURT
HELD THAT DEMONSTRATORS WHO HAD PROCEEDED WITH THEIR PROTEST MARCH IN
FACE OF THE PROHIBITION OF AN INJUNCTIVE ORDER AGAINST SUCH A MARCH,
COULD NOT DEFEND CONTEMPT CHARGES BY ASSERTING THE UNCONSTITUTIONALITY
OF THE INJUNCTION.  THE PROPER PROCEDURE, IT WAS HELD, WAS TO SEEK
JUDICIAL REVIEW OF THE INJUNCTION AND NOT TO DISOBEY IT, NO MATTER HOW
WELL-FOUNDED THEIR DOUBTS MIGHT BE AS TO ITS VALIDITY."  CARROLL V.
PRESIDENT AND COMMISSIONERS OF PRINCESS ANNE, 393 U.S. 175, 179. 

/8/  IN WALKER THE PETITIONER MADE AN OFFER OF PROOF THAT PARADE
PERMITS HAD BEEN ISSUED TO OTHER GROUPS BY THE CITY CLERK AT THE
REQUEST OF THE TRAFFIC BUREAU OF THE POLICE DEPARTMENT.  388 U.S.,AT
325-326, 336, 340. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR.JUSTICE HARLAN, CONCURRING. 

THE ALABAMA SUPREME COURT'S OPINION MAKES IT CLEAR THAT IF
PETITIONER SHUTTLESWORTH HAD CARRIED HIS EFFORTS TO OBTAIN A PARADE
PERMIT TO THE HIGHEST STATE COURT, HE COULD HAVE REQUIRED THE CITY
AUTHORITIES TO GRANT PERMISSION FOR HIS MARCH, SO LONG AS HIS PROPOSALS
WERE CONSISTENT WITH BIRMINGHAM'S INTEREST IN TRAFFIC CONTROL.  THUS,
THE DIFFICULT QUESTION THIS CASE PRESENTS IS WHETHER THE FOURTEENTH
AMENDMENT EVER BARS A STATE FROM PUNISHING A CITIZEN FOR MARCHING
WITHOUT A PERMIT WHICH COULD HAVE BEEN PROCURED IF ALL AVAILABLE
REMEDIES HAD BEEN PURSUED. 

THE COURT ANSWERS THAT A CITIZEN IS ENTITLED TO RELY ON THE
STATUTORY CONSTRUCTION ADOPTED BY THE STATE OFFICIALS WHO ARE ON THE
FRONT LINE, ADMINISTERING THE PERMIT SCHEME.  IF THESE OFFICIALS
CONSTRUE A VAGUE STATUTE UNCONSTITUTIONALLY, THE CITIZEN MAY TAKE THEM
AT THEIR WORD, AND ACT ON THE ASSUMPTION THAT THE STATUTE IS VOID.  THE
COURT'S HOLDING SEEMS TO ME TO CARRY SEEDS OF MISCHIEF THAT MAY IMPAIR
THE CONCEDED ABILITY OF THE AUTHORITIES TO REGULATE THE USE OF PUBLIC
THOROUGHFARES IN THE INTERESTS OF ALL.  THE RIGHT TO IGNORE A PERMIT
REQUIREMENT SHOULD, IN MY VIEW, BE MADE TO TURN ON SOMETHING MORE
SUBSTANTIAL THAN A MINOR OFFICIAL'S VIEW OF HIS AUTHORITY UNDER THE
GOVERNING STATUTE. 

SIMPLY BECAUSE AN INFERIOR STATE OFFICIAL INDICATES HIS VIEW AS TO A
STATUTE'S SCOPE, IT DOES NOT FOLLOW THAT THE STATE'S JUDICIARY WILL
COME TO THE SAME CONCLUSION.  SITUATIONS DO EXIST, HOWEVER, IN WHICH
THERE CAN BE NO EFFECTIVE REVIEW OF THE DECISION OF AN INFERIOR STATE
OFFICIAL.  IN THE PRESENT CASE, FOR EXAMPLE, THE DECISION OF
COMMISSIONER CONNOR HAD THE PRACTICAL EFFECT OF THE DECISION OF A COURT
OF LAST RESORT.  ONE WEEK BEFORE THE GOOD FRIDAY MARCH, SHUTTLESWORTH
LEARNED FROM CONNOR THAT HE, AS COMMISSIONER OF PUBLIC SAFETY, WOULD
NOT ISSUE PARADE PERMITS, AND THAT THE MARCHERS WOULD HAVE TO APPLY TO
THE ENTIRE CITY COMMISSION.  /1/  BUT BIRMINGHAM'S ORDINANCES DID NOT
REQUIRE A PROMPT DECISION BY THE CITY COMMISSION.  /2/  NOR DID THE
STATE OF ALABAMA PROVIDE FOR A SPEEDY COURT REVIEW OF THE DENIAL OF A
PARADE PERMIT.  /3/ 

GIVEN THE ABSENCE OF SPEEDY PROCEDURES, THE REVEREND SHUTTLESWORTH
AND HIS ASSOCIATES WERE FACED WITH A SERIOUS DILEMMA WHEN THEY RECEIVED
THEIR NOTICE FROM MR. CONNOR.  IF THEY ATTEMPTED TO EXHAUST THE
ADMINISTRATIVE AND JUDICIAL REMEDIES PROVIDED BY ALABAMA LAW, IT WAS
ALMOST CERTAIN THAT NO EFFECTIVE RELIEF COULD BE OBTAINED BY GOOD
FRIDAY.  SINCE THE RIGHT TO ENGAGE IN PEACEFUL AND ORDERLY POLITICAL
DEMONSTRATIONS IS, UNDER APPROPRIATE CONDITIONS, A FUNDAMENTAL ASPECT
OF THE "LIBERTY" PROTECTED BY THE FOURTEENTH AMENDMENT, SEE STROMBERG
V. CALIFORNIA, 283 U.S. 359, 368-370 (1931); HAGUE V. C.I.O., 307 U.S.
496, 515-516 (1939) (OPINION OF ROBERTS, J.); GARNER V. LOUISIANA, 368
U.S. 157, 201-203 (1961) (OPINION OF HARLAN, J.), THE PETITIONER WAS
NOT OBLIGED TO INVOKE PROCEDURES WHICH COULD NOT GIVE HIM EFFECTIVE
RELIEF.  WITH FUNDAMENTAL RIGHTS AT STAKE, HE WAS ENTITLED TO ADOPT THE
MORE PROBABLE MEANING OF THE ORDINANCE AND ACT ON HIS BELIEF THAT THE
CITY'S PERMIT REGULATIONS WERE UNCONSTITUTIONAL.     IT MAY BE
SUGGESTED, HOWEVER, THAT SHUTTLESWORTH'S DILEMMA WAS OF HIS OWN
MAKING.  HE COULD HAVE REQUESTED A PERMIT MONTHS IN ADVANCE OF GOOD
FRIDAY, THEREBY ALLOWING ALABAMA'S ADMINISTRATIVE AND JUDICIAL
MACHINERY THE NECESSARY TIME TO OPERATE FULLY BEFORE THE DATE SET FOR
THE MARCH.  BUT SUCH A SUGGESTION IGNORES THE PRINCIPLE ESTABLISHED IN
FREEDMAN V. MARYLAND, 380 U.S. 51, 58-61 (1965), WHICH PROHIBITS THE
STATES FROM REQUIRING PERSONS TO INVOKE UNDULY CUMBERSOME AND TIME
CONSUMING PROCEDURES BEFORE THEY MAY EXERCISE THEIR CONSTITUTIONAL
RIGHT OF EXPRESSION.  FREEDMAN HOLDS THAT IF THE STATE IS TO PROTECT
THE PUBLIC FROM OBSCENE MOVIES, IT MUST AFFORD EXHIBITORS A SPEEDY
ADMINISTRATIVE OR JUDICIAL RIGHT OF REVIEW, LEST "THE VICTORIOUS
EXHIBITOR MIGHT FIND THE MOST PROPITIOUS OPPORTUNITY FOR EXHIBITION
(PASSED)."  ID., AT 61.  THE FREEDMAN PRINCIPLE IS APPLICABLE HERE. 
/4/  THE RIGHT TO ASSEMBLE PEACEABLY TO VOICE POLITICAL PROTEST IS AT
LEAST AS BASIC AS THE RIGHT TO EXHIBIT A MOTION PICTURE WHICH MAY HAVE
SOME AESTHETIC VALUE.  MOREOVER, SLOW-MOVING PROCEDURES HAVE A MUCH
MORE SEVERE IMPACT IN THE INSTANT CASE THAN THEY HAD IN FREEDMAN. 
THOUGH A MOVIE EXHIBITOR MIGHT SUFFER SOME FINANCIAL LOSS IF HE WERE
OBLIGED TO WAIT FOR A YEAR OR TWO WHILE THE ADMINISTRATIVE AND JUDICIAL
MILLS GROUND OUT A RESULT, IT IS NEVERTHELESS QUITE LIKELY THAT THE
PUBLIC WOULD ULTIMATELY SEE THE FILM.  IN CONTRAST, TIMING IS OF THE
ESSENCE IN POLITICS.  IT IS ALMOST IMPOSSIBLE TO PREDICT THE POLITICAL
FUTURE; AND WHEN AN EVENT OCCURS, IT IS OFTEN NECESSARY TO HAVE ONE'S
VOICE HEARD PROMPTLY, IF IT IS TO BE CONSIDERED AT ALL.  TO REQUIRE
SHUTTLESWORTH TO SUBMIT HIS PARADE PERMIT APPLICATION MONTHS IN ADVANCE
WOULD PLACE A SEVERE BURDEN UPON THE EXERCISE OF HIS CONSTITUTIONALLY
PROTECTED RIGHTS.  CF. WILLIAMS V. RHODES, 393 U.S. 23, 33 (1968). 

I DO NOT MEAN TO SUGGEST THAT A STATE OR CITY MAY NOT REASONABLY
REQUIRE THAT PARADE PERMIT APPLICATIONS BE SUBMITTED EARLY ENOUGH TO
ALLOW THE AUTHORITIES AND THE JUDICIARY TO DETERMINE WHETHER THE PARADE
PROPOSAL IS CONSISTENT WITH THE IMPORTANT INTERESTS RESPECTING THE USE
OF THE STREETS WHICH LOCAL AUTHORITY MAY LEGITIMATELY PROTECT.  BUT
SUCH APPLICATIONS MUST BE HANDLED ON AN EXPEDITED BASIS SO THAT RIGHTS
OF POLITICAL EXPRESSION WILL NOT BE LOST IN A MAZE OF CUMBERSOME AND
SLOW-MOVING PROCEDURES. 

NEITHER THE CITY OF BIRMINGHAM NOR THE STATE OF ALABAMA HAS
ESTABLISHED SUCH EXPEDITED PROCEDURES.  SEE NN. 2 AND 3, SUPRA.
INDEED, THE CITY'S PARADE ORDINANCE DOES NOT ESTABLISH ANY PROCEDURE AT
ALL TO GOVERN THE CONSIDERATION OF APPLICATIONS.  SECTION 1159 OF THE
CITY CODE DOES NOT STATE WHEN AN APPLICATION MUST BE SUBMITTED IF IT IS
TO BE CONSIDERED TIMELY.  THE ORDINANCE DOES NOT STATE HOW AN
APPLICATION IS TO BE SUBMITTED TO THE "CITY COMMISSION."  /5/  NOR HAVE
REGULATIONS BEEN PUBLISHED WHICH WOULD ANSWER THESE QUESTIONS.  /6/ 

IN THE ABSENCE OF ANY GUIDELINES, THE MOST THAT CAN FAIRLY BE ASKED
OF PETITIONER IS THAT HE MAKE A GOOD-FAITH EFFORT TO OBTAIN A PERMIT
FROM THE CITY AUTHORITIES.  SHUTTLESWORTH SO ACTED WHEN HE APPROACHED
THE CITY OFFICIAL MOST LIKELY TO HAVE THE AUTHORITY TO DEAL WITH PERMIT
APPLICATIONS IN AN EXPEDITED MANNER-- COMMISSIONER CONNOR WAS THE
MEMBER OF THE CITY COMMISSION IN CHARGE OF PUBLIC SAFETY.  IT WAS
CONNOR, NOT SHUTTLESWORTH, WHO BROKE OFF ALL DISCUSSIONS RELATING TO
THE ISSUANCE OF PERMITS.  AFTER THE COMMISSIONER DECLARED THAT HE
LACKED THE POWER TO ACT, IT WAS REASONABLE TO BELIEVE THAT NO PUBLIC
AUTHORITY WOULD ACT IN TIME.  SINCE NEITHER THE CITY NOR THE STATE
PROVIDED SUFFICIENTLY EXPEDITED PROCEDURES FOR THE CONSIDERATION OF
PARADE PERMITS, PETITIONER SHUTTLESWORTH CANNOT BE PUNISHED FOR THE
EXERCISE OF HIS CONSTITUTIONALLY PROTECTED RIGHT OF POLITICAL
EXPRESSION.  /7/ 

ON THIS BASIS I CONCUR IN THE REVERSAL OF THE JUDGMENT OF THE
ALABAMA SUPREME COURT. 

/1/  I AGREE WITH MY BROTHER STEWART THAT WE MAY PROPERLY TAKE
JUDICIAL NOTICE OF THE EVIDENCE OF RECORD IN WALKER V. BIRMINGHAM, 388
U.S. 307 (1967).  SEE 9 J.WIGMORE, EVIDENCE SEC. 2579, AT 570 (3D ED.
1940); BUTLER V. EATON, 141 U.S. 240 (1891); CRAEMER V. WASHINGTON, 168
U.S. 124 (1897).  THAT RECORD SHOWS THAT IN RESPONSE TO A REQUEST FOR
PERMISSION TO MARCH ON APRIL 5 AND 6, MR. CONNOR REPLIED BY TELEGRAM ON
APRIL 5: 

"UNDER THE PROVISIONS OF THE CITY CODE OF THE CITY OF BIRMINGHAM, A
PERMIT TO PICKET AS REQUESTED BY YOU CANNOT BE GRANTED BY ME
INDIVIDUALLY BUT IS THE RESPONSIBILITY ( ) OF THE ENTIRE COMMISSION.  I
INSIST THAT YOU AND YOUR PEOPLE DO NOT START ANY PICKETING ON THE
STREETS IN BIRMINGHAM, ALABAMA. 

"EUGENE 'BULL' CONNOR, COMMISSIONER OF PUBLIC SAFETY."  SEE WALKER
V. BIRMINGHAM, NO. 249, OCTOBER TERM, 1966, TRANSCRIPT OF RECORD 415. 
MR. CONNOR'S TELEGRAM WAS RECEIVED IN EVIDENCE AT TRIAL.  SEE
TRANSCRIPT, SUPRA, AT 350. 

I DO NOT, HOWEVER, FIND IT APPROPRIATE TO RELY UPON THE SLIGHTLY
EARLIER EPISODE DETAILED IN MY BROTHER STEWART'S OPINION, ANTE, AT 157,
AS THE TRIAL JUDGE RULED THE UNCONTRADICTED SUPPORTING TESTIMONY
INADMISSIBLE.  SEE TRANSCRIPT, SUPRA, AT 355. 

/2/  SECTION 1159 DOES NOT REQUIRE THE CITY COMMISSION TO ACT ON AN
APPLICATION WITHIN ANY FIXED AMOUNT OF TIME.  INDEED, BY THE TIME
CONNOR DEFINITIVELY DECLARED THAT HE COULD NOT ISSUE PARADE PERMITS, IT
IS NOT AT ALL CLEAR THAT PETITIONER COULD EVEN HAVE MADE A TIMELY
PERMIT APPLICATION TO THE CITY COMMISSION AT ITS ONLY REMAINING REGULAR
SESSION SET BEFORE THE SCHEDULED GOOD FRIDAY MARCH.  SEE GENERAL CITY
CODE OF BIRMINGHAM SEC. 21 (1944).  WHILE THE 1964 CITY CODE MAKES IT
CLEAR THAT PETITIONER'S PERMIT APPLICATION WOULD HAVE BEEN CONSIDERED
OUT OF TIME, SEE SEC. 2-10, THE 1944 CODE, WHICH WAS APPLICABLE IN
1963, IS NOT CLEAR ON THIS POINT. 

/3/  ALTHOUGH SHUTTLESWORTH COULD HAVE PETITIONED FOR A WRIT OF
MANDAMUS IN THE ALABAMA CIRCUIT COURT IF THE CITY COMMISSION DENIED HIS
APPLICATION, THAT STATE COURT IS NOT OBLIGED TO RENDER A DECISION
WITHIN ANY FIXED PERIOD OF TIME. 

/4/  NONE OF OUR PAST DECISIONS HAVE SQUARELY CONSIDERED WHETHER
PARADE LICENSES MUST BE HANDLED ON AN EXPEDITED BASIS.  IN COX V. NEW
HAMPSHIRE, 312 U.S. 569 (1941), THE QUESTION WAS NOT ARGUED.  IN POULOS
V. NEW HAMPSHIRE, 345 U.S. 395 (1953), POULOS' REQUEST FOR A PERMIT TO
CONDUCT RELIGIOUS SERVICES IN A PUBLIC PARK WAS REFUSED BY THE
PORTSMOUTH CITY COUNCIL SEVEN AND ONE-HALF WEEKS BEFORE THE FIRST
SCHEDULED EVENT.  SINCE THE TIME REMAINING WAS SUFFICIENT TO OBTAIN
RELIEF BY WAY OF MANDAMUS, SEE 345 U.S.,AT 419-420 (OPINION OF MR.
JUSTICE FRANKFURTER), THERE WAS NO NEED TO CONSIDER WHETHER THE STATE
HAD A CONSTITUTIONAL OBLIGATION TO PROVIDE A MORE RAPID PROCEDURE. 
AND, OF COURSE, THOSE CASES WHICH STRUCK DOWN REGULATORY SCHEMES WHICH
PURPORTED TO ISSUE LICENSES ON THE BASIS OF UNCONSTITUTIONAL STANDARDS
DID NOT REACH THE QUESTION PRESENTED HERE.  SEE, E.G., LOVELL V.
GRIFFIN, 303 U.S. 444 (1938); SCHNEIDER V. STATE, 308 U.S. 147, 163-165
(1939); LARGENT V. TEXAS, 318 U.S. 418 (1943); STAUB V. BAXLEY, 355
U.S. 313 (1958). 

/5/  IT WOULD BE MOST REMARKABLE IF EVERY PARADE APPLICATION
INVOLVING THE MARCH OF 52 PERSONS IS CONSIDERED IN A PLENARY MANNER BY
THE PRINCIPAL GOVERNMENTAL BODY OF A CITY SO LARGE AS BIRMINGHAM.  IN
FACT, AN OFFER OF PROOF WAS MADE IN THE WALKER PROCEEDINGS THAT THE
CITY COMMISSION HAD NEVER PASSED ON PERMIT APPLICATIONS IN THE PAST,
BUT HAD DELEGATED THE TASK TO INFERIOR OFFICIALS.  SEE TRANSCRIPT,
SUPRA, N. 1, AT 290.  THE PROOF WAS NOT ADMITTED ON THE GROUND THAT IT
WAS IRRELEVANT.  IBID. 

/6/  AT THE TRIAL IN WALKER V. BIRMINGHAM, THE CITY CLERK, WHO KEPT
RECORDS OF THE PARADE PERMITS THAT HAD BEEN GRANTED, STATED THAT NO
REGULATIONS HAD BEEN ISSUED TO FILL IN THE GAPS LEFT BY THE ORDINANCE. 
SEE TRANSCRIPT, SUPRA, N. 1, AT 286. 

/7/  ID DO NOT REACH THE QUESTION WHETHER THE PRINCIPLE FOLLOWED IN
SUCH CASES AS LOVELL, SCHNEIDER, LARGENT, AND STAUB, SEE N. 4, SUPRA,
ALLOWING PERSONS TO IGNORE ENTIRELY LICENSING SCHEMES WHICH
UNCONSTITUTIONALLY IMPINGE ON OTHER FORMS OF FREE EXPRESSION, SHOULD BE
EXTENDED TO COVER "PARADE" PERMIT STATUTES INVOLVING, AS THEY DO, A
PARTICULARLY IMPORTANT STATE INTEREST. 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE JAMES M. NABRIT III, NORMAN C. AMAKER, CHARLES STEPHEN
RALSTON, MELVYN ZARR, ARTHUR D. SHORES, ORZELL BILLINGSLEY, JR., AND
ANTHONY G. AMSTERDAM. 

EARL MCBEE ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WERE J. M. BRECKENRIDGE AND WILLIAM C. WALKER. 
..END :









ALDERMAN V. UNITED STATES, 394 U.S. 165 


       ALDERMAN ET AL. V. UNITED STATES. 

        ON MOTION TO MODIFY ORDER OF REMAND TO THE UNITED STATES

    DISTRICT COURT FOR THE DISTRICT OF COLORADO. 

NO. 133, OCT. TERM, 1967.  CERTIORARI DENIED OCTOBER 9,

         1967.-- REHEARING AND CERTIORARI GRANTED AND CASE

           DECIDED JANUARY 29, 1968.-- MOTION TO MODIFY ARGUED MAY

           2, 1968.-- REARGUED OCTOBER 14, 1968.-- ORDER OF JANUARY

           29, 1968, WITHDRAWN, REHEARING AND CERTIORARI GRANTED,

           AND CASE DECIDED MARCH 10, 1969  /0/ 


AFTER PETITIONERS IN NO. 133, O.T., 1967, WERE CONVICTED OF
CONSPIRING TO TRANSMIT MURDEROUS THREATS IN INTERSTATE COMMERCE, THEY
DISCOVERED THAT ONE PETITIONER'S PLACE OF BUSINESS HAD BEEN SUBJECT TO
ELECTRONIC SURVEILLANCE BY THE GOVERNMENT.  THIS COURT REFUSED TO
ACCEPT THE GOVERNMENT'S EX PARTE DETERMINATION THAT "NO OVERHEARD
CONVERSATION IN WHICH ANY OF THE PETITIONERS PARTICIPATED IS ARGUABLY
RELEVANT TO THIS PROSECUTION," AND VACATED AND REMANDED THE CASE FOR
FURTHER PROCEEDINGS (390 U.S. 136).  THE GOVERNMENT MOVED TO MODIFY THE
ORDER, URGING THAT SURVEILLANCE RECORDS SHOULD BE SUBJECTED TO IN
CAMERA INSPECTION BY THE TRIAL JUDGE, WHO WOULD THEN TURN OVER TO
PETITIONERS ONLY THOSE MATERIALS ARGUABLY RELEVANT TO THEIR
PROSECUTION.  IN NOS. 11 AND 197 PETITIONERS, WHO WERE CONVICTED OF
NATIONAL SECURITY VIOLATIONS, RAISED SIMILAR QUESTIONS RELATING TO THE
USE OF EAVESDROPPED INFORMATION.  HELD: 

1.  SUPPRESSION OF THE PRODUCT OF A FOURTH AMENDMENT VIOLATION CAN
BE SUCCESSFULLY URGED ONLY BY THOSE WHOSE RIGHTS WERE VIOLATED BY THE
SEARCH ITSELF, AND NOT THOSE WHO ARE AGGRIEVED SOLELY BY THE
INTRODUCTION OF DAMAGING EVIDENCE.  THUS, CODEFENDANTS AND
COCONSPIRATORS HAVE NO SPECIAL STANDING AND CANNOT PREVENT THE
ADMISSION AGAINST THEM OF INFORMATION WHICH HAS BEEN OBTAINED THROUGH
ELECTRONIC SURVEILLANCE WHICH IS ILLEGAL AGAINST ANOTHER.  PP.171-176. 

2.  A PETITIONER WOULD BE ENTITLED TO THE SUPPRESSION OF EVIDENCE
VIOLATIVE OF THE FOURTH AMENDMENT WHERE THE GOVERNMENT UNLAWFULLY
OVERHEARD CONVERSATIONS OF THE PETITIONER HIMSELF, OR WHERE THE
CONVERSATIONS OCCURRED ON HIS PREMISES, WHETHER OR NOT HE WAS PRESENT
OR PARTICIPATED THEREIN.  SILVERMAN V. UNITED STATES, 365 U.S. 505, 511
512.  PP. 176-180. 

3.  IF THE SURVEILLANCE IS FOUND TO HAVE BEEN UNLAWFUL, AND IF A
PETITIONER IS FOUND TO HAVE STANDING, THE GOVERNMENT MUST DISCLOSE TO
HIM THE RECORDS OF THOSE OVERHEARD CONVERSATIONS WHICH THE GOVERNMENT
WAS NOT ENTITLED TO USE IN BUILDING ITS CASE AGAINST HIM.  PP.180-185. 

(A) THE TASK OF DETERMINING THOSE ITEMS WHICH MIGHT HAVE MADE A
SUBSTANTIAL CONTRIBUTION TO THE PREPARATION OF THE GOVERNMENT'S CASE IS
TOO COMPLEX AND THE MARGIN FOR ERROR TOO GREAT TO RELY SOLELY UPON THE
IN CAMERA EXAMINATION BY THE TRIAL COURT.  PP. 181-182. 

(B) THE TRIAL COURT SHOULD, WHERE APPROPRIATE, PLACE DEFENDANTS AND
THEIR COUNSEL UNDER ENFORCEABLE ORDERS AGAINST UNWARRANTED DISCLOSURE
OF THE MATERIALS THEY ARE ENTITLED TO INSPECT.  P. 185. 

(C) DEFENDANTS WILL NOT HAVE AN UNLIMITED LICENSE TO RUMMAGE IN THE
GOVERNMENT'S FILES, AS THEY MAY NEED OR BE ENTITLED TO NOTHING BEYOND
THE SPECIFIED RECORDS OF OVERHEARD CONVERSATIONS AND THE RIGHT TO CROSS
EXAMINE THE APPROPRIATE OFFICIALS REGARDING THE CONNECTION BETWEEN
THOSE RECORDS AND THE PROSECUTION'S CASE.  P. 185. 

NO. 133, O.T., 1967, ORDER OF JANUARY 29, 1968, WITHDRAWN, ORDER
DENYING CERTIORARI SET ASIDE, REHEARING AND CERTIORARI GRANTED, 371
F.2D 983, JUDGMENTS VACATED AND REMANDED; NOS. 11 AND 197, 384 F.2D
554, JUDGMENTS VACATED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

AFTER THE CONVICTIONS OF PETITIONERS HAD BEEN AFFIRMED, AND WHILE
THEIR CASES WERE PENDING HERE, IT WAS REVEALED THAT THE UNITED STATES
HAD ENGAGED IN ELECTRONIC SURVEILLANCE WHICH MIGHT HAVE VIOLATED THEIR
FOURTH AMENDMENT RIGHTS AND TAINTED THEIR CONVICTIONS.  A REMAND TO THE
DISTRICT COURT BEING NECESSARY IN EACH CASE FOR ADJUDICATION IN THE
FIRST INSTANCE, THE QUESTIONS NOW BEFORE US RELATE TO THE STANDARDS AND
PROCEDURES TO BE FOLLOWED BY THE DISTRICT COURT IN DETERMINING WHETHER
ANY OF THE GOVERNMENT'S EVIDENCE SUPPORTING THESE CONVICTIONS WAS THE
PRODUCT OF ILLEGAL SURVEILLANCE TO WHICH ANY OF THE PETITIONERS ARE
ENTITLED TO OBJECT. 

NO. 133, O.T., 1967.  PETITIONERS ALDERMAN AND ALDERISIO, ALONG WITH
RUBY KOLOD, NOW DECEASED, WERE CONVICTED OF CONSPIRING TO TRANSMIT
MURDEROUS THREATS IN INTERSTATE COMMERCE, 18 U.S.C. 371, 875(C).  THEIR
CONVICTIONS WERE AFFIRMED ON APPEAL, 371 F.2D 983 (C.A. 10TH CIR.
1967), AND THIS COURT DENIED CERTIORARI, 389 U.S. 834 (1967).  IN THEIR
PETITION FOR REHEARING, PETITIONERS ALLEGED THEY HAD RECENTLY
DISCOVERED THAT ALDERISIO'S PLACE OF BUSINESS IN CHICAGO HAD BEEN THE
SUBJECT OF ELECTRONIC SURVEILLANCE BY THE GOVERNMENT.  READING THE
RESPONSE OF THE GOVERNMENT TO ADMIT THAT ALDERISIO'S CONVERSATIONS HAD
BEEN OVERHEARD BY UNLAWFUL ELECTRONIC EAVESDROPPING, /1/  WE GRANTED
THE PETITION FOR REHEARING OVER THE OBJECTION OF THE UNITED STATES THAT
"NO OVERHEARD CONVERSATION IN WHICH ANY OF THE PETITIONERS PARTICIPATED
IS ARGUABLY RELEVANT TO THIS PROSECUTION."  IN OUR PER CURIAM OPINION,
390 U.S. 136 (1968), WE REFUSED TO ACCEPT THE EX PARTE DETERMINATION OF
RELEVANCE BY THE DEPARTMENT OF JUSTICE IN LIEU OF ADVERSARY PROCEEDINGS
IN THE DISTRICT COURT, VACATED THE JUDGMENT OF THE COURT OF APPEALS,
AND REMANDED THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS. 

THE UNITED STATES SUBSEQUENTLY FILED A MOTION TO MODIFY THAT ORDER. 
ALTHOUGH ACCEPTING THE COURT'S ORDER INSOFAR AS IT REQUIRED JUDICIAL
DETERMINATION OF WHETHER ANY OF THE PROSECUTION'S EVIDENCE WAS THE
PRODUCT OF ILLEGAL SURVEILLANCE, THE UNITED STATES URGED THAT IN ORDER
TO PROTECT INNOCENT THIRD PARTIES PARTICIPATING OR REFERRED TO IN
IRRELEVANT CONVERSATIONS OVERHEARD BY THE GOVERNMENT, SURVEILLANCE
RECORDS SHOULD FIRST BE SUBJECTED TO IN CAMERA INSPECTION BY THE TRIAL
JUDGE, WHO WOULD THEN TURN OVER TO THE PETITIONERS AND THEIR COUNSEL
ONLY THOSE MATERIALS ARGUABLY RELEVANT TO THEIR PROSECUTION. 
PETITIONERS OPPOSED THE MOTION, AND THE MATTER WAS ARGUED BEFORE THE
COURT LAST TERM.  WE THEN SET THE CASE DOWN FOR REARGUMENT AT THE
OPENING OF THE CURRENT TERM, 392 U.S. 919 (1968), THE ATTENTION OF THE
PARTIES BEING DIRECTED TO THE DISCLOSURE ISSUE AND THE QUESTION OF
STANDING TO OBJECT TO THE GOVERNMENT'S USE OF THE FRUITS OF ILLEGAL
SURVEILLANCE.  /2/ 

NOS. 11 AND 197.  BOTH PETITIONERS WERE CONVICTED OF CONSPIRING TO
TRANSMIT TO THE SOVIET UNION INFORMATION RELATING TO THE NATIONAL
DEFENSE OF THE UNITED STATES, 18 U.S.C. 794(A), (C), AND OF CONSPIRING
TO VIOLATE 18 U.S.C. 951 BY CAUSING BUTENKO TO ACT AS AN AGENT OF THE
SOVIET UNION WITHOUT PRIOR NOTIFICATION TO THE SECRETARY OF STATE. 
BUTENKO WAS ALSO CONVICTED OF A SUBSTANTIVE OFFENSE UNDER 18 U.S.C.
951.  THE COURT OF APPEALS AFFIRMED ALL BUT IVANOV'S CONVICTION ON THE
SECOND CONSPIRACY COUNT.  384 F.2D 554 (C.A. 3D CIR. 1967).  PETITIONS
FOR CERTIORARI WERE THEN FILED IN THIS COURT, AS WAS A SUBSEQUENT
MOTION TO AMEND THE IVANOV PETITION TO RAISE AN ISSUE SIMILAR TO THAT
WHICH WAS PRESENTED IN NO. 133, O.T. 1967.  /3/  FOLLOWING THE FIRST
ARGUMENT IN ALDERMAN (SUB NOM. KOLOD V. UNITED STATES), THE PETITIONS
FOR CERTIORARI OF BOTH IVANOV AND BUTENKO WERE GRANTED, LIMITED TO
QUESTIONS NEARLY IDENTICAL TO THOSE INVOLVED IN THE REARGUMENT OF THE
ALDERMAN CASE.  /4/

        I. 

THE EXCLUSIONARY RULE FASHIONED IN WEEKS V. UNITED STATES, 232 U.S.
383 (1914), AND MAPP V. OHIO, 367 U.S. 643 (1961), EXCLUDES FROM A
CRIMINAL TRIAL ANY EVIDENCE SEIZED FROM THE DEFENDANT IN VIOLATION OF
HIS FOURTH AMENDMENT RIGHTS.  FRUITS OF SUCH EVIDENCE ARE EXCLUDED AS
WELL.  SILVERTHORNE LUMBER CO. V. UNTIED STATES, 251 U.S. 385, 391-392
(1920).  BECAUSE THE AMENDMENT NOW AFFORDS PROTECTION AGAINST THE
UNINVITED EAR, ORAL STATEMENTS, IF ILLEGALLY OVERHEARD, AND THEIR
FRUITS ARE ALSO SUBJECT TO SUPPRESSION.  SILVERMAN V. UNITED STATES,
365 U.S. 505 (1961); KATZ V. UNITED STATES, 389 U.S. 347 (1967). 

IN MAPP AND WEEKS, THE DEFENDANT AGAINST WHOM THE EVIDENCE WAS HELD
TO BE INADMISSIBLE WAS THE VICTIM OF THE SEARCH.  HOWEVER, IN THE CASES
BEFORE US EACH PETITIONER DEMANDS RETRIAL IF ANY OF THE EVIDENCE USED
TO CONVICT HIM WAS THE PRODUCT OF UNAUTHORIZED SURVEILLANCE, REGARDLESS
OF WHOSE FOURTH AMENDMENT RIGHTS THE SURVEILLANCE VIOLATED.  AT THE
VERY LEAST, IT IS URGED THAT IF EVIDENCE IS INADMISSIBLE AGAINST ONE
DEFENDANT OR CONSPIRATOR, BECAUSE TAINTED BY ELECTRONIC SURVEILLANCE
ILLEGAL AS TO HIM, IT IS ALSO INADMISSIBLE AGAINST HIS CODEFENDANT OR
COCONSPIRATOR. 

THIS EXPANSIVE READING OF THE FOURTH AMENDMENT AND OF THE
EXCLUSIONARY RULE FASHIONED TO ENFORCE IT IS ADMITTEDLY INCONSISTENT
WITH PRIOR CASES, AND WE REJECT IT THE ESTABLISHED PRINCIPLE IS THAT
SUPPRESSION OF THE PRODUCT OF A FOURTH AMENDMENT VIOLATION CAN BE
SUCCESSFULLY URGED ONLY BY THOSE WHOSE RIGHTS WERE VIOLATED BY THE
SEARCH ITSELF, NOT BY THOSE WHO ARE AGGRIEVED SOLELY BY THE
INTRODUCTION OF DAMAGING EVIDENCE.  COCONSPIRATORS AND CODEFENDANTS
HAVE BEEN ACCORDED NO SPECIAL STANDING. 

THUS IN GOLDSTEIN V. UNITED STATES, 316 U.S. 114 (1942), TESTIMONY
INDUCED BY DISCLOSING TO WITNESSES THEIR OWN TELEPHONIC COMMUNICATIONS
INTERCEPTED BY THE GOVERNMENT CONTRARY TO 47 U.S.C. 605 WAS HELD
ADMISSIBLE AGAINST THEIR COCONSPIRATORS.  THE COURT EQUATED THE RULE
UNDER SEC. 605 WITH THE EXCLUSIONARY RULE UNDER THE FOURTH AMENDMENT. 
/5/  WONG SUN V. UNITED STATES, 371 U.S. 471 (1963), CAME TO LIKE
CONCLUSIONS.  THERE, TWO DEFENDANTS WERE TRIED TOGETHER; NARCOTICS
SEIZED FROM A THIRD PARTY WERE HELD INADMISSIBLE AGAINST ONE DEFENDANT
BECAUSE THEY WERE THE PRODUCT OF STATEMENTS MADE BY HIM AT THE TIME OF
HIS UNLAWFUL ARREST.  BUT THE SAME NARCOTICS WERE FOUND TO BE
ADMISSIBLE AGAINST THE CODEFENDANT BECAUSE "(THE SEIZURE OF THIS HEROIN
INVADED NO RIGHT OF PRIVACY OF PERSON OR PREMISES WHICH WOULD ENTITLE
(HIM) TO OBJECT TO ITS USE AT HIS TRIAL.  CF. GOLDSTEIN V. UNITED
STATES, 316 U.S. 114."  WONG SUN V. UNITED STATES, SUPRA, AT 492. 

THE RULE IS STATED IN JONES V. UNITED STATES, 362 U.S. 257, 261
(1960): 

    "IN ORDER TO QUALIFY AS A 'PERSON AGGRIEVED BY AN UNLAWFUL

  SEARCH AND SEIZURE' ONE MUST HAVE BEEN A VICTIM OF A SEARCH OR

  SEIZURE, ONE AGAINST WHOM THE SEARCH WAS DIRECTED, AS

  DISTINGUISHED FROM ONE WHO CLAIMS PREJUDICE ONLY THROUGH THE USE

  OF EVIDENCE GATHERED AS A CONSEQUENCE OF A SEARCH OR SEIZURE

  DIRECTED AT SOMEONE ELSE . . . 

     "ORDINARILY, THEN, IT IS ENTIRELY PROPER TO REQUIRE OF ONE WHO

  SEEKS TO CHALLENGE THE LEGALITY OF A SEARCH AS THE BASIS FOR

  SUPPRESSING RELEVANT EVIDENCE THAT HE ALLEGE, AND IF THE

  ALLEGATION BE DISPUTED THAT HE ESTABLISH, THAT HE HIMSELF WAS THE

  VICTIM OF AN INVASION OF PRIVACY."  /6/

THIS SAME PRINCIPLE WAS TWICE ACKNOWLEDGED LAST TERM.  MANCUSI V.
DEFORTE, 392 U.S. 364 (1968); SIMMONS V. UNITED STATES, 390 U.S. 377
(1968).  /7/ 

WE ADHERE TO THESE CASES AND TO THE GENERAL RULE THAT FOURTH
AMENDMENT RIGHTS ARE PERSONAL RIGHTS, WHICH, LIKE SOME OTHER
CONSTITUTIONAL RIGHTS, MAY NOT BE VICARIOUSLY ASSERTED.  SIMMONS V.
UNITED STATES, 390 U.S. 377 (1968); JONES V. UNITED STATES, 362 U.S.
257 (1960).  CF. TILESTON V. ULLMAN, 318 U.S. 44, 46 (1943).  NONE OF
THE SPECIAL CIRCUMSTANCES WHICH PROMPTED NAACP V. ALABAMA, 357 U.S. 449
(1958), AND BARROWS V. JACKSON, 346 U.S. 249 (1953), ARE PRESENT HERE. 
THERE IS NO NECESSITY TO EXCLUDE EVIDENCE AGAINST ONE DEFENDANT IN
ORDER TO PROTECT THE RIGHTS OF ANOTHER.  NO RIGHTS OF THE VICTIM OF AN
ILLEGAL SEARCH ARE AT STAKE WHEN THE EVIDENCE IS OFFERED AGAINST SOME
OTHER PARTY.  THE VICTIM CAN AND VERY PROBABLY WILL OBJECT FOR HIMSELF
WHEN AND IF IT BECOMES IMPORTANT FOR HIM TO DO SO. 

WHAT PETITIONERS APPEAR TO ASSERT IS AN INDEPENDENT CONSTITUTIONAL
RIGHT OF THEIR OWN TO EXCLUDE RELEVANT AND PROBATIVE EVIDENCE BECAUSE
IT WAS SEIZED FROM ANOTHER IN VIOLATION OF THE FOURTH AMENDMENT.  BUT
WE THINK THERE IS A SUBSTANTIAL DIFFERENCE FOR CONSTITUTIONAL PURPOSES
BETWEEN PREVENTING THE INCRIMINATION OF A DEFENDANT THROUGH THE VERY
EVIDENCE ILLEGALLY SEIZED FROM HIM AND SUPPRESSING EVIDENCE ON THE
MOTION OF A PARTY WHO CANNOT CLAIM THIS PREDICATE FOR EXCLUSION. 

THE NECESSITY FOR THAT PREDICATE WAS NOT ELIMINATED BY RECOGNIZING
AND ACKNOWLEDGING THE DETERRENT AIM OF THE RULE.  SEE LINKLETTER V.
WALKER, 381 U.S. 618 (1965); ELKINS V. UNITED STATES, 364 U.S. 206
(1960).  NEITHER THOSE CASES NOR ANY OTHERS HOLD THAT ANYTHING WHICH
DETERS ILLEGAL SEARCHES IS THEREBY COMMANDED BY THE FOURTH AMENDMENT. 
THE DETERRENT VALUES OF PREVENTING THE INCRIMINATION OF THOSE WHOSE
RIGHTS THE POLICE HAVE VIOLATED HAVE BEEN CONSIDERED SUFFICIENT TO
JUSTIFY THE SUPPRESSION OF PROBATIVE EVIDENCE EVEN THOUGH THE CASE
AGAINST THE DEFENDANT IS WEAKENED OR DESTROYED.  WE ADHERE TO THAT
JUDGMENT.  BUT WE ARE NOT CONVINCED THAT THE ADDITIONAL BENEFITS OF
EXTENDING THE EXCLUSIONARY RULE TO OTHER DEFENDANTS WOULD JUSTIFY
FURTHER ENCROACHMENT UPON THE PUBLIC INTEREST IN PROSECUTING THOSE
ACCUSED OF CRIME AND HAVING THEM ACQUITTED OR CONVICTED ON THE BASIS OF
ALL THE EVIDENCE WHICH EXPOSES THE TRUTH. 

WE DO NOT DEPRECATE FOURTH AMENDMENT RIGHTS.  THE SECURITY OF
PERSONS AND PROPERTY REMAINS A FUNDAMENTAL VALUE WHICH LAW ENFORCEMENT
OFFICERS MUST RESPECT.  NOR SHOULD THOSE WHO FLOUT THE RULES ESCAPE
UNSCATHED.  IN THIS RESPECT WE ARE MINDFUL THAT THERE IS NOW A
COMPREHENSIVE STATUTE MAKING UNAUTHORIZED ELECTRONIC SURVEILLANCE A
SERIOUS CRIME.  /8/  THE GENERAL RULE UNDER THE STATUTE IS THAT
OFFICIAL EAVESDROPPING AND WIRETAPPING ARE PERMITTED ONLY WITH PROBABLE
CAUSE AND A WARRANT.  WITHOUT EXPERIENCE SHOWING THE CONTRARY, WE
SHOULD NOT ASSUME THAT THIS NEW STATUTE WILL BE CAVALIERLY DISREGARDED
OR WILL NOT BE ENFORCED AGAINST TRANSGRESSORS. 

OF COURSE, CONGRESS OR STATE LEGISLATURES MAY EXTEND THE
EXCLUSIONARY RULE AND PROVIDE THAT ILLEGALLY SEIZED EVIDENCE IS
INADMISSIBLE AGAINST ANYONE FOR ANY PURPOSE.  /9/  BUT FOR
CONSTITUTIONAL PURPOSES, WE ARE NOT NOW INCLINED TO EXPAND THE EXISTING
RULE THAT UNLAWFUL WIRETAPPING OR EAVESDROPPING, WHETHER DELIBERATE OR
NEGLIGENT, CAN PRODUCE NOTHING USABLE AGAINST THE PERSON AGGRIEVED BY
THE INVASION. 

        II. 

IN THESE CASES, THEREFORE, ANY PETITIONER WOULD BE ENTITLED TO THE
SUPPRESSION OF GOVERNMENT EVIDENCE ORIGINATING IN ELECTRONIC
SURVEILLANCE VIOLATIVE OF HIS OWN FOURTH AMENDMENT RIGHT TO BE FREE OF
UNREASONABLE SEARCHES AND SEIZURES.  SUCH VIOLATION WOULD OCCUR IF THE
UNITED STATES UNLAWFULLY OVERHEARD CONVERSATIONS OF A PETITIONER
HIMSELF OR CONVERSATIONS OCCURRING ON HIS PREMISES, WHETHER OR NOT HE
WAS PRESENT OR PARTICIPATED IN THOSE CONVERSATIONS.  THE UNITED STATES
CONCEDES THIS MUCH AND AGREES THAT FOR PURPOSES OF A HEARING TO
DETERMINE WHETHER THE GOVERNMENT'S EVIDENCE IS TAINTED BY ILLEGAL
SURVEILLANCE, THE TRANSCRIPTS OR RECORDINGS OF THE OVERHEARD
CONVERSATIONS OF ANY PETITIONER OR OF THIRD PERSONS ON HIS PREMISES
MUST BE DULY AND PROPERLY EXAMINED IN THE DISTRICT COURT. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART, WHO ARE IN PARTIAL
DISSENT ON THIS PHASE OF THE CASE, OBJECT TO OUR PROTECTING THE
HOMEOWNER AGAINST THE USE OF THIRD-PARTY CONVERSATIONS OVERHEARD ON HIS
PREMISES BY AN UNAUTHORIZED SURVEILLANCE.  THEIR POSITION IS THAT
UNLESS THE CONVERSATIONAL PRIVACY OF THE HOMEOWNER HIMSELF IS INVADED,
THERE IS NO BASIS IN THE FOURTH AMENDMENT FOR EXCLUDING THIRD-PARTY
CONVERSATIONS OVERHEARD ON HIS PREMISES.  WE CANNOT AGREE.  IF THE
POLICE MAKE AN UNWARRANTED SEARCH OF A HOUSE AND SEIZE TANGIBLE
PROPERTY BELONGING TO THIRD PARTIES-- EVEN A TRANSCRIPT OF A THIRD
PARTY CONVERSATION-- THE HOMEOWNER MAY OBJECT TO ITS USE AGAINST HIM,
NOT BECAUSE HE HAD ANY INTEREST IN THE SEIZED ITEMS AS "EFFECTS"
PROTECTED BY THE FOURTH AMENDMENT, BUT BECAUSE THEY WERE THE FRUITS OF
AN UNAUTHORIZED SEARCH OF HIS HOUSE, WHICH IS ITSELF EXPRESSLY
PROTECTED BY THE FOURTH AMENDMENT.  /10/  NOTHING SEEN OR FOUND ON THE
PREMISES MAY LEGALLY FORM THE BASIS FOR AN ARREST OR SEARCH WARRANT OR
FOR TESTIMONY AT THE HOMEOWNER'S TRIAL, SINCE THE PROSECUTION WOULD BE
USING THE FRUITS OF A FOURTH AMENDMENT VIOLATION.  SILVERTHORNE LUMBER
CO. V. UNITED STATES, 251 U.S. 385 (1920); JOHNSON V. UNITED STATES,
333 U.S. 10 (1948); WONG SUN V. UNITED STATES, 371 U.S. 471 (1963). 

THE COURT HAS CHARACTERISTICALLY APPLIED THE SAME RULE WHERE AN
UNAUTHORIZED ELECTRONIC SURVEILLANCE IS CARRIED OUT BY PHYSICAL
INVASION OF THE PREMISES.  THIS MUCH THE DISSENT FRANKLY CONCEDES. 
LIKE PHYSICAL EVIDENCE WHICH MIGHT BE SEIZED, OVERHEARD CONVERSATIONS
ARE FRUITS OF AN ILLEGAL ENTRY AND ARE INADMISSIBLE IN EVIDENCE. 
SILVERMAN V. UNITED STATES, 365 U.S. 505 (1961); WONG SUN V. UNITED
STATES, SUPRA.  WHEN SILVERMAN WAS DECIDED, NO RIGHT OF CONVERSATIONAL
PRIVACY HAD BEEN RECOGNIZED AS SUCH; THE RIGHT VINDICATED IN THAT CASE
WAS THE FOURTH AMENDMENT RIGHT TO BE SECURE IN ONE'S OWN HOME.  IN WONG
SUN, THE WORDS SPOKEN BY BLACKIE TOY WHEN THE POLICE ILLEGALLY ENTERED
HIS HOUSE WERE NOT USABLE AGAINST HIM BECAUSE THEY WERE THE FRUITS OF A
PHYSICAL INVASION OF HIS PREMISES WHICH VIOLATED THE FOURTH AMENDMENT. 
BECAUSE THE COURT HAS NOW DECIDED THAT THE FOURTH AMENDMENT PROTECTS
A PERSON'S PRIVATE CONVERSATIONS AS WELL AS HIS PRIVATE PREMISES, KATZ
V. UNITED STATES, 389 U.S. 347 (1967), THE DISSENT WOULD DISCARD THE
CONCEPT THAT PRIVATE CONVERSATIONS OVERHEARD THROUGH AN ILLEGAL ENTRY
INTO A PRIVATE PLACE MUST BE EXCLUDED AS THE FRUITS OF A FOURTH
AMENDMENT VIOLATION.  ALTHOUGH OFFICERS WITHOUT A VALID WARRANT MAY NOT
SEARCH A HOUSE FOR PHYSICAL EVIDENCE OR INCRIMINATING INFORMATION,
WHETHER THE OWNER IS PRESENT OR AWAY, THE DISSENT WOULD PERMIT THEM TO
ENTER THAT HOUSE WITHOUT CONSENT AND WITHOUT A WARRANT, INSTALL A
LISTENING DEVICE, AND USE ANY OVERHEARD THIRD-PARTY CONVERSATIONS
AGAINST THE OWNER IN A CRIMINAL CASE, IN SPITE OF THE OBVIOUS VIOLATION
OF HIS FOURTH AMENDMENT RIGHT TO BE SECURE IN HIS OWN DWELLING.  EVEN
IF THE OWNER IS PRESENT ON HIS PREMISES DURING THE SURVEILLANCE, HE
WOULD HAVE NO COMPLAINT UNLESS HIS OWN CONVERSATIONS WERE OFFERED OR
USED AGAINST HIM.  INFORMATION FROM A TELEPHONE TAP OR FROM THE
MICROPHONE IN THE KITCHEN OR IN THE ROOMS OF GUESTS OR CHILDREN WOULD
BE FREELY USABLE AS LONG AS THE HOMEOWNER'S OWN CONVERSATIONS ARE NOT
MONITORED AND USED AGAINST HIM.  INDEED, IF THE POLICE, INSTEAD OF
INSTALLING A DEVICE, SECRETED THEMSELVES ON THE PREMISES, THEY COULD
NEITHER TESTIFY ABOUT NOR USE AGAINST THE OWNER ANYTHING THEY SAW OR
CARRIED AWAY, BUT WOULD BE FREE TO USE AGAINST HIM EVERYTHING THEY
OVERHEARD EXCEPT HIS OWN CONVERSATIONS.  AND SHOULD POLICE OVERHEAR
THIRD PARTIES DESCRIBING NARCOTICS WHICH THEY HAVE DISCOVERED IN THE
OWNER'S DESK DRAWER, THE POLICE COULD NOT THEN OPEN THE DRAWER AND
SEIZE THE NARCOTICS, BUT THEY COULD SECURE A WARRANT ON THE BASIS OF
WHAT THEY HAD HEARD AND FORTHWITH SEIZE THE NARCOTICS PURSUANT TO THAT
WARRANT.  /11/ 

THESE VIEWS WE DO NOT ACCEPT.  WE ADHERE TO THE ESTABLISHED VIEW IN
THIS COURT THAT THE RIGHT TO BE SECURE IN ONE'S HOUSE AGAINST
UNAUTHORIZED INTRUSION IS NOT LIMITED TO PROTECTION AGAINST A POLICEMAN
VIEWING OR SEIZING TANGIBLE PROPERTY-- "PAPERS" AND "EFFECTS." 
OTHERWISE, THE EXPRESS SECURITY FOR THE HOME PROVIDED BY THE FOURTH
AMENDMENT WOULD APPROACH REDUNDANCY.  THE RIGHTS OF THE OWNER OF THE
PREMISES ARE AS CLEARLY INVADED WHEN THE POLICE ENTER AND INSTALL A
LISTENING DEVICE IN HIS HOUSE AS THEY ARE WHEN THE ENTRY IS MADE TO
UNDERTAKE A WARRANTLESS SEARCH FOR TANGIBLE PROPERTY; AND THE
PROSECUTION AS SURELY EMPLOYS THE FRUITS OF AN ILLEGAL SEARCH OF THE
HOME WHEN IT OFFERS OVERHEARD THIRD-PARTY CONVERSATIONS AS IT DOES WHEN
IT INTRODUCES TANGIBLE EVIDENCE BELONGING NOT TO THE HOMEOWNER, BUT TO
OTHERS.  NOR DO WE BELIEVE THAT KATZ, BY HOLDING THAT THE FOURTH
AMENDMENT PROTECTS PERSONS AND THEIR PRIVATE CONVERSATIONS, WAS
INTENDED TO WITHDRAW ANY OF THE PROTECTION WHICH THE AMENDMENT EXTENDS
TO THE HOME OR TO OVERRULE THE EXISTING DOCTRINE, RECOGNIZED AT LEAST
SINCE SILVERMAN, THAT CONVERSATIONS AS WELL AS PROPERTY ARE EXCLUDABLE
FROM THE CRIMINAL TRIAL WHEN THEY ARE FOUND TO BE THE FRUITS OF AN
ILLEGAL INVASION OF THE HOME.  IT WAS NOTED IN SILVERMAN, 365 U.S.,AT
511-512, THAT 

"THIS COURT HAS NEVER HELD THAT A FEDERAL OFFICER MAY WITHOUT
WARRANT AND WITHOUT CONSENT PHYSICALLY ENTRENCH INTO A MAN'S OFFICE OR
HOME, THERE SECRETLY OBSERVE OR LISTEN, AND RELATE AT THE MAN'S
SUBSEQUENT CRIMINAL TRIAL WHAT WAS SEEN OR HEARD."  THE COURT PROCEEDED
TO HOLD QUITE THE CONTRARY.  WE TAKE THE SAME COURSE HERE. 

        III. 

THE REMAINING ASPECT OF THESE CASES RELATES TO THE PROCEDURES TO BE
FOLLOWED BY THE DISTRICT COURT IN RESOLVING THE ULTIMATE ISSUE WHICH
WILL BE BEFORE IT-- WHETHER THE EVIDENCE AGAINST ANY PETITIONER GREW
OUT OF HIS ILLEGALLY OVERHEARD CONVERSATIONS OR CONVERSATIONS OCCURRING
ON HIS PREMISES.  /12/  THE QUESTION AS STATED IN WONG SUN V. UNITED
STATES, 371 U.S. 471, 488 (1963), IS "'WHETHER, GRANTING ESTABLISHMENT
OF THE PRIMARY ILLEGALITY, THE EVIDENCE TO WHICH INSTANT OBJECTION IS
MADE HAS BEEN COME AT BY EXPLOITATION OF THAT ILLEGALITY OR INSTEAD BY
MEANS SUFFICIENTLY DISTINGUISHABLE TO BE PURGED OF THE PRIMARY
TAINT.'"  SEE ALSO NARDONE V. UNITED STATES, 308 U.S. 338, 341 (1939). 

THE GOVERNMENT CONCEDES THAT IT MUST DISCLOSE TO PETITIONERS ANY
SURVEILLANCE RECORDS WHICH ARE RELEVANT TO THE DECISION OF THIS
ULTIMATE ISSUE.  AND IT RECOGNIZES THAT THIS DISCLOSURE MUST BE MADE
EVEN THOUGH ATTENDED BY POTENTIAL DANGER TO THE REPUTATION OR SAFETY OF
THIRD PARTIES OR TO THE NATIONAL SECURITY-- UNLESS THE UNITED STATES
WOULD PREFER DISMISSAL OF THE CASE TO DISCLOSURE OF THE INFORMATION. 
HOWEVER, THE GOVERNMENT CONTENDS THAT IT NEED NOT BE PUT TO THIS
DISCLOSE-OR-DISMISS OPTION IN THE INSTANT CASES BECAUSE NONE OF THE
INFORMATION OBTAINED FROM ITS SURVEILLANCE IS "ARGUABLY RELEVANT" TO
PETITIONERS' CONVICTIONS, IN THE SENSE THAT NONE OF THE OVERHEARD
CONVERSATIONS ARGUABLY UNDERLAY ANY OF THE EVIDENCE OFFERED IN THESE
CASES.  ALTHOUGH NOT NOW INSISTING THAT ITS OWN EVALUATION OF RELEVANCE
SHOULD BE ACCEPTED AUTOMATICALLY AND WITHOUT JUDICIAL SCRUTINY, THE
UNITED STATES URGES THAT THE RECORDS OF THE SPECIFIED CONVERSATIONS BE
FIRST SUBMITTED TO THE TRIAL JUDGE FOR AN IN CAMERA EXAMINATION.  ANY
RECORD FOUND ARGUABLY RELEVANT BY THE JUDGE WOULD BE TURNED OVER TO THE
PETITIONER WHOSE FOURTH AMENDMENT RIGHTS HAVE BEEN VIOLATED, AND THAT
PETITIONER WOULD THEN HAVE THE OPPORTUNITY TO USE THE DISCLOSED
INFORMATION IN HIS ATTEMPT TO SHOW THAT THE GOVERNMENT HAS USED TAINTED
EVIDENCE TO CONVICT HIM.  MATERIAL NOT ARGUABLY RELEVANT WOULD NOT BE
DISCLOSED TO ANY PETITIONER.  /13/ 

ALTHOUGH THIS MAY APPEAR A MODEST PROPOSAL, ESPECIALLY SINCE THE
STANDARD FOR DISCLOSURE WOULD BE "ARGUABLE" RELEVANCE, WE CONCLUDE THAT
SURVEILLANCE RECORDS AS TO WHICH ANY PETITIONER HAS STANDING TO OBJECT
SHOULD BE TURNED OVER TO HIM WITHOUT BEING SCREENED IN CAMERA BY THE
TRIAL JUDGE.  ADMITTEDLY, THERE MAY BE MUCH LEARNED FROM AN ELECTRONIC
SURVEILLANCE WHICH ULTIMATELY CONTRIBUTES NOTHING TO PROBATIVE
EVIDENCE.  BUT WINNOWING THIS MATERIAL FROM THOSE ITEMS WHICH MIGHT
HAVE MADE A SUBSTANTIAL CONTRIBUTION TO THE CASE AGAINST A PETITIONER
IS A TASK WHICH SHOULD NOT BE ENTRUSTED WHOLLY TO THE COURT IN THE
FIRST INSTANCE.  IT MIGHT BE OTHERWISE IF THE TRIAL JUDGE HAD ONLY TO
PLACE THE TRANSCRIPT OR OTHER RECORD OF THE SURVEILLANCE ALONGSIDE THE
RECORD EVIDENCE AND COMPARE THE TWO FOR TEXTUAL OR SUBSTANTIVE
SIMILARITIES.  EVEN THAT ASSIGNMENT WOULD BE DIFFICULT ENOUGH FOR THE
TRIAL JUDGE TO PERFORM UNAIDED.  BUT A GOOD DEAL MORE IS INVOLVED.  AN
APPARENTLY INNOCENT PHRASE, A CHANCE REMARK, A REFERENCE TO WHAT
APPEARS TO BE A NEUTRAL PERSON OR EVENT, THE IDENTITY OF A CALLER OR
THE INDIVIDUAL ON THE OTHER END OF A TELEPHONE, OR EVEN THE MANNER OF
SPEAKING OR USING WORDS MAY HAVE SPECIAL SIGNIFICANCE TO ONE WHO KNOWS
THE MORE INTIMATE FACTS OF AN ACCUSED'S LIFE.  AND YET THAT INFORMATION
MAY BE WHOLLY COLORLESS AND DEVOID OF MEANING TO ONE LESS WELL
ACQUAINTED WITH ALL RELEVANT CIRCUMSTANCES.  UNAVOIDABLY, THIS IS A
MATTER OF JUDGMENT, BUT IN OUR VIEW THE TASK IS TOO COMPLEX, AND THE
MARGIN FOR ERROR TOO GREAT, TO RELY WHOLLY ON THE IN CAMERA JUDGMENT OF
THE TRIAL COURT TO IDENTIFY THOSE RECORDS WHICH MIGHT HAVE CONTRIBUTED
TO THE GOVERNMENT'S CASE.  /14/ 

THE UNITED STATES CONCEDES THAT WHEN AN ILLEGAL SEARCH HAS COME TO
LIGHT, IT HAS THE ULTIMATE BURDEN OF PERSUASION TO SHOW THAT ITS
EVIDENCE IS UNTAINTED.  BUT AT THE SAME TIME PETITIONERS ACKNOWLEDGE
THAT THEY MUST GO FORWARD WITH SPECIFIC EVIDENCE DEMONSTRATING TAINT. 
"(THE TRIAL JUDGE MUST GIVE OPPORTUNITY, HOWEVER CLOSELY CONFINED, TO
THE ACCUSED TO PROVE THAT A SUBSTANTIAL PORTION OF THE CASE AGAINST HIM
WAS A FRUIT OF THE POISONOUS TREE.  THIS LEAVES AMPLE OPPORTUNITY TO
THE GOVERNMENT TO CONVINCE THE TRIAL COURT THAT ITS PROOF HAD AN
INDEPENDENT ORIGIN."  NARDONE V. UNITED STATES, 308 U.S. 338, 341
(1939).  WITH THIS TASK AHEAD OF THEM, AND IF THE HEARINGS ARE TO BE
MORE THAN A FORMALITY AND PETITIONERS NOT LEFT ENTIRELY TO RELIANCE ON
GOVERNMENT TESTIMONY, THERE SHOULD BE TURNED OVER TO THEM THE RECORDS
OF THOSE OVERHEARD CONVERSATIONS WHICH THE GOVERNMENT WAS NOT ENTITLED
TO USE IN BUILDING ITS CASE AGAINST THEM. 

ADVERSARY PROCEEDINGS ARE A MAJOR ASPECT OF OUR SYSTEM OF CRIMINAL
JUSTICE.  THEIR SUPERIORITY AS A MEANS FOR ATTAINING JUSTICE IN A GIVEN
CASE IS NOWHERE MORE EVIDENT THAN IN THOSE CASES, SUCH AS THE ONES AT
BAR, WHERE AN ISSUE MUST BE DECIDED ON THE BASIS OF A LARGE VOLUME OF
FACTUAL MATERIALS, AND AFTER CONSIDERATION OF THE MANY AND SUBTLE
INTERRELATIONSHIPS WHICH MAY EXIST AMONG THE FACTS REFLECTED BY THESE
RECORDS.  AS THE NEED FOR ADVERSARY INQUIRY IS INCREASED BY THE
COMPLEXITY OF THE ISSUES PRESENTED FOR ADJUDICATION, AND BY THE
CONSEQUENT INADEQUACY OF EX PARTE PROCEDURES AS A MEANS FOR THEIR
ACCURATE RESOLUTION, THE DISPLACEMENT OF WELL-INFORMED ADVOCACY
NECESSARILY BECOMES LESS JUSTIFIABLE. 

ADVERSARY PROCEEDINGS WILL NOT MAGICALLY ELIMINATE ALL ERROR, BUT
THEY WILL SUBSTANTIALLY REDUCE ITS INCIDENCE BY GUARDING AGAINST THE
POSSIBILITY THAT THE TRIAL JUDGE, THROUGH LACK OF TIME OR UNFAMILIARITY
WITH THE INFORMATION CONTAINED IN AND SUGGESTED BY THE MATERIALS, WILL
BE UNABLE TO PROVIDE THE SCRUTINY WHICH THE FOURTH AMENDMENT
EXCLUSIONARY RULE DEMANDS.  IT MAY BE THAT THE PROSPECT OF DISCLOSURE
WILL COMPEL THE GOVERNMENT TO DISMISS SOME PROSECUTIONS IN DEFERENCE TO
NATIONAL SECURITY OR THIRD-PARTY INTERESTS.  BUT THIS IS A CHOICE THE
GOVERNMENT CONCEDEDLY FACES WITH RESPECT TO MATERIAL WHICH IT HAS
OBTAINED ILLEGALLY AND WHICH IT ADMITS, OR WHICH A JUDGE WOULD FIND, IS
ARGUABLE RELEVANT TO THE EVIDENCE OFFERED AGAINST THE DEFENDANT.  /15/ 

WE THINK THIS RESOLUTION WILL AVOID AN EXORBITANT EXPENDITURE OF
JUDICIAL TIME AND ENERGY AND WILL NOT UNDULY PREJUDICE OTHERS OR THE
PUBLIC INTEREST.  IT MUST BE REMEMBERED THAT DISCLOSURE WILL BE LIMITED
TO THE TRANSCRIPTS OF A DEFENDANT'S OWN CONVERSATIONS AND OF THOSE
WHICH TOOK PLACE ON HIS PREMISES.  IT CAN BE SAFELY ASSUMED THAT MUCH
OF THIS HE WILL ALREADY KNOW, AND DISCLOSURE SHOULD THEREFORE INVOLVE A
MINIMUM HAZARD TO OTHERS.  IN ADDITION, THE TRIAL COURT CAN AND SHOULD,
WHERE APPROPRIATE, PLACE A DEFENDANT AND HIS COUNSEL UNDER ENFORCEABLE
ORDERS AGAINST UNWARRANTED DISCLOSURE OF THE MATERIALS WHICH THEY MAY
BE ENTITLED TO INSPECT.  SEE FED. RULE CRIM. PROC. 16(E).  WE WOULD NOT
EXPECT THE DISTRICT COURTS TO PERMIT THE PARTIES OR COUNSEL TO TAKE
THESE ORDERS LIGHTLY. 

NONE OF THIS MEANS THAT ANY DEFENDANT WILL HAVE AN UNLIMITED LICENSE
TO RUMMAGE IN THE FILES OF THE DEPARTMENT OF JUSTICE.  ARMED WITH THE
SPECIFIED RECORDS OF OVERHEARD CONVERSATIONS AND WITH THE RIGHT TO
CROSS-EXAMINE THE APPROPRIATE OFFICIALS IN REGARD TO THE CONNECTION
BETWEEN THOSE RECORDS AND THE CASE MADE AGAINST HIM, A DEFENDANT MAY
NEED OR BE ENTITLED TO NOTHING ELSE.  WHETHER THIS IS THE CASE OR NOT
MUST BE LEFT TO THE INFORMED DISCRETION, GOOD SENSE, AND FAIRNESS OF
THE TRIAL JUDGE.  SEE NARDONE V. UNITED STATES, 308 U.S. 338, 341-342
(1939).  /16/

        IV. 

ACCORDINGLY, IN NO. 133, O.T. 1967, THE MOTION OF THE UNITED STATES
IS DENIED TO THE EXTENT THAT IT REQUESTS AN INITIAL IN CAMERA
INSPECTION OF THE FRUITS OF ANY UNLAWFUL SURVEILLANCE AND THE
WITHHOLDING OF THOSE PORTIONS OF THE MATERIALS WHICH THE TRIAL JUDGE
MIGHT DEEM IRRELEVANT TO THESE CONVICTIONS.  PRIMARILY BECAUSE OF OUR
DECISION WITH RESPECT TO STANDING, HOWEVER, THE ORDER AND JUDGMENT OF
JANUARY 29, 1968, ARE WITHDRAWN.  THE ORDER DENYING TO PETITIONERS A
WRIT OF CERTIORARI IS SET ASIDE.  THE PETITION FOR REHEARING IS
GRANTED, AND THE PETITION CERTIORARI IS GRANTED AS TO BOTH ALDERISIO
AND ALDERMAN.  THE JUDGMENTS OF THE COURT OF APPEALS FOR THE TENTH
CIRCUIT IN NO. 133, O.T. 1967, AND THE JUDGMENTS OF THE COURT OF
APPEALS FOR THE THIRD CIRCUIT IN NOS. 11 AND 197 ARE VACATED, AND EACH
OF THE CASES IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION, THAT IS, FOR A HEARING, FINDINGS, AND
CONCLUSIONS (1) ON THE QUESTION OF WHETHER WITH RESPECT TO ANY
PETITIONER THERE WAS ELECTRONIC SURVEILLANCE WHICH VIOLATED HIS FOURTH
AMENDMENT RIGHTS, AND (2) IF THERE WAS SUCH SURVEILLANCE WITH RESPECT
TO ANY PETITIONER, ON THE NATURE AND RELEVANCE TO HIS CONVICTION OF ANY
CONVERSATIONS WHICH MAY HAVE BEEN OVERHEARD THROUGH THAT SURVEILLANCE. 
THE DISTRICT COURT SHOULD CONFINE THE EVIDENCE PRESENTED BY BOTH SIDES
TO THAT WHICH IS MATERIAL TO THE QUESTION BY BOTH SIDES TO THAT WHICH
IS MATERIAL TO THE QUESTION OF THE POSSIBLE VIOLATION OF A PETITIONER'S
FOURTH AMENDMENT RIGHTS, TO THE CONTENT OF CONVERSATIONS ILLEGALLY
OVERHEARD BY SURVEILLANCE WHICH VIOLATED THOSE RIGHTS AND TO THE
RELEVANCE OF SUCH CONVERSATIONS TO THE PETITIONER'S SUBSEQUENT
CONVICTION.  THE DISTRICT COURT WILL MAKE SUCH FINDINGS OF FACT ON
THOSE QUESTIONS AS MAY BE APPROPRIATE IN LIGHT OF THE FURTHER EVIDENCE
AND OF THE ENTIRE EXISTING RECORD.  IF THE DISTRICT COURT DECIDES ON
THE BASIS OF SUCH FINDINGS (1) THAT THERE WAS ELECTRONIC SURVEILLANCE
WITH RESPECT TO ONE OR MORE PETITIONERS BUT NOT ANY WHICH VIOLATED THE
FOURTH AMENDMENT, OR (2) THAT ALTHOUGH THERE WAS A SURVEILLANCE IN
VIOLATION OF ONE OR MORE OF THE PETITIONERS' FOURTH AMENDMENT RIGHTS,
THE CONVICTION OF SUCH PETITIONER WAS NOT TAINTED BY THE USE OF
EVIDENCE SO OBTAINED, IT WILL ENTER NEW FINAL JUDGMENTS OF CONVICTION
BASED ON THE EXISTING RECORD AS SUPPLEMENTED BY ITS FURTHER FINDINGS,
THEREBY PRESERVING TO ALL AFFECTED PARTIES THE RIGHT TO SEEK FURTHER
APPROPRIATE APPELLATE REVIEW.  IF, ON THE OTHER HAND, THE DISTRICT
COURT CONCLUDES IN SUCH FURTHER PROCEEDINGS THAT THERE WAS A VIOLATION
OF ANY PETITIONER'S FOURTH AMENDMENT RIGHTS AND THAT THE CONVICTION OF
THE PETITIONER WAS TAINTED BY SUCH VIOLATION, IT WOULD THEN BECOME ITS
DUTY TO ACCORD SUCH PETITIONER A NEW TRIAL.                    VACATED
AND REMANDED. 

/0/  TOGETHER WITH NO. 11, IVANOV V. UNITED STATES, AND NO. 197,
BUTENKO V. UNITED STATES, ON CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT, ARGUED OCTOBER 14, 1968.     /1/  IN ITS
BRIEF ON REARGUMENT, THE GOVERNMENT SUGGESTS THAT NO ELECTRONIC
SURVEILLANCE WAS CONDUCTED AT PLACED OWNED BY ALDERISIO, BUT RATHER WAS
CARRIED OUT ONLY AT PREMISES OWNED BY HIS ASSOCIATES OR BY FIRMS WHICH
EMPLOYED HIM.  THE GOVERNMENT ALSO CONTENDS THAT ALDERISIO HIMSELF DID
NOT HAVE DESK SPACE AT THE SUBJECT PREMISES.  FINALLY, THE GOVERNMENT
ASSERTS THAT ALDERMAN NEITHER PARTICIPATED IN ANY CONVERSATION
OVERHEARD NOR HAD ANY INTEREST IN THE PLACES WHICH WERE THE OBJECT OF
THE SURVEILLANCE.  THESE ALLEGATIONS BY THE GOVERNMENT WILL HAVE TO BE
CONSIDERED BY THE DISTRICT COURT IN THE FIRST INSTANCE, AND WE EXPRESS
NO OPINION NOW ON THEIR MERIT. 

/2/  IN OUR ORDER OF JUNE 17, 1968, RESTORING THE GOVERNMENT'S
MOTION TO THE CALENDAR FOR REARGUMENT, 392 U.S. 919-920, WE REQUESTED
COUNSEL TO INCLUDE THE FOLLOWING AMONG ISSUES TO BE DISCUSSED IN BRIEFS
AND ORAL ARGUMENT: 

"(1) SHOULD THE RECORDS OF THE ELECTRONIC SURVEILLANCE OF PETITIONER
ALDERISIO'S PLACE OF BUSINESS BE SUBJECTED TO IN CAMERA INSPECTION BY
THE TRIAL JUDGE TO DETERMINE THE NECESSITY OF COMPELLING THE GOVERNMENT
TO MAKE DISCLOSURE OF SUCH RECORDS TO PETITIONERS, AND IF SO TO WHAT
EXTENT? 

"(2) IF IN CAMERA INSPECTION IS AUTHORIZED OR ORDERED, BY WHAT
STANDARDS (FOR EXAMPLE, RELEVANCE AND CONSIDERATIONS OF INJURY TO
PERSONS OR TO REPUTATIONS) SHOULD THE TRIAL JUDGE DETERMINE WHETHER THE
RECORDS ARE TO BE TURNED OVER TO PETITIONERS? 

"(3) WHAT STANDARDS ARE TO BE APPLIED IN DETERMINING WHETHER EACH
PETITIONER HAS STANDING TO OBJECT TO THE USE AGAINST HIM OF THE
INFORMATION OBTAINED FROM THE ELECTRONIC SURVEILLANCE OF PETITIONER
ALDERISIO'S PLACE OF BUSINESS?  MORE SPECIFICALLY, DOES PETITIONER
ALDERISIO HAVE STANDING TO OBJECT TO THE USE OF ANY OR ALL INFORMATION
OBTAINED FROM SUCH ELECTRONIC SURVEILLANCE WHETHER OR NOT HE WAS
PRESENT ON THE PREMISES OR PARTY TO A PARTICULAR OVERHEARD
CONVERSATION?  ALSO, DOES PETITIONER ALDERMAN HAVE STANDING TO OBJECT
TO THE USE AGAINST HIM OF ANY OR ALL INFORMATION OBTAINED FROM THE
ELECTRONIC SURVEILLANCE OF PETITIONER ALDERISIO'S BUSINESS
ESTABLISHMENT?" 

/3/  THE UNITED STATES ADMITS OVERHEARING CONVERSATIONS OF EACH
PETITIONER, BUT WHERE THE SURVEILLANCE TOOK PLACE AND OTHER PERTINENT
DETAILS ARE UNKNOWN.  IN ITS BRIEF THE GOVERNMENT STATES: 

"IN SOME OF THE INSTANCES THE INSTALLATION HAD BEEN SPECIFICALLY
APPROVED BY THE THEN ATTORNEY GENERAL.  IN OTHERS THE EQUIPMENT WAS
INSTALLED UNDER A BROADER GRANT OF AUTHORITY TO THE F.B.I., IN EFFECT
AT THAT TIME, WHICH DID NOT REQUIRE SPECIFIC AUTHORIZATION . . .
(PRESENT DEPARTMENT OF JUSTICE POLICE WOULD CALL FOR SPECIFIC
AUTHORIZATION FROM THE ATTORNEY GENERAL FOR ANY USE OF ELECTRONIC
EQUIPMENT IN SUCH CASES." 

IN ALL THREE CASES, THE DISTRICT COURT MUST DEVELOP THE RELEVANT
FACTS AND DECIDE IF THE GOVERNMENT'S ELECTRONIC SURVEILLANCE WAS
UNLAWFUL.  OUR ASSUMPTION, FOR PRESENT PURPOSES, IS THAT THE
SURVEILLANCE WAS ILLEGAL. 

/4/ IN EACH CASE THE GRANT OF CERTIORARI, 392 U.S. 923, WAS LIMITED
TO THE FOLLOWING QUESTIONS: 

"ON THE ASSUMPTION THAT THERE WAS ELECTRONIC SURVEILLANCE OF
PETITIONER OR A CODEFENDANT WHICH VIOLATED THE FOURTH AMENDMENT, 

"(1SHOULD THE RECORDS OF SUCH ELECTRONIC SURVEILLANCE BE SUBJECTED
TO IN CAMERA INSPECTION BY THE TRIAL JUDGE TO DETERMINE THE NECESSITY
OF COMPELLING THE GOVERNMENT TO MAKE DISCLOSURE OF SUCH RECORDS TO
PETITIONER, AND IF SO TO WHAT EXTENT? 

"(2) IF IN CAMERA INSPECTION IS TO BE AUTHORIZED OR ORDERED, BY WHAT
STANDARDS (FOR EXAMPLE, RELEVANCE, AND CONSIDERATIONS OF NATIONAL
SECURITY OR INJURY TO PERSONS OR REPUTATIONS) SHOULD THE TRIAL JUDGE
DETERMINE WHETHER THE RECORDS ARE TO BE TURNED OVER TO THE DEFENDANT? 

"(3) WHAT STANDARDS ARE TO BE APPLIED IN DETERMINING WHETHER
PETITIONER HAS STANDING TO OBJECT TO THE USE AGAINST HIM OF INFORMATION
OBTAINED FROM SUCH ILLEGAL SURVEILLANCE?  MORE SPECIFICALLY, IF ILLEGAL
SURVEILLANCE TOOK PLACE AT THE PREMISES OF A PARTICULAR DEFENDANT, 

"(A) DOES THAT DEFENDANT HAVE STANDING TO OBJECT TO THE USE AGAINST
HIM OF ANY OR ALL INFORMATION OBTAINED FROM THE ILLEGAL SURVEILLANCE,
WHETHER OR NOT HE WAS PRESENT ON THE PREMISES OR PARTY TO THE OVERHEARD
CONVERSATION? 

"(B) DOES A CODEFENDANT HAVE STANDING TO OBJECT TO THE USE AGAINST HIM
OF ANY OR ALL INFORMATION OBTAINED FROM THE ILLEGAL SURVEILLANCE,
WHETHER OR NOT HE WAS PRESENT ON THE PREMISES OR PARTY TO THE OVERHEARD
CONVERSATION?" 

/5/  AS THE ISSUE WAS PUT AND ANSWERED BY THE COURT: 

"THE QUESTION NOW TO BE DECIDED IS WHETHER WE SHALL EXTEND THE
SANCTION FOR VIOLATION OF THE COMMUNICATIONS ACT SO AS TO MAKE
AVAILABLE TO ONE NOT A PARTY TO THE INTERCEPTED COMMUNICATION THE
OBJECTION THAT ITS USE OUTSIDE THE COURTROOM, AND PRIOR TO THE TRIAL,
INDUCED EVIDENCE WHICH, EXCEPT FOR THAT USE, WOULD BE ADMISSIBLE. 

"NO COURT HAS EVER GONE SO FAR IN APPLYING THE IMPLIED SANCTION FOR
VIOLATION OF THE FOURTH AMENDMENT.  WHILE THIS COURT HAS NEVER BEEN
CALLED UPON TO DECIDE THE POINT, THE FEDERAL COURTS IN NUMEROUS CASES,
AND WITH UNANIMITY, HAVE DENIED STANDING TO ONE NOT THE VICTIM OF AN
UNCONSTITUTIONAL SEARCH AND SEIZURE TO OBJECT TO THE INTRODUCTION IN
EVIDENCE OF THAT WHICH WAS SEIZED.  A FORTIORI THE SAME RULE SHOULD
APPLY TO THE INTRODUCTION OF EVIDENCE INDUCED BY THE USE OR DISCLOSURE
THEREOF TO A WITNESS OTHER THAN THE VICTIM OF THE SEIZURE.  WE THINK NO
BROADER SANCTION SHOULD BE IMPOSED UPON THE GOVERNMENT IN RESPECT OF
VIOLATIONS OF THE COMMUNICATIONS ACT."  316 U.S.,AT 121. 

THE COURT NOTED THAT THE PRINCIPLE HAD BEEN APPLIED "IN AT LEAST
FIFTY CASES BY THE CIRCUIT COURTS OF APPEALS . . . NOT TO MENTION MANY
DECISIONS BY DISTRICT COURTS."  ID., AT 121, N. 12. 

/6/  THE "PERSON AGGRIEVED" LANGUAGE IS FROM FED. RULE CRIM. PROC.
41(E).  JONES THUS MAKES CLEAR THAT RULE 41 CONFORMS TO THE GENERAL
STANDARD AND IS NO BROADER THAN THE CONSTITUTIONAL RULE. 

/7/  MCDONALD V. UNITED STATES, 335 U.S. 451 (1948), IS NOT
AUTHORITY TO THE CONTRARY.  IT IS NOT AT ALL CLEAR THAT THE MCDONALD
OPINION WOULD AUTOMATICALLY EXTEND STANDING TO A CODEFENDANT.  TWO OF
THE FIVE JUSTICES JOINING THE MAJORITY OPINION DID NOT READ THE OPINION
TO DO SO AND FOUND THE BASIS FOR THE CODEFENDANT'S STANDING TO BE THE
FACT THAT HE WAS A GUEST ON THE PREMISES SEARCHED.  "BUT EVEN A GUEST
MAY EXPECT THE SHELTER OF THE ROOFTREE HE IS UNDER AGAINST CRIMINAL
INTRUSION."  ID., AT 461 (JACKSON, J., CONCURRING).  CF. JONES V.
UNITED STATES, 362 U.S. 257 (1960).  NOR DOES HOFFA V. UNITED STATES,
362 U.S. 257 (1960).  NOR DOES HOFFA V. UNITED STATES, 385 U.S. 293
(1966), LEND ANY SUPPORT TO PETITIONERS' POSITION, SINCE THE COURT
EXPRESSLY PUT ASIDE THE ISSUE OF STANDING. 

/8/  TITLE III, OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968,
PUB. L. 90-351, 82 STAT. 211.  NOT ONLY DOES THE ACT IMPOSE CRIMINAL
PENALTIES UPON THOSE WHO VIOLATE ITS PROVISIONS GOVERNING EAVESDROPPING
AND WIRETAPPING, 82 STAT. 213 (18 U.S.C. 2511 (1964 ED., SUPP. IV))
(FINE OF NOT MORE THAN $10,000, OR IMPRISONMENT FOR NOT MORE THAN FIVE
YEARS, OR BOTH), BUT IT ALSO AUTHORIZES THE RECOVERY OF CIVIL DAMAGES
BY A PERSON WHOSE WIRE OR ORAL COMMUNICATION IS INTERCEPTED, DISCLOSED,
OR USED IN VIOLATION OF THE ACT, 82 STAT. 223 (18 U.S.C. 2520 (1964
ED., SUPP. IV)) (PERMITTING RECOVERY OF ACTUAL AND PUNITIVE DAMAGES, AS
WELL AS A REASONABLE ATTORNEY'S FEE AND OTHER COSTS OF LITIGATION
REASONABLY INCURRED). 

/9/  CONGRESS HAS NOT DONE SO.  IN ITS RECENT WIRETAPPING AND
EAVESDROPPING LEGISLATION, CONGRESS HAS PROVIDED ONLY THAT AN
"AGGRIEVED PERSON" MAY MOVE TO SUPPRESS THE CONTENTS OF A WIRE OR ORAL
COMMUNICATION INTERCEPTED IN VIOLATION OF THE ACT.  TITLE III, OMNIBUS
CRIME CONTROL AND SAFE STREETS ACT OF 1968, 82 STAT. 221 (18 U.S.C.
2518(10)(A) (1964 ED., SUPP. IV)).  THE ACT'S LEGISLATIVE HISTORY
INDICATES THAT "AGGRIEVED PERSON," THE LIMITING PHRASE CURRENTLY FOUND
IN FED. RULE CRIM. PROC. 41(E), SHOULD BE CONSTRUED IN ACCORDANCE WITH
EXISTENT STANDING RULES.  SEE S. REP. NO. 1097, 90TH CONG., 2D SESS.,
AT 91, 106. 

/10/  IF THE POLICE ENTER A HOUSE PURSUANT TO A VALID WARRANT
AUTHORIZING THE SEIZURE OF SPECIFIED GAMBLING PARAPHERNALIA BUT
DISCOVER ILLEGAL NARCOTICS IN THE PROCESS OF THE SEACH, THE NARCOTICS
MAY BE SEIZED AND INTRODUCED IN EVIDENCE IN THE PROSECUTION OF THE
HOMEOWNER, WHETHER THE NARCOTICS BELONG TO HIM OR TO A THIRD PARTY. 
E.G., HARRIS V. UNITED STATES, 331 U.S. 145, 155 (1947), BUT IF THE
OFFICERS HAVE NEITHER A WARRANT NOR THE CONSENT OF THE HOUSEHOLDER, IT
IS ELEMENTARY FOURTH AMENDMENT LAW THAT THE NARCOTICS ARE SUPPRESSIBLE
ON HIS MOTION.  IN BOTH CASES, HOWEVER, THE HOMEOWNER'S INTEREST IN THE
NARCOTICS AND HIS STANDING TO OBJECT TO THEIR SEIZURE ARE THE SAME; AND
INSOFAR AS THE FOURTH AMENDMENT'S PROTECTION OF "EFFECTS" IS CONCERNED,
THE RIGHT OF THE OFFICER TO SEIZE THE CONTRABAND WITHOUT A WARRANT AND
USE IT IN EVIDENCE IS IDENTICAL.  THE REASON THAT THE NARCOTICS MAY BE
SEIZED AND INTRODUCED IN EVIDENCE IN THE FIRST CASE WHERE THERE WAS A
VALID WARRANT, IN SPITE OF THE HOUSEHOLDER'S INTEREST IN THE NARCOTICS
AND HIS STANDING TO OBJECT, BUT NOT IN THE SECOND CASE WHERE THERE WAS
NO WARRANT IS NOT THE SIMPLE REASON SUGGESTED BY MR. JUSTICE HARLAN
THAT THE HOUSEHOLDER HAS A PROPERTY INTEREST IN THE NARCOTICS AND
THEREFORE HAS "STANDING" TO OBJECT.  RATHER, IT IS BECAUSE IN THE FIRST
CASE THERE WAS NO ILLEGAL INVASION OF THE PREMISES, WHILE IN THE SECOND
THE OFFICER'S ENTRY AND SEARCH VIOLATED THE FOURTH AMENDMENT, THE
NARCOTICS BEING THE FRUIT OF THAT ILLEGALITY. 

/11/  MR. JUSTICE HARLAN WOULD ALSO DISTINGUISH BETWEEN THE
SITUATION WHERE A DOCUMENT BELONGING TO A THIRD PARTY AND CONTAINING
HIS OWN WORDS IS SEIZED FROM THE PREMISES OF ANOTHER WITHOUT A WARRANT
AND THE SITUATION WHERE THE THIRD PARTY'S WORDS ARE SPOKEN AND
OVERHEARD BY ELECTRONIC SURVEILLANCE.  UNDER THAT VIEW THE WORDS OF THE
THIRD PARTY WOULD BE ADMISSIBLE IN THE LATTER INSTANCE BUT NOT IN THE
FORMER.  WE WOULD EXCLUDE THE EVIDENCE IN BOTH CASES. 

SO ALSO WE DO NOT DISTINGUISH BETWEEN ELECTRONIC SURVEILLANCE WHICH
IS CARRIED OUT BY MEANS OF A PHYSICAL ENTRY AND SURVEILLANCE WHICH
PENETRATES A PRIVATE AREA WITHOUT A TECHNICAL TRESPASS.  THIS MUCH, WE
THINK, KATZ MAKES QUITE CLEAR.  IN EITHER CASE, OFFICIALDOM INVADES AN
AREA IN WHICH THE HOMEOWNER HAS THE RIGHT TO EXPECT PRIVACY FOR
HIMSELF, HIS FAMILY, AND HIS INVITEES, AND THE RIGHT TO OBJECT TO THE
USE AGAINST HIM OF THE FRUITS OF THAT INVASION, NOT BECAUSE THE RIGHTS
OF OTHERS HAVE BEEN VIOLATED, BUT BECAUSE HIS OWN WERE.  THOSE WHO
CONVERSE AND ARE OVERHEARD WHEN THE OWNER IS NOT PRESENT ALSO HAVE A
VALID OBJECTION UNLESS THE OWNER OF THE PREMISES HAS CONSENTED TO THE
SURVEILLANCE.  CF. MANCUSI V. DEFORTE, 392 U.S. 364, 367-370 (1968). 
THE FOURTH AMENDMENT PROTECTS REASONABLE EXPECTATIONS OF PRIVACY AND
DOES NOT PROTECT PERSONS ENGAGED IN CRIME FROM THE RISK THAT THOSE WITH
WHOM THEY ASSOCIATE OR CONVERSE WILL COOPERATE WITH THE GOVERNMENT. 
HOFFA V. UNITED STATES, 385 U.S. 293, 303 (1966). 

/12/  IT SEEMS THAT IN NONE OF THESE CASES WERE THERE INTRODUCED ANY
RECORDINGS, TRANSCRIPTS, OR OTHER EVIDENCE OF THE ACTUAL CONVERSATIONS
OVERHEARD BY ELECTRONIC SURVEILLANCE. 

/13/  THIS WOULD BE TRUE EVEN THOUGH THE MATERIAL ON ITS FACE
CONTAINED NO THREAT OF INJURY TO THE PUBLIC INTEREST OR NATIONAL
SECURITY, APPARENTLY BECAUSE IN THE GOVERNMENT'S VIEW, IT WOULD BE VERY
DIFFICULT TO DISTINGUISH BETWEEN THAT WHICH THREATENED AND THAT WHICH
DID NOT.  AS EXPLAINED BELOW, WE THINK SIMILAR DIFFICULTIES INHERE IN
DISTINGUISHING BETWEEN RECORDS WHICH ARE RELEVANT TO SHOWING TAINT AND
THOSE WHICH ARE NOT. 

/14/  IN BOTH THE VOLUME OF THE MATERIAL TO BE EXAMINED AND THE
COMPLEXITY AND DIFFICULTY OF THE JUDGMENTS INVOLVED, CASES INVOLVING
ELECTRONIC SURVEILLANCE WILL PROBABLY DIFFER MARKEDLY FROM THOSE
SITUATIONS IN THE CRIMINAL LAW WHERE IN CAMERA PROCEDURES HAVE BEEN
FOUND ACCEPTABLE TO SOME EXTENT.  DENNIS V. UNITED STATES, 384 U.S. 855
(1966) (DISCLOSURE OF GRAND JURY MINUTES SUBJECT TO IN CAMERA DELETION
OF "EXTRANEOUS MATERIAL"); PALERMO V. UNITED STATES, 360 U.S. 343, 354
(1959) (WHETHER THE JENCKS ACT, 18 U.S.C. 3500, REQUIRES DISCLOSURE OF
DOCUMENT TO THE DEFENSE); ROVIARO V. UNITED STATES, 353 U.S. 53 (1957)
(DISCLOSURE OF INFORMANT'S IDENTIFY).  IN THE DENNIS CASE THE COURT
NOTED THAT ORDINARILY "(TRIAL JUDGES OUGHT NOT BE BURDENED WITH THE
TASK OR THE RESPONSIBILITY OF EXAMINING SOMETIMES VOLUMINOUS GRAND JURY
TESTIMONY," AND THAT IT IS NOT "REALISTIC TO ASSUME THAT THE TRIAL
COURT'S JUDGMENT AS TO THE UTILITY OF MATERIAL FOR IMPEACHMENT OR OTHER
LEGITIMATE PURPOSES, HOWEVER CONSCIENTIOUSLY MADE, WOULD EXHAUST THE
POSSIBILITIES."  384 U.S.,AT 874-875. 

/15/  THE DISSENTS, IT SHOULD BE NOTED, WOULD REQUIRE TURNOVER OF
ARGUABLY RELEVANT MATERIAL, WHATEVER ITS IMPACT ON NATIONAL SECURITY
MIGHT BE.  TO THIS EXTENT THERE IS AGREEMENT THAT THE DEFENDANT'S
INTEREST IN EXCLUDING THE FRUITS OF ILLEGALLY OBTAINED EVIDENCE
ENTITLES HIM TO THE PRODUCT OF THE SURVEILLANCE.  GIVEN THIS BASIC
PROPOSITION, THE MATTER COMES DOWN TO A JUDGMENT AS TO WHETHER IN
CAMERA INSPECTION WOULD CHARACTERISTICALLY BE SUFFICIENTLY RELIABLE
WHEN NATIONAL SECURITY INTERESTS ARE AT STAKE.  ON THIS ISSUE, THE
MAJORITY AND THE DISSENTERS PART COMPANY.     /16/  THE CHIEF JUSTICE,
MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR. JUSTICE WHITE JOIN
THE ENTIRE OPINION OF THE COURT.  IN ADDITION, MR. JUSTICE HARLAN AND
MR. JUSTICE STEWART JOIN THE OPINION TO THE EXTENT THAT IT DENIES
STANDING TO CODEFENDANTS, COCONSPIRATORS, AND OTHERS WHOSE FOURTH
AMENDMENT RIGHTS HAVE NOT BEEN VIOLATED BY THE ELECTRONIC SURVEILLANCE
INVOLVED.  THE FOUR MEMBERS OF THE COURT JOINING THE ENTIRE OPINION
AGREE WITH THE OPINION IN RECOGNIZING THE HOUSEHOLDER'S STANDING TO
OBJECT TO EVIDENCE OBTAINED FROM AN UNAUTHORIZED ELECTRONIC
SURVEILLANCE OF HIS PREMISES EVEN WHERE HIS OWN CONVERSATIONS ARE NOT
OVERHEARD; MR. JUSTICE FORTAS CONCURS IN THE JUDGMENT TO THIS EXTENT. 
FINALLY, MR. JUSTICE STEWART, IN ADDITION TO THE FOUR MEMBERS OF THE
COURT JOINING THE ENTIRE OPINION, AGREES WITH PART III OF THE OPINION. 

MR. JUSTICE DOUGLAS, WHILE JOINING THE OPINION OF THE COURT, CONCURS
IN PART II OF THE OPINION OF MR. JUSTICE FORTAS AND WOULD HOLD THAT THE
PROTECTION OF THE FOURTH AMENDMENT INCLUDES ALSO THOSE AGAINST WHOM THE
INVESTIGATION IS DIRECTED. 

MR. JUSTICE STEWART.  I JOIN MR. JUSTICE HARLAN'S SEPARATE OPINION,
EXCEPT INSOFAR AS IT WOULD AUTHORIZE IN CAMERA PROCEEDINGS IN THE
IVANOV AND BUTENKO CASES.  I WOULD APPLY THE SAME STANDARDS TO ALL
THREE CASES NOW BEFORE US, AGREEING TO THAT EXTENT WITH THE OPINION OF
THE COURT. 

MR. JUSTICE BLACK DISSENTS, ADHERING TO HIS DISSENT IN KATZ V.
UNITED STATES, 389 U.S. 347, 364-374 (1967). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

THE COURT'S CAREFUL OPINION IS, I THINK, CONSTRUCTED ON A FAULTY
PREMISE, WHICH SUBSTANTIALLY UNDERMINES THE VALIDITY OF ITS ULTIMATE
CONCLUSIONS.  THE MAJORITY CONFRONTS THESE CASES AS IF EACH OF THE TWO
MAJOR PROBLEMS THEY RAISE CAN BE SOLVED IN ONE ONE OF TWO WAYS.  THE
COURT SEEMS TO ASSUME THAT EITHER THE TRADITIONAL STANDING DOCTRINE IS
TO BE EXPANDED OR THAT THE TRADITIONAL DOCTRINE IS TO BE MAINTAINED. 
AGAIN, IT IS ASSUMED THAT EITHER AN IN CAMERA DECISION IS TO BE MADE BY
THE JUDGE IN EVERY CASE OR THAT THERE IS TO BE AN AUTOMATIC TURNOVER OF
ALL CONVERSATIONS IN EVERY CASE.  I DO NOT BELIEVE, HOWEVER, THAT THE
RANGE OF CHOICE OPEN TO US ON EITHER IS RESTRICTED TO THE TWO
ALTERNATIVES THE COURT CONSIDERS.  ON BOTH ISSUES, THERE IS A THIRD
SOLUTION WHICH WOULD, IN MY VIEW, MORE SATISFACTORILY ACCOMMODATE THE
COMPETING INTERESTS AT STAKE. 

    I.

        STANDING. 

I AM IN SUBSTANTIAL AGREEMENT WITH THE REASONS THAT COURT HAS GIVEN
FOR REFUSING TO EXPAND THE TRADITIONAL STANDING DOCTRINE TO PERMIT A
FOURTH AMENDMENT CHALLENGE TO BE RAISED BY EITHER A CODEFENDANT OR A
COCONSPIRATOR.  /1/  BUT IT DOES NOT FOLLOW FROM THIS THAT WE MAY APPLY
THE TRADITIONAL STANDING RULES WITHOUT FURTHER ANALYSIS.  THE
TRADITIONAL RULES, AS THE MAJORITY CORRECTLY UNDERSTANDS THEM, WOULD
GRANT STANDING WITH REGARD TO (1) CONVERSATIONS IN WHICH THE ACCUSED
HIMSELF PARTICIPATED AND (2) ALL CONVERSATIONS OCCURRING ON THE
ACCUSED'S "PREMISES," REGARDLESS OF WHETHER HE PARTICIPATED IN THE
PARTICULAR CONVERSATION IN ANY WAY.  AS I HOPE TO SHOW, THE TRADITIONAL
RATIONALE FOR THIS SECOND RULE-- GRANTING STANDING TO THE PROPERTY
OWNER-- DOES NOT FIT A CASE INVOLVING THE INFRINGEMENT OF
CONVERSATIONAL PRIVACY.  MOREOVER, NO OTHER PERSUASIVE RATIONALE CAN BE
DEVELOPED IN SUPPORT OF THE PROPERTY OWNER'S RIGHT TO MAKE A FOURTH
AMENDMENT CLAIM AS TO CONVERSATIONS IN WHICH HE DID NOT HIMSELF
PARTICIPATE.  CONSEQUENTLY, I WOULD HOLD THAT, IN THE CIRCUMSTANCES
BEFORE US, STANDING SHOULD BE GRANTED ONLY TO THOSE WHO ACTUALLY
PARTICIPATED IN THE CONVERSATION THAT HAS BEEN ILLEGALLY OVERHEARD. 

A. 

THERE IS A VERY SIMPLE REASON WHY THE TRADITIONAL LAW OF STANDING
PERMITS THE OWNER OF THE PREMISES TO EXCLUDE A TANGIBLE OBJECT
ILLEGALLY SEIZED ON HIS PROPERTY, DESPITE THE FACT THAT HE DOES NOT OWN
THE PARTICULAR OBJECT TAKEN BY THE POLICE.  EVEN THOUGH HE DOES NOT
HAVE TITLE TO THE OBJECT, THE OWNER OF THE PREMISES IS IN POSSESSION OF
IT-- AND WE HAVE HELD THAT A PROPERTY INTEREST OF EVEN LESS SUBSTANCE
IS A SUFFICIENT PREDICATE FOR STANDING UNDER THE FOURTH AMENDMENT. 
JONES V. UNITED STATES, 362 U.S. 257 (1960).  /2/  THIS SIMPLE
RATIONALE DOES NOT, HOWEVER, JUSTIFY GRANTING STANDING TO THE PROPERTY
OWNER WITH REGARD TO THIRD-PARTY CONVERSATIONS.  THE ABSENT PROPERTY
OWNER DOES NOT HAVE A PROPERTY INTEREST OF ANY SORT IN A CONVERSATION
IN WHICH HE DID NOT PARTICIPATE.  THE WORDS THAT WERE SPOKEN ARE GONE
BEYOND RECALL.  /3/ 

CONSEQUENTLY, IN ORDER TO JUSTIFY THE TRADITIONAL RULE, ONE MUST
ARGUE, AS DOES THE MAJORITY, THAT THE OWNER OF THE PREMISES SHOULD BE
GRANTED STANDING BECAUSE THE BUGGED THIRD-PARTY CONVERSATIONS ARE
"FRUITS" OF THE POLICE'S INFRINGEMENT OF THE OWNER'S PROPERTY RIGHTS. 
THE "FRUITS" THEORY, HOWEVER, DOES NOT NECESSARILY FIT WHEN THE POLICE
OVERHEAR PRIVATE CONVERSATIONS IN VIOLATION OF THE FOURTH AMENDMENT. 
AS KATZ V. UNITED STATES, 389 U.S. 347, 352-353 (1967), SQUARELY HOLDS
THE RIGHT TO THE PRIVACY OF ONE'S CONVERSATION DOES NOT HINGE ON
WHETHER THE GOVERNMENT HAS COMMITTED A TECHNICAL TRESPASS UPON THE
PREMISES ON WHICH THE CONVERSATIONS TOOK PLACE.  OLMSTEAD V. UNITED
STATES, 277 U.S. 438 (1928), IS NO LONGER THE LAW.  IF IN FACT THERE
HAS BEEN NO TRESPASS UPON THE PREMISES, I DO NOT UNDERSTAND HOW
TRADITIONAL THEORY PERMITS THE OWNER TO COMPLAIN IF A CONVERSATION IS
OVERHEARD IN WHICH HE DID NOT PARTICIPATE.  CERTAINLY THE OWNER CANNOT
SUPPRESS RECORDS OF SUCH CONVERSATIONS ON THE GROUND THAT THEY ARE THE
"FRUITS" OF AN UNCONSTITUTIONAL INVASION OF HIS PROPERTY RIGHTS.  SEE
GOLDMAN V. UNTIED STATES, 316 U.S. 129, 135-136 (1942). 

IT IS TRUE, OF COURSE, THAT THE "FRUITS" THEORY WOULD REQUIRE A
DIFFERENT RESULT IF THE POLICE USED A LISTENING DEVICE WHICH DID
PHYSICALLY TRESPASS UPON THE ACCUSED'S PREMISES.  BUT THE FACT THAT
THIS THEORY DEPENDS COMPLETELY ON THE PRESENCE OR ABSENCE OF A
TECHNICAL TRESPASS ONLY SERVES TO SHOW THAT THE ENTIRE THEORETICAL
BASIS OF STANDING LAW MUST BE RECONSIDERED IN THE AREA OF
CONVERSATIONAL PRIVACY.  FOR WE HAVE NOT BURIED OLMSTEAD, SO FAR AS IT
DEALT WITH THE SUBSTANCE OF FOURTH AMENDMENT RIGHTS, ONLY TO GIVE IT
NEW LIFE IN THE LAW OF STANDING.  INSTEAD, WE SHOULD REJECT TRADITIONAL
PROPERTY CONCEPTS ENTIRELY, AND REINTERPRET STANDING LAW IN THE LIGHT
OF THE SUBSTANTIVE PRINCIPLES DEVELOPED IN KATZ.  STANDING SHOULD BE
GRANTED TO EVERY PERSON WHO PARTICIPATES IN A CONVERSATION HE
LEGITIMATELY EXPECTS WILL REMAIN PRIVATE-- FOR IT IS SUCH PERSONS THAT
KATZ PROTECTS.  /4/  ON THE OTHER HAND, PROPERTY OWNERS SHOULD NOT BE
PERMITTED TO ASSERT A FOURTH AMENDMENT CLAIM IN THIS AREA IF WE ARE TO
RESPECT THE PRINCIPLE, WHOSE VITALITY THE COURT HAS NOW ONCE AGAIN
REAFFIRMED, WHICH ESTABLISHES "THE GENERAL RULE THAT FOURTH AMENDMENT
RIGHTS ARE PERSONAL RIGHTS WHICH . . . MAY NOT BE VICARIOUSLY
ASSERTED."  ANTE, AT 174.  FOR GRANTING PROPERTY OWNERS STANDING DOES
NOT PERMIT THEM TO VINDICATE INTRUSIONS UPON THEIR OWN PRIVACY, BUT
SIMPLY PERMITS CRIMINAL DEFENDANTS TO INTRUDE INTO THE PRIVATE LIVES OF
OTHERS. 

THE FOLLOWING HYPOTHETICAL SUGGESTS THE PARADOXICAL QUALITY OF THE
COURT'S RULE.  IMAGINE THAT I OWN AN OFFICE BUILDING AND PERMIT A
FRIEND OF MINE, SMITH, TO USE ONE OF THE VACANT OFFICES WITHOUT
CHARGE.  SMITH USES THE OFFICE TO HAVE A PRIVATE TALK WITH A THIRD
PERSON, JONES.  THE NEXT DAY, I ASK MY FRIEND TO TELL ME WHAT JONES HAD
SAID IN THE OFFICE I HAD GIVEN HIM.  SMITH REPLIES THAT THE
CONVERSATION WAS PRIVATE, AND THAT WHAT WAS SAID WAS "NONE OF YOUR
BUSINESS."  CAN IT BE THAT I COULD PROPERLY FEEL AGGRIEVED BECAUSE THE
CONVERSATION OCCURRED ON MY PROPERTY?  IT WOULD MAKE NO SENSE IF I WERE
TO REPLY TO SMITH:  "MY PRIVACY HAS BEEN INFRINGED IF YOU DO NOT TELL
ME WHAT WAS SAID, FOR I OWN THE PROPERTY."  IT IS PRECISELY THE OTHER
WAY AROUND-- SMITH IS TELLING ME THAT WHEN HE AND JONES HAD TALKED
TOGETHER, THEY HAD A LEGITIMATE EXPECTATION THAT THEIR CONVERSATION
WOULD REMAIN SECRET, EVEN FROM ME AS THE PROPERTY OWNER. 

NOW SUPPOSE THAT I HAD PLACED A LISTENING DEVICE IN THE OFFICE I HAD
GIVEN TO SMITH, WITHOUT TELLING HIM.  COULD ANYONE DOUBT THAT I WOULD
BE GUILTY OF AN OUTRAGEOUS VIOLATION OF THE PRIVACY OF SMITH AND JONES
IF I THEN LISTENED TO WHAT THEY HAD SAID?  IT WOULD BE LUDICROUS TO
DEFEND MY CONDUCT ON THE GROUND THAT I, AFTER ALL, WAS THE OWNER OF THE
OFFICE BUILDING.  THE CASE DOES NOT STAND DIFFERENTLY IF I AM ACCUSED
OF A CRIME AND DEMAND THE RIGHT TO HEAR THE SMITH-JONES CONVERSATION
WHICH THE POLICE HAD MONITORED.  THE GOVERNMENT DOUBTLESS HAS VIOLATED
THE PRIVACY OF SMITH AND JONES, BUT THEIR PRIVACY WOULD BE VIOLATED
FURTHER IF THE CONVERSATION WERE ALSO MADE AVAILABLE TO ME.  /5/ 

IN THE FIELD OF CONVERSATIONAL PRIVACY, THE FOURTH AMENDMENT
PROTECTS PERSONS, NOT PLACES.  SEE KATZ V. UNITED STATES, 389 U.S. 347,
351 (1967).  AND A MAN CAN ONLY BE IN ONE PACE AT ONE TIME.  IF THE
PRIVACY OF HIS CONVERSATION IS RESPECT AT THAT PLACE, HE MAY ENGAGE IN
ALL THOSE ACTIVITIES FOR WHICH THAT PRIVACY IS AN ESSENTIAL
PREREQUISITE.  HIS PRIVACY IS NOT AT ALL DISTURBED BY THE FACT THAT
OTHER PEOPLE IN OTHER PLACES CANNOT SPEAK WITHOUT THE FEAR OF BEING
OVERHEARD.  THAT FACT MAY BE PROFOUNDLY DISTURBING TO THE MAN WHOSE
PRIVACY REMAINS INTACT.  BUT IT REMAINS A FACT ABOUT OTHER PEOPLE'S
PRIVACY.  TO PERMIT A CRIMINAL DEFENDANT TO COMPLAIN ABOUT SUCH
INTRUSIONS IS TO PERMIT THE VICARIOUS ASSERTION OF FOURTH AMENDMENT
RIGHTS-- A STEP WHICH I DECLINE TO TAKE IN RELATION TO PROPERTY OWNERS
FOR MUCH THE SAME REASONS AS THOSE WHICH HAVE IMPELLED THE COURT TO
DENY STANDING TO COCONSPIRATORS. 

IN REJECTING THE "PROPERTY" RULE ADVANCED BY THE COURT, I DO NOT
MEAN TO SUGGEST THAT STANDING MAY NEVER PROPERLY BE GRANTED TO PERMIT
THE VICARIOUS ASSERTION OF FOURTH AMENDMENT RIGHTS.  WHILE IT IS
ARGUABLE THAT AN INDIVIDUAL SHOULD BE PERMITTED TO RAISE A
CONSTITUTIONAL CLAIM WHEN THE PRIVACY OF MEMBERS OF HIS FAMILY HAS BEEN
VIOLATED, I NEED NOT REACH THIS QUESTION ON THE FACTS OF THE CASES
BEFORE US.  IT MUST BE NOTED, HOWEVER, THAT EVEN IF THIS COURT
RECOGNIZED A MAN'S RIGHT TO PROTEST WHENEVER THE PRIVACY OF HIS FAMILY
WAS INFRINGED, THE LINES THE MAJORITY DRAWS TODAY WOULD STILL SEEM
EXTREMELY ARBITRARY.  UNDER THE PREVAILING "PROPERTY" RULE, FOR
EXAMPLE, A HUSBAND GENERALLY CANNOT COMPLAIN IF THE POLICE OVERHEAR HIS
WIFE TALKING AT HER OFFICE OR IN A PUBLIC PHONE BOOTH, CF. KATZ V.
UNITED STATES, SUPRA, ALTHOUGH HE CAN COMPLAIN WHEN THE POLICE OVERHEAR
HER TALKING AT HOME.  YET SURELY THE HUSBAND'S INTEREST IN HIS WIFE'S
PRIVACY IS EQUALLY WORTH OF RESPECT IN ALL THREE CASES.  IF STANDING IS
TO BE EXTENDED TO PROTECT A PERSON'S INTEREST IN HIS FAMILY'S PRIVACY,
AN INDIVIDUAL SHOULD BE PERMITTED TO MAKE A CONSTITUTIONAL CLAIM
WHENEVER A FAMILY MEMBER'S REASONABLE EXPECTATION OF PRIVACY HAS BEEN
INFRINGED, REGARDLESS OF THE PLACE WHERE HIS PRIVACY WAS INVADED. 
INDEED, THE COURT'S EMPHASIS ON PROPERTY OWNERSHIP COULD WELL MEAN THAT
A HUSBAND, AS OWNER OF A PARTICULAR PROPERTY, IS ENTITLED TO COMPLAIN
AS TO A VIOLATION OF HIS WIFE'S PRIVACY, BUT THAT THE WIFE COULD NOT
COMPLAIN AS TO THE UNLAWFUL SURVEILLANCE OF HER HUSBAND SINCE SHE DID
NOT HAVE A SUFFICIENTLY SUBSTANTIAL INTEREST IN THE PROPERTY ON WHICH
THE INTRUSION OCCURRED.  IN CONTRAST, IF A PERFECT STRANGER IS
OVERHEARD ON ONE'S PROPERTY, STANDING IS ESTABLISHED.  IN SUM, I SIMPLY
CANNOT DISCERN A COHERENT POLICY BEHIND THE COURT'S SOLICITUDE FOR
PROPERTY INTERESTS IN THIS AREA. 

        B. 

THE COURT'S LENGTHY DISCUSSION OF MY POSITION LOSES SIGHT OF THE
BASIC JUSTIFICATION FOR THE NARROWER STANDING RULE I HAVE ADVANCED.  TO
RECAPITULATE, IT IS MY CENTRAL AIM TO SHOW THAT THE RIGHT TO
CONVERSATIONAL PRIVACY IS A PERSON RIGHT, NOT A PROPERTY RIGHT.  IT
FOLLOWS FROM THIS THAT THE COURT'S RULE PERMITS PROPERTY OWNERS TO
ASSERT VICARIOUSLY THE PERSONAL RIGHTS OF OTHERS.  INDEED, GRANTING
STANDING TO PROPERTY OWNERS COMPROMISES THE PERSONAL PRIVACY OF
OTHERS. 

THE COURT'S RESPONSE SEEMS TO BE THAT THE FOURTH AMENDMENT PROTECTS
"HOUSES" AS WELL AS "PERSONS."  BUT THIS IS SIMPLY TO TREAT PRIVATE
CONVERSATIONS AS IF THEY WERE PIECES OF TANGIBLE PROPERTY.  SINCE AN
INDIVIDUAL CANNOT CARRY HIS POSSESSION WITH HIM WHEREVER HE GOES, THE
FOURTH AMENDMENT PROTECTS A PERSON'S "HOUSE" SO THAT HIS PERSONAL
POSSESSIONS MAY BE KEPT OUT OF THE GOVERNMENT'S EASY REACH.  IN
CONTRACT, A MAN MUST NECESSARILY CARRY HIS VOICE AROUND WITH HIM, AND
CANNOT LEAVE IT AT HOME EVEN IF HE WISHES.  WHEN A MAN IS NOT AT HOME,
HE CANNOT CONVERSE THERE.  THERE IS THUS NO NEED TO PROTECT A MAN'S
"HOUSE" IN ORDER TO PROTECT HIS RIGHT TO ENGAGE IN PRIVATE
CONVERSATION.  CONSEQUENTLY, THE COURT HAS NOT INCREASED THE SCOPE OF
AN ACCUSED'S PERSONAL PRIVACY BY HOLDING THAT THE POLICE HAVE
UNCONSTITUTIONALLY INVADED HIS "HOUSE" BY PUTTING A "BUG" THERE. 
HOUSES DO NOT SPEAK; ONLY PEOPLE DO.  THE POLICE HAVE VIOLATED ONLY THE
PRIVACY OF THOSE PERSONS WHOSE CONVERSATIONS ARE OVERHEARD. 

I ENTIRELY AGREE, HOWEVER, THAT IF THE POLICE SEE A PERSON'S TANGIBLE
PROPERTY WHILE COMMITTING THEIR TRESPASS, THEY MAY NOT CONSTITUTIONALLY
USE THIS KNOWLEDGE EITHER TO OBTAIN A SEARCH WARRANT OR TO GAIN A
CONVICTION.  SINCE A MAN HAS NO CHOICE BUT TO LEAVE THE BULK OF HIS
PHYSICAL POSSESSIONS IN HIS "HOUSE," THE FOURTH AMENDMENT MUST PROTECT
HIS "HOUSE" IN THIS WAY OR ELSE THE IMMUNITY OF HIS PERSONAL
POSSESSIONS FROM ARBITRARY SEARCH COULD NOT BE ASSURED.  THUS IF AN
INDIVIDUAL'S PERSONAL POSSESSIONS ARE TO BE PROTECTED AT ALL, THEY MUST
BE PROTECTED IN HIS HOUSE; BUT A PERSON'S PRIVATE CONVERSATIONS ARE
PROTECTED AS MUCH AS IS POSSIBLE WHEN HE CAN COMPLAIN AS TO ANY
CONVERSATION IN WHICH HE PERSONALLY PARTICIPATED.  TO GO FURTHER AND
PROTECT OTHER CONVERSATIONS OCCURRING ON HIS PROPERTY IS SIMPLY TO GIVE
THE HOUSEHOLDER THE RIGHT TO COMPLAIN AS TO THE GOVERNMENT'S TREATMENT
OF OTHERS.              C. 

WHILE THE COURT GRANTS SPECIAL STANDING RIGHTS TO PROPERTY OWNERS,
IT REFUSES TO REACH THE QUESTION WHETHER EMPLOYEES, BUSINESS VISITORS,
SOCIAL GUESTS, AND OTHER PERSONS WITH LESS SUBSTANTIAL PROPERTY
INTERESTS ARE ALSO ENTITLED TO SPECIAL STANDING PRIVILEGES.  YET THIS
QUESTION WILL BE PRESENTED TO THE DISTRICT COURT ON REMAND IN THE
ALDERISIO CASE, /6/  AND IT WILL DOUBTLESS BE AN ISSUE IN MANY OF THE
OTHER CASES NOW ON OUR DOCKET WHICH WE WILL REMAND FOR RECONSIDERATION
IN THE LIGHT OF OUR DECISION TODAY.  WHILE A DEFINITIVE SOLUTION TO
THIS PROBLEM IS OBVIOUSLY PREMATURE, THE COURT'S FAILURE TO GIVE THE
LOWER COURTS ANY GUIDANCE WHATEVER ON THIS POINT WILL RESULT IN
WIDESPREAD CONFUSION AS TRIAL JUDGES THROUGHOUT THE LAND ATTEMPT TO
DIVINE THE RATIONALE BEHIND THE PROPERTY RULE ESTABLISHED TODAY. 
CONFUSION WILL BE COMPOUNDED BY OUR OWN PAST DECISIONS WHICH HAVE
PRECISELY REJECTED THE NOTION THAT THE ACCUSED MUST NECESSARILY HAVE A
POSSESSORY INTEREST IN THE PREMISES BEFORE HE MAY ASSERT A FOURTH
AMENDMENT CLAIM.  SEE UNITED STATES V. JEFFERS, 342 U.S. 48 (1951);
JONES V. UNITED STATES, 362 U.S. 257 (1960); MANCUSI V. DEFORTE, 392
U.S. 364 (1968).  BUT IT WILL NOT DO SIMPLY TO INCORPORATE THE STANDING
LAW DEVELOPED IN THOSE CASES IN AN EFFORT TO SOLVE THE PROBLEM BEFORE
US.  FOR OUR PAST DECISIONS INVOLVED SITUATIONS IN WHICH THE POLICE
SEARCH WAS DIRECTED AGAINST THE INDIVIDUAL SEEKING TO INVOKE THE FOURTH
AMENDMENT.  HERE, HOWEVER, THE QUESTION IS WHETHER AN INDIVIDUAL MAY
HEAR THE CONVERSATIONS OF THIRD PARTIES.  /7/  IF, FOR EXAMPLE, IT
DEVELOPS AT THE HEARING THAT PETITIONER ALDERISIO SIMPLY HAD A BARE
RIGHT TO REMAIN ON THE BUSINESS PREMISES THAT WERE BUGGED, CF. JONES V.
UNITED STATES, SUPRA, IT SURELY COULD NOT BE ARGUED THAT HIS PRIVACY
HAD BEEN INFRINGED EVEN THOUGH HE HAD NOT BEEN PERSONALLY INVOLVED IN
ANY OF THE CONVERSATIONS THAT HAD BEEN OVERHEARD.  THE COURT SEEMS DUTY
BOUND TO MAKE AT LEAST THIS MUCH CLEAR.  /8/

        II.

IN CAMERA PROCEEDINGS. 

WHILE I WOULD HOLD THAT PROPERTY OWNERS HAVE NO RIGHT AS SUCH TO
HEAR CONVERSATIONS IN WHICH THEY WERE NOT PARTICIPANTS, IT APPEARS TO
ME THAT AT A MINIMUM THE COURT SHOULD ADOPT THE GOVERNMENT'S SUGGESTED
JUDICIAL SCREENING PROCEDURE WITH REGARD TO THIRD-PARTY CONVERSATIONS. 
PROPERTY OWNERS SHOULD NOT BE PERMITTED TO INTRUDE INTO THE PRIVATE
LIVES OF OTHERS UNLESS A TRIAL JUDGE DETERMINES THAT THE CONVERSATION
AT ISSUE IS AT LEAST ARGUABLY RELEVANT TO THE PENDING PROSECUTION. 

ON THE OTHER HAND, I WOULD AGREE THAT IN THE TYPICAL CASE, THE
PROSECUTION SHOULD BE REQUIRED TO HAND OVER THE RECORDS OF ALL
CONVERSATIONS IN WHICH THE ACCUSED PLAYED A PART.  SINCE THE OTHER
PARTIES TO THESE CONVERSATIONS KNEW THEY WERE TALKING TO THE ACCUSED,
THEY CAN HARDLY HAVE AN IMPORTANT INTEREST IN CONCEALING FROM WHAT THEY
SAID TO HIM.  WHATEVER RISK OF UNAUTHORIZED DISCLOSURE IS INVOLVED MAY
GENERALLY BE MINIMIZED EVEN FURTHER BY THE ISSUANCE OF APPROPRIATE
PROTECTIVE ORDERS.  FED. RULE CRIM. PROC. 16(E). 

THERE IS, HOWEVER, AT LEAST ONE CLASS OF CASES IN WHICH THE STANDARD
CONSIDERATIONS DO NOT APPLY.  I REFER TO THE SITUATIONS EXEMPLIFIED BY
IVANOV AND BUTENKO, IN WHICH THE DEFENDANT IS CHARGED, UNDER ONE
STATUTE OR ANOTHER, WITH SPYING FOR A FOREIGN POWER.  IN CONTRAST TO
THE TYPICAL SITUATION, HERE THE ACCUSED MAY LEARN IMPORTANT NEW
INFORMATION EVEN IF THE TURNOVER IS LIMITED TO CONVERSATIONS IN WHICH
HE WAS A PARTICIPANT.  FOR EXAMPLE, HE MAY LEARN THE LOCATION OF A
LISTENING DEVICE-- A FACT THAT MAY BE OF CRUCIAL SIGNIFICANCE IN
ESPIONAGE WORK.  MOREOVER, HE WILL BE ENTITLED TO LEARN THIS FACT EVEN
THOUGH A VALID WARRANT HAS SUBSEQUENTLY BEEN ISSUED AUTHORIZING
ELECTRONIC SURVEILLANCE AT THE SAME LOCATION.  SIMILARLY, THE ACCUSED
MAY FIND OUT THAT THE UNITED STATES HAS OBTAINED CERTAIN INFORMATION
THAT HIS FOREIGN GOVERNMENT BELIEVES IS STILL SECRET, EVEN WHEN OUR
GOVERNMENT HAS ALSO RECEIVED THIS INFORMATION FROM AN INDEPENDENT
SOURCE IN A CONSTITUTIONAL WAY.  AND HE MAY LEARN THAT THOSE IN WHOM HE
HAS BEEN REPOSING CONFIDENCE ARE IN FACT AMERICAN UNDERCOVER AGENTS. 

EVEN MORE IMPORTANT, THERE IS MUCH LESS REASON TO BELIEVE THAT A
PROTECTIVE COURT ORDER WILL EFFECTIVELY DETER THE DEFENDANT IN AN
ESPIONAGE CASE FROM TURNING OVER THE NEW INFORMATION HE HAS RECEIVED TO
THOSE WHO ARE NOT ENTITLED TO IT.  FOR IN AN ESPIONAGE CASE, THE
DEFENDANT IS SOMEONE THE GRAND JURY HAS FOUND IS LIKELY TO HAVE PASSED
SECRETS TO A FOREIGN POWER.  IT IS ONE THING TO BELIEVE THAT THE NORMAL
CRIMINAL DEFENDANT WILL REFUSE TO PASS ON INFORMATION IF THREATENED
WITH SEVERE PENALTIES FOR UNAUTHORIZED DISCLOSURE.  IT IS QUITE A
DIFFERENT THING TO BELIEVE THAT A DEFENDANT WHO IS PROBABLY A SPY WILL
NOT PASS ON TO THE FOREIGN POWER ANY ADDITIONAL INFORMATION HE HAS
RECEIVED. 

MOREOVER, APART FROM THE SENSE OF FAIR PLAY OF MOST JUDGES,
ADDITIONAL SAFEGUARDS COULD BE DEVISED WHICH WOULD ASSURE THAT AN IN
CAMERA PROCEDURE WOULD BE USED ONLY WHEN AN UNAUTHORIZED DISCLOSURE
PRESENTS A SUBSTANTIAL RISK TO THE NATIONAL SECURITY.  AS IN THE
SOMEWHAT ANALOGOUS SITUATION IN WHICH THE GOVERNMENT ATTEMPTS TO INVOKE
A NATIONAL SECURITY PRIVILEGE IN A CIVIL ACTION IN ORDER TO TRIGGER AN
IN CAMERA PROCEEDING, THERE SHOULD "BE A FORMAL CLAIM OF PRIVILEGE,
LODGED BY THE HEAD OF THE DEPARTMENT WHICH HAS CONTROL OVER THE MATTER,
AFTER ACTUAL PERSONAL CONSIDERATION BY THAT OFFICER."  UNITED STATES V.
REYNOLDS, 345 U.S. 1, 7-8 (1953).  INDEED, I WOULD GO EVEN FURTHER THAN
DID THE COURT IN REYNOLDS AND LAY UPON TRIAL JUDGES THE AFFIRMATIVE
DUTY OF ASSURING THEMSELVES THAT THE NATIONAL SECURITY INTERESTS
CLAIMED TO JUSTIFY AN IN CAMERA PROCEEDING ARE REAL AND NOT MERELY
COLORABLE. 

THE COURT'S FAILURE TO CONSIDER THE SPECIAL CHARACTERISTICS OF THE
IVANOV AND BUTENKO CASES IS PARTICULARLY SURPRISING IN THE LIGHT OF THE
REASONS IT GIVES FOR CREATING AN ABSOLUTE RULE IN FAVOR OF AN AUTOMATIC
TURNOVER.  FOR THE MAJORITY PROPERLY RECOGNIZES THAT ITS PREFERENCE FOR
A FULL ADVERSARY HEARING CANNOT BE JUSTIFIED BY AN EASY REFERENCE TO AN
ABSOLUTE PRINCIPLE CONDEMNING IN CAMERA JUDICIAL DECISIONS IN ALL
SITUATIONS.  INDEED, THIS COURT HAS EXPRESSLY AUTHORIZED THE USE OF
SUCH PROCEDURES IN CLOSELY RELATED AREAS INVOLVING THE VINDICATION OF
FOURTH AMENDMENT RIGHTS.  SEE ROVIARO V. UNITED STATES, 353 U.S. 53
(1957); MCCRAY V. ILLINOIS, 386 U.S. 300, 309-313 (1967).  IF, AS IN
THE COURT RIGHTLY STATES, THE PROPRIETY OF AN IN CAMERA SCREENING
PROCEDURE IS A "MATTER OF JUDGMENT," ANTE, AT 182, DEPENDING ON AN
INFORMED CONSIDERATION OF ALL THE COMPETING FACTORS, I DO NOT
UNDERSTAND WHY THE TRIAL JUDGE SHOULD NOT BE AUTHORIZED TO CONSIDER
WHETHER THE ACCUSED SIMPLY CANNOT BE TRUSTED TO KEEP THE GOVERNMENT'S
RECORDS CONFIDENTIAL.  NOR DO I UNDERSTAND WHY THE GOVERNMENT MUST BE
CONFRONTED WITH THE CHOICE OF DISMISSING THE INDICTMENT OR DISCLOSING
THE INFORMATION BECAUSE THE ACCUSED CANNOT BE COUNTED ON TO KEEP FAITH
WITH THE COURT.  /9/  MOREOVER, IT IS NOT DIFFICULT TO IMAGINE CASES IN
WHICH THE DANGER OF UNAUTHORIZED DISCLOSURE OF IMPORTANT INFORMATION
WOULD CLEARLY OUTWEIGH THE RISK THAT AN ERROR MAY BE MADE BY THE TRIAL
JUDGE IN DETERMINING WHETHER A PARTICULAR CONVERSATION IS ARGUABLY
RELEVANT TO THE PENDING PROSECUTION.  IT MAY WELL BE, FOR EXAMPLE, THAT
THE NUMBER OF CONVERSATIONS AT ISSUE IS VERY SMALL.  YET THOUGH THE
COURT ITSELF RECOGNIZES THAT "THE NEED FOR ADVERSARY INQUIRY IS
INCREASED BY THE COMPLEXITY OF THE ISSUES PRESENTED FOR ADJUDICATION,"
ANTE, AT 184, IT NEVERTHELESS LEAVES NO ROOM FOR AN INFORMED DECISION
BY THE TRIAL JUDGE THAT THE RISK OF ERROR ON THE FACTS OF A GIVEN CASE
IS INSUBSTANTIAL.  SINCE THE NUMBER OF ESPIONAGE CASES IS SMALL, THERE
IS NO CHANCE WHATEVER THAT THESE DECISIONS WILL BE MADE IN A HURRIED
FASHION OR THAT THEY WILL NOT BE SUBJECTED TO THE MOST SEARCHING
SCRUTINY ON APPEAL.  OF COURSE, IF ANY OF THE CONVERSATIONS SHOULD BE
FOUND ARGUABLY RELEVANT, THEIR DISCLOURE SHOULD BE REQUIRED BEFORE THE
PROSECUTION IS PERMITTED TO CONTINUE. 

IN SUM, I WOULD REQUIRE THE GOVERNMENT TO TURN OVER TO ALDERMAN AND
ALDERISIO ONLY THE RECORDS OF THOSE CONVERSATIONS IN WHICH EACH
DEFENDANT PARTICIPATED, AND I WOULD LEAVE THE WAY OPEN FOR A
PRELIMINARY IN CAMERA SCREENING PROCEDURE IN THE IVANOV AND BUTENKO
CASES. 

/1/  I ALSO AM UNABLE TO ACCEPT MY BROTHER FORTAS' SUGGESTION THAT
STANDING BE ACCORDED TO ANY DEFENDANT WHO CAN SHOW THAT AN ILLEGAL
SEARCH OR SEIZURE WAS DIRECTED AGAINST HIM.  AS MY BROTHER FORTAS
HIMSELF RECOGNIZES IN STOPPING SHORT OF AN EXTREME POSITION THAT
REJECTS ALL STANDING LIMITATIONS, A PROPER DECISION ON THIS ISSUE
CANNOT ONLY CONSIDER THE FACT THAT A BROADENED STANDING RULE MAY ADD
MARGINALLY TO THE IMPACT OF THE EXCLUSIONARY RULE ON UNCONSTITUTIONAL
POLICE CONDUCT.  RATHER, ONE MUST ALSO CONSIDER THAT MY BROTHER FORTAS'
RULE PERMITS A DEFENDANT TO INVADE THE PRIVACY OF OTHERS TO HEAR
CONVERSATIONS IN WHICH HE DID NOT PARTICIPATE.  MOREOVER, THE RULE
WOULD ENTAIL VERY SUBSTANTIAL ADMINISTRATIVE DIFFICULTIES.  IN THE
MAJORITY OF CASES, I WOULD IMAGINE THAT THE POLICE PLANT A BUG WITH THE
EXPECTATION THAT IT MAY WELL PRODUCE LEADS TO A LARGE NUMBER OF
CRIMES.  A LENGTHY HEARING WOULD, THEN, APPEAR TO BE NECESSARY IN ORDER
TO DETERMINE WHETHER THE POLICE KNEW OF AN ACCUSED'S CRIMINAL ACTIVITY
AT THE TIME THE BUG WAS PLANTED AND WHETHER THE POLICE DECISION TO
PLANT A BUG WAS MOTIVATED BY AN EFFORT TO OBTAIN INFORMATION AGAINST
THE ACCUSED OR SOME OTHER INDIVIDUAL.  I DO NOT BELIEVE THAT THIS
ADMINISTRATIVE BURDEN IS JUSTIFIED IN ANY SUBSTANTIAL DEGREE BY THE
HYPOTHESIZED MARGINAL INCREASE IN FOURTH AMENDMENT PROTECTION. 

/2/  THE COURT SUGGESTS, ANTE, AT 177, N. 10, THAT I AM WRONG IN
FINDING THAT THE TRADITIONAL GRANT OF STANDING TO THE PROPERTY OWNER
MAY PROPERLY BE GROUNDED ON THE SIMPLE FACT OF THE OWNER'S DOMINION
OVER ALL PHYSICAL OBJECTS ON HIS PREMISES.  THE MAJORITY ARGUES THAT
EVEN THOUGH A PARTICULAR OBJECT (SAY A PACKET OF NARCOTICS) IS NOT
DESCRIBED IN A VALID SEARCH WARRANT, IT MAY NEVERTHELESS BE SEIZED IF
THE POLICE FIND THE NARCOTICS IN THEIR SEARCH FOR THE OTHER EVIDENCE OF
CRIME.  IT FOLLOWS FROM THIS, SAYS THE COURT, THAT THE HOUSEHOLDER'S
POSSESSORY INTEREST IN THE SEIZED PROPERTY IS NOT A SUFFICIENT BASIS
FOR STANDING.  BUT THIS ARGUMENT IGNORES THE FACT THAT AN ACCUSED MAY
HAVE STANDING TO RAISE A FOURTH AMENDMENT CLAIM AND YET LOSE ON THE
MERITS.  IN THE CASE THE COURT HYPOTHESIZES, THE HOUSEHOLDER HAS
STANDING BECAUSE HE HAS LOST POSSESSION OF AN OBJECT FORMERLY UNDER HIS
CONTROL.  HOWEVER, HE LOSES ON THE MERITS BECAUSE THE POLICE SEIZURE
WAS REASONABLE UNDER THE CIRCUMSTANCES. 

/3/  THUS, UNLIKE THE COURT, I FIND IT QUITE EASY TO DISTINGUISH
"BETWEEN THE SITUATION WHERE A DOCUMENT BELONGING TO A THIRD PARTY AND
CONTAINING HIS OWN WORDS IS SEIZED FROM THE PREMISES OF ANOTHER WITHOUT
A WARRANT AND THE SITUATION WHERE THE THIRD PARTY'S WORDS ARE SPOKEN
AND OVERHEARD BY ELECTRONIC SURVEILLANCE."  ANTE, AT 179, N. 11.  WHILE
THE ABSENT OWNER CAN READ THE DOCUMENT WHEN HE RETURNS TO HIS HOME, HE
CANNOT SUMMON BACK THE WORDS THAT WERE SPOKEN IN HIS ABSENCE.  IN THE
ONE CASE, THE OWNER IS PERSONALLY AGGRIEVED BY THE POLICE ACTION; IN
THE OTHER CASE, HE IS NOT. 

/4/  IT SEEMS CLEAR THAT, UNDER THE KATZ RATIONALE, A PERSON IS
PERSONALLY AGGRIEVED BY ELECTRONIC SURVEILLANCE NOT ONLY WHEN HE IS
ACTUALLY SPEAKING BUT ALSO WHEN HE IS LISTENING TO THE CONFIDENCES OF
OTHERS. 

/5/  THIS IS NOT TO SAY, OF COURSE, THAT THE PROPERTY OWNER COULD
NOT BRING A CIVIL ACTION TO HAVE THE ILLEGAL LISTENING DEVICE REMOVED
FROM HIS PREMISES.  HE SIMPLY COULD NOT HEAR WHAT THE LISTENING DEVICE
HAD RECORDED, IF NONE OF HIS OWN CONVERSATIONS HAD BEEN OVERHEARD. 

/6/  AS THE COURT POINTS OUT, ANTE, AT 168, N. 1, THE GOVERNMENT
DENIES THAT ELECTRONIC SURVEILLANCE TOOK PLACE ON PROPERTY OWNED BY
ALDERISIO.  RATHER, THE PREMISES WERE OWNED EITHER BY FIRMS WHICH
EMPLOYED ALDERISIO OR BY "BUSINESS ASSOCIATES." 

/7/  I HAVE NOT THOUGHT IT NECESSARY TO DEAL WITH THE SUBSIDIARY
QUESTION OF THE STANDING OF ANY OF THESE PETITIONERS TO CHALLENGE AT
TRIAL ANY EVIDENCE SUBMITTED AGAINST THEM THAT IS ALLEGED TO BE A FRUIT
OF A BUGGED CONVERSATION IN WHICH THEY PARTICIPATED.  I AGREE THAT THIS
IS A QUESTION THAT SHOULD BE LEFT TO THE DISTRICT COURT FOR
DETERMINATION IN THE FIRST INSTANCE AT THE HEARING ON REMAND. 

/8/  AS THE COURT'S JUSTIFICATION OF ITS "PROPERTY" RULE SEEMS TO
CENTER EXCLUSIVELY ON THE RIGHT OF HOMEOWNERS TO PROTEST INTRUSIONS
INTO THEIR HOMES IT MAY WELL BE THAT THE RIGHTS OF OWNERS OF BUSINESS
PREMISES SHOULD BE STRINGENTLY LIMITED. 

/9/  I WOULD NOT, HOWEVER, GO SO FAR AS MY BROTHER FORTAS, WHO WOULD
APPEAR TO REQUIRE AN IN CAMERA PROCEEDING IN ANY CASE IN WHICH THE
GOVERNMENT CLAIMS THAT A TURNOVER WOULD BE PREJUDICIAL TO THE NATIONAL
SECURITY.  I BELIEVE THAT THIS SPECIAL PROCEDURE IS ONLY JUSTIFIED WHEN
THE ACCUSED HAS BEEN INDICTED FOR HIS ESPIONAGE ACTIVITIES, INDICATING
THAT HE HAS PROBABLY PASSED RECORDS TO A FOREIGN POWER. 

MR. JUSTICE FORTAS, CONCURRING IN PART AND DISSENTING IN PART. 

        I. 

IN THE PRESENT CASES, THE COURT HOLDS (1) THAT THE GOVERNMENT MAY
USE EVIDENCE IT OBTAINS BY UNLAWFUL ELECTRONIC SURVEILLANCE AGAINST ANY
DEFENDANT WHO DOES NOT HAVE "STANDING" TO COMPLAIN; (2) THAT A
DEFENDANT HAS STANDING ONLY IF HE WAS A PARTY TO THE OVERHEARD
CONVERSATION OR IF IT TOOK PLACE ON "HIS PREMISES"; /1/  AND (3) THAT
ALL ILLEGALLY OBTAINED SURVEILLANCE RECORDS AS TO WHICH A DEFENDANT HAS
STANDING (INCLUDING NATIONAL SECURITY INFORMATION) MUST BE SUBMITTED TO
THE DEFENDANT OR HIS COUNSEL, SUBJECT TO APPROPRIATE PROTECTIVE ORDERS,
AND THEIR RELEVANCE TO THE DEFENDANT'S TRIAL MUST BE DETERMINED IN
ADVERSARY PROCEEDINGS.  THE DEFENDANT IS ENTITLED TO SUPPRESSION OR
EXCLUSION FROM HIS TRIAL OF SUCH ILLEGALLY OBTAINED INFORMATION AND ITS
FRUITS.     I FIND IT NECESSARY TO FILE THIS SEPARATE OPINION BECAUSE I
BELIEVE (1) THAT A PERSON CONCERNING WHOM AN INVESTIGATION INVOLVING
ILLEGAL ELECTRONIC SURVEILLANCE HAS BEEN CONDUCTED, AS WELL AS THE
PERSONS GIVING "STANDING" IN THE MAJORITY OPINION, HAS THE RIGHT TO
SUPPRESSION OF THE ILLEGALLY OBTAINED MATERIAL AND ITS FRUITS; AND (2)
THAT IT IS PERMISSIBLE FOR THE TRIAL JUDGE SUBJECT TO SUITABLE
SPECIFICATIONS, TO ORDER THAT INFORMATION VITAL TO THE NATIONAL
SECURITY SHALL BE EXAMINED ONLY IN CAMERA TO DETERMINE ITS RELEVANCE OR
MATERIALITY, ALTHOUGH I AGREE THAT ALL OTHER INFORMATION THAT MAY BE
THE SUBJECT OF A MOTION TO SUPPRESS MUST BE SHOWN TO THE DEFENDANT OR
HIS COUNSEL SO THAT ITS MATERIALITY CAN BE DETERMINED IN AN ADVERSARY
HEARING. 

        II. 

THE EFFECT OF THE COURT'S DECISION, BLUNTLY ACKNOWLEDGED, IS TO ADD
ANOTHER TO THE LONG LIST OF CASES IN WHICH THE COURTS HAVE TOLERATED
GOVERNMENTAL CONDUCT THAT VIOLATES THE FOURTH AMENDMENT.  THE COURTS
HAVE DONE THIS BY RESORT TO THE LEGALISM OF "STANDING."  SEE, E.G.,
GOLDSTEIN V. UNITED STATES 316 U.S. 114, 121 (1942); WONG SUN V. UNITED
STATES, 371 U.S. 471 (1963).  CF., UNITED STATES V. JEFFERS, 342 U.S.
48 (1951); JONES V. UNITED STATES, 362 U.S. 257 (1960); MANCUSI V.
DEFORTE, 392 U.S. 364 (1968). 

IT IS A FUNDAMENTAL PRINCIPLE OF OUR CONSTITUTIONAL SCHEME THAT
GOVERNMENT, LIKE THE INDIVIDUAL, IS BOUND BY THE LAW.  WE DO NOT
SUBSCRIBE TO THE TOTALITARIAN PRINCIPLE THAT THE GOVERNMENT IS THE LAW,
OR THAT IT MAY DISREGARD THE LAW EVEN IN PURSUIT OF THE LAWBREAKER.  AS
THIS COURT SAID IN MAPP V. OHIO, 367 U.S. 643, 659 (1961), "NOTHING CAN
DESTROY A GOVERNMENT MORE QUICKLY THAN ITS FAILURE TO OBSERVE ITS OWN
LAWS, OR WORSE, ITS DISREGARD OF THE CHARTER OF ITS OWN EXISTENCE." 
/2/ 

THE FOURTH AMENDMENT TO OUR CONSTITUTION PROHIBITS "UNREASONABLE"
GOVERNMENTAL INTERFERENCE WITH THE FUNDAMENTAL FACET OF INDIVIDUAL
LIBERTY:  "(THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS, AND EFFECTS."  MR. JUSTICE JACKSON RECOGNIZED THE
CENTRAL IMPORTANCE OF THE FOURTH AMENDMENT IN HIS DISSENTING OPINION IN
BRINEGAR V. UNITED STATES, 338 U.S. 160, 180-181 (1949): 

"AMONG DEPRIVATIONS OF RIGHTS, NONE IS SO EFFECTIVE IN COWING A
POPULATION, CRUSHING THE SPIRIT OF THE INDIVIDUAL AND PUTTING TERROR IN
EVERY HEART.  UNCONTROLLED SEARCH AND SEIZURE IS ONE OF THE FIRST AND
MOST EFFECTIVE WEAPONS IN THE ARSENAL OF EVERY ARBITRARY GOVERNMENT. 
AND ONE NEED ONLY BRIEFLY TO HAVE DWELT AND WORKED AMONG A PEOPLE
POSSESSED OF MANY ADMIRABLE QUALITIES BUT DEPRIVED OF THESE RIGHTS TO
KNOW THAT THE HUMAN PERSONALITY DETERIORATES AND DIGNITY AND SELF
RELIANCE DISAPPEAR WHERE HOMES, PERSONS AND POSSESSIONS ARE SUBJECT AT
ANY HOUR TO UNHERALDED SEARCH AND SEIZURE BY THE POLICE." 

IT IS DISQUIETING WHEN AN INDIVIDUAL POLICEMAN, THROUGH CARELESSNESS
OR IGNORANCE OR IN RESPONSE TO THE PRESSURE OF EVENTS, SEIZES A PERSON
OR CONDUCTS A SEARCH WITHOUT COMPLIANCE WITH THE STANDARDS PRESCRIBED
BY LAW.  IT IS EVEN MORE DISTURBING WHEN LAW ENFORCEMENT OFFICERS
ENGAGE IN UNCONSTITUTIONAL CONDUCT NOT BECAUSE OF THEIR INDIVIDUAL
ERROR BUT PURSUANT TO A CALCULATED INSTITUTIONAL POLICY AND DIRECTIVE. 

SURREPTITIOUS ELECTRONIC SURVEILLANCE-- THE "UNINVITED EAR" AS MY
BROTHER WHITE CALLS IT-- IS A "SEARCH AND SEIZURE" WITHIN THE AMBIT OF
THE FOURTH AMENDMENT.  SILVERMAN V. UNITED STATES, 365 U.S. 505, 511
(1961); KATZ V. UNITED STATES, 389 U.S. 347, 353 (1967).  IT IS USUALLY
THE PRODUCT OF CALCULATED, OFFICIAL DECISION RATHER THAN THE ERROR OF
AN INDIVIDUAL AGENT OF THE STATE.  AND BECAUSE BY NATURE IT IS HIDDEN,
UNLAWFUL ELECTRONIC SURVEILLANCE IS EVEN MORE OFFENSIVE TO A FREE
SOCIETY THAN THE UNLAWFUL SEARCH AND SEIZURE OF TANGIBLE MATERIAL. 

IN RECOGNITION OF THE PRINCIPLE THAT LAWLESSNESS ON THE PART OF THE
GOVERNMENT MUST BE STOUTLY CONDEMNED, THIS COURT HAS RULED THAT WHEN
SUCH LAWLESS CONDUCT OCCURS, THE GOVERNMENT MAY NOT PROFIT FROM ITS
FRUITS.  WEEKS V. UNITED STATES, 232 U.S. 383 (1914), HELD THAT IN A
FEDERAL PROSECUTION THE GOVERNMENT MAY NOT USE EVIDENCE SECURED THROUGH
AN ILLEGAL SEARCH AND SEIZURE.  IN MAPP V. OHIO, SUPRA, THE
EXCLUSIONARY RULE WAS APPLIED TO THE STATES.  IN THAT CASE, THE COURT
EXPRESSLY RECOGNIZED THAT ONLY A PROSCRIPTION OF THE USE OF UNLAWFULLY
SEIZED MATERIAL COULD PROPERLY IMPLEMENT THE CONSTITUTIONAL
PROHIBITION.  IT ACKNOWLEDGED THAT OTHER REMEDIES WERE NOT EFFECTIVE
SANCTIONS.  ID., AT 651-653.  SEE ALSO WEEKS V. UNITED STATES, SUPRA,
AT 393; IRVINE V. CALIFORNIA, 347 U.S. 128, 137 (1954); WOLF V.
COLORADO, 338 U.S. 25, 41-47 (1949) (DISSENTING OPINION); PEOPLE V.
CAHAN, 44 CAL. 2D 434, 282 P.2D 905 (1955).  AS THIS COURT SAID IN
WALDER V. UNITED STATES, 347 U.S. 62, 64-65 (1954), "THE GOVERNMENT
CANNOT VIOLATE THE FOURTH AMENDMENT . . . AND USE THE FRUITS OF SUCH
UNLAWFUL CONDUCT TO SECURE A CONVICTION . . . (THESE METHODS ARE
OUTLAWED, AND CONVICTIONS OBTAINED BY MEANS OF THEM ARE INVALIDATED,
BECAUSE THEY ENCOURAGE THE KIND OF SOCIETY THAT IS OBNOXIOUS TO FREE
MEN."  /3/ 

BUT FOR REASONS WHICH MANY COMMENTATORS CHARGE ARE RELATED MORE TO
CONVENIENCE AND JUDICIAL PRUDENCE THAN TO CONSTITUTIONAL PRINCIPLES,
COURTS OF ALL STATES EXCEPT CALIFORNIA /4/  AND OF THE FEDERAL SYSTEM,
INCLUDING THIS COURT, HAVE ALLOWED IN EVIDENCE MATERIAL OBTAINED BY
POLICE AGENTS IN DIRECT AND ACKNOWLEDGED VIOLATION OF THE FOURTH
AMENDMENT.  THEY HAVE ALLOWED THIS EVIDENCE EXCEPT IN THOSE CASES WHERE
A DEFENDANT WHO MOVES FOR SUPPRESSION OF THE MATERIAL CAN SHOW THAT HIS
PERSONAL RIGHT OF PRIVACY WAS VIOLATED BY THE UNLAWFUL SEARCH OR
SEIZURE.  THIS RESTRICTION ON PERSONS WHO CAN SUPPRESS ILLEGALLY
ACQUIRED EVIDENCE HAS BEEN ATTRIBUTED BY SOME COMMENTATORS /5/  TO THE
FACT THAT THE CONSTITUTIONAL RIGHT TO SUPPRESS WAS AT ONE TIME
CONSIDERED TO STEM IN PART FROM THE FIFTH AMENDMENT'S PRIVILEGE AGAINST
SELF-INCRIMINATION.  /6/  ONLY THE PERSON WHOSE RIGHT HAS BEEN VIOLATED
CAN CLAIM THE PROTECTION OF THAT PRIVILEGE.  8 J.WIGMORE,EVIDENCE 2196,
2270 (MCNAUGHTON REV. 1961).  BUT IF THE EXCLUSIONARY RULE FOLLOWS FROM
THE FOURTH AMENDMENT ITSELF, THERE IS NO BASIS FOR CONFINING ITS
INVOCATION TO PERSONS WHOSE RIGHT OF PRIVACY HAS BEEN VIOLATED BY AN
ILLEGAL SEARCH.  THE FOURTH AMENDMENT, UNLIKE THE FIFTH, IS COUCHED IN
TERMS OF A GUARANTEE THAT THE GOVERNMENT WILL NOT ENGAGE IN
UNREASONABLE SEARCHES AND SEIZURES.  IT IS A GENERAL PROHIBITION, A
FUNDAMENTAL PART OF THE CONSTITUTIONAL COMPACT, THE OBSERVANCE OF WHICH
IS ESSENTIAL TO THE WELFARE OF ALL PERSONS.  /7/  ACCORDINGLY,
COMMENTATORS HAVE URGED THAT THE NECESSARY IMPLICATION OF THE FOURTH
AMENDMENT IS THAT ANY DEFENDANT AGAINST WHOM ILLEGALLY ACQUIRED
EVIDENCE IS OFFERED, WHETHER OR NOT IT WAS OBTAINED IN VIOLATION OF HIS
RIGHT TO PRIVACY, MAY HAVE THE EVIDENCE EXCLUDED.  IT IS ALSO CONTENDED
THAT THIS IS THE ONLY MEANS TO SECURE THE OBSERVANCE OF THE FOURTH
AMENDMENT.  /8/ 

I FIND THESE ARGUMENTS COGENT AND APPEALING.  THE FOURTH AMENDMENT
IS NOT MERELY A PRIVILEGE ACCORDED TO HIM WHOSE DOMAIN HAS BEEN
LAWLESSLY INVADED.  IT GRANTS THE INDIVIDUAL A PERSONAL RIGHT, NOT TO
PRIVACY, BUT TO INSIST THAT THE STATE UTILIZE ONLY LAWFUL MEANS OF
PROCEEDING AGAINST HIM.  AND IT IS AN ASSURANCE TO ALL THAT THE
GOVERNMENT WILL EXERCISE ITS FORMIDABLE POWERS TO ARREST AND TO
INVESTIGATE ONLY SUBJECT TO THE RULE OF LAW.  SEE BRINEGAR V. UNITED
STATES, SUPRA, AT 181 (DISSENTING OPINION). 

TO ALLOW ANYONE, REGARDLESS OF "STANDING," TO PREVENT THE USE
AGAINST HIM OF EVIDENCE, HOWEVER, BE CONTRARY TO A NUMBER OF DECISIONS
STEMMING FROM JONES V. UNITED STATES, SUPRA.  E.G., WONG SUN V. UNITED
STATES, SUPRA; PARMAN V. UNITED STATES, 130 U.S.APP.D.C. 188, 399 F.2D
559 (1968).  IT IS THE MANDATE OF JONES THAT SOMETHING MORE THAN THE
GENERALIZED INTEREST OF ANY CITIZEN IN GOVERNMENTAL OBEDIENCE TO LAW
MAY BE REQUIRED FOR SUPPRESSION OF UNLAWFULLY OBTAINED EVIDENCE.  BUT
IF THE COURT IS NOT PREPARED TO REPUDIATE THE HOLDING, STATED IN JONES,
THAT SOMETHING MORE MUST BE SHOWN TO COMPEL SUPPRESSION THAN A CLAIM OF
PREJUDICE BASED ONLY ON "THE USE OF EVIDENCE GATHERED AS A CONSEQUENCE
OF A SEARCH OR SEIZURE DIRECTED AT SOMEONE ELSE," 362 U.S.,AT 261, IT
SHOULD AT LEAST FOLLOW JONES FAITHFULLY AND COMPLETELY. 

JONES REPRESENTED A SUBSTANTIAL STEP TOWARDS FULL IMPLEMENTATION OF
THE FOURTH AMENDMENT.  THE CASE INVOLVED A CHARGE OF ILLEGAL POSSESSION
OF NARCOTICS, AND IT HELD THAT MERE LAWFUL PRESENCE ON THE PREMISES
SEARCHED GAVE "STANDING" TO CHALLENGE THE LEGALITY OF THE SEARCH.  /9/
IT REJECTED THE VIEW "GENERALLY" HELD BY COURTS OF APPEALS "THAT THE
MOVANT (MUST) CLAIM EITHER TO HAVE OWNED OR POSSESSED THE SEIZED
PROPERTY OR TO HAVE HAD A SUBSTANTIAL POSSESSORY INTEREST IN THE
PREMISES SEARCHED" IN ORDER TO HAVE THE SEIZED PROPERTY SUPPRESSED. 
IBID.  IT EXPLICITLY REJECTED THE USE OF PROPERTY CONCEPTS TO DETERMINE
WHETHER THE MOVANT HAD THE NECESSARY "INTEREST" OR "STANDING" TO OBTAIN
EXCLUSION OF THE UNLAWFULLY SEIZED EVIDENCE.  SEE ID., AT 266. 

THE COURT SAID IN JONES, IN A PASSAGE THE MAJORITY QUOTES BUT THE
FULL SCOPE OF WHICH IT DOES NOT INCORPORATE IN ITS OPINION: 

     "IN ORDER TO QUALIFY AS A 'PERSON AGGRIEVED BY AN UNLAWFUL

  SEARCH AND SEIZURE' ONE MUST HAVE BEEN A VICTIM OF A SEARCH OR

SEIZURE, ONE AGAINST WHOM THE SEARCH WAS DIRECTED, AS

  DISTINGUISHED FROM ONE WHO CLAIMS PREJUDICE ONLY THROUGH THE USE

  OF EVIDENCE GATHERED AS A CONSEQUENCE OF A SEARCH OR SEIZURE

  DIRECTED AT SOMEONE ELSE . . . 

      "ORDINARILY, THEN, IT IS ENTIRELY PROPER TO REQUIRE OF ONE
WHO

  SEEKS TO CHALLENGE THE LEGALITY OF A SEARCH AS THE BASIS FOR

  SUPPRESSING RELEVANT EVIDENCE THAT HE ALLEGE, AND IF THE

  ALLEGATION BE DISPUTED THAT HE ESTABLISH, THAT HE HIMSELF WAS THE

  VICTIM OF AN INVASION OF PRIVACY."  ID., AT 261. 

IT IS MY POSITION THAT THIS QUOTATION, READ IN THE LIGHT OF THE COURT'S
REJECTION OF PROPERTY CONCEPTS, REQUIRES THAT WE INCLUDE WITHIN THE
CATEGORY OF THOSE WHO MAY OBJECT TO THE INTRODUCTION OF ILLEGAL
EVIDENCE "ONE AGAINST WHOM THE SEARCH WAS DIRECTED."  SUCH A PERSON IS
SURELY "THE VICTIM OF AN INVASION OF PRIVACY"  /10/  AND A "PERSON
AGGRIEVED," EVEN THOUGH IT IS NOT HIS PROPERTY THAT WAS SEARCHED OR
SEIZED.  AS I THINK THE COURT RECOGNIZED IN JONES, UNLESS WE ARE TO
INSIST UPON PROPERTY CONCEPTS, IT IS ENOUGH TO GIVE HIM "STANDING" TO
OBJECT THAT THE GOVERNMENT AGENTS CONDUCTED THEIR UNLAWFUL SEARCH AND
SEIZURE IN ORDER TO OBTAIN EVIDENCE TO USE AGAINST HIM.  THE GOVERNMENT
VIOLATES HIS RIGHTS WHEN IT SEEKS TO DEPRIVE HIM OF HIS LIBERTY BY
UNLAWFULLY SEIZING EVIDENCE IN THE COURT OF AN INVESTIGATION OF HIM AND
USING IT AGAINST HIM AT TRIAL.  SEE ROSENCRANZ V. UNITED STATES, 334
F.2D 738, 741 (C.A. 1ST CIR. 1964) (CONCURRING OPINION). 

        III. 

I DO NOT AGREE WITH THE COURT'S DECISION THAT SENSITIVE NATIONAL
SECURITY MATERIAL THAT MAY NOT BE RELEVANT TO A DEFENDANT'S PROSECUTION
MUST BE TURNED OVER TO THE DEFENDANT OR HIS COUNSEL FOR THEIR
SCRUTINY.  BY THE TERM "NATIONAL SECURITY MATERIAL," I MEAN TO REFER TO
A RIGID AND LIMITED CATEGORY.  IT WOULD NOT INCLUDE MATERIAL RELATING
TO ANY ACTIVITIES EXCEPT THOSE SPECIFICALLY DIRECTED TO ACTS OF
SABOTAGE, ESPIONAGE, OR AGGRESSION BY OR ON BEHALF OF FOREIGN STATES. 

BECAUSE THE COURT BELIEVES THAT NO DISTINCTION CAN BE MADE WITH
RESPECT TO THE DEFENDANT'S RIGHT TO SUPPRESS RELEVANT EVIDENCE ON THE
BASIS OF THE SENSITIVITY OF THE MATERIAL, IT HAS CONCLUDED THAT NO
DISTINCTION CAN BE MADE AS TO THE METHOD OF DETERMINING WHETHER THE
MATERIAL IS RELEVANT.  I AGREE THAT AN IN CAMERA INSPECTION OF THE
RECORDS OF UNLAWFUL SURVEILLANCE SHOULD NOT BE THE USUAL METHOD OF
DETERMINING RELEVANCE.  I AGREE WITH ALL THAT THE COURT SAYS ABOUT THE
INADEQUACY OF AN INSPECTION IN WHICH THE DEFENDANT CANNOT PARTICIPATE
AND THE BURDEN THAT IT PLACES UPON THE TRIAL JUDGE.  BUT IN CASES WHERE
THE TRIAL COURT EXPLICITLY DETERMINES, IN WRITTEN FINDINGS, SEALED AND
AVAILABLE FOR EXAMINATION BY REVIEWING COURTS, THAT DISCLOSURE WOULD
SUBSTANTIALLY INJURE NATIONAL SECURITY INTERESTS, I DO NOT THINK THAT
DISCLOSURE TO THE DEFENDANT IS NECESSARY IN ORDER FOR THE GOVERNMENT TO
PROCEED WITH A PROSECUTION.  THE TRIAL JUDGE SHOULD MAKE SUCH FINDINGS
ONLY WHEN THE ATTORNEY GENERAL HAS PERSONALLY CERTIFIED THAT SPECIFIC
PORTIONS OF THE UNLAWFULLY OBTAINED MATERIALS ARE SO SENSITIVE THAT
THEY SHOULD NOT BE DISCLOSED.  BUT WHEN SUCH A CERTIFICATION IS MADE, I
BELIEVE THAT THE TRIAL JUDGE MAY HIMSELF WEED OUT THE MATERIAL THAT HE
DEEMS TO BE CLEARLY IRRELEVANT AND IMMATERIAL.  THE BALANCE, OF COURSE,
MUST BE TURNED OVER TO THE DEFENDANT OR HIS COUNSEL, UNLESS THE
GOVERNMENT CHOOSES INSTEAD TO DISMISS THE PROSECUTION. 

LET ME EMPHASIZE THAT THE DEFENDANT'S RIGHT TO SUPPRESS IS THE SAME
WHETHER THE CHARGE IS ESPIONAGE, SABOTAGE, OR ANOTHER KIND OF CRIME:
RELEVANT MATERIAL THAT HAS BEEN ILLEGALLY SEIZED MAY BE SUPPRESSED IF
THE DEFENDANT HAS STANDING, BUT THE EXISTENCE OF NONRELEVANT ILLEGAL
EVIDENCE WILL NOT PREVENT A PROSECUTION.  ONLY THE METHOD OF
DETERMINING THE RELEVANCE OF THE LAWLESSLY OBTAINED MATERIAL TO THE
PROSECUTION WOULD VARY ACCORDING TO WHETHER THE NATIONAL SECURITY IS
INVOLVED. 

I AGREE WITH THE MAJORITY THAT THE POSSIBILITY OF ERROR IN
DETERMINING RELEVANCE IS MUCH GREATER IF THERE IS ONLY IN CAMERA
EXAMINATION.  BUT I ALSO AGREE WITH MY BROTHER HARLAN THAT DISCLOSURE
OF SOME OF THE MATERIAL MAY POSE A SERIOUS DANGER TO THE NATIONAL
INTEREST.  I THEREFORE REACH THE CONCLUSION THAT A DIFFERENTIATION MAY
PROPERLY BE MADE BETWEEN THE METHOD OF HANDLING MATERIALS THE
DISCLOSURE OF WHICH WOULD ENDANGER THE NATIONAL SECURITY AND OTHER
ILLEGALLY OBTAINED MATERIALS.  SKEPTICISM AS TO THE COURT'S ABILITY TO
DETECT AND TURN OVER TO THE DEFENDANT ALL RELEVANT MATERIAL MAY BE WELL
FOUNDED, BUT IN CAMERA INSPECTION DOES NOT SO CLEARLY THREATEN TO
DEPRIVE DEFENDANTS OF THEIR CONSTITUTIONAL RIGHTS THAT IT JUSTIFIES
ENDANGERING THE NATIONAL SECURITY.  ACCORDINGLY, I HOLD THAT AFTER
CERTIFICATION BY THE ATTORNEY GENERAL THAT SPECIFIC PORTIONS OF
UNLAWFULLY OBTAINED MATERIALS ARE SENSITIVE, THE TRIAL JUDGE MAY FIND
THAT THEIR DISCLOSURE TO THE DEFENDANT OR HIS COUNSEL WOULD
SUBSTANTIALLY INJURE NATIONAL SECURITY INTERESTS, AND HE MAY DETERMINE
IN CAMERA WHETHER THE MATERIALS ARE ARGUABLY RELEVANT TO THE
DEFENDANT'S PROSECUTION. 

/1/  THE COURT LEAVES THE SCOPE OF THE INTEREST THAT THE DEFENDANT
MUST HAVE IN THE "PREMISES" TO BE DETERMINED IN FUTURE LITIGATION. 

/2/  MR. JUSTICE BRANDEIS ELABORATED THIS POINT MORE THAN 40 YEARS
AGO: 

"IN A GOVERNMENT OF LAWS, EXISTENCE OF THE GOVERNMENT WILL BE
IMPERILLED IF IT FAILS TO OBSERVE THE LAW SCRUPULOUSLY.  OUR GOVERNMENT
IS THE POTENT, THE OMNIPRESENT TEACHER.  FOR GOOD OR FOR ILL, IT
TEACHES THE WHOLE PEOPLE BY ITS EXAMPLE.  CRIME IS CONTAGIOUS.  IF THE
GOVERNMENT BECOMES A LAWBREAKER, IT BREEDS CONTEMPT FOR LAW; IT INVITES
EVERY MAN TO BECOME A LAW UNTO HIMSELF; IT INVITES ANARCHY.  TO DECLARE
THAT IN THE ADMINISTRATION OF THE CRIMINAL LAW THE END JUSTIFIES THE
MEANS-- TO DECLARE THAT THE GOVERNMENT MAY COMMIT CRIMES IN ORDER TO
SECURE THE CONVICTION OF A PRIVATE CRIMINAL-- WOULD BRING TERRIBLE
RETRIBUTION . . . "  OLMSTEAD V. UNITED STATES, 277 U.S. 438, 485
(1928) (DISSENTING OPINION). 

SEE ALSO ELKINS V. UNITED STATES, 364 U.S. 206, 222 (1960); TERRY V.
OHIO, 392 U.S. 1, 13 (1968); GOLDSTEIN V. UNITED STATES, 316 U.S. 114,
128 (1942) (DISSENTING OPINION); IRVINE V. CALIFORNIA, 347 U.S. 128,
149 (1954) (DOUGLAS, J., DISSENTING); COMMENT, THE BENANTI CASE:  STATE
WIRETAP EVIDENCE AND THE FEDERAL EXCLUSIONARY RULE, 57 COL.L.REV. 
1159, 1167-1168 (1957). 

/3/  WE POINTED OUT LAST TERM "(A) RULING ADMITTING EVIDENCE IN A
CRIMINAL TRIAL . . . HAS THE NECESSARY EFFECT OF LEGITIMIZING THE
CONDUCT WHICH PROCURED THE EVIDENCE, WHILE AN APPLICATION OF THE
EXCLUSIONARY RULE WITHHOLDS THE CONSTITUTIONAL IMPRIMATUR."  TERRY V.
OHIO, SUPRA, N. 2, AT 13.  SEE IRVINE V, CALIFORNIA, SUPRA, N. 2, AT
150 (DISSENTING OPINION). 

/4/  SEE PEOPLE V. MARTIN, 45 CAL. 2D 755, 290 P.2D 855 (1955). 

/5/  BROEDER, WONG SUN V. UNITED STATES:  A STUDY IN FAITH AND HOPE,
42 NEB.L.REV.  483, 539, 540 (1963); COMMENT, FRUIT OF THE POISONOUS
TREE-- A PLEA FOR RELEVANT CRITERIA, 115 U.PA.L.REV.  1136, 1140-1141
(1967).  OTHERS HAVE ATTRIBUTED THE STANDING REQUIREMENT SIMPLY TO A
HOSTILITY TOWARDS THE EXCLUSIONARY RULE ON THE PART OF THE COURTS. 
SEE, E.G., EDWARDS, STANDING TO SUPPRESS UNREASONABLY SEIZED EVIDENCE,
47 NW.U.L.REV.  471 (1952). 

/6/  MAPP V. OHIO, 367 U.S. 643 (1961), WAS A 5-TO-4 DECISION.  MY
BROTHER BLACK CONCURRED ONLY ON THE BASIS THAT FIFTH AMENDMENT'S BAN
AGAINST SELF-INCRIMINATION, OPERATING IN CONJUNCTION WITH THE FOURTH
AMENDMENT, REQUIRED THE EXCLUSIONARY RULE.  SEE ALSO KER V. CALIFORNIA,
374 U.S. 23, 30, (1963); MALLOY V. HOGAN, 378 U.S. 1, 8 (1964). 

/7/  THE CALIFORNIA SUPREME COURT HAS RECOGNIZED THAT IT IS NOT
INCONSISTENT TO HOLD THAT ANY PERSON MAY OBJECT TO THE USE AGAINST HIM
OF EVIDENCE OBTAINED BY AN ILLEGAL SEARCH OR SEIZURE, WHILE AT THE SAME
TIME ALLOWING ONLY A PERSON WHO HAS BEEN MADE TO INCRIMINATE HIMSELF TO
SUPPRESS HIS CONFESSION AND ITS FRUITS.  COMPARE PEOPLE V. MARTIN,
SUPRA, N. 4, WITH PEOPLE V. VARNUM, 66 CAL.2D 808, 427 P.2D 772
(1967). 

/8/  SEE GENERALLY GRANT, CIRCUMVENTING THE FOURTH AMENDMENT, 14
SO.CAL.L.REV.  359, 368 (1941); ALLEN, THE WOLF CASE:  SEARCH AND
SEIZURE, FEDERALISM, AND THE CIVIL LIBERTIES, 45 ILL.L.REV.  1, 22
(1950); KAMISAR, ILLEGAL SEARCHES OR SEIZURES AND CONTEMPORANEOUS
INCRIMINATING STATEMENTS:  A DIALOGUE ON A NEGLECTED AREA OF CRIMINAL
PROCEDURE, 1961 U.ILL.L.F. 78, 105.  TRAYNOR, MAPP V. OHIO AT LARGE IN
THE FIFTY STATES, 1962 DUKE L.J. 319, 335; BROEDER, SUPRA, N. 5, AT
540; PITLER, "THE FRUIT OF THE POISONOUS TREE" REVISITED AND
SHEPARDIZED, 56 CALIF.L.REV.  579, 649-650, N. 352 (1968); COMMENT,
JUDICIAL CONTROL OF ILLEGAL SEARCH AND SEIZURE, 58 YALE L.J. 144, 157
(1948); NOTE, STANDING TO OBJECT TO AN UNLAWFUL SEARCH AND SEIZURE,
1965 WASH.U.L.Q. 488; COMMENT, STANDING TO OBJECT TO AN UNREASONABLE
SEARCH AND SEIZURE, 34 U.CHI.L.REV.  342 (1967).  BUT SEE EDWARDS,
SUPRA, N. 5, AT 472 WEEKS, STANDING TO OBJECT IN THE FIELD OF SEARCH
AND SEIZURE, 6 ARIZ.L.REV.  65 (1964); COMMENT, 55 MICH.L.REV.  567,
581 (1957). 

/9/  I ASSUME THAT THE COURT TODAY INTENDS TO INCORPORATE AT LEAST
THIS DIRECT HOLDING OF JONES. 

/10/  TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF
1968, PUB. L. 90-351, 82 STAT. 211, PROVIDES THAT A LAW ENFORCEMENT
OFFICER SEEKING PRIOR JUDICIAL AUTHORIZATION FOR INTERCEPTION OF WIRE
OR ORAL COMMUNICATIONS SHALL INCLUDE, AMONG OTHER THINGS, IN HIS
APPLICATION TO THE COURT "A FULL AND COMPLETE STATEMENT OF THE FACTS
AND CIRCUMSTANCES RELIED UPON BY THE APPLICANT, TO JUSTIFY HIS BELIEF
THAT AN ORDER SHOULD BE ISSUED, INCLUDING (I) DETAILS AS TO THE
PARTICULAR OFFENSE THAT HAS BEEN, IS BEING, OR IS ABOUT TO BE
COMMITTED, (II) A PARTICULAR DESCRIPTION OF THE TYPE OF COMMUNICATIONS
SOUGHT TO BE INTERCEPTED, (IV) THE IDENTIFY OF THE PERSON, IF KNOWN,
COMMITTING THE OFFENSE AND WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED .
. . " 82 STAT. 218 (18 U.S.C. 2518(1)(B) (1964 ED., SUPP. IV)). 
EXAMINATION OF SUCH APPLICATIONS SHOULD FACILITATE THE TASK OF DECIDING
AT WHOM A PARTICULAR INVESTIGATION WAS DIRECTED.  SEE ALSO BERGER V.
NEW YORK, 388 U.S. 41, 55-59 (1967), IN WHICH WE HELD THAT THE FOURTH
AMENDMENT REQUIRES, AS A PRECONDITION OF JUDICIAL AUTHORIZATION OF AN
EAVESDROP, THAT THE CONVERSATIONS SOUGHT TO BE SEIZED BE DESCRIBED WITH
PARTICULARITY. 

ALTHOUGH I HAVE REFERRED TO RELEVANT PROVISIONS OF THE OMNIBUS CRIME
CONTROL AND SAFE STREETS ACT, I NOTE THAT I HAVE NOT CONSIDERED THE
CONSTITUTIONALITY OF THE ACT, AS THAT ISSUE IS NOT INVOLVED IN THIS
CASE.  I EXPRESS NEITHER AGREEMENT NOR DISAGREEMENT WITH THE MAJORITY'S
STATEMENTS CONCERNING THE ACT. 

SOLICITOR GENERAL GRISWOLD REARGUED FOR THE UNITED STATES IN NO.
133, OCTOBER TERM, 1967, ON THE MOTION TO MODIFY THE COURT'S ORDER OF
JANUARY 29, 1968, 390 U.S. 136.  WITH HIM ON THE BRIEF WERE ASSISTANT
ATTORNEY GENERAL VINSON, LOUIS F. CLAIBORNE, JOHN S. MARTIN, JR.,
BEATRICE ROSENBERG, AND SIDNEY M. GLAZER. 

EDWARD BENNETT WILLIAMS REARGUED FOR PETITIONERS IN NO. 133, OCTOBER
TERM, 1967, IN OPPOSITION TO THE MOTION.  WITH HIM ON THE BRIEF WERE
HAROLD UNGAR AND W. H. ERICKSON. 

MR. WILLIAMS ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER IN
NO. 11.  CHARLES DANZIG, BY APPOINTMENT OF THE COURT, 393 U.S. 814,
ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER IN NO. 197. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES IN
NOS. 11 AND 197.  WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL
YEAGLEY, MESSRS.  CLAIBORNE AND MARTIN, AND KEVIN T. MARONEY. 
..END :




















POWERS V. PERRY CIRCUIT COURT, 394 U.S. 212 


       POWERS ET AL. V. PERRY CIRCUIT COURT ET AL.

   ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           INDIANA. 

        NO. 559, MISC.  DECIDED MARCH 10, 1969. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF INDIANA FOR FURTHER
CONSIDERATION IN LIGHT OF SMITH V. HOOEY, 393 U.S. 374. 

JOHN J. DILLON, ATTORNEY GENERAL OF INDIANA, AND RICHARD V. BENNETT,
DEPUTY ATTORNEY GENERAL, FOR RESPONDENTS. 
..END :








DUNBAR-STANLEY STUDIOS, INC. V. CITY OF MOBILE, 394 U.S. 212 


       DUNBAR-STANLEY STUDIOS, INC. V. CITY OF MOBILE. 

        APPEAL FROM THE SUPREME COURT OF ALABAMA. 

 NO. 377.  DECIDED MARCH 10, 1969. 


282 ALA. 386, 211 SO.2D 803, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

J. EDWARD THORNTON AND GLEN B. HARDYMON FOR APPELLANT. 

BARRY HESS FOR APPELLEE. 
..END :










ABRAMS V. WIETHE, 394 U.S. 213 


       ABRAMS ET AL. V. WIETHE ET AL.

        APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 961.  DECIDED MARCH 10, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

CHARLES E. HAMILTON FOR APPELLANTS. 
..END :












LOCAL 182, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS V. NATIONAL LABOR RELATIONS BOARD, 394 U.S. 213 




       LOCAL 182, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

           CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA V.

           NATIONAL LABOR RELATIONS BOARD. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

      SECOND CIRCUIT. 

        NO. 958.  DECIDED MARCH 10, 1969. 


401 F.2D 509, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

JOHN T. BUCKLEY FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ARNOLD ORDMAN, DOMINICK L. MANOLI, AND
NORTON J. COME FOR APPELLEE. 
..END :





















WATTS V. MARYLAND, 394 U.S. 214 


       WATTS V. MARYLAND. 

        APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

        NO. 1267, MISC.  DECIDED MARCH 10, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














SHAW V. ILLINOIS, 394 U.S. 214 


       SHAW V. ILLINOIS. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE COURT
OF

           ILLINOIS, FIRST DISTRICT. 

        NO. 665, MISC.  DECIDED MARCH 10, 1969. 


CERTIORARI GRANTED; 89 ILL.APP.2D 285, 233 N.E.2D 73, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT,
FOR FURTHER CONSIDERATION IN LIGHT OF SMITH V. ILLINOIS, 390 U.S. 129. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
CERTIORARI SHOULD BE DENIED. 

GERALD W. GETTY, AND MARSHALL J. HARTMAN FOR PETITIONER. 

WILLIAM G. CLARK, ATTORNEY GENERAL OF ILLINOIS, AND JOHN J. O'TOOLE,
ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :























SUMRALL V. KIDD, 394 U.S. 215 


       SUMRALL V. KIDD ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF MISSISSIPPI. 

        NO. 1167, MISC.  DECIDED MARCH 10, 1969. 


VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CAUSE IS REMANDED IN
ORDER THAT THE DISTRICT COURT MAY ENTER A FRESH DECREE FROM WHICH THE
APPELLANT MAY, IF HE WISHES, PERFECT A TIMELY APPEAL TO THE COURT OF
APPEALS.  MOODY V. FLOWERS, 387 U.S. 97. 

LAWRENCE A. ASCHENBRENNER AND ELLIOTT C. LICHTMAN FOR APPELLANT. 

ACTING SOLICITOR GENERAL FRIEDMAN, ACTING ASSISTANT ATTORNEY GENERAL
EARDLEY, MORTON HOLLANDER, AND ROBERT V. ZENER FOR APPELLEES. 
..END :





JONES V. CALIFORNIA, 394 U.S. 215 


       JONES V. CALIFORNIA. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FIRST

           APPELLATE DISTRICT. 

        NO. 1072, MISC.  DECIDED MARCH 10, 1969. 


263 CAL.APP.2D 818, 70 CAL.RPTR.  13, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :











JOHNSON V. VOYLES, SHERIFF, 394 U.S. 216 


       JOHNSON V. VOYLES, SHERIFF, ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

      TEXAS. 

        NO. 429, MISC.  DECIDED MARCH 10, 1969. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF TEXAS FOR FURTHER
CONSIDERATION IN LIGHT OF SMITH V. HOOEY, 393 U.S. 374 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, ROBERT C. FLOWERS AND ALLO B. CROW, JR.,
ASSISTANT ATTORNEYS GENERAL, AND STANLEY KIRK FOR RESPONDENTS. 
..END :







GOLDEN V. ZWICKLER, 394 U.S. 103 


       GOLDEN, ACTING DISTRICT ATTORNEY OF KINGS COUNTY V.

           ZWICKLER. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF NEW YORK. 

        NO. 370.  ARGUED JANUARY 16, 1969.-- DECIDED MARCH 4,
1969. 


FOLLOWING REVERSAL ON STATE LAW GROUNDS OF APPELLEE'S CONVICTION OF
VIOLATING A NEW YORK STATUTE BY DISTRIBUTING ANONYMOUS HANDBILLS IN
CONNECTION WITH THE 1964 CONGRESSIONAL ELECTION, APPELLEE IN 1966
SOUGHT A DECLARATORY JUDGMENT IN THE DISTRICT COURT THAT THE STATUTE
WAS UNCONSTITUTIONAL.  APPELLEE ALLEGED THAT HE INTENDED TO DISTRIBUTE
THE 1964 HANDBILL AND "SIMILAR ANONYMOUS LEAFLETS" IN CONNECTION WITH
THE FORTHCOMING 1966 ELECTION (WHEN, IT WAS ALLEGED, THE CONGRESSMAN
WOULD STAND FOR RE-ELECTION), AND IN SUBSEQUENT ELECTIONS.  THE
DISTRICT COURT ABSTAINED FROM PASSING ON APPELLEE'S CLAIM FOR A
DECLARATORY JUDGMENT.  THIS COURT ON APPEAL HELD THAT SUCH ABSTENTION
WAS ERROR AND REMANDED THE CASE FOR RESOLUTION OF THE DECLARATORY
JUDGMENT ISSUE.  ZWICKLER V. KOOTA, 389 U.S. 241.  THE COURT HELD THAT
ON THE REMAND APPELLEE WOULD HAVE TO "ESTABLISH THE ELEMENTS GOVERNING
THE ISSUANCE OF A DECLARATORY JUDGMENT," NOTING AS RELEVANT TO THAT
QUESTION THAT THE CONGRESSMAN WHO HAD BEEN THE TARGET OF QPPELLEE'S
HANDBILLS HAD MEANWHILE BEEN ELECTED TO THE SUPREME COURT OF NEW YORK. 
ON REMAND, THE DISTRICT COURT, WITHOUT HEARING EVIDENCE ON THE
EXISTENCE OF THE ELEMENTS GOVERNING THE ISSUANCE OF A DECLARATORY
JUDGMENT, HELD THAT THE ESSENTIAL ELEMENTS TO SUCH RELIEF EXISTED
"(WHEN THIS ACTION WAS INITIATED" AND THAT IT WAS IMMATERIAL THAT THE
CONGRESSMAN WOULD NOT BE A CANDIDATE FOR RE-ELECTION, AND CONCLUDED
THAT THE STATUTE IMPINGED ON APPELLEE'S FREEDOM OF SPEECH BY DETERRING
HIM FROM AGAIN DISTRIBUTING ANONYMOUS HANDBILLS.  HELD: 

1.  IN THE FIELD OF DECLARATORY JUDGMENTS AS ELSEWHERE
CONSTITUTIONAL ISSUES CANNOT BE ADJUDICATED EXCEPT IN ACTUAL CASES
PRESENTING CONCRETE LEGAL ISSUES.  P. 108. 

2.  SINCE THE NEW YORK STATUTE PROHIBITS ONLY ANONYMOUS HANDBILLS
DIRECTLY PERTAINING TO ELECTION CAMPAIGNS AND IT WAS WHOLLY CONJECTURAL
THAT ANOTHER OCCASION MIGHT ARISE WHEN APPELLEE WOULD BE PROSECUTED FOR
DISTRIBUTING THE HANDBILLS REFERRED TO IN THE COMPLAINT BECAUSE HIS
SOLE CONCERN RELATED TO A CONGRESSMAN WHO WOULD NOT LIKELY BE A
CANDIDATE AGAIN, THE CONTROVERSY HERE LACKED "SUFFICIENT IMMEDIACY AND
REALITY" TO WARRANT ISSUANCE OF A DECLARATORY JUDGMENT.  PP. 109-110. 

290 F.SUPP.  244, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS HERE BEFORE AS ZWICKLER V. KOOTA, 389 U.S. 241 (1967). 
WE THERE HELD THAT THE THREE-JUDGE DISTRICT COURT FOR THE EASTERN
DISTRICT OF NEW YORK ERRED IN ABSTAINING FROM DECIDING WHETHER
ZWICKLER, APPELLEE IN THE INSTANT CASE, WAS ENTITLED TO A DECLARATORY
JUDGMENT RESPECTING THE CONSTITUTIONALITY OF NEW YORK PENAL LAW SEC.
781-B, NOW NEW YORK ELECTION LAW SEC. 457, AND WE REMANDED TO THE
DISTRICT COURT FOR A DETERMINATION OF THAT QUESTION.  SECTION 781-B
MADE IT A CRIME TO DISTRIBUTE ANONYMOUS LITERATURE IN CONNECTION WITH
AN ELECTION CAMPAIGN.  /1/  ZWICKLER HAD BEEN CONVICTED OF VIOLATING
THIS PROVISION BY DISTRIBUTING ANONYMOUS HANDBILLS IN CONNECTION WITH
THE 1964 CONGRESSIONAL ELECTION.  THAT CONVICTION WAS REVERSED, ON
STATE LAW GROUNDS, BY THE NEW YORK SUPREME COURT, APPELLATE TERM.  THE
NEW YORK COURT OF APPEALS AFFIRMED IN 1965 AND FILED A MEMORANDUM WHICH
STATED THAT CONSTITUTIONAL QUESTIONS HAD NOT BEEN REACHED.  16 N.Y.2D
1069, 213 N.E.2D 467.  A FEW MONTHS THEREAFTER, ON APRIL 22, 1966,
ZWICKLER BROUGHT THIS SUIT. 

THE COMPLAINT SETS FORTH THE FACTS REGARDING THE PROSECUTION AND ITS
TERMINATION.  A CONGRESSMAN STANDING FOR RE-ELECTION IN 1964 WAS
CRITICIZED IN THE ANONYMOUS HANDBILL FOR OPPOSING TWO AMENDMENTS TO THE
1964 FOREIGN AID BILL.  /2/  THE COMPLAINT ALLEGED THA THE CONGRESSMAN
"WILL BECOME A CANDIDATE IN 1966 FOR REELECTION . . . AND HAS BEEN A
POLITICAL FIGURE AND PUBLIC OFFICIAL FOR MANY YEARS," AND THAT ZWICKLER
"DESIRES AND INTENDS TO DISTRIBUTE . . . AT THE PLACE WHERE HE HAD
PREVIOUSLY DONE SO AND AT VARIOUS PLACES IN SAID (KINGS) COUNTY, THE
ANONYMOUS LEAFLET HEREIN DESCRIBED . . . AND SIMILAR ANONYMOUS LEAFLETS
. . . AT ANY TIME DURING THE ELECTION CAMPAIGN OF 1966 AND IN
SUBSEQUENT ELECTION CAMPAIGNS OR IN CONNECTION WITH ANY ELECTION OF
PARTY OFFICIALS, NOMINATION FOR PUBLIC OFFICE AND PARTY POSITION THAT
MAY OCCUR SUBSEQUENT TO SAID ELECTION CAMPAIGN OF 1966." 

IT WAS DISCLOSED ON THE ARGUMENT OF ZWICKLER V. KOOTA IN THIS COURT
THAT THE CONGRESSMAN HAD LEFT THE HOUSE OF REPRESENTATIVES FOR A PLACE
ON THE SUPREME COURT OF NEW YORK.  WE DEEMED THIS DEVELOPMENT RELEVANT
TO THE QUESTION WHETHER THE PREREQUISITES FOR THE ISSUANCE OF A
DECLARATORY JUDGMENT WERE PRESENT.  WE NOTED, HOWEVER, THAT, PROBABLY
BECAUSE OF THE DECISION TO ABSTAIN, THE PARTIES HAD NOT ADDRESSED
THEMSELVES TO, AND THE DISTRICT COURT HAD NOT ADJUDICATED, THAT
QUESTION.  389 U.S.,AT 244, N. 3.  THEREFORE, WE DIRECTED THAT ON THE
REMAND "APPELLANT (ZWICKLER) MUST ESTABLISH THE ELEMENTS GOVERNING THE
ISSUANCE OF A DECLARATORY JUDGMENT."  ID., AT 252, N. 15; SEE ALSO ID.,
AT 252-253, N. 16. 

THE DISTRICT COURT HEARING ON THE REMAND WAS LIMITED LARGELY TO THE
ORAL ARGUMENT OF COUNSEL, AND NO TESTIMONY WAS TAKEN CONCERNING THE
EXISTENCE OF THE ELEMENTS GOVERNING THE ISSUANCE OF A DECLARATORY
JUDGMENT.  THE THREE-JUDGE COURT HELD THAT THE PREREQUISITES OF A
DECLARATORY JUDGMENT HAD BEEN ESTABLISHED BY THE FACTS ALLEGED IN THE
COMPLAINT, AND THAT THE FACT THAT THE CONGRESSMAN WHO WAS THE ORIGINAL
TARGET OF THE HANDBILLS WOULD NOT AGAIN STAND FOR RE-ELECTION DID NOT
AFFECT THE QUESTION.  THE COURT SAID: 

     "THE ATTEMPT OF DEFENDANT TO MOOT THE CONTROVERSY AND THUS TO

  ABORT A DECLARATION OF CONSTITUTIONAL INVALIDITY BY CITING THE

  CIRCUMSTANCE THAT THE CONGRESSMAN CONCERNING WHOM THE ZWICKLER

  HANDBILL WAS PUBLISHED HAS SINCE BECOME A NEW YORK STATE SUPREME

  COURT JUSTICE MUST FAIL.  WHEN THIS ACTION WAS INITIATED THE

  CONTROVERSY WAS GENUINE, SUBSTANTIAL AND IMMEDIATE, EVEN THOUGH

  THE DATE OF THE ELECTION TO WHICH THE LITERATURE WAS PERTINENT

  HAD ALREADY PASSED. 

        .        .          .          . 

     " . . . THE FORTUITOUS CIRCUMSTANCE THAT THE CANDIDATE IN

  RELATION TO WHOSE BID FOR OFFICE THE ANONYMOUS HANDBILL WAS

  CIRCULATED HAD, WHILE VINDICATION INCHED TEDIOUSLY FORWARD,

  REMOVED HIMSELF FROM THE ROLE OF TARGET OF THE 1964 HANDBILL DOES

  NOT MOOT THE PLAINTIFF'S FURTHER AND FAR BROADER RIGHT TO A

GENERAL ADJUDICATION OF UNCONSTITUTIONALITY HIS COMPLAINT PRAYS

  FOR.  WE SEE NO REASON TO QUESTION ZWICKLER'S ASSERTION THAT THE

  CHALLENGED STATUTE CURRENTLY IMPINGES UPON HIS FREEDOM OF SPEECH

  BY DETERRING HIM FROM AGAIN DISTRIBUTING ANONYMOUS HANDBILLS. 

  HIS OWN INTEREST AS WELL AS THAT OF OTHERS WHO WOULD WITH LIKE

  ANONYMITY PRACTISE FREE SPEECH IN A POLITICAL ENVIRONMENT

  PERSUADE US TO THE JUSTICE OF HIS PLEA."  290 F.SUPP.  244, 248,

  249 (1968). 

WE NOTED PROBABLE JURISDICTION SUB NOM. KOOTA V. ZWICKLER, 393 U.S. 818
(1968).  WE REVERSE. 

THE DISTRICT COURT ERRED IN HOLDING THA ZWICKLER WAS ENTITLED TO
DECLARATORY RELIEF IF THE ELEMENTS ESSENTIAL TO THAT RELIEF EXISTED
"(WHEN THIS ACTION WAS INITIATED."  THE PROPER INQUIRY WAS WHETHER A
"CONTROVERSY" REQUISITE TO RELIEF UNDER THE DECLARATORY JUDGMENT ACT
EXISTED AT THE TIME OF THE HEARING ON THE REMAND.  /3/  WE NOW
UNDERTAKE THAT INQUIRY. 

"(THE FEDERAL COURTS ESTABLISHED PURSUANT TO ARTICLE III OF THE
CONSTITUTION DO NOT RENDER ADVISORY OPINIONS.  FOR ADJUDICATION OF
CONSTITUTIONAL ISSUES, 'CONCRETE LEGAL ISSUES, PRESENTED IN ACTUAL
CASES, NOT ABSTRACTIONS,' ARE REQUISITE.  THIS IS AS TRUE OF
DECLARATORY JUDGMENTS AS ANY OTHER FIELD."  UNITED PUBLIC WORKERS OF
AMERICA V. MITCHELL, 330 U.S. 75, 89 (1947).  "THE DIFFERENCE BETWEEN
AN ABSTRACT QUESTION AND A 'CONTROVERSY' CONTEMPLATED BY THE
DECLARATORY JUDGMENT ACT IS NECESSARILY ONE OF DEGREE, AND IT WOULD BE
DIFFICULT, IF IT WOULD BE POSSIBLE, TO FASHION A PRECISE TEST FOR
DETERMINING IN EVERY CASE WHETHER THERE IS SUCH A CONTROVERSY. 
BASICALLY, THE QUESTION IN EACH CASE IS WHETHER THE FACTS ALLEGED,
UNDER ALL THE CIRCUMSTANCES, SHOW THAT THERE IS A SUBSTANTIAL
CONTROVERSY, BETWEEN PARTIES HAVING ADVERSE LEGAL INTERESTS, OF
SUFFICIENT IMMEDIACY AND REALITY TO WARRANT THE ISSUANCE OF A
DECLARATORY JUDGMENT."  MARYLAND CASUALTY CO. V. PACIFIC COAL & OIL
CO., 312 U.S. 270, 273 (1941). 

WE THINK THAT UNDER ALL THE CIRCUMSTANCES OF THE CASE THE FACT THAT
IT WAS MOST UNLIKELY THAT THE CONGRESSMAN WOULD AGAIN BE A CANDIDATE
FOR CONGRESS PRECLUDED A FINDING THAT THERE WAS "SUFFICIENT IMMEDIACY
AND REALITY" HERE.  /4/  THE ALLEGATIONS OF THE COMPLAINT FOCUS UPON
THE THEN FORTHCOMING 1966 ELECTION WHEN, IT WAS ALLEGED, THE
CONGRESSMAN WOULD AGAIN STAND FOR RE-ELECTION.  THE ANONYMOUS HANDBILLS
WHICH THE COMPLAINT IDENTIFIED AS TO BE DISTRIBUTED IN THE 1966 AND
SUBSEQUENT ELECTIONS WERE THE 1964 HANDBILL AND "SIMILAR ANONYMOUS
LEAFLETS."  ON THE RECORD THEREFORE THE ONLY SUPPORTABLE CONCLUSION WAS
THAT ZWICKLER'S SOLE CONCERN WAS LITERATURE RELATING TO THE CONGRESSMAN
AND HIS RECORD.  /5/  SINCE THE NEW YORK STATUTE'S PROHIBITION OF
ANONYMOUS HANDBILLS APPLIES ONLY TO HANDBILLS DIRECTLY PERTAINING TO
ELECTION CAMPAIGNS, AND THE PROSPECT WAS NEITHER REAL NOR IMMEDIATE OF
A CAMPAIGN INVOLVING THE CONGRESSMAN, IT WAS WHOLLY CONJECTURAL THAT
ANOTHER OCCASION MIGHT ARISE WHEN ZWICKLER MIGHT BE PROSECUTED FOR
DISTRIBUTING THE HANDBILLS REFERRED TO IN THE COMPLAINT.  HIS ASSERTION
IN HIS BRIEF THAT THE FORMER CONGRESSMAN CAN BE "A CANDIDATE FOR
CONGRESS AGAIN" IS HARDLY A SUBSTITUTE FOR EVIDENCE THAT THIS IS A
PROSPECT OF "IMMEDIACY AND REALITY."  THUS THE RECORD IS IN SHARP
CONTRAST TO THAT IN EVERS V. DWYER, 358 U.S. 202 (1958), RELIED UPON BY
THE DISTRICT COURT. 

IT WAS NOT ENOUGH TO SAY, AS DID THE DISTRICT COURT, THAT
NEVERTHELESS ZWICKLER HAS A "FURTHER AND FAR BROADER RIGHT TO A GENERAL
ADJUDICATION OF UNCONSTITUTIONALITY . . . (IN) (HIS OWN INTEREST AS
WELL AS THAT OF OTHERS WHO WOULD WITH LIKE ANONYMITY PRACTISE FREE
SPEECH IN A POLITICAL ENVIRONMENT . . . ."  THE CONSTITUTIONAL
QUESTION, FIRST AMENDMENT OR OTHERWISE, MUST BE PRESENTED IN THE
CONTEXT OF A SPECIFIC LIVE GRIEVANCE.  IN UNITED PUBLIC WORKERS OF
AMERICA V. MITCHELL, SUPRA, AT 89-90, WE SAID: 

     "THE POWER OF COURTS, AND ULTIMATELY OF THIS COURT, TO PASS

UPON THE CONSTITUTIONALITY OF ACTS OF CONGRESS ARISES ONLY WHEN

  THE INTERESTS OF LITIGANTS REQUIRE THE USE OF THIS JUDICIAL

  AUTHORITY FOR THEIR PROTECTION AGAINST ACTUAL INTERFERENCE.  A

  HYPOTHETICAL THREAT IS NOT ENOUGH." 

THE SAME IS TRUE OF THE POWER TO PASS UPON THE CONSTITUTIONALITY OF
STATE STATUTES.  NO FEDERAL COURT, WHETHER THIS COURT OR A DISTRICT
COURT, HAS "JURISDICTION TO PRONOUNCE ANY STATUTE, EITHER OF A STATE OR
OF THE UNITED STATES, VOID, BECAUSE IRRECONCILABLE WITH THE
CONSTITUTION, EXCEPT AS IT IS CALLED UPON TO ADJUDGE THE LEGAL RIGHTS
OF LITIGANTS IN ACTUAL CONTROVERSIES."  LIVERPOOL, N.Y. & P.S.S. CO. V.
COMMISSIONERS, 113 U.S. 33, 39 (1885).  SEE ALSO UNITED STATES V.
RAINES, 362 U.S. 17, 21 (1960).  THE EXPRESS LIMITATION OF THE
DECLARATORY JUDGMENT ACT TO CASES "OF ACTUAL CONTROVERSY" IS EXPLICIT
RECOGNITION OF THIS PRINCIPLE. 

WE CONCLUDE THAT ZWICKLER DID NOT ESTABLISH THE EXISTENCE AT THE
TIME OF THE HEARING ON THE REMAND OF THE ELEMENTS GOVERNING THE
ISSUANCE OF A DECLARATORY JUDGMENT, AND THEREFORE THAT THE DISTRICT
COURT SHOULD HAVE DISMISSED HIS COMPLAINT.  WE ACCORDINGLY INTIMATE NO
VIEW UPON THE CORRECTNESS OF THE DISTRICT COURT'S HOLDING AS TO THE
CONSTITUTIONALITY OF THE NEW YORK STATUTE.  THE JUDGMENT OF THE
DISTRICT COURT IS REVERSED, AND THE CASE IS REMANDED WITH DIRECTION TO
ENTER A NEW JUDGMENT DISMISSING THE COMPLAINT. 

              IT IS SO ORDERED. 

/1/  SECTION 781-B, IN PERTINENT PART, MADE IT A MISDEMEANOR TO
"DISTRIBUTE IN QUANTITY . . . ANY HANDBILL . . . WHICH CONTAINS ANY
STATEMENT . . . CONCERNING ANY POLITICAL PARTY, CANDIDATE . . . IN
CONNECTION WITH ANY ELECTION OF PUBLIC OFFICERS, PARTY OFFICIALS . .
.WITHOUT . . . REPRODUCING THEREON . . . THE NAME AND POST-OFFICE
ADDRESS OF THE . . . PERSON . . . AT WHOSE INSTANCE . . . SUCH HANDBILL
. . . IS SO . . . DISTRIBUTED . . . ." 

/2/  THE TEST OF THE 1964 HANDBILL IS AS FOLLOWS:

        "REPRESENTATIVE MULTER-- EXPLAIN YOUR POSITIONS "AID TO

           NASSER 

"ON SEPTEMBER 2, 1964, AN AMENDMENT WAS PROPOSED TO A FOREIGN AID
BILL (PUBLIC LAW 480).  IN SUBSTANCE, IT WOULD HAVE CUT OFF ALL AID TO
THE UNITED ARAB REPUBLIC.  CONGRESSMAN MULTER SPOKE AT LENGTH AGAINST
THE AMENDMENT, AND IN HIS OWN WORDS, URGED ITS DEFEAT 'AS EARNESTLY AS
I CAN.'  HE STATED THAT HIS POSITION WAS BASED ON 'HUMANITARIAN
INSTINCT.'  (CONGRESSIONAL RECORD 20792.) 

"IN THIS RESPECT, THE FOLLOWING SHOULD BE NOTED 

"(A) CONGRESSMAN MULTER'S STAND PERMITS THE DIVERSION OF FUNDS BY
DICTATOR NASSER TO HIS ARMAMENTS BUILDUP. 

"(B) THE UNITED ARAB REPUBLIC IS ALSO A RECIPIENT OF AID FROM
COMMUNIST RUSSIA. 

"(C) EGYPT IS NOW EMPLOYING THE TECHNICAL SKILLS OF SCIENTISTS,
FORMERLY UNDER THE EMPLOY OF THE NAZIS. 

"(D) CONGRESSMAN MULTER DEBATED AGAINST THE AMENDMENT ON THE EVE OF
THE SUMMIT CONFERENCE HELD IN CAIRO BY 13 ARAB STATES WHICH ARE
THREATENING THE PEACE OF THE NEAR EAST AND THE STATE OF ISRAEL IN
PARTICULAR. 

"SOVIET ANTI-SEMITISM 

"THE 1964 FOREIGN AID BILL WAS PASSED IN THE UNITED STATES SENATE
WITH AN AMENDMENT SPONSORED BY SENATOR ABRAHAM RIBICOFF (D., CONN.)
THAT STRONGLY CONDEMNED THE ANTI-SEMITIC PRACTICES OF THE SOVIET
UNION.  WHEN THIS ISSUE WAS BROUGHT TO THE HOUSE-SENATE CONFEREES, A
MUCH MORE GENERAL STATEMENT DECRYING ALL TYPES OF RELIGIOUS BIGOTRY WAS
ADOPTED. 

"REPRESENTATIVE MULTER PRAISED THIS 'WATERED DOWN' MEASURE ON THE
HOUSE FLOOR, AND STATED: 

"'WHILE THE SENATE VERSION DID POINT THE FINGER DIRECTLY AT SOVIET
RUSSIA, THE VERSION AS FINALLY ADOPTED, I THINK, IS MUCH THE BETTER
ONE. 

"'I BELIEVE, INSTEAD OF POINTING THE FINGER AT THE CULPRIT NOW
BEFORE THE BAR OF WORLD PUBLIC OPINION WHERE IT IS BEING SO SEVERELY
CONDEMNED, IT IS MUCH BETTER THAT THIS CONGRESS GO ON RECORD AS IT IS
DOING NOW, AGAINST RELIGIOUS PERSECUTION WHEREVER IT MAY RAISE ITS UGLY
HEAD.'  (CONGRESSIONAL RECORD 22850.) 

"WHY MR. MULTER, WHY?  ? ? ? ?" 

/3/  THE DECLARATORY JUDGMENT ACT, 28 U.S.C. 2201, EXPRESSLY
PROVIDES:  "IN A CASE OF ACTUAL CONTROVERSY WITHIN ITS JURISDICTION . .
. ANY COURT OF THE UNITED STATES, UPON THE FILING OF AN APPROPRIATE
PLEADING, MAY DECLARE THE RIGHTS AND OTHER LEGAL RELATIONS OF ANY
INTERESTED PARTY SEEKING SUCH DECLARATION, WHETHER OR NOT FURTHER
RELIEF IS OR COULD BE SOUGHT." 

/4/  THE FORMER CONGRESSMAN'S TERM OF OFFICE AS A STATE SUPREME
COURT JUSTICE IS 14 YEARS. 

/5/  THE ALLEGATION OF THE COMPLAINT THAT ZWICKLER MIGHT DISTRIBUTE
ANONYMOUS HANDBILLS RELATING TO "PARTY OFFICIALS" DOES NOT INDICATE
OTHERWISE.  THE CONGRESSMAN HELD AN ELECTIVE PARTY POSITION AS A
DISTRICT LEADER.  SEE 290 F.SUPP.,AT 248. 

SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL OF NEW YORK,
ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF WERE LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, AND BRENDA SOLOFF, ASSISTANT ATTORNEY
GENERAL. 

EMANUEL REDFIELD ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 

JOSEPH B. ROBISON AND BEVERLY COLEMAN FILED A BRIEF FOR THE AMERICAN
JEWISH CONGRESS, AS AMICUS CURIAE, URGING AFFIRMANCE. 
..END :











ALLEN V. STATE BOARD OF ELECTIONS, 393 U.S. 544 


       ALLEN ET AL. V. STATE BOARD OF ELECTIONS ET AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF VIRGINIA. 

        NO. 3.  ARGUED OCTOBER 15, 1968.-- DECIDED MARCH 3, 1969. 

      /1/ 


PURSUANT TO SECTION 4(B) OF THE VOTING RIGHTS ACT OF 1965 THE
PROVISIONS OF SEC. 4(A), SUSPENDING ALL "TESTS OR DEVICES" FOR FIVE
YEARS, WERE MADE APPLICABLE TO CERTAIN STATES, INCLUDING MISSISSIPPI
AND VIRGINIA.  AS A RESULT, THOSE STATES WERE PROHIBITED BY SEC. 5 FROM
ENACTING OR SEEKING "TO ADMINISTER ANY VOTING QUALIFICATION OR
PREREQUISITE TO VOTING, OR STANDARD, PRACTICE, OR PROCEDURE WITH
RESPECT TO VOTING DIFFERENT FROM THAT IN FORCE OR EFFECT ON NOVEMBER 1,
1964," WITHOUT FIRST SUBMITTING THE CHANGE TO THE U.S. ATTORNEY GENERAL
AND OBTAINING HIS CONSENT OR SECURING A FAVORABLE DECLARATORY JUDGMENT
FROM THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  IN NOS. 25, 26,
AND 36, APPELLANTS SOUGHT DECLARATORY JUDGMENTS IN THE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI THAT CERTAIN AMENDMENTS TO THE
MISSISSIPPI CODE WERE SUBJECT TO THE PROVISIONS OF SEC. 5 AND THUS NOT
ENFORCEABLE UNTIL THE STATE COMPLIED WITH THE APPROVAL REQUIREMENTS. 
IN NO. 25 THE AMENDMENT PROVIDED FOR AT-LARGE ELECTION OF COUNTY
SUPERVISORS INSTEAD OF ELECTION BY DISTRICTS.  IN NO. 26 THE AMENDMENT
ELIMINATED THE OPTION OF ELECTING OR APPOINTING SUPERINTENDENTS OF
EDUCATION IN 11 COUNTIES AND PROVIDED THAT THEY SHALL BE APPOINTED. 
THE AMENDMENT IN NO. 36 CHANGED THE REQUIREMENTS FOR INDEPENDENT
CANDIDATES RUNNING IN GENERAL ELECTIONS.  IN ALL THREE CASES THE THREE
JUDGE DISTRICT COURT RULED THAT THE AMENDMENTS DID NOT COME WITHIN THE
PURVIEW OF SEC. 5 AND DISMISSED THE COMPLAINTS.  NO. 3 CONCERNED A
BULLETIN ISSUED BY THE VIRGINIA BOARD OF ELECTIONS INSTRUCTING ELECTION
JUDGES TO ASSIST QUALIFIED, ILLITERATE VOTERS WHO REQUEST ASSISTANCE IN
MARKING BALLOTS.  APPELLANTS SOUGHT A DECLARATORY JUDGMENT IN THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA THAT THE STATUTE
PROVIDING FOR HANDWRITTEN WRITE-IN VOTES AND THE MODIFYING BULLETIN
VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND
THE VOTING RIGHTS ACT.  IN THE 1966 ELECTION APPELLANTS ATTEMPTED TO
USE LABELS FOR WRITE-IN CANDIDATES, BUT THE ELECTION OFFICIALS REFUSED
TO COUNT APPELLANTS'  BALLOTS.  APPELLANTS SOUGHT ONLY PROSPECTIVE
RELIEF, AS THE ELECTION OUTCOME WOULD NOT HAVE BEEN CHANGED IF THE
BALLOTS HAD BEEN COUNTED.  IN THE DISTRICT COURT THEY DID NOT ARGUE
THAT SEC. 5 PRECLUDED ENFORCEMENT OF THE PROCEDURE SET OUT IN THE
BULLETIN BUT THAT SEC. 4 SUSPENDED THE WRITE-IN REQUIREMENT.  THE THREE
JUDGE COURT DISMISSED THE COMPLAINT.  HELD: 

1.  SINCE THE VIRGINIA LEGISLATION WAS GENERALLY ATTACKED AS
INCONSISTENT WITH THE VOTING RIGHTS ACT, AND THERE IS NO FACTUAL
DISPUTE, THE COURT MAY, IN THE INTERESTS OF JUDICIAL ECONOMY, DETERMINE
THE APPLICABILITY IN NO. 3 OF SEC. 5 OF THE ACT, EVEN THOUGH THAT

2.  PRIVATE LITIGANTS MAY INVOKE THE JURISDICTION OF THE DISTRICT
COURTS TO OBTAIN RELIEF UNDER SEC. 5, TO INSURE THE ACT'S GUARANTEE
THAT NO PERSON SHALL BE DENIED THE RIGHT TO VOTE FOR FAILURE TO COMPLY
WITH AN UNAPPROVED NEW ENACTMENT SUBJECT TO THAT SECTION.  PP. 554
557. 

3.  THE RESTRICTION OF SEC. 14(B) OF THE ACT, WHICH PROVIDES THAT
"(NO COURT OTHER THAN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA .
. . SHALL HAVE JURISDICTION TO ISSUE ANY DECLARATORY JUDGMENT PURSUANT
TO (SEC. 5) OR ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT
INJUNCTION AGAINST THE EXECUTION OR ENFORCEMENT OF ANY PROVISION OF
THIS SUBCHAPTER," DOES NOT APPLY TO SUITS BROUGHT BY PRIVATE LITIGANTS
SEEKING A DECLARATORY JUDGMENT THAT A NEW STATE ENACTMENT IS SUBJECT TO
SEC. 5'S APPROVAL REQUIREMENTS, AND THESE ACTIONS MAY BE BROUGHT IN THE
LOCAL DISTRICT COURTS.  PP. 557-560. 

4.  IN LIGHT OF THE EXTRAORDINARY NATURE OF THE ACT AND ITS EFFECT
ON FEDERAL-STATE RELATIONSHIPS, AND THE UNIQUE APPROVAL REQUIREMENTS OF
SEC. 5, WHICH ALSO PROVIDES THAT "(ANY ACTION UNDER THIS SECTION SHALL
BE HEARD AND DETERMINED BY A COURT OF THREE JUDGES," DISPUTES INVOLVING
THE COVERAGE OF SEC. 5 SHOULD BE DETERMINED BY THREE-JUDGE COURTS.  PP.
560-563. 

5.  THE STATE STATUTES INVOLVED IN THESE CASES ARE SUBJECT TO THE
APPROVAL REQUIREMENTS OF SEC. 5.  PP. 563-571. 

(A) THE ACT, WHICH GIVES A BROAD INTERPRETATION TO THE RIGHT TO VOTE
AND RECOGNIZES THAT VOTING INCLUDES "ALL ACTION NECESSARY TO MAKE A
VOTE EFFECTIVE," WAS AIMED AT THE SUBTLE AS WELL AS THE OBVIOUS STATE
REGULATIONS WHICH HAVE THE EFFECT OF DENYING CITIZENS THEIR RIGHT TO
VOTE BECAUSE OF RACE.  PP. 565-566. 

(B) THE LEGISLATIVE HISTORY LENDS SUPPORT TO THE VIEW THAT CONGRESS
INTENDED TO REACH ANY ENACTMENT WHICH ALTERED THE ELECTION LAW OF A
COVERED STATE IN EVEN A MINOR WAY.  PP. 566-569. 

(C) THERE IS NO DIRECT CONFLICT BETWEEN THE COURT'S INTERPRETATION
OF THIS ACT AND THE PRINCIPLES ESTABLISHED BY THE REAPPORTIONMENT
CASES, AND CONSIDERATION OF ANY POSSIBLE CONFLICT SHOULD AWAIT A
CONCRETE CASE.  P. 569. 

(D) THE ENACTMENT IN EACH OF THESE CASES CONSTITUTES A "VOTING
QUALIFICATION OR PREREQUISITE TO VOTING, OR STANDARD, PRACTICE, OR
PROCEDURE WITH RESPECT TO VOTING" WITHIN THE MEANING OF SEC. 5.  PP.
569-571. 

6.  THE ACT REQUIRES THAT THE STATE MUST IN SOME UNAMBIGUOUS AND
RECORDABLE MANNER SUBMIT ANY LEGISLATION OR REGULATION TO THE ATTORNEY
GENERAL WITH A REQUEST FOR HIS CONSIDERATION PURSUANT TO THE ACT, AND
THERE IS NO "SUBMISSION" WHEN THE ATTORNEY GENERAL MERELY BECOMES AWARE
OF THE LEGISLATION OR WHEN BRIEFS ARE SERVED ON HIM.  P. 571. 

7.  IN VIEW OF THE COMPLEXITY OF THESE ISSUES OF FIRST IMPRESSION,
THE LACK OF DELIBERATE DEFIANCE OF THE ACT RESULTING FROM THE STATES'
FAILURE TO SUBMIT THE ENACTMENTS FOR APPROVAL, AND THE FACT THAT THE
DISCRIMINATORY PURPOSE OR EFFECT OF THESE STATUTES, IF ANY, HAS NOT
BEEN JUDICIALLY DETERMINED, THIS DECISION HAS PROSPECTIVE EFFECT ONLY. 
THE STATES REMAIN SUBJECT TO THE CONTINUING STRICTURES OF SEC. 5 UNTIL
THEY OBTAIN FROM THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA A
DECLARATORY JUDGMENT THAT FOR AT LEAST FIVE YEARS THEY HAVE NOT USED
THE "TESTS OR DEVICES" PROSCRIBED BY SEC. 4.  PP. 571-572. 

NO. 3, 268 F.SUPP.  218, VACATED AND REMANDED.  NO. 25, 282 F.SUPP. 
164; NO. 26, 281 F.SUPP.  918; AND NO. 36, EACH REVERSED AND REMANDED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THESE FOUR CASES, THREE FROM MISSISSIPPI AND ONE FROM VIRGINIA,
INVOLVE THE APPLICATION OF THE VOTING RIGHTS ACT OF 1965 /1A/  TO STATE
ELECTION LAWS AND REGULATIONS.  THE MISSISSIPPI CASES WERE CONSOLIDATED
ON APPEAL AND ARGUED TOGETHER IN THIS COURT.  BECAUSE OF THE GROUNDS ON
WHICH WE DECIDE ALL FOUR CASES, THE APPEAL IN THE VIRGINIA CASE IS ALSO
DISPOSED OF BY THIS OPINION.  /2/ 

IN SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301 (1966), WE HELD THE
PROVISIONS OF THE ACT INVOLVED IN THESE CASES TO BE CONSTITUTIONAL. 
THESE CASES MERELY REQUIRE US TO DETERMINE WHETHER THE VARIOUS STATE
ENACTMENTS INVOLVED ARE SUBJECT TO THE REQUIREMENTS OF THE ACT. 

WE GAVE DETAILED TREATMENT TO THE HISTORY AND PURPOSES OF THE VOTING
RIGHTS ACT IN SOUTH CAROLINA V. KATZENBACH, SUPRA.  BRIEFLY, THE ACT
IMPLEMENTED CONGRESS' FIRM INTENTION TO RID THE COUNTRY OF RACIAL
DISCRIMINATION IN VOTING.  IT PROVIDED STRINGENT NEW REMEDIES AGAINST
THOSE PRACTICES WHICH HAVE MOST FREQUENTLY DENIED CITIZENS THE RIGHT TO
VOTE ON THE BASIS OS THEIR RACE.  THUS, IN STATES COVERED BY THE ACT,
/3/  LITERACY TESTS AND SIMILAR VOTING QUALIFICATIONS WERE SUSPENDED
FOR A PERIOD OF FIVE YEARS FROM THE LAST OCCURRENCE OF SUBSTANTIAL
VOTING DISCRIMINATION.  HOWEVER, CONGRESS APPARENTLY FEARED THAT THE
MERE SUSPENSION OF EXISTING TESTS WOULD NOT COMPLETELY SOLVE THE
PROBLEM, GIVEN THE HISTORY SOME STATES HAD OF SIMPLY ENACTING NEW AND
SLIGHTLY DIFFERENT REQUIREMENTS WITH THE SAME DISCRIMINATORY EFFECT. 
/4/  NOT UNDERESTIMATING THE INGENUITY OF THOSE BENT ON PREVENTING
NEGROES FROM VOTING, CONGRESS THEREFORE ENACTED SEC. 5, THE FOCAL POINT
OF THESE CASES. 

UNDER SEC. 5, IF A STATE COVERED BY THE ACT PASSES ANY "VOTING
QUALIFICATION OR PREREQUISITE TO VOTING, OR STANDARD, PRACTICE, OR
PROCEDURE WITH RESPECT TO VOTING DIFFERENT FROM THAT IN FORCE OR EFFECT
ON NOVEMBER 1, 1964," NO PERSON CAN BE DEPRIVED OF HIS RIGHT TO VOTE
"FOR FAILURE TO COMPLY WITH" THE NEW ENACTMENT "UNLESS AND UNTIL" THE
STATE SEEKS AND RECEIVES A DECLARATORY JUDGMENT IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THAT THE NEW ENACTMENT
"DOES NOT HAVE THE PURPOSE AND WILL NOT HAVE THE EFFECT OF DENYING OR
ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR."  79 STAT.
439, 42 U.S.C. 1973C (1964 ED. SUPP. I).  SEE APPENDIX, INFRA. 

HOWEVER, SEC. 5 DOES NOT NECESSITATE THAT A COVERED STATE OBTAIN A
DECLARATORY JUDGMENT ACTION BEFORE IT CAN ENFORCE ANY CHANGE IN ITS
ELECTION LAWS.  IT PROVIDES THAT A STATE MAY ENFORCE A NEW ENACTMENT IF
THE STATE SUBMITS THE NEW PROVISION TO THE ATTORNEY GENERAL OF THE
UNITED STATES AND, WITHIN 60 DAYS OF THE SUBMISSION, THE ATTORNEY
GENERAL DOES NOT FORMALLY OBJECT TO THE NEW STATUTE OR REGULATION.  THE
ATTORNEY GENERAL DOES NOT ACT AS A COURT IN APPROVING OR DISAPPROVING
THE STATE LEGISLATION.  IF THE ATTORNEY GENERAL OBJECTS TO THE NEW
ENACTMENT, THE STATE MAY STILL ENFORCE THE LEGISLATION UPON SECURING A
DECLARATORY JUDGMENT IN THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA.  ALSO, THE STATE IS NOT REQUIRED TO FIRST SUBMIT THE NEW
ENACTMENT TO THE ATTORNEY GENERAL AS IT MAY GO DIRECTLY TO THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA.  THE PROVISION FOR SUBMISSION TO
THE ATTORNEY GENERAL MERELY GIVES THE COVERED STATE A RAPID METHOD OF
RENDERING A NEW STATE ELECTION LAW ENFORCEABLE.  /5/  ONCE THE STATE
HAS SUCCESSFULLY COMPLIED WITH THE SEC. 5.  APPROVAL REQUIREMENTS,
PRIVATE PARTIES MAY ENJOIN THE ENFORCEMENT OF THE NEW ENACTMENT ONLY IN
TRADITIONAL SUITS ATTACKING ITS CONSTITUTIONALITY; THERE IS NO FURTHER
REMEDY PROVIDED BY SEC. 5. 

IN THESE FOUR CASES, THE STATES HAVE PASSED NEW LAWS OR ISSUED NEW
REGULATIONS.  THE CENTRAL ISSUE IS WHETHER THESE PROVISIONS FALL WITHIN
THE PROHIBITION OF SEC. 5 THAT PREVENTS THE ENFORCEMENT OF "ANY VOTING
QUALIFICATION OR PREREQUISITE TO VOTING, OR STANDARD, PRACTICE, OR
PROCEDURE WITH RESPECT TO VOTING" UNLESS THE STATE FIRST COMPLIES WITH
ONE OF THE SECTION'S APPROVAL PROCEDURES. 

NO. 25, FAIRLEY V. PATTERSON, INVOLVES A 1966 AMENDMENT TO SEC. 2870
OF THE MISSISSIPPI CODE OF 1942.  /6/  THE AMENDMENT PROVIDES THAT THE
BOARD OF SUPERVISORS OF EACH COUNTY MAY ADOPT AN ORDER PROVIDING THAT
BOARD MEMBERS BE ELECTED AT LARGE BY ALL QUALIFIED ELECTORS OF THE
COUNTY.  PRIOR TO THE 1966 AMENDMENT, ALL COUNTIES BY LAW WERE DIVIDED
INTO FIVE DISTRICTS; EACH DISTRICT ELECTED ONE MEMBER OF THE BOARD OF
SUPERVISORS.  AFTER THE AMENDMENT, ADAMS AND FORREST COUNTIES ADOPTED
THE AUTHORIZED ORDERS, SPECIFYING THAT EACH CANDIDATE MUST RUN AT
LARGE, BUT ALSO REQUIRING THAT EACH CANDIDATE BE A RESIDENT OF THE
COUNTY DISTRICT HE SEEKS TO REPRESENT. 

THE APPELLANTS ARE QUALIFIED ELECTORS AND POTENTIAL CANDIDATES IN
THE TWO COUNTIES.  THEY SOUGHT A DECLARATORY JUDGMENT IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI THAT THE
AMENDMENT TO SEC. 2870 WAS SUBJECT TO THE PROVISIONS OF SEC. 5 OF THE
ACT AND HENCE COULD NOT BE ENFORCED UNTIL THE STATE COMPLIED WITH THE
APPROVAL REQUIREMENTS OF SEC. 5.  /7/ 

NO. 26, BUNTON V. PATTERSON, CONCERNS A 1966 AMENDMENT TO SEC. 6271
08 OF THE MISSISSIPPI CODE.  /8/  THE AMENDMENT PROVIDES THAT IN 11
SPECIFIED COUNTIES, THE COUNTY SUPERINTENDENT OF EDUCATION SHALL BE
APPOINTED BY THE BOARD OF EDUCATION.  BEFORE THE ENACTMENT OF THIS
AMENDMENT, ALL THESE COUNTIES HAD THE OPTION OF ELECTING OR APPOINTING
THE SUPERINTENDENT.  APPELLANTS ARE QUALIFIED ELECTORS AND POTENTIAL
CANDIDATES FOR THE POSITION OF COUNTY SUPERINTENDENT OF EDUCATION IN
THREE OF THE COUNTIES COVERED BY THE 1966 AMENDMENT.  THEY SOUGHT A
DECLARATORY JUDGMENT THAT THE AMENDMENT WAS SUBJECT TO SEC 5, AND THUS
UNENFORCEABLE UNLESS THE STATE COMPLIED WITH THE SEC. 5 APPROVAL
REQUIREMENTS. 

NO. 36, WHITLEY V. WILLIAMS, INVOLVES A 1966 AMENDMENT TO SEC. 3260
OF THE MISSISSIPPI CODE, WHICH CHANGED THE REQUIREMENTS FOR INDEPENDENT
CANDIDATES RUNNING IN GENERAL ELECTIONS.  /9/  THE AMENDMENT MAKES FOUR
REVISIONS:  (1) IT ESTABLISHES A NEW RULE THAT NO PERSON WHO HAS VOTED
IN A PRIMARY ELECTION MAY THEREAFTER BE PLACED ON THE BALLOT AS AN
INDEPENDENT CANDIDATE IN THE GENERAL ELECTION; (2) THE TIME FOR FILING
A PETITION AS AN INDEPENDENT CANDIDATE IS CHANGED TO 60 DAYS BEFORE THE
PRIMARY ELECTION FROM THE PREVIOUS 40 DAYS BEFORE THE GENERAL ELECTION;
(3) THE NUMBER OF SIGNATURES OF QUALIFIED ELECTORS NEEDED FOR THE
INDEPENDENT QUALIFYING PETITION IS INCREASED SUBSTANTIALLY; AND (4) A
NEW PROVISION IS ADDED THAT EACH QUALIFIED ELECTOR WHO SIGNS THE
INDEPENDENT QUALIFYING PETITION MUST PERSONALLY SIGN THE PETITION AND
MUST INCLUDE HIS POLLING PRECINCT AND COUNTY.  APPELLANTS ARE POTENTIAL
CANDIDATES WHOSE NOMINATING PETITIONS FOR INDEPENDENT LISTING ON THE
BALLOT WERE REJECTED FOR FAILURE TO COMPLY WITH ONE OR MORE OF THE
AMENDED PROVISIONS.  /10/ 

IN ALL THREE OF THESE CASES, THE THREE-JUDGE DISTRICT COURT RULED
THAT THE AMENDMENTS TO THE MISSISSIPPI CODE DID NOT COME WITHIN THE
PURVIEW OF AND ARE NOT COVERED BY SEC. 5, AND DISMISSED THE
COMPLAINTS.  /11/  APPELLANTS BROUGHT DIRECT APPEALS TO THIS COURT. 
/12/  WE CONSOLIDATED THE CASES AND POSTPONED CONSIDERATION OF
JURISDICTION TO A HEARING ON THE MERITS.  392 U.S. 902 (1968). 

NO. 3, ALLEN V. STATE BOARD OF ELECTIONS, CONCERNS A BULLETIN ISSUED
BY THE VIRGINIA BOARD OF ELECTIONS TO ALL ELECTION JUDGES.  THE
BULLETIN WAS AN ATTEMPT TO MODIFY THE PROVISIONS OF SEC. 24-252 OF THE
CODE OF VIRGINIA OF 1950 WHICH PROVIDES, INTER ALIA, THAT "ANY VOTER
(MAY) PLACE ON THE OFFICIAL BALLOT THE NAME OF ANY PERSON IN HIS OWN
HANDWRITING.  . . . "  /13/  THE VIRGINIA CODE (SEC. 24-251) FURTHER
PROVIDES THAT VOTERS WITH A PHYSICAL INCAPACITY MAY BE ASSISTED IN
PREPARING THEIR BALLOTS.  FOR EXAMPLE, ONE WHO IS BLIND MAY BE AIDED IN
THE PREPARATION OF HIS BALLOT BY A PERSON OF HIS CHOICE.  THOSE UNABLE
TO MARK THEIR BALLOTS DUE TO ANY OTHER PHYSICAL DISABILITY MAY BE
ASSISTED BY ONE OF THE ELECTION JUDGES.  HOWEVER, NO STATUTORY
PROVISION IS MADE FOR ASSISTANCE TO THOSE WHO WISH TO WRITE IN A NAME,
BUT WHO ARE UNABLE TO DO SO BECAUSE OF ILLITERACY.  WHEN VIRGINIA WAS
BROUGHT UNDER THE COVERAGE OF THE VOTING RIGHTS ACT OF 1965, VIRGINIA
ELECTION OFFICIALS APPARENTLY THOUGHT THAT THE PROVISION IN SEC. 24
252, REQUIRING A VOTER TO CAST A WRITE-IN VOTE IN THE VOTER'S OWN
HANDWRITING, WAS INCOMPATIBLE WITH THE PROVISIONS OF SEC. 4(A) OF THE
ACT SUSPENDING THE ENFORCEMENT OF ANY TEST OR DEVICE AS A PREREQUISITE
TO VOTING.  /14/  THEREFORE, THE BOARD OF ELECTIONS ISSUED A BULLETIN
TO ALL ELECTION JUDGES, INSTRUCTING THAT THE ELECTION JUDGE COULD AID
ANY QUALIFIED VOTER IN THE PREPARATION OF HIS BALLOT, IF THE VOTER SO
REQUESTS AND IF THE VOTER IS UNABLE TO MARK HIS BALLOT DUE TO
ILLITERACY.  /15/ 

APPELLANTS ARE FUNCTIONALLY ILLITERATE REGISTERED VOTERS FROM THE
FOURTH CONGRESSIONAL DISTRICT OF VIRGINIA.  THEY BROUGHT A DECLARATORY
JUDGMENT ACTION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA, CLAIMING THAT SEC. 24-252 AND THE MODIFYING
BULLETIN VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT AND THE VOTING RIGHTS ACT OF 1965.  A THREE-JUDGE COURT WAS
CONVENED AND THE COMPLAINT DISMISSED.  /16/  A DIRECT APPEAL WAS
BROUGHT TO THIS COURT AND WE POSTPONED CONSIDERATION OF JURISDICTION TO
A HEARING ON THE MERITS.  392 U.S. 902 (1968). 

IN THE 1966 ELECTIONS, APPELLANTS ATTEMPTED TO VOTE FOR A WRITE-IN
CANDIDATE BY STICKING LABELS, PRINTED WITH THE NAME OF THEIR CANDIDATE,
ON THE BALLOT.  THE ELECTION OFFICIALS REFUSED TO COUNT APPELLANTS'
BALLOTS, CLAIMING THAT THE VIRGINIA ELECTION LAW DID NOT AUTHORIZE
MARKING BALLOTS WITH LABELS.  AS THE ELECTION OUTCOME WOULD NOT HAVE
BEEN CHANGED HAD THE DISPUTED BALLOTS BEEN COUNTED, APPELLANTS SOUGHT
ONLY PROSPECTIVE RELIEF.  IN THE DISTRICT COURT, APPELLANTS DID NOT
ASSERT THAT SEC. 5 PRECLUDED ENFORCEMENT OF THE PROCEDURE PRESCRIBED BY
THE BULLETIN.  RATHER, THEY ARGEUD SEC. 4 SUSPENDED ALTOGETHER THE
REQUIREMENT OF SEC. 24-252 THAT THE VOTER WRITE THE NAME OF HIS CHOICE
IN THE VOTER'S OWN HANDWRITING.  APPELLANTS FIRST RAISED THE
APPLICABILITY OF SEC. 5 IN THEIR JURISDICTIONAL STATEMENT FILED WITH
THIS COURT.  WE ARE NOT PRECLUDED FROM CONSIDERING THE APPLICABILITY OF
SEC. 5, HOWEVER.  THE VIRGINIA LEGISLATION WAS GENERALLY ATTACKED ON
THE GROUND THAT IT WAS INCONSISTENT WITH THE VOTING RIGHTS ACT.  WHERE
ALL THE FACTS ARE UNDISPUTED, THIS COURT MAY, IN THE INTERESTS OF
JUDICIAL ECONOMY, DETERMINE THE APPLICABILITY OF THE PROVISIONS OF THAT
ACT, EVEN THOUGH SOME SPECIFIC SECTIONS WERE NOT ARGUED BELOW.  /17/ 

WE POSTPONED CONSIDERATION OF OUR JURISDICTION IN THESE CASES TO A
HEARING ON THE MERITS.  THEREFORE, BEFORE REACHING THE MERITS, WE FIRST
DETERMINE WHETHER THESE CASES ARE PROPERLY BEFORE US ON DIRECT APPEAL
FROM THE DISTRICT COURTS. 

        I. 

THESE SUITS WERE INSTITUTED BY PRIVATE CITIZENS; AN INITIAL QUESTION
IS WHETHER PRIVATE LITIGANTS MAY INVOKE THE JURISDICTION OF THE
DISTRICT COURTS TO OBTAIN THE RELIEF REQUESTED IN THESE SUITS.  28
U.S.C. 1343 PROVIDES:  "THE DISTRICT COURTS SHALL HAVE ORIGINAL
JURISDICTION OF ANY CIVIL ACTION AUTHORIZED BY LAW TO BE COMMENCED BY
ANY PERSON: . . . (4) TO RECOVER DAMAGES OR TO SECURE EQUITABLE OR
OTHER RELIEF UNDER ANY ACT OF CONGRESS PROVIDING FOR THE PROTECTION OF
CIVIL RIGHTS, INCLUDING THE RIGHT TO VOTE."  CLEARLY, IF SEC. 5
AUTHORIZES APPELLANTS TO SECURE THE RELIEF SOUGHT, THE DISTRICT COURTS
HAD JURISDICTION OVER THESE SUITS. 

THE VOTING RIGHTS ACT DOES NOT EXPLICITLY GRANT OR DENY PRIVATE
PARTIES AUTHORIZATION TO SEEK A DECLARATORY JUDGMENT THAT A STATE HAS
FAILED TO COMPLY WITH THE PROVISIONS OF THE ACT.  /18/  HOWEVER, SEC. 5
DOES PROVIDE THAT "NO PERSON SHALL BE DENIED THE RIGHT TO VOTE FOR
FAILURE TO COMPLY WITH (A NEW STATE ENACTMENT COVERED BY, BUT NOT
APPROVED UNDER, SEC. 5)."  ANALYSIS OF THIS LANGUAGE IN LIGHT OF THE
MAJOR PURPOSE OF THE ACT INDICATES THAT APPELLANTS MAY SEEK A
DECLARATORY JUDGMENT THAT A NEW STATE ENACTMENT IS GOVERNED BY SEC. 5. 
FURTHER, AFTER PROVING THAT THE STATE HAS FAILED TO SUBMIT THE COVERED
ENACTMENT FOR SEC. 5 APPROVAL, THE PRIVATE PARTY HAS STANDING TO OBTAIN
AN INJUNCTION AGAINST FURTHER ENFORCEMENT, PENDING THE STATE'S
SUBMISSION OF THE LEGISLATION PURSUANT TO SEC. 5.  /19/ 

THE ACT WAS DRAFTED TO MAKE THE GUARANTEES OF THE FIFTEENTH
AMENDMENT FINALLY A REALITY FOR ALL CITIZENS.  SOUTH CAROLINA V.
KATZENBACH, SUPRA, AT 308, 309.  CONGRESS REALIZED THAT EXISTING
REMEDIES WERE INADEQUATE TO ACCOMPLISH THIS PURPOSE AND DRAFTED AN
UNUSUAL, AND IN SOME ASPECTS A SEVERE, PROCEDURE FOR INSURING THAT
STATES WOULD NOT DISCRIMINATE ON THE BASIS OF RACE IN THE ENFORCEMENT
OF THEIR VOTING LAWS.  /20/ 

THE ACHIEVEMENT OF THE ACT'S LAUDABLE GOAL COULD BE SEVERELY
HAMPERED, HOWEVER, IF EACH CITIZEN WERE REQUIRED TO DEPEND SOLELY ON
LITIGATION INSTITUTED AT THE DISCRETION OF THE ATTORNEY GENERAL.  /21/
FOR EXAMPLE, THE PROVISIONS OF THE ACT EXTEND TO STATES AND THE
SUBDIVISIONS THEREOF.  THE ATTORNEY GENERAL HAS A LIMITED STAFF AND
OFTEN MIGHT BE UNABLE TO UNCOVER QUICKLY NEW REGULATIONS AND ENACTMENTS
PASSED AT THE VARYING LEVELS OF STATE GOVERNMENT.  /22/  IT IS
CONSISTENT WITH THE BROAD PURPOSE OF THE ACT TO ALLOW THE INDIVIDUAL
CITIZEN STANDING TO INSURE THAT HIS CITY OR COUNTY GOVERNMENT COMPLIES
WITH THE SEC. 5 APPROVAL REQUIREMENTS.     WE HAVE PREVIOUSLY HELD THAT
A FEDERAL STATUTE PASSED TO PROTECT A CLASS OF CITIZENS, ALTHOUGH NOT
SPECIFICALLY AUTHORIZING MEMBERS OF THE PROTECTED CLASS TO INSTITUTE
SUIT, NEVERTHELESS IMPLIED A PRIVATE RIGHT OF ACTION.  IN J. I. CASE
CO. V. BORAK, 377 U.S. 426 (1964), WE WERE CALLED UPON TO CONSIDER SEC.
14(A) OF THE SECURITIES EXCHANGE ACT OF 1934.  48 STAT. 895, 15 U.S.C.
78NA).  THAT SECTION PROVIDES THAT IT SHALL BE "UNLAWFUL FOR ANY PERSON
. . . (TO VIOLATE) SUCH RULES AND REGULATIONS AS THE COMMISSION MAY
PRESCRIBE AS NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE
PROTECTION OF INVESTORS."  WE HELD THAT "(WHILE THIS LANGUAGE MAKES NO
SPECIFIC REFERENCE TO A PRIVATE RIGHT OF ACTION, AMONG ITS CHIEF
PURPOSES IS 'THE PROTECTION OF INVESTORS,' WHICH CERTAINLY IMPLIES THE
AVAILABILITY OF JUDICIAL RELIEF WHERE NECESSARY TO ACHIEVE THAT
RESULT."  377 U.S.,AT 432. 

A SIMILAR ANALYSIS IS APPLICABLE HERE.  THE GUARANTEE OF SEC. 5 THAT
NO PERSON SHALL BE DENIED THE RIGHT TO VOTE FOR FAILURE TO COMPLY WITH
AN UNAPPROVED NEW ENACTMENT SUBJECT TO SEC. 5, MIGHT WELL PROVE AN
EMPTY PROMISE UNLESS THE PRIVATE CITIZEN WERE ALLOWED TO SEEK JUDICIAL
ENFORCEMENT OF THE PROHIBITION.  /23/

        II. 

ANOTHER QUESTION INVOLVING THE JURISDICTION OF THE DISTRICT COURTS
IS PRESENTED BY SEC. 14(B) OF THE ACT.  IT PROVIDES THAT "(NO COURT
OTHER THAN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA . . . SHALL
HAVE JURISDICTION TO ISSUE ANY DECLARATORY JUDGMENT PURSUANT TO (SEC.
5) OR ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT INJUNCTION
AGAINST THE EXECUTION OR ENFORCEMENT OF ANY PROVISION OF THIS ACT.  . .
. "  79 STAT. 445, 42 U.S.C. 1973LB) (1964 ED., SUPP. I).  THE
APPELLANTS SOUGHT DECLARATORY JUDGMENTS THAT THE STATE ENACTMENTS WERE
SUBJECT TO SEC. 5 OF THE ACT; APPELLEES THUS ARGUE THAT THESE ACTIONS
COULD BE INITIATED ONLY IN THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PROVISIONS.  SECTION 12(F) PROVIDES THAT THE DISTRICT COURTS SHALL HAVE
JURISDICTION OVER ACTIONS BROUGHT PURSUANT TO SEC. 12(D) TO ENJOIN A
PERSON FROM ACTING WHEN "THERE ARE REASONABLE GROUNDS TO BELIEVE THAT
(SUCH PERSON) IS ABOUT TO ENGAGE IN ANY ACT OR PRACTICE PROHIBITED BY
(SEC. 5)."  /24/  THESE SEC. 12(F) INJUNCTIVE ACTIONS ARE
DISTINGUISHABLE FROM THE ACTIONS MENTIONED IN SEC. 14(B).  THE SEC.
14(B) INJUNCTIVE ACTION IS ONE AIMED AT PROHIBITING ENFORCEMENT OF THE
PROVISIONS OF THE VOTING RIGHTS ACT, AND WOULD INVOLVE AN ATTACK ON THE
CONSTITUTIONALITY OF THE ACT ITSELF.  SEE KATZENBACH V. MORGAN, 384
U.S. 641 (1966).  ON THE OTHER HAND, THE SEC. 12(F) ACTION IS AIMED AT
PROHIBITING THE ENFORCEMENT OF A STATE ENACTMENT THAT IS FOR SOME
REASON VIOLATIVE OF THE ACT.  CF. UNITED STATES V. WARD, 352 F.2D 329
(C.A. 5TH CIR. 1965); PEREZ V. RHIDDLEHOOVER, 247 F.SUPP.  65 (D.C.E.D.
LA. 1965). 

A SIMILAR DISTINCTION IS POSSIBLE WITH RESPECT TO DECLARATORY
JUDGMENTS.  A DECLARATORY JUDGMENT BROUGHT BY THE STATE PURSUANT TO
SEC. 5 REQUIRES AN ADJUDICATION THAT A NEW ENACTMENT DOES NOT HAVE THE
PURPOSE OR EFFECT OF RACIAL DISCRIMINATION.  HOWEVER, A DECLARATORY
JUDGMENT ACTION BROUGHT BY A PRIVATE LITIGANT DOES NOT REQUIRE THE
COURT TO REACH THIS DIFFICULT SUBSTANTIVE ISSUE.  THE ONLY ISSUE IS
WHETHER A PARTICULAR STATE ENACTMENT IS SUBJECT TO THE PROVISIONS OF
THE VOTING RIGHTS ACT, AND THEREFORE MUST BE SUBMITTED FOR APPROVAL
BEFORE ENFORCEMENT.  THE DIFFERENCE IN THE MAGNITUDE OF THESE TWO
ISSUES SUGGESTS THAT CONGRESS DID NOT INTEND THAT BOTH CAN BE DECIDED
ONLY BY THE DISTRICT OF COLUMBIA DISTRICT COURT.  INDEED, THE SPECIFIC
GRANT OF JURISDICTION TO THE DISTRICT COURTS IN SEC. 12(F) INDICATES
CONGRESS INTENDED TO TREAT "COVERAGE" QUESTIONS DIFFERENTLY FROM
"SUBSTANTIVE DISCRIMINATION" QUESTIONS.  SEE PEREZ V. RHIDDLEHOOVER,
SUPRA, AT 72. 

MOREOVER, AS WE INDICATED IN SOUTH CAROLINA V. KATZENBACH, SUPRA,
THE POWER OF CONGRESS TO REQUIRE SUITS TO BE BROUGHT ONLY IN THE
DISTRICT OF COLUMBIA DISTRICT COURT IS GROUNDED IN CONGRESS' POWER,
UNDER ART. III, SEC. 1, TO "ORDAIN AND ESTABLISH" INFERIOR FEDERAL
TRIBUNALS.  WE FURTHER NOTED CONGRESS DID NOT EXCEED CONSTITUTIONAL
BOUNDS IN IMPOSING LIMITATIONS ON "LITIGATION AGAINST THE FEDERAL
GOVERNMENT.  . . . "  383 U.S.,AT 332.  OF COURSE, IN DECLARATORY
JUDGMENT ACTIONS BROUGHT BY PRIVATE LITIGANTS, THE UNITED STATES WILL
NOT BE A PARTY.  THIS DISTINCTION FURTHER SUGGESTS INTERPRETING SEC.
14(B) AS APPLYING ONLY TO DECLARATORY JUDGMENT ACTIONS BROUGHT BY THE
STATE. 

THERE ARE STRONG REASONS FOR ADOPTION OF THIS INTERPRETATION. 
REQUIRING THAT DECLARATORY JUDGMENT ACTIONS BE BROUGHT IN THE DISTRICT
OF COLUMBIA PLACES A BURDEN ON THE PLAINTIFF.  THE ENORMITY OF THE
BURDEN, OF COURSE, WILL VARY WITH THE SIZE OF THE PLAINTIFF'S
RESOURCES.  ADMITTEDLY, IT WOULD BE EASIER FOR STATES TO BRING SEC. 5
ACTIONS IN THE DISTRICT COURTS IN THEIR OWN STATES.  HOWEVER, THE STATE
HAS SUFFICIENT RESOURCES TO PROSECUTE THE ACTIONS EASILY IN THE
NATION'S CAPITAL; AND, CONGRESS HAS POWER TO REGULATE WHICH FEDERAL
COURT SHALL HEAR SUITS AGAINST THE FEDERAL GOVERNMENT.  ON THE OTHER
HAND, THE INDIVIDUAL LITIGANT WILL OFTEN NOT HAVE SUFFICIENT RESOURCES
TO MAINTAIN AN ACTION EASILY OUTSIDE THE DISTRICT IN WHICH HE RESIDES,
ESPECIALLY IN CASES WHERE THE INDIVIDUAL LITIGANT IS ATTACKING A LOCAL
CITY OR COUNTY REGULATION.  THUS, FOR THE INDIVIDUAL LITIGANT, THE
DISTRICT OF COLUMBIA BURDEN MAY BE SUFFICIENT TO PRECLUDE HIM FROM
BRINGING SUIT. 

WE HOLD THAT THE RESTRICTION OF SEC. 14(B) DOES NOT APPLY TO SUITS
BROUGHT BY PRIVATE LITIGANTS SEEKING A DECLARATORY JUDGMENT THAT A NEW
STATE ENACTMENT IS SUBJECT TO THE APPROVAL REQUIREMENTS OF SEC. 5, AND
THAT THESE ACTIONS MAY BE BROUGHT IN THE LOCAL DISTRICT COURT PURSUANT
TO 28 U.S.C. 1343(4). 

        III. 

A FINAL JURISDICTIONAL QUESTION REMAINS.  THESE ACTIONS WERE ALL
HEARD BEFORE THREE-JUDGE DISTRICT COURTS.  WE HAVE JURISDICTION OVER AN
APPEAL BROUGHT DIRECTLY FROM THE THREE-JUDGE COURT ONLY IF THE THREE
JUDGE COURT WAS PROPERLY CONVENED.  PENNSYLVANIA PUBLIC UTILITY COMM'N
V. PENNSYLVANIA R. CO., 382 U.S. 281 (1965); ZEMEL V. RUSK, 381 U.S. 1,
5 (1965); SEE 28 U.S.C. 1253.  APPELLANTS INITIALLY CLAIMED THAT THE
STATUTES AND REGULATIONS IN QUESTION VIOLATED THE FIFTEENTH AMENDMENT. 
HOWEVER, BY STIPULATION THESE CLAIMS WERE REMOVED FROM THE CASES PRIOR
TO A HEARING IN THE DISTRICT COURT AND THE CASES WERE SUBMITTED SOLELY
ON THE QUESTION OF THE APPLICABILITY OF SEC. 5.  /25/  WE HELD IN SWIFT
& CO. V. WICKHAM, 382 U.S. 111, 127 (1965), THAT A THREE-JUDGE COURT IS
NOT REQUIRED UNDER 28 U.S.C. 2281 IF THE STATE STATUTE IS ATTACKED ON
THE GROUNDS THAT IT IS IN CONFLICT WITH A FEDERAL STATUTE AND
CONSEQUENTLY VIOLATES THE SUPREMACY CLAUSE.  THESE SUITS INVOLVE SUCH
AN ATTACK AND, IN THE ABSENCE OF A STATUTE AUTHORIZING A THREE-JUDGE
COURT, WOULD NOT BE PROPER BEFORE A DISTRICT COURT OF THREE JUDGES. 

APPELLANTS MAINTAIN THAT SEC. 5 AUTHORIZES A THREE-JUDGE COURT IN
SUITS BROUGHT BY PRIVATE LITIGANTS TO ENFORCE THE APPROVAL REQUIREMENTS
OF THE SECTION.  THE FINAL SENTENCE OF SEC. 5 PROVIDES THAT "(ANY
ACTION UNDER THIS SECTION SHALL BE HEARD AND DETERMINED BY A COURT OF
THREE JUDGES . . . AND ANY APPEAL SHALL LIE TO THE SUPREME COURT."  42
U.S.C. 1973C (1964 ED., SUPP. I).  APPELLEES ARGUE THAT THIS SENTENCE
REFERS ONLY TO THE ACTION SPECIFICALLY MENTIONED IN THE FIRST SENTENCE
OF SEC. 5 (I.E., DECLARATORY JUDGMENT SUITS BROUGHT BY THE STATE) AND
DOES NOT APPLY TO SUITS BROUGHT BY THE PRIVATE LITIGANT. 

AS WE HAVE INTERPRETED SEC. 5, SUITS INVOLVING THE SECTION MAY BE
BROUGHT IN AT LEAST THREE WAYS.  FIRST, OF COURSE, THE STATE MAY
INSTITUTE A DECLARATORY JUDGMENT ACTION.  SECOND, AN INDIVIDUAL MAY
BRING A SUIT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF, CLAIMING
THAT A STATE REQUIREMENT IS COVERED BY SEC. 5, BUT HAS NOT BEEN
SUBJECTED TO THE REQUIRED FEDERAL SCRUTINY.  THIRD, THE ATTORNEY
GENERAL MAY BRING AN INJUNCTIVE ACTION TO PROHIBIT THE ENFORCEMENT OF A
NEW REGULATION BECAUSE OF THE STATE'S FAILURE TO OBTAIN APPROVAL UNDER
SEC. 5.  ALL THESE SUITS MAY BE VIEWED AS BEING BROUGHT "UNDER" SEC.
5.  THE ISSUE IS WHETHER THE LANGUAGE "UNDER THIS SECTION" SHOULD BE
INTERPRETED AS AUTHORIZING A THREE-JUDGE ACTION IN THESE SUITS. 

WE HAVE LONG HELD THAT CONGRESSIONAL ENACTMENTS PROVIDING FOR THE
CONVENING OF THREE-JUDGE COURTS MUST BE STRICTLY CONSTRUED.  PHILLIPS
V. UNITED STATES, 312 U.S. 246 (1941).  CONVENING A THREE-JUDGE COURT
PLACES A BURDEN ON OUR FEDERAL COURT SYSTEM, AND MAY OFTEN RESULT IN A
DELAY IN A MATTER NEEDING SWIFT INITIAL ADJUDICATION.  SEE SWIFT & CO.
V. WICKHAM, SUPRA, AT 128.  ALSO, A DIRECT APPEAL MAY BE TAKEN FROM A
THREE-JUDGE COURT TO THIS COURT, THUS DEPRIVING US OF THE WISE AND
OFTEN CRUCIAL ADJUDICATIONS OF THE COURTS OF APPEALS.  THUS WE HAVE
BEEN RELUCTANT TO EXTEND THE RANGE OF CASES NECESSITATING THE CONVENING
OF THREE-JUDGE COURTS.  IBID. 

HOWEVER, WE HAVE NOT BEEN UNAWARE OF THE LEGITIMATE REASONS THAT
PROMPTED CONGRESS TO ENACT THREE-JUDGE-COURT LEGISLATION.  SEE SWIFT &
CO. V. WICKHAM, SUPRA, AT 116-119.  NOTWITHSTANDING THE PROBLEMS FOR
JUDICIAL ADMINISTRATION, CONGRESS HAS DETERMINED THAT THREE-JUDGE
COURTS ARE DESIRABLE IN A NUMBER OF CIRCUMSTANCES INVOLVING
CONFRONTATIONS BETWEEN STATE AND FEDERAL POWER OR IN CIRCUMSTANCES
INVOLVING A POTENTIAL FOR SUBSTANTIAL INTERFERENCE WITH GOVERNMENT
ADMINISTRATION.  /26/  THE VOTING RIGHTS ACT OF 1965 IS AN EXAMPLE. 
FEDERAL SUPERVISION OVER THE ENFORCEMENT OF STATE LEGISLATION ALWAYS
POSES DIFFICULT PROBLEMS FOR OUR FEDERAL SYSTEM.  THE PROBLEMS ARE
ESPECIALLY DIFFICULT WHEN THE ENFORCEMENT OF STATE ENACTMENTS MAY BE
ENJOINED AND STATE ELECTION PROCEDURES SUSPENDED BECAUSE THE STATE HAS
FAILED TO COMPLY WITH A FEDERAL APPROVAL PROCEDURE. 

IN DRAFTING SEC. 5, CONGRESS APPARENTLY CONCLUDED THAT IF THE
GOVERNING AUTHORITIES OF A STATE DIFFER WITH THE ATTORNEY GENERAL OF
THE UNITED STATES CONCERNING THE PURPOSE OR EFFECT OF A CHANGE IN
VOTING PROCEDURES, IT IS INAPPROPRIATE TO HAVE THAT DIFFERENCE RESOLVED
BY A SINGLE DISTRICT JUDGE.  THE CLASH BETWEEN FEDERAL AND STATE POWER
AND THE POTENTIAL DISRUPTION TO STATE GOVERNMENT ARE APPARENT.  THERE
IS NO LESS A CLASH AND POTENTIAL FOR DISRUPTION WHEN THE DISAGREEMENT
CONCERNS WHETHER A STATE ENACTMENT IS SUBJECT TO SEC. 5.  THE RESULT OF
BOTH SUITS CAN BE AN INJUNCTION PROHIBITING THE STATE FROM ENFORCING
ITS ELECTION LAWS.  ALTHOUGH A SUIT BROUGHT BY THE INDIVIDUAL CITIZEN
MAY NOT INVOLVE THE SAME FEDERAL-STATE CONFRONTATION, THE POTENTIAL FOR
DISRUPTION OF STATE ELECTION PROCEDURES REMAINS. 

OTHER PROVISIONS OF THE ACT INDICATE THAT CONGRESS WAS WELL AWARE OF
THE EXTRAORDINARY EFFECT THE ACT MIGHT HAVE ON FEDERAL-STATE
RELATIONSHIPS AND THE ORDERLY OPERATION OF STATE GOVERNMENT.  FOR
EXAMPLE, SEC. 10, WHICH PROHIBITS THE COLLECTION OF POLL TAXES AS A
PREREQUISITE TO VOTING, CONTAINS A PROVISION AUTHORIZING A THREE-JUDGE
COURT WHEN THE ATTORNEY GENERAL BRINGS AN ACTION "AGAINST THE
ENFORCEMENT OF ANY REQUIREMENT OF THE PAYMENT OF A POLL TAX AS A
PRECONDITION TO VOTING.  . . . "  79 STAT. 442, 42 U.S.C. 1973HA)-(C)
(1964 ED., SUPP. I).  SEE ALSO 42 U.S.C. 1973BA) (1964 ED., SUPP. I). 

WE CONCLUDE THAT IN LIGHT OF THE EXTRAORDINARY NATURE OF THE ACT IN
GENERAL, AND THE UNIQUE APPROVAL REQUIREMENTS OF SEC. 5, CONGRESS
INTENDED THAT DISPUTES INVOLVING THE COVERAGE OF SEC. 5 BE DETERMINED
BY A DISTRICT COURT OF THREE JUDGES. 

        IV. 

FINDING THAT THESE CASES ARE PROPERLY BEFORE US, WE TURN TO A
CONSIDERATION OF WHETHER THESE STATE ENACTMENTS ARE SUBJECT TO THE
APPROVAL REQUIREMENTS OF SEC. 5.  THESE REQUIREMENTS APPLY TO "ANY
VOTING QUALIFICATION OR PREREQUISITE TO VOTING, OR STANDARD, PRACTICE,
OR PROCEDURE WITH RESPECT TO VOTING.  . . . "  42 U.S.C. 1973C (1964
ED., SUPP. I).  THE ACT FURTHER PROVIDES THAT THE TERM "VOTING" "SHALL
INCLUDE ALL ACTION NECESSARY TO MAKE A VOTE EFFECTIVE IN ANY PRIMARY,
SPECIAL, OR GENERAL ELECTION, INCLUDING, BUT NOT LIMITED TO,
REGISTRATION, LISTING . . . OR OTHER ACTION REQUIRED BY LAW
PREREQUISITE TO VOTING, CASTING A BALLOT, AND HAVING SUCH BALLOT
COUNTED PROPERLY AND INCLUDED IN THE APPROPRIATE TOTALS OF VOTES CAST
WITH RESPECT TO CANDIDATES FOR PUBLIC OR PARTY OFFICE AND PROPOSITIONS
FOR WHICH VOTES ARE RECEIVED IN AN ELECTION."  SEC. 14(C)(1), 79 STAT.
445, 42 U.S.C. 1973LC)(1) (1964 ED., SUPP. I).  SEE APPENDIX, INFRA. 
APPELLEES IN THE MISSISSIPPI CASES MAINTAIN THAT SEC. 5 COVERS ONLY
THOSE STATE ENACTMENTS WHICH PRESCRIBE WHO MAY REGISTER TO VOTE.  WHILE
ACCEPTING THAT THE ACT IS BROAD ENOUGH TO INSURE THAT THE VOTERS OF ALL
CITIZENS SHOULD BE CAST, APPELLEES URGE THAT SEC. 5 DOES NOT COVER
STATE RULES RELATING TO THE QUALIFICATION OF CANDIDATES OR TO STATE
DECISIONS AS TO WHICH OFFICES SHALL BE ELECTIVE. 

APPELLEES RELY ON THE LEGISLATIVE HISTORY OF THE ACT TO SUPPORT
THEIR VIEW, CITING THE TESTIMONY OF FORMER ASSISTANT ATTORNEY GENERAL
BURKE MARSHALL BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE
JUDICIARY: 

     "MR. CORMAN.  WE HAVE NOT TALKED AT ALL ABOUT WHETHER WE HAVE

  TO BE CONCERNED WITH NOT ONLY WHO CAN VOTE, BUT WHO CAN RUN FOR

  PUBLIC OFFICE AND THAT HAS BEEN AN ISSUE IN SOME AREAS IN THE

  SOUTH IN 1964.  HAVE YOU GIVEN ANY CONSIDERATION TO WHETHER OR

  NOT THIS BILL OUGHT TO ADDRESS ITSELF TO THE QUALIFICATIONS FOR

RUNNING FOR PUBLIC OFFICE AS WELL AS THE PROBLEM OF

  REGISTRATION? 

      "MR. MARSHALL.  THE PROBLEM THAT THE BILL WAS AIMED AT WAS
THE

  PROBLEM OF REGISTRATION, CONGRESSMAN.  IF THERE IS A PROBLEM OF

  ANOTHER SORT, I WOULD LIKE TO SEE IT CORRECTED, BUT THAT IS NOT

  WHAT WE WERE TRYING TO DEAL WITH IN THE BILL."  /27/ 

APPELLEES IN NO. 25 ALSO ARGUE THAT SEC. 5 WAS NOT INTENDED TO APPLY
TO A CHANGE FROM DISTRICT TO AT-LARGE VOTING, BECAUSE APPLICATION OF
SEC. 5 WOULD CAUSE A CONFLICT IN THE ADMINISTRATION OF REAPPORTIONMENT
LEGISLATION.  THEY CONTEND THAT UNDER SUCH A BROAD READING OF SEC. 5,
ENFORCEMENT OF A REAPPORTIONMENT PLAN COULD BE ENJOINED FOR FAILURE TO
MEET THE SEC. 5 APPROVAL REQUIREMENTS, EVEN THOUGH THE PLAN HAD BEEN
APPROVED BY A FEDERAL COURT.  /28/  APPELLEES URGE THAT CONGRESS COULD
NOT HAVE INTENDED TO FORCE THE STATES TO SUBMIT A REAPPORTIONMENT PLAN
TO TWO DIFFERENT COURTS.  /29/ 

WE MUST REJECT A NARROW CONSTRUCTION THAT APPELLEES WOULD GIVE TO
SEC. 5.  THE VOTING RIGHTS ACT WAS AIMED AT THE SUBTLE, AS WELL AS THE
OBVIOUS, STATE REGULATIONS WHICH HAVE THE EFFECT OF DENYING CITIZENS
THEIR RIGHT TO VOTE BECAUSE OF THEIR RACE.  /30/  MOREOVER, COMPATIBLE
WITH THE DECISIONS OF THIS COURT, THE ACT GIVES A BROAD INTERPRETATION
TO THE RIGHT TO VOTE, RECOGNIZING THAT VOTING INCLUDES "ALL ACTION
NECESSARY TO MAKE A VOTE EFFECTIVE."  79 STAT. 445, 42 U.S.C.
1973LC)(1) (1964 ED., SUPP. I).  SEE REYNOLDS V. SIMS, 377 U.S. 533,
555 (1964).  WE ARE CONVINCED THAT IN PASSING THE VOTING RIGHTS ACT,
CONGRESS INTENDED THAT STATE ENACTMENTS SUCH AS THOSE INVOLVED IN THE
INSTANT CASES BE SUBJECT TO THE SEC. 5 APPROVAL REQUIREMENTS. 

THE LEGISLATIVE HISTORY ON THE WHOLE SUPPORTS THE VIEW THAT CONGRESS
INTENDED TO REACH ANY STATE ENACTMENT WHICH ALTERED THE ELECTION LAW OF
A COVERED STATE IN EVEN A MINOR WAY.  FOR EXAMPLE, SEC. 2 OF THE ACT,
AS ORIGINALLY DRAFTED, INCLUDED A PROHIBITION AGAINST ANY
"QUALIFICATION OR PROCEDURE."  DURING THE SENATE HEARINGS ON THE BILL,
SENATOR FONG EXPRESSED CONCERN THAT THE WORD "PROCEDURE" WAS NOT BROAD
ENOUGH TO COVER VARIOUS PRACTICES THAT MIGHT EFFECTIVELY BE EMPLOYED TO
DENY CITIZENS THEIR RIGHT TO VOTE.  IN RESPONSE, THE ATTORNEY GENERAL
SAID HE HAD NO OBJECTION TO EXPANDING THE LANGUAGE OF THE SECTION, AS
THE WORD "PROCEDURE" "WAS INTENDED TO BE ALL-INCLUSIVE OF ANY KIND OF
PRACTICE."  /31/  INDICATIVE OF AN INTENTION TO GIVE THE ACT THE
BROADEST POSSIBLE SCOPE, CONGRESS EXPANDED THE LANGUAGE IN THE FINAL
VERSION OF SEC. 2 TO INCLUDE ANY "VOTING QUALIFICATIONS OR PREREQUISITE
TO VOTING, OR STANDARD, PRACTICE, OR PROCEDURE."  42 U.S.C. 1973 (1964
ED., SUPP. I). 

SIMILARLY, IN THE HOUSE HEARINGS, IT WAS EMPHASIZED THAT SEC. 5 WAS
TO HAVE A BROAD SCOPE: 

     "MR. KATZENBACH.  THE JUSTIFICATION FOR (THE APPROVAL

  REQUIREMENTS) IS SIMPLY THIS:  OUR EXPERIENCE IN THE AREAS THAT

  WOULD BE COVERED BY THIS BILL HAS BEEN SUCH AS TO INDICATE

  FREQUENTLY ON THE PART OF STATE LEGISLATURES A DESIRE IN A SENSE

  TO OUTGUESS THE COURTS OF THE UNITED STATES OR EVEN TO OUTGUESS

  THE CONGRESS OF THE UNITED STATES.  . . . (AS THE CHAIRMAN MAY

  RECALL . . . AT THE TIME OF THE INITIAL SCHOOL DESEGRATION, . . .

  THE LEGISLATURE PASSED I DON'T KNOW HWO MANY LAWS IN THE SHORTEST

PERIOD OF TIME.  EVERY TIME THE JUDGE ISSUED A DECREE, THE

 LEGISLATURE . . . PASSED A LAW TO FRUSTRATE THAT DECREE. 

     "IF I RECOLLECT CORRECTLY, THE SCHOOL BOARD WAS ORDERED TO DO

  SOMETHING AND THE LEGISLATURE IMMEDIATELY TOOK AWAY ALL AUTHORITY

  OF THE SCHOOL BOARDS.  THEY WITHDREW ALL FUNDS FROM THEM TO

  ACCOMPLISH THE PURPOSES OF THE ACT."  HOUSE HEARINGS 60. 

ALSO, THE REMARKS OF BOTH OPPONENTS AND PROPONENTS DURING THE DEBATE
OVER PASSAGE OF THE ACT DEMONSTRATE THAT CONGRESS WAS WELL AWARE OF
ANOTHER ADMONITION OF THE ATTORNEY GENERAL.  /32/  HE HAD STATED IN THE
HOUSE HEARINGS THAT TWO OR THREE TYPES OF CHANGES IN STATE ELECTION LAW
(SUCH AS CHANGING FROM PAPER BALLOTS TO VOTING MACHINES) COULD BE
SPECIFICALLY EXCLUDED FROM SEC. 5 WITHOUT UNDERMINING THE PURPOSE OF
THE SECTION.  HE EMPHASIZED, HOWEVER, THAT THERE WERE "PRECIOUS FEW"
CHANGES THAT COULD BE EXCLUDED "BECAUSE THERE ARE AN AWFUL LOT OF
THINGS THAT COULD BE STARTED FOR PURPOSES OF EVADING THE 15TH AMENDMENT
IF THERE IS THE DESIRE TO DO SO."  HOUSE HEARINGS 95.  IT IS
SIGNIFICANT THAT CONGRESS CHOSE NOT TO INCLUDE EVEN THESE MINOR
EXCEPTIONS IN SEC. 5, THUS INDICATING AN INTENTION THAT ALL CHANGES, NO
MATTER HOW SMALL, BE SUBJECTED TO SEC. 5 SCRUTINY. 

IN LIGHT OF THE MASS OF LEGISLATIVE HISTORY TO THE CONTRARY,
ESPECIALLY THE ATTORNEY GENERAL'S CLEAR INDICATION THAT THE SECTION WAS
TO HAVE A BROAD SCOPE AND CONGRESS' REFUSAL TO ENGRAFT EVEN MINOR
EXCEPTIONS, THE SINGLE REMARK OF ASSISTANT ATTORNEY GENERAL BURKE
MARSHALL CANNOT BE GIVEN DETERMINATIVE WEIGHT.  INDEED, IN ANY CASE
WHERE THE LEGISLATIVE HEARINGS AND DEBATE ARE SO VOLUMINOUS, NO SINGLE
STATEMENT OR EXCERPT OF TESTIMONY CAN BE CONCLUSIVE.  /33/  ALSO, THE
QUESTION OF WHETHER SEC. 5 MIGHT CAUSE PROBLEMS IN THE IMPLEMENTATION
OF REAPPORTIONMENT LEGISLATION IS NOT PROPERLY BEFORE US AT THIS TIME. 
THERE IS NO DIRECT CONFLICT BETWEEN OUR INTERPRETATION OF THIS STATUTE
AND THE PRINCIPLES INVOLVED IN THE REAPPORTIONMENT CASES.  THE ARGUMENT
THAT SOME ADMINISTRATION PROBLEM MIGHT ARISE IN THE FUTURE DOES NOT
ESTABLISH THAT CONGRESS INTENDED THAT SEC. 5 HAVE A NARROW SCOPE; WE
LEAVE TO ANOTHER CASE A CONSIDERATION OF ANY POSSIBLE CONFLICT. 

THE WEIGHT OF THE LEGISLATIVE HISTORY AND AN ANALYSIS OF THE BASIC
PURPOSES OF THE ACT INDICATE THAT THE ENACTMENT IN EACH OF THESE CASES
CONSTITUTES A "VOTING QUALIFICATION OR PREREQUISITE TO VOTING, OR
STANDARD, PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING" WITHIN THE
MEANING OF SEC. 5. 

NO. 25 INVOLVES A CHANGE FROM DISTRICT TO AT-LARGE VOTING FOR COUNTY
SUPERVISORS.  THE RIGHT TO VOTE CAN BE AFFECTED BY A DILUTION OF VOTING
POWERS AS WELL AS BY AN ABSOLUTE PROHIBITION ON CASTING A BALLOT.  SEE
REYNOLDS V. SIMS, 377 U.S. 533, 555 (1964).  VOTERS WHO ARE MEMBERS OF
A RACIAL MINORITY MIGHT WELL BE IN THE MAJORITY IN ONE DISTRICT, BUT IN
A DECIDED MINORITY IN THE COUNTY AS A WHOLE.  THIS TYPE OF CHANGE COULD
THEREFORE NULLIFY THEIR ABILITY TO ELECT THE CANDIDATE OF THEIR CHOICE
JUST AS WOULD PROHIBITING SOME OF THEM FROM VOTING. 

IN NO. 26 AN IMPORTANT COUNTY OFFICER IN CERTAIN COUNTIES WAS MADE
APPOINTIVE INSTEAD OF ELECTIVE.  THE POWER OF A CITIZEN'S VOTE IS
AFFECTED BY THIS AMENDMENT; AFTER THE CHANGE, HE IS PROHIBITED FROM
ELECTING AN OFFICER FORMERLY SUBJECT TO THE APPROVAL OF THE VOTERS. 
SUCH A CHANGE COULD BE MADE EITHER WITH OR WITHOUT A DISCRIMINATORY
PURPOSE OR EFFECT; HOWEVER, THE PURPOSE OF SEC. 5 WAS TO SUBMIT SUCH
CHANGES TO SCRUTINY. 

THE CHANGES IN NO. 36 APPEAR AIMED AT INCREASING THE DIFFICULTY FOR
AN INDEPENDENT CANDIDATE TO GAIN A POSITION ON THE GENERAL ELECTION
BALLOT.  THESE CHANGES MIGHT ALSO UNDERMINE THE EFFECTIVENESS OF VOTERS
WHO WISH TO ELECT INDEPENDENT CANDIDATES.  ONE CHANGE INVOLVED IN NO.
36 DESERVES SPEICAL NOTE.  THE AMENDMENT PROVIDES THAT NO PERSON WHO
HAS VOTED IN A PRIMARY ELECTION MAY THEREAFTER BE PLACED ON THE BALLOT
AS AN INDEPENDENT CANDIDATE IN THE GENERAL ELECTION.  THIS IS A
"PROCEDURE WITH RESPECT TO VOTING" WITH SUBSTANTIAL IMPACT.  ONE MUST
FORGO HIS RIGHT TO VOTE IN HIS PARTY PRIMARY IF HE THINKS HE MIGHT
LATER WISH TO BECOME AN INDEPENDENT CANDIDATE. 

THE BULLETIN IN NO. 3 OUTLINES NEW PROCEDURES FOR CASTING WRITE-IN
VOTES.  AS IN ALL THESE CASES, WE DO NOT CONSIDER WHETHER THIS CHANGE
HAS A DISCRIMINATORY PURPOSE OR EFFECT.  IT IS CLEAR, HOWEVER, THAT THE
NEW PROCEDURE WITH RESPECT TO VOTING IS DIFFERENT FROM THE PROCEDURE IN
EFFECT WHEN THE STATE BECAME SUBJECT TO THE ACT; THEREFORE, THE
ENACTMENT MUST MEET THE APPROVAL REQUIREMENTS OF SEC. 5 IN ORDER TO BE
ENFORCEABLE. 

IN THESE CASES, AS IN SO MANY OTHERS THAT COME BEFORE US, WE ARE
CALLED UPON TO DETERMINE THE APPLICABILITY OF A STATUTE WHERE THE
LANGUAGE OF THE STATUTE DOES NOT MAKE CRYSTAL CLEAR ITS INTENDED
SCOPE.  IN ALL SUCH CASES WE ARE COMPELLED TO RESORT TO THE LEGISLATIVE
HISTORY TO DETERMINE WHETHER, IN LIGHT OF THE ARTICULATED PURPOSES OF
THE LEGISLATION, CONGRESS INTENDED THAT THE STATUTE APPLY TO THE
PARTICULAR CASES IN QUESTION.  WE ARE OF THE OPINION THAT, WITH THE
EXCEPTION OF THE STATEMENT OF ASSSISTANT ATTORNEY GENERAL BURKE
MARSHALL, THE BALANCE OF LEGISLATIVE HISTORY (INCLUDING THE STATEMENTS
OF THE ATTORNEY GENERAL AND CONGRESSIONAL ACTION EXPANDING THE
LANGUAGE) INDICATES THAT SEC. 5 APPLIES TO THESE CASES.  IN SAYING
THIS, WE OF COURSE EXPRESS NO VIEW ON THE MERIT OF THESE ENACTMENTS; WE
ALSO EMPHASIZE THAT OUR DECISION INDICATES NO OPINION CONCERNING THEIR
CONSTITUTIONALITY. 

  V. 

APPELLEES IN THE MISSISSIPPI CASES ARGUE THAT EVEN IF THESE STATE
ENACTMENTS ARE COVERED BY SEC. 5, THEY MAY NOW BE ENFORCED, SINCE THE
STATE SUBMITTED THEM TO THE ATTORNEY GENERAL AND HE HAS FAILED TO
OBJECT.  WHILE APPELLEES ADMIT THAT THEY HAVE MADE NO "FORMAL"
SUBMISSION TO THE ATTORNEY GENERAL, THEY ARGUE THAT NO FORMALITY IS
REQUIRED.  THEY SAY THAT ONCE THE ATTORNEY GENERAL HAS BECOME AWARE OF
THE STATE ENACTMENT, THE ENACTMENT HAS BEEN "SUBMITTED" FOR PURPOSES OF
SEC. 5.  APPELLEES CONTEND THAT THE ATTORNEY GENERAL BECAME AWARE OF
THE ENACTMENTS WHEN SERVED WITH A COPY OF APPELLEES' BRIEFS IN THESE
CASES. 

WE REJECT THIS ARGUMENT.  WHILE THE ATTORNEY GENERAL HAS NOT
REQUIRED ANY FORMAL PROCEDURE, WE DO NOT THINK THE ACT CONTEMPLATES
THAT A "SUBMISSION" OCCURS WHEN THE ATTORNEY GENERAL MERELY BECOMES
AWARE OF THE LEGISLATION, NO MATTER IN WHAT MANNER.  NOR DO WE THINK
THE SERVICE OF THE BRIEFS ON THE ATTORNEY GENERAL CONSTITUTED A
"SUBMISSION."  A FAIR INTERPRETATION OF THE ACT REQUIRES THAT THE STATE
IN SOME UNAMBIGUOUS AND RECORDABLE MANNER SUBMIT ANY LEGISLATION OR
REGULATION IN QUESTION DIRECTLY TO THE ATTORNEY GENERAL WITH A REQUEST
FOR HIS CONSIDERATION PURSUANT TO THE ACT. 

        VI. 

APPELLANTS IN THE MISSISSIPPI CASES HAVE ASKED THIS COURT TO SET
ASIDE THE ELECTIONS CONDUCTED PURSUANT TO THESE ENACTMENTS AND ORDER
THAT NEW ELECTIONS BE HELD UNDER THE PRE-AMENDMENT LAWS.  THE SOLICITOR
GENERAL HAS ALSO URGED US TO ORDER NEW ELECTIONS IF THE STATE DOES NOT
PROMPTLY INSTITUTE SEC. 5 APPROVAL PROCEEDINGS.  WE DECLINE TO TAKE
CORRECTIVE ACTION OF SUCH CONSEQUENCE, HOWEVER.  THESE SEC. 5 COVERAGE
QUESTIONS INVOLVE COMPLEX ISSUES OF FIRST IMPRESSION-- ISSUES SUBJECT
TO RATIONAL DISAGREEMENT.  THE STATE ENACTMENTS WERE NOT SO CLEARLY
SUBJECT TO SEC. 5 THAT THE APPELLEES'  FAILURE TO SUBMIT THEM FOR
APPROVAL CONSTITUTED DELIBERATE DEFIANCE OF THE ACT.  MOREOVER, THE
DISCRIMINATORY PURPOSE OR EFFECT OF THESE STATUTES, IF ANY, HAS NOT
BEEN DETERMINED BY ANY COURT.  WE GIVE ONLY PROSPECTIVE EFFECT TO OUR
DECISION, BEARING IN MIND THAT OUR JUDGMENT TODAY DOES NOT END THE
MATTER SO FAR AS THESE STATES ARE CONCERNED.  THEY REMAIN SUBJECT TO
THE CONTINUING STRICTURES OF SEC. 5 UNTIL THEY OBTAIN FROM THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA A DECLARATORY
JUDGMENT THAT FOR AT LEAST FIVE YEARS THEY HAVE NOT USED THE "TESTS OR
DEVICES" PROHIBITED BY SEC. 4.  42 U.S.C. 1973BA) (1964 ED., SUPP. I). 

IN NO. 3 THE JUDGMENT OF THE DISTRICT COURT IS VACATED; IN NOS. 25,
26, AND 36 THE JUDGMENTS OF THE DISTRICT COURT ARE REVERSED.  ALL FOUR
CASES ARE REMANDED TO THE DISTRICT COURTS WITH INSTRUCTIONS TO ISSUE
INJUNCTIONS RESTRAINING THE FURTHER ENFORCEMENT OF THE ENACTMENTS UNTIL
SUCH TIME AS THE STATES ADEQUATELY DEMONSTRATE COMPLIANCE WITH SEC. 5. 

              IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 25, FAIRLEY ET AL. V. PATTERSON, ATTORNEY
GENERAL OF MISSISSIPPI, ET AL., NO. 26, BUNTON ET AL. V. PATTERSON,
ATTORNEY GENERAL OF MISSISSIPPI, ET AL., AND NO. 36, WHITLEY ET AL. V.
WILLIAMS, GOVERNOR OF MISSISSIPPI, ET AL., ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, ARGUED
ON OCTOBER 16, 1968. 

/1A/  79 STAT. 437, 42 U.S.C. 1973 ET SEQ. (1964 ED., SUPP. I). 

/2/  IN ALL FOUR CASES A THREE-JUDGE COURT WAS CONVENED.  NOS. 25,
26, AND 36 ARE DIRECT APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF MISSISSIPPI.  NO. 3 IS A DIRECT APPEAL FROM
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. 

/3/  BOTH STATES INVOLVED IN THESE CASES HAVE BEEN DETERMINED TO BE
COVERED BY THE ACT.  30 FED.REG.  9897 (AUGUST 6, 1965). 

/4/  SEE H.R. REP. NO. 439, 89TH CONG., 1ST SESS., 10-11; S. REP.
NO. 162, PT. 3, 89TH CONG., 1ST SESS., 8, 12. 

/5/  AT THE ORAL ARGUMENT IN THE MISSISSIPPI CASES, ASSISTANT
ATTORNEY GENERAL POLLAK STATED THAT THE DEPARTMENT OF JUSTICE HAD
RECEIVED 251 SUBMISSIONS FROM THE STATES UNDER SEC. 5.  HE FURTHER
STATED THAT THE DEPARTMENT WITHHELD CONSENT IN ONLY ONE CASE, AND THAT
WAS WHERE THE CHANGE WAS CONTRARY TO A PRIOR COURT DECISION ON THE SAME
ISSUE.  HE SAID THAT IN TWO OTHER INSTANCES THE STATE INADVERTENTLY
INCORPORATED BY REFERENCE ANOTHER SECTION OF STATE LAW THAT CONTAINED A
PROHIBITED TEST OR DEVICE.  TRANSCRIPT OF ARGUMENT 63.     /6/  SEE
APPENDIX, INFRA. 

/7/  IN ALL THREE CASES FROM MISSISSIPPI THE ORIGINAL COMPLAINT
CONTAINED OTHER GROUNDS FOR RELIEF; HOWEVER, BEFORE HEARING IN THE
DISTRICT COURT, THE PARTIES STIPULATED THAT THE ONLY ISSUE FOR DECISION
WAS WHETHER SEC. 5 APPLIED. 

/8/  SEE APPENDIX, INFRA. 

/9/  SEE APPENDIX, INFRA. 

/10/  THE SUIT WAS FIRST BROUGHT IN 1966.  PENDING A DECISION ON THE
MERITS, A THREE-JUDGE DISTRICT COURT ORDERED APPELLANTS PLACED ON THE
1966 GENERAL ELECTION BALLOT.  WHITLEY V. JOHNSON, 260 F.SUPP.  630
(D.C.S.D. MISS.  1966).  LATER, OTHER MEMBERS OF THE CLASS WHICH
APPELLANTS REPRESENT WERE DENIED PLACES ON THE BALLOT FOR THE 1967
GENERAL ELECTION FOR FAILING TO COMPLY WITH THE AMENDMENT'S
REQUIREMENTS. 

/11/ NO. 25, 282 F.SUPP.  164, 165 (D.C.S.D. MISS.  1967); NO. 26,
281 F.SUPP.  918 (D.C.S.D. MISS.  1967). 

/12/  APPELLANTS ASSERT THAT THIS COURT HAS JURISDICTION ON DIRECT
APPEAL UNDER 28 U.S.C. 1253 AND 42 U.S.C. 1973C (1964 ED., SUPP. I). 

/13/  EMPHASIS ADDED.  SEE APPENDIX, INFRA. 

/14/  79 STAT. 438, 42 U.S.C. 1973BA) (1964 ED., SUPP. I).  THE ACT
DEFINES "TEST OR DEVICE" AS "ANY REQUIREMENT THAT A PERSON AS A
PREREQUISITE FOR VOTING OR REGISTRATION FOR VOTING (1) DEMONSTRATE THE
ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY MATTER.  . . . "
79 STAT. 438, 42 U.S.C. 1973BC) (1964 ED., SUPP. I). 

/15/  SEE APPENDIX, INFRA. 

/16/  ALLEN V. STATE BOARD OF ELECTIONS, 268 F.SUPP.  218 (D.C.E.D.
VA. 1967).  THE DISTRICT COURT RULED THAT THE REQUIREMENT THAT WRITE-IN
VOTES BE IN THE VOTER'S OWN HANDWRITING WAS NOT UNCONSTITUTIONAL; THE
COURT FURTHER RULED THAT SEC. 24-252 WAS NOT SUSPENDED BY SEC. 4 OF THE
VOTING RIGHTS ACT AS IT WAS NOT A "TEST OR DEVICE" AS DEFINED BY THE
ACT. 

/17/  SEE BYNTON V. VIRGINIA, 364 U.S. 454, 457 (1960); CF. BELL V.
MARYLAND, 378 U.S. 226, 237-242 (1964); SILVER V. UNITED STATES, 370
U.S. 717, 718 (1962). 

/18/  SECTION 12(F) OF THE ACT, 79 STAT. 444, 42 U.S.C. 1973JF)
(1964 ED., SUPP. I), PROVIDES:  "THE DISTRICT COURTS OF THE UNITED
STATES SHALL HAVE JURISDICTION OF PROCEEDINGS INSTITUTED PURSUANT TO
THIS SECTION AND SHALL EXERCISE THE SAME WITHOUT REGARD TO WHETHER A
PERSON ASSERTING RIGHTS UNDER THE PROVISIONS OF THIS ACT SHALL HAVE
EXHAUSTED ANY ADMINISTRATIVE OR OTHER REMEDIES THAT MAY BE PROVIDED BY
LAW." 

APPELLANTS HAVE ARGUED THIS SECTION NECESSARILY IMPLIES THAT PRIVATE
PARTIES MAY BRING SUIT UNDER THE ACT, RELYING ON THE LANGUAGE "A
PERSON."  WHILE THIS ARGUMENT HAS SOME FORCE, THE QUESTION IS NOT FREE
FROM DOUBT, SINCE THE SPECIFIC REFERENCES THROUGHOUT THE OTHER
SUBSECTIONS OF SEC. 12 ARE TO THE ATTORNEY GENERAL.  E.G., SECS. 12(D)
AND 12(E).  HOWEVER, WE FIND MERIT IN THE ARGUMENT THAT THE SPECIFIC
REFERENCES TO THE ATTORNEY GENERAL WERE INCLUDED TO GIVE THE ATTORNEY
GENERAL POWER TO BRING SUIT TO ENFORCE WHAT MIGHT OTHERWISE BE VIEWED
AS "PRIVATE" RIGHTS.  SEE UNITED STATES V. RAINES, 362 U.S. 17, 27
(1960). 

IN ANY EVENT, THERE IS CERTAINLY NO SPECIFIC EXCLUSION OF PRIVATE
ACTIONS.  SECTION 12(F) IS AT LEAST COMPATIBLE WITH 28 U.S.C. 1343 AND
MIGHT BE VIEWED AS AUTHORIZING PRIVATE ACTIONS. 

/19/  IT IS IMPORTANT TO DISTINGUISH THE INSTANT CASES FROM THOSE
BROUGHT BY A STATE SEEKING A DECLARATORY JUDGMENT THAT ITS NEW VOTING
LAWS DO NOT HAVE A DISCRIMINATORY PURPOSE OR EFFECT.  CF. APACHE COUNTY
V. UNITED STATES, 256 F.SUPP.  903 (D.C.D.C. 1966).  IN THE LATTER TYPE
OF CASES THE SUBSTANTIVE QUESTIONS NECESSARY FOR APPROVAL (I.E.,
DISCRIMINATORY PURPOSE OR EFFECT) ARE LITIGATED, WHILE IN THE CASES
HERE DECIDED THE ONLY QUESTION IS WHETHER THE NEW LEGISLATION MUST BE
SUBMITTED FOR APPROVAL. 

/20/  APPELLEES ARGUE THAT SEC. 5 ONLY CONFERRED A NEW "REMEDY" ON
THE ATTORNEY GENERAL OF THE UNITED STATES.  THEY ARGUE THAT IT GAVE
CITIZENS NO NEW "RIGHTS,# RATHER IT MERELY GAVE THE ATTORNEY GENERAL A
MORE EFFECTIVE MEANS OF ENFORCING THE GUARANTEES OF THE FIFTEENTH
AMENDMENT.  IT IS UNNECESSARY TO REACH THE QUESTION OF WHETHER THE ACT
CREATES NEW "RIGHTS" OR MERELY GIVES PLAINTIFFS SEEKING TO ENFORCE
EXISTING RIGHTS NEW "REMEDIES."  HOWEVER THE ACT IS VIEWED, THE INQUIRY
REMAINS WHETHER THE RIGHT OR REMEDY HAS BEEN CONFERRED UPON THE PRIVATE
LITIGANT. 

/21/  THE ENFORCEMENT PROVISIONS PROVIDE THAT THE ATTORNEY GENERAL
"MAY INSTITUTE . . . AN ACTION" OR "MAY . . . FILE . . . AN APPLICATION
FOR AN ORDER."  79 STAT. 443, 42 U.S.C. 1973HD), (E) (1964 ED., SUPP.
I). 

OF COURSE THE PRIVATE LITIGANT COULD ALWAYS BRING SUIT UNDER THE
FIFTEENTH AMENDMENT.  BUT IT WAS THE INADEQUACY OF JUST THESE SUITS FOR
SECURING THE RIGHT TO VOTE THAT PROMPTED CONGRESS TO PASS THE VOTING
RIGHTS ACT.  SOUTH CAROLINA V. KATZENBACH, SUPRA, AT 309. 

/22/  AS OF JANUARY 1968, THE ATTORNEY GENERAL HAD BROUGHT ONLY ONE
ACTION TO FORCE A STATE TO COMPLY WITH SEC. 5.  UNITED STATES
COMMISSION ON CIVIL RIGHTS, POLITICAL PARTICIPATION 164-165 (1968). 

/23/  IT IS SIGNIFICANT THAT THE UNITED STATES HAS URGED THAT
PRIVATE LITIGANTS HAVE STANDING TO SEEK DECLARATORY AND INJUNCTIVE
RELIEF IN THESE SUITS.  MEMORANDUM OF THE UNITED STATES AS AMICUS
CURIAE 8, N. 7. 

/24/  79 STAT. 444, 42 U.S.C. 1973JD), (F) (1964 ED., SUPP. I). 

/25/  THIS JURISDICTIONAL QUESTION DOES NOT APPLY TO NO. 3,
HOWEVER.  IN NO. 3, THE THREE-JUDGE COURT ALSO CONSIDERED AND RULED ON
APPELLANTS' CLAIMS THAT THE VIRGINIA STATUTE AND REGULATIONS WERE IN
CONFLICT WITH THE CONSTITUTION.  268 F.SUPP.  218, 220 (D.C.E.D. VA.
1967).  THUS, NO. 2 IS PROPERLY BEFORE THIS COURT ON DIRECT APPEAL 28
U.S.C. 1253. 

/26/  SEE, E.G., 42 STAT. 168, 7 U.S.C. 217 (SUITS TO RESTRAIN
ENFORCEMENT OF ORDERS OF THE SECRETARY OF AGRICULTURE); 28 U.S.C. 2282
(SUITS TO ENJOIN ENFORCEMENT OF FEDERAL STATUTE); 63 STAT. 479, 49
U.S.C. 305(G) (SUITS TO REVIEW NEGATIVE ORDERS OF THE ICC). 

/27/  HEARINGS ON H.R. 6400 BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS., SER.  2, P. 74
(HEREINAFTER HOUSE HEARINGS). 

/28/  FOR EXAMPLE, APPELLEES ARGUE THAT EVEN THOUGH A REDISTRICTING
PLAN HAD BEEN APPROVED BY A FEDERAL DISTRICT COURT, UNDER A BROAD
INTERPRETATION OF SEC. 5, THE ATTORNEY GENERAL MIGHT BRING SUIT UNDER
SEC. 12(D) (79 STAT. 444, 42 U.S.C. 1973JD) (1964 ED., SUPP. I))
SEEKING AN INJUNCTION BECAUSE THE STATE HAD FAILED TO COMPLY WITH THE
APPROVAL REQUIREMENTS OF SEC. 5. 

/29/  APPELLEES IN NO. 3 ALSO ARGUE THAT SEC. 5 DOES NOT APPLY TO
THE REGULATION IN THEIR CASE, BECAUSE THAT REGULATION WAS ISSUED IN AN
ATTEMPT TO COMPLY WITH THE PROVISIONS OF THE VOTING RIGHTS ACT.  THEY
ARGUE THAT IF SEC. 5 APPLIES TO THE VIRGINIA REGUATION, COVERED STATES
WOULD BE PROHIBITED FROM QUICKLY COMPLYING WITH THE ACT.  WE CANNOT
ACCEPT THIS ARGUMENT, HOWEVER.  A STATE IS NOT EXEMPTED FROM THE
COVERAGE OF SEC. 5 MERELY BECAUSE ITS LEGISLATION IS PASSED IN FROM THE
COVERAGE OF SEC. 5 MERELY BECAUSE ITS LEGISLATION IS PASSED IN AN
ATTEMPT TO COMPLY WITH THE PROVISIONS OF THE ACT.  TO HOLD OTHERWISE
WOULD MEAN THAT LEGISLATION, ALLEGEDLY PASSED TO MEET THE REQUIREMENTS
OF THE ACT, WOULD BE EXEMPTED FROM SEC. 5 COVERAGE-- EVEN THOUGH IT
WOULD HAVE THE EFFECT OF RACIAL DISCRIMINATION.  IT IS PRECISELY THIS
SITUATION CONGRESS SOUGHT TO AVOID IN PASSING SEC. 5. 

/30/  "CONGRESS KNEW THAT SOME OF THE STATES COVERED BY SEC. 4(B) OF
THE ACT HAD RESORTED TO THE EXTRAORDINARY STRATAGEM OF CONTRIVING NEW
RULES OF VARIOUS KINDS FOR THE SOLE PURPOSE OF PERPETUATING VOTING
DISCRIMINATION IN THE FACE OF ADVERSE FEDERAL COURT DECREES.  CONGRESS
HAD REASON TO SUPPOSE THAT THESE STATES MIGHT TRY SIMILAR MANEUVERS IN
THE FUTURE IN ORDER TO EVADE THE REMEDIES FOR VOTING DISCRIMINATION
CONTAINED IN THE ACT ITSELF."  SOUTH CAROLINA V. KATZENBACH, 383 U.S.
301, 335 (1966). 

/31/  HEARING ON S. 1564 BEFORE THE SENATE COMMITTEE ON THE
JUDICIARY, 89TH CONG., 1ST SESS., PT. 1, PP. 191-192 (HEREINAFTER
SENATE HEARINGS): 

"SENATOR FONG.  . . . MR. ATTORNEY GENERAL, TURING TO SECTION 2 OF
THE BILL, WHICH READS AS FOLLOWS: 

"'NO VOTING QUALIFICATION OR PROCEDURE SHALL BE IMPOSED OR APPLIED
TO DENY OR ABRIDGE THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR-- '
THERE IS NO DEFINITION OF THE WORD 'PROCEDURE' HERE.  I AM A LITTLE
AFRAID THAT THERE MAY BE CERTAIN PRACTICES THAT YOU MAY NOT BE ABLE TO
INCLUDE IN THE WORD 'PROCEDURE.' 

"FOR EXAMPLE, IF THERE SHOULD BE A CERTAIN STATUTE IN A STATE THAT
SAYS THE REGISTRATION OFFICE SHALL BE OPEN ONLY 1 DAY IN 3, OR THAT THE
HOURS WILL BE SO RESTRICTED, I DO NOT THINK YOU CAN BRING SUCH A
STATUTE UNDER THE WORD 'PROCEDURE.'  COULD YOU? 

"ATTORNEY GENERAL KATZENBACH.  I WOULD SUPPOSE THAT YOU COULD IF IT
HAD THAT PURPOSE.  I HAD THOUGHT OF THE WORD 'PROCEDURE' AS INCLUDING
ANY KIND OF PRACTICE OF THAT KIND IF ITS PURPOSE OR EFFECT WAS TO DENY
OR ABRIDGE THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR. 

"SENATOR FONG.  THE WAY IT IS NOW WRITTEN, DO YOU THINK THERE MAY BE
A POSSIBILITY THAT THE COURT WOULD HASSLE OVER THE WORD 'PROCEDURE'? 
OR WOULD, PROBABLY, IT ALLOW SHORT REGISTRATION DAYS OR RESTRICTED
HOURS TO ESCAPE THIS PROVISION OF THE STATUTE? 

"ATTORNEY GENERAL KATZENBACH.  I DO NOT BELIEVE SO, SENATOR,
ALTHOUGH THE COMMITTEE MIGHT CONSIDER THAT.  THE LANGUAGE WAS USED IN
THE 1964 ACT ON A SIMILAR MATTER, DID USE THE TERMS 'STANDARDS,
PRACTICES, OR PROCEDURES.'  PERHAPS THAT WOULD BE BROADER THAN SIMPLY
THE WORD 'PROCEDURE' AND PERHAPS THE COMMITTEE MIGHT CONSIDER MAKING
THAT POINT CLEAR. 

"SENATOR FONG.  YOU WOULD HAVE NO OBJECTION TO EXPANDING THE WORD
'PROCEDURE'? 

ATTORNEY GENERAL KATZENBACH.  NO; IT WAS INTENDED TO BE ALL
INCLUSIVE OF ANY KIND OF PRACTICE. 

"SENATOR FONG.  I KNOW THAT IN SECTION 3(A) YOU HAVE VERY MUCH IN
DETAIL SPELLED OUT THE WORDS 'TEST OR DEVICE.' 

"ATTORNEY GENERAL KATZENBACH.  YES. 

"SENATOR FONG.  BUT YOU HAVE NOT SPELLED OUT THE WORD 'PROCEDURE.' 
I THINK THAT THE WORD 'PROCEDURE' SHOULD BE SPELLED OUT A LITTLE MORE. 

"ATTORNEY GENERAL KATZENBACH.  I THINK THAT IS A GOOD SUGGESTION,
SENATOR." 

/32/  E.G., 111 CONG.REC.  10727 (REMARKS OF SENATOR TYDINGS); 111
CONG.REC.  10725 (REMARKS OF SENATOR TALMADGE); 111 CONG.REC.  8303
(REMARKS OF SENATOR HART). 

/33/  "THE HOUSE AND SENATE COMMITTEES ON THE JUDICIARY EACH HELD
HEARINGS FOR NINE DAYS AND RECEIVED TESTIMONY FROM A TOTAL OF 67
WITNESSES.  MORE THAN THREE FULL DAYS WERE CONSUMED DISCUSSING THE BILL
ON THE FLOOR OF THE HOUSE, WHILE THE DEBATE IN THE SENATE COVERED 26
DAYS IN ALL."  SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301, 308-309
(1966). 

        APPENDIX TO OPINION OF THE COURT. 

CHANGES IN THE MISSISSIPPI STATUTES ARE INDICATED AS FOLLOWS:
MATERIAL ADDED BY AMENDMENT IS ITALICIZED AND MATERIAL DELETED BY
AMENDMENT IS UNDERSCORED.  PORTIONS OF THE STATUES UNCHANGED BY
AMENDMENT ARE PRINTED IN PLAIN ROMAN. 


"WHENEVER A STATE OR POLITICAL SUBDIVISION WITH RESPECT TO WHICH THE
PROHIBITIONS SET FORTH IN SECTION 4(A) (42 U.S.C. 1973BA) ARE IN EFFECT
SHALL ENACT OR SEEK TO ADMINSTER ANY VOTING QUALIFICATION OR
PREREQUISITE TO VOTING, OR STANDARD, PRACTICE, OR PROCEDURE WITH
RESPECT TO VOTING DIFFERENT FROM THAT IN FORCE OR EFFECT ON NOVEMBER 1,
1964, SUCH STATE OR SUBDIVISION MAY INSTITUTE AN ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR A DECLARATORY
JUDGMENT THAT SUCH QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR
PROCEDURE DOES NOT HAVE THE PURPOSE AND WILL NOT HAVE THE EFFECT OF
DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR, AND
UNLESS AND UNTIL THE COURT ENTERS SUCH JUDGMENT NO PERSON SHALL BE
DENIED THE RIGHT TO VOTE FOR FAILURE TO COMPLY WITH SUCH QUALIFICATION,
PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE:  PROVIDED, THAT SUCH
QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE MAY BE
ENFORCED WITHOUT SUCH PROCEEDING IF THE QUALIFICATION, PREREQUISITE,
STANDARD, PRACTICE, OR PROCEDURE HAS BEEN SUBMITTED BY THE CHIEF LEGAL
OFFICER OR OTHER APPROPRIATE OFFICIAL OF SUCH STATE OR SUBDIVISION TO
THE ATTORNEY GENERAL AND THE ATTORNEY GENERAL HAS NOT INTERPOSED AN
OBJECTION WITHIN SIXTY DAYS AFTER SUCH SUBMISSION, EXCEPT THAT NEITHER
THE ATTORNEY GENERAL'S FAILURE TO OBJECT NOR A DECLARATORY JUDGMENT
ENTERED UNDER THIS SECTION SHALL BAR A SUBSEQUENT ACTION TO ENJOIN
ENFORCEMENT OF SUCH QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR
PROCEDURE.  ANY ACTION UNDER THIS SECTION SHALL BE HEARD AND DETERMINED
BY A COURT OF THREE JUDGES IN ACCORDANCE WITH THE PROVISIONS OF SECTION
2284 OF TITLE 28 OF THE U.S.C. AND ANY APPEAL SHALL LIE TO THE SUPREME
COURT."  79 STAT. 439, 42 U.S.C. 1973C (1964 ED., SUPP. I). 

THE ACT FURTHER PROVIDES: 

"THE TERMS 'VOTE' OR 'VOTING' SHALL INCLUDE ALL ACTION NECESSARY TO
MAKE A VOTE EFFECTIVE IN ANY PRIMARY, SPECIAL, OR GENERAL ELECTION,
INCLUDING, BUT NOT LIMITED TO, REGISTRATION, LISTING PURSUANT TO THIS
ACT, OR OTHER ACTION REQUIRED BY LAW PREREQUISITE TO VOTING, CASTING A
BALLOT, AND HAVING SUCH BALLOT COUNTED PROPERLY AND INCLUDED IN THE
APPROPRIATE TOTALS OF VOTERS CAST WITH RESPECT TO CANDIDATES FOR PUBLIC
OR PARTY OFFICE AND PROPOSITIONS FOR WHICH VOTES ARE RECEIVED IN AN
ELECTION."  79 STAT. 445, 42 U.S.C. 1973LC)(1) (1964 ED., SUPP. I). 


"EACH COUNTY SHALL BE DIVIDED INTO FIVE (5) DISTRICTS, WITH DUE
REGARD TO EQUALITY OF POPULATION AND CONVENIENCE OF SITUATION FOR THE
ELECTION OF MEMBERS OF THE BOARDS OF SUPERVISORS, BUT THE DISTRICTS AS
NOW EXISTING SHALL CONTINUE UNTIL CHANGED.  THE QUALIFIED ELECTORS OF
EACH DISTRICT SHALL ELECT, AT THE NEXT GENERAL ELECTION, AND EVERY FOUR
(4) YEARS THEREAFTER, IN THEIR DISTRICT, ONE (1) MEMBER OF THE BOARD OF
SUPERVISORS; AND THE BOARD, BY UNANIMOUS VOTE OF ALL MEMBERS ELECTED OR
WHEN SO ORDERED BY A VOTE OF THE MAJORITY OF THE QUALIFIED ELECTORS OF
THE DISTRICTS AFFECTED VOTING IN AN ELECTION AS HEREINAFTER PROVIDED,
MAY AT ANY TIME, EXCEPT AS HEREINAFTER PROVIDED, CHANGE OR ALTER THE
DISTRICT, THE BOUNDARIES TO BE ENTERED AT LARGE IN THE MINUTES OF THE
PROCEEDINGS OF THE BOARD.     "THE BOARD, UPON THE PETITION OF TWENTY
FIVE PER CENT (25%) OF THE QUALIFIED ELECTORS OF THE COUNTY, ASKING
THAT THE DISTRICTS OF THE COUNTY BE CHANGED, OR ALTERED, AND SETTING
OUT IN SUCH PETITION THE CHANGES, OR ALTERATIONS DESIRED, SHALL CALL A
SPECIAL ELECTION FOR A DATE WHICH SHALL BE NOT LESS THAN THIRTY (30),
NOR MORE THAN SIXTY (60) DAYS FROM THE DATE OF THE PRESENTATION OF THE
PETITION TO THE ASSEMBLED BOARD.  A MAJORITY OF THE QUALIFIED ELECTORS
OF THE COUNTY SHALL DETERMINE THE ISSUE OF SUCH ELECTION. 

"PROVIDED, HOWEVER, THAT IN ANY COUNTY IN THE STATE HAVING A
SUPERVISORS DISTRICT CONTAINING MORE THAN FIFTY PER CENT (50%) OF THE
POPULATION OF THE COUNTY ACCORDING TO THE LAST FEDERAL CENSUS AND/OR
MORE THAN FIFTY PER CENT (50%) OF THE ASSESSED VALUATION OF THE COUNTY,
THE ISSUE OF THE ELECTION HERETOFORE PROVIDED FOR SHALL BE DETERMINED
BY A MAJORITY OF THOSE PARTICIPATING IN SAID ELECTION. 

"PROVIDED FURTHER, HOWEVER, THAT IN ANY COUNTY IN THE STATE
BORDERING ON THE GULF OF MEXICO OR MISSISSIPPI SOUND AND HAVING A
POPULATION IN EXCESS OF EIGHTY THOUSAND (80,000) ACCORDING TO THE LAST
FEDERAL CENSUS, THE ISSUE OF THE ELECTION HERETOFORE PROVIDED FOR SHALL
BE DETERMINED BY A MAJORITY OF THE QUALIFIED ELECTORS OF THE COUNTY,
AND IF SUCH MAJORITY FAIL TO VOTE AFFIRMATIVELY, NO NEW PETITION SHALL
BE CONSIDERED FOR FOUR (4) YEARS.  EACH SUCH ELECTION SHALL BE BASED
UPON A PETITION OF TWENTY-FIVE PER CENT (25%) OF THE QUALIFIED ELECTORS
OF THE COUNTY, AND TO WHICH PETITION SHALL BE ATTACHED A MAP OR PLAT
DEFINING THE BOUNDARIES OF EACH BEAT AS PROPOSED BY SAID MAP OR PLAT,
AND THE ELECTION THEREON SHALL BE ON SUCH PROPOSAL. 

"AND THE BOARD, WHENEVER A MAJORITY OF THE QUALIFIED ELECTORS OF THE
COUNTY SHALL HAVE VOTED TO CHANGE OR ALTER THE EXISTING DISTRICTS TO
THOSE SET FORTH AND DESCRIBED IN THE PETITION, SHALL AT ITS FIRST
MEETING THEREAFTER ESTABLISH SAID PROPOSED DISTRICTS BY ORDER ON ITS
MINUTES, TO BE EFFECTIVE ON THE FIRST DAY OF JANUARY FOLLOWING; AND IN
DEFAULT THEREOF, MAY BE COMMANDED TO DO SO BY WRIT OF MANDAMUS. 

"WHEN THE DISTRICTS ARE CHANGED, BY THE QUALIFIED ELECTORS IN AN
ELECTION AS AFORESAID, THE BOARD, OF ITS OWN MOTION, SHALL NOT CHANGE
OR ALTER SAID DISTRICTS WITHIN FOUR (4) YEARS THEREAFTER. 

"THE BOARD OF SUPERVISORS OF ANY COUNTY MAY ADOPT AN ORDER PROVIDING
THAT ALL THE QUALIFIED ELECTORS OF THE COUNTY SHALL BE ELIGIBLE TO VOTE
FOR EACH MEMBER OF THE BOARD OF SUPERVISORS BUT EACH CANDIDATE SHALL BE
A RESIDENT OF THE DISTRICT WHICH HE PROPOSES TO REPRESENT; SAID ORDER
TO BE ADAPTED AND PUBLISHED IN A NEWSPAPER HAVING GENERAL CIRCULATION
IN THE COUNTY AT LEAST TWELVE (12) MONTHS PRIOR TO THE NEXT GENERAL
ELECTION WHEREIN SAID SUPERVISORS ARE ELECTED. 

"IF TWENTY PER CENT (20%) OF THE QUALIFIED ELECTORS OF THE COUNTY
SHALL PRESENT THE BOARD OF SUPERVISORS WITH A PETITION OBJECTING TO
SUCH ALTERNATE METHOD WITHIN SIXTY (60) DAYS AFTER THE ADOPTION AND
FINAL PUBLICATION OF ANY SUCH ALTERNATIVE METHOD, THEN THE BOARD OF
SUPERVISORS SHALL CALL AN ELECTION AFTER PUBLISHING NOTICE THEREOF IN A
NEWSPAPER PUBLISHED IN THE COUNTY ONCE A WEEK FOR AT LEAST THREE (3)
WEEKS PRIOR TO SUCH ELECTION AND THE QUESTION ON THE BALLOT SHALL BE
WHETHER THE ENTIRE ELECTORATE OF THE COUNTY SHALL BE REQUIRED TO VOTE
FOR THE MEMBERS OF THE BOARD OF SUPERVISORS AT LARGE, OR WHETHER THE
QUALIFIED ELECTORS IN THE SAID DISTRICTS SHALL VOTE FOR THE CANDIDATE
IN THAT DISTRICT.  IF THE MAJORITY OF THOSE VOTING VOTE THAT ALL THE
QUALIFIED ELECTORS SHALL BE ELIGIBLE TO VOTE FOR CANDIDATES IN EACH
DISTRICT, THEN THEREAFTER ALL ELECTIONS FOR MEMBERS OF BOARDS OF
SUPERVISORS SHALL SO BE HELD.  IF NOT, MEMBERS OF THE BOARDS OF
SUPERVISORS SHALL CONTINUE TO BE ELECTED BY THE ELECTORATE OF THEIR
RESPECTIVE DISTRICTS AND THE BOARD OF SUPERVISORS SHALL NOT BE
PERMITTED TO ADOPT THIS ALTERNATIVE METHOD OF ELECTING MEMBERS OF
BOARDS OF SUPERVISORS AGAIN UNTIL TWO (2) YEARS HAVE TRANSPIRED. 

"THIS ACT SHALL NOT BE CONSTRUED TO AFFECT ANY SUPERVISOR NOW
HOLDING OFFICE UNTIL THE EXPIRATION AND END OF HIS PRESENT TERM OF
OFFICE." 


        *          *          *          * 

"(B) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) HEREOF, THE
OFFICE OF COUNTY SUPERINTENDENT OF EDUCATION MAY BE MADE APPOINTIVE IN
ANY COUNTY IN THE MANNER HEREIN PROVIDED.  UPON THE FILING OF A
PETITION SIGNED BY NOT LESS THAN TWENTY PER CENT (20%) OF THE QUALIFIED
ELECTORS OF SUCH COUNTY, IT SHALL BE THE DUTY OF THE BOARD OF
SUPERVISORS OF SUCH COUNTY, WITHIN SIXTY (60) DAYS AFTER THE FILING OF
SUCH PETITION, TO CALL A SPECIAL ELECTION AT WHICH THERE SHALL BE
SUBMITTED TO THE QUALIFIED ELECTORS OF SUCH COUNTY THE QUESTION OF
WHETHER THE OFFICE OF COUNTY SUPERINTENDENT OF EDUCATION OF SAID COUNTY
SHALL CONTINUE TO BE ELECTIVE OR SHALL BE FILLED BY APPOINTMENT BY THE
COUNTY BOARD OF EDUCATION OF SAID COUNTY.  PROVIDED, HOWEVER, THAT
WHERE A CLASS THREE COUNTY HAVING AN AREA IN EXCESS OF EIGHT HUNDRED
TWENTY-FIVE (825) SQUARE MILES HAS A COUNTY UNIT SCHOOL SYSTEM
COMPRISING LESS THAN AN ENTIRE COUNTY, THE PETITION SHALL ONLY BE
SIGNED BY ELECTORS RESIDING WITHIN THE COUNTY UNIT SCHOOL DISTRICT AND
ONLY ELECTORS OF SAID DISTRICT SHALL VOTE ON THE PROPOSITION OF
APPOINTING THE COUNTY SUPERINTENDENT OF EDUCATION.  THE ORDER CALLING
SUCH SPECIAL ELECTION SHALL DESIGNATE THE DATE UPON WHICH SAME SHALL BE
HELD AND A NOTICE OF SUCH ELECTION, SIGNED BY THE CLERK OF THE BOARD OF
SUPERVISORS, SHALL BE PUBLISHED ONCE A WEEK FOR AT LEAST THREE (3)
CONSECUTIVE WEEKS IN AT LEAST ONE (1) NEWSPAPER PUBLISHED IN SUCH
COUNTY.  THE FIRST PUBLICATION OF SUCH NOTICE SHALL BE MADE NOT LESS
THAN TWENTY-ONE (21) DAYS PRIOR TO THE DATE FIXED FOR SUCH ELECTION AND
THE LAST PUBLICATION SHALL BE MADE NOT MORE THAN SEVEN (7) DAYS PRIOR
TO SUCH DATE.  IF NO NEWSPAPER IS PUBLISHED IN SUCH COUNTY THEN SUCH
NOTICE SHALL BE GIVEN BY PUBLICATION OF SAME FOR THE REQUIRED TIME IN
SOME NEWSPAPER HAVING A GENERAL CIRCULATION IN SUCH COUNTY AND, IN
ADDITION, BY POSTING A COPY OF SUCH NOTICE FOR AT LEAST TWENTY-ONE (21)
DAYS NEXT PRECEDING SUCH ELECTION AT THREE (3) PUBLIC PLACES IN SUCH
COUNTY, ONE (1) OF WHICH SHALL BE AT THE DOOR OF THE COUNTY COURTHOUSE
IN EACH JUDICIAL DISTRICT.  SAID ELECTION SHALL BE HELD, AS FAR AS IS
PRACTICABLE, IN THE SAME MANNER AS OTHER ELECTIONS ARE HELD IN SUCH
COUNTY AND ALL QUALIFIED ELECTORS OF THE COUNTY MAY VOTE THEREIN.  IF A
MAJORITY OF SUCH QUALIFIED ELECTORS WHO VOTE IN SUCH ELECTION SHALL
VOTE IN FAVOR OF THE APPOINTMENT OF THE COUNTY SUPERINTENDENT OF
EDUCATION BY THE COUNTY BOARD OF EDUCATION THEN, AT THE EXPIRATION OF
THE TERM OF THE COUNTY SUPERINTENDENT OF EDUCATION THEN IN OFFICE, THE
COUNTY SUPERINTENDENT OF EDUCATION OF SAID COUNTY SHALL NOT BE ELECTED
BUT SHALL THEREAFTER BE APPOINTED BY THE COUNTY BOARD OF EDUCATION FOR
A TERM OF NOT MORE THAN FOUR (4) YEARS; OTHERWISE, SAID OFFICE SHALL
REMAIN ELECTIVE.  NO SPECIAL ELECTION SHALL BE HELD IN ANY COUNTY UNDER
THE PROVISIONS OF THIS SUBSECTION MORE OFTEN THAN ONCE IN EVERY FOUR
(4) YEARS, AND NO CHANGE FROM THE ELECTIVE TO THE APPOINTIVE METHOD OF
THE SELECTION OF THE COUNTY SUPERINTENDENT OF EDUCATION SHALL BECOME
EFFECTIVE EXCEPT AT THE EXPIRATION OF THE TERM OF THE COUNTY
SUPERINTENDENT OF EDUCATION IN OFFICE AT THE TIME SUCH ELECTION IS
HELD. 

"IN ANY COUNTY OF THE FIRST CLASS LYING WHOLLY WITHIN A LEVEE
DISTRICT AND WITHIN WHICH THERE IS SITUATED A CITY OF MORE THAN FORTY
THOUSAND (40,000) POPULATION ACCORDING TO THE LAST DECENNIAL FEDERAL
CENSUS THE COUNTY SUPERINTENDENT OF EDUCATION SHALL HEREAFTER BE
APPOINTED BY THE COUNTY BOARD OF EDUCATION AS ABOVE PROVIDED. 

"IN ANY COUNTY OF THE SECOND CLASS WHERE INTERSTATE HIGHWAY 55 AND
STATE HIGHWAY 22 INTERSECT AND WHICH IS ALSO TRAVERSED IN WHOLE OR IN
PART BY U.S. HIGHWAYS 49 AND 51, AND STATE HIGHWAYS 16, 17 AND 43 AND
THE NATCHEZ TRACE; IN ANY CLASS FOUR COUNTY HAVING A POPULATION IN
EXCESS OF TWENTY-FIVE THOUSAND (25,000) ACCORDING TO THE 1960 FEDERAL
CENSUS, TRAVERSED BY U.S. INTERSTATE HIGHWAY 55 AND WHEREIN MISSISSIPPI
HIGHWAYS 12 AND 17 INTERSECT; IN ANY COUNTY CREATED AFTER 1915 THROUGH
WHICH THE YAZOO RIVER FLOWS; IN ANY CLASS FOUR COUNTY HAVING A LAND
AREA OF SIX HUNDRED NINETY-FIVE (695) SQUARE MILES, BORDERING ON THE
STATE OF ALABAMA, WHEREIN THE TREATY OF DANCING RABBIT WAS SIGNED AND
WHEREIN U.S. HIGHWAY 45 AND MISSISSIPPI HIGHWAY 14, INTERSECT; IN ANY
COUNTY BORDERING ON THE MISSISSIPPI RIVER WHEREIN LIES THE CAMPUS OF A
LAND-GRANT INSTITUTION OR LANDS CONTIGUOUS THERETO OWNED BY THE
INSTITUTION; IN ANY COUNTY LYING WITHIN THE YAZOO-MISSISSIPPI DELTA
LEVEE DISTRICT, BORDERING UPON THE MISSISSIPPI RIVER, AND HAVING A
COUNTY SEAT WITH A POPULATION IN EXCESS OF TWENTY-ONE THOUSAND (21,000)
ACCORDING TO THE FEDERAL CENSUS OF 1960; IN ANY COUNTY HAVING A
POPULATION OF TWENTY-SIX THOUSAND SEVEN HUNDRED FIFTY-NINE (26,759)
ACCORDING TO THE 1960 FEDERAL CENSUS, AND WHEREIN U.S. HIGHWAY 51 AND
U.S. HIGHWAY 84 AND THE ILLINOIS CENTRAL RAILROAD AND THE MISSISSIPPI
CENTRAL RAILROAD INTERSECT; IN ANY CLASS THREE COUNTY WHEREIN IS
PARTIALLY LOCATED A NATIONAL FOREST AND WHEREIN U.S. HIGHWAY 51 AND
MISSISSIPPI HIGHWAY 28 INTERSECT, WITH A 1960 FEDERAL CENSUS OF TWENTY
SEVEN THOUSAND FIFTY-ONE (27,051) AND A 1963 ASSESSED VALUATION OF
$16,692,304.00; THE COUNTY SUPERINTENDENT OF EDUCATION HEREAFTER SHALL
BE APPOINTED BY THE COUNTY BOARD OF EDUCATION. 

"IN ANY COUNTY BORDERING ON THE GULF OF MEXICO OR MISSISSIPPI SOUND,
HAVING THEREIN A TEST FACILITY OPERATED BY THE NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION, THE COUNTY SUPERINTENDENT OF EDUCATION SHALL BE
APPOINTED BY THE COUNTY BOARD OF EDUCATION BEGINNING JANUARY 1, 1972." 

        *          *          *          * 


"'THE BALLOT SHALL CONTAIN THE NAMES OF ALL CANDIDATES WHO HAVE BEEN
PUT IN NOMINATION, NOT LESS THAN FORTY (40) DAYS PREVIOUS TO THE DAY OF
THE ELECTION, BY THE PRIMARY ELECTION OF ANY POLITICAL PARTY.  THERE
SHALL BE PRINTED ON THE BALLOTS THE NAMES OF ALL PERSONS SO NOMINATED,
WHETHER THE NOMINATION BE OTHERWISE KNOWN OR NOT, UPON THE WRITTEN
REQUEST OF ONE OR MORE OF THE CANDIDATES SO NOMINATED, OR OF ANY
QUALIFIED ELECTOR WHO WILL MAKE OATH THAT HE WAS A PARTICIPANT IN THE
PRIMARY ELECTION, AND THAT THE PERSON WHOSE NAME IS PRESENTED BY HIM
WAS NOMINATED BY SUCH PRIMARY ELECTION.  NO PERSON WHO HAS VOTED IN A
PRIMARY ELECTION SHALL THEREAFTER HAVE HIS NAME PLACED UPON THE BALLOT
AS AN INDEPENDENT CANDIDATE FOR ANY OFFICE TO BE DETERMINED BY THE
GENERAL ELECTION; ANY INDEPENDENT CANDIDATE MUST QUALIFY ON OR BEFORE
THE TIME ESTABLISHED BY STATUTE FOR QUALIFICATION OF CANDIDATES SEEKING
NOMINATIONS IN PRIMARY ELECTIONS.  THE COMMISSIONER SHALL ALSO HAVE
PRINTED ON THE BALLOT IN ANY GENERAL OR SPECIAL ELECTION THE NAME OF
ANY CANDIDATE WHO, NOT HAVING BEEN NOMINATED BY A POLITICAL PARTY,
SHALL HAVE BEEN REQUESTED TO BE A CANDIDATE FOR ANY OFFICE AS AN
INDEPENDENT CANDIDATE BY A PETITION FILED ON OR BEFORE THE STATUTORY
TIME WITH SAID COMMISSIONER NOT LESS THAN FORTY (40) DAYS PRIOR TO THE
ELECTION, AND SIGNED BY NOT LESS THAN THE FOLLOWING NUMBER OF QUALIFIED
ELECTORS: 

"(A) FOR AN OFFICE ELECTED BY THE STATE AT LARGE, NOT LESS THAN ONE
THOUSAND (1,000) TEN THOUSAND (10,000) QUALIFIED ELECTORS. 

"(B) FOR AN OFFICE ELECTED BY THE QUALIFIED ELECTORS OF A SUPREME
COURT DISTRICT, NOT LESS THAN THREE HUNDRED (300) THREE THOUSAND FIVE
HUNDRED (3,500) QUALIFIED ELECTORS. 

"(C) FOR AN OFFICE ELECTED BY THE QUALIFIED ELECTORS OF A
CONGRESSIONAL DISTRICT, NOT LESS THAN TWO HUNDRED (200) TWO THOUSAND
(2,000) QUALIFIED ELECTORS. 

"(D) FOR AN OFFICE ELECTED BY THE QUALIFIED ELECTORS OF A CIRCUIT OR
CHANCERY COURT DISTRICT, NOT LESS THAN ONE HUNDRED (100) ONE THOUSAND
(1,000) QUALIFIED ELECTORS. 

"(E) FOR AN OFFICE ELECTED BY THE QUALIFIED ELECTORS OF A COUNTY, A
SENATORIAL DISTRICT, OR FLOATORIAL (SIC) DISTRICT, A SUPERVISORS
DISTRICT, OR A MUNICIPALITY HAVING A POPULATION OF ONE THOUSAND (1,000)
OR MORE, NOT LESS THAN TEN PER CENT (10%) OF THE QUALIFIED ELECTORS OF
SAID COUNTY, SENATORIAL DISTRICT, SUPERVISORS DISTRICT, OR
MUNICIPALITY, OR NOT LESS THAN FIVE HUNDRED (500), FIFTY (50) QUALIFIED
ELECTORS, WHICHEVER IS THE LESSER. 

"(F) FOR AN OFFICE ELECTED BY THE QUALIFIED ELECTORS OF A
SUPERVISORS DISTRICT OR A MUNICIPALITY HAVING A POPULATION OF LESS THAN
ONE THOUSAND (1,000), NOT LESS THAN FIFTEEN (15) TEN PER CENT (10%) OF
THE QUALIFIED ELECTORS OF SAID SUPERVISORS DISTRICT OR MUNICIPALITY. 

"EACH ELECTOR SHALL PERSONALLY SIGN SAID PETITION WHICH SIGNATURE
SHALL NOT BE COUNTED UNLESS SAME INCLUDES HIS POLLING PRECINCT AND
COUNTY. 

"THERE SHALL BE ATTACHED TO EACH PETITION ABOVE PROVIDED FOR UPON
THE TIME OF FILING WITH SAID COMMISSION, A CERTIFICATE FROM THE
APPROPRIATE REGISTRAR OR REGISTRARS SHOWING THE NUMBER OF QUALIFIED
ELECTORS APPEARING UPON EACH SUCH PETITION WHICH THE REGISTRAR SHALL
FURNISH TO THE PETITIONER UPON REQUEST. 

"UNLESS THE PETITION REQUIRED ABOVE SHALL BE FILED NOT LESS THAN
FORTY (40) DAYS PRIOR TO THE ELECTION, UNLESS THE PETITION REQUIRED
ABOVE SHALL BE FILED NOT LATER THAN THE TIME REQUIRED FOR PRIMARY
ELECTIONS, THE NAME OF THE PERSON REQUESTED TO BE A CANDIDATE, UNLESS
NOMINATED BY A POLITICAL PARTY, SHALL NOT BE PLACED UPON THE BALLOT. 
THE BALLOT SHALL CONTAIN THE NAMES OF EACH CANDIDATE FOR EACH OFFICE,
AND SUCH NAMES SHALL BE LISTED UNDER THE NAME OF THE POLITICAL PARTY
SUCH CANDIDATE REPRESENTS."     SECTION 24-252 OF THE CODE OF VIRGINIA
OF 1950: 

"INSERTION OF NAMES ON BALLOTS.-- AT ALL ELECTIONS EXCEPT PRIMARY
ELECTIONS IT SHALL BE LAWFUL FOR ANY VOTER TO PLACE ON THE OFFICIAL
BALLOT THE NAME OF ANY PERSON IN HIS OWN HANDWRITING THEREON (SIC) AND
TO VOTE FOR SUCH OTHER PERSON FOR ANY OFFICE FOR WHICH HE MAY DESIRE TO
VOTE AND MARK THE SAME BY A CHECK OR CROSS (X OR .)  MARK OR A LINE (-)
IMMEDIATELY PRECEDING THE NAME INSERTED.  PROVIDED, HOWEVER, THAT
NOTHING CONTAINED IN THIS SECTION SHALL AFFECT THE OPERATION OF SEC. 24
251 OF THE CODE OF VIRGINIA.  NO BALLOT, WITH A NAME OR NAMES PLACED
THEREON IN VIOLATION OF THIS SECTION, SHALL BE COUNTED FOR SUCH
PERSON." 

THE BULLETIN ISSUED BY THE STATE BOARD OF ELECTIONS: 

"ON AUGUST 6, 1965, THE 'VOTING RIGHTS ACT OF 1965' ENACTED BY THE
CONGRESS OF THE UNITED STATES BECAME EFFECTIVE AND IS NOW IN FORCE IN
VIRGINIA.  UNDER THE PROVISIONS OF THIS ACT, ANY PERSON QUALIFIED TO
VOTE IN THE GENERAL ELECTION TO BE HELD NOVEMBER 2, 1965, WHO IS UNABLE
TO MARK OR CAST HIS BALLOT, IN WHOLE OR IN PART, BECAUSE OF A LACK OF
LITERACY (IN ADDITION TO ANY OF THE REASONS SET FORTH IN SECTION 24-251
OF THE VIRGINIA CODE) SHALL, IF HE SO REQUESTS, BE AIDED IN THE
PREPARATION OF HIS BALLOT BY ONE OF THE JUDGES OF ELECTION SELECTED BY
THE VOTER.  THE JUDGE OF ELECTION SHALL ASSIST THE VOTER, UPON HIS
REQUEST, IN THE PREPARATION OF HIS BALLOT IN ACCORDANCE WITH THE
VOTER'S INSTRUCTIONS, AND SHALL NOT IN ANY MANNER DIVULGE OR INDICATE,
BY SIGNS OR OTHERWISE, THE NAME OR NAMES OF THE PERSON OR PERSONS FOR
WHOM ANY VOTER SHALL VOTE. 

"THESE INSTRUCTIONS ALSO APPLY TO PRECINCTS IN WHICH VOTING MACHIES
ARE USED." 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

THE COURT'S OPINION SEEKS TO DO JUSTICE BY GRANTING EACH SIDE HALF
OF WHAT IT REQUESTS.  THE MAJORITY FIRST GRANTS APPELLANTS ALL THEY
COULD HOPE FOR, BY ADOPTING AN OVERLY BROAD CONSTRUCTION OF SEC. 5 OF
THE VOTING RIGHTS ACT.  AS IF TO COMPENSATE FOR ITS GENEROSITY, THE
COURT THEN DENIES SOME OF THE SAME APPELLANTS THE RELIEF THAT THEY
DESERVE.  SECTION 5 IS THEREBY REDUCED TO A DEAD LETTER IN A VERY
SUBSTANTIAL NUMBER OF SITUATIONS IN WHICH IT WAS INTENDED TO HAVE ITS
FULL EFFECT.  /1/

        I. 

I SHALL FIRST CONSIDER THIE COURT'S EXTREMELY BROAD CONSTRUCTION OF
SEC. 5.  IT IS BEST TO BEGIN BY DELINEATING THE PRECISE AREA OF
DIFFERENCE BETWEEN THE POSITION THE MAJORITY ADOPTS AND THE ONE WHICH I
CONSIDER REPRESENTS THE BETTER VIEW OF THE STATUTE.  WE ARE IN
AGREEMENT THAT IN REQUIRING FEDERAL REVIEW OF CHANGES IN ANY "STANDARD,
PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING," CONGRESS INTENDED TO
INCLUDE ALL STATE LAWS THAT CHANGED THE PROCESS BY WHICH VOTERS WERE
REGISTERED AND HAD THEIR BALLOTS COUNTED.  THE COURT, HOWEVER, GOES
FURTHER TO HOLD THAT A STATE COVERED BY THE ACT MUST SUBMIT FOR FEDERAL
APPROVAL ALL THOSE LAWS THAT COULD ARGUABLY HAVE AN IMPACT ON NEGRO
VOTING POWER, EVEN THOUGH THE MANNER IN WHICH THE ELECTION IS CONDUCTED
REMAINS UNCHANGED.  I BELIEVE THAT THIS READING OF THE STATUTE SHOULD
BE REJECTED ON SEVERAL GROUNDS.  IT IGNORES THE PLACE OF SEC. 5 IN THE
LARGER STRUCTURE OF THE ACT; IT IS UNTRUE TO THE STATUTE'S LANGUAGE;
AND IT IS UNSUPPORTED BY THE LEGISLATIVE HISTORY. 

        A. 

FIRST, AND MOST IMPORTANT, THE COURT'S CONSTRUCTION IGNORES THE
STRUCTURE OF THE COMPLEX REGULATORY SCHEME CREATED BY THE VOTING RIGHTS
ACT.  THE COURT'S OPINION ASSUMES THAT SEC. 5 MAY BE CONSIDERED APART
FROM THE REST OF THE ACT.  IN FACT, HOWEVER, THE PROVISION IS CLEARLY
DESIGNED TO MARCH IN LOCK-STEP WITH SEC. 4-- THE TWO SECTIONS CANNOT BE
UNDERSTOOD APART FROM ONE ANOTHER.  SECTION 4 IS ONE OF THE ACT'S
CENTRAL PROVISIONS, SUSPENDING THE OPERATION OF ALL LITERACY TESTS AND
SIMILAR "DEVICES"  /2/  FOR AT LEAST FIVE YEARS IN STATES WHOSE LOW
VOTER TURNOUT INDICATED THAT THESE "TESTS" AND "DEVICES" HAD BEEN USED
TO EXCLUDE NEGROES FROM THE SUFFRAGE IN THE PAST.  SECTION 5, MOREOVER,
REVEALS THAT IT WASNOT DESIGNED TO IMPLEMENT NEW SUBSTANTIVE POLICIES
BUT THAT IT WAS STRUCTURED TO ASSURE THE EFFECTIVENESS OF THE DRAMATIC
STEP THAT CONGRESS HAD TAKEN IN SEC. 4.  THE FEDERAL APPROVAL PROCEDURE
FOUND IN SEC. 5 ONLY APPLIES TO THOSE STATES WHOSE LITERACY TESTS OR
SIMILAR "DEVICES" HAVE BEEN SUSPENDED BY SEC. 4.  AS SOON AS A STATE
REGAINS THE RIGHT TO APPLY A LITERACY TEST OR SIMILAR "DEVICE" UNDER
SEC. 4, IT ALSO ESCAPES THE COMMANDS OF SEC. 5. 

THE STATUTORY SCHEME CONTAINS EVEN MORE STRIKING CHARACTERISTICS
WHICH INDICATE THAT SEC. 5'S FEDERAL REVIEW PROCEDURE IS ANCILLARY TO
SEC. 4'S SUBSTANTIVE COMMANDS.  A STATE MAY ESCAPE SEC. 5, EVEN THOUGH
IT HAS CONSISTENTLY VIOLATED THIS PROVISION, SO LONG AS IT HAS COMPLIED
WITH SEC. 4, AND HAS SUSPENDED THE OPERATION OF LITERACY TESTS AND
OTHER "DEVICES" FOR FIVE YEARS.  ON THE OTHER HAND, NO MATTER HOW
FAITHFULLY A STATE COMPLIES WITH SEC. 5, IT REMAINS SUBJECT TO ITS
COMMANDS SO LONG AS IT HAS NOT CONSISTENTLY OBEYED SEC. 4.  /3/ 

AS SOON AS IT IS RECOGNIZED THAT SEC. 5 WAS DESIGNED SOLELY TO
IMPLEMENT THE POLICIES OF SEC. 4, IT BECOMES APPARENT THAT THE COURT'S
DECISION TODAY PERMITS THE TAIL TO WAG THE DOG.  FOR THE COURT HAS NOW
CONSTRUED SEC. 5 TO REQUIRE A REVOLUTIONARY INNOVATION IN AMERICAN
GOVERNMENT THAT GOES FAR BEYOND THAT WHICH WAS ACCOMPLISHED BY SEC. 4. 
THE FOURTH SECTION OF THE ACT HAD THE PREFOUNDLY IMPORTANT PURPOSE OF
PERMITTING THE NEGRO PEOPLE TO GAIN ACCESS TO THE VOTING BOOTHS OF THE
SOUTH ONCE AND FOR ALL.  BUT THE ACTION TAKEN BY CONGRESS IN SEC. 4
PROCEEDED ON THE PREMISE THAT ONCE NEGROES HAD GAINED FREE ACCESS TO
THE BALLOT BOX, STATE GOVERNMENTS WOULD THEN BE SUITABLY RESPONSIVE TO
THEIR VOICE, AND FEDERAL INTERVENTION WOULD NOT BE JUSTIFIED.  IN
MOVING AGAINST "TESTS AND DEVICES" IN SEC. 4, CONGRESS MOVED ONLY
AGAINST THOSE TECHNIQUES THAT PREVENTED NEGROES FROM VOTING AT ALL. 
CONGRESS DID NOT ATTEMPT TO RESTRUCTURE STATE GOVERNMENTS.  THE COURT
NOW READS SEC. 5, HOWEVER, AS VASTLY INCREASING THE SPHERE OF FEDERAL
INTERVENTION BEYOND THAT CONTEMPLATED BY SEC. 4, DESPITE THE FACT THAT
THE TWO PROVISIONS WERE DESIGNED SIMPLY TO INTERLOCK.  THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA IS NO LONGER LIMITED TO EXAMINING
ANY NEW STATE STATUTE THAT MAY TEND TO DENY NEGROES THEIR RIGHT TO
VOTE, AS THE "TESTS AND DEVICES" SUSPENDED BY SEC. 4 HAD DONE.  THE
DECISION TODAY ALSO REQUIRES THE SPECIAL DISTRICT COURT TO DETERMINE
WHETHER VARIOUS SYSTEMS OF REPRESENTATION FAVOR OR DISFAVOR THE NEGRO
VOTER-- AN AREA WELL BEYOND THE SCOPE OF SEC. 4.  SECTION 4, FOR
EXAMPLE, DOES NOT APPLY TO STATES AND LOCALITIES WHICH HAVE IN THE PAST
PERMITTED NEGROES TO VOTE FREELY, BUT WHICH ARGUABLY HAVE LIMITED
MINORITY VOTING POWER BY ADOPTING A SYSTEM IN WHICH VARIOUS LEGISLATIVE
BODIES ARE ELECTED ON AN AT-LARGE BASIS.  AND YET, IN FAIRLEY V.
PATTERSON, NO. 25, THE COURT HOLDS THAT A STATUTE PERMITTING THE AT
LARGE ELECTION OF COUNTY BOARDS OF SUPERVISORS MUST BE REVIEWED BY
FEDERAL AUTHORITIES UNDER SEC. 5.  MOREOVER, IT IS NOT CLEAR TO ME HOW
A COURT WOULD GO ABOUT DECIDING WHETHER AN AT-LARGE SYSTEM IS TO BE
PREFERRED OVER A DISTRICT SYSTEM.  UNDER ONE SYSTEM, NEGROES HAVE SOME
INFLUENCE IN THE ELECTION OF ALL OFFICERS; UNDER THE OTHER, MINORITY
GROUPS HAVE MORE INFLUENCE IN THE SELECTION OF FEWER OFFICERS.  IF
COURTS CANNOT INTELLIGENTLY COMPARE SUCH ALTERNATIVES, IT SHOULD NOT BE
READILY INFERRED THAT CONGRESS HAS REQUIRED THEM TO UNDERTAKE THE
TASK. 

THE COURT'S CONSTRUCTION OF SEC. 5 IS EVEN MORE SURPRISING IN LIGHT
OF THE ACT'S REGIONAL APPLICATION.  FOR THE STATUTE, AS THE COURT NOW
CONSTRUES IT, DEALS WITH A PROBLEM THAT IS NATIONAL IN SCOPE.  I FIND
IT ESPECIALLY DIFFICULT TO BELIEVE THAT CONGRESS WOULD SINGLE OUT A
HANDFUL OF STATES AS REQUIRING STRICTER FEDERAL SUPERVISION CONCERNING
THEIR TREATMENT OF A PROBLEM THAT MAY WELL BE JUST AS SERIOUS IN PARTS
OF THE NORTH AS IT IS IN THE SOUTH.  /4/ 

THE DIFFICULTIES WITH THE COURT'S CONSTRUCTION INCREASE EVEN FURTHER
WHEN THE LANGUAGE OF THE STATUTE IS CONSIDERED CLOSELY.  WHEN STANDING
ALONE, THE STATUTORY FORMULA REQUIRING FEDERAL APPROVAL FOR CHANGES IN
ANY "STANDARD, PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING" CAN BE
READ TO SUPPORT EITHER THE BROAD CONSTRUCTION ADOPTED BY THE MAJORITY
OR THE ONE WHICH I HAVE ADVANCED.  BUT THE CRITICAL FORMULA DOES NOT
STAND ALONE.  IMMEDIATELY FOLLOWING THE STATUTE'S DESCRIPTION OF THE
FEDERAL APPROVAL PROCEDURE, SEC. 5 PROCEEDS TO DESCRIBE THE TYPE OF
RELIEF AN AGGRIEVED VOTER MAY OBTAIN IF A STATE ENFORCES A NEW STATUTE
WITHOUT OBTAINING THE CONSENT OF THE APPROPRIATE FEDERAL AUTHORITIES:
"NO PERSON SHALL BE DENIED THE RIGHT TO VOTE FOR FAILURE TO COMPLY WITH
SUCH QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE." 
THIS REMEDY SERVES TO DELIMIT THE MEANING OF THE FORMULA IN QUESTION. 
CONGRESS WAS CLEARLY CONCERNED WITH CHANGES IN PROCEDURE WITH WHICH
VOTERS COULD COMPLY.  BUT A LAW, LIKE THAT IN FAIRLEY V. PATTERSON, NO.
25, WHICH PERMITS ALL MEMBERS OF THE COUNTY BOARD OF SUPERVISORS TO RUN
IN THE ENTIRE COUNTY AND NOT IN SMALLER DISTRICTS, DOES NOT REQUIRE A
VOTER TO COMPLY WITH ANYTHING AT ALL, AND SO DOES NOT COME WITHIN THE
SCOPE OF THE LANGUAGE USED BY CONGRESS.  WHILE THE COURT'S OPINION
ENTIRELY IGNORES THE OBVIOUS IMPLICATIONS OF THIS PORTION OF THE
STATUTE, THE SOLICITOR GENERAL'S AMICUS BRIEF CANDIDLY ADMITS THAT THIS
PROVISION IS FLATLY INCONSISTENT WITH THE BROAD READING THE GOVERNMENT
HAS ADVANCED AND THIS COURT HAS ADOPTED.  THE GOVERNMENT'S BRIEF SIMPLY
SUGGESTS THAT CONGRESS' CHOICE OF THE VERB "COMPLY" WAS MERELY THE
RESULT OF AN OVERSIGHT.  I CANNOT ACCEPT SUCH A SUGGESTION, HOWEVER,
WHEN CONGRESS' CHOICE OF LANGUAGE SEEMS TO ME TO BE CONSISTENT WITH THE
GENERAL STATUTORY FRAMEWORK AS I UNDERSTAND IT.

        B. 

WHILE THE COURT'S OPINION DOES NOT CONFRONT THE FACTORS I HAVE JUST
CANVASSED, IT DOES ATTEMPT TO JUSTIFY ITS HOLDING ON THE BASIS OF ITS
UNDERSTANDING "OF THE LEGISLATIVE HISTORY AND AN ANALYSIS OF THE BASIC
PURPOSES OF THE ACT."  ANTE, AT 569.  TURNING FIRST TO CONSIDER THE
ACT'S BASIC PURPOSES, THE COURT SUGGESTS THAT CONGRESS INTENDED TO
ADOPT THE CONCEPT OF VOTING ARTICULATED IN REYNODLS V. SIMS, 377 U.S.
533 (1964), AND PROTECT NEGROES AGAINST A DILUTION OF THEIR VOTING
POWER.  SEE ANTE, AT 565-566, 569.  IT IS CLEAR, OF COURSE, THAT THE
COURT'S REAPPORTIONMENT DECISIONS DO NOT APPLY OF THEIR OWN FORCE TO
THE PROBLEM BEFORE US.  THIS IS A STATUTE WE ARE INTERPRETING, NOT A
BROAD CONSTITUTIONAL PROVISION WHOSE CONTOURS MUST BE DEFINED BY THIS
COURT.  THE STATES ARE REQUIRED TO SUBMIT CERTAIN KINDS OF LEGISLATION
FOR FEDERAL APPROVAL ONLY IF CONGRESS, ACTING WITHIN ITS POWERS, SO
PROVIDED.  AND THE FACT IS THAT CONGRESS CONSCIOUSLY REFUSED TO BASE
SEC. 5 OF THE VOTING RIGHTS ACT ON ITS POWERS UNDER THE FOURTEENTH
AMENDMENT, UPON WHICH THE REAPPORTIONMENT CASES ARE GROUNDED.  THE
ACT'S PREAMBLE STATES THAT IT IS INTENDED "(TO ENFORCE THE FIFTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, AND FOR OTHER
PURPOSES."  WHEN SENATOR FONG OF HAWAII SUGGESTED THAT THE PREAMBLE
INCLUDE A CITATION TO THE FOURTEENTH AMENDMENT AS WELL, THE ATTORNEY
GENERAL EXPLAINED THAT HE "WOULD HAVE QUITE A STRONG PREFERENCE NOT
TO," BECAUSE "I BELIEVE THAT S.1564 AS DRAFTED CAN BE SQUARELY BASED ON
THE 15TH AMENDMENT."  HEARINGS ON S.1564 BEFORE THE SENATE COMMITTEE ON
THE JUDICIARY, 89TH CONG., 1ST SESS., PT. 1, P. 193.  ATTORNEY GENERAL
KATZENBACH'S POSITION WAS RESTATED REPEATEDLY, /5/  AND ANY MENTION OF
THE FOURTEENTH AMENDMENT IS ABSENT FROM THIS PORTION OF THE STATUTE. 
/6/ 

AS THE REAPPORTIONMENT CASES REST UPON THE EQUAL PROTECTION CLAUSE,
THEY CANNOT BE CITED TO SUPPORT THE CLAIM THAT CONGESS, IN PASSING THIS
ACT, INTENDED TO PROCEED AGAINST STATE STATUTES REGULATING THE NATURE
OF THE CONSTITUENCIES LEGISLATORS COULD PROPERLY REPRESENT.  IF
CONGRESS INTENDED, AS IT CLEARLY DID, TO GROUND SEC. 5 ON THE FIFTEENTH
AMENDMENT, THE LEADING VOTING CASE IS NOT REYNOLDS V. SIMS, BUT
GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960).  WHILE THAT CASE
ESTABLISHES THE PROPOSITION THAT REDISTRICTING DONE WITH THE PURPOSE OF
EXCLUDING NEGROES FROM A MUNICIPALITY VIOLATES THE FIFTEENTH AMENDMENT,
IT ALSO MAINTAINS THE DISTINCTION BETWEEN AN ATTEMPT TO EXCLUDE NEGROES
TOTALLY FROM THE RELEVANT CONSTITUENCY, AND A STATUTE THAT PERMITS
NEGROES TO VOTE BUT WHICH USES THE GERRYMANDER TO CONTAIN THE IMPACT OF
NEGRO SUFFRAGE. 

IT IS UNNECESSARY, OF COURSE, TO DECIDE WHETHER GOMILLION V.
LIGHTFOOT MARKS THE LIMIT OF THE FIFTEENTH AMENDMENT.  IT IS ENOUGH TO
RECOGNIZE THAT CONGRESS DID NOT IN ANY WAY ADOPT THE REAPPORTIONMENT
CASES' EXPANSIVE CONCEPT OF VOTING WHEN IT ENACTED THE VOTING RIGHTS
ACT OF 1965.  ONCE IT IS DETERMINED THAT REYNOLDS V. SIMS HOLDS NO
MAGIC KEY TO THE "BASIC PURPOSES" OF THIS STATUTE, ONE IS OBLIGED TO
DETERMINE THE ACT'S PURPOSES IN MORE TRADITIONAL WAYS.  AND IT IS HERE
WHERE THE COURT'S OPINION FAILS TO CONVINCE.  AS I HAVE ALREADY
SUGGESTED, THE ACT'S STRUCTURE ASSIGNS TO SEC. 5 A ROLE THAT IS A GOOD
DEAL MORE MODEST THAN THE ONE WHICH THE MAJORITY GIVES IT.  /7/ 

THE MAJORITY IS LEFT, THEN, RELYING ON ITS UNDERSTANDING OF THE
LEGISLATIVE HISTORY.  WITH ALL DEFERENCE, I FIND THAT THE HISTORY THE
COURT HAS GARNERED UNDERMINES ITS CASE, INSOFAR AS IT IS ENTITLED TO
ANY WEIGHT AT ALL.  I REFER NOT ONLY TO THE UNEQUIVOCAL STATEMENT OF
ASSISTANT ATTORNEY GENERAL BURKE MARSHALL, ANTE, AT 564, WHICH THE
COURT CONCEDES TO BE DIAMETRICALLY OPPOSED TO THE CONSTRUCTION IT
ADOPTS.  FOR THE LENGTHY TESTIMONY OF ATTORNEY GENERAL KATZENBACH, UPON
WHICH THE COURT SEEMS TO RELY, ACTUALLY PROVIDES LITTLE MORE SUPPORT
FOR ITS POSITION.  MR. KATZENBACH, UNLIKE HIS PRINCIPAL ASSISTANT, WAS
NEVER DIRECTLY CONFRONTED WITH THE QUESTION RAISED HERE, AND WE ARE
LEFT TO GUESS AS TO HIS VIEWS.  IF GUESSES ARE TO BE MADE, HOWEVER,
SURELY IT IS IMPORTANT TO NOTE THAT THOUGH THE ATTORNEY GENERAL USED
MANY EXAMPLES TO ILLUSTRATE THE OPERATION OF SEC. 5, EACH OF THEM
CONCERNED STATUTES THAT HAD AN IMMEDIATE IMPACT ON VOTER QUALIFICATIONS
OR WHICH ALTERED THE MANNER IN WHICH THE ELECTION WAS CONDUCTED.  /8/
ONE WOULD IMAGINE THAT IF THE ATTORNEY GENERAL BELIEVED THAT SEC. 5 HAD
THE REMARKABLE SWEEP THE MAJORITY HAS NOW GIVEN IT, ONE OF HIS
HYPOTHETICALS WOULD HAVE BETRAYED THAT FACT.  /9/

        C. 

ONLY OF THOSE STATE LAWS THAT CHANGE EITHER VOTER QUALIFICATIONS OR THE
MANNER IN WHICH ELECTIONS ARE CONDUCTED.  THIS DOES NOT MEAN, HOWEVER,
THAT THE DISTRICT COURTS IN THE FOUR CASES BEFORE US WERE RIGHT IN
UNANIMOUSLY CONCLUDING THAT THE VOTING RIGHTS ACT DID NOT APPLY. 
RATHER, IT SEEMS TO ME THAT ONLY THE JUDGMENT IN FAIRLEY V. PATTERSON,
NO. 25, SHOULD BE AFFIRMED, AS THAT CASE INVOLVES A STATE STATUTE WHICH
SIMPLY GIVES EACH COUNTY THE RIGHT TO ELECT ITS BOARD OF SUPERVISORS ON
AN AT-LARGE BASIS. 

IN WHITLEY V. WILLIAMS, NO. 36, HOWEVER, MISSISSIPPI'S NEW STATUTE
BOTH IMPOSES NEW QUALIFICATIONS ON INDEPENDENT VOTERS WHO WISH TO
NOMINATE A CANDIDATE BY PETITION AND ALTERS THE MANNER IN WHICH SUCH
NOMINATIONS ARE MADE.  /10/ SINCE THE VOTING RIGHTS ACT EXPLICITLY
COVERS "PRIMARY" ELECTIONS, SEE SEC. 14(C)(1), THE ONLY SIGNIFICANT
QUESTION PRESENTED IS WHETHER A PETITIONING PROCEDURE SHOULD BE
CONSIDERED A "PRIMARY" WITHIN THE MEANING OF THE ACT.  AS THE
NOMINATING PETITION IS THE FUNCTIONAL EQUIVALENT OF THE POLITICAL
PRIMARY, I CAN PERCEIVE NO GOOD REASON WHY IT SHOULD NOT BE INCLUDED
WITHIN THE AMBIT OF THE ACT. 

THE STATUTE INVOLVED IN BUNTON V. PATTERSON, NO. 26, RAISES A
SOMEWHAT MORE DIFFICULT PROBLEM OF STATUTORY INTERPRETATION.  IF ONE
LOOKS TO ITS IMPACT ON THE VOTERS, THE STATE'S LAW MAKING THE OFFICE OF
SCHOOL SUPERINTENDENT APPOINTIVE ENACTS A "VOTING QUALIFICATION" OF THE
MOST DRASTIC KIND.  WHILE UNDER THE OLD REGIME ALL REGISTERED VOTERS
COULD CAST A BALLOT, NOW NONE ARE QUALIFIED.  ON THE OTHER HAND, ONE
CAN ARGUE THAT THE CONCEPT OF A "VOTING QUALIFICATION" PRESUPPOSES THAT
THERE WILL BE A VOTE.  ON BALANCE, I WOULD HOLD THAT THE STATUE COMES
WITHIN SEC. 5.  CF. GOMILLION V. LIGHTFOOT, SUPRA.  SUCH A HOLDING
WOULD NOT, OF COURSE, DISABLE THE STATE FROM ADOPTING AN APPOINTIVE
SYSTEM AFTER THE FORCE OF SEC. 5 HAS SPENT ITSELF. 

FINALLY, VIRGINIA HAS QUITE OBVIOUSLY ALTERED THE MANNER IN WHICH AN
ELECTION IS CONDUCTED WHEN FOR THE FIRST TIME IT HAS BEEN OBLIGED TO
ISSUE REGULATIONS CONCERNING THE WAY IN WHICH ILLITERATE VOTERS SHALL
BE PROCESSED AT THE POLLS.  CONSEQUENTLY, I WOULD REVERSE THE LOWER
COURT'S DECISION IN THE ALLEN CASE, NO. 3. 

        II. 

AFTER STRAINING TO EXPAND THE SCOPE OF SEC. 5 BEYOND ITS PROPER
LIMITS, THE MAJORITY SURPRISINGLY REFUSES TO GRANT APPELLANTS IN THE
MISSISSIPPPI CASES /11/  THE ONLY RELIEF THAT WILL EFFECTIVELY
IMPLEMENT THE ACT'S PURPOSES.  AS THE COURT RECOGNIZES, ANTE, AT 572,
THE VOTING RIGHTS ACT ONLY APPLIES TO THE STATES FOR A LIMITED PERIOD
OF TIME-- MISSISSIPPI MAY FREE ITSELF FROM SEC. 5'S REQUIREMENTS IN
1970.  /12/  AND YET THE COURT AFFORDS APPELLANTS IN THE MISSISSIPPI
CASES ONLY DECLARATORY RELIEF, PERMITTING STATE OFFICIALS SELECTED IN
VIOLATION OF SEC. 5 TO HOLD OFFICE UNTIL THEIR FOUR-YEAR TERMS EXPIRE
IN 1971.  /13/  AN ELECTION FOR THESE OFFICES MAY NEVER BE HELD IN
COMPLIANCE WITH CONGRESS' COMMANDS.  AND OF COURSE, THE COURT'S
DECISION RESPECTING RELIEF DOES NOT ONLY CONTROL THESE PARTICULAR
CASES.  THERE MAY HAVE BEEN HUNDREDS OF OFFICIALS THROUGHOUT THE SOUTH
WHO BEGAN SERVING LONG TERMS IN OFFICE THIS NOVEMBER UNDER PROCEDURES
THAT HAVE NOT BEEN FEDERALLY APPROVED.  AS A RESULT OF THIS PART OF THE
COURT'S DECISION, THE VOTING RIGHTS ACT MAY NEVER PLAY THE FULL ROLE
THAT CONGRESS INTENDED FOR IT. 

IT SEEMS CLEAR TO ME THAT WE SHOULD ISSUE A CONDITIONAL INJUNCTION
IN THE MISSISSIPPI CASES ALONG THE LINES SUGGESTED BY THE SOLICITOR
GENERAL, EXCEPT OF COURSE IN THE FAIRLEY CASE WHICH I THINK SHOULD BE
AFFIRMED.  UNLESS MISSISSIPPI PROMPTLY SUBMITS ITS LAWS TO EITHER THE
ATTORNEY GENERAL OR THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA,
NEW ELECTIONS UNDER THE PRE-EXISTING LAW SHOULD BE ORDERED.  OF COURSE,
IF THE LAWS ARE PROMPTLY SUBMITTED FOR APPROVAL, A NEW ELECTION SHOULD
BE REQUIRED ONLY IF THE DISTRICT COURT DETERMINES THAT THE STATUTE IN
QUESTION IS DISCRIMINATORY EITHER IN ITS PURPOSE OR IN ITS EFFECT. 

/1/  I CONCUR IN THE COURT'S DISPOSITION OF THE COMPLEX
JURISDICTIONAL ISSUES THESE CASES PRESENT.  WHILE I CONSIDER THE
QUESTION WHETHER SEC. 5 AUTHORIZES A THREE-JUDGE COURT A CLOSE ONE, IT
IS CLEAR TO ME THAT WE WOULD NOT AVOID VERY MANY THREE-JUDGE COURTS
WHATEVER WE DECIDE.  I WOULD SUSPECT THAT GENERALLY A PLAINTIFF
ATTACKING A STATE STATUTE BECAUSE IT HAS NOT BEEN FEDERALLY APPROVED
UNDER SEC. 5 COULD ALSO MAKE AT LEAST A SUBSTANTIAL CONSTITUTIONAL
CLAIM THAT THE STATE STATUTE IS DISCRIMINATORY IN ITS PURPOSE OR
EFFECT.  CONSEQUENTLY, IN THE USUAL CASE A THREE-JUDGE COURT WOULD
ALWAYS BE CONVENED UNDER 28 U.S.C. 2281.  ONCE CONVENED, THE COURT
WOULD, OF COURSE, FIRST CONSIDER THE PLAINTIFF'S SEC. 5 ARGUMENT IN THE
NAME OF AVOIDING A CONSTITUTIONAL QUESTION.  THEREFORE, IT APPEARS TO
ME THAT THERE IS NO GOOD REASON TO INVOKE THE NORMAL RULE THAT THREE
JUDGE COURT STATUTES SHOULD BE CONSTRUED AS NARROWLY AS POSSIBLE.  AS
THE COURT SUGGESTS, THE MORE NATURAL READING OF THE STATUTE CONFERS
JURISDICTION ON THREE-JUDGE COURTS EVEN IN AN ACTION BROUGHT BY PRIVATE
PARTIES. 

/2/  SECTION 4(C) READS: 

"THE PHRASE 'TEST OR DEVICE' SHALL MEAN ANY REQUIREMENT THAT A
PERSON AS A PREREQUISITE FOR VOTING OR REGISTRATION FOR VOTING (1)
DEMONSTRATE THE ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY
MATTER, (2) DEMONSTRATE ANY EDUCATIONAL ACHIEVEMENT OR HIS KNOWLEDGE OF
ANY PARTICULAR SUBJECT, (3) POSSESS GOOD MORAL CHARACTER, OR (4) PROVE
HIS QUALIFICATIONS BY THE VOUCHER OF REGISTERED VOTERS OR MEMBERS OF
ANY OTHER CLASS." 

/3/  THE SOLICITOR GENERAL EXPRESSLY ADOPTS THIS CONSTRUCTION OF THE
STATUTE IN HIS SUPPLEMENTAL AMICUS BRIEF.  IN ANY EVENT, THE ACT IS
CLEAR:  SEC. 4(A) PERMITS A STATE TO FREE ITSELF FROM SEC. 4 BY PROVING
TO A DISTRICT COURT IN THE DISTRICT OF COLUMBIA THAT NO "TEST OR DEVICE
HAS BEEN USED DURING THE FIVE YEARS PRECEDING THE FILING OF THE ACTION
FOR THE PURPOSE OR WITH THE EFFECT OF DENYING OR ABRIDGING THE RIGHT TO
VOTE ON ACCOUNT OF RACE OR COLOR."  AS ALREADY NOTED, SEE N. 2, SUPRA,
THE PHRASE "TEST OR DEVICE" IS A TERM OF ART INCLUDING A CLASS OF
STATUTES MUCH NARROWER THAN THOSE INCLUDED UNDER SEC. 5.  HOWEVER,
SINCE SEC. 5 APPLIES BY ITS OWN TERMS ONLY TO "A STATE OR POLITICAL
SUBDIVISION WITH RESPECT TO WHICH THE PROHIBITIONS SET FORTH IN SECTION
4(A) ARE IN EFFECT," A STATE THAT ESCAPES FROM SEC. 4, ESCAPES FROM
SEC. 5 AS WELL, EVEN THOUGH IT HAS NOT COMPLIED WITH THAT SECTION. 

/4/  INDEED, I WOULD HAVE VERY SUBSTANTIAL CONSTITUTIONAL
DIFFICULTIES WITH THE STATUTE IF I WERE TO ACCEPT SUCH A CONSTRUCTION. 

/5/  SEE, E.G., SENATE HEARINGS, SUPRA, AT 35, 141; HEARINGS ON H.R.
6400 BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY,
89TH CONG., 1ST SESS., SER.  2, P. 102. 

/6/  WHEN, IN SEC. 10 OF THE ACT, CONGRESS MOVED AGAINST THE
IMPOSITION OF POLL TAXES, IT EXPRESSLY INVOKED THE FOURTEENTH AMENDMENT
AS PROVIDING AN ADDITIONAL BASIS FOR ITS ACTION IN THIS SPECIFIC AREA. 
SEE SEC. 10(B) 

/7/  THE COURT SEEKS TO STRENGTHEN ITS CASE BY LOOKING TO THE
LANGUAGE OF ONE OF THE DEFINITIONAL SECTIONS OF THE ACT.  ANTE, AT 565
566.  SECTION 14(C)(1) DEFINES THE TERM "VOTE" OR "VOTING" TO "INCLUDE
ALL ACTIONS NECESSARY TO MAKE A VOTE EFFECTIVE IN ANY PRIMARY, SPECIAL,
OR GENERAL ELECTION, INCLUDING, BUT NOT LIMITED TO, REGISTRATION,
LISTING PURSUANT TO THIS ACT, OR OTHER ACTION REQUIRED BY LAW
PREREQUISITE TO VOTING, CASTING A BALLOT, AND HAVING SUCH BALLOT
COUNTED PROPERLY AND INCLUDED IN THE APPROPRIATE TOTALS OF VOTES CAST
WITH RESPECT TO CANDIDATES FOR PUBLIC OR PARTY OFFICE AND PROPOSITIONS
FOR WHICH VOTES ARE RECEIVED IN AN ELECTION."  ALL OF THE ASPECTS OF
VOTING THAT ARE ENUMERATED IN THIS DEFINITION CONCERN THE PROCEDURES BY
WHICH VOTERS ARE PROCESSED.  WHEN THE STATUTE CAUTIONS THAT ITS
ENUMERATION OF STAGES IN THE ELECTION PROCESS IS NOT EXCLUSIVE, IT
MERELY INDICATES THAT THE CHANGE OF ANY OTHER PROCEDURE THAT PREVENTS
THE VOTER FROM HAVING HIS BALLOT FINALLY COUNTED IS ALSO INCLUDED
WITHIN THE RANGE OF THE ACT'S CONCERN.  SURELY THE COURT IS ENTIRELY
IGNORING THE TEXTUAL CONTEXT WHEN IT SEEKS TO READ THE ITALICIZED
PHRASES AS EMBRACING ALL ELECTORAL LAWS THAT AFFECT THE AMOUNT OF
POLITICAL POWER NEGROES WILL DERIVE FROM THE EXERCISE OF THE FRANCHISE,
EVEN WHEN THE WAY IN WHICH VOTERS ARE PROCESSED REMAINS UNCHANGED. 

/8/  THE EXAMPLES GIVEN BY THE ATTORNEY GENERAL CONCERNED CHANGES IN
A STATE'S VOTING AGE, RESIDENCE, OR PROPERTY REQUIREMENTS; CHANGES IN
THE FREQUENCY THAT REGISTRARS' OFFICES ARE OPEN; AND CHANGES FROM PAPER
BALLOTS TO MACHINES OR VICE VERSA.  SEE HOUSE HEARINGS, SUPRA, N. 5, AT
60-62, 95; SENATE HEARINGS, SUPRA, AT 191-192, 237. 

/9/  THE COURT EMPHASIZES THREE SPECIFIC COLLOQUIES IN WHICH MR.
KATZENBACH PARTICIPATED TO SUPPORT ITS UNDERSTANDING OF THE LEGISLATIVE
HISTORY.  IN THE MOST IMPORTANT ONE, SEE ANTE, AT 566-567, N. 31,
SENATOR FONG EXPRESSED CONCERN THAT SEC. 5, WHICH AT THAT TIME MERELY
REQUIRED FEDERAL REVIEW OF CHANGES IN STATE "PROCEDURES," WOULD NOT
ENCOMPASS A STATE REGULATION WHICH WOULD RADICALLY LIMIT THE HOURS
DURING WHICH NEW VOTERS COULD REGISTER.  THE ATTORNEY GENERAL AGREED
THAT THE STATUTE SHOULD BE ELABORATED TO MORE CLEARLY INCLUDE SUCH A
CHANGE.  SINCE SUCH A LAW ALTERS THE MANNER IN WHICH VOTERS ARE
PROCESSED, I FAIL TO SEE HOW THIS COLLOQUY UNDERMINES MY CONSTRUCTION
OF THE SECTION-- WHICH CLEARLY REQUIRES FEDERAL REVIEW IN CASES OF THE
SORT MR. KATZENBACH AND SENATOR FONG WERE DISCUSSING.  SIMILARLY, A
SECOND EXTRACT HIGHLIGHTED BY THE COURT, ANTE, AT 567-568, IS ONE IN
WHICH THE ATTORNEY GENERAL EMPHASIZES THAT SEC. 5 IS INTENDED TO
PREVENT THE STATES FROM EVADING THE REQUIREMENTS OF SEC. 4-- A POINT I
BELIEVE TO COUNT STRONGLY IN FAVOR OF THE INTERPRETAITON I DEEM THE
CORRECT ONE.  FINALLY, IT IS QUITE TRUE THAT THE ATTORNEY GENERAL
OPPOSED CARRYING OUT EXCEPTIONS FROM SEC. 5 THAT WOULD PERMIT THE STATE
TO SWITCH FROM PAPER BALLOTS TO VOTING MACHINES WITHOUT FEDERAL
APPROVAL.  SEE ANTE, AT 568.  BUT THIS FACT HARDLY INDICATES THAT HE OR
ANYONE ELSE WAS OF THE OPINION THAT THE SECTION REQUIRED REVIEW OF
STATUTES THAT DID NOT CONCERN THEMSELVES WITH VOTING PROCEDURES.  IN
FACT, ON THE ONE OCCASION THAT MR. KATZENBACH DISCUSSED THE
REAPPORTIONMENT CASES IN CONNECTION WITH SEC. 5, HE INDICATED NO
AWARENESS WHATEVER THAT SEC. 5 COULD BE CONSTRUED TO APPLY TO CASES
INVOLVING LAWS THAT CHANGE THE VOTING POWER OF VARIOUS GROUPS.  SEE
HOUSE HEARINGS, SUPRA, AT 93-94. 

/10/  THE STATUTE REQUIRES SUPPORTERS OF A CANDIDATE TO WRITE THEIR
OWN NAMES ON THE NOMINATING PETITION, TOGETHER WITH THEIR POLLING
DISTRICT.  MOREOVER, PETITIONS MUST BE FILED BY AN EARLIER DATE AND
MUST CONTAIN MANY MORE SIGNATURES.  THE ACT ALSO IMPOSES A "VOTING
QUALIFICATION" ON THOSE WHO WISH TO VOTE IN A PARTY PRIMARY, BY
PROVIDING THAT THEY MAY NOT SUBSEQUENTLY COMPETE WITH THE PRIMARY
VICTOR BY RUNNING AS AN INDEPENDENT CANDIDATE. 

/11/  IN THE ALLEN CASE, COMING FROM VIRGINIA, THE TERM OF THE
CONGRESSMAN WHO GAINED HIS SEAT UNDER PROCEDURES THAT HAVE NOT BEEN
APPROVED UNDER SEC. 5 HAS ALREADY EXPIRED.  CONSEQUENTLY, ONLY A GRANT
OF DECLARATORY RELIEF IS APPROPRIATE IN THIS CASE, AS THE APPELLANTS
THEMSELVES RECOGNIZE. 

/12/  SINCE THE VOTING RIGHTS ACT BECAME EFFECTIVE IN MISSISSIPPI IN
AUGUST 1965, THE STATE WILL BE ABLE TO ESCAPE THE REQUIREMENTS OF SEC.
5 IN 1970 BY PROVING THAT IT HAS NOT IMPOSED A "TEST OR DEVICE" IN
VIOLATION OF SEC. 4 FOR A FIVE-YEAR PERIOD.  SEE TEXT, AT N. 3, SUPRA.
FOUND TO HAVE CONTINUED IMPOSING "TESTS OR DEVICES" AFTER 1965.  THE
COURT'S DECISION TODAY, HOWEVER, DOES NOT CONSIDER WHETHER ANY OF THE
STATUTES INVOLVED IN THESE CASES IMPOSE A "TEST" OR "DEVICE" WITHIN THE
MEANING OF SEC. 4, SEE N. 2, SUPRA.  IT SIMPLY HOLDS THAT THE STATUTES
FALL INTO THE MUCH BROADER CLASS OF LAWS THAT MODIFY A "STANDARD,
PRACTICE, OR PROCEOURE WITH RESPECT TO VOTING" UNDER SEC. 5. 

/13/ THE STATE SENATOR, STATE REPRESENTATIVE, COUNTY SUPERVISOR,
JUSTICE OF THE PEACE, AND CONSTABLE INVOLVED IN WHITLEY V. WILLIAMS,
NO. 36, WERE ALL ELECTED FOR FOUR-YEAR TERMS ENDING IN 1971.  SEE
MISSISSIPPI CODE SEC. 3238 (1942).  SIMILARLY, THE AFFECTED COUNTY
SUPERINTENDENTS OF EDUCATION IN BUNTON V. PATTERSON, NO. 26, WERE
APPOINTED TO FOUR-YEAR TERMS, EXPIRING IN 1971. 

WHILE I WOULD AFFIRM IN FAIRLEY V. PATTERSON, NO. 25, THE INCUMBENTS
IN THAT CASE ALSO WILL SERVE UNTIL 1971. 

MR. JUSTICE MARSHALL, WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING AND
DISSENTING. 

I JOIN PARTS I THROUGH V OF THE COURT'S OPINION.  HOWEVER, LARGELY
FOR THE REASONS STATED IN PART II OF MY BROTHER HARLAN'S OPINION, I
BELIEVE THE RELIEF SUGGESTED BY THE SOLICITOR GENERAL SHOULD BE ORDERED
IN THE MISSISSIPPI CASES.  ACCORDINGLY, I DISSENT FROM PART IV OF THE
COURT'S OPINION. 

MR. JUSTICE BLACK, DISSENTING.     ASSUMING THE VALIDITY OF THE
VOTING RIGHTS ACT OF 1965, AS THE COURT DOES, I WOULD AGREE WITH ITS
CAREFUL INTERPRETATION OF THE ACT, AND WOULD FURTHER AGREE WITH ITS
HOLDINGS AS TO JURISDICTION AND WITH ITS DISPOSITION OF THE FOUR CASES
NOW BEFORE US.  BUT I AM STILL OF THE OPINION THAT FOR REASONS STATED
IN MY SEPARATE OPINION IN SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301,
355-362 (1966), A PART OF SEC. 5 VIOLATES THE UNITED STATES
CONSTITUTION.  SECTION 5 PROVIDES THAT SEVERAL SOUTHERN STATES CANNOT
EFFECTIVELY AMEND EITHER THEIR CONSTITUTIONS OR LAWS RELATING TO VOTING
WITHOUT PERSUADING THE UNITED STATES ATTORNEY GENERAL OR THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THAT THE PROPOSED
CHANGES IN STATE LAWS DO NOT HAVE THE PURPOSE AND WILL NOT HAVE THE
EFFECT OF DENYING TO CITIZENS THE RIGHT TO VOTE ON ACCOUNT OF RACE OR
COLOR.  THIS IS REMINISCENT OF OLD RECONSTRUCTION DAYS WHEN SOLDIERS
CONTROLLED THE SOUTH AND WHEN THOSE STATES WERE COMPELLED TO MAKE
REPORTS TO MILITARY COMMANDERS OF WHAT THEY DID.  THE SOUTHERN STATES
WERE AT THAT TIME DEPRIVED OF THEIR RIGHT TO PASS LAWS ON THE PREMISE
THAT THEY WERE NOT THEN A PART OF THE UNION AND THEREFORE COULD BE
TREATED WITH ALL THE HARSHNESS METED OUT TO CONQUERED PROVINCES.  THE
CONSTITUTIONALITY OF THAT DOCTRINE WAS CERTAINLY NOT CLEAR AT THAT
TIME.  AND WHETHER THE DOCTRINE WAS CONSTITUTIONAL OR NOT, I HAD
THOUGHT THAT THE WHOLE NATION HAD LONG SINCE REPENTED OF THE
APPLICATION OF THIS "CONQUERED PROVINE" CONCEPT, EVEN AS TO THE TIME
IMMEDIATELY FOLLOWING THE BITTER CIVIL WAR.  I DOUBT THAT ANY OF THE 13
COLONIES WOULD HAVE AGREED TO OUR CONSTITUTION IF THEY HAD DREAMED THAT
THE TIME MIGHT COME WHEN THEY WOULD HAVE TO GO TO A UNITED STATES
ATTORNEY GENERAL OR A DISTRICT OF COLUMBIA COURT WITH HAT IN HAND
BEGGING FOR PERMISSION TO CHANGE THEIR LAWS.  STILL LESS WOULD ANY OF
THESE COLONIES HAVE BEEN WILLING TO AGREE TO A CONSTITUTION THAT GAVE
THE FEDERAL GOVERNMENT POWER TO FORCE ONE COLONY TO GO THROUGH SUCH AN
ONEROUS PROCEDURE WHILE ALL THE OTHER FORMER COLONIES, NOW SUPPOSEDLY
ITS SISTER STATES, WERE ALLOWED TO RETAIN THEIR FULL SOVEREIGNTY. 
WHILE MARBURY V. MADISON, 1 CRANCH 137 (1803), HELD THAT COURTS CAN
PASS ON THE CONSTITUTIONALITY OF STATE LAWS ALREADY ENACTED, IT
CERTAINLY DID NOT DECIDE TO PERMIT FEDERAL COURTS OR FEDERAL EXECUTIVE
OFFICERS TO HOLD UP THE PASSAGE OF STATE LAWS UNTIL FEDERAL COURTS OR
FEDERAL AGENCIES IN WASHINGTON COULD PASS ON THEM.  PROPOSALS TO GIVE
JUDGES A PART IN ENACTING OR VETOING LEGISLATION BEFORE IT PASSED WERE
MADE AND REJECTED IN THE CONSTITUTIONAL CONVENTION; ANOTHER PROPOSAL
WAS MADE AND REJECTED TO PERMIT THE CHIEF JUSTICE OF THIS COURT "FROM
TIME TO TIME (TO) RECOMMEND SUCH ALTERATIONS OF AND ADDITIONS TO THE
LAWS OF THE U.S. AS MAY IN HIS OPINION BE NECESSARY TO THE DUE
ADMINISTRATION OF JUSTICE, AND SUCH AS MAY PROMOTE USEFUL LEARNING AND
INCULCATE SOUND MORALITY THROUGHOUT THE UNION.  . . . "  SEE MY
DISSENTING OPINION IN GRISWOLD V. CONNECTICUT, 381 U.S. 479, 515, N. 6
(1965). 

IT SEEMS TO ME IT WOULD BE WISE FOR US TO PAUSE NOW AND THEN AND
REFLECT ON THE FACT THAT THE SEPARATE COLONIES WERE PASSING LAWS IN
THEIR LEGISLATIVE BODIES BEFORE THEY THEMSELVES CREATED THIS UNION,
THAT HISTORY EMPHATICALLY PROVES THAT IN CREATING THE UNION THE
COLONIES INTENDED TO RETAIN THEIR ORIGINAL INDEPENDENT POWER TO PASS
LAWS, AND THAT NO JUSTIFICATION CAN PROPERLY BE FOUND IN THE
CONSTITUTION THEY CREATED OR IN ANY AMENDMENT TO IT FOR DEGRADING THESE
STATES TO THE EXTENT THAT THEY CANNOT EVEN INITIATE AN AMENDMENT TO
THEIR CONSTITUTIONS OR THEIR LAWS WITHOUT FIRST ASKING THE PERMISSION
OF A FEDERAL COURT IN THE DISTRICT OF COLUMBIA OR A UNITED STATES
GOVERNMENTAL AGENCY.  I WOULD HOLD SEC. 5 OF THE 1965 VOTING RIGHTS ACT
UNCONSTITUTIONAL INSOFAR AS IT COMMANDS CERTAIN SELECTED STATES TO
LEAVE THEIR LAWS IN ANY FIELD UNCHANGED UNTIL THEY GET THE CONSENT OF
FEDERAL AGENCIES TO PASS NEW ONES. 

NORMAN C. AMAKER ARGUED THE CAUSE FOR APPELLANTS IN NO. 3.  WITH HIM
ON THE BRIEF WERE JACK GREENBERG, JAMES M. NABRIT III, OLIVER W. HILL,
S. W. TUCKER, HENRY L. MARCH III, AND ANTHONY G. AMSTERDAM.  ARMAND
DERFNER AND ELLIOTT C. LICHTMAN ARGUED THE CAUSE FOR APPELLANTS IN NOS.
25, 26 AND 36.  LAWRENCE ASCHENBRENNER WAS ON THE BRIEF FOR APPELLANTS
IN NOS. 25 AND 26.  WITH MR. DERFNER ON THE BRIEF FOR APPELLANTS IN NO.
36 WERE ALVIN J. BRONSTEIN AND RICHARD B. SOBOL. 

R. D. MCILWAINE III, FIRST ASSISTANT ATTORNEY GENERAL OF VIRGINIA,
ARGUED THE CAUSE FOR APPELLEES IN NO. 3.  WITH HIM ON THE BRIEF WERE
ROBERT Y. BUTTON, ATTORNEY GENERAL, WILLIAM R. BLANDFORD, AND WILLIAM
C. CARTER.  WILLIAM A. ALLAIN AND WILL S. WELLS, ASSISTANT ATTORNEYS
GENERAL OF MISSISSIPPI, ARGUED THE CAUSE FOR APPELLEES IN NOS. 25, 26
AND 36.  WITH MR. ALLAIN ON THE BRIEF FOR APPELLEES IN NO. 25 WERE JOE
T. PATTERSON, ATTORNEY GENERAL, AND DUDLEY W. CONNER.  WITH MR. WELLS
ON THE BRIEFS FOR APPELLEES IN NOS. 26 AND 36 WERE MR. PATTERSON. 

ASSISTANT ATTORNEY GENERAL POLLAK ARGUED THE CAUSE FOR THE UNITED
STATES, AS AMICUS CURIAE, URGING REVERSAL IN NOS. 25, 26 AND 36.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, LOUIS F. CLAIBORNE,
FRANCIS X. BEYTAGH, JR., AND NATHAN LEWIN.  1961 AND 1966 BY APPELLEE
ASSOCIATION.  THE PHOSPHATE WAS SUPPLIED BY THE ASSOCIATION'S
..END :


















TEXAS BOUNDARY CASE, 394 U.S. 1 


       UNITED STATES V. LOUISIANA ET AL. (TEXAS BOUNDARY CASE). 

        ON CROSS-MOTIONS FOR THE ENTRY OF SUPPLEMENTAL DECREE AS TO

           THE STATE OF TEXAS. 

 NO. 9, ORIG.  ARGUED NOVEMBER 18, 1968.-- DECIDED MARCH 3,

           1969. 


BOUNDARY OF SUBMERGED LANDS GRANTED BY THE ACT TO NOT MORE THAN THREE
MARINE LEAGUES FROM THE "COAST LINE," WHICH TEXAS CONTENDS REFERS TO
THE COASTLINE AS IT EXISTED IN 1845, WHEN TEXAS ENTERED THE UNION. 
HELD:  THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE,
WHOSE DEFINITIONS HAVE BEEN ADOPTED BY THE COURT FOR PURPOSES OF THE
SUBMERGED LANDS ACT (UNITED STATES V. CALIFORNIA, 381 U.S. 139) DEFINES
"COAST LINE" AS THE MODERN, AMBULATORY COASTLINE RESULTING FROM EROSION
AND ACCRETION, AND IT IS FROM THAT LINE THAT TEXAS' GULFWARD BOUNDARY
MUST BE MEASURED.  PP. 2-6. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING IS A SEQUEL TO LAST TERM'S UNITED STATES V. LOUISIANA
389 U.S 155 (1967), IN WHICH WE HELD THAT THE THREE-LEAGUE (NINE-MILE)
BELT OF SUBMERGED LANDS BENEATH THE GULF OF MEXICO GRANTED TO TEXAS BY
THE SUBMERGED LANDS ACT OF 1953 /1/  WAS NOT TO BE MEASURED FROM THE
EDGE OF ARTIFICIAL JETTIES BUILT IN THE GULF BY TEXAS SINCE 1845 BUT
FROM TEXAS' COASTLINE AS IT EXISTED IN 1845 WHEN TEXAS WAS ADMITTED TO
THE UNION.  THE CARTOGRAPHIC WORK REQUIRED TO DEFINE THE 1845 COASTLINE
AND THE GULFWARD BOUNDARY THREE LEAGUES DISTANT HAS BEEN COMPLETED, AND
THE UNITED STATES AND TEXAS HAVE AGREED UPON THEIR LOCATIONS.  /2/
HOWEVER, THE 1845 COASTLINE HAS BEEN SUBSTANTIALLY MODIFIED BY
EXTENSIVE EROSION AND SOME ACCRETION IN THE INTERVENING PERIOD OF MORE
THAN A CENTURY.  THIS MODIFICATION HAS OCCASIONED A DISPUTE BETWEEN THE
UNITED STATES AND TEXAS AS TO WHETHER THE ACT'S EXPRESS LIMITATION IN
SEC. 2(B), THAT IN NO EVENT SHALL THE BOUNDARIES OF THE GRANT OF
SUBMERGED LANDS "BE INTERPRETED AS EXTENDING FROM THE COAST LINE . . .
MORE THAN THREE MARINE LEAGUES INTO THE GULF OF MEXICO," IS TO BE READ
AS MEASURING FROM THE 1845 COASTLINE, AS TEXAS CONTENDS, OR FROM THE
COASTLINE AS IT EXISTS CURRENTLY OR AT ANY TIME IN THE FUTURE, AS THE
UNITED STATES CONTENDS.  /3/  IF THE LIMITATION IS READ AS MEASURING
FROM THE MODERN, AMBULATORY COASTLINE, TEXAS CLAIMS THAT IT WOULD BE
DENIED SUBSTANTIAL SUBMERGED ACREAGE AS A RESULT OF POST-1845 EROSION. 
/4/  WE ORDERED ORAL ARGUMENT.  393 U.S. 811 (1968).  WE AGREE WITH THE
UNITED STATES THAT THE TERM "COAST LINE" MEANS THE MODERN, AMBULATORY
COASTLINE. 

THE TERM "COAST LINE" ALSO APPEARS IN SEC. 4 OF THE SUBMERGED LANDS
ACT.  SECTION 4 APPROVES A SEAWARD BOUNDARY THREE MILES DISTANT FROM
THE "COAST LINE" OF EACH COASTAL STATE, EXCEPT THAT IF A STATE CAN SHOW
THAT ITS BOUNDARY AS IT EXISTED AT THE TIME OF ENTRY INTO THE UNION OR
AS APPROVED BY CONGRESS EXTENDED INTO THE GULF OF MEXICO MORE THAN
THREE MILES FROM THE COASTLINE, THAT STATE IS ENTITLED TO CLAIM THE
SUBMERGED LANDS WITHIN SUCH BOUNDARY, SUBJECT HOWEVER TO THE EXPRESS
LIMITATION OF SEC. 2(B).  SEE SECS. 2 AND 4, 67 STAT. 29, 31, 43 U.S.C.
1301, 1312; UNITED STATES V. LOUISIANA, 363 U.S. 1 (1960). 

THE ARGUMENT OF THE UNITED STATES THAT "COAST LINE" MEANS THE MODERN
AMBULATORY COASTLINE IS BASED ON OUR DECISION IN UNITED STATES V.
CALIFORNIA, 381 U.S. 139 (1965).  THE ISSUE THERE WAS WHETHER
PARTICULAR BODIES OF WATER ON THE CALIFORNIA COAST WERE "INLAND WATERS"
WITHIN THE MEANING OF SEC. 2(C) WHICH PROVIDES THAT "(THE TERM 'COAST
LINE' MEANS THE LINE . . . MARKING THE SEAWARD LIMIT OF INLAND
WATERS."  WE HELD THAT THE LEGISLATIVE HISTORY SHOWED THAT CONGRESS
INTENDED THAT THE COURTS SHOULD DEFINE THE TERM "INLAND WATERS."  IN
DISCHARGING THAT ASSIGNMENT WE CONCLUDED THAT THE CONVENTION ON THE
TERRITORIAL SEA AND THE CONTIGUOUS ZONE /5/  PROVIDED "THE BEST AND
MOST WORKABLE DEFINITIONS AVAILABLE."  ACCORDINGLY, WE ADOPTED THOSE
DEFINITIONS FOR PURPOSES OF THE SUBMERGED LANDS ACT.  381 U.S.,AT 165. 
THE CONVENTION DEFINES "COAST LINE" AS THE MODERN, AMBULATORY
COASTLINE; THE DECREE ENTERED SEVERAL MONTHS LATER IN ACCORDANCE WITH
OUR OPINION IN CALIFORNIA EXPRESSLY PROVIDES THAT "(THE COAST LINE IS
TO BE TAKEN AS HERETOFORE OR HEREAFTER MODIFIED BY NATURAL OR
ARTIFICIAL MEANS . . . ."  382 U.S. 448, 449 (1966). 

WE SAID FURTHER IN CALIFORNIA THAT "(THIS (ADOPTION OF THE
CONVENTION'S DEFINITIONS) ESTABLISHES A SINGLE COASTLINE FOR . . . THE
ADMINISTRATION OF THE SUBMERGED LANDS ACT . . . ."  381 U.S.,AT 165. 
OUR CONCLUSION IN THIS CASE THAT "COAST LINE" MEANS THE MODERN,
AMBULATORY COASTLINE THEREFORE NECESSARILY FOLLOWS FROM OUR DECISION IN
CALIFORNIA.  SEE UNITED STATES V. LOUISIANA, SUPRA, 389 U.S.,AT 162, N.
2 (STEWART, J., CONCURRING IN RESULT).  THERE IS NO BASIS FOR A FINDING
THAT "COAST LINE" HAS A DIFFERENT MEANING FOR THE PURPOSE OF
DETERMINING THE BASELINE FOR MEASUREMENT OF THE THREE-LEAGUE MAXIMUM
LIMITATION.  NOTHING ON THE FACE OF THE ACT OR IN ITS LEGISLATIVE
HISTORY SUPPORTS A DIFFERENT MEANING.  /6/  RATHER IT SEEMS EVIDENT
THAT CONGRESS MEANT THAT THE SAME "COAST LINE" SHOULD BE THE BASELINE
OF BOTH THE THREE-MILE GRANT AND THE THREE-LEAGUE LIMITATION.  TEXAS
SUGGESTS NO GROUND FOR A DISTINCTION, BUT ARGUES THAT MEASUREMENT FROM
THE MODERN, AMBULATORY COASTLINE WOULD PRODUCE AN INEQUITABLE RESULT
AND WORK HAVOC WITH ORDERLY MINERAL DEVELOPMENT.  IT IS TRUE THAT LAST
TERM'S DECISION THAT THE THREE-LEAGUE BELT SHOULD BE MEASURED FROM THE
1845 COASTLINE AND NOT FROM THE EDGE OF SUBSEQUENTLY CONSTRUCTED
ARTIFICIAL JETTIES DEPRIVED TEXAS OF THE BENEFIT OF POST-1845
ACCRETION.  IT IS ALSO TRUE THAT THE USE OF THE MODERN, AMBULATORY
COASTLINE AS THE BASELINE FROM WHICH THE LIMITATION IS MEASURED WILL
PENALIZE TEXAS FOR POST-1845 EROSION AND MAY PRESENT PRACTICAL
DIFFICULTIES FOR MINERAL LESSEES.  BUT ANY ALLEGED INEQUITABLE RESULTS,
AS WELL AS ANY ALLEGED DETRIMENT TO ORDERLY MINERAL DEVELOPMENT, DERIVE
FROM A CONSISTENT READING OF THE SCHEME CONGRESS FASHIONED; THUS TEXAS
MUST LOOK TO CONGRESS FOR RELIEF. 

SINCE THE PARTIES HAVE AGREED THAT THE DECREE PROPOSED BY THE UNITED
STATES SHOULD BE ENTERED IF ITS VIEW ON THE DISPUTED POINT IS
SUSTAINED, WE DIRECT THE ENTRY OF THE SUPPLEMENTAL DECREE PROPOSED BY
THE UNITED STATES.  /7/

              IT IS SO ORDERED. 

THE CHIEF JUSTICE AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

(FOR SUPPLEMENTAL DECREE ENTERED IN THIS CASE, SEE POST, P. 836.) 

/1/  67 STAT. 29, 43 U.S.C. 1301-1315.  IN UNITED STATES V.
LOUISIANA, 363 U.S. 1, 84 (1960), WE HELD THAT THE ACT ENTITLED TEXAS,
AS AGAINST THE UNITED STATES, TO THE SUBMERGED LANDS UNDERLAYING THE
GULF OF MEXICO TO A DISTANCE OF THREE MARINE LEAGUES FROM THE
TEXAS'"COAST LINE."  WE EXPRESSLY RESERVED THE QUESTION OF WHAT IS THE
"COAST LINE" FROM WHICH TO MEASURE THIS THREE-LEAGUE GRANT.  363
U.S.,AT 79.  SEE ALSO 389 U.S.,AT 156-157 AND N. 1. 

/2/  A STIPULATION FILED WITH THE COURT IDENTIFIES TEXAS' 1845/1849
COASTLINE AND ALSO ITS GULFWARD BOUNDARY THREE LEAGUES DISTANT.  AN ACT
OF NOVEMBER 24, 1849, LAWS, 3D TEX. LEG., C. 2, P. 4, ADOPTED WITH THE
CONSENT OF CONGRESS, ACT OF JULY 5, 1848, 9 STAT. 245, EXTENDED TEXAS'
BOUNDARY OPPOSITE SABINE PASS.  THE UNITED STATES HAS ACCEPTED TEXAS'
THREE-LEAGUE BOUNDARY AS IT EXISTED WHEN THE STATE CAME INTO THE UNION
IN 1845, BUT AS ONE APPROVED BY CONGRESS BEFORE PASSAGE OF THE
SUBMERGED LANDS ACT, AND AS SUCH EQUALLY ENTITLED TO RECOGNITION UNDER
SEC. 2(B).  THE LINE IDENTIFIED IN THE STIPULATION AS THE LINE TO BE
RECOGNIZED AS TEXAS' HISTORIC OFFSHORE BOUNDARY INCLUDES THE 1849
EXTENSION, BUT THE UNITED STATES RESERVES THE EFFECTIVENESS OF THAT
EXTENSION AS AGAINST OTHER CLAIMS, FOR EXAMPLE, ANY THAT MIGHT BE
ASSERTED BY LOUISIANA.  SEE MEMORANDUM OF UNITED STATES 16-18. 

/3/ SECTION 2, 43 U.S.C. 1301, SO FAR AS RELEVANT HERE, IS AS
FOLLOWS: 

"(A) THE TERM 'LANDS BENEATH NAVIGABLE WATERS' MEANS--

        .          .          .          . 

"(2) ALL LANDS PERMANENTLY OR PERIODICALLY COVERED BY TIDAL WATERS
UP TO BUT NOT ABOVE THE LINE OF MEAN HIGH TIDE AND SEAWARD TO A LINE
THREE GEOGRAPHICAL MILES DISTANT FROM THE COAST LINE OF EACH SUCH STATE
AND TO THE BOUNDARY LINE OF EACH SUCH STATE WHERE IN ANY CASE SUCH
BOUNDARY AS IT EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE
UNION, OR AS HERETOFORE APPROVED BY CONGRESS, EXTENDS SEAWARD (OR INTO
THE GULF OF MEXICO) BEYOND THREE GEOGRAPHICAL MILES,

        .          .          .  . 

"(B) THE TERM 'BOUNDARIES' INCLUDES THE SEAWARD BOUNDARIES OF A
STATE OR ITS BOUNDARIES IN THE GULF OF MEXICO OR ANY OF THE GREAT LAKES
AS THEY EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE UNION, OR
AS HERETOFORE APPROVED BY THE CONGRESS, OR AS EXTENDED OR CONFIRMED
PURSUANT TO SECTION 4 HEREOF BUT IN NO EVENT SHALL THE TERM
'BOUNDARIES' OR THE TERM 'LANDS BENEATH NAVIGABLE WATERS' BE
INTERPRETED AS EXTENDING FROM THE COAST LINE MORE THAN THREE
GEOGRAPHICAL MILES INTO THE ATLANTIC OCEAN OR THE PACIFIC OCEAN, OR
MORE THAN THREE MARINE LEAGUES INTO THE GULF OF MEXICO; 

"(C) THE TERM 'COAST LINE' MEANS THE LINE OF ORDINARY LOW WATER
ALONG THAT PORTION OF THE COAST WHICH IS IN DIRECT CONTACT WITH THE
OPEN SEA AND THE LINE MARKING THE SEAWARD LIMIT OF INLAND WATERS." 

/4/  IT WAS REPRESENTED ON ORAL ARGUMENT THAT BETWEEN 17,000 AND
35,000 ACRES WOULD BE LOST TO TEXAS AS A RESULT OF SUCH EROSION. 

/5/  (1964) 15 U.S.T.(PT. 2) 1607, T.I.A.S. NO. 5639. 

/6/  OUR DECISION IN CALIFORNIA ALSO FORECLOSES ANY ARGUMENT THAT
THE TERM "COAST LINE" MEANS THE COASTLINE AS IT EXISTED AT THE DATE OF
PASSAGE OF THE SUBMERGED LANDS ACT. 

MR. JUSTICE BLACK, DISSENTING. 

I WOULD DECIDE THIS CASE IN FAVOR OF TEXAS.  IT IS ANOTHER OF A LONG
CONTINUED AND APPARENTLY NEVER-ENDING SERIES OF LAWSUITS BETWEEN THE
UNITED STATES AND TEXAS, TRYING TO SETTLE THE LOCATION OF THE
BOUNDARIES OF LANDS SUBMERGED UNDER OCEAN AND GULF WATERS THAT
CONGRESS, IN 1953, VALIDLY CONVEYED TO THE STATES IN THE SUBMERGED
LANDS ACT.  /1/  THE DISPUTE IS A NARROW ONE.  THIS COURT HELD IN
UNITED STATES V. LOUISIANA, 363 U.S. 1 (1960), THAT THE UNITED STATES
HAD IN THE SUBMERGED LANDS ACT CONVEYED TO TEXAS SUBMERGED LANDS OUT
INTO THE GULF FOR A DISTANCE OF THREE LEAGUES, ABOUT NINE MILES, FROM
THE STATE'S COASTLINE.  AND WE HELD IN UNITED STATES V. LOUISIANA
(TEXAS BOUNDARIES), 389 U.S. 155, 161 (1967), THAT "THE CONGRESSIONAL
GRANT TO TEXAS OF THREE MARINE LEAGUES OF SUBMERGED LAND IS MEASURED BY
THE HISTORICAL STATE BOUNDARIES 'AS THEY EXISTED' IN 1845 WHEN TEXAS
WAS ADMITTED INTO THE UNION."  THAT CASE, HOWEVER, DID NOT ATTEMPT TO
IDENTIFY WITH PRECISION WHERE THE COASTLINE WAS LOCATED, BUT THAT
QUESTION IS NO LONGER IN DISPUTE FOR HERE THE PARTIES HAVE STIPULATED
THE LOCATION OF THE SEAWARD BOUNDARY OF TEXAS WHEN IT WAS ADMITTED INTO
THE UNION.  IN THAT SAME CASE WE REJECTED ARGUMENTS THAT WE SHOULD
FOLLOW THE SECOND CALIFORNIA CASE, UNITED STATES V. CALIFORNIA, 381
U.S. 139 (1965), IN HOLDING THAT A DISPUTE OVER THE STATE AND NATIONAL
SUBMERGED BOUNDARY LINE SHOULD BE DECIDED BY INTERNATIONAL LAW AND
TREATIES.  IN DECLINING TO APPLY THE SAME TREATY IN THE UNITED STATES
AND TEXAS DISPUTE, WE SAID, "THIS IS A DOMESTIC DISPUTE WHICH MUST BE
GOVERNED BY THE CONGRESSIONAL GRANT," 389 U.S.,AT 161, AND THEREBY
REJECTED THE IDEA THAT THE QUESTION WAS CONTROLLED BY INTERNATIONAL LAW
OR TREATY.  OBVIOUSLY, THE SAME PRINCIPLE EQUALLY APPLIES HERE, IN THIS
FURTHER PHASE OF THE VERY SAME SUBMERGED LAND DISPUTE.  NO ONE OF THE
INTERNATIONAL FAMILY OF NATIONS IS GREATLY INTERESTED AND CERTAINLY
NONE CAN CONTROL THE WAY IN WHICH ANOTHER NATION DIVIDES ITSELF INTO
SUBORDINATE GOVERNMENTAL UNITS FOR CONTROL OF THAT COUNTRY'S OWN INLAND
WATERS.  THAT IS A PROBLEM FOR EACH NATION TO DECIDE FOR ITSELF. 

MOREOVER, I POINTED OUT IN MY DISSENT TO THE COURT'S HOLDING ON THE
COUNTER MOTIONS IN THE LOUISIANA BOUNDARY CASE, DECIDED TODAY, REASONS
WHY THE SECOND CALIFORNIA CASE SHOULD NOT BE HELD TO ESTABLISH A
UNIFORM RULE FOR DECIDING ALL CONTROVERSIES CONCERNING DISPUTED
QUESTIONS OF SUBMERGED LAND BOUNDARIES ARISING OUT OF THE SUBMERGED
LANDS ACT.  POST, P. 78.  THIS CASE NOW BEFORE US CONCERNING THE TEXAS
BOUNDARY AGAIN REFUTES ANY IDEA THAT APPLYING TREATIES AND
INTERNATIONAL LAW TO SETTLE SUCH LOCAL DISPUTES BETWEEN THE FEDERAL
GOVERNMENT AND A STATE WILL BRING ABOUT STABILITY, CERTAINTY, OR
EXPEDITION IN CARRYING OUT THE WILL OF CONGRESS.  FOR HERE WE ARE TOLD
THAT EVEN IF THE UNITED STATES WINS, IT WILL PROBABLY TAKE A VERY LONG
TIME TO DECIDE THIS CONTROVERSY UNDER THE COMPLEXITIES OF MEASUREMENT
NECESSARY IN ACCORDANCE WITH THE INTERNATIONAL TREATY RULES.  /2/  WE
ARE WARNED ALSO THAT ANOTHER BOUNDARY LAWSUIT BETWEEN STATE AND NATION
IS ALREADY BREWING WITH A SECOND JUST AROUND THE CORNER FROM IT.
CONSOLATION IS ALSO OFFERED BECAUSE WE ARE TOLD THAT WE CAN CONTINUE IN
CASE AFTER CASE TO KEEP OUR DECREES OPEN FOR FUTURE LAWSUITS.  ALL OF
THIS GOES TO EMPHASIZE TO ME THAT IT HAS BEEN A MISTAKE FOR THIS COURT
TO ADVANCE THE VIEW THAT THESE LAND BOUNDARIES SHOULD BE SETTLED BY
COURTS.  OBVIOUSLY, THE BEST WAY TO SETTLE A BOUNDARY DISPUTE, WHETHER
WATER OR LAND, IS TO DESIGNATE A GOVERNMENTAL AGENCY THAT CAN UNDERTAKE
THE COMPLEX PROBLEM OF DETERMINING AND MARKING WHERE THE INLAND AND
TERRITORIAL WATERS MEET.  AS I HAVE POINTED OUT IN MY DISSENT IN THE
LOUISIANA BOUNDARY CASE, DECIDED TODAY, CONGRESS IN 1895 PASSED AN ACT
SPECIFICALLY CHARGING A COMPETENT GOVERNMENT DEPARTMENT TO CONSIDER AND
MARK SUCH A LINE.  /3/  IF THE COURT IS WILLING TO STAY ITS HAND AND
LET THIS CONGRESSIONALLY SELECTED AGENCY IDENTIFY THE INLAND WATER
OUTER SEA LINE IN FUTURE CASES IN ACCORDANCE WITH THIS ACT OF CONGRESS,
WE MAY HOPEFULLY LOOK FORWARD TO HAVING THE COURTS RELIEVED OF THIS
NONJUDICIAL DUTY.  I BELIEVE EXPERIENCE PROVES, HOWEVER, THAT THE
EFFORT OF CONGRESS TO STRAIGHTEN OUT THIS MUDDLE AND GIVE THE SUBMERGED
LANDS TO THE STATES IS DESTINED TO A LONG, SLOW, ALMOST ENDLESS DELAY,
IF THE PROBLEM CONTINUES TO BE LEFT TO THIS COURT.     THE EFFECT OF
THE COURT'S HOLDING TODAY IS THAT WHERE THE PROCESS OF ACCRETION IS
BUILDING UP NEW LAND ALONG THE SHORES, THE BOUNDARIES TEXAS MAY CLAIM
ARE NOT EXTENDED BECAUSE, AS WE HELD LAST TERM, THEY REMAIN IRREVOCABLY
FIXED BY THE 1845 LINE, BUT AS EROSION GRADUALLY PUSHES BACK THE
PRESENT COASTLINE AT OTHER POINTS ALONG THE SHORE, THE OUTER LIMIT OF
THE SUBMERGED LANDS OWNED BY TEXAS IS ALSO PUSHED BACK TOWARD SHORE. 
THIS ARGUMENT OF THE UNITED STATES, ACCEPTED TODAY BY THE COURT, TRULY
DESERVES THE IRONIC TRIBUTE BY COUNSEL FOR TEXAS IN ORAL ARGUMENT THAT
IT WORKS FOR THE UNITED STATES PRECISELY AS THE OLD GAME OF "HEADS I
WIN, TAILS YOU LOSE."  MOREOVER, THE COURT ADMITS THAT IF THE UNITED
STATES WINS, THE BOUNDARY BETWEEN STATE AND FEDERAL LANDS WILL BE AN
AMBULATORY ONE, WITH OIL LEASES BY THE STATE CONSTANTLY SUBJECT TO
INVALIDATION AS EROSION TAKES ITS TOLL ON THE LAND ALONG THE SHORE. 
THE COURT SAYS THAT THESE INEQUITABLE RESULTS "DERIVE FROM . . . THE
SCHEME CONGRESS FASHIONED."  ANTE, AT 6.  I THINK THOSE INEQUITIES
RATHER RESULT FROM THE INTERPRETATION THIS COURT HAS GIVEN THE ACT,
CHIEFLY BY SAYING THAT CONGRESS INTENDED TO GIVE THE TASK OF MARKING
SUBMERGED LAND TO JUDGES RATHER THAN TO SURVEYORS, AND BY HOLDING
FURTHER THAT THE TASK SHOULD BE HANDLED BY REFERENCE TO INTERNATIONAL
TREATIES.  THE UNCERTAINTY AND CONFUSION CREATED FOR THOSE WHO ACCEPT
OIL LEASES FROM THE STATE, AND THE UNFAIRNESS OF THE ONE-SIDED RULE
UNDER WHICH ONLY TEXAS CAN LOSE BY FUTURE NATURAL CHANGES IN THE
SHORELINE, CAN BE ELIMINATED BY SIMPLY CONSTRUING "COAST LINE" IN SEC.
2(B) OF THE ACT TO HAVE THE SAME NATURAL MEANING WE ATTRIBUTED TO THAT
PHRASE ONLY LAST TERM, NAMELY THE HISTORIC COASTLINE "AS IT EXISTED"
WHEN TEXAS WAS ADMITTED TO THE UNION.  AND SECONDLY, IN FUTURE CASES,
ALL THESE PROBLEMS AND INEQUITIES COULD BE SIMPLY AVOIDED BY CHOOSING
TO FOLLOW THE COAST GUARD LINE, MARKED OUT AS AUTHORIZED BY ACT OF
CONGRESS. 

I DISSENT FROM THE COURT'S ACCEPTANCE OF THE PROPOSED UNITED STATES
DECREE AND WOULD APPROVE THE DECREE OF TEXAS. 

/1/  67 STAT. 29, 43 U.S.C. 1301-1315. 

/2/  THE UNITED STATES DESCRIBES THE WAY IN WHICH THE MEASUREMENTS
WILL HAVE TO BE TAKEN AS FOLLOWS: 

"THIS WORK IS DONE BY PHOTOGRAMMETRY-- THAT IS, BY AERIAL
PHOTOGRAPHS TAKEN WHEN THE SEA IS EXACTLY AT THE LEVEL OF MEAN LOW
TIDE.  THESE ARE THEN CORRELATED WITH MAPS BY USE OF CONTROL POINTS,
AND THE WATER LINE SHOWN ON THE PHOTOGRAPHS IS TRANSFERRED TO THE
MAPS.  THERE ARE ONLY LIMITED TIMES WHEN THE TIDE REACHES THE PROPER
STAGE WHILE THERE IS SUITABLE DAYLIGHT FOR SUCH PHOTOGRAPHY AND THERE
IS NO OFFSHORE OR ONSHORE WIND TO DISLOCATE THE WATER LINE.  WHEN THE
NECESSARY CONDITIONS DO CONCUR, THE TIDE STAGE LASTS ONLY A FEW
MINUTES.  THUS, PHOTOGRAPHY OF AN EXTENSIVE COAST SUCH AS THAT OF TEXAS
MAY BE A PROTRACTED OPERATION.  SUBSEQUENT CARTOGRAPHY REQUIRES SKILLED
AND PAINSTAKING WORK THAT CANNOT BE DONE HURRIEDLY OR BY MASS
PRODUCTION METHODS."  MEMORANDUM IN SUPPORT OF PROPOSED DECREE, JULY
15, 1968, P. 28, N. 13. 

/3/  28 STAT. 672, 33 U.S.C. 151.  CONGRESS FIRST ENTRUSTED THIS
DUTY TO THE TREASURY DEPARTMENT, LATER TO THE COMMERCE DEPARTMENT, AND
LATER TO THE COMMANDANT OF THE COAST GUARD. 

LOUIS F. CLAIBORNE ARGUED FOR THE UNITED STATES ON ITS PROPOSED
SUPPLEMENTAL DECREE AS TO THE STATE OF TEXAS.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MARTZ,
ROGER P. MARQUIS, AND GEORGE S. SWARTH. 

HOUGHTON BROWNLEE, JR., ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED
FOR THE STATE OF TEXAS ON SUPPLEMENTAL DECREE PROPOSED BY TEXAS.  WITH
HIM ON THE BRIEF WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL, NOLA WHITE,
FIRST ASSISTANT ATTORNEY GENERAL, A. J. CARUBBI, JR., EXECUTIVE
ASSISTANT ATTORNEY GENERAL, AND J. ARTHUR SANDLIN AND C. DANIEL JONES,
JR., ASSISTANT ATTORNEYS GENERAL. 
..END :
























LOUISIANA BOUNDARY CASE, 394 U.S. 11 


       UNITED STATES V. LOUISIANA ET AL. (LOUISIANA BOUNDARY

           CASE). 

        ON CROSS-MOTIONS FOR THE ENTRY OF A SUPPLEMENTAL DECREE AS

           TO THE STATE OF LOUISIANA. 

        NO. 9, ORIG.-- ARGUED OCTOBER 14-15, 1968.-- DECIDED MARCH

           3, 1969. 


IN UNITED STATES V. LOUISIANA, 363 U.S. 1, THE COURT HELD THAT BY THE
SUBMERGED LANDS ACT OF 1953 THE UNITED STATES HAD QUIT-CLAIMED TO
LOUISIANA LANDS UNDERLYING THE GULF OF MEXICO WITHIN THREE GEOGRAPHICAL
MILES OF THE COASTLINE, THE UNITED STATES BEING DECLARED ENTITLED TO
THE LANDS FURTHER SEAWARD.  THE DECREE AND THE ACT DEFINED "COAST LINE"
AS "THE LINE OF ORDINARY LOW WATER ALONG THAT PORTION OF THE COAST
WHICH IS IN DIRECT CONTACT WITH THE OPEN SEA AND THE LINE MARKING THE
SEAWARD LIMIT OF INLAND WATERS."  THE UNITED STATES AND LOUISIANA FILED
CROSS-MOTIONS FOR A SUPPLEMENTAL DECREE DESIGNATING THE BOUNDARY OF THE
LANDS UNDER THE GULF OWNED BY LOUISIANA, THE PARTIES DIFFERING
PRIMARILY WITH RESPECT TO THAT PART OF THE COASTLINE CONSISTING OF "THE
LINE MARKING THE SEAWARD LIMIT OF INLAND WATERS."  THE UNITED STATES
CONTENDS THAT THE DEFINITIONS OF "INLAND WATERS" CONTAINED IN THE
INTERNATIONAL CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE
(HEREAFTER CONVENTION) WHOULD DETERMINE THE LOCATION OF THAT LINE,
WHILE LOUISIANA URGES THAT THE GOVERNING BOUNDARY IS A LINE IT CALLS
THE "INLAND WATER LINE" WHICH WAS FIXED BY THE COMMANDANT OF THE COAST
GUARD PURSUANT TO AN 1895 FEDERAL STATUTE WHICH DIRECTED THE DRAWING OF
"LINES DIVIDING THE HIGH SEAS FROM RIVERS, HARBORS, AND INLAND
WATERS."  LOUISIANA URGES, ALTERNATIVELY, THAT THE DECREE PROPOSED BY
THE UNITED STATES REFLECTS AN OVERLY STRICT CONSTRUCTION OF THE
CONVENTION'S PROVISIONS.  HELD: 

1.  THAT PART OF LOUISIANA'S COASTLINE WHICH, UNDER THE SUBMERGED
LANDS ACT, CONSISTS OF "THE LINE MARKING THE SEAWARD LIMIT OF INLAND
WATERS," IS TO BE DRAWN IN ACCORDANCE WITH THE CONVENTION'S
DEFINITIONS.  PP. 17-35. 

(A) CONGRESS DELIBERATELY "CHOSE TO LEAVE THE DEFINITION OF INLAND
WATERS . . . IN THE COURT'S HANDS" (UNITED STATES V. CALIFORNIA, 381
U.S. 139, 157), AND DID NOT INTEND TO TIE THE MEANING OF "INLAND
WATERS" TO THE 1895 ACT, WHICH WAS ENACTED TO SEPARATE THE AREAS IN
WHICH SHIPPING MUST FOLLOW INLAND NAVIGATION RULES FROM THOSE IN WHICH
IT MUST FOLLOW INTERNATIONAL RULES.  PP. 19-21. 

(B) IN UNITED STATES V. CALIFORNIA THE COURT HELD THAT THE
CONVENTION'S DEFINITIONS WERE "THE BEST AND MOST WORKABLE . . .
AVAILABLE," AND ADOPTED THEM FOR THE PURPOSES OF THE SUBMERGED LANDS
ACT.  P. 21. 

(C) NOTHING IN EITHER THE ENACTMENT OF THE 1895 ACT OR IN ITS
ADMINISTRATION INDICATES THAT THE UNITED STATES HAS TREATED THE "INLAND
WATER LINE" AS A TERRITORIAL BOUNDARY.  THE REASONABLE REGULATION OF
NAVIGATION IS NOT ALONE A SUFFICIENT EXERCISE OF DOMINION TO CONSTITUTE
A CLAIM TO HISTORIC INLAND WATERS; AND IN ANY EVENT NO SUCH CLAIM CAN
BE MADE IN THE FACE OF LONG-STANDING DISCLAIMERS OF HISTORIC TITLE AND
THE ABSENCE OF ANY TREATMENT OF THE "INLAND WATER LINE" BY THE UNITED
STATES AS DELIMITING AN AREA WITHIN WHICH IT CAN EXERCISE JURISDICTION
OVER ANYTHING BUT NAVIGATION.  PP. 21-32. 

(D) THE COURT'S ADOPTION IN UNITED STATES V. CALIFORNIA OF THE
CONVENTION DEFINITIONS WAS "FOR THE PURPOSES OF THE SUBMERGED LANDS
ACT" AND NOT SIMPLY FOR THE PURPOSE OF DELINEATING A PARTICULAR STATE'S
COASTLINE.  IF THE INCONVENIENCE OF AN AMBULATORY COASTLINE PROVES
SUBSTANTIAL, THE PROBLEMS MAY BE RESOLVED THROUGH LEGISLATION OR
AGREEMENT BETWEEN THE PARTIES.  PP. 32-35. 

2.  THOUGH THE COURT IS ABLE, ON THE BASIS OF THE MATERIALS NOW
BEFORE IT, TO DECIDE MANY ISSUES INVOLVING APPLICATION OF THE
CONVENTION TO THE LOUISIANA COAST, THE COURT HAS DECIDED TO REFER TO A
SPECIAL MASTER SEVERAL PARTICULARIZED DISPUTES OVER THE PRECISE
BOUNDARY BETWEEN SUBMERGED GULF LANDS BELONGING TO THE UNITED STATES
AND THOSE BELONGING TO LOUISIANA, SINCE RESOLUTION OF SEVERAL OF SUCH
DISPUTES CANNOT BE MADE WITHOUT EVIDENTIARY HEARINGS AND RESOLUTION OF
OTHERS IN THIS TECHNICAL AND UNFAMILIAR AREA WOULD BENEFIT FROM THE
PRELIMINARY JUDGMENT OF A DETACHED REFEREE.  PP. 35-78. 

(A) DREDGED CHANNELS IN THE GULF LEADING TO INLAND HARBORS, NOT
BEING RAISED STRUCTURES, DO NOT COME WITHIN THE CATEGORY OF "PERMANENT
HARBOUR WORKS" FORMING "AN INTEGRAL PART OF THE HARBOUR SYSTEM," WHICH
ARE TO BE CONSIDERED PART OF THE "COAST UNDER ARTICLE 8 OF THE
CONVENTION AND THEREFORE THAT PROVISION DOES NOT ESTABLISH SUCH
CHANNELS AS INLAND WATERS.  36-40. 

(B) BY APPLICATION OF ARTICLE 11 TO THE LOUISIANA COAST THE LOW-TIDE
ELEVATIONS SITUATED IN THE TERRITORIAL SEA (HERE THE THREE-MILE GRANT
TO LOUISIANA UNDER THE SUBMERGED LANDS ACT) AS MEASURED FROM BAY
CLOSING LINES ARE PART OF THE COASTLINE FROM WHICH THE ACT'S THREE-MILE
GRANT EXTENDS.  PP. 40-47. 

(C) ARTICLE 7 OF THE CONVENTION PERMITS (IN PARAGRAPH 4) A 24-MILE
MAXIMUM CLOSING LINE FOR BAYS AND (IN PARAGRAPH 2) A "SEMICIRCLE TEST"
FOR DETERMINING THE SUFFICIENCY OF THE WATER AREA ENCLOSED (WHICH
REQUIRES THAT A BAY MUST EMBRACE AT LEAST AS MUCH WATER AREA WITHIN ITS
CLOSING LINE AS WOULD BE CONTAINED IN A SEMICIRCLE WITH A DIAMETER
EQUAL TO THE LENGTH OF THE CLOSING LINE).  "OUTER VERMILION BAY."  AN
AREA WITHIN A CLOSING LINE FROM TIGRE POINT TO SHELL KEYS, DOES NOT
QUALIFY AS A BAY UNDER THE SEMICIRCLE TEST BECAUSE IT WOULD BE PART OF
A LARGER INDENTATION WHOSE CLOSING LINE FAR EXCEEDS THE 24-MILE LIMIT. 
PP. 48-52. 

(D) "ASCENSION BAY," WHOSE HEADLANDS ARE JETTIES AT BELLE PASS ON
THE WEST AND SOUTHWEST PASS ON THE EAST, INCLUDES THE INNER BAYS OF THE
BARATARIA BAY-CAMINADA BAY COMPLEX WHICH ARE SEPARATED FROM THE OUTER
INDENTATION ONLY BY A STRING OF ISLANDS ACROSS THE BAYS' ENTRANCES. 
ASCENSION BAY MEETS THE SEMICIRCLE TEST WHEN THE ISLANDS ARE TREATED
(AS PROVIDED BY ARTICLE 7(3) "AS IF THEY WERE PART OF THE WATER AREA." 
PP. 52-53. 

(E) THOUGH EAST BAY DOES NOT MEET THE SEMICIRCLE TEST ON A CLOSING
LINE BETWEEN ITS SEAWARDMOST HEADLANDS, LOUISIANA CONTENDS THAT A PART
OF THAT INDENTATION QUALIFIES AS A BAY SIMPLY BECAUSE A LINE CAN BE
DRAWN WITHIN IT WHICH WOULD SATISFY THE SEMICIRCLE TEST; HOWEVER, NO
SUCH AREA CAN QUALIFY AS A BAY UNLESS ITS OWN FEATURES, NOT THOSE OF
THE LARGER INDENTATION, MEET THE REQUIREMENTS SPECIFIED IN ARTICLE
7(2), AS WELL AS THE SEMICIRCLE TEST THEREIN.  PP. 53-54. 

(F) WHERE ISLANDS INTERSECTED BY A DIRECT CLOSING LINE BETWEEN THE
MAINLAND HEADLANDS CREATE MULTIPLE MOUTHS TO A BAY (THE SITUATION WITH
RESPECT TO THE LAKE PELTO-TERREBONNE BAY-TIMBALIER BAY COMPLEX), THE
BAY SHOULD BE CLOSED BY LINES BETWEEN THE NATURAL ENTRANCE POINTS ON
THE ISLANDS, EVEN IF THOSE POINTS ARE LANDWARD OF THE DIRECT LINE
BETWEEN THE MAINLAND ENTRANCE POINTS.  PP. 54-60. 

(G) THE CONVENTION DOES NOT PROHIBIT THE DRAWING OF BAYCLOSING LINES
TO ISLANDS WHERE (AS IS TRUE OF MUCH OF THE LOUISIANA COAST) INSULAR
CONFIGURATIONS REALLY ARE "PART OF THE MAINLAND"; AND IT IS LEFT TO THE
SPECIAL MASTER INITIALLY TO DETERMINE WHETHER ISLANDS WHICH LOUISIANA
HAS DESIGNATED AS HEADLANDS OF BAYS ARE SO INTEGRALLY RELATED TO THE
MAINLAND AS REALISTICALLY TO BE PARTS OF THE "COAST" WITHIN THE MEANING
OF THE CONVENTION.  PP. 60-66. 

(H) FRINGES OR CHAINS OF ISLANDS ARE TREATED THE SAME AS OTHER
ISLANDS AND ARE NOT TAKEN INTO ACCOUNT AS ENCLOSING INLAND WATERS
UNLESS UNDER ARTICLE 4 THE COASTAL NATION DECIDES IN THE CONDUCT OF ITS
INTERNATIONAL AFFAIRS TO DRAW STRAIGHT BASELINES JOINING APPROPRIATE
POINTS.  THE UNITED STATES WITHIN ITS DISCRETION HAS DECIDED NOT TO
DRAW STRAIGHT BASELINES ALONG THE LOUISIANA COAST, AND THIS EXERCISE OF
DISCRETION IS NOT APPROPRIATELY SUBJECT TO REVIEW BY THE COURT.  PP.66
73. 

(I) THE COURT LEAVES TO THE SPECIAL MASTER THE TASK OF DETERMINING
WHETHER ANY OF THE LOUISIANA COASTAL WATERS ARE "HISTORIC BAYS" WITHIN
THE MEANING OF ARTICLE 7(6), AND THE SPECIAL MASTER SHOULD CONSIDER
STATE EXERCISES OF DOMINION AS RELEVANT TO THE EXISTENCE OF HISTORIC
TITLE.  PP. 74-78. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN UNITED STATES V. LOUISIANA, 363 B.S. 1, THE COURT HELD THAT BY THE
SUBMERGED LANDS ACT OF 1953 /1/  THE UNITED STATES HAD QUITCLAIMED TO
LOUISIANA THE LANDS UNDERLYING THE GULF OF MEXICO WITHIN THREE
GEOGRAPHICAL MILES OF THE COASTLINE.  /2/  THE UNITED STATES WAS
DECLARED ENTITLED TO THE LANDS FURTHER SEAWARD.  IN THE DECREE, AS IN
THE SUBMERGED LANDS ACT, "COAST LINE" WAS DEFINED AS "THE LINE OF
ORDINARY LOW WATER ALONG THAT PORTION OF THE COAST WHICH IS IN DIRECT
CONTACT WITH THE OPEN SEA AND THE LINE MARKING THE SEAWARD LIMIT OF
INLAND WATERS."  /3/  WE RESERVED JURISDICTION "TO ENTERTAIN SUCH
FURTHER PROCEEDINGS, ENTER SUCH ORDERS AND ISSUE SUCH WRITS A MAY . . .
BE DEEMED NECESSARY OR ADVISABLE TO GIVE PROPER FORCE AND EFFECT TO
THIS DECREE."  /4/  BEFORE THE COURT NOW ARE CROSS-MOTIONS BY THE
UNITED STATES AND LOUISIANA /5/  FOR A SUPPLEMENTAL DECREE DESIGNATING
THE BOUNDARY OF THE LANDS UNDER THE GULF OWNED BY LOUISIANA.  /6/  THE
SEGMENTS OF THAT BOUNDARY LINE THAT LIE THREE MILES OUTWARD FROM "THAT
PORTION OF THE COAST WHICH IS IN DIRECT CONTACT WITH THE OPEN SEA" ARE
FOR THE MOST PART EASILY DETERMINABLE.  THE CONTROVERSY HERE IS
PRIMARILY OVER THE LOCATION OF THAT PART OF THE COASTLINE THAT CONSISTS
OF "THE LINE MARKING THE SEAWARD LIMIT OF INLAND WATERS." 

MORE THAN THREE YEARS AGO, IN UNITED STATES V. CALIFORNIA, 381 U.S.
139, WE HELD THAT CONGRESS HAD LEFT TO THE COURT THE TASK OF DEFINING
"INLAND WATERS," AND WE ADOPTED FOR PURPOSES OF THE SUBMERGED LANDS ACT
THE DEFINITIONS CONTAINED IN THE INTERNATIONAL CONVENTION ON THE
TERRITORIAL SEA AND THE CONTIGUOUS ZONE, RATIFIED BY THE UNITED STATES
IN 1961.  /7/  THE UNITED STATES ASSERTS THAT THE SAME DEFINITIONS
SHOULD DETERMINE THE LOCATION OF THE "LINE MARKING THE SEAWARD LIMIT OF
INLAND WATERS" OF LOUISIANA.  LOUISIANA, ON THE OTHER HAND, CONTENDS
THAT THIS LINE HAS ALREADY BEEN DETERMINED PURSUANT TO AN 1895 ACT OF
CONGRESS WHICH DIRECTED THE DRAWING OF "LINES DIVIDING THE HIGH SEAS
FROM RIVERS, HARBORS AND INLAND WATERS," AND HAS PROPOSED A DECREE
BASED UPON THIS CONTENTION.  ALTERNATIVELY, LOUISIANA ARGUES THAT, EVEN
ASSUMING THE APPLICABILITY OF THE DEFINITIONS CONTAINED IN THE
CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE, THE DECREE
PROPOSED BY THE UNITED STATES REFLECTS TOO RESTRICTIVE A CONSTRUCTION
OF THE CONVENTION'S PROVISIONS IN DEROGATION OF RELEVANT PRINCIPLES OF
INTERNATIONAL LAW. 

        I.

        THE "INLAND WATER LINE." 

COMPREHENSIVE CONGRESSIONAL REGULATION OF MARITIME NAVIGATION BEGAN
WITH THE ACT OF APRIL 19, 1864, /8/  WHICH PROMULGATED RULES APPLICABLE
TO ALL VESSELS OF DOMESTIC REGISTRY ON ANY WATERS.  THESE RULES WERE
PATTERNED ON EMERGING INTERNATIONAL STANDARDS, AND WHEN MOST OTHER
MARITIME NATIONS SUBSEQUENTLY CHANGED THEIR RULES, THE UNITED STATES
CONGRESS IN 1885 ENACTED CONFORMING "REVISED INTERNATIONAL RULES AND
REGULATIONS" TO GOVERN AMERICAN SHIPS "UPON THE HIGH SEAS AND IN ALL
COAST WATERS OF THE UNITED STATES, EXCEPT SUCH AS ARE OTHERWISE
PROVIDED FOR."  /9/  THE 1864 ACT WAS THEREFORE REPEALED EXCEPT AS TO
NAVIGATION "WITHIN THE HARBORS, LAKES, AND INLAND WATERS OF THE UNITED
STATES."  /10/  IN 1889 THE INTERNATIONAL MARITIME CONFERENCE DRAFTED
NEW INTERNATIONAL RULES, WHICH WERE PROMPTLY ADOPTED BY CONGRESS.  /11/
ARTICLE 30 OF THOSE RULES PROVIDED THAT "(NOTHING IN THESE RULES SHALL
INTERFERE WITH THE OPERATION OF A SPECIAL RULE, DULY MADE BY LOCAL
AUTHORITY, RELATIVE TO THE NAVIGATION OF ANY HARBOR, RIVER, OR INLAND
WATERS."  /12/ 

THE UNITED STATES ALREADY HAD IN THE 1864 ACT SUCH SPECIAL INLAND
RULES FOR SHIPS OF AMERICAN REGISTRY.  IN ORDER TO CLARIFY THE AREAS
AND SHIPS TO WHICH THE INTERNATIONAL AND INLAND RULES WOULD
RESPECTIVELY APPLY, /13/  CONGRESS IN 1895 PROVIDED THAT THE RULES OF
THE 1864 ACT WERE TO GOVERN THE NAVIGATION OF ALL VESSELS "ON THE
HARBORS, RIVERS AND INLAND WATERS OF THE UNITED STATES."  /14/  THE
1895 ACT WENT ON TO PROVIDE: 

"THE SECRETARY OF THE TREASURY IS HEREBY AUTHORIZED, EMPOWERED AND
DIRECTED FROM TIME TO TIME TO DESIGNATE AND DEFINE BY SUITABLE BEARINGS
OR RANGES WITH LIGHT HOUSES, LIGHT VESSELS, BUOYS OR COAST OBJECTS, THE
LINES DIVIDING THE HIGH SEAS FROM RIVERS, HARBORS AND INLAND WATERS." 
THE AUTHORITY THUS VESTED IN THE SECRETARY OF THE TREASURY HAS SINCE
BEEN TRANSFERRED SEVERAL TIMES TO VARIOUS FEDERAL OFFICIALS AND NOW
RESIDES WITH THE COMMANDANT OF THE COAST GUARD; /15/  AND FROM TIME TO
TIME THE LINES AUTHORIZED BY THE 1895 ACT HAVE BEEN DESIGNATED ALONG
PORTIONS OF THE UNITED STATES COAST.  WHEN THE SUBMERGED LANDS ACT WAS
PASSED IN 1953, SUCH LINES HAD BEEN DRAWN IN THE GULF ONLY ALONG SOME
SEGMENTS OF THE LOUISIANA SHORE, /16/  BUT IN THAT YEAR THE COMMANDANT
OF THE COAST GUARD DREW NEW LINES APPLICABLE TO ALL THE WATERS OFF THE
LOUISIANA COATS.  /17/  IN 1954 THE LOUISIANA LEGISLATURE DECLARED THAT
IT "ACCEPTED AND APPROVED" THIS DEMARCATION, WHICH IT NOW CALLS THE
"INLAND WATER LINE,"  AS ITS BOUNDARY.  /18/  LOUISIANA NOW ARGUES THAT
THIS LINE ENCLOSES INLAND WATERS AND IS THEREFORE "THE LINE MARKING THE
SEAWARD LIMIT OF INLAND WATERS," AND THUS ITS "COASTLINE" WITHIN THE
MEANING OF THE SUBMERGED LANDS ACT.  /19/ 

LOUISIANA ARGUES INITIALLY THAT THE 1895 ACT IS IN PARI MATERIA WITH
THE SUBMERGED LANDS ACT.  CONGRESS, IT IS SAID, MUST HAVE CONTEMPLATED
THAT A TECHNICAL TERM SUCH AS "INLAND WATERS" SHOULD HAVE THE SAME
MEANING IN DIFFERENT STATUTES.  THE PHRASE APPEARS, HOWEVER, IN QUITE
DIFFERENT CONTEXTS IN THE TWO PIECES OF LEGISLATION.  WHILE THE
SUBMERGED LANDS ACT ESTABLISHED BOUNDARIES BETWEEN THE LANDS OF THE
STATES AND THE NATION, CONGRESS' ONLY CONCERN IN THE 1895 ACT WAS WITH
THE PROBLEM OF NAVIGATION IN WATERS CLOSE TO THIS NATION'S SHORES. 
THERE IS NO EVIDENCE IN THE LEGISLATIVE HISTORY THAT IT WAS THE PURPOSE
OF CONGRESS IN 1953 TO TIE THE MEANING OF THE PHRASE "INLAND WATERS" TO
THE 1895 STATUTE.  FOR INSTANCE, DURING THE SENATE COMMITTEE HEARINGS
ON THE SUBMERGED LANDS ACT, THE FOLLOWING EXCHANGE TOOK PLACE BETWEEN
SENATOR ANDERSON AND THE ASSISTANT ATTORNEY GENERAL OF LOUISIANA: 

     "SENATOR ANDERSON.  WAS THERE NOT A SO-CALLED GOVERNMENT LINE

  DRAWN ALONG THE COAST OF LOUISIANA? 

  "MR. MADDEN.  ONLY A PARTIAL LINE, SENATOR.  I REMEMBER THE OLD

  STATUTE THAT AUTHORIZED, I BELIEVE IT WAS FIRST THE SECRETARY OF

  COMMERCE, OR THE TREASURY, TO FIX A LINE TO SHOW THE DEMARCATION

  BETWEEN INLAND WATERS AND THE HIGH SEAS.  I THINK THE COAST GUARD

  HAS ATTEMPTED TO DRAW A PARTIAL LINE OVER ON THE EAST SIDE OF

  LOUISIANA. 

   "SENATOR ANDERSON.  WE WENT THROUGH ALL THAT IN THE HEARING A

  COUPLE OF YEARS AGO, AND FOUND THAT WAS OF NO VALUE TO US

  WHATSOEVER."  /20/

LOUISIANA'S POSITION THAT THE SUBMERGED LANDS ACT MUST NECESSARILY BE
READ AS REFERRING TO THE 1895 ACT IS THUS NOT TENABLE.  /21/  AFTER A
LENGTHY REVIEW OF THE LEGISLATIVE HISTORY OF THE SUBMERGED LANDS ACT IN
UNITED STATES V. CALIFORNIA, WE REACHED THE CONCLUSION THAT CONGRESS
DELIBERATELY "CHOSE TO LEAVE THE DEFINITION OF INLAND WATERS WHERE IT
FOUND IT-- IN THE COURT'S HANDS."  381 U.S.,AT 157.  WE ADHERE TO THAT
VIEW, AND TURN TO LOUISIANA'S OTHER ARGUMENTS IN SUPPORT OF THE "INLAND
WATER LINE." 

WE FURTHER DECIDED IN UNITED STATES V. CALIFORNIA THAT THE
PROVISIONS OF THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS
ZONE WERE "THE BEST AND MOST WORKABLE DEFINITIONS AVAILABLE," 381
U.S.,AT 165, AND WE ADOPTED THEM FOR PURPOSES OF THE SUBMERGED LANDS
ACT.  YET LOUISIANA ASSERTS THAT THE COURT IS NOT PRECLUDED BY THE
CALIFORNIA DECISION FROM ADOPTING THE "INLAND WATER LINE" IN THIS
CASE.  ESSENTIALLY THE ARGUMENT IS THAT THE CONVENTION WAS NOT INTENDED
EITHER TO BE THE EXCLUSIVE DETERMINANT OF INLAND OR TERRITORIAL WATERS
OR TO DIVEST A NATION OF WATERS WHICH IT HAD LONG CONSIDERED SUBJECT TO
ITS SOLE JURISDICTION.  BY THE LONG-STANDING, CONTINUOUS, AND UNOPPOSED
EXERCISE OF JURISDICTION TO REGULATE NAVIGATION ON WATERS WITHIN THE
"INLAND WATER LINE," THE UNITED STATES IS SAID TO HAVE ESTABLISHED THEM
AS ITS INLAND WATERS UNDER TRADITIONAL PRINCIPLES OF INTERNATIONAL
LAW.  ALTERNATIVELY, LOUISIANA SUGGESTS THAT, EVEN ASSUMING THE
EXCLUSIVITY OF THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS
ZONE, THE "INLAND WATER LINE," BY VIRTUE OF THIS ASSERTION OF
SOVEREIGNTY, HAS CREATED "HISTORIC BAYS" WITHIN THE EXCEPTION OF
ARTICLE 7 OF THE CONVENTION.  /22/  WE HAVE CONCLUDED, HOWEVER, THAT
NOTHING IN EITHER THE ENACTMENT OF THE 1895 ACT OR ITS ADMINISTRATION
INDICATES THAT THE UNITED STATES HAS EVER TREATED THAT LINE AS A
TERRITORIAL BOUNDARY. 

UNDER GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW, THE
NAVIGABLE SEA IS DIVIDED INTO THREE ZONES, DISTINGUISHED BY THE NATURE
OF THE CONTROL WHICH THE CONTIGUOUS NATION CAN EXERCISE OVER THEM. 
/23/  NEAREST TO THE NATION'S SHORES ARE ITS INLAND, OR INTERNAL
WATERS.  THESE ARE SUBJECT TO THE COMPLETE SOVEREIGNTY OF THE NATION,
AS MUCH AS IT THEY WERE A PART OF ITS LAND TERRITORY, AND THE COASTAL
NATION HAS THE PRIVILEGE EVEN TO EXCLUDE FOREIGN VESSELS ALTOGETHER. 
BEYOND THE INLAND WATERS, AND MEASURED FROM THEIR SEAWARD EDGE, IS A
BELT KNOWN AS THE MARGINAL, OR TERRITORIAL, SEA.  /24/  WITHIN IT THE
COASTAL NATION MAY EXERCISE EXTENSIVE CONTROL BUT CANNOT DENY THE RIGHT
OF INNOCENT PASSAGE TO FOREIGN NATIONS.  /25/  OUTSIDE THE TERRITORIAL
SEA ARE THE HIGH SEAS, WHICH ARE INTERNATIO4AL WATERS NOT SUBJECT TO
THE DOMINION OF ANY SINGLE NATION.  /26/ 

WHETHER PARTICULAR WATERS ARE INLAND HAS DEPENDED ON HISTORICAL AS
WELL AS GEOGRAPHICAL FACTORS.  CERTAIN SHORELINE CONFIGURATIONS HAVE
BEEN DEEMED TO CONFINED BODIES OF WATER, SUCH AS BAYS, WHICH ARE
NECESSARILY INLAND.  BUT IT HAS ALSO BEEN RECOGNIZED THAT OTHER AREAS
OF WATER CLOSELY CONNECTED TO THE SHORE, ALTHOUGH THEY DO NOT MEET ANY
PRECISE GEOGRAPHICAL TEST, MAY HAVE ACHIEVED THE STATUS OF INLAND
WATERS BY THE MANNER IN WHICH THEY HAVE BEEN TREATED BY THE COASTAL
NATION.  AS WE SAID IN UNITED STATES V. CALIFORNIA, IT IS GENERALLY
AGREED THAT HISTORIC TITLE CAN BE CLAIMED ONLY WHEN THE "COASTAL NATION
HAS TRADITIONALLY ASSERTED AND MAINTAINED DOMINION WITH THE
ACQUIESCENCE OF FOREIGN NATIONS."  381 U.S.,AT 172.  /27/ 

WHILE THERE IS NOT COMPLETE ACCORD ON THE DEFINITION OF HISTORIC
INLAND WATERS, /28/  IT IS UNIVERSALLY AGREED THAT THE REASONABLE
REGULATION OF NAVIGATION IS NOT ALONE A SUFFICIENT EXERCISE OF DOMINION
TO CONSTITUTE A CLAIM TO HISTORIC INLAND WATERS.  ON THE CONTRARY,
CONTROL OF NAVIGATION HAS LONG BEEN RECOGNIZED AS AN INCIDENT OF THE
COASTAL NATION'S JURISDICTION OVER THE TERRITORIAL SEA.  ARTICLE 17 OF
THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE EMBODIES
THIS PRINCIPLE IN ITS DECLARATION THAT "(FOREIGN SHIPS EXERCISING THE
RIGHT OF INNOCENT PASSAGE (IN THE TERRITORIAL SEA) SHALL COMPLY WITH
THE LAWS AND REGULATIONS ENACTED BY THE COASTAL STATE . . . AND, IN
PARTICULAR, WITH SUCH LAWS AND REGULATIONS RELATING TO TRANSPORT AND
NAVIGATION."  /29/  BECAUSE IT IS AN ACCEPTED REGULATION OF THE
TERRITORIAL SEA ITSELF, ENFORCEMENT OF NAVIGATION RULES BY THE COASTAL
NATION COULD NOT CONSTITUTE A CLAIM TO INLAND WATERS FROM WHOSE SEAWARD
BORDER THE TERRITORIAL SEA IS MEASURED.  /30/ 

BUT EVEN IF A NATION COULD BASE A CLAIM TO HISTORIC INLAND WATERS ON
ITS CONTINUOUS REGULATION OF NAVIGATION, /31/  IT IS CLEAR THAT NO
HISTORIC TITLE CAN ACCRUE WHEN THE COASTAL NATION DISCLAIMS ANY
TERRITORIAL REACH BY SUCH AN EXERCISE OF JURISDICTION.  FOR AT LEAST
THE LAST 25 YEARS, DURING WHICH TIME CONGRESS HAS TWICE RE-ENACTED BOTH
THE INTERNATIONAL AND INLAND RULES, /32/  THE RESPONSIBLE OFFICIALS
HAVE CONSISTENTLY DISCLAIMED ANY BUT NAVIGATIONAL SIGNIFICANCE TO THE
"INLAND WATER LINE."  WHEN THE LINE WAS FOR THE FIRST TIME COMPLETED
OFF THE ENTIRE LOUISIANA SHORE, THE COMMANDANT OF THE COAST GUARD
DECLARED: 

     "THE ESTABLISHMENT OF DESCRIPTIVE LINES OF DEMARCATION IS

  SOLELY FOR PURPOSES CONNECTED WITH NAVIGATION AND SHIPPING . . .

  . THESE LINES ARE NOT FOR THE PURPOSE OF DEFINING FEDERAL OR

  STATE BOUNDARIES, NOR DO THEY DEFINE OR DESCRIBE FEDERAL OR STATE

  JURISDICTION OVER NAVIGABLE WATERS."  /33/

AS EARLY AS 1943 THE COAST GUARD HAD DIFFERENTIATED THE "INLAND WATER
LINE" FROM OTHER BOUNDARIES WITH TERRITORIAL SIGNIFICANCE.  ITS MANUAL
ON ADMIRALTY LAW ENFORCEMENT, PUBLISHED THAT YEAR, DISCUSSED THE
PRINCIPLES OF INTERNATIONAL LAW RELATING TO THE DEFINITIONS AND
JURISDICTIONAL ATTRIBUTES OF INLAND WATERS, THE TERRITORIAL SEA, AND
THE HIGH SEAS.  THE MANUAL THEN CONTRASTED THE LINE DRAWN UNDER THE
1895 ACT. 

"NAVIGATION RULE:  NOW LET US CONSIDER ANOTHER LINE OF DEMARCATION. 
AS SHOWN IN CHAPTER V, THERE ARE DIFFERENT RULES FOR NAVIGATION ON ON
THE 'INLAND WATERS' AND THE 'HIGH SEAS':  THE INLAND RULES AND THE
INTERNATIONAL RULES.  BUT HERE WE DO NOT APPLY THE PREVIOUS DEFINITION,
BUT ADOPT A NEW ONE FOR CONVENIENCE.  THE SECRETARY OF COMMERCE HAS
FIXED A SERIES OF LINES ALONG OUR COAST, LINES NOT FOLLOWING THE
NATURAL CURVATURE OF OUR SHORES, AND NOT FOLLOWING ANY THREE-MILE
NATURAL PERIMETER, AND THE INLAND RULES APPLY INSIDE THIS LINE, WHILE
THE INTERNATIONAL RULES APPLY OUTSIDE THE LINE . . . . 

     "QUITE OBVIOUSLY, THIS ARTIFICIAL LINE DOES NOT TRULY SEPARATE

  THE HIGH SEAS FROM THE INLAND WATERS OF THE UNITED STATES.  IT

  SIMPLY MARKS THE AREA WITHIN WHICH THE INLAND RULES APPLY, AND

  OUTSIDE OF WHICH THE INTERNATIONAL RULES CONTROL."  /34/

IN UNITED STATES V. CALIFORNIA WE HELD THAT THE UNITED STATES'
DISCLAIMER TO THE COURT OF ANY HISTORIC TITLE WAS DECISIVE IN THE LIGHT
OF THE "QUESTIONABLE EVIDENCE OF CONTINUOUS AND EXCLUSIVE ASSERTIONS OF
DOMINION OVER THE DISPUTED WATERS."  381 U.S.AT 175.  IN THIS CASE, NOT
ONLY ARE THERE LONG-STANDING, EXTRAJUDICIAL DISCLAIMERS OF HISTORIC
TITLE, BUT ALSO THE UNITED STATES HAS NEVER TREATED THE "INLAND WATER
LINE" AS DELIMITING AN AREA WITHIN WHICH IT CAN EXERCISE JURISDICTION
OVER ANYTHING BUT NAVIGATION.  /35/ 

THERE IS NO INDICATION THAT IN ENACTING THE NAVIGATION RULES AND
AUTHORIZING THE DESIGNATION OF AN "INLAND WATER LINE" CONGRESS BELIEVED
IT WAS ALSO DETERMINING THE NATION'S TERRITORIAL BOUNDARIES.  /36/
INDEED, IT SEEMS UNLIKELY THAT CONGRESS, IF IT HAD INTENDED THAT
RESULT, WOULD HAVE DELEGATED SUCH AUTHORITY TO THE SECRETARY OF THE
TREASURY, TO BE EXERCISED IN HIS DISCRETION "FROM TIME TO TIME" AND BY
REFERENCE TO NAVIGATIONAL AIDS RATHER THAN IN ACCORDANCE WITH
PREVAILING PRINCIPLES OF INTERNATIONAL LAW.  CONSISTENTLY WITH THEIR
LIMITED STATUTORY PURPOSE, THE LINES HAVE ALWAYS BEEN DRAWN, AND
FREQUENTLY ALTERED, SOLELY WITH REGARD TO CONTEMPORARY NAVIGATIONAL
NEEDS.  /37/  AND IN THE ONLY INSTANCE CALLED TO OUR ATTENTION IN WHICH
THE "INLAND WATER LINE" WAS MENTIONED BY THE UNITED STATES IN ITS
INTERNATIONAL RELATIONS, THE STATE DEPARTMENT IN 1929 CAUTIONED THAT
THE "LINES DO NOT REPRESENT TERRITORIAL BOUNDARIES, BUT ARE FOR
NAVIGATIONAL PURPOSES."  /38/  WE MUST THEREFORE REJECT LOUISIANA'S
CONTENTION THAT THE UNITED STATES HAS HISTORICALLY TREATED THE "INLAND
WATER LINE" AS THE TERRITORIAL BOUNDARY OF ITS INLAND WATERS.  /39/

FINALLY, LOUISIANA ARGUES THAT ONLY ADOPTION OF THE CURRENT "INLAND
WATER LINE" WILL FULFILL THE "REQUIREMENTS OF DEFINITENESS AND
STABILITY WHICH SHOULD ATTEND ANY CONGRESSIONAL GRANT OF PROPERTY
RIGHTS BELONGING TO THE UNITED STATES."  UNITED STATES V. CALIFORNIA,
381 T.S. 139, 167.  ANY LINE DRAWN BY APPLICATION OF THE RULES OF THE
CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE WOULD BE
AMBULATORY AND WOULD VARY WITH THE FREQUENT CHANGES IN THE SHORELINE. 
THIS WILL LEAD, IT IS SAID, TO CONTINUING UNCERTAINTY AND ENDLESS
LITIGATION CONCERNING THE LOCATION OF THE LOUISIANA COASTLINE UNDER THE
SUBMERGED LANDS ACT, BECAUSE THE SHORELINE IS CONSTANTLY SHIFTING AS
THE MISSISSIPPI RIVER AND VIOLENT GULF STORMS REMOLD THE SOFT, SILT
LIKE DELTA SOIL.  THIS PROBLEM WAS NOT ENCOUNTERED ON THE ROCK-HARD,
COMPARATIVELY STRAIGHT CALIFORNIA COAST, AND LOUISIANA CONTENDS THAT
THERE IS NOTHING IN THE SUBMERGED LANDS ACT WHICH REQUIRES THAT INLAND
WATERS BE GIVEN THE SAME DEFINITION FOR EVERY PART OF THE UNITED STATES
COAST.  /40/  JUST AS THE COURT WAS FREE IN UNITED STATES V. CALIFORNIA
TO ADOPT THE DEFINITION WHICH BEST SOLVED THE PROBLEMS OF THAT CASE,
THE ARGUMENT CONCLUDES, WE ARE FREE IN THIS CASE TO ADOPT A DIFFERENT
DEFINITION MORE SUITED TO THE PECULIARITIES OF THE HIGHLY UNSTABLE
LOUISIANA SHORE. 

WE DO NOT, HOWEVER, SO BROADLY CONSTRUE OUR FUNCTION UNDER THE
SUBMERGED LANDS ACT.  OUR ADOPTION IN UNITED STATES V. CALIFORNIA OF
THE DEFINITIONS CONTAINED IN THE CONVENTION ON THE TERRITORIAL SEA AND
THE CONTIGUOUS ZONE WAS "FOR PURPOSES OF THE SUBMERGED LANDS ACT," AND
NOT SIMPLY FOR THE PURPOSE OF DELINEATING THE CALIFORNIA COASTLINE. 
CONGRESS LEFT TO THIS COURT THE TASK OF DEFINING A TERM USED IN THE
ACT, NOT OF DRAWING STATE BOUNDARIES BY WHATEVER METHOD MIGHT SEEM
APPROPRIATE IN A PARTICULAR CASE.  IT WOULD BE AN EXTRAORDINARY
PRINCIPLE OF CONSTRUCTION THAT WOULD AUTHORIZE OR PERMIT A COURT TO
GIVE THE SAME STATUTE WHOLLY DIFFERENT MEANINGS IN DIFFERENT CASES, AND
IT WOULD REQUIRE A STRONGER SHOWING OF CONGRESSIONAL INTENT THAN HAS
BEEN MADE IN THIS CASE TO JUSTIFY THE ASSUMPTION OF SUCH UNCONFINED
POWER.  FINALLY, WE NOTE THAT IF THE INCONVENIENCE OF AN AMBULATORY
COASTLINE PROVES TO BE SUBSTANTIAL, THERE IS NOTHING IN THIS DECISION
WHICH WOULD OBSTRUCT RESOLUTION OF THE PROBLEMS THROUGH APPROPRIATE
LEGISLATION OR AGREEMENT BETWEEN THE PARTIES.  SUCH LEGISLATION OR
AGREEMENT MIGHT, FOR EXAMPLE, FREEZE THE COASTLINE AS OF AN AGREED-UPON
DATE. 

EVEN IF WE WERE FREE TO ADOPT VARYING DEFINITIONS OF INLAND WATERS
FOR DIFFERENT PORTIONS OF THE UNITED STATES COAST, WE ARE NOT CONVINCED
THAT THE POLICY IN FAVOR OF A CERTAIN AND STABLE COASTLINE, STRONG AS
IT IS, WOULD NECESSARILY OUTWEIGH COUNTERVAILING POLICY CONSIDERATIONS
UNDER THE SUBMERGED LANDS ACT.  WE RECOGNIZED IN CALIFORNIA THE
DESIRABILITY OF "A SINGLE COASTLINE FOR BOTH THE ADMINISTRATION OF THE
SUBMERGED LANDS ACT AND THE CONDUCT OF OUR FUTURE INTERNATIONAL
RELATIONS."  381 U.S.,AT 165.  THE ADOPTION OF THE "INLAND WATER LINE"
FOR LOUISIANA WOULD BE COMPLETELY AT ODDS WITH THIS DESIDERATUM. 
MOREOVER, ADOPTION OF A NEW DEFINITION OF INLAND WATERS IN THIS CASE
WOULD CREATE UNCERTAINTY AND ENCOURAGE CONTROVERSY OVER THE COASTLINES
OF OTHER STATES, UNSURE AS TO WHICH, IF EITHER, OF THE TWO DEFINITIONS
WOULD BE APPLIED TO THEM.  THIS UNCERTAINTY MIGHT BE COMPOUNDED BY THE
ABSENCE OF ANY "INLAND WATER LINE" AROUND MUCH OF THE UNITED STATES. 
AND WE CANNOT ASSUME THAT, IN ENACTING THE SUBMERGED LANDS ACT,
CONGRESS ENVISIONED THAT THE OWNERSHIP OF POTENTIALLY VAST RESOURCES
MIGHT THEREAFTER BE DETERMINED "FROM TIME TO TIME" BY THE COAST GUARD,
ACTING SOLELY IN THE INTEREST OF NAVIGATIONAL CONVENIENCE. 

FOR THESE REASONS, WE CONCLUDE THAT THAT PART OF LOUISIANA'S
COASTLINE WHICH, UNDER THE SUBMERGED LANDS ACT, CONSISTS OF "THE LINE
MARKING THE SEAWARD LIMIT OF INLAND WATERS," IS TO BE DRAWN IN
ACCORDANCE WITH THE DEFINITIONS OF THE CONVENTION ON THE TERRITORIAL
SEA AND THE CONTIGUOUS ZONE. 

        II.

        APPLICATION OF THE CONVENTION ON THE TERRITORIAL SEA AND
THE

           CONTIGUOUS ZONE. 

MANY ISSUES DIVIDE THE PARTIES CONCERNING THE APPLICATION OF THE
PROVISIONS OF THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS
ZONE TO THE LOUISIANA COAST.  SOME OF THESE ISSUES, WHICH INVOLVE
SIMPLY INTERPRETATION OF THE CONVENTION, WE HAVE BEEN ABLE TO DECIDE ON
THE BASIS OF THE MATERIALS NOW BEFORE US.  OTHERS, HOWEVER, ARE
PRIMARILY FACTUAL QUESTIONS INVOLVING THE CONSTRUCTION AND APPLICATION
OF THE CONVENTION'S PROVISIONS WITH RESPECT TO PARTICULARIZED
GEOGRAPHICAL CONFIGURATIONS.  SEVERAL OF THESE FACTUAL DISPUTES CANNOT
BE PROPERLY RESOLVED WITHOUT EVIDENTIARY HEARINGS, AND AS TO OTHERS WE
THINK IT WOULD BE WISE AT ALL EVENTS IN THIS TECHNICAL AND UNFAMILIAR
AREA TO HAVE THE BENEFIT, PRELIMINARILY, OF THE JUDGMENT OF A DETACHED
REFEREE.  ACCORDINGLY, WE HAVE DECIDED TO REFER TO A SPECIAL MASTER THE
TASK OF RESOLVING IN THE FIRST INSTANCE SEVERAL OF THE PARTICULARIZED
DISPUTES OVER THE PRECISE BOUNDARY BETWEEN THE SUBMERGED GULF LANDS
BELONGING TO THE UNITED STATES AND THOSE BELONGING TO LOUISIANA. 

1.  DREDGED CHANNELS.  A RECURRING QUESTION IN THE APPLICATION OF
THE CONVENTION TO THE LOUISIANA COAST IS WHETHER DREDGED CHANNELS IN
THE GULF LEADING TO INLAND HARBORS COMPRISE INLAND WATERS.  /41/  IN
SUPPORT OF ITS CONTENTION THAT DREDGED CHANNELS, AS SUCH, ARE INLAND
WATERS, LOUISIANA RELIES PRINCIPALLY ON ARTICLE 8 OF THE CONVENTION: 

     "FOR THE PURPOSE OF DELIMITING THE TERRITORIAL SEA, THE

  OUTERMOST PERMANENT HARBOUR WORKS WHICH FORM AN INTEGRAL PART OF

  THE HARBOUR SYSTEM SHALL BE REGARDED AS FORMING PART OF THE

  COAST." 

INCONTESTABLY, LOUISIANA ARGUES, THE CHANNELS "FORM AN INTEGRAL PART OF
THE HARBOUR SYSTEM"; THAT THEY ARE "HARBOUR WORKS" AS WELL SHOULD ALSO
BE OBVIOUS IN LIGHT OF THE ENORMOUS COST AND EFFORT WHICH THE UNITED
STATES HAS EXPENDED IN DREDGING AND MAINTAINING THEM. 

THE UNITED STATES ARGUES MORE CONVINCINGLY, HOWEVER, THAT ARTICLE 8
APPLIES ONLY TO RAISED STRUCTURES.  THE DISCUSSIONS OF THE ARTICLE BY
THE 1958 GENEVA CONFERENCE AND THE INTERNATIONAL LAW COMMISSION REVEAL
THAT THE TERM "HARBOUR WORKS" CONNOTED "STRUCTURES" AND "INSTALLATIONS"
WHICH WERE "PART OF THE LAND" AND WHICH IN SOME SENSE ENCLOSED AND
SHELTERED THE WATERS WITHIN.  /42/  IT IS NOT ENOUGH THAT THE DREDGED
CHANNELS MAY BE AN "INTEGRAL PART OF THE HARBOUR SYSTEM"; EVEN RAISED
STRUCTURES WHICH FIT THAT DESCRIPTION, SUCH AS LIGHTHOUSES, ARE NOT
CONSIDERED "HARBOUR WORKS" UNLESS THEY ARE "CONNECTED WITH THE COAST." 
/43/  THUS, ARTICLE 8 PROVIDES THAT "HARBOUR WORKS . . . SHALL BE
REGARDED AS FORMING PART OF THE COAST", A DESCRIPTION WHICH HARDLY FITS
UNDERWATER CHANNELS.  AS PART OF THE "COAST," THE BREADTH OF THE
TERRITORIAL SEA IS MEASURED FROM THE HARBOR WORKS' LOW-WATER LINES,
ATTRIBUTES NOT POSSESSED BY DREDGED CHANNELS.  /44/  WE MUST THEREFORE
CONCLUDE THAT ARTICLE 8 DOES NOT ESTABLISH DREDGED CHANNELS AS INLAND
WATERS. 

LOUISIANA ALSO CONTENDS THAT THE LEGISLATIVE HISTORY OF THE
SUBMERGED LANDS ACT REVEALS A CLEAR CONGRESSIONAL PURPOSE TO INCLUDE
SUCH CHANNELS AS INLAND WATERS.  EARLY VERSIONS OF THE BILL CONTAINED A
DEFINITION OF THE TERM "INLAND WATERS" FOR THE PURPOSES OF THE ACT, AND
THAT DEFINITION INCLUDED "CHANNELS."  /45/  THE DEFINITION WAS LATER
DELETED, BUT LOUISIANA CONTENDS THAT THE SOLE PURPOSE OF THE DELETION
WAS TO AVOID A CONSTRUCTION OF THE DEFINITION WHICH WOULD EXCLUDE OTHER
AREAS FROM INLAND WATERS.  /46/  IN UNITED STATES V. CALIFORNIA, 381
U.S. 139, 150-160, WE REVIEWED AT LENGTH THE PERTINENT LEGISLATIVE
HISTORY AND CONCLUDED THAT THE ONLY SURE INFERENCE WHICH COULD BE DRAWN
FROM THE DELETION OF THE DEFINITION WAS THAT CONGRESS THOUGH THE HIGHLY
TECHNICAL QUESTION SHOULD BE LEFT TO THE COURTS.  WE REMAIN OF THAT
VIEW.  MOREOVER, IT IS FAR FROM CLEAR THAT THE WORD "CHANNELS" IN THE
DELETED DEFINITION ENCOMPASSED DREDGED CHANNELS IN THE OPEN SEA.  FROM
THE CONTEXT IN WHICH THE WORD APPEARS, IT IS FAR MORE LIKELY THAT THE
DEFINITION REFERRED ONLY TO BODIES OF WATER BORDERED BY LAND.  /47/ 

2.  THE TERRITORIAL SEA OF LOW-TIDE ELEVATIONS.  ARTICLE 11 OF THE
CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE DEALS WITH
THE SUBJECT OF LOW-TIDE ELEVATIONS: 

     "1.  A LOW-TIDE ELEVATION IS A NATURALLY-FORMED AREA OF LAND

  WHICH IS SURROUNDED BY AND ABOVE WATER AT LOW-TIDE BUT SUBMERGED

  AT HIGH TIDE.  WHERE A LOW-TIDE ELEVATION IS SITUATED WHOLLY OR

  PARTLY AT A DISTANCE NOT EXCEEDING THE BREADTH OF THE TERRITORIAL

  SEA FROM THE MAINLAND OR AN ISLAND, THE LOW-WATER LINE ON THAT

  ELEVATION MAY BE USED AS THE BASELINE FOR MEASURING THE BREADTH

OF THE TERRITORIAL SEA. 

      "2.  WHERE A LOW-TIDE ELEVATION IS WHOLLY SITUATED AT A

  DISTANCE EXCEEDING THE BREADTH OF THE TERRITORIAL SEA FROM THE

  MAINLAND OR AN ISLAND, IT HAS NO TERRITORIAL SEA OF ITS OWN." 

THE QUESTION PRESENTED BY THE APPLICATION OF THIS PROVISION TO THE
LOUISIANA COAST IS WHETHER THE TERRITORIAL SEA-- OR, FOR PURPOSES OF
THIS CASE, THE THREE-MILE GRANT TO LOUISIANA UNDER THE SUBMERGED LANDS
ACT-- IS TO BE MEASURED FROM LOW-TIDE ELEVATIONS WHICH LIE WITHIN THREE
MILES OF THE BASELINE ACROSS THE MOUTH OF A BAY BUT MORE THAN THREE
MILES FROM ANY POINT ON THE MAINLAND OR AN ISLAND.  /48/ 

THE UNITED STATES ARGUES THAT THE PHRASE "AT A DISTANCE NOT
EXCEEDING THE BREADTH OF THE TERRITORIAL SEA FROM THE MAINLAND" DOES
NOT REFER TO THE TERRITORIAL SEA AS A SITUS.  RATHER IT USES THE WIDTH
OF THE TERRITORIAL SEA ONLY AS A MEASUREMENT OF DISTANCE-- A
CIRCUMLOCUTION MADE NECESSARY BY THE FAILURE OF THE 1958 GENEVA
CONFERENCE TO AGREE UPON A UNIFORM WIDTH.  /49/  AND THAT DISTANCE--
THREE MILES IN THIS CASE-- IS TO BE MEASURED FROM THE "MAINLAND," A
TERM WHICH DOES NOT COMPRISE BASELINES ACROSS BODIES OF WATER BUT IS
LIMITED TO THE LOW-WATER MARK ON DRY LAND.  LOUISIANA, ON THE OTHER
HAND, INTERPRETS THE ARTICLE AS COVERING ALL LOW-TIDE ELEVATIONS
SITUATED ANYWHERE WITHIN THE TERRITORIAL SEA.  AND THE DRAWING OF
BASELINES ACROSS THE MOUTHS OF BAYS IS AN INTEGRAL STEP IN THE
DETERMINATION OF THE AREA OF THE TERRITORIAL SEA.  MOREOVER, LOUISIANA
ARGUES, THE TERM "MAINLAND" DOES INCLUDE INLAND WATERS.  THE THEORY OF
THE CONVENTION, IT IS ARGUED, REFLECTS A LONG-STANDING PRINCIPLE OF
INTERNATIONAL LAW-- THAT BAYS AND OTHER INLAND WATERS ARE PRACTICALLY
ASSIMILATED TO THE DRY LAND AND TREATED FOR ALL LEGAL PURPOSES AS IF
THEY WERE A PART OF IT.  /50/ 

THE PARTIES AGREE THAT ARTICLE 11 ON ITS FACE IS NOT WHOLLY
DISPOSITIVE OF THE ISSUE, AND THAT THE LANGUAGE DOES NOT PRECLUDE
EITHER CONSTRUCTION.  /51/  EACH PARTY, THEREFORE, RELIES ON THE
ORIGINS OF THE ARTICLE AND THE STATEMENTS OF ITS DRAFTERS.  WHEN THE
PROVISION WAS FIRST PROPOSED TO THE INTERNATIONAL LAW COMMISSION IN
1952, IT READ AS FOLLOWS: 

     "ELEVATIONS OF THE SEA BED SITUATED WITHIN THE TERRITORIAL
SEA,

  THOUGH ONLY ABOVE WATER AT LOW TIED, ARE TAKEN INTO CONSIDERATION

  FOR THE DETERMINATION OF THE BASE LINE OF THE TERRITORIAL SEA." 

  /52/

AFTER SEVERAL AMENDMENTS TO THE RAPPORTEUR'S DRAFT, /53/  THE
COMMISSION IN 1955 ADOPTED A VERSION WITH SUBSTANTIALLY THE SAME
MEANING: 

   "DRYING ROCKS AND SHOALS WHICH ARE WHOLLY OR PARTLY WITHIN THE

  TERRITORIAL SEA MAY BE TAKEN AS POINTS OF DEPARTURE FOR

  DELIMITING THE TERRITORIAL SEA."  /54/

AS THE DISCUSSION MADE CLEAR, BOTH DRAFTS OF THE ARTICLE COVERED ALL
LOW-TIDE ELEVATIONS WITHIN THE TERRITORIAL SEA, HOWEVER MEASURED. 
MOREOVER, THE PROVISION WAS THOUGHT TO EMBODY LONG-STANDING PRINCIPLES
OF INTERNATIONAL LAW.  /55/ 

THE DRAFT ENCOUNTERED A SERIOUS OBJECTION, HOWEVER, WHICH LED TO ITS
FURTHER AMENDMENT BY THE INTERNATIONAL LAW COMMISSION.  IF EVERY LOW
TIDE ELEVATION "WITHIN THE TERRITORIAL SEA" WAS TO HAVE A TERRITORIAL
SEA OF ITS OWN, THEN 

"A COUNTRY LIKE HOLLAND MIGHT EXTEND ITS TERRITORIAL SEA VERY
CONSIDERABLY BY ADVANCING FROM ONE SHOAL TO ANOTHER, CLAIMING THAT A
SHOAL SITUATED WITHIN THE TERRITORIAL SEA OF ANOTHER SHOAL HAD ITSELF A
TERRITORIAL SEA."  /56/ TO AVOID THIS UNDUE EXTENSION OF THE
TERRITORIAL SEA, THE FINAL DRAFT OF THE COMMISSION WAS REVISED TO READ
AS FOLLOWS: 

"DRYING ROCK AND DRYING SHOALS WHICH ARE WHOLLY OR PARTLY

  WITHIN THE TERRITORIAL SEA, AS MEASURED FROM THE MAINLAND OR AN

  ISLAND, MAY BE TAKEN AS POINTS OF DEPARTURE FOR MEASURING THE

  EXTENSION OF THE TERRITORIAL SEA."  /57/

IT IS CLEAR THAT UNDER THE INTERNATIONAL LAW COMMISSION VERSION OF
ARTICLE 11, THE "TERRITORIAL SEA, AS MEASURED FROM THE MAINLAND"
INCLUDED THOSE PORTIONS WHICH EXTENDED FROM BASELINES ENCLOSING BAYS. 
/58/  THE SOLE PURPOSE OF THE AMENDMENT TO THE INITIAL PROPOSALS WAS TO
INDICATE THAT "DRYING ROCKS AND DRYING SHOALS COULD ONLY BE USED ONCE
AS POINTS OF DEPARTURE FOR EXTENDING THE TERRITORIAL SEA AND THAT THE
PROCESS COULD NOT BE REPEATED BY LEAPFROGGING, AS IT WERE, FROM ONE
ROCK OR SHOAL TO ANOTHER."  /59/ 

THE UNITED STATES CONTENDS THAT BY CHANGING THE LANGUAGE OF THE
INTERNATIONAL LAW COMMISSION DRAFT TO ITS PRESENT FROM IN THE
CONVENTION, THE GENEVA CONFERENCE INTENDED ALSO TO CHANGE ITS MEANING. 
PRECISELY THE OPPOSITE CONCLUSION, HOWEVER, FLOWS FROM AN INSPECTION OF
THE HISTORY OF THE CONVENTION.  THE AMENDMENT WAS ADVANCED BY THE
UNITED STATES; YET ITS EXPLANATION FOR THE PROPOSAL CONTAINED NOT THE
SLIGHTEST INDICATION THAT ANY CHANGE IN THE BASIC MEANING OF THE
ARTICLE WAS INTENDED.  /60/  SURELY THERE WOULD HAVE BEEN SOME
DISCUSSION OF THE REFERENCE TO THE TERRITORIAL SEA AS A MEASURE OF
DISTANCE RATHER THAN AS A SITUS HAD IT BEEN THE PURPOSE OF THE UNITED
STATES OR THE CONFERENCE TO ALTER SO SIGNIFICANTLY THE MEANING OF PRIOR
DRAFTS AND THE EXISTING INTERNATIONAL CONSENSUS.  /61/  INSTEAD, THE
EXPERT TO THE SECRETARIAT OF THE CONFERENCE EXPLAINED "THAT ALL THE
PROPOSALS ON ARTICLE 11 CORRESPONDED ENTIRELY TO THE INTENTIONS OF THE
INTERNATIONAL LAW COMMISSION."  /62/  WE THEREFORE CONCLUDE THAT LOW
TIDE ELEVATIONS SITUATED IN THE TERRITORIAL SEA AS MEASURED FROM BAY
CLOSING LINES ARE PART OF THE COASTLINE FROM WHICH THE THREE-MILE GRANT
OF THE SUBMERGED LANDS ACT EXTENDS.  /63/ 

3/  THE SEMICIRCLE TEST.  ARTICLE 7(2) DEFINES A BAY AS FOLLOWS: 

     "FOR THE PURPOSES OF THESE ARTICLES, A BAY IS A WELL-MARKED

  INDENTATION WHOSE PENETRATION IS IN SUCH PROPORTION TO THE WIDTH

  OF ITS MOUTH AS TO CONTAIN LANDLOCKED WATERS AND CONSTITUTE MORE

  THAN A MERE CURVATURE OF THE COAST.  AN INDENTATION SHALL NOT

  HOWEVER, BE REGARDED AS A BAY UNLESS ITS AREA IS AS LARGE AS, OR

  LARGER THAN, THAT OF THE SEMI-CIRCLE WHOSE DIAMETER IS A LINE

  DRAWN ACROSS THE MOUTH OF THAT INDENTATION." 

(A) IN SEVERAL AREAS ALONG THE LOUISIANA COAST THE PARTIES RAISE THE
PROBLEM OF WHETHER AND TO WHAT EXTENT INDENTATIONS WITHIN OR TRIBUTARY
TO ANOTHER INDENTATION CAN BE INCLUDED IN THE AREA OF THE LATTER FOR
PURPOSES OF THE SEMICIRCLE TEST.  LOUISIANA ARGUES THAT A CLOSING LINE
SHOULD BE DRAWN ACROSS WHAT IT CALLS "OUTER VERMILION BAY"  FROM TIGRE
POINT TO SHELL KEYS.  THAT BODY OF WATER DOES NOT MEET THE SEMICIRCLE
TEST UNLESS THE AREA OF VERMILION BAY, JOINED TO "OUTER VERMILION BAY"
ONLY BY A CHANNEL BETWEEN THE MAINLAND AND MARSH ISLAND, IS INCLUDED. 
SIMILARLY, LOUISIANA CONTENDS THAT "ASCENSION BAY," WHOSE HEADLANDS ARE
SAID TO BE THE JETTIES AT BELLE PASS ON THE WEST AND SOUTHWEST PASS ON
THE EAST, IS A BAY UNDER ARTICLE 7(2).  /64/  AGAIN, HOWEVER, ITS AREA
WILL SATISFY THE SEMICIRCLE TEST ONLY IF DEEMED TO INCLUDE THE WATERS
OF THE BARATARIA BAY-CAMINADA BAY COMPLEX, WHICH ARE SEPARATED FROM THE
OUTER INDENTATION BY A STRING OF ISLANDS.  /65/ 

LOUISIANA ARGUES THAT THE AREA OF TRIBUTARY BAYS OR OTHER
INDENTATIONS MUST BE INCLUDED WITHIN THAT OF THE PRIMARY INDENTATION. 
ARTICLE 7(3) PROVIDES THAT "(FOR THE PURPOSE OF MEASUREMENT, THE AREA
OF AN INDENTATION IS THAT LYING BETWEEN THE LOW-WATER MARK AROUND THE
SHORE OF THE INDENTATION AND A LINE JOINING THE LOW-WATER MARKS OF ITS
NATURAL ENTRANCE POINTS."  THE ITALICIZED PHRASE, IT IS SAID,
CONSTITUTES A DIRECTION TO FOLLOW THE LOW-WATER LINE WHEREVER IT GOES,
INCLUDING INTO OTHER INDENTATIONS, IN DRAWING THE PERIMETER OF THE
PRIMARY BAY.  THE GENERAL RULE IS WELL RECOGNIZED, LOUISIANA ARGUES, BY
THE UNITED STATES DEPARTMENT OF STATE AMONG OTHERS, THAT THE AREA OF
BAYS WITHIN BAYS IS INCLUDED IN CALCULATING THE SEMICIRCLE TEST.  /66/ 

THE UNITED STATES DOES NOT REJECT THE NOTION THAT SOME INDENTATIONS
WHICH WOULD QUALIFY INDEPENDENTLY AS BAYS MAY NONETHELESS BE CONSIDERED
AS PART OF LARGER INDENTATIONS FOR PURPOSES OF THE SEMICIRCLE TEST; BUT
IT DENIES THE EXISTENCE OF ANY RULE THAT ALL TRIBUTARY WATERS ARE SO
INCLUDIBLE.  ARTICLE 7(2), IT EMPHASIZES, REFERS TO "THAT
INDENTATION."  THE INNER BAYS CAN BE INCLUDED, THEREFORE, ONLY IF THEY
CAN REASONABLY BE CONSIDERED PART OF THE SINGLE, OUTER INDENTATION. 
AND THAT CANNOT BE SAID OF INLAND WATERS WHICH, LIKE VERMILION BAY AND
BARATARIA BAY-CAMINADA BAY, ARE WHOLLY SEPARATED FROM THE OUTER BODY OF
WATER AND LINKED ONLY BY NARROW PASSAGES OR CHANNELS.  /67/ 

FOR PURPOSES OF THIS LAWSUIT, WE FIND IT UNNECESSARY TO PROVIDE A
COMPLETE ANSWER TO THE QUESTIONS POSED BY THE PARTIES.  "OUTER
VERMILION BAY," IF IT IS TO QUALIFY UNDER THE SEMICIRCLE TEST, MUST
INCLUDE THE WATERS OF VERMILION BAY.  YET VERMILION BAY IS ITSELF A
PART OF THE MUCH LARGER INDENTATION WHICH INCLUDES WEST AND EAST COTE
BLANCHE BAYS AND ATCHAFALAYA BAY, AND WHICH OPENS TO THE SEA BETWEEN
MARSH ISLAND AND POINT AU FER.  RECOGNITION OF THE UNITARY NATURE OF
THIS LARGER INDENTATION FOLLOWS FROM LOUISIANA'S INSISTENCE THAT THE
LOW-WATER MARK MUST BE FOLLOWED AROUND THE ENTIRE INDENTATION.  IF, AS
LOUISIANA POSITS, THE WESTERN HEADLAND OF THE INDENTATION IS AT TIGRE
POINT, THEN A CLOSING LINE ACROSS ITS MOUTH TO POINT AU FER FAR EXCEEDS
THE 24-MILE LIMIT IMPOSED BY ARTICLE 7(4).  /68/  IT FOLLOWS THAT
"OUTER VERMILION BAY" IS NEITHER ITSELF A BAY NOR PART OF A LARGER BAY
UNDER THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE. 

WE HAVE CONCLUDED, ON THE OTHER HAND, THAT THE AREA OF "ASCENSION
BAY" DOES INCLUDE THE BARATARIA BAY-CAMINADA BAY COMPLEX AND THEREFORE
MEETS THE SEMICIRCLE TEST.  THOSE INNER BAYS ARE SEPARATED FROM THE
LARGER "ASCENSION BAY" ONLY BY THE STRING OF ISLANDS ACROSS THEIR
ENTRANCES.  /69/  IF THOSE ISLANDS ARE IGNORED, THE ENTRANCE TO
BARATARIA AND CAMINADA BAYS IS SUFFICIENTLY WIDE THAT THOSE BAYS AND
"ASCENSION BAY" CAN REASONABLY BE DEEMED A SINGLE INDENTATION EVEN
UNDER THE UNITED STATES' APPROACH.  /70/  ARTICLE 7(3) PROVIDES THAT
FOR THE PURPOSES OF CALCULATING THE SEMICIRCLE TEST, "(ISLANDS WITHIN
AN INDENTATION SHALL BE INCLUDED AS IF THEY WERE PART OF THE WATER
AREAS OF THE INDENTATION."  THE CLEAR PURPOSE OF THE CONVENTION IS NOT
TO PERMIT ISLANDS TO DEFEAT THE SEMICIRCLE TEST BY CONSUMING AREAS OF
THE INDENTATION.  WE THINK IT CONSISTENT WITH THAT PURPOSE THAT ISLANDS
SHOULD NOT BE PERMITTED TO DEFEAT THE SEMICIRCLE TEST BY SEALING OFF
ONE PART OF THE INDENTATION FROM THE REST.  TREATING THE STRING OF
ISLANDS "AS IF THEY WERE PART OF THE WATER AREAS" OF THE SINGLE LARGE
INDENTATION WITHIN WHICH THEY LIE, "ASCENSION BAY" DOES MEET THE
SEMICIRCLE TEST.  /71/ 

(B) ANOTHER ISSUE INVOLVING THE SEMICIRCLE TEST ARISES IN EAST BAY
IN THE MISSISSIPPI RIVER DELTA.  /72/  SINCE EAST BAY DOES NOT MEET THE
SEMICIRCLE TEST ON A CLOSING LINE BETWEEN ITS SEAWARDMOST HEADLANDS--
THE TIP OF THE JETTY AT SOUTHWEST PASS AND THE SOUTHERN END OF SOUTH
PASS-- IT DOES NOT QUALIFY AS A BAY UNDER ARTICLE 7 OF THE CONVENTION
ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE.  THERE IS A LINE WHICH
CAN BE DRAWN WITHIN EAST BAY, HOWEVER, SO AS TO SATISFY THE SEMICIRCLE
TEST.  LOUISIANA ARGUES THAT, JUST AS UNDER ARTICLE 7(5) A 24-MILE LINE
CAN BE DRAWN WITHIN A BAY WHOSE MOUTH IS MORE THAN 24 MILES WIDE, /73/
SO ALSO CAN A LINE WHICH SATISFIES THE SEMICIRCLE TEST BE DRAWN WITHIN
A BAY WHOSE MOUTH IS TOO WIDE TO MEET THAT TEST. 

THE ANALOGY IS UNSOUND.  A BAY WHOSE MOUTH IS WIDER THAN 24 MILES IS
NEVERTHELESS A BAY.  BUT AN INDENTATION THAT DOES NOT MEET THE
SEMICIRCLE TEST IS NOT A BAY BUT OPEN SEA.  IF AN INDENTATION WHICH
SATISFIES THE SEMICIRCLE TEST IS A TRUE BAY, THEREFORE, IT CANNOT BE ON
THE THEORY THAT THE CLOSING LINE CARVES OUT A PORTION OF A LARGER BAY. 
THE ENCLOSED INDENTATION MUST BY ITS OWN FEATURES QUALIFY AS A BAY. 

THE UNITED STATES ARGUES THAT THE AREA WITHIN EAST BAY ENCLOSED BY

  LOUISIANA'S PROPOSED LINE DOES NOT CONSTITUTE A BAY BECAUSE THERE
IS NO "WELL-MARKED INDENTATION" WITH IDENTIFIABLE HEADLANDS WHICH
ENCLOSES "LAND-LOCKED" WATERS.  INDEED, IT IS SAID, THERE IS NOT THE
SLIGHTEST CURVATURE OF THE COAST AT EITHER ASSERTED ENTRANCE POINT.  WE
DO NOT NOW DECIDE WHETHER THE DESIGNATED PORTION OF EAST BAY MEETS
THESE CRITERIA, BUT HOLD ONLY THAT THEY MUST BE MET.  WE CANNOT ACCEPT
LOUISIANA'S ARGUMENT THAT AN INDENTATION WHICH SATISFIES THE SEMICIRCLE
TEST IPSO FACTO QUALIFIES AS A BAY UNDER THE CONVENTION.  SUCH A
CONSTRUCTION WOULD FLY IN THE FACT OF ARTICLE 7(2), WHICH PLAINLY
TREATS THE SEMICIRCLE TEST AS A MINIMUM REQUIREMENT.  AND WE HAVE FOUND
NOTHING IN THE HISTORY OF THE CONVENTION WHICH WOULD SUPPORT SO AWKWARD
A CONSTRUCTION. 

4.  ISLANDS AT THE MOUTH OF A BAY.  ARTICLE 7(3) OF THE CONVENTION
ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE PROVIDES: 

"FOR THE PURPOSE OF MEASUREMENT, THE AREA OF AN INDENTATION IS

  THAT LYING BETWEEN THE LOW-WATER MARK AROUND THE SHORE OF THE

  INDENTATION AND A LINE JOINING THE LOW-WATER MARKS OF ITS NATURAL

  ENTRANCE POINTS.WHERE, BECAUSE OF THE PRESENCE OF ISLANDS, AN

  INDENTATION HAS MORE THAN ONE MOUTH, THE SEMICIRCLE SHALL BE

  DRAWN ON A LINE AS LONG AS THE SUM TOTAL OF THE LENGTHS OF THE

  LINES ACROSS THE DIFFERENT MOUTHS.  ISLANDS WITHIN AN INDENTATION

  SHALL BE INCLUDED AS IF THEY WERE PART OF THE WATER AREAS OF THE

  INDENTATION." 

WHILE THE ONLY STATED RELEVANCE OF SUCH ISLANDS IS TO THE SEMICIRCLE
TEST, IT IS CLEAR THAT THE LINES ACROSS THE VARIOUS MOUTHS ARE TO BE
THE BASELINES FOR ALL PURPOSES.  /74/  THE APPLICATION OF THIS
PROVISION TO THE STRING OF ISLANDS ACROSS THE OPENINGS TO THE LAKE
PELTO-TERREBONNE BAY-TIMBALIER BAY COMPLEX HAS RAISED THE FOLLOWING
QUESTIONS: (A) BETWEEN WHAT POINTS ON THE ISLANDS ARE THE CLOSING LINES
TO BE DRAWN, AND (B) SHOULD THE LINES BE DRAWN LANDWARD OF A DIRECT
LINE BETWEEN THE ENTRANCE POINTS ON THE MAINLAND?     (A) IT IS
LOUISIANA'S PRIMARY CONTENTION THAT WHEN ISLANDS APPEAR IN THE MOUTH OF
A BAY, THE LINES CLOSING THE BAY AND SEPARATING INLAND FROM TERRITORIAL
WATERS SHOULD BE DRAWN BETWEEN THE MAINLAND HEADLANDS AND THE
SEAWARDMOST POINTS ON THE ISLANDS.  THIS POSITION, HOWEVER, IS REFUTED
BY THE LANGUAGE OF ARTICLE 7(3), WHICH PROVIDES FOR THE DRAWING OF
BASELINES "ACROSS THE DIFFERENT MOUTHS" NOT ACROSS THE MOST SEAWARD
TIPS OF THE ISLANDS.  THERE IS NO SUGGESTION IN THE CONVENTION THAT A
MOUTH CAUSED BY ISLANDS IS TO BE LOCATED IN A MANNER ANY DIFFERENT FROM
A MOUTH BETWEEN POINTS ON THE MAINLAND-- THAT IS, BY "A LINE JOINING
THE LOW-WATER MARKS OF (THE BAY'S) NATURAL ENTRANCE POINTS."  THE
"NATURAL ENTRANCE POINTS"  MAY, AND IN SOME INSTANCES IN THE LAKE PELTO
TERREBONNE BAY-TIMBALIER BAY COMPLEX DO, COINCIDE WITH THE OUTERMOST
EDGES OF THE ISLANDS.  BUT THERE IS NO AUTOMATIC CORRELATION, AND THE
HEADLANDS MUST BE SELECTED ACCORDING TO THE SAME PRINCIPLES THAT GOVERN
THE LOCATION OF ENTRANCE POINTS ON THE MAINLAND. 

(B) LOUISIANA ARGUES IN THE ALTERNATIVE THAT EVEN IF THE CLOSING
LINES SHOULD NOT NECESSARILY CONNECT THE MOST SEAWARD POINTS ON THE
ISLANDS, IN NO EVENT SHOULD THEY BE DRAWN LANDWARD OF A DIRECT LINE
BETWEEN THE ENTRANCE POINTS ON THE MAINLAND.  /75/  THE PURPOSE OF
ARTICLE 7(3) IS EXPRESSED IN THE FOLLOWING PASSAGE FROM THE COMMENTARY
OF THE INTERNATIONAL LAW COMMISSION: 

"HERE, THE COMMISSION'S INTENTION WAS TO INDICATE THAT THE PRESENCE
OF ISLANDS AT THE MOUTH OF AN INDENTATION TENDS TO LINK IT MORE CLOSELY
TO THE MAINLAND, AND THIS CONSIDERATION MAY JUSTIFY SOME ALTERATION IN
THE RATIO BETWEEN THE WIDTH AND THE PENETRATION OF THE INDENTATION." 
/76/ IT IS EVIDENT, LOUISIANA ARGUES, THAT ARTICLE 7(3) WAS DESIGNED TO
ENLARGE RATHER THAN CONTRACT THE AREA OF INLAND WATERS; AND THAT THIS
POLICY WOULD NOT BE SERVED BY PERMITTING ISLANDS INTERSECTED BY A
DIRECT CLOSING LINE BETWEEN THE MAINLAND HEADLANDS TO PULL THAT LINE
INWARD, PARTICULARLY WHEN THE INDENTATION WOULD QUALIFY AS A BAY EVEN
IN THE ABSENCE OF THE ISLANDS.  /77/  RATHER, THE LINE SHOULD E
SELECTED WHICH WILL ENCLOSE THE MAXIMUM AREA OF INLAND WATERS.  /78/ 

LOUISIANA'S ARGUMENT IS UNDERMINED, HOWEVER, BY THE NATURAL EFFECT
OF ISLANDS AT THE MOUTH OF AN INDENTATION DESCRIBED IN THE
INTERNATIONAL LAW COMMISSION COMMENTARY.  JUST AS THE "PRESENCE OF
ISLANDS AT THE MOUTH OF AN INDENTATION TENDS TO LINK IT MORE CLOSELY TO
THE MAINLAND," SO ALSO DO THE ISLANDS TEND TO SEPARATE THE WATERS
WITHIN FROM THOSE WITHOUT THE ENTRANCES TO THE BAY.  EVEN WATERS WHICH
WOULD BE CONSIDERED WITHIN THE BAY AND THEREFORE "LANDLOCKED" IN THE
ABSENCE OF THE ISLANDS ARE PHYSICALLY EXCLUDED FROM THE INDENTATION IF
THEY LIE SEAWARD OF THE MOUTHS BETWEEN THE ISLANDS.  IT WOULD BE
ANOMALOUS INDEED TO SAY THAT WATERS ARE PART OF A BAY EVEN THOUGH THEY
LIE OUTSIDE ITS NATURAL ENTRANCE POINTS.  NO DOUBT THERE COULD BE
ISLANDS WHICH WOULD NOT, WHETHER BECAUSE OF THEIR SIZE, SHAPE, OR
RELATIONSHIP TO THE MAINLAND, BE SAID TO CREATE MORE THAN ONE MOUTH TO
THE BAY.  BUT THE BAY.  BUT WHERE, AS IN THE LAKE PELTO-TERREBONNE BAY
TIMBALIER BAY COMPLEX, A STRING OF ISLANDS COVERS A LARGE PERCENTAGE OF
THE DISTANCE BETWEEN THE MAINLAND ENTRANCE POINTS, THE OPENINGS BETWEEN
THE ISLANDS ARE DISTINCT MOUTHS OUTSIDE OF WHICH THE WATERS CANNOT
SENSIBLY BE CALLED "INLAND." 

LOUISIANA PURPORTS TO FIND SUPPORT FOR ITS POSITION IN THE PROVISION
OF ARTICLE 7(3) THAT "(ISLANDS WITHIN AN INDENTATION SHALL BE INCLUDED
AS TF THEY WERE PART OF THE WATER AREAS OF THE INDENTATION."  THIS
PROVISION WOULD PRECLUDE DRAWING LINES TO AN ISLAND WHOLLY WITHIN THE
INDENTATION, /79/  LOUISIANA ARGUES, AND IT SHOULD THEREFORE ALSO
PRECLUDE DRAWING CLOSING LINES TO ANY PART OF AN ISLAND LANDWARD OF A
STRAIGHT LINE BETWEEN THE MAINLAND HEADLANDS.  WE CANNOT, HOWEVER,
ACCEPT THIS CONSTRUCTION OF THE CONVENTION.  AN ISLAND WHICH IS
INTERSECTED BY A DIRECT MAINLAND-TO-MAINLAND CLOSING LINE IS NOT
"WITHIN (THE) INDENTATION."  NOR CAN AN ISLAND WHICH FORMS THE MOUTH OF
AN INDENTATION BE "WITHIN" IT.  ARTICLE 7(3) CLEARLY DISTINGUISHES
BETWEEN ISLANDS WHICH, BY CREATING MULTIPLE MOUTHS, FORM A PART OF THE
PERIMETER OF THE BAY, AND THOSE WHICH, BY THEIR PRESENCE WHOLLY
"WITHIN" THE BAY, ARE TREATED AS PART OF ITS WATER AREAS. 

IN SUM, WE HOLD THAT WHERE ISLANDS INTERSECTED BY A DIRECT CLOSING
LINE BETWEEN THE MAINLAND HEADLANDS CREATE MULTIPLE MOUTHS TO A BAY,
THE BAY SHOULD BE CLOSED BY LINES BETWEEN THE NATURAL ENTRANCE POINTS
ON THE ISLANDS, EVEN IF THOSE POINTS ARE LANDWARD OF THE DIRECT LINE
BETWEEN THE MAINLAND ENTRANCE POINTS. 

5.  ISLANDS AS HEADLANDS OF BAYS.  WITH RESPECT TO MANY OF THE BAYS
ON THE LOUISIANA COAST THE QUESTION IS PRESENTED WHETHER A HEADLAND OF
AN INDENTATION CAN BE LOCATED ON AN ISLAND.  /80/  THE UNITED STATES
ARGUES THAT THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS
ZONE FLATLY PROHIBITS THE DRAWING OF BAYCLOSING LINES TO ISLANDS.  A
TRUE BAY, IT IS SAID, IS AN "INDENTATION" WITHIN THE MAINLAND, AND IT
CANNOT BE CREATED BY THE "PROJECTION" OF AN ISLAND OR ISLANDS FROM THE
COAST.  MOREOVER, THE RULE OF ARTICLE 7(3) THAT THE AREA OF AN
INDENTATION LIES BETWEEN THE CLOSING LINE AND "THE LOW-WATER MARK
AROUND THE SHORE OF THE INDENTATION" CONTEMPLATES A PERIMETER OF DRY
LAND UNBROKEN BY ANY OPENING OTHER THAN THE BAY'S ENTRANCE.  FINALLY,
THE UNITED STATES ARGUES, SUCH AN OPENING BETWEEN THE ISLAND AND THE
MAINLAND WOULD DEPRIVE THE ENCLOSED WATERS OF THE "LANDLOCKED" QUALITY
REQUIRED IN A TRUE BAY. 

WE DO NOT AGREE THAT THE FACE OF THE CONVENTION CLEARLY CONCLUDES
THE QUESTION.  NO LANGUAGE IN ARTICLE 7 MEANING OF THE "NATURAL
ENTRANCE POINTS" TO A BAY.  WATERS WITHIN AN INDENTATION WHICH ARE
"LANDLOCKED"  DESPITE THE BAY'S WIDE ENTRANCE SURELY WOULD NOT LOSE
THAT CHARACTERISTIC ON ACCOUNT OF AN ADDITIONAL NARROW OPENING TO THE
SEA.  THAT THE AREA OF A BAY IS DELIMITED BY THE "LOW-WATER MARK AROUND
THE SHORE" DOES NOT NECESSARILY MEAN THAT THE LOW-WATER MARK MUST BE
CONTINUOUS.  /81/ 

MOREOVER, THERE IS NOTHING IN THE HISTORY OF THE CONVENTION OR OF
THE INTERNATIONAL LAW OF BAYS WHICH ESTABLISHES THAT A PIECE OF LAND
WHICH IS TECHNICALLY AN ISLAND CAN NEVER BE THE HEADLAND OF A BAY.  OF
COURSE, THE GENERAL UNDERSTANDING HAS BEEN-- AND UNDER THE CONVENTION
CERTAINLY REMAINS-- THAT BAYS ARE INDENTATIONS IN THE MAINLAND, /82/
AND THAT ISLANDS OFF THE SHORE ARE NOT HEADLANDS BUT AT THE MOST CREATE
MULTIPLE MOUTHS TO THE BAY.  /83/  IN MOST INSTANCES AND ON MOST COASTS
IT IS NO DOUBT TRUE THAT ISLANDS WOULD PLAY ONLY THAT RESTRICTED ROLE
IN THE DELIMITATION OF BAYS.  BUT MUCH OF THE LOUISIANA COAST DOES NOT
FIT THE USUAL MOLD.  IT IS MARSHY, INSUBSTANTIAL, RIDDLED WITH CANALS
AND OTHER WATERWAYS, AND IN PLACES CONSISTS OF NUMEROUS SMALL CLUMPS OF
LAND WHICH ARE ENTIRELY SURROUNDED BY WATER AND THEREFORE TECHNICALLY
ISLANDS.  WITH RESPECT TO SOME SPOTS ALONG THE LOUISIANA COAST EVEN THE
UNITED STATES HAS RECEDED FROM ITS RIGID POSITION AND RECOGNIZED THAT
THESE INSULAR CONFIGURATIONS ARE REALLY "PART OF THE MAINLAND."  THE
WESTERN SHORE OF THE LAKE PELTO-TERREBONNE BAY-TIMBALIER BAY
INDENTATION IS SUCH A FORMATION, AND IS TREATED BY THE UNITED STATES AS
PART OF THE COAST. 

THIS COURT TOO HAS IN THE PAST ADOPTED THIS REALISTIC APPROACH TO
SIMILAR LAND FORMATIONS.  IN LOUISIANA V. MISSISSIPPI, 202 U.S. 1, 45
46, WE WROTE: 

"MISSISSIPPI DENIES THAT THE PENINSULA OF ST. BERNARD AND THE
LOUISIANA MARSHES CONSTITUTE A PENINSULA IN THE TRUE SENSE OF THE WORD,
BUT INSISTS THAT THEY CONSTITUTE AN ARCHIPELAGO OF ISLANDS.  CERTAINLY
THERE ARE IN THE BODY OF THE LOUISIANA MARSHES OR ST. BERNARD PENINSULA
PORTIONS OF SEA MARSH WHICH MIGHT TECHNICALLY BE CALLED ISLANDS,
BECAUSE THEY ARE LAND ENTIRELY SURROUNDED BY WATER, BUT THEY ARE NOT
TRUE ISLANDS.  THEY ARE RATHER, AS THE COMMISSIONER OF THE GENERAL LAND
OFFICE WROTE THE MISSISSIPPI LAND COMMISSIONER IN 1904, 'IN FACT,
HUMMOCKS OF LAND SURROUNDED BY THE MARSH AND SWAMP IN SAID TOWNSHIPS .
. . .' 

     "AND WHEN THE LOUISIANA ACT USED THE WORDS:  'THENCE BOUNDED
BY

  THE SAID GULF TO THE PLACE OF BEGINNING, INCLUDING ALL ISLANDS

  WITHIN THREE LEAGUES OF THE COAST,' THE COAST REFERRED TO IS THE

  WHOLE COAST OF THE STATE, AND THE PENINSULA OF ST. BERNARD FORMED

  AN INTEGRAL PART OF IT." 

NATURALLY THIS COMMON-SENSE APPROACH EXTENDS TO COASTAL FORMATIONS
WHERE THERE ARE ONLY A FEW ISLANDS, OR EVEN A SINGLE ISLAND, AS WELL AS
TO THOSE WHERE THERE ARE MANY.  SUCH HAS BEEN THE VIEW OF OTHER COURTS
/84/  AND OF TEXTWRITERS.  /85/  MUCH OF THE LOUISIANA COAST ON OR NEAR
THE MISSISSIPPI RIVER DELTA IS OF THE SAME GENERAL CONSISTENCY AS THE
WESTERN SHORE OF THE LAKE PELTO-TERREBONNE BAY-TIMBALIER BAY COMPLEX,
AND SOME OF THE ISLANDS MAY BE SO CLOSELY LINKED TO THE MAINLAND AS
REALISTICALLY TO BE ASSIMILATED TO IT.  WHILE THERE IS LITTLE OBJECTIVE
GUIDANCE ON THIS QUESTION TO BE FOUND IN INTERNATIONAL LAW, THE
QUESTION WHETHER A PARTICULAR ISLAND IS TO BE TREATED AS PART OF THE
MAINLAND WOULD DEPEND ON SUCH FACTORS AS ITS SIZE, ITS DISTANCE FROM
THE MAINLAND, THE DEPTH AND UTILITY OF THE INTERVENING WATERS, THE
SHAPE OF THE ISLAND, AND ITS RELATIONSHIP TO THE CONFIGURATION OR
CURVATURE OF THE COAST.  /86/  WE LEAVE TO THE SPECIAL MASTER THE TASK
OF DETERMINING IN THE FIRST INSTANCE-- IN THE LIGHT OF THESE AND ANY
OTHER RELEVANT CRITERIA AND ANY EVIDENCE HE FINDS IT HELPFUL TO
CONSIDER-- WHETHER THE ISLANDS WHICH LOUISIANA HAS DESIGNATED AS
HEADLANDS OF BAY ARE SO INTEGRALLY RELATED TO THE MAINLAND THAT THEY
ARE REALISTICALLY PARTS OF THE "COAST" WITHIN THE MEANING OF THE
CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE. 

6.  FRINGES OF ISLANDS.  AT SEVERAL PLACES /87/  THE QUESTION IS
RAISED WHETHER AREAS BETWEEN THE MAINLAND AND FRINGES OR CHAINS OF
ISLANDS ALONG THE COAST ARE INLAND WATERS.  THE PARTIES AGREE THAT NO
ARTICLE OF THE CONVENTION SPECIFICALLY PROVIDES THAT SUCH AREAS ARE
INLAND WATERS.  LOUISIANA ARGUES THAT THEY ARE INLAND WATERS, UNDER ANY
ONE OF SEVERAL THEORIES:  THAT SUCH ISLAND FRINGES FORM THE PERIMETER
OF BAYS UNDER ARTICLE 7, THAT STRAIGHT BASELINES MUST BE DRAWN ALONG
THE ISLANDS UNDER ARTICLE 4, OR THAT THE WATERS SHOULD BE DEEMED
"INLAND" UNDER GENERAL PRINCIPLES OF INTERNATIONAL LAW WHICH ANTEDATE
AND SUPPLEMENT THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS
ZONE.  THE POSITION OF THE UNITED STATES IS THAT SUCH ISLAND CHAINS CAN
BE TAKEN INTO ACCOUNT AS ENCLOSING INLAND WATERS ONLY BY DRAWING
STRAIGHT BASELINES; YET THE DECISION WHETHER TO DRAW SUCH BASELINES IS
WITHIN THE SOLE DISCRETION OF THE FEDERAL GOVERNMENT, AND THE UNTIED
STATES UNITED STATES HAS NOT CHOSEN TO DO SO. 

WE HAVE CONCLUDED THAT ARTICLE 7 DOES NOT ENCOMPASS BAYS FORMED IN
PART BY ISLANDS WHICH CANNOT REALISTICALLY BE CONSIDERED PART OF THE
MAINLAND.  /88/  ARTICLE 7 DEFINES BAYS AS INDENTATIONS IN THE "COAST,"
A TERM WHICH IS USED IN CONTRAST WITH "ISLANDS" THROUGHOUT THE
CONVENTION.  MOREOVER, IT IS APPARENT FROM THE FACE AND THE HISTORY OF
THE CONVENTION THAT SUCH INSULAR FORMATIONS WERE INTENDED TO BE
GOVERNED SOLELY BY THE PROVISION IN ARTICLE 4 FOR STRAIGHT BASELINES. 
/89/  THE LANGUAGE OF ARTICLE 4 ITSELF IS THE CLEAREST INDICATION OF
THAT INTENT: 

"1.  IN LOCALITIES WHERE THE COAST LINE IS DEEPLY INDENTED AND

  CUT INTO, OR IF THERE IS A FRINGE OF ISLANDS ALONG THE COAST IN

  ITS IMMEDIATE VICINITY, THE METHOD OF STRAIGHT BASELINES JOINING

  APPROPRIATE POINTS MAY BE EMPLOYED IN DRAWING THE BASELINE FROM

  WHICH THE BREADTH OF THE TERRITORIAL SEA IS MEASURED." 

THE DRAFTERS OF THE CONVENTION AND THEIR PREDECESSORS WERE AWARE
THAT INTERNATIONAL LAW PERMITTED SUCH ISLAND FRINGES IN SOME
CIRCUMSTANCES TO ENCLOSE INLAND WATERS.  /90/  THE PRINCIPLE WAS
RECOGNIZED AND APPLIED BY THE INTERNATIONAL COURT OF JUSTICE IN THE
FISHERIES CASE (UNITED KINGDOM V. NORWAY), (1951) I.C.J. 116, IN WHICH
NORWAY WAS HELD LEGITIMATELY TO HAVE DRAWN STRAIGHT BASELINES ALONG THE
"SKJAERGAARD," LITERALLY A "ROCK RAMPART" COMPOSED OF HUNDREDS OF
THOUSANDS OF INSULAR FORMATIONS WHICH RINGED THE MAINLAND.  THEREAFTER,
WITH THE FISHERIES CASE AS THE MODEL, ATTEMPTS WERE MADE TO DRAFT
CONCRETE RULES FOR THE UNIFORM TREATMENT OF SUCH ISLAND FRINGES, AND
BOTH THE INTERNATIONAL LAW COMMISSION AND THE 1958 GENEVA CONFERENCE
DISCUSSED THE PROBLEM AT LENGTH.  /91/  THERE WAS, HOWEVER, TOO LITTLE
TECHNICAL INFORMATION OR CONSENSUS AMONG NATIONS ON THAT AND RELATED
SUBJECTS TO ALLOW THE FORMULATION OF UNIFORM RULES.  /92/  IT WAS
AGREED, THEREFORE, THAT THE PROBLEM SHOULD BE HANDLED AS IT HAD BEEN BY
THE INTERNATIONAL COURT OF JUSTICE IN THE FISHERIES CASE: EACH NATION
WAS LEFT FREE TO DRAW STRAIGHT BASELINES ALONG SUITABLE INSULAR
CONFIGURATIONS IF IT SO DESIRED.  /93/  IN THE LIGHT OF THIS RESOLUTION
OF THE PROBLEM, IT IS CLEAR THAT THE DRAFTERS DID NOT INTEND TO LEAVE
ISLAND FRINGES BEYOND THE SCOPE OF THE CONVENTION ALTOGETHER.  THE
DELIBERATE DECISION WAS THAT SUCH ISLAND FORMATIONS ARE NOT TO BE
TREATED DIFFERENTLY FROM ANY OTHER ISLANDS /94/  UNLESS THE COASTAL
NATION DECIDES TO DRAW STRAIGHT BASELINES.  /95/ 

IN UNITED STATES V. CALIFORNIA, 381 U.S.139, 168, WE HELD THAT "THE
CHOICE UNDER THE CONVENTION TO USE THE STRAIGHT-BASE-LINE METHOD FOR
DETERMINING INLAND WATERS CLAIMED AGAINST OTHER NATIONS IS ONE THAT
RESTS WITH THE FEDERAL GOVERNMENT, AND NOT WITH THE INDIVIDUAL
STATES."  /96/  SINCE THE UNITED STATES ASSERTS THAT IT HAS NOT DRAWN
AND DOES NOT WANT TO DRAW STRAIGHT BASELINES ALONG THE LOUISIANA COAST,
THAT DISCLAIMER WOULD, UNDER THE CALIFORNIA DECISION, BE CONCLUSIVE OF
THE MATTER.  LOUISIANA ARGUES, HOWEVER, THAT BECAUSE THE LOUISIANA
COAST IS SO PERFECTLY SUITED TO THE STRAIGHT BASELINE METHOD, AND
BECAUSE IT IS CLEAR THAT THE UNITED STATES WOULD EMPLOY IT IN THE
CONDUCT OF ITS INTERNATIONAL AFFAIRS WERE IT NOT FOR THIS LAWSUIT, THE
COURT SHOULD RECONSIDER ITS HOLDING IN CALIFORNIA AND ITSELF DRAW
APPROPRIATE BASELINES.  WHILE WE AGREE THAT THE STRAIGHT BASELINE
METHOD WAS DESIGNED FOR PRECISELY SUCH COASTS AS THE MISSISSIPPI RIVER
DELTA AREA, WE ADHERE TO THE POSITION THAT THE SELECTION OF THIS
OPTIONAL METHOD OF ESTABLISHING BOUNDARIES SHOULD BE LEFT TO THE
BRANCHES OF GOVERNMENT RESPONSIBLE FOR THE FORMULATION AND
IMPLEMENTATION OF FOREIGN POLICY.  IT WOULD BE INAPPROPRIATE FOR THIS
COURT TO REVIEW OR OVERTURN THE CONSIDERED DECISION OF THE UNITED
STATES, ALBEIT PARTIALLY MOTIVATED BY A DOMESTIC CONCERN, NOT TO EXTEND
ITS BORDERS TO THE FURTHEST EXTENT CONSONANT WITH INTERNATIONAL LAW. 
/97/ 

7.  HISTORIC INLAND WATERS.  LOUISIANA ARGUES THAT ALL THE WATERS OF
THE MISSISSIPPI RIVER DELTA, AND EAST BAY IN PARTICULAR, ARE "SO-CALLED
'HISTORIC' BAYS" WITHIN THE MEANING OF ARTICLE 7(6), /98/  AND THAT
THEY ARE THEREFORE INLAND WATERS NOTWITHSTANDING THEIR FAILURE TO MEET
THE GEOGRAPHICAL REQUIREMENTS OF ARTICLE 7 AND THE UNITED STATES'
REFUSAL TO DRAW STRAIGHT BASELINES.  /99/  HISTORIC BAYS ARE NOT
DEFINED IN THE CONVENTION, AND THE TERM THEREFORE DERIVES ITS CONTENT
FROM GENERAL PRINCIPLES OF INTERNATIONAL LAW.  /100/  AS THE ABSENCE OF
A DEFINITION INDICATES, THERE IS NO UNIVERSAL ACCORD ON THE EXACT
MEANING OF HISTORIC WATERS.  /101/  THERE IS SUBSTANTIAL AGREEMENT,
HOWEVER, ON THE OUTLINES OF THE DOCTRINE ON THE TYPE OF SHOWING WHICH A
COASTAL NATION MUST MAKE IN ORDER TO ESTABLISH A CLAIM TO HISTORIC
INLAND WATERS.  /102/  BUT BECAUSE THE CONCEPT OF HISTORIC WATERS IS
STILL RELATIVELY IMPRECISE AND ITS APPLICATION TO PARTICULAR AREAS
RAISES PRIMARILY FACTUAL QUESTIONS, WE LEAVE TO THE SPECIAL MASTER-- AS
WE DID IN UNITED STATES V. CALIFORNIA-- THE TASK OF DETERMINING IN THE
FIRST INSTANCE WHETHER ANY OF THE WATERS OFF THE LOUISIANA COAST ARE
HISTORIC BAYS.  WE DO NOT THINK THE ULTIMATE RESOLUTION OF THIS
LITIGATION WOULD BE HASTENED BY ANY FURTHER DISCUSSION OF THE SUBJECT
AT THIS TIME, BEYOND THE REMARKS BELOW. 

IN ITS EFFORT TO ESTABLISH THAT THE WATERS OF THE DELTA HAVE BEEN
SUBJECTED TO THE CONTINUOUS AUTHORITY OF THE COASTAL NATION, LOUISIANA
HAS RELIED HEAVILY ON ITS OWN ACTIVITIES AS WELL AS ON THOSE OF THE
FEDERAL GOVERNMENT.  THE UNITED STATES CONTENDS THAT THOSE STATE
ACTIVITIES CANNOT IN THIS LAWSUIT SUPPORT THE POSITION THAT THE DELTA
WATERS ARE HISTORIC BAYS.  THE ARGUMENT IS NOT THAT SUCH EXERCISES OF
AUTHORITY BY LOUISIANA WOULD NOT BE RELEVANT TO A CLAIM OF HISTORIC
TITLE VIS-A-VIS ANOTHER NATION.  ON THE CONTRARY, THE UNITED STATES HAD
"(NO DOUBT (THAT) THE NATIONAL GOVERNMENT MAY, IF IT CHOOSES, RELY ON
STATE ACTION TO SUPPORT ITS OWN HISTORIC CLAIM AS AGAINST OTHER
NATIONS."  /103/  BUT, THE UNITED STATES ASSERTS, "A STATE CANNOT
OBLIGE IT TO DO SO OR TO ACCEPT STATE ACTION AS BINDING IN A DOMESTIC
CASE SUCH AS THE PRESENT ONE."  IN BRIEF, THEN, THE UNITED STATES'
POSITION TS THAT IT CAN PREVENT JUDICIAL RECOGNITION OF A RIPENED CLAIM
TO HISTORIC TITLE MERELY BY LODGING A DISCLAIMER WITH THE COURT. 

IN UNITED STATES V. CALIFORNIA WE NOTED, BUT FOUND IT UNNECESSARY TO
PASS ON, THE UNITED STATES' CONTENTION THAT HISTORIC TITLE CANNOT BE
FOUNDED UPON EXERCISES OF STATE AUTHORITY BECAUSE A CLAIM TO HISTORIC
INLAND WATERS CAN BE MAINTAINED ONLY IF ENDORSED BY THE UNITED STATES. 
WE THERE SUSTAINED THE MASTER'S DETERMINATION THAT, EVEN ASSUMING THE
RELEVANCE OF CALIFORNIA'S ASSERTIONS OF SOVEREIGNTY OVER THE COASTAL
WATERS, THEY DID NOT ESTABLISH HISTORIC TITLE.  THE UNITED STATES'
DISCLAIMER WAS CREDITED ONLY BECAUSE THE CASE PRESENTED SUCH
"QUESTIONABLE EVIDENCE OF CONTINUOUS AND EXCLUSIVE ASSERTIONS OF
DOMINION."  381 U.S.,AT 175.  AND WE NOTED THAT WE WERE RELUCTANT TO
HOLD THAT SUCH A DISCLAIMER WOULD BE DECISIVE IN ALL CIRCUMSTANCES, FOR
A CASE MIGHT ARISE IN WHICH THE HISTORIC EVIDENCE WAS CLEAR BEYOND
DOUBT."  IBID.  THUS, THE COURT INDICATED ITS UNWILLINGNESS TO GIVE THE
UNITED STATES THE SAME COMPLETE DISCRETION TO BLOCK A CLAIM OF HISTORIC
INLAND WATERS AS IT POSSESSES TO DECLINE TO DRAW STRAIGHT BASELINES. 

WHILE WE DO NOT NOW DECIDE THAT LOUISIANA'S EVIDENCE OF HISTORIC
WATERS IS "CLEAR BEYOND DOUBT," NEITHER ARE THE UNITED STATES'
DISCLAIMER IS CONCLUSIVE.  WE DO DECIDE, HOWEVER, THAT THE SPECIAL
MASTER SHOULD CONSIDER STATE EXERCISES OF DOMINION AS RELEVANT TO THE
EXISTENCE OF HISTORIC TITLE.  THE CONVENTION WAS, OF COURSE, DESIGNED
WITH AN EYE TO AFFAIRS BETWEEN NATIONS RATHER THAN DOMESTIC DISPUTES. 
BUT, AS WE SUGGESTED IN UNITED STATES V. CALIFORNIA, IT WOULD BE
INEQUITABLE IN ADAPTING THE PRINCIPLES OF INTERNATIONAL LAW TO THE
RESOLUTION OF A DOMESTIC CONTROVERSY, TO PERMIT THE NATIONAL GOVERNMENT
TO DISTORT THOSE PRINCIPLES, IN THE NAME OF ITS POWER OVER FOREIGN
RELATIONS AND EXTERNAL AFFAIRS, BY DENYING ANY EFFECT TO PAST EVENTS. 
/104/  THE ONLY FAIR WAY TO APPLY THE CONVENTION'S RECOGNITION OF
HISTORIC BAYS TO THIS CASE, THEN, IS TO TREAT THE CLAIM OF HISTORIC
WATERS AS IF IT WERE BEING MADE BY THE NATIONAL SOVEREIGN AND OPPOSED
BY ANOTHER NATION.  THE THE EXTENT THE UNITED STATES COULD RELY ON
STATE ACTIVITIES IN ADVANCING SUCH A CLAIM, THEY ARE RELEVANT TO THE
DETERMINATION OF THE ISSUE IN THIS CASE. 

        III. 

IN DUE COURSE A SPECIAL MASTER WILL BE APPOINTED BY THE COURT TO
MAKE A PRELIMINARY DETERMINATION, CONSISTENT WITH THIS OPINION, OF THE
PRECISE BOUNDARIES OF THE SUBMERGED LANDS OWNED BY LOUISIANA IN THE
GULF OF MEXICO. 

              IT IS SO ORDERED. 

(MAP OF LOUISIANA COAST FOLLOWS THIS PAGE.) 

/1/  67 STAT. 29, 43 U.S.C. 1301-1315. 

/2/  THE SUBMERGED LANDS ACT WAS ENACTED IN RESPONSE TO THE COURT'S
DECISIONS IN UNITED STATES V. CALIFORNIA, 332 U.S. 19, UNITED STATES V.
TEXAS, 339 U.S. 707, AND UNITED STATES V. LOUISIANA, 339 U.S. 699, THAT
THE STATES DID NOT OWN THE SUBMERGED LANDS OFF THEIR COASTS AND THAT
THE UNITED STATES HAD PARAMOUNT RIGHTS IN SUCH LANDS.  AFTER ENACTMENT
OF THE SUBMERGED LANDS ACT, THE UNITED STATES COMMENCED THIS ACTION
AGAINST LOUISIANA, INVOKING OUR ORIGINAL JURISDICTION UNDER ART. III,
SEC. 2, OF THE CONSTITUTION, AND SEEKING A DECLARATION THAT IT WAS
ENTITLED TO EXCLUSIVE POSSESSION OF AND POWER OVER THE LANDS UNDERLYING
THE GULF OF MEXICO MORE THAN THREE GEOGRAPHICAL MILES FROM THE COAST. 

/3/  364 U.S. 502, 503; 43 U.S.C. 1301(C). 

/4/  364 U.S.,AT 504. 

/5/  BY ORDER OF THE COURT, THE UNITED STATES' ORIGINAL SUIT AGAINST
LOUISIANA WAS BROADENED TO INCLUDE THE OTHER GULF STATES AS
DEFENDANTS.  354 U.S. 515.  IN CONNECTION WITH THE SUPPLEMENTAL DECREES
NOW PROPOSED BY THE UNITED STATES AND LOUISIANA, TEXAS AND MISSISSIPPI
HAVE FILED MOTIONS SEEKING AN ORDER ELIMINATING FROM CONSIDERATION ANY
ISSUE WITH RESPECT TO THE LATERAL BOUNDARIES BETWEEN LOUISIANA AND
THOSE STATES.  WHILE WE HAVE FOUND IT UNNECESSARY TO ENTER ANY SUCH
FORMAL ORDER, IT IS EVIDENT THAT THE DECREE WHICH WILL BE ENTERED AT
THIS STAGE OF THE CASE WILL DECIDE ONLY THE RIGHTS OF LOUISIANA AND THE
UNITED STATES AND WILL NOT AFFECT ANY LATERAL BOUNDARIES BETWEEN THE
STATES. 

/6/  A SUPPLEMENTAL DECREE WAS ENTERED IN 1965 WITH THE CONSENT OF
THE PARTIES REMOVING SEVERAL LARGE AREAS FROM DISPUTE.  THE DECREE ALSO
DIRECTED AN ACCOUNTING AND DISTRIBUTION OF FUNDS COLLECTED FROM THOSE
AREAS UNDER THE 1956 INTERIM AGREEMENT BETWEEN THE PARTIES GOVERNING
THE ADMINISTRATION OF DISPUTED AREAS.  383 U.S. 288. 

/7/  (1964) 15 U.S.T.(PT. 2) 1607, T.I.A.S. NO. 5639.  THE
CONVENTION WAS THE CULMINATION OF LONG YEARS OF WORK BY THE
INTERNATIONAL LAW COMMISSION.  ESTABLISHED BY THE UNITED NATIONS
GENERAL ASSEMBLY IN 1947 TO CODIFY INTERNATIONAL LAW, THE COMMISSION
BEGAN DELIBERATIONS ON THE REGIME OF THE TERRITORIAL SEA IN 1952 ON THE
BASIS OF A REPORT SUBMITTED BY THE SPECIAL RAPPORTEUR.  AT ITS EIGHTH
SESSION IN 1956 THE COMMISSION ADOPTED A FINAL REPORT, WHICH CONTAINED
A PROPOSED INTERNATIONAL CONVENTION AND RECOMMENDED THE CONVOCATION OF
AN INTERNATIONAL CONFERENCE TO EXAMINE FURTHER THE LAW OF THE SEA.  THE
GENERAL ASSEMBLY ADOPTED THAT RECOMMENDATION AND IN 1958 CONVENED THE
FIRST U.N. CONFERENCE ON THE LAW OF THE SEA IN GENEVA.  WITH THE
INTERNATIONAL LAW COMMISSION REPORT AS ITS MODEL, THE CONFERENCE
PROMULGATED THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS
ZONE AND THREE OTHER CONVENTIONS DEALING WITH OTHER PROBLEMS OF
INTERNATIONAL MARITIME LAW.  SEE 1 A. SHALOWITZ, SHORE AND SEA
BOUNDARIES 203-211 (1962). 

/8/  13 STAT. 58, CODIFIED AS R.S. SEC. 4233. 

/9/  ACT OF MARCH 3, 1885, 23 STAT. 438. 

/10/  23 STAT. 442. 

/11/  ACT OF AUGUST 19, 1890, 26 STAT. 320. 

/12/  26 STAT. 328. 

/13/  THE INLAND RULES ARE NOW CODIFIED AT 33 U.S.C. 152-232 AND THE
INTERNATIONAL RULES AT 33 U.S.C. 1051-1094. 

/14/  ACT OF FEBRUARY 19, 1895, 28 STAT. 672. 

/15/  THE AUTHORITY GIVEN TO THE SECRETARY OF THE TREASURY IN THE
1895 ACT WAS SUCCESSIVELY TRANSFERRED:  (1) TO THE SECRETARY OF
COMMERCE AND LABOR (ACT OF FEBRUARY 14, 1903, 32 STAT. 829), LATER
REDESIGNATED "SECRETARY OF COMMERCE" (ACT OF MARCH 4, 1913, 37 STAT.
736); (2) TO THE COMMANDANT OF THE COAST GUARD (REORGANIZATION PLAN NO.
3 OF 1946, 60 STAT. 1097); (3) TO THE SECRETARY OF THE TREASURY (OR TO
THE SECRETARY OF THE NAVY WHEN THE COAST GUARD IS OPERATING IN THAT
DEPARTMENT (REORGANIZATION PLAN NO. 26 OF 1950, 64 STAT.1280)), AND
DELEGATED BY THE SECRETARY OF THE TREASURY TO THE COMMANDANT OF THE
COAST GUARD (TREASURY DEPARTMENT ORDER OF JULY 31, 1950, 15 FED.REG. 
6521).  SECTION 6(B)(1) OF THE DEPARTMENT OF TRANSPORTATION ACT, 80
STAT.938, TRANSFERRED THIS AUTHORITY TO THE SECRETARY OF
TRANSPORTATION, EFFECTIVE APRIL 1, 1967 (EXEC. ORDER NO. 11340, MARCH
30, 1967, 32 FED.REG.  5453); IT WAS AGAIN DELEGATED TO THE COMMANDANT
OF THE COAST GUARD, EFFECTIVE APRIL 1, 1967 (49 CFR 1.4(A)(2), 32
FED.REG.  5606). 

/16/  12 FED.REG.  8458, 8460 (1947). 

/17/  18 FED.REG.  7893 (1953). 

/18/  LOUISIANA ACT NO. 33 OF 1954.  THE "INLAND WATER LINE" IS
DELINEATED ON THE MAP OF THE LOUISIANA COAST APPENDED TO THIS OPINION,
FOLLOWING P. 78. 

/19/  IN UNITED STATES V. CALIFORNIA, 381 U.S. 139, NEITHER PARTY
SUGGESTED TO THE COURT THAT THE "INLAND WATER LINE" HAD ANY RELEVANCE
TO THE SUBMERGED LANDS ACT.  INDEED, BOTH SPECIFICALLY DISCLAIMED ANY
RELIANCE ON IT. 

/20/  HEARINGS ON S.J. RES. NO. 13 AND OTHER BILLS BEFORE THE SENATE
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, 83D CONG., 1ST SESS., 276
(1953).  IN HEARINGS ON PROPOSED SUBMERGED LANDS LEGISLATION IN EARLIER
CONGRESSES, REPRESENTATIVES OF LOUISIANA HAD ARGUED TO CONGRESS THAT
THE ADMINISTRATION BILLS WERE "IN ERROR" BECAUSE THEY OVERLOOKED THE
FACT THAT, BY THE "INLAND WATER LINE," "THE INLAND WATERS OF COASTAL
STATES HAVE ALREADY BEEN DEFINED AND DIVIDED."  HEARINGS ON S. 155 AND
OTHER BILLS BEFORE THE SENATE COMMITTEE ON INTERIOR AND INSULAR
AFFAIRS, 81ST CONG., 1ST SESS., 194 (1949).  SEE ALSO ID., AT 179-180;
HEARINGS ON H.R. 5991 AND H.R. 5992 BEFORE SUBCOMMITTEE NO. 1 OF THE
HOUSE COMMITTEE ON THE JUDICIARY, 81ST CONG., 1ST SESS., 74-75 (1949). 

/21/  ALSO WITHOUT SUBSTANCE IS LOUISIANA'S CLAIM THAT THE UNITED
STATES CANNOT ALTER THE BOUNDARY ADOPTED BY LOUISIANA IN 1954.  THE
QUESTION BEFORE US IS THE LOCATION OF THE BOUNDARY OF LAND QUITCLAIMED
TO LOUISIANA BY THE UNITED STATES IN 1953, AND THAT QUESTION IS OF
COURSE NOT AFFECTED BY ANY SUBSEQUENT ACTION OF THE LOUISIANA
LEGISLATURE.  AS WE STATED IN AN EARLIER DISPUTE BETWEEN THESE PARTIES,
"(WE INTIMATE NO OPINION ON THE POWER OF A STATE TO EXTEND, DEFINE, OR
ESTABLISH ITS EXTERNAL TERRITORIAL LIMITS OR ON THE CONSEQUENCES OF ANY
SUCH EXTENSION VIS A VIS PERSONS OTHER THAN THE UNITED STATES OR THOSE
ACTING ON BEHALF OF OR PURSUANT TO ITS AUTHORITY.  THE MATTER OF STATE
BOUNDARIES HAS NO BEARING ON THE PRESENT PROBLEM."  UNITED STATES V.
LOUISIANA, 339 U.S. 699, 705. 

/22/  ARTICLE 7 SETS FORTH PRECISE MATHEMATICAL REQUIREMENTS WHICH
BAYS MUST SATISFY TO QUALIFY AS INLAND WATERS FROM WHOSE SEAWARD EDGE
THE TERRITORIAL SEA EXTENDS.  SEE INFRA, AT 48; N. 64, AT 49; 52, N.
68; 54-55.  PARAGRAPH 6 OF THE ARTICLE PROVIDES, HOWEVER, THAT "(THE
FOREGOING PROVISIONS SHALL NOT APPLY TO SO-CALLED 'HISTORIC'  BAYS . .
. ." 

/23/  ON THE THREEFOLD DIVISION OF THE SEA, SEE GENERALLY L.
BOUCHEZ, THE REGIME OF BAYS IN INTERNATIONAL LAW 4-5 (1964); 1
SHALOWITZ, SUPRA, N. 7, AT 22-24; M. STROHL, THE INTERNATIONAL LAW OF
BAYS 3-4 (1963). 

/24/  THE BREADTH OF THE TERRITORIAL SEA VARIES FROM COUNTRY TO
COUNTRY, DEPENDING ON THE CLAIMS OF THE COASTAL STATE.  THESE CLAIMS
HAVE LONG BEEN SO DIVERSE THAT THE GENEVA CONFERENCE WAS UNABLE TO
AGREE UPON A UNIFORM DISTANCE FOR PURPOSES OF THE CONVENTION ON THE
TERRITORIAL SEA AND THE CONTIGUOUS ZONE.  A TABLE ILLUSTRATING THE
VARIOUS TERRITORIAL SEA CLAIMS OF MOST NATIONS APPEARS AT 1 SHALOWITZ,
SUPRA, N. 7, AT 389 (APP. J.). 

/25/  ARTICLE 14 OF THE CONVENTION ON THE TERRITORIAL SEA AND THE
CONTIGUOUS ZONE PROVIDES THAT "SHIPS OF ALL STATES, WHETHER COASTAL OR
NOT, SHALL ENJOY THE RIGHT OF INNOCENT PASSAGE THROUGH THE TERRITORIAL
SEA." 

/26/  ARTICLE 2 OF THE CONVENTION ON THE HIGH SEAS PROVIDES:  "THE
HIGH SEAS BEING OPEN TO ALL NATIONS, NO STATE MAY VALIDLY PURPORT TO
SUBJECT ANY PART OF THEM TO ITS SOVEREIGNTY."  (1962) 13 U.S.T.(PT. 2)
2313, T.I.A.S. NO. 5200.  IT HAS, HOWEVER, GENERALLY BEEN THOUGH THAT
THE COASTAL NATION CAN EXERCISE SOME LIMITED JURISDICTION OVER SHIPS
BEYOND ITS TERRITORIAL WATERS.  SEE, E.G., M. MCDOUGAL & W. BURKE, THE
PUBLIC ORDER OF THE OCEANS, C. 6 (1962); P. JESSUP, THE LAW OF
TERRITORIAL WATERS AND MARITIME JURISDICTION 75-112 (1927); 1
SHALOWITZ, SUPRA, N. 7, AT 27.  THE CONVENTION ON THE TERRITORIAL SEA
AND THE CONTIGUOUS ZONE HAS RECOGNIZED THAT SUCH EXTENSIONS OF
JURISDICTION ARE SOMETIMES IMPERATIVE AND HAS PROVIDED THAT IN A
CONTIGUOUS ZONE NOT TO EXCEED 12 MILES FROM THE COAST, THE LITTORAL
NATION "MAY EXERCISE THE CONTROL NECESSARY TO: (A) PREVENT INFRINGEMENT
OF ITS CUSTOMS, FISCAL, IMMIGRATION OR SANITARY REGULATIONS WITHIN ITS
TERRITORY OR TERRITORIAL SEA; (B) PUNISH INFRINGEMENT OF THE ABOVE
REGULATIONS COMMITTED WITHIN ITS TERRITORY OR TERRITORIAL SEA." 
ARTICLE 24.     /27/  A RECENT UNITED NATIONS STUDY RECOMMENDED BY THE
INTERNATIONAL LAW COMMISSION REACHED THE FOLLOWING CONCLUSIONS:  "THERE
SEEMS TO BE FAIRLY GENERAL AGREEMENT THAT AT LEAST THREE FACTORS HAVE
TO BE TAKEN INTO CONSIDERATION IN DETERMINING WHETHER A STATE HAS
ACQUIRED A HISTORIC TITLE TO A MARITIME AREA.  THESE FACTORS ARE:  (1)
THE EXERCISE OF AUTHORITY OVER THE AREA BY THE STATE CLAIMING THE
HISTORIC RIGHT; (2) THE CONTINUITY OF THIS EXERCISE OF AUTHORITY; (3)
THE ATTITUDE OF FOREIGN STATES.  FIRST, THE STATE MUST EXERCISE
AUTHORITY OVER THE AREA IN QUESTION IN ORDER TO ACQUIRE A HISTORIC
TITLE TO IT.  SECONDLY, SUCH EXERCISE OF AUTHORITY MUST HAVE CONTINUED
FOR A CONSIDERABLE TIME; INDEED IT MUST HAVE DEVELOPED INTO A USAGE. 
MORE CONTROVERSIAL IS THE THIRD FACTOR, THE POSITION WHICH THE FOREIGN
STATES MAY HAVE TAKEN TOWARDS THIS EXERCISE OF AUTHORITY.  SOME WRITERS
ASSERT THAT THE ACQUIESCENCE OF OTHER STATES IS REQUIRED FOR THE
EMERGENCE OF AN HISTORIC TITLE; OTHERS THINK THAT ABSENCE OF OPPOSITION
BY THESE STATES IS SUFFICIENT."  JURIDICAL REGIME OF HISTORIC WATERS,
INCLUDING HISTORIC BAYS, (1962) 2 Y.B.INT'L L.COMM'N 1, 13, U.N. DOC.
A/CN.4/143 (1962).  SEE ALSO BOUCHEZ, SUPRA, N. 23, AT 203, 281. 

/28/  HISTORIC TITLE CAN BE OBTAINED OVER TERRITORIAL AS WELL AS
INLAND WATERS WATERS, DEPENDING ON THE KIND OF JURISDICTION EXERCISED
OVER THE AREA.  "IF THE CLAIMANT STATE EXERCISED SOVEREIGNTY AS OVER
INTERNAL WATERS, THE AREA CLAIMED WOULD BE INTERNAL WATERS, AND IF THE
SOVEREIGNTY EXERCISED WAS SOVEREIGNTY AS OVER THE TERRITORIAL SEA, THE
AREA WOULD BE TERRITORIAL SEA."  JURIDICAL REGIME OF HISTORIC WATERS,
INCLUDING HISTORIC BAYS, SUPRA, N. 27, AT 23. 

/29/  MODERN AUTHORITIES ARE UNANIMOUS ON THIS PRINCIPLE.  THUS,
JESSUP STATES THAT "(IT SEEMS CLEAR THAT EVEN TRANSIENT VESSELS MUST
OBEY REASONABLE RULES AND REGULATIONS LAID DOWN BY THE LITTORAL STATE
IN THE INTERESTS OF SAFETY OF NAVIGATION AND MARITIME POLICE."  AND HE
CITES THE UNITED STATES INLAND RULES AS AN EXAMPLE OF SUCH REGULATION
OF THE TERRITORIAL SEA.  JESSUP, SUPRA, N. 26, AT 121, 122, N. 37. 
SHALOWITZ ALSO CONCLUDES THAT THE RIGHT OF INNOCENT PASSAGE THROUGH THE
TERRITORIAL SEA "MAY BE CONDITIONED UPON THE OBSERVANCE OF SPECIAL
REGULATIONS LAID DOWN BY THE COASTAL NATION FOR THE PROTECTION OF
NAVIGATION . . . AND OTHER LOCAL INTERESTS."  1 SHALOWITZ, SUPRA, N. 7,
AT 23.  SEE ALSO BOGGS, DELIMITATION OF THE TERRITORIAL SEA, 24
AM.J.INT'L L. 541, 542 (1930); 3 G.GIDEL, LE DROIT INTERNATIONAL PUBLIC
DE LA MER 633 (1934); STROHL, SUPRA, N. 23, AT 273, 275. 

J. GRIFFIN, THE AMERICAN LAW OF COLLISION (1949) IS SAID BY
LOUISIANA TO BE TO THE CONTRARY.  REFERRING TO THE "INLAND WATER LINE,"
THE AUTHOR STATES THAT "(THE INLAND RULES APPLY TO VESSELS OF ANY
NATIONALITY, SINCE THE UNITED STATES HAS FULL JURISDICTION OVER THE
WATERS IN QUESTION."  ID., AT 11-12.  IT IS CLEAR, HOWEVER, THAT THE
JURISDICTION TO WHICH THE AUTHOR REFERS IS NOT THE TOTAL SOVEREIGNTY OF
A COASTAL NATION OVER ITS INLAND WATERS, BUT RATHER THE CONTROL OF THE
TERRITORIAL SEA.  THUS, HE NOTES EARLIER THAT THE INLAND RULES GOVERN
"CASES ARISING ON COASTAL AND INLAND WATERS OF THE UNITED STATES WHICH
ARE SUBJECT TO ADMIRALTY JURISDICTION."  ID., AT 8. 

THIS INTERNATIONAL UNDERSTANDING IS NOT A RECENT DEVELOPMENT.  AT
THE TIME CONGRESS ENACTED THE INLAND AND INTERNATIONAL RULES, THERE WAS
ALSO NO DISPUTE ABOUT A COASTAL NATION'S POWER TO REGULATE NAVIGATION
IN ITS TERRITORIAL SEA.  AT THE 1895 MEETING OF THE INTERNATIONAL LAW
ASSOCIATION, RULES RELATING TO THE TERRITORIAL SEA WERE ADOPTED.  A SIX
MILE TERRITORIAL SEA WAS AGREED UPON, IN WHICH ALL NATIONS WOULD HAVE
THE RIGHT OF INNOCENT PASSAGE.  ARTICLE 7 THEN PROVIDED: 

"SHIPS WHICH PASS THROUGH TERRITORIAL WATERS SHALL CONFORM TO THE
SPECIAL REGULATIONS DECREED BY THE LITTORAL STATE IN THE INTEREST AND
FOR THE SECURITY OF NAVIGATION OR AS MATTER OF MARITIME POLICE." 
REPORT OF THE SEVENTEENTH CONFERENCE OF THE INTERNATIONAL LAW
ASSOCIATION HELD IN BRUSSELS, OCTOBER 1895 (1896), EXCERPTED IN H.
CROCKER, EXTENT OF THE MARGINAL SEA 178 (1919).  AN IDENTICAL ARTICLE
HAD BEEN APPROVED IN1894 BY THE INSTITUTE OF INTERNATIONAL LAW AT
PARIS.  ID., AT 149.  AND INDIVIDUAL AUTHORS OF THE DAY OFTEN EXPRESSED
THIS PRINCIPLE.  SEE THE FOLLOWING WORKS EXCERPTED IN CROCKER:
BLUNTSCHLI, LE DROIT INTERNATIONAL CODIFIE (5TH ED. 1895), IN CROCKER,
AT 10; CALVO, LE DROIT INTERNATIONAL THEORIQUE ET PRATIQUE (5TH ED.
1896), IN CROCKER, AT 33; FIORE, INTERNATIONAL LAW CODIFIED AND ITS
LEGAL SANCTION, OR THE LEGAL ORGANIZATION OF THE SOCIETY OF STATES
(1918), IN CROCKER, AT 58; LATOUR, LA MER TERRITORIALE AU PONT DE VUE
THEORIQUE ET PRATIQUE (1889), IN CROCKER, AT 237-238; VON LISZT, DAS
VOLKERRECHT (5TH ED. 1907), IN CROCKER, AT 293; NUGER, DES DROITS DE
L'ETAT SUR LA MER TERRITORIALE (1887), IN CROCKER, AT 304; PERELS,
MANUEL DE DROIT MARITIME INTERNATIONAL (1884), IN CROCKER, AT 352-353;
SCHUCKING, DAS KUSTENMEER INTERNATIONALEN RECHTE (1897), IN CROCKER, AT
436-437. 

THE 1930 CONFERENCE AT THE HAGUE ALSO HAD NO DOUBT OF THE POWER OF
THE COASTAL NATION TO REGULATE NAVIGATION IN THE TERRITORIAL SEA. 
ARTICLE 6 OF ITS PROPOSED CODIFICATION STATED: 

"FOREIGN VESSELS EXERCISING THE RIGHT OF PASSAGE SHALL COMPLY WITH
THE LAWS AND REGULATIONS ENACTED IN CONFORMITY WITH INTERNATIONAL USAGE
BY THE COASTAL STATE, AND, IN PARTICULAR, AS REGARDS:

"(A) THE SAFETY OF TRAFFIC AND THE PROTECTION OF CHANNELS AND BUOYS
. . . ." 

AND THE COMMENTARY TO THIS ARTICLE STATED THAT "(INTERNATIONAL LAW
HAS LONG RECOGNISED THE RIGHT OF THE COASTAL STATE TO ENACT, IN THE
GENERAL INTEREST OF NAVIGATION, SPECIAL REGULATIONS APPLICABLE TO
VESSELS EXERCISING THE RIGHT OT OF PASSAGE THROUGH THE TERRITORIAL
SEA."  3 ACTS OF THE CONFERENCE FOR THE CODIFICATION OF INTERNATIONAL
LAW, TERRITORIAL WATERS 214 (1930). 

/30/  THE RECENT UNITED NATIONS STUDY OF THE CONCEPT OF HISTORIC
WATERS CONCLUDED THAT "IF THE CLAIMANT STATE ALLOWED THE INNOCENT
PASSAGE OF FOREIGN SHIPS THROUGH THE WATERS CLAIMED, IT COULD NOT
ACQUIRE AN HISTORIC TITLE TO THESE WATERS AS INTERNAL WATERS, ONLY AS
TERRITORIAL SEA."  JURIDICAL REGIME OF HISTORIC WATERS, INCLUDING
HISTORIC BAYS, SUPRA, N. 27, AT 23.  UNDER THAT TEST, SINCE THE UNITED
STATES HAS NOT CLAIMED THE RIGHT TO EXCLUDE FOREIGN VESSELS FROM WITHIN
THE "INLAND WATER LINE," THAT LINE COULD AT MOST ENCLOSE HISTORIC
TERRITORIAL WATERS. 

/31/  CF. BOUCHEZ, SUPRA, N. 23, AT 227, 249; STROHL, SUPRA, N. 23,
AT 293. 

/32/  INLAND RULES:  ACT OF MAY 21, 1948, 62 STAT. 249; ACT OF AUGUST
8, 1953, 67 STAT. 497.  INTERNATIONAL RULES:  ACT OF OCTOBER 11, 1951,
65 STAT. 406; ACT OF SEPTEMBER 24, 1963, 77 STAT. 194. 

/33/  18 FED.REG.7893 (1953). 

/34/  ADMIRALTY LAW ENFORCEMENT 25-26 (1943).  SEE ALSO THE COAST
GUARD LAW ENFORCEMENT MANUAL 3-7 (1954): "THE DIVIDING LINE BETWEEN
INLAND AND INTERNATIONAL WATERS AS ESTABLISHED BY THE COMMANDANT, FOUND
IN 33 CFR 82, IS USED ONLY FOR THE PURPOSE OF THE RULES OF THE ROAD,
AND THE ENFORCEMENT OF THE INLAND RULES OF THE ROAD.  IT HAS NO
CONNECTION WITH TERRITORIAL WATERS, OR HIGH SEAS, OR OTHER TERMS
DENOTING GENERAL JURISDICTION."  THE MANUAL SELECTED MATERIALS ON COAST
GUARD LAW ENFORCEMENT 4-5 (1964) IS TO THE SAME EFFECT: 

"THE LINE ESTABLISHED BY THE COMMANDANT OF THE COAST GUARD HAS NO
SIGNIFICANCE WITH RESPECT TO OR DEPENDENCE ON THE LINE ESTABLISHING THE
LIMIT OF THE TERRITORIAL WATERS OF THE UNITED STATES.  IN SOME PLACES,
THE LINE IS INSHORE OF THE TERRITORIAL WATERS OF THE UNITED STATES
WHILE IN OTHERS, THE LINE EXTENDS WELL OUTSIDE THE TERRITORIAL LIMITS
OF THE UNITED STATES.  THE SOLE PURPOSE OF THE LINE IS TO ESTABLISH A
DIVISION LINE BETWEEN THE APPLICATION OF THE INLAND RULES AND THE
INTERNATIONAL RULES OF THE ROAD." 

AND IN THE COMMANDANT'S MOST RECENT PROPOSAL TO CHANGE THE LINE FOR
THE GULF OF MEXICO, HE OBSERVED THAT "(THE EXISTING GULF DEMARCATION
LINE EXTENDS ABOUT 30 MILES OUT INTO INTERNATIONAL WATERS, AS
RECOGNIZED BY THE STATE DEPARTMENT."  HE NOTED THAT THE PROPOSED
"RELOCATION OF THE LINE WELL WITHIN TERRITORIAL WATERS REMOVES ANY
QUESTION OF INTERNATIONAL LAW."  32 FED.REG.  8763 (1967). 

/35/  JUDICIAL AND LAY OPINION HAVE AGREED ON THE LIMITED
SIGNIFICANCE OF THE "INLAND WATER LINE."  IN DISCUSSING THE LINE IN
UNITED STATES V. NEWARK MEADOWS IMP.  PCO., 173 F. 426, 428, JUDGE
HOUGH, OF THE CIRCUIT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, SAID
IN 1909: 

"THIS LEGISLATION (THE 1895 ACT), HOWEVER, WAS FOR THE PURPOSE OF
DELIMITING THE INLAND WATERS OF THE UNITED STATES, IN ORDER TO INFORM
NAVIGATORS WHERE THE INLAND RULES OF NAVIGATION, AS DISTINGUISHED FROM
THE INTERNATIONAL RULES, BECOME APPLICABLE.  IT DOES NOT PURPORT TO
CHANGE THE BOUNDARIES OF ANY FEDERAL DISTRICT, NOR ENLARGE THE
JURISDICTION OF ANY PARTICULAR FEDERAL COURT . . . ."  LOUISIANA RELIES
ON THE DECISION OF THIS COURT IN THE DELAWARE, 161 U.S. 459, WHERE IT
WAS HELD THAT THE INLAND RULES SHOULD GOVERN A COLLISION IN THE GEDNEY
CHANNEL OFF NEW YORK HARBOR.  REFERRING TO THE "INLAND WATER 'LINE,"
THE COURT STATED THAT THE ENCLOSED WATERS WERE "AS MUCH A PART OF THE
INLAND WATERS OF THE UNITED STATES WITHIN THE MEANING OF THIS ACT AS
THE HARBOR WITHIN THE ENTRANCE."  161 U.S.,AT 463.  THE ITALICIZED
QUALIFICATION INDICATES THE COURT'S UNDERSTANDING OF THE LIMITED IMPORT
OF THE "INLAND WATER LINE." 

WRITERS WHO HAVE CONSIDERED THE QUESTION ARE UNANIMOUS THAT THE
"INLAND WATER LINE" SERVES ONLY THE PRUPOSE FOR WHICH IT WAS
AUTHORIZED.  THUS, 1 SHALOWITZ, SUPRA, N. 7, AT 23, CAUTIONS THAT THE
"PHYSIOGRAPHIC CONCEPT OF THE LIMITS OF INLAND WATERS SHOULD NOT BE
CONFUSED WITH THE LINES ESTABLISHED BY THE UNITED STATES COAST GUARD TO
SEPARATE THE AREAS WHERE THE INLAND RULES OF THE ROAD APPLY FROM THOSE
TO WHICH THE INTERNATIONAL RULES APPLY.  THESE LINES ARE ESTABLISHED
FOR ADMINISTRATIVE PURPOSES AND HAVE BEEN HELD TO HAVE NO APPLICATION
OTHER THAN THE SPECIFIC PURPOSE OF DETERMINING WHAT RULES OF NAVIGATION
ARE TO BE FOLLOWED."  SIMILARLY, STROHL, SUPRA, N. 23, AT 4, N. 5,
WARNS THAT "(CARE SHOULD BE EXERCISED NOT TO CONFUSE THE TERM 'INTERNAL
WATERS' IN THE CONTEXT OF (INTERNATIONAL TERRITORIAL LAW) WITH THE TERM
'INLAND WATERS' AS USED BY MARINERS ENTERING UNITED STATES COASTAL
WATERS, WHERE IN CERTAIN LOCALITIES THEY ARE REQUIRED TO OPERATE UNDER
WHAT ARE CALLED INLAND RULES OF THE ROAD . . . . THE BOUNDARY LINES FOR
'INLAND WATERS' WITHIN THE MEANING OF UNITED STATES INLAND RULES OF THE
ROAD DO NOT NECESSARILY COINCIDE WITH THE BASE LINES DELIMITING THE
REGIME OF INTERNAL WATERS AS UNDERSTOOD IN GENERAL INTERNATIONAL LAW." 

/36/  ON THE CONTRARY, THE TITLES OF THE ACTS AND STATEMENTS IN THE
LEGISLATIVE HISTORY ILLUSTRATE THAT CONGRESS' ONLY CONCERN WAS WITH THE
REGULATION OF NAVIGATION.  E.G., S. EX. DOC. NO. 35, 53D CONG., 3D
SESS., 2 (1895).  THE PROVISION FOR THE DELINEATION OF AN "INLAND WATER
LINE" WAS AN AFTERTHOUGHT, ADDED "AT THE REQUEST OF THE MARITIME
INTERESTS OF NEW YORK AND PHILADELPHIA."  27 CONG.REC.  2059 (1895). 

LOUISIANA ARGUES THAT SINCE ARTICLE 30 OF THE 1889 INTERNATIONAL
MARINE CONFERENCE EXCEPTED FROM THE INTERNATIONAL RULES ONLY SPECIAL
RULES FOR "INLAND WATERS," THE CONFERENCE AND CONGRESS MUST HAVE
BELIEVED THAT THE POWER OF THE COASTAL NATION EXTENDED ONLY TO THOSE
EXCEPTED AREAS.  IT IS CLEAR, HOWEVER, THAT BOTH THE CONFERENCE AND
CONGRESS RECOGNIZED THE ALREADY PREVAILING PRINCIPLE OF INTERNATIONAL
LAW (SEE SUPRA, N. 29) THAT THE COASTAL NATION HAD THE POWER TO
REGULATE NAVIGATION IN THE TERRITORIAL SEA.  BUT THEY DECIDED THAT IT
WOULD BE PREFERABLE TO HAVE STANDARD INTERNATIONAL RULES, INSOFAR AS
PRACTICABLE, ON ALL NAVIGABLE WATERS, SINCE THERE WERE RARELY WELL
MARKED LINES DIVIDING NATIONAL WATERS FROM THE HIGH SEAS.  SEE
PROTOCOLS OF PROCEEDINGS OF THE INTERNATIONAL MARINE CONFERENCE IN
WASHINGTON, D.C., IN 1889, S. EX. DOC. NO. 53, 51ST CONG., 1ST SESS.,
21-22, 25, 65-66, 127-128, 579, 730 (1890); H.R. REP. NO. 731, 48TH
CONG., 1ST SESS., 2 (1884). 

/37/  THERE HAVE BEEN, FOR EXAMPLE, SEVERAL RECENT CHANGES IN THE
LINES.  SEE, E.G., 31 FED.REG.  4401, 10322 (1966); 32 FED.REG.  7127
(1967); 33 FED.REG.  8273 (1968).  THE STATE PURPOSE OF ONE OF THE 1966
CHANGES WAS "TO BRING THE REGULATIONS UP TO DATE WITH IDENTIFICATION OF
AIDS TO NAVIGATION."  31 FED.REG.  4401.  WHEN THE COMMANDANT OF THE
COAST GUARD PROPOSED THE 1953 CHANGES "(THESE LINES ARE BASED ON THE
NEEDS OF SAFETY IN NAVIGATION."  18 FED.REG.  2556 (1953 .  AND WHEN
THE 1953 LINE WAS FINALLY ADOPTED, HE STATED: "THE COMMENTS, DATA, AND
VIEWS SUBMITTED WHICH WERE BASED ON REASONS NOT DIRECTLY CONNECTED WITH
PROMOTING SAFE NAVIGATION WERE REJECTED. 

"THE ESTABLISHMENT OF DESCRIPTIVE LINES OF DEMARCATION IS SOLELY FOR
PURPOSES CONNECTED WITH NAVIGATION AND SHIPPING."  18 FED.REG.  7893
(1953).  SIMILARLY, WHEN THE COMMANDANT PROPOSED CHANGES IN THE LINE IN
1967, HIS REASON WAS THAT "(THE PRESENT DEMARCATION LINE IS NOT EASILY
LOCATED AND THEREFORE IS NOT SERVING ITS PURPOSE OF INFORMING MARINERS
ABOUT THE RULES OF THE ROAD APPLICABLE TO THEIR PRESENT POSITIONS."  32
FED.REG.  8763 (1967).  THE PROPOSED MODIFICATIONS WERE WITHDRAWN AFTER
EXTENDED HEARINGS.  THE NOTICE OF WITHDRAWAL CONTAINED THE FOLLOWING
COMMENT ON SOME OF THE EVIDENCE ADDUCED AT THOSE HEARINGS:     "A
NUMBER OF COMMENTS AND VIEWS SUBMITTED DID NOT ADDRESS THEMSELVES TO
THE PURPOSE FOR WHICH THE LINE OF DEMARCATION IS AUTHORIZED UNDER 33
U.S.C. 151, BUT TO OTHER SUBJECTS, INCLUDING STATE BOUNDARIES, STATE
RIGHTS, FISHING RIGHTS, ETC.  THESE COMMENTS AND VIEWS WERE NOT
CONSIDERED AS GERMANE TO THE PROPOSALS UNDER CONSIDERATION AND NO
ACTION IS TAKEN WITH RESPECT THERETO."  32 FED.REG.  14775(1967). 

THE ONLY ALLEGED DEPARTURE FROM THIS CONSTRUCTION OF THE "INLAND
WATER LINE" IS ONE IN A SET OF COAST GUARD ORDERS OF MAY 20, 1925
(I.E., DURING THE PROHIBITION ERA), PURPORTING TO AUTHORIZE LAW
ENFORCEMENT IN THE "TERRITORIAL WATERS" OF THE UNITED STATES. 
"TERRITORIAL WATERS" WERE DEFINED AS COMPRISING "ALL WATERS WITHIN A
RADIUS OF THREE NAUTICAL MILES FROM THE 'COAST' OF THE UNITED STATES .
. . AND ALL WATERS INSHORE OF THE LINES DESIGNATED AND DEFINED BY THE
SECRETARY OF COMMERCE . . . AS LIMITING THE 'INLAND WATERS' OF THE
UNITED STATES."  THIS DEFINITION IS FOUND IN A COAST GUARD MANUAL FOR
OFFICIAL USE ONLY ENTITLED LAW ENFORCEMENT AT SEA RELATIVE TO SMUGGLING
2 (1932).  WHILE THE ORDERS DO ATTACH TO THE "INLAND WATER LINE" A
JURISDICTIONAL SIGNIFICANCE BEYOND THE REGULATION OF NAVIGATION, THEY
DO NOT SUPPORT LOUISIANA'S POSITION.  THE ORDERS CLEARLY EQUATED
"INLAND WATERS" TO THE TERRITORIAL SEA. 

/38/  LETTER FROM W. R. CASTLE, JR., TO CHARGE LUNDH, JULY 13, 1929,
IN 1 G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 645 (1940). 

/39/  LOUISIANA ARGUES THAT THE JURISDICTIONAL SIGNIFICANCE OF THE
"INLAND WATER LINE" IS EVIDENCED BY ITS ADOPTION BY CONGRESS IN SEVERAL
OTHER ACTS.  ACTS.  OFFICERS COMPETENCY CERTIFICATES ACT, 53 STAT.
1049, 46 U.S.C. 224A (12)(A); COASTWISE LOAD LINE ACT, 49 STAT. 888, 46
U.S.C. 224A (12)(A); COASTWISE LOAD LINE ACT, 49 STAT. 888, 46 U.S.C.
367.  IN ALL OF THESE STATUTES, HOWEVER, THE "INLAND WATER LINE"  IS
ADOPTED AS THE LINE SEAWARD OF WHICH THE PROVISIONS ARE TO APPLY. 
CONSEQUENTLY THEY DO NOT REPRESENT AN EXERCISE OF JURISDICTION OVER
INLAND WATERS. 

/40/  ONE CONGRESSIONAL COMMITTEE REPORT IN 1953 CONCLUDED THAT
PERHAPS THE DEFINITION OF INLAND WATERS COULD NOT BE UNIFORM,
PARTICULARLY AS TO LOUISIANA: 

"THE HEARINGS IN LOUISIANA WERE PARTICULARLY REVEALING IN REGARD TO
THE WEIGHT WHICH SHOULD BE GIVEN TO GEOGRAPHICAL FACTORS.  THE TRIP OUR
SUBCOMMITTEE TOOK BY AIR OVER THE SHORE AND COASTAL AREA OF LOUISIANA
WAS HIGHLY INFORMATIVE ON THIS SCORE.  THERE IS A STARTLING DIFFERENCE
BETWEEN THE SHORE AND COAST LINE OF LOUISIANA AND FLORIDA ON THE ONE
HAND AND THAT OF TEXAS AND CALIFORNIA, ON TH OTHER HAND.  TO SAY THAT
THESE CONTRASTING COASTAL AREAS SHOULD BE TREATED EXACTLY ALIKE WITH
REFERENCE TO THE DEFINITION OF INLAND WATERS WOULD IGNORE GEOGRAPHICAL
FACTORS THAT ARE WHOLLY DIFFERENT."  REPORT OF THE HOUSE COMMITTEE ON
INTERIOR AND INSULAR AFFAIRS, PURSUANT TO H.R. RES. NO. 676 AUTHORIZING
AN INVESTIGATION AND STUDY OF THE SEAWARD BOUNDARIES OF THE UNITED
STATES, H.R. REP. NO. 2515, 82D CONG., 2D SESS., 19 (1953).  THE
RECOMMENDATION OF THAT STUDY, HOWEVER, WAS THAT CONGRESS SHOULD ADOPT
GENERAL GUIDELINES FOR THE DEFINITION OF INLAND WATERS AND THEN
DELEGATE THE TASK OF DRAWING EXACT BOUNDARIES TO A SPECIAL COMMISSION,
AND APPROACH WHICH CONGRESS REJECTED IN THE SUBMERGED LANDS ACT.  THE
ATTORNEY GENERAL ALSO URGED CONGRESS TO DRAW "(AN ACTUAL LINE ON A MAP"
IN DEFINING STATE BOUNDARIES TO AVOID UNCERTAINTY AND EXPENSIVE
LITIGATION.  HEARINGS ON S. J. RES. NO. 13, SUPRA, N. 20, AT 926
(1953).  THIS APPROACH WAS ALSO REJECTED IN THE STATUTE AS ENACTED. 

/41/  ELEVEN SUCH DREDGED CHANNELS HAVE BEEN BROUGHT TO OUR
ATTENTION.  MOVING FROM EAST TO WEST, THEY APPEAR AT (1) THE
MISSISSIPPI RIVER-GULF OUTLET THROUGH BRETON AND CHANDELEUR SOUNDS, (2)
AND (3) SOUTH AND SOUTHWEST PASSES OF THE MISSISSIPPI RIVER, (4) THE
EMPIRE CANAL, OPENING INTO "ASCENSION BAY" (SEE INFRA, AT 48), JUST
EAST OF BASTIAN BAY, (5) THE BARATARIA BAY WATERWAY THROUGH BARATARIA
BAY AND INTO "ASCENSION BAY," (6) BELLE PASS, THE ARM OF BAYOU
LAFOURCHE JUST WEST OF BAY MARCHAND, (7) THE HOUMA NAVIGATION CANAL
THROUGH TERREBONNE BAY, (8) THE ATCHAFALAYA RIVER CHANNEL THROUGH
ATCHAFALAYA BAY, (9) THE FRESHWATER BAYOU CANAL, (10) CALCASIEU PASS,
AND (11) SABINE PASS. 

/42/  A MEMBER OF THE INTERNATIONAL LAW COMMISSION GAVE THE
FOLLOWING EXPLANATION: 

"THE COMMISSION'S RULE THAT JETTIES AND PIERS BE TREATED AS PART OF
THE COASTLINE (WAS) BASED ON THE ASSUMPTION THAT THOSE INSTALLATIONS
WOULD BE OF SUCH A TYPE AS TO CONSTITUTE A PHYSICAL PART OF SUCH
COASTLINE; IT WOULD INDEED HAVE BEEN INCONVENIENT TO TREAT THAT KIND OF
INSTALLATION OTHERWISE THAN IN THE MANNER ADVOCATED BY THE
COMMISSION."  (1955) 1 Y.B.INT'L L.COMM'N 74.  SEE ALSO E1956) 1
Y.B.INT'L L.COMM'N 193; (1954) 1 Y.B.INT'L L.COMM'N 88-89. 

THE SAME UNDERSTANDING IS REFLECTED IN THE DISCUSSIONS AT THE 1958
GENEVA CONFERENCE. 

"4.  MR. CARMONA (VENEZUELA) STRESSED THAT THE INTERNATIONAL LAW
COMMISSION HAD APPROVED THE TEXT OF ARTICLE 8 ONLY AFTER THE MOST
EXHAUSTIVE STUDY.  THE CONSTRUCTION OF HARBOUR WORKS BEING OF VITAL
IMPORTANCE NOT ONLY TO THE COASTAL STATE BUT ALSO TO THE SHIPS OF ALL
NATIONS, NO DOUBT SHOULD BE ALLOWED TO SUBSIST REGARDING THE STATUS OF
SUCH WORKS.  GOVERNMENTS WHICH HAD MADE HEAVY ECONOMIC SACRIFICES TO
SECURE THEIR PORT FACILITIES AGAINST THE ELEMENTS HAD ALWAYS ACTED ON
THE ASSUMPTION THAT THE LEGAL POSITION WAS PRECISELY AS STATED IN THE
COMMISSION'S TEXT.  IN THOSE CIRCUMSTANCES, ANY INTERFERENCE WITH THAT
TEXT MIGHT HAVE VERY SERIOUS CONSEQUENCES."  UNITED NATIONS CONFERENCE
ON THE LAW OF THE SEA, OFFICIAL RECORDS, VOL. III:  FIRST COMMITTEE
(TERRITORIAL SEA AND CONTIGUOUS ZONE), SUMMARY RECORDS OF MEETINGS AND
ANNEXES, U.N.DOC.A/CONF.  13/39, P. 142.  AND THIS VIEW COMPORTS WITH
GENERALLY ACCEPTED DEFINITIONS OF THE TERMS "HARBOUR" AND "HARBOUR
WORKS."  SEE, E.G., 1 SHALOWITZ, SUPRA, N. 7, AT 292: 

"HARBORWORKS.-- STRUCTURES ERECTED ALONG THE SEACOAST AT INLETS OR
RIVERS FOR PROTECTIVE PURPOSES, OR FOR ENCLOSING SEA AREAS ADJACENT TO
THE COAST TO PROVIDE ANCHORAGE AND SHELTER."  SEE ALSO ID., AT 60, N.
65; STROHL, SUPRA, N. 23, AT 71-72. 

/43/  (1954) 1 Y.B.INT'L L.COMM'N 88. 

/44/ ARTICLE 3 PROVIDES AS FOLLOWS: 

"EXCEPT WHERE OTHERWISE PROVIDED IN THESE ARTICLES, THE NORMAL
BASELINE FOR MEASURING THE BREADTH OF THE TERRITORIAL SEA IS THE LOW
WATER LINE ALONG THE COAST AS MARKED ON LARGE-SCALE CHARTS OFFICIALLY
RECOGNIZED BY THE COASTAL STATE." 

LOUISIANA ARGUES THAT, IN VIEW OF THE PROVISO "(EXCEPT WHERE
OTHERWISE PROVIDED IN THESE ARTICLES," THE UNITED STATES CANNOT
MAINTAIN THAT A DREDGED CHANNEL IS NOT A BASELINE JUST BECAUSE IT HAS
NO LOW-WATER LINE.  ARTICLE 8, IT IS SAID, IS ONE OF THE PROVISIONS
COVERED BY THE EXCEPTION IN ARTICLE 3.  THIS ARGUMENT, HOWEVER,
FOUNDERS ON THE LANGUAGE OF ARTICLES 3 AND 8.  THE EXCEPTION IN ARTICLE
3 REFERS TO METHODS OF DETERMINING THE BASELINE OTHER THAN BY THE LOW
WATER MARK ALONG THE COAST.  ARTICLE 8 DOES NOT PROVIDE SUCH AN
ALTERNATIVE METHOD, BUT MERELY IDENTIFIES CERTAIN STRUCTURES WHICH ARE
TO BE CONSIDERED PART OF THE COAST. 

IN THIS REGARD, THE UNITED STATES POINTS OUT THAT IF DREDGED
CHANNELS WERE REALLY "PART OF THE COAST" WITHIN ARTICLE 8, THEIR
SEAWARDMOST EXTENSIONS COULD ALSO SERVE AS HEADLANDS FROM WHICH LINES
CLOSING INDENTATIONS COULD BE DRAWN.  AS THE INTERNATIONAL LAW
COMMISSION COMMENTARY EXPLAINED, "(THE WATERS OF A PORT UP TO A LINE
DRAWN BETWEEN THE OUTERMOST INSTALLATIONS FORM PART OF THE INTERNAL
WATERS OF THE COASTAL STATE."  (1956) 2 Y.B.INT'L L. COMM'N. 270.  YET
EVEN LOUISIANA HAS RECOGNIZED THE INAPPROPRIATENESS OF USING THE ENDS
OF SUCH CHANNELS AS HEADLANDS OF BAYS. 

/45/  THE DEFINITION WAS EXPLAINED AS FOLLOWS IN H.R. REP. NO. 215,
83D CONG., 1ST SESS., 4 (1953): 

"SECTION 2(B) DEFINES 'COASTLINE' WHICH IS THE BASELINE FROM WHICH
THE STATE BOUNDARIES ARE PROJECTED SEAWARD.  IT MEANS NOT ONLY THE LINE
OF ORDINARY LOW WATER ALONG THE COAST WHICH DIRECTLY CONTACTS THE OPEN
SEA BUT IT ALSO MEANS THE LINE MARKING THE SEAWARD LIMIT OF INLAND
WATERS. 

"INLAND WATERS INCLUDE ALL PORTS, ESTUARIES, HARBORS, BAYS,
CHANNELS, STRAITS, HISTORIC BAYS, SOUNDS, AND ALSO ALL OTHER BODIES OF
WATER WHICH JOIN THE OPEN SEA." 

/46/  IN OPPOSING THE DEFINITION, SENATOR CORDON STATED: 

"I WOULD LIKE TO SEE GENERAL LANGUAGE USED FOR GENERAL PURPOSES,
REALIZING ALWAYS THE HAZARDS OF INCLUDING A FEW SPECIFIC REFERENCES AND
THEREBY EXCLUDING OTHERS, EVEN WHEN WE SEEK TO INDICATE THAT THERE ARE
OTHERS."  HEARINGS ON S.J. RES. NO. 13, SUPRA, N. 20, AT 1380.  AND THE
REPORT OF THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS ON THE
SUBMERGED LANDS ACT GAVE THIS EXPLANATION FOR ITS DELETION: 

"THE WORDS 'WHICH INCLUDE ALL ESTUARIES, PORTS, HARBORS, BAYS,
CHANNELS, STRAITS, HISTORIC BAYS, AND SOUNDS, AND ALL OTHER BODIES OF
WATER WHICH JOIN THE OPEN SEA' HAVE BEEN DELETED FROM THE REPORTED BILL
BECAUSE OF THE COMMITTEE'S BELIEF THAT THE QUESTION OF WHAT CONSTITUTES
INLAND WATERS SHOULD BE LEFT WHERE CONGRESS FINDS IT.  THE COMMITTEE IS
CONVINCED THAT THE DEFINITION NEITHER ADDS NOR TAKES AWAY ANYTHING A
STATE MAY HAVE NOW IN THE WAY OF A COAST AND THE LANDS UNDERNEATH
WATERS BEHIND IT."  S. REP. NO. 133, 83D CONG., 1ST SESS., 18 (1953). 

/47/  THE BILL, H.R. 4198, DEFINED INLAND WATERS AS INCLUDING "ALL
ESTUARIES, PORTS, HARBORS, BAYS, CHANNELS, STRAITS, HISTORIC BAYS, AND
SOUNDS, AND ALL OTHER BODIES OF WATER WHICH JOIN THE OPEN SEA."  THE
LAST PHRASE HARDLY DESCRIBES A DEEPENING OF WATER ALREADY IN THE OPEN
SEA. 

/48/  THE LOW-TIDE ELEVATIONS IN QUESTION ARE SITUATED NEAR THE
MOUTH OF ATCHAFALAYA BAY.  LOUISIANA ALSO ARGUES THAT THE UNITED STATES
HAS OVERLOOKED SOME ISLANDS WITHIN THE BAY, AND THAT LOW-TIDE
ELEVATIONS WITHIN THREE MILES OF THOSE ISLANDS SHOULD BE INCLUDED UNDER
ARTICLE 11.  THE UNITED STATES DISPUTES THE EXISTENCE OF THE ISLANDS OR
THEIR CHARACTERIZATION AS SUCH.  THE QUESTION, BEING ONE OF FACT WHICH
CANNOT BE RESOLVED ON THIS RECORD, SHOULD BE DECIDED, IF NECESSARY, BY
THE SPECIAL MASTER. 

ANOTHER FACTUAL QUESTION WHICH WE LEAVE TO THE SPECIAL MASTER CONCERNS
THE EXISTENCE OF AN ARTIFICIALLY CREATED SPOIL BANK AT PASS TANTE
PHINE, JUST TO THE NORTH OF WEST BAY.  LOUISIANA CONTENDS THAT IT IS
ABOVE WATER AT LOW TIDE, WHEREAS THE UNITED STATES ARGUES THAT WHILE IT
USED TO BE SO EXPOSED, IT IS NO LONGER.  IF THE UNITED STATES IS
CORRECT IN THIS ASSERTION, OF COURSE THE SPOIL BANK FORMS NO PART OF
THE COAST.  THE SAME WOULD BE TRUE IF THE BANK WERE SURROUNDED BY WATER
AT LOW TIDE, FOR ARTICLE 11 OF THE CONVENTION PROVIDES FOR MEASURING
THE TERRITORIAL SEA ONLY FROM THOSE LOW-TIDE ELEVATIONS WHICH ARE
"NATURALLY-FORMED AREAS)."  HOWEVER, TO THE EXTENT THAT THE SPOIL BANK
IS AN EXTENSION OF THE MAINLAND AND IS UNCOVERED AT LOW TIDE, IT MUST
BE TAKEN INTO ACCOUNT IN DRAWING THE BASELINE UNDER ARTICLE 3. 

THE UNITED STATES CONTENDS THAT THE SPOIL BANK SHOULD BE IGNORED
BECAUSE ITS CONSTRUCTION WAS UNAUTHORIZED; IT WAS CREATED BY THE GULF
REFINING CO. UNDER A 1956 PERMIT WHICH, IT IS SAID, AUTHORIZED THE
DREDGING OF A CHANNEL BUT NOT THE CREATION OF A SPOIL BANK.  EVEN
ASSUMING THAT THE CREATION OF THE BANK WAS NOT AUTHORIZED (A QUESTION
ON WHICH WE EXPRESS NO OPINION WHATEVER), IT WOULD NOT FOLLOW THAT IT
DOES NOT CONSTITUTE PART OF THE COAST.  IF THE UNITED STATES IS
CONCERNED ABOUT SUCH EXTENSIONS OF THE SHORE, IT HAS THE MEANS TO
PREVENT TO REMOVE THEM.  SEE UNITED STATES V. CALIFORNIA, 381 U.S. 139,
177.  NOR CAN WE ACCEPT THE UNITED STATES' ARGUMENT THAT A "MERE SPOIL
BANK" SHOULD NOT BE DEEMED PART OF THE COAST BECAUSE IT IS NOT
"PURPOSEFUL OR USEFUL" AND IS LIKELY TO "SHORT-LIVED."  IT SUFFICES TO
SAY THAT THE CONVENTION CONTAINS NO SUCH CRITERIA. 

/49/  SEE N. 24, SUPRA. 

/50/  SEE SUPRA, AT 22. 

/51/  THE UNITED STATES SUGGESTS THAT THE ISSUE WAS DECIDED IN
UNITED STATES V. CALIFORNIA, FOR THE DECREE IN THAT CASE CONTAINED THIS
DEFINITION OF "COAST LINE": 

"(A) THE LINE OF MEAN LOWER LOW WATER ON THE MAINLAND, ON ISLANDS,
AND ON LOW-TIDE ELEVATIONS LYING WHOLLY OR PARTLY WITHIN THREE
GEOGRAPHICAL MILES FROM THE LINE OF MEAN LOWER LOW WATER ON THE
MAINLAND OR ON AN ISLAND . . . ."  382 U.S. 448, 449.  AS THE UNITED
STATES CONCEDES, HOWEVER, THE ISSUE NOW BEFORE US WAS NOT PRESENTED BY
THE CALIFORNIA CASE; HENCE, NOTHING IN THAT DECISION CONTROLS ITS
RESOLUTION. 

/52/  REPORT ON THE REGIME OF THE TERRITORIAL SEA 22, (1952) 2
Y.B.INT'L L.COMM'N 33, U.N.DOC.A/CN.4/53 (1952). 

/53/  SECOND REPORT ON THE REGIME OF THE TERRITORIAL SEA 30, (1953)
2 Y.B.INT'L L.COMM'N 57, U.N.DOC.A/CN.4/61 (1953); ADDENDUM TO THE
SECOND REPORT ON THE REGIME OF THE TERRITORIAL SEA 5-6, (1953) 2
Y.B.INTL L.COMM'N 75, U.N.DOC.A/CN.4/61/ADD.1 (1953); THIRD REPORT ON
THE REGIME OF THE TERRITORIAL SEA 13, (1954) 2 Y.B.INT'L COMM'N 5,
U.N.DOC.A/CN.4/77 (1954). 

/54/  REPORT OF THE INTERNATIONAL LAW COMMISSION COVERING THE WORK
OF ITS SIXTH SESSION, (1954) 2 Y.B.INT'L L.COMM'N 156,
U.N.DOC.A/CN.4/88 (1954). 

/55/  THE COMMENTARY TO THE 1954 COMMISSION DRAFT STATED: 

"DRYING ROCKS AND SHOALS SITUATED WHOLLY OR PARTLY IN THE
TERRITORIAL SEA ARE TREATED IN THE SAME WAY AS ISLANDS.  THE LIMIT OF
THE TERRITORIAL SEA WILL ACCORDINGLY MAKE ALLOWANCES FOR THE PRESENCE
OF SUCH DRYING ROCKS AND WILL JUT OUT TO SEA OFF THE COAST.  DRYING
ROCKS AND SHOALS, HOWEVER, WHICH ARE SITUATED OUTSIDE THE TERRITORIAL
SEA HAVE NO TERRITORIAL SEA OF THEIR OWN. 

"THE COMMISSION CONSIDERS THAT THE ABOVE ARTICLE EXPRESSES THE
INTERNATIONAL LAW IN FORCE."  IBID. THE MEANING OF THE INITIAL 1952
PROPOSAL TO THE COMMISSION "WAS THAT, EVEN IF AN ELEVATION OF THE SEA
BED WAS ONLY UNCOVERED AT LOW TIDE, PROVIDED IT WAS SITUATED WITHIN THE
TERRITORIAL SEA, THE LIMITS OF THE TERRITORIAL SEA WOULD THEREBY BE
EXTENDED FURTHER OUT INTO THE HIGH SEAS.  THAT POINT OF VIEW
CORRESPONDED WITH THE OBSERVATION BY THE PREPARATORY COMMITTEE OF THE
HAGUE CONFERENCE . . . ."  (1952) 1 Y.B.INT'L L.COMM'N 175.  THE 1930
CONFERENCE AT THE HAGUE HAD ADOPTED A SIMILAR ARTICLE:     "ELEVATIONS
OF THE SEA-BED SITUATED WITHIN THE TERRITORIAL SEA, THOUGH ONLY ABOVE
WATER AT LOW TIDE, ARE TAKEN INTO CONSIDERATION FOR THE DETERMINATION
OF THE BASE-LINE OF THE TERRITORIAL SEA."  ACTS OF THE CONFERENCE FOR
THE CODIFICATION OF INTERNATIONAL LAW, SUPRA, N. 29, AT 217 (1930). 
THE OBESERVATIONS OF THE SUBCOMMITTEE REPORTING TO THE HAGUE CONFERENCE
FURTHER REVEAL THE LONG-STANDING ACCEPTANCE OF THIS CONCEPT: 

"IF AN ELEVATION OF THE SEA-BED WHICH IS ONLY UNCOVERED AT LOW TIDE
IS SITUATED WITHIN THE TERRITORIAL SEA OFF THE MAINLAND, OR OFF AN
ISLAND, IT IS TO BE TAKEN INTO CONSIDERATION ON THE ANALOGY OF THE
NORTH SEA FISHERIES CONVENTION OF 1882 IN DETERMINING THE BASELINE OF
THE TERRITORIAL SEA."  IBID. 

THE UNITED STATES ARGUES THAT THE DISCUSSION OF THIS ISSUE IN
CONNECTION WITH THE FISHERIES CASE (UNITED KINGDOM V. NORWAY), (1951)
I.C.J. 116, INDICATES AN UNDERSTANDING THAT A LOW-TIDE ELEVATION MUST
BE WITHIN A CERTAIN DISTANCE FROM LAND IN ORDER TO HAVE A TERRITORIAL
SEA OF ITS OWN.  THE OPINION OF THE INTERNATIONAL COURT O JUSTICE
DISCUSSED THE CONTENTIONS OF THE PARTIES BUT FOUND IT UNNECESSARY TO
DECIDE THE QUESTION BECAUSE "IN FACT NONE OF THE DRYING ROCKS USED BY
(NORWAY) AS BASE POINTS IS MORE THAN 4 MILES FROM PERMANENTLY DRY
LAND."  ID., AT 128.  THE UNITED STATES RELIES ON THE FOLLOWING
STATEMENT BY THE UNITED KINGDOM OF ITS POSITION: "A BANK OR ROCK
EXPOSED ONLY AT LOW TIDE (LOW-TIDE ELEVATION) IS SIGNIFICANT IN REGARD
TO TERRITORIAL WATERS ONLY IF IT LIES WITHIN A BELT OF TERRITORIAL SEA
MEASURED FROM THE LOW-WATER MARK OF LAND PERMANENTLY EXPOSED . . . ." 
1 FISHERIES CASE, I.C.J. PLEADINGS 75 (1951).  THIS STATEMENT, HOWEVER,
DOES NOT EXCLUDE LOW-TIDE ELEVATIONS WHICH FALL WITHIN THE TERRITORIAL
SEA BY VIRTUE OF CLOSING LINES ACROSS BAYS; AND OTHER UNITED KINGDOM
SUBMISSIONS TO THE INTERNATIONAL COURT OF JUSTICE MORE ACCURATELY
REVEAL ITS POSITION ON THIS QUESTION: "(WHERE THERE IS A LOW-TIDE
ELEVATION SITUATED WITHIN 4 SEA MILES OF PERMANENTLY DRY LAND, OR OF
THE PROPER CLOSING LINE OR NORWEGIAN INTERNAL WATERS, THE OUTER LIMIT
OF TERRITORIAL WATERS MAY BE 4 SEA MILES FROM THE OUTER EDGE (AT LOW
TIDE) OF THIS LOW-TIDE ELEVATION."  (1951) I.C.J., AT 120.  AND SEE THE
POSITION OF THE UNITED KINGDOM BEFORE THE INTERNATIONAL LAW COMMISSION,
N. 58, INFRA. 

/56/  (1954) 1 Y.B.INT'L L.COMM'N 95. 

/57/  REPORT OF THE INTERNATIONAL LAW COMMISSION COVERING THE WORK
OF ITS EIGHTH SESSION, (1956) 2 Y.B.INT'L L.COMM'N 270, U.N.DOC. 
A/CN.4/104 (1956). 

/58/  THE UNITED STATES ARGUES THAT ITS CONSTRUCTION OF ARTICLE 11
IS SUPPORTED BY THE FAILURE OF THE INTERNATIONAL LAW COMMISSION TO
ADOPT A PROPOSAL OF THE UNITED KINGDOM TO INSERT AFTER THE WORDS
"TERRITORIAL SEA" THE PHRASE "AS MEASURED FROM THE LOW-WATER MARK OR
FROM A BASELINE."  REPORT OF THE INTERNATIONAL LAW COMMISSION COVERING
THE WORK OF ITS SEVENTH SESSION, (1955) 2 Y.B.INT'L L.COMM'N 58, U.N.
DOC. A/N.4/94 (1955).  THE PREFERENCE OF THE COMMISSION FOR THE PHRASE
"AS MEASURED FROM THE MAINLAND" TO THE BRITISH TERMINOLOGY, HOWEVER, IS
CONSISTENT WITH THE VIEW THAT THE PHRASES WERE THOUGH TO HAVE THE SAME
MEANING. 

/59/  (1956) 1 Y.B.INT'L L.COMM'N 283. 

/60/  SEE UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA, SUPRA, N.
42, AT 187, 243. 

/61/  THE UNITED STATES ARGUES THAT THE MEANING OF ITS PROPOSAL MUST
HAVE BEEN CLEAR TO ALL, SINCE ONLY THREE DAYS EARLIER IT HAD SUBMITTED
A PROPOSED AMENDMENT TO ANOTHER ARTICLE, INTRODUCING THE WORD
"MAINLAND" FOR THE EXPRESS PURPOSE OF EXCLUDING WATER CROSSINGS FROM
ITS SCOPE.  SEE ID., AT 236.  BUT AT THE TIME OF THE UNITED STATES
PROPOSAL THE WORD "MAINLAND" ALREADY APPEARED IN THE CONFERENCE DRAFT
OF ARTICLE 11 IN A CONTEXT WHICH MADE CLEAR THAT MEASUREMENT OF THE
TERRITORIAL SEA FROM BAY-CLOSING LINES WAS NOT EXCLUDED.  MOREOVER, IF
THE UNITED STATES HAD IN FACT INTENDED ITS AMENDMENT TO ARTICLE 11 TO
EXCLUDE WATER CROSSINGS, IT SEEMS LIKELY THAT THE UNITED STATES WOULD
HAVE SPELLED OUT THAT INTENTION AS IT HAD DONE WITH RESPECT TO THE
PROPOSAL TO AMEND THE OTHER ARTICLE THREE DAYS BEFORE. 

/62/  UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA, SUPRA, N. 42,
AT 186-187.  THE EXPERT WAS MR. FRANCOIS, WHO HAD BEEN THE SPECIAL
RAPPORTEUR OF THE INTERNATIONAL LAW COMMISSION FOR THE DRAFTING OF THE
CONVENTION. 

/63/  THIS CONCLUSION COINCIDES WITH THE VIEWS OF AUTHORITIES WHO
HAVE DEALT WITH THE SUBJECT.  THUS, SIR GERALD FITZMAURICE, WHO WAS A
MEMBER OF THE INTERNATIONAL LAW COMMISSION AND THE DEPUTY-LEADER OF THE
UNITED KINGDOM'S DELEGATION TO THE 1958 GENEVA CONFERENCE, GIVES THIS
EXPLANATION OF ARTICLE 11: "THE CONVENTION (ARTICLE 11, PARAGRAPH 1)
PERMITS ONE EXCEPTION WHICH HAS COME TO BE RECOGNISED AS REASONABLE,
NAMELY, THAT WHERE A LOW-TIDE ELEVATION IS SITUATED WITHIN WHAT IS
ALREADY TERRITORIAL SEA (OFF A MAINLAND COAST, OR OFF THE COAST OF AN
ISLAND PERMANENTLY ABOVE SEA LEVEL), IT CAN THEN GENERATE SOME (AS IT
WERE) EXTRATERRITORIAL SEA.  IN SUCH A CASE, THE LOW-TIDE ELEVATION
THEORETICALLY HAS ITS OWN TERRITORIAL SEA; BUT, AS THE ELEVATION IS
WITHIN WHAT IS ALREADY THE TERRITORIAL SEA OF THE MAINLAND, OR OF AN
ISLAND, THE PRACTICAL EFFECT IS SIMPLY TO CAUSE A BULGE IN THE SEAWARD
DIRECTION OF THAT TERRITORIAL SEA.  ON THE OTHER HAND, IF THERE IS A
FURTHER DRYING ROCK, SITUATED-- NOT WITHIN THE ORIGINAL OR BASIC
TERRITORIAL SEA OF THE MAINLAND OR ISLAND-- BUT WITHIN THE EXTENSION OF
SUCH TERRITORIAL SEA (BULGE) CAUSED BY THE PRESENCE OF THE 'INNER'
DRYING ROCK, THEN THIS 'OUTER' DRYING ROCK WILL NOT LEAD TO ANY FURTHER
EXTENSIONS OF THE TERRITORIAL SEA; NOR DOES AN 'OUTER' DRYING ROCK, SO
SITUATED, GENERATE ANY TERRITORIAL SEA OF ITS OWN.  THIS RULE IS
INTENDED TO PREVENT THE PRACTICE KNOWN AS 'LEAP-FROGGING,' WHICH, BY
MAKING USE OF A SERIES OF DRYING ROCKS, BANKS, ETC., EXTENDING
SEAWARDS, MIGHT RESULT IN ARTIFICIAL OR UNJUSTIFIED EXTENSIONS OF
NATURAL TERRITORIAL WATERS."  FITZMAURICE, SOME RESULTS OF THE GENEVA
CONFERENCE ON THE LAW OF THE SEA, 8 INT'L & COMP.L.Q. 73, 86-87
(1959).  AND SEE MCDOUGAL & BURKE, SUPRA, N. 26, AT 396; 1 SHALOWITZ,
SUPRA, N. 7, AT 228. 

/64/  THE UNITED STATES ARGUES-- IN ADDITION TO ITS CONTENTION THAT
IT DOES NOT MEET THE SEMICIRCLE TEST-- THAT "ASCENSION BAY" IS NOT A
TRUE BAY BECAUSE IT IS A "MERE CURVATURE OF THE COAST" RATHER THAN A
"WELL-MARKED INDENTATION" CONTAINING "LANDLOCKED WATERS."  IF THIS
CONTENTION IS ACCEPTED, THEN IT IS OF COURSE IRRELEVANT THAT "ASCENSION
BAY" MEETS THE SEMICIRCLE TEST.  SEE INFRA, AT 54.  WHETHER AN
INDENTATION QUALIFIES AS A BAY UNDER THE CRITERIA OF ARTICLE 7 OTHER
THAN THE SEMICIRCLE TEST IS A FACTUAL QUESTION WHICH SHOULD BE
SUBMITTED TO THE SPECIAL MASTER IN THE FIRST INSTANCE. 

IF "ASCENSION BAY" DOES QUALIFY UNDER ARTICLE 7, ON THE OTHER HAND,
IT IS AN OVERSIZE BAY, FOR THE CLOSING THE CLOSING LINE ACROSS ITS
MOUTH EXCEEDS 24 MILES.  SEE N. 68, INFRA.  THE PROCEDURE TO BE
FOLLOWED IN SUCH EVENT IS SPELLED OUT IN ARTICLE 7(5): 

"WHERE THE DISTANCE BETWEEN THE LOW-WATER MARKS OF THE NATURAL
ENTRANCE POINTS OF A BAY EXCEEDS TWENTY-FOUR MILES, A STRAIGHT BASELINE
OF TWENTY-FOUR MILES SHALL BE DRAWN WITHIN THE BAY IN SUCH A MANNER AS
TO ENCLOSE THE MAXIMUM AREA OF WATER THAT IS POSSIBLE WITH A LINE THAT
LENGTH." 

THE STRAIGHT 24-MILE LINE SELECTED BY LOUISIANA RUNS FROM CAMINADA
PASS TO EMPIRE CANAL, JUST EAST OF BASTIAN BAY, AND WE CAN SEE NO VALID
OBJECTION TO THAT LINE.  THE UNITED STATES ARGUES THAT ARTICLE 7(5)
PERMITS THE DRAWING INSIDE AN OVERSIZE BAY OF ONLY ONE 24-MILE CLOSING
LINE (OR PERHAPS SEVERAL LINES ACROSS OTHER INDENTATIONS WITHIN
"ASCENSION BAY," SUCH AS WEST BAY, WHICH QUALIFY INDEPENDENTLY AS
INLAND WATERS.  THE UNITED STATES' POSITION IS THAT THE TRIBUTARY BAYS
CANNOT BE TAKEN INTO ACCOUNT IN COMPUTING THE AREA OF THE LARGER
INDENTATION FOR PURPOSES OF THE SEMICIRCLE TEST BUT THEN DISREGARDED IN
MEASURING THE PARTS OF THE BAY TO BE ENCLOSED BY THE 24-MILE LINE.  WE
FIND NOTHING IN THE CONVENTION OR ITS HISTORY TO SUPPORT THIS
CONTENTION.  ARTICLE 7(5) MANDATES THAT A STRAIGHT 24-MILE BASELINE
SHALL BE DRAWN WITHIN AN OVERSIZE BAY SO AS TO INCLUDE THE GREATEST
AREA OF WATER.  IT DOES NOT FOLLOW FROM THE FACT THAT THIS ADDITIONAL
METHOD OF DELIMITING INLAND WATERS IN AN OVERSIZE BAY IS AVAILABLE,
THAT SMALLER BAYS WITHIN THE OVERSIZE BAY BUT OUTSIDE THE STRAIGHT 24
MILE BASELINE LOSE THEIR STATUS AS INLAND WATERS. 

IF IT IS DETERMINED THAT "ASCENSION BAY" DOES NOT QUALIFY AS A "WELL
MARKED INDENTATION" CONTAINING "LANDLOCKED WATERS," AND THAT A STRAIGHT
BASELINE THEREFORE CANNOT BE DRAWN WITHIN IT FROM CAMINADA PASS TO
EMPIRE CANAL, THE QUESTION WILL BE PRESENTED WHETHER THE BEACH EROSION
JETTIES ON GRANDE ISLE ARE PART OF THE COAST WITHIN ARTICLE 8 OF THE
CONVENTION.  SEE SUPRA, AT 36.  WE HOLD THAT THEY ARE.  THE UNITED
STATES ARGUES THAT ARTICLE 8 IS LIMITED TO STRUCTURES WHICH ARE
"INTEGRAL PARTS OF THE HARBOR SYSTEM" AND THAT THERE IS NO HARBOR
BETWEEN GRANDE ISLE AND THE JETTIES.  WHILE SOME EARLY DISCUSSION OF
THE SUBJECT BY THE INTERNATIONAL LAW COMMISSION TENDS TO SUPPORT THE
UNITED STATES' POSITION THAT THESE JETTIES ARE NOT ENCOMPASSED BY
ARTICLE 8, SEE (1954) 1 Y.B.INT'L L.COMM'N 88, THE COMMENTARY TO THE
FINAL INTERNATIONAL LAW COMMISSION DRAFT OF ARTICLE 8 (WHICH WAS
IDENTICAL TO ITS PRESENT FORM) EXPRESSLY COVERS ARTIFICIAL STRUCTURES
WHICH ARE NOT CLOSELY LINKED TO PORTS: 

"(2) PERMANENT STRUCTURES ERECTED ON THE COAST AND JUTTING OUT TO
SEA (SUCH AS JETTIES AND COAST PROTECTIVE WORKS) ARE ASSIMILATED TO
HARBOUR WORKS."  (1956) 2 Y.B.INT'L L.COMM'N 270.  MOREOVER, IT SHOULD
BE NOTED THAT THE BEACH EROSION JETTIES ARE IN A REAL SENSE "HARBOUR
WORKS," FOR THEY WERE DESIGNED TO PROTECT GRANDE ISLE, WHICH IN TURN
SHELTERS THE HARBOR WATERS OF CAMINADA BAY AND BAY DES ILETTES. 

/65/  THE PROBLEM MAY ALSO ARISE IN WEST BAY, WHERE THE PARTIES
DISAGREE AS TO THE PROPER CLOSING LINE.  IN PARTICULAR, THE UNITED
STATES OBJECTS TO LOUISIANA'S CHOICE OF THE TIP OF THE JETTY AT
SOUTHWEST PASS AS THE SOUTHERN HEADLAND.  IF THAT POINT IS SELECTED,
THE UNITED STATES ARGUES, THE BAY CANNOT SATISFY THE SEMICIRCLE TEST
UNLESS AREAS SUCH AS BOB TAYLOR'S POND, ZINZIN BAY, OR RIVERSIDE BAY
ARE INCLUDED IN ITS AREA; AND THOSE AREAS ARE "TOO DEFINITELY SEPARATED
FROM WEST BAY TO BE CONSIDERED A PART OF IT."  THE PROPER LOCATION OF
HEADLANDS IS, OF COURSE, ANOTHER FACTUAL DETERMINATION WHICH WE LEAVE
TO THE INITIAL SCRUTINY OF THE MASTER. 

/66/  "(THE WATER OF BAYS WITHIN BAYS MAY BE INCLUDED AS WATER
SURFACE OF THE OUTER BAY IN DETERMINING THE DIMENSIONS OF ANY COASTAL
INDENTATION."  SOVEREIGNTY OF THE SEA, UNITED STATES STATE DEPARTMENT
GEOGRAPHIC BULLETIN NO. 3, P. 11 (1965).  SEE ALSO 1 SHALOWITZ, SUPRA,
N. 7, AT 219:  "IN THE APPLICATION OF THE SEMICIRCULAR RULE TO AN
INDENTATION CONTAINING POCKETS, COVES, OR TRIBUTARY WATERWAYS, THE AREA
OF THE WHOLE INDENTATION (INCLUDING POCKETS, COVES, ETC.) IS COMPARED
WITH THE AREA OF A SEMICIRCLE." 

/67/  1 SHALOWITZ, SUPRA, N. 7, AT 220, N. 28, CONTAINS THE
FOLLOWING SUGGESTIONS: "ONE DIFFICULTY THAT ARISES IN INCLUDING
TRIBUTARY WATERWAYS AS PART OF THE AREA OF THE INDENTATION WHOSE STATUS
IS TO BE DETERMINED, IS THAT THE STATUS MAY DEPEND UPON HOW FAR UP THE
TRIBUTARY ONE GOES IN COMPUTING THE AREA.  THIS MAY REQUIRE THE
ADOPTION OF AN ADDITIONAL RULE LIMITING THE WIDTH OF SUCH WATERWAYS TO
A FIXED AMOUNT BEYOND WHICH IT WOULD NOT BE CONSIDERED A PART OF THE
PRIMARY WATERWAY.  AN ALTERNATIVE SOLUTION WOULD BE TO FIRST APPLY THE
SEMICIRCLE TEST TO THE TRIBUTARY WATERWAYS:  IF THEY BECOME INLAND
WATERS A CLOSING LINE IS DRAWN ACROSS THEM AND THE PRIMARY WATERWAY IS
THEN SUBJECTED TO THE TEST; IF THEY DO NOT BECOME INLAND WATERS THEY
WOULD THEN BE INCLUDED AS PART OF THE AREA OF THE MAIN INDENTATION FOR
THE PURPOSE OF DETERMINING ITS STATUS BY THE SEMICIRCULAR RULE."  SEE
ALSO SHALOWITZ, BOUNDARY PROBLEMS RAISED BY THE SUBMERGED LANDS ACT, 54
COL.L.REV.  1021, 1033, N. 33 (1954).  AND SEE BOUCHEZ, SUPRA, N. 23,
AT 21, EMPHASIZING THE NEED TO DISTINGUISH BETWEEN BAYS AND INLAND
SEAS. 

/68/  ARTICLE 7(4) READS AS FOLLOWS: 

"IF THE DISTANCE BETWEEN THE LOW-WATER MARKS OF THE NATURAL ENTRANCE
POINTS OF A BAY DOES NOT EXCEED TWENTY-FOUR MILES, A CLOSING LINE MAY
BE DRAWN BETWEEN THESE TWO LOW-WATER MARKS, AND THE WATERS ENCLOSED
THEREBY SHALL BE CONSIDERED AS INTERNAL WATERS." 

/69/  SEE N. 79, INFRA. 

/70/  THE UNITED STATES DOES NOT AGREE WITH SHALOWITZ' ALTERNATIVE
SUGGESTION THAT IN DETERMINING THE AREA OF A LARGE INDENTATION, THE
AREAS OF ALL QUALIFYING BAYS WITHIN IT SHOULD BE EXCLUDED.  SEE SUPRA,
AT 51 AND N. 67. 

/71/  WE THINK THE SAME RESULT FOLLOWS IN WEST BAY, WHERE THE AREAS
WHICH THE UNITED STATES SEEKS TO EXCLUDE FROM THE BAY ARE SET OFF ONLY
BY STRINGS OF ISLANDS.  SEE N. 65, SUPRA.  ACCORDINGLY, SHOULD THE
CLOSING LINE URGED BY LOUISIANA BE ACCEPTED, IT WILL NOT BE DEFEATED BY
THE SEMICIRCLE TEST. 

/72/  LOUISIANA CONTENDS THAT THE ENTIRE AREA OF EAST BAY IS A
HISTORIC BAY.  SEE INFRA, AT 74.  IF THAT POSITION IS ACCEPTED, OF
COURSE, NONE OF THE GEOGRAPHIC TESTS OF ARTICLE 7 WILL BE APPLICABLE,
FOR ARTICLE 7 PROVIDES THAT "(THE FOREGOING PROVISIONS SHALL NOT APPLY
TO SO-CALLED 'HISTORIC' BAYS . . . ."     /73/  SEE N. 64, SUPRA. 

/74/  THE 24-MILE LIMITATION, FOR INSTANCE, IS APPLIED TO THE
AGGREGATE LENGTHS OF THE CLOSING LINES.  SEE 1 SHALOWITZ, SUPRA, N. 7,
AT 221.  SEE ALSO THE FOLLOWING COMMENTARY OF THE INTERNATIONAL LAW
COMMISSION: 

"IF, AS A RESULT OF THE PRESENCE OF ISLANDS, AN INDENTATION WHOSE
FEATURES AS A 'BAY' HAVE TO BE ESTABLISHED HAS MORE THAN ONE MOUTH, THE
TOTAL LENGTH OF THE LINES DRAWN ACROSS ALL THE DIFFERENT MOUTHS WILL BE
REGARDED AS THE WIDTH OF THE BAY."  (1956) 2 Y.B.INT'L L.COMM'N 269. 
/75/  THE EXTENT TO WHICH THIS PROBLEM IS PRESENTED BY THIS CASE
DEPENDS UPON THE EXACT LOCATION OF THE LINE BETWEEN THE ENTRANCE POINTS
ON THE MAINLAND.  THE UNITED STATES AND LOUISIANA DISAGREE AS TO THE
LOCATION OF THE HEADLANDS ON THE MAINLAND, THE UNITED STATES HAVING
SELECTED POINTS CONSIDERABLY INLAND OF THOSE CHOSEN BY LOUISIANA. 
SINCE EVEN THE STRAIGHT LINE BETWEEN THE MAINLAND HEADLANDS URGED BY
THE UNITED STATES IS NOT ENTIRELY LANDWARD OF WHAT IT CONSIDERS THE
MOUTHS BETWEEN THE ISLANDS, WE DO NOT POSTPONE CONSIDERATION OF
LOUISIANA'S CONTENTION TO A DETERMINATION OF THE NATURAL ENTRANCE
POINTS ON THE MAINLAND. 

/76/  (1956) 2 Y.B.INT'L L.COMM'N 269. 

/77/  THE DIRECT, MAINLAND-TO-MAINLAND LINE PROPOSED BY LOUISIANA
ACROSS THE LAKE PELTO-TERREBONNE BAY-TIMBALIER BAY INDENTATION WOULD
MEET THE 24-MILE TEST, BUT IT APPEARS THAT THE LINE DRAWN BY THE UNITED
STATES WOULD NOT.  THE EXACT LENGTH OF THE UNITED STATES LINE NEED NOT
BE DETERMINED, HOWEVER, BECAUSE WE HOLD THAT, FOR THE PURPOSE OF THE
QUESTION AT ISSUE, THERE IS NO DISTINCTION BETWEEN INDENTATIONS WHICH
WOULD QUALIFY AS BAYS WITHOUT THE PRESENCE OF ISLANDS AND THOSE WHICH
WOULD NOT.  SEE NEXT PARAGRAPH.  NOTHING TO THOSE INDENTATIONS WHICH
WOULD NOT BE BAYS EXCEPT FOR THE PRESENCE OF ISLANDS.  IF THE ISLANDS
INTERSECTED BY A DIRECT LINE BETWEEN THE MAINLAND HEADLANDS ACTUALLY
CREATE MULTIPLE MOUTHS, THE SELECTION OF CLOSING LINES ACROSS THOSE
MOUTHS IS NOT OPTIONAL. 

/78/  SHALOWITZ AGREES THAT THE PURPOSE OF ARTICLE 7(3) SUPPORTS A
POLICY IN FAVOR OF ENCLOSING THE MAXIMUM AREA OF INLAND WATER.  SEE 1
SHALOWITZ, SUPRA, N. 7, AT 225, N. 38.  HOWEVER, THE CONTEXT OF HIS
REMARKS IS QUITE DIFFERENT FROM THE PRESENT ONE.  HE THERE SUGGESTS
THAT A POLICY IN FAVOR OF ENCLOSING THE GREATEST AREA WOULD SUPPORT
DRAWING LINES OUT TO ISLANDS WHOLLY SEAWARD OF A DIRECT LINE BETWEEN
THE ENTRANCE POINTS ON THE MAINLAND, BUT NOT DRAWING LINES INWARD TO
ISLANDS WHOLLY WITHIN SUCH A DIRECT CLOSING LINE.  ELSEWHERE SHALOWITZ
APPEARS TO AGREE THAT IF LINES ARE DRAWN TO AND BETWEEN THE ISLANDS,
THEY SHOULD BE ACROSS THE NATURAL ENTRANCE POINTS, EVEN IF THOSE
NATURAL ENTRANCE POINTS ARE LANDWARD OF A STRAIGHT MAINLAND-TO-MAINLAND
LINE.  SEE ID., AT 221, FIG. 40.  SEE ALSO PEARCY, MEASUREMENT OF THE
U.S. TERRITORIAL SEA, 40 DEPT. STATE BULL.  963, 966, FIG. 4 (1959). 

/79/  SINCE THIS ISSUE IS NOT PRESENTED BY THE INSULAR
CONFIGURATIONS AT THE LAKE PELTO-TERREBONNE BAY-TIMBALIER BAY COMPLEX,
WE EXPRESS NO OPINION ON IT.  HOWEVER, WE NOTE THAT THE ISSUE MAY ARISE
IN RELATION TO THE CAMINADA BAY-BARATARIA BAY INDENTATION.  DESPITE OUR
HOLDING THAT "ASCENSION BAY," OF WHICH CAMINADA AND BARATARIA BAYS ARE
A PART, DOES SATISFY THE SEMICIRCLE TEST, SUPRA, AT 52-53, IT WILL BE
OPEN TO THE UNITED STATES TO ARGUE BEFORE THE MASTER THAT "ASCENSION
BAY" DOES NOT OTHERWISE QUALIFY AS A BAY UNDER ARTICLE 7(2) OF THE
CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE.  A HOLDING
THAT "ASCENSION BAY" IS NOT A TRUE BAY WOULD PRECLUDE THE DRAWING OF A
STRAIGHT 24-MILE BASELINE FROM CAMINADA PASS TO EMPIRE CANAL, SEE N.
64, SUPRA, AND WOULD CALL INTO QUESTION THE PROPER CLOSING LINES ACROSS
THE CAMINADA BAY-BARATARIA BAY INDENTATION.  IN ITS REPLY BRIEF,
LOUSIANA FOR THE FIRST TIME CONTESTED THE UNITED STATES' PROPOSAL TO
DRAW BASELINES ALONG THE LOW-WATER MARKS ON THE FRINGE OF ISLANDS
ACROSS THAT INDENTATION.  LOUISIANA ASSERTS THAT A STRAIGHT CLOSING
LINE CAN BE DRAWN BETWEEN THE APPROPRIATE ENTRANCES ON THE MAINLAND
WHICH IS ENTIRELY SEAWARD OF ALL THE ISLANDS ON WHICH THE UNITED STATES
HAS DRAWN BASELINES. 

ALTHOUGH THE QUESTION WHETHER LINES SHOULD BE DRAWN INWARD TO
ISLANDS WHICH ARE NOT INTERSECTED BY A DIRECT MAINLAND-TO-MAINLAND
CLOSING LINE IS ONE OF CONSTRUCTION OF THE CONVENTION RATHER THAN OF
FACT, FOR SEVERAL REASONS WE HAVE DECIDED TO LEAVE ITS RESOLUTION TO
THE SPECIAL MASTER IN THE FIRST INSTANCE.  THE ISSUE MAY NOT ARISE AT
ALL, IF IT IS DETERMINED EITHER THAT "ASCENSION BAY" IS A TRUE BAY OR
THAT A DIRECT LINE BETWEEN THE PROPER MAINLAND HEADLANDS DOES INTERSECT
THE ISLANDS.  MOREOVER, THE ISSUE IS A CLOSE ONE, YET ONE ON WHICH WE
HAVE NOT HAD THE BENEFIT OF CONCERTED ADVOCACY ON BOTH SIDES.  ON THE
ONE HAND, THE CONSIDERATIONS WHICH LED US TO REJECT LOUISIANA'S
CONTENTION WITH RESPECT TO ISLANDS INTERSECTED BY A STRAIGHT MAINLAND
TO-MAINLAND CLOSING LINE APPEAR TO MILITATE IN FAVOR OF DRAWING LINES
INWARD TO ISLANDS WHICH SEEMINGLY CREATE DISTINCT MOUTHS TO THE
INDENTATION.  THIS VIEW IS SUPPORTED BY THE FACT THAT ARTICLE 7(3)
CONTAINS NO REQUIREMENT THAT THE ISLANDS BE INTERSECTED BY A MAINLAND
TO-MAINLAND CLOSING LINE; RATHER IT SPEAKS ONLY OF MULTIPLE MOUTHS
"BECAUSE OF THE PRESENCE OF ISLANDS."  ON THE OTHER HAND, ARTICLE 7(3)
DOES PROVIDE THAT ISLANDS WHOLLY "WITHIN" THE INDENTATION SHALL BE
TREATED AS PART OF THE WATER AREAS.  BECAUSE THE ISSUE IS A DIFFICULT
ONE OF FIRST IMPRESSION AND FEW ILLUMINATING MATERIALS HAVE BEEN
BROUGHT TO OUR ATTENTION, WE FEEL THAT OUR RESOLUTION OF THE QUESTION,
IF NECESSARY, WOULD BE GREATLY AIDED BY ITS PRIOR SUBMISSION TO A
NEUTRAL REFEREE. 

/80/  THE QUESTION ARISES WITH RESPECT TO LOW-TIDE ELEVATIONS AS
WELL AS ISLANDS.  WE THINK THAT IN THIS CONTEXT THERE CAN BE NO
DISTINCTION BETWEEN THEM.  ARTICLE 7(4) PROVIDES THAT THE BAY-CLOSING
LINE SHALL BE DRAWN "BETWEEN THE LOW-WATER MARKS OF THE NATURAL
ENTRANCE POINTS."  THE LINE IS TO BE DRAWN AT LOW-TIDE, SURROUNDED BY
WATER, IT CAN BE ON A LOW-TIDE ELEVATION AS WELL AS AN ISLAND. 

THE UNITED STATES OBSERVES THAT UNDER ARTICLE 4, SEE N. 89, INFRA,
STRAIGHT BASELINES "SHALL NOT BE DRAWN TO AND FROM LOW-TIDE ELEVATIONS,
UNLESS LIGHTHOUSES OR SIMILAR INSTALLATIONS WHICH ARE PERMANENTLY ABOVE
SEA LEVEL HAVE BEEN BUILT ON THEM."  A FORTIORI, THE UNITED STATES
ARGUES, BAY-CLOSING LINES CANNOT BE DRAWN TO SUCH LOW-TIDE ELEVATIONS. 
THE ARGUMENT OVERLOOKS THE DIFFERENT POLICY CONSIDERATIONS UNDERLYING
ARTICLES 4 AND 7.  STRAIGHT BASELINES CAN BE DRAWN TO ISLANDS UNDER
ARTICLE 4 ONLY IF THEY ENCLOSE AREAS "SUFFICIENTLY CLOSELY LINKED TO
THE LAND DOMAIN TO BE SUBJECT TO THE REGIME OF INTERNAL WATERS."  LOW
TIDE ELEVATIONS OBVIOUSLY DO NOT SO CLOSELY TIE THE ENCLOSED WATERS TO
THE LAND; AND IF THEY COULD BE USED FOR STRAIGHT BASELINES, "THE
DISTANCE BETWEEN THE BASELINES AND THE COAST MIGHT BE EXTENDED MORE
THAN IS REQUIRED TO FULFIL THE PURPOSE FOR WHICH THE STRAIGHT BASELINE
METHOD IS APPLIED."  INTERNATIONAL LAW COMMISSION COMMENTARY ON ITS
FINAL DRAFT, (1956) 2 Y.B.INT'L L.COMM'N 268.  A FURTHER REASON GIVEN
BY THE INTERNATIONAL LAW COMMISSION FOR THE PROHIBITION AGAINST DRAWING
STRAIGHT BASELINES TO LOW-TIDE ELEVATIONS IS THAT "IT WOULD NOT BE
POSSIBLE AT HIGH TIDE TO SIGHT THE POINTS OF DEPARTURE OF THE
BASELINES."  IBID.  THE NEED TO IDENTIFY HEADLANDS ON THE COAST AT HIGH
TIDE IS NOT SO GREAT AS IT IS IN RESPECT OF BASEPOINTS IN THE SEA, AND
FOR THAT REASON THE CONVENTION MEASURES BAY-CLOSING LINES FROM THE LOW
WATER MARK. 

/81/  COMPARE THE POSITION OF THE UNITED STATES THAT THE LOW-WATER
PERIMETER OF INDENTATIONS SHOULD BE BROKEN BY WATER-CROSSING LINES
CLOSING OFF DISTINCT SMALLER INDENTATIONS WITHIN THE LARGER BAY, SUPRA,
AT 51. 

/82/  MOST OF THE REFERENCES BY 19TH AND EARLY 20TH CENTURY
AUTHORITIES TO THE CONNECTION BETWEEN ISLANDS AND BAYS FORESHADOWED THE
MODERN CONCEPT-- EMBODIED IN ARTICLE 7(3) OF THE CONVENTION-- OF
ISLANDS CREATING MULTIPLE MOUTHS TO BAYS AND TYING THE WATERS OF THE
INDENTATION MORE CLOSELY TO THE MAINLAND.  SEE, E.G., CALVO, EXCERPTED
IN CROCKER, SUPRA, N. 29, AT 29; PIEDELIEVRE, PRECIS DE DROIT
INTERNATIONAL PUBLIC OUT DROIT DES GENS (1894), IN CROCKER, AT 389;
TESTA, LE DROIT PUBLIC INTERNATIONAL MARITIME 11886), IN CROCKER, AT
448.  SOME AUTHORS, RELYING PRINCIPALLY ON AN 1839 FRANCO-ENGLISH
CONVENTION REGULATING FISHERIES IN THE ENGLISH CHANNEL, STATED THAT BAY
CLOSING LINES SHOULD BE DRAWN BETWEEN THE "EXTREME POINTS OF THE
MAINLAND AND SAND BANKS."  LATOUR, EXCERPTED IN CROCKER, SUPRA, N. 29,
AT 257.  SEE ALSO PERELS, ID., AT 357-358.  IN VIEW OF THE CONTRAST
DRAWN BETWEEN "MAINLAND" AND "SAND BANKS," IT MAY BE THAT THIS
FORMULATION CONTEMPLATED THE DRAWING OF CLOSING LINES TO PIECES OF LAND
CLOSELY RELATED TO THE MAINLAND BUT ENTIRELY SURROUNDED BY WATER, AS
SAND BANKS OFTEN ARE. 

/83/  THE UNITED STATES ARGUES THAT SINCE THE CONVENTION IN ARTICLE
7(3) SPECIFICALLY RECOGNIZES THAT ISLANDS MAY CREATE MULTIPLE MOUTHS TO
BAYS, IT CANNOT BE CONSTRUED TO PERMIT ISLANDS TO CREATE THE BAYS
THEMSELVES.  ALTERNATIVELY, THE GOVERNMENT ARGUES THAT IF A CLOSING
LINE CAN BE DRAWN FROM ONE SIDE OF A BAY TO AN ISLAND AS THE HEADLAND
ON THE OTHER SIDE, THEN IT MUST BE CONTINUED FROM THE ISLAND TO THE
NEAREST POINT ON THE MAINLAND; AND THE DISTANCE TO THE MAINLAND MUST BE
ADDED TO THAT ACROSS THE BAY IN DETERMINING WHETHER THE 24-MILE TEST IS
SATISFIED.  THESE ARGUMENTS, HOWEVER, MISCONSTRUE THE THEORY BY WHICH
THE HEADLAND IS PERMITTED TO BE LOCATED ON THE ISLAND-- THAT THE ISLAND
IS SO CLOSELY ALIGNED WITH THE MAINLAND AS REALISTICALLY TO BE
CONSIDERED AN INTEGRAL PART OF IT.  THUS VIEWED, THERE IS NO "MOUTH"
BETWEEN THE ISLAND AND THE MAINLAND. 

/84/  IN THE CASE OF THE "ANNA," 165 ENG.REP.  809 (1805), THE BRITISH
HIGH COURT OF ADMIRALTY WAS CALLED UPON TO DETERMINE A CLAIM THAT AN
AMERICAN SHIP SEIZED BY A PRIVATEER OFF THE MISSISSIPPI RIVER DELTA HAD
BEEN WRONGFULLY TAKEN IN AMERICAN TERRITORIAL WATERS.  IN HOLDING FOR
THE CLAIMANT, THE COURT WROTE: "THE CAPTURE WAS MADE, IT SEEMS, AT THE
MOUTH OF THE RIVER MISSISSIPPI, AND, AS IT IS CONTENDED IN THE CLAIM,
WITHIN THE BOUNDARIES OF THE UNITED STATES.  WE ALL KNOW THAT THE RULE
OF LAW ON THIS SUBJECT IS "TERRAE DOMINIUM FINITUR, UBI FINITUR ARMORUM
VIS,' AND SINCE THE INTRODUCTION OF FIRE-ARMS, THAT DISTANCE HAS
USUALLY BEEN RECOGNISED TO BE ABOUT THREE MILES FROM THE SHORE.  BUT IT
SO HAPPENS IN THIS CASE, THAT A QUESTION ARISES AS TO WHAT IS TO BE
DEEMED THE SHORE, SINCE THERE ARE A NUMBER OF LITTLE MUD ISLANDS
COMPOSED OF EARTH AND TREES DRIFTED DOWN BY THE RIVER, WHICH FORM A
KIND OF PORTICO TO THE MAINLAND.  IT IS CONTENDED THAT THESE ARE NOT TO
BE CONSIDERED AS ANY PART OF THE TERRITORY OF AMERICA, THAT THEY ARE A
SORT OF 'NO MAN'S LAND,' NOT OF CONSISTENCY ENOUGH TO SUPPORT THE
PURPOSES OF LIFE, UNINHABITED, AND RESORTED TO, ONLY, FOR SHOOTING AND
TAKING BIRDS' NESTS.  IT IS ARGUED THAT THE LINE OF TERRITORY IS TO BE
TAKEN ONLY FROM THE BALISE, WHICH IS A FORT RAISED ON MADE LAND BY THE
FORMER SPANISH POSSESSORS.  I AM OF A DIFFERENT OPINION; I THINK THAT
THE PROTECTION OF TERRITORY IS TO BE RECKONED FROM THESE ISLANDS; AND
THAT THEY ARE THE NATURAL APPENDAGES OF THE COAST ON WHICH THEY BORDER,
AND FROM WHICH INDEED THEY ARE FORMED.  THEIR ELEMENTS ARE DERIVED
IMMEDIATELY FROM THE TERRITORY, AND ON THE PRINCIPLE OF ALLUVIUM AND
INCREMENT, ON WHICH SO MUCH IS TO BE FOUND IN THE BOOKS OF LAW . . .
."  ID., AT 814-815. 

THE UNITED STATES ARGUES THAT THE DECISION IS NOT IN POINT BECAUSE
IT HAD NOTHING TO DO WITH THE DELIMITATION OF BAYS AND MERELY HELD, AS
ARTICLE 10 OF THE CONVENTION NOW PROVIDES, SEE N. 94, INFRA, THAT THE
THREE-MILE BELT IS TO BE MEASURED FROM ISLANDS IN THE SAME WAY AS FROM
THE MAINLAND.  BUT IF THE COURT HAD BEEN OF THE VIEW THAT THE THREE
MILE BELT EXTENDED FROM ISLANDS AS WELL AS THE MAINLAND, IT WOULD NOT
HAVE HAD TO DECIDE THAT THE MUD ISLANDS WERE "DEEMED THE SHORE."  AND
THE OPINION IN THE "ANNA" GAVE RISE TO SEVERAL CATEGORICAL STATEMENTS
BY 19TH CENTURY AUTHORITIES THAT "(THE TERM 'COASTS'  INCLUDES THE
NATURAL APPENDAGES OF THE TERRITORY WHICH RISE OUT OF THE WATER,
ALTHOUGH THESE ISLANDS ARE NOT OF SUFFICIENT FIRMNESS TO BE INHABITED
OR FORTIFIED . . . ."  H. WHEATON, ELEMENTS OF INTERNATIONAL LAW 256
(8TH ED. 1866).  SEE ALSO HALLECK, INTERNATIONAL LAW (4TH ED. 1908), IN
CROCKER, SUPRA, N. 29, AT 88-90.  AND IT IS ANCIENT LORE THAT ISLANDS
CREATED BY SEDIMENTATION AT RIVER ENTRANCES ARE PECULIARLY INTEGRATED
WITH THE MAINLAND ITSELF: "THE ISLANDS SITUATED AT THE MOUTH OF A RIVER
ARE EMBRACED AS PART OF THE TERRITORY, EVEN WHEN THEY ARE NOT
OCCUPIED.  THEY ARE CONSIDERED AS FORMING THE BEGINNING OF THE
GOVERNMENT OF THE COUNTRY, BECAUSE THE ELEMENTS OF WHICH THEY ARE
COMPOSED HAVE BECOME DETACHED FROM THE SOIL ITSELF.  IT IS FROM THEIR
COAST THAT THE LITTORAL SEA COMMENCES."  NYS, LE DROIT INTERNATIONAL
(1904), IN CROCKER, AT 321. 

OUR DISCUSSION OF THESE AUTHORITIES SHOULD NOT BE TAKEN AS
SUGGESTING THAT, UNDER THE NOW CONTROLLING CONVENTION ON THE
TERRITORIAL SEA AND THE CONTIGUOUS ZONE, EVERY MISSISSIPPI RIVER DELTA
MUDLUMP OR OTHER INSULAR FORMATION IS A PART OF THE COAST.  WE DO
BELIEVE, HOWEVER, THAT THE ORIGIN OF THE ISLANDS AND THEIR RESULTANT
CONNECTION WITH THE SHORE IS ONE CONSIDERATION RELEVANT TO THE
DETERMINATION OF WHETHER THEY ARE SO CLOSELY TIED TO THE MAINLAND AS
REALISTICALLY TO BE CONSIDERED A PART OF IT. 

/85/  "OBVIOUSLY, SOME ISLANDS MUST BE TREATED AS IF THEY WERE PART
OF THE MAINLAND.  THE SIZE OF THE ISLAND, HOWEVER, CANNOT IN ITSELF
SERVE AS A CRITERION, AS IT MUST BE CONSIDERED IN RELATIONSHIP TO ITS
SHAPE, ORIENTATION AND DISTANCE FROM THE MAINLAND."  BOGGS,
DELIMITATION OF SEAWARD AREAS UNDER NATIONAL JURISDICTION, 45
AM.J.INT'L L. 240, 258 (1951).     "ISLANDS CLOSE TO THE SHORE MAY
CREATE SOME UNIQUE PROBLEMS.  THEY MAY BE NEAR, SEPARATED FROM THE
MAINLAND BY SO LITTLE WATER THAT FOR ALL PRACTICAL PURPOSES THE COAST
OF THE ISLAND IS IDENTIFIED AS THAT OF THE MAINLAND."  PEARCY,
GEOGRAPHICAL ASPECTS OF THE LAW OF THE SEA, 49 ANNALS OF ASSN. OF
AMERICAN GEOGRAPHERS NO. 1, P. 1, AT 9 (1959).  THE DIRECTOR OF THE
COAST AND GEODETIC SURVEY, DEPARTMENT OF COMMERCE, HAS STATED THE
FOLLOWING RULE FOR THE ASSIMILATION OF ISLANDS TO THE MAINLAND: 
"THE COAST LINE SHOULD NOT DEPART FROM THE MAINLAND TO EMBRACE OFFSHORE
ISLANDS, EXCEPT WHERE SUCH ISLANDS EITHER FORM A PORTICO TO THE
MAINLAND AND ARE SO SITUATED THAT THE WATERS BETWEEN THEM AND THE
MAINLAND ARE SUFFICIENTLY ENCLOSED TO CONSTITUTE INLAND WATERS, OR THEY
FORM AN INTEGRAL PART OF A LAND FORM."  MEMORANDUM OF APRIL 18, 1961,
EXCERPTED IN 1 SHALOWITZ, SUPRA, N. 7, AT 161, N. 125.  SHALOWITZ HAS
RECOGNIZED THAT "(WITH REGARD TO DETERMINING WHICH ISLANDS ARE PART OF
A LAND FORM AND WHICH ARE NOT, NO PRECISE STANDARD IS POSSIBLE.  EACH
CASE MUST BE INDIVIDUALLY CONSIDERED WITHIN THE FRAMEWORK OF THE
PRINCIPAL RULE."  AT 162.  AND SEE STROHL, SUPRA, N. 23, AT 76, FIG.
18. 

/86/  THIS ENUMERATION IS INTENDED TO BE ILLUSTRATIVE RATHER THAN
EXHAUSTIVE. 

/87/  ONE SUCH PLACE IS CAILLOU BAY, THE BODY OF WATER BETWEEN THE
MAINLAND AND THE WESTERN MOST OF THE STRING OF ISLANDS KNOWN AS THE
ISLES DERNIERES.  ANOTHER IS THE LARGE AREA CONSISTING OF CHANDELEUR
SOUND AND BRETON SOUND BETWEEN THE NORTHEASTERN SHORES OF THE
MISSISSIPPI RIVER DELTA AND THE CHANDELEUR ISLANDS CHAIN.  THIS LATTER
AREA IS NOT IN DISPUTE, FOR THE UNITED STATES, WHILE ASSERTING THAT THE
SOUNDS ARE NOT NECESSARILY INLAND WATERS UNDER THE CONVENTION, HAS
CONCEDED THAT THEY BELONG TO LOUISIANA.  THAT CONCESSION WAS MADE AT AN
EARLY STAGE OF THIS LITIGATION, SEE N. 97, INFRA, AND THE UNITED STATES
HAS DECIDED NOT TO WITHDRAW IT DESPITE THE SUBSEQUENT RATIFICATION OF
THE CONVENTION.  LOUISIANA FURTHER CONTENDS THAT SOME OF THE CHANDELEUR
ISLANDS FORM PART OF THE PERIMETER OF A BAY-- WHICH IT CALLS "ISLE AU
BRETON BAY"-- ENCLOSING INLAND WATERS BETWEEN THEIR SOUTHERN EDGES AND
THE NORTH AND MAIN PASSES OF THE MISSISSIPPI RIVER DELTA.  THE UNITED
STATES OBJECTS TO THIS USE OF THE ISLAND FRINGE. 

/88/  LOUISIANA DOES NOT CONTEND THAT ANY OF THE ISLANDS IN QUESTION
IS SO CLOSELY ALIGNED WITH THE MAINLAND AS TO BE DEEMED A PART OF IT,
AND WE AGREE THAT NONE OF THE ISLANDS WOULD FIT THAT DESCRIPTION. 

/89/  "1.  IN LOCALITIES WHERE THE COAST LINE IS DEEPLY INDENTED AND
"UT INTO, OR IF THERE IS A FRINGE OF ISLANDS ALONG THE COAST IN ITS
IMMEDIATE VICINITY, THE METHOD OF STRAIGHT BASELINES JOINING
APPROPRIATE POINTS MAY BE EMPLOYED IN DRAWING THE BASELINE FROM WHICH
THE BREADTH OF THE TERRITORIAL SEA IS MEASURED. 

"2.  THE DRAWING OF SUCH BASELINES MUST NOT DEPART TO ANY
APPRECIABLE EXTENT FROM THE GENERAL DIRECTION OF THE COAST, AND THE SEA
AREAS LYING WITHIN THE LINES MUST BE SUFFICIENTLY CLOSELY LINKED TO THE
LAND DOMAIN TO BE SUBJECT TO THE REGIME OF INTERNAL WATERS. 

"3.  BASELINES SHALL NOT BE DRAWN TO AND FROM LOW-TIDE ELEVATIONS,
UNLESS LIGHTHOUSES OR SIMILAR INSTALLATIONS WHICH ARE PERMANENTLY ABOVE
SEA LEVEL HAVE BEEN BUILT ON THEM. 

"4.  WHERE THE METHOD OF STRAIGHT BASELINES IS APPLICABLE UNDER THE
PROVISIONS OF PARAGRAPH 1, ACCOUNT MAY BE TAKEN, IN DETERMINING
PARTICULAR BASELINES, OF ECONOMIC INTERESTS PECULIAR TO THE REGION
CONCERNED, THE REALITY AND THE IMPORTANCE OF WHICH ARE CLEARLY
EVIDENCED BY A LONG USAGE. 

"5.  THE SYSTEM OF STRAIGHT BASELINES MAY NOT BE APPLIED BY A STATE
IN SUCH A MANNER AS TO CUT OFF FROM THE HIGH SEAS THE TERRITORIAL SEA
OF ANOTHER STATE. 

"6.  THE COASTAL STATE MUST CLEARLY INDICATE STRAIGHT BASELINES ON
CHARTS, TO WHICH DUE PUBLICITY MUST BE GIVEN." 

/90/  ALTHOUGH INTERNATIONAL ACCORD ON THE CONCEPT OF STRAIGHT
BASELINES ALONG ISLAND CHAINS IS A FAIRLY RECENT DEVELOPMENT, THERE ARE
SOME EARLIER STATEMENTS OF THE PRINCIPLE.  SEE, E.G., RAESTAD, LA MER
TERRITORIALE (1913), EXCERPTED IN CROCKER, SUPRA, N. 29, AT 407.  SEE
GENERALLY MCDOUGAL & BURKE, SUPRA, N. 26, AT 314-316. 

/91/  SEE THE DISCUSSION FO THE INTERNATIONAL LAW COMMISSION AT
(1954) A Y.B.INT'L L.COMM'N 66; (1955) 1 Y.B.INT'L L.COMM'N 197, 218,
252; (1955) 2 Y.B.INT'L L.COMM'N 37; (1956) 1 Y.B.INT'L L.COMM'N 185,
194-195; AND OF THE 1958 GENEVA CONFERENCE IN UNITED NATIONS CONFERENCE
ON THE LAW OF THE SEA, SUPRA, N. 42, AT 43-44, 60, 141, 156, 162-163. 
A THOROUGH REVIEW OF THE PRACTICE OF NATIONS AND INTERNATIONAL STUDIES
OF THE PROBLEM IS FOUND AT 4 M.WHITEMAN, DIGEST OF INTERNATIONAL LAW
274-303. 

/92/  THE 1930 HAGUE CONVENTION, FOR EXAMPLE, WAS UNABLE TO
RECOMMEND A SPECIFIC PROVISION: 

"WITH REGARD TO A GROUP OF ISLANDS (ARCHIPELAGO) AND ISLANDS
SITUATED ALONG THE COAST, THE MAJORITY OF THE SUB-COMMITTEE WAS OF
OPINION THAT A DISTANCE OF TEN MILES SHOULD BE ADOPTED AS A BASIS FOR
MEASURING THE TERRITORIAL SEA OUTWARD IN THE DIRECTION OF THE HIGH
SEA.  OWING TO THE LACK OF TECHNICAL DETAILS, HOWEVER, THE IDEA OF
DRAFTING A DEFINITE TEXT ON THIS SUBJECT HAD TO BE ABANDONED."  ACTS OF
THE CONFERENCE FOR THE CODIFICATION OF INTERNATIONAL LAW, SUPRA, N. 29,
AT 219.  SEE ALSO FITZMAURICE, SUPRA, N. 63, AT 88-90; MCDOUGAL &
BURKE, SUPRA, N. 26, AT 377-386. 

/93/  THE HISTORY OF THE SUBJECT IS SUMMARIZED IN THE REFERENCE
GUIDE TO THE ARTICLES CONCERNING THE LAW OF THE SEA ADOPTED BY THE
INTERNATIONAL LAW COMMISSION AT ITS EIGHTH SESSION, U.N. DOC.
A/C.6/L.378, P. 45, N. 1 (1956), AS FOLLOWS: 

"IN HIS FIRST REPORT . . . THE SPECIAL RAPPORTEUR PROPOSED AN
ARTICLE ENTITLED 'GROUPS OF ISLANDS.'  THIS WAS ARTICLE 10, WHICH READ
AS FOLLOWS: "'WITH REGARD TO A GROUP OF ISLANDS (ARCHIPELAGO) AND
ISLANDS SITUATED ALONG THE COAST, THE TEN-MILE LINE SHALL BE ADOPTED AS
THE BASE LINE FOR MEASURING THE TERRITORIAL SEA IN THE DIRECTION OF THE
HIGH SEA.  THE WATERS INCLUDED WITHIN THE GROUP SHALL CONSTITUTE INLAND
WATERS.' 

"HE EXPLAINED, HOWEVER, THAT HE HAD INSERTED THIS TEXT 'NOT AS
EXPRESSING THE LAW AT PRESENT IN FORCE, BUT AS A BASIS OF DISCUSSION
SHOULD THE COMMISSION WISH TO STUDY A TEST ENVISAGING THE PROGRESSIVE
DEVELOPMENT OF INTERNATIONAL LAW ON THIS SUBJECT.'  HE REFERRED TO A
PASSAGE IN THE JUDGMENT OF THE INTERNATIONAL COURT OF JUSTICE IN THE
FISHERIES CASE WHERE THE COURT HAD SAID . . .: "'IN THIS CONNECTION,
THE PRACTICE OF STATES DOES NOT JUSTIFY THE FORMULATION OF ANY GENERAL
RULE OF LAW.  THE ATTEMPTS THAT HAVE BEEN MADE TO SUBJECT GROUPS OF
ISLANDS OR COASTAL ARCHIPELAGOES TO CONDITIONS ANALOGOUS TO THE
LIMITATIONS CONCERNING BAYS (DISTANCE BETWEEN THE ISLANDS NOT EXCEEDING
TWICE THE BREADTH OF THE TERRITORIAL WATERS, OR TEN OR TWELVE SEA
MILES), HAVE NOT GOT BEYOND THE STAGE OF PROPOSALS.' 

"IN HIS SECOND REPORT . . . THE SPECIAL RAPPORTEUR SUGGESTED AS
ARTICLE 10 AN ABBREVIATED VERSION OF HIS EARLIER PROPOSAL, WHICH NOW
SIMPLY READ AS FOLLOWS: "'WITH REGARD TO A GROUP OF ISLANDS
(ARCHIPELAGO) AND ISLANDS SITUATED ALONG THE COAST, THE TEN MILE LINE
SHALL BE ADOPTED AS THE BASE LINE.' 

"AFTER CONSULTING THE COMMITTEE OF EXPERTS THE SPECIAL RAPPORTEUR
PUT FORWARD A MORE ELABORATE PROPOSAL . . . AND YET A FURTHER PROPOSAL
IN HIS THIRD REPORT . . . . 

"THE LATTER PROPOSAL READ AS FOLLOWS: 

"'1.  THE TERM "GROUP OF ISLANDS," IN THE JURIDICAL SENSE, SHALL BE
DEEMED TO MEAN THREE OR MORE ISLANDS ENCLOSING A PORTION OF THE SEA
WHEN JOINED BY STRAIGHT LINES NOT EXCEEDING FIVE MILES IN LENGTH,
EXCEPT THAT ONE SUCH LINE MAY EXTEND TO A MAXIMUM OF TEN MILES. 

"'2.  THE STRAIGHT LINES SPECIFIED IN THE PRECEDING PARAGRAPH SHALL
BE THE BASE LINES FOR MEASURING THE TERRITORIAL SEA; WATERS LYING
WITHIN THE AREA BOUNDED BY SUCH BASE LINES AND THE ISLANDS THEMSELVES
SHALL BE CONSIDERED AS INLAND WATERS. 

"'3.  A GROUP OF ISLANDS MAY LIKEWISE BE FORMED BY A STRING OF
ISLANDS TAKEN TOGETHER WITH A PORTION OF THE MAINLAND COASTLINE.  THE
RULES SET FORTH IN PARAGRAPHS 1 AND 2 OF THIS ARTICLE SHALL APPLY PARI
PASSU.' 

"THE COMMISSION, HOWEVER, AFTER POSTPONING THE QUESTION IN 1954,
DECIDED IN 1955 THAT ARTICLE 5, WHICH DEALT WITH 'STRAIGHT BASELINES,'
MIGHT BE APPLICABLE TO GROUPS OF ISLANDS SITUATED OFF THE COASTS, WHILE
THE GENERAL RULES WOULD NORMALLY APPLY TO OTHER ISLANDS FORMING A
GROUP.  THIS POSITION WAS CONFIRMED IN 1956, THE COMMISSION ADDING THAT
IT WAS PREVENTED FROM STATING AN OPINION ON THIS SUBJECT NOT ONLY BY
DISAGREEMENT ON THE BREADTH OF THE TERRITORIAL SEA BUT ALSO BY LACK OF
TECHNICAL INFORMATION.  THE COMMISSION HOPED, HOWEVER, THAT IF AN
INTERNATIONAL CONFERENCE WERE SUBSEQUENTLY TO STUDY THE PROPOSED RULES,
IT WOULD GIVE ATTENTION TO THIS PROBLEM WHICH THE COMMISSION RECOGNIZED
TO BE AN IMPORTANT ONE."  WHILE THE 1958 GENEVA CONFERENCE GAVE THE
PROBLEM ITS ATTENTION, IT WAS PREVENTED BY THE SAME REASONS FROM
FORMULATING AN ARTICLE DEALING WITH GROUPS AND FRINGES OF ISLANDS OTHER
THAN ARTICLE 4. 

/94/  ISLANDS ARE NORMALLY COVERED BY ARTICLE 10: 

"1.  AN ISLAND IS A NATURALLY-FORMED AREA OF LAND, SURROUNDED BY
WATER, WHICH IS ABOVE WATER AT HIGH-TIDE. 

"2.  THE TERRITORIAL SEA OF AN ISLAND IS MEASURED IN ACCORDANCE WITH
THE PROVISIONS OF THESE ARTICLES." 

/95/  THIS CONCLUSION IS SHARED BY SHALOWITZ.  SEE 1 SHALOWITZ,
SUPRA, N. 7, AT 227 AND N. 44.  STROHL POSITS THAT "A FRINGE OF ISLANDS
CAN MAKE UP ONE SIDE OF A BAY," STROHL , SUPRA, N. 23, AT 72, BUT
RECOGNIZES THAT THE ONLY PROVISION OF THE CONVENTION WHICH WOULD
AUTHORIZE SUCH A BASELINE IS ARTICLE 4.  ID., AT 60.  THIS CONCLUSION
IS NOT UNDERMINED BY OCCASIONAL REFERENCES TO AN INSULAR FORMATION AS
CREATING A "BAY."  SEE, E.G., (1955) 1 Y.B.INT'L L.COMM'N 211, BOUCHEZ,
SUPRA, N. 23, AT 233 (BOTH REFERRING TO LONG ISLAND SOUND); MANCHESTER
V. MASSACHUSETTS, 139 U.S. 240 (REFERRING TO BUZZARD'S BAY).  ONLY ONE
AUTHORITY APPEARS TO ASSUME, WITHOUT DISCUSSION, THAT A BAY FORMED BY
ISLANDS WOULD BE GOVERNED BY THE PROVISIONS OF ARTICLE 7.  PEARCY,
SUPRA, N. 78, AT 965.  (THE AREA IN QUESTION WAS THAT BETWEEN THE COAST
OF FLORIDA AND THE CHAIN OF KEYS CURVING TO THE SOUTH AND EAST.  THE
UNITED STATES POINTS OUT THAT THEY ARE LINKED BY A PERMANENT HIGHWAY
AND THEREFORE MAY BE CONSIDERED AS PART OF THE MAINLAND.) 

/96/  IN THE SAME VEIN, WE HELD THAT THE CHOICE WHETHER TO EMPLOY
THE CONCEPT OF A "FICTITIOUS BAY" WAS THAT OF THE FEDERAL GOVERNMENT
ALONE.  381 U.S.,AT 172.  THAT HOLDING WAS, OF COURSE, CONSISTENT WITH
THE CONCLUSION THAT THE DRAWING OF STRAIGHT BASELINES IS LEFT TO THE
FEDERAL GOVERNMENT, FOR A "FICTITIOUS BAY" IS MERELY THE CONFIGURATION
WHICH RESULTS FROM DRAWING STRAIGHT BASELINES FROM THE MAINLAND TO A
STRING OF ISLANDS ALONG THE COAST.  SEE 381 U.S.,AT 170, N. 38. 

/97/  LOUISIANA FURTHER CONTENDS THAT THE UNITED STATES IS ESTOPPED
FROM DENYING THE "INLAND WATER" STATUS OF SUCH AREAS BY ITS CONCESSION
IN EARLIER STAGES OF THIS LITIGATION THAT THE AREAS BETWEEN THE
MAINLAND AND ALL THE OFFSHORE ISLANDS WERE INLAND WATERS.  WE TOOK NOTE
OF THIS CONCESSION IN UNITED STATES V. LOUISIANA, 363 U.S. 1, 67, N.
108: 

"THE GOVERNMENT CONCEDES THAT ALL THE ISLANDS WHICH ARE WITHIN THREE
LEAGUES OF LOUISIANA'S SHORE AND THEREFORE BELONG TO IT UNDER THE TERMS
OF ITS ACT OF ADMISSION, HAPPEN TO BE SO SITUATED THAT THE WATERS
BETWEEN THEM AND THE MAINLAND ARE SUFFICIENTLY ENCLOSED TO CONSTITUTE
INLAND WATERS.  THUS, LOUISIANA IS ENTITLED TO THE LANDS BENEATH THOSE
WATERS QUITE APART FROM THE AFFIRMATIVE GRANT OF THE SUBMERGED LANDS
ACT, UNDER THE RULE OF POLLARD'S LESSEE V. HAGAN, 3 HOW.  212. 
FURTHERMORE, SINCE THE ISLANDS ENCLOSE INLAND WATERS, A LINE DRAWN
AROUND THOSE ISLANDS AND THE INTERVENING WATERS WOULD CONSTITUTE THE
'COAST' OF LOUISIANA WITHIN THE DEFINITION OF THE SUBMERGED LANDS ACT. 
SINCE THAT ACT CONFIRMS TO ALL STATES RIGHTS IN SUBMERGED LANDS THREE
MILES FROM THEIR COASTS, THE GOVERNMENT CONCEDES THAT LOUISIANA WOULD
BE ENTITLED NOT ONLY TO THE INLAND WATERS ENCLOSED BY THE ISLANDS, BUT
TO AN ADDITIONAL THREE MILES BEYOND THOSE ISLANDS AS WELL.  WE DO NOT
INTEND, HOWEVER, IN PASSING ON THESE MOTIONS, TO SETTLE THE LOCATION OF
THE COASTLINE OF LOUISIANA OR THAT OF ANY OTHER STATE." 

AS WE STRESSED IN THAT CASE, THIS COURT HAS PLACED NO IMPRIMATUR ON
THAT POSITION.  NOR DO WE THINK THE UNITED STATES IS BOUND BY IT.
LOUISIANA HAS NOT RELIED TO ITS DETRIMENT ON THE CONCESSION, WHICH
APPEARS TO HAVE BEEN MADE PRIMARILY FOR PURPOSES OF REACHING AGREEMENT
ON THE LEASING OF THE SUBMERGED LANDS PENDING A FINAL RULING ON THEIR
OWNERSHIP.  THE INTERIM AGREEMENT OF 1956 SPECIFICALLY RECOGNIZED THAT
NEITHER PARTY WOULD BE BOUND BY ITS POSITIONS: 

"THE SUBMERGED LANDS IN THE GULF OF MEXICO ARE DIVIDED FOR THE
PURPOSES HEREOF INTO FOUR ZONES AS SHOWN ON THE PLAT ANNEXED HERETO AS
EXHIBIT 'A,' WHICH REFLECTS AS A BASE LINE THE SO-CALLED 'CHAPMAN
LINE.'  NO INFERENCE OR CONCLUSION OF FACT OR LAW FROM THE SAID USE OF
THE SO-CALLED 'CHAPMAN-LINE' OR ANY OTHER BOUNDARY OF SAID ZONES IS TO
BE DRAWN TO THE BENEFIT OR PREJUDICE OF ANY PARTY HERETO . . . ." 
MOREOVER, WE NOTE THAT THE CONCESSION DID NOT INCLUDE AS INLAND WATERS
THE AREA LOUISIANA DESIGNATES AS "ISLE AU BRETON BAY."  SEE N. 87,
SUPRA. 

IT MIGHT BE ARGUED THAT THE UNITED STATES' CONCESSION REFLECTED ITS
FIRM AND CONTINUING INTERNATIONAL POLICY TO ENCLOSE INLAND WATERS
WITHIN ISLAND FRINGES.  IT IS NOT CONTENDED AT THIS TIME, HOWEVER, THAT
THE UNITED STATES HAS TAKEN THAT POSTURE IN ITS INTERNATIONAL RELATIONS
TO SUCH AN EXTENT THAT IT COULD BE SAID TO HAVE, IN EFFECT, UTILIZED
THE STRAIGHT BASELINE APPROACH SANCTIONED BY ARTICLE 4 OF THE
CONVENTION.  IF THAT HAD BEEN THE CONSISTENT OFFICIAL INTERNATIONAL
STANCE OF THE GOVERNMENT, IT ARGUABLY COULD NOT ABANDON THAT STANCE
SOLELY TO GAIN ADVANTAGE IN A LAWSUIT TO THE DETRIMENT OF LOUISIANA. 
CF. UNITED STATES V. CALIFORNIA, 381 U.S. 139, 168:  "(A) CONTRACTION
OF A STATE'S RECOGNIZED TERRITORY IMPOSED BY THE FEDERAL GOVERNMENT IN
THE NAME OF FOREIGN POLICY WOULD BE HIGHLY QUESTIONABLE."  WE DO NOT
INTEND TO PRECLUDE LOUISIANA FROM ARGUING BEFORE THE SPECIAL MASTER
THAT, UNTIL THIS STAGE OF THE LAWSUIT, THE UNITED STATES HAD ACTUALLY
DRAWN ITS INTERNATIONAL BOUNDARIES IN ACCORDANCE WITH THE PRINCIPLES
AND METHODS EMBODIED IN ARTICLE 4 OF THE CONVENTION ON THE TERRITORIAL
SEA AND THE CONTIGUOUS ZONE.     /98/  SEE N. 72, SUPRA. 

/99/  LOUISIANA ALSO SUGGESTS THAT THE INDENTATIONS BETWEEN THE
PASSES OF THE MISSISSIPPI RIVER DELTA ARE PART OF THE RIVER MOUTH AND
THEREFORE INLAND WATERS UNDER ARTICLE 13 OF THE CONVENTION: 

"IF A RIVER FLOWS DIRECTLY INTO THE SEA, THE BASELINE SHALL BE A
STRAIGHT LINE ACROSS THE MOUTH OF THE RIVER BETWEEN POINTS ON THE LOW
TIDE LINE OF ITS BANKS."  THE ARTICLE OBVIOUSLY DOES NOT ENCOMPASS
INDENTATIONS BETWEEN ARMS OF LAND FORMED BY THE RIVER BUT NOT
CONTAINING IT. 

/100/  THE UNITED STATES ARGUES THAT THE CONVENTION RECOGNIZES ONLY
HISTORIC BAYS AND NOT OTHER KINDS OF INLAND WATER BODIES.  WE DO NOT
PASS ON THIS CONTENTION EXCEPT TO NOTE THAT, BY THE TERMS OF THE
CONVENTION, HISTORIC BAYS NEED NOT CONFORM TO THE NORMAL GEOGRAPHIC
TESTS AND THEREFORE NEED NOT BE TRUE BAYS.  HOW UNLIKE A TRUE BAY A
BODY OF WATER CAN BE AND STILL QUALIFY AS A HISTORIC BAY WE NEED NOT
DECIDE, FOR ALL OF THE AREAS OF THE MISSISSIPPI RIVER DELTA WHICH
LOUISIANA CLAIMS TO BE HISTORIC INLAND WATERS ARE INDENTATIONS
SUFFICIENTLY RESEMBLING BAYS THAT THEY WOULD CLEARLY QUALIFY UNDER
ARTICLE 7(6) IF HISTORIC TITLE CAN BE PROVED. 

/101/  SEE SUPRA, AT 24. 

/102/  SEE N. 27, SUPRA. 

/103/  IN THIS THE UNITED STATES APPEARS TO BE CORRECT.  WHILE THE
UNAUTHORIZED ACTIVITIES OF PRIVATE CITIZENS COULD GENERALLY NOT SUPPORT
A CLAIM OF HISTORIC TITLE, SEE JURIDICAL REGIME OF HISTORIC WATERS,
INCLUDING HISTORIC BAYS, SUPRA, N. 27, AT 14-15; BOUCHEZ, SUPRA, N. 23,
AT 238; STROHL, SUPRA, N. 23, AT 303-304, THE ACTIONS OF LOCAL
GOVERNMENTS, IF NOT REPUDIATED BY OR INIMICAL TO THE INTERESTS OF THE
NATIONAL SOVEREIGN, ARE ASSERTIONS OF DOMINION AS AGAINST OTHER
NATIONS.  AND CLAIMS TO HISTORIC TITLE HAVE BEEN BASED IN PART ON SUCH
ACTIONS.  SEE THE OPINION OF THE COURT OF COMMISSIONERS OF ALABAMA
CLAIMS IN STETSON V. THE UNITED STATES, QUOTED IN 4 J.MOORE,
INTERNATIONAL ARBITRATIONS 4332, 4339 (1898); OPINION OF ATTORNEY
GENERAL RANDOLPH ON THE SEIZURE OF THE SHIP "GRANGE" IN DELAWARE BAY, 1
OP.ATTY.GEN.  32 (1793).  SEE GENERALLY MCDOUGAL & BURKE, SUPRA, N. 26,
AT 360-361. 

/104/  IT IS ONE THING TO SAY THAT THE UNITED STATES SHOULD NOT BE
REQUIRED TO TAKE THE NOVEL, AFFIRMATIVE STEP OF ADDING TO ITS TERRITORY
BY DRAWING STRAIGHT BASELINES.  IT WOULD BE QUITE ANOTHER TO ALLOW THE
UNITED STATES TO PREVENT RECOGNITION OF A HISTORIC TITLE WHICH MAY
ALREADY HAVE RIPENED BECAUSE OF PAST EVENTS BUT WHICH IS CALLED INTO
QUESTION FOR THE FIRST TIME IN A DOMESTIC LAWSUIT.  THE LATTER, WE
BELIEVE, WOULD APPROACH AN IMPERMISSIBLE CONTRACTION OF TERRITORY
AGAINST WHICH WE CAUTIONED IN UNITED STATES V. CALIFORNIA.  SEE N. 97,
SUPRA. 

THE CHIEF JUSTICE AND MR.JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

WE MUST DECIDE IN THIS CASE THE MEANING OF THE TERM "INLAND WATERS,"
AS USED IN THE SUBMERGED LANDS ACT OF 1953.  /1/  ALTHOUGH THE VALUE OF
ALL THE SUBMERGED LANDS PROBABLY COULD BE STATED ONLY IN ASTRONOMICAL
FIGURES, THIS DISPUTE IS A MINOR ONE INVOLVING ONLY A COMPARATIVELY
SMALL SEGMENT OF LAND ADJACENT TO LOUISIANA.  /2/  THE COURT CHOOSES AS
THE PROPER MEANING THE COMPLEX SERIES OF DEFINITIONS INCORPORATED IN
THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE, AN
INTERNATIONAL TREATY APPROVED BY THE PRESIDENT AND RATIFIED BY THE
SENATE.  /3/  IN MAKING THIS CHOICE, THE COURT RELIES ON THE RECENT
DECISION BY A DIVIDED COURT THAT THIS STANDARD SHOULD BE USED IN
DETERMINING THE BOUNDARIES OF CALIFORNIA'S "INLAND WATERS" ALONG THE
CALIFORNIA COAST.  UNITED STATES V. CALIFORNIA,381 U.S. 139 (1965)
(GENERALLY REFERRED TO AS THE SECOND CALIFORNIA CASE).  I CANNOT AGREE
TO APPLICATION OF THE SAME STANDARD TO LOUISIANA, WHERE COASTAL
CONDITIONS ARE WHOLLY DIFFERENT /4/  AND WHERE THE CONVENTION STANDARD,
WHICH THE COURT THOUGHT WOULD PROVIDE SOME CERTAINTY AND STABILITY FOR
CALIFORNIA, CAN ONLY CAUSE CHAOS AND CONFUSION.  NOR CAN I FIND ANY
JUSTIFICATION FOR APPLY THE CONVENTION STANDARD APPLIED IN THE SECOND
CALIFORNIA CASE TO LOUISIANA, A STATE THAT WAS NOT A PARTY TO THE WEST
COAST LITIGATION BUT URGES US TO ADOPT A DIFFERENT STANDARD, ONE
ESPECIALLY CONVENIENT FOR APPLICATION TO LOUISIANA'S OWN UNUSUAL COAST,
AND ONE NEVER EVEN CONSIDERED IN THE WEST COAST LITIGATION. 
LITIGATION.  /5/  UNDER THESE CIRCUMSTANCES I MUST DISSENT.  I WOULD
HOLD THAT "INLAND WATERS" SHOULD BE MEASURED IN LOUISIANA, AND IN ANY
OTHER STATE WITH SIMILAR COASTAL CHARACTERISTICS, BY THE STANDARD URGED
BY LOUISIANA-- THE COAST GUARD LINE ESTABLISHED YEARS AGO, UNDER THE
AUTHORITY OF AN 1895 ACT OF CONGRESS, TO MARK OFF THE BOUNDARIES OF THE
STATES'"INLAND WATERS."  SUCH A HOLDING WOULD PUT AN END TO A USELESS,
UNNECESSARY LITIGATION, OVER AN ISSUE THAT CAN WELL BE CHARACTERIZED AS
DE MINIMIS SO FAR AS THE PRACTICAL EFFECT TO THE UNITED STATES IS
CONCERNED. 

     I. 

IN 1947 THIS COURT DECIDED THAT NO ONE OF THE STATES BORDERING ON
THE ATLANTIC OR PACIFIC OCEAN OR ON THE GULF OF MEXICO OWNED ANY PART
OF THE LAND SUBMERGED UNDER THE WATERS LYING ADJACENT TO ITS SHORES. 
/6/  IN 1953 CONGRESS, IN THE SUBMERGED LANDS ACT, "RESTORED" TO THE
STATES WHAT IT THOUGHT OUR HOLDING HAD WRONGFULLY TAKEN AWAY FROM
THEM.  WHAT THE ACT DID WAS IN EFFECT TO QUITCLAIM TO EACH COASTAL
STATE SUBMERGED LAND EXTENDING THREE GEOGRAPHIC MILES SEAWARD FROM THE
STATE'S COASTLINE, EXCEPT THAT UNDER CERTAIN CIRCUMSTANCES STATES
BORDERING ON THE GULF OF MEXICO WERE ENTITLED TO A MAXIMUM OF NOT MORE
THAN THREE LEAGUES (ROUGHLY NINE GEOGRAPHIC MILES) FROM THE COASTLINE. 
UNDER THE ACT SUBMERGED LAND OF THE CONTINENTAL SHELF MORE THAN THREE
MILES OR THREE LEAGUES BEYOND THE COASTLINE IS PROPERTY OF THE UNITED
STATES.  THE ACT DEFINED "COAST LINE" IN SEC. 2(C) AS "THE LINE OF
ORDINARY LOW WATER ALONG THAT PORTION OF THE COAST WHICH IS IN DIRECT
CONTACT WITH THE OPEN SEA AND THE LINE MARKING THE SEAWARD LIMIT OF
INLAND WATERS."  THIS DEFINITION OF "COAST LINE" IS, OF COURSE, NOT
CLEAR ENOUGH IN ITSELF FOR ONE TO GO OUT AND LOOK AROUND THE WATERS AND
FIX THE BOUNDARY LINE BETWEEN SUBMERGED LANDS BELONGING TO THE FEDERAL
GOVERNMENT AND THOSE BELONGING TO THE STATES, PARTICULARLY SINCE THE
CRUCIAL TERM "INLAND WATERS" IS NOT DEFINED IN THE ACT AT ALL.  THERE
APPEARS TO BE ONE THING CERTAIN ABOUT THE PROBLEM, HOWEVER, AND THAT IS
THAT THE DISPUTE BETWEEN LOUISIANA AND THE UNITED STATES IS NO PART OF
INTERNATIONAL AFFAIRS SUBJECT TO INTERNATIONAL LAW, BUT IS EXCLUSIVELY
A DOMESTIC CONTROVERSY BETWEEN THE STATE AND NATION.  THE UNITED
STATES, NEVERTHELESS, CONTENDS THAT IN DETERMINING THIS PURELY DOMESTIC
DISPUTE, THE ACT'S WORDS MUST BE GIVEN THEIR CONTENT IN INTERNATIONAL
LAW AND THE CONTROLLING PRINCIPLES MUST BE FOUND IN THE INTERNATIONAL
CONVENTION.  THE UNITED STATES PLACES ITS CHIEF RELIANCE FOR THIS
CONTENTION ON THE SECOND CALIFORNIA CASE.  IN THAT CASE SOME QUESTIONS
AROSE ABOUT WHETHER CERTAIN SEGMENTS OF THE CALIFORNIA COASTLINE,
PARTICULARLY WITH REFERENCE TO BAYS, INLETS, SOUNDS, INDENTATIONS, AND
ISLANDS, WERE WITHIN CALIFORNIA'S INLAND WATERS.  THERE THE COURT DID
NOT PASS ON THE APPLICABILITY OF THE 1805 ACT OF CONGRESS, /7/  AND
SEEKING A SATISFACTORY WAY TO DETERMINE SOME OF THE PERPLEXING PROBLEMS
ABOUT TREATMENT OF BAYS, ETC., AS INLAND WATERS, A DIVIDED COURT
CONCLUDED TO RESORT TO THE TREATY MENTIONED.  THE MAJORITY BELIEVED
RELIANCE ON THE TREATY WAS DICTATED BY THE NEED TO ADOPT "THE BEST AND
MOST WORKABLE DEFINITIONS AVAILABLE," 381 U.S.,AT 165, THUS, AS IT WAS
BELIEVED, ADDING STABILITY TO THE OPERATION OF THE ACT AND CARRYING OUT
A PURPOSE OF THE ACT'S PROPONENTS TO GIVE SECURITY OF TITLE TO THE
STATE AND ITS OIL LESSEES. 

BUT IF THAT TURNS OUT TO BE THE RESULT OF USING THE TREATY
DEFINITIONS IN THE SECOND CALIFORNIA CASE, IT WILL CERTAINLY NOT BE THE
RESULT HERE, FOR THERE ARE CRUCIAL DIFFERENCES BETWEEN THE TWO COASTS. 
CALIFORNIA WATERS ARE IN THE MAIN DEEP AND OFTEN ARE NAVIGABLE VERY
CLOSE TO SHORE.  THERE ARE FEW INDENTATIONS ALONG THAT STATE'S COAST,
AND MOST OF THESE ARE SMOOTH OR RELATIVELY REGULAR IN SHAPE.  THE
SHORELINE IS, OF COURSE, SUBJECT TO CHANGES BY NATURAL FORCES, BUT THE
LAND ALONG THE SHORE IS FOR THE MOST PART HARD AND ROCKY, AND THEREFORE
SUCH CHANGES IN THE SHORELINE HAVE BEEN EXTREMELY GRADUAL.  THE
LOUISIANA COAST IS ENTIRELY DIFFERENT IN MANY WAYS.  THE WATERS OFF THE
SHORE ARE SHALLOW AND OFTEN NOT READILY NAVIGABLE.  THE SHORELINE IS
MARKED BY NUMEROUS COMPLEX INDENTATIONS, AND INDEED THE UNITED STATES,
IN A BRIEF FILED EARLIER IN THIS LITIGATION, ITSELF RECOGNIZED THAT
"(THE LOUISIANA COAST LINE IS AN EXTRAORDINARILY COMPLICATED ONE."  /8/
EVEN MORE IMPORTANT THAN THIS COMPLEXITY OF THE PRESENT COASTLINE IS
ITS HIGHLY VOLATILE NATURE.  THE MIGHTY MISSISSIPPI BRINGS SEDIMENT AND
MUD WHICH MAY BUILD UP LITTLE ISLANDS AND MUD ELEVATIONS ONE DAY AND
DESTROY THEM THE NEXT.  PARTS OF THE MISSISSIPPI DELTA ARE RECEDING AT
A RAPID RATE, WHILE IN OTHER PARTS DEPOSITS ARE RAPIDLY BEING BUILT UP.
RECENT PROJECTS ALONG THE ATCHAFALAYA RIVER MAY CAUSE THAT RIVER TO
BEGIN BUILDING ANOTHER MASSIVE DELTA THAT COULD GROW SEAWARD AT A RATE
OF ALMOST ONE MILE PER YEAR.  BECAUSE THE COAST IS COMPOSED OF SOFT,
SILT-LIKE MATERIAL, BECAUSE THE WATER IS FOR THE MOST PART RELATIVELY
SHALLOW, AND BECAUSE THE ELEVATION OF THE LAND ALONG THE SHORE IS
EXTRAORDINARILY LOW, THE SHORELINE OFTEN CHANGES DRASTICALLY MERELY AS
A RESULT OF TEMPORARY VARIATIONS IN WINDS AND WAVES.  OFFSHORE ISLANDS
SOMETIMES APPEAR OR DISAPPEAR SPONTANEOUSLY AS A RESULT OF THE SAME
FORCES, AND OF COURSE MAJOR HURRICANES TO WHICH LOUISIANA-- UNLIKE
CALIFORNIA-- IS OCCASIONALLY EXPOSED, CAUSE EVEN MORE SUBSTANTIAL
CHANGES. 

IN LOUISIANA, CONSEQUENTLY, THE COURT CANNOT CORRECTLY SAY ABOUT ITS
HOLDING WHAT IT SAID WITH SOME PLAUSIBILITY IN THE SECOND CALIFORNIA
CASE: 

"BEFORE TODAY'S DECISION NO ONE COULD SAY WITH ASSURANCE WHERE LAY
THE LINE OF INLAND WATERS AS CONTEMPLATED BY THE ACT; HENCE THERE COULD
HAVE BEEN NO TENABLE RELIANCE ON ANY PARTICULAR LINE.  AFTER TODAY THAT
SITUATION WILL HAVE CHANGED.  EXPECTATIONS WILL BE ESTABLISHED AND
RELIANCE PLACED ON THE LINE WE DEFINE . . . . 'FREEZING' THE MEANING OF
'INLAND WATERS' IN TERMS OF THE CONVENTION . . . SERVES TO FULFILL THE
REQUIREMENTS OF DEFINITENESS AND STABILITY WHICH SHOULD ATTEND ANY
CONGRESSIONAL GRANT OF PROPERTY RIGHTS BELONGING TO THE UNITED
STATES."  381 U.S.,AT 166-167. 

TODAY'S HOLDING DOES NOT GRANT LOUISIANA THE "DEFINITENESS AND
STABILITY" PROMISED TO CALIFORNIA.  A COMPANY HAVING AN OIL LEASE NOW
UNDER OCEAN WATERS OF LOUISIANA GETS NO MORE THAN AN AMBULATORY TITLE:
HERE TODAY AND GONE TOMORROW.  AND WITH ITS TITLE, I SUPPOSE, WILL GO
ALL OF ITS EXPENSIVE INVESTMENT IN DEVELOPING THE LEASE.  STABLE
BUSINESS CANNOT BE FOSTERED THAT WAY.  THE AMBULATORY TITLE, WHICH THE
COURT FINDS IN THE SUBMERGED LANDS ACT, I THINK FRUSTRATES THE JUST
EXPECTATIONS CONGRESS DESIRED THAT OIL COMPANIES HAVE IN THE STABILITY
OF THEIR LEASES FOR EXPLOITATION OF OIL UNDER THE SEA. 

NOTHING WAS SAID IN THE SECOND CALIFORNIA OPINION INDICATING THAT
THE TREATY PROVISIONS THE COURT BORROWED IN THAT CASE WERE TO BE
MECHANICALLY USED TO FIT EVERY LAND DISPUTE.  THE TREATY WAS CHOSEN
THERE BECAUSE THE COURT THOUGH IT PROVIDED THE "BEST AND MOST WORKABLE
DEFINITIONS AVAILABLE" IN THE DISPUTE BETWEEN CALIFORNIA AND THE UNITED
STATES; THE DOCTRINE CANNOT FIT ALL CASES.  IF IT WORKED FOR STABILITY
IN CALIFORNIA, IT HAS A DIRECTLY OPPOSITE EFFECT IN LOUISIANA. 
MOREOVER, THE DOCTRINE IS TENDING TO BRING ABOUT INTERMINABLE
LITIGATION.  PASSED 15 YEARS AGO, THE ACT HAS GENERATED LITIGATION THAT
IS NOT YET ABATING; WE HAVE ANOTHER DISPUTE SIMILAR TO THIS ONE BEFORE
US NOW, AND NEITHER THE UNITED STATES NOR THE STATE INDICATES THAT
THERE IS NOT FAR MORE TIME-CONSUMING LITIGATION STILL TO COME.  IN
FACT, DISCUSSION OF THIS CASE BY THE COURT REQUIRES 63 PAGES IN WHAT
APPEARS TO ME TO BE AS SUCCINCT AND CLEAR AN OPINION AS COULD HAVE BEEN
WRITTEN.  AND EVEN YET THE END OF THE DISPUTE HAS NOT ARRIVED.  HOW
MANY YEARS THE MASTER WHO MUST NOW BE APPOINTED WILL HAVE TO WORK, HOW
MANY PERSONS MUST BE HIRED TO HELP HIM, NO ONE CAN PREDICT.  SETTLING
AND INDENTIFYING BOUNDARIES ON LAND IS A SURVEYOR'S JOB; HE MUST GO TO
THE LAND WITH HIS INSTRUMENTS AND MARK IT OFF.  IDENTIFYING AN OCEAN
BOUNDARY, WE ARE TOLD BY THE BRIEFS AND ARGUMENTS OF BOTH PARTIES HERE,
IS A MUCH MORE COMPLEX JOB; IT TAKES MUCH TIME BY SURVEYORS,
CARTOGRAPHERS, PHOTOGRAPHERS, AND OCEANOGRAPHERS, A KNOWLEDGE OF
ANGLES, TIDES, ROLLING WATERS, HIGHER MATHEMATICS, ETC. /9/  SHORELINES
ARE CONSTANTLY CHANGING, AND THUS UNDER THE COURT'S FORMULA EVEN THIS
PAINSTAKING WORK CANNOT PROVIDE A MEANS OF MARKING THE BOUNDARY FOR ALL
TIME.  I CANNOT ACCEPT THE ARGUMENT THAT CONGRESS EVER INTENDED TO
IMPOSE ON THIS COURT SUCH AN UNJUDICIAL JOB.  I TURN THEREFORE TO
LOUISIANA'S CONTENTIONS THAT CONGRESS LONG AGO ADOPTED A PLAN AND
SELECTED A GOVERNMENT AGENCY TO DETERMINE WHERE THE INLAND WATER LINE
IS, THAT THIS AGENCY HAS CONSIDERED AND DETERMINED THAT LINE, MARKING
IT AS REQUIRED BY LAW, AND THAT THIS LINE, WHICH IS NOT MOVABLE BUT
FIXED, PROVIDES THE STABILITY AND CERTAINTY NECESSARY TO MAKE THE
PURCHASE AND EXPLOITATION OF OIL LEASES ON SUBMERGED LANDS A COMMERCIAL
SUCCESS.  TO THE EXTENT THAT MY ANALYSIS IS INCONSISTENT WITH OTHER
POSSIBLE INTERPRETATIONS OF THE SECOND CALIFORNIA CASE, IT MUST BE
RECOGNIZED THAT THE USUAL REASONS FOR STRONG DEFERENCE TO PRIOR
PRECEDENT ARE ALMOST WHOLLY ABSENT HERE.  STARE DECISIS IS A VALUABLE
PRINCIPLE BECAUSE BY MAKING THE GOVERNING LEGAL RULES PREDICTABLE, IT
ENABLES PRIVATE PARTIES TO DETERMINE THEIR RIGHTS WITHOUT LITIGATION
AND ENABLES LOWER COURTS TO DISPOSE OF THE GREAT BULK OF DISPUTES THAT
DO RESULT IN LITIGATION.  IN THE PRESENT UNIQUE SITUATION, HOWEVER,
ONLY A SMALL HANDFUL OF PARTIES IS AFFECTED BY THE GOVERNING LEGAL
RULE; SETTLEMENT ENTIRELY OUT OF COURT IS HIGHLY UNLIKELY UNDER THE
COURT'S CONVENTION RULE; AND IN PRACTICE THOUGH NOT OF NECESSITY, CF.
28 U.S.C.1251(B)(2), ALL THESE DISPUTES ARE BEING BROUGHT WITHIN THE
ORIGINAL JURISDICTION OF THIS COURT.  UNDER THESE CIRCUMSTANCES THIS
COURT SHOULD CERTAINLY NOT ADHERE BLINDLY TO ITS PREVIOUS HOLDINGS,
PARTICULARLY WHERE, AS HERE, THE STATE INVOLVED WAS NOT A PARTY TO THE
PRIOR LITIGATION AND THE CLAIM RAISED HERE BY LOUISIANA UNDER THE 1895
ACT WAS NEVER CONSIDERED IN THE PRIOR LITIGATION. 

        II 

IN 1895 CONGRESS PASSED THIS LAW: 

"THE SECRETARY OF THE TREASURY IS HEREBY AUTHORIZED, EMPOWERED AND
DIRECTED FROM TIME TO TIME TO DESIGNATE AND DEFINE BY SUITABLE BEARINGS
OR RANGES WITH LIGHT HOUSES, LIGHT VESSELS, BUOYS OR COAST OBJECTS, THE
LINES DIVIDING THE HIGH SEAS FROM RIVERS, HARBORS AND INLAND WATERS." 
/10/ THIS 1895 LAW WAS THE SUCCESSOR OF OTHER LAWS SHOWING
CONGRESSIONAL INTEREST IN MARKING THE BOUNDARIES BETWEEN INLAND AND
OUTER-SEA WATERS.  /11/  SUCH MARKS ARE NECESSARY IN ORDER FOR SHIPS TO
KNOW WHEN THEY MUST OBEY LOCAL SIGNALS IN THE INLAND WATERS OF A STATE,
AS DISTINGUISHED FROM THEIR DUTY TO OBSERVE INTERNATIONAL RULES AND
WARNINGS.  TITLE 33 OF THE U.S.C. CONTAINS OUR INLAND WATER RULES, FOR
INFRACTION OF WHICH COURTS CAN INFLICT PENALTIES CONSISTING OF FINES
AND SOMETIMES SHIP SEIZURES.  THE GOVERNMENT ARGUES THAT IT IS NOT THE
PURPOSE OF THIS STATUTE TO GIVE THE SECRETARY POWER TO MARK THIS
BOUNDARY EXCEPT TO CONTROL NAVIGATION.  TO BUTTRESS THIS CONTENTION,
REFERENCE IS MADE TO A FEW SPORADIC STATEMENTS BY SECRETARIES WHO HAD
OCCASION TO MARK BOUNDARIES AND BY SOME LEGISLATORS WHO HELPED PASS THE
STATUTE.  BUT SURELY THE GOVERNMENT IS NOT CONTENDING THAT CONGRESS IN
SOLEMNLY CONSIDERING OVER A PERIOD OF YEARS AND THEN PASSING THIS LAW
WAS DOING SO AS A KIND OF JOKE.  INTERNATIONAL AND LOCAL RULES OF
NAVIGATION ARE SERIOUS BUSINESS AND THE WARNINGS PUT OUT UNDER ORDER OF
CONGRESS TO INFORM SHIPS WHERE INLAND WATERS BEGIN MUST BE ACTED ON AND
OBEYED.  HERE NOT ONLY HAS THE LINE DELINEATING LOUISIANA'S WATERS BEEN
MARKED BUT ALSO THE STATE PASSED ACT 33 OF 1954 ACCEPTING THESE
GOVERNMENTAL MARKINGS AS SHOWING POSITIVELY AND CERTAINLY JUST WHERE
ITS INLAND WATER LINE IS LOCATED.  AND THERE IS NO DANGER THAT THIS
LINE WILL BE AMBULATORY SINCE THE LINE IS NOW MARKED, AND WILL NOT MOVE
AS SHORE CONDITIONS CHANGE.  NOR WILL FUTURE MODIFICATIONS IN THE LINE
BY THE COAST GUARD DISRUPT TITLE TO THESE INLAND WATERS OR TO THE LAND
AND OIL BENEATH THEM SINCE THIS COURT HAS REPEATED SEVERAL TIMES THAT A
STATE'S TERRITORY CANNOT BE TAKEN AWAY FROM IT BY CONGRESS WITHOUT ITS
CONSENT.  /12/  SUCH WAS THE UNDERSTANDING OF SENATOR CORDON, FLOOR
MANAGER FOR THE SUBMERGED LANDS ACT, WHO SAID: 

     "THE BOUNDARIES OF THE STATES CANNOT BE CHANGED BY CONGRESS

  WITHOUT THE CONSENT OF THE STATES.  WE CANNOT DO ANYTHING

  LEGISLATIVELY IN THAT FIELD, AND WE HAVE NOT SOUGHT TO DO SO IN

  THIS MEASURE."  /13/ 

ACCEPTANCE OF THE COAST GUARD'S INLAND WATER MARK FOR LOUISIANA FITS
PRECISELY WITHIN THE REASONS GIVEN FOR UTILIZING THE INTERNATIONAL
CONVENTION IN THE SECOND CALIFORNIA CASE.  IT WILL PUT A STOP TO
ETERNAL LITIGATION AND HELP RELIEVE THIS COURT OF THE HEAVY BURDEN
REPEATEDLY BROUGHT UPON US TO MAKE DECISIONS NONE OF US HAVE THE TIME
OR COMPETENCE TO MAKE.  IT WILL RELEASE THE TIME OF THE COURT TO DO
OTHER AND MORE IMPORTANT THINGS.  IT WILL HELP TO END FURTHER DELAY IN
OUR GIVING EFFECT TO THE DESIRE OF CONGRESS TO GRANT THE STATES FULL
OWNERSHIP AND CONTROL OVER SUBMERGED LANDS THREE MILES OR THREE LEAGUES
FROM THEIR COASTLINES.  AND IT WILL PROVIDE THE CERTAINTY AND STABILITY
WHICH ARE ABSOLUTELY ESSENTIAL FOR USEFUL DEVELOPMENT OF OUR OFF-SHORE
OIL RESOURCES. 

I DISSENT FROM THE COURT'S HOLDING. 

/1/  67 STAT. 29, 43 U.S.C. 1301-1315. 

/2/  FOR THIS REASON IT IS DIFFICULT TO UNDERSTAND WHY THE FEDERAL
GOVERNMENT IS SUBJECTING THE STATE OF LOUISIANA AND THIS COURT TO A
LONG SERIES OF TECHNICAL AND WASTEFUL LAWSUITS.  WHEN ALL OF THEM ARE
OVER THE UNITED STATES WILL HAVE LITTLE MORE UNDERSEA LAND THAN IT
ALREADY HAD.  THE ONLY PRACTICAL DIFFERENCE THAT I CAN SEE AT THE
MOMENT IF THE FEDERAL GOVERNMENT WINS IS THAT IT, INSTEAD OF THE STATE,
WILL HAVE POWER TO LEASE THE LAND TO SOME OIL COMPANY.  ON THE OTHER
HAND SHOULD LOUISIANA WIN, IT CAN LEASE THE LAND PERHAPS AT A BIGGER
PRICE AND THEN, AS I POINTED OUT IN A PRIOR SEPARATE OPINION, UNITED
STATES V. LOUISIANA, 363 U.S. 1, 85, 98-100, DEVOTE ITS OIL INCOME TO
PUBLIC EDUCATION. 

/3/  44 DEPT. STATE BULL.  609; (1964) 15 U.S.T.(T. 2) 1607,
T.I.A.S. NO. 5639. 

/4/  "HISTORY IS SUBJECT TO GEOLOGY.  EVERY DAY THE SEA ENCROACHES
SOMEWHERE UPON THE LAND, OR THE LAND UPON THE SEA; CITIES DISAPPEAR
UNDER THE WATER, AND SUNKEN CATHEDRALS RING THEIR MELANCHOLY BELLS. 
MOUNTAINS RISE AND FALL IN THE RHYTHM OF EMERGENCE AND EROSION; RIVERS
SWELL AND FLOOD, OR DRY UP, OR CHANGE THEIR COURSE; VALLEYS BECOME
DESERTS, AND ISTHMUSES BECOME STRAITS.  TO THE GEOLOGIC EYE ALL THE
SURFACE OF THE EARTH IS A FLUID FORM, AND MAN MOVES UPON IT AS
INSECURELY AS PETER WALKING ON THE WAVES TO CHRIST." 

W. & A. DURANT, THE LESSONS OF HISTORY 14-15 (1968). 

/5/  THE PROPRIETY OF USING THE COAST GUARD LINE AS THE SEAWARD LINE
OF INLAND WATERS WAS NOT LITIGATED IN THE SECOND CALIFORNIA CASE.  THE
ISSUE WAS NOT RAISED BY THE PLEADINGS; NOR WAS IT ARGUED.  THE POINT
WAS RAISED ONCE ON ORAL ARGUMENT WHEN MR. JUSTICE BRENNAN ASKED IF THE
UNITED STATES RELIED ON THE COAST GUARD LINE.  MR. COX, THE SOLICITOR
GENERAL, REPLIED THAT THE UNITED STATES PLACED NO RELIANCE ON IT, THE
PURPOSE OF THAT LINE BEING "TO INDICATE WHERE THE INLAND RULES
APPLICABLE TO VESSELS CONTROL AND WHERE THE INTERNATIONAL OCEAN RULES
CONTROL."  HE ADDED THAT LOUISIANA WILL CONTEND, WHEN HER CASE REACHES
HERE, THAT THE COAST GUARD LINE DOES CONTROL BUT THAT IT WAS NOT
INVOLVED IN THE CALIFORNIA SEGMENT OF THE LITIGATION. 

/6/  UNITED STATES V. CALIFORNIA, 332 U.S. 19 (1947). 

/7/  THIS IS VIVIDLY DEMONSTRATED BY THE COLLOQUY BETWEEN MR.
JUSTICE BRENNAN AND SOLICITOR GENERAL COX, REFERRED TO IN N. 5 ABOVE: 

"JUSTICE BRENNAN:  NOW, I HAVE FORGOTTEN-- MAYBE THE BRIEFS COVER
THIS PROVISION OF TITLE 33 UNDER WHICH THE COMMANDANT OF THE COAST
GUARD IS REQUIRED TO FIX THE LINES DIVIDING THE HIGH SEAS FROM INLAND
WATERS. 

"DO YOU RELY ON THAT AT ALL? 

"MR. COX:  OH, NO. AND NEITHER DOES CALIFORNIA. 

"JUSTICE BRENNAN:  WELL, WOULD YOU TELL ME WHY PART (A)(2) OF THAT
TITLE DEALING WITH THIS VERY SECTION, FOR EXAMPLE, THERE IS A
PROVISIONS THAT "THE OUTER LIMITS OF INLAND WATERS IN SANTA BARBARA
HARBOR SHALL BE,' AND THEN THERE IS A DESCRIPTION, A LINE DRAWN FROM
SANTA BARBARA, THE LIGHT-BLUE ONE, PAST THE SANTA BARBARA HARBOR
BREAKWATER WHICH, IF I LOCATE IT ON THIS MAP, IS SOME LITTLE SEGMENT
AWAY IN THE UPPER CORNER, BENEATH THE WORD 'SANTA BARBARA?  BARBARA' ON
YOUR MAP.  BUT YOU DON'T RELY AT ALL ON THE DEFINITION OF INLAND WATERS
ON CONGRESSIONAL DEFINITION IN ANOTHER STATUTE. 

"MR. COX:  NO. NO. WE THINK THAT THOSE STATUTES RELATE SIMPLY TO--
HAD ONE PURPOSE AND ONLY ONE PURPOSE, AND THAT IS TO INDICATE WHERE THE
INLAND RULES APPLICABLE TO VESSELS CONTROL AND WHERE THE INTERNATIONAL
OCEAN RULES CONTROL. 

"JUSTICE BRENNAN:  JUST TRAFFIC RULES OF THE ROAD. 

"MR.COX:  THEY ARE JUST TRAFFIC RULES OF THE ROAD, WE WOULD SAY. 

"NOW, IN THE LOUISIANA CASE, IF AND WHEN IT EVER GETS HERE,
LOUISIANA WILL CONTEND IT RELIES ON THAT BECAUSE IN THAT INSTANCE IT
HAPPENS THAT THE COAST GUARD LINE IS PLACED WAY OUT IN THE GULF, BUT
HERE IT IS APPARENTLY PLACED WAY IN. 

"JUSTICE BRENNAN:  AS I GET IT, IT IS ONLY A TINY BIT OF A CORNER UP
THERE AT THAT POINT. 

"MR. COX:  THAT IS RIGHT.  AND, OF COURSE, THIS IS TERRIBLY DEEP
WATER AND OCEAN-GOING VESSELS USE IT. 

"NOW, I SHOULD SAY THAT THERE ARE SOME SMALL POINTS IN THESE BAYS
THAT WE WOULD AGREE WERE HARBORS.  FOR EXAMPLE, WE WOULD AGREE THAT UP-
IF YOU CAN REMEMBER MONTEREY BAY-- THAT IS NOT ON THIS MAP-- IT SORT
OF HOOKS AROUND, COMES AROUND IN LIKE THIS (DEMONSTRATING), AND THE
SHORE COMES OUT THIS WAY.  WE WOULD AGREE THAT THESE LITTLE POINTS UP
HERE ARE HARBORS.  IF YOU HAVE BEEN TO MONTEREY, WE WOULD AGREE THAT
THE AREA IN WHICH YOU SEE FISHING VESSELS ANCHORED, UP THERE AT THE
DOCK, THAT IS A HARBOR.  THAT HAS NOT BEEN ARGUED ABOUT HERE.  WE
CONCEDE.  AND THERE MAY BE A FEW LITTLE POINTS UP NEXT TO SANTA BARBARA
THAT COME THE SAME WAY AS HARBORS. 

"JUSTICE BRENNAN:  WELL, I NOTICE THAT THE COMMANDANT HAS DEFINED
INLAND WATERS FROM MONTEREY HARBOR, SAN LUIS OBISPO, SAN PEDRO, SANTA
BARBARA, CRESCENT CITY, ISTHMUS COVE AT SANTA CATALINA AND AVALON BAY,
BUT YOU DON'T RELY ON ANY OF THESE. 

"MR. COX:  NO. WE DON'T RELY ON ANY OF THEM. 

"JUSTICE BRENNAN:  YOU DON'T RELY ON THAT. 

"MR. COX: WE DON'T RELY ON IT, NO." 

/8/  MEMORANDUM FOR THE UNITED STATES IN REPLY TO LOUISIANA'S BRIEF
IN OPPOSITION TO MOTION FOR LEAVE TO FILE COMPLAINT, MARCH 7, 1956, PP.
9-10. 

/9/  SEE MY DISSENT FILED TODAY IN THE TEXAS BOUNDARY CASE.  ANTE,
AT 8, N. 2. 

/10/  28 STAT. 672.  THIS ACT HAS BEEN CHANGED BY SUBSTITUTING FOR
THE SECRETARY OF THE TREASURY THE SECRETARY OF COMMERCE, AND LATER BY
PLACING THE RESPONSIBLITY WITH THE COMMANDANT OF THE COAST GUARD.  NOW
33 U.S.C.151. 

/11/  E.G., 23 STAT. 438 (1885); 26 STAT. 320 (1890). 

/12/  SEE, E.G., FORT LEAVENWORTH R. CO. V. LOWE, 114 U.S. 525, 541
(1885); GEOFROY V. RIGGS, 133 U.S. 258, 267 (1890). 

/13/  99 CONG.REC.  2634. 

VICTOR A. SACHSE AND J. B. MILLER, SPECIAL ASSISTANT ATTORNEYS GENERAL
OF LOUISIANA, ARGUED THE STATE OF LOUISIANA'S MOTION FOR ENTRY OF
SUPPLEMENTAL DECREE.  WITH THEM ON THE BRIEFS WERE JACK P. F.
GREMILLION, ATTORNEY GENERAL, PAUL M. HEBERT, THOMAS W. LEIGH, ROBERT
F. KENNON, W. SCOTT WILKINSON, J. J. DAVIDSON, OLIVER P. STOCKWELL,
FREDERICK W. ELLIS, AND ANTHONY J. CORRERO III, SPECIAL ASSISTANT
ATTORNEYS GENERAL, AND JOHN L. MADDEN, ASSISTANT ATTORNEY GENERAL. 

ARCHIBALD COX ARGUED FOR THE UNITED STATES ON CROSS-MOTION FOR
SUPPLEMENTAL DECREE AS TO THE STATE OF LOUISIANA.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
MARTZ, LOUIS F. CLAIBORNE, ROGER P. MARQUIS, AND GEORGE S. SWARTH. 
..END :







UTAH V. UNITED STATES, 394 U.S. 89 


       UTAH V. UNITED STATES. 

        ON EXCEPTIONS TO SPECIAL MASTER'S REPORT. 

        NO. 31, ORIG.  DECIDED MARCH 3, 1969. 


IN THIS DISPUTE BETWEEN THE UNITED STATES AND UTAH OVER OWNERSHIP OF
THE GREAT SALT LAKE, THE SPECIAL MASTER REFUSED TO PERMIT THE
INTERVENTION BY MORTON INTERNATIONAL, INC., A CLAIMANT TO PART OF THE
PROPERTY, BECAUSE UTAH HAD NOT WAIVED ITS SOVEREIGN IMMUNITY AS TO
MORTON'S SUIT.  HELD:  THE SPECIAL MASTER'S REPORT WILL BE PLACED ON
FILE AND HIS DENIAL OF INTERVENTION IS APPROVED, SINCE A STIPULATION
ENTERED INTO BETWEEN UTAH AND THE UNITED STATES HAS SO LIMITED THE
ISSUES THAT THE PRESENCE OF MORTON AND OTHER PRIVATE CLAIMANTS IS
NEITHER NECESSARY NOR APPROPRIATE. 

PER CURIAM 

WE ARE CALLED UPON TO DEAL WITH EXCEPTIONS FILED BY MORTON
INTERNATIONAL, INC., WHICH PROTESTS THE DECISION BY OUR SPECIAL MASTER,
SENIOR CIRCUIT JUDGE J. CULLEN GANEY, DENYING IT LEAVE TO INTERVENE AS
A PARTY DEFENDANT IN THIS ORIGINAL ACTION.  WHILE WE AFFIRM THEMASTER'S
DECISION, WE DO SO FOR REASONS WHICH ARE SOMEWHAT DIFFERENT FROM THOSE
ADVANCED IN THE MASTER'S REPORT.  CONSEQUENTLY, IT WILL BE NECESSARY TO
DESCRIBE THE NATURE OF THE UNDERLYING CONTROVERSY BEFORE THE BASIS FOR
OUR DISPOSITION OF THIS MATTER WILL BECOME CLEAR. 

THIS CASE ARISES OUT OF A LONG-STANDING DISPUTE BETWEEN THE UNITED
STATES AND UTAH OVER THE OWNERSHIP OF THE GREAT SALT.  LAKE.  THE
IMPORTANCE AND DIFFICULTY OF THE CONTROVERSY IS MAGNIFIED BY THE FACT
THAT, OVER THE COURSE OF YEARS, THE LAKE HAS PROCEEDED TO SHRINK IN
SIZE, LAYING BARE SOME 600,000 ACRES OF LAND WHICH HAD FORMERLY BEEN A
PART OF THE LAKEBED (THE SO-CALLED "RELICTED" LANDS).  IN 1966,
CONGRESS MOVED TO RESOLVE THE CONTROVERSY BY PASSING A SPECIAL ACT, 80
STAT. 192, AS AMENDED, 80 STAT. 349, WHICH BOTH AUTHORIZED THE
SECRETARY OF INTERIOR TO ISSUE A QUITCLAIM DEED TO THE STATE FOR THE
ENTIRE FEDERAL INTEREST IN THE LAKE PROPERTIES AND PROVIDED A MECHANISM
BY WHICH THE FAIR VALUE OF THE FEDERAL INTEREST COULD BE ASCERTAINED. 
IN CONSIDERATION OF THE SECRETARY'S DEED, UTAH WAS OBLIGED EITHER TO
PAY THE FEDERAL GOVERNMENT AN AMOUNT FIXED BY THE SECRETARY OR BRING A
LAWSUIT IN THIS COURT SO THAT THE EXTENT OF THE FEDERAL CLAIM COULD BE
JUDICIALLY DETERMINED. 

UTAH AND THE UNITED STATES, HOWEVER, ARE NOT ALONE IN ADVANCING
CLAIMS TO THE STILL SUBMERGED AND NOW-RELICTED PORTIONS OF THE LAKE. 
MORTON ALSO CLAIMS PART OF THE PROPERTY, AND SEEKS TO INTERVENE TO
QUIET ITS TITLE.  OUR SPECIAL MASTER'S REPORT CAREFULLY SETS OUT THE
NATURE OF THE COMPETING CLAIMS OF THE TWO SOVEREIGNS AND THE PRIVATE
LANDLORD: 

     "1.  THE STATE OF UTAH CLAIMS THAT ON JANUARY 4, 1896, THE
DATE

  IT WAS ADMITTED TO THE UNION, THE GREAT SALT LAKE WAS A NAVIGABLE

  BODY OF WATER.  ON THE BASIS OF THIS FACT AND THE 'EQUAL FOOTING

  DOCTRINE,' IT ASSERTS THAT IT IS THE OWNER OF THE LAKE'S BED AS

  DELINEATED AND DETERMINED BY THE OFFICIAL SURVEYED MEANDER LINE

AND THAT THE LAND (SOME 600,000 ACRES) LEFT EXPOSED BY THE

  RECESSION OF THE LAKE BETWEEN THE WATER'S EDGE AND THE MEANDER

  LINE, KNOWN AS 'PUBLIC DOMAIN RELICTION,' IS PART OF THAT BED . .

  . . 

     "2.  THE UNITED STATES CLAIMS, EXCLUDING THOSE EXPOSED LANDS

  LAKEWARD FROM THE UPLAND /1/  TRANSFERRED TO PATENTEES, TITLE TO

  A SUBSTANTIAL PORTION (SOME 325,574 ACRES) OF THE EXPOSED LANDS

  (KNOWN AS 'PUBLIC DOMAIN RELICTION' LANDS) CLAIMED BY UTAH AS

PART OF THE LAKE'S BED.  THE BASIS FOR THIS CLAIM IS THAT IT WAS

  THE ORIGINAL OWNER OF THE UPLANDS AND FOR THAT REASON IT IS

  ENTITLED TO THE EXPOSED LANDS UNDER THE COMMON-LAW DOCTRINE OF

  RELICTION.  /2/ 

     "3.  PRIVATE VENDEES OR PATENTEES OF THE LAKE'S UPLANDS WHOSE

  INTEREST CAN BE TRACED TO THE UNITED STATES CLAIM ALL THE LAND

LAKEWARD FRONTING SUCH UPLANDS.  THEIR CLAIMS DO NOT STOP AT THE

  WATER'S EDGE BUT CONTINUE TO THE THREAD OF THE LAKE.  THEY

  CONTEND THAT THE PATENTS IMPLIEDLY PASSED TITLE TO THE RELICTED

  LAND TO THE OWNER OF THE ADJOINING UPLANDS.  THE COMBINED AREA OF

  THE EXPOSED LAND CLAIMED BY THIS GROUP AMOUNTS TO APPROXIMATELY

  275,000 ACRES.  MORTON IS A GOOD EXAMPLE OF ONE OF THIS GROUP. 

     "4.  IN ADDITION, HOWEVER, THE UNITED STATES ALSO CLAIMS THE

  RELICTED LAND FRONTING THE UPLANDS OF SOME OF THE PATENTEES (OR

  THOSE CLAIMING THROUGH THEM) UNDER THE SO-CALLED BASART

  DOCTRINE.  THE TOTAL AREA CLAIMED UNDER THIS DOCTRINE IS

APPROXIMATELY 108,780 ACRES, AND IS REFERRED TO AS 'PUBLIC LAND

  RELICTION UNDER BASART.'  THESE PRIVATE OWNERS (INCLUDING

  MORTON), OF COURSE, DISAGREE THAT THE BASART DOCTRINE IS

  APPLICABLE TO THESE LANDS." 

MASTER'S REPORT 6-8. 

THE SPECIAL MASTER FOUND THAT THE CLAIM RAISED BY MORTON AND THE
CLAIMS RAISED IN THE "MAIN ACTION HAVE A QUESTION OF LAW OR FACT IN
COMMON" AND THAT, CONSEQUENTLY, "A DISTRICT JUDGE WOULD EXERCISE HIS
DISCRETION AND PERMIT (MORTON) TO INTERVENE IN THE ACTION."  REPORT
39.  THE SPECIAL MASTER, HOWEVER, REFUSED TO TAKE THIS STEP ONLY
BECAUSE HE FOUND THAT THE STATE OF UTAH HAD NOT WAIVED ITS SOVEREIGN
IMMUNITY AS TO MORTON'S SUIT. 

UPON CAREFUL CONSIDERATION, WE DO NOT FIND IT NECESSARY TO REACH THE
GROUND ADOPTED IN THE REPORT.  FOR WE HAVE CONCLUDED THAT A STIPULATION
ENTERED INTO BETWEEN THE UNITED STATES AND UTAH, WHICH WAS PRESENTED TO
THE MASTER, HAS SO LIMITED THE ISSUES BEFORE THIS COURT THAT THE
PRESENCE OF MORTON AND SIMILAR PROPERTY OWNERS IS NEITHER NECESSARY NOR
APPROPRIATE.  HENCE, IN THE EXERCISE OF OUR DISCRETION, WE FIND THAT
THE INTERESTS OF JUSTICE AND SOUND JUDICIAL ADMINISTRATION WILL BEST BE
SERVED IF MORTON'S MOTION IS DENIED. 

THE ENTRY OF THE STIPULATION SIGNIFICANTLY CHANGES THE NATURE OF THE
PROBLEM BEFORE US.  IF THE STIPULATION HAD NEVER BEEN FILED, IT IS
CLEAR THAT UTAH COULD HAVE ATTEMPTED TO DEFEAT THE FEDERAL CLAIM TO THE
BASART LANDS BY PROVING THAT PRIVATE LANDLORDS LIKE MORTON HAD THE BEST
TITLE TO THEM.  IN SUCH A SITUATION, MORTON'S RIGHT TO INTERVENE WOULD
HAVE HAD A SUBSTANTIAL BASIS.  FOR IF UTAH SOUGHT TO INVOKE MORTON'S
TITLE TO AVOID PAYMENT TO THE UNITED STATES, IT WOULD SEEM FAIREST TO
PERMIT MORTON TO SPEAK FOR ITSELF.  THE STIPULATION MAKES IT CLEAR,
HOWEVER, THAT UTAH WILL NOT ATTEMPT TO DEFEAT THE UNITED STATES' CLAIM
TO THE BASART LANDS BY PROVING THAT THE PRIVATE LANDOWNERS HAVE THE
BEST TITLE TO THIS ACREAGE.  IN OTHER WORDS, IF UTAH DOES NOT PROVE
THAT IT OWNS THE LAKE PROPERTIES, IT HAS AGREED TO PAY THE UNITED
STATES REGARDLESS OF THE OTHER CLOUDS ON THE FEDERAL CLAIM. 

ON ITS SIDE, THE UNITED STATES HAS ALSO TAKEN STEPS TO REMOVE THE
BASART QUESTION FROM THIS LAWSUIT BY MEANS OF THE STIPULATION.  IT HAS
AGREED THAT IT WILL NOT DEMAND PAYMENT FOR ITS BASART CLAIMS, IF THE
COURT FINDS THAT ITS CLAIMS TO THE OTHER DISPUTED ACREAGE HAVE NO
MERIT.  CONSEQUENTLY, IT WILL BE UNNECESSARY TO CONSIDER WHETHER THE
UNITED STATES OR THE PRIVATE LANDOWNERS HAVE TITLE TO THE BASART LANDS
IN ORDER TO DETERMINE WHETHER THE STATE MUST PAY FAIR VALUE TO THE
UNITED STATES IN CONSIDERATION FOR THE SECRETARY'S QUITCLAIM DEED. 
THUS, IF THE STIPULATION IS VALID, THE SUBSTANTIAL NEED FOR MORTON'S
PRESENCE NO LONGER EXISTS. 

MORTON, HOWEVER, ATTACKS THE VALIDITY OF THE STIPULATION AGREED UPON
BY THE TWO SOVEREIGNS.  /3/  WHILE IT DOES NOT DENY THAT THE PARTIES TO
AN ORDINARY LAWSUIT MAY LIMIT THE ISSUES THEY WILL TENDER TO THE COURT
FOR DECISION, MORTON POINTS OUT THAT THIS IS NO ORDINARY LAWSUIT, BUT
ONE WHOSE NATURE IS DEFINED BY THE SPECIAL ACT OF CONGRESS, SUPRA, IN
WHICH THE UNITED STATES WAIVED ITS IMMUNITY IN THIS LITIGATION.  MORTON
ARGUES THAT THE STIPULATION HAS TRANSFORMED THE SUIT IN A WAY THAT IS
CONTRARY TO CONGRESS' INTENTION, AND THAT CONSEQUENTLY THIS COURT
SHOULD NOT ACCEPT THE PARTIES ATTEMPT TO NARROW THE ISSUES. 

WE CANNOT, HOWEVER, ACCEPT THE PREMISE UPON WHICH MORTON'S ARGUMENT
IS BASED.  WE FIND THAT THE STIPULATION DOES NOT TRANSFORM THE ACTION
IN A WAY WHICH CONGRESS WOULD HAVE DISAPPROVED.  THE STRUCTURE OF THE
RELEVANT ACT INDICATES DECISIVELY THAT CONGRESS DID NOT ANTICIPATE THAT
THIS ACTION WOULD NECESSARILY LEAD TO AN ADJUDICATION OF THE PRIVATE
PARTIES' CLAIMS TO THE BASART LANDS.  SECTION 5 OF THE ACT GAVE UTAH
THE RIGHT TO PAY OVER AN AMOUNT OF MONEY DETERMINED BY THE SECRETARY OF
THE INTERIOR AFTER THE SECRETARY HAD GIVEN "CONSIDERATION TO ALL
FACTORS HE DEEMS PERTINENT TO AN EQUITABLE RESOLUTION OF THE QUESTION
OF THE PROPER CONSIDERATION TO BE PAID BY THE STATE OF UTAH . . . ." 
IF THE STATE HAD TAKEN THIS OPTION, THE PRIVATE LANDOWNERS WOULD NEVER
OF COURSE HAVE HAD AN OPPORTUNITY TO INVOKE THE ORIGINAL JURISDICTION
OF THIS COURT SINCE UTAH WOULD NEVER HAVE FILED ITS COMPLAINT. 
CONSEQUENTLY, IT IS DIFFICULT TO BELIEVE THAT THE WILL OF CONGRESS WILL
BE FRUSTRATED IF THE ISSUES TENDERED TO THIS COURT BY THE SOVEREIGNS
ARE STRUCTURED SO THAT WE MAY RESOLVE THEIR DISPUTE WITHOUT CONSIDERING
THE ADDITIONAL CLAIMS ADVANCED BY THE PRIVATE PARTIES.  /4/ 

SIMILARLY, WE DO NOT FIND ANY MERIT IN MORTON'S CHALLENGE TO THAT
PART OF THE STIPULATION IN WHICH THE UNITED STATES HAS PROMISED NOT TO
DEMAND PAYMENT FOR ITS BASART CLAIMS, IF ITS OTHER CLAIMS ARE NOT
VINDICATED.  MORTON ARGUES THAT THE SOLICITOR GENERAL IS WITHOUT
AUTHORITY TO GIVE AWAY POTENTIALLY VALUABLE PROPERTY WHEN CONGRESS HAS
EXPRESSLY REQUIRED THAT THE NATION RECEIVE FAIR VALUE.  BUT THIS
ARGUMENT IGNORES THE FACT THAT THE SOLICITOR GENERAL HAS INDICATED IN
HIS BRIEF THAT HE BELIEVES HE CAN ADVANCE NO COLORABLE ARGUMENT WHICH
COULD CONCEIVABLY VINDICATE THE FEDERAL GOVERNMENT'S BASART INTEREST IF
THE GOVERNMENT'S RIGHT TO THE OTHER DISPUTED PROPERTY IS NOT UPHELD. 
THIS BEING SO, THE SOLICITOR GENERAL, ACTING UNDER HIS BROAD AUTHORITY
TO CONDUCT THE FEDERAL GOVERNMENT'S LITIGATION IN THIS COURT, 28 U.S.C.
518 (1964 ED., SUPP. III), WAS SURELY ENTITLED TO REMOVE THE ISSUE FROM
THE CASE. 

FINALLY, MORTON CLAIMS THAT UNDER RULE 19(A) OF THE FEDERAL RULES OF
CIVIL PROCEDURE IT SHOULD BE PERMITTED TO INTERVENE BECAUSE ITS ABSENCE
WILL "LEAVE (ONE) OF THE PERSONS ALREADY PARTIES SUBJECT TO A
SUBSTANTIAL RISK OF INCURRING DOUBLE, MULTIPLE, OR OTHERWISE
INCONSISTENT OBLIGATIONS BY REASON OF HIS CLAIMED INTEREST."  MORTON
CONTENDS THAT UTAH MAY BE OBLIGED TO PAY THE UNITED STATES FOR THE
BASART CLAIMS IN THIS PRESENT ACTION, ONLY TO HAVE ANOTHER COURT LATER
FIND THAT THE PRIVATE LANDOWNERS IN FACT HAVE THE BEST TITLE, REQUIRING
UTAH TO PAY AGAIN IF IT WISHES TO CONTROL THE BASART LANDS.  BUT UTAH
HAS NEVER FAVORED MORTON'S MOTION TO INTERVENE, DESPITE THE FACT THAT
THE COMPANY'S ABSENCE HERE MAY MEAN THAT THE STATE MAY ULTIMATELY BE
OBLIGED TO PAY FOR THE LANDS A SECOND ITEM.  INDEED, UTAH HAS
CONSISTENTLY OPPOSED MORTON'S MOTION.  SINCE THE FEDERAL RULES ARE A
GUIDE TO THE CONDUCT OF ORIGINAL ACTIONS IN THIS COURT ONLY "WHERE
THEIR APPLICATION IS APPROPRIATE," RULE 9(2) OF THE RULES OF COURT, AND
SINCE OUR ORIGINAL JURISDICTION SHOULD BE INVOKED SPARINGLY, WE HOLD
THAT THE STATE OF UTAH MAY PROPERLY WAIVE THE PROTECTION OF RULE 19
HERE.  /5/ 

WHILE WE CAN PERCEIVE NO COMPELLING REASON REQUIRING THE PRESENCE OF
MORTON IN THIS LAWSUIT, THERE ARE SUBSTANTIAL REASONS FOR DENYING
INTERVENTION.  IF MORTON IS ADMITTED, FAIRNESS WOULD REQUIRE THE
ADMISSION OF ANY OF THE OTHER 120 PRIVATE LANDOWNERS WHO WISH TO QUIET
THEIR TITLE TO PORTIONS OF THE RELICTED LANDS, GREATLY INCREASING THE
COMPLEXITY OF THIS LITIGATION.  MOREOVER, IF ANY PRIVATE LANDLORD WHO
IS A CITIZEN OF UTAH SHOULD SEEK TO INTERVENE, WE WOULD BE REQUIRED TO
DECIDE THE DIFFICULT CONSTITUTIONAL QUESTION AS TO WHETHER THIS COURT
MAY RETAIN ITS ORIGINAL JURISDICTION OVER AN ACTION IN WHICH COMPLETE
DIVERSITY OF CITIZENSHIP NO LONGER EXISTS BETWEEN THE CONTESTING
PARTIES. 

WITH THE ISSUES LIMITED BY THE STIPULATION, WE FIND, AS DID THE
SPECIAL MASTER, THAT THE SOLICITOR GENERAL MAY BE RELIED UPON TO
REPRESENT THE LIMITED INTERESTS OF THE PRIVATE LANDLORDS IN THIS CASE. 
WHILE MORTON DOUBTLESS WISHES TO HAVE US SETTLE ITS ADDITIONAL CLAIMS,
WE DECLINE TO PERMIT INTERVENTION FOR THE SOLE PURPOSE OF PERMITTING A
PRIVATE PARTY TO INTRODUCE NEW ISSUES WHICH HAVE NOT BEEN RAISED BY THE
SOVEREIGNS DIRECTLY CONCERNED.  WE ARE THUS CONSTRAINED TO REQUIRE THE
COMPANY TO SEEK ANOTHER FORUM WHICH MAY, WITH GREATER EFFICIENCY, HEAR
AND DECIDE ITS CLAIMS, TOGETHER WITH ANY DEFENSES THE SOVEREIGN
CONCERNED WISHES TO INTERPOSE. 

WE ALSO AGREE WITH THE SPECIAL MASTER THAT "IT IS EQUITABLE AND IN
GOOD CONSCIENCE TO PROCEED TO ADJUDICATE THE CONTROVERSY BETWEEN THE
STATE OF UTAH AND THE UNITED STATES" IN MORTON'S ABSENCE, REPORT 47,
AND WE HEREBY AUTHORIZE HIM TO PROCEED TO THE MERITS. 

THE REPORT OF THE SPECIAL MASTER WILL BE PLACED ON FILE AND HIS
DETERMINATION DENYING INTERVENTION TO MORTON INTERNATIONAL, INC., IS
APPROVED.  /6/

          IT IS SO ORDERED. 

/1/  UPLANDS ARE LOTS ABOVE AND ADJACENT TO THE MEANDER LINE.  (THIS
IS MASTER GANEY'S FOOTNOTE.  THE MASTER'S OTHER FOOTNOTES HAVE BEEN
OMITTED.) 

/2/  THE UNITED STATES ALSO ADVANCES A CLAIM, NOT HERE DETAILED BY
THE MASTER, TO CERTAIN PORTIONS OF THE STILL SUBMERGED LANDS AS WELL AS
THE BRINES AND MINERALS IN THE LAKE. 

/3/  WHILE IN THE ORIGINAL STIPULATION, THE TWO SOVEREIGNS SOUGHT TO
DEFER DECISION AS TO WHICH OF THEM OWNED THE STILL SUBMERGED LANDS
UNDER THE LAKE, AS WELL AS THE LAKE'S BRINES AND MINERALS, THE SPECIAL
MASTER RULED THAT THE UNITED STATES MUST CONTEST THE STATE'S CLAIMS TO
THESE RESOURCES IN THE PRESENT ACTION.  NEITHER THE STATE NOR THE
FEDERAL GOVERNMENT HAS CONTESTED THIS ASPECT OF THE MASTER'S RULING. 
/4/  INDEED, SEC. 2 OF THE ACT CONTAINS A PROVISO WHICH DECLARES THAT
"THE PROVISIONS OF THIS ACT SHALL NOT AFFECT (1) ANY VALID EXISTING
RIGHTS OR INTERESTS, IF ANY, OF ANY PERSON, PARTNERSHIP, ASSOCIATION,
CORPORATION, OR OTHER NONGOVERNMENTAL ENTITY, IN OR TO ANY OF THE LANDS
WITHIN AND BELOW SAID MEANDER LINE . . . ."  THIS LANGUAGE SUGGESTS
THAT CONGRESS EXPECTED THAT THE INTERESTS OF THE PRIVATE PARTIES WOULD
NOT BE ADJUDICATED HERE. 

/5/  THUS, WE NEED NOT DETERMINE THE CONDITIONS UNDER WHICH RULE
19(A) MAY PROPERLY BE WAIVED BY THE PARTY IT PROTECTS IN AN ORDINARY
LITIGATION IN THE DISTRICT COURTS. 

/6/  BEFORE THE UNITED STATES AND UTAH ENTERED THEIR STIPULATION,
THE GREAT SALT LAKE MINERALS & CHEMICAL CORP. SOUGHT TO INTERVENE IN
THIS ACTION.  WHILE THE MASTER DENIED THIS MOTION AS WELL AS MORTON'S,
M&C HAS CHOSEN TO ACQUIESCE IN THE MASTER'S DECISION SO LON AS THE
STIPULATION IS APPROVED.  THUS, NO FURTHER ACTION ON THIS MOTION IS
REQUIRED IN THE LIGHT OF OUR DISPOSITION HERE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

VERNON B. ROMNEY, ATTORNEY GENERAL OF UTAH, ROBERT B. HANSEN, DEPUTY
ATTORNEY GENERAL, AND DALLIN W. JENSEN, ASSISTANT ATTORNEY GENERAL, FOR
PLAINTIFF. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MARTZ, LOUIS
F. CLAIBORNE, DAVID R. WARNER, AND MARTIN GREEN FOR THE UNITED STATES. 

L. M. MCBRIDE, FRANK A. WOLLAEGER, MYER FELDMAN, AND MARTIN JACOBS
FOR MORTON INTERNATIONAL, INC.

GEORGE E. BOSS, RAYMOND T. SENIOR, CLARON C. SPENCER, AND ROBERT D.
LARSEN FOR GREAT SALT LAKE MINERALS & CHEMICALS CORP.
..END :








BOKULICH V. JURY COMMISSION, 394 U.S. 97 


       BOKULICH ET AL. V. JURY COMMISSION OF GREENE COUNTY ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ALABAMA. 

     NO. 1255, MIS.  DECIDED MARCH 3, 1969. 


APPELLANTS HAD BEEN ARRESTED ON CHARGES OF GRAND LARCENY.  THEY
SOUGHT AN INJUNCTION TO PREVENT THE GRAND JURY FROM CONSIDERING THE
LARCENY CHARGES ON THE GROUND THAT NEGROES HAD BEEN SYSTEMATICALLY
EXCLUDED FROM THE GRAND JURY.  THE DISTRICT COURT FOUND THAT THE GRAND
JURY WAS ILLEGALLY CONSTITUTED BUT REFUSED TO PREVENT IT FROM
CONSIDERING THE CRIMINAL CHARGES.  HELD:  THE DISTRICT COURT DID NOT
ABUSE ITS DISCRETION IN REFUSING TO ENJOIN THE GRAND JURY PROCEEDINGS. 

298 F.SUPP.  181, AFFIRMED. 

PER CURIAM. 

THE MOTION OF THE APPELLANTS FOR LEAVE TO PROCEED IN FORMA PAUPERIS
IS GRANTED. 

APPELLANTS, CIVIL RIGHTS WORKERS, WERE ARRESTED ON CHARGES OF GRAND
LARCENY.  TOGETHER WITH OTHER PERSONS WHO ARE NOT PARTIES TO THIS
APPEAL, THE APPELLANTS WERE PLAINTIFFS IN THIS SUIT BEFORE A THREE
JUDGE COURT.  THE COMPLAINT CHARGED THAT NEGROES HAD BEEN
SYSTEMATICALLY EXCLUDED FROM THE GRAND AND PETIT JURIES IN GREENE
COUNTY AND THAT THE ALL-WHITE COUNTY JURY COMMISSION WAS
UNCONSTITUTIONALLY CONSTITUTED.  IT SOUGHT DECLARATORY AND INJUNCTIVE
RELIEF AGAINST CONTINUED DISCRIMINATION IN THE SELECTION OF JURIES,
AGAINST STATUTES THAT ALLEGEDLY AUTHORIZED THE DISCRIMINATION, AND
AGAINST THE STATE GOVERNOR'S PRACTICE OF SELECTING ONLY WHITE JURY
COMMISSIONERS FOR GREENE COUNTY.  THE APPELLANTS SOUGHT ALSO AN
INJUNCTION TO PREVENT THE GRAND JURY OF GREENE COUNTY FROM CONSIDERING
THE CRIMINAL CHARGES AGAINST THEM. 

THE DISTRICT COURT HELD THAT NEGROES HAD BEEN SYSTEMATICALLY AND
PURPOSELY EXCLUDED FROM THE JURY ROLLS OF GREENE COUNTY, ALABAMA, AND
THAT THIS DISCRIMINATORY EXCLUSION VIOLATED THE APPELLANTS' RIGHTS TO
EQUAL PROTECTION AND DUE PROCESS.  IT ISSUED AN INJUNCTION AGAINST
DISCRIMINATORY EXCLUSION OF NEGROES FROM JURY SERVICE IN GREEN COUNTY,
AND IT ORDERED THE APPELLEES TO TAKE PROMPT ACTION TO COMPILE A JURY
LIST ON A NONDISCRIMINATORY BASIS.  THE COURT REFUSED, HOWEVER, TO
PREVENT THE GRAND JURY FROM CONSIDERING THE CRIMINAL CHARGES AGAINST
THE APPELLANTS.  THIS APPEAL PRESENTS ONLY THE ISSUE WHETHER THE
DISTRICT COURT ERRED IN SO RULING.  /1/

WE HOLD THAT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION.  THE
DISTRICT COURT WAS WARRANTED IN ASSUMING THAT THE CONSTITUTIONAL
DEFECTS OF WHICH THE APPELLANTS COMPLAINED MIGHT BE PROMPTLY REMEDIED
BY COMPLIANCE WITH ITS ORDER THAT JURIES BE RECONSTITUTED ON A
NONDISCRIMINATORY BASIS.  IF THEY WERE NOT, AND IF THE APPELLANTS WERE
IN FACT INDICTED, THE APPELLANTS COULD RAISE ANY OBJECTION TO THE
COMPOSITION OF THE JURY AS A DEFENSE TO THEIR PROSECUTIONS.  IN THESE
CIRCUMSTANCES THE COURT COULD PROPERLY CONCLUDE THAT THIS WAS NOT ONE
OF "THOSE EXCEPTIONAL CASES WHICH CALL FOR THE INTERPOSITION OF A COURT
OF EQUITY TO PREVENT IRREPARABLE INJURY WHICH IS CLEAR AND IMMINENT." 
DOUGLAS V. JEANNETTE, 319 U.S. 157, 163 (1943).  /2/  ACCORDINGLY, WE
AFFIRM THAT PART OF THE DISTRICT COURT'S JUDGMENT THAT DENIED AN
INJUNCTION PREVENTING THE GREENE COUNTY GRAND JURY FROM CONSIDERING
CRIMINAL CHARGES AGAINST THE APPELLANTS. 

/1/  IN NO. 908 THE PLAINTIFFS INTHE COURT BELOW OTHER THAN THE
APPELLANTS IN THE PRESENT CASE APPEAL FROM THE DISTRICT COURT'S
DETERMINATIONS THAT THE CHALLENGED ALABAMA STATUTES ARE NOT
UNCONSTITUTIONAL AND THAT THE GREENE COUNTY JURY COMMISSION WAS NOT
PROVED TO HAVE BEEN ILLEGALLY CONSTITUTED.  WE HAVE TODAY NOTED
PROBABLE JURISDICTION OF THAT APPEAL.  393 U.S. 1115. 

/2/  WE DO NOT REACH THE ISSUE WHETHER 28 U.S.C. 2283 WOULD BAR THE
INJUNCTION SOUGHT EVEN IF IRREPARABLE INJURY HAD BEEN SHOWN.  CF.
DOMBROWSKI V. PFISTER, 380 U.S. 479, 484, N. 2 (1965). 

MORTON STAVIS, ARTHUR KINOY, WILLIAM M. KUNSTLER, DONALD A. JELINEK,
AND ALVIN BRONSTEIN FOR APPELLANTS. 

MACDONALD GALLION, ATTORNEY GENERAL OF ALABAMA, AND ROBERT P.
BRADLEY, ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :














BLACK UNITY LEAGUE V. MILLER, 394 U.S. 100 


       BLACK UNITY LEAGUE OF KENTUCKY ET AL. V. MILLER ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF KENTUCKY. 

 NO. 892.  DECIDED MARCH 3, 1969. 


DISMISSAL OF APPELLANT ORGANIZATIONS' SUIT FOR INJUNCTIVE AND
DECLARATORY RELIEF AGAINST THREATENED INVESTIGATIONS BY KENTUCKY UN
AMERICAN ACTIVITIES COMMITTEE UPHELD AS APPELLANTS FAILED TO RESPOND TO
MOTION TO DISMISS AS REQUIRED BY LOCAL COURT RULES AND TRIAL COURT
COULD THUS TAKE CONCLUSORY ALLEGATIONS OF IRREPARABLE INJURY AS
INSUBSTANTIAL AND NOT JUSTIFYING FEDERAL INTERVENTION. 

AFFIRMED. 

PER CURIAM. 

APPELLANT ORGANIZATIONS BROUGHT THIS SUIT FOR INJUNCTIVE AND
DECLARATORY RELIEF AGAINST INVESTIGATIONS WHICH APPELLEES, MEMBERS OF
THE KENTUCKY UN-AMERICAN ACTIVITIES COMMITTEE, WERE ALLEGEDLY
THREATENING TO CONDUCT.  THEY CONTENDED THAT THE INVESTIGATIONS AND
ACCOMPANYING CONTEMPT PROSECUTIONS WOULD VIOLATE VARIOUS RIGHTS,
PRIMARILY THOSE UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  THEY DID
NOT ALLEGE THAT ANY OF THEIR OFFICERS OR MEMBERS HAD BEEN CALLED AS
WITNESSES, OR THAT ANY SUBPOENAS HAD BEEN ISSUED, OR THAT ANY CRIMINAL
PROSECUTIONS HAD BEEN BEGUN.  THE ALLEGATIONS OF HARASSMENT WERE
ENTIRELY CONCLUSORY.  APPELLEES MOVED TO DISMISS, AND APPELLANTS FAILED
TO RESPOND, AS WS REQUIRED BY LOCAL COURT RULES.  THESE RULES ALSO
STATED THAT "(FAILURE TO RESPOND MAY BE GOOD GROUNDS FOR SUSTAINING THE
MOTION."  D.C.W.D. KY. RULE 5(A).  WE HOLD THAT IN THIS PROCEDURAL
CONTEXT THE TRIAL COURT COULD TAKE APPELLANTS' CONCLUSORY ALLEGATIONS
AS INSUBSTANTIAL AND COULD DISMISS THE COMPLAINT FOR FAILURE TO ALLEGE
SUFFICIENT IRREPARABLE INJURY TO JUSTIFY FEDERAL INTERVENTION AT THIS
EARLY STAGE.  FOR THIS REASON, THE MOTION TO AFFIRM IS GRANTED AND THE
JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS DISSENTS. 

WILLIAM M. KUNSTLER, ARTHUR KINOY, ROBERT ALLEN SEDLER, AND MORTON
STAVIS FOR APPELLANTS. 

W. SCOTT MILLER, JR., PRO SE, AND FOR OTHER APPELLEES. 
..END :




HOLDEN V. ARNEBERGH, 394 U.S. 102 


       HOLDEN ET AL. V. ARNEBERGH, CITY ATTORNEY OF LOS ANGELES, ET

           AL.

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 945.  DECIDED MARCH 3, 1969. 


265 CAL.APP.2D 87, 71 CAL.RPTR.  401, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED, IT
APPEARING THAT THE JUDGMENT BELOW RESTS UPON AN ADEQUATE STATE GROUND. 

BURTON MARKS FOR APPELLANTS. 

ROGER ARNEBERGH, PRO SE, AND ROBERT B. BURNS FOR APPELLEES. 
..END :






DUNBAR-STANLEY STUDIOS V. ALABAMA, 393 U.S. 537 


       DUNBAR-STANLEY STUDIOS, INC. V. ALABAMA. 

 APPEAL FROM THE SUPREME COURT OF ALABAMA. 

        NO. 376.  ARGUED JANUARY 16, 1969.-- DECIDED FEBRUARY 25,

     1969. 


APPELLANT, A PHOTOGRAPHY FIRM INCORPORATED AND HAVING ITS PRINCIPAL
OFFICE AND ITS PROCESSING PLANT IN NORTH CAROLINA, WAS UNDER CONTRACT
WITH THE J. C. PENNEY CO. TO SENT APPELLANT'S PHOTOGRAPHERS
(NONRESIDENTS OF ALABAMA) TO THE PENNEY STORES IN EIGHT CITIES IN
ALABAMA FOR A FEW DAYS SEVERAL TIMES A YEAR TO PHOTOGRAPH CHILDREN. 
EACH STORE ADVERTISED THE SERVICE, TOOK ORDERS, PROVIDED STUDIO SPACE,
ARRANGED FOR SITTINGS, COLLECTED THE MONEY, AND DELIVERED THE
PICTURES.  APPELLANT, WHICH RECEIVED A PERCENTAGE OF THE RECEIPTS, TOOK
THE PICTURES, PROCESSED THEM IN NORTH CAROLINA, AND MAILED THE
PHOTOGRAPHS TO THE PENNEY STORES.  ALABAMA IMPOSES A LICENSE TAX ON A
PHOTOGRAPHER FOR EACH COUNTY, TOWN, OR CITY WHERE HE OPERATES.  IN THE
CASE OF A PHOTOGRAPHER OR A GALLERY "AT A FIXED LOCATION" THE MAXIMUM
TAX IS $25 PER YEAR IN THE LARGEST CITIES.  THE TAX IS $5 PER WEEK FOR
A TRANSIENT PHOTOGRAPHER.  APPELLANT SOUGHT DECLARATORY RELIEF IN THE
ALABAMA COURTS, ALLEGING THAT THE COMMERCE CLAUSE OF THE CONSTITUTION
BARRED IMPOSITION OF THE TRANSIENT PHOTOGRAPHER'S TAX ON ITS
ACTIVITIES.  THE LOWER COURT UPHELD THE TAX AND THE ALABAMA SUPREME
COURT AFFIRMED.  HELD: 

1.  APPELLANT WAS ENGAGED IN THE ESSENTIALLY LOCAL ACTIVITY OF
TAKING PICTURES.  APPELLANT COULD CONSTITUTIONALLY BE MADE SUBJECT TO
LOCAL TAXATION FOR ENGAGING IN THAT LOCAL ACTIVITY.  PP. 539-541. 

2.  ALABAMA'S TAX DOES NOT DISCRIMINATE AGAINST INTERSTATE COMMERCE,
SINCE IT IS LEVIED EQUALLY ON INTERSTATE AND INTRASTATE TRANSIENT
PHOTOGRAPHERS AND ON THE RECORD HERE THE TAX ON OUT-OF-STATE
PHOTOGRAPHERS IS NOT SO DISPROPORTIONATE TO THE TAX ON FIXED-LOCATION
PHOTOGRAPHERS AS TO COME WITHIN THE CONDEMNATION OF THE CONSTITUTION. 
P. 542. 

282 ALA. 221, 210 SO.2D 696, AFFIRMED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

ALABAMA LEVIES A TAX UPON PHOTOGRAPH GALLERIES AND PERSONS ENGAGED IN
PHOTOGRAPHY.  IF THE BUSINESS IS CONDUCTED "AT A FIXED LOCATION,"  THE
TAX IN THE LARGE CITIES /1/  IS $25 A YEAR FOR EACH SUCH LOCATION.  FOR
EACH "TRANSIENT OR TRAVELING PHOTOGRAPHER," THE TAX IS $5 PER WEEK FOR
EACH COUNTY, TOWN, OR CITY IN WHICH HE PLIES HIS TRADE.  /2/ 

THIS CASE INVOLVES STATE ASSESSMENTS OF THE TRANSIENT PHOTOGRAPHERS
TAX AGAINST APPELLANT AND ITS PREDECESSOR PARTNERSHIP.  /3/  APPELLANT
SOUGHT A DECLARATION FROM THE STATE COURTS THAT THE ASSESSMENT WAS
IMPROPER, CLAIMING THAT THE TAX WAS LEVIED UPON INTERSTATE COMMERCE, IN
CONFLICT WITH THE COMMERCE CLAUSE OF THE CONSTITUTION.  THE SUPREME
COURT OF ALABAMA SUSTAINED THE TAX.  282 ALA. 221, 210 SO.2D 696
(1968).  WE AFFIRM. 

APPELLANT IS A PHOTOGRAPHY FIRM SPECIALIZING IN SELLING PHOTOGRAPHS
OF CHILDREN.  IT IS ORGANIZED AS A NORTH CAROLINA CORPORATION AND ITS
PRINCIPAL OFFICE AND PROCESSING PLANT ARE IN CHARLOTTE, NORTH
CAROLINA.  IT HAS NO OFFICE OR PLACE OF BUSINESS IN ALABAMA, NOR DOES
IT MAINTAIN AN INVENTORY THERE.  ITS ACTIVITIES IN THAT STATE STEM FROM
A CONTRACT BETWEEN APPELLANT AND J. C. PENNEY CO.  PENNEY OPERATES
DEPARTMENT STORES IN EIGHT CITIES IN ALABAMA, AS WELL AS ELSEWHERE IN
THE NATION.  BY THE TERMS OF THE CONTRACTAS SUMMARIZED IN THE
COMPLAINT, APPELLANT'S PHOTOGRAPHERS, NONRESIDENTS OF ALABAMA, "WERE AT
THE DISPOSAL OF THE LOCAL PENNEY STORES.  THE LOCAL STORE MANAGER
REQUESTED APPELLANT TO SEND REPRESENTATIVES FOR PICTURE TAKING ON
SPECIFIED DATES."  DURING THE PERIOD FOR WHICH THE TAX HAS BEEN
ASSESSED, APPELLANT'S PHOTOGRAPHERS WERE SENT TO J. C. PENNEY STORES IN
EIGHT ALABAMA CITIES.  ACCORDING TO THE COMPLAINT, EACH VISIT LASTED
TWO TO FIVE DAYS, AND EACH CITY WAS VISITED FROM ONE TO FIVE TIMES A
YEAR. 

THE PENNEY STORES ADVERTISED THE PHOTOGRAHPIC SERVICE, INVITING
PARENTS TO BRING THEIR CHILDREN TO BE PHOTOGRAPHED DURING THE VISIT BY
APPELLANT'S PHOTOGRAPHER.  EACH STORE TOOK THE ORDER FOR THE
PHOTOGRAPHS, ARRANGED THE TIME FOR THE SITTING, PROVIDED A PLACE IN THE
STORE FOR THE TEMPORARY STUDIO, COLLECTED THE MONEY, AND DELIVERED THE
PICTURES TO THE CUSTOMER WHEN COMPLETED.  APPELLANT WAS PAID A
PERCENTAGE OF THE RECEIPTS FROM THE PENNEY STORES. 

APPELLANT'S ACTIVITIES WERE LIMITED TO TAKING THE PICTURES,
TRANSMITTING THE EXPOSED FILM TO ITS OFFICE IN NORTH CAROLINA WHERE IT
WAS DEVELOPED, PRINTED, AND FINSIHED, AND MAILING THE FINISHED PRINTS
TO THE PENNEY STORES IN ALABAMA. 

IT IS CLEAR FROM THE TAXING STATUTE ITSELF AND FROM THE DECISIONS OF
THE SUPREME COURT OF ALABAMA THAT THE TAX IS LAID UPON THE DISTINCTIVE
BUSINESS OF THE PHOTOGRAPHER, NOT UPON THE SOLICITING OF ORDERS OR THE
PROCESSING OF FILM.  GRAVES V. STATE, 258 ALA. 359, 62 SO.2D 446
(1952); HADEN V. OLAN MILLS, INC., 273 ALA. 129, 135 SO.2D 388 (1961). 
APPELLANT ARGUES THAT SINCE EACH OF ITS PHOTOGRAPHERS CAME INTO ALABAMA
FROM NORTH CAROLINA TO PLY HIS TRADE, BRINGING HIS EQUIPMENT WITH HIM,
AND SINCE HE MERELY EXPOSED HIS FILM IN ALABAMA, THE DEVELOPING,
PRINTING, AND FINISHING OPERATION BEING CONDUCTED IN NORTH CAROLINA,
HIS ACTIVITIES IN ALABAMA ARE AN INSEPARABLE PART OF INTERSTATE
COMMERCE AND CANNOT CONSTITUTIONALLY BE SUBJECT TO THE ALABAMA LICENSE
TAX.  APPELLANT RELIES UPON FAMILIAR CASES DECIDED BY THIS COURT
HOLDING THAT THE COMMERCE CLAUSE PRECLUDES A STATE-IMPOSED FLAT SUM
PRIVILEGE TAX ON AN INTERSTATE ENTERPRISE WHOSE ONLY CONTACT WITH THE
TAXING STATE IS THE SOLICITATION OF ORDERS AND THE SUBSEQUENT DELIVERY
OF MERCHANDISE WITHIN THE TAXING STATE.  WEST POINT WHOLESALE GROCERY
CO. V. OPELIKA, 354 U.S. 390 (1957); MEMPHIS STEAM LAUNDRY CLEANER,
INC. V. STONE, 342 U.S. 389 (1952); NIPPERT V. CITY OF RICHMOND, 327
U.S. 416 (1946).  SUCH TAXES HAVE A SUBSTANTIAL INHIBITORY EFFECT ON
COMMERCE WHICH IS ESSENTIALLY INTERSTATE. 

BUT THESE CASES ARE NOT APPLICABLE TO THE PRESENT FACTS.  IN
DETERMINING WHETHER A STATE TAX IMPOSES AN IMPERMISSIBLE BURDEN ON
INTERSTATE COMMERCE, THE ISSUE IS WHETHER THE LOCAL ACTIVITY WHICH IS
MADE THE NOMINAL SUBJECT OF THE TAX IS "SUCH AN INTEGRAL PART OF THE
INTERSTATE PROCESS, THE FLOW OF COMMERCE, THAT IT CANNOT REALISTICALLY
BE SEPARATED FROM IT."  MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT,
347 U.S. 157, 166 (1954).  IF, FOR EXAMPLE, A LICENSE TAX WERE IMPOSED
ON THE ACTS OF ENGAGING IN SOLICITING ORDERS OR MAKING DELIVERIES,
CONFLICT WITH THE COMMERCE CLAUSE WOULD BE EVIDENT BECAUSE THESE ARE
MINIMAL ACTIVITIES WITHIN A STATE WITHOUT WHICH THERE CAN BE NO
INTERSTATE COMMERCE.  BUT IN THE PRESENT CASE, THE "TAXABLE EVENT," AS
DEFINED BY THE STATE'S COURTS, IS "PURSUING) THE ART OF PHOTOGRAPHY IN
ALABAMA."  GRAVES V. STATE, 258 ALA. 359, 362, 62 SO.2D 446, 448.  WHEN
APPELLANT'S PHOTOGRAPHERS SET UP THEIR EQUIPMENT IN THE LOCAL STORES,
POSED THE CHILDREN BROUGHT TO THEM TO BE PHOTOGRAPHED, AND OPERATED
THEIR CAMERAS, THEY WERE ENGAGED IN AN ESSENTIALLY LOCAL ACTIVITY:  THE
BUSINESS OF PROVIDING PHOTOGRAPHERS' SERVICES.  THE ESSENTIALLY LOCAL
CHARACTER OF THE ACTIVITY IS EMPHASIZED BY THE INTIMATE CONNECTION
BETWEEN APPELLANT'S PHOTOGRAPHERS AND THE LOCAL STORES IN WHICH THEY
SET UP THEIR TEMPORARY STUDIOS.  ENGAGING IN SUCH LOCAL BUSINESS MAY
CONSTITUTIONALLY BE MADE SUBJECT TO LOCAL TAXATION.  E.G., ALASKA V.
ARCTIC MAID, 366 U.S. 199 (1961). 

IT COULD HARDLY BE SUGGESTED THAT IF J. C. PENNEY HAD SET UP ITS OWN
RESIDENT OR TRANSIENT PHOTOGRAPHY STUDIOS, USING ITS OWN EMPLOYEES,
SUCH A PHOTOGRAPHY BUSINESS WOULD HAVE BEEN EXEMPT FROM STATE LICENSING
MERELY BECAUSE IT CHOSE TO SEND THE EXPOSED FILM OUT OF THE STATE FOR
PROCESSING.  THE EXTRACTION OF A NATURAL RESOURCE WITHIN A STATE IS NOT
IMMUNIZED FROM STATE TAXATION MERELY BECAUSE, ONCE EXTRACTED, THE
PRODUCT WILL IMMEDIATELY BE SHIPPED OUT OF THE STATE FOR PROCESSING AND
SALE TO CONSUMERS.  ALASKA V. ARCTIC MAID, SUPRA, AT 203-204; OLIVER
IRON MINING CO. V. LORD, 262 U.S. 172, 177-179 (1923).  CF. TOOMER V.
WITSELL, 334 U.S. 385, 394-395 (1948).  A FORTIORI, THE FACT THAT AN
INTERMEDIATE PROCESSING STAGE TAKES PLACE OUTSIDE THE STATE BEFORE THE
PICTURES ARE RETURNED TO THE STATE FOR FINAL DELIVERY DOES NOT MAKE THE
TAKING OF THE PICTURES-- THE ACTIVITY ON WHICH THE TAX WAS IMPOSED-- SO
INSEPARABLE A PART OF THE FLOW OF INTERSTATE COMMERCE AS TO BE IMMUNE
FROM STATE LICENSE TAXATION.  THE MERE SUBSTITUTION FOR J. C. PENNEY'S
OWN EMPLOYEES OF A TRANSIENT PHOTOGRAPHER WHO COMES INTO ALABAMA FROM
NORTH CAROLINA DOES NOT CONVERT THE ESSENTIALLY LOCAL ACTIVITY OF
PHOTOGRAPHING THE SUBJECTS INTO AN INTERSTATE ACTIVITY IMMUNE FROM THE
STATE PRIVILEGE TAX.  CF. CASKEY BAKING CO. V. VIRGINIA, 313 U.S. 117
(1941); WAGNER V. CITY OF COVINGTON, 251 U.S. 95 (1919). 

NOR IS THE TAX INVLAID AS A DISCRIMINATION AGAINST INTERSTATE
COMMERCE.  ALABAMA'S TAX IS LEVIED EQUALLY UPON ALL TRANSIENT OR
TRAVELING PHOTOGRAPHERS WHETHER THEIR TRAVEL IS INTERSTATE OR ENTIRELY
WITHIN THE STATE.  ON THE RECORD BEFORE US, THERE IS NO BASIS FOR
CONCLUDING THAT THE $5 PER WEEK TAX ON TRANSIENT OUT-OF-STATE
PHOTOGRAPHERS IS SO DISPROPORTIONATE TO THE TAX IMPOSED ON
PHOTOGRAPHERS WITH A FIXED LOCATION /4/  AS TO BEAR UNFAIRLY ON THE
FORMER.  CF. " WEST POINT WHOLESALE GROCERY CO. V. OPELIKA, 254 U.S.
390 (1957); BEST & CO. V. MAXWELL, 311 U.S. 454 (1940).  IN NONE OF THE
CITIES FOR WHICH APPELLANT'S COMPLAINT GIVES THE DETAILS OF ITS
ACTIVITIES WOULD THE TRANSIENT TAX IMPOSED ON IT HAVE EXCEEDED THAT
WHICH A FIXED-LOCATION PHOTOGRAPHER WOULD HAVE HAD TO PAY TO OPERATE IN
THE CITY.  /5/  FOR EXAMPLE, IN 1965, FIVE VISITS ARE LISTED TO MOBILE,
RESULTING IN AN ASSESSED TAX OF $25.  THIS IS EQUAL TO THE FLAT RATE
TAX WHICH A PHOTOGRAPHER PERMANENTLY LOCATED IN THE CITY WOULD HAVE HAD
TO PAY.  SINCE, ACCORDING TO THE COMPLAINT, THE MAXIMUM TAX ON
APPELLANT IN ANY YEAR FOR ANY CITY WOULD BE $25, /6/ THE BURDEN COULD
HARDLY BE PROHIBITIVE. 

              AFFIRMED. 

/1/  FOR SMALLER TOWNS, THE RATE IS STEPPED DOWN.  THE LOWEST RATE
IS $3 A YEAR FOR LOCALITIES WITH FEWER THAN 1,000 INHABITANTS. 

/2/  TITLE 51, CODE OF ALABAMA SEC. 569, PRIOR TO ITS AMENDMENT IN
1967, READ AS FOLLOWS: 

"PHOTOGRAPHERS AND PHOTOGRAPH GALLERIES.  EVERY PHOTOGRAPH GALLERY,
OR PERSON ENGAGED IN PHOTOGRAPHY, WHEN THE BUSINESS IS CONDUCTED AT A
FIXED LOCATION:  IN CITIES AND TOWNS TO SEVENTY-FIVE THOUSAND
INHABITANTS AND OVER, TWENTY-FIVE DOLLARS; IN CITIES AND TOWNS OF LESS
THAN SEVENTY-FIVE THOUSAND AND NOT LESS THAN FORTY THOUSAND
INHABITANTS, FIFTEEN DOLLARS; IN CITIES AND TOWNS OF LESS THAN FORTY
THOUSAND AND NOT LESS THAN SEVEN THOUSAND AND OVER ONE THOUSAND
INHABITANTS, FIVE DOLLARS; IN ALL OTHER PLACES WHETHER INCORPORATED OR
NOT, THREE DOLLARS.  THE PAYMENT OF THE LICENSE REQUIRED IN THIS
COUNTY WHERE PAID.  FOR EACH TRANSIENT OR TRAVELING PHOTOGRAPHER, FIVE
DOLLARS PER WEEK." 

/3/  NO POINT HAS BEEN MADE AS TO THE IDENTITY OF THE TAXPAYER OR ITS
LIABILITY FOR THE TAX IF IT MAY BE CONSTITUTIONALLY LEVIED. 

/4/  SEE N. 1, SUPRA. 

/5/  APPELLANT ASSERTS IN ITS BRIEF-- BUT NOT IN THE COMPLAINT--
THAT THE TAXES ASSESSED FOR ITS OPERATIONS IN BIRMINGHAM WERE ALMOST
TWICE WHAT A FIXED-LOCATION PHOTOGRAPHER WOULD HAVE HAD TO PAY FOR THE
SAME PERIOD.  EVEN ASSUMING THAT TO BE TRUE, WE ARE NOT PREPARED TO SAY
THAT THIS RELATIVE BURDEN IS IMPROPER, GIVEN THE DIFFERENCES BETWEEN
THE TWO WAYS OF CARRYING ON THE BUSINESS. 

/6/  ALLEGEDLY, THERE WERE UP TO FIVE VISITS PER YEAR TO EACH CITY,
EACH VISIT EXTENDING FROM TWO TO FIVE DAYS.  THE TAX RATE FOR A
TRANSIENT PHOTOGRAPHER WAS $5 FOR EACH WEEK OF OPERATION IN A
LOCALITY. 

MR. JUSTICE WHITE, CONCURRING. 

ALABAMA TAXES ITS TRANSIENT PHOTOGRAPHERS ON A DIFFERENT, AND OFTEN
MORE BURDENSOME, BASIS THAN THOSE NOT IN THAT CATEGORY.  IF FIRMS
OPERATING PRECISELY AS APPELLANT DOES, AND MAILING THEIR FILM TO A
CENTRAL POINT WITHIN THE STATE FOR DEVELOPMENT, ARE TAXED AS TRANSIENT
PHOTOGRAPHERS THEN THERE IS NO UNCONSTITUTIONAL DISCRIMINATION AGAINST
INTERSTATE COMMERCE.  BUT IF APPELLANT IS TAXED AS A TRANSIENT
PHOTOGRAPHER BECAUSE ITS FILMS ARE SENT FOR DEVELOPMENT ACROSS A STATE
LINE, THEN THERE IS DISCRIMINATION AGAINST INTERSTATE COMMERCE. 
ALTHOUGH APPELLANT CONTENDS THAT IT IS BECAUSE OF THE INTERSTATE
SHIPMENT OF FILMS THAT THE TRANSIENT TAX WAS APPLIED, AND ALTHOUGH THE
DECISION IN HADEN V. OLAN MILLS, INC., 273 ALA. 129, 135 SO.2D 388
(1961), ARGUABLY SUPPORTS THAT VIEW, I DO NOT THINK THAT A SUFFICIENT
SHOWING HAS BEEN MADE IN THIS RECORD THAT ALABAMA HAS SO APPLIED ITS
TAX.  SINCE THE BURDEN OF PROOF IS ON THE APPELLANT HERE, I JOIN THE
COURT DESPITE THE UNCERTAINTY OF THE RECORD ON THIS SCORE. 

J. EDWARD THORNTON ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WAS GLEN B. HARDYMON. 

WILLIAM H. BURTON, ASSISTANT ATTORNEY GENERAL OF ALABAMA, ARGUED THE
CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WERE MACDONALD GALLION,
ATTORNEY GENERAL, AND WILLARD W. LIVINGSTON, ASSISTANT ATTORNEY
GENERAL. 
..END :














JOHNSON V. AVERY, 393 U.S. 483 


       JOHNSON V. AVERY, COMMISSIONER OF CORRECTION, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 40.  ARGUED NOVEMBER 14, 1968.-- DECIDED FEBRUARY 24,

1969. 


PETITIONER, A TENNESSEE PRISONER, WAS DISCIPLINED FOR VIOLATING A
PRISON REGULATION WHICH PROHIBITED INMATES FROM ASSISTING OTHER
PRISONERS IN PREPARING WRITS.  THE DISTRICT COURT HELD THE REGULATION
VOID BECAUSE IT HAD THE EFFECT OF BARRING ILLITERATE PRISONERS FROM
ACCESS TO FEDERAL HABEAS CORPUS AND CONFLICTED WITH 28 U.S.C. 2242. 
THE COURT OF APPEALS REVERSED, FINDING THAT THE STATE'S INTEREST IN
PRESERVING PRISON DISCIPLINE AND LIMITING THE PRACTICE OF LAW TO
ATTORNEYS JUSTIFIED ANY BURDEN THE REGULATION MIGHT PLACE ON ACCESS TO
FEDERAL HABEAS CORPUS.  HELD:  IN THE ABSENCE OF SOME PROVISION BY THE
STATE OF TENNESSEE FOR A REASONABLE ALTERNATIVE TO ASSIST ILLITERATE OR
POORLY EDUCATED INMATES IN PREPARING PETITIONS FOR POST-CONVICTION
RELIEF, THE STATE MAY NOT VALIDLY ENFORCE A REGULATION WHICH ABSOLUTELY
BARS INMATES FROM FURNISHING SUCH ASSISTANCE TO OTHER PRISONERS.  PP.
485-490. 

382 F.2D 353, REVERSED AND REMANDED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

      I. 

PETITIONER IS SERVING A LIFE SENTENCE IN THE TENNESSEE STATE
PENITENTIARY.  IN FEBRUARY 1965 HE WAS TRANSFERRED TO THE MAXIMUM
SECURITY BUILDING IN THE PRISON FOR VIOLATION OF A PRISON REGULATION
WHICH PROVIDES: 

     "NO INMATE WILL ADVISE, ASSIST OR OTHERWISE CONTRACT TO AID

  ANOTHER, EITHER WITH OR WITHOUT A FEE, TO PREPARE WRITS OR OTHER

LEGAL MATTERS.  IT IS NOT INTENDED THAT AN INNOCENT MAN BE

 PUNISHED.  WHEN A MAN BELIEVES HE IS UNLAWFULLY HELD OR ILLEGALLY

  CONVICTED, HE SHOULD PREPARE A BRIEF OR STATE HIS COMPLAINT IN

  LETTER FORM AND ADDRESS IT TO HIS LAWYER OR A JUDGE.  A FORMAL

  WRIT IS NOT NECESSARY TO RECEIVE A HEARING.  FALSE CHARGES OR

  UNTRUE COMPLAINTS MAY BE PUNISHED.  INMATES ARE FORBIDDEN TO SET

  THEMSELVES UP AS PRACTITIONERS FOR THE PURPOSE OF PROMOTING A

  BUSINESS OF WRITING WRITS." 

IN JULY 1965 PETITIONER FILED IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE A "MOTION FOR LAW BOOKS AND A
TYPEWRITER," IN WHICH HE SOUGHT RELIEF FROM HIS CONFINEMENT IN THE
MAXIMUM SECURITY BUILDING.  THE DISTRICT COURT TREATED THIS MOTION AS A
PETITION FOR A WRIT OF HABEAS CORPUS AND, AFTER A HEARING, ORDERED HIM
RELEASED FROM DISCIPLINARY CONFINEMENT AND RESTORED TO THE STATUS OF AN
ORDINARY PRISONER.  THE DISTRICT COURT HELD THAT THE REGULATION WAS
VOID BECAUSE IT IN EFFECT BARRED ILLITERATE PRISONERS FROM ACCESS TO
FEDERAL HABEAS CORPUS AND CONFLICTED WITH 28 U.S.C. 2242.  /1/  252
F.SUPP.  783. 

BY THE TIME THE DISTRICT COURT ORDER WAS ENTERED, PETITIONER HAD
BEEN TRANSFERRED FROM THE MAXIMUM SECURITY BUILDING, BUT HE HAD BEEN
PUT IN A DISCIPLINARY CELL BLOCK IN WHICH HE WAS ENTITLED TO FEWER
PRIVILEGES THAN WERE GIVEN ORDINARY PRISONERS.  ONLY WHEN HE PROMISED
TO REFRAIN FROM ASSISTANCE TO OTHER INMATES WAS HE RESTORED TO REGULAR
PRISON CONDITIONS AND PRIVILEGES.  AT A SECOND HEARING, HELD IN MARCH
1966, THE DISTRICT COURT EXPLORED THESE ISSUES CONCERNING THE
COMPLIANCE OF THE PRISON OFFICIALS WITH ITS INITIAL ORDER.  AFTER THE
HEARING, IT REAFFIRMED ITS EARLIER ORDER. 

THE STATE APPEALED.  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
REVERSED, CONCLUDING THAT THE REGULATION DID NOT UNLAWFULLY CONFLICT
WITH THE FEDERAL RIGHT OF HABEAS CORPUS.  ACCORDING TO THE SIXTH
CIRCUIT, THE INTEREST OF THE STATE IN PRESERVING PRISON DISCIPLINE AND
IN LIMITING THE PRACTICE OF LAW TO LICENSED ATTORNEYS JUSTIFIED
WHATEVER BURDEN THE REGULATION MIGHT PLACE ON ACCESS TO FEDERAL HABEAS
CORPUS.  382 F.2D 353. 

        II. 

THIS COURT HAS CONSTANTLY EMPHASIZED THE FUNDAMENTAL IMPORTANCE OF
THE WRIT OF HABEAS CORPUS IN OUR CONSTITUTIONAL SCHEME, /2/  AND THE
CONGRESS HAS DEMONSTRATED ITS SOLICITUDE FOR THE VIGOR OF THE GREAT
WRIT.  /3/  THE COURT HAS STEADFASTLY INSISTED THAT "THERE IS NO HIGHER
DUTY THAN TO MAINTAIN IT UNIMPAIRED."  BOWEN V. JOHNSTON, 306 U.S. 19,
26 (1939). 

SINCE THE BASIC PURPOSE OF THE WRIT IS TO ENABLE THOSE UNLAWFULLY
INCARCERATED TO OBTAIN THEIR FREEDOM, IT IS FUNDAMENTAL THAT ACCESS OF
PRISONERS TO THE COURTS FOR THE PURPOSE OF PRESENTING THEIR COMPLAINTS
MAY NOT BE DENIED OR OBSTRUCTED.  FOR EXAMPLE, THE COURT AS HELD THAT A
STATE MAY NOT VALIDLY MAKE THE WRIT AVAILABLE ONLY TO PRISONERS WHO
COULD PAY A $4 FILING FEE.  SMITH V. BENNETT, 365 U.S. 708 (1961).  AND
IT HAS INSISTED THAT, FOR THE INDIGENT AS WELL AS FOR THE AFFLUENT
PRISONER, POST-CONVICTION PROCEEDINGS MUST BE MORE THAN A FORMALITY. 
FOR INSTANCE, THE STATE IS OBLIGATED TO FURNISH PRISONERS NOT OTHERWISE
ABLE TO OBTAIN IT, WITH A TRANSCRIPT OR EQUIVALENT RECORDATION OF PRIOR
HABEAS CORPUS HEARINGS FOR USE IN FURTHER PROCEEDINGS.  LONG V.
DISTRICT COURT, 385 U.S. 192 (1966).  CF. GRIFFIN V. ILLINOIS, 351 U.S.
12 (1956). 

TENNESSEE URGES, HOWEVER, THAT THE CONTESTED REGULATION IN THIS CASE
IS JUSTIFIED AS A PART OF THE STATE'S DISCIPLINARY ADMINISTRATION OF
THE PRISONS.  THERE IS NO DOUBT THAT DISCIPLINE AND ADMINISTRATION OF
STATE DETENTION FACILITIES ARE STATE FUNCTIONS.  THEY ARE SUBJECT TO
FEDERAL AUTHORITY ONLY WHERE PARAMOUNT FEDERAL CONSTITUTIONAL OR
STATUTORY RIGHTS SUPERVENE.  IT IS CLEAR, HOWEVER, THAT IN INSTANCES
WHERE STATE REGULATIONS APPLICABLE TO INMATES OF PRISON FACILITIES
CONFLICT WITH SUCH RIGHTS, THE REGULATIONS MAY BE INVALIDATED. 

FOR EXAMPLE, IN LEE V. WASHINGTON, 390 U.S. 333 (1968), THE PRACTICE
OF RACIAL SEGREGATION OF PRISONERS WAS JUSTIFIED BY THE STATE AS
NECESSARY TO MAINTAIN GOOD ORDER AND DISCIPLINE.  WE HELD, HOWEVER,
THAT THE PRACTICE WAS CONSTITUTIONALLY PROHIBITED, ALTHOUGH WE WERE
CAREFUL TO POINT OUT THAT THE ORDER OF THE DISTRICT COURT, WHICH WE
AFFIRMED, MADE ALLOWANCE FOR "THE NECESSITIES OF PRISON SECURITY AND
DISCIPLINE."  ID., AT 334.  AND IN EX PARTE HULL, 312 U.S. 546 (1941),
THIS COURT INVALIDATED A STATE REGULATION WHICH REQUIRED THAT HABEAS
CORPUS PETITIONS FIRST BE SUBMITTED TO PRISON AUTHORITIES AND THEN
APPROVED BY THE "LEGAL INVESTIGATOR" TO THE PAROLE BOARD AS "PROPERLY
DRAWN" BEFORE BEING TRANSMITTED TO THE COURT.  HERE AGAIN, THE STATE
URGED THAT THE REQUIREMENT WAS NECESSARY TO MAINTAIN PRISON
DISCIPLINE.  BUT THIS COURT HELD THAT THE REGULATION VIOLATED THE
PRINCIPLE THAT "THE STATE AND ITS OFFICERS MAY NOT ABRIDGE OR IMPAIR
PETITIONER'S RIGHT TO APPLY TO A FEDERAL COURT FOR A WRIT OF HABEAS
CORPUS."  312 U.S.,AT 549.  CF. COCHRAN V. KANSAS, 316 U.S. 255, 257
(1942). 

THERE CAN BE NO DOUBT THAT TENNESSEE COULD NOT CONSTITUTIONALLY
ADOPT AND ENFORCE A RULE FORBIDDING ILLITERATE OR POORLY EDUCATED
PRISONERS TO FILE HABEAS CORPUS PETITIONS.  HERE TENNESSEE HAS ADOPTED
A RULE WHICH, IN THE ABSENCE OF ANY OTHER SOURCE OF ASSISTANCE FOR SUCH
PRISONERS, EFFECTIVELY DOES JUST THAT.  THE DISTRICT COURT CONCLUDED
THAT "(FOR ALL PRACTICAL PURPOSES, IF SUCH PRISONERS CANNOT HAVE THE
ASSISTANCE OF A 'JAIL-HOUSE LAWYER,' THEIR POSSIBLY VALID
CONSTITUTIONAL CLAIMS WILL NEVER BE HEARD IN ANY COURT."  252
F.SUPP.,AT 784.  THE RECORD SUPPORTS THIS CONCLUSION. 

JAILS AND PENITENTIARIES INCLUDE AMONG THEIR INMATES A HIGH
PERCENTAGE OF PERSONS WHO ARE TOTALLY OR FUNCTIONALLY ILLITERATE, WHOSE
EDUCATIONAL ATTAINMENTS ARE SLIGHT, AND WHOSE INTELLIGENCE IS LIMITED. 
/4/ THIS APPEARS TO BE EQUALLY TRUE OF TENNESSEE'S PRISON FACILITIES. 
/5/ 

IN MOST FEDERAL COURTS, IT IS THE PRACTICE TO APPOINT COUNSEL IN
POST-CONVICTION PROCEEDINGS ONLY AFTER A PETITION FOR POST-CONVICTION
RELIEF PASSES INITIAL JUDICIAL EVALUATION AND THE COURT HAS DETERMINED
THAT ISSUES ARE PRESENTED CALLING FOR AN EVIDENTIARY HEARING.  E.G.,
TAYLOR V. PEGELOW, 335 F.2D 147 (C.A. 4TH CIR. 1964); UNITED STATES EX
REL. MARSHALL V. WILKINS, 338 F.2D 404 (C.A.2D CIR. 1964).  SEE 28
U.S.C. 1915(D); R. SOKOL, A HANDBOOK OF FEDERAL HABEAS CORPUS 71-73
(1965).  /6/

IT HAS NOT BEEN HELD THAT THERE IS ANY GENERAL OBLIGATION OF THE
COURTS, STATE OR FEDERAL, TO APPOINT COUNSEL FOR PRISONERS WHO
INDICATE, WITHOUT MORE, THAT THEY WISH TO SEEK POST-CONVICTION RELIEF. 
SEE, E.G., BARKER V. OHIO, 330 F.2D 594 (C.A. 6TH CIR. 1964). 
ACCORDINGLY, THE INITIAL BURDEN OF PRESENTING A CLAIM TO POST
CONVICTION RELIEF USUALLY RESTS UPON THE INDIGENT PRISONER HIMSELF WITH
SUCH HELP AS HE CAN OBTAIN WITHIN THE PRISON WALLS OR THE PRISON
SYSTEM.  IN THE CASE OF ALL EXCEPT THOSE WHO ARE ABLE TO HELP
THEMSELVES-- USUALLY A FEW OLD HANDS OR EXCEPTIONALLY GIFTED PRISONERS-
THE PRISONER IS, IN EFFECT, DENIED ACCESS TO THE COURTS UNLESS SUCH
HELP IS AVAILABLE. 

IT IS INDISPUTABLE THAT PRISON "WRIT WRITERS" LIKE PETITIONER ARE
SOMETIMES A MENACE TO PRISON DISCIPLINE AND THAT THEIR PETITIONS ARE
OFTEN SO UNSKILLFUL AS TO BE A BURDEN ON THE COURTS WHICH RECEIVE
THEM.  /7/  BUT, AS THIS COURT HELD IN EX PARTE HULL, SUPRA, IN
DECLARING INVALID A STATE PRISON REGULATION WHICH REQUIRED THAT
PRISONERS' LEGAL PLEADINGS BE SCREENED BY STATE OFFICIALS: 

"THE CONSIDERATIONS THAT PROMPTED (THE REGULATION'S) FORMULATION ARE
NOT WITHOUT MERIT, BUT THE STATE AND ITS OFFICERS MAY NOT ABRIDGE OR
IMPAIR PETITIONER'S RIGHT TO APPLY TO A FEDERAL COURT FOR A WRIT OF
HABEAS CORPUS."  312 U.S.,AT 549. 

TENNESSEE DOES NOT PROVIDE AN AVAILABLE ALTERNATIVE TO THE
ASSISTANCE PROVIDED BY OTHER INMATES.  THE WARDEN OF THE PRISON IN
WHICH PETITIONER WAS CONFINED STATED THAT THE PRISON PROVIDED FREE
NOTARIZATION OF PRISONERS' PETITIONS.  THAT OBVIOUSLY MEETS ONLY A
FORMAL REQUIREMENT.  HE ALSO INDICATED THAT HE SOMETIMES ALLOWED
PRISONERS TO EXAMINE THE LISTING OF ATTORNEYS IN THE NASHVILLE
TELEPHONE DIRECTORY SO THEY COULD SELECT ONE TO WRITE TO IN AN EFFORT
TO INTEREST HIM IN TAKING THE CASE, AND THAT "ON SEVERAL OCCASIONS" HE
HAD CONTACTED THE PUBLIC DEFENDER AT THE REQUEST OF AN INMATE.  THERE
IS NO CONTENTION, HOWEVER, THAT THERE IS ANY REGULAR SYSTEM OF
ASSISTANCE BY PUBLIC DEFENDERS.  IN ITS BRIEF THE STATE CONTENDS THAT
"(THERE IS ABSOLUTELY NO REASON TO BELIEVE THAT PRISON OFFICIALS WOULD
FAIL TO NOTIFY THE COURT SHOULD AN INMATE ADVISE THEM OF A COMPLETE
INABILITY, EITHER MENTAL OR PHYSICAL, TO PREPARE A HABEAS APPLICATION
ON HIS OWN BEHALF," BUT THERE IS NO CONTENTION THAT THEY HAVE IN FACT
EVER DONE SO. 

THIS IS OBVIOUSLY FAR SHORT OF THE SHOWING REQUIRED TO DEMONSTRATE
THAT, IN DEPRIVING PRISONERS OF THE ASSISTANCE OF FELLOW INMATES,
TENNESSEE HAS NOT, IN SUBSTANCE, DEPRIVED THOSE UNABLE THEMSELVES, WITH
REASONABLE ADEQUACY, TO PREPARE THEIR PETITIONS, OF ACCESS TO THE
CONSTITUTIONALLY AND STATUTORILY PROTECTED AVAILABILITY OF THE WRIT OF
HABEAS CORPUS.  BY CONTRAST, IN SEVERAL STATES, /8/  THE PUBLIC
DEFENDER SYSTEM SUPPLIES TRAINED ATTORNEYS, PAID FROM PUBLIC FUNDS, WHO
ARE AVAILABLE TO CONSULT WITH PRISONERS REGARDING THEIR HABEAS CORPUS
PETITIONS.  AT LEAST ONE STATE EMPLOYS SENIOR LAW STUDENTS TO INTERVIEW
AND ADVISE INMATES IN STATE PRISONS.  /9/  ANOTHER STATE HAS A
VOLUNTARY PROGRAM WHEREBY MEMBERS OF THE LOCAL BAR ASSOCIATION MAKE
PERIODIC VISITS TO THE PRISON TO CONSULT WITH PRISONERS CONCERNING
THEIR CASES.  /10/  WE EXPRESS NO JUDGMENT CONCERNING THESE PLANS, BUT
THEIR EXISTENCE INDICATES THAT TECHNIQUES ARE AVAILABLE TO PROVIDE
ALTERNATIVES IF THE STATE ELECTS TO PROHIBIT MUTUAL ASSISTANCE AMONG
INMATES. 

EVEN IN THE ABSENCE OF SUCH ALTERNATIVES, THE STATES MAY IMPOSE
REASONABLE RESTRICTIONS AND RESTRAINTS UPON THE ACKNOWLEDGED PROPENSITY
OF PRISONERS TO ABUSE BOTH THE GIVING AND THE SEEKING OF ASSISTANCE IN
THE PREPARATION OF APPLICATIONS FOR RELIEF:  FOR EXAMPLE, BY
LIMITATIONS ON THE TIME AND LOCATION OF SUCH ACTIVITIES AND THE
IMPOSITION OF PUNISHMENT FOR THE GIVING OR RECEIPT OF CONSIDERATION IN
CONNECTION WITH SUCH ACTIVITIES.  CF. HATFIELD V. BAILLEAUX, 290 F.2D
632 (C.A. 9TH CIR. 1961) (SUSTAINING AS REASONABLE REGULATIONS ON THE
TIME AND LOCATION OF PRISONER WORK ON THEIR OWN PETITIONS).  BUT UNLESS
AND UNTIL THE STATE PROVIDES SOME REASONABLE ALTERNATIVE TO ASSIST
INMATES IN THE PREPARATION OF PETITIONS FOR POST-CONVICTION RELIEF, IT
MAY NOT VALIDLY ENFORCE A REGULATION SUCH AS THAT HERE IN ISSUE,
BARRING INMATES FROM FURNISHING SUCH ASSISTANCE TO OTHER PRISONERS. 
/11/ 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  28 U.S.C. 2242 PROVIDES IN PART:  "APPLICATION FOR A WRIT OF
HABEAS CORPUS SHALL BE IN WRITING SIGNED AND VERIFIED BY THE PERSON FOR
WHOSE RELIEF IT IS INTENDED OR BY SOMEONE ACTING IN HIS BEHALF." 

/2/  E.G., FAY V. NOIA, 372 U.S. 391 (1963). 

/3/  28 U.S.C. 2241-2255. 

/4/  SEE NOTE, CONSTITUTIONAL LAW:  PRISON "NO-ASSISTANCE"
REGULATIONS AND THE JAILHOUSE LAWYER, 1968 DUKE L.J. 343, 347-348, 360
361. 

/5/  TENNESSEE DEPARTMENT OF CORRECTION, DEPARTMENTAL REPORT:
FISCAL YEARS 1965-1966, 1966-1067. 

/6/  TENNESSEE'S POST-CONVICTION PROCEDURE PROVIDES FOR APPOINTMENT
OF COUNSEL "IF NECESSARY."  TENN. CODE ANN. SECS. 40-3821, 40-2019
(SUPP. 1967). 

/7/  SEE, E.G., SPECTOR, A PRISON LIBRARIAN LOOKS AT WRIT-WRITING,
56 CALIF.L.REV.  365 (1968). 

/8/  NOTE, SUPRA, N. 4, AT 349, N. 27, AND 359.  SEE ALSO ROSSMOORE
& KOENIGSBERG, HABEAS CORPUS AND THE INDIGENT PRISONER, 11 RUTGERS
L.REV.  611, 619-622 (1957). 

/9/  AT THE TIME OF THE SECOND HEARING IN PETITIONER'S CASE, THE
WARDEN TESTIFIED, THE STATE WAS CONSIDERING SETTING UP A PROGRAM UNDER
WHICH SENIOR LAW STUDENTS FROM VANDERBILT LAW SCHOOL WOULD ASSIST
PRISONERS IN THE PREPARATION OF POST-CONVICTION RELIEF APPLICATIONS. 
FOR WHATEVER IT MAY BE WORTH, PETITIONER TESTIFIED THAT HE WOULD STOP
HELPING OTHER INMATES IF SUCH A SYSTEM WERE IN EXISTENCE. 

/10/  ONE STATE HAS DESIGNATED AN INMATE AS THE OFFICIAL PRISON WRIT
WRITER.  SEE NOTE, SUPRA, N. 4, AT 359. 

/11/  IN REVERSING THE DISTRICT COURT, THE COURT OF APPEALS RELIED
ON THE POWER OF THE STATE TO RESTRICT THE PRACTICE OF LAW TO LICENSED
ATTORNEYS AS A SOURCE OF AUTHORITY FOR THE PRISON REGULATION.  THE
POWER OF THE STATES TO CONTROL THE PRACTICE OF LAW CANNOT BE EXERCISED
SO AS TO ABROGATE FEDERALLY PROTECTED RIGHTS.  NAACP V. BUTTON, 371
U.S. 415 (1963); SPERRY V. FLORIDA, 373 U.S. 379 (1963).  IN ANY EVENT,
THE TYPE OF ACTIVITY INVOLVED HERE-- PREPARATION OF PETITIONS FOR POST
CONVICTION RELIEF-- THOUGH HISTORICALLY AND TRADITIONALLY ONE WHICH MAY
BENEFIT FROM THE SERVICES OF A TRAINED AND DEDICATED LAWYER, IS A
FUNCTION OFTEN, PERHAPS GENERALLY, PERFORMED BY LAYMEN.  TITLE 28
U.S.C. 2242 APPARENTLY CONTEMPLATES THAT IN MANY SITUATIONS PETITIONS
FOR FEDERAL HABEAS CORPUS RELIEF WILL BE PREPARED BY LAYMEN.     MR.
JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I ADD A FEW WORDS IN EMPHASIS
OF THE IMPORTANT THESIS OF THE CASE.     THE INCREASING COMPLEXITIES OF
OUR GOVERNMENTAL APPARATUS AT BOTH THE LOCAL AND THE FEDERAL LEVELS
HAVE MADE IT DIFFICULT FOR A PERSON TO PROCESS A CLAIM OR EVEN TO MAKE
A COMPLAINT.  SOCIAL SECURITY IS A VIRTUAL MAZE; THE HIERARCHY THAT
GOVERNS URBAN HOUSING IS OFTEN SO INTRICATE THAT IT TAKES AN EXPERT TO
KNOW WHAT AGENCY HAS JURISDICTION OVER A PARTICULAR COMPLAINT; THE
OFFICE TO CALL OR OFFICIAL TO SEE FOR NOISE ABATEMENT, FOR A BROKEN
SEWER LINE, OR A FALLEN TREE IS A MYSTERY TO MANY IN OUR METROPOLITAN
AREAS. 

A PERSON WHO HAS A CLAIM ASSERTABLE IN FARAWAY WASHINGTON, D.C., IS
EVEN MORE HELPLESS, AS EVIDENCED BY THE INCREASING TENDENCY OF
CONSTITUENTS TO RELY ON THEIR CONGRESSIONAL DELEGATION TO IDENTIFY,
PRESS, AND PROCESS THEIR CLAIMS. 

WE THINK OF CLAIMS AS GRIST FOR THE MILL OF THE LAWYERS.  BUT IT IS
BECOMING ABUNDANTLY CLEAR THAT MORE AND MORE OF THE EFFORT IN FERRETING
OUT THE BASIS OF CLAIMS AND THE AGENCIES RESPONSIBLE FOR THEM AND IN
PREPARING THE ALMOST ENDLESS PAPERWORK FOR THEIR PROSECUTION IS WORK
FOR LAYMEN.  THERE ARE NOT ENOUGH LAWYERS TO MANAGE OR SUPERVISE ALL OF
THESE AFFAIRS; AND MUCH OF THE BASIC WORK DONE REQUIRES NO SPECIAL
LEGAL TALENT.  YET THERE IS A CLOSED-SHOP PHILOSOPHY IN THE LEGAL
PROFESSION THAT CUTS DOWN DRASTICALLY ACTIVE ROLES FOR LAYMEN.  IT WAS
EXPRESSED BY A NEW YORK COURT IN DENYING AN APPLICATION FROM THE
NEIGHBORHOOD LEGAL SERVICES FOR PERMISSION TO OFFER A BROAD LEGAL-AID
TYPE OF SERVICE TO INDIGENTS: 

   "(IN ANY LEGAL ASSISTANCE CORPORATION, SUPPORTED BY FEDERAL

  ANTIPOVERTY FUNDS, THE EXECUTIVE STAFF, AND THOSE WITH THE

  RESPONSIBILITY TO HIRE AND DISCHARGE STAFF FROM THE VERY TOP TO

  THE LOWEST LAY ECHELON MUST BE LAWYERS."  MATTER OF ACTION FOR

  LEGAL SERVICES, 26 APP.DIV.2D 354, 360, 274 N.Y.S.2D 779, 787

  (1966). 

THAT TRADITIONAL, CLOSED-SHOP ATTITUDE IS UTTERLY OUT OF PLACE IN
THE MODERN WORLD /1/  WHERE CLAIMS PILE HIGH AND MUCH OF THE WORK OF
TRACING AND PURSUING THEM REQUIRES THE PATIENCE AND WISDOM OF A LAYMAN
RATHER THAN THE LEGAL SKILLS OF A MEMBER OF THE BAR. 

"IF POVERTY LAWYERS ARE OVERWORKED, SOME OF THE WORK CAN BE

  DELEGATED TO SUB-PROFESSIONALS.  NEW YORK LAW PERMITS SENIOR LAW

  STUDENTS TO PRACTICE LAW UNDER CERTAIN SUPERVISED CONDITIONS. 

  APPROVAL MUST FIRST BE GRANTED BY THE APPELLATE DIVISION.  A RUNG

  OR TWO LOWER ON THE LEGAL PROFESSION'S LADDER ARE LAYMEN LEGAL

  TECHNICIANS, COMPARABLE TO NURSES AND LAB ASSISTANTS IN THE

  MEDICAL PROFESSION.  LARGE LAW FIRMS EMPLOY THEM, AND THERE SEEMS

  TO BE NO REASON WHY THEY CANNOT BE USED IN LEGAL SERVICES

  PROGRAMS TO RELIEVE ATTORNEYS FOR MORE PROFESSIONAL TASKS." 

  SAMORE, LEGAL SERVICES FOR THE POOR, 32 ALBANY L.REV.  509,

515-516 (1968). 

AND SEE SPAREER, THORKELSON, & WEISS, THE LAY ADVOCATE, 43 U.DET.L.J.
493, 510-514 (1966). 

THE PLIGHT OF A MAN IN PRISON MAY IN THESE RESPECTS BE EVEN MORE
ACUTE THAN THE PLIGHT OF A PERSON ON THE OUTSIDE.  HE MAY NEED
COLLATERAL PROCEEDINGS TO TEST THE LEGALITY OF HIS DETENTION /2/  OR
RELIEF AGAINST MANAGEMENT OF THE PAROLE SYSTEM /3/  OR AGAINST
DEFECTIVE DETAINERS LODGED AGAINST HIM WHICH CREATE BURDENS IN THE
NATURE OF HIS INCARCERATED STATUS.  /4/  HE MAY HAVE GRIEVANCES OF A
CIVIL NATURE AGAINST THOSE OUTSIDE THE PRISON.  HIS IMPIRSONMENT MAY
GIVE HIS WIFE GROUNDS FOR DIVORCE AND BE A FACTOR IN DETERMINING THE
CUSTODY OF HIS CHILDREN; AND HE MAY HAVE PRESSING SOCIAL SECURITY,
WORKMEN'S COMPENSATION, OR VETERANS' CLAIMS.  /5/ 

WHILE THE DEMAND FOR LEGAL COUNSEL IN PRISON IS HEAVY, THE SUPPLY IS
LIGHT.  FOR PRIVATE MATTERS OF A CIVIL NATURE, LEGAL COUNSEL FOR THE
INDIGENT IN PRISON IS ALMOST NONEXISTENT.  EVEN FOR CRIMINAL
PROCEEDINGS, IT IS SPARSE.  /6/  WHILE A FEW STATES HAVE POST
CONVICTION STATUTES PROVIDING SUCH COUNSEL, /7/  MOST STATES DO NOT. 
/8/  SOME STATES LIKE CALIFORNIA DO APPOINT COUNSEL TO REPRESENT THE
INDIGENT PRISONER IN HIS COLLATERAL HEARINGS, ONCE HE SUCCEEDS IN
MAKING OUT A PRIMA FACIE CASE.  /9/  BUT AS A RESULT, COUNSEL IS NOT ON
HAND FOR PREPARATION OF THE PAPERS OR FOR THE INITIAL DECISION THAT THE
PRISONER'S CLAIM HAS SUBSTANCE. 

MANY THINK THAT THE PRISONER NEEDS HELP AT AN EARLY STAGE TO WEED
OUT FRIVOLOUS CLAIMS.  /10/  SOME STATES HAVE LEGAL AID SOCIETIES,
SPONSORED IN PART BY THE NATIONAL LEGAL AID AND DEFENDER ASSOCIATION,
THAT PROVIDE POSTCONVICTION COUNSEL TO PRISONERS.  /11/  MOST LEGAL AID
OFFICES, HOWEVER, HAVE SO MANY PRESSING OBLIGATIONS OF A CIVIL AND
CRIMINAL NATURE IN THEIR OWN COMMUNITIES AND AMONG FREEMEN, AS NOT TO
BE ABLE TO PROVIDE ANY SATISFACTORY ASSISTANCE TO PRISONERS.  /13/  THE
SAME THINK IS TRUE OF OEO-SPONSORED NEIGHBORHOOD LEGAL SERVICES
OFFICES, WHICH SEE THEIR FUNCTION AS PROVIDING LEGAL COUNSEL FOR A
PARTICULAR COMMUNITY, WHICH A MEMBER LEAVES AS SOON AS HE IS TAKEN TO
PRISON.  /13/  IN SOME CASES, STATE PUBLIC DEFENDERS WILL REPRESENT A
MAN EVEN AFTER HE PASSES BEYOND PRISON WALLS.  BUT MORE OFTEN, THE
PUBLIC DEFENDER HAS NO GENERAL AUTHORIZATION TO PROCESS POSTCONVICTION
MATTERS.  /14/ 

SOME STATES HAVE EXPERIMENTED WITH PROGRAMS DESIGNED ESPECIALLY FOR
THE PRISON COMMUNITY.  THE BUREAU OF PRISONS LED THE WAY WITH A PROGRAM
OF ALLOWING SENIOR LAW STUDENTS TO SERVICE THE FEDERAL PENITENTIARY AT
LEAVENWORTH, KANSAS.  SINCE THEN, IT HAS ENCOURAGED SIMILAR PROGRAMS AT
LEWISBURG (UNIVERSITY OF PENNSYLVANIA LAW SCHOOL) AND ELSEWHERE.  EMORY
UNIVERSITY SCHOOL OF LAW PROVIDES FREE LEGAL ASSISTANCE TO THE INMATES
OF ATLANTA FEDERAL PENITENTIARY.  THE PROGRAM OF THE LAW SCHOOL AT THE
UNIVERSITY OF CALIFORNIA AT LOS ANGELES IS NOW ABOUT TO REACH INSIDE
FEDERAL PRISONS.  IN DESCRIBING THE UNIVERSITY OF KANSAS LAW SCHOOL
PROGRAM AT LEAVENWORTH, LEGAL COUNSEL FOR THE BUREAU OF PRISONS HAS
SAID: 

"THE EXPERIENCE AT LEAVENWORTH HAS SHOWN THAT THERE HAVE BEEN VERY
FEW ATTACKS UPON THE (PRISON) ADMINISTRATION; THAT PROSPECTIVE
FRIVOLOUS LITIGATION HAS BEEN SCREENED OUT AND THAT WHERE THE LAW
SCHOOL FELT THE PRISONER HAD A GOOD CAUSE OF ACTION RELIEF WAS GRANTED
IN A GREAT PERCENTAGE OF CASES.  A LARGE PART OF THE ACTIVITY WAS
DISPOSING OF LONG OUTSTANDING DETAINERS LODGED AGAINST THE INMATES.  IN
ADDITION, THE PROGRAM HANDLES CIVIL MATTERS SUCH AS DOMESTIC RELATIONS
PROBLEMS AND COMPENSATION CLAIMS.  EVEN WHERE THERE HAS BEEN NO
TANGIBLE SUCCESS, THE FACT THAT THE INMATE HAD SOMEONE ON THE OUTSIDE
LISTEN TO HIM AND ANALYZE HIS PROBLEMS HAD A MOST BENEFICIAL EFFECT.  .
. . WE THINK THAT THESE PROGRAMS HAVE BEEN BENEFICIAL NOT ONLY TO THE
INMATES BUT TO THE STUDENTS, THE STAFF AND THE COURTS."  /15/ 

THE DIFFICULTY WITH AN AD HOC PROGRAM RESTING ON A SHIFTING LAW
SCHOOL POPULATION IS THAT, WORTHY THOUGH IT BE, IT OFTEN CANNOT MEET
THE DAILY PRISON DEMANDS.  /16/  IN DESPERATION, AT LEAST ONE STATE HAS
ALLOWED A SELECTED INMATE TO ACT AS "JAILHOUSE" COUNSEL FOR THE
REMAINING INMATES.  /17/ THE SERVICE OF LEGAL AID, PUBLIC DEFENDERS,
AND ASSIGNED COUNSEL HAS BEEN SPREAD TOO THINLY TO SERVE PRISONS
ADEQUATELY.  /18/  SOME FEDERAL COURTS HAVE BEGUN TO PROVIDE PRISONS
WITH STANDARDIZED HABEAS CORUPS FORMS, IN THE HOPE THAT THEY CAN BE
USED BY LAYMEN.  /19/  BUT THE PRISON POPULATION HAS NOT FOUND THAT
SATISFACTORY.  /20/ 

WHERE GOVERNMENT FAILS TO PROVIDE THE PRISON WITH THE LEGAL COUNSEL
IT DEMANDS, THE PRISON GENERATES ITS OWN.  IN A COMMUNITY WHERE
ILLITERACY AND MENTAL DEFICIENCY IS NOTORIOUSLY HIGH, IT IS NOT ENOUGH
TO ASK THE PRISONER TO BE HIS OWN LAWYER.  /21/  WITHOUT THE ASSISTANCE
OF FELLOW PRISONERS, SOME MERITORIOUS CLAIMS WOULD NEVER SEE THE LIGHT
OF A COURTROOM.  IN CASES WHERE THAT ASSISTANCE SUCCEEDS, IT SPEAKS FOR
ITSELF.  AND EVEN IN CASES WHERE IT FAILS, IT MAY PROVIDE A NECESSARY
MEDIUM OF EXPRESSION:  /22/ 

     "IT IS NOT UNUSUAL, THEN, IN A SUBCULTURE CREATED BY THE

  CRIMINAL LAW, WHEREIN PRISONERS EXIST AS CREATURES OF THE LAW,

  THAT THEY SHOULD USE THE LAW TO TRY TO RECLAIM THEIR PREVIOUSLY

ENJOYED STATUS IN SOCIETY.  THE UPHEAVALS OCCURRING IN THE

AMERICAN SOCIAL STRUCTURE ARE REFLECTED WITHIN THE PRISON

  ENVIRONMENT.  PRISONERS, HAVING REAL OR IMAGINED GRIEVANCES,

  CANNOT DEMONSTRATE IN PROTEST AGAINST THEM.  THE RIGHT PEACEABLY

  TO ASSEMBLE IS DENIED TO THEM.  THE ONLY AVENUE OPEN TO PRISONERS

  IS TAKING THEIR CASE TO COURT.  PRISON WRIT-WRITERS WOULD COMPARE

  THEMSELVES TO THE DISSENTERS OUTSIDE PRISON.  . . .

        *          * *          * 

     "MANY WRIT-WRITERS HAVE SAID THAT THEY WOULD BE ABLE TO MAKE

  POSITIVE PLANS FOR THE FUTURE IF THEY KNEW WHEN THEIR

  (INDETERMINATE) SENTENCES WOULD END.  THEY SEEM TO FEEL THAT THEY

  ARE LIVING IN A VACUUM WHERE THEIR FATES ARE DETERMINED

  ARBITRARILY RATHER THAN BY RULE OF LAW.  ONE WRIT-WRITER VERY

  APTLY SUMMED UP THE MAJORITY'S VIEW WITH THESE WORDS:  'WHEN I

  ARRIVED AT THE PRISON AND DISCOVERED THAT NO ONE, INCLUDING THE

  PRISON OFFICIALS, KNEW HOW LONG MY SENTENCE WAS, I HAD TO RESORT

 TO FIGHTING MY CASE TO KEEP MY SANITY.'  . . . PSYCHOLOGICALLY,

  THE WRIT-WRITER, IN SEEKING RELIEF FROM THE COURTS, IS PURSUING A

  COURSE OF ACTION WHICH RELIEVES THE TENSIONS AND ANXIETIES

  CREATED BY THE (INDETERMINATE) SENTENCE SYSTEM."  /23/ 

IN THAT VIEW, WHICH MANY SHARE, THE PREPARATION OF THESE ENDLESS
PETITIONS WITHIN THE PRISONS IS A USEFUL FORM OF THERAPY.  APART FROM
THAT, THEIR PREPARATION MUST NEVER BE CONSIDERED THE EXCLUSIVE
PREROGATIVE OF THE LAWYER.  LAYMEN-- IN AND OUT OF PRISON-- SHOULD BE
ALLOWED TO ACT AS "NEXT FRIEND" TO ANY PERSON IN THE PREPARATION OF ANY
PAPER OR DOCUMENT OR CLAIM, SO LONG AS HE DOES NOT HOLD HIMSELF OUT AS
PRACTICING LAW OR AS BEING A MEMBER OF THE BAR. 

THE COOPERATION AND HELP OF LAYMEN, AS WELL AS OF LAWYERS, IS
NECESSARY IF THE RIGHT OF "(REASONABLE ACCESS TO THE COURTS"  /24/  IS
TO BE AVAILABLE TO THE INDIGENTS AMONG US. 

/1/  THE NEW YORK PROGRAM THAT IS FUNDED BY THE OFFICE OF ECONOMIC
OPPORTUNITY (OEO) AND WHICH AS NOTED WAS FIRST REJECTED BY THE NEW YORK
COURTS, IS CALLED COMMUNITY ACTION FOR LEGAL SERVICES.  IT WAS FINALLY
APPROVED BY THE NEW YORK COURTS WITH A BOARD OF DIRECTORS OF 20 LAWYERS
AND 10 LAYMEN.  158 N.Y.L.J.NO. 72, PP. 1, 5 (1967). 

/2/  REITZ, FEDERAL HABEAS CORPUS:  POSTCONVICTION REMEDY FOR STATE
PRISONERS, 108 U.PA.L.REV.  461 (1960). 

/3/  HUBANKS & LINDE, LEGAL SERVICES TO THE INDIGENT IMPRISONED, 23
LEGAL AID BRIEFCASE 214 (1965). 

/4/  TEMIN, REPORT ON POSTCONVICTION SERVICES TO THE COUNTY PRISON,
25 LEGAL AID BRIEFCASE 18 (1966). 

/5/  NOTE, CONSTITUTIONAL LAW:  PRISON "NO-ASSISTANCE" REGULATIONS
AND THE JAILHOUSE LAWYER, 1968 DUKE L.J. 343. 

/6/  L. SILVERSTEIN, DEFENSE OF THE POOR IN CRIMINAL CASES IN
AMERICAN STATE COURTS:  A PRELIMINARY SUMMARY (AMER.  BAR FOUNDATION
1964); NOTE, LEGAL SERVICES FOR THE POOR, 49 MASS.L.Q. 293 (1964);
O.E.O. AND LEGAL SERVICES-- A SYMPOSIUM, 14 CATHOLIC LAW.  92-174
(1968); NOTE, LEGAL SERVICES FOR PRISON INMATES, 1967 WIS.L.REV.  514;
UELMEN, POST-CONVICTION RELIEF FOR FEDERAL PRISONERS UNDER 28 U.S.C.
2255:  A SURVEY AND A SUGGESTION, 69 W.VA.L.REV.  277 (1967). 

/7/  ILL. REV. STAT., C. 38, SEC. 122-4 (1967); ORE.  REV.  STAT.
SEC. 138.590 (1967). 

/8/  COMMENT, RIGHT TO COUNSEL IN CRIMINAL POST-CONVICTION REVIEW
PROCEEDINGS, 51 CALIF.L.REV.  970 (1963). 

/9/  SEE, E.G., PEOPLE V. SHIPMAN, 62 CAL.2D 226, 397 P.2D 993
(1965).  NOTE, INDIGENT'S RIGHT TO COUNSEL IN POST-CONVICTION
COLLATERAL PROCEEDINGS IN CALIFORNIA:  PEOPLE V. SHIPMAN, 13
U.C.L.A.L.REV.  446 (1966). 

/10/  "LAWYERS GENERALLY REQUIRE AT LEAST A FIFTY DOLLAR FEE TO
TRAVEL TO THE PRISONS TO CONSULT WITH A PRISONER.  THE ONES NOT ABLE TO
PAY THIS SUM MUST RESORT TO THE NEXT BEST COURSE OF ACTION-- ACT AS
THEIR OWN LAWYERS.  THE DISADVANTAGES TO THE PRISONER ARE OBVIOUS.  A
LAWYER, AFTER EXAMINING THE PRISONER'S TRANSCRIPTS OR CONDUCTING AN
INDEPENDENT INVESTIGATION OF THE FACTS, COULD IMMEDIATELY ADVISE HIM ON
A COURSE OF ACTION.  LACKING THE MONEY TO HIRE A LAWYER, THE PRISONER
MUST SPEND CONSIDERABLE TIME RESEARCHING THE LAW, PREPARING THE
REQUIRED LEGAL DOCUMENTS, AND FILING THEM.  SOMETIMES YEARS PASS BEFORE
THE PRISONER DISCOVERS WHAT A LAWYER COULD HAVE TOLD HIM IN SEVERAL
WEEKS-- THAT HIS CASE EITHER HAS OR LACKS MERIT.  THE PRISONERS WHO
HAVE MILITANTLY PROSECUTED FRIVOLOUS ACTIONS HAVE WASTED TIME THEY
COULD HAVE DEVOTED TO PREPARING THEMSELVES FOR RELEASE FROM PRISON. 
THE STATE, BY SHOULDERING THESE INDIGENT PRISONERS WITH THE
RESPONSIBILITY OF ACTING AS THEIR OWN COUNSEL, HAS DISSIPATED THE
TAXPAYERS' MONEY IN WASTED MANPOWER AND COURT COSTS."  LARSEN, A
PRISONER LOOKS AT WRIT-WRITING, 56 CALIF.L.REV.  343, 345-346 (1968). 

/11/  NOTE, LEGAL SERVICES FOR THE POOR, 49 MASS.L.Q. 293 (1964). 

/12/  NOTE, REPRESENTATION OF INDIGENT CRIMINAL DEFENDANTS IN THE
FEDERAL DISTRICT COURTS, 76 HARV.L.REV.  579 (1963); NOTE,
REPRESENTATION OF INDIGENTS IN CALIFORNIA-- A FIELD STUDY OF THE PUBLIC
DEFENDER AND ASSIGNED COUNSEL SYSTEMS, 13 STAN.L.REV.  522 (1961);
GARDINER, DEFECTS IN PRESENT LEGAL AID SERVICE AND THE REMEDIES, 22
TENN.L.REV.  505 (1952); NOTE, PRISONER ASSISTANCE ON FEDERAL HABEAS
CORPUS PETITIONS, 19 STAN.L.REV.  887 (1967).     /13/  O.E.O. AND
LEGAL SERVICES-- A SYMPOSIUM, 14 CATHOLIC LAW.  92-174 (1968). 

/14/  E. MANCUSO, THE PUBLIC DEFENDER SYSTEM IN THE STATE OF
CALIFORNIA 5 (1959). 

/15/  BARKIN, IMPACT OF CHANGING LAW UPON PRISON POLICY, 47 PRISON
J. 3, 8 (1969).  AND SEE MATTER OF CORNELL LEGAL AID CLINIC, 26
APP.DIV.2D 790, 273 N.Y.S.2D 444. 

/16/  WILSON, LEGAL ASSISTANCE PROJECT AT LEAVENWORTH, 24 LEGAL AID
BRIEFCASE 254 (1966). 

/17/  NOTE, SUPRA, N. 5, AT 359. 

/18/  NOTE, REPRESENTATION OF INDIGENT CRIMINAL DEFENDANTS IN THE
FEDERAL DISTRICT COURTS, 76 HARV.L.REV.  579 (1963); NOTE,
REPRESENTATION OF INDIGENTS IN CALIFORNIA-- A FIELD STUDY OF THE PUBLIC
DEFENDER AND ASSIGNED COUNSEL SYSTEMS, 13 STAN.L.REV.  522 (1961). 

/19/  R. SOKOL, A HANDBOOK OF FEDERAL HABEAS CORPUS 53-54, 192-200
(1965). 

/20/  LARSEN, A PRISONER LOOKS AT WRIT-WRITING, 56 CALIF.L.REV. 
343, 353 (1968). 

/21/  NOTE, SUPRA, N. 5, AT 348-349. 

/22/  FREUND, REMARKS, SYMPOSIUM, HABEAS CORPUS-- PROPOSALS FOR
REFORM, 9 UTAH L.REV.  18, 30 (1964). 

/23/  LARSEN, A PRISONER LOOKS AT WRIT-WRITING, 56 CALIF.L.REV. 
343, 347-348 (1968). 

/24/  "REASONABLE ACCESS TO THE COURTS IS . . . A RIGHT (SECURED BY
THE CONSTITUTION AND LAWS OF THE UNITED STATES), BEING GUARANTEED AS
AGAINST STATE ACTION BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  IN SO FAR AS ACCESS BY STATE PRISONERS TO FEDERAL COURTS IS
CONCERNED, THIS RIGHT WAS RECOGNIZED IN EX PARTE HULL, 312 U.S. 546,
549.  . . . THE RIGHT OF ACCESS BY STATE PRISONERS TO STATE COURTS WAS
RECOGNIZED IN WHITE V. RAGAN, 324 U.S. 760, 762, N. (1)."  HATFIELD V.
BAILLEAUX, 290 F.2D 632, 636 (C.A. 9TH CIR. 1961). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

IT IS TRUE, AS THE MAJORITY SAYS, THAT HABEAS CORPUS IS THE GREAT
WRIT, AND THAT ACCESS THROUGH IT TO THE COURTS CANNOT BE DENIED SIMPLY
BECAUSE A MAN IS INDIGENT OR ILLITERATE.  IT IS ALSO TRUE THAT THE
ILLITERATE OR POORLY EDUCATED AND INEXPERIENCED INDIGENT CANNOT
ADEQUATELY HELP HIMSELF AND THAT UNLESS HE SECURES AID FROM SOME OTHER
SOURCE HE IS EFFECTIVELY DENIED THE OPPORTUNITY TO PRESENT TO THE
COURTS WHAT MAY BE VALID CLAIMS FOR POSTCONVICTION RELIEF. 

HAVING IN MIND THESE MATTERS, WHICH SEEM TOO CLEAR FOR ARGUMENT, THE
COURT RULES THAT UNLESS THE STATE PROVIDES A REASONABLY ADEQUATE
ALTERNATIVE, IT MAY NOT ENFORCE ITS RULE AGAINST INMATES FURNISHING
HELP TO OTHERS IN PREPARING POST-CONVICTION PETITIONS.  THE COURT DOES
NOT SAY SO IN SO MANY WORDS, BUT APPARENTLY THE EXTENT OF THE STATE'S
DUTY IS NOT TO INTERFERE WITH INDIGENTS SEEKING ADVICE FROM OTHER
PRISONERS.  IT SEEMS TO ME, HOWEVER, THAT UNLESS THE HELP THE INDIGENT
GETS FROM OTHER INMATES IS REASONABLY ADEQUATE FOR THE TASK, HE WILL BE
AS SURELY AND EFFECTIVELY BARRED FROM THE COURTS AS IF HE WERE ACCORDED
NO HELP AT ALL.  IT MAY BE THAT THOSE WHO COULD HELP EFFECTIVELY REFUSE
TO DO SO BECAUSE THE INDIGENT CANNOT PAY, THAT THERE IS ACTUALLY NO
FELLOW INMATE WHO IS COMPETENT TO HELP, OR THAT THE REALITIES OF PRISON
LIFE LEAVE THE INDIGENT TO THE MERCIES OF THOSE WHO SHOULD NOT BE
ADVISING OTHERS AT ALL.  IN THIS EVENT THE PROBLEM OF THE INCOMPETENT
NEEDING HELP IS ONLY EXACERBATED AS IS THE DIFFICULTY OF THE COURTS IN
DEALING WITH A MOUNTING FLOW OF INADEQUATE AND MISCONCEIVED PETITIONS. 

THE MAJORITY ADMITS THAT IT "IS INDISPUTABLE" THAT JAILHOUSE LAWYERS
LIKE PETITIONER "ARE SOMETIMES A MENACE TO PRISON DISCIPLINE AND THAT
THEIR PETITIONS ARE OFTEN SO UNSKILLFUL AS TO BE A BURDEN ON THE COURTS
WHICH RECEIVE THEM."  THAT IS PUTTING IT MILDLY.  THE DISCIPLINARY
PROBLEMS ARE SEVERE, THE BURDEN ON THE COURTS SERIOUS, AND THE
DISADVANTAGES TO PRISONER CLIENTS OF THE JAILHOUSE LAWYERS ARE
UNACCEPTABLE. 

ALTHOUGH SOME JAILHOUSE LAWYERS ARE NO DOUBT VERY CAPABLE, IT IS NOT
NECESSARILY THE BEST AMATEUR LEGAL MINDS WHICH ARE DEVOTED TO JAILHOUSE
LAWYERING.  RATHER, THE MOST AGGRESSIVE AND DOMINEERING PERSONALITIES
MAY PREDOMINATE.  AND IT MAY NOT BE THOSE WITH THE BEST CLAIMS TO
RELIEF WHO ARE SERVED AS CLIENTS, BUT THOSE WHO ARE WEAKER AND MORE
GULLIBLE.  MANY ASSERT THAT THE AIM OF THE JAILHOUSE LAWYER IS NOT THE
SERVICE OF TRUTH AND JUSTICE, BUT RATHER SELF-AGGRANDIZEMENT, PROFIT,
AND POWER.  ACCORDING TO PRISON OFFICIALS, WHOSE EXPERTISE IN SUCH
MATTERS SHOULD BE GIVEN SOME CONSIDERATION, THE JAILHOUSE LAWYER OFTEN
SUCCEEDS IN ESTABLISHING HIS OWN POWER STRUCTURE, QUITE APART FROM THE
FORMAL SYSTEM OF WARDEN, GUARDS, AND TRUSTIES WHICH THE PRISON SEEKS TO
MAINTAIN.  THOSE WHOM THE JAILHOUSE LAWYER SERVES MAY COME MORALLY
UNDER HIS SWAY AS THE ONE HOPE OF THEIR RELEASE, AND REPAY HIM NOT ONLY
WITH OBEDIENCE BUT WITH WHAT MINOR GIFTS AND OTHER FAVORS ARE AVAILABLE
TO THEM.  WHEN A CLIENT REFUSES TO PAY, VIOLENCE MAY RESULT, IN WHICH
THE JAILHOUSE LAWYER MAY BE AIDED BY HIS OTHER CLIENTS.  /1/ 

IT CANNOT BE EXPECTED THAT THE PETITIONS WHICH EMERGE FROM SUCH A
PROCESS WILL BE OF THE HIGHEST QUALITY.  CODES OF ETHICS, CHAMPERTY,
AND MAINTENANCE, FREQUENTLY HAVE LITTLE MEANING TO THE JAILHOUSE
LAWYER, WHO SOLICITS BUSINESS AS VIGOROUSLY AS HE CAN.  IN THE PETITION
ITSELF, OUTRIGHT LIES MAY SERVE THE JAILHOUSE LAWYER'S PURPOSE SINCE BY
PROCURING FOR A PRISONER CLIENT A SHORT TRIP OUT OF JAIL FOR A HEARING
ON HIS CONTENTIONS THE PETITION WRITER'S CREDIBILITY WITH THE OTHER
CONVICTS IS IMPROVED. 

HABEAS CORPUS PETITIONS, AS THE MAJORITY NOTES, ARE RELATIVELY EASY
TO PREPARE:  THEY NEED ONLY SET OUT THE FACTS GIVING RISE TO A CLAIM
FOR RELIEF AND THE JUDGE WILL APPLY THE LAW, APPOINTING A LAWYER FOR
THE PRISONER AND GIVING HIM A HEARING WHEN APPROPRIATE.  THIS FACT DOES
NOT BUTTRESS THE UNREGULATED JAILHOUSE LAWYER SYSTEM, BUT UNDERMINES
IT.  TO THE EXTENT THAT IT IS EASY TO STATE A CLAIM, ANY PRISONER CAN
DO IT, AND NEED NOT SUBMIT TO THE MERCIES OF A JAILHOUSE LAWYER.  TO
THE EXTENT THAT IT IS DIFFICULT-- AND IT IS NECESSARY TO UNDERSTAND
WHAT ONE'S RIGHTS ARE BEFORE IT IS POSSIBLE TO SET OUT IN A PETITION
THE FACTS WHICH SUPPORT THEM-- THERE MAY BE NO FELLOW PRISONER ADEQUATE
TO THE TASK.  THERE ARE SOME WELL INFORMED AND ARTICULATE PRISONERS AND
SOME (NOT NECESSARILY THE SAME) WHO GIVE ADVICE AND AID OUT OF
ALTRUISM.  WHEN THE TWO QUALITIES ARE COMBINED IN ONE MAN, AS THEY
SOMETIMES ARE, HE CAN BE A PERFECTLY ADEQUATE SOURCE OF HELP.  BUT THE
JAILS ARE NOT CHARACTERISTICALLY POPULATED WITH THE INTELLIGENT OR THE
BENIGN, AND CAPABLE ALTRUISTS MUST BE RARE INDEED.  ON THE OTHER HAND,
SOME JAILHOUSE CLIENTS ARE ILLITERATE; AND WHETHER ILLITERATE OR NOT,
THERE ARE OTHERS WHO ARE UNABLE TO PREPARE THEIR OWN PETITIONS.  THEY
NEED HELP, BUT I DOUBT THAT THE PROBLEM OF THE INDIGENT CONVICT WILL BE
SOLVED BY SUBJECTING HIM TO THE FALSE HOPES, DOMINANCE, AND INEPT
REPRESENTATION OF THE AVERAGE UNSUPERVISED JAILHOUSE LAWYER. 

I CANNOT SAY, THEREFORE, THAT PETITIONER JOHNSON, WHO IS A CONVICTED
RAPIST SERVING A LIFE SENTENCE AND WHOSE PRISON CONDUCT THE STATE HAS
WIDE DISCRETION IN REGULATING, CANNOT BE DISCIPLINED FOR VIOLATING A
PRISON RULE AGAINST AIDING OTHER PRISONERS IN SEEKING POST-CONVICTION
RELIEF, PARTICULARLY WHEN THERE IS NO SHOWING THAT ANY PRISONER IN THE
TENNESSEE STATE PENITENTIARY HAS BEEN DENIED ACCESS TO THE COURTS, THAT
JOHNSON HAS CONFINED HIS SERVICES TO THOSE WHO NEED IT, OR THAT JOHNSON
IS HIMSELF COMPETENT TO GIVE THE ADVICE WHICH HE OFFERS.  NO PRISONER
TESTIFIED THAT JOHNSON WAS THE ONLY PERSON AVAILABLE WHO WOULD WRITE
OUT A WRIT FOR HIM OR THAT GUARDS OR OTHER PRISON FUNCTIONARIES WOULD
NOT FURNISH THE NECESSARY HELP.  AND IT IS REALLY THE PRISONER CLIENT'S
RIGHTS, NOT THE JAILHOUSE LAWYER'S, WHICH ARE MOST IN NEED OF
PROTECTION. 

IF THE PROBLEM OF THE INDIGENT AND IGNORANT CONVICT IN SEEKING POST
CONVICTION RELIEF IS SUBSTANTIAL, WHICH I THINK IT IS, THE BETTER
COURSE IS NOT IN EFFECT TO SANCTION AND ENCOURAGE SPONTANEOUS JAILHOUSE
LAWYER SYSTEMS BUT TO DECIDE THE MATTER DIRECTLY IN THE CASE OF A MAN
WHO HIMSELF NEEDS HELP AND IN THAT CASE TO RULE THAT THE STATE MUST
PROVIDE ACCESS TO THE COURTS BY ENSURING THAT THOSE WHO CANNOT HELP
THEMSELVES HAVE REASONABLY ADEQUATE ASSISTANCE IN PREPARING THEIR POST
CONVICTION PAPERS.  IDEALLY, PERHAPS PROFESSIONAL HELP SHOULD BE
FURNISHED AND PRISONERS ENCOURAGED TO SEEK IT SO THAT ANY POSSIBLE
CLAIMS RECEIVE EARLY AND COMPLETE EXAMINATION.  BUT I AM INCLINED TO
AGREE WITH MR. JUSTICE DOUGLAS THAT IT IS NEITHER PRACTICAL NOR
NECESSARY TO REQUIRE THE HELP OF LAWYERS.  AS THE OPINIONS IN THIS CASE
INDICATE, THE ALTERNATIVES ARE VARIOUS AND THE BURDEN ON THE STATES
WOULD NOT BE IMPOSSIBLE TO DISCHARGE.  THIS REQUIREMENT MIGHT EVEN BE
MET BY THE ESTABLISHMENT OF A SYSTEM OF REGULATED TRUSTIES OF THE
PRISON WHO WOULD ADVISE PRISONERS OF THEIR LEGAL RIGHTS.  SELECTION OF
THE JAILHOUSE LAWYERS BY THE PRISON OFFICIALS FOR SCHOLARSHIP AND
CHARACTER MIGHT ASSURE THAT THE INMATE CLIENT RECEIVED ADVICE WHICH
WOULD ACTUALLY HELP HIM, AND REGULATION OF THE "PRACTICE" BY THE
AUTHORITIES WOULD REDUCE THE LIKELIHOOD OF COERCED FEES OR BLACKMAIL. 
THE SAME LEGISLATIVE JUDGMENT WHICH SHOULD BE SUSTAINED IN CONCLUDING
THAT THE EVILS OF JAILHOUSE LAWYERING JUSTIFY ITS PROSCRIPTION MIGHT
ALSO SUPPORT A LEGISLATIVE CONCLUSION THAT JAILHOUSE LAWYERING UNDER
CAREFULLY CONTROLLED CONDITIONS SATISFIES THE PRISONER'S CONSTITUTIONAL
RIGHT TO HELP. 

REGRETFULLY, THEREFORE, I DISSENT. 

/1/  KRAUSE, A LAWYER LOOKS AT WRIT-WRITING, 56 CALIF.L.REV.  371
(1968); SPECTOR, A PRISON LIBRARIAN LOOKS AT WRIT-WRITING, 56
CALIF.L.REV.  365 (1968); NOTE, CONSTITUTIONAL LAW:  PRISON "NO
ASSISTANCE" REGULATIONS AND THE JAILHOUSE LAWYER, 1968 DUKE L.J. 343,
345-347; NOTE, LEGAL SERVICES FOR PRISON INMATES, 1967 WIS.L.REV.  514,
520-522; NOTE; PRISONER ASSISTANCE ON FEDERAL HABEAS CORPUS PETITIONS,
19 STAN.L.REV.  887, 891, N. 31 (1967). 

KARL P. WARDEN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS PIERCE WINNINGHAM. 

THOMAS E. FOX, DEPUTY ATTORNEY GENERAL OF TENNESSEE, ARGUED THE
CAUSE FOR RESPONDENTS.  WITH HIM ON THE BRIEF WERE GEORGE F. MCCANLESS,
ATTORNEY GENERAL, AND DAVID W. MCMACKIN, ASSISTANT ATTORNEY GENERAL. 

MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION
ET AL., AS AMICI CURIAE, URGING REVERSAL. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, ALBERT W. HARRIS,
JR., ASSISTANT ATTORNEY GENERAL, AND ROBERT R. GRANUCCI AND GEORGE R.
NOCK, DEPUTY ATTORNEYS GENERAL, FILED A BRIEF FOR THE STATE OF
CALIFORNIA, AS AMICUS CURIAE, URGING AFFIRMANCE. 
..END :
























TINKER V. DES MOINES SCHOOL DIST., 393 U.S. 503 


       TINKER ET AL. V. DES MOINES INDEPENDENT COMMUNITY SCHOOL

           DISTRICT ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 21.  ARGUED NOVEMBER 12, 1968.-- DECIDED FEBRUARY 24,

           1969. 


PETITIONERS, THREE PUBLIC SCHOOL PUPILS IN DES MOINES, IOWA, WERE
SUSPENDED FROM SCHOOL FOR WEARING BLACK ARMBANDS TO PROTEST THE
GOVERNMENT'S POLICY IN VIETNAM.  THEY SOUGHT NOMINAL DAMAGES AND AN
INJUNCTION AGAINST A REGULATION THAT THE RESPONDENTS HAD PROMULGATED
BANNING THE WEARING OF ARMBANDS.  THE DISTRICT COURT DISMISSED THE
COMPLAINT ON THE GROUND THAT THE REGULATION WAS WITHIN THE BOARD'S
POWER, DESPITE THE ABSENCE OF ANY FINDING OF SUBSTANTIAL INTERFERENCE
WITH THE CONDUCT OF SCHOOL ACTIVITIES.  THE COURT OF APPEALS, SITTING
EN BANC, AFFIRMED BY AN EQUALLY DIVIDED COURT.  HELD: 

1.  IN WEARING ARMBANDS, THE PETITIONERS WERE QUIET AND PASSIVE. 
THEY WERE NOT DISRUPTIVE AND DID NOT IMPINGE UPON THE RIGHTS OF
OTHERS.  IN THESE CIRCUMSTANCES, THEIR CONDUCT WAS WITHIN THE
PROTECTION OF THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT AND THE DUE
PROCESS CLAUSE OF THE FOURTEENTH.  PP. 505-506. 

2.  FIRST AMENDMENT RIGHTS ARE AVAILABLE TO TEACHERS AND STUDENTS,
SUBJECT TO APPLICATION IN LIGHT OF THE SPECIAL CHARACTERISTICS OF THE
SCHOOL ENVIRONMENT.  PP. 506-507. 

3.  A PROHIBITION AGAINST EXPRESSION OF OPINION, WITHOUT ANY
EVIDENCE THAT THE RULE IS NECESSARY TO AVOID SUBSTANTIAL INTERFERENCE
WITH SCHOOL DISCIPLINE OR THE RIGHTS OF OTHERS, IS NOT PERMISSIBLE
UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  PP. 507-514. 

383 F.2D 988, REVERSED AND REMANDED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER JOHN F. TINKER, 15 YEARS OLD, AND PETITIONER CHIRSTOPHER
ECKHARDT, 16 YEARS OLD, ATTENDED HIGH SCHOOLS IN DES MOINES, IOWA. 
PETITIONER MARY BETH TINKER, JOHN'S SISTER, WAS A 13-YEAR-OLD STUDENT
IN JUNIOR HIGH SCHOOL. 

IN DECEMBER 1965 A GROUP OF ADULTS AND STUDENTS IN DES MOINES HELD A
MEETING AT THE ECKHARDT HOME.  THE GROUP DETERMINED TO PUBLICIZE THEIR
OBJECTIONS TO THE HOSTILITIES IN VIETNAM AND THEIR SUPPORT FOR A TRUCE
BY WEARING BLACK ARMBANDS DURING THE HOLIDAY SEASON AND BY FASTING ON
DECEMBER 16 AND NEW YEAR'S EVE.  PETITIONERS AND THEIR PARENTS HAD
PREVIOUSLY ENGAGED IN SIMILAR ACTIVITIES, AND THEY DECIDED TO
PARTICIPATE IN THE PROGRAM. 

THE PRINCIPALS OF THE DES MOINES SCHOOLS BECAME AWARE OF THE PLAN TO
WEAR ARMBANDS.  ON DECEMBER 14, 1965, THEY MET AND ADOPTED A POLICY
THAT ANY STUDENT WEARING AN ARMBAND TO SCHOOL WOULD BE ASKED TO REMOVE
IT, AND IF HE REFUSED HE WOULD BE SUSPENDED UNTIL HE RETURNED WITHOUT
THE ARMBAND.  PETITIONERS WERE AWARE OF THE REGULATION THAT THE SCHOOL
AUTHORITIES ADOPTED. 

ON DECEMBER 16, MARY BETH AND CHRISTOPHER WORE BLACK ARMBANDS TO
THEIR SCHOOLS.  JOHN TINKER WORE HIS ARMBAND THE NEXT DAY.  THEY WERE
ALL SENT HOME AND SUSPENDED FROM SCHOOL UNTIL THEY WOULD COME BACK
WITHOUT THEIR ARMBANDS.  THEY DID NOT RETURN TO SCHOOL UNTIL AFTER THE
PLANNED PERIOD FOR WEARING ARMBANDS HAD EXPIRED-- THAT IS, UNTIL AFTER
NEW YEAR'S DAY. 

THIS COMPLAINT WAS FILED IN THE UNITED STATES DISTRICT COURT BY
PETITIONERS, THROUGH THEIR FATHERS, UNDER SEC. 1983 OF TITLE 42 OF THE
UNITED STATES CODE.  IT PRAYED FOR AN INJUNCTION RESTRAINING THE
RESPONDENT SCHOOL OFFICIALS AND THE RESPONDENT MEMBERS OF THE BOARD OF
DIRECTORS OF THE SCHOOL DISTRICT FROM DISCIPLINING THE PETITIONERS, AND
IT SOUGHT NOMINAL DAMAGES.  AFTER AN EVIDENTIARY HEARING THE DISTRICT
COURT DISMISSED THE COMPLAINT.  IT UPHELD THE CONSTITUTIONALITY OF THE
SCHOOL AUTHORITIES' ACTION ON THE GROUND THAT IT WAS REASONABLE IN
ORDER TO PREVENT DISTURBANCE OF SCHOOL DISCIPLINE.  258 F.SUPP.  971
(1966).  THE COURT REFERRED TO BUT EXPRESSLY DECLINED TO FOLLOW THE
FIFTH CIRCUIT'S HOLDING IN A SIMILAR CASE THAT THE WEARING OF SYMBOLS
LIKE THE ARMBANDS CANNOT BE PROHIBITED UNLESS IT "MATERIALLY AND
SUBSTANTIALLY INTERFERES) WITH THE REQUIREMENTS OF APPROPRIATE
DISCIPLINE IN THE OPERATION OF THE SCHOOL."  BURNSIDE V. BYARS, 363
F.2D 744, 749 (1966).  /1/ 

ON APPEAL, THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT CONSIDERED
THE CASE EN BANC.  THE COURT WAS EQUALLY DIVIDED, AND THE DISTRICT
COURT'S DECISION WAS ACCORDINGLY AFFIRMED, WITHOUT OPINION.  383 F.2D
988 (1967).  WE GRANTED CERTIORARI.  390 U.S. 942 (1968). 

        I. 

THE DISTRICT COURT RECOGNIZED THAT THE WEARING OF AN ARMBAND FOR THE
PURPOSE OF EXPRESSING CERTAIN VIEWS IS THE TYPE OF SYMBOLIC ACT THAT IS
WITHIN THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT.  SEE WEST
VIRGINIA V. BARNETTE, 319 U.S. 624 (1943); STROMBERG V. CALIFORNIA, 283
U.S. 359 (1931).  CF. THORNHILL V. ALABAMA, 310 U.S. 88 (1940); EDWARDS
V. SOUTH CAROLINA, 372 U.S. 229 (1963); BROWN V. LOUISIANA, 383 U.S.
131 (1966).  AS WE SHALL DISCUSS, THE WEARING OF ARMBANDS IN THE
CIRCUMSTANCES OF THIS CASE WAS ENTIRELY DIVORCED FROM ACTUALLY OR
POTENTIALLY DISRUPTIVE CONDUCT BY THOSE PARTICIPATING IN IT.  IT WAS
CLOSELY AKIN TO "PURE SPEECH" WHICH, WE HAVE REPEATEDLY HELD, IS
ENTITLED TO COMPREHENSIVE PROTECTION UNDER THE FIRST AMENDMENT.  CF.
COX V. LOUISIANA, 379 U.S. 536, 555 (1965); ADDERLEY V. FLORIDA, 385
U.S. 39 (1966). 

FIRST AMENDMENT RIGHTS, APPLIED IN LIGHT OF THE SPECIAL
CHARACTERISTICS OF THE SCHOOL ENVIRONMENT, ARE AVAILABLE TO TEACHERS
AND STUDENTS.  IT CAN HARDLY BE ARGUED THAT EITHER STUDENTS OR TEACHERS
SHED THEIR CONSTITUTIONAL RIGHTS TO FREEDOM OF SPEECH OR EXPRESSION AT
THE SCHOOLHOUSE GATE.  THIS HAS BEEN THE UNMISTAKABLE HOLDING OF THIS
COURT FOR ALMOST 50 YEARS.  IN MEYER V. NEBRASKA, 262 U.S. 390 (1923),
AND BARTELS V. IOWA, 262 U.S. 404 (1923), THIS COURT, IN OPINIONS BY
MR. JUSTICE MCREYNOLDS, HELD THAT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT PREVENTS STATES FROM FORBIDDING THE TEACHING OF A
FOREIGN LANGUAGE TO YOUNG STUDENTS.  STATUTES TO THIS EFFECT, THE COURT
HELD, UNCONSTITUTIONALLY INTERFERE WITH THE LIBERTY OF TEACHER,
STUDENT, AND PARENT.  /2/  SEE ALSO PIERCE V. SOCIETY OF SISTERS, 268
U.S. 510 (1925); WEST VIRGINIA V. BARNETTE, 319 U.S. 624 (1943);
MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203 (1948); WIEMAN V.
UPDEGRAFF, 344 U.S. 183, 195 (1952) (CONCURRING OPINION); SWEEZY V. NEW
HAMPSHIRE, 354 U.S. 234 (1957); SHELTON V. TUCKER, 364 U.S. 479, 487
(1960); ENGEL V. VITALE, 370 U.S. 421 (1962); KEYISHIAN V. BOARD OF
REGENTS, 385 U.S. 589, 603 (1967); EPPERSON V. ARKANSAS, ANTE, P. 97
(1968). 

IN WEST VIRGINIA V. BARNETTE, SUPRA, THIS COURT HELD THAT UNDER THE
FIRST AMENDMENT, THE STUDENT IN PUBLIC SCHOOL MAY NOT BE COMPELLED TO
SALUTE THE FLAG.  SPEAKING THROUGH MR. JUSTICE JACKSON, THE COURT
SAID: 

     "THE FOURTEENTH AMENDMENT, AS NOW APPLIES TO THE STATES,

  PROTECTS THE CITIZEN AGAINST THE STATE ITSELF AND ALL OF ITS

  CREATURES-- BOARDS OF EDUCATION NOT EXCEPTED.  THESE HAVE, OF

  COURSE, IMPORTANT, DELICATE, AND HIGHLY DISCRETIONARY FUNCTIONS,

  BUT NONE THAT THEY MAY NOT PERFORM WITHIN THE LIMITS OF THE BILL

  OF RIGHTS.  THAT THEY ARE EDUCATING THE YOUNG FOR CITIZENSHIP IS

  REASON FOR SCRUPULOUS PROTECTION OF CONSTITUTIONAL FREEDOM OF THE

  INDIVIDUAL, IF WE ARE NOT TO STRANGLE THE FREE MIND AT ITS SOURCE

  AND TEACH YOUTH TO DISCOUNT IMPORTANT PRINCIPLES OF OUR

  GOVERNMENT AS MERE PLATITUDES."  319 U.S.,AT 637. 

ON THE OTHER HAND, THE COURT HAS REPEATEDLY EMPHASIZED THE NEED FOR
AFFIRMING THE COMPREHENSIVE AUTHORITY OF THE STATES AND OF SCHOOL
OFFICIALS, CONSISTENT WITH FUNDAMENTAL CONSTITUTIONAL SAFEGUARDS, TO
PRESCRIBE AND CONTROL CONDUCT IN THE SCHOOLS.  SEE EPPERSON V.
ARKANSAS, SUPRA, AT 104; MEYER V. NEBRASKA, SUPRA, AT 402.  OUR PROBLEM
LIES IN THE AREA WHERE STUDENTS IN THE EXERCISE OF FIRST AMENDMENT
RIGHTS COLLIDE WITH THE RULES OF THE SCHOOL AUTHORITIES. 

        II. 

THE PROBLEM POSED BY THE PRESENT CASE DOES NOT RELATE TO REGULATION
OF THE LENGTH OF SKIRTS OR THE TYPE OF CLOTHING, TO HAIR STYLE, OR
DEPORTMENT.  CF. FERRELL V. DALLAS INDEPENDENT SCHOOL DISTRICT, 392
F.2D 697 (1968); PUGSLEY V. SELLMEYER, 158 ARK. 247, 250 S.W. 538
(1923).  IT DOES NOT CONCERN AGGRESSIVE, DISRUPTIVE ACTION OR EVEN
GROUP DEMONSTRATIONS.  OUR PROBLEM INVOLVES DIRECT, PRIMARY FIRST
AMENDMENT RIGHTS AKIN TO "PURE SPEECH." 

THE SCHOOL OFFICIALS BANNED AND SOUGHT TO PUNISH PETITIONERS FOR A
SILENT, PASSIVE EXPRESSION OF OPINION, UNACCOMPANIED BY ANY DISORDER OR
DISTURBANCE ON THE PART OF PETITIONERS.  THERE IS HERE NO EVIDENCE
WHATEVER OF PETITIONERS' INTERFERENCE, ACTUAL OR NASCENT, WITH THE
SCHOOLS' WORK OR OF COLLISION WITH THE RIGHTS OF OTHER STUDENTS TO BE
SECURE AND TO BE LET ALONE.  ACCORDINGLY, THIS CASE DOES NOT CONCERN
SPEECH OR ACTION THAT INTRUDES UPON THE WORK OF THE SCHOOLS OR THE
RIGHTS OF OTHER STUDENTS. 

ONLY A FEW OF THE 18,000 STUDENTS IN THE SCHOOL SYSTEM WORE THE
BLACK ARMBANDS.  ONLY FIVE STUDENTS WERE SUSPENDED FOR WEARING THEM. 
THERE IS NO INDICATION THAT THE WORK OF THE SCHOOLS OR ANY CLASS WAS
DISRUPTED.  OUTSIDE THE CLASSROOMS, A FEW STUDENTS MADE HOSTILE REMARKS
TO THE CHILDREN WEARING ARMBANDS, BUT THERE WERE NO THREATS OR ACTS OF
VIOLENCE ON SCHOOL PREMISES. 

THE DISTRICT COURT CONCLUDED THAT THE ACTION OF THE SCHOOL
AUTHORITIES WAS REASONABLE BECAUSE IT WAS BASED UPON THEIR FEAR OF A
DISTURBANCE FROM THE WEARING OF THE ARMBANDS.  BUT, IN OUR SYSTEM,
UNDIFFERENTIATED FEAR OR APPREHENSION OF DISTURBANCE IS NOT ENOUGH TO
OVERCOME THE RIGHT TO FREEDOM OF EXPRESSION.  ANY DEPARTURE FROM
ABSOLUTE REGIMENTATION MAY CAUSE TROUBLE.  ANY VARIATION FROM THE
MAJORITY'S OPINION MAY INSPIRE FEAR.  ANY WORD SPOKEN, IN CLASS, IN THE
LUNCHROOM, OR ON THE CAMPUS, THAT DEVIATES FROM THE VIEWS OF ANOTHER
PERSON MAY START AN ARGUMENT OR CAUSE A DISTURBANCE.  BUT OUR
CONSTITUTION SAYS WE MUST TAKE THIS RISK, TERMINIELLO V. CHICAGO, 337
U.S. 1 (1949); AND OUR HISTORY SAYS THAT IT IS THIS SORT OF HAZARDOUS
FREEDOM-- THIS KIND OF OPENNESS-- THAT IS THE BASIS OF OUR NATIONAL
STRENGTH AND OF THE INDEPENDENCE AND VIGOR OF AMERICANS WHO GROW UP AND
LIVE IN THIS RELATIVELY PERMISSIVE, OFTEN DISPUTATIOUS SOCIETY. 

IN ORDER FOR THE STATE IN THE PERSON OF SCHOOL OFFICIALS TO JUSTIFY
PROHIBITION OF A PARTICULAR EXPRESSION OF OPINION, IT MUST BE ABLE TO
SHOW THAT ITS ACTION WAS CAUSED BY SOMETHING MORE THAN A MERE DESIRE TO
AVOID THE DISCOMFORT AND UNPLEASANTNESS THAT ALWAYS ACCOMPANY AN
UNPOPULAR VIEWPOINT.  CERTAINLY WHERE THERE IS NO FINDING AND NO
SHOWING THAT ENGAGING IN THE FORBIDDEN CONDUCT WOULD "MATERIALLY AND
SUBSTANTIALLY INTERFERE WITH THE REQUIREMENTS OF APPROPRIATE DISCIPLINE
IN THE OPERATION OF THE SCHOOL," THE PROHIBITION CANNOT BE SUSTAINED. 
BURNSIDE V. BYARS, SUPRA, AT 749. 

IN THE PRESENT CASE, THE DISTRICT COURT MADE NO SUCH FINDING, AND
OUR INDEPENDENT EXAMINATION OF THE RECORD FAILS TO YIELD EVIDENCE THAT
THE SCHOOL AUTHORITIES HAD REASON TO ANTICIPATE THAT THE WEARING OF THE
ARMBANDS WOULD SUBSTANTIALLY INTERFERE WITH THE WORK OF THE SCHOOL OR
IMPINGE UPON THE RIGHTS OF OTHER STUDENTS.  EVEN AN OFFICIAL MEMORANDUM
PREPARED AFTER THE SUSPENSION THAT LISTED THE REASONS FOR THE BAN ON
WEARING THE ARMBANDS MADE NO REFERENCE TO THE ANTICIPATION OF SUCH
DISRUPTION.  /3/ 

ON THE CONTRARY, THE ACTION OF THE SCHOOL AUTHORITIES APPEARS TO
HAVE BEEN BASED UPON AN URGENT WISH TO AVOID THE CONTROVERSY WHICH
MIGHT RESULT FROM THE EXPRESSION, EVEN BY THE SILENT SYMBOL OF
ARMBANDS, OF OPPOSITION TO THIS NATION'S PART IN THE CONFLAGRATION IN
VIETNAM.  /4/  IT IS REVEALING, IN THIS RESPECT, THAT THE MEETING AT
WHICH THE SCHOOL PRINCIPALS DECIDED TO ISSUE THE CONTESTED REGULATION
WAS CALLED IN RESPONSE TO A STUDENT'S STATEMENT TO THE JOURNALISM
TEACHER IN ONE OF THE SCHOOLS THAT HE WANTED TO WRITE AN ARTICLE ON
VIETNAM AND HAVE IT PUBLISHED IN THE SCHOOL PAPER.  (THE STUDENT WAS
DISSUADED.  /5/  ) 

IT IS ALSO RELEVANT THAT THE SCHOOL AUTHORITIES DID NOT PURPORT TO
PROHIBIT THE WEARING OF ALL SYMBOLS OF POLITICAL OR CONTROVERSIAL
SIGNIFICANCE.  THE RECORD SHOWS THAT STUDENTS IN SOME OF THE SCHOOLS
WORE BUTTONS RELATING TO NATIONAL POLITICAL CAMPAIGNS, AND SOME EVEN
WORE THE IRON CROSS, TRADITIONALLY A SYMBOL OF NAZISM.  THE ORDER
PROHIBITING THE WEARING OF ARMBANDS DID NOT EXTEND TO THESE.  INSTEAD,
A PARTICULAR SYMBOL-- BLACK ARMBANDS WORN TO EXHIBIT OPPOSITION TO THIS
NATION'S INVOLVEMENT IN VIETNAM-- WAS SINGLED OUT FOR PROHIBITION. 
CLEARLY, THE PROHIBITION OF EXPRESSION OF ONE PARTICULAR OPINION, AT
LEAST WITHOUT EVIDENCE THAT IT IS NECESSARY TO AVOID MATERIAL AND
SUBSTANTIAL INTERFERENCE WITH SCHOOLWORK OR DISCIPLINE, IS NOT
CONSTITUTIONALLY PERMISSIBLE. 

IN OUR SYSTEM, STATE-OPERATED SCHOOLS MAY NOT BE ENCLAVES OF
TOTALITARIANISM.  SCHOOL OFFICIALS DO NOT POSSESS ABSOLUTE AUTHORITY
OVER THEIR STUDENTS.  STUDENTS IN SCHOOL AS WELL AS OUT OF SCHOOL ARE
"PERSONS" UNDER OUR CONSTITUTION.  THEY ARE POSSESSED OF FUNDAMENTAL
RIGHTS WHICH THE STATE MUST RESPECT, JUST AS THEY THEMSELVES MUST
RESPECT THEIR OBLIGATIONS TO THE STATE.  IN OUR SYSTEM, STUDENTS MAY
NOT BE REGARDED AS CLOSED-CIRCUIT RECIPIENTS OF ONLY THAT WHICH THE
STATE CHOOSES TO COMMUNICATE.  THEY MAY NOT BE CONFINED TO THE
EXPRESSION OF THOSE SENTIMENTS THAT ARE OFFICIALLY APPROVED.  IN THE
ABSENCE OF A SPECIFIC SHOWING OF CONSTITUTIONALLY VALID REASONS TO
REGULATE THEIR SPEECH, STUDENTS ARE ENTITLED TO FREEDOM OF EXPRESSION
OF THEIR VIEWS.  AS JUDGE GEWIN, SPEAKING FOR THE FIFTH CIRCUIT, SAID,
SCHOOL OFFICIALS CANNOT SUPPRESS "EXPRESSIONS OF FEELINGS WITH WHICH
THEY DO NOT WISH TO CONTEND."  BURNSIDE V. BYARS, SUPRA, AT 749. 

IN MYER V. NEBRASKA, SUPRA, AT 402, MR. JUSTICE MCREYNODLS EXPRESSED
THIS NATION'S REPUDIATION OF THE PRINCIPLE THAT A STATE MIGHT SO
CONDUCT ITS SCHOOLS AS TO "FOSTER A HOMOGENEOUS PEOPLE."  HE SAID: 

"IN ORDER TO SUBMERGE THE INDIVIDUAL AND DEVELOP IDEAL CITIZENS,
SPARTA ASSEMBLED THE MALES AT SEVEN INTO BARRACKS AND INTRUSTED THEIR
SUBSEQUENT EDUCATION AND TRAINING TO OFFICIAL GUARDIANS.  ALTHOUGH SUCH
MEASURES HAVE BEEN DELIBERATELY APPROVED BY MEN OF GREAT GENIUS, THEIR
IDEAS TOUCHING THE RELATION BETWEEN INDIVIDUAL AND STATE WERE WHOLLY
DIFFERENT FROM THOSE UPON WHICH OUR INSTITUTIONS REST; AND IT HARDLY
WILL BE AFFIRMED THAT ANY LEGISLATURE COULD IMPOSE SUCH RESTRICTIONS
UPON THE PEOPLE OF A STATE WITHOUT DOING VIOLENCE TO BOTH LETTER AND
SPIRIT OF THE CONSTITUTION.  THIS PRINCIPLE HAS BEEN REPEATED BY THIS
COURT ON NUMEROUS OCCASIONS DURING THE INTERVENING YEARS.  IN KEYISHIAN
V. BOARD OF REGENTS, 385 U.S. 589, 603, MR. JUSTICE BRENNAN, SPEAKING
FOR THE COURT, SAID: 

"'THE VIGILANT PROTECTION OF CONSTITUTIONAL FREEDOMS IS NOWHERE MORE
VITAL THAN IN THE COMMUNITY OF AMERICAN SCHOOLS.'  SHELTON V. TUCKER,
(364 U.S. 479,) AT 487.  THE CLASSROOM IS PECULIARLY THE 'MARKETPLACE
OF IDEAS.'  THE NATION'S FUTURE DEPENDS UPON LEADERS TRAINED THROUGH
WIDE EXPOSURE TO THAT ROBUST EXCHANGE OF IDEAS WHICH DISCOVERS TRUST
'OUT OF A MULTITUDE OF TONGUES, (RATHER) THAN THROUGH ANY KIND OF
AUTHORITATIVE SELECTION.'"     THE PRINCIPLE OF THESE CASES IS NOT
CONFINED TO THE SUPERVISED AND ORDAINED DISCUSSION WHICH TAKES PLACE IN
THE CLASSROOM.  THE PRINCIPAL USE TO WHICH THE SCHOOLS ARE DEDICATED IS
TO ACCOMODATE STUDENTS DURING PRESCRIBED HOURS FOR THE PURPOSE OF
CERTAIN TYPES OF ACTIVITIES.  AMONG THOSE ACTIVITIES IS PERSONAL
INTERCOMMUNICATION AMONG THE STUDENTS.  /6/  THIS IS NOT ONLY AN
INEVITABLE PART OF THE PROCESS OF ATTENDING SCHOOL; IT IS ALSO AN
IMPORTANT PART OF THE EDUCATIONAL PROCESS.  A STUDENT'S RIGHTS,
THEREFORE, DO NOT EMBRACE MERELY THE CLASSROOM HOURS.  WHEN HE IS IN
THE CAFETERIA, OR ON THE PLAYING FIELD, OR ON THE CAMPUS DURING THE
AUTHORIZED HOURS, HE MAY EXPRESS HIS OPINIONS, EVEN ON CONTROVERSIAL
SUBJECTS LIKE THE CONFLICT IN VIETNAM, IF HE DOES SO WITHOUT
"MATERIALLY AND SUBSTANTIALLY INTERFERING) WITH THE REQUIREMENTS OF
APPROPRIATE DISCIPLINE IN THE OPERATION OF THE SCHOOL"  AND WITHOUT
COLLIDING WITH THE RIGHTS OF OTHERS.  BURNSIDE V. BYARS, SUPRA, AT
749.  BUT CONDUCT BY THE STUDENT, IN CLASS OR OUT OF IT, WHICH FOR ANY
REASON-- WHETHER IT STEMS FROM TIME, PLACE, OR TYPE OF BEHAVIOR--
MATERIALLY DISRUPTS CLASSWORK OR INVOLVES SUBSTANTIAL DISORDER OR
INVASION OF THE RIGHTS OF OTHERS IS, OF COURSE, NOT IMMUNIZED BY THE
CONSTITUTIONAL GUARANTEE OF FREEDOM OF SPEECH.  CF. BLACKWELL V.
ISSAQUENA COUNTY BOARD OF EDUCATION, 363 F.2D 749 (C.A. 5TH CIR.
1966). 

UNDER OUR CONSTITUTION, FREE SPEECH IS NOT A RIGHT THAT IS GIVEN
ONLY TO BE SO CIRCUMSCRIBED THAT IT EXISTS IN PRINCIPLE BUT NOT IN
FACT.  FREEDOM OF EXPRESSION WOULD NOT TRULY EXIST IF THE RIGHT COULD
BE EXERCISED ONLY IN AN AREA THAT A BENEVOLENT GOVERNMENT HAS PROVIDED
AS A SAFE HAVEN FOR CRACKPOTS.  THE CONSTITUTION SAYS THAT CONGRESS
(AND THE STATES) MAY NOT ABRIDGE THE RIGHT TO FREE SPEECH.  THIS
PROVISION MEANS WHAT IT SAYS.  WE PROPERLY READ IT TO PERMIT REASONABLE
REGULATION OF SPEECH-CONNECTED ACTIVITIES IN CAREFULLY RESTRICTED
CIRCUMSTANCES.  BUT WE DO NOT CONFINE THE PERMISSIBLE EXERCISE OF FIRST
AMENDMENT RIGHTS TO A TELEPHONE BOOTH OR THE FOUR CORNERS OF A
PAMPHLET, OR TO SUPERVISED AND ORDAINED DISCUSSION IN A SCHOOL
CLASSROOM. 

IF A REGULATION WERE ADOPTED BY SCHOOL OFFICIALS FORBIDDING
DISCUSSION OF THE VIETNAM CONFLICT, OR THE EXPRESSION BY ANY STUDENT OF
OPPOSITION TO IT ANYWHERE ON SCHOOL PROPERTY EXCEPT AS PART OF A
PRESCRIBED CLASSROOM EXERCISE, IT WOULD BE OBVIOUS THAT THE REGULATION
WOULD VIOLATE THE CONSTITUTIONAL RIGHTS OF STUDENTS, AT LEAST IF IT
COULD NOT BE JUSTIFIED BY A SHOWING THAT THE STUDENTS' ACTIVITIES WOULD
MATERIALLY AND SUBSTANTIALLY DISRUPT THE WORK AND DISCIPLINE OF THE
SCHOOL.  CF. HAMMOND V. SOUTH CAROLINA STATE COLLEGE, 272 F.SUPP.  947
(D.C.S.C. 1967) (ORDERLY PROTEST MEETING ON STATE COLLEGE CAMPUS);
DICKEY V. ALABAMA STATE BOARD OF EDUCATION, 273 F.SUPP.  613 (D.C.M.D.
ALA. 1967) (EXPULSION OF STUDENT EDITOR OF COLLEGE NEWSPAPER).  IN THE
CIRCUMSTANCES OF THE PRESENT CASE, THE PROHIBITION OF THE SILENT,
PASSIVE "WITNESS OF THE ARMBANDS," AS ONE OF THE CHILDREN CALLED IT, IS
NO LESS OFFENSIVE TO THE CONSTITUTION'S GUARANTEES. 

AS WE HAVE DISCUSSED, THE RECORD DOES NOT DEMONSTRATE ANY FACTS
WHICH MIGHT REASONABLY HAVE LED SCHOOL AUTHORITIES TO FORECAST
SUBSTANTIAL DISRUPTION OF OR MATERIAL INTERFERENCE WITH SCHOOL
ACTIVITIES, AND NO DISTURBANCES OR DISORDERS ON THE SCHOOL PREMISES IN
FACT OCCURRED.  THESE PETITIONERS MERELY WENT ABOUT THEIR ORDAINED
ROUND IN SCHOOL.  THEIR DEVIATION CONSISTED ONLY IN WEARING ON THEIR
SLEEVE A BAND OF BLACK CLOTH, NOT MORE THAN TWO INCHES WIDE.  THEY WORE
IT TO EXHIBIT THEIR DISAPPROVAL OF THE VIETNAM HOSTILITIES AND THEIR
ADVOCACY OF A TRUCE, TO MAKE THEIR VIEWS KNOWN, AND, BY THEIR EXAMPLE,
TO INFLUENCE OTHERS TO ADOPT THEM.  THEY NEITHER INTERRUPTED SCHOOL
ACTIVITIES NOR SOUGHT TO INTRUDE IN THE SCHOOL AFFAIRS OR THE LIVES OF
OTHERS.  THEY CAUSED DISCUSSION OUTSIDE OF THE CLASSROOMS, BUT NO
INTERFERENCE WITH WORK AND NO DISORDER.  IN THE CIRCUMSTANCES, OUR
CONSTITUTION DOES NOT PERMIT OFFICIALS OF THE STATE TO DENY THEIR FORM
OF EXPRESSION. 

WE EXPRESS NO OPINION AS TO THE FORM OF RELIEF WHICH SHOULD BE
GRANTED, THIS BEING A MATTER FOR THE LOWER COURTS TO DETERMINE.  WE
REVERSE AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

           REVERSED AND REMANDED. 

/1/  IN BURNSIDE, THE FIFTH CIRCUIT ORDERED THAT HIGH SCHOOL
AUTHORITIES BE ENJOINED FROM ENFORCING A REGULATION FORBIDDING STUDENTS
TO WEAR "FREEDOM BUTTONS."  IT IS INSTRUCTIVE THAT IN BLACKWELL V.
ISSAQUENA COUNTY BOARD OF EDUCATION, 363 F.2D 749 (1966), THE SAME
PANEL ON THE SAME DAY REACHED THE OPPOSITE RESULT ON DIFFERENT FACTS. 
IT DECLINED TO ENJOIN ENFORCEMENT OF SUCH A REGULATION IN ANOTHER HIGH
SCHOOL WHERE THE STUDENTS WEARING FREEDOM BUTTONS HARASSED STUDENTS WHO
DID NOT WEAR THEM AND CREATED MUCH DISTURBANCE. 

/2/  HAMILTON V. REGENTS OF UNIV.  OF CAL., 293 U.S. 245 (1934), IS
SOMETIMES CITED FOR THE BROAD PORPOSITION THAT THE STATE MAY ATTACH
CONDITIONS TO ATTENDANCE AT A STATE UNIVERSITY THAT REQUIRE INDIVIDUALS
TO VIOLATE THEIR RELIGIOUS CONVICTIONS.  THE CASE INVOLVED DISMISSAL OF
MEMBERS OF A RELIGIOUS DENOMINATION FROM A LAND GRANT COLLEGE FOR
REFUSAL TO PARTICIPATE IN MILITARY TRAINING.  NARROWLY VIEWED, THE CASE
TURNS UPON THE COURT'S CONCLUSION THAT MERELY REQUIRING A STUDENT TO
PARTICIPATE IN SCHOOL TRAINING IN MILITARY "SCIENCE" COULD NOT CONFLICT
WITH HIS CONSTITUTIONALLY PROTECTED FREEDOM OF CONSCIENCE.  THE
DECISION CANNOT BE TAKEN AS ESTABLISHING THAT THE STATE MAY IMPOSE AND
ENFORCE ANY CONDITIONS THAT IT CHOOSES UPON ATTENDANCE AT PUBLIC
INSTITUTIONS OF LEARNING, HOWEVER VIOLATIVE THEY MAY BE OF FUNDAMENTAL
CONSTITUTIONAL GUARANTEES.  SEE, E.G., WEST VIRGINIA V. BARNETTE, 319
U.S. 624 (1943); DIXON V. ALABAMA STATE BOARD OF EDUCATION, 294 F.2D
150 (C.A. 5TH CIR. 1961); KNIGHT V. STATE BOARD OF EDUCATION, 200
F.SUPP.  174 (D.C.M.D. TENN. 1961); DICKEY V. ALABAMA STATE BOARD OF
EDUCATION, 273 F.SUPP.  613 (D.C.M.D. ALA. 1967).  SEE ALSO NOTE,
UNCONSTITUTIONAL CONDITIONS, 73 HARV.L.REV.  1595 (1960); NOTE,
ACADEMIC FREEDOM, 81 HARV.L.REV.  1045 (1968). 

/3/  THE ONLY SUGGESTIONS OF FEAR OF DISORDER IN THE REPORT ARE
THESE: 

"A FORMER STUDENT OF ONE OF OUR HIGH SCHOOLS WAS KILLED IN VIET
NAM.  SOME OF HIS FRIENDS ARE STILL IN SCHOOL AND IT WAS FELT THAT IF
ANY KIND OF A DEMONSTRATION EXISTED, IT MIGHT EVOLVE INTO SOMETHING
WHICH WOULD BE DIFFICULT TO CONTROL." 

"STUDENTS AT ONE OF THE HIGH SCHOOLS WERE HEARD TO SAY THEY WOULD
WEAR ARM BANDS OF OTHER COLORS IF THE BLACK BANDS PREVAILED." 

MOREOVER, THE TESTIMONY OF SCHOOL AUTHORITIES AT TRIAL INDICATES
THAT IT WAS NOT FEAR OF DISRUPTION THAT MOTIVATED THE REGULATION
PROHIBITING THE ARMBANDS; THE REGULATION WAS DIRECTED AGAINST "THE
PRINCIPLE OF THE DEMONSTRATION" ITSELF.  SCHOOL AUTHORITIES SIMPLY FELT
THAT "THE SCHOOLS ARE NO PLACE FOR DEMONSTRATIONS," AND IF THE STUDENTS
"DIDN'T LIKE THE WAY OUR ELECTED OFFICIALS WERE HANDLING THINGS, IT
SHOULD BE HANDLED WITH THE BALLOT BOX AND NOT IN THE HALLS OF OUR
PUBLIC SCHOOLS." 

/4/  THE DISTRICT COURT FOUND THAT THE SCHOOL AUTHORITIES, IN
PROHIBITING BLACK ARMBANDS, WERE INFLUENCED BY THE FACT THAT "(THE VIET
NAM WAR AND THE INVOLVEMENT OF THE UNITED STATES THEREIN HAS BEEN THE
SUBJECT OF A MAJOR CONTROVERSY FOR SOME TIME.  WHEN THE ARM BAND
REGULATION INVOLVED HEREIN WAS PROMULGATED, DEBATE OVER THE VIET NAM
WAR HAD BECOME VEHEMENT IN MANY LOCALITIES.  A PROTEST MARCH AGAINST
THE WAR HAD BEEN RECENTLY HELD IN WASHINGTON, D.C.  A WAVE OF DRAFT
CARD BURNING INCIDENTS PROTESTING THE WAR HAD SWEPT THE COUNTRY.  AT
THAT TIME TWO HIGHLY PUBLICIZED DRAFT CARD BURNING CASES WERE PENDING
IN THIS COURT.  BOTH INDIVIDUALS SUPPORTING THE WAR AND THOSE OPPOSING
IT WERE QUITE VOCAL IN EXPRESSING THEIR VIEWS."  258 F.SUPP.,AT 972
973. 

/5/  AFTER THE PRINCIPALS' MEETING, THE DIRECTOR OF SECONDARY
EDUCATION AND THE PRINCIPAL OF THE HIGH SCHOOL INFORMED THE STUDENT
THAT THE PRINCIPALS WERE OPPOSED TO PUBLICATION OF HIS ARTICLE.  THEY
REPORTED THAT "WE FELT THAT IT WAS A VERY FRIENDLY CONVERSATION,
ALTHOUGH WE DID NOT FEEL THAT WE HAD CONVINCED THE STUDENT THAT OUR
DECISION WAS A JUST ONE." 

/6/  IN HAMMOND V. SOUTH CAROLINA STATE COLLEGE, 272 F.SUPP.  947
(D.C.S.C. 1967), DISTRICT JUDGE HEMPHILL HAD BEFORE HIM A CASE
INVOLVING A MEETING ON CAMPUS OF 300 STUDENTS TO EXPRESS THEIR VIEWS ON
SCHOOL PRACTICES.  HE POINTED OUT THAT A SCHOOL IS NOT LIKE A HOSPITAL
OR A JAIL ENCLOSURE.  CF. COX V. LOUISIANA, 379 U.S. 536 (1965);
ADDERLEY V. FLORIDA, 385 U.S. 39 (1966).  IT IS A PUBLIC PLACE, AND ITS
DEDICATION TO SPECIFIC USES DOES NOT IMPLY THAT THE CONSTITUTIONAL
RIGHTS OF PERSONS ENTITLED TO BE THERE ARE TO BE GAUGED AS IF THE
PREMISES WERE PURELY PRIVATE PROPERTY.  CF. EDWARDS V. SOUTH CAROLINA,
372 U.S. 229 (1963); BROWN V. LOUISIANA, 383 U.S. 131 (1966). 

MR. JUSTICE STEWART, CONCURRING. 

ALTHOUGH I AGREE WITH MUCH OF WHAT IS SAID IN THE COURT'S OPINION,
AND WITH ITS JUDGMENT IN THIS CASE, I CANNOT SHARE THE COURT'S
UNCRITICAL ASSUMPTION THAT, SCHOOL DISCIPLINE ASIDE, THE FIRST
AMENDMENT RIGHTS OF CHILDREN ARE CO-EXTENSIVE WITH THOSE OF ADULTS. 
INDEED, I HAD THOUGHT THE COURT DECIDED OTHERWISE JUST LAST TERM IN
GINSBERG V. NEW YORK, 390 U.S. 629.  I CONTINUE TO HOLD THE VIEW I
EXPRESSED IN THAT CASE:  "(A) STATE MAY PERMISSIBLY DETERMINE THAT, AT
LEAST IN SOME PRECISELY DELINEATED AREAS, A CHILD-- LIKE SOMEONE IN A
CAPTIVE AUDIENCE-- IS NOT POSSESSED OF THAT FULL CAPACITY FOR
INDIVIDUAL CHOICE WHICH IS THE PRESUPPOSITION OF FIRST AMENDMENT
GUARANTEES."  ID., AT 649-650 (CONCURRING IN RESULT).  CF. PRINCE V.
MASSACHUSETTS, 321 U.S. 158. 

MR. JUSTICE WHITE, CONCURRING. 

WHILE I JOIN THE COURT'S OPINION, I DEEM IT APPROPRIATE TO NOTE,
FIRST, THAT THE COURT CONTINUES TO RECOGNIZE A DISTINCTION BETWEEN
COMMUNICATING BY WORDS AND COMMUNICATING BY ACTS OR CONDUCT WHICH
SUFFICIENTLY IMPINGES ON SOME VALID STATE INTEREST; AND, SECOND, THAT I
DO NOT SUBSCRIBE TO EVERYTHING THE COURT OF APPEALS SAID ABOUT FREE
SPEECH IN ITS OPINION IN BURNSIDE V. BYARS, 363 F.2D 744, 748 (C.A. 5TH
CIR. 1966), A CASE RELIED UPON BY THE COURT IN THE MATTER NOW BEFORE
US. 

MR. JUSTICE BLACK, DISSENTING. 

THE COURT'S HOLDING IN THIS CASE USHERS IN WHAT I DEEM TO BE AN
ENTIRELY NEW ERA IN WHICH THE POWER TO CONTROL PUPILS BY THE ELECTED
"OFFICIALS OF STATE SUPPORTED PUBLIC SCHOOLS . . . " IN THE UNITED
STATES IS IN ULTIMATE EFFECT TRANSFERRED TO THE SUPREME COURT.  /1/
THE COURT BROUGHT THIS PARTICULAR CASE HERE ON A PETITION FOR
CERTIORARI URGING THAT THE FIRST AND FOURTEENTH AMENDMENTS PROTECT THE
RIGHT OF SCHOOL PUPILS TO EXPRESS THEIR POLITICAL VIEWS ALL THE WAY
"FROM KINDERGARTEN THROUGH HIGH SCHOOL."  HERE THE CONSTITUTIONAL RIGHT
TO "POLITICAL EXPRESSION" ASSERTED WAS A RIGHT TO WEAR BLACK ARMBANDS
DURING SCHOOL HOURS AND AT CLASSES IN ORDER TO DEMONSTRATE TO THE OTHER
STUDENTS THAT THE PETITIONERS WERE MOURNING BECAUSE OF THE DEATH OF
UNITED STATES SOLDIERS IN VIETNAM AND TO PORTEST THAT WAR WHICH THEY
WERE AGAINST.  ORDERED TO REFRAIN FROM WEARING THE ARMBANDS IN SCHOOL
BY THE ELECTED SCHOOL OFFICIALS AND THE TEACHERS VESTED WITH STATE
AUTHORITY TO DO SO, APPARENTLY ONLY SEVEN OUT OF THE SCHOOL SYSTEM'S
18,000 PUPILS DELIBERATELY REFUSED TO OBEY THE ORDER.  ONE DEFYING
PUPIL WAS PAUL TINKER, 8 YEARS OLD, WHO WAS IN THE SECOND GRADE;
ANOTHER, HOPE TINKER, WAS 11 YEARS OLD AND IN THE FIFTH GRADE; A THIRD
MEMBER OF THE TINKER FAMILY WAS 13, IN THE EIGHTH GRADE; AND A FOURTH
MEMBER OF THE SAME FAMILY WAS JOHN TINKER, 15 YEARS OLD, AN 11TH GRADE
HIGH SCHOOL PUPIL.  THEIR FATHER, A METHODIST MINISTER WITHOUT A
CHURCH, IS PAID A SALARY BY THE AMERICAN FRIENDS SERVICE COMMITTEE. 
ANOTHER STUDENT WHO DEFIED THE SCHOOL ORDER AND INSISTED ON WEARING AN
ARMBAND IN SCHOOL WAS CHRISTOPHER ECKHARDT, AN 11TH GRADE PUPIL AND A
PETITIONER IN THIS CASE.  HIS MOTHER IS AN OFFICIAL IN THE WOMEN'S
INTERNATIONAL LEAGUE FOR PEACE AND FREEDOM. 

AS I READ THE COURT'S OPINION IT RELIES UPON THE FOLLOWING GROUNDS
FOR HOLDING UNCONSTITUTIONAL THE JUDGMENT OF THE DES MOINES SCHOOL
OFFICIALS AND THE TWO COURTS BELOW.  FIRST, THE COURT CONCLUDES THAT
THE WEARING OF ARMBANDS IS "SYMBOLIC SPEECH" WHICH IS "AKIN TO 'PURE
SPEECH'" AND THEREFORE PROTECTED BY THE FIRST AND FOURTEENTH
AMENDMENTS.  SECONDLY, THE COURT DECIDES THAT THE PUBLIC SCHOOLS ARE AN
APPROPRIATE PLACE TO EXERCISE "SYMBOLIC SPEECH" AS LONG AS NORMAL
SCHOOL FUNCTIONS ARE NOT "UNREASONABLY" DISRUPTED.  FINALLY, THE COURT
ARROGATES TO ITSELF, RATHER THAN TO THE STATE'S ELECTED OFFICIALS
CHARGED WITH RUNNING THE SCHOOLS, THE DECISION AS TO WHICH SCHOOL
DISCIPLINARY REGULATIONS ARE "REASONABLE." 

ASSUMING THAT THE COURT IS CORRECT IN HOLDING THAT THE CONDUCT OF
WEARING ARMBANDS FOR THE PURPOSE OF CONVEYING POLITICAL IDEAS IS
PROTECTED BY THE FIRST AMENDMENT, CF., E.G., GIBONEY V. EMPIRE STORAGE
& ICE CO., 336 U.S. 490 (1949), THE CRUCIAL REMAINING QUESTIONS ARE
WHETHER STUDENTS AND TEACHERS MAY USE THE SCHOOLS AT THEIR WHIM AS A
PLATFORM FOR THE EXERCISE OF FREE SPEECH-- "SYMBOLIC" OR "PURE"-- AND
WHETHER THE COURTS WILL ALLOCATE TO THEMSELVES THE FUNCTION OF DECIDING
HOW THE PUPILS' SCHOOL DAY WILL BE SPENT.  WHILE I HAVE ALWAYS BELIEVED
THAT UNDER THE FIRST AND FOURTEENTH AMENDMENTS NEITHER THE STATE NOR
THE FEDERAL GOVERNMENT HAS ANY AUTHORITY TO REGULATE OR CENSOR THE
CONTENT OF SPEECH, I HAVE NEVER BELIEVED THAT ANY PERSON HAS A RIGHT TO
GIVE SPEECHES OR ENGAGE IN DEMONSTRATIONS WHERE HE PLEASES AND WHEN HE
PLEASES.  THIS COURT HAS ALREADY REJECTED SUCH A NOTION.  IN COX V.
LOUISIANA, 379 U.S. 536, 554 (1965), FOR EXAMPLE, THE COURT CLEARLY
STATED THAT THE RIGHTS OF FREE SPEECH AND ASSEMBLY "DO NOT MEAN THAT
EVERYONE WITH OPINIONS OR BELIEFS TO EXPRESS MAY ADDRESS A GROUP AT ANY
PUBLIC PLACE AND AT ANY TIME."     WHILE THE RECORD DOES NOT SHOW THAT
ANY OF THESE ARMBAND STUDENTS SHOUTED, USED PROFANE LANGUAGE, OR WERE
VIOLENT IN ANY MANNER, DETAILED TESTIMONY BY SOME OF THEM SHOWS THEIR
ARMBANDS CAUSED COMMENTS, WARNINGS, BY OTHER STUDENTS, THE POKING OF
FUN AT THEM, AND A WARNING BY AN OLDER FOOTBALL PLAYER THAT OTHER,
NONPROTESTING STUDENTS HAD BETTER LET THEM ALONE.  THERE IS ALSO
EVIDENCE THAT A TEACHER OF MATHEMATICS HAD HIS LESSON PREIOD
PRACTICALLY "WRECKED" CHIEFLY BY DISPUTES WITH MARY BETH TINKER, WHO
WORE HER ARMBAND FOR HER "DEMONSTRATION."  EVEN A CASUAL READING OF THE
RECORD SHOWS THAT THIS ARMBAND DID DIVERT STUDENTS' MINDS FROM THEIR
REGULAR LESSONS, AND THAT TALK, COMMENTS, ETC., MADE JOHN TINKER "SELF
CONSCIOUS" IN ATTENDING SCHOOL WITH HIS ARMBAND.  WHILE THE ABSENCE OF
OBSCENE REMARKS OR BOISTEROUS AND LOUD DISORDER PERHAPS JUSTIFIES THE
COURT'S STATEMENT THAT THE FEW ARMBAND STUDENTS DID NOT ACTUALLY
"DISRUPT" THE CLASSWORK, I THINK THE RECORD OVERWHELMINGLY SHOWS THAT
THE ARMBANDS DID EXACTLY WHAT THE ELECTED SCHOOL OFFICIALS AND
PRINCIPALS FORESAW THEY WOULD, THAT IS, TOOK THE STUDENTS' MINDS OFF
THEIR CLASSWORK AND DIVERTED THEM TO THOUGHTS ABOUT THE HIGHLY
EMOTIONAL SUBJECT OF THE VIETNAM WAR.  AND I REPEAT THAT IF THE TIME
HAS COME WHEN PUPILS OF STATE-SUPPORTED SCHOOLS, KINDERGARTENS, GRAMMAR
SCHOOLS, OR HIGH SCHOOLS, CAN DEFY AND FLOUT ORDERS OF SCHOOL OFFICIALS
TO KEEP THEIR MINDS ON THEIR OWN SCHOOLWORK, IT IS THE BEGINNING OF A
NEW REVOLUTIONARY ERA OF PERMISSIVENESS IN THIS COUNTRY FOSTERED BY THE
JUDICIARY.  THE NEXT LOGICAL STEP, IT APPEARS TO ME, WOULD BE TO HOLD
UNCONSTITUTIONAL LAWS THAT BAR PUPILS UNDER 21 OR 18 FROM VOTING, OR
FROM BEING ELECTED MEMBERS OF THE BOARDS OF EDUCATION.  /2/ 

THE UNITED STATES DISTRICT COURT REFUSED TO HOLD THAT THE STATE
SCHOOL ORDER VIOLATED THE FIRST AND FOURTEENTH AMENDMENTS.  258
F.SUPP.  971.  HOLDING THAT THE PROTEST WAS AKIN TO SPEECH, WHICH IS
PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS, THAT COURT HELD THAT
THE SCHOOL ORDER WAS "REASONABLE" AND HENCE CONSTITUTIONAL.  THERE WAS
AT ONE TIME A LINE OF CASES HOLDING "REASONABLENESS" AS THE COURT SAW
IT TO BE THE TEST OF A "DUE PROCESS" VIOLATION.  TWO CASES UPON WHICH
THE COURT TODAY HEAVILY RELIES FOR STRIKING DOWN THIS SCHOOL ORDER USED
THIS TEST OF REASONABLENESS, MEYER V. NEBRASKA, 262 U.S. 390 (1923),
AND BARTELS V. IOWA, 262 U.S. 404 (1923).  THE OPINIONS IN BOTH CASES
WERE WRITTEN BY MR. JUSTICE MCREYNOLDS; MR. JUSTICE HOLMES, WHO OPPOSED
THIS REASONABLENESS TEST, DISSENTED FROM THE HOLDINGS AS DID MR.
JUSTICE SUTHERLAND.  THIS CONSTITUTIONAL TEST OF REASONABLENESS
PREVAILED IN THIS COURT FOR A SEASON.  IT WAS THIS TEST THAT BROUGHT ON
PRESIDENT FRANKLIN ROOSEVELT'S WELL-KNOWN COURT FIGHT.  HIS PROPOSAL
LEGISLATION DID NOT PASS, BUT THE FIGHT LEFT THE "REASONABLENESS"
CONSTITUTIONAL TEST DEAD ON THE BATTLEFIELD, SO MUCH SO THAT THIS COURT
IN FERGUSON V. SKRUPA, 372 U.S. 726, 729, 730, AFTER A THOROUGH REVIEW
OF THE OLD CASES, WAS ABLE TO CONCLUDE IN 1963: 

"THERE WAS A TIME WHEN THE DUE PROCESS CLAUSE WAS USED BY THIS COURT
TO STRIKE DOWN LAWS WHICH WERE THOUGHT UNREASONABLE, THAT IS, UNWISE OR
INCOMPATIBLE WITH SOME PARTICULAR ECONOMIC OR SOCIAL PHILOSOPHY. 

        *   *          *          * 

     "THE DOCTRINE THAT PREVAILED IN LOCHNER, COPPAGE, ADKINS,

  BURNS, AND LIKE CASES-- THAT DUE PROCESS AUTHORIZES COURTS TO

  HOLD LAWS UNCONSTITUTIONAL WHEN THEY BELIEVE THE LEGISLATURE HAS

  ACTED UNWISELY-- HAS LONG SINCE BEEN DISCARDED." 

THE FERGUSON CASE TOTALLY REPUDIATED THE OLD REASONABLENESS-DUE PROCESS
TEST, THE DOCTRINE THAT JUDGES HAVE THE POWER TO HOLD LAWS
UNCONSTITUTIONAL UPON THE BELIEF OF JUDGES THAT THEY "SHOCK THE
CONSCIENCE" OR THAT THEY ARE "UNREASONABLE," "ARBITRARY," "IRRATIONAL,"
"CONTRARY TO FUNDAMENTAL 'DECENCY,'" OR SOME OTHER SUCH FLEXIBLE TERM
WITHOUT PRECISE BOUNDARIES.  I HAVE MANY TIMES EXPRESSED MY OPPOSITION
TO THAT CONCEPT ON THE GROUND THAT IT GIVES JUDGES POWER TO STRIKE DOWN
ANY LAW THEY DO NOT LIKE.  IF THE MAJORITY OF THE COURT TODAY, BY
AGREEING TO THE OPINION OF MY BROTHER FORTAS, IS RESURRECTING THAT OLD
REASONABLENESS-DUE PROCESS TEST, I THINK THE CONSTITUTIONAL CHANGE
SHOULD BE PLAINLY, UNEQUIVOCALLY, AND FORTHRIGHTLY STATED FOR THE
BENEFIT OF THE BENCH AND BAR.  IT WILL BE A SAD DAY FOR THE COUNTRY, I
BELIEVE, WHEN THE PRESENT-DAY COURT RETURNS TO THE MCREYNOLDS DUE
PROCESS CONCEPT.  OTHER CASES CITED BY THE COURT DO NOT, AS IMPLIED,
FOLLOW THE MCREYNOLDS REASONABLENESS DOCTRINE.  WEST VIRGINIA V.
BARNETTE, 319 U.S. 624, CLEARLY REJECTING THE "REASONABLENESS" TEST,
HELD THAT THE FOURTEENTH AMENDMENT MADE THE FIRST APPLICABLE TO THE
STATES, AND THAT THE TWO FORBADE A STATE TO COMPEL LITTLE
SCHOOLCHILDREN TO SALUTE THE UNITED STATES FLAG WHEN THEY HAD RELIGIOUS
SCRUPLES AGAINST DOING SO.  /3/  NEITHER THORNHILL V. ALABAMA, 310 U.S.
88; STROMBERG V. CALIFORNIA, 283 U.S. 359; EDWARDS V. SOUTH CAROLINA,
372 U.S. 229; NOR BROWN V. LOUISIANA, 383 U.S. 131, RELATED TO
SCHOOLCHILDREN AT ALL, AND NONE OF THESE CASES EMBRACED MR. JUSTICE
MCREYNOLDS' REASONABLENESS TEST; AND THORNHILL, EDWARDS, AND BROWN
RELIED ON THE VAGUENESS OF STATE STATUTES UNDER SCRUTINY TO HOLD THEM
UNCONSTITUTIONAL.  COX V. LOUISIANA, 379 U.S. 536, 55, AND ADDERLEY V.
FLORIDA, 385 U.S. 39, CITED BY THE COURT AS A "COMPARE," INDICATING, I
SUPPOSE, THAT THESE TWO CASES ARE NO LONGER THE LAW, WERE NOT RESTED TO
THE SLIGHTEST EXTENT ON THE MEYER AND BARTELS "REASONABLENESS-DUE
PROCESS-MCREYNOLDS"  CONSTITUTIONAL TEST. 

I DENY, THEREFORE, THAT IT HAS BEEN THE RUNMISTAKABLE HOLDING OF
THIS COURT FOR ALMOST 50 YEARS" THAT "STUDENTS" AND "TEACHERS" TAKE
WITH THEM INTO THE "SCHOOLHOUSE GATE" CONSTITUTIONAL RIGHTS TO "FREEDOM
OF SPEECH OR EXPRESSION."  EVEN MEYER DID NOT HOLD THAT.  IT MAKES NO
REFERENCE TO "SYMBOLIC SPEECH" AT ALL; WHAT IT DID WAS TO STRIKE DOWN
AS "UNREASONABLE" AND THEREFORE UNCONSTITUTIONAL A NEBRASKA LAW BARRING
THE TEACHING OF THE GERMAN LANGUAGE BEFORE THE CHILDREN REACHED THE
EIGHTH GRADE.  ONE CAN WELL AGREE WITH MR. JUSTICE HOLMES AND MR.
JUSTICE SUTHERLAND, AS I DO, THAT SUCH A LAW WAS NO MORE UNREASONABLE
THAN IT WOULD BE TO BAR THE TEACHING OF LATIN AND GREEK TO PUPILS WHO
HAVE NOT REACHED THE EIGHTH GRADE.  IN FACT, I THINK THE MAJORITY'S
REASON FOR INVALIDATING THE NEBRASKA LAW WAS THAT IT DID NOT LIKE IT OR
IN LEGAL JARGON THAT IT "SHOCKED THE COURT'S CONSCIENCE,"  "OFFENDED
ITS SENSE OF JUSTICE," OR WAS "CONTRARY TO FUNDAMENTAL CONCEPTS OF THE
ENGLISH-SPEAKING WORLD," AS THE COURT HAS SOMETIMES SAID.  SEE, E.G.,
ROCHIN V. CALIFORNIA, 342 U.S. 165, AND IRVINE V. CALIFORNIA, 347 U.S.
128.  THE TRUTH IS THAT A TEACHER OF KINDERGARTEN, GRAMMAR SCHOOL, OR
HIGH SCHOOL PUPILS NO MORE CARRIES INTO A SCHOOL WITH HIM A COMPLETE
RIGHT TO FREEDOM OF SPEECH AND EXPRESSION THAN AN ANTI-CATHOLIC OR ANTI
SEMITE CARRIES WITH HIM A COMPLETE FREEDOM OF SPEECH AND RELIGION INTO
A CATHOLIC CHURCH OR JEWISH SYNAGOGUE.  NOR DOES A PERSON CARRY WITH
HIM INTO THE UNITED STATES SENATE OR HOUSE, OR INTO THE SUPREME COURT,
OR ANY OTHER COURT, A COMPLETE CONSTITUTIONAL RIGHT TO GO INTO THOSE
PLACES CONTRARY TO THEIR RULES AND SPEAK HIS MIND ON ANY SUBJECT HE
PLEASES.  IT IS A MYTH TO SAY THAT ANY PERSON HAS A CONSTITUTIONAL
RIGHT TO SAY WHAT HE PLEASES, WHERE HE PLEASES, AND WHEN HE PLEASES. 
OUR COURT HAS DECIDED PRECISELY THE OPPOSITE.  SEE, E.G., COX V.
LOUISIANA, 379 U.S. 536, 555; ADDERLEY V. FLORIDA, 385 U.S. 39. 

IN MY VIEW, TEACHERS IN STATE-CONTROLLED PUBLIC SCHOOLS ARE HIRED TO
TEACH THERE.  ALTHOUGH MR. JUSTICE MCREYNOLDS MAY HAVE INTIMATED TO THE
CONTRARY IN MEYER V. NEBRASKA, SUPRA, CERTAINLY A TEACHER IS NOT PAID
TO GO INTO SCHOOL AND TEACH SUBJECTS THE STATE DOES NOT HIRE HIM TO
TEACH AS A PART OF ITS SELECTED CURRICULUM.  NOR ARE PUBLIC SCHOOL
STUDENTS SENT TO THE SCHOOLS AT PUBLIC EXPENSE TO BROADCAST POLITICAL
OR ANY OTHER VIEWS TO EDUCATE AND INFORM THE PUBLIC.  THE ORIGINAL IDEA
OF SCHOOLS, WHICH I DO NOT BELIEVE IS YET ABANDONED AS WORTHLESS OR OUT
OF DATE, WAS THAT CHILDREN HAD NOT YET REACHED THE POINT OF EXPERIENCE
AND WISDOM WHICH ENABLED THEM TO TEACH ALL OF THEIR ELDERS.  IT MAY BE
THAT THE NATION HAS OUTWORN THE OLD-FASHIONED SLOGAN THAT "CHILDREN ARE
TO BE SEEN NOT HEARD," BUT ONE MAY, I HOPE, BE PERMITTED TO HARBOR THE
THOUGHT THAT TAXPAYERS SEND CHILDREN TO SCHOOL ON THE PREMISE THAT AT
THEIR AGE THEY NEED TO LEARN, NOT TEACH. 

THE TRUE PRINCIPLES ON THIS WHOLE SUBJECT WERE IN MY JUDGMENT SPOKEN
BY MR. JUSTICE MCKENNA FOR THE COURT IN WAUGH V. MISSISSIPPI UNIVERSITY
IN 237 U.S. 589, 596-597.  THE STATE HAD THERE PASSED A LAW BARRING
STUDENTS FROM PEACEABLY ASSEMBLING IN GREEK LETTER FRATERNITIES AND
PROVIDING THAT STUDENTS WHO JOINED THEM COULD BE EXPELLED FROM SCHOOL. 
THIS LAW WOULD APPEAR ON THE SURFACE TO RUN AFOUL OF THE FIRST
AMENDMENT'S FREEDOM OF ASSEMBLY CLAUSE.  THE LAW WAS ATTACKED AS
VIOLATIVE OF DUE PROCESS AND OF THE PRIVILEGES AND IMMUNITIES CLAUSE
AND AS A DEPRIVATION OF PROPERTY AND OF LIBERTY, UNDER THE FOURTEENTH
AMENDMENT.  IT WAS ARGUED THAT THE FRATERNITY MADE ITS MEMBERS MORE
MORAL, TAUGHT DISCIPLINE, AND INSPIRED ITS MEMBERS TO STUDY HARDER AND
TO OBEY BETTER THE RULES OF DISCIPLINE AND ORDER.  THIS COURT REJECTED
ALL THE "FERVID" PLEAS OF THE FRATERNITIES'  ADVOCATES AND DECIDED
UNANIMOUSLY AGAINST THESE FOURTEENTH AMENDMENT ARGUMENTS.  THE COURT IN
ITS NEXT TO THE LAST PARAGRAPH MADE THIS STATEMENT WHICH HAS COMPLETE
RELEVANCE FOR US TODAY: 

     "IT IS SAID THAT THE FRATERNITY TO WHICH COMPLAINANT BELONGS
IS

A MORAL AND OF ITSELF A DISCIPLINARY FORCE.  THIS NEED NOT BE

  DENIED.  BUT WHETHER SUCH MEMBERSHIP MAKES AGAINST DISCIPLINE WAS

  FOR THE STATE OF MISSISSIPPI TO DETERMINE.  IT IS TO BE

  REMEMBERED THAT THE UNIVERSITY WAS ESTABLISHED BY THE STATE AND

  IS UNDER THE CONTROL OF THE STATE, AND THE ENACTMENT OF THE

  STATUTE MAY HAVE BEEN INDUCED BY THE OPINION THAT MEMBERSHIP IN

  THE PROHIBITED SOCIETIES DIVIDED THE ATTENTION OF THE STUDENTS

  AND DISTRACTED FROM THAT SINGLENESS OF PURPOSE WHICH THE STATE

  DESIRED TO EXIST IN ITS PUBLIC EDUCATIONAL INSTITUTIONS.  IT IS

  NOT FOR US TO ENTERTAIN CONJECTURES IN OPPOSITION TO THE VIEWS OF

  THE STATE AND ANNUL ITS REGULATIONS UPON DISPUTABLE

CONSIDERATIONS OF THEIR WISDOM OR NECESSITY." 

IT WAS ON THE FOREGOING ARGUMENT THAT THIS COURT SUSTAINED THE POWER
OF MISSISSIPPI TO CURTAIL THE FIRST AMENDMENT'S RIGHT OF PEACEABLE
ASSEMBLY.  AND THE SAME REASONS ARE EQUALLY APPLICABLE TO CURTAILING IN
THE STATES' PUBLIC SCHOOLS THE RIGHT TO COMPLETE FREEDOM OF
EXPRESSION.  IOWA'S PUBLIC SCHOOLS, LIKE MISSISSIPPI'S UNIVERSITY, ARE
OPERATED TO GIVE STUDENTS AN OPPORTUNITY TO LEARN, NOT TO TALK POLITICS
BY ACTUAL SPEECH, OR BY "SYMBOLIC" SPEECH.  AND, AS I HAVE POINTED OUT
BEFORE, THE RECORD AMPLY SHOWS THAT PUBLIC PROTEST IN THE SCHOOL
CLASSES AGAINST THE VIETNAM WAR "DISTRACTED FROM THAT SINGLENESS OF
PURPOSE WHICH THE STATE (HERE IOWA) DESIRED TO EXIST IN ITS PUBLIC
EDUCATIONAL INSTITUTIONS."  HERE THE COURT SHOULD ACCORD IOWA
EDUCATIONAL INSTITUTIONS THE SAME RIGHT TO DETERMINE FOR THEMSELVES TO
WHAT EXTENT FREE EXPRESSION SHOULD BE ALLOWED IN ITS SCHOOLS AS IT
ACCORDED MISSISSIPPI WITH REFERENCE TO FREEDOM OF ASSEMBLY.  BUT EVEN
IF THE RECORD WERE SILENT AS TO PROTESTS AGAINST THE VIETNAM WAR
DISTRACTING STUDENTS FROM THEIR ASSIGNED CLASS WORK, MEMBERS OF THIS
COURT, LIKE ALL OTHER CITIZENS, KNOW, WITHOUT BEING TOLD, THAT THE
DISPUTES OVER THE WISDOM OF THE VIETNAM WAR HAVE DISRUPTED AND DIVIDED
THIS COUNTRY AS FEW OTHER ISSUES EVER HAVE.  OF COURSE STUDENTS, LIKE
OTHER PEOPLE, CANNOT CONCENTRATE ON LESSER ISSUES WHEN BLACK ARMBANDS
ARE BEING OSTENTATIOUSLY DISPLAYED IN THEIR PRESENCE TO CALL ATTENTION
TO THE WOUNDED AND DEAD OF THE WAR, SOME OF THE WOUNDED AND THE DEAD
BEING THEIR FRIENDS AND NEIGHBORS.  IT WAS, OF COURSE, TO DISTRACT THE
ATTENTION OF OTHER STUDENTS THAT SOME STUDENTS INSISTED UP TO THE VERY
POINT OF THEIR OWN SUSPENSION FROM SCHOOL THAT THEY WERE DETERMINED TO
SIT IN SCHOOL WITH THEIR SYMBOLIC ARMBANDS. 

CHANGE HAS BEEN SAID TO BE TRULY THE LAW OF LIFE BUT SOMETIMES THE
OLD AND THE TRIED AND TRUE ARE WORTH HOLDING.  THE SCHOOLS OF THIS
NATION HAVE UNDOUBTEDLY CONTRIBUTED TO GIVING US TRANQUILITY AND TO
MAKING US A MORE LAW-ABIDING PEOPLE.  UNCONTROLLED AND UNCONTROLLABLE
LIBERTY IS AN ENEMY TO DOMESTIC PEACE.  WE CANNOT CLOSE OUR EYES TO THE
FACT THAT SOME OF THE COUNTRY'S GREATEST PROBLEMS ARE CRIMES COMMITTED
BY THE YOUTH, TOO MANY OF SCHOOL AGE.  SCHOOL DISCIPLINE, LIKE PARENTAL
DISCIPLINE, IS AN INTEGRAL AND IMPORTANT PART OF TRAINING OUR CHILDREN
TO BE GOOD CITIZENS-- TO BE BETTER CITIZENS.  HERE A VERY SMALL NUMBER
OF STUDENTS HAVE CRISPLY AND SUMMARILY REFUSED TO OBEY A SCHOOL ORDER
DESIGNED TO GIVE PUPILS WHO WANT TO LEARN THE OPPORTUNITY TO DO SO.
ONE DOES NOT NEED TO BE A PROPHET OR THE SON OF A PROPHET TO KNOW THAT
AFTER THE COURT'S HOLDING TODAY SOME STUDENTS IN IOWA SCHOOLS AND
INDEED IN ALL SCHOOLS WILL BE READY, ABLE, AND WILLING TO DEFY THEIR
TEACHERS ON PRACTICALLY ALL ORDERS.  THIS IS THE MOE UNFORTUNATE FOR
THE SCHOOLS SINCE GROUPS OF STUDENTS ALL OVER THE LAND ARE ALREADY
RUNNING LOSSE, CONDUCTING BREAK-INS, SIT-INS, LIE-INS, AND SMASH-INS. 
MANY OF THESE STUDENT GROUPS, AS IS ALL TOO FAMILIAR TO ALL WHO READ
THE NEWSPAPERS AND WATCH THE TELEVISION NEWS PROGRAMS, HAVE ALREADY
ENGAGED IN RIOTING, PROPERTY SEIZURES, AND DESTRUCTION.  THEY HAVE
PICKETED SCHOOLS TO FORCE STUDENTS NOT TO CROSS THEIR PICKET LINES AND
HAVE TOO OFTEN VIOLENTLY ATTACKED EARNEST BUT FRIGHTENED STUDENTS WHO
WANTED AN EDUCATION THAT THE PICKETS DID NOT WANT THEM TO GET. 
STUDENTS ENGAGED IN SUCH ACTIVITIES ARE APPARENTLY CONFIDENT THAT THEY
KNOW FAR MORE ABOUT HOW TO OPERATE PUBLIC SCHOOL SYSTEMS THAN DO THEIR
PARENTS, TEACHERS, AND ELECTED SCHOOL OFFICIALS.  IT IS NO ANSWER TO
SAY THAT THE PARTICULAR STUDENTS HERE HAVE NOT YET REACHED SUCH HIGH
POINTS IN THEIR DEMANDS TO ATTEND CLASSES IN ORDER TO EXERCISE THEIR
POLITICAL PRESSURES.  TURNED LOOSE WITH LAWSUITS FOR DAMAGES AND
INJUNCTIONS AGAINST THEIR TEACHERS AS THEY ARE HERE, IT IS NOTHING BUT
WISHFUL THINKING TO IMAGINE THAT YOUNG, IMMATURE STUDENTS WILL NOT SOON
BELIEVE IT IS THEIR RIGHT TO CONTROL THE SCHOOLS RATHER THAN THE RIGHT
OF THE STATES THAT COLLECT THE TAXES TO HIRE THE TEACHERS FOR THE
BENEFIT OF THE PUPILS.  THIS CASE, THEREFORE, WHOLLY WITHOUT
CONSTITUTIONAL REASONS IN MY JUDGMENT, SUBJECTS ALL THE PUBLIC SCHOOLS
IN THE COUNTRY TO THE WHIMS AND CAPRICES OF THEIR LOUDEST-MOUTHED, BUT
MAYBE NOT THEIR BRIGHTEST, STUDENTS.  I, FOR ONE, AM NOT FULLY
PERSUADED THAT SCHOOL PUPILS ARE WISE ENOUGH, EVEN WITH THIS COURT'S
EXPERT HELP FROM WASHINGTON, TO RUN THE 23,390 PUBLIC SCHOOL SYSTEMS
/4/  IN OUR 50 STATES.  I WISH, THEREFORE, WHOLLY TO DISCLAIM ANY
PURPOSE ON MY PART TO HOLD THAT THE FEDERAL CONSTITUTION COMPELS THE
TEACHERS, PARENTS, AND ELECTED SCHOOL OFFICIALS TO SURRENDER CONTROL OF
THE AMERICAN PUBLIC SCHOOL SYSTEM TO PUBLIC SCHOOL STUDENTS.  I
DISSENT. 

/1/  THE PETITION FOR CERTIORARI HERE PRESENTED THIS SINGLE
QUESTION: 

"WHETHER THE FIRST AND FOURTEENTH AMENDMENTS PERMIT OFFICIALS OF
STATE SUPPORTED PUBLIC SCHOOLS TO PROHIBIT STUDENTS FROM WEARING
SYMBOLS OF POLITICAL VIEWS WITHIN SCHOOL PREMISES WHERE THE SYMBOLS ARE
NOT DISRUPTIVE OF SCHOOL DISCIPLINE OR DECORUM." 

/2/  THE FOLLOWING ASSOCIATED PRESS ARTICLE APPEARED IN THE
WASHINGTON EVENING STAR, JANUARY 11, 1969, P. A-2, COL. 1: 

"BELLINGHAM, MASS. (AP)-- TODD R. HENNESSY, 16, HAS FILED NOMINATING
PAPERS TO RUN FOR TOWN PARK COMMISSIONER IN THE MARCH ELECTION. 

"'I CAN SEE NOTHING ILLEGAL IN THE YOUTH'S SEEKING THE ELECTIVE
OFFICE,' SAID LEE AMBLER, THE TOWN COUNSEL.  'BUT I CAN'T OVERLOOK THE
POSSIBILITY THAT IF HE IS ELECTED ANY LEGAL CONTRACT ENTERED INTO BY
THE PARK COMMISSIONER WOULD BE VOID BECAUSE HE IS A JUVENILE.' 

"TODD IS A JUNIOR IN MOUNT ST. CHARLES ACADEMY, WHERE HE HAS A TOP
SCHOLASTIC RECORD." 

/3/  IN CANTWELL V. CONNECTICUT, 310 U.S. 296, 303-304 (1940), THIS
COURT SAID: 

"THE FIRST AMENDMENT DECLARES THAT CONGRESS SHALL MAKE NO LAW
RESPECTING AN ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE
EXERCISE THEREOF.  THE FOURTEENTH AMENDMENT HAS RENDERED THE
LEGISLATURES OF THE STATES AS INCOMPETENT AS CONGRESS TO ENACT SUCH
LAWS.  THE CONSTITUTIONAL INHIBITION OF LEGISLATION ON THE SUBJECT OF
RELIGION HAS A DOUBLE ASPECT.  ON THE ONE HAND, IT FORESTALLS
COMPULSION BY LAW OF THE ACCEPTANCE OF ANY CREED OR THE PRACTICE OF ANY
FORM OF WORSHIP.  FREEDOM OF CONSCIENCE AND FREEDOM TO ADHERE TO SUCH
RELIGIOUS ORGANIZATION OR FORM OF WORSHIP AS THE INDIVIDUAL MAY CHOOSE
CANNOT BE RESTRICTED BY LAW.  ON THE OTHER HAND, IT SAFEGUARDS THE FREE
EXERCISE OF THE CHOSEN FORM OF RELIGION.  THUS THE AMENDMENT EMBRACES
TWO CONCEPTS,-- FREEDOM TO BELIEVE AND FREEDOM TO ACT.  THE FIRST IS
ABSOLUTE BUT, IN THE NATURE OF THINGS, THE SECOND CANNOT BE.  CONDUCT
REMAINS SUBJECT TO REGULATION FOR THE PROTECTION OF SOCIETY." 

/4/  STATISTICAL ABSTRACT OF THE UNITED STATES (1968), TABLE NO.
578, P. 406. 

MR. JUSTICE HARLAN, DISSENTING. 

I CERTAINLY AGREE THAT STATE PUBLIC SCHOOL AUTHORITIES IN THE
DISCHARGE OF THEIR RESPONSIBILITIES ARE NOT WHOLLY EXEMPT FROM THE
REQUIREMENTS OF THE FOURTEENTH AMENDMENT RESPECTING THE FREEDOMS OF
EXPRESSION AND ASSOCIATION.  AT THE SAME TIME I AM RELUCTANT TO BELIEVE
THAT THERE IS ANY DISAGREEMENT BETWEEN THE MAJORITY AND MYSELF ON THE
PROPOSITION THAT SCHOOL OFFICIALS SHOULD BE ACCORDED THE WIDEST
AUTHORITY IN MAINTAINING DISCIPLINE AND GOOD ORDER IN THEIR
INSTITUTIONS.  TO TRANSLATE THAT PROPOSITION INTO A WORKABLE
CONSTITUTIONAL RULE, I WOULD, IN CASES LIKE THIS, CAST UPON THOSE
COMPLAINING THE BURDEN OF SHOWING THAT A PARTICULAR SCHOOL MEASURE WAS
MOTIVATED BY OTHER THAN LEGITIMATE SCHOOL CONCERNS-- FOR EXAMPLE, A
DESIRE TO PROHIBIT THE EXPRESSION OF AN UNPOPULAR POINT OF VIEW, WHILE
PERMITTING EXPRESSION OF THE DOMINANT OPINION. 

FINDING NOTHING IN THIS RECORD WHICH IMPUGNS THE GOOD FAITH OF
RESPONDENTS IN PROMULGATING THE ARMBAND REGULATION, I WOULD AFFIRM THE
JUDGMENT BELOW. 

DAN L. JOHNSTON ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE MELVIN L. WULF AND DAVID N. ELLENHORN. 

ALLAN A. HERRICK ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE HERSCHEL G. LANGDON AND DAVID W. BELIN. 

CHARLES MORGAN, JR., FILED A BRIEF FOR THE UNITED STATES NATIONAL
STUDENT ASSOCIATION, AS AMICUS CURIAE, URGING REVERSAL. 
..END :






















CORDREY V. CORDREY, 393 U.S. 527 


       CORDREY V. CORDREY. 

        APPEAL FROM THE SUPREME COURT OF FLORIDA. 

        NO. 859.  DECIDED FEBRUARY 24, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

ROBERT SCOTT KAUFMAN FOR APPELLANT. 

WILLIAM H. ALLEN AND JOHN E. VANDERSTAR FOR APPELLEE. 
..END :










SERBIAN ORTHODOX CHURCH CONGREGATION OF ST. DEMETRIUS V. KELEMEN, 393
U.S. 527 



       SERBIAN ORTHODOX CHURCH CONGREGATION OF ST. DEMETRIUS OF

           AKRON V. KELEMEN ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

     OHIO. 

        NO. 91.  DECIDED FEBRUARY 24, 1969. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, JUDGMENT IS
VACATED, AND THE CASE IS REMANDED TO THE SUPREME COURT OF OHIO FOR
FURTHER CONSIDERATION IN LIGHT OF PRESBYTERIAN CHURCH IN THE UNITED
STATES V. MARY ELIZABETH BLUE HULL MEMORIAL PRESBYTERIAN CHURCH, ANTE,
P. 440. 

BERNARD R. ROETZEL AND BERNARD J. ROETZEL FOR PETITIONER. 

FREDERICK H. GILLEN AND DON R. MILLER FOR RESPONDENTS. 
..END :























BECKER V. VIRGINIA, 393 U.S. 528 


       BECKER V. VIRGINIA. 

        APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

        NO. 431.  DECIDED FEBRUARY 24, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

GARLAND M. LAYTON FOR APPELLANT. 

ANDRE EVANS AND JOSEPH L. LYLE, JR., FOR APPELLEE. 
..END :










MARYLAND & VIRGINIA ELDERSHIP OF THE CHURCHES OF GOD V. CHURCH OF GOD
AT SHARPSBURG, 393 U.S. 528  



       MARYLAND & VIRGINIA ELDERSHIP OF THE CHURCHES OF GOD ET AL.

           V. CHURCH OF GOD AT SHARPSBURG, INC., ET AL.

        APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

        NO. 357.  DECIDED FEBRUARY 24, 1969. 


249 MD. 650, 241 A.2D 691, VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT OF
APPEALS OF MARYLAND FOR FURTHER CONSIDERATION IN LIGHT OF PRESBYTERIAN
CHURCH IN THE UNITED STATES V. MARY ELIZABETH BLUE HULL MEMORIAL
PRESBYTERIAN CHURCH, ANTE, P. 440 

JAMES H. BOOSER, ALFRED L. SCANLAN, AND MARTIN J. FLYNN FOR
APPELLANTS. 

LEO PFEFFER FOR THE GENERAL ELDERSHIP OF THE CHURCHES OF GOD IN
NORTH AMERICA, AS AMICUS CURIAE, IN SUPPORT OF APPELLANTS. 
..END :
























FORAN V. WEINHOFF, 393 U.S. 529 


       FORAN V. WEINHOFF ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

DISTRICT OF WISCONSIN. 

        NO. 870.  DECIDED FEBRUARY 24, 1969. 


291 F.SUPP.  498, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WEISL, MORTON
HOLLANDER, AND ROBERT V. ZENER FOR APPELLEES. 
..END :







MORGAN V. BOARD OF FORESTRY OF OREGON, 393 U.S. 529 


       MORGAN ET AL. V. BOARD OF FORESTRY OF OREGON ET AL.

        APPEAL FROM THE SUPREME COURT OF OREGON. 

   NO. 632.  DECIDED FEBRUARY 24, 1969. 


250 ORE.  460, 443 P.2D 236, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

ERVIN W. POTTER FOR APPELLANTS. 

ROBERT Y. THORNTON, ATTORNEY GENERAL OF OREGON, AND THOMAS C.
STACER, ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :









ACCIDENT INDEX BUREAU V. MALE, 393 U.S. 530 


       ACCIDENT INDEX BUREAU, INC., ET AL. V. MALE, COMMISSIONER,

           DEPARTMENT OF LABOR & INDUSTRY, ET AL.

        APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

      NO. 889.  DECIDED FEBRUARY 24, 1969. 


51 N.J. 107, 237 A.2D 880, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

EDWARD B. MEREDITH FOR APPELLANTS. 
..END :











BAKER NATIONAL BANK V. HENDERSON, 393 U.S. 530 


       BAKER NATIONAL BANK V. HENDERSON, ADMINISTRATRIX. 

        APPEAL FROM THE SUPREME COURT OF MONTANA. 

   NO. 883.  DECIDED FEBRUARY 24, 1969. 


151 MONT. 526, 445 P.2D 574, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS, MR. JUSTICE HARLAN, AND MR. JUSTICE WHITE ARE
OF THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE
SET FOR ORAL ARGUMENT. 

THOMAS E. TOWE FOR APPELLANT. 
..END :










MEEKS V. FLOURNEY, 393 U.S. 531 


       MEEKS V. FLOURNEY, SHERIFF, ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

      TEXAS. 

        NO. 81, MISC.  DECIDED FEBRUARY 24, 1969. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF TEXAS FOR FURTHER
CONSIDERATION IN LIGHT OF SMITH V. HOOEY, ANTE, P. 374. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, A. J. CARUBBI, JR., EXECUTIVE ASSISTANT
ATTORNEY GENERAL, AND ROBERT C. FLOWERS, LONNY F. ZWIENER, AND GILBERT
J. PENA, ASSISTANT ATTORNEYS GENERAL, FOR RESPONDENTS. 
..END :






KOHLER V. TUGWELL, 393 U.S. 531 


       KOHLER ET AL. V. TUGWELL, TREASURER OF LOUISIANA, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF LOUISIANA. 

    NO. 933.  DECIDED FEBRUARY 24, 1969. 


292 F.SUPP.  978, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

DONALD V. ORGAN FOR APPELLANTS. 

DOROTHY WOLBRETTE AND WILLIAM P. CURRY, ASSISTANT ATTORNEYS GENERAL
OF LOUISIANA, FOR APPELLEES. 
..END :








BUSH V. UNITED STATES, 393 U.S. 532 


       BUSH V. UNITED STATES. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF OREGON. 

        NO. 857, MISC.  DECIDED FEBRUARY 24, 1969. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, AND
JEROME M. FEIT FOR THE UNITED STATES. 
..END :











MCCRORY V. MISSISSIPPI, 393 U.S. 532 


       MCCRORY V. MISSISSIPPI. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           MISSISSIPPI. 

        NO. 153, MISC.  DECIDED FEBRUARY 24, 1969. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF MISSISSIPPI FOR FURTHER
CONSIDERATION IN LIGHT OF SMITH V. HOOEY, ANTE, P. 374. 

W. S. MOORE FOR PETITIONER. 

JOE T. PATTERSON, ATTORNEY GENERAL OF MISSISSIPPI, AND G. GARLAND
LYELL JR., ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :






TRIPLETT V. FLOYD CIRCUIT COURT, 393 U.S. 533 


       TRIPLETT V. FLOYD CIRCUIT COURT ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

          INDIANA. 

        NO. 57, MISC.  DECIDED FEBRUARY 24, 1969. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF INDIANA FOR FURTHER
CONSIDERATION IN LIGHT OF MSITH V. HOOEY, ANTE, P. 374. 

JOHN J. DILLON, ATTORNEY GENERAL OF INDIANA, AND RICHARD V. BENNETT,
DEPUTY ATTORNEY GENERAL, FOR RESPONDENTS. 
..END :








DUNCAN V. INDIANA, 393 U.S. 533 


       DUNCAN V. INDIANA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           INDIANA. 

        NO. 110, MISC.  DECIDED FEBRUARY 24, 1969. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF INDIANA FOR FURTHER
CONSIDERATION IN LIGHT OF SMITH V. HOOEY, ANTE, P. 374. 

JOHN J. DILLON, ATTORNEY GENERAL OF INDIANA, AND RICHARD V. BENNETT,
DEPUTY ATTORNEY GENERAL, FOR RESPONDENT. 
..END :








SERTA ASSOCIATES V. UNITED STATES, 393 U.S. 534 


       SERTA ASSOCIATES, INC. V. UNITED STATES. 

 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

       NORTHERN DISTRICT OF ILLINOIS. 

        NO. 878.  DECIDED FEBRUARY 24, 1969. 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

SIGMUND TIMBERG, LIONEL G. GROSS, AND DAVID V. KAHN FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL
HAMMOND, AND WILLIAM R. WEISSMAN FOR THE UNITED STATES. 
..END :
























NATIONAL INDUSTRIAL TRAFFIC LEAGUE V. UNITED STATES, 393 U.S. 535 


       NATIONAL INDUSTRIAL TRAFFIC LEAGUE ET AL. V. UNITED STATES

           ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA. 

        NO. 898.  DECIDED FEBRUARY 24, 1969. 


287 F.SUPP.  129, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

JOHN F. DONELAN, JOHN M. CLEARY, ARTHUR A. ARSHAM, AND JOHN J. C.
MARTIN FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL
HAMMOND, HOWARD E. SHAPIRO, ROBERT W. GINNANE, AND RAYMOND M. ZIMMET
FOR THE UNITED STATES ET AL., LEGRAND A. CARLSTON, Z. L. PEARSON, JR.,
AND BRYCE REA, JR., FOR ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., AND
MR. REA FOR PACIFIC INLAND TARIFF BUREAU, INC., APPELLEES. 
..END :
























N.Y. CENTRAL RAILROAD V. LEFKOWITZ, 393 U.S. 536 


       NEW YORK CENTRAL RAILROAD CO. ET AL. V. LEFKOWITZ, ATTORNEY

           GENERAL OF NEW YORK ET AL.

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 914.  DECIDED FEBRUARY 24, 1969. 


23 N.Y.2D 1, 241 N.E.2D 730, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

JOHN A. WELLS, GERALD E. DWYER, AND VICTOR F. CONDELLO FOR
APPELLANTS. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, PRO SE, RUTH
KESSLER TOCH, SOLICITOR GENERAL, AND JOSEPH A. ROMANO, ASSISTANT
ATTORNEY GENERAL, FOR APPELLEE LEFKOWITZ, AND THOMAS A. SHAW, JR., AND
HAROLD C. HEISS FOR APPELLEES BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN ET AL.
..END :




SPINELLI V. UNITED STATES, 393 U.S. 410 


       SPINELLI V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT. 

        NO. 8.  ARGUED OCTOBER 16-17, 1968.-- DECIDED JANUARY 27,

           1969. 


PETITIONER WAS CONVICTED OF ILLEGAL INTERSTATE GAMBLING ACTIVITIES
DESPITE HIS CLAIM THAT THE COMMISSIONER'S WARRANT AUTHORIZING THE FBI
SEARCH THAT UNCOVERED EVIDENCE USED AT HIS TRIAL VIOLATED THE FOURTH
AMENDMENT.  HE ARGUED THAT THE FBI AGENT'S SUPPORTING AFFIDAVIT DID NOT
AFFORD PROBABLE CAUSE FOR ISSUANCE OF THE WARRANT.  THE AFFIDAVIT
ALLEGED THAT:  THE FBI HAD FOLLOWED PETITIONER ON FIVE DAYS, ON FOUR OF
WHICH HE HAD BEEN SEEN CROSSING ONE OF TWO BRIDGES LEADING FROM
ILLINOIS TO ST. LOUIS, MISSOURI, AND HAD BEEN SEEN PARKING HIS CAR AT A
ST. LOUIS APARTMENT HOUSE PARKING LOT; HE WAS SEEN ONE DAY TO ENTER A
PARTICULAR APARTMENT; THE APARTMENT CONTAINED TWO TELEPHONES WITH
SPECIFIED NUMBERS; PETITIONER WAS KNOWN TO AFFIANT AS A GAMBLER AND
ASSOCIATE OF GAMBLERS; AND THE FBI HAD "BEEN INFORMED BY A CONFIDENTIAL
RELIABLE INFORMANT" THAT PETITIONER WAS "OPERATING A HANDBOOK AND
ACCEPTING WAGERS AND DISSEMINATING WAGERING INFORMATION BY MEANS OF THE
TELEPHONES" WHICH HAD BEEN ASSIGNED THE SPECIFIED NUMBERS.  VIEWING THE
INFORMATION IN THE AFFIDAVIT IN ITS TOTALITY THE COURT OF APPEALS
DEEMED THE PRINCIPLES OF AGUILAR V. TEXAS, 378 U.S. 108, SATISFIED AND
UPHELD THE CONVICTION.  HELD:  THE INFORMANT'S TIP, AN ESSENTIAL PART
OF THE AFFIDAVIT IN THIS CASE, WAS NOT SUFFICIENT (EVEN AS CORROBORATED
BY OTHER ALLEGATIONS) TO PROVIDE THE BASIS FOR A FINDING OF PROBABLE
CAUSE THAT A CRIME WAS BEING COMMITTED.  PP. 412-420. 

(A) THE TIP WAS INADEQUATE UNDER THE STANDARDS OF AGUILAR, SUPRA,
SINCE IT DID NOT SET FORTH ANY REASON TO SUPPORT THE CONCLUSION THAT
THE INFORMANT WAS "RELIABLE" AND DID NOT SUFFICIENTLY STATE THE
UNDERLYING CIRCUMSTANCES FROM WHICH THE INFORMANT HAD CONCLUDED THAT
PETITIONER WAS RUNNING A BOOKMAKING OPERATION OR SUFFICIENTLY DETAIL
HIS ACTIVITIES TO ENABLE THE COMMISSIONER TO KNOW THAT HE WAS RELYING
ON MORE THAN CASUAL RUMOR OR GENERAL REPUTATION.  CF. DRAPER V. UNITED
STATES, 358 U.S. 307.  PP. 415-417. 

(B) NOR WAS THE TIP'S RELIABILITY SUFFICIENTLY ENHANCED BY THE FBI'S
CORROBORATION OF CERTAIN LIMITED ASPECTS OF THE INFORMANT'S REPORT
THROUGH THE USE OF INDEPENDENT SOURCES.  PP. 417-418. 

(C) THE FBI'S SURVEILLANCE OF PETITIONER AND ITS INVESTIGATION OF
THE TELEPHONE COMPANY RECORDS DO NOT INDEPENDENTLY SUGGEST CRIMINAL
CONDUCT WHEN TAKEN BY THEMSELVES.  P. 418. 

382 F.2D 871, REVERSED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WILLIAM SPINELLI WAS CONVICTED UNDER 18 U.S.C. 1952 /1/  OF TRAVELING
TO ST. LOUIS, MISSOURI, FROM A NEARBY ILLINOIS SUBURB WITH THE
INTENTION OF CONDUCTING GAMBLING ACTIVITIES PROSCRIBED BY MISSOURI
LAW.  SEE MO. REV. STAT. SEC. 563.360 (1959).  AT EVERY APPROPRIATE
STAGE IN THE PROCEEDINGS IN THE LOWER COURTS, THE PETITIONER CHALLENGED
THE CONSTITUTIONALITY OF THE WARRANT WHICH AUTHORIZED THE FBI SEARCH
THAT UNCOVERED THE EVIDENCE NECESSARY FOR HIS CONVICTION.  AT EACH
STAGE, SPINELLI'S CHALLENGE WAS TREATED IN A DIFFERENT WAY.  AT A
PRETRIAL SUPPRESSION HEARING, THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI HELD THAT SPINELLI LACKED STANDING TO
RAISE A FOURTH AMENDMENT OBJECTION.  A UNANIMOUS PANEL OF THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT REJECTED THE DISTRICT COURT'S GROUND, A
MAJORITY HOLDING FURTHER THAT THE WARRANT WAS ISSUED WITHOUT PROBABLE
CAUSE.  AFTER AN EN BANC REHEARING, THE COURT OF APPEALS SUSTAINED THE
WARRANT AND AFFIRMED THE CONVICTION BY A VOTE OF SIX TO TWO.  382 F.2D
871.  BOTH THE MAJORITY AND DISSENTING EN BANC OPINIONS REFLECT A MOST
CONSCIENTIOUS EFFORT TO APPLY THE PRINCIPLES WE ANNOUNCED IN AGUILAR V.
TEXAS, 378 U.S. 108 (1964), TO A FACTUAL SITUATION WHOSE BASIC
CHARACTERISTICS HAVE NOT BEEN AT ALL UNCOMMON IN RECENT SEARCH WARRANT
CASES.  BELIEVING IT DESIRABLE THAT THE PRINCIPLES OF AGUILAR SHOULD BE
FURTHER EXPLICATED, WE GRANTED CERTIORARI, 390 U.S. 942, OUR WRIT BEING
LATER LIMITED TO THE QUESTION OF THE CONSTITUTIONAL VALIDITY OF THE
SEARCH AND SEIZURE.  /2/  391 U.S. 933.  FOR REASONS THAT FOLLOW WE
REVERSE. 

IN AGUILAR, A SEARCH WARRANT HAD ISSUED UPON AN AFFIDAVIT OF POLICE
OFFICERS WHO SWORE ONLY THAT THEY HAD "RECEIVED RELIABLE INFORMATION
FROM A CREDIBLE PERSON AND DO BELIEVE" THAT NARCOTICS WERE BEING
ILLEGALLY STORED ON THE DESCRIBED PREMISES.  WHILE RECOGNIZING THAT THE
CONSTITUTIONAL REQUIREMENT OF PROBABLE CAUSE CAN BE SATISFIED BY
HEARSAY INFORMATION, THIS COURT HELD THE AFFIDAVIT INADEQUATE FOR TWO
REASONS.  FIRST, THE APPLICATION FAILED TO SET FORTH ANY OF THE
"UNDERLYING CIRCUMSTANCES" NECESSARY TO ENABLE THE MAGISTRATE
INDEPENDENTLY TO JUDGE OF THE VALIDITY OF THE INFORMANT'S CONCLUSION
THAT THE NARCOTICS WERE WHERE HE SAID THEY WERE.  SECOND, THE AFFIANT
OFFICERS DID NOT ATTEMPT TO SUPPORT THEIR CLAIM THAT THEIR INFORMANT
WAS "'CREDIBLE' OR HIS INFORMATION 'RELIABLE.'"  THE GOVERNMENT IS,
HOWEVER, QUITE RIGHT IN SAYING THAT THE FBI AFFIDAVIT IN THE PRESENT
CASE IS MORE AMPLE THAN THAT IN AGUILAR.  NOT ONLY DOES IT CONTAIN A
REPORT FROM AN ANONYMOUS INFORMANT, BUT IT ALSO CONTAINS A REPORT OF AN
INDEPENDENT FBI INVESTIGATION WHICH IS SAID TO CORROBORATE THE
INFORMANT'S TIP.  WE ARE, THEN, REQUIRED TO DELINEATE THE MANNER IN
WHICH AGUILAR'S TWO-PRONGED TEST SHOULD BE APPLIED IN THESE
CIRCUMSTANCES. 

IN ESSENCE, THE AFFIDAVIT, REPRODUCED IN FULL IN THE APPENDIX TO
THIS OPINION, CONTAINED THE FOLLOWING ALLEGATIONS:  /3/ 

1.  THE FBI HAD KEPT TRACK OF SPINELLI'S MOVEMENTS ON FIVE DAYS
DURING THE MONTH OF AUGUST I965.  ON FOUR OF THESE OCCASIONS, SPINELLI
WAS SEEN CROSSING ONE OF TWO BRIDGES LEADING FROM ILLINOIS INTO ST.
LOUIS, MISSOURI, BETWEEN 11 A.M. AND 12:15 P.M.  ON FOUR OF THE FIVE
DAYS, SPINELLI WAS ALSO SEEN PARKING HIS CAR IN A LOT USED BY RESIDENTS
OF AN APARTMENT HOUSE AT 1108 INDIAN CIRCLE DRIVE IN ST. LOUIS, BETWEEN
3:30 P.M. AND 4:45 P.M.  /4/  ON ONE DAY, SPINELLI WAS FOLLOWED FURTHER
AND SEEN TO ENTER A PARTICULAR APARTMENT IN THE BUILDING. 

2.  AN FBI CHECK WITH THE TELEPHONE COMPANY REVEALED THAT THIS
APARTMENT CONTAINED TWO TELEPHONES LISTED UNDER THE NAME OF GRACE P.
HAGEN, AND CARRYING THE NUMBERS WYDOWN 4-0029 AND WYDOWN 4-0136. 

3.  THE APPLICATION STATED THAT "WILLIAM SPINELLI IS KNOWN TO THIS
AFFIANT AND TO FEDERAL LAW ENFORCEMENT AGENTS AND LOCAL LAW ENFORCEMENT
AGENTS AS A BOOKMAKER, AN ASSOCIATE OF BOOKMAKERS, A GAMBLER, AND AN
ASSOCIATE OF GAMBLERS." 

4.  FINALLY, IT WAS STATED THAT THE FBI "HAS BEEN INFORMED BY A
CONFIDENTIAL RELIABLE INFORMANT THAT WILLIAM SPINELLI IS OPERATING A
HANDBOOK AND ACCEPTING WAGERS AND DISSEMINATING WAGERING INFORMATION BY
MEANS OF THE TELEPHONES WHICH HAVE BEEN ASSIGNED THE NUMBERS WYDOWN 4
0029 AND WYDOWN 4-0136." 

THERE CAN BE NO QUESTION THAT THE LAST ITEM MENTIONED DETAILING THE
INFORMANT'S TIP, HAS A FUNDAMENTAL PLACE IN THIS WARRANT APPLICATION. 
WITHOUT IT, PROBABLE CAUSE COULD NOT BE ESTABLISHED.  THE FIRST TWO
ITEMS REFLECT ONLY INNOCENT-SEEMING ACTIVITY AND DATA.  SPINELLI'S
TRAVELS TO AND FROM THE APARTMENT BUILDING AND HIS ENTRY INTO A
PARTICULAR APARTMENT ON ONE OCCASION COULD HARDLY BE TAKEN AS
BESPEAKING GAMBLING ACTIVITY; AND THERE IS SURELY NOTHING UNUSUAL ABOUT
AN APARTMENT CONTAINING TWO SEPARATE TELEPHONES.  MANY A HOUSEHOLDER
INDULGES HIMSELF IN THIS PETTY LUXURY.  FINALLY, THE ALLEGATION THAT
SPINELLI WAS "KNOWN" TO THE AFFIANT AND TO OTHER FEDERAL AND LOCAL LAW
ENFORCEMENT OFFICERS AS A GAMBLER AND AN ASSOCIATE OF GAMBLERS IS BUT A
BALD AND UNILLUMINATING ASSERTION OF SUSPICION THAT IS ENTITLED TO NO
WEIGHT IN APPRAISING THE MAGISTRATE'S DECISION.  NATHANSON V. UNITED
STATES, 290 U.S. 41, 46 (1933). 

SO MUCH INDEED THE GOVERNMENT DOES NOT DENY.  RATHER, FOLLOWING THE
REASONING OF THE COURT OF APPEALS, THE GOVERNMENT CLAIMS THAT THE
INFORMANT'S TIP GIVES A SUSPICIOUS COLOR TO THE FBI'S REPORTS DETAILING
SPINELLI'S INNOCENT-SEEMING CONDUCT AND THAT, CONVERSELY, THE FBI'S
SURVEILLANCE CORROBORATES THE INFORMANT'S TIP, THEREBY ENTITLING IT TO
MORE WEIGHT.  IT IS TRUE, OF COURSE, THAT THE MAGISTRATE IS OBLIGATED
TO RENDER A JUDGMENT BASED UPON A COMMON-SENSE READING OF THE ENTIRE
AFFIDAVIT.  UNITED STATES V. VENTRESCA, 380 U.S. 102, 108 (1965).  WE
BELIEVE, HOWEVER, THAT THE "TOTALITY OF CIRCUMSTANCES" APPROACH TAKEN
BY THE COURT OF APPEALS PAINTS WITH TOO BROAD A BRUSH.  WHERE, AS HERE,
THE INFORMER'S TIP IS A NECESSARY ELEMENT IN A FINDING OF PROBABLE
CAUSE, ITS PROPER WEIGHT MUST BE DETERMINED BY A MORE PRECISE
ANALYSIS. 

THE INFORMER'S REPORT MUST FIRST BE MEASURED AGAINST AGUILAR'S
STANDARDS SO THAT ITS PROBATIVE VALUE CAN BE ASSESSED.  IF THE TIP IS
FOUND INADEQUATE UNDER AGUILAR, THE OTHER ALLEGATIONS WHICH CORROBORATE
THE INFORMATION CONTAINED IN THE HEARSAY REPORT SHOULD THEN BE
CONSIDERED.  AT THIS STAGE AS WELL, HOWEVER, THE STANDARDS ENUNCIATED
IN AGUILAR MUST INFORM THE MAGISTRATE'S DECISION.  HE MUST ASK:  CAN IT
FAIRLY BE SAID THAT THE TIP, EVEN WHEN CERTAIN PARTS OF IT HAVE BEEN
CORROBORATED BY INDEPENDENT SOURCES, IS AS TRUSTWORTHY AS A TIP WHICH
WOULD PASS AGUILAR'S TESTS WITHOUT INDEPENDENT CORROBORATION?  AGUILAR
IS RELEVANT AT THIS STAGE OF THE INQUIRY AS WELL BECAUSE THE TESTS IT
ESTABLISHES WERE DESIGNED TO IMPLEMENT THE LONG-STANDING PRINCIPLE THAT
PROBABLE CAUSE MUST BE DETERMINED BY A "NEUTRAL AND DETACHED
MAGISTRATE," AND NOT BY "THE OFFICER ENGAGED IN THE OFTEN COMPETITIVE
ENTERPRISE OF FERRETING OUT CRIME."  JOHNSON V. UNITED STATES, 333 U.S.
10, 14 (1948).  A MAGISTRATE CANNOT BE SAID TO HAVE PROPERLY DISCHARGED
HIS CONSTITUTIONAL DUTY IF HE RELIES ON AN INFORMER'S TIP WHICH-- EVEN
WHEN PARTIALLY CORROBORATED-- IS NOT AS RELIABLE AS ONE WHICH PASSES
AGUILAR'S REQUIREMENTS WHEN STANDING ALONE. 

APPLYING THESE PRINCIPLES TO THE PRESENT CASE, WE FIRST CONSIDER THE
WEIGHT TO BE GIVEN THE INFORMER'S TIP WHEN IT IS CONSIDERED APART FROM
THE REST OF THE AFFIDAVIT.  IT IS CLEAR THAT A COMMISSIONER COULD NOT
CREDIT IT WITHOUT ABDICATING HIS CONSTITUTIONAL FUNCTION.  THOUGH THE
AFFIANT SWORE THAT HIS CONFIDANT WAS "RELIABLE," HE OFFERED THE
MAGISTRATE NO REASON IN SUPPORT OF HIS CONCLUSION.  PERHAPS EVEN MORE
IMPORTANT IS THE FACT THAT AGUILAR'S OTHER TEST HAS NOT BEEN
SATISFIED.  THE TIP DOES NOT CONTAIN A SUFFICIENT STATEMENT OF THE
UNDERLYING CIRCUMSTANCES FROM WHICH THE INFORMER CONCLUDED THAT
SPINELLI WAS RUNNING A BOOKMAKING OPERATION.  WE ARE NOT TOLD HOW THE
FBI'S SOURCE RECEIVED HIS INFORMATION-- IT IS NOT ALLEGED THAT THE
INFORMANT PERSONALLY OBSERVED SPINELLI AT WORK OR THAT HE HAD EVER
PLACED A BET WITH HIM.  MOREOVER, IF THE INFORMANT CAME BY THE
INFORMATION INDIRECTLY, HE DID NOT EXPLAIN WHY HIS SOURCES WERE
RELIABLE.  CF. JABEN V. UNITED STATES, 381 U.S. 214 (1965).  IN THE
ABSENCE OF A STATEMENT DETAILING THE MANNER IN WHICH THE INFORMATION
WAS GATHERED, IT IS ESPECIALLY IMPORTANT THAT THE TIP DESCRIBE THE
ACCUSED'S CRIMINAL ACTIVITY IN SUFFICIENT DETAIL THAT THE MAGISTRATE
MAY KNOW THAT HE IS RELYING ON SOMETHING MORE SUBSTANTIAL THAN A CASUAL
RUMOR CIRCULATING IN THE UNDERWORLD OR AN ACCUSATION BASED MERELY ON AN
INDIVIDUAL'S GENERAL REPUTATION. 

THE DETAIL PROVIDED BY THE INFORMANT IN DRAPER V. UNITED STATES, 358
U.S. 307 (1959), PROVIDES A SUITABLE BENCHMARK.  WHILE HEREFORD, THE
GOVERNMENT'S INFORMER IN THAT CASE, DID NOT STATE THE WAY IN WHICH HE
HAD OBTAINED HIS INFORMATION, HE REPORTED THAT DRAPER HAD GONE TO
CHICAGO THE DAY BEFORE BY TRAIN AND THAT HE WOULD RETURN TO DENVER BY
TRAIN WITH THREE OUNCES OF HEROIN ON ONE OF TWO SPECIFIED MORNINGS. 
MOREOVER, HEREFORD WENT ON TO DESCRIBE, WITH MINUTE PARTICULARITY, THE
CLOTHES THAT DRAPER WOULD BE WEARING UPON HIS ARRIVAL AT THE DENVER
STATION.  A MAGISTRATE, WHEN CONFRONTED WITH SUCH DETAIL, COULD
REASONABLY INFER THAT THE INFORMANT HAD GAINED HIS INFORMATION IN A
RELIABLE WAY.  /5/  SUCH AN INFERENCE CANNOT BE MADE IN THE PRESENT
CASE.  HERE, THE ONLY FACTS SUPPLIED WERE THAT SPINELLI WAS USING TWO
SPECIFIED TELEPHONES AND THAT THESE PHONES WERE BEING USED IN GAMBLING
OPERATIONS.  THIS MEAGER REPORT COULD EASILY HAVE BEEN OBTAINED FROM AN
OFFHAND REMARK HEARD AT A NEIGHBORHOOD BAR. 

NOR DO WE BELIEVE THAT THE PATENT DOUBTS AGUILAR RAISES AS TO THE
REPORT'S RELIABILITY ARE ADEQUATELY RESOLVED BY A CONSIDERATION OF THE
ALLEGATIONS DETAILING THE FBI'S INDEPENDENT INVESTIGATIVE EFFORTS.  AT
MOST, THESE ALLEGATIONS INDICATED THAT SPINELLI COULD HAVE USED THE
TELEPHONES SPECIFIED BY THE INFORMANT FOR SOME PURPOSE.  THIS CANNOT BY
ITSELF BE SAID TO SUPPORT BOTH THE INFERENCE THAT THE INFORMER WAS
GENERALLY TRUSTWORTHY AND THAT HE HAD MADE HIS CHARGE AGAINST SPINELLI
ON THE BASIS OF INFORMATION OBTAINED IN A RELIABLE WAY.  ONCE AGAIN,
DRAPER PROVIDES A RELEVANT COMPARISON.  INDEPENDENT POLICE WORK IN THAT
CASE CORROBORATED MUCH MORE THAN ONE SMALL DETAIL THAT HAD BEEN
PROVIDED BY THE INFORMANT.  THERE, THE POLICE, UPON MEETING THE INBOUND
DENVER TRAIN ON THE SECOND MORNING SPECIFIED BY INFORMER HEREFORD, SAW
A MAN WHOSE DRESS CORRESPONDED PRECISELY TO HEREFORD'S DETAILED
DESCRIPTION.  IT WAS THEN APPARENT THAT THE INFORMANT HAD NOT BEEN
FABRICATING HIS REPORT OUT OF WHOLE CLOTH; SINCE THE REPORT WAS OF THE
SORT WHICH IN COMMON EXPERIENCE MAY BE RECOGNIZED AS HAVING BEEN
OBTAINED IN A RELIABLE WAY, IT WAS PERFECTLY CLEAR THAT PROBABLE CAUSE
HAD BEEN ESTABLISHED. 

WE CONCLUDE, THEN, THAT IN THE PRESENT CASE THE INFORMANT'S TIP--
EVEN WHEN CORROBORATED TO THE EXTENT INDICATED-- WAS NOT SUFFICIENT TO
PROVIDE THE BASIS FOR A FINDING OF PROBABLE CAUSE.  THIS IS NOT TO SAY
THAT THE TIP WAS SO INSUBSTANTIAL THAT IT COULD NOT PROPERLY HAVE
COUNTED IN THE MAGISTRATE'S DETERMINATION.  RATHER, IT NEEDED SOME
FURTHER SUPPORT.  WHEN WE LOOK TO THE OTHER PARTS OF THE APPLICATION,
HOWEVER, WE FIND NOTHING ALLEGED WHICH WOULD PERMIT THE SUSPICIONS
ENGENDERED BY THE INFORMANT'S REPORT TO RIPEN INTO A JUDGMENT THAT A
CRIME WAS PROBABLY BEING COMMITTED.  AS WE HAVE ALREADY SEEN, THE
ALLEGATIONS DETAILING THE FBI'S SURVEILLANCE OF SPINELLI AND ITS
INVESTIGATION OF THE TELEPHONE COMPANY RECORDS CONTAIN NO SUGGESTION OF
CRIMINAL CONDUCT WHEN TAKEN BY THEMSELVES-- AND THEY ARE NOT ENDOWED
WITH AN AURA OF SUSPICION BY VIRTUE OF THE INFORMER'S TIP.  NOR DO WE
FIND THAT THE FBI'S REPORTS TAKE ON A SINISTER COLOR WHEN READ IN LIGHT
OF COMMON KNOWLEDGE THAT BOOKMAKING IS OFTEN CARRIED ON OVER THE
TELPHONE AND FROM PREMISES OSTENSIBLY USED BY OTHERS FOR PERFECTLY
NORMAL PURPOSES.  SUCH AN ARGUMENT WOULD CARRY WEIGHT IN A SITUATION IN
WHICH THE PREMISES CONTAIN AN UNUSUAL NUMBER OF TELEPHONES OR ABNORMAL
ACTIVITY IS OBSERVED, CF. MCCRAY V. ILLINOIS, 386 U.S. 300, 302 (1967),
BUT IT DOES NOT FIT THIS CASE WHERE NEITHER OF THESE FACTORS IS
PRESENT.  /6/  ALL THAT REMAINS TO BE CONSIDERED IS THE FLAT STATEMENT
THAT SPINELLI WAS "KNOWN" TO THE FBI AND OTHERS AS A GAMBLER.  BUT JUST
AS A SIMPLE ASSERTION OF POLICE SUSPICION IS NOT ITSELF A SUFFICIENT
BASIS FOR A MAGISTRATE'S FINDING OF PROBABLE CAUSE, WE DO NOT BELIEVE
IT MAY BE USED TO GIVE ADDITIONAL WEIGHT TO ALLEGATIONS THAT WOULD
OTHERWISE BE INSUFFICIENT. 

THE AFFIDAVIT, THEN, FALLS SHORT OF THE STANDARDS SET FORTH IN
AGUILAR, DRAPER, AND OUR OTHER DECISIONS THAT GIVE CONTENT TO THE
NOTION OF PROBABLE CAUSE.  /7/  IN HOLDING AS WE HAVE DONE, WE DO NOT
RETREAT FROM THE ESTABLISHED PROPOSITIONS THAT ONLY THE PROBABILITY,
AND NOT A PRIMA FACIE SHOWING, OF CRIMINAL ACTIVITY IS THE STANDARD OF
PROBABLE CAUSE, BECK V. OHIO, 379 U.S. 89, 96 (1964); THAT AFFIDAVITS
OF PROBABLE CAUSE ARE TESTED BY MUCH LESS RIGOROUS STANDARDS THAT THOSE
GOVERNING THE ADMISSIBILITY OF EVIDENCE AT TRIAL, MCCRAY V. ILLINOIS,
386 U.S. 300, 311 (1967); THAT IN JUDGING PROBABLE CAUSE ISSUING
MAGISTRATES ARE NOT TO BE CONFINED BY NIGARDLY LIMITATIONS OR BY
RESTRICTIONS ON THE USE OF THEIR COMMON SENSE, UNITED STATES V.
VENTRESCA, 380 U.S. 102, 108 (1965); AND THAT THEIR DETERMINATION OF
PROBABLE CAUSE SHOULD BE PAID GREAT DEFERENCE BY REVIEWING COURTS,
JONES V. UNITED STATES, 362 U.S. 257, 270-271 (1960).  BUT WE CANNOT
SUSTAIN THIS WARRANT WITHOUT DILUTING IMPORTANT SAFEGUARDS THAT ASSURE
THAT THE JUDGMENT OF A DISINTERESTED JUDICIAL OFFICER WILL INTERPOSE
ITSELF BETWEEN THE POLICE AND THE CITIZENRY.  /8/     THE JUDGMENT OF
THE COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED TO THAT COURT
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE RELEVANT PORTION OF THE STATUTE READS: 

"(A) WHOEVER TRAVELS IN INTERSTATE OR FOREIGN COMMERCE OR USES ANY
FACILITY IN INTERSTATE . . . COMMERCE . . . WITH INTENT TO--

 *          *          *          * 

"(3) OTHERWISE PROMOTE, MANAGE, ESTABLISH, CARRY ONE . . . ANY
UNLAWFUL ACTIVITY, AND THEREAFTER PERFORMS OR ATTEMPTS TO PERFORM ANY
OF THE ACTS SPECIFIED IN SUBPARAGRAPHS (1), (2), AND (3), SHALL BE
FINED NOT MORE THAN $10,000 OR IMPRISONED FOR NOT MORE THAN FIVE YEARS,
OR BOTH. 

"(B) AS USED IN THIS SECTION 'UNLAWFUL ACTIVITY' MEANS (1) ANY
BUSINESS ENTERPRISE INVOLVING GAMBLING . . . IN VIOLATION OF THE LAWS
OF THE STATE IN WHICH THEY ARE COMMITTED OR OF THE UNITED STATES.  . .
. " 

/2/  WE AGREE WITH THE COURT OF APPEALS THAT SPINELLI HAS STANDING
TO RAISE HIS FOURTH AMENDMENT CLAIM.  THE ISSUE ARISES BECAUSE AT THE
TIME THE FBI SEARCHED THE APARTMENT IN WHICH SPINELLI WAS ALLEGED TO BE
CONDUCTING HIS BOOKMAKING OPERATION, THE PETITIONER WAS NOT ON THE
PREMISES.  INSTEAD, THE AGENTS DID NOT EXECUTE THEIR SEARCH WARRANT
UNTIL SPINELLI WAS SEEN TO LEAVE THE APARTMENT, LOCK THE DOOR, AND
ENTER THE HALLWAY.  AT THAT POINT, PETITIONER WAS ARRESTED, THE KEY TO
THE APARTMENT WAS DEMANDED OF HIM, AND THE SEARCH COMMENCED.  SINCE
PETITIONER WOULD PLAINLY HAVE STANDING IF HE HAD BEEN ARRESTE INSIDE
THE APARTMENT, JONES V. UNITED STATES, 362 U.S. 257, 267 (1960), IT
CANNOT MATTER THAT THE AGENTS PREFERRED TO DELAY THE ARREST UNTIL
PETITIONER STEPPED INTO THE HALLWAY-- ESPECIALLY WHEN THE FBI ONLY
MANAGED TO GAIN ENTRY INTO THE APARTMENT BY REQUIRING PETITIONER TO
SURRENDER HIS KEY. 

/3/  IT IS, OF COURSE, OF NO CONSEQUENCE THAT THE AGENTS MIGHT HAVE
HAD ADDITIONAL INFORMATION WHICH COULD HAVE BEEN GIVEN TO THE
COMMISSIONER.  "IT IS ELEMENTARY THAT IN PASSING ON THE VALIDITY OF A
WARRANT, THE REVIEWING COURT MAY CONSIDER ONLY INFORMATION BROUGHT TO
THE MAGISTRATE'S ATTENTION."  AGUILAR V. TEXAS, 378 U.S. 108, 109, N.
1.  SINCE THE GOVERNMENT DOES NOT ARGUE THAT WHATEVER ADDITIONAL
INFORMATION THE AGENTS MAY HAVE POSSESSED WAS SUFFICIENT TO PROVIDE
PROBABLE CAUSE FOR THE ARREST, THEREBY JUSTIFYING THE RESULTANT SEARCH
AS WELL, WE NEED NOT CONSIDER THAT QUESTION. 

/4/  NO REPORT WAS MADE AS TO SPINELLI'S MOVEMENTS DURING THE PERIOD
BETWEEN HIS ARRIVAL IN ST. LOUIS AT NOON AND HIS ARRIVAL AT THE PARKING
LOT IN THE LATE AFTERNOON.  IN FACT, THE EVIDENCE AT TRIAL INDICATED
THAT SPINELLI FREQUENTED THE OFFICES OF HIS STOCKBROKER DURING THIS
PERIOD. 

/5/  WHILE DRAPER INVOLVED THE QUESTION WHETHER THE POLICE HAD
PROBABLE CAUSE FOR AN ARREST WITHOUT A WARRANT, THE ANALYSIS REQUIRED
FOR AN ANSWER TO THIS QUESTION IS BASICALLY SIMILAR TO THAT DEMANDED OF
A MAGISTRATE WHEN HE CONSIDERS WHETHER A SEARCH WARRANT SHOULD ISSUE. 

/6/  A BOX CONTAINING THREE UNINSTALLED TELEPHONES WAS FOUND IN THE
APARTMENT, BUT ONLY AFTER EXECUTION OF THE SEARCH WARRANT. 

/7/  IN THOSE CASES IN WHICH THIS COURT HAS FOUND PROBABLE CAUSE
ESTABLISHED, THE SHOWING MADE WAS MUCH MORE SUBSTANTIAL THAN THE ONE
MADE HERE.  THUS, IN UNITED STATES V. VENTRESCA, 380 U.S. 102, 104
(1965), FBI AGENTS OBSERVED REPEATED DELIVERIES OF LOADS OF SUGAR IN 60
POUND BAGS, SMELLED THE ODOR OF FERMENTING MASH, AND HEARD "'SOUNDS
SIMILAR TO THAT OF A MOTOR OR A PUMP COMING FROM THE DIRECTION OF'
VENTRESCA'S HOUSE."  AGAIN, IN MCCRAY V. ILLINOIS, 386 U.S. 300, 303
304 (1967), THE INFORMANT REPORTED THAT MCCRAY "'WAS SELLING NARCOTICS
AND HAD NARCOTICS ON HIS PERSON NOW IN THE VICINITY OF 47TH AND
CALUMET.'"  WHEN THE POLICE ARRIVED AT THE INTERSECTION, THEY OBSERVED
MCCRAY ENGAGING IN VARIOUS SUSPICIOUS ACTIVITIES.  386 U.S.,AT 302. 

/8/  IN THE VIEW WE HAVE TAKEN OF THIS CASE, IT BECOMES UNNECESSARY
TO DECIDE WHETHER THE SEARCH WARRANT WAS PROPERLY EXECUTED, OR WHETHER
IT SUFFICIENTLY DESCRIBED THE THINGS THAT WERE SEIZED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

        APPENDIX TO OPINION OF THE COURT. 

     AFFIDAVIT IN SUPPORT OF SEARCH WARRANT. 

I, ROBERT L. BENDER, BEING DULY SWORN, DEPOSE AND SAY THAT I AM A
SPECIAL AGENT OF THE FEDERAL BUREAU OF INVESTIGATION, AND AS SUCH AM
AUTHORIZED TO MAKE SEARCHES AND SEIZURES. 

THAT ON AUGUST 6, 1965, AT APPROXIMATELY 11:44 A.M., WILLIAM
SPINELLI WAS OBSERVED BY AN AGENT OF THE FEDERAL BUREAU OF
INVESTIGATION DRIVING A 1964 FORD CONVERTIBLE, MISSOURI LICENSE HC3
649, ONTO THE EASTERN APPROACH OF THE VETERANS BRIDGE LEADING FROM EAST
ST. LOUIS, ILLINOIS, TO ST. LOUIS, MISSOURI. 

THAT ON AUGUST 11, 1965, AT APPROXIMATELY 11:16 A.M., WILLIAM
SPINELLI WAS OBSERVED BY AN AGENT OF THE FEDERAL BUREAU OF
INVESTIGATION DRIVING A 1964 FORD CONVERTIBLE, MISSOURI LICENSE HC3
649, ONTO THE EASTERN APPROACH OF THE EADS BRIDGE LEADING FROM EAST ST.
LOUIS, ILLINOIS, TO ST. LOUIS, MISSOURI. 

FURTHER, AT APPROXIMATELY 11:18 A.M. ON AUGUST 11, 1965, I OBSERVED
WILLIAM SPINELLI DRIVING THE AFORESAID FORD CONVERTIBLE FROM THE
WESTERN APPROACH OF THE EADS BRIDGE INTO ST. LOUIS, MISSOURI. 

FURTHER, AT APPROXIMATELY 4:40 P.M. ON AUGUST 11, 1965, I OBSERVED
THE AFORESAID FORD CONVERTIBLE, BEARING MISSOURI LICENSE HC3-649,
PARKED IN A PARKING LOT USED BY RESIDENTS OF THE CHIEFTAIN MANOR
APARTMENTS, APPROXIMATELY ONE BLOCK EAST OF 1108 INDIAN CIRCLE DRIVE. 

ON AUGUST 12, 1965, AT APPROXIMATELY 12:07 P.M., WILLIAM SPINELLI
WAS OBSERVED BY AN AGENT OF THE FEDERAL BUREAU OF INVESTIGATION DRIVING
THE AFORESAID 1964 FORD CONVERTIBLE ONTO THE EASTERN APPROACH OF THE
VETERANS BRIDGE FROM EAST ST. LOUIS, ILLINOIS, IN THE DIRECTION OF ST.
LOUIS, MISSOURI. 

FURTHER, ON AUGUST 12, 1965, AT APPROXIMATELY 3:46 P.M., I OBSERVED
WILLIAM SPINELLI DRIVING THE AFORESAID 1964 FORD CONVERTIBLE ONTO THE
PARKING LOT USED BY THE RESIDENTS OF THE CHIEFTAIN MANOR APARTMENTS
APPROXIMATELY ONE BLOCK EAST OF 1108 INDIAN CIRCLE DRIVE. 

FURTHER, ON AUGUST 12, 1965, AT APPRXIMATELY 3:49 P.M., WILLIAM
SPINELLI WAS OBSERVED BY AN AGENT OF THE FEDERAL BUREAU OF
INVESTIGATION ENTERING THE FRONT ENTRANCE OF THE TWO-STORY APARTMENT
BUILDING LOCATED AT 1108 INDIAN CIRCLE DRIVE, THIS BUILDING BEING ONE
OF THE CHIEFTAIN MANOR APARTMENTS. 

ON AUGUST 13, 1965, AT APPROXIMATELY 11:08 A.M., WILLIAM SPINELLI
WAS OBSERVED BY AN AGENT OF THE FEDERAL BUREAU OF INVESTIGATION DRIVING
THE AFORESAID FORD CONVERTIBLE ONTO THE EASTERN APPROACH OF THE EADS
BRIDGE FROM EAST ST. LOUIS, ILLINOIS, HEADING TOWARDS ST. LOUIS,
MISSOURI. 

FURTHER, ON AUGUST 13, 1965, AT APPROXIMATELY 11:11 A.M., I OBSERVED
WILLIAM SPINELLI DRIVING THE AFORESAID FORD CONVERTIBLE FROM THE
WESTERN APPROACH OF THE EADS BRIDGE INTO ST. LOUIS, MISSOURI. 

FURTHER, ON AUGUST 13, 1965, AT APPROXIMATELY 3:45 P.M., I OBSERVED
WILLIAM SPINELLI DRIVING THE AFORESAID 1964 FORD CONVERTIBLE ONTO THE
PARKING AREA USED BY RESIDENTS OF THE CHIEFTAIN MANOR APARTMENTS, SAID
PARKING AREA BEING APPROXIMATELY ONE BLOCK FROM 1108 INDIAN CIRCLE
DRIVE. 

FURTHER, ON AUGUST 13, 1965, AT APPROXIMATELY 3:55 P.M., WILLIAM
SPINELLI WAS OBSERVED BY AN AGENT OF THE FEDERAL BUREAU OF
INVESTIGATION ENTERING THE CORNER APARTMENT LOCATED ON THE SECOND FLOOR
IN THE SOUTHWEST CORNER, KNOWN AS APARTMENT F, OF THE TWO-STORY
APARTMENT BUILDING KNOWN AND NUMBERED AS 1108 INDIAN CIRCLE DRIVE. 

ON AUGUST 16, 1965, AT APPROXIMATELY 3:22 P.M., I OBSERVED WILLIAM
SPINELLI DRIVING THE AFORESAID FORD CONVERTIBLE ONTO THE PARKING LOT
USED BY THE RESIDENTS OF THE CHIEFTAIN MANOR APARTMENTS APPROXIMATELY
ONE BLOCK EAST OF 1108 INDIAN CIRCLE DRIVE. 

FURTHER, AN AGENT OF THE F.B.I. OBSERVED WILLIAM SPINELLI ALIGHT
FROM THE AFORESAID FORD CONVERTIBLE AND WALK TOWARD THE APARTMENT
BUILDING LOCATED AT 1108 INDIAN CIRCLE DRIVE. 

THE RECORDS OF THE SOUTHWESTERN BELL TELEPHONE COMPANY REFLECT THAT
THERE ARE TWO TELEPHONES LOCATED IN THE SOUTHWEST CORNER APARTMENT ON
THE SECOND FLOOR OF THE APARTMENT BUILDING LOCATED AT 1108 INDIAN
CIRCLE DRIVE UNDER THE NAME OF GRACE P. HAGEN.  THE NUMBERS LISTED IN
THE SOUTHWESTERN BELL TELEPHONE COMPANY RECORDS FOR THE AFORESAID
TELEPHONES ARE WYDOWN 4-0029 AND WYDOWN 4-0136. 

WILLIAM SPINELLI IS KNOWN TO THIS AFFIANT AND TO FEDERAL LAW
ENFORCEMENT AGENTS AND LOCAL LAW ENFORCEMENT AGENTS AS A BOOKMAKER, AN
ASSOCIATE OF BOOKMAKERS, A GAMBLER, AND AN ASSOCIATE OF GAMBLERS. 

THE FEDERAL BUREAU OF INVESTIGATION HAS BEEN INFORMED BY A
CONFIDENTIAL RELIABLE INFORMANT THAT WILLIAM SPINELLI IS OPERATING A
HANDBOOK AND ACCEPTING WAGERS AND DISSEMINATING WAGERING INFORMATION BY
MEANS OF THE TELEPHONES WHICH HAVE BEEN ASSIGNED THE NUMBERS WYDOWN 4
0029 AND WYDOWN 4-0136. 

              /S/ ROBERT L. BENDER,

              ROBERT L. BENDER,

 SPECIAL AGENT, FEDERAL BUREAU OF INVESTIGATION. 

SUBSCRIBED AND SWORN TO BEFORE ME THIS 18TH DAY OF AUGUST, 1965, AT
ST. LOUIS, MISSOURI. 

              /S/ WILLIAM R. O'TOOLE. 

MR. JUSTICE WHITE, CONCURRING. 

AN INVESTIGATOR'S AFFIDAVIT THAT HE HAS SEEN GAMBLING EQUIPMENT
BEING MOVED INTO A HOUSE AT A SPECIFIED ADDRESS WILL SUPPORT THE
ISSUANCE OF A SEARCH WARRANT.  THE OATH AFFIRMS THE HONESTY OF THE
STATEMENT AND NEGATIVES THE LIE OR IMAGINATION.  PERSONAL OBSERVATION
ATTESTS TO THE FACTS ASSERTED-- THAT THERE IS GAMBLING EQUIPMENT ON THE
PREMISES AT THE NAMED ADDRESS. 

BUT IF THE OFFICER SIMPLY AVERS, WITHOUT MORE, THAT THERE IS
GAMBLING PARAPHERNALIA ON CERTAIN PREMISES, THE WARRANT SHOULD NOT
ISSUE, EVEN THOUGH THE BELIEF OF THE OFFICER IS AN HONEST ONE, AS
EVIDENCED BY HIS OATH, AND EVEN THOUGH THE MAGISTRATE KNOWS HIM TO BE
AN EXPERIENCED, INTELLIGENT OFFICER WHO HAS BEEN RELIABLE IN THE PAST. 
THIS MUCH WAS SETTLED IN NATHANSON V. UNITED STATES, 290 U.S. 41
(1933), WHERE THE COURT HELD INSUFFICIENT AN OFFICER'S AFFIDAVIT
SWEARING HE HAD CAUSE TO BELIEVE THAT THERE WAS ILLEGAL LIQUOR ON THE
PREMISES FOR WHICH THE WARRANT WAS SOUGHT.  THE UNSUPPORTED ASSERTION
OR BELIEF OF THE OFFICER DOES NOT SATISFY THE REQUIREMENT OF PROBABLE
CAUSE.  JONES V. UNITED STATES, 362 U.S. 257, 269 (1960); GRAU V.
UNITED STATES, 287 U.S. 124 (1932); BYARS V. UNITED STATES, 273 U.S.
28, 29 (1927). 

WHAT IS MISSING IN NATHANSON AND LIKE CASES IS A STATEMENT OF THE
BASIS FOR THE AFFIANT'S BELIEVING THE FACTS CONTAINED IN THE AFFIDAVIT-
THE GOOD "CAUSE" WHICH THE OFFICER IN NATHANSON SAID HE HAD.  IF AN
OFFICER SWEARS THAT THERE IS GAMBLING EQUIPMENT AT A CERTAIN ADDRESS,
THE POSSIBILITIES ARE (1) THAT HE HAS SEEN THE EQUIPMENT; (2) THAT HE
HAS OBSERVED OR PERCEIVED FACTS FROM WHICH THE PRESENCE OF THE
EQUIPMENT MAY REASONABLY BE INFERRED; AND (3) THAT HE HAS OBTAINED THE
INFORMATION FROM SOMEONE ELSE.  IF (1) IS TRUE, THE AFFIDAVIT IS GOOD. 
BUT IN (2), THE AFFIDAVIT IS INSUFFICIENT UNLESS THE PERCEIVED FACTS
ARE GIVEN, FOR IT IS THE MAGISTRATE, NOT THE OFFICER, WHO IS TO JUDGE
THE EXISTENCE OF PROBABLE CAUSE.  AGUILAR V. TEXAS, 378 U.S. 108
(1964); GIORDENELLO V. UNITED STATES, 357 U.S. 480, 486 (1958); JOHNSON
V. UNITED STATES, 333 U.S. 10, 14 (1948).  WITH RESPECT TO (3), WHERE
THE OFFICER'S INFORMATION IS HEARSAY, NO WARRANT SHOULD ISSUE ABSENT
GOOD CAUSE FOR CREDITING THAT HEARSAY.  BECAUSE AN AFFIDAVIT ASSERTING,
WITHOUT MORE, THE LOCATION OF GAMBLING EQUIPMENT AT A PARTICULAR
ADDRESS DOES NOT CLAIM PERSONAL OBSERVATION OF ANY OF THE FACTS BY THE
OFFICER, AND BECAUSE OF THE LIKELIHOOD THAT THE INFORMATION CAME FROM
AN UNIDENTIFIED THIRD PARTY, AFFIDAVITS OF THIS TYPE ARE UNACCEPTABLE. 

NEITHER SHOULD THE WARRANT ISSUE IF THE OFFICER STATES THAT THERE IS
GAMBLING EQUIPMENT IN A PARTICULAR APARTMENT AND THAT HIS INFORMATION
COMES FROM AN INFORMANT, NAMED OR UNNAMED, SINCE THE HONESTY OF THE
INFORMANT AND THE BASIS FOR HIS REPORT ARE UNKNOWN.  NOR WOULD THE
MISSING ELEMENTS BE COMPLETELY SUPPLIED BY THE OFFICER'S OATH THAT THE
INFORMANT HAS OFTEN FURNISHED RELIABLE INFORMATION IN THE PAST.  THIS
ATTESTS TO THE HONESTY OF THE INFORMANT, BUT AGUILAR V. TEXAS, SUPRA,
REQUIRES SOMETHING MORE-- DID THE INFORMATION COME FROM OBSERVATION, OR
DID THE INFORMANT IN TURN RECEIVE IT FROM ANOTHER?  ABSENT ADDITIONAL
FACTS FOR BELIEVING THE INFORMANT'S REPORT, HIS ASSERTION STANDS NO
BETTER THAN THE OATH OF THE OFFICER TO THE SAME EFFECT.  INDEED, IF THE
AFFIDAVIT OF AN OFFICER, KNOWN BY THE MAGISTRATE TO BE HONEST AND
EXPERIENCED, STATING THAT GAMBLING EQUIPMENT IS LOCATED IN A CERTAIN
BUILDING IS UNACCEPTABLE, IT WOULD BE QUIXOTIC IF A SIMILAR STATEMENT
FROM AN HONEST INFORMANT WERE FOUND TO FURNISH PROBABLE CAUSE.  A
STRONG ARGUMENT CAN BE MADE THAT BOTH SHOULD BE ACCEPTABLE UNDER THE
FOURTH AMENDMENT, BUT UNDER OUR CASES NEITHER IS.  THE PAST RELIABILITY
OF THE INFORMANT CAN NO MORE FURNISH PROBABLE CAUSE FOR BELIEVING HIS
CURRENT REPORT THAN CAN PREVIOUS EXPERIENCE WITH THE OFFICER HIMSELF. 

IF THE AFFIDAVIT RESTS ON HEARSAY-- AN INFORMANT'S REPORT-- WHAT IS
NECESSARY UNDER AGUILAR IS ONE OF TWO THINGS:  THE INFORMANT MUST
DECLARE EITHER (1) THAT HE HAS HIMSELF SEEN OR PERCEIVED THE FACT OR
FACTS ASSERTED; OR (2) THAT HIS INFORMATION IS HEARSAY, BUT THERE IS
GOOD REASON FOR BELIEVING IT-- PERHAPS ONE OF THE USUAL GROUNDS FOR
CREDITING HEARSAY INFORMATION.  THE FIRST PRESENTS FEW PROBLEMS:  SINCE
THE REPORT, ALTHOUGH HEARSAY, PURPORTS TO BE FIRST-HAND OBSERVATION,
REMAINING DOUBT CENTERS ON THE HONESTY OF THE INFORMANT, AND THAT WORRY
IS DISSIPATED BY THE OFFICER'S PREVIOUS EXPERIENCE WITH THE INFORMANT. 
THE OTHER BASIS FOR ACCEPTING THE INFORMANT'S REPORT IS MORE
COMPLICATED.  BUT IF, FOR EXAMPLE, THE INFORMER'S HEARSAY COMES FROM
ONE OF THE ACTORS IN THE CRIME IN THE NATURE OF ADMISSION AGAINST
INTEREST, THE AFFIDAVIT GIVING THIS INFORMATION SHOULD BE HELD
SUFFICIENT.     I AM INCLINED TO AGREE WITH THE MAJORITY THAT THERE ARE
LIMITED SPECIAL CIRCUMSTANCES IN WHICH AN "HONEST" INFORMANT'S REPORT,
IF SUFFICIENTLY DETAILED, WILL IN EFFECT VERIFY ITSELF-- THAT IS, THE
MAGISTRATE WHEN CONFRONTED WITH SUCH DETAIL COULD REASONABLY INFER THAT
THE INFORMANT HAD GAINED HIS INFORMATION IN A RELIABLE WAY.  SEE ANTE,
AT 417.  DETAILED INFORMATION MAY SOMETIMES IMPLY THAT THE INFORMANT
HIMSELF HAS OBSERVED THE FACTS.  SUPPOSE AN INFORMANT WITH WHOM AN
OFFICER HAS HAD SATISFACTORY EXPERIENCE STATES THAT THERE IS GAMBLING
EQUIPMENT IN THE LIVING ROOM OF A SPECIFIED APARTMENT AND DESCRIBES IN
DETAIL NOT ONLY THE EQUIPMENT ITSELF BUT ALSO THE APPOINTMENTS AND
FURNISHINGS IN THE APARTMENT.  DETAIL LIKE THIS, IF TRUE AT ALL, MUST
REST ON PERSONAL OBSERVATION EITHER OF THE INFORMANT OR OF SOMEONE
ELSE.  IF THE LATTER, WE KNOW NOTHING OF THE THIRD PERSON'S HONESTY OR
SOURCES; HE MAY BE MAKING A WHOLLY FALSE REPORT.  BUT IT IS ARGUABLE
THAT ON THESE FACTS IT WAS THE INFORMANT HIMSELF WHO HAS PERCEIVED THE
FACTS, FOR THE INFORMATION REPORTED IS NOT USUALLY THE SUBJECT OF
CASUAL, DAY-TO-DAY CONVERSATION.  BECAUSE THE INFORMANT IS HONEST AND
IT IS PROBABLE THAT HE HAS VIEWED THE FACTS, THERE IS PROBABLE CAUSE
FOR THE ISSUANCE OF A WARRANT. 

SO TOO IN THE SPECIAL CIRCUMSTANCES OF DRAPER V. UNITED STATES, 358
U.S. 307 (1959), THE KIND OF INFORMATION RELATED BY THE INFORMANT IS
NOT GENERALLY SENT AHEAD OF A PERSON'S ARRIVAL IN A CITY EXCEPT TO
THOSE WHO ARE INTIMATELY CONNECTED WITH MAKING CAREFUL ARRANGEMENTS FOR
MEETING HIM.  THE INFORMANT, POSITED AS HONEST, SOMEHOW HAD THE
REPORTED FACTS, VERY LIKELY FROM ONE OF THE ACTORS IN THE PLAN, OR AS
ONE OF THEM HIMSELF.  THE MAJORITY'S SUGGESTION IS THAT A WARRANT COULD
HAVE BEEN OBTAINED BASED ONLY ON THE INFORMER'S REPORT.  I AM INCLINED
TO AGREE, ALTHOUGH IT SEEMS QUITE PLAIN THAT IF IT MAY BE SO EASILY
INFERRED FROM THE AFFIDAVIT THAT THE INFORMANT HAS HIMSELF OBSERVED THE
FACTS OR HAS THEM FROM AN ACTOR IN THE EVENT, NO POSSIBLE HARM COULD
COME FROM REQUIRING A STATEMENT TO THAT EFFECT, THEREBY REMOVING THE
DIFFICULT AND RECURRING QUESTIONS WHICH ARISE IN SUCH SITUATIONS. 

OF COURSE, DRAPER ITSELF DID NOT PROCEED ON THIS BASIS.  INSTEAD,
THE COURT POINTED OUT THAT WHEN THE OFFICER SAW A PERSON GETTING OFF
THE TRAIN AT THE SPECIFIED TIME, DRESSED AND CONDUCTING HIMSELF
PRECISELY AS THE INFORMANT HAD PREDICTED, ALL BUT THE CRITICAL FACT
WITH RESPECT TO POSSESSING NARCOTICS HAD THEN BEEN VERIFIED AND FOR
THAT REASON THE OFFICER HAD "REASONABLE GROUNDS" TO BELIEVE ALSO THAT
DRAPER WAS CARRYING NARCOTICS.  UNQUESTIONABLY, VERIFICATION OF ARRIVAL
TIME, DRESS, AND GAIT REINFORCED THE HONESTY OF THE INFORMANT-- HE HAD
NOT REPORTED A MADE-UP STORY.  BUT IF WHAT DRAPER STANDS FOR IS THAT
THE EXISTENCE OF THE TENTH AND CRITICAL FACT IS MADE SUFFICIENTLY
PROBABLE TO JUSTIFY THE ISSUANCE OF A WARRANT BY VERIFYING NINE OTHER
FACTS COMING FROM THE SAME SOURCE, I HAVE MY DOUBTS ABOUT THAT CASE. 

IN THE FIRST PLACE, THE PROPOSITION IS NOT THAT THE TENTH FACT MAY
BE LOGICALLY INFERRED FROM THE OTHER NINE OR THAT THE TENTH FACT IS
USUALLY FOUND IN CONJUNCTION WITH THE OTHER NINE.  NO ONE WOULD SUGGEST
THAT JUST ANYONE GETTING OFF THE 10:30 TRAIN DRESSED AS DRAPER WAS,
WITH A BRISK WALK AND CARRYING A ZIPPER BAG, SHOULD BE ARRESTED FOR
CARRYING NARCOTICS.  THE THRUST OF DRAPER IS NOT THAT THE VERIFIED
FACTS HAVE INDEPENDENT SIGNIFICANCE WITH RESPECT TO PROOF OF THE
TENTH.  THE ARGUMENT INSTEAD RELATES TO THE RELIABILITY OF THE SOURCE:
BECAUSE AN INFORMANT IS RIGHT ABOUT SOME THINGS, HE IS MORE PROBABLY
RIGHT ABOUT OTHER FACTS, USUALLY THE CRITICAL, UNVERIFIED FACTS. 

BUT THE COURT'S CASES HAVE ALREADY REJECTED FOR FOURTH AMENDMENT
PURPOSES THE NOTION THAT THE PAST RELIABILITY OF AN OFFICER IS
SUFFICIENT REASON FOR BELIEVING HIS CURRENT ASSERTIONS.  NOR WOULD IT
SUFFICE, I SUPPOSE, IF A RELIABLE INFORMANT STATES THERE IS GAMBLING
EQUIPMENT IN APARTMENT 607 AND THEN PROCEEDS TO DESCRIBE IN DETAIL
APARTMENT 201, A DESCRIPTION WHICH IS VERIFIED BEFORE APPLYING FOR THE
WARRANT.  HE WAS RIGHT ABOUT 201, BUT THAT HARDLY MAKES HIM MORE
BELIEVABLE ABOUT THE EQUIPMENT IN 607.  BUT WHAT IF HE STATES THAT
THERE ARE NARCOTICS LOCKED IN A SAFE IN APARTMENT 300, WHICH IS
DESCRIBED IN DETAIL, AND THE APARTMENT MANAGER VERIFIES EVERYTHING BUT
THE CONTENTS OF THE SAFE?  I DOUBT THAT THE REPORT ABOUT THE NARCOTICS
IS MADE APPRECIABLY MORE BELIEVABLE BY THE VERIFICATION.  THE INFORMANT
COULD STILL HAVE GOTTEN HIS INFORMATION CONCERNING THE SAFE FROM OTHERS
ABOUT WHOM NOTHING IS KNOWN OR COULD HAVE INFERRED THE PRESENCE OF
NARCOTICS FROM CIRCUMSTANCES WHICH A MAGISTRATE WOULD FIND
UNACCEPTABLE. 

THE TENSION BETWEEN DRAPER AND THE NATHANSON-AGUILAR LINE OF CASES
IS EVIDENT FROM THE COURSE FOLLOWED BY THE MAJORITY OPINION.  FIRST, IT
IS HELD THAT THE REPORT FROM A RELIABLE INFORMANT THAT SPINELLI IS
USING TWO TELEPHONES WITH SPECIFIED NUMBERS TO CONDUCT A GAMBLING
BUSINESS PLUS SPINELLI'S REPUTATION IN POLICE CIRCLES AS A GAMBLER DOES
NOT ADD UP TO PROBABLE CAUSE.  THIS IS WHOLLY CONSISTENT WITH AGUILAR
AND NATHANSON:  THE INFORMANT DID NOT REVEAL WHETHER HE HAD PERSONALLY
OBSERVED THE FACTS OR HEARD THEM FROM ANTOHER AND, IF THE LATTER, NO
BASIS FOR CREDITING THE HEARSAY WAS PRESENTED.  NOR WERE THE FACTS, AS
MR. JUSTICE HARLAN SAYS, OF SUCH A NATURE THAT THEY NORMALLY WOULD BE
OBTAINABLE ONLY BY THE PERSONAL OBSERVATION OF THE INFORMANT HIMSELF. 
THE POLICE, HOWEVER, DID NOT STOP WITH THE INFORMANT'S REPORT. 
INDEPENDENTLY, THEY ESTABLISHED THE EXISTENCE OF TWO PHONES HAVING THE
GIVEN NUMBERS AND LOCATED THEM IN AN APARTMENT HOUSE WHICH SPINELLI WAS
REGULARLY FREQUENTING AWAY FROM HIS HOME.  THERE REMAINED LITTLE
QUESTION BUT THAT SPINELLI WAS USING THE PHONES, AND IT WAS A FAIR
INFERENCE THAT THE USE WAS NOT FOR DOMESTIC BUT FOR BUSINESS PURPOSES. 
THE INFORMANT HAD CLAIMED THE BUSINESS INVOLVED GAMBLING.  SINCE HIS
SPECIFIC INFORMATION ABOUT SPINELLI USING TWO PHONES WITH PARTICULAR
NUMBERS HAD BEEN VERIFIED, DID NOT HIS ALLEGATION ABOUT GAMBLING
THEREBY BECOME SUFFICIENTLY MORE BELIEVABLE IF THE DRAPER PRINCIPLE IS
TO BE GIVEN ANY SCOPE AT ALL?  I WOULD THINK SO, PARTICULARLY SINCE THE
INFORMATION FROM THE INFORMANT WHICH WAS VERIFIED WAS NOT NEUTRAL,
IRRELEVANT INFORMATION BUT WAS MATERIAL TO PROVING THE GAMBLING
ALLEGATION:  TWO PHONES WITH DIFFERENT NUMBERS IN AN APARTMENT USED
AWAY FROM HOME INDICATES A BUSINESS USE IN AN OPERATION, LIKE
BOOKMAKING, WHERE MULTIPLE PHONES ARE NEEDED.  THE DRAPER APPROACH
WOULD REASONABLY JUSTIFY THE ISSUANCE OF A WARRANT IN THIS CASE,
PARTICULARLY SINCE THE POLICE HAD SOME AWARENESS OF SPINELLI'S PAST
ACTIVITIES.  THE MAJORITY, HOWEVER, WHILE SEEMINGLY EMBRACING DRAPER,
CONFINES THAT CASE TO ITS OWN FACTS.  PENDING FULL-SCALE
RECONSIDERATION OF THAT CASE, ON THE ONE HAND, OR OF THE NATHANSON
AGUILAR CASES ON THE OTHER, I JOIN THE OPINION OF THE COURT AND THE
JUDGMENT OF REVERSAL, ESPECIALLY SINCE A VOTE TO AFFIRM WOULD PRODUCE
AN EQUALLY DIVIDED COURT. 

MR. JUSTICE BLACK, DISSENTING. 

IN MY VIEW, THIS COURT'S DECISION IN AGUILAR V. TEXAS, 378 U.S. 108
(1964), WAS BAD ENOUGH.  THAT DECISION WENT VERY FAR TOWARD ELEVATING
THE MAGISTRATE'S HEARING FOR ISSUANCE OF A SEARCH WARRANT TO A FULL
FLEDGED TRIAL, WHERE WITNESSES MUST BE BROUGHT FORWARD TO ATTEST
PERSONALLY TO ALL THE FACTS ALLEGED.  BUT NOT CONTENT WITH THIS, THE
COURT TODAY EXPANDS AGUILAR TO ALMOST UNBELIEVABLE PROPORTIONS.  OF
COURSE, IT WOULD STRENGTHEN THE PROBABLE-CAUSE PRESENTATION IF
EYEWITNESSES COULD TESTIFY THAT THEY SAW THE DEFENDANT COMMIT THE
CRIME.  IT WOULD BE STRONGER STILL IF THESE WITNESSES COULD EXPLAIN IN
DETAIL THE NATURE OF THE SENSUAL PERCEPTIONS ON WHICH THEY BASED THEIR
"CONCLUSION" THAT THE PERSON THEY HAD SEEN WAS THE DEFENDANT AND THAT
HE WAS RESPONSIBLE FOR THE EVENTS THEY OBSERVED.  NOTHING IN OUR
CONSTITUTION, HOWEVER, REQUIRES THAT THE FACTS BE ESTABLISHED WITH THAT
DEGREE OF CERTAINTY AND WITH SUCH ELABORATE SPECIFICITY BEFORE A
POLICEMAN CAN BE AUTHORIZED BY A DISINTERESTED MAGISTRATE TO CONDUCT A
CAREFULLY LIMITED SEARCH. 

THE FOURTH AMENDMENT PROVIDES THAT "NO WARRANTS SHALL ISSUE, BUT
UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED."  IN THIS CASE A SEARCH WARRANT WAS ISSUED SUPPORTED BY AN OATH
AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED AND THE THINGS TO
BE SEIZED.  THE SUPPORTING OATH WAS THREE PRINTED PAGES AND THE FULL
TEXT OF IT IS INCLUDED IN AN APPENDIX TO THE COURT'S OPINION.  THE
MAGISTRATE, I THINK PROPERLY, HELD THE INFORMATION SET FORTH SUFFICIENT
FACTS TO SHOW "PROBABLE CAUSE" THAT THE DEFENDANT WAS VIOLATING THE
LAW.  SIX MEMBERS OF THE COURT OF APPEALS ALSO AGREED THAT THE
AFFIDAVIT WAS SUFFICIENT TO SHOW PROBABLE CAUSE.  A MAJORITY OF THIS
COURT TODAY HOLDS, HOWEVER, THAT THE MAGISTRATE AND ALL OF THESE JUDGES
WERE WRONG.  IN DOING SO, THEY SUBSTITUTE THEIR OWN OPINION FOR THAT OF
THE LOCAL MAGISTRATE AND THE CIRCUIT JUDGES, AND REJECT THE EN BANC
FACTUAL CONCLUSION OF THE EIGHTH CIRCUIT AND REVERSE THE JUDGMENT BASED
UPON THAT FACTUAL CONCLUSION.  I CANNOT JOIN IN ANY SUCH DISPOSITION OF
AN ISSUE SO VITAL TO THE ADMINISTRATION OF JUSTICE, AND DISSENT AS
VIGOROUSLY AS I CAN. 

I REPEAT MY BELIEF THAT THE AFFIDAVIT GIVEN THE MAGISTRATE WAS MORE
THAN AMPLE TO SHOW PROBABLE CAUSE OF THE PETITIONER'S GUILT.  THE
AFFIDAVIT METICULOUSLY SET OUT FACTS SUFFICIENT TO SHOW THE FOLLOWING: 

1.  THE PETITIONER HAD BEEN SHOWN GOING TO AND COMING FROM A ROOM IN
AN APARTMENT WHICH CONTAINED TWO TELEPHONES LISTED UNDER THE NAME OF
ANOTHER PERSON.  NOTHING IN THE RECORD INDICATES THAT THE APARTMENT WAS
OF THAT LARGE AND LUXURIOUS TYPE WHICH COULD ONLY BE OCCUPIED BY A
PERSON TO WHOM IT WOULD BE A "PETTY LUXURY" TO HAVE TWO SEPARATE
TELEPHONES, WITH DIFFERENT NUMBERS, BOTH LISTED UNDER THE NAME OF A
PERSON WHO DID NOT LIVE THERE. 

2.  THE PETITIONER'S CAR HAD BEEN OBSERVED PARKED IN THE APARTMENT'S
PARKING LOT.  THIS FACT WAS, OF COURSE, HIGHLY RELEVANT IN SHOWING THAT
THE PETITIONER WAS EXTREMELY INTERESTED IN SOME ENTERPRISE WHICH WAS
LOCATED IN THE APARTMENT. 

3.  THE FBI HAD BEEN INFORMED BY A RELIABLE INFORMANT THAT THE
PETITIONER WAS ACCEPTING WAGERING INFORMATION BY TELEPHONES-- THE
PARTICULAR TELEPHONES LOCATED IN THE APARTMENT THE DEFENDANT HAD BEEN
REPEATEDLY VISITING.  UNLESS THE COURT, GOING BEYOND THE REQUIREMENTS
OF THE FOURTH AMENDMENT, WISHES TO REQUIRE MAGISTRATES TO HOLD TRIALS
BEFORE ISSUING WARRANTS, IT IS NOT NECESSARY-- AS THE COURT HOLDS-- TO
HAVE THE AFFIANT EXPLAIN "THE UNDERLYING CIRCUMSTANCES FROM WHICH THE
INFORMER CONCLUDED THAT SPINELLI WAS RUNNING A BOOKMAKING OPERATION." 
ANTE, AT 416. 

4.  THE PETITIONER WAS KNOWN BY FEDERAL AND LOCAL LAW ENFORCEMENT
AGENTS AS A BOOKMAKER AND AN ASSOCIATE OF GAMBLERS.  I CANNOT AGREE
WITH THE COURT THAT THIS KNOWLEDGE WAS ONLY A "BALD AND UNILLUMINATING
ASSERTION OF SUSPICION THAT IS ENTITLED TO NO WEIGHT IN APPRAISING THE
MAGISTRATE'S DECISION."  ANTE, AT 414.  ALTHOUGH THE STATEMENT IS
HEARSAY THAT MIGHT NOT BE ADMISSIBLE IN A REGULAR TRIAL, EVERYONE
KNOWS, UNLESS HE SHUTS HIS EYES TO THE REALITIES OF LIFE, THAT THIS IS
A RELEVANT FACT WHICH, TOGETHER WITH OTHER CIRCUMSTANCES, MIGHT
INDICATE A FACTUAL PROBABILITY THAT GAMBLING IS TAKING PLACE. 

THE FOREGOING FACTS SHOULD BE ENOUGH TO CONSTITUTE PROBABLE CAUSE
FOR ANYONE WHO DOES NOT BELIEVE THAT THE ONLY WAY TO OBTAIN A SEARCH
WARRANT IS TO PROVE BEYOND A REASONABLE DOUBT THAT A DEFENDANT IS
GUILTY.  EVEN AGUILAR, ON WHICH THE COURT RELIES, CANNOT SUPPORT THE
CONTRARY RESULT, AT LEAST AS THAT DECISION WAS WRITTEN BEFORE TODAY'S
MASSIVE ESCALATION OF IT.  IN AGUILAR THE COURT DEALT WITH AN AFFIDAVIT
THAT STATED ONLY: 

"AFFIANTS HAVE RECEIVED RELIABLE INFORMATION FROM A CREDIBLE PERSON
AND DO BELIEVE THAT HEROIN . . . AND OTHER NARCOTICS AND NARCOTIC
PARAPHERNALIA ARE BEING KEPT AT THE ABOVE DESCRIBED PREMISES FOR THE
PURPOSE OF SALE AND USE CONTRARY TO THE PROVISIONS OF THE LAW."  378
U.S.,AT 109. 

THE COURT HELD, OVER THE DISSENT OF MR. JUSTICE CLARK, MR. JUSTICE
STEWART, AND MYSELF, THAT THIS UNSUPPORTED CONCLUSION OF AN
UNIDENTIFIED INFORMANT PROVIDED NO BASIS FOR THE MAGISTRATE TO MAKE AN
INDEPENDENT JUDGMENT AS TO THE PERSUASIVENESS OF THE FACTS RELIED UPON
TO SHOW PROBABLE CAUSE.  HERE, OF COURSE, WE HAVE MUCH MORE, AND THE
COURT IN AGUILAR WAS CAREFUL TO POINT OUT THAT ADDITIONAL INFORMATION
OF THE KIND PRESENTED IN THE AFFIDAVIT BEFORE US NOW WOULD BE HIGHLY
RELEVANT: 

"IF THE FACT AND RESULTS OF SUCH A SURVEILLANCE HAD BEEN
APPROPRIATELY PRESENTED TO THE MAGISTRATE, THIS WOULD, OF COURSE,
PRESENT AN ENTIRELY DIFFERENT CASE."  378 U.S.,AT 109, N. 1. 

IN THE PRESENT CASE EVEN THE TWO-JUDGE MINORITY OF THE COURT BELOW
RECOGNIZED, AS THIS COURT SEEMS TO RECOGNIZE TODAY, THAT THIS
ADDITIONAL INFORMATION TOOK THE CASE BEYOND THE RULE OF AGUILAR.  SIX
OF THE OTHER CIRCUIT JUDGES DISAGREED WITH THE TWO DISSENTING JUDGES,
FINDING THAT ALL THE CIRCUMSTANCES CONSIDERED TOGETHER COULD SUPPORT A
REASONABLE JUDGMENT THAT GAMBLING PROBABLY WAS TAKING PLACE.  I FULLY
AGREE WITH THIS CAREFULLY CONSIDERED OPINION OF THE COURT BELOW.     I
REGRET TO SAY I CONSIDER TODAY'S DECISION AN INDEFENSIBLE DEPARTURE
FROM THE PRINCIPLES OF OUR FORMER CASES.  LESS THAN FOUR YEARS AGO WE
REAFFIRMED THESE PRINCIPLES IN UNITED STATES V. VENTRESCA, 380 U.S.
102, 108 (1965): 

"IF THE TEACHINGS OF THE COURT'S CASES ARE TO BE FOLLOWED AND THE
CONSTITUTIONAL POLICY SERVED, AFFIDAVITS FOR SEARCH WARRANTS . . . MUST
BE TESTED AND INTERPRETED BY MAGISTRATES AND COURTS IN A COMMON-SENSE
AND REALISTIC FASHION.  . . . TECHNICAL REQUIREMENTS OF ELABORATE
SPECIFICITY ONCE ENACTED UNDER COMMON LAW PLEADINGS HAVE NO PROPER
PLACE IN THIS AREA." 

SEE ALSO HUSTY V. UNITED STATES, 282 U.S. 694, 700-701 (1931). 

DEPARTURES OF THIS KIND ARE RESPONSIBLE FOR CONSIDERABLE UNEASINESS
IN OUR LOWER COURTS, AND I MUST SAY I AM DEEPLY TROUBLED BY THE
STATEMENTS OF JUDGE GIBSON IN THE COURT BELOW: 

     "I AM, INDEED, DISTURBED BY DECISION AFTER DECISION OF OUR

  COURTS WHICH PLACE INCREASINGLY TECHNICAL BURDENS UPON LAW

  ENFORCEMENT OFFICIALS.  I AM DISTURBED BY THESE DECISIONS THAT

  APPEAR TO RELENTLESSLY CHIP AWAY AT THE EVER NARROWING AREA OF

  EFFECTIVE POLICE OPERATION.  I BELIEVE THE HOLDINGS IN AGUILAR,

 AND RUGENDORF V. UNITED STATES, 376 U.S. 528 (1964) ARE

 SUFFICIENT TO PROTECT THE PRIVACY OF INDIVIDUALS FROM HASTILY

  CONCEIVED INTRUSIONS, AND I DO NOT THINK THE LIMITATIONS AND

  REQUIREMENTS ON THE ISSUANCE OF SEARCH WARRANTS SHOULD BE

  EXPANDED BY SETTING UP OVER-TECHNICAL REQUIREMENTS APPROACHING

  THE NOW DISCARDED PITFALLS OF COMMON LAW PLEADINGS.  MOREOVER, IF

  WE BECOME INCREASINGLY TECHNICAL AND RIGID IN OUR DEMANDS UPON

  POLICE OFFICERS, I FEAR WE MAKE IT INCREASINGLY EASY FOR

  CRIMINALS TO OPERATE, DETECTED BUT UNPUNISHED.  I FEEL THE

  SIGNIFICANT MOVEMENT OF THE LAW BEYOND ITS PRESENT STATE IS

  UNWARRANTED, UNNEEDED, AND DANGEROUS TO LAW ENFORCEMENT

  EFFICIENCY."  (DISSENTING FROM PANEL OPINION.) 

THE COURT OF APPEALS IN THIS CASE TOOK A SENSIBLE VIEW OF THE FOURTH
AMENDMENT, AND I WOULD WHOLEHEARTEDLY AFFIRM ITS DECISION. 

MAPP V. OHIO, 367 U.S. 643, DECIDED IN 1961, HELD FOR THE FIRST TIME
THAT THE FOURTH AMENDMENT AND THE EXCLUSIONARY RULE OF WEEKS V. UNITED
STATES, 232 U.S. 383 (1914) ARE NOW APPLICABLE TO THE STATES.  THAT
AMENDMENT PROVIDES THAT SEARCH WARRANTS SHALL NOT BE ISSUED WITHOUT
PROBABLE CAUSE.  THE EXISTENCE OF PROBABLE CAUSE IS A FACTUAL MATTER
THAT CALLS FOR THE DETERMINATION OF A FACTUAL QUESTION.  WHILE NO
STATISTICS ARE IMMEDIATELY AVAILABLE, QUESTIONS OF PROBABLE CAUSE TO
ISSUE SEARCH WARRANTS AND TO MAKE ARRESTS ARE DOUBTLESS INVOLVED IN
MANY THOUSANDS OF CASES IN STATE COURTS.  ALL OF THOSE PROBABLE-CAUSE
STATE CASES ARE NOW POTENTIALLY REVIEWABLE BY THIS COURT.  IT IS, OF
COURSE, PHYSICALLY IMPOSSIBLE FOR THIS COURT TO REVIEW THE EVIDENCE IN
ALL OR EVEN A SUBSTANTIAL PERCENTAGE OF THOSE CASES.  CONSEQUENTLY,
WHETHER DESIRABLE OR NOT, WE MUST INEVITABLY ACCEPT MOST OF THE FACT
FINDINGS OF THE STATE COURTS, PARTICULARLY WHEN, AS HERE IN A FEDERAL
CASE, BOTH THE TRIAL AND APPELLATE COURTS HAVE DECIDED THE FACTS THE
SAME WAY.  IT CANNOT BE SAID THAT THE TRIAL JUDGE AND SIX MEMBERS OF
THE COURT OF APPEALS COMMITTED FLAGRANT ERROR IN FINDING FROM EVIDENCE
THAT THE MAGISTRATE HAD PROBABLE CAUSE TO ISSUE THE SEARCH WARRANT
HERE.  IT SEEMS TO ME THAT THIS COURT WOULD BEST SERVE ITSELF AND THE
ADMINISTRATION OF JUSTICE BY ACCEPTING THE JUDGMENT OF THE TWO COURTS
BELOW.  AFTER ALL, THEY TOO ARE LAWYERS AND JUDGES, AND MUCH CLOSER TO
THE PRACTICAL, EVERYDAY AFFAIRS OF LIFE THAN WE ARE. 

NOTWITHSTANDING THE COURT'S BELIEF TO THE CONTRARY, I THINK THAT IN
HOLDING AS IT DOES, THE COURT DOES: 

"RETREAT FROM THE ESTABLISHED PROPOSITIONS THAT ONLY THE
PROBABILITY, AND NOT A PRIMA FACIE SHOWING, OF CRIMINAL ACTIVITY IS THE
STANDARD OF PROBABLE CAUSE, BECK V. OHIO, 379 U.S. 89, 96 (1964); THAT
AFFIDAVITS OF PROBABLE CAUSE ARE TESTED BY MUCH LESS RIGOROUS STANDARDS
THAN THOSE GOVERNING THE ADMISSIBILITY OF EVIDENCE AT TRIAL, MCCRAY V.
ILLINOIS, 386 U.S. 300, 311 (1967); THAT IN JUDGMENT PROBABLE CAUSE
ISSUING MAGISTRATES ARE NOT TO BE CONFINED BY NIGGARDLY LIMITATIONS OR
BY RESTRICTIONS ON THE USE OF THEIR COMMON SENSE, UNITED STATES V.
VENTRESCA, 380 U.S. 102, 108 (1965); AND THAT THEIR DETERMINATION OF
PROBABLE CAUSE SHOULD BE PAID GREAT DEFERENCE BY REVIEWING COURTS,
JONES V. UNITED STATES, 362 U.S. 257, 270-271 (1960)."  ANTE, AT 419. 
IN FACT, I BELIEVE THE COURT IS MOVING RAPIDLY, THROUGH COMPLEX
ANALYSES AND OBFUSCATORY LANGUAGE, TOWARD THE HOLDING THAT NO
MAGISTRATE CAN ISSUE A WARRANT UNLESS ACCORDING TO SOME UNKNOWN
STANDARD OF PROOF HE CAN BE PERSUADED THAT THE SUSPECT DEFENDANT IS
ACTUALLY GUILTY OF A CRIME.  I WOULD AFFIRM THIS CONVICTION. 

MR. JUSTICE FORTAS, DISSENTING. 

MY BROTHER HARLAN'S OPINION FOR THE COURT IS ANIMATED BY A
CONVICTION WHICH I SHARE THAT "(THE SECURITY OF ONE'S PRIVACY AGAINST
ARBITRARY INTRUSION BY THE POLICE-- WHICH IS AT THE CORE OF THE FOURTH
AMENDMENT-- IS BASIC TO A FREE SOCIETY."  WOLF V. COLORADO, 338 U.S.
25, 27 (1949). 

WE MAY WELL INSIST UPON A SYMPATHETIC AND EVEN AN INDULGENT VIEW OF
THE LATITUDE WHICH MUST BE ACCORDED TO THE POLICE FOR PERFORMANCE OF
THEIR VITAL TASK; BUT ONLY A FOOLISH OR CARELESS PEOPLE WILL DEDUCE
FROM THIS THAT THE PUBLIC WELFARE REQUIRES OR PERMITS THE POLICE TO
DISREGARD THE RESTRAINTS ON THEIR ACTIONS WHICH HISTORIC STRUGGLES FOR
FREEDOM HAVE DEVELOPED FOR THE PROTECTION OF LIBERTY AND DIGNITY OF
CITIZENS AGAINST ARBITRARY STATE POWER. 

AS JUSTICE JACKSON (DISSENTING) STATED IN BRINEGAR V. UNITED STATES,
338 U.S. 160, 180-181 (1949): 

     "(THE PROVISIONS OF THE FOURTH AMENDMENT) ARE NOT MERE

  SECOND-CLASS RIGHTS BUT BELONG IN THE CATALOG OF INDISPENSABLE

  FREEDOMS.  AMONG DEPRIVATIONS OF RIGHTS, NONE IS SO EFFECTIVE IN

  COWING A POPULATION, CRUSHING THE SPIRIT OF THE INDIVIDUAL AND

  PUTTING TERROR IN EVERY HEART.  UNCONTROLLED SEARCH AND SEIZURE

  IS ONE OF THE FIRST AND MOST EFFECTIVE WEAPONS IN THE ARSENAL OF

  EVERY ARBITRARY GOVERNMENT.  AND ONE NEED ONLY BRIEFLY TO HAVE

  DWELT AND WORKED AMONG A PEOPLE POSSESSED OF MANY ADMIRABLE

  QUALITIES BUT DEPRIVED OF THESE RIGHTS TO KNOW THAT THE HUMAN

  PERSONALTIY DETERIORATES AND DIGNITY AND SELF-RELIANCE DISAPPEAR

  WHERE HOMES, PERSONS AND POSSESSIONS ARE SUBJECT AT ANY HOUR TO

  UNHERALDED SEARCH AND SEIZURE BY THE POLICE." 

HISTORY /1/  TEACHES US THAT THIS PROTECTION REQUIRES THAT THE
JUDGMENT OF A JUDICIAL OFFICER BE INTERPOSED BETWEEN THE POLICE, HOT IN
PURSUIT OF THEIR APPOINTED TARGET, AND THE CITIZEN; /2/  THAT THE
JUDICIAL OFFICER MUST JUDGE AND NOT MERELY RUBBER-STAMP; AND THAT HIS
JUDGMENT MUST BE BASED UPON JUDICIALLY RELIABLE FACTS ADEQUATE TO
DEMONSTRATE THAT THE SEARCH IS JUSTIFIED BY THE PROBABILITY THAT IT
WILL YIELD THE FRUITS OR INSTRUMENTS OF CRIME-- OR, AS THIS COURT HAS
ONLY RECENTLY RULED, TANGIBLE EVIDENCE OF ITS COMMISSION.  /3/  THE
EXCEPTIONS TO THE REQUIREMENT OF A SEARCH WARRANT HAVE ALWAYS BEEN
NARROWLY RESTRICTED /4/  BECAUSE OF THIS COURT'S LONG-STANDING
AWARENESS OF THE FUNDAMENTAL ROLE OF THE MAGISTRATE'S JUDGMENT IN THE
PRESERVATION OF A PROPER BALANCE BETWEEN INDIVIDUAL FREEDOM AND STATE
POWER.  SEE TRUPIANO V. UNITED STATES, 334 U.S. 699, 700 (1948). 

TODAY'S DECISION DEALS, NOT WITH THE NECESSITY OF OBTAINING A
WARRANT PRIOR TO SEARCH, BUT WITH THE DIFFICULT PROBLEM OF THE NATURE
OF THE SHOWING THAT MUST BE MADE BEFORE THE MAGISTRATE TO JUSTIFY HIS
ISSUANCE OF A SEARCH WARRANT.  WHILE I DO NOT SUBSCRIBE TO THE
CRITICISM OF THE MAJORITY EXPRESSED BY MY BROTHER BLACK IN DISSENT, I
BELIEVE-- WITH ALL RESPECT-- THAT THE MAJORITY IS IN ERROR IN HOLDING
THAT THE AFFIDAVIT SUPPORTING THE WARRANT IN THIS CASE IS
CONSTITUTIONALLY INADEQUATE. 

THE AFFIDAVIT IS UNUSUALLY LONG AND DETAILED.  IN FACT, IT RECITES
SO MANY MINUTE AND DETAILED FACTS DEVELOPED IN THE COURSE OF
INVESTIGATION OF SPINELLI THAT ITS SUBSTANCE IS SOMEWHAT OBSCURED.  IT
IS PARADOXICAL THAT THIS VERY FULLNESS OF THE AFFIDAVIT MAY BE THE
SOURCE OF THE CONSTITUTIONAL INFIRMITY THAT THE MAJORITY FINDS.  STATED
IN LANGUAGE MORE DIRECT AND LESS CIRCUMSTANTIAL THAN THAT USED BY THE
FBI AGENT WHO EXECUTED THE AFFIDAVIT, IT SETS FORTH THAT THE FBI HAS
BEEN INFORMED THAT SPINELLI IS ACCEPITNG WAGERS BY MEANS OF TELEPHONES
NUMBERED WY4-0029 AND WY4-0136; THAT SPINELLI IS KNOWN TO THE AFFIANT
AGENT AND TO LAW ENFORCEMENT AGENCIES AS A BOOKMAKER; THAT TELEPHONES
NUMBERED WY4-0029 AND WY4-0136 ARE LOCATED IN A CERTAIN APARTMENT; THAT
SPINELLI WAS PLACED UNDER SURVEILLANCE AND HIS OBSERVED MOVEMENTS WERE
SUCH AS TO SHOW HIS USE OF THAT APARTMENT AND TO INDICATE THAT HE
FREQUENTED THE APARTMENT ON A REGULAR BASIS. 

AGUILAR V. TEXAS, 378 U.S. 108 (1964), HOLDS THAT THE REFERENCE IN
AN AFFIDAVIT TO INFORMATION DESCRIBED ONLY AS RECEIVED FROM "A
CONFIDENTIAL RELIABLE INFORMANT," STANDING ALONE, IS NOT AN ADEQUATE
BASIS FOR ISSUANCE OF A SEARCH WARRANT.  THE MAJORITY AGREES THAT THE
"FBI AFFIDAVIT IN THE PRESENT CASE IS MORE AMPLE THAN THAT IN AGUILAR,"
BUT CONCLUDES THAT IT IS NEVERTHELESS CONSTITUTIONALLY INADEQUATE. 
THE MAJORITY STATES THAT THE PRESENT AFFIDAVIT FAILS TO MEET THE "TWO
PRONGED TEST" OF AGUILAR BECAUSE (A) IT DOES NOT SET FORTH THE BASIS
FOR THE ASSERTION THAT THE INFORMER IS "RELIABLE" AND (B) IT FAILS TO
STATE THE "UNDERLYING CIRCUMSTANCES" UPON WHICH THE INFORMANT BASED HIS
CONCLUSION THAT SPINELLI WAS ENGAGED IN BOOKMAKING. 

THE MAJORITY ACKNOWLEDGES, HOWEVER, THAT ITS REFERENCE TO A "TWO
PRONGED TEST" SHOULD NOT BE UNDERSTOOD AS MEANING THAT AN AFFIDAVIT
DEFICIENT IN THESE RESPECTS IS NECESSARILY INADEQUATE TO SUPPORT A
SEARCH WARRANT.  OTHER FACTS AND CIRCUMSTANCES MAY BE ATTESTED WHICH
WILL SUPPLY THE EVIDENCE OF PROBABLE CAUSE NEEDED TO SUPPORT THE SEARCH
WARRANT.  ON THIS GENERAL STATEMENT WE ARE AGREED.  OUR DIFFERENCE IS
THAT I BELIEVE SUCH FACTS AND CIRCUMSTANCES ARE PRESENT IN THIS CASE,
AND THE MAJORITY ARRIVES AT THE OPPOSITE CONCLUSION. 

AGUILAR EXPRESSLY RECOGNIZED THAT IF, IN THAT CASE, THE AFFIDAVIT'S
CONCLUSORY REPORT OF THE INFORMANT'S STORY HAD BEEN SUPPLEMENTED BY
"THE FACT AND RESULTS OF . . . A SURVEILLANCE . . . THIS WOULD, OF
COURSE PRESENT AN ENTIRELY DIFFERENT CASE."  378 U.S.,AT 109, N. 1.  IN
THE PRESENT CASE, AS I VIEW IT, THE AFFIDAVIT SHOWED NOT ONLY RELEVANT
SURVEILLANCE, ENTITLED TO SOME PROBATIVE WEIGHT FOR PURPOSES OF THE
ISSUANCE OF A SEARCH WARRANT, BUT ALSO ADDITIONAL, SPECIFIC FACTS OF
SIGNIFICANCE AND ADEQUATE RELIABILITY:  THAT SPINELLI WAS USING TWO
TELEPHONE NUMBERS, IDENTIFIED BY AN "INFORMANT" AS BEING USED FOR
BOOKMAKING, IN HIS ILLEGAL OPERATIONS; THAT THESE TELEPHONES WERE IN AN
IDENTIFIED APARTMENT; AND THE SPINELLI, A KNOWN BOOKMATER, /5/
FREQUENTED THE APARTMENT.  CERTAINLY, THIS IS ENOUGH. 

A POLICEMAN'S AFFIDAVIT SHOULD NOT BE JUDGED AS AN ENTRY IN AN ESSAY
CONTEST.  IT IS NOT "ABRACADABRA."  /6/  AS THE MAJORITY RECOGNIZES, A
POLICEMAN'S AFFIDAVIT IS ENTITLED TO COMMON-SENSE EVALUATION.  SO
VIEWED, I CONCLUDE THAT THE JUDGMENT OF THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT SHOULD BE AFFIRMED. 

/1/  "THE KNOCK AT THE DOOR WHETHER BY DAY OR BY NIGHT, AS A PRELUDE
TO A SEARCH, WITHOUT AUTHORITY OF LAW BUT SOLELY ON THE AUTHORITY OF
THE POLICE, DID NOT NEED THE COMMENTARY OF RECENT HISTORY TO BE
CONDEMNED AS INCONSISTENT WITH THE CONCEPTION OF HUMAN RIGHTS ENSHRINED
IN THE HISTORY AND THE BASIC CONSTITUTIONAL DOCUMENTS OF ENGLISH
SPEAKING PEOPLES."  WOLF V. COLORADO, 338 U.S. 25, 28 (1949).  SEE
UNITED STATES V. RABINOWITZ, 339 U.S. 56, 69-70 (1950) (FRANKFURTER,
JR., DISSENTING).  SEE GENERALLY WITH RESPECT TO THE HISTORY OF THE
FOURTH AMENDMENT N. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION (1937). 

/2/  SEE JOHNSON V. UNITED STATES, 333 U.S. 10, 13-14 (1948). 

/3/  WARDEN V. HAYDEN, 387 U.S. 294 (1967). 

/4/  SEE JONES V. UNITED STATES, 357 U.S. 493, 499 (1958); WARDEN V.
HAYDEN, 387 U.S. 294, 311 (1967) (CONCURRING OPINION). 

/5/  ALTHOUGH SPINELLI'S REPUTATION STANDING ALONE WOULD NOT, OF
COURSE, JUSTIFY THE SEARCH, THIS COURT HAS HELD THAT SUCH A REPUTATION
MAY MAKE THE INFORMER'S REPORT "MUCH LESS SUBJECT TO SCEPTICISM THAN
WOULD BE SUCH A CHARGE AGAINST ONE WITHOUT SUCH A HISTORY."  JONES V.
UNITED STATES, 362 U.S. 257, 271 (1960). 

/6/  SEE TIME, INC. V. HILL, 385 U.S. 374, 418 (1967) (DISSENT)
(RELATING TO JURY INSTRUCTIONS). 

MR. JUSTICE STEWART, DISSENTING. 

FOR SUBSTANTIALLY THE REASONS STATED BY MY BROTHERS BLACK AND
FORTAS, I BELIEVE THE WARRANT IN THIS CASE WAS SUPPORTED BY A
SUFFICIENT SHOWING OF PROBABLE CAUSE.  I WOULD THEREFORE AFFIRM THE
JUDGMENT. 

IRL B. BARIS ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

JOSEPH J. CONNOLLY ARGUED THE CAUSE FOR THE UNITED STATES, PRO HAC
VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL VINSON, BEATRICE ROSENBERG, AND SIDNEY M. GLAZER. 
..END :



PRESBYTERIAN CHURCH V. HULL CHURCH, 393 U.S. 440 


       PRESBYTERIAN CHURCH IN THE UNITED STATES ET AL. V. MARY

           ELIZABETH BLUE HULL MEMORIAL PRESBYTERIAN CHURCH ET AL.

        CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

        NO. 71.  ARGUED DECEMBER 9-10, 1968.-- DECIDED JANUARY 27,

           1969. 


RESPONDENTS, TWO LOCAL CHURCHES, VOTED TO WITHDRAW FROM PETITIONER
GENERAL CHURCH WITH WHICH THEY HAD HAD A DOCTRINAL DISPUTE AND TO
RECONSTITUTE THEMSELVES AS AN AUTONOMOUS RELIGIOUS ORGANIZATION.  A
CHURCH TRIBUNAL PROCEEDED TO TAKE OVER RESPONDENTS' PROPERTY ON BEHALF
OF THE GENERAL CHURCH.  RESPONDENTS, WITHOUT APPEALING TO HIGHER CHURCH
TRIBUNALS, SUED IN THE GEORGIA STATE COURT TO ENJOIN THE GENERAL CHURCH
FROM TRESPASSING ON THE DISPUTED PROPERTY.  THE GENERAL CHURCH MOVED TO
DISMISS THE CROSS-CLAIMED FOR INJUNCTIVE RELIEF ON THE GROUND THAT
CIVIL COURTS HAD NO POWER TO DETERMINE WHETHER THE GENERAL CHURCH HAD
DEPARTED FROM ITS TENETS OF FAITH AND PRACTICE.  THE MOTION TO DISMISS
WAS DENIED AND THE CASE WAS SUBMITTED TO THE JURY ON THE THEORY THAT
GEORGIA LAW IMPLIES A TRUST OF LOCAL CHURCH PROPERTY FOR THE BENEFIT OF
THE GENERAL CHURCH ON CONDITION THAT THE GENERAL CHURCH ADHERE TO
DOCTRINAL TENETS EXISTING AT THE TIME OF AFFILIATION BY THE LOCAL
CHURCHES.  THE JURY, HAVING BEEN INSTRUCTED TO DETERMINE WHETHER THE
GENERAL CHURCH'S ACTIONS WERE A SUBSTANTIAL ABANDONMENT OF ITS ORIGINAL
DOCTRINES, RETURNED A VERDICT FOR RESPONDENTS; THE TRIAL JUDGE ISSUED
AN INJUNCTION AGAINST THE GENERAL CHURCH; AND THE GEORGIA SUPREME COURT
AFFIRMED.  HELD:  CIVIL COURTS CANNOT, CONSISTENTLY WITH FIRST
AMENDMENT PRINCIPLES, DETERMINE ECCLESIASTICAL QUESTIONS IN RESOLVING
PROPERTY DISPUTES; AND SINCE THE DEPARTURE-FROM-DOCTRINE ELEMENT OF
GEORGIA'S IMPLIED TRUST THEORY REQUIRES CIVIL COURTS TO WEIGH THE
SIGNIFICANCE AND MEANING OF RELIGIOUS DOCTRINES, IT CAN PLAY NO ROLE IN
JUDICIAL PROCEEDINGS.  PP. 445-452. 

242 GA. 61, 159 S.E.2D 690, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A CHURCH PROPERTY DISPUTE WHICH AROSE WHEN TWO LOCAL CHURCHES
WITHDREW FROM A HIERARCHICAL GENERAL CHURCH ORGANIZATION.  UNDER
GEORGIA LAW THE RIGHT TO THE PROPERTY PREVIOUSLY USED BY THE LOCAL
CHURCHES WAS MADE TO TURN ON A CIVIL COURT JURY DECISION AS TO WHETHER
THE GENERAL CHURCH ABANDONED OR DEPARTED FROM THE TENETS OF FAITH AND
PRACTICE IT HELD AT THE TIME THE LOCAL CHURCHES AFFILIATED WITH IT.
THE QUESTION PRESENTED IS WHETHER THE RESTRAINTS OF THE FIRST
AMENDMENT, AS APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT,
PERMIT A CIVIL COURT TO AWARD CHURCH PROPERTY ON THE BASIS OF THE
INTERPRETATION AND SIGNIFICANCE THE CIVIL COURT ASSIGNS TO ASPECTS OF
CHURCH DOCTRINE. 

PETITIONER, PRESBYTERIAN CHURCH IN THE UNITED STATES, IS AN
ASSOCIATION OF LOCAL PRESBYTERIAN CHURCHES GOVERNED BY A HIERARCHICAL
STRUCTURE OF TRIBUNALS WHICH CONSISTS OF, IN ASCENDING ORDER, (1) THE
CHURCH SESSION, COMPOSED OF THE ELDERS OF THE LOCAL CHURCH; (2) THE
PRESBYTERY, COMPOSED OF SEVERAL CHURCHES IN A GEOGRAPHICAL AREA; (3)
THE SYNOD, GENERALLY COMPOSED OF ALL PRESBYTERIES WITHIN A STATE; AND
(4) THE GENERAL ASSEMBLY, THE HIGHEST GOVERNING BODY. 

A DISPUTE AROSE BETWEEN PETITIONER, THE GENERAL CHURCH, AND TWO
LOCAL CHURCHES IN SAVANNAH, GEORGIA-- THE RESPONDENTS, HULL MEMORIAL
PRESBYTERIAN CHURCH AND EASTERN HEIGHTS PRESBYTERIAN CHURCH-- OVER
CONTROL OF THE PROPERTIES USED UNTIL THEN BY THE LOCAL CHURCHES.  IN
1966, THE MEMBERSHIP OF THE LOCAL CHURCHES, IN THE BELIEF THAT CERTAIN
ACTIONS AND PRONOUNCEMENTS OF THE GENERAL CHURCH WERE VIOLATIONS OF
THAT ORGANIZATION'S CONSTITUTION AND DEPARTURES FROM THE DOCTRINE AND
PRACTICE IN FORCE AT THE TIME OF AFFILIATION, /1/  VOTED TO WITHDRAW
FROM THE GENERAL CHURCH AND TO RECONSTITUTE THE LOCAL CHURCHES AS AN
AUTONOMOUS PRESBYTERIAN ORGANIZATION.  THE MINISTERS OF THE TWO
CHURCHES RENOUNCED THE GENERAL CHURCH'S JURISDICTION AND AUTHORITY OVER
THEM, AS DID ALL BUT TWO OF THE RULING ELDERS.  IN RESPONSE, THE
GENERAL CHURCH, THROUGH THE PRESBYTERY OF SAVANNAH, ESTABLISHED AN
ADMINISTRATIVE COMMISSION TO SEEK A CONCILIATION.  THE DISSIDENT LOCAL
CHURCHMEN REMAINED STEADFAST; CONSEQUENTY, THE COMMISSION ACKNOWLEDGED
THE WITHDRAWAL OF THE LOCAL LEADERSHIP AND PROCEEDED TO TAKE OVER THE
LOCAL CHURCHES' PROPERTY ON BEHALF OF THE GENERAL CHURCH UNTIL NEW
LOCAL LEADERSHIP COULD BE APPOINTED. 

THE LOCAL CHURCHMEN MADE NO EFFORT TO APPEAL THE COMMISSION'S ACTION
TO HIGHER CHURCH TRIBUNALS-- THE SYNOD OF GEORGIA OR THE GENERAL
ASSEMBLY.  INSTEAD, THE CHURCHES FILED SEPARATE SUITS IN THE SUPERIOR
COURT OF CHATHAM COUNTY TO ENJOIN THE GENERAL CHURCH FROM TRESPASSING
ON THE DISPUTED PROPERTY, TITLE TO WHICH WAS IN THE LOCAL CHURCHES. 
THE CASES WERE CONSOLIDATED FOR TRIAL.  THE GENERAL CHURCH MOVED TO
DISMISS THE ACTIONS AND CROSS-CLAIMED FOR INJUNCTIVE RELIEF IN ITS OWN
BEHALF ON THE GROUND THAT CIVIL COURTS WERE WITHOUT POWER TO DETERMINE
WHETHER THE GENERAL CHURCH HAD DEPARTED FROM ITS TENETS OF FAITH AND
PRACTICE.  THE MOTION TO DISMISS WAS DENIED, AND THE CASE WAS SUBMITTED
TO THE JURY ON THE THEORY THAT GEORGIA LAW IMPLIES A TRUST OF LOCAL
CHURCH PROPERTY FOR THE BENEFIT OF THE GENERAL CHURCH ON THE SOLE
CONDITION THAT THE GENERAL CHURCH ADHERE TO ITS TENETS OF FAITH AND
PRACTICE EXISTING AT THE TIME OF AFFILIATION BY THE LOCAL CHURCHES. 
/2/  THUS, THE JURY WAS INSTRUCTED TO DETERMINE WHETHER THE ACTIONS OF
THE GENERAL CHURCH "AMOUNT TO A FUNDAMENTAL OR SUBSTANTIAL ABANDONMENT
OF THE ORIGINAL TENETS AND DOCTRINES OF THE (GENERAL CHURCH), SO THAT
THE NEW TENETS AND DOCTRINES ARE UTTERLY VARIANT FROM THE PURPOSES FOR
WHICH THE (GENERAL CHURCH) WAS FOUNDED."  THE JURY RETURNED A VERDICT
FOR THE LOCAL CHURCHES, AND THE TRIAL JUDGE THEREUPON DECLARED THAT THE
IMPLIED TRUST HAD TERMINATED AND ENJOINED THE GENERAL CHURCH FROM
INTERFERING WITH THE USE OF THE PROPERTY IN QUESTION.  THE SUPREME
COURT OF GEORGIA AFFIRMED, 224 GA. 61, 159 S.E.2D 690 (1968).  WE
GRANTED CERTIORARI TO CONSIDER THE FIRST AMENDMENT QUESTIONS RAISED. 
/3/  392 U.S. 903 (1968).  WE REVERSE. 

IT IS OF COURSE TRUE THAT THE STATE HAS A LEGITIMATE INTEREST IN
RESOLVING PROPERTY DISPUTES, AND THAT A CIVIL COURT IS A PROPER FORUM
FOR THAT RESOLUTION.  SPECIAL PROBLEMS ARISE, HOWEVER, WHEN THESE
DISPUTES IMPLICATE CONTROVERSIES OVER CHURCH DOCTRINE AND PRACTICE. 
THE APPROACH OF THIS COURT IN SUCH CASES WAS ORIGINALLY DEVELOPED IN
WATSON V. JONES 13 WALL.  679 (1872), A PRE-ERIE R. CO. V. THOMPKINS
DIVERSITY DECISION DECIDED BEFORE THE APPLICATION OF THE FIRST
AMENDMENT TO THE STATES BUT NONETHELESS INFORMED BY FIRST AMENDMENT
CONSIDERATIONS.  /4/  THERE, AS HERE, CIVIL COURTS WERE ASKED TO
RESOLVE A PROPERTY DISPUTE BETWEEN A NATIONAL PRESBYTERIAN ORGANIZATION
AND LOCAL CHURCHES OF THAT ORGANIZATION.  THERE, AS HERE, THE DISPUTES
AROSE OUT OF A CONTROVERSY OVER CHURCH DOCTRINE.  THERE, AS HERE, THE
COURT WAS ASKED TO DECREE THE TERMINATION OF AN IMPLIED TRUST BECAUSE
OF DEPARTURES FROM DOCTRINE BY THE NATIONAL ORGANIZATION.  THE WATSON
COURT REFUSED, POINTING OUT THAT IT WAS WHOLLY INCONSISTENT WITH THE
AMERICAN CONCEPT OF THE RELATIONSHIP BETWEEN CHURCH AND STATE TO PERMIT
CIVIL COURTS TO DETERMINE ECCLESIASTICAL QUESTIONS.  IN LANGUAGE WHICH
HAS A CLEAR CONSTITUTIONAL RING, THE COURT SAID 

     "IN THIS COUNTRY THE FULL AND FREE RIGHT TO ENTERTAIN ANY

  RELIGIOUS BELIEF, TO PRACTICE ANY RELIGIOUS PRINCIPLE, AND TO

  TEACH ANY RELIGIOUS DOCTRINE WHICH DOES NOT VIOLATE THE LAWS OF

  MORALITY AND PROPERTY, AND WHICH DOES NOT INFRINGE PERSONAL

  RIGHTS, IS CONCEDED TO ALL.  THE LAW KNOWS NO HERESY, AND IS

  COMMITTED TO THE SUPPORT OF NO DOGMA, THE ESTABLISHMENT OF NO

  SECT.  . . . ALL WHO UNITE THEMSELVES TO SUCH A BODY (THE GENERAL

  CHURCH) DO SO WITH AN IMPLIED CONSENT TO (ITS) GOVERNMENT, AND

  ARE BOUND TO SUBMIT TO IT.  BUT IT WOULD BE A VAIN CONSENT AND

  WOULD LEAD TO THE TOTAL SUBVERSION OF SUCH RELIGIOUS BODIES, IF

  ANY ONE AGGRIEVED BY ONE OF THEIR DECISIONS COULD APPEAL TO THE

  SECULAR COURTS AND HAVE THEM (SIC) REVERSED.  IT IS OF THE

  ESSENCE OF THESE RELIGIOUS UNIONS, AND OF THEIR RIGHT TO

  ESTABLISH TRIBUNALS FOR THE DECISION OF QUESTIONS ARISING AMONG

  THEMSELVES, THAT THOSE DECISIONS SHOULD BE BINDING IN ALL CASES

  OF ECCLESIASTICAL COGNIZANCE, SUBJECT ONLY TO SUCH APPEALS AS THE

  ORGANISM ITSELF PROVIDES FOR."  13 WALL, AT 728-729.  /5/

THE LOGIC OF THIS LANGUAGE LEAVES THE CIVIL COURTS NO ROLE IN
DETERMINING ECCLESIASTICAL QUESTIONS IN THE PROCESS OF RESOLVING
PROPERTY DISPUTES. 

LATER CASES, HOWEVER, ALSO DECIDED ON NONCONSTITUTIONAL GROUNDS,
RECOGNIZED THAT THERE MIGHT BE SOME CIRCUMSTANCES IN WHICH MARGINAL
CIVIL COURT REVIEW OF ECCLESIASTICAL DETERMINATIONS WOULD BE
APPROPRIATE.  /6/  THE SCOPE OF THIS REVIEW WAS DELINEATED IN GONZALEZ
V. ARCHBISHOP, 280 U.S. 1 (1929).  THERE, GONZALEZ CLAIMED THE RIGHT TO
BE APPOINTED TO A CHAPLAINCY IN THE ROMAN CATHOLIC CHURCH UNDER A WILL
WHICH PROVIDED THAT A MEMBER OF HIS FAMILY RECEIVE THAT APPOINTMENT. 
THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, PHILIPPINE ISLANDS, REFUSED TO
APPOINT GONZALEZ ON THE GROUND THAT HE DID NOT SATISFY THE
QUALIFICATIONS ESTABLISHED BY CANON LAW FOR THAT OFFICE.  GONZALEZ
BROUGHT SUIT IN THE COURT OF FIRST INSTANCE OF MANILA FOR A JUDGMENT
DIRECTING THE ARCHBISHOP, AMONG OTHER THINGS, TO APPOINT HIM CHAPLAIN. 
THE TRIAL COURT ENTERED SUCH AN ORDER, BUT THE SUPREME COURT OF THE
PHILIPPINE ISLANDS REVERSED AND "ABSOLVED THE ARCHBISHOP FROM THE
COMPLAINT."  THIS COURT AFFIRMED.  MR. JUSTICE BRANDEIS, SPEAKING FOR
THE COURT, DEFINED THE CIVIL COURT ROLE IN THE FOLLOWING WORDS:  "IN
THE ABSENCE OF FRAUD, COLLUSION, OR ARBITRARINESS, THE DECISIONS OF THE
PROPER CHURCH TRIBUNALS ON MATTERS PURELY ECCLESIASTICAL, ALTHOUGH
AFFECTING CIVIL RIGHTS, ARE ACCEPTED IN LITIGATION BEFORE THE SECULAR
COURTS AS CONCLUSIVE, BECAUSE THE PARTIES IN INTEREST MADE THEM SO BY
CONTRACT OR OTHERWISE."  280 U.S.,AT 16. 

IN KEDROFF V. ST. NICHOLAS CATHEDRAL, 344 U.S. 94 (1952), THE COURT
CONVERTED THE PRINCIPLE OF WATSON AS QUALIFIED BY GONZALEZ INTO A
CONSTITUTIONAL RULE.  KEDROFF GREW OUT OF A DISPUTE BETWEEN THE MOSCOW
BASED GENERAL RUSSIAN ORTHODOX CHURCH AND THE RUSSIAN ORTHODOX CHURCHES
LOCATED IN NORTH AMERICA OVER AN APPOINTMENT TO ST. NICHOLAS CATHEDRAL
IN NEW YORK CITY.  THE NORTH AMERICAN CHURCHES DECLARED THEIR
INDEPENDENCE FROM THE GENERAL CHURCH, AND THE NEW YORK LEGISLATURE
ENACTED A STATUTE RECOGNIZING THEIR ADMINISTRATIVE AUTONOMY.  THE NEW
YORK COURTS SUSTAINED THE CONSTITUTIONALITY OF THE STATUTE AND HELD
THAT THE NORTH AMERICAN CHURCHES' ELECTED HIERARCH HAD THE RIGHT TO USE
THE CATHEDRAL.  THIS COURT REVERSED, FINDING THAT THE MOSCOW CHURCH HAD
NOT ACKNOWLEDGED THE SCHISM, AND HOLDING THE STATUTE UNCONSTITUTIONAL. 
THE COURT SAID, 344 U.S.,AT 116: 

     "THE OPINION (IN WATSON V. JONES) RADIATES . . . A SPIRIT OF

  FREEDOM FOR RELIGIOUS ORGANIZATIONS, AN INDEPENDENCE FROM SECULAR

  CONTROL OR MANIPULATION-- IN SHORT, POWER TO DECIDE FOR

  THEMSELVES, FREE FROM STATE INTERFERENCE, MATTERS OF CHURCH

  GOVERNMENT AS WELL AS THOSE OF FAITH AND DOCTRINE.  FREEDOM TO

  SELECT THE CLERGY, WHERE NO IMPROPER METHODS OF CHOICE ARE

  PROVEN, WE THINK, MUST NOW BE SAID TO HAVE FEDERAL CONSTITUTIONAL

  PROTECTION AS A PART OF THE FREE EXERCISE OF RELIGION AGAINST

  STATE INTERFERENCE." 

AND, SPEAKING OF THE NEW YORK STATUTE, THE COURT SAID FURTHER, ID., AT
119: 

"BY FIAT IT DISPLACES ONE CHURCH ADMINISTRATOR WITH ANOTHER.  IT
PASSES THE CONTROL OF MATTERS STRICTLY ECCLESIASTICAL FROM ONE CHURCH
AUTHORITY TO ANOTHER.  IT THUS INTRUDES FOR THE BENEFIT OF ONE SEGMENT
OF A CHURCH THE POWER OF THE STATE INTO THE FORBIDDEN AREA OF RELIGIOUS
FREEDOM CONTRARY TO THE PRINCIPLES OF THE FIRST AMENDMENT."  THIS
HOLDING INVALIDATING LEGISLATIVE ACTION WAS EXTENDED TO JUDICIAL ACTION
IN KRESHIK V. ST. NICHOLAS CATHEDRAL, 363 U.S. 190 (1960), WHERE THE
COURT HELD THAT THE CONSTITUTIONAL GUARANTEES OF RELIGIOUS LIBERTY
REQUIRED THE REVERSAL OF A JUDGMENT OF THE NEW YORK COURTS WHICH
TRANSFERRED CONTROL OF ST. NICHOLAS CATHEDRAL FROM THE CENTRAL
GOVERNING AUTHORITY OF THE RUSSIAN ORTHODOX CHURCH TO THE INDEPENDENT
RUSSIAN CHURCH OF AMERICA. 

THUS, THE FIRST AMENDMENT SEVERELY CIRCUMSCRIBES THE ROLE THAT CIVIL
COURTS MAY PLAY IN RESOLVING CHURCH PROPERTY DISPUTES.  IT IS OBVIOUS,
HOWEVER, THAT NOT EVERY CIVIL COURT DECISION AS TO PROPERTY CLAIMED BY
A RELIGIOUS ORGANIZATION JEOPARDIZES VALUES PROTECTED BY THE FIRST
AMENDMENT.  CIVIL COURTS DO NOT INHIBIT FREE EXERCISE OF RELIGION
MERELY BY OPENING THEIR DOORS TO DISPUTES INVOLVING CHURCH PROPERTY. 
AND THERE ARE NEUTRAL PRINCIPLES OF LAW, DEVELOPED FOR USE IN ALL
PROPERTY DISPUTES, WHICH CAN BE APPLIED WITHOUT "ESTABLISHING" CHURCHES
TO WHICH PROPERTY IS AWARDED.  BUT FIRST AMENDMENT VALUES ARE PLAINLY
JEOPARDIZED WHEN CHURCH PROPERTY LITIGATION IS MADE TO TURN ON THE
RESOLUTION BY CIVIL COURTS OF CONTROVERSIES OVER RELIGIOUS DOCTRINE AND
PRACTICE.  IF CIVIL COURTS UNDERTAKE TO RESOLVE SUCH CONTROVERSIES IN
ORDER TO ADJUDICATE THE PROPERTY DISPUTE, THE HAZARDS ARE EVER PRESENT
OF INHIBITING THE FREE DEVELOPMENT OF RELIGIOUS DOCTRINE AND OF
IMPLICATING SECULAR INTERESTS IN MATTERS OF PURELY ECCLESIASTICAL
CONCERN.  BECAUSE OF THESE HAZARDS, THE FIRST AMENDMENT ENJOINS THE
EMPLOYMENT OF ORGANS OF GOVERNMENT FOR ESSENTIALLY RELIGIOUS PURPOSES,
ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203 (1963); THE AMENDMENT
THEREFORE COMMANDS CIVIL COURTS TO DECIDE CHURCH PROPERTY DISPUTES
WITHOUT RESOLVING UNDERLYING CONTROVERSIES OVER RELIGIOUS DOCTRINE. 
HENCE, STATES, RELIGIOUS ORGANIZATIONS, AND INDIVIDUALS MUST STRUCTURE
RELATIONSHIPS INVOLVING CHURCH PROPERTY SO AS NOT TO REQUIRE THE CIVIL
COURTS TO RESOLVE ECCLESIASTICAL QUESTIONS. 

THE GEORGIA COURTS HAVE VIOLATED THE COMMAND OF THE FIRST
AMENDMENT.  THE DEPARTURE-FROM-DOCTRINE ELEMENT OF THE IMPLIED TRUST
THEORY WHICH THEY APPLIED REQUIRES THE CIVIL JUDICIARY TO DETERMINE
WHETHER ACTIONS OF THE GENERAL CHURCH CONSTITUTE SUCH A "SUBSTANTIAL
DEPARTURE" FROM THE TENETS OF FAITH AND PRACTICE EXIXTING AT THE TIME
OF THE LOCAL CHURCHES' AFFILIATION THAT THE TRUST IN FAVOR OF THE
GENERAL CHURCH MUST BE DECLARED TO HAVE TERMINATED.  THIS DETERMINATION
HAS TWO PARTS.  THE CIVIL COURT MUST FIRST DECIDE WHETHER THE
CHALLENGED ACTIONS OF THE GENERAL CHURCH DEPART SUBSTANTIALLY FROM
PRIOR DOCTRINE.  IN REACHING SUCH A DECISION, THE COURT MUST OF
NECESSITY MAKE ITS OWN INTERPRETATION OF THE MEANING OF CHURCH
DOCTRINES.  IF THE COURT SHOULD DECIDE THAT A SUBSTANTIAL DEPARTURE HAS
OCCURRED, IT MUST THEN GO ON TO DETERMINE WHETHER THE ISSUE ON WHICH
THE GENERAL CHURCH HAS DEPARTED HOLDS A PLACE OF SUCH IMPORTANCE IN THE
TRADITIONAL THEOLOGY AS TO REQUIRE THAT THE TRUST BE TERMINATED.  A
CIVIL COURT CAN MAKE THIS DETERMINATION ONLY AFTER ASSESSING THE
RELATIVE SIGNIFICANCE TO THE RELIGION OF THE TENETS FROM WHICH
DEPARTURE WAS FOUND.  THUS, THE DEPARTURE-FROM-DOCTRINE ELEMENT OF THE
GEORGIA IMPLIED TRUST THEORY REQUIRES THE CIVIL COURT TO DETERMINE
MATTERS AT THE VERY CORE OF A RELIGION-- THE INTERPRETATION OF
PARTICULAR CHURCH DOCTRINES AND THE IMPORTANCE OF THOSE DOCTRINES TO
THE RELIGION.  PLAINLY, THE FIRST AMENDMENT FORBIDS CIVIL COURTS FROM
PLAYING SUCH A ROLE.     SINCE THE GEORGIA COURTS ON REMAND MAY
UNDERTAKE TO DETERMINE WHETHER PETITIONER IS ENTITLED TO RELIEF ON ITS
CROSS-CLAIMS, WE FIND IT APPROPRIATE TO REMARK THAT THE DEPARTURE-FROM
DOCTRINE ELEMENT OF GEORGIA'S IMPLIED TRUST THEORY CAN PLAY NO ROLE IN
ANY FUTURE JUDICIAL PROCEEDINGS.  THE DEPARTURE-FROM-DOCTRINE APPROACH
IS NOT SUSCEPTIBLE OF THE MARGINAL JUDICIAL INVOLVEMENT CONTEMPLATED IN
GONZALEZ.  /7/  GONZALEZ' RIGHTS UNDER A WILL TURNED ON A CHURCH
DECISION, THE ARCHBISHOP'S, AS TO CHURCH LAW, THE QUALIFICATIONS FOR
THE CHAPLAINCY.  IT WAS THE ARCHBISHOPRIC, NOT THE CIVIL COURTS, WHICH
HAD THE TASK OF ANALYZING AND INTERPRETING CHURCH LAW IN ORDER TO
DETERMINE THE VALIDITY OF GONZALEZ' CLAIM TO A CHAPLAINCY.  THUS, THE
CIVIL COURTS COULD ADJUDICATE THE RIGHTS UNDER THE WILL WITHOUT
INTERPRETING OR WEIGHING CHURCH DOCTRINE BUT SIMPLY BY ENGAGING IN THE
NARROWEST KIND OF REVIEW OF A SPECIFIC CHURCH DECISION-- I.E., WHETHER
THAT DECISION RESULTED FROM FRAUD, COLLUSION, OR ARBITRARINESS.  SUCH
REVIEW DOES NOT INJECT THE CIVIL COURTS INTO SUBSTANTIVE ECCLESIASTICAL
MATTERS.  IN CONTRAST, UNDER GEORGIA'S DEPARTURE-FROM-DOCTRINE
APPROACH, IT IS NOT POSSIBLE FOR THE CIVIL COURTS TO PLAY SO LIMITED A
ROLE.  UNDER THIS APPROACH, PROPERTY RIGHTS DO NOT TURN ON A CHURCH
DECISION AS TO CHURCH DOCTRINE.  THE STANDARD OF DEPARTURE-FROM
DOCTRINE, THOUGH IT CALLS FOR RESOLUTION OF ECCLESIASTICAL QUESTIONS,
IS A CREATION OF STATE, NOT CHURCH, LAW.  NOTHING IN THE RECORD
SUGGESTS THAT THIS STATE STANDARD HAS BEEN INTERPRETED AND APPLIED IN A
DECISION OF THE GENERAL CHURCH.  ANY DECISIONS WHICH HAVE BEEN MADE BY
THE GENERAL CHURCH ABOUT THE LOCAL CHURCHES' WITHDRAWAL HAVE AT MOST A
TANGENTIAL RELATIONSHIP TO THE STATE-FASHIONED DEPARTURE-FROM-DOCTRINE
STANDARD.  A DETERMINATION WHETHER SUCH DECISIONS ARE FRAUDULENT,
COLLUSIVE, OR ARBITRARY WOULD THEREFORE NOT ANSWER THE QUESTIONS POSED
BY THE STATE STANDARD.  TO REACH THOSE QUESTIONS WOULD REQUIRE THE
CIVIL COURTS TO ENGAGE IN THE FORBIDDEN PROCESS OF INTERPRETING AND
WEIGHING CHURCH DOCTRINE.  EVEN IF THE GENERAL CHURCH HAD ATTEMPTED TO
APPLY THE STATE STANDARD, THE CIVIL COURTS COULD NOT REVIEW AND ENFORCE
THE CHURCH DECISION WITHOUT VIOLATING THE CONSTITUTION.  THE FIRST
AMENDMENT PROHIBITS A STATE FROM EMPLOYING RELIGIOUS ORGANIZATIONS AS
AN ARM OF THE CIVIL JUDICIARY TO PERFORM THE FUNCTION OF INTERPRETING
AND APPLYING STATE STANDARDS.  SEE ABINGTON SCHOOL DISTRICT V. SCHEMPP,
SUPRA.  THUS, A CIVIL COURT MAY NO MORE REVIEW A CHURCH DECISION
APPLYING A STATE DEPARTURE-FROM-DOCTRINE STANDARD THAN IT MAY APPLY
THAT STANDARD ITSELF. 

THE JUDGMENT OF THE SUPREME COURT OF GEORGIA IS REVERSED, AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  THE OPINION OF THE SUPREME COURT OF GEORGIA SUMMARIZES THE
CLAIMED VIOLATIONS AND DEPARTURES FROM PETITIONER'S ORIGINAL TENETS OF
FAITH AND PRACTICE AS INCLUDING THE FOLLOWING:  "ORDAINING OF WOMEN AS
MINISTERS AND RULING ELDERS, MAKING PRONOUNCEMENTS AND RECOMMENDATIONS
CONCERNING CIVIL, ECONOMIC, SOCIAL AND POLITICAL MATTERS, GIVING
SUPPORT TO THE REMOVAL OF BIBLE READING AND PRAYERS BY CHILDREN IN THE
PUBLIC SCHOOLS, ADOPTING CERTAIN SUNDAY SCHOOL LITERATURE AND TEACHING
NEO-ORTHODOXY ALIEN TO THE CONFESSION OF FAITH AND CATECHISMS, AS
ORIGINALLY ADOPTED BY THE GENERAL CHURCH, AND CAUSING ALL MEMBERS TO
REMAIN IN THE NATIONAL COUNCIL OF CHURCHES OF CHRIST AND WILLINGLY
ACCEPTING ITS LEADERSHIP WHICH ADVOCATED NAMED PRACTICES, SUCH AS THE
SUBVERTING OF PARENTAL AUTHORITY, CIVIL DISOBEDIENCE AND INTERMEDDLING
IN CIVIL AFFAIRS"; ALSO "THAT THE GENERAL CHURCH HAS . . . MADE
PRONOUNCEMENTS IN MATTERS INVOLVING INTERNATIONAL ISSUES SUCH AS THE
VIETNAM CONFLICT AND HAS DISSEMINATED PUBLICATIONS DENYING THE HOLY
TRINITY AND VIOLATING THE MORAL AND ETHICAL STANDARDS OF THE FAITH." 
224 GA. 61, 62-63, 159 S.E.2D 690, 692 (1968). 

/2/  THIS THEORY DERIVES FROM PRINCIPLES FASHIONED BY ENGLISH
COURTS.  SEE, E.G., CRAIGDALLIE V. AIKMAN, 1 DOW 1, 3 ENG.REP.  601
(H.L. 1813) (SCOT.); ATTORNEY GENERAL EX REL. MANDER V. PEARSON, 3
MER.  353, 36 ENG.REP.  135 (CH. 1817).  FOR THE SUBSEQUENT DEVELOPMENT
OF THE IMPLIED TRUST THEORY IN ENGLISH COURTS, SEE NOTE, JUDICIAL
INTERVENTION IN DISPUTES OVER THE USE OF CHURCH PROPERTY, 75
HARV.L.REV.  1142, 1148-1149 (1962). 

/3/  WE REJECT THE CONTENTION OF RESPONDENT LOCAL CHURCHES THAT NO
FIRST AMENDMENT ISSUES WERE RAISED OR DECIDED IN THE STATE COURTS. 
PETITIONER'S ANSWER AND CROSS-CLAIM IN EACH CASE INCLUDED AN EXPRESS
ALLEGATION THAT THE ACTION OF RESPONDENTS IN APPROPRIATING THE CHURCH
PROPERTY TO THEIR USE WAS "IN VIOLATION OF THE LAWS OF GEORGIA, THE
UNITED STATES OF AMERICA, AND THE SOUTHERN PRESBYTERIAN CHURCH."  AT
TRIAL, PETITIONERS' COUNSEL OBJECTED TO THE ADMISSION OF ALL TESTIMONY
"PERTAINING TO (THE) ALLEGED DEVIATION FROM THE FAITH AND PRACTICE OF
THE PRESYBTERIAN CHURCH IN THE UNITED STATES" BECAUSE THAT QUESTION WAS
"EXCLUSIVELY WITHIN THE RIGHT OF THE PRESBYTERIAN CHURCH IN THE UNITED
STATES THROUGH ITS PROPER JUDICIAL BODY TO DETERMINE."  ON APPEAL,
PETITIONERS AGAIN CONTENDED "THAT QUESTIONS OF AN ECCLESIASTICAL NATURE
CONCERNING WHETHER OR NOT A CHURCH HAS ABANDONED ITS TENENTS (SIC) AND
DOCTRINES, OR SOME OF THEM, ARE EXCLUSIVELY WITHIN THE JURISDICTION OF
THE CHURCH COURTS AND SHOULD NOT BE SUBMITTED TO A JURY FOR
DETERMINATION AS THIS WOULD DESTROY THE DOCTRINE OF SEPARATION OF
CHURCH AND STATE."  PETITIONERS THUS CLEARLY RAISED CLAIMS UNDER THE
FIRST AMENDMENT AS APPLIED TO THE STATES BY THE FOURTEENTH AMENDMENT. 
KEDROFF V. ST. NICHOLAS CATHEDRAL, 344 1.S. 94, 116, 119 (1952).  THE
GEORGIA SUPREME COURT CONSIDERED AND DECIDED THESE CLAIMS.  "IN
CONSIDERING THIS CONTENTION (THAT THE PETITIONS RAISE ECCLESIASTICAL
QUESTIONS WHICH ARE EXCLUSIVELY WITHIN THE JURISDICTION OF THE CHURCH,
NOT OF CIVIL COURTS, AND THEREFORE THAT RESPONDENTS COULD NOT MAINTAIN
THEIR ACTION)," THE COURT SAID, "WE ARE MINDFUL THAT 'THE TRADITIONAL
AMERICAN DOCTRINE OF FREEDOM OF RELIGION AND SEPARATION OF CHURCH AND
STATE CARRIES WITH IT FREEDOM OF THE CHURCH FROM HAVING ITS DOCTRINES
OR BELIEFS DEFINED, INTERPRETED, OR CENSORED BY CIVIL COURTS.'"  224
GA.,AT 68, 159 S.E.2D, AT 695.  THE COURT CONCLUDED, HOWEVER, THAT THE
TRIAL COURT DID NOT VIOLATE THE DOCTRINE.  CITING GEORGIA CODE ANN.
SEC. 22-408, WHICH PROVIDES:  "COURTS ARE RELUCTANT TO INTERPOSE IN
QUESTIONS AFFECTING THE MANAGEMENT OF THE TEMPORALITIES OF A CHURCH;
BUT WHEN PROPERTY IS DEVOTED TO A SPECIFIC DOCTRINE OR PURPOSE, THE
COURTS WILL PREVENT IT FROM BEING DIVERTED FROM THE TRUST," THE COURT
HELD THAT "A TRUST (IN FAVOR OF THE GENERAL CHURCH) IS CONDITIONED UPON
THE GENERAL CHURCH'S ADHERENCE TO ITS TENETS OF FAITH AND PRACTICE
EXISTING WHEN THE LOCAL CHURCH AFFILIATED WITH IT AND . . . AN
ABANDONMENT OF, OR DEPARTURE FROM, SUCH TENETS IS A DIVERSION FROM THE
TRUST, WHICH THE CIVIL COURTS WILL PREVENT."  224 GA.,AT 68, 159
S.E.2D, AT 695. 

/4/  "WATSON V. JONES, ALTHOUGH IT CONTAINS A REFERENCE TO THE
RELATIONS OF CHURCH AND STATE UNDER OUR SYSTEM OF LAWS, WAS DECIDED
WITHOUT DEPENDING UPON PROHIBITION OF STATE INTERFERENCE WITH THE FREE
EXERCISE OF RELIGION.  IT WAS DECIDED IN 1871 (SIC), BEFORE JUDICIAL
RECOGNITION OF THE COERCIVE POWER OF THE FOURTEENTH AMENDMENT TO
PROTECT THE LIMITATIONS OF THE FIRST AMENDMENT AGAINST STATE ACTION. 
IT LONG ANTEDATED THE 1938 DECISIONS OF ERIE R. CO. V. TOMPKINS AND
RUHLIN V. NEW YORK LIFE INS. CO., 304 U.S. 64 AND 202, AND, THEREFORE,
EVEN THOUGH FEDERAL JURISDICTION IN THE CASE DEPENDED SOLELY ON
DIVERSITY, THE HOLDING WAS BASED ON GENERAL LAW RATHER THAN KENTUCKY
LAW."  KEDROFF V. ST. NICHOLAS CATHEDRAL, 344 U.S. 94, 115-116 (1952). 

/5/  ACCORD, SEE, E.G., DECISIONS INVOLVING PRESBYTERIAN CHURCHES,
TRUSTEES OF PENCADER PRESBYTERIAN CHURCH V. GIBSON, 26 DEL.CH. 375, 22
A.2D 782 (1941); BRAMLETT V. YOUNG, 229 S.C. 519, 93 S.E.2D 873 (1956);
ST. JOHN'S PRESBYTERY V. CENTRAL PRESBYTERIAN CHURCH OF ST. PETERSBURG,
102 SO.2D 714 (FLA. 1958); SEE ALSO NORTHSIDE BIBLE CHURCH V. GOODSON,
387 F.2D 534 (C.A. 5TH CIR. 1967).  SEE GENERALLY FOR AN EXAMINATION OF
THE DEVELOPMENT AND GROWTH OF THE RULES FOR SETTLING CHURCH PROPERTY
DISPUTES, NOTE, JUDICIAL INTERVENTION IN DISPUTES OVER THE USE OF
CHURCH PROPERTY, 75 HARV.L.REV.  1142 (1962); 54 VA.L.REV.  1451
(1968); DUESENBERG, JURISDICTION OF CIVIL COURTS OVER RELIGIOUS ISSUES,
20 OHIO ST.L.J. 508 (1959); COMMENT, JUDICIAL INTERVENTION IN CHURCH
PROPERTY DISPUTES-- SOME CONSTITUTIONAL CONSIDERATIONS, 74 YALE L.J.
1113 (1965). 

/6/  SEE, E.G., BOULDIN V. ALEXANDER, 15 WALL.  131 (1872); BRUNDAGE
V. DEARDORF, 55 F. 839 (C.C.N.D. OHIO 1893). 

/7/  WE HAVE NO OCCASION IN THIS CASE TO DEFINE OR DISCUSS THE
PRECISE LIMITS OF REVIEW FOR "FRAUD, COLLUSION, OR ARBITRARINESS"
WITHIN THE MEANING OF GONZALEZ. 

MR. JUSTICE HARLAN, CONCURRING. 

I AM IN ENTIRE AGREEMENT WITH THE COURT'S REJECTION OF THE
"DEPARTURE-FROM-DOCTRINE" APPROACH TAKEN BY THE GEORGIA COURTS, AS THAT
APPROACH NECESSARILY REQUIRES THE CIVILIAN COURTS TO WEIGH THE
SIGNIFICANCE AND THE MEANING OF DISPUTED RELIGIOUS DOCTRINE.  I DO NOT,
HOWEVER, READ THE COURT'S OPINION TO GO FURTHER TO HOLD THAT THE
FOURTEENTH AMENDMENT FORBIDS CIVILIAN COURTS FROM ENFORCING A DEED OR
WILL WHICH EXPRESSLY AND CLEARLY LAYS DOWN CONDITIONS LIMITING A
RELIGIOUS ORGANIZATION'S USE OF THE PROPERTY WHICH IS GRANTED.  IF, FOR
EXAMPLE, THE DONOR EXPRESSLY GIVES HIS CHURCH SOME MONEY ON THE
CONDITION THAT THE CHURCH NEVER ORDAIN A WOMAN AS A MINISTER OR ELDER,
SEE ANTE, AT 442, N. 1, OR NEVER AMEND CERTAIN SPECIFIED ARTICLES OF
THE CONFESSION OF FAITH, HE IS ENTITLED TO HIS MONEY BACK IF THE
CONDITION IS NOT FULFILLED.  IN SUCH A CASE, THE CHURCH SHOULD NOT BE
PERMITTED TO KEEP THE PROPERTY SIMPLY BECAUSE CHURCH AUTHORITIES HAVE
DETERMINED THAT THE DOCTRINAL INNOVATION IS JUSTIFIED BY THE FAITH'S
BASIC PRINCIPLES.  CF. WATSON V. JONES, 13 WALL, 679, 722-724 (1872). 

ON THIS UNDERSTANDING, I JOIN THE COURT'S OPINION. 

CHARLES L. GOWEN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE ROBERT B. TROUTMAN AND FRANK S. CHEATHAM, JR. 

OWEN H. PAGE ARGUED THE CAUSE FOR RESPONDENTS AND FILED A BRIEF FOR
RESPONDENTS EASTERN HEIGHTS PRESBYTERIAN CHURCH ET AL. RICHARD T.
COWAN, FRANK B. ZEIGLER, AND JAMES EDWARD MCALEER FILED A BRIEF FOR
RESPONDENT MARY ELIZABETH BLUE HULL MEMORIAL PRESBYTERIAN CHURCH. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY GEORGE WILSON
MCKEAG FOR THOMPSON, STATED CLERK OF THE GENERAL ASSEMBLY OF THE UNITED
PRESBYTERIAN CHURCH IN THE UNITED STATES ET AL., AND BY JACKSON A.
DYKMAN AND HARRY G. HILL, JR., FOR THE RIGHT REV. JOHN E. HINES,
PRESIDING BISHOP OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED
STATES. 

BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY WILLIAM J.
MCLEOD, JR., AND W. J. WILLIAMSON, PRO SE, FOR WILLIAMSON, SECRETARY OF
CONCERNED PRESBYTERIANS, INC., AND BY ALFRED J. SCHWEPPE FOR
LAURELHURST UNITED PRESBYTERIAN CHURCH, INC., ET AL.
..END :




SEC. V. NATIONAL SECURITIES, INC., 393 U.S. 453 


       SECURITIES AND EXCHANGE COMMISSION V. NATIONAL SECURITIES,

           INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 41.  ARGUED NOVEMBER 18-19, 1968.-- DECIDED JANUARY 27,

           1969. 


THE SECURITIES AND EXCHANGE COMMISSION (SEC) BROUGHT SUIT AGAINST
RESPONDENT NATIONAL SECURITIES AND PERSONS ASSOCIATED WITH IT, ALLEGING
VIOLATIONS OF SEC. 10(B) OF THE SECURITIES EXCHANGE ACT AND OF SEC'S
RULE 10B-5, ARISING OUT OF MISREPRESENTATIONS AND OMISSIONS OF MATERIAL
FACTS IN COMMUNICATIONS SENT TO SHAREHOLDERS OF PRODUCERS LIFE
INSURANCE CO., IN AN ATTEMPT TO SECURE APPROVAL OF A MERGER BETWEEN
THAT COMPANY AND AN INSURANCE FIRM CONTROLLED BY NATIONAL SECURITIES. 
SEC'S REQUEST FOR TEMPORARY RELIEF WAS DENIED AND THEREAFTER PRODUCERS'
STOCKHOLDERS APPROVED THE MERGER AND THE ARIZONA DIRECTOR OF INSURANCE
FOUND THE MERGER NOT"(INEQUITABLE TO THE STOCKHOLDERS OF ANY DOMESTIC
INSURER,# AND NOT OTHERWISE "CONTRARY TO LAW," AS HE WAS REQUIRED TO DO
UNDER THE STATE INSURANCE LAWS.  THE MERGER WAS CONSUMMATED AND THE SEC
THEN AMENDED ITS COMPLAINT TO SEEK ADDITIONAL RELIEF, INCLUDING
UNWINDING THE MERGER.  THE TRIAL COURT DISMISSED THE COMPLAINT, AND THE
COURT OF APPEALS AFFIRMED ON THE BASIS THAT SEC. 2(B) OF THE MCCARRAN
FERGUSON ACT BARRED RELIEF.  THAT SECTION PROVIDES THAT "(NO ACT OF
CONGRESS SHALL BE CONSTRUED TO INVALIDATE, IMPAIR, OR SUPERSEDE ANY LAW
ENACTED BY ANY STATE FOR THE PURPOSE OF REGULATING THE BUSINESS OF
INSURANCE . . . UNLESS SUCH ACT SPECIFICALLY RELATES TO THE BUSINESS OF
INSURANCE.  . . . "  HELD: 

1.  ARIZONA'S STATUTORY REGULATION, INSOFAR AS IT APPLIES TO THE
RELATIONSHIP BETWEEN INSURANCE COMPANIES AND THEIR SHAREHOLDERS, DOES
NOT COME WITHIN THE SCOPE OF THE MCCARRAN-FERGUSON ACT AND DOES NOT
RENDER THE FEDERAL SECURITIES LAWS INAPPLICABLE.  PP. 457-461. 

(A) THE ACT DID NOT PURPORT TO MAKE THE STATES SUPREME IN REGULATING
ALL THE ACTIVITIES OF INSURANCE COMPANIES, BUT WAS CONCERNED WITH LAWS
REGULATING THE BUSINESS OF INSURANCE AND FOCUSED ON THE INSURANCE
COMPANY-POLICYHOLDER RELATIONSHIP.  PP. 459-460. 

(B) ARIZONA IS ATTEMPTING HERE TO REGULATE THE COMPANY-STOCKHOLDER
RELATIONSHIP, WHICH IS SECURITIES REGULATION AND NOT WITHIN THE PURVIEW
OF THE ACT.  P. 460. 

(C) STATE REGULATION OF INSURANCE COMPANY SECURITIES DOES NOT PRE
EMPT FEDERAL REGULATION.  P. 461. 

2.  THE ACT DOES NOT BAR THE REMEDIES, INCLUDING RETURN TO THE
STATUS QUO ANTE, WHICH THE SEC IS SEEKING, AS THE COMPLAINT IS BASED ON
FRAUDULENT MISREPRESENTATIONS AND NOT ON THE ILLEGALITY OF THE MERGER;
ANY "IMPAIRMENT" OF THE STATE INSURANCE LAWS IS VERY INDIRECT; AND THE
PARAMOUNT FEDERAL INTEREST IN PROTECTING SHAREHOLDERS IS PERFECTLY
COMPATIBLE WITH THE PARAMOUNT STATE INTEREST IN PROTECTING
POLICYHOLDERS.  PP. 461-464. 

3.  THE DECEPTION ALLEGED HERE HAS AFFECTED STOCKHOLDERS' DECISIONS
IN A WAY NOT UNLIKE THAT INVOLVED IN A TYPICAL CASH SALE OR SHARE
EXCHANGE, AND IN LIGHT OF THE BROAD ANTIFRAUD PURPOSES OF SEC. 10(B) OF
THE SECURITIES EXCHANGE ACT AND SEC RULE 10B-5, WHICH APPLY "IN
CONNECTION WITH THE PURCHASE OR SALE OF ANY SECURITY," EXCHANGES BY
PRODUCERS' SHAREHOLDERS OF THEIR OLD STOCK FOR SHARES IN THE NEW
COMPANY ARE "PURCHASES" WITHIN THE MEANING OF THAT STATUTORY LANGUAGE. 
PP. 465-468. 

4.  THE FACT THAT SEC. 14 OF THE SECURITIES EXCHANGE ACT AND THE
RULES ISSUED THEREUNDER, WHICH APPLY TO PROXY SITUATIONS, MAY OVERLAP
THE COVERAGE OF SEC. 10(B) AND RULE 10B-5, DOES NOT BAR THE APPLICATION
OF RULE 10B-5 WHICH IS CONCERNED WITH MISREPRESENTATIONS IN THE
PURCHASE AND SALE OF ANY SECURITY AND INCLUDES MISSTATEMENTS IN PROXY
MATERIALS.  PP. 468-469. 

387 F.2D 25, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES SOME COMPLEX QUESTIONS ABOUT THE SECURITIES AND
EXCHANGE COMMISSION'S POWER TO REGULATE THE ACTIVITIES OF INSURANCE
COMPANIES AND OF PERSONS ENGAGED IN THE INSURANCE BUSINESS.  THE
COMMISSION ORIGINALLY BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA, PURSUANT TO SEC. 21(E) OF THE SECURITIES
EXCHANGE ACT OF 1934, 48 STAT. 900, AS AMENDMED, 15 U.S.C. 78UE).  IT
ALLEGED VIOLATIONS OF SEC. 10(B) OF THE ACT, 48 STAT. 891, 15 U.S.C.
78JB), AND OF THE COMMISSION'S RULE 10B-5, 17 CFR 240.10B-5 (1968). 
ACCORDING TO THE AMENDED COMPLAINT, NATIONAL SECURITIES AND VARIOUS
PERSONS ASSOCIATED WITH IT HAD CONTRIVED A FRAUDULENT SCHEME CENTERING
ON A CONTEMPLATED MERGER BETWEEN NATIONAL LIFE & CASUALTY INSURANCE CO.
(NATIONAL LIFE), A FIRM CONTROLLED BY NATIONAL SECURITIES, AND
PRODUCERS LIFE INSURANCE CO. (PRODUCERS).  THE DETAILS OF THE ALLEGED
SCHEME ARE NOT IMPORTANT HERE.  THE COMMISSION CONTENDED THAT NATIONAL
SECURITIES PURCHASED A CONTROLLING INTEREST IN PRODUCERS, PARTLY FROM
PRODUCERS' DIRECTORS AND PARTLY IN THE FORM OF TREASURY STOCK HOLD BY
PRODUCERS.  AFTER TAKING CONTROL OF PRODUCERS'  BOARD, RESPONDENTS
SOUGHT TO OBTAIN SHAREHOLDER APPROVAL OF THE MERGER BY SENDING
COMMUNICATIONS TO PRODUCERS' 14,000 STOCKHOLDERS.  THESE
COMMUNICATIONS, ACCORDING TO THE COMMISSION, CONTAINED
MISREPRESENTATIONS OF MATERIAL FACTS AND OMITTED TO STATE MATERIAL
FACTS NECESSARY TO MAKE THE STATEMENTS WHICH WERE MADE NOT MISLEADING. 
AMONG OTHER THINGS, RESPONDENTS ALLEGEDLY FAILED TO DISCLOSE THEIR PLAN
FOR THE SURVIVING COMPANY TO ASSUME CERTAIN OBLIGATIONS WHICH NATIONAL
SECURITIES HAD UNDERTAKEN AS PART OF THE CONSIDERATION FOR ITS
PURCHASES OF PRODUCERS' STOCK.  IN PLAIN LANGUAGE, PRODUCERS'
SHAREHOLDERS WERE NOT TOLD THAT THEY WERE GOING TO PAY PART OF THE COST
OF NATIONAL SECURITIES' ACQUISITION OF CONTROL IN THEIR COMPANY. 

THE COMMISSION WAS DENIED TEMPORARY RELIEF, AND SHORTLY THEREAFTER
PRODUCERS' SHAREHOLDERS AND THE ARIZONA DIRECTOR OF INSURANCE APPROVED
THE MERGER.  THE TWO COMPANIES WERE FORMALLY CONSOLIDATED INTO NATIONAL
PRODUCERS LIFE INSURANCE CO. ON JULY 9, 1965.  THEREAFTER, THE
COMMISSION AMENDED ITS COMPLAINT TO SEEK ADDITIONAL RELIEF; THE
PREVIOUSLY SOUGHT INJUNCTION FORBIDDING FURTHER VIOLATIONS OF RULE 10B
5 WAS TO BE SUPPLEMENTED BY COURT ORDERS UNWINDING THE MERGER AND
RETURNING THE SITUATION TO THE STATUS QUO ANTE, REQUIRING RESPONDENTS
TO MAKE AN ACCOUNTING OF THEIR UNLAWFUL GAINS, AND READJUSTING THE
EQUITIES OF THE VARIOUS RESPONDENTS IN WHATEVER COMPANIES SURVIVED THE
DECREE.  THE COMMISSION ALSO REQUESTED WHATEVER FURTHER RELIEF THE
COURT MIGHT DEEM JUST, EQUITABLE, AND NECESSARY.  RESPONDENTS MOVED FOR
JUDGMENT ON THE PLEADINGS, AND THE TRIAL COURT DISMISSED THE COMPLAINT
FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED.  THE
COURT RULED THAT THE RELIEF REQUESTED WAS EITHER BARRED BY SEC. 2(B) OF
THE MCCARRAN-FERGUSON ACT, 59 STAT. 34 (1945), AS AMENDED, 15 U.S.C.
1012(B), /1/  OR WAS BEYOND THE SCOPE OF SEC. 21(E) OF THE SECURITIES
EXCHANGE ACT.  252 F.SUPP.  623 (1966).  THE NINTH CIRCUIT AFFIRMED,
RELYING ON THE MCCARRAN-FERGUSON ACT.  387 F.2D 25 (1967).  UPON
APPLICATION BY THE COMMISSION, WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THE QUESTIONS RAISED TO THE ADMINISTRATION OF THE
SECURITIES LAWS.  390 U.S. 1023 (1968). 

        I. 

INSOFAR AS IT IS RELEVANT TO THIS CASE, SEC. 2(B) OF THE MCARRAN
FERGUSON ACT PROVIDES THAT "(N)O ACT OF CONGRESS SHALL BE CONSTRUED TO
INVALIDATE, IMPAIR, OR SUPERSEDE ANY LAW ENACTED BY ANY STATE FOR THE
PURPOSE OF REGULATING THE BUSINESS OF INSURANCE . . . UNLESS SUCH ACT
SPECIFICALLY RELATES TO THE BUSINESS OF INSURANCE.  . . . "
RESPONDENTS CONTEND THAT THIS ACT BARS THE PRESENT SUIT SINCE THE
ARIZONA DIRECTOR OF INSURANCE FOUND THAT THE MERGER WAS NOT
"(INEQUITABLE TO THE STOCKHOLDERS OF ANY DOMESTIC INSURER" AND NOT
OTHERWISE "CONTRARY TO LAW," AS HE WAS REQUIRED TO DO UNDER THE STATE
INSURANCE LAWS.  ARIZ. REV. STAT. ANN. SEC. 20-731 (SUPP. 1969).  IF
THE SECURITIES EXCHANGE ACT WERE APPLIED, RESPONDENTS ARGUE, THESE LAWS
WOULD BE #SUPERSEDED."  THE SEC SEES NO CONFLICT BETWEEN STATE AND
FEDERAL LAW; IT CONTENDS THAT THE APPLICABLE ARIZONA STATUTES DID NOT
GIVE THE STATE INSURANCE DIRECTOR THE POWER TO DETERMINE WHETHER
RESPONDENTS HAD MADE FULL DISCLOSURE IN CONNECTION WITH THE
SOLICITATION OF PROXIES.  /2/  ALTHOUGH RESPONDENTS DISAGREE, WE DO NOT
FIND IT NECESSARY TO INQUIRE INTO THIS STATE-LAW DISPUTE.  THE FIRST
QUESTION POSED BY THIS CASE IS WHETHER THE RELEVANT ARIZONA STATUTE IS
A "LAW ENACTED . . . FOR THE PURPOSE OF REGULATING THE BUSINESS OF
INSURANCE# WITHIN THE MEANING OF THE MCCARRAN-FERGUSON ACT.  EVEN
ACCEPTING RESPONDENTS' VIEW OF ARIZONA LAW, WE DO NOT BELIEVE THAT A
STATE STATUTE AIMED AT PROTECTING THE INTERESTS OF THOSE WHO OWN STOCK
IN INSURANCE COMPANIES COMES WITHIN THE SWEEP OF THE MCCARRAN-FERGUSON
ACT.  SUCH A STATUTE IS NOT A STATE ATTEMPT TO REGULATE "THE BUSINESS
OF INSURANCE," AS THAT PHRASE WAS USED IN THE ACT. 

THE MCCARRAN-FERGUSON ACT WAS PASSED IN REACTION TO THIS COURT'S
DECISION IN UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S.
533 (1944).  PRIOR TO THAT DECISION, IT HAD BEEN ASSUMED, IN THE
LANGUAGE OF THE LEADING CASE, THAT "(ISSUING A POLICY OF INSURANCE IS
NOT A TRANSACTION OF COMMERCE."  PAUL V. VIRGINIA, 8 WALL.  168, 183
(1869).  CONSEQUENTLY, REGULATION OF INSURANCE TRANSACTIONS WAS THOUGHT
TO REST EXCLUSIVELY WITH THE STATES.  IN SOUTH-EASTERN UNDERWRITERS,
THIS COURT HELD THAT INSURANCE TRANSACTIONS WERE SUBJECT TO FEDERAL
REGULATION UNDER THE COMMERCE CLAUSE, AND THAT THE ANTITRUST LAWS, IN
PARTICULAR, WERE APPLICABLE TO THEM.  CONGRESS REACTED QUICKLY.  EVEN
BEFORE THE OPINION WAS ANNOUNCED, THE HOUSE HAD PASSED A BILL EXEMPTING
THE INSURANCE INDUSTRY FROM THE ANTITRUST LAWS.  90 CONG.REC.  6565
(1944).  OBJECTION IN THE SENATE KILLED THE BILL, 90 CONG.REC.  8054
(1944), BUT CONGRESS CLEARLY REMAINED CONCERNED ABOUT THE INROADS THE
COURT'S DECISION MIGHT MAKE ON THE TRADITION OF STATE REGULATION OF
INSURANCE.  THE MCCARRAN-FERGUSON ACT WAS THE PRODUCT OF THIS CONCERN. 
ITS PURPOSE WAS STATED QUITE CLEARLY IN ITS FIRST SECTION; CONGRESS
DECLARED THAT "THE CONTINUED REGULATION AND TAXATION BY THE SEVERAL
STATES OF THE BUSINESS OF INSURANCE IS IN THE PUBLIC INTEREST."  59
STAT. 33 (1945), 15 U.S.C. 1011.  AS THIS COURT SAID SHORLY AFTERWARD,
"(OBVIOUSLY CONGRESS' PURPOSE WAS BROADLY TO GIVE SUPPORT TO THE
EXISTING AND FUTURE STATE SYSTEMS FOR REGULATING AND TAXING THE
BUSINESS OF INSURANCE."  PRUDENTIAL INSURANCE CO. V. BENJAMIN, 328 U.S.
408, 429 (1946). 

THE QUESTION HERE IS WHETHER STATE LAWS AIMED AT PROTECTING THE
INTERESTS OF THOSE WHO OWN SECURITIES IN INSURANCE COMPANIES ARE THE
TYPE OF LAWS REFERRED TO IN THE 1945 ENACTMENT.  THE LEGISLATIVE
HISTORY OF THE MCCARRAN-FERGUSON ACT OFFERS NO REAL ASSISTANCE. 
CONGRESS WAS MAINLY CONCERNED WITH THE RELATIONSHIP BETWEEN INSURANCE
RATEMAKING AND THE ANTITRUST LAWS, AND WITH THE POWER OF THE STATES TO
TAX INSURANCE COMPANIES.  SEE, E.G., 91 CONG.REC.  1087-1088 (REMARKS
OF CONGRESSMEN HANCOCK AND CELLER).  THE DEBATES CENTERED ON THESE
ISSUES, AND THE COMMITTEE REPORTS SHED LITTLE LIGHT ON THE MEANING OF
THE WORDS "BUSINESS OF INSURANCE."  SEE S. REP. NO. 20, 79TH CONG., 1ST
SESS. (1945); H.R. REP. NO. 143, 79TH CONG., 1ST SESS. (1945).  IN
CONTEXT, HOWEVER, IT IS RELATIVELY CLEAR WHAT PROBLEMS CONGRESS WAS
DEALING WITH.  UNDER THE REGIME OF PAUL V. VIRGINIA, SUPRA, STATES HAD
A FREE HAND IN REGULATING THE DEALINGS BETWEEN INSURERS AND THEIR
POLICYHOLDERS.  THEIR NEGOTIATIONS, AND THE CONTRACT WHICH RESULTED,
WERE NOT CONSIDERED COMMERCE AND WERE, THEREFORE, LEFT TO STATE
REGULATION.  THE SOUTH-EASTERN UNDERWRITERS DECISION THREATENED THE
CONTINUED SUPREMACY OF THE STATES IN THIS AREA.  THE MCCARRAN-FERGUSON
ACT WAS AN ATTEMPT TO TURN BACK THE CLOCK, TO ASSURE THAT THE
ACTIVITIES OF INSURANCE COMPANIES IN DEALING WITH THEIR POLICYHOLDERS
WOULD REMAIN SUBJECT TO STATE REGULATION.  AS THE HOUSE REPORT MAKES
CLEAR, "(IT (WAS) NOT THE INTENTION OF CONGRESS IN THE ENACTMENT OF
THIS LEGISLATION TO CLOTHE THE STATES WITH ANY POWER TO REGULATE OR TAX
THE BUSINESS OF INSURANCE BEYOND THAT WHICH THEY HAD BEEN HELD TO
POSSESS PRIOR TO THE DECISION OF THE UNITED STATES SUPREME COURT IN THE
SOUTHEASTERN UNDERWRITERS ASSOCIATION CASE."  H.R. REP. NO. 143, 79TH
CONG., 1ST SESS., 3 (1945). 

GIVEN THIS HISTORY, THE LANGUAGE OF THE STATUTE TAKES ON A DIFFERENT
COLORATION.  THE STATUTE DID NOT PURPORT TO MAKE THE STATES SUPREME IN
REGULATING ALL THE ACTIVITIES OF INSURANCE COMPANIES; ITS LANGUAGE
REFERS NOT TO THE PERSONS OR COMPANIES WHO ARE SUBJECT TO STATE
REGULATION, BUT TO LAWS "REGULATING THE BUSINESS OF INSURANCE." 
INSURANCE COMPANIES MAY DO MANY THINGS WHICH ARE SUBJECT TO PARAMOUNT
FEDERAL REGULATION; ONLY WHEN THEY ARE ENGAGED IN THE "BUSINESS OF
INSURANCE" DOES THE STATUTE APPLY.  CERTAINLY THE FIXING OF RATES IS
PART OF THIS BUSINESS; THAT IS WHAT SOUTH-EASTERN UNDERWRITERS WAS ALL
ABOUT.  THE SELLING AND ADVERTISING OF POLICIES, FTC V. NATIONAL
CASUALTY CO., 357 U.S. 560 (1958), AND THE LICENSING OF COMPANIES AND
THEIR AGENTS, CF.  ROBERTSON V. CALIFORNIA, 328 U.S. 440 (1946), ARE
ALSO WITHIN THE SCOPE OF THE STATUTE.  CONGRESS WAS CONCERNED WITH THE
TYPE OF STATE REGULATION THAT CENTERS AROUND THE CONTRACT OF INSURANCE,
THE TRANSACTION WHICH PAUL V. VIRGINIA HELD WAS NOT "COMMERCE."  THE
RELATIONSHIP BETWEEN INSURER AND INSURED, THE TYPE OF POLICY WHICH
COULD BE ISSUED, ITS RELIABILITY, INTERPRETATION, AND ENFORCEMENT--
THESE WERE THE CORE OF THE "BUSINESS OF INSURANCE."  UNDOUBTEDLY, OTHER
ACTIVITIES OF INSURANCE COMPANIES RELATE SO CLOSELY TO THEIR STATUS AS
RELIABLE INSURERS THAT THEY TOO MUST BE PLACED IN THE SAME CLASS.  BUT
WHATEVER THE EXACT SCOPE OF THE STATUTORY TERM, IT IS CLEAR WHERE THE
FOCUS WAS-- IT WAS ON THE RELATIONSHIP BETWEEN THE INSURANCE COMPANY
AND THE POLICYHOLDER.  STATUTES AIMED AT PROTECTING OR REGULATING THIS
RELATIONSHIP, DIRECTLY OR INDIRECTLY, ARE LAWS REGULATING THE "BUSINESS
OF INSURANCE." 

IN THIS CASE, ARIZONA IS CONCERNING ITSELF WITH A MARKEDLY DIFFERENT
SET OF PROBLEMS.  IT IS ATTEMPTING TO REGULATE NOT THE "INSURANCE"
RELATIONSHIP, BUT THE RELATIONSHIP BETWEEN A STOCKHOLDER AND THE
COMPANY IN WHICH HE OWNS STOCK.  THIS IS NOT INSURANCE REGULATION, BUT
SECURITIES REGULATION.  IT IS TRUE THAT THE STATE STATUTE APPLIES ONLY
TO INSURANCE COMPANIES.  BUT MERE MATTERS OF FORM NEED NOT DETAIN US.
THE CRUCIAL POINT IS THAT HERE THE STATE HAS FOCUSED ITS ATTENTION ON
STOCKHOLDER PROTECTION; IT IS NOT ATTEMPTING TO SECURE THE INTERESTS OF
THOSE PURCHASING INSURANCE POLICIES.  SUCH REGULATION IS NOT WITHIN THE
SCOPE OF THE MCCARRAN-FERGUSON ACT. 

THIS READING OF THE ACT IS IMPLICIT IN THIS COURT'S PAST DECISIONS. 
LESS THAN TWO YEARS AGO THE COURT APPROVED THE APPLICATION OF THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, SEC. 5, 48
STAT. 77, 15 U.S.C. 77E, TO CERTAIN ANNUITY CONTRACTS ISSUED BY
INSURANCE COMPANIES.  SEC V. UNITED BENEFIT LIFE INSURANCE CO., 387
U.S. 202 (1967).  THE COURT EXPLICITLY REJECTED ARGUMENTS BASED ON THE
MCCARRAN-FERGUSON ACT IN A SIMILAR CASE OF SLIGHTLY EARLIER VINTAGE. 
SEC V. VARIABLE ANNUITY LIFE INSURANCE CO., 359 U.S. 65, 67-68 (1959). 
ALTHOUGH THE SECURITIES LAWS CONTAIN A NUMBER OF EXEMPTIONS RELATING TO
INSURANCE AND INSURANCE COMPANIES, /3/  THE COMMISSION HAS
TRADITIONALLY REGULATED A NUMBER OF ACTIVITIES RELATED TO INSURANCE
SECURITIES.  /4/  OF COURSE, UNDER THE SECURITIES LAWS STATE REGULATION
MAY CO-EXIST WITH THAT OFFERED UNDER THE FEDERAL SECURITIES LAWS.  SEE,
E.G., SECURITIES ACT OF 1933, SEC. 18, 48 STAT. 85, 15 U.S.C. 77R;
SECURITIES EXCHANGE ACT OF 1934, SEC. 28(A), 48 STAT. 903, 15 U.S.C.
78BBA).  BUT IT HAS NEVER BEEN HELD THAT STATE REGULATION OF INSURANCE
SECURITIES PRE-EMPTS FEDERAL REGULATION, ON THE THEORY THAT THE FEDERAL
SECURITIES LAWS WOULD BE "SUPERSEDING" STATE LAWS REGULATING THE
"BUSINESS OF INSURANCE."  THE FACT THAT ARIZONA PURPORTS TO PROTECT THE
INTERESTS OF INSURANCE COMPANY STOCKHOLDERS DOES NOT, THEREFORE, BY
ITSELF RENDER THE FEDERAL SECURITIES LAWS INAPPLICABLE. 

     II. 

THE FACT REMAINS, HOWEVER, THAT THE STATE OF ARIZONA HAS APPROVED A
MERGER BETWEEN TWO INSURANCE COMPANIES WHICH, AS A MATTER OF REMEDIES,
THE SECURITIES AND EXCHANGE COMMISSION SEEKS TO UNWIND.  MOREOVER,
ARIZONA HAS APPROVED THE MERGER NOT ONLY UNDER ITS LAWS RELATING TO
INSURANCE SECURITIES BUT ALSO IN ITS CAPACITY AS LICENSOR OF INSURERS
WITHIN THE STATE.  THE APPLICABLE STATUTE REQUIRES THE STATE DIRECTOR
OF INSURANCE TO FIND THAT THE PROPOSED MERGER WOULD NOT "SUBSTANTIALLY
REDUCE THE SECURITY OF AND SERVICE TO BE RENDERED TO POLICYHOLDERS"
BEFORE HE GIVES HIS APPROVAL.  ARIZ. REV. STAT. ANN. SEC. 20-731B3
(SUPP. 1969).  THIS SECTION OF THE STATUTE CLEARLY RELATES TO THE
"BUSINESS OF INSURANCE."  THE QUESTION IS, THEN, WHETHER THE MCCARRAN
FERGUSON ACT BARS A FEDERAL REMEDY WHICH AFFECTS A MATTER SUBJECT TO
STATE INSURANCE REGULATION.  IN THE CIRCUMSTANCES OF THIS PARTICULAR
CASE, WE DO NOT THINK IT DOES; WITHOUT INTIMATING ANY OPINION ABOUT
WHAT REMEDIES WOULD BE APPROPRIATE SHOULD A VIOLATION BE FOUND AFTER A
TRIAL ON THE MERITS, WE HOLD THAT THE MCCARRAN-FERGUSON ACT FURNISHES
NO REASON FOR REFUSING THE REMEDIES THE COMMISSION IS SEEKING.  /5/ 
THE COMMISSION ALLEGED THAT APPROVAL OF THE MERGER WAS OBTAINED THROUGH
THE USE OF VARIOUS FRAUDULENT MISREPRESENTATIONS.  IT DID NOT ASK THE
TRIAL COURT TO PASS DIRECTLY UPON A MERGER WHICH THE STATE DIRECTOR OF
INSURANCE HAD APPROVED.  NO QUESTION OF THE LEGALITY OR ILLEGALITY OF
THE MERGER, STANDING ALONE, WAS RAISED.  THE GRAVAMEN OF THE COMPLAINT
WAS THE MISREPRESENTATION, NOT THE MERGER.  THE MERGER BECAME RELEVANT
ONLY INSOFAR AS IT WAS NECESSARY TO ATTACK IT IN ORDER TO UNDO THE HARM
CAUSED BY THE ALLEGED DECEPTION.  PRESUMABLY, FULL DISCLOSURE WOULD
HAVE AVOIDED THE PARTICULAR RULE 10B-5 VIOLATIONS ALLEGED IN THE
COMPLAINT.  NEVERTHELESS, RESPONDENTS CONTEND THAT ANY ATTEMPT TO
INTERFERE WITH A MERGER APPROVED BY STATE INSURANCE OFFICIALS WOULD
"INVALIDATE, IMPAIR, OR SUPERSEDE" THE STATE INSURANCE LAWS MADE
PARAMOUNT BY THE MCCARRAN-FERGUSON ACT.  WE CANNOT ACCEPT THIS OVERLY
BROAD RESTRICTION ON FEDERAL POWER. 

IT IS CLEAR THAT ANY "IMPAIRMENT" IN THIS CASE IS A MOST INDIRECT
ONE.  THE FEDERAL GOVERNMENT IS ATTEMPTING TO PROTECT SECURITY HOLDERS
FROM FRAUDULENT MISREPRESENTATIONS; ARIZONA, INSOFAR AS ITS ACTIVITIES
ARE PROTECTED BY THE MCCARRAN-FERGUSON ACT FROM THE NORMAL OPERATIONS
OF THE SUPREMACY CLAUSE, IS ATTEMPTING TO PROTECT THE INTERESTS OF THE
POLICYHOLDERS.  ARIZONA HAS NOT COMMANDED SOMETHING WHICH THE FEDERAL
GOVERNMENT SEEKS TO PROHIBIT.  IT HAS PERMITTED RESPONDENTS TO
CONSUMMATE THE MERGER; IT DID NOT ORDER THEM TO DO SO.  IN THIS
CONTEXT, ALL THE SECURITIES AND EXCHANGE COMMISSION IS ASKING IS THAT
INSURANCE COMPANIES SPEAK THE TRUTH WHEN TALKING TO THEIR
SHAREHOLDERS.  THE PARAMOUNT FEDERAL INTEREST IN PROTECTING
SHAREHOLDERS IS IN THIS SITUATION PERFECTLY COMPATIBLE WITH THE
PARAMOUNT STATE INTEREST IN PROTECTING POLICYHOLDERS.  AND THE REMEDY
THE COMMISSION SEEKS DOES NOT AFFECT A MATTER PREDOMINANTLY OF CONCERN
TO POLICYHOLDERS ALONE; THE MERGER IS AT LEAST AS IMPORTANT TO THOSE
OWNING THE COMPANIES' STOCK AS IT IS TO THOSE HOLDING THEIR POLICIES. 
IN THESE CIRCUMSTANCES, WE SIMPLY CANNOT SEE THE CONFLICT.  DIFFERENT
QUESTIONS WOULD, OF COURSE, ARISE IF THE FEDERAL GOVERNMENT WERE
ATTEMPTING TO REGULATE IN THE SPHERE RESERVED PRIMARILY TO THE STATES
BY THE MCCARRAN-FERGUSON ACT.  BUT THAT IS NOT THIS CASE.  IN THESE
CIRCUMSTANCES, THERE IS NO REASON TO EMASCULATE THE SECURITIES LAWS BY
FORBIDDING REMEDIES WHICH MIGHT PROVE TO BE ESSENTIAL.  CF. J. I. CASE
CO. V. BORAK, 377 U.S. 426 (1964).  ON REMAND, THE TRIAL COURT MAY
ORDER A RETURN TO THE STATUS QUO ANTE IF IT FINDS THAT COURSE OF ACTION
DESIRABLE, NECESSARY, AND OTHERWISE LAWFUL. 

        III. 

RESPONDENTS ARGUE THAT THERE ARE ALTERNATIVE GROUNDS ON WHICH THE
LOWER COURTS' ACTION IN GRANTING JUDGMENT ON THE PLEADINGS CAN BE
SUSTAINED.  THEY CONTEND THAT THE COMPLAINT FAILS TO ALLEGE A "PURCHASE
OR SALE" OF SECURITIES WITHIN THE MEANING OF SEC. 10(B) AND THE
COMMISSION'S RULE 10B-5, AND THAT IN ANY CASE RULE 10B-5 DOES NOT APPLY
TO MISREPRESENTATIONS IN CONNECTION WITH THE SOLICIATION OF PROXIES. 
/6/  SINCE THIS CASE IS HERE IN THE CONTEXT OF AN APPEAL FROM THE
PRETRIAL DISMISSAL OF A COMPLAINT, A SIMPLE REMAND WOULD LEAVE THE
LOWER COURTS WITH NOTHING MORE ON WHICH TO BASE A DECISION THAN THE
RECORD PRESENTLY BEFORE THIS COURT.  IN ADDITION, FURTHER DELAYS IN
RESOLVING THIS CONTROVERSY MIGHT INCREASE THE DIFFICULTY OF FASHIONING
EFFECTIVE RELIEF.  ACCORDINGLY, WE THINK IT DESIRABLE TO DISPOSE OF
THESE TWO ISSUES BEFORE REMANDING THE CASE SO THAT THE TRIAL COURT MAY
GO FORWARD WITH FURTHER PROCEEDINGS WITHOUT UNDUE DELAY. 

ALTHOUGH SEC. 10(B) AND RULE 10B-5 MAY WELL BE THE MOST LITIGATED
PROVISIONS IN THE FEDERAL SECURITIES LAWS, THIS IS THE FIRST TIME THIS
COURT HAS FOUND IT NECESSARY TO INTERPRET THEM.  WE ENTER THIS VIRGIN
TERRITORY CAUTIOUSLY.  THE QUESTIONS PRESENTED ARE NARROW ONES.  THEY
ARISE IN AN AREA WHERE GLIB GENERALIZATIONS AND UNTHINKING ABSTRACTIONS
ARE MAJOR OCCUPATIONAL HAZARDS.  ACCORDINGLY, IN DECIDING THIS
PARTICULAR CASE, REMEMBERING WHAT IS NOT INVOLVED IS AS IMPORTANT AS
DETERMINING WHAT IS.  WITH THIS IN MIND, WE TURN TO RESPONDENTS'
PARTICULAR CONTENTIONS. 

RESPONDENTS ARGUE THAT THE COMPLAINT FAILS TO ALLEGE ANY
MISSTATEMENTS "IN CONNECTION WITH THE PURCHASE OR SALE OF ANY
SECURITY," AS IS REQUIRED BY BOTH THE STATUTE AND THE RULE.  THEY RELY
UPON THE SO-CALLED "NO-SALE DOCTRINE" PRESENTLY SET FORTH IN THE
COMMISSION'S RULE 133 UNDER THE SECURITIES ACT OF 1933, 17 CFR 230.133
(1968).  /7/  THAT RULE, PROMULGAGED UNDER THE COMMISSION'S AUTHORITY
TO DEFINE "ACCOUNTING, TECHNICAL, AND TRADE TERMS" USED IN THE 1933
ACT, SEC. 19(A), 48 STAT. 85, AS AMENDED, 15 U.S.C. 77S, SETS FORTH
VARIOUS SITUATIONS INVOLVING STATUTORY MERGERS AND OTHER TYPES OF
CORPORATE REORGANIZATIONS, AND DECLARES THAT NO "SALE" OR "OFFER" SHALL
BE DEEMED TO BE INVOLVED.  BUT WHATEVER MAY BE THE VALIDITY OR EFFECT
OF THIS RULE-- AND WE INTIMATE ABSOLUTELY NO OPINION ON THESE QUESTIONS
- IT CERTAINLY DOES NOT DETERMINE THE RESULT HERE.  THE RULE IS
SPECIFICALLY MADE APPLICABLE ONLY TO CASES INVOLVING SEC. 5 OF THE 1933
ACT; THIS CASE ARISES UNDER SEC. 10(B) OF THE 1934 ACT.  ALTHOUGH THE
INTERDEPENDENCE OF THE VARIOUS SECTIONS OF THE SECURITIES LAWS IS
CERTAINLY A RELEVANT FACTOR IN ANY INTERPRETATION OF THE LANGUAGE
CONGRESS HAS CHOSEN, ORDINARY RULES OF STATUTORY CONSTRUCTION STILL
APPLY.  THE MEANING OF PARTICULAR PHRASES MUST BE DETERMINED IN
CONTEXT, SEC V. C. M. JOINER LEASING CORP., 320 U.S. 344, 350-351
(1943).  CONGRESS ITSELF HAS CAUTIONED THAT THE SAME WORDS MAY TAKE ON
A DIFFERENT COLORATION IN DIFFERENT SECTIONS OF THE SECURITIES LAWS;
BOTH THE 1933 AND THE 1934 ACTS PREFACE THEIR LISTS OF GENERAL
DEFINITIONS WITH THE PHRASE "UNLESS THE CONTEXT OTHERWISE REQUIRES." 
1933 ACT, SEC. 2, 48 STAT. 74, 15 U.S.C. 77B; 1934 ACT, SEC. 3, 48
STAT. 882, 15 U.S.C. 78C.  WE MUST THEREFORE ADDRESS OURSELVES TO THE
MEANING OF THE WORDS "PURCHASE OR SALE" IN THE CONTEXT OF SEC. 10(B). 
WHATEVER THESE OR SIMILAR WORDS MAY MEAN IN THE NUMEROUS OTHER CONTEXTS
IN WHICH THEY APPEAR IN THE SECURITIES LAWS, ONLY THIS ONE NARROW
QUESTION IS PRESENTED HERE. 

BROAD ANTIFRAUD PROVISIONS CONTAINED IN THE SECURITIES LAWS.  IN THE
CONTEXT OF THIS CASE, THE COMMISSION SEEKS TO APPLY THEM TO PREVENT THE
SHAREHOLDERS OF PRODUCERS FROM BEING DEFRAUDED AS A RESULT OF
MISSTATEMENTS MADE BY RESPONDENTS.  FOR THE STATUTE AND THE RULE TO
APPLY, THE ALLEGEDLY PROSCRIBED CONDUCT MUST HAVE BEEN "IN CONNECTION
WITH THE PURCHASE OR SALE OF ANY SECURITY."  THE RELEVANT DEFINITIONAL
DECLARE GENERALLY THAT THE TERMS "PURCHASE" AND "SALE" SHALL INCLUDE
CONTRACTS TO PURCHASE OR SELL.  SECS. 3(A)(13), (14), 48 STAT. 884, 15
U.S.C. 78CA)(13), (14).  /8/  CONSEQUENTLY, WE MUST ASK WHETHER
RESPONDENTS' ALLEGED CONDUCT IS THE TYPE OF FRAUDULENT BEHAVIOR WHICH
WAS MEANT TO BE FORBIDDEN BY THE STATUTE AND THE RULE. 

ACCORDING TO THE AMENDED COMPLAINT, PRODUCERS' SHAREHOLDERS WERE
MISLED IN VARIOUS MATERIAL RESPECTS PRIOR TO THEIR APPROVAL OF A
MERGER.  THE DECEPTION FURTHERED A SCHEME WHICH RESULTED IN THEIR
LOSING THEIR STATUS AS SHAREHOLDERS IN PRODUCERS AND BECOMING
SHAREHOLDERS IN A NEW COMPANY.  MOREOVER, BY VOTING IN FAVOR OF THE
MERGER, EACH APPROVING SHAREHOLDER INDIVIDUALLY LOST ANY RIGHT UNDER
ARIZONA LAW TO OBTAIN AN APPRAISAL OF HIS STOCK AND PAYMENT FOR IT IN
CASH.  ARIZ. REV. STAT. ANN. SEC. 10-347 (1956).  WHATEVER THE TERMS
"PURCHASE" AND "SALE" MAY MEAN IN OTHER CONTEXTS, HERE AN ALLEGED
DECEPTION HAS AFFECTED INDIVIDUAL SHAREHOLDERS' DECISIONS IN A WAY NOT
AT ALL UNLIKE THAT INVOLVED IN A TYPICAL CASH SALE OR SHARE EXCHANGE. 
THE BROAD ANTIFRAUD PURPOSES OF THE STATUTE AND THE RULE WOULD CLEARLY
BE FURTHERED BY THEIR APPLICATION TO THIS TYPE OF SITUATION.  THEREFORE
WE CONCLUDE THAT PRODUCERS' SHAREHOLDERS "PURCHASED" SHARES IN THE NEW
COMPANY BE EXCHANGING THEM FOR THEIR OLD STOCK.  /9/  AS THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT HAS SAID, "THIS VIEW DOES NO VIOLENCE
TO THE STATUTORY LANGUAGE, AND IS THE PRESENT INTERPRETATION OF THE
BODY WHICH IS RESPONSIBLE FOR THE ADMINISTRATION OF THE ACTS."  DASHO
V. SUSQUEHANNA CORP., 380 F.2D 262, 269 (OPINION OF FAIRCHILD AND
CUMMINGS, JJ.), CERT. DENIED, SUB NOM. BARD V. DASHO, 389 U.S. 977
(1967); SEE VINE V. BENEFICIAL FINANCE CO., 374 F.2D 627 (C.A.2D CIR.),
CERT. DENIED, 389 U.S. 970 (1967); CF. RUCKLE V. ROTO AMERICAN CORP.,
339 F.2D 24 (C.A.2D CIR. 1964). 

RESPONDENTS' ALTERNATIVE ARGUMENT THAT RULE 10B-5 DOES NOT COVER
MISREPRESENTATIONS WHICH OCCUR IN CONNECTION WITH PROXIY SOLICITATIONS
CAN BE DISMISSED RATHER QUICKLY.  SECTION 14 OF THE 1934 ACT, 48 STAT.
895, 15 U.S.C. 78N, AND THE RULES ADOPTED PURSUANT TO THAT SECTION, 17
CFR 240.14A-1 TO 240.14A-103 (1968), SET UP A COMPLEX REGULATORY SCHEME
COVERING PROXY SOLICITATIONS.  AT THE TIME OF THE CONDUCT CHARGED IN
THE COMPLAINT, THESE PROVISIONS DID NOT APPLY TO RESPONDENTS; THE 1964
AMENDMENTS TO THE SECURITIES EXCHANGE ACT WOULD HAVE MADE THEM
APPLICABLE LATER IF CERTAIN CONDITIONS RELATING TO STATE REGULATION HAD
NOT BEEN MET.  78 STAT. 567, 15 U.S.C. 78LG)(2)(G).  BUT THE EXISTENCE
OR NONEXISTENCE OF REGULATION UNDER SEC. 14 WOULD NOT AFFECT THE SCOPE
OF SEC. 10(B) AND RULE 10B-5.  THE TWO SECTIONS OF THE ACT APPLY TO
DIFFERENT SETS OF SITUATIONS.  SECTION 10(B) APPLIES TO ALL PROSCRIBED
CONDUCT IN CONNECTION WITH A PURCHASE OR SALE OF ANY SECURITY; SEC. 14
APPLIES TO ALL PROXY SOLICITATIONS, WHETHER OR NOT IN CONNECTION WITH A
PURCHASE OR SALE.  THE FACT THAT THERE MAY WELL BE SOME OVERLAP IS
NEITHER UNUSUAL NOR UNFORTUNATE.  NOR DOES IT HLEP RESPONDENTS THAT
INSURANCE COMPANIES MAY OFTEN BE EXEMPT FROM FEDERAL PROXY REGULATIONS
UNDER THE 1964 AMENDMENTS.  THE SECURITIES LAWS'  EXEMPTIONS FOR
INSURANCE COMPANIES AND INSURANCE ACTIVITIES ARE CAREFULLY LIMITED. 
NONE IS APPLICABLE TO THE RULE 10B-5 SITUATION WITH WHICH WE ARE
CONFRONTED, AND WE DO NOT HAVE THE POWER TO CREATE ONE.  CONGRESS MAY
WELL HAVE CONCLUDED THAT THE COMMISSION'S GENERAL ANTIFRAUD POWERS OVER
PURCHASES AND SALES OF SECURITIES SHOULD CONTINUE TO APPLY TO INSURANCE
SECURITIES, EVEN THOUGH THE MORE DETAILED REGULATION OF PROXY
SOLICITATIONS-- WHICH MAY OFTEN BE CONDUCTED IN CONNECTION WITH THE
MANAGERIAL ACTIVITIES OF INSURANCE COMPANIES-- WAS LEFT TO THE STATES. 
ACCORDINGLY, WE FIND NO BAR TO THE APPLICATION OF RULE 10B-5 TO
RESPONDENTS' MISSTATEMENTS IN THEIR PROXY MATERIALS. 

SINCE THE MCCARRAN-FERGUSON ACT DOES NOT PROHIBIT THE RELIEF SOUGHT,
AND SINCE NEITHER OF THE ALTERNATIVE GROUNDS FOR DISMISSAL WHICH HAVE
BEEN RAISED HERE IS MERITORIOUS, WE REVERSE THE JUDGMENT OF THE COURT
OF APPEALS AND REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  "NO ACT OF CONGRESS SHALL BE CONSTRUED TO INVALIDATE, IMPAIR,
OR SUPERSEDE ANY LAW ENACTED BY ANY STATE FOR THE PURPOSE OF REGULATING
THE BUSINESS OF INSURANCE, OR WHICH IMPOSES A FEE OR TAX UPON SUCH
BUSINESS, UNLESS SUCH ACT SPECIFICALLY RELATES TO THE BUSINESS OF
INSURANCE:  PROVIDED, THAT AFTER JUNE 30, 1948, THE ACT OF JULY 2,
1890, AS AMENDED, KNOWN AS THE SHERMAN ACT, AND THE ACT OF OCTOBER 15,
1914, AS AMENDED, KNOWN AS THE CLAYTON ACT, AND THE ACT OF SEPTEMBER
26, 1914, KNOWN AS THE FEDERAL TRADE COMMISSION ACT, AS AMENDED, SHALL
BE APPLICABLE TO THE BUSINESS OF INSURANCE TO THE EXTENT THAT SUCH
BUSINESS IS NOT REGULATED BY STATE LAW." 

/2/  IN 1966 ARIZONA LAW WAS AMENDED TO GIVE HIM THIS POWER.  SEE
ARIZ. REV. STAT. ANN. SEC. 20-143 (SUPP. 1969).  THIS STATUTE WAS
PASSED IN RESPONSE TO THE 1964 AMENDMENTS TO THE SECURITIES EXCHANGE
ACT.  PUB. L. 88-467, 78 STAT. 565. 

/3/  E.G., SECURITIES ACT OF 1933, SEC. 3(A)(8), 48 STAT. 76, 15
U.S.C. 77CA)(8); SECURITIES EXCHANGE ACT OF 1934, SEC. 12(G)(2)(G),
ADDED BY PUB. L. 88-467, 78 STAT. 567 (1964), 15 U.S.C. 78LG)(2)(G). 

/4/  THE COMMISSION LISTS A LARGE NUMBER OF EXAMPLES OF ITS
ACTIVITIES IN ITS BRIEF.  BRIEF FOR PETITIONER 16-17. 

/5/  ALTHOUGH THE DISTRICT COURT HELD THAT SOME OF THE RELIEF
REQUESTED WAS BEYOND THAT PROPERLY ALLOWABLE UNDER SEC. 21(E) OF THE
1934 ACT, 48 STAT. 900, AS AMENDED, 15 U.S.C. 78UE), NO SUCH QUESTION
HAS BEEN ARGUED BY EITHER PARTY HERE.  ACCORDINGLY, WE EXPRESS NO
OPINION ABOUT THE PROPER CONSTRUCTION OF THAT SECTION.  SEE NOTE,
ANCILLARY RELIEF IN SEC INJUNCTION SUITS FOR VIOLATION OF RULE 10B-5,
78 HARV.L.REV.  656 (1966). 

/6/  SECTION 10(B) OF THE SECURITIES EXCHANGE ACT OF 1934, 48 STAT.
891, 15 U.S.C. 78JB), PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, DIRECTLY OR INDIRECTLY, BY THE
USE OF ANY MEANS OR INSTRUMENTALITY OF INTERSTATE COMMERCE OR OF THE
MAILS, OR OF ANY FACILITY OF ANY NATIONAL SECURITIES EXCHANGE--

        *          *          *          * 

"(B) TO USE OR EMPLOY, IN CONNECTION WITH THE PURCHASE OR SALE OF
ANY SECURITY REGISTERED ON A NATIONAL SECURITIES EXCHANGE OR ANY
SECURITY NOT SO REGISTERED, ANY MANIPULATIVE OR DECEPTIVE DEVICE OR
CONTRIVANCE IN CONTRAVENTION OF SUCH RULES AND REGULATIONS AS THE
COMMISSION MAY PRESCRIBE AS NECESSARY OR APPROPRIATE IN THE PUBLIC
INTEREST OR FOR THE PROTECTION OF INVESTORS." 

RULE 10B-5, 17 CFR 240.10B-5 (1968), PROVIDES:     "IT SHALL BE
UNLAWFUL FOR ANY PERSON, DIRECTLY OR INDIRECTLY, BY THE USE OF ANY
MEANS OR INSTRUMENTALITY OF INTERSTATE COMMERCE, OR OF THE MAILS OR OF
ANY FACILITY OF ANY NATIONAL SECURITIES EXCHANGE, 

"(A) TO EMPLOY ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD, 

"(B) TO MAKE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR TO OMIT TO
STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE,
IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING, OR 

"(C) TO ENGAGE IN ANY ACT, PRACTICE, OR COURSE OF BUSINESS WHICH
OPERATES OR WOULD OPERATE AS A FRAUD OR DECEIT UPON ANY PERSON, IN
CONNECTION WITH THE PURCHASE OR SALE OF ANY SECURITY." 

/7/ FOR THE HISTORY OF THIS DOCTRINE, SEE 1 L. LOSS, SECURITIES
REGULATION 518-542 (1961). 

/8/  THESE SECTIONS DO INDICATE THE BREADTH OF THE STATUTORY TERMS
BY USING THE DEFINITIONAL WORD "INCLUDE" AND BY INCLUDING WITHIN THE
DEFINITIONS CONTRACTS "TO BUY, PURCHASE, OR OTHERWISE ACQUIRE" AND "TO
SELL OR OTHERWISE DISPOSE OF" SECURITIES. 

/9/  THIS CASE PRESENTS NONE OF THE COMPLICATIONS WHICH MAY ARISE IN
DETERMINING WHO, IF ANYONE, MAY BRING PRIVATE ACTIONS UNDER SEC. 10(B)
AND RULE 10B-5.  CF. J. I. CASE CO. V. BORAK, 377 U.S. 426 (1964). 
THIS IS A SUIT BROUGHT BY THE COMMISSION; THE TERMS "PURCHASE" AND
"SALE" ARE RELEVANT ONLY TO THE QUESTION OF STATUTORY COVERAGE. 
THEREFORE THERE ARE NO "STANDING" PROBLEMS LURKING IN THE CASE.  CF.
LOWENFELS, THE DEMISE OF THE BIRNBAUM DICTRINE:  A NEW ERA FOR RULE 10B
5, 54 VA.L.REV.  268 (1968). 

MR. JUSTICE BLACK, BELIEVING THAT THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT CORRECTLY ANALYZED THE ISSUES IN THIS CASE AND
THAT ITS JUDGMENT IS RIGHT, DISSENTS FROM THIS COURT'S REVERSAL OF THE
JUDGMENT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

I CONCUR ENTIRELY IN PARTS I AND II OF THE COURT'S OPINION
CONSTRUING THE MCCARRAN-FERGUSON ACT.  BUT I AM AT A LOSS TO UNDERSTAND
WHY THE COURT FINDS IT NECESSARY TO GO FURTHER AND CONSTRUE RULE 10B-5
PROMULGATED UNDER SEC. 10(B) OF THE SECURITIES EXCHANGE ACT OF 1934. 
THE COURT OF APPEALS DID NOT REACH THIS QUESTION SINCE IT BELIEVED THAT
THE MCCARRAN-FERGUSON ACT ENTIRELY EXEMPTED THE TRANSACTION INVOLVED
HERE FROM THE COMMANDS OF THE FEDERAL SECURITIES LAWS.  THE
GOVERNMENT'S PETITION FOR CERTIORARI IS SIMILARLY LIMITED.  THE ONLY
ISSUE IT RAISES IS "(WHETHER THE MCCARRAN-FERGUSON ACT . . . PRECLUDES
THE APPLICATION OF THE ANTI-FRAUD PROVISIONS OF THE SECURITIES EXCHANGE
ACT OF 1934.  . . . "  SEE PETITION FOR CERTIORAR 2.  WHEN THE
RESPONDENTS' BRIEF ON THE MERITS ARGUED THAT RULE 10B-5 DID NOT APPLY
TO THE PRESENT CASE, THE SOLICITOR GENERAL DID NOT EVEN ATTEMPT TO
PRESENT THE GOVERNMENT'S POSITION ON THAT ASCORE BECAUSE HE QUITE
PROPERLY BELIEVED THAT "THE QUESTION IS NOT APPROPRIATELY BEFORE THIS
COURT FOR DECISION."  GOVERNMENT'S REPLY BRIEF 2. 

DESPITE THE FACT THAT WE HAVE NOT HEARD THE VIEWS OF THE SECURITIES
AND EXCHANGE COMMISSION, THE COURT CHOOSES THIS CASE AS A VEHICLE TO
CONSTRUE FOR THE FIRST TIME ONE OF THE MOST IMPORTANT AND ELUSIVE
PROVISIONS OF THE SECURITIES LAWS.  MOREOVER, THE DECISION HAS
FARREACHING RADIATIONS, DESPITE THE FACT THAT THE PRECISE ISSUE
PRESENTED IS A NARROW ONE.  COURTS AND COMMENTATORS HAVE LONG DEBATED
WHETHER RULE 10B-5 SHOULD BE READ AS A SWEEPING PROHIBITION AGAINST
FRAUD IN THE SECURITIES INDUSTRY WHEN THIS RESULTS IN RENDERING
NULLITIES OF THE OTHER ANTIFRAUD PROVISIONS OF MORE LIMITED SCOPE WHICH
CAN BE FOUND IN THE STATUTE BOOKS.  SEE, E.G. SECS. 11(A), 12(2), AND
13 OF THE SECURITIES ACT OF 1933; SEC. 18 OF THE SECURITIES AND
EXCHANGE ACT OF 1934.  THE LATE JUDGE JEROME FRANK, /1/  PROFESSOR
LOUIS LOSS, /2/  AND MILTON COHEN, /3/  -- TO MENTION ONLY THREE OF
THOSE PARTICULARLY EMINENT IN THIS FIELD-- HAVE WARNED THAT RULE 10B-5
SHOULD NOT BE CONSTRUED TO SUPERSEDE THE SPECIAL STATUTORY SCHEMES
WHICH CONGRESS HAS DEVISED TO ASSURE FAIR DEALING IN VARIOUS ASPECTS OF
THE SECURITIES BUSINESS.  BUT SEE A. BROMBERG, SECURITIES LAW SEC. 2.5
(1967); ELLIS V. CARTER, 291 F.2D 270 (1961).  EVEN THOSE WHO TAKE AN
EXTREMELY BROAD VIEW OF THE SCOPE OF THE RULE HAVE RECOGNIZED THAT IT
COULD WELL BE ARGUED THAT THE COURTS SHOULD NOT RUSH IN TO APPLY SEC.
10(B) TO REGULATE PROXY SOLICITATIONS WHERE CONGRESS HAS REFUSED TO
PERMIT THE COMMISSION TO INTERVENE UNDER SEC. 14.  SEE BROMBERG, SUPRA,
SEC. 6.5(2), N. 93.1.  INDEED, AT ONE TIME THE SEC ITSELF WAS OF THE
OPINION THAT THE RULE DID NOT APPLY IN CASES OF THIS SORT.  NATIONAL
SUPPLY CO. V. LELAND STANFORD UNIVERSITY, 134 F.2D 689, 694 (1943). 
NEVERTHELESS, THE MAJORITY BELIEVES IT CAN ANSWER THIS QUESTION "RATHER
QUICKLY," ANTE, AT 468, WITHOUT ANY REAL RECOGNITION OF THE BASIC
PRINCIPLES WHICH HANG IN THE BALANCE. 

IN ADDITION, THE COURT HAS CHOSEN TO ADOPT A VERY LOOSE CONSTRUCTION
OF THE REQUIREMENT, FIRST ENUNCIATED BY JUDGE AUGUSTUS HAND IN BIRNBAUM
V. NEWPORT STEEL CORP., 193 F.2D 461 (1951), CERT. DENIED 343 U.S. 956
(1952), THAT A TRANSACTION MUST INVOLVE A "PURCHASE" OR "SALE" OF
SECURITIES BEFORE IT MAY BE FOUND TO VIOLATE RULE 10B-5.  WHILE SOME
COMMENTATORS HAVE WELCOMED THE EROSION OF THIS DOCTRINE, SEE LOWENFELS,
THE DEMISE OF THE BIRNBAUM DOCTRINE:  A NEW ERA FOR RULE 10B-5, 54
VA.L.REV.  268 (1968), ESPECIALLY IN INJUNCTION ACTIONS INITIATED BY
THE SEC, NOTE, THE PURCHASER-SELLER LIMITATION TO SEC RULE 10B-5, 53
CORNELL L.REV.  684, 694-697 (1968), OTHERS BELIEVE THAT "BIRNBAUM
SEEMS BASICALLY CORRECT."  3 L.LOSS, SECURITIES REGULATION 1469.  AS
RECENTLY AS 1964, THE SECOND CIRCUIT RENDERED A DECISION WHICH HAS BEEN
COMMONLY UNDERSTOOD TO HAVE REAFFIRMED THE VITALITY OF THE BIRNBAUM
DOCTRINE, WITH MY BROTHER MARSHALL CASTING THE DECIDING VOTE.  O'NEILL
V. MAYTAG, 339 F.2D 764, 768 (1964); /4/ SEE LOWENFELS, SUPRA, AT 270. 

I AM UNWILLING TO DECIDE THESE FUNDAMENTAL MATTERS WITHOUT FULL
DRESS ARGUMENT.  INDEED, IF THE COURTS OF APPEALS ARE NOT TO BE
PERMITTED TO DEVELOP THE LAW IN THIS AREA ON A CASE-BY-CASE BASIS, I
THINK IT MUCH WISER FOR US TO CONSIDER THE BASIC ISSUES IN A CASE WHICH
SQUARELY RAISES THEM RATHER THAN IN ONE WHICH IS OF MARGINAL
IMPORTANCE. 

/1/  FISCHMAN V. RAYTHEON MANUFACTURING CO., 188 F.2D 782 (1951). 

/2/  3 SECURITIES REGULATIONS 1787-1791 (1961). 

/3/  "TRUTH IN SECURITIES" REVISITED, 79 HAR.L.REV.  1340, 1370 N.
89 (1966). 

/4/  BOTH O'NEILL AND BIRNBAUM WERE OF COURSE PRIVATE ACTIONS, AND I
DO NOT MEAN TO SUGGEST THAT MY BROTHER MARSHALL IS FALATLY INCONSISTENT
IN NOW RULING THAT THE "PURCHASE" AND "SALE" REQUIREMENT HAS BEEN MET
IN THIS CASE INVOLVING THE SEC'S REQUEST FOR AN INJUNCTION. 
NEVERTHELESS, BOTH PRIVATE AND PUBLIC ACTIONS ARISE UNDER THE SAME
RULE, AND THE LEGAL PROBLEMS INVOLVED IN THE TWO SITUATIONS, WHILE NOT
IDENTICAL, ARE CLOSELY RELATED. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR PETITIONER.  WITH
HIM ON THE BRIEFS WERE LAWRENCE G. WALLACE, PHILIP A. LOOMIS, JR.,
DAVID FERBER, EDWARD B. WAGNER, AND FRANK N. FLEISCHER. 

JOHN P. FRANK ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS A. GORDON OLSEN. 
..END :






















SKINNER V. LOUISIANA, 393 U.S. 473 


       SKINNER ET AL. V. LOUISIANA. 

        CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

        NO. 44.  ARGUED DECEMBER 10, 1968.-- DECIDED JANUARY 27,

           1969. 


251 LA. 300, 204 SO.2D 370, CERTIORARI DISMISSED. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE MARSHALL, WITH WHOM MR. CHIEF JUSTICE WARREN AND MR.
JUSTICE DOUGLAS JOIN, DISSENTING. 

PETITIONERS WERE CONVICTED OF THE POSSESSION AND SALE OF MARIHUANA
AND GIVEN LENGTHY PRISON TERMS.  THE LOUISIANA SUPREME COURT AFFIRMED. 
STATE V. SKINNER, 251 LA. 300, 204 SO.2D 370 (1967).  WE GRANTED
CERTIORARI TO CONSIDER SEVERAL ALLEGED ERRORS OCCURRING DURING THE
COURSE OF THE STATE COURT PROCEEDINGS.  SKINNER V. LOUISIANA, 391 U.S.
963 (1968). 

PETITIONERS ARGUED BEFORE THIS COURT THAT THEY WERE DENIED DUE
PROCESS OF LAW BECAUSE THE TRIAL COURT REFUSED TO DECLARE A RECESS, BUT
INSTEAD ALLOWED THE TRIAL TO CONTINUE UNTIL NEARLY 3 A.M.  /1/  THE
PRINCIPAL BASIS FOR THIS CLAIM IS THAT MR. GILL, COUNSEL FOR SKINNER
AND GUELDNER, HAD BECOME INEFFECTIVE DUE TO ILLNESS.  I BELIEVE THAT
THE FAILURE OF THE COURT TO RECESS THE TRIAL WHEN REQUESTED TO DO SO BY
GILL EFFECTIVELY DEPRIVED PETITIONERS SKINNER AND GUELDNER OF THE RIGHT
TO THE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION. 

THE FACTS ARE RELATIVELY SIMPLE.  AFTER SEVERAL CONTINUANCES, SOME
GRANTED BECAUSE OF GILL'S ILLNESS, TRIAL OF THE CASE COMMENCED ON THE
MORNING OF MARCH 21, 1966.  THE MORNING WAS CONSUMED BY SELECTION OF
THE JURY AND THE TRIAL PROPER DID NOT COMMENCE UNTIL 2:45 P.M.  THE
COURT RECESSED FROM 6:15 TO 8 P.M. FOR DINNER AND AT 11:40 P.M., THE
STATE RESTED.  AT THAT TIME, THE FOLLOWING COLLOQUY TOOK PLACE BETWEEN
COURT AND COUNSEL: 

    BY MR. GILL.  BEFORE ASKING FOR A RECESS, I WANT TO SAY THIS. 

  I HAVE DONE THE BEST I COULD.  I AM ABSOLUTELY, YOU MIGHT SAY

  MORTALLY TIRED.  WE HAVE TEN, POSSIBLY TWELVE, WITNESSES TO PLACE

  ON THE WITNESS STAND.  IF YOUR HONOR PLEASE, I AM CERTAINLY NOT

  TRYING TO PUT ANYTHING OFF.  I HAVE DONE THE BEST I COULD.  I'M

  MORTALLY TIRED. 

     "BY THE COURT.  YOU HAVE BEEN AFTER ME ALL DAY, MR. GILL. 
I'VE

  GOTTEN TIRED OF LISTENING TO YOU.  I'M GOING TO SEE IF WE CAN'T

  FINISH THIS CASE TONIGHT.  GO TO WORK AND SEE IF WE CAN'T FINISH

  THE CASE TONIGHT. 

"BY MR. GILL.  I'LL DO WHAT YOUR HONOR SAYS. 

     "BY THE COURT.  I'M SURE EVERYONE IS TIRED.  I HAVE ALREADY

  ASKED THE JURY IF THEY WANTED TO ATTEMPT TO FINISH THIS CASE

 TONIGHT AND IF WE WENT TO WORK ON IT WITHOUT TALKING SO MUCH.  . .

  . 

     "BY MR. GILL.  I WANT TO SAY ONE THING, YOUR HONOR.  I HAVE A
SEVERE CASE OF DIABETES. 

"BY THE COURT.  I KNOW YOU HAVE BEEN ILL AND I KNOW WE HAVE

 BEEN HAVING CONTINUANCES ON TOP OF CONTINUANCES BECAUSE YOU HAVE

  BEEN ILL BUT I HAVE MY DUTIES TO PERFORM TOO AND ONE OF THEM IS

  THIS CASE.  I WILL GLADLY GIVE YOU A RECESS FOR ABOUT THREE

  MINUTES AND THEN WE WILL COME BACK AND PROCEED WITH THIS CASE. 

     "BY MR. GILL.  MAY I FURTHER SAY THIS.  I TESTED MYSELF FOR
SUGAR.  . . . 

     "BY THE COURT.  WE WILL TAKE A RECESS FOR THREE MINUTES. 

"BY MR. GILL.  IF YOUR HONOR PLEASE, I RESPECTFULLY REQUEST YOUR HONOR
DECLARE A MISTRIAL." 

THEREAFTER, THE COURT RECESSED FOR 35 MINUTES AND RECONVENED AT
12:25 A.M.  THE DEFENSE THEN PRESENTED ITS CASE.  AT 3 A.M., THE COURT
DECLARED A RECESS UNTIL 9:30 THE NEXT MORNING.  WHEN THE COURT
RECONVENED, BOTH PARTIES PRESENTED THEIR ARGUMENTS TO THE JURY. 

IN THEIR MOTION FOR A NEW TRIAL, PETITIONERS ALLEGED THAT THE COURT
ERRED IN NOT DECLARING A RECESS AFTER THE STATE HAD RESTED.  THE TRIAL
COURT HELD A HEARING ON THIS ISSUE, INCLUDING THE QUESTION OF WHETHER
ANY OF THE JURORS HAD BEEN ASLEEP DURING THE TRIAL.  /2/  GILL AND HIS
PHYSICIAN TESTIFIED AT THAT HEARING.  GILL TESTIFIED THAT BY THE TIME
THE STATE HAD CONCLUDED ITS CASE HE WAS "JUST ABOUT DEAD ON (HIS) FEET"
AND THAT HE DID NOT, EITHER THAT EVENING OR THE NEXT MORNING, PRESENT
THE TYPE OF DEFENSE TO WHICH PETITIONERS WERE ENTITLED.  HE FAILED TO
ASK FOR A MISTRIAL AFTER HE HAD NOTICED A JUROR SLEEPING AND HAD NOT
CALLED TWO POSSIBLE WITNESSES.  HE HAD BEEN IN THE HOSPITAL THE WEEK
BEFORE AND HAD JUST FINISHED TRYING A CASE SHORTLY BEFORE THE PRESENT
ONE BEGAN.  DURING THAT EARLIER TRIAL, HE HAD FOUND IT NECESSARY TO GO
TO BED BY 7 P.M.  HIS PHYSICAL CONDITION CONTINUED TO DETERIORATE AND
HE ENTERED THE HOSPITAL FOR TWO WEEKS SHORTLY AFTER THE TRIAL. 

GILL'S DOCTOR THEN TESTIFIED AS TO HIS CONDITION THREE DAYS AFTER
THE TRIAL AND TO HIS PROBABLE CONDITION ON THE DAY OF THE TRIAL.  HE
TESTIFIED THAT GILL WAS SUFFERING FROM AN ACIDOTIC CONDITION DUE TO
DIABETES AND FROM NERVOUS EXHAUSTION.  THE DOCTOR TESTIFIED THAT GILL'S
EFFICIENCY AT THE TRIAL WOULD HAVE BEEN ABOUT TWO-THIRDS OF NORMAL AND,
AFTER MIDNIGHT, HE "WOULD BE PRACTICALLY INEFFECTIVE." 

THE COURT SYMPATHIZED WITH GILL BUT POINTED OUT THAT THE DOCKET HAD
TO BE CLEARED UP AND THAT THE ONLY WAY TO DO THAT IS TO "FORCE LAWYERS
TO TRY CASES."  THE MOTION FOR A NEW TRIAL WAS DENIED. 

THE LOUISIANA SUPREME COURT HELD THAT THE RECORD INDICATED THAT GILL
HAD CONDUCTED A VIGOROUS DEFENSE, RESERVING BILLS OF EXCEPTION AND
ENGAGING IN COLLOQUY WITH THE COURT.  THE TESTIMONY OF THE DOCTOR WAS
DISCOUNTED BECAUSE IT WAS NOT SUPPORTED BY THE RECORD AND BECAUSE THE
DOCTOR WAS NOT IN COURT AT THE TIME OF THE TRIAL.  ACCORDINGLY, THE
COURT FOUND NO PREJUDICE. 

THE STATE ARGUES THAT GRANTING OF RECESSES IS IN THE DISCRETION OF
THE TRIAL COURT AND THAT NO ABUSE OF THAT DISCRETION HAS BEEN
DEMONSTRATED HERE.  THIS COURT HAS FREQUENTLY INDICATED THAT THE
GRANTING OF CONTINUANCES AND RECESSES IS WITHIN THE DISCRETION OF THE
TRIAL COURT.  SEE, E.G., UNGAR V. SARAFITE, 376 U.S. 575, 589 (1964). 
NEVERTHELESS, "A MYOPIC INSISTENCE UPON EXPEDITIOUSNESS IN THE FACE OF
A JUSTIFIABLE REQUEST FOR DELAY CAN RENDER THE RIGHT TO DEFEND WITH
COUNSEL AN EMPTY FORMALTIY."  IBID.  IT IS CLEAR TO ME THAT IN THE
PRESENT CASE THE TRIAL JUDGE'S CONCERN WITH THE STATE OF HIS DOCKET HAS
RESULTED IN DEPRIVING PETITIONERS OF THEIR RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL. 

GILL MADE IT CLEAR TO THE COURT THAT HE WAS SUFFERING FROM DIABETES
AND THAT THE LENGTH OF THE DAY'S TRIAL AND THE LATENESS OF THE HOUR HAD
EXHAUSTED HIM.  AND THE COURT WAS FAMILIAR WITH THE HISTORY OF GILL'S
HEALTH PROBLEMS.  YET, BEFORE GILL COULD EVEN TELL THE COURT THE LEVEL
OF HIS BLOOD SUGAR, THE COURT DENIED HIS REQUEST FOR A RECESS.  I THINK
IT CLEAR THAT THE RECORD ESTABLISHES THAT GILL WAS SERIOUSLY ILL, TO
THE KNOWLEDGE OF THE COURT.  I THINK IT IRRELEVANT THAT HE WAS ABLE TO
CONTINUE AND PRESENT A CREDIBLE DEFENSE; WE SHOULD NOT BE REQUIRED TO
SPECULATE WHEN COUNSEL IS PERFORMING UP TO HIS CAPACITY.  NOR DO I
THINK IT RELEVANT THAT GILL DID NOT TAKE MORE AFFIRMATIVE ACTION TO
ESTABLISH THE STATE OF HIS HEALTH OR TO SECURE A RECESS OR A
CONTINUANCE THE NEXT MORNING.  AS GILL HIMSELF TESTIFIED, AND HIS
DOCTOR CONFIRMED, HIS EFFICIENCY AT THE TIME WAS PRACTICALLY NIL.  I
FIND IT HARD TO BELIEVE THAT COURT CALENDARS ARE SO CONGESTED THAT
DIABETIC COUNSEL MUST BE FORCED TO WORK UNTIL THE EARLY MORNING HOURS
TO CLEAR THEM UP.  ACCORDINGLY, I WOULD REVERSE THE CONVICTIONS OF
PETITIONERS SKINNER AND GUELDNER. 

/1/  THE OTHER ALLEGED ERRORS WERE THE ABSENCE OF ONE PETITIONER AT
HEARINGS ON CERTAIN PRE-TRIAL MOTIONS, THE ARRAIGNMENT OF ONE
PETITIONER WITHOUT COUNSEL, AND THE GIVING OF A CONSPIRACY CHARGE WHEN
NO CONSPIRACY WAS CHARGED IN THE INFORMATION. 

/2/  ALL THREE PETITIONERS ALLEGE THAT AT LEAST TWO JURORS WERE
OBSERVED TO HAVE BEEN SLEEPING DURING THE TRIAL AND ASSIGN THIS
ALLEGATION AS FURTHER SUPPORT FOR THE ARGUMENT THAT THE LENGTH OF THE
TRIAL SESSION DEPRIVED THEM OF DUE PROCESS.  THE TRIAL COURT, AFTER A
HEARING ON THE MOTION FOR A NEW TRIAL, FOUND THAT NONE OF THE JURORS
HAD BEEN ASLEEP. 

GEORGE M. LEPPERT ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE G. WRAY GILL, SR., AND ROBERT S. LINK, JR. 

LOUISE KORNS ARGUED THE CAUSE FOR RESPONDENT.  WITH HER ON THE BRIEF
WERE JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, AND JIM
GARRISON. 
..END :























COMMISSIONER OF INTERNAL REVENUE V. SHAW-WALKER, 393 U.S. 478 


       COMMISSIONER OF INTERNAL REVENUE V. SHAW-WALKER CO.

        ON PETITIONER FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

        NO. 95.  DECIDED JANUARY 27, 1969. 


CERTIORARI GRANTEO; 390 F.2D 205, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
VACATED.  THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
CONSIDERATION IN LIGHT OF UNITED STATES V. DONRUSS CO., ANTE, P. 297. 

SOLICITOR GENERAL GRISWOLD FOR PETITIONER. 

RICHARD E. NOLAN AND JOHN P. CARROLL, JR., FOR RESPONDENT. 
..END :








INTERSTATE INVESTORS V. UNITED STATES, 393 U.S. 479 


       INTERSTATE INVESTORS, INC. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

NO. 755.  DECIDED JANUARY 27, 1969. 


287 F.SUPP.  374, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGEMENT IS AFFIRMED. 

FREDERICK W. P. LORENZEN AND WILLIAM R. BURT FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL ZIMMERMAN,
HOWARD E. SHAPIRO, ROBERT W. GINNANE, AND JEROME NELSON FOR THE UNITED
STATES ET AL., AND THOMAS P. DALY, JOHN W. CASTLES III, AND WARREN A.
GOFF FOR TRANSCONTINENTAL BUS SYSTEM, INC., APPELLEES. 
..END :







AFL-CIO V. UNITED STATES, 393 U.S. 480 


       PROVISION SALESMEN & DISTRIBUTORS UNION LOCAL 627,

           AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH

           AMERICA, AFL-CIO V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

NO. 790.  DECIDED JANUARY 27, 1969. 


282 F.SUPP.  819, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
UNITED MINE WORKERS OF AMERICA V. PENNINGTON, 381 U.S. 657; AMERICAN
FEDERATION OF MUSICIANS V. CARROLL, 391 U.S. 99; AND LOS ANGELES MEAT
DRIVERS UNION V. UNITED STATES, 371 U.S. 94. 

MR. JUSTICE STEWART IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

LOUIS WALDMAN AND SEYMOUR M. WALDMAN FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY GENERAL ZIMMERMAN
FOR THE UNITED STATES. 
..END :




















LOCUST CLUB V. CITY OF ROCHESTER, 393 U.S. 481 


       LOCUST CLUB OF ROCHESTER ET AL. V. CITY OF ROCHESTER ET AL.

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 799.  DECIDED JANUARY 27, 1969. 


22 N.Y.2D 802, 239 N.E.2D 646, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

RONALD J. BUTTARAZZI FOR APPELLANTS. 

STERLING L. WEAVER AND RUTH B. ROSENBERG FOR APPELLEES. 
..END :








STEWART V. CHICAGO HOUSING AUTHORITY, 393 U.S. 482 


       STEWART V. CHICAGO HOUSING AUTHORITY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

          ILLINOIS. 

        NO. 752, MISC.  DECIDED JANUARY 27, 1969. 


CERTIORARI GRANTED; 40 ILL.2D 23, 237 N.E.2D 463, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, THE MOTION OF THE
NATIONAL PROJECT ON URBAN HOUSING LAW ET AL., FOR LEAVE TO FILE A
BRIEF, AS AMICI CURIAE, AND THE PETITION FOR A WRIT OF CERTIORARI ARE
GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE
SUPREME COURT OF ILLINOIS FOR FURTHER CONSIDERATION IN LIGHT OF THORPE
V. HOUSING AUTHORITY OF THE CITY OF DURHAM, ANTE, P. 268. 

MARSHALL PATNER FOR PETITIONER. 

HENRY F. JANKOWICZ FOR RESPONDENT. 

PETER S. SMITH, JOSEPH A. MATERA, KENNETH F. PHILLIPS, AND ROBERT J.
SPANGENBERG FOR THE NATIONAL PROJECT ON URBAN HOUSING LAW ET AL., AS
AMICI CURIAE, IN SUPPORT OF THE PETITION. 
..END :






















GARDNER V. CALIFORNIA, 393 U.S. 367 


       GARDNER V. CALIFORNIA. 

        CERTIORARI TO THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF

           SAN LUIS OBISPO. 

        NO. 73.  ARGUED NOVEMBER 20, 1968.-- DECIDED JANUARY 20,

           1969. 


PETITION, A CALIFORNIA STATE PRISONER, FILED A REQUEST FOR HABEAS
CORPUS RELIEF, WHICH THE SUPERIOR COURT DENIED.  UNDER CALIFORNIA LAW
HE HAS NO RIGHT OF APPEAL BUT MAY FILE A NEW PETITION FOR HABEAS CORPUS
IN THE INTERMEDIATE COURT OF APPEAL OR THE SUPREME COURT.  PETITIONER
DESIRED TO FILE A NEW PETITION AND ASKED FOR A FREE TRANSCRIPT OF THE
EVIDENTIARY HEARING BEFORE THE SUPERIOR COURT, WHICH WAS DENIED.  HELD:
UNDER THIS SYSTEM OF REPEATED HEARINGS, WHERE TRANSCRIPTS ARE READILY
AVAILABLE TO JUDICIAL AND PROSECUTING OFFICIALS OF THE STATE, AND WHERE
NO SUGGESTION IS MADE THAT THERE IS ANY ADEQUATE SUBSTITUTE THEREFOR,
THEY MAY NOT BE FURNISHED TO THOSE WHO CAN AFFORD THEM AND DENIED TO
THOSE WHO ARE PAUPERS.  GRIFFIN V. ILLINOIS, 351 U.S. 12; LONG V.
DISTRICT COURT, 385 U.S. 192.  PP. 368-371. 

REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS A CALIFORNIA STATE PRISONER WHO FILED PRO SE VARIOUS
PAPERS WITH THE STATE SUPERIOR COURT ALLEGING STATE ACTION THAT
INTERFERED WITH HIS ACCESS TO THE COURTS FOR DETERMINATION OF HIS
CLAIMS.  THE SUPERIOR COURT, WHICH GRANTED A HEARING AND DESIGNATED THE
PUBLIC DEFENDER'S OFFICE TO REPRESENT PETITIONER AT THAT HEARING,
TREATED THE PAPERS AS REQUESTS FOR HABEAS CORPUS RELIEF.  AFTER
HEARING, IT MADE FINDINGS AND HELD THAT THE STATE HAD NOT IMPAIRED
PETITIONER'S RIGHTS OF ACCESS TO THE COURTS. 

UNDER CALIFORNIA LAW, WHILE THE STATE HAS AN APPEAL FROM AN ORDER
DISCHARGING A PRISONER IN A HABEAS CORPUS PROCEEDING, /1/  THE PRISONER
HAS NO APPEAL WHERE HIS PETITION IS DENIED.  SEE LOUSTALOT V. SUPERIOR
COURT, 30 CAL.2D 905, 913, 186 P.2D 673, 677-678.  BUT HE MAY FILE A
PETITION FOR HABEAS CORPUS EITHER IN THE INTERMEDIATE COURT OF APPEAL
OR IN THE SUPREME COURT.  /2/  AS PETITIONER IN THE INSTANT CASE
DESIRED TO PURSUE HIS REMEDY IN THE HIGHER COURTS, HE ASKED FOR A FREE
TRANSCRIPT OF THE EVIDENTIARY HEARING BEFORE THE SUPERIOR COURT.  HIS
MOTION WAS DENIED AND HE SOUGHT REVIEW OF THAT DENIAL BY CERTIORARI TO
THE DISTRICT COURT OF APPEAL.  IT WAS DENIED, AS WAS A TIMELY PETITION
FOR A HEARING IN THE SUPREME COURT.  WE GRANTED THE PETITION FOR A WRIT
OF CERTIORARI, 391 U.S. 902, TO CONSIDER WHETHER THE RULINGS BELOW
SQUARED WITH OUR DECISIONS IN GRIFFIN V. ILLINOIS, 351 U.S. 12, AND
LONG V. DISTRICT COURT, 385 U.S. 192. 

WE REVERSE THE JUDGMENT BELOW.  IF THIS INVOLVED AN APPEAL FROM THE
SUPERIOR COURT'S DENIAL OF HABEAS CORPUS, THE RULE OF THE GRIFFIN CASE
WOULD PREVENT CALIFORNIA FROM NOT ALLOWING PETITIONER, AN INDIGENT,
ACCESS TO THE RECORD WHICH MAKES ANY APPELLATE REVIEW MEANINGFUL, WHILE
ACCORDING FULL REVIEW TO ALL WHO HAVE THE MONEY TO PAY THEIR OWN WAY. 
THIS, HOWEVER, IS NOT AN APPEAL BUT THE DRAFTING OF A NEW ORIGINAL
PETITION FOR HABEAS CORPUS TO THE HIGHER COURT.  THAT NEW PETITION MUST
REFLECT WHAT HAD TRANSPIRED IN THE SUPERIOR COURT.  THE STATUTE
PROVIDES:  /3/ 

     "EVERY APPLICATION FOR A WRIT OF HABEAS CORPUS MUST BE

  VERIFIED, AND SHALL STATE WHETHER ANY PRIOR APPLICATION OR

  APPLICATIONS HAVE BEEN MADE FOR A WRIT IN REGARD TO THE SAME

  DETENTION OR RESTRAINT COMPLAINED OF IN THE APPLICATION, AND IF

  ANY SUCH PRIOR APPLICATION OR APPLICATIONS HAVE BEEN MADE THE

  LATER APPLICATION MUST CONTAIN A BRIEF STATEMENT OF ALL

  PROCEEDINGS HAD THEREIN, OR IN ANY OF THEM, TO AND INCLUDING THE

  FINAL ORDER OR ORDERS MADE THEREIN, OR IN ANY OF THEM, ON APPEAL

OR OTHERWISE." 

IT IS ARGUED THAT SINCE PETITIONER ATTENDED THE HEARING IN THE
SUPERIOR COURT, HE CAN DRAW ON HIS MEMORY IN PREPARING HIS APPLICATION
TO THE APPELLATE COURT.  AND THAT COURT, IF TROUBLED, CAN ALWAYS OBTAIN
THE TRANSCRIPT FROM THE LOWER COURT.  /4/  BUT WE DEAL WITH AN
ADVERSARY SYSTEM WHERE THE INITIATIVE RESTS WITH THE MOVING PARTY. 
WITHOUT A TRANSCRIPT THE PETITIONER, AS HE PREPARED HIS APPLICATION TO
THE APPELLATE COURT, WOULD HAVE ONLY HIS OWN LAY MEMORY /5/  OF WHAT
TRANSPIRED BEFORE THE SUPERIOR COURT.  FOR AN EFFECTIVE PRESENTATION OF
HIS CASE HE WOULD NEED THE FINDINGS OF THE SUPERIOR COURT AND THE
EVIDENCE THAT HAD BEEN WEIGHED AND REJECTED IN ORDER TO PRESENT HIS
CASE IN THE MOST FAVORABLE LIGHT.  CERTAINLY A LAWYER, ACCUSTOMED TO
PRECISE POINTS OF LAW AND NUANCES IN TESTIMONY, WOULD BE LOST WITHOUT
SUCH A TRANSCRIPT, SAVE PERHAPS FOR THE UNUSUAL AND EXCEPTIONAL CASE. 
THE LAWYER, HAVING LOST BELOW, WOULD BE CONSCIOUS OF THE SKEPTICISM
THAT PREVAILS ABOVE WHEN A SECOND HEARING IS SOUGHT AND WOULD AS SORELY
NEED THE TRANSCRIPT IN PETITIONING FOR A HEARING BEFORE THE APPELLATE
COURT AS HE WOULD IF THE MERITS OF AN APPEAL WERE AT STAKE.  A LAYMAN
HENCE NEEDS THE TRANSCRIPT EVEN MORE. 

IT IS SAID THAT THE APPELLATE COURT MAY SEND FOR THE TRANSCRIPT AND
DEDUCE FROM IT WHETHER THERE IS MERIT IN THIS NEW APPLICATION FOR
ANOTHER HEARING.  THAT PHILOSOPHY WOULD MAKE THE APPELLATE TRIBUNAL
PARENS PATRIAE OF THE INDIGENT HABEAS CORPUS LITIGANT.  IF THAT WOULD
SUFFICE FOR APPELLATE HEARINGS IN HABEAS CORPUS, WHY NOT IN REVIEW OF
CASES ON APPEAL?  SINCE OUR SYSTEM IS AN ADVERSARY ONE, A PETITIONER
CARRIES THE BURDEN OF CONVINCING THE APPELLATE COURT THAT THE HEARING
BEFORE THE LOWER COURT WAS EITHER INADEQUATE OR THAT THE LEGAL
CONCLUSIONS FROM THE FACTS DEDUCED WERE ERRONEOUS.  A TRANSCRIPT IS
THEREFORE THE OBVIOUS STARTING POINT FOR THOSE WHO TRY TO MAKE OUT A
CASE FOR A SECOND HEARING.  THE STATE CAN HARDLY CONTEND THAT A
TRANSCRIPT IS IRRELEVANT TO THE SECOND HEARING, WHERE IT SPECIFICALLY
PROVIDES ONE, UPON REQUEST, TO THE APPELLATE COURT AND THE STATE
ATTORNEY.  SO LONG AS THIS SYSTEM OF REPEATED HEARINGS EXISTS AND SO
LONG AS TRANSCRIPTS ARE AVAILABLE FOR PREPARATION OF APPELLATE HEARINGS
IN HABEAS CORPUS CASES, THEY MAY NOT BE FURNISHED THOSE WHO CAN AFFORD
THEM AND DENIED THOSE WHO ARE PAUPERS. 

THERE IS NO SUGGESTION THAT IN THE PRESENT CASE THERE IS ANY
ADEQUATE SUBSTITUTE /6/  FOR A FULL STENOGRAPHIC TRANSCRIPT.  WE
CONCLUDE THAT IN THE CONTEXT OF CALIFORNIA'S HABEAS CORPUS PROCEDURE
DENIAL OF A TRANSCRIPT TO AN INDIGENT MARKS THE SAME INVIDIOUS
DISCRIMINATION WHICH WE HELD IMPERMISSIBLE IN THE GRIFFIN AND LONG
CASES WHERE A STATE GRANTED APPEALS IN CRIMINAL CASES BUT IN PRACTICAL
EFFECT DENIED EFFECTIVE APPELLATE REVIEW TO INDIGENTS. 

       REVERSED. 

/1/  CALIF. PENAL CODE SEC. 1506. 

/2/  SEE CALIF. CONST., ART. 6, SEC. 10; CALIF. PENAL CODE SEC. 1475;
RULES 50 AND 190, CALIF. RULES OF COURT. 

/3/  CALIF. PENAL CODE SEC. 1475. 

/4/  RULE 60, CALIF. RULES OF COURT, PROVIDES: 

"WHEN A PETITION FOR A WRIT OF HABEAS CORPUS IS FILED IN A REVIEWING
COURT, SEEKING THE RELEASE FROM CUSTODY OF ONE WHO IS CONFINED UNDER
THE PROCESS OF ANY COURT OF THIS STATE, AND THE COURT, BEFORE PASSING
ON THE PETITION, DESIRES TO OBTAIN INFORMATION CONCERNING ANY MATTER OF
RECORD PERTAINING TO THE CASE OF SUCH PERSON, IT MAY ORDER THE
CUSTODIAN OF THE RECORD TO PRODUCE THE SAME OR A CERTIFIED COPY THEREOF
TO BE FILED WITH THE CLERK OF THE REVIEWING COURT." 

SEE ALSO S. WEIGEL & L. BURKE, STATE-FEDERAL POST CONVICTION
PROBLEMS, 1 FEDERAL JUDICIAL CENTER REPORT 101 (1968). 

/5/  WHILE PETITIONER HAD ASSIGNED COUNSEL AT THE HEARING BEFORE THE
SUPERIOR COURT, THAT ASSIGNMENT DID NOT COVER THE PREPARATION OF PAPERS
IN FURTHER PURSUIT OF RELIEF. 

/6/  CF. GRIFFIN V. ILLINOIS, 351 U.S. 12, 20. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT OF REVERSAL AND ALL OF THE
COURT'S OPINION EXCEPT THE STATEMENT AT 370 THAT A FULL STENOGRAPHIC
TRANSCRIPT IS REQUIRED HERE.  HE IS OF THE OPINION THAT, AS STATED IN
GRIFFIN V. ILLINOIS, 351 U.S. 12, THERE MAY BE NO NECESSITY FOR A FULL
STENOGRAPHIC TRANSCRIPT IN STATE HABEAS CORPUS CASES, AND FOR THAT
REASON HE WOULD NOT AUTOMATICALLY REQUIRE THE STATE TO SUPPLY ONE IN
CASES LIKE THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THE COURT HOLDS TODAY THAT PETITIONER, WHOSE APPLICATION FOR A WRIT
OF HABEAS CORPUS WAS DENIED IN THE CALIFORNIA SUPERIOR COURT, IS
AUTOMATICALLY ENTITLED TO A FREE TRANSCRIPT OF THAT PROCEEDING, TO AID
HIM IN "PREPARING" AND "PRESENTING" AN ENTIRELY NEW APPLICATION IN THE
STATE SUPREME COURT.  IN SO HOLDING, THE COURT NOT ONLY MISCONCEIVES
THE NATURE OF CALIFORNIA'S POST-CONVICTION PROCEDURE, BUT IT IMPOSES ON
THE STATE A FINANCIAL BURDEN WHICH IS NOT OFFSET BY ANY APPRECIABLE
BENEFIT TO THE PETITIONER. 

UNDER SEC. 1475 OF THE CALIFORNIA PENAL CODE, AN APPLICANT DENIED
HABEAS CORPUS RELIEF IN A LOWER STATE COURT MAY FILE AN APPLICATION DE
NOVO IN A HIGHER COURT.  AS THE SUPERIOR COURT BELOW NOTED, THE
PETITION IS SELF-CONTAINED AND INDEPENDENT OF THE PRIOR PROCEEDING. 
(APPENDIX 43.)  THE APPLICANT IS NEITHER REQUIRED NOR REQUESTED TO
ASSIGN ERRORS, OR REFER TO TESTIMONY, IN THE PRIOR PROCEEDING.  HE MUST
ONLY INFORM THE COURT THAT SUCH A PROCEEDING TOOK PLACE AND SUPPLY
COLLATERAL DATA, SUCH AS THE COURT IN WHICH IT WAS HELD, THE
DISPOSITION, ETC.  /1/  THE INITIAL QUESTION FOR THE SECOND COURT-- AS
IT IS FOR ANY COURT EXAMINING AN APPLICATION FOR POST-CONVICTION RELIEF
- IS WHETHER, TAKING THE FACTUAL ALLEGATIONS AS PROVED, THE APPLICATION
STATES A CLAIM UPON WHICH RELIEF CAN BE GRANTED.  IF THE COURT
DETERMINES THAT A CLAIM IS STATED, IT WILL ORDER A REFEREE TO CONDUCT
AN INDEPENDENT EVIDENTIARY HEARING.  /2/ 

CERTAINLY THERE CAN BE NO CONSTITUTIONAL REQUIREMENT THAT A COURT
HEAR, OR REVIEW THE TRANSCRIPT OF, TESTIMONY IN SUPPORT OF FACTUAL
ALLEGATIONS WHICH, EVEN IF PROVED, WOULD NOT CONSTITUTE GROUNDS FOR
RELIEF.  /3/  CF. DRAPER V. WASHINGTON, 372 U.S. 487, 495-496 (1963). 
NOR WILL A TRANSCRIPT OF A PRIOR HABEAS CORPUS HEARING MATERIALLY AID
THE APPLICANT IN FRAMING THE ALLEGATIONS IN A SUBSEQUENT PETITION.  TO
BE SURE, A TRANSCRIPT OF THE PRIOR HEARING MAY BE AN INCIDENTAL
CONVENIENCE-- SO, TOO, WOULD A DAILY TRANSCRIPT AT A CRIMINAL TRIAL--
BUT THE FOURTEENTH AMENDMENT DOES NOT REQUIRE A STATE TO FURNISH AN
INDIGENT WITH EVERY LUXURY THAT A WEALTHY LITIGANT MIGHT CONCEIVABLY
CHOOSE TO PURCHASE.  CF. ID., AT 496. 

NEITHER LONG V. DISTRICT COURT, 385 U.S. 192 (1966), NOR ANY OTHER
DECISION OF THIS COURT, SUGGESTS THAT CALIFORNIA'S PROCEDURE IS
CONSTITUTIONALLY DEFECTIVE.  THE STATE IN LONG SIMPLY MADE "NO
PROVISION (ON AN APPEAL FROM THE DENIAL OF HABEAS CORPUS) . . . FOR THE
FURNISHING OF A TRANSCRIPT WITHOUT THE PAYMENT OF FEE . . . ," OR FOR
AN INDEPENDENT EVIDENTIARY HEARING AT THE APPELLATE LEVEL.  FOR ALL
PRACTICAL PURPOSES, AN INDIGENT COULD NOT EFFECTIVELY OBTAIN REVIEW. 
/4/  IN CONTRADISTINCTION, THE CALIFORNIA INDIGENT WHO ALLEGES FACTS
WHICH ENTITLE HIM TO RELIEF IS AFFORDED THE SAME OPPORTUNITY AS ANY
OTHER APPLICANT TO PROVE THOSE FACTS. 

IN PURPOSE AND EFFECT, CALIFORNIA'S PROCEDURE IS NOT DISSIMILAR TO
THE FEDERAL RULE WHEREBY AN INDIGENT APPEALING THE DENIAL OF AN
APPLICATION FOR COLLATERAL RELIEF IS PROVIDED A TRANSCRIPT ONLY IF "THE
TRIAL JUDGE OR A CIRCUIT JUDGE CERTIFIES THAT THE . . . APPEAL IS NOT
FRIVOLOUS AND THAT THE TRANSCRIPT IS NEEDED TO DECIDE THE ISSUE
PRESENTED BY THE . . . APPEAL."  28 U.S.C. 753(F) (1964 ED., SUPP.
III).  BOTH THE STATE AND FEDERAL PROCEDURES ARE RESPONSIVE TO THE
IMMENSE VOLUME OF FRIVOLOUS HABEAS CORPUS APPLICATIONS AND APPEALS
FILED IN THE RESPECTIVE SYSTEMS.  BOTH PROCEDURES ARE SENSIBLE AND
PRACTICAL.  BOTH ARE EQUITABLE AND FAIR. 

I WOULD AFFIRM. 

/1/  SEE FORM FOR PETITION FOR RELEASE FROM OR MODIFICATION OF
CUSTODY, AS AMENDED EFFECTIVE JANUARY 1, 1966, APPROVED BY THE JUDICIAL
COUNCIL OF CALIFORNIA FOR USE UNDER RULES 56.5 AND 201(F) OF THE
CALIFORNIA RULES OF COURT. 

/2/  UNDER RULE 60 OF THE CALIFORNIA RULES OF COURT, ANTE, AT 369,
N. 4, THE COURT MAY ALSO ORDER THE TRANSCRIPT OF THE EARLIER
PROCEEDING. 

/3/  IN THIS CONNECTION, IT IS WORTH NOTING THAT PETITIONER'S
AFFIDAVIT IN SUPPORT OF HIS MOTION FOR A FREE TRANSCRIPT STATED THAT
THE SUPERIOR COURT RULED AGAINST HIM, "NOT ON THE FACTS OF HIS CLAIMS,
BUT AS TO THE INTERPRETATION OF RIGHTS SECURED BY THE FOURTEENTH
AMENDMENT."  (APPENDIX 41-42.)  THE STATE SUPREME COURT APPARENTLY
REACHED THE SAME CONCLUSION AS THE LOWER COURT, AND DENIED PETITIONER'S
SUBSEQUENT APPLICATION FOR A WRIT OF HABEAS CORPUS ON THE MERITS.  I
EXPRESS NO VIEW ON THE MERITS OF PETITIONER'S CLAIMS, WHICH ARE THE
SUBJECT OF PETITIONS FOR CERTIORARI PENDING THIS TERM IN GARDNER V.
CALIFORNIA, NO. 7, MISC., AND GARDNER V. CALIFORNIA, NO. 10, MISC. 

/4/  SIMILARLY, SMITH V. BENNETT, 365 U.S. 708 (1961), HELD IT
IMPERMISSIBLE FOR A STATE TO CONDITION DOCKETING OF A HABEAS CORPUS
APPLICATION OR ALLOWANCE OF AN APPEAL ON THE PAYMENT OF A FILING FEE;
AND LANE V. BROWN, 372 U.S. 477 (1963), HELD INVALID A PROCEDURE UNDER
WHICH AN APPEAL FROM THE DENIAL OF CORAM NOBIS COULD BE PERFECTED ONLY
BY FILING A TRANSCRIPT IN THE APPELLATE COURT, WHEN IT WAS WITHIN THE
PUBLIC DEFENDER'S EXCLUSIVE DISCRETION WHETHER OR NOT TO REQUEST THAT A
FREE TRANSCRIPT BE PREPARED.  THE DISTINCTIONS BETWEEN THESE CASES AND
THE INSTANT ONE ARE TOO OBVIOUS TO MERIT DISCUSSION. 

CHARLES E. RICKERSHAUSER, JR., BY APPOINTMENT OF THE COURT, 391 U.S.
911, ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

JACK K. WEBER, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL. 
..END :











SMITH V. HOOEY, 393 U.S. 374 


       SMITH V. HOOEY, JUDGE. 

        CERTIORARI TO THE SUPREME COURT OF TEXAS. 

        NO. 198.  ARGUED DECEMBER 11, 1968.-- DECIDED JANUARY 20,

           1969. 


PETITIONER WAS INDICTED IN 1960 ON A TEXAS CRIMINAL CHARGE.  HE WAS
THEN, AND STILL IS, A PRISONER IN A FEDERAL PENITENTIARY.  FOR THE NEXT
SIX YEARS HE VAINLY SOUGHT TO GAIN A SPEEDY TRIAL IN RESPONDENT'S
COURT.  IN 1967 HE FILED IN THAT COURT A MOTION, WHICH HAS NOT BEEN
ACTED ON, TO DISMISS THE CHARGE FOR WANT OF PROSECUTION.  PETITIONER
THEN FILED A MANDAMUS PETITION REQUESTED AN ORDER TO SHOW CAUSE WHY THE
CHARGE SHOULD NOT BE DISMISSED.  THE TEXAS SUPREME COURT DENIED THE
PETITION ON THE BASIS OF A PREVIOUS DECISION ACKNOWLEDGING THAT A STATE
PRISONER WOULD HAVE BEEN ENTITLED TO BE BROUGHT TO TRIAL BUT HOLDING
THAT A DIFFERENT RULE APPLIES "WHEN TWO SEPARATE SOVEREIGNTIES ARE
INVOLVED," SINCE "(THE TRUE TEST SHOULD BE THE POWER AND AUTHORITY OF
THE STATE UNAIDED BY ANY WAIVER, PERMISSION OR ACT OF GRACE OF ANY
OTHER AUTHORITY."  HELD:  UNDER THE SIXTH AMENDMENT AS MADE APPLICABLE
TO THE STATES BY THE FOURTEENTH THE STATE, ON PETITIONER'S DEMAND, WAS
REQUIRED TO MAKE A DILIGENT, GOOD-FAITH EFFORT TO BRING PETITIONER TO
TRIAL IN RESPONDENT'S COURT.  PP. 377-383. 

VACATED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN KLOPFER V. NORTH CAROLINA, 386 U.S. 213, THIS COURT HELD THAT, BY
VIRTUE OF THE FOURTEENTH AMENDMENT, THE SIXTH AMENDMENT RIGHT TO A
SPEEDY TRIAL /1/  IS ENFORCEABLE AGAINST THE STATES AS "ONE OF THE MOST
BASIC RIGHTS PRESERVED BY OUR CONSTITUTION."  ID., AT 226.  THE CASE
BEFORE US INVOLVES THE NATURE AND EXTENT OF THE OBLIGATION IMPOSED UPON
A STATE BY THAT CONSTITUTIONAL GUARANTEE, WHEN THE PERSON UNDER THE
STATE CRIMINAL CHARGE IS SERVING A PRISON SENTENCE IMPOSED BY ANOTHER
JURISDICTION. 

IN 1960 THE PETITIONER WAS INDICTED IN HARRIS COUNTY, TEXAS, UPON A
CHARGE OF THEFT.  HE WAS THEN, AND STILL IS, A PRISONER IN THE FEDERAL
PENITENTIARY AT LEAVENWORTH, KANSAS.  /2/  SHORTLY AFTER THE STATE
CHARGE WAS FILED AGAINST HIM, THE PETITIONER MAILED A LETTER TO THE
TEXAS TRIAL COURT REQUESTED A SPEEDY TRIAL.  IN REPLY, HE WAS NOTIFIED
THAT "HE WOULD BE AFFORDED A TRIAL WITHIN TWO WEEKS OF ANY DATE (HE)
MIGHT SPECIFY AT WHICH HE COULD BE PRESENT."  /3/  THEREAFTER, FOR THE
NEXT SIX YEARS, THE PETITIONER, "BY VARIOUS LETTERS, AND MORE FORMAL SO
CALLED 'MOTIONS,'" CONTINUED PERIODICALLY TO ASK THAT HE BE BROUGHT TO
TRIAL.  BEYOND THE RESPONSE ALREADY ALLUDED TO, THE STATE TOOK NO STEPS
TO OBTAIN THE PETITIONER'S APPEARANCE IN THE HARRIS COUNTY TRIAL
COURT.  FINALLY, IN 1967, THE PETITIONER FILED IN THAT COURT A VERIFIED
MOTION TO DISMISS THE CHARGE AGAINST HIM FOR WANT OF PROSECUTION.  NO
ACTION WAS TAKEN ON THE MOTION. 

THE PETITIONER THEN BROUGHT A MANDAMUS PROCEEDING IN THE SUPREME
COURT OF TEXAS, ASKING FOR AN ORDER TO SHOW CAUSE WHY THE PENDING
CHARGE SHOULD NOT BE DISMISSED.  MANDAMUS WAS REFUSED IN AN INFORMAL
AND UNREPORTED ORDER OF THE TEXAS SUPREME COURT.  THE PETITIONER THEN
SOUGHT CERTIORARI IN THIS COURT.  AFTER INVITING AND RECEIVING A
MEMORANDUM FROM THE SOLICITOR GENERAL OF THE UNITED STATES, 390 U.S.
937, WE GRANTED CERTIORARI TO CONSIDER THE CONSTITUTIONAL QUESTIONS
THIS CASE PRESENTS.  392 U.S. 925. 

IN REFUSING TO ISSUE A WRIT OF MANDAMUS, THE SUPREME COURT OF TEXAS
RELIED UPON AND REAFFIRMED ITS DECISION OF A YEAR EARLIER IN COOPER V.
STATE, 400 S.W.2D 890.  /4/  IN THAT CASE, AS IN THE PRESENT ONE, A
STATE CRIMINAL CHARGE WAS PENDING AGAINST A MAN WHO WAS AN INMATE OF A
FEDERAL PRISON.  HE FILED A PETITION FOR A WRIT OF HABEAS CORPUS AD
PROSEQUENDUM IN THE TEXAS TRIAL COURT, PRAYING THAT HE BE BROUGHT
BEFORE THE COURT FOR TRIAL, OR THAT THE CHARGE AGAINST HIM BE
DISMISSED.  UPON DENIAL OF THAT MOTION, HE APPLIED TO THE SUPREME COURT
OF TEXAS FOR A WRIT OF MANDAMUS.  IN DENYING THE APPLICATION, THE COURT
ACKNOWLEDGED THAT AN INMATE OF A TEXAS PRISON WOULD HAVE BEEN CLEARLY
ENTITLED TO THE RELIEF SOUGHT AS A MATTER OF CONSTITUTIONAL RIGHT, /5/
BUT HELD THAT "A DIFFERENT RULE IS APPLICABLE WHEN TWO SEPARATE
SOVEREIGNTIES ARE INVOLVED."  400 S.W.2D AT 891.  THE COURT VIEWED THE
DIFFERENCE AS "ONE OF POWER AND AUTHORITY."  ID., AT 892.  WHILE
ACKNOWLEDGING THAT IF THE STATE AUTHORITIES WERE "ORDERED TO PROCEED
WITH THE PROSECUTION . . . AND COMPLY WITH CERTAIN CONDITIONS SPECIFIED
BY THE FEDERAL PRISON AUTHORITIES, THE RELATOR WOULD BE PRODUCED FOR
TRIAL IN THE STATE COURT," ID., AT 891, IT NONETHELESS DENIED RELIEF,
BECAUSE IT THOUGHT "(THE TRUE TEST SHOULD BE THE POWER AND AUTHORITY OF
THE STATE UNAIDED BY ANY WAIVER, PERMISSION OR ACT OF GRACE OF ANY
OTHER AUTHORITY."  ID., AT 892.  FOUR JUSTICES DISSENTED, EXPRESSING
THEIR BELIEF THAT "WHERE THE STATE HAS THE POWER TO AFFORD THE ACCUSED
A SPEEDY TRIAL IT IS UNDER A DUTY TO DO SO."  ID., AT 893. 

THERE CAN BE NO DOUBT THAT IF THE PETITIONER IN THE PRESENT CASE HAD
BEEN AT LARGE FOR A SIX-YEAR PERIOD FOLLOWING HIS INDICTMENT, AND HAD
REPEATEDLY DEMANDED THAT HE BE BROUGHT TO TRIAL, THE STATE WOULD HAVE
BEEN UNDER A CONSTITUTIONAL DUTY TO TRY HIM.  KLOPFER V. NORTH
CAROLINA, SUPRA, AT 219.  AND TEXAS CONCEDES THAT IF DURING THAT PERIOD
HE HAD BEEN CONFINED IN A TEXAS PRISON FOR SOME OTHER STATE OFFENSE,
ITS OBLIGATION WOULD HAVE BEEN NO LESS.  BUT THE TEXAS SUPREME COURT
HAS HELD THAT BECAUSE PETITIONER IS, IN FACT, CONFINED IN A FEDERAL
PRISON, THE STATE IS TOTALLY ABSOLVED FROM ANY DUTY AT ALL UNDER THE
CONSTITUTIONAL GUARANTEE.  WE CANNOT AGREE. 

THE HISTORIC ORIGINS OF THE SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL
WERE TRACED IN SOME DETAIL BY THE CHIEF JUSTICE IN HIS OPINION FOR THE
COURT IN KLOPFER, SUPRA, AT 223-226, AND WE NEED NOT REVIEW THAT
HISTORY AGAIN HERE.  SUFFICE IT TO REMEMBER THAT THIS CONSTITUTIONAL
GUARANTEE HAS UNIVERSALLY /6/  BEEN THOUGHT ESSENTIAL TO PROTECT AT
LEAST THREE BASIC DEMANDS OF CRIMINAL JUSTICE IN THE ANGLE-AMERICAN
LEGAL SYSTEM:  "(1) TO PREVENT UNDUE AND OPPRESSIVE INCARCERATION PRIOR
TO TRIAL, (2) TO MINIMIZE ANXIETY AND CONCERN ACCOMPANYING PUBLIC
ACCUSATION AND (3) TO LIMIT THE POSSIBILITIES THAT LONG DELAY WILL
IMPAIR THE ABILITY OF AN ACCUSED TO DEFEND HIMSELF."  UNITED STATES V.
EWELL, 383 U.S. 116, 120.  THESE DEMANDS ARE BOTH AGGRAVATED AND
COMPOUNDED IN THE CASE OF AN ACCUSED WHO IS IMPRISONED BY ANOTHER
JURISDICTION. 

AT FIRST BLUSH IT MIGHT APPEAR THAT A MAN ALREADY IN PRISON UNDER A
LAWFUL SENTENCE IS HARDLY IN A POSITION TO SUFFER FROM "UNDUE AND
OPPRESSIVE INCARCERATION PRIOR TO TRIAL."  BUT THE FACT IS THAT DELAY
IN BRINGING SUCH A PERSON TO TRIAL ON A PENDING CHARGE MAY ULTIMATELY
RESULT IN AS MUCH OPPRESSION AS IS SUFFERED BY ONE WHO IS JAILED
WITHOUT BAIL UPON AN UNTRIED CHARGE.  FIRST, THE POSSIBILITY THAT THE
DEFENDANT ALREADY IN PRISON MIGHT RECEIVE A SENTENCE AT LEAST PARTIALLY
CONCURRENT WITH THE ONE HE IS SERVING MAY BE FOREVER LOST IF TRIAL OF
THE PENDING CHARGE IS POSTPONED.  /7/  SECONDLY, UNDER PROCEDURES NOW
WIDELY PRACTICED, THE DURATION OF HIS PRESENT IMPRISONMENT MAY BE
INCREASED, AND THE CONDITIONS UNDER WHICH HE MUST SERVE HIS SENTENCE
GREATLY WORSENED, BY THE PENDENCY OF ANOTHER CRIMINAL CHARGE
OUTSTANDING AGAINST HIM.  /8/ 

AND WHILE IT MIGHT BE ARGUED THAT A PERSON ALREADY IN PRISON WOULD
BE LESS LIKELY THAN OTHERS TO BE AFFECTED BY "ANXIETY AND CONCERN
ACCOMPANYING PUBLIC ACCUSATION," THERE IS REASON TO BELIEVE THAT AN
OUTSTANDING UNTRIED CHARGE (OF WHICH EVEN A CONVICT MAY, OF COURSE, BE
INNOCENT) CAN HAVE FULLY AS DEPRESSIVE AN EFFECT UPON A PRISONER AS
UPON A PERSON WHO IS AT LARGE.  CF. KLOPFER V. NORTH CAROLINA, SUPRA,
AT 221-222.  IN THE OPINION OF THE FORMER DIRECTOR OF THE FEDERAL
BUREAU OF PRISONS, 

"(IT IS IN THEIR EFFECT UPON THE PRISONER AND OUR ATTEMPTS TO
REHABILITATE HIM THAT DETAINERS ARE MOST CORROSIVE.  THE STRAIN OF
HAVING TO SERVE A SENTENCE WITH THE UNCERTAIN PROSPECT OF BEING TAKEN
INTO THE CUSTODY OF ANOTHER STATE AT THE CONCLUSION INTERFERES WITH THE
PRISONER'S ABILITY TO TAKE MAXIMUM ADVANTAGE OF HIS INSTITUTIONAL
OPPORTUNITIES.  HIS ANXIETY AND DEPRESSION MAY LEAVE HIM WITH LITTLE
INCLINATION TOWARD SELF-IMPROVEMENT."  /9/ 

FINALLY, IT IS SELF-EVIDENT THAT "THE POSSIBILITIES THAT LONG DELAY
WILL IMPAIR THE ABILITY OF AN ACCUSED TO DEFEND HIMSELF" ARE MARKEDLY
INCREASED WHEN THE ACCUSED IS INCARCERATED IN ANOTHER JURISDICTION. 
CONFINED IN A PRISON, PERHAPS FAR FROM THE PLACE WHERE THE OFFENSE
COVERED BY THE OUTSTANDING CHARGE ALLEGEDLY TOOK PLACE, HIS ABILITY TO
CONFER WITH POTENTIAL DEFENSE WITNESSES, OR EVEN TO KEEP TRACK OF THEIR
WHEREABOUTS, IS OBVIOUSLY IMPAIRED.  AND, WHILE "EVIDENCE AND WITNESSES
DISAPPEAR, MEMORIES FADE, AND EVENTS LOSE THEIR PERSPECTIVE,"  /10/  A
MAN ISOLATED IN PRISON IS POWERLESS TO EXERT HIS OWN INVESTIGATIVE
EFFORTS TO MITIGATE THOSE EROSIVE EFFECTS OF THE PASSAGE OF TIME. 

DESPITE ALL THESE CONSIDERATIONS, THE TEXAS SUPREME COURT HAS SAID
THAT THE STATE IS UNDER NO DUTY EVEN TO ATTEMPT TO BRING A MAN IN THE
PETITIONER'S POSITION TO TRIAL, BECAUSE "(THE QUESTION IS ONE OF POWER
AND AUTHORITY AND IS IN NO WAY DEPENDENT UPON HOW OR IN WHAT MANNER THE
FEDERAL SOVEREIGNTY MAY PROCEED IN A DISCRETIONARY WAY UNDER THE
DOCTRINE OF COMITY."  /11/  YET TEXAS CONCEDES THAT IF IT DID MAKE AN
EFFORT TO SECURE A FEDERAL PRISONER'S APPEARANCE, HE WOULD, IN FACT,
"BE PRODUCED FOR TRIAL IN THE STATE COURT."  /12/  THIS IS FULLY
CONFIRMED BY THE MEMORANDUM THAT THE SOLICITOR GENERAL HAS FILED IN THE
PRESENT CASE: 

"(THE BUREAU OF PRISONS WOULD DOUBTLESS HAVE MADE THE PRISONER
AVAILABLE IF A WRIT OF HABEAS CORPUS AD PROSEQUENDUM HAD BEEN ISSUED BY
THE STATE COURT.  IT DOES NOT APPEAR, HOWEVER, THAT THE STATE AT ANY
POINT SOUGHT TO INITIATE THAT PROCEDURE IN THIS CASE."  /13/ 

IN VIEW OF THESE REALITIES, WE THINK THE TEXAS COURT WAS MISTAKEN IN
ALLOWING DOCTRINAIRE CONCEPTS OF "POWER" AND "AUTHORITY" TO SUBMERGE
THE PRACTICAL DEMANDS OF THE CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL. 
INDEED, THE RATIONALE UPON WHICH THE TEXAS SUPREME COURT BASED ITS
DENIAL OF RELIEF IN THIS CASE WAS WHOLLY UNDERCUT LAST TERM IN BARBER
V. PAGE, 390 U.S. 719.  IN THAT CASE WE DEALT WITH ANOTHER SIXTH
AMENDMENT GUARANTEE-- THE RIGHT OF CONFRONTATION.  IN HOLDING THAT
OKLAHOMA COULD NOT EXCUSE ITS FAILURE TO PRODUCE A PROSECUTION WITNESS
SIMPLY BECAUSE HE WAS IN A FEDERAL PRISON OUTSIDE THE STATE, WE SAID: 

     "WE START WITH THE FACT THAT THE STATE MADE ABSOLUTELY NO

  EFFORT TO OBTAIN THE PRESENCE OF WOODS AT TRIAL OTHER THAN TO

  ASCERTAIN THAT HE WAS IN A FEDERAL PRISON OUTSIDE OKLAHOMA.  IT

  MUST BE ACKNOWLEDGED THAT VARIOUS COURTS AND COMMENTATORS HAVE

  HERETOFORE ASSUMED THAT THE MERE ABSENCE OF A WITNESS FROM THE

  JURISDICTION WAS SUFFICIENT GROUND FOR DISPENSING WITH

  CONFRONTATION ON THE THEORY THAT 'IT IS IMPOSSIBLE TO COMPEL HIS

  ATTENDANCE, BECAUSE THE PROCESS OF THE TRIAL COURT IS OF NO FORCE

  WITHOUT THE JURISDICTION, AND THE PARTY DESIRING HIS TESTIMONY IS

  THEREFORE HELPLESS.'  5 WIGMORE, EVIDENCE 1404 (3D ED. 1940). 

      "WHATEVER MAY HAVE BEEN THE ACCURACY OF THAT THEORY AT ONE

  TIME, IT IS CLEAR THAT AT THE PRESENT TIME INCREASED COOPERATION

  BETWEEN THE STATES THEMSELVES AND BETWEEN THE STATES AND THE

  FEDERAL GOVERNMENT HAS LARGELY DEPRIVED IT OF ANY CONTINUING

  VALIDITY IN THE CRIMINAL LAW.  . . . 

     " . . . THE COURT OF APPEALS MAJORITY APPEARS TO HAVE REASONED

  THAT BECAUSE THE STATE WOULD HAVE HAD TO REQUEST AN EXERCISE OF

  DISCRETION ON THE PART OF FEDERAL AUTHORITIES, IT WAS UNDER NO

  OBLIGATION TO MAKE ANY SUCH REQUEST.  YET AS JUDGE ALDRICH,

  SITTING BY DESIGNATION, POINTED OUT IN DISSENT BELOW, 'THE

  POSSIBILITY OF A REFUSAL IS NOT THE EQUIVALENT OF ASKING AND

  RECEIVING A REBUFF.'  381 F.2D, AT 481.  IN SHORT, A WITNESS IS

  NOT 'UNAVAILABLE' FOR PURPOSES OF THE FOREGOING EXCEPTION TO THE

 CONFRONTATION REQUIREMENT UNLESS THE PROSECUTORIAL AUTHORITIES

  HAVE MADE A GOOD-FAITH EFFORT TO OBTAIN HIS PRESENCE AT TRIAL. 

  THE STATE MADE NO SUCH EFFORT HERE, AND, SO FAR AS THIS RECORD

  REVEALS, THE SOLE REASON WHY WOODS WAS NOT PRESENT TO TESTIFY IN

  PERSON WAS BECAUSE THE STATE DID NOT ATTEMPT TO SEEK HIS

  PRESENCE.  THE RIGHT OF CONFRONTATION MAY NOT BE DISPENSED WITH

  SO LIGHTLY."  390 U.S.,AT 723-725 (FOOTNOTES OMITTED). 

BY A PARITY OF REASONING WE HOLD TODAY THAT THE SIXTH AMENDMENT
RIGHT TO A SPEEDY TRIAL MAY NOT BE DISPENSED WITH SO LIGHTLY EITHER. 
UPON THE PETITIONER'S DEMAND, TEXAS HAD A CONSTITUTIONAL DUTY TO MAKE A
DILIGENT, GOOD-FAITH EFFORT TO BRING HIM BEFORE THE HARRIS COUNTY COURT
FOR TRIAL. 

THE ORDER OF THE SUPREME COURT OF TEXAS IS SET ASIDE, AND THE CASE
IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

 IT IS SO ORDERED. 

/1/  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE
RIGHT TO A SPEEDY AND PUBLIC TRIAL.  . . . "  U.S. CONST., AMDT. VI. 

/2/  ON MAY 5, 1960, THE SHERIFF OF HARRIS COUNTY NOTIFIED THE
WARDEN AT LEAVENWORTH THAT A WARRANT FOR THE PETITIONER'S ARREST WAS
OUTSTANDING, AND ASKED FOR NOTICE OF #THE MINIMUM RELEASE DATE."  THAT
DATE IS APPARENTLY JANUARY 6, 1970. 

/3/  MOST OF THE FACTS HAVE BEEN STIPULATED. 

/4/  SEE ALSO LAWRENCE V. STATE, 412 S.W.2D 40. 

/5/  FOR THIS PROPOSITION THE COURT CITED ITS 40-YEAR-OLD DECISION
IN MOREAU V. BOND, 114 TEX. 468, 271 S.W. 379.  THE COURT IN THAT CASE
SAID: 

"THOSE RIGHTS, FUNDAMENTAL IN THEIR NATURE, WHICH HAVE BEEN
GUARANTEED BY THE BILL OF RIGHTS CANNOT BE THE SUBJECT OF JUDICIAL
DISCRETION.  JUDICIAL DISCRETION IS A LEGAL DISCRETION AND NOT A
PERSONAL DISCRETION; A LEGAL DISCRETION TO BE EXERCISED IN CONFORMITY
TO THE CONSTITUTION AND THE LAWS OF THE LAND.  IT IS ONLY IN THE
ABSENCE OF POSITIVE LAW OR FIXED RULE THAT THE JUDGE MAY DECIDE BY HIS
VIEW OF EXPEDIENCY OR OF THE DEMANDS OF JUSTICE OR EQUITY.  THE BILL OF
RIGHTS, SECTION 10 OF ARTICLE I OF THE CONSTITUTION, PROVIDES:  'IN ALL
CRIMINAL PROSECUTIONS THE ACCUSED SHALL HAVE A SPEEDY PUBLIC TRIAL BY
AN IMPARTIAL JURY'.  . . . 

"NONE OF THE REASONS SUGGESTED, EITHER IN THE ORDER OVERRULING
RELATOR'S MOTION FOR TRIAL OR IN THE ANSWER TO THE PETITION FOR
MANDAMUS HERE, ARE GOOD OR HAVE ANY FOUNDATION IN LAW OR JUSTICE. 
CERTAINLY, UNDER OUR CONSTITUTION AND OUR LAWS, THE RELATOR IS ENTITLED
TO A TRIAL ON THE CHARGE AGAINST HIM."  114 TEX.,AT 470, 271 S.W.,AT
379-380. 

THE BASIS OF THE DECISION THUS APPEARS TO HAVE BEEN THE SPEEDY-TRIAL
GUARANTEE CONTAINED IN THE STATE CONSTITUTION. 

/6/  "TODAY, EACH OF THE 50 STATES GUARANTEES THE RIGHT TO A SPEEDY
TRIAL TO ITS CITIZENS."  KLOPFER V. NORTH CAROLINA, SUPRA, AT 226; SEE
NOTE, THE RIGHT TO A SPEEDY CRIMINAL TRIAL, 57 COL.L.REV.  846, 847
(1957); CF. NOTE, THE LAGGING RIGHT TO A SPEEDY TRIAL, 51 VA.L.REV. 
1587 (1965). 

/7/  SEE SCHINDLER, INTERJURISDICTIONAL CONFLICT AND THE RIGHT TO A
SPEEDY TRIAL, 35 U.CIN.L.REV.  179, 182-183 (1966). 

/8/  SEE, E.G., EVANS V. MITCHELL, 200 KAN. 290, 436 P.2D 408
(HOLDING THAT KANSAS HAD NO DUTY TO BRING TO TRIAL A PERSON SERVING A
15-YEAR SENTENCE IN A WASHINGTON PRISON, ALTHOUGH THE PENDENCY OF THE
KANSAS CHARGE PREVENTED ANY POSSIBILITY OF CLEMENCY OR CONDITIONAL
PARDON IN WASHINGTON AND MADE IT IMPOSSIBLE FOR THE PRISONER TO TAKE
PART IN CERTAIN REHABILITATION PROGRAMS OR TO BECOME A TRUSTY IN THE
WASHINGTON PRISON).  THE EXISTENCE OF AN OUTSTANDING CRIMINAL CHARGE NO
LONGER AUTOMATICALLY MAKES A PRISONER INELIGIBLE FOR PAROLE IN THE
FEDERAL PRISON SYSTEM.  28 CFR 2.9 (1968); SEE RULES OF THE UNITED
STATES BOARD OF PAROLE 17-18 (1965).  BUT AS LATE AS 1959 THE DIRECTOR
OF THE FEDERAL BUREAU OF PRISONS WROTE:  "TODAY THE PRISONERS WITH
DETAINERS ARE EVALUATED INDIVIDUALLY BUT THERE REMAINS A TENDENCY TO
CONSIDER THEM ESCAPE RISKS AND TO ASSIGN THEM ACCORDINGLY.  IN MANY
INSTANCES THIS EVALUATION AND DECISION MAY BE CORRECT, FOR THE DETAINER
CAN AGGRAVATE THE ESCAPE POTENTIALITY OF A PRISONER."  BENNETT, "THE
LAST FULL OUNCE," 23 FED. PROB.  NO. 2, P. 20, AT 21 (1959).  SEE ALSO
NOTE, DETAINERS AND THE CORRECTIONAL PROCESS, 1966 WASH.U.L.Q. 417, 418
423. 

/9/  BENNETT, SUPRA, N. 8, AT 21; SEE WALTHER, DETAINER WARRANTS AND
THE SPEEDY TRIAL PROVISION, 46 MARQ.L.REV.  423, 427-428 (1963). 

/10/  NOTE, EFFECTIVE GUARANTY OF A SPEEDY TRIAL FOR CONVICTS IN
OTHER JURISDICTIONS, 77 YALE L.J. 767, 769 (1968). 

/11/  COOPER V. STATE, 400 S.W.2D 890, 892.  THE ONLY OTHER BASIS
SUGGESTED BY THE TEXAS SUPREME COURT FOR ITS DENIAL OF RELIEF IN COOPER
WAS THE EXPENSE THAT WOULD BE INVOLVED IN BRINGING A FEDERAL PRISONER
TO TRIAL, THE COURT NOTING THAT A DIRECTIVE OF THE FEDERAL BUREAU OF
PRISONS PROVIDED THAT "SATISFACTORY ARRANGEMENTS FOR PAYMENT OF
EXPENSES (MUST BE) MADE BEFORE THE PRISONER IS ACTUALLY REMOVED TO THE
PLACE OF TRIAL."  ID., AT 891.  BUT THE EXPENSE INVOLVED IN
EFFECTUATING AN OCCASIONAL WRIT OF HABEAS CORPUS AD PROSEQUENDUM WOULD
HARDLY BE COMPARABLE TO WHAT IS REQUIRED TO IMPLEMENT OTHER
CONSTITUTIONAL RIGHTS, E.G., THE APPOINTMENT OF COUNSEL FOR EVERY
INDIGENT DEFENDANT.  GIDEON V. WAINWRIGHT, 372 U.S. 335.  AND CUSTODIAL
AS WELL AS TRANSPORTATION EXPENSES WOULD ALSO BE INCURRED IF THE STATE
BROUGHT THE PETITIONER TO TRIAL AFTER HIS FEDERAL SENTENCE HAD RUN.  IF
THE PETITIONER IS, AS THE STATE MAINTAINS, NOT AN INDIGENT, THERE IS
NOTHING TO PREVENT A FAIR ASSESSMENT OF NECESSARY EXPENSES AGAINST
HIM.  FINALLY, THE SHORT AND PERHAPS THE BEST ANSWER TO ANY OBJECTION
BASED UPON EXPENSE WAS GIVEN BY THE SUPREME COURT OF WISCONSIN IN A
CASE MUCH LIKE THE PRESENT ONE:  "WE WILL NOT PUT A PRICE TAG UPON
CONSTITUTIONAL RIGHTS."  STATE EX REL. FREDENBERG V. BYRNE, 20 WIS.2D
504, 512, 123 N.W.2D 305, 310. 

/12/  COOPER V. STATE, SUPRA, AT 891. 

/13/  THAT MEMORANDUM ALSO STATES: 

"IT IS THE POLICY OF THE UNITED STATES BUREAU OF PRISONS TO
ENCOURAGE THE EXPEDITIOUS DISPOSITION OF PROSECUTIONS IN STATE COURTS
AGAINST FEDERAL PRISONERS.  THE NORMAL PROCEDURE UNDER WHICH PRODUCTION
IS EFFECTED IS PURSUANT TO A WRIT AD PROSEQUENDUM FROM THE STATE
COURT.  ALMOST INVARIABLY, THE UNITED STATES HAS COMPLIED WITH SUCH
WRITS AND EXTENDED ITS COOPERATION TO THE STATE AUTHORITIES.  THE
BUREAU OF PRISONS INFORMS US THAT REMOVALS ARE NORMALLY MADE BY UNITED
STATES MARSHALS, WITH THE EXPENSES BORNE BY THE STATE AUTHORITIES.  IN
SOME INSTANCES, TO MITIGATE THE COST TO THE STATE, THE BUREAU OF
PRISONS HAS REMOVED AN INMATE TO A FEDERAL FACILITY CLOSE TO THE SITE
OF PROSECUTION.  IN A RELATIVELY SMALL NUMBER OF INSTANCES, PRISONERS
HAVE BEEN PRODUCED PURSUANT TO 18 U.S.C. 4085, WHICH PROVIDES IN PART: 

"'WHENEVER ANY FEDERAL PRISONER HAS BEEN INDICTED, INFORMED AGAINST,
OR CONVICTED OF A FELONY IN A COURT OF RECORD OF ANY STATE OR THE
DISTRICT OF COLUMBIA, THE ATTORNEY GENERAL SHALL, IF HE FINDS IT IN THE
PUBLIC INTEREST TO DO SO, UPON THE REQUEST OF THE GOVERNOR OR THE
EXECUTIVE AUTHORITY THEREOF, AND UPON THE PRESENTATION OF A CERTIFIED
COPY OF SUCH INDICTMENT, INFORMATION OR JUDGMENT OF CONVICTION, CAUSE
SUCH A PERSON, PRIOR TO HIS RELEASE, TO BE TRANSFERRED TO A PENAL OR
CORRECTIONAL INSTITUTION WITHIN SUCH STATE OR DISTRICT.'" 

MR. JUSTICE BLACK CONCURS IN THE OPINION AND JUDGMENT OF THE COURT,
BUT HE WOULD MAKE IT ABSOLUTELY CLEAR TO THE SUPREME COURT OF TEXAS
THAT SO FAR AS THE FEDERAL CONSTITUTIONAL QUESTION IS CONCERNED ITS
JUDGMENT IS SET ASIDE ONLY FOR THE PURPOSE OF GIVING THE PETITIONER A
TRIAL, AND THAT IF A TRIAL IS GIVEN THE CASE SHOULD NOT BE DISMISSED. 

SEPARATE OPINION OF MR. JUSTICE HARLAN. 

I AGREE THAT A STATE MAY NOT IGNORE A CRIMINAL ACCUSED'S REQUEST TO
BE BROUGHT TO TRIAL, MERELY BECAUSE HE IS INCARCERATED IN ANOTHER
JURISDICTION, BUT THAT IT MUST MAKE A REASONABLE EFFORT TO SECURE HIS
PRESENCE FOR TRIAL.  THIS MUCH IS REQUIRED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, AND I WOULD REST DECISION OF THIS CASE ON
THAT GROUND, AND NOT ON "INCORPORATION" OF THE SIXTH AMENDMENT'S SPEEDY
TRIAL PROVISION INTO THE FOURTEENTH.  SEE MY OPINION CONCURRING IN THE
RESULT IN KLOPFER V. NORTH CAROLINA, 386 U.S. 213, 226 (1967). 

I BELIEVE, HOWEVER, THAT THE STATE IS ENTITLED TO MORE EXPLICITNESS
FROM US AS TO WHAT IS TO BE EXPECTED OF IT ON REMAND THAN WHAT IS
CONVEYED MERELY BY THE REQUIREMENT THAT FURTHER PROCEEDINGS NOT BE
"INCONSISTENT WITH THIS OPINION."  MUST THE CHARGES AGAINST PETITIONER
BE DISMISSED?  OR MAY TEXAS NOW SECURE HIS PRESENCE AND PROCEED TO TRY
HIM?  IF PETITIONER CONTENDS THAT HE HAS BEEN PREJUDICED BY THE NINE
YEAR DELAY, HOW IS THIS CLAIM TO BE ADJUDICATED? 

THIS CASE IS ONE OF FIRST IMPRESSION FOR US, AND DECIDES A QUESTION
ON WHICH THE STATE AND LOWER FEDERAL COURTS HAVE BEEN DIVIDED.  UNDER
THESE PARTICULAR CIRCUMSTANCES, I DO NOT BELIEVE THAT TEXAS SHOULD
AUTOMATICALLY FORFEIT THE RIGHT TO TRY PETITIONER.  IF THE STATE STILL
DESIRES TO BRING HIM TO TRIAL, IT SHOULD DO SO FORTHWITH.  AT TRIAL, IF
PETITIONER MAKES A PRIMA FACIE SHOWING THAT HE HAS IN FACT BEEN
PREJUDICED BY THE STATE'S DELAY, I WOULD THEN SHIFT TO THE STATE THE
BURDEN OF PROVING THE CONTRARY. 

MR. JUSTICE WHITE, CONCURRING. 

I JOIN THE OPINION OF THE COURT, UNDERSTANDING ITS REMAND OF THE
CAUSE "FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION" TO
LEAVE OPEN THE ULTIMATE QUESTION WHETHER TEXAS MUST DISMISS THE
CRIMINAL PROCEEDINGS AGAINST THE PETITIONER.  THE TEXAS COURT'S
ERRONEOUS RELIANCE ON THE FACT OF INCARCERATION ELSEWHERE PREVENTED IT
FROM REACHING THE OTHER FACETS OF THIS QUESTION, WHICH MAY NOW BE
ADJUDICATED IN THE MANNER PERMITTED BY TEXAS PROCEDURE. 

CHARLES ALAN WRIGHT, BY APPOINTMENT OF THE COURT, POST, P. 813,
ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

JOE S. MOSS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, A. J. CARUBBI, JR., EXECUTIVE ASSISTANT
ATTORNEY GENERAL, ROBERT C. FLOWERS AND GILBERT J. PENA, ASSISTANT
ATTORNEYS GENERAL, AND CAROL S. VANCE. 
..END :
























HUNTER V. ERICKSON, 393 U.S. 385 


       HUNTER V. ERICKSON, MAYOR OF AKRON, ET AL.

  APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 63.  ARGUED NOVEMBER 13, 1968.-- DECIDED JANUARY 20,

  1969. 


THE AKRON CITY COUNCIL ENACTED A FAIR HOUSING ORDINANCE WHICH
ESTABLISHED A COMMISSION ON EQUAL OPPORTUNITY IN HOUSING TO ENFORCE THE
ANTIDISCRIMINATION SECTIONS THROUGH CONCILIATION OR PERSUASION, IF
POSSIBLE, OR, IF NOT, THROUGH ORDERS JUDICIALLY ENFORCEABLE. 
THEREAFTER, A PROPOSAL FOR AN AMENDMENT TO THE CITY CHARTER, WHICH HAD
BEEN PLACED ON THE BALLOT BY PETITION, WAS PASSED.  IT PROVIDED THAT
ANY ORDINANCE (INCLUDING ANY IN EFFECT) WHICH REGULATES THE USE, SALE,
ADVERTISEMENT, TRANSFER, LISTING ASSIGNMENT, LEASE, SUBLEASE, OR
FINANCING OF REAL PROPERTY ON THE BASIS OF RACE, COLOR, RELIGION,
NATIONAL ORIGIN, OR ANCESTRY MUST FIRST BE APPROVED BY A MAJORITY OF
THE VOTERS BEFORE BECOMING EFFECTIVE.  THE TRIAL COURT DENIED
APPELLANT'S HOUSING DISCRIMINATION COMPLAINT, HOLDING THAT THE FAIR
HOUSING ORDINANCE WAS RENDERED INEFFECTIVE BY THE CHARTER AMENDMENT,
AND THE OHIO SUPREME COURT AFFIRMED, FINDING THAT THE AMENDMENT WAS NOT
REPUGNANT TO THE EQUAL PROTECTION CLAUSE.  HELD: 

1.  THE CASE IS NOT MOOT.  NEITHER THE 1968 CIVIL RIGHTS ACT (WHICH
SPECIFICALLY PRESERVES LOCAL FAIR HOUSING LAWS), NOR THE 1866 CIVIL
RIGHTS ACT, WAS INTENDED TO PRE-EMPT LOCAL HOUSING ORDINANCES; THE OHIO
ACT OF OCTOBER 30, 1965 (WHICH CONCERNS "COMMERCIAL" HOUSING), DOES NOT
APPLY TO THIS CASE; AND THE AKRON ORDINANCE PROVIDES AN ENFORCEMENT
MECHANISM UNMATCHED BY EITHER STATE OR FEDERAL LEGISLATION.  PP. 388
389. 

2.  THE CHARTER AMENDMENT CONTAINS AN EXPLICITLY RACIAL
CLASSIFICATION TREATING RACIAL HOUSING MATTERS DIFFERENTLY FROM OTHER
RACIAL AND HOUSING MATTERS AND PLACES SPECIAL BURDENS ON RACIAL AND
RELIGIOUS MINORITIES WITHIN THE GOVERNMENTAL PROCESS BY MAKING IT MORE
DIFFICULT FOR THEM TO SECURE LEGISLATION ON THEIR BEHALF.  PP. 389
391. 

3.  RACIAL CLASSIFICATIONS "BEAR A HEAVIER BURDEN OF JUSTIFICATION"
THAN OTHER CLASSIFICATIONS, AND HERE AKRON HAS NOT JUSTIFIED ITS
DISCRIMINATION AGAINST MINORITIES, WHICH CONSTITUTES A DENIAL OF THE
EQUAL PROTECTION OF THE LAWS.  PP. 391-393. 

12 OHIO ST.2D 116, 233 N.E.2D 129, REVERSED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE CITY OF AKRON, OHIO, HAS
DENIED A NEGRO CITIZEN, NELLIE HUNTER, THE EQUAL PROTECTION OF ITS LAWS
BY AMENDING THE CITY CHARTER TO PREVENT THE CITY COUNCIL FROM
IMPLEMENTING ANY ORDINANCE DEALING WITH RACIAL, RELIGIOUS, OR ANCESTRAL
DISCRIMINATION IN HOUSING WITHOUT THE APPROVAL OF THE MAJORITY OF THE
VOTERS OF AKRON. 

THE AKRON CITY COUNCIL IN 1964 ENACTED A FAIR HOUSING ORDINANCE
PREMISED ON A RECOGNITION OF THE SOCIAL AND ECONOMIC LOSSES TO SOCIETY
WHICH FLOW FROM SUBSTANDARD, GHETTO HOUSING AND ITS TENDENCY TO BREED
DISCRIMINATION AND SEGREGATION CONTRARY TO THE POLICY OF THE CITY TO
"ASSURE EQUAL OPPORTUNITY TO ALL PERSONS TO LIVE IN DECENT HOUSING
FACILITIES REGARDLESS OF RACE, COLOR, RELIGION, ANCESTRY OR NATIONAL
ORIGIN."  AKRON ORDINANCE NO. 873-1964 SEC. 1.  A COMMISSION ON EQUAL
OPPORTUNITY IN HOUSING WAS ESTABLISHED BY THE ORDINANCE IN THE OFFICE
OF THE MAYOR TO ENFORCE THE ANTIDISCRIMINATION SECTIONS OF THE
ORDINANCE THROUGH CONCILIATION OR PERSUASION IF POSSIBLE, BUT, IF NOT,
THEN THROUGH "SUCH ORDER AS THE FACTS WARRANT," BASED UPON A HEARING AT
WHICH WITNESSES MAY BE SUBPOENAED, AND ENTITLED TO ENFORCEMENT IN THE
COURTS.  AKRON ORDINANCE NO. 873-1964, AS AMENDED BY AKRON ORDINANCE
NO. 926-1964. 

SEEKING TO INVOKE THIS MACHINERY WHICH HAD BEEN ESTABLISHED BY THE
CITY FOR HER BENEFIT, NELLIE HUNTER ADDRESSED A COMPLAINT TO THE
COMMISSION ASSERTING THAT A REAL ESTATE AGENT HAD COME TO SHOW HER A
LIST OF HOUSES FOR SALE, BUT THAT ON MEETING MRS. HUNTER THE AGENT
"STATED THAT SHE COULD NOT SHOW ME ANY OF THE HOUSES ON THE LIST SHE
HAD PREPARED FOR ME BECAUSE ALL OF THE OWNERS HAD SPECIFIED THEY DID
NOT WISH THEIR HOUSES SHOWN TO NEGROES."  MRS. HUNTER'S AFFIDAVIT MET
WITH THE REPLY THAT THE FAIR HOUSING ORDINANCE WAS UNAVAILABLE TO HER
BECAUSE THE CITY CHARTER HAD BEEN AMENDED TO PROVIDE: 

     "ANY ORDINANCE ENACTED BY THE COUNCIL OF THE CITY OF AKRON

WHICH REGULATES THE USE, SALE, ADVERTISEMENT, TRANSFER, LISTING

  ASSIGNMENT, LEASE, SUBLEASE OR FINANCING OF REAL PROPERTY OF ANY

  KIND OR OF ANY INTEREST THEREIN ON THE BASIS OF RACE, COLOR,

  RELIGION, NATIONAL ORIGIN OR ANCESTRY MUST FIRST BE APPROVED BY A

  MAJORITY OF THE ELECTORS VOTING ON THE QUESTION AT A REGULAR OR

  GENERAL ELECTION BEFORE SAID ORDINANCE SHALL BE EFFECTIVE.  ANY

  SUCH ORDINANCE IN EFFECT AT THE TIME OF THE ADOPTION OF THIS

  SECTION SHALL CEASE TO BE EFFECTIVE UNTIL APPROVED BY THE

  ELECTORS AS PROVIDED HEREIN."  AKRON CITY CHARTER SEC. 137. 

THE PROPOSAL FOR THE CHARTER AMENDMENT HAD BEEN PLACED ON THE BALLOT AT
A GENERAL ELECTION UPON PETITION OF MORE THAN 10% OF AKRON'S VOTERS,
AND THE AMENDMENT HAD BEEN DULY PASSED BY A MAJORITY. 

APPELLANT THEN BROUGHT AN ACTION IN THE OHIO COURTS ON BEHALF OF THE
MUNICIPALITY, HERSELF, AND ALL OTHERS SIMILARLY SITUATED, TO OBTAIN A
WRIT OF MANDAMUS REQUIRING THE MAYOR TO CONVENE THE COMMISSION AND TO
REQUIRE THE COMMISSION AND THE DIRECTOR OF LAW TO ENFORCE THE FAIR
HOUSING ORDINANCE AND PROCESS HER COMPLAINT.  THE TRIAL COURT INITIALLY
HELD THE ENFORCEMENT PROVISIONS OF THE FAIR HOUSING ORDINANCE INVALID
UNDER STATE LAW, BUT THE SUPREME COURT OF OHIO REVERSED, STATE EX REL.
HUNTER V. ERICKSON, 6 OHIO ST.2D 130, 216 N.E.2D 371 (1966).  ON
REMAND, THE TRIAL COURT HELD THAT THE FAIR HOUSING ORDINANCE WAS
RENDERED INEFFECTIVE BY THE CHARTER AMENDMENT, AND THE SUPREME COURT OF
OHIO AFFIRMED, HOLDING THAT THE CHARTER AMENDMENT WAS NOT REPUGNANT TO
THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION. 

AKRON CONTENDS THAT THIS CASE HAS BEEN RENDERED MOOT BY THE PASSAGE OF
THE CIVIL RIGHTS ACT OF 1968, PUB. L. 90-284, 82 STAT. 73, THE DECISION
OF THIS COURT IN JONES V. ALFRED H. MAYER CO., 392 U.S. 409 (1968), AND
THE PASSAGE OF AN OHIO ACT EFFECTIVE OCTOBER 30, 1965, OHIO REV. CODE
ANN., TIT. 41, C. 4112.  IT IS TRUE THAT EACH OF THESE EVENTS IS
RELATED TO OPEN HOUSING, BUT NONE OF THE LEGISLATION INVOLVED WAS
INTENDED TO PRE-EMPT LOCAL HOUSING ORDINANCES OR PROVIDE RIGHTS AND
REMEDIES WHICH ARE EFFECTIVE SUBSTITUTES FOR THE AKRON LAW. 

THE 1968 CIVIL RIGHTS ACT SPECIFICALLY PRESERVES AND DEFERS TO LOCAL
FAIR HOUSING LAWS, /1/  AND THE 1866 CIVIL RIGHTS ACT /2/  CONSIDERED
IN JONES SHOULD BE READ TOGETHER WITH THE LATER STATUTE ON THE SAME
SUBJECT, UNITED STATES V. STEWART, 311 U.S. 60, 64-65 (1940); TALBOT V.
SEEMAN, 1 CRANCH 1, 34-35 (1801), SO AS NOT TO PRE-EMPT THE LOCAL
LEGISLATION WHICH THE FAR MORE DETAILED ACT OF 1968 SO EXPLICITLY
PRESERVES.  IF THE OHIO STATUTE MOOTED THE CASE, SURELY THE OHIO
SUPREME COURT WOULD HAVE SO HELD WHEN THE VALIDITY OF THE AKRON
ORDINANCE WAS TWICE BEFORE IT AFTER THE OHIO STATUTE WAS PASSED. 
MOREOVER, THE SECTIONS OF THE OHIO LAW WHICH ARE CRUCIAL HERE APPLY
ONLY TO "COMMERCIAL HOUSING," AND ON ANY READING WE CAN IMAGINE DO NOT
APPLY TO MRS. HUNTER'S CASE, /3/  THOUGH THE AKRON ORDINANCE DOES. 
FINALLY, THE CASE CANNOT BE CONSIDERED MOOT SINCE THE AKRON ORDINANCE
PROVIDES AN ENFORCEMENT MECHANISM UNMATCHED BY EITHER STATE OR FEDERAL
LEGISLATION.  UNLIKE STATE OR FEDERAL PROGRAMS, THE AKRON ORDINANCE
BRINGS LOCAL PEOPLE TOGETHER FOR CONCILIATION AND PERSUASION BY AND
BEFORE A LOCAL TRIBUNAL.  IT IS PRECISELY THIS SORT OF VERY LOCALIZED
SOLUTION TO WHICH CONGRESS MEANT TO DEFER.  WE THEREFORE REJECT THE
CONTENTION THAT THIS CASE IS MOOT. 

AKRON ARGUES THAT THIS CASE IS UNLIKE REITMAN V. MULKEY, 387 U.S.
369 (1967) IN THAT HERE THE CITY CHARTER DECLARES NO RIGHT TO
DISCRIMINATE IN HOUSING, AUTHORIZES AND ENCOURAGES NO HOUSING
DISCRIMINATION, AND PLACES NO BAN ON THE ENACTMENT OF FAIR HOUSING
ORDINANCES.  BUT WE NEED NOT REST ON REITMAN TO DECIDE THIS CASE. 
HERE, UNLIKE REITMAN, THERE WAS AN EXPLICITLY RACIAL CLASSIFICATION
TREATING RACIAL HOUSING MATTERS DIFFERENTLY FROM OTHER RACIAL AND
HOUSING MATTERS. 

BY ADDING SEC. 137 TO ITS CHARTER THE CITY OF AKRON, WHICH
UNQUESTIONABLY WIELDS STATE POWER, /4/  NOT ONLY SUSPENDED THE
OPERATION OF THE EXISTING ORDINANCE FORBIDDING HOUSING DISCRIMINATION,
BUT ALSO REQUIRED THE APPROVAL OF THE ELECTORS BEFORE ANY FUTURE
ORDINANCE COULD TAKE EFFECT.  /5/  SECTION 137 THUS DREW A DISTINCTION
BETWEEN THOSE GROUPS WHO SOUGHT THE LAW'S PROTECTION AGAINST RACIAL,
RELIGIOUS, OR ANCESTRAL DISCRIMINATIONS IN THE SALE AND RENTAL OF REAL
ESTATE AND THOSE WHO SOUGHT TO REGULATE REAL PROPERTY TRANSACTIONS IN
THE PURSUIT OF OTHER ENDS.  THOSE WHO SOUGHT, OR WOULD BENEFIT FROM,
MOST ORDINANCES REGULATING THE REAL PROPERTY MARKET REMAINED SUBJECT TO
THE GENERAL RULE:  THE ORDINANCE WOULD BECOME EFFECTIVE 30 DAYS AFTER
PASSAGE BY THE CITY COUNCIL, OR IMMEDIATELY IF PASSED AS AN EMERGENCY
MEASURE, AND WOULD BE SUBJECT TO REFERENDUM ONLY IF 10% OF THE ELECTORS
SO REQUESTED BY FILING A PROPER AND TIMELY PETITION.  /6/  PASSAGE BY
THE COUNCIL SUFFICED UNLESS THE ELECTORS THEMSELVES INVOKED THE GENERAL
REFERENDUM PROVISIONS OF THE CITY CHARTER.  BUT FOR THOSE WHO SOUGHT
PROTECTION AGAINST RACIAL BIAS, THE APPROVAL OF THE CITY COUNCIL WAS
NOT ENOUGH.  A REFERENDUM WAS REQUIRED BY CHARTER AT A GENERAL OR
REGULAR ELECTION, WITHOUT ANY PROVISION FOR USE OF THE EXPEDITED
SPECIAL ELECTION ORDINARILY AVAILABLE.  THE AKRON CHARTER OBVIOUSLY
MADE IT SUBSTANTIALLY MORE DIFFICULT TO SECURE ENACTMENT OF ORDINANCES
SUBJECT TO SEC. 137. 

ONLY LAWS TO END HOUSING DISCRIMINATION BASED ON "RACE, COLOR,
RELIGION, NATIONAL ORIGIN OR ANCESTRY" MUST RUN SEC. 137'S GANTLET.  IT
IS TRUE THAT THE SECTION DRAWS NO DISTINCTIONS AMONG RACIAL AND
RELIGIOUS GROUPS.  NEGROES AND WHITES, JEWS AND CATHOLICS ARE ALL
SUBJECT TO THE SAME REQUIREMENTS IF THERE IS HOUSING DISCRIMINATION
AGAINST THEM WHICH THEY WISH TO END.  BUT SEC. 137 NEVERTHELESS
DISADVANTAGES THOSE WHO WOULD BENEFIT FROM LAWS BARRING RACIAL,
RELIGIOUS, OR ANCESTRAL DISCRIMINATIONS AS AGAINST THOSE WHO WOULD BAR
OTHER DISCRIMINATIONS OR WHO WOULD OTHERWISE REGULATE THE REAL ESTATE
MARKET IN THEIR FAVOR.  THE AUTOMATIC REFERENDUM SYSTEM DOES NOT REACH
HOUSING DISCRIMINATION ON SEXUAL OR POLITICAL GROUNDS, OR AGAINST THOSE
WITH CHILDREN OR DOGS, NOR DOES IT AFFECT TENANTS SEEKING MORE HEAT OR
BETTER MAINTENANCE FROM LANDLORDS, NOR THOSE SEEKING RENT CONTROL,
URBAN RENEWAL, PUBLIC HOUSING, OR NEW BUILDING CODES. 

MOREOVER, ALTHOUGH THE LAW ON ITS FACE TREATS NEGRO AND WHITE, JEW
AND GENTILE IN AN IDENTICAL MANNER, THE REALITY IS THAT THE LAW'S
IMPACT FALLS ON THE MINORITY.  THE MAJORITY NEEDS NO PROTECTION AGAINST
DISCRIMINATION AND IF IT DID, A REFERENDUM MIGHT BE BOTHERSOME BUT NO
MORE THAN THAT.  LIKE THE LAW REQUIRING SPECIFICATION OF CANDIDATES'
RACE ON THE BALLOT, ANDERSON V. MARTIN, 375 U.S. 399 (1964), SEC. 137
PLACES SPECIAL BURDENS ON RACIAL MINORITIES WITHIN THE GOVERNMENTAL
PROCESS.  THIS IS NO MORE PERMISSIBLE THAN DENYING THEM THE VOTE, ON AN
EQUAL BASIS WITH OTHERS.  CF. GOMILLION V. LIGHTFOOT, 364 U.S. 339
(1960); REYNOLDS V. SIMS, 377 U.S. 533 (1964); AVERY V. MIDLAND COUNTY,
390 U.S. 474 (1968).  THE PREAMBLE TO THE OPEN HOUSING ORDINANCE WHICH
WAS SUSPENDED BY SEC. 137 RECITED THAT THE POPULATION OF AKRON CONSISTS
OF "PEOPLE OF DIFFERENT RACE, COLOR, RELIGION, ANCESTRY OR NATIONAL
ORIGIN, MANY OF WHOM LIVE IN CIRCUMSCRIBED AND SEGREGATED AREAS, UNDER
SUB-STANDARD, UNHEALTHFUL, UNSAFE, UNSANITARY AND OVERCROWDED
CONDITIONS, BECAUSE OF DISCRIMINATION IN THE SALE, LEASE, RENTAL AND
FINANCING OF HOUSING."  SUCH WAS THE SITUATION IN AKRON.  IT IS AGAINST
THIS BACKGROUND THAT THE REFERENDUM REQUIRED BY SEC. 137 MUST BE
ASSESSED. 

BECAUSE THE CORE OF THE FOURTEENTH AMENDMENT IS THE PREVENTION OF
MEANINGFUL AND UNJUSTIFIED OFFICIAL DISTINCTIONS BASED ON RACE,
SLAUGHTER-HOUSE CASES, 16 WALL, 36, 71 (1873); STRAUDER V. WEST
VIRGINIA, 100 U.S. 303, 307-308 (1880); EX PARTE VIRGINIA, 100 U.S.
339, 344-345 (1880); MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 192 (1964);
LOVING V. VIRGINIA, 388 U.S. 1, 10 (1967), RACIAL CLASSIFICATIONS ARE
"CONSTITUTIONALLY SUSPECT," BOLLING V. SHARPE, 347 U.S. 497, 499
(1954), AND SUBJECT TO THE "MOST RIGID SCRUTINY,"  KOREMATSU V. UNITED
STATES, 323 U.S. 214, 216 (1944).  THEY "BEAR A FAR HEAVIER BURDEN OF
JUSTIFICATION" THAN OTHER CLASSIFICATIONS, MCLAUGHLIN V. FLORIDA, 379
U.S. 184, 194 (1964). 

WE ARE UNIMPRESSED WITH ANY OF AKRON'S JUSTIFICATIONS FOR ITS
DISCRIMINATION.  CHARACTERIZING IT SIMPLY AS A PUBLIC DECISION TO MOVE
SLOWLY IN THE DELICATE AREA OF RACE RELATIONS EMPHASIZES THE IMPACT AND
BURDEN OF SEC. 137, BUT DOES NOT JUSTIFY IT.  THE AMENDMENT WAS
UNNECESSARY EITHER TO IMPLEMENT A DECISION TO GO SLOWLY, OR TO ALLOW
THE PEOPLE OF AKRON TO PARTICIPATE IN THAT DECISION.  /7/  LIEWISE,
INSISTING THAT A STATE MAY DISTRIBUTE LEGISLATIVE POWER AS IT DESIRES
AND THAT THE PEOPLE MAY RETAIN FOR THEMSELVES THE POWER OVER CERTAIN
SUBJECTS MAY GENERALLY BE TRUE, BUT THESE PRINCIPLES FURNISH NO
JUSTIFICATION FOR A LEGISLATIVE STRUCTURE WHICH OTHERWISE WOULD VIOLATE
THE FOURTEENTH AMENDMENT.  NOR DOES THE IMPLEMENTATION OF THIS CHANGE
THROUGH POPULAR REFERENDUM IMMUNIZE IT.  LUCAS V. COLORADO GENERAL
ASSEMBLY, 377 U.S. 713, 736-737 (1964).  THE SOVEREIGNTY OF THE PEOPLE
IS ITSELF SUBJECT TO THOSE CONSTITUTIONAL LIMITATIONS WHICH HAVE BEEN
DULY ADOPTED AND REMAIN UNREPEALED.  EVEN THOUGH AKRON MIGHT HAVE
PROCEEDED BY MAJORITY VOTE AT TOWN MEETING ON ALL ITS MUNICIPAL
LEGISLATION, IT HAS INSTEAD CHOSEN A MORE COMPLEX SYSTEM.  HAVING DONE
SO, THE STATE MAY NO MORE DISADVANTAGE ANY PARTICULAR GROUP BY MAKING
IT MORE DIFFICULT TO ENACT LEGISLATION IN ITS BEHALF THAN IT MAY DILUTE
ANY PERSON'S VOTE OR GIVE ANY GROUP A SMALLER REPRESENTATION THAN
ANOTHER OF COMPARABLE SIZE.  CF. REYNODLS V. SIMS, 377 U.S. 533 (1964);
AVERY V. MIDLAND COUNTY, 390 U.S. 474 (1968). 

WE HOLD THAT SEC. 137 DISCRIMINATES AGAINST MINORITIES, AND
CONSTITUTES A REAL, SUBSTANTIAL, AND INVIDIOUS DENIAL OF THE EQUAL
PROTECTION OF THE LAWS. 

              REVERSED. 

/1/  NOTHING IN THE FEDERAL STATUTE IS TO BE CONSTRUED "TO
INVALIDATE OR LIMIT ANY LAW OF A STATE OR POLITICAL SUBDIVISION OF A
STATE" GIVING SIMILAR HOUSING RIGHTS, AND DEFERENCE IS TO BE GIVEN TO
LOCAL ENFORCEMENT.  CIVIL RIGHTS ACT OF 1968, TIT. VIII, SECS. 815,
810(C), 82 STAT. 89, 86. 

/2/  "ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT,
IN EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS THEREOF
TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL
PROPERTY."  SEC. 1, 14 STAT. 27, AS AMENDED, 42 U.S.C. 1982. 

/3/  THE OHIO STATUTE MAKES IT UNLAWFUL FOR "ANY PERSON" TO "(REFUSE
TO SELL . . . OR OTHERWISE DENY OR WITHHOLD COMMERCIAL HOUSING FROM ANY
PERSON BECAUSE OF THE RACE (OR) COLOR" OF THE PROSPECTIVE OWNER.  OHIO
REV. CODE ANN. SECS. 4112.02(H) AND 4112.02(H)(1) (SUPP. 1967). 
"COMMERCIAL HOUSING" IS DEFINED TO EXCLUDE "ANY PERSONAL RESIDENCE
OFFERED FOR SALE OR RENT BY THE OWNER OR BY HIS BROKER, SALESMAN,
AGENT, OR EMPLOYEE."  OHIO REV. CODE ANN. SEC. 4112.01(K) (SUPP.
1967).  THE STATUTE MAKES IT UNLAWFUL TO "(PRINT, PUBLISH, OR CIRCULATE
ANY STATEMENT OR ADVERTISEMENT RELATING TO THE SALE (OF A) . . .
PERSONAL RESIDENCE . . . WHICH INDICATES ANY PREFERENCE, LIMITATION,
SPECIFICATION, OR DISCRIMINATION BASED UPON RACE.  . . . "  OHIO REV.
CODE ANN. SEC. 4112.02(H)(6) (SUPP. 1967).  SINCE MRS. HUNTER DOES NOT
SEEK COMMERCIAL HOUSING, OR COMPLAIN OF THE AFFRONT TO HER
SENSIBILITIES OF HEARING A "CIRCULATED" STATEMENT (IF THE OHIO STATUTE
GOES THAT FAR) SHE CANNOT OBTAIN THE RELIEF SHE SEEKS UNDER THE OHIO
STATUTE.     /4/  SEE, E.G., EVANS V. NEWTON, 382 U.S. 296 (1966);
BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715 (1961); SHELLEY V.
KRAEMER, 334 U.S. 1 (1948). 

/5/  THUS WE DO NOT HOLD THAT MERE REPEAL OF AN EXISTING ORDINANCE
VIOLATES THE FOURTEENTH AMENDMENT. 

/6/  ORDINANCES MAY BE INITIATED THROUGH A PETITION SIGNED BY 7% OF
THE VOTERS, AND THE CITY CHARTER MAY BE AMENDED OR MEASURES ENACTED BY
THE COUNCIL REPEALED THROUGH A REFERENDUM WHICH MAY BE OBTAINED ON
PETITION OF 10% OF THE VOTERS. 

/7/  THE PEOPLE OF AKRON HAD THE POWER TO INITIATE LEGISLATION, OR
TO REVIEW COUNCIL DECISIONS, EVEN BEFORE SEC. 137.  SEE N. 6, SUPRA.
THE PROCEDURAL PREREQUISITES FOR THIS POPULAR ACTION ARE PERFECTLY
REASONABLE, AS THE GATHERING OF 10% OF THE VOTERS' SIGNATURES IN THE
COURSE OF PASSING SEC. 137 ILLUSTRATES. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

AT THE OUTSET, I THINK IT WELL TO SKETCH MY CONSTITUTIONAL APPROACH
TO STATE STATUTES WHICH STRUCTURE THE INTERNAL GOVERNMENTAL PROCESS AND
WHICH ARE CHALLENGED UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  FOR EQUAL PROTECTION PURPOSES, I BELIEVE THAT
LAWS WHICH DEFINE THE POWERS OF POLITICAL INSTITUTIONS FALL INTO TWO
CLASSES.  FIRST, A STATUTE MAY HAVE THE CLEAR PURPOSE OF MAKING IT MORE
DIFFICULT FOR RACIAL AND RELIGIOUS MINORITIES TO FURTHER THEIR
POLITICAL AIMS.  LIKE ANY OTHER STATUTE WHICH IS DISCRIMINATORY ON ITS
FACE, SUCH A LAW CANNOT BE PERMITTED TO STAND UNLESS IT CAN BE
SUPPORTED BY STATE INTERESTS OF THE MOST WEIGHTY AND SUBSTANTIAL KIND. 
MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 192 (1964). 

MOST LAWS WHICH DEFINE THE STRUCTURE OF POLITICAL INSTITUTIONS,
HOWEVER, FALL INTO A SECOND CLASS.  THEY ARE DESIGNED WITH THE AIM OF
PROVIDING A JUST FRAMEWORK WITHIN WHICH THE DIVERSE POLITICAL GROUPS IN
OUR SOCIETY MAY FAIRLY COMPETE AND ARE NOT ENACTED WITH THE PURPOSE OF
ASSISTING ONE PARTICULAR GROUP IN ITS STRUGGLE WITH ITS POLITICAL
OPPONENTS.  CONSIDER, FOR EXAMPLE, AKRON'S PROCEDURE WHICH REQUIRES
THAT ALMOST ANY ORDINANCE BE SUBMITTED TO A GENERAL REFERENDUM IF 10%
OF THE ELECTORATE SIGNS AN APPROPRIATE PETITION.  /1/  THIS RULE
OBVIOUSLY DOES NOT HAVE THE PURPOSE OF PROTECTING ONE PARTICULAR GROUP
TO THE DETRIMENT OF ALL OTHERS.  IT WILL SOMETIMES OPERATE IN FAVOR OF
ONE FACTION; SOMETIMES IN FAVOR OF ANOTHER.  AKRON HAS ADOPTED THE
REFERENDUM SYSTEM BECAUSE ITS CITIZENS BELIEVE THAT WHENEVER AN ACTION
OF THE CITY COUNCIL RAISES THE EMOTIONAL OPPOSITION OF ANY SIGNIFICANT
GROUP IN THE COMMUNITY, THE PEOPLE SHOULD HAVE A RIGHT TO DECIDE THE
MATTER DIRECTLY.  STATUTES OF THIS TYPE, WHICH ARE GROUNDED UPON
GENERAL DEMOCRATIC PRINCIPLE, DO NOT VIOLATE THE EQUAL PROTECTION
CLAUSE SIMPLY BECAUSE THEY OCCASIONALLY OPERATE TO DISADVANTAGE NEGRO
POLITICAL INTERESTS.  IF A GOVERNMENTAL INSTITUTION IS TO BE FAIR, ONE
GROUP CANNOT ALWAYS BE EXPECTED TO WIN.  IF THE COUNCIL'S FAIR HOUSING
LEGISLATION WERE DEFEATED AT A REFERENDUM, NEGROES WOULD UNDOUBTEDLY
LOSE AN IMPORTANT POLITICAL BATTLE, BUT THEY WOULD NOT THEREBY BE
DENIED EQUAL PROTECTION. 

THIS SAME ANALYSIS APPLIES TO OTHER INSTITUTIONS OF GOVERNMENT WHICH
ARE EVEN MORE SOLIDLY ROOTED IN OUR HISTORY THAN IS THE REFERENDUM. 
THE EXISTENCE OF A BICAMERAL LEGISLATURE OR AN EXECUTIVE VETO MAY ON
OCCASION MAKE IT MORE DIFFICULT FOR MINORITIES TO ACHIEVE FAVORABLE
LEGISLATION; NEVERTHELESS, THEY MAY NOT BE ATTACKED ON EQUAL PROTECTION
GROUNDS SINCE THEY ARE FOUNDED ON NEUTRAL PRINCIPLES.  SIMILARLY, THE
RULE WHICH MAKES IT RELATIVELY DIFFICULT TO AMEND A STATE CONSTITUTION
IS COMMONLY JUSTIFIED ON THE THEORY THAT CONSTITUTIONAL PROVISIONS
SHOULD BE MORE THOROUGHLY SCRUTINIZED AND MORE SOBERLY CONSIDERED THAN
ARE SIMPLE STATUTORY ENACTMENTS.  HERE, TOO, NEGROES MAY STAND TO GAIN
BY THE RULES IF A FAIR HOUSING LAW IS MADE PART OF THE CONSTITUTION, OR
THEY MAY LOSE IF THE CONSTITUTION ADOPTS A POSITION OF STRICT
NEUTRALITY ON THE QUESTION.  SEE REITMAN V. MULKEY, 387 U.S. 369, 389
(1967) (DISSENTING OPINION OF HARLAN, J.).  BUT EVEN IF NEGROES ARE
OBLIGED TO UNDERTAKE THE ARDUOUS TASK OF AMENDING THE STATE
CONSTITUTION, THEY ARE NOT THEREBY DENIED EQUAL PROTECTION.  FOR THE
RULE MAKING CONSTITUTIONAL AMENDMENT DIFFICULT IS GROUNDED IN NEUTRAL
PRINCIPLE. 

IN THE CASE BEFORE US, HOWEVER, THE CITY OF AKRON HAS NOT ATTEMPTED
TO ALLOCATE GOVERNMENTAL POWER ON THE BASIS OF ANY GENERAL PRINCIPLE. 
HERE, WE HAVE A PROVISION THAT HAS THE CLEAR PURPOSE OF MAKING IT MORE
DIFFICULT FOR CERTAIN RACIAL AND RELIGIOUS MINORITIES TO ACHIEVE
LEGISLATION THAT IS IN THEIR INTEREST.  SINCE THE CHARTER AMENDMENT IS
DISCRIMINATORY ON ITS FACE, AKRON MUST "BEAR A FAR HEAVIER BURDEN OF
JUSTIFICATION" THAN IS REQUIRED IN THE NORMAL CASE.  MCLAUGHLIN V.
FLORIDA, 379 U.S. 184, 194 (1964).  AND AKRON HAS FAILED TO SUSTAIN
THIS BURDEN.  THE CITY'S PRINCIPAL ARGUMENT IN SUPPORT OF THE CHARTER
AMENDMENT RELIES ON THE UNDISPUTED FACT THAT FAIR HOUSING LEGISLATION
MAY OFTEN BE EXPECTED TO RAISE THE PASSIONS OF THE COMMUNITY TO THEIR
HIGHEST PITCH.  IT WAS NOT NECESSARY, HOWEVER, TO PASS THIS AMENDMENT
IN ORDER TO ASSURE THAT PARTICULARLY SENSITIVE ISSUES WILL ULTIMATELY
BE DECIDED BY THE GENERAL ELECTORATE.  AKRON HAS ALREADY PROVIDED A
PROCEDURE, WHICH IS GROUNDED IN NEUTRAL PRINCIPLE, THAT REQUIRES A
GENERAL REFERENDUM ON THIS ISSUE IF 10% OF THE VOTERS INSIST.  IF THE
PROSPECT OF FAIR HOUSING LEGISLATION REALLY AROUSES PASSIONATE
OPPOSITION, THE VOTERS WILL HAVE THE FINAL SAY.  CONSEQUENTLY, THE
CHARTER AMENDMENT WILL HAVE ITS REAL IMPACT ONLY WHEN FAIR HOUSING DOES
NOT AROUSE EXTRAORDINARY CONTROVERSY.  THIS BEING THE CASE, I CAN
PERCEIVE NO LEGITIMATE STATE INTEREST WHICH IN ANY DEGREE VINDICATES
THE ACTION TAKEN BY THE CITY HERE. 

AS I READ THE COURT'S OPINION TO BE ENTIRELY CONSISTENT WITH THE
BASIC PRINCIPLES WHICH I BELIEVE CONTROL THIS CASE, I JOIN IN IT. 

/1/  SECTION 25 OF AKRON'S CITY CHARTER EXEMPTS THE FOLLOWING
ORDINANCES FROM THE REFERENDUM PROCEDURE: 

"(A) ANNUAL APPROPRIATION ORDINANCES.  (B) ORDINANCES OR RESOLUTIONS
PROVIDING FOR THE APPROVAL OR DISAPPROVAL OF APPOINTMENTS OR REMOVALS
AND APPOINTMENTS OR REMOVALS MADE BY COUNCIL.  (C) ACTIONS BY COUNCIL
ON THE APPROVAL OF OFFICIAL BONDS.  (D) ORDINANCES OR RESOLUTIONS
PROVIDING FOR THE SUBMISSION OF ANY PROPOSITION TO THE VOTE OF THE
ELECTORS.  (E) ORDINANCES PROVIDING FOR STREET IMPROVEMENTS PETITIONED
FOR BY OWNERS OF A MAJORITY OF THE FEET FRONT OF THE PROPERTY BENEFITED
AND TO BE SPECIALLY ASSESSED FOR THE COST THEREOF." 

IT IS NOT SUGGESTED THAT ANY OF THESE EXCEPTIONS WERE MADE WITH THE
PURPOSE OF DISADVANTAGING NEGRO POLITICAL INTERESTS. 

MR. JUSTICE BLACK, DISSENTING. 

THINGS, THAT:  "NO STATE SHALL . . . PASS ANY BILL OF ATTAINDER, EX
POST FACTO LAW, OR LAW IMPAIRING THE OBLIGATION OF CONTRACTS.  . . . "
BUT THERE IS NO CONSTITUTIONAL PROVISION ANYWHERE WHICH BARS ANY STATE
FROM REPEALING ANY LAW ON ANY SUBJECT AT ANY TIME IT PLEASES.  ALTHOUGH
THE COURT DENIES THE FACT, I READ ITS OPINION AS HOLDING THAT A CITY
THAT "WIELDS STATE POWER" IS BARRED FROM REPEALING AN EXISTING
ORDINANCE THAT FORBIDS DISCRIMINATION IN THE SALE, LEASE, OR FINANCING
OF REAL PROPERTY "ON THE BASIS OF RACE, COLOR, RELIGION, NATIONAL
ORIGIN OR ANCESTRY.  . . . "  THE RESULT OF WHAT THE COURT DOES IS
PRECISELY AS THOUGH IT HAD COMMANDED THE STATE BY MANDAMUS OR
INJUNCTION TO KEEP ON ITS BOOKS AND ENFORCE WHAT THE COURT FAVORS AS A
FAIR HOUSING LAW. 

THE COURT PURPORTS TO FIND ITS POWER TO FORBID THE CITY TO REPEAL
ITS LAWS IN THE PROVISION OF THE FOURTEENTH AMENDMENT FORBIDDING A
STATE TO "DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL
PROTECTION OF THE LAWS."  FOR SOME TIME I HAVE BEEN FILING MY PROTESTS
AGAINST THE COURT'S USE OF THE DUE PROCESS CLAUSE TO STRIKE DOWN STATE
LAWS THAT SHOCK THE COURT'S CONSCIENCE OR OFFEND THE COURT'S SENSE OF
WHAT IT CONSIDERS TO BE "FAIR" OR "FUNDAMENTAL" OR "ARBITRARY" OR
"CONTRARY TO THE BELIEFS OF THE ENGLISH-SPEAKING PEOPLE."  I NOW
PROTEST JUST AS VIGOROUSLY AGAINST USE OF THE EQUAL PROTECTION CLAUSE
TO BAR STATES FROM REPEALING LAWS THAT THE COURT WANTS THE STATES TO
RETAIN.  OF COURSE THE COURT UNDER THE RULING OF MARBURY V. MADISON, 1
CRANCH 137 (1803), HAS POWER TO INVALIDATE STATE LAWS THAT DISCRIMINATE
ON ACCOUNT OF RACE.  BUT IT DOES NOT HAVE POWER TO PUT ROADBLOCKS TO
PREVENT STATES FROM REPEALING THESE LAWS.  HERE, I THINK THE COURT
NEEDS TO CONTROL ITSELF, AND NOT, AS IT IS DOING, ENCROACH ON A STATE'S
POWERS TO REPEAL ITS OLD LAWS WHEN IT DECIDES TO DO SO. 

ANOTHER ARGUMENT USED BY THE COURT SUPPOSEDLY TO SUPPORT ITS HOLDING
IS THAT WE HAVE IN A NUMBER OF OUR CASES SUPPORTED THE RIGHT TO VOTE
WITHOUT DISCRIMINATION.  AND WE HAVE.  BUT IN NO ONE OF THEM HAVE WE
HELD THAT A STATE IS WITHOUT POWER TO REPEAL ITS OWN LAWS WHEN
CONVINCED BY EXPERIENCE THAT A LAW IS NOT SERVING A USEFUL PURPOSE. 
MOREOVER, IT IS THE COURT'S OPINION HERE THAT CASTS ASPERSIONS UPON THE
RIGHT OF CITIZENS TO VOTE.  I SAY THAT FOR THIS REASON.  AKRON'S
REPEALING LAW HERE HELD UNCONSTITUTIONAL, PROVIDES THAT AN ORDINANCE IN
THE FAIR HOUSING FIELD IN AKRON "MUST FIRST BE APPROVED BY A MAJORITY
OF THE ELECTORS VOTING ON THE QUESTION AT A REGULAR OR GENERAL ELECTION
BEFORE SAID ORDINANCE SHALL BE EFFECTIVE."  THE COURT USES THIS GRANTED
RIGHT OF THE PEOPLE TO VOTE ON THIS IMPORTANT LEGISLATION AS A KEY
ARGUMENT FOR HOLDING THAT THE REPEALER DENIES EQUAL PROTECTION TO
NEGROES.  JUST CONSIDER THAT FOR A MOMENT.  IN THIS GOVERNMENT, WHICH
WE BOAST IS "OF THE PEOPLE, BY THE PEOPLE, AND FOR THE PEOPLE,"
CONDITIONING THE ENACTMENT OF A LAW ON A MAJORITY VOTE OF THE PEOPLE
CONDEMNS THAT LAW AS UNCONSTITUTIONAL IN THE EYES OF THE COURT.  THERE
MAY HAVE BEEN OTHER STATE LAWS HELD UNCONSTITUTIONAL IN THE PAST ON
GROUNDS THAT ARE EQUALLY AS FALLACIOUS AND UNDEMOCRATIC AS THOSE THE
COURT RELIES ON TODAY, BUT IF SO I DO NOT RECALL SUCH CASES AT THE
MOMENT.  IT IS TIME, I THINK, TO RECALL THAT THE EQUAL PROTECTION
CLAUSE DOES NOT EMPOWER THIS COURT TO DECIDE WHAT ORDINANCES OR LAWS A
STATE MAY REPEAL.  I WOULD NOT STRIKE DOWN THIS REPEALING ORDINANCE. 

ROBERT L. CARTER ARGUED THE CUASE FOR APPELLANT.  WITH HIM ON THE
BRIEF WERE NORMAN PURNELL, BERNARD R. ROETZEL, AND LEWIS M. STEEL. 

ALVIN C. VINOPAL ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF WAS WILLIAM R. BAIRD. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES, AS AMICUS
CURIAE, URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL POLLAK, FRANCIS X. BEYTAGH, JR.,
AND NATHAN LEWIN. 
..END :





GORUN V. FALL, 393 U.S. 398 


       GORUN ET AL. V. FALL ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MONTANA. 

        NO. 496.  DECIDED JANUARY 20, 1969. 


287 F.SUPP.  725, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
HARLAN, AND MR. JUSTICE FORTAS CONCUR. 

APPELLANTS ARE NONRESIDENT ALIENS LIVING IN ROMANIA WHO WERE NAMED
AS BENEFICIARIES OF AN ESTATE BEING PROBATED IN MONTANA.  IT HAS BEEN
ASSUMED FOR THE PURPOSE OF THIS APPEAL THAT THEY WILL RECEIVE FROM THAT
ESTATE UNLESS PREVENTED BY THE MONTANA RECIPROCAL INHERITANCE STATUTE
(MONT. REV. CODES ANN. SEC. 91-520) WHICH WOULD CONDITION THEIR
DISTRIBUTION UPON A SHOWING THAT ROMANIA SIMILARLY ALLOWS CITIZENS OF
THIS COUNTRY TO RECEIVE, AND TO ENJOY HERE, PROPERTY BEQUEATHED IN
ROMANIA.  WHILE THE ESTATE WAS BEING ADMINISTERED IN THE STATE COURTS
OF MONTANA, APPELLANTS FILED THIS COMPLAINT TO HAVE THE THREE-JUDGE
COURT DECLARE THE STATUTE UNCONSTITUTIONAL AND TO ENJOIN ITS
APPLICATION.  AFTER ISSUE WAS JOINED, THEY MOVED FOR SUMMARY JUDGMENT
ON THE AUTHORITY OF ZSCHERNIG V. MILLER, 389 U.S. 429, IN WHICH WE
STRUCK DOWN THE OREGON RECIPROCAL INHERITANCE STATUTE AS AN
IMPERMISSIBLE INTERFERENCE WITH FEDERAL POWER OVER FOREIGN AFFAIRS. 

FEDERAL POLICY PERMITS THE FREE FLOW OF FUNDS TO ROMANIA.  ON MARCH
30, 1960, THE UNITED STATES ENTERED INTO AN AGREEMENT WITH ROMANIA, BY
WHICH WE AGREED TO RELEASE ALL BLOCKED ASSETS BELONGING TO ROMANIA. 
SEE 25 FED.REG.  3458. 

AT THE SAME TIME, ROMANIA WAS REMOVED FROM THE LIST OF COUNTRIES TO
WHICH THE SENDING OF PUBLIC FUNDS IS PROHIBITED.  SEE 25 FED.REG. 
3526; 31 CFR 2112.  AS OUR OPINION IN ZSCHERNIG MAKES CLEAR, A STATE
PROBATE JUDGE IS NOT AUTHORIZED TO MAKE OR APPLY A PROBATE RULE
CONTRARY TO THAT FEDERAL POLICY. 

THE THREE-JUDGE COURT DISMISSED THE COMPLAINT, SAYING:  "(THE
MONTANA COURT NOW ADVISED BY ZSCHERNIG OF THE BOUNDARIES OF THE
CONSTITUTIONAL POWER OF THE STATE . . . SHOULD BE FREE TO FASHION A
PROCEDURE FOR APPLYING R.C.M. 1947, SEC. 91-520, IN A MANNER NOT
OFFENSIVE TO THE FEDERAL CONSTITUTION."  287 F.SUPP.  725, 728. 

WHILE THE FOUR OF US HAVE NO OBJECTION TO SUMMARY DISPOSITION OF
THIS APPEAL, DISMISSAL SEEMS SINGULARLY INAPPROPRIATE IN LIGHT OF OUR
RECENT DECISIONS SAYING OVER AND OVER AGAIN THAT A FEDERAL CLAIM IN A
FEDERAL COURT SHOULD BE DECIDED BY THE FEDERAL COURT AND NOT RELEGATED
TO A STATE TRIBUNAL.  SEE SWICKLER V. KOOTA, 389 U.S. 241, 250-252.  IN
SPITE OF OUR AVERSION TO ABSTENTION, SEE ID., AT 248-249; DOMBROWSKI V.
PFISTER, 380 U.S. 479, 486-487, IT WOULD BE BETTER JUDICIAL
ADMINISTRATION TO HOLD THE FEDERAL CASE, PENDING RESOLUTION OF THE
STATE PROCEEDING, THAN TO DISMISS IT IN THE FACE OF CLEAR-CUT FEDERAL
POLICY IN FAVOR OF THE CLAIM OF APPELLANTS.  CF. KAISER STEEL CORP. V.
W.S. RANCH CO., 391 U.S. 593. 

JOHN R. VINTILLA AND NOVAK N. MARKU FOR APPELLANTS; 

FORREST H. ANDERSON, ATTORNEY GENERAL OF MONTANA, AND N. A. ROTERING
SPECIAL ASSISTANT ATTORNEY GENERAL, FOR APPELLEES FALL ET AL. APPELLEE
UNION BANK & TRUST CO. FILED A BRIEF. 
..END :





ALABAMA TEACHERS V. COLLEGE AUTH., 393 U.S. 400 


       ALABAMA STATE TEACHERS ASSN. ET AL. V. ALABAMA PUBLIC SCHOOL

           AND COLLEGE AUTHORITY ET AL.

  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF ALABAMA. 

        NO. 731.  DECIDED JANUARY 20, 1969. 


289 F.SUPP.  784, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IF MY BROTHER HARLAN IS CORRECT AND THIS IS A LOCAL, AS DISTINGUISHED
FROM A STATE-WIDE, LAW, A QUESTION NOT REQUIRING A THREE-JUDGE COURT
(MOODY V. FLOWERS, 387 U.S. 97), THEN WE HAVE BEEN WOEFULLY WRONG IN
OTHER SCHOOL INTEGRATION CASES.  FOR THEY HAVE ALMOST ALWAYS INVOLVED A
SINGLE PUBLIC SCHOOL, WHICH USUALLY IS WHOLLY LOCAL IN ITS OPERATION. 
BUT IN THOSE OTHER THREE-JUDGE COURT CASES WE DEALT WITH THE OPERATION
OF A STATE-WIDE RACIAL SEGREGATION REGIME.  THE PRESENT ACT (ALA. ACTS
1967, NO. 403) REGULATES A STATE AGENCY, THE ALABAMA PUBLIC SCHOOL AND
COLLEGE AUTHORITY, WHICH ISSUES AND SELLS BONDS.  AND THESE BONDS, SO
THE CASE TELLS US, ARE SOLD TO CONSTRUCT WHAT THREATENS TO BECOME AN
ALL-WHITE UNIVERSITY.  /1/ 

CAN WE SAY IN 1969 THAT A STATE HAS NO DUTY TO DISESTABLISH A DUAL
SYSTEM OF HIGHER EDUCATION BASED UPON RACE?  THE THREE-JUDGE COURT IN A
CAREFUL OPINION SEEMS TO DRAW A LINE BETWEEN ELEMENTARY AND SECONDARY
SCHOOLS ON ONE HAND AND COLLEGES AND UNIVERSITIES ON THE OTHER.  THE
INFERENCE IS THAT IF THIS WERE AN ELEMENTARY SCHOOL, THE RESULT WOULD
BE DIFFERENT.  /2/ 

THE PROBLEM IS IN EFFECT A PHASE OF "FREEDOM OF CHOICE" WHICH WAS
BEFORE US IN ANOTHER ASPECT IN GREEN V. COUNTY SCHOOL BOARD, 391 U.S.
430.  /3/ 

I WOULD NOTE PROBABLE JURISDICTION AND SET THE CASE FOR ARGUMENT. 

/1/  THE COUNTERPART OF THIS NEW PREDOMINANTLY ALL-WHITE UNIVERSITY
IS ALABAMA STATE COLLEGE, PREDOMINANTLY NEGRO. 

/2/  THIS IS ON ITS FACE AN AMAZING STATEMENT, AS THE FORERUNNERS OF
BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 349 U.S. 294, WERE CASES
INVOLVING HIGHER EDUCATION.  SEE MISSOURI EX REL. GAINES V. CANADA, 305
U.S. 337; SIPUEL V. BOARD OF REGENTS, 332 U.S. 631; SWEATT V. PAINTER,
339 U.S. 629; MCLAURIN V. OKLAHOMA STATE REGENTS, 339 U.S. 637. 

/3/  AND SEE RANEY V. BOARD OF EDUCATION, 391 U.S. 443; MONROE V.
BOARD OF COMMISSIONERS, 391 U.S. 450. 

MR. JUSTICE HARLAN, DISSENTING. 

ONLY TWO YEARS AGO, MOODY V. FLOWERS, 387 U.S. 97, 101 (1967), MADE
IT CLEAR THAT A THREE-JUDGE COURT NEED NOT BE CONVOKED WHENEVER "A
STATE STATUTE IS INVOLVED BUT ONLY WHEN A STATE STATUTE OF GENERAL AND
STATEWIDE APPLICATION IS SOUGHT TO BE ENJOINED."  ALTHOUGH THIS HOLDING
WAS SOLIDLY GROUNDED IN PRECEDENT AND IN POLICY, THE COURT TODAY
ABANDONS MOODY WITHOUT EXPLANATION BY TAKING JURISDICTION TO AFFIRM
THIS JUDGMENT SUMMARILY. 

THE CASE BEFORE US DOES NOT INVOLVE A STATUTE OF "GENERAL AND
STATEWIDE APPLICATION."  APPELLANTS ARE SIMPLY TRYING TO PREVENT THE
CONSTRUCTION OF A SINGLE PUBLIC COLLEGE TO BE LOCATED IN THE CITY OF
MONTGOMERY.  APPELLANTS MERELY ATTACK A STATUTE WHICH "AUTHORIZES) THE
ALABAMA PUBLIC SCHOOL AND COLLEGE AUTHORITY . . . TO ISSUE . . .
ADDITIONAL BONDS IN THE . . . AMOUNT OF $5,000,000 FOR THE PURPOSE OF
CONSTRUCTING . . . A FOUR-YEAR COLLEGE AT MONTGOMERY UNDER THE
SUPERVISION AND CONTROL OF THE BOARD OF TRUSTEES OF AUBURN
UNIVERSITY."  ALA. ACTS, NO. 403 (1967).  /1/ THE FATE OF THIS ONE
SCHOOL, LIKE THE FATE OF A COUNTY-WIDE REAPPORTIONMENT PLAN, MOODY V.
FLOWERS, SUPRA, OR THE AFFAIRS OF A REGIONAL DRAINAGE DISTRICT, RORICK
V. COMMISSIONERS, 307 U.S. 208 (1939), IS NOT TO BE DECIDED BY A
SPECIAL THREE-JUDGE COURT.  AS MOODY AND RORICK TEACH, THE BARE FACT
THAT A STATE STATUTE IS INVOLVED IS NOT ENOUGH TO TRIGGER 28 U.S.C.
2281.  /2/ 

WE DO NOT DEAL HERE WITH A STATE STATUTE WHICH "EMBODIES A POLICY OF
STATEWIDE CONCERN," SPIELMAN MOTOR SALES CO. V. DODGE, 295 U.S. 89, 94
(1935), BUT ONE WHICH EXPRESSES A JUDGMENT THAT MORE EDUCATIONAL
FACILITIES ARE NEEDED IN A PARTICULAR LOCALITY.  INDEED, APPELLANTS'
CONSTITUTIONAL ATTACK ON THE STATUTE IS ENTIRELY BASED ON THE PECULIAR
LOCAL SITUATION EXISTING IN MONTGOMERY.  AT PRESENT, THERE ARE TWO
STATE-SUPPORTED INSTITUTIONS OF HIGHER LEARNING IN THE CITY.  ALABAMA
STATE IS A FOUR-YEAR COLLEGE WHICH HAS TRADITIONALLY BEEN ATTENDED BY
NEGROES.  ALABAMA EXTENSION CENTER, ON THE OTHER HAND, HAS A
PREDOMINANTLY WHITE ENROLLMENT, BUT DOES NOT AT PRESENT GRANT DEGREES,
OFFERING ITS STUDENTS A SET OF "EXTENSION"  COURSES.  THE EXTENSION
CENTER, HOWEVER, WILL BE ENLARGED TO CREATE MONTGOMERY'S NEW FOUR-YEAR
COLLEGE, WHILE NEGRO ALABAMA STATE HAS BEEN ENTIRELY IGNORED IN THE
PLANNING.  APPELLANTS CONTEND THAT, AT A MINIMUM, THE STATE'S COLLEGE
AUTHORITY WAS CONSTITUTIONALLY OBLIGED TO CONSIDER THE POSSIBILITY OF
COORDINATING THE NEW COLLEGE'S OPERATIONS WITH THOSE OF ALABAMA STATE
BEFORE THE AUTHORITY COULD PROPERLY EMBARK ON ITS PRESENT COURSE. 

THIS BRIEF OUTLINE OF THE FACTS DEMONSTRATES THAT WE ARE DEALING
WITH AN ESSENTIALLY LOCAL DISPUTE WHICH COULD PROPERLY BE HEARD FIRST
BY A SINGLE DISTRICT JUDGE AND THEN BY THE COURT OF APPEALS BEFORE IT
CAME TO US ON CERTIORARI.  /3/ 

I WOULD DISMISS THIS APPEAL FOR WANT OF JURISDICTION. 

/1/  ALTHOUGH THE APPELLANTS' ORIGINAL COMPLAINT ALSO CONTAINED A
CHALLENGE TO THE CONSTITUTIONALITY OF THE ALABAMA STATUTE CREATING THE
STATE'S PUBLIC SCHOOL AND COLLEGE AUTHORITY, ALA. ACTS, NO. 243 (1965),
THIS CHALLENGE WAS ABANDONED AT THE HEARING ON THE MERITS.  SEE 289
F.SUPP.  784, 785, N. 1 (1968). 

/2/  WHILE MY BROTHER DOUGLAS IS QUITE RIGHT IN NOTING THAT BROWN V.
BOARD OF EDUCATION AND TWO OF ITS COMPANION CASES, 347 U.S. 483 (1954),
WERE HEARD ON APPEAL FROM THREE-JUDGE DISTRICT COURTS, HE FAILS TO
RECOGNIZE THAT IN EACH OF THOSE CASES, APPELLANTS HAD SOUGHT TO ENJOIN
THE OPERATION OF A STATE STATUTE OR CONSTITUTIONAL PROVISION OF GENERAL
APPLICATION THAT EITHER REQUIRED OR AUTHORIZED RACIAL SEGREGATION IN
PUBLIC AND SECONDARY SCHOOLS.  ID., AT 486, N. 1.  SEE ALSO, MCLAURIN
V. OKLAHOMA STATE REGENTS, 339 U.S. 637 (1950).  IN CONTRAST, OUR
"FREEDOM-OF-CHOICE" DECISIONS OF LAST TERM, GREEN V. COUNTY SCHOOL
BOARD, 391 U.S. 430 (1968); RANEY V. BOARD OF EDUCATION, 391 U.S. 443
(1968); MONROE V. BOARD OF COMMISSIONERS, 391 U.S. 450 (1968), CAME TO
US ON CERTIORARI FROM THE FOURTH, EIGHTH, AND SIXTH CIRCUITS
RESPECTIVELY, PRECISELY BECAUSE THE PLANS PROMULGATED BY THE SCHOOL
BOARDS IN THOSE CASES WERE NOT OF STATE-WIDE SCOPE.  SEE ALSO COOPER V.
AARON, 358 U.S. 1 (1958) (ON CERTIORARI TO THE EIGHTH CIRCUIT); GRIFFIN
V. SCHOOL BOARD, 377 U.S. 218 (1964) (ON CERTIORARI TO THE FOURTH
CIRCUIT); BRADLEY V. SCHOOL BOARD, 382 U.S. 103 (1965) (ON CERTIORARI
TO THE FOURTH CIRCUIT); ROGERS V. PAUL, 382 U.S. 198 (1965) (ON
CERTIORARI TO THE EIGHTH CIRCUIT); CF. WATSON V. MEMPHIS, 373 U.S. 526
(1963) (ON CERTIORARI TO THE SIXTH CIRCUIT). 

INDEED, EVEN WHEN THERE IS AN ATTACK ON A STATE-WIDE STATUTE WHICH
REQUIRES RACIAL DISCRIMINATION ON ITS FACE, A THREE-JUDGE COURT NEED
NOT BE CONVOKED IF THE STATUTE IS CLEARLY INVALID UNDER PRE-EXISTING
CASE LAW.  BAILEY V. PATTERSON, 369 U.S. 31 (1962). 

/3/  APPELLANTS THEMSELVES SEEM TO HAVE RECOGNIZED THAT THIS COURT'S
JURISDICTION IS QUESTIONABLE.  THEY FILED A PROTECTIVE APPEAL WITH THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT ON AUGUST 23, 1968.  THAT COURT
IS HOLDING THE APPEAL IN ABEYANCE PENDING OUR DECISION IN THIS CASE. 
SEE JURISDICTIONAL STATEMENT 2, N. 1. 

JACK GREENBERG, JAMES M. NABRIT III, MELVIN ZARR, AND FRED D. GRAY
FOR APPELLANTS. 

MACDONALD GALLION, ATTORNEY GENERAL OF ALABAMA, AND GORDON MADISON,
ASSISTANT ATTORNEY GENERAL, FOR ALABAMA PUBLIC SCHOOL AND COLLEGE
AUTHORITY, AND JAMES J. CARTER FOR MEMBERS OF THE BOARD AND THE BOARD
OF TRUSTEES OF AUBURN UNIVERSITY, APPELLEES. 
..END :







BACKER V. ROCKEFELLER, 393 U.S. 404 


       BACKER V. ROCKEFELLER, GOVERNOR OF NEW YORK. 

     APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

        NO. 852.  DECIDED JANUARY 20, 1969. 


292 F.SUPP.  851, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

JEROME M. KAY FOR APPELLANT. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, RUTH KESSLER TOCH,
SOLICITOR GENERAL, AND JEAN M. COON, ASSISTANT ATTORNEY GENERAL, FOR
APPELLEE. 
..END :








SUTTON V. ADAMS, 393 U.S. 404 


       SUTTON V. ADAMS, SECRETARY OF STATE OF FLORIDA, ET AL.

        APPEAL FROM THE SUPREME COURT OF FLORIDA. 

       NO. 726.  DECIDED JANUARY 20, 1969. 


212 SO.2D 1, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN WOULD NOTE PROBABLE
JURISDICTION AND SET THE CASE FOR ORAL ARGUMENT. 

MILTON E. GRUSMARK FOR APPELLANT. 

EARL FAIRCLOTH, ATTORNEY GENERAL OF FLORIDA, PRO SE, AND ROBERT A.
CHASTAIN AND WILSON W. WRIGHT, ASSISTANT ATTORNEYS GENERAL, FOR
APPELLEES. 
..END :







VALENTI V. ROCKEFELLER, 393 U.S. 405 


       VALENTI V. ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF NEW YORK. 

NO. 773.  DECIDED JANUARY 20, 1969. 


292 F.SUPP.  851, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

JOHN MANNING REGAN FOR APPELLANT. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, RUTH KESSLER TOCH,
SOLICITOR GENERAL, AND JEAN M. COON, ASSISTANT ATTORNEY GENERAL, FOR
APPELLEES. 
..END :







ALASKA V. AFL-CIO, 393 U.S. 405 


       ALASKA ET AL. V. INTERNATIONAL UNION OF OPERATING ENGINEERS,

           LOCAL 302, AFL-CIO, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

      DISTRICT OF ALASKA. 

        NO. 734.  DECIDED JANUARY 20, 1969. 


287 F.SUPP.  589, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

G. KENT EDWARDS, ATTORNEY GENERAL OF ALASKA, AND EDGAR PAUL BOYKO
FOR APPELLANTS. 

J. DUANE VANCE FOR THE INTERNATIONAL UNION OF OPERATING ENGINEERS ET
AL., AND SOLICITOR GENERAL GRISWOLD, ARNOLD ORDMAN, DOMINICK L. MANOLI,
AND NORTON J. COME FOR THE NATIONAL LABOR RELATIONS BOARD, APPELLEES. 
..END :




PHILLIPS V. ROCKEFELLER, 393 U.S. 406 


       PHILLIPS ET AL. V. ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

        NO. 854.  DECIDED JANUARY 20, 1969. 


292 F.SUPP.  851, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

ROBERT L. BOBRICK FOR APPELLANTS. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, RUTH KESSLER TOCH,
SOLICITOR GENERAL, AND JEAN M. COON, ASSISTANT ATTORNEY GENERAL, FOR
APPELLEES. 
..END :







STANDARD FRUIT & STEAMSHIP CO. V. UNITED FRUIT CO., 393 U.S. 406 


       STANDARD FRUIT & STEAMSHIP CO. V. UNITED FRUIT CO. ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF LOUISIANA. 

     NO. 740.  DECIDED JANUARY 20, 1969. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  SHENANDOAH VALLEY BROADCASTING, INC. V. AMERICAN
SOCIETY OF COMPOSERS, AUTHORS & PUBLISHERS, 375 U.S. 39. 

EBERHARD P. DEUTSCH, ROBERT M. MOORE, AND RENE H. HIMEL, JR., FOR
APPELLANT. 

HUGH B. COX AND JAMES H. MCGLOTHLIN FOR UNITED FRUIT CO., AND
SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES, APPELLEES. 
..END :





STAMLER V. WILLIS, 393 U.S. 407 


       STAMLER ET AL. V. WILLIS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS. 

        NO. 478.  DECIDED JANUARY 20, 1969.  /1/ 


REHEARING DENIED; ANTE, P. 217, VACATED; 287 F.SUPP.  734, VACATED
AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A REHEARING IS DENIED.  THE MOTION TO AMEND THE
JUDGMENT ENTERED ON NOVEMBER 25, 1968, DISMISSING THE APPEALS IS
GRANTED.  THE JUDGMENT DISMISSING THE APPEALS IS VACATED AND A NEW
JUDGMENT WILL ISSUE PROVIDING THAT THE JUDGMENT BELOW BE VACATED AND
THE CASES BE REMANDED TO THE DISTRICT COURT SO THAT IT MAY ENTER A
FRESH DECREE FROM WHICH TIMELY APPEALS MAY BE TAKEN TO THE COURT OF
APPEALS. 

/1/  TOGETHER WITH NO. 479, COHEN V. WILLIS ET AL., ALSO ON APPEAL
FROM THE SAME COURT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

ALBERT E. JENNER, JR., THOMAS P. SULLIVAN, AND ARTHUR KINOY FOR
APPELLANTS IN NO. 478 ON THE PETITION FOR REHEARING AND MOTION TO
AMEND.
..END :



















DAHL V. REPUBLICAN STATE COMMITTEE, 393 U.S. 408 


       DAHL ET AL. V. REPUBLICAN STATE COMMITTEE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF WASHINGTON. 

NO. 596.  DECIDED JANUARY 20, 1969. 


VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CAUSE IS
REMANDED IN ORDER THAT THE DISTRICT COURT MAY ENTER A FRESH DECREE FROM
WHICH APPELLANTS MAY, IF THEY WISH, PERFECT A TIMELY APPEAL TO THE
COURT OF APPEALS.  MOODY V. FLOWERS, 387 U.S. 97. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE HARLAN, BELIEVING THAT JURISDICTION LIES IN THIS COURT,
WOULD AFFIRM THE JUDGMENT BELOW. 

ALFRED J. SCHWEPPE FOR APPELLANTS. 

BRADLEY T. JONES FOR APPELLEES. 
..END :























DICKINSON V. FIRST NATIONAL BANK, 393 U.S. 409 


       DICKINSON, COMPTROLLER OF FLORIDA V. FIRST NATIONAL BANK OF

           HOMESTEAD ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF FLORIDA. 

        NO. 741.  DECIDED JANUARY 20, 1969. 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE STEWART IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

EARL FAIRCLOTH, ATTORNEY GENERAL OF FLORIDA, AND FRED M. BURNS AND
LARRY LEVY, ASSISTANT ATTORNEYS GENERAL, FOR APPELLANT. 

O. RALPH MATOUSEK FOR APPELLEE FIRST NATIONAL BANK OF HOMESTEAD. 
..END :






















NLRB V. STRONG, 393 U.S. 357 


       NATIONAL LABOR RELATIONS BOARD V. STRONG, DBA STRONG ROOFING

           & INSULATING CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT. 

        NO. 61.  ARGUED DECEMBER 10, 1968.-- DECIDED JANUARY 15,

           1969. 


A MULTIPLE EMPLOYER BARGAINING ASSOCIATION OF WHICH RESPONDENT WAS
THEN A MEMBER MADE A CONTRACT WITH A UNION FIXING COMPENSATION LEVELS
FOR THE MEMBER FIRMS' EMPLOYEES.  RESPONDENT THEREAFTER SOUGHT TO
WITHDRAW FROM THE ASSOCIATION AND REFUSED TO SIGN THE CONTRACT.  THE
UNION FILED CHARGES WITH THE NATIONAL LABOR RELATIONS BOARD (NLRB),
WHICH FOUND THAT RESPONDENT'S REFUSAL TO SIGN THE CONTRACT CONSTITUTED
UNFAIR LABOR PRACTICES IN VIOLATION OF SECS. 8(A)(5) AND (1) OF THE
NATIONAL LABOR RELATIONS ACT AND ORDERED RESPONDENT TO SIGN THE
CONTRACT, CEASE AND DESIST FROM UNFAIR LABOR PRACTICES, AND PAY ANY
FRINGE BENEFITS PROVIDED FOR BY CONTRACT.  THE COURT OF APPEALS
ENFORCED THE NLRB'S ORDER EXCEPT AS IT PROVIDED FOR THE PAYMENT OF
FRINGE BENEFITS, WHICH IT HELD TO BE "AN ORDER TO RESPONDENT TO CARRY
OUT PROVISIONS OF THE CONTRACT" AND THUS BEYOND THE NLRB'S POWERS. 
HELD:  THE NLRB'S AUTHORITY UNDER THE ACT TO REMEDY THE UNFAIR LABOR
PRACTICE WHICH OCCURRED WHEN RESPONDENT REFUSED TO SIGN THE COLLECTIVE
BARGAINING AGREEMENT NEGOTIATED ON HIS BEHALF INCLUDED THE POWER TO
REQUIRE PAYMENT OF THE FRINGE BENEFITS UNDER THE NLRB'S REMEDIAL
AUTHORITY TO TAKE "AFFIRMATIVE ACTION INCLUDING REINSTATEMENT OF
EMPLOYEES WITH OR WITHOUT BACK PAY," SEC. 10(C), WHICH IS NOT "AFFECTED
BY ANY OTHER MEANS OF ADJUSTMENT . . . ESTABLISHED BY AGREEMENT, LAW,
OR OTHERWISE . . . ," SEC. 10(A).  PP. 358-362. 

386 F.2D 929, REVERSED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE ROOFING CONTRACTORS ASSOCIATION OF SOUTHERN CALIFORNIA, OF WHICH
RESPONDENT WAS THEN A MEMBER, NEGOTIATED A COLLECTIVE BARGAINING
CONTRACT WITH THE ROOFERS UNION /1/  EFFECTIVE AUGUST 15, 1963,
ESTABLISHING COMPENSATION LEVELS FOR THE EMPLOYEES OF MEMBER FIRMS FOR
THE NEXT FOUR YEARS.  ON AUGUST 20, 1963, RESPONDENT SOUGHT TO WITHDRAW
FROM THE MULTIPLE EMPLOYER BARGAINING ASSOCIATION WHICH HAD NEGOTIATED
THIS AGREEMENT.  HE THEN REFUSED REPEATED DEMANDS FROM THE UNION THAT
HE SIGN THE CONTRACT.  AT LENGTH, THE UNION FILED UNFAIR LABOR PRACTICE
CHARGES WITH THE NATIONAL LABOR RELATIONS BOARD, WHICH FOUND THAT
RESPONDENT'S REFUSAL TO SIGN THE CONTRACT WHICH HAD BEEN NEGOTIATED ON
HIS BEHALF BY THE ASSOCIATION WAS A VIOLATION OF SECS. 8(A)(5) AND (1)
OF THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 140-141, AS AMENDED, 29
U.S.C. 158(A)(5) AND (1).  THE BOARD ORDERED RESPONDENT TO SIGN THE
CONTRACT, CEASE AND DESIST FROM UNFAIR LABOR PRACTICES, POST NOTICES,
AND "(PAY TO THE APPROPRIATE SOURCE ANY FRINGE BENEFITS PROVIDED FOR IN
THE ABOVE-DESCRIBED CONTRACT."  152 N.L.R.B. 9, 14 (1965).  THE COURT
OF APPEALS ENFORCED THE BOARD'S ORDER EXCEPT AS IT REQUIRED THE PAYMENT
OF FRINGE BENEFITS.  THAT PART OF THE ORDER, THE COURT OF APPEALS SAID,
"IS AN ORDER TO RESPONDENT TO CARRY OUT PROVISIONS OF THE CONTRACT AND
IS BEYOND THE POWER OF THE BOARD."  386 F.2D 929, 933 (1967).  THE
GOVERNMENT SOUGHT AND WE GRANTED CERTIORARI AS TO THIS HOLDING.  391
U.S. 933 (1968). 

BELIEVING THE REMEDY PROVIDED BY THE BOARD WAS WELL WITHIN ITS
POWERS, WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS.  SECTION 10(C)
OF THE ACT EMPOWERS THE BOARD WHEN IT ADJUDICATES AN UNFAIR LABOR
PRACTICE TO 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, A WILL
EFFECTUATE THE POLICIES OF THIS ACT."  61 STAT. 147, 29 U.S.C. 160(C). 
THIS GRANT OF REMEDIAL POWER IS A BROAD ONE.  IT DOES NOT AUTHORIZE
PUNITIVE MEASURES, BUT "(MAKING THE WORKERS WHOLE FOR LOSSES SUFFERED
ON ACCOUNT OF AN UNFAIR LABOR PRACTICE IS PART OF THE VINDICATION OF
THE PUBLIC POLICY WHICH THE BOARD ENFORCES."  PHELPS DODGE CORP. V.
NLRB, 313 U.S. 177, 197 (1941).  BACK PAY IS ONE OF THE SIMPLER AND
MORE EXPLICITLY AUTHORIZED REMEDIES UTILIZED TO ATTAIN THIS END.  /2/ 

HERE THE UNFAIR LABOR PRACTICE WAS THE FAILURE OF THE EMPLOYER TO
SIGN AND ACKNOWLEDGE THE EXISTENCE OF A COLLECTIVE BARGAINING AGREEMENT
WHICH HAD BEEN NEGOTIATED AND CONCLUDED ON HIS BEHALF.  THERE IS NO
DISPUTE THAT RESPONDENT WITHDREW FROM THE ROOFING CONTRACTORS
ASSOCIATION TOO LATE TO ESCAPE THE BINDING FORCE OF THE AGREEMENT IT
HAD NEGOTIATED FOR HIM, SUPPLANTING PREVIOUS AGREEMENTS WHICH HAD BEEN
NEGOTIATED IN THE SAME WAY.  /3/  NOR, IN LIGHT OF THE OBLIGATION OF AN
EMPLOYER BARGAINING IN GOOD FAITH TO SIGN A CONTRACT REDUCING AGREED
TERMS TO WRITING, H. J. HEINZ CO. V. NLRB, 311 U.S. 514, 524-526
(1941), IS IT ARGUED THAT RESPONDENT'S FAILURE TO SIGN THE AGREEMENT
WAS NOT AN UNFAIR LABOR PRACTICE.  THE JUDGMENT OF THE BOARD IN THESE
RESPECTS IS NOT NOW CHALLENGED.  THE REMEDY ORDERED BY THE BOARD
INCLUDED A DIRECTION TO PAY THE FRINGE BENEFITS WHICH WOULD HAVE BEEN
PAID HAD THE EMPLOYER SIGNED THE AGREEMENT AND THEREBY RECOGNIZED HIS
LEGAL OBLIGATIONS WHICH HAD MATURED DURING THE COLLECTIVE BARGAINING
PROCESS.  THIS IS NO MORE THAN THE ACT AND CASES LIKE PHELPS DODGE
PLAINLY AUTHORIZE. 

THE CHALLENGE OF THE EMPLOYER, IN BRIEF, IS THAT ORDERING THE
PAYMENT OF FRINGE BENEFITS RESERVED IN THE CONTRACT INSERTS THE BOARD
INTO THE ENFORCEMENT OF THE COLLECTIVE BARGAINING AGREEMENT, CONTRARY
TO THE POLICY AND SCHEME OF THE STATUTE.  /4/  ADMITTEDLY, THE BOARD
HAS NO PLENARY AUTHORITY TO ADMINISTER AND ENFORCE COLLECTIVE
BARGAINING CONTRACTS.  THOSE AGREEMENTS ARE NORMALLY ENFORCED AS AGREED
UPON BY THE PARTIES, USUALLY THROUGH GRIEVANCE AND ARBITRATION
PROCEDURES, AND ULTIMATELY BY THE COURTS.  BUT THE BUSINESS OF THE
BOARD, AMONG OTHER THINGS, IS TO ADJUDICATE AND REMEDY UNFAIR LABOR
PRACTICES.  ITS AUTHORITY TO DO SO IS NOT "AFFECTED BY ANY OTHER MEANS
OF ADJUSTMENT OR PREVENTION THAT HAS BEEN OR MAY BE ESTABLISHED BY
AGREEMENT, LAW, OR OTHERWISE.  . . . "  SEC. 10(A), 61 STAT. 146, 29
U.S.C. 160(A).  HENCE, IT HAS BEEN MADE CLEAR THAT IN SOME
CIRCUMSTANCES THE AUTHORITY OF THE BOARD AND THE LAW OF THE CONTRACT
ARE OVERLAPPING, CONCURRENT REGIMES, NEITHER PRE-EMPTING THE OTHER. 
NLRB V. C & C PLYWOOD CORP., 385 U.S. 421 (1967); CAREY V. WESTINGHOUSE
ELECTRIC CORP., 375 U.S. 261, 268 (1964); SMITH V. EVENING NEWS ASSN.,
371 U.S. 195, 197-198 (1962); TEAMSTERS LOCAL 174 V. LUCAS FLOUR CO.,
369 U.S. 95, 101, N. 9 (1962).  ARBITRATORS AND COURTS ARE STILL THE
PRINCIPAL SOURCES OF CONTRACT INTERPRETATION, /5/  BUT THE BOARD MAY
PROSCRIBE CONDUCT WHICH IS AN UNFAIR LABOR PRACTICE EVEN THOUGH IT IS
ALSO A BREACH OF CONTRACT REMEDIABLE AS SUCH BY ARBITRATION AND IN THE
COURTS.  SMITH V. EVENING NEWS ASSN., 371 U.S. 195, 197-198 (1962).  IT
MAY ALSO, IF NECESSARY TO ADJUDICATE AN UNFAIR LABOR PRACTICE,
INTERPRET AND GIVE EFFECT TO THE TERMS OF A COLLECTIVE BARGAINING
CONTRACT.  NLRB V. C & C PLYWOOD CORP., 385 U.S. 421 (1967). 

BEARING MORE PRECISELY ON THIS CASE, THE BOARD IS EXPRESSLY INVITED
BY THE ACT TO DETERMINE WHETHER AN EMPLOYER HAS REFUSED TO BARGAIN IN
GOOD FAITH AND THEREBY VIOLATED SEC. 8(A)(5) BY RESISTING "THE
EXECUTION OF A WRITTEN CONTRACT INCORPORATING ANY AGREEMENT REACHED IF
REQUESTED BY EITHER PARTY.  . . . "  SEC. 8(D), 61 STAT. 142, 29 U.S.C.
158(D); H. J. HEINZ CO. V. NLRB, 311 U.S. 514, 524-526 (1941).  THE
BOARD IS NOT TRESPASSING ON FORBIDDEN TERRITORY WHEN IT INQUIRES
WHETHER NEGOTIATIONS HAVE PRODUCED A BARGAIN WHICH THE EMPLOYER HAS
REFUSED TO SIGN AND HONOR, PARTICULARLY WHEN THE EMPLOYER HAS REFUSED
TO RECOGNIZE THE VERY EXISTENCE OF THE CONTRACT PROVIDING FOR THE
ARBITRATION ON WHICH HE NOW INSISTS.  TO THIS EXTENT THE COLLECTIVE
CONTRACT IS THE BOARD'S AFFAIR, AND AN EFFECTIVE REMEDY FOR REFUSAL TO
SIGN IS ITS PROPER BUSINESS. 

FIRING AN EMPLOYEE FOR UNION MEMBERSHIP MAY BE A BREACH OF CONTRACT
OPEN TO ARBITRATION, BUT WHETHER IT IS OR NOT, IT IS ALSO AN UNFAIR
LABOR PRACTICE WHICH MAY BE REMEDIED BY REINSTATEMENT WITH BACK PAY
UNDER SEC. 10(C) EVEN THOUGH THE BOARD'S ORDER MANDATES THE VERY
COMPENSATION RESERVED BY THE CONTRACT.  CF. NLRB V. GREAT DANE
TRAILERS, INC., 388 U.S. 26 (1967); MASTRO PLASTICS CORP. V. NLRB, 350
U.S. 270 (1956); WALLACE CORP. V. NLRB, 323 U.S. 248 (1944). 

THE CASE BEFORE US IS LITTLE, IF ANY, DIFFERENT.  THE ACT OF
REFUSING TO SIGN THE COLLECTIVE BARGAINING AGREEMENT MAY NOT HAVE BEEN
A BREACH OF CONTRACT, BUT IT WAS AN UNFAIR PRACTICE.  ONCE ADJUDICATED,
IT COULD BE REMEDIED BY A BOARD ORDER REQUIRING PAYMENT OF THOSE FRINGE
BENEFITS WHICH WOULD HAVE BEEN PAID HAD THE EMPLOYER SIGNED AND
ACKNOWLEDGED THE CONTRACT WHICH HAD BEEN DULY NEGOTIATED ON HIS
BEHALF.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

              IT IS SO ORDERED. 

/1/  ROOFERS LOCAL 36, UNITED SLATE, TILE AND COMPOSITION ROOFERS,
DAMP AND WATERPROOF WORKERS ASSOCIATION. 

/2/  SEE GENERALLY NATHANSON V. NLRB, 344 U.S. 25, 29-30 (1952);
NOTE, A SURVEY OF LABOR REMEDIES, 54 VA.L.REV.  38, 41-95 (1968). 

/3/  RESPONDENT IS A PAST PRESIDENT OF THE ASSOCIATION, AND THUS WAS
FAMILIAR WITH ITS BYLAW THAT A "LABOR CONTRACT NEGOTIATED BY THE
COMMITTEE SHALL BE BINDING UPON THE REGULAR MEMBERS OF THIS ASSOCIATION
SEPARATELY AND COLLECTIVELY.  . . . " 

/4/  THE FACT THAT THE PAYMENTS IN QUESTION HERE DID NOT CONSTITUTE
DIRECT PAY TO THE EMPLOYEES IS IRRELEVANT IN OUR VIEW OF THIS CASE. 
WHETHER THE PAYMENTS WERE MADE TO THE EMPLOYEES, WHO THEN CONTRIBUTED
THEM TO UNION TRUST FUNDS IN THE FORM OF HIGHER UNION DUES, OR WHETHER
AS HERE THEY PASSED STRAIGHT FROM THE EMPLOYER TO THE TRUST FUNDS, THE
FINAL RESULT IS THE SAME.  AND IT IS JUST AS MUCH IN THE INTEREST OF
"EFFECTUATING) THE POLICIES OF THIS ACT," AND OF MAKING THE EMPLOYEES
WHOLE, TO REQUIRE THE PAYMENTS IN EITHER CASE. 

/5/  STEELWORKERS TRILOGY, 363 U.S. 564, 574, 593 (1960).  CONGRESS
ESTABLISHED THE JUDICIAL REMEDY OF SEC. 301 OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, 61 STAT. 156, 29 U.S.C. 185, IN LIEU OF A PROPOSAL
TO MAKE BREACH OF A COLLECTIVE BARGAINING AGREEMENT ITSELF AN UNFAIR
LABOR PRACTICE.  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., 41
42.  THE HOUSE CONFERENCE REPORT ASSERTS THAT "(ONCE PARTIES HAVE MADE
A COLLECTIVE BARGAINING CONTRACT THE ENFORCEMENT OF THAT CONTRACT
SHOULD BE LEFT TO THE USUAL PROCESSES OF THE LAW AND NOT TO THE
NATIONAL LABOR RELATIONS BOARD," ID., AT 42.  SEE TEXTILE WORKERS V.
LINCOLN MILLS, 353 U.S. 448, 452 (1957).  CF. LMRA SEC. 201, 61 STAT.
152, 29 U.S.C. 171. 

MR. JUSTICE BLACK CONCURS IN THE REVERSAL OF THE COURT OF APPEALS'
JUDGMENT, BUT HE WOULD DIRECT THAT THE CAUSE BE REMANDED TO THE BOARD
FOR IT TO DETERMINE WHETHER TO SUBMIT THE CASE TO ARBITRATION IN ACCORD
WITH THE CONTRACT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THERE IS A SURFACE LOGIC IN WHAT THE COURT DOES TODAY:  IF THE BOARD
MAY AWARD BACK PAY (WHICH IS COMPUTED FROM THE COLLECTIVE BARGAINING
AGREEMENT), IT SHOULD BE ALLOWED TO AWARD FRINGE BENEFITS, WHOSE
CHARACTER AND AMOUNT ARE ALSO DETERMINED BY THE COLLECTIVE BARGAINING
AGREEMENT.  AN AWARD OF BACK PAY, HOWEVER, IS AN EXPRESS PART OF THE
LEGISLATIVE GRANT OF AUTHORITY, /1/  WHILE THE AWARD OF FRINGE BENEFITS
IS NOT.  THAT IS, OF COURSE, NOT A COMPLETE ANSWER, FOR CONGRESS DID
NOT MAKE AN EXHAUSTIVE CATALOGUE OF DEVICES USED TO THWART THE ACT, BUT
LARGELY LEFT TO THE BOARD "THE RELATION OF REMEDY TO POLICY."  SEE
PHELPS DODGE CORP. V. NLRB, 313 U.S. 177, 194. 

WHAT DISTINGUISHES THE PRESENT CASE IS THE FACT THAT FRINGE BENEFITS
ARE NOT PRODUCTS OF A COMPUTER BUT OF AN ARBITRAL PROCESS TO WHICH
CONGRESS HAS GIVEN STRONG SUPPORT.  /2/  SEE TEXTILE WORKERS V. LINCOLN
MILLS, 353 U.S. 448. 

THE PROVISION FOR ARBITRATION IS IN A SENSE COMPETITIVE WITH THE
PROVISION EMPOWERING THE BOARD TO REMEDY AN UNFAIR LABOR PRACTICE.  IT
IS INDEED AN INTEGRAL PART OF THE COLLECTIVE AGREEMENT PROVIDING A
PROCEDURE SUI GENERIS FOR RESOLVING GRIEVANCES THAT ARISE. 

THERE WERE PROPOSALS, AS WE NOTED IN DOWD BOX CO. V. COURTNEY, 368
U.S. 502, 510-511, TO MAKE A BREACH OF A COLLECTIVE BARGAINING
AGREEMENT AN UNFAIR LABOR PRACTICE SUBJECT TO THE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD.  BUT THOSE PROPOSALS NEVER GAINED THE
NECESSARY SUPPORT, CONGRESS DECIDING THAT "(ONCE PARTIES HAVE MADE A
COLLECTIVE BARGAINING CONTRACT THE ENFORCEMENT OF THAT CONTRACT SHOULD
BE LEFT TO THE USUAL PROCESSES OF THE LAW AND NOT TO THE NATIONAL LABOR
RELATIONS BOARD."  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., 42,
QUOTED IN DOWD BOX CO. V. COURTNEY, SUPRA, AT 511.  IT IS THAT POLICY
THAT IS REFLECTED IN SEC. 301 OF THE LABOR MANAGEMENT RELATIONS ACT,
1947, WHICH WAS BEFORE US IN LINCOLN MILLS, 353 U.S.,AT 452.  THAT
POLICY WAS TO EXCHANGE AN AGREEMENT TO ARBITRATE GRIEVANCE DISPUTES FOR
A NO-STRIKE AGREEMENT.  ID., AT 455. 

ARBITRATION IS NOT A PROCESS WHICH THE BOARD IS EITHER EQUIPPED OR
QUALIFIED TO FOLLOW.  THOSE WHO ARE ARBITERS HAVE SPECIAL
QUALIFICATIONS IN A PARTICULAR INDUSTRY AND COME TO KNOW THE COMMON LAW
OF THE SHOP.  /3/ 

THE JURISDICTION OF ANY AGENCY OR BRANCH OF GOVERNMENT HAS A BUILT
IN IMPETUS FOR GROWTH AND EXPANSION.  SELDOM DOES A DEPARTMENT RESTRICT
ITS POWERS NARROWLY AND ASSUME A SELF-DENYING ATTITUDE.  THE TENDENCY
IS TO CONSTRUE EXPRESS POWERS BROADLY.  THE ORGANISM GROWS BY SUBTLE
AND LITTLE-NOTICED EXTENSIONS OF AUTHORITY.  TO STUDENTS OF GOVERNMENT
THIS PHENOMENON IS AS PREDICTABLE AS THE OPERATION OF OTHER SO-CALLED
"LAWS."  /4/ 

COURTS ARE NO EXCEPTION; AND PART OF THEIR TENDENCY TO FIND EASY
EXTENSIONS OF THEIR AUTHORITY WAS SEEN IN THEIR EARLY CONTEST WITH
ADMINISTRATIVE AGENCIES.  SEE UNITED STATES V. MORGAN, 307 U.S. 183,
191.  RECENT EXAMPLES EXIST IN THIS VERY FIELD OF ARBITRATION WITH
WHICH WE ARE CONCERNED HERE.  WE NOTED IN STEELWORKERS V. WARRIOR &
GULF CO., 363 U.S. 574, HOW SOME COURTS WERE BEING ENTICED TO CONSTRUE
ARBITRATION CLAUSES AS PERMITTING OR NOT PERMITTING ARBITRATION OF
CERTAIN KINDS OF DISPUTES AND THEN BECOMING ENTANGLED IN THE ARBITRAL
PROCESS, THOUGH IT WAS FOR THE ARBITERS, NOT FOR THEM.  ID., AT 585. 
WE RELEGATED THE COURTS TO THEIR NARROW FIELD, LEAVING ARBITRATION TO
THE NEW EXPERTISE.  /5/ 

AN ARBITER IS NOT OF COURSE FREE "TO DISPENSE HIS OWN BRAND OF
INDUSTRIAL JUSTICE" BUT IS ADMONISHED "TO REACH A FAIR SOLUTION OF A
PROBLEM" WITHIN THE LETTER AND SPIRIT OF THE COLLECTIVE BARGAINING
AGREEMENT.  STEELWORKERS V. ENTERPRISE CORP., 363 U.S. 593, 597.  THE
PAST PRACTICES OF THE PARTIES, AS WELL AS THE CONTRACTUAL PROVISIONS
THEMSELVES, ARE THE GUIDELINES.  /6/  LOCAL 77 V. PHILADELPHIA
ORCHESTRA, 252 F.SUPP.  787.  THE AGREEMENT TO ARBITRATE IS, MOREOVER,
MORE THAN A CONTRACT; IT IS A GENERALIZED CODE THAT IS UNDERSTOOD ONLY
IN LIGHT OF THE "'COMMON LAW OF THE SHOP WHICH IMPLEMENTS AND FURNISHES
THE CONTEXT OF THE AGREEMENT.'"  STEELWORKERS V. WARRIOR & GULF CO.,
SUPRA, AT 580.  IT IS SOMETIMES CALLED "A COOPERATIVE EFFORT BY THE
PARTIES AND THE ARBITRATOR TO DEVELOP A WORKABLE SOLUTION TO THE
PROBLEM."  /7/  THERE IS A MORE JAUNDICED VIEW.  JUDGE HAYS, WHO HAS
HAD CONSIDERABLE EXPERIENCE IN THE FIELD, HAS STATED: 

     "A PROPORTION OF ARBITRATION AWARDS . . . ARE DECIDED NOT ON

  THE BASIS OF THE EVIDENCE OR OF THE CONTRACT OR OTHER PROPER

  CONSIDERATIONS, BUT IN A WAY WHICH IN THE ARBITRATOR'S OPINION

  MAKES IT LIKELY THAT HE WILL BE HIRED FOR OTHER ARBITRATION

  CASES."  P. HAYS, LABOR ARBITRATION:  A DISSENTING VIEW 112

  (1966).  /8/ 

WHATEVER VIEW OF THE PROCESS MAY BE TAKEN, IT IS CLEAR THAT
DETERMINING FRINGE BENEFITS UNDER A COLLECTIVE BARGAINING AGREEMENT IS
NO JOB FOR A COMPUTER.  BUT IT CAN BE HARDLY MORE THAN THAT WHEN THE
LABOR BOARD MAKES ITS COMPUTATIONS FOR INSERTION IN THE REMEDIAL
ORDER. 

WHAT THE "COMMON LAW" OF THE SHOP WOULD SHOW COVERING THESE FRINGE
BENEFITS, WHAT "PAST PRACTICES" MIGHT REFLECT ON THE AMOUNT OF AN
AWARD, WHAT "A FAIR SOLUTION" OF THE PROBLEM MIGHT SEEM TO BE IN AN
ARIBTRATION FRAME OF REFERENCE, NO ONE KNOWS.  THESE ARE MATTERS FOR
ARBITERS, CHOSEN BY THE PARTIES UNDER THE COLLECTIVE BARGAINING
AGREEMENT, NOT FOR THE BOARD, AS ALIEN TO THE SYSTEM ENVISIONED BY
LINCOLN MILLS. 

/1/  SEC. 10(C) OF THE ACT AUTHORIZES THE BOARD, WHEN IT FINDS AN
UNFAIR LABOR PRACTICE, TO 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." 

/2/  SEE, E.G., AARON, "ON FIRST LOOKING INTO THE LINCOLN MILLS
DECISION," IN ARBITRATION AND THE LAW (PROCEEDINGS, NATIONAL ACADEMY OF
ARBITRATORS) (J. MCKELVEY ED. 1959); BICKEL & WELLINGTON, LEGISLATIVE
PURPOSE AND THE JUDICIAL PROCESS:  THE LINCOLN MILLS CASE, 71
HARV.L.REV.  1 (1957); BUNN, LINCOLN MILLS AND THE JURISDICTION TO
ENFORCE COLLECTIVE BARGAINING AGREEMENTS, 43 VA.L.REV.  1247 (1957);
COX, REFLECTIONS UPON LABOR ARBITRATION, 72 HARV.L.REV.  1482 (1959);
COX, THE LEGAL NATURE OF COLLECTIVE BARGAINING AGREEMENTS, 57
MICH.L.REV.  1 (1958); FEINSINGER, ENFORCEMENT OF LABOR AGREEMENTS-- A
NEW ERA IN COLLECTIVE BARGAINING, 43 VA.L.REV.  1261 (1957); GREGORY,
THE LAW OF THE COLLECTIVE AGREEMENT, 57 MICH.L.REV.  635 (1959);
JENKINS, THE IMPACT OF LINCOLN MILLS ON THE NATIONAL LABOR RELATIONS
BOARD, 6 U.C.L.A.L.REV.  355 (1959). 

/3/  SEE, E.G., CHRISTENSEN, ARBITRATION, SECTION 301, AND THE
NATIONAL LABOR RELATIONS ACT, 37 N.Y.U.L.REV.  411 (1962); KOVARSKY,
LABOR ARBITRATION AND FEDERAL PRE-EMPTION:  THE OVERRULING OF BLACK V.
CUTTER LABORATORIES, 47 MINN.L.REV.  531 (1963); SMITH & JONES, THE
IMPACT OF THE EMERGING FEDERAL LAW OF GRIEVANCE ARBITRATION ON JUDGES,
ARBITRATORS, AND PARTIES, 52 VA.L.REV.  831 (1966); SMITH & JONES, THE
SUPREME COURT AND LABOR DISPUTE ARBITRATION:  THE EMERGING FEDERAL LAW,
63 MICH.L.REV.  751 (1965); COMMENT, COMMON LAW OF GRIEVANCE
ARBITRATION:  NEW WINE IN OLD BOTTLES?, 58 NW.U.L.REV.  494 (1963). 

/4/  C. N. PARKINSON, PARKINSON'S LAW (1957). 

/5/  SEE AARON, ARBITRATION IN THE FEDERAL COURTS:  AFTERMATH OF THE
TRILOGY, 9 U.C.L.A.L.REV.  360 (1962); DAVEY, THE SUPREME COURT AND
ARBITRATION:  THE MUSINGS OF AN ARBITRATOR, 36 NOTRE DAME LAW, 138
(1961); FLEMING, SOME OBSERVATIONS ON CONTRACT GRIEVANCES BEFORE COURTS
AND ARBITRATORS, 15 STAN.L.REV.  595 (1963); GREGORY, ENFORCEMENT OF
COLLECTIVE AGREEMENTS BY ARBITRATION, 48 VA.L.REV.  883 (1962); JONES,
THE NAME OF THE GAME IS DECISION-- SOME REFLECTIONS ON "ARBITRABILITY"
AND "AUTHORITY" IN LABOR ARBITRATION, 46 TEXAS L.REV.  865 (1968);
MAYER, LABOR RELATIONS, 1961:  THE STEELWORKERS CASES RE-EXAMINED, 13
LAB.L.J. 213 (1962); MELTZER, THE SUPREME COURT, ARBITRABILITY AND
COLLECTIVE BARGAINING, 28 U.CHI.L.REV.  464 (1961); JONES & SMITH,
MANAGEMENT AND LABOR APPRAISALS AND CRITICISMS OF THE ARBITRATION
PROCESS:  A REPORT WITH COMMENTS, 62 MICH.L.REV.  1115 (1964). 

/6/  SEE TREECE, PAST PRACTICE AND ITS RELATIONSHIP TO SPECIFIC
CONTRACT LANGUAGE IN THE ARBITRATION OF GRIEVANCE DISPUTES, 40
U.COLO.L.REV.  358, 360 ET SEQ. (1968).  DOMKE, ARBITRATION, 36
N.Y.U.L.REV.  545 (1961); FLEMING, RELFECTIONS ON THE NATURE OF LABOR
ARBITRATION, 61 MICH.L.REV.  1245 (1963). 

/7/  AARON, JUDICIAL INTERVENTION IN LABOR ARBITRATION, 20
STAN.L.REV.  41, 55 (1967). 

/8/  BUT SEE MELTZER, RUMINATIONS ABOUT IDEOLOGY, LAW, AND LABOR
ARBITRATION, 34 U.CHI.L.REV.  545 (1967). 

HARRIS WEINSTEIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ARNOLD ORDMAN, DOMINICK L.
MANOLI, AND NORTON J. COME. 

CHARLES G. BAKALY, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM
ON THE BRIEF WAS WILLIAM B. CARMAN. 
..END :






















GLOVER V. ST. LOUIS-S.F.R. CO., 393 U.S. 324 


       GLOVER ET AL. V. ST. LOUIS-SAN FRANCISCO RAILWAY CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 38.  ARGUED NOVEMBER 14, 1968.-- DECIDED JANUARY 14,

     1969. 


PETITIONERS, A GROUP OF NEGROES AND WHITES EMPLOYED AS CARMEN HELPERS
BY RESPONDENT RAILROAD, BROUGHT THIS ACTION FOR DAMAGES AND INJUNCTIVE
RELIEF AGAINST THE RAILROAD AND RESPONDENT UNION (THE BARGAINING AGENT
FOR CARMEN EMPLOYEES), CLAIMING THAT RESPONDENTS ACTED IN CONCERT TO
BAR NEGROES FROM PROMOTION WHOLLY BECAUSE OF RACE.  UPHOLDING
RESPONDENTS' CONTENTION THAT PETITIONERS HAD FAILED TO EXHAUST THEIR
CONTRACTUAL OR ADMINISTRATIVE REMEDIES, THE DISTRICT COURT DISMISSED
THE AMENDED COMPLAINT, DESPITE PETITIONERS' ALLEGATIONS THAT A FORMAL
EFFORT TO PURSUE SUCH REMEDIES WOULD BE ABSOLUTELY FUTILE.  THE COURT
OF APPEALS AFFIRMED.  HELD: 

1.  THE FEDERAL COURTS HAVE JURISDICTION OVER THIS ACTION WHICH
ESSENTIALLY INVOLVES A DISPUTE BETWEEN SOME EMPLOYEES, ON THE ONE HAND,
AND UNION AND MANAGEMENT TOGETHER, ON THE OTHER, AND NOT A DISPUTE
BETWEEN EMPLOYEES AND A CARRIER CONCERNING THE MEANING OF THE TERMS OF
A COLLECTIVE BARGAINING AGREEMENT, OVER WHICH THE RAILROAD ADJUSTMENT
BOARD WOULD HAVE EXCLUSIVE JURISDICTION UNDER THE RAILWAY LABOR ACT. 
PP. 328-329. 

2.  IN THIS CASE WHERE RESORT TO CONTRACTUAL OR ADMINISTRATIVE
REMEDIES WOULD BE WHOLLY FRUITLESS, PETITIONERS' FAILURE TO EXHAUST
SUCH REMEDIES CONSTITUTES NO BAR TO JUDICIAL REVIEW OF THEIR CLAIMS. 
PP. 329-331. 

386 F.2D 452, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE 13 PETITIONERS HERE, EIGHT NEGROES AND FIVE WHITE MEN, ARE ALL
EMPLOYEES OF THE RESPONDENT RAILROAD, WHOSE DUTIES ARE TO REPAIR AND
MAINTAIN PASSENGER AND FREIGHT CARS IN THE RAILROAD'S YARD AT
BIRMINGHAM, ALABAMA.  THEY BROUGHT THIS ACTION IN THE UNITED STATES
DISTRICT COURT AGAINST THE RAILROAD AND THE BROTHERHOOD OF RAILWAY
CARMEN OF AMERICA, WHICH IS THE DULY SELECTED BARGAINING AGENT FOR
CARMEN EMPLOYEES.  THE COMPLAINT ALLEGED THAT ALL OF THE PLAINTIFFS
WERE QUALIFIED BY EXPERIENCE TO DO THE WORK OF CARMEN BUT THAT ALL HAD
BEEN CLASSIFIED AS CARMEN HELPERS FOR MANY YEARS AND HAD NOT BEEN
PROMOTED.  THE COMPLAINT WENT ON TO ALLEGE THE FOLLOWING EXPLANATION
FOR THE RAILROAD'S REFUSAL TO PROMOTE THEM: 

     "IN ORDER TO AVOID CALLING OUT NEGRO PLAINTIFFS TO WORK AS

  CARMEN AND TO AVOID PROMOTING NEGRO PLAINTIFFS TO CARMEN, IN

  ACCORDANCE WITH A TACIT UNDERSTANDING BETWEEN DEFENDANTS AND A

  SUBROSA AGREEMENT BETWEEN THE FRISCO AND CERTAIN OFFICIALS OF THE

  BROTHERHOOD, DEFENDANT FRISCO HAS FOR A CONSIDERABLE PERIOD OF

 TIME USED SO-CALLED 'APPRENTICES' TO DO THE WORK OF CARMEN

  INSTEAD OF CALLING OUT PLAINTIFFS TO DO SAID WORK AS REQUIRED BY

  THE COLLECTIVE BARGAINING AGREEMENT AS PROPERLY AND CUSTOMARILY

  INTERPRETED; AND THE FRISCO HAS USED THIS MEANS TO AVOID GIVING

  PLAINTIFFS WORK AT CARMEN WAGE SCALE AND PERMANENT JOBS IN THE

  CLASSIFICATION OF CARMEN.  THIS DENIAL TO PLAINTIFFS OF WORK AS

  CARMEN HAS BEEN CONTRARY TO PREVIOUS CUSTOM AND PRACTICE BY

  DEFENDANTS IN REGARD TO SENIORITY AS FAR AS 'UPGRADE CARMEN' ARE

  CONCERNED.  DEFENDANT FRISCO IS NOT CALLING ANY OF PLAINTIFFS TO

  WORK AS CARMEN IN ORDER TO AVOID HAVING TO PROMOTE ANY NEGROES TO

  CARMEN." 

THE COMPLAINT ALSO CLAIMED THAT EACH PLAINTIFF HAD LOST IN EXCESS OF
$10,000 IN WAGES AS THE RESULT OF BEING A VICTIM OF "AN INVIDIOUS
RACIAL DISCRIMINATION," AND PRAYED FOR INDIVIDUAL DAMAGES, FOR AN
INJUNCTION TO CAUSE THE DEFENDANTS TO CEASE AND DESIST FROM THEIR
DISCRIMINATION AGAINST PETITIONERS AND THEIR CLASS AND "FOR ANY
FURTHER, OR DIFFERENT RELIEF AS MAY BE MEET AND PROPER.  . . . "  THE
RESPONDENTS MOVED TO DISMISS THE COMPLAINT ON THE GROUND, AMONG OTHERS,
THAT PETITIONERS HAD NOT EXHAUSTED THE ADMINISTRATIVE REMEDIES PROVIDED
FOR THEM BY THE GRIEVANCE MACHINERY IN THE COLLECTIVE BARGAINING
AGREEMENT, IN THE CONSTITUTION OF THE BROTHERHOOD, AND BEFORE THE
NATIONAL RAILROAD ADJUSTMENT BOARD.  THE DISTRICT COURT, IN AN
UNREPORTED OPINION, SUSTAINED THE MOTION TO DISMISS, AND THE
PETITIONERS THEN FILED THE FOLLOWING AMENDMENT TO THEIR COMPLAINT: 

     "ON MANY OCCASIONS THE NEGRO PLAINTIFFS THROUGH ONE OR MORE OF

  THEIR NUMBER, HAVE COMPLAINED BOTH TO REPRESENTATIVES OF THE

  BROTHERHOOD AND TO REPRESENTATIVES OF THE COMPANY ABOUT THE

  FOREGOING DISCRIMINATION AND VIOLATION OF THE COLLECTIVE

  BARGAINING AGREEMENT.  SAID NEGRO PLAINTIFFS HAVE ALSO CALLED

  UPON THE BROTHERHOOD TO PROCESS A GRIEVANCE ON THEIR BEHALF WITH

  THE COMPANY UNDER THE MACHINERY PROVIDED BY THE COLLECTIVE

  BARGAINING AGREEMENT.  ALTHOUGH A REPRESENTATIVE OF THE

  BROTHERHOOD ONCE INDICATED TO THE NEGRO PLAINTIFFS THAT THE

  BROTHERHOOD WOULD 'INVESTIGATE THE SITUATION,' NOTHING CONCRETE

  WAS EVER DONE BY THE BROTHERHOOD AND NO GRIEVANCE WAS EVER

  FILED.  OTHER REPRESENTATIVES OF THE BROTHERHOOD TOLD THE NEGRO

  PLAINTIFFS TIME AND TIME AGAIN:  (A) THAT THEY WERE KIDDING

  THEMSELVES IF THEY THOUGHT THEY COULD EVER GET WHITE MEN'S JOBS;

  (B) THAT NOTHING WOULD EVER BE DONE FOR THEM; AND (C) THAT TO

  FILE A FORMAL COMPLAINT WITH THE BROTHERHOOD OR WITH THE COMPANY

  WOULD BE A WASTE OF THEIR TIME.  THEY WERE TOLD THE SAME THINGS

  BY LOCAL REPRESENTATIVES OF THE COMPANY.  THEY WERE TREATED WITH

CONDESCENSION BY BOTH BROTHERHOOD AND COMPANY, SOMETIMES LAUGHED

  AT AND SOMETIMES 'CUSSED,' BUT NEVER TAKEN SERIOUSLY.  WHEN THE

  WHITE PLAINTIFFS BROUGHT THEIR PLIGHT TO THE ATTENTION OF THE

  BROTHERHOOD, THEY GOT SUBSTANTIALLY THE SAME TREATMENT WHICH THE

  NEGRO PLAINTIFFS RECEIVED, EXCEPT THAT THEY WERE CALLED 'NIGGER

  LOVERS' AND WERE TOLD THAT THEY WERE JUST INVITING TROUBLE.  BOTH

  DEFENDANTS ATTEMPTED TO INTIMIDATE PLAINTIFFS, NEGRO AND WHITE. 

  PLAINTIFFS HAVE BEEN COMPLETELY FRUSTRATED IN THEIR EFFORTS TO

PRESENT THEIR GRIEVANCE EITHER TO THE BROTHERHOOD OR TO THE

  COMPANY.  IN ADDITION, TO EMPLOY THE PURPORTED INTERNAL COMPLAINT

  MACHINERY WITHIN THE BROTHERHOOD ITSELF WOULD ONLY ADD TO

  PLAINTFFS'  FRUSTRATION AND, IF EVER POSSIBLE TO PURSUE IT TO A

  FINAL CONCLUSION IT WOULD TAKE YEARS.  TO PROCESS A GRIEVANCE

  WITH THE COMPANY WITHOUT THE COOPERATION OF THE BROTHERHOOD WOULD

  BE A USELESS FORMALITY.  TO TAKE THE GRIEVANCE BEFORE THE

  NATIONAL RAILROAD ADJUSTMENT BOARD (A TRIBUNAL COMPOSED OF PAID

  REPRESENTATIVES FROM THE COMPANIES AND THE BROTHERHOODS) WOULD

  CONSUME AN AVERAGE TIME OF FIVE YEARS, AND WOULD BE COMPLETELY

 FUTILE UNDER THE INSTANT CIRCUMSTANCES WHERE THE COMPANY AND THE

  BROTHERHOOD ARE WORKING 'HAND-IN-GLOVE.'  ALL OF THESE PURPORTED

  ADMINISTRATIVE REMEDIES ARE WHOLLY INADEQUATE, AND TO REQUIRE

  THEIR COMPLETE EXHAUSTION WOULD SIMPLY ADD TO PLAINTIFFS' EXPENSE

  AND FRUSTRATION, WOULD EXHAUST PLAINTIFFS, AND WOULD AMOUNT TO A

  DENIAL OF 'DUE PROCESS OF LAW,' PROHIBITED BY THE CONSTITUTION OF

  THE UNITED STATES." 

THE DISTRICT COURT AGAIN SUSTAINED THE MOTION TO DISMISS.  THE COURT OF
APPEALS AFFIRMED THE DISMISSAL, AGREEING WITH THE OPINION OF THE
DISTRICT COURT AND ADDING SEVERAL AUTHORITIES TO THOSE CITED BY THE
DISTRICT COURT, 386 F.2D 452 (C.A. 5TH CIR. 1967), AND WE GRANTED
CERTIORARI, 390 U.S. 1023 (1968).  WE THINK THAT NONE OF THE
AUTHORITIES CITED IN EITHER OPINION JUSTIFY THE DISMISSAL AND REVERSE
AND REMAND THE CASE FOR TRIAL IN THE DISTRICT COURT. 

IT IS TRUE, AS THE RESPONDENTS HERE CONTEND, THAT THIS COURT HAS
HELD THAT THE RAILROAD ADJUSTMENT BOARD HAS EXCLUSIVE JURISDICTION,
UNDER SEC. 3 FIRST (I) OF THE RAILWAY LABOR ACT, SET OUT BELOW, /1/  TO
INTERPRET THE MEANING OF THE TERMS OF A COLLECTIVE BARGAINING
AGREEMENT.  /2/  WE HAVE HELD, HOWEVER, THAT SEC. 3 FIRST (I) BY ITS
OWN TERMS APPLIES ONLY TO "DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF
EMPLOYEES AND A CARRIER OR CARRIERS."  CONLEY V. GIBSON, 355 U.S. 41,
44 (1957).  IN CONLEY, AS IN THE PRESENT CASE, THE SUIT WAS ONE BROUGHT
BY THE EMPLOYEES AGAINST THEIR OWN UNION, CLAIMING BREACH OF THE DUTY
OF FAIR REPRESENTATION, AND WE HELD THAT THE JURISDICTION OF THE
FEDERAL COURTS WAS CLEAR.  IN THE PRESENT CASE, OF COURSE, THE
PETITIONERS SOUGHT RELIEF NOT ONLY AGAINST THEIR UNION BUT ALSO AGAINST
THE RAILROAD, AND IT MIGHT AT ONE TIME HAVE BEEN THOUGHT THAT THE
JURISDICTION OF THE RAILROAD ADJUSTMENT BOARD REMAINS EXCLUSIVE IN A
FAIR REPRESENTATION CASE, TO THE EXTENT THAT RELIEF IS SOUGHT AGAINST
THE RAILROAD FOR ALLEGED DISCRIMINATORY PERFORMANCE OF AN AGREEMENT
VALIDLY ENTERED INTO AND LAWFUL IN ITS TERMS.  SEE, E.G., HAYES V.
UNION PACIFIC R. CO., 184 F.2D 337 (C.A. 9TH CIR. 1950), CERT. DENIED,
340 U.S. 942 (1951).  THIS VIEW, HOWEVER, WAS SQUARELY REJECTED IN THE
CONLEY CASE, WHERE WE SAID, "(FOR THE REASONS SET FORTH IN THE TEXT WE
BELIEVE (HAYES, SUPRA) WAS DECIDED INCORRECTLY."  355 U.S.,AT 44, N.
4.  IN THIS SITUATION NO MEANINGFUL DISTINCTION CAN BE DRAWN BETWEEN
DISCRIMINATORY ACTION IN NEGOTIATING THE TERMS OF AN AGREEMENT AND
DISCRIMINATORY ENFORCEMENT OF TERMS THAT ARE FAIR ON THEIR FACE. 
MOREOVER, ALTHOUGH THE EMPLOYER IS MADE A PARTY TO INSURE COMPLETE AND
MEANINGFUL RELIEF, IT STILL REMAINS TRUE THAT IN ESSENCE THE "DISPUTE"
IS ONE BETWEEN SOME EMPLOYEES ON THE ONE HAND AND THE UNION AND
MANAGEMENT TOGETHER ON THE OTHER, NOT ONE "BETWEEN AN EMPLOYEE OR GROUP
OF EMPLOYEES AND A CARRIER OR CARRIERS."  FINALLY, THE RAILROAD
ADJUSTMENT BOARD HAS NO POWER TO ORDER THE KIND OF RELIEF NECESSARY
EVEN WITH RESPECT TO THE RAILROAD ALONE, IN ORDER TO END ENTIRELY
ABUSES OF THE SORT ALLEGED HERE.  THE FEDERAL COURTS MAY THEREFORE
PROPERLY EXERCISE JURISDICTION OVER BOTH THE UNION AND THE RAILROAD. 
SEE ALSO STEELE V. LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192 (1944). 

THE RESPONDENTS ALSO ARGUE THAT THE COMPLAINT SHOULD BE DISMISSED
BECAUSE OF THE PETITIONERS' FAILURE TO EXHAUST THEIR REMEDIES UNDER THE
COLLECTIVE BARGAINING AGREEMENT, THE UNION CONSTITUTION, AND THE
RAILWAY LABOR ACT.  THEY RELY PARTICULARLY ON REPUBLIC STEEL CORP. V.
MADDOX, 379 U.S. 650 (1965), AND VACA V. SIPES, 386 U.S. 171 (1967). 
THE COURT HAS MADE CLEAR, HOWEVER, THAT THE EXHAUSTION REQUIREMENT IS
SUBJECT TO A NUMBER OF EXCEPTIONS FOR THE VARIETY OF SITUATIONS IN
WHICH DOCTRINAIRE APPLICATION OF THE EXHAUSTION RULE WOULD DEFEAT THE
OVERALL PURPOSES OF FEDERAL LABOR RELATIONS POLICY.  THUS, IN VACA
ITSELF THE COURT STRESSED: 

"(IT IS SETTLED THAT THE EMPLOYEE MUST AT LEAST ATTEMPT TO EXHAUST
EXCLUSIVE GRIEVANCE AND ARBITRATION PROCEDURES ESTABLISHED BY THE
BARGAINING AGREEMENT.  REPUBLIC STEEL CORP. V. MADDOX, 379 U.S. 650. 
HOWEVER, BECAUSE THESE CONTRACTUAL REMEDIES HAVE BEEN DEVISED AND ARE
OFTEN CONTROLLED BY THE UNION AND THE EMPLOYER, THEY MAY WELL PROVE
UNSATISFACTORY OR UNWORKABLE FOR THE INDIVIDUAL GRIEVANT.  THE PROBLEM
THEN IS TO DETERMINE UNDER WHAT CIRCUMSTANCES THE INDIVIDUAL EMPLOYEE
MAY OBTAIN JUDICIAL REVIEW OF HIS BREACH-OF-CONTRACT CLAIM DESPITE HIS
FAILURE TO SECURE RELIEF THROUGH THE CONTRACTUAL REMEDIAL PROCEDURES." 
386 U.S.,AT 184-185. 

THE COURT IN VACA WENT ON TO SPECIFY AT LEAST TWO SITUATIONS IN
WHICH SUIT COULD BE BROUGHT BY THE EMPLOYEE DESPITE HIS FAILURE TO
EXHAUST FULLY HIS CONTRACTUAL REMEDIES.  THE CIRCUMSTANCES OF THE
PRESENT CASE CALL INTO PLAY ANOTHER OF THE MOST OBVIOUS EXCEPTIONS TO
THE EXHAUSTION REQUIREMENT-- THE SITUATION WHERE THE EFFORT TO PROCEED
FORMALLY WITH CONTRACTUAL OR ADMINISTRATIVE REMEDIES WOULD BE WHOLLY
FUTILE.  IN A LINE OF CASES BEGINNING WITH STEELE V. LOUISVILLE &
NASHVILLE R. CO., SUPRA, THE COURT HAS REJECTED THE CONTENTION THAT
EMPLOYEES ALLEGING RACIAL DISCRIMINATION SHOULD BE REQUIRED TO SUBMIT
THEIR CONTROVERSY TO "A GROUP WHICH IS IN LARGE PART CHOSEN BY THE
(DEFENDANTS) AGAINST WHOM THEIR REAL COMPLAINT IS MADE."  323 U.S.,AT
206.  AND THE REASONS WHICH PROMPTED THE COURT TO HOLD AS IT DID ABOUT
THE INADEQUACY OF A REMEDY BEFORE THE ADJUSTMENT BOARD APPLY WITH EQUAL
FORCE TO ANY REMEDY ADMINISTERED BY THE UNION, BY THE COMPANY, OR BOTH,
TO PASS ON CLAIMS BY THE VERY EMPLOYEES WHOSE RIGHTS THEY HAVE BEEN
CHARGED WITH NEGLECTING AND BETRAYING.  HERE THE COMPLAINT ALLEGES IN
THE CLEAREST POSSIBLE TERMS THAT A FORMAL EFFORT TO PURSUE CONTRACTUAL
OR ADMINISTRATIVE REMEDIES WOULD BE ABSOLUTELY FUTILE.  UNDER THESE
CIRCUMSTANCES, THE ATTEMPT TO EXHAUST CONTRACTUAL REMEDIES, REQUIRED
UNDER MADDOX, IS EASILY SATISFIED BY PETITIONERS' REPEATED COMPLAINTS
TO COMPANY AND UNION OFFICIALS, AND NO TIME-CONSUMING FORMALITIES
SHOULD BE DEMANDED OF THEM.  THE ALLEGATIONS ARE THAT THE BARGAINING
REPRESENTATIVES OF THE CAR EMPLOYEES HAVE BEEN ACTING IN CONCERT WITH
THE RAILROAD EMPLOYER TO SET UP SCHEMES AND CONTRIVANCES TO BAR NEGROES
FROM PROMOTION WHOLLY BECAUSE OF RACE.  IF THAT IS TRUE, INSISTENCE
THAT PETITIONERS EXHAUST THE REMEDIES ADMINISTERED BY THE UNION AND THE
RAILROAD WOULD ONLY SERVE TO PROLONG THE DEPRIVATION OF RIGHTS TO WHICH
THESE PETITIONERS ACCORDING TO THEIR ALLEGATIONS ARE JUSTLY AND LEGALLY
ENTITLED. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR TRIAL. 

              REVERSED AND REMANDED. 

/1/ IN FULL, SEC. 3 FIRST (I) READS: 

"THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A
CARRIER OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY,
RULES, OR WORKING CONDITIONS, INCLUDING CASES PENDING AND UNADJUSTED ON
THE DATE OF APPROVAL OF THIS ACT (JUNE 21, 1934), SHALL BE HANDLED IN
THE USUAL MANNER UP TO AND INCLUDING THE CHIEF OPERATING OFFICER OF THE
CARRIER DESIGNATED TO HANDLE SUCH DISPUTES; BUT, FAILING TO REACH AN
ADJUSTMENT IN THIS MANNER, THE DISPUTES MAY BE REFERRED BY PETITION OF
THE PARTIES OR BY EITHER PARTY TO THE APPROPRIATE DIVISION OF THE
ADJUSTMENT BOARD WITH A FULL STATEMENT OF THE FACTS AND ALL SUPPORTING
DATA BEARING UPON THE DISPUTES."  48 STAT. 1191, 45 U.S.C. 153 FIRST
(I). 

/2/  SEE, E.G., SLOCUM V. DELAWARE, L. & W.R. CO., 339 U.S. 239. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN IN THE COURT'S OPINION WITH ONE ADDITION AND ONE
RESERVATION. 

I BELIEVE THAT RICHARDSON V. TEXAS & N.O.R. CO., 242 F.2D 230
(1957), DECIDED BY THE FIFTH CIRCUIT SOME YEARS BEFORE ITS DECISION IN
THE PRESENT CASE, ALSO SUPPORTS TODAY'S HOLDING THAT THE FEDERAL COURTS
MAY GRANT RAILROAD EMPLOYEES ANCILLARY RELIEF AGAINST AN EMPLOYER WHO
AIDS AND ABETS THEIR UNION IN BREACHING ITS DUTY OF FAIR
REPRESENTATION.  A CONTRARY RESULT WOULD BIFURCATE, AND NEEDLESSLY
PROLIFERATE, LITIGATION.     I THINK IT CLEAR THAT FOOTNOTE 4 OF CONLEY
V. GIBSON, 355 U.S. 41, 44 (1957), DID NOT-- AS SOME OF THE LANGUAGE IN
TODAY'S OPINION, ANTE, AT 328-329, MIGHT OTHERWISE IMPLY-- ADDRESS
ITSELF TO THE QUESTION NOW DECIDED, WHICH IS ONE OF FIRST IMPRESSION IN
THIS COURT.  CONLEY WAS A SUIT AGAINST THE UNION ONLY.  A CAREFUL
READING OF HAYES V. UNION PACIFIC R. CO., 184 F.2D 337 (1950); THE
DISTRICT COURT'S OPINION IN CONLEY, 138 F.SUPP.  60 (1955), WHICH
RELIED ON HAYES; AND THIS COURT'S OPINION IN CONLEY MAKES IT READILY
APPARENT THAT OUR DISAPPROVAL OF HAYES HAD NOTHING TO DO WITH THE
QUESTION OF JURISDICTION OVER AN EMPLOYER IN A FAIR REPRESENTATION
ACTION. 

WILLIAM M. ACKER, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS.     DONALD W. FISHER ARGUED THE CAUSE FOR RESPONDENTS.  ON
THE BRIEF FOR RESPONDENT ST. LOUIS-SAN FRANCISCO RAILWAY CO. WAS PAUL
R. MOODY.  WITH MR. FISHER ON THE BRIEF FOR RESPONDENT BROTHERHOOD OF
RAILWAY CARMEN OF AMERICA WERE RICHARD R. LYMAN AND JEROME A. COOPER. 
..END :









UNITED STATES V. CONTAINER CORP., 393 U.S. 333 


       UNITED STATES V. CONTAINER CORPORATION OF AMERICA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF NORTH CAROLINA. 

        NO. 27.  ARGUED NOVEMBER 18, 1968.-- DECIDED JANUARY 14,

           1969. 


APPELLEES ACCOUNT FOR ABOUT 90% OF THE SHIPMENT OF CORRUGATED
CONTAINERS FROM PLANTS IN THE SOUTHEASTERN UNITED STATES.  FROM 1955 TO
1963 THE INDUSTRY EXPANDED IN THE SOUTHEAST (ENTRY INTO THE INDUSTRY IS
EASY), ALTHOUGH CAPACITY HAD EXCEEDED DEMAND, AND THE PRICE TREND HAD
BEEN DOWNWARD.  THE PRODUCT IS FUNGIBLE, DEMAND IS INELASTIC, AND
COMPETITION IS BASED ON PRICE.  EACH APPELLEE, UPON REQUEST BY A
COMPETITOR, WOULD FURNISH INFORMATION AS TO THE MOST RECENT PRICE
CHARGED OR QUOTED TO INDIVIDUAL CUSTOMERS, WITH THE EXPECTATION OF
RECIPROCITY AND WITH THE UNDERSTANDING THAT IT REPRESENTED THE PRICE
CURRENTLY BEING BID.  THIS WAS NOT DONE ON A REGULAR BASIS, AS OFTEN
THE DATA WERE AVAILABLE FROM APPELLEES' RECORDS OR FROM CUSTOMERS.  THE
EXCHANGE OF PRICE INFORMATION STABILIZED PRICES THOUGH AT A DOWNWARD
LEVEL.  THE GOVERNMENT'S CIVIL COMPLAINT CHARGING A PRICE-FIXING
AGREEMENT IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT WAS DISMISSED BY
THE DISTRICT COURT AFTER TRIAL.  HELD: 

1.  THE RECIPROCAL EXCHANGE OF PRICE INFORMATION WAS CONCERTED
ACTION SUFFICIENT TO ESTABLISH THE COMBINATION OR CONSPIRACY INGREDIENT
OF SEC. 1 OF THE ACT.  P. 335. 

2.  THE PRICE STABILIZATION WHICH RESULTED FROM THE EXCHANGE OF
PRICE DATA HAD AN ANTICOMPETITIVE EFFECT IN THE CORRUGATED CONTAINER
INDUSTRY, CHILLING THE VIGOR OF PRICE COMPETITION.  PP. 336-338. 

273 F.SUPP.  18, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

HC334 

THIS IS A CIVIL ANTITRUST ACTION CHARGING A PRICE-FIXING AGREEMENT
IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  /1/ 26 STAT. 209, AS
AMENDED, 15 U.S.C. 1.  THE DISTRICT COURT DISMISSED THE COMPLAINT.  273
F.SUPP.  18.  THE CASE IS HERE ON APPEAL, 15 U.S.C. 29; AND WE NOTED
PROBABLE JURISDICTION.  390 U.S. 1022. 

THE CASE AS PROVED IS UNLIKE ANY OTHER PRICE DECISIONS WE HAVE
RENDERED.  THERE WAS HERE AN EXCHANGE OF PRICE INFORMATION BUT NO
AGREEMENT TO ADHERE TO A PRICE SCHEDULE AS IN SUGAR INSTITUTE V. UNITED
STATES, 297 U.S. 553, OR UNITED STATES V. SOCONY-VACUUM OIL CO., 310
U.S. 150.  THERE WAS HERE AN EXCHANGE OF INFORMATION CONCERNING
SPECIFIC SALES TO IDENTIFIED CUSTOMERS, NOT A STATISTICAL REPORT ON THE
AVERAGE COST TO ALL MEMBERS, WITHOUT IDENTIFYING THE PARTIES TO
SPECIFIC TRANSACTIONS, AS IN MAPLE FLOORING MFRS.  ASSN.  V. UNITED
STATES, 268 U.S. 563.  WHILE THERE WAS PRESENT HERE, AS IN CEMENT
MFRS.  PROTECTIVE ASSN. V. UNITED STATES, 268 U.S. 588, AN EXCHANGE OF
PRICES TO SPECIFIC CUSTOMERS, THERE WAS ABSENT THE CONTROLLING
CIRCUMSTANCE, VIZ., THAT CEMENT MANUFACTURERS, TO PROTECT THEMSELVES
FROM DELIVERING TO CONTRACTORS MORE CEMENT THAN WAS NEEDED FOR A
SPECIFIC JOB AND THUS RECEIVING A LOWER PRICE, EXCHANGED PRICE
INFORMATION AS A MEANS OF PROTECTING THEIR LEGAL RIGHTS FROM FRAUDULENT
INDUCEMENTS TO DELIVER MORE CEMENT THAN NEEDED FOR A SPECIFIC JOB. 

HERE ALL THAT WAS PRESENT WAS A REQUEST BY EACH DEFENDANT OF ITS
COMPETITOR FOR INFORMATION AS TO THE MOST RECENT PRICE CHARGED OR
QUOTED, WHENEVER IT NEEDED SUCH INFORMATION AND WHENEVER IT WAS NOT
AVAILABLE FROM ANOTHER SOURCE.  EACH DEFENDANT ON RECEIVING THAT
REQUEST USUALLY FURNISHED RECIPROCAL INFORMATION WHEN IT WANTED IT. 
/2/  THAT CONCERTED ACTION IS OF COURSE SUFFICIENT TO ESTABLISH THE
COMBINATION OR CONSPIRACY, THE INITIAL INGREDIENT OF A VIOLATION OF
SEC. 1 OF THE SHERMAN ACT. 

THERE WAS OF COURSE FREEDOM TO WITHDRAW FROM THE AGREEMENT.  BUT THE
FACT REMAINS THAT WHEN A DEFENDANT REQUESTED AND RECEIVED PRICE
INFORMATION, IT WAS AFFIRMING ITS WILLINGNESS TO FURNISH SUCH
INFORMATION IN RETURN. 

THERE WAS TO BE SURE AN INFREQUENCY AND IRREGULARITY OF PRICE
EXCHANGES BETWEEN THE DEFENDANTS; AND OFTEN THE DATA WERE AVAILABLE
FROM THE RECORDS OF THE DEFENDANTS OR FROM THE CUSTOMERS THEMSELVES. 
YET THE ESSENCE OF THE AGREEMENT WAS TO FURNISH PRICE INFORMATION
WHENEVER REQUESTED. 

MOREOVER, ALTHOUGH THE MOST RECENT PRICE CHARGED OR QUOTED WAS
SOMETIMES FRAGMENTARY, EACH DEFENDANT HAD THE MANUALS WITH WHICH IT
COULD COMPUTE THE PRICE CHARGED BY A COMPETITOR ON A SPECIFIC ORDER TO
A SPECIFIC CUSTOMER. 

FURTHER, THE PRICE QUOTED WAS THE CURRENT PRICE WHICH A CUSTOMER
WOULD NEED TO PAY IN ORDER TO OBTAIN PRODUCTS FROM THE DEFENDANT
FURNISHING THE DATA. 

THE DEFENDANTS ACCOUNT FOR ABOUT 90% OF THE SHIPMENT OF CORRUGATED
CONTAINERS FROM PLANTS IN THE SOUTHEASTERN UNITED STATES.  WHILE
CONTAINERS VARY AS TO DIMENSIONS, WEIGHT, COLOR, AND SO ON, THEY ARE
SUBSTANTIALLY IDENTICAL, NO MATTER WHO PRODUCES THEM, WHEN MADE TO
PARTICULAR SPECIFICATIONS.  THE PRICES PAID DEPEND ON PRICE
ALTERNATIVES.  SUPPLIERS WHEN SEEKING NEW OR ADDITIONAL BUSINESS OR
KEEPING OLD CUSTOMERS, DO NOT EXCEED A COMPETITOR'S PRICE.  IT IS
COMMON FOR PURCHASERS TO BUY FROM TWO OR MORE SUPPLIERS CONCURRENTLY. 
A DEFENDANT SUPPLYING A CUSTOMER WITH CONTAINERS WOULD USUALLY QUOTE
THE SAME PRICE ON ADDITIONAL ORDERS, UNLESS COSTS HAD CHANGED.  YET
WHERE A COMPETITOR WAS CHARGING A PARTICULAR PRICE, A DEFENDANT WOULD
NORMALLY QUOTE THE SAME PRICE OR EVEN A LOWER PRICE. 

THE EXCHANGE OF PRICE INFORMATION SEEMED TO HAVE THE EFFECT OF
KEEPING PRICES WITHIN A FAIRLY NARROW AMBIT.  CAPACITY HAS EXCEEDED THE
DEMAND FROM 1955 TO 1963, THE PERIOD COVERED BY THE COMPLAINT, AND THE
TREND OF CORRUGATED CONTAINER PRICES HAS BEEN DOWNWARD.  YET DESPITE
THIS EXCESS CAPACITY AND THE DOWNWARD TREND OF PRICES, THE INDUSTRY HAS
EXPANDED IN THE SOUTHEAST FROM 30 MANUFACTURERS WITH 49 PLANS TO 51
MANUFACTURERS WITH 98 PLANTS.  AN ABUNDANCE OF RAW MATERIALS AND
MACHINERY MAKES ENTRY INTO THE INDUSTRY EASY WITH AN INVESTMENT OF
$50,000 TO $75,000. 

THE RESULT OF THIS RECIPROCAL EXCHANGE OF PRICES WAS TO STABILIZE
PRICES THOUGH AT A DOWNWARD LEVEL.  KNOWLEDGE OF A COMPETITOR'S PRICE
USUALLY MEANT MATCHING THAT PRICE.  THE CONTINUATION OF SOME PRICE
COMPETITION IS NOT FATAL TO THE GOVERNMENT'S CASE.  THE LIMITATION OR
REDUCTION OF PRICE COMPETITION BRINGS THE CASE WITHIN THE BAN, FOR AS
WE HELD IN UNITED STATES V. SOCONY-VACUUM OIL CO., SUPRA, AT 224, N.
59, INTERFERENCE WITH THE SETTING OF PRICE BY FREE MARKET FORCES IS
UNLAWFUL PER SE.  PRICE INFORMATION EXCHANGED IN SOME MARKETS MAY HAVE
NO EFFECT ON A TRULY COMPETITIVE PRICE.  BUT THE CORRUPGATED CONTAINER
INDUSTRY IS DOMINATED BY RELATIVELY FEW SELLERS.  THE PRODUCT IS
FUNGIBLE AND THE COMPETITION FOR SALES IS PRICE.  THE DEMAND IS
INELASTIC, AS BUYERS PLACE ORDERS ONLY FOR IMMEDIATE, SHORT-RUN NEEDS. 
THE EXCHANGE OF PRICE DATA TENDS TOWARD PRICE UNIFORMITY.  FOR A LOWER
PRICE DOES NOT MEAN A LARGER SHARE OF THE AVAILABLE BUSINESS BUT A
SHARING OF THE EXISTING BUSINESS AT A LOWER RETURN.  STABILIZING PRICES
AS WELL AS RAISING THEM IS WITHIN THE BAN OF SEC. 1 OF THE SHERMAN
ACT.  AS WE SAID IN UNITED STATES V. SCONY-VACUUM OIL CO., SUPRA, AT
223, "IN TERMS OF MARKET OPERATIONS STABILIZATION IS BUT ONE FORM OF
MANIPULATION."  THE INFERENCES ARE IRRESISTIBLE THAT THE EXCHANGE OF
PRICE INFORMATION HAS HAD AN ANTICOMPETITIVE EFFECT IN THE INDUSTRY,
CHILLING THE VIGOR OF PRICE COMPETITION.  THE AGREEMENT IN THE PRESENT
CASE, THOUGH SOMEWHAT CASUAL, IS ANALOGOUS TO THOSE IN AMERICAN COLUMN
& LUMBER CO. V. UNITED STATES, 257 U.S. 377, AND UNITED STATES V.
AMERICAN LINSEED OIL CO., 262 U.S. 371.  /3/ 

PRICE IS TOO CRITICAL, TOO SENSITIVE A CONTROL TO ALLOW IT TO BE
USED EVEN IN AN INFORMAL MANNER TO RESTRAIN COMPETITION.  /4/

              REVERSED. 

/1/  SECTION 1 PROVIDES: 

"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 HEREBY DECLARED TO BE ILLEGAL." 

/2/  THIS IS OBVIOUSLY QUITE DIFFERENT FROM THE PARALLEL BUSINESS
BEHAVIOR CONDONED IN THEATRE ENTERPRISES, INC. V. PARAMOUNT FILM
DISTRIBUTING CORP., 346 U.S. 537. 

/3/  THE AMERICAN COLUMN CASE WAS A SOPHISTICATED AND WELL
SUPERVISED PLAN FOR THE EXCHANGE OF PRICE INFORMATION BETWEEN
COMPETITORS WITH THE IDEA OF KEEPING PRICES REASONABLY STABLE AND OF
PUTTING AN END TO CUTTHROAT COMPETITION.  THERE WERE NO SANCTIONS
EXCEPT FINANCIAL INTEREST AND BUSINESS HONOR.  BUT THE PURPOSE OF THE
PLAN BEING TO INCREASE PRICES, IT WAS HELD TO FALL WITHIN THE BAN OF
THE SHERMAN ACT. 

ANOTHER ELABORATE PLAN FOR THE EXCHANGE OF PRICE DATA AMONG
COMPETITORS WAS INVOLVED IN AMERICAN LINSEED OIL; AND INFORMAL
SANCTIONS WERE USED TO ESTABLISH "MODERN CO-OPERATIVE BUSINESS
METHODS."  THE ARRANGEMENT WAS DECLARED ILLEGAL BECAUSE ITS "NECESSARY
TENDENCY" WAS TO SUPPRESS COMPETITION.  262 U.S.,AT 389. 

/4/  THORSTEIN VEBLEN IN THE THEORY OF BUSINESS ENTERPRISE (1904)
MAKES CLEAR HOW THE OVERABUNDANCE OF A COMMODITY CREATES A BUSINESS
APPETITE TO REGULATE OR CONTROL PRICES OR OUTPUT OR BOTH.  MEASURES
SHORT OF MONOPOLY MAY HAVE "A SALUTARY EFFECT," AS FOR EXAMPLE A DEGREE
OF CONTROL OR SUPERVISION OVER PRICES NOT OBTAINABLE WHILE THE PARTIES
"STOOD ON THEIR OLD FOOTING OF SEVERALTY."  BUT THAT RELIEF IS APT TO
BE "ONLY TRANSIENT," FOR AS THE COSTS OF PRODUCTION DECLINE AND GROWTH
OF THE INDUSTRY "CATCHES UP WITH THE GAIN IN ECONOMY," THE NEED FOR
FURTHER CONTROLS OR RESTRAINTS INCREASES.  AND SO THE RESTLESS, NEVER
ENDING SEARCH FOR PRICE CONTROL AND OTHER TYPES OF RESTRAINT. 

WE HELD IN UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150,
THAT ALL FORMS OF PRICE-FIXING ARE PER SE VIOLATIONS OF THE SHERMAN
ACT. 

"THE ELIMINATION OF SO-CALLED COMPETITIVE EVILS IS NO LEGAL
JUSTIFICATION FOR SUCH BUYING PROGRAMS.  THE ELIMINATION OF SUCH
CONDITIONS WAS SOUGHT PRIMARILY FOR ITS EFFECT ON THE PRICE
STRUCTURES.  FAIRER COMPETITIVE PRICES, IT IS CLAIMED, RESULTED WHEN
DISTRESS GASOLINE WAS REMOVED FROM THE MARKET.  BUT SUCH DEFENSE IS
TYPICAL OF THE PROTESTATIONS USUALLY MADE IN PRICE-FIXING CASES. 
RUINOUS COMPETITION, FINANCIAL DISASTER, EVILS OF PRICE CUTTING AND THE
LIKE APPEAR THROUGHOUT OUR HISTORY AS OSTENSIBLE JUSTIFICATIONS FOR
PRICE-FIXING.  IF THE SO-CALLED COMPETITIVE ABUSES WERE TO BE APPRAISED
HERE, THE REASONABLENESS OF PRICES WOULD NECESSARILY BECOME AN ISSUE IN
EVERY PRICE-FIXING CASE.  IN THAT EVENT THE SHERMAN ACT WOULD SOON BE
EMASCULATED; ITS PHILOSOPHY WOULD BE SUPPLANTED BY ONE WHICH IS WHOLLY
ALIEN TO A SYSTEM OF FREE COMPETITION; IT WOULD NOT BE THE CHARTER OF
FREEDOM WHICH ITS FRAMERS INTENDED."  310 U.S.,AT 220-221. 

MR. JUSTICE FORTAS, CONCURRING. 

I JOIN IN THE JUDGMENT AND OPINION OF THE COURT.  I DO NOT
UNDERSTAND THE COURT'S OPINION TO HOLD THAT THE EXCHANGE OF SPECIFIC
INFORMATION AMONG SELLERS AS TO PRICES CHARGED TO INDIVIDUAL CUSTOMERS,
PURSUANT TO MUTUAL ARRANGEMENT, IS A PER SE VIOLATION OF THE SHERMAN
ACT. 

ABSENT PER SE VIOLATION, PROOF IS ESSENTIAL THAT THE PRACTICE
RESULTED IN AN UNREASONABLE RESTRAINT OF TRADE.  THERE IS NO SINGLE
TEST TO DETERMINE WHEN THE RECORD ADEQUATELY SHOWS AN "UNREASONABLE
RESTRAINT OF TRADE"; BUT A PRACTICE SUCH AS THAT HERE INVOLVED, WHICH
IS ADOPTED FOR THE PURPOSE OF ARRIVING AT A DETERMINATION OF PRICES TO
BE QUOTED TO INDIVIDUAL CUSTOMERS, INEVITABLY SUGGESTS THE PROBABILITY
THAT IT SO MATERIALLY INTERFERED WITH THE OPERATION OF THE PRICE
MECHANISM OF THE MARKET-PLACE AS TO BRING IT WITHIN THE CONDEMNATION OF
THIS COURT'S DECISIONS.  CF. SUGAR INSTITUTE V. UNITED STATES, 297 U.S.
553 (1936); AMERICAN COLUMN & LUMBER CO. V. UNITED STATES, 257 U.S. 377
(1921). 

THEORETICAL PROBABILITY, HOWEVER, IS NOT ENOUGH UNLESS WE ARE TO
REGARD MERE EXCHANGE OF CURRENT PRICE INFORMATION AS SO AKIN TO PRICE
FIXING BY COMBINATION OR CONSPIRACY AS TO DESERVE THE PER SE
CLASSIFICATION.  I AM NOT PREPARED TO DO THIS, NOR IS IT NECESSARY
HERE.  IN THIS CASE, THE PROBABILITY THAT THE EXCHANGE OF SPECIFIC
PRICE INFORMATION LED TO AN UNLAWFUL EFFECT UPON PRICES IS ADEQUATELY
BUTTRESSED BY EVIDENCE IN THE RECORD.  THIS EVIDENCE, ALTHOUGH NOT
OVERWHELMING, IS SUFFICIENT IN THE SPECIAL CIRCUMSTANCES OF THIS CASE
TO SHOW AN ACTUAL EFFECT ON PRICING AND TO COMPEL US TO HOLD THAT THE
COURT BELOW ERRED IN DISMISSING THE GOVERNMENT'S COMPLAINT. 

IN SUMMARY, THE RECORD SHOWS THAT THE DEFENDANTS SOUGHT AND OBTAINED
FROM COMPETITORS WHO WERE PART OF THE ARRANGEMENT INFORMATION ABOUT THE
COMPETITORS' PRICES TO SPECIFIC CUSTOMERS.  "(IN THE MAJORITY OF
INSTANCES," THE DISTRICT COURT FOUND, 273 F.SUPP.  18, 27, THAT ONCE A
DEFENDANT HAD THIS INFORMATION HE QUOTED SUBSTANTIALLY THE SAME PRICE
AS THE COMPETITOR, ALTHOUGH A HIGHER OR LOWER PRICE WOULD
"OCCASIONALLY" BE QUOTED.  THUS THE EXCHANGE OF PRICES MADE IS POSSIBLE
FOR INDIVIDUAL DEFENDANTS CONFIDENTLY TO NAME A PRICE EQUAL TO THAT
WHICH THEIR COMPETITORS WERE ASKING.  THE OBVIOUS EFFECT WAS TO
"STABLIZE" PRICES BY JOINT ARRANGEMENT-- AT LEAST TO LIMIT ANY PRICE
CUTS TO THE MINIMUM NECESSARY TO MEET COMPETITION.  IN ADDITION, THERE
WAS EVIDENCE THAT, IN SOME INSTANCES, DURING PERIODS WHEN VARIOUS
DEFENDANTS CEASED EXCHANGING PRICES EXCEPTIONALLY SHARP AND VIGOROUS
PRICE REDUCTIONS RESULTED. 

ON THIS RECORD, TAKING INTO ACCOUNT THE SPECIALLY SENSITIVE FUNCTION
OF THE PRICE TERM IN THE ANTITRUST EQUATION, I CANNOT SEE THAT WE WOULD
BE JUSTIFIED IN REACHING ANY CONCLUSION OTHER THAN THAT DEFENDANTS'
TACIT AGREEMENT TO EXCHANGE INFORMATION ABOUT CURRENT PRICES TO
SPECIFIC CUSTOMERS DID IN FACT SUBSTANTIALLY LIMIT THE AMOUNT OF PRICE
COMPETITION IN THE INDUSTRY.  THAT BEING SO, THERE IS NO NEED TO
CONSIDER THE POSSIBILITY OF A PER SE VIOLATION. 

MR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

I AGREE WITH THE COURT'S HOLDING THAT THERE EXISTED AN AGREEMENT
AMONG THE DEFENDANTS TO EXCHA NGE PRICE INFORMATION WHENEVER
REQUESTED.  HOWEVER, I CANNOT AGREE THAT THAT AGREEMENT SHOULD BE
CONDEMNED, EITHER AS ILLEGAL PER SE, OR AS HAVING HAD THE PURPOSE OR
EFFECT OF RESTRICTING PRICE COMPETITION IN THE CORRUGATED CONTAINER
INDUSTRY IN THE SOUTHEASTERN UNITED STATES. 

UNDER THE ANTITRUST LAWS, NUMEROUS PRACTICES HAVE BEEN HELD TO BE
ILLEGAL PER SE WITHOUT REGARD TO THEIR PRECISE PURPOSE OR HARM.  AS
THIS COURT SAID IN NORTHERN PACIFIC R. CO. V. UNITED STATES, 356 U.S.
1, 5 (1958), "THERE ARE CERTAIN AGREEMENTS OR PRACTICES WHICH BECAUSE
OF THEIR PERNICIOUS EFFECT ON COMPETITION AND LACK OF ANY REDEEMING
VIRTUE ARE CONCLUSIVELY PRESUMED TO BE UNREASONABLE AND THEREFORE
ILLEGAL WITHOUT ELABORATE INQUIRY AS TO THE PRECISE HARM THEY HAVE
CAUSED OR THE BUSINESS EXCUSE FOR THEIR USE."  AMONG THESE PRACTICES
ARE PRICE-FIXING, UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150,
223 (1940); DIVISION OF MARKETS, UNITED STATES V. ADDYSTON PIPE & STEEL
CO., 85 F. 271 (C.A. 6TH CIR. 1898), AFF'D, 175 U.S. 211 (1899); GROUP
BOYCOTTS, FASHION ORIGINATORS' GUILD V. FTC, 312 U.S. 457 (1941); AND
TYING ARRANGEMENTS, INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392 (1947).  WE HAVE RECENTLY ADDED TO THIS LIST CERTAIN SALES
COMMISSION SYSTEMS FOR THE MARKETING OF TIRES, BATTERIES, AND
ACCESSORIES BY SERVICE STATIONS AFFILIATED WITH MAJOR OIL COMPANIES. 
FTC V. TEXACO INC., ANTE, P. 223 (1968).  THIS COURT HAS REFUSED TO
APPLY A PER SE RULE TO EXCHANGES OF PRICE AND MARKET INFORMATION IN THE
PAST.  SEE AMERICAN COLUMN & LUMBER CO. V. UNITED STATES, 257 U.S. 377
(1921); UNITED STATES V. AMERICAN LINSEED OIL CO., 262 U.S. 371 (1923);
MAPLE FLOORING MFRS.  ASSN.  V. UNITED STATES, 268 U.S. 563 (1925);
CEMENT MFRS.  PROTECTIVE ASSN. V. UNITED STATES, 268 U.S. 588 (1925). 
I BELIEVE WE SHOULD FOLLOW THE SAME COURSE IN THE PRESENT CASE. 

PER SE RULES ALWAYS CONTAIN A DEGREE OF ARBITRARINESS.  THEY ARE
JUSTIFIED ON THE ASSUMPTION THAT THE GAINS FROM IMPOSITION OF THE RULE
WILL FAR OUTWEIGH THE LOSSES AND THAT SIGNIFICANT ADMINISTRATIVE
ADVANTAGES WILL RESULT.  IN OTHER WORDS, THE POTENTIAL COMPETITIVE HARM
PLUS THE ADMINISTRATIVE COSTS OF DETERMINING IN WHAT PARTICULAR
SITUATIONS THE PRACTICE MAY BE HARMFUL MUST FAR OUTWEIGH THE BENEFITS
THAT MAY RESULT.  IF THE POTENTIAL BENEFITS IN THE AGGREGATE ARE
OUTWEIGHED TO THIS DEGREE, THEN THEY ARE SIMPLY NOT WORTH IDENTIFYING
IN INDIVIDUAL CASES. 

I DO NOT BELIEVE THAT THE AGREEMENT IN THE PRESENT CASE IS SO DEVOID
OF POTENTIAL BENEFIT OR SO INHERENTLY HARMFUL THAT WE ARE JUSTIFIED IN
CONDEMNING IT WITHOUT PROOF THAT IT WAS ENTERED INTO FOR THE PURPOSE OF
RESTRAINING PRICE COMPETITION OR THAT IT ACTUALLY HAD THAT EFFECT.  THE
AGREEMENT IN THIS CASE WAS TO SUPPLY, WHEN REQUESTED, PRICE DATA FOR
IDENTIFIED CUSTOMERS.  EACH DEFENDANT SUPPLIED THE NECESSARY
INFORMATION ON THE EXPECTATION THAT THE FAVOR WOULD BE RETURNED.  THE
NATURE OF THE EXCHANGED INFORMATION VARIED FROM CASE TO CASE.  IN MOST
CASES, THE PRICE OBTAINED WAS THE PRICE OF THE LAST SALE TO THE
PARTICULAR CUSTOMER; IN SOME CASES, THE PRICE WAS A CURRENT QUOTATION
TO THE CUSTOMER.  IN ALL CASES, THE INFORMATION OBTAINED WAS SUFFICIENT
TO INFORM THE DEFENDANTS OF THE PRICE THEY WOULD HAVE TO BEAT IN ORDER
TO OBTAIN A PARTICULAR SALE. 

COMPLETE MARKET KNOWLEDGE IS CERTAINLY NOT AN EVIL IN PERFECTLY
COMPETITIVE MARKETS.  THIS IS NOT, HOWEVER, SUCH A MARKET, AND THERE IS
ADMITTEDLY SOME DANGER THAT PRICE INFORMATION WILL BE USED FOR
ANTICOMPETITIVE PURPOSES, PARTICULARLY THE MAINTENANCE OF PRICES AT A
HIGH LEVEL.  IF THE DANGER THAT PRICE INFORMATION WILL BE SO USED IS
PARTICULARLY HIGH IN A GIVEN SITUATION, THEN PERHAPS EXCHANGE OF
INFORMATION SHOULD BE CONDEMNED. 

I DO NOT THINK THE DANGER IS SUFFICIENTLY HIGH IN THE PRESENT CASE. 
DEFENDANTS ARE ONLY 18 OF THE 51 PRODUCERS OF CORRUGATED CONTAINERS IN
THE SOUTHEASTERN UNITED STATES.  TOGETHER, THEY DO MAKE UP 90% OF THE
MARKET AND THE SIX LARGEST DEFENDANTS DO CONTROL 60% OF THE MARKET. 
BUT ENTRY IS EASY; AN INVESTMENT OF $50,000 TO $75,000 IS ORDINARILY
ALL THAT IS NECESSARY.  IN FACT, THE NUMBER OF SELLERS HAS INCREASED
FROM 30 TO THE PRESENT 51 IN THE EIGHT-YEAR PERIOD COVERED BY THE
COMPLAINT.  THE SIZE OF THE MARKET HAS ALMOST DOUBLED BECAUSE OF
INCREASED DEMAND FOR CORRUGATED CONTAINERS.  NEVERTHELESS, SOME EXCESS
CAPACITY IS PRESENT.  THE PRODUCTS PRODUCED BY DEFENDANTS ARE
UNDIFFERENTIATED.  INDUSTRY DEMAND IS INELASTIC, SO THAT PRICE CHANGES
WILL NOT, UP TO A CERTAIN POINT, AFFECT THE TOTAL AMOUNT PURCHASED. 
THE ONLY EFFECT OF PRICE CHANGES WILL BE TO REALLOCATE MARKET SHARES
AMONG SELLERS. 

IN A COMPETITIVE SITUATION, EACH SELLER WILL CUT HIS PRICE IN ORDER
TO INCREASE HIS SHARE OF THE MARKET, AND PRICES WILL ULTIMATELY
STABILIZE AT A COMPETITIVE LEVEL-- I.E., PRICE WILL EQUAL COST,
INCLUDING A REASONABLE RETURN ON CAPITAL.  OBVIOUSLY, IT WOULD BE TO A
SELLER'S BENEFIT TO AVOID SUCH PRICE COMPETITION AND MAINTAIN PRICES AT
A HIGHER LEVEL, WITH A CORRESPONDING INCREASE IN PROFIT.  IN A MARKET
WITH VERY FEW SELLERS, AND DETAILED KNOWLEDGE OF EACH OTHER'S PRICE,
SUCH ACTION IS POSSIBLE.  HOWEVER, I DO NOT THINK IT CAN BE CONCLUDED
THAT THIS PARTICULAR MARKET IS SUFFICIENTLY OLIGOPOLISTIC, ESPECIALLY
IN LIGHT OF THE EASE OF ENTRY, TO JUSTIFY THE INFERENCE THAT PRICE
INFORMATION WILL NECESSARILY BE USED TO STABILIZE PRICES.  NOR DO I
THINK THAT THE DANGER OF SUCH A RESULT IS SUFFICIENTLY HIGH TO JUSTIFY
IMPOSING A PER SE RULE WITHOUT ACTUAL PROOF. 

IN THIS MARKET, WE HAVE A FEW SELLERS PRESENTLY CONTROLLING A
SUBSTANTIAL SHARE OF THE MARKET.  WE HAVE A LARGE NUMBER COMPETING FOR
THE REMAINDER OF THE MARKET, ALSO QUITE SUBSTANTIAL.  AND TOTAL DEMAND
IS INCREASING.  IN SUCH A CASE, I THINK IT JUST AS LOGICAL TO ASSUME
THAT THE SELLERS, ESPECIALLY THE SMALLER AND NEWER ONES, /1/  WILL
DESIRE TO CAPTURE A LARGER MARKET SHARE BY CUTTING PRICES AS IT IS THAT
THEY WILL ACQUIESCE IN OLIGOPOLISTIC BEHAVIOR.  THE LIKELIHOOD THAT
PRICES WILL BE CUT AND THAT THOSE LOWER PRICES WILL HAVE TO BE MET ACTS
AS A DETERRENT TO SETTING PRICES AT AN ARTIFICALLY HIGH LEVEL IN THE
FIRST PLACE.  GIVEN THE UNCERTAINTY ABOUT THE PROBABLE EFFECT OF AN
EXCHANGE OF PRICE INFORMATION IN THIS CONTEXT.  I WOULD REQUIRE THAT
THE GOVERNMENT PROVE THAT THE EXCHANGE WAS ENTERED INTO FOR THE PURPOSE
OF, OR THAT IT HAD THE EFFECT OF, RESTRAINING PRICE COMPETITION. 

I DO NOT FIND THE INFERENCE THAT THE EXCHANGE OF PRICE INFORMATION
HAS HAD AN ANTICOMPETITIVE EFFECT AS "IRRESISTIBLE" AS DOES THE COURT. 
LIKE MY BROTHER FORTAS, I WOULD PREFER THAT A FINDING OF
ANTICOMPETITIVE EFFECT BE SUPPORTED BY "EVIDENCE IN THE RECORD."  I
CANNOT AGREE THAT THE EVIDENCE IN THIS CASE WAS SUFFICIENT TO PROVE
SUCH AN EFFECT.  THE GOVERNMENT HAS SIMPLY NOT PROVED ITS CASE. 

THE COURT DOES NOT HOLD THAT THE AGREEMENT IN THE PRESENT CASE WAS A
DELIBERATE ATTEMPT TO STABILIZE PRICES.  THE EVIDENCE IN THE CASE,
LARGELY THE RESULT OF STIPULATION, WOULD NOT SUPPORT SUCH A HOLDING. 
THE GOVERNMENT POINTS TO A FEW ISOLATED STATEMENTS FOUND IN THE
DEPOSITIONS OF INDUSTRY WITNESSES, BUT I FIND THESE FEW FRAGMENTARY
REFERENCES TOTALLY INSUFFICIENT.  THE WEIGHT OF THE EVIDENCE IN THE
PRESENT CASE INDICATES THAT THE PRICE INFORMATION WAS EMPLOYED BY EACH
DEFENDANT ON AN INDIVIDUAL BASIS, AND WAS USED BY THAT DEFENDANT TO SET
ITS PRICES FOR A SPECIFIC CUSTOMER; ULTIMATELY EACH SELLER WANTED TO
OBTAIN ALL OR PART OF THAT CUSTOMER'S BUSINESS AT THE EXPENSE OF A
COMPETITOR.  THE DISTRICT COURT FOUND THAT THERE WAS NO EXPLICIT
AGREEMENT AMONG DEFENDANTS TO STABILIZE PRICES AND I DO NOT BELIEVE
THAT THE DESIRE OF A FEW INDUSTRY WITNESSES TO USE THE INFORMATION TO
MINIMIZE PRICE CUTS SUPPORTS THE CONCLUSION THAT SUCH AN AGREEMENT WAS
IMPLICIT.  ON THE CONTRARY, THE EVIDENCE ESTABLISHES THAT THE
INFORMATION WAS USED BY DEFENDANTS AS EACH PLEASED AND WAS ACTUALLY
EMPLOYED FOR THE PURPOSE OF ENGAGING IN ACTIVE PRICE COMPETITION. 

NOR DO I BELIEVE THAT THE GOVERNMENT HAS PROVED THAT THE EXCHANGE OF
PRICE INFORMATION HAS IN THIS CASE HAD THE NECESSARY EFFECT OF
RESTRAINING PRICE COMPETITION.  /2/  IN ITS BRIEF BEFORE THIS COURT,
THE GOVERNMENT RELIES VERY LARGELY ON ONE FINDING OF THE DISTRICT COURT
AND UPON ECONOMIC THEORY.  THE GOVERNMENT HAS PRESENTED A CONVINCING
ARGUMENT IN THEORETICAL TERMS.  HOWEVER, THE EVIDENCE SIMPLY DOES NOT
SQUARE WITH THAT THEORY.  AND, THIS IS NOT A CASE IN WHICH IT WOULD BE
UNDULY DIFFICULT TO DEMONSTRATE ANTICOMPETITIVE EFFECTS. 

THE RECORD INDICATES THAT DEFENDANTS HAVE OFFERED VOLUMINOUS
EVIDENCE CONCERNING PRICE TRENDS AND COMPETITIVE BEHAVIOR IN THE
CORRUGATED CONTAINER MARKET.  THEIR EXHIBITS INDICATE A DOWNWARD TREND
IN PRICES, WITH SUBSTANTIAL PRICE VARIATIONS AMONG DEFENDANTS AND AMONG
THEIR DIFFERENT PLANTS.  THERE WAS ALSO A GREAT DEAL OF SHIFTING OF
ACCOUNTS.  THE DISTRICT COURT SPECIFICALLY FOUND THAT THE CORRUGATED
CONTAINER MARKET WAS HIGHLY COMPETITIVE AND THAT EACH DEFENDANT ENGAGED
IN ACTIVE PRICE COMPETITION.  THE GOVERNMENT WOULD HAVE US IGNORE THIS
EVIDENCE AND THESE FINDINGS, AND ASSUME THAT BECAUSE WE ARE DEALING
WITH AN INDUSTRY WITH OVERCAPACITY AND YET CONTINUED ENTRY, THE NEW
ENTRANTS MUST HAVE BEEN ATTRACTED BY HIGH PROFITS.  THE GOVERNMENT THEN
ARGUES THAT HIGH PROFITS CAN ONLY RESULT FROM STABILIZATION OF PRICES
AT AN UNDULY HIGH LEVEL.  YET, THE GOVERNMENT DID NOT INTRODUCE ANY
EVIDENCE ABOUT THE LEVEL OF PROFITS IN THIS INDUSTRY, AND NO EVIDENCE
ABOUT PRICE LEVELS.  NOT ONE CUSTOMER WAS CALLED, ALTHOUGH THE
GOVERNMENT SURELY HAD AMPLE ACCESS TO DEFENDANTS' CUSTOMERS.  THE
GOVERNMENT ADMITS THAT THE PRICE TREND WAS DOWN, BUT ASKS THE COURT TO
ASSUME THAT THE TREND WOULD HAVE BEEN ACCELERATED WITH LESS INFORMED,
AND HENCE MORE VIGOROUS, PRICE COMPETITION.  /3/  IN THE ABSENCE OF ANY
PROOF WHATSOEVER, I CANNOT MAKE SUCH AN ASSUMPTION.  IT IS JUST AS
LIKELY THAT PRICE COMPETITION WAS FURTHERED BY THE EXCHANGE AS IT IS
THAT IT WAS DEPRESSED. 

FINALLY, THE GOVERNMENT FOCUSES ON THE FINDING OF THE DISTRICT COURT
THAT IN A MAJORITY OF INSTANCES A DEFENDANT, WHEN IT RECEIVED WHAT IT
CONSIDERED RELIABLE PRICE INFORMATION, WOULD QUOTE OR CHARGE
SUBSTANTIALLY THE SAME PRICE.  /4/  THE COURT AND MY BROTHER FORTAS
ALSO FOCUS ON THIS FINDING.  SUCH AN APPROACH IGNORES, HOWEVER, THE
REMAINDER OF THE DISTRICT COURT'S FINDINGS.  THE TRIAL JUDGE FOUND THAT
PRICE DECISIONS WERE INDIVIDUAL DECISIONS, AND THAT DEFENDANTS
FREQUENTLY DID CUT PRICES IN ORDER TO OBTAIN A PARTICULAR ORDER.  /5/
AND, THE ABSENCE OF ANY PRICE PARALLELISM OR PRICE UNIFORMITY AND THE
DOWNWARD TREND IN THE INDUSTRY UNDERCUT THE CONCLUSION THAT PRICE
INFORMATION WAS USED TO STABILIZE PRICES.  /6/ 

THE GOVERNMENT IS ULTIMATELY FORCED TO FALL BACK ON THE THEORETICAL
ARGUMENT THAT PRICES WOULD HAVE BEEN MORE UNSTABLE AND WOULD HAVE
FALLEN FASTER WITHOUT PRICE INFORMATION.  AS I SAID EARLIER, I CANNOT
MAKE THIS ASSUMPTION ON THE BASIS OF THE EVIDENCE IN THIS RECORD.  THE
FINDINGS OF THE COURT BELOW SIMPLY DO NOT INDICATE THAT THE EXCHANGE OF
INFORMATION HAD A SIGNIFICANT ANTICOMPETITIVE EFFECT; IF WE RELY ON
THESE FINDINGS, AT WORST ALL WE CAN ASSUME IS THAT THE EXCHANGE WAS A
NEUTRAL FACTOR IN THE MARKET.  /7/  AS THIS COURT SAID IN MAPLE
FLOORING, SUPRA, AT 585:  "WE REALIZE THAT SUCH INFORMATION, GATHERED
AND DISSEMINATED AMONG THE MEMBERS OF A TRADE OR BUSINESS, MAY BE THE
BASIS OF AGREEMENT OR CONCERTED ACTION TO . . . RAISE PRICES BEYOND THE
LEVELS . . . WHICH WOULD PREVAIL IF NO SUCH AGREEMENT OR CONCERTED
ACTION ENSUED AND THOSE ENGAGED IN COMMERCE WERE LEFT FREE TO BASE
INDIVIDUAL INITIATIVE ON FULL INFORMATION OF THE ESSENTIAL ELEMENTS OF
THEIR BUSINESS."  HOWEVER, HERE, AS IN MAPLE FLOORING, THE GOVERNMENT
HAS NOT PROVED THAT THE INFORMATION WAS SO USED.  RATHER, THE RECORD
INDICATES THAT, WHILE EACH DEFENDANT OCCASIONALLY RECEIVED PRICE
INFORMATION FROM A COMPETITOR, THAT INFORMATION WAS USED IN THE SAME
MANNER AS OTHER RELIABLE MARKET INFORMATION-- I.E., TO REACH AN
INDIVIDUAL PRICE DECISION BASED UPON ALL AVAILABLE INFORMATION.  THE
DISTRICT COURT'S FINDINGS THAT THIS WAS A COMPETITIVE INDUSTRY, LACKING
ANY PRICE PARALLELISM OR UNIFORMITY, EFFECTIVELY REFUTE THE
GOVERNMENT'S ASSERTION THAT THE RESULT OF THOSE DECISIONS WAS TO
MAINTAIN OR TEND TO MAINTAIN PRICES AT OTHER THAN A COMPETITIVE LEVEL. 
ACCORDINGLY, I WOULD AFFIRM THE DECISION OF THE COURT BELOW. 

/1/  THE RECORD DOES NOT INDICATE WHETHER ALL MANUFACTURERS ENGAGED
IN EXCHANGE OF PRICE INFORMATION, OR WHETHER THE PRACTICE WAS LIMITED
TO DEFENDANTS.  THERE IS NO INDICATION THAT OTHER MANUFACTURERS WOULD
NOT HAVE BEEN GIVEN PRICE INFORMATION HAD THEY REQUESTED IT. 

/2/  HERE IT IS RELEVANT TO NOTE AGAIN THAT THE EVIDENCE WAS LARGELY
THE RESULT OF STIPULATION, WITH THE GOVERNMENT ADMITTEDLY INTRODUCING
VERY LITTLE EVIDENCE ON THE ACTUAL EFFECT OF THE ALLEGEDLY ILLEGAL
PRACTICE. 

/3/  THERE WAS NO EFFORT TO DEMONSTRATE THAT THE PRICE BEHAVIOR OF
THOSE MANUFACTURERS WHO DID NOT EXCHANGE PRICE INFORMATION, IF ANY,
VARIED SIGNIFICANTLY FROM THE PRICE BEHAVIOR OF THOSE WHO DID.  IN
FACT, SEVERAL OF THE DISTRICT COURT'S FINDINGS INDICATE THAT WHEN
CERTAIN DEFENDANTS STOPPED EXCHANGING PRICE INFORMATION, THEIR PRICE
BEHAVIOR REMAINED ESSENTIALLY THE SAME, AND, IN SOME CASES, PRICES
ACTUALLY INCREASED. 

/4/  IT SHOULD BE NOTED THAT, IN MOST CASES, THIS INFORMATION WAS
OBTAINED FROM A CUSTOMER RATHER THAN A COMPETITOR, A PRACTICE THE
GOVERNMENT DOES NOT CONDEMN. 

/5/  IMMEDIATELY FOLLOWING THE PARTICULAR SENTENCE EMPHASIZED BY THE
GOVERNMENT, THERE APPEARS THE FINDING THAT "(IN MANY INSTANCES,
HOWEVER, DEPENDING UPON PARTICULAR CIRCUMSTANCES, EACH DEFENDANT QUOTED
LOWER OR HIGHER PRICES, AND IN ALL INSTANCES THE DETERMINATION AS TO
THE PRICE TO BE CHARGED OR QUOTED WAS ITS INDIVIDUAL DECISION."  OTHER
FINDINGS OF FACT ARE TO THE SAME EFFECT. 

/6/  AS MENTIONED ABOVE, NO EVIDENCE WAS INTRODUCED THAT WOULD
INDICATE THAT MORE THAN MINIMAL PRICE CUTS WERE ECONOMICALLY FEASIBLE. 

/7/  SEE N. 3, SUPRA. 

ASSISTANT ATTORNEY GENERAL ZIMMERMAN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
LAWRENCE G. WALLACE, LEWIS BERNSTEIN, AND WHAREY M. FREEZE. 

WHITNEY NORTH SEYMOUR ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON
THE BRIEF WERE WILLIAM J. MANNING AND JAMES W. HARBISON, JR., FOR
CONTAINER CORPORATION OF AMERICA, JOSEPH C. CARTER, JR., FOR ALBEMARLE
PAPER MANUFACTURING CO. ET AL., W. P. SANDRIDGE AND W. F. WOMBLE FOR
CAROLINA CONTAINER CO., HELMER R. JOHNSON FOR CONTINENTAL CAN CO.,
INC., HOWARD T. MILMAN AND ROBERT D. KRUMME FOR CROWN ZELLERBACH CORP.,
DAVID J. MAYS FOR DIXIE CONTAINER CORP. ET AL., ALAN W. BOYD AND LOUIS
A. HIGHMARK FOR INLAND CONTAINER CORP., LAWRENCE E. WALSH AND HENRY L.
KING FOR INTERNATIONAL PAPER CO., FORD W. EKEY AND JON M. SEBALY FOR
THE MEAD CORP., FRED E. FULLER AND JAMES A. SPRUNK FOR OWENS-ILLINOIS
GLASS CO., RICHARD A. WHITING FOR ST. JOE PAPER CO., HORACE R. LAMB AND
H. RICHARD WACHTEL FOR ST. REGIS PAPER CO., JAMES H. EPPS, JR., FOR TRI
STATE CONTAINER CORP., JAMES R. WITHROW, JR., FOR UNION BAG-CAMP PAPER
CO., AND E. NOBLES LOWE FOR WEST VIRGINIA PULP & PAPER CO.
..END :
























UNITED STATES V. AUGENBLICK, 393 U.S. 348 


       UNITED STATES V. AUGENBLICK ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

        NO. 45.  ARGUED NOVEMBER 21, 1968.-- DECIDED JANUARY 14,

    1969. 


EVEN IF IT IS ASSUMED, ARGUENDO, DESPITE THE ENACTMENT OF ARTICLE 76
OF THE UNIFORM CODE OF MILITARY JUSTICE (WHICH PROVIDES THAT MILITARY
REVIEW OF COURT-MARTIAL CONVICTIONS SHALL BE "FINAL AND CONCLUSIVE" AND
"BINDING UPON ALL . . . COURTS . . . OF THE UNITED STATES") THAT
COLLATERAL ATTACK ON A COURT-MARTIAL JUDGMENT MAY BE MADE IN THE COURT
OF CLAIMS THROUGH A BACK-PAY SUIT ALLEGING A "CONSTITUTIONAL" DEFECT IN
THE MILITARY DECISION, THE CLAIMS HEREIN, WHICH INVOLVE A RULE OF
EVIDENCE CONCERNING ACCOMPLICE TESTIMONY, AND THE POSSIBLE APPLICATION
OF THE JENCKS ACT, DO NOT ON THEIR FACTS RISE TO THE CONSTITUTIONAL
LEVEL.  PP. 349-356. 

180 CT.CL. 131, 377 F.2D 586; 181 CT.CL. 210, 383 F.2D 1009,
REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, WHO HAD BEEN CONVICTED BY COURTS-MARTIAL, BROUGHT THESE
SUITS FOR BACK PAY.  AUGENBLICK, THOUGH CHARGED WITH SODOMY, WAS
CONVICTED OF A LESSER OFFENSE, AN INDECENT ACT, AND JUHL WAS CONVICTED
OF SELLING OVERSEAS MERCHANDISE OF AN AIR FORCE EXCHANGE.  AUGENBLICK
WAS SENTENCED TO DISMISSAL FROM THE SERVICE; JUHL WAS SENTENCED TO
REDUCTION IN RANK, PARTIAL FORFEITURE OF PAY, AND CONFINEMENT FOR SIX
MONTHS.  EACH EXHAUSTED THE REMEDIES AVAILABLE TO HIM /1/  AND, NOT
HAVING OBTAINED RELIEF, BROUGHT SUIT IN THE COURT OF CLAIMS TO RECOVER
BACK PAY, /2/ ON THE GROUND THAT THE COURT-MARTIAL INFRINGED ON HIS
CONSTITUTIONAL RIGHTS.  THE COURT OF CLAIMS UNDERTOOK TO REVIEW THE
JUDGMENTS OF THE COURTS-MARTIAL FOR CONSTITUTIONAL DEFECTS AND RENDERED
JUDGMENTS FOR RESPONDENTS.  180 CT.CL. 131, 377 F.2D 586; 181 CT.CL.
210, 383 F.2D 1009.  THE CASE IS HERE ON PETITION FOR WRITS OF
CERTIORARI WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTION
CONCERNING THE JURISDICTION OF THE COURT OF CLAIMS TO REVIEW JUDGMENTS
OF COURTS-MARTIAL.  390 U.S. 1038. 

ARTICLE 76 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 876,
PROVIDES THAT MILITARY REVIEW OF COURT-MARTIAL CONVICTIONS SHALL BE
"FINAL AND CONCLUSIVE" AND "BINDING UPON ALL . . . COURTS . . . OF THE
UNITED STATES."  THE LEGISLATIVE HISTORY OF THE PROVISION MAKES CLEAR
THAT RELIEF BY WAY OF HABEAS CORPUS /3/  WAS AN IMPLIED EXCEPTION TO
THAT FINALITY CLAUSE (S. REP. NO. 486, 81ST CONG., 1ST SESS., 32; H.R.
REP. NO. 491, 81ST CONG., 1ST SESS., 35)-- AN EXCEPTION NOT AVAILABLE
TO RESPONDENT AUGENBLICK BECAUSE HE WAS DISCHARGED FROM THE SERVICE,
NOT IMPRISONED, AND A REMEDY APPARENTLY NOT INVOKED BY RESPONDENT JUHL
DURING HIS SHORT PERIOD OF DETENTION. 

AN ADDITIONAL REMEDY, APPARENTLY NOW AVAILABLE BUT NOT CLEARLY KNOWN
AT THE TIME OF THESE COURT-MARTIAL CONVICTIONS, IS REVIEW BY THE COURT
OF MILITARY APPEALS.  IN UNITED STATES V. BEVILACQUA, 18 U.S.C.M.A. 10,
11-12, 39 C.M.R. 10, 11-12, DECIDED NOVEMBER 8, 1968, THAT COURT HELD
THAT IT HAS JURISDICTION "TO ACCORD RELIEF TO AN ACCUSED WHO HAS
PALPABLY BEEN DENIED CONSTITUTIONAL RIGHTS IN ANY COURT-MARTIAL; AND
THAT AN ACCUSED WHO HAS BEEN DEPRIVED OF HIS RIGHTS NEED NOT GO OUTSIDE
THE MILITARY JUSTICE SYSTEM TO FIND RELIEF IN THE CIVILIAN COURTS OF
THE FEDERAL JUDICIARY."  /4/ 

PRIOR TO THE ENACTMENT OF ARTICLE 76, THE COURT OF CLAIMS HAD
ENTERTAINED SUITS FOR BACK PAY BROUGHT BY SERVICEMEN WHO HAD BEEN
CONVICTED BY COURTS-MARTIAL.  SEE, E.G., KEYES V. UNITED STATES, 109
U.S. 336; RUNKLE V. UNITED STATES, 122 U.S. 543; SWAIM V. UNITED
STATES, 165 U.S. 553; UNITED STATES V. BROWN, 206 U.S. 240.  THESE
DECISIONS, IT IS ARGUED, WERE BASED ON THE THEORY THAT THE COURT OF
CLAIMS HAD JURISDICTION OVER BACK-PAY SUITS WHERE THE COURTS-MARTIAL
LACKED "JURISDICTION" IN THE TRADITIONAL SENSE, VIZ., WHERE "THERE IS
NO LAW AUTHORIZING THE COURT-MARTIAL, OR WHERE THE STATUTORY CONDITIONS
AS TO THE CONSTITUTION OR JURISDICTION OF THE COURT ARE NOT OBSERVED." 
KEYES V. UNITED STATES, SUPRA, AT 340.  FROM THIS PREMISE IT IS URGED
THAT WHEN, IN REVIEW OF STATE CONVICTIONS BY WAY OF FEDERAL HABEAS
CORPUS, THE CONCEPT OF "JURISDICTION" WAS BROADENED TO INCLUDE
DEPRIVATION BY THE TRIAL TRIBUNAL OF THE CONSTITUTIONAL RIGHTS OF A
DEFENDANT (MOORE V. DEMPSEY, 261 U.S. 86; JOHNSON V. ZERBST, 304 U.S.
458), THE SCOPE OF COLLATERAL REVIEW OF COURT-MARTIAL CONVICTIONS WAS
ALSO BROADENED.  THAT IS THE POSITION OF THE COURT OF CLAIMS WHICH
REJECTED THE VIEW THAT THE ADOPTION OF ARTICLE 76 INTRODUCED A NEW
REGIME AND THAT 10 U.S.C. 1552 WHICH PROVIDES A REMEDY TO CORRECT A
MILITARY RECORD IN ORDER TO "REMOVE AN INJUSTICE,"  /5/  SEE ASHE V.
MCNAMARA, 355 F.2D 277, IS, APART FROM HABEAS CORPUS, THE EXCLUSIVE
REMEDY.  /6/ 

ON THAT ISSUE THERE HAVE BEEN A VARIETY OF VIEWS EXPRESSED IN THIS
COURT.  SEE BURNS V. WILSON, 346 U.S. 137, 149, 152-153.  THERE IS
LIKEWISE UNRESOLVED THE QUESTION WHETHER, IF THE VIEW OF THE COURT OF
CLAIMS IS CORRECT, THE DISTRICT COURTS MIGHT HAVE A LIKE JURISDICTION
OVER SUITS NOT EXCEEDING $10,000 UNDER THE TUCKER ACT, 28 U.S.C.
1346(A)(2).  /7/  AFTER HEARING ARGUMENT AND STUDYING THE RECORD OF
THESE CASES WE DO NOT REACH THOSE QUESTIONS.  FOR WE CONCLUDE THAT,
EVEN IF WE ASSUME, ARGUENDO, THAT A COLLATERAL ATTACK ON A COURT
MARTIAL JUDGMENT MAY BE MADE IN THE COURT OF CLAIMS THROUGH A BACK-PAY
SUIT ALLEGING A "CONSTITUTIONAL" DEFECT IN THE MILITARY DECISION, THESE
PRESENT CASES ON THEIR FACTS DO NOT RISE TO THAT LEVEL. 

THE COURT OF CLAIMS GAVE RELIEF TO JUHL BECAUSE OF THE PROVISION IN
PARAGRAPH 153(A) OF THE MANUAL FOR COURTS-MARTIAL WHICH STATES THAT THE
COURT-MARTIAL "CANNOT" BASE A CONVICTION "UPON THE UNCORROBORATED
TESTIMONY OF A PURPORTED ACCOMPLICE IN ANY CASE, IF SUCH TESTIMONY IS
SELF-CONTRADICTORY, UNCERTAIN, OR IMPROBABLE." 

WE DO NOT STOP TO REVIEW THE EVIDENCE WHICH BEARS ON THIS ISSUE AND
WHICH THE COURT OF CLAIMS SETS FORTH IN DETAIL.  SEE 181 CT.CL.,AT 215
225, 383 F.2D, AT 1012-1017. 

THE MANUAL WAS PRESCRIBED BY THE PRESIDENT PURSUANT TO ARTICLE 36 OF
THE UNIFORM COEE, 10 U.S.C. 836.  IT IS A GUIDEBOOK THAT SUMMARIZES THE
RULES OF EVIDENCE APPLIED BY COURT-MARTIAL REVIEW BOARDS.  SEE LEVY V.
RESOR, 17 U.S.C.M.A. 135, 37 C.M.R. 399.  THE PARAGRAPH REGARDING
ACCOMPLICE TESTIMONY IS A STATUTORY RULE OF EVIDENCE.  SUCH RULES DO
NOT CUSTOMARILY INVOLVE CONSTITUTIONAL QUESTIONS.  SEE HUMPHREY V.
SMITH, 336 U.S. 695; WHELCHEL V. MCDONALD, 340 U.S. 122.  THE WHELCHEL
CASE INVOLVED VARIOUS PARAGRAPHS OF THE MANUAL DEALING WITH THE DEFENSE
OF INSANITY.  WE DID NOT SANCTION REVIEW OF THOSE PARAGRAPHS IN A
COLLATERAL REMEDY BUT HELD THAT ONLY A DENIAL OF THE OPPORTUNITY FOR
THE MILITARY TO CONSIDER THE DEFENSE OF INSANITY "GOES TO THE QUESTION
OF JURISDICTION"; AND WE ADDED THAT, "(ANY ERROR THAT MAY BE COMMITTED
IN EVALUATING THE EVIDENCE TENDERED IS BEYOND THE REACH OF REVIEW BY
THE CIVIL COURTS."  340 U.S.,AT 124. 

RULES OF EVIDENCE ARE DESIGNED IN THE INTEREST OF FAIR TRIALS.  BUT
UNFAIRNESS IN RESULT IS NO SURE MEASURE OF UNCONSTITUTIONALTITY.  WHEN
WE LOOK AT THE REQUIREMENTS OF PROCEDURAL DUE PROCESS, THE USE OF
ACCOMPLICE TESTIMONY IS NOT CATALOGUED WITH CONSTITUTIONAL
RESTRICTIONS.  OF COURSE, IF KNOWING USE OF ITS PERJURED CHARACTER WERE
LINKED WITH ANY TESTIMONY (MOONEY V. HOLOHAN, 294 U.S. 103; BRADY V.
MARYLAND, 373 U.S. 83), WE WOULD HAVE A PROBLEM OF DIFFERENT
DIMENSIONS.  BUT NOTHING OF THE KIND IS INVOLVED HERE. 

AUGENBLICK'S CLAIM OF CONSTITUTIONAL DEFECT IN HIS COURT-MARTIAL
CONCERNS A PHASE IN THE DISCOVERY OF EVIDENCE.  HE AND A YOUNG AIRMAN,
HODGES, WERE APPREHENDED LATE AT NIGHT IN A PARKED CAR.  THE CIVILIAN
POLICE WHO ARRESTED THEM TURNED THEM OVER TO THE ARMED FORCES POLICE
WHO QUESTIONED THEM SEPARATELY AT A NAVAL STATION IN WASHINGTON, D.C.
HODGES WAS THEN TAKEN TO AN AIR FORCE BASE IN MARYLAND WHERE HE SWORE
TO A FIVE-PAGE WRITTEN STATEMENT. 

AUGENBLICK WAS QUESTIONED AT THE NAVAL STATION AFTER HODGES.  DURING
THIS QUESTIONING OF BOTH MEN, AGENT JAMES MADE A TAPE RECORDING OF THE
CONVERSATIONS.  AGENT MENDELSON EITHER TOOK SOME NOTES OR WROTE UP SOME
NOTES LATER. 

HODGES APPARENTLY STARTED OUT BY DENYING THAT ANYTHING HAPPENED IN
THE PARKED CAR AND LATER MAINTAINED THAT SODOMY HAD TAKEN PLACE,
THOUGH, AS WE HAVE SAID, AUGENBLICK'S CONVICTION WAS FOR AN INDECENT
ACT, NOT FOR SODOMY.  HODGES LATER RECEIVED AN HONORABLE DISCHARGE; AND
IT WAS THE THEORY OF THE DEFENSE THAT HE MAY HAVE BEEN INDUCED TO
CHANGE HIS TESTIMONY ON A PROMISE THAT ONE WOULD BE GIVEN.  IT IS
INDEED HEAVILY IMPRESSED ON US THAT HODGES WAS KEPT AVAILABLE FOR SOME
MONTHS AND LEFT IN GOOD STANDING, IN SPITE OF HIS REPREHENSIBLE
CONDUCT, AND GIVEN AN HONORABLE DISCHARGE ONLY AFTER AUGENBLICK WAS
CONVICTED. 

THE DEFENSE MOVED FOR THE PRODUCTION OF THE NOTES WHICH MENDELSON
HAD TAKEN-- OR LATER TYPED UP-- AND OF THE TAPE WHICH JAMES HAD MADE. 
AS TO THE NOTES, THE LAW OFFICER, WITHOUT EXAMINING THEM IN CAMERA OR
OTHERWISE, DENIED THE REQUEST.  AS TO THE TAPES, THE LAW OFFICER
ORDERED THAT THEY BE PRODUCED OR THAT THE GOVERNMENT PRODUCE WITNESSES
AT AN OUT-OF-COURT HEARING WHO COULD EXPLAIN THEIR NONEXISTENCE.  THE
TAPES WERE NOT PRODUCED; BUT EACH AGENT WHO HAD HAD CONTACT WITH THE
RECORDING WAS CALLED, EXCEPT MENDELSON WHO WAS IN NORFOLK.  JAMES
TESTIFIED THAT THERE WAS A TAPE BUT NO ONE KNEW WHERE IT WAS OR WHAT
HAD HAPPENED TO IT. THE DEFENSE URGED THAT MENDELSON, TO WHOM THE TAPES
HAD APPARENTLY ONCE BEEN DELIVERED, BE CALLED; BUT THE LAW OFFICER
AFTER READING THE RECORD OF MENDELSON'S TESTIMONY ON THE TAPE RECORDING
AT A PRETRIAL INVESTIGATION, REFUSED. 

THE QUESTION OF THE PRODUCTION OF MENDELSON'S "NOTES" AS WELL AS THE
QUESTION OF THE PRODUCTION OF THE TAPES BRING INTO FOCUS THE JENCKS
ACT, 18 U.S.C. 3500.  THIS ACT, ENACTED AFTER OUR DECISION IN JENCKS V.
UNITED STATES, 353 U.S. 657, PROVIDES THAT WHEN A WITNESS TESTIFIES FOR
THE UNITED STATES THE GOVERNMENT MAY BE REQUIRED TO PRODUCE "ANY
STATEMENT" OF THE WITNESS WHICH RELATES TO HIS TESTIMONY.  SEC.
3500(B).  THE TERM "STATEMENT" IS DEFINED IN SUBSECTION (E) AS: 

     "(1) A WRITTEN STATEMENT MADE BY SAID WITNESS AND SIGNED OR

  OTHERWISE ADOPTED OR APPROVED BY HIM; OR 

      "(2) A STENOGRAPHIC, MECHANICAL, ELECTRICAL, OR OTHER

  RECORDING, OR A TRANSCRIPTION THEREOF, WHICH IS A SUBSTANTIALLY

  VERBATIM RECITAL OF AN ORAL STATEMENT MADE BY SAID WITNESS TO AN

  AGENT OF THE GOVERNMENT AND RECORDED CONTEMPORANEOUSLY WITH THE

  MAKING OF SUCH ORAL STATEMENT." 

THERE IS CONSIDERABLE DOUBT IF MENDELSON'S "NOTES" FALL WITHIN THE
DEFINITION OF SUBSECTION (E).  HE TESTIFIED AT THE COURT OF INQUIRY
THAT HE MADE "ROUGH PENCIL NOTES"; AND HE SAID AT THE PRETRIAL
INVESTIGATION, "I DID JOT DOWN A COUPLE OF ROUGH NOTES.  BOTH THE LAW
OFFICER AND THE BOARD OF REVIEW CONCLUDED THAT THESE "NOTES" WERE NOT A
"SUBSTANTIALLY VERBATIM" STATEMENT PRODUCIBLE UNDER THE JENCKS ACT. 

IT IS DIFFICULT TO TELL FROM THIS RECORD THE PRECISE NATURE OF
MENDELSON'S "NOTES," WHETHER THEY RECORDED PART OF HODGES' INTERVIEW OR
WHETHER THEY WERE MERELY A MEMORANDUM GIVING NAMES, PLACES, AND HOURS. 
CERTAINLY THEY WERE NOT A STATEMENT COVERING THE ENTIRE INTERVIEW; AND
IF THEY WERE A TRUNCATED VERSION, THEY WOULD POSE THE QUESTION RESERVED
IN PALERMO V. UNITED STATES, 360 U.S. 343.  SINCE ON EXAMINATION OF THE
RECORD WE ARE LEFT IN DOUBT AS TO THE PRECISE NATURE OF THE "NOTES," WE
CANNOT SAY THAT THE COMMAND OF THE JENCKS ACT WAS DISOBEYED WHEN THEY
WERE NOT ORDERED TO BE PRODUCED. 

MOREOVER, WE SAID IN PALERMO V. UNITED STATES, SUPRA, AT 353, THAT
THE ADMINISTRATION OF THE JENCKS ACT MUST BE ENTRUSTED TO THE "GOOD
SENSE AND EXPERIENCE" OF THE TRIAL JUDGES SUBJECT TO "APPROPRIATELY
LIMITED REVIEW OF APPELLATE COURTS."  WE CANNOT CONCLUDE THAT WHEN IT
CAME TO THE "ROUGH NOTES" OF MENDELSON, THE LAW OFFICER AND BOARD OF
REVIEW ABUSED THEIR DISCRETION IN HOLDING THAT THEY NEED NOT BE
PRODUCED UNDER THE JENCKS ACT. 

THE SAME IS TRUE OF THE RULINGS CONCERNING PRODUCTION OF THE TAPES. 
THERE IS NO DOUBT BUT THAT THE TAPES WERE COVERED BY THE JENCKS ACT;
AND AN EARNEST EFFORT WAS MADE TO LOCATE THEM.  THEIR NATURE AND
EXISTENCE WERE THE SUBJECT OF DETAILED INTERROGATION AT THE PRETRIAL
HEARING CONVENED AT THE REQUEST OF THE DEFENSE.  FOUR GOVERNMENT AGENTS
TESTIFIED CONCERNING THE INTERROGATION OF HODGES, THE RECORDING
FACILITIES USED, THE NAVY'S ROUTINE IN HANDLING AND USING SUCH
RECORDINGS, AND THE FATE OF THE TAPE CONTAINING HODGES' TESTIMONY.  THE
GROUND WAS COVERED ONCE AGAIN AT THE COURT-MARTIAL.  THE TAPES WERE NOT
PRODUCED; THE RECORD INDEED SHOWS THAT THEY WERE NOT FOUND; AND THEIR
ULTIMATE FATE REMAINS A MYSTERY.  THE LAW OFFICER PROPERLY RULED THAT
THE GOVERNMENT BORE THE BURDEN OF PRODUCING THEM OR EXPLAINING WHY IT
COULD NOT DO SO. 

THE RECORD IS DEVOID OF CREDIBLE EVIDENCE THAT THEY WERE
SUPPRESSED.  WHETHER MENDELSON SHOULD HAVE BEEN RECALLED IS A MATTER OF
DEBATE AND PERHAPS DOUBT.  BUT QUESTIONS OF THAT CHARACTER DO NOT RISE
TO A CONSTITUTIONAL LEVEL.  INDEED OUR JENCKS DECISION AND THE JENCKS
ACT WERE NOT CAST IN CONSTITUTIONAL TERMS.  PALERMO V. UNITED STATES,
SUPRA, AT 345, 362.  THEY STATE RULES OF EVIDENCE GOVERNING TRIALS
BEFORE FEDERAL TRIBUNALS; AND WE HAVE NEVER EXTENDED THEIR PRINCIPLES
TO STATE CRIMINAL TRIALS.  IT MAY BE THAT IN SOME SITUATIONS, DENIAL OF
PRODUCTION OF A JENCKS ACT TYPE OF A STATEMENT MIGHT BE A DENIAL OF A
SIXTH AMENDMENT RIGHT.  THERE IS, FOR EXAMPLE, THE COMMAND OF THE SIXTH
AMENDMENT THAT CRIMINAL DEFENDANTS HAVE COMPULSORY PROCESS TO OBTAIN
WITNESSES FOR THEIR DEFENSE.  PALERMO V. UNITED STATES, SUPRA, AT 362
(BRENNAN, J., CONCURRING IN RESULT).  BUT CERTAIN IT IS THAT THIS CASE
IS NOT A WORTHY CANDIDATE FOR CONSIDERATION AT THE CONSTITUTIONAL
LEVEL. 

THE COURT OF CLAIMS, IN A CONSCIENTIOUS EFFORT TO UNDO AN INJUSTICE,
ELEVATED TO A CONSTITUTIONAL LEVEL WHAT IT DEEMED TO BE AN INFRACTION
OF THE JENCKS ACT AND MADE A DENIAL OF DISCOVERY WHICH "SERIOUSLY
IMPEDED HIS RIGHT TO A FAIR TRIAL" A VIOLATION "OF THE DUE PROCESS
CLAUSE OF THE CONSTITUTION."  180 CT.CL.,AT 166, 377 F.2D, AT 606-607. 
BUT APART FROM TRIALS CONDUCTED IN VIOLATION OF EXPRESS CONSTITUTIONAL
MANDATES, A CONSTITUTIONALLY UNFAIR TRIAL TAKES PLACE ONLY WHERE THE
BARRIERS AND SAFEGUARDS ARE SO RELAXED OR FORGOTTEN, AS IN MOORE V.
DEMPSEY, SUPRA, THAT THE PROCEEDING IS MORE A SPECTACLE (RIDEAU V.
LOUISIANA, 373 U.S. 723, 726) OR TRIAL BY ORDEAL (BROWN V. MISSISSIPPI,
297 U.S. 278, 285) THAN A DISCIPLINED CONTEST. 

            REVERSED. 

/1/  AUGENBLICK'S CONVICTION WAS REVIEWED BY A NAVY BOARD OF REVIEW
AND AFFIRMED, ONE MEMBER DISSENTING.  THE COURT OF MILITARY APPEALS
DENIED A PETITION FOR REVIEW WITHOUT OPINION JANUARY 11, 1963.  THE
SECRETARY OF THE NAVY DECLINED REVIEW ON JANUARY 30, 1963.  SEE 10
U.S.C. 871. 

AUGENBLICK WAS DISMISSED FEBRUARY 5, 1963.  ON NOVEMBER 14, 1964,
THE BOARD FOR CORRECTION OF RECORDS DENIED RELIEF. 

HIS SUIT IN THE COURT OF CLAIMS WAS FILED OCTOBER 22, 1964. 

JUHL'S CONVICTION WAS REVIEWED BY THE STAFF JUDGE ADVOCATE.  THE AIR
FORCE BOARD FOR CORRECTION OF MILITARY RECORDS ALSO DENIED RELIEF.  HIS
SUIT IN THE COURT OF CLAIMS WAS FILED OCTOBER 12, 1965. 

/2/  BACK-PAY SUITS ARE BROUGHT UNDER 28 U.S.C. 1491 WHICH PROVIDES
THAT THE COURT OF CLAIMS HAS JURISDICTION TO RENDER JUDGMENT AGAINST
THE UNITED STATES ON ANY CLAIM "FOUNDED EITHER UPON THE CONSTITUTION,
OR ANY ACT OF CONGRESS, OR ANY REGULATION OF AN EXECUTIVE DEPARTMENT,
OR UPON ANY EXPRESS OR IMPLIED CONTRACT WITH THE UNITED STATES.  . . .
"  SEE EASTPORT STEAMSHIP CORP. V. UNITED STATES, 178 CT.CL. 599, 606,
372 F.2D 1002, 1008.  SEE BRENNER, JUDICIAL REVIEW BY MONEY JUDGMENT IN
THE COURT OF CLAIMS, 21 FED.B.J. 179, 190-191 (1961). 

/3/  HABEAS CORPUS HAS BEEN THE CONVENTIONAL WAY OF OBTAINING HERE
COLLATERAL REVIEW OF CONVICTION OF MILITARY TRIBUNALS.  SEE REID V.
COVERT, 354 U.S. 1; BURNS V. WILSON, 346 U.S. 137; WHELCHEL V.
MCDONALD, 340 U.S. 122; GUSIK V. SCHILDER, 340 U.S. 128. 

/4/  AS WE HAVE NOTED, N. 1, SUPRA, AUGENBLICK SOUGHT AND WAS DENIED
REVIEW BY THE COURT OF MILITARY APPEALS; AND JUHL IN HIS PETITION TO
THE COURT OF CLAIMS ALLEGED THAT "(NO APPEAL WAS POSSIBLE UNDER LAW TO
THE UNITED STATES COURT OF MILITARY APPEALS," AN ALLEGATION ADMITTED BY
THE GOVERNMENT IN ITS ANSWER. 

/5/  SECTION 1552(A) OF 10 U.S.C. PROVIDES IN PART: 

"THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED
BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH
BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT,
MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT
NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE." 

/6/  180 CT.CL.,AT 140-143, 377 F.2D, AT 591-593. 

/7/  FOR A DISCUSSION OF TUCKER ACT JURISDICTION OVER BACK-PAY SUITS
SEE H.R. REP. NO. 1604, 88TH CONG., 2D SESS., 2. 

ASSISTANT ATTORNEY GENERAL WEISL ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, JOHN
C. ELDRIDGE, AND ROBERT V. ZENER. 

JOSEPH H. SHARLITT ARGUED THE CAUSE FOR RESPONDENT AUGENBLICK.  WITH
HIM ON THE BRIEF WAS STEVEN R. RIVKIN.  FRANCIS J. STEINER, JR., ARGUED
THE CAUSE AND FILED A BRIEF FOR RESPONDENT JUHL. 
..END :




















THORPE V. HOUSING AUTHORITY, 393 U.S. 268 


       THORPE V. HOUSING AUTHORITY OF THE CITY OF DURHAM. 

        CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

        NO. 20.  ARGUED OCTOBER 23, 1968.-- DECIDED JANUARY 13,

           1969. 


PETITIONER HAD A MONTH-TO-MONTH TENANCY IN A FEDERALLY ASSISTED
PUBLIC HOUSING PROJECT OPERATED BY RESPONDENT, THE LEASE PROVIDING FOR
TERMINATION BY EITHER PARTY ON 15 DAYS' NOTICE.  SHE RECEIVED A LEASE
CANCELLATION NOTICE, WITH NO REASONS BEING GIVEN, THE DAY AFTER BEING
ELECTED PRESIDENT OF A TENANTS' ORGANIZATION.  PETITIONER, WHO
FRUITLESSLY TRIED TO DETERMINE WHY SHE WAS BEING EVICTED, REFUSED TO
VACATE.  RESPONDENT BROUGHT AN EVICTION ACTION, AND THE STATE SUPREME
COURT AFFIRMED THE LOWER COURT'S EVICTION ORDER WHICH HELD THAT THE
REASONS FOR CANCELLATION WERE IMMATERIAL, NOTWITHSTANDING PETITIONER'S
CONTENTION THAT SHE WAS BEING EVICTED BECAUSE OF HER ORGANIZATIONAL
ACTIVITIES IN VIOLATION OF HER FIRST AMENDMENT RIGHTS.  THIS COURT
GRANTED CERTIORARI.  THEREAFTER ON FEBRUARY 7, 1967, THE DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT (HUD) ISSUED A CIRCULAR REQUIRING LOCAL
HOUSING AUTHORITIES TO GIVE TENANTS THE REASONS FOR EVICTION AND TO
AFFORD THEM AN OPPORTUNITY FOR EXPLANATION OR REPLY.  FOLLOWING THIS
COURT'S REMAND FOR FURTHER PROCEEDINGS IN THE LIGHT OF THE HUD CIRCULAR
(386 U.S. 670), THE STATE SUPREME COURT UPHELD PETITIONER'S EVICTION ON
THE GROUND THAT THE PARTIES' RIGHTS HAD "MATURED" BEFORE ISSUANCE OF
THE CIRCULAR, WHICH THE COURT HELD APPLIED ONLY PROSPECTIVELY.  THE
COURT STAYED EXECUTION OF ITS JUDGMENT PENDING THIS COURT'S DECISION. 
RESPONDENT URGES THAT THE CIRCULAR (1) IS ONLY ADVISORY; (2) IF
MANDATORY, CONSTITUTES AN UNCONSTITUTIONAL IMPAIRMENT OF RESPONDENT'S
CONTRACT WITH HUD AND ITS LEASE AGREEMENT WITH PETITIONER; AND (3) IF
CONSTITUTIONAL, DOES NOT APPLY TO EVICTION PROCEEDINGS COMMENCED BEFORE
ITS ISSUANCE.  HELD: 

1.  HOUSING AUTHORITIES OF FEDERALLY ASSISTED PUBLIC HOUSING
PROJECTS MUST FOLLOW THE REQUIREMENTS OF THE FEBRUARY 7, 1967, HUD
CIRCULAR BEFORE EVICTING ANY TENANT RESIDING IN SUCH PROJECTS ON THE
DATE OF THIS COURT'S DECISION HEREIN.  PP. 274-284. 

(A) THE CIRCULAR, WHICH ORIGINALLY SUPPLEMENTED AND LATER BECAME
INCORPORATED IN HUD'S LOW-RENT MANAGEMENT MANUAL ISSUED UNDER THE
AGENCY'S GENERAL RULE-MAKING POWERS PURSUANT TO SEC. 8 OF THE UNITED
STATES HOUSING ACT OF 1937, WAS INTENDED BY HUD TO BE MANDATORY.  PP.
274-276. 

(B) THE SIMPLE NOTIFICATION PROCEDURE REQUIRED BY THE CIRCULAR,
WHICH HAS ONLY NOMINAL EFFECT ON RESPONDENT'S ADMINISTRATION OF THE
HOUSING PROJECT, DOES NOT VIOLATE THE CONGRESSIONAL POLICY SET FORTH IN
THE ACT FOR LOCAL CONTROL OF FEDERALLY FINANCED HOUSING PROJECTS.  PP.
277-278. 

(C) THE RESPECTIVE OBLIGATIONS OF HUD AND RESPONDENT UNDER THE
ANNUAL CONTRIBUTIONS CONTRACT BETWEEN THEM, AND THE LEASE AGREEMENT
BETWEEN PETITIONER AND RESPONDENT, REMAIN UNCHANGED BY THE CIRCULAR,
WHICH THEREFORE DOES NOT INVOLVE ANY IMPAIRMENT OF CONTRACTUAL
OBLIGATIONS IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  PP. 278-280. 

(D) THE CIRCULAR FURTHERS THE ACT'S REMEDIAL PURPOSE.  PP. 280-281. 

(E) THE CIRCULAR APPLIES TO EVICTION PROCEEDINGS COMMENCED BEFORE
ITS ISSUANCE UNDER THE GENERAL RULE THAT A COURT MUST APPLY THE LAW
(HERE THAT OF AN ADMINISTRATIVE AGENCY ACTING PURSUANT TO LEGISLATIVE
AUTHORIZATION) IN EFFECT AT THE TIME IT RENDERS DECISION; AND THAT RULE
IS PARTICULARLY APPLICABLE HERE WHERE ASCERTAINMENT OF THE REASON FOR
EVICTION IS ESSENTIAL TO ENABLE A TENANT TO DEFEND AGAINST EVICTION FOR
ACTIVITY CLAIMED TO BE CONSTITUTIONALLY PROTECTED.  PP. 281-283. 

2.  IT WOULD BE PREMATURE TO DECIDE, AS PETITIONER URGES, THAT THIS
COURT MUST ESTABLISH GUIDELINES TO INSURE THAT SHE IS GIVEN NOT ONLY
THE REASONS FOR HER EVICTION BUT ALSO A HEARING COMPORTING WITH DUE
PROCESS REQUIREMENTS.  PP. 283-284. 

271 N.C. 468, 157 S.E.2D 147, REVERSED AND REMANDED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES THE QUESTION WHETHER A TENANT OF A FEDERALLY
ASSISTED HOUSING PROJECT CAN BE EVICTED PRIOR TO NOTIFICATION OF THE
REASONS FOR THE EVICTION AND WITHOUT AN OPPORTUNITY TO REPLY TO THOSE
REASONS, WHEN SUCH A PROCEDURE IS PROVIDED FOR IN A DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT (HEREINAFTER HUD) CIRCULAR ISSUED AFTER
EVICTION PROCEEDINGS HAVE BEEN INITIATED. 

ON NOVEMBER 11, 1964, PETITIONER AND HER CHILDREN COMMENCED A MONTH
TO-MONTH TENANCY IN MCDOUGALD TERRACE, A FEDERALLY ASSISTED, LOW-RENT
HOUSING PROJECT OWNED AND OPERATED BY THE HOUSING AUTHORITY OF THE CITY
OF DURHAM, NORTH CAROLINA.  UNDER THE LEASE, PETITIONER IS ENTITLED TO
AN AUTOMATIC RENEWAL FOR SUCCESSIVE ONE-MONTH TERMS, PROVIDED THAT HER
FAMILY COMPOSITION AND INCOME REMAIN UNCHANGED AND THAT SHE DOES NOT
VIOLATE THE TERMS OF THE LEASE.  /1/  THE LEASE ALSO PROVIDES, HOWEVER,
THAT EITHER THE TENANT OR THE AUTHORITY MAY TERMINATE THE TENANCY BY
GIVING NOTICE AT LEAST 15 DAYS BEFORE THE END OF ANY MONTHLY TERM. 
/2/ 

ON AUGUST 10, 1965, PETITIONER WAS ELECTED PRESIDENT OF A MCDOUGALD
TERRACE TENANTS' ORGANIZATION CALLED THE PARENTS' CLUB.  ON THE VERY
NEXT DAY, WITHOUT ANY EXPLANATION, THE EXECUTIVE DIRECTOR OF THE
HOUSING AUTHORITY NOTIFIED PETITIONER THAT HER LEASE WOULD BE CANCELED
AS OF AUGUST 31.  /3/  AFTER RECEIVING NOTICE, PETITIONER ATTEMPTED
THROUGH HER ATTORNEYS, BY PHONE AND BY LETTER, TO FIND OUT THE REASONS
FOR HER EVICTION.  /4/  HER INQUIRIES WENT UNANSWERED, AND SHE REFUSED
TO VACATE. 

ON SEPTEMBER 17, 1965, THE HOUSING AUTHORITY BROUGHT AN ACTION FOR
SUMMARY EVICTION IN THE DURHAM JUSTICE OF THE PEACE COURT, WHICH, THREE
DAYS LATER, ORDERED PETITIONER REMOVED FROM HER APARTMENT.  ON APPEAL
TO THE SUPERIOR COURT OF DURHAM COUNTY, PETITIONER ALLEGED THAT SHE WAS
BEING EVICTED BECAUSE OF HER ORGANIZATIONAL ACTIVITIES IN VIOLATION OF
HER FIRST AMENDMENT RIGHTS.  AFTER A TRIAL DE NOVO, /5/  THE SUPERIOR
COURT AFFIRMED THE EVICTION, AND THE SUPREME COURT OF NORTH CAROLINA
ALSO AFFIRMED.  /6/  BOTH APPELLATE COURTS HELD THAT UNDER THE LEASE
THE AUTHORITY'S REASONS FOR TERMINATING PETITIONER'S TENANCY WERE
IMMATERIAL.  ON DECEMBER 5, 1966, WE GRANTED CERTIORARI /7/  TO
CONSIDER WHETHER PETITIONER WAS DENIED DUE PROCESS BY THE HOUSING
AUTHORITY'S REFUSAL TO STATE THE REASONS FOR HER EVICTION AND TO AFFORD
HER A HEARING AT WHICH SHE COULD CONTEST THE SUFFICIENCY OF THOSE
REASONS. 

ON FEBRUARY 7, 1967, WHILE PETITIONER'S CASE WAS PENDING IN THIS
COURT, HUD ISSUED A CIRCULAR DIRECTING THAT BEFORE INSTITUTING AN
EVICTION PROCEEDING LOCAL HOUSING AUTHORITIES OPERATING ALL FEDERALLY
ASSISTED PROJECTS SHOULD INFORM THE TENANT "IN A PRIVATE CONFERENCE OR
OTHER APPROPRIATE MANNER" OF THE REASONS FOR THE EVICTION AND GIVE HIM
"AN OPPORTUNITY TO MAKE SUCH REPLY OR EXPLANATION AS HE MAY WISH."  /8/
SINCE THE APPLICATION OF THIS DIRECTIVE TO PETITIONER WOULD RENDER A
DECISION ON THE CONSTITUTIONAL ISSUES SHE RAISED UNNECESSARY, WE
VACATED THE JUDGMENT OF THE SUPREME COURT OF NORTH CAROLINA AND
REMANDED THE CASE "FOR SUCH FURTHER PROCEEDINGS AS MAY BE APPROPRIATE
IN THE LIGHT OF THE FEBRUARY 7 CIRCULAR OF THE DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT."  /9/ 

ON REMAND, THE NORTH CAROLINA SUPREME COURT REFUSED TO APPLY THE
FEBRUARY 7 HUD CIRCULAR AND REAFFIRMED ITS PRIOR DECISION UPHOLDING
PETITIONER'S EVICTION.  ANALOGIZING TO THE NORTH CAROLINA RULE THAT
STATUTES ARE PRESUMED TO ACT PROSPECTIVELY ONLY, THE COURT HELD THAT
SINCE "(ALL CRITICAL EVENTS"  /10/  HAD OCCURRED PRIOR TO THE DATE ON
WHICH THE CIRCULAR WAS ISSUED "(THE RIGHTS OF THE PARTIES HAD MATURED
AND HAD BEEN DETERMINED BEFORE . . . " THAT DATE.  /11/  WE AGAIN
GRANTED CERTIORARI.  /12/  WE REVERSE THE JUDGMENT OF THE SUPREME COURT
OF NORTH CAROLINA AND HOLD THAT HOUSING AUTHORITIES OF FEDERALLY
ASSISTED PUBLIC HOUSING PROJECTS MUST APPLY THE FEBRUARY 7, 1967 HUD
CIRCULAR BEFORE EVICTING ANY TENANT STILL RESIDING IN SUCH PROJECTS ON
THE DATE OF THIS DECISION.  /13/ 

IN SUPPORT OF THE NORTH CAROLINA JUDGMENT, THE HOUSING AUTHORITY
MAKES THREE ARGUMENTS:  (1) THE HUD CIRCULAR WAS INTENDED TO BE
ADVISORY, NOT MANDATORY; (2) IF THE CIRCULAR IS MANDATORY, IT IS AN
UNAUTHORIZED AND UNCONSTITUTIONAL IMPAIRMENT OF BOTH THE AUTHORITY'S
ANNUAL CONTRIBUTIONS CONTRACT WITH HUD /14/  AND THE LEASE AGREEMENT
BETWEEN THE AUTHORITY AND PETITIONER; AND (3) EVEN IF THE CIRCULAR IS
MANDATORY, WITHIN HUD'S POWER, AND CONSTITUTIONAL, IT DOES NOT APPLY TO
EVICTION PROCEEDINGS COMMENCED PRIOR TO THE DATE THE CIRCULAR WAS
ISSUEO.  WE REJECT EACH OF THESE CONTENTIONS. 

        I. 

PURSUANT TO ITS GENERAL RULE-MAKING POWER UNDER SEC. 8 OF THE UNITED
STATES HOUSING ACT OF 1937, /15/  HUD HAS ISSUED A LOW-RENT MANAGEMENT
MANUAL, /16/  WHICH CONTAINS REQUIREMENTS THAT SUPPLEMENT THE
PROVISIONS OF THE ANNUAL CONTRIBUTIONS CONTRACT APPLICABLE TO PROJECT
MANAGEMENT.  /17/  ACCORDING TO HUD, THESE REQUIREMENTS "ARE THE
MINIMUM CONSIDERED CONSISTENT WITH FULFILLING FEDERAL RESPONSIBILITIES"
UNDER THE ACT.  /18/  CHANGES IN THE MANUAL ARE INITIALLY PROMULGATED
AS CIRCULARS.  THESE CIRCULARS, WHICH HAVE NOT YET BEEN PHYSICALLY
INCORPORATED INTO THE MANUAL, ARE TEMPORARY ADDITIONS OR MODIFICATIONS
OF THE MANUAL'S REQUIREMENTS AND "HAVE THE SAME EFFECT."  /19/  IN
CONTRAST, THE VARIOUS "HANDBOOKS" AND "BOOKLETS" ISSUED BY HUD CONTAIN
MERE "INSTRUCTIONS," "TECHNICAL SUGGESTIONS," AND "ITEMS FOR
CONSIDERATION."  /20/ 

DESPITE THE INCORPORATION OF THE FEBRUARY 7 CIRCULAR INTO THE
MANAGEMENT MANUAL IN OCTOBER 1967, THE HOUSING AUTHORITY CONTENDS THAT
ON ITS FACE THE CIRCULAR PURPORTS TO BE ONLY ADVISORY.  THE AUTHORITY
PLACES PARTICULAR EMPHASIS ON THE CIRCULAR'S PRECATORY STATEMENT THAT
HUD "BELIEVES" THAT ITS NOTIFICATION PROCEDURE SHOULD BE FOLLOWED.  IN
ADDITION TO OVERLOOKING THE SIGNIFICANCE OF THE SUBSEQUENT
INCORPORATION OF THE CIRCULAR INTO THE MANAGEMENT MANUAL, THE
AUTHORITY'S ARGUMENT IS BASED UPON A SIMPLE MISCONSTRUCTION OF THE
LANGUAGE, WHICH CHARACTERIZES THE NEW NOTIFICATION PROCEDURE AS
"ESSENTIAL," BECOMES APPARENT WHEN THE FEBRUARY 7 CIRCULAR IS
CONTRASTED WITH THE ONE IT SUPERSEDED.  THE EARLIER CIRCULAR, ISSUED ON
MAY 31, 1966, STATED:  "(WE STRONGLY URGE, AS A MATTER OF GOOD SOCIAL
POLICY, THAT LOCAL AUTHORITIES IN A PRIVATE CONFERENCE INFORM ANY
TENANTS WHO ARE GIVEN . . . (TERMINATION) NOTICES OF THE REASONS FOR
THIS ACTION.  /21/  THIS CIRCULAR WAS NOT INCORPORATED INTO THE
MANAGEMENT MANUAL. 

THAT HUD INTENDED THE FEBRUARY 7 CIRCULAR TO BE MANDATORY HAS BEEN
CONFIRMED UNEQUIVOCALLY IN LETTERS WRITTEN BY HUD'S ASSISTANT SECRETARY
FOR RENEWAL AND HOUSING ASSISTANCE /22/  AND BY ITS CHIEF COUNSEL. 
/23/  AS WE STATED IN BOWLES V. SEMINOLE ROCK CO., 325 U.S. 410, 414
(1945), WHEN CONSTRUING AN ADMINISTRATIVE REGULATION, "A COURT MUST
NECESSARILY LOOK TO THE ADMINISTRATIVE CONSTRUCTION OF THE REGULATION
IF THE MEANING OF THE WORDS USED IS IN DOUBT.  . . . (THE ULTIMATE
CRITERION IS THE ADMINISTRATIVE INTERPRETATION, WHICH BECOMES OF
CONTROLLING WEIGHT UNLESS IT IS PLAINLY ERRONEOUS OR INCONSISTENT WITH
THE REGULATIONS."  /24/  THUS, WHEN THE LANGUAGE AND HUD'S TREATMENT OF
THE FEBRUARY 7 CIRCULAR ARE CONTRASTED WITH THE LANGUAGE AND TREATMENT
OF THE SUPERSEDED CIRCULAR, THERE CAN BE NO DOUBT THAT THE MORE RECENT
CIRCULAR WAS INTENDED TO BE MANDATORY, NOR MERELY ADVISORY AS CONTENDED
BY THE AUTHORITY. 

        II. 

FINDING THAT THE CIRCULAR WAS INTENDED TO BE MANDATORY DOES NOT, OF
COURSE, DETERMINE THE VALIDITY OF THE REQUIREMENTS IT IMPOSES.  /25/
IN OUR OPINION REMANDING THIS CASE TO THE SUPREME COURT OF NORTH
CAROLINA TO CONSIDER THE HUD CIRCULAR'S APPLICABILITY, WE POINTED OUT
THAT THE CIRCULAR WAS ISSUED PURSUANT TO HUD'S RULE-MAKING POWER UNDER
SEC. 8 OF THE UNITED STATES HOUSING ACT OF 1937, /26/  WHICH AUTHORIZES
HUD /27/  "FROM TIME TO TIME (TO) MAKE, AMEND, AND RESCIND SUCH RULES
AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS
ACT."  /28/  THE HOUSING AUTHORITY ARGUES THAT THIS AUTHORIZATION IS
LIMITED BY THE ACT'S EXPRESS POLICY OF "VESTING) IN THE LOCAL PUBLIC
HOUSING AGENCIES THE MAXIMUM AMOUNT OF RESPONSIBILITY IN THE
ADMINISTRATION OF THE LOW-RENT HOUSING PROGRAM, INCLUDING
RESPONSIBILITY FOR THE ESTABLISHMENT OF RENTS AND ELIGIBILITY
REQUIREMENTS (SUBJECT TO THE APPROVAL OF . . . (HUD)), WITH DUE
CONSIDERATION TO ACCOMPLISHING THE OBJECTIVES OF THIS ACT WHILE
EFFECTING ECONOMIES."  /29/  BUT THE HUD CIRCULAR IS NOT INCONSISTENT
WITH THIS POLICY.  ITS MINIMAL EFFECT UPON THE AUTHORITY'S
"RESPONSIBILITY IN THE ADMINISTRATION" OF MCDOUGALD TERRACE IS APTLY
ATTESTED TO BY THE AUTHORITY'S OWN DESCRIPTION OF WHAT THE CIRCULAR
DOES NOT REQUIRE: 

"IT DOES NOT . . . PURPORT TO CHANGE THE TERMS OF THE LEASE
PROVISIONS USED BY HOUSING AUTHORITIES, NOR DOES IT PURPORT TO TAKE
AWAY FROM THE HOUSING AUTHORITY ITS LEGAL ABILITY TO EVICT BY COMPLYING
WITH THE TERMS OF THE LEASE AND THE PERTINENT PROVISIONS OF THE STATE
LAW RELATING TO EVICTIONS.  IT DOES NOT DEAL WITH WHAT REASONS ARE
ACCEPTABLE TO HUD.  . . . MOREOVER, THE CIRCULAR CLEARLY DOES NOT SAY
THAT A HOUSING AUTHORITY CANNOT TERMINATE AT THE END OF ANY TERM
WITHOUT CAUSE AS IS PROVIDED IN THE LEASE."  /30/ 

THE CIRCULAR IMPOSES ONLY ONE REQUIREMENT:  THAT THE AUTHORITY
COMPLY WITH A VERY SIMPLE NOTIFICATION PROCEDURE BEFORE EVICTING ITS
TENANTS.  GIVEN THE ADMITTEDLY INSUBSTANTIAL EFFECT THIS REQUIREMENT
HAS UPON THE BASIC LEASE AGREEMENT UNDER WHICH THE AUTHORITY DISCHARGES
ITS MANAGEMENT RESPONSIBILITIES, THE CONTENTION THAT THE CIRCULAR
VIOLATES THE CONGRESSIONAL POLICY OF ALLOWING LOCAL AUTHORITIES TO
RETAIN MAXIMUM CONTROL OVER THE ADMINISTRATION OF FEDERALLY FINANCED
HOUSING PROJECTS IS UNTENABLE. 

THE AUTHORITY ALSO ARGUES THAT UNDER THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT HUD IS POWERLESS TO IMPOSE ANY OBLIGATIONS EXCEPT THOSE
MUTUALLY AGREED UPON IN THE ANNUAL CONTRIBUTIONS CONTRACT.  /31/  IF
HUD'S POWER IS NOT SO LIMITED, THE AUTHORITY ARGUES, HUD WOULD BE FREE
TO IMPAIR ITS CONTRACTUAL OBLIGATIONS TO THE AUTHORITY THROUGH
UNILATERAL ACTION.  MOREOVER, IN THIS PARTICULAR CASE, THE AUTHORITY
CONTENDS THAT HUD HAS NOT ONLY IMPAIRED ITS OWN CONTRACT BETWEEN
PETITIONER AND THE AUTHORITY.  THE OBLIGATIONS OF EACH OF THESE
CONTRACTS, HOWEVER, CAN BE IMPAIRED ONLY "BY A LAW WHICH RENDERS THEM
INVALID, OR RELEASES OR EXTINGUISHES THEM . . . (OR BY A LAW) WHICH
WITHOUT DESTROYING (THE) CONTRACTS DEROGATES) FROM SUBSTANTIAL
CONTRACTUAL RIGHTS."  /32/  THE HUD CIRCULAR DOES NEITHER. 

THE RESPECTIVE OBLIGATIONS OF BOTH HUD AND THE AUTHORITY UNDER THE
ANNUAL CONTRIBUTIONS CONTRACT REMAIN UNCHANGED.  EACH PROVISION OF THAT
CONTRACT IS AS ENFORCEABLE NOW AS IT WAS PRIOR TO THE ISSUANCE OF THE
CIRCULAR.  /33/  ALTHOUGH THE CIRCULAR SUPPLEMENTS THE CONTRACT IN THE
SENSE THAT IT IMPOSES UPON THE AUTHORITY AN ADDITIONAL OBLIGATION NOT
CONTAINED IN THE CONTRACT, THAT OBLIGATION IS IMPOSED UNDER HUD'S
WHOLLY INDEPENDENT RULE-MAKING POWER. 

LIKEWISE, THE LEASE AGREEMENT BETWEEN THE AUTHORITY AND PETITIONER
REMAINS INVIOLATE.  PETITIONER MUST STILL PAY HER RENT AND COMPLY WITH
THE OTHER TERMS OF THE LEASE; AND, AS THE AUTHORITY ITSELF
ACKNOWLEDGES, SHE IS STILL SUBJECT TO EVICTION.  /34/  HUD HAS MERELY
PROVIDED FOR A PARTICULAR TYPE OF NOTIFICATION THAT MUST PRECEDE
EVICTION; AND "(IN MODES OF PROCEEDING AND FORMS TO ENFORCE THE
CONTRACT THE LEGISLATURE HAS THE CONTROL, AND MAY ENLARGE, LIMIT, OR
ALTER THEM, PROVIDED IT DOES NOT DENY A REMEDY OR SO EMBARRASS IT WITH
CONDITIONS OR RESTRICTIONS AS SERIOUSLY TO IMPAIR THE VALUE OF THE
RIGHT."  /35/ 

SINCE THE AUTHORITY DOES NOT ARGUE THAT THE CIRCULAR IS PROSCRIBED
BY ANY CONSTITUTIONAL PROVISION OTHER THAN THE DUE PROCESS CLAUSE, THE
ONLY REMAINING INQUIRY IS WHETHER IT IS REASONABLY RELATED TO THE
PURPOSES OF THE ENABLING LEGISLATION UNDER WHICH IT WAS PROMULGATED. 
/36/  ONE OF THE SPECIFIC PURPOSES OF THE FEDERAL HOUSING ACTS IS TO
PROVIDE "A DECENT HOME AND A SUITABLE LIVING ENVIRONMENT FOR EVERY
AMERICAN FAMILY"  /37/  THAT LACKS THE FINANCIAL MEANS OF PROVIDING
SUCH A HOME WITHOUT GOVERNMENTAL AID.  A PROCEDURE REQUIRING HOUSING
AUTHORITIES TO EXPLAIN WHY THEY ARE EVICTING A TENANT WHO IS APPARENTLY
AMONG THOSE PEOPLE IN NEED OF SUCH ASSISTANCE CERTAINLY FURTHERS THIS
GOAL.  WE THEREFORE CANNOT HOLD THAT THE CIRCULAR'S REQUIREMENTS BEAR
NO REASONABLE RELATIONSHIP TO THE PURPOSES FOR WHICH HUD'S RULE-MAKING
POWER WAS AUTHORIZED. 

        III. 

THE HOUSING AUTHORITY ALSO URGES THAT PETITIONER'S EVICTION SHOULD
BE UPHELD ON THE THEORY RELIED UPON BY THE SUPREME COURT OF NORTH
CAROLINA:  THE CIRCULAR DOES NOT APPLY TO EVICTION PROCEEDINGS
COMMENCED PRIOR TO ITS ISSUANCE.  THE GENERAL RULE, HOWEVER, IS THAT AN
APPELLATE COURT MUST APPLY THE LAW IN EFFECT AT THE TIME IT RENDERS ITS
DECISION.  /38/  SINCE THE LAW WE ARE CONCERNED WITH IN THIS CASE IS
EMBODIED IN A FEDERAL ADMINISTRATIVE REGULATION, THE APPLICABILITY OF
THIS GENERAL RULE IS NECESSARILY GOVERNED BY FEDERAL LAW.  CHIEF
JUSTICE MARSHALL EXPLAINED THE RULE OVER 150 YEARS AGO AS FOLLOWS: 
"(IF SUBSEQUENT TO THE JUDGMENT AND BEFORE THE DECISION OF THE
APPELLATE COURT, A LAW INTERVENES AND POSITIVELY CHANGES THE RULE WHICH
GOVERNS, THE LAW MUST BE OBEYED, OR ITS OBLIGATION DENIED.  IF THE LAW
BE CONSTITUTIONAL, . . . I KNOW OF NO COURT WHICH CAN CONTEST ITS
OBLIGATION.  IT IS TRUE THAT IN MERE PRIVATE CASES BETWEEN INDIVIDUALS,
A COURT WILL AND OUGHT TO STRUGGLE HARD AGAINST A CONSTRUCTION WHICH
WILL, BY A RETROSPECTIVE OPERATION, AFFECT THE RIGHTS OF PARTIES, BUT
IN GREAT NATIONAL CONCERNS . . . THE COURT MUST DECIDE ACCORDING TO
EXISTING LAWS, AND IF IT BE NECESSARY TO SET ASIDE A JUDGMENT, RIGHTFUL
WHEN RENDERED, BUT WHICH CANNOT BE AFFIRMED BUT IN VIOLATION OF LAW,
THE JUDGMENT MUST BE SET ASIDE."  /39/ THIS SAME REASONING HAS BEEN
APPLIED WHERE THE CHANGE WAS CONSTITUTIONAL, /40/  STATUTORY, /41/  OR
JUDICIAL.  /42/  SURELY IT APPLIES WITH EQUAL FORCE WHERE THE CHANGE IS
MADE BY AN ADMINISTRATIVE AGENCY ACTING PURSUANT TO LEGISLATIVE
AUTHORIZATION.  EXCEPTIONS HAVE BEEN MADE TO PREVENT MANIFEST
INJUSTICE, /43/  BUT THIS IS NOT SUCH A CASE. 

TO THE CONTRARY, THE GENERAL RULE IS PARTICULARLY APPLICABLE HERE. 
THE HOUSING AUTHORITY CONCEDES THAT ITS POWER TO EVICT IS LIMITED AT
LEAST TO THE EXTENT THAT IT MAY NOT EVICT A TENANT FOR ENGAGING IN
CONSTITUTIONALLY PROTECTED ACTIVITY; /44/  BUT A TENANT WOULD HAVE
CONSIDERABLE DIFFICULTY EFFECTIVELY DEFENDING AGAINST SUCH AN
ADMITTEDLY ILLEGAL EVICTION IF THE AUTHORITY WERE UNDER NO OBLIGATION
TO DISCLOSE ITS REASONS.  /45/  ON THE OTHER HAND, REQUIRING THE
AUTHORITY TO APPLY THE CIRCULAR BEFORE EVICTING PETITIONER NOT ONLY
DOES NOT INFRINGE UPON ANY OF ITS RIGHTS, BUT ALSO DOES NOT EVEN
CONSTITUTE AN IMPOSITION.  THE AUTHORITY ADMITTED DURING ORAL ARGUMENT
THAT IT HAS ALREADY BEGUN COMPLYING WITH THE CIRCULAR.  /46/  IT
REFUSES TO APPLY IT TO PETITIONER SIMPLY BECAUSE IT DECIDED TO EVICT
HER BEFORE THE CIRCULAR WAS ISSUED.  SINCE PETITIONER HAS NOT YET
VACATED, WE FAIL TO SEE THE SIGNIFICANCE OF THIS DISTINCTION.  WE
CONCLUDE, THEREFORE, THAT THE CIRCULAR SHOULD BE APPLIED TO ALL TENANTS
STILL RESIDING IN MCDOUGALD TERRACE, INCLUDING PETITIONER, NOT ONLY
BECAUSE IT IS DESIGNED TO INSURE A FAIRER EVICTION PROCEDURE IN
GENERAL, BUT ALSO BECAUSE THE PRESCRIBED NOTIFICATION IS ESSENTIAL TO
REMOVE A SERIOUS IMPEDIMENT TO THE SUCCESSFUL PROTECTION OF
CONSTITUTIONAL RIGHTS. 

        IV. 

PETITIONER ARGUES THAT IN ADDITION TO HOLDING THE HUD CIRCULAR
APPLICABLE TO HER CASE, WE MUST ALSO ESTABLISH GUIDELINES TO INSURE
THAT SHE IS PROVIDED WITH NOT ONLY THE REASONS FOR HER EVICTION BUT
ALSO A HEARING THAT COMPORTS WITH THE REQUIREMENTS OF DUE PROCESS.  WE
DO NOT SIT, HOWEVER, "TO DECIDE ABSTRACT, HYPOTHETICAL OR CONTINGENT
QUESTIONS . . . OR TO DECIDE ANY CONSTITUTIONAL QUESTION IN ADVANCE OF
THE NECESSITY FOR ITS DECISION.  . . . "  /47/  THE AUTHORITY MAY BE
ABLE TO PROVIDE PETITIONER WITH REASONS THAT JUSTIFY EVICTION UNDER THE
EXPRESS TERMS OF THE LEASE.  IN THAT EVENT, SHE MAY DECIDE TO VACATE
VOLUNTARILY WITHOUT CONTESTING THE AUTHORITY'S RIGHT TO HAVE HER
REMOVED.  AND IF SHE CHALLENGES THE REASONS OFFERED, THE AUTHORITY MAY
WELL DECIDE TO AFFORD HER THE FULL HEARING SHE INSISTS IS ESSENTIAL. 
/48/  MOREOVER, EVEN IF THE AUTHORITY DOES NOT PROVIDE SUCH A HEARING,
WE HAVE NO REASON TO BELIEVE THAT ONCE PETITIONER IS TOLD THE REASONS
FOR HER EVICTION SHE CANNOT EFFECTIVELY CHALLENGE THEIR LEGAL
SUFFICIENCY IN WHATEVER EVICTION PROCEEDINGS MAY BE BROUGHT IN THE
NORTH CAROLINA COURTS.  THUS, WITH THE CASE IN THIS POSTURE, A DECISION
ON PETITIONER'S CONSTITUTIONAL CLAIMS WOULD BE PREMATURE.  /48/

              REVERSED AND REMANDED. 

/1/  "THIS LEASE SHALL BE AUTOMATICALLY RENEWED FOR SUCCESSIVE TERMS
OF ONE MONTH EACH AT THE RENTAL LAST ENTERED AND ACKNOWLEDGED BELOW.  .
. . PROVIDED, THERE IS NO CHANGE IN THE INCOME OR COMPOSITION OF THE
FAMILY OF THE TENANT AND NO VIOLATION OF THE TERMS HEREOF.  IN THE
EVENT OF ANY CHANGE IN THE COMPOSITION OR INCOME OF THE FAMILY OF THE
TENANT, RENT FOR THE PREMISES SHALL AUTOMATICALLY CONFORM TO THE RENTAL
RATES ESTABLISHED IN THE APPROVED CURRENT RENT SCHEDULE WHICH HAS BEEN
ADOPTED BY THE MANAGEMENT FOR THE OPERATION OF THIS PROJECT.  . . . " 

/2/  "THIS LEASE MAY BE TERMINATED BY THE TENANT BY GIVING TO
MANAGEMENT NOTICE IN WRITING OF SUCH TERMINATION 15 DAYS PRIOR TO THE
LAST DAY OF THE TERM.  THE MANAGEMENT MAY TERMINATE THIS LEASE BY
GIVING TO THE TENANT NOTICE IN WRITING OF SUCH TERMINATION FIFTEEN (15)
DAYS PRIOR TO THE LAST DAY OF THE TERM.  PROVIDED, HOWEVER, THAT THIS
PARAGRAPH SHALL NOT BE CONSTRUED TO PREVENT THE TERMINATION OF THIS
LEASE BY MANAGEMENT IN ANY OTHER METHOD OR FOR ANY OTHER CAUSE SET
FORTH IN THIS LEASE." 

THE HOUSING AUTHORITY CONSTRUES THIS PROVISION TO AUTHORIZE
TERMINATION UPON THE GIVING OF THE REQUIRED NOTICE EVEN IF THE TENANT
HAS NOT VIOLATED THE TERMS OF THE LEASE AND HIS INCOME AND FAMILY
COMPOSITION HAVE NOT CHANGED.  PETITIONER, HOWEVER, INSISTS THAT SINCE
THE AUTHORITY IS A GOVERNMENT AGENCY, IT MAY NOT CONSTITUTIONALLY EVICT
"FOR NO REASON AT ALL, OR FOR AN UNREASONABLE, ARBITRARY AND CAPRICIOUS
REASON.  . . . "  BRIEF FOR PETITIONER 27.  WE DO NOT, HOWEVER, REACH
THAT ISSUE IN THIS CASE.  SEE N. 49, INFRA. 

/3/  THE TEXT OF THE NOTICE IS AS FOLLOWS: 

"YOUR DWELLING LEASE PROVIDES THAT THE LEASE MAY BE CANCELLED UPON
FIFTEEN (15DAYS WRITTEN NOTICE.  THIS IS TO NOTIFY YOU THAT YOUR
DWELLING LEASE WILL BE CANCELLED EFFECTIVE AUGUST 31, 1965, AT WHICH
TIME YOU WILL BE REQUIRED TO VACATE THE PREMISES YOU NOW OCCUPY." 

/4/  ONE OF THOSE ATTEMPTS WAS MADE ON SEPTEMBER 1.  IN AN AFFIDAVIT
FILED WITH THE SUPERIOR COURT OF DURHAM COUNTY, PETITIONER ALLEGED THAT
ON THAT DAY MEMBERS OF THE HOUSING AUTHORITY MET WITH A DURHAM POLICE
DETECTIVE WHO HAD BEEN INVESTIGATING PETITIONER'S CONDUCT.  ALTHOUGH
PETITIONER'S ATTORNEY MET WITH HOUSING AUTHORITY REPRESENTATIVES ON
THIS SAME DAY TO REQUEST A HEARING, THE ATTORNEY WAS NOT INFORMED WHAT
INFORMATION HAD BEEN UNCOVERED BY THE POLICE INVESTIGATION OR WHETHER
IT HAD ANY BEARING ON PETITIONER'S EVICTION. 

/5/  ALL OF THE ESSENTIAL FACTS WERE STIPULATED IN THE SUPERIOR
COURT, INCLUDING: 

"THAT IF MR. C. S. OLDHAM, THE EXECUTIVE DIRECTOR OF THE HOUSING
AUTHORITY OF THE CITY OF DURHAM, WERE PRESENT AND DULY SWORN AND WERE
TESTIFYING, HE WOULD TESTIFY THAT WHATEVER REASON THERE MAY HAVE BEEN,
IF ANY, FOR GIVING NOTICE TO JOYCE C. THORPE OF THE TERMINATION OF HER
LEASE, IT WAS NOT FOR THE REASON THAT SHE WAS ELECTED PRESIDENT OF ANY
GROUP ORGANIZED IN MCDOUGALD TERRACE, AND SPECIFICALLY IT WAS NOT FOR
THE REASON THAT SHE WAS ELECTED PRESIDENT OF ANY GROUP ORGANIZED IN
MCDOUGALD TERRACE ON AUGUST 10, 1965.  . . . " 

/6/  267 N.C. 431, 148 S.E.2D 290 (1966). 

/7/  385 U.S. 967. 

/8/  THE FULL TEXT OF THAT CIRCULAR IS AS FOLLOWS:

        DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

        WASHINGTON, D.C.  20410    CIRCULAR    2-7-67 

OFFICE OF THE ASSISTANT SECRETARY 

FOR RENEWAL AND HOUSING ASSISTANCE 

TO:  LOCAL HOUSING AUTHORITIES ASSISTANT REGIONAL ADMINISTRATORS FOR
HOUSING ASSISTANCE HAA DIVISION AND BRANCH HEADS 

FROM:  DON HUMMEL 

SUBJECT:  TERMINATIONS OF TENANCY IN LOW-RENT PROJECTS 

WITHIN THE PAST YEAR INCREASING DISSATISFACTION HAS BEEN EXPRESSED
WITH EVICTION PRACTICES IN PUBLIC LOW-RENT HOUSING PROJECTS.  DURING
THAT PERIOD A NUMBER OF SUITS HAVE BEEN FILED THROUGHOUT THE UNITED
STATES GENERALLY CHALLENGING THE RIGHT OF A LOCAL AUTHORITY TO EVICT A
TENANT WITHOUT ADVISING HIM OF THE REASONS FOR SUCH EVICTION. 

SINCE THIS IS A FEDERALLY ASSISTED PROGRAM, WE BELIEVE IT IS
ESSENTIAL THAT NO TENANT BE GIVEN NOTICE TO VACATE WITHOUT BEING TOLD
BY THE LOCAL AUTHORITY, IN A PRIVATE CONFERENCE OR OTHER APPROPRIATE
MANNER, THE REASONS FOR THE EVICTION, AND GIVEN AN OPPORTUNITY TO MAKE
SUCH REPLY OR EXPLANATION AS HE MAY WISH. 

IN ADDITION TO INFORMING THE TENANT OF THE REASONS) FOR ANY PROPOSED
EVICTION ACTION, FROM THIS DATE EACH LOCAL AUTHORITY SHALL MAINTAIN A
WRITTEN RECORD OF EVERY EVICTION FROM ITS FEDERALLY ASSISTED PUBLIC
HOUSING.  SUCH RECORDS ARE TO BE AVAILABLE FOR REVIEW FROM TIME TO TIME
BY HUD REPRESENTATIVES AND SHALL CONTAIN THE FOLLOWING INFORMATION: 

1.  NAME OF TENANT AND IDENTIFICATION OF UNIT OCCUPIED. 

2.  DATE OF NOTICE TO VACATE. 

3.  SPECIFIC REASONS) FOR NOTICE TO VACATE.  FOR EXAMPLE, IF A
TENANT IS BEING EVICTED BECAUSE OF UNDESIRABLE ACTIONS, THE RECORD
SHOULD DETAIL THE ACTIONS WHICH RESULTED IN THE DETERMINATION THAT
EVICTION SHOULD BE INSTITUTED. 

4.  DATE AND METHOD OF NOTIFYING TENANT WITH SUMMARY OF ANY
CONFERENCES WITH TENANT, INCLUDING NAMES OF CONFERENCE PARTICIPANTS. 

5.  DATE AND DESCRIPTION OF FINAL ACTION TAKEN. 

THE CIRCULAR ON THE ABOVE SUBJECT FROM THE PHA COMMISSION, DATED MAY
31, 1966, IS SUPERSEDED BY THIS CIRCULAR. 

S/ DON HUMMEL

              ASSISTANT SECRETARY FOR RENEWAL AND HOUSING

              ASSISTANCE 

/9/  386 U.S. 670, 673-674 (1967). 

/10/  271 N.C. 468, 471, 157 S.E.2D 147, 150 (1967). 

/11/  271 N.C.,AT 470, 157 S.E.2D, AT 149. 

/12/  390 U.S. 942 (1968). 

/13/  THE SUPREME COURT OF NORTH CAROLINA STAYED THE EXECUTION OF
ITS JUDGMENT PENDING OUR DECISION.  AS A RESULT, PETITIONER HAS NOT YET
VACATED HER APARTMENT. 

/14/  UNDER SEC. 10(A) OF THE UNITED STATES HOUSING ACT OF 1937, 50
STAT. 891, AS AMENDED, 42 U.S.C. 1410(A) (1964 ED., SUPP. III), HUD IS
REQUIRED TO ENTER INTO AN ANNUAL CONTRIBUTIONS CONTRACT WITH THE LOCAL
HOUSING AUTHORITIES.  IN THAT CONTRACT, HUD GUARANTEES TO PROVIDE A
CERTAIN AMOUNT OF MONEY OVER A CERTAIN NUMBER OF YEARS. 

/15/  50 STAT. 891, AS AMENDED, 42 U.S.C. 1408 (1964 ED., SUPP.
III). 

/16/  HOUSING ASSISTANCE ADMINISTRATION, HUD, LOW-RENT MANAGEMENT
MANUAL. 

/17/  ID., SEC. O (PREFACE) (APRIL 1962). 

/18/  IBID. 

/19/  HOUSING ASSISTANCE ADMINISTRATION, HUD, LOW-RENT HOUSING
MANUAL SEC. 100.2, AT 2 (SEPT. 1963). 

/20/  IBID. 

/21/  CIRCULAR FROM COMMISSIONER MARIE C. MCGUIRE TO LOCAL
AUTHORITIES, REGIONAL DIRECTORS, AND CENTRAL OFFICE DIVISION AND BRANCH
HEADS, MAY 31, 1966. 

/22/  "(WE INTENDED IT TO BE FOLLOWED.  . . . THE CIRCULAR IS AS
BINDING IN ITS PRESENT FORM AS IT WILL BE AFTER INCORPORATION IN THE
MANUAL.  . . . HUD INTENDS TO ENFORCE THE CIRCULAR TO THE FULLEST
EXTENT OF ITS ABILITY.  . . . " 

LETTER FROM ASSISTANT SECRETARY DON HUMMEL TO MR. CHARLES S. RALSTON
OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., JULY 25, 1967. 

/23/  HUD'S CHIEF COUNSEL STATED THAT HIS "VIEWS ARE THE SAME AS
THOSE EXPRESSED" BY ASSISTANT SECRETARY HUMMEL.  LETTER FROM MR. JOSEPH
BURSTEIN TO MR. CHARLES S. RALSTON, AUG. 7, 1967. 

/24/  ACCORD, UDALL V. TALLMAN, 380 U.S. 1 (1965).  SEE ZEMEL V.
RUSK, 381 U.S. 1 (1965). 

/25/  SEE UDALL V. TALLMAN, SUPRA. 

/26/  386 U.S. 670, 673, N. 4 (1967). 

/27/  THIS RULE-MAKING POWER WAS TRANSFERRED FROM THE PUBLIC HOUSING
ADMINISTRATION TO HUD BY SEC. 5(A) OF THE DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT ACT, 79 STAT. 669, 42 U.S.C. 3534(A) (1964 ED., SUPP.
III). 

/28/  50 STAT. 891, AS AMENDED, 42 U.S.C. 1408 (1964 ED., SUPP.
III).  SUCH BROAD RULE-MAKING POWERS HAVE BEEN GRANTED TO NUMEROUS
OTHER FEDERAL ADMINISTRATIVE BODIES IN SUBSTANTIALLY THE SAME
LANGUAGE.  SEE, E.G., 72 STAT. 743, 49 U.S.C. 1324(A) (CIVIL
AERONAUTICS BOARD); 49 STAT. 647, AS AMENDED, 42 U.S.C. 1302
(DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE); 52 STAT. 830, 15 U.S.C.
717O (FEDERAL POWER COMMISSION). 

/29/  SECTION 1 OF THE UNITED STATES HOUSING ACT OF 1937, 50 STAT.
888, AS AMENDED BY SEC. 501 OF THE HOUSING ACT OF 1959, 73 STAT. 679,
42 U.S.C. 1401. 

/30/  BRIEF FOR RESPONDENT 21, 23. 

/31/  ALTHOUGH THE CONSTITUTIONAL PROHIBITION OF THE IMPAIRMENT OF
CONTRACTS, U.S. CONST. ART. I, SEC. 10, APPLIES ONLY TO THE STATES, WE
HAVE HELD THAT "(VALID CONTRACTS ARE PROPERTY, WHETHER THE OBLIGOR BE A
PRIVATE INDIVIDUAL, A MUNICIPALITY, A STATE OR THE UNITED STATES. 
RIGHTS AGAINST THE UNITED STATES ARISING OUT OF A CONTRACT WITH IT ARE
PROTECTED BY THE FIFTH AMENDMENT."  LYNCH V. UNITED STATES, 292 U.S.
571, 579 (1934). 

/32/  HOME BLDG. & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 431
(1934).  THE STATUTE CHALLENGED IN LYNCH V. UNITED STATES, SUPRA, FELL
INTO THE FIRST OF THESE TWO CATEGORIES.  IT REPEALED "ALL LAWS GRANTING
OR PERTAINING TO YEARLY RENEWABLE (WAR RISK TERM) INSURANCE.  . . . "
292 U.S.,AT 575. 

/33/  A FAR DIFFERENT CASE WOULD BE PRESENTED IF HUD WERE A PARTY TO
THIS SUIT ARGUING THAT IT COULD REPUDIATE ITS OBLIGATIONS UNDER THE
ANNUAL CONTRIBUTIONS CONTRACT BECAUSE THE AUTHORITY HAD FAILED TO APPLY
THE CIRCULAR.  CF. LYNCH V. UNITED STATES, SUPRA. 

/34/  CF. HOME BLDG. & LOAN ASSN. V. BLAISDELL, SUPRA, AT 425. 

/35/  PENNIMAN'S CASE, 103 U.S. 714, 720 (1881).  SEE EL PASO V.
SIMMONS, 379 U.S. 497, AT 508 (1965); HOME BLDG. & LOAN ASSN. V.
BLAISDELL, SUPRA. 

WE HAVE CONSISTENTLY UPHELD LEGISLATION THAT AFFECTS CONTRACT RIGHTS
FAR MORE SUBSTANTIALLY THAN DOES THE HUD CIRCULAR.  E.G., EL PASO V.
SIMMONS, SUPRA, UPHELD A STATE STATUTE THAT PLACED A TIME LIMIT ON THE
RIGHT TO REINSTATE A CLAIM IN PREVIOUSLY FORFEITED PUBLIC LANDS; EAST
N.Y. SAV. BANK V. HAHN, 326 U.S. 230 (1945), UPHELD A NEW YORK STATUTE
SUSPENDING MORTGAGE FORECLOSURES FOR THE 10TH YEAR IN SUCCESSION; AND
BLAISDELL UPHELD A STATUTE THAT EXTENDED MORTGAGORS'  REDEMPTION TIME. 

THERE IS NO REASON WHY THE PRINCIPLES THAT CONTROL LEGISLATION THAT
AFFECTS CONTRACTUAL RIGHTS.  CF. PERMIAN BASIN AREA RATE CASES, 390
U.S. 747, 779-780 (1968), WHICH UPHELD A FEDERAL POWER COMMISSION ORDER
LIMITING THE APPLICATION OF "ESCALATION CLAUSES" IN CONTRACTS FOR THE
SALE OF NATURAL GAS; AND 24 CFR SECS. 1.1-1.12 (1968), WHICH PROSCRIBE
A WIDE RANGE OF RACIALLY DISCRIMINATORY PRACTICES BY BOTH GOVERNMENTAL
AND PRIVATE INTERESTS THAT RECEIVE ANY FEDERAL FINANCIAL ASSISTANCE
WHETHER OR NOT PURSUANT TO A PREEXISTING CONTRACT.  THIS REGULATION WAS
PROMULGATED UNDER SEC. 602 OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT.
252, 42 U.S.C. 200D-1, WHICH DIRECTS EACH FEDERAL AGENCY THAT
ADMINISTERS FEDERAL FINANCIAL ASSISTANCE "BY WAY OF GRANT, LOAN, OR
CONTRACT OTHER THAN A CONTRACT OF INSURANCE OR GUARANTY . . . TO
EFFECTUATE THE PROVISIONS OF SECTION 601 (WHICH PROHIBITS RACIAL
DISCRIMINATION IN THE ADMINISTRATION OF ANY PROGRAM RECEIVING FEDERAL
FINANCIAL ASSISTANCE) . . . BY ISSUING RULES, REGULATIONS, OR ORDERS OF
GENERAL APPLICABILITY WHICH SHALL BE CONSISTENT WITH ACHIEVEMENT OF THE
OBJECTIVES OF THE STATUTE AUTHORIZING THE FINANCIAL ASSISTANCE IN
CONNECTION WITH WHICH THE ACTION IS TAKEN." 

/36/  SEE, E.G., FCC V. SCHREIBER, 381 U.S. 279, 289-294 (1965);
AMERICAN TRUCKING ASSNS., INC. V. UNITED STATES, 344 U.S. 298 (1953). 

/37/  SECTION 2 OF THE HOUSING ACT OF 1949, 63 STAT. 413, 42 U.S.C.
1441.  THAT SECTION FURTHER DIRECTS ALL AGENCIES OF THE FEDERAL
GOVERNMENT "HAVING POWERS, FUNCTIONS, OR DUTIES WITH RESPECT TO HOUSING
. . . (TO) EXERCISE THEIR POWERS, FUNCTIONS, AND DUTIES UNDER THIS OR
ANY OTHER LAW, CONSISTENTLY WITH THE NATIONAL HOUSING POLICY DECLARED
BY THIS ACT.  . . . "  IBID. 

/38/  "A CHANGE IN THE LAW BETWEEN A NISI PRIUS AND AN APPELLATE
DECISION REQUIRES THE APPELLATE COURT TO APPLY THE CHANGED LAW." 
ZIFFRIN, INC. V. UNITED STATES, 318 U.S. 73, 78 (1943).  ACCORD, E.G.,
VANDENBARK V. OWENS-ILLINOIS GLASS CO., 311 U.S. 539 (1941); UNITED
STATES V. CHAMBERS, 291 U.S. 217 (1934). 

/39/  UNITED STATES V. SCHOONER PEGGY, 1 CRANCH 103, 110 (1801). 

/40/  SEE, E.G., UNITED STATES V. CHAMBERS, SUPRA. 

/41/  SEE, E.G., CARPENTER V. WABASH R. CO., 309 U.S. 23 (1940). 

/42/  SEE, E.G., VANDENBARK V. OWENS-ILLINOIS GLASS CO., SUPRA. 

/43/  SEE GREENE V. UNITED STATES, 376 U.S. 149 (1964), IN WHICH WE
HELD THAT THE PETITIONER'S RIGHT TO RECOVER LOST PAY FOR A WRONGFUL
DISCHARGE WAS "VESTED" AS A RESULT OF OUR EARLIER DECISION IN GREENE V.
MCELROY, 360 U.S. 474 (1959), WHICH WE CONSTRUED TO HAVE MADE A "FINAL"
AND "FAVORABLE" DETERMINATION, 376 U.S.,AT 159, THAT PETITIONER HAD
BEEN WRONGFULLY DEPRIVED OF HIS EMPLOYMENT. 

/44/  "WE DO NOT CONTEND THAT, IN THE CASE OF HOUSING AUTHORITY
LEASES IF THE PURPOSE OF THE NOTICE OF TERMINATION OF THE LEASE IS TO
PROSCRIBE THE EXERCISE OF A CONSTITUTIONAL RIGHT BY THE TENANT THE
NOTICE WOULD BE EFFECTIVE; THE NOTICE WOULD BE INVALID, AND THE TERM OF
THE LEASE AND ITS AUTOMATIC RENEWAL WOULD NOT THEREBY BE AFFECTED." 
BRIEF FOR RESPONDENT 11. 

/45/  SEE GENERALLY THORPE V. HOUSING AUTHORITY OF THE CITY OF
DURHAM, 386 U.S. 670, 674-681 (1967) (DOUGLAS, J., CONCURRING). 

/46/  TRANSCRIPT OF ARGUMENT 28.  DEPISTE THIS ADMISSION, COUNSEL
FOR THE AUTHORITY INSISTED THROUGHOUT HIS ORAL ARGUMENT THAT HUD HAS NO
POWER TO REQUIRE COMPLIANCE WITH THE CIRCULAR.  SEE ID., AT 26-27, 28,
30-32, 48-49.  HE EVEN EXPRESSLY SUGGESTED THAT THE AUTHORITY COULD
DEPART FROM ITS REQUIREMENTS "WITHOUT VIOLATING ANY KIND OF FEDERAL
LAW."  ID., AT 48. 

/47/  ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450,
461 (1945).  CF. ZEMEL V. RUSK, SUPRA, AT 18-20; UNITED STATES V.
FRUEHAUF, 365 U.S. 146 (1961). 

/48/  MOREOVER, IF THE PROCEDURE FOLLOWED BY THE AUTHORITY PROVES
INADEQUATE, HUD MAY WELL DECIDE TO PROVIDE FOR AN APPROPRIATE HEARING. 
CF. 24 CFR SECS. 1.1-1.12 (1968), WHICH ESTABLISH A DETAILED PROCEDURE
TO DISPOSE OF COMPLAINTS OF RACIAL DISCRIMINATION IN ANY FEDERALLY
ASSISTED PROGRAM. 

/49/  THESE SAME CONSIDERATIONS LEAD US TO CONCLUDE THAT IT WOULD BE
EQUALLY PREMATURE FOR US TO REACH A DECISION ON PETITIONER'S CONTENTION
THAT IT WOULD VIOLATE DUE PROCESS FOR THE AUTHORITY TO EVICT HER
ARBITRARILY.  THAT ISSUE CAN BE MORE APPROPRIATELY CONSIDERED IF
PETITIONER IS IN FACT EVICTED ARBITRARILY.  SEE ALABAMA STATE
FEDERATION OF LABOR V. MCADORY, SUPRA. 

MR. JUSTICE BLACK, CONCURRING. 

THE COURT HERE USES A CANNON TO DISPOSE OF A CASE THAT CALLS FOR NO
MORE THAN A POPGUN.  THE DURHAM HOUSING AUTHORITY HAS CLEARLY STATED,
BOTH IN ITS BRIEF AND AT ORAL ARGUMENT, THAT IT IS FULLY COMPLYING WITH
THE DIRECTIVE OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
CONCERNING NOTICE TO TENANTS OF REASONS FOR THEIR EVICTION.  THE ONLY
POSSIBLE ISSUE THEREFORE IS WHETHER THE DIRECTIVE SHOULD APPLY TO MRS.
THORPE, AGAINST WHOM EVIDENCE PROCEEDINGS WERE STARTED PRIOR TO THE
EFFECTIVE DATE OF THE HUD MEMORANDUM BUT WHO IS STILL RESIDING IN
PUBLIC HOUSING, AS A RESULT OF JUDICIAL STAYS.  I AGREE, OF COURSE,
THAT THE DIRECTIVE SHOULD APPLY TO HER EVICTION.  NOTHING ELSE NEED BE
DECIDED. 

JAMES M. NABRIT III ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE JACK GREENBERG, CHARLES STEPHEN RALSTON, CHARLES H.
JONES, JR., ANTHONY G. AMSTERDAM, AND WILLIAM BENNETT TURNER. 

DANIEL K. EDWARDS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WAS WILLIAM Y. MANSON. 
..END :


















UNITED STATES V. NARDELLO, 393 U.S. 286 


       UNITED STATES V. NARDELLO ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

      DISTRICT OF PENNSYLVANIA. 

        NO. 51.  ARGUED NOVEMBER 12, 1968.-- DECIDED JANUARY 13,

           1969. 


APPELLEES WERE INDICTED FOR VIOLATING 18 U.S.C. 1952, WHICH PROHIBITS
TRAVEL IN INTERSTATE COMMERCE WITH INTENT TO CARRY ON "EXTORTION" IN
VIOLATION OF THE LAWS OF THE STATE IN WHICH COMMITTED, THE STATUTE
ENTITLED "EXTORTION" APPLIES ONLY TO PUBLIC OFFICIALS, WHILE OTHER
STATUTES PROHIBIT VARIOUS ASPECTS OF "BLACK-MAIL."  THE "BLACKMAIL"
LAWS, WHICH COVER APPELLEES' ALLEGED ACTIVITIES, EACH DEFINE THE
OFFENSE AS AN ACT COMMITTED WITH INTENT "TO EXTORT."  THE DISTRICT
COURT, BELIEVING THAT THE TERM EXTORTION WAS INTENDED "TO TRACK CLOSELY
THE LEGAL UNDERSTANDING UNDER STATE LAW," CONCLUDED THAT THE OFFENSE OF
EXTORTION COULD ONLY BE COMMITTED BY PUBLIC OFFICIALS, AND DISMISSED
THE INDICTMENT AGAINST APPELLEES, WHO WERE NOT PUBLIC OFFICIALS.  THE
GOVERNMENT APPEALED.  HELD:  IN LIGHT OF THE CONGRESSIONAL PURPOSE TO
ASSIST LOCAL LAW ENFORCEMENT OFFICIALS IN COMBATING INTERSTATE
ACTIVITIES OF ORGANIZED CRIME WHICH VIOLATE STATE LAWS, AND NOT MERELY
TO ELIMINATE ONLY THOSE ACTS WHICH A STATE HAS DENOMINATED EXTORTION,
THE EXTORTIONATE ACTS FOR WHICH APPELLEES WERE INDICTED, WHICH WERE
PROHIBITED BY PENNSYLVANIA LAW, FALL WITHIN THE GENERIC TERM
"EXTORTION" AS USED IN 18 U.S.C. 1952.  PP. 289-296. 

278 F.SUPP.  711, REVERSED AND REMANDED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS SOLELY A QUESTION OF STATUTORY CONSTRUCTION:
WHETHER 18 U.S.C. 1951, /1/  PROHIBITING TRAVEL IN INTERSTATE COMMERCE
WITH INTENT TO CARRY ON "EXTORTION" IN VIOLATION OF THE LAWS OF THE
STATE IN WHICH COMMITTED, APPLIES TO EXTORTIONATE CONDUCT CLASSIFIED AS
"BLACKMAIL" RATHER THAN "EXTORTION" IN THE APPLICABLE STATE PENAL
CODE.  WE BELIEVE THAT SEC. 1952 (HEREINAFTER "THE TRAVEL ACT") IS
APPLICABLE AND THUS MUST REVERSE THE COURT BELOW. 

APPELLEES WERE INDICTED UNDER SEC. 1952 FOR THEIR ALLEGED
PARTICIPATION IN A "SHAKEDOWN" OPERATION WHEREBY INDIVIDUALS WOULD BE
LURED INTO A COMPROMISING HOMOSEXUAL SITUATION AND THEN THREATENED WITH
EXPOSURE UNLESS APPELLEES' SILENCE WAS PURCHASED.  THE INDICTMENTS
CHARGED THAT APPELLEES TRAVELED IN INTERSTATE COMMERCE ON THREE
SEPARATE OCCASIONS, TWICE FROM NEW JERSEY TO PHILADELPHIA AND ONCE FROM
CHICAGO TO PHILADELPHIA, TO PROMOTE THEIR ACTIVITIES.  SPECIFICALLY,
THE INDICTMENTS REFERRED TO "THE UNLAWFUL ACTIVITY OF BLACKMAIL, IN
VIOLATION OF THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA." 

THE DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DISMISSED THE INDICTMENTS, BASING ITS DECISION UPON PENNSYLVANIA
STATUTES WHICH CLASSIFY CERTAIN ACTS AS "EXTORTION" AND OTHERS AS
VARIOUS ASPECTS OF "BLACKMAIL."  IN PENNSYLVANIA, THE STATUTE ENTITLED
"EXTORTION" IS APPLICABLE ONLY TO THE CONDUCT OF PUBLIC OFFICIALS.  PA.
STAT. ANN., TIT. 18, SEC. 4318 (1963).  THREE OTHER PENNSYLVANIA
STATUTES, PA. STAT. ANN., TIT. 18, SECS. 4801-4803 (1963), PROHIBIT
"BLACKMAIL," "BLACKMAIL BY INJURY TO REPUTATION OR BUSINESS," AND
"BLACKMAIL BY ACCUSATION OF HEINOUS CRIME."  EACH OF THESE THREE
STATUTES DEFINES THE PROHIBITED OFFENSE AS, INTER ALIA, AN ACT
COMMITTED WITH AN INTENT "TO EXTORT."  THE DISTRICT COURT BELIEVED THAT
THE TERM EXTORTION AS USED IN THE TRAVEL ACT WAS INTENDED "TO TRACK
CLOSELY THE LEGAL UNDERSTANDING UNDER STATE LAW."  278 F.SUPP.  711,
712 (1968).  REASONING FROM THIS PREMISE, THE COURT CONCLUDED THAT IN
PENNSYLVANIA THE OFFENSE OF EXTORTION WAS COVERED ONLY BY PA. STAT.
ANN., TIT. 18, SEC. 4318, A STATUTE WHICH REQUIRED THAT THE ACCUSED BE
A PUBLIC OFFICIAL.  SINCE APPELLEES WERE NOT PUBLIC OFFICIALS, THE
INDICTMENT WAS THEREFORE DEFECTIVE.  /2/  THE UNITED STATES APPEALED
DIRECTLY TO THIS COURT PURSUANT TO 18 U.S.C. 3731 AND PROBABLE
JURISDICTION WAS NOTED.  392 U.S. 923 (1968). 

ALTHOUGH CONGRESS DIRECTED THAT CONTENT SHOULD BE GIVEN TO THE TERM
"EXTORTION" IN SEC. 1952 BY RESORT TO STATE LAW, IT OTHERWISE LEFT THAT
TERM UNDEFINED.  /3/  AT COMMON LAW A PUBLIC OFFICIAL WHO UNDER COLOR
OF OFFICE OBTAINED THE PROPERTY OF ANOTHER NOT DUE EITHER TO THE OFFICE
OR THE OFFICIAL WAS GUILTY OF EXTORTION.  /4/  IN MANY STATES, HOWEVER,
THE CRIME OF EXTORTION HAS BEEN STATUTORILY EXPANDED TO INCLUDE ACTS BY
PRIVATE INDIVIDUALS UNDER WHICH PROPERTY IS OBTAINED BY MEANS OF FORCE,
FEAR, OR THREATS.  SEE CAL. PENAL CODE SEC. 519 (1955); N.J. STAT. ANN.
SEC. 2A:105-3, SEC. 2A:105-4 (1953); 3 F. WHARTON'S CRIMINAL LAW AND
PROCEDURE SEC. 1396 (R. ANDERSON ED. 1957).  OTHERS, SUCH AS
PENNSYLVANIA, RETAIN THE COMMON-LAW DEFINITION OF EXTORTION BUT
PROHIBIT CONDUCT FOR WHICH APPELLEES WERE CHARGED UNDER OTHER
STATUTES.  /5/  AT LEAST ONE STATE DOES NOT DENOMINATE ANY SPECIFIC ACT
AS EXTORTION BUT PROHIBITS APPELLEES' TYPE OF ACTIVITIES UNDER THE
GENERAL HEADING OF OFFENSES DIRECTED AGAINST PROPERTY.  SEE ILL. REV.
STAT., C. 38, SEC. 15-5 (1967). 

FACED WITH THIS DIVERSITY, APPELLEES CONTEND ALTERNATIVELY THAT
CONGRESS INTENDED EITHER THAT EXTORTION WAS TO BE APPLIED IN ITS COMMON
LAW SENSE OR THAT, WHERE A STATE DOES HAVE A STATUTE SPECIFICALLY
PROHIBITING EXTORTION, THEN THAT STATUTE ALONE IS ENCOMPASSED BY SEC.
1952.  THE GOVERNMENT, ON THE OTHER HAND, SUGGESTS THAT CONGRESS
INTENDED THAT EXTORTION SHOULD REFER TO THOSE ACTS PROHIBITED BY STATE
LAW WHICH WOULD BE GENERICALLY CLASSIFIED AS EXTORTIONATE, I.E.,
OBTAINING SOMETHING OF VALUE FROM ANOTHER WITH HIS CONSENT INDUCED BY
THE WRONGFUL USE OF FORCE, FEAR, OR THREATS.  /6/ 

THE TRAVEL ACT FORMED PART OF ATTORNEY GENERAL KENNEDY'S LEGISLATIVE
PROPOSALS TO COMBAT ORGANIZED CRIME.  SEE HEARINGS ON S. 1653-1658, S.
1665 BEFORE THE SENATE JUDICIARY COMMITTEE ON THE ATTORNEY GENERAL'S
PROGRAM TO CURB ORGANIZED CRIME AND RACKETEERING, 87TH CONG., 1ST SESS.
(1961).  THE ATTORNEY GENERAL TOLD THE SENATE COMMITTEE THAT THE
PURPOSE OF THE TRAVEL ACT WAS TO AID LOCAL LAW ENFORCEMENT OFFICIALS. 
IN MANY INSTANCES THE "TOP MEN" OF A GIVEN CRIMINAL OPERATION RESIDED
IN ONE STATE BUT CONDUCTED THEIR ILLEGAL ACTIVITIES IN ANOTHER; BY
CREATING A FEDERAL INTEREST IN LIMITING THE INTERSTATE MOVEMENT
NECESSARY TO SUCH OPERATIONS, CRIMINAL CONDUCT BEYOND THE REACH OF
LOCAL OFFICIALS COULD BE CONTROLLED.  ID., AT 15-17.  /7/  THE ATTORNEY
GENERAL'S CONCERNS WERE REFLECTED IN THE SENATE COMMITTEE REPORT
FAVORING ADOPTION OF THE TRAVEL ACT.  THE REPORT, AFTER NOTING THE
COMMITTEE'S BELIEF THAT LOCAL LAW ENFORCEMENT EFFORTS WOULD BE ENHANCED
BY THE TRAVEL ACT, QUOTED FROM THE ATTORNEY GENERAL'S SUBMISSION
LETTER:  "OVER THE YEARS AN EVER-INCREASING PORTION OF OUR NATIONAL
RESOURCES HAS BEEN DIVERTED INTO ILLICIT CHANNELS.  BECAUSE MANY
RACKETS ARE CONDUCTED BY HIGHLY ORGANIZED SYNDICATES WHOSE INFLUENCE
EXTENDS OVER STATE AND NATIONAL BORDERS, THE FEDERAL GOVERNMENT SHOULD
COME TO THE AID OF LOCAL LAW ENFORCEMENT AUTHORITIES IN AN EFFORT TO
STEM SUCH ACTIVITY."  S. REP. NO. 644, 87TH CONG., 1ST SESS., 4
(1961).  THE MEASURE WAS PASSED BY THE SENATE AND SUBSEQUENTLY BECAME
SEC. 1952.  /8/ 

THE HOUSE VERSION OF THE TRAVEL ACT CONTAINED AN AMENDMENT
UNACCEPTABLE TO THE JUSTICE DEPARTMENT.  THE SENATE BILL DEFINED
"UNLAWFUL ACTIVITY" AS "ANY BUSINESS ENTERPRISE INVOLVING GAMBLING,
LIQUOR . . . NARCOTICS, OR PROSTITUTION OFFENSES IN VIOLATION OF THE
LAWS OF THE STATE . . . OR . . . EXTORTION OR BRIBERY IN VIOLATION OF
THE LAWS OF THE STATES."  S. REP. NO. 644, 87TH CONG., 1ST SESS., 2
(1961).  HOWEVER, THE HOUSE AMENDMENT, BY DEFINING "UNLAWFUL ACTIVITY"
AS "ANY BUSINESS ENTERPRISE INVOLVING GAMBLING, LIQUOR, NARCOTICS, OR
PROSTITUTION OFFENSES OR EXTORTION OR BRIBERY IN CONNECTION WITH SUCH
OFFENSES IN VIOLATION OF THE LAWS OF THE STATE," REQUIRED THAT
EXTORTION BE CONNECTED WITH A BUSINESS ENTERPRISE INVOLVING THE OTHER
ENUMERATED OFFENSES.  H.R. REP. NO. 966, 87TH CONG., 1ST SESS., 1
(1961).  IN A LETTER TO THE CHAIRMAN OF THE HOUSE JUDICIARY COMMITTEE
THE JUSTICE DEPARTMENT OBJECTED THAT THE HOUSE AMENDMENT ELIMINATED
FROM COVERAGE OF THE TRAVEL ACT OFFENSES SUCH AS "SHAKEDOWN RACKETS,"
"SHYLOCKING" AND LABOR EXTORTION WHICH WERE TRADITIONAL SOURCES OF
INCOME FOR ORGANIZED CRIME.  /9/  THE HOUSE-SENATE CONFERENCE COMMITTEE
ACCEPTED THE SENATE VERSION.  SEE H.R. CONF. REP. NO. 1161, 87TH CONG.,
1ST SESS. (1961). 

THE TRAVEL ACT, PRIMARILY DESIGNED TO STEM THE "CLANDESTINE FLOW OF
PROFITS" AND TO BE OF "MATERIAL ASSISTANCE TO THE STATES IN COMBATING
PERNICIOUS UNDERTAKINGS WHICH CROSS STATE LINES,"  /10/  THUS REFLECTS
A CONGRESSIONAL JUDGMENT THAT CERTAIN ACTIVITIES OF ORGANIZED CRIME
WHICH WERE VIOLATIVE OF STATE LAW HAD BECOME A NATIONAL PROBLEM.  THE
LEGISLATIVE RESPONSE WAS TO BE COMMENSURATE WITH THE SCOPE OF THE
PROBLEM.  APPELLEES SUGGEST, HOWEVER, THAT CONGRESS INTENDED THAT THE
COMMON-LAW MEANING OF EXTORTION-- CORRUPT ACTS BY A PUBLIC OFFICIAL--
BE RETAINED.  IF CONGRESS SO INTENDED, THEN SEC. 1952 WOULD COVER
EXTORTIONATE ACTS ONLY WHEN THE EXTORTIONIST WAS ALSO A PUBLIC
OFFICIAL.  NOT ONLY WOULD SUCH A CONSTRUCTION CONFLICT WITH THE
CONGRESSIONAL DESIRE TO CURB THE ACTIVITIES OF ORGANIZED CRIME RATHER
THAN MERELY ORGANIZED CRIMINALS WHO WERE ALSO PUBLIC OFFICIALS, BUT
ALSO SEC. 1952 IMPOSES PENALTIES UPON ANY INDIVIDUAL CROSSING STATE
LINES OR USING INTERSTATE FACILITIES FOR ANY OF THE STATUTORILY
ENUMERATED OFFENSES.  THE LANGUAGE OF THE TRAVEL ACT, "WHOEVER" CROSSES
STATE LINES OR USES INTERSTATE FACILITIES, INCLUDES PRIVATE PERSONS AS
WELL AS PUBLIC OFFICIALS.  /11/ 

APPELLEES ARGUE THAT CONGRESS' DECISION NOT TO DEFINE EXTORTION
COMBINED WITH ITS DECISION TO PROHIBIT ONLY EXTORTION IN VIOLATION OF
STATE LAW COMPELS THE CONCLUSION THAT PECULIAR VERSIONS OF STATE
TERMINOLOGY ARE CONTROLLING.  SINCE IN PENNSYLVANIA A DISTINCTION IS
MAINTAINED BETWEEN EXTORTION AND BLACKMAIL WITH ONLY THE LATTER TERM
COVERING APPELLEES' ACTIVITIES, /12/  IT FOLLOWS THAT THE TRAVEL ACT
DOES NOT REACH THE CONDUCT CHARGED.  THE FALLACY OF THIS CONTENTION
LIES IN ITS ASSUMPTION THAT, BY DEFINING EXTORTION WITH REFERENCE TO
STATE LAW, CONGRESS ALSO INCORPORATED STATE LABELS FOR PARTICULAR
OFFENSES.  CONGRESS' INTENT WAS TO AID LOCAL LAW ENFORCEMENT OFFICIALS,
NOT TO ERADICATE ONLY THOSE EXTORTIONATE ACTIVITIES WHICH ANY GIVEN
STATE DENOMINATED EXTORTION.  INDIANA PROHIBITS APPELLEES' TYPE OF
CONDUCT UNDER THE HEADING OF THEFT, IND. ANN. STAT. SEC. 10-3030 (SUPP.
1968); KANSAS TERMS SUCH CONDUCT ROBBERY IN THE THIRD DEGREE, KAN.
STAT. ANN. SEC. 21-529 (1964); MINNESOTA CALLS IT COERCION, MINN. STAT.
SEC. 609.27 (1967); AND WISCONSIN BELIEVES THAT IT SHOULD BE CLASSIFIED
UNDER THREATS, WIS. STAT. SEC. 943.30 (1965).  STATES SUCH AS
MASSACHUSETTS, MASS. GEN. LAWS ANN., C. 265, SEC. 25 (1959), MICHIGAN,
MICH. COMP. LAWS SEC. 750.213 (1948), MICH. STAT. ANN. SEC. 28.410
(1962), AND OREGON, ORE.  REV.  STAT. SEC. 163.480 (1968), HAVE ENACTED
MEASURES COVERING SIMILAR ACTIVITIES; EACH OF THESE STATUTES CONTAINS
IN ITS TITLE THE TERM EXTORTION.  GIVING CONTROLLING EFFECT TO STATE
CLASSIFICATIONS WOULD RESULT IN COVERAGE UNDER SEC. 1952 IF APPELLEES'
ACTIVITIES WERE CENTERED IN MASSACHUSETTS, MICHIGAN, OR OREGON, BUT
WOULD DENY COVERAGE IN INDIANA, KANSAS, MINNESOTA, OR WISCONSIN
ALTHOUGH EACH OF THESE STATES PROHIBITS IDENTICAL CRIMINAL ACTIVITIES. 

A STRIKING ILLUSTRATION IS PRESENTED BY UNITED STATES V. SCHWARTZ,
398 F.2D 464 (C.A. 7TH CIR. 1968), PET. FOR CERT, PENDING, SUB NOM.
PYNE V. UNITED STATES, /12A/  NO. 507, 1968 TERM.  SCHWARTZ AND A
CODEFENDANT WERE ACCUSED OF PARTICIPATING IN A VENTURE IDENTICAL TO
THAT IN WHICH APPELLEES ALLEGEDLY PARTICIPATED, I.E., LURING A
BUSINESSMAN INTO A COMPROMISING SITUATION AND THEN DEMANDING A PAYOFF. 
THE INDICTMENT CHARGED THAT SCHWARTZ TRAVELED TO UTAH TO PROMITE
EXTORTIONATE ACTIVITIES ILLEGAL UNDER UTAH CODE ANN. SEC. 76-19-1
(1953), A STATUTE CAPTIONED EXTORTION.  PENNSYLVANIA PROHIBITS THIS
CONDUCT UNDER ITS BLACKMAIL STATUTES.  CONGRESS INTENDED THAT THE
TRAVEL ACT WOULD SUPPORT LOCAL LAW ENFORCEMENT EFFORTS BY ALLOWING THE
FEDERAL GOVERNMENT TO REACH INTERSTATE ASPECTS OF EXTORTION.  WE CAN
DISCERN NO REASON WHY CONGRESS WOULD WISH TO HAVE SEC. 1952 AID LOCAL
LAW ENFORCEMENT EFFORTS IN UTAH BUT TO DENY THAT AID TO PENNSYLVANIA
WHEN BOTH STATES HAVE STATUTES COVERING THE SAME OFFENSE.  WE THEREFORE
CONCLUDE THAT THE INQUIRY IS NOT THE MANNER IN WHICH STATES CLASSIFY
THEIR CRIMINAL PROHIBITIONS BUT WHETHER THE PARTICULAR STATE INVOLVED
PROHIBITS THE EXTORTIONATE ACTIVITY CHARGED. 

APPELLEES DO NOT DISPUTE THAT PENNSYLVANIA PROHIBITS THE CONDUCT FOR
WHICH THEY WERE INDICTED.  ACCEPTING OUR CONCLUSION THAT CONGRESS DID
NOT INTEND TO LIMIT THE COVERAGE OF SEC. 1952 BY REFERENCE TO STATE
CLASSIFICATIONS, APPELLEES NEVERTHELESS INSIST THAT THEIR ACTIVITIES
WERE NOT EXTORTIONATE.  THE BASIS FOR THIS CONTENTION IS AN ASSERTED
DISTINCTION BETWEEN BLACKMAIL AND EXTORTION:  THE FORMER INVOLVES TWO
PRIVATE PARTIES WHILE THE LATTER REQUIRES THE PARTICIPATION OF A PUBLIC
OFFICIAL.  AS PREVIOUSLY DISCUSSED, REVENUE-PRODUCING MEASURES SUCH AS
SHAKEDOWN RACKETS AND LOAN-SHARKING WERE CALLED TO THE ATTENTION OF
CONGRESS AS METHODS UTILIZED BY ORGANIZED CRIME TO GENERATE INCOME. 
THESE ACTIVITES ARE TRADITIONALLY CONDUCTED BETWEEN PRIVATE PARTIES
WHEREBY FUNDS ARE OBTAINED FROM THE VICTIM WITH HIS CONSENT PRODUCED BY
THE USE OF FORCE, FEAR, OR THREATS.  /13/  PROSECUTIONS UNDER THE
TRAVEL ACT FOR EXTORTIONATE OFFENSES INVOLVING ONLY PRIVATE INDIVIDUALS
HAVE BEEN CONSISTENTLY MAINTAINED.  SEE UNITED STATES V. HUGHES, 389
F.2D 535 (C.A.2D CIR. 1968); MCINTOSH V. UNITED STATES, 385 F.2D 274
(C.A. 8TH CIR. 1967); MARSHALL V. UNITED STATES, 355 F.2D 999 (C.A. 9TH
CIR.), CERT, DENIED, 385 U.S. 815 (1966).  APPELLEES, ACCORDING TO THE
COURT BELOW, ATTEMPTED TO OBTAIN MONEY FROM THEIR VICTIMS BY THREATS TO
EXPOSE ALLEGED HOMOSEXUAL CONDUCT.  ALTHOUGH ONLY PRIVATE INDIVIDUALS
ARE INVOLVED, THE INDICTMENT ENCOMPASSES A TYPE OF ACTIVITY GENERALLY
KNOWN AS EXTORTIONATE SINCE MONEY WAS TO BE OBTAINED FROM THE VICTIM BY
VIRTUE OF FEAR AND THREATS OF EXPOSURE.  IN LIGHT OF THE SCOPE OF THE
CONGRESSIONAL PURPOSE WE DECLINE TO GIVE THE TERM "EXTORTION" AN
UNNATURALLY NARROW READING, CF. UNITED STATES V. FABRIZIO.  385 U.S.
263, 266-267 (1966), AND THUS CONCLUDE THAT THE ACTS FOR WHICH
APPELLEES HAVE BEEN INDICTED FALL WITHIN THE GENERIC TERM EXTORTION AS
USED IN THE TRAVEL ACT. 

THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA IS REVERSED AND THE CASE REMANDED TO THAT
COURT FUR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
  IT IS SO ORDERED. 

/1/  SECTION 1952 PROVIDES: 

"(A) WHOEVER TRAVELS IN INTERSTATE OR FOREIGN COMMERCE OR USES ANY
FACILITY IN INTERSTATE OR FOREIGN COMMERCE, INCLUDING THE MAIL, WITH
INTENT TO-- 

"(1) DISTRIBUTE THE PROCEEDS OF ANY UNLAWFUL ACTIVITY; OR 

"(2) COMMIT ANY CRIME OF VIOLENCE TO FURTHER ANY UNLAWFUL ACTIVITY;
OR 

"(3) OTHERWISE PROMOTE, MANAGE, ESTABLISH, CARRY ON, OR FACILITATE
THE PROMOTION, MANAGEMENT, ESTABLISHMENT, OR CARRYING ON, OF ANY
UNLAWFUL ACTIVITY, AND THEREAFTER PERFORMS OR ATTEMPTS TO PERFORM ANY
OF THE ACTS SPECIFIED IN SUBPARAGRAPHS (1), (2), AND (3), SHALL BE
FINED NOT MORE THAN $10,000 OR IMPRISONED FOR NOT MORE THAN FIVE YEARS,
OR BOTH. 

"(B) AS USED IN THIS SECTION 'UNLAWFUL ACTIVITY' MEANS (1) ANY
BUSINESS ENTERPRISE INVOLVING GAMBLING, LIQUOR ON WHICH THE FEDERAL
EXCISE TAX HAS NOT BEEN PAID, NARCOTICS, OR PROSTITUTION OFFENSES IN
VIOLATION OF THE LAWS OF THE STATE IN WHICH THEY ARE COMMITTED OR OF
THE UNITED STATES, OR (2) EXTORTION, BRIBERY, OR ARSON IN VIOLATION OF
THE LAWS OF THE STATE IN WHICH COMMITTED OR OF THE UNITED STATES." 
(1964 ED. AND SUPP. III.) 

/2/  THIS CONCLUSION IMPLIEDLY CONFLICTS WITH AT LEAST TWO OTHER
CASES IN WHICH PROSECUTIONS OF PRIVATE INDIVIDUALS FOR EXTORTION
VIOLATIVE OF THE TRAVEL ACT WERE SUCCESSFULLY MAINTAINED IN STATES
HAVING A STATUTORY STRUCTURE SIMILAR TO THAT FOUND IN PENNSYLVANIA. 
SEE UNITED STATES V. HUGHES, 389 F.2D 535 (C.A.2D CIR. 1968); MCINTOSH
V. UNITED STATES, 385 F.2D 274 (C.A. 8TH CIR. 1967).  HUGHES INVOLVED
APROSECUTION PURSUANT TO NORTH CAROLINA STATUTES, ONE OF WHICH
PROHIBITS EXTORTION BY A PUBLIC OFFICIAL, N.C. GEN. STAT. SEC. 66-7
(1965), WHILE A SECOND COVERS BLACKMAILING, N.C. GEN. STAT. SEC. 14-118
(1953).  HUGHES WAS CHARGED WITH INVOLVEMENT IN A SCHEME IDENTICAL TO
THAT IN WHICH APPELLEES ALLEGEDLY PARTICIPATED.  MCINTOSH, INVOLVING
MISSOURI LAW, WAS A PROSECUTION UNDER MO. REV. STAT. SEC. 560.130
(1959), A PROHIBITION OF THREATS WITH INTENT TO EXTORT.  HOWEVER,
MISSOURI ALSO PROHIBITS EXTORTION BY CERTAIN STATE OFFICIALS.  SEE MO.
REV. STAT. SEC. 29.360 (STATE AUDITOR), SEC. 30.420 (STATE TREASURER)
(1959). 

/3/  CF. THE HOBBS ACT, 18 U.S.C. 1951(B)(2), WHICH DEFINES
EXTORTION AS "THE OBTAINING OF PROPERTY FROM ANOTHER, WITH HIS CONSENT,
INDUCED BY WRONGFUL USE OF ACTUAL OR THREATENED FORCE, VIOLENCE, OR
FEAR, OR UNDER COLOR OF OFFICIAL RIGHT." 

/4/  SEE UNITED STATES V. LAUDANI, 134 F.2D 847, 851, N. 1 (C.A.3D
CIR. 1943), REV'D ON OTHER GROUNDS, 320 U.S. 543 (1944); UNITED STATES
V. ALTMEYER, 113 F.SUPP.  854, 856 (D.C.W.D. PA. 1953); W. CLARK & W.
MARSHALL, A. TREATISE ON THE LAW OF CRIMES SEC. 12.17 (6TH ED. 1958). 

/5/  COMPARE ALA. CODE, TIT. 14, SEC. 160 (1959) (EXTORTION), WITH
ALA. CODE, TIT. 14, SECS. 49-50 (1959) (BLACKMAIL), AND OHIO REV. CODE
ANN. SEC. 2919.13 (1954) (EXTORTION), WITH OHIO REV. CODE ANN. SEC.
2901.38 (1954) (BLACKMAIL). 

/6/  THE MODEL PENAL CODE AS FIRST DRAFTED INCLUDED THE OFFENSES FOR
WHICH APPELLEES ARE CHARGED UNDER THE HEADING OF "THEFT BY
INTIMIDATION."  MODEL PENAL CODE SEC. 206.3 (TENT.  DRAFT NO. 2,
1954).  THE PROPOSED OFFICIAL DRAFT CLASSIFIES THE SAME OFFENSES AS
"THEFT BY EXTORTION."  MODEL PENAL CODE SEC. 223.4 (PROP.  OFF.  DRAFT
1962).  THE COMMENTS TO THE ORIGINAL DRAFT INDICATE THAT THE AUTHORS
INTENDED THESE SECTIONS TO ENCOMPASS EXTORTIONATE OFFENSES.  SEE MODEL
PENAL CODE SEC. 206.3, COMMENTS 1, 5 (TEN.  DRAFT NO. 2, 1954). 

/7/  THE ATTORNEY GENERAL CHARACTERIZED S. 1653, LATER ENACTED AS
SEC. 1952, AS "ONE OF THE MOST IMPORTANT" OF HIS PROPOSALS. 

/8/  IN 1965 THE CRIME OF ARSON WAS ADDED TO THE DEFINITION OF
UNLAWFUL ACTIVITY IN SUBSECTION (B)(2).  THIS ADDITION WAS PROMPTED BY
A SUGGESTION FROM THE DEPARTMENT OF JUSTICE THAT ARSON WAS OFTEN USED
BY ORGANIZED CRIME TO COLLECT UNDER INSURANCE POLICIES AND HAD THUS
BECOME ANOTHER SOURCE OF REVENUE.  SEE H.R. REP. NO. 264, 89TH CONG.,
1ST SESS. (1965); S. REP. NO. 351, 89TH CONG., 1ST SESS. (1965). 

/9/  THE RELEVANT PORTION OF THIS LETTER, WRITTEN BY THEN DEPUTY
ATTORNEY GENERAL WHITE, IS REPRODUCED IN POLLNER, ATTORNEY GENERAL
ROBERT F. KENNEDY'S LEGISLATIVE PROGRAM TO CURB ORGANIZED CRIME AND
RACKETEERING, 28 BROOKLYN L.REV.  37, 41 (1961): 

"(THE HOUSE AMENDMENT) ELIMINATED FROM THE PURVIEW OF THE BILL
EXTORTIONS NOT RELATED TO THE FOUR ABOVE OFFENSES BUT WHICH ARE, AND
HAVE HISTORICALLY BEEN, ACTIVITIES WHICH INVOLVE ORGANIZED CRIME.  SUCH
ACTIVITIES ARE THE 'SHAKEDOWN RACKET,' 'SHYLOCKING' (WHERE INTEREST OF
20% PER WEEK IS CHARGED AND WHICH IS COLLECTED BY MEANS OF FORCE AND
VIOLENCE, SINCE IN MOST STATES THE LOANS ARE UNCOLLECTABLE IN COURT)
AND LABOR EXTORTION.  IT ALSO REMOVES FROM THE PURVIEW OF THE BILL
BRIBERY OF STATE, LOCAL AND FEDERAL OFFICIALS BY THE ORGANIZED
CRIMINALS UNLESS WE CAN PROVE THAT THE BRIBERY IS DIRECTLY ATTRIBUTABLE
TO GAMBLING, LIQUOR, NARCOTICS OR PROSTITUTION." 

/10/  S. REP. NO. 644, 87TH CONG., 1ST SESS., 4 (1961) (QUOTING
ATTORNEY GENERAL); H.R. REP. NO. 966, 87TH CONG., 1ST SESS., 4 (1961)
(QUOTING ATTORNEY GENERAL). 

/11/  THE GOVERNMENT NOTES THAT SUBSECTION (B)(2) PROHIBITS BRIBERY
AS WELL AS EXTORTION.  BRIBERY HAS TRADITIONALLY FOCUSED UPON CORRUPT
ACTIVITIES BY PUBLIC OFFICIALS.  SEE 18 U.S.C. 201-218; 3 F. WHARTON'S
CRIMINAL LAW AND PROCEDURE SECS. 1380-1391 (R. ANDERSON ED. 1957). 
SINCE PENNSYLVANIA'S EXTORTION STATUTE COVERS CORRUPT ACTS BY PUBLIC
OFFICIALS, THE GOVERNMENT SUGGESTS THAT APPELLEES' CONSTRUCTION OF
"EXTORTION" RENDERS THE BRIBERY PROHIBITION SUPERFLUOUS. 

/12/  SEVERAL CASES CAST SOME DOUBT UPON THE VITALITY OF THIS
DISTINCTION AS THEY INDICATE THAT IN PENNSYLVANIA THE TERMS EXTORTION
AND BLACKMAIL ARE CONSIDERED SYNONYMOUS.  SEE COMMONWEALTH V. BURDELL,
380 PA. 43, 48, 110 A.2D 193, 196 (1955); COMMONWEALTH V. NATHAN, 93
PA. SUPER.  193, 197 (1928).  FEDERAL CRIMINAL STATUTES HAVE ALSO USED
THE TERMS INTERCHANGEABLY.  FOR EXAMPLE, 18 U.S.C. 250 (1940 ED.)  WAS
ENTITLED "EXTORTION BY INFORMER"; TODAY SUBSTANTIALLY THE SAME
PROVISION IS CAPTIONED "BLACKMAIL."  SEE 18 U.S.C. 873. 

/12A/  (REPORTER'S NOTE:  CERT. DENIED, POST, P. 1062.) 

/13/  EXTORTION IS TYPICALLY EMPLOYED BY ORGANIZED CRIME TO ENFORCE
USURIOUS LOANS, INFILTRATE LEGITIMATE BUSINESSES, AND OBTAIN CONTROL OF
LABOR UNIONS.  SEE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:  ORGANIZED CRIME 3-5
(1967). 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 

PHILIP A. LACOVARA ARGUED THE CAUSE FOR THE UNITED STATES, PRO HAC
VICE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL VINSON, BEATRICE ROSENBERG, AND SIDNEY M. GLAZER. 

F. EMMETT FITZPATRICK, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
APPELLEES. 
..END :






UNITED STATES V. DONRUSS CO., 393 U.S. 297 


       UNITED STATES V. DONRUSS CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT. 

        NO. 17.  ARGUED OCTOBER 22-23, 1968.-- DECIDED JANUARY 13,

           1969. 


TAX IMPOSED BY SECS. 531-537 OF THE INTERNAL REVENUE CODE OF 1954 ON
ACCUMULATED EARNINGS OF A CORPORATION "FORMED OR AVAILED OF FOR THE
PURPOSE OF AVOIDING THE INCOME TAX WITH RESPECT TO ITS SHAREHOLDERS"
HELD TO APPLY IF SUCH TAX AVOIDANCE WAS ONE OF THE PURPOSES OF AN
UNREASONABLE ACCUMULATION OF CORPORATE EARNINGS EVEN THOUGH IT WAS NOT
THE DOMINANT, CONTROLLING, OR IMPELLING MOTIVE FOR THE ACCUMULATION. 
PP. 300-309. 

384 F.2D 292, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE APPLICATION OF SECS. 531-537 OF THE INTERNAL
REVENUE CODE OF 1954, WHICH IMPOSE A SURTAX ON CORPORATIONS "FORMED OR
AVAILED OF FOR THE PURPOSE OF AVOIDING THE INCOME TAX WITH RESPECT TO .
. . (THEIR) SHAREHOLDERS . . . BY PERMITTING EARNINGS AND PROFITS TO
ACCUMUALTE INSTEAD OF BEING DIVIDED OR DISTRIBUTED." 

RESPONDENT IS A CORPORATION ENGAGED IN THE MANUFACTURE AND SALE OF
BUBBLE GUM AND CANDY AND IN THE OPERATION OF A FARM.  SINCE 1954, ALL
OF RESPONDENT'S OUTSTANDING STOCK HAS BEEN OWNED BY DON B. WIENER.  IN
EACH OF THE TAX YEARS FROM 1955 TO 1961, RESPONDENT OPERATED
PROFITABLY, INCREASING ITS UNDISTRIBUTED EARNINGS FROM $1,021,288.58 TO
$1,679,315.37.  THE COMPANY DID NOT MAKE LOANS TO WIENER OR PROVIDE HIM
WITH BENEFITS OTHER THAN A SALARY, NOR DID IT MAKE INVESTMENTS
UNRELATED TO ITS BUSINESS, BUT NO DIVIDENDS WERE DECLARED DURING THE
ENTIRE PERIOD. 

WIENER GAVE SEVERAL REASONS FOR RESPONDENT'S ACCUMULATION POLICY;
AMONG THEM WERE CAPITAL AND INVENTORY REQUIREMENTS, INCREASING COSTS,
AND THE RISKS INHERENT IN THE PARTICULAR BUSINESS AND IN THE GENERAL
ECONOMY.  WIENER ALSO EXPRESSED A GENERAL DESIRE TO EXPAND AND A MORE
SPECIFIC DESIRE TO INVEST IN RESPONDENT'S MAJOR DISTRIBUTOR, THE TOM
HUSTON PEANUT COMPANY.  THERE WERE NO DEFINITE PLANS DURING THE TAX
YEARS IN QUESTION, BUT IN 1964 RESPONDENT PURCHASED 10,000 SHARES IN
TOM HUSTON AT A COST OF $380,000. 

THE COMMISSIONER OF INTERNAL REVENUE ASSESSED ACCUMULATED EARNINGS
TAXES AGAINST RESPONDENT FOR THE YEARS 1960 AND 1961.  RESPONDENT PAID
THE TAX AND BROUGHT THIS REFUND SUIT.  AT THE CONCLUSION OF THE TRIAL,
THE GOVERNMENT SPECIFICALLY REQUESTED THAT THE JURY BE INSTRUCTED
THAT: 

"(IT IS NOT NECESSARY THAT AVOIDANCE OF SHAREHOLDER'S TAX BE THE
SOLE PURPOSE FOR THE UNREASONABLE ACCUMULATION OF EARNINGS; IT IS
SUFFICIENT IF IT IS ONE OF THE PURPOSES FOR THE COMPANY'S ACCUMULATION
POLICY."  THE INSTRUCTION WAS REFUSED AND THE COURT INSTRUCTED THE JURY
IN THE TERMS OF THE STATUTE THAT TAX AVOIDANCE HAD TO BE "THE PURPOSE"
OF THE ACCUMULATIONS.  THE JURY, IN RESPONSE TO INTERROGATORIES, FOUND
THAT RESPONDENT HAD ACCUMULATED EARNINGS BEYOND THE REASONABLE NEEDS OF
ITS BUSINESS, BUT THAT IT HAD NOT RETAINED ITS EARNINGS FOR THE PURPOSE
OF AVOIDING INCOME TAX ON WIENER.  JUDGMENT WAS ENTERED FOR RESPONDENT
AND THE GOVERNMENT APPEALED. 

THE COURT OF APPEALS REVERSED AND REMANDED FOR A NEW TRIAL, HOLDING
THAT "THE JURY MIGHT WELL HAVE BEEN LED TO BELIEVE THAT TAX AVOIDANCE
MUST BE THE SOLE PURPOSE BEHIND AN ACCUMULATION IN ORDER TO IMPOSE THE
ACCUMULATED EARNINGS TAX."  DONRUSS CO. V. UNITED STATES, 384 F.2D 292,
298 (C.A. 6TH CIR. 1967).  THE COURT OF APPEALS REJECTED THE
GOVERNMENT'S PROPOSED INSTRUCTION AND HELD THAT THE TAX APPLIED ONLY IF
TAX AVOIDANCE WAS THE "DOMINANT, CONTROLLING, OR IMPELLING MOTIVE" FOR
THE ACCUMULATION.  IBID.  WE GRANTED THE GOVERNMENT'S PETITION FOR
CERTIORARI TO RESOLVE A CONFLICT AMONG THE CIRCUITS /1/  OVER THE
DEGREE OF "PURPOSE" NECESSARY FOR THE APPLICATION OF THE ACCUMULATED
EARNINGS TAX, AND BECAUSE OF THE IMPORTANCE OF THAT QUESTION IN THE
ADMINISTRATION OF THE TAX.  390 U.S. 1023 (1968). 

        I. 

THE ACCUMULATED EARNINGS TAX IS ESTABLISHED BY SECS. 531-537 OF THE
INTERNAL REVENUE CODE OF 1954.  SECTION 531 IMPOSES THE TAX.  /2/
THAT SECTION PROVIDES: 

     "THE ACCUMULATED EARNINGS TAX IMPOSED BY SECTION 531 SHALL

  APPLY TO EVERY CORPORATION . . . FORMED OR AVAILED OF FOR THE

  PURPOSE OF AVOIDING THE INCOME TAX WITH RESPECT TO ITS

  SHAREHOLDERS OR THE SHAREHOLDERS OF ANY OTHER CORPORATION, BY

  PERMITTING EARNINGS AND PROFITS TO ACCUMULATE INSTEAD OF BEING

  DIVIDED OR DISTRIBUTED."  /3/ 


    "FOR PURPOSES OF SECTION 532, THE FACT THAT THE EARNINGS AND

  PROFITS OF A CORPORATION ARE PERMITTED TO ACCUMULATE BEYOND THE

  REASONABLE NEEDS OF THE BUSINESS SHALL BE DETERMINATIVE OF THE

  PURPOSE TO AVOID THE INCOME TAX WITH RESPECT TO SHAREHOLDERS,

  UNLESS THE CORPORATION BY THE PREPONDERANCE OF THE EVIDENCE SHALL

  PROVE TO THE CONTRARY." 

IN CASES BEFORE THE TAX COURT, SEC. 534 ALLOWS THE TAXPAYER IN
CERTAIN INSTANCES TO SHIFT TO THE COMMISSIONER THE BURDEN OF PROVING
ACCUMULATION BEYOND THE REASONABLE NEEDS OF THE BUSINESS.  SECTION 535
DEFINES "ACCUMULATED TAXABLE INCOME." 

THE DISPUTE BEFORE US IS A NARROW ONE.  THE GOVERNMENT CONTENDS THAT
IN ORDER TO NOT "ONE OF THE PURPOSES" FOR THE ACCUMULATION OF EARNINGS
BEYOND THE REASONABLE NEEDS IT ALSO PROVIDES FOR A CREDIT FOR THAT
PORTION OF THE EARNINGS AND PROFITS RETAINED FOR THE REASONABLE NEEDS
OF THE BUSINESS, WITH A MINIMUM LIFETIME CREDIT OF $100,000.  FINALLY,
SEC. 537 PROVIDES THAT "REASONABLE NEEDS OF THE BUSINESS" INCLUDE
"REASONABLY ANTICIPATED" NEEDS. 

THE DISPUTE BEFORE US IS A NARROW ONE.  THE GOVERNMENT CONTENDS THAT
IN ORDER TO REBUT THE PRESUMPTION CONTAINED IN SEC. 533(A), THE
TAXPAYER MUST ESTABLISH BY THE PREPONDERANCE OF THE EVIDENCE THAT TAX
AVOIDANCE WITH RESPECT TO SHAREHOLDERS WAS NOT "ONE OF THE PURPOSES"
FOR THE ACCUMULATION OF EARNINGS BEYOND THE REASONABLE NEEDS OF THE
BUSINESS.  RESPONDENT ARGUES THAT IT MAY REBUT THAT PRESUMPTION BY
DEMONSTRATING THAT TAX AVOIDANCE WAS NOT THE "DOMINANT, CONTROLLING, OR
IMPELLING" REASON FOR THE ACCUMULATION.  NEITHER PARTY QUESTIONS THE
TRIAL COURT'S INSTRUCTIONS ON THE ISSUE OF WHETHER THE ACCUMULATION WAS
BEYOND THE REASONABLE NEEDS OF THE BUSINESS, AND RESPONDENT DOES NOT
CHALLENGE THE JURY'S FINDING THAT ITS ACCUMULATION WAS INDEED
UNREASONABLE.  WE INTIMATE NO OPINION ABOUT THE STANDARDS GOVERNING
REASONABLENESS OF CORPORATE ACCUMULATIONS. 

WE CONCLUDE FROM AN EXAMINATION OF THE LANGUAGE, THE PURPOSE, AND THE
LEGISLATIVE HISTORY OF THE STATUTE THAT THE GOVERNMENT'S CONSTRUCTION
IS THE CORRECT ONE.  ACCORDINGLY, WE REVERSE THE JUDGMENT OF THE COURT
BELOW AND REMAND THE CASE FOR A NEW TRIAL ON THE ISSUE OF WHETHER
AVOIDANCE OF SHAREHOLDER TAX WAS ONE OF THE PURPOSES OF RESONDENT'S
ACCUMULATION. 

        II. 

BOTH PARTIES ARGUE THAT THE LANGUAGE OF THE STATUTE SUPPORTS THEIR
CONCLUSION.  RESPONDENT ARGUES THAT CONGRESS COULD HAVE USED THE
ARTICLE "A" IN SECS. 532 AND 533 IF IT HAD INTENDED TO ADOPT THE
GOVERNMENT'S TEST.  INSTEAD, ARGUES RESPONDENT, CONGRESS USED THE
ARTICLE "THE" IN THE OPERATIVE PART OF THE STATUTE, THUS INDICATING
THAT TAX AVOIDANCE MUST AT LEAST BE THE DOMINANT MOTIVE FOR THE
ACCUMULATION.  /4/  THE GOVERNMENT ARGUES THAT RESPONDENT'S
CONSTRUCTION GIVES AN UNDULY NARROW EFFECT TO THE WORD "THE."  INSTEAD,
CONTENDS THE GOVERNMENT, THIS COURT SHOULD FOCUS ON THE ENTIRE PHRASE
"AVAILED OF FOR THE PURPOSE."  ANY LANGUAGE OF LIMITATION SHOULD
LOGICALLY MODIFY "AVAILED OF" RATHER THAN "PURPOSE" AND NO SUCH
LANGUAGE IS PRESENT.  THE GOVERNMENT FURTHER ARGUES THAT CONGRESS HAS
DEALT WITH SIMILAR PROBLEMS IN OTHER SECTIONS OF THE CODE AND HAS USED
TERMS SUCH AS "PRINCIPAL PURPOSE," SECS. 269(A), 357(B)(1), AND "USED
PRINCIPALLY,"  SEC. 355(A)(1)(B).  SIMILAR TERMS COULD HAVE BEEN USED
IN SECS. 532(A) AND 533(A), BUT WERE NOT.  FINALLY, THE GOVERNMENT
POINTS TO THE FACT THAT PRIOR TO ADOPTION OF SEC. 102 OF THE REVENUE
ACT OF 1938 (52 STAT. 483) THE FORERUNNER OF SEC. 532(A) USED THE WORDS
"THE PURPOSE,"  WHILE THE EVIDENTIARY SECTION USED THE WORDS "A
PURPOSE," THUS INDICATING THAT TAX AVOIDANCE NEED ONLY BE ONE PURPOSE. 
RESPONDENT REPLIES THAT THE CHANGE FROM "A" TO "THE" IN THE EVIDENTIARY
STATUTE BEFORE THE CHANGE WAS CONSISTENT WITH ITS CONSTRUCTION. 

WE FIND BOTH PARTIES' ARGUMENTS INCONCLUSIVE.  THE PHRASE "AVAILED
OF FOR THE PURPOSE" IS INHERENTLY VAGUE, AND THERE IS NO INDICATION IN
THE LEGISLATIVE HISTORY THAT CONGRESS INTENDED TO ATTACH ANY PARTICULAR
SIGNIFICANCE TO THE USE OF THE ARTICLE "THE."  NOR DO WE FIND THE
CHANGE IN THE EVIDENTIARY SECTION FROM "A" TO "THE" AT ALL HELPFUL. 
THAT CHANGE CAME AS PART OF A SIGNIFICANT REVISION IN THE OPERATION OF
THE SECTION, AND THERE IS NO INDICATION THAT IT WAS OTHER THAN A MERE
CHANGE IN PHRASEOLOGY.  /5/ INDEED, THE REPORT OF THE SENATE FINANCE
COMMITTEE ACCOMPANYING THE BILL THAT WAS TO BECOME THE REVENUE ACT OF
1938, INSOFAR AS IT SHEDS ANY LIGHT ON THE QUESTION, SUPPORTS THE VIEW
OF THE GOVERNMENT.  "THE PROPOSAL IS TO STRENGTHEN (THE EVIDENTIARY)
EVIDENCE TO PROVE THE ABSENCE OF ANY PURPOSE TO AVOID SURTAXES UPON
SHAREHOLDERS.  . . . "  S. REP. NO. 1567, 75TH CONG., 3D SESS., 5
1938).  SINCE THE LANGUAGE OF THE STATUTE DOES NOT PROVIDE AN ANSWER TO
THE QUESTION BEFORE US, /6/  WE HAVE EXAMINED IN DETAIL THE RELEVANT
LEGISLATIVE HISTORY.  THAT HISTORY LEADS US TO CONCLUDE THAT THE TEST
PROPOSED BY THE GOVERNMENT IS CONSISTENT WITH THE INTENT OF CONGRESS
AND IS NECESSARY TO EFFECTUATE THE PURPOSE OF THE ACCUMULATED EARNINGS
TAX. 

III. 

THE ACCUMULATED EARNINGS TAX IS ONE CONGRESSIONAL ATTEMPT TO DETER
USE OF A CORPORATE ENTITY TO AVOID PERSONAL INCOME TAXES.  THE PURPOSE
OF THE TAX "IS TO COMPEL THE COMPANY TO DISTRIBUTE ANY PROFITS NOT
NEEDED FOR THE CONDUCT OF ITS BUSINESS SO THAT, WHEN SO DISTRIBUTED,
INDIVIDUAL STOCKHOLDERS WILL BECOME LIABLE" FOR TAXES ON THE DIVIDENDS
RECEIVED, HELVERING V. CHICAGO STOCK YARDS CO., 318 U.S. 693, 699
(1943).  THE TAX ORIGINATED IN THE TARIFF ACT OF 1913, 38 STAT. 114,
THE FIRST PERSONAL INCOME TAX STATUTE FOLLOWING RATIFICATION OF THE
SIXTEENTH AMENDMENT.  THAT ACT IMPOSED A TAX ON THE SHAREHOLDERS OF ANY
CORPORATION "FORMED OR FRAUDULENTLY AVAILED OF FOR THE PURPOSE OF
PREVENTING THE IMPOSITION OF SUCH TAX THROUGH THE MEDIUM OF PERMITTING
SUCH GAINS AND PROFITS TO ACCUMULATE INSTEAD OF BEING DIVIDED OR
DISTRIBUTED.  . . . "  SEC. IIA)(2), 38 STAT. 166.  THE SAME SECTION
PROVIDED THAT ACCUMULATION BEYOND THE REASONABLE NEEDS OF THE BUSINESS
"SHALL BE PRIMA FACIE EVIDENCE OF A FRAUDULENT PURPOSE TO ESCAPE SUCH
TAX.  . . . "  38 STAT. 167. 

IN ITS FIRST YEARS OF OPERATION, DIFFICULTIES IN PROVING A
FRAUDULENT PURPOSE MADE THE TAX LARGELY INEFFECTIVE.  TO MEET THIS
PROBLEM, CONGRESS DELETED THE WORD "FRAUDULENTLY."  REVENUE ACT OF
1918, SEC. 220, 40 STAT. 1072; SEE S. REP. NO. 617, 65TH CONG., 3D
SESS., 5 (1918).  /7/ 

DURING THE NEXT FEW YEARS, NUMEROUS COMPLAINTS WERE MADE ABOUT THE
INEFFECTIVENESS OF THE ACCUMULATED EARNINGS TAX.  VARIOUS ATTEMPTS WERE
MADE TO STRENGTHEN THE TAX DURING THE 1920'S AND 1930'S, BUT THE
STATUTE REMAINED ESSENTIALLY THE SAME UNTIL 1934.  SEE JOINT COMMITTEE
ON THE ECONOMIC REPORT, THE TAXATION OF CORPORATE SURPLUS
ACCUMULATIONS, 82D CONG., 2D SESS., 200-205 (COMM. PRINT 1952).  IN
1934, CONGRESS DEALT WITH ONE OF THE MOE FLAGRANT EXAMPLES OF THAT
INEFFECTIVENESS, THE PERSONAL HOLDING COMPANY.  PERSONAL HOLDING
COMPANIES WERE EXEMPTED FROM THE GENERAL ACCUMULATED EARNINGS TAX AND
WERE SUBJECTED TO A TAX ON UNDISTRIBUTED INCOME, REGARDLESS OF THE
PURPOSE OF THAT ACCUMULATION.  REVENUE ACT OF 1935, SECS. 102, 351, 48
STAT. 702, 751.  THE REASON FOR THE CHANGE WAS THAT, "(BY MAKING
PARTIAL DISTRIBUTION OF PROFITS AND BY SHOWING SOME NEED FOR THE
ACCUMULATION OF THE REMAINING PROFITS, THE TAXPAYER MAKES IT DIFFICULT
TO PROVE A PURPOSE TO AVOID TAXES."  H.R. REP. NO. 704, 73D CONG., 2D
SESS., 11 (1934). 

AGAIN IN 1936, CONGRESS ATTEMPTED TO SOLVE THE CONTINUING PROBLEM OF
UNDISTRIBUTED CORPORATE EARNINGS.  THE DIFFICULTY OF PROVING SUCH (TAX
AVOIDANCE) PURPOSE . . . HAS RENDERED . . . (THE ACCUMULATED EARNINGS
TAX) MORE OR LESS INEFFECTIVE."  H.R. REP. NO. 2475, 74TH CONG., 2D
SESS., 5 (1936).  HOWEVER, CONGRESS DID NOT CHANGE THE REQUIREMENT THAT
"PURPOSE" MUST BE PROVED.  RATHER, IT ATTEMPTED THE ALTERNATIVE METHOD
OF IMPOSING AN UNDISTRIBUTED PROFITS SURTAX ON MOST CORPORATIONS. 
REVENUE ACT OF 1936, SEC. 14, 49 STAT. 1655.  THE TAX ON PERSONAL
HOLDING COMPANIES AND THE GENERAL ACCUMULATED EARNINGS TAX WERE
RETAINED.  /8/ 

THE PROBLEM CONTINUED TO BE ACUTE AND SEVERAL PROPOSALS WERE MADE BY
AND TO CONGRESS IN 1938.  THE HOUSE WAYS AND MEANS COMMITTEE PROPOSED A
SURTAX ON ALL CLOSELY HELD OPERATING COMPANIES.  ONLY MINOR CHANGES
WERE PROPOSED BY THE COMMITTEE IN THE ACCUMULATED EARNINGS TAX.  SEE
H.R. REP. NO. 1860, 75TH CONG., 3D SESS. (1938).  THE HOUSE REJECTED
ALL BUT THE CHANGES IN THE ACCUMULATED EARNINGS TAX.  THE SENATE
APPROACHED THE PROBLEM OF RETAINED CORPORATE EARNINGS IN A DIFFERENT
WAY.  LABELING THE HOUSE COMMITTEE'S RECOMMENDATION A "DRASTIC" REMEDY,
THE SENATE FINANCE COMMITTEE RECOMMENDED "DEALING WITH THIS PROBLEM
WHERE IT SHOULD BE DEALT WITH-- NAMELY, IN SECTION 102, RELATING TO
CORPORATIONS IMPROPERLY ACCUMULATING SURPLUS.  THE PROPOSAL IS TO
STRENGTHEN THIS SECTION BY REQUIRING THE TAXPAYER BY A CLEAR
PREPONDERANCE OF THE EVIDENCE TO PROVE THE ABSENCE OF ANY PURPOSE TO
AVOID SURTAXES UPON SHAREHOLDERS AFTER IT HAS BEEN DETERMINED THAT THE
EARNINGS AND PROFITS HAVE BEEN UNREASONABLY ACCUMULATED."  S. REP. NO.
1567, 75TH CONG., 3D SESS., 5 (1938).  THE CHANGE WAS THOUGHT TO MAKE
IT CLEAR THAT THE BURDEN OF PROVING INTENT, RATHER THAN THE LESSER
BURDEN OF PRODUCING EVIDENCE ON THE QUESTION, WAS TO BE ON THE
TAXPAYER.  ID., AT 16.  THE SENATE PROPOSAL WAS ENACTED.  REVENUE ACT
OF 1938, SEC. 102, 52 STAT. 483.  THE COMMITTEE FELT THAT A "REASONABLE
ENFORCEMENT OF THIS REVISED SECTION WILL REDUCE TAX AVOIDANCE.  . . . "
S. REP. NO. 1567, SUPRA, AT 5.     ONLY INSIGNIFICANT CHANGES WERE
MADE IN THE ACCUMULATED EARNINGS TAX FROM 1938 TO 1954.  DISCUSSION OF
THE PROBLEM CONTINUED, HOWEVER, AND NUMEROUS PROPOSALS WERE MADE TO
ALTER THE TAX.  SEE, E.G., JOINT COMMITTEE ON THE ECONOMIC REPORT, THE
TAXATION OF CORPORATE SURPLUS ACCUMULATIONS, 82D CONG., 2D SESS. (COMM.
PRINT 1952).  CONGRESS TOOK COGNIZANCE OF THESE COMPLAINTS AND
INCORPORATED MANY OF THEM IN THE INTERNAL REVENUE CODE OF 1954, BUT NO
CHANGE WAS MADE IN THE REQUIRED DEGREE OF TAX AVOIDANCE PURPOSE.  /9/
RATHER, THE CHANGES, WHICH WERE GENERALLY FAVORABLE TO THE TAXPAYER,
/10/  DEMONSTRATED CONGRESSIONAL DISAFFECTION WITH THE EFFECT OF THE
TAX AND ITS EMPHASIS ON INTENT.  CONGRESS' REACTION TO THE COMPLAINTS
WAS TO EMPHASIZE THE REASONABLE NEEDS OF THE BUSINESS AS A PROPER
PURPOSE FOR CORPORATE ACCUMULATIONS /11/  AND TO MAKE IT EASIER FOR THE
TAXPAYER TO PROVE THOSE NEEDS.  /12/  AS THE HOUSE WAYS AND MEANS
COMMITTEE SAID, "YOUR COMMITTEE BELIEVES IT IS NECESSARY TO RETAIN THE
PENALTY TAX ON UNREASONABLE ACCUMULATIONS AS A SAFEGUARD AGAINST TAX
AVOIDANCE.  HOWEVER, SEVERAL AMENDMENTS HAVE BEEN ADOPTED TO MINIMIZE
THE THREAT TO CORPORATIONS ACCUMULATING FUNDS FOR LEGITIMATE BUSINESS
PURPOSES.  . . . "  H.R. REP. NO. 1337, 83D CONG., 2D SESS., 52
(1954). 

AS THIS BRIEF SUMMARY INDICATES, THE LEGISLATIVE HISTORY OF THE
ACCUMULATED EARNINGS TAX DEMONSTRATES A CONTINUING CONCERN WITH THE USE
OF THE CORPORATE FORM TO AVOID INCOME TAX ON A CORPORATION'S
SHAREHOLDERS.  NUMEROUS METHODS WERE EMPLOYED TO PREVENT THIS PRACTICE,
ALL OF WHICH PROVED UNSATISFACTORY IN ONE WAY OR ANOTHER.  TWO
CONCLUSIONS CAN BE DRAWN FROM CONGRESS' EFFORTS.  FIRST, CONGRESS
RECOGNIZED THE TREMENDOUS DIFFICULTY OF ASCERTAINING THE PURPOSE OF
CORPORATE ACCUMULATIONS.  SECOND, IT SAW THAT ACCUMULATION WAS OFTEN
NECESSARY FOR LEGITIMATE AND REASONABLE BUSINESS PURPOSES.  IT APPEARS
CLEAR TO US THAT THE CONGRESSIONAL RESPONSE TO THESE FACTS HAS BEEN TO
EMPHASIZE UNREASONABLE ACCUMULATION AS THE MOST SIGNIFICANT FACTOR IN
THE INCIDENCE OF THE TAX.  THE REASONABLENESS OF AN ACCUMULATION, WHILE
SUBJECT TO HONEST DIFFERENCE OF OPINION, IS A MUCH MORE OBJECTIVE
INQUIRY, AND IS SUSCEPTIBLE OF MORE EFFECTIVE SCRUTINY, THAN ARE THE
VAGARIES OF CORPORATE MOTIVE. 

RESPONDENT WOULD HAVE US ADOPT A TEST THAT REQUIRES THAT TAX
AVOIDANCE PURPOSE NEED BE DOMINANT, IMPELLING, OR CONTROLLING.  IT
SEEMS TO US THAT SUCH A TEST WOULD EXACERBATE THE PROBLEMS THAT
CONGRESS WAS TRYING TO AVOID.  RARELY IS THERE ONE MOTIVE, OR EVEN ONE
DOMINANT MOTIVE, FOR CORPORATE DECISIONS.  NUMEROUS FACTORS CONTRIBUTE
TO THE ACTION ULTIMATELY DECIDED UPON.  RESPONDENT'S TEST WOULD ALLOW
TAXPAYERS TO ESCAPE THE TAX WHEN IT IS PROVED THAT AT LEAST ONE OTHER
MOTIVE WAS EQUAL TO TAX AVOIDANCE.  WE DOUBT THAT SUCH A DETERMINATION
CAN BE MADE WITH ANY ACCURACY, AND IT IS CERTAINLY ONE WHICH WILL
DEPEND ALMOST EXCLUSIVELY ON THE INTERESTED TESTIMONY OF CORPORATE
MANAGEMENT.  RESPONDENT'S TEST WOULD THUS GO A LONG WAY TOWARD
DESTROYING THE PRESUMPTION THAT CONGRESS CREATED TO MEET THIS VERY
PROBLEM.  AS JUDGE LEARNED HAND SAID OF THE MUCH WEAKER PRESUMPTION
CONTAINED IN THE REVENUE ACT OF 1921, SEC. 220, 42 STAT. 247, "(A)
STATUTE WHICH STANDS ON THE FOOTING OF THE PARTICIPANTS' STATE OF MIND
MAY NEED THE SUPPORT OF PRESUMPTION, INDEED BE PRACTICALLY
UNENFORCEABLE WITHOUT IT. . . . "  UNITED BUSINESS CORP. V.
COMMISSIONER, 62 F.2D 754, 755 (C.A.2D CIR. 1933).  AND, "(THE UTILITY
OF . . . (THAT) PRESUMPTION . . . IS WELL NIGH DESTROYED IF . . . (IT)
IS SADDLED WITH REQUIREMENT OF PROOF OF 'THE PRIMARY OR DOMINANT
PURPOSE' OF THE ACCUMULATION."  BARROW MFG. CO. V. COMMISSIONER, 294
F.2D 79, 82 (C.A. 5TH CIR. 1961), CERT. DENIED, 369 U.S. 817 (1962). 

THE CASES CITED BY RESPONDENT DO NOT CONVINCE US TO THE CONTRARY. 
FOR THE MOST PART, THEY LACK DETAILED ANALYSIS OF THE PRECISE PROBLEM. 
PERHAPS THE LEADING CASE FOR RESPONDENT'S POSITION IS YOUNG MOTOR CO.
V. COMMISSIONER, 281 F.2D 488 (C.A. 1ST CIR. 1960).  THAT CASE RELIED
IN PART UPON THE USE OF THE ARTICLE "THE" INSTEAD OF "A."  WE HAVE
PREVIOUSLY REJECTED THAT ARGUMENT.  THE CASE ALSO RELIED, AS DID THE
COURT BELOW, ON CERTAIN CASES FROM THE GIFT AND ESTATE TAX AREAS.  /13/
WE FIND THOSE CASES INAPPOSITE.  THEY DEAL WITH AREAS OF THE CODE
WHOSE LANGUAGE, PURPOSE, AND LEGISLATIVE HISTORY ARE ENTIRELY DIFFERENT
FROM THOSE OF THE ACCUMULATED EARNINGS TAX.  SEE COMMISSIONER V.
DUBERSTEIN, 363 U.S. 278, 284 (1960). 

FINALLY, WE CANNOT SUBSCRIBE TO RESPONDENT'S SUGGESTION THAT OUR
HOLDING WOULD MAKE PURPOSE TOTALLY IRRELEVANT.  IT STILL SERVES TO
ISOLATE THOSE CASES IN WHICH TAX AVOIDANCE MOTIVES DID NOT CONTRIBUTE
TO THE DECISION TO ACCUMULATE.  OBVIOUSLY IN SUCH A CASE IMPOSITION OF
THE TAX WOULD BE FUTILE.  IN ADDITION, "PURPOSE" MEANS MORE THAN MERE
KNOWLEDGE, UNDOUBTEDLY PRESENT IN NEARLY EVERY CASE.  IT IS STILL OPEN
TO THE TAXPAYER TO SHOW THAT EVEN THOUGH KNOWLEDGE OF THE TAX
CONSEQUENCES WAS PRESENT, THAT KNOWLEDGE DID NOT CONTRIBUTE TO THE
DECISION TO ACCUMULATE EARNINGS. 

              REVERSED AND REMANDED. 

/1/  THE COURT BELOW ADOPTED THE VIEW OF THE FIRST CIRCUIT.  SEE
YOUNG MOTOR CO. V. COMMISSIONER, 281 F.2D 488, 491 (1960); SEE ALSO
APOLLO INDUSTRIES, INC. V. COMMISSIONER, 358 F.2D 867, 875-876 (1966). 
THE SECOND CIRCUIT HAS REJECTED "THE VIEW THAT THE PREVENTION OF THE
IMPOSITION OF SURTAXES MUST HAVE BEEN SHOWN TO HAVE BEEN THE DOMINANT
FACTOR BEHIND THE ACCUMULATIONS."  TRICO PRODS.  CORP.  V.
COMMISSIONER, 137 F.2D 424, 426, CERT. DENIED, 320 U.S. 799 (1943). 
SEE ALSO UNITED STATES V. DUKE LABORATORIES, INC., 337 F.2D 280
(1964).  THE FIFTH CIRCUIT HAS ALSO REJECTED THE POSITION THAT TAX
AVOIDANCE MUST BE THE "PRIMARY OR DOMINANT" PURPOSE OF THE
ACCUMULATION.  BARROW MFG. CO. V. COMMISSIONER, 294 F.2D 79, 82 (1961),
CERT. DENIED, 369 U.S. 817 (1962).  THE EIGHTH AND TENTH CIRCUITS HAVE
TAKEN WHAT APPEARS TO BE AN INTERMEDIATE POSITION, HOLDING THAT
IMPOSITION OF THE TAX IS PROPER IF TAX AVOIDANCE IS ONE OF THE
"DETERMINATING PURPOSES."  KERR-COCHRAN, INC. V. COMMISSIONER, 253 F.2D
121, 123 (C.A. 8TH CIR. 1958); WORLD PUB. CO. V. UNITED STATES, 169
F.2D 186, 189 (C.A. 10TH CIR. 1948), CERT. DENIED, 335 U.S. 911
(1949).  THE SIXTH CIRCUIT HAS ADHERED TO ITS VIEW IN SHAW-WALKER CO.
V. COMMISSIONER, 390 F.2D 205 (1968).  A PETITION FOR CERTIORARI IN
THAT CASE IS NOW PENDING IN THIS COURT. 

/2/  THE RATES ARE 27 1/2% OF THE ACCUMULATED TAXABLE INCOME
(DEFINED IN SEC. 535) NOT IN EXCESS OF $100,000, PLUS 38 1/2% OF THE
ACCUMULATED TAXABLE INCOME IN EXCESS OF $100,000.  INTERNAL REVENUE
CODE OF 1954, SEC. 531. 

/3/  SECTION 532(B) EXEMPTS PERSONAL HOLDING COMPANIES, FOREIGN
PERSONAL HOLDING COMPANIES, AND CERTAIN TAX-EXEMPT CORPORATIONS. 
INTERNAL REVENUE CODE OF 1954, SEC. 532(B).  BOTH TYPES OF HOLDING
COMPANIES ARE TAXED UNDER OTHER PROVISIONS OF THE CODE.  SEE INTERNAL
REVENUE CODE OF 1954, SECS. 541-547 (PERSONAL HOLDING COMPANIES);
INTERNAL REVENUE CODE OF 1954, SECS. 551-558 (FOREIGN PERSONAL HOLDING
COMPANIES). 

/4/  THE FIRST CIRCUIT IN YOUNG MOTOR CO. V. COMMISSIONER, 281 F.2D
488 (1960), IN PART BASED ITS CONCLUSION THAT TAX AVOIDANCE MUST BE THE
"PRIMARY OR DOMINANT PURPOSE" ON THE USE OF "THE" RATHER THAN "A." 

/5/  NO CHANGE WAS MADE IN THAT PART OF THE STATUTE PROVIDING THAT
"(THE FACT THAT ANY CORPORATION IS A MERE HOLDING OR INVESTMENT COMPANY
SHALL BE PRIMA FACIE EVIDENCE OF A PURPOSE" TO AVOID TAX.  REVENUE ACT
OF 1938, SEC. 102(B), 52 STAT. 483. 

/6/  THE REGULATIONS SHED NO LIGHT ON THE PROBLEM.  SEE TREAS. REG.
SECS. 1.531-1.537, 26 CFR SECS. 1.531-1.537. 

/7/  ANOTHER MAJOR CHANGE WAS MADE IN THE REVENUE ACT OF 1921, 42
STAT. 227.  SECTION 220 OF THAT ACT SHIFTED THE INCIDENCE OF THE
ACCUMULATED EARNINGS TAX FROM THE SHAREHOLDERS TO THE CORPORATION
ITSELF.  42 STAT. 247.  THE CHANGE WAS PROMPTED BY THE DECISION IN
EISNER V. MACOMBER, 252 U.S. 189 (1920).  SEE H.R. REP. NO. 350, 67TH
CONG., 1ST SESS., 12-13 (1921). 

/8/  TAX AVOIDANCE AND EVASION WERE A MAJOR SUBJECT OF CONGRESSIONAL
CONCERN IN 1937.  SEE, E.G., H.R. REP. NO. 1546, 75TH CONG., 1ST SESS.
(1937).  CONGRESS ADDRESSED ITSELF TO ANOTHER ASPECT OF THE PROBLEM BY
ESTABLISHING A SEPARATE METHOD FOR THE TAXATION OF FOREIGN PERSONAL
HOLDING COMPANIES, AGAIN WITHOUT REGARD TO CORPORATE INTENT.  REVENUE
ACT OF 1937, SEC. 201, 50 STAT. 818. 

/9/  CONGRESS WAS URGED TO ADOPT A TEST OF PURPOSE SIMILAR TO THAT
PROPOSED BY RESPONDENT IN THE PRESENT CASE.  SEE, E.G., HEARINGS BEFORE
THE HOUSE COMMITTEE ON WAYS AND MEANS PERTAINING TO THE GENERAL
REVISION OF THE INTERNAL REVENUE CODE, 83D CONG., 1ST SESS., PT. 3, P.
2142 (1953). 

/10/  THE CHANGES WERE EXPECTED TO DECREASE REVENUES BY $10,000,000
IN FISCAL YEAR 1955.  SEE S. REP. NO. 1622, 83D CONG., 2D SESS., 72
(1954). 

/11/  SECTION 535(C) PROVIDED A CREDIT FOR SUCH ACCUMULATIONS. 

/12/ SECTION 534 ALLOWED THE TAXPAYER TO SHIFT TO THE COMMISSIONER
IN CERTAIN INSTANCES THE BURDEN OF PROVING UNREASONABLE ACCUMULATION. 
BUSINESS.  IN ADDITION TO THOSE CHANGES, SEC. 533(A) OMITTED THE
REQUIREMENT THAT THE TAXPAYER NEGATE THE EXISTENCE OF TAX AVOIDANCE
PURPOSE BY A "CLEAR PREPONDERANCE OF THE EVIDENCE," AND SUBSTITUTED A
"PREPONDERANCE" TEST. 

/13/  COMMISSIONER V. DUBERSTEIN, 363 U.S. 278 (1960); ALLEN V.
TRUST CO. OF GEORGIA, 326 U.S. 630 (1946); CITY BANK FARMERS TRUST CO.
V. MCGOWAN, 323 U.S. 594 (1945); UNITED STATES V. WELLS, 283 U.S. 102
(1931). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE STEWART
JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT THAT THE COURT OF APPEALS ERRED IN FRAMING
ITS REMAND ORDER IN THIS CASE.  HOWEVER, I WOULD MODIFY THE ORDER IN A
DIFFERENT WAY, WHICH I FIND MORE IN HARMONY WITH THE STATUTORY SCHEME
THAT THE ONE THE COURT HAS CHOSEN. 

PART: 

     "THE ACCUMULATED EARNINGS TAX IMPOSED BY SECTION 531 SHALL

  APPLY TO EVERY CORPORATION . . . FORMED OR AVAILED OF FOR THE

  PURPOSE OF AVOIDING THE INCOME TAX WITH RESPECT TO ITS

  SHAREHOLDERS . . . , BY PERMITTING EARNINGS AND PROFITS TO

  ACCUMULATE INSTEAD OF BEING DIVIDED OR DISTRIBUTED." 


     "FOR PURPOSES OF SECTION 532, THE FACT THAT THE EARNINGS AND

  PROFITS OF A CORPORATION ARE PERMITTED TO ACCUMULATE BEYOND THE

  REASONABLE NEEDS OF THE BUSINESS SHALL BE DETERMINATIVE OF THE

  PURPOSE TO AVOID THE INCOME TAX WITH RESPECT TO SHAREHOLDERS,

  UNLESS THE CORPORATION BY THE PREPONDERANCE OF THE EVIDENCE SHALL

  PROVE TO THE CONTRARY." 

OUR TASK IS TO DECIDE WHAT JURY INSTRUCTION WITH RESPECT TO THE
DEFINITION OF "PURPOSE" COMPORTS BEST WITH CONGRESS' INTENT AS REVEALED
BY THIS STATUTORY LANGUAGE AND THE UNDERLYING LEGISLATIVE HISTORY. 

I AM IN ACCORD WITH MUCH OF THE COURT'S OPINION.  I TOO FIND THAT
THE SUCCESSIVE CHANGES IN THE WORDING OF THE STATUTE, EVEN WHEN READ
TOGETHER WITH THE LEGISLATIVE HISTORY, DO NOT HELP IN OUR INQUIRY.  I
TOO FIND THAT THE LEGISLATIVE HISTORY REVEALS A PROGRESSIVE
CONGRESSIONAL INTENTION TO RELY MORE AND MORE HEAVILY UPON A
COMPARATIVELY OBJECTIVE CRITERION:  WHETHER THE ACCUMULATED EARNINGS
WERE IN EXCESS OF THE CORPORATION'S REASONABLE BUSINESS NEEDS. 
NEVERTHELESS, IT IS APPARENT FROM THE LANGUAGE OF SEC. 533(A), AND FROM
THE LEGISLATIVE MATERIALS, THAT CONGRESS CHOSE STILL TO GIVE THE
TAXPAYER A "LAST CLEAR CHANCE" TO PROVE THAT, DESPITE THE
UNREASONABLENESS OF THE ACCUMULATION BY BUSINESS STANDARDS, THE
ACCUMULATION WAS NOT DUE TO THE PROSCRIBED PURPOSE.  MY DIFFICULTY WITH
THE INSTRUCTION APPROVED BY THE COURT IS THAT IN MOST INSTANCES IT WILL
EFFECTIVELY DENY TO THE TAXPAYER THE "LAST CLEAR CHANCE" WHICH CONGRESS
CLEARLY MEANT TO AFFORD AND SUBSTITUTE A VERY FUZZY CHANCE INDEED. 

I REACH THIS CONCLUSION ON WHAT I REGARD AS COMMON-SENSE GROUNDS. 
IN PRACTICE, THE ACCUMULATED-EARNINGS PROVISIONS ARE APPLIED ONLY TO
CLOSELY HELD CORPORATIONS, CONTROLLED BY RELATIVELY FEW SHAREHOLDERS. 
/1/  AS THE COURT ADMITS, THE SHAREHOLDERS ALMOST ALWAYS WILL HAVE BEEN
ADVISED THAT ACCUMULATION OF CORPORATE EARNINGS WILL RESULT IN
INDIVIDUAL TAX SAVINGS.  THAT FACT WILL BE BEFORE THE JURY.  IN ACCORD
WITH THE COURT'S DECISION, THE JURY WILL BE INSTRUCTED THAT "IT IS
SUFFICIENT IF (AVOIDANCE OF SHAREHOLDERS' TAX) IS ONE OF THE PURPOSES
OF THE COMPANY'S ACCUMULATION POLICY." 

UNDER THESE CIRCUMSTANCES, THE JURY IS VERY LIKELY TO BELIEVE THAT
IT MUST FIND THE FORBIDDEN PURPOSE AND IMPOSE THE TAX WHENEVER THE
GOVERNMENT SHOWS THAT THE TAXPAYER HAS ACCUMULATED EARNINGS WITH
KNOWLEDGE OF THE RESULTANT TAX SAVING, IRRESPECTIVE OF ANY CONTRARY
EVIDENCE PUT FORWARD BY THE TAXPAYER.  THE APPROVED INSTRUCTION SIMPLY
TELLS THE JURY THAT THE TAXPAYER MUST HAVE HAD A "PURPOSE" TO AVOID
INDIVIDUAL TAXES.  IN EVERYDAY SPEECH, WE COMMONLY SAY THAT A PERSON
HAS A "PURPOSE" TO DO SOMETHING WHEN HE ACTS WITH KNOWLEDGE THAT THE
THING WILL INEVITABLY RESULT.  EVEN WERE THE JURY LEGALLY
KNOWLEDGEABLE, IT MIGHT REACH THE SAME CONCLUSION, FOR, ASSUMING THAT
THE WORD "PURPOSE" AS USED IN SEC. 532 IS SYNONYMOUS WITH #INTENTION,"
/2/  THERE IS AMPLY AUTHORITY FOR THE PROPOSITION THAT AN ACTOR WILL BE
DEEMED TO HAVE AN "INTENTION" TO CAUSE CONSEQUENCES OF AN ACT IF "THE
ACTOR . . . BELIEVES THAT THE CONSEQUENCES ARE SUBSTANTIALLY CERTAIN TO
RESULT FROM (THE ACT)."  /3/  TO CONFRONT THE TAXPAYER WITH THIS
LIKELIHOOD THAT ITS EVIDENCE OF ANOTHER PURPOSE WILL BE ENTIRELY
DISREGARDED IS INCONSISTENT WITH THE PROVISION OF SEC. 533(A) WHICH
EXPLICITLY AFFORDS THE TAXPAYER AN OPPORTUNITY TO AVOID THE TAX BY
SHOWING "BY THE PREPONDERANCE OF THE EVIDENCE" THAT IT HAD A "CONTRARY"
PURPOSE.     THE COURT WHILE CONCEDING THAT THE SHAREHOLDERS WILL KNOW
OF THE EXPECTED TAX SAVING "IN NEARLY EVERY CASE," SEE ANTE, AT 309,
REASONS THAT THE TAXPAYER WILL HAVE ITS OPPORTUNITY BECAUSE "(IT IS
STILL OPEN TO THE TAXPAYER TO SHOW THAT EVEN THOUGH KNOWLEDGE OF THE
TAX CONSEQUENCES WAS PRESENT, THAT KNOWLEDGE DID NOT CONTRIBUTE TO THE
DECISION TO ACCUMULATE EARNINGS."  IBID.  IF, AS APPEARS FROM THE
COURT'S OPINION, THIS EXEGESIS IS NOT TO BE A PART OF THE JURY
INSTRUCTION, THEN THE COURT IS SIMPLY ENGAGING IN WISHFUL THINKING.  IF
BY CHANGE THE EXPLICATION IS TO BE INCLUDED IN THE INSTRUCTION, THEN
THE JURY WILL BE TOLD TO IMPOSE THE TAX ONLY IF IT FINDS THAT A DESIRE
TO AVOID TAX "CONTRIBUTED) TO THE DECISION TO ACCUMULATE EARNINGS." 
SUCH AN INSTRUCTION WOULD AT LEAST INFORM THE JURY THAT THE TAX
CONSEQUENCE MUST ACTUALLY HAVE BEEN IN THE SHAREHOLDERS' MINDS WHEN
THEY DECIDED TO ACCUMULATE.  HOWEVER, ONCE THE SHAREHOLDERS ARE SHOWN
TO HAVE HAD KNOWLEDGE OF THE TAX SAVING, IT STILL WILL BE
EXTRAORDINARILY DIFFICULT FOR THE TAXPAYER TO CONVINCE THE JURY THAT
THE KNOWLEDGE DID NOT PLAY SOME PART, HOWEVER SLIGHT, IN THE DECISION. 
AGAIN, IT SEEMS TO ME THAT SUCH AN INSTRUCTION WOULD NOT GIVE PROPER
SCOPE TO THE CONGRESSIONAL INTENTION THAT THE TAXPAYER HAVE A CHANCE TO
PROVE "BY THE PREPONDERANCE OF THE EVIDENCE" THAT IT HAD A "CONTRARY"
PURPOSE.  I WOULD THEREFORE ADOPT AN INSTRUCTION LESS LOADED AGAINST
THE TAXPAYER. 

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT DECIDED, AND RESPONDENT
ARGUES, THAT THE TAX SHOULD APPLY ONLY IF THE JURY FINDS THAT TAX
AVOIDANCE WAS THE "DOMINANT, CONTROLLING, OR IMPELLING MOTIVE" FOR THE
ACCUMULATION.  I AGREE WITH THE COURT THAT SUCH AN INSTRUCTION WOULD BE
IMPROPER.  IT APPARENTLY WOULD REQUIRE THE GOVERNMENT TO SHOW THAT TAX
AVOIDANCE WAS STRONGER THAN ANY OTHER MOTIVE, AND PERHAPS THAT IT WAS
STRONGER THAN ALL OTHER MOTIVES PUT TOGETHER.  THIS WOULD LARGELY
NEGATE THE STATUTORY PRESUMPTION OF IMPROPER PURPOSE CONTAINED IN SEC.
533(A).  IN MY VIEW, IT WOULD ALSO RESULT IN NONIMPOSITION OF TAX IN
CASES WHERE CONGRESS MEANT THERE TO BE LIABILITY, FOR I THINK THAT
CONGRESS MUST AT LEAST HAVE INTENDED THAT THE TAX SHOULD APPLY WHENEVER
THE TAXPAYER WOULD HAVE DISTRIBUTED, INSTEAD OF ACCUMULATING, CORPORATE
EARINGS HAD THERE BEEN NO POSSIBILITY OF A TAX SAVING. 

THESE CONSIDERATIONS SUGGEST WHAT I BELIEVE TO BE THE BEST RULE:
THE JURY SHOULD BE INSTRUCTED TO IMPOSE THE TAX IF IT FINDS THAT THE
TAXPAYER WOULD NOT HAVE ACCUMULATED EARNINGS BUT FOR ITS KNOWLEDGE THAT
A TAX SAVING WOULD RESULT.  THIS "BUT FOR CAUSE" TEST WOULD BE
CONSISTENT WITH THE STATUTORY LANGUAGE.  IT WOULD ALLOW THE GOVERNMENT
TO SUCCEED IF IT COULD SHOW, WITH THE AID OF THE SEC. 533(A)
PRESUMPTION, THAT WITHOUT THE SPUR OF TAX AVOIDANCE THE TAXPAYER WOULD
NOT HAVE ACCUMULATED THE EARNINGS, THUS GIVING EFFECT TO THE
PRESUMPTION AND FULFILLING CONGRESS' DESIRE TO PENALIZE THOSE WITH A
"PURPOSE" TO AVOID THE TAX.  IT WOULD PERMIT THE TAXPAYER TO ESCAPE THE
TAX IF IT COULD CONVINCE THE JURY THAT FOR OTHER, PERHAPS IRRATIONAL,
REASONS IT WOULD HAVE ACCUMULATED EVEN HAD NO TAX SAVING BEEN POSSIBLE,
THUS AFFORDING THE OPPORTUNITY FOR PROOF OF A "CONTRARY" PURPOSE WHICH
CONGRESS INTENDED TO PROVIDE.  IN ADDITION, I BELIEVE THAT THIS
INSTRUCTION WOULD BE RELATIVELY EASY FOR A JURY TO UNDERSTAND AND
APPLY.  FOR ALL OF THESE REASONS, I CONSIDER IT PREFERABLE TO THE
STANDARD ADOPTED BY THE COURT. 

ASSISTANT ATTORNEY GENERAL ROGOVIN ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, HARRIS
WEINSTEIN, RICHARD C. PUGH, AND MARTIN T. GOLDBLUM. 

RICHARD L. BRAUNSTEIN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS BERNARD J. LONG. 

RICHARD E. NOLAN AND JOHN P. CARROLL, JR., FILED A BRIEF FOR THE
SHAW-WALKER CO., AS AMICUS CURIAE, URGING AFFIRMANCE. 
..END :

















BERGER V. CALIFORNIA, 393 U.S. 314 


       BERGER V. CALIFORNIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL
OF

           CALIFORNIA, SECOND APPELLATE DISTRICT. 

        NO. 221, MISC.-- DECIDED JANUARY 13, 1969. 


THE HOLDING IN BARBER V. PAGE, 390 U.S. 719, THAT THE ABSENCE OF A
WITNESS FROM THE JURISDICTION WOULD NOT JUSTIFY THE USE AT TRIAL OF
PRELIMINARY HEARING TESTIMONY UNLESS THE STATE HAD MADE A GOOD-FAITH
EFFORT TO SECURE THE WITNESS' PRESENCE, SHOULD BE GIVEN RETROACTIVE
APPLICATION. 

CERTIORARI GRANTED; 258 CAL.APP.2D 622, 66 CAL.RPTR.  213, VACATED
AND REMANDED. 

PER CURIAM. 

PETITIONER WAS CONVICTED OF ROBBERY AND KIDNAPING FOR THE PURPOSE OF
ROBBERY.  THE VICTIM, ONE CARL ARTHUR DUNSTON, TESTIFIED AGAINST
PETITIONER AT A PRELIMINARY HEARING; THERE WAS EVIDENCE THAT AT THE
TIME OF THE TRIAL DUNSTON WAS IN COLORADO.  A STATE INVESTIGATOR TRIED
TO CONTACT DUNSTON ON THE TELEPHONE; HE GOT THROUGH TO SOME OF
DUNSTON'S RELATIVES AND TO HIS EMPLOYER, BUT NOT TO DUNSTON HIMSELF. 
ALTHOUGH TWO TELEGRAMS WERE RECEIVED, ALLEGEDLY FROM DUNSTON, NO
SUBPOENA WAS SERVED.  AT TRIAL, THE TRANSCRIPT OF DUNSTON'S PRELIMINARY
HEARING TESTIMONY WAS INTRODUCED INTO EVIDENCE.  ON APPEAL, THE COURT
OF APPEAL FOR THE SECOND APPELLATE DISTRICT OF CALIFORNIA HELD THAT
THIS PROCEDURE DID NOT DENY PETITIONER HIS SIXTH AMENDMENT RIGHT TO BE
CONFRONTED WITH THE WITNESS AGAINST HIM SINCE DUNSTON WAS ABSENT FROM
THE STATE OF HIS OWN FREE WILL AND SINCE PETITIONER'S COUNSEL HAD HAD
AN ADEQUATE OPPORTUNITY TO CROSS-EXAMINE DUNSTON AT THE PRELIMINARY
HEARING.  258 CAL.APP.2D 622, 66 CAL.RPTR.  213 (1968).  THE CALIFORNIA
SUPREME COURT DENIED PETITIONER A HEARING ON APRIL 4, 1968.  NINETEEN
DAYS LATER WE HELD IN THE CASE OF BARBER V. PAGE, 390 U.S. 719, THAT
THE ABSENCE OF A WITNESS FROM THE JURISDICTION WOULD NOT JUSTIFY THE
USE AT TRIAL OF PRELIMINARY HEARING TESTIMONY UNLESS THE STATE HAD MADE
A GOOD-FAITH EFFORT TO SECURE THE WITNESS' PRESENCE.  THE SOLE QUESTION
IN THIS CASE IS WHETHER THE HOLDING OF BARBER V. PAGE SHOULD BE GIVEN
RETROACTIVE APPLICATION.  WE THINK THAT IT SHOULD. 

CLEARLY, PETITIONER'S INABILITY TO CROSS-EXAMINE DUNSTON AT TRIAL
MAY HAVE HAD A SIGNIFICANT EFFECT ON THE "INTEGRITY OF THE FACT-FINDING
PROCESS."  LINKLETTER V. WALKER, 381 U.S. 618, 639 (1965); CF. ROBERTS
V. RUSSELL, 392 U.S. 293 (1968); MCCONNELL V. RHAY, ANTE, P. 2 (1968). 
AS WE POINTED OUT IN BARBER V. PAGE, ONE OF THE IMPORTANT OBJECTS OF
THE RIGHT OF CONFRONTATION WAS TO GUARANTEE THAT THE FACT FINDER HAD AN
ADEQUATE OPPORTUNITY TO ASSESS THE CREDIBILITY OF WITNESSES.  390
U.S.,AT 721.  AND CALIFORNIA'S CLAIM OF A SIGNIFICANT COUNTERVAILING
INTEREST BASED UPON ITS RELIANCE ON PREVIOUS STANDARDS, SEE STOVALL V.
DENNO, 388 U.S. 293, 297 (1967), IS MOST UNPERSUASIVE.  BARBER V. PAGE
WAS CLEARLY FORESHADOWED, IF NOT PREORDAINED, BY THIS COURT'S DECISION
IN POINTER V. TEXAS, 380 U.S. 400 (1965), WHICH WAS HANDED DOWN MORE
THAN A YEAR BEFORE PETITIONER'S TRIAL.  ACCORDINGLY, WE CAN SEE NO
REASON WHY BARBER V. PAGE SHOULD NOT BE GIVEN FULLY RETROACTIVE
APPLICATION. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF
APPEAL IS VACATED AND THE CASE IS REMANDED FOR RECONSIDERATION IN LIGHT
OF THIS COURT'S DECISION IN BARBER V. PAGE, 390 U.S. 719 (1968). 

              IT IS SO ORDERED. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, WILLIAM E. JAMES,
ASSISTANT ATTORNEY GENERAL, AND MARVIN A. BAUER, DEPUTY ATTORNEY
GENERAL, FOR RESPONDENT. 
..END :
























MARKHAM V. WASHINGTON, 393 U.S. 316 


       MARKHAM ADVERTISING CO., INC., ET AL. V. WASHINGTON ET AL.

        APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

        NO. 648.  DECIDED JANUARY 13, 1969. 


73 WASH.2D 405, 439 P.2D 248, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

ALFRED J. SCHWEPPE AND THOMAS R. BEIERLE FOR APPELLANTS. 
..END :














BOYD V. CLARK, 393 U.S. 316 


       BOYD ET AL. V. CLARK, ATTORNEY GENERAL, ET AL.

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

        NO. 490.  DECIDED JANUARY 13, 1969. 


287 F.SUPP.  561, AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED, CLARK V. GABRIEL, ANTE, P. 256, WITHOUT
REACHING THE JURISDICTIONAL QUESTION RAISED UNDER 28 U.S.C. 1331. 

VICTOR RABINOWITZ AND LEONARD B. BOUDIN FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD FOR APPELLEES. 
..END :









BENNETT V. COTTINGHAM, 393 U.S. 317 


       BENNETT ET AL. V. COTTINGHAM ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

 NORTHERN DISTRICT OF ALABAMA. 

        NO. 665.  DECIDED JANUARY 13, 1969. 


290 F.SUPP.  759, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

THE CHIEF JUSTICE, MR. JUSTICE HARLAN, AND MR. JUSTICE BRENNAN ARE
OF THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 

JACK GREENBERG, MICHAEL MELTSNER, MELVYN ZARR, OSCAR W. ADAMS, JR.,
AND ANTHONY G. AMSTERDAM FOR APPELLANTS. 

MACDONALD GALLION, ATTORNEY GENERAL OF ALABAMA, PRO SE, AND ROBERT
P. BRADLEY, ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :





FREED V. BALDI, 393 U.S. 317 


       FREED V. BALDI ET AL.

        APPEAL FROM THE SUPREME COURT OF COLORADO. 

        NO. 652.  DECIDED JANUARY 13, 1969. 


-- COLO.-- , 443 P.2D 716, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

GEORGE LOUIS CREAMER FOR APPELLANT. 
..END :














WARD V. JOHNSON, 393 U.S. 318 


       WARD ET AL. V. JOHNSON, PRESIDENT OF THE UNITED STATES, ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS. 

        NO. 703.  DECIDED JANUARY 13, 1969. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED
FOR WANT OF JURISDICTION. 

SOLICITOR GENERAL GRISWOLD FOR APPELLEES. 
..END :







ESTRIN V. MOSS, 393 U.S. 318 


       ESTRIN ET AL. V. MOSS, COMMISSIONER OF AGRICULTURE OF

           TENNESSEE, ET AL.

        APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

        NO. 684.  DECIDED JANUARY 13, 1969. 


221 TENN. 657, 430 S.W.2D 345, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

ROBERT W. HEALY FOR APPELLANTS. 

GEORGE F. MCCANLESS, ATTORNEY GENERAL OF TENNESSEE, AND PAUL E.
JENNINGS, ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :








COX V. UNITED STATES, 393 U.S. 319 


       COX ET AL. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

        DISTRICT OF MISSOURI. 

        NO. 708.  DECIDED JANUARY 13, 1969. 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL ZIMMERMAN,
HOWARD E. SHAPIRO, ROBERT W. GINNANE, AND FRITZ R. KAHN FOR THE UNITED
STATES ET AL.
..END :









WILLIAMS V. CITY OF PITTSBURGH, 393 U.S. 319 


       WILLIAMS & CO., INC. V. CITY OF PITTSBURGH ET AL.

        APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

       NO. 706.  DECIDED JANUARY 13, 1969. 


430 PA. 509, 244 A.2D 37, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

NORMAN J. COWIE FOR APPELLANT. 

ROBERT E. DAUER FOR APPELLEES. 
..END :











WILLIAMS V. VIRGINIA STATE BOARD OF ELECTIONS, 393 U.S. 320 


       WILLIAMS ET AL. V. VIRGINIA STATE BOARD OF ELECTIONS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF VIRGINIA. 

      NO. 733.  DECIDED JANUARY 13, 1969. 


288 F.SUPP.  622, AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

HOWARD S. SPERING AND ROBERT L. MONTAGUE III FOR APPELLANTS. 
..END :











BENNETT V. MISSISSIPPI, 393 U.S. 320 


       BENNETT V. MISSISSIPPI. 

        APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

        NO. 719.  DECIDED JANUARY 13, 1969. 


211 SO.2D 520, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

ALBERT SIDNEY JOHNSTON, JR., FOR APPELLANT. 
..END :












MID-VALLEY PIPELINE CO. V. KING, 393 U.S. 321 


       MID-VALLEY PIPELINE CO. V. KING, COMMISSIONER OF REVENUE, ET

           AL.

        APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

        NO. 756.  DECIDED JANUARY 13, 1969. 


221 TENN. 724, 431 S.W.2D 277, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE STEWART AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

H. VINCENT E. MITCHELL AND J. MARTIN REGAN FOR APPELLANT. 

GEORGE F. MCCANLESS, ATTORNEY GENERAL OF TENNESSEE, AND MILTON P.
RICE, DEPUTY ATTORNEY GENERAL, FOR APPELLEES. 
..END :




HILLIARD V. CITY OF GAINESVILLE, 393 U.S. 321 


       HILLIARD V. CITY OF GAINESVILLE. 

        APPEAL FROM THE SUPREME COURT OF FLORIDA. 

        NO. 745.  DECIDED JANUARY 13, 1969. 


213 SO.2D 689, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

RICHARD W. WILSON FOR APPELLANT. 

OSEE R. FAGAN FOR APPELLEE. 
..END :








BROWN V. COINER, 393 U.S. 322 


       BROWN V. COINER, WARDEN. 

        APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

        NO. 871, MISC.  DECIDED JANUARY 13, 1969. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














ADKINS V. DORNBOS, 393 U.S. 322 


       ADKINS TRANSFER CO., INC., ET AL. V. DORNBOS ET AL.

        APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

     NO. 738.  DECIDED JANUARY 13, 1969. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A FINAL JUDGMENT. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
THE APPEAL SHOULD BE DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION. 

MR. JUSTICE STEWART IS OF THE OPINION THAT FURTHER CONSIDERATION OF
THE QUESTION OF JURISDICTION SHOULD BE POSTPONED TO THE HEARING OF THE
CASE ON THE MERITS. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

H. WINSTON HATHAWAY FOR APPELLANTS. 

HAROLD S. SAWYER FOR APPELLEES DORNBOS ET AL., AND ROBERT E.
PLUNKETT FOR APPELLEE THE KROGER CO.
..END :





















SNELL V. WYMAN, 393 U.S. 323 


       SNELL ET AL. V. WYMAN, COMMISSIONER OF DEPARTMENT OF SOCIAL

           SERVICES OF NEW YORK, ET AL.

 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

       SOUTHERN DISTRICT OF NEW YORK. 

        NO. 191.  DECIDED JANUARY 13, 1969. 


281 F.SUPP.  853, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

JAMES J. GRAHAM AND MARTIN GARBUS FOR APPELLANTS. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSCHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND CHARLES A. LA
TORELLA, JR., AND MARIA L. MARCUS, ASSISTANT ATTORNEYS GENERAL, FOR
WYMAN, AND J. LEE RANKIN AND STANLEY BUCHSBAUM FOR GINSBERG,
APPELLEES. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WEISL, PETER
L. STRAUSS, AND MORTON HOLLANDER FOR THE UNITED STATES, AS AMICUS
CURIAE, URGING AFFIRMANCE. 
..END :


















FTC V. TEXACO, 393 U.S. 223 


       FEDERAL TRADE COMMISSION V. TEXACO INC. ET AL.

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT. 

NO. 24.  ARGUED NOVEMBER 13, 1968.-- DECIDED DECEMBER 16,

        1968. 


RESPONDENT TEXACO INC., ONE OF THE COUNTRY'S LARGEST PETROLEUM
COMPANIES, MADE AN AGREEMENT WITH RESPONDENT GOODRICH TO PROMOTE THE
SALE OF GOODRICH TIRES, BATTERIES, AND ACCESSORIES (TBA) TO TEXACO'S
SERVICE STATION DEALERS.  THE FEDERAL TRADE COMMISSION (FTC) IN THIS
PROCEEDING AND TWO RELATED PROCEEDINGS, EACH OF WHICH INVOLVED A MAJOR
OIL COMPANY AND A MAJOR TIRE MANUFACTURER, CHALLENGED THE SALES
COMMISSION ARRANGEMENTS AS AN UNFAIR METHOD OF COMPETITION IN VIOLATION
OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT.  RELYING ON THIS COURT'S
DECISION UPHOLDING INVALIDATION OF SUCH AN ARRANGEMENT IN ONE OF THESE
CASES, ATLANTIC REFINING CO. V. FTC, 381 U.S. 357 (1965), THE FTC ON
REMAND REAFFIRMED ITS CONCLUSION THAT THE TEXACO-GOODRICH ARRANGEMENT
VIOLATED SEC. 5 OF THE ACT.  THE COURT OF APPEALS REVERSED ON THE
GROUND THAT THE EVIDENCE DID NOT SUPPORT THE FTC'S CONCLUSIONS. 
RESPONDENTS CONTEND, INTER ALIA, THAT THE ABSENCE HERE OF "OVERT
ECONOMIC PRACTICES" DISTINGUISHES THIS CASE FROM ATLANTIC, HELD: 

1.  THE FTC'S DETERMINATIONS OF "UNFAIR METHODS OF COMPETITION"
UNDER SEC. 5 OF THE ACT ARE ENTITLED TO GREAT WEIGHT.  PP. 225-226. 

2.  TEXACO, AS THE RECORD CLEARLY SHOWS AND RESPONDENTS DO NOT
DISPUTE, HOLDS DOMINANT ECONOMIC POWER OVER ITS DEALERS.  PP. 226-227. 

3.  THE SALES-COMMISSION SYSTEM FOR MARKETING TBA IS INHERENTLY
COERCIVE, AND, DESPITE THE ABSENCE HERE OF THE KIND OF OVERTLY COERCIVE
ACTS SHOWN IN ATLANTIC, TEXACO EXERTED ITS DOMINANT ECONOMIC POWER OVER
ITS DEALERS.  PP. 228-229. 

4.  THE FTC CORRECTLY DETERMINED THAT THE TEXACO-GOODRICH
ARRANGEMENT ADVERSELY AFFECTED COMPETITION IN MARKETING TBA, THE TBA
MANUFACTURER HAVING PURCHASED THE OIL COMPANY'S ECONOMIC POWER AND USED
IT AS A PARTIAL SUBSTITUTE FOR COMPETITIVE MERIT IN GAINING A MAJOR
SHARE OF THE SUBSTANTIAL TBA MARKET.  PP. 229-231. 

127 U.S.APP.D.C. 349, 383 F.2D 942, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE FTC WAS WARRANTED
IN FINDING THAT IT WAS AN UNFAIR METHOD OF COMPETITION IN VIOLATION OF
SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, 38 STAT. 719, AS AMENDED,
15 U.S.C. 45, FOR RESPONDENT TEXACO TO UNDERTAKE TO INDUCE ITS SERVICE
STATION DEALERS TO PURCHASE GOODRICH TIRES, BATTERIES, AND ACCESSORIES
(HEREAFTER REFERRED TO AS TBA) IN RETURN FOR A COMMISSION PAID BY
GOODRICH TO TEXACO.  IN THREE RELATED PROCEEDINGS INSTITUTED IN 1961,
THE COMMISSION CHALLENGED THE SALES-COMMISSION METHOD OF DISTRIBUTING
TBA AND IN EACH CASE NAMED AS A RESPONDENT A MAJOR OIL COMPANY AND A
MAJOR TIRE MANUFACTURER.  AFTER EXTENSIVE HEARINGS, THE COMMISSION
CONCLUDED THAT EACH OF THE ARRANGEMENTS CONSTITUTED AN UNFAIR METHOD OF
COMPETITION AND ORDERED EACH TIRE COMPANY AND EACH OIL COMPANY TO
REFRAIN FROM ENTERING INTO ANY SUCH COMMISSION ARRANGEMENTS.  IN ONE OF
THESE CASES, ATLANTIC REFINING CO. V. FTC, 381 U.S. 357 (1965), THIS
COURT AFFIRMED THE DECISION OF THE COURT OF APPEALS FOR THE SEVENTH
CIRCUIT SUSTAINING THE COMMISSIONER'S ORDER AGAINST ATLANTIC REFINING
COMPANY AND THE GOODYEAR TIRE & RUBBER COMPANY.  IN A SECOND CASE,
SHELL OIL CO. V. FTC, 360 F.2D 470, CERT. DENIED, 385 U.S. 1002, THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT, FOLLOWING THE COURT'S DECISION
IN ATLANTIC, SUSTAINED THE COMMISSION'S ORDER AGAINST THE SHELL OIL
COMPANY AND THE FIRESTONE TIRE & RUBBER COMPANY.  IN CONTRAST TO THE
DECISIONS OF THESE TWO COURTS OF APPEALS, THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT SET ASIDE THE COMMISSION'S ORDER IN THIS,
THE THIRD OF THE THREE CASES, INVOLVING RESPONDENTS GOODRICH AND
TEXACO.  118 U.S.APP.D.C. 366, 336 F.2D 754 (1964).  /1/  THE
COMMISSION PETITIONED THIS COURT FOR REVIEW AND, ONE WEEK FOLLOWING OUR
ATLANTIC DECISION, WE GRANTED CERTIORARI AND REMANDED FOR FURTHER
CONSIDERATION IN LIGHT OF THAT OPINION.  381 U.S. 739 (1965).  THE
COMMISSION, ON REMAND, REAFFIRMED ITS CONCLUSION THAT THE TEXACO
GOODRICH ARRANGEMENT, LIKE THAT INVOLVED IN THE OTHER TWO CASES,
VIOLATED SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT.  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT AGAIN REVERSED, THIS TIME
HOLDING THAT THE COMMISSION HAD FAILED TO ESTABLISH THAT TEXACO HAD
EXERCISED ITS DOMINANT ECONOMIC POWER OVER ITS DEALERS OR THAT THE
TEXACO-GOODRICH ARRANGEMENT HAD AN ADVERSE EFFECT ON COMPETITION.  127
U.S.APP.D.C. 349, 383 F.2D 942.  WE GRANTED CERTIORARI TO DETERMINE
WHETHER THE COURT BELOW HAD CORRECTLY APPLIED THE PRINCIPLES OF OUR
ATLANTIC DECISION.  390 U.S. 979. 

CONGRESS ENACTED SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT TO
COMBAT IN THEIR INCIPIENCY TRADE PRACTICES THAT EXHIBIT A STRONG
POTENTIAL FOR STIFLING COMPETITION.  IN LARGE MEASURE THE TASK OF
DEFINING "UNFAIR METHODS OF COMPETITION" WAS LEFT TO THE COMMISSION. 
THE LEGISLATIVE HISTORY SHOWS THAT CONGRESS CONCLUDED THAT THE BEST
CHECK ON UNFAIR COMPETITION WOULD BE "AN ADMINISTRATIVE BODY OF
PRACTICAL MEN . . . WHO WILL BE ABLE TO APPLY THE RULE ENACTED BY
CONGRESS TO PARTICULAR BUSINESS SITUATIONS, SO AS TO ERADICATE EVILS
WITH THE LEAST RISK OF INTERFERING WITH LEGITIMATE BUSINESS
OPERATIONS."  H.R. CONF. REP. NO. 1142, 63D CONG., 2D SESS., 19. 
ATLANTIC REFINING CO. V. FTC, 381 U.S. 357, 367.  WHILE THE ULTIMATE
RESPONSIBILITY FOR THE CONSTRUCTION OF THIS STATUTE RESTS WITH THE
COURTS, WE HAVE HELD ON MANY OCCASIONS THAT THE DETERMINATIONS OF THE
COMMISSION, AN EXPERT BODY CHARGED WITH THE PRACTICAL APPLICATION OF
THE STATUTE, ARE ENTITLED TO GREAT WEIGHT.  FTC V. MOTION PICTURE
ADVERTISING SERV. CO., 344 U.S. 392, 396 (1953); FTC V. CEMENT
INSTITUTE, 333 U.S. 683, 720 (1948).  THIS IS ESPECIALLY TRUE HERE,
WHERE THE COMMISSION HAS HAD OCCASION IN THREE RELATED PROCEEDINGS TO
STUDY AND ASSESS THE EFFECTS ON COMPETITION OF THE SALES-COMMISSION
ARRANGEMENT FOR MARKETING TBA.  WITH THIS IN MIND, WE TURN TO THE FACTS
OF THIS CASE. 

THE COMMISSION AND THE RESPONDENTS AGREE THAT THE TEXACO-GOODRICH
ARRANGEMENT FOR MARKETING TBA WILL FALL UNDER THE RATIONALE OF OUR
ATLANTIC DECISION IF THE COMMISSION WAS CORRECT IN ITS THREE ULTIMATE
CONCLUSIONS (1) THAT TEXACO HAS DOMINANT ECONOMIC POWER OVER ITS
DEALERS; (2) THAT TEXACO EXERCISES THAT POWER OVER ITS DEALERS IN
FULFILLING ITS AGREEMENT TO PROMOTE AND SPONSOR GOODRICH PRODUCTS; AND
(3) THAT ANTICOMPETITIVE EFFECTS RESULT FROM THE EXERCISE OF THAT
POWER. 

THAT TEXACO HOLDS DOMINANT ECONOMIC POWER OVER ITS DEALERS IS
CLEARLY SHOWN BY THE RECORD IN THIS CASE.  IN FACT, RESPONDENTS DO NOT
CONTEST THE CONCLUSION OF THE COURT OF APPEALS BELOW AND THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT IN SHELL THAT SUCH POWER IS "INHERENT IN
THE STRUCTURE AND ECONOMICS OF THE PETROLEUM DISTRIBUTION SYSTEM."  127
U.S.APP.D.C. 349, 353, 383 F.2D 942, 946; 360 F.2D 470, 481 (C.A. 5TH
CIR.).  NEARLY 40% OF THE TEXACO DEALERS LEASE THEIR STATIONS FROM
TEXACO.  THESE DEALERS TYPICALLY HOLD A ONE-YEAR LEASE ON THEIR
STATIONS, AND THESE LEASES ARE SUBJECT TO TERMINATION AT THE END OF THE
YEAR ON 10 DAYS' NOTICE.  AT ANY TIME DURING THE YEAR A MAN'S LEASE ON
HIS SERVICE STATION MAY BE IMMEDIATELY TERMINATED BY TEXACO WITHOUT
ADVANCE NOTICE IF IN TEXACO'S JUDGMENT ANY OF THE "HOUSEKEEPING"
PROVISIONS OF THE LEASE, RELATING TO THE USE AND APPEARANCE OF THE
STATION, ARE NOT FULFILLED.  THE CONTRACT UNDER WHICH TEXACO DEALERS
RECEIVE THEIR VITAL SUPPLY OF GASOLINE AND OTHER PETROLEUM PRODUCTS
ALSO RUNS FROM YEAR TO YEAR AND IS TERMINABLE ON 30 DAYS' NOTICE UNDER
TEXACO'S STANDARD FORM CONTRACT.  THE AVERAGE DEALER IS A MAN OF
LIMITED MEANS WHO HAS WHAT IS FOR HIM A SIZABLE INVESTMENT IN HIS
STATION.  HE STANDS TO LOSE MUCH IF HE INCURS THE ILL WILL OF TEXACO. 
AS JUDGE WISDOM WROTE IN SHELL, "A MAN OPERATING A GAS STATION IS BOUND
TO BE OVERAWED BY THE GREAT CORPORATION THAT IS HIS SUPPLIER, HIS
BANKER, AND HIS LANDLORD."  360 F.2D 470, 487. 

IT IS AGAINST THE BACKGROUND OF THIS DOMINANT ECONOMIC POWER OVER
THE DEALERS THAT THE SALES-COMMISSION ARRANGEMENT MUST BE VIEWED.  THE
TEXACO-GOODRICH AGREEMENT PROVIDES THAT GOODRICH WILL PAY TEXACO A
COMMISSION OF 10% ON ALL PURCHASES BY TEXACO RETAIL SERVICE STATION
DEALERS OF GOODRICH TBA.  IN RETURN, TEXACO AGREES TO "PROMOTE THE SALE
OF GOODRICH PRODUCTS" TO TEXACO DEALERS.  DURING THE FIVE-YEAR PERIOD
STUDIED BY THE COMMISSION (1952-1956) $245,000,000 OF THE GOODRICH AND
FIRESTONE TBA SPONSORED BY TEXACO WAS PURCHASED BY TEXACO DEALERS, FOR
WHICH TEXACO RECEIVED ALMOST $22,000,000 IN RETAIL AND WHOLESALE
COMMISSIONS.  EVIDENCE BEFORE THE COMMISSION SHOWED THAT TEXACO CARRIED
OUT ITS AGREEMENT TO PROMOTE GOODRICH PRODUCTS THROUGH CONSTANTLY
REMINDING ITS DEALERS OF TEXACO'S DESIRE THAT THEY STOCK AND SELL THE
SPONSORED GOODRICH TBA.  TEXACO EMPHASIZES THE IMPORTANCE OF TBA AND
THE RECOMMENDED BRANDS AS EARLY AS ITS INITIAL INTERVIEW WITH A
PROSPECTIVE DEALER AND REPEATS ITS RECOMMENDATION THROUGH A STEADY FLOW
OF CAMPAIGN MATERIALS UTILIZING GOODRICH PRODUCTS.  TEXACO SALESMEN,
THE PRIMARY LINK BETWEEN TEXACO AND THE DEALERS, PROMOTE GOODRICH
PRODUCTS IN THEIR DAY-TO-DAY CONTACT WITH THE TEXACO DEALERS.  THE
EVALUATION OF A DEALER'S STATION BY THE TEXACO SALESMAN IS OFTEN AN
IMPORTANT FACTOR IN DETERMINING WHETHER A DEALER'S CONTRACT OR LEASE
WITH TEXACO WILL BE RENEWED.  THUS THE TEXACO SALESMEN, WHOSE FAVORABLE
OPINION IS SO IMPORTANT TO EVERY DEALER, ARE THE KEY MEN IN THE
PROMOTION OF GOODRICH PRODUCTS, AND ON OCCASION ACCOMPANY THE GOODRICH
SALESMEN IN THEIR CALLS ON THE DEALERS.  FINALLY, TEXACO RECEIVES
REGULAR REPORTS ON THE AMOUNT OF SPONSORED TBA PURCHASED BY EACH
DEALER.  RESPONDENTS CONTEND, HOWEVER, THAT THESE REPORTS ARE USED ONLY
FOR MAINTAINING TEXACO'S ACCOUNTS WITH GOODRICH AND NOT FOR POLICING
DEALER PURCHASES. 

RESPONDENTS URGE THAT THE FACTS OF THIS CASE ARE FUNDAMENTALLY
DIFFERENT FROM THOSE INVOLVED IN ATLANTIC BECAUSE OF THE PRESENCE
THERE, AND THE ABSENCE HERE, OF "OVERT COERCIVE PRACTICES" DESIGNED TO
FORCE THE DEALERS TO PURCHASE THE SPONSORED BRAND OF TBA.  WE AGREE, AS
THE GOVERNMENT CONCEDES, THAT THE EVIDENCE IN THIS CASE REGARDING
COERCIVE PRACTICES IS CONSIDERABLY LESS SUBSTANTIAL THAN THE EVIDENCE
PRESENTED IN ATLANTIC.  THE ATLANTIC RECORD CONTAINED DIRECT EVIDENCE
OF DEALERS THREATENED WITH CANCELLATION OF THEIR LEASES, THE SETTING OF
DEALER QUOTAS FOR PURCHASE OF CERTAIN AMOUNTS OF SPONSORED TBA, THE
REQUIREMENT THAT DEALERS PURCHASE TBA FROM SINGLE ASSIGNED SUPPLY
POINTS, REFUSALS BY ATLANTIC TO HONOR CREDIT CARD CHARGES FOR
NONSPONSORED TBA, AND POLICING OF ATLANTIC DEALERS BY "PHANTOM
INSPECTORS."  WHILE THE EVIDENCE IN THE PRESENT CASE FAILS TO ESTABLISH
THE KIND OF OVERT COERCIVE ACTS SHOWN IN ATLANTIC, WE THINK IT CLEAR
NONETHELESS THAT TEXACO'S DOMINANT ECONOMIC POWER WAS USED IN A MANNER
WHICH TENDED TO FORECLOSE COMPETITION IN THE MARKETING OF TBA.  THE
SALES-COMMISSION SYSTEM FOR MARKETING TBA IS INHERENTLY COERCIVE.  A
SERVICE STATION DEALER WHOSE VERY LIVELIHOOD DEPENDS UPON THE
CONTINUING GOOD FAVOR OF A MAJOR OIL COMPANY IS CONSTANTLY AWARE OF THE
OIL COMPANY'S DESIRE THAT HE STOCK AND SELL THE RECOMMENDED BRAND OF
TBA.  THROUGH THE CONSTANT REMINDER OF THE TEXACO SALESMAN, THROUGH
DEMONSTRATION PROJECTS AND PROMOTIONAL MATERIALS, THROUGH ALL OF THE
DEALER'S CONTACTS WITH TEXACO, HE LEARNS THE LESSON THAT TEXACO WANTS
HIM TO PURCHASE FOR HIS STATION THE BRAND OF TBA WHICH PAYS TEXACO 10%
OF EVERY RETAIL ITEM THE DEALER BUYS.  WITH THE DEALER'S SUPPLY OF
GASOLINE, HIS LEASE ON HIS STATION, AND HIS TEXACO IDENTIFICATION
SUBJECT TO CONTINUING REVIEW, WE THINK IT FLIES IN THE FACE OF COMMON
SENSE TO SAY, AS TEXACO ASSERTS, THAT THE DEALER IS "PERFECTLY FREE" TO
REJECT TEXACO'S CHOSEN BRAND OF TBA.  EQUALLY APPLICABLE HERE IS THIS
COURT'S JUDGMENT IN ATLANTIC THAT "(IT IS DIFFICULT TO ESCAPE THE
CONCLUSION THAT THERE WOULD HAVE BEEN LITTLE POINT IN PAYING
SUBSTANTIAL COMMISSIONS TO OIL COMPANIES WERE IT NOT FOR THEIR ABILITY
TO EXERT POWER OVER THEIR WHOLESALERS AND DEALERS."  381 U.S.,AT 376. 

WE ARE SIMILARLY CONVINCED THAT THE COMMISSION WAS CORRECT IN
DETERMINING THAT THIS ARRANGEMENT HAS AN ADVERSE EFFECT ON COMPETITION
IN THE MARKETING OF TBA.  SERVICE STATIONS PLAY AN INCREASINGLY
IMPORTANT ROLE IN THE MARKETING OF TIRES, BATTERIES, AND OTHER
AUTOMOTIVE ACCESSORIES.  WITH FIVE MAJOR COMPANIES SUPPLYING VIRTUALLY
ALL OF THE TIRES THAT COME WITH NEW CARS, ONLY IN THE REPLACEMENT
MARKET CAN THE SMALLER COMPANIES HOPE TO COMPETE.  IDEALLY, EACH
SERVICE STATION DEALER WOULD STOCK THE BRANDS OF TBA THAT IN HIS
JUDGMENT WERE MOST FAVORED BY CUSTOMERS FOR PRICE AND QUALITY.  TO THE
EXTENT THAT DEALERS ARE INDUCED TO SELECT THE SPONSORED BRAND IN ORDER
TO MAINTAIN THE GOOD FAVOR OF THE OIL COMPANY UPON WHICH THEY ARE
DEPENDENT, THE OPERATION OF THE COMPETITIVE MARKET IS ADVERSELY
AFFECTED.  AS WE NOTED IN ATLANTIC, THE ESSENTIAL ANTICOMPETITIVE VICE
OF SUCH AN ARRANGEMENT IS "THE UTILIZATION OF ECONOMIC POWER IN ONE
MARKET TO CURTAIL COMPETITION IN ANOTHER."  381 U.S. 357, 369.  HERE
THE TBA MANUFACTURER HAS PURCHASED THE OIL COMPANY'S ECONOMIC POWER AND
USED IT AS A PARTIAL SUBSTITUTE FOR COMPETITIVE MERIT IN GAINING A
MAJOR SHARE OF THE TBA MARKET.  /2/  THE NONSPONSORED BRANDS DO NOT
COMPETE ON THE EVEN TERMS OF PRICE AND QUALITY COMPETITION; THEY MUST
OVERCOME, IN ADDITION, THE INFLUENCE OF THE DOMINANT OIL COMPANY THAT
HAS BEEN PAID TO INDUCE ITS DEALERS TO BUY THE RECOMMENDED BRAND. 
WHILE THE SUCCESS OF THIS ARRANGEMENT IN FORECLOSING COMPETITIONS FROM
THE TBA MARKET HAS NOT MATCHED THAT OF THE DIRECT COERCION EMPLOYED BY
ATLANTIC, WE FEEL THAT THE ANTICOMPETITIVE TENDENCIES OF SUCH A SYSTEM
ARE CLEAR, AND THAT THE COMMISSION WAS PROPERLY FULFILLING THE TASK
THAT CONGRESS ASSIGNED IT IN HALTING THIS PRACTICE IN ITS INCIPIENCY. 
THE COMMISSION IS NOT REQUIRED TO SHOW THAT A PRACTICE IT CONDEMNS HAS
TOTALLY ELIMINATED COMPETITION IN THE RELEVANT MARKET.  IT IS ENOUGHT
THAT THE COMMISSION FOUND THAT THE PRACTICE IN QUESTION UNFAIRLY
BURDENED COMPETITION FOR A NOT INSIGNIFICANT VOLUME OF COMMERCE. 
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392 (1947); UNITED
STATES V. LOEW'S, INC., 371 U.S. 38, 45, N. 4 (1962); ATLANTIC REFINING
CO. V. FTC, 381 U.S. 357, 371 (1965). 

THE COMMISSION WAS JUSTIFIED IN CONCLUDING THAT MORE THAN AN
INSUBSTANTIAL AMOUNT OF COMMERCE WAS INVOLVED.  TEXACO IS ONE OF THE
NATION'S LARGEST PETROLEUM COMPANIES.  IT SELLS ITS PRODUCTS TO
APPROXIMATELY 30,000 SERVICES STATIONS, OR ABOUT 16.5% OF ALL SERVICE
STATIONS IN THE UNITED STATES.  THE VOLUME OF SPONSORED TBA PURCHASED
BY TEXACO DEALERS IN THE FIVE-YEAR PERIOD 1952-1956 WAS $245,000,000,
ALMOST FIVE TIMES THE AMOUNT INVOLVED IN THE ATLANTIC CASE. 

FOR THE REASONS STATED ABOVE, WE REVERSE THE JUDGMENT BELOW AND
REMAND TO THE COURT OF APPEALS FOR ENFORCEMENT OF THE COMMISSION'S
ORDER WITH THE EXCEPTION OF PARAGRAPHS FIVE AND SIX OF THE ORDER
AGAINST TEXACO, THE SETTING ASIDE OF WHICH BY THE COURT OF APPEALS THE
GOVERMENT DOES NOT CONTEST. 

         REVERSED AND REMANDED.     /1/  THE SALES-COMMISSION
ARRANGEMENT BETWEEN TEXACO AND THE FIRESTONE TIRE & RUBBER COMPANY WAS
ALSO THE SUBJECT OF COMMISSION ACTION.  FIRESTONE IS NOT A RESPONDENT
IN THIS ACTION, HOWEVER, SINCE IT IS ALREADY SUBJECT TO A FINAL ORDER
OF THE COMMISSION PROHIBITING ITS USE OF A SALES-COMMISSION PLAN WITH
ANY OIL COMPANY.  SEE SHELL OIL CO. V. FTC, 360 F.2D 470, 474 (C.A. 5TH
CIR.), CERT. DENIED, 385 U.S. 1002. 

/2/  THE COMMISSION'S CONCLUSION THAT UNDER A SALES-COMMISSION PLAN,
A DEALER WOULD NOT MAKE HIS CHOICE SOLELY ON THE BASIS OF COMPETITIVE
MERIT WAS BOLSTERED BY THE TESTIMONY OF 31 SELLERS OF COMPETING
NONSPONSORED TBA THAT THEY WERE UNABLE TO SELL TO PARTICULAR TEXACO
STATIONS BECAUSE OF THE DEALERS' CONCERN THAT TEXACO WOULD DISAPPROVE
OF THEIR PURCHASE OF NONSPONSORED PRODUCTS. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION, WITH THE FOLLOWING STATEMENT.  TO THE
EXTENT THAT MY ACTION IN JOINING TODAY'S OPINION IS INCONSISTENT WITH
MY ACTION IN JOINING MY BROTHER STEWART'S DISSENT IN ATLANTIC REFINING
CO. V. FTC, 381 U.S. 357, 377 (1965), CANDOR COMPELS ME TO SAY THAT
FURTHER REFLECTION HAS CONVINCED ME THAT THE PORTIONS OF THE
COMMISSION'S ORDER WHICH THE COURT TODAY SUSTAINS WERE WITHIN THE
AUTHORITY GRANTED TO THE COMMISSION UNDER SEC. 5 OF THE FEDERAL TRADE
COMMISSION ACT. 

MR. JUSTICE STEWART, DISSENTING. 

WE ARE TOLD TODAY THAT "(THE SALES-COMMISSION SYSTEM FOR MARKETING
TBA IS INHERENTLY COERCIVE."  IF THAT IS SO, THEN THE COURT WENT TO A
GOOD DEAL OF UNNECESSARY TROUBLE IN ATLANTIC REFINING CO. V. FTC, 381
U.S. 357, 368, TO ESTABLISH THAT ATLANTIC "NOT ONLY EXERTED THE
PERSUASION THAT IS A NATURAL INCIDENT OF ITS ECONOMIC POWER, BUT
COUPLED WITH IT DIRECT AND OVERT THREATS OF REPRISAL.  . . . " 

THE COURT ACKNOWLEDGES THAT "THE EVIDENCE IN THIS CASE REGARDING
COERCIVE PRACTICES IS CONSIDERABLY LESS SUBSTANTIAL THAN THE EVIDENCE
PRESENTED IN ATLANTIC."  BUT THAT IS AN UNDERSTATEMENT.  FOR THE FACT
IS THAT IN THIS CASE THE COURT OF APPEALS WAS TOTALLY UNABLE TO "FIND
THAT TEXACO USED ITS CONTROLLING ECONOMIC POWER TO COMPEL ITS DEALERS
TO PURCHASE SPONSORED TBA."  127 U.S.APP.D.C. 349, 356, 383 F.2D 942,
949.  THAT IS WHY THIS COURT MUST PERFORCE CREATE TODAY'S PER SE RULE
OF "INHERENT" COERCION. 

FOR THE REASONS SET OUT AT SOME LENGTH IN MY SEPARATE OPINION IN
ATLANTIC, SUPRA, AT 377, I CANNOT AGREE TO ANY SUCH PER SE RULE. 
ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR PETITIONER.  ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL TURNER,
LAWRENCE G. WALLACE, JAMES MCI.  HENDERSON, AND ALVIN L. BERMAN. 

MILTON HANDLER AND EDGAR E. BARTON ARGUED THE CAUSE FOR
RESPONDENTS.  WITH THEM ON THE BRIEF WERE STANLEY D. ROBINSON AND
MACDONALD FLINN. 
..END :







OESTEREICH V. SELECTIVE SERVICE BD., 393 U.S. 233 


       OESTEREICH V. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 11,

           CHEYENNE, WYOMING, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

       TENTH CIRCUIT. 

        NO. 46.  ARGUED OCTOBER 24, 1968.-- DECIDED DECEMBER 16,

           1968. 


PETITIONER, A THEOLOGICAL STUDENT PREPARING FOR THE MINISTRY, WAS
CLASSIFIED IV-D BY HIS SELECTIVE SERVICE BOARD IN ACCORDANCE WITH SEC.
6(G) OF THE SELECTIVE SERVICE ACT, WHICH PROVIDES THAT "STUDENTS
PREPARING FOR THE MINISTRY" IN QUALIFIED SCHOOLS "SHALL BE EXEMPT FROM
TRAINING AND SERVICE" UNDER THE ACT.  HE RETURNED HIS REGISTRATION
CERTIFICATE "FOR THE SOLE PURPOSE OF EXPRESSING DISSENT FROM THE
PARTICIPATION BY THE UNITED STATES IN THE WAR IN VIETNAM."  HIS BOARD
THEN DECLARED HIM DELINQUENT FOR FAILURE (1) TO HAVE HIS REGISTRATION
CERTIFICATE IN HIS POSSESSION AND (2) TO PROVIDE THE BOARD WITH NOTICE
OF HIS LOCAL STATUS, AND CHANGED HIS CLASSIFICATION TO -I-A.
PETITIONER TOOK AN ADMINISTRATIVE APPEAL AND LOST, AND WAS ORDERED TO
REPORT FOR INDUCTION.  HE SUED TO RESTRAIN HIS INDUCTION, BUT THE
DISTRICT COURT DISMISSED THE COMPLAINT AND THE COURT OF APPEALS
AFFIRMED, IN PART ON THE BASIS OF SEC. 10(B)(3) OF THE MILITARY
SELECTIVE SERVICE ACT OF 1967, WHICH STATES THAT THERE SHALL BE NO PRE
INDUCTION JUDICIAL REVIEW "OF THE CLASSIFICATION OR PROCESSING OF ANY
REGISTRANT," JUDICIAL REVIEW BEING LIMITED TO A DEFENSE IN A CRIMINAL
PROSECUTION OR TO HABEAS CORPUS AFTER INDUCTION.  HELD:  PRE-INDUCTION
JUDICIAL REVIEW IS NOT PRECLUDED IN THIS CASE.  PP. 235-239. 

(A) THERE IS NO LEGISLATIVE AUTHORITY TO DENY AN UNEQUIVOCAL
STATUTORY EXEMPTION TO A REGISTRANT WHO HAS QUALIFIED FOR ONE BECAUSE
OF CONDUCT OR ACTIVITIES UNRELATED TO THE MERITS OF GRANTING OR
CONTINUING THE EXEMPTION, AND DELINQUENCY PROCEEDINGS CANNOT BE USED
FOR THAT PURPOSE.  PP. 236-237. 

(B) SECTION 10(B)(3) CANNOT BE CONSTRUED TO IMPAIR THE CLEAR MANDATE
OF SEC. 6(G) GOVERNING THE EXEMPTION FOR THEOLOGICAL STUDENTS.  P.
238. 

390 F.2D 100, REVERSED AND REMANDED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS ENROLLED AS A STUDENT AT A THEOLOGICAL SCHOOL PREPARING
FOR THE MINISTRY AND WAS ACCORDINGLY CLASSIFIED AS IV-D BY THE
SELECTIVE SERVICE BOARD.  SECTION 6(G) OF THE SELECTIVE SERVICE ACT, 62
STAT. 611, AS AMENDED, NOW SEC. 6(G) OF THE MILITARY SELECTIVE SERVICE
ACT OF 1967 (SEE 81 STAT. 100, SEC. 1(A), 50 U.S.C. APP. 456(G), GIVES
SUCH STUDENTS EXEMPTION FROM TRAINING AND  SERVICE UNDER THE ACT.  /1/
HE RETURNED HIS REGISTRATION CERTIFICATE TO THE GOVERNMENT, ACCORDING
TO THE COMPLAINT IN THE PRESENT ACTION, "FOR THE SOLE PURPOSE OF
EXPRESSING DISSENT FROM THE PARTICIPATION BY THE UNITED STATES IN THE
WAR IN VIETNAM."  SHORTLY THEREAFTER HIS BOARD DECLARED  HIM DELINQUENT
(1) FOR FAILURE TO HAVE THE REGISTRATION CERTIFICATE IN HIS POSSESSION,
/2/ AND (2) FOR FAILURE TO PROVIDE THE BOARD WITH NOTICE OF HIS LOCAL
STATUS.  THE BOARD THEREUPON CHANGED HIS IV-D CLASSIFICATION TO I-A. HE
TOOK AN ADMINISTRATIVE APPEAL AND LOST AND WAS ORDERED TO REPORT FOR
INDUCTION. 

AT THAT POINT HE BROUGHT SUIT TO RESTRAIN HIS INDUCTION.  THE
DISTRICT COURT DISMISSED THE COMPLAINT, 280 F.SUPP.  78, AND THE COURT
OF APPEALS AFFIRMED.  390 F.2D 100.  THE CASE IS HERE ON A PETITION FOR
A WRIT OF CERTIORARI WHICH WE GRANTED.  391 U.S. 912. 

AS NOTED, SEC. 6(G) OF THE ACT STATES THAT "STUDENTS PREPARING FOR
THE MINISTRY" IN QUALIFIED SCHOOLS "SHALL BE EXEMPT FROM TRAINING AND
SERVICE" UNDER THE ACT.  /3/  EQUALLY UNAMBIGUOUS IS SEC. 10(B)(3) OF
THE MILITARY SELECTIVE SERVICE ACT OF 1967, 81 STAT. 104, WHICH
PROVIDES THAT THERE SHALL BE NO PRE-INDUCTION JUDICIAL REVIEW "OF THE
CLASSIFICATION OR PROCESSING OF ANY REGISTRANT,"  /4/  JUDICIAL REVIEW
BEING LIMITED TO A DEFENSE IN A CRIMINAL PROSECUTION OR, AS THE
GOVERNMENT CONCEDES, TO HABEAS CORPUS AFTER INDUCTION.  /5/  SEE ESTEP
V. UNITED STATES, 327 U.S. 114, 123-125; EAGLES V. SAMUELS, 329 U.S.
304; WITMER V. UNITED STATES, 348 U.S. 375, 377.  IF WE ASSUME, AS WE
MUST FOR PRESENT PURPOSES, THAT PETITIONER IS ENTITLED TO A STATUTORY
EXEMPTION AS A DIVINITY STUDENT, BY WHAT AUTHORITY CAN THE BOARD
WITHHOLD IT OR WITHDRAW IT AND MAKE HIM A DELINQUENT? 

IN 1967 CONGRESS ADDED A PROVISION CONCERNING THE IMMEDIATE SERVICE
OF MEMBERS OF A "PRIME AGE GROUP" AFTER EXPIRATION OF THEIR DEFERMENT,
STATING THAT THEY WERE THE FIRST TO BE INDUCED "AFTER DELINQUENTS AND
VOLUNTEERS."  50 U.S.C. APP. 456(H)(1) (1964 ED., SUPP. III).  CONGRESS
HAS ALSO MADE CRIMINAL THE KNOWING FAILURE OR NEGLECT TO PERFORM ANY
DUTY PRESCRIBED BY THE RULES OR REGULATIONS OF THE SELECTIVE SERVICE
SYSTEM.  50 U.S.C. APP. 462(A) (1964 ED., SUPP. III).  BUT CONGRESS DID
NOT DEFINE DELINQUENCY; NOR DID IT PROVIDE ANY STANDARDS FOR ITS
DEFINITION BY THE SELECTIVE SERVICE SYSTEM.  YET SELECTIVE SERVICE, AS
WE HAVE NOTED, /6/ HAS PROMULGATED REGULATIONS GOVERNING DELINQUENCY
AND USES THEM TO DEPRIVE REGISTRANTS OF THEIR STATUTORY EXEMPTION,
BECAUSE OF VARIOUS ACTIVITIES AND CONDUCT AND WITHOUT ANY REGARD TO THE
EXEMPTIONS PROVIDED BY LAW. 

WE CAN FIND NO AUTHORIZATION FOR THAT USE OF DELINQUENCY.  EVEN IF
CONGRESS HAD AUTHORIZED THE BOARDS TO REVOKE STATUTORY EXEMPTIONS BY
MEANS OF DELINQUENCY CLASSIFICATIONS, SERIOUS QUESTIONS WOULD ARISE IF
CONGRESS WERE SILENT AND DID NOT PRESCRIBE STANDARDS TO GOVERN THE
BORADS' ACTIONS.  THERE IS NO SUGGESTION IN THE LEGISLATIVE HISTORY
THAT, WHEN CONGRESS HAS GRANTED AN EXEMPTION AND A REGISTRANT MEETS ITS
TERMS AND CONDITIONS, A BOARD CAN NONETHELESS WITHHOLD IT FROM HIM FOR
ACTIVITIES OR CONDUCT NOT MATERIAL TO THE GRANT OR WITHDRAWAL OF THE
EXEMPTION.  SO TO HOLD WOULD MAKE THE BOARDS FREEWHEELING AGENCIES
METING OUT THEIR BRAND OF JUSTICE IN A VINDICTIVE MANNER. 

ONCE A PERSON REGISTERS AND QUALIFIES FOR A STATUTORY EXEMPTION, WE
FIND NO LEGISLATIVE AUTHORITY TO DEPRIVE HIM OF THAT EXEMPTION BECAUSE
OF CONDUCT OR ACTIVITIES UNRELATED TO THE MERITS OF GRANTING OR
CONTINUING THAT EXEMPTION.  THE SOLICITOR GENERAL CONFESSES ERROR ON
THE USE BY THE SELECTIVE SERVICE OF DELINQUENCY PROCEEDINGS FOR THAT
PURPOSE. 

WE DEAL WITH CONDUCT OF A LOCAL BOARD THAT IS BASICALLY LAWLESS.  IT
IS NO DIFFERENT IN CONSTITUTIONAL IMPLICATIONS FROM A CASE WHERE
INDUCTION OF AN ORDAINED MINISTER OR OTHER CLEARLY EXEMPT PERSON IS
ORDERED (A) TO RETALIATE AGAINST THE PERSON BECAUSE OF HIS POLITICAL
VIEWS OR (B) TO BEAR DOWN ON HIM FOR HIS RELIGIOUS VIEWS OR HIS RACIAL
ATTITUDES OR (C) TO GET HIM OUT OF TOWN SO THAT THE AMOROUS INTERESTS
OF A BOARD MEMBER MIGHT BE BETTER SERVED.  SEE TOWNSEND V. ZIMMERMAN,
237 F.2D 376.  IN SUCH INSTANCES, AS IN THE PRESENT ONE, THERE IS NO
EXERCISE OF DISCRETION BY A BOARD IN EVALUATING EVIDENCE AND IN
DETERMINING WHETHER A CLAIMED EXEMPTION IS DESERVED.  THE CASE WE
DECIDE TODAY INVOLVES A CLEAR DEPARTURE BY THE BOARD FROM ITS STATUTORY
MANDATE.  TO HOLD THAT A PERSON DEPRIVED OF HIS STATUTORY EXEMPTION IN
SUCH A BLATANTLY LAWLESS MANNER MUST EITHER BE INDUCTED AND RAISE HIS
PROTEST THROUGH HABEAS CORPUS OR DEFY INDUCTION AND DEFEND HIS REFUSAL
IN A CRIMINAL PROSECUTION IS TO CONSTRUE THE ACT WITH UNNECESSARY
HARSHNESS.  AS THE SOLICITOR GENERAL SUGGESTS, SUCH LITERALNESS DOES
VIOLENCE TO THE CLEAR MANDATE OF SEC. 6(G) GOVERNING THE EXEMPTION. 
OUR CONSTRUCTION LEAVES SEC. 10(B)(3) UNIMPAIRED IN THE NORMAL
OPERATIONS OF THE ACT. 

NO ONE, WE BELIEVE, SUGGESTS THAT SEC. 10(B)(3) CAN SUSTAIN A
LITERAL READING.  FOR WHILE IT PURPORTS ON ITS FACE TO SUSPEND THE WRIT
OF HABEAS CORPUS AS A VEHICLE FOR REVIEWING A CRIMINAL CONVICTION UNDER
THE ACT, EVEYONE AGREES THAT SUCH WAS NOT ITS INTENT.  EXAMPLES ARE
LEGION WHERE LITERALNESS IN STATUTORY LANGUAGE IS OUT OF HARMONY EITHER
WITH CONSTITUTIONAL REQUIREMENTS, UNITED STATES V. RUMELY, 345 U.S. 41,
OR WITH AN ACT TAKEN AS AN ORGANIC WHOLE.  CLARK V. UEBERSEE FINANZ
KORP., 332 U.S. 480, 488-489.  WE THINK SEC. 10(B)(3) AND SEC. 6(G) ARE
ANOTHER ILLUSTRATION; AND THE SOLICITOR GENERAL AGREES.  SINCE THE
EXEMPTION GRANTED DIVINITY STUDENTS IS PLAIN AND UNEQUIVOCAL AND IN NO
WAY CONTESTED HERE, /7/  AND SINCE THE SCOPE OF THE STATUTORY
DELINQUENCY CONCEPT IS NOT BROAD ENOUGHT TO SUSTAIN A REVOCATION OF
WHAT CONGRESS HAS GRANTED AS A STATUTORY RIGHT, OR SUFFICIENTLY
BUTTRESSED BY LEGISLATIVE STANDARDS, WE CONCLUDE THAT PRE-INDUCTION
JUDICIAL REVIEW IS NOT PRECLUDED IN CASES OF THIS TYPE. 

WE ACCORDINGLY REVERSE THE JUDGMENT AND REMAND THE CASE TO THE
DISTRICT COURT WHERE PETITIONER MUST HAVE THE OPPORTUNITY TO PROVE THE
FACTS ALLEGED AND ALSO TO DEMONSTRATE THAT HE MEETS THE JURISDICTIONAL
REQUIREMENTS OF 28 U.S.C. 1331. 

              REVERSED. 

/1/  SECTION 6(G) READS AS FOLLOWS: 

"REGULAR OR DULY ORDAINED MINISTERS OF RELIGION, AS DEFINED IN THIS
TITLE, AND STUDENTS PREPARING FOR THE MINISTRY UNDER THE DIRECTION OF
RECOGNIZED CHURCHES OR RELIGIOUS ORGANIZATIONS, WHO ARE SATISFACTORILY
PURSUING FULL-TIME COURSES OF INSTRUCTION IN RECOGNIZED THEOLOGICAL OR
DIVINITY SCHOOLS, OR WHO ARE SATISFACTORILY PURSUING FULL-TIME COURSE
OF INSTRUCTION LEADING TO THEIR ENTRANCE INTO RECOGNIZED THEOLOGICAL OR
DIVINITY SCHOOLS IN WHICH THEY HAVE BEEN PRE-ENROLLED, SHALL BE EXEMPT
FROM TRAINING AND SERVICE (BUT NOT FROM REGISTRATION) UNDER THIS
TITLE." 

/2/  SECTION 1617.1 OF THE SELECTIVE SERVICE SYSTEM REGULATIONS
REQUIRES A REGISTRANT TO HAVE THE CERTIFICATE IN HIS PERSONAL
POSSESSION AT ALL TIMES (32 CFR 1617.1), AND SEC. 1642.4, 32 CFR
1642.4(A), PROVIDES THAT WHENEVER A REGISTRANT FAILS TO PERFORM "ANY
DUTY" REQUIRED OF HIM (APART FROM THE DUTY TO OBEY AN ORDER TO REPORT
FOR INDUCTION) THE BOARD MAY DECLARE HIM TO BE "A "DELINQUENT." 

/3/  THE UNITED STATES ADMITS FOR PURPOSES OF THE PRESENT PROCEEDING
BY ITS MOTION TO DISMISS THAT PETITIONER SATISFIES THE REQUIREMENTS OF
THE EXEMPTION PROVIDED BY SEC. 6(G). 

/4/  SECTION 10(B)(3) READS IN PERTINENT PART AS FOLLOWS: 

"NO JUDICIAL REVIEW SHALL BE MADE OF THE CLASSIFICATION OR
PROCESSING OF ANY REGISTRANT BY LOCAL BOARDS, APPEAL BOARDS, OR THE
PRESIDENT, EXCEPT AS A DEFENSE TO A CRIMINAL PROSECUTION INSTITUTED
UNDER SECTION 12 OF THIS TITLE, AFTER THE REGISTRANT HAS RESPONDEED
EITHER AFFIRMATIVELY OR NEGATIVELY TO AN ORDER TO REPORT FOR INDUCTION,
OR FOR CIVILIAN WORK IN THE CASE OF A REGISTRANT DETERMINED TO BE
OPPOSED TO PARTICIPATION IN WAR IN ANY FORM:  PROVIDED, THAT SUCH
REVIEW SHALL GO TO THE QUESTION OF THE JURISDICTION HEREIN RESERVED TO
LOCAL BOARDS, APPEAL BOARDS, AND THE PRESIDENT ONLY,WHEN THERE IS NO
BASIS IN FACT FOR THE CLASSIFICATION ASSIGNED TO SUCH REGISTRANT." 

/5/  SEE S. REP. NO. 209, 90TH CONG., 1ST SESS., 10, WHERE IT IS
STATED: 

"A REGISTRANT WHO PRESENTS HIMSELF FOR INDUCTION MAY CHALLENGE HIS
CLASSIFICATION BY SEEKING A WRIT OF HABEAS CORPUS AFTER HIS INDUCTION. 
IF THE REGISTRANT DOES NOT SUBMIT TO INDUCTION, HE MAY RAISE AS A
DEFENSE TO A CRIMINAL PROSECUTION THE ISSUE OF THE LEGALITY OF THE
CLASSIFICATION." 

IN FALBO V. UNITED STATES, 320 U.S. 549, A JEHOVAH'S WITNESS HAD
BEEN GIVEN CONSCIENTIOUS OBJECTOR STATUS AND ORDERED TO REPORT TO A
DOMESTIC CAMP FOR CIVILIAN WORK IN LIEU OF MILITARY SERVICE.  IN
DEFENSE TO A CRIMINAL PROSECUTION FOR DISOBEYING THAT ORDER, HE ARGUED
THAT HIS LOCAL BOARD HAD WRONGLY CLASSIFIED HIM BY DENYING HIM AN
EXEMPTION AS A MINISTER.  WITHOUT DECIDING WHETHER CONGRESS ENVISAGED
JUDICIAL REVIEW OF SUCH CLASSIFICATIONS, WE HELD THAT A REGISTRANT
COULD NOT CHALLENGE HIS CLASSIFICATIONS, WE HELD THAT A REGISTRANT
COULD NOT CHALLENGE HIS CLASSIFICATION WITHOUT FIRST EXHUASTING HIS
ADMINISTRATIVE REMEDIES BY REPORTING, AND BEING ACCEPTED, FOR
INDUCTION.  BECAUSE HE MIGHT STILL HAVE BEEN REJECTED AT THE CIVILIAN
CAMP FOR MENTAL OR PHYSICAL DISABILITIES, FALBO HAD OMITTED A
"NECESSARY INTERMEDIATE STEP IN A UNITED AND CONTINUOUS PROCESS
DESIGNED TO RAISE AN ARMY SPEEDILY AND EFFICIENTLY."  ID., AT 553.  IN
ESTEP V. UNITED STATES, 327 U.S. 114, PETITIONERS WERE JEHOVAH'S
WITNESSES LIKE FALBO WHO HAD BEEN DENIED MINISTERIAL EXEMPTIONS AND WHO
CHALLENGED THAT CLASSIFICATION IN DEFENSE TO A CRIMINAL PROSECUTION FOR
REFUSING INDUCTION.  IN THEIR CASE, HOWEVER, THEY HAD EXHAUSTED THEIR
ADMINISTRATIVE REMEDIES BY REPORTING, AND BEING ACCEPTED, FOR SERVICE,
BEFORE THEN REFUSING TO SUBMIT TO INDUCTION.  WE FOUND NOTHING IN THE
1940 ACT TO PRECLUDE JUDICIAL REVIEW OF SELECTIVE SERVICE
CLASSIFICATIONS IN DEFENSE TO A CRIMINAL PROSECUTION FOR REFUSING
INDUCTION. 

/6/  SUPRA, AT N. 2. 

/7/  WE WOULD HAVE A SOMEWHAT DIFFERENT PROBLEM WERE THE CONTEST
OVER, SAY, THE QUANTUM OF EVIDENCE NECESSARY TO SUSTAIN A BOARD'S
CLASSIFICATION.  THEN WE WOULD NOT BE ABLE TO SAY THAT IT WAS PLAIN ON
THE RECORD AND ON THE FACE OF THE ACT THAT AN EXEMPTION HAD BEEN
GRANTED AND THERE WOULD THEREFORE BE NO CLASH BETWEEN SEC. 10(B)(3) AND
ANOTHER EXPLICIT PROVISION OF THE ACT. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I CONCUR IN THE HOLDING THAT PRE-INDUCTION REVIEW IS AVAILABLE IN
THIS CASE, BUT I REACH THIS CONCLUSION BY MEANS OF A SOMEWHAT DIFFERENT
ANALYSIS FROM THAT CONTAINED IN THE OPINION OF MY BROTHER DOUGLAS. 

AT THE OUTSET, I THINK IT IS IMPORTANT TO STATE WHAT THIS CASE DOES
AND DOES NOT INVOLVE.  PETITIONER DOES NOT CONTEND THAT THE SELECTIVE
SERVICE SYSTEM HAS IMPROPERLY RESOLVED FACTUAL QUESTIONS, OR WRONGFULLY
EXERCISED ITS DISCRETION, OR EVEN THAT IT HAS ACTED WITHOUT ANY "BASIS
IN FACT," AS THAT PHRASE IS COMMONLY USED IN THIS AREA OF LAW.  SEE
ESTEP V. UNITED STATES, 327 U.S. 114, 122-123 (1946); ANTE, AT 238, N.
7.  HE ASSERTS, RATHER, THAT THE PROCEDURE PURSUANT TO WHICH HE WAS
RECLASSIFIED AND ORDERED TO REPORT FOR INDUCTION-- A PROCEDURE PLAINLY
MANDATED BY THE SYSTEM'S SELF-PROMULGATED PUBLISHED REGULATIONS, 32
CFR, PT. 1642-- IS UNLAWFUL.  SPECIFICALLY, HE ASSERTS THAT THE
DELINQUENCY RECLASSIFICATION SCHEME IS NOT AUTHORIZED BY ANY STATUTE,
THAT IT IS INCONSISTENT WITH HIS STATUTORY EXEMPTION AS A MINISTERIAL
STUDENT, 5O U.S.C. APP. 456(G), AND THAT,  WHETHER OR NOT APPROVED BY
CONGRESS, THE REGULATIONS ARE FACIALLY UNCONSTITUTIONAL.  /1/ 

THE PIVOTAL LANGUAGE OF SEC. 10(B)(3), FOR PRESENT PURPOSES, IS THE
STATUTE'S PROSCRIPTION OF PRE-INDUCTION JUDICIAL REVIEW "OF THE
CLASSIFICATION OR PROCESSING OF ANY REGISTRANT.  . . . "  I TAKE THE
PHRASE "CLASSIFICATION OR PROCESSING" TO ENCOMPASS THE NUMEROUS
DISCRETIONARY, FACTUAL, AND MIXED LAW-FACT DETERMINATIONS WHICH A
SELECTIVE SERVICE BOARD MUST MAKE PRIOR TO ISSUING AN ORDER TO REPORT
FOR INDUCTION.  I DO NOT UNDERSTAND THAT PHRASE TO PROHIBIT REVIEW OF A
CLAIM, SUCH AS THAT MADE HERE BY PETITIONER, THAT THE VERY STATUTES OR
REGULATIONS WHICH THE BOARD ADMINISTERS ARE FACIALLY INVALID. 

"CLASSIFICATION IS THE KEY TO SELECTION," 32 CFR 1622.1(B), AND
AMONG A LOCAL BOARD'S MOST IMPORTANT FUNCTIONS IS "TO DECIDE, SUBJECT
TO APPEAL, THE CLASS IN WHICH EACH REGISTRANT SHALL BE PLACED."  32 CFR
1622.1(C).  CLASSIFICATION IS A HIGHLY INDIVIDUALIZED PROCESS, IN WHICH
A BOARD MUST CONSIDER ALL PERTINENT INFORMATION PRESENTED TO IT.  IBID.
THUS, A BOARD MAY BE REQUIRED TO DETERMINE, ON A CONFLICTING RECORD,
WHETHER A REGISTRANT IS CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR
IN ANY FORM, 32 CFR 1622.14, OR WHETHER THE REGISTRANT'S DEFERMENT "IS
IN THE NATIONAL INTEREST AND OF PARAMOUNT IMPORTANCE TO OUR NATIONAL
SECURITY.  . . . "  32 CFR 1622.20.  A BOARD ALSO EXERCISES
CONSIDERABLE DISCRETION IN THE PROCESSING OF REGISTRANTS-- FOR EXAMPLE,
IN SECURING INFORMATION RELEVANT TO CLASSIFICATION, 32 CFR 1621.9
1621.15, SCHEDULING OF PHYSICAL EXAMINATIONS, 32 CFR, PT. 1628, AND
SCHEDULING AND POSTPONEMENT OF INDUCTION ITSELF, 32 CFR, PT. 1632. 
CONGRESS' DECISION TO DEFER JUDICIAL REVIEW OF SUCH DECISIONS BY THE
SELECTIVE SERVICE BOARDS UNTIL AFTER INDUCTION WAS, I BELIEVE,
RESPONSIVE TO TWO MAJOR CONSIDERATIONS.  FIRST, BECAUSE THESE
DETERMINATIONS ARE OF AN INDIVIDUALIZED AND DISCRETIONARY NATURE, A
REVIEWING COURT MUST OFTEN EXAMINE BOARD RECORDS AND OTHER DOCUMENTARY
EVIDENCE, HEAR TESTIMONY, AND RESOLVE CONTROVERSIES ON A SIZEABLE
RECORD.  EVEN THOUGH THE SCOPE OF JUDICIAL REVIEW IS NARROW, SEE ESTEP
V. UNITED STATES, SUPRA, AT 122-123, THIS CANNOT BE DONE QUICKLY.  TO
STAY INDUCTION PENDING SUCH REVIEW WOULD WORK HAVOC WITH THE ORDERLY
PROCESSING OF REGISTRANTS INTO THE NATION'S ARMED FORCES.  SEE 113
CONG.REC.  15426 (SENATOR RUSSELL); CF. ESTEP V. UNITED STATES, SUPRA,
AT 137 (MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT). 

SECOND, THE REGISTRANT HAS BEEN AFFORDED, PRIOR TO HIS INDUCTION,
THE OPPORTUNITY FOR A HEARING AND ADMINISTRATIVE APPEALS WITHIN THE
SELECTIVE SERVICE SYSTEM.  32 CFR, PTS.  1624-1627.  IT IS PROPERLY
PRESUMED THAT A REGISTRANT'S BOARD HAS FULLY CONSIDERED ALL RELEVANT
INFORMATION PRESENTED TO IT, AND THAT IT HAS CLASSIFIED AND PROCESSED
HIM REGULARLY, AND IN ACCORDANCE WITH THE APPLICABLE STATUTES AND
REGULATIONS.  GREER V. UNITED STATES, 378 F.2D 931 (1967); STOREY V.
UNITED STATES, 370 F.2D 255 (1966); CF. UNITED STATES V. CHEMICAL
FOUNDATION, 272 U.S. 1, 14-15 (1926); CHIN YOW V. UNITED STATES, 208
U.S. 8, 12 (1908); MARTIN V. MOTT, 12 WHEAT.  19 (1827). 

THESE FACTORS ARE SIGNIFICANTLY ALTERED WHERE THE REGISTRANT
CONTENDS THAT THE PROCEDURE EMPLOYED BY THE BOARD IS INVALID ON ITS
FACE. 

FIRST, SUCH A CLAIM DOES NOT INVITE THE COURT TO REVIEW THE FACTUAL
AND DISCRETIONARY DECISIONS INHERENT IN THE "CLASSIFICATION OR
PROCESSING" OR REGISTRANTS, AND DOES NOT, THEREFORE, PRESENT
OPPORTUNITY FOR PROTRACTED DELAY.  TO BE SURE, COLLATERAL FACTUAL
DETERMINATIONS-- FOR EXAMPLE, WHETHER THE REGISTRANT WAS SUBJECTED TO
THE STATUTE OR REGULATION DRAWN IN QUESTION (IN THIS CASE, THE
DELINQUENCY RECLASSIFICATION PROCEDURE)-- MAY SOMETIMES BE NECESSARY. 
BUT, IN GENERAL, A COURT MAY DISPOSE OF A CHALLENGE TO THE VALIDITY OF
THE PROCEDURE ON THE PLEADINGS.  INSUBSTANTIAL CLAIMS CAN USUALLY BE
WEEDED OUT WITH DISPATCH.  /2/ 

SECOND, A CHALLENGE TO THE VALIDITY OF THE ADMINISTRATIVE PROCEDURE
ITSELF NOT ONLY RENDERS IRRELEVANT THE PRESUMPTION OF REGULARLITY, /3/
BUT ALSO PRESENTS AN ISSUE BEYOND THE COMPETENCE OF THE SELECTIVE
SERVICE BOARDS TO HEAR AND DETERMINE.  ADJUDICATION OF THE
CONSTITUTIONALITY OF CONGRESSIONAL ENACTMENTS /4/  HAS GENERALLY BEEN
THOUGHT BEYOND THE JURISDICTION OF ADMINISTRATIVE AGENCIES.  SEE PUBLIC
UTILITIES COMM'N V. UNITED STATES, 355 U.S. 534, 539 (1958); ENGINEERS
PUBLIC SERVICE CO. V. SEC, 78 U.S.APP.D.C. 199, 215-216, 138 F.2D 936,
952-953 (1943), DISMISSED AS MOOT, 332 U.S. 788.  THE BOARDS HAVE NO
POWER TO PROMULGATE REGULATIONS, AND ARE NOT EXPRESSLY DELEGATED ANY
AUTHORITY TO PASS ON THE VALIDITY OF REGULATIONS OR STATUTES.  SUCH
AUTHORITY CANNOT READILY BE INFERRED, FOR THE COMPOSITION OF THE
BOARDS, AND THEIR ADMINISTRATIVE PROCEDURES, RENDER THEM WHOLLY
UNSUITABLE FORUMS FOR THE ADJUDICATION OF THESE MATTERS:  LOCAL AND
APPEAL BOARDS CONSIST OF PART-TIME, UNCOMPENSATED MEMBERS, CHOSEN
IDEALLY TO BE REPRESENTATIVE OF THE REGISTRANTS' COMMUNITIES; /5/  THE
FACT THAT A REGISTRANT MAY NOT BE REPRESENTED BY COUNSEL IN SELECTIVE
SERVICE PROCEEDINGS, 32 CFR 1624.1(B), SEEMS INCOMPATIBLE WITH THE
BOARDS' SERIOUS CONSIDERATION OF SUCH PURELY LEGAL CLAIMS.  INDEED, THE
DENIAL OF COUNSEL HAS BEEN JUSTIFIED ON THE GROUND THAT THE PROCEEDINGS
ARE NONJUDICIAL.  UNITED STATES V. STURGIS, 342 F.2D 328, 332 (1965),
CERT. DENIED, 382 U.S. 879; CF. UNITED STATES V. CAPEHART, 141 F.SUPP. 
708, 719 (1956), AFF'D, 237 F.2D 388 (1956), CERT. DENIED, 352 U.S.
971. 

TO WITHHOLD PRE-INDUCTION REVIEW IN THIS CASE WOULD THUS DEPRIVE
PETITIONER OF HIS LIBERTY WITHOUT THE PRIOR OPPORTUNITY TO PRESENT TO
ANY COMPETENT FORUM-- AGENCY OR COURT-- HIS SUBSTANTIAL CLAIM THAT HE
WAS ORDERED INDUCTED PURSUANT TO AN UNLAWFUL PROCEDURE.  SUCH AN
INTERPRETATION OF SEC. 10(B)(3) WOULD RAISE SERIOUS CONSTITUTIONAL
PROBLEMS, /6/  AND IS NOT INDICATED BY THE STATUTE'S HISTORY, /7/
LANGUAGE, OR PURPOSE.  ON THE FOREGOING BASIS I AGREE THAT SEC.
10(B)(3) DOES NOT FORBID PRE-INDUCTION REVIEW IN THIS INSTANCE. 

BECAUSE BOTH THE DISTRICT COURT AND THE COURT OF APPEALS PASSED ON
THE MERITS OF PETITIONER'LS CHALLENGE TO THE DELINQUENCY
RECLASSIFICATION REGULATIONS, THIS ISSUE IS RIPE FOR OUR
CONSDIERATION.  WHATEVER VALIDITY THE PROCEDURE MAY HAVE UNDER OTHER
CIRCUMSTANCES, I AGREE THAT THE DELINQUENCY RECLASSIFICATION OF
PETITIONER FOR FAILURE TO POSSESS HIS REGISTRATION CERTIFICATE IS
INCONSISTENT WITH PETITIONER'S CONCEDED STATUTORY EXEMPTION AS A
STUDENT OF THE MINISTRY. 

/1/  PETITIONER MAKES SEVERAL OTHER ARGUMENTS WHICH I DO NOT FIND
NECESSARY TO DISCUSS. 

/2/  MOREOVER, A COURT SHOULD BE HESITANT TO GRANT A PRELIMINARY
INJUNCTION STAYING INDUCTION EXCEPT UPON A STRONG SHOWING THAT THE
REGISTRANT IS LIKELY TO SUCCEED ON THE MERITS. 

/3/  A SUGGESTIVE ANALOGY MAY BE FOUND IN THE COURT'S CONSTRUCTION
OF THE CIVIL RIGHTS REMOVAL STATUTE, 28 U.S.C. 1443.  WHERE STATE
STATUTORY PROCEDURE IS VALID ON ITS FACE, IT IS PRESUMED THAT THE STATE
COURTS WILL TREAT A DEFENDANT FAIRLY, AND REMOVAL IS NOT PERMITTED. 
GEORGIA V. RACHEL, 384 U.S. 780, 803-804 (1966); VIRGINIA V. RIVES, 100
U.S. 313, 321-323 (1880).  BUT, SUBJECT TO QUALIFICATIONS NOT HERE
PERTINENT, A DEFENDANT MAY REMOVE THE CAUSE WHEN THE STATE STATUTORY
PROCEDURE IS FACIALLY INVALID:  "WHEN A STATUTE OF THE STATE DENIES HIS
RIGHT, OR INTERPOSES A BAR TO HIS ENFORCING IT, IN THE JUDICIAL
TRIBUNALS, THE PRESUMPTION IS FAIR THAT THEY WILL BE CONTROLLED BY IT
IN THEIR DECISIONS.  . . . "  ID., AT 321.  SEE ALSO GREENWOOD V.
PEACOCK, 384 U.S. 808 (1966). 

/4/  IT MAY BE NOTED THAT THE SELECTIVE SERVICE SYSTEM URGES THAT
THE DELINQUENCY RECLASSIFICATION PROVISIONS HAVE BEEN APPROVED BY
CONGRESS.  BRIEF FOR THE RESPONDENTS 71. 

/5/  SEE 32 CFR 1603.3, 1604.22; MEMORANDUM FROM GENERAL HERSHEY, S.
DOC. NO. 82, 89TH CONG., 2D SESS., 4; WEEKLY COMPILATION OF
PRESIDENTIAL DOCUMENTS, MARCH 13, 1967, P. 395; REPORT OF THE NATIONAL
ADVISORY COMMISSION ON SELECTIVE SERVICE 74-79 (1967). 

ALTHOUGH EACH LOCAL BOARD HAS ASSIGNED TO IT A PART-TIME,
UNCOMPENSATED APPEAL AGENT-- "WHENEVER POSSIBLE, A PERSON WITH LEGAL
TRAINING AND EXPERIENCE," 32 CFR 1604.71(C)-- HIS PERTINENT
RESPONSIBILITIES TO THE BOARD ARE LIMITED TO ASSISTING ITS MEMBERS BY
"INTERPRETING FOR THEM LAWS, REGULATIONS, AND OTHER DIRECTIVES," 32 CFR
1604.71(D)(4), AND HE MUST BE "EQUALLY DILIGENT IN PROTECTING THE
INTERESTS OF THE GOVERNMENT AND THE RIGHTS OF THE REGISTRANT IN ALL
MATTERS."  32 CFR 1604.71(D)(5). 

/6/  IT IS DOUBTFUL WHETHER A PERSON MAY BE DEPRIVED OF HIS PERSONAL
LIBERTY WITHOUT THE PRIOR OPPORTUNITY TO BE HEARD BY SOME TRIBUNAL
COMPETENT FULLY TO ADJUDICATE HIS CLAIMS.  CF. KWONG HAI CHEW V.
COLDING, 344 U.S. 590, 596-598 (1953); OPP COTTON MILLS, INC. V.
ADMINISTRATOR, 312 U.S. 126, 152-153 (1941); UNITED STATES V. ILLINOIS
CENTRAL R. CO., 291 U.S. 457, 463 (1934); LONDONER V. CITY AND COUNTY
OF DENVER, 210 U.S. 373, 385 (1908); DIXON V. ALABAMA STATE BOARD OF
EDUCATION, 294 F.2D 150 (1961).  BUT CF. EWING V. MYTINGER &
CASSELBERRY, INC., 339 U.S. 594 (1950); BOWLES V. WILLINGHAM, 321 U.S.
503, 520 (1944); NORTH AMERICAN COLD STORAGE CO. V. CHICAGO, 211 U.S.
306 (1908).  THE VALIDITY OF SUMMARY ADMINISTRATIVE DEPRIVATION OF
LIBERTY WITHOUT A FULL HEARING MAY TURN ON THE AVAILABILITY OF A PROMPT
SUBSEQUENT HEARING, CF. U.S. CONST., AMDT. VI; UNITED STATES V. EWELL,
383 U.S. 116, 120 (1966); FREEDMAN V. MARYLAND, 380 U.S. 51 (1965)--
SOMETHING NOT MADE MEANINGFULLY AVAILABLE TO PETITIONER HERE, EITHER BY
THE OPTION OF DEFENDING A CRIMINAL PROSECUTION FOR REFUSING TO REPORT
FOR INDUCTION, SEE EX PARTE YOUNG, 209 U.S. 123 (1908); OKLAHOMA
OPERATING CO. V. LOVE, 252 U.S. 331 (1920); CF. REISMAN V. CAPLIN, 375
U.S. 440 (1964), OR BY FILING A PETITION FOR A WRIT OF HABEAS CORPUS
AFTER INDUCTION.  SEE ANTE, AT 235-236; ESTEP V. UNITED STATES, SUPRA,
AT 129-130 (CONCURRING OPINION OF MR. JUSTICE MURPHY). 

THE PROBLEM IS EXACERBATED BY PETITIONER'S NONFRIVOLOUS ARGUMENT
THAT INDUCTION PURSUANT TO THE DELINQUENCY RECLASSIFICATION PROCEDURE
CONSTITUTES "PUNISHMENT" FOR VIOLATION OF COLLATERAL REGULATIONS,
WITHOUT JURY TRIAL, RIGHT TO COUNSEL, AND OTHER CONSTITUTIONAL
REQUISITES.  SEE KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, 168-169
(1963).  IT IS NOT NECESSARY TO DECIDE THIS ISSUE.  IF PETITIONER'S
CLAIM IS VALID, HOWEVER, THEN POSTPONEMENT OF A HEARING UNTIL AFTER
INDUCTION IS TANTAMOUNT TO PERMITTING THE IMPOSITION OF SUMMARY
PUNISHMENT, FOLLOWED BY LOSS OF LIBERTY, WITHOUT POSSIBILITY OF BAIL,
UNTIL SUCH TIME AS THE PETITIONER IS ABLE TO SECURE HIS RELEASE BY A
WRIT OF HABEAS CORPUS.  THIS WOULD, AT THE VERY LEAST, CUT AGAINST THE
GRAIN OF MUCH THAT IS FUNDAMENTAL TO OUR CONSTITUTIONAL TRADITION.  CF.
HART, THE POWER OF CONGRESS TO LIMIT THE JURISDICTION OF FEDERAL
COURTS:  AN EXERCISE IN DIALECTIC, 66 HARV.L.REV.  1362, 1380-1383
(1953). 

/7/  THE SALIENT PARTS OF THE STATUTE'S SPARSE LEGISLATIVE HISTORY
ARE SET OUT IN MY BROTHER STEWART'S DISSENTING OPINION, POST, AT 247
248.  BOTH THE HOUSE AND SENATE COMMITTEES WERE "DISTURBED BY THE
APPARENT INCLINATION OF SOME COURTS TO REVIEW THE CLASSIFICATION ACTION
OF LOCAL OR APPEAL BOARDS BEFORE THE REGISTRANT HAD EXHAUSTED HIS
ADMINISTRATIVE REMEDIES."  H.R. REP. NO. 267, 90TH CONG., 1ST SESS., 30
(1967); S. REP. NO. 209, 90TH CONG., 1ST SESS., 10 (1967).  AS I HAVE
DISCUSSED IN THE PRECEDING TEXT, THE BOARDS CAN PROVIDE NO REMEDY FOR A
REGISTRANT'S CLAIM THAT THE REGULATIONS OR STATUTES ARE THEMSELVES
INVALID.  (THIS IS NOT TO SAY THAT A REGISTRANT MAKING SUCH A CLAIM MAY
COME INTO COURT BEFORE HE HAS EXHAUSTED HIS ADMINISTRATIVE APPEALS, FOR
THE SYSTEM MAY DECIDE IN HIS FAVOR ON OTHER GROUNDS, OBVIATING THE NEED
FOR FURTHER REVIEW.  CF. MY DISSENT IN PUBLIC UTILITIES COMM'N V.
UNITED STATES, SUPRA, AT 549-550; AIRCRAFT & DIESEL EQUIPMENT CORP. V.
HIRSCH, 331 U.S. 752, 772 (1947).  PETITIONER HERE HAS EXHAUSTED
AVAILABLE REMEDIES.  APPENDIX 4.) 

WELL-PUBLICIZED DECISION IN WOLFF V. SELECTIVE SERVICE BD., 372 F.2D
817 (1967).  SEE DISSENTING OPINION OF MR. JUSTICE STEWART, POST, AT
247; BRIEF FOR RESPONDENT 18, N. 4, 69, N. 32.  WOLFF, AS WELL AS THE
OTHER "RECENT CASES" TO WHICH THE COMMITTEE REPORTS PROBABLY REFERRED,
AND THIS COURT'S DECISIONS CONSTRUING THE ANTECEDENT TO SEC. 10(B)(3),
ALL INVOLVED CLAIMS THAT THE SELECTIVE SERVICE BOARDS HAD
MALADMININSTERED OR MISAPPLIED THE APPLICABLE STATUTES OR REGULATIONS,
AND NOT CHALLENGES TO THE VALIDITY OF THE LAWS THEMSELVES.  WOLFF V.
SELECTIVE SERVICE BD., SUPRA (LOSS OF DEFERMENT FOR PARTICIPATING IN
DEMONSTRATION); TOWNSEND V. ZIMMERMAN, 237 F.2D 376 (1956) (FAILURE TO
FOLLOW PROPER APPEAL PROCEDURE); SCHWARTZ V. STRAUSS, 206 F.2D 767
(1953) (CONCURRING OPINION) (MISCLASSIFICATION); EX PARTE FABIANI, 105
F.SUPP.  139 (1952) (REFUSAL TO RECOGNIZE FOREIGN MEDICAL SCHOOL FOR
DEFERMENT); TOMLINSON V. HERSHEY, 95 F.SUPP.  72 (1949) (REFUSAL TO
HEAR REQUEST FOR DEFERMENT); ESTEP V. UNITED STATES, SUPRA (ENTITLEMENT
TO MINISTERIAL EXEMPTION); FALBO V. UNITED STATES, 320 U.S. 549 (1944)
(ENTITLEMENT TO CONSCIENTIOUS OBJECTOR STATUS). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

IT IS CLEAR THAT IN ENACTING SEC. 10(B)(3) OF THE MILITARY SELECTIVE
SERVICE ACT OF 1967, /1/  CONGRESS INTENDED TO SPECIFY THE EXCLUSIVE
METHODS BY WHICH THE DETERMINATIONS OF SELECTIVE SERVICE BOARDS MAY BE
JUDICIALLY REVIEWED.  SINCE UNDER THE TERMS OF THAT PROVISION THE
PRESENT SUIT IS PLAINLY PREMATURE, I WOULD AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS. 


"NO JUDICIAL REVIEW SHALL BE MADE OF THE CLASSIFICATION OR
PROCESSING OF ANY REGISTRANT BY LOCAL BOARDS, APPEAL BOARDS, OR THE
PRESIDENT, EXCEPT AS A DEFENSE TO A CRIMINAL PROSECUTION INSTITUTED
UNDER SECTION 12 OF THIS TITLE, AFTER THE REGISTRANT HAS RESPONDED
EITHER AFFIRMATIVELY OR NEGATIVELY TO AN ORDER TO REPORT FOR
INDUCTION.  . . . " IT IS UNQUESTIONED THAT THE OVERRIDING PURPOSE OF
THIS PROVISIONS WAS "TO PREVENT LITIGIOUS INTERRUPTIONS OF PROCEDURES
TO PROVIDE NECESSARY MILITARY MANPOWER."  /2/  TO BE SURE, THE
PROVISION IS SOMEWHAT INARTISTICALLY DRAWN, BUT ITS BACKGROUND AND
LEGISLATIVE HISTORY CLEARLY RESOLVE WHATEVER DIFFICULTIES MIGHT
OTHERWISE BE PRESENTED BY THE IMPRECISION OF THE DRAFTSMAN'S LANGUAGE. 

IN INTERPRETING THE LESS EXPLICIT TERMS OF PREDECESSOR STATUTES, /3/
THIS COURT HAD ESTABLISHED THE GENERAL RULE THAT DRAFT CLASSIFICATIONS
COULD NOT BE JUDICIALLY REVIEWED PRIOR TO THE TIME A REGISTRANT WAS TO
BE INDUCTED.  REVIEW WAS HELD TO BE PROPER ONLY WHEN CHALLENGES TO SUCH
DETERMINATIONS WERE RAISED EITHER (1) IN DEFENSE TO A CRIMINAL
PROSECUTION FOLLOWING A REFUSAL TO BE INDUCTED, OR (2) IN HABEAS CORPUS
PROCEEDINGS INITIATED AFTER INDUCTION.  SEE WITMER V. UNITED STATES,
348 U.S. 375, 377; ESTEP V. UNITED STATES, 327 U.S. 114; BILLINGS V.
TRUESDELL, 321 U.S. 542; FALBO V. UNITED STATES, 320 U.S. 549. 
OCCASIONALLY, HOWEVER, OTHER FEDERAL COURTS HAD ALLOWED EXCEPTIONS TO
THIS RULE.  /4/  SECTION 10(B)(3) WAS PROPOSED AND ENACTED SHORTLY
AFTER THE COURT OF APPEALS FOR THE SECOND CIRCUIT HAD, IN THE WELL
PUBLICIZED CASE OF WOLFF V. SELECTIVE SERVICE BD., 372 F.2D 817,
PERMITTED JUST SUCH AN EXCEPTION.  /5/  IN ADOPTING THE SECTION
CONGRESS SPECIFICALLY DISAPPORVED THOSE DECISIONS THAT HAD DEVIATED
FROM THE RULE AGAINST PRE-INDUCTION REVIEW, AND MADE EXPLICIT ITS
ABSOLUTE COMMITMENT AGAINST PREMATURE JUDICIAL INTERFERENCE WITH THE
ORDERLY PROCESSING OF REGISTRANTS.  THE SENATE ARMED SERVICES COMMITTEE
PUT THE MATTER THIS WAY: 

     "UNTIL RECENTLY, THERE WAS NO PROBLEM IN THE OBSERVANCE OF THE

  FINALITY PROVISION.  IN SEVERAL RECENT CASES, HOWEVER, DISTRICT

  COURTS HAVE BEEN BROUGHT INTO SELECTIVE SERVICE PROCESSING

  PREMATURELY.  THE COMMITTEE ATTACHES MUCH IMPORTANCE TO THE

  FINALITY PROVISIONS AND REEMPHASIZES THE ORIGINAL INTENT THAT

  JUDICIAL REVIEW OF CLASSIFICATIONS SHOULD NOT OCCUR UNTIL AFTER

  THE REGISTRANT'S ADMINISTRATIVE REMEDIES HAVE BEEN EXHAUSTED AND

  THE REGISTRANT PRESENTS HIMSELF FOR INDUCTION."  /6/

A SIMILAR STATEMENT OF INTENT WAS INCLUDED IN THE REPORT OF THE HOUSE
ARMED SERVICES COMMITTEE: 

     "THE COMMITTEE WAS DISTURBED BY THE APPARENT INCLINATION OF

  SOME COURTS TO REVIEW THE CLASSIFICATION ACTION OF LOCAL OR

  APPEAL BOARDS BEFORE THE REGISTRANT HAD EXHAUSTED HIS

  ADMINISTRATIVE REMEDIES. 

EXISTING LAW QUITE CLEARLY PRECLUDES SUCH A JUDICIAL REVIEW UNTIL AFTER
A REGISTRANT

  HAS BEEN ORDERED TO REPORT FOR INDUCTION AND HAS RESPONDED EITHER
AFFIRMATIVELY OR NEGATIVELY

  TO SUCH AN ORDER.  IN VIEW OF THIS INCLINATION OF THE COURTS TO
PREMATURELY INQUIRE INTO THE

  CLASSIFICATION ACTION OF LOCAL BOARDS, THE COMMITTEE HAS
REWRITTEN THIS PROVISION OF THE LAW

  SO AS TO MORE CLEARLY ENUNCIATE THIS PRINCIPLE.  THE COMMITTEE
WAS PROMPTED TO TAKE THIS

  ACTION SINCE CONTINUED DISREGARD OF THIS PRINCIPLE OF THE LAW BY
VARIOUS COURTS COULD

  SERIOUSLY AFFECT THE ADMINISTRATION OF THE SELECTIVE SERVICE
SYSTEM."  /7/ 

ALTHOUGH THE LANGUAGE OF SEC. 10(B)(3) CONTAINS NO EXPLICIT
REFERENCE TO HABEAS CORPUS AS A REMEDY FOR INDUCTEES SEEKING TO
CHALLENGE THEIR CLASSIFICATIONS, THAT REMEDY WAS PLAINLY RECOGNIZED AND
APPROVED BY CONGRE-S.  THE SECTION PROVIDES FOR REVIEW "AFTER THE
REGISTRANT HAS RESPONDED EITHER AFFIRMATIVELY OR NEGATIVELY TO AN ORDER
TO REPORT FOR INDUCTION.  . . . "  THE REMEDY FOR ONE WHO RESPONDS
AFFIRMATIVELY CANNOT, OF COURSE, BE BY WAY OF "DEFENSE TO A CRIMINAL
PROSECUTION" FOR REFUSING TO BE INDUCTED; THE ONLY REMEDY IN SUCH A
CASE IS HABEAS CORPUS, AND THE SENATE COMMITTEE REPORT MADE QUITE CLEAR
CONGRESS' UNDERSTANDING IN THIS REGARD: 

"A REGISTRANT WHO PRESENTS HIMSELF FOR INDUCTION MAY CHALLENGE HIS
CLASSIFICATION BY SEEKING A WRIT OF HABEAS CORPUS AFTER HIS INDUCTION. 
IF THE REGISTRANT DOES NOT SUBMIT TO INDUCTION, HE MAY RAISE AS A
DEFENSE TO A CRIMINAL PROSECUTION THE ISSUE OF THE LEGALITY OF THE
CLASSIFICATION."  /8/ 

THUS THERE CAN BE NO DOUBT THAT SEC. 10(B)(3) WAS DESIGNED TO PERMIT
JUDICIAL REVIEW OF DRAFT CLASSIFICATIONS ONLY IN CONNECTIVE WITH
CRIMINAL PROSECUTIONS OR HABEAS CORPUS PROCEEDINGS.  TODAY, HOWEVER,
THE COURT HOLDS THAT SEC. 10(B)(3) DOES NOT MEAN WHAT IT SAYS IN A CASE
LIKE THIS, WHERE IT IS "PLAIN ON THE RECORD AND ON THE FACE OF THE ACT
THAT AN EXEMPTION HAS) BEEN GRANTED."  /9/  IN SUCH A CASE, IT IS SAID,
THERE IS A "CLASH" BETWEEN THE EXEMPTION AND THE PROVISIONS OF SEC.
10(B)(3).  WITH ALL RESPECT, I AM SIMPLY UNABLE TO PERCEIVE ANY "CLASH"
WHATSOEVER.  EXEMPTIONS FROM SERVICE ARE SUBSTANTIVE, WHILE SEC.
10(B)(3) IS PURELY PROCEDURAL, SPECIFYING WHEN SUBSTANTIVE RIGHTS MAY
BE ASSERTED.  HOW THE COURT CAN CONCLUDE THAT THE PROVISIONS OF SEC.
10(B)(3) SOMEHOW DO "VIOLENCE TO" THE DIVINITY STUDENT EXEMPTION IS A
MYSTERY TO ME.  /10/ 

THE ONLY OTHER REASON THE COURT OFFERS FOR ITS CASUAL DISREGARD OF
SEC. 10(B)(3) IS THE SUGGESTION THAT OBEDIENCE TO THE STATUTE WOULD
LEAD TO "UNNECESSARY HARSHNESS."  BUT IF THE STATUTE IS CONSTITUTIONAL,
WE HAVE NO POWER TO DISREGARD IT SIMPLY BECAUSE WE THINK IT IS HARSH. 
THAT IS A JUDGMENT FOR CONGRESS, NOT FOR US.  AND THE COURT DOES NOT
QUESTION THE LAW'S CONSTITUTIONALITY.  /1/  TO THE CONTRARY, THE
CONSTITUTIONALITY OF SEC. 10(B)(3) IS UPHELD THIS VERY DAY IN CLARK V.
GABRIEL, POST, P. 256, IN REAFFIRMATION OF SEVERAL PREVIOUS DECISIONS
IN WHICH THIS COURT HAS ENUNCIATED AND APPLIED THE RULE AGAINST
PREINDUCTION REVIEW OF SELECTIVE SERVICE DETERMINATIONS.  /12/ 

THE COURT STATES THAT ITS "CONSTRUCTION LEAVES SEC. 10(B)(3)
UNIMPAIRED IN THE NORMAL OPERATIONS OF THE ACT."  THE IMPLICATION SEEMS
TO BE THAT THE PRESENT CASE IS SOMEHOW EXCEPTIONAL.  BUT THE COURT HAS
CARVED OUT AN "EXCEPTION" TO SEC. 10(B)(3) IN EXACTLY THE KIND OF CASE
WHERE, IN TERMS OF THE INTERESTS AT STAKE, AN EXCEPTION SEEMS LEAST
JUSTIFIED.  THE REGISTRANT WITH A CLEAR STATUTORY EXEMPTION IS
PRECISELY THE ONE LEAST JEOPARDIZED BY THE PROCEDURAL LIMITATIONS OF
SEC. 10(B)(3).  FOR, AS THE GOVERNMENT HAS ACKNOWLEDGED, "THE
DEPARTMENT OF JUSTICE WOULD NOT PROSECUTE (SUCH A REGISTRANT) IF HE
REFUSES TO BE INDUCTED, AND WOULD PROMPTLY CONFESS ERROR IF HE SUBMITS
TO INDUCTION AND BRINGS A HABEAS CORPUS ACTION."  /13/ 

IT IS UPON THOSE REGISTRANTS, RATHER, WHOSE RIGHTS ARE NOT SO CLEAR
THAT THE BURDEN OF SEC. 10(B)(3) MOST HARSHLY FALLS.  FOR IT IS THEY
WHO MUST CHOOSE WHETHER TO RUN THE SERIOUS RISK OF A CRIMINAL
PROSECUTION OR SUBMIT TO INDUCTION WITH THE UNCERTAIN HOPE OF
PREVAILING IN A HABEAS CORPUS PROCEEDING.  YET THE COURT HAS MADE PLAIN
TODAY IN CLARK V. GABRIEL, SUPRA, THAT A REGISTRANT WHOSE EXEMPTION
FROM SERVICE IS NOT CLEAR WILL UNDER SEC. 10(B)(3) BE PUT TO JUST SUCH
A FATEFUL CHOICE.  IN LIGHT OF GABRIEL, THE ALLOWANCE OF PRE-INDUCTION
REVIEW IN THE PRESENT CASE THUS STANDS AS ALL THE MORE IRRATIONAL AND
UNJUSTIFIED. 

I RESPECTFULLY DISSENT. 

/1/  50 U.S.C. APP. 460(B)(3) (1964 ED., SUPP. III).  THE ACT AMENDS
AND SUPERSEDES THE UNIVERSAL  MILITARY TRAINING AND SERVICE ACT. 

/2/  113 CONG.REC.  15426 (1967) (SENATOR RUSSELL). 

/3/  SEE SEC. 10(A)(2) OF THE SELECTIVE TRAINING AND SERVICE ACT OF
1940, 54 STAT. 893: 

"(DECISIONS OF . . . LOCAL BOARDS SHALL BE FINAL EXCEPT WHERE AN
(ADMINISTRATIVE) APPEAL IS AUTHORIZED.  . . . " 

SEE ALSO ESTEP V. UNITED STATES, 327 U.S. 114, 119, 123-125. 

/4/  SEE TOWNSEND V. ZIMMERMAN, 237 F.2D 376; SCHWARTZ V. STRAUSS,
206 F.2D 767 (CONCURRING OPINION); EX PARTE FABIANI, 105 F.SUPP.  139;
TOMLINSON V. HERSHEY, 95 F.SUPP.  72. 

/5/  IN WOLFF THE COURT ALLOWED PRE-INDUCTION REVIEW OF THE
RECLASSIFICATION OF TWO STUDENTS WHO HAD DEMONSTRATED AGAINST THE
HOSTILITIES IN VIETNAM. 

/6/  S. REP. NO. 209, 90TH CONG., 1ST SESS., 10 (1967). 

/7/  H.R. RE. NO. 267, 90TH CONG., 1ST SESS., 30-31 (1967). 

/8/  S. REP. NO. 209, SUPRA, AT 10. 

/9/  THE COURT SEEMS TO LIMIT ITS HOLDING TO STATUTORY "EXEMPTIONS";
YET "DEFERMENTS" MAY JUST AS "PLAINLY" PRECLUDE A REGISTRANT'S
INDUCTION.  SEE, E.G., 50 U.S.C. APP. 456(H)(1) (1964 ED., SUPP. III);
32 CFR 1622.25 (1968) (FULL-TIME COLLEGE STUDENTS). 

/10/  A DIFFERENT GROUND FOR PERMITTING REVIEW IN THE PRESENT CASE
IS SET OUT IN THE SEPARATE OPINION OF MY BROTHER HARLAN.  HIS OPINION
IS FOUNDED ON THE PROPOSITION THAT CONSTITUTIONAL PROBLEMS WOULD BE
PRESENTED BY A SYSTEM THAT "DEPRIVED) PETITIONER OF HIS LIBERTY WITHOUT
THE PRIOR OPPORTUNITY TO PRESENT TO ANY COMPETENT FORUM-- AGENCY OR
COURT-- HIS SUBSTANTIAL CLAIM THAT HE WAS ORDERED INDUCTED PURSUANT TO
AN UNLAWFUL PROCEDURE."  MR. JUSTICE HARLAN SEEKS TO AVOID SUCH
DIFFICULTIES BY VIEWING SEC. 10(B)(3) AS INTENDED TO PROHIBIT, NOT ALL
DELAYS IN THE PROCESSING OF REGISTRANTS, BUT MERELY THOSE PROTRACTED
DELAYS THAT RESULT FROM JUDICIAL CONSIDERATION OF FACTUAL CLAIMS. 

AS THE ABSENCE OF ANY EXCEPTION IN ITS TERMS INDICATES, HOWEVER,
SEC. 10(B)(3) PLAINLY WAS INTENDED TO PREVENT ANY INTERRUPTION WHATEVER
OF THE ORDERLY PROCESSING OF REGISTRANTS.  THERE IS NOT A GLIMMER OF
EVIDENCE IN THE SECTION'S LEGISLATIVE HISTORY THAT CONGRESS INTENDED TO
PREVENT SOME SORTS OF DELAY BUT NOT OTHERS.  MOREOVER, IT IS DIFFICULT
TO RECONCILE THE DISTINCTION MR. JUSTICE [ARLAN SEEKS TO DRAW-- BETWEEN
CLAIMS "THAT THE PROCEDURE EMPLOYED BY THE BOARD IS INVALID ON ITS
FACE" AND CHALLENGES TO A BOARD'S FACTUAL DETERMINATIONS-- WITH HIS
RECOGNITION THAT THE ENACTMENT OF SEC. 10(B)(3) WAS TO SUBSTANTIAL PART
A CONGRESSIONAL REACTION TO THE SECOND CIRCUIT'S DECISION IN WOLFF V.
SELECTIVE SERVICE BD., 372 F.2D 817.  WOLFF INVOLVED NO FACTUAL DISPUTE
WHATSOEVER; RATHER, THAT DECISION HELD THAT, ON THE BASIS OF ADMITTED
FACTS, THE "DELINQUENCY" RECLASSIFICATION OF THE REGISTRANTS THERE
INVOLVED HAD BEEN ENTIRELY UNAUTHORIZED UNDER BOTH THE STATUTE AND THE
APPLICABLE REGULATIONS. 

NOR CAN I VIEW THE CONSTITUTIONAL THEORY SUGGESTED BY MY BROTHER
HARLAN AS PRESENTING A JUSTIFIABLE GROUND FOR DECISION.  IT IS
NOTEWORTHY, FIRST OF ALL, THAT NO SUCH THEORY HAS EVEN BEEN ADVANCED BY
THE PETITIONER.  FURTHERMORE, PERSONS ARRESTED FOR CRIMINAL OFFENSES
ARE ROUTINELY DEPRIVED OF THEIR LIBERTY-- TO A GREATER EXTENT THAN ARE
MILITARY INDUCTEES-- WITHOUT ANY PRIOR OPPORTUNITY FOR THE ADJUDICATION
OF LEGAL OR CONSTITUTIONAL CLAIMS, AND OFTEN WITHOUT ANY HOPE OF
SECURING RELEASE ON BAIL.  PRELIMINARY HEARINGS BEFORE MAGISTRATES, BY
AND LARGE, DETERMINE ONLY THE EXISTENCE OF A PRIMA FACIE CASE FOR THE
PROSECUTION, AND DO NOT BEGIN TO REACH DEFENSES THAT MIGHT BE RAISED,
WHETHER FACTUAL, LEGAL, OR CONSTITUTIONAL.  NOR DOES SEC. 10(B)(3)
NECESSARILY COMPEL DEPRIVATION OF LIBERTY.  A REGISTRANT IN THE
PETITIONER'S POSITION IF FREE TO REFUSE INDUCTION, KEEPING OPEN THE
OPTION OF RAISING HIS CLAIMS SHOULD A CRIMINAL PROSECUTION BE BROUGHT
AGAINST HIM.  AND IT IS ENTIRELY POSSIBLE, OF COURSE-- AND MORE THAN
LIKELY IN THE PETITTIONER'S CASE-- THAT NO SUCH PROSECUTION WILL EVER
BE INSTITUTED. 

/11/  THE PETITIONER SUGGESTS THAT WHERE THE ACTION OF A DRAFT BOARD
IS CHALLENGED AS A VIOLATION OF FREEDOM OF SPEECH, THE POSTPONEMENT OF
JUDICIAL REVIEW UNTIL AFTER THE SCHEDULED TIME OF INDUCTION MIGHT HAVE
A "CHILLING EFFECT" UPON FIRST AMENDMENT ACTIVITY.  BUT PETITIONER'S
COMPLAIN PRESENTS NO BONA FIDE FIRST AMENDMENT ISSUE.  HIS ALLEGED
RETURN OF HIS REGISTRATION CERTIFICATE TO THE GOVERNMENT WOULD NOT BE
PROTECTED EXPRESSION.  UNITED STATES V. O'BRIEN, 391 U.S. 367. 

/12/  IN FALBO V. UNITED STATES, 320 U.S. 549, 550, FOR INSTANCE, A
REGISTRANT WHO HAD NOT REPORTED FOR INDUCTION SOUGHT REVIEW OF HIS
CLASSIFICATION, CLAIMING-- AS THE PETITIONER CLAIMS HERE-- "THAT HE WAS
ENTITLED TO A STATUTORY EXEMPTION FROM ALL FORMS OF NATIONAL SERVICE. 
. . . "  IN REFUSING TO PERMIT JUDICIAL REVIEW, THE COURT, THROUGH MR.
JUSTICE BLACK, STATED: 

"EVEN IF THERE WERE, AS THE PETITIONER ARGUES, A CONSTITUTIONAL
REQUIREMENT THAT JUDICIAL REVIEW MUST BE AVAILABLE TO TEST THE VALIDITY
OF THE DECISION OF THE LOCAL BOARD, IT IS CERTAIN THAT CONGRESS WAS NOT
REQUIRED TO PROVIDE FOR JUDICIAL INTERVENTION BEFORE FINAL ACCEPTANCE
OF AN INDIVIDUAL FOR NATIONAL SERVICE."  ID., AT 554. 

SEE ALSO WITMER V. UNITED STATES, 348 U.S. 375, 377; ESTEP V. UNITED
STATES, 327 U.S. 114; BILLINGS V. TRUESDELL, 321 U.S. 542. 

/13/  BRIEF FOR RESPONDENTS 70, N. 33. 

MELVIN L. WULF ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE ALAN H. LEVINE, JOHN GRIFFITHS, MARVIN M. KARPATKIN, LEANOR
HOLMES NORTON, AND WILLIAM F. REYNARD. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR RESPONDENTS.  WITH
HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WEISL, FRANCIS X.
BEYTAGH, JR., MORTON HOLLANDER, AND ROBERT V. ZENER. 
..END :










JOHNSON V. BENNETT, 393 U.S. 253 


       JOHNSON V. BENNETT, WARDEN. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT. 

        NO. 32.  ARGUED NOVEMBER 13-14, 1968.-- DECIDED DECEMBER
16,

           1968. 


AT PETITIONER'S TRIAL FOR MURDER IN 1934, SEVERAL WITNESSES TESTIFIED
THAT PETITIONER WAS IN ANOTHER CITY WHEN THE CRIME WAS COMMITTED.  IN
ACCORDANCE WITH IOWA LAW, THE TRIAL JUDGE INSTRUCTED THE JURY THAT THE
DEFENDANT HAD THE BURDEN OF PROOF ON AN ALIBI DEFENSE.  PETITIONER WAS
CONVICTED, AND HIS CONVICTION WAS UPHELD BY THE IOWA SUPREME COURT. 
CONTENDING THAT IT VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO PLACE ON HIM THE BURDEN OR PROVING AN ALIBI DEFENSE,
PETITIONER SOUGHT A WRIT OF HABEAS CORPUS.  THE DISTRICT COURT DENIED
THE WRIT, AND THE COURT OF APPEALS AFFIRMED.  AFTER THIS COURT GRANTED
CERTIORARI, THE COURT OF APPEALS, SITTING EN BANC IN ANOTHER CASE, HELD
THAT TO PLACE ON THE DEFENDANT THE BURDEN OF PROVING AN ALIBI DEFENSE
VIOLATED DUE PROCESS.  HELD:  THIS CASE IS VACATED AND REMANDED FOR
RECONSIDERATION IN THE LIGHT OF THAT HOLDING. 

386 F.2D 677, VACATED AND REMANDED. 

PER CURIAM. 

IN 1934, PETITIONER WAS INDICTED FOR MURDERING A POLICEMAN IN
BURLINGTON, IOWA.  PETITIONER CLAIMED THAT HE WAS INNOCENT AND THAT HE
HAD NOT BEEN PRESENT AT THE SCENE OF THE CRIME.  AT THE TRIAL, SEVERAL
WITNESSES TESTIFIED THAT PETITIONER HAD BEEN IN DES MOINES, 165 MILES
AWAY FROM BURLINGTON, ON THE DAY THAT THE CRIME WAS COMMITTED.  THE
TRIAL JUDGE INSTRUCTED THE JURY THAT FOR THE PETITIONER TO BE ENTITLED
TO AN ACQUITTAL ON THE GROUND THAT HE WAS NOT PRESENT AT THE SCENE OF
THE CRIME, THE PETITIONER MUST HAVE SHOWN BY A PREPONDERANCE OF THE
EVIDENCE THAT HE WAS NOT PRESENT.  /1/  THE JURY FOUND PETITIONER
GUILTY OF SECOND-DEGREE MURDER, AND PETITIONER WAS SENTENCED TO LIFE
IMPRISONMENT.  HIS CONVICTION WAS AFFIRMED BY THE IOWA SUPREME COURT. 
STATE V. JOHNSON, 221 IOWA 8, 264 N.W. 596 (1936).  /2/ 

IN THIS HABEAS CORPUS PROCEEDING, PETITIONER ARGUED, AMONG OTHER
POINTS, THAT THE STATE HAD DENIED HIM DUE PROCESS OF LAW BY PLACING ON
HIM THE BURDEN OF PROVING THE ALIBI DEFENSE.  THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA REJECTED THIS ARGUMENT
AND DENIED THE PETITION.  TH UNITED STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT AFFIRMED.  386 F.2D 677 (1967).  WE GRANTED CERTIORARI
TO CONSIDER THE CONSTITUTIONALITY OF THE ALIBI INSTRUCTION, ALONG WITH
OTHER ISSUES.  390 1.S. 1002 (1968).  /3/  AFTER WE GRANTED CERTIORARI,
THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT, SITTING EN BANC, HELD IN
ANOTHER CASE THAT THE IOWA RULE SHIFTING TO THE DEFENDANT THE BURDEN OF
PROVING AN ALIBI DEFENSE VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  STUMP V. BENNETT, 398 F.2D 111 (1968).  /4/  IN
VIEW OF THAT HOLDING, WE VACATE THE DECISION IN THIS CASE AND REMAND TO
THAT COURT FOR RECONSIDERATION.  /5/ 

/1/  THE INSTRUCTION WAS AS FOLLOWS: 

"THE BURDEN IS UPON THE DEFENDANT TO PROVE (HE) DEFENSE (OF ALIBI)
BY A PREPONDERANCE OF THE EVIDENCE, THAT IS, BY THE GREATER WEIGHT OR
SUPERIOR EVIDENCE.  THE DEFENSE OF ALIBI TO BE ENTITLED TO BE
CONSIDERED AS ESTABLISHED MUST SHOW THAT AT THE VERY TIME OF THE
COMMISSION OF THE CRIME THE ACCUSED WAS AT ANOTHER PLACE SO FAR AWAY,
OR UNDER SUCH CIRCUMSTANCES THAT HE COULD NOT WITH ORDINARY EXERTION
HAVE REACHED THE PLACE WHERE THE CRIME WAS COMMITTED SO AS TO HAVE
COMMITTED THE SAME.  IF BY A PREPONDERANCE OF THE EVIDENCE THE
DEFENDANT HAS SO SHOWN, THE DEFENSE MUST BE CONSIDERED ESTABLISHED AND
THE DEFENDANT WOULD BE ENTITLED TO AN ACQUITTAL.  BUT IF THE PROOF OF
ALIBI HAS FAILED SO TO SHOW, YOU WILL NOT CONSIDER IT ESTABLISHED OR
PROVED.  THE EVIDENCE UPON THAT POINT IS TO BE CONSIDERED BY THE JURY,
AND IF UPON THE WHOLE CASE INCLUDING THE EVIDENCE OF AN ALIBI, THERE IS
A REASONABLE DOUBT OF DEFENDANT'S GUILT, YOU SHOULD ACQUIT HIM." 

/2/  SEE ALSO STATE V. JOHNSON, 221 IOWA 8, 21, 267 N.W. 91 (1936),
IN WHICH THE IOWA SUPREME COURT CORRECTED CERTAIN ERRORS MADE IN ITS
ORIDINAL OPINION. 

/3/  THE OTHER ISSUES WERE WHETHER THE STATE HAD SUPPRESSED EVIDENCE
FAVORABLE TO PETITIONER AND INTENTIONALLY USED FALSE EVIDENCE AT
PETITIONER'S TRIAL, IN VIOLATION OF THE FOURTEENTH AMENDMENT. 

/4/  THE INSTRUCTION IN STUMP WAS SIMILAR TO THE ONE IN THE PRESENT
CASE.  THE COURT OF APPEALS REJECTED THE STATE'S CONTENTION THAT ANY
ERROR WAS HARMLESS BECAUSE THE JURY WAS ALSO INSTRUCTED THAT THE STATE
HAD THE BURDEN OF PROVING "THE CRIME AS A WHOLE" BEYOND A REASONABLE
DOUBT.  THE COURT POINTED OUT THAT, IN VIEW OF THE INSTRUCTION'S
INCONSISTENCY, REASONABLE MINDS COULD INFER THAT THE DEFENDANT RETAINED
THE BURDEN OF PROVING NONPRESENCE.  398 F.2D,AT 116, 121-122. 

/5/  "(WE ARE NOT DIRECTLY FACED WITH ISSUES OF RETROACTIVITY.  WE
RECOGNIZE THAT A PANEL OF THIS COURT IN JOHNSON V. BENNETT, ALSO A
HABEAS CORPUS PROCEEDING BY AN IOWA STATE PRISONER, REFUSED RELIEF AS
TO A NUMBER OF MATTERS, INCLUDING THE ALIBI INSTRUCTION.  THE JOHNSON
CASE CONCEDEDLY HAS SOME FACTUAL DISTINCTIONS FROM THE PRESENT ONE. 
ALSO SIGNIFICANT IS THE FACT THAT IN THE STUMP CASE, UNLIKE JOHNSON,
COUNSEL HAS CAREFULLY PRESERVED BY OBJECTIONS THROUGHOUT THE TRIAL AND
APPELLATE PROCEDURES HIS ARGUMENT AS TO THE UNCONSTITUTIONALITY OF THE
INSTRUCTION."  (CITATIONS OMITTED.)  398 F.2D,AT 122-123. 

WE EXPRESS NO OPINION AS TO THE VALIDITY OF THE DISTINCTIONS
SUGGESTED BY THE COURT OF APPEALS.  INSTEAD, WE DEEM IT APPROPRIATE TO
REMAND TO THAT COURT FOR A DEFINITE RULING ON THE ISSUE. 

MR. JUSTICE BLACK DISSENTS. 

RONALD L. CARLSON ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

WILLIAM A. CLAERHOUT, ASSISTANT ATTORNEY GENERAL OF IOWA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS RICHARD C. TURNER,
ATTORNEY GENERAL. 
..END :




CLARK V. GABRIEL, 393 U.S. 256 


       CLARK, ATTORNEY GENERAL ET AL. V. GABRIEL. 

   APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

         NORTHERN DISTRICT OF CALIFORNIA. 

        NO. 572.  DECIDED DECEMBER 16, 1968. 


APPELLEE'S DRAFT BOARD REJECTED HIS CLAIM TO CLASSIFICATION AS A
CONSCIENTIOUS OBJECTOR AND CLASSIFIED HIM I-A.  HIS ADMINISTRATIVE
APPEALS WERE UNSUCCESSFUL AND, AFTER HE WAS ORDERED TO REPORT FOR
INDUCTION, HE FILED SUIT IN THE DISTRICT COURT TO ENJOIN HIS INDUCTION
AND TO HAVE THE REJECTION OF HIS CONSCIENTIOUS OBJECTOR CLAIM DECLARED
IMPROPER.  THE DISTRICT COURT ENTERED A PRELIMINARY INJUNCTION
PREVENTING INDUCTION UNTIL A DETERMINATION OF THE CLAIM ON THE MERITS. 
THAT COURT HELD THAT SEC. 10(B)(3) OF THE MILITARY SELECTIVE SERVICE
ACT OF 1967, WHICH PROVIDES THAT THERE SHALL BE NO PRE-INDUCTION
JUDICIAL REVIEW "OF THE CLASSIFICATION OR PROCESSING OF ANY
REGISTRANT," IF APPLIED TO BAR PRE-INDUCTION REVIEW OF APPELLEE'S
CLASSIFICATION, WAS UNCONSTITUTIONAL.  HELD:  THE DRAFT BOARD HAD
EXERCISED ITS STATUTORY DISCRETION, EVALUATING THE EVIDENCE IN
APPELLEE'S INDIVIDUAL CASE, AND HAD REJECTED HIS CLAIM.  CONGRESS MAY
CONSTITUTIONALLY REQUIRE THAT A REGISTRANT'S CHALLENGES TO SUCH
DECISIONS BE DEFERRED UNTIL AFTER INDUCTION, WHEN THE REMEDY OF HABEAS
CORPUS WOULD BE AVAILABLE, OR UNTIL DEFENSE OF A CRIMINAL PROSECUTION,
SHOULD HE REFUSE TO SUBMIT TO INDUCTION.  SEE OESTEREICH V. SELECTIVE
SERCICE BD., ANTE, P. 233. 

287 F.SUPP.  369, REVERSED AND REMANDED. 

PER CURIAM. 

APPELLEE'S DRAFT BOARD REJECTED HIS CLAIM TO CLASSIFICATION AS A
CONSCIENTIOUS OBJECTOR AND CLASSIFIED HIM I-A.  HIS APPEALS WITHIN THE
SELECTIVE SERVICE SYSTEM WERE UNSUCCESSFUL.  AFTER HE WAS ORDERED TO
REPORT FOR INDUCTION HE BROUGHT AN ACTION IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SEEKING TO HAVE HIS
INDUCTION ENJOINED AND TO HAVE THE REJECTION OF HIS CLAIM TO
CONSCIENTIOUS OBJECTOR CLASSIFICATION DECLARED IMPROPER ON THE GROUNDS
THAT IT HAD NO BASIS IN FACT, THAT THE BOARD HAD MISAPPLIED THE
STATUTORY DEFINITION OF CONSCIENTIOUS OBJECTOR, AND THAT THE MEMBERS OF
THE BOARD WERE IMPROPERLY MOTIVATED BY HOSTILITY AND BIAS AGAINST THOSE
WHO CLAIM TO BE CONSCIENTIOUS OBJECTORS.  THE DISTRICT COURT ENTERED A
PRELIMINARY INJUNCTION PREVENTING APPELLEE'S INDUCTION UNTIL AFTER A
DETERMINATION OF HIS CLAIM ON THE MERITS. 

IN ENTERING THE PRELIMINARY INJUNCTION, THE DISTRICT COURT HELD THAT
IT HAD JURISDICTION TO HEAR APPELLEE'S CLAIM DESPITE SEC. 10(B)(3) OF
THE MILITARY SELECTIVE SERVICE ACT OF 1967, 50 U.S.C. APP. 460(B)(3)
(1964 ED., SUPP. III), WHICH PROVIDES: 

"NO JUDICIAL REVIEW SHALL BE MADE OF THE CLASSIFICATION OR
PROCESSING OF ANY REGISTRANT BY LOCAL BOARDS, APPEAL BOARDS, OR THE
PRESIDENT, EXCEPT AS A DEFENSE TO A CRIMINAL PROSECUTION INSTITUTED
UNDER SECTION 12 OF THIS TITLE, AFTER THE REGISTRANT HAS RESPONDED
EITHER AFFIRMATIVELY OR NEGATIVELY TO AN ORDER TO REPORT FOR INDUCTION,
OR FOR CIVILIAN WORK IN THE CASE OF A REGISTRANT DETERMINED TO BE
OPPOSED TO PARTICIPATION IN WAR IN ANY FORM:  PROVIDED, THAT SUCH
REVIEW SHALL GO TO THE QUESTION OF THE JURISDICTION HEREIN RESERVED TO
LOCAL BOARDS, APPEAL BOARDS, AND THE PRESIDENT ONLY WHEN THERE IS NO
BASIS IN FACT FOR THE CLASSIFICATION ASSIGNED TO SUCH REGISTRANT." 
ACKNOWLEDGING THAT THIS STATUTE IF APPLICABLE WOULD PREVENT PRE
INDUCTION REVIEW OF APPELLEE'S CLASSIFICATION, THE DISTRICT COURT HELD
THAT, SO APPLIED, SEC. 10(B)(3) WAS UNCONSTITUTIONAL BECAUSE TO PROVIDE
FOR JUDICIAL CONSIDERATION OF THE LAWFULNESS OF THE BOARD'S ACTION ONLY
AS A DEFENSE TO A CRIMINAL PROSECUTION WOULD REQUIRE THAT APPELLEE
PURSUE A "TORTUOUS JUDICIAL ADVENTURE" SO BESET BY "HAZARDS"  AND
"PENALTIES" AS TO RESULT "IN NO REVIEW AT ALL."  THE GOVERNMENT HAS
APPEALED UNDER 28 U.S.C. 1252 WHICH ALLOWS DIRECT APPEAL TO THIS COURT
OF "AN INTERLOCUTORY OR FINAL JUDGMENT, DECREE OR ORDER OF ANY COURT OF
THE UNITED STATES . . . HOLDING AN ACT OF CONGRESS UNCONSTITUTIONAL IN
ANY CIVIL ACTION . . . TO WHICH THE UNITED STATES . . . OR ANY OFFICER
. . . THEREOF . . . IS A PARTY." 

THIS COURT HAS TODAY, AFTER FULL CONSIDERATION, DECIDED OESTEREICH
V. SELECTIVE SERVICE BD., ANTE, P. 233.  BECAUSE THE RESULT HERE IS
DICTATED BY THE PRINCIPLES ENUNCIATED IN THAT CASE, IT IS APPROPRIATE
TO DECIDE THIS CASE SUMMARILY, REVERSING THE DISTRICT COURT. 

IN OESTEREICH THE DELINQUENCY PROCEDURE BY WHICH THE REGISTRANT WAS
RECLASSIFIED WAS WITHOUT STATUTORY BASIS AND IN CONFLICT WITH
PETITIONER'S RIGHTS EXPLICITLY ESTABLISHED BY THE STATUTE AND NOT
DEPENDENT UPON AN ACT OF JUDGMENT BY THE BOARD.  OESTEREICH, AS A
DIVINITY STUDENT, WAS BY STATUTE UNCONDITIONALLY ENTITLED TO
EXEMPTION.  HERE, BY CONTRAST, THERE IS NO DOUBT OF THE BOARD'S
STATUTORY AUTHORITY TO TAKE ACTION WHICH APPELLEE CHALLENGES, AND THAT
ACTION INESCAPABLY INVOLVES A DETERMINATION OF FACT AND AN EXERCISE OF
JUDGMENT.  BY STATUTE, CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR IS
EXPRESSLY CONDITIONED ON THE REGISTRANT'S CLAIM BEING "SUSTAINED BY THE
LOCAL BOARD."  50 U.S.C. APP. 456(J) (1964 ED., SUPP. III). 

HERE THE BOARD HAS EXERCISED ITS STATUTORY DISCRETION TO PASS ON A
PARTICULAR REQUEST FOR CLASSIFICATION CLAIMS PRESENTED TO IT.  TO ALLOW
PRE-INDUCTION JUDICIAL REVIEW OF SUCH DETERMINATIONS WOULD BE TO PERMIT
PRECISELY THE KIND OF "LITIGIOUS INTERRUPTIONS OF PROCEDURES TO PROVIDE
NECESSARY MILITARY MANPOWER" (113 CONG.REC.  15426 (REPORT BY SENATOR
RUSSELL ON CONFERENCE COMMITTEE ACTION)) WHICH CONGRESS SOUGHT TO
PREVENT WHEN IT ENACTED SEC. 10(B)(3). 

WE FIND NO CONSTITUTIONAL OBJECTION TO CONGRESS' THUS REQUIRING THAT
ASSERTION OF A CONSCIENTIOUS OBJECTOR'S CLAIMS SUCH AS THOSE ADVANCED
BY APPELLEE BE DEFERRED UNTIL AFTER INDUCTION, IF THAT IS THE COURSE HE
CHOOSES, WHEREUPON HABEAS CORPUS WOULD BE AN AVAILABLE REMEDY, OR UNTIL
DEFENSE OF THE CRIMINAL PROSECUTION WHICH WOULD FOLLOW SHOULD HE PRESS
HIS OBJECTIONS TO HIS CLASSIFICATION TO THE POINT OF REFUSING TO SUBMIT
TO INDUCTION.  ESTEP V. UNITED STATES, 327 U.S. 114 (1946); FALBO V.
UNITED STATES, 320 U.S. 549 (1944). 

THE MOTION OF APPELLEE FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED.  THE DECISION OF THE DISTRICT COURT IS REVERSED, AND THE CASE
REMANDED FOR ISSUANCE OF AN ORDER DISSOLVING THE PRELIMINARY INJUNCTION
AND DISMISSING THE ACTION. 

MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, AND MR. JUSTICE WHITE
CONCUR IN THE JUDGMENT OF THE COURT FOR THE REASONS STATED IN MR.
JUSTICE STEWART'S DISSENTING OPINION IN OESTEREICH V. SELECTIVE SERVICE
BD., ANTE, P. 245, DECIDED TODAY. 

MR. JUSTICE BLACK WOULD NOTE PROBABLE JURISDICTION AND SET THE CASE
DOWN FOR ARGUMENT. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE EVIDENCE IN THIS CASE, WHICH I HAVE SET FORTH IN AN APPENDIX,
MAKES PLAIN, AS THE COURT STATES, THAT THE QUESTION WHETHER THE
REGISTRANT SHOULD BE CLASSIFIED AS A CONSCIENTIOUS OBJECTOR TURNS ON
THE WEIGHT AND CREDIBILITY OF THE TESTIMONY.  I THEREFORE AGREE THAT
SEC. 10(B)(3) OF THE MILITARY SELECTIVE SERVICE ACT OF 1967 PRECLUDES
REVIEW OF THE ACTION OF THE BOARD AT THIS PRE-INDUCTION STAGE. 

I WOULD TAKE A DIFFERENT VIEW IF THIS WERE A CASE WHERE A REGISTRANT
WAS MOVED FROM A CO (CONSCIENTIOUS OBJECTOR) CLASSIFICATION TO I-A
BECAUSE HE MADE A SPEECH, UNPOPULAR WITH THE BOARD. 

THIS WOULD ALSO BE A DIFFERENT CASE IF THE REGISTRANT WERE A MEMBER
OF AN INSTITUTIONALIZED GROUP, /1/  SUCH AS THE QUAKERS, WHOSE
OPPOSITION TO WAR WAS WELL KNOWN AND THE REGISTRANT, THOUGH PERHAPS
UNPOPULAR WITH THE BOARD, WAS A BONA FIDE MEMBER OF THIS GROUP.  THEN,
TOO, A BOARD WOULD ACT IN A LAWLESS WAY /2/  IF IT MOVED A REGISTRANT
FROM A CO CLASSIFICATION TO I-A AND DISREGARDING ALL THE EVIDENCE
DENIED HIM A CO CLASSIFICATION. 

BUT IN MY VIEW IT TAKES THE EXTREME CASE WHERE THE BOARD CAN BE SAID
TO FLOUT THE LAW, AS IT DID IN OESTEREICH V. SELECTIVE SERVICE BD.,
ANTE, P. 233, TO WARRANT PRE-INDUCTION REVIEW OF ITS ACTIONS. 

APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING. 

CHARLES GABRIEL IS 23 YEARS OLD, SON OF A WHITE FATHER AND NEGRO
METHER.  HE GRADUATED FROM BERKELEY HIGH SCHOOL, ATTENDED SAN FRANCISCO
STATE COLLEGE FOR TWO YEARS BEFORE BEING DROPPED; FOR THE FOLLOWING
YEAR HE TRIED TO REGAIN ENTRANCE TO THAT COLLEGE BY ATTENDING ITS
"EXTENSION SCHOOL"; BUT WHEN HE WAS DENIED RE-ADMISSION, HE SPENT THE
NEXT YEAR AT A CITY COLLEGE FROM WHICH HE GRADUATED.  HE REGISTERED
WITH THE SELECTIVE SERVICE IN 1963 AT THE AGE OF 18.  TWO YEARS LATER,
AT THE AGE OF 20, HE APPLIED FOR CO STATUS.  HE WAS DENIED
RECLASSIFICATION, AND HIS THREE REQUESTS FOR A "PERSONAL APPEARANCE"
BEFORE THE BOARD OVER A NINE-MONTH PERIOD WERE DISREGARDED.  FINALLY,
HE WAS GIVEN AN OPPORTUNITY FOR A PERSONAL APPEARANCE AFTER HE
COMPLAINED TO THE STATE HEADQUARTERS.  HE WAS DENIED RECLASSIFICATION. 

(A) GABRIEL'S LETTER OF AUGUST 13, 1965. 

IN 1965, AFTER HE OBTAINED A COPY OF FORM 150 BY WHICH A REGISTRANT
FILES FOR CONSCIENTIOUS OBJECTOR STATUS, GABRIEL FILLED OUT THE FORM
AND SENT HIS LOCAL DRAFT BOARD AN ACCOMPANYING LETTER EXPLAINING HIS
CONSCIENTIOUS CONVICTIONS: 

"AS A NEGRO I FIRMLY BELIEVE THE UNITED STATES GOVERNMENT HAS
WILLFULLY LET THE NEGRO BE DEPRIVED OF HIS RIGHTS THEREFORE THE DEBT OF
FORCED SERVICE CLAIMED ARBITRARILY FROM ALL ELIGIBLE MEN FOR THE
PURPOSE OF FIGHTING FOR THE UNITED STATES RIGHTS IS IN THE NEGROES CASE
VOID.  BECAUSE HE HAS NOT BEEN GIVEN THE RIGHTS THE UNITED STATES
FIGHTS FOR ON ITS CITIZENS BEHALF. 

        .          .          . . 

"MY BELIEFS ARE SUPERIOR TO MY HUMAN RELATIONS WITH THE U.S.
GOVERNMENT AND DUTIES STOLEN FROM ME BY THE U.S. GOVERNMENT.  "I HAVE
VOICED MY OPINIONS AND BELIEFS FREELY.  IN BERKELEY H.S. IN CLASS IN
FALL 1962 DURING THE CUBAN CRISIS I MADE A SPEECH AGAINST U.S. ACTION
IN CUBA OTHERWISE I HAVEN'T BOTHERED TO RECORD ALL THE TIMES I SAID
WHAT I THOUGHT.  "(LISTING ACTIVITIES):  ACTIVE CORE MEMBER (1961-2)
MARCH ON WASH DC 1963; DEMONSTRATED AGAINST HUAC IN WASH. D.C. 1959 I
WAS IN AND HELPED ORGANIZE THE FREEDOM WEEK PLAY IN BERKELEY H.S.
1963.  DEMONSTRATED AGAINST SOUTHERN WOLWORTH STORES. 

        .          .          .          . 

"ALL THROUGH MY LIFE I HAVE BEEN IN CONTACT WITH PEOPLE WHO DID NOT
BELIEVE IN WAR OR KILLING; WHO BELIEVED THE U.S. GOVERNMENT AND SYSTEM
WAS UNJUST.  MY PARENTS THEIR FRIENDS, MY FRIENDS, NUMEROUS BOOKS BY
LIBERAL OR LEFTIST WRITERS . . . HAVE BEEN THINGS THAT MAKE ME WHAT I
AM." 

(B) GABRIEL'S OFFICIAL SUMMARY OF HIS PERSONAL APPEARANCE. 

AFTER HIS PERSONAL APPEARANCE, GABRIEL FILED A COPY OF HIS SUMMARY
OF THE HEARING, AS PROVIDED BY SELECTIVE SERVICE REGULATIONS. 

"THIS IS A SUMMARY OF MY PERSONAL APPEARANCE BEFORE YOU THURSDAY,
MAY 19, 1966.  . . . THE YOUNGEST, FORTY TO FORTY-FIVE YEARS OLD WAS
FAIRLY FRIENDLY DURING THE MEETING; THE OLDEST SEEMED NEUTRAL; THE
OTHER THREE SEEMED FAIRLY UNFRIENDLY.  . . . THE OLDEST MAN REFERRED TO
MY LETTERS AS 'VERY POINTED, BELLIGERENT.'  I SAID, JOKINGLY, THAT I
WROTE THE LETTERS WITH THE HELP OF BEN SEAVER AND ALEX SLISZKA AND THEY
SHOULD SHARE THE BLAME.  THEN THERE WAS AN UNFRIENDLY COMMENT ABOUT
SLISZKA AND SEAVER.  THE YOUNGEST MAN READ MY STATEMENT THAT SIAD I WAS
A NEGRO AND DIDN'T THINK I HAD MY RIGHTS.  HE ASKED IF THIS WASN'T THE
BASIS OF MOST OF MY CASE.  I SAID, 'NO.  IT WAS ONLY PART OF IT. ' . .
. THEN ONE MAN ASKED ME IF I WAS TRYING TO 'BEAT THE GAME.'  . . . I
SAID THAT THERE WERE EASIER WAYS TO AVOID THE DRAFT AND GAVE SOME
EXAMPLES.  . . . THE MAN WHO ASKED ME TO REREAD MY WRITTEN STATEMENT
SAID, I.E. WASN'T THAT ANSWER SUBVERSIVE.  I SAID 'MAYBE SO BUT I
BELIEVE I'M RIGHT.'  . . . THE OLDEST MAN ASKED ME IF I'D FOUGHT IN
HIGH SCHOOL.  I ANSWERED, 'NO' AND HE SAID, 'YOU MUST HAVE BEEN A REAL
GOOD BOY.'  HE THEN ASKED ME BETWEEN TWO AND FOUR TIMES TO 'ERADICATE'
THE THOUGHT FROM MY MIND THAT I HAD GOTTEN UNFAIR TREATMENT FROM THE
LOCAL BOARD." 

(C) DEPARTMENT OF JUSTICE RESUME. 

AFTER BEING DENIED CO STATUS, GABRIEL APPEALED.  AND AS IS CUSTOMARY
IN SUCH APPEALS, THE JUSTICE DEPARTMENT CONDUCTED AN INVESTIGATION INTO
THE SINCERITY OF HIS BELIEFS.  THE FOLLOWING IS A RESUME OF THE
INVESTIGATING OFFICER'S REPORT. 

"A REPRESENTATIVE OF BERKELEY HIGH SCHOOL . . . STATED THAT HE WAS A
'QUIET REBEL' BUT WAS MATURE FOR HIS AGE.  . . . ANOTHER REPRESENTATIVE
AT BERKELEY HIGH SCHOOL STATED THAT . . . SHE RECALLS THAT HE
DEMONSTRATED A HIGH REGARD FOR THE INDIVIDUAL . . . AND WAS EXTREMELY
CONSCIOUS OF THE ROLE IN SOCIETY OF THE AMERICAN NEGRO.  IT WAS ADVISED
THAT THE REGISTRANT'S MOTHER . . . AND STEP-FATHER HAVE BEEN
POLITICALLY ACTIVE IN SUCH ORGANIZATIONS AS THE CONGRESS FOR RACIAL
EQUALITY.  . . . A REPRESENTATIVE OF THE BUILDINGS AND GROUNDS
DEPARTMENT, SAN FRANCISCO STATE COLLEGE, ADVISED THAT THE REGISTRANT .
. . HAD A REPUTATION OF BEING INVOLVED IN ANY MOVEMENT WHICH HAS DOINGS
WITH ANTIWAR DEMONSTRATIONS OR ACTIVITIES.  THIS REPRESENTATIVE STATED
THAT HE NEVER ACTUALLY WITNESSED THE REGISTRANT IN THESE ACTIVITIES BUT
IT IS GENERAL KNOWLEDGE AMONG EMPLOYEES AROUND THE CAMPUS.  . . . AN
OFFICIAL OF THE MAGIC THEATRE, SAN FRANCISCO, CALIFORNIA ADVISED THAT .
. . THE REGISTRANT IS AGAINST WAR AND AGAINST MILITARY SERVICE.  IT WAS
FURTHER STATED THAT THE REGISTRANT HAS DISCUSSED THE VIETNAM WAR AND
CONSIDERS IT UNJUST.  . . . ONE PERSON INTERVIEWED IN SAN FRANCISCO,
CALIFORNIA ADVISED THAT SHE HAS RESIDED HERE IN AN APARTMENT BUILDING
FOR THE LAST FOUR OR FIVE YEARS.  SHE STATED AS SHE RECALLS, A YOUNG
NEGRO MALE RESIDED WITH A YOUNG WOMAN IN AN APARTMENT IN THIS BUILDING
ABOUT A YEAR AGO.  SHE BELIEVES THIS INDIVIDUAL MAY HAVE BEEN THE
REGISTRANT.  . . . A REFERENCE STATED THAT HE HAS KNOWN THE REGISTRANT
SINCE ABOUT 1963 . . . WHEN THEY BOTH WERE STUDENTS AT SAN FRANCISCO
STATE COLLEGE.  . . . HE FURTHER STATED THAT THE REGISTRANT COULD WELL
BE A COMMUNIST, HOWEVER, THEY HAVE NEVER DISCUSSED THIS.  HE ADVISED
THAT HE IS AWARE THAT THE REGISTRANT'S MOTHER AND FATHER ARE VERY MUCH
AGAINST WAR AND THEY ARE ACTIVE IN MOVEMENTS WHICH ARE AGAINST WAR.  HE
FURTHER STATED THAT THE REGISTRANT IS ALSO ACTIVE IN THESE MOVEMENTS
AND ORGANIZATIONS, HOWEVER, HE DID NOT KNOW THE NAMES OF THESE
ORGANIZATIONS.  IT WAS ALSO STATED THAT THE REGISTRANT HAS MENTIONED
THAT HE IS ACTIVE IN ANTI-WAR GROUPS AND HE BELIEVES HE HAS
PARTICIPATED IN ANTI-WAR MARCHES.  . . . ANOTHE REFERENCE STATED . . .
THAT WHEN (THE REGISTRANT) WENT TO REPORT FOR HIS ARMED FORCES PHYSICAL
EXAMINATION HE OBSERVED AN ANTI-DRAFT DEMONSTRATION OCCURRING IN FRONT
OF THE PHYSICAL FACILITIES AND FELT COMPELLED TO TAKE PART IN THE
DEMONSTRATION, WHICH HE DID."     (D) DEPARTMENT OF JUSTICE
RECOMMENDATION. 

AFTER CONDUCTING ITS INVESTIGATION, THE DEPARTMENT OF JUSTICE FILED
A "RECOMMENDATION" WITH THE LOCAL BOARD, SUGGESTING THAT GABRIEL BE
DENIED CO STATUS: 

"HE SAID THAT HE IS DEFINITELY NOT A COMMUNIST.  . . . THE
REGISTRANT ADVISED THAT HE IS, AND HAS BEEN, CONSISTENTLY NONVIOLENT,
AND THAT HE HAS NEVER BEEN A MEMBER OF ANY AGGRESSIVE ANTI-WAR
DEMONSTRATIONS.  HE SAID THAT, ALTHOUGH HE WAS A MEMBER OF THE VIETNAM
DAY COMMITTEE AND THE WAR RESISTANCE LEAGUE, AND HAS PARTICIPATED IN
PEACE MARCHES, HE HAS ALWAYS PARTICIPATED IN A PASSIVE OR PEACEFUL
MANNER." 

/1/  MEMBERSHIP IN A RELIGIOUS GROUP IS NOT, OF COURSE, THE SOLE
MEANS OF GETTING CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR, AS THE
EXEMPTION EXTENDS TO ANYONE WHO HAS THOSE CONSCIENTIOUS OBJECTIONS,
EVEN THOUGH HE IS NOT ASSOCIATED WITH OTHERS.  SEE UNITED STATES V.
SEEGER, 380 U.S. 163, 172-173. 

/2/  SEE WHITE, PROCESSING CONSCIENTIOUS OBJECTOR CLAIMS:  A
CONSTITUTIONAL INQUIRY, 56 CALIF.L.REV.  652, 660-667 (1968). 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WEISL, MORTON
HOLLANDER, AND ROBERT V. ZENER FOR APPELLANTS. 

NORMAN LEONARD FOR APPELLEE. 
..END :























OGLE V. HEIM, 393 U.S. 265 


       OGLE V. HEIM, AUDITOR-CONTROLLER OF COUNTY OF ORANGE. 

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 617.  DECIDED DECEMBER 16, 1968. 


69 CAL.2D 7, 442 P.2D 659, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

ERIC A. ROSE FOR APPELLANT. 

ROBERT F. NUTTMAN FOR APPELLEE. 
..END :











HOUSEHOLD GOODS CARRIERS' BUREAU V. UNITED STATES, 393 U.S. 265 


       HOUSEHOLD GOODS CARRIERS' BUREAU ET AL. V. UNITED STATES ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF CALIFORNIA. 

        NO. 615.  DECIDED DECEMBER 16, 1968. 


288 F.SUPP.  641, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

HOMER S. CARPENTER FOR APPELLANTS. 

ALAN F. WOHLSTETTER FOR HOUSEHOLD GOODS FORWARDERS ASSOCIATION OF
AMERICA, INC., ET AL., INTERVENING DEFENDANTS BELOW. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL ZIMMERMAN,
ROBERT W. GINNANE, AND BETTY JO CHRISTIAN FOR THE UNITED STATES ET AL.
..END :



WILSON V. KELLEY, 393 U.S. 266 


       WILSON ET AL V. KELLEY, CORRECTIONS DIRECTOR, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF GEORGIA. 

NO. 561.  DECIDED DECEMBER 16, 1968. 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

CHARLES MORGAN, JR., REBER F. BOULT, JR., HOWARD MOORE, JR., P.
WALTER JONES, ARTHUR KINOY, MELVIN L. WULF, AND MARTIN GARBUS FOR
APPELLANTS. 

ARTHUR K. BOLTON, ATTORNEY GENERAL OF GEORGIA, HAROLD N. HILL, JR.,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, MARION O. GORDON, MATHEW ROBINS,
AND W. WHEELER BRYAN, ASSISTANT ATTORNEYS GENERAL, AND DON L. HARTMAN,
DEPUTY ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :
























STANDARD OIL CO. V. LOS ANGELES, 393 U.S. 267 


       STANDARD OIL CO. OF CALIFORNIA V. CITY OF LOS ANGELES ET AL.

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

NO. 609.  DECIDED DECEMBER 16, 1968. 


262 CAL.APP.2D 118, 68 CAL.RPTR.  512, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

FRANCIS R. KIRKHAM, FRANCIS N. MARSHALL, AND MARCUS MATTSON FOR
APPELLANT. 

ROGER ARNEBERGH, GILMORE TILLMAN, HENRY E. KAPPLER, AND ELLIS J.
HORVITZ FOR APPELLEES. 
..END :






PALMIERI V. FLORIDA, 393 U.S. 218 


       PALMIERI V. FLORIDA. 

        CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

        NO. 131.  ARGUED NOVEMBER 20, 1968.-- DECIDED DECEMBER 9,

           1968. 


198 SO.2D 633, DISMISSED. 

PER CURIAM. 

THE PETITIONER WAS CONVICTED OF ROBBERY IN THE CRIMINAL COURT OF
DADE COUNTY, FLORIDA, AND THE JUDGMENT OF CONVICTION WAS AFFIRMED BY
THE DISTRICT COURT OF APPEALS, 189 SO.2D 512, AND THE SUPREME COURT OF
FLORIDA, 198 SO.2D 633.  WE GRANTED CERTIORARI BECAUSE THE CASE
APPEARED TO PRESENT A SUBSTANTIAL CONSTITUTIONAL QUESTION CONCERNING
THE ADMISSIBILITY AT TRIAL OF "LINEUP" IDENTIFICATIONS MADE AFTER THE
PETITIONER WAS ARRESTED WITHOUT PROBABLE CAUSE FOR THE SOLE PURPOSE OF
GATHERING EVIDENCE AGAINST HIM.  391 U.S. 934.  HOWEVER, UPON THE
COMPLETE REVIEW OF THE RECORD THAT HAS NOW BECOME POSSIBLE, AND IN THE
LIGHT OF ORAL ARGUMENT BY ABLE AND CONSCIENTIOUS COUNSEL, IT HAS BECOME
EVIDENT THAT THE LEGALITY OF THE PETITIONER'S ARREST WAS NOT AT ISSUE
IN THE FLORIDA APPELLATE COURTS, AND IS NOT CHALLENGED HERE. 
ACCORDINGLY, THE WRIT IS DISMISSED AS IMPROVIDENTLY GRANTED. 

              IT IS SO ORDERED. 

PHILLIP GOLDMAN, BY APPOINTMENT OF THE COURT, 392 U.S. 920, ARGUED
THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

HOWARD MENDELOW, ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE EARL FAIRCLOTH,
ATTORNEY GENERAL, AND EDWARD COWART, ASSISTANT ATTORNEY GENERAL. 
..END :















STILES V. UNITED STATES, 393 U.S. 219 


       STILES V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT. 

        NO. 74.  ARGUED NOVEMBER 20, 1968.-- DECIDED DECEMBER 9,

           1968. 


CERTIORARI DISMISSED. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

CHARLES J. ROGERS, JR., BY APPOINTMENT OF THE COURT, POST, P. 813,
ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL VINSON, JEROME M.
FEIT, AND LAWRENCE P. COHEN. 
..END :





LANDRY V. BOYLE, 393 U.S. 220 


       LANDRY ET AL. V. BOYLE, CHIEF JUDGE, ET AL.

   APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

         NORTHERN DISTRICT OF ILLINOIS. 

        NO. 659.  DECIDED DECEMBER 9, 1968. 


280 F.SUPP.  938, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR FAILURE TO COMPLY WITH RULE 13(1). 

ROBERT L. TUCKER, R. EUGENE PINCHAM, JEAN F. WILLIAMS, LEONARD
KARLIN, WILLIAM M. KUNSTLER, AND ARTHUR KINOY FOR APPELLANTS. 
..END :











SHAW V. GARRISON, 393 U.S. 220 


       SHAW V. GARRISON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

DISTRICT OF LOUISIANA. 

        NO. 579.  DECIDED DECEMBER 9, 1968. 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

HERVE RACIVITCH FOR APPELLANT. 

EBERHARD P. DEUTSCH AND RENE H. HIMEL, JR., FOR APPELLEES. 
..END :






CROSS V. ILLINOIS, 393 U.S. 221 


       CROSS V. ILLINOIS. 

        APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

        NO. 747, MISC.  DECIDED DECEMBER 9, 1968. 


40 ILL.2D 85, 237 N.E.2D 437, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITIONER FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

JOHN UNGER FOR APPELLANT. 
..END :











MOORE V. OHIO, 393 U.S. 221 


       MOORE V. OHIO. 

        APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 423, MISC.  DECIDED DECEMBER 9, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














SOUTH CAROLINA STATE BOARD OF EDUCATION V. BROWN, 393 U.S. 222 


       SOUTH CAROLINA STATE BOARD OF EDUCATION ET AL. V. BROWN ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF SOUTH CAROLINA. 

        NO. 553,  DECIDED DECEMBER 9, 1968.  /0/ 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

/0/  TOGETHER WITH NO. 563, CRIBB ET AL. V. BROWN ET AL., ALSO ON
APPEAL FROM THE SAME COURT. 

DANIEL R. MCLEOD, ATTORNEY GENERAL OF SOUTH CAROLINA, AND D. W.
ROBINSON FOR APPELLANTS IN NO. 553.  J. C. LONG FOR APPELLANTS IN NO.
563. 

SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY GENERAL POLLAK FOR
APPELLEE UNITED STATES IN BOTH CASES. 
..END :























SHUTTLE CORP. V. TRANSIT COMM'N., 393 U.S. 186 


       UNIVERSAL INTERPRETIVE SHUTTLE CORP. V. WASHINGTON

           METROPOLITAN AREA TRANSIT COMMISSION ET AL.

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT. 

NO. 19.  ARGUED OCTOBER 21-22, 1968.-- DECIDED NOVEMBER 25,

           1968. 


RESPONDENT WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION (WMATC)
SUED TO ENJOIN PETITIONER, A CONCESSIONAIRE UNDER CONTRACT WITH THE
SECRETARY OF THE INTERIOR, FROM OPERATING "MINIBUS" GUIDED TOURS OF THE
MALL, A PARK AREA IN THE CENTER OF WASHINGTON, D.C., WITHOUT OBTAINING
FROM WMATC A CERTIFICATE OF CONVENIENCE AND NECESSITY.  THE WMATC
CONCEDES THE SECRETARY'S SUBSTANTIAL POWERS OVER THE MALL UNDER
SPECIFIC AUTHORITY DATING FROM 1898 AND AS PART OF THE NATIONAL PARK
LANDS OVER WHICH HE HAS BROAD STATUTORY JURISDICTION.  WMATC CONTENDS,
HOWEVER, THAT THE INTERSTATE COMPACT UNDER WHICH IT WAS ESTABLISHED TO
CENTRALIZE RESPONSIBILITY OVER MASS TRANSIT SERVICE IN THE WASHINGTON
METROPOLITAN AREA IMPLICITLY LIMITS THE SECRETARY'S POWER TO CONTRACT
FOR PROVISION OF TOUR SERVICES BY A CONCESSIONAIRE UNCERTIFIED BY
WMATC.  WMATC-CERTIFIED CARRIERS FURNISHING MASS TRANSIT AND
SIGHTSEEING SERVICES IN WASHINGTON, INCLUDING D.C. TRANSIT SYSTEM,
INC., WHICH CONTENDS THAT ITS FRANCHISE ALSO LIMITS THE SECRETARY'S
POWER, INTERVENED AS PLAINTIFFS.  THE DISTRICT COURT DISMISSED THE SUIT
AND THE COURT OF APPEALS REVERSED.  HELD: 

1.  WHEN CONGRESS ESTABLISHED THE WMATC, IT DID NOT INTEND TO CREATE
DUAL REGULATORY JURISDICTION BY DIVESTING THE SECRETARY OF INTERIOR OF
HIS LONG-STANDING "EXCLUSIVE CHARGE AND CONTROL" OVER THE MALL, AND THE
WMATC IS WITHOUT AUTHORITY TO REQUIRE THAT PETITIONER OBTAIN FROM IT A
CERTIFICATE OF CONVENIENCE AND NECESSITY.  PP. 189-194. 

2.  D.C. TRANSIT'S FRANCHISE, WHICH PROTECTS IF FROM COMPETITION BY
AN UNCERTIFIED BUS LINE TRANSPORTING PASSENGERS OVER A GIVEN ROUTE ON A
FIXED SCHEDULE IN AREAS UNDER WMATC JURISDICTION, DOES NOT PROTECT IT
AGAINST COMPETITION FROM PETITIONER'S LESISURELY SIGHTSEEING SERVICE ON
THE MALL OUTSIDE WMATC JURISDICTION.  PP. 194-196. 

REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE SECRETARY OF THE INTERIOR IS RESPONSIBLE FOR MAINTAINING OUR
NATIONAL PARKS, AND FOR PROVIDING FACILITIES AND SERVICES FOR THEIR
PUBLIC ENJOYMENT THROUGH CONCESSIONAIRES OR OTHERWISE.  /1/  IN MEETING
THIS RESPONSIBILITY, HE HAS CONTRACTED FOR PETITIONER TO CONDUCT GUIDED
TOURS OF THE MALL, A GRASSY PARK LOCATED IN THE CENTER OF THE CITY OF
WASHINGTON AND STUDDED WITH NATIONAL MONUMENTS AND MUSEUMS.  VISITORS
TO THE MALL MAY BOARD PETITIONER'S OPEN "MINIBUSES" WHICH TRAVEL AMONG
THE VARIOUS POINTS OF INTEREST AT SPEEDS UNDER 10 MILES PER HOUR. 
GUIDES ON THE BUSES AND AT CERTAIN STATIONARY LOCATIONS DESCRIBE THE
SIGHTS.  VISITORS MAY DEBARK TO TOUR THE MUSEUMS, BOARDING A LATER BUS
TO RETURN TO THE POINT OF DEPARTURE. 

SUIT WAS BROUGHT BY THE WASHINGTON METROPOLITAN AREA TRANSIT
COMMISSION (HEREAFTER WMATC) TO ENJOIN PETITIONER FROM CONDUCTING TOURS
OF THE MALL WITHOUT A CERTIFICATE OF CONVENIENCE AND NECESSITY FROM THE
WMATC.  CARRIERS PERMITTED BY WMATC TO PROVIDE MASS TRANSIT AND
SIGHTSEEING SERVICES IN THE CITY OF WASHINGTON INTERVENED AS
PLAINTIFFS, AND THE UNITED STATES APPEARED AS AMICUS CURIAE.  THE
CONCESSIONAIRE AND THE UNITED STATES CONTEND THAT THE SECRETARY'S
AUTHORITY OVER NATIONAL PARK LANDS, AND IN PARTICULAR HIS GRANT OF
"EXCLUSIVE CHARGE AND CONTROL"  OVER THE MALL DATING FROM 1898, /2/
PERMIT HIM TO CONTRACT FOR THIS ERVICE WITHOUT INTERFERENCE.  THE
CARRIERS AND WMATC ARGUE THAT THE INTERSTATE COMPACT WHICH CREATED THE
WMATC IMPLICITLY LIMITED THE SECRETARY'S AUTHORITY OVER THE MALL, AND
GAVE RISE TO DUAL JURISDICTION OVER THESE TOURS IN THE SECRETARY AND
THE WMATC.  ONE CARRIER, D.C. TRANSIT SYSTEM, INC., ALSO ARGUES THAT
ITS FRANCHISE LIMITS THE SECRETARY'S POWER.  IN A DETAILED OPINION THE
DISTRICT COURT DISMISSED THE SUIT.  THE COURT OF APPEALS REVERSED
WITHOUT OPINION.  WE GRANTED CERTIORARI AND, HAVING HEARD THE CASE AND
EXAMINED THE WEB OF STATUTES ON WHICH IT TURNS, WE REVERSE, FINDING THE
SECRETARY'S EXCLUSIVE AUTHORITY TO CONTRACT FOR SERVICES ON THE MALL
UNDIMINISHED BY THE COMPACT CREATING WMATC OR BY THE CHARTER GRANTED A
PRIVATE BUS COMPANY. 

        I. 

THAT THE SECRETARY HAS SUBSTANTIAL POWER OVER THE MALL IS UNDISPUTED. 
THE PARTIES AGREE THAT HE IS FREE TO ENTER INTO THE CONTRACT IN
QUESTION.  THEY ALSO AGREE THAT HE IS FREE TO EXCLUDE TRAFFIC FROM THE
MALL ALTOGETHER, OR SELECTIVELY TO EXCLUDE FROM THE MALL ANY CARRIER
LICENSED BY THE WMATC OR FOLLOWING WMATC INSTRUCTIONS.  MOREOVER, THE
PARTIES AGREE THAT THE SECRETARY COULD OPERATE THE TOUR SERVICE HIMSELF
WITHOUT NEED TO OBTAIN PERMISSION FROM ANYONE.  /3/  YET THE WMATC
ARGUES THAT BEFORE THE SECRETARY'S POWER MAY BE EXERCISED THROUGH A
CONCESSIONAIRE, THECONSENT OF THE WMATC MUST BE OBTAINED. 

THIS INTERPRETATION OF THE STATUTES INVOLVED WOULD RESULT IN A DUAL
REGULATORY JURISDICTION OVERLAPPING ON THE MOST FUNDAMENTAL MATTERS. 
THE SECRETARY IS EMPOWERED BY STATUTE TO "CONTRACT FOR SERVICES . . .
PROVIDED IN THE NATIONAL PARKS . . . FOR THE PUBLIC . . . AS MAY BE
REQUIRED IN THE ADMINISTRATION OF THE NATIONAL PARK SERVICE.  . . . "
ACT OF MAY 26, 1930, C. 324, SEC. 3, 46 STAT. 382, 16 U.S.C. 17B. 
MOREOVER, HE IS "TO ENCOURAGE AND ENABLE PRIVATE PERSONS AND
CORPORATIONS . . . TO PROVIDE AND OPERATE FACILITIES AND SERVICES WHICH
HE DEEMS DESIRABLE.  . . . "  PUB. L. 89-249, SEC. 2, 79 STAT. 969, 16
U.S.C. 20A (1964 ED., SUPP. III).  CONGRESS WAS WELL AWARE THAT THE
SERVICES PROVIDED BY THESE NATIONAL PARK CONCESSIONAIRES INCLUDE
TRANSPORTATION.  HEARINGS ON H.R. 5796, 5872, 5873, 5886, AND 5887
BEFORE THE SUBCOMMITTEE ON NATIONAL PARKS OF THE HOUSE COMMITTEE ON
INTERIOR AND INSULAR AFFIARS, 88TH CONG., 2D SESS., 151-159 (1964).  IN
THIS CASE THE SECRETARY CONCLUDED THAT THERE WAS A PUBLIC NEED FOR A
MOTORIZED, GUIDED TOUR OF THE GROUNDS UNDER HIS CONTROL, AND THAT
PETITIONER WAS MOST FIT TO PROVIDE IT. 

THE WMATC, HOWEVER, ALSO ASSERTS THE POWER TO DECIDE WHETHER THIS
TOUR SERVES "PUBLIC CONVENIENCE AND NECESSITY," AND THE POWER TO
REQUIRE THE CONCESSIONAIRE TO "CONFORM TO THE . . . REQUIREMENTS OF THE
COMMISSION" AND THE "TERMS AND CONDICTIONS" WHICH IT MAY IMPOSE.  PUB.
L. 86-794, TIT. II, ART. XII, SEC. 4(B), 74 STAT. 1037.  THE
SECRETARY'S CONTRACT LEAVES THE TOUR'S ROUTE UNDER HIS CONTROL, BUT THE
WMATC WOULD IN ITS CERTIFICATE SPECIFY THE "SERVICE TO BE RENDERED AND
THE ROUTES OVER WHICH" THE CONCESSIONAIRE MIGHT RUN WITHIN THE MALL. 
PUB. L. 86-794, TIT. II, ART. XII, SEC. 4(D)(1), 74 STAT. 1037. 
MOREOVER, THE WMATC MIGHT REQUIRE THE PROVISION OF ADDITIONAL SERVICE
ON OR OFF THE MALL AND FORBID THE DISCONTINUANCE OF ANY EXISTING
SERVICE.  PUB. L. 86-794, TIT. II, ART. XII, SEC. 4(E) AND (I), 74
STAT. 1038, 1039.  THE CONTRACT WITH THE SECRETARY PROVIDES FARE
SCHEDULES, PURSUANT TO STATUTORY AUTHORITY IN THE SECRETARY TO REGULATE
THE CONCESSIONAIRE'S CHARGES.  PUB. L. 89-249, SEC. 3, 79 STAT. 969, 16
U.S.C. 20B (1964 ED., SUPP. III).  THE WMATC WOULD HAVE THE POWER TO
"SUSPEND ANY FARE, REGULATION, OR PRACTICE" DEPENDING ON THE WMATC'S
VIEWS OF THE FINANCIAL CONDITION, EFFICIENCY, AND EFFECTIVENESS OF THE
CONCESSIONAIRE AND THE REASONABLENESS OF THE RATE.  PUB. L. 86-794,
TIT. II, ART. XII, SEC. 6, 74 STAT. 1040.  AND UNDER THE SAME SECTION
THE WMATC COULD SET WHATEVER FARE IT FOUND REASONABLE, ALTHOUGH A
PROFIT OF 6 1/2% OR LESS COULD NOT BE PROHIBITED.  THE SECRETARY IS
GIVEN STATUTORY AUTHORITY TO REQUIRE THE KEEPING OF RECORDS BY THE
CONCESSIONAIRE AND TO INSPECT THOSE RECORDS, AND THE COMPTROLLER
GENERAL IS REQUIRED TO EXAMINE THE CONCESSIONAIRE'S BOOKS EVERY FIVE
YEARS.  PUB. L. 89-249, SEC. 9, 79 STAT. 971, 16 U.S.C. 20G (1964 ED.,
SUPP. III).  THE WMATC WOULD ALSO HAVE THE POWER TO REQUIRE REPORTS AND
TO PRESCRIBE AND HAVE ACCESS TO THE RECORDS TO BE KEPT.  PUB. L. 86
794, TIT. II, ART. XII, SEC. 10, 74 STAT. 1042.  FINALLY, THE SECRETARY
IS GIVEN BY STATUTE THE GENERAL POWER TO SPECIFY BY CONTRACT THE DUTIES
OF A CONCESSIONAIRE, 16 U.S.C. 17B, 20-20G (1964 ED. AND SUPP. III);
THE WMATC WOULD CLAIM THIS POWER BY REGULATION AND RULE.  PUB. L. 86
794, TIT. II, ART. XII, SEC. 15, 74 STAT. 1045. 

WE CANNOT ASCRIBE TO CONGRESS A PURPOSE OF SUBJECTING THE
CONCESSIONAIRE TO THESE TWO SEPARATE MASTERS, WHO SHOW AT THE OUTSET
THEIR INABILITY TO AGREE BY PRESENCE ON THE OPPOSITE SIDES OF THIS
LAWSUIT.  THERE IS NO INDICATION FROM STATUTORY LANGUAGE OR LEGISLATIVE
HISTORY THAT CONGRESS INTENDED TO DIVEST THE SECRETARY PARTLY OR WHOLLY
OF HIS AUTHORITY IN ESTABLISHING THE WMATC.  WHEN THE WMATC WAS FORMED
THERE WAS IN THE STATUTE BOOKS, AS THERE IS NOW, A PROVISION THAT THE
"PARK SYSTEM OF THE DISTRICT OF COLUMBIA IS PLACED UNDER THE EXCLUSIVE
CHARGE AND CONTROL OF THE DIRECTOR OF THE NATIONAL PARK SERVICE."  ACT
OF JULY 1, 1898, C. 543, SEC. 2, 30 STAT. 570, AS AMENDED, D.C. CODE
SEC. 8-180 (1967).  HE WAS, AND IS, EXPLICITLY "AUTHORIZED AND
EMPOWERED TO MAKE AND ENFORCE ALL REGULATIONS FOR THE CONTROL OF
VEHICLES AND TRAFFIC."  ACT OF JUNE 5, 1920, C. 235, SEC. 1, 41 STAT.
898, D.C. CODE SEC. 8-109 (1967).  AND THIS EXTENDS TO SIDEWALKS AND
STREETS WHICH "LIE BETWEEN THE SEPARATE THE SAID PUBLIC GROUNDS."  ACT
OF MARCH 4, 1909, C. 299, SEC. 1, 35 STAT. 994, D.C. CODE SEC. 8-144
(1967).  /4/  THE CREATION OF THE PUBLIC UTILITIES COMMISSION-- THE
PREDECESSOR OF THE WMATC-- WAS NOT INTENDED "TO INTERFERE WITH THE
EXCLUSIVE CHARGE AND CONTROL . . . COMMITTED TO" THE PREDECESSOR OF THE
NATIONAL PARK SERVICE.  ACT OF MARCH 3, 1925, C. 443, SEC. 16(B), 43
STAT. 1126, AS AMENDED, D.C. CODE SEC. 40-613 (1967). 

IN THIS CONTEXT THE WMATC WAS ESTABLISHED.  AFTER WORLD WAR II,
METROPOLITAN WASHINGTON HAD EXPANDED RAPIDLY INTO MARYLAND AND
VIRGINIA.  THE LOGISTICS OF MOVING VAST NUMERS OF PEOPLE ON THEIR DAILY
ROUND BECAME INCREASINGLY COMPLICATED, AND INCREASINGLY IN NEED OF
COORDINATED SUPREVISION.  CONGRESS THEREFORE GAVE ITS CONSENT AND
APPROVAL THROUGH A JOINT RESOLUTION TO AN INTERSTATE COMPACT WHICH
"CENTRALIZES TO A GREAT DEGREE IN A SINGLE AGENCY . . . THE REGULATORY
POWERS OF PRIVATE TRANSIT NOW SHARED BY FOUR REGULATORY POWERS OF
PRIVATE TRANSIT NOW SHARED BY FOUR REGULATORY AGENCIES."  S. REP. NO.
1906, 86TH CONG., 2D SESS., 2 (1960).  THESE FOUR AGENCIES WERE "THE
PUBLIC UTILITY REGULATORY AGENCIES OF THE STATES OF VIRGINIA, MARYLAND,
AND THE DISTRICT OF COLUMBIA AND THE INTERSTATE COMMERCE COMMISSION." 
PUB. L. 86-794, 74 STAT. 1031.  THE SECRETARY WAS NOT INCLUDED IN THIS
LISTING.  MOREOVER, CONGRESS SPECIFICALLY PROVIDED THAT NOTHING IN THE
ACT OR COMPACT "SHALL AFFECT THE NORMAL AND ORDINARY POLICE POWERS . .
. OF THE DIRECTOR OF THE NATIONAL PARK SERVICE WITH RESPECT TO THE
REGULATION OF VEHICLES, CONTROL OF TRAFFIC AND USE OF STREETS,
HIGHWAYS, AND OTHER VEHICULAR FACILITIES.  . . . "  /5/  FINALLY, THE
HOUSE REPORT ON THE COMPACT LISTS THE FEDERAL LEGISLATION WHICH WAS
SUSPENDED TO GIVE EFFECT TO THE COMPACT, AND THE LAWS GIVING EXCLUSIVE
CONTROL OF THE MALL TO THE SECRETARY ARE NOT ON THE LIST.  H.R. REP.
NO. 1621, 86TH CONG., 2D SESS., 29-30 (1960). 

THERE IS THUS NO REASON TO IGNORE THE PRINCIPLE THAT REPEALS BY
IMPLICATION ARE NOT FAVORED /6/  OR TO SUSPECT THAT THE CONGRESS, IN
CREATING THE WMATC, DISTURBED THE EXCLUSIVITY OF THE SECRETARY'S
CONTROL OVER THE MALL EITHER BY EXTINGUISHING ENTIRELY HIS POWER TO
CONTRACT FOR TRANSPORTATION SERVICES OR BY BURDENING THE CONCESSIONAIRE
WITH TWO SEPARATE AGENCIES ENGAGED IN REGULATING PRECISELY THE SAME
ASPECTS OF ITS CONDUCT.  CONGRESS WAS ENDEAVORING TO SIMPLIFY THE
REGULATION OF TRANSPORTATION BY CREATING THE WMATC, NOT TO THRUST IT
FURTHER INTO A BUREAUCRATIC MORASS.  IT THEREFORE ESTABLISHED THE WMATC
TO REGULATE THE MASS TRANSIT OF COMMUTERS AND WORKERS.  A SYSTEM OF
MINIBUSES, PROCEEDING IN A CIRCULAR ROUTE AROUND RTHE MALL AT LESS THAN
10 MILES PER HOUR, AND STOPPING FROM TIME TO TIME TO DESCRIBE THE
SIGHTS BEFORE DISGORGING MOST PASSENGERS WHERE IT PICKED THEM UP,
SERVES QUITE A DIFFERENT FUNCTION.  /7/  THE MALL IS, AND WAS INTENDED
TO BE, AN EXPANSIVE,OPEN SANCTUARY IN THE MIDST OF A METROPOLIS; A SPOT
SUITABLE FOR AMERICANS TO VISIT TO EXAMINE THE HISTORICAL ARTIFACTS OF
THEIR COUNTRY AND TO REFLECT ON MONUMENTS TO THE MEN AND EVENTS OF ITS
HISTORY.  THE SECRETARY HAS LONG HAD EXCLUSIVE CONTROL OF THE MALL AND
AMPLE POWER TO DEVELOP IT FOR THESE PURPOSES.  WE HOLD THAT THE WMATC
HAS NOT BEEN EMPOWERED TO IMPOSE ITS OWN REGULATORY REQUIREMENTS ON THE
SAME SUBJECT MATTER. 

        II. 

IF THE WMATC IS WITHOUT JURISDICTION TO ISSUE A CERTIFICATE OF
CONVENIENCE AND NECESSITY IN THIS CASE, AS WE HAVE FOUND, THEN THE D.C.
TRANSIT SYSTEM'S INTERPRETATION OF ITS FRANCHISE AS PROTECTING IT FROM
ANY UNCERTIFIED SIGHTSEEING SERIVCE ON THE MALL WOULD GIVE IT AN
ABSOLUTE MONOPOLY OF SERVICE THERE:  THE WMATC, LACKING JURISDICTION
OVER THE MALL, WOULD HAVE NO AUTHORITY TO CERTIFY ANOTHER CARRIER.  THE
SECRETARY, IF D.C. TRANSIT IS RIGHT, WOULD HAVE TO TAKE D.C. TRANSIT OR
NO ONE.  NOTHING IN THE STATUTE CONFERS SO RIGID A MONOPOLY. 

I, PT. 1, 70 STAT. 598, CONFERS THE POWER TO OPERATE A "MASS
TRANSPORTATION SYSTEM."  /8/  THAT THIS DOES NOT INCLUDE SIGHTSEEING IS
CLEARLY SHOWN BY THE SEPARATE GRANT OF POWER TO OPERATE "CHARTER OR
SIGHTSEEING SERVICES" IN SEC. 6, 70 STAT. 599.  /9/  THE SECTION GIVING
D.C. TRANSIT A MEASURE OF EXCLUSIVITY IS SEC. 3, 70 STAT. 598, WHICH
PROTECTS IT FROM ANY UNCERTIFIED "COMPETITIVE . . . BUS LINE" FOR THE
"TRANSPORTATION OF PASSENGERS OF THE CHARACTER WHICH RUNS OVER A GIVEN
ROUTE ON A FIXED SCHEDULE.  . . . "  /10/  IN DETERMINING WHAT IS
"COMPETITIVE" ONE MUST REFER BACK TO THE SECTIONS WHICH GRANT THE
FRANCHISE. 

EVEN IF SECS. 1 AND 3 TOGETHER WOULD PROTECT "MASS TRANSPORTATION"
ON THE MALL FROM UNCERTIFIED COMPETITION, AND EVEN IF SEC. 3 PROTECTS
SEC. 6 ACTIVITY, IT DOES NOT FOLLOW THAT D.C. TRANSIT HAS A MONOPOLY
OVER SIGHTSEEING ON THE MALL.  SECTION 6 EXPLICITLY SAVES THE "LAWS . .
. OF THE DISTRICT OF COLUMBIA," INCLUDING THE "EXCLUSIVE CHARGE AND
CONTROL" OF THE SECRETARY OVER THE MALL.  D.C. CODE SEC. 8-108 (1967). 
D.C. TRANSIT ADMITS THE SECRETARY COULD EXCLUDE ITS SIGHTSEEING SERVICE
FROM THE MALL; IF SO, SURELY THE FRANCHISE PROTECTION DOES NOT EXTEND
THERE.  MOREOVER, SECS. 3 AND 6 TOGETHER CANNOT CONFER A MONOPOLY OF
MALL SIGHTSEEING BOTH BECAUSE THIS WOULD INVOLVE AN IMPAIRMENT OF THE
SECRETARY'S POWER UNDER DISTRICT LAW CONTRARY TO SEC. 6, AND BECAUSE IT
WOULD BE UNREASONABLE TO CONSTRUE THE PROTECTION OF SEC. 3 AGAINST
CARRIERS UNCERTIFIED BY THE WMATC TO APPLY WHERE THE WMATC HAS NO
POWERS OF CERTIFICATION. 

AND EVEN WERE SEC. 3 SO CONSTRUED, ITS PROTECTION AGAINST
"TRANSPORTATION OF PASSENGERS OF THE CHARACTER WHICH RUNS OVER A GIVEN
ROUTE ON A FIXED SCHEDULE" WAS EVIDENTLY AIMED AT COMMUTER SERVICE
WHOSE MOST IMPORTANT QUALITIES ARE SPEED AND PREDICTABILITY, NOT THE
SERVICE HERE WHOSE MOST IMPORTANT QUALITIES ARE INTERESTING DIALOGUE
AND LEISURELY EXPOSURE OF THE RIDER TO NEW AND PERHAPS UNEXPECTED
EXPERIENCES.  THE AGENDA OF THE TOUR WILL BE VARIED BY THE SECRETARY
ACCORDING TO THE EVENTS OF THE DAY.  THE FRANCHISE DOES NOT PROTECT
D.C. TRANSIT AGAINST COMPETITION IN THIS SORT OF SERVICE ON THE MALL. 
WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REINSTATE THE
JUDGMENT OF THE DISTRICT COURT.  IF THE CONGRESS, WHICH HAS THE MATTER
BEFORE IT, WISHES TO CLARIFY OR ALTER THE RELATIONSHIP OF THESE
STATUTES AND AGENCIES, IT IS ENTIRELY FREE TO DO SO.

              REVERSED AND REMANDED. 

/1/  16 U.S.C. 1, 17B, 20 (1964 ED. AND SUPP. III).  THIS
RESPONSIBILITY IS MET PRINCIPALLY THROUGH THE NATIONAL PARK SERVICE,
WHICH WAS CREATED BY THE ACT OF AUGUST 25, 1916, C. 408, SEC. 1, 39
STAT. 535, AS AN AGENCY OF THE DEPARTMENT OF THE INTERIOR.  SINCE THERE
IS NO CONFLICT BETWEEN THEM, WE SHALL REFER DIRECTLY TO THE SECRETARY
OF THE INTERIOR RATHER THAN TO THE DIRECTOR OF THE NATIONAL PARK
SERVICE. 

/2/  IN THE ACT OF JULY 1, 1898, C. 543, SEC. 2, 30 STAT. 570,
CONGRESS PLACED THE DISTRICT OF COLUMBIA PARKS UNDER THE "EXCLUSIVE
CHARGE AND CONTROL" OF THE UNITED STATES ARMY CHIEF OF ENGINEERS.  THIS
AUTHORITY WAS TRANSFERRED IN THE ACT OF GEBRUARY 26, 1925, C. 339, 43
STAT. 983, TO THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE
NATIONAL CAPITAL.  AND IN EXECUTIVE ORDER NO. 6166, JUNE 10, 1933, H.R.
DOC. NO. 69, 73D CONG., 1ST SESS., SEC. 2, THIS AUTHORITY FINALLY
DEVOLVED UPON THE AGENCY NOW CALLED THE NATIONAL PARK SERVICE.  ACT OF
MARCH 2, 1934, C. 38, SEC. 1, 48 STAT. 389. 

/3/  D.C. TRANSIT SYSTEM, INC., AN INTERVENING CARRIER, CONTENDS
OTHERWISE.  BUT THAT POSITION IS NOT DIRECTLY AT ISSUE IN OUR VIEW OF
THE CASE. 

/4/  THE SECRETARY'S POWER DOES NOT EXTEND BEYOND THESE LIMITS,
HOWEVER.  IN ORDER TO INSTITUTE A TRANSPORTATION SERVICE FROM THE MALL
TO A PROPOSED VISITORS' CENTER IN UNION STATION HE SOUGHT SPECIFIC
AUTHORIZATION FROM CONGRESS TO ADD TO AND CONFIRM HIS EXISTING
AUTHORITY AND PROVIDE A SERVICE EMBRACING BOTH THE MALL AND ITS
SURROUNDINGS.  S. REP. NO. 959, 90TH CONG., 2D SESS., 8-10 (1968). 
CONGRESS SIMPLY DIRECTED HIM TO STUDY THE TRANSPORTATION NEEDS OF THE
ENTIRE AREA.  PUB. L. 90-264, TIT. I, SEC. 104, 82 STAT. 44 (1968); S.
REP. NO. 959, 90TH CONG., 2D SESS., 3 (1968); H.R. REP. NO. 810, 90TH
CONG., 1ST SESS., 5 (1967). 

/5/  PUB. L. 86-794, SEC. 3, 74 STAT. 1050.  THE TERM "POLICE POWER"
IS A VAGUE ONE WHICH "EMBRACES AN ALMOST INFINITE VARIETY OF
SUBJECTS."  MUNN V. ILLINOIS, 94 U.S. 113, 145 (1877) (ECONOMIC
REGULATION OF GRAIN STORAGE AN ASPECT OF POLICE POWER).  IT IS BROAD
ENOUGH TO EMBRACE THE FULL RANGE OF THE SECRETARY'S POWER OVER THE
MALL, WHICH EVEN PRIOR TO THE COMPACT WAS ORDINARILY DIRECTED TO ENDS
QUITE DIFFERENT FROM THAT OF THE SURROUNDING MUNICIPALITIES IN
REGULATING THEIR STREETS.  THE SECRETARY SOUGHT EXPLICIT RECOGNITION OF
THESE DIFFERENCES THROUGH USE OF MORE SPECIFIC LANGUAGE IN THE COMPACT,
BUT HIS CLARIFICATION WAS NOT ADOPTED.  H.R. REP. NO. 1621, 86TH CONG.,
2D SESS., 20, 48-49 (1960). 

/6/  E.G., WOOD V. UNITED STATES, 16 PET. 342, 363 (1842); FTC V.
A.P.W. PAPER CO., 328 U.S. 193, 202 (1946). 

/7/  THIS TRANSPORTATION IS UNDERTAKEN BY CONTRACT WITH THE FEDERAL
GOVERNMENT TO SERVE A PURPOSE OF THE FEDERAL GOVERNMENT, AND SO MIGHT
BE THOUGHT TO FALL WITHIN THE SPECIFIC EXEMPTION FROM THE COMPACT FOR
TRANSPORTATION BY THE FEDERAL GOVERNMENT.  PUB. L. 86-794, TIT. II,
ART. XII, SEC. 1(A)(2), 74 STAT. 1036.  MOREOVER, IT IS NOT PRIMARILY
DESIGNED TO TRANSPORT PEOPLE "BETWEEN ANY POINTS" BUT RATHER BACK RTO
THE SAME POINT OF DEPARTURE, AND MIGHT THEREFORE BE EXCEPTED FROM THE
WMATC'S JURISDICTION.  PUB. L. 86-794, TIT. II, ART. XII, SEC. 1(A), 74
STAT. 1035.  BUT WE FIND IT UNNECESSARY TO REACH THESE ARGUMENTS, WHICH
WOULD INVOLVE MUCH MORE SEVERE LIMITS ON THE POWER OF THE WMATC
THROUGHOUT THE CITY. 

/8/  "THERE IS HEREBY GRANTED TO D.C. TRANSIT SYSTEM, INC. . . . A
FRANCHISE TO OPERATE A MASS TRANSPORTATION SYSTEM OF PASSENGERS FOR
HIRE WITHIN THE DISTRICT OF COLUMBIA . . . THE CITIES OF ALEXANDRIA AND
FALLS CHURCH, AND THE COUNTIES OF ARLINGTON AND FAIRFAX IN THE
COMMONWEALTH OF VIRGINIA AND THE COUNTIES OF MONTGOERMY AND PRINCE
GEORGE IN THE SRTATE OF MARYLAND . . . PROVIDED, THAT NOTHING IN THIS
ORDINANCE OF THE COMMONWEALTH OF VIRGINIA OR THE STATE OF MARYLAND OR
ANY POLITICAL SUBDIVISION OF SUCH COMMONWEALTH OR STATE, OR OF ANY
RULE, REGULATION, OR ORDER ISSUED UNDER THE AUTHORITY OF ANY SUCH LAW
OR ORDINANCE, OR FROM APPLICABLE PROVISIONS OF THE INTERSTATE COMMERCE
ACT AND RULES AND REGULATIONS PRESCRIBED THEREUNDER." 

/9/  "THE CORPORATION IS HEREBY AUTHORIZED AND EMPOWERED TO ENGAGE IN
SPECIAL CHARTER OR SIGHTSEEING SERVICES SUBJECT TO COMPLIANCE WITH
APPLICABLE LAWS, RULES AND REGULATIONS OF THE DISTRICT OF COLUMBIA AND
OF THE MUNICIPALITIES OR POLITICAL SUBDIVISIONS OF THE STATES IN WHICH
SUCH SERVICE IS TO BE PERFORMED, AND WITH APPLICABLE PROVISIONS OF THE
INTERSTATE COMMERCE ACT AND RULES AND REGULATIONS PRESCRIBED
THEREUNDER." 

/10/  "NO COMPETITIVE STREET RAILWAY OR BUS LINE, THAT IS, BUS OR
RAILWAY LINE FOR THE TRANSPORTATION OF PASSENGERS OF THE CHARACTER
WHICH RUNS OVER A GIVEN ROUTE ON A FIXED SCHEDULE, SHALL BE ESTABLISHED
TO OPERATE IN THE DISTRICT OF COLUMBIA WITHOUT THE PRIOR ISSUANCE OF A
CERTIFICATE BY THE PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF
COLUMBIA . . . TO THE EFFECT THAT THE COMPETITIVE LINE IS NECESSARY FOR
THE CONVENIENCE OF THE PUBLIC." 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART CONCURS,
DISSENTING. 

WE HAVE SAID OVER AND AGAIN THAT WE DO NOT SIT TO REVIEW DECISIONS
ON LOCAL LAW BY DISTRICT OF COLUMBIA COURTS WHERE THE REACH OF THAT LAW
IS CONFINED TO THE DISTRICT.  DISTRICT OF COLUMBIA V. PACE, 320 U.S.
698, 702; BUSBY V. ELECTRIC UTILITIES UNION, 323 U.S. 72, 75. 

THAT LAW IS NOT ONLY PECULIARLY LOCAL; IT IS A COMPENDIUM OF A
VARIETY OF LAWS DRAWN FROM NUMEROUS SOURCES, /0/  WITH WHICH THE JUDGES
IN THE DISTRICT ARE MUCH MORE FAMILIAR THAN ARE WE.  NO LEGAL PROBLEM
IS MORE OBVIOUSLY PECULIAR TO THE DISTRICT THAN THE ONE POSED BY THE
PRESENT CASE.  TRAFFIC, INCLUDING THE MOVEMENT OF TOURISTS, IS A
SPECIAL CONCERN OF LOCAL GOVERNMENT.  THE DISTRICT COURT HELD THAT THE
SECRETARY OF THE INTERIOR, NOT WMATC, WAS THE APPROPRIATE LICENSING
AUTHORITY.  THE COURT OF APPEALS BY A TWO-TO-ONE VOTE REVERSED BUT DID
NOT FILE AN OPINION BECAUSE "THE INTERESTS OF THE PARTIES AND OF THE
PUBLIC WOULD BE BETTER SERVED" BY A PROMPT DISPOSITION OF THE CASE. 
THE COURT OF APPEALS EN BANC, TWO JUDGES DISSENTING, DENIED A PETITION
FOR REHEARING. 

THE CONTRARIETY OF VIEWS BELOW SUGGESTS THAT THIS QUESTION OF LOCAL
LAW IS NOT FREE FROM DOUBT.  CERTAINLY IT IS NOT A CASE WHERE THE
DECISION IS SO PALPABLY WRONG AS TO MAKE IT THE EXCEPTIONAL CASE FORE
REVIEW BY THIS COURT.  NOR IS THIS QUESTION OF LOCAL LAW SO ENMESHED
WITH CONSTITUTIONAL QUESTIONS AS TO MAKE APPROPRIATE ITS RESOLUTION
HERE.  SEE DISTRICT OF COLUMBIA V. LITTLE, 339 U.S. 1, 4, N. 1;
DISTRICT OF COLUMBIA V. THOMPSON CO., 346 U.S. 100. 

THESE CONSIDERATIONS MAKE MUCH MORE APPROPRIATE HERE THAN IN FISHER
V. UNITED STATES, 328 U.S. 463, 476 (FROM WHICH THE QUOTATION IS
TAKEN), THE FOLLOWING OBSERVATION: 

     "MATTERS RELATING TO LAW ENFORCEMENT IN THE DISTRICT ARE

  ENTRUSTED TO THE COURTS OF THE DISTRICT.  OUR POLICY IS NOT TO

  INTERFERE WITH THE LOCAL RULES OF LAW WHICH THEY FASHION, SAVE IN

  EXCEPTIONAL SITUATIONS WHERE EGREGIOUS ERROR HAS BEEN COMMITTED. 

     "WHERE THE CHOICE OF THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA IN LOCAL MATTERS BETWEEN CONFLICTING LEGAL CONCLUSIONS

  SEEMS NICELY BALANCED, WE DO NOT INTERFERE." 

THE PRESENT CASE COULD NOT BE MORE PRECISELY DESCRIBED. 

/0/ THE LAW OF THE DISTRICT OF COLUMBIA IS (1) THE PRINCIPLES AND
MAXIMS OF EQUITY AS THEY EXISTED IN ENGLAND AND IN THE COLONIES IN
1776; (2) THE COMMON LAW OF ENGLAND AND THE ACTS OF PARLIAMENT WHICH
WERE IN EFFECT IN THE COLONIES IN 1776 (AND WHICH WERE NOT LOCALLY
INAPPLICABLE); (3) THE LAWS OF VIRGINIA AND MARYLAND AS THEY EXISTED ON
FEBRUARY 27, 1801 (2 STAT. 103); (4) THE ACTS OF THE LEGISLATIVE
ASSEMBLY CREATED BY THE ACT OF FEBRUARY 21, 1871 (16 STAT. 419); (5)
ALL ACTS OF CONGRESS INAPPLICABLE TO THE DISTRICT.  SEE DISTRICT OF
COLUMBIA CODE (1940 ED.), TIT. 1-24, P. IX ET SEQ.; COMP. STAT. D.C.
1887-1889, PP. V-VI. 

JEFFREY L. NAGIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE ALLEN E. SUSMAN AND RALPH S. CUNNINGHAM, JR. 

RUSSELL W. CUNNINGHAM ARGUED THE CAUSE AND FILED A BREIF FOR
RESPONDENT WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION.  MANUEL J.
DAVIS ARGUED THE CAUSE FOR RESPONDENT D.C. TRANSIT SYSTEM, INC.  WITH
HIM ON THE BRIEF WAS SAMUEL M. LANGERMAN. 

ASSISTANT ATTORNEY GENERAL MARTZ ARGUED THE CAUSE FOR THE UNITED
STATES, AS AMICUS CURIAE, URGING REVERSAL.  WITH HIM ON THE BRIEF WERE
SOLICITOR GENERAL GRISWOLD, FRANCIS BEYTAGH, JR., S. BILLINGSLEY HILL,
AND THOMAS L. MCKEVITT. 
..END :















U.S. V. PHOSPHATE EXPORT ASSN., 393 U.S. 199 


       UNITED STATES V. CONCENTRATED PHOSPHATE EXPORT ASSN., INC.,

           ET AL.

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

        NO. 29.  ARGUED OCTOBER 24, 1968.-- DECIDED NOVEMBER 25,

           1968. 


THE GOVERNMENT FILED A CIVIL ANTITRUST ACTION AGAINST APPELLEE
ASSOCIATION AND ITS MEMBER FIRMS CHARGING VIOLATIONS OF SEC. 1 OF THE
SHERMAN ACT WITH REGARD TO 11 SALES BY THE ASSOCIATION OF CONCENTRATED
PHOSPHATE TO THE REPUBLIC OF KOREA UNDER THE UNITED STATES FOREIGN AID
PROGRAM.  IN TWO CASES THE GOVERNMENT ITSELF LET THE CONTRACTS AND THE
REMAINING NINE WERE LET BY AN AGENCY OF THE KOREAN GOVERNMENT.  THE
AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) RETAINED EFFECTIVE CONTROL
OVER THE TRANSACTIONS, FROM APPROVING THE PROCUREMENT, THROUGH THE
FINANCING THEREOF BY THE UNITED STATES, TO THE SHIPPING.  THE TRIAL
COURT UPHELD APPELLEES' CONTENTION THAT THEY WERE EXEMPT FROM ANTITRUST
LIABILITY UNDER SEC. 2 OF THE WEBB-POMERENE ACT AS ACTS "DONE IN THE
COURSE OF EXPORT TRADE."  APPELLEE ASSOCIATION HAS SINCE DISSOLVED
ITSELF, ALLEGING THAT A RECENT AID REGULATION HAS MADE CONTINUED
OPERATION UNECONOMICAL.  HELD: 

1.  THE CASE IS NOT MOOT.  PP. 202-204. 

(A) THE GOVERNMENT SOUGHT RELIEF NOT ONLY AGAINST THE ASSOCIATION
BUT ALSO AGAINST ITS MEMBERS.  PP. 202-203. 

(B) THE AID REGULATION DOES NOT APPLY TO ALL CONTRACTS ON WHICH THE
FORMER MEMBERS OF THE ASSOCIATION MIGHT BID.  P. 203. 

(C) APPELLEES' STATEMENT THAT IT WOULD BE UNECONOMICAL TO ENGAGE IN
FURTHER JOINT OPERATIONS, STANDING ALONE, DOES NOT SATISFY THE
STRINGENT TEST FOR MOOTNESS; BUT APPELLEES MAY SHOW ON REMAND THAT THE
LIKELIHOOD OF FURTHER VIOLATIONS IS SUFFICIENTLY REMOTE TO MAKE
INJUNCTIVE RELIEF UNNECESSARY.  PP. 203-204. 

2.  THE ANTITRUST EXEMPTION OF THE WEBB-POMERENE ACT, WHICH WAS
ENACTED TO "EXTEND OUR FOREIGN TRADE" WITHOUT SIGNIFICANTLY INJURING
AMERICAN CONSUMERS, DOES NOT INSULATE TRANSACTIONS INITIATED,
CONTROLLED, AND FINANCED BY THE UNITED STATES GOVERNMENT, MERELY
BECAUSE A FOREIGN GOVERNMENT IS THE NOMINAL "PURCHASER."  PP. 206-210. 

(A) THE ECONOMIC REALITY OF THE TRANSACTIONS SHOWS THAT AMERICAN
PARTICIPATION WAS OVERWHELMINGLY DOMINANT, THE FOREIGN ELEMENTS WERE
COMPARATIVELY INSIGNIFICANT, AND THE BURDEN OF NONCOMPETITIVE PRICING
FELL, NOT ON THE FOREIGN PURCHASER, BUT ON THE AMERICAN TAXPAYER; AND
IT STRETCHES NEITHER THE LANGUAGE NOR THE PURPOSE OF THE ACT TO
DETERMINE THAT SUCH SALES ARE NOT "EXPORTS."  PP. 208-209. 

(B) ON THE CONTRACTS INVOLVED HERE THE WORLD'S MAJOR TRADING NATIONS
WERE INELIGIBLE TO COMPETE AS PROCUREMENT WAS LIMITED ESSENTIALLY TO
THE UNITED STATES AND THE UNDERDEVELOPED COUNTRIES, SO THAT THE MAJOR
IMPACT OF PERMITTING THE COMBINATION APPELLEES DESIRE WOULD BE, NOT TO
ENCOURAGE EXPORTS, BUT TO DEPRIVE AMERICANS OF THE MAIN BENEFITS OF
COMPETITION AMONG AMERICAN FIRMS.  P. 209. 

273 F.SUPP.  263, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

INVOLVED IN THIS CASE ARE 11 SALES OF CONCENTRATED PHOSPHATE MADE
BETWEEN 1961 AND 1966 BY APPELLEE ASSOCIATION.  THE PHOSPHATE WAS
SUPPLIED BY THE ASSOCIATION'S MEMBERS, /1/  WHICH ARE ALL PRODUCERS OF
FERTILIZER, AND WAS THEN SHIPPED TO THE REPUBLIC OF KOREA UNDER THE
UNITED STATES FOREIGN AID PROGRAM.  THE GOVERNMENT, IN A CIVIL
ANTITRUST COMPLAINT FILED ON DECEMBER 21, 1964, CONTENDED THAT THE
CONCERTED ACTIVITIES OF THE ASSOCIATION AND ITS MEMBERS IN REGARD TO
THESE 11 SALES VIOLATED SEC. 1 OF THE SHERMAN ACT, 26 STAT. 209 (1890),
AS AMENDED, 15 U.S.C. 1.  APPELLEES DEFENDED ON THE GROUND, INTER ALIA,
THAT THEIR ACTIVITIES WERE EXEMPTED FROM ANTITRUST LIABILITY BY SEC. 2
OF THE WEBB-POMERENE ACT, 40 STAT. 517 (1918), 15 U.S.C. 62, /2/  AS
"ACTS) DONE IN THE COURSE OF EXPORT TRADE."  THE TRIAL COURT HELD THAT
THE WEBB-POMERENE ACT DID IMMUNIZE APPELLEES' CONDUCT, 273 F.SUPP.  263
(1967), AND DISMISSED THE COMPLAINT.  THE GOVERNMENT PERFECTED A DIRECT
APPEAL TO THIS COURT UNDER THE EXPEDITING ACT, 32 STAT. 823 (1903), AS
AMENDED, 15 U.S.C. 29.  PROBABLE JURISDICTION WAS NOTED, 390 U.S. 1001
(1968). 

I. 

WE ARE MET AT THE OUTSET WITH APPELLEES' CONTENTION THAT THIS CASE
IS NOW MOOT.  APPELLEES' ARGUMENT RESTS ON TWO EVENTS WHICH OCCURRED
AFTER THE CASE HAD BEEN SUBMITTED TO THE DISTRICT COURT.  ON JANUARY 1,
1967, THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), THE STATE
DEPARTMENT AGENCY IN CHARGE OF THE FOREIGN AID PROGRAM, AMENDED ITS
REGULATIONS TO PRECLUDE WEBB-POMERENE ASSOCIATIONS FROM BIDDING ON
CERTAIN PROCUREMENT CONTRACTS WHENEVER PROCUREMENT WAS LIMITED TO
UNITED STATES SUPPLIERS.  /3/  ACCORDING TO APPELLEES, THIS NEW
REGULATION MADE IT UNECOMONICAL FOR THE ASSOCIATION TO CONTINUE IN
OPERATION, /4/  SINCE A LARGE PROPORTION OF AID-FINANCED PROCUREMENT IS
LIMITED TO AMERICAN SOURCES.  /5/  ACCORDINGLY, ON DECEMBER 28, 1967,
APPELLEE ASSOCIATION DISSOLVED ITSELF.  /6/  THE NEW REGULATION AND THE
DISSOLUTION, WE ARE TOLD, MOOT THIS CASE. 

TWO FACTORS MAKE THIS ARGUMENT UNTENABLE.  FIRST OF ALL, THE
DISSOLVED ASSOCIATION WAS NOT THE ONLY DEFENDANT IN THIS CASE.  THE
GOVERNMENT SOUGHT INNUNCTIVE RELIEF AGAINST THE ASSOCIATION'S MEMBERS
AS WELL; THEY WERE TO BE PROHIBITED FROM FORMING ANY NEW EXPORT
ASSOCIATIONS WITHOUT COURT APPROVAL AND FROM CONTINUING IN EFFECT ANY
PRICES JOINTLY AGREED UPON.  THEREFORE, EVEN IF DISSOLUTION WOULD HAVE
MADE IT IMPOSSIBLE TO FRAME EFFECTIVE RELIEF WERE THE ASSOCIATION THE
ONLY PARTY, HERE THERE IS NO SUCH DIFFICULTY.  SECONDLY, THE NEW AID
REGULATION DOES NOT APPLY TO ALL CONTRACTS ON WHICH THE FORMER MEMBERS
OF THE ASSOCIATION MIGHT BID.  WHENEVER FOREIGN BIDDERS ARE ELIGIBLE,
AID STILL PERMITS AMERICAN WEBB-POMERENE ASSOCIATIONS TO COMPLETE.  IN
FACT, FOREIGN BIDDERS WERE ELIGIBLE IN ALL 11 OF THE TRANSACTIONS WHICH
GAVE RISE TO THIS SUIT.  THEREFORE, HOWEVER MUCH OF THE NEW REGULATION
MAY REDUCE THE PRACTICAL IMPORTANCE OF THIS CASE, IT DOES NOT
COMPLETELY REMOVE THE CONTROVERSY.  ABSENT THE RELIEF PRAYED FOR,
APPELLEES WOULD BE FREE TO ACT IN CONCERT IN CERTAIN SITUATIONS WHERE
THE GOVERNMENT CONTENDS THEY MUST COMPETE. 

THE TEST FOR MOOTNESS IN CASES SUCH AS THIS IS A STRINGENT ONE. 
MERE VOLUNTARY CESSATION OF ALLEGEDLY ILLEGAL CONDUCT DOES NOT MOOT A
CASE; IF IT DID, THE COURTS WOULD BE COMPELLED TO LEAVE "(THE DEFENDANT
. . . FREE TO RETURN TO HIS OLD WAYS."  UNITED STATES V. W. T. GRANT
CO., 345 U.S. 629, 632 (1953); SEE, E.G., UNITED STATES V. TRANS
MISSOURI FREIGHT ASSN., 166 U.S. 290 (1897).  A CASE MIGHT BECOME MOOT
IF SUBSEQUENT EVENTS MADE IT ABSOLUTELY CLEAR THAT THE ALLEGEDLY
WRONGFUL BEHAVIOR COULD NOT REASONABLY BE EXPECTED TO RECUR.  BUT HERE
WE HAVE ONLY APPELLEES' OWN STATEMENT, STANDING ALONE, CANNOT SUFFICE
TO SATISFY THE HEAVY BURDEN OF PERSUASION WHICH WE HAVE HELD RESTS UPON
THOSE IN APPELLEES' SHOES.  UNITED STATES V. W. T. GRANT CO., 345
U.S.,AT 633.  OF COURSE IT IS STILL OPEN TO APPELLEES TO SHOW, ON
REMAND, THAT THE LIKELIHOOD OF FURTHER VIOLATIONS IS SUFFICIENTLY
REMOTE TO MAKE INJUNCTIVE RELIEF UNNECESSARY.  ID., AT 633-636.  THIS
IS A MATTER FOR THE TRIAL JUDGE.  BUT THIS CASE IS NOT TECHNICALLY
MOOT, AN APPEAL HAS BEEN PROPERLY TAKEN, AND WE HAVE NO CHOICE BUT TO
DECIDE IT.

        II. 

THE 11 TRANSACTIONS INVOLVED IN THIS CASE WERE NOT SIMPLE CASH
PURCHASES BY THE REPUBLIC OF KOREA.  /7/  NOT ONLY WERE THEY FINANCED
BY THE UNITED STATES GOVERNMENT; AID RETAINED EFFECTIVE CONTROL OVER
THEM AT EVERY STAGE. 

THE TRANSACTIONS INVOLVED WERE CONTROLLED BY AN IMPRESSIVE NETWORK
OF INTERNATIONAL TREATIES AND AGREEMENTS, AS WELL AS BY AMERICAN
STATUTES, REGULATIONS, AND ADMINISTRATIVE PROCEDURES.  THE PROCUREMENT
PROCESS, AS REVEALED BY THE STIPULATED RECORD, WAS RATHER INVOLVED.  IT
BEGAN WHEN FUNDS WERE APPROPRIATED BY CONGRESS.  THOSE FUNDS WERE
ALLOCATED TO VARIOUS DEVELOPMENT PROGRAMS BY AID, IN ACCORDANCE WITH
THE PROVISIONS OF THE APPLICABLE STATUTES AND AID'S ASSESSMENTS OF ITS
PRIORITIES.  THE MONEY ALLOCATED TO KOREA BY THIS PROCESS WAS NOT
SIMPLY SHIPPED TO SEOUL, TO BE USED AS KOREA WISHED.  IN FACT, MOST OF
IT NEVER LEFT THIS COUNTRY.  IN ACCORDANCE WITH A SERIES OF AGREEMENTS,
KOREA WAS AUTHORIZED TO REQUEST THAT THE UNITED STATES FINANCE
PURCHASES OF CERTAIN "ELIGIBLE COMMODITIES."  /8/  A RATHER COMPLICATED
"PROCUREMENT AUTHORIZATION APPLICATION" WAS THEN PREPARED ON AN AID
FORM FOR KOREAN SIGNATURE.  THE APPLICATION SETS FORTH NOT ONLY THE
GOODS TO BE PURCHASED BUT ALSO RATHER DETAILED SPECIFICATIONS OF
QUALITY, DELIVERY PLANS, BIDDING PROCEDURES, AND A STATEMENT EXPLAINING
KOREA'S NEED FOR THE GOODS.  EVEN THOUGH AID OFFICIALS OBVIOUSLY MUST
HAVE PARTICIPATED IN DRAFTING THESE "REQUESTS," AID WAS IN NO WAY
OBLIGATED TO APPROVE THEM.  THE AGREEMENT WITH KOREA SPECIFICALLY
STATES THAT AID "MAY DECLINE TO FINANCE ANY SPECIFIC COMMODITY OR
SERVICE WHEN, IN ITS JUDGMENT, SUCH FINANCING WOULD BE INCONSISTENT
WITH THE PURPOSES OF THIS GRANT OR OF THE FOREIGN ASSISTANCE ACT OF
1961, AS AMENDED."  WHEN EACH TRANSACTION WAS APPROVED, A "PROCUREMENT
AUTHORIZATION" WAS ISSUED BY AID; IT WAS SPECIFICALLY MADE SUBJECT TO
DETAILED REGULATIONS WHICH SPECIFY THE PROCEDURES TO BE FOLLOWED IN
AWARDING ANY CONTRACTS.  /9/  IT ALSO CONTAINED AN AUTHORIZATION TO A
SPECIFIED AMERICAN BANK TO PAY FOR THE GOODS TO BE PROCURED. 

AFTER AID HAD IN THIS WAY CHOSEN WHAT GOODS WERE TO BE PURCHASED,
EITHER OF TWO METHODS OF PROCUREMENT WAS USED.  IN TWO CASES, THE
GOVERNMENT ITSELF LET THE CONTRACTS, THROUGH ITS GENERAL SERVICE
ADMINISTRATION.  IN THE OTHER NINE CASES, THE FORMAL ACT OF LETTING THE
CONTRACTS WAS PERFORMED BY THE OFFICE OF SUPPLY OF THE REPUBLIC OF
KOREA (SROK).  IN PERFORMING THIS TASK, THE KOREANS WERE SUBJECT TO
DETAILED REGULATION BY AID.  THE INVITATION FOR BIDS EVEN HAD TO BE
SUBMITTED TO AID SO THAT IT COULD BE CIRCULATED IN THIS COUNTRY.  ALL
DOCUMENTS HAD TO BE IN ENGLISH, AND CRITERIA FOR SELECTING THE WINNING
CONTRACTORS WERE CAREFULLY DEFINED IN ADVANCE.  AN ABSTRACT OF BIDS
RECEIVED AND A NOTICE NAMING THE CONTRACTOR SELECTED HAD TO BE SENT TO
WASHINGTON.  FINALLY, A LETTER OF CREDIT WAS ISSUED, THE SUPPLIER PAID,
AND THE PAYOR BANK REIMBURSED BY THE UNITED STATES TREASURY.  THE GOODS
WERE SHIPPED CONSIGNED TO OSROK, BUT AID-- AS A LAST PRECAUTION--
RESERVED THE RIGHT TO VEST TITLE IN ITSELF IF "SUCH ACTION IS NECESSARY
TO ASSURE COMPLIANCE WITH THE PROVISIONS OR PURPOSES OF ANY ACT OF
CONGRESS."  22 CFR 201.44 (1968). 

WE ARE ASKED TO DECIDE WHETHER TRANSACTIONS OF THIS SORT CONSTITUTE
"ACTS) DONE IN THE COURSE OF EXPORT TRADE," WITHIN THE MEANING OF THE
WEBB-POMERENE EXEMPTION FROM THE SHERMAN ACT.  /10/ ALTHOUGH THE WEBB
POMERENE ACT HAS BEEN ON THE STATUTE BOOKS FOR A HALF CENTURY, THIS IS
THE FIRST TIME THIS COURT HAS BEEN CALLED UPON TO INTERPRET THE MEANING
OF THE WORDS "EXPORT TRADE."  UPON A FULL CONSIDERATION OF THE
LANGUAGE, THE PURPOSE, AND THE LEGISLATIVE HISTORY OF THE STATUTE, WE
REVERSE THE JUDGMENT BELOW. 

        III. 

THE WEBB-POMERENE ACT WAS PASSED "TO AID AND ENCOURAGE OUR
MANUFACTURERS AND PRODUCERS TO EXTEND OUR FOREIGN TRADE."  H.R. REP.
NO. 1118, 64TH CONG., 1ST SESS., 1 (1916).  CONGRESS FELT THAT AMERICAN
FIRMS NEEDED THE POWER TO FORM JOINT EXPORT ASSOCIATION IN ORDER TO
COMPETE WITH FOREIGN CARTELS.  BUT WHILE CONGRESS WAS WILLING TO CREATE
AN EXEMPTION FROM THE ANTITRUST LAWS TO SERVE THIS NARROW PURPOSE, THE
EXEMPTION CREATED WAS CAREFULLY HEDGED IN TO AVOID SUBSTANTIAL INJURY
TO DOMESTIC INTERESTS.  CONGRESS EVIDENTLY MADE THE ECONOMIC JUDGMENT
THAT JOINT EXPORT ASSOCIATIONS COULD INCREASE AMERICAN FOREIGN TRADE
WITHOUT DEPRIVING AMERICAN CONSUMERS OF THE MAIN ADVANTAGES OF
COMPETITION. 

THIS READING OF THE ACT IS CONFIRMED BOTH BY ITS STRUCTURE AND ITS
LEGISLATIVE HISTORY.  THE ACT ITSELF CONTAINS A NUMBER OF PROVISOS
OBVIOUSLY DESIGNED TO PROTECT DOMESTIC INTERESTS FROM THE COMBINATIONS
CONGRESS WAS AUTHORIZING.  NO ACT DONE BY THE EXPORT ASSOCIATION COULD
BE "IN RESTRAINT OF TRADE WITHIN THE UNITED STATES," SEC. 2, 15 U.S.C.
62; THE WORDS "EXPORT TRADE" WERE TO EXCLUDE, AMONG OTHER THINGS,
"SELLING FOR CONSUMPTION . . . WITHIN THE UNITED STATES," SEC. 1, 15
U.S.C. 61; AND THE ASSOCIATION WAS FORBIDDEN TO ENTER INTO ANY
AGREEMENT "WHICH ARTIFICIALLY OR INTENTIONALLY ENHANCES OR DEPRESSES
PRICES WITHIN THE UNITED STATES . . . , OR WHICH SUBSTANTIALLY LESSENS
COMPETITION WITHIN THE UNITED STATES OR OTHERWISE RESTRAINS TRADE
THEREIN," SEC. 2, 15 U.S.C. 62. 

THE LEGISLATIVE HISTORY IS EVEN MORE EXPLICIT.  DURING THE HEARINGS
ON THE BILL, ONE CONGRESSMAN, CHARLES C. CARLIN OF VIRGINIA, STATED
CLEARLY WHAT WAS LATER TO BE ONE OF THE DOMINANT THEMES OF THE FLOOR
DEBATE.  IN A QUESTION ADDRESSED TO THE CHAIRMAN OF THE FEDERAL TRADE
COMMISSION, WHO WAS TESTIFYING IN SUPPORT OF THE BILL, HE SAID: 

"I AM FRANK TO SAY THAT PERSONALLY I HAVE NO SYMPATHY WITH WHAT A
FOREIGNER AYS FOR OUR PRODUCTS; I WOULD LIKE TO SEE THE AMERICAN
MANUFACTURERS GET THE LARGEST PRICE POSSIBLE, BUT IF BY INDIRECTION WE
ARE GOING TO SET UP A SYSTEM WHICH IS GOING TO FIX A HIGHER PRICE
EVENTUALLY AT HOME, THROUGH A COMBINATION AS SUGGESTED IN THIS BILL, I
THINK YOU CAN VERY WELL SEE THAT SUCH A SYSTEM IS A VERY DANGEROUS
ONE."  HEARINGS BEFORE THE HOUSE COMMITTEEE ON THE JUDICIARY ON H.R.
16707, 64TH CONG., 1ST SESS., 7 (1916).  THE SAME THEME WAS REITERATED
ON THE FLOOR BY THE ACT'S TWO MAIN SPONSORS.  SENATOR POMERENE SAID
BLUNTLY, "(WE HAVE NOT REACHED THAT HIGH PLANE OF BUSINESS MORALS WHICH
WILL PERMIT US TO EXTEND THE SAME PRIVILEGES TO THE PEOPLES OF THE
EARTH OUTSIDE OF THE UNITED STATES THAT WE EXTENDED TO THOSE WITHIN THE
UNITED STATES."  55 CONG.REC.  2787 (1917).  AND CONGRESSMAN WEBB
DECLARED, "I WOULD BE WILLING THAT THERE SHOULD BE A COMBINATION
BETWEEN ANYBODY OR ANYTHING FOR THE PURPOSE OF CAPTURING THE TRADE OF
THE WORLD, IF THEY DO NOT PUNISH THE PEOPLE OF THE UNITED STATES IN
DOING IT."  55 CONG.REC.  3580 (1917). 

IN THIS ATMOSPHERE, THE ACT WAS PASSED.  IT IS CLEAR WHAT CONGRESS
WAS DOING; IT THOUGHT IT COULD INCREASE AMERICAN EXPORTS BY DEPRIVING
FOREIGNERS OF THE BENEFITS OF COMPETITION AMONG AMERICAN FIRMS, WITHOUT
IN ANY SIGNIFICANT WAY INJURING AMERICAN CONSUMERS.  CF. UNITED STATES
ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S. 196, 211 (1945).  THE
VALIDITY OF THIS ECONOMIC JUDGMENT IS NOT FOR US TO QUESTION, BUT IT IS
QUITE RELEVANT IN INTERPRETING THE LANGUAGE CONGRESS CHOSE.  THE
QUESTION BEFORE US IS WHETHER CONGRESS MEANT ITS EXEMPTION TO INSULATE
TRANSACTIONS INITIATED, CONTROLLED, AND FINANCED BY THE AMERICAN
GOVERNMENT, JUST BECAUSE A FOREIGN GOVERNMENT IS THE NOMINAL
"PURCHASER."  WE THINK IT DID NOT. 

IN INTERPRETING THE ANTITRUST LAWS, WE ARE NOT BOUND BY FORMAL
CONCEPTIONS OF CONTRACT LAW.  SIMPSON V. UNITED OIL CO., 377 U.S. 13
(1964).  WE MUST LOOK AT THE ECONOMIC REALITY OF THE RELEVANT
TRANSACTIONS.  HERE, ALTHOUGH THE FERTILIZER SHIPMENTS WERE CONSIGNED
TO KOREA AND ALTHOUGH IN MOST CASES KOREA FORMALLY LET THE CONTRACTS,
AMERICAN PARTICIPATION WAS THE OVERWHELMINGLY DOMINANT FEATURE.  THE
BURDEN OF NONCOMPETITIVE PRICING FELL, NOT ON ANY FOREIGN PURCHASER,
BUT ON THE AMERICAN TAXPAYER.  THE UNITED STATES WAS, IN ESSENCE,
FURNISHING FERTILIZER TO KOREA.  AID SELECTED THE COMMODITY, DETERMINED
THE AMOUNT TO BE PURCHASED, CONTROLLED THE CONTRACTING PROCESS, AND
PAID THE BILL.  THE FOREIGN ELEMENTS IN THE TRANSACTIONS WERE, BY
COMPARISON, INSIGINIFICANT.  IT STRETCHES NEITHER THE LANGUAGE NOR THE
PURPOSE OF THE ACT TO DETERMINE THAT SUCH SALES ARE NOT "EXPORTS." 

APPELLEES CONTEND THAT A CONTRARY RESULT SHOULD BE REACHED BECAUSE
THEY WERE COMPETING FOR CONTRACTS WITH FOREIGN SUPPLIERS.  EVIDENTLY,
IT IS THEIR CONTENTION THAT THEY THEREFORE FALL WITHIN THE CLASS WHICH
CONGRESS INTENDED TO ALLOW TO FORM EXPORT ASSOCIATIONS.  BUT AID HAS
ALREADY GIVEN AMERICAN SUPPLIERS GREAT COMPETITIVE ADVANTAGES IN THEIR
BATTLE WITH FOREIGN FIRMS.  THE GOVERNING STATUTE REQUIRES A PREFERENCE
FOR AMERICAN PROCUREMENT.  FOREIGN ASSISTANCE ACT OF 1961, SEC. 604, 75
STAT. 439, 22 U.S.C. 2354.  ON NONE OF THE CONTRACTS INVOLVED HERE WERE
ANY OF THE MAJOR TRADING NATIONS OF THE WORLD ELIGIBLE TO COMPETE;
PROCUREMENT WAS LIMITED ESSENTIALLY TO THE UNITED STATES AND THE
UNDERDEVELOPED COUNTRIES.  TO SAY THAT AMERICAN PRODUCERS NEED AN
ADDITIONAL STIMULUS TO BE ABLE TO COMPETE STRAINS CREDULITY.  THE MAJOR
IMPACT OF ALLOWING THE COMBINATION APPELLEES DESIRE WOULD NOT BE TO
ENCOURAGE AMERICAN EXPORTS; IT WOULD BE TO PLACE THE BURDEN OF
NONCOMPETITIVE PRICING ON THE SHOULDERS OF THE AMERICAN TAXPAYER.  BUT
WHATEVER THE IMPACT ON EXPORTS MIGHT BE, IT IS CLEAR THAT THE FRAMERS
OF THE WEBB-POMERENE ACT DID NOT INTEND THAT AMERICANS SHOULD BE
DEPRIVED OF THE MAIN BENEFITS OF COMPETITION AMONG AMERICAN FIRMS. 
/11/  SINCE IN ALL RELEVANT ASPECTS THE TRANSACTIONS INVOLVED HERE WERE
AMERICAN, NOT KOREAN, WE HOLD THAT THEY ARE NOT "EXPORT TRADE" WITHIN
THE MEANING OF THE WEBB-POMERENE ACT.  ON REMAND, THE DISTRICT COURT
MAY DECIDE THE OTHER ISSUES RELEVANT TO A RESOLUTION OF THE
CONTROVERSY. 

              REVERSED. 

/1/  APPELLEE-MEMBERS ARE AMERICAN CYANAMID CO., W. R. CRACE & CO.,
INTERNATIONAL MINERALS & CHEMICAL CORP., TENNESSEE CORP., AND MOBIL OIL
CORP. NOT ALL OF THESE COMPANIES WERE MEMBERS DURING THE ENTIRE PERIOD
INVOLVED IN THIS CASE; THE ASSOCIATION WAS DISSOLVED ON DECEMBER 28,
1967. 

/2/  "NOTHING CONTAINED IN SECTIONS 1-7 OF THIS TITLE SHALL BE
CONSTRUED AS DECLARING TO BE ILLEGAL AN ASSOCIATION ENTERED INTO FOR
THE SOLE PURPOSE OF ENGAGING IN EXPORT TRADE AND ACTUALLY ENGAGED
SOLELY IN SUCH EXPORT TRADE BY SUCH ASSOCIATION, PROVIDED SUCH
ASSOCIATION, AGREEMENT, OR ACT IS NOT IN RESTRAINT OF TRADE WITHIN THE
UNITED STATES, AND IS NOT IN RESTRAINT OF THE EXPORT TRADE OF ANY
DOMESTIC COMPETITOR OF SUCH ASSOCIATION:  PROVIDED, THAT SUCH
ASSOCIATION AGREEMENT, UNDERSTANDING, OR CONSPIRACY, OR DO ANY ACT
WHICH ARTIFICIALLY OR INTENTIONALLY ENHANCES OR DEPRESSES PRICES WITHIN
THE UNITED STATES OF COMMODITIES OF THE CLASS EXPORTED BY SUCH
ASSOCIATION, OR WHICH SUBSTANTIALLY LESSENS COMPETITION WITHIN THE
UNITED STATES OR OTHERWISE RESTRAINS TRADE THEREIN." 

"EXPORT TRADE" AS "SOLELY TRADE OR COMMERCE IN GOODS, WARES, OR
MERCHANDISE EXPORTED, OR IN THE COURSE OF BEING EXPORTED FROM THE
UNITED STATES OR ANY TERRITORY THEREOF TO ANY FOREIGN NATION; BUT THE
WORDS 'EXPORT TRADE' SHALL NOT BE DEEMED TO INCLUDE THE PRODUCTION,
MANUFACTURE, OR SELLING FOR CONSUMPTION OR FOR RESALE, WITHIN THE
UNITED STATES OR ANY TERRITORY THEREOF, OF SUCH GOODS, WARES, OR
MERCHANDISE, OR ANY ACT IN THE COURSE OF USCH PRODUCTION, MANUFACTURE,
OR SELLING FOR CONSUMPTION OR FOR RESALE." 

/3/  31 FED.REG.  16693 (1966), CODIFIED AS 22 CFR 201.01(V),
201.52(A)(7), APPENDIX D (1968).  THE AMENDED REGULATION APPLIES ONLY
TO CERTAIN SPECIFIED COMMODITIES. 

/4/  MOTION TO AFFIRM OR DISMISS 5, 14-15. 

/5/  SEE AID, OPERATIONS REPORT, FISCAL YEAR 1967, P. 74.  THE VERY
LARGE PERCENTAGE OF FOREIGN AID PROCUREMENT ACTUALLY COMING FROM
AMERICAN SOURCES EXCEEDS THAT REQUIRED BY REGULATION. 

/6/  APPELLEES CONTEND THAT ECONOMIC FACTORS DICTATED THE
DISSOLUTION, SUPRA, N. 4, AND THE GOVERNMENT DOES NOT ARGUE THAT THE
DISSOLUTION WAS RELATED TO THE FACT THAT A NOTICE OF APPEAL IN THIS
CASE WAS FILED ON NOVEMBER 9, 1967. 

/7/  THE GOVERNMENT EVIDENTLY DOES NOT CONTEST THE "EXPORT" STATUS
OF TWO FERTILIZER SALES TO KOREA MADE IN 1962.  ONE WAS PAID FOR BY
KOREA'S OWN FOREIGN EXCHANGE FUNDS; THE OTHER WAS FINANCED OUT OF A
SPECIAL STABILIZATION FUND GRANTED BY THE UNITED STATES.  THE USE OF
THIS LATTER FUND WAS NOT AS FULLY CONTROLLED AS WERE THE GRANTS WHICH
FINANCED THE 11 PURCHASES INVOLVED HERE. 

/8/  THIS PARTICULAR LIMITATION TO A SPECIFIC LIST OF COMMODITIES IS
CONTAINED IN THE RECORD IN A PROGRAM ASSISTANCE GRANT AGREEMENT, DATED
NOVEMBER 29, 1965.  APPENDIX 108, 116.  ALTHOUGH THIS AGREEMENT COULD
NOT HAVE APPLIED TO THE EARLIER TRANSACTIONS INVOLVED HERE, THE
STIPULATED RECORD CONTAINS ONLY EXAMPLES-- AND NOT A COMPLETE
COMPILATION-- OF ALL THE DOCUMENTS INVOLVED.  IN ANY CASE, EARLIER
AGREEMENTS WHICH ARE INCLUDED IN THE RECORD CONTAIN LIMITATIONS WHICH
GIVE THE GOVERNMENT EQUIVALENT POWERS.  SEE, E.G., APPENDIX 81. 

/9/  THESE REGULATIONS ARE COLLECTED IN 22 CFR 201 (1968). 

/10/  THE GOVERNMENT RAISES NO QUESTIONS UNDER ANY OF THE VARIOUS
PROVISOS INCLUDED IN THE WEBB-POMERENE ACT.  ACCORDINGLY, WE INTIMATE
NO OPINION ABOUT THEIR SCOPE. 

/11/  THERE WAS A BRIEF MENTION DURING THE CONGRESSIONAL DEBATES OF
THE EXISTENCE OF AMERICAN LOANS TO EUROPEAN NATIONS WHOSE PURCHASING
POWER MIGHT BE REDUCED BY HIGHER AMERICAN EXPORT PRICES.  SEE 55
CONG.REC.  2789 (1917).  SUCH AN ISOLATED STATEMENT COULD DETERMINE THE
MEANING OF A STATUTE.  BUT IN ANY CASE, IT IS CLEAR THAT AMERICA'S
WORLD WAR I LOANS BEAR LITTLE IF ANY RESEMBLANCE TO THE MODERN FOREIGN
AID PROGRAM.  NOT ONLY WAS IT EXPECTED THAT THEY WOULD BE REPAID, BUT
ALSO THE LOANS WERE NOT MADE SUBJECT TO THE DETAILED AMERICAN
ADMINISTRATIVE CONTROL TYPICAL OF TODAY'S FOREIGN AID PROGRAM. 

MR. JUSTICE HARLAN TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THE MAJORITY HOLDS TODAY THAT CONCENTRATED PHOSPHATE SHIPPED FROM AN
AMERICAN FIRM IN FLORIDA TO THE REPUBLIC OF KOREA, WHICH HAS ITSELF
SOLICITED BIDS ON THE WORLD MARKET, /1/  ARE NOT "EXPORTS" WITHIN THE
MEANING OF THE WEBB-POMERENE ACT, SEC. 1, 40 STAT. 516 (1918), 15
U.S.C. 61.  THE UNITED STATES SUPPLIED THE FUNDS WHICH KOREA USED TO
PAY FOR THE PURCHASES, AND RETAINED LIMITED POWER TO CONTROL THEIR
EXPENDITURE.  KOREA WAS NOT OBLIGED TO REPAY THE FUNDS TO THE UNITED
STATES DIRECTLY, BUT IT WAS REQUIRED TO SET ASIDE PROCEEDS OF RESALE OF
THE PHOSPHATE AS "COUNTERPART FUNDS" TO BE SPENT IN WAYS PRESCRIBED BY
THE UNITED STATES.  /2/  THIS DECISION CONFORMS NEITHER TO THE PLAIN
MEANING OF THE WORD "EXPORTS" NOR TO THE UNDERLYING PURPOSES OF THE
WEBB-POMERENE ACT. 

THE STATUTE DEFINES "EXPORT TRADE" AS TRADE IN GOODS "EXPORTED, OR
IN THE COURSE OF BEING EXPORTED FROM THE UNITED STATES."  SEC. 1, 15
U.S.C. 61.  IN THIS CASE, MORE THAN 800,000 TONS OF CONCENTRATED
PHOSPHATE WERE SHIPPED DIRECTLY FROM THE ASSOCIATION IN FLORIDA TO
KOREA.  IN ANY ORDINARY SENSE, THESE "GOODS" WERE "EXPORTED FROM THE
UNITED STATES."  EVEN THE AID REGULATIONS REFER TO RECEIVING COUNTRIES
AS "IMPORTERS" AND TO THESE TRANSACTIONS AS "EXPORTS."  E.G., 22 CFR
201.42 (1968).  /3/  AND THE DISTRICT COURT FOUND THAT AID ENCOURAGED,
OR AT LEAST TOLERATED, BIDDING BY WEBB-POMERENE ASSOCIATIONS IN THESE
TRANSACTIONS.  NOR DOES THE EXCLUSION FROM THE DEFINITION OF EXPORTS OF
GOODS SOLD "FOR CONSUMPTION . . . WITHIN THE UNITED STATES," SEC. 1, 15
U.S.C. 61, DISCUSSED BY THE MAJORITY, HAVE ANY APPLICATION TO THIS
CASE.  THE PARTIES HAVE SO STIPULATED, SINCE THE PHOSPHATE WAS
OBVIOUSLY TO BE CONSUMED IN KOREA.  AND THERE IS NO CONTENTION HERE
THAT PURELY DOMESTIC TRADE WAS "RESTRAINED" IN ANY WAY, OR THAT PRICES
IN IT WERE "ENHANCED" OR "DEPRESSED."  /4/  GIVEN THE CLARITY OF THE
STATUTE, THERE IS NO NEED TO RESORT TO LEGISLATIVE HISTORY.  E.G.,
UNEXCELLED CHEMICAL CORP. V. UNITED STATES, 345 U.S. 59, 64 (1953). 

BUT EVEN THE LEGISLATIVE HISTORY LENDS NO SUPPORT TO THE MAJORITY,
AND INDEED LEADS TO A CONTRARY CONCLUSION.  THE MAJORITY ASSERTS THAT
CONGRESS THOUGHT IT COULD INCREASE AMERICAN EXPORTS BY ENDING
COMPETITION FOR FOREIGN SHIPMENTS AMONG AMERICAN FIRMS WITHOUT
IMPAIRING DOMESTIC COMPETITION.  THAT IS CORRECT.  CONGRESS RECOGNIZED
THAT TRADE IN FOREIGN NATIONS IS NOT RINGED ABOUT WITH THE ANTITRUST
RESTRICTIONS WHICH KEEP DOMESTIC INDUSTRY COMPETITIVE.  CONGRESS FOUND
FOREIGN TRUSTS TO HAVE SUBSTANTIAL ADVANTAGES OVER THEIR AMERICAN
COMPETITORS.  THEY CAN OFFER TO EXTEND CREDIT AND FILL LARGE ORDERS
WHICH NO SINGLE AMERICAN FIRM COULD FILL; THEY CAN MAINTAIN STAFFS TO
KEEP IN TOUCH WITH FOREIGN DEMAND MORE CHEAPLY THAN ANY SINGLE AMERICAN
SELLER; AND THEIR ADVERTISING AND DISTRIBUTION COSTS ARE GENERALLY
LOWER THAN THOS OF SEPARATE AMERICAN FIRMS.  /5/  HAVING MADE THES
FINDINGS, CONGRESS CONCLUDED THAT AMERICAN FIRMS SHOULD BE ALLOWED TO
COMBINE TO ACHIEVE LOWER COSTS, LOWER PRICES, AND MORE COMPREHENSIVE
AND EFFECTIVE SERVICE, IN ORDER TO BE ABLE TO COMPETE ON AN EQUAL
FOOTING FOR FOREIGN SHIPMENTS. 

IN A TRANSACTION SUCH AS THIS, WHERE AMERICAN GOODS COMPETE WITH
FOREIGN GOODS FOR FOREIGN CONSUMPTION, CONGRESS HAD NO OBJECTION TO THE
FORMATION OF AMERICAN ASSOCIATIONS TO ACHIEVE LOWER PRICES AND COMPETE
WITH FOREIGN SUPPLIERS.  THAT SUCH COMPETITION WAS INVOLVED HERE IS
GRAPHICALLY ILLUSTRATED BY THE FACT THAT IN MOST OF THE KOREAN
PURCHASES INVOLVED IN THIS CASE /6/  FOREIGN BIDDERS WERE SUCCESSFUL IN
CAPTURING AT LEAST PART OF THE MARKET, AND THE GOVERNMENT ADMITS THAT
FOREIGN COMPETITION WAS NEVER ABSENT.  IT WAS PRECISELY TO ENABLE
AMERICAN FIRMS TO MEET SUCH COMPETITION THAT THE WEBB-POMERENE ACT WAS
PASSED. 

MOREOVER, IT IS NO KINDNESS TO THE MAERICAN TAXPAYER TO CARVE OUT AN
EXCEPTION FORBIDDING THE FORMATION OF WEBB-POMERENE ASSOCIATIONS IN
THIS CASE, GIVEN THE ASSUMPTIONS ON WHICH THE ACT WAS PASSED.  CONGRESS
SPECIFICALLY DISCUSSED PHOSPHATE AS A COMMODITY WHERE AMERICAN
ASSOCIATIONS WERE NECESSARY IN ORDER TO ACHIEVE THE SAVINGS AND
ORGANIZATION WHICH WOULD ENABLE THEM TO COMPETE WITH FOREIGN CARTELS IN
PRICE AND SERVICE.  /7/  WITHOUT WEBB-POMERENE ASSOCIATIONS, CONGRESS
CONCLUDED THAT AMERICAN FIRMS COULD NOT UNDERBID THEIR FOREIGN
COMPETITORS.  EVEN IN THIS CASE, WITH THE ASSOCIATION BIDDING, FOREIGN
CARTELS CAPTURED 18% OF THE BUSINESS.  UNDER THE MAJORITY OPINION,
AMERICAN TAXPAYERS WOULD BE PAYING OUT MORE AMERICAN DOLLARS TO BUY
FROM FOREIGN CARTELS GOODS WHICH COULD HAVE BEEN OBTAINED MORE CHEAPLY
FROM AMERICAN ASSOCIATIONS EMPLOYING AMERICAN WORKERS. 

CONGRESS EXPLICITLY FOUND THAT WEBB-POMERENE ASSOCIATIONS WOULD LEAD
TO LOWER, NOT HIGHER, PRICES IN COMPETITION WITH FOREIGN SUPPLIERS.  IT
WAS ON THIS BASIS THAT JOINT EFFORTS BY AMERICAN COMPANIES IN THE
EXPORT TRADE WERE EXEMPTED FROM THE ANTITRUST LAWS.  THOSE CHARGED WITH
THE DUTY FAITHFULLY TO EXECUTE THE LAWS SHOULD HONOR THAT EXEMPTION,
NOT CHALLENGE IT WITH FACILE ASSERTIONS THAT THE ACT WAS
"CHAUVINISTIC."  CERTAINLY THIS COURT IS NOT EQUIPPED OR EMPOWERED TO
CHALLENGE EITHER THE EXEMPTION OR THE ASSUMPTIONS ON WHICH IT RESTS. 

TO CARVE OUT AN EXCEPTION FROM THE WORD "EXPORT" BASED ON THIS
COURT'S NOTIONS OF SOUND ECONOMIC POLICY IS TO CONTRADICT THE PLAIN
WORDS OF THE STATUTE AND THE CONGRESSIONAL JUDGMENT THAT AMERICAN
ASSOCIATIONS WERE NECESSARY TO LOWER PRICES AND COMBAT FOREIGN
COMPETITION.  IF SUCH AN EXCEPTION WERE EVER JUSTIFIED, IT WOULD BE IN
A CASE WHERE NOT ONLY ARE AMERICANS PAYING THE BILL, BUT ALSO FOREIGN
COMPETITION IS ABSENT.  THIS IS NOT SUCH A CASE. 

/1/  IN TWO OF THE 11 TRANSACTIONS CHALLENGED HERE, THEGENERAL
SERVICES ADMINISTRATION SOLICITED THE BIDS FOR KOREA, BUT NEITHER THE
GOVERNMENT NOR THE COURT FINDS THAT DISTINCTION SIGNIFICANT. 

/2/  THESE FUNDS WERE USED TO SUPPORT THE KOREAN AND AMERICAN
MILITARY ESTABLISHMENTS IN KOREA AND TO FINANCE PUBLIC WORKS.  THEY
WERE GENERALLY AVAILABLE TO THE UNITED STATES "AS REQUESTED." 

/3/  INDEED, EVEN GOVERNMENT STATISTICS RELATING TO BALANCE OF
PAYMENTS REFER TO SHIPMENTS SUCH AS THESE AS "EXPORTS."  E.G.,
DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF
THE UNITED STATES 1968, AT 669, 801; 15 CFR 30.1 ET SEQ. (1968). 

/4/  SEC. 2, 15 U.S.C. 62. 

/5/  SEE, E.G., S.REP.  NO. 1056, 64TH CONG., 2D SESS. (1917); H.R.
REP. NO. 1118, 64TH CONG., 1ST SESS. (1916); HEARINGS ON H.R. 17350
BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE, 64TH CONG., 2D
SESS., 44 (1917). 

/6/  THIRTEEN PHOSPHATE PURCHASES WERE MADE BY KOREA, OF WHICH THE
GOVERNMENT CHALLENGES ONLY THE 11 TO WHICH THE AID REGULATIONS APPLY. 
IN THOSE TRANSACTIONS ALONE, FOREIGN BIDDERS CAPTURED 18% OF THE
BUSINESS. 

/7/  56 CONG.REC.  110-111 (REMARKS OF SENATOR KELLOGG). 

DEPUTY ATTORNEY GENERAL CHRISTOPHER ARGUED THE CAUSE FOR THE UNITED
STATES.  ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT
ATTORNEY GENERAL ZIMMERMAN, LAWRENCE G. WALLACE, AND HOWARD E.
SHAPIOR. 

SAMUEL W. MURPHY, JR., ARGUED THE CAUSE FOR APPELLEES.  ON THE BRIEF
WERE MARCUS A. HOLLABAUGH AND ALAN S. WARD FOR CONCENTRATED PHOSPHATE
EXPORT ASSN., INC., MR. MURPHY AND ANDREW J. KILCARR FOR AMIERCAN
CYANAMID CO., LAWRENCE J. MCKAY AND JERROLD G. VAN CISE FOR W. R. GRACE
& CO., EDGAR E. BARTON FOR INTERNATIONAL MINERALS & CHEMICAL CORP.,
EDWARD F. HOWREY AND JOHN BODNER, JR., FOR MOBIL OIL CORP., ALFRED D.
BERMAN AND RANDOLPH GUGGENHEIMER, JR., FOR TENNESSEE CORP., APPELLEES. 

..END :




















AUSTIN V. WEBSTER, 393 U.S. 214 


       CITY OF AUSTIN V. WEBSTER. 

        APPEAL FROM THE SUPREME COURT OF TEXAS. 

        NO. 499.  DECIDED NOVEMBER 25, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITIONER FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

JAMES W. WILSON FOR APPELLANT. 
..END :












A.T. & S.F.R. CO. V. UNITED STATES, 393 U.S. 214 


       ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET AL. V. UNITED

           STATES ET AL

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF TEXAS. 

        NO. 520.  DECIDED NOVEMBER 25, 1968. 


287 F.SUPP.  354, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

S. R. BRITTINGHAM, JR., FOR ATCHISON, TOPEKA & SANTA FE RAILWAY CO.,
AND ALBERT E. JENNER, JR., THOMAS P. SULLIVAN, WILLAIM R. MCDOWELL,
THOMAS L. FARMER, AND THOMAS A. LOOSE FOR THE TEXAS & PACIFIC RAILWAY
CO. ET AL., APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL ZIMMERMAN,
HOWARD E. SHAPIRO, AND ROBERT W. GINNANE FOR THE UNITED STATES ET AL.,
AND RICHARD MAGUIRE AND GAVIN W. O'BRIEN FOR THE ERMIAN BASIN RAILROAD
CO., APPELLEES. 
..END :























ARTHUR V. VIRGINIA, 393 U.S. 215 


       ARTHUR V. VIRGINIA. 

        APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

        NO. 501.  DECIDED NOVEMBER 25, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITIONER FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

WM. ROSENBERGER, JR., FOR APPELLANT. 
..END :









COLLINS V. COMMISSIONER OF INTERNAL REVENUE, 393 U.S. 215 


       COLLINGS V. COMMISSIONER OF INTERNAL REVENUE. 

      ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT. 

      NO. 134.  DECIDED NOVEMBER 25, 1968. 


CERTIORARI GRANTED; 388 F.2D 353, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITIONER FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
CONSIDERATION IN LIGHT OF THE OPINION OF THE SUPREME COURT OF OKLAHOMA
IN COLLINS V. OKLAHOMA TAX COMM'N, 446 P.2D 290. 

DONALD P. MOYERS FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD ASSISTANT ATTORNEY GENERAL ROGOVIN,
JONATHAN S. COHEN, AND ROBERT J. CAMPBELL FOR RESPONDENT. 
..END :






GREEN V. TURNER, 393 U.S. 216 


       GREEN V. TURNER, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT. 

        NO. 88, MISC.  DECIDED NOVEMBER 25, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITIONER
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER CONSIDERATION IN
LIGHT OF GARRISON V. PATTERSON, 391 U.S. 464. 

PHIL L. HANSEN, ATTORNEY GENERAL OF UTAH, FOR RESPONDENT. 
..END :









BAYER V. UNITED STATES, 393 U.S. 216 


       FARBENFABRIKEN BAYER A.G. V. UNITED STATES. 

    APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

          DISTRICT OF COLUMBIA. 

        NO. 504.  DECIDED NOVEMBER 25, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

ALLEN F. MAULSBY, ARNOLD M. LERMAN, MAX O. TRUITT, JR., AND DANIEL
K. MAYERS FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :









STAMLER V. WILLIS, 393 U.S. 217 


       STAMLER ET AL. V. WILLIS ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS. 

        NO. 478.  DECIDED NOVEMBER 25, 1968.  /0/ 


287 F.SUPP.  734, APPEALS DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEALS ARE DISMISSED. 

/0/  TOGETHER WITH NO. 479, COHEN V. WILLIS ET AL., ALSO ON APPEAL
FROM THE SAME COURT. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGALS, AND MR. JUSTICE HARLAN ARE
OF THE OPINION THAT FURTHER CONSIDERATION OF THE QUESTION OF
JURISDICTION SHOULD BE POSTPONED TO THE HEARING OF THE CASES ON THE
MERITS AND THAT THE CASES SHOULD BE SET FOR ORAL ARGUMENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

ALBERT E. JENNER, JR., THOMAS P. SULLIVAN, AND ARTHUR KINOY FOR
APPELLANTS IN NO. 478.  MR. JENNER FOR APPELLANT IN NO. 479. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL YEAGLEY,
KEVIN T. MARONEY, AND LEE B. ANDERSON FOR APPELLEES IN BOTH CASES. 

BRIEFS OF AMICI CURIAE WERE FILED BY JACK G. DAY AND MELVIN L. WULF
FOR THE AMERICAN CIVIL LIBERTIES UNION, AND BY VERN COUNTRYMAN, ROBERT
F. DRINAN, CLARK BYSE, DAVID F. CAVERS, GEORGE T. FRAMPTON, AND IRA M.
HEYMAN FOR CERTAIN LAW SCHOOL DEANS AND PROFESSORS. 
..END :














CARROLL V. PRINCESS ANNE, 393 U.S. 175 


       CARROLL ET AL. V. PRESIDENT AND COMMISSIONERS OF PRINCESS

           ANNE ET AL.

        CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

        NO. 6.  ARGUED OCTOBER 21, 1968.-- DECIDED NOVEMBER 19,

           1968. 


PETITIONERS, MEMBERS OF THE "WHITE SUPREMACIST" NATIONAL STATES
RIGHTS PARTY, HELD A PUBLIC RALLY IN PRINCESS ANNE, MARYLAND, ON AUGUST
6, 1966, AT WHICH AGGRESSIVELY AND MILITANTLY RACIST SPEECHES WERE MADE
TO A CROWD OF BOTH WHITES AND NEGROES.  IT WAS ANNOUNCED THAT THE RALLY
WOULD BE RESUMED THE NEXT NIGHT, AUGUST 7.  THAT DAY THE RESPONDENTS,
LOCAL OFFICIALS, OBTAINED AN EX PARTE RESTRAINING ORDER FROM THE
SOMERSET COUNTY CIRCUIT COURT, THERE HAVING BEEN NO NOTICE TO OR
INFORMAL COMMUNICATION WITH PETITIONERS.  THE ORDER RESTRAINED
PETITIONERS FOR 10 DAYS FROM HOLDING RALLIES "WHICH WILL TEND TO
DISTURB AND ENDANGER THE CITIZENS OF THE COUNTY," AND THE AUGUST 7
RALLY WAS NOT HELD.  AFTER TRIAL 10 DAYS LATER, THE CIRCUIT COURT
ISSUED ANOTHER INJUNCTION, EXTENDING THE EFFECT OF THE EARLIER ORDER
FOR 10 MONTHS.  THE MARYLAND COURT OF APPEALS AFFIRMED THE 10-DAY
ORDER, BUT REVERSED THE 10-MONTH ORDER, HOLDING THAT "THE PERIOD OF
TIME WAS UNREASONABLE."  HELD: 

1.  THE CASE IS NOT MOOT.  THE MARYLAND COURT OF APPEALS' APPROVAL
OF THE 10-DAY ORDER CONTINUES TO PLAY A ROLE IN THE RESPONSE OF LOCAL
OFFICIALS TO PETITIONERS' EFFORTS TO CONTINUE THEIR ACTIVITIES IN THE
COUNTY.  PP. 178-179. 

2.  THE 10-DAY RESTRAINING ORDER MUST BE SET ASIDE BECAUSE, WHERE
THE PRINCIPLES GUARANTEED BY THE FIRST AMENDMENT AND APPLICABLE TO THE
STATES BY THE FOURTEENTH ARE INVOLVED, THERE IS NO PLACE FOR SUCH EX
PARTE ORDER, ISSUED WITHOUT FORMAL OR INFORMAL NOTICE TO PETITIONERS,
WHERE NO SHOWING IS MADE THAT IT IS IMPOSSIBLE TO SERVE OR NOTIFY THE
OPPOSING PARTIES AND TO GIVE THEM AN OPPORTUNITY TO PARTICIPATE IN AN
ADVERSARY PROCEEDING.  PP. 179-185. 

247 MD. 126 A.2D 452, REVERSED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE IDENTIFIED WITH A "WHITE SUPREMACIST" ORGANIZATION
CALLED THE NATIONAL STATES RIGHTS PARTY.  THEY HELD A PUBLIC ASSEMBLY
OR RALLY NEAR THE COURTHOUSE STEPS IN THE TOWN OF PRINCESS ANNE, THE
COUNTY SEAT OF SOMERSET COUNTY, MARYLAND, IN THE EVENING OF AUGUST 6,
1966.  THE AUTHORITIES DID NOT ATTEMPT TO INTERFERE WITH THE RALLY. 
BECAUSE OF THE TENSE ATMOSPHERE WHICH DEVELOPED AS THE MEETING
PROGRESSED, ABOUT 60 STATE POLICEMEN WERE BROUGHT IN, INCLUDING SOME
FROM A NEARBY COUNTY.  THEY WERE HELD IN READINESS, BUT FOR TACTICAL
REASONS ONLY A FEW WERE IN EVIDENCE AT THE SCENE OF THE RALLY. 

PETITIONERS' SPEECHES, AMPLIFIED BY A PUBLIC ADDRESS SYSTEM SO THAT
THEY COULD BE HEARD FOR SEVERAL BLOCKS, WERE AGGRESSIVELY AND
MILITANTLY RACIST.  THEIR TARGET WAS PRIMARILY ENGROES AND,
SECONDARILY, JEWS.  IT IS SUFFICIENT TO OBSERVE WITH THE COURT BELOW,
THAT THE SPEAKERS ENGAGED IN DELIBERATELY DEROGATORY, INSULTING, AND
THREATENING LANGUAGE, SCARCELY DISGUISHED BY PROTESTATIONS OF PEACEFUL
PURPOSES; AND THAT LISTERNERS MIGHT WELL HAVE CONSTRUED THEIR WORDS AS
BOTH A PROVACATION TO THE NEGROES IN THE CROWD AND AN INCITEMENT TO THE
WHITES.  THE RALLY CONTINUED FOR SOMETHING MORE THAN AN HOUR,
CONCLUDING AT ABOUT 8"25 .M.  THE CROWD LISTENING TO THE SPEECHES
INCREASED FROM ABOUT 50 AT THE BEGINNING TO ABOUT 150, OF WHOM 25% WERE
NEGROES. 

IN THE COURSE OF THE PROCEEDINGS IT WAS ANNOUNCED THAT THE RALLY
WOULD BE RESUMED THE FOLLOWING NIGHT, AUGUST 7.  /1/ 

ON THAT DAY, THE RESPONDENTS, OFFICIALS OF PRINCESS ANNE AND OF
SOMERSET COUNTY, APPLIED FOR AND OBTAINED A RESTRAINING ORDER FROM THE
CIRCUIT COURT FOR SOMERSET COUNTY.  THE PROCEEDINGS WERE EX PARTE, NO
NOTICE BEING GIVEN TO PETITIONERS AND, SO FAR AS APPEARS, NO EFFORT
BEING MADE INFORMALLY TO COMMUNICATE WITH THEM, ALTHOUGH THIS IS
EXPRESSLY CONTEMPLATED UNDER MARYLAND PROCEDURE.  /2/  THE ORDER
RESTRAINED PETITIONERS FOR 10 DAYS FROM HOLDING RALLIES OR MEETINGS IN
THE COUNTY "WHICH WILL TEND TO DISTURB AND ENDANGER THE CITIZENS OF THE
COUNTY."  /3/  AS A RESULT, THE RALLY SCHEDULES FOR AUGUST 7 WAS NOT
HELD.  AFTER THE TRIAL WHICH TOOK PLACE 10 DAYS LATER, AN INJUNCTION
WAS ISSUED BY THE CIRCUIT COURT ON AUGUST 30, IN EFFECT EXTENDING THE
RESTRAINT FOR 10 ADDITIONAL MONTHS.  THE COURT HAD BEFORE IT, IN
ADDITION TO THE TESTIMONY OF WITNESSES, TAPE RECORDINGS MADE BY THE
POLICE OF THE AUGUST 6 RALLY. 

ON APPEAL, THE MARYLAND COURT OF APPEALS AFFIRMED THE 10-DAY ORDER,
BUT REVERSED THE 10-MONTH ORDER ON THE GROUND THAT "THE PERIOD OF TIME
WAS UNREASONABLE AND THAT IT WAS ARBITRARY TO ASSUME THAT A CLEAR AND
PRESENT DANGER OF CIVIL DISTURBANCE AND RIOT WOULD PERSIST FOR TEN
MONTHS." 

PETITIONERS SOUGHT REVIEW BY THIS COURT, UNDER 28 U.S.C. 1257(3),
ASSERTING THAT THE CASE IS NOT MOOT AND THAT THE DECISION OF THE
MARYLAND COURT OF APPEALS CONTINUES TO HAVE AN ADVERSE EFFECT UPON
PETITIONERS' RIGHTS.  WE GRANTED CERTIORARI. 

WE AGREE WITH PETITIONERS THAT THE CASE IS NOT MOOT.  SINCE 1966,
PETITIONERS HAVE SOUGHT TO CONTINUE THEIR ACTIVITIES, INCLUDING THE
HOLDING OF RALLIES IN PRINCESS ANNE AND SOMERSET COUNTY, AND IT APPEARS
THAT THE DECISION OF THE MARYLAND COURT OF APPEALS CONTINUES TO PLAY A
SUBSTANTIAL ROLE IN THE RESPONSE OF OFFICIALS TO THEIR ACTIVITIES.  /4/
IN THESE CIRCUMSTANCES, OUR JURISDICTION IS NOT AT AN END. 

THIS IS THE TEACHING OF BUS EMPLOYEES V. MISSOURI, 374 U.S. 74
(1963), WHICH CONCERNED A LABOR DISPUTE WHICH HAD LED TO STATE SEIZURE
OF THE BUSINESS.  THIS COURT HELD THAT, ALTHOUGH THE SEIZURE HAD BEEN
TERMINATED, THE CASE WAS NOT MOOT BECAUSE "THE LABOR DISPUTE (WHICH
GAVE RISE TO THE SEIZURE) REMAINS UNRESOLVED.  THERE THUS EXISTS . . .
NOT MERELY THE SPECULATIVE POSSIBILITY OF INVOCATION OF THE (SEIZURE
LAW) IN SOME FUTURE LABOR DISPUTE, BUT THE PRESENCE OF AN EXISTING
UNRESOLVED DISPUTE WHICH CONTINUES.  . . . "  ID., AT 78. 

IN SOUTHERN PACIFIC TERMINAL CO. V. ICC, 219 U.S. 498 (1911), THIS
COURT DECLINED TO HOLD THAT THE CASE WAS MOOT ALTHOUGH THE TWO-YEAR
CEASE-AND-DESIST ORDER AT ISSUE HAD EXPIRED.  IT SAID:  "THE QUESTIONS
INVOLVED IN THE ORDERS OF THE INTERSTATE COMMERCE COMMISSION ARE
USUALLY CONTINUING . . . AND THEIR CONSIDERATION OUGHT NOT TO BE, AS
THEY MIGHT BE, DEFEATED, BY SHORT TERM ORDERS, CAPABLE OF REPETITION,
YET EVADING REVIEW.  . . . "  ID., AT 515. 

THESE PRINCIPLES ARE APPLICABLE TO THE PRESENT CASE.  THE UNDERLYING
QUESTION PERSISTS AND IS AGITATED BY THE CONTINUING ACTIVITIES AND
PROGRAM OF PETITIONERS:  WHETHER, BY WHAT PROCESSES, AND TO WHAT EXTENT
THE AUTHORITIES OF THE LOCAL GOVERNMENTS MAY RESTRICT PETITIONERS IN
THEIR RALLIES AND PUBLIC MEETINGS. 

THIS CONCLUSION-- THAT THE QUESTION IS NOT MOOT AND OUGHT TO BE
ADJUDICATED BY THIS COURT-- IS PARTICULARLY APPROPRIATE IN VIEW OF THIS
COURT'S DECISION IN WALKER V. BIRMINGHAM, 388 U.S. 307 (1967).  IN THAT
CASE, THE COURT HELD THAT DEMONSTRATORS WHO HAD PROCEEDED WITH THEIR
PROTEST MARCH IN FACE OF THE PROHIBITION OF AN INNUNCTIVE ORDER AGAINST
SUCH A MARCH, COULD NOT DEFEND COMTEMPT CHARGES BY ASSERTING THE
UNCONSTITUTIONALITY OF THE INJUNCTION.  THE PROPER PROCEDURE, IT WAS
HELD, WAS TO SEEK JUDICIAL REVIEW OF THE INJUNCTION AND NOT TO DISOBEY
IT, NOT MATTER HOW WELL-FOUNDED THEIR DOUBTS MIGHT BE AS TO ITS
VALIDITY.  PETITIONERS HAVE HERE PURSUED THE COURSE INDICATED BY
WALKER; AND IN VIEW OF THE CONTINUING VALIDITY OF PETITIONERS'
GRIEVANCE, WE CANNOT SAY THAT THEIR CASE IS MOOT. 

SINCE THE MARYLAND COURT OF APPEALS REVERSED THE 10-MONTH INJUNCTION
OF AUGUST 30, 1966, WE DO NOT CONSIDER THAT ORDER.  WE TURN TO THE
CONSTITUTIONAL PROBLEMS RAISED BY THE 10-DAY INJUNCTIVE ORDER. 

THE PETITIONERS URGE THAT THE INJUNCTION CONSTITUTED A PRIOR
RESTRAINT ON SPEECH AND THAT IT THEREFORE VIOLATED THE PRINCIPLES OF
THE FIRST AMENDMENT WHICH ARE APPLICABLE TO THE STATES BY VIRTURE OF
THE FOURTEENTH AMENDMENT.  IN ANY EVENT, THEY ASSERT, IT WAS NOT
CONSTITUTIONALLY PERMISSIBLE TO RESTRAIN PETITIONERS' MEETINGS BECAUSE
NO "CLEAR AND PRESENT DANGER" EXISTED. 

RESPONDENTS, HOWEVER, ARGUE THAT THE INJUNCTIVE ORDER IN THIS CASE
SHOULD NOT BE CONSIDERED AS A "PRIOR RESTRAINT" BECAUSE IT WAS BASED
UPON THE EVENTS OF THE PRECEDING EVENING AND WAS DIRECTED AT PREVENTING
A CONTINUATION OF THOSE EVENTS, AND THAT, EVEN IF CONSIDERED A "PRIOR
RESTRAINT," ISSUANCE OF THE ORDER WAS JUSTIFIED BY THE CLEAR AND
PRESENT DANGER OF RIOT AND DISORDER DELIBERATELY GENERATED BY
PETITIONERS. 

WE NEED NOT DECIDE THE THORNY PROBLEM OF WHETHER, ON THE FACTS OF
THIS CASE, AN INJUNCTION AGAINST THE ANNOUNCED RALLY COULD BE
JUSTIFIED.  THE 10-DAY ORDER HERE MUST BE SET ASIDE BECAUSE OF A BASIC
INFIRMITY IN THE PROCEDURE BY WHICH IT WAS OBTAINED.  IT WAS ISSUED EX
PARTE, WITHOUT NOTICE TO PETITIONERS AND WITHOUT ANY EFFORT, HOWEVER
INFORMAL, TO INVITE OR PERMIT THEIR PARTICIPATION IN THE PROCEEDINGS. 
THERE IS A PLACE IN OUR JURISPRUDENCE FOR EX PARTE ISSUANCE, WITHOUT
NOTICE, OF TEMPORARY RESTRAINING ORDERS OF SHORT DURATION; BUT THERE IS
NO PLACE WITHIN THE AREA OF BASIC FREEDOMS GUARANTEED BY THE FIRST
AMENDMENT FOR SUCH ORDERS WHERE NO SHOWING IS MADE THAT IT IS
IMPOSSIBLE TO SERVE OR TO NOTIFY THE OPPOSING PARTIES AND TO GIVE THEM
AN OPPORTUNITY TO PARTICIPATE. 

WE DO NOT HERE CHALLENGE THE PRINCIPLE THAT THERE ARE SPECIAL,
LIMITED CIRCUMSTANCES IN WHICH SPEECH IS SO INTERLACED WITH BURGEONING
VIOLENCE THAT IT IS NOT PROTECTED BY THE BROAD GUARANTEE OF THE FIRST
AMENDMENT.  IN CANTWELL V. CONNECTICUT, 310 U.S. 296, AT 308 (1940),
THIS COURT SAID THAT "(NO ONE WOULD HAVE THE HARDIHOOD TO SUGGEST THAT
THE PRINCIPLE OF FREEDOM OF SPEECH SANCTIONS INCITEMENT TO RIOT."  SEE
ALSO CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572 (1942); MILK WAGON
DRIVERS UNION V. MEADOWMOOR DAIRIES, 312 U.S. 287, 294 (1941). 
ORDINARILY, THE STATE'S CONSTITUTIONALLY PERMISSIBLE INTERESTS ARE
ADEQUATELY SERVED BY CRIMINAL PENALTIES IMPOSED AFTER FREEDOM TO SPEAK
HAS BEEN SO GROSSLY ABUSED THAT ITS IMMUNITY IS BREACHED.  THE IMPACT
AND CONSEQUENCES OF SUBSEQUENT PUNISHMENT FOR SUCH ABUSE ARE MATERIALLY
DIFFERENT FROM THOSE OF PRIOR RESTRAINT.  PRIOR RESTRAINT UPON SPEECH
SUPPRESSES THE PRECISE FREEDOM WHICH THE FIRST AMENDMENT SOUGHT TO
PROTECT AGAINST ABRIDGMENT.  /5/ 

THE COURT HAS EMPHASIZED THAT "(A) SYSTEM OF PRIOR RESTRAINTS OF
EXPRESSION COMES TO THIS COURT BEARING A HEAVY PRESUMPTION AGAINST ITS
CONSTITUTIONAL VALIDITY."  BANTAM BOOKS V. SULLIVAN, 372 U.S. 58, 70
(1963); FREEDMAN V. MARYLAND, 380 U.S. 51, 57 (1965).  AND EVEN WHERE
THIS PRESUMPTION MIGHT OTHERWISE BE OVERCOME, THE COURT HAS INSISTED
UPON CAREFUL PROCEDURAL PROVISIONS, DESIGNED TO ASSURE THE FULLEST
PRESENTATION AND CONSIDERATION OF THE MATTER WHICH THE CIRCUMSTANCES
PERMIT.  AS THE COURT HAS INSISTED UPON CAREFUL PROCEDURAL PROVISIONS,
DESIGNED TO ASSURE THE FULLEST PRESENTATION AND CONSIDERATION OF THE
MATTER WHICH THE CIRCUMSTANCES PERMIT.  AS THE COURT SAID IN FREEDMAN
V. MARYLAND, SUPRA, AT 58, A NONCRIMINAL PROCESS OF PRIOR RESTRAINTS
UPON EXPRESSION "AVOIDS CONSTITUTIONAL INFIRMITY ONLY IF IT TAKES PLACE
UNDER PROCEDURAL SAFEGAURDS DESIGNED TO OBVIATE THE DANGERS OF A
CENSORSHIP SYSTEM." 

MEASURED AGAINST THESE STANDARDS, IT IS CLEAR THAT THE 10-DAY
RESTRAINING ORDER IN THE PRESENT CASE, ISSUED EX PARTE, WITHOUT FORMAL
OR INFORMAL NOTICE TO THE PETITIONERS OR ANY EFFORT TO ADVISE THEM OF
THE PROCEEDING, CANNOT BE SUSTAINED.  CF. MARCUS V. SEARCH WARRANT, 367
U.S. 717, 731 (1961); /6/  A QUANTITY OF BOOKS V. KANSAS, 378 U.S. 205
(1964).  /7/  IN THE LATTER CASE, THIS COURT DISAPPROVED A SEIZURE OF
BOOKS UNDER A KANSAS STATUTE ON THE BASIS OF EX PARTE SCRUTINY BY A
JUDGE.  THE COURT HELD THAT THE STATUTE WAS UNCONSTITUTIONAL.  MR.
JUSTICE BRENNAN, SPEAKING FOR A PLURALITY OF THE COURT, CONDEMNED THE
STATUTE FOR "NOT FIRST AFFORDING (THE SELLER OF THE BOOKS) AN ADVERSARY
HEARING."  ID., AT 211.  IN THE PRESENT CASE, THE REASONS FOR INSISTING
UPON AN OPPORTUNITY FOR HEARING AND NOTICE, AT LEAST IN THE ABSENCE OF
A SHOWING THAT REASONABLE EFFORTS TO NOTIFY THE ADVERSE PARTIES WERE
UNSUCCESSFUL, ARE EVEN MORE COMPELLING THAN IN CASES INVOLVING
ALLEGEDLY OBSCENE BOOKS.  THE PRESENT CASE INVOLVES A RALLY AND
"POLITICAL" SPEECH IN WHICH THE ELEMENT OF TIMELINESS MAY BE
IMPORTANT.  AS MR. JUSTICE HARLAN, DISSENTING IN A QUANTITY OF BOOKS V.
KANSAS, POINTED OUT, SPEAKING OF "POLITICAL AND SOCIAL EXPRESSION": 

"IT IS VITAL TO THE OPERATION OF DEMOCRATIC GOVERNMENT THAT THE
CITIZENS HAVE FACTS AND IDEAS ON IMPORTANT ISSUES BEFORE THEM.  A DELAY
OF EVEN A DAY OR TWO MAY BE OF CRUCIAL IMPORTANCE IN SOME INSTANCES. 
ON THE OTHER HAND, THE SUBJECT OF SEX IS OF CONSTANT BUT RARELY
PARTICULARLY TOPICAL INTEREST."  378 U.S.,AT 224. 

IN THE PRESENT CASE, THE RECORD DISCLOSES NO REASON WHY PETITIONERS
WERE NOT NOTIFIED OF THE APPLICATION FOR INJUNCTION.  THEY WERE
APPARENTLY PRESENT IN PRINCESS ANNE.  THEY HAD HELD A RALLY THERE ON
THE NIGHT PRECEDING THE APPLICATION FOR AND ISSUANCE OF THE
INJUNCTION.  THEY WERE SCHEDULED TO HAVE ANOTHER RALLY ON THE VERY
EVENING OF THE DAY WHEN THE INJUNCTION WAS ISSUED.  /8/  AND SOME OF
THEM WERE ACTUALLY SERVED WITH THE WRIT OF INJUNCTION AT 6:10 THAT
EVENING.  IN THESE CIRCUMSTANCES, THERE IS NO JUSTIFICATION FOR THE EX
PARTE CHARACTER OF THE PROCEEDINGS IN THE SENSITIVE AREA OF FIRST
AMENDMENT RIGHTS. 

THE VALUE OF A JUDICIAL PROCEEDING, AS AGAINST SELF-HELP BY THE
POLICE, IS SUBSTANTIALLY DILUTED WHERE THE PROCESS IS EX PARTE, BECAUSE
THE COURT DOES NOT HAVE AVAILABLE THE FUNDAMENTAL INSTRUMENT FOR
JUDICIAL JUDGMENT:  AN ADVERSARY PROCEEDING IN WHICH BOTH PARTIES MAY
PARTICIPATE.  THE FACTS IN ANY CASE INVOLVING A PUBLIC DEMONSTRATION
ARE DIFFICULT TO ASCERTAIN AND EVEN MORE DIFFICULT TO EVALUATE. 
JUDGMENT AS TO WHETHER THE FACTS JUSTIFY THE USE OF THE DRASTIC POWER
OF INJUNCTION NECESSARILY TURNS ON SUBTLE AND CONTROVERSIAL
CONSIDERATIONS AND UPON A DELICATE ASSESSMENT OF THE PARTICULAR
SITUATION IN LIGHT OF LEGAL STANDARDS WHICH ARE INESCAPABLY IMPRECISE. 
/9/  IN THE ABSENCE OF EVIDENCE AND ARGUMENT OFFERED BY BOTH SIDES AND
OF THEIR PARTICIPATION IN THE FORMULATION OF VALUE JUDGMENTS, THERE IS
INSUFFICIENT ASSURANCE OF THE BALANCED ANALYSIS AND CAREFUL CONCLUSIONS
WHICH ARE ESSENTIAL IN THE AREA OF FIRST AMENDMENT ADJUDICATION.  /10/ 

THE SAME IS TRUE OF THE FASHIONING OF THE ORDER.  AN ORDER ISSUED IN
THE AREA OF FIRST AMENDMENT RIGHTS MUST BE COUCHED IN THE NARROWEST
TERMS THAT WILL ACCOMPLISH THE PIN-POINTED OBJECTIVE PERMITTED BY
CONSTITUTIONAL MANDATE AND THE ESSENTIAL NEEDS OF THE PUBLIC ORDER.  IN
THIS SENSITIVE FIELD, THE STATE MAY NOT EMPLOY "MEANS THAT BROADLY
STIFLE FUNDAMENTAL PERSONAL LIBERTIES WHEN THE END CAN BE MORE NARROWLY
ACHIEVED."  SHELTON V. TUCKER, 364 U.S. 479, 488 (1960).  IN OTHER
WORDS, THE ORDER MUST BE TAILORED AS PRECISELY AS POSSIBLE TO THE EXACT
NEEDS OF THE CASE.  THE PARTICIPATION OF BOTH SIDES IS NECESSARY FOR
THIS PURPOSE.  /11/  CERTAINLY, THE FAILURE TO INVITE PARTICIPATION OF
THE PARTY SEEKING TO EXERCISE FIRST AMENDMENT RIGHTS REDUCES THE
POSSIBILITY OF A NARROWLY DRAWN ORDER, AND SUBSTANTIALLY IMPERILS THE
PROTECTION WHICH THE AMENDMENT SEEKS TO ASSURE.    FINALLY, RESPONDENTS
URGE THAT THE FAILURE TO GIVE NOTICE AND AN OPPORTUNITY FOR HEARING
SHOULD NOT BE CONSIDERED TO INVALIDATE THE ORDER BECAUSE, UNDER
MARYLAND PROCEDURE, PETITIONERS MIGHT HAVE OBTAINED A HEARING ON NOT
MORE THAN TWO DAYS' NOTICE.  MARYLAND RULE OF PROCEDURE BB72.  BUT THIS
PROCEDURAL RIGHT DOES NOT OVERCOME THE INFIRMITY IN THE ABSENCE OF A
SHOWING OF JUSTIFICATION FOR THE EX PARTE NATURE OF THE PROCEEDINGS. 
THE ISSUANCE OF AN INJUNCTION WHICH ABORTS A SCHEDULED RALLY OR PUBLIC
MEETING, EVEN IF THE RESTRAINT IS OF SHORT DURATION, IS A MATTER OF
IMPORTANCE AND CONSEQUENCE IN VIEW OF THE FIRST AMENDMENT'S
IMPERATIVE.  THE DENIAL OF A BASIC PROCEDURAL RIGHT IN THESE
CIRCUMSTANCES IS NOT EXCUSED BY THE AVAILABILITY OF POST-ISSUANCE
PROCEDURE WHICH COULD NOT POSSIBLY SERVE TO RESCUE THE AUGUST 7
MEETING, BUT, AT BEST, COULD HAVE SHORTENED THE PERIOD IN WHICH
PETITIONERS WERE PREVENTED FROM HOLDING A RALLY. 

WE NEED NOT HERE DECIDE THAT IT IS IMPOSSIBLE FOR CIRCUMSTANCES TO
ARISE IN WHICH THE ISSUANCE OF AN EX PARTE RESTRAINING ORDER FOR A
MINIMUM PERIOD COULD BE JUSTIFIED BECAUSE OF THE UNAVAILABILITY OF THE
ADVERSE PARTIES OR THEIR COUNSEL, OR PERHAPS FOR OTHER REASONS.  IN THE
PRESENT CASE, IT IS CLEAR THAT THE FAILURE TO GIVE NOTICE, FORMAL OR
INFORMAL, AND TO PROVIDE AN OPPORTUNITY FOR AN ADVERSARY PROCEEDING
BEFORE THE HOLDING OF THE RALLY WAS RESTRAINED, IS INCOMPATIBLE WITH
THE FIRST AMENDMENT.  BECAUSE WE REVERSE THE JUDGMENT BELOW ON THIS
BASIS, WE NEED NOT AND DO NOT DECIDE WHETHER THE FACTS IN THIS CASE
PROVIDED A CONSTITUTIONALLY PERMISSIBLE BASIS FOR TEMPORARILY ENJOINING
THE HOLDING OF THE AUGUST 7 RALLY. 

              REVERSED. 

/1/  PETITIONER NORTON SAID, "I WANT YOU TO . . . BE BACK HERE AT
THE SAME PLACE TOMORROW NIGHT, BRING EVERY FRIEND YOU HAVE.  . . .
WE'RE GOING TO TAKE IT EASY TONIGHT . . . " AND "YOU WHITE FOLKS BRING
YOUR FRIENDS, COME BACK TOMORROW NIGHT.  . . . COME ON BACK TOMORROW
NIGHT, LET'S RAISE A LITTLE BIT OF HELL FOR THE WHITE RACE." 

/2/  MARYLAND RULE OF PROCEDURE BB72. 

/3/  THE TEXT OF THE WRIT OF INJUNCTION IS AS FOLLOWS: 

"WE COMMAND AND STRICTLY ENJOIN AND PROHIBIT YOU THE SAID JOSEPH
CARROLL, RICHARD NORTON, J. B. STONER, CONNIE LYNCH, ROBERT LYONS,
WILLIAM BRAILSFORD AND NATIONAL STATES RIGHTS PARTY FROM HOLDING
RALLIES OR MEETINGS IN SOMERSET COUNTY WHICH WILL TEND TO DISTURB AND
ENDANGER THE CITIZENS OF THE COUNTY AND TO ENJOIN YOU, THE SAID
DEFENDANTS, FROM USING AND OPERATING OR CAUSING TO BE OPERATED WITHIN
THE COUNTY ANY DEVICES OR APPARATUS FOR THE APPLICATION (SIC) OF THE
HUMAN VOICE OR RECORDS FROM ANY RADIO, PHONOGRAPH OR OTHER SOUND MAKING
OR PRODUCING DEVICE THEREBY DISTRUBING THE TRANQUILITY OF THE POPULACE
OF THE COUNTY, UNTIL THE MATTER CAN BE HEARD AND DETERMINED IN EQUITY,
OR FOR A PERIOD OF TEN DAYS FROM THE DATE HEREOF. 

"HEREOF, FAIL NOT, AS YOU WILL ACT TO THE CONTRARY AT YOUR PERIL." 

/4/  PETITIONERS RECITE THAT THEY WERE DENIED THE RIGHT TO HOLD A
RALLY IN PRINCESS ANNE ON JULY 17, 1967, AND THAT THE LETTER OF
REJECTION RELIED UPON THE COURT OF APPEALS' DECISION.  THEY ACKNOWLEDGE
THAT ON JULY 25, THEY WERE AUTHORIZED TO HOLD RALLIES IN PRINCESS ANNE
ON JULY 28, 29, AND 30, 1967; BUT THEY APPEAR TO COMPLAIN THAT THE
PERMIT STIPULATED THAT THE SOUND SHOULD NOT BE AMPLIFIED FOR MORE THAN
250 FEET, AND THAT "YOU WILL NOT BE PERMITTED TO USE RACIAL EPITHETS OR
TO MAKE SLANDEROUS REMARKS ABOUT THE MEMBERS OF ANY RACE OR ETHNIC
GROUP." 

/5/  THE ELIMINATION OF PRIOR RESTRAINTS WAS A "LEADING PURPOSE" IN
THE ADOPTION OF THE FIRST AMENDMENT.  SEE LOVELL V. GRIFFIN, 303 U.S.
444, AT 451-452 (1938). 

/6/  MARCUS REJECTED THE CONTENTION THAT KINGSLEY BOOKS, INC. V.
BROWN, 354 U.S. 436 (1957), SUPPORTED "THE PROPOSITION THAT THE STATE
MAY IMPOSE THE EXTENSIVE RESTRAINTS IMPOSED HERE ON THE DISTRIBUTION OF
THESE PUBLICATIONS PRIOR TO AN ADVERSARY PROCEEDING ON THE ISSUE OF
OBSCENITY."  367 U.S.,AT 736.  IN KINGSLEY, A NEW YORK STATUTE
AUTHORIZING AN INJUNCTION PENDENTE LITE AGAINST THE DISTRIBUTION OF
OBSCENE BOOKS WAS UPHELD.  BY STATUTE, THE PERSON ENJOINED COULD GET A
HEARING "WITHIN ONE DAY AFTER JOINDER OF ISSUE."  THE NEW YORK COURTS
HAVE SUBSEQUENTLY HELD THAT NO EX PARTE INJUNCTION MAY BE ISSUED UNDER
THE STATUTE.  TENNEY V. LIBERTY NEWS DISTRIBS., INC., 13 APP.DIV.2D
770, 215 N.Y.S.2D 663 (1961). 

/7/  COMPARE THE CONSIDERATIONS LEADING TO THE NORRIS-LAGUARDIA ACT,
47 STAT. 70, 29 U.S.C. 101-115.  SEE F. FRANKFURTER & N. GREENE, THE
LABOR INJUNCTION 200-205 (1930). 

/8/  THE PETITION FOR THE TEMPORARY INJUNCTION RECITED THAT CARROLL
AND THE OTHERS AGAINST WHOM THE INJUNCTION WAS SOUGHT "ARE PRESENTLY IN
SOMERSET OR WICOMICO COUNTIES OF THE STATE OF MARYLAND." 

/9/  CF. FRANKFURTER & GREENE, THE LABOR INJUNCTION, SUPRA. 

/10/  THERE IS A DANGER IN RELYING EXCLUSIVELY ON THE VERSION OF
EVENTS AND DANGERS PRESENTED BY PROSECUTING OFFICIALS, BECAUSE OF THEIR
SPECIAL INTERESTS.  FREEDMAN V. MARYLAND, SUPRA, AT 57-58. 

/11/  CF. WILLIAMS V. WALLACE, 240 F.SUPP.  100 (D.C.M.D. ALA.
1965).  THERE DISTRICT JUDGE JOHNSON INITIALLY REFUSED TO ISSUE AN
INJUNCTION EX PARTE AGAINST THE ABSENT STATE OFFICIALS.  THEN, AFTER A
HEARING AT WHICH THE PLAINTIFFS SUBMITTED A DETAILED PLAN FOR THEIR
PROPOSED SELMA-MONTGOMERY MARCH, HE ENJOINED THE STATE FROM INTERFERING
WITH THE MARCH AS PROPOSED IN THE PLAN. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS, WHILE JOINING THE OPINION OF THE COURT, ADHERES
TO HIS DISSENT IN KINGSLEY BOOKS, INC. V. BROWN, 354 U.S. 436, 446-447,
AND TO HIS CONCURRING OPINION IN FREEDMAN V. MARYLAND, 380 U.S. 51, 61
62. 

ELEANOR HOLMES NORTON AND WILLIAM H. ZINMAN ARGUED THE CAUSE FOR
PETITIONERS.  WITH THEM ON THE BRIEF WERE MELVIN L. WULF AND LEON
FRIEDMAN. 

S. LEONARD ROTTMAN AND ALEXANDER G. JONES ARGUED THE CAUSE FOR
RESPONDENTS.  WITH THEM ON THE BRIEF WAS FRANCIS B. BURCH, ATTORNEY
GENERAL OF MARYLAND. 
..END :





















FIREMEN V. CHICAGO, R.I. & P.R. CO., 393 U.S. 129 


       BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN ET AL. V.

           CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF ARKANSAS. 

      NO. 16.  ARGUED OCTOBER 22, 1968.-- DECIDED NOVEMBER 18,

           1968.  /0/ 


APPELLEES, A GROUP OF INTERSTATE RAILROADS OPERATING IN ARKANSAS,
SOUGHT DECLARATORY AND INJUNCTIVE RELIEF IN THE DISTRICT COURT
CLAIMING, INTER ALIA, THAT ARKANSAS'"FULL-CREW" LAWS VIOLATE THE
COMMERCE CLAUSE, AND THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF
THE FOURTEENTH AMENDMENT.  THE FULL-CREW LAWS REQUIRE MINIMUM TRAIN
CREWS FOR CERTAIN CONDITIONS OF RAILROAD OPERATION IN THE STATE BUT,
THROUGH MILEAGE CLASSIFICATION, HAVE THE EFFECT OF EXEMPTING THE
STATE'S INTRASTATE RAILROADS FROM THOSE REQUIREMENTS.  THE LAWS WERE
ENACTED IN 1907 AND 1913 TO FURTHER RAILROAD SAFETY AND, THOUGH SEVERAL
TIMES SUBSEQUENTLY RE-EVALUATED, HAVE BEEN RETAINED FOR THAT PURPOSE. 
CONFLICTING EVIDENCE WAS GIVEN TO SUPPORT THE RAILROADS' CLAIMS THAT
FULL-CREW REQUIREMENTS MERELY FACILITATE FEATHERBEDDING AND APPELLANTS'
CLAIMS THAT SUCH REQUIREMENTS PROMOTE SAFETY.  THOUGH EARLIER
DECISIONS OF THIS COURT UPHELD THE STATUTES AGAINST CONSTITUTIONAL
CHALLENGE, THE DISTRICT COURT CONCLUDED THAT CONDITIONS HAVE CHANGED
AND THAT THE FULL-CREW LAWS NOW IMPERMISSIBLY BURDEN INTERSTATE
COMMERCE.  THE COURT ALSO HELD THAT THE FULL-CREW LAWS ARE
"UNREASONABLE AND OPPRESSIVE,"  AND THUS VIOLATE THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  THE COURT DID NOT REACH APPELLEES'
CONTENTION THAT THE LAWS DISCRIMINATE AGAINST INTERSTATE COMMERCE IN
FAVOR OF INTRASTATE COMMERCE IN VIOLATION OF THE COMMERCE AND EQUAL
PROTECTION CLAUSE.  HELD: 

1.  WHETHER FULL-CREW LAWS ARE NECESSARY TO FURTHER RAILROAD SAFETY
IS A MATTER FOR LEGISLATIVE DETERMINATION.  IN THE CIRCUMSTANCES OF
THIS CASE THE DISTRICT COURT ERRED IN REJECTING THE LEGISLATIVE
JUDGMENT THAT SUCH LAWS PROMOTE RAILROAD SAFETY AND THAT THE COST OF
ADDITIONAL CREWMEN IS JUSTIFIED BY THE SAFETY SUCH LAWS MIGHT ACHIEVE. 
PP. 136-140. 

2.  THE MILEAGE CLASSIFICATION OF THE ARKANSAS LAWS IS PERMISSIBLE
UNDER THE COMMERCE AND EQUAL PROTECTION CLAUSES.  PP. 140-142. 

3.  THE FULL-CREW LAWS DO NOT VIOLATE THE EQUAL PROTECTION CLAUSE BY
SINGLING OUT RAILROADS FROM OTHER FORMS OF TRANSPORTATION, AND
APPELLEES' CONTENTION THAT THE STATUTES ARE "UNDULY OPPRESSIVE" UNDER
THE DUE PROCESS CLAUSE AFFORDS NO BASIS FOR THEIR INVALIDATION APART
FROM ANY EFFECT ON INTERSTATE COMMERCE.  PP. 142-143. 

274 F.SUPP.  294, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THESE CASES RAISE THE QUESTION WHETHER THE ARKANSAS "FULL-CREW"
LAWS, SPECIFYING A MINIMUM NUMBER OF EMPLOYEES WHO MUST SERVE AS PART
OF A TRAIN CREW UNDER CERTAIN CIRCUMSTANCES, VIOLATE THE COMMERCE
CLAUSE OR THE FOURTEENTH AMENDMENT.  THE CONSTITUTIONALITY OF THESE
ARKANSAS LAWS HAS BEEN SPECIFICALLY UPHELD AGAINST CHALLENGES UNDER THE
SAME CONSTITUTIONAL PROVISIONS IN THREE DECISIONS OF THIS COURT, IN
1911, IN 1916, AND AGAIN IN 1931.  /1/  IN THE PRESENT CASES, HOWEVER,
THE DISTRICT COURT FOUND THAT AS A RESULT OF ECONOMIC AND TECHNICAL
DEVELOPMENTS SINCE OUR LAST DECISION ON THIS SUBJECT, THE STATUTES WERE
NO LONGER JUSTIFIED AS SAFETY MEASURES, THE GROUND ON WHICH THEY HAD
FORMERLY BEEN SUSTAINED, AND STRUCK THEM DOWN AS CONTRARY TO THE
COMMERCE CLAUSE OF THE CONSTITUTION AND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  274 F.SUPP.  294 (D.C.W.D. ARK. 1967).  WE NOTED
PROBABLE JURISDICTION, 390 U.S. 941 (1968).  WE DISAGREE WITH THE
DISTRICT COURT'S HOLDING THAT THE RAILROADS HAVE SHOWN A CHANGE IN
CIRCUMSTANCES SUFFICIENT TO JUSTIFY DEPARTURE FROM OUR THREE PREVIOUS
DECISIONS.  WE THEREFORE REAFFIRM THOSE CASES AND REVERSE THE JUDGMENT
OF THE DISTRICT COURT. 

THE FIRST OF THE TWO STATUTES CHALLENGED HERE WAS ENACTED IN 1907, AND
THIS LAW MAKES IT AN OFFENSE FOR A RAILROAD OPERATING A LINE OF MORE
THAN 50 MILES TO HAUL A FREIGHT TRAIN CONSISTING OF MORE THAN 25 CARS,
UNLESS THE TRAIN HAS A CREW OF NOT "LESS THAN AN ENGINEER, A FIREMAN, A
CONDUCTOR AND THREE (3) BRAKEMEN.  . . . "  /2/  THE SECOND STATUTE,
ENACTED IN 1913, MAKES IT AN OFFENSE FOR ANY RAILROAD WITH A LINE OF
100 MILES OR MORE TO ENGAGE IN SWITCHING OPERATIONS IN CITIES OF
DESIGNATED POPULATIONS WITH "LESS THAN ONE (1) ENGINEER, A FIREMAN, A
FORMAN AND THREE (3) HELPERS.  . . . "  /3/  THESE TWO STATUTES, THE
CONSTITUTIONALITY OF WHICH THIS COURT PREVIOUSLY UPHELD, ARE PRECISELY
THE STATUTES HERE CHALLENGED AND STRUCK DOWN. 

THIS LATEST ATTACK ON THESE ARKANSAS LAWS WAS COMMENCED BY A GROUP
OF INTERSTATE RAILROADS OPERATING IN ARKANSAS WHICH ASKED THE UNITED
STATES DISTRICT COURT TO DECLARE THE STATUTES UNCONSTITUTIONAL AND
ENJOIN TWO ARKANSAS PROSECUTING ATTORNEYS, APPELLANTS HERE, FROM
ENFORCING THEM.  THE RAILROAD BROTHER HOODS, ALSO APPELLANTS HERE, WERE
ALLOWED TO INTERVENE IN THE DISTRICT COURT IN ORDER TO DEFEND THE
VALIDITY OF THE STATE STATUTES.  IN THEIR COMPLAINT APPELLEES CHARGED
THAT BOTH STATUTES (1) OPERATE IN AN "ARBITRARY, CAPRICIOUS,
DISCRIMINATORY AND UNREASONABLE" MANNER IN VIOLATION OF THE DUE PROCESS
AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT; (2) UNDULY
INTERFERE WITH, BURDEN, AND NEEDLESSLY INCREASE THE COST OF INTERSTATE
TRANSPORTATION IN VIOLATION OF THE COMMERCE CLAUSE, ART. I, SEC. 8, CL.
3, OF THE CONSTITUTION, AND CONTRARY TO THE NATIONAL TRANSPORTATION
POLICY EXPRESSED IN THE INTERSTATE COMMERCE ACT; (3) DISCRIMINATE
AGAINST INTERSTATE COMMERCE IN FAVOR OF LOCAL OR INTRASTATE COMMERCE;
AND (4) INVADE A FIELD OF FEDERAL LEGISLATION PRE-EMPTED BY THE FEDERAL
GOVERNMENT PRIMARILY THROUGH PUB. L. 88-108, PASSED BY CONGRESS IN 1963
/4/  TO AVERT A NATIONWIDE RAILROAD STRIKE. 

IN ITS FIRST OPINION IN THESE CASES, THE DISTRICT COURT GRANTED THE
RAILROADS' MOTION FOR SUMMARY JUDGMENT, HOLDING THAT THE FIELD OF FULL
CREW LEGISLATION WAS PRE-EMPTED BY PUB. L. 88-108, 239 F.SUPP.  1
(D.C.W.D. ARK. 1965), BUT WE REVERSED ON THE PRE-EMPTION QUESTION, SUB
NOM. ENGINEERS V. CHICAGO, R.I. & P.R. CO., 382 U.S. 423 (1966).  WE
ALSO HELD THAT THE RAILROADS WERE NOT ENTITLED TO SUMMARY JUDGMENT ON
THEIR ALTERNATIVE THEORY THAT BECAUSE THE EFFECT OF THE MILEAGE
EXEMPTION IN THE TWO ACTS IS TO FREE ALL OF THE STATE'S INTRASTATE
RAILROADS FROM THE FULL-CREW REQUIREMENTS WHILE ENSURING COVERAGE OF
MOST OF THE INTERSTATE RAILROADS, THE TWO ACTS "CONSTITUTE
DISCRIMINATORY LEGISLATION AGAINST INTERSTATE COMMERCE IN FAVOR OF
INTRASTATE COMMERCE."  ID., AT 437-438.  ON REMAND THE DISTRICT COURT
HELD AN EVIDENTIARY HEARING AND, AFTER COMPILING A VOLUMINOUS RECORD,
FOUND THAT THE FULL-CREW REQUIREMENTS HAD "NO SUBSTANTIAL EFFECT ON
SAFETY OF OPERATIONS," PLACED "SUBSTANTIAL FINANCIAL BURDENS" UPON THE
CARRIERS, AND CAUSED "SOME DELAYS" AND INTERFERENCE WITH THE CONTINUITY
OF RAILROAD OPERATIONS.  ON THE BASIS OF THESE FINDINGS THE DISTRICT
COURT HELD THE ARKANSAS LAWS UNCONSTITUTIONAL AS IMPERMISSIBLE BURDENS
ON INTERSTATE COMMERCE AND ALSO RULED THAT BECAUSE THE LAWS WERE
"UNREASONABLE AND OPPRESSIVE"  THEY VIOLATED THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  THE COURT DID NOT REACH THE RAILROADS'
FURTHER ARGUMENT THAT THE ARKANSAS LAWS DISCRIMINATE AGAINST INTERSTATE
COMMERCE IN FAVOR OF INTRASTATE COMMERCE IN VIOLATION OF THE COMMERCE
AND EQUAL PROTECTION CLAUSES.  APPELLANTS CHALLENGE BOTH THE ACCURACY
OF THE DISTRICT COURT'S FINDINGS AND HOLDINGS AND THEIR RELEVANCE TO
ADJUDICATION OF THE CONSTITUTIONAL ISSUES PRESENTED.  THEY ASK US TO
HOLD THAT THE ARKANSAS LAWS DO NOT IMPERMISSIBLY BURDEN INTERSTATE
COMMERCE OR OTHERWISE VIOLATE ANY PROVISION OF THE CONSTITUTION. 

        I. 

THE QUESTION OF CREW SIZE HAS BEEN A SUBJECT OF DISPUTE BETWEEN THE
RAILROADS AND THEIR EMPLOYEES FOR MORE THAN HALF A CENTURY.  MUCH OF
THE CONTROVERSY HAS OF COURSE BEEN FOUGHT OUT BY COLLECTIVE BARGAINING
BETWEEN THE RAILROADS AND THE UNIONS.  /5/  IN MANY STATES ATTEMPTS
HAVE BEEN MADE TO SETTLE THE CONTROVERSY BY LEGISLATION.  THE ARKANSAS
STATUTES BEFORE US WERE PASSED IN 1907 AND 1913, ALONG WITH A NUMBER OF
OTHER LAWS DESIGNED TO FURTHER RAILROAD SAFETY, SUCH AS HEADLIGHT
STANDARDS, REGULATIONS CONCERNING THE OBSTRUCTION OF TRAIN CROSSINGS,
AND SO ON.  /6/  MANY OTHER STATES HAVE ALSO PASSED FULL-CREW LAWS AS
PART OF DETAILED CODES REGULATING RAILROAD SAFETY.  /7/  THESE SAFETY
CODES, AND THE FULL-CREW PROVISIONS IN PARTICULAR, HAVE BEEN SUBJECT TO
CONTINUAL RE-EVALUATION THROUGHOUT THE COUNTRY.  IN NEW YORK, FOR
EXAMPLE, THE PUBLIC SERVICE COMMISSION IN 1960 RECOMMENDED TOTAL REPEAL
OF THE STATE'S FULL-CREW LEGISLATION, AND IN 1966 TWO OF THE THREE NEW
YORK LAWS IN THE FIELD WERE REPEALED, BUT THE LEGISLATURE EXPLICITLY
REJECTED A PROPOSAL TO REPEAL THE THIRD LAW, WHICH REQUIRES BOTH A
FIREMAN AND AN ENGINEER TO BE ON DUTY IN THE ENGINE CAB, IN ADDITION TO
THE BRAKEMAN WHO SERVES IN THE CAB ON FREIGHT HAULS.  /8/  IN ARKANSAS
THE RAILROAD SAFETY LAWS HAVE SIMILARLY BEEN SUBJECT TO CLOSE
SCRUTINY.  ADDITIONAL SAFETY REQUIREMENTS HAVE BEEN ADDED FROM TIME TO
TIME, /9/  AND SOME SAFETY REQUIREMENTS CONSIDERED OUT OF DATE HAVE
BEEN REPEALED.  /10/  WITH RESPECT TO THE FULL-CREW STATUTES
SPECIFICALLY, A PROPOSAL TO REPEAL THESE STATUTES WAS PLACED ON THE
BALLOT FOR POPULAR REFERENDUM IN 1958 AND WAS DECISIVELY DEFEATED BY
THE VOTERS.  CONGRESS TOO HAS BEEN CONCERNED WITH THE PROBLEM OF THE
RULES GOVERNING CREW SIZE AND IN 1963 PASSED A STATUTE REFERRING THE
DISPUTE BETWEEN THE RAILROADS AND THE UNIONS TO ARBITRATION, BUT AS WE
HELD IN OUR PRIOR DECISION, CONGRESS WAS AWARE OF STATE FULL-CREW LAWS
AND DID NOT INTEND TO OVERRIDE THEM.  382 U.S.,AT 429-437. 

IN SPITE OF THIS BACKGROUND OF FREQUENT AND RECENT LEGISLATIVE RE
EVALUATION OF THE FULL-CREW PROBLEM, BOTH AS THE STATE AND NATIONAL
LEVELS, THE RAILROADS NOW ASK US TO DETERMINE AS A JUDICIAL MATTER THAT
THESE LAWS NO LONGER MAKE A SIGNIFICANT CONTRIBUTION TO SAFETY AND SO
SERIOUSLY BURDEN THE RAILROADS IN THEIR OPERATIONS THAT THEY SHOULD NO
LONGER STAND UNDER THE COMMERCE CLAUSE.  THE ESSENCE OF THE RAILROADS'
POSITION IS THAT THE REQUIREMENT OF ADDITIONAL CREWMEN AMOUNTS TO
NOTHING MORE THAN FEATHERBEDDING.  THEY CLAIM THAT THE FIREMEN ONCE
NEEDED TO TEND THE FURNACES ON STEAM LOCOMOTIVES ARE NOT NECESSARY ON
THE DIESEL ENGINES NOW GENERALLY IN USE.  ALTHOUGH THE RAILROADS
RECOGNIZE THAT THE FIREMAN PERFORMS A VALUABLE LOOKOUT FUNCTION ON
PASSENGER TRAINS, WHERE HE AND THE ENGINEER ARE THE ONLY CREWMEN IN THE
ENGINE CAB, THEY ASSERT THAT IN BOTH FREIGHT HAULING OPERATIONS AND
YARD SWITCHING OPERATIONS OTHER RAILROAD EMPLOYEES ARE AVAILABLE TO
PROVIDE AN ADEQUATE LOOKOUT AND ASSIST THE ENGINEER IN CORRECTING
MECHANICAL PROBLEMS AND PERFORMING OTHER MISCELLANEOUS DUTIES.  THE
RAILROADS THUS MAINTAIN THAT THE FIREMEN, AND SOME OF THE OTHER
REQUIRED CREWMEN, PERFORM NO USEFUL FUNCTION AND MAKE NO SIGNIFICANT
CONTRIBUTION TO SAFETY.  AT THE SAME TIME, THE RAILROADS CONTEND, THE
FULL-CREW REQUIREMENTS SUBSTANTIALLY INCREASE THEIR COST OF OPERATION,
HAMPERING THEIR ABILITY TO IMPROVE RAILROAD SERVICE AND TO COMPETE WITH
OTHER MODES OF TRANSPORTATION, AND ALSO BURDEN COMMERCE BY REQUIRING
INTERSTATE TRAINS PASSING THROUGH ARKANSAS TO SLOW DOWN OR STOP AT THE
BORDER TO PICK UP AND LET OFF THE EXTRA CREWMEN. 

THE STATE OF ARKANSAS AND THE RAILROAD BROTHERHOODS, ALL APPELLANTS
HERE, TAKE A DIFFERENT VIEW OF THE FUNCTIONS PERFORMED BY THE FIREMEN
AND OTHER ADDITIONAL CREWMEN REQUIRED UNDER THE STATUTES.  THEY CLAIM
THAT THE WORK PERFORMED BY THESE EMPLOYEES-- SERVING AS LOOKOUT,
PASSING SIGNALS, RELIEVING THE ENGINEER IN EMERGENCIES, INSPECTING THE
ENGINE AND OTHER CARS AND HELPING TO MAKE NEEDED ADJUSTMENTS AND
REPAIRS WHILE THE TRAIN IS MOVING-- IS STILL NECESSARY AND CANNOT BE
PERFORMED BY OTHER EMPLOYEES WITHOUT UNDULY BURDENING THEM AND
INTERFERING WITH THE PROPER PERFORMANCE OF THEIR OTHER TASKS. 
APPELLANTS ARGUE THAT ALTHOUGH SOME TECHNOLOGICAL IMPROVEMENTS HAVE
TENDED TO ELIMINATE SAFETY HAZARDS AND LIGHTEN THE WORK OF THE TRAIN
CREW, OTHER DEVELOPMENTS, SUCH AS THE INCREASED SIZE AND SPEED OF
TRAINS, THE HEAVIER AUTOMOBILE TRAFFIC OVER TRAIN CROSSINGS, AND THE
COMPETITIVE PRESSURES FOR FASTER SWITCHING OF TRAINS, HAVE HAD EXACTLY
THE OPPOSITE EFFECT. 

THE DISTRICT COURT ANALYZED THESE CONFLICTING CONTENTIONS AND THE
CONFLICTING EVIDENCE ADDUCED TO SUPPORT THEM AND CONCLUDED THAT THE
FULL-CREW REQUIREMENTS HAVE "NO SUBSTANTIAL EFFECT ON SAFETY OF
OPERATIONS."  THE COURT ALSO SAID THAT EVEN IF THESE REQUIREMENTS DID
ADD "SOME INCREMENT OF SAFETY TO THE OPERATION, WE THINK THAT SUCH AN
INCREMENT IS NEGLIGIBLE . . . AND NOT WORTH THE COST."  AS ADDITIONAL
FACTORS JUSTIFYING ITS CONCLUSION THAT THE LAWS CREATED AN
UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE, THE COURT EMPHASIZED
"THE FINANCIAL BURDEN OF COMPLIANCE, WHICH IS OUT OF ALL PROPORTION TO
THE BENEFIT, IF ANY, DERIVED, AND THE ADDED BURDEN INVOLVED IN THE
TAKING ON AND DISCHARGING MEN AT OR NEAR THE ARKANSAS STATE LINE.  . .
. " 

WE THINK IT PLAIN THAT IN STRIKING DOWN THE FULL-CREW LAWS ON THIS
BASIS, THE DISTRICT COURT INDULGED IN A LEGISLATIVE JUDGMENT WHOLLY
BEYOND ITS LIMITED AUTHORITY TO REVIEW STATE LEGISLATION UNDER THE
COMMERCE CLAUSE.  THE EVIDENCE AS TO THE NEED FOR FIREMEN AND OTHER
ADDITIONAL CREWMEN WAS CERTAINLY CONFLICTING AND TO A CONSIDERABLE
EXTENT INCONCLUSIVE.  MANY RAILROAD EMPLOYEES GAVE DIRECT TESTIMONY AS
TO INCIDENTS IN WHICH, FOR EXAMPLE, THE PRESENCE OF A FIREMAN AS A
LOOKOUT HELPED AVERT A SERIOUS ACCIDENT.  WITH RESPECT TO STATISTICAL
EVIDENCE AS TO THE EFFECT UPON SAFETY OF THE REDUCTIONS IN FORCE
AUTHORIZED BY THE BASIC AWARD AND BY THE AWARDS OF THE SPECIAL
ADJUSTMENT BOARDS (UNDER THE 1963 ARBITRATION) IS NOT ENTIRELY
SATISFACTORY EITHER WAY.  . . . "  INDEED, AS THE COURT BELOW
RECOGNIZED, THE STATISTICS SHOWED THAT RAILROAD ACCIDENTS HAD ACTUALLY
INCREASED DURING THE PERIOD FROM 1964-1966, WHEN THE SIZE OF TRAIN
CREWS WAS BEING REDUCED.  /11/ 

IT WOULD HARDLY BE POSSIBLE TO SUMMARIZE HERE ALL THE OTHER EVIDENCE
IN THE RECORD RELEVANT TO THE SAFETY QUESTION, AND, AS WE HAVE
INDICATED, IT IS WHOLLY UNNECESSARY TO DO SO.  A BRIEF SUMMARY OF SOME
OF THE FINDINGS OF ARBITRATION BOARD NO. 282, THE PANEL SET UP PURSUANT
TO PUB. L. 88-108, SHOULD SUFFICE TO SHOW THAT THE QUESTION OF SAFETY
IS CLEARLY ONE FOR LEGISLATIVE DETERMINATION.  IN QUOTING FROM THIS
REPORT, OF COURSE, WE IN NO WAY INTEND TO INDICATE THAT THE DISTRICT
COURT SHOULD HAVE ACCEPTED ANY OF ITS SPECIFIC CONCLUSIONS OR THAT THIS
EVIDENCE WAS NECESSARILY ANY MORE PERSUASIVE THAN ANY OF THE MANY OTHER
SOURCES OF INFORMATION ABOUT THE PROBLEM.  WE SINGLE IT OUT ONLY
BECAUSE IT IS ONE OF THE MORE RECENT REPORTS AND BECAUSE IT WAS HEAVILY
RELIED UPON BY THE DISTRICT COURT AND BY THE RAILROADS THEMSELVES.  THE
BOARD STATED AS ITS VERY FIRST FINDING: 

     "1.  THE RECORD CONTAINS NO EVIDENCE TO SUPPORT THE CHARGE,

  FREQUENTLY AND IRRESPONSIBLY MADE, THAT FIREMEN PRESENTLY

  EMPLOYED IN ROAD FREIGHT AND YARD SERVICE THROUGHOUT THE COUNTRY

  ARE BEING PAID TO DO NOTHING AND ACTUALLY PERFORM NO USEFUL

  WORK." 

THE BOARD THEN WENT ON TO DEAL SPECIFICALLY WITH THE VARIOUS FUNCTIONS
FOR WHICH FIREMEN WERE CLAIMED TO BE NECESSARY.  IT CONCLUDED THAT
FIREMEN WERE NOT NECESSARY TO PERFORM THE LOOKOUT FUNCTION IN "THE
GREAT MAJORITY OF CASES" AND THAT THEY WERE NOT NEEDED TO PERFORM
CERTAIN MECHANICAL DUTIES.  THE BOARD ALSO HELD, HOWEVER, THAT IN ORDER
TO INSURE RELIEF OF AN ENGINEER WHO BECOMES INCAPACITATED WHILE
OPERATING THE TRAIN, FIREMEN WERE CLEARLY NECESSARY IN YARD SERVICE ON
ENGINES THAT WERE NOT EQUIPPED WITH A FULLY OPERATIVE DEAD-MAN CONTROL,
AND THE RECORD BEFORE US IN THE PRESENT CASES INDICATES THAT A
SUBSTANTIAL PERCENTAGE OF THE ENGINES OPERATED IN ARKANSAS ARE NOT
EQUIPPED WITH THIS DEVICE.  ALTHOUGH THE BOARD THUS THOUGHT THAT
FIREMEN COULD BE ELIMINATED IN MOST CASES, THE BOARD EMPHASIZED: 
"(WE ARE SATISFIED THAT A CERTAIN NUMBER OF SUCH ASSIGNMENTS REQUIRE
THE CONTINUED EMPLOYMENT OF FIREMEN IN ORDER TO PREVENT EXCESSIVE
SAFETY HAZARD TO LIVES AND PROPERTY, TO AVOID IMPOSING AN UNDUE BURDEN
UPON THE REMAINING CREW MEMBERS, AND TO ASSURE ADEQUATE AND SAFE
TRANSPORTATION SERVICE TO THE PUBLIC."  FINALLY, AND MOST SIGNIFICANT,
THE BOARD ITSELF STRESSED IN CONCLUSION THE SUBJECTIVE NATURE OF ITS
FINDINGS WITH REFERENCE TO SAFETY: 

"SAFETY IS, OF COURSE, ESSENTIALLY A RELATIVE CONCEPT; ONCE ADEQUATE
MINIMUM STANDARDS HAVE BEEN ACHIEVED, THE DECISION AS TO HOW MUCH MORE
SAFETY IS REQUIRED MUST NECESSARILY BE GOVERNED BY ALL THE ACCOMPANYING
CIRCUMSTANCES.  RAILROADING IS, UNFORTUNATELY, A HAZARDOUS OCCUPATION,
AND THE PROBLEM BEFORE US CANNOT BE VIEWED SIMPLY IN TERMS OF
PREVENTING OR NOT PREVENTING ACCIDENTS."  THIS SUMMARY, TAKEN FROM
EVIDENCE HEAVILY RELIED UPON BY THE RAILROADS AND GENERALLY FAVORABLE
TO THEIR PSOITION, LEAVES LITTLE ROOM FOR DOUBT THAT THE QUESTION OF
SAFETY IN THE CIRCUMSTANCES OF THIS CASE IS ESSENTIALLY A MATTER OF
PUBLIC POLICY, AND PUBLIC POLICY CAN, UNDER OUR CONSTITUTIONAL SYSTEM,
BE FIXED ONLY BY THE PEOPLE ACTING THROUGH THEIR ELECTED
REPRESENTATIVES.  THE DISTRICT COURT'S RESPONSIBILITY FOR MAKING
"FINDINGS OF FACT" CERTAINLY DOES NOT AUTHORIZE IT TO RESOLVE CONFLICTS
IN THE EVIDENCE AGAINST THE LEGISLATURE'S CONCLUSION OR EVEN TO REJECT
THE LEGISLATIVE JUDGMENT ON THE BASIS THAT WITHOUT CONVINCING
STATISTICS IN THE RECORD TO SUPPORT IT, THE LEGISLATIVE VIEWPOINT
CONSTITUTES NOTHING MORE THAN WHAT THE DISTRICT COURT IN THIS CASE SAID
WAS "PURE SPECULATION." 

OF THE OTHER MATTERS RELIED UPON BY THE DISTRICT COURT, THE PROBLEM OF
DELAY AT THE STATE BORDERS APPARENTLY HAS NOT CHANGED APPRECIABLY SINCE
THE DAYS OF THIS COURT'S EARLIEST FULL-CREW DECISIONS, AND THIS COURT'S
STATEMENT OF THE INSIGNIFICANCE OF THE PROBLEM IN SOUTHERN PACIFIC CO.
V. ARIZONA, 325 U.S. 761, 782 (1945), IS EQUALLY VALID TODAY: 

"WHILE THE FULL TRAIN CREW LAWS UNDOUBTEDLY PLACED AN ADDED
FINANCIAL BURDEN ON THE RAILROADS IN ORDER TO SERVE A LOCAL INTEREST,
THEY DID NOT OBSTRUCT INTERSTATE TRANSPORTATION OR SERIOUSLY IMPEDE IT.
THEY HAD NO EFFECTS OUTSIDE THE STATE BEYOND THOSE OF PICKING UP AND
SETTING DOWN THE EXTRA EMPLOYEES AT THAT STATE BOUNDARIES; THEY
INVOLVED NO WASTED USE OF FACILITIES OR SERIOUS IMPAIRMENT OF
TRANSPORTATION EFFICIENCY.  . . . " NOR WAS IT OPEN TO THE DISTRICT
COURT TO PLACE A VALUE ON THE ADDITIONAL SAFETY IN TERMS OF DOLLARS AND
CENTS, IN ORDER TO SEE WHETHER THIS VALUE, AS CALCULATED BY THE COURT,
EXCEEDED THE FINANCIAL COST TO THE RAILROADS.  /12/  AS WE SAID IN BIBB
V. NAVAJO FREIGHT LINES, 359 U.S. 520 (1959), WHERE THE DISTRICT COURT
HAD STRUCK DOWN AN ILLINOIS LAW REQUIRING TRUCKS TO BE EQUIPPED WITH
CONTOUR MUDGUARDS, ON THE GROUND THAT THE EQUIPMENT HAD NO SAFETY
ADVANTAGES AND WAS VERY COSTLY TO INSTALL AND MAINTAIN: 

"COST TAKEN INTO CONSIDERATION WITH OTHER FACTORS MIGHT BE RELEVANT
IN SOME CASES TO THE ISSUE OF BURDEN ON COMMERCE.  BUT IT HAS ASSUMED
NO SUCH PROPORTIONS HERE.  IF WE HAD HERE ONLY A QUESTION WHETHER THE
COST OF ADJUSTING AN INTERSTATE OPERATION TO THESE NEW LOCAL SAFETY
REGULATIONS PRESCRIBED BY ILLINOIS UNDULY BURDENED INTERSTATE COMMERCE,
WE WOULD HAVE TO SUSTAIN THE LAW UNDER THE AUTHORITY OF THE SPROLES
(286 U.S. 374 (1932)), BARNWELL (303 U.S. 177 (1938)), AND MAURER (309
U.S. 598 (1940)) CASES.  THE SAME RESULT WOULD OBTAIN IF WE HAD TO
RESOLVE THE MUCH DISCUSSED ISSUES OF SAFETY PRESENTED IN THIS CASE." 
ID., AT 526.  /13/ IT IS DIFFICULT AT BEST TO SAY THAT FINANCIAL LOSSES
SHOULD BE BALANCED AGAINST THE LOSS OF LIVES AND LIMBS OF WORKERS AND
PEOPLE USING THE HIGHWAYS.  WE CERTAINLY CANNOT DO SO ON THIS SHOWING. 

       II. 

WE DEAL NEXT WITH THE CONTENTION THAT BECAUSE OF THE MILEAGE
EXEMPTION, THE FULL-CREW LAWS DISCRIMINATE AGAINST INTERSTATE COMMERCE
IN FAVOR OF INTRASTATE COMMERCE.  THIS CONTENTION, LIKE THE RAILROADS'
OTHER CLAIMS, WAS OF COURSE SPECIFICALLY REJECTED IN THIS COURT'S
EARLIER DECISIONS DEALING WITH THESE SAME ARKANSAS STATUTES.  WE NOTED
IN OUR PRIOR OPINION IN THE PRESENT CASES THAT THE EFFECT OF THE
MILEAGE EXEMPTIONS WAS TO FREE ALL OF THE STATE'S 17 INTRASTATE
RAILROADS FROM THE COVERAGE OF THE ACTS, WHILE 10 OF THE 11 INTERSTATE
RAILROADS ARE SUBJECT TO THE 1907 ACT, AND EIGHT OF THEM ARE SUBJECT TO
THE 1913 ACT.  WE WENT ON TO SAY, HOWEVER, THAT THE DIFFERENCE IN
TREATMENT BASED ON DIFFERING TRACK MILEAGE MIGHT HAVE A RATIONAL BASIS,
AND WE THEREFORE HELD THAT THE MILEAGE CLASSIFICATION COULD NOT, "ON
THE RECORD NOW BEFORE US," BE CONSIDERED A DISCRIMINATION IN VIOLATION
OF THE COMMERCE AND EQUAL PROTECTION CLAUSES.  382 U.S.,AT 437. 

DESPITE THE EXTENSIVE TESTIMONY AND EXHIBITS ADDED TO THE RECORD
SINCE OUR PREVIOUS CONSIDERATION OF THESE CASES, WE HAVE FOUND NO BASIS
FOR ALTERING OUR CONCLUSION THAT THE MILEAGE CLASSIFICATION IS
PERMISSIBLE.  THE RAILROADS ARGUE THAT THE EXTRA MEN, IF NEEDED AT ALL,
ARE EQUALLY NECESSARY ON ALL TRAINS, REGARDLESS OF WHETHER THE COMPANY
OPERATING THEM HAPPENS TO OWN A MORE OR A LESS EXTENSIVE SYSTEM OF
TRACK.  BUT EVIDENCE IN THE RECORD ESTABLISHES A NUMBER OF LEGITIMATE
REASONS FOR THE MILEAGE EXEMPTION.  IN THE CASE OF AT LEAST ONE OF THE
SHORT-LINE ROADS, THE MAXIMUM SPEED FOR TRAINS RUNNING OVER ITS MAIN
TRACK IS 35 MILES PER HOUR, WHILE TRAINS MOVING OVER THE LONGER LINES
HAVE SPEED LIMITS OF 65 AND IN SOME CASES 75 MILES PER HOUR.  THE
APPARENT USE OF MUCH SLOWER TRAINS OVER THE SHORT LINES CERTAINLY
PROVIDES A BASIS UPON WHICH THE ARKANSAS LEGISLATURE COULD CONCLUDE
THAT THE HAZARDS ENCOUNTERED IN LINE-HAUL OPERATIONS ARE LESS SERIOUS,
AND ACCORDINGLY THAT THE NEED FOR REGULATION IS LESS PRESSING, ON THE
SHORT LINES.  SIMILARLY IN CONNECTION WITH THE SWITCHING OPERATIONS,
THERE WAS EVIDENCE THAT THE USEFULNESS OF ADDITIONAL EMPLOYEES DEPENDS
TO SOME EXTENT ON THE LENGTH OF THE TRAIN BEING SWITCHED, ANOTHER
FACTOR THAT-- LIKE SPEED-- TENDS TO VARY ACCORDING TO THE RAILROAD'S
TOTAL TRACKAGE.  FINALLY, THE LEGISLATURE COULD ALSO CONCLUDE THAT THE
SMALLER RAILROADS WOULD BE LESS ABLE TO BEAR THE COST OF ADDITIONAL
CREWMEN, EVEN THOUGH THE TOTAL ADDITIONAL COST WOULD OF COURSE TEND TO
BE SMALLER IN THE CASE OF THE SMALLER COMPANIES. 

ALTHOUGH THE RAILROADS CLAIM THAT OTHER CRITERIA COULD PROVIDE A
MORE PRECISE TEST OF THE SITUATIONS WHERE A LARGER CREW IS DESIRABLE,
THESE OTHER STANDARDS HAVE INADEQUACIES OF THEIR OWN, AND ARE FOR THE
MOST PART FAR TOO VAGUE TO PROVIDE A BASIS FOR A STATUTORY
CLASSIFICATION.  AND IN ANY EVENT THE COURTS MAY NOT FORCE A STATE
LEGISLATURE TO ATTAIN SCIENTIFIC PERFECTION IN DETERMINING THE COVERAGE
OF STATUTES OF THIS TYPE.  AS WE STRESSED IN THE BIBB CASE, 359 U.S.,AT
524: 

     "THESE SAFETY MEASURES CARRY A STRONG PRESUMPTION OF VALIDITY

  WHEN CHALLENGED IN COURT.  IF THERE ARE ALTERNATIVE WAYS OF

  SOLVING A PROBLEM, WE DO NOT SIT TO DETERMINE WHICH OF THEM IS

  BEST SUITED TO ACHIEVE A VALID STATE OBJECTIVE.  POLICY DECISIONS

  ARE FOR THE STATE LEGISLATURE, ABSENT FEDERAL ENTRY INTO THE

  FIELD." 

MILEAGE CLASSIFICATIONS HAVE REPEATEDLY BEEN UPHELD ON THIS BASIS, NOT
ONLY IN THIS COURT'S PREVIOUS DECISIONS DEALING WITH THESE VERY
STATUTES BUT IN MANY OTHER CASES INVOLVING SIMILAR PROBLEMS.  SEE,
E.G., NEW YORK, N.H. & H.R. CO. V. NEW YORK, 165 U.S. 629 (1897). 
NOTHING SUGGESTS THAT FULL-CREW LAWS SHOULD NOW BE TREATED
DIFFERENTLY. 

        III. 

THERE REMAINS FOR CONSIDERATION ONLY THE RAILROADS' CONTENTION THAT
THE ARKANSAS LAWS VIOLATE THE DUE PROCESS AND EQUAL PROTECTION CLAUSES
OF THE FOURTEENTH AMENDMENT.  LITTLE NEED BE SAID OF THE CLAIM THAT THE
STATUTES VIOLATE THE EQUAL PROTECTION CLAUSE FOR THE REASON THAT THEY
DISCRIMINATE AGAINST THE RAILROAD INDUSTRY BY SINGLING IT OUT FOR
REGULATION AND MAKING NO PROVISION FOR MINIMUM CREWS ON "MOTOR BUSES,
TAXICABS, AIRPLANES, BARGES, CARGO TRUCKS, OR ANY OTHER SEGMENT OF THE
TRANSPORTATION INDUSTRY."  THE STATUTES AS WRITTEN, REQUIRING, FOR
EXAMPLE, NOT "LESS THAN AN ENGINEER, A FIREMAN, A CONDUCTOR AND THREE
(3) BRAKEMEN," COULD SCARCELY BE EXTENDED IN THEIR PRESENT TERMS TO
SUCH MEANS OF TRANSPORTATION AS TAXICABS OR AIRPLANES.  NOR WAS THE
LEGISLATURE, IN ATTEMPTING TO DEAL WITH THE SAFETY PROBLEMS IN ONE
INDUSTRY, REQUIRED TO INVESTIGATE THE VARIOUS DIFFERING HAZARDS
ENCOUNTERED IN ALL COMPETING INDUSTRIES AND THEN TO ENACT ADDITIONAL
LEGISLATION TO MEET THESE DISTINCT PROBLEMS. 

THE RAILROADS ALSO ARGUE THAT THE STATUTES VIOLATE THE DUE PROCESS
CLAUSE BECAUSE THEY ARE "UNDULY OPPRESSIVE" AND IMPOST COSTS ON THE
REGULATED INDUSTRY THAT EXCEED THE PUBLIC BENEFITS OF THE REGULATION. 
THE DISTRICT COURT AGREED WITH THIS POSITION, HOLDING THAT THE IMPACT
OF THE FULL-CREW LAWS TODAY IS "UNREASONABLE AND OPPRESSIVE" AND
THEREFORE A VIOLATION OF DUE PROCESS.  INSOFAR AS THESE ARGUMENTS SEEK
TO PRESENT AN INDEPENDENT BASIS FOR INVALIDATING THE LAWS, APART FROM
ANY EFFECT ON INTERSTATE COMMERCE, WE THINK, WITH ALL DUE DEFERENCE TO
APPELLEES AND THE DISTRICT COURT, THAT THESE CONTENTIONS REQUIRE NO
FURTHER CONSIDERATION.  FERGUSON V. SKRUPA, 372 U.S. 726 (1963);
WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483 (1955); OLSEN V. NEBRASKA,
313 U.S. 236 (1941); WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379
(1937); NEBBIA V. NEW YORK, 291 U.S. 502 (1934). 

        IV. 

UNDER ALL THE CIRCUMSTANCES WE SEE NO REASON TO DEPART FROM THIS
COURT'S PREVIOUS DECISIONS HOLDING THAT THE ARKANSAS FULL-CREW DO NOT
UNDULY BURDEN INTERSTATE COMMERCE OR OTHERWISE VIOLATE THE
CONSTITUTION.  UNDOUBTEDLY HEATED DISPUTES WILL CONTINUE AS TO THE
EXTENT TO WHICH THESE LAWS CONTRIBUTE TO SAFETY AND OTHER PUBLIC
INTERESTS, AND THE EXTENT TO WHICH SUCH CONTRIBUTIONS ARE JUSTIFIED BY
THE COST OF THE ADDITIONAL MANPOWER.  THESE DISPUTES WILL CONTINUE TO
BE WORKED OUT IN THE LEGISLATURES AND IN VARIOUS FORMS OF COLLECTIVE
BARGAINING BETWEEN MANAGEMENT AND THE UNIONS.  AS WE HAVE SAID MANY
TIMES, CONGRESS UNQUESTIONABLY HAS POWER UNDER THE COMMERCE CLAUSE TO
REGULATE THE NUMBER OF EMPLOYEES WHO SHALL BE USED TO MAN TRAINS USED
IN INTERSTATE COMMERCE.  IN THE ABSENCE OF CONGRESSIONAL ACTION,
HOWEVER, WE CANNOT INVOKE THE JUDICIAL POWER TO INVALIDATE THIS
JUDGMENT OF THE PEOPLE OF ARKANSAS AND THEIR ELECTED REPRESENTATIVES AS
TO THE PRICE SOCIETY SHOULD PAY TO PROMOTE SAFETY IN THE RAILROAD
INDUSTRY.  THE JUDGMENT OF THE DISTRICT COURT IS REVERSED, AND THE
CASES ARE REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE
COMPLAINT. 

              IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 18, HARDIN, PROSECUTING ATTORNEY, ET AL. V.
CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. ET AL., ON APPEAL FROM THE
SAME COURT. 

/1/  CHICAGO, R.I. & P.R. CO. V. ARKANSAS, 219 U.S. 453 (1911); ST.
L., I.M. & S.R. CO. V. ARKANSAS, 240 U.S. 518 (1916); MISSOURI PAC. R.
CO. V. NORWOOD, 283 U.S. 249 (1931), 290 U.S. 600 (1933).  THE COURT'S
HOLDINGS IN THESE CASES WERE ALSO REAFFIRMED, IN DICTUM, IN SOUTHERN
PACIFIC CO. V. ARIZONA, 325 U.S. 761, 782 (1945). 

/2/  ARK. LAWS 1907, ACT 116, ARK. STAT. ANN. SECS. 73-720 THROUGH
73-722 (1957 REPL.  VOL.). 

/3/  ARK. LAWS 1913, ACT 67, ARK. STATE.  ANN.  SECS. 73-726
THROUGHT 73-729 (1957 REPL.  VOL.). 

/4/  77 STAT. 132, 45 U.S.C. FOLLOWING SEC. 157. 

/5/  THE LONG AND TROUBLESOME HISTORY OF THIS ASPECT OF THE DISPUTE
IS BRIEFLY SUMMARIZED IN OUR PRIOR OPINION IN THESE CASES, 382 U.S.,AT
430-432. 

/6/  SEE, E.G., ARK. STAT. ANN. SECS. 73-704 THROUGH 73-706; 73-718,
73-719 (1957 REPL.  VOL.). 

/7/  THE APPROACH TAKEN IN OTHER STATES IS SUMMARIZED IN THE OPINION
OF THE DISTRICT COURT IN THESE CASES, 274 F.SUPP.,AT 299. 

/8/  SEE NEW YORK CENTRAL R. CO. V. LEFKOWITZ, 23 N.Y.2D 1, 241
N.E.2D 730 (1968). 

/9/  E.G., ARK. LAWS 1951, ACT 253, ARK. STAT. ANN. SEC. 73-740
(1957 REPL.  VOL.); ARK. LAWS 1953, ACT 130, ARK. STAT. ANN. SECS. 73
741 THROUGH 73-744 (1957 REPL.  VOL.). 

/10/  E.G., ARK. LAWS 1965, ACT 501, ARK. STAT. ANN. SEC. 73-730
(SUPP. 1967). 

/11/  THE DISTRICT COURT DEALT WITH THIS FACT BY SIMPLY STATING THAT
THIS TREND HAD BEEN OBSERVED IN YEARS PRECEDING THE EFFECTIVE DATE OF
THE ARBITRATION AWARD AND CONCLUDING:  "WHY ACCIDENT RATES HAVE BEEN
INCREASING WE DO NOT KNOW WITH CERTAINTY, BUT IT WOULD BE PURE
SPECULATION TO SAY THAT CREW SIZE HAS HAD ANYTHING TO DO WITH IT." 

/12/  THE RECORD CONTAINS NO MEANINGFUL ESTIMATE OF WHAT THIS COST
ACTUALLY IS.  THE RAILROADS COMPUTED THE TOTAL WAGES PAID PER YEAR TO
THE ALLEGEDLY UNNECESSARY EMPLOYEES AND CLAIMED THAT THIS TOTAL FIGURE,
$7,600,000, REPRESENTS THE COST OF COMPLIANCE.  BUT IS WAS ADMITTED
THAT THE NET COST IS ACTUALLY LOWER THAN THIS BECAUSE ELIMINATION OF
THE ADDITIONAL CREWMEN WOULD CREATE NEW EXPENSES, SUCH AS THE SPECIAL
COMPENSATORY ALOWANCE PAID TO ENGINEERS WHO OPERATE WITHOUT THE
ASSISTANCE OF A FIREMAN, ADDITIONAL OVERTIME PAY, AND OTHER COSTS
ASSOCIATED WITH SOMEWHAT SLOWER OPERATIONS IN TERMINALS AND EN ROUTE. 
THE RAILROADS INTRODUCED NO EVIDENCE TO INDICATE THE APPROXIMATE AMOUNT
OF SUCH NEW EXPENSES, AND WE HAVE NO WAY OF KNOWING WHETHER, AS
APPELLANTS CLAIM, THESE EXPENSES WOULD TO A SUBSTANTIAL EXTENT OFFSET
THE WAGE SAVINGS ASSOCIATED WITH THE REDUCTION IN CREW SIZE. 

/13/  ALTHOUGH WE STRUCK DOWN THE ILLINOIS LAW IN BIBB, WE DID SO ON
THE CAREFULLY LIMITED BASIS THAT THE CONTOUR MUDGUARD REQUIREMENT
FLATLY CONFLICTED WITH LAWS, ENFORCED IN AT LEAST ONE OTHER STATE, THAT
TRUCKS MUST BE EQUIPPED WITH STRAIGHT MUDGUARDS.     MR. JUSTICE FORTAS
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD AGREE WITH THE COURT THAT IF THE CONSTITUTIONALITY OF THESE
ARKANSAS LAWS WERE TO BE JUDGED AS SAFETY MEASURES UNDER THE STATE'S
POLICE POWER, THEY WOULD HAVE TO BE SUSTAINED.  BUT AS I INDICATED IN
MY DISSENT IN ENGINEERS V. CHICAGO, R.I. & P.R. CO., 382 U.S. 423, 438,
CONGRESS IN ENACTING PUB. L. 88-108, 77 STAT. 132, UNDERTOOK TO
DISPLACE STATE "FULL-CREW" LAWS BY DELEGATING POWER TO A NATIONAL
ARBITRATION BOARD TO DETERMINE FOR EXAMPLE, THE NECESSITY OF FIREMEN ON
DIESEL FREIGHTS AND THE MINIMUM SIZE OF TRAIN AND SWITCHING CREWS. 

I WOULD, THEREFORE, REMAND THE CASES TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS CONSISTENT WITH PUB. L. 88-108 AND THE AWARDS THAT
HAVE BEEN MADE UNDER IT. 

JAMES E. YOUNGDAHL ARGUED THE CAUSE FOR APPELLANTS IN NO. 16. 
LESLIE EVITTS, CHIEF ASSISTANT ATTORNEY GENERAL OF ARKANSAS, ARGUED THE
CAUSE FOR APPELLANTS IN NO. 18.  WITH THEM ON THE BRIEFS WERE JOE
PURCELL, ATTORNEY GENERAL OF ARKANSAS, ROBERT D. ROSS, AND JOHN P.
SIZEMORE. 

ROBERT V. LIGHT AND MARTIN M. LUCENTE ARGUED THE CAUSE FOR APPELLEES
IN BOTH CASES.  WITH THEM ON THE BRIEF WERE W. J. SMITH, H. H. FRIDAY,
AND R. W. YOST. 
..END :








COMMONWEALTH CORP. V. CASUALTY CO., 393 U.S. 145 


       COMMONWEALTH COATINGS CORP. V. CONTINENTAL CASUALTY CO. ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT. 

        NO. 14.  ARGUED OCTOBER 22, 1968.-- DECIDED NOVEMBER 18,

           1968. 


PETITIONER, A SUBCONTRACTOR, SUED THE SURETIES ON THE PRIME
CONTRACTOR'S BOND TO RECOVER MONEY ALLEGEDLY DUE FOR A PAINTING JOB. 
PURSUANT TO THE ARBITRATION PROVISION IN THE CONSTRACT, PETITIONER
APPOINTED AN ARBITRATOR, THE PRIME CONTRACTOR APPOINTED ANOTHER, AND
THESE TWO APPOINTED A THIRD.  THE THIRD ARBITRATOR WAS AN ENGINEERING
CONSULTANT WHOSE SERVICES WERE USED SPORADICALLY BY THE PRIME
CONTRACTOR, RESULTING IN FEES OF ABOUT $12,000 OVER A PERIOD OF FOUR TO
FIVE YEARS.  PETITIONER CHALLENGES THE ARBITRATION AWARD ON THE GROUND
THAT THIS CLOSE BUSINESS CONNECTION WAS NOT REVEALED UNTIL AFTER THE
AWARD WAS MADE.  THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S
REFUSAL TO SET ASIDE THE AWARD.  HELD:  ARBITRATORS SHOULD DISCLOSE TO
THE PARTIES ANY DEALINGS WHICH MIGHT CREATE AN IMPRESSION OF POSSIBLE
BIAS, AND SINCE THE BUSINESS CONNECTION BETWEEN THE ARBITRATOR AND THE
PRIME CONTRACTOR WAS NOT DISCLOSED HERE, THE AWARD CAN BE VACATED UNDER
SEC. 10 OF THE UNITED STATES ARBITRATION ACT, WHICH AUTHORIZES VACATION
OF AN AWARD "PROCURED BY . . . UNDUE MEANS" OR "WHERE THERE WAS EVIDENT
PARTIALLY . . . IN THE ARBITRATORS."  PP. 146-150. 

382 F.2D 1010, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AT ISSUE IN THIS CASE IS THE QUESTION WHETHER ELEMENTARY
REQUIREMENTS OF IMPARTIALITY TAKEN FOR GRANTED IN EVERY JUDICIAL
PROCEEDING ARE SUSPENDED WHEN THE PARTIES AGREE TO RESOLVE A DISPUTE
THROUGH ARBITRATION. 

THE PETITIONER, COMMONWEALTH COATINGS CORPORATION, A SUBCONTRACTOR,
SUED THE SURETIES ON THE PRIME CONTRACTOR'S BOND TO RECOVER MONEY
ALLEGED TO BE DUE FOR A PAINTING JOB.  THE CONTRACT FOR PAINTING
CONTAINED AN AGREEMENT TO ARBITRATE SUCH CONTROVERSIES.  PURSUANT TO
THIS AGREEMENT PETITIONER APPOINTED ON ARBITRATOR, THE PRIME CONTRACTOR
APPOINTED A SECOND, AND THESE TWO TOGETHER SELECTED THE THIRD
ARBITRATOR.  THIS THIRD ARBITRATOR, THE SUPPOSEDLY NEUTRAL MEMBER OF
THE PANEL, CONDUCTED A LARGE BUSINESS IN PUERTO RICO, IN WHICH HE
SERVED AS AN ENGINEERING CONSULTANT FOR VARIOUS PEOPLE IN CONNECTION
WITH BUILDING CONSTRUCTION PROJECTS.  ONE OF HIS REGULAR CUSTOMERS IN
THIS BUS2NESS WAS THE PRIME CONTRACTOR THAT PETITIONER SUED IN THIS
CASE.  THIS RELATIONSHIP WITH THE PRIME CONTRACTOR WAS IN A SENSE
SPORADIC IN THAT THE ARBITRATOR'S SERVICES WERE USED ONLY FROM TIME TO
TIME AT IRREGULAR INTERVALS, AND THERE HAD BEEN NO DEALINGS BETWEEN
THEM FOR ABOUT A YEAR IMMEDIATELY PRECEDING THE ARBITRATION. 
NEVERTHELESS, THE PRIME CONTRACTOR'S PATRONAGE WAS REPEATED AND
SIGNIFICANT, INVOLVING FEES OF ABOUT $12,000 OVER A PERIOD OF FOUR OR
FIVE YEARS, AND THE RELATIONSHIP EVEN WEN SO FAR AS TO INCLUDE THE
RENDERING OF SERVICES ON THE VERY PROJECTS INVOLVED IN THIS LAWSUIT. 
AN ARBITRATION WAS HELD, BUT THE FACTS CONCERNING THE CLOSE BUSINESS
CONNECTIONS BETWEEN THE THIRD ARBITRATOR AND THE PRIME CONTRACTOR, OR
BY ANYONE ELSE UNTIL AFTER AN AWARD HAD BEEN MADE.  PETITIONER
CHALLENGED THE AWARD ON THIS GROUND, AMONG OTHERS, BUT THE DISTRICT
COURT REFUSED TO SET ASIDE THE AWARD.  THE COURT OF APPEALS AFFIRMED,
382 F.2D 1010 (C.A. 1ST CIR. 1967), AND WE GRANTED CERTIORARI, 390 U.S.
979 (1968). 

IN 1925 CONGRESS ENACTED THE UNITED STATES ARBITRATION ACT, 9 U.S.C.
1-14, WHICH SETS OUT A COMPREHENSIVE PLAN FOR ARBITRATION OF
CONTROVERSIES COMING UNDER ITS TEMS, AND BOTH SIDES HERE ASSUME THAT
THIS FEDERAL ACT GOVERNS THIS CASE.  SECTION 10, QUOTED BELOW, SETS OUT
THE CONDITIONS UPON WHICH AWARDS CAN BE VACATED.  /1/  THE TWO COURTS
BELOW HELD, HOWEVER, THAT SEC. 10 COULD NOT BE CONSTRUED IN SUCH A WAY
AS TO JUSTIFY VACATING THE AWARD IN THIS CASE.  WE DISAGREE AND
REVERSE.  SECTION 10 DOES AUTHORIZE VACATION OF AN AWARD WHERE IT WAS
"PROCURED BY CORRUPTION, FRAUD, OR UNDUE MEANS" OR "(WHERE THERE WAS
EVIDENT PARTIALITY . . . IN THE ARBITRATORS."  THESE PROVISIONS SHOW A
DESIRE OF CONGRESS TO PROVIDE NOT MERELY FOR ANY ARBITRATION BUT FOR AN
IMPARTIAL ONE.  IT IS TRUE THAT PETITIONER DOES NOT CHARGE BEFORE US
THAT THE THIRD ARBITRATOR WAS ACTUALLY GUILTY OF FRAUD OR BIAS IN
DECIDING THIS CASE, AND WE HAVE NO REASON APART FROM THE UNDISCLOSED
BUSINESS RELATIONSHIP, TO SUSPECT HIM OF ANY IMPROPER MOTIVES.  BUT
NEITHER THIS ARBITRATOR NOR THE PRIME CONTRACTOR GAVE TO PETITIONER
EVEN AN INTIMATION OF THE CLOSE FINANCIAL RELATIONS THAT HAD EXISTED
BETWEEN THEM FOR A PERIOD OF YEARS.  WE HAVE NO DOUBT THAT IF A
LITIGANT COULD SHOW THAT A FOREMAN OF A JURY OR A JUDGE IN A COURT OF
JUSTICE HAD, UNKNOWN TO THE LITIGANT, ANY SUCH RELATIONSHIP, THE
JUDGMENT WOULD BE SUBJECT TO CHALLENGE.  THIS IS SHOWN BEYOND DOUBT BY
TUMEY V. OHIO, 273 U.S. 510 (1927), WHERE THIS COURT HELD THAT A
CONVICTION COULD NOT STAND BECAUSE A SMALL PART OF THE JUDGE'S INCOME
CONSISTED OF COURT FEES COLLECTED FROM CONVICTED DEFENDANTS.  ALTHOUGH
IN TUMEY IT APPEARED THE AMOUNT OF THE JUDGE'S COMPENSATION ACTUALLY
DEPENDED ON WHETHER HE DECIDED FOR ONE SIDE OR THE OTHER, THAT IS TOO
SMALL A DISTINCTION TO ALLOW THIS MANIFEST VIOLATION OF THE STRICT
MORALITY AND FAIRNESS CONGRESS WOULD HAVE EXPECTED ON THE PART OF THE
ARBITRATOR AND THE OTHER PARTY IN THIS CASE.  NOR SHOULD IT BE AT ALL
RELEVANT, AS THE COURT OF APPEALS APPARENTLY THOUGHT IT WAS HERE, THAT
"(THE PAYMENTS RECEIVED WERE A VERY SMALL PART OF (THE ARBITRATOR'S)
INCOME.  . . . "  /2/  FOR IN TUMEY THE COURT HELD THAT A DECISION
SHOULD BE SET ASIDE WHERE THERE IS "THE SLIGHTEST PECUNIARY INTEREST"
ON THE PART OF THE JUDGE, AND SPECIFICALLY REJECTED THE STATE'S
CONTENTION THAT THE COMPENSATION INVOLVED THERE WAS "SO SMALL THAT IT
IS NOT TO BE REGARDED AS LIKELY TO INFLUENCE IMPROPERLY A JUDICIAL
OFFICER IN THE DISCHARGE OF HIS DUTY.  . . . "  /3/    DUTY.  . . . "
/3/  SINCE IN THE CASE OF COURTS THIS IS A CONSTITUTIONAL PRINCIPLE, WE
CAN SEE NO BASIS FOR REFUSING TO FIND THE SAME CONCEPT IN THE BROAD
STATUTORY LANGUAGE THAT GOVERNS ARBITRATION PROCEEDINGS AND PROVIDES
THAT AN AWARD CAN BE SET ASIDE ON THE BASIS OF "EVIDENT PARTIALITY" OR
THE USE OF "UNDUE MEANS."  SEE ALSO ROGERS V. SCHERING CORP., 165
F.SUPP.  295, 301 (D.C.N.J. 1958).  IT IS TRUE THAT ARBITRATORS CANNOT
SEVER ALL THEIR TIES WITH THE BUSINESS WORLD, SINCE THEY ARE NOT
EXPECTED TO GET ALL THEIR INCOME FROM THEIR WORK DECIDING CASES, BUT WE
SHOULD, IF ANYTHING, BE EVEN MORE SCRUPULOUS TO SAFEGUARD THE
IMPARTIALITY OF ARBITRATORS THAN JUDGES, SINCE THE FORMER HAVE
COMPLETELY FREE REIN TO DECIDE THE LAW AS WELL AS THE FACTS AND ARE NOT
SUBJECT TO APPELLATE REVIEW.  WE CAN PERCEIVE NO WAY IN WHICH THE
EFFECTIVENESS OF THE ARBITRATION PROCESS WILL BE HAMPERED BY THE SIMPLE
REQUIREMENT THAT ARBITRATORS DISCLOSE TO THE PARTIES ANY DEALINGS THAT
MIGHT CREATE AN IMPRESSION OF POSSIBLE BIAS. 

WHILE NOT CONTROLLING IN THIS CASE, SEC. 18 OF THE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION, IN EFFECT AT THE TIME OF THIS
ARBITRATION, IS HIGHLY SIGNIFICANT.  IT PROVIDED AS FOLLOWS: 

  "SECTION 18.  DISCLOSURE BY ARBITRATOR OF DISQUALIFICATION-- AT

  THE TIME OF RECEIVING HIS NOTICE OF APPOINTMENT, THE PROSPECTIVE

  ARBITRATOR IS REQUESTED TO DISCLOSE ANY CIRCUMSTANCES LIKELY TO

  CREATE A PRESUMPTION OF BIAS OR WHICH HE BELIEVES MIGHT

  DISQUALIFY HIM AS AN IMPARTIAL ARBITRATOR.  UPON RECEIPT OF SUCH

  INFORMATION, THE TRIBUNAL CLERK SHALL IMMEDIATELY DISCLOSE IT TO

  THE PARTIES, WHO IF WILLING TO PROCEED UNDER THE CIRCUMSTANCES

  DISCLOSED, SHALL, IN WRITING, SO ADVISE THE TRIBUNAL CLERK.  IF

EITHER PARTY DECLINES TO WAIVE THE PRESUMPTIVE DISQUALIFICATION,

  THE VACANCY THUS CREATED SHALL BE FILLED IN ACCORDANCE WITH THE

  APPLICABLE PROVISIONS OF THIS RULE." 

AND BASED ON THE SAME PRINCIPLE AS THIS ARBITRATION ASSOCIATION RULE IS
THAT PART OF THE 33D CANON OF JUDICIAL ETHICS WHICH PROVIDES: 

"33.  SOCIAL RELATIONS. 

     " . . . (A JUDGE) SHOULD, HOWEVER, IN PENDING OR PROSPECTIVE

  LITIGATION BEFORE HIM BE PARTICULARLY CAREFUL TO AVOID SUCH

  ACTION AS MAY REASONABLY TEND TO AWAKEN THE SUSPICION THAT HIS

  SOCIAL OR BUSINESS RELATIONS OR FRIENDSHIPS, CONSTITUTE AN

  ELEMENT IN INFLUENCING HIS JUDICIAL CONDUCT." 

THIS RULE OF ARBITRATION AND THIS CANON OF JUDICIAL ETHICS REST ON
THE PREMISE THAT ANY TRIBUNAL PERMITTED BY LAW TO TRY CASES AND
CONTROVERSIES NOT ONLY MUST BE UNBIASED BUT ALSO MUST AVOID EVEN THE
APPEARANCE OF BIAS.  WE CANNOT BELIEVE THAT IT WAS THE PURPOSE OF
CONGRESS TO AUTHORIZE LITIGANTS TO SUBMIT THEIR CASES AND CONTROVERSIES
TO ARBITRATION BOARDS THAT MIGHT REASONABLY BE THOUGHT BIASED AGAINST
ONE LITIGANT AND FAVORABLE TO ANOTHER. 

        REVERSED. 

/1/  "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." 

/2/ 382 F.2D,AT 1011. 

/3/  273 U.S.,AT 524. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING. 

WHILE I AM GLAD TO JOIN MY BROTHER BLACK'S OPINION IN THIS CASE, I
DESIRE TO MAKE THESE ADDITIONAL REMARKS.  THE COURT DOES NOT DECIDE
TODAY THAT ARBITRATORS ARE TO BE HELD TO THE STANDARDS OF JUDICIAL
DECORUM OF ARTICLE III JUDGES, OR INDEED OF ANY JUDGES.  IT IS OFTEN
BECUASE THEY ARE MEN OF AFFAIRS, NOT APART FROM BUT OF THE MARKETPLACE,
THAT THEY ARE EFFECTIVE IN THEIR ADJUDICATORY FUNCTION.  CF. UNITED
STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574 (1960). 
THIS DOES NOT MEAN THE JUDICIARY MUST OVERLOOK OUTRIGHT CHICANERY IN
GIVING EFFECT TO THEIR AWARDS; THAT WOULD BE AN ABDICATION OF OUR
RESPONSIBILITY.  BUT IT DOES MEAN THAT ARBITRATORS ARE NOT
AUTOMATICALLY DISQUALIFIED BY A BUSINESS RELATIONSHIP WITH THE PARTIES
BEFORE THEM IF BOTH PARTIES ARE INFORMED OF THE RELATIONSHIP IN
ADVANCE, OR IF THEY ARE UNAWARE OF THE FACTS BUT THE RELATIONSHIP IS
TRIVIAL.  I SEE NO REASON AUTOMATICALLY TO DISQUALIFY THE BEST INFORMED
AND MOST CAPABLE POTENTIAL ARBITRATORS. 

THE ARBITRATION PROCESS FUNCTIONS BEST WHEN AN AMICABLE AND TRUSTING
ATMOSPHERE IS PRESERVED AND THERE IS VOLUNTARY COMPLIANCE WITH THE
DECREE, WITHOUT NEED FOR JUDICIAL ENFORCEMENT.  THIS END IS BEST SERVED
BY ESTABLISHING AN ATMOSPHERE OF FRANKNESS AT THE OUTSET, THROUGH
DISCLOSURE BY THE ARBITRATOR OF ANY FINANCIAL TRANSACTIONS WHICH HE HAS
HAD OR IS NEGOTIATING WITH EITHER OF THE BUSINESS RELATIONSHIP TO BE SO
INSUBSTANTIAL THAT TO MAKE A POINT OF REVEALING IT WOULD SUGGEST HE IS
INDEED EASILY SWAYED, AND PERHAPS A PARTISAN OF THAT PARTY.  /0/  BUT
IF THE LAW REQUIRES THE DISCLOSURE, NO SUCH IMPUTATION CAN ARISE.  AND
IT IS FAR BETTER THAT THE RELATIONSHIP BE DISCLOSED AT THE OUTSET, WHEN
THE PARTIES ARE FREE TO REJECT THE ARBITRATOR OR ACCEPT HIM WITH
KNOWLEDGE OF THE RELATIONSHIP AND CONTINUING FAITH IN HIS OBJECTIVITY,
THAN TO HAVE THE RELATIONSHIP COME TO LIGHT AFTER THE ARBITRATION, WHEN
A SUSPICIOUS OR DISGRUNTLED PARTY CAN SEIZE ON IT AS A PRETEXT FOR
INVALIDATING THE AWARD.  THE JUDICIARY SHOULD MINIMIZE ITS ROLE IN
ARBITRATION AS JUDGE OF THE ARBITRATOR'S IMPARTIALITY.  THAT ROLE IS
BEST CONSIGNED TO THE PARTIES, WHO ARE THE ARCHITECTS OF THEIR OWN
ARBITRATION PROCESS, AND ARE FAR BETTER INFORMED OF THE PREVAILING
ETHICAL STANDARDS AND REPUTATIONS WITHIN THEIR BUSINESS. 

OF COURSE, AN ARBITRATOR'S BUSINESS RELATIONSHIPS MAY BE DIVERSE
INDEED, INVOLVING MORE OR LESS REMOTE COMMERCIAL CONNECTIONS WITH GREAT
NUMBERS OF PEOPLE.  HE CANNOT BE EXPECTED TO PROVIDE THE PARTIES WITH
HIS COMPLETE AND UNEXPURGATED BUSINESS BIOGRAPHY.  BUT IT IS ENOUGH FOR
PRESENT PURPOSES TO HOLD, AS THE COURT DOES, THAT WHERE THE ARBITRATOR
HAS A SUBSTANTIAL INTEREST IN A FIRM WHICH HAS DONE MORE THAN TRIVIAL
BUSINESS WITH A PARTY, THAT FACT MUST BE DISCLOSED.  IF ARBITRATORS ERR
ON THE SIDE OF DISCLOSURE, AS THEY SHOULD, IT WILL NOT BE DIFFICULT FOR
COURTS TO IDENTIFY THOSE UNDISCLOSED RELATIONSHIPS WHICH ARE TOO
INSUBSTANTIAL TO WARRANT VACATING AN AWARD. 

/0/  IN FACT, THE DISTRICT COURT FOUND-- ON THE BASIS OF THE RECORD
AND PETITIONER'S ADMISSIONS-- THAT THE ARBITRATOR IN THIS CASE WAS
ENTIRELY FAIR AND IMPARTIAL.  I DO NOT READ THE MAJORITY OPINION AS
QUESTIONING THIS FINDING IN ANY WAY. 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

I DISSENT AND WOULD AFFIRM THE JUDGMENT. 

THE FACTS IN THIS CASE DO NOT LEND THEMSELVES TO THE COURT'S
RULING.  THE COURT SETS ASIDE THE ARBITRATION AWARD DESPITE THE FACT
THAT THE AWARD IS UNANIMOUS AND NO CLAIM IS MADE OF ACTUAL PARTIALITY,
UNFAIRNESS, BIAS, OR FRAUD. 

THE ARBITRATION WAS HELD PURSUANT TO PROVISIONS IN THE CONTRACTS
BETWEEN THE PARTIES.  IT IS NOT SUBJECT TO THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION.  IT IS GOVERNED BY THE UNITED STATES
ARBITRATION ACT, 9 U.S.C. 1-14. 

EACH PARTY APPOINTED AN ARBITRATOR AND THE THIRD ARBITRATOR WAS
CHOSEN BY THOS TWO.  THE CONTROVERSY RELATES TO THE THIRD ARBITRATOR. 

THE THIRD ARBITRATOR WAS NOT ASKED ABOUT BUSINESS CONNECTIONS WITH
EITHER PARTY.  PETITIONER'S COMPLAINT IS THAT HE FAILED TO VOLUNTEER
INFORMATION ABOUT PROFESSIONAL SERVICES RENDERED BY HIM TO THE OTHER
PARTY TO THE CONTRACT, THE MOST RECENT OF WHICH WERE PERFORMED OVER A
YEAR BEFORE THE ARBITRATION.  BOTH COURTS BELOW HELD, AND PETITIONER
CONCEDES, THAT THE THIRD ARBITRATOR WAS INNOCENT OF ANY ACTUAL
PARTIALITY, OR BIAS, OR IMPROPER MOTIVE.  THERE IS NO SUGGESTION OF
CONCEALMENT AS DISTINGUISHED FROM THE INNOCENT FAILURE TO VOLUNTEER
INFORMATION. 

THE THIRD ARBITRATOR IS A LEADING AND RESPECTED CONSULTING ENGINEER
WHO HAS PERFORMED SERVICES FOR "MOST OF THE CONTRACTORS IN PUERTO
RICO."  HE WAS WELL KNOWN TO PETITIONER'S COUNSEL AND THEY WERE
PERSONAL FRIENDS.  PETITIONER'S COUNSEL CANDIDLY ADMITTED THAT IF HE
HAD BEEN TOLD ABOUT THE ARBITRATOR'S PRIOR RELATIONSHIP "I DON'T THINK
I WOULD HAVE OBJECTED BECAUSE I KNOW MR. CAPACETE (THE ARBITRATOR)." 
CLEARLY, THE DISTRICT JUDGE'S CONCLUSION, AFFIRMED BY THE COURT OF
APPEALS FOR THE FIRST CIRCUIT, WAS CORRECT, THAT "THE ARBITRATORS
CONDUCTED FAIR, IMPARTIAL HEARINGS; THAT THEY REACHED A PROPER
DETERMINATION OF THE ISSUES BEFORE THEM, AND THAT PLAINTIFF'S
OBJECTIONS REPRESENT A 'SITUATION WHERE THE LOSING PARTY TO AN
ARBITRATION IS NOW CLUTCHING AT STRAWS IN AN ATTEMPT TO AVOID THE
RESULTS OF THE ARBITRATION TO WHICH IT BECAME A PARTY.'" 

THE COURT NEVERTHELESS ORDERS THAT THE ARBITRATION AWARD BE SET
ASIDE.  IT USES THIS SINGULARLY INAPPROPRIATE CASE TO ANNOUNCE A PER SE
RULE THAT IN MY JUDGMENT HAS NO BASIS IN THE APPLICABLE STATUTE OR
JURISPRUDENTIAL PRINCIPLES:  THAT, REGARDLESS OF THE AGREEMENT BETWEEN
THE PARTIES, IF AN ARBITRATOR HAS ANY PRIOR BUSINESS RELATIONSHIP WITH
ONE OF THE PARTIES OF WHICH HE FAILS TO INFORM THE OTHER PARTY, HOWEVER
INNOCENTLY, THE ARBITRATION AWARD IS ALWAYS SUBJECT TO BEING SET
ASIDE.  THIS IS SO EVEN WHERE THE AWARD IS UNANIMOUS; WHERE THERE IS NO
SUGGESTION THAT THE NONDISCLOSURE INDICATES PARTIALITY OR BIAS; AND
WHERE IT IS CONCEDED THAT THERE WAS IN FACT NO IRREGULARITY,
UNFAIRNESS, BIAS, OR PARTIALITY.  UNTIL THE DECISION TODAY, IT HAS NOT
BEEN GHE LAW THAT AN ARBITRATOR'S FAILURE TO DISCLOSE A PRIOR BUSINESS
RELATIONSHIP WITH ONE OF THE PARTIES WILL COMPEL THE SETTING ASIDE OF
AN ARBITRATION AWARD REGARDLESS OF THE CIRCUMSTANCES.  /1/ 

I AGREE THAT FAILURE OF AN ARBITRATOR TO VOLUNTEER INFORMATION ABOUT
BUSINESS DEALINGS WITH ONE PARTY WILL, PRIMA FACIE, SUPPORT A CLAIM OF
PARTIALITY OR BIAS.  BUT WHERE THERE IS NO SUGGESTION THAT THE
NONDISCLOSURE WAS CALCULATED, AND WHERE THE COMPLAINING PARTY DISCLAIMS
ANY IMPUTATION OF PARTIALITY, BIAS, OR MISCONDUCT, THE PRESUMPTION
CLEARLY IS OVERCOME.  /2/ 

I DO NOT BELIEVE THAT IT IS EITHER NECESSARY, APPROPRIATE, OR
PERMISSIBLE TO RULE, AS THE COURT DOES, THAT, REGARDLESS OF THE FACTS,
INNOCENT FAILURE TO VOLUNTEER INFORMATION CONSTITUTES THE "EVIDENT
PARTIALITY" NECESSARY UNDER SEC. 10(B) OF THE ARBITRATION ACT TO SET
ASIDE AN AWARD.  "EVIDENT PARTIALITY" MEANS WHAT IT SAYS:  CONDUCT-- OR
AT LEAST AN ATTITUDE OR DISPOSITION-- BY THE ARBITRATOR FAVORING ONE
PARTY RATHER THAN THE OTHER.  THIS CASE DEMONSTRATES THAT TO RULE
OTHERWISE MAY BE A PALPABLE INJUSTICE, SINCE ALL AGREE THAT THE
ARBITRATOR WAS INNOCENT OF EITHER "EVIDENT PARTIALITY" OR ANYTHING
APPROACHING IT. 

ARBITRATION IS ESSENTIALLY CONSENSUAL AND PRACTICAL.  THE UNITED
STATES ARBITRATION ACT IS OBVIOUSLY DESIGNED TO PROTECT THE INTEGRITY
OF THE PROCESS WITH A MINIMUM OF INSISTENCE UPON SET FORMULAE AND
RULES.  /3/  THE COURT APPLIES TO THIS PROCESS RULES APPLICABLE TO
JUDGES AND NOT TO A SYSTEM CHARACTERIZED BY DEALING ON FAITH AND
REPUTATION FOR RELIABILITY.  SUCH FORMALISM IS NOT CONTEMPLATED BY THE
ACT NOR IS IT WARRANTED IN A CASE WHERE NO CLAIM IS MADE OF PARTIALITY,
OF UNFAIRNESS, OR OF MISCONDUCT IN ANY DEGREE. 

/1/  SEE FIREMEN'S FUND INS. CO. V. FLINT HOSIERY MILLS, 74 F.2D 533
(C.A. 4TH CIR. 1935); TEXAS EASTERN TRANSMISSION CORP. V. BARNARD, 177
F.SUPP.  123, 128-129 (D.C.E.D. KY. 1959), REV'D ON OTHER GROUNDS, 285
F.2D 536 (C.A. 6TH CIR. 1960); ILIOS SHIPPING & TRADING CORP. V.
AMERICAN ANTHRACITE & BITUMINOUS COAL CORP., 148 F.SUPP.  698, 700
(D.C.S.D.N.Y.), AFF'D, 245 F.2D 873 (1957); CROSS PROPERTIES, INC. V.
GIMBEL BROS, 15 APP.DIV.2D 913, 225 N.Y.S.2D 1014, AFF'D, 12 N.Y.2D
806, 187 N.E.2D 129 (1962).  CF. ISBRANDTSEN TANKERS, INC. V. NATIONAL
MARINE ENGINEERS' BENEFICIAL ASSN., 236 N.Y.S.2D 808, 811 (1962). 

/2/  AT THE TIME OF THE CONTRACT AND THE ARBITRATION HEREIN, SEC. 18
OF THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, WHICH THE COURT
QUOTES, WAS PHRASED MERELY IN TERMS OF A "REQUEST" THAT THE ARBITRATOR
"DISCLOSE ANY CIRCUMSTANCES LIKELY TO CREATE A PRESUMPTION OF BIAS OR
WHICH HE BELIEVES MIGHT DISQUALIFY HIM AS AN IMPARTIAL ARBITRATOR."  IN
1964, THE RULE WAS CHANGED TO PROVIDE THAT "THE PROSPECTIVE NEUTRAL
ARBITRATOR SHALL DISCLOSE ANY CIRCUMSTANCES LIKELY TO CREATE A
PRESUMPTION OF BIAS OR WHICH HE BELIEVES MIGHT DISQUALIFY HIM AS AN
IMPARTIAL ARBITRATOR." 

/3/  THE REPORTS ON THE ACT MAKE THIS PURPOSE CLEAR.  H.R. REP. NO.
96, 68TH CONG., 1ST SESS., 1-2; S. REP. NO. 536, 68TH CONG., 1ST SESS.,
3.  CF. WILKO V. SWAN, 346 U.S. 427, 431 (1953). 

EMANUEL HARRIS ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS MAX E. GREENBERG. 

OVERTON A. CURRIE ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEFS WERE LUTHER P. HOUSE, JR., FEDERICO RAMIREZ ROS, AND EDWARD H.
WASSON, JR.
..END :










GRUNENTHAL V. LONG ISLAND R. CO., 393 U.S. 156 


       GRUNENTHAL V. LONG ISLAND RAILROAD CO.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

        SECOND CIRCUIT. 

        NO. 35, ARGUED OCTOBER 24, 1968.-- DECIDED NOVEMBER 18,

           1968. 


PETITIONER WAS AWARDED A JURY VERDICT OF $305,000 IN DAMAGES IN AN
ACTION FOR A SEVERE FOOT INJURY WHICH HE BROUGHT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  HAVING CONCLUDED THAT THE RELEVANT EVIDENCE
WEIGHED HEAVILY IN FAVOR OF THE JURY'S AWARD, THE TRIAL COURT DENIED
RESPONDENT RAILROAD'S MOTION TO SET THE AWARD ASIDE AS EXCESSIVE.  ON
THE RAILROAD'S APPEAL THE COURT OF APPEALS, IN ACCORDANCE WITH DAGNELLO
V. LONG ISLAND R. CO., 289 F.2D 797, LIMITED ITS INQUIRY TO DETERMINING
WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION IN DENYING THE RAILROAD'S
MOTION.  THE COURT MADE NO DETAILED APPRAISAL OF THE EVIDENCE BEARING
ON DAMAGES BUT FOUND AN ABUSE OF DISCRETION AND ORDERED THE DISTRICT
COURT TO GRANT THE RAILROAD A NEW TRIAL UNLESS PETITIONER AGREED TO
REMIT $105,000 OF THE AWARD.  HELD:  THIS COURT MAKES ITS OWN
INDEPENDENT APPRAISAL, AND CONCLUDES THAT THERE WAS NO ABUSE OF THE
TRIAL COURT'S DISCRETION IN ALLOWING THE AWARD TO STAND.  PP. 159-162. 

388 F.2D 480, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS WORKING FOR RESPONDENT AS FOREMAN OF A TRACK GANG WHEN
A 300-POUND RAILROAD TIE BEING LIFTED BY THE GANG FELL AND SEVERELY
CRUSHED HIS RIGHT FOOT.  HE SUED RESPONDENT FOR DAMAGES UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS AMENDED, 45 U.S.C. 51
ET SEQ., AND A JURY IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AWARDED HIM $305,000.  /1/  THE TRIAL JUDGE DENIED THE
RAILROAD'S MOTION TO SET THE AWARD ASIDE AS EXCESSIVE.  TH RAILROAD
APPEALED THE DENIAL TO THE COURT OF APPEALS FOR THE SECOND CIRCUIT, AND
THAT COURT, ONE JUDGE DISSENTING, ORDERED THE DISTRICT COURT TO GRANT
THE RAILROAD A NEW TRIAL UNLESS THE PETITIONER WOULD AGREE TO REMIT
$105,000 OF THE AWARD.  388 F.2D 480 (1968).  WE GRANTED CERITORARI,
391 U.S. 902 (1968).  /2/  WE REVERSE. 

PETITIONER ARGUES THAT THE COURT OF APPEALS EXCEEDED ITS APPELLATE
POWERS IN REVIEWING THE DENIAL OF THE RAILROAD'S MOTION, EITHER BECAUSE
SUCH REVIEW IS CONSTITUTIONALLY PRECLUDED BY THE PROVISION OF THE
SEVENTH AMENDMENT THAT "NO FACT TRIED BY A JURY, SHALL BE OTHERWISE
REEXAMINED IN ANY COURT OF THE UNITED STATES, THAN ACCORDING TO THE
RULES OF THE COMMON LAW."  /3/  OR BECAUSE SUCH REVIEW IS PROHIBITED BY
THE FEDERAL EMPLOYERS' LIABILITY ACT ITSELF.  WE HAVE NO OCCASION IN
THIS CASE TO CONSIDER THAT ARGUMENT, FOR ASSUMING, WITHOUT DECIDING,
THAT THE COURT OF APPEALS WAS EMPOWERED TO REVIEW THE DENIAL AND
INVOKED THE CORRECT STANDARD OF REVIEW, THE ACTION OF THE TRIAL JUDGE,
AS WE VIEW THE EVIDENCE, SHOULD NOT HAVE BEEN DISTURBED.  SEE NEESE V.
SOUTHERN R. CO., 350 U.S. 77 (1955). 

THE TRIAL JUDGE FILED AN UNREPORTED OPINION.  /3A/  HE CONSIDERED
THAT IN DECIDING THE RAILROAD'S MOTION HE MUST INDULGE . . . IN A
FAIRLY ACCURAGE ESTIMATE OF FACTORS TO WHICH THE JURY GAVE ATTENTION,
AND FAVORABLE RESPONSE, IN ORDER TO ARRIVE AT THE VERDICT ANNOUNCED." 
HE CONCLUDED THAT THE MOTION SHOULD BE DENIED BECAUSE, APPLYING THAT
STANDARD, THE RELEVANT EVIDENCE WEIGHED HEAVILY IN FAVOR OF THE JURY'S
ASSESSMENT.  HIS INSTRUCTIONS TO THE JURY HAD LIMITED THE ITEMS OF
DAMAGES TO WAGES LOST BEFORE TRIAL, COMPENSATION FOR LOSS OF FUTURE
EARNINGS, AND PAST AND CONTINUING PAIN AND SUFFERING.  HIS OPINION
DETAILED THE ITEMS OF EVIDENCE WHICH, IN HIS VIEW, WERE SUFFICIENT TO
SUPPORT THE JURY IN FINDING THAT (1) WAGES LOST BEFORE TRIAL AMOUNTED
TO APPROXIMATELY $27,000, (2) LOSS OF FUTURE WAGES BASED ON
PETITIONER'S PRESENT SALARY OF $6,000 PER ANNUM PLUS LIKELY INCREASES
OVER A LIFE EXPECTANCY OF 27.5 YEARS WOULD AMOUNT TO $150,000 PRESENT
VALUE, AND (3) "AN AMOUNT APPROACHING $150,000 (WOULD BE APPROPRIATE)
FOR PLAINTIFF'S PAIN AND SUFFERING-- PAST AND FUTURE."  THE JUDGE
CONCEDED THAT THE AGGREGATE AWARD SEEMED GENEROUS, BUT HE CONCLUDED
NEVERTHELESS THAT IT WAS "NOT GENEROUS TO A FAULT OR OUTSIDE THE BOUNDS
OF LEGAL APPROPRIATENESS."  HE EMPHASIZED THAT "THE TRIAL RECORD HERE
HAS MANY UNUSUAL FEATURES, THE MOST OUTSTANDING ONE BEING THE NON
CONTROVERSIAL NATURE OF THE DEFENSE AS TO DAMAGES.  THE JURY, IMPRESSED
BY THE UNCONTROVERTED PROOF ADDUCED BY PLAINTIFF, MAY WELL HAVE ADOPTED
IN TOTO ITS FULL SIGNIFICANCE AND DRAWN SUCH NORMAL AND NATURAL
INFERENCES THEREFROM AS THE LAW ENDORSES." 

THE COURT OF APPEALS REGARDED ITS INQUIRY AS LIMITED TO DETERMINING
WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION IN DENYING THE RAILROAD'S
MOTION.  ITS GUIDE FOR THAT DETERMINATION, THE COURT STATED, WAS THE
STANDARD OF REVIEW ANNOUNCED IN ITS EARLIER DECISION IN DAGNELLO V.
LONG ISLAND R. CO., 289 F.2D 797, 806 (1961):  "(WE APPELLATE JUDGES
(ARE) NOT TO DECIDE WHETHER WE WOULD BE A DENIAL OF JUSTICE TO PERMIT
IT TO STAND.  WE MUST GIVE THE BENEFIT OF EVERY DOUBT TO THE JUDGMENT
OF THE TRIAL JUDGE; BUT SURELY THERE MUST BE AN UPPER LIMIT, AND
WHETHER THAT HAS BEEN SURPASSED IS NOT A QUESTION OF FACT WITH RESPECT
TO WHICH REASONABLE MEN MAY DIFFER, BUT A QUESTION OF LAW."  /4/ 

WE READ DAGNELLO, HOWEVER, AS REQUIRING THE COURT OF APPEALS IN
APPLYING THIS STANDARD TO MAKE A DETAILED APPRAISAL OF THE EVIDENCE
BEARING ON DAMAGES.  INDEED THIS RE-EXAMINATION LED TO THE CONCLUSION
IN DAGNELLO THAT IT WAS NOT A DENIAL OF JUSTICE TO PERMIT THE JURY'S
AWARD TO STAND.  IF THE COURT OF APPEALS MADE A SIMILAR APPRAISAL OF
THE EVIDENCE IN THIS CASE, THE DETAILS ARE NOT DISCLOSED IN THE
MAJORITY OPINION.  BEYOND ATTACHING UNEXPLAINED SIGNIFICANCE TO
PETITIONER'S FAILURE IN HIS COMPLAINT "TO ASK FOR DAMAGES IN SUCH A
LARGE SUM AS $305,000," THE RELEVANT DISCUSSION IS LIMITED TO THE BALD
STATEMENT THAT "GIVING GRUNENTHAL THE BENEFIT OF EVERY DOUBT, AND
WEIGHING THE EVIDENCE PRECISELY IN THE SAME MANNER AS WE DID IN
DAGNELLO . . . WE CANNOT IN ANY RATIONAL MANNER CONSISTENT WITH THE
EVIDENCE ARRIVE AT A SUM IN EXCESS OF $200,000."  388 F.2D,AT 484.  WE
HAVE THEREFORE MADE OUR OWN INDEPENDENT APPRAISAL OF THE EVIDENCE.  WE
CONCLUDE THAT THE TRIAL JUDGE DID NOT ABUSE HIS DISCRETION IN FINDING
"NOTHING UNTOWARD, INORDINATE, UNREASONABLE OR OUTRAGEOUS-- NOTHING
INDICATIVE OF A RUNAWAY JURY OR ONE THAT LOST ITS HEAD." 

THE LIABILITY AND DAMAGE ISSUES WERE TRIED SEPARATELY BEFORE THE
SAME JURY.  THE EVIDENCE AT THE TRIAL ON DAMAGES CONSISTED OF
STIPULATED HOSPITAL AND EMPLOYMENT RECORDS, A STIPULATION THAT
PETITIONER'S LIFE EXPECTANCY WAS 27.5 YEARS, AND THE ORAL TESTIMONY OF
THE PETITIONER, HIS MEDICAL EXPERT, AND AN OFFICIAL OF HIS RAILROAD
UNION.  THE RAILROAD OFFERED NO WITNESSES. 

PETITIONER WAS 41 YEARS OF AGE AT THE TIME OF HIS INJURY AND HAD
BEEN IN THE RAILROAD'S EMPLOY FOR OVER 20 YEARS.  THE RAILROAD CONCEDES
IN ITS BRIEF THAT HE WAS EARNING APPROXIMATELY $6,000 ANNUALLY AND THAT
THE JURY COULD PROPERLY FIND THAT HE WAS ENTITLED TO $27,000 FOR WAGES
ALREADY LOST OVER THE FOUR AND ONE-HALF YEAR PERIOD BETWEEN INJURY AND
JUDGMENT.  THE RAILROAD FURTHER CONCEDES THAT AN AWARD OF $100,000 FOR
LOSS OF FUTURE WAGES WOULD NOT BE IMPROPER, THIS ON THE PREMISE THAT
INVESTED IN FEDERAL SECURITIES THAT SUM WOULD REALIZE $6,000 ANNUALLY. 
THE TRIAL JUDGE ON THE OTHER HAND APPRAISED THE EVIDENCE ON FUTURE
EARNINGS AS SUFFICIENT TO SUPPORT AN AWARD OF $150,000 FOR LOSS OF
FUTURE WAGES IN LIGHT OF THE "CONVINCING TESTIMONY NOT REFUTED . . .
DEMONSTRATING THE STEADY WAGE INCREASES IN RECENT TIME FOR WORK
EQUIVALENT TO THAT RENDERED BY PLAINTIFF, AND THE STRONG LIKELIHOOD
THAT SIMILAR INCREASES WOULD CONTINUE." 

WE CANNOT SAY THAT THE TRIAL JUDGE'S VIEW THAT THE JURY MIGHT
PROPERLY HAVE AWARDED $150,000 FOR LOSS OF FUTURE EARNINGS IS WITHOUT
SUPPORT IN THE EVIDENCE.  THE JUDGE HAD INSTRUCTED THE JURY WITHOUT
OBJECTION FROM THE RAILROAD THAT IT WAS FREE TO FIND ON THE EVIDENCE
THAT THE INJURY SO DISABLED THE PETITIONER "THAT IT IN EFFECT CLOSED
OUT HIS WORKING CAREER."  ALTHOUGH PETITIONER'S MEDICAL WITNESS
TESTIFIED THAT THE CONDITION OF HIS FOOT WOULD NOT PREVENT PETITIONER
FROM ENGAGING IN "SEDENTARY WORK," PETITIONER'S UNCHALLENGED EVIDENCE
OF HIS UNSUCCESSFUL EFFORTS TO OBTAIN AND KEEP JOBS OF THAT KIND MIGHT
REASONABLY HAVE LED THE JURY TO DECIDE THAT PETITIONER'S CHANCES OF
OBTAINING OR HOLDING ANY EMPLOYMENT WERE MOST DOUBTFUL.  PETITIONER
TESTIFIED THAT HIS APPLICATIONS FOR WORK HAD OFTEN BEEN TURNED DOWN:
"(WHEN THEY FOUND OUT I HAD A BAD FOOT THEY WOULDN'T TAKE A CHANCE." 
ON ONE OCCASION WHEN HE OBTAINED EMPLOYMENT AS A SALESMAN DURING THE
CHRISTMAS RUSH, "I WORKED THERE FOR ABOUT FOUR OR FIVE DAYS BUT I
COULDN'T STAND IT."  MOREOVER, THE RAILROAD REFUSED TO EMPLOY HIM FOR
ANY KIND OF WORK WHEN HE FAILED A MEDICAL EXAMINATION GIVEN HIM BY A
RAILROAD PHYSICIAN; AFTER BEING TOLD, "YOU FAILED THE MEDICAL AND WE
CAN'T TAKE YOU BACK,"  PETITIONER SAID HE BEGAN RECEIVING A "DISABILITY
PENSION FROM THE RAILROAD." 

SINCE THE JURY'S AWARD FOR LOST FUTURE EARNINGS MAY PROPERLY HAVE
BEEN AS HIGH AS $150,000, ITS AWARD FOR PAIN AND SUFFERING MIGHT HAVE
BEEN AS LOW AS $128,000 RATHER THAN THE $150,000 DEEMED PERMISSIBLE BY
THE TRIAL JUDGE.  IN ANY EVENT WE CANNOT SAY THAT THE TRIAL JUDGE'S
OPINION THAT THE JURY MIGHT HAVE AWARDED THE HIGHER $150,000 AMOUNT IS
WITHOUT SUPPORT IN THE RECORD.  PETITIONER'S INJURY CAUSED HIS
HOSPITALIZATION AT FIVE DIFFERENT TIMES OVER A PERIOD OF LESS THAN TWO
YEARS.  HIS FOOT WAS SO BADLY CRUSHED THAT SERIOUS INFECTION
DEVELOPED.  THE WOUNDS DID NOT HEAL PROPERLY AND SKIN GRAFTS WERE MADE
FROM HIS RIGHT THIGH ABOUT A YEAR AFTER HIS INJURY.  SEVERAL MONTHS
LATER GANGRENE SET IN AND HIS DOCTORS WERE CONCERNED THAT THE "FOOT WAS
ABOUT TO DIE."  A SYMPATHECTOMY WAS PERFORMED, CONSISTING OF AN
INCISION OF THE ABDOMEN TO REACH THE SPINAL COLUMN AND THE SYMPATHETIC
GANGLIA ALONG THE SPINE "TO REMOVE (THE) CONTROLS WHICH MAINTAIN THE
CLOSING DOWN OF THE BLOOD VESSELS."  THIS OPERATION WAS SUCCESSFUL BUT
SIX MONTHS LATER PETITIONER WAS FORCED TO SUBMIT TO YET ANOTHER
OPERATION TO REMOVE A PIECE OF BONE OVER THE BALL OF THE GREAT TOE. 
PETITIONER'S MEDICAL WITNESS TESTIFIED THAT THERE IS STILL A HAZARD OF
MORE SURGERY BECAUSE "THIS IS JUST A MESS OF BONES"-- "THE METATARSAL
HAS BEEN COMPLETELY CRUSHED"-- "THE JOINT IS COMPLETELY LOST"-- "THE
OVERALL BLACK APPEARANCE OF THE BONE"-- "INDICATES DECALCIFICATION OR
DEMINERALIZATION"-- "THE NOURISHMENT TO THE FOOT IS SO BAD THAT THE
SKIN SHOWS THE UNHEALTHY CONDITION OF THE FOOT."  PETITIONER TESTIFIED
THAT "I ALWAYS HAVE A PAIN, IT IS LIKE A DULL TOOTHACHE, TO THIS DAY,"
AND THAT "I JUST TAKE IT FOR GRANTED NOW.  IT DOESN'T BOTHER ME NOW." 
THE JURY MIGHT WELL HAVE CONCLUDED THAT PETITIONER SUFFERED AND WOULD
CONTINUE TO SUFFER GREAT PAIN, ALTHOUGH HE HAD LEARNED TO LIVE WITH IT.
AS JUDGE HAYS NOTED, 388 F.2D,AT 485, THE TRIAL JUDGE REFERRED TO "THE
TOTAL ABSENCE OF EXAGGERATION" IN PETITIONER'S TESTIMONY DESCRIBING
"THE EXCRUCIATING PHYSICAL PAIN AND MENTAL ANGUISH" HE HAD ENDURED
SINCE THE ACCIDENT.  "ON THE RECORD HERE," SAID THE TRIAL JUDGE, "(THE
JURY) HAD GOOD AND SUFFICIENT REASON TO REGARD AND ASSESS (THE
PLAINTIFF'S PAIN AND SUFFERING-- PAST AND FUTURE) AS EXCRUCIATING DEEP
SEATED, UNRELENTING AND DEBILITATING-- THE INDUCING CAUSE OF HIS
CONSTANT MISERY." 

WE THEREFORE CONCLUDE THAT THE ACTION OF THE TRIAL JUDGE SHOULD NOT
HAVE BEEN DISTURBED BY THE COURT OF APPEALS. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT WITH DIRECTION TO ENTER A JUDGMENT AFFIRMING THE
JUDGMENT OF THE DISTRICT COURT. 

              IT IS SO ORDERED. 

/1/  PETITIONER'S COMPLAINT SOUGHT DAMAGES OF $250,000.  THIS WAS
AMENDED WITH LEAVE OF THE TRIAL JUDGE TO $305,000 AFTER THE JURY
RETURNED ITS VERDICT IN THAT AMOUNT. 

/2/  THE COURT OF APPEALS REJECTED THE RAILROAD'S GROUNDS OF APPEAL
ADDRESSED TO LIABILITY AND TO THE DISMISSAL OF A THIRD-PARTY CLAIM OF
THE RAILROAD AGAINST THE CONTRACTING COMPANY WHICH FURNISHED A BOOM
TRUCK USED BY THE TRACK GANG.  NONE OF THOSE QUESTIONS WAS BROUGHT
HERE. 

/3/  ALL 11 COURTS OF APPEALS HAVE HELD THAT NOTHING IN THE SEVENTH
AMENDMENT PRECLUDES APPELLATE REVIEW OF THE TRIAL JUDGE'S DENIAL OF A
MOTION TO SET ASIDE AN AWARD AS EXCESSIVE.  BOYLE V. BOND, 88
U.S.APP.D.C. 178, 187 F.2D 362 (1951); COMPANIA TRASATLANTICA ESPANOLA,
S.A. V. MELENDEZ TORRES, 358 F.2D 209 (C.A. 1ST CIR. 1966); DAGNELLO V.
LONG ISLAND R. CO., 289 F.2D 797 (C.A.2D CIR. 1961); RUSSELL V.
MONONGAHELA R. CO., 262 F.2D 349, 352 (C.A. 3D CIR. 1958); VIRGINIAN R.
CO. V. ARMENTROUT, 166 F.2D 400 (C.A. 4TH CIR. 1948); GLAZER V. GLAZER,
374 F.2D 390 (C.A. 5TH CIR. 1967); GAULT V. POOR SISTERS OF ST.
FRANCES.  375 F.2D 539, 547-548 (C.A. 6TH CIR. 1967); BANKERS LIFE &
CAS. CO. V. KIRTLEY, 307 F.2D 418 (C.A. 8TH CIR. 1962); COVEY GAS & OIL
CO. V. CHECKETTS, 187 F.2D 561 (C.A. 9TH CIR. 1951); BARNES V. SMITH,
305 F.2D 226, 228 (C.A. 10TH CIR. 1962). 

/3A/  (REPORTER'S NOTE:  THE OPINION WAS SUBSEQUENTLY REPORTED AT
292 F.SUPP.  813 (D.C.S.D.N.Y. 1967).) 

/4/  THE STANDARD HAS BEEN VARIOUSLY PHRASED:  "COMMON PHRASES ARE
SUCH AS:  'GROSSLY EXCESSIVE,' 'INORDINATE,' 'SHOCKING TO THE JUDICIAL
CONSCIENCE,' 'OUTRAGEOUSLY EXCESSIVE,' 'SO LARGE AS TO SHOCK THE
CONSCIENCE OF THE COURT,' 'MONSTROUS,' AND MANY OTHERS."  DAGNELLO V.
LONG ISLAND R. CO., SUPRA, AT 802. 

MR. JUSTICE HARLAN, DISSENTING. 

I THINK IT CLEAR THAT THE ONLY ISSUE WHICH MIGHT CONCEIVABLY JUSTIFY
THE PRESENCE OF THIS CASE IN THIS COURT IS WHETHER A UNITED STATES
COURT OF APPEALS MAY CONSTITUTIONALLY REVIEW THE REFUSAL OF A DISTRICT
COURT TO SET ASIDE A VERDICT FOR EXCESSIVENESS.  THE COURT PURPORTS NOT
TO DECIDE THAT QUESTION, PREFERRING TO REST ITS DECISION UPON THE
ALLEGED CORRECTNESS OF THE DISTRICT COURT'S ACTION IN THE CIRCUMSTANCES
OF THIS CASE.  LIKE MY BROTHER STEWART, I AM AT AN UTTER LOSS TO
UNDERSTAND HOW THE COURT MANAGES TO REVIEW THE DISTRICT COURT'S
DECISION AND FIND IT PROPER WHILE AT THE SAME TIME PROCLAIMING THAT IT
HAS AVOIDED DECISION OF THE ISSUE WHETHER APPELLATE COURTS EVER MAY
REVIEW SUCH ACTIONS. 

EVEN ASSUMING THAT THIS FEAT OF LEGAL GYMNASTICS HAS BEEN
SUCCESSFULLY PERFORMED, I BELIEVE THAT THE CORRECTNESS OF THIS
PARTICULAR DISTRICT COURT DECISION, A MATTER WHOSE PROPER RESOLUTION
DEPENDS UPON A DETAILED EXAMINATION OF THE TRIAL RECORD AND WHICH
POSSESSES LITTLE IF ANY GENERAL SIGNIFICANCE, IS NOT A SUITABLE ISSUE
FOR THIS COURT.  ACCORDINGLY, I THINK IT APPROPRIATE TO VOTE TO DISMISS
THE WRIT AS IMPROVIDENTLY GRATNED, EVEN THOUGH THE CASE FORMALLY IS
HERE ON AN UNLIMITED WRIT.  SEE MY DISSENTING OPINION IN PROTECTIVE
COMMITTEE V. ANDERSON, 390 U.S. 414, 454 (1968).  TO THE EXTENT THAT
THIS POSITION IS INCONSISTENT WITH MY HAVING JOINED THE PER CURIAM
OPINION IN NEESE V. SOUTHERN R. CO., 350 U.S. 77 (1955), IN WHICH THE
COURT ADOPTED A COURSE SIMILAR TO THAT FOLLOWED TODAY, I FEEL BOUND
FRANKLY TO SAY THAT THE INCONGRUITY OF TODAY'S DECISION BRINGS ME FACE
TO-FACE WITH THE QUESTION WHETHER THAT EARLIER DISPOSITION WAS CORRECT,
AND THAT I NOW BELIEVE IT TO HAVE BEEN WRONG.  /0/  SINCE THE COURT
PROFESSES NOT TO REACH THE CONSTITUTIONAL ISSUE IN THIS CASE, I
CONSIDER IT INAPPROPRIATE FOR ME, AS AN INDIVIDUAL JUSTICE, TO EXPRESS
MY OPINION ON IT. 

/0/  I FEEL ENTITLED TO STATE, BY WAY OF PARTIAL CONFESSION AND
AVOIDANCE OF MY ACTION IN NEESE, THAT THE WRIT IN NEESE WAS GRANTED
BEFORE I TOOK MY SEAT ON THE COURT.  SEE 348 U.S. IX, AND 950 (1955). 

MR. JUSTICE STEWART, DISSENTING. 

THE COURT PROFESSES NOT TO CONSIDER THE PETITIONER'S ARGUMENT THAT
THE SEVENTH AMENDMENT AND "THE FEDERAL EXPLOYERS' LIABILITY ACT ITSELF"
PROHIBIT JUDICIAL REVIEW OF A DISTRICT JUDGE'S ORDER REFUSING TO SET
ASIDE A VERDICT AS EXCESSIVE.  YET BY THE VERY ACT OF PROCEEDING TO
REVIEW THE DISTRICT JUDGE'S ORDER IN THIS CASE, THE COURT NECESSARILY,
AND I THINK QUITE CORRECTLY, COMPLETELY REJECTS THAT ARGUMENT.  I FULLY
AGREE WITH THE COURT AND WITH THE 11 COURTS OF APPEALS THAT "NOTHING IN
THE SEVENTH AMENDMENT (OR IN THE FELA) PRECLUDES APPELLATE REVIEW OF
THE TRIAL JUDGE'S DENIAL OF A MOTION TO SET ASIDE AN AWARD AS
EXCESSIVE."  /0/ 

IN DAGNELLO V. LONG ISLAND R. CO., 289 F.2D 797, THE COURT OF
APPEALS FOR THE SECOND CIRCUIT, IN A THOROUGH AND CAREFULLY CONSIDERED
OPINION WRITTEN BY JUDGE MEDINA, ARTICULATED THE STANDARD TO BE
FOLLOWED BY THAT COURT IN REVIEWING A TRIAL JUDGE'S REFUSAL TO SET
ASIDE A VERDICT AS EXCESSIVE: 

"IF WE REVERSE, IT MUST BE BECAUSE OF AN ABUSE OF DISCRETION.  IF
THE QUESTION OF EXCESSIVENESS IS CLOSE OR IN BALANCE, WE MUST AFFIRM. 
THE VERY NATURE OF THE PROBLEM COUNSELS RESTRAINT.  JUST AS THE TRIAL
JUDGE IS NOT CALLED UPON TO SAY WHETHER THE AMOUNT IS HIGHER THAN HE
PERSONALLY WOULD HAVE AWARDED, SO ARE WE APPELLATE JUDGES NOT TO DECIDE
WHETHER WE WOULD HAVE SET ASIDE THE VERDICT IF WE WERE PRESIDING AT THE
TRIAL, BUT WHETHER THE AMOUNT IS SO HIGH THAT IT WOULD BE A DENIAL OF
JUSTICE TO PERMIT IT TO STAND.  WE MUST GIVE THE BENEFIT OF EVERY DOUBT
TO THE JUDGMENT OF THE TRIAL JUDGE; BUT SURELY THERE MUST BE AN UPPER
LIMIT, AND WHETHER THAT HAS BEEN SURPASSED IS NOT A QUESTION OF FACT
WITH RESPECT TO WHICH REASONABLE MEN MAY DIFFER, BUT A QUESTION OF
LAW.  . . . " ID., AT 806.  I BELIEVE THIS STANDARD OF JUDICIAL REVIEW
IS THE CORRECT ONE AND CAN THINK OF NO BETTER WAY TO VERBALIZE IT. 

IN THE PRESENT CASE JUDGE MEDINA AGAIN WROTE THE PREVAILING
OPINION.  THIS COURT CRITICIZES THAT OPINION FOR NOT SETTING OUT "A
DETAILED APPRAISAL OF THE EVIDENCE BEARING ON DAMAGES."  BUT THE COURT
OF APPEALS DEVOTED SEVERAL PARAGRAPHS TO A REVIEW OF ALL THE RELEVANT
PARTICULARS OF THE PETITIONER'S FINANCIAL LOSS AND PHYSICAL INJURIES,
CONCLUDING ITS DISCUSSION OF THE EVIDENCE WITH THE FOLLOWING PASSAGE: 

"(GIVING GRUNENTHAL THE BENEFIT OF EVERY DOUBT, AND WEIGHING THE
EVIDENCE PRECISELY IN THE SAME MANNER AS WE DID IN DAGNELLO, WHERE THE
LARGE SUM ALLOWED WAS FOUND NOT TO BE EXCESSIVE, WE CANNOT IN ANY
RATIONAL MANNER CONSISTENT WITH THE EVIDENCE ARRIVE AT A SUM IN EXCESS
OF $200,000."  388 F.2D 480, 484. 

WHILE IT IS ARGUABLE THAT A FULLER WRITTEN FACTUAL DISCUSSION MIGHT
HAVE BEEN IN ORDER, I CAN FIND NO REASON TO SUPPOSE THAT THE COURT OF
APPEALS DID NOT APPLY THE STANDARD OF JUDICIAL REVIEW THAT IT SAID IT
WAS APPLYING-- THE STANDARD OF THE DAGNELLO CASE.  SINCE I BELIEVE THAT
STANDARD TO BE THE CORRECT ONE, AND SINCE I FURTHER BELIEVE THAT REVIEW
OF ISSUES OF THIS KIND IN INDIVIDUALIZED PERSONAL INJURY CASES SHOULD
BE LEFT PRIMARILY TO THE COURTS OF APPEALS, I WOULD AFFIRM THE
JUDGMENT. 

/0/  SEE ANTE, AT 157, N. 3. 

MILFORD J. MEYER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS IRVING YOUNGER. 

DANIEL M. GRIBBON ARGUED THE CAUSE FOR RESPONDENT.  ON THE BRIEF WAS
PAUL F. MCARDLE. 
..END :






RECZNIK V. CITY OF LORAIN, 393 U.S. 166 


       RECZNIK V. CITY OF LORAIN. 

        ON PETITIONER FOR CERTIORARI TO THE COURT OF APPEALS OF

           OHIO, LORAIN COUNTY. 

        NO. 323.  DECIDED NOVEMBER 18, 1968. 


POLICE OFFICERS, ON THE BASIS OF TIPS FROM UNIDENTIFIED PERSONS,
"SUSPECTED A CRIME WAS BEING COMMITTED" ON PREMISES OWNED BY
PETITIONER.  THE OFFICERS NOTED AN UNUSUALLY LARGE NUMBER OF CARS
PARKED NEARBY, MET PETITIONER OUTSIDE THE REAR ENTRANCE TO AN UPPER
APARTMENT WHICH WAS LOCATED OVER A CIGAR STORE CLOSED FOR THE NIGHT,
WARNED HIM AGAINST ILLEGAL ACTIVITIES, AND SAID THEY WOULD RETURN. 
THEY RETURNED SHORTLY, SAW SEVERAL MEN ENTER THE APARTMENT, CLIMBED THE
STAIRS, AND ENTERED THROUGH THE REAR DOORWAY UNANNOUNCED.  WHEN
PETITIONER EMERGED FROM A FRONT ROOM TO TELL THE OFFICERS THEY COULD
NOT ENTER, ONE OF THEM THROUGH THE OPEN DOOR SQW A DICE GAME IN
PROGRESS.  THEY ENTERED THE ROOM, ARRESTED EVERYONE PRESENT, AND SEIZED
THE MONEY AND EQUIPMENT USED IN THE GAME.  PETITIONER'S MOTION TO
SUPPRESS THE SEIZED EVIDENCE WAS DENIED, THE COURT RULING THAT THE
OFFICERS "ENTERED THIS PUBLIC ESTABLISHMENT AND OBSERVED GAMBLING BEING
CONDUCTED OPENLY AND IN FULL VIEW."  PETITIONER WAS CONVICTED FOR
KEEPING A GAMBLING PLACE AND EXHIBITING A GAMBLING DEVICE AND THESE
CONVICTIONS WERE AFFIRMED BY THE STATE APPELLATE COURTS.  HELD:
PETITIONER'S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS WERE
INFRINGED BY THE ENTRY OF THE POLICE ONTO HIS PREMISES. 

(A) THERE WAS NO SUPPORT FOR THE FINDING THAT THE APARTMENT WAS A
"PUBLIC ESTABLISHMENT," AS THE CIGAR STORE WAS CLOSED AND HAD A
SEPARATE ENTRANCE, AND THE FACT THAT A LARGE NUMBER OF PERSONS
CONGREGATE IN A PRIVATE HOME DOES NOT TRANSFORM IT INTO A PUBLIC
PLACE. 

(B) ENTRY WAS NOT JUSTIFIED AS INCIDENTAL TO PETITIONER'S ARREST, AS
THE POLICE OFFICERS DID NOT HAVE PROBABLY CAUSE TO BELIEVE THAT A CRIME
WAS BEING COMMITTED.  EVEN WHERE A SEARCH WARRANT IS OBTAINED THE
POLICE MUST SHOW MORE THAN A MERE ASSERTION BY AN UNIDENTIFIED
INFORMER, AND AT LEAST AS MUCH IS NEEDED TO SUPPORT A WARRANTLESS
SEARCH. 

CERTIORARI GRANTED; REVERSED AND REMANDED. 

PER CURIAM. 

ON THENIGHT OF JUNE 10, 1965, TWO POLICE OFFICERS OF THE CITY OF
LORAIN, OHIO, LEFT THEIR ASSIGNED CRUISING DISTRICT AND DROVE TO THE
PREMISES AT 1420-1422 BROADWAY BECAUSE THEY "SUSPECTED A CRIME WAS
BEING COMMITTED" THERE.  THIS SUSPICION WAS FOUNDED UPON TIPS FROM
PERSONS WHO HAD STOPPED THE OFFICERS ON THE STREET.  PETITIONER IS THE
OWNER OF THE BUILDING AT 1420-1422 BROADWAY, WHICH CONTAINS TWO
UNCONNECTED UNITS.  NO. 1420 CONSISTS OF THE GROUND FLOOR AND BASEMENT
AND HOUSES A CIGAR SHOP AND STOREROOM.  NO. 1422 IS A SECOND STORY
SUITE OF ROOMS.  WHEN THE OFFICERS ARRIVED AT THE PREMISES AT
APPROXIMATELY 1 A.M., THEY NOTICED AN UNUSUALLY LARGE NUMBER OF CARS
PARKED IN THE VICINITY.  ACCORDING TO THEIR TESTIMONY THEY MET THE
PETITIONER OUTSIDE THE REAR ENTRANCE TO THE UPSTAIRS SUITE, WARNED HIM
THAT THERE HAD BETTER BE NOTHING ILLEGAL GOING ON INSIDE, AND SAID THEY
WOULD RETURN IN HALF AN HOUR. 

WHEN THEY DID RETURN 20 MINUTES LATER, A LARGE NUMBER OF CARS WERE
STILL PARKED NEAR THE BUILDING, AND THE OFFICERS OBSERVED SEVERAL MEN
ENTERING THE UPSTAIRS APARTMENT.  THE OFFICERS THEN CLIMBED THE STAIRS,
LISTENED TO THE SOUND OF VOICES WITHIN, AND TRIED TO LOOK THROUGH THE
WINDOW AND DOOR.  UNABLE TO SEE INSIDE, THEY WALKED THROUGH THE BACK
DOORWAY UNANNOUNCED.  AS THEY HEADED FOR THE FRONT OF THE APARTMENT,
THE PETITIONER EMERGED FROM A FRONT ROOM AND TOLD THE OFFICERS THEY
COULD NOT ENTER.  THROUGH THE DOOR OPENED BY THE PETITIONER, ONE OF THE
OFFICERS SAW A DICE GAME IN PROGRESS.  THE OFFICERS ENTERED THE ROOM,
PLACED EVERYONE PRESENT UNDER ARREST, AND SEIZED THE TABLE, CHIPS,
DICE, AND MONEY WHICH WERE BEING USED IN THE GAME.  THOSE ARRESTED,
INCLUDING THE PETITIONER, WERE TAKEN TO THE POLICE STATION.  THE POLICE
CONTINUED TO SEARCH THE APARTMENT, AND CAME ACROSS SOME KEYS WHICH THEY
THOUGHT MIGHT OPEN THE STORE AND BASEMENT DOWNSTAIRS.  APPARENTLY
BECAUSE THE OFFICERS "HAD INFORMATION THAT THERE WERE ALL SORTS OF
GAMING DEVICES DOWNSTAIRS," THE STORE AND BASEMENT WERE ALSO SEARCHED
THOROUGHLY, AND VARIOUS NUMBERS GAME PARAPHERNALIA WERE DISCOVERED AND
SEIZED. 

PETITIONER WAS CONVICTED IN THE MUNICIPAL COURT OF LORAIN OF
VIOLATING THREE ORDINANCES WHICH PROHIBIT KEEPING A GAMBLING PLACE,
EXHIBITING A GAMBLING DEVICE, AND POSSESSING A NUMBERS GAME.  HIS
MOTION TO SUPPRESS ALL THE EVIDENCE WHICH HAD BEEN SEIZED AT 1420-1422
BROADWAY WAS DENIED, THE COURT RULING, UPON THE EVIDENCE ABOVE
SUMMARIZED, THAT THE OFFICERS HAD "ENTERED THIS PUBLIC ESTABLISHMENT
AND OBSERVED GAMBLING BEING CONDUCTED OPENLY AND IN FULL VIEW."  ON
APPEAL TO THE COURT OF COMMON PLEAS, THE CONVICTION FOR POSSESSION OF
THE NUMBERS GAME PARAPHERNALIA FOUND IN THE LOWER UNIT OF THE BUILDING
WAS REVERSED.  THE COURT HELD THAT SINCE THE PETITIONER HAD ALREADY
BEEN TAKEN TO THE POLICE STATION AND BOOKED, "THE SEARCH OF THE
STOREROOM IN THIS CASE WAS TOO REMOTE IN TIME TO HAVE BEEN INCIDENTAL
TO THE ARREST."  THE COURT OF APPEALS AFFIRMED THE CONVICTIONS ON THE
TWO REMAINING COUNTS, AND THE SUPREME COURT OF OHIO DISMISSED AN
APPEAL.  SINCE WE HAVE CONCLUDED THAT THE PETITIONER'S RIGHTS UNDER THE
FOURTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION WERE INFRINGED BY
THE ENTRY OF THE POLICE ONTO HIS PREMISES, WE GRANT CERTIORARI AND
REVERSE.  MAPP V. OHIO, 367 U.S. 643. 

THE FINDING OF THE MUNICIPAL COURT THAT THE PETITIONER'S APARTMENT
WAS A "PUBLIC ESTABLISHMENT" HAS NO SUPPORT IN THE RECORD.  WHILE THE
CIGAR STORE WAS USUALLY OPEN TO THE PUBLIC DURING BUSINESS HOURS, IT
WAS CLOSED AND DARK AT THE TIME OF THE ARREST.  THE UPSTAIRS SUITE WAS
AN ENTIRELY SEPARTATE UNIT, WITH A DIFFERENT ADDRESS AND DIFFERENT
ENTRANCES.  THE RESPONDENT'S SUGGESTION THAT THE OFFICERS WERE
PRIVILEGED TO ENTER BECAUSE THE APARTMENT "AT THAT POINT HAD TAKEN ON,
FROM THE AMOUNT OF PEOPLE, A PUBLIC APPEARANCE," IS UNTENABLE.  THE
CONGREGATION OF A LARGE NUMBER OF PERSONS IN A PRIVATE HOME DOES NOT
TRANSFORM IT INTO A PUBLIC PLACE OPEN TO THE POLICE. 

RESPONDENT ARGUES THAT THE ENTRY INTO THE APARTMENT WAS JUSTIFIED AS
INCIDENTAL TO THE ARREST OF THE PETITIONER, WHO THE OFFICERS HAD
PROBABLE CAUSE TO BELIEVE WAS CONDUCTING AN ILLEGAL GAME.  THE SENIOR
ARRESTING OFFICER, HOWEVER, DID NOT SO VIEW THE MATTER, FOR HE CONCEDED
THAT WHEN HE ENTERED THE APARTMENT, HE "HAD NO EVIDENCE TO MAKE AN
ARREST."  NEVERTHELESS, IT IS ARGUED, THE OFFICERS COULD HAVE ENTERED
TO ARREST THE PETITIONER IN VIEW OF THE TIPS RECEIVED FROM INFORMERS
THAT EVENING AND THEIR OWN CORROBORATING OBSERVATIONS OF THE ACTIVITIES
AT THE APARTMENT.  WE CANNOT AGREE THAT THE KNOWLEDGE OF THE OFFICERS
REVEALED BY THIS RECORD AMOUNTED TO PROBABLE CAUSE TO BELIEVE THAT A
CRIME WAS BEING COMMITTED.  THE TESTIMONY OF ONE OFFICER THAT THE
BUILDING WAS A "NOTED GAMBLING JOINT" WAS STRICKEN BY THE TRIAL JUDGE,
AND NO FURTHER EFFORT WAS MADE TO SHOW THAT EITHER THE PETITIONER OR
THE APARTMENT WAS AT THAT TIME CONNECTED WITH ILLICIT GAMBLING
OPERATIONS.  NOR DID THE RESPONDENT EVEN ATTEMPT TO ESTABLISH THAT THE
INFORMERS WERE RELIABLE.  THE OFFICERS IDENTIFIED THESE INFORMERS ONLY
AS "PEOPLE ON THE STREET" WHO WERE PREVIOUSLY UNKNOWN TO THE OFFICERS
AND WHOSE NAMES THEY DID NOT BOTHER TO ASK BECAUSE "THERE WAS NO REASON
FOR IT."  THEY DID NOT RELATE WHAT INFORMATION THEY RECEIVED FROM THESE
NAMELESS INDIVIDUALS OTHER THAN THAT THERE WERE "ALL SORTS OF GAMING
DEVICES DOWNSTAIRS." 

WE HAVE HELD THAT THE PROSECUTION HAS NOT MET ITS BURDEN WHEN AN
ARRESTING OFFICER "SAID NO MORE THAN THAT SOMEONE (HE DID NOT SAY WHO)
HAD TOLD HIM SOMETHING (HE DID NOT SAY WHAT) ABOUT THE PETITIONER." 
BECK V. OHIO, 379 U.S. 89, 97.  EVEN WHERE A SEARCH WARRANT IS
OBTAINED, THE POLICE MUST SHOW A BASIS FOR THE SEARCH BEYOND THE MERE
FACT OF AN ASSERTION BY AN INFORMER.  AGUILAR V. TEXAS, 378 U.S. 108. 
AT LEAST AS MUCH IS REQUIRED TO SUPPORT A SEARCH WITHOUT A WARRANT. 
BECK V. OHIO, SUPRA, AT 96.  SINCE THE RESPONDENT DID NOT MEET THE
BURDEN OF SHOWING PROBABLE CAUSE IN THIS CASE, THE MOTION TO SUPPRESS
SHOULD HAVE BEEN GRANTED. 

THE CONVICTION IS REVERSED, AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE STEWART AND MR. JUSTICE WHITE WOULD DENY THE PETITION
FOR CERTIORARI. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE COURT HERE SUMMARILY REVERSES THE JURY'S CONVICTION OF
PETITIONER, PETE RECZNIK, FOR VIOLATING THE CITY'S LAWS AGAINST KEEPING
A GAMBLING HOUSE AND HAVING POSSESSION OF GAMBLING TABLES AND OTHER
GAMBLING DEVICES.  THE COURT SIMPLY GRANTS CERTIORARI AND REVERSES,
GIVING THE CITY OF LORAIN NO OPPORTUNITY AT ALL TO ARGUE ITS CASE
BEFORE US.  I DISSENT FROM SUCH A HASTY, ILL-CONSIDERED REVERSAL.  TO
REVERSE THE CONVICTION, THIS COURT HOLDS THAT IT WAS ERROR FOR THE
TRIAL COURT TO DENY RECZNIK'S MOTION TO SUPPRESS EVIDENCE OBTAINED IN
PART BY A SEARCH WITHOUT A WARRANT OF THE GAMBLING ESTABLISHMENT. 
HAVING READ THE ENTIRE 388 PAGES OF TESTIMONY, I THINK THAT THEY SHOW
BEYOND DOUBT THAT THERE WAS NO UNLAWFUL SEARCH AND SEIZURE AND I THINK
THAT AN ARGUMENT WOULD REVEAL THAT FACT TO THIS COURT.  THIS IS MADE
CLEAR BY THE PER CUIRAM OPINION'S RELIANCE ON AN ORDER OF JULY 7, 1965,
REFUSING, PRIOR TO TRIAL, TO SUPPRESS THE EVIDENCE.  THIS COURT BASES
ITS REVERSAL ON ITS DISAGREEMENT WITH THE PRETRIAL FINDING THAT
PETITIONER'S GAMBLING HOUSE WAS A "PUBLIC ESTABLISHMENT."  THE COURT
STATES THAT THIS FINDING "HAS NO SUPPORT IN THE RECORD."  WHILE I THINK
THAT THE TESTIMONY CONTAINS FAR MORE THAN ENOUGH EVIDENCE TO SUPPORT A
FINDING THAT THE SO-CALLED "APARTMENT" WAS MAINTAINED AS A PUBLIC
GAMBLING HOUSE, AND NOT AS A PRIVATE RESIDENCE, IT HAPPENS THAT THIS
WAS ONLY AN ALTERNATIVE GROUND FOR THE TRIAL COURT'S REFUSAL TO
SUPPRESS AT THIS PRETRIAL HEARING.  THE OTHER GROUND WAS THIS: 

"THE COURT UPON CONSIDERATION OVERRULES DEFENDANT'S MOTION FOR THE
FOLLOWING REASONS, TO WIT:  THAT NO EVIDENCE OF ANY ILLEGAL SEARCH OR
SEIZURE WAS PRESENTED ORAL AND WRITTEN ARGUMENTS IN SUPPORT OF THIS
MOTION."  THE FACT THAT NO SWORN EVIDENCE WAS PRESENTED TO SUPPORT THE
MOTION TO SUPPRESS WAS, OF COURSE, SUFFICIENT TO DISPOSE OF THE
PRETRIAL MOTION AS THE COURT DID.  THAT THIS FIRST PRETRIAL MOTION IS
NOT NOW RELIED ON BY PETITIONER IS SHOWN BY HIS STATEMENT TO THE COURT
AT THE BEGINNING OF THE TRIAL TO THIS EFFECT: 

"MR. GORDON:  ON THE MOTION TO SUPPRESS THE EVIDENCE IN THIS CASE,
THE COURT IS TO CONSIDER THE EVIDENCE IN THE MAIN CASE THAT WILL BE
PRESENTED TO THE JURY AT THIS TIME AND MAKE ITS DECISION LATER."  AT
THE END OF THE CITY'S EVIDENCE THE MOTION TO SUPPRESS WAS MADE AGAIN
AND DENIED; IT WAS AGAIN MADE AND DENIED AT THE CONCLUSION OF ALL THE
EVIDENCE.  SO IT IS NOT TO THE FIRST PRETRIAL MOTION TO SUPPRESS OF
JULY 7, 1965, THAT WE MUST LOOK BUT TO THE WHOLE RECORD.  THAT RECORD,
IN MY JUDGMENT, SHOWS THAT THE PETITIONER, WHO OWNED THE PREMISES WHICH
HE PERMITTED TO BE USED AS A GAMBLING ESTABLISHMENT, NOT ONLY DID NOT
OBJECT TO THE OFFICERS GOING INTO THE BUILDING BUT ALSO ACTURALLY
INVITED THEM. 

AS THE COURT SAYS, THE BUILDING INTO WHICH THE OFFICERS ENTERED TO
THE PETITIONER, PETE RECZNIK.  HE IS EVIDENTLY A WELL-KNOWN GAMBLER
AROUND TOWN SINCE HE TESTIFIED THAT HE HAD BEEN IN AND OUT OF JAIL FOR
AROUND A QUARTER OF A CENTURY, AS HAD JOHN MICJAN WHOM THE PETITIONER
ASSERTED WAS HIS UPSTAIRS "TENANT" IN THE PRIBATE "APARTMENT" WHICH WAS
FILLED WITH DICE, GAME TABLES, AND OTHER GAMBLING DEVICES.  IN FACT,
MICJAN HAD COME TO THE "APARTMENT" STRAIGHT FROM THE JAIL ONLY A MONTH
OR TWO BEFORE. 

THE ARREST TOOK PLACE IN THE FOLLOWING FACTUAL CONTEXT.  WHILE
POLICE OFFICER KOCHAN WAS CRUISING AROUND THE STREETS SOMEONE TOLD HIM
THAT GAMBLING WAS GOING ON AT RECZNIK'S BUILDING.  HE AND HIS PARTNER
DECIDED TO GO UP AND LOOK AROUND IN THE AREA OF THE BUILDING.  NOW, OF
COURSE, THIS STREE INFORMATION THEY HAD RECEIVED WOULD NOT ALONG HAVE
BEEN ENOUGH TO GIVE PROBABLE CAUSE EITHER FOR A SEARCH WARRANT OR AN
ARREST.  NOR DID THE OFFICERS TREAT IT AS ENOUGH.  IT WAS ENOUGH,
HOWEVER, FOR THE OFFICERS TO INVESTIGATE, WHICH THEY DID.  THEY WENT TO
THE BUILDING ABOUT MIDNIGHT AND SAW SIGNS OF EXTRAORIDINARY ACTIVITIES
AROUND IT.  WHILE THE BOTTOM FLOOR WAS DARK, THE UPSTAIRS, WHERE THE
GAMBLING PARAPHERNALIA WERE LOCATED, WAS WELL LIGHTED.  THEY SAW ABOUT
40 TO 50 AUTOMOBILES PARKED IN THE FRONT AND REAR OF THE BUILDING. 
THEY OBSERVED MEN COMING IN CARS, GETTING OUT, GOING UP THE BACK
STAIRS, AND ENTERING THE UPSTAIRS ROOMS WITHOUT ANY DIFFICULTY
WHATEVER.  THEY OBSERVED SOMEONE UPSTAIRS PEEPING AT THEM THROUGH
VENETIAN BLINDS AND SHORTLY THEREAFTER PETITIONER RECZNIK CAME OUT AND
TALKED WITH THEM.  RECZNIK DID NOT THEN OR AT ANY TIME ORDER THE
OFFICERS NOT TO COME UP.  INSTEAD, ACCORDING TO PETITIONER RECZNIK'S
OWN TESTIMONY, HE TOLD OFFICER KOCHAN THAT THEY WERE HAVING A PARTY
UPSTAIRS AND, ADDRESSING THE OFFICER DIRECTLY SAID:  "IF YOU WANT TO
COME UP YOU CAN COME UP."  AGAIN, RECZNIK TESTIFIED:  "I TOLD HIM THE
FIRST TIME, WE HAD A PARTY, THAT HE WAS INVITED UP.  HE SAYS, 'I WILL
BE BACK LATER.'" 

AFTER THESE INVITATIONS THE OFFICERS WENT AWAY AND CAME BACK ABOUT 1
A.M., FINDING THE PLACE STILL LIGHTED AND FILLED WITH PEOPLE.  THE
OFFICERS WALKED UP THE BACK STEPS, WHERE THEY HAD SEEN THE OTHERS
WALKING IN AND OUT.  THEY SAW MANY PEOPLE THERE.  RECZNIK TESTIFIED
THAT THEY PULLED THE SCREEN DOOR OFF ITS HINGES.  THE OFFICERS DENIED
IT AND OBVIOUSLY NEITHER THE JURY THAT CONVICTED NOR THE JUDGE THAT
REFUSED TO SUPPRESS THE EVIDENCE BELIEVED RECZNIK.  ONCE INSIDE, THE
OFFICERS MET RECZNIK.  RECZNIK TESTIFIED AS FOLLOWS IN RESPONSE TO
QUESTIONS FROM THE PROSECUTING ATTORNEY: 

     "Q.  THERE HAS BEEN A LOT OF TALK ABOUT A WARRANT.  DID YOU
ASK HIM TO SEE A WARRANT? 

     "A.  NO, I DIDN'T SAY NOTHING. 

     "Q.  DID YOU TELL HIM TO STAY OUT? 

     "A.  NO. ABSOLUTELY NOT. 

     "Q.  DID YOU SAY, 'YOU CAN'T COME IN HERE?' 

     "A.  NO. 

     "Q.  YOU JUST SAID, 'WHAT DO YOU WANT?' 

     "A.  I SAID, 'WHAT DO YOU WANT.' 

        .          .   .          . 

     "Q.  DID YOU TELL HIM 'YOU CAN'T SEARCH THIS PLACE?' 

     "A.  ABSOLUTELY NOT.  WHY WOULD I TELL HIM THAT?" 

        .          .          .          . OFFICER KOCHAN TESTIFED
THAT HE SAW DICE AND OTHER GAMBLING DEVICES THAT WHEN RECZNIK OPENED
THE DOOR TO ANOTHER ROOM HE, KOCHAN, LOOKED OVER RECZNIK'S SHOULDER AND
SAW MANY PEOPLE GAMBLING ON A LARGE DICE TABLE UPON WHICH WAS MONEY AND
A GREEN TABLE COVERING.  MICJAN EXPLAINED THE PRESENCE OF THE MONEY AND
DICE TABLE IN THIS ILLUMINATING WAY:  THE MONEY, $213, HE HAD FOUND ON
THE STREET IN A PURSE; THE LARGE DICE TABLE HAD BEEN BROUGHT TO HIM BY
STRANGERS AND LEFT IN HIS "APARTMENT."  THE MOMENT KOCHAN (WHO HAD BEEN
INVITED BY RECZNIK TO COME TO THE "PARTY") SAW ALL THESE GAMBLING
PARAPHERNALIA, SAW THE PEOPLE WITH MONEY IN THEIR HANDS CRYING OUT IN
GAMBLER'S LANGUAGE "I FADE YOU," HE STATED THAT ALL THERE WERE UNDER
ARREST.  THAT WAS HIS DUTY.  OHIO LAW PROVIDES THAT AN OFFICER SEEING A
PERSON COMMITTING A MISDEMEANOR HAS A DUTY TO ARREST.  SINCE THE ARREST
WAS LEGAL, THE OFFICER THEN HAD THE AUTHORITY TO SEARCH THE REMAINDER
OF THE BUILDING WITHOUT A WARRANT.  THIS HE DID.  AND WHEN THE CASE GOT
TO THE JURY IT PROMPTLY CONVICTED.     THERE IS NO CASE DECIDED BY THIS
COURT THAT CALLS FOR A REVERSAL HERE ON THE GROUND THAT THE OFFICER
LACKED PROBABLE CAUSE TO ARBREST FOR THE MISDEMEANORS HE ACTUALLY SAW
COMMITTED.  ONE WHO WILL TAKE THE TIME TO READ THIS ENTIRE RECORD AS I
HAVE WILL FIND, I THINK, THAT THIS GAMBLING ESTABLISHMENT WAS SO
NOTORIOUS IN LORAIN THAT IT IS NOT AT ALL SURPRISING THAT STRANGERS TO
THE POLICE WERE URGING THEM TO DO SOMETHING ABOUT IT.  I WONDER IF IN
ADDITION TO HAVING ITS JUST CONVICTION REVERSED THE CITY OF LORAIN WILL
BE COMPELLED TO RETURN TO THEIR GUILTY OWNERS THE DICE, DICE TABLES,
AND OTHER GAMBLING DEVICES THAT THE OFFICERS TOOK AWAY AS CONTRABAND. 
I REGRET VERY MUCH THAT THIS COURT, BY ITS HASTY, SUMMARY REVERSAL, IS
PROVIDING ITS CRITICS WITH SUCH CHOICE AMMUNITION FOR THIER ATTACKS. 

I WOULD DENY CERTIORARI.  IF, HOWEVER, FOUR MEMBERS OF THE COURT ARE
DETERMINED TO GRANT CERTIORARI, I WOULD SET THE CASE FOR ARGUMENT IN
THE CONVENTIONAL FASHION AND THE NORMAL WAY. 

MEYER GORDON FOR PETITIONER. 

HENRY T. WEBBER FOR RESPONDENT. 
..END :
















B. & O.R. CO. V. ABERDEEN & R.R. CO., 393 U.S. 87 


       BALTIMORE & OHIO RAILROAD CO. ET AL. V. ABERDEEN & ROCKFISH

           RAILROAD CO. ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

      DISTRICT OF LOUISIANA. 

        NO. 13.  ARGUED OCTOBER 17, 1968.-- DECIDED NOVEMBER 12,

           1968.  /0/ 


THE INTERSTATE COMMERCE COMMISSION (ICC), PURSUANT TO SEC. 15(6) OF
THE INTERSTATE COMMERCE ACT, ORDERED NEW DIVISIONS FOR NORTH-SOUTH
JOINT RAIL RATES, FINDING THAT THE NORTHERN LINES' COSTS WARRANTED AN
INCREASED SHARE OF THE REVENUES.  THE NORTH-SOUTH TRAFFIC, THE COSTS
FOR WHICH WERE NOT ISOLATED IN THE ICC'S FINDINGS, REPRESENTS 6% OF THE
TOTAL NORTH TRAFFIC AND 21.4% OF THE TOTAL SOUTH TRAFFIC.  THE AVERAGE
COSTS USED BY THE ICC RELATE TO ALL NORTHERN AND ALL SOUTHERN TRAFFIC,
ALTHOUGH 80% OF ALL NORTHERN TRAFFIC IS INTRA-TERRITORIAL.  THE
DISTRICT COURT RULED THAT TERRITORIAL AVERAGE COSTS DID NOT MEET THE
STATUTORY REQUIREMENTS FOR PRECISE AND RELEVANT FINDINGS ABSENT
EVIDENCE RELATING THE TERRITORIAL AVERAGE TO NORTH-SOUTH TRAFFIC, AND
HELD THAT THE ICC'S ORDER WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND
REASONED FINDINGS, AND REMANDED FOR FURTHER PROCEEDINGS.  HELD: 

1.  WHILE MATHEMATICAL PRECISION AND EXACTITUDE ARE NOT REQUIRED,
THE NATURE AND VOLUME OF THE TRAFFIC MUST BE KNOWN AND EXPOSED, IF
COSTS ARE TO GOVERN RATE DIVISIONS.  PP. 91-92. 

2.  IF AVERAGE TERRITORIAL COSTS ARE SHOWN TO BE A DISTORTION WHEN
APPLIED TO PARTICULAR NORTH-SOUTH TRAFFIC, RELIANCE ON ADMINISTRATIVE
"EXPERTISE" IS NOT SUFFICIENT, BUT IT MUST BE SHOWN THAT THERE IS, INF
FACT, NO BASIC MATERIAL DIFFERENCE, OR THERE MUST BE AN ADJUSTMENT
WHICH FAIRLY REFLECTS THE DIFFERENCE IN COSTS.  PP. 92-93. 

3.  ON REMAND THE ICC MUST MAKE SPECIFIC FINDINGS TO ADJUST AVERAGE
TERRITORIAL COSTS WITH RESPECT TO COMMUTER DEFICITS, INTERCHANGE OF
CARS IN NORTH-SOUTH TRAFFIC AT TERRITORIAL BORDER POINTS, AND EMPTY
FREIGHT CAR RETURN RATIOS.  PP. 93-95. 

270 F.SUPP.  695, AFFIRMED AS MODIFIED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN THESE CASES THE INTERSTATE COMMERCE COMMISSION UNDERTOOK TO
PRESCRIBE JUST, REASONABLE, AND EQUITABLE DIVISIONS OF JOINT RATES
PURSUANT TO SEC. 15(6) OF THE INTERSTATE COMMERCE ACT, 24 STAT. 384, AS
AMENDED.  /1/  THE COMMISSION FOUND THAT EXISTING DIVISIONS VIOLATED
SEC. 15(6) BECAUSE THEY ALLOCATED TO NORTHERN LINES A LESSER SHARE OF
THE REVENUES FROM THE JOINT RATES THAN WOULD BE WARRANTED BY THEIR
SHARE OF THE EXPENDITURES MADE IN PROVIDING THE JOINT SERVICE.  325
I.C.C. 1, 50. 

THE SOUTHERN LINES BROUGHT SUIT BEFORE A THREE-JUDGE DISTRICT COURT
TO ENJOIN AND TO SET ASIDE THE COMMISSION'S ORDER.  THE DISTRICT COURT
SET ASIDE THE COMMISSION'S ORDER AND REMANDED THE CASE FOR FURTHER
PROCEEDINGS.  270 F.SUPP.  695.  WE NOTED PROBABLE JURISDICTION.  390
U.S. 940. 

BOTH NORTHERN AND SOUTHERN LINES USED RAIL FORM A AS THEIR BASIC
FORMULA, THAT FORM BEING A RAIL FREIGHT FORMULA FOR DETERMINING FREIGHT
SERVICE COSTS WHICH UTILIZES THE EXPENSES AND STATISTICS FOR A GIVEN
YEAR AS REPORTED TO THE COMMISSION BY THE CARRIERS AND SUPPLEMENTED BY
SPECIAL STUDIES OF THE CARRIERS. 

THE SOUTHERN LINES PROPOSED 12 ADJUSTMENTS, FIVE OF WHICH THE
COMMISSION ACCEPTED AND SEVEN OF WHICH IT REJECTED.  THE YEAR 1956 WAS
THE ONE BOTH SOUTHERN AND NORTHERN LINES USED IN THE FINAL COST
ANALYSIS.  THE COST LEVEL FOR THAT YEAR, SAID THE COMMISSION, WAS
HIGHER IN THE NORTH THAN IN THE SOUTH FOR LIKE SERVICES; AND IT
CONCLUDED THAT THAT SITUATION WOULD MOST LIKELY CONTINUE IN THE
IMMEDIATE FUTURE.  IN THAT YEAR THE NORTHERN LINES RECEIVED 44.64% OF
THE REVENUES WHILE INCURRING 46.35318% OF THE FULLY DISTRIBUTED COSTS. 
ACCORDINGLY, THE COMMISSION PRESCRIBED NEW DIVISIONS BASED ON THE FULLY
DISTRIBUTED COSTS AND DIVIDED THE REVENUES IN THE SAME PROPORTION TO
THOSE COSTS.  THE SHIFT IN REVENUES RESULTING FROM THE NEW DIVISIONS
WAS APPROXIMATELY $8,000,000 A YEAR, GIVING THE NORTHERN LINES AN
OVERALL INCREASE IN REVENUES FROM THE TRAFFIC INVOLVED OF 3.5% AND
REDUCING THE REVENUES OF SOUTHERN LINES BY ABOUT 3%. 

WHEN THE SOUTHERN LINES SUED TO SET ASIDE THE NEW DIVISIONS, THE
NORTHERN LINES INTERVENED AS DEFENDANTS.  THE DISTRICT COURT HELD THAT
THE COMMISSION'S ORDER WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND
REASONED FINDINGS WITHIN THE MEANING OF SECS. 8(B) /2/  AND 10(E) /3/
OF THE ADMINISTRATIVE PROCEDURE ACT AND, AS NOTED, REMANDED THE CASE
FOR FURTHER PROCEEDINGS. 

THE PRESENT PROBLEM OF DIVISIONS DEALS ONLY WITH NORTH-SOUTH TRAFFIC
WHICH REPRESENTS 6% OF THE TOTAL TRAFFIC OF THE NORTH AND 21.4% OF THE
TOTAL TRAFFIC OF THE SOUTH.  THE COSTS OF THAT NORTH-SOUTH TRAFFIC ARE
NOT ISOLATED IN THE FINDINGS.  THE AVERAGE COST USED RELATE RTO ALL
NORTHERN TRAFFIC AND TO ALL SOUTHERN TRAFFIC.  NEARLY 80% OF THE TOTAL
NORTHERN TRAFFIC IS INTRA-TERRITORIAL AND HANDLED ENTIRELY IN THE
NORTH, AND IT IS THEREFORE ARGUED THAT THAT TRAFFIC HAS THE DOMINANT
INFLUENCE ON THE NORTHERN AVERAGE.  AS THE DISTRICT COURT SAID, IT IS
DIFFICULT TO MAINTAIN THAT THESE INTRA-TERRITORIAL NORTHERN COSTS ARE
THE SAME OR APPROXIMATELY THE SAME AS NORTHERN COSTS IN HANDLING
TRAFFIC BETWEEN NORTH AND SOUTH.  IN ANOTHER DIVISIONS CASE, THE
COMMISSION RULED THAT TERRITORIAL AVERAGE COSTS ARE ENTITLED TO LITTLE
WEIGHT IN DETERMINING THE COSTS OF HANDLING PARTICULAR MOVEMENTS.  THE
USE OF "UNSIFTED AVERAGES" OF COSTS DOES NOT NECESSARILY ESTABLISH
GREATER COSTS EITHER IN RATE CASES (ICC V. MECHLING, 330 U.S. 567, 583)
OR IN DIVISIONS CASES.  THE RULING OF THE DISTRICT COURT WAS, NOT THAT
TERRITORIAL AVERAGE COSTS COULD NOT BE USED CONSISTENTLY WITH THE
STATUTORY REQUIREMENTS FOR PRECISE AND RELEVANT FINDINGS WITHOUT ANY
EVIDENCE RELATING THE TERRITORIAL AVERAGE COSTS TO NORTH-SOUTH
TRAFFIC.  WHILE SOUTHERN LINES HAD OFFERED EVIDENCE SHOWING THE COSTS
OF HANDLING NORTH-SOUTH TRAFFIC IN THE SOUTH, THERE WAS NOT ALWAYS ANY
SUCH NORTHERN OFFER; NOR DID THE COMMISSION ALWAYS EXERCISE ITS
UNDOUBTED AUTHORITY TO GATHER IT ON ITS OWN. 

ON THE QUESTION WHETHER TERRITORIAL AVERAGE COSTS REPRESENT COSTS OF
THE NORTH-SOUTH TRAFFIC, THE COMMSSION ONLY REPLIES THAT WHERE
PARTICULAR TRAFFIC USES PHYSICAL FACILITIES AND EMPLOYEES' SERVICES IN
COMMON WITH OTHER TRAFFIC "AND HAS BEEN SHOWN TO HAVE NO DISTINGUISHING
CHARACTERISTICS," THE APPLICATION OF RAIL FORM A COSTS IS PROPER.  YET
THE COMMISSION STATED "ITS EXCLUSIVE STANDARD" FOR RESOLVING THIS
DIVISIONS QUESTION TO BE "THE RELEVANT COST OF HANDLING THE SPECIFIC
FREIGHT TRAFFIC TO WHICH THE DIVISIONS APPLY."  270 F.SUPP.,AT 710. 

WE AGREE WITH THE DISTRICT COURT THAT THERE IS NO SUBSTANTIAL
EVIDENCE THAT TERRITORIAL AVERAGE COSTS ARE NECESSARILY THE SAME AS THE
COMPARATIVE COSTS INCURRED IN HANDLING NORTH-SOUTH FREIGHT TRAFFIC.  IF
WE WERE TO REVERSE THE DISTRICT COURT, WE WOULD IN EFFECT BE SAYING
THAT THE EXPERTISE OF THE COMMISSION IS SO GREAT THAT WHEN IT SAYS THAT
AVERAGE TERRITORIAL COSTS FAIRLY REPRESENT THE COSTS OF NORTH-SOUTH
TRAFFIC, THE CONTROVERSY IS AT AN END, EVEN THOUGH THE RECORD DOES NOT
REVEAL WHAT THE NATURE OF THAT NORTH-SOUTH TRAFFIC IS.  THE REQUIREMENT
FOR ADMINISTRATIVE DECISIONS BASED ON SUBSTANTIAL EVIDENCE AND REASONED
FINDINGS-- WHICH ALONE MAKE EFFECTIVE JUDICIAL REVIEW POSSIBLE-- WOULD
BECOME LOST IN THE HAZE OF SO-CALLED EXPERTISE.  ADMINISTRATIVE
EXPERTISE WOULD THEN BE ON ITS WAY TO BECOMING "'A MONSTER WHICH RULES
WITH NO PRACTICAL LIMITS ON ITS DISCRETION.'"  BURLINGTON TRUCK LINES
V. UNITED STATES, 371 U.S. 156, 167.  THAT IS IMPERMISSIBLE UNDER THE
ADMINISTRATIVE PROCEDURE ACT.  IF INDEED THAT LAX PROCEDURE WERE
SANCTIONED IN A NORTH-SOUTH DIVISIONS CASE, WHOSE SOLUTION TURNS SOLELY
ON COSTS, THE CLASS RATE DISCRINATION IN FAVOR OF THE NORTH AND AGAINST
THE SOUTH WHICH WE CONDEMNED IN NEW YORK V. UNITED STATES, 331 U.S.
284, COULD WELL FLOURISH IN ANOTHER FORM. 

RAIL FORM A WAS USED IN CHICAGO & N.W.R. CO. V. ATCHISON, T. &
S.F.R. CO., 387 U.S. 326, AND WE APPROVED ITS USE.  MOREOVER, EVER
SINCE THE NEW ENGLAND DISVISIONS CASE, 261 U.S. 184, AT 196-197, IT HAS
BEEN HELD THAT MATHEMATICAL EXACTNESS IN DIVIDING EACH RATE OF EACH
CARRIER IS NOT NECESSARY, BECAUSE PRACTICAL NECESSITIES DEMAND
OTHERWISE.  IN ADDITION WE REPEAT WHAT WE SAID IN CHICAGO & N.W.R. CO.
V. ATCHISON, T. & S.F.R. CO., SUPRA, AT 358, THAT THERE ARE NO
"MECHANICAL RESTRICTIONS ON THE RANGE OF REMEDIES FROM WHICH THE
COMMISSION MAY CHOOSE" IN SOLVING A DIVISIONS CASE OR MAKING ITS EXPERT
JUDGMENT AS TO WHAT SCALE OF COSTS SHOULD BE USED IN MAKING THE
ALLOCATION.  PRECISION AND EXACTITUDE IN THE MATHEMATICAL SENSE ARE NOT
POSSIBLE.  YET THE NATURE AND VOLUME OF THE TRAFFIC IN QUESTION MUST BE
KNOWN AND EXPOSED, IF THE COSTS OF OTHER TRAFFIC ARE TO GOVERN A
DIVISION OF RATES.  MOREOVER WHERE RAIL FORM A COSTS ARE SHOWN TO BE A
DISTORTION WHEN APPLIED TO THE PARTICULAR TRAFFIC OVER WHICH THE
DIVISIONS DISPUTE ARISES, SOME EFFORT MUST BE EXERTED TO MAKE AN
ADJUSTMENT WHICH FAIRLY REFLECTS THE DIFFERENCE IN THE COSTS OR TO MAKE
CLEAR THAT THERE IS IN FACT NO BASIC, MATERIAL DIFFERENCE.  THE
COMMISSION STATES TO US THAT IT CANNOT BE EXPECTED TO KNOW WHETHER
PECULIAR CHARACTERISTICS MAY EXIST RESPECTING THE TRAFFIC INVOLVED IN
THE DIVISIONS DISPUTE OR WHETHER SPECIAL STUDIES MAY BE NEEDED.  YET IF
THAT IS TRUE, THE COMMISSION'S EXPERTISE IS NOT EQUAL TO THE TASK AND
THE OPPOSED CARRIERS MUST BE DIRECTED TO EXPOSE THE VARIOUS VERSIONS OF
THE CONFLICT SO THAT THE COMMISSION MAY MAKE ITS INFORMED DECISION. 
THAT WAS DONE ON ASPECTS OF THE PRESENT CASES (325 I.CC.,AT 25) AND NO
REASON IS APPARENT WHY IT CANNOT BE DONE ON OTHER ASPECTS OF THE
CONTROVERSY. 

THE COMMISSION IN ITS ARGUMENT BEFORE US SAID THAT RAIL FORM A
TERRITORIAL AVERAGE COSTS WERE "ADJUSTED" TO REFLECT THE COSTS
ATTIRBUTABLE TO THE NORTH-SOUTH TRAFFIC ISSUE, WHICH IS TRUE AS
RESPECTS FIVE /4/  OF THE 12 ADJUSTMENTS PROPOSED BY THE SOUTHERN
LINES. 

ON REMAND OF THE CASES TO THE COMMISSION WE THINK SPECIFIC FINDINGS
MUST BE MADE ON THE SEVERAL ITEMS OF SO-CALLED "ADJUSTMENT" OF AVERAGE
TERRITORIAL COSTS TO WHICH WE NOW TURN. 

ONE IS THE QUESTION OF COMMUTER DEFICITS, WHICH SWELL THE AVERAGE
TERRITORIAL COSTS IN THE NORTH WHILE THEY ARE LESS IMPORTANT IN THE
SOUTH THAT DOES NOT YET HAVE SUBSTANTIAL COMMUTER OPERATIONS. 
PASSENGER DEFICITS GENERALLY ARE CONSIDERED AS PART OF THE COSTS OF
PROVIDING FREIGHT SERVICE, SINCE THE COMMON FACILITIES THAT SUPPORT
EACH MUST BE MAINTAINED FOR BOTH TYPES OF SERVICE.  THERE IS, HOWEVER,
EVIDENCE THAT IN SOME TERRITORIES AS MUCH AS ONE-HALF OF THE TRACK
FACILITIES ARE MAINTAINED SOLELY BECAUSE OF THE COMPANY'S SUBURBAN
SERVICE AND EVEN A LARGER PROPORTION OF OTHER FACILITIES SUCH AS
STATIONS, TERMINALS, COACH YARDS, AND REPAIR SHOPS IS MAINTAINED
EXCLUSIVELY FOR COMMUTER SERVICE. 

THE COMMISSION, HOWEVER, RULED THAT COSTS OF COMMUTER SERVICE
INCLUDE "COMMON COSTS WHICH MUST BE INCURRED TO PROVIDE FREIGHT SERVICE
OR INTERCITY PASSENGER SERVICE" AND THAT THE DEFICIT FROM SUBURBAN
OPERATIONS WAS PROPERLY INCLUDED IN "THE CONSTANT COSTS."  THE
COMMISSION ON THE OTHER HAND FOUND THAT "MANY INDIVIDUAL ITEMS OF
SUBURBAN SERVICE CAN BE CONSIDERED SOLELY RELATED . . . TO SUBURBAN
SERVICE."  325 I.C.C.,AT 78.  HOW THESE TWO FINDINGS CAN BE RECONCILED
IS NOT APPARENT.  THE COMMISSION IN ITS ARGUMENT BEFORE US RESTS
PRIMARILY ON REVENUE NEEDS-- "SUCH LOSSES MUST BE RECOVERED FROM
RAILROAD FREIGHT OPERATIONS IF RAILROADS ARE TO REMAIN SOLVENT." 
DIVISIONS CASES.  REVENUE PROBLEMS UNDER SEC. 15(6) AT TIMES HAVE
RESULTED IN PUTTING A PARTY OF ONE AREA'S TRANSPORTATION COSTS UPON
OTHER SECTIONS OF THE COUNTRY.  SEE NEW ENGLAND DIVISIONS CASE, 261
U.S. 184, 191-195.  BUT THAT ISSUE IS NOT PRESENTED IN THESE CASES. 
THE ISSUE IN THE PRESENT CASES WAS COSTS, NOT REVENUE.  /5/  THE
ALLOCATION EITHER TO THE NORTH OR TO THE SOUTH OF COSTS PECULIAR TO ITS
TERRITORIAL TRAFFIC IS A TASK WITH WHICH THE COMMISSION IS FAMILIAR. 
THUS IN THESE VERY CASES IT EXCLUDED CERTAIN PLATFORM DEFICITS INCURRED
BY THE NORTHERN LINES BECAUSE THEY WERE NOT RELATED TO NORTH-SOUTH
FREIGHT TRAFFIC.  325 I.C.C.,AT 56.  THERE IS NO APPARENT REASON WHY
COSTS RELATED SOLELY TO COMMUTER SERVICE IN THE NORTH CANNOT BE
DETERMINED. 

AS TO THE COSTS OF INTERCHANGING CARS IN NORTH-SOUTH TRAFFIC AT
TERRITORIAL BORDER POINTS, THERE IS EVIDENCE IN THE RECORD THAT THE
INTERCHANGE OPERATIONS PERFORMED BY NORTHERN LINES ARE NO MORE COSTLY
THAN THOSE PERFORMED BY SOUTHERN LINES.  YET THE COMMISSION ALLOWED THE
NORTHERN LINES A BORDER INTERCHANGE COST THAT IS 58% HIGHER THAN THE
ONE ALLOWED THE SOUTHERN LINES.  THAT APPARENTLY WAS DONE SOLELY
BECAUSE RAIL FORM A SHOWED HIGHER INTERCHANGE COSTS WHEN ALL
TERRITORIAL INTERCHANGES WERE CONSIDERED.  WE CANNOT BRIDGE THE GAP BY
BLIND RELIANCE ON EXPERTISE WHICH IN THIS INSTANCE WOULD BE A MERE
ASSERTION THAT NO DIFFERENCE MEANS A SUBSTANTIAL DIFFERENCE. 

THE EMPTY FREIGHT CAR RETURN RATIOS IS ANOTHER EXAMPLE OF DEFICIENT
FINDINGS.  THERE IS EVIDENCE THAT HIGHER COSTS OF NORTHERN LINES RESULT
FROM THE COMMISSION'S USE OF HIGHER NORTHERN TERRITORIAL AVERAGE EMPTY
RETURN RATIOS.  THERE WAS NO ATTEMPT MADE TO SHOW THAT THE LATTER WERE
AT ALL APPLICABLE TO NORTH-SOUTH TRAFFIC.  THE PROBLEM ARISES IN THE
NORTH BY REASON OF BOXCARS ON SHUTTLE FROM DETROIT TO AUTOMOBILE
PLANTS, MOST OF WHICH ARE IN THE NORTH.  THESE SHUTTLE BOXCARS RETURN
EMPTY TO DETROIT.  WE KNOW FROM THE RECORD THAT THIS IS A MAJOR COST
ITEM AS 800,000 CARLOADS OF AUTOMOBILE PARTS MOVE OUT OF DETROIT EACH
YEAR.  THE RECORD DOES NOT SHOW THE EXTENT TO WHICH THESE EMPTY RETURNS
SWELL THE TERRITORIAL AVERAGE COSTS IN THE NORTH, THOUGH IT DOES SHOW
THAT NORTHERN USE OF THESE SHUTTLE BOXCARS IS SUBSTANTIALLY HIGHER THAN
THE SOUTHERN PROPORTION.  THE DISTRICT COURT CONCLUDED THE TERRITORIAL
AVERAGE BOXCAR EMPTY RETURN RATIOS COULD NOT BE SAID, ABSENT SPECIFIC
FINDINGS, TO REFLECT THE COSTS OF THE NORTH-SOUTH FREIGHT TRAFFIC
RELEVANT TO THIS PROBLEM OF DIVISIONS. 

THERE ARE OTHER PROPOSED ADJUSTMENTS /6/  ON WHICH WE THINK THE
COMMISSION'S FINDINGS ARE ADEQUATE. 

THE JUDGEMENT OF THE DISTRICT COURT IS MODIFIED AND AS MODIFIED IT
IS

AFFIRMED. 

/0/  TOGETHER WITH NO. 15, INTERSTATE COMMERCE COMMISSION V.
ABERDEEN & ROCKFISH RAILROAD CO. ET AL., ON APPEAL FROM THE SAME
COURT. 

/1/  49 U.S.C. 15(6) PROVIDES IN RELEVANT PART: 

"WHENEVER . . . THE COMMISSION IS OF OPINION THAT THE DIVISIONS OF
JOINT RATES, FARES, OR CHARGES, APPLICABLE TO THE TRANSPORTATION OF
PASSENGERS OR PROPERTY, ARE OR WILL BE UNJUST, UNREASONABLE,
INEQUITABLE, OR UNDULY PREFERENTIAL . . . THE COMMISSION SHALL BY ORDER
PRESCRIBE THE JUST, REASONABLE, AND EQUITABLE DIVISIONS THEREOF TO BE
RECEIVED BY THE SEVERAL CARRIERS.  . . . IN SO PRESCRIBING AND
DETERMINING THE DIVISIONS OF JOINT RATES, FARES, AND CHARGES, THE
COMMISSION SHALL GIVE DUE CONSIDERATION, AMONG OTHER THINGS, TO THE
EFFICIENCY WITH WHICH THE CARRIERS CONCERNED ARE OPERATED, THE AMOUNT
OF REVENUE REQUIRED TO PAY THEIR RESPECTIVE OPERATING EXPENSES, TAXES,
AND A FAIR RETURN ON THEIR RAILWAY PROPERTY HELD FOR AND USED IN THE
SERVICE OF TRANSPORTATION, AND THE IMPORTANCE TO THE PUBLIC OF THE
TRANSPORTATION SERVICES OF SUCH CARRIERS; AND INTERMEDIATE, OR
DELIVERING LINE, AND ANY OTHER FACT OR CIRCUMSTANCE WHICH WOULD
ORDINARILY, WITHOUT REGARD TO THE MILEAGE HAUL, ENTITLE ONE CARRIER TO
A GREATER OR LESS PROPORTION THAN ANOTHER CARRIER OF THE JOINT RATE,
FARE, OR CHARGE."     /2/  SECTIONS 8(B), 60 STAT. 242, NOW 5 U.S.C.
557(C) (1964 ED., SUPP. III), PROVIDES IN RELEVANT PART: 

"THE RECORD SHALL SHOW THE RULING ON EACH FINDING, CONCLUSION, OR
EXCEPTION PRESENTED.  ALL DECISIONS, INCLUDING INITIAL, RECOMMENDED,
AND TENTATIVE DECISIONS, ARE A PART OF THE RECORD AND SHALL INCLUDE A
STATEMENT OF-- 

"(A) FINDINGS AND CONCLUSIONS, AND THE REASONS OR BASIS THEREFOR, ON
ALL THE MATERIAL ISSUES OF FACT, LAW, OR DISCRETION PRESENTED ON THE
RECORD; AND 

(B) THE APPROPRIATE RULE, ORDER, SANCTION, RELIEF, OR DENIAL
THEREOF." 

/3/  SECTION 10(E), 60 STAT. 243, NOW 5 U.S.C. 706 (1964 ED., SUPP.
III), PROVIDES IN RELEVANT PART: 

"THE REVIEWING COURT SHALL . . . 

"(2) HOLD UNLAWFUL AND SET ASIDE AGENCY ACTION, FINDINGS, AND
CONCLUSIONS FOUND TO BE . . . 

"(E) UNSUPPORTED BY SUBSTANTIAL EVIDENCE.  . . . " 

/4/  THESE FIVE CONSTITUTED WAY AND THROUGH TRAIN SEPARATION,
PLATFORM COSTS, SWITCHING AND TERMINAL COMPANIES, SHORT LINES (CLASS II
RAILRAODS), TRAIN TONNAGE ADJUSTMENT-- ALL AS DISCUSSED IN APPENDIX B
TO THE COMMISSION'S OPINION.  325 I.C.C.,AT 55 ET SEQ. 

/5/ ON REVENUE NEEDS THE COMMISSION SAID: 

"WE FIND THAT NO AFFIRMATIVE REASONS APPEAR IN THIS RECORD WHICH
WOULD WARRANT ANY ADJUSTMENT OF THE DIVISIONS IN QUESTION OVER AND
ABOVE THE RELATIVE COSTS OF SERVICE, EITHER ON THE GROUNDS OF GREATER
REVENUE NEEDS OR OTHERWISE."  325 I.C.C.,AT 49. 

/6/  CAR COSTS.  THE SOUTHERN LINES SOUGHT TO SUBSTITUTE AVERAGE CAR
COSTS FOR THE ENTIRE COUNTRY IN LIEU OF RAIL FORM A TERRITORIAL
AVERAGE.  THE COMMISSION CONCLUDED THAT THE "USE OF A NATIONAL AVERAGE
CAR COST CONCEALS TERRITORIAL DIFFERENCES IN COST WHICH ARE IMPORTANT
IN THE CONSIDERATION OF DIVISIONS BETWEEN THE TWO INVOLVED
TERRITORIES."  325 I.C.C.,AT 64. 

CARS INTERCHANGED BETWEEN RAIL AND WATER CARRIERS AT PORTS.  THE
SOUTHERN AND NORTHERN LINES SUBMITTED OPPOSED EVIDENCE AND BIEWS AND
THE COMMISSION CONCLUDED THAT THE COUNT OF CARS IN RAIL FORM A WAS
WARRANTED.  325 I.C.C.,AT 58-60. 

TRANSIT COMMODITIES.  THEY MOVE UNDER A SINGLE PUBLISHED RATE AND
RECEIVE SOME KIND OF STORAGE OR PROCESSING IN TRANSIT AND THE RATE
COVERS THE MOVEMENT OF THE RAW MATERIAL INTO AND THE MOVEMENT OF THE
FINISHED PRODUCT BEYOND THE TRANSIT OR PROCESSING POINT.  THE SOUTHERN
LINES WOULD INCLUDE DEFICITS ON PULPWOOD AND WET PHOSPHATE ROCK WHICH
THEY CLAIM TO BE RELATED IN TRANSIT TO THE OUTBOUND MOVEMENT OF PAPER
PRODUCTS AND DRY PHOSPHATE ROCK.  BUT THESE WERE INTRATERRITORIAL COSTS
OF THE SOUTHERN LINES WHICH THE COMMISSION FOUND WERE NOT PROPERLY
TRANSFERABLE TO THE INTERTERRITORIAL COSTS, THE ONLY COSTS PERTINENT TO
THIS DIVISIONS CASE.  325 I.C.C.,AT 80. 

SWITCHING COSTS.  THE SOUTHERN LINES MADE SPECIAL STUDIES OF
SWITCHING COSTS WHICH THE COMMISSION REVIEWED AT LENGTH.  325 I.C.C.,AT
71-77.  THE NORTHERN LINES SOUGHT TO DISCREDIT THE STUDIES AND THE
SAMPLE ON WHICH THEY RESTED.  THE COMMISSION TOOK RAIL FORM A
TERRITORIAL AVERAGE SWITCHING COSTS AS THE MOST ACCURATE MEASURE OF THE
RELATIVE SWITCHING COSTS, SAYING: 

"TERRITORIAL AVERAGE COSTS ARE PARTICULARLY APPROPRIATE TO THE
TRAFFIC IN THIS CASE BECAUSE IT IS A LARGE AND VARIED BODY OF TRAFFIC
MOVING TO AND COMING FROM TERMINALS IN ALL PARTS OF BOTH TERRITORIES. 
IN OUR OPINION, AND WE SO FIND, THE DEPRESSING EFFECT, IF ANY, OF
VOLUME SWITCHING COMMODITIES ON THE AVERAGE WOULD AFFECT BOTH
TERRITORIES AND, FOR PURPOSES OF COMPARISON, WOULD BE LARGELY
OFFSETTING."  325 I.C.C.,AT 76.  CONTRARY TO THE DISTRICT COURT, WE
BELIEVE THESE ARE ADEQUATE FINDINGS. 

EDWARD A. KAIER ARGUED THE CAUSE FOR APPELLANTS IN NO. 13.  WITH HIM
ON THE BRIEFS WERE JOSEPH F. ESHELMAN, RICHARD B. MONTGOMERY, JR.,
EUGENE E. HUNT, KENNETH H. LUNDMARK, AND KEMPER A. DOBBINS.  ARTHUR J.
CERRA ARGUED THE CAUSE FOR APPELLANT IN NO. 15.  WITH HIM ON THE BRIEF
WAS ROBERT W. GINNANE. 

HOWARD J. TRIENENS ARGUED THE CAUSE FOR THE SOUTHERN RAILROAD
APPELLEES.  WITH HIM ON THE BRIEF WERE ASHTON PHELPS, GEORGE L.
SAUNDERS, JR., JOHN W. ADAMS, PHIL C. BEVERLY, JAMES A. BISTLINE, JAMES
W. HOELAND, JOHN E. MCCULLOUGH, AND DONALD L. TURKAL.  CARL E. SANDERS
ARGUED THE CAUSE FOR APPELLEES SOUTHERN GOVERNORS'  CONFERENCE ET AL.
WITH HIM ON THE BRIEFS WAS WALTER R. MCDONALD. 
..END :
















EPPERSON V. ARKANSAS, 393 U.S. 97 


       EPPERSON ET AL. V. ARKANSAS. 

        APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

        NO. 7.  ARGUED OCTOBER 16, 1968.-- DECIDED NOVEMBER 12,

           1968. 


APPELLANT EPPERSON, AN ARKANSAS PUBLIC SCHOOL TEACHER, BROUGHT THIS
ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF CHALLENGING THE
CONSTITUTIONALITY OF ARKANSAS'"ANTI-EVOLUTION" STATUE.  THAT STATUTE
MAKES IT UNLAWFUL FOR A TEACHER IN ANY STATE-SUPPORTED SCHOOL OR
UNIVERSITY TO TEACH OR TO USE A TEXTBOOK THAT TEACHES "THAT MANKIND
ASCENDED OR DESCENDED FROM A LOWER ORDER OF ANIMALS."  THE STATE
CHANCERY COURT HELD THE STATUTE AN ABRIDGMENT OF FREE SPEECH VIOLATING
THE FIRST AND FOURTEENTH AMENDMENTS.  THE STATE SUPREME COURT,
EXPRESSING NO OPINION AS TO WHETHER THE STATUTE PROHIBITS "EXPLANATION"
OF THE THEORY OR ONLY TEACHING THAT THE THEORY IS TRUE, REVERSED THE
CHANCERY COURT.  IN A TWO-SENTENCE OPINION IT SUSTAINED THE STATUTE AS
WITHIN THE STATE'S POWER TO SPECIFY THE PUBLIC SCHOOL CURRICULUM. 
HELD:  THE STATUTE VIOLATED THE FOURTEENTH AMENDMENT, WHICH EMBRACES
THE FIRST AMENDMENT'S PROHIBITION OF STATE LAWS RESPECTING AN
ESTABLISHMENT OF RELIGION.  PP. 102-109. 

(A) THE COURT DOES NOT DECIDE WHETHER THE STATUTE IS
UNCONSTITUTIONALLY VAGUE, SINCE, WHETHER IT IS CONSTRUED TO PROHIBIT
EXPLAINING THE DARWINIAN THEORY OR TEACHING THAT IT IS TRUE, THE LAW
CONFLICTS WITH THE ESTABLISHMENT CLAUSE.  PP. 102-103. 

(B) THE SOLE REASON FOR THE ARKANSAS LAW IS THAT A PARTICULAR
RELIGIOUS GROUP CONSIDERS THE EVOLUTION THEORY TO CONFLICT WITH THE
ACCOUNT OF THE ORIGIN OF MAN SET FORTH IN THE BOOK OF GENESIS.  PP.
103, 107-109. 

(C) THE FIRST AMENDMENT MANDATES GOVERNMENTAL NEUTRALITY BETWEEN
RELIGION AND RELIGION, AND BETWEEN RELIGION AND NONRELIGION.  PP. 103
107. 

(D) A STATE'S RIGHT TO PRESCRIBE THE PUBLIC SCHOOL CURRICULUM DOES
NOT INCLUDE THE RIGHT TO PROHIBIT TEACHING A SCIENTIFIC THEORY OR
DOCTRINE FOR REASONS THAT RUN COUNTER TO THE PRINCIPLES OF THE FIRST
AMENDMENT.  P. 107. 

(E) THE ARKANSAS LAW IS NOT A MANIFESTATION OF RELIGIOUS
NEUTRALITY.  P. 109. 

242 ARK. 922, 416 S.W.2D 322, REVERSED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

      I. 

THIS APPEAL CHALLENGES THE CONSTITUTIONALITY OF THE "ANTI-EVOLUTION"
STATUTE WHICH THE STATE OF ARKANSAS ADOPTED IN 1928 TO PROHIBIT THE
TEACHING IN ITS PUBLIC SCHOOLS AND UNIVERSITIES OF THE THEORY THAT MAN
EVOLVED FROM OTHER SPECIES OF LIFE.  THE STATUTE WAS A PRODUCT OF THE
UPSURGE OF "FUNDAMENTALIST" RELIGIOUS FERVOR OF THE TWENTIES.  THE
ARKANSAS STATUTE WAS AN ADAPTATION OF THE FAMOUR TENNESSEE "MONKEY LAW"
WHICH THAT STATE ADOPTED IN 1925.  /1/  THE CONSTITUTIONALITY OF THE
TENNESSEE LAW WAS UPHELD BY THE TENNESSEE SUPREME COURT IN THE
CELEBRATED SCOPES CASE IN 1927.  /2/ 

THE ARKANSAS LAW MAKES IT UNLAWFUL FOR A TEACH IN ANY STATE
SUPPORTED SCHOOL OR UNIVERSITY "TO TEACH THE THEORY OR DOCTRINE THAT
MANKIND ASCENDED OR DESCENDED FROM A LOWER ORDER OF ANIMALS."  OR "TO
ADOPT OR USE IN ANY SUCH INSTITUTION A TEXTBOOK THAT TEACHES" THIS
THEORY.  VIOLATION IS A MISDEMEANOR AND SUBJECTS THE VIOLATOR TO
DISMISSAL FROM HIS POSITION.  /3/ 

THE PRESENT CASE CONCERNS THE TEACHING OF BIOLOGY IN A HIGH SCHOOL
IN LITTLE ROCK.  ACCORDING TO THE TESTIMONY, UNTIL THE EVENTS HERE IN
LITIGATION, THE OFFICIAL TEXTBOOK FURNISHED FOR THE HIGH SCHOOL BIOLOGY
COURSE DID NOT HAVE A SECTION ON THE DARWINIAN THEORY.  THEN, FOR THE
ACADEMIC YEAR 1965-1966, THE SCHOOL ADMINISTRATION, ON RECOMMENDATION
OF THE TEACHERS OF BIOLOGY IN THE SCHOOL SYSTEM, ADOPTED AND PRESCRIBED
A TEXTBOOK WHICH CONTAINED A CHAPTER SETTING FORTH "THE THEORY ABOUT
THE ORIGIN . . . OF MAN FROM A LOWER FORM OF ANIMAL." 

SUSAN EPPERSON, A YOUNG WOMAN WHO GRADUATED FROM ARKANSAS' SCHOOL
SYSTEM AND THEN OBTAINED HER MASTER'S DEGREE IN ZOOLOGY AT THE
UNIVERSITY OF ILLINOIS, WAS EMPLOYED BY THE LITTLE ROCK SCHOOL SYSTEM
IN THE FALL OF 1964 TO TEACH 10TH GRADE BIOLOGY AT CENTRAL HGIH
SCHOOL.  AT THE START OF THE NEXT ACADEMIC YEAR, 1965, SHE WAS
CONFRONTED BY THE NEW TEXTBOOK (WHICH ONE SURMISES FROM THE RECORD WAS
NOT UNWELCOME TO HER).  SHE FACED AT LEAST A LITERAL DILEMMA BECAUSE
SHE WAS SUPPOSED TO USE THE NEW TEXTBOOK FOR CLASSROOM INSTRUCTION AND
PRESUMABLY TO TEACH THE STATUTORILY CONDEMNED CHAPTER; BUT TO DO SO
WOULD BE A CRIMINAL OFFENSE AND SUBJECT HER TO DISMISSAL. 

SHE INSTITUTED THE PRESENT ACTION IN THE CHANCERY COURT OF THE
STATE, SEEKING A DECLARATION THAT THE ARKANSAS STATUTE IS VOID AND
ENJOINING THE STATE AND THE DEFENDANT OFFICIALS OF THE LITTLE ROCK
SCHOOL SYSTEM FROM DISMISSING HER FOR VIOLATION OF THE STATUTE'S
PROVISIONS.  H. H. BLANCHARD, A PARENT OF CHILDREN ATTENDING THE PUBLIC
SCHOOLS, INTERVENED IN SUPPORT OF THE ACTION. 

THE CHANCERY COURT, IN AN OPINION BY CHANCELLOR MURRAY O. REED, HELD
THAT THE STATUTE VIOLATED THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.  /4/  THE COURT NOTED THAT THIS AMENDMENT ENCOMPASSES THE
PROHIBITIONS UPON STATE INTERFERENCE WITH FREEDOM OF SPEECH AND THOUGH
WHICH ARE CONTAINED IN THE FIRST AMENDMENT.  ACCORDINGLY, IT HELD THAT
THE CHALLENGED STATUTE IS UNCONSTITUTIONAL BECAUSE, IN VIOLATION OF THE
FIRST AMENDMENT, IT "TENDS TO HINDER THE QUEST FOR KNOWLEDGE, RESTRICT
THE FREEDOM TO LEARN, AND RESTRAIN THE FREEDOM TO TEACH."  /5/  IN THIS
PERSPECTIVE, THE ACT, IT HELD, WAS AN UNCONSTITUTIONAL AND VOID
RESTRAINT UPON THE FREEDOM OF SPEECH GUARANTEED BY THE CONSTITUTION. 

ON APPEAL, THE SUPREME COURT OF ARKANSAS REVERSED.  /6/  ITS TWO
SENTENCE OPINION IS SET FORTH IN THE MARGIN.  /7/  IT SUSTAINED THE
STATUTE AS AN EXERCISE OF THE STATE'S POWER TO SPECIFY THE CURRICULUM
IN PUBLIC SCHOOLS.  IT DID NOT ADDRESS ITSELF TO THE COMPETING
CONSTITUTIONAL CONSIDERATIONS. 

APPEAL WAS DULY PROSECUTED TO THIS COURT UNDER 28 U.S.C. 1257(2). 
ONLY ARKANSAS AND MISSISSIPPI HAVE SUCH "ANTI-EVOLUTION" OR "MONKEY"
LAWS ON THEIR BOOKS.  /8/  THERE IS NO RECORD OF ANY PROSECUTIONS IN
ARKANSAS UNDER ITS STATUTE.  IT IS POSSIBLE THAT THE STATUTE IS
PRESENTLY MORE OF A CURIOSITY THAN A VITAL FACT OF LIFE IN THESE
STATES.  /9/  NEVERTHELESS, THE PRESENT CASE WAS BROUGHT THE APPEAL AS
OF RIGHT IS PROPERLY HERE, AND IT IS OUR DUTY TO DECIDE THE ISSUES
PRESENTED. 

        II. 

AT THE OUTSET, IT IS URGED UPON US THAT THE CHALLENGED STATUTE IS
VAGUE AND UNCERTAIN AND THEREFORE WITHIN THE CONDEMNATION OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE CONTENTION THAT THE
ACT IS VAGUE AND UNCERTAIN IS SUPPORTED BY LANGUAGE IN THE BRIEF
OPINION OF ARKANSAS' SUPREME COURT.  THAT COURT, PERHAPS REFLECTING THE
DISCOMFORT WHICH THE STATUTE'S QUIXOTIC PROHIBITION NECESSARILY
ENGENDERS IN THE MODERN MIND, /10/  STATED THAT IT "EXPRESSES NO
OPINION" AS TO WHETHER THE ACT PROHIBITS "EXPLANATION" OF THE THEORY OF
EVOLUTION OR MERELY FORBIDS "TEACHING THAT THE THEORY IS TRUE." 
REGARDLESS OF THIS UNCERTAINTY, THE COURT HELD THAT THE STATUTE IS
CONSTITUTIONAL. 

ON THE OTHER HAND, COUNSEL FOR THE STATE, IN ORAL ARGUMENT IN THIS
COURT, CANDIDLY STATED THAT, DESPITE THE STATE SUPREME COURT'S
EQUIVOCATION, ARKANSAS WOULD INTERPRET THE STATUTE "TO MEAN THAT TO
MAKE A STUDENT AWARE OF THE THEORY . . . JUST TO TEACH THAT THERE WAS
SUCH A THEORY" WOULD BE GROUNDS FOR DISMISSAL AND FOR PROSECUTION UNDER
THE STATUTE; AND HE SAID "THAT THE SUPREME COURT OF ARKANSAS' OPINION
SHOULD BE INTERPRETED IN THAT MANNER."  HE SAID:  "IF MRS. EPPERSON
WOULD TELL HER STUDENTS THAT 'HERE IS DARWIN'S THEORY, THAT MAN
ASCENDED OR DESCENDED FROM A LOWER FORM OF BEING,' THEN I THINK SHE
WOULD BE UNDER THIS STATUTE LIABLE FOR PROSECUTION." 

IN ANY EVENT, WE DO NOT REST OUR DECISION UPON THE ASSERTED
VAGUENESS OF THE STATUTE.  ON EITHER INTERPRETATION OF ITS LANGUAGE,
ARKANSAS' STATUTE CANNOT STAND.  IT IS OF NO MOMENT WHETHER THE LAW IS
DEEMED TO PROHIBIT MENTION OF DARWIN'S THEORY, OR TO FORBID ANY OR ALL
OFTHE INFINITE VARIETIES OF COMMUNICATION EMBRACED WITHIN THE TERM
"TEACHING."  UNDER EITHER INTERPRETATION, THE LAW MUST BE STRICKEN
BECAUSE OF ITS CONFLICT WITH THE CONSTITUTIONAL PROHIBITION OF STATE
LAWS RESPECTING AN ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE
EXERCISE THEREOF.  THE OVERRIDING FACT IS THAT ARKANSAS' LAW SELECTS
FROM THE BODY OF KNOWLEDGE A PARTICULAR SEGMENT WHICH IT PROSCRIBES FOR
THE SOLE REASON THAT IT IS DEEMED TO CONFLICT WITH A PARTICULAR
RELIGIOUS DOCTRINE; THAT IS, WITH A PARTICULAR INTERPRETATION OF THE
BOOK OF GENESIS BY A PARTICULAR RELIGIOUS GROUP.  /11/

        III. 

THE ANTECEDENTS OF TODAY'S DECISION ARE MANY AND UNMISTAKABLE.  THEY
ARE ROOTED IN THE FOUNDATION SOIL OF OUR NATION.  THEY ARE FUNDAMENTAL
TO FREEDOM. 

GOVERNMENT IN OUR DEMOCRACY, STATE AND NATIONAL, MUST BE NEUTRAL IN
MATTERS OF RELIGIOUS THEORY, DOCTRINE, AND PRACTICE.  IT MAY NOT BE
HOSTILE TO ANY RELIGION OR TO THE ADVOCACY OF NO-RELIGION; AND IT MAY
NOT AID, FOSTER, OR PROMOTE ONE RELIGION OR RELIGIOUS THEORY AGAINST
ANOTHER OR EVEN AGAINST THE MILITANT OPPOSITE.  THE FIRST AMENDMENT
MANDATES GOVERNMENTAL NEUTRALITY BETWEEN RELIGION AND RELIGION, AND
BETWEEN RELIGION AND NONRELIGION.  /12/ 

AS EARLY AS 1872, THIS COURT SAID:  "THE LAW KNOWS NO HERESY, AND IS
COMMITTED TO THE SUPPORT OF NO DOGMA, THE ESTABLISHMENT OF NO SECT." 
WATSON V. JONES, 13 WALL.  679, 728.  THIS HAS BEEN THE INTERPRETATION
OF THE GREAT FIRST AMENDMENT WHICH THIS COURT HAS APPLIED IN THE MANY
AND SUBTLE PROBLEMS WHICH THE FERMENT OF OUR NATIONAL LIFE HAS
PRESENTED FOR DECISION WITHIN THE AMENDMENT'S BROAD COMMAND. 

JUDICIAL INTERPOSITION IN THE OPERATION OF THE PUBLIC SCHOOL SYSTEM
OF THE NATION RAISES PROBLEMS REQUIRING CARE AND RESTRAINT.  OUR
COURTS, HOWEVER, HAVE NOT FAILED TO APPLY THE FIRST AMENDMENT'S MANDATE
IN OUR EDUCATIONAL SYSTEM WHERE ESSENTIAL TO SAFEGUARD THE FUNDAMENTAL
VALUES OF FREEDOM OF SPEECH AND INQUIRY AND OF BELIEF.  BY AND LARGE,
PUBLIC EDUCATION IN OUR NATION IS COMMITTED TO THE CONTROL OF STATE AND
LOCAL AUTHORITIES.  COURTS DO NOT AND CANNOT INTERVENE IN THE
RESOLUTION OF CONFLICTS WHICH ARISE IN THE DAILY OPERATION OF SCHOOL
SYSTEMS AND WHICH DO NOT DIRECTLY AND SHARPLY IMPLICATE BASIC
CONSTITUTIONAL VALUES.  /13/  ON THE OTHER HAND, "(THE VIGILANT
PROTECTION OF CONSTITUTIONAL FREEDOMS IS NOWHERE MORE VITAL THAN IN THE
COMMUNITY OF AMERICAN SCHOOLS," SHELTON V. TUCKER, 364 U.S. 479, 487
(1960).  AS THIS COURT SAID IN KEYISHIAN V. BOARD OF REGENTS, THE FIRST
AMENDMENT "DOES NOT TOLERATE LAWS THAT CAST A PALL OF ORTHODOXY OVER
THE CLASSROOM."  385 U.S. 589, 603 (1967). 

THE EARLIEST CASES IN THIS COURTON THE SUBJECT OF THE IMPACT OF
CONSTITUTIONAL GUARANTEES UPON THE CLASSROOM WERE DECIDED BEFORE THE
COURT EXPRESSLY APPLIED THE SPECIFIC PROHIBITIONS OF THE FIRST
AMENDMENT TO THE STATES.  BUT AS EARLY AS 1923, THE COURT DID NOT
HESITATE TO CONDEMN UNDER THE DUE PROCESS CLAUSE "ARBITRARY"
RESTRICTIONS UPON THE FREEDOM OF TEACHERS TO TEACH AND OF STUDENTS TO
LEARN.  IN THAT YEAR, THE COURT, IN AN OPINION BY JUSTICE MCREYNOLDS,
HELD UNCONSTITUTIONAL AN ACT OF THE STATE OF NEBRASKA MAKING IT A CRIME
TO TEACH ANY SUBJECT IN ANY LANGUAGE OTHER THAN ENGLISH TO PUPILS WHO
HAD NOT PASSED THE EIGHTH GRADE.  /14/  THE STATE'S PURPOSE IN ENACTING
THE LAW WAS TO PROMOTE CIVIC COHESIVENESS BY ENCOURAGING THE LEARNING
OF ENGLISH AND TO COMBAT THE "BANEFUL EFFECT" OF PERMITTING FOREIGNERS
TO REAR AND EDUCATE THEIR CHILDREN IN THE LANGUAGE OF THE PARETS'
NATIVE LAND.  THE COURT RECOGNIZED THESE PURPOSES, AND IT ACKNOWLEDGED
THE STATE'S POWER TO PRESCRIBE THE SCHOOL CURRICULUM, BUT IT HELD THAT
THESE WERE NOT ADEQUATE TO SUPPORT THE RESTRICTION UPON THE LIBERTY OF
TEACH AND PUPIL.  THE CHALLENGED STATUTE, IT HELD, UNCONSTITUTIONALLY
INTERFERED WITH THE RIGHT OF THE INDIVIDUAL, GUARANTEED BY THE DUE
PROCESS CLAUSE, TO ENGAGE IN ANY OF THE COMMON OCCUPATIONS OF LIFE AND
TO ACQUIRE USEFUL KNOWLEDGE.  MEYER V. NEBRASKA, 262 U.S. 390 (1923). 
SEE ALSO BARTELS V. IOWA, 262 U.S. 404 (1923). 

FOR PURPOSES OF THE PRESENT CASE, WE NEED NOT RE-ENTER THE DIFFICULT
TERRAIN WHICH THE COURT, IN 1923, TRAVERSED WITHOUT APPARENT
MISGIVINGS.  WE NEED NOT TAKE ADVANTAGE OF THE BOARD PREMISE WHICH THE
COURT'S DECISION IN MEYER FURNISHES, NOR NEED WE EXPLORE THE
IMPLICATIONS OF THAT DECISION IN TERMS OF THE JUSTICIABILITY OF THE
MULTITUDE OF CONTROVERSIES THAT BESET OUR CAMPUSES TODAY.  TODAY'S
PROBLEM IS CAPABLE OF RESOLUTION IN THE NARROWER TERMS OF THE FIRST
AMENDMENT'S PROHIBITION OF LAWS RESPECTING AN ESTABLISHMENT OF RELIGION
OR PROHIBITING THE FREE EXERCISE THEREOF. 

THERE IS AND CAN BE NO DOUBT THAT THE FIRST AMENDMENT DOES NOT
PERMIT THE STATE TO REQUIRE THAT TEACHING AND LEARNING MUST BE TAILORED
TO THE PRINCIPLES OR PROHIBITIONS OF ANY RELIGIOUS SECT OR DOGMA.  IN
EVERSON V. BOARD OF EDUCATION, THIS COURT, IN UPHOLDING A STATE LAW TO
PROVIDE FREE BUS SERVICE TO SCHOOL CHILDREN, INCLUDING THOSE ATTENDING
PAROCHIAL SCHOOLS, SAID:  "NEITHER (A STATE NOR THE FEDERAL GOVERMENT)
CAN PASS LAWS WHICH AID ONE RELIGION, AID ALL RELIGIONS, OR PREFER ONE
RELIGION OVER ANOTHER."  330 U.S. 1, 15 (1947). 

AT THE FOLLOWING TERM OF COURT, IN MCCOLLUM V. BOARD OF EDUCATION,
333 U.S. 203 (1948), THE COURT HELD THAT ILLINOIS COULD NOT RELEASE
PUPILS FROM CLASS TO ATTEND CLASSES OF INSTRUCTION IN THE SCHOOL
BUILDINGS IN THE RELIGION OF THEIR CHOICE.  THIS, IT SAID, WOULD
INVOLVE THE STATE IN USING TAX-SUPPORTED PROPERTY FOR RELIGIOUS
PURPOSES, THEREBY BREACHING THE "WALL OF SEPARATION" WHICH, ACCORDING
TO JEFFERSON, THE FIRST AMENDMENT WAS INTENDED TO ERECT BETWEEN CHURCH
AND STATE.  ID., AT 211.  SEE ALSO ENGEL V. VITALE, 370 U.S. 421
(1962); ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203 (1963). 
WHILE STUDY OF RELIGIONS AND OF THE BIBLE FROM A LITERARY AND HISTORIC
VIEWPOINT, PRESENTED OBJECTIVELY AS PART OF A SECULAR PROGRAM OF
EDUCATION, NEED NOT COLLIDE WITH THE FIRST AMENDMENT'S PROHIBITION, THE
STATE MAY NOT ADOPT PROGRAMS OR PRACTICES IN ITS PUBLIC SCHOOLS OR
COLLEGES WHICH "AID OR OPPOSE" ANY RELIGION.  ID., AT 225.  THIS
PROHIBITION IS ABSOLUTE.  IT FORBIDS ALIKE THE PREFERENCE OF A
RELIGIOUS DOCTRINE OR THE PROHIBITION OF THEORY WHICH IS DEEMED
ANTAGONISTIC TO A PARTICULAR DOGMA.  AS MR. JUSTICE CLARK STATED IN
JOSEPH BURSTYN, INC. V. WILSON, "THE STATE HAS NO LEGITIMATE INTEREST
IN PROTECTING ANT OR ALL RELIGIONS FROM VIEWS DISTASTEFUL TO THEM.  . .
. "  343 U.S. 495, 505 (1952).  THE TEST WAS STATED AS FOLLOWS IN
ABINGTON SCHOOL DISTRICT V. SCHEMPP, SUPRA, AT 222:  "(WHAT ARE THE
PURPOSE AND THE PRIMARY EFFECT OF THE ENACTMENT?  IF EITHER IS THE
ADVANCEMENT OR INHIBITION OF RELIGION THEN THE ENACTMENT EXCEEDS THE
SCOPE OF LEGISLATIVE POWER AS CIRCUMSCRIBED BY THE CONSTITUTION." 

THESE PRECEDENTS INEVITABLY DETERMINE THE RESULT IN THE PRESENT
CASE.  THE STATE'S UNDOUBTED RIGHT TO PRESCRIBE THE CURRICULUM FOR ITS
PUBLIC SCHOOLS DOES NOT CARRY WITH IT THE RIGHT TO PROHIBIT, ON PAIN OF
CRIMINAL PENALTY, THE TEACHING OF A SCIENTIFIC THEORY OR DOCTRINE WHERE
THAT PROHIBITION IS BASED UPON REASONS THAT VIOLATE THE FIRST
AMENDMENT.  IT IS MUCH TOO LATE TO ARGUE THAT THE STATE MAY IMPOSE UPON
THE TEACHERS IN ITS SCHOOLS ANY CONDITIONS THAT IT CHOOSES, HOWEVER
RESTRICTIVE THEY MAY BE OF CONSTITUTIONAL GUARANTEES.  KEYISHIAN V.
BOARD OF REGENTS, 385 U.S. 589, 605-606 (1967).     IN THE PRESENT
CASE, THERE CAN BE NO DOUBT THAT ARKANSAS HAS SOUGHT TO PREVENT ITS
TEACHERS FROM DISCUSSING THE THEORY OF EVOLUTION BECAUSE IT IS CONTRARY
TO THE BELIEF OF SOME THAT THE BOOK OF GENESIS MUST BE THE EXCLUSIVE
SOURCE OF DOCTRINE AS TO THE ORIGIN OF MAN.  NO SUGGESTION HAS BEEN
MADE THAT ARKANSAS' LAW MAY BE JUSTIFIED BY CONSIDERATIONS OF STATE
POLICY OTHER THAN THE RELIGIOUS VIEWS OF SOME OF ITS CITIZENS.  /15/
IT IS CLEAR THAT FUNDAMENTALIST SECTARIAN CONVICTION WAS AND IS THE
LAW'S REASON FOR EXISTENCE.  /16/  ITS ANTECEDENT, TENNESSE'S "MONKEY
LAW," CANDIDLY STATED ITS PURPOSE:  TO MAKE IT UNLAWFUL "TO TEACH ANY
THEORY THAT DENIES THE STORY OF THE DIVINE CREATION OF MAN AS TAUGHT IN
THE BIBLE, AND TO TEACH INSTEAD THAT MAN HAS DESCENDED FROM A LOWER
ORDER OF ANIMALS."  /17/  PERHAPS THE SENSATIONAL PUBLICITY ATTENDANT
UPON THE SCOPES TRIAL INDUCED ARKANSAS TO ADOPT LESS EXPLICIT
LANGUAGE.  /18/  IT ELIMINATED TENNESSEE'S REFERENCE TO "THE STORY OF
THE DIVINE CREATION OF MAN" AS TAUGHT IN THE BIBLE, BUT THERE IS NO
DOUBT THAT THE MOTIVATION FOR THE LAW WAS THE SAME:  TO SUPPRESS THE
TEACHING OF A THEORY WHICH, IT WAS THOUGHT, "DENIED" THE DIVINE
CREATION OF MAN. 

ARKANSAS' LAW CANNOT BE DEFENDED AS AN ACT OF RELIGIOUS NEUTRALITY. 
ARKANSAS DID NOT SEEK TO EXCISE FROM THE CURRICULA OF ITS SCHOOLS AND
UNIVERSITIES ALL DISCUSSION OF THE ORIGIN OF MAN.  THE LAW'S EFFORT WAS
CONFINED TO AN ATTEMPT TO BLOT OUT A PARTICULAR THEORY BECAUSE OF ITS
SUPPOSED CONFLICT WITH THE BIBLICAL ACCOUNT, LITERALLY READ.  PLAINLY,
THE LAW IS CONTRARY TO THE MANDATE OF THE FIRST, AND IN VIOLATION OF
THE FOURTEENTH AMENDMENT TO THE CONSTITION. 

THE JUDGMENT OF THE SUPREME COURT OF ARKANSAS IS

              REVERSED. 

/1/ CHAPTER 27, TENN. ACTS 1925; TENN. CODE ANN. SEC. 49-1922 (1966
REPL.  VOL.). 

/2/  SCOPES V. STATE, 154 TENN. 105, 289 S.W. 363 (1927).  THE
TENNESSEE COURT, HOWEVER, REVERSED SCOPES' CONVICTION ON THE GROUND
THAT THE JURY AND NOT THE JUDGE SHOULD HAVE ASSESSED THE FINE OF $100. 
SINCE SCOPES WAS NO LONGER IN THE STATE'S EMPLOY, IT SAW "NOTHING TO BE
GAINED BY PROLONGING THE LIFE OF THIS BIZARRE CASE."  IT DIRECTED THAT
A NOLLE PROSEQUI BE ENTERED, IN THE INTERESTS OF "THE PEACE AND DIGNITY
OF THE STATE."  154 TENN.,AT 121, 289 S.W., AT 367. 

/3/  INITIATED ACT NO. 1, ARK. ACTS 1929; ARK. STAT. ANN. SECS. 80
1627, 80-1628 (1960 REPL.  VOL.).  THE TEXT OF THE LAW IS AS FOLLOWS: 

"SEC. 80-1627.-- DOCTRINE OF ASCENT OR DESCENT OF MAN FROM LOWER
ORDER OF ANIMALS PROHIBITED.-- IT SHALL BE UNLAWFUL FOR ANY TEACHER OR
OTHER INSTRUCTOR IN ANY UNIVERSITY, COLLEGE, NORMAL, PUBLIC SCHOOL, OR
OTHER INSTITUTION OF THE STATE, WHICH IS SUPPORTED IN WHOLE OR IN PART
FROM PUBLIC FUNDS DERIVED BY STATE AND LOCAL TAXATION TO TEACH THE
THEORY OR DOCTRINE THAT MANKIND ASCENDED OR DESCENDED FROM A LOWER
ORDER OF ANIMALS AND ALSO IT SHALL BE UNLAWFUL FOR ANY TEACHER,
TEXTBOOK COMMISSION, OR OTHER AUTHORITY EXERCISING THE POWER TO SELECT
TEXTBOOKS FOR ABOVE MENTIONED EDUCATIONAL INSTITUTIONS TO ADOPT OR USE
IN ANY SUCH INSTITUTION A TEXTBOOK THAT TEACHES THE DOCTRINE OR THEORY
THAT MANKIND DESCENDED OR ASCENDED FROM A LOWER ORDER OF ANIMALS. 

"SEC. 80-1628.-- TEACHING DOCTRINE OR ADOPTING TEXTBOOK MENTIONING
DOCTRINE-- PENALTIES-- POSITIONS TO BE VACATED.-- ANY TEACHER OR OTHER
INSTRUCTOR OR TEXTBOOK COMMISSIONER WHO IS FOUND GUILTY OF VIOLATION OF
THIS ACT BY TEACHING THE THEORY OR DOCTRINE MENTIONED IN SECTION 1
HEREOF, OR BY USING, OR ADOPTING ANY SUCH TEXTBOOKS IN ANY SUCH
EDUCATIONAL INSTITUTION SHALL BE GUILTY OF A MISDEMEANOR AND UPON
CONVICTION SHALL BE FINED NOT EXCEEDING FIVE HUNDRED DOLLARS; AND UPON
CONVICTION SHALL VACATE THE POSITION THUS HELD IN ANY EDUCATIONAL
INSTITUTIONS OF THE CHARACTER ABOVE MENTIONED OR ANY COMMISSION OF
WHICH HE MAY BE A MEMBER." 

/4/  THE OPINION OF THE CHANCERY COURT IS NOT OFFICIALLY REPORTED. 

/5/  THE CHANCERY COURT ANALYZED THE HOLDING OF ITS SISTER STATE OF
TENNESSEE IN THE SCOPES CASE SUSTAINING TENNESSEE'S SIMILAR STATUTE. 
IT REFUSED TO FOLLOW TENNESSEE'S 1927 EXAMPLE.  IT DECLINED TO CONFINE
THE JUDICIAL HORIZON TO A VIEW OF THE LAW AS MERELY A DIRECTION BY THE
STATE AS EMPLOYER TO ITS EMPLOYEES.  THIS SORT OF ASTIGMATISM, IT HELD,
WOULD IGNORE OVERRIDING CONSTITUTIONAL VALUES, AND "SHOULD NOT BE
FOLLOWED," AND IT PROCEEDED TO CONFRONT THE SUBSTANCE OF THE LAW AND
ITS EFFECT. 

/6/  242 ARK. 922, 416 S.W.2D 322 (1967). 

/7/  "PER CURIAM.  UPON THE PRINCIPAL ISSUE, THAT OF
CONSTITUTIONALITY, THE COURT HOLDS THAT INITIATED MEASURE NO. 1 OF
1928, ARK. STAT. ANN. SEC. 80-1627 AND SEC. 80-1628 (REPL.  1960), IS A
VALID EXERCISE OF THE STATE'S POWER TO SPECIFY THE CURRICULUM IN ITS
PUBLIC SCHOOLS.  THE COURT EXPRESSES NO OPINION ON THE QUESTION WHETHER
THE ACT PROHIBITS ANY EXPLANATION OF THE THEORY OF EVOLUTION OR MERELY
PROHIBITS TEACHING THAT THE THEORY IS TRUE; THE ANSWER NOT BEING
NECESSARY TO A DECISION IN THE CASE, AND THE ISSUE NOT HAVING BEEN
RAISED. 

"THE DECREE IS REVERSED AND THE CAUSE DISMISSED. 

"WARD, J., CONCURS.  BROWN, J., DISSENTS. 

"PAUL WARD, JUSTICE, CONCURRING.  I AGREE WITH THE FIRST SENTENCE IN
THE MAJORITY OPINION. 

"TO MY MIND, THE REST OF THE OPINION BECLOUDS THE CLEAR ANNOUNCEMENT
MADE IN THE FIRST SENTENCE." 

/8/  MISS.  CODE ANN. SECS. 6798, 6799 (1942).  ARK. STAT. ANN.
SECS. 80-1627, 80-1628 (1960 REPL.  VOL.).  THE TENNESSEE LAW WAS
REPEALED IN 1967.  OKLAHOMA ENACTED AN ANTI-EVOLUTION LAW, BUT IT WAS
REPEALED IN 1926.  THE FLORIDA AND TEXAS LEGISLATURES, IN THE PERIOD
BETWEEN 1921 AND 1929, ADOPTED RESOLUTIONS AGAINST TEACHING THE
DOCTRINE OF EVOLUTION.  IN ALL, DURING THAT PERIOD, BILLS TO THIS
EFFECT WERE INTRODUCED IN 20 STATES.  AMERICAN CIVIL LIBERTIES UNION
(ACLU), THE GAG ON TEACHING 8 (2D ED., 1937). 

/9/  CLARENCE DARROW, WHO WAS COUNSEL FOR THE DEFENSE IN THE SCOPES
TRIAL, IN HIS BIOGRAPHY PUBLISHED IN 1932, SOMEWHAT SARDONICALLY
POINTED OUT THAT STATES WITH ANTI-EVOLUTION LAWS DID NOT INSIST UPON
THE FUNDAMENTALIST THEORY IN ALL RESPECTS.  HE SAID:  "I UNDERSTAND
THAT THE STATES OF TENNESSEE AND MISSISSIPPI BOTH CONTINUE TO TEACH
THAT THE EARTH IS ROUND AND THAT THE REVOLUATION ON ITS AXIS BRINGS THE
DAY AND NIGHT, IN SPITE OF ALL OPPOSITION."  THE STORY OF MY LIFE 247
(1932). 

/10/  R. HOFSTADTER & W. METZGER, IN THE DEVELOPMENT OF ACADEMIC
FREEDOM IN THE UNITED STATES 324 (1955), REFER TO SOME OF DARWIN'S
OPPONENTS AS "EXHIBITING A KIND OF PHYLOGENETIC SNOBBERY (WHICH LED
THEM) TO THINK THAT DARWIN HAD LIBELED THE (HUMAN) RACE BY DISCOVERING
SIMIAN RATHER THAN SERAPHIC ANCESTORS." 

/11/  IN SCOPES V. STATE, 154 TENN. 105, 126, 289 S.W. 363, 369
(1927), JUDGE CHAMBLISS, CONCURRING, REFERRED TO THE DEFENSE CONTENTION
THAT TENNESSEE'S ANTI-EVOLUTION LAW GIVES A "PREFERENCE" TO "RELIGIOUS
ESTABLISHMENTS WHICH HAVE AS ONE OF THEIR TENETS OR DOGMAS THE
INSTANTANEOUS CREATION OF MAN." 

/12/  EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 18 (1947); MCCOLLUM
V. BOARD OF EDUCATION, 333 U.S. 203 (1948); ZORACH V. CLAUSON, 343 U.S.
306, 313-314 (1952); FOWLER V. RHODE ISLAND, 345 U.S. 67 (1953);
TORCASO V. WATKINS, 367 U.S. 488, 495 (1961). 

/13/  SEE THE DISCUSSION IN DEVELOPMENTS IN THE LAW-- ACADEMIC
FREEDOM, 81 HARV.L.REV.  1045, 1051-1055 (1968). 

/14/  THE CASE INVOLVED A CONVICTION FOR TEACHING "THE SUBJECT OF
READING IN THE GERMAN LANGUAGE" TO A CHILD OF 10 YEARS. 

/15/  FORMER DEAN LEFLAR OF THE UNIVERSITY OF ARKANSAS SCHOOL OF LAW
HAS STATED THAT "THE SAME IDEOLOGICAL CONSIDERATIONS UNDERLIE THE ANTI
EVOLUTION ENACTMENT" AS UNDERLIE THE TYPICAL BLASPHEMY STATUE.  HE SAYS
THAT THE PURPOSE OF THESE STATUTES IS AN "IDEOLOGICAL" ONE WHICH
"INVOLVES AN EFFORT TO PREVENT (BY CENSORSHIP) OR PUNISH THE
PRESENTATION OF INTELLECTUALLY SIGNIFICANT MATTER WHICH CONTRADICTS
ACCEPTED SOCIAL, MORAL OR RELIGIOUS IDEAS."  LEFLAR, LEGAL LIABILITY
FOR THE EXERCISE OF FREE SPEECH, 10 ARK.L.REV.  155, 158 (1956).  SEE
ALSO R. HOFSTADTER & W. METZGER, THE DEVELOPMENT OF ACADEMIC FREEDOM IN
THE UNITED STATES 320-366 (1955) (PASSIM); H. BEALE, A HISTORY OF
FREEDOM OF TEACHING IN AMERICAN SCHOOLS 202-207 (1941; EMERSON & HABER,
THE SCOPES CASE IN MODERN DRESS, 27 U.CHI.L.REV.  522 (1960); WALLER,
THE CONSTITUTIONALITY OF THE TENNESSEE ANTI-EVOLUTION ACT, 35 YALEL.J.
191 (1925) (PASSIM); ACLU, THE GAG ON TEACHING 7 (2D ED., 1937); J.
SCOPES & J. PRESLEY, CENTER OF THE STORM 45-53 (1967). 

/16/ THE FOLLOWING ADVERTISEMENT IS TYPICAL OF THE PUBLIC APPEAL
WHICH WAS USED IN THE CAMPAIGN TO SECURE ADOPTION OF THE STATUTE:

        "THE BIBLE OR ATHEISM, WHICH? 

"ALL ATHEISTS FAVOR EVOLUTION.  IF YOU AGREE WITH ATHEISM VOTE
AGAINST ACT NO. 1.  IF YOU AGREE WITH THE BIBLE VOTE FOR ACT NO. 1.  .
. . SHALL CONSCIENTIOUS CHURCH MEMBERS BE FORCED TO PAY TAXES TO
SUPPORT TEACHERS TO TEACH EVOLUTION WHICH WILL UNDERMINE THE FAITH OF
THEIR CHILDREN?  THE GAZETTE SAID RUSSIAN BOLSHEVISTS LAUGHED AT
TENNESSEE.  TRUE, AND THAT SORT WILL LAUGH AT ARKANSAS.  WHO CARES? 
VOTE FOR ACT NO. 1."  THE ARKANSAS GAZETTE, LITTLE ROCK, NOV. 4, 1928,
P. 12, COLS.  4-5. 

LETTERS FROM THE PUBLIC EXPRESSED THE FEAR THAT TEACHING OF
EVOLUTION WOULD BE "SUBVERSIVE OF CHRISTIANITY," ID., OCT. 24, 1928, P.
7, COL. 2; SEE ALSO ID., NOV. 4, 1928, P. 19, COL. 4; AND THAT IT WOULD
CAUSE SCHOOL CHILDREN "TO DISRESPECT THE BIBLE," ID., OCT. 27, 1928, P.
15, COL. 5.  ONE LETTER READ:  "THE COSMOGONY TAUGHT BY (EVOLUTION)
RUNS CONTRARY TO THAT OF MOSES AND JESUS, AND AS SUCH IS NOTHING, IF
ANYTHING AT ALL, BUT ATHEISM.  . . . NOW LET THE MOTHERS AND FATHERS OF
OUR STATE THAT ARE TRYING TO RAISE THEIR CHILDREN IN THE CHRISTIAN
FAITH ARISE IN THEIR MIGHT AND VOTE FOR THIS ANTI-EVOLUTION BILL THAT
WILL TAKE IT OUT OF OUR TAX SUPPORTED SCHOOLS.  WHEN THEY HAVE SAVED
THE CHILDREN, THEY HAVE SAVED THE STATE."  ID., AT COLS.  4-5. 

/17/  ARKANSAS' LAW WAS ADOPTED BY POPULAR INITIATIVE IN 1928, THREE
YEARS AFTER TENNESSEE'S LAW WAS ENACTED AND ONE YEAR AFTER THE
TENNESSEE SUPREME COURT'S DECISION IN THE SCOPES CASE, SUPRA. 

/18/  IN ITS BRIEF, THE STATE SAYS THAT THE ARKANSAS STATUTE WAS
PASSED WITH THE HOLDING OF THE SCOPES CASE IN MIND.  BRIEF FOR APPELLEE
1. 

MR. JUSTICE BLACK, CONCURRING. 

I AM BY NO MEANS SURE THAT THIS CASE PRESENTS A GENUINELY
JUSTICIABLE CASE OR CONTROVERSY.  ALTHOUGH ARKANSAS INITIATED ACT NO.
1, THE STATUTE ALLEGED TO BE UNCONSTITUTIONAL, WAS PASSED BY THE VOTERS
OF ARKANSAS IN 1928, WE ARE INFORMED THAT THERE HAS NEVER BEEN EVEN A
SINGLE ATTEMPT BY THE STATE TO ENFORCE IT.  AND THE PALLID,
UNENTHUSIASTIC, EVEN APPLOGETIC DEFENSE OF THE ACT PRESENTED BY THE
STATE IN THIS COURT INDICATES THAT THE STATE WOULD MAKE NO ATTEMPT TO
ENFORCE THE LAW SHOULD IT REMAIN ON THE BOOKS FOR THE NEXT CENTURY. 
NOW, NEARLY 40 YEARS AFTER THE LAW HAS SLUMBERED ON THE BOOKS AS THOUGH
DEAD, A TEACHER ALLEGING FEAR THAT THE STATE MIGHT AROUSE FROM ITS
LETHARGY AND TRY TO PUNISH HER HAS ASKED FOR A DECLARATORY JUDGMENT
HOLDING THE LAW UNCONSTITUTIONAL.  SHE WAS SUBSEQUENTLY JOINED BY A
PARENT WHO ALLEGED HIS INTEREST IN SEEING THAT HIS TWO THEN SCHOOL-AGE
SONS "BE INFORMED OF ALL SCIENTIFIC THEORIES AND HYPOTHESES.  . . . "
BUT WHETHER THIS ARKANSAS TEACHER IS STILL A TEACHER, FEARFUL OF
PUNISHMENT UNDER THE ACT, WE DO NOT KNOW.  IT MAY BE, AS HAS BEEN
PUBLISHED IN THE DAILY PRESS, THAT SHE HAS LONG SINCE GIVEN UP HER JOB
AS A TEACHER AND MOVED TO A DISTANT CITY, THEREBY ESCAPING THE DANGERS
SHE HAD IMAGAINED MIGHT BEFALL HER UNDER THIS LIEFLESS ARKANSAS ACT. 
AND THERE IS NOT ONE IOTA OF CONCRETE EVIDENCE TO SHOW THAT THE PARENT
INTERVENOR'S SONS HAVE NOT BEEN OR WILL NOT BE TAUGHT ABOUT EVOLUTION. 
THERE IS NO EVIDENCE THAT THIS CHAPTER IS NOT BEING FREELY TAUGHT IN
THE SCHOOLS THAT USE THE TEXTBOOK AND NO EVIDENCE THAT THE INTERVENOR'S
SONS, WHO WERE 15 AND 17 YEARS OLD WHEN THIS SUIT WAS BROUGHT THREE
YEARS AGO, ARE STILL IN HIGH SCHOOL OR YET TO TAKE BIOLOGY. 
UNFORTUNATELY, HOWEVER, THE STATE'S LANGUID INTEREST IN THE CASE HAS
NOT PROMPTED IT TO KEEP THIS COURT INFORMED CONCERNING FACTS THAT MIGHT
EASILY JUSTIFY DISMISSAL OF THIS ALLEGED LAWSUIT AS MOOT OR AS LACKING
THE QUALITIES OF A GENUINE CASE OR CONTROVERSY. 

NOTWITHSTANDING MY OWN DOUBTS AS TO WHETHER THE CASE PRESENTS A
JUSTICIABLE CONTROVERSY, THE COURT BRUSHES ASIDE THESE DOUBTS AND LEAPS
HEADLONG INTO THE MIDDLE OF THE VERY BROAD PROBLEMS INVOLVED IN FEDERAL
INTRUSION INTO STATE POWERS TO DECIDE WHAT SUBJECTS AND SCHOOLBOOKS IT
MAY WISH TO USE IN TEACHING STATE PUPILS.  WHILE I HESITATE TO ENTER
INTO THE CONSIDERATION AND DECISION OF SUCH SENSITIVE STATE-FEDERAL
RELATIONSHIPS, I RELUNCTANTLY ACQUIESCE.  BUT, AGREEING TO CONSIDER
THIS AS A GENUINE CASE OR CONTROVERSY, I CANNOT AGREE TO THRUST THE
FEDERAL GOVERNMENT'S LONG ARM THE LEAST BIT FURTHER INTO STATE SCHOOL
CURRICULUMS THAN DECISION OF THIS PARTICULAR CASE REQUIRES.  AND THE
COURT, IN ORDER TO INVALIDATE THE ARKANSAS LAW AS A VIOLATION OF THE
FIRST AMENDMENT, HAS BEEN COMPELLED TO GIVE THE STATE'S LAW A BROADER
MEANING THAN THE STATE SUPREME COURT WAS WILLING TO GIVE IT.  THE
ARKANSAS SUPREME COURT'S OPINION, IN ITS ENTIRETY, STATED THAT: 

     "UPON THE PRINCIPAL ISSUE, THAT OF CONSTITUTIONALITY, THE
COURT

  HOLDS THAT INITIATED MEASURE NO. 1 OF 1928, ARK. STAT. ANN. SEC.

  80-1627 AND SEC. 80-1628 (REPL.  1960), IS A VALID EXERCISE OF
THE

  STATE'S POWER TO SPECIFY THE CURRICULUM IN ITS PUBLIC SCHOOLS. 

  THE COURT EXPRESSES NO OPINION ON THE QUESTION WHETHER THE ACT

  PROHIBITS ANY EXPLANATION OF THE THEORY OF EVOLUTION OR MERELY

  PROHIBITS TEACHING THAT THE THEORY IS TRUE; THE ANSWER NOT BEING

  NECESSARY TO A DECISION IN THE CASE, AND THE ISSUE NOT HAVING

  BEEN RAISED." 

IT IS PLAIN THAT A STATE LAW PROHIBITING ALL TEACHING OF HUMAN
DEVELOPMENT OR BIOLOGY IS CONSTITUTIONALLY QUITE DIFFERENT FROM A LAW
THAT COMPELS A TEACHER TO TEACH AS TRUE ONLY ONE THEORY OF A GIVEN
DOCTRINE.  IT WOULD BE DIFFICULT TO MAKE A FIRST AMENDMENT CASE OUT OF
A STATE LAW ELIMINATING THE SUBJECT OF HIGHER MATHEMATICS, OR
ASTRONOMY, OR BIOLOGY FROM ITS CURRICULUM.  AND, FOR ALL THE SUPREME
COURT OF ARKANSAS HAS SAID, THIS PARTICULAR ACT MAY PROHIBIT THAT AND
NOTHING ELSE.  THIS COURT, HOWEVER, TREATS THE ARKANSAS ACT AS THOUGH
IT MADE IT A MISDEMEANOR TO TEACH OR TO USE A BOOK THAT TEACHES THAT
EVOLUTION IS TRUE.  BUT IT IS NOT FOR THIS COURT TO ARROGATE TO ITSELF
THE POWER TO DETERMINE THE SCOPE OF ARKANSAS STATUTES.  SINCE THE
HIGHEST COURT OF ARKANSAS HAS DELIBERATELY REFUSED TO GIVE ITS STATUTE
THAT MEANING, WE SHOULD NOT PRESUME TO DO SO.     IT SEEMS TO ME THAT
IN THIS SITUATION THE STATUTE IS TOO BAGUE FOR US TO STRIKE IT DOWN ON
ANY GROUND BUT THAT:  VAGUENESS.  UNDER THIS STATUTE AS CONSTRUED BY
THE ARKANSAS SUPREME COURT, A TEACH CANNOT KNOW WHETHER HE IS FORBIDDEN
TO MENTION DARWIN'S THEORY AT ALL OR ONLY FREE TO DISCUSS IT AS LONG AS
HE REFRAINS FROM CONTENDING THAT IT IS TRUE.  IT IS AN ESTABLISHED RULE
THAT A STATUTE WHICH LEAVES AN ORDINARY MAN SO DOUBTFUL ABOUT ITS
MEANING THAT HE CANNOT KNOW WHEN HE HAS VIOLATED IT DENIES HIM THE
FIRST ESSENTIAL OF DUE PROCESS.  SEE, E.G., CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U.S. 385, 391 (1926).  HOLDING THE STATUTE TOO
VAGUE TO ENFORCE WOULD NOT ONLY FOLLOW LONG-STANDING CONSTITUTIONAL
PRECEDENTS BUT IT WOULD AVOID HAVING THIS COURT TAKE UNTO ITSELF THE
DUTY OF A STATE'S HIGHEST COURT TO INTERPRET AND MARK THE BOUNDARIES OF
THE STATE'S LAWS.  AND, MORE IMPORTANT, IT WOULD NOT PLACE THIS COURT
IN THE UNENVIABLE POSITION OF VIOLATING THE PRINCIPLE OF LEAVING THE
STATES ABSOLUTELY FREE TO CHOOSE THEIR OWN CURRICULUMS FOR THEIR OWN
SCHOOLS SO LONG AS THEIR ACTION DOES NOT PALPABLY CONFLICT WITH A CLEAR
CONSTITUTIONAL COMMAND. 

THE COURT, NOT CONTENT TO STRIKE DOWN THIS ARKANSAS ACT ON THE
UNCHALLENGEABLE GROUND OF ITS PLAIN VAGUENESS, CHOOSES RATHER TO
INVALIDATE IT AS A VIOLATION OF THE ESTABLISHMENT OF RELIGION CLAUSE OF
THE FIRST AMENDMENT.  I WOULD NOT DECIDE THIS CASE ON SUCH A SWEEPING
GROUND FOR THE FOLLOWING REASONS, AMONG OTHERS. 

1.  IN THE FIRST PLACE I FIND IT DIFFICULT TO AGREE WITH THE COURT'S
STATEMENT THAT "THERE CAN BE NO DOUBT THAT ARKANSAS HAS SOUGHT TO
PREVENT ITS TEACHERS FROM DISCUSSING THE THEORY OF EVOLUTION BECAUSE IT
IS CONTRARY TO THE BELIEF OF SOME THAT THE BOOK OF GENESIS MUST BE THE
EXCLUSIVE SOURCE OF DOCTRINE AS TO THE ORIGIN OF MAN."  IT MAY BE
INSTEAD THAT THE PEOPLE'S MOTIVE WAS MERELY THAT IT WOULD BE BEST TO
REMOVE THIS CONTROVERSIAL SUBJECT FROM ITS SCHOOLS; THERE IS NO REASON
I CAN IMAGINE WHY A STATE IS WITHOUT POWER TO WITHDRAW FROM ITS
CURRICULUM ANY SUBJECT DEEMED TOO EMOTIONAL AND CONTROVERSIAL FOR ITS
PUBLIC SCHOOLS.  AND THIS COURT HAS CONSISTENTLY HELD THAT IT IS NOT
FOR US TO INVALIDATE A STATUTE BECAUSE OF OUR VIEWS THAT THE "MOTIVES"
BEHIND ITS PASSAGE WERE IMPROPER; IT IS SIMPLY TOO DIFFICULT TO
DETERMINE WHAT THOSE MOTIVES WERE.  SEE, E.G., UNITED STATES V.
O'BRIEN, 391 U.S. 367, 382-383 (1968). 

2.  A SECOND QUESTION THAT ARISES FOR ME IS WHETHER THIS COURT'S
DECISION FORBIDDING A STATE TO EXCLUDE THE SUBJECT OF EVOLUTION FROM
ITS SCHOOLS INFRINGES THE RELIGIOUS FREEDOM OF THOSE WHO CONSIDER
EVOLUTION AN ANTI-RELIGIOUS DOCTRINE.  IF THE THEORY IS CONSIDERED ANTI
RELIGIOUS, AS THE COURT INDICATES, HOW CAN THE STATE BE BOUND BY THE
FEDERAL CONSTITUTION TO PERMIT ITS TEACHERS TO ADVOCATE SUCH AN "ANTI
RELIGIOUS" DOCTRINE TO SCHOOLCHILDREN?  THE VERY CASES CITED BY THE
COURT AS SUPPORTING ITS CONCLUSION HOLD THAT THE STATE MUST BE NEUTRAL,
NOT FAVORING ONE RELIGIOUS OR ANTI-RELIGIOUS VIEW OVER ANOTHER.  THE
DARWINIAN THEORY IS SAID TO CHALLENGE THE BIBLE'S STORY OF CREATION; SO
TOO HAVE SOME OF THOSE WHO BELIEVE IN THE BIBLE, ALONG WITH MANY
OTHERS, CHALLENGED THE DARWINIAN THEORY.  SINCE THERE IS NO INDICATION
THAT THE LITERAL BIBLICAL DOCTRINE OF THE ORIGIN OF MAN IS INCLUDED IN
THE CURRICULUM OF ARKANSAS SCHOOLS, DOES NOT THE REMOVAL OF THE SUBJECT
OF EVOLUTION LEAVE THE STATE IN A NEUTRAL POSITION TOWARD THESE
SUPPOSEDLY COMPETING RELIGIOUS AND ANTI-RELIGIOUS DOCTRINES?  UNLESS
THIS COURT IS PREPARED SIMPLY TO WRITE OFF AS PURE NONSENSE THE VIEWS
OF THOSE WHO CONSIDER EVOLUTION AN ANTI-RELIGIOUS DOCTRINE, THEN THIS
ISSUE PRESENTS PROBLEMS UNDER THE ESTABLISHMENT CLAUSE FAR MORE
TROUBLESOME THAN ARE DISCUSSED IN THE COURT'S OPINION. 

3.  I AM ALSO NOT READY TO HOLD THAT A PERSON HIRED TO TEACH SCHOOL
CHILDREN TAKES WITH HIM INTO THE CLASSROOM A CONSTITUTIONAL RIGHT TO
TEACH SOCIOLOGICAL, ECONOMIC, POLITICAL, OR RELIGIOUS SUBJECTS THAT THE
SCHOOL'S MANAGERS DO NOT WANT DISCUSSED.  THIS COURT HAS SAID THAT THE
RIGHTS OF FREE SPEECH "WHILE FUNDAMENTAL IN OUR DEMOCRATIC SOCIETY,
STILL DO NOT MEAN THAT EVERYONE WITH OPINIONS OR BELIEFS TO EXPRESS MAY
ADDRESS A GROUP AT ANY PUBLIC PLACE AND AT ANY TIME."  COX V.
LOUISIANA, 379 U.S. 536, 554; COX V. LOUISIANA, 379 U.S. 559, 574.  I
QUESTION WHETHER IT IS ABSOLUTELY CERTAIN, AS THE COURT'S OPINION
INDICATES, THAT "ACADEMIC FREEDOM"  PERMITS A TEACHER TO BREACH HIS
CONTRACTUAL AGREEMENT TO TEACH ONLY THE SUBJECTS DESIGNATED BY THE
SCHOOL AUTHORITIES WHO HIRED HIM. 

CERTAINLY THE DARWINIAN THEORY, PRECISELY LIKE THE GENESIS STORY OF
THE CREATION OF MAN, IS NOT ABOVE CHALLENGE.  IN FACT THE DARWINIAN
THEORY HAS NOT MERELY BEEN CRITICIZED BY RELIGIONISTS BUT BY
SCIENTISTS, AND PERHAPS NO SCIENTIST WOULD BE WILLING TO TAKE AN OATH
AND SWEAR THAT EVERYTHING ANNOUNCED IN THE DARWINIAN THEORY IS
UNQUESTIONABLY TRUE.  THE COURT, IT SEEMS TO ME, MAKES A SERIOUS
MISTAKE IN BYPASSING THE PLAIN, UNCONSTITUTIONAL VAGUENESS OF THIS
STATUTE IN ORDER TO REACH OUT AND DECIDE THIS TROUBLESOME, TO ME, FIRST
AMENDMENT QUESTION.  HOWEVER WISE THIS COURT MAY BE OR MAY BECOME
HEREAFTER, IT IS DOUBTFUL THAT, SITTING IN WASHINGTON, IT CAN
SUCCESSFULLY SUPERVISE AND CENSOR THE CURRICULUM OF EVERY PUBLIC SCHOOL
IN EVERY HAMLET AND CITY IN THE UNITED STATES.  I DOUBT THAT OUR WISDOM
IS SO NEARLY INFALLIBLE. 

I WOULD EITHER STRIKE DOWN THE ARKANSAS ACT AS TOO VAGUE TO ENFORCE,
OR REMAND TO THE STATE SUPREME COURT FOR CLARIFICATION OF ITS HOLDING
AND OPINION. 

MR. JUSTICE HARLAN, CONCURRING. 

I THINK IT DEPLORABLE THAT THIS CASE SHOULD HAVE COME TO US WITH
SUCH AN OPAQUE OPINION BY THE STATE'S HIGHEST COURT.  WITH ALL RESPECT,
THAT COURT'S HANDLING OF THE CASE SAVORS OF A STUDIED EFFORT TO AVOID
COMING TO GRIPS WITH THIS ANACHRONISTIC STATUTE AND TO "PASS THE BUCK"
TO THIS COURT.  THIS SORT OF TEMPORIZING DOES NOT MAKE FOR HEALTY
OPERATIONS BETWEEN THE STATE AND FEDERAL JUDICIARIES.  DESPITE THESE
OBSERVATIONS, I AM IN AGREEMENT WITH THIS COURT'S OPINION THAT, THE
CONSTITUTIONAL CLAIMS HAVING BEEN PROPERLY RAISED AND NECESSARILY
DECIDED BELOW, RESOLUTION OF THE MATTER BY US CANNOT PROPERLY BE
AVOIDED.  /1/  SEE, E.G., CHICAGO LIFE INSURANCE CO. V. NEEDLES, 113
U.S. 574, 579 (1885). 

I CONCUR IN SO MUCH OF THE COURT'S OPINION AS HOLDS THAT THE
ARKANSAS STATUTE CONSTITUTES AN "ESTABLISHMENT OF RELIGION" FORBIDDEN
TO THE STATES BY THE FOURTEENTH AMENDMENT.  I DO NOT UNDERSTAND,
HOWEVER, WHY THE COURT FINDS IT NECESSARY TO EXPLORE AT LENGTH
APPELLANTS' CONTENTIONS THAT THE STATUTE IS UNCONSTITUTIONALLY VAGUE
AND THAT IT INTERFERES WITH FREE SPEECH, ONLY TO CONCLUDE THAT THESE
ISSUES NEED NOT BE DECIDED IN THIS CASE.  IN THE PROCESS OF NOT
DECIDING THEM, THE COURT OBSCURES ITS OTHERWISE STRAIGHTFORWARD
HOLDING, AND OPENS ITS OPINION TO POSSIBLE IMPLICATIONS FROM WHICH I AM
CONSTRAINED TO DISASSOCIATE MYSELF. 

/1/  SHORT OF READING THE ARKANSAS SUPREME COURT'S OPINION TO HAVE
PROCEEDED ON THE PREMISE THAT IT NEED NOT CONSIDER APPELLANTS'
"ESTABLISHMENT" CONTENTION, CLEARLY RAISED IN THE STATE COURTS AND
HERE, IN VIEW OF ITS HOLDING THAT THE STATE POSSESSES PLENARY POWER TO
FIX THE CURRICULUM IN ITS PUBLIC SCHOOLS, I CAN PERCEIVE NO TENABLE
BASIS FOR REMANDING THE CASE TO THE STATE COURT FOR AN EXPLICATION OF
THE PURPOSE AND MEANING OF THE STATUTE IN QUESTION.  I AM UNWILLING TO
ASCRIBE TO THE ARKANSAS SUPREME COURT ANY SUCH QUIXOTIC APPROACH TO
CONSTITUTIONAL ADJUDICATION.  I TAKE THE FIRST SENTENCE OF ITS OPINION
(ANTE, AT 101, N. 7) TO ENCOMPASS AN OVERRULING OF APPELLANTS'
"ESTABLISHMENT" POINT, AND THE SECOND SENTENCE TO REFER ONLY TO THEIR
"VAGUENESS" CLAIM. 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

THE STATES ARE MOST ASSUREDLY FREE "TO CHOOSE THEIR OWN CURRICULUMS
FOR THEIR OWN SCHOOLS."  A STATE IS ENTIRELY FREE, FOR EXAMPLE, TO
DECIDE THAT THE ONLY FOREIGN LANGUAGE TO BE TAUGHT IN ITS PUBLIC SCHOOL
SYSTEM SHALL BE SPANISH.  BUT WOULD A STATE BE CONSTITUTIONALLY FREE TO
PUNISH A TEACHER FOR LETTING HIS STUDENTS KNOW THAT OTHER LANGUAGES ARE
ALSO SPOKEN IN THE WORLD?  I THINK NOT. 

IT IS ONE THING FOR A STATE TO DETERMINE THAT "THE SUBJECT OF HIGHER
MATHEMATICS, OR ASTRONOMY, OR BIOLOGY" SHALL OR SHALL NOT BE INCLUDED
IN ITS PUBLIC SCHOOL CURRICULUM.  IT IS QUITE ANOTHER THING FOR A STATE
TO MAKE IT A CRIMINAL OFFENSE FOR A PUBLIC SCHOOL TEACHER SO MUCH AS TO
MENTION THE VERY EXISTENCE OF AN ENTIRE SYSTEM OF RESPECTED HUMAN
THOUGHT.  THAT KIND OF CRIMINAL LAW, I THINK, WOULD CLEARLY IMPINGE
UPON THE GUARANTEES OF FREE COMMUNICATION CONTAINED IN THE FIRST
AMENDMENT, AND MADE APPLICABLE TO THE STATES BY THE FOURTEENTH. 

THE ARKANSAS SUPREME COURT HAS SAID THAT THE STATUTE BEFORE US MAY
OR MAY NOT BE JUST SUCH A LAW.  THE RESULT, AS MR. JUSTICE BLACK POINTS
OUT, IS THAT "A TEACHER CANNOT KNOW WHETHER HE IS FORBIDDEN TO MENTION
DARWIN'S THEORY AT ALL."  SINCE I BELIEVE THAT NO STATE COULD
CONSTITUTIONALLY FORBID A TEACHER "TO MENTION DARWIN'S THEORY AT ALL,"
AND SINCE ARKANSAS MAY, OR MAY NOT, HAVE DONE JUST THAT, I CONCLUDE
THAT THE STATUTE BEFORE US IS SO VAGUE AS TO BE INVALID UNDER THE
FOURTEENTH AMENDMENT.  SEE CRAMP V. BOARD OF PUB. INSTRUCTION, 368 U.S.
278. 

EUGENE R. WARREN ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WAS BRUCE T. BULLION. 

DON LANGSTON, ASSISTANT ATTORNEY GENERAL OF ARKANSAS, ARGUED THE CAUSE
FOR APPELLEE.  WITH HIM ON THE BRIEF WAS JOE PURCELL, ATTORNEY
GENERAL. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY LEO PFEFFER,
MELVIN L. WULF, AND JOSEPH B. ROBISON FOR THE AMERICAN CIVIL LIBERTIES
UNION ET AL., AND BY PHILIP J. HIRSCHKOP FOR THE NATIONAL EDUCATION
ASSOCIATION OF THE UNITED STATES ET AL.
..END :


















WHYY V. GLASSBORO, 393 U.S. 117 


       WHYY, INC. V. BOROUGH OF GLASSBORO ET AL.

 APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

NO. 10.  ARGUED OCTOBER 17, 1968.-- DECIDED NOVEMBER 12,

       1968. 


APPELLATN, A PENNSYLVANIA NONPROFIT CORPORATION, OPERATES A
NONCOMMERCIAL TELEVISION STATION.  IT HAS BROADCASTING FACILITIES IN
NEW JERSEY AND HAS REGISTERED AND QUALIFIED TO TRANSACT BUSINESS
THERE.  APPELLANT'S REQUEST FOR EXEMPTION, AS A NONPROFIT CORPORATION,
FROM NEW JERSEY REAL AND PERSONAL PROPERTY TAXES WAS DENIED BY LOCAL
TAX BOARDS.  THE SUPERIOR COURT HELD THAT WHILE APPELLANT QUALIFIED FOR
THE EXEMPTION IN ALL OTHER RESPECTS, THE STATUTE EXEMPTED ONLY NEW
JERSEY NONPROFIT CORPORATIONS.  THE STATE SUPREME COURT REJECTED
APPELLANT'S ARGUMENT THAT IT WAS DENIED EQUAL PROTECTION BY BEING
DISCRIMINATED AGAINST SOLELY BECAUSE OF ITS FOREIGN INCORPORATION. 
HELD:  WHEN A FOREIGN CORPORATION IS PERMITTED TO ENTER A STATE IT IS
ENTITLED TO EQUAL PROTECTION WITH DOMESTIC CORPORATIONS, AND NEW JERSEY
CANNOT DENY APPELLANT AN OPPORTUNITY EQUIVALENT TO THAT OF A DOMESTIC
CORPORATION TO SHOW THAT IT MEETS THE REQUIREMENTS FOR A NONPROFIT
CORPORATION UNDER LOCAL LAW. 

50 N.J. 6, 231 A.2D 608, REVERSED AND REMANDED. 

PER CURIAM. 

THE APPELLANT IS A NONPROFIT CORPORATION ORGANIZED UNDER THE LAWS OF
PENNSYLVANIA.  UNDER A LICENSE ISSUED BY THE FEDERAL COMMUNICATIONS
COMMISSION, IT OPERATES A NONCOMMERCIAL TELEVISION STATION WHICH
BROADCASTS CULTURAL, RECREATIONAL, AND EDUCATIONAL PROGRAMS.  THE
BROADCASTING FACILITIES FOR ONE OF THE TELEVISION CHANNELS ALLOCATED TO
THE APPELLANT ARE IN NEW JERSEY; ON ITS 50-ACRE PLOT IN THE BOROUGH OF
GLASSBORO IN THAT STATE APPELLANT HAS ERECTED A TRANSMITTAL STATION AND
A TOWER.  SIGNALS ON THIS CHANNEL REACH APPROXIMATELY 8,000,000 PEOPLE
IN THE DELAWARE VALLEY AREA, OF WHOM 29.5% ARE ESTIMATED TO LIVE IN NEW
JERSEY.  SOME OF THE PROGRAMS ARE DESIGNED TO APPEAL ESPECIALLY TO THE
RESIDENTS OF NEW JERSEY.  IN ACCORDANCE WITH NEW JERSEY LAW, THE
APPELLANT HAS REGISTERED AND QUALIFIED TO TRANSACT BUSINESS IN THE
STATE.  /1/ 

IN NOVEMBER OF 1963 THE APPELLANT WROTE TO THE GLASSBORO COUNCIL
REQUESTING EXEMPTION, AS A NONPROFIT ORGANIZATION, FROM STATE REAL AND
PERSONAL PROPERTY TAXES ON ITS LAND AND FACILITIES FOR 1964.  THE
REQUEST WAS DENIED, AS WAS A SIMILAR PETITION TO THE GLOUCESTER COUNTY
TAX BOARD.  THE DIVISION OF TAX APPEALS UPHELD THE COUNTY BOARD AND THE
APPELLANT TOOK A FURTHER APPEAL TO THE SUPERIOR COURT.  THAT COURT HELD
THAT WHILE THE APPELLANT QUALIFIED FOR THE EXEMPTION IN ALL OTHER
RESPECTS, THE STATUTE EXEMPTED ONLY THOSE NONPROFIT CORPORATIONS WHICH
WERE INCORPORATED IN NEW JERSEY.  /2/  91 N.J. SUPER.  269, 219 A.2D
893.  ON APPEAL TO THE SUPREME COURT OF NEW JERSEY, THE APPELLANT
ARGUED FOR THE FIRST TIME THAT THE STATUTE DENIED IT EQUAL PROTECTION
OF THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION BY DISCRIMINATING AGAINST IT SOLELY ON THE BASIS OF ITS
FOREIGN INCORPORATION.  THE SUPREME COURT NOTED THAT IT HAD DISCRETION
NOT TO CONSIDER A QUESTION NOT RAISED IN THE LOWER COURT, BUT
NEVERTHELESS PROCEEDED TO DECIDE THE CONSTITUTIONAL QUESTION OF ITS
WIDESPREAD IMPORTANCE.  IT CONCLUDED THAT THE CLASSIFICATION WAS NOT
WHOLLY IRRATIONAL AND SUSTAINED THE DENIAL OF EXEMPTION.  /3/  50 N.J.
6, 231 A.2D 608.  WE NOTED PROBABLY JURISDICTION TO CONSIDER THE
CONSTITUTIONAL QUESTION THUS RAISED.  390 U.S. 979.  CF. RALEY V. OHIO,
360 U.S. 423, 436. 

THIS COURT HAS CONSISTENTLY HELD THAT WHILE A STATE MAY IMPOSE
CONDITIONS ON THE ENTRY OF FOREIGN CORPORATIONS TO DO BUSINESS IN THE
STATE, ONCE IT HAS PERMITTED THEM TO ENTER, "THE ADOPTED CORPORATIONS
ARE ENTITLED TO EQUAL PROTECTION WITH THE STATE'S OWN CORPORATE
PROGENY, AT LEAST TO THE EXTENT THAT THEIR PROPERTY IS ENTITLED TO AN
EQUALLY FAVORABLE AD VALOREM TAX BASIS."  WHEELING STEEL CORP. V.
GLANDER, 337 U.S. 562, 572-572.  SEE RESERVE LIFE INS. CO. V. BOWERS,
380 U.S. 258; HANOVER FIRE INS. CO. V. HARDING, 272 U.S. 494; SOUTHERN
R. CO. V. GREENE, 216 U.S. 400.  YET NEW JERSEY HAS DENIED THE
APPELLANT A TAX EXEMPTION WHICH IT ACCORDS OTHER NONPROFIT CORPORATIONS
SOLELY BECAUSE OF THE APPELLANT'S FOREIGN INCORPORATION.  THIS IS NOT A
CASE IN WHICH THE EXEMPTION WAS WITHHELD BY REASON OF THE FOREIGN
CORPORATION'S FAILURE OR INABILITY TO BENEFIT THE STATE IN THE SAME
MEASURE AS DO DOMESTIC NONPROFIT CORPORATIONS.  COMPARE BOARD OF
EDUCATION V. ILLINOIS, 203 U.S. 553.  NOR HAVE THE APPELLEES ADVANCED
ANY OTHER DISTINCTION BETWEEN THIS APPELLANT AND DOMESTIC NONPROFIT
CORPORATIONS WHICH WOULD JUSTIFY THE INEQUALITY OF TREATMENT. 

THE NEW JERSEY SUPREME COURT CONCLUDED THAT THE LEGISLATIVE PURPOSE
COULD REASONABLY HAVE BEEN TO AVOID THE ADMINISTRATIVE BURDEN WHICH THE
TAXING AUTHORITIES WOULD BEAR IF THEY HAD TO EXAMINE THE LAWS OF OTHER
JURISDICTIONS IN ORDER TO DETERMINE WHETHER A CORPORATION WITH
NONPROFIT STATUS UNDER THOSE LAWS WOULD ALSO SATISFY NEW JERSEY
REQUIREMENTS.  BUT THIS BURDEN WOULD EXIST ONLY IF A FOREIGN
CORPORATION SOUGHT EXEMPTION IN NEW JERSEY ON THE BASIS OF ITS
NONPROFIT STATUS AT HOME.  IT IS ONE THING FOR A STATE TO AVOID THIS
EXTRA BURDEN BY REFUSING TO GRANT SUCH AN AUTOMATIC EXEMPTION.  IT IS
QUITE ANOTHER TO DENY A FOREIGN CORPORATION AN OPPORTUNITY EQUIVALENT
TO THAT OF A DOMESTIC CORPORATION TO DEMONSTRATE THAT IT MEETS THE
REQUIREMENTS FOR A NONPROFIT CORPORATION UNDER LOCAL LAW.  NEITHER THE
NEW JERSEY SUPREME COURT NOR THE APPELLEES HAVE SUGGESTED THAT THERE IS
ANY GREATER ADMINISTRATIVE BURDEN IN EVALUATING A FOREIGN THAN A
DOMESTIC CORPORATION UNDER NEW JERSEY LAW.  WE MUST THEREFORE CONCLUDE,
AS WE DID IN WHEELING, THAT THE APPELLANT HAS NOT BEEN "ACCORDED EQUAL
TREATMENT, AND THE INEQUALITY IS NOT BECAUSE OF THE SLIGHTEST
DIFFERENCE IN (NEW JERSEY'S) RELATION TO THE DECISIVE TRANSACTION, BUT
SOLELY BECAUSE OF THE DIFFERENT RESIDENCE OF THE OWNER."  337 U.S.,AT
572. 

THE JUDGMENT OF THE NEW JERSEY SUPREME COURT IS REVERSED, AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

/1/  N.J. STAT. ANN. SEC. 14:15-2 REQUIRES A FOREIGN CORPORATION, IN
ORDER TO OBTAIN A CERTIFICATE OF AUTHORIZATION TO TRANSACT BUSINESS IN
THE STATE, TO FILE WITH THE SECRETARY OF STATE A COPY OF ITS CHARTER
AND A STATEMENT SETTING FORTH THE AMOUNTS OF ITS AUTHORIZED AND ISSUED
CAPITAL STOCK, THE CHARACTER OF THE BUSINESS TO BE TRANSACTED IN THE
STATE, THE PLACE OF THE PRINCIPAL OFFICE WITHIN THE STATE, AND THE NAME
OF A RESIDENT AGENT FOR THE SERVICE OF PROCESS. 

/2/  N.J. STAT. ANN. SEC. 54:4-3.6 PROVIDES IN PERTINENT PART THAT
THE "EXEMPTIONS SHALL APPLY ONLY WHERE THE ASSOCIATION, CORPORATION OR
INSTITUTION CLAIMING THE EXEMPTION OWNS THE PROPERTY IN QUESTION AND IS
INCORPORATED OR ORGANIZED UNDER THE LAWS OF THIS STATE AND AUTHORIZED
TO CARRY OUT THE PURPOSES ON ACCOUNT OF WHICH THE EXEMPTION IS
CLAIMED." 

BY CHAPTER 24 OF THE LAWS OF 1967, N.J. STAT. ANN. SEC. 54:4-3.6A
WAS ADDED.  IT PROVIDES AN EXEMPTION FOR THE FOLLOWING PROPERTY:  "ALL
BUILDINGS AND STRUCTURES LOCATED IN THIS STATE AND USED EXCLUSIVELY BY
A NONPROFIT ASSOCIATION OR CORPORATION ORGANIZED UNDER THE LAWS OF THIS
OR ANOTHER STATE FOR THE PRODUCTION AND BROADCASTING OF EDUCATIONL
TELEVISION; THE LAND WHEREON THE BUILDINGS AND STRUCTURES ARE ERECTED
AND WHICH MAY BE NECESSARY FOR THE FAIR ENJOYMENT THEREOF, AND WHICH IS
DEVOTED TO THE FOREGOING PURPOSE, AND NO OTHER PURPOSE, AND DOES NOT
EXCEED 30 ACRES IN EXTENT; THE FURNITURE, EQUIPMENT AND PERSONAL
PROPERTY IN SAID BUILDINGS AND STRUCTURES IF USED AND DEVOTED TO THE
FOREGOING PURPOSE."  THE AMENDMENT APPLIES ONLY "TO TAXES PAYABLE IN
1968 AND THEREAFTER." 

/3/  BECAUSE IT CONCLUDED THAT THE APPELLANT WAS NOT ENTITLED TO AN
EXEMPTION IN ANY EVENT, THE NEW JERSEY SUPREME COURT NOTED THAT IT DID
NOT HAVE TO DECIDE WHETHER THE FAILURE OF THE APPELLANT TO COMPLY WITH
THE NORMAL PROCEDURE FOR CLAIMING AN EXEMPTION UNDER N.J. STAT. ANN.
SEC. 54:4-4.4 SHOULD PRECLUDE IT FROM ASSERTING AN EXEMPT STATUS. 

MR. JUSTICE BLACK DISSENTS FROM THE REVERSAL OF THIS CASE AND WOULD
AFFIRM IT. 

JAMES M. MARSH ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE GROVER C. RICHMAN, JR., AND LEWIS WEINSTOCK. 

JOHN W. TRIMBLE ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE
BOROUGHT OF GLASSBORO. 
..END :










SMITH V. YEAGER, 393 U.S. 122 


       SMITH V. YEAGER, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE THIRD CIRCUIT. 

        NO. 399.  DECIDED NOVEMBER 12, 1968. 


FOLLOWING THE SUPREME COURT OF NEW JERSEY'S AFFIRMANCE OF
PETITIONER'S MURDER CONVICTION, IN 1961 PETITIONER SOUGHT A WRIT OF
HABEAS CORPUS IN THE DISTRICT COURT, ASSERTING, AMONG OTHER GROUNDS,
THAT HIS CONFESSION HAD BEEN COERCED.  PETITIONER'S THEN COUNSEL,
THOUGH ASSERTING THE RIGHT TO AN EVIDENTIARY HEARING, RELINQUISHED IT.
RELYING ON THE STATE TRIAL RECORD, THE COURT HELD, INTER ALIA, THAT THE
CONFESSIOR WAS NOT COERCED AND DENIED THE PETITION.  THEREAFTER
TOWNSEND V. SAIN, 372 U.S. 293, WAS DECIDED, WHICH SUBSTANTIALLY
INCREASED THE AVAILABILITY OF EVIDENTIARY HEARINGS IN HABEAS CORPUS
PROCEEDINGS.  THE COURT OF APPEALS AFFIRMED.  IN 1965 PETITIONER AGAIN
SOUGHT HABEAS CORPUS IN THE DISTRICT COURT AND ASKED FOR AN EVIDENTIARY
HEARING.  NOTING THAT THE COERCION ISSUE HAD BEEN ADJUDICATED IN THE
PRIOR HABEAS CORPUS PROCEEDING, THE DISTRICT COURT, WITHOUT CONDUCTING
AN EVIDENTIARY HEARING, DENIED THE APPLICATION.  THE COURT OF APPEALS
AFFIRMED, CONCLUDING THAT PETITIONER HAD WAIVED HIS CLAIM TO SUCH A
HEARING IN 1961.  HELD: 

1.  THE ESSENTIAL QUESTION IN A SUBSEQUENT HABEAS CORPUS PROCEEDING
(TO WHICH THE USUAL PRINCIPLES OF RES JUDICATA DO NOT APPLY AND
REGARDLESS OF WAIVER STANDARDS IN OTHER CIRCUMSTANCES) IS WHETHER THE
PETITIONER IN THE PRIOR PROCEEDING "DELIBERATELY WITHHELD THE NEWLY
ASSERTED GROUND OR OTHERWISE ABUSED THE WRIT." 

2.  PETITIONER'S FAILURE TO DEMAND AN EVIDENTIARY HEARING IN 1961
FOLLOWED BY SUCH A DEMAND AFTER THIS COURT DECIDED TOWNSEND V. SAIN,
CONSTITUTES NO ABUSE OF THE WRIT OF HABEAS CORPUS OR A WAIVER OF HIS
CLAIM TO A HEARING. 

CERTIORARI GRANTED; 395 F.2D 245, REVERSED AND REMANDED. 

PER CURIAM. 

THIS PETITION FOR A WRIT OF CERTIORARI PRESENTS THE QUESTION WHETHER
PETITIONER'S RELINQUISHMENT OF AN EVIDENTIARY HEARING IN A FEDERAL
HABEAS CORPUS PROCEEDING TAKING PLACE PRIOR TO TOWNSEND V. SAIN, 372
U.S. 293, BARS HIM FROM OBTAINING SUCH A HEARING ON A SUBSEQUENT
APPLICATION MADE AFTER TOWNSEND WAS DECIDED. 

IN 1957, PETITIONER WAS CONVICTED OF FIRST-DEGREE MURDER IN A NEW
JERSEY COURT, AND SENTENCED TO DEATH.  THE SUPREME COURT OF NEW JERSEY
AFFIRMED THE CONVICTION, STATE V. SMITH, 27 N.J. 433, 142 A.2D 890, AND
SUBSEQUENTLY AFFIRMED THE DENIAL OF A MOTION FOR A NEW TRIAL.  STATE V.
SMITH, 29 N.J. 561, 150 A.2D 769. 

PETITIONER THEREAFTER SOUGHT A WRIT OF HABEAS CORPUS IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.  DURING ORAL
ARGUMENT BEFORE THE DISTRICT COURT ON JUNE 5, 1961, PETITIONER'S
COUNSEL, REFERRING TO THE THEN RECENT DECISION IN ROGERS V. RICHMOND,
365 U.S. 534, STATED: 

     "THE UNITED STATES SUPREME COURT SAYS YOUR HONOR MAY HOLD A

  HEARING DE NOVO IF NEED BE TO GO INTO THE HISTORICAL FACTS BEHIND

  THIS CASE.  I DON'T THINK IT IS NECESSARY HERE. 

     "I THINK IF YOUR HONOR LIMITS HIMSELF TO THE RECORD, I THINK

  THAT THE ERROR, THE FUNDAMENTAL CONSTITUTIONAL ERROR IN THIS CASE

  IS SO OVERWHELMING THAT I NEED NOT STAND HERE AND ARGUE THIS CASE

  AT ANY GREAT LENGTH."  APPENDIX TO PETITION 69A. 

THE DISTRICT COURT DID NOT CONDUCT AN EVIDENTIARY HEARING.  RELYING ON
THE STATE TRIAL RECORD, IT DENIED THE APPLICATION, HOLDING, INTER ALIA,
THAT PETITIONER'S CONFESSION, INTRODUCED AT HIS TRIAL, WAS NOT THE
PRODUCT OF COERCION.  UNITED STATES EX REL. SMITH V. NEW JERSEY, 201
F.SUPP.  272.  THE COURT OF APPEALS AFFIRMED.  322 F.2D 810.  /1/ 

IN 1965, PETITIONER AGAIN SOUGHT HABEAS CORPUS IN THE DISTRICT
COURT, REQUESTING AN EVIDENTIARY HEARING.  AS SUPPLEMENTED, THE
APPLICATION ALLEGED FACTS RELEVANT TO THE ADMISSIBILITY OF THE
CONFESSION WHICH WERE NOT BROUGHT OUT AT TRIAL, AND WHICH, IF PROVED,
PRESENTED A STRONGER CASE THAT THE CONFESSION WAS COERCED.  /2/  THE
DISTRICT COURT DENIED THE APPLICATION WITHOUT CONDUCTING AN EVIDENTIARY
HEARING, NOTING THAT THE ISSUE OF COERCION HAD BEEN ADJUDICATED IN THE
PRIOR HABEAS PROCEEDING.  THE COURT OF APPEALS AFFIRMED PER CURIAM,
JUDGE BIGGS DISSENTING.  REFERRING TO THE ABOVE-QUOTED STATEMENT BY
PETITIONER'S COUNSEL, AND TO SOME REMARKS OF THE DISTRICT COURT AT AN
EARLIER STAGE OF THE 1961 PROCEEDING, /3/  THE COURT OF APPEALS
CONCLUDED THAT PETITIONER HAD WAIVED HIS CLAIM TO AN EVIDENTIARY
HEARING IN 1961.  395 F.2D 245.  REHEARING EN BANC WAS DENIED, JUDGE
FREEDMAN DISSENTING, /4/  AND THIS PETITION FOR CERTIORARI FOLLOWED. 

WE NOTE INITIALLY THAT THE USUAL PRINCIPLES OF RES JUDICATA ARE
INAPPLICABLE TO SUCCESSIVE HABEAS CORPUS PROCEEDINGS.  /5/  SALINGER V.
LOISEL, 265 U.S. 224; CF. SANDERS V. UNITED STATES, 373 U.S. 1. 
WHATEVER THE STANDARDS FOR WAIVER MAY BE IN OTHER CIRCUMSTANCES, THE
ESSENTIAL QUESTION HERE IS WHETHER THE PETITIONER "DELIBERATELY
WITHHELD THE NEWLY ASSERTED GROUND" IN THE PRIOR PROCEEDING, OR
"OTHERWISE ABUSED THE WRIT."  28 U.S.C. 2244(B) (1964 ED., SUPP. III). 

AT THE TIME OF THE 1961 PROCEEDING, BROWN V. ALLEN, 344 U.S. 443,
INDICATED THAT A DISTRICT COURT'S DISCRETION TO HOLD AN EVIDENTIARY
HEARING WAS TO BE EXERCISED ONLY IN "UNUSUAL CIRCUMSTANCES," 344
U.S.,AT 463, OR WHERE A "VITAL FLAW" EXISTED IN THE STATE PROCEDURE. 
344 U.S.,AT 506 (OPINION OF MR. JUSTICE FRANKFURTER).  TOWNSEND V.
SAIN, SUPRA, HAD NOT YET BEEN DECIDED.  THIS COURT RECOGNIZED IN
TOWNSEND "THAT THE OPINIONS IN BROWN V. ALLEN . . . DO NOT PROVIDE
ANSWERS FOR ALL ASPECTS OF THE HEARING PROBLEM FOR THE LOWER FEDERAL
COURTS, WHICH HAVE REACHED WIDELY DIVERGENT, IN FACT OFTEN
IRRECONCILABLE, RESULTS," 372 U.S.,AT 310, AND ESTABLISHED CRITERIA FOR
THE GRANTING OF EVIDENTIARY HEARINGS "WHICH MUST BE CONSIDERED TO
SUPERSEDE, TO THE EXTENT OF ANY INCONSISTENCIES, THE OPINIONS IN BROWN
V. ALLEN.  . . . "  372 U.S.,AT 312.  TOWNSEND V. SAIN SUBSTNATIALLY
INCREASED THE AVAILABILITY OF EVIDENTIARY HEARINGS IN HABEAS CORPUS
PROCEEDINGS, AND MADE MANDATORY MUCH OF WHAT HAD PREVIOUSLY BEEN WITHIN
THE BOARD DISCRETION OF THE DISTRICT COURT.  SEE ALSO FAY V. NOIA, 372
U.S. 391. 

IT IS AT LEAST DOUBTFUL WHETHER PETITIONER COULD HAVE OBTAINED AN
EVIDENTIARY HEARING AS THE LAW STOOD IN 1961.  INDEED, AT THE TIME, THE
STATE ARGUED TO THE DISTRICT COURT WITH SOME COGENCY THAT PETITIONER
PRESENTED "NO UNUSUAL CIRCUMSTANCES CALLING FOR A HEARING."  WE DO NOT
BELIEVE THAT PETITIONER SHOULD BE PLACED IN A WORSE POSITION BECAUSE
HIS THEN COUNSEL ASSERTED THAT HE HAD A RIGHT TO AN EVIDENTIARY HEARING
AND THEN RELINQUISHED IT.  WHATEVER COUNSEL'S REASONS FOR THIS OBSCURE
GESTURE OF NOBLESSE OBLIGE, /6/  WE CANNOT NOW EXAMINE THE STATE OF HIS
MIND, OR PRESUME THAT HE INTENTIONALLY RELINQUISHED A KNOWN RIGHT OR
PRIVILEGE WAS OF DOUBTFUL EXISTENCE AT THE TIME OF THE SUPPOSED
WAIVER.  IN SHORT, WE CONCLUDE THAT PETITIONER'S FAILURE TO DEMAND AN
EVIDENTIARY HEARING IN 1961, FOLLOWED BY SUCH A DEMAND AFTER THE
DECISION IN TOWNSEND V. SAIN, SUPRA, CONSTITUTES NO ABUSE OF THE WRIT
OF HABEAS CORPUS. 

"IF, FOR ANY REASON NOT ATTRIBUTABLE TO THE INEXCUSABLE NEGLECT OF
PETITIONER . . . EVIDENCE CRUCIAL TO THE ADEQUATE CONSIDERATION OF THE
CONSTITUTIONAL CLAIM WAS NOT DEVELOPED AT THE STATE HEARING, A FEDERAL
HEARING IS COMPELLED."  TOWNSEND V. SAIN, SUPRA, AT 317.  PETITIONER'S
ASSERTION THAT HE COMES WITHIN THIS PRINCIPLE IS NOT CONTROVERTED BY
RESPONDENT OR BY THE RECORD BELOW.  WE DO NOT, HOWEVER, PASS ON THIS
QUESTION, OR ON THE OTHER QUESTIONS PRESENTED IN THE PETITION.  THESE,
AS WELL AS OTHER ISSUES APPROPRIATELY RAISED BELOW, MAY BE CONSIDERED
BY THE DISTRICT COURT.  WE HOLD ONLY THAT PETITIONER HAS NOT, BY REASON
OF ANYTHING THAT OCCURRED DURING THE 1961 HABEAS PROCEEDING, WAIVED HIS
CLAIM TO AN EVIDENTIARY HEARING IN THE DISTRICT COURT. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED, AND THE CASE IS REMANDED TO THAT COURT
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  PETITIONER HAS SOUGHT, AND WAS DENIED, CERTIORARI IN THIS COURT
ON THREE PREVIOUS OCCASIONS-- TWICE TO THE STATE COURTS, 361 U.S. 861;
379 U.S. 1005, ONCE TO THE UNITED STATES COURT OF APPEALS IN THE PRIOR
HABEAS CORPUS PROCEEDING, 376 U.S. 928.  IT IS WORTH NOTING THAT THE
PRESENT PLEADINGS BELOW SUBSTANTIALLY EXPAND AND CLARIFY THE CLAIMS
HERETOFORE PRESENTED BY PETITIONER. 

/2/  THE ALLEGATIONS, WHICH INCLUDE CLAIMS OF PHYSICAL HARRASSMENT
BY THE POLICE, ARE SET OUT IN JUDGE BIGGS' DISSENTING OPINION BELOW,
395 F.2D 245, 253, N. 12. 

/3/  ON MAY 15, 1961, DURING ARGUMENT ON THE STATE'S MOTION TO
STRIKE PETITIONER'S "AMENDED AND/OR SUPPLEMENTAL PETITION," THE
DISTRICT COURT INDICATED ITS CONCERN THAT THE RECORD BE COMPLETE TO THE
SATISFACTION OF BOTH PARTIES.  THE COURT OF APPEALS CONSTRUED THIS AS
AN OFFER TO CONDUCT AN EVIDENTIARY HEARING.  NO EXPLICIT MENTION OF AN
EVIDENTIARY HEARING WAS MADE, HOWEVER.  A READING OF THE ENTIRE
COLLOQUY IN THE DISTRICT COURT, THOUGH NOT UNAMBIGUOUS, SUGGESTS, AS
JUDGE BIGGS NOTED IN DISSENT BELOW, THAT THE DISCUSSION WAS CONCERNED
ONLY WITH "THE ISSUE OF WHETHER OR NOT THE CASE WOULD PROCEED UPON THE
ORIGINAL PETITION FOR HABEAS CORPUS AND ANSWER, THE SUPPLEMENTAL
PETITION FOR HABEAS CORPUS AND ANSWER, OR ON BOTH SETS OF PLEADINGS." 
395 F.2D 245, 249, N. 4. 

/4/  JUDGE BIGGS DID NOT PARTICIPATE. 

/5/  FOR THIS REASON, IF NO OTHER, THE FACT THAT TOWNSEND V. SAIN
WAS DECIDED BEFORE THE COURT OF APPEALS' DECISION IN THE FIRST
PROCEEDING, AND CONSIDERED BY THE COURT OF APPEALS THERE IN DENYING
REHEARING EN BANC, IS NOT DISPOSITIVE OF THE PRESENT CASE. 

/6/  AS THE STATE POINTED OUT DURING THE 1961 HEARING, ROGERS V.
RICHMOND, SUPRA, THE CASE CHIEFLY RELIED ON BY PETITIONER, DOES NOT
APPEAR TO SUPPORT HIS CLAIM TO AN EVIDENTIARY HEARING.  SEE ESPECIALLY
365 U.S.,AT 547. 

MR. JUSTICE WHITE DISSENTS AND WOULD GRANT CERTIORARI AND SET THE
CASE FOR ORAL ARGUMENT. 

EDWARD BENNETT WILLIAMS, STEVEN M. UMIN, AND STEPHEN F. LICHTENSTEIN
FOR PETITIONER. 
..END :










DOOLIN V. KORSHAK, 393 U.S. 127 


       DOOLIN, DBA NATIONAL NOVELTY CO., ET AL. V. KORSHAK,

           DIRECTOR OF REVENUE, ET AL.

        APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

        NO. 439.  DECIDED NOVEMBER 12, 1968. 


39 ILL.2D 521, 236 N.E.2D 897, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

OWEN RALL FOR APPELLANTS. 

WILLAIM G. CLARK, ATTORNEY GENERAL OF ILLINOIS, AND JOHN J. O'TOOLE,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :







ATLANTIC OCEAN PRODUCTS, INC. V. LETH, 393 U.S. 127 


       ATLANTIC OCEAN PRODUCTS, INC., ET AL. V. LETH, DIRECTOR,

           DEPARTMENT OF AGRICULTURE OF OREGON, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF OREGON. 

        NO. 417.  DECIDED NOVEMBER 12, 1968. 


292 F.SUPP.  615, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

THOMAS H. TONGUE FOR APPELLANTS. 

ROBERT Y. THORNTON, ATTORNEY GENERAL OF OREGON, AND HAROLD E. BURKE,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :






CROSS V. COURT OF APPEAL OF CALIFORNIA, 393 U.S. 128 


       CROSS ET AL. V. COURT OF APPEAL OF CALIFORNIA, FIRST

           APPELLATE DISTRICT, ET AL.

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 533, MISC.  DECIDED NOVEMBER 12, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :











KOLOD V. UNITED STATES, 390 U.S. 136 


       KOLOD ET AL. V. UNITED STATES. 

        ON PETITION FOR REHEARING. 

        NO. 133.  CERTIORARI DENIED OCTOBER 9, 1967.-- REHEARING
AND

           CERTIORARI GRANTED AND CASE DECIDED JANUARY 29, 1968. 


AFTER THE PETITION FOR WRIT OF CERTIORARI IN THIS CASE WAS FILED,
PETITIONERS' COUNSEL, AS ALLEGED IN THEIR PETITION FOR REHEARING,
LEARNED OF A GOVERNMENT AGENCY'S ELECTRONIC MONITORING OF A
PETITIONER'S CONVERSATIONS AT HIS PLACE OF BUSINESS.  THE SOLICITOR
GENERAL SOUGHT TO JUSTIFY NONDISCLOSURE BY THE GOVERNMENT ON THE BASIS
OF THE JUSTICE DEPARTMENT'S DETERMINATION THAT THE EAVESDROPPED
INFORMATION WAS NOT ARGUABLY RELEVANT TO THIS PROSECUTION.  HELD:  THIS
COURT CANNOT ACCEPT THE DEPARTMENT'S EX PARTE DETERMINATION OF
RELEVANCY IN LIEU OF SUCH A DETERMINATION IN AN ADVERSARY DISTRICT
COURT PROCEEDING, TO BE CONFINED TO THE CONTENT OF ANY ELECTRONICALLY
EAVESDROPPED CONVERSATIONS AT PETITIONER'S PLACE OF BUSINESS AND THE
PERTINENCE THEREOF TO PETITIONERS' SUBSEQUENT CONVICTIONS. 

REHEARING AND CERTIORARI GRANTED; 371 F.2D 983, VACATED AND
REMANDED. 

PER CURIAM. 

THE PETITION FOR REHEARING IS GRANTED AND THE ORDER DENYING
PETITIONERS' PETITION FOR THE WRIT OF CERTIORARI, 389 U.S. 834, IS SET
ASIDE.  THE PETITION FOR REHEARING ALLEGES THAT PETITIONERS' COUNSEL
WAS INFORMED AFTER THE PETITION FOR THE WRIT OF CERTIORARI WAS FILED
THAT PETITIONER ALDERISIO'S CONVERSATIONS WERE MONITORED THROUGH
ELECTRONIC SURVEILLANCE CONDUCTED BY A GOVERNMENT AGENCY AT ALDERISIO'S
PLACE OF BUSINESS IN CHICAGO.  THE COURT INVITED THE SOLICITOR GENERAL
TO RESPOND TO THE PETITION FOR REHEARING.  389 U.S. 966.  THE SOLICITOR
GENERAL RESPONDED THAT THE PETITION SHOULD BE DENIED BECAUSE THE CASE
DID NOT COME WITHIN " . . . THE POLICY OF THE DEPARTMENT OF JUSTICE TO
MAKE DISCLOSURE TO THE COURTS IF IT FINDS (1) THAT A DEFENDANT WAS
PRESENT OR PARTICIPATED IN A CONVERSATION OVERHEARD BY UNLAWFUL
ELECTRONIC SURVEILLANCE, AND (2) THAT THE GOVERNMENT HAS THEREBY
OBTAINED ANY INFORMATION WHICH IS ARGUABLY RELEVANT TO THE LITIGATION
INVOLVED."  THE SOLICITOR GENERAL STATED THAT "AS A RESULT OF HIS
INQUIRIES AND EXAMINATION, HE IS SATISFIED THAT THERE IS NOTHING THAT
IS ARGUABLY RELEVANT TO THE PRESENT CASE,"  THAT IS, "NO OVERHEARD
CONVERSATION IN WHICH ANY OF THE PETITIONERS PARTICIPATED IS ARGUABLY
RELEVANT TO THIS PROSECUTION." 

WE READ THE RESPONSE AS ADMITTING THAT ALDERISIO'S CONVERSATIONS
WERE OVERHEARD BY UNLAWFUL ELECTRONIC EAVESDROPPING BUT AS JUSTIFYING
NONDISCLOSURE ON THE BASIS OF THE DEPARTMENT'S DETERMINATION THAT THE
INFORMATION OBTAINED WAS NOT ARGUABLY RELEVANT TO THIS PROSECUTION.  WE
CANNOT ACCEPT THE DEPARTMENT'S EX PARTE DETERMINATION OF RELEVANCY IN
LIEU OF SUCH DETERMINATION IN AN ADVERSAY PROCEEDING IN THE DISTRICT
COURT.  ACCORDINGLY WE GRANT THE PETITION FOR CERTIORARI AS TO EACH OF
THE PETITIONERS ALDERISIO AND ALDERMAN, /1/  VACATE THE JUDGMENT OF THE
COURT OF APPEALS, AND REMAND THE CASE TO THE DISTRICT COURT FOR A
HEARING, FINDINGS, AND CONCLUSIONS ON THE NATURE AND RELEVANCE TO THESE
CONVICTIONS OF ANY CONVERSATIONS THAT MAY BE SHOWN TO HAVE BEEN
OVERHEARD THROUGH UNLAWFUL ELECTRONIC SURVEILLANCE OF PETITIONER
ALDERISIO'S PLACE OF BUSINESS IN CHICAGO.  IN SUCH PROCEEDINGS, THE
DISTRICT COURT WILL CONFINE THE EVIDENCE PRESENTED BY BOTH SIDES TO
THAT WHICH IS MATERIAL TO QUESTIONS OF THE CONTENT OF ANY
ELECTRONICALLY EAVESDROPPED CONVERSATIONS AT PETITIONER ALDERISIO'S
PLACE OF BUSINESS IN CHICAGO, AND OF THE RELEVANCE OF ANY SUCH
CONVERSATIONS TO PETITIONERS' SUBSEQUENT CONVICTIONS.  THE DISTRICT
COURT WILL MAKE SUCH FINDINGS OF FACT ON THESE QUESTIONS AS MAY BE
APPROPRIATE IN LIGHT OF THE FURTHER EVIDENCE AND OF THE ENTIRE EXISTING
RECORD.  IF THE DISTRICT COURT DECIDES, ON THE BASIS OF SUCH FINDINGS,
THAT THE CONVICTIONS OF THE PETITIONERS WERE NOT TAINTED BY THE USE OF
EVIDENCE IMPROPERLY OBTAINED, IT WILL ENTER NEW FINAL JUDGMENTS OF
CONVICTIONS BASED ON THE EXISTING RECORD AS SUPPLEMENTED BY ITS FURTHER
FINDINGS, THEREBY PRESERVING TO ALL AFFECTED PARTIES THE RIGHT TO SEEK
FURTHER APPROPRIATE APPELLATE REVIEW.  IF, ON THE OTHER HAND, THE
DISTRICT COURT CONCLUDES AFTER SUCH FURTHER PROCEEDINGS THAT THE
CONVICTION OF A PETITIONER WAS TAINTED, IT WOULD THEN BECOME ITS DUTY
TO ACCORD SUCH PETITIONER A NEW TRIAL.  HOFFA V. UNITED STATES, 387
U.S. 231, 233-234. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF
THE COURT OF APPEALS IS VACATED, AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  PETITIONER KOLOD DIED IN AUGUST 1967 AND THE PETITION FOR
CERTIORARI AS TO HIM IS DISMISSED. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

EDWARD BENNETT WILLIAMS, HAROLD UNGAR AND W. H. ERICKSON FOR
PETITIONERS. 

SOLICITOR GENERAL GRISWOLD, FORMER SOLICITOR GENERAL MARSHALL,
ASSISTANT ATTORNEY GENERAL VINSON, BEATRICE ROSENBERG AND SIDNEY M.
GLAZER FOR THE UNITED STATES. 
..END :

















FULLER V. ALASKA, 393 U.S. 80 


       FULLER V. ALASKA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           ALASKA. 

        NO. 249.  DECIDED OCTOBER 28, 1968. 


LEE V. FLORIDA, 392 U.S. 378, WHICH HELD INADMISSIBLE IN STATE
CRIMINAL TRIALS EVIDENCE VIOLATIVE OF SEC. 605 OF THE FEDERAL
COMMUNICATIONS ACT, IS TO BE APPLIED ONLY TO TRIALS IN WHICH SUCH
EVIDENCE IS SOUGHT TO BE INTRODUCED AFTER THE DATE OF THAT DECISION. 

CERTIORARI GRANTED; 437 P.2D 772, AFFIRMED. 

PER CURIAM. 

PETITIONER WAS CONVICTED OF SHOOTING WITH INTENT TO KILL OR WOUND
AND WAS SENTENCED TO 10 YEARS IN PRISON.  OVER PETITIONER'S OBJECTION
THAT IT WAS OBTAINED IN VIOLATION OF SEC. 605 OF THE FEDERAL
COMMUNICATIONS ACT, 48 STAT. 1103, 47 U.S.C. 605, THE PROSECUTION
INTRODUCED IN EVIDENCE A TELEGRAPH ALLEGEDLY SENT BY PETITIONER TO AN
ACCOMPLICE.  THE SUPREME COURT OF ALASKA AFFIRMED, HOLDING THAT IT DID
NOT NEED TO DECIDE WHETHER SEC. 605 HAD ACTUALLY BEEN VIOLATED SINCE
THE EVIDENCE WAS IN ANY EVENT ADMISSIBLE IN STATE TRIALS UNDER SCHWARTZ
V. TEXAS, 344 U.S. 199. 

IN LEE V. FLORIDA, 392 U.S. 378, WE OVERRULED SCHWARTZ V. TEXAS AND
HELD THAT EVIDENCE VIOLATIVE OF SEC. 605 IS NOT ADMISSIBLE IN STATE
CRIMINAL TRIALS.  THE DECISION OF THE ALASKA SUPREME COURT CANNOT
STAND, THEREFORE, IF LEE IS TO BE APPLIED RETROACTIVELY.  WE HOLD,
HOWEVER, THAT THE EXCLUSIONARY RULE OF LEE IS TO BE GIVEN PROSPECTIVE
APPLICATION, AND, ACCORDINGLY, WE AFFIRM. 

PROSPECTIVE APPLICATION OF LEE IS SUPPORTED BY ALL OF THE
CONSIDERATIONS OUTLINED IN STOVALL V. DENNO, 388 U.S. 293, 297.  /1/
THE PURPOSE OF LEE WAS IN NO SENSE TO "ENHANCE THE RELIABILITY OF THE
FACT-FINDING PROCESS AT TRIAL."  JOHNSON V. NEW JERSEY, 384 U.S. 719,
729.  LIKE MAPP V. OHIO, 367 U.S. 643, LEE WAS DESIGNED TO ENFORCE THE
FEDERAL LAW.  /2/  LINKLETTER V. WALKER, 381 U.S. 618, 639.  AND
EVIDENCE SEIZED IN VIOLATION OF THE FEDERAL STATUTE IS NO LESS RELEVANT
AND RELIABLE THAN THAT SEIZED IN VIOLATION OF THE FOURTH AMENDMENT TO
THE CONSTITUTION.  MOREOVER, THE STATES HAVE JUSTIFIABLY RELIED UPON
THE EXPLICIT HOLDING OF SCHWARTZ THAT SUCH EVIDENCE WAS ADMISSIBLE. 

RETROACTIVE APPLICATION OF LEE WOULD OVERTURN EVERY STATE CONVICTION
OBTAINED IN GOOD-FAITH RELIANCE ON SCHWARTZ.  SINCE THIS RESULT IS NOT
REQUIRED BY THE PRINCIPLE UPON WHICH LEE WAS DECIDED, OR NECESSARY TO
ACCOMPLISH ITS PURPOSE, WE HOLD THAT THE EXCLUSIONARY RULE IS TO BE
APPLIED ONLY TO TRIALS IN WHICH THE EVIDENCE IS SOUGHT TO BE INTRODUCED
AFTER THE DATE OF OUR DECISION IN LEE. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, AND THE JUDGMENT
OF THE SUPREME COURT OF ALASKA IS AFFIRMED. 

/1/  THESE CONSIDERATIONS WERE MORE RECENTLY APPLIED IN DESTEFANO V.
WOODS, 392 U.S. 631, 633, IN WHICH WE CONDEMNED THAT THE RIGHT TO A
JURY TRIAL IN STATE CRIMINAL PROSECUTIONS UNDER DUNCAN V. LOUISIANA,
391 U.S. 145, AND BLOOM V. ILLINOIS, 391 U.S. 194, WAS PROSPECTIVE
ONLY. 

/2/  LEE V. FLORIDA, 392 U.S.,AT 386-387: 

"WE CONCLUDE, AS WE CONCLUDED IN ELKINS AND IN MAPP, THAT NOTHING
SHORT OF MANDATORY EXCLUSION OF THE ILLEGAL EVIDENCE WILL COMPEL
RESPECT FOR THE FEDERAL LAW 'IN THE ONLY EFFECTIVELY AVAILABLE WAY-- BY
REMOVING THE INCENTIVE TO DISREGARD IT.'  ELKINS V. UNITED STATES, 364
U.S.,AT 217." 

MR. JUSTICE BLACK DISSENTS FOR THE REASONS SET OUT IN HIS DISSENTING
OPINION IN LINKLETTER V. WALKER, 381 U.S. 618, 640.  BUT SEE HIS
DISSENT IN LEE V. FLORIDA, 392 U.S. 378, 387. 

MR. JUSTICE DOUGLAS, BELIEVING THAT THE RULE OF LEE V. FLORIDA, 392
U.S. 378, WHICH WAS APPLIED RETROACTIVELY IN THAT CASE, SHOULD BE
APPLIED RETROACTIVELY IN OTHER CASES, TOO, DISSENTS. 

GEORGE KAUFMANN FOR PETITIONER. 
..END :















MENGELKOCH V. WELFARE COMM'N., 393 U.S. 83 


       MENGELKOCH ET AL. V. INDUSTRIAL WELFARE COMMISSION ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

           DISTRICT OF CALIFORNIA. 

      NO. 375.  DECIDED OCTOBER 28, 1968. 


A THREE-JUDGE FEDERAL COURT DISSOLVED ITSELF FOR WANT OF
JURISDICTION.  A SINGLE DISTRICT JUDGE THEN DISMISSED THE CASE ON THE
GROUND OF ABSTENTION AND INCORPORATED THE THREE-JUDGE COURT'S
DISSOLUTION ORDER IN HIS OPINION BY REFERENCE.  IN THIS APPEAL FROM
BOTH JUDGMENTS HELD THAT THE COURT OF APPEALS, AND NOT THIS COURT, HAS
JURISDICTION OVER THE APPEAL FROM THE DISSOLUTION ORDER AND FROM THE
ABSTENTION DECISION. 

284 F.SUPP.  950, VACATED AND REMANDED; 284 F.SUPP.  956,
DISMISSED. 

PER CURIAM. 

A THREE-JUDGE FEDERAL COURT, CONVENED PURSUANT TO 28 U.S.C. 2281,
DETERMINED THAT "THERE IS NO JURISDICTION FOR A THREE-JUDGE COURT" AND
ENTERED AN ORDER DISSOLVING ITSELF.  284 F.SUPP.  950, 956.  THE SINGLE
DISTRICT JUDGE IN WHOSE COURT THE CASE WAS ORIGINALLY FILED CONSIDERED
FURTHER AND DISMISSED THE CASE WITHOUT PREJUDICE UNDER THE DOCTRINE OF
ABSTENTION, STATING IN HIS MEMORANDUM OPINION THAT "(THE ORDER
DISSOLVING THE THREE-JUDGE COURT IS INCORPORATED IN THIS MEMORANDUM BY
REFERENCE."  284 F.SUPP.  956, 957.  APPELLANTS APPEAL FROM BOTH
JUDGMENTS.  IN THESE CIRCUMSTANCES, WE HAVE NO JURISDICTION TO
ENTERTAIN A DIRECT APPEAL FROM THE DECISION OF THE SINGLE JUDGE; SUCH
JURISDICTION IS POSSESSED ONLY BY THE APPROPRIATE UNITED STATES COURT
OF APPEALS.  28 U.S.C. 1291.  MOREOVER, WE HAVE HELD THAT WHEN, AS
HERE, A THREE-JUDGE COURT DISSOLVES ITSELF FOR WANT OF JURISDICTION, AN
APPEAL LIES TO THE APPROPRIATE COURT OF APPEALS AND NOT TO THIS COURT. 
WILSON V. PORT LAVACA, 391 U.S. 353.  /1/ 

ALTHOUGH THE APPELLANTS HAVE LODGED IN THE COURT OF APPEALS FOR THE
NINTH CIRCUIT A PROTECTIVE APPEAL FROM THE DECISION OF THE SINGLE
JUDGE, IT DOES NOT APPEAR FROM THE RECORD THAT SUCH AN APPEAL HAS BEEN
FILED WITH RESPECT TO THE THREE-JUDGE ORDER.  THEREFORE, WE VACATE THE
ORDER OF THE THREE-JUDGE COURT AND REMAND THE CASE TO THE DISTRICT
COURT SO THAT A TIMELY APPEAL MAY BE TAKEN TO THE COURT OF APPEALS. 
SEE WILSON V. PORT LAVACA, SUPRA; UTILITY COMM'N V. PENNSYLVANIA R.
CO., 382 U.S. 281, 282.  THE APPEAL FROM THE DECISION OF THE SINGLE
JUDGE IS DISMISSED FOR WANT OF JURISDICTION. 

   IT IS SO ORDERED. 

/1/  WE THINK IT MAKES NO DIFFERENCE IN PRINCIPLE THAT IN WILSON V.
PORT LAVACA THE SINGLE JUDGE ACTUALLY ADOPTED THE OPINION OF THE THREE
JUDGE COURT AS HIS OWN. 

MARGUERITE RAWALT FOR APPELLANTS. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND EDWARD M.
BELASCO, JAY L. LINDERMAN, AND WILLIAM L. ZESSAR, DEPUTY ATTORNEYS
GENERAL, FOR APPELLEES. 
..END :












OVERTON V. NEW YORK, 393 U.S. 85 


       OVERTON V. NEW YORK. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS

           OF NEW YORK. 

        NO. 212.  DECIDED OCTOBER 28, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF
THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK IS VACATED, AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN THE LIGHT OF BUMPER V.
NORTH CAROLINA, 391 U.S. 543 (1968). 

MR. JUSTICE BLACK DISSENTS AND WOULD AFFIRM THE JUDGMENT OF
CONVICTION HERE. 

MELVIN L. WULF AND DAVID C. GILBERG FOR PETITIONER. 

CARL A. VERGARI AND JAMES J. DUGGAN FOR RESPONDENT. 
..END :




LICHTEN V. TEXAS, 393 U.S. 86 


       LICHTEN ET AL. V. TEXAS. 

        APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

        NO. 414.  DECIDED OCTOBER 28, 1968. 


434 S.W.2D 128, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND THE CASE SET FOR ARGUMENT. 

CHRIS DIXIE FOR APPELLANTS. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, A. J. CARUBBI, JR., EXECUTIVE ASSISTANT
ATTORNEY GENERAL, AND HAWTHORNE PHIOOIPS, GILBERT J. PENA, AND ALLO B.
CROW, JR., ASSISTANT ATTORNEYS GENERAL, FOR APPELLEE. 
..END :





FPC V. UNITED GAS PIPE LINE CO., 393 U.S. 71 


       FEDERAL POWER COMMISSION V. UNITED GAS PIPE LINE CO.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

        NO. 247.  DECIDED OCTOBER 21, 1968.  /0/ 


THIS COURT PREVIOUSLY SUSTAINED THE FORMULA OF THE FEDERAL POWER
COMMISSION (FPC) FOR DETERMINING THE TAX COMPONENT OF RESPONDENT'S COST
OF SERVICE BUT REMANDED THE CASES (386 U.S. 237) WITH RESPECT TO
WHETHER IT WAS SIGNIFICANT IN APPLYING THE FORMULA THAT RESPONDENT HAD
BOTH JURISDICTIONAL AND NONJURISDICTIONAL INCOME.  THE COURT OF APPEALS
HELD THAT THE ISSUE HAD BEEN SUFFICIENTLY RAISED BY RESPONDENT'S
PETITION FOR REHEARING BEFORE THE FPC AND THAT THE FORMULA REQUIRED
THAT CONSOLIDATED TAX SAVINGS BE FIRST ALLOCATED TO RESPONDENT'S
NONJURISDICTIONAL INCOME.  HELD:  SINCE THE FPC DID NOT DISCLOSE THE
BASIS FOR ITS ORDER AND DID NOT "GIVE CLEAR INDICATION THAT IT HAS
EXERCISED THE DISCRETION WITH WHICH CONGRESS HAS EMPOWERED IT," PHELPS
DODGE CORP. V. NLRB, 313 U.S. 177, 197, THE CASES WERE NOT IN THE
PROPER POSTURE FOR JUDICIAL REVIEW AND SHOULD HAVE BEEN REMANDED TO THE
FPC FOR FURTHER CONSIDERATION. 

CERTIORARI GRANTED; 388 F.2D 385, REVERSED AND REMANDED. 

PER CURIAM. 

WHEN THESE CASES WERE HERE THE FIRST TIME, WE SUSTAINED THE
AUTHORITY OF THE FEDERAL POWER COMMISSION TO DETERMINE THE TAX
COMPONENT OF UNITED'S COST OF SERVICE IN ACCORDANCE WITH THE FORMULA
DEVELOPED BY IT IN CITIES SERVICE GAS CO., 30 F.P.C. 158 (1963), BUT
REMANDED THE CASES WITH RESPECT TO WHETHER IN APPLYING THE CITIES
SERVICE FORMULA IT WAS SIGNIFICANT THAT UNITED APPARENTLY HAD BOTH
JURISDICTIONAL AND NONJURISDICTIONAL ACTIVITIES AND INCOME.  FPC V.
UNITED GAS PIPE LINE CO., 386 U.S. 237 (1967).  OVER THE OBJECTIONS OF
THE COMMISSION, THE COURT OF APPEALS HELD THAT THE ISSUE HAD BEEN
SUFFICIENTLY RAISED BY UNITED IN ITS PETITION FOR REHEARING BEFORE THE
COMMISSION IN ACCORDANCE WITH SEC. 19 OF THE NATURAL GAS ACT, 52 STAT.
831, AS AMENDED, 15 U.S.C. SEC. 717R, AND THAT THE CITIES SERVICE
FORMULA REQUIRED THAT CONSOLIDATED RETURN TAX SAVINGS COMING TO UNITED
BE FIRST ALLOCATED TO UNITED'S NONJURISDICTIONAL INCOME. 

THE PETITIONS FOR CERTIORARI ARE GRANTED AND THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED.  /1/  ALTHOUGH WE ACQUIESCE IN THE COURT
OF APPEALS' CONSTRUCTION OF UNITED'S PETITION FOR REHEARING FILED WITH
THE COMMISSION, THE ISSUE ON REMAND WAS NOT IN THE PROPER POSTURE FOR
FINAL DETERMINATION BY THE COURT OF APPEALS AND SHOULD HAVE BEEN
REMANDED TO THE COMMISSION FOR FURTHER CONSIDERATION.  IT IS TRUE THAT
THE COMMISSION IN ITS OPINION HAD REMARKED THAT "UNITED IS LARGELY A
REGULATED COMPANY, AND WE SHALL DESIGNATE IT AS SUCH FOR THE PURPOSE OF
THESE COMPUTATIONS."  UNITED GAS PIPE LINE CO., 31 F.P.C. 1180, 1190
(1964).  BUT THE COMMISSION MADE NO EFFORT TO JUSTIFY THIS
CHARACTERIZATION OF UNITED IN TERMS OF THE FINDINGS, THE FUNDAMENTALS
OF THE CITIES SERVICE FORMULA, OR THE APPLICABLE LAW.  THIS MAY HAVE
BEEN BECAUSE THE ADVERSARY PROCEEDINGS WERE PRIMARILY CONCERNED WITH
THE VALIDITY OF THE FORMULA ITSELF AND NEVER FOCUSED PRECISELY ON THE
QUESTION OF INTRA-COMPANY REVENUE AND COST ALLOCATION.  WHATEVER THE
REASON, THERE WAS "NO INDICATION OF THE BASIS ON WHICH THE COMMISSION
EXERCISED ITS EXPERT DISCRETION," NO ARTICULATION OF "ANY RATIONAL
CONNECTION BETWEEN THE FACTS FOUND AND THE CHOICE MADE."  BURLINGTON
TRUCK LINES, INC. V. UNITED STATES, 371 U.S. 156, 167, 168 (1962).  ON
THIS ISSUE THE COMMISSION'S ORDER WAS VULNERABLE ON REHEARING AND IN
THE COURT OF APPEALS. 

BUT IT DOES NOT FOLLOW THAT THE COURT OF APPEALS, IN THE FACE OF THE
COMMISSION'S INSISTENCE THAT ITS DECISION WAS WHOLLY CONSISTENT WITH
ITS CITIES SERVICE FORMULA, SHOULD HAVE ITSELF DETERMINED THAT
CONSOLIDATED RETURN SAVINGS BE FIRST ALLOCATED TO NONJURISDICTIONAL
INCOME AND THAT "INCOME FROM THE UNREGULATED COMPONENT OF UNITED IS
SUFFICIENTLY LARGE TO ABSORB ALL SUCH NET TAX LOSSES AND NO EXCESS
REMAINS TO REDUCE THE REGULATED TAXABLE INCOME OF UNITED."  UNITED GAS
PIPE LINE CO. V. FPC, 388 F.2D 385, 391-392 (C.A. 5TH CIR. 1968)
(FOOTNOTE OMITTED).  THESE QUESTIONS SHOULD HAVE HAD ADEQUATE ATTENTION
FROM THE COMMISSION IN THE FIRST INSTANCE BEFORE BEING SUBJECTED TO
JUDICIAL REVIEW.  BEFORE THE COURTS CAN PROPERLY REVIEW AGENCY ACTION,
THE AGENCY MUST DISCLOSE THE BASIS OF ITS ORDER AND "GIVE CLEAR
INDICATION THAT IT HAS EXERCISED THE DISCRETION WITH WHICH CONGRESS HAS
EMPOWERED IT," PHELPS DODGE CORP. V. NLRB, 313 U.S. 177, 197 (1941);
OTHERWISE THE COURTS ARE PROPELLED "INTO THE DOMAIN WHICH CONGRESS HAS
SET ASIDE EXCLUSIVELY FOR THE ADMINISTRATIVE AGENCY."  SEC V. CHENERY
CORP., 332 U.S. 194, 196 (1947).  THE JUDGMENT OF THE COURT OF APPEALS
IS REVERSED AND THE CASES ARE REMANDED WITH INSTRUCTIONS TO RETURN THE
CASES TO THE COMMISSION FOR FURTHER PROCEEDINGS. 

             IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 248, MEMPHIS LIGHT, GAS & WATER DIVISION V.
UNITED GAS PIPE LINE CO., ALSO ON PETITION FOR WRIT OF CERTIORARI TO
THE SAME COURT. 

/1/  THE MOTION FOR LEAVE TO USE THE RECORD IN THE PRIOR PROCEEDINGS
BEFORE THIS COURT, NOS. 127 AND 128, OCTOBER TERM, 1966, IS GRANTED. 

MR. JUSTICE FORTAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

SOLICITOR GENERAL GRISWOLD, HARRIS WEINSTEIN, RICHARD A. SOLOMON,
AND PETER H. SCHIFF FOR PETITION IN NO. 247.  REUBEN GOLDBERT AND
GEORGE E. MOAROW FOR PETITIONER IN NO. 248. 

DAVID T. SEARLS AND VERNON W. WOODS FOR RESPONDENT IN BOTH CASES. 
..END :














INTERNATIONAL CO. V. NEDERL. AMERIK, 393 U.S. 74 


       INTERNATIONAL TERMINAL OPERATING CO., INC. V. N.V.

           NEDERL.  AMERIK STOOMV.  MAATS. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

     COURT OF APPEALS FOR THE SECOND CIRCUIT. 

NO. 379.  DECIDED OCTOBER 21, 1968. 


RESPONDENT, A SHIPOWNER, SOUGHT INDEMNITY FROM PETITIONER, A
STEVEDORING COMPANY, FOR DAMAGES RESPONDENT HAD PAID PETITIONER'S
EMPLOYEE, WHO HAD BEEN INJURED WHILE WORKING ON RESPONDENT'S SHIP.  THE
COURT OF APPEALS REVERSED THE JURY'S VERDICT FOR PETITIONER ON THE
GROUND THAT AS A MATTER OF LAW PETITIONER HAD NOT TAKEN REASONABLE
ACTION TO AVOID THE INJURY.  HELD:  UNDER THE SEVENTH AMENDMENT THE
ISSUE AS TO THE REASONABLENESS OF PETITIONER'S CONDUCT SHOULD HAVE BEEN
LEFT TO THE JURY.  ATLANTIC & GULF STEVEDORES, INC. V. ELLERMAN LINES,
LTD., 369 U.S. 355 (1962). 

CERTIORARI GRANTED; 392 F.2D 763, REVERSED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED. 

THE RESPONDENT, A SHIPOWNER, SOUGHT INDEMNITY FROM THE PETITIONER, A
STEVEDORING COMPANY, FOR DAMAGES THE SHIPOWNER HAD PAID TO AN EMPLOYEE
OF THE SETEVDORE WHO WAS INJURED WHILE WORKING ABOARD THE RESPONDENT'S
SHIP.  SEE ALBANESE V. N.V. NEDERL.  AMERIK STOOMV.  MOATS., 382 U.S.
283 (1965).  A JURY FOUND THAT THE STEVEDORING COMPANY HAD FULFILLED
ITS DUTY OF WORKMANLIKE SERVICE AND, ACCORDINGLY, THAT NO INDEMNITY WAS
DUE.  SEE RYAN STEVEDORING CO. V. PAN-ATLANTIC S.S. CORP., 350 U.S. 124
(1956).  THE COURT OF APPEALS REVERSED THIS VERDICT AND HELD, AS A
MATTER OF LAW, THAT THE STEVEDORE HAD NOT TAKEN REASONABLE ACTION TO
AVERT THE INJURY.  392 F.2D 763 (1968). 

THE CAUSE OF THE LONGSHOREMAN'S INJURY WAS CARBON MONOXIDE
INHALATION THAT OCCURRED AS HE AND OTHER LONGSHOREMEN WERE USING
GASOLINE-POWERED VEHICLES TO MOVE CARGO IN THE SHIP'S LOWER HOLD.  THE
SHIPOWNER CONTENDS THAT THE STEVEDORE'S HATCH BOSS ACTED UNREASONABLY. 
WHEN LONGSHOREMEN COMPLAINED ABOUT THE LACK OF VENTILATION IN THE HOLD,
THE HATCH BOSS INFORMED ONE OF THE SHIP'S OFFICERS THAT HIS MEN WOULD
WALK OFF THE JOB UNLESS THE OFFICER TURNED ON THE SHIP'S VENTILATING
SYSTEM.  THE OFFICER TOLD THE MEN TO CONTINUE WORKING AND PROMISED TO
ACTIVATE THE VENTILATING SYSTEM, WHICH WAS WITHIN THE SHIPOWNER'S
EXCLUSIVE CONTROL AND WHICH WAS CONCEDEDLY ADEQUATE TO VENTILATE THE
HOLD.  WHEN, LESS THAN 10 MINUTES LATER, THE HATCH BOSS REALIZED THAT
THE VENTILATING SYSTEM HAD NOT BEEN TURNED ON, HE ORDERED THE MEN FROM
THE HOLD.  THE INJURED LONGSHOREMAN COLLAPSED AS HE WAS ASCENDING A
LADDER TO LEAVE. 

THE COURT OF APPEALS SAID THAT THE HATCH BOSS SHOULD HAVE CEASED
WORK WHEN HE FIRST LEARNED THAT THE SHIP'S VENTILATING SYSTEM WAS NOT
OPERATING, DESPITE THE OFFICER'S PROMISE TO TURN ON THE SYSTEM. 
ALTERNATIVELY, HE SHOULD HAVE USED THE STEVEDORE'S BLOWERS, WHICH HAD
BEEN LEFT ON THE PIER, TO VENTILATE THE HOLD.  THE JURY, HOWEVER, IN
RESPONSE TO A SPECIAL INTERROGATORY, FOUND THAT THE STEVEDORE HAD ACTED
REASONABLY IN CONTINUING TO WORK FOR A BRIEF PERIOD IN RELIANCE ON THE
OFFICER'S PROMISE.  WE CANNOT AGREE WITH THE COURT OF APPEALS THAT THE
STEVEDORE ACTED UNREASONABLY AS A MATTER OF LAW.  UNDER THE SEVENTH
AMENDMENT, THAT ISSUE SHOULD HAVE BEEN LEFT TO THE JURY'S
DETERMINATION.  ANY OTHER RULING WOULD BE INCONSISTENT WITH THIS
COURT'S DECISION IN ATLANTIC & GULF STEVEDORES, INC. V. ELLERMAN LINES,
LTD., 369 U.S. 355 (1962). 

THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

SIDNEY A. SCHWARTZ FOR PETITIONER. 

EDMUND F. LAMB FOR RESPONDENT. 
..END :



















IN RE HAGOPIAN, 393 U.S. 76 


       IN RE HAGOPIAN. 

        APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

        NO. 352.  DECIDED OCTOBER 21, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE AN AMENDED JURISDICTIONAL STATEMENT IS
GRANTED.  THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING
THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :













BOUNDS V. CRAWFORD, 393 U.S. 76 


       BOUNDS, WARDEN V. CRAWFORD. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

        NO. 279.  DECIDED OCTOBER 21, 1968. 


CERTIORARI GRANTED; 395 F.2D 297, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION OF THE RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
CONSIDERATION IN LIGHT OF WITHERSPOON V. ILLINOIS, 391 U.S. 510, AND
FOR CONSIDERATION OF THE OTHER CONSTITUTIONAL QUESTIONS RAISED IN THE
CASE. 

MR. JUSTICE BLACK DISSENTS. 

THOMAS WADE BRUTON, ATTORNEY GENERAL OF NORTH CAROLINA, AND ANDREW
A. VANORE, JR., FOR PETITIONER. 
..END :




DYMYTRYSHYN V. ESPERDY, 393 U.S. 77 


       DYMYTRYSHYN ET AL. V. ESPERDY, DISTRICT DIRECTOR,

           IMMIGRATION AND NATURALIZATION SERVICE. 

   APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

         SOUTHERN DISTRICT OF NEW NEW YORK. 

        NO. 380.  DECIDED OCTOBER 21, 1968. 


285 F.SUPP.  507, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

JOHN J. ABT FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, AND
PHILIP R. MONAHAN FOR APPELLEE. 
..END :






LAKE V. POTOMAC LIGHT & POWER CO., 393 U.S. 77 


       LAKE ET VIR V. POTOMAC LIGHT & POWER CO.

APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

        NO. 364.  DECIDED OCTOBER 21, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














CHEMICAL TANK LINES, INC. V. HOLSTINE, 393 U.S. 78 


       CHEMICAL TANK LINES, INC. V. HOLSTINE. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

        NO. 195.  DECIDED OCTOBER 21, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK DISSENTS. 

J. CAMPBELL PALMER III AND ALBERT L. BASES FOR APPELLANT. 

ROBERT H. C. KAY AND STANLEY E. PREISER FOR APPELLEE. 
..END :








CONTINENTAL OIL CO. V. UNITED STATES, 393 U.S. 79 


       CONTINENTAL OIL CO. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

    DISTRICT OF NEW MEXICO. 

        NO. 206.  DECIDED OCTOBER 21, 1968. 


AFFIRMED. 

PER CURIAM. 

BEING CONVINCED ON THE RECORD BEFORE US THAT MEXICO REFINERIES,
INC., WAS NOT A "FAILING COMPANY," UNITED STATES V. THIRD NATIONAL
BANK, 390 U.S. 171, 183 (1968); INTERNATIONAL SHOE CO. V. FTC, 280 U.S.
291 (1930), AND THAT THE RECORD OTHERWISE SUPPORTS THE DECREE, UNITED
STATES V. PABST BREWING CO., 384 U.S. 546 (1966), WE AFFIRM THE
JUDGMENT OF THE DISTRICT COURT. 

MR. JUSTICE HARLAN, BELIEVING THAT THIS CASE INVOLVES ISSUES OF FACT
AND LAW WHICH SHOULD NOT BE DECIDED WITHOUT PLENARY CONSIDERATION,
WOULD NOTE PROBABLE JURISDICTION AND SET THE CASE FOR ARGUMENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

DAVID T. SEARLS, HARRY M. REASONER, AND LLOYD F. THANHOUSER FOR
APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL ZIMMERMAN,
AND LAWRENCE W. SOMERVILLE FOR THE UNITED STATES. 
..END :


















WILLIAMS V. RHODES, 393 U.S. 23 


       WILLIAMS ET AL. V. RHODES, GOVERNOR OF OHIO, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF OHIO. 

        NO. 543.  ARGUED OCTOBER 7, 1968.-- DECIDED OCTOBER 15,

    1968.  /0/ 


UNDER THE OHIO ELECTION LAWS A NEW POLITICAL PARTY SEEKING BALLOT
POSITION IN PRESIDENTIAL ELECTIONS MUST OBTAIN PETITIONS SIGNED BY
QUALIFIED ELECTORS TOTALING 15% OF THE NUMBER OF BALLOTS CAST IN THE
LAST GUBERNATORIAL ELECTION AND MUST FILE THESE PETITIONS EARLY IN
FEBRUARY OF THE ELECTION YEAR.  THESE REQUIREMENTS AND OTHER
RESTRICTIVE STATUTORY PROVISIONS VIRTUALLY PRECLUDE A NEW PARTY'S
QUALIFYING FOR BALLOT POSITION AND NO PROVISION EXISTS FOR INDEPENDENT
CANDIDATES DOING SO.  THE REPUBLICAN AND DEMOCRATIC PARTIES MAY RETAIN
THEIR BALLOT POSITIONS BY POLLING 10% OF THE VOTES IN THE LAST
GUBERNATORIAL ELECTION AND NEED NOT OBTAIN SIGNATURE PETITIONS.  THE
OHIO AMERICAN INDEPENDENT PARTY (AN APPELLANT IN NO. 543), WAS FORMED
IN JANUARY 1968, AND DURING THE NEXT SIX MONTHS BY SECURING OVER
450,000 SIGNATURES EXCEEDED THE 15% REQUIREMENT BUT WAS DENIED BALLOT
POSITION BECAUSE THE FEBRUARY DEADLINE HAD EXPIRED.  THE SOCIALIST
LABOR PARTY (AN APPELLANT IN NO. 544), AN OLD PARTY WITH A SMALL
MEMBERSHIP, COULD NOT MEET THE 15% REQUIREMENT.  BOTH PARTIES BROUGHT
ACTIONS CHALLENGING THE OHIO ELECTION LAWS AS VIOLATING THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  A THREE-JUDGE DISTRICT
COURT HELD THOSE LAWS UNCONSTITUTIONAL AND RULED THAT THE PARTIES WERE
ENTITLED TO WRITE-IN SPACE BUT NOT BALLOT POSITION.  THE PARTIES
APPEALED TO THIS COURT.  THE INDEPENDENT PARTY IMMEDIATELY SOUGHT
INTERLOCUTORY RELIEF FROM MR. JUSTICE STEWART, WHICH HE GRANTED BY
ORDER AFTER A HEARING AT WHICH OHIO REPRESENTED THAT IT COULD PLACE THE
PARTY'S NAME ON THE BALLOT WITHOUT DISRUPTING THE ELECTION IF THERE WAS
NOT A LONG DELAY.  SEVERAL DAYS AFTER THAT ORDER THE SOCIALIST LABOR
PARTY SOUGHT A STAY WHICH HE DENIED BECAUSE OF THAT PARTY'S FAILURE TO
MOVE QUICKLY FOR RELIEF, THE STATE HAVING REPRESENTED THAT AT THAT TIME
THE GRANTING OF RELIEF WOULD DISRUPT THE ELECTION.  HELD: 

1.  THE CONTROVERSY IN THESE CASES IS JUSTICIABLE.  P. 28. 

2.  STATE LAWS ENACTED PURSUANT TO ART. II, SEC. 1, OF THE
CONSTITUTION TO REGULATE THE SELECTION OF ELECTORS MUST MEET THE
REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 28-29. 

3.  OHIO'S RESTRICTIVE ELECTION LAWS TAKEN AS A WHOLE ARE
INVIDIOUSLY DISCRIMINATORY AND VIOLATE THE EQUAL PROTECTION CLAUSE
BECAUSE THEY GIVE THE TWO OLD, ESTABLISHED PARTIES A DECIDED ADVANTAGE
OVER NEW PARTIES.  PP. 30-34. 

(A) THE STATE LAWS HERE INVOLVED HEAVILY BURDEN THE RIGHT OF
INDIVIDUALS TO ASSOCIATE FOR THE ADVANCEMENT OF POLITICAL BELIEFS AND
THE RIGHT OF QUALIFIED VOTERS TO CASE THEIR VOTES EFFECTIVELY.  PP. 30
31. 

(B) THE STATE HAS SHOWN NO "COMPELLING INTEREST" JUSTIFYING THOSE
BURDENS.  PP. 31-32. 

4.  UNDER THE CIRCUMSTANCES HERE OHIO MUST ALLOW THE INDEPENDENT
PARTY AND ITS CANDIDATES FOR PRESIDENT AND VICE PRESIDENT TO REMAIN ON
THE BALLOT, SUBJECT TO COMPLIANCE WITH VALID STATE LAWS.  OHIO IS NOT
AT THIS LATE DATE REQUIRED TO PLACE FOR SOCIALIST LABOR PARTY ON THE
BALLOT FOR THE COMING ELECTION.  PP. 34-35. 

290 F.SUPP.  983, NO. 543, MODIFIED; NO. 544, AFFIRMED. 

MR. JUSTICE DELIVERED THE OPINION OF THE COURT. 

THE STATE OF OHIO IN A SERIES OF ELECTION 6AWS HAS MADE IT VIRTUALLY
IMPOSSIBLE FOR A NEW POLITICAL PARTY, EVEN THOUGH IT HAS HUNDREDS OF
THOUSANDS OF MEMBERS, OR AN OLD PARTY, WHICH HAS A VERY SMALL NUMBER OF
MEMBERS, TO BE PLACED ON THE STATE BALLOT TO CHOOSE ELECTORS PLEDGED TO
PARTICULAR CANDIDATES FOR THE PRESIDENCY AND VICE PRESIDENCY OF THE
UNITED STATES. 

OHIO REVISED CODE, SEC. 3517.01, REQUIRES A NEW PARTY TO OBTAIN
PETITIONS SIGNED BY QUALIFIED ELECTORS TOTALING 15% OF THE NUMBER OF
BALLOTS CAST IN THE LAST PRECEDING GUBERNATORIAL ELECTION.  THE
DETAILED PROVISIONS OF OTHER OHIO ELECTION LAWS RESULT IN THE
IMPOSITION OF SUBSTANTIAL ADDITIONAL BURDENS, WHICH WERE ACCURATELY
SUMMARIZED IN JUDGE KINNEARY'S DISSENTING OPINION IN THE COURT BELOW
AND WERE SUBSTANTIALLY AGREED ON BY THE OTHER MEMBERS OF THAT COURT. 
/1/  TOGETHER THESE VARIOUS RESTRICTIVE PROVISIONS MAKE IT VIRTUALLY
IMPOSSIBLE FOR ANY PARTY TO QUALIFY ON THE BALLOT EXCEPT THE REPUBLICAN
AND DEMOCRATIC PARTIES.  THESE TWO PARTIES FACE SUBSTANTIALLY SMALLER
BURDENS BECAUSE THEY ARE ALLOWED TO RETAIN THEIR POSITIONS ON THE
BALLOT SIMPLY BY OBTAINING 10% OF THE VOTES IN THE LAST GUBERNATORIAL
ELECTION AND NEED NOT OBTAIN ANY SIGNATURE PETITIONS.  MOREOVER, OHIO
LAWS MAKE NO PROVISION FOR BALLOT POSITION FOR INDEPENDENT CANDIDATES
AS DISTINGUISHED FROM POLITICAL PARTIES.  THE STATE OF OHIO CLAIMS THE
POWER TO KEEP MINORITY PARTIES AND INDEPENDENT CANDIDATES OFF THE
BALLOT UNDER ART. II, SEC. 1, OF THE CONSTITUTION, WHICH PROVIDES
THAT: 

     "EACH STATE SHALL APPOINT, IN SUCH MANNER AS THE LEGISLATURE

  THEREOF MAY DIRECT, A NUMBER OF ELECTORS, EQUAL TO THE WHOLE

  NUMBER OF SENATORS AND REPRESENTATIVES TO WHICH THE STATE MAY BE

  ENTITLED IN THE CONGRESS.  . . . " 

THE OHIO AMERICAN INDEPENDENT PARTY, AN APPELLANT IN NO. 543, AND
THE SOCIALIST LABOR PARTY, AN APPELLANT IN NO. 544, BOTH BROUGHT SUIT
TO CHALLENGE THE VALIDITY OF THESE OHIO LAWS AS APPLIED TO THEM, ON THE
GROUND THAT THEY DENY THESE PARTIES AND THE VOTERS WHO MIGHT WISH TO
VOTE FOR THEM THE EQUAL PROTECTION OF THE LAWS, GUARANTEED AGAINST
STATE ABRIDGMENT BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE THREE-JUDGE DISTRICT COURT DESIGNATED TO TRY THE CASE
RULED THESE RESTRICTIVE OHIO ELECTION LAWS UNCONSTITUTIONAL BUT REFUSED
TO GRANT THE PARTIES THE FULL RELIEF THEY HAD SOUGHT, 290 F.SUPP.  983
(D.C.S.D. OHIO 1968), AND BOTH PARTIES HAVE APPEALED TO THIS COURT. 
THE CASES AROSE IN THIS WAY: 

THE OHIO AMERICAN INDEPENDENT PARTY WAS FORMED IN JANUARY 1968 BY
OHIO PARTISANS OF FORMER GOVERNOR GEORGE C. WALLACE OF ALABAMA.  DURING
THE FOLLOWING SIX MONTHS A CAMPAIGN WAS CONDUCTED FOR OBTAINING
SIGNATURES ON PETITIONS TO GIVE THE PARTY A PLACE ON THE BALLOT AND
OVER 450,000 SIGNATURES WERE EVENTUALLY OBTAINED, MORE THAN THE 433,100
REQUIRED.  THE STATE CONTENDS AND THE INDEPENDENT PARTY AGREES THAT DUE
TO THE INTERACTION OF SEVERAL PROVISIONS OF THE OHIO LAWS, SUCH
PETITIONS WERE REQUIRED TO BE FILED BY FEBRUARY 7, 1968, AND SO THE
SECRETARY OF THE STATE OF OHIO INFORMED THE PARTY THAT IT WOULD NOT BE
GIVEN A PLACE ON THE BALLOT.  NEITHER IN THE PLEADINGS, THE AFFIDAVITS
BEFORE THE DISTRICT COURT, THE ARGUMENTS THERE, NOR IN OUR COURT HAS
THE STATE DENIED THAT THE PETITIONS WERE SIGNED BY ENOUGH QUALIFIED
ELECTORS OF OHIO TO MEET THE 15% REQUIREMENT UNDER OHIO LAW.  HAVING
DEMONSTRATED ITS NUMERICAL STRENGTH, THE INDEPENDENT PARTY ARGUED THAT
THIS AND THE OTHER BURDENS, INCLUDING THE EARLY DEADLINE FOR FILING
PETITIONS AND THE REQUIREMENT OF A PRIMARY ELECTION CONFORMING TO
DETAILED AND RIGOROUS STANDARDS, DENIED THE PARTY AND CERTAIN OHIO
VOTERS EQUAL PROTECTION OF THE LAWS.  THE THREE-JUDGE DISTRICT COURT
UNANIMOUSLY AGREED WITH THIS CONTENTION AND RULED THAT THE STATE MUST
BE REQUIRED TO PROVIDE A SPACE FOR WRITE-IN VOTES.  A MAJORITY OF THE
DISTRICT COURT REFUSED TO HOLD, HOWEVER, THAT THE PARTY'S NAME MUST BE
PRINTED ON THE BALLOT, ON THE GROUND THAT WALLACE AND HIS ADHERENTS HAD
BEEN GUILTY OF "LACHES" BY FILING THEIR SUIT TOO LATE TO ALLOW THE OHIO
LEGISLATURE AN OPPORTUNITY TO REMEDY, IN TIME FOR THE PRESIDENTIAL
BALLOTING, THE DEFECTS WHICH THE DISTRICT COURT HELD THE LAW
POSSESSED.  THE APPELLANTS IN NO. 543 THEN MOVED BEFORE MR. JUSTICE
STEWART, CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT, FOR AN INJUNCTION WHICH
WOULD ORDER THE PARTY'S CANDIDATES TO BE PUT ON THE BALLOT PENDING
APPEAL.  AFTER CONSULTING WITH THE OTHER MEMBERS OF THE COURT WHO WERE
AVAILABLE, AND AFTER THE STATE REPRESENTED THAT THE GRANT OF
INTERLOCUTORY RELIEF WOULD BE IN THE INTERESTS OF THE EFFICIENT
OPERATION OF THE ELECTORAL MACHINERY IF THIS COURT CONSIDERED THE
CHANCES OF SUCCESSFUL CHALLENGE TO THE OHIO STATUTES GOOD, MR. JUSTICE
STEWART GRANTED THE INJUNCTION. 

THE SOCIALIST LABOR PARTY, AN APPELLANT IN NO. 544, HAS ALL THE
FORMAL ATTRIBUTES OF A REGULAR PARTY.  IT HAS CONVENTIONS AND A STATE
EXECUTIVE COMMITTEE AS REQUIRED BY THE OHIO LAW, AND IT WAS PERMITTED
TO HAVE A PLACE ON THE BALLOT UNITL 1948.  SINCE THEN, HOWEVER, IT HAS
NOT FILED PETITIONS WITH THE TOTAL SIGNATURES REQUIRED UNDER NEW OHIO
LAWS FOR BALLOT POSITION, AND INDEED IT CONCEDED IT COULD NOT DO SO
THIS YEAR.  THE SAME THREE-JUDGE PANEL HEARD THE PARTY'S SUIT AND
REACHED A SIMILAR RESULT-- WRITE-IN SPACE WAS ORDERED BUT BALLOT
POSITION WAS DENIED THE SOCIALIST LABOR PARTY.  IN THIS CASE THE
DISTRICT COURT ASSIGNED BOTH THE PARTY'S SMALL MEMBERSHIP OF 108 AND
ITS DELAY IN BRINGING SUIT AS REASONS FOR REFUSING TO ORDER MORE
COMPLETE RELIEF FOR THE 1968 ELECTION.  A MOTION TO STAY THE DISTRICT
COURT'S JUDGMENT WAS PRESENTED TO MR. JUSTICE STEWART SEVERAL DAYS
AFTER HE HAD ORDERED SIMILAR RELIEF IN THE INDEPENDENT PARTY CASE.  THE
MOTION WAS DENIED PRINCIPALLY BECAUSE OF THE SOCIALIST PARTY'S FAILURE
TO MOVE QUICKLY TO OBTAIN RELIEF, WITH THE CONSEQUENT CONFUSION THAT
WOULD BE CAUSED BY REQUIRING ITS ELECTION BALLOTS, BUT THE CASE WAS SET
BY THIS COURT FOR ORAL ARGUMENT, ALONG WITH THE INDEPENDENT PARTY
CASE. 

    I. 

OHIO'S CLAIM THAT THE POLITICAL-QUESTION DOCTRINE PRECLUDED JUDICIAL
CONSIDERATION OF THESE CASES REQUIRES VERY LITTLE DISCUSSION.  THAT
CLAIM HAS BEEN REJECTED IN CASES OF THIS KIND NUMEROUS TIMES.  IT WAS
REJECTED BY THE COURT UNANIMOUSLY IN 1892 IN THE CASE OF MCPHERSON V.
BLACKER, 146 U.S. 1, 23-24, AND MORE RECENTLY IT HAS BEEN SQUARELY
REJECTED IN BAKER V. CARR, 369 U.S. 186, 208-237 (1962), AND IN
WESBERRY V. SANDERS, 376 U.S. 1, 5-7 (1964).  OTHER CASES TO THE SAME
EFFECT NEED NOT NOW BE CITED.  THESE CASES DO RAISE A JUSTICIABLE
CONTROVERSY UNDER THE CONSTITUTION AND CANNOT BE RELEGATED TO THE
POLITICAL ARENA. 

        II. 

THE STATE ALSO CONTENDS THAT IT HAS ABSOLUTE POWER TO PUT ANY
BURDENS IT PLEASES ON THE SELECTION OF ELECTORS BECAUSE OF THE FIRST
STATE SHALL APPOINT, IN SUCH MANNER AS THE LEGISLATURE THEREOF MAY
DIRECT, A NUMBER OF ELECTORS . . . " TO CHOOSE A PRESIDENT AND VICE
PRESIDENT.  THERE, OF COURSE, CAN BE NO QUESTION BUT THAT THIS SECTION
DOES GRANT EXTENSIVE POWER TO THE STATES TO PASS LAWS REGULATING THE
SELECTION OF ELECTORS.  BUT THE CONSTITUTION IS FILLED WITH PROVISIONS
THAT GRANT CONGRESS OR THE STATES SPECIFIC POWER TO LEGISLATE IN
CERTAIN AREAS; THESE GRANTED POWERS ARE ALWAYS SUBJECT TO THE
LIMITATION THAT THEY MAY NOT BE EXERCISED IN A WAY THAT VIOLATES OTHER
SPECIFIC PROVISIONS OF THE CONSTITUTION.  FOR EXAMPLE, CONGRESS IS
GRANTED BROAD POWER TO "LAY AND COLLECT TAXES,"  /2/  BUT THE TAXING
POWER, BRAOD AS IT IS, MAY NOT BE INVOKED IN SUCH A WAY AS TO VIOLATE
THE PRIVILEGE AGAINST SELF-INCRIMINATION.  /3/  NOR CAN IT BE THOUGHT
THAT THE POWER TO SELECT ELECTORS COULD BE EXERCISED IN SUCH A WAY AS
TO VIOLATE EXPRESS CONSTITUTIONAL COMMANDS THAT SPECIFICALLY BAR STATES
FROM PASSING CERTAIN KINDS OF LAWS.  CLEARLY, THE FIFTEENTH AND
NINETEENTH AMENDMENTS WERE INTENDED TO BAR THE FEDERAL GOVERNMENT AND
THE STATES FROM DENYING THE RIGHT TO VOTE ON GROUNDS OF RACE AND SEX IN
PRESIDENTIAL ELECTIONS.  AND THE TWENTY-FOURTH AMENDMENT CLEARLY AND
LITERALLY BARS ANY STATE FROM IMPOSING A POLL TAX ON THE RIGHT TO VOTE
"FOR ELECTORS FOR PRESIDENT OR VICE PRESIDENT."  OBVIOUSLY WE MUST
REJECT THE NOTION THAT ART. II, SEC. 1, GIVES THE STATES POWER TO
IMPOSE BURDENS ON THE RIGHT TO VOTE, WHERE SUCH BURDENS ARE EXPRESSLY
PROHIBITED IN OTHER CONSTITUTIONAL PROVISIONS.  WE THEREFORE HOLD THAT
NO STATE CAN PASS A LAW REGULATING ELECTIONS THAT VIOLATES THE
FOURTEENTH AMENDMENT'S COMMAND THAT "NO STATE SHALL . . . DENY TO ANY
PERSON . . . THE EQUAL PROTECTION OF THE LAWS." 

        III. 

WE TURN THEN TO THE QUESTION WHETHER THE COURT BELOW PROPERLY HELD
THAT THE OHIO LAWS BEFORE US RESULT IN A DENIAL OF EQUAL PROTECTION OF
THE LAWS.  IT IS TRUE THAT THIS COURT HAS FIRMLY ESTABLISHED THE
PRINCIPLE THAT THE EQUAL PROTECTION CLAUSE DOES NOT MAKE EVERY MINOR
DIFFERENCE IN THE APPLICATION OF LAWS TO DIFFERENT GROUPS A VIOLATION
OF OUR CONSTITUTION.  BUT WE HAVE ALSO HELD MANY TIMES THAT "INVIDIOUS"
DISTINCTIONS CANNOT BE ENACTED WITHOUT A VIOLATION OF THE EQUAL
PROTECTION CLAUSE.  /4/  IN DETERMINING WHETHER OR NOT A STATE LAW
VIOLATES THE EQUAL PROTECTION CLAUSE, WE MUST CONSIDER THE FACTS AND
CIRCUMSTANCES BEHIND THE LAW, THE INTERESTS OF THOSE WHO ARE
DISADVANTAGED BY THE CLASSIFICATION.  /5/  IN THE PRESENT SITUATION THE
STATE LAWS PLACE BURDENS ON TWO DIFFERENT, ALTHOUGH OPERLAPPING, KINDS
OF RIGHTS-- THE RIGHT OF INDIVIDUALS TO ASSOCIATE FOR THE ADVANCEMENT
OF POLITICAL BELIEFS, AND THE RIGHT OF QUALIFIED VOTERS, REGARDLESS OF
THEIR POLITICAL PERSUASION, TO CASE THEIR VOTES EFFECTIVELY.  BOTH OF
THESE RIGHTS, OF COURSE, RANK AMONG OUR MOST PRECIOUS FREEDOMS.  WE
HAVE REPEATEDLY HELD THAT FREEDOM OF ASSOCIATION IS PROTECTED BY THE
FIRST AMENDMENT.  /6/  AND OF COURSE THIS FREEDOM PROTECTED AGAINST
FEDERAL ENCROACHMENT BY THE FIRST AMENDMENT IS ENTITLED UNDER THE
FOURTEENTH AMENDMENT TO THE SAME PROTECTION FROM INFRINGEMENT BY THE
STATES.  /7/  SIMILARLY WE HAVE SAID WITH REFERENCE TO THE RIGHT TO
VOTE:  "NO RIGHT IS MORE PRECIOUS IN A FREE COUNTRY THAN THAT OF HAVING
A VOICE IN THE ELECTION OF THOSE WHO MAKE THE LAWS UNDER WHICH, AS GOOD
CITIZENS, WE MUST LIVE.  OTHER RIGHTS, EVEN THE MOST BASIC, ARE
ILLUSORY IF THE RIGHT TO VOTE IS UNDERMINED."  /8/ 

NO EXTENDED DISCUSSION IS REQUIRED TO ESTABLISH THAT THE OHIO LAWS
BEFORE US GIVE THE TWO OLD, ESTABLISHED PARTIES A DECIDED ADVANTAGE
OVER ANY NEW PARTIES STRUGGLING FOR EXISTENCE AND THUS PLACE
SUBSTANTIALLY UNEQUAL BURDENS ON BOTH THE RIGHT TO VOTE AND THE RIGHT
TO ASSOCIATE.  THE RIGHT TO FORM A PARTY FOR THE ADVANCEMENT OF
POLITICAL GOALS MEANS LITTLE IF A PARTY CAN BE KEPT OFF THE ELECTION
BALLOT AND THUS DENIED AN EQUAL OPPORTUNITY TO WIN VOTES.  SO ALSO, THE
RIGHT TO VOTE IS HEAVILY BURDENED IF THAT VOTE MAY BE CAST ONLY FOR ONE
OF TWO PARTIES AT A TIME WHEN OTHER PARTIES ARE CLAMORING FOR A PLACE
ON THE BALLOT.  IN DETERMINING WHETHER THE STATE HAS POWER TO PLACE
SUCH UNEQUAL BURDENS ON MINORITY GROUPS WHERE RIGHTS OF THIS KIND ARE
AT STAKE, THE DECISIONS OF THIS COURT HAVE CONSISTENTING HELD THAT
"ONLY A COMPELLING STATE INTEREST IN THE REGULATION OF A SUBJECT WIHTIN
THE STATE'S CONSTITUTIONAL POWER TO REGULATE CAN JUSTIFY LIMITING FIRST
AMENDMENT FREEDOMS."  NAACP V. BUTTON, 371 U.S. 415, 438 (1963). 

THE STATE HAS HERE FAILED TO SHOW ANY "COMPELLING INTEREST" WHICH
JUSTIFIES IMPOSING SUCH HEAVY BURDENS ON THE RIGHT TO VOTE AND TO
ASSOCIATE. 

THE STATE ASSERTS THAT THE FOLLOWING INTERESTS ARE SERVED BY THE
RESTRICTIONS IT IMPOSES.  IT CLAIMS THAT THE STATE MAY VALIDLY PROMOTE
A TWO-PARTY SYSTEM IN ORDER TO ENCOURAGE COMPROMISE AND POLITICAL
STABILITY.  THE FACT IS, HOWEVER, THAT THE OHIO SYSTEM DOES NOT MERELY
FAVOR A "TWO-PARTY SYSTEM"; IT FAVORS TWO PARTICULAR PARTIES-- THE
REPUBLICANS AND THE DEMOCRATS-- AND IN EFFECT TENDS TO GIVE THEM A
COMPLETE MONOPOLY.  THERE IS, OF COURSE, NO REASON WHY TWO PARTIES
SHOULD RETAIN A PERMANENT MONOPOLY ON THE RIGHT TO HAVE PEOPEL VOTE FOR
OR AGAINST THEM.  COMPETITION IN IDEANS AND GOVERNMENTAL POLICIES IS AT
THE CORE OF OUR ELECTORAL PROCESS AND OF THE FIRST AMENDMENT FREEDOMS. 
NEW PARTIES STRUGGLING FOR THEIR PLACE MUST HAVE THE TIME AND
OPPORTUNITY TO ORGANIZE IN ORDER TO MEET REASONABLE REQUIREMENTS FOR
BALLOT POSITION, JUST AS THE OLD PARTIES HAVE HAD IN THE PAST. 

OHIO MAKES A VARIETY OF OTHER ARGUMENTS TO SUPPORT ITS VERY
RESTRICTIVE ELECTION LAWS.  IT POINTS OUT, FOR EXAMPLE, THAT IF THREE
OR MORE PARTIES ARE ON THE BALLOT, IT IS POSSIBLE THAT NO ONE PARTY
WOULD OBTAIN 50% OF THE VOTE, AND THE RUNNER-UP MIGHT HAVE BEEN
PREFERRED TO THE PLURALITY WINNER BY A MAJORITY OF THE VOTERS. 
CONCEDEDLY, THE STATE DOES HAVE AN INTEREST IN ATTEMPTING TO SEE THAT
THE ELECTION WINNER BE THE CHOICE OF A MAJORITY OF ITS VOTERS.  BUT TO
GRANT THE STATE POWER TO KEEP ALL POLITICAL PARTIES OFF THE BALLOT
UNTIL THEY HAVE ENOUGH MEMBERS TO WIN WOULD STIFLE THE GROWTH OF ALL
NEW PARTIES WORKING TO INCREASE THEIR STRENGTH FROM YEAR TO YEAR. 
CONSIDERING THESE OHIO LAWS IN THEIR TOTALITY, THIS INTEREST CANNOT
JUSTIFY THE VERY SEVERE RESTRICTIONS ON VOTING AND ASSOCIATIONAL RIGHTS
WHICH OHIO HAS IMPOSED.     THE STATE ALSO ARGUES THAT ITS REQUIREMENT
OF A PARTY STRUCTURE AND AN ORGANIZED PRIMARY INSURES THAT THOSE WHO
DISAGREE WITH THE MAJOR PARTIES AND THEIR POLICIES "WILL BE GIVEN A
CHOICE OF LEADERSHIP AS WELL AS ISSUES" SINCE ANY LEADER WHO ATTEMPTS
TO CAPITALIZE ON THE DISAFFECTION OF SUCH A GROUP IS FORCED TO SUBMIT
TO A PRIMARY IN WHICH OTHER, POSSIBLY MORE ATTRACTIVE, LEADERS CAN
RAISE THE SAME ISSUES AND COMPETE FOR THE ALLEGIANCE OF THE DISAFFECTED
GROUP.  BUT WHILE THIS GOAL MAY BE DESIRABLE, OHIO'S SYSTEM CANNOT
ACHIEVE IT.  SINCE THE PRINCIPAL POLICIES OF THE MAJOR PARTIES CHANGE
TO SOME EXTENT FROM YEAR TO YEAR, AND SINCE THE IDENTITY OF THE LIKELY
MAJOR PARTY NOMINEES MAY NOT BE KNOWN UNTIL SHORTLY BEFORE THE
ELECTION, THIS DISAFFECTED "GROUP" WILL RARELY IF EVER BE A COHESIVE OR
IDENTIFIABLE GROUP UNTIL A FEW MONTHS BEFORE THE ELECTION.  THUS,
OHIO'S BURDENSOME PROCEDURES, REQUIRING EXTENSIVE ORGANIZATION AND
OTHER ELECTION ACTIVITIES BY A VERY EARLY DATE, OPERATE TO PREVENT SUCH
A GROUP FROM EVER GETTING ON THE BALLOT AND THE OHIO SYSTEM THUS DENIES
THE "DISAFFECTED" NOT ONLY A CHOICE OF LEADERSHIP BUT A CHOICE ON THE
ISSUES AS WELL. 

FINALLY OHIO CLAIMS THAT ITS HIGHLY RESTRICTIVE PROVISIONS ARE
JUSTIFIED BECAUSE WITHOUT THEM A LARGE NUMBER OF PARTIES MIGHT QUALIFY
FOR THE BALLOT, AND THE VOTERS WOULD THEN BE CONFRONTED WITH A CHOICE
SO CONFUSING THAT THE POPULAR WILL COULD BE FRUSTRATED.  BUT THE
EXPERIENCE OF MANY STATES, INCLUDING THAT OF OHIO PRIOR TO 1948,
DEMONSTRATES THAT NO MORE THAN A HANDFUL OF PARTIES ATTEMPTS TO QUALIFY
FOR BALLOT POSITIONS EVEN WHEN A VERY LOW NUMBER OF SIGNATURES, SUCH AS
1% OF THE ELECTORATE, IS REQUIRED.  /9/  IT IS TRUE THAT THE EXISTENCE
OF MULTITUDINOUS FRAGMENTARY GROUPS MIGHT JUSTIFY SOME REGULATORY
CONTROL BUT IN OHIO AT THE PRESENT TIME THIS DANGER SEEMS TO US NO MORE
THAN "THEORETICALLY IMAGINABLE."  /10/  NO SUCH REMOTE DANGER CAN
JUSTIFY THE IMMEDIATE AND CRIPPLING IMPACT ON THE BASIC CONSTITUTIONAL
RIGHTS INVOLVED IN THIS CASE. 

OF COURSE, THE NUMBER OF VOTERS IN FAVOR OF A PARTY, ALONG WITH
OTHER CIRCUMSTANCES, IS RELEVANT IN CONSIDERING WHETHER STATE LAWS
VIOLATE THE EQUAL PROTECTION CLAUSE.  AND, AS WE HAVE SAID, THE STATE
IS LEFT WITH BROAD POWERS TO REGULATE VOTING, WHICH MAY INCLUDE LAWS
RELATING TO THE QUALIFICATION AND FUNCTIONS OF ELECTORS.  BUT HERE THE
TOTALITY OF THE OHIO RESTRICTIVE LAWS TAKEN AS A WHOLE IMPOSES A BURDEN
ON VOTING AND ASSOCIATIONAL RIGHTS WHICH WE HOLD IS AN INVIDIOUS
DISCRIMINATION, IN VIOLATION OF THE EQUAL PROTECTION CLAUSE. 

IV. 

THIS LEAVES ONLY THE PROPRIETY OF THE JUDGMENTS OF THE DISTRICT
COURT.  THAT COURT HELD THAT THE SOCIALIST LABOR PARTY COULD GET RELIEF
TO THE EXTENT OF HAVING THE RIGHT, DESPITE OHIO LAWS, TO GET THE
ADVANTAGE OF WRITE-IN BALLOTS.  IT RESTRICTED THE INDEPENDENT PARTY TO
THE SAME RELIEF.  THE INDEPENDENT PARTY WENT BEFORE THE DISTRICT COURT,
MADE ITS CHALLENGE, AND PRAYED FOR BROADER RELIEF, INCLUDING A JUDGMENT
DECLARING THE OHIO LAWS INVALID.  IT ALSO ASKED THAT ITS NAME BE PUT ON
THE BALLOT ALONG WITH THE DEMOCRATIC AND REPUBLICAN PARTIES.  TH
SOCIALIST LABOR PARTY ALSO WENT TO THE DISTRICT COURT AND ASKED FOR THE
SAME RELIEF.  ON THIS RECORD, HOWEVER, THE PARTIES STAND IN DIFFERENT
POSITIONS BEFORE US.  IMMEDIATELY AFTER THE DISTRICT COURT ENTERED ITS
JUDGMENT, THE NEW INDEPENDENT PARTY BROUGHT ITS CASE TO THIS COURT
WHERE MR. JUSTICE STEWART CONDUCTED A HEARING.  AT THAT HEARING OHIO
REPRESENTED TO MR. JUSTICE STEWART THAT THE INDEPENDENT PARTY'S NAME
COULD BE PLACED ON THE BALLOT WITHOUT DISRUPTING THE STATE ELECTION,
BUT IF THERE WAS A LONG DELAY, THE SITUATION WOULD BE DIFFERENT.  IT
WAS NOT UNTIL SEVERAL DAYS AFTER THAT HEARING WAS CONCLUDED AND AFTER
MR. JUSTICE STEWART HAD ISSUED HIS ORDER STAYING THE JUDGMENT AGAINST
THE INDEPENDENT PARTY THAT THE SOCIALIST LABOR PARTY ASKED FOR SIMILAR
RELIEF.  THE STATE OBJECTED ON THE GROUND THAT AT THAT TIME IT WAS
IMPOSSIBLE TO GRANT THE RELIEF TO THE SOCIALIST LABOR PARTY WITHOUT
DISRUPTING THE PROCESS OF ITS ELECTIONS; ACCORDINGLY MR. JUSTICE
STEWART DENIED IT RELIEF, AND THE STATE NOW REPEATS ITS STATEMENT THAT
RELIEF CANNOT BE GRANTED WITHOUT SERIOUS DISRUPTION OF ELECTION
PROCESS.  CERTAINLY AT THIS LATE DATE IT WOULD BE EXTREMELY DIFFICULT,
IF NOT IMPOSSIBLE, FOR OHIO TO PROVIDE STILL ANOTHER SET OF BALLOTS. 
MOREOVER, THE CONFUSION THAT WOULD ATTEND SUCH A LAST-MINUTE CHANGE
POSES A RISK OF INTERFERENCE WITH THE RIGHTS OF OTHER OHIO CITIZENS,
FOR EXAMPLE, ABSENTEE VOTERS.  UNDER THE CIRCUMSTANCES WE REQUIRE OHIO
TO PERMIT THE INDEPENDENT PARTY TO REMAIN ON THE BALLOT, ALONG WITH ITS
CANDIDATES FOR PRESIDENT AND VICE PRESIDENT, SUBJECT, OF COURSE, TO
COMPLIANCE WITH VALID REGULATORY LAWS OF OHIO, INCLUDING THE LAW
RELATING TO THE QUALIFICATION AND FUNCTIONS OF ELECTORS.  WE DO NOT
REQUIRE OHIO TO PLACE THE SOCIALIST PARTY ON THE BALLOT FOR THIS
ELECTION.  THE DISTRICT COURT'S JUDGMENT IS AFFIRMED WITH REFERENCE TO
NO. 544, THE SOCIALIST LABOR PARTY CASE, BUT IS MODIFIED IN NO. 543,
THE INDEPENDENT PARTY CASE, WITH REFERENCE TO GRANTING THAT PARTY THE
RIGHT TO HAVE ITS NAME PRINTED ON THE BALLOT. 

              IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 544, SOCIALIST LABOR PARTY ET AL. V. RHODES,
GOVERNOR OF OHIO, ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

/1/  JUDGE KINNEARY DESCRIBES, IN HIS DISSENTING OPINION BELOW, THE
LEGAL OBSTACLES PLACED BEFORE A WOULD-BE THIRD PARTY EVEN AFTER THE 15%
SIGNATURE REQUIREMENT HAS BEEN FULFILLED: 

"FIRST, AT THE PRIMARY ELECTION, THE NEW PARTY, OR ANY POLITICAL
PARTY, IS REQUIRED TO ELECT A STATE CENTRAL COMMITTEE CONSISTING OF TWO
MEMBERS FROM EACH CONGRESSIONAL DISTRICT AND COUNTY CENTRAL COMMITTEES
FOR EACH COUNTY IN OHIO.  (OHIO REV. CODE SECS. 3517.02-3517.04.) 
SECOND, AT THE PRIMARY ELECTION THE NEW PARTY MUST ELECT DELEGATES AND
ALTERNATES TO A NATIONAL CONVENTION.  (OHIO REV. CODE SEC. 3050.10.) 
SINCE SECTION 3513.19.1, OHIO REV. CODE, PROHIBITS A CANDIDATE FROM
SEEKING THE OFFICE OF DELEGATE TO THE NATIONAL CONVENTION OR
COMMITTEEMAN IF HE VOTED AS A MEMBER OF A DIFFERENT PARTY AT A PRIMARY
ELECTION IN THE PRECEDING FOUR YEAR PERIOD, THE NEW PARTY WOULD BE
REQUIRED TO HAVE OVER TWELVE HUNDRED MEMBERS WHO HAD NOT PREVIOUSLY
VOTED IN ANOTHER PARTY'S PRIMARY, AND WHO WOULD BE WILLING TO SERVE AS
COMMITTEEMEN AND DELEGATES.  THIRD, THE CANDIDATES FOR NOMINATION IN
THE PRIMARY WOULD HAVE TO FILE PETITIONS SIGNED BY QUALIFIED ELECTORS. 
(OHIO REV. CODE SEC. 3513.05.)  THE TERM 'QUALIFIED ELECTORS' IS NOT
ADEQUATELY DEFINED IN THE OHIO REVISED CODE (SEC. 3501.01 (H)), BUT A
RELATED SECTION (SEC. 3513.19), PROVIDES THAT A QUALIFIED ELECTOR AT A
PRIMARY ELECTION OF A POLITICAL PARTY IS ONE WHO, (1) VOTED FOR A
MAJORITY OF THAT PARTY'S CANDIDATES AT THE LAST ELECTION, OR, (2) HAS
NEVER VOTED IN ANY ELECTION BEFORE.  SINCE NEITHER OF THE POLITICAL
PARTY PLAINTIFFS HAD ANY CANDIDATES AT THE LAST PRECEDING REGULAR STATE
ELECTION, THEY WOULD, OF NECESSITY, HAVE TO SEEK OUT MEMBERS WHO HAD
NEVER VOTED BEFORE TO SIGN THE NOMINATING PETITIONS, AND IT WOULD BE
ONLY THESE PERSONS WHO COULD VOTE IN THE PRIMARY ELECTION OF THE NEW
PARTY." 

/2/  ART. I, SEC. 8, CL. 1. 

/3/  MARCHETTI V. UNITED STATES, 390 U.S. 39 (1968); GROSSO V.
UNITED STATES, 390 U.S. 62 (1968). 

/4/  SKINNER V. OKLAHOMA, 316 U.S. 535, 539-541 (1942); COX V.
LOUISIANA, 379 U.S. 536, 557 (1965); YICK WO V. HOPKINS, 118 U.S. 356
(1886); BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954); LOVING V.
VIRGINIA, 388 U.S. 1 (1967). 

/5/  SEE, E.G., CARRINGTON V. RASH, 380 U.S. 89 (1965); SKINNER V.
OKLAHOMA, SUPRA. 

/6/  MINE WORKERS V. ILLINOIS BAR ASSN., 389 U.S. 217 (1967); NAACP V.
BUTTON, 371 U.S. 415 (1963); NAACP V. ALABAMA, 357 U.S. 449 (1958). 

/7/  SEE NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 276-277
(1964), AND CASES THERE CITED. 

/8/  WESBERRY V. SANDERS, SUPRA, AT 17.  SEE ALSO CARRINGTON V.
RASH, SUPRA. 

/9/  FORTY-TWO STATES REQUIRE THIRD PARTIES TO OBTAIN THE SIGNATURES
OF ONLY 1% OR LESS OF THE ELECTORATE IN ORDER TO APPEAR ON THE BALLOT. 
IT APPEARS THAT NO SIGNIFICANT PROBLEM HAS ARISEN IN THESE STATES WHICH
HAVE RELATIVELY LENIENT REQUIREMENTS FOR OBTAINING BALLOT POSITION. 

/10/  CF. MINE WORKERS V. ILLINOIS BAR ASSN., SUPRA, AT 224. 

MR. JUSTICE STEWART CONCURS IN THE JUDGMENT IN NO. 544 INSOFAR AS IT
DENIES EQUITABLE RELIEF TO THE APPELLANTS. 

MR. JUSTICE DOUGLAS. 

       I. 

OHIO, THROUGH AN ENTANGLING WEB OF ELECTION LAWS, HAS EFFECTIVELY
FORECLOSED ITS PRESIDENTIAL BALLOT TO ALL BUT REPUBLICANS AND
DEMOCRATS.  IT HAS DONE SO INITIALLY BY ABOLISHING WRITE-IN VOTES SO AS
TO RESTRICT CANDIDACY TO NAMES ON THE BALLOT; /1/  IT HAS ELIMINATED
ALL INDEPENDENT CANDIDATES THROUGH A REQUIREMENT THAT NOMINEES ENJOY
THE ENDORSEMENT OF A POLITICAL PARTY; /2/  IT HAS DEFINED "POLITICAL
PARTY" IN SUCH A WAY AS TO EXCLUDE VIRTUALLY ALL BUT THE TWO MAJOR
PARTIES.  /3/ 

A CANDIDATE WHO SEEKS A PLACE ON THE OHIO PRESIDENTIAL BALLOT MUST
FIRST COMPILE SIGNATURES OF QUALIFIED VOTERS WHO TOTAL AT LEAST 15% OF
THOSE VOTING IN THE LAST GUBERNATORIAL ELECTION.  IN THIS ELECTION
YEAR, 1968, A CANDIDATE WOULD NEED 433,100 SUCH SIGNATURES.  MOREOVER,
HE MUST SUCCEED IN GATHERING THEM LONG BEFORE THE GENERAL ELECTION,
SINCE A NOMINATING PETITION MUST BE FILED WITH THE SECRETARY OF STATE
IN FEBRUARY.  /4/  THAT IS NOT ALL:  HAVING COMPILED THOSE SIGNATURES,
THE CANDIDATE MUST FURTHER SHOW THAT HE HAS RECEIVED THE NOMINATION OF
A GROUP WHICH QUALIFIES AS A "POLITICAL PARTY" WITHIN THE MEANING OF
OHIO LAW.  /5/  IT IS NOT ENOUGH TO BE AN INDEPENDENT CANDIDATE FOR
PRESIDENT WITH WIDE POPULAR SUPPORT; ONE MUST TRACE HIS SUPPORT TO A
POLITICAL PARTY.  /6/ 

TO QUALIFY AS A PARTY, A GROUP OF ELECTORS MUST PARTICIPATE IN THE
STATE PRIMARY, ELECTING ONE OF ITS MEMBERS FROM EACH COUNTY WARD OR
PRECINCT TO A COUNTY CENTRAL COMMITTEE; TWO OF ITS MEMBERS FROM EACH
CONGRESSIONAL DISTRICT TO A STATE CENTRAL COMMITTEE; /7/  AND SOME OF
ITS MEMBERS AS DELEGATES AND ALTERNATES TO A NATIONAL CONVENTION.  /8/
MOREOVER, THOSE OF ITS MEMBERS WHO SEEK A PLACE ON THE PRIMARY BALLOT
AS CANDIDATES FOR POSITIONS AS CENTRAL COMMITTEEMEN AND NATIONAL
CONVENTION DELEGATES MUST DEMONSTRATE THAT THEY DID NOT VOTE IN ANY
OTHER PARTY PRIMARY DURING THE PRECEDING FOUR YEARS; /9/  AND MUST
PRESENT PETITIONS OF ENDORSEMENT ON THEIR BEHALF BY ANYWHERE FROM FIVE
TO 1,000 VOTERS WHO LIKEWISE FAILED TO VOTE FOR ANY OTHER PARTY IN THE
LAST PRECEDING PRIMARY.  /10/  THUS, TO QUALIFY AS A THIRD PARTY, A
GROUP MUST FIRST ERECT ELABORATE POLITICAL MACHINERY, AND THEN REST IT
UPON THE RANKS OF THOSE WHO HAVE PROVED BOTH UNWILLING AND UNABLE TO
VOTE. 

HAVING ELECTED A CENTRAL COMMITTEE, THE GROUP HAS IT CONVENE A STATE
CONVENTION ATTENDED BY 500 DELEGATES DULY APPORTIONED THROUGHOUT THE
STATE ACCORDING TO PARTY STRENGTH.  /11/ DELEGATES TO THE STATE
CONVENTION THEN GO ON TO CHOOSE PRESIDENTIAL ELECTORS FOR CERTIFICATION
ON THE NOVEMBER BALLOT, WHILE ELECTED DELEGATES TO THE NATIONAL
CONVENTION GO ON TO NOMINATE THEIR CANDIDATE FOR PRESIDENT.  /12/
OHIOANS, TO BE SURE, AS A RESULT OF THE DECISION BELOW, ENJOY THE
OPPORTUNITY OF WRITING IN THE MAN OF THEIR CHOICE ON THE BALLOT.  BUT
IN A PRESIDENTIAL ELECTION, A VOTE FOR A CANDIDATE IS ONLY OPERATIVE AS
A VOTE FOR THE ELECTORS REPRESENTING HIM; AND WHERE THE STATE HAS
PREVENTED THAT CANDIDATE FROM PRESENTING A SLATE OF ELECTORS FOR
CERTIFICATION, THE WRITE-IN VOTE HAS NO EFFECT.  FURTHERMORE, EVEN
WHERE OPERATIVE, THE WRITE-INS ARE NO SUBSTITUTE FOR A PLACE ON THE
BALLOT. 

TO FORCE A CANDIDATE TO RELY ON WRITE-INS IS TO BURDEN HIM WITH
DISABILITY.  IT MAKES IT MORE DIFFICULT FOR HIM TO GET ELECTED, AND FOR
THE VOTERS TO ELECT HIM. 

THESE BARRIERS OF PARTY, TIMING, AND STRUCTURE ARE GREAT OBSTACLES. 
TAKEN TOGETHER THEY RENDER IT DIFFICULT, IF NOT IMPOSSIBLE, FOR A MAN
WHO DISAGREES WITH THE TWO MAJOR PARTIES TO RUN FOR PRESIDENT IN OHIO,
TO ORGANIZE AN OPPOSITION, AND TO VOTE A THIRD TICKET. 

        II. 

THE SELECTION OF PRESIDENTIAL ELECTORS IS PROVIDED IN ART. II, SEC.
1, OF THE CONSTITUTION.  IT IS UNNECESSARY IN THIS CASE TO DECIDE
WHETHER ELECTORS ARE STATE RATHER THAN FEDERAL OFFICIALS, WHETHER
STATES MAY SELECT THEM THROUGH APPOINTMENT RATHER THAN BY POPULAR VOTE,
OR WHETHER THERE IS A CONSTITUTIONAL RIGHT TO VOTE FOR THEM.  FOR IN
THIS CASE OHIO HAS ALREADY PROVIDED FOR THEM TO BE CHOSEN BY RIGHT OF
POPULAR SUFFRAGE.  HAVING DONE SO, THE QUESTION IS WHETHER OHIO MAY
ENCUMBER THAT RIGHT WITH CONDITIONS OF THE CHARACTER IMPOSED HERE. 

        III. 

THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH AMENDMENT, LIES AT THE ROOT OF THESE CASES.  THE RIGHT OF
ASSOCIATION IS ONE FORM OF "ORDERLY GROUP ACTIVITY" (NAACP V. BUTTON,
371 U.S. 415, 430), PROTECTED BY THE FIRST AMENDMENT.  THE RIGHT "TO
ENGAGE IN ASSOCIATION FOR THE ADVANCEMENT OF BELIEFS AND IDEAS" (NAACP
V. ALABAMA, 357 U.S. 449, 460), IS ONE ACTIVITY OF THAT NATURE THAT HAS
FIRST AMENDMENT PROTECTION.  AS WE SAID IN BATES V. LITTLE ROCK, 361
U.S. 516, 523, "FREEDOM OF ASSOCATION FOR THE PURPOSE OF ADVANCING
IDEAS AND AIRING GRIEVANCES IS PROTECTED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT FROM INVASION BY THE STATES."  AND SEE
LOUISIANA V. NAACP, 366 U.S. 293, 296.  AT THE ROOT OF THE PRESENT
CONTROVERSY IS THE RIGHT TO VOTE-- A "FUNDAMENTAL POLITICAL RIGHT" THAT
IS "PRESERVATIVE OF ALL RIGHTS."  YICK WO V. HOPKINS, 118 U.S. 356,
370.  THE RIGHTS OF EXPRESSION AND ASSEMBLY MAY BE "ILLUSORY IF THE
RIGHT TO VOTE IS UNDERMINED."  WESBERRY V. SANDERS, 376 U.S. 1, 17. 
IN OUR POLITICAL LIFE, THIRD PARTIES ARE OFTEN IMPORTANT CHANNELS
THROUGH WHICH POLITICAL DISSENT IS AIRED:  "ALL POLITICAL IDEAS CANNOT
AND SHOULD NOT BE CHANNELED INTO THE PROGRAMS OF OUR TWO MAJOR
PARTIES.  HISTORY HAS AMPLY PROVED THE VIRTUE OF POLITICAL ACTIVITY BY
MINORITY, DISSIDENT GROUPS, WHICH INNUMERABLE TIMES HAVE BEEN IN THE
VANGUARD OF DEMOCRATIC THOUGHT AND WHOSE PROGRAMS WERE ULTIMATELY
ACCEPTED.  . . . THE ABSENCE OF SUCH VOICES WOULD BE A SYMPTOM OF GRAVE
ILLNESS IN OUR SOCIETY."  SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 250
251 (OPINION OF WARREN, C.J.). 

THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDEMENT PERMITS THE
STATES TO MAKE CLASSIFICATIONS AND DOES NOT REQUIRE THEM TO TREAT
DIFFERENT GROUPS UNIFORMLY.  NEVERTHELESS, IT BANS ANY "INVIDIOUS
DISCRIMINATION."  HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663,
667. 

THAT COMMAND PROTECTS VOTING RIGHTS AND POLITICAL GROUPS (CARRINGTON
V. RASH, 380 U.S. 89), AS WELL AS ECONOMIC UNITS, RACIAL COMMUNITIES,
AND OTHER ENTITIES.  WHEN "FUNDAMENTAL RIGHTS AND LIBERTIES" ARE AT
ISSUE (HARPER V. VIRGININA BOARD, SUPRA, AT 670), A STATE HAS LESS
LEEWAY IN MAKING CLASSIFICATIONS THAN WHEN IT DEALS WITH ECONOMIC
MATTERS.  I WOULD THINK THAT A STATE HAS PRECIOUS LITTLE LEEWAY IN
MAKING IT DIFFICULT OR IMPOSSIBLE FOR CITIZENS TO VOTE FOR WHOMSOEVER
THEY PLEASE AND TO ORGANIZE CAMPAIGNS FOR ANY SCHOOL OF THOUGHT THEY
MAY CHOOSE, WHATEVER PART OF THE SPECTRUM IT REFLECTS. 

CUMBERSOME ELECTION MACHINERY CAN EFFECTIVELY SUFFOCATE THE RIGHT OF
ASSOCIATION, THE PROMOTION OF POLITICAL IDEAS AND PROGRAMS OF POLITICAL
ACTION, AND THE RIGHT TO VOTE.  THE TOTALITY OF OHIO'S REQUIREMENTS HAS
THOSE EFFECTS.  IT IS UNNECESSARY TO DECIDE WHETHER OHIO HAS AN
INTEREST, "COMPELLING" OR NOT, IN ABRIDGING THOSE RIGHTS, BECAUSE "THE
MEN WHO DRAFTED OUR BILL OF RIGHTS DID ALL THE 'BALANCING' THAT WAS TO
BE DONE IN THIS FIELD."  KONIGSBERG V. STATE BAR, 366 U.S. 36, 61
(BLACK, J., DISSENTING).  APPELLEES WOULD IMPOLY THAT "NO KIND OF
SPEECH IS TO BE PROTECTED IF THE GOVERNMENT CAN ASSERT AN INTEREST OF
SUFFICIENT WEIGHT TO INDUCE THIS COURT TO UPHOLD ITS ABRIDGMENT." 
(ID., AT 67.)  I REJECT THAT SUGGESTION.  /13/ 

A THREE-JUDGE DISTRICT COURT HELD THAT APPELLANTS WERE ENTITLED TO
THE USE OF WRITE-IN BALLOTS.  YET IT REFRAINED FROM ORDERING THE OHIO
AMERICAN INDEPENDENT PARTY TO BE PLACED ON THE BALLOT, RELYING PARTLY
ON LACHES AND PARTLY ON THE PRESENCE OF WHAT IT DEEMED TO BE SO-CALLED
"POLITICAL" QUESTIONS.  290 F.SUPP.  983.  FIRST AMENDMENT RIGHTS, THE
RIGHT TO VOTE, AND OTHER "FUNDAMENTAL RIGHTS AND LIBERTIES" (HARPER V.
VIRGINIA BOARD, SUPRA, AT 670) HAVE A WELL-ESTABLISHED CLAIM TO
INCLUSION IN JUSTICIABLE, AS DISTINGUISHED FROM "POLITICAL," QUESTIONS;
AND THE RELIEF THE COURT GRANTS MEETS THE PRACTICAL NEEDS OF APPELLEES
IN PREPARING AND DISTRIBUTING THE BALLOTS. 

THE SOCIALIST LABOR PARTY, WITH A LINEAGE THAT GOES BACK TO THE
PRESIDENTIAL CONTEST IN 1892, BY 1964 WAS ON THE BALLOT IN 16 STATES. 
TODAY, ALTHOUGH IT HAS ONLY 108 MEMBERS IN OHIO, IT EARNESTLY PRESSES
ITS CLAIM FOR RECOGNITION.  YET IT STARTED THE PRESENT ACTION SO LATE
THAT CONCEDEDLY IT WOULD NOW BE IMPOSSIBLE TO GET ITS NAME ON ALL THE
BALLOTS.  THE RELIEF ASKED IS OF SUCH A CHARACTER THAT WE PROPERLY
DECLINE TO ALLOW THE FEDERAL COURTS TO PLAY A DISRUPTIVE ROLE IN THIS
1968 STATE ELECTION.  ON THE MERITS, HOWEVER, THE SOCIALIST LABOR PARTY
HAS AS STRONG A CASE AS THE AMERICAN INDEPENDENT PARTY, AS BY BROTHER
HARLAN STATES AND AS THE COURT APPARENTLY AGREES.  IT IS THEREFORE
PROPER FOR US TO GRANT IT DECLARATORY RELIEF. 

HENCE I CONCUR IN TODAY'S DECISION; AND, WHILE MY EMPHASIS IS
DIFFERENT FROM THE COURT'S, I JOIN ITS OPINION. 

/1/  OHIO REV. CODE SEC. 3505.03 (1960 REPL.  VOL.). 

/2/  INDEPENDENT CANDIDACY IN OHIO IS LIMITED TO MUNICIPAL OFFICES,
OHIO REV. CODE SECS. 3513.251-3513.252; COUNTY OFFICES, OHIO REV. CODE
SEC. 3513.256; STATE OFFICES, AND FEDERAL OFFICES EXCLUDING PRESIDENT,
OHIO REV. CODE SECS. 3513.257-3513.258. 

/3/  OHIO REV. CODE SECS. 3505.10, 3513.05-3513.191, 3517.01
3517.04. 

/4/  A CANDIDATE FOR PRESIDENT MUST FIRST FORMULATE A PARTY BY
GATHERING SIGNATURES, OHIO REV. CODE SEC. 3517.01, WHICH MUST, IN TURN,
BE PRESENTED IN TIME FOR THE PARTY TO PARTICIPATE IN THE STATE
PRIMARY.  OHIO REV. CODE SECS. 3513.256-3513.262. 

/5/  OHIO REV. CODE SEC. 3513.258. 

/6/  OHIO REV. CODE SEC. 3505.10. 

/7/  OHIO REV. CODE SEC. 3517.02-3517.04. 

/8/  OHIO REV. CODE SEC. 3505.10. 

/9/  OHIO REV. CODE SEC. 3513.191. 

/10/  OHIO REV. CODE SEC. 3513.05. 

/11/  OHIO REV. CODE SEC. 3513.11. 

/12/  OHIO REV. CODE SEC. 3513.12. 

/13/  BATES V. CITY OF LITTLE ROCK, 361 U.S. 516, 528 (BLACK AND
DOUGLAS, JJ., CONCURRING); SMITH V. CALIFORNIA, 361 U.S. 147, 157
(BLACK, J., CONCURRING). 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I AGREE THAT THE AMERICAN INDEPENDENT PARTY IS ENTITLED TO HAVE THE
NAMES OF ITS PRESIDENTIAL AND VICE PRESIDENTIAL CANDIDATES PLACED ON
THE OHIO BALLOT IN THE FORTHCOMING ELECTION, BUT THAT, FOR THE
PRACTICAL REASONS STATED BY THE COURT, THE SOCIALIST LABOR PARTY IS
NOT.  HOWEVER, I WOULD REST THIS DECISION ENTIRELY ON THE PROPOSITION
THAT OHIO'S STATUTORY SCHEME VIOLATES THE BASIC RIGHT OF POLITICAL
ASSOCIATION ASSURED BY THE FIRST AMENDMENT WHICH IS PROTECTED AGAINST
STATE INFRINGEMENT UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  SEE NAACP V. BUTTON, 371 U.S. 415 (1963); BATES V. LITTLE
ROCK, 361 U.S. 516 (1960); NAACP V. ALABAMA, 357 U.S. 449 (1958).  IT
IS TRUE THAT OHIO HAS NOT DIRECTLY LIMITED APPELLANTS' RIGHT TO
ASSEMBLE OR DISCUSS PUBLIC ISSUES OR SOLICIT NEW MEMBERS.  COMPARE
THOMAS V. COLLINS, 323 U.S. 516 (1945); DE JONGE V. OREGON, 299 U.S.
353 (1937); NEAR V. MINNESOTA, 283 U.S. 697 (1931).  INSTEAD, BY
DENYING THE APPELLANTS ANY OPPORTUNITY TO PARTICIPATE IN THE PROCEDURE
BY WHICH THE PRESIDENT IS SELECTED, THE STATE HAS ELIMINATED THE BASIC
INCENTIVE THAT ALL POLITICAL PARTIES HAVE FOR CONDUCTING SUCH
ACTIVITIES, THEREBY DEPRIVING APPELLANTS OF MUCH OF THE SUBSTANCE, IF
NOT THE FORM, OF THEIR PROTECTED RIGHTS.  THE RIGHT TO HAVE ONE'S VOICE
HEARD AND OF THE RIGHT OF POLITICAL ASSOCIATION. 

IT FOLLOWS THAT THE PARTICULAR METHOD BY WHICH PRESIDENTIAL ELECTORS
ARE CHOSEN IS NOT OF DECISIVE IMPORTANCE TO A SOLUTION OF THE
CONSTITUTIONAL PROBLEM BEFORE US.  JUST AS A POLITICAL GROUP HAS A
RIGHT TO ORGANIZE EFFECTIVELY SO THAT ITS POSITION MAY BE HEARD IN
COURT, NAACP V. BUTTON, SUPRA, OR IN THE LEGISLATURE, CF. EASTERN R.
PRESIDENTS CONFERENCE V. NOERR MOTOR FREIGHT, INC., 365 U.S. 127, 137
138 (1961); UNITED STATES V. RUMELY, 345 U.S., 41, 46-47 (1953); UNITED
STATES V. HARRISS, 347 U.S. 612, 625-626 (1954); SO IT HAS THE RIGHT TO
PLACE ITS CANDIDATE FOR THE PRESIDENCY BEFORE WHATEVER BODY HAS THE
POWER TO MAKE THE STATE'S SELECTION OF ELECTORS.  CONSEQUENTLY, IT
MAKES NO DIFFERENCE THAT THE STATE OF OHIO MAY, UNDER THE SECOND
ARTICLE OF THE CONSTITUTION, PLACE THE POWER OF ELECTORAL SELECTION
BEYOND THE CONTROL OF THE GENERAL ELECTORATE.  THE REQUIREMENT IMPOSED
BY THE DUE PROCESS CLAUSE REMAINS THE SAME-- NO MATTER WHAT THE
INSTITUTION TO WHICH THE DECISION IS ENTRUSTED, POLITICAL GROUPS HAVE A
RIGHT TO BE HEARD BEFORE IT.  A STATUTE THAT WOULD REQUIRE THAT ALL
ELECTORS BE MEMBERS OF THE TWO MAJOR PARTIES IS SUBJECT TO THE SAME
CONSTITUTIONAL CHALLENGE REGARDLESS OF WHETHER IT IS THE LEGISLATURE,
THE PEOPLE, OR SOME OTHER BODY THAT IS EMPOWERED TO MAKE THE ULTIMATE
DECISION UNDER THE LAWS OF THE STATE. 

OF COURSE, THE STATE MAY LIMIT THE RIGHT OF POLITICAL ASSOCIATION BY
INVOKING AN IMPELLING POLICY JUSTIFICATION FOR DOING SO.  BUT AS MY
BROTHER BLACK'S OPINION DEMONSTRATES, OHIO HAS BEEN ABLE TO ADVANCE NO
SUCH JUSTIFICATION FOR DENYING ALMOST HALF A MILLION OF ITS CITIZENS
THEIR FUNDAMENTAL RIGHT TO ORGANIZE EFFECTIVELY FOR POLITICAL
PURPOSES.  CONSEQUENTLY, IT MAY NOT EXCLUDE THEM FROM THE PROCESS BY
WHICH PRESIDENTIAL ELECTORS ARE SELECTED. 

IN DECIDING THIS CASE OF FIRST IMPRESSION, I THINK IT UNNECESSARY TO
DRAW UPON THE EQUAL PROTECTION CLAUSE.  /1/  I AM BY NO MEANS CLEAR
THAT EQUAL PROTECTION DOCTRINE, ESPECIALLY AS IT HAS BEEN PROPOUNDED IN
THE RECENT STATE REAPPORTIONMENT CASES, E.G., REYNOLDS V. SIMS, 377
U.S. 533 (1964), MAY PROPERLY BE APPLIED TO ADJUDICATE DISPUTES
INVOLVING THE MERE PROCEDURE BY WHICH THE PRESIDENT IS SELECTED, AS
THAT PROCESS IS GOVERNED BY PROFOUNDLY DIFFERENT PRINCIPLES.  /2/
DESPITE MY DOUBTS ON THIS SCORE, I THINK IT PERFECTLY CONSISTENT AND
APPROPRIATE TO HOLD THE DUE PROCESS CLAUSE APPLICABLE.  FOR I BELIEVE
THAT OUR TASK IS MORE DIFFICULT THAN ONE WHICH INVOLVES MERELY THE
MECHANICAL APPLICATION OF THE COMMANDS TO BE FOUND IN THE FOURTEENTH
AMENDMENT OR IN THE FIRST SECTION OF THE SECOND ARTICLE TO THE
CONSTITUTION.  RATHER, WE MUST ATTEMPT TO ACCOMMODATE AS BEST WE MAY
THE NARROW PROVISION DRAFTED BY THE PHILADELPHIA CONVENTION WITH THE
BROAD PRINCIPLES ANNOUNCED IN THE FOURTEENTH AMENDMENT, GENERATIONS
LATER. 

A DECISION RESTING SOLELY UPON THE DUE PROCESS CLAUSE WOULD PERMIT
SUCH AN ACCOMMODATION-- FOR SUCH A HOLDING FULLY RESPECTS THE ORIGINAL
PURPOSES AND EARLY DEVELOPMENT OF THE ELECTORAL COLLEGE.  WHEN ONE
LOOKS BEYOND THE LANGUAGE OF ARTICLE II, AND CONSIDERS THE CONVENTION'S
UNDERSTANDING OF THE COLLEGE, OHIO'S RESTRICTIVE APPROACH IS SEEN TO
UNDERMINE WHAT THE DRAFTSMEN UNDERSTOOD TO BE ITS VERY ESSENCE.  THE
COLLEGE WAS CREATED TO PERMIT THE MOST KNOWLEDGEABLE MEMBERS OF THE
COMMUNITY TO CHOOSE THE EXECUTIVE OF A NATION WHOSE CONTINENTAL
DIMENSIONS WERE THOUGHT TO PRECLUDE AN INFORMED CHOICE BY THE CITIZENRY
AT LARGE.  /3/  IF A STATE DECLARES THAT AN ENTIRE CLASS OF CITIZENS IS
INELIGIBLE FOR THE POSITION OF ELECTOR, AND THAT CLASS IS DEFINED IN A
WAY IN WHICH INDIVIDUAL MERIT PLAYS NO PART, IT STRIKES AT THE VERY
BASIS OF THE COLLEGE AS IT WAS ORIGINALLY CONCEIVED. 

THE CONSTITUTIONAL GRANT OF POWER TO THE STATES WAS INTENDED FOR A
DIFFERENT PURPOSE.  WHILE MADISON REPORTS THAT THE POPULAR ELECTION OF
ELECTORS ON A DISTRICT-BY-DISTRICT BASIS WAS THE METHOD "MOSTLY, IF NOT
EXCLUSIVELY, IN VIEW WHEN THE CONSTITUTION WAS FRAMED AND ADOPTED," 3
M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, P. 459
(1911), IT IS QUITE CLEAR THAT A SIGNIFICANT, IF NOT DOMINANT, GROUP
/4/  AT THE CONVENTION CONTEMPLATED THAT ELECTORS WOULD BE CHOSEN BY
OTHER METHODS.  IT WAS TO ACCOMMODATE THESE MEMBERS THAT THE STATE
LEGISLATURES WERE GIVEN THEIR PRESENT LEEWAY.  /5/  WHILE DURING THE
FIRST FOUR DECADES OF THE REPUBLIC, THE STATES DID IN FACT ADOPT A
VARIETY OF METHODS FOR SELECTING THEIR ELECTORS, /6/  THE PARTIES IN
THIS CASE HAVE POINTED TO, AND I HAVE FOUND, NO CASE IN WHICH THE
LEGISLATURE ATTEMPTED BY STATUTE TO RESTRICT THE CLASS OF THE
ENFRANCHISED CITIZENRY THAT COULD BE CONSIDERED FOR THE OFFICE BY
WHATEVER BODY WAS TO MAKE THE CHOICE.  /7/ 

NOTHING IN THE HISTORY OF THE ELECTORAL COLLEGE FROM THE MOMENT OF
ITS INCEPTION, THEN, INDICATES THAT THE ORIGINAL UNDERSTANDING OF THAT
INSTITUTION WOULD AT ALL BE COMPROMISED IF WE REFUSE TO READ THE
LANGUAGE OF ART. II, SEC. 1, AS GRANTING A POWER OF ARBITRARY ACTION
WHICH IS SO RADICALLY INCONSISTENT WITH THE GENERAL PRINCIPLES OF THE
DUE PROCESS CLAUSE.  CONSEQUENTLY, THERE IS NOT OBSTACLE TO A HOLDING
WHICH DENIES THE STATES, ABSENT AN OVERRIDING STATE INTEREST, THE RIGHT
TO PREVENT THIRD PARTIES FROM HAVING AN OPPORTUNITY TO PUT THEIR
CANDIDATES BEFORE THE ATTENTION OF THE VOTERS OR WHATEVER OTHER BODY
THE STATE HAS DESIGNATED AS THE ONE WHICH IS TO CHOOSE ELECTORS. 

A WORD SHOULD BE ADDED ABOUT THE CONSTITUTIONAL STATUS OF OHIO'S
REQUIREMENT THAT A THIRD PARTY, TO QUALIFY FOR BALLOT POSITION, MUST
COLLECT THE SIGNATURES OF ELIGIBLE VOTERS IN A NUMBER EQUAL TO 15% OF
THOSE VOTING AT THE LAST GUBERNATORIAL ELECTION.  AS I DO NOT
UNDERSTAND THE STATE TO CONTEST THE FACT THAT MR. WALLACE AND HIS
PARTISANS HAVE SUCCESSFULLY GATHERED MORE THAN THE 433,100 SIGNATURES
REQUIRED BY LAW, WE CAN ONLY PROPERLY REACH THIS ISSUE IN THE SOCIALIST
LABOR PARTY CASE-- FOR THIS PARTY DID NOT EVEN ATTEMPT TO COMPLY WITH
THE STATUTORY COMMAND.  WHILE THE COURT'S OPINION, STRIKING DOWN OHIO'S
STATUTORY SCHEME IN ITS ENTIRETY, DOES, AS I READ IT, AFFORD THE
SOCIALIST LABOR PARTY DECLARATORY RELIEF FROM THE 15% PROVISION, I
THINK IT WELL TO DEAL WITH IT MORE EXPLICITLY THAN THE COURT HAS DONE. 

IN MY VIEW, THIS REQUIREMENT, EVEN WHEN REGARDED IN ISOLATION, MUST
FALL.  AS MY BROTHER BLACK'S OPINION SUGGESTS, THE ONLY LEGITIMATE
INTEREST THE STATE MAY INVOKE IN DEFENSE OF THIS BARRIER TO THIRD-PARTY
CNADIDACIES IS THE FEAR THAT, WITHOUT SUCH A BARRIER, CANDIDACIES WILL
PROLIFERATE IN SUCH NUMBERS AS TO CREATE A SUBSTANTIAL RISK OF VOTER
CONFUSION.  /8/  OHIO'S REQUIREMENT CANNOT BE SAID TO BE REASONABLY
RELATED TO THIS INTEREST.  EVEN IN THE UNPRECEDENTED EVENT OF A
COMPLETE AND UTTER POPULAR DISAFFECTION WITH THE TWO ESTABLISHED
PARTIES, OHIO LAW WOULD PERMIT AS MANY AS SIX ADDITIONAL PARTY
CANDIDATES TO COMPETE WITH THE DEMOCRATS AND REPBLICANS ONLY IF POPULAR
SUPPORT SHOULD BE DIVIDED RELATIVELY EVENLY AMONG THE NEW GROUPS.  AND
WITH FUNDAMENTAL FREEDOMS AT STAKE, SUCH AN UNLIKELY HYPOTHESIS CANNOT
SUPPORT AN INCURSION UPON PROTECTED RIGHTS, ESPECIALLY SINCE THE
PRESENCE OF EIGHT CANDIDACIES CANNOT BE SAID, IN LIGHT OF EXPERIENCE,
TO CARRY A SIGNIFICANT DANGER OF VOTER CONFUSION.  AS BOTH OHIO'S
ELECTORAL HISTORY /9/  AND THE ACTIONS TAKEN BY THE OVERWHELMING
MAJORITY OF OTHER STATES /10/  SUGGEST, OPENING THE BALLOT TO THIS
EXTENT IS PERFECTLY CONSISTENT WITH THE EFFECTIVE FUNCTIONING OF THE
ELECTORAL PROCESS.  IN SUM, I THINK THAT OHIO HAS FALLEN FAR SHORT OF
SHOWING THE COMPELLING STATE INTEREST NECESSARY TO OVERCOME THIS
OTERHWISE PROTECTED RIGHT OF POLITICAL ASSOCIATION.     SINCE OHIO'S
REQUIRMENT IS SO CLEARLY DISPROPORTIONATE TO THE MAGNITUDE OF THE RISK
THAT IT MAY PROPERLY ACT TO PREVENT, I NEED NOT REACH THE QUESTION OF
THE SIZE OF THE SIGNATURE BARRIER A STATE MAY LEGITIMATELY RAISE
AGAINST THIRD PARTIES ON THIS GROUND.  THIS SHOULD BE LEFT TO THE OHIO
LEGISLATURE IN THE FIRST INSTANCE. 

/1/  THE FACT THAT APPELLANTS HAVE CHOSEN TO PITCH THEIR ARGUMENT
THROUGHOUT ON THE EQUAL PROTECTION CLAUSE DOES NOT, OF COURSE, LIMIT
USE IN REACHING OUR DECISION HERE.     /2/  AT NO STAGE IN THE COMPLEX
PROCESS BY WHICH A PRESIDENT IS CHOSEN IS THE "ONE MAN, ONE VOTE"
PRINCIPLE OF REYNOLDS V. SIMS FOLLOWED.  THE CONSTITUTIONAL DECISION TO
GRANT EACH STATE AT LEAST THREE ELECTORS, REGARDLESS OF POPULATION, WAS
A NECESSARY PART OF THE EFFORT TO GAIN THE CONSENT OF THE SMALL STATES,
AS WAS THE PROVISION THAT WHEN THE CHOICE OF THE PRESIDENT FELL TO THE
HOUSE, EACH STATE DELEGATION WOULD CAST BUT ONE VOTE.  SEE N. PEIRCE,
THE PEOPLE'S PRESIDENT 43-50 (1968); L. WILMERDING, THE ELECTORAL
COLLEGE 17-22 (1958). 

/3/  FEDERALIST PAPERS, NO. 68.  (ALEXANDER HAMILTON) (H. LODGE ED.
1908); AMERICAN BAR ASSOCIATION, ELECTING THE PRESIDENT 15 (1967);
WILMERDING, SUPRA, N. 2, AT 10; R. MACBRIDE, THE AMERICAN ELECTORAL
COLLEGE 16-17 (1953). 

/4/  THE LARGE NUMBER OF LEADERS, OF VARYING IDEOLOGICAL
CONVICTIONS, WHO FAVORED POPULAR ELECTION INCLUDED HAMILTON, MADISON,
JAMES WILSON, JOHN DICKINSON, RUFUS KING, DANIEL CARROLL, AND ABRAHAM
BALDWIN.  THE OPPONENTS OF POPULAR SELECTION INCLUDED GERRY, ELLSWORTH,
LUTHER MARTIN, AND ROGER SHERMAN.  SEE CHIEF JUSTICE FULLER'S
ILLUMINATING OPINION IN MCPHERSON V. BLACKER, 146 U.S. 1, 28 (1892). 
SEE ALSO WILMERDING, SUPRA, N. 2, AT 13-14. 

/5/  THE STORY OF THE COMPROMISE IS TO BE FOUND IN WILMERDING,
SUPRA, N. 2, AT 17-22.  THE CONVENTION DID NOT, HOWEVER, DIRECT ITS
ATTENTION TO THE PRECISE MEANING OF THE CLAUSE THAT IS THE SUBJECT OF
CONSIDERATION HERE.  SEE PEIRCE, SUPRA, N. 2, AT 45. 

/6/  ELECTORS WERE CHOSEN BY THE LEGISLATURE ITSELF, BY THE GENERAL
ELECTORATE ON AN AT-LARGE AND DISTRICT-BY-DISTRICT BASIS, PARTLY BY THE
LEGISLATURE AND PARTLY BY THE PEOPLE, BY THE LEGISLATURE FROM A LIST OF
CANDIDATES SELECTED BY THE PEOPLE, AND IN OTHER WAYS.  SEE MCPHERSON V.
BLACKER, SUPRA, 28-33; WILMERDING, SUPRA, N. 2, C. 3; PEIRCE, SUPRA, N.
2, AT 309. 

/7/  NOR DOES THE LEADING CASE IN THIS AREA, MCPHERSON V. BLACKER,
SUPRA, SUPPORT SUCH A CLAIM.  THERE THE PLAINTIFFS-IN-ERROR HAD
CHALLENGED MICHIGAN'S ATTEMPT TO PERMIT ITS VOTERS TO SELECT ELECTORS
ON A DISTRICT-BY-DISTRICT, RATHER THAN AN AT-LARGE, BASIS.  THE COURT
HELD THAT, GIVEN THE EARLY HISTORY, SEE N. 6, SUPRA, THE STATES HAVE
THE PLENARY POWER TO ALTER THE METHOD BY WHICH ELECTORS ARE SELECTED SO
LONG AS THE METHOD CANNOT BE ATTACKED ON FOURTEENTH AMENDMENT GROUNDS. 
PURSUING THIS ANALYSIS, THE UNANIMOUS COURT FOUND THE DISTRICT-BY
DISTRICT APPROACH FREE OF ANY FOURTEENTH AMENDMENT DEFECT, 146 U.S.,AT
37-40.  I CAN PERCEIVE NO REASON TO DOUBT THE CONTINUING VALIDITY OF
THIS HOLDING. 

/8/  MY BROTHER STEWART IS, OF COURSE, QUITE RIGHT IN POINTING OUT
THAT THE PRESENCE OF THIRD PARTIES MAY ON OCCASION RESULT IN THE
ELECTION OF THE MAJOR CANDIDATE WHO IS IN REALITY LESS PREFERRED BY THE
MAJORITY OF THE VOTERS.  IT SEEMS CLEAR TO ME, HOWEVER, THAT MANY
CONSTITUTIONAL ELECTORAL STRUCTURES COULD BE DEISGNED WHICH WOULD
ACCOMMODATE THIS VALID STATE INTEREST, WITHOUT DEPRIVING OTHER
POLITICAL ORGANIZATIONS OF THE RIGHT TO PARTICIPATE EFFECTIVELY IN THE
POLITICAL PROCESS.  A RUNOFF ELECTION MAY BE MANDATED IF NO PARTY GAINS
A MAJORITY, OR THE DECISION COULD BE LEFT TO THE STATE LEGISLATURE IN
SUCH A CASE, COMPARE FORTSON V. MORRIS, 385 U.S. 231 (1966). 
ALTERNATIVELY, THE VOTER COULD BE GIVEN THE RIGHT, AT THE GENERAL
ELECTION, TO INDICATE BOTH HIS FIRST AND HIS SECOND CHOICE FOR THE
PRESIDENCY-- IF NO CANDIDATE RECEIVED A MAJORITY OF FIRST-CHOICE VOTES,
THE SECOND-CHOICE VOTES COULD THEN BE CONSIDERED.  FINALLY, ELECTORS
COULD BE CHOSEN ON A DISTRICT-BY-DISTRICT RATHER THAN A AT-LARGE BASIS,
THEREBY APPORTIONING THE ELECTORAL VOTE IN A WAY MORE NEARLY
APPROXIMATING THE POPULAR VOTE.  SEE MCPHERSON V. BLACKER, SUPRA, AND
TEST, AT N. 4, SUPRA.  I WOULD CONCLUDE THAT, WITH THE SUBSTANTIAL
VARIETY OF LESS RESTRICTIVE ALTERNATIVES THAT ARE AVAILABLE, COMPARE
NAACP V. ALABAMA, 377 U.S. 288, 307-308 (1964); SAIA V. NEW YORK, 334
U.S. 558, 562 (1948); MARTIN V. STRUTHERS, 319 U.S. 141, 146-149
(1943); THORNHILL V. ALABAMA, 310 U.S. 88, 96 (1940); SCHNEIDER V.
STATE, 308 U.S. 147 (1939), THIS INTEREST CANNOT SUPPORT OHIO'S 15%
REQUIREMENT. 

/9/  OHIO'S PRESENT STATUTORY SCHEME IS A PRODUCT OF LEGISLATIVE
ACTION TAKEN BETWEEN 1948 AND 1952.  BEFORE THAT TIME, INDEPENDENT
CANDIDATES HAD BEEN GRANTED A PLACE ON THE BALLOT IF THEY COULD GATHER
THE SIGNATURES OF REGISTERED VOTERS IN THE NUMBER OF 1% OF THOSE VOTING
AT THE PRECEDING GUBERNATORIAL ELECTION AND PRESENT THEIR PETITIONS 60
DAYS BEFORE THE GENERAL ELECTION.  THE STATE'S EXPERIENCE UNDER THIS
UNEXACTING REGIME IS INSTRUCTIVE.  VOTING STATISTICS COMPLIED BY OHIO'S
SECRETARY OF STATE REVEAL THAT SINCE 1900 NO MORE THAN SEVEN PARTIES
HAVE APPEARED ON THE BALLOT TO COMPETE FOR A MAJOR STATEWIDE OR
NATIONAL OFFICE.  AND EVEN THIS NUMBER WAS NOT ATTAINED AFTER 1908. 
DURING THE LAST 10 YEARS OF THE OLD REGIME, THERE ARE ONLY TWO THIRD
PARTY CANDIDATES OF RECORD.  THE STATE TOOK EFFECTIVE ACTION ONLY AFTER
ELECTORS PLEDGED TO HENRY A. WALLACE GAINED SOME 30,000 VOTES OUT OF
THE 3,000,000 CAST IN 1948.  SINCE HARRY S. TRUMAN CARRIED THE STATE BY
SOME 7,000 VOTES, THE WALLACE VOTE MIGHT WELL HAVE BEEN DECISIVE IF IT
HAD INCREASED MARGINALLY. 

/10/  THE OTHER 49 STATES MAY BE GROUPED IN THE FOLLOWING CATEGORIES
WITH REGARD TO THE SIZE OF THE BARRIERS THEY RAISE AGAINST THIRD-PARTY
CANDIDACIES:  (TABLE OMMITTED) 

MR. JUSTICE STEWART, DISSENTING IN NO. 543.  /0/ 

IF IT WERE THE FUNCTION OF THIS COURT TO IMPOSE UPON THE STATES OUR
OWN IDEAS OF WISE POLICY, I MIGHT BE INCLINED TO JOIN MY BRETHREN IN
COMPELLING THE OHIO ELECTION AUTORITIES TO DISREGARD THE LAWS ENACTED
BY THE LEGISLATURE OF THAT STATE.  WE DEAL, HOWEVER, NOT WITH A
QUESTION OF POLICY, BUT WITH A PROBLEM OF CONSTITUTIONAL POWER.  AND TO
ME IT IS CLEAR THAT, UNDER THE CONSTITUTION AS IT IS WRITTEN, THE OHIO
LEGISLATURE HAS THE POWER TO DO WHAT IT HAS DONE. 

  I. 

THE CONSTITUTION DOES NOT PROVIDE FOR POPULAR ELECTION OF A
PRESIDENT OR VICE PRESIDENT OF THE UNITED STATES, EITHER NATIONALLY OR
ON A STATE-BY-STATE BASIS.  ON THE CONTRARY, THE CONSTITUTION
EXPLICITLY SPECIFIES: 

     "EACH STATE SHALL APPOINT, IN SUCH MANNER AS THE LEGISLATIVE

  THEREOF MAY DIRECT, A NUMBER OF ELECTORS, EQUIAL TO THE WHOLE

  NUMBER OF SENATORS AND REPRESENTATIVES TO WHICH THE STATE MAY BE

  ENTITLED IN THE CONGRESS.  . . . "  /1/ 

     "THE ELECTORS AHLL MEET IN THEIR RESPECTIVE STATES AND VOTE BY

BALLOT FOR PRESIDENT AND VICE-PRESIDENT.  . . . "  /2/ 

CHIEF JUSTICE FULLER, THEREFORE, WAS STATING NO MORE THAN THE
OBVKOUS WHEN HE WROTE FOR A UNANIMOUS COURT IN MCPHERSON V. BLACKER,
146 U.S. 1, MORE THAN 75 YEARS AGO: 

     "THE CONSTITUTION DOES NOT PROVIDE THAT THE APPOINTMENT OF

  ELECTORS SHALL BE BY POPULAR VOTE, NOR THAT THE ELECTORS SHALL BE

VOTED FOR UPON A GENERAL TICKET, NOR THAT THE MAJORITY OF THOSE

  WHO EXERCISE THE ELECTIVE FRANCHISE CAN ALONE CHOOSE THE

  ELECTORS.  IT RECOGNIZES THAT THE PEOPLE ACT THROUGH THEIR

  REPRESENTATIVES IN THE LEGISLATURE, AND LEAVES IT TO THE

  LEGISLATURE EXCLUSIVELY TO DEFINE THE METHOD OF EFFECTING THE

  OBJECT. 

        .          .  .          . 

     "IN SHORT, THE APPOINTMENT AND MODE OF APPOINTMENT OF ELECTORS

  BELONG EXCLUSIVELY TO THE STATES UNDER THE CONSTITUTION OF THE

  UNITED STATES.  . . . "  ID., AT 27, 35. 

A STATE IS PERFECTLY FREE UNDER THE CONSTITUTION TO PROVIDE FOR THE
SELECTION OF ITS PRESIDENTIAL ELECTORS BY THE LEGISLATURE ITSELF.  SUCH
A PROCESS OF APPOINTMENT WAS IN FACT UTILIZED BY SEVERAL STATES
THROUGHOUT OUR EARLY HISTORY, AND BY ONE STATE, COLORADO, AS LATE AS
1876.  /3/  OR A STATE LEGISLATURE MIGHT NOMINATE TWO SLATES OF
ELECTORS, AND ALLOW ALL ELIGIBLE VOTERS OF THE STATE TO CHOOSE BETWEEN
THEM.  INDEED, MANY OF THE STATES FORMERLY PROVIDED FOR THE APPOINTMENT
OF PRESIDENTIAL ELECTORS BY VARIOUS KINDS OF JUST SUCH COOPERATIVE
ACTION OF THEIR LEGISLATURES AND THEIR ELECTORATES.  /4/ 

HERE, THE OHIO LEGISLATURE HAS GONE FURTHER, AND HAS PROVIDED FOR A
CHOICE BY THE STATE'S ELIGIBLE VOTERS AMONG SLATES OF ELECTORS PUT
FORWARD BY ALL POLITICAL PARTIES THAT MEET THE EVEN-HANDED REQUIREMENTS
OF LONG-STANDING STATE LAWS.  WE ARE TOLD TODAY, HOWEVER, THAT, DESPITE
THE POWER EXPLICITLY GRANTED TO THE STATE LEGISLATURES UNDER ART. II,
SEC. 1, THE LEGISLATURE OF OHIO NONETHELESS VIOLATED THE CONSTITUTION
IN PROVIDING FOR THE SELECTION OF ELECTORS IN THIS WAY.  I CAN PERCEIVE
NO SUCH CONSTITUTIONAL VIOLATION. 

I AGREE WITH MY BRETHREN THAT, IN SPITE OF THE BROAD LANGUAGE OF
ART. II, SEC. 1, A STATE LEGISLATURE IS NOT COMPLETELY UNFETTERED IN
CHOOSING WHATEVER PROCESS IT MAY WISH FOR THE APPOINTMENT OF ELECTORS. 
THREE SEPARATE CONSTITUTIONAL AMENDMENTS EXPLICITLY LIMIT A
LEGISLATURE'S POWER.  THE FIFTEENTH AMENDMENT MAKES CLEAR THAT IF
VOTERS ARE TO BE INCLUDED IN THE PROCESS, NO VOTER MAY BE EXCLUDED "ON
ACCOUNT OF RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE."  THE
NINETEENTH AMENDMENT MAKES EQUALLY CLEAR THAT NO VOTER MAY BE EXCLUDED
"ON ACCOUNT OF SEX."  AND THE TWENTY-FOURTH AMENDMENT PROHIBITS
EXCLUSION OF ANY VOTER "BY REASON OF FAILURE TO PAY ANY POLL TAX OR
OTHER TAX."  BUT NO CLAIM HAS BEEN OR COULD BE MADE IN THIS CASE THAT
ANY ONE OF THESE AMENDMENTS HAS BEEN VIOLATED BY OHIO. 

RATHER, IT IS SAID THAT OHIO HAS VIOLATED THE PROVISIONS OF THE
FOURTEENTH AMENDMENT.  THE COURT HOLDS THAT THE STATE HAS VIOLATED THAT
CLAUSE OF THE AMENDMENT WHICH PROHIBITS IT FROM DENYING "TO ANY PERSON
WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS."  AND TWO
CONCURRING OPINIONS EMPHASIZE FIRST AMENDMENT PRINCIPLES, MADE
APPLICABLE TO THE STATES THROUGH THE FOURTEENTH AMENDMENT'S GUARANTEES,
IN SUMMARILY CONCLUDING THAT OHIO'S STATUTORY SCHEME IS INVALID.  I
CONCEDE THAT THE FOURTEENTH AMENDMENT IMPOSES SOME LIMITATIONS UPON A
STATE LEGISLATURE'S FREEDOM TO CHOOSE A METHOD FOR THE APPOINTMENT OF
ELECTORS.  A STATE MAY NOT, FOR EXAMPLE, ADOPT A SYSTEM THAT
DISCRIMINATES ON GROUNDS OF RELIGIOUS OR POLITICAL BELIEF.  BUT I
CANNOT AGREE THAT OHIO'S SYSTEM VIOLATES THE FOURTEENTH AMENDMENT IN
ANY WAY. 

        II. 

IN VIEW OF THE BROAD LEEWAY SPECIFICALLY GIVEN THE STATES BY ART.
II, SEC. 1, OF THE CONSTITUTION, IT SEEMS CLEAR TO ME THAT THE BASIC
STANDARD OF CONSTITUTIONAL ADJUDICATION UNDER THE EQUAL PROTECTION
CLAUSE-- A STANDARD UNDER WHICH ONLY "INVIDIOUS DISCRIMINATION" IS
FORBIDDEN-- IS THE MOST STRINGENT TEST THAT PROPERLY CAN BE HELD
APPLICABLE HERE.  A SINGLE QUOTATION SHOULD SUFFICE TO SUMMARIZE THAT
STANDARD OF EQUAL PROTECTION: 

"THE CONSTITUTIONAL SAFEGUARD IS OFFENDED ONLY IF THE CLASSIFICATION
RESTS ON GROUNDS WHOLLY IRRELEVANT TO THE ACHIEVEMENT OF THE STATE'S
OBJECTIVE.  STATE LEGISLATURES ARE PRESUMED TO HAVE ACTED WITHIN THEIR
CONSTITUTIONAL POWER DESPITE THE FACT THAT, IN PRACTICE, THEIR LAWS
RESULT IN SOME INEQUALITY.  A STATUTORY DISCRIMINATION WILL NOT BE SET
ASIDE IF ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO JUSTIFY
IT."  MCGOWAN V. MARYLAND, 366 U.S. 420, 425-426.  THE PROVISIONS
ENACTED BY THE OHIO LEGISLATURE FULLY MEET THAT STANDARD.  /5/ 

THE LAWS OF OHIO CLASSIFY POLITICAL PARTIES, FOR PURPOSES OF ACCESS
TO THAT STATE'S BALLOT, ACCORDING TO SIZE AND STRENGTH.  /6/  THOSE
THAT TIMELY DEMONSTRATE WIDESPREAD SUPPORT IN THE STATE MAY SUBMIT A
SLATE OF PRESIDENTIAL ELECTORS TO OHIO'S VOTERS, WHILE THOSE THAT
NEITHER HAVE PARTICIPATED IN PAST ELECTIONS NOR CAN SHOW THE SUPPORT OF
15% OF THE VOTING PUBLIC 90 DAYS BEFORE A PRIMARY ELECTION MAY NOT. 
/7/  THE APPELLANTS CLAIM THAT THESE PROVISIONS DISCRIMINATE AGAINST
THE.  THEY ASSERT THAT ALTHOUGH OHIO MAY ESTABLISH "REASONABLE"
QUALIFYING STANDARDS SO THAT BALLOTS DO NOT BECOME UNWIELDY, THE
STRENGTH OF THE AMERICAN INDEPENDENT PARTY IS SO SUBSTANTIAL THAT NO
SUCH REQUIREMENT COULD POSSIBLY SUFFICE TO KEEP THE PARTY'S CANDIDATES
OFF THE PRESIDENTIAL BALLOT.  OHIO'S REQUIREMENTS ARE SO HIGH, THEY
CONTEND, THAT THE LEGISLATIVE PURPOSE BEHIND THOSE REQUIREMENTS CAN BE
ONLY TO KEEP NEW PARTIES-- EVEN THOSE THAT, LIKE THE AMERICAN
INDEPENDENT PARTY, HAVE GAINED CONSIDERABLY MORE THAN "SPLINTER"
SUPPORT-- OFF THE BALLOT.  AND SUCH REQUIREMENTS, THEY CONCLUDE, THUS
DENY PERSONS IN THEIR POSITION EQUAL PROTECTION OF THE LAWS. 

OHIO FOR ITS PART CONCEDES THAT THE LEGISLATIVE OBJECTIVE UNDERLYING
THE STATUTES IN QUESION IS TO PREVENT THE APPEARANCE ON ITS BALLOT OF
SLATES OF PRESIDENTIAL ELECTORS WHOSE SUBSTANTIAL PARTY SUPPORT HAS NOT
BEEN TIMELY DEMONSTRATED.  THAT THE BASIC CLASSIFICATION DRAWN BY THE
PROVISIONS IS NOT "IRRELEVANT TO THE ACHIEVEMENT OF THE STATE'S
OBJECTIVE"-- THE TRADITIONAL STANDARD FOR JUDGING THE VALIDITY OF A
LEGISLATIVE CLASSIFICATION UNDER THE EQUAL PROTECTION CLAUSE-- IS
CLEAR.  THE COURT SEEMS TO CONCEDE AS MUCH, BUT NONETHELESS HOLDS THAT
THE OHIO PROVISIONS ARE INVALID-- A RESULT WHICH MAY REST IN PART, I
BELIEVE, UPON POSSIBLE DOUBTS REGARDING THE PERMISSIBILITY OF THE
LEGISLATIVE OBJECTIVE ITSELF.  THE PROPRIETY OF THAT OBJECTIVE IS,
THEN, A CRITICAL ISSUE FOR DETERMINATION.              III. 

I CAN DISCERN NO BASIS FOR THE POSITION THAT OHIO'S OBJECTIVE IS IN
ANY WAY AN ILLEGITIMATE ONE.  SURELY A STATE MAY JUSTIFIABLY ASSERT AN
INTEREST IN SEEKING THAT ITS PRESIDENTIAL ELECTORS VOTE FOR THE
CANDIDATE BEST ABLE TO DRAW THE SUPPORT OF A MAJORITY OF VOTERS WITHIN
THE STATE.  BY PREVENTING PARTIES THAT HAVE NOT DEMONSTRATED TIMELY AND
WIDESPREAD SUPPORT FROM GAINING PLACES ON ITS BALLOT, OHIO'S PROVISIONS
TEND TO GUARD AGAINST THE POSSIBILITY THAT SMALL-PARTY CANDIDATES WILL
DRAW ENOUGH SUPPORT TO PREVENT EITHER OF THE MAJOR CONTENDERS FROM
OBTAINING AN ABSOLUTE MAJORITY OF VOTES-- AND AGAINST THE CONSEQUENT
POSSIBILITY THAT ELECTION MAY BE SECURED BY CANDIDATES WHO GAIN A
PLURALITY BUT WHO ARE, VIS-A-VIS THEIR PRINCIPAL OPPONENTS, PREFERRED
BY LESS THAN HALF OF THOSE VOTING.  /8/  SURELY THE ATTAINMENT OF THESE
OBJECTIVES IS WELL WITHIN THE SCOPE OF A STATE'S AUTHORITY UNDER OUR
CONSTITUTION.  ONE MAY PERHAPS DISAGREE WITH THE POLITICAL THEORY ON
WHICH THE OBJECTIVES ARE BASED, BUT IT IS INCONCEIVABLE TO ME THAT THE
CONSTITUTION IMPOSES ON THE STATES A POLITICAL PHILOSOPHY UNDER WHICH
THEY MUST BE SATISFIED TO AWARD ELECTION ON THE BASIS OF A PLURALITY
RATHER THAN A MAJORITY VOTE. 

IN PURSUING THIS INTEREST OHIO HAS, AT THE SAME TIME, NOT COMPLETELY
PREVENTED NEW PARTIES FROM GAINING ACCESS TO THAT STATE'S BALLOT.  IT
HAS AUTHORIZED BALLOT POSITION FOR PARTIES THAT CAN DEMONSTRATE BY
PETITION THE SUPPORT OF 15% OF THE VOTING PUBLIC 90 DAYS BEFORE A
PRIMARY ELECTION IS TO BE HELD.  MY BRETHREN SEEM TO SUGGEST THAT THE
PERCENTAGE FIGURE IS SET TOO HIGH, AND THE DATE TOO EARLY.  BUT I
CANNOT JOIN IN THIS KIND OF SECOND-GUESSING.  WHILE NECESSARILY
ARBITRARY, OHIO'S STANDARDS CAN ONLY BE TAKEN TO REPRESENT REASONABLE
ATTEMPTS AT ACCOMMODATING THE CONFLICTING INTERESTS INVOLVED.  /9/ 

ALTHOUGH OHIO'S PROVISIONS DO NOT FREEZE THE REPUBLICAN AND
DEMOCRATIC PARTIES INTO THE STATE'S ELECTION STRUCTURE BY SPECIFIC
REFERENCE TO THOSE PARTIES, IT IS TRUE THAT ESTABLISHED PARTIES, ONCE
THEY BECOME PARTICIPANTS IN THE ELECTORAL PROCESS, CONTINUE TO ENJOY
BALLOT POSITION SO LONG AS THEY HAVE POLLED 10% OF THE VOTE IN THE MOST
RECENT OHIO GUBERNATORIAL ELECTION.  IT IS SUGGESTED THAT THE DISPARITY
BETWEEN THIS FIGURE AND THE 15% REQUIREMENT APPLICABLE TO NEW PARTIES
IS INVIDIOUSLY DISCRIMINATORY.  BUT I CANNOT ACCEPT THE THEORTY THAT
OHIO IS CONSTITUTIONALLY COMPELLED TO APPLY PRECISELY THE SAME
NUMERICAL TEST IN DETERMINING WHETHER ESTABLISHED PARTIES ENJOY
WIDESPREAD SUPPORT AS IT APPLIES IN DETERMINING THAT QUESTION WITH
REGARD TO NEW PARTIES. 

IT IS BY NO MEANS CLEAR TO ME THAT AS AN ABSTRACT MATTER THERE ARE
NO DIFFERENCES BETWEEN PARTIES THAT HAVE LONG BEEN ON THE BALLOT IN A
STATE AND THOSE THAT HAVE NOT, SUCH AS MIGHT JUSTIFY DISPARATE
STANDARDS FOR DETERMINING IN THOSE TWO CLASSES OF CASES WHEN WIDESPREAD
SUPPORT, REQUIRED FOR BALLOT POSITION, HAS BEEN DEMONSTRATED.  IN ANY
EVENT, I CANNOT CONCLUDE THAT THE DISPARITY INVOLVED HERE DENIES EQUAL
PROTECTION OF THE LAWS.  THE DIFFERENCE IN FIGURES IS A DIFFERENCE
BETWEEN THE REQUIREMENTS FOR GETTING ON AND STAYING ON THE BALLOT.  IT
SEEMS TO ME TO BE WELL WITHIN THE STATE'S POWERS TO SET SOMEWHAT
DIFFERENT STANDARDS FOR THOSE TWO REQUIREMENTS, SO LONG AS IT APPLIES
THEM UNIFORMLY TO ALL POLITICAL PARTIES.  THE ONLY REMAINING ARGUMENT
WOULD SEEM TO BE THAT THE REPUBLICAN AND DEMOCRATIC PARTIES NEVER HAD
TO MEET THE 15% REQUIREMENT:  THEY WERE ON THE BALLOT IN OHIO AT THE
TIME THE STATUTORY SHCEME WAS ENACTED, AND SO HAVE HAD ONLY TO MAKE
CERTAIN THEY REMAIN ON BY MEETING THE 10% STANDARD.  BUT THE OHIO
LEGISLATURE COULD WELL HAVE TAKEN NOTICE AT THE TIME THE PROVISIONS
WERE ENACTED THAT THE PARTIES WHICH HAD POLLED OVER 10% OF THE VOTE IN
THE MOST RECENT GUBERNATORIAL ELECTION-- THE REPUBLICAN AND DEMOCRATIC
PARTIES-- HAD BOTH DEMONSTRATED STRENGTH FAR BEYOND THE 15% FIGURE
SPECIFIED FOR BALLOT ENTRY BY NEW PARTIES.  IT SEEMS TO ME TOTALLY
UNREALISTIC, THEREFORE, TO CONCLUDE THAT THIS MINOR DISPARITY IN
STANDARDS CANNOT BE JUSTIFIED BY "ANY STATE OF FACTS (THAT) REASONABLY
MAY BE CONCEIVED."  MCGOWAN V. MARYLAND, SUPRA, AT 426. 

        IV. 

THE COURT'S OPINION APPEARS TO CONCEDE THAT THE STATE'S INTEREST IN
ATTEMPTING TO ENSURE THAT A MINORITY OF VOTERS DO NOT THWART THE WILL
OF THE MAJORITY IS A LEGITIMATE ONE, BUT SUMMARILTY ASSERTS THAT THIS
LEGITIMATE INTEREST CANNOT CONSTITUTIONALLY BE VINDICATED.  THAT
ASSERTION SEEMS TO ECHO THE CLAIM OF MY CONCURRING BRETHREN-- A CLAIM
NOT MADE BY THE APPELLANTS-- THAT OHIO'S STATUTORY REQUIREMENTS IN SOME
WAY INFRINGE UPON FIRST AMENDMENT RIGHTS.  I CANNOT AGREE. 

AS THE LANGUAGE OF ART. II, SEC. 1, AND A GREAT DEAL OF HISTORY
UNDER THAT SECTION MAKE CLEAR, THERE IS NO CONSTITUTIONAL RIGHT TO VOTE
FOR PRESIDENTIAL ELECTORS.  /10/  I TAKE IT, THEREFORE, THAT THE FIRST
AMENDMENT THEORY OF MY BRETHREN RESTS ON THE VIEW THAT, DESPITE THE
LEGITIMACY OF THE OBJECTIVE UNDERLYING OHIO'S LAWS, THOSE LAWS
NONETHELESS HAVE THE EFFECT OF STIFLING THE ACTIVITY OF PERSONS WHO
DISAGREE WITH THE MAJOR POLITICAL PARTIES NOW IN EXISTENCE.  THE
CONCURRING OPINIONS CITE A SERIES OF DECISIONS PROTECTING WHAT HAS BEEN
TERMED THE FIRST AMENDMENT RIGHT OF ASSOCIATION.  NAACP V. BUTTON, 371
U.S. 415; BATES V. LITTLE ROCK, 361 U.S. 516; NAACP V. ALABAMA, 357
U.S. 449; THOMAS V. COLLINS, 323 U.S. 516; DEJONGE V. OREGON, 299 U.S.
353.  IN MY VIEW, HOWEVER, THE PRINCIPLES ON WHICH THOSE DECISIONS WERE
BASED DO NOT CALL FOR TODAY'S RESULT. 

IN THOMAS V. COLLINS AND DEJONGE V. OREGON, SUPRA, THE VERY DESIGN
OF THE STATUTES IN QUESTION WAS TO PREVENT PERSONS FROM FREELY MEETING
TOGETHER TO ADVANCE POLITICAL OR SOCIAL VIEWS.  OHIO'S LAWS CERTAINLY
ARE NOT OF THAT NATURE.  IN THE OTHER THREE CASES CITED, ALL INVOLVING
THE ACTIVITIES OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, THE STATUTES CHALLENGED WERE NOT ON THEIR FACE
CALCULATED TO AFFECT ASSOCIATIONAL RIGHTS.  WE WERE ABLE TO DETERMINE
WITH A GOOD DEAL OF CERTAINTY IN THOSE CASES, HOWEVER, (1) THAT
APPLICATION OF THE STATUTES TO THE NAACP WOULD CLEARLY RESULT IN A
CONSIDERABLE IMPAIRMENT OF THOSE RIGHTS, AND (2) THAT THE INTEREST SAID
TO UNDERLIE THE STATUTES WAS INSUBSTANTIAL IN THE CONTEXTS PRESENTED. 
I BELIEVE THAT THOSE CONCLUSIONS SHOULD AS A GENERAL MATTER BE REGARDED
AS PREREQUISITES TO ANY HOLDING THAT LAWS SUCH AS THOSE INVOLVED HERE,
WHICH SERVE A LEGITIMATE STATE INTEREST BUT ARE SAID TO HAVE SOME
IMPACT ON FIRST AMENDMENT ACTIVITY, ARE INVALID.  CF. UNITED STATES V.
O'BRIEN, 391 U.S. 367. 

IN NAACP V. ALABAMA, SUPRA, FOR INSTANCE, WHERE THE NAACP WAS
ORDERED IN ACCORD WITH STATE LAW TO DISCLOSE ITS MEMBERSHIP LISTS, WE
OUTLINED THE ISSUES AS FOLLOWS: 

     "WE THINK THAT THE PRODUCTION ORDER, IN THE RESPECTS HERE
DRAWN

  IN QUESTION, MUST BE REGARDED AS ENTAILING THE LIKELIHOOD OF A

SUBSTANTIAL RESTRIANT UPON THE EXERCISE BY PETITIONER'S MEMBERS

  OF THEIR RIGHT TO FREEDOM OF ASSOCIATION.  PETITIONER HAS MADE AN

  UNCONTROVERTED SHOWING THAT ON PAST OCCASIONS REVELATION OF THE

  IDENTITY OF ITS RANK-AND-FILE MEMBERS HAS EXPOSED THESE MEMBERS

  TO ECONOMIC REPRISAL, LOSS OF EMPLOYMENT, THREAT OF PHYSICAL

  COERCION, AND OTHER MANIFESTATIONS OF PUBLIC HOSTILITY.  UNDER

  THESE CIRCUMSTANCES, WE THINK IT APPARENT THAT COMPELLED

  DISCLOSURE OF PETITIONER'S ALABAMA MEMBERSHIP IS LIKELY TO AFFECT

  ADVERSELY THE ABILITY OF PETITIONER AND ITS MEMBERS TO PURSUE

THEIR COLLECTIVE EFFORT TO FOSTER BELIEFS WHICH THEY ADMITTEDLY

  HAVE THE RIGHT TO ADVOCATE, IN THAT IT MAY INDUCE MEMBERS TO

  WITHDRAW FROM THE ASSICIATION AND DISSUADE OTHERS FROM JOINING IT

  BECAUSE OF FEAR OF EXPOSURE OF THEIR BELIEFS SHOWN THROUGH THEIR

  ASSOCIATIONS AND OF THE CONSEQUENCES OF THIS EXPOSURE. 

        .          . .          . 

     "WE TURN TO THE FINAL QUESTION WHETHER ALABAMA HAS
DEMONSTRATED

  AN INTEREST IN OBTAINING THE DISCLOSURES IT SEEKS FROM PETITIONER

  WHICH IS SUFFICIENT TO JUSTIFY THE DETERRENT EFFECT WHICH WE HAVE

  CONCLUDED THESE DISCLOSURES MAY WELL HAVE ON THE FREE EXERCISE BY

  PETITIONER'S MEMBERS OF THEIR CONSTITUTIONALLY PROTECTED RIGHT OF

  ASSOCIATION.  . . .

        .          .  .          . 

     " . . . THE EXCLUSIVE PURPOSE (OF THE STATE AUTHORITIES) WAS
TO

  DETERMINE WHETHER PETITIONER WAS CONDUCTING INTRASTATE BUSINESS

  IN VIOLATION OF THE ALABAMA FOREIGN CORPORATION REGISTRATION

  STATUTE, AND THE MEMBERSHIP LISTS WERE EXPECTED TO HELP RESOLVE

  THIS QUESTION.  THE ISSUES IN THE LITIGATION COMMENCED BY ALABAMA

BY ITS BILL IN EQUITY WERE WHETHER THE CHARACTER OF PETITIONER

  AND ITS ACTIVITIES IN ALABAMA HAD BEEN SUCH AS TO MAKE PETITIONER

  SUBJECT TO THE REGISTRATION STATUTE, AND WHETHER THE EXTENT OF

  PETITIONER'S ACTIVITIES WITHOUT QUALIFYING SUGGESTED ITS

  PERMANENT OUSTER FROM THE STATE.  WITHOUT INTIMATING THE

  SLIGHTEST VIEW UPON THE MERITS OF THESE ISSUES, WE ARE UNABLE TO

  PERCEIVE THAT THE DISCLOSURE OF THE NAMES OF PETITIONER'S

  RANK-AND-FILE MEMBERS HAS A SUBSTANTIAL BEARING ON EITHER OF

  THEM.  . . . "  357 U.S.,AT 462-464. 

AND IN BATES V. LITTLE ROCK, SUPRA, WHERE AN ALMOST IDENTICAL
REQUIREMENT WAS INVOLVED, WE STATED: 

   "ON THIS RECORD IT SUFFICIENTLY APPEARS THAT COMPULSORY

  DISCLOSURE OF THE MEMBERSHIP LISTS OF THE LOCAL BRANCHES OF THE

  NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE WOULD

  WORK A SIGNIFICANT INTERFERENCE WITH THE FREEDOM OF ASSOCIATION

  OF THEIR MEMBERS.  THERE WAS SUBSTANTIAL UNCONTROVERTED EVIDENCE

  THAT PUBLIC IDENTIFICATION OF PERSONS IN THE COMMUNITY AS MEMBERS

  OF THE ORGANIZATIONS HAD BEEN FOLLOWED BY HARASSMENT AND THREATS

  OF BODILY HARM.  THERE WAS ALSO EVIDENCE THAT FEAR OF COMMUNITY

 HOSTILITY AND ECONOMIC REPRISALS THAT WOULD FOLLOW PUBLIC

  DISCLOSURE OF THE MEMBERSHIP LISTS HAD DISCOURAGED NEW MEMBERS

  FROM JOINING THE ORGANIZATIONS AND INDUCED FORMER MEMBERS TO

  WITHDRAW.  THE REPRESSIVE EFFECT, WHILE IN PART THE RESULT OF

  PRIVATE ATTITUDES AND PRESSURES, WAS BROUGHT TO BEAR ONLY AFTER

  THE EXERCISE OF GOVERNMENTAL POWER HAD THREATENED TO FORCE

  DISCLOSURE OF THE MEMBERS' NAMES.  . . . THUS, THE THREAT OF

  SUBSTANTIAL GOVERNMENT ENCROACHMENT UPON IMPORTANT AND

  TRADITIONAL ASPECTS OF INDIVIDUAL FREEDOM IS NEITHER SPECULATIVE

  NOR REMOTE. 

      "DECISION IN THIS CASE MUST FINALLY TURN, THEREFORE, ON
WHETHER

  THE CITIES AS INSTRUMENTALITIES OF THE STATE HAVE DEMONSTRATED SO

  COGENT AN INTEREST IN OBTAINING AND MAKING PUBLIC THE MEMBERSHIP

  LISTS OF THESE ORGANIZATIONS AS TO JUSTIFY THE SUBSTANTIAL

  ABRIDGMENT OF ASSOCIATIONAL FREEDOM WHICH SUCH DISCLOSURES WILL

  EFFECT.  . . .

        .          .          .          . 

     "IN THIS RECORD WE CAN FIND NO RELEVANT CORRELATION BETWEEN
THE

POWER OF THE MUNICIPALITIES TO IMPOSE OCCUPATIONAL LICENSE TAXES

  AND THE COMPULSORY DISCLOSURE AND PUBLICATION OF THE MEMBERSHIP

  LISTS OF THE LOCAL BRANCHES OF THE NATIONAL ASSOCIATION FOR THE

  ADVANCEMENT OF COLORED PEOPLE.  . . . "  361 U.S.,AT 523-525. 

  /11/ 

HERE, THERE CERTAINLY IS NO COMPARABLE SHOWING THE OHIO'S BALLOT
REQUIREMENTS HAVE ANY SUBSTANTIAL IMPACT ON THE ATTEMPTS OF POLITICAL
DISSIDENTS TO ORGANIZE EFFECTIVELY.  SUCH PERSONS ARE ENTIRELY FREE TO
ASSEMBLE, SPEAK, WRITE, AND PROSELYTIZE AS THEY SEE FIT.  THEY ARE FREE
EITHER TO ATTEMPT TO MODIFY THE CHARACTER OF THE ESTABLISHED MAJOR
PARTIES OR TO GO THEIR OWN WAY AND SET UP SEPARATE POLITICAL
ORGANIZATIONS.  AND IF THEY CAN TIMELY DEMONSTRATE THAT THEY HAVE
SUBSTANTIAL SUPPORT WITHIN THE STATE-- ACCORDING TO OHIO'S REASONABLE
STANDARDS FOR DECIDING THAT QUESTION-- THEY MAY SECURE BALLOT POSITION
FOR THE CANDIDATES THEY SUPPORT.  OHIO HAS RESTRICTED ONLY THEIR
ABILITY TO SECURE BALLOT POSITION WITHOUT DEMONSTRATING THAT SUPPORT. 
TO ME THE CONCLUSION THAT THAT SINGLE DISABILITY IN ANY WAY
SIGNIFICANTLY IMPAIRS THEIR FIRST AMENDMENT RIGHTS IS SHEER
SPECULATION.  AS MY BRETHREN'S SURVEYS OF BALLOT REQUIREMENTS IN THE
VARIOUS STATES SUGGEST, THE PRESENT TWO-PARTY SYSTEM IN THIS COUNTRY IS
THE PRODUCT OF SOCIAL AND POLITICAL FORCES RATHER THAN OF LEGAL
RESTRICTIONS ON MINORITY PARTIES.  THIS COURT HAS BEEN SHOWN NEITHER
THAT IN STATES WITH MINIMAL BALLOT RESTRICTIONS THIRD PARTIES HAVE
FLOURISHED, NOR THAT IN STATES WITH MORE DIFFICULT REQUIREMENTS THEY
ARE MORIBUND.  MERE SPECULATION OUGHT NOT TO SUFFER TO STRIKE DOWN A
STATE'S DULY ENACTED LAWS. 

NOR, I THINK, CAN WE WITH ANY CONFIDENCE CONCLUDE THAT OHIO'S
INTEREST IN ATTEMPTING TO ENSURE THAT THE WILL OF THE MAJORITY SHALL
PREVAIL IS AN INSUBSTANTIAL ONE.  IT REQUIRES MORE INSENSITIVITY TO
CONSTITUTIONAL PRINCIPLES OF FEDERALISM THAN I POSSESS TO TELL POHIO
THAT THAT INTEREST IS, ACCORDING TO THIS COURT'S SCALE OF VALUES,
SOMEHOW UNWORTHY OF IMPLEMENTATION.  /12/  I CANNOT CONCLUDE,
THEREFORE, THAT FIRST AMENDMENT PRINCIPLES CALL FOR THE RESULT REACHED
TODAY. 

        V. 

IT IS THOUGHT BY A GREAT MANY PEOPLE THAT THE ENTIRE ELECTORAL
COLLEGE SYSTEM OF PRESIDENTIAL SELECTION SET UP BY THE CONSTITUTION IS
AN ANACHRONISM IN NEED OF MAJOR OVERHAUL.  /13/  AS A CITIZEN, I HAPPEN
TO SHARE THAT VIEW.  BUT THIS COURT MUST FOLLOW THE CONSTITUTION AS IT
IS WRITTEN, AND ART. II, SEC. 1, VESTS IN THE STATES THE BROAD
DISCRETION TO SELECT THEIR PRESIDENTIAL ELECTORS AS THEY SEE FIT.  THE
METHOD OHIO HAS CHOSEN MAY BE UNWISE AS A MATTER OF POLICY, BUT I
CANNOT AGREE THAT IT VIOLATES THE CONSTITUTION.  /14/ 

/0/  (REPORTER'S NOTE:  FOR MR. JUSTICE STEWART'S SEPARATE STATEMENT
IN NO. 544, SOCIALIST LABOR PARTY ET AL. V. RHODES, GOVERNOR OF OHIO,
ET AL., SEE ANTE, P. 35. 

/1/  U.S. CONST., ART. II, SEC. 1.  THIS PROVISION REPRESENTED A
COMPROMISE AMONG SEVERAL CONFLICTING VIEWS EXPRESSED AT THE
CONSTITUTIONAL CONVENTION REGARDING THE MOST SALUTARY METHOD FOR
CHOOSING A PRESIDENT, MOST OF WHICH FAVORED SOME METHOD OTHER THAN
POPULAR ELECTION.  SEE MCPHERSON V. BLACKER, 146 U.S. 1, 28. 

/2/  U.S. CONST., AMDT. 12.  THE TWELFTH AMENDMENT ALSO SPECIFIES
THE PROCEDURES FOR SELECTING A PRESIDENT AND VICE PRESIDENT IN THE
EVENT THAT NO CANDIDATE RECEIVES A MAJORITY OF VOTES IN THE ELECTORAL
COLLEGE. 

/3/  SEE MCPHERSON V. BLACKER, SUPRA, AT 35. 

/4/  (VARIOUS MODES OF CHOOSING THE ELECTORS WERE PURSUED, AS, BY
THE LEGISLATURE ITSELF ON JOINT BALLOT; BY THE LEGISLATURE THROUGH A
CONCURRENT VOTE OF THE TWO HOUSES; BY VOTE OF THE PEOPLE FOR A GENERAL
TICKET; BY VOTE OF THE PEOPLE IN DISTRICTS; BY CHOICE PARTLY BY THE
PEOPLE VOTING IN DISTRICTS AND PARTLY BY THE LEGISLATURE; BY CHOICE BY
THE LEGISLATURE FROM CANDIDATES VOTED FOR BY THE PEOPLE IN DISTRICTS;
AND IN OTHER WAYS.  . . . "  MCPHERSON V. BLACKER, SUPRA, AT 29. 

FOR A FULLER DESCRIPTION OF THE DIVERSE METHODS PURSUED BY THE
STATES IN APPOINTING THEIR ELECTORS UNDER ART. II, SEC. 1, DURING THIS
COUNTRY'S FIRST CENTURY OF CONSTITUTIONAL EXPERIENCE, SEE ID., AT 26
35. 

/5/  IT IS CLEAR THAT THIS COURT'S DECISIONS IN SUCH CASES AS BAKER
V. CARR, 369 U.S. 186; GRAY V. SANDERS, 372 U.S. 368; AND REYNOLDS V.
SIMS, 377 U.S. 533, ALL INVOLVING THE DIRECT POPULAR ELECTION OF
CANDIDATES TO STATE OR FEDERAL OFFICE, DO NOT CONTROL THE ISSUES IN
THIS CASE.  INDEED, NO OPINION TODAY SUGGESTS THAT THOSE CASES ARE
APPOSITE.  THEY SUSTAINED THE RIGHT OF A VOTER TO CASE A BALLOT WHOSE
NUMERICAL WEIGHT IS THE EQUAL OF THAT OF ANY OTHER VOTE CAST WITHIN THE
JURISDICTION IN QUESTION.  NO CLAIM IS MADE IN THIS CASE THAT OHIO HAS
IN ANY WAY VIOLATED THAT RIGHT. 

/6/  THE APPELLANTS PLAINLY DO NOT OBJECT TO WORKING THROUGH OR
VOTING FOR CANDIDATES OF PARTISAN POLITICAL ORGANIZATIONS, AND I DO NOT
UNDERSTAND THEM TO CLAIM DISCRIMINATION ON THE BASIS OF OHIO'S FAILURE
TO ALLOW ACCESS TO ITS PRESIDENTIAL BALLOT VIA AN "INDEPENDENT
NOMINATING PETITION." 

/7/  APPELLANTS HAVE CITED US TO A COMPLEX GROUP OF OHIO STATUTES
WHICH THEY SAY ARE RELEVANT TO THE PARTICIPATION OF POLITICAL PARTIES
IN THAT STATE'S PRESIDENTIAL ELECTIONS.  SEE OHIO REV. CODE SECS.
3505.10, 3513.05, 3513.11, 3513.19, 3513.191, 3517.01-3517.04.  IT IS
NOT ENTIRELY CLEAR THAT ALL OF THOSE PROVISIONS ARE APPLICABLE TO
PARTIES PARTICIPATING IN THE ELECTORAL PROCESS FOR THE FIRST TIME.  BUT
WE NEED NOT EXAMINE THAT QUESTION SINCE IN ANY EVENT THE APPELLANTS
CLEARLY FAILED TO FILE WITH THE SECRETARY OF STATE OF OHIO ON FEBRUARY
7 OF THIS YEAR, 90 DAYS BEFORE THE STATE'S PRIMARY ELECTION, A PETITION
SIGNED BY A NUMBER OF VOTERS EQUAL TO 15% OF THE NUMBER PARTICIPATING
IN OHIO'S LAST GUBERNATORIAL ELECTION.  OHIO REV. CODE SECS. 3505.10,
3517.01. 

/8/  THIS INTEREST, WHICH SEVERAL STATES HAVE CHOSEN TO PROTECT IN
THE CONTEXT OF STATE AND LOCAL PRIMARY CONTESTS BY PROVIDING FOR RUNOFF
ELECTIONS, MAY BE ILLUSTRATED BY A HYPOTHETICAL EXAMPLE.  ASSUME A
STATE IN WHICH A DISSIDENT FACTION OF ONE OF THE TWO MAJOR PARTIES--
PARTY A-- BECOMES DISSATISFIED WITH THAT PARTY'S NOMINEES AND SETS
ITSELF UP AS A "THIRD PARTY"-- PARTY C-- PUTTING FORWARD CANDIDATES OF
PARTY A TO THOSE OF PARTY B. A SITUATION IS POSSIBLE IN WHICH PARTY B'S
CANDIDATES POLL, FOR EXAMPLE, 46% OF THE VOTE, PARTY A'S CANDIDATES
44%, AND PARTY C'S CANDIDATES 10%.  PARTY B'S CANDIDATES WOULD IN SUCH
A SITUATION BE ELECTED BY PLURALITY VOTE.  IN AN ELECTION INVOLVING
ONLY THE CANDIDATES OF PARTIES A AND B, HOWEVER, THOSE PERSONS
PREFERRING PARTY C'S CANDIDATES MIGHT WELL HAVE VOTED OVERWHELMINGLY
FOR PARTY A'S, THUS GIVING PARTY A'S CANDIDATES A SUBSTANTIAL MAJORITY
VICTORY. 

/9/  THE DATE SPECIFIED, FOR INSTANCE, IS RELATED TO OHIO'S
REQUIREMENT THAT ALL POLITICAL PARTIES HOLD PRIMARY ELECTIONS-- ANOTHER
PROVISION THAT IS, IT SEEMS TO ME, WELL WITHIN THE STATE'S POWER TO
ENACT. 

/10/  CF. MINOR V. HAPPERSETT, 21 WALL.  162, 178: 

"(THE CONSTITUTION OF THE UNITED STATES DOES NOT CONFER THE RIGHT OF
SUFFRAGE UPON ANY ONE.  . . . " 

/11/  THE NAACP CASES, FURTHERMORE, HELD INVALID ONLY THE
APPLICATION OF THE STATE LAWS IN QUESTION TO THE PARTIES INVOLVED. 
HERE, HOWEVER, OHIO IS TOLD, AS I READ THE OPINION OF THE COURT AND THE
CONCURRING OPINIONS, THAT IT CANNOT IN ANY CIRCUMSTANCES VALIDLY
ENFORCE ITS BALLOT REQUIREMENTS. 

/12/  MR BROTHER HARLAN SUGGESTS THAT OHIO'S INTEREST MAY BE
PROTECTED IN "LESS RESTRICTIVE" WAYS.  IN LIGHT OF THE VIEWS I HAVE
STATED ABOVE, I DO NOT SEE WHY OHIO SHOULD BE COMPELLED TO UTILIZE ONE
METHOD FOR ACHIEVING ITS ENDS RATHER THAN ANOTHER.  IN ANY EVENT, EACH
OF THE METHODS MENTIONED BY MR. JUSTICE HARLAN APPEARS TO ME TO ENTAIL
CONSEQUENCES WHICH ARGUABLY WOULD FRUSTRATE OTHER LEGITIMATE STATE
INTERESTS.  NOR DO ALL OF THEM SERVE AS EFFECTIVELY TO PROMOTE THE
INTEREST IN QUESTION HERE AS DOES THE STATUTORY SCHEME THE OHIO
LEGISLATURE HAS IN FACT ENACTED.  I DO NOT THINK PROBLEMS SUCH AS THOSE
RAISED IN THIS CASE CAN BE SOLVED BY MEANS OF FACILE AND UNELABORATED
SUGGESTIONS OF "LESS RESTRICTIVE ALTERNATIVES"; ISSUES OF LEGISLATIVE
POLICY ARE TOO COMPLEX FOR SUCH EASY ANSWERS TO BE SATISFACTORY. 

/13/  SIMILAR SUGGESTIONS WERE BEING MADE AS EARLY AS 1804, AT THE
TIME OF THE ADOPTION OF THE TWELFTH AMENDMENT.  SEE MCPHERSON V.
BLACKER, 146 U.S. 1, 33. 

/14/  FOR THE REASONS STATED IN THIS OPINION, AND THE FURTHER
REASONS STATED IN PART IV OF THE OPINION OF THE COURT, I AGREE WITH THE
COURT'S DENIAL OF EQUITABLE RELIEF TO THE APPELLANTS IN NO. 544, THE
SOCIALIST LABOR PARTY CASE. 

MR. JUSTICE WHITE, DISSENTING IN NO. 543 AND CONCURRING IN PNO. 
544. 

I AGREE WITH MUCH OF WHAT MY BROTHER STEWART SAYS IN HIS DISSENTING
OPINION IN NO. 543.  IN MY VIEW, NEITHER THE DUE PROCESS CLAUSE NOR THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT PROHIBITS OHIO FROM
REQUIRING THAT THE APPOINTMENT OF PRESIDENTIAL ELECTORS BE CARRIED OUT
THROUGH THE POLITICAL PARTY PROCESS.  THE COURT DOES NOT HOLD THAT OHIO
MUST ACCORD BALLOT POSITION TO THOSE WHO ARE UNWILLING TO WORK THROUGH
THE FRAMEWORK OF AN ESTABLISHED OR NASCENT POLITICAL PARTY, NOR DO I
UNDERSTAND APPELLANTS TO MAKE THIS CONTENTION.  IN THIS CONNECTION,
THERE IS NOT SUGGESTION IN THE MAJORITY OPINION THAT OHIO, MERELY BE
REQUIRING POTENTIAL CANDIDATES TO PARTICIPATE IN A PRIMARY, HAS ACTED
UNREASONABLY.  INDEED, THIS REQUIREMENT PROVIDES THE OPPORTUNITY FOR
THE PRESENTATION AND WINNOWING OUT OF CANDIDATES WHICH IS SURELY A
LEGITIMATE OBJECTIVE OF STATE POLICY.  NOR IS IT HELD THAT OHIO'S
REQUIREMENT, PURSUANT TO THIS OBJECTIVE, THAT PARTIES MUST SHOW THEIR
BASE OF POPULAR SUPPORT BY OBTAINING THE SIGNATURES OF 15% OF OHIO'S
GUBERNATORIAL VOTERS IS ITSELF UNREASONABLE. 

IN THE FACE OF SUCH REQUIREMENTS, WHICH NEITHER ALONE NOR IN
COMBINATION ARE UNCONSTITUTIONAL, I DO NOT UNDERSTAND HOW THE AMERICAN
INDEPENDENT PARTY MAY BE ORDERED ON THE BALLOT OVER THE OBJECTIONS OF
THE STATE.  THE INDEPENDENT PARTY HAS NOT COMPLIED WITH THE PROVISION
THAT IT SHOW A SUFFICIENT BASE OF POPULAR SUPPORT IN TIME FOR
PARTICIPATION IN A PRIMARY.  INDEED, THE PARTY MADE NO EFFORT
WHATSOEVER TO COMPLY WITH THESE PROVISIONS.  IT CLAIMS IT SECURED THE
NECESSARY NUMBER OF SIGNATURES BUT ADMITS IT WHOLLY IGNORDED THE
REQUIREMENT THAT THE PETITIONS BE FILED PRIOR TO THE PRIMARY ELECTION
DATE.  HAD IT FILED THEM, AND BEEN DENIED PARTICIPATION IN THE PRIMARY
OR THE ELECTION FOR FAILURE TO MEET SOME OTHER REQUIREMENT, THE CASE
WOULD BE VERY DIFFERENT.  BUT IT DID NOT EVEN COMMENCE JUDICIAL
CHALLENGE OF THE SIGNATURE REQUIREMENT, NOT TO MENTION GATHERING
SIGNATURES, IN TIME TO PARTICIPATE IN THE PRIMARY.  THE INDEPENDENT
PARTY IS IN NO POSITION TO COMPLAIN THAT IT WOULD HAVE BEEN IMPOSSIBLE
FOR ITS MEMBERS TO GATHER THE NECESSARY SIGNATURES-- WHICH THEY WERE IN
FACT ABLE TO ASSEMBLE SUBSEQUENTLY-- OR THAT IT MIGHT IN ITS PROGRESS
TOWARD BALLOT POSITION HAVE ENCOUNTERED SOME LATER OBSTACLE. 

THAT OTHER OHIO PROVISIONS RELATED TO LATER PHASES OF THE ELECTION
PROCESS MIGHT HAVE IMPOSED UNCONSTITUTIONAL BARRIERS TO BALLOT POSITION
IS NO REASON TO EXCUSE THE INDEPENDENT PARTY FROM COMPLYING WITH THOSE
PRECONDITIONS WHICH THE STATE MAY VALIDLY IMPOSE.  WHY A MAJORITY OF
THE COURT INSISTS ON HOLDING THE PRIMARY PETITION REQUIREMENT
IMPERMISSIBLE, NOT ON ITS OWN DEMERITS, BUT BECAUSE IT APPEARS IN THE
STATUTE BOOKS WITH MORE QUESTIONABLE PROVISIONS IS THE MAJOR MYSTERY OF
THE MAJORITY POSITION.  NEITHER THE INDEPENDENT NOR THE SOCIALIST LABOR
PARTY IS ENTITLED TO RELIEF IN THIS COURT. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

WE HAVE HAD BUT SEVEN DAYS TO CONSIDER THE IMPORTANT CONSTITUTIONAL
QUESTIONS PRESENTED BY THESE CASES.  THE RATIONALE OF THE OPINION OF
THE COURT, BASED BTH ON THE EQUAL PROTECTION CLAUSE AND THE FIRST
AMENDMENT GUARANTEE OF FREEDOM OF ASSOCIATION, WILL APPLY TO ALL
ELECTIONS, NATIONAL, STATE, AND LOCAL.  ALREADY, LITIGANTS FROM
ALABAMA, CALIFORNIA, ILLINOIS, AND VIRGINIA HAVE REQUESTED SIMILAR
RELIEF VIRTUALLY ON THE EVE OF THE 1968 PRESIDENTIAL ELECTION.  I THINK
IT FAIR TO SAY THAT THE RAMIFICATIONS OF OUR DECISION TODAY MAY BE
COMPARABLE TO THOSE OF BAKER V. CARR, 369 U.S. 186 (1962), A CASE WE
DELIBERATED FOR NEARLY A YEAR.  /1/  APPELLANTS' BELATED REQUESTS FOR
EXTRAORDINARY RELIEF HAVE COMPELLED ALL MEMBERS OF THIS COURT TO DECIDE
CASES OF THIS MAGNITUDE WITHOUT THE UNHURRIED DELIBERATION WHICH IS
ESSENTIAL TO THE FORMULATION OF SOUND CONSTITUTIONAL PRINCIPLES. 

        I.     I CANNOT AGREE THAT THE STATE OF OHIO SHOULD BE
COMPELLED TO PLACE THE CANDIDATES OF THE AMERICAN INDEPENDENT PARTY ON
THE BALLOT FOR THE IMPENDING PRESIDENTIAL ELECTION.  NOR CAN I DRAW A
DISTINCTION BETWEEN THIS PARTY AND THE SOCIALIST LABOR PARTY.  BOTH
SUITS WERE FILED IN JULY OF THIS YEAR, AND BOTH WERE DECIDED ON AUGUST
29, 1968.  THE FOLLOWING WEEK THE AMERICAN INDEPENDENT PARTY PETITIONED
THE CIRCUIT JUSTICE FOR ITS CIRCUIT FOR PROVISIONAL RELIEF, WHICH WAS
GRANTED ON SEPTEMBER 10.  THE SOCIALIST LABOR PARTY SOUGHT SIMILAR
RELIEF ONLY THREE DAYS AFTER THE SEPTEMBER 10 ORDER WAS ISSUED.  MR.
JUSTICE STEWART GRANTED PROVISIONAL RELIEF TO ONE, BUT DENIED IT TO THE
OTHER.  NO OHIO STATUTORY DEADLINE COMPELLED THAT RESULT, AND
PRESUMABLY OHIO COULD HAVE COMPLIED WITH AN ORDER GRANTING THE SAME
RELIEF TO BOTH PARTIES.  /2/  BOTH PARTIES SHOULD BE TREATED ALIKE;
OTHERWISE, WE ARE BOWING TO A SHOW OF STRENGTH RATHER THAN APPLYING
CONSTITUTIONAL PRINCIPLES. 

APPELLANTS HAVE INVOKED THE EQUITY JURISDICTION OF THE FEDERAL
COURTS.  PLACED IN THIS CONTEXT, THE LITIGATION BEFORE US PRESENTS AN
ISSUE NOT TREATED BY THE OPINION OF THE COURT:  DID THE DISTRICT COURT
ABUSE ITS DISCRETION IN DENYING THE EXTRAORDINARY EQUITABLE RELIEF
REQUESTED BY APPELLANTS?  /3/  A REVIEW OF THE FACTS BEFORE THE
DISTRICT COURT CONVINCES ME THAT IT DID NOT, AND THEREFORE THE
EMERGENCY RELIEF SOUGHT BY APPELLANTS SHOULD BE DENIED. 

THE SOCIALIST LABOR PARTY HAS BEEN AN ORGANIZED POLITICAL PARTY IN
OHIO SINCE THE END OF THE 19TH CENTURY, AND ALTHOUGH IT HAS NOT
ACHIEVED BALLOT PSOITION SINCE THE ENACTMENT IN 1948 OF THE LAWS IT
CHALLENGES, /4/  NOT UNTIL JULY 2, 1968, DID IT PRESS ITS CLAIMS FOR
EQUITABLE RELIEF.  SIMILARLY, THE SUPPORTERS OF GEORGE C. WALLACE DID
NOT INSTITUTE THEIR ACTION UNTIL JULY 29, 1968, ALTHOUGH EARLY IN 1967
GOVERNOR WALLACE HAD EXPRESSED INTEREST IN THE PRESIDENCY, /5/  AND, IN
THE SPRING OF THAT YEAR, HE VOICED CONCERN FOR THE RESTRICTIVE NATURE
OF OHIO'S QUALIFYING LAWS.  /6/ 

NEVERTHELESS, NEITHER THE AMERICAN INDEPENDENT PARTY NOR THE
SOCIALIST LABOR PARTY MADE AN EFFORT TO COMPLY WITH OHIO'S ELECTION
LAWS.  NOR HAS EITHER TIMELY INVOKED THE JURISDICTION OF THE COURTS. 
THAT BOTH HAD THE OPPORTUNITY TO DO SO CANNOT BE DENIED.  BECAUSE THE
STATE OF OHIO DOES NOT CHALLENGE THE VALIDITY OF THE SIGNATURES
GATHERED BY THE AMERICAN INDEPENDENT PARTY, A MAJORITY OF THIS COURT
ASSUMES THEY REFLECT THE STRENGTH OF THAT PARTY IN OHIO.  HOWEVER,
SINCE THE SIGNATURES WERE NOT SUBMITTED TO OHIO IN TIMELY COMPLIANCE
WITH THE STATE'S ELECTION LAWS, THEY HAVE NEVER BEEN VERIFIED; IN FACT,
APPELLANTS IN NO. 543 DID NOT SEEK TO FILE THEIR SIGNATURES UNTIL OVER
FIVE MONTHS AFTER THE STATUTORY FILING DATE.  /7/ 

DESPITE THESE DELAYS IN INSTITUTING SUIT AND THE FAILURE OF EITHER
PARTY TO MAKE AN EFFORT TO COMPLY WITH ANY OF OHIO'S ELECTION LAWS, THE
DISTRICT COURT ORDERED OHIO TO PROVIDE FOR WRITE-IN VOTING.  THIS
RELIEF GUARANTEED THAT EACH OHIO VOTER WOULD HAVE THE RIGHT TO VOTE FOR
THE CANDIDATE OF HIS CHOICE, INCLUDING THE CANDIDATES OF THESE TWO
PARTIES.  AT WORST, THEREFORE, DENYING APPELLANTS A POSITION ON THE
BALLOT FOR THE 1968 ELECTION PREVENTED THEIR CANDIDATES FROM COMPETING
ON A COMPLETELY EQUAL BASIS WITH THE CANDIDATES OF THE TWO MJAOR
PARTIES. 

THE IMMINENCE OF THE ELECTION, THE PARTIES' FAILURE TO COMPLY WITH
OHIO LAW AND THE DISTRICT COURT'S GRANT OF PARTIAL RELIEF MUST BE
CONSIDERED IN CONJUNCTION WITH THE NEED TO PROMOTE ORDERLY FEDERAL
STATE RELATIONSHIPS.  OUR REPORTS ARE REPLETE WITH DECISIONS CONCERNING
THE NATURE OF THE RELIEF TO BE AFFORDED IN THESE SENSITIVE AREAS, YET
THE OPINION OF THE COURT DOES NOT ADDRESS ITSELF TO THE PRINCIPLES OF
THESE CASES.  IN THE ANALOGOUS AREA OF LEGISLATIVE APPORTIONMENT, WE
HAVE OFTEN TOLERATED A TEMPORARY DILUTION OF VOTING RIGHTS TO PROTECT
THE LEGITIMATE INTERESTS OF THE STATES IN FASHIONING THEIR OWN ELECTION
LAWS, SEE, E.G., LUCAS V. COLORADO GENERAL ASSEMBLY, 377 U.S. 713, 739
(1964); CF. DAVIS V. MANN, 377 U.S. 678, 692-693 (1964); AND IN THE
AREA OF SCHOOL DESEGREGATION WE HAVE DEMONSTRATED EVEN GREATER
DEFERENCE TO THE STATES.  ON OCCASION, WE HAVE EVEN COUNSELED
ABSTENTION WHERE FIRST AMENDMENT RIGHTS HAVE BEEN ALLEGEDLY INFRINGED
BY STATE LEGISLATION.  SEE HARRISON V. NAACP, 360 U.S. 167 (1959). 

FOR EXAMPLE, IN WMCA, INC. V. LOMENZO, 377 U.S. 633 (1964), HOLDING
UNCONSTITUTIONAL THE APPORTIONMENT OF NEW YORK'S LEGISLATURE, WE STATED
THAT ON REMAND THE DISTRICT COURT "ACTING UNDER EQUITABLE PRINCIPLES,
MUST NOW DETERMINE WHETHER, BECAUSE OF THE IMMINENCE OF THAT ELECTION
AND IN ORDER TO GIVE THE NEW YORK LEGISLATURE AN OPPORTUNITY TO FASHION
A CONSTITUTIONALLY VALID LEGISLATIVE APPORTIONMENT PLAN, IT WOULD BE
DESIRABLE TO PERMIT THE 1964 ELECTION OF LEGISLATORS TO BE CONDUCTED
PURSUANT TO THE EXISTING (UNCONSTITUTIONAL) PROVISIONS, OR WHETHER
UNDER THE CIRCUMSTANCES THE EFFECTUATION OF APPELLANTS' RIGHT TO A
PROPERLY WEIGHTED VOICE IN THE ELECTION OF STATE LEGISLATORS SHOULD NOT
BE DELAYED BEYOND THE 1964 ELECTION."  /8/  ID., AT 655. 

GREEN V. COUNTY SCHOOL BOARD, 391 U.S. 430 (1968), DECIDED ONLY LAST
TERM, PROVIDES AN EVEN MORE STRIKING EXAMPLE OF OUR CONCERN FOR THE
NEED TO REFRAIN FROM USURPING THE AUTHORITY OF THE STATES IN AREAS
TRADITIONALLY ENTRUSTED TO THEM.  GREEN REACHED THIS COURT 13 YEARS
AFTER BROWN V. BOARD OF EDUCATION, 349 U.S. 294 (1955), REQUIRED THAT
SCHOOLS BE ESTABLISHED FREE OF RACIAL DISCRIMINATION WITH "ALL
DELIBERATE SPEED."  ALTHOUGH WE HELD IN GREEN THAT THE PARTICULAR
"FREEDOM-OF-CHOICE" PLAN ADOPTED BY THE SCHOOL BOARD DID NOT PASS
CONSTITUTIONAL MUSTER, THE CASE WAS REMANDED TO THE DISTRICT COURT SO
THAT THE SCHOOL BOARD COULD ONCE AGAIN ATTEMPT TO FORMULATE A
CONSTITUTIONAL PLAN. 

THE RESULT ACHIEVED HERE IS NOT COMPATIBLE WITH RECOGNIZED EQUITABLE
PRINCIPLES, NOR IS IT COMPATIBLE WITH OUR TRADITIONAL CONCERN,
MANIFESTED IN BOTH THE REAPPORTIONMENT AND SCHOOL DESEGREGATION CASES,
FOR PRESERVING THE PROPERLY EXERCISED POWERS OF THE STATES IN OUR
FEDERAL SYSTEM.  MOREOVER, IN NONE OF THESE ANALOGOUS AREAS DID WE DEAL
WITH AN EXPRESS CONSTITUTIONAL DELEGATION OF TO THE STATES.  THAT
DELEGATION IS UNEQUIVOCAL HERE.  U.S. CONST., ART. II, SEC. 1. 

THE NET RESULT OF THE COURT'S ACTION IS THAT THE COURT IS WRITING A
NEW PRESIDENTIAL ELECTION LAW FOR THE STATE OF OHIO WITHOUT GIVING THE
LEGISLATURE OR THE COURTS OF THAT STATE AN OPPORTUNITY TO APPRAISE
THEIR STATUTES IN LITIGATION /9/  OR TO ELIMINATE ANY CONSTITUTIONAL
DEFECTS PRIOR TO A DECISION BY THIS COURT.  GIVEN BOTH THE LATENESS OF
THE HOUR AND THE LEGITIMATE DEMANDS OF FEDERALISM, THE DISTRICT COURT
DID NOT ABUSE ITS DISCRETION IN DENYING THE EXTRAORDINARY RELIEF
APPELLANTS DEMANDED. 

        II. 

ALTHOUGH I BELIEVE THAT THE COURT BELOW PROPERLY EXERCISED ITS
DISCRETIONARY EQUITABLE POWERS, THIS LITIGATION INVOLVES FAR MORE THAN
A RESOLUTION OF WHETHER EITHER PARTY IS ENTITLED TO BALLOT POSITION FOR
THE 1968 ELECTION.  APPELLANTS' REQUEST FOR DECLARATORY RELIEF,
CHALLENGING THE CONSTITUTIONALITY OF OHIO'S SYSTEM OF CONDUCTING
PRESIDENTIAL ELECTIONS, HAS RAISED A QUESTION WHICH MAY BE FAIRLY
CLASSIFIED AS ONE OF FIRST IMPRESSION:  /10/  TO WHAT EXTEND MAY A
STATE, CONSISTENT WITH EQUAL PROTECTION AND THE FIRST AMENDMENT
GUARANTEE OF FREEDOM OF ASSOCIATION, IMPOSE RESTRICTIONS UPON A
CANDIDATE'S DESIRE TO BE PLACED UPON THE BALLOT?  AS I HAVE ALREADY
STATED, THE PRINCIPLES WHICH WOULD OF NECESSITY EVOLVE FROM AN ANSWER
TO THIS QUESTION COULD NOT BE CONFINED EITHER TO THE STATE OF OHIO OR
TO PRESIDENTIAL ELECTIONS. 

BOTH THE OPINION OF THIS COURT AND THAT OF THE DISTRICT COURT LEAVE
UNRESOLVED WHAT RESTRICTIONS, IF ANY, A STATE CAN IMPOSE.  ALTHOUGH
BOTH OPINIONS TREAT THE OHIO STATUTES AS A "PACKAGE," GIVING NEITHER
OHIO NOR THE COURTS ANY GUIDANCE, EACH CONTAINS INTIMATIONS THAT A
STATE CAN BE REASONABLE REGULATION CONDITION BALLOT POSITION UPON AT
LEAST THREE CONSIDERATIONS-- A SUBSTANTIAL SHOWING OF VOTER INTEREST IN
THE CANDIDATE SEEKING A PLACE ON THE BALLOT, A REQUIREMENT THAT THIS
INTEREST BE EVIDENCED SOMETIME PRIOR TO THE ELECTION, AND A PARTY
STRUCTURE DEMONSTRATING SOME DEGREE OF POLITICAL ORGANIZATION.  WITH
EACH OF THESE PROPOSITIONS I CAN AGREE.  I DO NOT BELIEVE, HOWEVER, AS
DOES MR. JUSTICE STEWART, THAT THE EQUAL PROTECTION CLAUSE HAS ONLY
ATTENUATED APPLICABILITY TO THE SYSTEM BY WHICH A STATE SEEKS TO
CONTROL THE SELECTION OF PRESIDENTIAL ELECTORS. 

WHATEVER MAY BE THE APPLICABLE CONSTITUTIONAL PRINCIPLES, APPELLANTS
AND THE STATE OF OHIO ARE ENTITLED TO KNOW WHETHER ANY OF THE VARIOUS
PROVISIONS ATTACKED IN THIS LITIGATION DO COMPORT WITH CONSTITUTIONAL
STANDARDS.  AS DEMONSTRATED BY ZWICKLER V. KOOTA, 389 U.S. 241 (1967),
/11/  THIS MATTER SHOULD BE FIRST RESOLVED BY THE COURT BELOW.  GIVEN
THE MAGNITUDE OF THE QUESTIONS PRESENTED AND THE NEED FOR UNHURRIED
DELIBERATION, I WOULD DISPOSE OF APPELLANTS' REQUEST FOR DECLARATORY
RELIEF IN A MANNER CONSISTENT WITH ZWICKLER BY A REMAND TO THE DISTRICT
COURT FOR A CLEARER DETERMINATION OF THE SERIOUS CONSTITUTIONAL
QUESTIONS RAISED IN THESE CASES. 

I MUST THEREFORE DISSENT FROM THE FAILURE OF THE COURT'S OPINION TO
EXPLORE OR DISPOSE ADEQUATELY OF THE DECLARATORY JUDGMENT ACTIONS, AS
WELL AS FROM THE GRANT OF EXTRAORDINARY RELIEF IN NO. 543. 

/1/  BAKER WAS ORIGINALLY ARGUED ON APRIL 19-20, 1961.  ON MAY 1,
1961, IT WAS SET FOR REARGUMENT AND WAS REARGUED ON OCTOBER 9, 1061. 
OUR DECISION WAS NOT ANNOUNCED UNTIL MARCH 26, 1962, OVER 11 MONTHS
AFTER THE ORIGINAL ARGUMENT. 

/2/  MR. JUSTICE STEWART BASED HIS DENIAL OF THE SOCIALIST LABOR
PARTY'S REQUEST FOR PROVISIONAL RELIEF UPON THE FOLLOWING
CONSIDERATIONS:  "THE LATE DATE ON WHICH THIS MOTION WAS PRESENTED, THE
ACTION ALREADY TAKEN BY THE OHIO AUTHORITIES, THE RELIEF ALREADY
GRANTED THE APPELLANTS BY THE DISTRICT COURT, AND THE FACT THAT THE
BASIC ISSUES THEY PRESENT WILL BE FULLY CANVASSED IN THE ARGUMENT OF
THE APPEAL IN WILLIAMS V. RHODES.  . . . "  HE DID NOT SUGGEST THAT THE
STATE OF OHIO MADE ANY REPRESENTATIONS THAT IT COULD NOT COMPLY WITH AN
ORDER GRANTING THE SOCIALIST LABOR PARTY THE SAME RELIEF ALREADY
GRANTED THE AMERICAN INDEPENDENT PARTY. 

I DO NOT THINK ANY SIGNIFICANCE SHOULD BE GIVEN TO THE FACT THAT THE
INTERIM RELIEF GRANTED BY MR. JUSTICE STEWART MADE IT PHYSICALLY
POSSIBLE TO PLACE THE AMERICAN INDEPENDENT PARTY ON THE BALLOT.  THIS
RELIEF, AS EXPLICITLY RECOGNIZED BY MR. JUSTICE STEWART, WAS GRANTED
SOLELY TO ALLOW OHIO TO COMPLY WITH ALL POSSIBLE ORDERS OF THIS COURT. 

/3/  THIS IS THE TRADITIONAL STANDARD FOR REVIEW OF THE DENIAL OF
EQUITABLE RELIEF.  SEE, E.G., BROTHERHOOD OF LOCOMOTIVE ENGINEERS V. M.
K.-T.R. CO., 363 U.S. 528, 535 (1960); UNITED FUEL GAS CO. V. PUBLIC
SERV. COMM'N, 278 U.S. 322, 326 (1929). 

/4/  APPELLANTS' COMPLAINT IN NO. 544, PP. 1-2. 

/5/  NEW YORK TIMES, JAN. 26, 1967, P. 20, COL. 3. 

/6/  COMMENCING IN LATE APRIL 1967, GOVERNOR WALLACE BEGAN A FOUR
DAY TOUR OF SELECTED NORTHERN STATES.  AT A PRESS CONFERENCE IN
PITTSBURGH ON APRIL 27 HE STATED THAT HE EXPECTED TO RUN FOR PRESIDENT
IN ALL 50 STATES AND THAT IT MIGHT BE NECESSARY TO INSTITUTE SUIT IN
STATES WHERE THIRD PARTIES HAD DIFFICULTY OBTAINING BALLOT POSITION. 
AIDES TO THE GOVERNOR MENTIONED CALIFORNIA AND OHIO AS STATES IN WHICH
DIFFICULTY MIGHT BE ENCOUNTERED.  NEW YORK TIMES, APRIL 28, 1967, P.
28, COL. 5. 

/7/  THE OHIO ELECTION LAWS REQUIRE THAT PETITIONS FOR A POSITION ON
THE OHIO BALLOT BE FILED 90 DAYS BEFORE THE STATE PRIMARY.  OHIO REV.
CODE SECS. 3513.256-3513.262, 3517.01 (1960 REPL.  VOL.).  APPELLANTS
IN NO. 543 CONCEDE IN THEIR BRIEF THAT THEIR DEADLINE WAS FEBRUARY 7,
1968, YET THEY APPARENTLY DID NOT ATTEMPT TO FILE THEIR PETITIONS UNTIL
LATE IN JULY.  APPELLANTS' BRIEF 86. 

/8/  THE PRIOR HISTORY OF PREISLER V. SECRETARY OF STATE, 279
F.SUPP.  952 (D.C.W.D. MO. 1967), PROBABLE JURISDICTION NOTED SUB NOM.
KIRKPATRICK V. PREISLER, 390 U.S. 390 U.S. 939 (1968), APTLY
DEMONSTRATES THE DEFERENCE WE HAVE PAID LEGISLATIVE ACTION IN THIS
AREA.  ON JANUARY 4, 1965, THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI HELD THAT THE 1961 MISSOURI CONGRESSIONAL
REDISTRICTING ACT WAS UNCONSTITUTIONAL, BUT IT REFUSED TO GRANT ANY
ADDITIONAL RELIEF "UNTIL THE LEGISLATURE OF THE STATE OF MISSOURI HAS
ONCE MORE HAD AN OPPORTUNITY TO DEAL WITH THE PROBLEM.  . . . "
PREISLER V. SECRETARY OF STATE, 238 F.SUPP.  187, 191 (D.C.W.D. MO.
1965).  THE MISSOURI GENERAL ASSEMBLY THEN ENACTED THE 1965
CONGRESSIONAL REDISTRICTING ACT.  ON AUGUST 5, 1966, THE DISTRICT COURT
HELD THIS NEW PLAN UNCONSTITUTIONAL, BUT IT NEVERTHELESS PERMITTED THE
1966 MISSOURI CONGRESSIONAL ELECTIONS TO BE CONDUCTED UNDER THE VOID
ACT.  PREISLER V. SECRETARY OF STATE, 257 F.SUPP.  953 (D.C.W.D. MO.
1966).  WE AFFIRMED ON JANUARY 9, 1967, SUB NOM. KIRKPATRICK V.
PREISLER, 385 U.S. 450.  IN 1967, THE MISSOURI GENERAL ASSEMBLY MADE
STILL ANOTHER ATTEMPT TO ENACT A CONSTITUTIONAL PLAN, BUT ON DECEMBER
29, 1967, THIS PLAN WAS ALSO INVALIDATED.  279 F.SUPP.  952.     /9/
CF. SCOTT V. GERMANO, 381 U.S. 407, 409 (1965), IN WHICH WE STATED THAT
THE "POWER OF THE JUDICIARY OF A STATE TO REQUIRE VALID REAPPORTIONMENT
OR TO FORMULATE A VALID REDISTRICTING PLAN HAS NOT ONLY BEEN RECOGNIZED
BY THIS COURT BUT APPROPRIATE ACTION BY THE STATES IN SUCH CASES HAS
BEEN SPECIFICALLY ENCOURAGED." 

/10/  MACDOUGALL V. GREEN, 335 U.S. 281 (1948), DID CONTEST THE
CONSTITUTIONALITY OF ILLINOIS' SYSTEM OF NOMINATING CANDIDATES
REPRESENTATIVE OF NEW POLITICAL PARTIES.  HOWEVER, MACDOUGALL WAS
DECIDED DURING THE REIGN OF COLEGROVE V. GREEN, 328 U.S. 549 (1946). 
BAKER V. CARR, 369 U.S. 186 (1962), AND ITS PROGENY HAVE SUBSTANTIALLY
MODIFIED THE CONSTITUTIONAL MATRIX IN THIS AREA.  FORTSON V. MORRIS,
385 U.S. 231 (1966), ALTHOUGH CONCERNING THE CONSTITUTIONALITY OF STATE
ELECTION LAWS, INVOLVED CONSIDERATION OF A STATE'S POST-ELECTION
PROCEDURE, NOT STATE REQUIREMENTS FOR INITIAL BALLOT QUALIFICATION. 

/11/  "WE HOLD THAT A FEDERAL DISTRICT COURT HAS THE DUTY TO DECIDE
THE APPROPRIATENESS AND THE MERITS OF THE DECLARATORY REQUEST
IRRESPECTIVE OF ITS CONCLUSION AS TO THE PROPRIETY OF THE ISSUANCE OF
THE INJUNCTION."  389 U.S.,AT 254. 

DAVID J. YOUNG ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANTS IN
NO. 543.  JERRY GORDON ARGUED THE CAUSE, PRO HAC VICE, AND FILED BRIEFS
FOR APPELLANTS IN NO. 544. 

CHARLES S. LOPEMAN ARGUED THE CAUSE FOR APPELLEES IN BOTH CASES. 
WITH HIM ON THE BRIEFS WAS WILLIAM B. SAXBE, ATTORNEY GENERAL OF OHIO. 

..END :







MCCONNELL V. RHAY, 393 U.S. 2 


       MCCONNELL V. RHAY, PENITENTIARY SUPERINTENDENT. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           WASHINGTON. 

        NO. 87, MISC.  DECIDED OCTOBER 14, 1968.  /0/ 


THE DECISION IN MEMPA V. RHAY, 389 U.S. 128, HOLDING THAT THE SIXTH
AMENDMENT, AS APPLIED THROUGH THE FOURTEENTH AMENDMENT, REQUIRES THAT
COUNSEL BE AFFORDED FELONY DEFENDANTS IN A PROCEEDING FOR REVOCATION OF
PROBATION AND IMPOSITION OF DEFERRED SENTENCING, SHOULD BE APPLIED
RETROACTIVELY. 

CERTIORARI GRANTED; JUDGMENTS REVERSED AND REMANDED. 

PER CURIAM. 

THE SOLE ISSUE PRESENTED BY THESE CASES IS WHETHER OUR DECISION IN
MEMPA V. RHAY, 389 U.S. 128 (1967), SHOULD BE APPLIED RETROACTIVELY. 

THE FACTS IN BOTH CASES ARE QUITE SIMILAR TO THOSE IN MEMPA. 
PETITIONER JACK D. MCCONNELL PLEADED GUILTY TO TWO COUNTS OF GRAND
LARCENY BY CHECK.  AT A HEARING ON DECEMBER 23, 1965, HE WAS PLACED ON
PROBATION FOR FIVE YEARS UPON CONDITION THAT HE SERVE ONE YEAR IN THE
COUNTY JAIL.  HE WAS RELEASED FROM JAIL THE FOLLOWING APRIL, BUT FIVE
MONTHS LATER THE PROSECUTING ATTORNEY MOVED THAT THE DECEMBER 23 ORDER
BE REVOKED, ALLEGING THAT MCCONNELL HAD VIOLATED THE TERMS OF HIS
PROBATION.  TWO HEARINGS ON THE MOTION FOLLOWED-- ONE ON SEPTEMBER 29,
1966, AND THE OTHER ON NOVEMBER 23, 1966.  AS A RESULT OF THESE
HEARINGS, MCCONNELL WAS SENTENCED TO TWO CONCURRENT 15-YEAR TERMS.  AT
NEITHER HEARING WAS HE REPRESENTED BY COUNSEL OR ADVISED OF HIS RIGHT
TO HAVE COUNSEL APPOINTED. 

PETITIONER DOUGLAS STILTNER PLEADED GUILTY TO BURGLARY IN THE SECOND
DEGREE AND GRAND LARCENY, AND ON JUNE 23, 1958, HE WAS PLACED ON
PROBATION AND SENTENCING WAS DEFERRED.  AS IN MCCONNELL'S CASE, THE
PROSECUTING ATTORNEY LATER MOVED FOR REVOCATION OF THIS ORDER. 
HEARINGS ON DECEMBER 30, 1958, AND JANUARY 8, 1959, LED TO THE
IMPOSITION OF TWO CONCURRENT 15-YEAR SENTENCES.  STILTNER WAS NEITHER
REPRESENTED NOR ADVISED OF HIS RIGHT TO HAVE COUNSEL APPOINTED. 
ALTHOUGH STILTNER WAS SUBSEQUENTLY CONVICTED OF ANOTHER OFFENSE AND IS
SERVING A SENTENCE FOR THAT CRIME, THE WASHINGTON SUPREME COURT FOUND
THAT IT HAD THE POWER TO FASHION APPROPRIATE RELIEF, WERE MEMPA V. RHAY
APPLICABLE. 

IN HABEAS CORPUS PROCEEDINGS, THE WASHINGTON SUPREME COURT PROPERLY
FOUND THAT BOTH PETITIONERS' SIXTH AMENDMENT RIGHTS WERE VIOLATED AT
THEIR DEFERRED SENTENCING HEARINGS.  THAT QUESTION WAS SETTLED BY OUR
DECISION IN MEMPA.  BUT THE COURT DENIED RELIEF IN BOTH CASES, HOLDING
THAT MEMPA SHOULD NOT BE APPLIED TO CASES IN WHICH PROBATION AND
DEFERRAL OR SUSPENSION OF SENTENCES HAD BEEN REVOKED BEFORE NOVEMBER
13, 1967, THE DATE UPON WHICH MEMPA WAS DECIDED.  THIS WAS ERROR. 

THIS COURT'S DECISIONS ON A CRIMINAL DEFENDANT'S RIGHT TO COUNSEL AT
TRIAL, GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963); AT CERTAIN
ARRAIGNMENTS, HAMILTON V. ALABAMA, 368 U.S. 52 (1961); AND ON APPEAL,
DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963), HAVE BEEN APPLIED
RETROACTIVELY.  THE RIGHT TO COUNSEL AT SENTENCING IS NO DIFFERENT.  AS
IN THESE OTHER CASES, THE RIGHT BEING ASSERTED RELATES TO "THE VERY
INTEGRITY OF THE FACT-FINDING PROCESS."  LINKLETTER V. WALKER, 381 U.S.
618, 639 (1965); CF. ROBERTS V. RUSSELL, 392 U.S. 293 (1968).  AS WE
SAID IN MEMPA, "THE NECESSITY FOR THE AID OF COUNSEL IN MARSHALING THE
FACTS, INTRODUCING EVIDENCE OF MITIGATING CIRCUMSTANCES AND IN GENERAL
AIDING AND ASSISTING THE DEFENDANT TO PRESENT HIS CASE AS TO SENTENCE
IS APPARENT."  389 U.S.,AT 135.  THE RIGHT TO COUNSEL AT SENTENCING
MUST, THEREFORE, BE TREATED LIKE THE RIGHT TO COUNSEL AT OTHER STAGES
OF ADJUDICATION. 

CERTIORARI AND THE MOTIONS TO PROCEED IN FORMA PAUPERIS ARE GRANTED
IN BOTH CASES, THE JUDGMENTS ARE REVERSED, AND THE CASES ARE REMANDED
FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 458, MISC., STILTNER V. RHAY, PENITENTIARY
SUPERINTENDENT, ALSO ON PETITION FOR WRIT OF CERTIORARI TO THE SAME
COURT. 

MICHAEL H. ROSEN FOR PETITIONER IN NO. 458, MISC. 

JOHN J. O'CONNELL, ATTORNEY GENERAL OF WASHINGTON, AND STEPHEN C.
WAY, ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT IN BOTH CASES. 
..END :










ARSENAULT V. MASSACHUSETTS, 393 U.S. 5 


       ARSENAULT V. MASSACHUSETTS. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS. 

        NO. 187, MISC.  DECIDED OCTOBER 14, 1968. 


PETITIONER PLEADED GUILTY TO MURDER AT A PROBABLE-CAUSE HEARING WHEN
HE HAD NO COUNSEL.  HE TESTIFIED AT HIS TRIAL (WHEN HE HAD COUNSEL),
AND DENIED GUILT.  ON CROSS-EXAMINATION HIS PRIOR PLEA WAS INTRODUCED. 
PETITIONER WAS CONVICTED AND THE STATE'S HIGHEST COURT AFFIRMED OVER
HIS CONTENTION THAT ADMISSION OF THE PRIOR PLEA WAS ERROR.  BASED ON
WHITE V. MARYLAND, 373 U.S. 59, DECIDED AFTER PETITIONER'S TRIAL,
PETITION SOUGHT POST-CONVICTION RELIEF, WHICH THAT COURT DENIED ON THE
GROUND THAT WHITE WAS NOT RETROACTIVE.  HELD:  WHITE V. MARYLAND, WHICH
IS INDISTINGUISHABLE IN PRINCIPLE FROM THE PRESENT CASE, APPLIES
RETROACTIVELY. 

CERTIORARI GRANTED; 353 MASS. 575, 233 N.E.2D 730, REVERSED. 

PER CURIAM. 

IN FEBRUARY 1955 PETITIONER WAS ARRESTED IN CONNECTION WITH A RECENT
HOMICIDE AND ATTEMPTED ROBBERY.  THE NEXT MORNING AT A PROBABLE-CAUSE
HEARING, BUT UNASSISTED BY COUNSEL, HE PLEADED GUILTY TO COUNTS OF
MURDER AND ASSAULT WITH INTENT TO ROB.  SIX DAYS LATER AT HIS
ARRAIGNMENT, AND AGAIN UNAIDED BY COUNSEL, HE PLEADED NOT GUILTY TO AN
INDICTMENT CHARGING HIM WITH FIRST-DEGREE MURDER.  AFTER BEING ASSIGNED
COUNSEL FOR TRIAL HE TOOK THE STAND IN HIS OWN DEFENSE AND AGAIN
PLEADED NOT GUILTY TO THE INDICTMENT, ASSERTING INSTEAD THAT HE LACKED
THE PREMEDITATION NECESSARY FOR FIRST-DEGREE MURDER.  ON CROSS
EXAMINATION, THE DISTRICT ATTORNEY QUESTIONED HIM ABOUT HIS PRIOR
STATEMENTS AT THE PRELIMINARY HEARING AND INTRODUCED HIS PLEA OF GUILTY
FOR THE PURPOSE OF REFRESHING HIS MEMORY.  THE JURY THEN RETURNED A
VERDICT OF GUILTY AND IMPOSED A SENTENCE OF DEATH, SINCE COMMUTED TO
LIFE IMPRISONMENT.  ON DIRECT REVIEW BY THE MASSACHUSETTS SUPREME
JUDICIAL COURT, HE ASSIGNED AS ERROR THE ADMISSION AT TRIAL OF HIS
PRIOR PLEA.  THE COURT REJECTED HIS CLAIM BY AFFIRMING THE CONVICTION. 

IN 1966 PETITIONER SOUGHT POST-CONVICTION RELIEF FROM THE
MASSACHUSETTS SUPREME JUDICIAL COURT ON THE GROUND THAT OUR SUPERVENING
DECISION IN WHITE V. MARYLAND, 373 U.S. 59, RENDERED HIS CONVICTION
VOID.  WHILE RECOGNIZING A "CLOSE SIMILARITY" BETWEEN HIS CASE AND
WHITE, THAT COURT NONTHELESS REAFFIRMED THE JUDGMENT BELOW ON THE
GROUND THAT WHITE WAS NOT RETROACTIVE.  PETITIONER COMES HERE BY
PETITION FOR A WRIT OF CERTIORARI.  THE MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND THE PETITION FOR A WRIT OF CERTIROARI ARE GRANTED. 

IN WHITE V. MARYLAND AN ACCUSED PLEADED GUILTY WHEN ARRAIGNED AT A
PRELIMINARY HEARING, AND AT THAT TIME HAD NO COUNSEL TO REPRESENT HIM. 
WE HELD THAT HAMILTON V. ALABAMA, 368 U.S. 52, WAS APPLICABLE, AS ONLY
THE AID OF COUNSEL COULD HAVE ENABLE THE ACCUSED TO KNOW ALL THE
DEFENSES AVAIALBLE TO HIM AND TO PLEAD INTELLIGENTLY.  WHITE V.
MARYLAND IS INDISTINGUISHABLE IN PRINCIPLE FROM THE PRESENT CASE; AND
WE HOLD THAT IT IS APPLICABLE HERE ALTHOUGH IT WAS NOT DECIDED UNTIL
AFTER THE ARRAIGNMENT AND TRAIL IN THE INSTANT CASE. 

THE RIGHT TO COUNSEL AT THE TRIAL (GIDEON V. WAINWRIGHT, 372 U.S.
335); ON APPEAL (DOUGLAS V. CALIFORNIA, 372 U.S. 353); AND AT THE OTHER
"CRITICAL" STAGES OF THE CRIMINAL PROCEEDINGS (AHMILTON V. ALABAMA,
SUPRA) HAVE ALL BEEN MADE RETROACTIVE, SINCE THE "DENIAL OF THE RIGHT
MUST ALMOST INVARIABLY DENY A FAIR TRIAL."  /0/  SEE STOVALL V. DENNO,
388 U.S. 293, 297. 

              REVERSED. 

/0/  FOR THE DISTINCTION DRAWN BETWEEN THE RIGHT-TO-COUNSEL CASES
AND THOSE ARISING UNDER THE FOURTH AND FIFTH AMENDMENTS, SEE ALSO TEHAN
V. SHOTT, 382 U.S. 406, 416. 

F. LEE BAILEY FOR PETITIONER. 

ELLIOT L. RICHARDSON, ATTORNEY GENERAL OF MASSACHUSETTS, HOWARD M.
MILLER, ASSISTANT ATTORNEY GENERAL, AND RICHARD L. LEVINE, DEPUTY
ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :

















COHON V. KIRBY, 393 U.S. 7 


       COHON ET AL. V. KIRBY, DIRECTOR, DEPARTMENT OF ALCOHOLIC

           BEVERAGE CONTROL OF CALIFORNIA. 

  APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FIRST

        APPELLATE DISTRICT. 

        NO. 57.  DECIDED OCTOBER 14, 1968. 


256 CAL.APP.2D 158, 64 CAL.RPTR.  26, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

HERBERT A. LELAND, MARC E. LELAND, J. BRUCE FRATIS, JOSEPH L.
ALIOTO, AND RICHARD SAVERI FOR APPELLANTS. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND ELIZABETH
PALMER AND L. STEPHEN PORTER, DEPUTY ATTORNEYS GENERAL, FOR APPELLEE. 
..END :




HANOVER INS. CO. V. VICTOR, 393 U.S. 7 


       HANOVER INSURANCE CO. OF NEW YORK V. VICTOR. 

     APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

  NO. 50.  DECIDED OCTOBER 14, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

FLORINDO M. DEROSA, DUNCAN C. LEE, FRANK A. CELENTANO, AND PETER J.
MALLOY, JR., FOR APPELLANT. 

HARRIET E. GAIR FOR APPELLEE. 
..END :










DESERT V. SAN BERNARDINO, 393 U.S. 8 


       DESERT OUTDOOR ADVERTISING, INC. V. COUNTY OF SAN

           BERNARDINO. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FOURTH

           APPELLATE DISTRICT. 

        NO. 114.  DECIDED OCTOBER 14, 1968. 


255 CAL.APP.2D 765, 63 CAL.RPTR.  543, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

J. PERRY LANGFORD FOR APPELLANT. 

WILLIAM SABOURIN FOR APPELLEE. 
..END :






MAKAH V. TAX COMMISSION, 393 U.S. 8 


       MAKAH INDIAN TRIBE V. TAX COMMISSION OF WASHINGTON ET AL.

        APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

        NO. 52.  DECIDED OCTOBER 14, 1968. 


72 WASH.2D 613, 434 P.2D 580, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

JAMES J. MCARDLE FOR APPELLANT. 

JOHN J. O'CONNELL, ATTORNEY GENERAL OF WASHINGTON, AND TIMOTHY R.
MALONE AND J. RICHARD DUGGAN, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEE
TAX COMMISSION OF WASHINGTON. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MARTZ, AND
ROGER P. MARQUIS FOR THE UNITED STATES, AS AMICUS CURIAE. 
..END :






HORNBEAK V. HAMM, 393 U.S. 9 


       HORNBEAK V. HAMM, COMMISSIONER OF REVENUE FOR ALABAMA. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF ALABAMA. 

NO. 260.  DECIDED OCTOBER 14, 1968. 


283 F.SUPP.  549, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART ARE
OF THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE
SET FOR ARGUMENT. 

BARRY HESS FOR APPELLANT. 

MACDONALD GALLION, ATTORNEY GENERAL OF ALABARA, AND WILLARD W.
LIVINGSTON AND HERBERT I. BURSON, ASSISSTANT ATTORNEYS GENERAL, FOR
APPELLEE. 
..END :




WHITNEY V. SUMMERFORD, 393 U.S. 9 


       WHITNEY STORES, INC., ET AL. V. SUMMERFORD ET AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF SOUTH CAROLINA. 

        NO. 85.  DECIDED OCTOBER 14, 1968. 


280 F.SUPP.  406, AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

E. N. ZEIGLER FOR APPELLANTS. 
..END :












BROWN V. RESOR, 393 U.S. 10 


       BROWN ET AL. V. RESOR, SECRETARY OF THE ARMY. 

      ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

      NO. 133, MISC.  DECIDED OCTOBER 14, 1968. 


CERTIORARI GRANTED; 388 F.2D 682, VACARED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER CONSIDERATION IN
LIGHT OF CARAFAS V. LAVALLEE, 391 U.S. 234. 

CHARLES MORGAN, JR., MORRIS BROWN, BENJAMIN E. SMITH, AND MELVIN L.
WULF FOR PETITIONERS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, AND
BEATRICE ROSENBERG FOR RESPONDENT. 
..END :





BIDDLE V. BOWSER, 393 U.S. 10 


       BIDDLE, ADMINISTRATRIX V. BOWSER ET AL.

APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 159.  DECIDED OCTOBER 14, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

DOWNEY RICE FOR APPELLANT. 
..END :












SAMSON MARKET CO. V. KIRBY, 393 U.S. 11 


       SAMSON MARKET CO., INC. V. KIRBY, DIRECTOR, DEPARTMENT OF

           ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 326.  DECIDED OCTOBER 14, 1968. 


261 CAL.APP.2D 577, 68 CAL.RPTR.  130, APPEAL DISMISSED AND
CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

JACQUES LESLIE AND LAWRENCE TEPLIN FOR APPELLANT. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND KENNETH
SCHOLTZ, DEPUTY ATTORNEY GENERAL, FOR APPELLEE. 
..END :



LOPTIEN V. CITY OF SYCAMORE, 393 U.S. 11 


       LOPTIEN ET UX. V. CITY OF SYCAMORE. 

        APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

        NO. 179.  DECIDED OCTOBER 14, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO STRIKE THE RESPONSE TO THE JURISDICTIONAL STATEMENT IS
DENIED. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

WILLIAM C. MURPHY FOR APPELLEE. 
..END :









MARTONE V. MORGAN, 393 U.S. 12 


       MARTONE V. MORGAN ET AL.

        APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

        NO. 216.  DECIDED OCTOBER 14, 1968. 


251 LA. 993, 207 SO.2D 770, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK DISSENTS. 

J. MINOS SIMON FOR APPELLANT. 

ASHTON L. STEWART, SPECIAL ASSISTANT ATTORNEY GENERAL OF LOUISIANA,
AND WESLEY WIRTZ, ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :









SAMSON MARKET CO. V. KIRBY, 393 U.S. 12 


       SAMSON MARKET CO., INC. V. KIRBY, DIRECTOR, DEPARTMENT OF

           ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 181.  DECIDED OCTOBER 14, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

JACQUES LESLIE AND LAWRENCE TEPLIN FOR APPELLANT. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND WARREN H.
DEERING AND HENRY G. ULLERICH, DEPUTY ATTORNEYS GENERAL, FOR APPELLEE. 

..END :




BURNELL V. COLORADO, 393 U.S. 13 


       ESTATE OF BURNELL V. COLORADO. 

        APPEAL FROM THE SUPREME COURT OF COLORADO. 

        NO. 239.  DECIDED OCTOBER 14, 1968. 

        -- COLO.-- , 439 P.2D 38, APPEAL DISMISSED. 


PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

LAWRENCE SPEISER FOR APPELLANT. 

DUKE W. DUNBAR, ATTORNEY GENERAL OF COLORADO, RICHARD D. ROBB,
ASSISTANT ATTORNEY GENERAL, AND FRANK E. HICKEY, DEPUTY ATTORNEY
GENERAL, FOR APPELLEE. 
..END :






LEWINSON V. CREWS, 393 U.S. 13 


       LEWINSON V. CREWS, COUNTY CLERK OF KINGS COUNTY. 

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

      NO. 230.  DECIDED OCTOBER 14, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

EMANUEL REDFIELD FOR APPELLANT. 

SEYMOUR BESUNDER FOR APPELLEE. 
..END :








ROBERTS V. POLLARD, 393 U.S. 14 


       ROBERTS, JUDGE, ET AL. V. POLLARD ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF ARKANSAS. 

        NO. 251.  DECIDED OCTOBER 14, 1968. 


283 F.SUPP.  248, AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

JOE PURCELL, ATTORNEY GENERAL OF ARKANSAS, AND DON LANGSTON, DEPUTY
ATTORNEY GENERAL, FOR APPELLANTS. 
..END :








ROSSO V. PUERTO RICO, 393 U.S. 14 


       ROSSO ET UX. V. PUERTO RICO. 

        APPEAL FROM THE SUPREME COURT OF PUERTO RICO. 

        NO. 242.  DECIDED OCTOBER 14, 1968. 


-- P.R.R.-- , APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

WALTER L. NEWSOM, JR., AND JAMES B. DONOVAN FOR APPELLANTS. 

RAFAEL A. RIVERA-CRUZ, SOLICITOR GENERAL OF PUERTO RICO, J. F.
RODRIGUEZ-RIVERA, DEPUTY SOLICITOR GENERAL, AND PETER ORTIZ, ASSISTANT
SOLICITOR GENERAL, FOR APPELLEE. 
..END :






BUTLER V. BRIERLEY, 393 U.S. 15 


       BUTLER V. BRIERLEY, CORRECTIONAL SUPERINTENDENT. 

        APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

       NO. 197, MISC.  DECIDED OCTOBER 14, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

STEPHEN J. MCEWEN, JR., AND VRAM NEDURIAN, JR., FOR APPELLEE. 
..END :












ILOWITE V. UNITED STATES, 393 U.S. 15 


       ILOWITE V. UNITED STATES ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT. 

        NO. 263.  DECIDED OCTOBER 14, 1968. 


CERTIORARI GRANTED; 390 F.2D 589, VACATED AND REMANDED WITH
DIRECTIONS TO DISMISS THE CASE AS MOOT. 

PER CURIAM. 

UPON CONSIDERATION OF THE SUGGESTION OF MOOTNESS AND AN EXAMINATION
OF THE ENTIRE RECORD, THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED,
THE JUDGMENT IS VACATED, AND THE CASE IS REMANDED TO THE COURT OF
APPEALS WITH DIRECTIONS TO DISMISS THE CASE AS MOOT. 

VICTOR RABINOWITZ, LEONARD B. BOUDIN, MICHAEL B. STANDARD, AND DAVID
ROSENBERG FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD AND HENRY GELLER FOR THE UNITED STATES ET
AL.
..END :




BATES V. NELSON, 393 U.S. 16 


       BATES ET AL. V. NELSON, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

 COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 86, MISC.  DECIDED OCTOBER 14, 1968. 


CERTIORARI GRANTED; 385 F.2D 771, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTIONS TO SUPPLEMENT THE PETITION FOR A WRIT OF CERTIORARI AND
FOR LEAVE TO PROCEED IN FORMA PAUPERIS ARE GRANTED.  THE PETITION FOR A
WRIT OF CERTIORARI IS ALSO GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER CONSIDERATION IN
LIGHT OF BURGETT V. TEXAS, 389 U.S. 109; BRUTON V. UNITED STATES, 391
U.S. 123; AND ROBERTS V. RUSSELL, 392 U.S. 293. 

RICHARD GLADSTEIN, NORMAN LEONARD, AND RUTH JACOBS FOR PETITIONERS. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, ALBERT W. HARRIS,
JR., ASSISTANT ATTORNEY GENERAL, AND CHARLES R. B. KIRK, DEPUTY
ATTORNEY GENERAL, FOR RESPONDENT. 
..END :



PENJASKA V. GOODBODY & CO., 393 U.S. 16 


       PENJASKA ET AL V. GOODBODY & CO.

        APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

        NO. 270.  DECIDED OCTOBER 14, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














WESTSIDE LIQUOR CO. V. KIRBY, 393 U.S. 17 


       WESTSIDE LIQUOR CO. V. KIRBY, DIRECTOR, DEPARTMENT OF

           ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 324.  DECIDED OCTOBER 14, 1968. 


259 CAL.APP.2D 511, 66 CAL.RPTR.  434, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

HAROLD EASTON FOR APPELLANT. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND LYNN HENRY
JOHNSON, DEPUTY ATTORNEY GENERAL, FOR APPELLEE. 
..END :





LOUISIANA EDUCATION COMMISSION V. POINDEXTER, 393 U.S. 17 


       LOUISIANA EDUCATION COMMISSION FOR NEEDY CHILDREN ET AL. V.

           POINDEXTER ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

    DISTRICT OF LOUISIANA. 

        NO. 284.  DECIDED OCTOBER 14, 1968. 


AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

LEANDER H. PEREZ AND LUKE A. PETROVICH FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY GENERAL POLLAK FOR
APPELLEES. 
..END :





NATIONAL MOTOR FREIGHT V. UNITED STATES, 393 U.S. 18 


       NATIONAL MOTOR FREIGHT TRAFFIC ASSN., INC., ET AL. V. UNITED

           STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA. 

        NO. 355.  DECIDED OCTOBER 14, 1968. 


AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

BRYCE REA, JR., AND THOMAS M. KNEBEL FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL ZIMMERMAN,
ROBERT W. GINNANE, AND EMMANUEL H. SMITH FOR THE UNITED STATES ET AL.,
JAMES T. JOHNSON FOR PACIFIC PROGRESS SHIPPERS ASSN., INC., AND RONALD
N. COBERT AND PHILIP R. EHRENKRANZ FOR AMERICAN INSTITUTE OF SHIPPERS'
ASSNS., INC., APPELLEES. 
..END :



GUERRA V. MISSISSIPPI, 393 U.S. 18 


       GUERRA V. MISSISSIPPI. 

        APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

        NO. 286.  DECIDED OCTOBER 14, 1968. 


209 SO.2D 627, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A PROPERLY PRESENTED FEDERAL
QUESTION. 

W. D. KENDALL FOR APPELLANT. 
..END :













TYRRELL V. CROUSE, 393 U.S. 19 


       TYRRELL V. CROUSE, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT. 

        NO. 59, MISC.  DECIDED OCTOBER 14, 1968. 


CERTIORARI GRANTED; JUDGMENT REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  IN ACCORDANCE WITH THE
CONCESSION BY THE RESPONDENT THE JUDGMENT IS REVRESED.  PEYTON V. ROWE,
391 U.S. 54. 

ROBERT C. LONDERHOLM, ATTORNEY GENERAL OF KANSAS, AND J. RICHARD
FOTH AND JON K. SARGENT, ASSISTANT ATTORNEYS GENERAL, FOR RESPONDENT. 
..END :








PENNWICK CORP. V. KIRBY, 393 U.S. 19 


       PENNWICK CORP. V. KIRBY, DIRECTOR, DEPARTMENT OF ALCOHOLIC

           BEVERAGE CONTROL OF CALIFORNIA. 

    APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 325.  DECIDED OCTOBER 14, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

JACQUES LESLIE AND LAWRENCE TEPLIN FOR APPELLANT. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND LYNN HENRY
JOHNSON, DEPUTY ATTORNEY GENERAL, FOR APPELLEE. 
..END :





LEMANSKI V. LEMANSKI, 393 U.S. 20 


       LEMANSKI V. LEMANSKI. 

        APPEAL FROM THE APPELLATE COURT OF ILLINOIS, SECOND

           DISTRICT. 

        NO. 473, MISC.  DECIDED OCTOBER 14, 1968. 


87 ILL.APP.2D 405, 231 N.E.2D 191, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :











BLABON V. NELSON, 393 U.S. 20 


       BLABON V. NELSON, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 3, MISC.  DECIDED OCTOBER 14, 1968. 


CERTIORARI GRANTED; 370 F.2D 997, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER CONSIDERATION IN
THE LIGHT OF IN RE BEVILL, 68 CAL.2D 854, 442 P.2D 679. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND EDWARD P.
O'BRIEN AND DERALD E. GRANBERG, DEPUTY ATTORNEYS GENERAL, FOR
RESPONDENT. 
..END :







WORKMAN V. UTAH, 393 U.S. 21 


       WORKMAN V. UTAH. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           UTAH. 

        NO. 39, MISC.  DECIDED OCTOBER 14, 1968. 


CERTIROARI GRANTED; 20 UTAH2D 178, 435 P.2D 919, REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
MIRANDA V. ARIZONA, 384 U.S. 436; JOHNSON V. NEW JERSEY, 384 U.S. 719. 

JIMI MITSUNAGA FOR PETITIONER. 

PHIL L. HANSEN, ATTORNEY GENERAL OF UTAH, FOR RESPONDENT. 
..END :








JONES V. GEORGIA, 393 U.S. 21 


       JONES V. GEORGIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           GEORGIA. 

        NO. 149, MISC.  DECIDED OCTOBER 14, 1968. 


CERTIORARI GRANTED; 224 GA. 283, 161 S.E.2D 302, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PEITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGNMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF GEORGIA FOR FURTHER
CONSIDERATION IN LIGHT OF WITHERSPOON V. ILLINOIS, 391 U.S. 510. 

FRANK B. HESTER FOR PETITIONER. 

LEWIS R. SLATON AND J. WALTER LECRAW FOR RESPONDENT. 
..END :






MUNIZ V. BETO, 393 U.S. 22 


       MUNIZ V. BETO, CORRECTIONS DIRECTOR. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

NO. 430, MISC.  DECIDED OCTOBER 14, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

JOSEPH A. CALAMIA FOR APPELLANT. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, A. J. CARUBBI, JR., EXECUTIVE ASSISTANT
ATTORNEY GENERAL, ROBERT C. FLOWERS AND ALLO B. CROW, JR., ASSISTANT
ATTORNEYS GENERAL, AND W. BARTON BOLING FOR APPELLEE. 
..END :







ANDERSEN V. FLORIDA, 393 U.S. 22 


       ANDERSEN ET AL. V. FLORIDA. 

        APPEAL FROM THE SUPREME COURT OF FLORIDA. 

        NO. 335.  DECIDED OCTOBER 14, 1968. 


208 SO.2D 814, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

WILLIAM Y. AKERMAN FOR APPELLANTS. 
..END :














CALIFORNIANS V. CALIFORNIA, 393 U.S. 1 


       CALIFORNIANS FOR AN ALTERNATIVE IN NOVEMBER ET AL. V.

           CALIFORNIA ET AL.

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 605.  DECIDED OCTOBER 7, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  CALIFORNIA IS ON THE EVE OF A NATIONAL
ELECTION.  MILLIONS OF BALLOTS ARE BEING PRINTED AND IN A FEW HOURS THE
ABSENTEE BALLOTS WILL BE SENT OUR OF STATE.  WHATEVER MAY BE THE MERITS
OF THE CONTROVERSY, THE SHORTNESS OF TIME AND THE COMPLICATED TASK OF
PREPARING AND DISTRIBUTING THE BALLOTS MAKE IT VERY DOUBTFUL IF ANY
EFFECTIVE RELIEF WOULD BE POSSIBLE. 

DORIS BRIAN WALKER FOR APPELLANTS. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, CHARLES A. BARRETT,
ASSISTANT ATTORNEY GENERAL, AND CLAYTON P. ROCHE, DEPUTY ATTORNEY
GENERAL, FOR APPELLEES. 
..END :
























KING V. SMITH, 392 U.S. 309 


       KING, COMMISSIONER, DEPARTMENT OF PENSIONS AND SECURITY, ET

           AL. V. SMITH ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

     DISTRICT OF ALABAMA. 

        NO. 949.  ARGUED APRIL 23, 1968.-- DECIDED JUNE 17, 1968. 


UNDER THE AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM (AFDC)
ESTABLISHED BY THE SOCIAL SECURITY ACT OF 1935 FUNDS ARE MADE AVAILABLE
FOR A "DEPENDENT CHILD" LARGELY BY THE FEDERAL GOVERNMENT, ON A
MATCHING FUND BASIS, WITH THE PARTICIPATING STATE ADMINISTERING THE
PROGRAM IN CONFORMITY WITH THE ACT AND REGULATIONS OF THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE (HEW).  SECTION 406(A) OF THE ACT
DEFINES A "DEPENDENT CHILD" AS ONE WHO HAS BEEN DEPRIVED OF "PARENTAL"
SUPPORT OR CARE BY REASON OF THE DEATH, CONTINUED ABSENCE, OR
INCAPACITY OF A "PARENT," AND INSOFAR AS RELEVANT IN THIS CASE AID CAN
BE GRANTED UNDER THE PROVISION ONLY IF A "PARENT" OF THE NEEDY CHILD IS
CONTINUALLY ABSENT FROM THE HOME.  THE ACT REQUIRES THAT "AID TO
FAMILIES WITH DEPENDENT CHILDREN SHALL BE FURNISHED WITH REASONABLE
PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS . . . ."  42 U.S.C. 602(A)(9). 
ALABAMA, WHICH LIKE ALL OTHER STATES, PARTICIPATES IN THE AFDC PROGRAM,
IN 1964 PROMULGATED ITS "SUBSTITUTE FATHER" REGULATION UNDER WHICH AFDC
PAYMENTS ARE DENIED TO THE CHILDREN OF A MOTHER WHO "COHABITS" IN OR
OUTSIDE HER HOME WITH AN ABLE-BODIED MAN, A "SUBSTITUTE FATHER" BEING
CONSIDERED A NON-ABSENT PARENT WITHIN THE FEDERAL STATUTE.  THE
REGULATION APPLIES REGARDLESS OF WHETHER THE MAN IS THE CHILDREN'S
FATHER, IS OBLIGED TO CONTRIBUTE TO THEIR SUPPORT, OR IN FACT DOES SO.
THE AFDC AID WHICH APPELLEE MRS. SMITH AND HER FOUR CHILDREN, WHO
RESIDE IN ALABAMA, FOR SEVERAL YEARS HAD RECEIVED WAS TERMINATED IN
OCTOBER 1966 SOLELY BECAUSE OF THE SUBSTITUTE FATHER REGULATION ON THE
GROUND THAT A MR. WILLIAMS CAME TO HER HOME ON WEEKENDS AND HAD SEXUAL
RELATIONS WITH HER.  MR. WILLIAMS IS NOT THE FATHER OF ANY OF HER
CHILDREN, IS NOT OBLIGED BY STATE LAW TO SUPPORT THEM, AND DOES NOT DO
SO.  APPELLEES THEREUPON BROUGHT THIS CLASS ACTION IN THE DISTRICT
COURT AGAINST APPELLANTS, OFFICERS, AND MEMBERS OF THE ALABAMA BOARD OF
PENSIONS AND SECURITY FOR DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE
SUBSTITUTE FATHER REGULATION.  THE STATE CONTENDED THAT THE REGULATION
SIMPLY DEFINES WHO IS A NON-ABSENT "PARENT" UNDER THE ACT, IS A
LEGITIMATE WAY OF ALLOCATING ITS LIMITED RESOURCES AVAILABLE FOR AFDC
ASSISTANCE, DISCOURAGES ILLICIT SEXUAL RELATIONSHIPS AND ILLEGITIMATE
BIRTHS, AND TREATS INFORMAL "MARRIED" COUPLES LIKE ORDINARY MARRIED
COUPLES WHO ARE INELIGIBLE FOR AFDC AID SO LONG AS THEIR FATHER IS IN
THE HOME.  THE DISTRICT COURT FOUND THE REGULATION INCONSISTENT WITH
THE ACT AND THE EQUAL PROTECTION CLAUSE.  HELD:  ALABAMA'S SUBSTITUTE
FATHER REGULATION IS INVALID BECAUSE IT DEFINES "PARENT" IN A MANNER
THAT IS INCONSISTENT WITH SEC. 406(A) OF THE SOCIAL SECURITY ACT, AND
IS DENYING AFDC ASSISTANCE TO APPELLEES ON THE BASIS OF THE INVALID
REGULATION ALABAMA HAS BREACHED ITS FEDERALLY IMPOSED OBLIGATION TO
FURNISH AID TO FAMILIES WITH DEPENDENT CHILDREN WITH REASONABLE
PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS.  PP. 320-334. 

(A) INSOFAR AS ALABAMA'S SUBSTITUTE FATHER REGULATION (WHICH HAS NO
RELATION TO THE NEED OF THE DEPENDENT CHILD) IS BASED ON THE STATE'S
ASSERTED INTEREST IN DISCOURAGING ILLICIT SEXUAL BEHAVIOR AND
ILLEGITIMACY IT PLAINLY CONFLICTS WITH FEDERAL LAW AND POLICY.  UNDER
HEW'S "FLEMMING RULING" AS MODIFIFED BY AMENDMENTS TO THE SOCIAL
SECURITY ACT, CONGRESS HAS DETERMINED THAT IMMORALITY AND ILLEGITIMACY
SHOULD BE DEALT WITH THROUGH REHABILITATIVE MEASURES RATHER THAN
MEASURES PUNISHING DEPENDENT CHILDREN, WHOSE PROTECTION IS AFDC'S
PARAMOUNT GOAL.  PP. 320-327. 

(B) CONGRESS MEANT BY THE TERM "PARENT" IN SEC. 406(A) OF THE ACT AN
INDIVIDUAL WHO OWED THE CHILD A STATE-IMPOSED DUTY OF SUPPORT, AND
ALABAMA MAY NOT THEREFORE DISQUALIFY A CHILD FROM AFDC AID ON THE BASIS
OF A SUBSTITUTE FATHER WHO HAS NO SUCH DUTY.  PP. 327-333. 

277 F.SUPP.  31, AFFIRMED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

ALABAMA, TOGETHER WITH EVERY OTHER STATE, PUERTO RICO, THE VIRGIN
ISLANDS, THE DISTRICT OF COLUMBIA, AND GUAM, PARTICIPATES IN THE
FEDERAL GOVERNMENT'S AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC)
PROGRAM, WHICH WAS ESTABLISHED BY THE SOCIAL SECURITY ACT OF 1935.  /1/
49 STAT. 620, AS AMENDED, 42 U.S.C. 301-1394.  THIS APPEAL PRESENTS
THE QUESTION WHETHER A REGULATION OF THE ALABAMA DEPARTMENT OF PENSIONS
AND SECURITY, EMPLOYED IN THAT DEPARTMENT'S ADMINISTRATION OF THE
STATE'S FEDERALLY FUNDED AFDC PROGRAM, IS CONSISTENT WITH SUBCHAPTER IV
OF THE SOCIAL SECURITY ACT, 42 U.S.C. 601-609, AND WITH THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  AT ISSUE IS THE
VALIDITY OF ALABAMA'S SO-CALLED "SUBSTITUTE FATHER" REGULATION WHICH
DENIES AFDC PAYMENTS TO THE CHILDREN OF A MOTHER WHO "COHABITS" IN OR
OUTSIDE HER HOME WITH ANY SINGLE OR MARRIED ABLE-BODIED MAN.  APPELLEES
BROUGHT THIS CLASS ACTION AGAINST APPELLANTS, OFFICERS, AND MEMBERS OF
THE ALABAMA BOARD OF PENSIONS AND SECURITY, IN THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, UNDER 42 U.S.C.
1983, /2/  SEEKING DECLARATORY AND INJUNCTIVE RELIEF.  A PROPERLY
CONVENED THREE-JUDGE DISTRICT COURT /3/  CORRECTLY ADJUDICATED THE
MERITS OF THE CONTROVERSY WITHOUT REQUIRING APPELLEES TO EXHAUST STATE
ADMINISTRATIVE REMEDIES, /4/  AND FOUND THE REGULATION TO BE
INCONSISTENT WITH THE SOCIAL SECURITY ACT AND THE EQUAL PROTECTION
CLAUSE.  /5/  WE NOTED PROBABLE JURISDICTION, 390 U.S. 903 (1968, AND,
FOR REASONS WHICH WILL APPEAR, WE AFFIRM WITHOUT REACHING THE
CONSTITUTIONAL ISSUE. 

        I. 

THE AFDC PROGRAM IS ONE OF THREE MAJOR CATERGORICAL PUBLIC
ASSISTANCE PROGRAMS ESTABLISHED BY THE SOCIAL SECURITY ACT OF 1935. 
SEE U.S. ADVISORY COMMISSION REPORT ON INTERGOVERNMENTAL RELATIONS,
STATUTORY AND ADMINISTRATIVE CONTROLS ASSOCIATED WITH FEDERAL GRANTS
FOR PUBLIC ASSISTANCE 5-7 (1964) (HEREAFTER CITED AS ADVISORY
COMMISSION REPORT).  THE CATEGORY SINGLED OUT FOR WELFARE ASSISTANCE BY
AFDC IS THE "DEPENDENT CHILD," WHO IS DEFINED IN SEC. 406 OF THE ACT,
49 STAT. 629, AS AMENDED, 42 U.S.C. 606(A) (1964 ED., SUPP. II), AS AN
AGE-QUALIFIED /6/  "NEEDY CHILD . . . WHO HAS BEEN DEPRIVED OF PARENTAL
SUPPORT OR CARE BY REASON OF THE DEATH, CONTINUED ABSENCE FROM THE
HOME, OR PHYSICAL OR MENTAL INCAPACITY OF A PARENT, AND WHO IS LIVING
WITH" ANY ONE OF SEVERAL LISTED RELATIVES.  UNDER THIS PROVISION, AND,
INSOFAR AS RELEVANT HERE, AID CAN BE GRANTED ONLY IF "A PARENT" OF THE
NEEDY CHILD IS CONTINUALLY ABSENT FROM THE HOME.  /7/  ALABAMA
CONSIDERS A MAN WHO QUALIFIES AS A "SUBSTITUTE FATHER" UNDER ITS
REGULATION TO BE A NONABSENT PARENT WITHIN THE FEDERAL STATUTE.  THE
STATE THEREFORE DENIES AID TO AN OTHERWISE ELIGIBLE NEEDY CHILD ON THE
BASIS THAT HIS SUBSTITUTE PARENT IS NOT ABSENT FROM THE HOME. 

UNDER THE ALABAMA REGULATION, AN "ABLE-BODIED MAN, MARRIED OR SINGLE,
IS CONSIDERED A SUBSTITUTE FATHER OF ALL THE CHILDREN OF THE APPLICANT
. . . MOTHER" IN THREE DIFFERENT SITUATIONS:  (1) IF "HE LIVES IN THE
HOME WITH THE CHILD'S NATURAL OR ADOPTIVE MOTHER FOR THE PURPOSE OF
COHABITATION"; OR (2) IF "HE VISITS (THE HOME) FREQUENTLY FOR THE
PURPOSE OF COHABITING WITH THE CHILD'S NATURAL OR ADOPTIVE MOTHER"; OR
(3) IF "HE DOES NOT FREQUENT THE HOME BUT COHABITS WITH THE CHILD'S
NATURAL OR ADOPTIVE MOTHER ELSEWHERE."  /8/  WHETHER THE SUBSTITUTE
FATHER IS ACTUALLY THE FATHER OF THE CHILDREN IS IRRELEVANT.  IT IS
ALSO IRRELEVANT WHETHER HE IS LEGALLY OBLIGATED TO SUPPORT THE
CHILDREN, AND WHETHER HE DOES IN FACT CONTRIBUTE TO THEIR SUPPORT. 
WHAT IS DETERMINATIVE IS SIMPLY WHETHER HE "COHABITS" WITH THE MOTHER. 
/9/ 

THE TESTIMONY BELOW BY OFFICIALS RESPONSIBLE FOR THE ADMINISTRATION
OF ALABAMA'S AFDC PROGRAM ESTABLISHES THAT "COHABITATION," AS USED IN
THE REGULATION, MEANS ESSENTIALLY THAT THE MAN AND WOMAN HAVE
"FREQUENT" OR "CONTINUING" SEXUAL RELATIONS.  WITH REGARD TO HOW
FREQUENT OR CONTINUAL THESE RELATIONS MUST BE, THE TESTIMONY IS
CONFLICTING.  ONE STATE OFFICIAL TESTIFIED THAT THE REGULATION APPLIED
ONLY IF THE PARTIES HAD SEX AT LEAST ONCE A WEEK; ANOTHER THOUGHT ONCE
EVERY THREE MONTHS WOULD SUFFICE; AND STILL ANOTHER BELIEVED ONCE EVERY
SIX MONTHS SUFFICIENT.  THE REGULATION ITSELF PROVIDES THAT PREGNANCY
OR A BABY UNDER SIC MONTHS OF AGE IS PRIMA FACIE EVIDENCE OF A
SUBSTITUTE FATHER. 

BETWEEN JUNE 1964, WHEN ALABAMA'S SUBSTITUTE FATHER REGULATION
BECAME EFFECTIVE, AND JANUARY 1967, THE TOTAL NUMBER OF AFDC RECIPIENTS
IN THE STATE DECLINED BY ABOUT 20,000 PERSONS, AND THE NUMBER OF
CHILDREN RECIPIENTS BY ABOUT 16,000, OR 22%.  AS APPLIED IN THIS CASE,
THE REGULATION HAS CAUSED THE TERMINATION OF ALL AFDC PAYMENTS TO THE
APPELLEES, MRS. SYLVESTER SMITH AND HER FOUR MINOR CHILDREN. 

MRS. SMITH AND HER FOUR CHILDREN, AGES 14, 12, 11, AND 9, RESIDE IN
DALLAS COUNTY, ALABAMA.  FOR SEVERAL YEARS PRIOR TO OCTOBER 1, 1966,
THEY HAD RECEIVED AID UNDER THE AFDC PROGRAM.  BY NOTICE DATED OCTOBER
11, 1966, THEY WERE REMOVED FROM THE LIST OF PERSONS ELIGIBLE TO
RECEIVE SUCH AID.  THIS ACTION WAS TAKEN BY THE DALLAS COUNTY WELFARE
AUTHORITIES PURSUANT TO THE SUBSTITUTE FATHER REGULATION, ON THE GROUND
THAT A MR. WILLIAMS CAME TO HER HOME ON WEEKENDS AND HAD SEXUAL
RELATIONS WITH HER. 

THREE OF MRS. SMITH'S CHILDREN HAVE NOT RECEIVED PARENTAL SUPPORT OR
CARE FROM A FATHER SINCE THEIR NATURAL FATHER'S DEATH IN 1955.  THE
FOURTH CHILD'S FATHER LEFT HOME IN 1963, AND THE CHILD HAS NOT RECEIVED
THE SUPPORT OR CARE OF HIS FATHER SINCE THEN.  ALL THE CHILDREN LIVE IN
THE HOME OF THEIR MOTHER, AND EXCEPT FOR THE SUBSTITUTE FATHER
REGULATION ARE ELIGIBLE FOR AID.  THE FAMILY IS NOT RECEIVING ANY OTHER
TYPE OF PUBLIC ASSISTANCE, AND HAS BEEN LIVING, SINCE THE TERMINATION
OF AFDC PAYMENTS, ON MRS. SMITH'S SALARY OF BETWEEN $16 AND $20 PER
WEEK WHICH SHE EARNS WORKING FROM 3:30 A.M. TO 12 NOON AS A COOK AND
WAITRESS. 

MR. WILLIAMS, THE ALLEGED "SUBSTITUTE FATHER" OF MRS. SMITH'S
CHILDREN, HAS NINE CHILDREN OF HIS OWN AND LIVES WITH HIS WIFE AND
FAMILY, ALL OF WHOM ARE DEPENDENT UPON HIM FOR SUPPORT.  MR. WILLIAMS
IS NOT THE FATHER OF ANY OF MRS. SMITH'S CHILDREN.  HE IS NOT LEGALLY
OBLIGATED, UNDER ALABAMA LAW, TO SUPPORT ANY OF MRS. SMITH'S CHILDREN. 
/10/  FURTHER, HE IS NOT WILLING OR ABLE TO SUPPORT THE SMITH CHILDREN,
AND DOES NOT IN FACT SUPPORT THEM.  HIS WIFE IS REQUIRED TO WORK TO
HELP SUPPORT THE WILLIAMS HOUSEHOLD. 

        II. 

THE AFDC PROGRAM IS BASED ON A SCHEME OF COOPERATIVE FEDERALISM. 
SEE GENERALLY ADVISORY COMMISSION REPORT, SUPRA, AT 1-59.  IT IS
FINANCED LARGELY BY THE FEDERAL GOVERNMENT, ON A MATCHING FUND BASIS,
AND IS ADMINISTERED BY THE STATES.  STATES ARE NOT REQUIRED TO
PARTICIPATE IN THE PROGRAM, BUT THOSE WHICH DESIRE TO TAKE ADVANTAGE OF
THE SUBSTANTIAL FEDERAL FUNDS AVAILABLE FOR DISTRIBUTION TO NEEDY
CHILDREN ARE REQUIRED TO SUBMIT AN AFDC PLAN FOR THE APPROVAL OF THE
SECRETARY OF HEALTH, EDUCATION, AND WELFARE (HEW).  49 STAT. 627, 42
U.S.C. 601, 602, 603, AND 604.  SEE ADVISORY COMMISSION REPORT, SUPRA,
AT 21-23.  /11/  THE PLAN MUST CONFORM WITH SEVERAL REQUIREMENTS OF THE
SOCIAL SECURITY ACT AND WITH RULES AND REGULATIONS PROMULGATED BY HEW. 
49 STAT. 627, AS AMENDED, 42 U.S.C. 602 (1964 ED., SUPP. II).  SEE ALSO
HEW, HANDBOOK OF PUBLIC ASSISTANCE ADMINISTRATION, PT.IV, SECS. 2200,
2300 (HEREAFTER CITED AS HANDBOOK).  /12/ 

ONE OF THE STATUTORY REQUIREMENTS IS THAT "AID TO FAMILIES WITH
DEPENDENT CHILDREN . . . SHALL BE FURNISHED WITH REASONABLE PROMPTNESS
TO ALL ELIGIBLE INDIVIDUALS . . . ."  64 STAT. 550, AS AMENDED, 42
U.S.C. 602(A)(9) (1964 ED., SUPP. II).  AS NOTED ABOVE, SEC. 406(A) OF
THE ACT DEFINES A "DEPENDENT CHILD" AS ONE WHO HAS BEEN DEPRIVED OF
"PARENTAL" SUPPORT OR CARE BY REASON OF THE DEATH, CONTINUED ABSENCE,
OR INCAPACITY OF A "PARENT."  42 U.S.C. 606(A) (1964 ED., SUPP. II). 
IN COMBINATION, THESE TWO PROVISIONS OF THE ACT CLEARLY REQUIRE
PARTICIPATING STATES TO FURNISH AID TO FAMILIES WITH CHILDREN WHO HAVE
A PARENT ABSENT FROM THE HOME, IF SUCH FAMILIES ARE IN OTHER RESPECTS
ELIGIBLE.  SEE ALSO HANDBOOK, PT. IV, SEC. 2200(B)(4). 

THE STATE ARGUES THAT ITS SUBSTITUTE FATHER REGULATION SIMPLY
DEFINES WHO IS A NONABSENT "PARENT" UNDER SEC. 406(A) OF THE SOCIAL
SECURITY ACT.  42 U.S.C. 606(A) (1964 ED., SUPP. II).  THE STATE
SUBMITS THAT THE REGULATION IS A LEGITIMATE WAY OF ALLOCATING ITS
LIMITED RESOURCES AVAILABLE FOR AFDC ASSISTANCE, IN THAT IT REDUCES THE
CASELOAD OF ITS SOCIAL WORKERS AND PROVIDES INCREASED BENEFITS TO THOSE
STILL ELIGIBLE FOR ASSISTANCE.  TWO STATE INTERESTS ARE ASSERTED IN
SUPPORT OF THE ALLOCATION OF AFDC ASSISTANCE ACHIEVED BY THE
REGULATION: FIRST, IT DISCOURAGES ILLICIT SEXUAL RELATIONSHIPS AND
ILLEGITIMATE BIRTHS; SECOND, IT PUTS FAMILIES IN WHICH THERE IS AN
INFORMAL "MARITAL"  RELATIONSHIP ON A PAR WITH THOSE IN WHICH THERE IS
AN ORDINARY MARITAL RELATIONSHIP, BECAUSE FAMILIES OF THE LATTER SORT
ARE NOT ELIGIBLE FOR AFDC ASSISTANCE.  /13/ 

WE THINK IT WELL TO NOTE AT THE OUTSET WHAT IS NOT INVOLVED IN THIS
CASE.  THERE IS NO QUESTION THAT STATES HAVE CONSIDERABLE LATITUDE IN
ALLOCATING THEIR AFDC RESOURCES, SINCE EACH STATE IS FREE TO SET ITS
OWN STANDARD OF NEED /14/  AND TO DETERMINE THE LEVEL OF BENEFITS BY
THE AMOUNT OF FUNDS IT DEVOTES TO THE PROGRAM.  /15/  SEE ADVISORY
COMMISSION REPORT, SUPRA, AT 30-59.  FURTHER, THERE IS NO QUESTION THAT
REGULAR AND ACTUAL CONTRIBUTIONS TO A NEEDY CHILD, INCLUDING
CONTRIBUTIONS FROM THE KIND OF PERSON ALABAMA CALLS A SUBSTITUTE
FATHER, CAN BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER THE CHILD IS
NEEDY.  /16/  IN OTHER WORDS, IF BY REASON OF SUCH A MAN'S
CONTRIBUTION, THE CHILD IS NOT IN FINANCIAL NEED, THE CHILD WOULD BE
INELIGIBLE FOR AFDC ASSISTANCE WITHOUT REGARD TO THE SUBSTITUTE FATHER
RULE.  THE APPELLEES HERE, HOWEVER, MEET ALABAMA'S NEED REQUIREMENTS;
THEIR ALLEGED SUBSTITUTE FATHER MAKES NO CONTRIBUTION TO THEIR SUPPORT;
AND THEY HAVE BEEN DENIED ASSISTANCE SOLELY ON THE BASIS OF THE
SUBSTITUTE FATHER REGULATION.  FURTHER, THE REGULATION ITSELF IS
UNRELATED TO NEED, BECAUSE THE ACTUAL FINANCIAL SITUATION OF THE FAMILY
IS IRRELEVANT IN DETERMINING THE EXISTENCE OF A SUBSTITUTE FATHER. 

ALSO NOT INVOLVED IN THIS CASE IS THE QUESTION OF ALABAMA'S GENERAL
POWER TO DEAL WITH CONDUCT IT REGARDS AS IMMORAL AND WITH THE PROBLEM
OF ILLEGITIMACY.  THIS APPEAL RAISES ONLY THE QUESTION WHETHER THE
STATE MAY DEAL WITH THESE PROBLEMS IN THE MANNER THAT IT HAS HERE-- BY
FLATLY DENYING AFDC ASSISTANCE TO OTHERWISE ELIGIBLE DEPENDENT
CHILDREN. 

ALABAMA'S ARGUMENT BASED ON ITS INTERESTS IN DISCOURAGING IMMORALITY
AND ILLEGITIMACY WOULD HAVE BEEN QUITE RELEVANT AT ONE TIME IN THE
HISTORY OF THE AFDC PROGRAM.  HOWEVER, SUBSEQUENT DEVELOPMENTS CLEARLY
ESTABLISH THAT THESE STATE INTERESTS ARE NOT PRESENTLY LEGITIMATE
JUSTIFICATIONS FOR AFDC DISQUALIFICATION.  INSOFAR AS THIS OR ANY
SIMILAR REGULATION IS BASED ON THE STATE'S ASSERTED INTEREST IN
DISCOURAGING ILLICIT SEXUAL BEHAVIOR AND ILLEGITIMACY IT PLAINLY
CONFLICTS WITH FEDERAL LAW AND POLICY. 

A SIGNIFICANT CHARACTERISTIC OF PUBLIC WELFARE PROGRAMS DURING THE
LAST HALF OF THE 19TH CENTURY IN THIS COUNTRY WAS THEIR PREFERENCE FOR
THE "WORTHY" POOR.  SOME POOR PERSONS WERE THOUGHT WORTHY OF PUBLIC
ASSISTANCE, AND OTHERS WERE THOUGHT UNWORTHY BECAUSE OF THEIR SUPPOSED
INCAPACITY FOR "MORAL REGENERATION."  H. LEYENDECKER, PROBLEMS AND
POLICY IN PUBLIC ASSISTANCE 45-57 (1955); WEDEMEYER & MOORE, THE
AMERICAN WELFARE SYSTEM, 54 CALIF.L.REV.  326, 327-328 (1966).  THIS
WORTHY-PERSON CONCEPT CHARACTERIZED THE MOTHERS' PENSION WELFARE
PROGRAMS, /17/  WHICH WERE THE PRECURSORS OF AFDC.  SEE W. BELL, AID TO
DEPENDENT CHILDREN 3-19 (1965).  BENEFITS UNDER THE MOTHERS' PENSION
PROGRAMS, ACCORDINGLY, WERE CUSTOMARILY RESTRICTED TO WIDOWS WHO WERE
CONSIDERED MORALLY FIT.  SEE BELL, SUPRA, AT 7; LEYENDECKER, SUPRA, AT
53. 

IN THIS SOCIAL CONTEXT IT IS NOT SURPRISING THAT BOTH THE HOUSE AND
SENATE COMMITTEE REPORTS ON THE SOCIAL SECURITY ACT OF 1935 INDICATE
THAT STATES PARTICIPATING IN AFDC WERE FREE TO IMPOSE ELIGIBILITY
REQUIREMENTS RELATING TO THE "MORAL CHARACTER" OF APPLICANTS.  H.R.
REP. NO. 615, 74TH CONG., 1ST SESS., 24 (1935); S. REP. NO. 628, 74TH
CONG., 1ST SESS., 36 (1935).  SEE ALSO 79 CONG.REC.  5679 (STATEMENT BY
REPRESENTATIVE JENKINS) (1935).  DURING THE FOLLOWING YEARS, MANY STATE
AFDC PLANS INCLUDED PROVISIONS MAKING INELIGIBLE FOR ASSISTANCE
DEPENDENT CHILDREN NOT LIVING IN "SUITABLE HOMES."  SEE BELL, SUPRA, AT
29-136 (1965).  AS APPLIED, THESE SUITABLE HOME PROVISIONS FREQUENTLY
DISQUALIFIED CHILDREN ON THE BASIS OF THE ALLEGED IMMORAL BEHAVIOR OF
THEIR MOTHERS.  IBID.  /18/ 

IN THE 1940'S, SUITABLE HOME PROVISIONS CAME UNDER INCREASING
ATTACK.  CRITICS ARGUED, FOR EXAMPLE, THAT SUCH DISQUALIFICATION
PROVISIONS UNDERMINED A MOTHER'S CONFIDENCE AND AUTHORITY, THEREBY
PROMOTING CONTINUED DEPENDENCY; THAT THEY FORCED DESTITUTE MOTHERS INTO
INCREASED IMMORALITY AS A MEANS OF EARNING MONEY; THAT THEY WERE
HABITUALLY USED TO DISGUISE SYSTEMATIC RACIAL DISCRIMINATION; AND THAT
THEY SENSELESSLY PUNISHED IMPOVERISHED CHILDREN ON THE BASIS OF THEIR
MOTHERS' BEHAVIOR, WHILE INCONSISTENTLY PERMITTING THEM TO REMAIN IN
THE ALLEGEDLY UNSUITABLE HOMES.  IN 1945, THE PREDECESSOR OF HEW
PRODUCED A STATE LETTER ARGUING AGAINST SUITABLE HOME PROVISIONS AND
RECOMMENDING THEIR ABOLITION.  SEE BELL, SUPRA, AT 51.  ALTHOUGH 15
STATES ABOLISHED THEIR PROVISIONS DURING THE FOLLOWING DECADE, NUMEROUS
OTHER STATES RETAINED THEM.  IBID.     IN THE 1950'S, MATTERS BECAME
FURTHER COMPLICATED BY PRESSURES IN NUMEROUS STATES TO DISQUALIFY
ILLEGITIMATE CHILDREN FROM AFDC ASSISTANCE.  ATTEMPTS WERE MADE IN AT
LEAST 18 STATES TO ENACT LAWS EXCLUDING CHILDREN ON THE BASIS OF THEIR
OWN OR THEIR SIBLINGS' BIRTH STATUS.  SEE BELL, SUPRA, AT 72-73.  ALL
BUT THREE ATTEMPTS FAILED TO PASS THE STATE LEGISLATURES, AND TWO OF
THE THREE SUCCESSFUL BILLS WERE VETOED BY THE GOVERNORS OF THE STATES
INVOLVED.  IBID.  IN 1960, THE FEDERAL AGENCY STRONGLY DISAPPROVED OF
ILLEGITIMACY DISQUALIFICATIONS.  SEE BELL, SUPRA, AT 73-74. 

NONETHELESS, IN 1960, LOUISIANA ENACTED LEGISLATION REQUIRING, AS A
CONDITION PRECEDENT FOR AFDC ELIGIBILITY, THAT THE HOME OF A DEPENDENT
CHILD BE "SUITABLE," AND SPECIFYING THAT ANY HOME IN WHICH AN
ILLEGITIMATE CHILD HAD BEEN BORN SUBSEQUENT TO THE RECEIPT OF PUBLIC
ASSISTANCE WOULD BE CONSIDERED UNSUITABLE.  LOUISIANA ACTS, NO. 251
(1960).  IN THE SUMMER OF 1960, APPROXIMATELY 23,000 CHILDREN WERE
DROPPED FROM LOUISIANA'S AFDC ROLLS.  BELL, SUPRA, AT 137.  IN
DISAPPROVING THIS LEGISLATION, THEN SECRETARY OF HEALTH, EDUCATION, AND
WELFARE FLEMMING ISSUED WHAT IS NOW KNOWN AS THE FLEMMING RULING,
STATING THAT AS OF JULY 1, 1961, 

"A STATE PLAN . . . MAY NOT IMPOSE AN ELIGIBILITY CONDITION THAT
WOULD DENY ASSISTANCE WITH RESPECT TO A NEEDY CHILD ON THE BASIS THAT
THE HOME CONDITIONS IN WHICH THE CHILD LIVES ARE UNSUITABLE, WHILE THE
CHILD CONTINUES TO RESIDE IN THE HOME.  ASSISTANCE WILL THEREFORE BE
CONTINUED DURING THE TIME EFFORTS ARE BEING MADE EITHER TO IMPROVE THE
HOME CONDITIONS OR TO MAKE ARRANGEMENTS FOR THE CHILD ELSEWHERE."  /19/
CONGRESS QUICKLY APPROVED THE FLEMMING RULING, WHILE EXTENDING UNTIL
SEPTEMBER 1, 1962, THE TIME FOR STATE COMPLIANCE.  75 STAT. 77, AS
AMENDED 42 U.S.C. 604(B).  /20/  AT THE SAME TIME, CONGRESS ACTED TO
IMPLEMENT THE RULING BY PROVIDING, ON A TEMPORARY BASIS, THAT DEPENDENT
CHILDREN COULD RECEIVE AFDC ASSISTANCE IF THEY WERE PLACED IN FOSTER
HOMES AFTER A COURT DETERMINATION THAT THEIR FORMER HOMES WERE, AS THE
SENATE REPORT STATED, "UNSUITABLE BECAUSE OF THE IMMORAL OR NEGLIGENT
BEHAVIOR OF THE PARENT."  S. REP. NO. 165, 87TH CONG., 1ST SESS., 6
(1961).  SEE 75 STAT. 76, AS AMENDED, 42 U.S.C. 608.  /21/ 

IN 1962, CONGRESS MADE PERMANENT THE PROVISION FOR AFDC ASSISTANCE
TO CHILDREN PLACED IN FOSTER HOMES AND EXTENDED SUCH COVERAGE TO
INCLUDE CHILDREN PLACED IN CHILD-CARE INSTITUTIONS.  76 STAT. 180, 185,
193, 196, 207, 42 U.S.C. 608.  SEE S. REP. NO. 1589, 87TH CONG., 2D
SESS., 13 (1962).  AT THE SAME TIME, CONGRESS MODIFIED THE FLEMMING
RULING BY AMENDING SEC. 404(B) OF THE ACT.  AS AMENDED, THE STATUTE
PERMITS STATES TO DISQUALIFY FROM AFDC AID CHILDREN WHO LIVE IN
UNSUITABLE HOMES, PROVIDED THEY ARE GRANTED OTHER "ADEQUATE CARE AND
ASSISTANCE."  76 STAT. 189, 42 U.S.C. 604(B).  SEE S. REP. NO. 1589,
87TH CONG., 2D SESS., 14 (1962). 

THUS, UNDER THE 1961 AND 1962 AMENDMENTS TO THE SOCIAL SECURITY ACT,
THE STATES ARE PERMITTED TO REMOVE A CHILD FROM A HOME THAT IS
JUDICIALLY DETERMINED TO BE SO UNSUITABLE AS TO "BE CONTRARY TO THE
WELFARE OF SUCH CHILD."  42 U.S.C. 608(A)(1).  THE STATES ARE ALSO
PERMITTED TO TERMINATE AFDC ASSISTANCE TO A CHILD LIVING IN AN
UNSUITABLE HOME, IF THEY PROVIDE OTHER ADEQUATE CARE AND ASSISTANCE FOR
THE CHILD UNDER A GENERAL WELFARE PROGRAM.  42 U.S.C. 604(B).  SEE S.
REP. NO. 1589, 87TH CONG., 2D SESS., 14 (1962).  THE STATUTORY APPROVAL
OF THE FLEMMING RULING, HOWEVER, PRECLUDES THE STATES FROM OTHERWISE
DENYING AFDC ASSISTANCE TO DEPENDENT CHILDREN ON THE BASIS OF THEIR
MOTHERS' ALLEGED IMMORALITY OR TO DISCOURAGE ILLEGITIMATE BIRTHS. 

THE MOST RECENT CONGRESSIONAL AMENDMENTS TO THE SOCIAL SECURITY ACT
FURTHER CORROBORATE THAT FEDERAL PUBLIC WELFARE POLICY NOW RESTS ON A
BASIS CONSIDERABLY MORE SOPHISTICATED AND ENLIGHTENED THAN THE "WORTHY
PERSON" CONCEPT OF EARLIER TIMES.  STATE PLANS ARE NOW REQUIRED TO
PROVIDE FOR A REHABILITATIVE PROGRAM OF IMPROVING AND CORRECTING
UNSUITABLE HOMES, SEC. 402(A), AS AMENDED BY SEC. 201(A)(1)(B), 81
STAT. 877, 42 U.S.C. 602 (A)(14) (1964 ED., SUPP. III); SEC. 406, AS
AMENDED BY SEC. 201(F), 81 STAT. 880, 42 U.S.C. 606 (1964 ED., SUPP.
III); TO PROVIDE VOLUNTARY FAMILY PLANNING SERVICES FOR THE PURPOSE OF
REDUCING ILLEGITIMATE BIRTHS, SEC. 402(A), AS AMENDED BY SEC.
201(A)(1)(C), 81 STAT. 878, 42 U.S.C. 602(A)(15) (1964 ED., SUPP. III);
AND TO PROVIDE A PROGRAM FOR ESTABLISHING THE PATERNITY OF ILLEGITIMATE
CHILDREN AND SECURING SUPPORT FOR THEM, SEC. 402(A), AS AMENDED BY SEC.
201(A)(1)(C), 81 STAT. 878, 42 U.S.C. 602(A)(17) (1964 ED., SUPP.
III). 

IN SUM, CONGRESS HAS DETERMINED THAT IMMORALITY AND ILLEGITIMACY
SHOULD BE DEALT WITH THROUGH REHABILITATIVE MEASURES RATHER THAN
MEASURES THAT PUNISH DEPENDENT CHILDREN, AND THAT PROTECTION OF SUCH
CHILDREN IS THE PARAMOUNT GOAL OF AFDC.  /22/  IN LIGHT OF THE FLEMMING
RULING AND THE 1961, 1962, AND 1968 AMENDMENTS TO THE SOCIAL SECURITY
ACT, IT IS SIMPLY INCONCEIVABLE, AS HEW HAS RECOGNIZED, /23/ THAT
ALABAMA IS FREE TO DISCOURAGE IMMORALITY AND ILLEGITIMACY BY THE DEVICE
OF ABSOLUTE DISQUALIFICATION OF NEEDY CHILDREN.  ALABAMA MAY DEAL WITH
THESE PROBLEMS BY SEVERAL DIFFERENT METHODS UNDER THE SOCIAL SECURITY
ACT.  BUT THE METHOD IT HAS CHOSEN PLAINLY CONFLICTS WITH THE ACT. 

        III. 

ALABAMA'S SECOND JUSTIFICATION FOR ITS SUBSTITUTE FATHER REGULATION
IS THAT "THERE IS A PUBLIC INTEREST IN A STATE NOT UNDERTAKING THE
PAYMENT OF THESE FUNDS TO FAMILIES WHO BECAUSE OF THEIR LIVING
ARRANGEMENTS WOULD BE IN THE SAME SITUATION AS IF THE PARENTS WERE
MARRIED, EXCEPT FOR THE MARRIAGE."  IN OTHER WORDS, THE STATE ARGUES
THAT SINCE IN ALABAMA THE NEEDY CHILDREN OF MARRIED COUPLES ARE NOT
ELIGIBLE FOR AFDC AID SO LONG AS THEIR FATHER IS IN THE HOME, IT IS
ONLY FAIR THAT CHILDREN OF A MOTHER WHO COHABITS WITH A MAN NOT HER
HUSBAND AND NOT THEIR FATHER BE TREATED SIMILARLY.  THE DIFFICULTY WITH
THIS ARGUMENT IS THAT IT FAILS TO TAKE ACCOUNT OF THE CIRCUMSTANCE THAT
CHILDREN OF FATHERS LIVING IN THE HOME ARE IN A VERY DIFFERENT POSITION
FROM CHILDREN OF MOTHERS WHO COHABIT WITH MEN NOT THEIR FATHERS:  THE
CHILD'S FATHER HAS A LEGAL DUTY TO SUPPORT HIM, WHILE THE UNRELATED
SUBSTITUTE FATHER, AT LEAST IN ALABAMA, DOES NOT.  WE BELIEVE CONGRESS
INTENDED THE TERM "PARENT" IN SEC. 406(A) OF THE ACT, 42 U.S.C. 606(A),
TO INCLUDE ONLY THOSE PERSONS WITH A LEGAL DUTY OF SUPPORT. 

THE SOCIAL SECURITY ACT OF 1935 WAS PART OF A BROAD LEGISLATIVE
PROGRAM TO COUNTERACT THE DEPRESSION.  CONGRESS WAS DEEPLY CONCERNED
WITH THE DIRE STRAITS IN WHICH ALL NEEDY CHILDREN IN THE NATION THEN
FOUND THEMSELVES.  /24/  IN AGREEMENT WITH THE PRESIDENT'S COMMITTEE ON
ECONOMIC SECURITY, THE HOUSE COMMITTEE REPORT DECLARED, "THE CORE OF
ANY SOCIAL PLAN MUST BE THE CHILD."  H.R. REP. NO. 615, 74TH CONG., 1ST
SESS., 10 (1935).  THE AFDC PROGRAM HOWEVER, WAS NOT DESIGNED TO AID
ALL NEEDY CHILDREN.  THE PLIGHT OF MOST CHILDREN WAS CAUSED SIMPLY BY
THE UNEMPLOYMENT OF THEIR FATHERS.  WITH RESPECT TO THESE CHILDREN,
CONGRESS PLANNED THAT "THE WORK RELIEF PROGRAM AND . . . THE REVIVAL OF
PRIVATE INDUSTRY" WOULD PROVIDE EMPLOYMENT FOR THEIR FATHERS.  S. REP.
NO. 628, 74TH CONG., 1ST SESS., 17 (1935).  AS THE SENATE COMMITTEE
REPORT STATED:  "MANY OF THE CHILDREN INCLUDED IN RELIEF FAMILIES
PRESENT NO OTHER PROBLEM THAN THAT OF PROVIDING WORK FOR THE
BREADWINNER OF THE FAMILY."  IBID.  IMPLICIT IN THIS STATEMENT IS THE
ASSUMPTION THAT CHILDREN WOULD IN FACT BE SUPPORTED BY THE FAMILY
"BREADWINNER." 

THE AFDC PROGRAM WAS DESIGNED TO MEET A NEED UNMET BY PROGRAMS
PROVIDING EMPLOYMENT FOR BREADWINNERS.  IT WAS DESIGNED TO PROTECT WHAT
THE HOUSE REPORT CHARACTERIZED AS "(ONE CLEARLY DISTINGUISHABLE GROUP
OF CHILDREN."  H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 10 (1935). 
THIS GROUP WAS COMPOSED OF CHILDREN IN FAMILIES WITHOUT A
"BREADWINNER," "WAGE EARNER," OR "FATHER," AS THE REPEATED USE OF THESE
TERMS THROUGHOUT THE REPORT OF THE PRESIDENT'S COMMITTEE, /25/
COMMITTEE HEARINGS /26/  AND REPORTS /27/  AND THE FLOOR DEBATES /28/
MAKES PERFECTLY CLEAR.  TO DESCRIBE THE SORT OF BREADWINNER THAT IT HAD
IN MIND, CONGRESS EMPLOYED THE WORD "PARENT."  49 STAT. 629, AS
AMENDED, 42 U.S.C. 606(A).  A CHILD WOULD BE ELIGIBLE FOR ASSISTANCE IF
HIS PARENT WAS DECEASED, INCAPACITATED OR CONTINUALLY ABSENT. 

THE QUESTION FOR DECISION HERE IS WHETHER CONGRESS COULD HAVE INTENDED
THAT A MAN WAS TO BE REGARDED AS A CHILD'S PARENT SO AS TO DEPRIVE THE
CHILD OF AFDC ELIGIBILITY DESPITE THE CIRCUMSTANCES:  (1) THAT THE MAN
DID NOT IN FACT SUPPORT THE CHILD; AND (2) THAT HE WAS NOT LEGALLY
OBLIGATED TO SUPPORT THE CHILD.  THE STATE CORRECTLY OBSERVES THAT THE
FACT THAT THE MAN IN QUESTION DOES NOT ACTUALLY SUPPORT THE CHILD
CANNOT BE DETERMINATIVE, BECAUSE A NATURAL FATHER AT HOME MAY FAIL
ACTUALLY TO SUPPORT HIS CHILD BUT HIS PRESENCE WILL STILL RENDER THE
CHILD INELIGIBLE FOR ASSISTANCE.  ON THE QUESTION WHETHER THE MAN MUST
BE LEGALLY OBLIGATED TO PROVIDE SUPPORT BEFORE HE CAN BE REGARDED AS
THE CHILD'S PARENT, THE STATE HAS NO SUCH COGENT ANSWER.  WE THINK THE
ANSWER IS QUITE CLEAR:  CONGRESS MUST HAVE MEANT BY THE TERM "PARENT"
AN INDIVIDUAL WHO OWED TO THE CHILD A STATE-IMPOSED LEGAL DUTY OF
SUPPORT. 

IT IS CLEAR, AS WE HAVE NOTED, THAT CONGRESS EXPECTED "BREADWINNERS"
WHO SECURED EMPLOYMENT WOULD SUPPORT THZIR CHILDREN.  THIS
CONGRESSIONAL EXPECTATION IS MOST REASONABLY EXPLAINED ON THE BASIS
THAT THE KIND OF BREADWINNER CONGRESS HAD IN MIND WAS ONE WHO WAS
LEGALLY OBLIGATED TO SUPPORT HIS CHILDREN.  WE THINK IT BEYOND REASON
TO BELIEVE THAT CONGRESS WOULD HAVE CONSIDERED THAT PROVIDING
EMPLOYMENT FOR THE PARAMOUR OF A DESERTED MOTHER WOULD BENEFIT THE
MOTHER'S CHILDREN WHOM HE WAS NOT OBLIGATED TO SUPPORT. 

BY A PARITY OF REASONING, WE THINK THAT CONGRESS MUST HAVE INTENDED
THAT THE CHILDREN IN SUCH A SITUATION REMAIN ELIGIBLE FOR AFDC
ASSISTANCE NOTWITHSTANDING THEIR MOTHER'S IMPROPRIETY.  AFDC WAS
INTENDED TO PROVIDE ECONOMIC SECURITY FOR CHILDREN WHOM CONGRESS COULD
NOT REASONABLY EXPECT WOULD BE PROVIDED FOR BY SIMPLY SECURING
EMPLOYMENT FOR FAMILY BREADWINNERS.  /29/  WE THINK IT APPARENT THAT
NEITHER CONGRESS NOR ANY REASONABLE PERSON WOULD BELIEVE THAT PROVIDING
EMPLOYMENT FOR SOME MAN WHO IS UNDER NO LEGAL DUTY TO SUPPORT A CHILD
WOULD IN ANY WAY PROVIDE MEANINGFUL ECONOMIC SECURITY FOR THAT CHILD. 

A CONTRARY VIEW WOULD REQUIRE US TO ASSUME THAT CONGRESS, AT THE
SAME TIME THAT IT INTENDED TO PROVIDE PROGRAMS FOR THE ECONOMIC
SECURITY AND PROTECTION OF ALL CHILDREN, ALSO INTENDED ARBITRARILY TO
LEAVE ONE CLASS OF DESTITUTE CHILDREN ENTIRELY WITHOUT MEANINGFUL
PROTECTION.  CHILDREN WHO ARE TOLD, AS ALABAMA HAS TOLD THESE
APPELLEES, TO LOOK FOR THEIR FOOD TO A MAN WHO IS NOT IN THE LEAST
OBLIGED TO SUPPORT THEM ARE WITHOUT MEANINGFUL PROTECTION.  SUCH AN
INTERPRETATION OF CONGRESSIONAL INTENT WOULD BE MOST UNREASONABLE, AND
WE DECLINE TO ADOPT IT. 

OUR INTERPRETATION OF THE TERM "PARENT" IN SEC. 406(A) IS STRONGLY
SUPPORTED BY THE WAY THE TERM IS USED IN OTHER SECTIONS OF THE ACT. 
MUST: 

"PROVIDE FOR PROMPT NOTICE TO APPROPRIATE LAW-ENFORCEMENT OFFICIALS
OF THE FURNISHING OF AID TO FAMILIES WITH DEPENDENT CHILDREN IN RESPECT
OF A CHILD WHO HAS BEEN DESERTED OR ABANDONED BY A PARENT."  64 STAT.
550, 42 U.S.C. 602(A)(10).  THE "PARENT" WHOM THIS PROVISION REQUIRES
TO BE REPORTED TO LAW ENFORCEMENT OFFICIALS IS SURELY THE SAME "PARENT"
WHOSE DESERTION MAKES A CHILD ELIGIBLE FOR AFDC ASSISTANCE IN THE FIRST
PLACE.  AND CONGRESS OBVIOUSLY DID NOT INTEND THAT A SO-CALLED "PARENT"
WHO HAS NO LEGAL DUTIES OF SUPPORT BE REFERRED TO LAW ENFORCEMENT
OFFICIALS (AS ALABAMA'S OWN WELFARE REGULATIONS RECOGNIZE), /30/  FOR
THE VERY PURPOSE OF SUCH REFERRALS IS TO INSTITUTE NONSUPPORT
PROCEEDINGS.  SEE HANDBOOK, PT.IV, SECS. 8100-8149.  /31/  WHATEVER
DOUBT THERE MIGHT HAVE BEEN OVER THIS PROPOSITION HAS BEEN COMPLETELY
DISPELLED BY THE 1968 AMENDMENTS TO THE SOCIAL SECURITY ACT, WHICH
PROVIDE THAT THE STATES MUST DEVELOP A PROGRAM: 

     "(I) IN THE CASE OF A CHILD BORN OUT OF WEDLOCK WHO IS

  RECEIVING AID TO FAMILIES WITH DEPENDENT CHILDREN, TO ESTABLISH

  THE PATERNITY OF SUCH CHILD AND SECURE SUPPORT FOR HIM, AND 

      "(II) IN THE CASE OF ANY CHILD RECEIVING SUCH AID WHO HAS
BEEN

  DESERTED OR ABANDONED BY HIS PARENT, TO SECURE SUPPORT FOR SUCH

  CHILD FROM SUCH PARENT (OR FROM ANY OTHER PERSON LEGALLY LIABLE

  FOR SUCH SUPPORT) . . . ."  SEC. 402(A), AS AMENDED BY SEC.

  201(A)(1)(C), 81 STAT. 878, 42 U.S.C. 602(A)(17) (1964 ED., SUPP.

  III). 

ANOTHER PROVISION IN THE 1968 AMENDMENTS REQUIRES THE STATES, EFFECTIVE
JANUARY 1, 1969, TO REPORT TO HEW ANY "PARENT . . . AGAINST WHOM AN
ORDER FOR THE SUPPORT AND MAINTENANCE OF SUCH (DEPENDENT) CHILD OR
CHILDREN HAS BEEN ISSUED BY" A COURT, IF SUCH PARENT IS NOT MAKING THE
REQUIRED SUPPORT PAYMENTS.  SEC. 402(A), AS AMENDED BY SEC. 211(A), 81
STAT. 896, 42 U.S.C. 602(A)(21) (1964 ED., SUPP. III).  STILL ANOTHER
AMENDMENT REQUIRES THE STATES TO COOPERATE WITH HEW IN LOCATING ANY
PARENT AGAINST WHOM A SUPPORT PETITION HAS BEEN FILED IN ANOTHER STATE,
AND IN SECURING COMPLIANCE WITH ANY SUPPORT ORDER ISSUED BY ANOTHER
STATE, SEC. 402(A), AS AMENDED BY SEC. 211(A), 81 STAT. 897, 42 U.S.C.
602(A)(22) (1964 ED., SUPP. III). 

THE PATTERN OF THIS LEGISLATION COULD NOT BE CLEARER.  EVERY EFFORT
IS TO BE MADE TO LOCATE AND SECURE SUPPORT PAYMENTS FROM PERSONS
LEGALLY OBLIGATED TO SUPPORT A DESERTED CHILD.  /32/  THE UNDERLYING
POLICY AND CONSISTENCY IN STATUTORY INTERPRETATION DICTATE THAT THE
"PARENT" REFERRED TO IN THESE STATUTORY PROVISIONS IS THE SAME PARENT
AS THAT IN SEC. 406(A).  THE PROVISIONS SEEK TO SECURE PARENTAL SUPPORT
IN LIEU OF AFDC SUPPORT FOR DEPENDENT CHILDREN.  SUCH PARENTAL SUPPORT
CAN BE SECURED ONLY WHERE THE PARENT IS UNDER A STATE-IMPOSED LEGAL
DUTY TO SUPPORT THE CHILD.  CHILDREN WITH ALLEGED SUBSTITUTE PARENTS
WHO OWE THEM NO DUTY OF SUPPORT ARE ENTIRELY UNPROTECTED BY THESE
PROVISIONS.  WE THINK THAT THESE PROVISIONS CORROBORATE THE INTENT OF
CONGRESS THAT THE ONLY KIND OF "PARENT," UNDER SEC. 406(A), WHOSE
PRESENCE IN THE HOME WOULD PROVIDE ADEQUATE ECONOMIC PROTECTION FOR A
DEPENDENT CHILD IS ONE WHO IS LEGALLY OBLIGATED TO SUPPORT HIM. 
CONSEQUENTLY, IF ALABAMA BELIEVES IT NECESSARY THAT IT BE ABLE TO
DISQUALIFY A CHILD ON THE BASIS OF A MAN WHO IS NOT UNDER SUCH A DUTY
OF SUPPORT, ITS ARGUMENTS SHOULD BE ADDRESSED TO CONGRESS AND NOT THIS
COURT.  /33/

        IV. 

ALABAMA'S SUBSTITUTE FATHER REGULATION, AS WRITTEN AND AS APPLIED IN
THIS CASE, REQUIRES THE DISQUALIFICATION OF OTHERWISE ELIGIBLE
DEPENDENT CHILDREN IF THEIR MOTHER "COHABITS" WITH A MAN WHO IS NOT
OBLIGATED BY ALABAMA LAW TO SUPPORT THE CHILDREN.  THE REGULATION IS
THEREFORE INVALID BECAUSE IT DEFINES "PARENT" IN A MANNER THAT IS
INCONSISTENT WITH SEC. 406(A) OF THE SOCIAL SECURITY ACT.  42 U.S.C.
606(A).  /34/  IN DENYING AFDC ASSISTANCE TO APPELLEES ON THE BASIS OF
THIS INVALID REGULATION, ALABAMA HAS BREACHED ITS FEDERALLY IMPOSED
OBLIGATION TO FURNISH "AID TO FAMILIES WITH DEPENDENT CHILDREN . .
.WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE INDIVIDUALS . . . ."  42
U.S.C. 602(A)(9) (1964 ED., SUPP. II).  OUR CONCLUSION MAKES
UNNECESSARY CONSIDERATION OF APPELLEES' EQUAL-PROTECTION CLAIM, UPON
WHICH WE INTIMATE NO VIEWS. 

WE THINK IT WELL, IN CONCLUDING, TO EMPHASIZE THAT NO LEGITIMATE
INTEREST OF THE STATE OF ALABAMA IS DEFEATED BY THE DECISION WE
ANNOUNCE TODAY.  THE STATE'S INTEREST IN DISCOURAGING ILLICIT SEXUAL
BEHAVIOR AND ILLEGITIMACY MAY BE PROTECTED BY OTHER MEANS, SUBJECT TO
CONSTITUTIONAL LIMITATIONS INCLUDING STATE PARTICIPATION IN AFDC
REHABILITATIVE PROGRAMS.  ITS INTEREST IN ECONOMICALLY ALLOCATING ITS
LIMITED AFDC RESOURCES MAY BE PROTECTED BY ITS UNDISPUTED POWER TO SET
THE LEVEL OF BENEFITS AND THE STANDARD OF NEED, AND BY ITS TAKING INTO
ACCOUNT IN DETERMINING WHETHER A CHILD IS NEEDY ALL ACTUAL AND REGULAR
CONTRIBUTIONS TO HIS SUPPORT. 

ALL RESPONSIBLE GOVERNMENTAL AGENCIES IN THE NATION TODAY RECOGNIZE
THE ENORMITY AND PERVASIVENESS OF SOCIAL ILLS CAUSED BY POVERTY.  THE
CAUSES OF AND CURES FOR POVERTY ARE CURRENTLY THE SUBJECT OF MUCH
DEBATE.  WE HOLD TODAY ONLY THAT CONGRESS HAS MADE AT LEAST THIS ONE
DETERMINATION:  THAT DESTITUTE CHILDREN WHO ARE LEGALLY FATHERLESS
CANNOT BE FLATLY DENIED FEDERALLY FUNDED ASSISTANCE ON THE TRANSPARENT
FICTION THAT THEY HAVE A SUBSTITUTE FATHER. 

              AFFIRMED. 

/1/  THE PROGRAM WAS ORIGINALLY KNOWN AS "AID TO DEPENDENT
CHILDREN."  49 STAT. 627.  ALABAMA'S PROGRAM STILL BEARS THIS TITLE. 
IN THE 1962 AMENDMENTS TO THE ACT, HOWEVER, THE NAME OF THE PROGRAM WAS
CHANGED TO "AID AND SERVICES TO NEEDY FAMILIES WITH CHILDREN," 76 STAT.
185.  THROUGHOUT THIS OPINION, THE PROGRAM WILL BE REFERRED TO AS "AID
TO FAMILIES WITH DEPENDENT CHILDREN," OR AFDC. 

/2/  "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

/3/  SINCE APPELLEES SOUGHT INJUNCTIVE RELIEF RESTRAINING THE
APPELLANT STATE OFFICIALS FROM THE ENFORCEMENT, OPERATION, AND
EXECUTION OF A STATEWIDE REGULATION ON THE GROUND OF ITS
UNCONSTITUTIONALITY, THE THREE-JUDGE COURT WAS PROPERLY CONVENED
PURSUANT TO 28 U.S.C. 2281.  SEE ALABAMA PUBLIC SERVICE COMM'N V.
SOUTHERN R. CO., 341 U.S. 341, 343, N. 3 (1951).  SEE ALSO FLORIDA LIME
GROWERS V. JACOBSEN, 362 U.S. 73 (1960); ALLEN V. GRAND CENTRAL
AIRCRAFT CO., 347 U.S. 535 (1954).  JURISDICTION WAS CONFERRED ON THE
COURT BY 28 U.S.C. 1343(3) AND (4).  THE DECISION WE ANNOUNCE TODAY
HOLDS ALABAMA'S SUBSTITUTE FATHER REGULATION INVALID AS INCONSISTENT
WITH SUBCHAPTER IV OF THE SOCIAL SECURITY ACT.  WE INTIMATE NO VIEWS AS
TO WHETHER AND UNDER WHAT CIRCUMSTANCES SUITS CHALLENGING STATE AFDC
PROVISIONS ONLY ON THE GROUND THAT THEY ARE INCONSISTENT WITH THE
FEDERAL STATUTE MAY BE BROUGHT IN FEDERAL COURTS.  SEE GENERALLY NOTE,
FEDERAL JUDICIAL REVIEW OF STATE WELFARE PRACTICES, 67 COL.L.REV.  84
(1967). 

/4/  WE REJECT APPELLANTS' ARGUMENT THAT APPELLEES WERE REQUIRED TO
EXHAUST THEIR ADMINISTRATIVE REMEDIES PRIOR TO BRINGING THIS ACTION. 
PURSUANT TO THE REQUIREMENT OF THE SOCIAL SECURITY ACT THAT STATES MUST
GRANT AFDC APPLICANTS WHO ARE DENIED AID "AN OPPORTUNITY FOR A FAIR
HEARING BEFORE THE STATE AGENCY," 42 U.S.C. 602(A)(4) (1964 ED., SUPP.
II), ALABAMA PROVIDES FOR ADMINISTRATIVE REVIEW OF SUCH DENIALS. 
ALABAMA MANUAL FOR ADMINISTRATION OF PUBLIC ASSISTANCE, PT. I, SEC. II,
PP. V-5 TO V-12.  DECISIONS OF THIS COURT, HOWEVER, ESTABLISH THAT A
PLAINTIFF IN AN ACTION BROUGHT UNDER THE CIVIL RIGHTS ACT, 42 U.S.C.
1983, 28 U.S.C. 1343, IS NOT REQUIRED TO EXHAUST ADMINISTRATIVE
REMEDIES, WHERE THE CONSTITUTIONAL CHALLENGE IS SUFFICIENTLY
SUBSTANTIAL, AS HERE, TO REQUIRE THE CONVENING OF A THREE-JUDGE COURT. 
DAMICO V. CALIFORNIA, 389 U.S. 416 (1967).  SEE ALSO MCNEESE V. BOARD
OF EDUCATION, 373 U.S. 668 (1963); MONROE V. PAPE, 365 U.S. 167, 180
183 (1961).  FOR A GENERAL DISCUSSION OF REVIEW IN THE FEDERAL COURTS
OF STATE WELFARE PRACTICES, SEE NOTE, FEDERAL JUDICIAL REVIEW OF STATE
WELFARE PRACTICES, 67 COL.L.REV.  84 (1967). 

/5/  SMITH V. KING, 277 F.SUPP.  31 (D.C.M.D. ALA. 1967). 

/6/  A NEEDY CHILD, TO QUALIFY FOR THE AFDC ASSISTANCE, MUST BE UNDER
THE AGE OF 18, OR UNDER THE AGE OF 21 AND A STUDENT, AS DEFINED BY
HEW.  79 STAT. 422, 42 U.S.C. 606(A)(2)(A) AND (B) (1964 ED., SUPP.
II). 

/7/  THE STATES ARE ALSO PERMITTED TO CONSIDER AS DEPENDENT CHILDREN
NEEDY CHILDREN WHO HAVE AN UNEMPLOYED PARENT, AS IS DISCUSSED IN N. 13,
INFRA, AND NEEDY CHILDREN WITHOUT A PARENT WHO HAVE UNDER CERTAIN
CIRCUMSTANCES BEEN PLACED IN FOSTER HOMES OR CHILD CARE INSTITUTIONS. 
SEE 42 U.S.C. 607, 608. 

/8/  ALABAMA MANUAL FOR ADMINISTRATION OF PUBLIC ASSISTANCE, PT. I,
C. II, SEC. VI. 

/9/  UNDER THE REGULATION, WHEN "THERE APPEARS TO BE A SUBSTITUTE
FATHER," THE MOTHER BEARS THE BURDEN OF PROVING THAT SHE HAS
DISCONTINUED HER RELATIONSHIP WITH THE MAN BEFORE HER AFDC ASSISTANCE
WILL BE RESUMED.  THE MOTHER'S CLAIM OF DISCONTINUANCE MUST BE
"CORROBORATED BY AT LEAST TWO ACCEPTABLE REFERENCES IN A POSITION TO
KNOW.  EXAMPLES OF ACCEPTABLE REFERENCES ARE:  LAW-ENFORCEMENT
OFFICIALS; MINISTERS; NEIGHBORS; GROCERS."  THERE IS NO HEARING PRIOR
TO THE TERMINATION OF AID, BUT AN APPLICANT DENIED AID MAY SECURE STATE
ADMINISTRATIVE REVIEW. 

/10/  UNDER ALABAMA STATUTES, A LEGAL DUTY OF SUPPORT IS IMPOSED
ONLY UPON A "PARENT," WHO IS DEFINED AS (1) A "NATURAL LEGAL PARENT,"
(2) ONE WHO HAS "LEGALLY ACQUIRED THE CUSTODY OF" THE CHILD, AND (3)
"THE FATHER OF SUCH CHILD, . . . THOUGH BORN OUT OF LAWFUL WEDLOCK." 
ALA. CODE, TIT. 34, SEC. 89, 90; ALA. CODE, TIT. 27, SECS. 12(1), 12(4)
(1965 SUPP.).  LAW V. STATE, 238 ALA. 428, 191 SO. 803 (1939).  THE
ALABAMA COURTS HAVE INTERPRETED THE STATUTE TO IMPOSE A LEGAL DUTY OF
SUPPORT UPON ONE WHO HAS "PUBLICLY ACKNOWLEDGED OR TREATED THE CHILD AS
HIS OWN, IN A MANNER TO INDICATE HIS VOLUNTARY ASSUMPTION OF
PARENTHOOD" IRRESPECTIVE OF WHETHER THE ALLEGED PARENT IS IN FACT THE
CHILD'S REAL FATHER.  LAW V. STATE, 238 ALA. 428, 430, 191 SO. 803, 805
(1939).  IT SEEMS CLEAR, HOWEVER, THAT EVEN A STEPFATHER WHO IS NOT THE
CHILD'S NATURAL PARENT AND HAS NOT ACQUIRED LEGAL CUSTODY OF HIM IS
UNDER AN OBLIGATION OF SUPPORT ONLY IF HE HAS MADE THIS "VOLUNTARY
ASSUMPTION OF PARENTHOOD."  SEE CHANDLER V. WHATLEY, 238 ALA. 206, 189
SO. 751 (1939); ENGLEHARDT V. YUNG'S HEIRS, 76 ALA. 534, 540 (1884);
NICHOLAS V. STATE, 32 ALA.APP.  574, 28 SO.2D 422 (1946).  FURTHER, THE
ALABAMA SUPREME COURT HAS EMPHASIZED THAT THE ALLEGED FATHER'S
INTENTION TO SUPPORT THE CHILD, REQUISITE TO A FINDING OF VOLUNTARY
ASSUMPTION OF PARENTHOOD, "SHOULD NOT BE SLIGHTLY (SIC) NOR HASTILY
INFERRED . . . ."  ENGLEHARDT V. YUNG'S HEIRS, 76 ALA. 534, 540
(1884). 

/11/  ALABAMA'S SUBSTITUTE FATHER REGULATION HAS BEEN NEITHER
APPROVED NOR DISAPPROVED BY HEW.  THERE HAS, HOWEVER, BEEN CONSIDERABLE
CORRESPONDENCE BETWEEN THE ALABAMA AND FEDERAL AUTHORITIES CONCERNING
THE REGULATION, AS IS DISCUSSED IN N. 23, INFRA. 

/12/  UNLESS HEW APPROVES THE PLAN, FEDERAL FUNDS WILL NOT BE MADE
AVAILABLE FOR ITS IMPLEMENTATION.  42 U.S.C. 601.  FURTHER, HEW MAY
ENTIRELY OR PARTIALLY TERMINATE FEDERAL PAYMENTS IF "IN THE
ADMINISTRATION OF THE (STATE) PLAN THERE IS A FAILURE TO COMPLY
SUBSTANTIALLY WITH ANY PROVISION REQUIRED BY SECTION 602(A) OF THIS
TITLE TO BE INCLUDED IN THE PLAN."  SEC. 245, 81 STAT. 918, AS AMENDED,
42 U.S.C. 604 (1964 ED., SUPP. III).  SEE GENERALLY ADVISORY COMMISSION
REPORT, SUPRA, AT 61-80. 

/13/  COMMENCING IN 1961, FEDERAL MATCHING FUNDS HAVE BEEN MADE
AVAILABLE UNDER THE AFDC SUBCHAPTER OF THE SOCIAL SECURITY ACT FOR A
STATE WHICH GRANTS ASSISTANCE TO NEEDY CHILDREN WHO HAVE TWO ABLE
BODIED PARENTS LIVING IN THE HOME, BUT WHO HAVE BEEN "DEPRIVED OF
PARENTAL SUPPORT OR CARE BY REASON OF THE UNEMPLOYMENT . . . OF A
PARENT."  42 U.S.C. 607.  PARTICIPATION IN THIS PROGRAM FOR AID TO
DEPENDENT CHILDREN OF UNEMPLOYED PARENTS IS NOT OBLIGATORY ON THE
STATES, AND THE COURT HAS BEEN ADVISED THAT ONLY 21 STATES
PARTICIPATE.  ALABAMA DOES NOT PARTICIPATE. 

/14/  HEW'S HANDBOOK, IN PT. IV, SEC. 3120, PROVIDES THAT:  "A NEEDY
INDIVIDUAL . . . (UNDER AFDC) IS ONE WHO DOES NOT HAVE INCOME AND
RESOURCES SUFFICIENT TO ASSURE ECONOMIC SECURITY, THE STANDARD OF WHICH
MUST BE DEFINED BY EACH STATE.  THE ACT RECOGNIZES THAT THE STANDARD SO
DEFINED DEPENDS UPON THE CONDITIONS EXISTING IN EACH STATE."  THE
LEGISLATIVE HISTORY OF THE ACT ALSO MAKES CLEAR THAT THE STATES HAVE
POWER TO DETERMINE WHO IS "NEEDY" FOR PURPOSES OF AFDC.  THUS THE
REPORTS OF THE HOUSE WAYS AND MEANS COMMITTEE AND SENATE FINANCE
COMMITTEE MAKE CLEAR THAT THE STATES ARE FREE TO IMPOSE ELIGIBILITY
REQUIREMENTS AS TO "MEANS."  H.R. REP. NO. 615, 74TH CONG., 1ST SESS.,
24 (1935); S. REP. NO. 628, 74TH CONG., 1ST SESS., 36 (1935).  THE
FLOOR DEBATES CORROBORATE THAT THIS WAS CONGRESS' INTENT.  FOR EXAMPLE,
REPRESENTATIVE VINSON EXPLAINED THAT "NEED IS TO BE DETERMINED UNDER
THE STATE LAW."  79 CONG.REC.  5471 (1935). 

/15/  THE RATHER COMPLICATED FORMULA FOR FEDERAL FUNDING IS
CONTAINED IN 42 U.S.C. 603.  THE LEVEL OF BENEFITS IS WITHIN THE
STATE'S DISCRETION, BUT THE FEDERAL GOVERNMENT'S CONTRIBUTION IS A
VARYING PERCENTAGE OF THE TOTAL AFDC EXPENDITURES WITHIN EACH STATE. 
SEE H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 12, 24 (1935); S. REP.
NO. 628, 74TH CONG., 1ST SESS., 4, 36 (1935).  THE BENEFIT LEVELS VARY
GREATLY FROM STATE TO STATE.  FOR EXAMPLE, FOR MAY 1967, THE AVERAGE
PAYMENT TO A FAMILY UNDER AFDC WAS ABOUT $224 IN NEW JERSEY, $221 IN
NEW YORK, $39 IN MISSISSIPPI, $20 IN PUERTO RICO, AND $53 IN ALABAMA. 
HEARINGS ON H.R. 12080 BEFORE THE SENATE COMMITTEE ON FINANCE, 90TH
CONG., 1ST SESS., PT. 1, 296-297 (1967).  SEE GENERALLY HARVITH,
FEDERAL EQUAL PROTECTION AND WELFARE ASSISTANCE, 31 ALBANY L.REV.  210,
226-227 (1967).     /16/  INDEED, THE ACT REQUIRES THAT IN DETERMINING
NEED THE STATE AGENCY "SHALL . . . TAKE INTO CONSIDERATION ANY OTHER
INCOME AND RESOURCES OF ANY CHILD OR RELATIVE CLAIMING AID TO FAMILIES
WITH DEPENDENT CHILDREN . . . ."  42 U.S.C. 602(A)(7) (1964 ED., SUPP.
II).  REGULATIONS OF HEW, WHICH CLEARLY COMPORT WITH THE STATUTE,
RESTRICT THE RESOURCES WHICH ARE TO BE TAKEN INTO ACCOUNT UNDER SEC.
602 TO THOSE "THAT ARE, IN FACT, AVAILABLE TO AN APPLICANT OR RECIPIENT
FOR CURRENT USE ON A REGULAR BASIS . . . ."  THIS REGULATION PROPERLY
EXCLUDES FROM CONSIDERATION RESOURCES WHICH ARE MERELY ASSUMED TO BE
AVAILABLE TO THE NEEDY INDIVIDUAL.  HANDBOOK, PT. IV, SEC. 3131(7). 
SEE ALSO SECS. 3120, 3123, 3124, 3131(10), AND 3131(11).     /17/  FOR
A DISCUSSION OF THE MOTHERS' PENSION WELFARE PROGRAMS, SEE J. BROWN,
PUBLIC RELIEF 1929-1939, AT 26-32 (1940). 

/18/  BELL QUOTES A CASE RECORD, FOR EXAMPLE, WHERE A MOTHER WHOSE
CONDUCT WITH MEN DISPLEASED A SOCIAL WORKER WAS REQUIRED, AS A
CONDITION OF CONTINUED ASSISTANCE, TO SIGN AN AFFIDAVIT STATING THAT,
"I . . . DO HEREBY PROMISE AND AGREE THAT UNTIL SUCH TIME AS THE
FOLLOWING AGREEMENT IS RESCINDED, I WILL NOT HAVE ANY MALE CALLERS
COMING TO MY HOUSE NOR MEETING ME ELSEWHERE UNDER IMPROPER
CONDITIONS."  BELL, SUPRA, AT 48. 

/19/  STATE LETTER NO. 452, BUREAU OF PUBLIC ASSISTANCE, SOCIAL
SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. 

/20/  THE SENATE FINANCE COMMITTEE REPORT EXPLAINED THE PURPOSE OF
THE AMENDMENT AS FOLLOWS: 

"THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE IN JANUARY 1961
ADVISED THE STATE AGENCIES ADMINISTERING TITLE IV OF THE SOCIAL
SECURITY ACT-- AID TO DEPENDENT CHILDREN-- THAT AFTER JUNE 30, 1961,
GRANTS TO STATES WOULD NOT BE AVAILABLE IF THE STATE TERMINATED
ASSISTANCE TO CHILDREN IN A HOME DETERMINED TO BE UNSUITABLE UNLESS THE
STATE MADE OTHER PROVISION FOR THE CHILDREN AFFECTED.  SECTION 4 OF
YOUR COMMITTEE'S BILL WOULD PROVIDE THAT THE REQUIREMENT MADE BY THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE WOULD NOT BECOME EFFECTIVE
IN STATES WHICH TOOK THE TYPE OF ACTION DESCRIBED, AS THE RESULT OF A
STATE STATUTE REQUIRING SUCH ACTION, BEFORE THE 61ST DAY AFTER THE END
OF THE REGULAR SESSION OF SUCH STATE'S LEGISLATURE, SUCH REGULAR
SESSION BEGINNING FOLLOWING THE ENACTMENT OF THIS SECTION.  ONE OR TWO
OF THE STATES AFFECTED BY THE DEPARTMENT'S RULING DO NOT HAVE REGULAR
SESSIONS OF THEIR LEGISLATURES IN 1961 AND WOULD ACCORDINGLY BE
SAFEGUARDED AGAINST THE WITHHOLDING OF FUNDS UNTIL SUCH TIME AS THEIR
LEGISLATURES HAVE HAD REGULAR SESSIONS AND HAVE HAD AN OPPORTUNITY TO
MODIFY THE STATE STATUTES INVOLVED."  S. REP. NO. 165, 87TH CONG., 1ST
SESS., 6 (1961). 

/21/  FOR A DISCUSSION BY THEN SECRETARY OF HEW RIBICOFF AND NOW
SECRETARY COHEN CONCERNING THE 1961 AMENDMENTS IN RELATION TO THE
FLEMMING RULING, SEE HEARINGS ON H.R. 10032 BEFORE THE HOUSE COMMITTEE
ON WAYS AND MEANS, 87TH CONG., 2D SESS., 294-297, 305-307 (1962). 

/22/  THE NEW EMPHASIS ON REHABILITATIVE SERVICES BEGAN WITH THE
KENNEDY ADMINISTRATION.  PRESIDENT KENNEDY, IN HIS 1962 WELFARE MESSAGE
TO THE CONGRESS, OBSERVED THAT COMMUNITIES THAT HAD ATTEMPTED TO CUT
DOWN WELFARE EXPENDITURES THROUGH ARBITRARY CUTBACKS HAD MET WITH
LITTLE SUCCESS, BUT THAT "COMMUNITIES WHICH HAVE TRIED THE
REHABILITATIVE ROAD-- THE ROAD I HAVE RECOMMENDED TODAY-- HAVE
DEMONSTRATED WHAT CAN BE DONE WITH CREATIVE . . . PROGRAMS OF
PREVENTION AND SOCIAL REHABILITATION."  SEE HEARINGS ON H.R. 10606
BEFORE THE SENATE COMMITTEE ON FINANCE, 87TH CONG., 2D SESS., 109
(1962).  SOME INSIGHT INTO THE MOOF OF THE CONGRESS THAT APPROVED THE
FLEMMING RULING IN 1961 WITH RESPECT TO THIS MATTER IS PROVIDED BY AN
EXCHANGE DURING THE DEBATES ON THE FLOOR OF THE HOUSE.  REPRESENTATIVE
GROSS INQUIRED OF REPRESENTATIVE MILLS, CHAIRMAN OF THE HOUSE WAYS AND
MEANS COMMITTEE, CONCERNING THE AFDC STATUS OF ILLEGITIMATE CHILDREN. 
AFTER A BRIEF DISCUSSION IN WHICH REPRESENTATIVE MILLS EXPLAINED THAT
HE WAS LOOKING INTO THE PROBLEM OF ILLEGITIMACY, REPRESENTATIVE HOFFMAN
ASKED WHETHER REPRESENTATIVE GROSS WAS TAKING THE POSITION THAT "THESE
INNOCENT CHILDREN, NO MATTER WHAT THE CIRCUMSTANCES UNDER WHICH THEY
WERE BORN, ARE TO BE DEPRIVED OF THE NECESSITIES OF LIFE." 
REPRESENTATIVE GROSS REPLIED, "OH, NO; NOT AT ALL," AND AGREED WITH
REPRESENTATIVE HOFFMAN'S SUBSEQUENT STATEMENT THAT THE PROPER APPROACH
WOULD BE TO ATTEMPT TO PREVENT ILLEGITIMATE BIRTHS.  107 CONG.REC. 
3766 (1961).  SEE GENERALLY BELL, SUPRA, AT 152-173. 

/23/  BOTH BEFORE AND AFTER THE;FLEMMING RULING, THE ALABAMA AND
FEDERAL AUTHORITIES CORRESPONDED WITH CONSIDERABLE FREQUENCY CONCERNING
THE STATE'S SUITABLE HOME AND SUBSTITUTE FATHER POLICIES.  IN APRIL
1959, HEW BY LETTER STATED THAT "SUITABLE HOME" LEGISLATION THEN BEING
PROPOSED BY ALABAMA RAISED SUBSTANTIAL QUESTIONS OF CONFORMITY WITH THE
SOCIAL SECURITY ACT, BECAUSE IT SEEMED TO DEPRIVE CHILDREN OF AFDC
ASSISTANCE ON THE BASIS OF ILLEGITIMATE BIRTHS IN THE FAMILY.  IN MAY
1959 AND AGAIN IN AUGUST 1959 NEW SUITABLE HOME POLICIES WERE SUBMITTED
AND WERE REJECTED BY HEW.  NEGOTIATIONS CONTINUED, AND IN JUNE 1961,
HEW RESPONDED THAT THE NEWEST LEGISLATIVE PROPOSAL WAS INCONSISTENT
WITH CONGRESS' STATUTORY APPROVAL OF THE FLEMMING RULING BECAUSE (1)
ASSISTANCE WOULD BE DENIED TO CHILDREN ON THE BASIS THAT THEIR HOMES
WERE UNSUITABLE BUT THEY WOULD BE PERMITTED TO REMAIN IN THE HOMES; AND
(2) A HOME COULD BE FOUND UNSUITABLE SIMPLY ON THE BASIS OF THE CHILD'S
BIRTH STATUS.  STILL LATER, ON JUNE 12, 1963, HEW REJECTED ANOTHER
ALABAMA SUITABLE HOME PROVISION ON THE GROUND THAT IT PROVIDED FOR
DENIAL OF AFDC ASSISTANCE WHILE THE CHILD REMAINED IN THE HOME WITHOUT
PROVIDING FOR OTHER "ADEQUATE CARE AND ASSISTANCE," AS REQUIRED BY THE
1962 AMENDMENT TO THE FEDERAL ACT.  THE EVIDENCE BELOW ESTABLISHES THAT
SOON AFTER APPELLANT KING'S APPOINTMENT AS COMMISSIONER, HE UNDERTOOK A
STUDY THAT LED TO THE ADOPTION OF THE SUBSTITUTE FATHER REGULATION. 
WHEN THIS REGULATION WAS SUBMITTED TO HEW, IT RESPONDED THAT THE
REGULATION DID NOT CONFORM WITH 42 U.S.C. 604(B) FOR THE SAME REASONS
AS ITS PREDECESSOR LEGISLATIVE PROPOSALS.  ADDITIONAL CORRESPONDENCE
ENSUED, BUT HEW NEVER APPROVED THE REGULATION. 

/24/  SEE H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 9-10 (1935)
(CHARACTERIZING CHILDREN AS "THE MOST TRAGIC VICTIMS OF THE
DEPRESSION"); S. REP. NO. 628, 74TH CONG., 1ST SESS., 16-17 (1935)
(DECLARING THAT THE "HEART OF ANY PROGRAM FOR SOCIAL SECURITY MUST BE
THE CHILD"). 

/25/  SEE H.R. DOC. NO. 81, 74TH CONG., 1ST SESS., 4-5, 29-30
(1935). 

/26/  HEARINGS ON H.R. 4120 BEFORE THE HOUSE COMMITTEE ON WAYS AND
MEANS, 74TH CONG., 1ST SESS., 158-161, 166, 174, 262-264 (1935);
HEARINGS ON S. 1130 BEFORE THE SENATE COMMITTEE ON FINANCE, 74TH CONG.,
1ST SESS., 102, 181, 337-338, 647, 654 (1935). 

/27/  SEE H.R. REP. NO. 615, 74TH CONG., 1ST SESS., 10 (1935); S.
REP. NO. 628, 74TH CONG., 1ST SESS., 17-18 (1935). 

/28/  SEE 79 CONG.REC.  5468, 5476, 5786, 5861 (1935). 

/29/  AS THE SENATE COMMITTEE REPORT STATED, AFDC WAS INTENDED TO
PROVIDE FOR CHILDREN WHO "WILL NOT BE BENEFITED THROUGH WORK PROGRAMS
OR THE REVIVAL OF INDUSTRY."  S. REP. NO. 628, 74TH CONG., 1ST SESS.,
17 (1935). 

/30/  ALABAMA'S OWN WELFARE REGULATIONS STATE:  "REPORT PARENTS WHO
ARE LEGALLY RESPONSIBLE UNDER ALABAMA LAW.  THERSE ARE THE NATURAL OR
ADOPTIVE PARENTS OF A CHILD.  A NATURAL PARENT INCLUDES THE FATHER OF A
CHILD BORN OUT OF WEDLOCK, IF PATERNITY HAS BEEN LEGALLY ESTABLISHED. 
IT DOES NOT APPLY TO A STEPPARENT."  ALABAMA MANUAL FOR ADMINISTRATION
OF PUBLIC ASSISTANCE, PT. I, C. II, P. 36. 

/31/ HEW REQUIRES STATES TO GIVE NOTICE OF DESERTION ONLY WITH
RESPECT TO PERSONS WHO, "UNDER STATE LAWS, ARE DEFINED AS PARENTS . . .
FOR THE SUPPORT OF MINOR CHILDREN, AND AGAINST WHOM LEGAL ACTION MAY BE
TAKEN UNDER SUCH LAWS FOR DESERTION OR ABANDONMENT."  HANDBOOK, PT. IV,
SEC. 8131(2).  AND, AS DISCUSSED IN N. 10, SUPRA, THE ALLEGED
SUBSTITUTE FATHER IN THE CASE AT BAR IS NOT LEGALLY OBLIGATED BY
ALABAMA LAW TO SUPPORT THE APPELLEE CHILDREN.  SEE ALSO HANDBOOK, PT.
IV, SEC. 3412(4) (PROVIDING THAT A STEPPARENT NOT REQUIRED BY STATE LAW
TO SUPPORT A CHILD NEED NOT BE CONSIDERED THE CHILD'S PARENT). 

/32/  ANOTHER 1968 AMENDMENT PROVIDES FOR THE COOPERATION OF THE
INTERNAL REVENUE SERVICE IN LOCATING MISSING "PARENTS."  SEC. 410, 81
STAT. 897. 

/33/  WE INTIMATE NO VIEWS WHATSOEVER ON THE CONSTITUTIONALITY OF
ANY SUCH HYPOTHETICAL LEGISLATIVE PROPOSAL. 

/34/  THERE IS OF COURSE NO QUESTION THAT THE FEDERAL GOVERNMENT,
UNLESS BARRED BY SOME CONTROLLING CONSTITUTIONAL PROHIBITION, MAY
IMPOSE THE TERMS AND CONDITIONS UPON WHICH ITS MONEY ALLOTMENTS TO THE
STATES SHALL BE DISBURSED, AND THAT ANY STATE LAW OR REGULATION
INCONSISTENT WITH SUCH FEDERAL TERMS AND CONDITIONS IS TO THAT EXTENT
INVALID.  SEE IVANHOE IRRIGATION DISTRICT V. MCCRACKEN, 357 U.S. 275,
295 (1958); OKLAHOMA V. CIVIL SERVICE COMM'N 330 U.S. 127, 143 (1947). 
IT IS EQUALLY CLEAR THAT TO THE EXTENT HEW HAS APPROVED ANY SO-CALLED
"MAN-IN-THE-HOUSE" PROVISION WHICH CONFLICTS WITH SEC. 406(A) OF THE
SOCIAL SECURITY ACT, 42 U.S.C.606(A), SUCH APPROVAL IS INCONSISTENT
WITH THE CONTROLLING FEDERAL STATUTE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE COURT FOLLOWS THE STATUTORY ROUTE IN REACHING THE RESULT THAT I
REACH ON CONSTITUTIONAL GROUNDS.  IT IS, OF COURSE, TRADITIONAL THAT
OUR DISPOSITION OF CASES SHOULD, IF POSSIBLE, BE ON STATUTORY RATHER
THAN CONSTITUTIONAL GROUNDS UNLESS PROBLEMS OF STATUTORY CONSTRUCTION
ARE INSURMOUNTABLE.  E.G., HARMON V. BRUCKER, 355 U.S. 579, 581. 

WE DO HAVE, HOWEVER, IN THIS CASE A LONG-STANDING ADMINISTRATIVE
CONSTRUCTION THAT APPROVES STATE AFDC PLANS CONTAINING A MAN-IN-THE
HOUSE PROVISION.  /1/  CERTAINLY THAT EARLY ADMINISTRATIVE
CONSTRUCTION, WHICH SO FAR AS I CAN ASCERTAIN HAS BEEN A CONSISTENT
ONE, IS ENTITLED TO GREAT WEIGHT.  E.G., POWER REACTOR CO. V.
ELECTRICIANS, 367 U.S. 396, 408. 

THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE BALKED AT THE
ALABAMA PROVISION ONLY BECAUSE IT REACHED ALL NONMARITAL SEXUAL
RELATIONS OF THE MOTHER NOT JUST NONMARITAL RELATIONS ON A REGULAR
BASIS IN THE MOTHER'S HOUSE.  /2/  SINCE I CANNOT DISTINGUISH BETWEEN
THE TWO CATEGORIES, I REACH THE CONSTITUTIONAL QUESTION.  /3/ 

THE ALABAMA REGULATION DESCRIBES THREE SITUATIONS IN WHICH NEEDY
CHILDREN, OTHERWISE ELIGIBLE FOR RELIEF, ARE TO BE DENIED FINANCIAL
ASSISTANCE.  IN NONE OF THESE IS THE CHILD TO BLAME.  THE
DISQUALIFICATION OF THE FAMILY, AND HENCE THE NEEDY CHILD, TURNS UPON
THE "SIN" OF THE MOTHER.  /4/ 

FIRST, IF A MAN NOT MARRIED TO THE MOTHER AND NOT THE FATHER OF THE
CHILDREN LIVES IN HER HOME FOR PURPOSES OF COHABITING WITH HER, THE
CHILDREN ARE CAST INTO THE OUTER DARKNESS. 

SECOND, IF A MAN WHO IS NOT MARRIED TO THE MOTHER AND IS NOT THE
FATHER OF THE CHILDREN VISITS HER HOME FOR THE PURPOSE OF COHABITING
WITH HER, THE NEEDY CHILDREN MEET THE SAME FATE. 

THIRD, IF A MAN NOT MARRIED TO THE MOTHER AND NOT THE FATHER OF THE
CHILDREN COHABITS WITH HER OUTSIDE THE HOME, THEN THE NEEDY CHILDREN
ARE LIKEWISE DENIED RELIEF.  IN EACH OF THESE THREE SITUATIONS THE
NEEDY FAMILY IS WHOLLY CUT OFF FROM AFDC ASSISTANCE WITHOUT CONSIDERING
WHETHER THE MOTHER'S PARAMOUR IS IN FACT AIDING THE FAMILY, IS
FINANCIALLY ABLE TO DO SO, OR IS LEGALLY REQUIRED TO DO SO.  SINCE
THERE IS "SIN," THE PARAMOUR'S WEALTH OR INDIGENCY IS IRRELEVANT? 

IN OTHER WORDS, THE ALABAMA REGULATION IS AIMED AT PUNISHING MOTHERS
WHO HAVE NONMARITAL SEXUAL RELATIONS.  THE ECONOMIC NEED OF THE
CHILDREN, THEIR AGE, THEIR OTHER MEANS OF SUPPORT, ARE ALL IRRELEVANT. 
THE STANDARD IS THE SO-CALLED IMMORALITY OF THE MOTHER.  /5/ 

THE OTHER DAY IN A COMPARABLE SITUATION WE HELD THAT THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT BARRED DISCRIMINATION
AGAINST ILLEGITIMATE CHILDREN.  WE HELD THAT THEY CANNOT BE DENIED A
CAUSE OF ACTION BECAUSE THEY WERE CONCEIVED IN "SIN," THAT THE MAKING
OF SUCH A DISQUALIFICATION WAS AN INVIDIOUS DISCRIMINATION.  LEVY V.
LOUISIANA, 391 U.S. 68.  I WOULD THINK PRECISELY THE SAME RESULT SHOULD
BE REACHED HERE.  I WOULD SAY THAT THE IMMORALITY OF THE MOTHER HAS NO
RATIONAL CONNECTION WITH THE NEED OF HER CHILDREN UNDER ANY WELFARE
PROGRAM. 

I WOULD AFFIRM THIS JUDGMENT FOR THE REASONS MORE FULLY ELABORATED
IN THE OPINION OF THE THREE-JUDGE DISTRICT COURT.  SMITH V. KING, 277
F.SUPP.  31 38-40. 

        APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING. 

STATES WHICH, ACCORDING TO HEW, CURRENTLY HAVE "MAN-IN-THE-HOUSE"
POLICIES IN THEIR PLANS FOR THE FEDERAL-STATE PROGRAM OF AID TO
FAMILIES WITH DEPENDENT CHILDREN.  (CHART OMITTED) 

/1/  SEE THE APPENDIX TO THIS OPINION. 

/2/  SEE DISCUSSION BY THE DISTRICT COURT IN THIS CASE, SMITH V.
KING, 277 F.SUPP.  31, 36-38. 

/3/  MOREOVER, THE COURT'S DECISION BASED ON STATUTORY CONSTRUCTION
DOES NOT COMPLETELY RESOLVE THE QUESTION PRESENTED.  THE DISTRICT
COURT, HAVING FOUND A VIOLATION OF THE FOURTEENTH AMENDMENT, ISSUED AN
UNCONDITIONAL INJUNCTION.  UNDER THE COURT'S OPINION, HOWEVER, ALABAMA
IS FREE TO REVIVE ENFORCEMENT OF ITS SUBSTITUTE PARENT REGULATION AT
ANY TIME IT CHOOSES TO REJECT FEDERAL FUNDS MADE AVAILABLE UNDER THE
SOCIAL SECURITY ACT. 

/4/  WHETHER THE MOTHER ALONE COULD CONSTITUTIONALLY BE CUT OFF FROM
ASSISTANCE BECAUSE OF HER "SIN" (COMPARE GLONA V. AMERICAN INSURANCE
CO., 391 U.S. 73) IS A QUESTION NOT PRESENTED.  THE AID IS TO THE NEEDY
FAMILY, AND WITHOUT REMOVING THE CHILDREN FROM THEIR MOTHER BECAUSE OF
HER UNFITNESS-- ACTION NOT CONTEMPLATED HERE, AS FAR AS THE RECORD
INDICATES-- THERE IS NO EXISTING MEANS BY WHICH ALABAMA CAN ASSIST THE
CHILDREN WHILE ENSURING THAT THE MOTHER DOES NOT BENEFIT. 

/5/  THIS PENALIZING THE CHILDREN FOR THE SINS OF THEIR MOTHER IS
REMINISCENT OF THE ARCHAIC CORRPUTION OF THE BLOOD, A FORM OF BILL OF
ATTAINDER, WHICH I HAVE DISCUSSED RECENTLY IN A DIFFERENT CONTEXT. 
GEORGE CAMPBELL PAINTING CORP. V. REID, ANTE, P. 289 (DISSENTING
OPINION).     MARY LEE STAPP,ASSISTANT ATTORNEY GENERAL OF ALABAMA,
ARGUED THE CAUSE FOR APPELLANTS.  WITH HER ON THE BRIEFS WERE MACDONALD
GALLION, ATTORNEY GENERAL, AND CAROL F. MILLER, ASSISTANT ATTORNEY
GENERAL. 

MARTIN GARBUS ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEES. 

BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY JACK
GREENBERG, JAMES M. NABRIT II, LEROY D. CLARK, AND CHARLES STEPHEN
RALSTON FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., ET AL.,
AND BY HELEN L. BUTTENWIESER AND EPHRAIM LONDON FOR THE CHILD WELFARE
LEAGUE OF AMERICA, INC., ET AL.
..END :













AGRICULTURAL BANK V. TAX COMM'N., 392 U.S. 339 


       FIRST AGRICULTURAL NATIONAL BANK OF BERKSHIRE COUNTY V.

           STATE TAX COMMISSION. 

        APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

NO. 755.  ARGUED APRIL 22, 1968.-- DECIDED JUNE 17, 1968. 


MASSACHUSETTS SALES TAX (WHICH BY ITS TERMS MUST BE PASSED ON TO THE
PURCHASER) AND USE TAX ARE INVALID AS APPLIED TO NATIONAL BANKS SINCE
SUCH TAXES ARE NOT AMONG THE ONLY FOUR SPECIFIED METHODS OF TAXATION IN
ADDITION TO TAXES ON REAL ESTATE BY WHICH, UNDER 12 U.S.C. 548,
CONGRESS HAS PERMITTED STATES TO TAX NATIONAL BANKS.  PP. 339-348. 

-- MASS.-- , 229 N.E.2D 245, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL ISSUE RAISED BY THIS CASE CONCERNS THE EXTENT TO WHICH
STATES MAY TAX A NATIONAL BANK.  THE SUPREME JUDICIAL COURT FOR THE
COMMONWEALTH OF MASSACHUSETTS HELD THAT APPELLANT, FIRST AGRICULTURAL
NATIONAL BANK OF BERKSHIRE COUNTY, WAS SUBJECT TO MASSACHUSETTS'
RECENTLY ENACTED SALES AND USE TAXES /1/  ON PURCHASES FOR ITS OWN USE
OF TANGIBLE PERSONAL PROPERTY.  FOR REASONS TO BE STATED WE BELIEVE
THIS DECISION WAS ERRONEOUS, AND WE REVERSE. 

AS LONG AGO AS 1819, IN THE HISTORIC CASE OF M'CULLOCH V. MARYLAND,
4 WHEAT.  316, THIS COURT DECLARED UNCONSTITUTIONAL A STATE TAX ON THE
BANK OF THE UNITED STATES SINCE, ACCORDING TO CHIEF JUSTICE MARSHALL,
THIS AMOUNTED TO A "TAX ON THE OPERATION OF AN INSTRUMENT EMPLOYED BY
THE GOVERNMENT OF THE UNION TO CARRY ITS POWERS INTO EXECUTION."  4
WHEAT.,AT 436-437.  A LONG LINE OF SUBSEQUENT DECISIONS BY THIS COURT
HAS FIRMLY ESTABLISHED THE PROPOSITION THAT THE STATES ARE WITHOUT
POWER, UNLESS AUTHORIZED BY CONGRESS, TO TAX FEDERALLY CREATED, OR, AS
THEY ARE PRESENTLY CALLED, NATIONAL, BANKS.  OWENSBORO NAT. BANK V.
OWENSBORO, 173 U.S. 664, 668; DES MOINES NAT. BANK V. FAIRWEATHER 263
U.S. 103, 106; FIRST NAT. BANK V. HARTFORD, 273 U.S. 548, 550; IOWA-DES
MOINES NAT. BANK V. BENNETT, 284 U.S. 239, 244.  AS RECENTLY AS 1966,
MR. JUSTICE FORTAS, SPEAKING FOR A UNANIMOUS COURT, THOUGHT THIS
ANCIENT PRINCIPLE SO WELL ESTABLISHED THAT HE USED NATIONAL BANKS AS AN
EXAMPLE IN HOLDING THE AMERICAN RED CROSS IMMUNE FROM STATE TAXATION: 

"IN THOSE RESPECTS IN WHICH THE RED CROSS DIFFERS FROM THE USUAL
GOVERNMENT AGENCY-- E.G., IN THAT ITS EMPLOYEES ARE NOT EMPLOYEES OF
THE UNITED STATES, AND THAT GOVERNMENT OFFICIALS DO NOT DIRECT ITS
EVERYDAY AFFAIRS-- THE RED CROSS IS LIKE OTHER INSTITUTIONS-- E.G.,
NATIONAL BANKS-- WHOSE STATUS AS TAX-IMMUNE INSTRUMENTALITIES OF THE
UNITED STATES IS BEYOND DISPUTE."  DEPARTMENT OF EMPLOYMENT V. UNITED
STATES, 385 U.S. 355, 360. 

THE DECISION BELOW RECOGNIZED THE STRONG PRECEDENTS AGAINST
TAXATION, BUT THE MASSACHUSETTS SUPREME JUDICIAL COURT WAS OF THE
OPINION THAT THE STATUS OF NATIONAL BANKS HAS BEEN SO CHANGED BY THE
ESTABLISHMENT OF THE FEDERAL RESERVE SYSTEM /2/  THAT THEY SHOULD NO
LONGER BE CONSIDERED NONTAXABLE BY THE STATES AS INSTRUMENTALITIES OF
THE UNITED STATES.  ESSENTIALLY THE REASONING OF THE SUPREME JUDICIAL
COURT IS THAT UNDER PRESENT-DAY CONDITIONS AND REGULATIONS THERE IS NO
SUBSTANTIAL DIFFERENCE BETWEEN NATIONAL BANKS AND STATE BANKS; AND THE
IMPLICATION OF THIS IS, OF COURSE, THAT NATIONAL BANKS LACK ANY UNIQUE
QUALITY GIVING THEM THE CHARACTER OF A FEDERAL INSTRUMENTALITY. 
BECAUSE OF PERTINENT CONGRESSIONAL LEGISLATION IN THE BANKING FIELD, WE
FIND IT UNNECESSARY TO REACH THE CONSTITUTIONAL QUESTION OF WHETHER
TODAY NATIONAL BANKS SHOULD BE CONSIDERED NONTAXABLE AS FEDERAL
INSTRUMENTALITIES. 

AS WILL BE SEEN, CONGRESS HAS BEEN FAR FROM RELUCTANT TO PASS
LEGISLATION IN THE BANKING FIELD.  THERE ARE IMPORTANT COMMITTEES ON
BANKING AND CURRENCY IN BOTH HOUSES WHICH CONTINUALLY MONITOR BANKING
AFFAIRS AND PROPOSE NEW LEGISLATION WHEN CHANGES ARE FELT TO BE
NEEDED.  FOR PURPOSES OF THIS CASETHE MOST IMPORTANT PIECE OF BANKING
LEGISLATION IS 12 U.S.C. 548 /3/  WHICH ORIGINATED AS PART OF THE ACT
OF JUNE 3, 1864, C. 106, SEC. 41, 13 STAT. 111.  THIS SECTION ALLOWS
STATE TAXATION OF NATIONAL BANKS IN ANY ONE OF FOUR SPECIFIED WAYS IN
ADDITION TO TAXES ON THEIR REAL ESTATE.  BEFORE THIS LEGISLATION WAS
ORIGINALLY ENACTED IN 1864, THERE WAS SHARP CONTROVERSY IN THE CONGRESS
OVER THE EXTENT TO WHICH THE STATES SHOULD BE ALLOWED TO TAX NATIONAL
BANKS.  A VOCAL OPPONENT TO ANY STATE TAXATION OF NATIONAL BANKS WAS
THE POWERFUL SENATOR SUMNER OF MASSACHUSETTS, WHO SAID: 

     "IF YOU ALLOW THE STATE TO INTERFERE WITH THE PROPOSED SYSTEM

  (OF NATIONAL BANKS) IN ANY WAY, MAY THEY NOT EMBARRASS IT?  WHERE

  SHALL THEY STOP?  WHERE WILL YOU RUN A LINE? 

        .          .    .          . 

     "NOW, SIR, EVERY CONSIDERATION, EVERY ARGUMENT WHICH GOES TO

  SUSTAIN THIS GREAT JUDGMENT (M'CULLOCH V. MARYLAND) MAY BE

  EMPLOYED AGAINST THE PROPOSED CONCESSION TO THE STATES OF THE

  POWER TO TAX THIS NATIONAL INSTITUTION IN ANY PARTICULAR, WHETHER

  DIRECTLY OR INDIRECTLY."  CONG. GLOBE, 38TH CONG., 1ST SESS.,

  1893-1894 (1864). 

ON THE OTHER SIDE, PROPOSED AMENDMENTS EXPRESSLY PERMITTING MUCH
BROADER STATE AND LOCAL TAXATION OF NATIONAL BANKS WERE INTRODUCED,
DEBATED, AND REJECTED BY THE CONGRESS.  AMONG THESE WAS AN AMENDMENT
INTRODUCED IN THE HOUSE WHICH WOULD HAVE MADE NATIONAL BANKS SUBJECT,
WITHOUT EXCEPTION, TO ALL STATE AND LOCAL GENERAL TAXES ON PERSONAL AS
WELL AS REAL PROPERTY: 

     "AND THE SAID ASSOCIATIONS OR CORPORATIONS SHALL SEVERALLY BE

  SUBJECT TO STATE AND MUNICIPAL TAXATION UPON THEIR REAL AND

  PERSONAL ESTATE, THE SAME AS PERSONS RESIDING AT THEIR RESPECTIVE

  PLACES OF BUSINESS ARE SUBJECT TO SUCH TAXATION BY STATE LAWS." 

  CONG. GLOBE, 38TH CONG., 1ST SESS., 1392 (1864). 

THE RESULT OF THIS CONFLICT WAS THAT THE LEGISLATION, WHEN FINALLY
PASSED, WAS A COMPROMISE WHICH PERMITTED STATE TAXATION OF NATIONAL
BANKS IN CERTAIN WAYS, BUT PROHIBITED ALL OTHER FORMS OF STATE
TAXATION.  SENATOR FESSENDEN, CHAIRMAN OF THE FINANCE COMMITTEE,
CLEARLY DEFINED THE COMPROMISE THAT WAS BEING ENACTED: 

     "IF THE SENATOR READS THIS BILL HE WILL PERCEIVE THAT ALL THE

  POWER OF TAXATION UPON THE OPERATIONS OF THE BANK ITSELF, ALL

  UPON THE CIRCULATION, ALL UPON THE DEPOSITS, ALL UPON EVERYTHING

  WHICH CAN PROPERLY BE MADE BY A TAX IS RESERVED TO THE GENERAL

  GOVERNMENT; THAT THE STATES CANNOT TOUCH IT IN ANY POSSIBLE FORM;

  THAT THEY ARE LIMITED AND CONTROLLED; THE SIMPLE RIGHT IS GIVEN

  THEM TO SAY THAT THE PROPERTY WHICH THEIR OWN CITIZENS HAVE

  INVESTED IN IT SHALL CONTRIBUTE TO STATE TAXATION PRECISELY AS

  OTHER PROPERTY."  CONG. GLOBE, 38TH CONG., 1ST SESS., 1895

  (1864). 

IT SEEMS CLEAR TO US FROM THE LEGISLATIVE HISTORY THAT 12 U.S.C. 548
WAS INTENDED TO PRESCRIBE THE ONLY WAYS IN WHICH THE STATES CAN TAX
NATIONAL BANKS.  AND THIS IS CERTAINLY NOT A NOVEL INTERPRETATION OF
THE SECTION, AS SHOWN BY PREVIOUS DECISIONS OF THIS COURT.  AS EARLY AS
1899 THE COURT DECLARED: 

     "THIS SECTION (R.S. 5219, 12 U.S.C. 548), THEN, OF THE REVISED

STATUTES IS THE MEASURE OF THE POWER OF A STATE TO TAX NATIONAL

  BANKS, THEIR PROPERTY OR THEIR FRANCHISES.  BY ITS UNAMBIGUOUS

  PROVISIONS THE POWER IS CONFINED TO A TAXATION OF THE SHARES OF

  STOCK IN THE NAMES OF THE SHAREHOLDERS AND TO AN ASSESSMENT OF

  THE REAL ESTATE OF THE BANK.  ANY STATE TAX THEREFORE WHICH IS IN

  EXCESS OF AND NOT IN CONFORMITY TO THESE REQUIREMENTS IS VOID." 

  OWENSBORO NAT. BANK V. OWENSBORO, 173 U.S. 664, 669. 

A MORE COMPLETE EXPLANATION OF SEC. 548 AND ITS MEANING APPEARS IN THIS
COURT'S OPINION IN BANK OF CALIFORNIA V. RICHARDSON, 248 U.S. 476,
WHERE IT WAS SAID: 

     "THERE IS ALSO NO DOUBT FROM THE SECTION (R.S. 5219, 12 U.S.C.

  548) THAT IT WAS INTENDED TO COMPREHENSIVELY CONTROL THE SUBJECT

  WITH WHICH IT DEALT AND THUS TO FURNISH THE EXCLUSIVE RULE

  GOVERNING STATE TAXATION AS TO THE FEDERAL AGENCIES CREATED AS

  PROVIDED IN THE SECTION . . . 

     "TWO PROVISIONS IN APPARENT CONFLICT WERE ADOPTED.  FIRST, THE

  ABSOLUTE EXCLUSION OF POWER IN THE STATES TO TAX THE BANKS, THE

  NATIONAL AGENCIES CREATED, SO AS TO PREVENT ALL INTERFERENCE WITH

  THEIR OPERATIONS, THE INTEGRITY OF THEIR ASSETS, OR THE

  ADMINISTRATIVE GOVERNMENTAL CONTROL OVER THEIR AFFAIRS.  SECOND,

  PRESERVATION OF THE TAXING POWER OF THE SEVERAL STATES SO AS TO

  PREVENT ANY IMPAIRMENT THEREOF FROM ARISING FROM THE EXISTENCE OF

  THE NATIONAL AGENCIES CREATED, TO THE END THAT THE FINANCIAL

  RESOURCES ENGAGED IN THEIR DEVELOPMENT MIGHT NOT BE WITHDRAWN

  FROM THE REACH OF STATE TAXATION . . . 

     "THE FIRST AIM WAS ATTAINED BY THE NON-RECOGNITION OF ANY
POWER

  WHATEVER IN THE STATES TO TAX THE FEDERAL AGENCIES, THE BANKS,

  EXCEPT AS TO REAL ESTATE SPECIALLY PROVIDED FOR, AND, THEREFORE,

  THE EXCLUSION OF ALL SUCH POWERS.  THE SECOND WAS REACHED BY A

  RECOGNITION OF THE FACT THAT, CONSIDERED FROM THE POINT OF VIEW

  OF ULTIMATE AND BENEFICIAL INTEREST, EVERY AVAILABLE ASSET

  POSSESSED OR ENJOYED BY THE BANKS WOULD BE OWNED BY THEIR

  STOCKHOLDERS AND WOULD BE, THEREFORE, REACHED BY TAXATION OF THE

  STOCKHOLDERS AS SUCH . . . ."  248 U.S.,AT 483. 

FINALLY, SO THERE CAN BE NO DOUBT, CONSIDER THESE WORDS OF THE COURT IN
DES MOINES BANK V. FAIRWEATHER, 263 U.S. 103: 

     "THIS SECTION (R.S. SEC. 5219, 12 U.S.C. 548) SHOWS, AND THE

DECISIONS UNDER IT HOLD, THAT WHAT CONGRESS INTENDED WAS THAT

  NATIONAL BANKS AND THEIR PROPERTY SHOULD BE FREE FROM TAXATION

  UNDER STATE AUTHORITY, OTHER THAN TAXES ON THEIR REAL PROPERTY

  AND ON SHARES HELD BY THEM IN OTHER NATIONAL BANKS; AND THAT ALL

  SHARES IN SUCH BANKS SHOULD BE TAXABLE TO THEIR OWNERS, THE

  STOCKHOLDERS, MUCH AS OTHER PERSONAL PROPERTY IS TAXABLE . . .

  ."  263 U.S.,AT 107. 

THUS, AT LEAST SINCE THE OWENSBORO DECISION, SUPRA, IN 1899, IT HAS
BEEN ABUNDANTLY CLEAR THAT 12 U.S.C. 548 MARKS THE OUTER LIMIT WITHIN
WHICH STATES CAN TAX NATIONAL BANKS.  NOW THIS COURT IS ASKED TO CHANGE
WHAT LEGISLATIVE HISTORY AND PRIOR DECISIONS HAVE ESTABLISHED IS THE
PRECISE MEANING OF AN ACT OF CONGRESS.  THIS WE CANNOT DO.  FOR, AS WE
POINTED OUT ABOVE, THE BANKING FIELD HAS TRADITIONALLY BEEN AN AREA OF
PARTICULAR CONGRESSIONAL CONCERN MARKED BY LEGISLATION RESPONSIVE TO
NEW PROBLEMS.  THIS CAN BE ILLUSTRATED BY THE HISTORY OF SEC. 548
ALONE.  IT WAS ORIGINALLY PASSED IN 1864 BECAUSE THE 1863 CURRENCY ACT
/4/  CONTAINED NO PROVISION FOR STATE TAXATION OF NATIONAL BANKS OR
THEIR SHARES.  IN 1868 A TECHNICAL AMENDMENT WAS MADE TO THE SECTION. 
/5/  THEN IN 1923 A SUBSTANTIVE AMENDMENT WAS MADE WHICH, AMONG OTHER
THINGS, AUTHORIZED THE STATE TAXATION OF NATIONAL BANK INCOME AND
DIVIDENDS.  /6/  ANOTHER IMPORTANT PART OF THIS AMENDMENT WAS THE
DECLARATION THAT "BONDS, NOTES, OR OTHER EVIDENCES OF INDEBTEDNESS" IN
THE HANDS OF INDIVIDUAL CITIZENS WERE NOT TO BE CONSIDERED "MONEYED
CAPITAL . . . COMING INTO COMPETITION WITH THE BUSINESS OF NATIONAL
BANKS."  JUST TWO YEARS BEFORE, THIS COURT HAD RULED IN MERCHANTS' NAT.
BANK OF RICHMOND V. RICHMOND, 256 U.S. 635 (1921), THAT SUCH BONDS AND
NOTES WERE MONEYED CAPITAL IN COMPETITION WITH NATIONAL BANKS AND THUS
COVERED BY SEC. 548.  SENATOR PEPPER, WHO SPOKE FOR THE AMENDMENT, MADE
CLEAR THAT IT WAS OFFERED AS A RESPONSE TO THIS COURT'S DECISION WHICH
HAD PLACED AN ERRONEOUS INTERPRETATION ON THE SECTION.  /7/  THEN AGAIN
IN 1926, SEC. 548 WAS AMENDED TO PERMIT STATES TO LEVY FRANCHISE AND
EXCISE TAXES ON NATIONAL BANKS MEASURED BY THE ENTIRE INCOME (INCLUDING
INCOME FROM TAX-EXEMPT SECURITIES) OF THE BANKS.  /8/  FINALLY, IN
1950, A BILL WAS SENT TO THE SENATE COMMITTEE ON BANKING AND CURRENCY
WHICH EXPRESSLY PERMITTED THE LEVYING OF STATE SALES AND USE TAXES ON
NATIONAL BANKS, BUT CONGRESS DID NOT PASS IT.  /9/ 

BECAUSE OF SEC. 548 AND ITS LEGISLATIVE HISTORY, WE ARE CONVINCED
THAT IF A CHANGE IS TO BE MADE IN STATE TAXATION OF NATIONAL BANKS, IT
MUST COME FROM THE CONGRESS, WHICH HAS ESTABLISHED THE PRESENT LIMITS. 

WITH THIS PRIMARY QUESTION OUT OF THE WAY, THERE IS ONE ADDITIONAL
ISSUE WHICH MUST BE RESOLVED.  THE COURT BELOW HELD, CONTRARY TO
APPELLANT'S CONTENTION, THAT THE MASSACHUSETTS SALES TAX IS NOT IMPOSED
UPON THE BANK AS A PURCHASER, BUT IS A TAX UPON VENDORS WHO SELL
TANGIBLE PERSONAL PROPERTY TO THE BANK.  OF COURSE IF THIS IS TRUE, THE
BANK CANNOT OBJECT IF A PARTICULAR VENDOR DECIDES TO PASS THE BURDEN OF
THE TAX ON TO IT THROUGH AN INCRASED PRICE.  BUT IF THIS IS NOT TRUE,
AND IF THE TAX IS ON THE BANK AS A PURCHASER, THEN, BECAUSE IT IS A
NATIONAL BANK, APPELLANT IS EXEMPT UNDER 12 U.S.C. 548.  BECAUSE THE
QUESTION HERE IS WHETHER THE TAX AFFECTS FEDERAL IMMUNITY, IT IS CLEAR
THAT FOR THIS LIMITED PURPOSE WE ARE NOT BOUND BY THE STATE COURT'S
CHARACTERIZATION OF THE TAX.  SEE SOCIETY FOR SAVINGS V. BOWERS, 349
U.S. 143, 151, AND THE CASES CITED THEREIN.  AND ESSENTIALLY THE
QUESTION FOR US IS:  ON WHOM DOES THE INCIDENCE OF THE TAX FALL?  SEE
KERN-LIMERICK, INC. V. SCURLOCK, 347 U.S. 110, 121-122.  ALSO SEE
CARSON V. ROANE-ANDERSON CO., 342 U.S. 232. 

IT WOULD APPEAR TO BE INDISPUTABLE THAT A SALES TAX WHICH BY ITS
TERMS MUST BE PASSED ON TO THE PURCHASER IMPOSES THE LEGAL INCIDENCE OF
THE TAX UPON THE PURCHASER.  SEE FEDERAL LAND BANK V. BISMARCK LUMBER
CO., 314 U.S.95, 99.  SUBSECTION 3 OF THE MASSACHUSETTS SALES TAX
PROVIDES: 

  "REIMBURSEMENT FOR THE TAX HEREBY IMPOSED SHALL BE PAID BY THE

  PURCHASER TO THE VENDOR AND EACH VENDOR IN THIS COMMONWEALTH

  SHALL ADD TO THE SALES PRICE AND SHALL COLLECT FROM THE PURCHASER

  THE FULL AMOUNT OF THE TAX IMPOSED BY THIS SECTION, OR AN AMOUNT

  EQUAL AS NEARLY AS POSSIBLE OR PRACTICABLE TO THE AVERAGE

  EQUIVALENT THEREOF; AND SUCH TAX SHALL BE A DEBT FROM THE

  PURCHASER TO THE VENDOR, WHEN SO ADDED TO THE SALES PRICE, AND

  SHALL BE RECOVERABLE AT LAW IN THE SAME MANNER AS OTHER DEBTS." 

  ACTS AND RESOLVES, 1966, C. 14, SEC. 1, SUBSEC.  3. 

THIS SUBSECTION READS TO US AS A CLEAR REQUIREMENT THAT THE SALES TAX
BE PASSED ON TO THE PURCHASER.  AND THIS INTERPRETATION IS REINFORCED
BY SUBSECTION 23 WHICH PROHIBITS AS UNLAWFUL ADVERTISING THE HOLDING
OUT BY ANY VENDOR THAT HE WILL ASSUME OR ABSORB THE TAX ON ANY SALE
THAT HE MAY MAKE.  WE CANNOT ACCEPT THE REASONING OF THE COURT BELOW
THAT SIMPLY BECAUSE THERE IS NO SANCTION AGAINST A VENDOR WHO REFUSES
TO PASS ON THE TAX (ASSUMING THIS IS TRUE), THIS MEANS THE TAX IS ON
THE VENDOR.  THERE CAN BE NO DOUBT FROM THE CLEAR WORDING OF THE
STATUTE THAT THE MASSACHUSETTS LEGISLATURE INTENDED THAT THIS SALES TAX
BE PASSED ON TO THE PURCHASER.  FOR OUR PURPOSES, AT LEAST, THAT INTENT
IS CONTROLLING.  AND IT SEEMS CLEAR TO US THAT THE FORCE OF THE LAW,
ESPECIALLY THE LANGUAGE IN SUBSECTION 3, IS SUCH THAT, REGARDLESS OF
SANCTIONS, BUSINESSMEN WILL ATTEMPT, IN THEIR EVERYDAY COMMERCIAL
AFFAIRS, TO CONFORM TO ITS PROVISIONS AS WRITTEN.     FOR THESE REASONS
WE REVERSE AND HOLD THAT APPELLANT IS IMMUNE FROM BOTH THE
MASSACHUSETTS USE AND SALES TAXES. 

              REVERSED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

/1/  ACTS AND RESOLVES, 1966, C. 14, SECS. 1 AND 2. 

/2/  THE FEDERAL RESERVE ACT OF DECEMBER 23, 1913, C.6, 38 STAT.
251, 12 U.S.C. 221 ET SEQ. 

/3/  THIS SECTION PROVIDES IN PERTINENT PART: 

"THE LEGISLATURE OF EACH STATE MAY DETERMINE AND DIRECT, SUBJECT TO
THE PROVISIONS OF THIS SECTION, THE MANNER AND PLACE OF TAXING ALL THE
SHARES OF NATIONAL BANKING ASSOCIATIONS LOCATED WITHIN ITS LIMITS.  THE
SEVERAL STATES MAY (1) TAX SAID SHARES, OR (2) INCLUDE DIVIDENDS
DERIVED THEREFROM IN THE TAXABLE INCOME OF AN OWNER OR HOLDER THEREOF,
OR (3) TAX SUCH ASSOCIATIONS ON THEIR NET INCOME, OR (4) ACCORDING TO
OR MEASURED BY THEIR NET INCOME . . . . 

"1.  (A) THE IMPOSITION BY ANY STATE OF ANY ONE OF THE ABOVE FOUR
FORMS OF TAXATION SHALL BE IN LIEU OF THE OTHERS . . . .

        .      .          .          . 

"3.  NOTHING HEREIN SHALL BE CONSTRUED TO EXEMPT THE REAL PROPERTY
OF ASSOCIATIONS FROM TAXATION IN ANY STATE OR IN ANY SUBDIVISION
THEREOF, TO THE SAME EXTENT, ACCORDING TO ITS VALUE, AS OTHER REAL
PROPERTY IS TAXED." 

/4/  ACT OF FEBRUARY 25, 1863, C. 58, 12 STAT. 665. 

/5/  ACT OF FEBRUARY 10, 1868, C. 7, 15 STAT. 34. 

/6/  ACT OF MARCH 4, 1923, C. 267, 42 STAT. 1499. 

/7/  64 CONG.REC.  1454 (1923). 

/8/  ACT OF MARCH 25, 1926, C. 88, 44 STAT. 223. 

/9/  SEE HEARING ON S. 2547 BEFORE THE SUBCOMMITTEE ON FEDERAL
RESERVE MATTERS OF THE SENATE COMMITTEE ON BANKING AND CURRENCY, 81ST
CONG., 2D SESS., 9 (1950). 

MR. JUSTICE MARSAHLL, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

I WOULD MAKE CLEAR THAT THE CONSTITUTION OF ITS OWN FORCE DOES NOT
PROHIBIT MASSACHUSETTS FROM APPLYING ITS UNIFORM SALES AND USE TAXES
TO, AMONG OTHER THINGS, APPELLANT'S WASTEBASKETS.  /1/  IT SEEMS TO ME
NECESSARY TO DECIDE THAT CONSTITUTIONAL QUESTION IN ORDER PROPERLY TO
INTERPRET 12 U.S.C. 548, UPON WHICH THE COURT BASES ITS DECISION. 
MOREOVER, THE REFUSAL TO DECIDE THE ISSUE GIVES FURTHER LIFE TO A
LARGELY OUTMODED DOCTRINE. 

MR. JUSTICE BRANDEIS RIGHTLY CAUTIONED THAT "(IN CASES INVOLVING
CONSTITUTIONAL ISSUES . . . THIS COURT MUST, IN ORDER TO REACH SOUND
CONCLUSIONS, FEEL FREE TO BRING ITS OPINIONS INTO AGREEMENT WITH
EXPERIENCE AND WITH FACTS NEWLY ASCERTAINED, SO THAT ITS JUDICIAL
AUTHORITY MAY . . . 'DEPEND ALTOGETHER ON THE FORCE OF THE REASONING BY
WHICH IT IS SUPPORTED.'"  /2/  I THINK THAT IN LIGHT OF THE PRESENT
FUNCTIONS AND ROLE OF NATIONAL BANKS THEY SHOULD NOT IN THIS DAY AND
AGE BE CONSIDERED CONSTITUTIONALLY IMMUNE FROM NONDISCRIMINATORY STATE
TAXATION, AND THAT SEC. 548 SHOULD NOT BE CONSTRUED AS GIVING THEM A
STATUTORY IMMUNITY FROM THE TAXES HERE INVOLVED. 

     I. 

A. THE STARTING POINT OF THE CONSTITUTIONAL INQUIRY IS, OF COURSE,
M'CULLOCH V. MARYLAND, 4 WHEAT.  316 (1819).  THAT CASE INVOLVED A
STATE STATUTE APPLICABLE TO ANY BANK ESTABLISHED IN MARYLAND "WITHOUT
AUTHORITY FROM THE STATE," I.E., THE SECOND BANK OF THE UNITED STATES,
CHARTERED BY CONGRESS IN 1816.  IT PROHIBITED THE CIRCULATION OF NOTES
(CURRENCY) BY SUCH A BANK EXCEPT ON PAYMENT OF A 2% STAMP TAX, OR,
ALTERNATIVELY, UPON THE PAYMENT ANNUALLY TO THE STATE OF $15,000. 
SUBSTANTIAL MONETARY PENALTIES WERE PROVIDED FOR VIOLATIONS OF THE
STATUTE, FOR WHICH THE STATE HAD SUED CASHIER M'CULLOCH.  IN A
CELEBRATED OPINION CHIEF JUSTICE MARSHALL, A PRINCIPAL ARCHITECT OF OUR
FEDERALISM, STRUCK DOWN THE MARYLAND STATUTE. 

IN OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738 (1824),
M'CULLOCH WAS APPLIED TO STRIKE DOWN AN OHIO STATUTE THAT ATTEMPTED TO
EXTRACT AN ANNUAL TAX OF $50,000 FROM EACH BRANCH OF A BUSINESS
OPERATING IN THE STATE WITHOUT ITS AUTHORITY.  THE STATUTES FOUND
UNCONSTITUTIONAL IN BOTH OF THOSE CASES WERE PATENTLY DISCRIMINATORY
AGAINST THE SECOND BANK OF THE UNITED STATES (THE OHIO STATUTE
SPECIFICALLY MENTIONED IT), FOR THE TAXES DID NOT APPLY TO STATE
CHARTERED BANKS.  CHIEF JUSTICE MARSHALL, HOWEVER, DID NOT LIMIT HIS
OPINIONS IN THE TWO CASES TO DISCRIMINATORY TAXATION, AND THEY WERE
APPLIED BY THE COURT IN OWENSBORO NAT. BANK V. OWENSBORO, 173 U.S. 664
(1899), WITH LITTLE INDEPENDENT ANALYSIS TO HOLD THAT KENTUCKY COULD
NOT COLLECT A NONDISCRIMINATORY FRANCHISE TAX FROM A NATIONAL BANK. 
THERE WAS NO DISCUSSION OF THE POSSIBLE DIFFERENCES BETWEEN FEDERAL
FUNCTIONS PERFORMED BY THE KIND OF NATIONAL BANK INVOLVED THERE, WHICH
EXISTED BY VIRTUE OF LEGISLATION ENACTED IN 1863 AND 1864, AND THE
QUITE DISTINCT FUNCTIONS PERFORMED BY THE SECOND BANK OF THE UNITED
STATES INVOLVED IN M'CULLOCH AND OSBORN. 

VIRTUALLY ALL OF THE LATER CASES IN WHICH NATIONAL BANKS HAVE BEEN
HELD TO BE FEDERAL INSTRUMENTALITIES IMMUNE FROM STATE TAXATION DEPEND
UPON THESE THREE CASES.  ONE COULD, AND PERHAPS SHOULD, READ M'CULLOCH
AND OSBORN SIMPLY FOR THE PRINCIPLE THAT THE CONSTITUTION PROHIBITS A
STATE FROM TAXING DISCRIMINATORILY A FEDERALLY ESTABLISHED
INSTRUMENTALITY.  ON THAT VIEW, CHIEF JUSTICE MARSHALL'S STATEMENT THAT
"THE POWER TO TAX INVOLVES THE POWER TO DESTROY," M'CULLOCH V.
MARYLAND, SUPRA, AT 431, DID NOT RELATE TO A PRINCIPLE ENTIRELY
NECESSARY TO THE DECISION.  AS MR. JUSTICE FRANKFURTER POINTED OUT IN
REFRENCE TO WHAT HE CALLED THAT "SEDUCTIVE CHICHE": 

"THE WEB OF UNREALITY SPUN FROM MARSHALL'S FAMOUS DICTUM WAS BRUSHED
AWAY BY ONE STROKE OF MR. JUSTICE HOLME'S PEN:  'THE POWER TO TAX IS
NOT THE POWER TO DESTROY WHILE THIS COURT SITS.'"  /3/ 

ABSENT AN EXAMINATION OF THE DIFFERENCES BETWEEN THE BANK INVOLVED
IN OWENSBORO AND THE SECOND BANK OF THE UNITED STATES INVOLVED IN
M'CULLOCH AND OSBORN, THE OWENSBORO DECISION MIGHT BE JUSTIFIED UPON
EITHER OF THE FOLLOWING GROUNDS:  ITS ALTERNATIVE HOLDING THAT THE
STATUTE THAT IS NOW SEC. 548 CONSTITUTED CONGRESSIONAL DELINEATION OF
THE PERMISSIBLE SCOPE OF THE POWER OF THE STATE TO TAX A NATIONAL BANK,
OR PERHAPS THAT THE PARTICULAR FRANCHISE TAX WAS INVALID AS APPLIED
BECAUSE IT WAS BASED UPON A VALUATION THAT INCLUDED THE NATIONAL BANK'S
REQUIRED INVESTMENT IN NONTAXABLE BONDS OF THE UNITED STATES.  /4/  OR
ONE MIGHT VIEW OWENSBORO, IN HOLDING A NONDISCRIMINATORY TAX INVALID,
AS SIMPLY INCORRECT. 

SUCH A LIMITED VIEW OF THOSE HOARY CASES WOULD, OF COURSE, REQUIRE A
RE-EVALUATION OF THE VALIDITY OF THE DOCTRINE OF INTERGOVERNMENTAL TAX
IMMUNITIES-- A DOCTRINE WHICH DOES NOT REST UPON ANY SPECIFIC
PROVISIONS OF THE CONSTITUTION, BUT RATHER UPON THIS COURT'S CONCEPTS
OF FEDERALISM.  SEE M'CULLOCH V. MARYLAND, SUPRA, AT 426; GRAVES V. NEW
YORK ET REL. O'KEEFE, 306 U.S. 466, 487-492 (1939) (FRANKFURTER, J.,
CONCURRING); T. POWELL, VAGARIES AND VARIETIES IN CONSTITUTIONAL
INTERPRETATION, C. IV (1956).  I HAVE NO DOUBT THAT CONGRESS COULD
PROVIDE (AND HAS PROVIDED, SEE INFRA, AT 362) STATUTORY IMMUNITY FROM
STATE TAXATION FOR THE FEDERAL INSTRUMENTALITIES IT MAY ESTABLISH. 
SEE, E.G., UNITED STATES V. CITY OF DETROIT, 355 U.S. 466, 474 (1958);
MARICOPA COUNTY V. VALLEY NAT. BANK, 318 U.S. 357, 361 (1943); RAILROAD
CO. V. PENISTON, 18 WALL.  5, 37-38 (1873) (CONCURRING IN JUDGMENT). 
GIVEN THAT CONGRESSIONAL POWER, THERE IS LITTLE REASON FOR THIS COURT
TO CLING TO THE VIEW THAT THE CONSTITUTION ITSELF MAKES FEDERAL
INSTRUMENTALITIES IMMUNE FROM STATE TAXATION IN THE ABSENCE OF
AUTHORIZING LEGISLATION.  THE DISPARATE KINDS OF INSTRUMENTALITIES AND
FORMS OF STATE TAXATION CREATE DIFFICULTIES FOR AD HOC RESOLUTION OF
THE IMMUNITY ISSUE BY THIS COURT BASED ONLY UPON ABSTRACT CONCEPTS OF
FEDERALISM.  SEE GENERALLY POWELL, WANING OF INTERGOVERNMENTAL TAX
IMMUNITIES, 58 HAR.L.REV.  633 (1945); POWELL, REMNANT OF
INTERGOVERNMENTAL TAX IMMUNITIES, 58 HARV.L.REV.  757 (1945).  AS THE
COURT HAS SOMETIMES REALIZED: 

"WISE AND FLEXIBLE ADJUSTMENT OF INTERGOVERNMENTAL TAX IMMUNITY
CALLS FOR POLITICAL AND ECONOMIC CONSIDERATIONS OF THE GREATEST
DIFFICULTY AND DELICACY.  SUCH COMPLEX PROBLEMS ARE ONES WHICH CONGRESS
IS BEST QUALIFIED TO RESOLVE."  UNITED STATES V. CITY OF DETROIT, 355
U.S.,AT 474. 

B. THE COURT HAS NOVER INDICATED ANY GREAT DESIRE TO RECONSIDER IN
TOTO THE DOCTRINE OF THE CONSTITUTIONAL IMMUNITY OF FEDERAL
INSTRUMENTALITIES FROM STATE TAXATION.  THE COURT HAS, HOWEVER, NOTED
THE TREND IN ITS DECISIONS TOWARD RESTRICTING "THE SCOPE OF IMMUNITY
(FROM TAXES) OF PRIVATE PERSONS SEEKING TO CLOTHE THEMSELVES WITH
GOVERNMENTAL CHARACTER," OKLAHOMA TAX COMM'N V. TEXAS CO., 336 U.S.
342, 352 (1949).  THE WISDOM OF THAT TREND COUNSELS, I THINK, A
REJECTION OF THE CONSTITUTIONAL ARGUMENT IN THIS CASE. 

AS THE COURT SAID LAST TERM, "THERE IS NO SIMPLE TEST FOR
ASCERTAINING WHETHER AN INSTITUTION IS SO CLOSELY RELATED TO
GOVERNMENTAL ACTIVITY AS TO BECOME A TAX-IMMUNE INSTRUMENTALITY,"
DEPARTMENT OF EMPLOYMENT V. UNITED STATES, 385 U.S. 355, 358-359 (1966)
(HOLDING RED CROSS IMMUNE).  VARIOUS FORMULATIONS OF THE CONTROLLING
TEST HAVE BEEN USED TO DETERMINE WHETHER INSTITUTIONS OR INDIVIDUALS
ARE IMMUNE: WETHER THEY "HAVE BEEN SO INCORPORATED INTO THE GOVERNMENT
STRUCTURE AS TO BECOME INSTRUMENTALITIES OF THE UNITED STATES AND THUS
ENJOY GOVERNMENTAL IMMUNITY," UNITED STATES V. BOYD, 378 U.S. 39, 48
(1964); WHETHER THEY "ARE ARMS OF THE GOVERNMENT DEEMED BY IT ESSENTIAL
FOR GOVERNMENT DEPARTMENT AND) . . . SHARE IN FULFILLING THE DUTIES
ENTRUSTED TO IT," STANDARD OIL CO. V. JOHNSON, 316 U.S. 481, 485 (1942)
(ARMY POST-EXCHANGES IMMUNE); WHETHER THEY HAVE BEEN SO "ASSIMILATED BY
THE GOVERNMENT AS TO BECOME ONE OF ITS CONSTITUENT PARTS," UNITED
STATES V. TOWNSHIP OF MUSKEGON, 355 U.S. 484, 486 (1958); AND WHETHER
THE INSTITUTION IS REGARDED "VIRTUALLY AS AN ARM OF THE GOVERNMENT,"
DEPARTMENT OF EMPLOYMENT V. UNITED STATES, SUPRA, AT 359-360. 

UNDER THOSE GENERAL RUBRICS, THE COURT HAS LOOKED TO VARIOUS
SPECIFIC FACTORS AND CHARACTERISTICS TO DETERMINE THE STATUS OF THE
SPECIFIC INSTITUTION:  WHETHER IT IS ORGANIZED FOR PRIVATE PROFIT, AND
WHETHER THE GOVERNMENT HAS RETAINED SUCH CONTROL OVER IT SO THAT "IT
COULD PROPERLY BE CALLED A 'SERVANT' OF THE UNITED STATES IN AGENCY
TERMS," UNITED STATES V. TOWNSHIP OF MUSKEGON, SUPRA, AT 486; WHETHER
IT WAS ORGANIZED TO EFFECTUATE A SPECIFIC GOVERNMENTAL PROGRAM, FEDERAL
LAND BANK OF ST. PAUL V. BISMARCK LUMBER CO., 314 U.S. 95, 102 (1941);
WHETHER ITS OWNERSHIP, SUBSTANTIALLY OR TOTALLY, LIES IN THE
GOVERNMENT, CLALLAM COUNTY V. UNITED STATES, 263 U.S. 341, 343 (1923);
RAILROAD CO. V. PENISTON, 18 WALL.,AT 32; WHETHER GOVERNMENT OFFICIALS
HANDLE AND CONTROL ITS OPERATIONS, STANDARD OIL CO. V. JOHNSON, SUPRA;
WHETHER ITS OFFICERS OR ANY SIGNIFICANT PORTION OF THEM ARE APPOINTED
BY THE GOVERNMENT, DEPARTMENT OF EMPLOYMENT V. UNITED STATES, SUPRA;
COMPARE RAILROAD CO. V. PENISTON, SUPRA; WHETHER THE GOVERNMENT GIVES
IT SIGNIFICANT FINANCIAL AID, WHETHER IT IS CHARGED BY LAW WITH
CARRYING OUT SOME OF THE GOVERNMENT'S INTERNATIONAL COMMITMENTS, AND
WHETHER IT PERFORMS "FUNCTIONS INDISPENSABLE TO THE WORKINGS" OF A
GOVERNMENTAL UNIT, DEPARTMENT OF EMPLOYMENT V. UNITED STATES, SUPRA, AT
359. 

UNDER ANY OF THOSE RUBRICS AND APPLYING THE FACTORS LISTED ABOVE-- A
LIST NOT INTENDED TO BE EXHAUSTIVE-- A NATIONAL BANK CANNOT BE
CONSIDERED A TAX-IMMUNE FEDERAL INSTRUMENTALITY.  IT IS A PRIVATELY
OWNED CORPORATION EXISTING FOR THE PRIVATE PROFIT OF ITS SHAREHOLDERS. 
IT PERFORMS NO SIGNIFICANT FEDERAL GOVERNMENTAL FUNCTION THAT IS NOT
PERFORMED EQUALLY BY STATE-CHARTERED BANKS.  GOVERNMENT OFFICIALS DO
NOT RUN ITS DAY-TO-DAY OPERATIONS NOR DOES THE GOVERNMENT HAVE ANY
OWNERSHIP INTEREST IN A NATIONAL BANK. 

APPELLANT POINTS TO TWO FACTORS AS LEADING TO THE CONCLUSION THAT
NATIONAL BANKS ARE FEDERAL INSTRUMENTALITIES:  THAT THEY "OWE THEIR
VERY EXISTENCE TO CONGRESSIONAL LEGISLATION," AND THAT THEY ARE SUBJECT
TO EXTENSIVE FEDERAL REGULATION.  BUT THE FACT THAT INSTITUTIONS "OWE
THEIR EXISTENCE TO," I.E., ARE CHARTERED BY, THE GOVERNMENT, HAS BEEN
DEFINITELY REJECTED AS A BASIS ALONE FOR DETERMINING THEY SHOULD BE TAX
IMMUNE.  RAILROAD CO. V. PENISTON, SUPRA; CF. BROAD RIVER POWER CO. V.
QUERY, 288 U.S. 178 (1933).  SIMILARLY, A WHOLE HOST OF BUSINESSES AND
INSTITUTIONS ARE SUBJECT TO EXTENSIVE FEDERAL REGULATION AND THAT HAS
NEVER BEEN THOUGHT TO BRING THEM WITHIN THE SCOPE OF THE "FEDERAL
INSTRUMENTALITIES" DOCTRINE.  THE PLAIN FACT IS THAT ONE COULD HOLD
THAT NATIONAL BANKS HAVE A CONSTITUTIONAL TAX-IMMUNE STATUS TODAY ONLY
BY MECHANICALLY APPLYING THE THREE SEMINAL CASES OF M'CULLOCH, OSBORN,
AND OWENSBORO.  IT IS INSTRUCTIVE, THEREFORE, TO EXAMINE THE FUNCTIONS
PERFORMED BY THE NATIONAL BANKS INVOLVED IN THOSE CASES. 

THE SECOND BANK OF THE UNITED STATES, INVOLVED IN M'CULLOCH AND
OSBORN, WOULD CLEARLY BE A FEDERAL INSTRUMENTALITY UNDER THE COURT'S
MOST RECENT DISCUSSION OF THE DOCTRINE (DEPARTMENT OF EMPLOYMENT,
SUPRA):  THE UNITED STATES OWNED 20% OF ITS CAPITAL STOCK (THE
REMAINDER BEING OWNED BY PRIVATE PERSONS); THE PRESIDENT APPOINTED FIVE
OF ITS 25 DIRECTORS, AND THE GOVERNMENT, AS A SHAREHOLDER, PARTICIPATED
IN THE ELECTION OF THE OTHERS; THE SECRETARY OF THE TREASURY WAS
REQUIRED TO DEPOSIT ALL OF THE PUBLIC FUNDS IN THE BANK, UNLESS HE
COULD GIVE REASONS TO CONGRESS WHY HE SHOULD NOT DO SO; THE BANK WAS
REQUIRED TO TRANSMIT FUNDS FOR THE UNITED STATES WITHOUT CHARGE; THE
BANK ISSUED CURRENCY WHICH WAS ESTABLISHED AS LEGAL TENDER FOR ALL
DEBTS OWING TO THE GOVERNMENT; AND THE BANK CLEARLY ACTED AS THE FISCAL
AGENT OF THE GOVERNMENT, HANDLING ITS FOREIGN EXCHANGE TRANSACTIONS. 
SEE P. STUDENSKI & H. KROOSS, FINANCIAL HISTORY OF THE UNITED STATES 83
88, 103-106 (2D ED. 1963); FEDERAL RESERVE SYSTEM, BANKING STUDIES 7-8,
18, 39-41 (1941).     EVEN THE NATIONAL BANK INVOLVED IN OWENSBORO
MIGHT WARRANT TAX-IMMUNE STATUS WERE IT IN EXISTENCE TODAY.  IT WAS
ESTABLISHED PURSUANT TO THE NATIONAL CURRENCY ACTS OF 1863 AND 1864 /5/
WHICH WERE ENACTED LARGELY TO BOLSTER THE UNION'S FINANCIAL STATUS,
SHAKY BECAUSE OF THE CIVIL WAR.  BANKING STUDIES, SUPRA, AT 43-46. 
MOST IMPORTANTLY, FROM THE STANDPOINT OF ANALYZING THE FEDERAL
FUNCTIONS SUCH BANKS SERVED, NATIONAL BANKS UNDER THE CIVIL WAR
LEGISLATION, /6/  TO WHICH NATIONAL BANKS TODAY TRACE THEIR HISTORY,
HAD IMPORTANT AND SIGNIFICANT FUNCTIONS CONCERNING CURRENCY.  THEY WERE
AUTHORIZED TO ISSUE CURRENCY, PRINTED FOR THEM BY THE TREASURY
DEPARTMENT, AND SUCH CURRENCY WAS ESTABLISHED AS LEGAL TENDER FOR ALL
DEBTS OWING TO, OR PAYABLE BY, THE GOVERNMENT.  TO INSURE THE STABILITY
OF THE NATIONAL CURRENCY BY INSURING THE STABILITY OF THE ISSUING
BANKS, AS WELL AS TO PROVIDE A READY MARKET FOR THE GOVERNMENT, EACH
SUCH NATIONAL BANK WAS REQUIRED TO SECURE ITS CURRENCY BY DEPOSITING
UNITED STATES BONDS WITH THE TREASURY DEPARTMENT.  BANKING STUDIES,
SUPRA, 14-16, 41-46; STUDENSKI & KROOSS, SUPRA, 154-155. 

ALL OF THIS WAS RADICALLY CHANGED WITH THE PASSAGE OF THE FEDERAL
RESERVE ACT OF 1913, 38 STAT. 251, AS AMENDED, 12 U.S.C. 221 ET SEQ.,
AND BY SUBSEQUENT DEVELOPMENTS WITH RESPECT BOTH TO THE FEDERAL RESERVE
SYSTEM AND TO NATIONAL BANKS.  TO CAPSULIZE THOSE DEVELOPMENTS GREATLY,
SUFFICE IT TO SAY THAT THE FEDERAL RESERVE BANKS (AND SYSTEM) ARE NOW
THE MONETARY AND FISCAL AGENTS OF THE UNITED STATES.  12 U.S.C. 391. 
BY 1935, THE POWER OF NATIONAL BANKS TO ISSUE CURRENCY HAD CEASED AND
NOW FEDERAL RESERVE BANKS ARE THE ONLY BANKING INSTITUTIONS THAT CAN DO
SO.  BANKING STUDIES, SUPRA, AT 240; FEDERAL RESERVE SYSTEM, THE
FEDERAL RESERVE SYSTEM:  PURPOSES AND FUNCTIONS C. X (5TH REV. ED.
1967).  THE DIMINISHED IMPORTANCE OF NATIONAL BANKS AS FEDERAL
FUNCTIONARIES WAS COMPENSATED FOR BY THE ENACTMENT OF LEGISLATION
DESIGNED TO MAKE THEM MORE COMPETITIVE WITH STATE BANKS, E.G., BRANCH
BANKING, 44 STAT. 1228 (1927), AS AMENDED, 12 U.S.C. 36(C); FIDUCIARY
POWERS, 76 STAT. 668 (1962), 12 U.S.C. 92A; RATE OF INTEREST ON LOANS,
48 STAT. 191 (1933), AS AMENDED, 12 U.S.C. 85; CAPITALIZATION, 48 STAT.
185 (1933), 12 U.S.C. 51; AND INTEREST ON TIME AND SAVINGS DEPOSITS, 44
STAT. 1232 (1927), 12 U.S.C. 371. 

TO BE SURE, THE FEDERAL RESERVE SYSTEM COULD NOT FUNCTION WITHOUT
NATIONAL BANKS, WHICH ARE REQUIRED TO BE MEMBERS THEREIN, 12 U.S.C.
222, AND IN THAT SENSE THEY ARE PART AND PARCEL OF THE ESTABLISHMENT
AND EFFECTUATION OF THE NATIONAL FISCAL AND MONETARY POLICIES.  BUT, IN
MY VIEW, THAT DOES NOT MAKE THEM SUFFICIENTLY QUASI-PUBLIC TO ENJOY THE
TAX-IMMUNE STATUS OF FEDERAL INSTRUMENTALITIES.  IF THAT ALONE WERE
ENOUGH, THEN IT WOULD SEEM THAT STATE BANKS WHICH ELECT TO JOIN THE
FEDERAL RESERVE SYSTEM SHOULD ALSO BE TAX-IMMUNE FEDERAL
INSTRUMENTALITIES.  /7/ 

IN ANY EVENT, THERE IS LITTLE DIFFERENCE TODAY BETWEEN A NATIONAL
BANK AND ITS STATE-CHARTERED COMPETITOR:  THE OWNERSHIP, CONTROL AND
CAPITAL SOURCE OF EACH IS PRIVATE; EACH EXISTS FOR PRIVATE PROFIT. 
MORE IMPORTANTLY, NEITHER MAY ISSUE LEGAL TENDER: 

     "WITH THE PASSING OF THE NATIONAL BANK NOTES, THE UNITED
STATES

  LOST MUCH OF THE DIFFERENCE BETWEEN THE NATIONAL BANKING SYSTEM

  AND THE STATE BANKING SYSTEMS.  EXCEPT FOR AUTOMATIC MEMBERSHIP

  IN THE FEDERAL RESERVE SYSTEM, DIFFERENT EXAMINING BOARDS, AND

MORE OR LESS DIFFERENT STANDARDS OF EXAMINATION, APPRAISAL, AND

  THE LIKE, THE MAIN POINT OF DIFFERENTIATION BETWEEN THE NATIONAL

  BANKING SYSTEM AND ANY (STATE) . . . BANKING SYSTEM . . . WAS

  FORMERLY THE PRIVILEGE OF CURRENCY ISSUE."  J. PARIS, MONETARY

  POLICIES OF THE UNITED STATES, 1932-1938, AT 96 (1938). 

TODAY THE NATIONAL BANKS PERFORM NO SIGNIFICANT FISCAL SERVICES TO
THE FEDERAL GOVERNMENT NOT PERFORMED BY THEIR STATE COMPETITORS.  ANY
FEDERALLY INSURED BANK, STATE OR NATIONAL, MAY BE A GOVERNMENT
DEPOSITORY.  12 U.S.C. 265.  THE PRINCIPAL CHECKING ACCOUNTS OF THE
GOVERNMENT ARE CARRIED TODAY, NOT BY NATIONAL BANKS, BUT BY THE FEDERAL
RESERVE BANKS.  WHEN A NEW ISSUE OF GOVERNMENT SECURITIES IS OFFERED,
THE FEDERAL RESERVE BANKS RECEIVE THE APPLICATIONS OF PURCHASERS.  WHEN
GOVERNMENT SECURITIES ARE TO BE REDEEMED OR EXCHANGED, THE TRANSACTIONS
ARE HANDLED BY THE FEDERAL RESERVE BANKS.  THOSE BANKS ADMINISTER FOR
THE TREASURY THE TAX AND LOAN DEPOSIT ACCOUNTS OF THE BANKS IN THEIR
RESPECTIVE DISTRICTS.  SEE THE FEDERAL RESERVE SYSTEM:  PURPOSES AND
FUNCTIONS, SUPRA, AT 225-234, 274-277; BANKING STUDIES, SUPRA, 260
265. 

IN GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S.,AT 483, MR. JUSTICE
STONE WROTE FOR THE COURT: 

     "(THE IMPLIED IMMUNITY OF ONE GOVERNMENT AND ITS AGENCIES FROM

  TAXATION BY THE OTHER SHOULD, AS A PRINCIPLE OF CONSTITUTIONAL

  CONSTRUCTION, BE NARROWLY RESTRICTED.  FOR THE EXPANSION OF THE

  IMMUNITY OF THE ONE GOVERNMENT CORRESPONDINGLY CURTAILS THE

  SOVEREIGN POWER OF THE OTHER TO TAX, AND WHERE THAT IMMUNITY IS

  INVOKED BY THE PRIVATE CITIZEN IT TENDS TO OPERATE FOR HIS

BENEFIT AT THE EXPENSE OF THE TAXING GOVERNMENT AND WITHOUT

  CORRESPONDING BENEFIT TO THE GOVERNMENT IN WHOSE NAME THE

  IMMUNITY IS CLAIMED."  /8/

THAT IS PRECISELY THE SITUATION HERE; I WOULD HEED THOSE WORDS AND HOLD
THAT NATIONAL BANKS, TODAY, ARE NOT IMMUNE FROM NONDISCRIMINATORY STATE
TAXATION AS FEDERAL INSTRUMENTALITIES.  I MIGHT ALSO ADD THAT I AM A
BIT MYSTIFIED THAT UNDER THE COURT'S DECISIONS IN THIS FIELD THE
FEDERAL GOVERNMENT IN PRACTICAL EFFECT MUST PAY A STATE TAX IN DEALING
WITH ITS CONTRACTORS (WHO PASS THE TAX ON TO THE GOVERNMENT), SEE,
E.G., ALABAMA V. KING & BOOZER, 314 U.S. 1 (1941), BUT THAT A NATIONAL
BANK, A PRIVATE PROFIT-MAKING CORPORATION, IS CONSTITUTIONALLY IMMUNE
FROM TAXATION. 

        II. 

THE COURT HOLDS THAT 12 U.S.C. 548, ANTE, AT 341, N. 3, "WAS INTENDED
TO PRESCRIBE THE ONLY WAYS IN WHICH THE STATES CAN TAX NATIONAL
BANKS."  ANTE, AT 343.  I WOULD BE LESS THAN CANDID NOT TO ACKNOWLEDGE
THAT THAT HOLDING HAS THE VIRTUE OF BEING SUPPORTED BY SUBSTANTIAL
PRECEDENT.  BUT THAT SEEMS TO ME TO BE ITS ONLY VIRTUE.  THAT
INTERPRETATION OF SEC. 548 HAS ITS JUDICIAL ORIGIN IN THE OWENSBORO
CASE.  GIVEN THE CONSTITUTIONAL PREMISE OF OWENSBORO, THAT
INTERPRETATION WOULD BE QUITE CLEARLY CORRECT.  BUT SINCE I REJECT THE
CONSTITUTIONAL PREMISE SO FAR AS NATIONAL BANKS TODAY ARE CONCERNED, IT
SEEMS TO ME SEC. 548 OUGHT TO BE EXAMINED FRESHLY, FOR THE "IMMUNITY
FORMERLY SAID TO REST ON CONSTITUTIONAL IMPLICATION (SHOULD NOT) . . .
NOW BE RESURRECTED IN THE FORM OF STATUTORY IMPLICATION."  OKLAHOMA TAX
COMM'N V. UNITED STATES, 319 U.S. 598, 604 (1943). 

ON NATIONAL BANK SHARES, ON DIVIDENDS ON SHARES IN THE HANDS OF
STOCKHOLDERS, ON THE INCOME OF THE BANK, AND TAXES "ACCORDING TO OR
MEASURED BY" A BANK'S INCOME.  IT PROVIDES THAT THE IMPOSITION OF ANY
ONE OF THE FOUR LISTED TAXES "SHALL BE IN LIEU OF THE OTHERS."  THAT
STATEMENT, TOGETHER WITH LANGUAGE OF THE SECTION OMITTED IN THE COURT'S
NOTE AS NOT PERTINENT (ANTE, AT 341-342, N. 3), /10/  MAKES CLEAR THAT
THE PURPOSE OF THE SECTION WAS TO INSURE THE COMPETITIVE EQUALITY OF
THE BANKS WITH OTHER BUSINESSES BY PREVENTING THE BANK OR ITS
SHAREHOLDERS FROM BEING SUBJECTED TO MORE THAN ONE OF THE FOUR
ENUMERATED TYPES OF TAXES, OTHER THAN REAL PROPERTY TAXES, SO AS TO
PREVENT MULTIPLE TAXATION OF THE SAME INCOME, UNLESS THE STATES TAXED
THE INCOME OF OTHER BUSINESSES IN SIMILAR MULTIPLE FASHION.  SEE 12
U.S.C. 548, SUBSECTIONS 1(B), (C), AND (D), SUPRA, N. 10.  ALL THAT THE
MAJORITY CAN POINT TO IN THE LEGISLATIVE HISTORY OF SEC. 548 IS THAT
THE CONGRESS WAS WELL AWARE OF M'CULLOCH V. MARYLAND.  AND THAT
DECISION SPECIFICALLY STATED THE FOLLOWING: 

"THIS OPINION DOES NOT DEPRIVE THE STATES OF ANY RESOURCS WHICH

  THEY ORIGINALLY POSSESSED.  IT DOES NOT EXTEND TO A TAX PAID BY

  THE REAL PROPERTY OF THE BANK, IN COMMON WITH THE OTHER REAL

  PROPERTY WITHIN THE STATE, NOR TO A TAX IMPOSED ON THE INTEREST

  WHICH THE CITIZENS OF MARYLAND MAY HOLD IN THIS INSTITUTION, IN

  COMMON WITH OTHER PROPERTY OF THE SAME DESCRIPTION THROUGHOUT THE

  STATE."  (4 WHEAT.,AT 436.) 

I VIEW SEC. 548 AS CONGRESSIONAL DELINEATION OF THOSE AREAS OF STATE
TAXATION OF NATIONAL BANKS PERMITTED BY THE M'CULLOCH DECISION ITSELF. 
I WOULD HOLD THAT THE SECTION WAS "MERELY DESIGNED TO INSURE THAT THE
INHERENT TAXING POWERS WHICH WERE RECOGNIZED IN" THAT CASE-- "E.G., THE
POWER TO TAX THE REAL PROPERTY OF THE BANKS AS WELL AS THE PRIVATELY
OWNED SHARES-- BE EXERCISED IN A NONDISCRIMINATORY FASHION."  LIBERTY
NAT. BANK V. BUSCAGLIA, 21 N.Y.2D 357, 370, 235 N.E.2D 101, 108
(1967).  AS THIS COURT SAID IN TRADESMENS NAT. BANK V. OKLAHOMA TAX
COMM'N, 309 U.S. 560, 567 (1940), "THE VARIOUS RESTRICTIONS (SEC. 548)
. . . PLACES ON THE PERMITTED METHODS OF TAXATION ARE DESIGNED TO
PROHIBIT ONLY THOSE SYSTEMS OF STATE TAXATION WHICH DISCRIMINATE IN
PRACTICAL OPERATION AGAINST NATIONAL BANKING ASSOCIATIONS OR THEIR
SHAREHOLDERS AS A CLASS." 

MOREOVER, WHATEVER ELSE MAY BE SAID OF THE STATUTE, IT MOST
ASSUREDLY DOES NOT PROVIDE SPECIFICALLY THAT IT IS THE SOLE MEASURE OF
THE STATE'S POWER OF TAXATION.  ONE COULD ARGUE THAT, GIVEN THE STATE
OF CONSTITUTIONAL LAW AS IT THEN EXISTED, CONGRESS SAW NO NEED TO SAY
SPECIFICALLY IN SEC. 548 THAT NATIONAL BANKS WERE IMMUNE FROM STATE
TAXATION EXCEPT AS THAT SECTION PERMITTED.  ASIDE FROM THE MISREADING
OF M'CULLOCH THAT SUCH A VIEW ENTAILS, THE CONSTITUTIONAL IMMUNITY OF
FEDERAL INSTRUMENTALITIES WAS JUST AS PLAIN WHEN CONGRESS PROVIDED
STATUTORY IMMUNITY FOR SUCH AGENCIES AS, E.G., THE FEDERAL RESERVE
BANKS, 38 STAT. 258 (1913), 12 U.S.C. 531; FEDERAL LAND BANKS, 39 STAT.
380 (1916), 12 U.S.C. 931; MANY OTHER FEDERAL BANKING INSTITUTIONS;
/11/  THE RECONSTRUCTION FINANCE CORPORATION, 47 STAT. 9 (1932), 15
U.S.C. 607; AND THE PUBLIC HOUSING ADMINISTRATION, 50 STAT. 890 (1937),
42 U.S.C. 1405(E), AND A HOST OF GOVERNMENT-OWNED CORPORATIONS.  /12/ 

IT IS NOT WITHOUT RELEVANCE IN CONSTRUING SEC. 548, IT SEEMS TO ME,
THAT THE KINDS OF STATE TAXES HERE INVOLVED DID NOT EXIST AT THE TIME
THE SECTION WAS ADOPTED AND WERE NOT A SIGNIFICANT FACTOR IN THE
RAISING OF STATE REVENUE UNTIL THE EARLY 1930'S, SUBSEQUENT TO THE LAST
AMENDMENT OF SEC. 548 IN 1926.  SEE GENERALLY H.R. REP. NO. 565, 89TH
CONG., 1ST SESS., 608 (1965).  I THINK WE SHOULD BE RELUCTANT TO
INTERPRET A STATUTE HAVING SUCH NARROW SCOPE AS SEC. 548 AS
ENCOMPASSING SUCH A BROAD PROHIBITORY APPLICATION.  IT SEEMS TO ME THAT
WE WOULD DO FAR BETTER TO RECOGNIZE THAT THE CONSTITUTION DOES NOT
PROHIBIT NONDISCRIMINATORY STATE TAXATION OF NATIONAL BANKS, AND THAT
SEC. 548 LIMITS ONLY THE KINDS OF TAXES SPECIFICALLY SET FORTH
THEREIN.  ONLY IN THAT WAY IS CONGRESS FREE TO RE-EVALUATE THE
SITUATION.  THAT IS, SO FAR AS CONSTRUING SEC. 548 IS CONCERNED, IN
PRACTICAL EFFECT THE ISSUE IS WHO SHALL BEAR THE BURDEN OF SEEKING
CONGRESSIONAL ACTION.  I WOULD PUT THE BURDEN WHERE IT OUGHT TO BE,
NAMELY, ON THE PRIVATE PROFIT-MAKING CORPORATION THAT SEEKS EXEMPTION
FROM NONDISCRIMINATORY STATE TAXATION. 

FINALLY, A MAJOR NATIONAL BANKING POLICY HAS BEEN TO FOSTER
COMPETITIVE EQUALITY OF NATIONAL AND STATE BANKS.  SEE, E.G., FIRST
NAT. BANK V. WALKER BANK, 385 U.S. 252 (1966); LEWIS V. FIDELITY &
DEPOSIT CO., 292 U.S. 559 (1934).  WE OUGHT, IF OTHER CONSIDERATIONS
ARE NOT DECISIVE, TO PROMOTE RATHER THAN RETARD THAT STRONG POLICY. 

FOR THE REASONS STATED, I WOULD AFFIRM. 

/1/  THE REDUCTIO AD ABSURDUM IN THE TEXT IS, UNLIKE MOST, SOMEWHAT
ACCURATE.  ONE ITEM UPON WHICH, APPELLANT INFORMED ITS SUPPLIER, IT
SHOULD NOT HAVE TO PAY THE SALES TAX WAS A WASTEBASKET (AS WELL AS,
E.G., "1 BOX 5 X 7 INDEX CARDS").  THE RECORD DOES NOT REVEAL THE
EXTENT OF APPELLANT'S LIABILITY FOR USE TAXES; APPELLANT PAID A TOTAL
OF $575.66 IN SALES TAXES FOR THE THREE MONTHS OF THE YEAR 1966 THAT
ARE SPECIFICALLY AT ISSUE HERE. 

/2/  BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393, 412-413 (1932)
(DISSENTING OPINION), QUOTING FROM PASSENGER CASES, 7 HOW.  283, 470
(1849) (TANEY, C. J.). 

/3/  GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466, 489, 490
(1939) (CONCURRING OPINION), QUOTING FROM PANHANDLE OIL CO. V. KNOX,
277 U.S. 218, 223 (1928) (DISSENTING OPINION). 

/4/  OWENSBORO MIGHT ALSO BE VIEWED SIMPLY AS PROHIBITING A
FRANCHISE TAX, I.E., AS HOLDING THAT A STATE MAY NOT CONDITION THE
PRIVILEGE TO OPERATE WITHIN ITS BORDERS GRANTED TO THE BANK BY
CONGRESS, BY EXACTING THAT KIND OF TAX.  (SUCH A TAX IS PERMISSIBLE
UNDER 12 U.S.C. 548, AS AMENDED AFTER OWENSBORO, SEE TRADESMENS NAT.
BANK V. TAX COMM'N, 309 U.S. 560 (1940).)  THE TAXES IN M'CULLOCH AND
OSBORN, APART FROM THEIR DISCRIMINATORY ASPECTS, MIGHT BE SIMILARLY
VIEWED:  THE MARYLAND TAX WAS DIRECTLY UPON THE BANK'S OPERATIONS, AND
ALTERNATIVELY UPON ITS PRIVILEGE TO OPERATE WITHIN THE STATE; THE OHIO
TAX IN OSBORN WAS ALSO A CONDITION UPON THE BANK'S PRIVILEGE TO
TRANSACT BUSINESS THERE.  WHILE THE LANGUAGE AND HOLDINGS OF LATER
CASES GO WELL BEYOND THAT LIMITED VIEW, THAT VIEW WOULD SEEM PREFERABLE
TO ME TO INTERPRETING THOSE CONSTITUTIONAL DECISIONS AS FLATLY
PROHIBITING ALL FORMS OF STATE TAXATION, ASIDE FROM EXCEPTIONS LISTED
IN M'CULLOCH, 4 WHEAT.,AT 436 (SEE INFRA, AT 361).     /5/  ACT OF
FEBRUARY 25, 1863, 12 STAT. 665 ("AN ACT TO PROVIDE A NATIONAL CURRENCY
. . ."); ACT OF JUNE 3, 1864, 13 STAT. 99 ("AN ACT TO PRIVIDE A
NATIONAL CURRENCY . . . "). 

/6/ SEE N. 5, SUPRA; SEE ALSO REVENUE ACTS, ACT OF MARCH 3, 1865,
SECS. 6, 7, 13 STAT. 484; ACT OF JULY 13, 1866, SEC. 9, 14 STAT. 146. 

/7/  AS OF DECEMBER 31, 1966, MEMBERSHIP IN THE FEDERAL RESERVE
SYSTEM WAS COMPOSED OF 1,351 STATE-CHARTERED, AND 4,799 NATIONAL,
BANKS.  THE FEDERAL RESERVE SYSTEM:  PURPOSES AND FUNCTIONS, SUPRA, AT
24-25.     /8/  ACCORD, INDIAN MOTORCYCLE CO. V. UNITED STATES, 283
U.S. 570, 580 (1931) (STONE, J., DISSENTING). 

/9/  COMPARE THE REJECTION OF A NATIONAL BANK'S CONTENTION THAT IT,
AS A FEDERAL INSTRUMENTALITY, SHOULD BE EXEMPT FROM THE FEDERAL LABOR
LAWS, NLRB V. BANK OF AMERICA, 130 F.2D 624, 627 (C.A. 9TH CIR. 1942)
(FOOTNOTE OMITTED): 

"IT IS A PRIVATELY OWNED CORPORATION, PRIVATELY MANAGED AND OPERATED
IN THE INTEREST OF ITS STOCKHOLDERS . . . . THE UNITED STATES DID NOT
CREATE IT, BUT HAS MERELY ENABLED IT TO BE CREATED . . . ." 

/10/  THE RELEVANT OMITTED PORTIONS OF SEC. 548 READ: 

"1.  (A) . . . 

"(B) IN THE CASE OF A TAX ON SAID SHARES THE TAX IMPOSED SHALL NOT
BE AT A GREATER RATE THAN IS ASSESSED UPON OTHER MONEYED CAPITAL IN THE
HANDS OF INDIVIDUAL CITIZENS OF SUCH STATE COMING INTO COMPETITION WITH
THE BUSINESS OF NATIONAL BANKS:  PROVIDED, THAT BONDS, NOTES, OR OTHER
EVIDENCES OF INDEBTEDNESS IN THE HANDS OF INDIVIDUAL CITIZENS NOT
EMPLOYED OR ENGAGED IN THE BANKING OR INVESTMENT BUSINESS AND
REPRESENTING MERELY PERSONAL INVESTMENTS NOT MADE IN COMPETITION WITH
SUCH BUSINESS, SHALL NOT BE DEEMED MONEYED CAPITAL WITHIN THE MEANING
OF THIS SECTION. 

"(C) IN CASE OF A TAX ON OR ACCORDING TO OR MEASURED BY THE NET
INCOME OF AN ASSOCIATION, THE TAXING STATE MAY, EXCEPT IN CASE OF A TAX
ON NET INCOME, INCLUDE THE ENTIRE NET INCOME RECEIVED FROM ALL SOURCES,
BUT THE RATE SHALL NOT BE HIGHER THAN THE RATE ASSESSED UPON OTHER
FINANCIAL CORPORATIONS NOR HIGHER THAN THE HIGHEST OF THE RATES
ASSESSED BY THE TAXING STATE UPON MERCANTILE, MANUFACTURING, AND
BUSINESS CORPORATIONS DOING BUSINESS WITHIN ITS LIMITS:  PROVIDED,
HOWEVER, THAT A STATE WHICH IMPOSES A TAX ON OR ACCORDING TO OR
MEASURED BY THE NET INCOME OF, OR A FRANCHISE OR EXCISE TAX ON,
FINANCIAL, MERCANTILE, MANUFACTURING, AND BUSINESS CORPORATIONS
ORGANIZED UNDER ITS OWN LAWS OR LAWS OF OTHER STATES AND ALSO IMPOSES A
TAX UPON THE INCOME OF INDIVIDUALS, MAY INCLUDE IN SUCH INDIVIDUAL
INCOME DIVIDENDS FROM NATIONAL BANKING ASSOCIATIONS LOCATED WITHIN THE
STATE ON CONDITION THAT IT ALSO INCLUDES DIVIDENDS FROM DOMESTIC
CORPORATIONS AND MAY LIKEWISE INCLUDE DIVIDENDS FROM NATIONAL BANKING
ASSOCIATIONS LOCATED WITHOUT THE STATE ON CONDITION THAT IT ALSO
INCLUDES DIVIDENDS FROM FOREIGN CORPORATIONS, BUT AT NO HIGHER RATE
THAN IS IMPOSED ON DIVIDENDS FROM SUCH OTHER CORPORATIONS. 

"(D) IN CASE THE DIVIDENDS DERIVED FROM THE SAID SHARES ARE TAXED,
THE TAX SHALL NOT BE AT A GREATER RATE THAN IS ASSESSED UPON THE NET
INCOME FROM OTHER MONEYED CAPITAL. 

"2.  THE SHARES OF ANY NATIONAL BANKING ASSOCIATION OWNED BY
NONRESIDENTS OF ANY STATE SHALL BE TAXED BY THE TAXING DISTRICT OR BY
THE STATE WHERE THE ASSOCIATION IS LOCATED AND NOT ELSEWHERE; AND SUCH
ASSOCIATION SHALL MAKE RETURN OF SUCH SHARES AND PAY THE TAX THEREON AS
AGENT OF SUCH NONRESIDENT SHAREHOLDERS." 

/11/  E.G., FEDERAL INTERMEDIATE CREDIT BANKS, 12 U.S.C. 1111;
FEDERAL HOME LOAN BANK, 12 U.S.C. 1433; FEDERAL SAVINGS AND LOAN
ASSOCIATIONS, 12 U.S.C. 1464(H). 

/12/  E.G., FEDERAL DEPOSIT INSURANCE CORP., 12 U.S.C. 1825.  SEE
GOVERNMENT CORPORATION CONTROL ACT OF 1945, 59 STAT. 597, AS AMENDED,
31 U.S.C. 841 ET SEQ. 

MR. JUSTICE HARLAN:  IN ADDITION TO THE REASONS GIVEN IN MY BROTHER
MARSHALL'S OPINION, WHICH I HAVE JOINED, I WOULD AFFIRM THE JUDGMENT
BELOW ON THE BASIS OF THAT PART OF JUSTICE REARDON'S OPINION FOR THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS WHICH UPHELD THE APPLICATION OF
MASSACHUSETTS' USE TAX TO NATIONAL BANKS.  SEE -- MASS.-- , -- -- -- ,
229 N.E.2D 245, 251-260. 

RONALD H. KESSEL ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WERE JOHN P. WEITZEL AND ALEX J. MCFARLAND. 

ALAN J. DIMOND, ASSISTANT ATTORNEY GENERAL OF MASSACHUSETTS, ARGUED
THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF WERE ELLIOT L.
RICHARDSON, ATTORNEY GENERAL, WALTER H. MAYO III, ASSISTANT ATTORNEY
GENERAL, AND MARK L. COHEN, DEPUTY ASSISTANT ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE WERE FILED BY JAMES LAWRENCE WHITE FOR THE
COLORADO BANKERS ASS.; BY WILLIAM C. SENNETT, ATTORNEY GENERAL, JOHN J.
GAIN, ASSISTANT ATTORNEY GENERAL, AND EDWARD T. BAKER AND GEORGE W.
KEITEL, DEPUTY ATTORNEYS GENERAL, FOR THE COMMONWEALTH OF PENNSYLVANIA;
BY LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, RUTH KESSLER TOCH, SOLICITOR
GENERAL, AND ROBERT W. BUSH, ASSISTANT ATTORNEY GENERAL, FOR THE STATE
OF NEW YORK, AND BY JAMES F. BELL AND BRIAN C. ELMER FOR THE NATIONAL
ASSOCIATION OF SUPERVISORS OF STATE BANKS. 
..END :











MANCUSI V. DEFORTE, 392 U.S. 364 


       MANCUSI, WARDEN V. DEFORTE. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT. 

        NO. 844.  ARGUED APRIL 25, 1968.-- DECIDED JUNE 17, 1968. 


THE NASSAU COUNTY DISTRICT ATTORNEY ISSUED A SUBPOENA DUCES TECUM TO
THE UNION OF WHICH RESPONDENT WAS AN OFFICER CALLING FOR THE PRODUCTION
OF CERTAIN BOOKS AND RECORDS.  THE UNION REFUSED TO COMPLY AND THE
STATE OFFICIALS .  WITHOUT A WARRANT SEIZED UNION RECORDS FROM AN
OFFICE SHARED BY RESPONDENT AND SEVERAL OTHER UNION OFFICIALS, DESPITE
THE PROTESTS OF RESPONDENT WHO WAS PRESENT IN THE OFFICE AND HAD
CUSTODY OF THE PAPERS AT THE TIME OF SEIZURE.  THE SEIZED MATERIALS
WERE ADMITTED AT HIS TRIAL FOR CONSPIRACY, COERCION, AND EXTORTION, AND
HE WAS CONVICTED.  THE FEDERAL DISTRICT COURT DENIED A WRIT OF HABEAS
CORPUS, BUT THE COURT OF APPEALS REVERSED AND DIRECTED THAT THE WRIT
ISSUE ON THE GROUND THAT RESPONDENT'S FOURTH AND FOURTEENTH AMENDMENT
RIGHTS WERE VIOLATED BY THE SEARCH AND SEIZURE AND THAT THE MATERIALS
WERE INADMISSIBLE UNDER MAPP V. OHIO, 367 U.S. 643.  RESPONDENT ARGUES
FOR AFFIRMANCE ON THIS GROUND ALONE.  HELD: 

1.  ONE HAS STANDING TO OBJECT TO A SEARCH OF HIS OFFICE, AS WELL AS
OF HIS HOME, AND RESPONDENT WAS ENTITLED TO EXPECT THAT RECORDS IN HIS
CUSTODY AT HIS OFFICE IN UNION HEADQUARTERS WOULD NOT BE TAKEN WITHOUT
HIS PERMISSION OR THAT OF HIS UNION SUPERIORS, WHETHER HE OCCUPIED A
"PRIVATE" OFFICE OR SHARED ONE WITH OTHER UNION OFFICIALS.  RESPONDENT
THUS HAD STANDING TO OBJECT TO THE ADMISSION OF THE SEIZED PAPERS AT
HIS TRIAL.  JONES V. UNITED STATES, 362 U.S. 257.  PP. 367-370. 

2.  THE WARRANTLESS SEARCH OF RESPONDENT'S OFFICE WAS UNREASONABLE
UNDER THE FOURTH AND FOURTEENTH AMENDMENTS AS THE SUBPOENA DUCES TECUM,
ISSUED BY THE DISTRICT ATTORNEY HIMSELF, DOES NOT QUALIFY AS A VALID
SEARCH WARRANT, AND THIS SEARCH COMES WITHIN NO EXCEPTION TO THE RULE
REQUIRING A WARRANT.  PP. 370-372. 

379 F.2D 897, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN 1959 THE RESPONDENT, FRANK DEFORTE, A VICE PRESIDENT OF TEAMSTERS
UNION LOCAL 266, WAS INDICTED IN NASSAU COUNTY, NEW YORK, ON CHARGES OF
CONSPIRACY, COERCION, AND EXTORTION, IT BEING ALLEGED THAT HE HAD
MISUSED HIS UNION OFFICE TO "ORGANIZE" OWNERS OF JUKE BOXES AND COMPLE
THEM TO PAY TRIBUTE.  PRIOR TO THE RETURN OF THE INDICTMENT, THE NASSAU
COUNTY DISTRICT ATTORNEY'S OFFICE ISSUED A SUBPOENA DUCES TECUM TO
LOCAL 266, CALLING UPON IT TO PRODUCE CERTAIN BOOKS AND RECORDS.  THE
SUBPOENA WAS SERVED UPON THE UNION AT ITS OFFICES.  WHEN THE UNION
REFUSED TO COMPLY, THE STATE OFFICIALS WHO HAD SERVED THE SUBPOENA
CONDUCTED A SEARCH AND SEIZED UNION RECORDS FROM AN OFFICE SHARED BY
DEFORTE AND SEVERAL OTHER UNION OFFICIALS.  THE SEARCH AND SEIZURE WERE
WITHOUT A WARRANT AND TOOK PLACE DESPITE THE PROTESTS OF DEFORTE, WHO
WAS PRESENT IN THE OFFICE AT THE TIME.  OVER DEFORTE'S OBJECTION, THE
SEIZED MATERIAL WAS ADMITTED AGAINST HIM AT TRIAL.  HE WAS CONVICTED. 

ON DIRECT APPEAL TO THE NEW YORK COURTS, /1/  DEFORTE UNSUCCESSFULLY
ARGUED, INTER ALIA, THAT THE SEIZED MATERIAL WAS CONSTITUTIONALLY
INADMISSIBLE IN STATE PROCEEDINGS UNDER THE RULE LAID DOWN IN MAPP V.
OHIO, 367 U.S. 643, BECAUSE THE SEARCH AND SEIZURE OCCURRED WITHOUT A
WARRANT.  /2/  DEFORTE SUBSEQUENTLY BROUGHT A FEDERAL HABEAS CORPUS
PROCEEDING, IN WHICH HE MADE THE SAME CONTENTION.  THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK DENIED THE WRIT,
261 F.SUPP.  579, BUT ON APPEAL THE COURT OF APPEALS FOR THE SECOND
CIRCUIT REVERSED AND DIRECTED THAT THE WRIT ISSUE.  379 F.2D 897.  WE
GRANTED CERTIORARI, 390 U.S. 903, TO CONSIDER THE STATE'S /3/
CONTENTION THAT THE COURT OF APPEALS ERRED IN UPSETTING THIS STATE
CONVICTION.  CONCLUDING THAT THE COURT OF APPEALS WAS RIGHT, WE
AFFIRM. 

        I. 

IT IS DESIRABLE AT THE OUTSET TO MAKE CLEAR WHAT IS AND WHAT IS NOT
INVOLVED IN THIS CASE.  THE DECISION BELOW WAS BASED SOLELY UPON A
FINDING THAT DEFORTE'S FOURTH AND FOURTEENTH AMENDMENT RIGHTS, SEE KER
V. CALIFORNIA, 374 U.S. 23, 30-34, WERE VIOLATED BY THE SEARCH AND
SEIZURE, AND THAT THE SEIZED MATERIAL WAS THEREFORE INADMISSIBLE UNDER
MAPP.  IT IS ON THIS GROUND ALONE THAT DEFORTE ARGUES FOR AFFIRMANCE. 
CONSEQUENTLY, THERE IS NO OCCASION TO CONSIDER WHETHER DEFORTE MIGHT
SUCCESSFULLY HAVE ASSERTED HIS FIFTH AMENDMENT RIGHT AGAINST SELF
INCRIMINATION WITH RESPECT TO THE USE AGAINST HIM OF THE SEIZED
RECORDS.  CF. UNITED STATES V. WHITE, 322 U.S. 694; WILSON V. UNITED
STATES, 221 U.S. 361.  NOR IS THERE ANY NEED TO INQUIRE WHETHER DEFORTE
COULD HAVE ASSERTED A FOURTH OR FIFTH AMENDMENT CLAIM ON BEHALF OF THE
UNION, FOR HE DID NOT DO SO.  MOREOVER, THIS IS NOT A CASE IN WHICH IT
IS NECESSARY TO DECIDE WHETHER THE TRADITIONAL DOCTRINE THAT FOURTH
AMENDMENT RIGHTS "ARE PERSONAL RIGHTS, AND . . . MAY BE ENFORCED BY
EXCLUSION OF EVIDENCE ONLY AT THE INSTANCE OF ONE WHOSE OWN PROTECTION
WAS INFRINGED BY THE SEARCH AND SEIZURE," SIMMONS V. UNITED STATES, 390
U.S. 377, AT 389, SHOULD BE MODIFIED.  CF. ID., AT 390, N. 12.  FOR
DEFORTE CLAIMS THAT UNDER THE TRADITIONAL RULE HE DOES HAVE STANDING TO
CHALLENGE THE ADMISSION AGAINST HIM AT TRIAL OF UNION RECORDS SEIZED
FROM THE OFFICE WHERE HE WORKED.  THE QUESTIONS FOR DECISION, THEN, ARE
WHETHER DEFORTE HAS FOURTH AMENDMENT STANDING TO OBJECT TO THE SEIZURE
OF THE RECORDS AND, IF SO, WHETHER THE SEARCH WAS ON PROHIBITED BY THE
FOURTH AMENDMENT. 

        II. 

WE DEAL, FIRST, WITH THE QUESTION OF "STANDING."  THE FOURTH
AMENDMENT GUARANTEES THAT "THE RIGHT OF THE PEOPLE TO BE SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE
SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED."  THE PAPERS WHICH WERE
SEIZED IN THIS CASE BELONGED NOT TO DEFORTE BUT TO THE UNION.  HENCE,
DEFORTE CAN HAVE PERSONAL STANDING ONLY IF, AS TO HIM, THE SEARCH
VIOLATED THE "RIGHT OF THE PEOPLE TO BE SECURE IN THEIR . . . HOUSES .
. . ."  /4/  THIS COURT HAS HELD THAT THE WORD "HOUSES," AS IT APPEARS
IN THE AMENDMENT, IS NOT TO BE TAKEN LITERALLY, AND THAT THE PROTECTION
OF THE AMENDMENT MAY EXTEND TO COMMERCIAL PREMISES.  SEE, E.G., SEE V.
SEATTLE, 387 U.S. 541; GO-BART IMPORTING CO. V. UNITED STATES, 282 U.S.
344; SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385. 

FURTHERMORE, THE AMENDMENT DOES NOT SHIELD ONLY THOSE WHO HAVE TITLE
TO THE SEARCHED PREMISES.  IT WAS SETTLED EVEN BEFORE OUR DECISION IN
JONES V. UNITED STATES, 362 U.S. 257, THAT ONE WITH A POSSESSORY
INTEREST IN THE PREMISES MIGHT HAVE STANDING.  SEE, E.G., UNITED STATES
V. JEFFERS, 342 U.S. 48.  IN JONES, EVEN THAT REQUIREMENT WAS LOOSENED,
AND WE HELD THAT "ANYONE LEGITIMATELY ON PREMISES WHERE A SEARCH OCCURS
MAY CHALLENGE ITS LEGALITY . . .WHEN ITS FRUITS ARE PROPOSED TO BE USED
AGAINST HIM."  362 U.S.,AT 267.  /5/  THE COURT'S RECENT DECISION IN
KATZ V. UNITED STATES, 389 U.S. 347, ALSO MAKES IT CLEAR THAT CAPACITY
TO CLAIM THE PROTECTION OF THE AMENDMENT DEPENDS NOT UPON A PROPERTY
RIGHT IN THE INVADED PLACE BUT UPON WHETHER THE AREA WAS ONE IN WHICH
THERE WAS A REASONABLE EXPECTATION OF FREEDOM FROM GOVERNMENTAL
INTRUSION.  SEE 389 U.S.,AT 352.  THE CRUCIAL ISSUE, THEREFORE, IS
WHETHER, IN LIGHT OF ALL THE CIRCUMSTANCES, DEFORTE'S OFFICE WAS SUCH A
PLACE. 

THE RECORD REVEALS THAT THE OFFICE WHERE DEFORTE WORKED CONSISTED OF
ONE LARGE ROOM, WHICH HE SHARED WITH SEVERAL OTHER UNION OFFICIALS. 
THE RECORD DOES NOT SHOW FROM WHAT PART OF THE OFFICE THE RECORDS WERE
TAKEN, AND DEFORTE DOES NOT CLAIM THAT IT WAS A PART RESERVED FOR HIS
EXCLUSIVE PERSONAL USE.  THE PARTIES HAVE STIPULATED THAT DEFORTE SPENT
"A CONSIDERABLE AMOUNT OF TIME" IN THE OFFICE, AND THAT HE HAD CUSTODY
OF THE PAPERS AT THE MOMENT OF THEIR SEIZURE.  /6/ 

WE HOLD THAT IN THESE CIRCUMSTANCES DEFORTE HAD FOURTH AMENDMENT
STANDING TO OBJECT TO THE ADMISSION OF THE PAPERS AT HIS TRIAL.  IT HAS
LONG BEEN SETTLED THAT ONE HAS STANDING TO OBJECT TO A SEARCH OF HIS
OFFICE, AS WELL AS OF HIS HOME.  SEE, E.G., GOULED V. UNITED STATES,
255 U.S. 298; UNITED STATES V. LEFKOWITZ, 285 U.S. 452; GOLDMAN V.
UNITED STATES, 316 U.S. 129; CF. LOPEZ V. UNITED STATES, 373 U.S. 427;
OSBORN V. UNITED STATES, 385 U.S. 323.  SINCE THE COURT IN JONES V.
UNITED STATES, SUPRA, EXPLICITLY DID AWAY WITH THE REQUIREMENT THAT TO
ESTABLISH STANDING ONE MUST SHOW LEGAL POSSESSION OR OWNERSHIP OF THE
SEARCHED PREMISES, SEE 362 U.S.,AT 265-267, IT SEEMS CLEAR THAT IF
DEFORTE HAD OCCUPIED A "PRIVATE" OFFICE IN THE UNION HEADQUARTERS, AND
UNION RECORDS HAD BEEN SEIZED FROM A DESK OR A FILING CABINET IN THAT
OFFICE, HE WOULD HAVE HAD STANDING.  CF. GO-BART IMPORTING CO. V.
UNITED STATES, 282 U.S. 344; SILVERTHORNE LUMBER CO. V. UNITED STATES,
251 U.S. 385.  IN SUCH A "PRIVATE" OFFICE, DEFORTE WOULD HAVE BEEN
ENTITLED TO EXPECT THAT HE WOULD NOT BE DISTURBED EXCEPT BY PERSONAL OR
BUSINESS INVITEES, AND THAT RECORDS WOULD NOT BE TOUCHED EXCEPT WITH
THEIR PERMISSION OR THAT OF UNION HIGHER-UPS.  THIS EXPECTATION WAS
INEVITABLY DEFEATED BY THE ENTRANCE OF STATE OFFICIALS, THEIR CONDUCT
OF A GENERAL SEARCH, AND THEIR REMOVAL OF RECORDS WHICH WERE IN
DEFORTE'S CUSTODY.  IT IS, OF COURSE, IRRELEVANT THAT THE UNION OR SOME
OF ITS OFFICIALS MIGHT VALIDLY HAVE CONSENTED TO A SEARCH OF THE AREA
WHERE THE RECORDS WERE KEPT, REGARDLESS OF DEFORTE'S WISHES, FOR IT IS
NOT CLAIMED THAT ANY SUCH CONSENT WAS GIVEN, EITHER EXPRESSLY OR BY
IMPLICATION. 

OUR CONCLUSION THAT DEFORTE HAD STANDING FINDS STRONG SUPPORT IN
JONES V. UNITED STATES, SUPRA.  JONES WAS THE OCCASIONAL OCCUPANT OF AN
APARTMENT TO WHICH THE OWNER HAD GIVEN HIM A KEY.  THE POLICE SEARCHED
THE APARTMENT WHILE JONES WAS PRESENT, AND SEIZED NARCOTICS WHICH THEY
FOUND IN A BIRD'S NEST IN AN AWNING OUTSIDE A WINDOW.  THUS, LIKE
DEFORTE, JONES WAS NOT THE OWNER OF THE SEARCHED PREMISES.  LIKE
DEFORTE, JONES HAD LITTLE EXPECTATION OF ABSOLUTE PRIVACY, SINCE THE
OWNER AND THOSE AUTHORIZED BY HIM WERE FREE TO ENTER.  THERE WAS NO
INDICATION THAT THE AREA OF THE APARTMENT NEAR THE BIRD'S NEST HAD BEEN
SET OFF FOR JONES' PERSONAL USE, SO THAT HE MIGHT HAVE EXPECTED MORE
PRIVACY THERE THAN IN THE REST OF THE APARTMENT; IN THIS, IT WAS LIKE
THE PART OF DEFORTE'S OFFICE WHERE THE UNION RECORDS WERE KEPT.  HENCE,
WE THINK THAT OUR DECISION THAT JONES HAD STANDING CLEARLY POINTS TO
THE RESULT WHICH WE REACH HERE. 

        III. 

THE REMAINING QUESTION IS WHETHER THE SEARCH OF DEFORTE'S OFFICE WAS
"UNREASONABLE" WITHIN THE MEANING OF THE FOURTH AMENDMENT.  THE STATE
DOES NOT DENY THAT THE SEARCH AND SEIZURE WERE WITHOUT A WARRANT, AND
IT IS SETTLED FOR PURPOSES OF THE AMENDMENT THAT "EXCEPT IN CERTAIN
CAREFULLY DEFINED CLASSES OF CASES, A SEARCH OF PRIVATE PROPERTY
WITHOUT PROPER CONSENT IS 'UNREASONABLE' UNLESS IT HAS BEEN AUTHORIZED
BY A VALID SEARCH WARRANT."  CAMARA V. MUNICIPAL COURT, 387 U.S. 523,
528-529.  /7/  WE THINK IT PLAIN THAT THE STATE OFFICIALS' POSSESSION
OF A DISTRICT ATTORNEY'S SUBPOENA OF THE KIND INVOLVED HERE /8/  DOES
NOT BRING THIS CASE WITHIN ONE OF THOSE "CAREFULLY DEFINED CLASSES." 
THE STATE HAS NOT ATTEMPTED TO JUSTIFY THE SEARCH AND SEIZURE ON THAT
GROUND, AND THE NEW YORK COURTS HAVE THEMSELVES SAID AS A MATTER OF
STATE LAW THAT "(A DISTRICT ATTORNEY'S) SUBPOENA DUCES TECUM CONFERS NO
RIGHT TO SEIZE THE PROPERTY REFERRED TO IN THE SUBPOENA . . . ." 
AMALGAMATED UNION, LOCAL 224 V. LEVINE, 31 MISC.2D 416, 219 N.Y.S.2D
851, 853.  /9/ 

MOREOVER, THE SUBPOENA INVOLVED HERE COULD NOT IN ANY EVENT QUALIFY
AS A VALID SEARCH WARRANT UNDER THE FOURTH AMENDMENT, FOR IT WAS ISSUED
BY THE DISTRICT ATTORNEY HIMSELF, /10/  AND THUS OMITTED THE
INDISPENSABLE CONDITION THAT "THE INFERENCES FROM THE FACTS WHICH LEAD
TO THE COMPLAINT ' . . . BE DRAWN BY A NEUTRAL AND DETACHED MAGISTRATE
INSTEAD OF BEING JUDGED BY THE OFFICER ENGAGED IN THE OFTEN COMPETITIVE
ENTERPRISE OF FERRETING OUT CRIME.'  JOHNSON V. UNITED STATES, 333 U.S.
10, 14."  GIORDENELLO V. UNITED STATES, 357 U.S. 480, 486.  IN
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385, A CORPORATE
OFFICE WAS SEARCHED FOR PAPERS WHICH THE CORPORATION HAD REFUSED TO
DELIVER IN RESPONSE TO A NEW YORK DISTRICT ATTORNEY'S SUBPOENA,
APPARENTLY SIMILAR TO THE ONE IN THIS CASE.  SPEAKING FOR THE COURT,
MR. JUSTICE HOLMES NOT ONLY HELD THAT THE SEIZURE OF THE PAPERS WAS
UNJUSTIFIED BUT CHARACTERIZED IT AS "AN OUTRAGE."  ID., AT 391.  THE
OBJECTIONS OF BOTH THE CORPORATION AND THE OFFICER WERE SUSTAINED. 
THUS, THERE CAN BE NO DOUBT THAT UNDER THIS COURT'S PAST DECISIONS /11/
THE SEARCH OF DEFORTE'S OFFICE WAS "UNREASONABLE" WITHIN THE MEANING
OF THE FOURTH AMENDMENT.  /12/ 

THE JUDGMENT OF THE COURT OF APPEALS IS

              AFFIRMED. 

/1/  THOSE APPEALS CULMINATED IN A PETITION FOR CERTIORARI TO THIS
COURT, WHICH WAS DENIED SUB NOM. DE GRANDIS V. NEW YORK, 375 U.S 868. 

/2/  DEFORTE'S PETITION FOR CERTIORARI FOLLOWING DIRECT APPEAL WAS
DENIED IN 1963, MORE THAN TWO YEARS AFTER THE COURT'S DECISION IN MAPP
V. OHIO.  UNDER THE RULE LAID DOWN IN LINKLETTER V. WALKER, 381 U.S.
618, DEFORTE IS ENTITLED TO INVOKE THE EXCLUSIONARY PRINCIPLE
ESTABLISHED IN MAPP.  SEE 381 U.S.,AT 622 AND N. 5. 

/3/  THE PETITIONER, MANCUSI, IS THE WARDEN OF THE NEW YORK STATE
PRISON IN WHICH DEFORTE IS CONFINED. 

/4/  THE FACT THAT THE SEIZED PAPERS BELONGED TO THE UNION DOES NOT
IMPLY OF ITSELF THAT AN INDIVIDUAL COULD NEVER HAVE PERSONAL STANDING
TO OBJECT TO THEIR ADMISSION AGAINST HIM.  FOR EXAMPLE, STATE OFFICERS
CONCEIVABLY MIGHT HAVE SEIZED THE PAPERS DURING A SEARCH OF DEFORTE'S
HOME, AND IN THAT EVENT WE THINK IT CLEAR THAT HE WOULD HAVE HAD
STANDING.  WILSON V. UNITED STATES, 221 U.S. 361, IS BY NO MEANS TO THE
CONTRARY, FOR IN THAT CASE THERE WAS NO PHYSICAL SEARCH AT ALL.  THE
ONLY FOURTH AMENDMENT STANDING QUESTION IN WILSON WAS WHETHER A
CORPORATE OFFICER HAD PERSONAL STANDING TO OBJECT TO A SUBPOENA DUCES
TECUM ADDRESSED TO THE CORPORATION, ON THE GROUND THAT IT WAS
OVERBROAD.  SEE 221 U.S.,AT 375-376. 

/5/  THE PETITIONER CONTENDS THAT THIS HOLDING WAS NOT INTENDED TO
HAVE GENERAL APPLICATION, BUT THAT IT WAS DEVISED SOLELY TO SOLVE THE
PARTICULAR DILEMMA PRESENTED IN JONES:  THAT OF A DEFENDANT WHO WAS
CHARGED WITH A POSSESSORY OFFENSE AND CONSEQUENTLY MIGHT HAVE TO
CONCEDE HIS GUILT IN ORDER TO ESTABLISH STANDING IN THE USUAL WAY. 
HOWEVER, THIS LIMITED READING OF JONES OVERLOOKS THE FACT THAT IN JONES
STANDING WAS HELD TO EXIST ON TWO DISTINCT GROUNDS:  "(1) (THE
CRICUMSTANCE THAT) POSSESSION BOTH CONVICTS AND CONFERS STANDING,
ELIMINATES ANY NECESSITY FOR A PRELIMINARY SHOWING OF AN INTEREST IN
THE PREMISES SEARCHED OR THE PROPERTY SEIZED . . . . (2) EVEN WERE THIS
NOT A PROSECUTION TURNING ON ILLICIT POSSESSION, THE LEGALLY REQUISITE
INTEREST IN THE PREMISES WAS HERE SATISFIED . . . ."  362 U.S.,AT 263. 
THUS, THE SECOND BRANCH OF THE HOLDING, WITH WHICH WE ARE HERE
CONCERNED, WAS EXPLICITLY STATED TO BE OF GENERAL EFFECT. 

/6/  SEE JOINT APPENDIX 51-52.     /7/  SEE ALSON STONER V.
CALIFORNIA, 376 U.S. 483; UNITED STATES V. JEFFERS, 342 U.S. 48;
MCDONALD V. UNITED STATES, 335 U.S. 451; AGNELLO V. UNITED STATES, 269
U.S. 20. 

/8/  A COPY OF THE SUBPOENA APPEARS IN THE JOINT APPENDIX, AT 22. 
THE SUBPOENA WAS SIGNED BY THE DISTRICT ATTORNEY AND DIRECTED TO THE
UNION AS A WITNESS IN A CRIMINAL ACTION.  IT ORDERED THE UNION TO
APPEAR BEFORE THE DISTRICT ATTORNEY FORTHWITH, AND TO BRING WITH IT
SPECIFIED UNION RECORDS.  THE SUBPOENA APPEARS TO HAVE BEEN ISSUED
UNDER THE AUTHORITY OF N.Y. CODE CRIM. PROC. SECS. 609-613. 

/9/  SEE ALSO IN RE ATLAS LATHING CORP., 176 MIS.  959, 29 N.Y.S.2D
458; HAGAN, IMPOUNDING AND THE SUBPOENA DUCES TECUM, 26 BROOKLYN
L.REV.  199, 210-211 (1960).     /10/  SEE N. 8, SUPRA. 

/11/  THE COURT'S OPINION IN DAVIS V. UNITED STATES, 328 U.S. 582,
DOES CONTAIN DICTA TO THE EFFECT THAT THERE IS A LESSER RIGHT TO
PRIVACY WHEN GOVERNMENT OFFICIALS HAVE A "RIGHT" TO INSPECT THE SEIZED
ITEMS.  SEE, E.G., ID., AT 593.  HOWEVER, THE ONLY HOLDING IN DAVIS WAS
THAT THERE HAD BEEN A VALID CONSENT TO THE SEARCH; THE CASE "DID NOT
INVOLVE A SEARCH WARRANT ISSUE."  SEE V. CITY OF SEATTLE, 387 U.S. 541,
545, N. 7. 

/12/  IT IS, OF COURSE, IMMATERIAL THAT THE STATE MIGHT HAVE BEEN
ABLE TO OBTAIN THE SAME PAPERS BY MEANS WHICH DID NOT VIOLATE THE
FOURTH AMENDMENT.  AS MR. JUSTICE HOLMES STATED IN SILVERTHORNE LUMBER
CO. V. UNITED STATES, SUPRA, AT 392:  "(THE RIGHTS . . . AGAINST
UNLAWFUL SEARCH AND SEIZURE ARE TO BE PROTECTED EVEN IF THE SAME RESULT
MIGHT HAVE BEEN ACHIEVED IN A LAWFUL WAY." 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

UNTIL THIS CASE WAS DECIDED JUST NOW IT HAS BEEN THE LAW IN THIS
COUNTRY, SINCE THE FEDERAL FOURTH AMENDMENT EXCLUSIONARY RULE WAS
ADOPTED IN 1914, THAT A DEFENDANT ON TRIAL FOR A CRIME HAS NO STANDING
OR SUBSTANTIVE RIGHT TO OBJECT TO THE USE OF PAPERS AND DOCUMENTS
AGAINST HIM ON THE GROUND THAT THOSE PAPERS, BELONGING TO SOMEONE ELSE,
HAD BEEN TAKEN FROM THE OWNER IN VIOLATION OF THE FOURTH AMENDMENT. 
HERETOFORE SUCCESSFUL OBJECTION TO USE OF SUCH PAPERS AS EVIDENCE HAS
BEEN LEFT TO THE OWNER WHOSE CONSTITUTIONAL RIGHTS HAD BEEN INVADED. 
IN WILSON V. UNITED STATES, 221 U.S. 361, DECIDED IN 1911, THIS COURT
IN AN EXHAUSTIVE OPINION BY MR. JUSTICE HUGHES, LATER CHIEF JUSTICE,
APPLIED THAT PRINCIPLE BY DENYING THE BENEFIT OF THE FOURTH AND FIFTH
AMENDMENTS TO A CORPORATE OFFICER, EVEN ONE WHO HAD HELPED TO PREPARE
THE CORPORATE PAPERS SUMMONED TO BE PRODUCED.  /1/  IN UNITED STATES V.
WHITE, 322 U.S. 694, DECIDED IN 1944, THIS COURT APPLIED THE SAME
PRINCIPLE IN REJECTING A CLAIM OF A UNION OFFICER THAT THE USE OF UNION
PAPERS AND DOCUMENTS AGAINST HIM UNDER A SUBPOENA DUCES TECUM WOULD
INCRIMINATE HIM.  AND INDEED THE COURT IN TODAY CREATING ITS NEW RULE
IS UNABLE TO CITE A SINGLE PREVIOUS OPINION OF THIS COURT HOLDING TO
THE CONTRARY. 

IN CREATING THIS NEW RULE AGAINST THE USE OF PAPERS AND DOCUMENTS
WHICH SPEAK TRUTHFULLY FOR THEMSELVES, THE COURT IS PUTTING UP NEW
HURDLES AND BARRIERS BOUND TO SAVE MANY CRIMINALS FROM CONVICTION.  I
SHOULD NOT OBJECT TO THIS NEW RULE, HOWEVER, IF I THOUGHT IT WAS OR
COULD BE JUSTIFIED BY THE FOURTH OR ANY OTHER CONSTITUTIONAL
AMENDMENT.  BUT I DO NOT THINK IT CAN.  THE EXCLUSIONARY RULE ITSELF,
EVEN AS IT APPLIES TO THE EXCLUSION OF THE DEFENDANT'S OWN PROPERTY
WHEN ILLEGALLY SEIZED, HAS HAD ONLY A PRECARIOUS TENURE IN THIS COURT. 
SEE ADAMS V. NEW YORK, 192 U.S. 585 (1904); WEEKS V. UNITED STATES, 232
U.S. 383 (1914); AND MY CONCURRING OPINION IN MAPP V. OHIO, 367 U.S.
643, 661 (1961).  I WISH TO REPEAT HERE WHAT I HAVE INDICATED BEFORE,
THAT THIS SEEMS TO ME A RATHER INOPPORTUNE TIME TO CREATE A SINGLE RULE
MORE THAN THE CONSTITUTION PLAINLY REQUIRES TO BLOCK CONVICTION OF
GUILTY PERSONS BY KEEPING OUT PROBABLY THE MOST RELIABLE KIND OF
EVIDENCE THAT CAN BE OFFERED. 

A CORPORATE OR UNION OFFICIAL SUFFERS NO PERSONAL INJURY WHEN THE
BUSINESS OFFICE HE OCCUPIES AS AN AGENT OF THE CORPORATION OR UNION IS
INVADED AND WHEN RECORDS HE HAS PREPARED AND SAFEGUARDED AS AN AGENT
ARE SEIZED.  THE INVASION BY THE GOVERNMENT MAY DISRUPT THE FUNCTIONING
OF THE OFFICE, PREVENT EMPLOYEES FROM PERFORMING THEIR DUTIES, AND
RESULT IN DISCLOSURE OF BUSINESS MATTERS THE COMPANY OR UNION WISHED TO
KEEP SECRET.  BUT ALL THESE ARE INJURIES ONLY TO THE CORPORATION OR
UNION AS SUCH.  THE ORGANIZATION HAS EVERY RIGHT TO CHALLENGE SUCH
INTRUSIONS WHENEVER THEY OCCUR-- IF THE SEIZURE IS ILLEGAL, THE RECORDS
OBTAINED CAN BE SUPPRESSED IN A PROSECUTION AGAINST THE ORGANIZATION,
AND IF NO PROSECUTION IS INTIATED, THE ORGANIZATION CAN OBTAIN RETURN
OF ALL THE DOCUMENTS BY BRINGING A CIVIL ACTION.  SEE, E.G., GO-BART
IMPORTING CO. V. UNITED STATES, 282 U.S. 344 (1931).  SUCH INTRUSIONS,
HOWEVER, INVOLVE ABSOLUTELY NO INVASION OF THE "PERSONAL PRIVACY" OR
SECURITY OF THE AGENT OR EMPLOYEE AS AN INDIVIDUAL, AND HE ACCORDINGLY
HAS NO RIGHT TO SEEK SUPPRESSION OF RECORDS THAT THE CORPORATION OR
UNION ITSELF HAS MADE NO EFFORT TO REGAIN. 

THE CASES DECIDED BY THIS COURT HAVE, UNTIL TODAY, UNIFORMLY
SUPPORTED THIS VIEW AND REJECTED THE SWEEPING NEW EXCLUSIONARY RULE NOW
ADVANCED BY THE COURT.  NOR IN MY JUDGMENT DOES ANY ONE OF THE CASES
RELIED ON BY THE COURT PROVIDE SUPPORT FOR ITS HOLDING.  THE COURT'S
BASIC PREMISE IS THAT IF THE UNION PAPERS HAD BEEN TAKEN DIRECTLY FROM
A DESK USED BY DEFORTE IN A UNION OFFICE USED ONLY BY HIM, HIS STANDING
WOULD HAVE BEEN CLEAR, WITHOUT REGARD TO ANY OTHER CIRCUMSTANCES.  I
HAVE FOUND NO PAST DECISION BY THIS COURT TO THAT EFFECT.  NEITHER
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385 (1920), NOR GO
BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344 (1931), MENTIONS THE
QUESTION OF STANDING AT ALL, AND IT IS HARD TO SEE HOW THE COURT'S
INFERENCE CAN BE DRAWN FROM THESE CASES SINCE IN BOTH THE PARTY SEEKING
SUPPRESSION OF THE DOCUMENTS WAS IN FACT THE OWNER OF THEM.  ALTHOUGH
IN SILVERTHORNE THE OBJECTIONS HAD BEEN RAISED BY BOTH THE CORPORATION
AND ONE OF ITS OFFICERS, STANDING WAS NEVER EVEN MENTIONED FROM THE
BEGINNING TO THE END OF THE OPINION, AND THE COURT TREATED BOTH PARTIES
AS THE "OWNERS" OF THE DOCUMENTS.  251 U.S.,AT 391.  CONSEQUENTLY, THE
COURT'S USE OF MR. JUSTICE HOLMES' REFERENCE TO "OUTRAGE" IN NO WAY
SUPPORTS THE COURT'S HOLDING TODAY, DIRECTLY OR INDIRECTLY. 

JONES V. UNITED STATES, 362 U.S. 257 (1960), ALSO FAILS TO SUSTAIN
THE COURT'S POSITION.  IN THAT CASE THE PETITIONER HAD BEEN ARRESTED IN
A FRIEND'S APARTMENT AND WAS CHARGED WITH POSSESSION OF NARCOTICS FOUND
THERE.  THIS COURT WAS TROUBLED ABOUT THE "DILEMMA" THAT WOULD BE
CREATED BY REQUIRING THE PETITIONER, IN ORDER TO SECURE SUPPRESSION OF
THE NARCOTICS, TO SWEAR THAT THEY WERE TAKEN FROM HIS POSSESSION, THUS
CONFESSING HIS GUILT OF THE VERY OFFENSE CHARGED AGAINST HIM.  TO AVOID
THIS SITUATION THE COURT HELD THAT PETITIONER COULD MAKE HIS MOTION TO
SUPPRESS WITHOUT SWEARING TO POSSESSION, EITHER BECAUSE OF THE DILEMMA
ITSELF OR BECAUSE AS A GUEST IN THE APARTMENT HE HAD THE "LEGALLY
REQUISITE INTEREST IN THE PREMISES."  362 U.S.,AT 263.  THE COURT TODAY
PUTS GREAT STRESS ON THE STATEMENT IN JONES THAT "ANYONE LEGITIMATELY
ON PREMISES WHERE A SEARCH OCCURS MAY CHALLENGE ITS LEGALITY . . . WHEN
ITS FRUITS ARE PROPOSED TO BE USED AGAINST HIM."  362 U.S.,AT 267. 
WITH DEFERENCE I MUST POINT OUT THAT THIS SWEEPING DICTUM IS TAKEN
SOMEWHAT OUT OF CONTEXT AND CANNOT POSSIBLY HAVE THE LITERAL MEANING
ATTRIBUTED TO IT.  IT WOULD BE QUITE A HYPERBOLE, I THINK, TO SAY THAT
THE JONES OPINION SUGGESTED THAT JUST ANY PERSON WHO HAPPENED TO BE IN
A HOUSE AGAINST WHICH AN UNREASONABLE SEARCH WAS PERPETRATED COULD ASK
TO HAVE ALL EVIDENCE OBTAINED BY THAT SEARCH EXCLUDED FROM EVIDENCE
AGAINST HIM.  AS WAS ASKED BY THE COURT BELOW, WOULD THAT DICTUM ENABLE
A JANITOR TO ESCAPE THE USE OF EVIDENCE ILLEGALLY SEIZED FROM HIS
BOSS?  THE COURT APPARENTLY RECOGNIZES THIS PROBLEM EVEN NOW, FOR
DEFORTE CLEARLY WAS "LEGITIMATELY ON (THE) PREMISES" AND THUS HIS
STANDING SHOULD BE OBVIOUS, UNDER ITS READING OF JONES, WITHOUT THE
COURT'S EXTENDED DISCUSSION OF "REASONABLE EXPECTATION" AND THE RELATED
LIMITING TESTS.  THIS REASONING IN TERMS OF "EXPECTATIONS," HOWEVER,
REQUIRES CONFERRING STANDING WITHOUT REGARD TO WHETHER THE AGENT
HAPPENS TO BE PRESENT AT THE TIME OF THE SEARCH OR NOT, A RATHER
REMARKABLE CONSEQUENCE OF THE STATEMENT IN JONES.  IN FACT THE COURT'S
OPINION INDICATES TO ME THAT THE COURT IS PREPARING THE WAY TO USE
JONES TO ELIMINATE ENTIRELY THE REQUIREMENT FOR STANDING TO RAISE A
SEARCH AND SEIZURE QUESTION AND TO PERMIT A SEARCH TO BE CHALLENGED AT
ANY TIME, AT ANY PLACE, AND UNDER ALL CIRCUMSTANCES, REGARDLESS OF THE
DEFENDANT'S RELATIONSHIP TO THE PERSON OR PLACE SEARCHED OR TO THE
THINGS SEIZED.  ANY SUCH STEP WOULD ELEVATE THE FOURTH AMENDMENT TO A
POSITION OF IMPORTANCE FAR ABOVE THAT OF ANY OTHER CONSTITUTIONAL
PROVISION, COMPARE FLAST V. COHEN, ANTE, P. 83, AND WOULD MAKE IT MORE
DIFFICULT FOR THE GOVERNMENT TO CONVICT GUILTY PERSONS WHO CAN MAKE NO
CLAIM TO REDRESS IN ANY FORM SINCE THEY SUFFERED NO INVASION OF ANY
KIND BY THE SEARCH ITSELF.  I WOULD PREFER TO RETURN TO JONES ITSELF,
WHERE WE MADE QUITE CLEAR THROUGHOUT THE OPINION THAT WHILE COMMON-LAW
CONCEPTS OF PROPERTY OWNERSHIP WERE NOT CONTROLLING, STANDING WAS NOT
AUTOMATICALLY CONFERRED ON "ANYONE LEGITIMATELY ON (THE) PREMISES."  WE
STRESSED: 

     "IN ORDER TO QUALIFY AS A 'PERSON AGGRIEVED BY AN UNLAWFUL

  SEARCH AND SEIZURE' ONE MUST HAVE BEEN A VICTIM OF A SEARCH OR

  SEIZURE, ONE AGAINST WHOM THE SEARCH WAS DIRECTED, AS

  DISTINGUISHED FROM ONE WHO CLAIMS PREJUDICE ONLY THROUGH THE USE

  OF EVIDENCE GATHERED AS A CONSEQUENCE OF A SEARCH OR SEIZURE

  DIRECTED AT SOMEONE ELSE."  362 U.S.,AT 261. 

IN THE PRESENT CASE I THINK IT IS ENTIRELY CLEAR THAT THE SEARCH WAS
NOT "DIRECTED" AGAINST DEFORTE PERSONALLY, BUT WAS ADDRESSED TO AND
AIMED AT THE UNION AND DESIGNED TO SECURE FROM THE UNION PAPERS
BELONGING TO THE UNION.  THE SEARCH OCCURRED IN A LARGE ROOM, WHICH
DEFORTE SHARED WITH A NUMBER OF OTHERS, AND THE RECORDS WERE NOT TAKEN
FROM FILES AND DRAWERS USED EXCLUSIVELY BY HIM FOR HIS OWN PRIVATE
PURPOSES.  THE POLICE HAD BEEN INVESTIGATING A LARGE CONSPIRACY
PERPETRATED THROUGH THE UNION AND AT THE TIME WERE PRIMARILY INTERESTED
IN GETTING MORE INFORMATION ABOUT THE OPERATION OF THE UNION.  THE
RECORDS TAKEN WERE THOSE THAT HAD BEEN LISTED IN A SUBPOENA ADDRESSED
TO THE UNION ITSELF, AND SINCE THE UNION HAD RAISED NO OBJECTION TO THE
SUBPOENA, IT WAS UNDER A DUTY TO TURN OVER THE RECORDS.  COMPARE HALE
V. HENKEL, 201 U.S. 43 (1906). 

UNDOUBTEDLY, I SUPPOSE, EVEN IF THE UNION'S PAPERS HERE SHOULD BE
RETURNED EITHER TO THE UNION OR TO THE DEFENDANT, THE STATE COULD, ON A
NEW TRIAL, SUMMON THE PAPERS AND GET THEM AND USE THEM.  /2/  A RULE
WHICH ENCOURAGES SUCH CIRCUMVENTION AS THAT IS HARDLY THE KIND OF
PRINCIPLE TO WHICH THIS GREAT COURT SHOULD GIVE BIRTH.  I DISCLAIM ANY
RESPONSIBILITY WHATEVER FOR THE NEW RULE. 

/1/  SEE ALSO HALE V. HENKEL, 201 U.S. 43 (1906); GRANT V. UNITED
STATES, 227 U.S. 74 (1913); ESSGEE CO. V. UNITED STATES, 262 U.S. 151
(1923); GOLDSTEIN V. UNITED STATES, 316 U.S. 114 (1942); DAVIS V.
UNITED STATES, 328 U.S. 582 (1946); WONG SUN V. UNITED STATES, 371 U.S.
471 (1963); WILD V. BREWER, 329 F.2D 924 (C.A. 9TH CIR. 1964). 

/2/  SINCE THE STATE HAD OBTAINED A SUBPOENA FOR THESE DOCUMENTS
EVEN BEFORE THE SEARCH, THE NEW SUBPOENA WOULD NOT BE AN INVALID
"FRUIT" OF THE ILLEGAL SEIZURE.  COMPARE SILVERTHORNE, SUPRA. 

MR. JUSTICE WHITE, DISSENTING. 

ALTHOUGH THE FOURTH AMENDMENT PERHAPS PROTECTS THE INDIVIDUAL'S
PRIVATE DESK IN A UNION OFFICE SHARED WITH OTHER OFFICERS OR EMPLOYEES,
I DISSENT FROM THE COURT'S EXTENSION OF THE PROTECTED AREA TO THE
OFFICE DOOR. 

MICHAEL H. RAUCH, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, AND SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL. 

JAMES L. LEKIN ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT. 
..END :






















LEE V. FLORIDA, 392 U.S. 378 


       LEE ET AL. V. FLORIDA. 

        CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA,

           FOURTH DISTRICT. 

        NO. 174.  ARGUED MAY 2, 1968.-- DECIDED JUNE 17, 1968. 


A FOUR-PARTY TELEPHONE LINE WAS INSTALLED IN PETITIONER LEE'S HOUSE,
AND SHORTLY THEREAFTER, BY DIRECTION OF THE ORLANDO, FLORIDA, POLICE, A
TELEPHONE IN A NEIGHBORING HOUSE WAS CONNECTED TO THE SAME PARTY LINE. 
THE POLICE ATTACHED EQUIPMENT WHICH PERMITTED THEM TO HEAR AND RECORD
ALL CONVERSATIONS ON THE PARTY LINE WITHOUT LIFTING THE TELEPHONE
RECEIVER.  RECORDINGS OF CONVERSATION WERE INTRODUCED, OVER OBJECTION,
AT PETITIONERS' TRIAL FOR VIOLATION OF STATE LOTTERY LAWS.  PETITIONERS
WERE CONVICTED AND THE STATE APPELLATE COURT AFFIRMED, SAYING "THAT
THERE WERE NO STATE OR FEDERAL STATUTES APPLICABLE IN FLORIDA WHICH
WOULD MAKE WIRETAPPING ILLEGAL AND INADMISSIBLE IN EVIDENCE . . . ." 
HELD: 

1.  THE CONDUCT OF THE ORLANDO POLICE CLEARLY AMOUNTED TO
INTERCEPTION OF PETITIONERS' COMMUNICATIONS WITHIN THE MEANING OF SEC.
605 OF THE FEDERAL COMMUNICATIONS ACT OF 1934, WHICH PROHIBITS THE
INTERCEPTION AND DIVULGENCE (CONCEDED HERE) OF ANY COMMUNICATION
WITHOUT THE SENDER'S AUTHORIZATION.  PP. 380-382. 

2.  THE RECORDINGS OF THE ILLEGALLY INTERCEPTED CONVERSATIONS WERE
NOT ADMISSIBLE IN EVIDENCE IN THE FLORIDA COURTS IN VIEW OF THE EXPRESS
FEDERAL PROHIBITION AGAINST DIVULGENCE OF RECORDINGS SO PROCURED. 
SCHWARTZ V. TEXAS, 344 U.S. 199, OVERRULED.  PP. 382-387. 

191 SO.2D 84, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE THREE PETITIONERS WERE CONVICTED IN A FLORIDA TRIAL COURT FOR
VIOLATING THE STATE LOTTERY LAWS.  THEIR CONVICTIONS WERE AFFIRMED BY A
FLORIDA DISTRICT COURT OF APPEAL, /1/  AND THE SUPREME COURT OF FLORIDA
DENIED FURTHER REVIEW.  WE GRANTED CERTIORARI TO CONSIDER THE
APPLICATION OF SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT OF 1934, 48
STAT. 1103, 47 U.S.C. 605, TO THE CIRCUMSTANCES OF THIS CASE.  /2/
THAT STATUTE PROVIDES: 

"(NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT ANY
COMMUNICATION AND DIVULGE . . . THE EXISTENCE, CONTENTS, SUBSTANCE,
PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED COMMUNICATION TO ANY
PERSON . . . ." 

IN THE SUMMER OF 1963 PETITIONER LEE ORDERED THE INSTALLATION OF A
PRIVATE TELEPHONE IN THE HOUSE WHERE HE LIVED NEAR ORLANDO, FLORIDA. 
THE LOCAL TELEPHONE COMPANY INFORMED HIM THAT NO PRIVATE LINES WERE
AVAILABLE, AND HE WAS GIVEN A TELEPHONE ON A FOUR-PARTY LINE INSTEAD. 
A WEEK LATER, AT THE DIRECTION OF THE ORLANDO POLICE DEPARTMENT, THE
COMPANY CONNECTED A TELEPHONE IN A NEIGHBORING HOUSE TO THE SAME PARTY
LINE.  /3/  THE POLICE ATTACHED TO THIS TELEPHONE AN AUTOMATIC
ACTUATOR, A TAPE RECORDER, AND A SET OF EARPHONES.  THE EQUIPMENT WAS
CONNECTED DIRECTLY TO THE WALL OUTLET IN SUCH A WAY THAT THE POLICE
COULD HEAR AND RECORD ALL CONVERSATIONS ON THE PARTY LINE WITHOUT THE
NECESSITY OF LIFTING THE RECEIVER ON THEIR TELEPHONE.  THIS ARRANGEMENT
NOT ONLY AFFORDED THE POLICE CONTINUOUS ACCESS TO ALL OF LEE'S OUTGOING
AND INCOMING CALLS, BUT ALSO ELIMINATED THE TELLTALE "CLICK" THAT WOULD
OTHERWISE HAVE WARNED CONVERSING PARTIES THAT SOMEONE ELSE ON THE LINE
HAD PICKED UP A RECEIVER.  FURTHER, THE ARRANGEMENT INSURED THAT NOISES
IN THE HOUSE OCCUPIED BY THE POLICE WOULD NOT BE HEARD BY ANYONE ELSE
ON THE LINE.  FOR MORE THAN A WEEK THE POLICE USED THIS EQUIPMENT TO
OVERHEAR AND RECORD TELEPHONE CALLS TO AND FROM LEE'S RESIDENCE,
INCLUDING CALLS MADE TO LEE BY THE OTHER TWO PETITIONERS FROM PRIVATE
AS WELL AS PUBLIC TELEPHONES. 

AT THE PETITIONERS' TRIAL, SEVERAL OF THESE RECORDINGS WERE
INTRODUCED IN EVIDENCE BY THE PROSECUTION OVER OBJECTION BY DEFENSE
COUNSEL.  IN AFFIRMING THE CONVICTIONS, THE STATE APPELLATE COURT SAID
THAT "THERE WERE NO STATE OR FEDERAL STATUTES APPLICABLE IN FLORIDA
WHICH WOULD MAKE WIRETAPPING ILLEGAL AND INADMISSIBLE IN EVIDENCE . . .
."  /4/ 

WE DISAGREE.  THERE CLEARLY IS A FEDERAL STATUTE, APPLICABLE IN
FLORIDA AND EVERY OTHER STATE, THAT MADE ILLEGAL THE CONDUCT OF THE
ORLAND AUTHORITIES IN THIS CASE.  AND THAT STATUTE, WE HOLD TODAY, ALSO
MADE THE RECORDINGS OF THE PETITIONERS' TELEPHONE CONVERSATIONS
INADMISSIBLE AS EVIDENCE IN THE FLORIDA COURT. 

        I. 

OF TAPPING A WIRE, BUT IN TERMS OF INTERCEPTING AND DIVULGING A
COMMUNICATION.  THE STATE CONCEDES THAT THE POLICE "DIVULGED" THE
PETITIONERS' CONVERSATIONS WITHIN THE MEANING OF THE STATUTE.  BUT, IT
ARGUES, THE POLICE CANNOT BE DEEMED TO HAVE "INTERCEPTED" THE TELEPHONE
CONVERSATIONS, BECAUSE PEOPLE WHO USE PARTY LINES SHOULD REALIZE THAT
THEIR CONVERSATIONS MIGHT BE OVERHEARD. 

THIS IS NOT A CASE, HOWEVER, WHERE THE POLICE MERELY PICKED UP THE
RECEIVER ON AN ORDINARY PARTY LINE, AND WE NEED NOT DECIDE WHETHER SEC.
605 WOULD BE APPLICABLE IN THOSE CIRCUMSTANCES.  /5/  FOR HERE THE
POLICE DID MUCH MORE.  THEY DELIBERATELY ARRANGED TO HAVE A TELEPHONE
CONNECTED TO LEE'S LINE WITHOUT HIS KNOWLEDGE, AND THEY ALTERED THAT
CONNECTION IN SUCH A WAY AS TO PERMIT CONTINUOUS SURREPTITIOUS
SURVEILLANCE AND RECORDING OF ALL CONVERSATIONS ON THE LINE.  WHAT WAS
DONE HERE WAS A FAR CRY FROM THE POLICE ACTIVITY IN RATHBUN V. UNITED
STATES, 355 U.S. 107, A CASE HEAVILY RELIED UPON BY THE RESPONDENT. 
THERE WE FOUND NO INTERCEPTION WHERE "A COMMUNICATION (IS) OVERHEARD ON
A REGULARLY USED TELEPHONE EXTENSION WITH THE CONSENT OF ONE PARTY TO
THE CONVERSATION," IBID., AND WHERE THE "EXTENSION HAD NOT BEEN
INSTALLED THERE JUST FOR THIS PURPOSE BUT WAS A REGULAR CONNECTION,
PREVIOUSLY PLACED AND NORMALLY USED."  ID., AT 108.  WE VIEWED THAT
SITUATION AS THOUGH ONE OF THE PARTIES TO THE TELEPHONE CONVERSATION
HAD SIMPLY "HELD OUT HIS HANDSET SO THAT ANOTHER COULD HEAR OUT OF
IT."  ID., AT 110-111.  IN THE PRESENT CASE, BY CONTRAST, THERE WAS
NEITHER "THE CONSENT OF ONE PARTY" NOR A "REGULARLY USED" TELEPHONE
"NOT . . . INSTALLED . . . JUST FOR (THE) PURPOSE" OF SURVEILLANCE. 
THE CONDUCT OF THE ORLANDO POLICE, DELIBERATELY PLANNED AND CARRIED
OUT, CLEARLY AMOUNTED TO INTERCEPTION OF THE PETITIONERS'
COMMUNICATIONS WITHIN THE MEANING OF SEC. 605 OF THE FEDERAL
COMMUNICATIONS ACT.  /6/

        II. 

THE REMAINING QUESTION IS WHETHER THE RECORDINGS THAT THE POLICE
OBTAINED BY INTERCEPTING THE PETITIONERS' TELEPHONE CONVERSATIONS WERE
ADMISSIBLE IN EVIDENCE IN THE FLORIDA TRIAL COURT, NOTWITHSTANDING THE
EXPRESS PROHIBITION OF FEDERAL LAW AGAINST DIVULGENCE OF RECORDINGS SO
PROCURED. 

1934, 48 STAT. 1103, SIX YEARS AFTER THE COURT HAD SAID IN OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 465, THAT "CONGRESS MAY OF COURSE
(LEGISLATE TO) PROTECT THE SECRECY OF TELEPHONE MESSAGES BY MAKING
THEM, WHEN INTERCEPTED, INADMISSIBLE IN EVIDENCE . . . ."  IN NARDONE
V. UNITED STATES, 302 U.S. 379, THE COURT WAS FIRST CALLED UPON TO
DECIDE WHETHER SEC. 605 HAD INDEED SERVED TO RENDER EVIDENCE OF
INTERCEPTED COMMUNICATIONS INADMISSIBLE IN A FEDERAL TRIAL.  IN THAT
CASE THE GOVERNMENT URGED THAT "A CONSTRUCTION BE GIVEN THE SECTION
WHICH WOULD EXCLUDE FEDERAL AGENTS SINCE IT IS IMPROBABLE CONGRESS
INTENDED TO HAMPER AND IMPEDE THE ACTIVITIES OF THE GOVERNMENT IN THE
DETECTION AND PUNISHMENT OF CRIME."  302 U.S.,AT 383.  IN REVERSING THE
JUDGMENT OF CONVICTION, THE COURT'S ANSWER TO THAT ARGUMENT WAS
UNEQUIVOCAL: 

"(THE PLAIN WORDS OF SEC. 605 FORBID ANYONE, UNLESS AUTHORIZED BY
THE SENDER, TO INTERCEPT A TELEPHONE MESSAGE, AND DIRECT IN EQUALLY
CLEAR LANGUAGE THAT 'NO PERSON' SHALL DIVULGE OR PUBLISH THE MESSAGE OR
ITS SUBSTANCE TO 'ANY PERSON.'  TO RECITE THE CONTENTS OF THE MESSAGE
IN TESTIMONY BEFORE A COURT IS TO DIVULGE THE MESSAGE.  THE CONCLUSION
THAT THE ACT FORBIDS SUCH TESTIMONY SEEMS TO US UNSHAKEN BY THE
GOVERNMENT'S ARGUMENTS. 

        .          .          .          . 

"CONGRESS MAY HAVE THOUGHT IT LESS IMPORTANT THAT SOME OFFENDERS
SHOULD GO UNWHIPPED OF JUSTICE THAN THAT OFFICERS SHOULD RESORT TO
METHODS DEEMED INCONSISTENT WITH ETHICAL STANDARDS AND DESTRUCTIVE OF
PERSONAL LIBERTY.  THE SAME CONSIDERATIONS MAY WELL HAVE MOVED THE
CONGRESS TO ADOPT SEC. 605 AS EVOKED THE GUARANTY AGAINST PRACTICES AND
PROCEDURES VIOLATIVE OF PRIVACY, EMBODIED IN THE FOURTH AND FIFTH
AMENDMENTS OF THE CONSTITUTION."  302 U.S.,AT 382, 383. 

FIFTEEN YEARS LATER, IN SCHWARTZ V. TEXAS, 344 U.S. 199, THE COURT
CONSIDERED THE QUESTION WHETHER, DESPITE SEC. 605, TELEPHONE
COMMUNICATIONS INTERCEPTED BY STATE OFFICERS COULD LAWFULLY BE RECEIVED
IN EVIDENCE IN STATE CRIMINAL TRIALS.  THAT CASE WAS DECIDED IN THE
SHADOW OF WOLF V. COLORADO, 338 U.S. 25, WHICH SHORTLY BEFORE HAD HELD
THAT "IN A PROSECUTION IN A STATE COURT FOR A STATE CRIME THE
FOURTEENTH AMENDMENT DOES NOT FORBID THE ADMISSION OF EVIDENCE OBTAINED
BY AN UNREASONABLE SEARCH AND SEIZURE."  338 U.S.,AT 33.  THE COURT IN
SCHWARTZ RECOGNIZED THAT THE PROBLEM BEFORE IT WAS "SOMEWHAT DIFFERENT"
FROM THE ONE THAT HAD BEEN PRESENTED IN WOLF, "BECAUSE THE
INTRODUCTION OF THE INTERCEPTED COMMUNICATIONS WOULD ITSELF BE A
VIOLATION" OF FEDERAL LAW.  344 U.S.,AT 201.  BUT THE COURT NONETHELESS
CONCLUDED THAT STATE TRIAL COURTS WERE NOT REQUIRED TO REJECT EVIDENCE
VIOLATIVE OF SEC. 605.  FOR IF, AS WOLF HAD HELD, STATE COURTS WERE
FREE TO ACCEPT EVIDENCE OBTAINED IN VIOLATION OF THE FEDERAL
CONSTITUTION, THE COURT REASONED THAT THEY COULD NOT BE REQUIRED TO
REJECT EVIDENCE OBTAINED AND DIVULGED IN VIOLATION OF A FEDERAL
STATUTE.  THAT WAS THE THRUST OF THE SCHWARTZ OPINION: 

"ALTHOUGH THE INTERCEPTED CALLS WOULD BE INADMISSIBLE IN A FEDERAL
COURT, IT DOES NOT FOLLOW THAT SUCH EVIDENCE IS INADMISSIBLE IN A STATE
COURT.  INDEED, EVIDENCE OBTAINED BY A STATE OFFICER BY MEANS WHICH
WOULD CONSTITUTE AN UNLAWFUL SEARCH AND SEIZURE UNDER THE FOURTH
AMENDMENT TO THE FEDERAL CONSTITUTION IS NONETHELESS ADMISSIBLE IN A
STATE COURT, WOLF V. COLORADO, 338 U.S. 25, WHILE SUCH EVIDENCE, IF
OBTAINED BY A FEDERAL OFFICER, WOULD BE CLEARLY INADMISSIBLE IN A
FEDERAL COURT.  WEEKS V. UNITED STATES, 232 U.S. 383."  IBID. 

THE FACT THAT A STATE OFFICIAL WOULD BE VIOLATING THE EXPRESS TERMS
OF THE FEDERAL STATUTE BY THE VERY ACT OF DIVULGING THE INTERCEPTED
COMMUNICATIONS AS EVIDENCE FOR THE PROSECUTION AT THE TRIAL, THE COURT
IN SCHWARTZ SAID, WAS "SIMPLY AN ADDITIONAL FACTOR FOR A STATE TO
CONSIDER IN FORMULATING A RULE OF EVIDENCE FOR USE IN ITS OWN COURTS." 
IBID. BUT IN BENANTI V. UNITED STATES, 355 U.S. 96, FIVE YEARS LATER,
THE COURT RETURNED TO THE TEACHING OF NARDONE IN GIVING EMPHATIC
RECOGNITION TO THE LANGUAGE OF THE STATUTE THAT ITSELF MAKES ILLEGAL
THE DIVULGENCE OF INTERCEPTED COMMUNICATIONS.  IN BENANTI THE COURT
HELD INADMISSIBLE IN A FEDERAL TRIAL COMMUNICATIONS THAT HAD BEEN
INTERCEPTED BY STATE OFFICERS.  /7/  "SECTION 605," THE COURT SAID,
"CONTAINS AN EXPRESS, ABSOLUTE PROHIBITION AGAINST THE DIVULGENCE OF
INTERCEPTED COMMUNICATIONS."  355 U.S.,AT 102. 

AFTER THE BENANTI DECISION, THEREFORE, THE ONLY REMAINING SUPPORT
FOR SCHWARTZ V. TEXAS, SUPRA, WAS THE HOLDING IN WOLF V. COLORADO,
SUPRA, THAT STATE COURTS, UNLIKE FEDERAL COURTS, WERE FREE TO DECIDE
FOR THEMSELVES WHETHER TO CONDONE VIOLATIONS OF FEDERAL LAW BY
ACCEPTING THE PRODUCTS OF SUCH VIOLATIONS AS EVIDENCE.  THAT DOCTRINAL
UNDERPINNING OF THE SCHWARTZ DECISION WAS, OF COURSE, COMPLETELY
REMOVED BY MAPP V. OHIO, 367 U.S. 643, WHICH OVERRULED WOLF AND
SQUARELY HELD THAT EVIDENCE OBTAINED BY STATE OFFICERS IN AN
UNREASONABLE SEARCH IS INADMISSIBLE IN A STATE CRIMINAL TRIAL. 

IN VIEW OF THE NARDONE AND BENANTI DECISIONS, /8/  THE DOCTRINE OF
SCHWARTZ V. TEXAS CANNOT SURVIVE THE DEMISE OF WOLF V. COLORADO, SUPRA.
IN THE MAPP CASE, THE COURT IN OVERRULING WOLF IMPOSED A JUDICIALLY
DEVISED EXCLUSIONARY RULE IN ORDER TO INSURE THAT A STATE COULD NOT
ADOPT RULES OF EVIDENCE CALCULATED TO PERMIT THE INVASION OF RIGHTS
PROTECTED BY FEDERAL ORGANIC LAW.  IN THE PRESENT CASE THE FEDERAL LAW
ITSELF EXPLICITLY PROTECTS INTERCEPTED COMMUNICATIONS FROM DIVULGENCE,
IN A COURT OR ANY OTHER PLACE. 

BUT THE DECISION WE REACH TODAY IS NOT BASED UPON LANGUAGE AND
DOCTRINAL SYMMETRY ALONE.  IT IS BUTTRESSED AS WELL BY THE "IMPERATIVE
OF JUDICIAL INTEGRITY."  ELKINS V. UNITED STATES, 364 U.S. 206, 222. 
/9/  UNDER OUR CONSTITUTION NO COURT, STATE OR FEDERAL, MAY SERVE AS AN
ACCOMPLICE IN THE WILLFUL TRANSGRESSION OF "THE LAWS OF THE UNITED
STATES," LAWS BY WHICH "THE JUDGES IN EVERY STATE (ARE) BOUND . . . . "
/10/ 

FINALLY, OUR DECISION TODAY IS COUNSELED BY EXPERIENCE.  THE HOPE
WAS EXPRESSED IN SCHWARTZ V. TEXAS THAT "(ENFORCEMENT OF THE STATUTORY
PROHIBITION IN SEC. 605 CAN BE ACHIEVED UNDER THE PENAL PROVISIONS" OF
THE COMMUNICATIONS ACT.  344 U.S.,AT 201.  /11/  THAT HAS PROVED TO BE
A VAIN HOPE.  RESEARCH HAS FAILED TO UNCOVER A SINGLE REPORTED
PROSECUTION OF A LAW ENFORCEMENT OFFICER FOR VIOLATION OF SEC. 605
SINCE THE STATUTE WAS ENACTED.  /12/  WE CONCLUDE, AS WE CONCLUDED IN
ELKINS AND IN MAPP, THAT NOTHING SHORT OF MANDATORY EXCLUSION OF THE
ILLEGAL EVIDENCE WILL COMPEL RESPECT FOR THE FEDERAL LAW "IN THE ONLY
EFFECTIVELY AVAILABLE WAY-- BY REMOVING THE INCENTIVE TO DISREGARD
IT."  ELKINS V. UNITED STATES, 364 U.S.,AT 217. 

              REVERSED. 

/1/  LEE V. STATE, 191 SO.2D 84. 

/2/  389 U.S. 1033.  ISSUES UNDER THE FOURTH AND FOURTEENTH
AMENDMENTS WERE ALSO PRESENTED IN THE PETITION FOR CERTIORARI.  WE DO
NOT REACH THOSE ISSUES. 

/3/  THE RECORD DOES NOT SHOW HOW OR WHY THIS HOUSE WAS MADE
AVAILABLE TO THE ORLANDO POLICE. 

/4/  191 SO.2D, AT 85.  THE COURT WENT ON TO SAY THAT "WIRETAPPING
IS ILLEGAL IN FLORIDA" BY REASON OF THE FLORIDA CONSTITUTION.  HOWEVER,
THE COURT FOUND THAT WHAT THE POLICE DID IN THIS CASE DID NOT AMOUNT TO
"WIRETAPPING" WITHIN THE SCOPE OF THE STATE CONSTITUTIONAL
PROHIBITION.  THE COURT BASED ITS CONCLUSIONS UPON SEVERAL PREVIOUS
FLORIDA CASES:  PEREZ V. STATE, 81 SO.2D 201; WILLIAMS V. STATE, 109
SO.2D 379; GRIFFITH V. STATE, 111 SO.2D 282; BARBER V. STATE, 172 SO.2D
857. 

/5/  A PARTY-LINE USER'S PRIVACY IS OBVIOUSLY VULNERABLE, BUT IT
DOES NOT NECESSARILY FOLLOW THAT HIS TELEPHONE CONVERSATIONS ARE
COMPLETELY UNPROTECTED BY SEC. 605.  IN MANY AREAS OF THE COUNTRY
PRIVATE TELEPHONE LINES ARE NOT AVAILABLE; IN OTHER AREAS THEY ARE
AVAILABLE ONLY AT HIGHER RATES THAN PARTY LINES.  THERE IS NOTHING IN
THE LANGUAGE OR HISTORY OF SEC. 605 TO INDICATE THAT CONGRESS MEANT TO
AFFORD ANY LESS PROTECTION TO THOSE WHO, BY VIRTUE OF GEOGRAPHY OR
FINANCIAL HARDSHIP, MUST USE PARTY-LINE TELEPHONES.     /6/  SECTION
605 PROHIBITS INTERCEPTION AND DIVULGENCE OF INTRASTATE AS WELL AS
INTERSTATE COMMUNICATIONS.  WEISS V. UNITED STATES, 308 U.S. 321. 

/7/  IT WAS NOT UNTIL TWO TERMS LATER, IN ELKINS V. UNITED STATES,
364 U.S. 206, THAT THE COURT REPUDIATED THE "SILVER PLATTER DOCTRINE,"
UNDER WHICH EVIDENCE OBTAINED BY STATE OFFICERS IN VIOLATION OF THE
FOURTH AND FOURTEENTH AMENDMENTS COULD BE RECEIVED AS EVIDENCE IN
FEDERAL COURTS. 

/8/  SEE ALSO THE SECOND NORDONE CASE, NARDONE V. UNITED STATES, 308
U.S. 338. 

/9/  "(IT CANNOT BE LAWFUL TO AUTHORIZE WHAT IS AN ILLEGAL ACT . . .
(IF THE POLICE OFFICER VIOLATES THE FEDERAL STATUTE BY TAPPING WIRES
NOTWITHSTANDING A WARRANT ISSUED OUT OF THIS COURT PURSUANT TO NEW YORK
LAW-- IF THAT ACT BE ILLEGAL-- THOSE WHO SET THE ACT IN MOTION HAVE
CONDONED IF NOT INSTIGATED ILLEGALITY . . . . (THE WARRANT ITSELF
PARTAKES OF THE BREACH, WILLFUL OR INADVERTENT, OF THE FEDERAL LAW. 
SUCH BREACH MAY NOT FIND SANCTION IN THE ORDERS OF COURTS CHARGED WITH
THE SUPPORT OF THE LAW OF THE LAND AND WITH ENFORCING THAT LAW."  IN RE
TELEPHONE COMMUNICATIONS, 9 MISC.2D 121, 126, 170 N.Y.S.2D 84, 89 (N.Y.
SUP. CT.).  SEE ALSO APPLICATION FOR INTERCEPTION OF TELEPHONE
COMMUNICATIONS, 23 MISC.2D 543, 198 N.Y.S.2D 572 (N.Y. CT. GEN.
SESS.). 

COMPARE JUDGE WATERMAN'S CONCURRING OPINION IN PUGACH V. DOLLINGER,
277 F.2D 739 (DENYING INJUNCTION AGAINST STATE OFFICER FOR VIOLATING
SEC. 605, AFF'D PER CURIAM, 365 U.S. 458: "IT IS THEREFORE PRESUMPTUOUS
TO ASSUME THAT ANY NEW YORK STATE TRIAL JUDGE WILL ACQUIESCE TO THE
COMMISSION OF A CRIME AGAINST THE UNITED STATES IN HIS PRESENCE IN HIS
COURTROOM BY A WITNESS TESTIFYING UNDER OATH."  277 F.2D, AT 745. 

/10/  "(THE LAWS 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."  ART. VI, U.S. CONST. 

/11/  COMPARE WOLF V. COLORADO, 338 U.S. 25, AT 30-31. 

/12/  IN PUGACH V. KLEIN, 193 F.SUPP.  630, A DEFENDANT IN A STATE
CRIMINAL CASE ATTEMPTED UNSUCCESSFULLY TO INITIATE A CRIMINAL
PROSECUTION AGAINST STATE OFFICERS FOR VIOLATIONS OF SEC. 605.  SEE
ALSO SIMONS V. O'CONNOR, 187 F.SUPP.  702 (DENYING DAMAGES IN ACTION
AGAINST STATE OFFICER FOR VIOLATION OF SEC. 605). 

THERE SEEM TO BE ONLY THREE REPORTED PROSECUTIONS OF PRIVATE
INDIVIDUALS FOR VIOLATIONS OF SEC. 605.  UNITED STATES V. GRUBER, 123
F.2D 307; UNITED STATES V. GRIS, 247 F.2D 860; ELKINS V. UNITED STATES,
364 U.S. 206. 

MR. JUSTICE BLACK, DISSENTING. 

IN 1937, NARDONE V. UNITED STATES, 302 U.S. 379, HELD THAT 47 U.S.C.
605 FORBIDS THE INTRODUCTION OF INTERCEPTED AND DIVULGED TELEPHONE
CONVERSATIONS IN FEDERAL COURTS.  IN SCHWARTZ V. TEXAS, 344 U.S. 199
(1952), THIS COURT HELD, HOWEVER, THAT THE SECTION DOES NOT FORBID THE
USE OF SUCH EVIDENCE IN STATE CRIMINAL TRIALS, SAYING:  "(WE DO NOT
BELIEVE THAT CONGRESS INTENDED TO IMPOSE A RULE OF EVIDENCE ON THE
STATE COURTS."  344 U.S.,AT 203.  I THOUGHT THE HOLDING IN SCHWARTZ WAS
CORRECT THEN AND STILL THINK SO.  THE COURT HOLDS, HOWEVER, THAT SEC.
605 NOW COMPELS STATE COURTS TO EXCLUDE SUCH INTERCEPTED TELEPHONE
MESSAGES FROM STATE TRIALS.  THE EFFECT OF THIS HOLDING IS TO OVERRULE
SCHWARTZ V. TEXAS.  THE COURT'S HOLDING IS MADE DESPITE THE FACT THAT
CONGRESS ITSELF HAS NOT CHANGED THE SECTION.  NOR DOES MAPP V. OHIO,
367 U.S.643 (1961), UNDERMINE SCHWARTZ AS THE COURT INTIMATES, FOR IN
SCHWARTZ WE DEALT, AS WE DO HERE, WITH CONDUCT THAT VIOLATES ONLY A
FEDERAL STATUTE AND SO DESERVES ONLY THE SANCTIONS CONTEMPLATED BY THAT
STATUTE.  THE COMMUNICATIONS ACT EXPLICITLY PROVIDES FOR PENAL
SANCTIONS, 47 U.S.C. 501, AND SOME CIVIL REMEDIES MIGHT BE IMPLIED AS A
MATTER OF FEDERAL LAW, CF. J. I. CASE CO. V. BORAK, 377 U.S. 426
(1964).  BUT THE CREATION BY STATUTE OF A FEDERAL SUBSTANTIVE RIGHT
DOES NOT MEAN THAT THE STATES ARE REQUIRED BY THE SUPREMACY CLAUSE TO
GIVE EVERY PROCEDURAL TRIAL REMEDY AFFORDED BY FEDERAL COURTS OR THAT
FAILURE TO AFFORD SUCH REMEDIES RENDERS THE STATE "AN ACCOMPLICE IN THE
WILLFUL TRANSGRESSION OF 'THE LAWS OF THE UNITED STATES.'"  ANTE, AT
386. 

I THINK IT WOULD BE MORE APPROPRIATE FOR THE COURT TO LEAVE THIS JOB
OR REWRITING SEC. 605 TO THE CONGRESS.  WAITING FOR CONGRESS TO REWRITE
ITS LAW, HOWEVER, IS TOO SLOW FOR THE COURT IN THIS DAY OF THE RAPID
CREATION OF NEW JUDICIAL RULES, MANY OF WHICH INEVITABLY TEND TO MAKE
CONVICTION OF CRIMINALS MORE DIFFICULT.  I CANNOT AGREE THAT THERE IS
THE SLIGHTEST JUSTIFICATION FOR OVERRULING SCHWARTZ AND WOULD AFFIRM
THESE FLORIDA GAMBLING CONVICTIONS. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

CONGRESS HAS AMPLE POWER TO PROSCRIBE ANY PARTICULAR USE OF
INTERCEPTED TELEPHONE CONVERSATIONS.  THE QUESTION HERE IS SIMPLY
WHETHER SEC. 605 OF THE COMMUNICATIONS ACT PROSCRIBES BASING STATE
CRIMINAL CONVICTIONS ON SUCH INTERCEPTIONS.  THIS STATUTORY QUESTION
DOES NOT INVOLVE ANY CONSTITUTIONAL EXCLUSIONARY RULE, CF. MAPP V.
OHIO, 367 U.S. 643, OR THE SUPERVISORY POWER OF THIS COURT OVER THE
LOWER FEDERAL COURTS, CF. WEEKS V. UNITED STATES, 232 U.S. 383. 

MORE THAN 15 YEARS AGO, IN SCHWARTZ V. TEXAS, 344 U.S. 199, THIS
COURT DECIDED THAT SEC. 605 DID NOT RENDER STATE CONVICTIONS BASED ON
SUCH INTERCEPTIONS INVALID.  ALTHOUGH ARGUMENTS CAN BE MADE THAT THIS
DECISION WAS INCORRECT, THE MATTER IS HARDLY WITHOUT DIFFICULTY.  IT IS
NOT AT ALL OBVIOUS THAT A STATUTE WHICH BY ITS TERMS PROHIBITS ONLY
INTERCEPTION AND DIVULGENCE OF CONVERSATIONS, MEANT ALSO TO PROHIBIT
STATE-COURT RELIANCE ON THE PERFECTLY PROBATIVE EVIDENCE GAINED
THEREBY.  /1/ 

IT DISSERVES THE PROPER RELATION BETWEEN THIS COURT AND CONGRESS TO
CHANGE THE LONG-STANDING INTERPRETATION OF A FEDERAL STATUTE IN THE
ABSENCE OF MUCH MORE CONVINCING EVIDENCE THAN IS HERE ADDUCED THAT THE
COURT ORIGINALLY MISTOOK WHAT CONGRESS INTENDED.  THE IMPORTANCE OF THE
PRINCIPLE OF STARE DECISIS OF COURSE VARIES WITH THE NATURE OF THE
QUESTION.  IT IS AT ITS HIGHEST IN A CASE SUCH AS THE PRESENT:
CONGRESS HAS CONSIDERED THE WIRETAPPING PROBLEM MANY TIMES, EACH TIME
AGAINST WHAT IT NATURALLY ASSUMED TO BE A STABLE BACKGROUND OF STATUTE
LAW.  TO VARY THAT BACKGROUND WITH THE INCLINATIONS OF MEMBERS OF THIS
COURT IS TO FRUSTRATE ORDERLY CONGRESSIONAL CONSIDERATION OF STATUTORY
PROBLEMS.  I WOULD THEREFORE ADHERE TO SCHWARZ. 

SINCE THE COURT DOES NOT REACH PETITIONERS' FURTHER CONTENTION THAT
THE INTERCEPTION VIOLATED THEIR CONSTITUTIONAL RIGHTS, I AM CONTENT TO
DISSENT FROM THE COURT'S DETERMINATION OF THE STATUTORY QUESTION AND
NOT TO EXPRESS VIEWS THAT WOULD, AT THIS STAGE, BE ACADEMIC. 

/1/  NARDONE V. UNITED STATES, 302 U.S. 379, ESTABLISHED THAT
DIVULGENCE OF INTERCEPTED COMMUNICATIONS IN COURT WAS A VIOLATION OF
SEC. 605.  THE COURT WENT ON TO HOLD THAT A FEDERAL CONVICTION
RESULTING FROM SUCH A VIOLATION WAS ITSELF IMPROPER.  THE COURT DID
NOT, HOWEVER, MAKE IT CLEAR WHETHER THE ACT REQUIRED THAT RESULT BY ITS
OWN FORCE OR THE COURT WAS SIMPLY IMPOSING THAT RESULT BY VIRTUE OF ITS
SUPERVISORY POWER. 

EDWARD R. KIRKLAND ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS. 

WALLACE E. ALLBRITTON, ASSISTANT ATTORNEY GENERAL OF FLORIDA, ARGUED
THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS EARL FAIRCLOTH,
ATTORNEY GENERAL. 
..END :






















FORTNIGHTLY CORP. V. UNITED ARTISTS, 392 U.S. 390 


       FORTNIGHTLY CORP. V. UNITED ARTISTS TELEVISION, INC.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 618.  ARGUED MARCH 13, 1968.-- DECIDED JUNE 17, 1968. 


PETITIONER OPERATES COMMUNITY ANTENNA TELEVISION (CATV) SYSTEMS WHICH
RECEIVE, AMPLIFY, AND MODULATE SIGNALS FROM FIVE TELEVISION STATIONS,
CONVERT THEM TO DIFFERENT FREQUENCIES, AND TRANSMIT THEM TO THEIR
SUBSCRIBERS' TELEVISION SETS.  PETITIONER DOES NOT EDIT THE PROGRAMS OR
ORIGINATE ANY PROGRAMS OF ITS OWN.  RESPONDENT, WHICH OWNS COPYRIGHTS
ON SEVERAL MOTION PICTURES, HAD LICENSED THE FIVE TELEVISION STATIONS
TO BROADCAST CERTAIN OF THESE FILMS.  THE LICENSES DID NOT AUTHORIZE
CARRIAGE OF THE BROADCASTS BY CATV, AND IN SOME INSTANCES SPECIFICALLY
PROHIBITED SUCH CARRIAGE.  RESPONDENT SUED PETITIONER, WHICH HAD NO
COPYRIGHT LICENSE FROM EITHER RESPONDENT OR THE TELEVISION STATIONS,
FOR COPYRIGHT INFRINGEMENT, CLAIMING VIOLATION OF ITS EXCLUSIVE RIGHTS
UNDER SECS. 1(C) AND (D) OF THE COPYRIGHT ACT OF 1909, TO "PERFORM . .
. IN PUBLIC FOR PROFIT" (NONDRAMATIC LITERARY WORKS) AND TO "PERFORM .
. . PUBLICLY" (DRAMATIC WORKS).  PETITIONER MAINTAINED THAT IT DID NOT
"PERFORM" THE COPYRIGHTED WORKS AT ALL.  THE DISTRICT COURT RULED FOR
RESPONDENT ON THE INFRINGEMENT ISSUE, WHICH WAS TRIED SEPARATELY, AND
THE COURT OF APPEALS AFFIRMED.  HELD:  JUDICIAL CONSTRUCTION OF THE
COPYRIGHT ACT, IN THE LIGHT OF DRASTIC TECHNOLOGICAL CHANGES, HAS
TREATED BROADCASTERS AS EXHIBITORS, WHO "PERFORM," AND VIEWERS AS
MEMBERS OF THE AUDIENCE, WHO DO NOT "PERFORM," AND SINCE PETITIONER'S
CATV SYSTEMS BASICALLY DO NO MORE THAN ENHANCE THE VIEWERS' CAPACITY TO
RECEIVE THE BROADCAST SIGNALS, THE CATV SYSTEMS FALL WITHIN THE
CATEGORY OF VIEWERS, AND PETITIONER DOES NOT "PERFORM" THE PROGRAMS
THAT ITS SYSTEMS RECEIVE AND CARRY.  PP. 395-402. 

377 F.2D 872, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, FORTNIGHTLY CORPORATION, OWNS AND OPERATES COMMUNITY
ANTENNA TELEVISION (CATV) SYSTEMS IN CLARKSBURG AND FAIRMONT, WEST
VIRGINIA.  /1/  THERE WERE NO LOCAL TELEVISION BROADCASTING STATIONS IN
THAT IMMEDIATE AREA UNTIL 1957.  NOW THERE ARE TWO, BUT, BECAUSE OF
HILLY TERRAIN, MOST RESIDENTS OF THE AREA CANNOT RECEIVE THE BROADCASTS
OF ANY ADDITIONAL STATIONS BY ORDINARY ROOFTOP ANTENNAS.  SOME OF THE
RESIDENTS HAVE JOINED IN ERECTING LARGER COOPERATIVE ANTENNAS IN ORDER
TO RECEIVE MORE DISTANT STATIONS, BUT A MAJORITY OF THE HOUSEHOLDERS IN
BOTH COMMUNITIES HAVE SOLVE THE PROBLEM BY BECOMING CUSTOMERS OF THE
PETITIONER'S CATV SERVICE.  /2/ 

THE PETITIONER'S SYSTEMS CONSIST OF ANTENNAS LOCATED ON HILLS ABOVE
EACH CITY, WITH CONNECTING COAXIAL CABLES, STRUNG ON UTILITY POLES, TO
CARRY THE SIGNALS RECEIVED BY THE ANTENNAS TO THE HOME TELEVISION SETS
OF INDIVIDUAL SUBSCRIBERS.  THE SYSTEMS CONTAIN EQUIPMENT TO AMPLIFY
AND MODULATE THE SIGNALS RECEIVED, AND TO CONVERT THEM TO DIFFERENT
FREQUENCIES, IN ORDER TO TRANSMIT THE SIGNALS EFFICIENTLY WHILE
MAINTAINING AND IMPROVING THEIR STRENGTH.  /3/ 

DURING 1960, WHEN THIS PROCEEDING BEGAN, THE PETITIONER'S SYSTEMS
PROVIDED CUSTOMERS WITH SIGNALS OF FIVE TELEVISION BROADCASTING
STATIONS, THREE LOCATED IN PITTSBURGH, PENNSYLVANIA; ONE IN
STEUBENVILLE, OHIO; AND ONE IN WHEELING, WEST VIRGINIA.  /4/  THE
DISTANCE BETWEEN THOSE CITIES AND CLARKSBURG AND FAIRMONT RANGES FROM
52 TO 82 MILES.  /5/  THE SYSTEMS CARRIED ALL THE PROGRAMMING OF EACH
OF THE FIVE STATIONS, AND A CUSTOMER COULD CHOOSE ANY OF THE FIVE
PROGRAMS HE WISHED TO VIEW BY SIMPLY TURNING THE KNOB ON HIS OWN
TELEVISION SET.  THE PETITIONER NEITHER EDITED THE PROGRAMS RECEIVED
NOR ORIGINATED ANY PROGRAMS OF ITS OWN.  /6/  THE PETITIONER'S
CUSTOMERS WERE CHARGED A FLAT MONTHLY RATE REGARDLESS OF THE AMOUNT OF
TIME THAT THEIR TELEVISION SETS WERE IN USE.  /7/ 

THE RESPONDENT, UNITED ARTISTS TELEVISION, INC., HOLDS COPYRIGHTS ON
SEVERAL MOTION PICTURES.  DURING THE PERIOD IN SUIT, THE RESPONDENT (OR
ITS PREDECESSOR) GRANTED VARIOUS LICENSES TO EACH OF THE FIVE
TELEVISION STATIONS IN QUESTION TO BROADCAST CERTAIN OF THESE
COPYRIGHTED MOTION PICTURES.  BROADCASTS MADE UNDER THESE LICENSES WERE
RECEIVED BY THE PETITIONER'S CLARKSBURG AND FAIRMONT CATV SYSTEMS AND
CARRIED TO ITS CUSTOMERS.  AT NO TIME DID THE PETITIONER (OR ITS
PREDECESSORS) OBTAIN A LICENSE UNDER THE COPYRIGHTS FROM THE RESPONDENT
OR FROM ANY OF THE FIVE TELEVISION STATIONS.  THE LICENSES GRANTED BY
THE RESPONDENT TO THE FIVE STATIONS DID NOT AUTHORIZE CARRIAGE OF THE
BROADCASTS BY CATV SYSTEMS, AND IN SEVERAL INSTANCES THE LICENSES
SPECIFICALLY PROHIBITED SUCH CARRIAGE. 

THE RESPONDENT SUED THE PETITIONER FOR COPYRIGHT INFRINGEMENT IN A
FEDERAL COURT, ASKING DAMAGES AND INJUNCTIVE RELIEF.  THE ISSUE OF
INFRINGEMENT WAS SEPARATELY TRIED, AND THE COURT RULED IN FAVOR OF THE
RESPONDENT.  255 F.SUPP.  177.  ON INTERLOCUTORY APPEAL UNDER 28 U.S.C.
1292(B), THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  377
F.2D 872.  WE GRANTED CERTIORARI, 389 U.S. 969, TO CONSIDER AN
IMPORTANT QUESTION UNDER THE COPYRIGHT ACT OF 1909, 35 STAT. 1075, AS
AMENDED, 17 U.S.C. 1 ET SEQ. 

THE COPYRIGHT ACT DOES NOT GIVE A COPYRIGHT HOLDER CONTROL OVER ALL
USES OF HIS COPYRIGHTED WORK.  /8/  INSTEAD, SEC. 1 OF THE ACT
ENUMERATES SEVERAL "RIGHTS" THAT ARE MADE "EXCLUSIVE" TO THE HOLDER OF
THE COPYRIGHT.  /9/  IF A PERSON, WITHOUT AUTHORIZATION FROM THE
COPYRIGHT HOLDER, PUTS A COPYRIGHTED WORK TO A USE WITHIN THE SCOPE OF
ONE OF THESE "EXCLUSIVE RIGHTS," HE INFRINGES THE COPYRIGHT.  IF HE
PUTS THE WORK TO A USE NOT ENUMERATED IN SEC. 1, HE DOES NOT INFRINGE. 
/10/  THE RESPONDENT'S CONTENTION IS THAT THE PETITIONER'S CATV SYSTEMS
INFRINGED THE RESPONDENT'S SEC. 1(C) EXCLUSIVE RIGHT TO "PERFORM . . .
IN PUBLIC FOR PROFIT" (NONDRAMATIC LITERARY WORKS) /11/  AND ITS SEC.
1(D) EXCLUSIVE RIGHT TO "PERFORM . . . PUBLICLY" (DRAMATIC WORKS). 
/12/  THE PETITIONER MAINTAINS THAT ITS CATV SYSTEMS DID NOT "PERFORM"
THE COPYRIGHTED WORKS AT ALL.  /13/ 

AT THE OUTSET IT IS CLEAR THAT THE PETITIONER'S SYSTEMS DID NOT
"PERFORM" THE RESPONDENT'S COPYRIGHTED WORKS IN ANY CONVENTIONAL SENSE
OF THAT TERM, /14/  OR IN ANY MANNER ENVISAGED BY THE CONGRESS THAT
ENACTED THE LAW IN 1909.  /15/  BUT OUR INQUIRY CANNOT BE LIMITED TO
ORDINARY MEANING AND LEGISLATIVE HISTORY, FOR THIS IS A STATUTE THAT
WAS DRAFTED LONG BEFORE THE DEVELOPMENT OF THE ELECTRONIC PHENOMENA
WITH WHICH WE DEAL HERE.  /16/  IN 1909 RADIO ITSELF WAS IN ITS INFANCY
AND TELEVISION HAD NOT BEEN INVENTED.  WE MUST READ THE STATUTORY
LANGUAGE OF 60 YEARS AGO IN THE LIGHT OF DRASTIC TECHNOLOGICAL CHANGE. 
/17/ 

THE COURT OF APPEALS THOUGHT THAT THE CONTROLLING QUESTION IN
DECIDING WHETHER THE PETITIONER'S CATV SYSTEMS "PERFORMED" THE
COPYRIGHTED WORKS WAS:  "(HOW MUCH DID THE (PETITIONER) DO TO BRING
ABOUT THE VIEWING AND HEARING OF A COPYRIGHTED WORK?"  377 F.2D, AT
877.  APPLYING THIS TEST, THE COURT FOUND THAT THE PETITIONER DID
"PERFORM" THE PROGRAMS CARRIED BY ITS SYSTEMS.  /18/ BUT MERE
QUANTITATIVE CONTRIBUTION CANNOT BE THE PROPER TEST TO DETERMINE
COPYRIGHT LIABILITY IN THE CONTEXT OF TELEVISION BROADCASTING.  IF IT
WERE, MANY PEOPLE WHO MAKE LARGE CONTRIBUTIONS TO TELEVISION VIEWING
MIGHT FIND THEMSELVES LIABLE FOR COPYRIGHT INFRINGEMENT-- NOT ONLY THE
APARTMENT HOUSE OWNER WHO ERECTS A COMMON ANTENNA FOR HIS TENANTS, BUT
THE SHOPKEEPER WHO SELLS OR RENTS TELEVISION SETS, AND, INDEED, EVERY
TELEVISION SET MANUFACTURER.  RATHER, RESOLUTION OF THE ISSUE BEFORE US
DEPENDS UPON A DETERMINATION OF THE FUNCTION THAT CATV PLAYS IN THE
TOTAL PROCESS OF TELEVISION BROADCASTING AND RECEPTION. 

TELEVISION VIEWING RESULTS FROM COMBINED ACTIVITY BY BROADCASTERS
AND VIEWERS.  BOTH PLAY ACTIVE AND INDISPENSABLE ROLES IN THE PROCESS;
NEITHER IS WHOLLY PASSIVE.  THE BROADCASTER SELECTS AND PROCURES THE
PROGRAM TO BE VIEWED.  HE MAY PRODUCE IT HIMSELF, WHETHER "LIVE" OR
WITH FILM OR TAPE, OR HE MAY OBTAIN IT FROM A NETWORK OR SOME OTHER
SOURCE.  HE THEN CONVERTS THE VISIBLE IMAGES AND AUDIBLE SOUNDS OF THE
PROGRAM INTO ELECTRONIC SIGNALS, /19/  AND BROADCASTS THE SIGNALS AT
RADIO FREQUENCY FOR PUBLIC RECEPTION.  /20/  MEMBERS OF THE PUBLIC, BY
MEANS OF TELEVISION SETS AND ANTENNAS THAT THEY THEMSELVES PROVIDE,
RECEIVE THE BROADCASTER'S SIGNALS AND RECONVERT THEM INTO THE VISIBLE
IMAGES AND AUDIBLE SOUNDS OF THE PROGRAM.  THE EFFECTIVE RANGE OF THE
BROADCAST IS DETERMINED BY THE COMBINED CONTRIBUTION OF THE EQUIPMENT
EMPLOYED BY THE BROADCASTER AND THAT SUPPLIED BY THE VIEWER.  /21/ 

THE TELEVISION BROADCASTER IN ONE SENSE DOES LESS THAN THE EXHIBITOR
OF A MOTION PICTURE OR STAGE PLAY; HE SUPPLIES HIS AUDIENCE NOT WITH
VISIBLE IMAGES BUT ONLY WITH ELECTRONIC SIGNALS.  THE VIEWER CONVERSELY
DOES MORE THAN A MEMBER OF A THEATER AUDIENCE; HE PROVIDES THE
EQUIPMENT TO CONVERT ELECTRONIC SIGNALS INTO AUDIBLE SOUND AND VISIBLE
IMAGES.  DESPITE THESE DEVIATIONS FROM THE CONVENTIONAL SITUATION
CONTEMPLATED BY THE FRAMERS OF THE COPYRIGHT ACT, /22/  BROADCASTERS
HAVE BEEN JUDICIALLY TREATED AS EXHIBITORS, AND VIEWERS AS MEMBERS OF A
THEATER AUDIENCE.  BROADCASTERS PERFORM.  /23/  VIEWERS DO NOT
PERFORM.  /24/  THUS, WHILE BOTH BROADCASTER AND VIEWER PLAY CRUCIAL
ROLES IN THE TOTAL TELEVISION PROCESS, A LINE IS DRAWN BETWEEN THEM. 
ONE IS TREATED AS ACTIVE PERFORMER; THE OTHER, AS PASSIVE BENEFICIARY. 

WHEN CATV IS CONSIDERED IN THIS FRAMEWORK, WE CONCLUDE THAT IT FALLS
ON THE VIEWER'S SIDE OF THE LINE.  /25/  ESSENTIALLY, A CATV SYSTEM NO
MORE THAN ENHANCES THE VIEWER'S CAPACITY TO RECEIVE THE BROADCASTER'S
SIGNALS; IT PROVIDES A WELL-LOCATED ANTENNA WITH AN EFFICIENT
CONNECTION TO THE VIEWER'S TELEVISION SET.  /26/  IT IS TRUE THAT A
CATV SYSTEM PLAYS AN "ACTIVE" ROLE IN MAKING RECEPTION POSSIBLE IN A
GIVEN AREA, BUT SO DO ORDINARY TELEVISION SETS AND ANTENNAS.  CATV
EQUIPMENT IS POWERFUL AND SOPHISTICATED, BUT THE BASIC FUNCTION THE
EQUIPMENT SERVES IS LITTLE DIFFERENT FROM THAT SERVED BY THE EQUIPMENT
GENERALLY FURNISHED BY A TELEVISION VIEWER.  /27/ IF AN INDIVIDUAL
ERECTED AN ANTENNA ON A HILL, STRUNG A CABLE TO HIS HOUSE, AND
INSTALLED THE NECESSARY AMPLIFYING EQUIPMENT, HE WOULD NOT BE
"PERFORMING" THE PROGRAMS HE RECEIVED ON HIS TELEVISION SET.  THE
RESULT WOULD BE NO DIFFERENT IF SEVERAL PEOPLE COMBINED TO ERECT A
COOPERATIVE ANTENNA FOR THE SAME PURPOSE.  THE ONLY DIFFERENCE IN THE
CASE OF CATV IS THAT THE ANTENNA SYSTEM IS ERECTED AND OWNED NOT BY ITS
USERS BUT BY AN ENTREPRENEUR. 

THE FUNCTION OF CATV SYSTEMS HAS LITTLE IN COMMON WITH THE FUNCTION
OF BROADCASTERS.  /28/  CATV SYSTEMS DO NOT IN FACT BROADCAST OR
REBROADCAST.  /29/  BROADCASTERS SELECT THE PROGRAMS TO BE VIEWED; CATV
SYSTEMS SIMPLY CARRY, WITHOUT EDITING, WHATEVER PROGRAMS THEY RECEIVE. 
BROADCASTERS PROCURE PROGRAMS AND PROPAGATE THEM TO THE PUBLIC; CATV
SYSTEMS RECEIVE PROGRAMS THAT HAVE BEEN RELEASED TO THE PUBLIC AND
CARRY THEM BY PRIVATE CHANNELS TO ADDITIONAL VIEWERS.  WE HOLD THAT
CATV OPERATORS, LIKE VIEWERS AND UNLIKE BROADCASTERS, DO NOT PERFORM
THE PROGRAMS THAT THEY RECEIVE AND CARRY.  /30/ 

WE HAVE BEEN INVITED BY THE SOLICITOR GENERAL IN AN AMICUS CURIAE
BRIEF TO RENDER A COMPROMISE DECISION IN THIS CASE THAT WOULD, IT IS
SAID, ACCOMMODATE VARIOUS COMPETING CONSIDERATIONS OF COPYRIGHT,
COMMUNICATIONS, AND ANTITRUST POLICY.  /31/  WE DECLINE THE
INVITATION.  /32/  THAT JOB IS FOR CONGRESS.  /33/  WE TAKE THE
COPYRIGHT ACT OF 1909 AS WE FIND IT.  WITH DUE REGARD TO CHANGING
TECHNOLOGY, WE HOLD THAT THE PETITIONER DID NOT UNDER THAT LAW
"PERFORM" THE RESPONDENT'S COPYRIGHTED WORKS. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE HARLAN TOOK NO PART IN THE DECISION OF THIS CASE. 

/1/  FOR A DISCUSSION OF CATV SYSTEMS GENERALLY, SEE UNITED STATES
V. SOUTHWESTERN CABLE CO., ANTE, AT 161-164. 

/2/  IN 1960, OUT OF 11,442 OCCUPIED HOUSING UNITS IN THE CLARKSBURG
AREA, ABOUT 7,900 SUBSCRIBED TO THE PETITIONER'S CATV SERVICE; OUT OF
9,079 UNITS IN FAIRMONT, ABOUT 5,100 SUBSCRIBED. 

/3/  THE PETITIONER'S SYSTEMS UTILIZED MODULATING EQUIPMENT ONLY
DURING THE PERIOD 1958-1964. 

/4/  SINCE 1960, SOME CHANGES HAVE BEEN MADE IN THE STATIONS CARRIED
BY EACH OF THE PETITIONER'S SYSTEMS.  AS OF MAY 1, 1964, THE CLARKSBURG
SYSTEM WAS CARRYING THE TWO LOCAL STATIONS AND THREE OF THE MORE
DISTANT STATIONS, AND THE FAIRMONT SYSTEM WAS CARRYING ONE LOCAL
STATION AND FOUR OF THE MORE DISTANT STATIONS. 

/5/  CLARKSBURG AND FAIRMONT ARE 18 MILES APART. 

/6/  SOME CATV SYSTEMS, ABOUT 10%, ORIGINATE SOME OF THEIR OWN
PROGRAMS.  WE DO NOT DEAL WITH SUCH SYSTEMS IN THIS OPINION. 

/7/  THE MONTHLY RATE RANGED FROM $3.75 TO $5, AND CUSTOMERS WERE
ALSO CHARGED AN INSTALLATION FEE.  INCREASED CHARGES WERE LEVIED FOR
ADDITIONAL TELEVISION SETS AND FOR COMMERCIAL ESTABLISHMENTS. 

/8/  SEE, E.G., FAWCETT PUBLICATIONS V. ELLIOT PUBLISHING CO., 46
F.SUPP.  717; HAYDEN V. CHALFANT PRESS, INC., 281 F.2D 543, 547-548. 

"THE FUNDAMENTAL (IS) THAT 'USE' IS NOT THE SAME THING AS
'INFRINGEMENT,' THAT USE SHORT OF INFRINGEMENT IS TO BE ENCOURAGED . .
. ."  B. KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 57 (1967). 

/9/  "ANY PERSON ENTITLED THERETO, UPON COMPLYING WITH THE
PROVISIONS OF THIS TITLE, SHALL HAVE THE EXCLUSIVE RIGHT: 

"(A) TO PRINT, REPRINT, PUBLISH, COPY, AND VEND THE COPYRIGHTED
WORK; 

"(B) TO TRANSLATE THE COPYRIGHTED WORK INTO OTHER LANGUAGES OR
DIALECTS, OR MAKE ANY OTHER VERSION THEREOF, IF IT BE A LITERARY WORK;
TO DRAMATIZE IT IF IT BE A NONDRAMATIC WORK; TO CONVERT IT INTO A NOVEL
OR OTHER NONDRAMATIC WORK IF IT BE A DRAMA; TO ARRANGE OR ADAPT IT IF
IT BE A MUSICAL WORK; TO COMPLETE, EXECUTE, AND FINISH IT IF IT BE A
MODEL OR DESIGN FOR A WORK OF ART; 

"(C) TO DELIVER, AUTHORIZE THE DELIVERY OF, READ, OR PRESENT THE
COPYRIGHTED WORK IN PUBLIC FOR PROFIT IF IT BE A LECTURE, SERMON,
ADDRESS OR SIMILAR PRODUCTION, OR OTHER NONDRAMATIC LITERARY WORK; TO
MAKE OR PROCURE THE MAKING OF ANY TRANSCRIPTION OR RECORD THEREOF BY OR
FROM WHICH, IN WHOLE OR IN PART, IT MAY IN ANY MANNER OR BY ANY METHOD
BE EXHIBITED, DELIVERED, PRESENTED, PRODUCED, OR REPRODUCED; AND TO
PLAY OR PERFORM IT IN PUBLIC FOR PROFIT, AND TO EXHIBIT, REPRESENT,
PRODUCE, OR REPRODUCE IT IN ANY MANNER OR BY ANY METHOD WHATSOEVER. 
THE DAMAGES FOR THE INFRINGEMENT BY BROADCAST OF ANY WORK REFERRED TO
IN THIS SUBSECTION SHALL NOT EXCEED THE SUM OF $100 WHERE THE
INFRINGING BROADCASTER SHOWS THAT HE WAS NOT AWARE THAT HE WAS
INFRINGING AND THAT SUCH INFRINGEMENT COULD NOT HAVE BEEN REASONABLY
FORESEEN; AND 

"(D) TO PERFORM OR REPRESENT THE COPYRIGHTED WORK PUBLICLY IF IT BE
A DRAMA, OR IF IT BE A DRAMATIC WORK AND NOT REPRODUCED IN COPIES FOR
SALE, TO VEND ANY MANUSCRIPT OR ANY RECORD WHATSOEVER THEREOF; TO MAKE
OR TO PROCURE THE MAKING OF ANY TRANSCRIPTION OR RECORD THEREOF BY OR
FROM WHICH, IN WHOLE OR IN PART, IT MAY IN ANY MANNER OR BY ANY METHOD
BE EXHIBITED, PERFORMED, REPRESENTED, PRODUCED, OR REPRODUCED; AND TO
EXHIBIT, PERFORM, REPRESENT, PRODUCE, OR REPRODUCE IT IN ANY MANNER OR
BY ANY METHOD WHATSOEVER; AND     "(E) TO PERFORM THE COPYRIGHTED WORK
PUBLICLY FOR PROFIT IF IT BE A MUSICAL COMPOSITION; AND FOR THE PURPOSE
OF PUBLIC PERFORMANCE FOR PROFIT, AND FOR THE PURPOSES SET FORTH IN
SUBSECTION (A) HEREOF, TO MAKE ANY ARRANGEMENT OR SETTING OF IT OR OF
THE MELODY OF IT IN ANY SYSTEM OF NOTATION OR ANY FORM OF RECORD IN
WHICH THE THOUGHT OF AN AUTHOR MAY BE RECORDED AND FROM WHICH IT MAY BE
READ OR REPRODUCED . . . ."  17 U.S.C. 1.     /10/  THE COPYRIGHT ACT
DOES NOT CONTAIN A DEFINITION OF INFRINGEMENT AS SUCH.  RATHER
INFRINGEMENT IS DELINEATED IN A NEGATIVE FASHION BY THE SEC. 1
ENUMERATION OF RIGHTS EXCLUSIVE TO THE COPYRIGHT HOLDER.  SEE M. NIMMER
COPYRIGHT SEC. 100 (1968). 

/11/  SEE N. 9, SUPRA.  WE DO NOT REACH THE PETITIONER'S CLAIM THAT
THE RESPONDENT'S ANIMATED CARTOONS ARE NOT "LITERARY WORKS." 

/12/  SEE N. 9, SUPRA. 

/13/  THE PETITIONER ALSO CONTENDS THAT IF IT DID "PERFORM" THE
COPYRIGHTED WORKS, IT DID NOT DO SO "IN PUBLIC." 

/14/  CF. WHITE-SMITH MUSIC CO. V. APOLLO CO., 209 U.S. 1. 

/15/  THE LEGISLATIVE HISTORY SHOWS THAT THE ATTENTION OF CONGRESS
WAS DIRECTED TO THE SITUATION WHERE THE DIALOGUE OF A PLAY IS
TRANSCRIBED BY A MEMBER OF THE AUDIENCE, AND THEREAFTER THE PLAY IS
PRODUCED BY ANOTHER PARTY WITH THE AID OF THE TRANSCRIPT.  H.R. REP.
NO. 2222, 60TH CONG., 2D SESS. 4 (1909). 

/16/  "WHILE STATUTES SHOULD NOT BE STRETCHED TO APPLY TO NEW
SITUATIONS NOT FAIRLY WITHIN THEIR SCOPE, THEY SHOULD NOT BE SO
NARROWLY CONSTRUED AS TO PERMIT THEIR EVASION BECAUSE OF CHANGING
HABITS DUE TO NEW INVENTIONS AND DISCOVERIES."  JEROME H. REMICK & CO.
V. AMERICAN AUTOMOBILE ACCESSORIES CO., 5 F.2D 411. 

/17/  A REVISION OF THE 1909 ACT WAS BEGUN IN 1955 WHEN CONGRESS
AUTHORIZED A PROGRAM OF STUDIES BY THE COPYRIGHT OFFICE.  PROGRESS HAS
NOT BEEN RAPID.  THE COPYRIGHT OFFICE ISSUED ITS REPORT IN 1961. 
REGISTER OF COPYRIGHTS, REPORT ON THE GENERAL REVISION OF THE U.S.
COPYRIGHT LAW, HOUSE JUDICIARY COMMITTEE PRINT, 87TH CONG., 1ST SESS.
(1961).  REVISION BILLS WERE INTRODUCED IN THE HOUSE IN THE EIGHTY
EIGHTH CONGRESS AND IN BOTH THE HOUSE AND THE SENATE IN THE EIGHTY
NINTH CONGRESS.  SEE H.R. 11947, 88TH CONG. 2D SESS.; HEARINGS ON H.R.
4347, 5680, 6831, 6835 BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE JUDICIARY
COMMITTEE, 89TH CONG., 1ST SESS. (1965); HEARINGS ON S. 1006 BEFORE THE
SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE
JUDICIARY COMMITTEE, 89TH CONG., 2D SESS. (1966).  H.R. 4347 WAS
REPORTED FAVORABLY BY THE HOUSE JUDICIARY COMMITTEE, H.R. REP. NO.
2237, 89TH CONG., 2D SESS. (1966), BUT NOT ENACTED.  IN THE NINETIETH
CONGRESS REVISION BILLS WERE AGAIN INTRODUCED IN BOTH THE HOUSE (H.R.
2512) AND THE SENATE (S. 597).  THE HOUSE BILL WAS AGAIN REPORTED
FAVORABLY, H.R. REP. NO. 83, 90TH CONG., 1ST SESS. (1967), AND THIS
TIME, AFTER AMENDMENT, PASSED BY THE FULL HOUSE.  113 CONG.REC.  9021. 
THE BILL AS REPORTED CONTAINED A PROVISION DEALING WITH CATV, BUT THE
PROVISION WAS STRUCK FROM THE BILL ON THE HOUSE FLOOR PRIOR TO
ENACTMENT.  SEE N. 33, INFRA.  THE HOUSE AND SENATE BILLS ARE CURRENTLY
PENDING BEFORE THE SENATE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND
COPYRIGHTS. 

/18/  THE COURT FORMULATED AND APPLIED THIS TEST IN THE LIGHT OF
THIS COURT'S DECISION IN BUCK V. JEWELL-LASALLE REALTY CO., 283 U.S.
191.  SEE ALSO SOCIETY OF EUROPEAN STAGE AUTHORS & COMPOSERS V. NEW
YORK HOTEL STATLER CO., 19 F.SUPP.  1.  BUT IN JEWELL-LASALLE, A HOTEL
RECEIVED ON A MASTER RADIO SET AN UNAUTHORIZED BROADCAST OF A
COPYRIGHTED WORK AND TRANSMITTED THAT BROADCAST TO ALL THE PUBLIC AND
PRIVATE ROOMS OF THE HOTEL BY MEANS OF SPEAKERS INSTALLED BY THE HOTEL
IN EACH ROOM.  THE COURT HELD THE HOTEL LIABLE FOR INFRINGEMENT BUT
NOTED THAT THE RESULT MIGHT HAVE DIFFERED IF, AS IN THIS CASE THE
ORIGINAL BROADCAST HAD BEEN AUTHORIZED BY THE COPYRIGHT HOLDER.  283
U.S.,AT 199, N. 5.  THE JEWELL-LASALLE DECISION MUST BE UNDERSTOOD AS
LIMITED TO ITS OWN FACTS.  SEE N. 30, INFRA. 

/19/  IF THE BROADCASTER OBTAINS HIS PROGRAM FROM A NETWORK, HE
RECEIVES THE ELECTRONIC SIGNALS DIRECTLY BY MEANS OF TELEPHONE LINES OR
MICROWAVE. 

/20/  BROADCASTING IS DEFINED UNDER THE COMMUNICATIONS ACT OF 1934
AS "THE DISSEMINATION OF RADIO COMMUNICATIONS INTENDED TO BE RECEIVED
BY THE PUBLIC . . . ."  47 U.S.C. 153(O). 

/21/  SEE HEARINGS ON H.R. 4347, 5680, 6831, 6835 BEFORE
SUBCOMMITTEE NO. 3 OF THE HOUSE JUDICIARY COMMITTEE, 89TH CONG., 1ST
SESS., AT 1312-1318 (1965). 

/22/  SEE N. 15, SUPRA. 

/23/  JEROME H. REMICK & CO. V. AMERICAN AUTOMOBILE ACCESSORIES CO.,
5 F.2D 411 (RADIO BROADCAST); ASSOCIATED MUSIC PUBLISHERS V. DEBS
MEMORIAL RADIO FUND, 141 F.2D 852 (RADIO BROADCAST OF RECORDED
PROGRAM); SELECT THEATRES CORP. V. RONZONI MACARONI CO., 59 U.S.P.Q.
288 (D.C.S.D.N.Y.)  (RADIO BROADCAST OF PROGRAM RECEIVED FROM
NETWORK).  CONGRESS IN EFFECT VALIDATED THESE DECISIONS IN 1952 WHEN IT
ADDED TO SEC. 1(C) A SPECIAL DAMAGES PROVISION FOR "INFRINGEMENT BY
BROADCAST."  66 STAT. 752. 

/24/  "ONE WHO MANUALLY OR BY HUMAN AGENCY MERELY ACTUATES
ELECTRICAL INSTRUMENTALITIES, WHEREBY INAUDIBLE ELEMENTS THAT ARE
OMNIPRESENT IN THE AIR ARE MADE AUDIBLE TO PERSONS WHO ARE WITHIN
HEARING, DOES NOT 'PERFORM' WITHIN THE MEANING OF THE COPYRIGHT LAW." 
BUCK V. DEBAUM, 40 F.2D 734, 735. 

"(THOSE WHO LISTEN DO NOT PERFORM . . . ."  JEROME H. REMICK & CO.
V. GENERAL ELECTRIC CO., 16 F.2D 829. 

/25/  WHILE WE SPEAK IN THIS OPINION GENERALLY OF CATV, WE
NECESSARILY DO SO WITH REFERENCE TO THE FACTS OF THIS CASE. 

/26/  CF. LILLY V. UNITED STATES, 238 F.2D 584, 587: "(THIS
COMMUNITY ANTENNA SERVICE WAS A MERE ADJUNCT OF THE TELEVISION
RECEIVING SETS WITH WHICH IT WAS CONNECTED . . . ." 

/27/  THE DISTRICT COURT'S DECISION WAS BASED IN LARGE PART UPON ITS
ANALYSIS OF THE TECHNICAL ASPECTS OF THE PETITIONER'S SYSTEMS.  THE
SYSTEMS HAVE CONTAINED AT ONE TIME OR ANOTHER SOPHISTICATED EQUIPMENT
TO AMPLIFY, MODULATE, AND CONVERT TO DIFFERENT FREQUENCIES THE SIGNALS
RECEIVED-- OPERATIONS WHICH ALL REQUIRE THE INTRODUCTION OF LOCAL
ENERGY INTO THE SYSTEM.  THE COURT CONCLUDED THAT THE SIGNAL DELIVERED
TO SUBSCRIBERS WAS NOT THE SAME SIGNAL AS THAT INITIALLY RECEIVED OFF
THE AIR.  255 F.SUPP.,AT 190-195.  THE COURT OF APPEALS REFUSED TO
ATTACH SIGNIFICANCE TO THE PARTICULAR TECHNOLOGY OF THE PETITIONER'S
SYSTEMS, 377 F.2D, AT 879, AND WE AGREE.  THE ELECTRONIC OPERATIONS
PERFORMED BY THE PETITIONER'S SYSTEMS ARE THOSE NECESSARY TO TRANSMIT
THE RECEIVED SIGNAL THE LENGTH OF THE CABLE EFFICIENTLY AND DELIVER A
SINGAL OF ADEQUATE STRENGTH.  MOST OF THE SAME OPERATIONS ARE PERFORMED
BY INDIVIDUAL TELEVISION SETS AND ANTENNAS.  SEE HEARINGS ON H.R. 4347
BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE JUDICIARY COMMITTEE, SUPRA, AT
1312-1318.  WHETHER OR NOT THE SIGNALS RECEIVED AND DELIVERED ARE THE
"SAME," THE ENTIRE PROCESS IS VIRTUALLY INSTANTANEOUS, AND ELECTRONIC
"INFORMATION" RECEIVED AND DELIVERED IS IDENTICAL.  255 F.SUPP.,AT
192. 

/28/  CF. INTERMOUNTAIN BROADCASTING & TELEVISION CORP. V. IDAHO
MICROWAVE, INC., 196 F.SUPP.  315, 325: 

"(BROADCASTERS) AND (CATV SYSTEMS) ARE NOT ENGAGED IN THE SAME KIND
OF BUSINESS.  THEY OPERATE IN DIFFERENT WAYS FOR DIFFERENT PURPOSES. 

"(BROADCASTERS) ARE IN THE BUSINESS OF SELLING THEIR BROADCASTING
TIME AND FACILITIES TO THE SPONSORS TO WHOM THEY LOOK FOR THEIR
PROFITS.  THEY DO NOT AND CANNOT CHARGE THE PUBLIC FOR THEIR BROADCASTS
WHICH ARE BEAMED DIRECTLY, INDISCRIMINATELY AND WITHOUT CHARGE THROUGH
THE AIR TO ANY AND ALL RECEPTION SETS OF THE PUBLIC AS MAY BE EQUIPPED
TO RECEIVE THEM. 

"(CATV SYSTEMS), ON THE OTHER HAND, HAVE NOTHING TO DO WITH
SPONSORS, PROGRAM CONTENT OR ARRANGEMENT.  THEY SELL COMMUNITY ANTENNA
SERVICE TO A SEGMENT OF THE PUBLIC FOR WHICH (BROADCASTERS') PROGRAMS
WERE INTENDED BUT WHICH IS NOT ABLE, BECAUSE OF LOCATION OR
TOPOGRAPHICAL CONDITION, TO RECEIVE THEM WITHOUT REBROADCAST OR OTHER
RELAY SERVICE BY COMMUNITY ANTENNAE . . . ." 

/29/  CABLE VISION, INC. V. KUTV, INC., 211 F.SUPP.  47, VACATED ON
OTHER GROUNDS, 335 F.2D 348; REPORT AND ORDER ON CATV AND TV REPEATER
SERVICES, 26 F.C.C. 403, 429-430. 

/30/  IT IS SAID IN DISSENT THAT, "OUR MAJOR OBJECT . . . SHOULD BE
TO DO AS LITTLE DAMAGE AS POSSIBLE TO TRADITIONAL COPYRIGHT PRINCIPLES
AND TO BUSINESS RELATIONSHIPS, UNTIL THE CONGRESS LEGISLATES . . . ." 
POST, AT 404.  BUT EXISTING "BUSINESS RELATIONSHIPS" WOULD HARDLY BE
PRESERVED BY EXTENDING A QUESTIONABLE 35-YEAR-OLD DECISION THAT IN
ACTUAL PRACTICE HAS NOT BEEN APPLIED OUTSIDE ITS OWN FACTUAL CONTEXT,
POST, AT 405, N. 3, SO AS RETROACTIVELY TO IMPOSE COPYRIGHT LIABILITY
WHERE IT HAS NEVER BEEN ACKNOWLEDGED TO EXIST BEFORE.  SEE N. 18,
SUPRA. 

/31/  COMPARE, E.G., NOTE, CATV AND COPYRIGHT LIABILITY, 80
HARV.L.REV.  1514 (1967); NOTE, CATV AND COPYRIGHT LIABILITY:  ON A
CLEAR DAY YOU CAN SEE FOREVER, 52 VA.L.REV.  1505 (1966); B. KAPLAN, AN
UNHURRIED VIEW OF COPYRIGHT 104-106 (1967); STATEMENT OF THEN ACTING
ASSISTANT ATTORNEY GENERAL (ANTITRUST DIVISION) ZIMMERMAN, HEARINGS ON
S. 1006 BEFORE THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS
OF THE SENATE JUDICIARY COMMITTEE, 89TH CONG., 2D SESS., AT 211-219
(1966). 

/32/  THE SOLICITOR GENERAL WOULD HAVE US HOLD THAT CATV SYSTEMS DO
PERFORM THE PROGRAMS THEY CARRY, BUT HE WOULD HAVE US "IMPLY" A LICENSE
FOR THE CATV "PERFORMANCES."  THIS "IMPLIED IN LAW" LICENSE WOULD NOT
COVER ALL CATV ACTIVITY BUT ONLY THOSE INSTANCES IN WHICH A CATV SYSTEM
OPERATES WITHIN THE "GRADE B CONTOUR" OF THE BROADCASTING STATION WHOSE
SIGNAL IT CARRIES.  THE GRADE B CONTOUR IS A THEORETICAL FCC CONCEPT
DEFINED AS THE OUTER LINE ALONG WHICH RECEPTION OF ACCEPTABLE QUALITY
CAN BE EXPECTED AT LEAST 90% OF THE TIME AT THE BEST 50% OF LOCATIONS. 
SIXTH REPORT AND ORDER, 17 FED.REG.  3905, 3915.  SINCE WE HOLD THAT
THE PETITIONER'S SYSTEMS DID NOT PERFORM COPYRIGHTED WORKS, WE DO NOT
REACH THE QUESTION OF IMPLIED LICENSE. 

/33/  THE COPYRIGHT REVISION BILL RECENTLY PASSED BY THE HOUSE, SEE
N. 17, SUPRA, ORIGINALLY CONTAINED A DETAILED AND SOMEWHAT COMPLEX
PROVISION COVERING CATV.  H.R. 2512, 90TH CONG., 1ST SESS., SEC. 111. 
CONGRESSMAN POFF DESCRIBED THE BILL IN TERMS OF ITS EFFECT ON THE
DISTRICT COURT'S DECISION IN THE PRESENT CASE: 

"BY, IN EFFECT, REPEALING THE COURT DECISION WHICH WOULD IMPOSE FULL
COPYRIGHT LIABILITY ON ALL CATV'S IN ALL SITUATIONS, THE COMMITTEE
RECOMMENDS H.R. 2512, WHICH WOULD EXEMPT THEM IN SOME SITUATIONS, MAKE
THEM FULLY LIABLE IN SOME, AND PROVIDE LIMITED LIABILITY IN OTHERS." 
113 CONG.REC.  8588.  SEE H.R. REP. NO. 83, 90TH CONG., 1ST SESS., 6-7,
48-59 (1967).  ON THE HOUSE FLOOR THE CATV PROVISION WAS DELETED IN
ORDER TO REFER THE MATTER TO THE INTERSTATE AND FOREIGN COMMERCE
COMMITTEE, WHICH HAS JURISDICTION OVER COMMUNICATIONS.  113 CONG. 8598
8601, 8611-8613, 8618-8622, 8990-8992.  IN URGING DELETION OF THE CATV
PROVISION, CONGRESSMAN MOORE SAID: "(WHAT WE SEEK TO DO IN THIS
LEGISLATION IS CONTROL CATV BY COPYRIGHT.  I SAY THAT IS WRONG.  I FEEL
IF THERE IS TO BE SUPERVISION OF THIS FAST-GROWING AREA OF NEWS MEDIA
AND COMMUNICATIONS MEDIA, IT SHOULD LEGITIMATELY COME TO THIS BODY FROM
THE LEGISLATIVE COMMITTEE THAT HAS DIRECT JURISDICTION OVER THE SAME. 

" . . . THIS BILL AND THE DEVICES USED TO EFFECT COMMUNICATIONS
POLICY ARE NOT PROPER FUNCTIONS OF COPYRIGHT . . . ."  113 CONG.REC. 
8599. 

MR. JUSTICE FORTAS, DISSENTING. 

THIS CASE CALLS NOT FOR THE JUDGMENT OF SOLOMON BUT FOR THE
DEXTERITY OF HOUDINI.  WE ARE HERE ASKED TO CONSIDER WHETHER AND HOW A
TECHNICAL, COMPLEX, AND SPECIFIC ACT OF CONGRESS, THE COPYRIGHT ACT,
WHICH WAS ENACTED IN 1909, APPLIES TO ONE OF THE RECENT PRODUCTS OF
SCIENTIFIC AND PROMOTIONAL GENIUS, CATV.  THE OPERATIONS OF CATV
SYSTEMS ARE BASED UPON THE USE OF OTHER PEOPLE'S PROPERTY.  THE ISSUE
HERE IS WHETHER, FOR THIS USE, THE OWNER OF COPYRIGHTED MATERIAL SHOULD
BE COMPENSATED.  FROM A TECHNICAL STANDPOINT THE QUESTION-- OR AT LEAST
ONE IMPORTANT QUESTION-- IS WHETHER THE USE CONSTITUTES A "PERFORMANCE"
OF THE COPYRIGHTED MATERIAL WITHIN THE MEANING OF SEC. 1(C) OF THE
COPYRIGHT ACT, 17 U.S.C. 1(C).  BUT IT IS AN UNDERSTATEMENT TO SAY THAT
THE COPYRIGHT ACT, INCLUDING THE CONCEPT OF A "PERFORMANCE," WAS NOT
CREATED WITH THE DEVELOPMENT OF CATV IN MIND.  THE NOVELTY OF THE USE,
INCIDENT TO THE NOVELTY OF THE NEW TECHNOLOGY, RESULTS IN A BAFFLING
PROBLEM.  APPLYING THE NORMAL JURISPRUDENTIAL TOOLS-- THE WORDS OF THE
ACT, LEGISLATIVE HISTORY, AND PRECEDENT-- TO THE FACTS OF THE CASE IS
LIKE TRYING TO REPAIR A TELEVISION SET WITH A MALLET.  AND NO AID MAY
BE DERIVED FROM THE RECENT ATTEMPTS OF CONGRESS TO FORMULATE SPECIAL
COPYRIGHT RULES FOR CATV-- FOR CONGRESS HAS VACILLATED IN ITS
APPROACH.  /1/ 

AT THE SAME TIME, THE IMPLICATIONS OF ANY DECISION WE MAY REACH AS
TO THE COPYRIGHT LIABILITY OF CATV ARE VERY GREAT.  ON THE ONE HAND, IT
IS DARKLY PREDICTED THAT THE IMPOSITION OF FULL LIABILITY UPON ALL CATV
OPERATIONS COULD RESULT IN THE DEMISE OF THIS NEW, IMPORTANT INSTRUMENT
OF MASS COMMUNICATIONS; OR IN ITS BECOMING A TOOL OF THE POWERFUL
NETWORKS WHICH HOLD A SUBSTANTIAL NUMBER OF COPYRIGHTS ON MATERIALS
USED IN THE TELEVISION INDUSTRY.  ON THE OTHER HAND, IT IS FORESEEN
THAT A DECISION TO THE EFFECT THAT CATV SYSTEMS NEVER INFRINGE THE
COPYRIGHTS OF THE PROGRAMS THEY CARRY WOULD PERMIT SUCH SYSTEMS TO
OVERPOWER LOCAL BROADCASTING STATIONS WHICH MUST PAY, DIRECTLY OR
INDIRECTLY, FOR COPYRIGHT LICENSES AND WITH WHICH CATV IS IN INCREASING
COMPETITION.  /2/     THE VASTNESS OF THE COMPETING CONSIDERATIONS, THE
COMPLEXITY OF ANY CONCEIVABLE EQUITABLE SOLUTION TO THE PROBLEMS POSED,
AND THE OBVIOUS DESIRABILITY OF ULTIMATELY LEAVING THE SOLUTION TO
CONGRESS INDUCED THE SOLICITOR GENERAL, IN A MEMORANDUM FILED PRIOR TO
ORAL ARGUMENT IN THIS CASE, TO RECOMMEND "THAT THE COURT SHOULD STAY
ITS HAND BECAUSE, IN OUR VIEW, THE MATTER IS NOT SUSCEPTIBLE OF
DEFINITIVE RESOLUTION IN JUDICIAL PROCEEDINGS AND PLENARY CONSIDERATION
HERE IS LIKELY TO DELAY AND PREJUDICE THE ULTIMATE LEGISLATIVE
SOLUTION." 

THAT IS A SPLENDID THOUGHT, BUT UNHAPPILY IT WILL NOT DO.  I AGREE
WITH THE MAJORITY THAT WE MUST PASS ON THE INSTANT CASE.  AN IMPORTANT
LEGAL ISSUE IS INVOLVED.  IMPORTANT ECONOMIC VALUES ARE AT STAKE, AND
IT WOULD BE HAZARDOUS TO ASSUME THAT CONGRESS WILL ACT PROMPTLY,
COMPREHENSIVELY, AND RETROACTIVELY.  BUT THE FACT THAT THE COPYRIGHT
ACT WAS WRITTEN IN A DIFFERENT DAY, FOR DIFFERENT FACTUAL SITUATIONS,
SHOULD LEAD US TO TREAD CAUTIOUSLY HERE.  OUR MAJOR OBJECT, I SUGGEST,
SHOULD BE TO DO AS LITTLE DAMAGE AS POSSIBLE TO TRADITIONAL COPYRIGHT
PRINCIPLES AND TO BUSINESS RELATIONSHIPS, UNTIL THE CONGRESS LEGISLATES
AND RELIEVES THE EMBARRASSMENT WHICH WE AND THE INTERESTED PARTIES
FACE. 

THE OPINION OF THE MAJORITY, IN MY JUDGMENT, DOES NOT HEED THIS
ADMONITION.  IN AN ATTEMPT TO FOSTER THE DEVELOPMENT OF CATV, THE COURT
TODAY ABANDONS THE TEACHINGS OF PRECEDENT, INCLUDING A PRECEDENT OF
THIS COURT (SEE BUCK V. JEWELL-LASALLE REALTY CORP., 283 U.S. 191
(1931); SOCIETY OF EUROPEAN STAGE AUTHORS AND COMPOSERS V. NEW YORK
HOTEL STATLER CO., 19 F.SUPP.  1 (1937)), AS TO THE MEANING OF THE TERM
"PERFORM" IN THE COPYRIGHT ACT.  IT IS NOT OUR GENERAL PRACTICE TO
REVERSE OURSELVES, WITHOUT COMPELLING REASONS TO DO SO, ON MATTERS OF
STATUTORY CONSTRUCTION, ESPECIALLY ON A CONSTRUCTION OF MANY YEARS'
STANDING UNDER WHICH AN ENTIRE INDUSTRY HAS OPERATED.  /3/  YET TODAY'S
DECISION MIGHT NOT BE OBJECTIONABLE, IF THE MAJORITY REPLACED WHAT IT
CONSIDERS AN OUTMODED INTERPRETATION OF THE TERM "PERFORM" WITH A NEW,
EQUALLY CLEAR, AND WORKABLE INTERPRETATION.  IT DOES NOT, HOWEVER, DO
THIS.  IT REMOVES FROM COPYRIGHT LAW AN INTERPRETATION WHICH, THOUGH
PERHAPS NOT ALTOGETHER SATISFACTORY AS AN ANALYTICAL MATTER, /4/  HAS
AT LEAST BEEN SETTLED FOR NEARLY 40 YEARS; AND IT SUBSTITUTES FOR THAT
DISCARDED INTERPRETATION A RULE WHICH I DO NOT BELIEVE IS AN
INTELLIGIBLE GUIDE FOR THE CONSTRUCTION OF THE COPYRIGHT ACT. 
MOREOVER, THE NEW RULE MAY WELL HAVE DISRUPTIVE CONSEQUENCES OUTSIDE
THE AREA OF CATV. 

THE APPROACH MANIFESTED IN THE OPINION OF THE COURT IS DISARMINGLY
SIMPLE.  THE COURT MERELY IDENTIFIES TWO GROUPS IN THE GENERAL FIELD OF
TELEVISION, ONE OF WHICH IT BELIEVES MAY CLEARLY BE LIABLE, AND THE
OTHER CLEARLY NOT LIABLE, FOR COPYRIGHT INFRINGEMENT ON A "PERFORMANCE"
THEORY:  "BROADCASTERS PERFORM.  VIEWERS DO NOT PERFORM."  FROM THIS
PREMISE, THE COURT GOES ON TO HOLD THAT CATV "FALLS ON THE VIEWER'S
SIDE OF THE LINE.  ESSENTIALLY, A CATV SYSTEM NO MORE THAN ENHANCES THE
VIEWER'S CAPACITY TO RECEIVE THE BROADCASTER'S SIGNALS; IT PROVIDES A
WELL-LOCATED ANTENNA WITH AN EFFICIENT CONNECTION TO THE VIEWER'S SET .
. . . CATV EQUIPMENT IS POWERFUL AND SOPHISTICATED, BUT THE BASIC
FUNCTION THE EQUIPMENT SERVES IS LITTLE DIFFERENT FROM THAT SERVED BY
THE EQUIPMENT GENERALLY FURNISHED BY A TELEVISION VIEWER."  ANTE, AT
398-399. 

THE DECISION IN BUCK V. JEWELL-LASALLE, MUST, THE COURT SAYS TODAY,
"BE UNDERSTOOD AS LIMITED TO ITS OWN FACTS."  ANTE, AT 397, N. 18.  IN
BUCK, THE COURT, SPEAKING UNANIMOUSLY THROUGH MR. JUSTICE BRANDEIS,
HELD THAT A HOTEL WHICH RECEIVED A BROADCAST ON A MASTER RADIO SET AND
PIPED THE BROADCAST TO ALL PUBLIC AND PRIVATE ROOMS OF THE HOTEL HAD
"PERFORMED" THE MATERIAL THAT HAD BEEN BROADCAST.  AS I UNDERSTAND THE
CASE, THE HOLDING WAS THAT THE USE OF MECHANICAL EQUIPMENT TO EXTEND A
BROADCAST TO A SIGNIFICANTLY WIDER PUBLIC THAN THE BROADCAST WOULD
OTHERWISE ENJOY CONSTITUTES A "PERFORMANCE" OF THE MATERIAL ORIGINALLY
BROADCAST.  I BELIEVE THIS DECISION STANDS SQUARELY IN THE PATH OF THE
ROUTE WHICH THE MAJORITY TODAY TRAVERSES.  IF A CATV SYSTEM PERFORMS A
FUNCTION "LITTLE DIFFERENT FROM THAT SERVED BY THE EQUIPMENT GENERALLY
FURNISHED BY A TELEVISION VIEWER," AND IF THAT IS TO BE THE TEST, THEN
IT SEEMS TO ME THAT A MASTER RADIO SET ATTACHED BY WIRE TO NUMEROUS
OTHER SETS IN VARIOUS ROOMS OF A HOTEL CANNOT BE DISTINGUISHED.  /5/ 

THE VAGUE "FUNCTIONAL" TEST OF THE MEANING OF THE TERM "PERFORM" IS,
MOREOVER, UNSATISFACTORY.  JUST AS A CATV SYSTEM PERFORMS (ON THE
MAJORITY'S ANALYSIS) THE SAME FUNCTION AS THE ANTENNA OF THE INDIVIDUAL
VIEWER, SO A TELEVISION CAMERA RECORDING A LIVE DRAMA PERFORMS THE SAME
FUNCTION AS THE EYE OF A SPECTATOR WHO IS PRESENT IN THE THEATER.  BOTH
THE CATV AND THE TELEVISION CAMERA "RECEIVE PROGRAMS THAT HAVE BEEN
RELEASED TO THE PUBLIC AND CARRY THEM BY PRIVATE CHANNELS TO ADDITIONAL
VIEWERS."  ANTE, AT 400.  MOREOVER, THE COURT HAS INDULGED IN AN
OVERSIMPLIFICATION OF THE "FUNCTION" OF CATV.  IT MAY BE, INDEED, THAT
INSOFAR AS CATV OPERATIONS ARE LIMITED TO THE GEOGRAPHICAL AREA WHICH
THE LICENSED BROADCASTER (WHOSE SIGNALS THE CATV HAS PICKED UP AND
CARRIED) HAS THE POWER TO COVER, A CATV IS LITTLE MORE THAN A
"COOPERATIVE ANTENNA" EMPLOYED IN ORDER TO AMELIORATE THE IMAGE TO
HOMES WHICH, BECAUSE OF OBSTACLES OTHER THAN MERE DISTANCE, COULD NOT
RECEIVE THEM.  BUT SUCH A DESCRIPTION WILL NOT SUFFICE FOR THE CASE IN
WHICH A CATV HAS PICKED UP THE SIGNALS OF A LICENSED BROADCASTER AND
CARRIED THEM BEYOND THE AREA-- HOWEVER THAT AREA BE DEFINED-- WHICH THE
BROADCASTER NORMALLY SERVES.  IN SUCH A CASE THE CATV IS PERFORMING A
FUNCTION DIFFERENT FROM A SIMPLE ANTENNA FOR, BY HYPOTESIS, THE ANTENNA
COULD NOT PICK UP THE SIGNALS OF THE LICENSED BROADCASTER AND ENABLE
CATV PATRONS TO RECEIVE THEM IN THEIR HOMES. 

BUCK V. JEWELL-LASALLE MAY NOT BE AN ALTOGETHER IDEAL GLOSS ON THE
WORD "PERFORM," BUT IT HAS AT LEAST THE MERIT OF BEING SETTLED LAW.  I
WOULD NOT OVERRULE THAT DECISION IN ORDER TO TAKE CARE OF THIS CASE OR
THE NEEDS OF CATV.  THIS COURT MAY BE WRONG.  THE TASK OF CARING FOR
CATV IS ONE FOR THE CONGRESS.  OUR AX, BEING A RULE OF LAW, MUST CUT
STRAIGHT, SHARP, AND DEEP; AND PERHAPS THIS IS A SITUATION THAT CALLS
FOR THE COMPROMISE OF THEORY AND FOR THE ARCHITECTURAL IMPROVISATION
WHICH ONLY LEGISLATION CAN ACCOMPLISH. 

I SEE NO ALTERNATIVE TO FOLLOWING BUCK AND TO HOLDING THAT A CATV
SYSTEM DOES "PERFORM" THE MATERIAL IT PICKS UP AND CARRIES.  I WOULD,
ACCORDINGLY, AFFIRM THE DECISION BELOW. 

/1/  SEE B. KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 105-106, 127-128
(1967). 

/2/  THE SOLICITOR GENERAL, IN HIS BRIEF ON THE MERITS, RECOMMENDS
THAT WE ADOPT A COMPROMISE APPROACH-- FINDING A LICENSE IMPLIED IN LAW
WITH RESPECT TO SOME CATV OPERATIONS, BUT NOT WITH RESPECT TO OTHERS. 
REGARDLESS OF THE ADVISABILITY OF SUCH AN APPROACH FROM THE STANDPOINT
OF COMMUNICATIONS, ANTITRUST, AND OTHER RELEVANT POLICIES, I DO NOT
BELIEVE IT IS OPEN TO US, IN CONSTRUING THE COPYRIGHT ACT, TO ACCEPT
THE SOLICITOR GENERAL'S PROPOSAL. 

/3/  NIMMER, A LEADING AUTHORITY IN THE COPYRIGHT FIELD, STATES THAT
ALTHOUGH "THE TWO MAJOR PERFORMING RIGHT SOCIETIES, ASCAP AND BMI, DO
NOT CHOOSE TO ENFORCE THE JEWELL-LASALLE DOCTRINE TO ITS LOGICAL
EXTREME IN THAT THEY DO NOT DEMAND PERFORMING LICENSES FROM COMMERCIAL
ESTABLISHMENTS SUCH AS BARS AND RESTAURANTS WHICH OPERATE RADIO OR
TELEVISION SETS FOR THE AMUSEMENT OF THEIR CUSTOMERS, . . . SUCH
DEMANDS ARE MADE OF HOTELS WHICH OPERATE IN THE MANNER OF THE LASALLE
HOTEL."  M. NIMMER, COPYRIGHT SEC. 107.41, N. 204 (1968). 

/4/  SEE M. NIMMER, COPYRIGHT SEC. 107.41 (1968). 

/5/  THE MAJORITY ATTEMPTS TO DIMINISH THE COMPELLING AUTHORITY OF
BUCK V. JEWELL-LASALLE, BY REFERRING TO A VAGUE FOOTNOTE IN THAT
OPINION TO THE EFFECT THAT THE COURT MIGHT NOT HAVE FOUND A
"PERFORMANCE" IF THE ORIGINAL BROADCAST, WHICH WAS PICKED UP BY THE
HOTEL AND BROUGHT TO ITS VARIOUS ROOMS, HAD BEEN AUTHORIZED BY THE
COPYRIGHT HOLDER-- AS IT WAS NOT.  I CANNOT UNDERSTAND THE POINT. 
WHATEVER MIGHT BE THE CASE IN A CONTRIBUTORY INFRINGEMENT ACTION (WHICH
THIS IS NOT), THE INTERPRETATION OF THE TERM "PERFORM" CANNOT LOGICALLY
TURN ON THE QUESTION WHETHER THE MATERIAL THAT IS USED IS LICENSED OR
NOT LICENSED. 

ROBERT C. BARNARD ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE R. MICHAEL DUNCAN AND E. STRATFORD SMITH. 

LOUIS NIZER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WERE GERALD MEYER, GERALD F. PHILLIPS, AND LAWRENCE S. LESSER. 

SOLICITOR GENERAL GRISWOLD FILED A MEMORANDUM FOR THE UNITED STATES,
AS AMICUS CURIAE. 

BRUCE E. LOVETT FILED A BRIEF FOR THE NATIONAL CABLE TELEVISION
ASSOCIATION, INC., AS AMICUS CURIAE, URGING REVERSAL. 

BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY WARNER W.
GARDNER WILLIAM H. DEMPSEY, JR., AND DOUGLAS A. ANELLO FOR THE NATIONAL
ASSOCIATION OF BROADCASTERS; BY AMBROSE DOSKOW FOR BROADCAST MUSIC,
INC.. BY MICHEAL FINKELSTEIN FOR THE ALL-CHANNEL TELEVISION SOCIETY; BY
IRWIN KARP FOR THE AUTHORS LEAGUE OF AMERICA, INC.; BY HERMAN
FINKELSTEIN, SIMON H. RIFKIND, JAY H. TOPKIS, AND PAUL S. ADLER FOR THE
AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS; BY PAUL P.
SELVIN AND WILLIAM BERGER FOR THE WRITERS GUILD OF AMERICA ET AL., AND
BY LEONARD ZISSU AND ABRAHAM MARCUS FOR THE SCREEN COMPOSERS
ASSOCIATION OF THE UNITED STATES
..END :









JONES V. MAYER CO., 392 U.S. 409 


       JONES ET UX. V. ALFRED H. MAYER CO. ET AL.

  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 645.  ARGUED APRIL 1-2, 1968.-- DECIDED JUNE 17, 1968. 


PETITIONERS, ALLEGING THAT RESPONDENTS HAD REFUSED TO SELL THEM A
HOME FOR THE SOLE REASON THAT PETITIONER JOSEPH LEE JONES IS A NEGRO,
FILED A COMPLAINT IN THE DISTRICT COURT, SEEKING INJUNCTIVE AND OTHER
RELIEF.  PETITIONERS RELIED IN PART UPON 42 U.S.C. 1982, WHICH PROVIDES
THAT ALL CITIZENS "SHALL HAVE THE SAME RIGHT, IN EVERY STATE AND
TERRITORY, AS IS ENJOYED BY WHITE CITIZENS THEREOF TO INHERIT,
PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL PROPERTY." 
THE DISTRICT COURT DISMISSED THE COMPLAINT AND THE COURT OF APPEALS
AFFIRMED, CONCLUDING THAT SEC. 1982 APPLIES ONLY TO STATE ACTION AND
DOES NOT REACH PRIVATE REFUSALS TO SELL.  HELD: 

1.  CONGRESS' ENACTMENT OF THE CIVIL RIGHTS ACT OF 1968, CONTAINING
IN TITLE VIII DETAILED HOUSING PROVISIONS APPLICABLE TO A BROAD RANGE
OF DISCRIMINATORY PRACTICES AND ENFORCEABLE BY A COMPLETE ARSENAL OF
FEDERAL AUTHORITY, HAD NO EFFECT UPON THIS LITIGATION OR UPON SEC.
1982, A GENERAL STATUTE LIMITED TO RACIAL DISCRIMINATION IN THE SALE
AND RENTAL OF PROPERTY AND ENFORCEABLE ONLY BY PRIVATE PARTIES ACTING
ON THEIR OWN INITIATIVE.  PP. 413-417. 

2.  SECTION 1982 APPLIES TO ALL RACIAL DISCRIMINATION IN THE SALE OR
RENTAL OF PROPERTY.  PP. 417-437. 

(A) SECTION 1982 HAS PREVIOUSLY BEEN CONSTRUED TO DO MORE THAN GRANT
NEGRO CITIZENS THE GENERAL LEGAL CAPACITY TO BUY AND RENT PROPERTY FREE
OF PROHIBITIONS THAT WHOLLY DISABLE THEM BECAUSE OF THEIR RACE.  HURD
V. HODGE, 334 U.S. 24.  PP. 417-419. 

(B) THE QUESTION WHETHER PURELY PRIVATE DISCRIMINATION UNAIDED BY
ANY GOVERNMENTAL ACTION VIOLATES SEC. 1982 REMAINS ONE OF FIRST
IMPRESSION IN THIS COURT.  HURD V. HODGE, SUPRA; CORRIGAN V. BUCKLEY,
271 U.S. 323; THE CIVIL RIGHTS CASES, 109 U.S. 3; AND VIRGINIA V.
RIVES, 100 U.S. 313, DISTINGUISHED.  PP. 419-420. 

(C) ON ITS FACE, THE LANGUAGE OF SEC. 1982 APPEARS TO PROHIBIT ALL
DISCRIMINATION AGAINST NEGROES IN THE SALE OR RENTAL OF PROPERTY.  PP.
420-422. 

(D) THE LEGISLATURE HISTORY OF SEC. 1982, WHICH WAS PART OF SEC. 1
OF THE CIVIL RIGHTS ACT OF 1866, LIKEWISE SHOWS THAT BOTH HOUSES OF
CONGRESS BELIEVED THAT THEY WERE ENACTING A COMPREHENSIVE STATUTE
FORBIDDING EVERY FORM OF RACIAL DISCRIMINATION AFFECTING THE BASIC
CIVIL RIGHTS ENUMERATED THEREIN-- INCLUDING THE RIGHT TO PURCHASE OR
LEASE PROPERTY-- AND THEREBY SECURING ALL SUCH RIGHTS AGAINST
INTERFERENCE FROM ANY SOURCE WHATEVER, WHETHER GOVERNMENTAL OR
PRIVATE.  PP. 422-436. 

(E) THE SCOPE OF THE 1866 ACT WAS NOT ALTERED WHEN IT WAS RE-ENACTED
IN 1870, TWO YEARS AFTER RATIFICATION OF THE FOURTEENTH AMENDMENT.  PP.
436-437. 

(F) THAT SEC. 1982 LAY PARTIALLY DORMANT FOR MANY YEARS DOES NOT
DIMINISH ITS FORCE TODAY.  P. 437. 

3.  CONGRESS HAS POWER UNDER THE THIRTEENTH AMENDMENT TO DO WHAT 42
U.S.C. 1982 PURPORTS TO DO.  PP. 437-444. 

(A) BECAUSE THE THIRTEENTH AMENDMENT "IS NOT A MERE PROHIBITION OF
STATE LAWS ESTABLISHING OR UPHOLDING SLAVERY, BUT AN ABSOLUTE
DECLARATION THAT SLAVERY OR INVOLUNTARY SERVITUDE SHALL NOT EXIST IN
ANY PART OF THE UNITED STATES," CIVIL RIGHTS CASES, 109 U.S. 3, 20, IT
HAS NEVER BEEN DOUBTED "THAT THE POWER VESTED IN CONGRESS TO ENFORCE
THE ARTICLE BY APPROPRIATE LEGISLATION," IBID., INCLUDES THE POWER TO
ENACT LAWS "OPERATING UPON THE ACTS OF INDIVIDUALS, WHETHER SANCTIONED
BY STATE LEGISLATION OR NOT."  ID., AT 23.  SEE CLYATT V. UNITED
STATES, 197 U.S. 207.  P. 438. 

(B) THE THIRTEENTH AMENDMENT AUTHORIZED CONGRESS TO DO MORE THAN
MERELY DISSOLVE THE LEGAL BOND BY WHICH THE NEGRO SLAVE WAS HELD TO HIS
MASTER; IT GAVE CONGRESS THE POWER RATIONALLY TO DETERMINE WHAT ARE THE
BADGES AND THE INCIDENTS OF SLAVERY AND THE AUTHORITY TO TRANSLATE THAT
DETERMINATION INTO EFFECTIVE LEGISLATION.  PP. 439-440. 

(C) WHATEVER ELSE THEY MAY HAVE ENCOMPASSED, THE BADGES AND
INCIDENTS OF SLAVERY THAT THE THIRTEENTH AMENDMENT EMPOWERED CONGRESS
TO ELIMINATE INCLUDED RESTRAINTS UPON "THOSE FUNDAMENTAL RIGHTS WHICH
ARE THE ESSENCE OF CIVIL FREEDOM, NAMELY, THE SAME RIGHT . . . TO
INHERIT, PURCHASE, LEASE, SELL AND CONVEY PROPERTY, AS IS ENJOYED BY
WHITE CITIZENS."  CIVIL RIGHTS CASES, 109 U.S. 3, 22.  INSOFAR AS
HODGES V. UNITED STATES, 203 U.S. 1, SUGGESTS A CONTRARY HOLDING, IT IS
OVERRULED.  PP. 441-443. 

379 F.2D 33, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CALLED UPON TO DETERMINE THE SCOPE AND THE
CONSTITUTIONALITY OF AN ACT OF CONGRESS, 42 U.S.C. 1982, WHICH PROVIDES
THAT: 

     "ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT,

  IN EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS

  THEREOF TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL

  AND PERSONAL PROPERTY." 

ON SEPTEMBER 2, 1965, THE PETITIONERS FILED A COMPLAINT IN THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, ALLEGING THAT THE
RESPONDENTS HAD REFUSED TO SELL THEM A HOME IN THE PADDOCK WOODS
COMMUNITY OF ST. LOUIS COUNTY FOR THE SOLE REASON THAT PETITIONER
JOSEPH LEE JONES IS A NEGRO.  RELYING IN PART UPON SEC. 1982, THE
PETITIONERS SOUGHT INJUNCTIVE AND OTHER RELIEF.  /1/  THE DISTRICT
COURT SUSTAINED THE RESPONDENTS' MOTION TO DISMISS THE COMPLAINT, /2/
AND THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED, CONCLUDING
THAT SEC. 1982 APPLIES ONLY TO STATE ACTION AND DOES NOT REACH PRIVATE
REFUSALS TO SELL.  /3/  WE GRANTED CERTIORARI TO CONSIDER THE QUESTIONS
THUS PRESENTED.  /4/  FOR THE REASONS THAT FOLLOW, WE REVERSE THE
JUDGMENT OF THE COURT OF APPEALS.  WE HOLD THAT SEC. 1982 BARS ALL
RACIAL DISCRIMINATION, PRIVATE AS WELL AS PUBLIC, IN THE SALE OR RENTAL
OF PROPERTY, AND THAT THE STATUTE, THUS CONSTRUED, IS A VALID EXERCISE
OF THE POWER OF CONGRESS TO ENFORCE THE THIRTEENTH AMENDMENT.  /5/

        I. 

AT THE OUTSET, IT IS IMPORTANT TO MAKE CLEAR PRECISELY WHAT THIS
CASE DOES NOT INVOLVE.  WHATEVER ELSE IT MAY BE, 42 U.S.C. 1982 IS NOT
A COMPREHENSIVE OPEN HOUSING LAW.  IN SHARP CONTRAST TO THE FAIR
HOUSING TITLE (TITLE VIII) OF THE CIVIL RIGHTS ACT OF 1968, PUB. L. 90
284, 82 STAT. 81, THE STATUTE IN THIS CASE DEALS ONLY WITH RACIAL
DISCRIMINATION AND DOES NOT ADDRESS ITSELF TO DISCRIMINATION ON GROUNDS
OF RELIGION OR NATIONAL ORIGIN.  /6/  IT DOES NOT DEAL SPECIFICALLY
WITH DISCRIMINATION IN THE PROVISION OF SERVICES OR FACILITIES IN
CONNECTION WITH THE SALE OR RENTAL OF A DWELLING.  /7/  IT DOES NOT
PROHIBIT ADVERTISING OR OTHER REPRESENTATIONS THAT INDICATE
DISCRIMINATORY PREFERENCES.  /8/  IT DOES NOT REFER EXPLICITLY TO
DISCRIMINATION IN FINANCING ARRANGEMENTS /9/  OR IN THE PROVISION OF
BROKERAGE SERVICES.  /10/  IT DOES NOT EMPOWER A FEDERAL ADMINISTRATIVE
AGENCY TO ASSIST AGGRIEVED PARTIES.  /11/  IT MAKES NO PROVISION FOR
INTERVENTION BY THE ATTORNEY GENERAL.  /12/  AND, ALTHOUGH IT CAN BE
ENFORCED BY INJUNCTION, IT CONTAINS NO PROVISION EXPRESSLY AUTHORIZING
A FEDERAL COURT TO ORDER THE PAYMENT OF DAMAGES.  /14/ 

THUS, ALTHOUGH SEC. 1982 CONTAINS NONE OF THE EXEMPTIONS THAT
CONGRESS INCLUDED IN THE CIVIL RIGHTS ACT OF 1968, /15/  IT WOULD BE A
SERIOUS MISTAKE TO SUPPOSE THAT SEC. 1982 IN ANY WAY DIMINISHES THE
SIGNIFICANCE OF THE LAW RECENTLY ENACTED BY CONGRESS.  INDEED, THE
SENATE SUBCOMMITTEE ON HOUSING AND URBAN AFFAIRS WAS INFORMED IN
HEARINGS HELD AFTER THE COURT OF APPEALS HAD RENDERED ITS DECISION IN
THIS CASE THAT SEC. 1982 MIGHT WELL BE "A PRESENTLY VALID FEDERAL
STATUTORY BAN AGAINST DISCRIMINATION BY PRIVATE PERSONS IN THE SALE OR
LEASE OF REAL PROPERTY."  /16/  THE SUBCOMMITTEE WAS TOLD, HOWEVER,
THAT EVEN IF THIS COURT SHOULD CONSTRUE SEC. 1982, THE EXISTENCE OF
THAT STATUTE WOULD NOT "ELIMINATE THE NEED FOR CONGRESSIONAL ACTION" TO
SPELL OUT "RESPONSIBILITY ON THE PART OF THE FEDERAL GOVERNMENT TO
ENFORCE THE RIGHTS IT PROTECTS."  /17/  THE POINT WAS MADE THAT, IN
LIGHT OF THE MANY DIFFICULTIES CONFRONTED BY PRIVATE LITIGANTS SEEKING
TO ENFORCE SUCH RIGHTS ON THEIR OWN, "LEGISLATION IS NEEDED TO
ESTABLISH FEDERAL MACHINERY FOR ENFORCEMENT OF THE RIGHTS GUARANTEED
UNDER SECTION 1982 OF TITLE 42 EVEN IF THE PLAINTIFFS IN JONES V.
ALFRED H. MAYER COMPANY SHOULD PREVAIL IN THE UNITED STATES SUPREME
COURT."  /18/ 

ON APRIL 10, 1968, REPRESENTATIVE KELLY OF NEW YORK FOCUSED THE
ATTENTION OF THE HOUSE UPON THE PRESENT CASE AND ITS POSSIBLE
SIGNIFICANCE.  SHE DESCRIBED THE BACKGROUND OF THIS LITIGATION, RECITED
THE TEXT OF SEC. 1982, AND THEN ADDED: 

     "WHEN THE ATTORNEY GENERAL WAS ASKED IN COURT ABOUT THE EFFECT

  OF THE OLD LAW (SEC. 1982) AS COMPARED WITH THE PENDING

  LEGISLATION WHICH IS BEING CONSIDERED ON THE HOUSE FLOOR TODAY,

  HE SAID THAT THE SCOPE WAS SOMEWHAT DIFFERENT, THE REMEDIES AND

PROCEDURES WERE DIFFERENT, AND THAT THE NEW LAW WAS STILL QUITE

  NECESSARY."  /19/

LATER THE SAME DAY, THE HOUSE PASSED THE CIVIL RIGHTS ACT OF 1968.  ITS
ENACTMENT HAD NO EFFECT UPON SEC. 1982 /20/  AND NO EFFECT UPON THIS
LITIGATION, /21/  BUT IT UNDERSCORED THE VAST DIFFERENCES BETWEEN, ON
THE ONE HAND, A GENERAL STATUTE APPLICABLE ONLY TO RACIAL
DISCRIMINATION IN THE RENTAL AND SALE OF PROPERTY AND ENFORCEABLE ONLY
BY PRIVATE PARTIES ACTING ON THEIR OWN INITIATIVE, AND, ON THE OTHER
HAND, A DETAILED HOUSING LAW, APPLICABLE TO A BROAD RANGE OF
DISCRIMINATORY PRACTICES AND ENFORCEABLE BY A COMPLETE ARSENAL OF
FEDERAL AUTHORITY.  HAVING NOTED THESE DIFFERENCES, WE TURN TO A
CONSIDERATION OF SEC. 1982 ITSELF. 

        II. 

THIS COURT LAST HAD OCCASION TO CONSIDER THE SCOPE OF 42 U.S.C. 1982
IN 1948, IN HURD V. HODGE, 334 U.S. 24.  THAT CASE AROSE WHEN PROPERTY
OWNERS IN THE DISTRICT OF COLUMBIA SOUGHT TO ENFORCE RACIALLY
RESTRICTIVE COVENANTS AGAINST THE NEGRO PURCHASERS OF SEVERAL HOMES ON
THEIR BLOCK.  A FEDERAL DISTRICT COURT ENFORCED THE RESTRICTIVE
AGREEMENTS BY DECLARING VOID THE DEEDS OF THE NEGRO PURCHASERS.  IT
ENJOINED FURTHER ATTEMPTS TO SELL OR LEASE THEM THE PROPERTIES IN
QUESTION AND DIRECTED THEM TO "REMOVE THEMSELVES AND ALL OF THEIR
PERSONAL BELONGINGS" FROM THE PREMISES WITHIN 60 DAYS.  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED, /22/  AND THIS
COURT GRANTED CERTIORARI /23/  TO DECIDE WHETHER SEC. 1982, THEN SEC.
1978 OF THE REVISED STATUTES OF 1874, BARRED ENFORCEMENT OF THE
RACIALLY RESTRICTIVE AGREEMENTS IN THAT CASE. 

THE AGREEMENTS IN HURD COVERED ONLY TWO-THIRDS OF THE LOTS OF A
SINGLE CITY BLOCK, AND PREVENTING NEGROES FROM BUYING OR RENTING HOMES
IN THAT SPECIFIC AREA WOULD NOT HAVE RENDERED THEM INELIGIBLE TO DO SO
ELSEWHERE IN THE CITY.  THUS, IF SEC. 1982 HAD BEEN THOUGHT TO DO NO
MORE THAN GRANT NEGRO CITIZENS THE LEGAL CAPACITY TO BUY AND RENT
PROPERTY FREE OF PROHIBITIONS THAT WHOLLY DISABLED THEM BECAUSE OF
THEIR RACE, JUDICIAL ENFORCEMENT OF THE RESTRICTIVE COVENANTS AT ISSUE
WOULD NOT HAVE VIOLATED SEC. 1982.  BUT THIS COURT TOOK A BROADER VIEW
OF THE STATUTE.  ALTHOUGH THE COVENANTS COULD HAVE BEEN ENFORCED
WITHOUT DENYING THE GENERAL RIGHT OF NEGROES TO PURCHASE OR LEASE REAL
ESTATE, THE ENFORCEMENT OF THOSE COVENANTS WOULD NONETHELESS HAVE
DENIED THE NEGRO PURCHASERS "THE SAME RIGHT 'AS IS ENJOYED BY WHITE
CITIZENS . . . TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL
AND PERSONAL PROPERTY.'"  334 U.S.,AT 34.  THAT RESULT, THIS COURT
CONCLUDED, WAS PROHIBITED BY SEC. 1982.  TO SUGGEST OTHERWISE, THE
COURT SAID, "IS TO REJECT THE PLAIN MEANING OF LANGUAGE."  IBID. 

HURD V. HODGE, SUPRA, SQUARELY HELD, THEREFORE, THAT A NEGRO CITIZEN
WHO IS DENIED THE OPPORTUNITY TO PURCHASE THE HOME HE WANTS "(SOLELY
BECAUSE OF (HIS) RACE AND COLOR," 334 U.S.,AT 34, HAS SUFFERED THE KIND
OF INJURY THAT SEC. 1982 WAS DESIGNED TO PREVENT.  ACCORD, BUCHANAN V.
WARLEY, 245 U.S. 60, 79; HARMON V. TYLER, 273 U.S. 668; RICHMOND V.
DEANS, 281 U.S. 704.  THE BASIC SOURCE OF THE INJURY IN HURD WAS, OF
COURSE, THE ACTION OF PRIVATE INDIVIDUALS-- WHITE CITIZENS WHO HAD
AGREED TO EXCLUDE NEGROES FROM A RESIDENTIAL AREA.  BUT AN ARM OF THE
GOVERNMENT-- IN THAT CASE, A FEDERAL COURT-- HAD ASSISTED IN THE
ENFORCEMENT OF THAT AGREEMENT.  /24/  THUS HURD V. HODGE, SUPRA, DID
NOT PRESENT THE QUESTION WHETHER PURELY PRIVATE DISCRIMINATION, UNAIDED
BY ANY ACTION ON THE PART OF GOVERNMENT, WOULD VIOLATE SEC. 1982 IF ITS
EFFECT WERE TO DENY A CITIZEN THE RIGHT TO RENT OR BUY PROPERTY SOLELY
BECAUSE OF HIS RACE OR COLOR. 

THE ONLY FEDERAL COURT (OTHER THAN THE COURT OF APPEALS IN THIS
CASE) THAT HAS EVER SQUARELY CONFRONTED THAT QUESTION HELD THAT A
WHOLLY PRIVATE CONSPIRACY AMONG WHITE CITIZENS TO PREVENT A NEGRO FROM
LEASING A FARM VIOLATED SEC. 1982.  UNITED STATES V. MORRIS, 125 F.
322.  IT IS TRUE THAT A DICTUM IN HURD SAID THAT SEC. 1982 WAS DIRECTED
ONLY TOWARD "GOVERNMENTAL ACTION," 334 U.S.,AT 31, BUT NEITHER HURD NOR
ANY OTHER CASE BEFORE OR SINCE HAS PRESENTED THAT PRECISE ISSUE FOR
ADJUDICATION IN THIS COURT.  /25/  TODAY WE FACE THAT ISSUE FOR THE
FIRST TIME. 

        III. 

WE BEGIN WITH THE LANGUAGE OF THE STATUTE ITSELF.  IN PLAIN AND
UNAMBIGUOUS TERMS, SEC. 1982 GRANTS TO ALL CITIZENS, WITHOUT REGARD TO
RACE OR COLOR, "THE SAME RIGHT" TO PURCHASE AND LEASE PROPERTY "AS IS
ENJOYED BY WHITE CITIZENS."  AS THE COURT OF APPEALS IN THIS CASE
EVIDENTLY RECOGNIZED, THAT RIGHT CAN BE IMPAIRED AS EFFECTIVELY BY
"THOSE WHO PLACE PROPERTY ON THE MARKET"  /26/  AS BY THE STATE
ITSELF.  FOR, EVEN IF THE STATE AND ITS AGENTS LEND NO SUPPORT TO THOSE
WHO WISH TO EXCLUDE PERSONS FROM THEIR COMMUNITIES ON RACIAL GROUNDS,
THE FACT REMAINS THAT, WHENEVER PROPERTY "IS PLACED ON THE MARKET FOR
WHITES ONLY, WHITES HAVE A RIGHT DENIED TO NEGROES."  /27/  SO LONG AS
A NEGRO CITIZEN WHO WANTS TO BUY OR RENT A HOME CAN BE TURNED AWAY
SIMPLY BECAUSE HE IS NOT WHITE, HE CANNOT BE SAID TO ENJOY "THE SAME
RIGHT . . . AS IS ENJOYED BY WHITE CITIZENS . . . TO . . . PURCHASE
(AND) LEASE . . . REAL AND PERSONAL PROPERTY."  42 U.S.C. 1982. 

ON ITS FACE, THEREFORE, SEC. 1982 APPEARS TO PROHIBIT ALL
DISCRIMINATIONS AGAINST NEGROES IN THE SALE OR RENTAL OF PROPERTY--
DISCRIMINATION BY PRIVATE OWNERS AS WELL AS DISCRIMINATION BY PUBLIC
AUTHORITIES.  INDEED, EVEN THE RESPONDENTS SEEM TO CONCEDE THAT, IF
SEC. 1982 "MEANS WHAT IT SAYS"-- TO USE THE WORDS OF THE RESPONDENTS'
BRIEF-- THEN IT MUST ENCOMPASS EVERY RACIALLY MOTIVATED REFUSAL TO SELL
OR RENT AND CANNOT BE CONFINED TO OFFICIALLY SANCTIONED SEGREGATION IN
HOUSING.  STRESSING WHAT THEY CONSIDER TO BE THE REVOLUTIONARY
IMPLICATIONS OF SO LITERAL A READING OF SEC. 1982, THE RESPONDENTS
ARGUE THAT CONGRESS CANNOT POSSIBLY HAVE INTENDED ANY SUCH RESULT.  OUR
EXAMINATION OF THE RELEVANT HISTORY, HOWEVER, PERSUADES US THAT
CONGRESS MEANT EXACTLY WHAT IT SAID. 

        IV. 

IN ITS ORIGINAL FORM, 42 U.S.C. 1982 WAS PART OF SEC. 1 OF THE CIVIL
RIGHTS ACT OF 1866.  /28/  THAT SECTION WAS CAST IN SWEEPING TERMS: 

     "BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF

  THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT ALL

  PERSONS BORN IN THE UNITED STATES AND NOT SUBJECT TO ANY FOREIGN

  POWER, . . . ARE HEREBY DECLARED TO BE CITIZENS OF THE UNITED

  STATES; AND SUCH CITIZENS, OF EVERY RACE AND COLOR, WITHOUT

  REGARD TO ANY PREVIOUS CONDITION OF SLAVERY OR INVOLUNTARY

  SERVITUDE, . . . SHALL HAVE THE SAME RIGHT, IN EVERY STATE AND

TERRITORY IN THE UNITED STATES, TO MAKE AND ENFORCE CONTRACTS, TO

  SUE, BE PARTIES, AND GIVE EVIDENCE, TO INHERIT, PURCHASE, LEASE,

  SELL, HOLD, AND CONVEY REAL AND PERSONAL PROPERTY, AND TO FULL

  AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE SECURITY OF

  PERSON AND PROPERTY, AS IS ENJOYED BY WHITE CITIZENS, AND SHALL

  BE SUBJECT TO LIKE PUNISHMENT, PAINS, AND PENALTIES, AND TO NONE

  OTHER, ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CUSTOM, TO THE

CONTRARY NOTWITHSTANDING."  /29/

THE CRUCIAL LANGUAGE FOR OUR PURPOSES WAS THAT WHICH GUARANTEED ALL
CITIZENS "THE SAME RIGHT, IN EVERY STATE AND TERRITORY IN THE UNITED
STATES, . . . TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL
AND PERSONAL PROPERTY . . . AS IS ENJOYED BY WHITE CITIZENS . . . ." 
TO THE CONGRESS THAT PASSED THE CIVIL RIGHTS ACT OF 1866, IT WAS CLEAR
THAT THE RIGHT TO DO THESE THINGS MIGHT BE INFRINGED NOT ONLY BY "STATE
OR LOCAL LAW" BUT ALSO BY "CUSTOM, OR PREJUDICE."  /30/  THUS, WHEN
CONGRESS PROVIDED IN SEC. 1 OF THE CIVIL RIGHTS ACT THAT THE RIGHT TO
PURCHASE AND LEASE PROPERTY WAS TO BE ENJOYED EQUALLY THROUGHOUT THE
UNITED STATES BY NEGRO AND WHITE CITIZENS ALIKE, IT PLAINLY MEANT TO
SECURE THAT RIGHT AGAINST INTERFERENCE FROM ANY SOURCE WHATEVER,
WHETHER GOVERNMENTAL OR PRIVATE.  /31/ 

INDEED, IF SEC. 1 HAD BEEN INTENDED TO GRANT NOTHING MORE THAN AN
IMMUNITY FROM GOVERNMENTAL INTERFERENCE, THEN MUCH OF SEC. 2 WOULD HAVE
MADE NO SENSE AT ALL.  /32/  FOR THAT SECTION, WHICH PROVIDED FINES AND
PRISON TERMS FOR CERTAIN INDIVIDUALS WHO DEPRIVED OTHERS OF RIGHTS
"SECURED OR PROTECTED" BY SEC. 1, WAS CAREFULLY DRAFTED TO EXEMPT
PRIVATE VIOLATIONS OF SEC. 1 FROM THE CRIMINAL SANCTIONS IT IMPOSED. 
/33/  THERE WOULD, OF COURSE, HAVE BEEN NO PRIVATE VIOLATIONS TO EXEMPT
IF THE ONLY "RIGHT" GRANTED BY SEC. 1 HAD BEEN A RIGHT TO BE FREE OF
DISCRIMINATION BY PUBLIC OFFICIALS.  HENCE THE STRUCTURE OF THE 1866
ACT, AS WELL AS ITS LANGUAGE, POINTS TO THE CONCLUSION URGED BY THE
PETITIONERS IN THIS CASE-- THAT SEC. 1 WAS MEANT TO PROHIBIT ALL
RACIALLY MOTIVATED DEPRIVATIONS OF THE RIGHTS ENUMERATED IN THE
STATUTE, ALTHOUGH ONLY THOSE DEPRIVATIONS PERPETRATED "UNDER COLOR OF
LAW" WERE TO BE CRIMINALLY PUNISHABLE UNDER SEC. 2.     IN ATTEMPTING
TO DEMONSTRATE THE CONTRARY, THE RESPONDENTS RELY HEAVILY UPON THE FACT
THAT THE CONGRESS WHICH APPROVED THE 1866 STATUTE WISHED TO ERADICATE
THE RECENTLY ENACTED BLACK CODES-- LAWS WHICH HAD SADDLED NEGROES WITH
"ONEROUS DISABILITIES AND BURDENS, AND CURTAILED THEIR RIGHTS . . . TO
SUCH AN EXTENT THAT THEIR FREEDOM WAS OF LITTLE VALUE . . . ." 
SLAUGHTER-HOUSE CASES, 16 WALL.  36, 70.  /34/  THE RESPONDENTS SUGGEST
THAT THE ONLY EVIL CONGRESS SOUGHT TO ELIMINATE WAS THAT OF RACIALLY
DISCRIMINATORY LAWS IN THE FORMER CONFEDERATE STATES.  BUT THE CIVIL
RIGHTS ACT WAS DRAFTED TO APPLY THROUGHOUT THE COUNTRY, /35/  AND ITS
LANGUAGE WAS FAR BROADER THAN WOULD HAVE BEEN NECESSARY TO STRIKE DOWN
DISCRIMINATORY STATUTES.     THAT BROAD LANGUAGE, WE ARE ASKED TO
BELIEVE, WAS A MERE SLIP OF THE LEGISLATIVE PEN.  WE DISAGREE.  FOR THE
SAME CONGRESS THAT WANTED TO DO AWAY WITH THE BLACK CODES ALSO HAD
BEFORE IT AN IMPOSING BODY OF EVIDENCE POINTING TO THE MISTREATMENT OF
NEGROES BY PRIVATE INDIVIDUALS AND UNOFFICIAL GROUPS, MISTREATMENT
UNRELATED TO ANY HOSTILE STATE LEGISLATION.  "ACCOUNTS IN NEWSPAPERS
NORTH AND SOUTH, FREEDMEN'S BUREAU AND OTHER OFFICIAL DOCUMENTS,
PRIVATE REPORTS AND CORRESPONDENCE WERE ALL ADDUCED" TO SHOW THAT
"PRIVATE OUTRAGE AND ATROCITY" WERE "DAILY INFLICTED ON FREEDMEN . . .
."  /36/  THE CONGRESSIONAL DEBATES ARE REPLETE WITH REFERENCES TO
PRIVATE INJUSTICES AGAINST NEGROES-- REFERENCES TO WHITE EMPLOYERS WHO
REFUSED TO PAY THEIR NEGRO WORKERS, /37/  WHITE PLANTERS WHO AGREED
AMONG THEMSELVES NOT TO HIRE FREED SLAVES WITHOUT THE PERMISSION OF
THEIR FORMER MASTERS, /38/  WHITE CITIZENS WHO ASSAULTED NEGROES /39/
OR WHO COMBINED TO DRIVE THEM OUT OF THEIR COMMUNITIES.  /40/ 

INDEED, ONE OF THE MOST COMPREHENSIVE STUDIES THEN BEFORE CONGRESS
STRESSED THE PREVALENCE OF PRIVATE HOSTILITY TOWARD NEGROES AND THE
NEED TO PROTECT THEM FROM THE RESULTING PERSECUTION AND
DISCRIMINATION.  /41/  THE REPORT NOTED THE EXISTENCE OF LAWS VIRTUALLY
PROHIBITING NEGROES FROM OWNING OR RENTING PROPERTY IN CERTAIN TOWNS,
/42/  BUT DESCRIBED SUCH LAWS AS "MERE ISOLATED CASES," REPRESENTING
"THE LOCAL OUTCROPPINGS OF A SPIRIT . . . FOUND TO PREVAIL EVERYWHERE"
/43/  -- A SPIRIT EXPRESSED, FOR EXAMPLE, BY LAWLESS ACTS OF BRUTALITY
DIRECTED AGAINST NEGROES WHO TRAVELED TO AREAS WHERE THEY WERE NOT
WANTED.  /44/  THE REPORT CONCLUDED THAT, EVEN IF ANTI-NEGRO
LEGISLATION WERE "REPEALED IN ALL THE STATES LATELY IN REBELLION,"
EQUAL TREATMENT FOR THE NEGRO WOULD NOT YET BE SECURED.  /45/ 

IN THIS SETTING, IT WOULD HAVE BEEN STRANGE INDEED IF CONGRESS HAD
VIEWED ITS TASK AS ENCOMPASSING MERELY THE NULLIFICATION OF RACIST LAWS
IN THE FORMER REBEL STATES.  THAT THE CONGRESS WHICH ASSEMBLED IN THE
NATION'S CAPITAL IN DECEMBER 1865 IN FACT HAD A BROADER VISION OF THE
TASK BEFORE IT BECAME CLEAR EARLY IN THE SESSION, WHEN THREE PROPOSALS
TO INVALIDATE DISCRIMINATORY STATE STATUTES WERE REJECTED AS "TOO
NARROWLY CONCEIVED."  /46/  FROM THE OUTSET IT SEEMED CLEAR, AT LEAST
TO SENATOR TRUMBULL OF ILLINOIS, CHAIRMAN OF THE JUDICIARY COMMITTEE,
THAT STRONGER LEGISLATION MIGHT PROVE NECESSARY.  AFTER SENATOR WILSON
OF MASSACHUSETTS HAD INTRODUCED HIS BILL TO STRIKE DOWN ALL RACIALLY
DISCRIMINATORY LAWS IN THE SOUTH, /47/  SENATOR TRUMBULL SAID THIS: 

     "I REPORTED FROM THE JUDICIARY COMMITTEE THE SECOND SECTION OF

  THE (THIRTEENTH AMENDMENT) FOR THE VERY PURPOSE OF CONFERRING

  UPON CONGRESS AUTHORITY TO SEE THAT THE FIRST SECTION WAS CARRIED

  OUT IN GOOD FAITH . . . AND I HOLD THAT UNDER THAT SECOND SECTION

  CONGRESS WILL HAVE THE AUTHORITY, WHEN THE CONSTITUTIONAL

  AMENDMENT IS ADOPTED, NOT ONLY TO PASS THE BILL OF THE SENATOR

  FROM MASSACHUSETTS, BUT A BILL THAT WILL BE MUCH MORE EFFICIENT

  TO PROTECT THE FREEDMAN IN HIS RIGHTS . . . . AND, SIR, WHEN THE

  CONSTITUTIONAL AMENDMENT SHALL HAVE BEEN ADOPTED, IF THE

  INFORMATION FROM THE SOUTH BE THAT THE MEN WHOSE LIBERTIES ARE

  SECURED BY IT ARE DEPRIVED OF THE PRIVILEGE TO GO AND COME WHEN

  THEY PLEASE, TO BUY AND SELL WHEN THEY PLEASE, TO MAKE CONTRACTS

  AND ENFORCE CONTRACTS, I GIVE NOTICE THAT, IF NO ONE ELSE DOES, I

  SHALL INTRODUCE A BILL AND URGE ITS PASSAGE THROUGH CONGRESS THAT

  WILL SECURE TO THOSE MEN EVERY ONE OF THESE RIGHTS:  THEY WOULD

  NOT BE FREEMEN WITHOUT THEM.  IT IS IDLE TO SAY THAT A MAN IS

  FREE WHO CANNOT GO AND COME AT PLEASURE, WHO CANNOT BUY AND SELL,

  WHO CANNOT ENFORCE HIS RIGHTS . . . . (SO) WHEN THE

  CONSTITUTIONAL AMENDMENT IS ADOPTED I TRUST WE MAY PASS A BILL,

  IF THE ACTION OF THE PEOPLE IN THE SOUTHERN STATES SHOULD MAKE IT

NECESSARY, THAT WILL BE MUCH MORE SWEEPING AND EFFICIENT THAN THE

  BILL UNDER CONSIDERATION."  /48/ 

FIVE DAYS LATER, ON DECEMBER 18, 1865, THE SECRETARY OF STATE
OFFICIALLY CERTIFIED THE RATIFICATION OF THE THIRTEENTH AMENDMENT.  THE
NEXT DAY SENATOR TRUMBULL AGAIN ROSE TO SPEAK.  HE HAD DECIDED, HE
SAID, THAT THE "MORE SWEEPING AND EFFICIENT" BILL OF WHICH HE HAD
SPOKEN PREVIOUSLY OUGHT TO BE ENACTED 

"AT AN EARLY DAY FOR THE PURPOSE OF QUIETING APPREHENSIONS IN THE
MINDS OF MANY FRIENDS OF FREEDOM LEST BY LOCAL LEGISLATION OR A
PREVAILING PUBLIC SENTIMENT IN SOME OF THE STATES PERSONS OF THE
AFRICAN RACE SHOULD TO BE OPPRESSED AND IN FACT DEPRIVED OF THEIR
FREEDOM . . . ."  /49/ 

ON JANUARY 5, 1866, SENATOR TRUMBULL INTRODUCED THE BILL HE HAD IN
MIND-- THE BILL WHICH LATER BECAME THE CIVIL RIGHTS ACT OF 1866.  /50/
HE DESCRIBED ITS OBJECTIVES IN TERMS THAT BELIE ANY ATTEMPT TO READ IT
NARROWLY: 

     "MR. PRESIDENT, I REGARD THE BILL TO WHICH THE ATTENTION OF
THE

  SENATE IS NOW CALLED AS THE MOST IMPORTANT MEASURE THAT HAS BEEN

  UNDER ITS CONSIDERATION SINCE THE ADOPTION OF THE CONSTITUTIONAL

  AMENDMENT ABOLISHING SLAVERY.  THAT AMENDMENT DECLARED THAT ALL

  PERSONS IN THE UNITED STATES SHOULD BE FREE.  THIS MEASURE IS

  INTENDED TO GIVE EFFECT TO THAT DECLARATION AND SECURE TO ALL

  PERSONS WITHIN THE UNITED STATES PRACTICAL FREEDOM.  THERE IS

  VERY LITTLE IMPORTANCE IN THE GENERAL DECLARATION OF ABSTRACT

  TRUTHS AND PRINCIPLES UNLESS THEY CAN BE CARRIED INTO EFFECT,

  UNLESS THE PERSONS WHO ARE TO BE AFFECTED BY THEM HAVE SOME MEANS

  OF AVAILING THEMSELVES OF THEIR BENEFITS."  /51/

OF COURSE, SENATOR TRUMBULL'S BILL WOULD, AS HE POINTED OUT, "DESTROY
ALL (THE) DISCRIMINATIONS" EMBODIED IN THE BLACK CODES, /52/  BUT IT
WOULD DO MORE:  IT WOULD AFFIRMATIVELY SECURE FOR ALL MEN, WHATEVER
THEIR RACE OR COLOR, WHAT THE SENATOR CALLED THE "GREAT FUNDAMENTAL
RIGHTS": 

"THE RIGHT TO ACQUIRE PROPERTY, THE RIGHT TO GO AND COME AT
PLEASURE, THE RIGHT TO ENFORCE RIGHTS IN THE COURTS, TO MAKE CONTRACTS,
AND TO INHERIT AND DISPOSE OF PROPERTY."  /53/ AS TO THOSE BASIC CIVIL
RIGHTS, THE SENATOR SAID, THE BILL WOULD "BREAK DOWN ALL
DISCRIMINATIONS BETWEEN BLACK MEN AND WHITE MEN."  /54/ 

THAT THE BILL WOULD INDEED HAVE SO SWEEPING AN EFFECT WAS SEEN AS
ITS GREAT VIRTUE BY ITS FRIENDS /55/  AND AS ITS GREAT DANGER BY ITS
ENEMIES /56/  BUT WAS DISPUTED BY NONE.  OPPONENTS OF THE BILL CHARGED
THAT IT WOULD NOT ONLY REGULATE STATE LAWS BUT WOULD DIRECTLY
"DETERMINE THE PERSONS WHO (WOULD) ENJOY . . . PROPERTY WITHIN THE
STATES,"  /57/  THREATENING THE ABILITY OF WHITE CITIZENS "TO DETERMINE
WHO (WOULD) BE MEMBERS OF (THEIR) COMMUNITIES) . . . ."  /58/  THE
BILL'S ADVOCATES DID NOT DENY THE ACCURACY OF THOSE CHARACTERIZATIONS. 
INSTEAD, THEY DEFENDED THE PROPRIETY OF EMPLOYING FEDERAL AUTHORITY TO
DEAL WITH "THE WHITE MAN . . . (WHO) WOULD INVOKE THE POWER OF LOCAL
PREJUDICE" AGAINST THE NEGRO.  /59/  THUS, WHEN THE SENATE PASSED THE
CIVIL RIGHTS ACT ON FEBRUARY 2, 1866, /60/  IT DID SO FULLY AWARE OF
THE BREADTH OF THE MEASURE IT HAD APPROVED. 

IN THE HOUSE, AS IN THE SENATE, MUCH WAS SAID ABOUT ELIMINATING THE
INFAMOUS BLACK CODES.  /61/  BUT, LIKE THE SENATE, THE HOUSE WAS MOVED
BY A LARGER OBJECTIVE-- THAT OF GIVING REAL CONTENT TO THE FREEDOM
GUARANTEED BY THE THIRTEENTH AMENDMENT.  REPRESENTATIVE THAYER OF
PENNSYLVANIA PUT IT THIS WAY: 

     "(WHEN I VOTED FOR THE AMENDMENT TO ABOLISH SLAVERY . . . I
DID

  NOT SUPPOSE THAT I WAS OFFERING . . . A MERE PAPER GUARANTEE. 

  AND WHEN I VOTED FOR THE SECOND SECTION OF THE AMENDMENT, I FELT

  . . . CERTAIN THAT I HAD . . . GIVEN TO CONGRESS ABILITY TO

  PROTECT . . . THE RIGHTS WHICH THE FIRST SECTION GAVE . . . ." 

 "THE BILL WHICH NOW ENGAGES THE ATTENTION OF THE HOUSE HAS FOR

  ITS OBJECT TO CARRY OUT AND GUARANTY THE REALITY OF THAT GREAT

  MEASURE.  IT IS TO GIVE TO IT PRACTICAL EFFECT AND FORCE.  IT IS

  TO PREVENT THAT GREAT MEASURE FROM REMAINING A DEAD LETTER UPON

  THE CONSTITUTIONAL PAGE OF THIS COUNTRY . . . . THE EVENTS OF THE

  LAST FOUR YEARS . . . HAVE CHANGED (A) LARGE CLASS OF PEOPLE . .

  . FROM A CONDITION OF SLAVERY TO THAT OF FREEDOM.  THE PRACTICAL

QUESTION NOW TO BE DECIDED IS WHETHER THEY SHALL BE IN FACT

 FREEMEN.  IT IS WHETHER THEY SHALL HAVE THE BENEFIT OF THIS GREAT

  CHARTER OF LIBERTY GIVEN TO THEM BY THE AMERICAN PEOPLE."  /62/

REPRESENTATIVE COOK OF ILLINOIS THOUGHT THAT, WITHOUT APPROPRIATE
FEDERAL LEGISLATION, ANY "COMBINATION OF MEN IN (A) NEIGHBORHOOD
(COULD) PREVENT (A NEGRO) FROM HAVING ANY CHANCE" TO ENJOY THOSE
BENEFITS.  /63/  TO CONGRESSMAN COOK AND OTHERS LIKE HIM, IT SEEMED
EVIDENT THAT, WITH RESPECT TO BASIC CIVIL RIGHTS-- INCLUDING THE "RIGHT
TO . . . PURCHASE, LEASE, SELL, HOLD, AND CONVEY . . . PROPERTY,"
CONGRESS MUST PROVIDE THAT "THERE . . . BE NO DISCRIMINATION" ON
GROUNDS OF RACE OR COLOR.  /64/ 

IT THUS APPEARS THAT, WHEN THE HOUSE PASSED THE CIVIL RIGHTS ACT ON
MARCH 13, 1866, /65/  IT DID SO ON THE SAME ASSUMPTION THAT HAD
PREVAILED IN THE SENATE:  IT TOO BELIEVED THAT IT WAS APPROVING A
COMPREHENSIVE STATUTE FORBIDDING ALL RACIAL DISCRIMINATION AFFECTING
THE BASIC CIVIL RIGHTS ENUMERATED IN THE ACT. 

PRESIDENT ANDREW JOHNSON VETOED THE ACT ON MARCH 27, /66/  AND IN
THE BRIEF CONGRESSIONAL DEBATE THAT FOLLOWED, HIS SUPPORTERS
CHARACTERIZED ITS REACH IN ALL-EMBRACING TERMS.  ONE STRESSED THE FACT
THAT SEC. 1 WOULD CONFER "THE RIGHT . . . TO PURCHASE . . . REAL ESTATE
. . . WITHOUT ANY QUALIFICATION AND WITHOUT ANY RESTRICTION WHATEVER .
. . ."  /67/  ANOTHER PREDICTED, AS A COROLLARY, THAT THE ACT WOULD
PRECLUDE PREFERENTIAL TREATMENT FOR WHITE PERSONS IN THE RENTAL OF
HOTEL ROOMS AND IN THE SALE OF CHURCH PEWS.  /68/  THOSE OBSERVATIONS
ELICITED NO REPLY.  ON APRIL 6 THE SENATE, AND ON APRIL 9 THE HOUSE,
OVERRODE THE PRESIDENT'S VETO BY THE REQUISITE MAJORITIES, /69/  AND
THE CIVIL RIGHTS ACT OF 1866 BECAME LAW.  /70/ 

IN THE LIGHT OF THE CONCERNS THAT LED CONGRESS TO ADOPT IT AND THE
CONTENTS OF THE DEBATES THAT PRECEDED ITS PASSAGE, IT IS CLEAR THAT THE
ACT WAS DESIGNED TO DO JUST WHAT ITS TERMS SUGGEST:  TO PROHIBIT ALL
RACIAL DISCIMINATIONS, WHETHER OR NOT UNDER COLOR OF LAW, WITH RESPECT
TO THE RIGHTS ENUMERATED THEREIN-- INCLUDING THE RIGHT TO PURCHASE OR
LEASE PROPERTY. 

NOR WAS THE SCOPE OF THE 1866 ACT ALTERED WHEN IT WAS RE-ENACTED IN
1870, SOME TWO YEARS AFTER THE RATIFICATION OF THE FOURTEENTH
AMENDMENT.  /71/  IT IS QUITE TRUE THAT SOME MEMBERS OF CONGRESS
SUPPORTED THE FOURTEENTH AMENDMENT "IN ORDER TO ELIMINATE DOUBT AS TO
THE CONSTITUTIONAL VALIDITY OF THE CIVIL RIGHTS ACT AS APPLIED TO THE
STATES."  HURD V. HODGE, 334 U.S. 24, 32-33.  BUT IT CERTAINLY DOES NOT
FOLLOW THAT THE ADOPTION OF THE FOURTEENTH AMENDMENT OR THE SUBSEQUENT
READOPTION OF THE CIVIL RIGHTS ACT WERE MEANT SOMEHOW TO LIMIT ITS
APPLICATION TO STATE ACTION.  THE LEGISLATIVE HISTORY FURNISHES NOT THE
SLIGHTEST FACTUAL BASIS FOR ANY SUCH SPECULATION, AND THE CONDITIONS
PREVAILING IN 1870 MAKE IT HIGHLY IMPLAUSIBLE.  FOR BY THAT TIME MOST,
IF NOT ALL, OF THE FORMER CONFEDERATE STATES, THEN UNDER THE CONTROL OF
"RECONSTRUCTED" LEGISLATURES, HAD FORMALLY REPUDIATED RACIAL
DISCRIMINATION, AND THE FOCUS OF CONGRESSIONAL CONCERN HAD CLEARLY
SHIFTED FROM HOSTILE STATUTES TO THE ACTIVITIES OF GROUPS LIKE THE KLU
KLUX KLAN, OPERATING WHOLLY OUTSIDE THE LAW.  /72/ 

AGAINST THIS BACKGROUND, IT WOULD OBVIOUSLY MAKE NO SENSE TO ASSUME,
WITHOUT ANY HISTORICAL SUPPORT WHATEVER, THAT CONGRESS MADE A SILENT
DECISION IN 1870 TO EXEMPT PRIVATE DISCRIMINATION FROM THE OPERATION OF
THE CIVIL RIGHTS ACT OF 1866.  /73/ "THE CARDINAL RULE IS THAT REPEALS
BY IMPLICATION ARE NOT FAVORED."  POSADAS V. NATIONAL CITY BANK, 296
U.S. 497, 503.  ALL CONGRESS SAID IN 1870 WAS THAT THE 1866 LAW "IS
HEREBY RE-ENACTED."  THAT IS ALL CONGRESS MEANT. 

AS WE SAID IN A SOMEWHAT DIFFERENT SETTING TWO TERMS AGO, "WE THINK
THAT HISTORY LEAVES NO DOUBT THAT, IF WE ARE TO GIVE (THE LAW) THE
SCOPE THAT ITS ORIGINS DICTATE, WE MUST ACCORD IT A SWEEP AS BROAD AS
ITS LANGUAGE."  UNITED STATES V. PRICE, 383 U.S. 787, 801.  "WE ARE NOT
AT LIBERTY TO SEEK INGENIOUS ANALYTICAL INSTRUMENTS," IBID., TO CARVE
FROM SEC. 1982 AN EXCEPTION FOR PRIVATE CONDUCT-- EVEN THOUGH ITS
APPLICATION TO SUCH CONDUCT IN THE PRESENT CONTEXT IS WITHOUT
ESTABLISHED PRECEDENT.  AND, AS THE ATTORNEY GENERAL OF THE UNITED
STATES SAID AT THE ORAL ARGUMENT OF THIS CASE, "THE FACT THAT THE
STATUTE LAY PARTIALLY DORMANT FOR MANY YEARS CANNOT BE HELD TO DIMINISH
ITS FORCE TODAY." 

        V. 

THE REMAINING QUESTION IS WHETHER CONGRESS HAS POWER UNDER THE
CONSTITUTION TO DO WHAT SEC. 1982 PURPORTS TO DO:  TO PROHIBIT ALL
RACIAL DISCRIMINATION, PRIVATE AND PUBLIC, IN THE SALE AND RENTAL OF
PROPERTY.  OUR STARTING POINT IS THE THIRTEENTH AMENDMENT, FOR IT WAS
PURSUANT TO THAT CONSTITUTIONAL PROVISION THAT CONGRESS ORIGINALLY
ENACTED WHAT IS NOW SEC. 1982.  THE AMENDMENT CONSISTS OF TWO PARTS. 

     "NEITHER SLAVERY NOR INVOLUNTARY SERVITUDE, EXCEPT AS A

  PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY

  CONVICTED, SHALL EXIST WITHIN THE UNITED STATES, OR ANY PLACE

  SUBJECT TO THEIR JURISDICTION." 

THIS ARTICLE BY APPROPRIATE LEGISLATION." 

AS ITS TEXT REVEALS, THE THIRTEENTH AMENDMENT "IS NOT A MERE
PROHIBITION OF STATE LAWS ESTABLISHING OR UPHOLDING SLAVERY, BUT AN
ABSOLUTE DECLARATION THAT SLAVERY OR INVOLUNTARY SERVITUDE SHALL NOT
EXIST IN ANY PART OF THE UNITED STATES."  CIVIL RIGHTS CASES, 109 U.S.
3, 20.  IT HAS NEVER BEEN DOUBTED, THEREFORE, "THAT THE POWER VESTED IN
CONGRESS TO ENFORCE THE ARTICLE BY APPROPRIATE LEGISLATION,"  IBID.,
INCLUDES THE POWER TO ENACT LAWS "DIRECT AND PRIMARY, OPERATING UPON
THE ACTS OF INDIVIDUALS, WHETHER SANCTIONED BY STATE LEGISLATION OR
NOT."  ID., AT 23.  /74/ 

THUS, THE FACT THAT SEC. 1982 OPERATES UPON THE UNOFFICIAL ACTS OF
PRIVATE INDIVIDUALS, WHETHER OR NOT SANCTIONED BY STATE LAW, PRESENTS
NO CONSTITUTIONAL PROBLEM.  IF CONGRESS HAS POWER UNDER THE THIRTEENTH
AMENDMENT TO ERADICATE CONDITIONS THAT PREVENT NEGROES FROM BUYING AND
RENTING PROPERTY BECAUSE OF THEIR RACE OR COLOR, THEN NO FEDERAL
STATUTE CALCULATED TO ACHIEVE THAT OBJECTIVE CAN BE THOUGHT TO EXCEED
THE CONSTITUTIONAL POWER OF CONGRESS SIMPLY BECAUSE IT REACHES BEYOND
STATE ACTION TO REGULATE THE CONDUCT OF PRIVATE INDIVIDUALS.  THE
CONSTITUTIONAL QUESTION IN THIS CASE, THEREFORE, COMES TO THIS:  DOES
THE AUTHORITY OF CONGRESS TO ENFORCE THE THIRTEENTH AMENDMENT "BY
APPROPRIATE LEGISLATION" INCLUDE THE POWER TO ELIMINATE ALL RACIAL
BARRIERS TO THE ACQUISITION OF REAL AND PERSONAL PROPERTY?  WE THINK
THE ANSWER TO THAT QUESTION IS PLAINLY YES. 

"BY ITS OWN UNAIDED FORCE AND EFFECT," THE THIRTEENTH AMENDMENT
"ABOLISHED SLAVERY, AND ESTABLISHED UNIVERSAL FREEDOM."  CIVIL RIGHTS
CASES, 109 U.S. 3, 20.  WHETHER OR NOT THE AMENDMENT ITSELF DID ANY
MORE THAN THAT-- A QUESTION NOT INVOLVED IN THIS CASE-- IT IS AT LEAST
CLEAR THAT THE ENABLING CLAUSE OF THAT AMENDMENT EMPOWERED CONGRESS TO
DO MUCH MORE.  FOR THAT CLAUSE CLOTHED "CONGRESS WITH POWER TO PASS ALL
LAWS NECESSARY AND PROPER FOR ABOLISHING ALL BADGES AND INCIDENTS OF
SLAVERY IN THE UNITED STATES."  IBID. 

THOSE WHO OPPOSED PASSAGE OF THE CIVIL RIGHTS ACT OF 1866 ARGUED IN
EFFECT THAT THE THIRTEENTH AMENDMENT MERELY AUTHORIZED CONGRESS TO
DISSOLVE THE LEGAL BOND BY WHICH THE NEGRO SLAVE WAS HELD TO HIS
MASTER.  /75/  YET MANY HAD EARLIER OPPOSED THE THIRTEENTH AMENDMENT ON
THE VERY GROUND THAT IT WOULD GIVE CONGRESS VIRTUALLY UNLIMITED POWER
TO ENACT LAWS FOR THE PROTECTION OF NEGROES IN EVERY STATE.  /76/  AND
THE MAJORITY LEADERS IN CONGRESS-- WHO WERE, AFTER ALL, THE AUTHORS OF
THE THIRTEENTH AMENDMENT-- HAD NO DOUBT THAT ITS ENABLING CLAUSE
CONTEMPLATED THE SORT OF POSITIVE LEGISLATION THAT WAS EMBODIED IN THE
1866 CIVIL RIGHTS ACT.  THEIR CHIEF SPOKESMAN, SENATOR TRUMBULL OF
ILLINOIS, THE CHAIRMAN OF THE JUDICIARY COMMITTEE, HAD BROUGHT THE
THIRTEENTH AMENDMENT TO THE FLOOR OF THE SENATE IN 1864.  IN DEFENDING
THE CONSTITUTIONALITY OF THE 1866 ACT, HE ARGUED THAT, IF THE NARROWER
CONSTRUCTION OF THE ENABLING CLAUSE WERE CORRECT, THEN 

"THE TRUMPET OF FREEDOM THAT WE HAVE BEEN BLOWING THROUGHOUT THE
LAND HAS GIVEN AN 'UNCERTAIN SOUND,' AND THE PROMISED FREEDOM IS A
DELUSION.  SUCH WAS NOT THE INTENTION OF CONGRESS, WHICH PROPOSED THE
CONSTITUTIONAL AMENDMENT, NOR IS SUCH THE FAIR MEANING OF THE AMENDMENT
ITSELF . . . . I HAVE NO DOUBT THAT UNDER THIS PROVISION . . . WE MAY
DESTROY ALL THESE DISCRIMINATIONS IN CIVIL RIGHTS AGAINST THE BLACK
MAN; AND IF WE CANNOT, OUR CONSTITUTIONAL AMENDMENT AMOUNTS TO
NOTHING.  IT WAS FOR THAT PURPOSE THAT THE SECOND CLAUSE OF THAT
AMENDMENT WAS ADOPTED, WHICH SAYS THAT CONGRESS SHALL HAVE AUTHORITY,
BY APPROPRIATE LEGISLATION, TO CARRY INTO EFFECT THE ARTICLE
PROHIBITING SLAVERY.  WHO IS TO DECIDE WHAT THAT APPROPRIATE
LEGISLATION IS TO BE?  THE CONGRESS OF THE UNITED STATES; AND IT IS FOR
CONGRESS TO ADOPT SUCH APPROPRIATE LEGISLATION AS IT MAY THINK PROPER,
SO THAT IT BE A MEANS TO ACCOMPLISH THE END."  /77/ 

SURELY SENATOR TRUMBULL WAS RIGHT.  SURELY CONGRESS HAS THE POWER
UNDER THE THIRTEENTH AMENDMENT RATIONALLY TO DETERMINE WHAT ARE THE
BADGES AND THE INCIDENTS OF SLAVERY, AND THE AUTHORITY TO TRANSLATE
THAT DETERMINATION INTO EFFECTIVE LEGISLATION.  NOR CAN WE SAY THAT THE
DETERMINATION CONGRESS HAS MADE IS AN IRRATIONAL ONE.  FOR THIS COURT
RECOGNIZED LONG AGO THAT, WHATEVER ELSE THEY MAY HAVE ENCOMPASSED, THE
BADGES AND INCIDENTS OF SLAVERY-- ITS "BURDENS AND DISABILITIES"--
INCLUDED RESTRAINTS UPON "THOSE FUNDAMENTAL RIGHTS WHICH ARE THE
ESSENCE OF CIVIL FREEDOM, NAMELY, THE SAME RIGHT . . . TO INHERIT,
PURCHASE, LEASE, SELL AND CONVEY PROPERTY, AS IS ENJOYED BY WHITE
CITIZENS."  CIVIL RIGHTS CASES, 109 U.S. 3, 22.  /78/  JUST AS THE
BLACK CODES, ENACTED AFTER THE CIVIL WAR TO RESTRICT THE FREE EXERCISE
OF THOSE RIGHTS, WERE SUBSTITUTES FOR THE SLAVE SYSTEM, SO THE
EXCLUSION OF NEGROES FROM WHITE COMMUNITIES BECAME A SUBSTITUTE FOR THE
BLACK CODES.  AND WHEN RACIAL DISCRIMINATION HERDS MEN INTO GHETTOS AND
MAKES THEIR ABILITY TO BUY PROPERTY TURN ON THE COLOR OF THEIR SKIN,
THEN IT TOO IS A RELIC OF SLAVERY. 

NEGRO CITIZENS, NORTH AND SOUTH, WHO SAW IN THE THIRTEENTH AMENDMENT
A PROMISE OF FREEDOM-- FREEDOM TO "GO AND COME AT PLEASURE"  /79/  AND
TO "BUY AND SELL WHEN THEY PLEASE"  /80/  -- WOULD BE LEFT WITH "A MERE
PAPER GUARANTEE"  /81/  IF CONGRESS WERE POWERLESS TO ASSURE THAT A
DOLLAR IN THE HANDS OF A NEGRO WILL PURCHASE THE SAME THING AS A DOLLAR
IN THE HANDS OF A WHITE MAN.  AT THE VERY LEAST, THE FREEDOM THAT
CONGRESS IS EMPOWERED TO SECURE UNDER THE THIRTEENTH AMENDMENT INCLUDES
THE FREEDOM TO BUY WHATEVER A WHITE MAN CAN BUY, THE RIGHT TO LIVE
WHEREVER A WHITE MAN CAN LIVE.  IF CONGRESS CANNOT SAY THAT BEING A
FREE MAN MEANS AT LEAST THIS MUCH, THEN THE THIRTEENTH AMENDMENT MADE A
PROMISE THE NATION CANNOT KEEP. 

REPRESENTATIVE WILSON OF IOWA WAS THE FLOOR MANAGER IN THE HOUSE FOR
THE CIVIL RIGHTS ACT OF 1866.  IN URGING THAT CONGRESS HAS AMPLE
AUTHORITY TO PASS THE PENDING BILL, HE RECALLED THE CELEBRATED WORDS OF
CHIEF JUSTICE MARSHALL IN MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 421: 

"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."  /82/ "THE
END IS LEGITIMATE," THE CONGRESSMAN SAID, "BECAUSE IT IS DEFINED BY THE
CONSTITUTION ITSELF.  THE END IS THE MAINTENANCE OF FREEDOM . . . . A
MAN WHO ENJOYS THE CIVIL RIGHTS MENTIONED IN THIS BILL CANNOT BE
REDUCED TO SLAVERY . . . . THIS SETTLES THE APPROPRIATENESS OF THIS
MEASURE, AND THAT SETTLES ITS CONSTITUTIONALITY."  /83/ 

WE AGREE.  THE JUDGMENT IS

              REVERSED. 

/1/  TO VINDICATE THEIR RIGHTS UNDER 42 U.S.C. 1982, THE PETITIONERS
INVOKED THE JURISDICTION OF THE DISTRICT COURT TO AWARD "DAMAGES OR . .
. EQUITABLE OR OTHER RELIEF UNDER ANY ACT OF CONGRESS PROVIDING FOR THE
PROTECTION OF CIVIL RIGHTS . . . ."  28 U.S.C. 1343(4).  IN SUCH CASES,
FEDERAL JURISDICTION DOES NOT REQUIRE THAT THE AMOUNT IN CONTROVERSY
EXCEED $10,000.  CF. DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157, 161;
HAGUE V.C.I.O., 307 U.S. 496, 507-514, 527-532. 

/2/  255 F.SUPP.  115. 

/3/  379 F.2D 33. 

/4/  389 U.S. 968. 

/5/  BECAUSE WE HAVE CONCLUDED THAT THE DISCRIMINATION ALLEGED IN
THE PETITIONERS' COMPLAINT VIOLATED A FEDERAL STATUTE THAT CONGRESS HAD
THE POWER TO ENACT UNDER THE THIRTEENTH AMENDMENT, WE FIND IT
UNNECESSARY TO DECIDE WHETHER THAT DISCRIMINATION ALSO VIOLATED THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

/6/  CONTRAST THE CIVIL RIGHTS ACT OF 1968, SEC. 804(A). 

/7/  CONTRAST SEC. 804(B). 

/8/  CONTRAST SECS. 804(C), (D), (E). 

/9/  CONTRAST SEC. 805. 

/10/  CONTRAST.  SEC.  806.  IN NOTING THAT 42 U.S.C. 1982 DIFFERS
FROM THE CIVIL RIGHTS ACT OF 1968 IN NOT DEALING EXPLICITLY AND
EXHAUSTIVELY WITH SUCH MATTERS (SEE ALSO NN. 7 AND 9, SUPRA), WE
INTIMATE NO VIEW UPON THE QUESTION WHETHER ANCILLARY SERVICES OR
FACILITIES OF THIS SORT MIGHT IN SOME SITUATIONS CONSTITUTE "PROPERTY"
AS THAT TERM IS EMPLOYED IN SEC. 1982.  NOR DO WE INTIMATE ANY VIEW
UPON THE EXTENT TO WHICH DISCRIMINATION IN THE PROVISION OF SUCH
SERVICES MIGHT BE BARRED BY 42 U.S.C. 1981, THE TEXT OF WHICH APPEARS
IN N. 78, INFRA. 

/11/  CONTRAST THE CIVIL RIGHTS ACT OF 1968, SECS. 808-811. 

/12/  CONTRAST SEC. 813(A). 

/13/  THE PETITIONERS IN THIS CASE SOUGHT AN ORDER REQUIRING THE
RESPONDENTS TO SELL THEM A "HYDE PARK" TYPE OF HOME ON LOT NO. 7147, OR
ON "SOME OTHER LOT IN (THE) SUBDIVISION SUFFICIENT TO ACCOMMODATE THE
HOME SELECTED . . . ."  THEY REQUESTED THAT THE RESPONDENTS BE ENJOINED
FROM DISPOSING OF LOT NO. 7147 WHILE LITIGATION WAS PENDING, AND THEY
ASKED FOR A PERMANENT INJUNCTION AGAINST FUTURE DISCRIMINATION OF THE
RESPONDENTS "IN THE SALE OF HOMES IN THE PADDOCK WOODS SUBDIVISION." 
THE FACT THAT 42 U.S.C. 1982 IS COUCHED IN DECLARATORY TERMS AND
PROVIDES NO EXPLICIT METHOD OF ENFORCEMENT DOES NOT, OF COURSE, PREVENT
A FEDERAL COURT FROM FASHIONING AN EFFECTIVE EQUITABLE REMEDY.  SEE,
E.G., TEXAS & N.O.R. CO. V. RY. CLERKS, 281 U.S. 548, 568-570; DECKERT
V. INDEPENDENCE CORP., 311 U.S. 282, 288; UNITED STATES V. REPUBLIC
STEEL CORP., 362 U.S. 482, 491-492; J. I. CASE CO. V. BORAK, 377 U.S.
426, 432-435.  CF. EX PARTE YOUNG, 209 U.S. 123; GRIFFIN V. SCHOOL
BOARD, 377 U.S. 218. 

/14/  CONTRAST THE CIVIL RIGHTS ACT OF 1968, SEC. 812(C).  THE
COMPLAINT IN THIS CASE ALLEGED THAT THE PETITIONERS HAD "SUFFERED
ACTUAL DAMAGES IN THE AMOUNT OF $50.00," BUT NO FACTS WERE STATED TO
SUPPORT OR EXPLAIN THAT ALLEGATION.  UPON RECEIVING THE INJUNCTIVE
RELIEF TO WHICH THEY ARE ENTITLED, SEE N. 13, SUPRA, THE PETITIONERS
WILL PRESUMABLY BE ABLE TO PURCHASE A HOME FROM THE RESPONDENTS AT THE
PRICE PREVAILING AT THE TIME OF THE WRONGFUL REFUSAL IN 1965--
SUBSTANTIALLY LESS, THE PETITIONERS CONCEDE, THAN THE CURRENT MARKET
VALUE OF THE PROPERTY IN QUESTION.  SINCE IT DOES NOT APPEAR THAT THE
PETITIONERS WILL THEN HAVE SUFFERED ANY UNCOMPENSATED INJURY, WE NEED
NOT DECIDE HERE WHETHER, IN SOME CIRCUMSTANCES, A PARTY AGGRIEVED BY A
VIOLATION OF SEC. 1982 MIGHT PROPERLY ASSERT AN IMPLIED RIGHT TO
COMPENSATORY DAMAGES.  CF. TEXAS & PACIFIC R. CO. V. RIGSBY, 241 U.S.
33, 39-40; STEELE V. LOUISVILLE & N. R. CO., 323 U.S. 192, 207;
WYANDOTTE TRANSPORTATION CO. V. UNITED STATES, 389 U.S. 191, 202, 204. 
SEE GENERALLY BELL V. HOOD, 327 U.S. 678, 684.  SEE ALSO 42 U.S.C.
1988.  IN NO EVENT, ON THE FACTS ALLEGED IN THE PRESENT COMPLAINT,
WOULD THE PETITIONERS BE ENTITLED TO PUNITIVE DAMAGES.  SEE
PHILADELPHIA, WILMINGTON, & BALTIMORE R. CO. V. QUIGLEY, 21 HOW.  202,
213-214.  CF. BARRY V. EDMUNDS, 116 U.S. 550, 562-565; WILLS V. TRANS
WORLD AIRLINES, INC., 200 F.SUPP.  360, 367-368.  WE INTIMATE NO VIEW,
HOWEVER, AS TO WHAT DAMAGES MIGHT BE AWARDED IN A CASE OF THIS SORT
ARISING IN THE FUTURE UNDER THE CIVIL RIGHTS ACT OF 1968. 

/15/  SEE SECS. 803(B), 807. 

/16/  HEARINGS ON S. 1358, S. 2114, AND S. 2280 BEFORE THE
SUBCOMMITTEE ON HOUSING AND URBAN AFFAIRS OF THE SENATE COMMITTEE ON
BANKING AND CURRENCY, 90TH CONG., 1ST SESS., 229.  THESE HEARINGS WERE
A FREQUENT POINT OF REFERENCE IN THE DEBATES PRECEDING PASSAGE OF THE
1968 CIVIL RIGHTS ACT.  SEE, E.G., 114 CONG.REC.  S1387 (FEB. 16,
1968), S. 1453 (FEB. 20, 1968), S1641 (FEB. 26, 1968), S1788 (FEB. 27,
1968). 

/17/  HEARINGS, SUPRA, N. 16, AT 229. 

/18/  ID., AT 230.  SEE ALSO ID., AT 129, 162-163, 251.  AND SEE
HEARINGS ON S. 1026, S. 1318, S. 1359, S. 1362, S. 1462, H.R. 2516, AND
H.R. 10805 BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE
SENATE COMMITTEE ON THE JUDICIARY, 90TH CONG., 1ST SESS., 416. 

/19/  114 CONG.REC.  H2807 (APRIL 10, 1968).  SEE ALSO ID., AT
H2808.  THE ATTORNEY GENERAL OF THE UNITED STATES STATED DURING THE
ORAL ARGUMENT IN THIS CASE THAT THE CIVIL RIGHTS ACT THEN PENDING IN
CONGRESS "WOULD PROVIDE OPEN HOUSING RIGHTS ON A COMPLICATED STATUTORY
SCHEME, INCLUDING ADMINISTRATIVE, JUDICIAL, AND OTHER SANCTIONS FOR ITS
EFFECTUATION . . . ."  "ITS POTENTIAL FOR EFFECTIVENESS," HE ADDED, "IS
PROBABLY MUCH GREATER THAN (SEC. 1982) BECAUSE OF THE SANCTIONS AND THE
REMEDIES THAT IT PROVIDES." 

/20/  AT ORAL ARGUMENT, THE ATTORNEY GENERAL EXPRESSED THE VIEW
THAT, IF CONGRESS SHOULD ENACT THE PENDING BILL, SEC. 1982 WOULD NOT BE
AFFECTED IN ANY WAY BUT "WOULD STAND INDEPENDENTLY."  THAT IS, OF
COURSE, CORRECT.  THE CIVIL RIGHTS ACT OF 1968 DOES NOT MENTION 42
U.S.C. 1982, AND WE CANNOT ASSUME THAT CONGRESS INTENDED TO EFFECT ANY
CHANGE, EITHER SUBSTANTIVE OR PROCEDURAL, IN THE PRIOR STATUTE.  SEE
UNITED STATES V. BORDEN CO., 308 U.S. 188, 198-199.  SEE ALSO SEC. 815
OF THE 1968 ACT:  "NOTHING IN THIS TITLE SHALL BE CONSTRUED TO
INVALIDATE OR LIMIT ANY LAW OF . . . ANY . . . JURISDICTION IN WHICH
THIS TITLE SHALL BE EFFECTIVE, THAT GRANTS, GUARANTEES, OR PROTECTS THE
. . . RIGHTS . . . GRANTED BY THIS TITLE . . . ." 

/21/  ON APRIL 22, 1968, WE REQUESTED THE VIEWS OF THE PARTIES AS TO
WHAT EFFECT, IF ANY, THE ENACTMENT OF THE CIVIL RIGHTS ACT OF 1968 HAD
UPON THIS LITIGATION.  THE PARTIES AND THE ATTORNEY GENERAL,
REPRESENTING THE UNITED STATES AS AMICUS CURIAE, HAVE INFORMED US THAT
THE RESPONDENTS' HOUSING DEVELOPMENT WILL NOT BE COVERED BY THE 1968
ACT UNTIL JANUARY 1, 1969; THAT, EVEN THEN, THE ACT WILL HAVE NO
APPLICATION TO CASES WHERE, AS HERE, THE ALLEGED DISCRIMINATION
OCCURRED PRIOR TO APRIL 11, 1968, THE DATE ON WHICH THE ACT BECAME LAW;
AND THAT, IF THE ACT WERE DEEMED APPLICABLE TO SUCH CASES, THE
PETITIONERS' CLAIM UNDER IT WOULD NONETHELESS BE BARRED BY THE 180-DAY
LIMITATION PERIOD OF SECS. 810(B) AND 812(A).     NOR DID THE PASSAGE
OF THE 1968 ACT AFTER ORAL ARGUMENT IN THIS CASE FURNISH A BASIS FOR
DISMISSING THE WRIT OF CERTIORARI AS IMPROVIDENTLY GRANTED.  RICE V.
SIOUX CITY CEMETERY, 349 U.S. 70, RELIED UPON IN DISSENT, POST, AT 479,
WAS QUITE UNLIKE THIS CASE, FOR THE STATUTE THAT BELATEDLY CAME TO THE
COURT'S ATTENTION IN RICE REACHED PRECISELY THE SAME SITUATIONS THAT
WOULD HAVE BEEN COVERED BY A DECISION OF THIS COURT SUSTAINING THE
PETITIONER'S CLAIM ON THE MERITS.  THE COVERAGE OF SEC. 1982, HOWEVER,
IS MARKEDLY DIFFERENT FROM THAT OF THE CIVIL RIGHTS ACT OF 1968. 

/22/  82 U.S.APP.D.C. 180, 162 F.2D 233. 

/23/  332 U.S. 789. 

/24/  COMPARE HARMON V. TYLER, 273 U.S. 668, INVALIDATING A NEW
ORLEANS ORDINANCE WHICH GAVE LEGAL FORCE TO PRIVATE DISCRIMINATION BY
FORBIDDING ANY NEGRO TO ESTABLISH A HOME IN A WHITE COMMUNITY, OR ANY
WHITE PERSON TO ESTABLISH A HOME IN A NEGRO COMMUNITY, "EXCEPT ON THE
WRITTEN CONSENT OF A MAJORITY OF THE PERSONS OF THE OPPOSITE RACE
INHABITING SUCH COMMUNITY OR PORTION OF THE CITY TO BE AFFECTED."  SEE
SHELLEY V. KRAEMER, 334 U.S. 1, 12. 

/25/  TWO OF THIS COURT'S EARLY OPINIONS CONTAIN DICTA TO THE
GENERAL EFFECT THAT SEC. 1982 IS LIMITED TO STATE ACTION.  VIRGINIA V.
RIVES, 100 U.S. 313, 317-318; CIVIL RIGHTS CASES, 109 U.S. 3, 16-17. 
BUT ALL THAT VIRGINIA V. RIVES, SUPRA, ACTUALLY HELD WAS THAT SEC. 641
OF THE REVISED STATUTES OF 1874 (DERIVED FROM SEC. 3 OF THE CIVIL
RIGHTS ACT OF 1866 AND CURRENTLY EMBODIED IN 28 U.S.C. 1443 (1)) DID
NOT AUTHORIZE THE REMOVAL OF A STATE PROSECUTION WHERE THE DEFENDANTS,
WITHOUT POINTING TO ANY STATUTE DISCRIMINATING AGAINST NEGROES, COULD
ONLY ASSERT THAT A DENIAL OF THEIR RIGHTS MIGHT TAKE PLACE AND MIGHT GO
UNCORRECTED AT TRIAL.  100 U.S.,AT 319-322.  SEE GEORGIA V. RACHEL, 384
U.S. 780, 797-804.  AND OF COURSE THE CIVIL RIGHTS CASES, SUPRA, WHICH
INVALIDATED SECS. 1 AND 2 OF THE CIVIL RIGHTS ACT OF 1875, 18 STAT.
335, DID NOT INVOLVE THE PRESENT STATUTE AT ALL. 

IT IS TRUE THAT A DICTUM IN HURD V. HODGE, 334 U.S. 24, 31,
CHARACTERIZED CORRIGAN V. BUCKLEY, 271 U.S. 323, AS HAVING "HELD" THAT
"(THE ACTION TOWARD WHICH THE PROVISIONS OF THE STATUTE . . . (ARE)
DIRECTED IS GOVERNMENTAL ACTION."  334 U.S.,AT 31.  BUT NO SUCH
STATEMENT APPEARS IN THE CORRIGAN OPINION, AND A CAREFUL EXAMINATION OF
CORRIGAN REVEALS THAT IT CANNOT BE READ AS AUTHORITY FOR THE
PROPOSITION ATTRIBUTED TO IT IN HURD.  IN CORRIGAN, SUITS HAD BEEN
BROUGHT TO ENJOIN A THREATENED VIOLATION OF CERTAIN RESTRICTIVE
COVENANTS IN THE DISTRICT OF COLUMBIA.  THE COURTS OF THE DISTRICT HAD
GRANTED RELIEF, SEE 55 APP.D.C. 30, 299 F. 899, AND THE CASE REACHED
THIS COURT ON APPEAL.  AS THE OPINION IN CORRIGAN SPECIFICALLY
RECOGNIZED, NO CLAIM THAT THE COVENANTS COULD NOT VALIDLY BE ENFORCED
AGAINST THE APPELLANTS HAD BEEN RAISED IN THE LOWER COURTS, AND NO SUCH
CLAIM WAS PROPERLY BEFORE THIS COURT.  271 U.S.,AT 330-331.  THE ONLY
QUESTION PRESENTED FOR DECISION WAS WHETHER THE RESTRICTIVE COVENANTS
THEMSELVES VIOLATED THE FIFTH, THIRTEENTH, AND FOURTEENTH AMENDMENTS,
AND SECS. 1977, 1978, AND 1979 OF THE REVISED STATUTES (NOW 42 U.S.C.
1981, 1982, AND 1983).  IBID.  ADDRESSING ITSELF TO THAT NARROW
QUESTION, THE COURT SAID THAT NONE OF THE PROVISIONS RELIED UPON BY THE
APPELLANTS PROHIBITED PRIVATE INDIVIDUALS FROM "ENTERING) INTO . . .
(CONTRACTS) IN RESPECT TO THE CONTROL AND DISPOSITION OF THEIR OWN
PROPERTY."  ID., AT 331.  NOR, ADDED THE COURT, HAD THE APPELLANTS EVEN
CLAIMED THAT THE PROVISIONS IN QUESTION "HAD, IN AND OF THEMSELVES, . .
. (THE) EFFECT" OF PROHIBITING SUCH CONTRACTS.  IBID. 

EVEN IF CORRIGAN SHOULD BE REGARDED AS AN ADJUDICATION THAT 42
U.S.C. 1982 (HEN SEC. 1978 OF THE REVISED STATUTES) DOES NOT PROHIBIT
PRIVATE INDIVIDUALS FROM AGREEING NOT TO SELL THEIR PROPERTY TO
NEGROES, CORRIGAN WOULD NOT SETTLE THE QUESTION WHETHER SEC. 1982
PROHIBITS AN ACTUAL REFUSAL TO SELL TO A NEGRO.  MOREOVER, SINCE THE
APPELLANTS IN CORRIGAN HAD NOT EVEN ARGUED IN THIS COURT THAT THE
STATUTE PROHIBITED PRIVATE AGREEMENTS OF THE SORT THERE INVOLVED, IT
WOULD BE A MISTAKE TO TREAT THE CORRIGAN DECISION AS A CONSIDERED
JUDGMENT EVEN ON THAT NARROW ISSUE. 

/26/  379 F.2D 33, 43. 

/27/  IBID. 

/28/  ACT OF APRIL 9, 1866, C. 31, SEC. 1, 14 STAT. 27, RE-ENACTED
BY SEC. 18 OF THE ENFORCEMENT ACT OF 1870, ACT OF MAY 31, 1870, C. 114,
SEC. 18, 16 STAT. 140, 144, AND CODIFIED IN SECS. 1977 AND 1978 OF THE
REVISED STATUTES OF 1874, NOW 42 U.S.C. 1981 AND 1982.  FOR THE TEXT OF
SEC. 1981, SEE N. 78, INFRA. 

/29/  IT IS, OF COURSE, IMMATERIAL THAT SEC. 1 ENDED WITH THE WORDS
"ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CUSTOM, TO THE CONTRARY
NOTWITHSTANDING."  THE PHRASE WAS OBVIOUSLY INSERTED TO QUALIFY THE
REFERENCE TO "LIKE PUNISHMENT, PAINS, AND PENALTIES, AND TO NONE
OTHER," THUS EMPHASIZING THE SUPREMACY OF THE 1866 STATUTE OVER
INCONSISTENT STATE OR LOCAL LAWS, IF ANY.  IT WAS DELETED, PRESUMABLY
AS SURPLUSAGE, IN SEC. 1978 OF THE REVISED STATUTES OF 1874. 

/30/  SEVERAL WEEKS BEFORE THE HOUSE BEGAN ITS DEBATE ON THE CIVIL
RIGHTS ACT OF 1866, CONGRESS HAD PASSED A BILL (S. 60) TO ENLARGE THE
POWERS OF THE FREEDMEN'S BUREAU (CREATED BY ACT OF MARCH 3, 1865, C.
90, 13 STAT. 507) BY EXTENDING MILITARY JURISDICTION OVER CERTAIN AREAS
IN THE SOUTH WHERE, "IN CONSEQUENCE OF ANY STATE OR LOCAL LAW, . . .
CUSTOM, OR PREJUDICE, ANY OF THE CIVIL RIGHTS . . . BELONGING TO WHITE
PERSONS (INCLUDING THE RIGHT . . . TO INHERIT, PURCHASE, LEASE, SELL,
HOLD, AND CONVEY REAL AND PERSONAL PROPERTY . . .)  ARE REFUSED OR
DENIED TO NEGROES . . . ON ACCOUNT OF RACE, COLOR, OR ANY PREVIOUS
CONDITION OF SLAVERY OR INVOLUNTARY SERVITUDE . . . ."  SEE CONG.
GLOBE, 39TH CONG., 1ST SESS., 129, 209.  BOTH HOUSES HAD PASSED S. 60
(SEE ID., AT 421, 688, 748, 775), AND ALTHOUGH THE SENATE HAD FAILED TO
OVERRIDE THE PRESIDENT'S VETO (SEE ID., AT 915-916, 943) THE BILL WAS
NONETHELESS SIGNIFICANT FOR ITS RECOGNITION THAT THE "RIGHT TO
PURCHASE" WAS A RIGHT THAT COULD BE "REFUSED OR DENIED" BY "CUSTOM OR
PREJUDICE" AS WELL AS BY "STATE OR LOCAL LAW."  SEE ALSO THE TEXT
ACCOMPANYING NN. 49 AND 59, INFRA.  OF COURSE AN "ABROGATION OF CIVIL
RIGHTS MADE 'IN CONSEQUENCE OF . . . CUSTOM, OR PREJUDICE' MIGHT AS
EASILY BE PERPETRATED BY PRIVATE INDIVIDUALS OR BY UNOFFICIAL COMMUNITY
ACTIVITY AS BY STATE OFFICERS ARMED WITH STATUTE OR ORDINANCE."  J.
TENBROEK, EQUAL UNDER LAW 179 (1965 ED.). 

/31/  WHEN CONGRESSMAN BINGHAM OF OHIO SPOKE OF THE CIVIL RIGHTS
ACT, HE CHARGED THAT IT WOULD DUPLICATE THE SUBSTANTIVE SCOPE OF THE
BILL RECENTLY VETOED BY THE PRESIDENT, SEE N. 30, SUPRA, AND THAT IT
WOULD EXTEND THE TERRITORIAL REACH OF THAT BILL THROUGHOUT THE UNITED
STATES.  CONG. GLOBE, 39TH CONG., 1ST SESS., 1292.  ALTHOUGH THE CIVIL
RIGHTS ACT, AS THE DISSENT NOTES, POST, AT 457, 462, MADE NO EXPLICIT
REFERENCE TO "PREJUDICE," CF. N. 30, SUPRA, THE FACT REMAINS THAT
NOBODY WHO ROSE TO ANSWER THE CONGRESSMAN DISPUTED HIS BASIC PREMISE
THAT THE CIVIL RIGHTS ACT OF 1866 WOULD PROHIBIT EVERY FORM OF RACIAL
DISCRIMINATION ENCOMPASSED BY THE EARLIER BILL THE PRESIDENT HAD
VETOED.  EVEN SENATOR TRUMBULL OF ILLINOIS, AUTHOR OF THE VETOED
MEASURE AS WELL AS OF THE CIVIL RIGHTS ACT, HAD PREVIOUSLY REMARKED
THAT THE LATTER WAS DESIGNED TO "EXTEND TO ALL PARTS OF THE COUNTRY,"
ON A PERMANENT BASIS, THE "EQUAL CIVIL RIGHTS" WHICH WERE TO HAVE BEEN
SECURED IN REBEL TERRITORY BY THE FORMER, ID., AT 322, TO THE END THAT
"ALL THE BADGES OF SERVITUDE . . . BE ABOLISHED."  ID., AT 323. 

/32/  SECTION 2 PROVIDED: "THAT ANY PERSON WHO, UNDER COLOR OF ANY
LAW, STATUTE, ORDINANCE, REGULATION, OR CUSTOM, SHALL SUBJECT, OR CAUSE
TO BE SUBJECTED, ANY INHABITANT OF ANY STATE OR TERRITORY TO THE
DEPRIVATION OF ANY RIGHT SECURED OR PROTECTED BY THIS ACT, OR TO
DIFFERENT PUNISHMENT, PAINS, OR PENALTIES ON ACCOUNT OF SUCH PERSON
HAVING AT ANY TIME BEEN HELD IN A CONDITION OF SLAVERY OR INVOLUNTARY
SERVITUDE, EXCEPT AS A PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL
HAVE BEEN DULY CONVICTED, OR BY REASON OF HIS COLOR OR RACE, THAN IS
PRESCRIBED FOR THE PUNISHMENT OF WHITE PERSONS, SHALL BE DEEMED GUILTY
OF A MISDEMEANOR, AND, ON CONVICTION, SHALL BE PUNISHED BY FINE NOT
EXCEEDING ONE THOUSAND DOLLARS, OR IMPRISONMENT NOT EXCEEDING ONE YEAR,
OR BOTH, IN THE DISCRETION OF THE COURT."  FOR THE EVOLUTION OF THIS
PROVISION INTO 18 U.S.C. 242, SEE SCREWS V. UNITED STATES, 325 U.S. 91,
98-99; UNITED STATES V. PRICE, 383 U.S. 787, 804. 

/33/  WHEN CONGRESSMAN LOAN OF MISSOURI ASKED THE CHAIRMAN OF THE
HOUSE JUDICIARY COMMITTEE, MR. WILSON OF IOWA, "WHY (DOES) THE
COMMITTEE LIMIT THE PROVISIONS OF THE SECOND SECTION TO THOSE WHO ACT
UNDER THE COLOR OF LAW," CONG. GLOBE, 39TH CONG., 1ST SESS., 1120, HE
WAS OBVIOUSLY INQUIRING WHY THE SECOND SECTION DID NOT ALSO PUNISH
THOSE WHO VIOLATED THE FIRST WITHOUT ACTING "UNDER THE COLOR OF LAW." 
SPECIFICALLY, HE ASKED: "WHY NOT LET THEM (THE PENALTIES OF SEC. 2)
APPLY TO THE WHOLE COMMUNITY WHERE THE ACTS ARE COMMITTED?"  IBID. MR.
WILSON'S REPLY WAS PARTICULARLY REVEALING.  IF, AS FLOOR MANAGER OF THE
BILL, HE HAD VIEWED ACTS NOT UNDER COLOR OF LAW AS NOT VIOLATIVE OF
SEC. 1 AT ALL, THAT WOULD OF COURSE HAVE BEEN THE SHORT ANSWER TO THE
CONGRESSMAN'S QUERY.  INSTEAD, MR. WILSON FOUND IT NECESSARY TO EXPLAIN
THAT THE JUDICIARY COMMITTEE DID NOT WANT TO MAKE "A GENERAL CRIMINAL
CODE FOR THE STATES."  IBID.  HENCE ONLY THOSE WHO DISCRIMINATED "IN
REFERENCE TO CIVIL RIGHTS . . . UNDER THE COLOR OF . . . LOCAL LAWS"
WERE MADE SUBJECT TO THE CRIMINAL SANCTIONS OF SEC. 2.  IBID. 

CONGRESS MIGHT HAVE THOUGHT IT APPROPRIATE TO CONFINE CRIMINAL
PUNISHMENT TO STATE OFFICIALS, OATH-BOUND TO SUPPORT THE SUPREME
FEDERAL LAW, WHILE ALLOWING ONLY CIVIL REMEDIES-- OR PERHAPS ONLY
PREVENTIVE RELIEF-- AGAINST PRIVATE VIOLATORS.  OR CONGRESS MIGHT HAVE
THOUGHT THAT STATES WHICH DID NOT AUTHORIZE ABRIDGMENT OF THE RIGHTS
DECLARED IN SEC. 1 WOULD THEMSELVES PUNISH ALL WHO INTERFERED WITH
THOSE RIGHTS WITHOUT OFFICIAL AUTHORITY.  SEE, E.G., CONG. GLOBE, 39TH
CONG., 1ST SESS., 1758, 1785.  CF. CIVIL RIGHTS CASES, 109 U.S. 3, 19,
24-25. 

WHATEVER THE REASON, IT WAS REPEATEDLY STRESSED THAT THE ONLY
VIOLATIONS "REACHED AND PUNISHED" BY THE BILL, SEE CONG. GLOBE, 39TH
CONG., 1ST SESS., AT 1294, WOULD BE THOSE "DONE UNDER COLOR OF STATE
AUTHORITY."  IBID.  IT IS OBSERVED IN DISSENT, POST, AT 458, THAT
SENATOR TRUMBULL TOLD SENATOR COWAN THAT SEC. 2 WAS DIRECTED NOT AT
"STATE OFFICERS ESPECIALLY, BUT (AT) EVERYBODY WHO VIOLATES THE LAW." 
THAT REMARK, HOWEVER, WAS NOTHING MORE THAN A REPLY TO SENATOR COWAN'S
CHARGE THAT SEC. 2 WAS "EXCEEDINGLY OBJECTIONABLE" IN SINGLING OUT
STATE JUDICIAL OFFICERS FOR PUNISHMENT FOR THE FIRST TIME "IN THE
HISTORY OF CIVILIZED LEGISLATION."  ID., AT 500. 

/34/  SEE, E.G., CONG. GLOBE, 39TH CONG., 1ST SESS., AT 39, 474, 516
517, 602-603, 1123-1125, 1151-1153, 1160.  FOR THE SUBSTANCE OF THE
CODES AND THEIR OPERATION, SEE H.R. EXEC. DOC. NO. 118, 39TH CONG., 1ST
SESS.; S. EXEC. DOC. NO. 6, 39TH CONG., 2D SESS.; 1 W. FLEMING,
DOCUMENTARY HISTORY OF RECONSTRUCTION 273-312 (1906); E. MCPHERSON, THE
POLITICAL HISTORY OF THE UNITED STATES OF AMERICA DURING THE PERIOD OF
RECONSTRUCTION 29-44 (1871); 2 S. MORISON AND H. COMMAGER, THE GROWTH
OF THE AMERICAN REPUBLIC 17-18 (1950 ED.); K. STAMPP, THE ERA OF
RECONSTRUCTION 79-81 (1965). 

/35/  SEE N. 31, SUPRA.  IT IS TRUE, AS THE DISSENT EMPHASIZES, POST,
AT 460, THAT SENATOR TRUMBULL REMARKED AT ONE POINT THAT THE ACT "COULD
HAVE NO OPERATION IN MASSACHUSETTS, NEW YORK, ILLINOIS, OR MOST OF THE
STATES OF THE UNION," WHOSE LAWS DID NOT THEMSELVES DISCRIMINATE
AGAINST NEGROES.  CONG. GLOBE, 39TH CONG., 1ST SESS., 1761.  BUT THE
SENATOR WAS SIMPLY OBSERVING THAT THE ACT WOULD "IN NO MANNER
(INTERFERE) WITH THE . . . REGULATIONS OF ANY STATE WHICH PROTECTS ALL
ALIKE IN THEIR RIGHTS OF PERSON AND PROPERTY."  IBID.  SEE ALSO ID., AT
476, 505, 600.  THAT IS, THE ACT WOULD HAVE NO EFFECT UPON
NONDISCRIMINATORY LEGISLATION.  SENATOR TRUMBULL OBVIOUSLY COULD NOT
HAVE MEANT THAT THE LAW WOULD APPLY TO RACIAL DISCRIMINATION IN SOME
STATES BUT NOT IN OTHERS, FOR THE BILL ON ITS FACE APPLIED UPON ITS
ENACTMENT "IN EVERY STATE AND TERRITORY IN THE UNITED STATES," AND NO
ONE DISAGREED WHEN CONGRESSMAN BINGHAM COMPLAINED THAT, UNLIKE
CONGRESS' RECENTLY VETOED ATTEMPT TO EXPAND THE FREEDMEN'S BUREAU, SEE
N. 30, SUPRA, THE CIVIL RIGHTS ACT WOULD OPERATE "IN EVERY STATE OF THE
UNION."  ID., AT 1292.  NOR, CONTRARY TO A SUGGESTION MADE IN DISSENT,
POST, AT 460, WAS THE CONGRESSMAN SPEAKING ONLY OF THE ACT'S POTENTIAL
OPERATION IN ANY STATE THAT MIGHT ENACT A RACIALLY DISCRIMINATORY LAW
IN THE FUTURE.  THE CIVIL RIGHTS ACT, CONGRESSMAN BINGHAM INSISTED,
WOULD "BE ENFORCED IN EVERY STATE . . . (AT) THE PRESENT . . . TIME." 
IBID. 

/36/  J. TENBROEK, SUPRA, N. 30, AT 181.  SEE ALSO W. BROCK, AN
AMERICAN CRISIS 124 (1963); J. MCPHERSON, THE STRUGGLE FOR EQUALITY 332
(1964); K. STAMPP, SUPRA, N. 34, AT 75, 131-132. 

/37/  CONG. GLOBE, 39TH CONG., 1ST SESS., 95, 1833.     /38/  ID.,
AT 1160. 

/39/  ID., AT 339-340, 1160, 1835.  IT IS TRUE, AS THE DISSENT
NOTES, POST, AT 462, THAT SOME OF THE REFERENCES TO PRIVATE ASSAULTS
OCCURRED DURING DEBATE ON THE FRREDMEN'S BUREAU BILL, N. 30, SUPRA, BUT
THE CONGRESSIONAL DISCUSSION PROCEEDED UPON THE UNDERSTANDING THAT ALL
DISCRIMINATORY CONDUCT REACHED BY THE FREEDMEN'S BUREAU BILL WOULD BE
REACHED AS WELL BY THE CIVIL RIGHTS ACT.  SEE, E.G., N. 31, SUPRA. 

/40/  ID., AT 1835.  IT IS CLEAR THAT THESE INSTANCES OF PRIVATE
MISTREATMENT, SEE ALSO TEXT ACCOMPANYING N. 41, INFRA, WERE UNDERSTOOD
AS ILLUSTRATIVE OF THE EVILS THAT THE CIVIL RIGHTS ACT OF 1866 WOULD
CORRECT.  CONGRESSMAN ELDRIDGE OF WISCONSIN, FOR EXAMPLE, SAID THIS:
"GENTLEMEN REFER US TO INDIVIDUAL CASES OF WRONG PERPETRATED UPON THE
FREEDMEN OF THE SOUTH AS AN ARGUMENT WHY WE SHOULD EXTEND THE FEDERAL
AUTHORITY INTO THE DIFFERENT STATES TO CONTROL THE ACTION OF THE
CITIZENS THEREOF.  BUT, I ASK, HAS NOT THE SOUTH SUBMITTED TO THE
ALTERED STATE OF THINGS THERE, TO THE LATE AMENDMENT OF THE
CONSTITUTION, TO THE LOSS OF THEIR SLAVE PROPERTY, WITH A CHEERFULNESS
AND GRACE THAT WE DID NOT EXPECT?  . . . I DEPRECATE ALL THESE MEASURES
BECAUSE OF THE IMPLICATION THEY CARRY UPON THEIR FACE THAT THE PEOPLE
WHO HAVE HERETOFORE OWNED SLAVES INTEND TO DO THEM WRONG.  I DO NOT
BELIEVE IT . . . . THE CASES OF ILL-TREATMENT ARE EXCEPTIONAL CASES." 
ID., AT 1156.  SO IT WAS THAT "OPPONENTS DENIED OR MINIMIZED THE FACTS
ASSERTED" BUT "DID NOT CONTEND THAT THE (CIVIL RIGHTS ACT) WOULD NOT
REACH SUCH FACTS IF THEY DID EXIST."  J. TENBROEK, SUPRA, N. 30, AT
181. 

/41/  REPORT OF C. SCHURZ, S. EXEC. DOC. NO. 2, 39TH CONG., 1ST
SESS., 2, 17-25.  SEE W. BROCK, SUPRA, N. 36, AT 40-42; K. STAMPP,
SUPRA, N. 34, 73-75. 

/42/  REPORT OF C. SCHURZ, SUPRA, AT 23-24. 

/43/  ID., AT 25. 

/44/  ID., AT 18. 

/45/  ID., AT 35. 

/46/  J. TENBROEK, SUPRA, N. 30, AT 177.  ONE OF THE PROPOSALS,
SPONSORED BY SENATOR WILSON OF MASSACHUSETTS, WOULD HAVE DECLARED VOID
ALL "LAWS, STATUTES, ACTS, ORDINANCES, RULES, AND REGULATIONS"
ESTABLISHING OR MAINTAINING IN FORMER REBEL STATES "ANY INEQUALITY OF
CIVIL RIGHTS AND IMMUNITIES" ON ACCOUNT OF "COLOR, RACE, OR . . . A
PREVIOUS CONDITION . . . OF SLAVERY."  CONG. GLOBE, 39TH CONG., 1ST
SESS., 39.  THE OTHER TWO PROPOSALS, SPONSORED BY SENATOR SUMNER OF
MASSACHUSETTS, WOULD HAVE STRUCK DOWN IN THE FORMER CONFEDERATE STATES
"ALL LAWS . . . ESTABLISHING ANY OLIGARCHICAL PRIVILEGES AND ANY
DISTINCTION OF RIGHTS ON ACCOUNT OF COLOR OR RACE" AND WOULD HAVE
REQUIRED THAT ALL PERSONS THERE BE "RECOGNIZED AS EQUAL BEFORE THE
LAW."  ID., AT 91. 

/47/  SEE N. 46, SUPRA. 

/48/  CONG. GLOBE, 39TH CONG., 1ST SESS., 43.  THE DISSENT SEEKS TO
NEUTRALIZE THE IMPACT OF THIS QUOTATION BY NOTING THAT, PRIOR TO MAKING
THE ABOVE STATEMENT, THE SENATOR HAD ARGUED THAT THE SECOND CLAUSE OF
THE THIRTEENTH AMENDMENT WAS INSERTED "FOR THE PURPOSE, AND NONE OTHER,
OF PREVENTING STATE LEGISLATURES FROM ENSLAVING, UNDER ANY PRETENSE,
THOSE WHOM THE FIRST CLAUSE DECLARED SHOULD BE FREE."  SEE POST, AT
455, 462-463.  IN FACT, SENATOR TRUMBULL WAS SIMPLY REPLYING AT THAT
POINT TO THE CONTENTION OF SENATOR SAULSBURY OF DELAWARE THAT THE
SECOND CLAUSE OF THE THIRTEENTH AMENDMENT WAS NEVER INTENDED TO
AUTHORIZE FEDERAL LEGISLATION INTERFERING WITH SUBJECTS OTHER THAN
SLAVERY ITSELF.  SEE ID., AT 42.  SENATOR TRUMBULL RESPONDED THAT THE
CLAUSE WAS INTENDED TO AUTHORIZE PRECISELY SUCH LEGISLATION.  THAT,
"AND NONE OTHER," HE SAID FOR EMPHASIS, WAS ITS AVOWED PURPOSE.  BUT
SENATOR TRUMBULL DID NOT IMPLY THAT THE FORCE OF SEC. 2 OF THE
THIRTEENTH AMENDMENT WOULD BE SPENT ONCE CONGRESS HAD NULLIFIED
DISCRIMINATORY STATE LAWS.  ON THE CONTRARY, HE EMPHASIZED THE FACT
THAT IT WAS "FOR CONGRESS TO DETERMINE, AND NOBODY ELSE," WHAT SORT OF
LEGISLATION MIGHT BE "APPROPRIATE" TO MAKE THE THIRTEENTH AMENDMENT
EFFECTIVE.  ID., AT 43.  CF. PART V OF THIS OPINION, INFRA. 

/49/  ID., AT 77. 

/50/  ID., AT 129. 

/51/  ID., AT 474. 

/52/  IBID.  SEE THE DISSENTING OPINION, POST, AT 458. 

/53/  ID., AT 475. 

/54/  ID., AT 599.  SENATOR TRUMBULL LATER OBSERVED THAT HIS BILL
WOULD ADD NOTHING TO FEDERAL AUTHORITY IF THE STATES WOULD FULLY
"PERFORM THEIR CONSTITUTIONAL OBLIGATIONS."  ID., AT 600.  SEE ALSO
SENATOR TRUMBULL'S REMARKS, ID., AT 1758; THE REMARKS OF SENATOR LANE
OF INDIANA, ID., AT 602-603; AND THE REMARKS OF CONGRESSMAN WILSON OF
IOWA, ID., AT 1117-1118.  BUT IT WOULD BE A SERIOUS MISTAKE TO INFER
FROM SUCH STATEMENTS ANY NOTION (SEE THE DISSENTING OPINION, POST, AT
460) THAT, SO LONG AS THE STATES REFRAINED FROM ACTIVELY DISCRIMINATING
AGAINST NEGROES, THEIR "OBLIGATIONS" IN THIS AREA, AS SENATOR TRUMBULL
AND OTHERS UNDERSTOOD THEM, WOULD HAVE BEEN FULFILLED.  FOR THE
SENATOR'S CONCERN, IT WILL BE RECALLED (SEE TEXT ACCOMPANYING N. 49,
SUPRA), WAS THAT NEGROES MIGHT BE "OPPRESSED AND IN FACT DEPRIVED OF
THEIR FREEDOM" NOT ONLY BY HOSTILE LAWS BUT ALSO BY "PREVAILING PUBLIC
SENTIMENT," AND HE VIEWED HIS BILL AS NECESSARY "UNLESS BY LOCAL
LEGISLATION THEY (THE STATES) PROVIDE FOR THE REAL FREEDOM OF THEIR
FORMER SLAVES."  ID., AT 77.  SEE ALSO ID., AT 43.  AND SEE THE REMARKS
OF CONGRESSMAN LAWRENCE OF OHIO: "NOW, THERE ARE TWO WAYS IN WHICH A
STATE MAY UNDERTAKE TO DEPRIVE CITIZENS OF THESE ABSOLUTE, INHERENT,
AND INALIENABLE RIGHTS:  EITHER BY PROHIBITORY LAWS, OR BY A FAILURE TO
PROTECT ANY ONE OF THEM."  ID., AT 1833. 

/55/  SEE, E.G., THE REMARKS OF SENATOR HOWARD OF MICHIGAN.  ID., AT
504. 

/56/  SEE, E.G., THE REMARKS OF SENATOR COWAN OF PENNSYLVANIA, ID.,
AT 500, AND THE REMARKS OF SENATOR HENDRICKS OF INDIANA.  ID., AT 601. 

/57/  SENATOR SAULSBURY OF DELAWARE.  ID., AT 478. 

/58/  SENATOR VAN WINKLE OF WEST VIRGINIA.  ID., AT 498. 

/59/  SENATOR LANE OF INDIANA.  ID., AT 603. 

/60/  ID., AT 606-607. 

/61/  SEE, E.G., ID., AT 1118-1119, 1123-1125, 1151-1153, 1160.  SEE
GENERALLY THE DISCUSSION IN THE DISSENTING OPINION, POST, AT 464-467. 

/62/  ID., AT 1151. 

/63/  ID., AT 1124. 

/64/ IBID.  THE CLEAR IMPORT OF THESE REMARKS IS IN NO WAY
DIMINISHED BY THE HEATED DEBATE, SEE ID., AT 1290-1294, PORTIONS OF
WHICH ARE QUOTED IN THE DISSENTING OPINION, POST, AT 467-468, BETWEEN
REPRESENTATIVE BINGHAM, OPPOSING THE BILL, AND REPRESENTATIVE
SHELLABARGER, SUPPORTING IT, OVER THE QUESTION OF WHAT KINDS OF STATE
LAWS MIGHT BE INVALIDATED BY SEC. 1, A QUESTION NOT INVOLVED IN THIS
CASE. 

/65/  ID., AT 1367.  ON MARCH 15, THE SENATE CONCURRED IN THE
SEVERAL TECHNICAL AMENDMENTS THAT HAD BEEN MADE BY THE HOUSE.  ID., AT
1413-1416. 

/66/  ID., AT 1679-1681. 

/67/  SENATOR COWAN OF PENNSYLVANIA.  ID., AT 1781. 

/68/  SENATOR DAVIS OF KENTUCKY.  ID., APPENDIX, AT 183.  SUCH
EXPANSIVE VIEWS OF THE ACT'S REACH FOUND FREQUENT AND UNCHALLENGED
EXPRESSION IN THE NATION'S PRESS.  SEE, E.G., DAILY NATIONAL
INTELLIGENCER (WASHINGTON, D.C.), MARCH 24, 1866, P. 2, COL. 1; NEW
YORK HERALD, MARCH 29, 1866, P. 4, COL. 3; CINCINNATI COMMERCIAL, MARCH
30, 1866, P. 4, COL. 2; EVENING POST (NEW YORK), APRIL 7, 1866, P. 2,
COL. 1; INDIANAPOLIS DAILY HERALD, APRIL 17, 1866, P. 2, COL. 1. 

/69/  CONG. GLOBE, 39TH CONG., 1ST SESS., 1809, 1861. 

/70/  "NEVER BEFORE HAD CONGRESS OVER-RIDDEN A PRESIDENT ON A MAJOR
POLITICAL ISSUE, AND THERE WAS SPECIAL GRATIFICATION IN FEELING THAT
THIS HAD NOT BEEN DONE TO CARRY SOME MATTER OF MATERIAL INTEREST, SUCH
AS A TARIFF, BUT IN THE CAUSE OF DISINTERESTED JUSTICE."  W. BROCK,
SUPRA, N. 36, AT 115. 

/71/  SECTION 18 OF THE ENFORCEMENT ACT OF 1870, ACT OF MAY 31,
1870, C. 114, SEC. 18, 16 STAT. 144: "AND BE IT FURTHER ENACTED, THAT
THE ACT TO PROTECT ALL PERSONS IN THE UNITED STATES IN THEIR CIVIL
RIGHTS, AND FURNISH THE MEANS OF THEIR VINDICATION, PASSED APRIL NINE,
EIGHTEEN HUNDRED AND SIXTY-SIX, IS HEREBY RE-ENACTED . . . ." 

/72/  SEE UNITED STATES V. MOSLEY, 238 U.S. 383, 387-388; UNITED
STATES V. PRICE, 383 U.S. 787, 804-805; 2 W.FLEMING, DOCUMENTARY
HISTORY OF RECONSTRUCTION 285-288 (1907); K. STAMPP, SUPRA, N. 34, AT
145, 171, 185, 198-204; G. STEPHENSON, RACE DISTINCTIONS IN AMERICAN
LAW 116 (1910). 

/73/  THE COURT OF APPEALS IN THIS CASE SEEMS TO HAVE DERIVED SUCH
AN ASSUMPTION FROM LANGUAGE IN VIRGINIA V. RIVES, 100 U.S. 313, 317
318, AND HURD V. HODGE, 334 U.S. 24, 31.  SEE 379 F.2D 33, 39-40, 43. 
BOTH OF THOSE OPINIONS SIMPLY ASSERTED THAT, AT LEAST AFTER ITS RE
ENACTMENT IN 1870, THE CIVIL RIGHTS ACT OF 1866 WAS DIRECTED ONLY AT
GOVERNMENTAL ACTION.  NEITHER OPINION EXPLAINED WHY THAT WAS THOUGHT TO
BE SO, AND IN EACH CASE THE STATEMENT WAS MERELY DICTUM.  SEE N. 25,
SUPRA. 

/74/  SO IT WAS, FOR EXAMPLE, THAT THIS COURT UNANIMOUSLY UPHELD THE
POWER OF CONGRESS UNDER THE THIRTEENTH AMENDMENT TO MAKE IT A CRIME FOR
ONE INDIVIDUAL TO COMPEL ANOTHER TO WORK IN ORDER TO DISCHARGE A DEBT. 
CLYATT V. UNITED STATES, 197 U.S. 207. 

/75/  SEE, E.G., CONG. GLOBE, 39TH CONG., 1ST SESS., 113, 318, 476,
499, 507, 576, 600-601. 

/76/  SEE, E.G., CONG. GLOBE, 38TH CONG., 1ST SESS., 1366, 2616,
2940-2941, 2962, 2986; CONG. GLOBE, 38TH CONG., 2D SESS., 178-180, 182,
192, 195, 239, 241-242, 480-481, 529. 

/77/  CONG. GLOBE, 39TH CONG., 1ST SESS., 322.  SEE ALSO THE REMARKS
OF SENATOR HOWARD OF MICHIGAN.  ID., AT 503. 

/78/  THE COURT DID CONCLUDE IN THE CIVIL RIGHTS CASES THAT "THE ACT
OF . . . THE OWNER OF THE INN, THE PUBLIC CONVEYANCE OR PLACE OF
AMUSEMENT, REFUSING . . . ACCOMMODATION" CANNOT BE "JUSTLY REGARDED AS
IMPOSING ANY BADGE OF SLAVERY OR SERVITUDE UPON THE APPLICANT."  109
U.S.,AT 24.  "IT WOULD BE RUNNING THE SLAVERY ARGUMENT INTO THE
GROUND," THE COURT THOUGHT, "TO MAKE IT APPLY TO EVERY ACT OF
DISCRIMINATION WHICH A PERSON MAY SEE FIT TO MAKE AS TO THE GUESTS HE
WILL ENTERTAIN, OR AS TO THE PEOPLE HE WILL TAKE INTO HIS COACH OR CAB
OR CAR, OR ADMIT TO HIS CONCERT OR THEATRE, OR DEAL WITH IN OTHER
MATTERS OF INTERCOURSE OR BUSINESS."  ID., AT 24-25.  MR. JUSTICE
HARLAN DISSENTED, EXPRESSING THE VIEW THAT "SUCH DISCRIMINATION
PRACTISED BY CORPORATIONS AND INDIVIDUALS IN THE EXERCISE OF THEIR
PUBLIC OR QUASI-PUBLIC FUNCTIONS IS A BADGE OF SERVITUDE THE IMPOSITION
OF WHICH CONGRESS MAY PREVENT UNDER ITS POWER, BY APPROPRIATE
LEGISLATION, TO ENFORCE THE THIRTEENTH AMENDMENT."  ID., AT 43. 

WHATEVER THE PRESENT VALIDITY OF THE POSITION TAKEN BY THE MAJORITY
ON THAT ISSUE-- A QUESTION RENDERED LARGELY ACADEMIC BY TITLE II OF THE
CIVIL RIGHTS ACT OF 1964, 78 STAT. 243 (SEE HEART OF ATLANTA MOTEL V.
UNITED STATES, 379 U.S. 241; KATZENBACH V. MCCLUNG, 379 U.S. 294)-- WE
NOTE THAT THE ENTIRE COURT AGREED UPON AT LEAST ONE PROPOSITION:  THE
THIRTEENTH AMENDMENT AUTHORIZES CONGRESS NOT ONLY TO OUTLAW ALL FORMS
OF SLAVERY AND INVOLUNTARY SERVITUDE BUT ALSO TO ERADICATE THE LAST
VESTIGES AND INCIDENTS OF A SOCIETY HALF SLAVE AND HALF FREE, BY
SECURING TO ALL CITIZENS, OF EVERY RACE AND COLOR, "THE SAME RIGHT TO
MAKE AND ENFORCE CONTRACTS, TO SUE, BE PARTIES, GIVE EVIDENCE, AND TO
INHERIT, PURCHASE, LEASE, SELL AND CONVEY PROPERTY, AS IS ENJOYED BY
WHITE CITIZENS."  109 U.S.,AT 22.  CF. ID., AT 35 (DISSENTING
OPINION). 

IN HODGES V. UNITED STATES, 203 U.S. 1, A GROUP OF WHITE MEN HAD
TERRORIZED SEVERAL NEGROES TO PREVENT THEM FROM WORKING IN A SAWMILL. 
THE TERRORIZERS WERE CONVICTED UNDER 18 U.S.C. 241 (THEN REVISED
STATUTES && SEC. 5508) OF CONSPIRING TO PREVENT THE NEGROES FROM
EXERCISING THE RIGHT TO CONTRACT FOR EMPLOYMENT, A RIGHT SECURED BY 42
U.S.C. 1981 (THEN REVISED STATUTES SEC. 1977, DERIVED FROM SEC. 1 OF
THE CIVIL RIGHTS ACT OF 18LL SEE N. 28, SUPRA).  SECTION 1981 PROVIDES,
IN TERMS THAT CLOSELY PARALLEL THOSE OF SEC. 1982 (THEN REVISED
STATUTES SEC. 1978), THAT ALL PERSONS IN THE UNITED STATES "SHALL HAVE
THE SAME RIGHT . . . TO MAKE AND ENFORCE CONTRACTS, TO SUE BE PARTIES,
GIVE EVIDENCE, AND TO THE FULL AND EQUAL BENEFIT OF ALL LAWS AND
PROCEEDINGS FOR THE SECURITY OF PERSONS AND PROPERTY AS IS ENJOYED BY
WHITE CITIZENS . . . ." 

THIS COURT REVERSED THE CONVICTION.  THE MAJORITY RECOGNIZED THAT
"ONE OF THE DISABILITIES OF SLAVERY, ONE OF THE INDICIA OF ITS
EXISTENCE, WAS A LACK OF POWER TO MAKE OR PERFORM CONTRACTS."  203
U.S.,AT 17.  AND THERE WAS NO DOUBT THAT THE DEFENDANTS HAD DEPRIVED
THEIR NEGRO VICTIMS, ON RACIAL GROUNDS, OF THE OPPORTUNITY TO DISPOSE
OF THEIR LABOR BY CONTRACT.  YET THE MAJORITY SAID THAT "NO MERE
PERSONAL ASSAULT OR TRESPASS OR APPROPRIATION OPERATES TO REDUCE THE
INDIVIDUAL TO A CONDITION OF SLAVERY," ID., AT 18, AND ASSERTED THAT
ONLY CONDUCT WHICH ACTUALLY ENSLAVES SOMEONE CAN BE SUBJECTED TO
PUNISHMENT UNDER LEGISLATION ENACTED TO ENFORCE THE THIRTEENTH
AMENDMENT.  CONTRA, UNITED STATES V. CRUIKSHANK, 25 FED.CAS.  707, 712
(NO. 14,897) (DICTUM OF MR. JUSTICE BRADLEY, ON CIRCUIT), AFF'D, 92
U.S. 542; UNITED STATES V. MORRIS, 125 F. 322, 324, 330-331.  MR.
JUSTICE HARLAN, JOINED BY MR. JUSTICE DAY DISSENTED.  IN THEIR VIEW,
THE INTERPRETATION THE MAJORITY PLACED UPON THE THIRTEENTH AMENDMENT
WAS "ENTIRELY TOO NARROW AND . . . HOSTILE TO THE FREEDOM ESTABLISHED
BY THE SUPREME LAW OF THE LAND."  203 U.S.,AT 37.  THAT INTERPRETATION
WENT FAR, THEY THOUGHT, "TOWARDS NEUTRALIZING MANY DECLARATIONS MADE AS
TO THE OBJECT OF THE RECENT AMENDMENTS OF THE CONSTITUTIONA COMMON
PURPOSE OF WHICH, THIS COURT HAS SAID, WAS TO SECURE TO A PEOPLE
THERETOFORE IN SERVITUDE, THE FREE ENJOYMENT, WITHOUT DISCRIMINATION
MERELY ON ACCOUNT OF THEIR RACE, OF THE ESSENTIAL RIGHTS THAT APPERTAIN
TO AMERICAN CITIZENSHIP AND TO FREEDOM."  IBID.     THE CONCLUSION OF
THE MAJORITY IN HODGES RESTED UPON A CONCEPT OF CONGRESSIONAL POWER
UNDER THE THIRTEENTH AMENDMENT IRRECONCILABLE WITH THE POSITION TAKEN
BY EVERY MEMBER OF THIS COURT IN THE CIVIL RIGHTS CASES AND
INCOMPATIBLE WITH THE HISTORY AND PURPOSE OF THE AMENDMENT ITSELF. 
INSOFAR AS HODGES IS INCONSISTENT WITH OUR HOLDING TODAY, IT IS HEREBY
OVERRULED. 

/79/  SEE TEXT ACCOMPANYING N. 48, SUPRA. 

/80/  IBID. 

/81/  SEE TEXT ACCOMPANYING N. 62, SUPRA. 

/82/  CONG. GLOBE, 39TH CONG., 1ST SESS., 1118. 

/83/  IBID. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE ACT OF APRIL 9, 1866, 14 STAT. 27, 42 U.S.C. 1982, PROVIDES:
"ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT, IN EVERY
STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS THEREOF TO
INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL
PROPERTY." 

THIS ACT WAS PASSED TO ENFORCE THE THIRTEENTH AMENDMENT WHICH IN
SEC. 1 ABOLISHED "SLAVERY" AND "INVOLUNTARY SERVITUDE, EXCEPT AS A
PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED"
AND IN SEC. 2 GAVE CONGRESS POWER "TO ENFORCE THIS ARTICLE BY
APPROPRIATE LEGISLATION." 

ENABLING A NEGRO TO BUY AND SELL REAL AND PERSONAL PROPERTY IS A
REMOVAL OF ONE OF MANY BADGES OF SLAVERY. 

"SLAVES WERE NOT CONSIDERED MEN . . . . THEY COULD OWN NOTHING; THEY
COULD MAKE NO CONTRACTS; THEY COULD HOLD NO PROPERTY, NOR TRAFFIC IN
PROPERTY; THEY COULD NOT HIRE OUT; THEY COULD NOT LEGALLY MARRY NOR
CONSTITUTE FAMILIES; THEY COULD NOT CONTROL THEIR CHILDREN; THEY COULD
NOT APPEAL FROM THEIR MASTER; THEY COULD BE PUNISHED AT WILL."  W.
DUBOIS, BLACK RECONSTRUCTION IN AMERICA 10 (1964).  /1/ 

THE TRUE CURSE OF SLAVERY IS NOT WHAT IT DID TO THE BLACK MAN, BUT
WHAT IT HAS DONE TO THE WHITE MAN.  FOR THE EXISTENCE OF THE
INSTITUTION PRODUCED THE NOTION THAT THE WHITE MAN WAS OF SUPERIOR
CHARACTER, INTELLIGENCE, AND MORALITY.  THE BLACKS WERE LITTLE MORE
THAN LIVESTOCK-- TO BE FED AND FATTENED FOR THE ECONOMIC BENEFITS THEY
COULD BESTOW THROUGH THEIR LABORS, AND TO BE SUBJECTED TO AUTHORITY,
OFTEN WITH CRUELTY, TO MAKE CLEAR WHO WAS MASTER AND WHO SLAVE. 

SOME BADGES OF SLAVERY REMAIN TODAY.  WHILE THE INSTITUTION HAS BEEN
OUTLAWED, IT HAS REMAINED IN THE MINDS AND HEARTS OF MANY WHITE MEN. 
CASES WHICH HAVE COME TO THIS COURT DEPICT A SPECTACLE OF SLAVERY
UNWILLING TO DIE.  WE HAVE SEEN CONTRIVANCES BY STATES DESIGNED TO
THWART NEGRO VOTING, E.G., LANE V. WILSON, 307 U.S. 268.  NEGROES HAVE
BEEN EXCLUDED OVER AND AGAIN FROM JURIES SOLELY ON ACCOUNT OF THEIR
RACE, E.G., STRAUDER V. WEST VIRGINIA, 100 U.S. 303, OR HAVE BEEN
FORCED TO SIT IN SEGREGATED SEATS IN COURTROOMS, JOHNSON V. VIRGINIA,
373 U.S. 61.  THEY HAVE BEEN MADE TO ATTEND SEGREGATED AND INFERIOR
SCHOOLS, E.G., BROWN V. BOARD OF EDUCATION, 347 U.S. 483, OR BEEN
DENIED ENTRANCE TO COLLEGES OR GRADUATE SCHOOLS BECAUSE OF THEIR COLOR,
E.G., PENNSYLVANIA V. BOARD OF TRUSTS, 353 U.S. 230; SWEATT V. PAINTER,
339 U.S. 629.  NEGROES HAVE BEEN PROSECUTED FOR MARRYING WHITES, E.G.,
LOVING V. VIRGINIA, 388 U.S. 1.  THEY HAVE BEEN FORCED TO LIVE IN
SEGREGATED RESIDENTIAL DISTRICTS, BUCHANAN V. WARLEY, 245 U.S. 60, AND
RESIDENTS OF WHITE NEIGHBORHOODS HAVE DENIED THEM ENTRANCE, E.G.,
SHELLEY V. KRAEMER, 334 U.S. 1.  NEGROES HAVE BEEN FORCED TO USE
SEGREGATED FACILITIES IN GOING ABOUT THEIR DAILY LIVES, HAVING BEEN
EXCLUDED FROM RAILWAY COACHES, PLESSY V. FERGUSON, 163 U.S. 537; PUBLIC
PARKS, NEW ORLEANS PARK IMPROVEMENT ASSN. V. DETIEGE, 358 U.S. 54;
RESTAURANTS, LOMBARD V. LOUISIANA, 373 U.S. 267; PUBLIC BEACHES, MAYOR
OF BALTIMORE V. DAWSON, 350 U.S. 877; MUNICIPAL GOLF COURSE, HOLMES V.
CITY OF ATLANTA, 350 U.S. 879; AMUSEMENT PARKS, GRIFFIN V. MARYLAND,
378 U.S. 130; BUSES, GAYLE V. BROWDER, 352 U.S. 903; PUBLIC LIBRARIES,
BROWN V. LOUISIANA, 383 U.S. 131.  A STATE COURT JUDGE IN ALABAMA
CONVICTED A NEGRO WOMAN OF CONTEMPT OF COURT BECAUSE SHE REFUSED TO
ANSWER HIM WHEN HE ADDRESSED HER AS "MARY," ALTHOUGH SHE HAD MADE THE
SIMPLE REQUEST TO BE CALLED "MISS HAMILTON."  HAMILTON V. ALABAMA, 376
U.S. 650. 

THAT BRIEF SAMPLING OF DISCRIMINATORY PRACTICES, MANY OF WHICH
CONTINUE TODAY, STANDS ALMOST AS AN ANNOTATION TO WHAT FREDERICK
DOUGLASS (1817-1895) WROTE NEARLY A CENTURY EARLIER: 

     "OF ALL THE RACES AND VARIETIES OF MEN WHICH HAVE SUFFERED
FROM

  THIS FEELING, THE COLORED PEOPLE OF THIS COUNTRY HAVE ENDURED

  MOST.  THEY CAN RESORT TO NO DISGUISES WHICH WILL ENABLE THEM TO

  ESCAPE ITS DEADLY AIM.  THE CARRY IN FRONT THE EVIDENCE WHICH

  MARKS THEM FOR PERSECUTION.  THEY STAND AT THE EXTREME POINT OF

  DIFFERENCE FROM THE CAUCASIAN RACE, AND THEIR AFRICAN ORIGIN CAN

  BE INSTANTLY RECOGNIZED, THOUGH THEY MAY BE SEVERAL REMOVES FROM

  THE TYPICAL AFRICAN RACE.  THEY MAY REMONSTRATE LIKE SHYLOCK--

  'HATH NOT A JEW EYES?  HATH NOT A JEW HANDS, ORGANS, DIMENSIONS,

  SENSES, AFFECTIONS, PASSIONS?  FED WITH THE SAME FOOD, HURT WITH

  THE SAME WEAPONS, SUBJECT TO THE SAME DISEASES, HEALED BY THE

  SAME MEANS, WARMED AND COOLED BY THE SAME SUMMER AND WINTER, AS A

  CHRISTIAN IS?'-- BUT SUCH ELOQUENCE IS UNAVAILING.  THEY ARE

  NEGROES-- AND THAT IS ENOUGH, IN THE EYE OF THIS UNREASONING

  PREJUDICE, TO JUSTIFY INDIGNITY AND VIOLENCE.  IN NEARLY EVERY

DEPARTMENT OF AMERICAN LIFE THEY ARE CONFRONTED BY THIS INSIDIOUS

  INFLUENCE.  IT FILLS THE AIR.  IT MEETS THEM AT THE WORKSHIP AND

  FACTORY, WHEN THEY APPLY FOR WORK.  IT MEETS THEM AT THE CHURCH,

  AT THE HOTEL, AT THE BALLOT-BOX, AND WORST OF ALL, IT MEETS THEM

  IN THE JURY-BOX.  WITHOUT CRIME OR OFFENSE AGAINST LAW OR GOSPEL,

  THE COLORED MAN IS THE JEAN VALJEAN OF AMERICAN SOCIETY.  HE HAS

  ESCAPED FROM THE GALLEYS, AND HENCE ALL PRESUMPTIONS ARE AGAINST

HIM.  THE WORKSHOP DENIES HIM WORK, AND THE INN DENIES HIM

  SHELTER; THE BALLOT-BOX A FAIR VOTE, AND THE JURY-BOX A FAIR

  TRIAL.  HE HAS CEASED TO BE THE SLAVE OF AN INDIVIDUAL, BUT HAS

  IN SOME SENSE BECOME THE SLAVE OF SOCIETY.  HE MAY NOT NOW BE

  BOUGHT AND SOLD LIKE A BEAST IN THE MARKET, BUT HE IS THE

  TRAMMELED VICTIM OF A PREJUDICE, WELL CALCULATED TO REPRESS HIS

  MANLY AMBITION, PARALYZE HIS ENERGIES, AND MAKE HIM A DEJECTED

  AND SPIRITLESS MAN, IF NOT A SULLEN ENEMY TO SOCIETY, FIT TO PREY

  UPON LIFE AND PROPERTY AND TO MAKE TROUBLE GENERALLY."  /2/ 

TODAY THE BLACK IS PROTECTED BY A HOST OF CIVIL RIGHTS LAWS.  BUT
THE FORCES OF DISCRIMINATION ARE STILL STRONG. 

A MEMBER OF HIS RACE, DULY ELECTED BY THE PEOPLE TO A STATE
LEGISLATURE, IS BARRED FROM THAT ASSEMBLY BECAUSE OF HIS VIEWS ON THE
VIETNAM WAR.  BOND V. FLOYD, 385 U.S. 116. 

REAL ESTATE AGENTS USE ARTIFICE TO AVOID SELLING "WHITE PROPERTY" TO
THE BLACKS.  /3/  THE BLACKS WHO TRAVEL THE COUNTRY, THOUGH ENTITLED BY
LAW TO THE FACILITIES FOR SLEEPING AND DINING THAT ARE OFFERED ALL
TOURISTS, HEART OF ALTANTA MOTEL V. UNITED STATES, 379 U.S. 241, MAY
WELL LEARN THAT THE "VACANCY" SIGN DOES NOT MEAN WHAT IT SAYS,
ESPECIALLY IF THE MOTEL HAS A SWIMMING POOL. 

ON ENTERING A HALF-EMPTY RESTAURANT THEY MAY FIND "RESERVED" SIGNS
ON ALL UNOCCUPIED TABLES. 

THE BLACK IS OFTEN BARRED FROM A LABOR UNION BECAUSE OF HIS RACE. 
/4/ 

HE LEARNS THAT THE ORDER DIRECTING ADMISSION OF HIS CHILDREN INTO
WHITE SCHOOLS HAS NOT BEEN OBEYED "WITH ALL DELIBERATE SPEED," BROWN V.
BOARD OF EDUCATION, 349 U.S. 294, 301, BUT HAS BEEN DELAYED BY NUMEROUS
STRATAGEMS AND DEVICES.  /5/  STATE LAWS, AT TIMES, HAVE EVEN
ENCOURAGED DISCRIMINATION IN HOUSING.  REITMAN V. MULKEY, 387 U.S.
369. 

THIS RECITAL IS ENOUGH TO SHOW HOW PREJUDICES, ONCE PART AND PARCEL
OF SLAVERY, STILL PERSIST.  THE MEN WHO SAT IN CONGRESS IN 1866 WERE
TRYING TO REMOVE SOME OF THE BADGES OR "CUSTOMS"  /6/  OF SLAVERY WHEN
THEY ENACTED SEC. 1982.  AND, AS MY BROTHER STEWART SHOWS, THE CONGRESS
THAT PASSED THE SO-CALLED OPEN HOUSING ACT IN 1968 DID NOT UNDERCUT ANY
OF THE GROUNDS ON WHICH SEC. 1982 RESTS. 

/1/  THE CASES ARE COLLECTED IN FIVE VOLUMES IN H. CATTERALL,
JUDICIAL CASES CONCERNING AMERICAN SLAVERY AND THE NEGRO (1926-1937). 
AND SEE 1 T. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY, C. XIV
(1858); G. OSTRANDER, THE RIGHTS OF MAN IN AMERICA 1606-1861, P. 252
(1960); G. STROUD, SKETCH OF THE LAWS RELATING TO SLAVERY 45-50 (1827);
J. WHEELER, LAW OF SLAVERY 190-191 (1837). 

/2/  EXCERPT FROM FREDERICK DOUGLASS, THE COLOR LINE, THE NORTH
AMERICAN REVIEW, JUNE 1881, 4 THE LIFE AND WRITINGS OF FREDERICK
DOUGLASS 343-344 (1955). 

/3/  SEE KAMPER V. DEPARTMENT OF STATE OF NEW YORK, 22 N.Y.2D 690,
238 N.E.2D 914. 

/4/  SEE, E.G., O'HANLON, THE CASE AGAINST THE UNIONS, FORTUNE, JAN.
1968, AT 170. 

/5/  THE CONTRIVANCES WHICH SOME STATES HAVE CONCOCTED TO THWART THE
COMMAND OF OUR DECISION IN BROWN V. BOARD OF EDUCATION ARE BY NOW
LEGENDARY.  SEE, E.G., MONROE V. BOARD OF COMMISSIONERS, 391 U.S. 450
(TENNESSEE "FREE-TRANSFER" PLAN); GREEN V. COUNTY SCHOOL BOARD, 391
U.S. 430 (VIRGINIA SCHOOL BOARD "FREEDOM-OF-CHOICE" PLAN); BRADLEY V.
SCHOOL BOARD, 382 U.S. 103 (ALLOCATION OF FACULTY ALLEGEDLY ON A RACIAL
BASIS); GRIFFIN V. SCHOOL BOARD, 377 U.S 218 (CLOSING OF PUBLIC SCHOOLS
IN PRINCE EDWARD COUNTY, VIRGINIA, WITH TUITION GRANTS AND TAX
CONCESSIONS USED TO ASSIST WHITE CHILDREN ATTENDING PRIVATE SEGREGATED
SCHOOLS); GOSS V. BOARD OF EDUCATION, 373 U.S. 683 (TENNESSEE REZONING
OF SCHOOL DISTRICTS, WITH A TRANSFER PLAN PERMITTING TRANSFER BY
STUDENTS ON THE BASIS OF RACE); UNITED STATES V. JEFFERSON COUNTY BOARD
OF EDUCATION, 372 F.2D 836, AFF'D EN BANC, 380 F.2D 385 (C.A. 5TH CIR.
1967) ("FREEDOM-OF-CHOICE" PLANS IN STATES WITHIN THE JURISDICTION OF
THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT); NORTHCROSS
V. BOARD OF EDUCATION, 302 F.2D 818 (C.A. 6TH CIR. 1962) (TENNESSEE
PUPIL-ASSIGNMENT LAW); ORLEANS PARISH SCHOOL BOARD V. BUSH, 242 F.2D
156 (C.A. 5TH CIR. 1957) (LOUISIANA PUPIL-ASSIGNMENT LAW); HALL V. ST.
HELENA PARISH SCHOOL BOARD, 197 F.SUPP.  649 (D.C.E.D. LA. 1961),
AFF'D, 368 U.S. 515 (LOUISIANA LAW PERMITTING CLOSING OF PUBLIC
SCHOOLS, WITH EXTENSIVE STATE AID GOING TO PRIVATE SEGREGATED SCHOOLS);
HOLMES V. DANNER, 191 F.SUPP.  394 (D.C.M.D. GA. 1961) (GEORGIA STATUTE
CUTTING OFF STATE FUNDS IF NEGROES ADMITTED TO STATE UNIVERSITY); AARON
V. MCKINLEY, 173 F.SUPP.  944 (D.C.E.D. ARK. 1959), AFF'D SUB NOM.
FAUBUS V. AARON, 361 U.S. 197 (ARKANSAS STATUTE CUTTING OFF STATE FUNDS
TO INTEGRATED SCHOOL DISTRICTS); JAMES V. ALMOND, 170 F.SUPP.  331
(D.C.E.D. VA. 1959) (CLOSING OF ALL INTEGRATED PUBLIC SCHOOLS).  SEE
ALSO ROGERS V. PAUL, 382 U.S. 198; CALHOUN V. LATIMER, 377 U.S. 263;
COOPER V. AARON, 358 U.S. A. 

/6/  MY BROTHER HARLAN'S LISTING OF SOME OF THE "CUSTOMS" PREVAILING
IN THE NORTH AT THE TIME SEC. 1982 WAS FIRST ENACTED SHOWS THE EXTENT
OF ORGANIZED WHITE DISCRIMINATION AGAINST NEWLY FREED BLACKS.  AS HE
STATES, "(RESIDENTIAL SEGREGATION WAS THE PREVAILING PATTERN ALMOST
EVERYWHERE IN THE NORTH."  POST, AT 474-475.  CERTAINLY, THEN, IT WAS
"CUSTOMARY."  TO SUGGEST, HOWEVER, THAT THERE MIGHT BE ROOM FOR
ARGUMENT IN THIS CASE (POST, AT 475, N. 65) THAT THE DISCRIMINATION
AGAINST PETITIONERS WAS NOT IN SOME MEASURE A PART AND PRODUCT OF THIS
LONGSTANDING AND WIDESPREAD CUSTOMARY PATTERN IS TO PERVERT THE PROBLEM
BY ALLOWING THE LEGAL MIND TO DRAW LINES AND MAKE DISTINCTIONS THAT
HAVE NO PLACE IN THE JURISPRUDENCE OF A NATION STRIVING TO REJOIN THE
HUMAN RACE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

THE DECISION IN THIS CASE APPEARS TO ME TO BE MOST ILL-CONSIDERED
AND ILL-ADVISED. 

THE PETITIONERS ARGUE THAT THE RESPONDENTS' RACIALLY MOTIVATED
REFUSAL TO SELL THEM A HOUSE ENTITLES THEM TO JUDICIAL RELIEF ON TWO
SEPARATE GROUNDS.  FIRST, THEY CLAIM THAT THE RESPONDENTS ACTED IN
VIOLATION OF 42 U.S.C. 1982; SECOND, THEY ASSERT THAT THE RESPONDENTS'
CONDUCT AMOUNTED IN THE CIRCUMSTANCES TO "STATE ACTION"  /1/  AND WAS
THEREFORE FORBIDDEN BY THE FOURTEENTH AMENDMENT EVEN IN THE ABSENCE OF
ANY STATUTE.  THE COURT, WITHOUT REACHING THE SECOND GROUND ALLEGED,
HOLDS THAT THE PETITIONERS ARE ENTITLED TO RELIEF UNDER 42 U.S.C. 1982,
AND THAT SEC. 1982 IS CONSTITUTIONAL AS LEGISLATION APPROPRIATE TO
ENFORCE THE THIRTEENTH AMENDMENT. 

FOR REASONS WHICH FOLLOW, I BELIEVE THAT THE COURT'S CONSTRUCTION OF
SEC. 1982 AS APPLYING TO PURELY PRIVATE ACTION IS ALMOST SURELY WRONG,
AND AT THE LEAST IS OPEN TO SERIOUS DOUBT.  THE ISSUES OF THE
CONSTITUTIONALITY OF SEC. 1982, AS CONSTRUED BY THE COURT, AND OF
LIABILITY UNDER THE FOURTEENTH AMENDMENT ALONE, ALSO PRESENT FORMIDABLE
DIFFICULTIES.  MOREOVER, THE POLITICAL PROCESSES OF OUR OWN ERA HAVE,
SINCE THE DATE OF ORAL ARGUMENT IN THIS CASE, GIVEN BIRTH TO A CIVIL
RIGHTS STATUTE /2/  EMBODYING "FAIR HOUSING" PROVISIONS /3/  WHICH
WOULD AT THE END OF THIS YEAR MAKE AVAILABLE TO OTHERS, THOUGH
APPARENTLY NOT TO THE PETITIONERS THEMSELVES, /4/  THE TYPE OF RELIEF
WHICH THE PETITIONERS NOW SEEK.  IT SEEMS TO ME THAT THIS LETTER FACTOR
SO DIMINISHES THE PUBLIC IMPORTANCE OF THIS CASE THAT BY FAR THE WISEST
COURSE WOULD BE FOR THIS COURT TO REFRAIN FROM DECISION AND TO DISMISS
THE WRIT AS IMPROVIDENTLY GRANTED. 

        I.     I SHALL DEAL FIRST WITH THE COURT'S CONSTRUCTION OF
SEC. 1982, WHICH LIES AT THE HEART OF ITS OPINION.  THAT CONSTRUCTION
IS THAT THE STATUTE APPLIES TO PURELY PRIVATE AS WELL AS TO STATE
AUTHORIZED DISCRIMINATION. 

        A. 

THE COURT'S OPINION FOCUSES UPON THE STATUTE'S LEGISLATIVE HISTORY,
BUT IT IS WORTHY OF NOTE THAT THE PRECEDENTS IN THIS COURT ARE
DISTINCTLY OPPOSED TO THE COURT'S VIEW OF THE STATUTE. 

IN THE CIVIL RIGHTS CASES, 109 U.S. 3, DECIDED LESS THAN TWO DECADES
AFTER THE ENACTMENT OF THE CIVIL RIGHTS ACT OF 1866, FROM WHICH SEC.
1982 IS DERIVED, THE COURT SAID IN DICTUM OF THE 1866 ACT:  "THIS LAW
IS CLEARLY CORRECTIVE IN ITS CHARACTER, INTENDED TO COUNTERACT AND
FURNISH REDRESS AGAINST STATE LAWS AND PROCEEDINGS, AND CUSTOMS HAVING
THE FORCE OF LAW, WHICH SANCTION THE WRONGFUL ACTS SPECIFIED . . . .
THE CIVIL RIGHTS BILL HERE REFERRED TO IS ANALOGOUS IN ITS CHARACTER TO
WHAT A LAW WOULD HAVE BEEN UNDER THE ORIGINAL CONSTITUTION, DECLARING
THAT THE VALIDITY OF CONTRACTS SHOULD NOT BE IMPAIRED, AND THAT IF ANY
PERSON BOUND BY A CONTRACT SHOULD REFUSE TO COMPLY WITH IT, UNDER COLOR
OR PRETENCE THAT IT HAD BEEN RENDERED VOID OR INVALID BY A STATE LAW,
HE SHOULD BE LIABLE TO AN ACTION UPON IT IN THE COURTS OF THE UNITED
STATES, WITH THE ADDITION OF A PENALTY FOR SETTING UP SUCH AN UNJUST
AND UNCONSTITUTIONAL DEFENCE."  ID., AT 16-17.  /5/ IN CORRIGAN V.
BUCKLEY, 271 U.S. 323, THE QUESTION WAS WHETHER THE COURTS OF THE
DISTRICT OF COLUMBIA MIGHT ENJOIN PROSPECTIVE BREACHES OF RACIALLY
RESTRICTIVE COVENANTS.  THE COURT HELD THAT IT WAS WITHOUT JURISDICTION
TO CONSIDER THE PETITIONERS' ARGUMENT THAT THE COVENANT WAS VOID
BECAUSE IT CONTRAVENED THE FIFTH, THIRTEENTH, AND FOURTEENTH AMENDMENTS
AND THEIR IMPLEMENTING STATUTES.  THE COURT REASONED, INTER ALIA, THAT
THE STATUTES, INCLUDING THE IMMEDIATE PREDECESSOR OF SEC. 1982, /6/
WERE INAPPLICABLE BECAUSE 

"THEY, LIKE THE CONSTITUTIONAL AMENDMENT UNDER WHOSE SANCTION THEY
WERE ENACTED, DO NOT IN ANY MANNER PROHIBIT OR INVALIDATE CONTRACTS
ENTERED INTO BY PRIVATE INDIVIDUALS IN RESPECT TO THE CONTROL AND
DISPOSITION OF THEIR OWN PROPERTY."  ID., AT 331.  /7/ IN HURD V.
HODGE, 334 U.S. 24, THE ISSUE WAS AGAIN WHETHER THE COURTS OF THE
DISTRICT MIGHT ENFORCE RACIALLY RESTRICTIVE COVENANTS.  AT THE OUTSET
OF THE PROCESS OF REASONING BY WHICH IT HELD THAT JUDICIAL ENFORCEMENT
OF SUCH A COVENANT WOULD VIOLATE THE PREDECESSOR OF SEC. 1982, THE
COURT SAID: 

     "WE MAY START WITH THE PROPOSITION THAT THE STATUTE DOES NOT

  INVALIDATE PRIVATE RESTRICTIVE AGREEMENTS SO LONG AS THE PURPOSES

  OF THOSE AGREEMENTS ARE ACHIEVED BY THE PARTIES THROUGH VOLUNTARY

  ADHERENCE TO THE TERMS.  THE ACTION TOWARD WHICH THE PROVISIONS

  OF THE STATUTE UNDER CONSIDERATION IS (SIC) DIRECTED IS

  GOVERNMENTAL ACTION.  SUCH WAS THE HOLDING OF CORRIGAN V. BUCKLEY

  . . . ."  ID., AT 31.  /8/

        B. 

LIKE THE COURT, I BEGIN ANALYSIS OF SEC. 1982 BY EXAMINING ITS
LANGUAGE.  IN ITS PRESENT FORM, THE SECTION PROVIDES: 

     "ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT,

IN EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS

  THEREOF TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL

  AND PERSONAL PROPERTY." 

THE COURT FINDS IT "PLAIN AND UNAMBIGUOUS," ANTE, AT 420, THAT THIS
LANGUAGE FORBIDS PURELY PRIVATE AS WELL AS STATE-AUTHORIZED
DISCRIMINATION.  WITH ALL RESPECT, I DO NOT FIND IT SO.  FOR ME, THERE
IS AN INHERENT AMBIGUITY IN THE TERM "RIGHT," AS USED IN SEC. 1982. 
THE "RIGHT" REFERRED TO MAY EITHER BE A RIGHT TO EQUAL STATUS UNDER THE
LAW, IN WHICH CASE THE STATUTE OPERATES ONLY AGAINST STATE-SANCTIONED
DISCRIMINATION, OR IT MAY BE AN "ABSOLUTE" RIGHT ENFORCEABLE AGAINST
PRIVATE INDIVIDUALS.  TO ME, THE WORDS OF THE STATUTE, TAKEN ALONE,
SUGGEST THE FORMER INTERPRETATION, NOT THE LATTER.  /9/ 

FURTHER, SINCE INTERVENING REVISIONS HAVE NOT BEEN MEANT TO ALTER
SUBSTANCE, THE INTENDED MEANING OF SEC. 1982 MUST BE DRAWN FROM THE
WORDS IN WHICH IT WAS ORIGINALLY ENACTED.  SECTION 1982 ORIGINALLY WAS
A PART OF SEC. 1 OF THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27. 

     "THAT ALL PERSONS BORN IN THE UNITED STATES AND NOT SUBJECT TO

  ANY FOREIGN POWER . . . ARE HEREBY DECLARED TO BE CITIZENS OF THE

  UNITED STATES; AND SUCH CITIZENS, OF EVERY RACE AND COLOR . . . ,

  SHALL HAVE THE SAME RIGHT, IN EVERY STATE AND TERRITORY IN THE

  UNITED STATES, . . . TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND

  CONVEY REAL AND PERSONAL PROPERTY . . . AS IS ENJOYED BY WHITE

  CITIZENS, AND SHALL BE SUBJECT TO LIKE PUNISHMENT, PAINS, AND

  PENALTIES, AND TO NONE OTHER, ANY LAW, STATUTE, ORDINANCE,

  REGULATION, OR CUSTOM, TO THE CONTRARY NOTWITHSTANDING. 

     "SEC. 2.  THAT ANY PERSON WHO, UNDER COLOR OF ANY LAW,
STATUTE,

  ORDINANCE, REGULATION, OR CUSTOM, SHALL SUBJECT, OR CAUSE TO BE

  SUBJECTED, ANY INHABITANT OF ANY STATE OR TERRITORY TO THE

  DEPRIVATION OF ANY RIGHT SECURED OR PROTECTED BY THIS ACT . . .

  SHALL BE DEEMED GUILTY OF A MISDEMEANOR . . . ." 

IT SEEMS TO ME THAT THIS ORIGINAL WORDING INDICATES EVEN MORE STRONGLY
THAN THE PRESENT LANGUAGE THAT SEC. 1 OF THE ACT (AS WELL AS SEC. 2,
WHICH IS EXPLICITLY SO LIMITED) WAS INTENDED TO APPLY ONLY TO ACTION
TAKEN PURSUANT TO STATE OR COMMUNITY AUTHORITY, IN THE FORM OF A "LAW,
STATUTE, ORDINANCE, REGULATION, OR CUSTOM."  /10/  AND WITH DEFERENCE I
SUGGEST THAT THE LANGUAGE OF SEC. 2, TAKEN ALONE, NO MORE IMPLIES THAT
SEC. 2 "WAS CAREFULLY DRAFTED TO EXEMPT PRIVATE VIOLATIONS OF SEC. 1
FROM THE CRIMINAL SANCTIONS IT IMPOSED," SEE ANTE, AT 425, THAN IT DOES
THAT SEC. 2 WAS CAREFULLY DRAFTED TO ENFORCE ALL OF THE RIGHTS SECURED
BY SEC. 1. 

        C. 

THE COURT RESTS ITS OPINION CHIEFLY UPON THE LEGISLATIVE HISTORY OF
THE CIVIL RIGHTS ACT OF 1866.  I SHALL ENDEAVOR TO SHOW THAT THOSE
DEBATES DO NOT, AS THE COURT WOULD HAVE IT, OVERWHELMINGLY SUPPORT THE
RESULT REACHED BY THE COURT, AND IN FACT THAT A CONTRARY CONCLUSION MAY
EQUALLY WELL BE DRAWN.  I SHALL CONSIDER THE LEGISLATIVE HISTORY
LARGELY IN CHRONOLOGICAL SEQUENCE, DEALING SEPARATELY WITH THE SENATE
AND HOUSE DEBATES. 

THE FIRST SESSION OF THE THIRTY-NINTH CONGRESS MET ON DECEMBER 4,
1865, SOME SIX MONTHS AFTER THE PRECEDING CONGRESS HAD SENT TO THE
STATES THE THIRTEENTH AMENDMENT, AND A FEW DAYS BEFORE WORD WAS
RECEIVED OF THAT AMENDMENT'S RATIFICATION.  ON DECEMBER 13, SENATOR
WILSON INTRODUCED A BILL WHICH WOULD HAVE INVALIDATED ALL LAWS IN THE
FORMER REBEL STATES WHICH DISCRIMINATED AMONG PERSONS AS TO CIVIL
RIGHTS ON THE BASIS OF COLOR, AND WHICH WOULD HAVE MADE IT A
MISDEMEANOR TO ENACT OR ENFORCE SUCH A STATUTE.  /11/  ON THE SAME DAY,
SENATOR TRUMBULL SAID WITH REGARD TO SENATOR WILSON'S PROPOSAL: 

"THE BILL DOES NOT GO FAR ENOUGH, IF WHAT WE HAVE BEEN TOLD TO-DAY IN
REGARD TO THE TREATMENT OF FREEDMEN IN THE SOUTHERN STATES IS TRUE . .
. . (UNTIL (THE THIRTEENTH AMENDMENT) IS ADOPTED THERE MAY BE SOME
QUESTION . . . AS TO THE AUTHORITY OF CONGRESS TO PASS SUCH A BILL AS
THIS, BUT AFTER THE ADOPTION OF THE CONSTITUTIONAL AMENDMENT THERE CAN
BE NONE. 

     "THE SECOND CLAUSE OF THAT AMENDMENT WAS INSERTED FOR SOME

  PURPOSE, AND I WOULD LIKE TO KNOW . . . FOR WHAT PURPOSE?  SIR,

FOR THE PURPOSE, AND NONE OTHER, OF PREVENTING STATE LEGISLATURES

  FROM ENSLAVING, UNDER ANY PRETENSE, THOSE WHOM THE FIRST CLAUSE

  DECLARED SHOULD BE FREE."  /12/ 

SENATOR TRUMBULL THEN INDICATED THAT HE WOULD INTRODUCE SEPARATE
BILLS TO ENLARGE THE POWERS OF THE RECENTLY FOUNDED FREEDMEN'S BUREAU
AND TO SECURE THE FREEDMEN IN THEIR CIVIL RIGHTS, BOTH BILLS IN HIS
VIEW BEING AUTHORIZED BY THE SECOND CLAUSE OF THE THIRTEENTH
AMENDMENT.  /13/  SINCE HE HAD JUST STATED THAT THE PURPOSE OF THAT
CLAUSE WAS TO ENABLE CONGRESS TO NULLIFY ACTS OF THE STATE
LEGISLATURES, IT SEEMS INFERABLE THAT THIS WAS ALSO TO BE THE AIM OF
THE PROMISED BILLS. 

ON JANUARY 5, SENATOR TRUMBULL INTRODUCED BOTH THE FREEDMEN'S BILL
AND THE CIVIL RIGHTS BILL.  /14/  THE FREEDMEN'S BILL WOULD HAVE
STRENGTHENED GREATLY THE EXISTING SYSTEM BY WHICH AGENTS OF THE
FREEDMEN'S BUREAU EXERCISED PROTECTIVE SUPERVISION OVER FREEDMEN
WHEREVER THEY WERE PRESENT IN LARGE NUMBERS.  INTER ALIA, THE
FREEDMEN'S BILL WOULD HAVE PERMITTED THE PRESIDENT ACTING THROUGH THE
BUREAU, TO EXTEND "MILITARY PROTECTION AND JURISDICTION" OVER ALL CASES
IN WHICH PERSONS IN THE FORMER REBEL STATES WERE 

"IN CONSEQUENCE OF ANY STATE OR LOCAL LAW, ORDINANCE, POLICE OR
OTHER REGULATION, CUSTOM, OR PREJUDICE, (DENIED OR REFUSED) ANY OF THE
CIVIL RIGHTS OR IMMUNITIES BELONGING TO WHITE PERSONS, INCLUDING THE
RIGHT . . . TO INHERIT, PURCHASE, LEASE, SELL, HOLD AND CONVEY REAL AND
PERSONAL PROPERTY, . . . ON ACCOUNT OF RACE . . . ."  /15/ THE NEXT
FREEDMEN'S BUREAU MIGHT TRY AND CONVICT OF A MISDEMEANOR ANY PERSON WHO
DEPRIVED ANOTHER OF SUCH RIGHTS ON ACCOUNT OF RACE AND "UNDER COLOR OF
ANY STATE OR LOCAL LAW, ORDINANCE, POLICE, OR OTHER REGULATION OR
CUSTOM . . . ."  THUS, THE FREEDMEN'S BILL, WHICH WAS GENERALLY LIMITED
IN ITS APPLICATION TO THE SOUTHERN STATES AND WHICH WAS CORRESPONDINGLY
MORE SWEEPING IN ITS PROTECTION OF THE FREEDMEN THAT THE CIVIL RIGHTS
BILL, /16/  DEFINED BOTH THE RIGHTS SECURED AND THE DENIALS OF THOSE
RIGHTS WHICH WERE CRIMINALLY PUNISHABLE IN TERMS OF ACTS DONE UNDER THE
AEGIS OF A STATE OR LOCALITY.  THE ONLY SIGNIFICANT DISTINCTION WAS
THAT DENIALS WHICH OCCURRED "IN CONSEQUENCE OF A STATE OR LOCAL . . .
PREJUDICE" WOULD HAVE ENTITLED THE VICTIM TO MILITARY PROTECTION BUT
WOULD NOT HAVE BEEN CRIMINAL.  IN THE CORRESPONDING SECTION OF THE
COMPANION AND GENERALLY PARALLEL CIVIL RIGHTS BILL, WHICH WAS TO BE
EFFECTIVE THROUGHOUT THE NATION, THE REFERENCE TO "PREJUDICE" WAS
OMITTED FROM THE RIGHTS-DEFINING SECTION.  THIS WOULD SEEM TO IMPLY
THAT THE MORE WIDELY APPLICABLE CIVIL RIGHTS BILL WAS MEANT TO PROVIDE
PROTECTION ONLY AGAINST THOSE DISCRIMINATIONS WHICH WERE LEGITIMATED BY
A STATE OR COMMUNITY SANCTION SUFFICIENTLY POWERFUL TO DESERVE THE NAME
"CUSTOM." 

THE FORM OF THE FREEDMEN'S BILL ALSO UNDERCUTS THE COURT'S ARGUMENT,
ANTE, AT 424, THAT IF SEC. 1 OF THE CIVIL RIGHTS ACT WERE CONSTRUED AS
EXTENDING ONLY TO "STATE ACTION," THEN "MUCH OF SEC. 2 (WHICH CLEARLY
WAS SO LIMITED) WOULD HAVE MADE NO SENSE AT ALL."  FOR THE SIMILAR
STRUCTURE OF THE COMPANION FREEDMEN'S BILL, DRAFTED BY THE SAME HAND
AND LARGELY PARALLEL IN STRUCTURE, WOULD SEEM TO CONFIRM THAT THE
LIMITATION TO "STATE ACTION" WAS DELIBERATE. 

THE CIVIL RIGHTS BILL WAS DEBATED INTERMITTENTLY IN THE SENATE FROM
JANUARY 12, 1866, UNTIL ITS EVENTUAL PASSAGE OVER THE PRESIDENT'S VETO
ON APRIL 6.  IN THE COURSE OF THE DEBATES, SENATOR TRUMBULL, WHO WAS BY
FAR THE LEADING SPOKESMAN FOR THE BILL, MADE A NUMBER OF STATEMENTS
WHICH CAN ONLY BE TAKEN TO MEAN THAT THE BILL WAS AIMED AT "STATE
ACTION" ALONE.  FOR EXAMPLE, ON JANUARY 29, 1866, SENATOR TRUMBULL
BEGAN BY CITING A NUMBER OF RECENTLY ENACTED SOUTHERN LAWS DEPRIVING
MEN OF RIGHTS NAMED IN THE BILL.  HE STATED THAT "(THE PURPOSE OF THE
BILL UNDER CONSIDERATION IS TO DESTROY ALL THESE DISCRIMINATIONS, AND
CARRY INTO EFFECT THE CONSTITUTIONAL AMENDMENT."  /17/  LATER THE SAME
DAY, SENATOR TRUMBULL QUOTED SEC. 2 OF THE BILL IN FULL, AND SAID: 

"THIS IS THE VALUABLE SECTION OF THE BILL SO FAR AS PROTECTING

  THE RIGHTS OF FREEDMEN IS CONCERNED . . . . WHEN IT COMES TO BE

  UNDERSTOOD IN ALL PARTS OF THE UNITED STATES THAT ANY PERSON WHO

  SHALL DEPRIVE ANOTHER OF ANY RIGHT . . . IN CONSEQUENCE OF HIS

  COLOR OR RACE WILL EXPOSE HIMSELF TO FINE AND IMPRISONMENT, I

  THINK SUCH ACTS WILL SOON CEASE."  /18/

THESE WORDS CONTAIN NO HINT THAT THE "RIGHTS" PROTECTED BY SEC. 2 WERE
INTENDED TO BE ANY LESS BROAD THAN THOSE SECURED BY SEC. 1.  OF COURSE,
SEC. 2 PLAINLY EXTENDED ONLY TO "STATE ACTION."  THAT SENATOR TRUMBULL
VIEWED SECS. 1 AND 2 AS CO-EXTENSIVE APPEARS EVEN MORE CLEARLY FROM HIS
ANSWER THE FOLLOWING DAY WHEN ASKED BY SENATOR COWAN WHETHER THERE WAS
"NOT A PROVISION (IN THE BILL) BY WHICH STATE OFFICERS ARE TO BE
PUNISHED?"  SENATOR TRUMBULL REPLIED:  "NOT STATE OFFICERS ESPECIALLY,
BUT EVERYBODY WHO VIOLATES THE LAW.  IT IS THE INTENTION TO PUNISH
EVERYBODY WHO VIOLATES THE LAW."  /19/ 

ON JANUARY 29, SENATOR TRUMBULL ALSO UTTERED THE FIRST OF SEVERAL
REMARKABLY SIMILAR AND WHOLLY UNAMBIGUOUS STATEMENTS WHICH INDICATED
THAT THE BILL WAS AIMED ONLY AT "STATE "ACTION."  HE SAID: 

"(THIS BILL) MAY BE ASSAILED AS DRAWING TO THE FEDERAL GOVERNMENT
POWERS THAT PROPERLY BELONG TO 'STATES'; BUT I APPREHEND, RIGHTLY
CONSIDERED, IT IS NOT OBNOXIOUS TO THAT OBJECTION.  IT WILL HAVE NO
OPERATION IN ANY STATE WHERE THE LAWS ARE EQUAL, WHERE ALL PERSONS HAVE
THE SAME CIVIL RIGHTS WITHOUT REGARD TO COLOR OR RACE.  IT WILL HAVE NO
OPERATION IN THE STATE OF KENTUCKY WHEN HER SLAVE CODE AND ALL HER LAWS
DISCRIMINATING BETWEEN PERSONS ON ACCOUNT OF RACE OR COLOR SHALL BE
ABOLISHED."  /20/ SENATOR TRUMBULL SEVERAL TIMES REITERATED THIS VIEW. 
ON FEBRUARY 2, REPLYING TO SENATOR DAVIS OF KENTUCKY, HE SAID: 

"WHY, SIR, IF THE STATE OF KENTUCKY MAKES NO DISCRIMINATION IN CIVIL
RIGHTS BETWEEN ITS CITIZENS, THIS BILL HAS NO OPERATION WHATEVER IN THE
STATE OF KENTUCKY.  ARE ALL THE RIGHTS OF THE PEOPLE OF KENTUCKY GONE
BECAUSE THEY CANNOT DISCRIMINATE AND PUNISH ONE MAN FOR DOING A THING
THAT THEY DO NOT PUNISH ANOTHER FOR DOING?  THE BILL DRAWS TO THE
FEDERAL GOVERNMENT NO POWER WHATEVER IF THE STATES WILL PERFORM THEIR
CONSTITUTIONAL OBLIGATIONS."  /21/ ON APRIL 4, AFTER THE PRESIDENT'S
VETO OF THE BILL, SENATOR TRUMBULL STATED THAT "IF AN OFFENSE IS
COMMITTED AGAINST A COLORED PERSON SIMPLY BECAUSE HE IS COLORED, IN A
STATE WHERE THE LAW AFFORDS HIM THE SAME PROTECTION AS IF HE WERE
WHITE, THIS ACT NEITHER HAS NOR WAS INTENDED TO HAVE ANYTHING TO DO
WITH HIS CASE, BECAUSE HE HAS ADEQUATE REMEDIES IN THE STATE COURTS . .
. ."  /22/  LATER THE SAME DAY, HE SAID: 

     "THIS BILL IN NO MANNER INTERFERES WITH THE MUNICIPAL

  REGULATIONS OF ANY STATE WHICH PROTECTS ALL ALIKE IN THEIR RIGHTS

  OF PERSON AND PROPERTY.  IT COULD HAVE NO OPERATION IN

  MASSACHUSETTS, NEW YORK, ILLINOIS, OR MOST OF THE STATES OF THE

  UNION."  /23/ 

THE REMARKS JUST QUOTED CONSTITUTE THE PLAINEST POSSIBLE STATEMENT
THAT THE CIVIL RIGHTS BILL WAS INTENDED TO APPLY ONLY TO STATE
SANCTIONED CONDUCT AND NOT TO PURELY PRIVATE ACTION.  THE COURT HAS
ATTEMPTED TO NEGATE THE FORCE OF THESE STATEMENTS BY CITING OTHER
DECLARATIONS BY SENATOR TRUMBULL AND OTHERS THAT THE BILL WOULD OPERATE
EVERYWHERE IN THE COUNTRY.  SEE ANTE, AT 426, N. 35.  HOWEVER, THE
OBVIOUS AND NATURAL WAY TO RECONCILE THESE TWO SETS OF STATEMENTS IS TO
READ THE ONES ABOUT THE BILL'S NATIONWIDE APPLICATION AS DECLARATIONS
THAT THE ENACTMENT OF A RACIALLY DISCRIMINATORY LAW IN ANY STATE WOULD
BRING THE BILL INTO EFFECT THERE.  /24/  IT SEEMS TO ME THAT VERY GREAT
WEIGHT MUST BE GIVEN THESE STATEMENTS OF SENATOR TRUMBULL, FOR THEY
WERE CLEARLY MADE TO REASSURE NORTHERN AND BORDER STATE SENATORS ABOUT
THE EXTENT OF THE BILL'S OPERATION IN THEIR STATES. 

ON APRIL 4, SENATOR TRUMBULL GAVE TWO ADDITIONAL INDICATIONS THAT
THE BILL WAS INTENDED TO REACH ONLY STATE-SANCTIONED ACTION.  THE FIRST
OCCURRED DURING SENATOR TRUMBULL'S DEFENSE OF THE PART OF SEC. 3 OF THE
BILL WHICH GAVE FEDERAL COURTS JURISDICTION "OF ALL CAUSES, CIVIL AND
CRIMINAL, AFFECTING PERSONS WHO ARE DENIED OR CANNOT ENFORCE IN THE
COURTS . . . OF THE STATE OR LOCALITY WHERE THEY MAY BE ANY OF THE
RIGHTS SECURED TO THEM BY THE FIRST SECTION OF THIS ACT . . . ." 
SENATOR TRUMBULL SAID: 

     "IF IT BE NECESSARY IN ORDER TO PROTECT THE FREEDMAN IN HIS

  RIGHTS THAT HE SHOULD HAVE AUTHORITY TO GO INTO THE FEDERAL

  COURTS IN ALL CASES WHERE A CUSTOM PREVAILS IN A STATE, OR WHERE

  THERE IS A STATUTE-LAW OF THE STATE DISCRIMINATING AGAINST HIM, I

  THINK WE HAVE THE AUTHORITY TO CONFER THAT JURISDICTION UNDER THE

 SECOND CLAUSE OF THE (THIRTEENTH AMENDMENT)."  /25/

IF THE BILL HAD BEEN INTENDED TO REACH PURELY PRIVATE DISCRIMINATION IT
SEEMS VERY STRANGE THAT SENATOR TRUMBULL DID NOT THINK IT NECESSARY TO
DEFEND THE SURELY MORE DUBIOUS FEDERAL JURISDICTION OVER CASES
INVOLVING NO STATE ACTION WHATSOEVER.  A FEW MINUTES LATER, SENATOR
TRUMBULL REITERATED THAT HIS REASON FOR INTRODUCING THE CIVIL RIGHTS
BILL WAS TO BRING ABOUT "THE PASSAGE OF A LAW BY CONGRESS, SECURING
EQUALITY IN CIVIL RIGHTS WHEN DENIED BY STATE AUTHORITIES TO FREEDMENT
AND ALL OTHER INHABITANTS OF THE UNITED STATES . . . ."  /26/ 

THUS, THE SENATE DEBATES CONTAIN MANY EXPLICIT STATEMENTS BY THE
BILL'S OWN AUTHOR, TO WHOM THE SENATE NATURALLY LOOKED FOR AN
EXPLANATION OF ITS TERMS, INDICATING THAT THE BILL WOULD PROHIBIT ONLY
STATE-SANCTIONED DISCRIMINATION. 

THE COURT PUTS FORWARD IN SUPPORT OF ITS CONSTRUCTION AN IMPRESSIVE
NUMBER OF QUOTATIONS FROM AND CITATIONS TO THE SENATE DEBATES. 
HOWEVER, UPON MORE CIRCUMSPECT ANALYSIS THAN THE COURT HAS CHOSEN TO
GIVE, VIRTUALLY ALL OF THESE APPEAR TO BE EITHER IRRELEVANT OR EQUALLY
CONSISTENT WITH A "STATE ACTION" INTERPRETATION.  THE COURT'S MENTION,
ANTE, AT 427, OF A REFERENCE IN THE SENATE DEBATES TO "WHITE EMPLOYERS
WHO REFUSED TO PAY THEIR NEGRO WORKERS" SURELY DOES NOT MILITATE
AGAINST A "STATE ACTION" CONSTRUCTION, SINCE "STATE ACTION" WOULD
INCLUDE CONDUCT PURSUANT TO "CUSTOM," AND THERE WAS A VERY STRONG
"CUSTOM" OF REFUSING TO PAY SLAVES FOR WORK DONE.  THE COURT'S
CITATION, ANTE, AT 427-428, OF SENATE REFERENCES TO "WHITE CITIZENS WHO
ASSAULTED NEGROES" IS NOT IN POINT, FOR THE DEBATE CITED BY THE COURT
CONCERNED THE FREEDMEN'S BILL, NOT THE CIVIL RIGHTS BILL.  /27/  THE
FORMER BY ITS TERMS FORBADE DISCRIMINATION PURSUANT TO "PREJUDICE," AS
WELL AS "CUSTOM," AND IN ANY EVENT NEITHER BILL PROVIDED A REMEDY FOR
THE VICTIM OF A RACIALLY MOTIVATED ASSAULT.  /28/ 

THE COURT'S QUOTATION, ANTE, AT 429-430, OF SENATOR TRUMBULL'S
DECEMBER 13 REFERENCE TO THE THEN-EMBRYONIC CIVIL RIGHTS BILL IS ALSO
COMPATIBLE WITH A "STATE ACTION" INTERPRETATION, AT LEAST WHEN IT IS
RECALLED THAT THE UNEDITED QUOTATION, SEE SUPRA, AT 455, INCLUDES A
STATEMENT THAT THE SECOND CLAUSE OF THE THIRTEENTH AMENDMENT, THE
AUTHORITY FOR THE PROPOSED BILL, WAS INTENDED SOLELY AS A CHECK ON
STATE LEGISLATURES.  SENATOR TRUMBULL'S DECLARATION THE FOLLOWING DAY
THAT THE FORTHCOMING BILL WOULD BE AIMED AT DISCRIMINATION PURSUANT TO
"A PREVAILING PUBLIC SENTIMENT" AS WELL AS TO LEGISLATION, SEE ANTE, AT
431, IS ALSO CONSISTENT WITH A "STATE ACTION" READING OF THE BILL, FOR
THE BILL EXPLICITLY PROHIBITED ACTIONS DONE UNDER COLOR OF "CUSTOM" AS
WELL AS OF FORMAL LAWS. 

THE THREE ADDITIONAL STATEMENTS OF SENATOR TRUMBULL AND THE REMARKS
OF SENATORIAL OPPONENTS OF THE BILL, QUOTED BY THE COURT, ANTE, AT 431
433, TO SHOW THE BILL'S SWEEPING SCOPE, ARE ENTIRELY AMBIGUOUS AS TO
WHETHER THE SPEAKERS THOUGHT THE BILL PROHIBITED ONLY STATE-SANCTIONED
CONDUCT OR REACHED WHOLLY PRIVATE ACTION AS WELL.  INDEED, IF THE
BILL'S OPPONENTS THOUGHT THAT IT WOULD HAVE THE LATTER EFFECT, IT SEEMS
A LITTLE SURPRISING THAT THEY DID NOT OBJECT MORE STRENUOUSLY AND
EXPLICITLY.  /29/  THE REMARK OF SENATOR LANE WHICH IS QUOTED BY THE
COURT, ANTE, AT 433, TO PROVE THAT HE VIEWED THE BILL AS REACHING "'THE
WHITE MAN . . . (WHO) WOULD INVOKE THE POWER OF LOCAL PREJUDICE'
AGAINST THE NEGRO," SEEMS TO HAVE BEEN QUOTED OUT OF CONTEXT.  THE
QUOTATION IS TAKEN FROM A PART OF SENATOR LANE'S SPEECH IN WHICH HE
DEFENDED THE SECTION OF THE BILL PERMITTING THE PRESIDENT TO INVOKE
MILITARY AUTHORITY WHEN NECESSARY TO ENFORCE THE BILL.  AFTER NOTING
THAT THERE MIGHT BE OCCASIONS "(WHERE ORGANIZED RESISTANCE TO THE LEGAL
AUTHORITY ASSUMES THAT SHAPE THAT THE OFFICERS CANNOT EXECUTE A WRIT,"
/30/  SENATOR LANE CONCLUDED THAT "IF (THE WHITE MAN) WOULD INVOKE THE
POWER OF LOCAL PREJUDICE TO OVERRIDE THE LAWS OF THE COUNTRY, THIS IS
NO GOVERNMENT UNLESS THE MILITARY MAY BE CALLED IN TO ENFORCE THE ORDER
OF THE CIVIL COURTS AND OBEDIENCE TO THE LAWS OF THE COUNTRY."  /31/
IT SEEMS TO ME MANIFEST THAT, TAKEN IN CONTEXT, THIS REMARK IS BESIDE
THE POINT IN THIS CASE. 

THE POST-VETO REMARKS OF OPPONENTS OF THE BILL, CITED BY THE COURT,
ANTE, AT 435, ALSO ARE INCONCLUSIVE.  ONCE IT IS RECOGNIZED THAT THE
WORD "RIGHT" AS USED IN THE BILL IS AMBIGUOUS, THEN SENATOR COWAN'S
STATEMENT, ANTE, AT 435, THAT THE BILL WOULD CONFER "THE RIGHT . . . TO
PURCHASE . . . REAL ESTATE . . . WITHOUT ANY QUALIFICATION"  /32/  MUST
INEVITABLY SHARE THAT AMBIGUITY.  THE REMARKS OF SENATOR DAVIS, IBID.,
WITH RESPECT TO RENTAL OF HOTEL ROOMS AND SALE OF CHURCH PEWS ARE, WHEN
VIEWED IN CONTEXT, EVEN LESS HELPFUL TO THE COURT'S THESIS.  FOR THESE
COMMENTS WERE MADE IMMEDIATELY FOLLOWING SENATOR DAVIS' PLAINTIVE
ACKNOWLEDGMENT THAT "THIS MEASURE PROSCRIBES ALL DISCRIMINATIONS . . .
THAT MAY BE MADE . . . BY AN 'ORDINANCE, REGULATION, OR CUSTOM,'  AS
WELL AS BY 'LAW OR STATUTE.'"  /33/  SENATOR DAVIS THEN OBSERVED THAT
ORDINANCES, REGULATIONS, AND CUSTOMS PRESENTLY CONFERRED UPON WHITE
PERSONS THE MOST COMFORTABLE ACCOMMODATIONS IN SHIPS AND STEAMBOATS,
HOTELS, CHURCHES, AND RAILROAD CARS, AND STATED THAT "(THIS BILL . . .
DECLARES ALL PERSONS WHO ENFORCE THOSE DISTINCTIONS TO BE CRIMINALS
AGAINST THE UNITED STATES . . . ."  /34/  THUS, SENATOR DAVIS NOT ONLY
TIED THESE OBNOXIOUS EFFECTS OF THE BILL TO ITS "CUSTOMS" PROVISION BUT
ALLEGED THAT THEY WERE BROUGHT ABOUT BY SEC. 2 AS WELL AS SEC. 1. 
THERE IS LITTLE WONDER THAT HIS REMARKS "ELICITED NO REPLY," SEE IBID.,
FROM THE BILL'S SUPPORTERS. 

THE HOUSE DEBATES ARE EVEN FULLER OF STATEMENTS INDICATING THAT THE
CIVIL RIGHTS BILL WAS INTENDED TO REACH ONLY STATE-ENDORSED
DISCRIMINATION.  REPRESENTATIVE WILSON WAS THE BILL'S SPONSOR IN THE
HOUSE.  ON THE VERY FIRST DAY OF HOUSE DEBATE, MARCH 1, REPRESENTATIVE
WILSON SAID IN EXPLAINING THE BILL: 

"(IF THE STATES, SEEING THAT WE HAVE CITIZENS OF DIFFERENT RACES AND
COLORS, WOULD BUT SHUT THEIR EYES TO THESE DIFFERENCES AND LEGISLATE,
SO FAR AT LEAST AS REGARDS CIVIL RIGHTS AND IMMUNITIES, AS THOUGH ALL
CITIZENS WERE OF ONE RACE OR COLOR, OUR TROUBLES AS A NATION WOULD BE
WELL-NIGH OVER . . . . IT WILL BE OBSERVED THAT THE ENTIRE STRUCTURE OF
THIS BILL RESTS ON THE DISCRIMINATION RELATIVE TO CIVIL RIGHTS AND
IMMUNITIES MADE BY THE STATES ON 'ACCOUNT OF RACE, COLOR, OR PREVIOUS
CONDITION OF SLAVERY.'"  /35/ A FEW MINUTES LATER, REPRESENTATIVE
WILSON SAID: 

     "BEFORE OUR CONSTITUTION WAS FORMED, THE GREAT FUNDAMENTAL

  RIGHTS (WHICH ARE EMBODIED IN THIS BILL) BELONGED TO EVERY PERSON

  WHO BECAME A MEMBER OF OUR GREAT NATIONAL FAMILY . . . . THE

  ENTIRE MACHINERY OF GOVERNMENT . . . WAS DESIGNED, AMONG OTHER

  THINGS, TO SECURE A MORE PERFECT ENJOYMENT OF THESE RIGHTS . . .

  . I ASSERT THAT WE POSSESS THE POWER TO DO THOSE THINGS WHICH

GOVERNMENTS ARE ORGANIZED TO DO; THAT WE MAY PROTECT A CITIZEN OF

  THE UNITED STATES AGAINST A VIOLATION OF HIS RIGHTS BY THE LAW OF

  A SINGLE STATE; . . . THAT THIS POWER PERMEATES OUR WHOLE SYSTEM,

  IS A PART OF IT, WITHOUT WHICH THE STATES CAN RUN RIOT OVER EVERY

  FUNDAMENTAL RIGHT BELONGING TO CITIZENS OF THE UNITED STATES . .

  . ."  /36/

THESE STATEMENTS SURELY IMPLY THAT REPRESENTATIVE WILSON BELIEVED THE
BILL TO BE AIMED AT STATE-SANCTIONED DISCRIMINATION AND NOT AT PURELY
PRIVATE DISCRIMINATION, WHICH OF COURSE EXISTED UNHINDERED "(BEFORE OUR
CONSTITUTION WAS FORMED." 

OTHER CONGRESSMEN EXPRESSED SIMILAR VIEWS.  ON MARCH 2,
REPRESENTATIVE THAYER, ONE OF THE BILL'S SUPPORTERS, SAID: 

"THE EVENTS OF THE LAST FOUR YEARS . . . HAVE CHANGED (THE FREEDMEN)
FROM A CONDITION OF SLAVERY TO THAT OF FREEDOM.  THE PRACTICAL QUESTION
NOW TO BE DECIDED IS WHETHER THEY SHALL BE IN FACT FREEMEN.  IT IS
WHETHER THEY SHALL HAVE THE BENEFIT OF THIS GREAT CHARTER OR LIBERTY
GIVEN TO THEM BY THE AMERICAN PEOPLE. 

     "SIR, IF IT IS COMPETENT FOR THE NEW-FORMED LEGISLATURES OF
THE

 REBEL STATES TO ENACT LAWS . . . WHICH DECLARE, FOR EXAMPLE, THAT

  THEY SHALL NOT HAVE THE PRIVILEGE OF PURCHASING A HOME FOR

  THEMSELVES AND THEIR FAMILIES; . . . THEN I DEMAND TO KNOW, OF

  WHAT PRACTICAL VALUE IS THE AMENDMENT ABOLISHING SLAVERY . . . ?"

   /37/

A FEW MINUTES LATER, HE SAID: 

"DO YOU GIVE FREEDOM TO A MAN WHEN YOU ALLOW HIM TO BE DEPRIVED OF
THOSE GREAT NATURAL RIGHTS TO WHICH EVERY MAN IS ENTITLED BY NATURE?  .
. . (WHAT KIND OF FREEDOM IS THAT BY WHICH THE MAN PLACED IN A STATE OF
FREEDOM IS SUBJECT TO THE TYRANNY OF LAWS WHICH DEPRIVE HIM OF (THOSE)
RIGHTS . . . ?"  /38/ A LITTLE LATER, REPRESENTATIVE THAYER ADDED: 

     "(THE FREEDMEN) ARE ENTITLED TO THE BENEFIT OF THAT GUARANTEE

OF THE CONSTITUTION WHICH SECURES TO EVERY CITIZEN THE ENJOYMENT

  OF LIFE, LIBERTY, AND PROPERTY, AND NO JUST REASON EXISTS WHY

  THEY SHOULD NOT ENJOY THE PROTECTION OF THAT GUARANTEE . . . . 

      "WHAT IS THE NECESSITY WHICH GIVES OCCASION FOR THAT

  PROTECTION?  SIR, IN AT LEAST SIX OF THE LATELY REBELLIOUS STATES

  THE RECONSTRUCTED LEGISLATURES OF THOSE STATES HAVE ENACTED LAWS

  WHICH, IF PERMITTED TO BE ENFORCED, WOULD STRIKE A FATAL BLOW AT

  THE LIBERTY OF THE FREEDMEN . . . ."  /39/ 

AN OPPONENT OF THE BILL, REPRESENTATIVE BINGHAM, SAID ON MARCH 9: 

"(WHAT, THEN, IS PROPOSED BY THE PROVISION OF THE FIRST SECTION? 
SIMPLY TO STRIKE DOWN BY CONGRESSIONAL ENACTMENT EVERY STATE
CONSTITUTION WHICH MAKES A DISCRIMINATION ON ACCOUNT OF RACE OR COLOR
IN ANY OF THE CIVIL RIGHTS OF THE CITIZEN."  /40/ 

REPRESENTATIVE SHELLABARGER, A SUPPORTER OF THE BILL, DISCUSSED IT
ON THE SAME DAY.  HE BEGAN BY STATING THAT HE HAD NO DOUBT OF THE
CONSTITUTIONALITY OF SEC. 2 OF THE BILL, PROVIDED CONGRESS MIGHT ENACT
SEC. 1.  WITH RESPECT TO SEC. 1, HE SAID: 

"ITS WHOLE EFFECT IS NOT TO CONFER OR REGULATE RIGHTS, BUT TO
REQUIRE THAT WHATEVER OF THESE ENUMERATED RIGHTS AND OBLIGATIONS ARE
IMPOSED BY STATE LAWS SHALL BE FOR AND UPON ALL CITIZENS ALIKE . . . .
SELF-EVIDENTLY THIS IS THE WHOLE EFFECT OF THIS FIRST SECTION.  IT
SECURES . . . EQUALITY OF PROTECTION IN THOSE ENUMERATED CIVIL RIGHTS
WHICH THE STATES MAY DEEM PROPER TO CONFER UPON ANY RACES . . . . IT
MUST . . . BE NOTED THAT THE VIOLATIONS OF CITIZENS' RIGHTS, WHICH ARE
REACHED AND PUNISHED BY THIS BILL, ARE THOSE WHICH ARE INFLICTED UNDER
'COLOR OF LAW,'  &C.  THE BILL DOES NOT REACH MERE PRIVATE WRONGS, BUT
ONLY THOSE DONE UNDER COLOR OF STATE AUTHORITY . . . . (ITS WHOLE FORCE
IS EXPENDED IN DEFEATING AN ATTEMPT, UNDER STATE LAWS, TO DEPRIVE RACES
AND THE MEMBERS THEREOF AS SUCH OF THE RIGHTS ENUMERATED IN THIS ACT. 
THIS IS THE WHOLE OF IT."  /41/ THUS, REPRESENTATIVE SHELLABARGER SAID
IN SO MANY WORDS THAT THE BILL HAD NO IMPACT ON "MERE PRIVATE WRONGS." 

AFTER THE PRESIDENT'S VETO OF THE BILL, REPRESENTATIVE LAWRENCE, A
SUPPORTER, STATED HIS VIEWS.  HE SAID: 

     "THE BILL DOES NOT DECLARE WHO SHALL OR SHALL NOT HAVE THE

  RIGHT TO SUE, GIVE EVIDENCE, INHERIT, PURCHASE, AND SELL

  PROPERTY.  THESE QUESTIONS ARE LEFT TO THE STATES TO DETERMINE,

 SUBJECT ONLY TO THE LIMITATION THAT THERE ARE SOME INHERENT AND

  INALIENABLE RIGHTS PERTAINING TO EVERY CITIZEN, WHICH CANNOT BE

  ABOLISHED OR ABRIDGED BY STATE CONSTITUTIONS OR LAWS . . . .

     "NOW, THERE ARE TWO WAYS IN WHICH A STATE MAY UNDERTAKE TO

  DEPRIVE CITIZENS OF THESE . . . RIGHTS:  EITHER BY PROHIBITORY

  LAWS, OR BY A FAILURE TO PROTECT ANY ONE OF THEM. 

     "IF THE PEOPLE OF A STATE SHOULD BECOME HOSTILE TO A LARGE

  CLASS OF NATURALIZED CITIZENS AND SHOULD ENACT LAWS TO PROHIBIT

  THEM AND NO OTHER CITIZENS . . . FROM INHERITING, BUYING,

  HOLDING, OR SELLING PROPERTY, . . . THAT WOULD BE PROHIBITORY

  LEGISLATION.  IF THE STATE SHOULD SIMPLY ENACT LAWS FOR

  NATIVE-BORN CITIZENS AND PROVIDE NO LAW UNDER WHICH NATURALIZED

CITIZENS COULD ENJOY ANY ONE OF THESE RIGHTS, AND SHOULD DENY

  THEM ALL PROTECTION BY CIVIL PROCESS OR PENAL ENACTMENTS, THAT

  WOULD BE A DENIAL OF JUSTICE."  /42/

FROM THIS PASSAGE IT WOULD APPEAR THAT REPRESENTATIVE LAWRENCE
CONCEIVED OF THE WORD "RIGHT" IN SEC. 1 OF THE BILL AS REFERRING TO A
RIGHT TO EQUAL LEGAL STATUS, AND THAT HE BELIEVED THAT THE SOLE EFFECT
OF THE BILL WAS TO PROHIBIT STATE-IMPOSED DISCRIMINATION. 

THE COURT QUOTES AND CITES A NUMBER OF PASSAGES FROM THE HOUSE
DEBATES IN AID OF ITS CONSTRUCTION OF THE BILL.  AS IN THE CASE OF THE
SENATE DEBATES, MOST OF THESE APPEAR UPON CLOSE EXAMINATION TO PROVIDE
LITTLE SUPPORT.  THE FIRST SIGNIFICANT CITATION, ANTE, AT 425, N. 33,
IS A DIALOGUE BETWEEN REPRESENTATIVE WILSON AND REPRESENTATIVE LOAN,
ANOTHER OF THE BILL'S SUPPORTERS. 

THE FULL EXCHANGE WENT AS FOLLOWS: 

     "MR. LOAN.  MR. SPEAKER, I . . . ASK THE CHAIRMAN . . . WHY
THE

  COMMITTEE LIMIT THE PROVISIONS OF THE SECOND SECTION TO THOSE WHO

  ACT UNDER THE COLOR OF LAW.  WHY NOT LET THEM APPLY TO THE WHOLE

  COMMUNITY WHERE THE ACTS ARE COMMITTED? 

   "MR. WILSON, OF IOWA.  THAT GROWS OUT OF THE FACT THAT THERE IS

  DISCRIMINATION IN REFERENCE TO CIVIL RIGHTS UNDER THE LOCAL LAWS

  OF THE STATES.  THEREFORE WE PROVIDE THAT THE PERSONS WHO UNDER

  THE COLOR OF THESE LOCAL LAWS SHOULD DO THESE THINGS SHALL BE

  LIABLE TO THIS PUNISHMENT. 

     "MR. LOAN.  WHAT PENALTY IS IMPOSED UPON OTHERS THAN OFFICERS

  WHO INFLICT THESE WRONGS ON THE CITIZEN? 

    "MR. WILSON, OF IOWA.  WE ARE NOT MAKING A GENERAL CRIMINAL
CODE FOR THE STATES. 

     "MR. LOAN.  WHY NOT ABROGATE THOSE LAWS INSTEAD OF INFLICTING

  PENALTIES UPON OFFICERS WHO EXECUTE WRITS UNDER THEM? 

     "MR. WILSON, OF IOWA.  A LAW WITHOUT A SANCTION IS OF VERY
LITTLE FORCE. 

"MR. LOAN.  THEN WHY NOT PUT IT IN THE BILL DIRECTLY? 

 "MR. WILSON, OF IOWA.  THAT IS WHAT WE ARE TRYING TO DO."  /43/
THE INTERPRETATION WHICH THE COURT PLACES ON REPRESENTATIVE WILSON'S
REMARKS, SEE ANTE, AT 425, N. 33, IS A CONCEIVABLE ONE.  /44/  HOWEVER,
IT IS EQUALLY LIKELY THAT, SINCE BOTH PARTICIPANTS IN THE DIALOGUE
PROFESSED CONCERN SOLELY WITH SEC. 2 OF THE BILL, THEIR REMARKS CARRIED
NO IMPLICATION ABOUT THE SCOPE OF SEC. 1.  MOREOVER, IT IS POSSIBLE TO
READ THE ENTIRE EXCHANGE AS CONCERNED WITH DISCRIMINATION IN
COMMUNITIES HAVING DISCRIMINATORY LAWS, WITH REPRESENTATIVE LOAN URGING
THAT THE LAWS SHOULD BE ABROGATED DIRECTLY OR THAT ALL PERSONS, NOT
MERELY OFFICERS, WHO DISCRIMINATED PURSUANT TO THEM SHOULD BE
CRIMINALLY PUNISHABLE. 

THE NEXT SIGNIFICANT RELIANCE UPON THE HOUSE DEBATES IS THE COURT'S
MENTION OF REFERENCES IN THE DEBATES "TO WHITE EMPLOYERS WHO REFUSED TO
PAY THEIR NEGRO WORKERS, WHITE PLANTERS WHO AGREED AMONG THEMSELVES NOT
TO HIRE FREED SLAVES WITHOUT THE PERMISSION OF THEIR FORMER MASTERS,
WHITE CITIZENS WHO ASSAULTED NEGROES OR WHO COMBINED TO DRIVE THEM OUT
OF THEIR COMMUNITIES."  ANTE, AT 427-428.  /45/  (FOOTNOTES OMITTED.) 
AS WAS POINTED OUT IN THE DISCUSSION OF THE SENATE DEBATES, SUPRA, AT
462, THE REFERENCES TO WHITE MEN'S REFUSALS TO PAY FREEDMENT AND THEIR
AGREEMENTS NOT TO HIRE FREEDMEN WITHOUT THEIR "MASTERS'" CONSENT ARE BY
NO MEANS CONTRARY TO A "STATE ACTION" VIEW OF THE CIVIL RIGHTS BILL,
SINCE THE BILL EXPRESSLY FORBADE ACTION PURSUANT TO "CUSTOM" AND BOTH
OF THESE PRACTICES REFLECTED "CUSTOMS" FROM THE TIME OF SLAVERY.  THE
COURT CITES TWO DIFFERENT HOUSE REFERENCES TO ASSAULTS ON NEGROES BY
WHITES.  THE FIRST WAS BY CONGRESSMAN WINDOM, /46/  AND CLOSE
EXAMINATION REVEALS THAT HIS ONLY MENTION OF ASSAULTS WAS WITH REGARD
TO A TEXAS "PASS SYSTEM," UNDER WHICH FREEDMEN WERE WHIPPED IF FOUND
ABROAD WITHOUT PASSES, AND A SOUTH CAROLINA LAW PERMITTING FREEDMENT TO
BE WHIPPED FOR INSOLENCE.  /47/  SINCE THESE ASSAULTS WERE SANCTIONED
BY LAW, OR AT LEAST BY "CUSTOM," THEY WOULD BE REACHED BY THE BILL EVEN
UNDER A "STATE ACTION" INTERPRETATION.  THE OTHER ALLUSION TO ASSAULTS,
AS WELL AS THE MENTION OF COMBINATIONS OF WHITES TO DRIVE FREEDMENT
FROM COMMUNITIES, OCCURRED IN A SPEECH BY REPRESENTATIVE LAWRENCE. 
/48/  THESE REFERENCES WERE SHORTLY PRECEDED BY THE REMARKS OF
CONGRESSMAN LAWRENCE QUOTED, SUPRA, AT 468, AND WERE IMMEDIATELY
FOLLOWED BY HIS COMMENT THAT "IF STATES SHOULD UNDERTAKE TO AUTHORIZE
SUCH OFFENSES, OR DENY TO A CLASS OF CITIZENS ALL PROTECTION AGAINST
THEM, WE MAY THEN INQUIRE WHETHER THE NATION ITSELF MAY BE DESTROYED .
. . ."  /49/  THESE FORE AND AFT REMARKS IMPLY THAT CONGRESSMAN
LAWRENCE'S CONCERN WAS THAT THE ACTIVITES REFERRED TO WOULD RECEIVE
STATE SANCTION. 

THE COURT, ANTE, AT 428, N. 40, QUOTES A STATEMENT OF REPRESENTATIVE
ELDRIDGE, AN OPPONENT OF THE BILL, IN WHICH HE MENTIONED REFERENCES BY
THE BILL'S SUPPORTERS TO "INDIVIDUAL CASES OF WRONG PERPETRATED UPON
THE FREEDMEN OF THE SOUTH . . . ."  /50/  HOWEVER, UP TO THAT TIME
THERE HAD BEEN NO MENTION WHATEVER IN THE HOUSE DEBATES OF ANY PURELY
PRIVATE DISCRIMINATION, /51/  SO ONE CAN ONLY CONCLUDE THAT BY
"INDIVIDUAL CASES" REPRESENTATIVE ELDRIDGE MEANT "ISOLATED CASES," NOT
"CASES OF PURELY PRIVATE DISCRIMINATION." 

THE LAST SIGNIFICANT REFERENCE /52/  BY THE COURT TO THE HOUSE
DEBATES IS ITS STATEMENT, ANTE, AT 434, THAT "REPRESENTATIVE COOK OF
ILLINOIS THOUGHT THAT, WITHOUT APPROPRIATE FEDERAL LEGISLATION, ANY
'COMBINATION OF MEN IN (A) NEIGHBORHOOD (COULD) PREVENT (A NEGRO) FROM
HAVING ANY CHANCE' TO ENJOY" THE BENEFITS OF THE THIRTEENTH AMENDMENT. 
THIS QUOTATION SEEMS TO BE TAKEN OUT OF CONTEXT.  WHAT REPRESENTATIVE
COOK SAID WAS: 

"(WHEN THOSE RIGHTS WHICH ARE ENUMERATED IN THIS BILL ARE DENIED TO
ANY CLASS OF MEN ON ACCOUNT OF RACE OR COLOR, WHEN THEY ARE SUBJECT TO
A SYSTEM OF VAGRANT LAWS WHICH SELLS THEM INTO SLAVERY OR INVOLUNTARY
SERVITUDE, WHICH OPERATES UPON THEM AS UPON NO OTHER PART OF THE
COMMUNITY, THEY ARE NOT SECURED IN THE RIGHTS OF FREEDOM.  IF A MAN CAN
BE SOLD, THE MAN IS A SLAVE.  IF HE IS NOMINALLY FREED BY THE AMENDMENT
TO THE CONSTITUTION, . . . HE HAS SIMPLY THE LABOR OF HIS HANDS ON
WHICH HE CAN DEPEND.  ANY COMBINATION OF MEN IN HIS NEIGHBORHOOD CAN
PREVENT HIM FROM HAVING ANY CHANCE TO SUPPORT HIMSELF BY HIS LABOR. 
THEY CAN PASS A LAW THAT A MAN NOT SUPPORTING HIMSELF BY LABOR SHALL BE
DEEMED A VAGRANT, AND THAT A VAGRANT SHALL BE SOLD."  /53/ THESE
REMARKS CLEARLY WERE ADDRESSED TO DISCRIMINATIONS EFFECTUATED BY LAW,
OR SANCTIONED BY "CUSTOM."  AS SUCH, THEY WOULD HAVE BEEN REACHED BY
THE BILL EVEN UNDER A "STATE ACTION" INTERPRETATION. 

D. 

THE FOREGOING ANALYSIS OF THE LANGUAGE, STRUCTURE, AND LEGISLATIVE
HISTORY OF THE 1866 CIVIL RIGHTS ACT SHOWS, I BELIEVE, THAT THE COURT'S
THESIS THAT THE ACT WAS MEANT TO EXTEND TO PURELY PRIVATE ACTION IS
OPEN TO THE MOST SERIOUS DOUBT, IF INDEED IT DOES NOT RENDER THAT
THESIS WHOLLY UNTENABLE.  ANOTHER, ALBEIT LESS TANGIBLE, CONSIDERATION
POINTS IN THE SAME DIRECTION.  MANY OF THE LEGISLATORS WHO TOOK PART IN
THE CONGRESSIONAL DEBATES INEVITABLY MUST HAVE SHARED THE
INDIVIDUALISTIC ETHIC OF THEIR TIME, WHICH EMPHASIZED PERSONAL FREEDOM
/54/  AND EMBODIED A DISTASTE FOR GOVERNMENTAL INTERFERENCE WHICH WAS
SOON TO CULMINATE IN THE ERA OF LAISSEZ-FAIRE.  /55/  IT SEEMS TO ME
THAT MOST OF THESE MEN WOULD HAVE REGARDED IT AS A GREAT INTRUSION ON
INDIVIDUAL LIBERTY FOR THE GOVERNMENT TO TAKE FROM A MAN THE POWER TO
REFUSE FOR PERSONAL REASONS TO ENTER INTO A PURELY PRIVATE TRANSACTION
INVOLVING THE DISPOSITION OF PROPERTY, ALBEIT THOSE PERSONAL REASONS
MIGHT REFLECT RACIAL BIAS.  IT SHOULD BE REMEMBERED THAT RACIAL
PREJUDICE WAS NOT UNCOMMON IN 1866, EVEN OUTSIDE THE SOUTH.  /56/
ALTHOUGH MASSACHUSETTS HAD RECENTLY ENACTED THE NATION'S FIRST LAW
PROHIBITING RACIAL DISCRIMINATION IN PUBLIC ACCOMMODATIONS, /57/
NEGROES COULD NOT RIDE WITHIN PHILADELPHIA STREETCARS /58/  OR ATTEND
PUBLIC SCHOOLS WITH WHITE CHILDREN IN NEW YORK CITY.  /59/  ONLY FIVE
STATES ACCORDED EQUAL VOTING RIGHTS TO NEGROES, /60/  AND IT APPEARS
THAT NEGROES WERE ALLOWED TO SERVIE ON JURIES ONLY IN MASSACHUSETTS. 
/61/  RESIDENTIAL SEGREGATION WAS THE PREVAILING PATTERN ALMOST
EVERYWHERE IN THE NORTH.  /62/  THERE WERE NO STATE "FAIR HOUSING" LAWS
IN 1866, AND IT APPEARS THAT NONE HAD EVER BEEN PROPOSED.  /63/  IN
THIS HISTORICAL CONTEXT, I CANNOT CONCEIVE THAT A BILL THOUGHT TO
PROHIBIT PURELY PRIVATE DISCRIMINATION NOT ONLY IN THE SALE OR RENTAL
OF HOUSING BUT IN ALL PROPERTY TRANSACTIONS WOULD NOT HAVE RECEIVED A
GREAT DEAL OF CRITICISM EXPLICITLY DIRECTED TO THIS FEATURE.  THE FACT
THAT THE 1866 ACT RECEIVED NO CRITICISM OF THIS KIND /64/  IS FOR ME
STRONG ADDITIONAL EVIDENCE THAT IT WAS NOT REGARDED AS EXTENDING SO
FAR. 

IN SUM, THE MOST WHICH CAN BE SAID WITH ASSURANCE ABOUT THE INTENDED
IMPACT OF THE 1866 CIVIL RIGHTS ACT UPON PURELY PRIVATE DISCRIMINATION
IS THAT THE ACT PROBABLY WAS ENVISIONED BY MOST MEMBERS OF CONGRESS AS
PROHIBITING OFFICIAL, COMMUNITY-SANCTIONED DISCRIMINATION IN THE SOUTH,
ENGAGED IN PURSUANT TO LOCAL "CUSTOMS" WHICH IN THE RECENT TIME OF
SLAVERY PROBABLY WERE EMBODIED IN LAWS OR REGULATIONS.  /65/  ACTS DONE
UNDER THE COLOR OF SUCH "CUSTOMS" WERE, OF COURSE, SAID BY THE COURT IN
THE CIVIL RIGHTS CASES, 109 U.S. 3, TO CONSTITUTE "STATE ACTION"
PROHIBITED BY THE FOURTEENTH AMENDMENT.  SEE ID., AT 16, 17, 21. 
ADOPTION OF A "STATE ACTION" CONSTRUCTION OF THE CIVIL RIGHTS ACT WOULD
THEREFORE HAVE THE ADDITIONAL MERIT OF BRINGING ITS INTERPRETATION INTO
LINE WITH THAT OF THE FOURTEENTH AMENDMENT, WHICH THIS COURT HAS
CONSISTENTLY HELD TO REACH ONLY "STATE ACTION."  THIS SEEMS ESPECIALLY
DESIRABLE IN LIGHT OF THE WIDE AGREEMENT THAT A MAJOR PURPOSE OF THE
FOURTEENTH AMENDMENT, AT LEAST IN THE MINDS OF ITS CONGRESSIONAL
PROPONENTS, WAS TO ASSURE THAT THE RIGHTS CONFERRED BY THE THEN
RECENTLY ENACTED CIVIL RIGHTS ACT COULD NOT BE TAKEN AWAY BY A
SUBSEQUENT CONGRESS.  /66/

        II. 

THE FOREGOING, I THINK, AMPLY DEMONSTRATES THAT THE COURT HAS CHOSEN
TO RESOLVE THIS CASE BY ACCORDING TO A LOOSELY WORDED STATUTE A MEANING
WHICH IS OPEN TO THE STRONGEST CHALLENGE IN LIGHT OF THE STATUTE'S
LEGISLATIVE HISTORY.  IN HOLDING THAT THE THIRTEENTH AMENDMENT IS
SUFFICIENT CONSTITUTIONAL AUTHORITY FOR SEC. 1982 AS INTERPRETED, THE
COURT ALSO DECIDES A QUESTION OF GREAT IMPORTANCE.  EVEN CONTEMPORARY
SUPPORTERS OF THE AIMS OF THE 1866 CIVIL RIGHTS ACT DOUBTED THAT THOSE
GOALS COULD CONSTITUTIONALLY BE ACHIEVED UNDER THE THIRTEENTH
AMENDMENT, /67/  AND THIS COURT HAS TWICE EXPRESSED SIMILAR DOUBTS. 
SEE HODGES V. UNITED STATES, 203 U.S. 1, 16-18; CORRIGAN V. BUCKLEY,
271 U.S. 323, 330.  BUT CF. CIVIL RIGHTS CASES, 109 U.S. 3, 22.  THUS,
IT IS PLAIN THAT THE COURSE OF DECISION FOLLOWED BY THE COURT TODAY
ENTAILS THE RESOLUTION OF IMPORTANT AND DIFFICULT ISSUES.     THE ONLY
APPARENT WAY OF DECIDING THIS CASE WITHOUT REACHING THOSE ISSUES WOULD
BE TO HOLD THAT THE PETITIONERS ARE ENTITLED TO RELIEF ON THE
ALTERNATIVE GROUND ADVANCED BY THEM:  THAT THE RESPONDENTS' CONDUCT
AMOUNTED TO "STATE ACTION" FORBIDDEN BY THE FOURTEENTH AMENDMENT. 
HOWEVER, THAT ROUTE IS NOT WITHOUT FORMIDABLE OBSTACLES OF ITS OWN, FOR
THE OPINION OF THE COURT OF APPEALS MAKES IT CLEAR THAT THIS CASE
DIFFERS SUBSTANTIALLY FROM ANY "STATE ACTION" CASE PREVIOUSLY DECIDED
BY THIS COURT.  SEE 379 F.2D,AT 40-45. 

THE FACT THAT A CASE IS "HARD" DOES NOT, OF COURSE, RELIEVE A JUDGE
OF HIS DUTY TO DECIDE IT.  SINCE, THE COURT DID VOTE TO HEAR THIS CASE,
I NORMALLY WOULD CONSIDER MYSELF OBLIGATED TO DECIDE WHETHER THE
PETITIONERS ARE ENTITLED TO RELIEF ON EITHER OF THE GROUNDS ON WHICH
THEY RELY.  AFTER MATURE REFLECTION, HOWEVER, I HAVE CONCLUDED THAT
THIS IS ONE OF THOSE RARE INSTANCES IN WHICH AN EVENT WHICH OCCURS
AFTER THE HEARING OF ARGUMENT SO DIMINISHES A CASE'S PUBLIC
SIGNIFICANCE, WHEN VIEWED IN LIGHT OF THE DIFFICULTY OF THE QUESTIONS
PRESENTED, AS TO JUSTIFY THIS COURT IN DISMISSING THE WRIT AS
IMPROVIDENTLY GRANTED. 

THE OCCURRENCE TO WHICH I REFER IS THE RECENT ENACTMENT OF THE CIVIL
RIGHTS ACT OF 1968, PUB. L. 90-284, 82 STAT. 73.  TITLE VIII OF THAT
ACT CONTAINS COMPREHENSIVE "FAIR HOUSING" PROVISIONS, WHICH BY THE
TERMS OF SEC. 803 WILL BECOME APPLICABLE ON JANUARY 1, 1969, TO PERSONS
WHO, LIKE THE PETITIONERS, ATTEMPT TO BUY HOUSES FROM DEVELOPERS. 
UNDER THOSE PROVISIONS, SUCH PERSONS WILL BE ENTITLED TO INJUNCTIVE
RELIEF AND DAMAGES FROM DEVELOPERS WHO REFUSE TO SELL THEM ON ACCOUNT
OF RACE OR COLOR, UNLESS THE PARTIES ARE ABLE TO RESOLVE THEIR DISPUTE
BY OTHER MEANS.  THUS, THE TYPE OF RELIEF WHICH THE PETITIONERS SEEK
WILL BE AVAILABLE WITHIN SEVEN MONTHS' TIME UNDER THE TERMS OF A
PRESUMPTIVELY CONSTITUTIONAL ACT OF CONGRESS.  /68/  IN THESE
CIRCUMSTANCES, IT SEEMS OBVIOUS THAT THE CASE HAS LOST MOST OF ITS
PUBLIC IMPORTANCE, AND I BELIEVE THAT IT WOULD BE MUCH THE WISER COURSE
FOR THIS COURT TO REFRAIN FROM DECIDING IT.  I THINK IT PARTICULARLY
UNFORTUNATE FOR THE COURT TO PERSIST IN DECIDING THIS CASE ON THE BASIS
OF A HIGHLY QUESTIONABLE INTERPRETATION OF A SWEEPING, CENTURY-OLD
STATUTE WHICH, AS THE COURT ACKNOWLEDGES, SEE ANTE, AT 415, CONTAINS
NONE OF THE EXEMPTIONS WHICH THE CONGRESS OF OUR OWN TIME FOUND IT
NECESSARY TO INCLUDE IN A STATUTE REGULATING RELATIONSHIPS SO PERSONAL
IN NATURE.  IN EFFECT, THIS COURT, BY ITS CONSTRUCTION OF SEC. 1982,
HAS EXTENDED THE COVERAGE OF FEDERAL "FAIR HOUSING" LAWS FAR BEYOND
THAT WHICH CONGRESS IN ITS WISDOM CHOSE TO PROVIDE IN THE CIVIL RIGHTS
ACT OF 1968.  THE POLITICAL PROCESS NOW HAVING TAKEN HOLD AGAIN IN THIS
VERY FIELD, I AM AT A LOSS TO UNDERSTAND WHY THE COURT SHOULD HAVE
DEEMED IT APPROPRIATE OR, IN THE CIRCUMSTANCES OF THIS CASE, NECESSARY
TO PROCEED WITH SUCH PRECIPITATE AND INSECURE STRIDES. 

I AM NOT DISSUADED FROM MY VIEW BY THE CIRCUMSTANCE THAT THE 1968
ACT WAS ENACTED AFTER ORAL ARGUMENT IN THIS CASE, AT A TIME WHEN THE
PARTIES AND AMICI CURIAE HAD INVESTED TIME AND MONEY IN ANTICIPATION OF
A DECISION ON THE MERITS, OR BY THE FACT THAT THE 1968 ACT APPARENTLY
WILL NOT ENTITLE THESE PETITIONERS TO THE RELIEF WHICH THEY SEEK.  /69/
FOR THE CERTIORARI JURISDICTION WAS NOT CONFERRED UPON THIS COURT
"MERELY TO GIVE THE DEFEATED PARTY IN THE . . . COURT OF APPEALS
ANOTHER HEARING," MAGNUM CO. V. COTY, 262 U.S. 159, 163, OR "FOR THE
BENEFIT OF THE PARTICULAR LITIGANTS," RICE V. SIOUX CITY CEMETERY, 349
U.S. 70, 74, BUT TO DECIDE ISSUES, "THE SETTLEMENT OF WHICH IS OF
IMPORTANCE TO THE PUBLIC AS DISTINGUISHED FROM . . . THE PARTIES,"
LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, INC., 261 U.S. 387, 393.  I
DEEM IT FAR MORE IMPORTANT THAT THIS COURT SHOULD AVOID, IF POSSIBLE,
THE DECISION OF CONSTITUTIONAL AND UNUSUALLY DIFFICULT STATUTORY
QUESTIONS THAN THAT WE FULFILL THE EXPECTATIONS OF EVERY LITIGANT WHO
APPEARS BEFORE US. 

ONE PRIOR DECISION OF THIS COURT ESPECIALLY SUGGESTS DISMISSAL OF
THE WRIT AS THE PROPER COURSE IN THESE UNUSUAL CIRCUMSTANCES.  IN RICE
V. SIOUX CITY CEMETERY, SUPRA, THE ISSUE WAS WHETHER A PRIVATELY OWNED
CEMETERY MIGHT DEFEND A SUIT FOR BREACH OF A CONTRACT TO BURY ON THE
GROUND THAT THE DECEDENT WAS A WINNEBAGO INDIAN AND THE CONTRACT
RESTRICTED BURIAL PRIVILEGES TO CAUCASIANS.  IN CONSIDERING A PETITION
FOR REHEARING FOLLOWING AN INITIAL AFFIRMANCE BY AN EQUALLY DIVIDED
COURT, THERE CAME TO THE COURT'S ATTENTION FOR THE FIRST TIME AN IOWA
STATUTE WHICH PROHIBITED CEMETERIES FROM DISCRIMINATING ON ACCOUNT OF
RACE, BUT WHICH WOULD NOT HAVE BENEFITED THE RICE PETITIONER BECAUSE OF
AN EXCEPTION FOR "PENDING LITIGATION."  MR. JUSTICE FRANKFURTER,
SPEAKING FOR A MAJORITY OF THE COURT HELD THAT THE WRIT SHOULD BE
DISMISSED.  HE POINTED OUT THAT THE CASE PRESENTED "EVIDENT
DIFFICULTIES," 349 U.S.,AT 77, AND NOTED THAT "(HAD THE STATUTE BEEN
PROPERLY BROUGHT TO OUR ATTENTION . . . , THE CASE WOULD HAVE ASSUMED
SUCH AN ISOLATED SIGNIFICANCE THAT IT WOULD HARDLY HAVE BEEN BROUGHT
HERE IN THE FIRST INSTANCE."  ID., AT 76-77.  THIS CASE CERTAINLY
PRESENTS DIFFICULTIES AS SUBSTANTIAL AS THOSE IN RICE.  COMPARE WHAT
HAS BEEN SAID IN THIS OPINION WITH 349 U.S.,AT 72-73; SEE ALSO BELL V.
MARYLAND, 378 U.S. 226.  AND IF THE PETITION FOR A WRIT OF CERTIORARI
IN THIS CASE HAD BEEN FILED A FEW MONTHS AFTER, RATHER THAN A FEW
MONTHS BEFORE, THE PASSAGE OF THE 1968 CIVIL RIGHTS ACT, I VENTURE TO
SAY THAT THE CASE WOULD HAVE BEEN DEEMED TO POSSESS SUCH "ISOLATED
SIGNIFICANCE," IN COMPARISON WITH ITS DIFFICULTIES, THAT THE PETITION
WOULD NOT HAVE BEEN GRANTED. 

FOR THESE REASONS, I WOULD DISMISS THE WRIT OF CERTIORARI AS
IMPROVIDENTLY GRANTED. 

/1/  THIS "STATE ACTION" ARGUMENT EMPHASIZES THE RESPONDENTS' ROLE
AS HOUSING DEVELOPERS EXERCISING CONTINUING AUTHORITY OVER A SUBURBAN
HOUSING COMPLEX WITH ABOUT 1,000 INHABITANTS. 

/2/  THE CIVIL RIGHTS ACT OF 1968, PUB. L. 90-284, 82 STAT. 73. 

/3/  ID., SECS. 801-819. 

/4/  SEE ANTE, AT 417, N. 21. 

/5/  SEE ALSO VIRGINIA V. RIVES, 100 U.S. 313, 317-318. 

/6/  SECTION 1978 OF THE REVISED STATUTES. 

/7/  SEE ALSO BUCHANAN V. WARLEY, 245 U.S. 60, 78-79. 

/8/  IT SEEMS TO ME THAT THIS PASSAGE IS NOT DICTUM, AS THE COURT
TERMS IT, ANTE, AT 419 AND N. 25, BUT A HOLDING.  FOR IF THE COURT HAD
HELD THE COVENANTS IN QUESTION INVALID AS BETWEEN THE PARTIES, THEN IT
WOULD NOT HAVE HAD TO RELY UPON A FINDING OF "STATE ACTION." 

/9/  DESPITE THE COURT'S VIEW THAT THIS READING FLIES IN THE FACT OF
THE "PLAIN AND UNAMBIGUOUS TERMS" OF THE STATUTE, SEE ANTE, AT 420, IT
IS NOT WITHOUT PRECEDENT.  IN THE CIVIL RIGHTS CASES, 109 U.S. 3, THE
COURT SAID OF IDENTICAL LANGUAGE IN THE PREDECESSOR STATUTE TO SEC.
1982: "(CIVIL RIGHTS, SUCH AS ARE GUARANTEED BY THE CONSTITUTION
AGAINST STATE AGGRESSION, CANNOT BE IMPAIRED BY THE WRONGFUL ACTS OF
INDIVIDUALS, UNSUPPORTED BY STATE AUTHORITY . . . . THE WRONGFUL ACT OF
AN INDIVIDUAL, UNSUPPORTED BY ANY SUCH AUTHORITY, IS SIMPLY A PRIVATE
WRONG, OR A CRIME OF THAT INDIVIDUAL; AN INVASION OF THE RIGHTS OF THE
INJURED PARTY, IT IS TRUE . . .; BUT IF NOT SANCTIONED IN SOME WAY BY
THE STATE, OR NOT DONE UNDER STATE AUTHORITY, HIS RIGHTS REMAIN IN FULL
FORCE, AND MAY PRESUMABLY BE VINDICATED BY RESORT TO THE LAWS OF THE
STATE FOR REDRESS.  AN INDIVIDUAL CANNOT DEPRIVE A MAN OF HIS RIGHT . .
. TO HOLD PROPERTY, TO BUY AND SELL . . .; HE MAY, BY FORCE OR FRAUD,
INTERFERE WITH THE ENJOYMENT OF THE RIGHT IN A PARTICULAR CASE; . . .
BUT, UNLESS PROTECTED IN THESE WRONGFUL ACTS BY SOME SHIELD OF STATE
LAW OR STATE AUTHORITY, HE CANNOT DESTROY OR INJURE THE RIGHT . . . ." 
109 U.S., AT 17. 

/10/  THE COURT DOES NOT CLAIM THAT THE DELETION FROM SEC. 1 OF THE
STATUTE, IN 1874, OF THE WORDS "ANY LAW, STATUTE, ORDINANCE,
REGULATION, OR CUSTOM, TO THE CONTRARY NOTWITHSTANDING" WAS INTENDED TO
HAVE ANY SUBSTANTIVE EFFECT.  SEE ANTE, AT 422, N. 29. 

/11/  SEE CONG. GLOBE, 39TH CONG., 1ST SESS., 39-42. 

/12/  ID., AT 43. 

/13/  SEE IBID. 

/14/  SEE CONG. GLOBE, 39TH CONG., 1ST SESS., 129. 

/15/  FREEDMEN'S BILL, SEC. 7.  THE TEXT OF THE BILL MAY BE FOUND IN
E. MCPHERSON, THE POLITICAL HISTORY OF THE UNITED STATES OF AMERICA
DURING THE PERIOD OF RECONSTRUCTION 72 (1871).  THE FREEDMEN'S BILL WAS
PASSED BY BOTH THE SENATE AND THE HOUSE, BUT THE SENATE FAILED TO
OVERRIDE THE PRESIDENT'S VETO.  SEE CONG. GLOBE, 39TH CONG., 1ST SESS.,
421, 688, 742, 748, 775, 915-916, 943. 

/16/  SECTION 7 OF THE FREEDMEN'S BILL WOULD HAVE PERMITTED THE
PRESIDENT TO EXTEND "MILITARY PROTECTION AND JURISDICTION" OVER ALL
CASES IN WHICH THE SPECIFIED RIGHTS WERE DENIED, WHILE SEC. 3 OF THE
CIVIL RIGHTS ACT MERELY GAVE THE FEDERAL COURTS CONCURRENT JURISDICTION
OVER SUCH ACTIONS.  SECTION 8 OF THE FREEDMEN'S BILL WOULD HAVE ALLOWED
AGENTS OF THE FREEDMEN'S BUREAU TO TRY AND CONVICT THOSE WHO VIOLATED
THE BILL'S CRIMINAL PROVISIONS, WHILE SEC. 3 OF THE CIVIL RIGHTS ACT
ONLY GAVE THE FEDERAL COURTS EXCLUSIVE JURISDICTION OVER SUCH ACTIONS. 

/17/  CONG. GLOBE, 39TH CONG., 1ST SESS., 474. 

/18/  ID., AT 475. 

/19/  ID., AT 500.  THE CIVIL RIGHTS CASES, 109 U.S. 3, SUGGEST HOW
SENATOR TRUMBULL MIGHT HAVE EXPECTED SEC. 2 TO AFFECT PERSONS OTHER
THAN "OFFICERS" IN SPITE OF ITS "UNDER COLOR" LANGUAGE, FOR IT WAS
THERE SAID IN DICTUM THAT: "THE CIVIL RIGHTS BILL . . . IS ANALOGOUS .
. . TO (A LAW) UNDER THE ORIGINAL CONSTITUTION, DECLARING THAT THE
VALIDITY OF CONTRACTS SHOULD NOT BE IMPAIRED, AND THAT IF ANY PERSON
BOUND BY A CONTRACT SHOULD REFUSE TO COMPLY WITH IT, UNDER COLOR OR
PRETENCE THAT IT HAD BEEN RENDERED VOID OR INVALID BY A STATE LAW, HE
SHOULD BE LIABLE TO AN ACTION UPON IT IN THE COURTS OF THE UNITED
STATES, WITH THE ADDITION OF A PENALTY FOR SETTING UP SUCH AN UNJUST
AND UNCONSTITUTIONAL DEFENCE.  109 U.S.,AT 17. 

/20/  CONG. GLOBE, 39TH CONG., 1ST SESS., 476. 

/21/  ID., AT 600. 

/22/  ID., AT 1758. 

/23/  ID., AT 1761. 

/24/  MOREOVER, A FEW NORTHERN STATES APPARENTLY DID HAVE LAWS WHICH
DENIED TO NEGROES RIGHTS ENUMERATED IN THE ACT.  SEE G. STEPHENSON,
RACE DISTINCTIONS IN AMERICAN LAW 36-39 (1910); L. LITWACK, NORTH OF
SLAVERY:  THE NEGRO IN THE FREE STATES, 1790-1860, AT 93-94 (1961). 

/25/  CONG. GLOBE, 39TH CONG., 1ST SESS., 1759. 

/26/  ID., AT 1760. 

/27/  SEE CONG. GLOBE, 39TH CONG., 1ST SESS., 339-340. 

/28/  THE COURT ALSO GIVES PRIMINENCE, SEE ANTE, AT 428-429, TO A
REPORT BY GENERAL CARL SCHURZ WHICH DESCRIBED PRIVATE AS WELL AS
OFFICIAL DISCRIMINATION AGAINST FREEDMEN IN THE SOUTH.  HOWEVER, IT IS
APPARENT THAT THE SENATE REGARDED THE REPORT MERELY AS BACKGROUND, AND
IT FIGURED RELATIVELY LITTLE IN THE DEBATES.  MOREOVER, TO THE EXTENT
THAT THE DESCRIBED DISCRIMINATION WAS THE PRODUCT OF "CUSTOM," IT WOULD
HAVE BEEN PROHIBITED BY THE BILL. 

/29/  SEE INFRA, AT 473-475. 

/30/  CONG. GLOBE, 39TH CONG., 1ST SESS., 603. 

/31/  IBID. 

/32/  SEE CONG. GLOBE, 39TH CONG., 1ST SESS., 1781. 

/33/  CONG. GLOBE, 39TH CONG., 1ST SESS., APPENDIX, 183. 

/34/  IBID. 

/35/  CONG. GLOBE, 39TH CONG., 1ST SESS., 1118. 

/36/  ID., AT 1119. 

/37/  ID., AT 1151. 

/38/  ID., AT 1152. 

/39/  ID., AT 1153. 

/40/  ID., AT 1291. 

/41/  ID., AT 1293-1294.  IT IS QUITE CLEAR THAT REPRESENTATIVE
SHELLABARGER WAS SPEAKING OF THE BILL'S FIRST SECTION, FOR HE DID NOT
MENTION THE SECOND SECTION UNTIL LATER IN HIS SPEECH, AND THEN ONLY
BRIEFLY AND IN TERMS WHICH INDICATED THAT HE THOUGHT IT CO-EXTENSIVE
WITH THE FIRST ("I CANNOT REMARK ON THE SECOND SECTION FURTHER THAN TO
SAY THAT IT IS THE ORDINARY CASE OF PROVIDING PUNISHMENT FOR VIOLATING
A LAW OF CONGRESS.").  SEE ID., AT 1294. 

/42/  CONG. GLOBE, 39TH CONG., 1ST SESS., 1832-1833. 

/43/  ID., AT 1120. 

/44/  IT IS WORTHY OF NOTE, HOWEVER, THAT IF REPRESENTATIVE WILSON
BELIEVED THAT SEC. 2 OF THE BILL WOULD APPLY ONLY TO STATE OFFICERS,
AND NOT TO OTHER MEMBERS OF THE COMMUNITY, HE APPARENTLY DIFFERED FROM
THE BILL'S AUTHOR.  SEE THE REMARKS OF SENATOR TRUMBULL QUOTED, SUPRA,
AT 458. 

/45/  THE COURT'S RELIANCE, SEE ANTE, AT 425, N. 33, ON THE
STATEMENT OF REPRESENTATIVE SHELLABARGER THAT "THE VIOLATIONS OF
CITIZENS' RIGHTS, WHICH ARE REACHED AND PUNISHED BY THIS BILL, ARE
THOSE WHICH ARE . . . DONE UNDER COLOR OF STATE AUTHORITY . . . ,"
CONG. GLOBE, 39TH CONG., 1ST SESS., 1294, SEEMS VERY MISPLACED WHEN THE
STATEMENT IS TAKEN IN CONTEXT.  A FULLER VERSION OF REPRESENTATIVE
SHELLABARGER'S REMARKS WILL BE FOUND, SUPRA, AT 467-468. 

/46/  SEE CONG. GLOBE, 39TH CONG., 1ST SESS., 1160. 

/47/  SEE IBID. 

/48/  SEE CONG. GLOBE, 39TH CONG., 1ST SESS., 1835. 

/49/  IBID. 

/50/  CONG. GLOBE, 39TH CONG., 1ST SESS., 1156. 

/51/  SEE ID., AT 1115-1124, 1151-1155. 

/52/  THE EMPHASIS GIVEN BY THE COURT TO THE STATEMENT OF
REPRESENTATIVE THAYER WHICH IS QUOTED, ANTE, AT 433-434, SURELY
EVAPORATES WHEN THE STATEMENT IS VIEWED IN CONJUNCTION WITH
REPRESENTATIVE THAYER'S IMMEDIATELY FOLLOWING REMARKS, QUOTED, SUPRA,
AT 466-467. 

/53/  ID., AT 1124.  EARLIER IN THE SAME SPEECH, REPRESENTATIVE COOK
HAD DESCRIBED ACTUAL VAGRANCY LAWS WHICH HAD RECENTLY BEEN PASSED BY
RECONSTRUCTED SOUTHERN LEGISLATURES.  SEE ID., AT 1123-1124.     /54/
AN EMINENT AMERICAN HISTORIAN HAS SAID THAT THE EVENTS OF THE LAST
THIRD OF THE 19TH CENTURY TOOK PLACE "IN A FRAMEWORK OF PIONEER
INDIVIDUALISTIC MORES . . . ."  S. MORISON, THE OXFORD HISTORY OF THE
AMERICAN PEOPLE 788 (1965).  SEE ALSO 3 V. PARRINGTON, MAIN CURRENTS IN
AMERICAN THOUGHT 7-22 (1930). 

/55/  IT HAS BEEN SUGGESTED THAT THE EFFORT OF THE CONGRESSIONAL
RADICALS TO ENACT A PROGRAM OF LAND REFORM IN FAVOR OF THE FREEDMEN
DURING RECONSTRUCTION FAILED IN PART BECAUSE IT SMACKED TOO MUCH OF
"PATERNALISM" AND INTERFERENCE WITH PROPERTY RIGHTS.  SEE K. STAMPP,
THE ERA OF RECONSTRUCTION 126-131 (1965). 

/56/  SEE GENERALLY M. KONVITZ & T. LESKES, A CENTURY OF CIVIL
RIGHTS (1961); L. LITWACK, NORTH OF SLAVERY:  THE NEGRO IN THE FREE
STATES, 1790-1860 (1961); K. STAMPP, SUPRA, AT 12-17; G. STEPHENSON,
RACE DISTINCTIONS IN AMERICAN LAW (1910); MASLOW & ROBISON, CIVIL
RIGHTS LEGISLATION AND THE FIGHT FOR EQUALITY, 1862-1952, 20
U.CHI.L.REV.  363 (1953). 

/57/  SEE M. KONVITZ & T. LESKES, SUPRA, AT 155-156; 1864-1865 MASS.
ACTS AND RESOLVES 650. 

/58/  NEGROES WERE PERMITTED TO RIDE ONLY ON THE FRONT PLATFORMS OF
THE CARS.  SEE L. LITWACK, SUPRA, AT 112. 

/59/  NEGRO STUDENTS IN NEW YORK CITY WERE COMPELLED TO ATTEND
SEPARATE SCHOOLS, CALLED AFRICAN SCHOOLS, UNDER AUTHORITY OF AN 1864
NEW YORK STATE STATUTE WHICH EMPOWERED SCHOOL OFFICIALS TO ESTABLISH
SEPARATE, EQUAL SCHOOLS FOR NEGRO CHILDREN.  SEE L. LITWACK, SUPRA, AT
121, 133-134, 136, 151; G. STEPHENSON, SUPRA, AT 185; 1864 N.Y.LAWS
1281.  IN 1883, THE NEW YORK COURT OF APPEALS HELD THAT STUDENTS IN
BROOKLYN MIGHT CONSTITUTIONALLY BE SEGREGATED PURSUANT TO THE STATUTE. 
SEE PEOPLE EX REL. KING V. GALLAGHER, 93 N.Y. 438.  IN 1900, THE
STATUTE WAS FINALLY REPEALED AND SEGREGATION LEGALLY FORBIDDEN.  SEE
1900 N.Y.LAWS, VOL.II, AT 1173. 

/60/  SEE L. LITWACK, SUPRA, AT 91-92.  THE STATES WERE
MASSACHUSETTS, RHODE ISLAND, MAINE, NEW HAMPSHIRE, AND VERMONT.  SEE
ID., AT 91. 

/61/  SEE L. LITWACK, SUPRA, AT 94. 

/62/  SEE ID., AT 168-170. 

/63/  IT HAS BEEN NOTED THAT: "RESIDENTIAL HOUSING, DESPITE ITS
IMPORTANCE . . . , APPEARS TO BE THE LAST OF THE MAJOR AREAS OF
DISCRIMINATION THAT THE STATES HAVE BEEN WILLING TO ATTACK."  M.
KONVITZ & T. LESKES, SUPRA, AT 236.  AND AS RECENTLY AS 1953, IT COULD
BE SAID: "BILLS HAVE BEEN INTRODUCED IN STATE LEGISLATURES TO FORBID
RACIAL OR RELIGIOUS DISCRIMINATION IN 'MULTIPLE DWELLINGS'  (THOSE
HOUSING THREE OR MORE FAMILIES), . . . BUT THESE PROPOSALS HAVE NOT
BEEN CONSIDERED SERIOUSLY BY ANY LEGISLATIVE BODY."  MASLOW & ROBINSON,
SUPRA, AT 408.  (FOOTNOTES OMITTED.) 

/64/  IN CONTRAST, THE BILL WAS REPEATEDLY AND VEHEMENTLY ATTACKED,
IN THE FACE OF EMPHATIC DENIALS BY ITS SPONSORS, ON THE GROUND THAT IT
ALLEGEDLY WOULD INVALIDATE TWO TYPES OF STATE LAWS:  THOSE DENYING
NEGROES EQUAL VOTING RIGHTS AND THOSE PROHIBITING INTERMARRIAGE.  SEE,
E.G., CONG. GLOBE, 39TH CONG., 1ST SESS., 598, 600, 604, 606, 1121,
1157, 1263. 

/65/  THE PETITIONERS DO NOT ARGUE, AND THE COURT DOES NOT SUGGEST,
THAT THE DISCRIMINATION COMPLAINED OF IN THIS CASE WAS THE PRODUCT OF
SUCH A "CUSTOM." 

/66/  SEE, E.G., H. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT
94 (1908); J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT 126-128,
179 (1956); 2 S. MORISON & H. COMMAGER, THE GROWTH OF THE AMERICAN
REPUBLIC 39 (4TH ED. 1950); K. STAMPP, SUPRA, AT 136; J. TENBROEK,
EQUAL UNDER LAW 224 (1965); L. WARSOFF, EQUALITY AND THE LAW 126
(1938). 

/67/  SEE, E.G., CONG. GLOBE, 39TH CONG., 1ST SESS., 504-505
(SENATOR JOHNSON); ID., AT 1291-1293 (REPRESENTATIVE BINGHAM). 

/68/  OF COURSE, THE QUESTION OF THE CONSTITUTIONALITY OF THE "FAIR
HOUSING" PROVISIONS OF THE 1968 CIVIL RIGHTS ACT IS NOT BEFORE US, AND
I INTEND NO IMPLICATION ABOUT HOW I WOULD DECIDE THAT ISSUE. 

/69/  SEE ANTE, AT 417, N. 21. 

SAMUEL H. LIBERMAN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEF WERE ARTHUR ALLEN LEFF AND SAMUEL A. CHAITOVITZ. 

ISRAEL TREIMAN ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

ATTORNEY GENERAL CLARK ARGUED THE CAUSE FOR THE UNITED STATES, AS
AMICUS CURIAE, URGING REVERSAL.  WITH HIM ON THE BRIEF WERE SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL POLLAK, LOUIS F.
CLAIBORNE, AND BRIAN K. LANDSBERG. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY THOMAS C.
LYNCH, ATTORNEY GENERAL, CHARLES A. O'BRIEN, CHIEF DEPUTY ATTORNEY
GENERAL, AND LOREN MILLER, JR., AND PHILIP M. ROSTEN, DEPUTY ATTORNEYS
GENERAL, FOR THE STATE OF CALIFORNIA; BY FRANK J. KELLEY, ATTORNEY
GENERAL, ROBERT A. DERENGOSKI, SOLICITOR GENERAL, AND CARL LEVIN,
ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF MICHIGAN (CIVIL RIGHTS
COMMISSION); BY NORMAN H. ANDERSON, ATTORNEY GENERAL, C. B. BURNS, JR.,
SPECIAL ASSISTANT ATTORNEY GNERAL, AND LOUIS C. DEFEO, JR., AND DEANN
DUFF, ASSISTANT ATTORNEYS GENERAL, FOR THE MISSOURI COMMISSION ON HUMAN
RIGHTS; BY RICHARD W. MASON, JR., ILUS W. DAVIS, AND JOSEPH H. MCDOWELL
FOR KANSAS CITY, MISSOURI, AND KANSAS CITY, KANSAS; BY LEO PFEFFER AND
MELVIN L. WULF FOR THE AMERICAN CIVIL LIBERTIES UNION ET AL.; BY SOL
RABKIN, ROBERT L. CARTER, JOSEPH B. ROBINSON, ARNOLD FORSTER, PAUL
HARTMAN, AND BEVERLY COLEMAN FOR THE NATIONAL COMMITTEE AGAINST
DISCRIMINATION IN HOUSING ET AL.; BY JOHN LIGTENBERG AND ANDREW J.
LEAHY FOR THE AMERICAN FEDERATION OF TEACHERS ET AL.; BY JAMES I.
HUSTON FOR THE PATH ASSOCIATION; BY WILLIAM B. BALL FOR THE NATIONAL
CATHOLIC CONFERENCE FOR INTERRACIAL JUSTICE ET AL.; BY CHARLES H.
TUTTLE AND ROBERT WALSTON CHUBB FOR THE NATIONAL COUNCIL OF CHURCHES OF
CHRIST IN THE UNITED STATES ET AL.; BY EDWIN J. LUKAS FOR THE AMERICAN
JEWISH COMMITTEE ET AL., AND BY HENRY S. REUSS, PRO SE, AND PHINEAS
INDRITZ FOR HENRY S. REUSS. 

BRIEF OF AMICI CURIAE, URGING AFFIRMANCE, WAS FILED BY GEORGE
WASHINGTON WILLIAMS AND THOMAS F. CADWALADER FOR THE MARYLAND PETITION
COMMITTEE, INC., ET AL.
..END :



















HANOVER SHOE V. UNITED SHOE MACH., 392 U.S. 481 


       HANOVER SHOE, INC. V. UNITED SHOE MACHINERY CORP.

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT. 

        NO. 335.  ARGUED MARCH 5, 1968.-- DECIDED JUNE 17, 1968. 

           /0/ 


FOLLOWING THE COURT'S AFFIRAMNCE OF A DISTRICT COURT JUDGMENT IN A
CIVIL ACTION AGAINST UNITED SHOE MACHINERY CORP. (UNITED), A
MANUFACTURER AND DISTRIBUTOR OF SHOE MACHINERY, WHICH THE GOVERNMENT
HAD BROUGHT UNDER SEC. 4 OF THE SHERMAN ACT, HANOVER SHOE, INC.
(HANOVER), A SHOE MANUFACTURER AND CUSTOMER OF UNITED'S, BROUGHT THIS
PRIVATE TREBLE-DAMAGE SUIT AGAINST UNITED FOR ITS ALLEGED
MONOPOLIZATION OF THE SHOE MACHINERY INDUSTRY IN VIOLATION OF SEC. 2 OF
THE SHERMAN ACT, BY MEANS OF ITS PRACTICE OF LEASING AND REFUSING TO
SELL ITS SHOE MACHINERY.  HANOVER, RELYING ON SEC. 5(A) OF THE CLAYTON
ACT (MAKING A FINAL JUDGMENT OR DECREE IN A GOVERNMENT ANTITRUST SUIT
PRIMA FACIE EVIDENCE AS TO ALL MATTERS RESPECTING WHICH THE JUDGMENT OR
DECREE WOULD BE AN ESTOPPEL BETWEEN THE PARTIES THERETO), SUBMITTED THE
COURT'S FINDINGS, OPINION, AND DECREE IN THE GOVERNMENT'S CASE AS ITS
EVIDENCE THAT UNITED HAD MONOPOLIZED THE SHOE MACHINERY INDUSTRY AND
THAT ITS REFUSAL TO SELL THE MACHINES WAS AN INSTRUMENT OF THE
MONOPOLIZATION.  IN 1965 THE DISTRICT COURT RENDERED JUDGMENT FOR
HANOVER, HOLDING THAT IT WAS ENTITLED TO DAMAGES FOR THE PERIOD FROM
JULY 1, 1939 (THE EARLIEST DATE PERMITTED BY THE STATUTE OF
LIMITATIONS), TO SEPTEMBER 21, 1955, WHEN THIS SUIT WAS FILED, IN AN
AMOUNT EQUAL TO THREE TIMES THE DIFFERENCE BETWEEN WHAT HANOVER HAD
PAID IN RENTALS AND WHAT IT WOULD HAVE PAID HAD UNITED BEEN WILLING TO
SELL THE MACHINES, PLUS INTEREST.  THE COURT OF APPEALS AFFIRMED AS TO
LIABILITY, BUT DISAGREED WITH THE DISTRICT COURT ON CERTAIN ASPECTS OF
THE DAMAGE AWARD, INCLUDING THE RELEVANT DAMAGE PERIOD.  IT FIXED THAT
PERIOD'S END DATE SOMEWHAT EARLIER AND RULED THAT ITS START WAS JUNE
10, 1046, WHEN THIS COURT DECIDED AMERICAN TOBACCO CO. V. UNITED
STATES, 328 U.S. 781, AND ENDORSED THE VIEWS IN UNITED STATES V.
ALUMINUM CO. OF AMERICA, 148 F.2D 416 (C.A. 2D CIR.), PRIOR TO WHICH
THE COURT OF APPEALS CONCLUDED IT HAD BEEN NECESSARY IN AN ACTION FOR
VIOLATION OF SEC. 2 TO PROVE THE EXISTENCE OF PREDATORY PRACTICES AS
WELL AS MONOPOLY POWER.  BOTH PARTIES WERE GRANTED REVIEW OF THE COURT
OF APPEALS DECISION.  UNITED CONTENDS THAT THE DECISION IN THE
GOVERNMENT'S SUIT AGAINST IT DID NOT DETERMINE THAT UNITED'S LEASING
PRACTICE WAS AN INSTRUMENT OF MONOPOLIZATION; THAT HANOVER SUSTAINED NO
INJURY SINCE ANY EXCESS COST OF LEASING OVER COST OF OWNERSHIP WAS NOT
ABSORBED BY HANOVER BUT PASSED ON TO ITS CUSTOMERS; AND THAT THE
DISTRICT WERE ERRONEOUS BECAUSE THEY DID NOT PROPERLY ALLOW FOR THE
COST OF CAPITAL TO HANOVER AS AN ELEMENT OF THE COST OF ACQUIRING THE
SHOE MACHINERY, THE DISTRICT COURT HAVING MADE AN ADJUSTMENT ONLY TO
THE EXTENT OF DEDUCTING A 2.5% INTEREST COMPONENT FROM THE PROFITS IT
THOUGHT HANOVER WOULD HAVE EARNED BY BUYING THE CHANGING THE START OF
THE DAMAGE PERIOD AND IN ORDERING THE DISTRICT COURT ON REMAND TO
REDUCE ITS DAMAGE CALCULATION- BY WHATEVER TAX ADVANTAGES HANOVER MIGHT
HAVE OBTAINED BY LEASING AS COMPARED WITH BUYING THE SHOE MACHINERY. 
HELD: 

1. THE COURTS BELOW DID NOT ERR IN HOLDING THE UNITED'S PRACTICE OF
LEASING AND REFUSING TO SELL ITS MAJOR MACHINES WAS DETERMINED TO BE
ILLEGAL MONOPOLIZATION IN THE GOVERNMENT'S CASE, AS REFERENCE TO THE
COURT'S FINDINGS AND OPINION, AS WELL AS DECREE, IN THAT CASE MAKES
CLEAR.  PP. 483-487. 

2.  HANOVER PROVED INJURY AND THE AMOUNT OF ITS DAMAGE WITHIN THE
MEANING OFSEC.  4 OF THE CLAYTON ACT WHEN IT PROVED THAT UNITED HAD
OVERCHARGED IT DURING THE DAMAGE PERIOD AND SHOWED THE AMOUNT OF THE
OVERCHARGE; AND THE POSSIBILITY THAT IT MIGHT HAVE RECOUPED THE
OVERCHARGE BY "PASSING IT ON" TO ITS CUSTOMERS WAS NOT RELEVANT IN THE
ASSESSMENT OF ITS DAMAGES.  PP. 487-494. 

3.  HANOVER IS ENTITLED TO DAMAGES FOR THE ENTIRE PERIOD OF THE
APPLICABLE STATUTE OF LIMITATIONS, SINCE THE ALCOA-AMERICAN TOBACCO
DECISIONS DID NOT FUNDAMENTALLY ALTER THE LAW OF MONOPOLIZATION IN A
WAY WHICH SHOULD BE GIVEN ONLY PROSPECTIVE EFFECT.  PP. 495-502. 

4.  THE DISTRICT COURT DID NOT OTHERWISE ERR IN ITS COMPUTATION OF
DAMAGES.  PP. 502-504. 

377 F.2D 776, AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

HANOVER SHOE, INC. (HEREAFTER HANOVER) IS A MANUFACTURER OF SHOES
AND A CUSTOMER OF UNITED SHOE MACHINERY CORPORATION (HEREAFTER UNITED),
A MANUFACTURER AND DISTRIBUTOR OF SHOE MACHINERY.  IN 1954 THIS COURT
AFFIRMED THE JUDGMENT OF THE DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS, 110 F.SUPP.  295 (1953), IN FAVOR OF THE UNITED STATES
IN A CIVIL ACTION AGAINST UNITED UNDER SEC. 4 OF THE SHERMAN ACT, 26
STAT. 209, 15 U.S.C. 4.  UNITED SHOE MACHINERY CORP. V. UNITED STATES,
347 U.S. 521.  IN 1955, HANOVER BROUGHT THE PRESENT TREBLE-DAMAGE
ACTION AGAINST UNITED IN THE DISTRICT COURT RENDERED JUDGMENT FOR
HANOVER AND AWARDED TREBLED DAMAGES, INCLUDING INTEREST, OF $4,239,609,
AS WELL AS $650,000 IN COUNSEL FEES.  245 F.SUPP.  258.  ON APPEAL, THE
COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED THE FINDING OF
LIABILITY BUT DISAGREED WITH THE DISTRICT COURT ON CERTAIN QUESTIONS
RELATING TO THE DAMAGE AWARD.  377 F.2D 776 (1967).  BOTH HANOVER AND
UNITED SOUGHT REVIEW OF THE COURT OF APPEALS' DECISION, AND WE GRANTED
BOTH PETITIO,S.  389 U.S. 818 (1967). 

        I. 

HANOVER'S ACTION AGAINST UNITED ALLEGED THAT UNITED HAD MONOPOLIZED
THE SHOE MACHINERY INDUSTRY IN VIOLATION OF SEC. 2 OF THE SHERMAN ACT;
THAT UNITED'S PRACTICE OF LEASING AND REFUSING TO SELL ITS MORE
COMPLICATED AND IMPORTANT SHOE MACHINERY HAD BEEN AN INSTRUMENT OF THE
UNLAWFUL MONOPOLIZATION; AND THAT THEREFORE HANOVER SHOULD RECOVER FROM
UNITED THE DIFFERENCE BETWEEN WHAT IT PAID UNITED IN SHOE MACHINE
RENTALS AND WHAT IT WOULD HAVE PAID UNITED IN SHOE MACHINE RENTALS AND
WHAT IT WOULD HAVE PAID HAD UNITED BEEN WILLING DURING THE RELEVANT
PERIOD TO SELL THOSE MACHINES. 

283, 15 U.S.C. 16(A), MAKES A FINAL JUDGMENT OR DECREE IN ANY CIVIL OR
CRIMINAL SUIT BROUGHT BY THE UNITED STATES UNDER THE ANTITRUST LAWS
"PRIMA FACIE EVIDENCE . . . AS TO ALL MATTERS RESPECTING WHICH SAID
JUDGMENT OR DECREE WOULD BE AN ESTOPPEL AS BETWEEN THE PARTIES THERETO
. . . ."  RELYING ON THIS PROVISION, HANOVER SUBMITTED THE FINDINGS,
OPINIOM, AND DECREE RENDERED BY JUDGE WYZANSKI IN THE GOVERNMENT'S CASE
AS EVIDENCE THAT UNITED MONOPOLIZED AND THAT THE PRACTICE OF REFUSING
TO SELL MACHINES WAS AN INSTRUMENT OF THE MONOPOLIZATION.  UNITED DOES
NOT CONTEST THAT PRIMA FACIE WEIGHT IS TO BE GIVEN TO THE JUDGMENT IN
THE GOVERNMENT'S CASE.  IT DOES, HOWEVER, CONTEND THAT JUDGE WYZANSKI'S
DECISION DID NOT DETERMINE THAT THE PRACTICE OF LEASING AND REFUSING TO
SELL WAS AN INSTRUMENT OF MONOPOLIZATION.  THIS CLAIM, REJECTED BY THE
COURTS BELOW, IS THE THRESHOLD ISSUE IN NO. 463.  IF THE 1953 JUDGMENT
IS NOT PRIMA FACIE EVIDENCE OF THE ILLEGALITY OF THE PRACTICE FROM
WHICH HANOVER'S ASSERTED INJURY AROSE, THEN HANOVER, HAVING OFFERED NO
OTHER CONVINCING EVIDENCE OF ILLEGALITY, SHOULD NOT HAVE RECOVERED AT
ALL.  /1/ 

BOTH THE DISTRICT COURT AND THE COURT OF APPEALS CONCLUDED THAT THE
LEASE ONLY POLICY HAD BEEN HELD ILLEGAL IN THE GOVERNMENT'S SUIT.  WE
FIND NO ERROR IN THAT DETERMINATION.  IT IS TRUE THAT SEC. 4 OF THE
DECREE /2/  ON WHICH UNITED RELIES CONDEMNED ONLY CERTAIN CLAUSES IN
THE STANDARD LEASE AND THAT NOWHERE IN THE DECREE WAS ANY OTHER ASPECT
OF UNITED'S LEASING SYSTEM EXPRESSLY DESCRIBED OR CHARACTERIZED AS
ILLEGAL MONOPOLIZATION.  IT IS ALSO ARGUABLE THAT SEC. 5 OF THE DECREE,
WHICH REQUIRED THAT UNITED THENCEFORWARD NOT "OFFER FOR LEASE ANY
MACHINE TYPE, UNLESS IT ALSO OFFERS SUCH TYPE FOR SALE," WAS INCLUDED
MERELY TO INSURE AN EFFECTIVE REMEDY TO DISSIPATE THE ACCUMULATED
CONSEQUENCES OF UNITED'S MONOPOLIZATION.  WE ARE NOT, HOWEVER, LIMITED
TO THE DECREE IN DETERMINING THE EXTENT OF ESTOPPEL RESULTING FROM THE
JUDGMENT IN THE GOVERNMENT'S CASE.  IF BY REFERENCE TO THE FINDINGS,
OPINION, AND DECREE IT IS DETERMINED THAT AN ISSUE WAS ACTUALLY
ADJUDICATED IN AN ANTITRUST SUIT BROUGHT BY THE GOVERNMENT, THE PRIVATE
PLAINTIFF CAN TREAT THE OUTCOME OF THE GOVERNMENT'S CASE AS PRIMA FACIE
EVIDENCE ON THAT ISSUE.  SEE EMICH MOTORS CORP. V. GENERAL MOTORS
CORP., 340 U.S. 558, 566-569 (1951). 

THE PRACTICE IT BANNED HAD NOT BEEN INSTRUMENTAL IN THE MONOPOLIZATION
OF THE MARKET.  BUT IN OUR VIEW THE TRIAL COURT'S FINDINGS AND OPINION
PUT ON FIRM GROUND THE PROPOSITION THAT THE GOVERNMENT'S CASE INVOLVED
CONDEMNATION OF THE LEASE ONLY SYSTEM AS SUCH.  IN BOTH ITS OPINION
WITH RESPECT TO VIOLATION AND ITS OPINION WITH RESPECT TO REMEDY, THE
COURT NOT ONLY DEALT WITH THE OBJECTIONABLE CLAUSES IN THE STANDARD
LEASE BUT ALSO ADDRESSED ITSELF TO THE CONSEQUENCES OF ONLY LEASING
MACHINES AND TO THE MANNER IN WHICH THAT PRACTICE RELATED TO THE
MAINTENANCE OF UNITED'S MONOPOLY POWER.  /3/  THESE PORTIONS OF THE
COURT'S OPINION ARE WELL SUPPORTED BY ITS FINDINGS OF FACT, WHICH ALSO
ESTOP UNITED AS AGAINST THE GOVERNMENT AND WHICH THEREFORE CONSTITUTE
PRIMA FACIE EVIDENCE IN THIS CASE.  WE HAVE SET OUT THE RELEVANT
FINDINGS IN AN APPENDIX TO THIS OPINION.  THEY ARE THEMSELVES
SUFFICIENT TO SHOW THAT THE LEASE ONLY SYSTEM PLAYED A SIGNIFICANT ROLE
IN UNITED'S MONOPOLIZATION OF THE SHOE MACHINERY MARKET.  THOSE
FINDINGS WERE NOT LIMITED TO THE PARTICULAR PROVISIONS OF UNITED'S
LEASES.  THEY DEALT AS WELL WITH UNITED'S POLICY OF LEASING BUT NOT
SELLING ITS IMPORTANT MACHINES, WITH THE ADVANTAGES OF THAT PRACTICE TO
UNITED, AND WITH ITS IMPACT ON POTENTIAL AND ACTUAL COMPETITION.  WHEN
THE APPLICABLE STANDARD FOR DETERMINING MONOPOLIZATION UNDER SEC. 2 IS
APPLIED TO THESE FACTS, IT MUST BE CONCLUDED THAT THE DISTRICT COURT
AND THE COURT OF APPEALS DID NOT ERR IN HOLDING THAT UNITED'S PRACTICE
OF LEASING AND REFUSING TO SELL ITS MAJOR MACHINES WAS DETERMINED TO BE
ILLEGAL MONOPOLIZATION IN THE GOVERNMENT'S CASE.  /4/

        II. 

THE DISTRICT COURT FOUND THAT HANOVER WOULD HAVE BOUGHT RATHER THAN
LEASED FROM UNITED HAD IT BEEN GIVEN THE OPPORTUNITY TO DO SO.  /5/
THE DISTRICT COURT DETERMINED THAT IF UNITED HAD SOLD ITS IMPORTANT
MACHINES, THE COST TO HANOVER WOULD HAVE BEEN LESS THAN THE RENTAL PAID
FOR LEASING THESE SAME MACHINES.  THIS DIFFERENCE IN COST, TREBLED, IS
THE JUDGMENT AWARDED TO HANOVER IN THE DISTRICT COURT.  UNITED CLAIMS,
HOWEVER, THAT HANOVER SUFFERED NO LEGALLY COGNIZABLE INJURY, CONTENDING
THAT THE ILLEGAL OVERCHARGE DURING THE DAMAGE PERIOD WAS REFLECTED IN
THE PRICE CHARGED FOR SHOES SOLD BY HANOVER TO ITS CUSTOMERS AND THAT
HANOVER, IF IT HAD BOUGHT MACHINES AT LOWER PRICES, WOULD HAVE CHARGED
LESS AND MADE NO MORE PROFIT THAN IT MADE BY LEASING.  AT THE VERY
LEAST, UNITED URGES, THE DISTRICT COURT SHOULD HAVE DETERMINED ON THE
EVIDENCE OFFERED WHETHER THESE CONTENTIONS WERE CORRECT.  THE COURT OF
APPEALS, LIKE THE DISTRICT COURT, REJECTED THIS ASSERTION OF THE SO
CALLED "PASSING-ON" DEFENSE, AND WE AFFIRM THAT JUDGMENT.  /6/ 

THAT ANY PERSON "WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY
REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR . .
. AND SHALL RECOVER THREEFOLD THE DAMAGES BY HIM SUSTAINED . . . ."  WE
THINK IT SOUND TO HOLD THAT WHEN A BUYER SHOWS THAT THE PRICE PAID BY
HIM FOR MATERIALS PURCHASED FOR USE IN HIS BUSINESS IS ILLEGALLY HIGH
AND ALSO SHOWS THE AMOUNT OF THE OVERCHARGE, HE HAS MADE OUT A PRIMA
FACIE CASE OF INJURY AND DAMAGE WITHIN THE MEANING OF SEC. 4. 

IF IN THE FACE OF THE OVERCHARGE THE BUYER DOES NOTHING AND ABSORBS
THE LOSS, HE IS ENTITLED TO TREBLE DAMAGES.  THIS MUCH SEEMS CONCEDED. 
THE REASON IS THAT HE HAS PAID MORE THAN HE SHOULD AND HIS PROPERTY HAS
BEEN ILLEGALLY DIMINISHED, FOR HAD THE PRICE PAID BEEN LOWER HIS
PROFITS WOULD HAVE BEEN HIGHER.  IT IS ALSO CLEAR THAT IF THE BUYER,
RESPONDING TO THE ILLEGAL PRICE, MAINTAINS HIS OWN PRICE BUT TAKES
STEPS TO INCREASE HIS VOLUME OR TO DECREASE OTHER COSTS, HIS RIGHT TO
DAMAGES IS NOT DESTROYED.  THOUGH HE MAY MANAGE TO MAINTAIN HIS PROFIT
LEVEL, HE WOULD HAVE MADE MORE IF HIS PURCHASES FROM THE DEFENDANT HAD
COST HIM LESS.  WE HOLD THAT THE BUYER IS EQUALLY ENTITLED TO DAMAGES
IF HE RAISES THE PRICE FOR HIS OWN PRODUCT.  AS LONG AS THE SELLER
CONTINUES TO CHARGE THE ILLEGAL PRICE, HE TAKES FROM THE BUYER MORE
THAN THE LAW ALLOWS.  AT WHATEVER PRICE THE BUYER SELLS, THE PRICE HE
PAYS THE SELLER REMAINS ILLEGALLY HIGH, AND HIS PROFITS WOULD BE
GREATER WERE HIS COSTS LOWER. 

FUNDAMENTALLY, THIS IS THE VIEW STATED BY MR. JUSTICE HOLMES IN
CHATTANOOGA FOUNDRY & PIPE WORKS V. CITY OF ATLANTA, 203 U.S. 390
(1906), WHERE ATLANTA SUED THE DEFENDANTS FOR TREBLE DAMAGES FOR
ANTITRUST VIOLATIONS IN CONNECTION WITH THE CITY'S PURCHASES OF PIPE
FOR ITS WATERWORKS SYSTEM.  THE COURT AFFIRMED A JUDGMENT IN FAVOR OF
THE CITY FOR AN AMOUNT MEASURED BY THE DIFFERENCE BETWEEN THE PRICE
PAID AND WHAT THE MARKET OR FAIR PRICE WOULD HAVE BEEN HAD THE SELLERS
NOT COMBINED, THE COURT SAYING THAT THE CITY "WAS INJURED IN ITS
PROPERTY, AT LEAST, IF NOT IN ITS BUSINESS OF FURNISHING WATER, BY
BEING LED TO PAY MORE THAN THE WORTH OF THE PIPE.  A PERSON WHOSE
PROPERTY IS DIMINISHED BY A PAYMENT OF MONEY WRONGFULLY INDUCED IS
INJURED IN HIS PROPERTY."  ID., AT 396.  THE SAME APPROACH WAS EVIDENT
IN THOMSEN V. CAYSER, 243 U.S. 66 (1917), ANOTHER TREBLE-DAMAGE
ANTITRUST CASE.  /7/  WITH RESPECT TO OVERCHARGE CASES ARISING UNDER
THE TRANSPORTATION LAWS, SIMILAR VIEWS WERE EXPRESSED BY MR. JUSTICE
HOLMES IN SOUTHERN PACIFIC CO. V. DARNELL-TAENZER LUMBER CO., 245 U.S.
531, 533 (1918), AND BY MR. JUSTICE BRANDEIS IN ADAMS V. MILLS, 286
U.S. 397, 406-408 (1932).  IN THOSE CASES THE POSSIBILITY THAT
PLAINTIFFS HAD RECOUPED THE OVERCHARGES FROM THEIR CUSTOMERS WAS HELD
IRRELEVANT IN ASSESSING DAMAGES.  /8/ 

UNITED SEEKS TO LIMIT THE GENERAL PRINCIPLE THAT THE VICTIM OF AN
OVERCHARGE IS DAMAGED WITHIN THE MEANING OF SEC. 4 TO THE EXTENT OF
THAT OVERCHARGE.  THE RULE, UNITED ARGUES, SHOULD BE SUBJECT TO THE
DEFENSE THAT ECONOMIC CIRCUMSTANCES WERE SUCH THAT THE OVERCHARGED
BUYER COULD ONLY CHARGE HIS CUSTOMERS A HIGHER PRICE BECAUSE THE PRICE
TO HIM WAS HIGHER.  IT IS ARGUED THAT IN SUCH CIRCUMSTANCES THE BUYER
SUFFERS NO LOSS FROM THE OVERCHARGE.  THIS SITUATION MIGHT BE PRESENT,
IT IS SAID, WHERE THE OVERCHARGE IS IMPOSED EQUALLY ON ALL OF A BUYER'S
COMPETITORS AND WHERE THE DEMAND FOR THE BUYER'S PRODUCT IS SO
INELASTIC THAT THE BUYER AND HIS COMPETITORS COULD ALL INCREASE THEIR
PRICES BY THE AMOUNT OF THE COST INCREASE WITHOUT SUFFERING A
CONSEQUENT DECLINE IN SALES. 

WE ARE NOT IMPRESSED WITH THE ARGUMENT THAT SOUND LAWS OF ECONOMICS
REQUIRE RECOGNIZING THIS DEFENSE.  A WIDE RANGE OF FACTORS INFLUENCE A
COMPANY'S PRICING POLICIES.  NORMALLY THE IMPACT OF A SINGLE CHANGE IN
THE RELEVANT CONDITIONS CANNOT BE MEASURED AFTER THE FACT; INDEED A
BUSINESSMAN MAY BE UNABLE TO STATE WHETHER, HAD ONE FACT BEEN DIFFERENT
(A SINGLE SUPPLY LESS EXPENSIVE, GENERAL ECONOMIC CONDITIONS MORE
BUOYANT, OR THE LABOR MARKET TIGHTER, FOR EXAMPLE), HE WOULD HAVE
CHOSEN A DIFFERENT PRICE.  EQUALLY DIFFICULT TO DETERMINE, IN THE REAL
ECONOMIC WORLD RATHER THAN AN ECONOMIST'S HYPOTHETICAL MODEL, IS WHAT
EFFECT A CHANGE IN A COMPANY'S PRICE WILL HAVE ON ITS TOTAL SALES. 
FINALLY, COSTS PER UNIT FOR A DIFFERENT VOLUME OF TOTAL SALES ARE HARD
TO ESTIMATE.  EVEN IF IT COULD BE SHOWN THAT THE BUYER RAISED HIS PRICE
IN RESPONSE TO, AND IN THE AMOUNT OF, THE OVERCHARGE AND THAT HIS
MARGIN OF PROFIT AND TOTAL SALES HAD NOT THEREAFTER DECLINED, THERE
WOULD REMAIN THE NEARLY INSUPERABLE DIFFICULTY OF DEMONSTRATING THAT
THE PARTICULAR PLAINTIFF COULD NOT OR WOULD NOT HAVE RAISED HIS PRICES
ABSENT THE OVERCHARGE OR MAINTAINED THE HIGHER PRICE HAD THE OVERCHARGE
BEEN DISCONTINUED.  SINCE ESTABLISHING THE APPLICABILITY OF THE PASSING
ON DEFENSE WOULD REQUIRE A CONVINCING SHOWING OF EACH OF THESE
VIRTUALLY UNASCERTAINABLE FIGURES, THE TASK WOULD NORMALLY PROVE
INSURMOUNTABLE.  /9/  ON THE OTHER HAND, IT IS NOT UNLIKELY THAT IF THE
EXISTENCE OF THE DEFENSE IS GENERALLY CONFIRMED, ANTITRUST DEFENDANTS
WILL FREQUENTLY SEEK TO ESTABLISH ITS APPLICABILITY.  TREBLE-DAMAGE
ACTIONS WOULD OFTEN REQUIRE ADDITIONAL LONG AND COMPLICATED PROCEEDINGS
INVOLVING MASSIVE EVIDENCE AND COMPLICATED THEORIES. 

IN ADDITION, IF BUYERS ARE SUBJECTED TO THE PASSING-ON DEFENSE,
THOSE WHO BUY FROM THEM WOULD ALSO HAVE TO MEET THE CHALLENGE THAT THEY
PASSED ON THE HIGHER PRICE TO THEIR CUSTOMERS.  THESE ULTIMATE
CONSUMERS, IN TODAY'S CASE THE BUYERS OF SINGLE PAIRS OF SHOES, WOULD
HAVE ONLY A TINY STAKE IN A LAWSUIT AND LITTLE INTEREST IN ATTEMPTING A
CLASS ACTION.  IN CONSEQUENCE, THOSE WHO VIOLATE THE ANTITRUST LAWS BY
PRICE FIXING OR MONOPOLIZING WOULD RETAIN THE FRUITS OF THEIR
ILLEGALITY BECAUSE NO ONE WAS AVAILABLE WHO WOULD BRING SUIT AGAINST
THEM.  TREBLE-DAMAGE ACTIONS, THE IMPORTANCE OF WHICH THE COURT HAS
MANY TIMES EMPHASIZED, WOULD BE SUBSTANTIALLY REDUCED IN
EFFECTIVENESS.     OUR CONCLUSION IS THAT HANOVER PROVED INJURY AND THE
AMOUNT OF ITS DAMAGES FOR THE PURPOSES OF ITS TREBLE-DAMAGE SUIT WHEN
IT PROVED THAT UNITED HAD OVERCHARGED IT DURING THE DAMAGE PERIOD AND
SHOWED THE AMOUNT OF THE OVERCHARGE; UNITED WAS NOT ENTITLED TO ASSERT
A PASSING-ON DEFENSE.  WE RECOGNIZE THAT THERE MIGHT BE SITUATIONS--
FOR INSTANCE, WHEN AN OVERCHARGED BUYER HAS A PRE-EXISTING "COST-PLUS"
CONTRACT, THUS MAKING IT EASY TO PROVE THAT HE HAS NOT BEEN DAMAGED--
WHERE THE CONSIDERATIONS REQUIRING THAT THE PASSING-ON DEFENSE NOT BE
PERMITTED IN THIS CASE WOULD NOT BE PRESENT.  WE ALSO RECOGNIZE THAT
WHERE NO DIFFERENTIAL CAN BE PROVED BETWEEN THE PRICE UNLAWFULLY
CHARGED AND SOME PRICE THAT THE SELLER WAS REQUIRED BY LAW TO CHARGE,
ESTABLISHING DAMAGES MIGHT REQUIRE A SHOWING OF LOSS OF PROFITS TO THE
BUYER.  /10/  13III. 

THE DISTRICT COURT HELD THAT HANOVER WAS ENTITLED TO DAMAGES FOR THE
PERIOD COMMENCING JULY 1, 1939, AND TERMINATING SEPTEMBER 21, 1955. 
THE FORMER DATE REPRESENTED THE GREATEST RETROSPECTIVE REACH PERMITTED
UNDER THE APPLICABLE STATUTE OF LIMITATIONS, AND THE LATTER DATE WAS
THAT UPON WHICH HANOVER FILED ITS SUIT.  IN ADDITION TO SOMEWHAT
SHORTENING THE FORWARD REACH OF THE DAMAGE PERIOD, /11/  THE COURT OF
APPEALS RULED THAT JUNE 10, 1946, RATHER THAN JULY 1, 1939, MARKED THE
COMMENCEMENT OF THE DAMAGES PERIOD.  JUNE 10, 1946, WAS THE DATE THIS
COURT DECIDED AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781,
WHICH ENDORSED THE VIEWS OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT
IN UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416 (1945).  IN
THE CASE BEFORE US THE COURT OF APPEALS CONCLUDED THAT THE DECISIONS IN
ALCOA-AMERICAN TOBACCO FUNDAMENTALLY ALTERED THE LAW OF MONOPOLIZATION-
THAT PRIOR TO THEM IT WAS NECESSARY TO PROVE THE EXISTENCE OF
PREDATORY PRACTICES AS WELL AS MONOPOLY POWER, WHEREAS AFTERWARDS PROOF
OF PREDATORY PRACTICES WAS NOT ESSENTIAL.  THE COURT OF APPEALS WAS
ALSO OF THE VIEW THAT BECAUSE IN PRIOR LITIGATION UNITED'S LEASES HAD
ESCAPED CONDEMNATION AS PREDATORY PRACTICES ILLEGAL UNDER SEC. 1,
UNITED'S CONDUCT SHOULD NOT BE HELD TO HAVE VIOLATED SEC. 2 AT ANY TIME
PRIOR TO JUNE 10, 1946.  377 F.2D, AT 790.  THIS HOLDING HAS BEEN
CHALLENGED, AND WE REVERSE IT. 

THE THEORY OF THE COURT OF APPEALS SEEMS TO HAVE BEEN THAT WHEN A
PARTY HAS SIGNIFICANTLY RELIED UPON A CLEAR AND ESTABLISHED DOCTRINE,
AND THE RETROSPECTIVE APPLICATION OF A NEWLY DECLARED DOCTRINE WOULD
UPSET THAT JUSTIFIABLE RELIANCE TO HIS SUBSTANTIAL INJURY,
CONSIDERATIONS OF JUSTICE AND FAIRNESS REQUIRE THAT THE NEW RULE APPLY
PROSPECTIVELY ONLY.  POINTING TO RECENT DECISIONS OF THIS COURT IN THE
AREA OF THE CRIMINAL LAW, THE COURT OF APPEALS COULD SEE NO REASON WHY
THE CONSIDERATIONS WHICH HAD FAVORED ONLY PROSPECTIVE APPLICAION IN
THOSE CASES SHOULD NOT BE APPLIED AS WELL AS IN THE CIVIL AREA,
ESPECIALLY IN A TREBLE-DAMAGE ACTION.  THERE IS, OF COURSE, NO REASON
TO CONFRONT THIS THEORY UNLESS WE HAVE BEFORE US A SITUATION IN WHICH
THERE WAS A CLEARLY DECLARED JUDICIAL DOCTRINE UPON WHICH UNITED RELIED
AND UNDER WHICH ITS CONDUCT WAS LAWFUL, A DOCTRINE WHICH WAS OVERRULED
IN FAVOR OF A NEW RULE ACCORDING TO WHICH CONDUCT PERFORMED IN RELIANCE
UPON THE OLD RULE WOULD HAVE BEEN UNLAWFUL.  BECAUSE WE DO NOT BELIEVE
THAT THIS CASE PRESENTS SUCH A SITUATION, WE HAVE NO OCCASION TO PASS
UPON THE THEORY OF THE COURT OF APPEALS. 

NEITHER THE OPINION IN ALCOA NOR THE OPINION IN AMERICAN TOBACCO
INDICATED THAT THE ISSUE INVOLVED WAS NOVEL, THAT INNOVATIVE PRINCIPLES
WERE NECESSARY TO RESOLVE IT, OR THAT THE ISSUE HAD BEEN SETTLED IN
PRIOR CASES IN A MANNER CONTRARY TO THE VIEW HELD BY THOSE COURTS.  IN
RULING THAT IT WAS NOT NECESSARY TO EXCLUDE COMPETITORS TO BE GUILTY OF
MONOPOLIZATION, THE COURT OF APPEALS FOR THE SECOND CIRCUIT RELIED UPON
A LONG LINE OF CASES IN THIS COURT STRETCHING BACK TO 1912.  148 F.2D,
AT 429.  THE CONCLUSION THAT ACTIONS WHICH WILL SHOW MONOPOLIZATION ARE
NOT "LIMITED TO MANOEUVRES NOT HONESTLY INDUSTRIAL" WAS ALSO PREMISED
ON EARLIER OPINIONS OF THIS COURT, PARTICULARLY UNITED STATES V. SWIFT
& CO., 286 U.S. 106, 116 (1932).  IN THE AMERICAN TOBACCO CASE, THIS
COURT NOTED THAT THE PRECISE QUESTION BEFORE IT HAD NOT BEEN PREVIOULSY
DECIDED, 328 U.S.,AT 811, AND GAVE NO INDICATION THAT IT THOUGHT IT WAS
ADOPTING A RADICALLY NEW INTERPRETATION OF THE SHERMAN ACT.  LIKE THE
COURT OF APPEALS, THIS COURT RELIED FOR ITS CONCLUSION UPON EXISTING
AUTHORITIES.  /12/  THESE CASES MAKE IT CLEAR THAT THERE WAS NO
ACCEPTED INTERPRETATION OF THE SHERMAN ACT WHICH CONDITIONED A FINDING
OF MONOPOLIZATION UNDER SEC. 2 UPON A SHOWING OF PREDATORY PRACTICES BY
THE MONOPOLIST.  /13/  IN NEITHER CASE WAS THERE SUCH AN ABRUPT AND
FUNDAMENTAL SHIFT IN DOCTRINE AS TO CONSTITUTE AN ENTIRELY NEW RULE
WHICH IN EFFECT REPLACED AN OLDER ONE.  WHATEVER DEVELOPMENT IN
ANTITRUST LAW WAS BROUGHT ABOUT WAS BASED TO A GREAT EXTENT ON EXISTING
AUTHORITIES AND WAS AN EXTENSION OF DOCTRINES WHICH HAD BEEN GROWING
AND DEVELOPING OVER THE YEARS.  THESE CASES DID NOT CONSTI,UTES A SHARP
BREAK IN THE LINE OF EARLIER AUTHORITY OR AN AVULSIVE CHANGE WHICH
CAUSED THE CURRENT OF THE LAW THEREAFTER TO FLOW BETWEEN NEW BANKS.  WE
CANNOT SAY THAT PRIOR TO THOSE CASES POTENTIAL ANTITRUST DEFENDANTS
WOULD HAVE BEEN JUSTIFIED IN THINKING 0HAT THEN CURRENT ANTITRUST
DOCTRINES PERMITTED THEM TO DO ALL ACTS CONDUCIVE TO THE CREATION OR
MAINTENANCE OF A MONOPOLY, SO LONG AS THEY AVOIDED DIRECT EXCLUSION OF
COMPETITORS OR OTHER PREDATORY ACTS.  /14/ 

UNITED RELIES HEAVILY ON THREE SHERMAN ACT CASES BROUGHT AGAINST IT
OR ITS PREDECESSORS BY THE UNITED STATES AND DECIDED BY THIS COURT. 
UNITED ARGUES THAT THESE CASES DEMONSTRATE BOTH THAT BEFORE ALCOA
AMERICAN TOBACCO THE LAW WAS SUBSTANTIALLY DIFFERENT AND THAT ITS
LEASING PRACTICES HAD BEEN DEEMED BY THIS COURT NOT TO BE INSTRUMENTS
OF MONOPOLIZATION.  UNITED STATES V. WINSLOW, 227 U.S. 202 (1913);
UNITED STATES V. UNITED SHOE MACHINERY CO. OF NEW JERSEY, 247 U.S. 32
(1918); UNITED SHOE MACHINERY CORP. V. UNITED STATES, 258 U.S. 451
(1922).  IN OUR OPINION, HOWEVER, UNITED OVERREADS AND EXAGGERATES THE
SIGNIFICANCE OF THESE THREE CASES.  IN WINSLOW, THE GOVERNMENT CHARGED
THE THREE GROUPS OF COMPANIES WHICH HAD MERGED TO FORM UNITED WITH A
VIOLATION OF SEC. 1.  THE TRIAL COURT CONSTRUED THE INDICTMENT TO
PERTAIN ONLY TO THE MERGER OF THE COMPANIES AND NOT TO BUSINESS
PRACTICES WHICH RESULTED FROM THE MERGER; MOST SIGNIFICANTLY, IT
EXCLUDED UNITED'S LEASING POLICIES FROM CONSIDERATION.  THE COURT
SPECIFICALLY STATED THAT "(THE VALIDITY OF THE LEASES OR OF A
COMBINATION CONTEMPLATING THEM CANNOT BE PASSED UPON IN THIS CASE." 
227 U.S.,AT 217. 

THE THIRD CASE, DECIDED IN 1922, WAS BROUGHT UNDER SEC. 3 OF THE
CLAYTON ACT RATHER THAN SEC. 2 OF THE SHERMAN ACT.  THIS COURT AFFIRMED
A DECREE ENJOINING UNITED FROM MAKING LEASES CONTAINING CERTAIN
CLAUSES, TERMS, AND CONDITIONS.  NOTHING IN THAT CASE INDICATES THAT
PREDATORY PRACTICES HAD TO BE SHOWN TO PROVE A SEC. 2 MONOPOLY CHARGE
OR THAT THE LEASES, OR THE CLAUSES IN THEM WHICH WERE LEFT UNDISTURBED,
WOULD NOADEQUATELY DEMONSTRATE MONOPOLIZATION BY AN ENTERPRISE WITH
MONOPOLY POWER. 

OF THE THREE CASES, THE 1918 CASE MOST STRONGLY SUPPORTS UNITED.  IT
INVOLVED A CIVIL ACTION BY THE UNITED STATES CHARGING VIOLATIONS OF
SECS. 1 AND 2 OF THE SHERMAN ACT.  THE GOVERNMENT CONTENDED THAT
UNITED'S MACHINERY LEASES AND LICENSE AGREEMENTS HAD BEEN USED TO
CONSUMATE BOTH VIOLATIONS.  A THREE-JUDGE COURT DISMISSED THE BILL AND
THIS COURT AFFIRMED BY A VOTE OF 4 TO 3.  THERE IS NO QUESTION BUT THAT
THE LEASES AS THEY WERE THEN CONSTITUTED WERE HELD UNASSAILABLE UNDER
SEC. 1; THE REASONS FOR THIS RULING ARE NOT CLEAR.  AS FOR THE SEC. 2
CHARGE, WE CANNOT READ THE OPINION AS SPECIFYING WHAT COURSE OF CONDUCT
WOULD AMOUNT TO MONOPOLIZATION UNDER SEC. 2 IF ENGAGED IN BY A CONCERN
WITH MONOPOLY POWER.  AT MOST THE HOLDING WAS THAT THE LEASES
THEMSELVES DID NOT PROVE A SEC. 2 CHARGE-- DID NOT THEMSELVES PROVE
MONOPOLY POWER AS WELL AS MONOPOLIZATION.  BUT THE ISSUE IN THE CASE
BEFORE US NOW IS NOT WHETHER UNITED'S LEASING SYSTEM PROVES MONOPOLY
POWER BUT WHETHER, ONCE MONOPOLY POWER IS SHOWN, LEASING THE WAY UNITED
LEASED SUFFICIENTLY SHOWS AN INTENT TO EXERCISE THAT POWER.  THERE IS
LITTLE, IF ANYTHING, IN THE 1918 OPINION WHICH IS ILLUMINATING ON THIS
ISSUE.  INDEED, IT MAY FAIRLY BE READ AS HOLDING THAT UNITED DID NOT
HAVE MONOPOLY POWER OVER THE MARKET AT ALL, FOR IN REJECTING THE CLAIM
THAT UNITED'S PRACTICE OF LEASING WAS ILLEGAL WHEN USED BY A
CORPORATION DOMINANT IN THE MARKET, THE COURT SAID: 

     "THIS, HOWEVER, IS ASSERTION AND RELIES FOR ITS FOUNDATION
UPON

  THE ASSUMPTION OF AN ILLEGAL DOMINANCE BY THE UNITED COMPANY THAT

  HAS BEEN FOUND NOT TO EXIST.  THIS ELEMENT, THEREFORE, MUST BE

  PUT TO ONE SIDE AND THE LEASES REGARDED IN AND OF THEMSELVES AND

  BY THE INCENTIVES THAT INDUCED THEIR EXECUTION . . . ."  247

  U.S.,AT 60. 

ANY COMFORT UNITED MIGHT HAVE RECEIVED FROM THE 1918 CASE WITH
RESPECT TO THE LEGALITY OF ITS LEASING SYSTEM WHEN EMPLOYED BY ONE WITH
MONOPOLY POWER SHOULD HAVE BEEN SHORT-LIVED.  IN THE ,HIRD CASE, WHICH
WAS BROUGHT UNDER SEC. 3 OF THE CLAYTON ACT, AND IN WHICH ALL THE
REMAINING JUSTICES MAKING UP THE MAJORITY IN THE 1918 CASE EXCEPT MR.
JUSTICE MCKENNA VOTED WITH THE COURT, THE OPINION FOR THE COURT
DESCRIBED THE 1918 DECISION AS FOLLOWS: 

     "THAT THE LEASES WERE ATTACKED UNDER THE FORMER BILL AS
VIOLATIVE OF THE 

SHERMAN ACT IS TRUE, BUT THEY WERE SUSTAINED AS VALID AND BINDING

  AGREEMENTS WITHIN THE RIGHTS OF HOLDERS OF PATENTS."  258 U.S.,AT
460.  THIS VIEW WAS SUPPORTED BY OTHER REFERENCES TO THE 1918 OPINION
WHICH DESCRIBED THE QUESTION AT ISSUE THERE AS BEING WHETHER UNITED'S
LEASES WENT BEYOND THE EXERCISE OF A LAWFUL MONOPOLY. 

ONE MIGHT POSSIBLY DISAGREE WITH THIS READING OF THE 1918 OPINION,
BUT IT WAS AN AUTHORITATIVE GLOSS.  AFTER 1922 AND AFTER THE EXPIRATION
OF THE PATENTS ON ITS MAJOR MACHINES, THERE WAS NO SOUND BASIS TO
JUSTIFY RELIANCE BY UNITED ON THE 1918 CASE AS A DEFINITIVE
PRONOUNCEMENT THAT ITS LEASING SYSTEM PROVIDED LEGALLY INSUFFICIENT
EVIDENCE OF MONOPOLIZATION, ONCE UNITED'S POWER OVER THE MARKET WAS
SATISFACTORILY SHOWN.  THE PRIOR CASES IMMUNIZED UNITED'S MONOPOLY
INSOFAR AS IT ORIGINATED IN A MERGER OF ALLEGEDLY COMPETING COMPANIES
AND PERHAPS ARE OF SOME HELP TO UNITED IN OTHER RESPECTS.  BUT THEY DO
NOT ESTABLISH EITHER THAT PRIOR TO 1946 THERE WAS A WELL-DEFINED
INTERPRETATION OF THE SHERMAN ACT WHICH WAS ABRUPTLY OVERRULED IN ALCOA
AMERICAN TOBACCO OR THAT UNITED'S LEASING SYSTEM COULD NOT BE
CONSIDERED AN INSTRUMENT FOR THE EXERCISE AND MAINTENANCE OF MONOPOLY
POWER. 

IN THESE CIRCUMSTANCES, THERE IS NO ROOM FOR ARGUMENT THAT HANOVER'S
DAMAGES SHOULD REACH BACK ONLY TO THE DATE OF THE AMERICAN TOBACCO
DECISION.  HAVING REJECTED THE CONTENTION THAT ALCOA-AMERICAN TOBACCO
CHANGED THELAW OF MONOPOLIZATION IN A WAY WHICH SHOULD BE GIVEN ONLY
PROSPECTIVE EFFECT, IT FOLLOWS THAT HANOVER IS ENTITLED TO DAMAGES FOR
THE ENTIRE PERIOD PERMITTED BY THE APPLICABLE STATUTE OF LIMITATIONS. 
/15/

        IV. 

TWO QUESTIONS ARE RAISED HERE ABOUT THE MANNER IN WHICH DAMAGES WERE
COMPUTED BY THE COURTS BELOW.  HANOVER ARGUES THAT THE COURT OF APPEALS
ERRED IN REQUIRING THE DISTRICT COURT, ON REMAND, TO TAKE ACCOUNT OF
THE ADDITIONAL TAXES HANOVER WOULD HAVE PAID, HAD IT PURCHASED MACHINES
INSTEAD OF RENTING THEM DURING THE YEARS IN QUESTION.  THE COURT OF
APPEALS EVIDENTLY FELT THAT SINCE ONLY AFTER-TAX PROFITS CAN BE
REINVESTED OR DISTRIBUTED TO SHAREHOLDERS, HANOVER WAS DAMAGED ONLY TO
THE EXTENT OF THE AFTER-TAX PROFITS THAT IT FAILED TO RECEIVE.  THE
VIEW OF THE COURT OF APPEALS IS SOUND IN THEORY, BUT IT OVERLOOKS THE
FACT IN PRACTICE THE INTERNAL REVENUE SERVICE HAS TAXED RECOVERIES FOR
TORTIOUS DEPRIVATION OF PROFITS AT THE TIME THE RECOVERIES ARE MADE,
NOT BY REOPENING THE EARLIER YEARS.  SEE COMMISSIONER V. GLENSHAW GLASS
CO., 348 U.S. 426 (1955).  AS HANOVER POINTS OUT, SINCE IT WILL BE
TAXED WHEN IT RECOVERS DAMAGES FROM UNITED FOR BOTH THE ACTUAL AND THE
TREBLED DAMAGES, TO DIMINISH THE ACTUAL DAMAGES BY THE AMOUNT OF THE
TAXES THAT IT WOULD HAVE PAID HAD IT RECEIVED GREATER PROFITS IN THE
YEARS IT WAS DAMAGED WOULD BE TO APPLY A DOUBLE DEDUCTION FOR TAXATION,
LEAVING HANOVER WITH LESS INCOME THAN IT WOULD HAVE HAD IF UNITED HAD
NOT INJURED IT.  IT IS TRUE THAT ACCOUNTING FOR TAXES IN THE YEAR WHEN
DAMAGES ARE RECEIVED RATHER THAN THE YEAR WHEN PROFITS WERE LOST CAN
CHANGE THE AMOUNT OF TAXES THE REVENUE SERVICE COLLECTS; AS UNITED
SHOWS, ACTUAL RATES OF TAXATION WERE MUCH HIGHER IN SOME OF THE YEARS
WHEN HANOVER WAS INJURED THAN THEY ARE TODAY.  BUT BECAUSE THE STATUTE
OF LIMITATIONS FREQUENTLY WILL BAR THE COMMISSIONER FROM RECOMPUTING
FOR EARLIER YEARS, AND BECAUSE OF THE POLICY UNDERLYING THE STATUE OF
LIMITATIONS-- THE FACT THAT SUCH RECOMPUTATIONS ARE IMMENSELY DIFFICULT
OR IMPOSSIBLE WHEN A LONG PERIOD HAS INTERVENED-- THE ROUGH RESULT OF
NOT TAKING ACCOUNT OF TAXES FOR THE YEAR OF INJURY BUT THEN TAXING
RECOVERY WHEN RECEIVED SEEMS THE MOST SATISFACTORY OUTCOME.  THE
DISTRICT COURT THEREFORE DID NOT ERR ON THIS QUESTION, AND THE COURT OF
APPEALS SHOULD NOT HAVE REQUIRED A RECOMPUTATION.     UNITED CONTENDS
THAT IF HANOVER HAD BOUGHT MACHINES INSTEAD OF LEASING THEM, IT WOULD
HAVE HAD TO INVEST ITS OWN CAPITAL IN THE MACHINES.  UNITED ARGUES THAT
THE DISTRICT COURT ERRED IN COMPUTING DAMAGES BECAUSE IT DID NOT
PROPERLY TAKE ACCOUNT OF THE COST OF CAPITAL TO HANOVER.  THE DISTRICT
COURT FOUND THAT IN THE YEARS IN QUESTION HANOVER WAS ABLE TO BORROW
MONEY FOR BETWEEN 2% AND 2.5% PER ANNUM, AND THAT HAD HANOVER BOUGHT
MACHINES IT WOULD HAVE OBTAINED THE NECESSARY CAPITAL BY BORROWING AT
ABOUT THIS RATE.  IT THEREFORE DEDUCTED AN INTEREST COMPONENT OF 2.5%
FROM THE PROFITS IT THOUGHT HANOVER WOULD HAVE EARNED BY PURCHASING
MACHINES.  OUR REVIEW OF THE RECORD CONVINCES US TAHT THE COURTS BELOW
DID NOT ERR IN THESE DETERMINATIONS; ON THE BASIS OF THE DETERMINATIONS
OF FACT, HANOVER'S DAMAGES WERE PROPERLY COMPUTED.  /16/ 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART, AND THE CASES ARE REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 463, UNITED SHOE MACHINERY CORP. V. HANOVER
SHOE, INC., ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  FOLLOWING THE DISTRICT COURT'S REJECTION OF UNITED'S
CONSTRUCTION OF JUDGE WYZANSKI'S OPINION AND DECREE, UNITED FILED A
MOTION REQUESTING THAT THE DISTRICT COURT CERTIFY THE QUESTION OF
CONSTRUCTION TO JUDGE WYZANSKI.  UNITED CONTENDS THAT THE DISTRICT
COURT ERRED IN DENYING THIS MOTION, BUT WE NEED NOT PASS UPON THE
MERITS OF UNITED'S NOVEL REQUEST, FOR THE DISTRICT COURT CLEARLY ACTED
WITHIN ITS PROPER DISCRETION IN DENYING AS UNTIMELY CERTIFICATION TO
ANOTHER COURT OF A QUESTION UPON WHICH IT HAD ALREADY RULED. 

/2/  "4.  ALL LEASES MADE BY DEFENDANT WHICH INCLUDE A TEN-YEAR
TERM, OR A FULL CAPACITY CLAUSE, OR DEFERRED PAYMENT CHARGES, AND ALL
LEASES UNDER WHICH DURING THE LIFE OF THL LEASES DEFENDANT HAS RENDERED
REPAIR AND OTHER SERVICE WITHOUT MAKING THEM SUBJECT TO SEPARATE,
SEGREGATED CHARGES, ARE DECLARED TO HAVE BEEN MEANS WHEREBY DEFENDANT
MONOPOLIZED THE SHOE MACHINERY MARKET."  110 F.SUPP.,AT 352. 

/3/  IN ITS OPINION ON REMEDY, IN ANSWERING UNITED'S OBJECTION TO
ITS CONCLUSION THAT THE DECREE SHOULD REQUIRE UNITED TO OFFER MACHINES
FOR SALE AS WELL AS FOR LEASE, THE COURT PLAINLY SAID THAT UNITED "HAS
USED ITS LEASES TO MONOPOLIZE THE SHOE MACHINERY MARKET.  AND IF
LEASING CONTINUES WITHOUT AN ALTERNATIVE SALES SYSTEM, UNITED WILL
STILL BE ABLE TO MONOPOLIZE THAT MARKET."  110 F.SUPP.,AT 350. 
CLEARLY, IF AFTER PURGING THE LEASES OF OBJECTIONABLE CLAUSES UNITED
WOULD STILL BE MONOPOLIZING BY LEASING BUT NOT SELLING ITS MACHINES,
THE LEASE ONLY POLICY MUST ALSO HAVE MADE A SUBSTANTIAL CONTRIBUTION TO
UNITED'S MONOPOLIZATION OF THE MARKET DURING THE PERIOD PRIOR TO THE
ENTRY OF THE JUDGMENT.  MOREOVER, IN ITS OPINION ON VIOLATION, WHERE
THE THREE PRINCIPAL SOURCES OF UNITED'S MARKET POWER WERE IDENTIFIED,
THE COURT POINTED TO "THE MAGNETIC TIES INHERENT IN ITS SYSTEM OF
LEASING, AND NOT SELLING, ITS MORE IMPORTANT MACHINES" AND TO THE
"'PARTNERSHIP'" ASPECTS OF LEASING BUT NOT SELLING THOSE MACHINES.  110
F.SUPP.,AT 344.  THE LEASES ASSURED "CLOSER AND MORE FREQUENT CONTACTS
BETWEEN UNITED AND ITS CUSTOMERS THAN WOULD EXIST IF UNITED WERE A
SELLER AND ITS CUSTOMERS WERE BUYERS."  ID., AT 343.  A SHOE
MANUFACTURER BY LEASING WAS "DETERRED MORE THAN IF HE OWNED THAT SAME
UNITED MACHINE, OR IF HE HELD IT ON A SHORT LEASE CARRYING SIMPLE
RENTAL PROVISIONS AND A REASONABLE CHARGE FOR CANCELATION BEFORE THE
END OF THE TERM."  ID., AT 340.  THE LEASE SYSTEM HAD "AIDED UNITED IN
MAINTAINING A PRICING SYSTEM WHICH DISCRIMINATES BETWEEN MACHINE
TYPES," ID., AT 344, DISCRIMINATION WHICH THE COURT LATER SAID HAD
EVIDENCED "UNITED'S MONOPOLY POWER, A BUTTRESS TO IT, AND A CAUSE OF
ITS PERPETUATION . . . ."  ID., AT 349. 

/4/  IN ITS BRIEF ON APPEAL FROM THE JUDGMENT AND DECREE RENDERED IN
THE GOVERNMENT'S CASE, UNITED RECOGNIZED THAT "(THE PRINCIPAL PRACTICES
WHICH THE (DISTRICT) COURT STRESSED WERE THAT DEFENDANT OFFERED
IMPORTANT COMPLICATED MACHINES ONLY FOR LEASE AND NOT FOR SEPARATE
CHARGE."  BRIEF FOR APPELLANT 6, UNITED SHOE MACHINERY CORP. V. UNITED
STATES, 347 U.S. 521 (1954).  UNITED ALSO SAID THAT "(EVIDENTLY THE
COURT BELOW REGARDED THE FACT THAT UNITED DISTRIBUTES ITS MORE
IMPORTANT MACHINS ONLY BY LEASE AND NOT BY SALE AS THE BASIC OBJECTION
TO THE SYSTEM."  ID., AT 170. 

/5/  THE COURT OF APPEALS AFFIRMED THIS FINDING AND WE DO NOT
DISTURB IT.  SEE ALSO N. 16, INFRA.  WE ALSO AGREE WITH THE COURTS
BELOW THAT IN THE CIRCUMSTANCES OF THIS CASE IF WAS UNNECESSARY FOR
HANOVER TO PROVE AN EXPLICIT DEMAND DURING THE DAMAGE PERIOD.  SEE
CONTINENTAL ORE CO. V. UNION CARBIDE & CARBON CORP., 370 U.S. 690, 699
(1962). 

/6/  THE CHRONOLOGY OF EVENTS WITH RESPECT TO THIS ISSUE IN THE
LOWER COURTS WAS AS FOLLOWS:  AFTER THE PRETRIAL CONFERENCE, A SEPARATE
ISSUE WHICH WAS THOUGHT MIGHT DETERMINE THE ACTION WAS SET FOR TRIAL
PURSUANT TO FED. RULE CIV. PROC. 42(B).  THE GENERAL QUESTION WAS
WHETHER, ASSUMING THAT HANOVER HAD PAID ILLEGALLY HIGH PRICES FOR
MACHINERY LEASED FROM UNITED, HANOVER HAD PASSED THE COST ON TO ITS
CUSTOMERS, AND IF SO WHETHER IT HAD SUFFERED LEGAL INJURY FOR WHICH IT
COULD RECOVER UNDER THE ANTITRUST LAWS.  AFTER EVIDENCE HAD BEEN TAKEN
ON THE ISSUE, JUDGE GOODRICH, SITTING BY DESIGNATION, RULED THAT WHEN
HANOVER HAD BEEN FORCED TO PAY EXCESSIVE PRICES FOR MACHINERY LEASED
FORM UNITED, IT HAD SUFFERED A LEGAL INJURY:  "THIS EXCESSIVE PRICE IS
THE INJURY."  185 F.SUPP.  826, 829 (D.C. M.D. PA. 1960).  HE ALSO
REJECTED THE ARGUMENT "THAT THE DEFENDANT IS RELIEVED OF LIABILITY
BECAUSE THE PLAINTIFF PASSED ON ITS LOSS TO ITS CUSTOMERS."  IBID.  IN
HIS VIEW IT WAS UNNECESSARY TO DETERMINE WHETHER HANOVER HAD PASSED ON
THE ILLEGAL BURDEN BECAUSE HANOVER'S INJURY WAS COMPLETE WHEN IT PAID
THE EXCESSIVE RENTALS AND BECAUSE "'(THE GENERAL TENDENCY OF THE LAW,
IN REGARD TO DAMAGES AT LEAST, IS NOT TO GO BEYOND THE FIRST STEP'" AND
TO EXONERATE A DEFENDANT BY REASON OF REMOTE CONSEQUENCES.  ID., AT 830
(QUOTING FROM SOUTHERN PACIFIC CO. V. DARNELL-TAENZER LUMBER CO., 245
U.S. 531, 533 (1918)).  THE COURT OF APPEALS HEARD AN INTERLOCUTORY
APPEAL PURSUANT TO 28 U.S.C. 1292(B) AND AFFIRMED.  281 F.2D 481 (C.A.
3D CIR. 1960).  CERTIORARI WAS DENIED.  364 U.S. 901 (1960).  UNITED
PRESERVED THE ISSUE AND PRESENTED IT AGAIN TO THE COURT OF APPEALS IN
APPEALING THE TREBLE-DAMAGE JUDGMENT ENTERED AFTER TRIAL OF THE MAIN
CASE.  THE COURT OF APPEALS ADHERED TO THE PRINCIPLES OF ITS PRIOR
DECISION.  UNITED BROUGHT THE QUESTION HERE. 

/7/  "IT IS, HOWEVER, CONTENDED THAT EVEN IF IT BE ASSUMED THE FACTS
SHOW AN ILLEGAL COMBINATION, THEY DO NOT SHOW INJURY TO THE PLAINTIFFS
BY REASON THEREOF.  THE CONTENTION IS UNTENABLE.  SECTION 7 OF THE ACT
GIVES A CAUSE OF ACTION TO ANY REASON OF ANYTHING FORBIDDEN BY THE ALT
AND THE RIGHT TO RECOVER THREE-FOLD THE DAMAGES BY HIM SUSTAINED.  THE
PLAINTIFFS ALLEGED A CHARGE OVER A REASONABLE RATE AND THE AMOUNT OF
IT.  IF THE CHARGE BE TRUE THAT MORE THAN A REASONABLE RATE WAS SECURED
BY THE COMBINATION, THE EXCESS OVER WHAT WAS REASONABLE WAS AN ELEMENT
OF INJURY.  TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204 U.S.
426, 436.  THE UNREASONABLENESS OF THE RATE AND TO WHAT EXTENT
UNREASONABLE WAS SUBMITTED TO THE JURY AND THE VERDICT REPRESENTED
THEIR CONCLUSION."  243 U.S.,AT 88. 

/8/  SOUTHERN PACIFIC CO. V. DARNELL-TAENZER LUMBER CO., 245 U.S.
531 (1918), INVOLVED AN ACTION FOR REPARATIONS BROUGHT BY SHIPPERS
AGAINST A RAILROAD.  THE SHIPPERS ALLEGED EXACTION OF AN UNREASONABLY
HIGH RATE.  TO THE CLAIM THAT THE SHIPPERS SHOULD NOT RECOVER BECAUSE
THEY WERE ABLE TO PASS ON TO THEIR CUSTOMERS THE DAMAGE THEY SUSTAINED
BY PAYING THE CHARGE, THE COURT SAID THAT THE ANSWER WAS NOT
DIFFICULT: 

"THE GENERAL TENDENCY OF THE LAW, IN REGARD TO DAMAGES AT LEAST, IS
NOT TO GO BEYOND THE FIRST STEP.  AS IT DOES NOT ATTRIBUTE REMOTE
CONSEQUENCES TO A DEFENDANT SO IT HOLDS HIM LIABLE IF PROXIMATELY THE
PLAINTIFF HAS SUFFERED A LOSS.  THE PLAINTIFFS SUFFERED LOSSES TO THE
AMOUNT OF THE VERDICT WHEN THEY PAID.  THEIR CLAIM ACCRUED AT ONCE IN
THE THEORY OF THE LAW AND IT DOES NOT INQUIRE INTO LATER EVENTS . . . .
THE CARRIER OUGHT NOT TO BE ALLOWED TO RETAIN HIS ILLEGAL PROFIT, AND
THE ONLY ONE WHO CAN TAKE IT FROM WHOM THE CARRIER TOOK THE SUM . . . .
PROBABLY IN THE END THE PUBLIC PAYS THE DAMAGES IN MOST CASES OF
COMPENSATED TORTS."  245 U.S.,AT 533-534.  ADAMS V. MILLS, 286 U.S. 397
(1932), IS TO THE SAME EFFECT.  SEE ALSO I.C.C. V. UNITED STATES, 289
U.S. 385 (1933). 

KEOGH V. CHICAGO & N.W.R. CO., 260 U.S. 156 (1922), IS RELIED UPON
BY UNITED AS STATING A CONTRARY RULE.  THERE THE COURT AFFIRMED A
JUDGMENT ON THE PLEADINGS IN A SHIPPER'S ACTION UNDER THE ANTITRUST
LAWS CHARGING A CONSPIRACY AMONG RAILROADS TO SET UNREASONABLY HIGH
RATES.  BECAUSE THE RATES HAD BEEN APPROVED AS REASONABLE AFTER A
PROCEEDING BEFORE THE INTERSTATE COMMERCE COMMISSION, THE SHIPPER WAS
HELD TO HAVE NO CAUSE OF ACTION UNDER THE ANTITRUST LAWS.  AFTER GIVING
THIS AND OTHER REASONS FOR ITS JUDGMENT, THE COURT ENDED ITS OPINION BY
SAYING THAT IT WOULD HAVE BEEN IMPOSSIBLE FOR THE SHIPPER TO HAVE
PROVED DAMAGES SINCE NO COURT COULD SAY THAT IF THE RATE HAD BEEN LOWER
THE SHIPPER WOULD HAVE BEEN IMPOSSIBLE FOR THE SHIPPER TO HAVE PROVED
DAMAGES SINCE NO COURT COULD SAY THAT IF THE RATE HAD BEEN LOWER THE
SHIPPER WOULD HAVE ENJOYED THE DIFFERENCE; THE BENEFIT MIGHT HAVE GONE
TO HIS CUSTOMERS.  THE COURT, HOWEVER, WAS CAREFUL TO SAY EARLIER IN
ITS OPINION THAT THE RESULT WOULD HAVE BEEN DIFFERENT HAD THE RATE BEEN
UNREASONABLY HIGH, AN APPROACH CONFIRMED BY MR. JUSTICE BRANDEIS IN
ADAMS V. MILLS, SULPRA.  WE ASCRIBE NO GENERAL SIGNIFICANCE TO THE
KEOGH DICTUM FOR CASES WHERE THE PLAINTIFF IS FREE TO PROVE THAT HE HAS
BEEN CHARGED AN ILLEGALLY HIGH PRICE.  IT SHOULD ALSO BE NOTED THAT THE
COURT, IN SPEAKING OF THE IMPOSSIBILITY OF PROVING DAMAGES, INDICATED
NO INTENTION TO PRECLUDE RECOVERY IN CASES SUCH AS CHATTANOOGA FOUNDRY
OR THOMSEN V. CAYSER, SUPRA. 

THAT IS WHERE THE MATTER STOOD IN THIS COURT WHEN THE ISSUE CAME TO
BE PRESSED WITH SOME REGULARITY IN THE LOWER FEDERAL COURTS IN TREBLE
DAMAGE SUITS BROUGHT BY CUSTOMERS OF VENDORS WHO WERE CHARGED WITH
VIOLATING THE SHERMAN ACT BY PRICE FIXING OR MONOPOLIZATION.  SOME
COURTS SUSTAINED THE DEFENSE, BOTH WHERE THE PLAINTIFF COMPLAINED OF
OVERCHARGING FOR MATERIALS OR SERVICES USED BY HIM TO PRODUCE HIS OWN
PRODUCT, E.G., WOLFE V. NATIONAL LEAD CO., 225 F.2D 427 (C.A. 9TH
CIR.), CERT. DENIED, 350 U.S. 915 (1955), AND WHERE THE PRICE FIXING
CONCERNED ARTICLES PURCHASED FOR RESALE, E.G., MILLER MOTORS, INC. V.
FORD MOTOR CO., 252 F.2D 441 (C.A. 4TH CIR. 1958); TWIN PORTS OIL CO.,
119 F.2D 747 (C.A. 8TH CIR.), CERT. DENIED, 314 U.S. 644 (1941). 
OTHERS, BEGINNING WITH JUDGE GOODRICH'S 1960 DECISION IN THE CASE
BEFORE US, DEEMED IT IRRELEVANT THAT THE PLAINTIFF MAY HAVE PASSED ON
THE BURDEN OF THE OVERCHARGE.  RECENTLY, FOR EXAMPLE, THE DEFENSE WAS
REJECTED IN THE CASES BROUGHT AGAINST MANUFACTURERS OF ELECTRICAL
EQUIPMENT BY LOCAL UTILITIES WHO PURCHASED EQUIPMENT AT UNLAWFULLY
INFLATED PRICES AND USED IT TO PRODUCE ELECTRICITY SOLD TO THE ULTIMATE
CONSUMER.  E.G., ATLANTIC CITY ELECTRIC CO. V. GENERAL ELECTRIC CO.,
226 F.SUPP.  59 (D.C.S.D.N.Y.), INTERLOCUTORY APPEAL REFUSED, 337 F.2D
844 (C.A. 2D CIR. 1964). 

CONCERNING THE PASSING-ON DEFENSE GENERALLY, SEE CLARK, THE TREBLE
DAMAGE BONANZA:  NEW DOCTRINES OF DAMAGES IN PRIVATE ANTITRUST SUITS,
52 MICH.L.REV.  363 (1954); POLLOCK, STANDING TO SUE, REMOTENESS OF
INJURY, AND THE PASSING-ON DOCTRINE, 32 A.B.A.ANTITRUSTL.J. 5 (1966);
NOTE, PRIVATE TREBLE DAMAGE ANTITRUST SUITS:  MEASURE OF DAMAGES FOR
DESTRUCTION OF ALL OR PART OF A BUSINESS, 80 HARV.L.REV.  1566, 1584
1586 (1967). 

/9/  THE MERE FACT THAT A PRICE RISE FOLLOWED AN UNLAWFUL COST
INCREASE DOES NOT SHOW THAT THE SUFFERER OF THE COST INCREASE WAS
UNDAMAGED.  HIS CUSTOMERS MAY HAVE BEEN RIPE FOR HIS PRICE RISE
EARLIER; IF A COST RISE IS MERELY THE OCCASION FOR A PRICE INCREASE A
BUSINESSMAN COULD HAVE IMPOSED ABSENT THE RISE IN HIS COSTS, THE FACT
THAT HE WAS EARLIER NOT ENJOYING THE BENEFITS OF THE HIGHER PRICE
SHOULD NOT PERMIT THE SUPPLIER WHO CHARGES AN UNLAWFUL PRICE TO TAKE
THOSE BENEFITS FROM HIM WITHOUT BEING LIABLE FOR DAMAGES.  THIS
STATEMENT MERELY RECOGNIZES THE USUAL PRINCIPLE THAT THE POSSESSOR OF A
RIGHT CAN RECOVER FOR ITS UNLAWFUL DEPRIVATION WHETHER OR NOT HE WAS
PREVIOUSLY EXERCISING IT. 

/10/  SOME COURTS APPEAR TO HAVE TREATED PRICE DISCRIMINATION CASES
UNDER THE ROBINSON-PATMAN ACT AS IN THIS CATEGORY.  SEE, E.G., AMERICAN
CAN CO. V. RUSSELLVILLE CANNING CO., 191 F.2D 38 (C.A. 8TH CIR. 1951);
AMERICAN CAN CO. V. BRUCE'S JUICES, 187 F.2D 919, OPINION MODIFIED, 190
F.2D 73 (C.A. 5TH CIR.), PETITION FOR CERT. DISMISSED, 342 U.S. 875
(1951). 

/11/  THE COURT OF APPEALS HELD THAT HANOVER WAS ENTITLED TO DAMAGES
ONLY UP TO JUNE 1, 1955, THE DATE UPON WHICH JUDGE WYZANSKI APPROVED
UNITED'S PLAN FOR TERMINATING ALL OUTSTANDING LEASES AND CONVERTING THE
LESSEE'S RIGHTS TO OWNERSHIP.  BECAUSE HANOVER COULD HAVE LEGALLY
REQUIRED UNITED TO CONVERT FROM LEASING TO SELLING AS OF JUNE 1, 1955,
THE COURT OF APPEALS HELD IT WAS NOT ENTITLED TO DAMAGES FOR UNITED'S
FAILURE TO OFFER MACHINES FOR SALE AFTER THAT DATE.  THIS DETERMINATION
HAS NOT BEEN CHALLENGED IN THIS COURT. 

/12/  ALTHOUGH THE DEFENDANTS IN AMERICAN TOBACCO HAD BEEN FOUND
GUILTY OF CONSPIRACY TO RESTRAIN TRADE AND OF ATTEMPT AND CONSPIRACY TO
MONOPOLIZE AS WELL AS OF MONOPOLIZATION ITSELF, THE GRANT OF CERTIORARI
WAS "LIMITED TO THE QUESTION WHETHER ACTUAL EXCLUSION OF COMPETITORS IS
NECESSARY TO THE CRIME OF MONOPOLIZATION UNDER SEC. 2 OF THE SHERMAN
ACT."  324 U.S. 836 (1945).  AFTER NOTING THAT "SECS.  1 AND 2 OF THE
SHERMAN ACT REQUIRE PROOF OF CONSPIRACIES WHICH ARE RECIPROCALLY
DISTINGUISHABLE FROM AND INDEPENDENT OF EACH OTHER . . . ," 328 U.S.,AT
788, THE COURT DETERMINED THAT THE JURY COULD HAVE FOUND THAT THE
DEFENDANTS HAD COMBINED AND CONSPIRED TO MONOPOLIZE, ID., AT 797, AND
THAT IT WOULD BE "ONLY IN CONJUNCTION WITH SUCH A COMBINATION OR
CONSPIRACY THAT THESE CASES WILL CONSTITUTE A PRECEDENT," ID., AT 798. 
THE COURT STATED THAT "(THE AUTHORITIES SUPPORT THE VIEW THAT THE
MATERIAL CONSIDERATION IN DETERMINING WHETHER A MONOPOLY EXISTS IS NOT
THAT PRICES ARE RAISED AND THAT COMPETITION ACTUALLY IS EXCLUDED BUT
THAT POWER EXISTS TO RAISE PRICES OR TO EXCLUDE COMPETITION WHEN IT IS
DESIRED TO DO SO," 328 U.S.,AT 811 AND QUOTED WITH APPROVAL FROM UNITED
STATES V. PATTEN, 187 F. 664, 672 (C.C.S.D.N.Y. (1911)), REVERSED ON
OTHER GROUNDS, 226 U.S. 525 (1913), THAT FOR THERE TO BE MONOPOLIZATION
"(IT IS NOT NECESSARY THAT THE POWER THUS OBTAINED SHOULD BE
EXERCISED.  ITS EXISTENCE IS SUFFICIENT."  THE COURT ALSO SAID: 

"A CORRECT INTERPRETATION OF THE STATUTE AND OF THE AUTHORITIES
MAKES IT THE CRIME OF MONOPOLIZING, UNDER SEC. 2 OF THE SHERMAN ACT,
FOR PARTIES, AS IN THESE CASES, TO COMBINE OR CONSPIRE TO ACQUIRE OR
MAINTAIN THE POWER TO EXCLUDE COMPETITORS FROM ANY PART OF THE TRADE OR
COMMERCE AMONG THE SEVERAL STATES OR WITH FOREIGN NATIONS, PROVIDED
THEY ALSO HAVE SUCH A POWER THAT THEY ARE ABLE, AS A GROUP, TO EXCLUDE
ACTUAL OR POTENTIAL COMPETITION FROM THE FIELD AND PROVIDED THAT THEY
HAVE THE INTENT AND PURPOSE TO EXERCISE THAT POWER.  SEE UNITED STATES
V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 226, N. 59 AND AUTHORITIES
CITED. 

"IT IS NOT THE FORM OF THE COMBINATION OR THE PARTICULAR MEANS USED
BUT THE RESULT TO BE ACHIEVED THAT THE STATUTE CONDEMNS.  IT IS NOT OF
IMPORTANCE WHETHER THE MEANS USED TO ACCOMPLISH THE UNLAWFUL OBJECTIVE
ARE IN THEMSELVES LAWFUL OR UNLAWFUL."  328 U.S.,AT 809. 

THE COURT ALSO WELCOMED THE OPPORTUNITY TO ENDORSE, 328 U.S.,AT 813
814, THE FOLLOWING VIEWS OF CHIEF JUDGE HAND IN ALCOA, 148 F.2D, AT 431
432: 

"(ALCOA) INSISTS THAT IT NEVER EXCLUDED COMPETITORS; BUT WE CAN
THINK OF NO MORE EFFECTIVE EXCLUSION THAN PROGRESSIVELY TO EMBRACE EACH
NEW OPPORTUNITY AS IT OPENED, AND TO FACE EVERY NEWCOMER WITH NEW
CAPACITY ALREADY GEARED INTO A GREAT ORGANIZATION, HAVING THE ADVANTAGE
OF EXPERIENCE, TRADE CONNECTIONS AND THE ELITE OF PERSONNEL.  ONLY IN
CASE WE INTERPRET 'EXCLUSION' AS LIMITED TO MANOEUVRES NOT HONESTLY
INDUSTRIAL, BUT ACTUATED SOLELY BY A DESIRE TO PREVENT COMPETITION, CAN
SUCH A COURSE, INDEFATIGABLY PURSUED, BE DEEMED NOT 'EXCLUSIONARY.'  SO
TO LIMIT IT WOULD IN OUR JUDGMENT EMASCULATE THE ACT; WOULD PERMIT JUST
SUCH CONSOLIDATIONS AS IT WAS DESIGNED TO PREVENT. 

   .          .          .          . 

"IN ORDER TO FALL WITHIN SEC. 2, THE MONOPOLIST MUST HAVE BOTH THE
POWER TO MONOPOLIZE, AND THE INTENT TO MONOPOLIZE.  TO READ THE PASSAGE
AS DEMANDING ANY 'SPECIFIC,' INTENT, MAKES NONSENSE OF IT, FOR NO
MONOPOLIST MONOPOLIZES UNCONSCIOUS OF WHAT HE IS DOING." 

/13/  ANY VIEW OF THE EARLIER LAW OF MONOPOLIZATION WHICH WOULD
ATTEMPT, ERRONEOUSLY IN OUR OPINION, TO FIND A REQUIREMENT OF PREDATORY
PRACTICES MUST RELY HEAVILY ON CERTAIN DICTA IN UNITED STATES V. UNITED
STATES STEEL CORP., 251 U.S. 417, 451 (1920) (MR. JUSTICE MCKENNA FOR A
FOUR-TO-THREE COURT), AND UNITED STATES V. INTERNATIONAL HARVESTER CO.,
274 U.S. 693, 708 (1927) (MR. JUSTICE SANFORD REITERATING THE DICTA IN
U.S. STEEL).  THE COMMENTATORS CITED BY UNITED FOR THE PROPOSITION THAT
PREDATORY PRACTICES WERE REQUIRED PRIOR TO ALCOA-AMERICAN TOBACCO PLACE
MAJOR RELIANCE ON THESE DICTA.  IN ANY EVENT, THE CURSORY AND
CONCLUSORY NATURE OF THESE WRITINGS CLEARLY DOES NOT PROVIDE
SUFFICIENTLY STRONG PROOF OF A PREVAILING OPINION AS TO THE LAW TO HAVE
PERMITTED THE SORT OF JUSTIFIABLE RELIANCE WHICH ALONE COULD GENERATE A
PROSPECTIVITY ARGUMENT. 

/14/  UNITED MAKES THE INDEPENDENT ARGUMENT THAT JUDGE WYZANSKI'S
DECISION IN THE GOVERNMENT'S CASE SO FUNDAMENTALLY ALTERED THE LAW OF
MONOPOLIZATION THAT IT SHOULD NOT BE HELD LIABLE FOR DAMAGES PRIOR TO
THE DATE THE DECISION WAS HANDED DOWN, FEBRUARY 18, 1953.  WE REJECT
THIS CONTENTION FOR THE REASONS SET FORTH IN THE TEXTUAL DISCUSSION OF
ALCOA-AMERICAN TOBACCO AND THE PREVIOUS UNITED CASES. 

/15/  UNITED HAS ALSO ADVANCED THE ARGUMENT THAT BECAUSE THE
EARLIEST IMPACT ON HANOVER OF UNITED'S LEASE ONLY POLICY OCCURRED IN
1912, HANOVER'S CAUSE OF ACTION AROSE DURING THAT YEAR AND IS NOW
BARRED BY THE APPLICABLE PENNSYLVANIA STATUTE OF LIMITATIONS.  THE
COURT OF APPEALS CORRECTLY REJECTED UNITED'S ARGUMENT IN ITS
SUPPLEMENTAL OPINION.  WE ARE NOT DEALING WITH A VIOLATION WHICH, IF IT
OCCURS AT ALL, MUST OCCUR WITHIN SOME SPECIFIC AND LIMITED TIME SPAN. 
CF. EMICH MOTORS CORP. V. GENERAL MOTORS CORP., 229 F.2D 714 (C.A. 7TH
CIR. 1956), UPON WHICH UNITED RELIES.  RATHER, WE ARE DEALING WITH
CONDUCT WHICH CONSTITUTED A CONTINUING VIOLATION OF THE SHERMAN ACT AND
WHICH INFLICTED CONTINUING AND ACCUMULATING HARM ON HANOVER.  ALTHOUGH
HANOVER COULD HAVE SUED IN 1912 FOR THE INJURY THEN BEING INFLICTED, IT
WAS EQUALLY ENTITLED TO SUE IN 1955. 

/16/  UNITED ALSO SAYS THAT BECAUSE HANOVER'S MANAGERS WOULD HAVE
COMPUTED THEIR CAPITAL COSTS DIFFERENTLY, THEY WOULD NOT IN FACT HAVE
DECIDED TO STOP LEASING MACHINES AND TO BEGIN PURCHASING THEM.  THE
DISTRICT COURT FOUND, HOWEVER, THAT HANOVER, HAD IT BEEN GIVEN THE
OPPORTUNITY, WOULD HAVE BOUGHT RATHER THAN LEASED THE MACHINES OFFERED
BY UNITED.  THIS FINDING, AFFIRMED BY THE COURT OF APPEALS, IS
SUPPORTED BY THE EVIDENCE, AND WE DO NOT DISTURB IT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

        APPENDIX TO OPINION OF THE COURT. 

        EXCERPTS FROM JUDGE WYZANSKI'S OPINION IN UNITED STATES V.

           UNITED MACHINERY CORP., 110 F.SUPP.  295, 323-325 (D.

           MASS. 1953). 

EFFECTS OF THE LEASING SYSTEM. 

THE EFFECT OF UNITED'S LEASING SYSTEM AS IT WORKS IN PRACTICE MAY BE
EXAMINED FROM THE VIEWPOINTS OF UNITED, OF THE SHOE MANUFACTURERS, AND
OF COMPETITORS POTENTIAL OR ACTUAL. 

FOR UNITED THESE ARE THE ADVANTAGES.  (A) UNITED HAS ENJOYED A
GREATER STABILITY OF ANNUAL REVENUES THAN IS CUSTOMARY AMONG
MANUFACTURERS OF OTHER CAPITAL GOODS.  BUT THIS IS NOT DUE EXCLUSIVELY
TO THE PRACTICE OF LEASING AS DISTINGUISHED FROM SELLING.  IT IS
ATTRIBUTABLE TO THE EFFECTS OF LEASING WHEN, AS IS THE CASE WITH
UNITED, THE LESSOR ALREADY HAS A PREDOMINANT SHARE OF THE MARKET.  (B)
UNITED HAS BEEN ABLE TO CONDUCT RESEARCH ACTIVITIES MORE FAVORABLY THAN
IF IT SOLD ITS MACHINES OUTRIGHT.  THE LEASING SYSTEM, ESPECIALLY THE
SERVICE ASPECT OF THAT SYSTEM, HAS GIVEN UNITED CONSTANT ACCESS TO SHOE
MANUFACTURERS AND THEIR PROBLEMS.  THIS HAS PROMOTED UNITED'S KNOWLEDGE
OF THEIR PROBLEMS AND HAS STIMULATED UNITED'S SHOE MACHINERY
DEVELOPMENT.  THIS RESEARCH KNOWLEDGE WOULD NOT BE DIMINISHED
SUBSTANTIALLY IF UNITED'S SERVICE ACTIVITIES COVERED FEWER FACTORIES. 
BUT IF ALL ACCESS TO SHOE FACTORIES WERE DENIED THE DIMINUTION WOULD BE
OF GREAT CONSEQUENCE TO RESEARCH.  (C) THE STEADINESS OF REVENUES,
ATTRIBUTABLE, AS STATED ABOVE, NOT TO THE LEASES ALONE, BUT TO LEASES
IN A MARKET DOMINATED BY THE LESSOR, HAS TENDED TO PROMOTE FAIRLY
STEADY APPROPRIATIONS TO RESEARCH.  BUT THESE APPROPRIATIONS DECLINED
IN THE 1929 DEPRESSION.  RESEARCH EXPENDITURES MIGHT OR MIGHT NOT BE
INCREASED IF COMPETITION WERE INCREASED.  THE EXPERIENCE OF UNITED WHEN
FACED WITH COMPO'S CEMENT PROCESS SUGGESTS THAT DECLINING REVENUES, NO
LESS THAN STEADY REVENUES, MAY PROMOTE RESEARCH EXPENDITURES.  (D)
UNITED HAS KEPT ITS LEASED MACHINES IN THE BEST POSSIBLE CONDITION. 
(E) UNDER THE LEASING SYSTEM UNITED HAS ENJOYED A WIDE DISTRIBUTION OF
MACHINERY IN A RELATIVELY NARROW MARKET.  BUT THIS IS MERELY ANOTHER
WAY OF SAYING THAT UNITED'S MARKET POSITION, MARKET POWER, LEASE
PROVISIONS, AND LEASE PRACTICES GIVE IT AN ADVANTAGE OVER COMPETITORS. 

UPON SHOE MANUFACTURERS, UNITED'S LEASING SYSTEM HAS HAD THESE
EFFECTS.  IT HAS BEEN EASY FOR A PERSON WITH MODEST CAPITAL AND OF
SOMETHING LESS THAN SUPERIOR EFFICIENCY TO BECOME A SHOE MANUFACTURER. 
HE CAN GET MACHINES WITHOUT BUYING THEM; HIS MACHINES ARE SERVICED
WITHOUT SEPARATE CHARGES; HE CAN CONVENIENTLY EXCHANGE AN OLDER UNITED
MODEL FOR A NEW UNITED MODEL; HE CAN CHANGE FROM ONE PROCESS TO
ANOTHER; AND HIS COSTS OF MACHINERY PER PAIR OF SHOES PRODUCED CLOSELY
APPROXIMATE THE MACHINERY TO PRODUCE SHOES BY THE SAME PROCESS. 
LARGELY AS A CONSEQUENCE OF THESE FACTORS, THERE WERE IN 1950, 1,300
FACTORIES EACH HAVING A DAILY PRODUCTION CAPACITY OF 3,000 PAIRS A DAY
OR LESS; 100 FACTORIES EACH HAVING A CAPACITY OF 3,000 TO 8,000 PAIRS;
AND 40 LARGER MANUFACTURERS.  MANY OF THESE LARGER MANUFACTURERS, WHO
COLLECTIVELY ACCOUNT FOR 40% OF THE SHOE PRODUCTION OF THE UNITED
STATES, STARTED IN A SMALL WAY AND FLOURISHED UNDER UNITED'S LEASING
SYSTEM.  MOREOVER THE TESTIMONY IN THIS CASE INDICATES VIRTUALLY NO
SHOE MANUFACTURERS WHO ARE DISSATISFIED WITH THE PRESENT SYSTEM.  IT
CANNOT BE SAID WHETHER THIS ABSENCE OF EXPRESSED DISSATISFACTION IS DUE
TO LACK OF ACTUAL DISSATISFACTION, TO PRACTICAL MEN'S PREFERENCE FOR
WHAT THEY REGARD AS A FAIR SYSTEM, EVEN IF IT SHOULD BE MONOPOLISTIC,
OR TO FEAR, INERTIA, OR RELUCTANCE TO TESTIFY. 

HOWEVER, WHILE UNITED'S SYSTEM HAS MADE IT EASIER TO ENTER THE SHOE
MANUFACTURING INDUSTRY THAN TO ENTER MANY, PERHAPS MOST, OTHER
MANUFACTURING INDUSTRIES, IT HAS NOT NECESSARILY PROMOTED IN THE SHOE
MANUFACTURING FIELD THE GOALS OF A COMPETITIVE ECONOMY AND AN OPEN
SOCIETY.  WITHOUT ATTEMPTING TO MAKE FINDINGS THAT ARE MORE PRECISE
THAN THE EVIDENCE WARRANTS, THIS MUCH CAN BE DEFINITELY STATED.  IF
UNITED SHOE MACHINERY WERE AVAILABLE UPON A SALE BASIS, THEN-- 

(A) SOME MANUFACTURERS WOULD BE ABLE TO SECURE CREDIT WHETHER BY
CONDITIONAL SALES, CHATTEL MORTGAGES, OR OTHER DEVICES. 

(B) UNDER SUCH A SYSTEM, THERE IS NO REASON TO SUPPOSE THAT A
PURCHASER'S FIRST INSTALLMENT ON A MACHINE WOULD SIGNIFICANTLY EXCEED
THE DEPOSIT NOW OFTEN REQUIRED OF A NEW SHOE MANUFACTURER BY UNITED. 

(C) A FEW SHOE MANUFACTURERS WOULD BE ABLE TO BORROW AT RATES OF
INTEREST COMPARABLE TO THE INTEREST RATES AT WHICH UNITED BORROWS, OR
RAISES CAPITAL. 

(D) SOME SHOE MANUFACTURERS WOULD BE ABLE TO PROVIDE FOR THEMSELVES
SERVICE AT A COST LESS THAN THE AVERAGE COST TO UNITED OF SUPPLYING
SERVICE TO ALL LESSEES OF ITS MACHINES. 

(E) THOSE MANUFACTURERS WHO BOUGHT UNITED MACHINES WOULD NOT BE
SUBJECT, AS ARE THOSE MANUFACTURERS WHO LEASE UNITED MACHINES, TO THE
UNILATERAL DECISION OF UNITED WHETHER OR NOT TO CONTINUE OR MODIFY
THOSE INFORMAL POLICIES WHICH ARE NOT WRITTEN IN THE LEASES AND TO
WHICH UNITED IS NOT EXPRESSLY COMMITTED FOR ANY SPECIFIC FUTURE
PERIOD.  WHILE THERE IS NO EVIDENCE THAT UNITED PLANS ANY CHANGE IN ITS
INFORMAL POLICIES, AND WHILE UNITED HAS NOT HERETOFORE PROCEEDED TO
ALTER ITS INFORMAL POLICIES ON THE BASIS OF ITS APPROVAL OR DISAPPROVAL
OF INDIVIDUAL MANUFACTURERS, UNITED HAS NOT EXPRESSLY COMMITTED ITSELF
TO CONTINUE, FOR EXAMPLE, ITS 1935 PLAN FOR RETURN OF MACHINES, ITS
RIGHT OF DEDUCTION FUND, ITS WAIVER FOR 4 MONTHS OF UNIT CHARGES, OR
ITS PRESENT HIGH STANDARD OF SERVICE.  UNITED'S RESERVED POWER WITH
RESPECT TO THESE MATTERS GIVES IT SOME GREATER DEGREE OF PSYCHOLOGICAL,
AND SOME GREATER DEGREE OF ECONOMIC CONTROL, THAN A SELLER OF MACHINERY
WOULD HAVE. 

(F) SOME MANUFACTURERS WHO HAD BOUGHT MACHINERY WOULD FIND THAT
FINANCIAL AND PSYCHOLOGICAL CONSIDERATIONS MADE THEM MORE WILLING THAN
LESSEES WOULD BE, TO DISPOSE OF ALREADY ACQUIRED UNITED MACHINES AND TO
TAKE ON COMPETITORS' MACHINES IN THEIR PLACE. 

IN LOOKING AT UNITED'S LEASING SYSTEM FROM THE VIEWPOINT OF
POTENTIAL AND ACTUAL COMPETITION, IT MUST BE CONFESSED AT THE OUTSET,
THAT ANY SYSTEM OF SELLING OR LEASING ONE COMPANY'S MACHINES WILL, OF
COURSE, IMPEDE TO SOME EXTENT THE DISTRIBUTION OF ANOTHER COMPANY'S
MACHINES.  IF A SHOE MANUFACTURER HAS ALREADY ACQUIRED ONE COMPANY'S
MACHINERY EITHER BY OUTRIGHT PURCHASE, BY CONDITIONAL PURCHASE, OR ON
LEASE ON ANY TERMS WHATSOEVER, THE EXISTENCE OF THAT MACHINE IN THE
FACTORY IS A POSSIBLE IMPEDIMENT TO THE MARKETING OF A COMPETITIVE
MACHINE. 

YET AS ALREADY NOTED, A SHOE MANUFACTURER MAY PSYCHOLOGICALLY OR
ECONOMICALLY BE MORE IMPEDED BY A LEASING THAN BY A SELLING SYSTEM. 
AND THIS GENERAL OBSERVATION IS BUTTRESSED BY A STUDY OF FEATURES IN
THE UNITED LEASING SYSTEM WHICH HAVE A SPECIAL DETERRENT EFFECT. 
THOUGH THESE FEATURES ARE STATED SEPARATELY, AND SOME OF THEM ALONE ARE
IMPORTANT IMPEDIMENTS, THEY MUST BE APPRAISED COLLECTIVELY TO
APPRECIATE THE FULL DETERRENT EFFECT. 

(A) THE TEN YEAR TERM IS A LONG COMMITMENT. 

(B) A SHOE MANUFACTURER WHO ALREADY HAS A UNITED LEASED MACHINE
WHICH CAN PERFORM ALL THE AVAILABLE WORK OF A PARTICULAR TYPE MAY BE
RELUCTANT TO EXPERIMENT WITH A COMPETITIVE MACHINE TO THE EXTENT HE
WOULD WISH.  HE MAY HESITATE TO ASK FOR PERMISSION TO AVOID THE FULL
CAPACITY CLAUSE.  IF PERMISSION IS GIVEN FOR AN EXPERIMENTAL PERIOD HE
MAY FIND THE EXPERIMENTAL PERIOD TOO SHORT.  THUS A COMPETITOR MAY NOT
GET A CHANCE TO HAVE HIS MACHINE ADEQUATELY TRIED OUT BY A SHOE
MANUFACTURER.  IF A SHOE MANUFACTURER PREFERS A COMPETITIVE MACHINE TO
A UNITED MACHINE ON HAND, HE MAY NOT KNOW THE EXACT RATE AT WHICH
FUTURE PAYMENTS MAY BE COMMUTED.  IF HE KNOWS, HE MAY FIND THAT A FRESH
OUTLAY TO MAKE THOSE COMMUTED PAYMENTS (WHICH ADMITTEDLY ARE NOT SOLELY
FOR REVENUE BUT ALSO ARE FOR PROTECTION AGAINST COMPETITION, AND WHICH
ADMITTEDLY DISCRIMINATE IN FAVOR OF A LESSEE WHO TAKES A NEW UNITED
MACHINE AND NOT A COMPETITOR'S MACHINE) PLUS THE RENTALS HE HAS ALREADY
PAID COST HIM MORE THAN IF HE HAD BOUGHT A SIMILAR MACHINE IN THE FIRST
PLACE AND WERE NOW TO DISPOSE OF IT IN TRADE OR IN A SECOND-HAND
MARKET.  THUS FOR A MAKER OF COMPETITIVE MACHINES HE MAY BE A LESS
LIKELY CUSTOMER THAN IF UNITED HAD INITIALLY ALLOWED HIM TO BUY THE
MACHINE.     (C) UNITED'S LEASE SYSTEM MAKES IMPOSSIBLE A SECOND-HAND
MARKET IN ITS OWN MACHINES.  THIS HAS TWO EFFECTS.  IT PREVENTS UNITED
FROM SUFFERING THAT KIND OF COMPETITION WHICH A SECOND-HAND MARKET
OFFERS.  ALSO IT PREVENTS COMPETITORS FROM ACQUIRING UNITED MACHINES
WITH A VIEW TO COPYING SUCH PARTS OF THE MACHINES WITH A VIEW TO
COPYING SUCH PARTS OF THE MACHINES AS ARE NOT PATENTED, AND WITH A VIEW
TO EXPERIMENTING WITH IMPROVEMENTS WITHOUT DISCLOSING THEM TO UNITED. 

(D) UNITED'S PRACTICE OF RENDERING REPAIR SERVICE ONLY ON ITS OWN
MACHINES AND WITHOUT SEPARATE CHARGE HAS BROUGHT ABOUT A SITUATION IN
WHICH THERE ARE ALMOST NO LARGE SCALE INDEPENDENT REPAIR COMPANIES. 
HENCE WHEN A TYPICAL SMALL SHOE MANUFACTURER IS CONSIDERING WHETHER TO
ACQUIRE A COMPLICATED SHOE MACHINE, HE MUST LOOK TO THE MANUFACTURER OF
THAT MACHINE FOR REPAIR SERVICE.  AND A COMPETITOR OF UNITED COULD NOT
READILY MARKET SUCH A COMPLICATED MACHINE UNLESS IN ADDITION TO
OFFERING THE MACHINE HE WAS PREPARED TO SUPPLY SERVICE.  AS THE
EXPERIENCE OF FOREIGN MANUFACTURERS INDICATES, THIS HAS PROVED TO BE A
SERIOUS STUMBLING BLOCK TO THOSE WHO HAVE SOUGHT TO COMPETE WITH
UNITED. 

(E) IF A SHOE MANUFACTURER IS DECIDING WHETHER TO INTRODUCE
COMPETITIVE MACHINES, (EITHER FOR NEW OPERATIONS OR AS REPLACEMENTS FOR
UNITED MACHINES ON WHICH THE LEASE HAS NOT EXPIRED), HE FACES THE
EFFECT OF THOSE DECISIONS UPON HIS CREDIT UNDER THE RIGHT OF DEDUCTION
FUND.  IF HE ALREADY HAS VIRTUALLY ALL UNITED MACHINES, THE FUND WILL
TAKE CARE OF SUBSTANTIALLY ALL HIS SO-CALLED DEFERRED CHARGES, AND MAY
COVER SOME OF HIS MINIMUM PAYMENTS.  THIS IS BECAUSE CREDIT TO THE FUND
EARNED BY A PARTICULAR MACHINE ENURES TO THE BENEFIT OF ALL LEASED
MACHINES IN THE FACTORY, AND THE MAXIMUM ADVANTAGE TO THE SHOE
MANUFACTURER IS TO HAVE A LARGE NUMBER OF UNITED MACHINES TO WHICH THE
CREDIT CAN BE APPLIED.  THIS ADVANTAGE TO THE SHOE MANUFACTURER OF
ACQUIRING AND KEEPING A FULL LINE OF UNITED MACHINES DETERS, THOUGH
PROBABLY ONLY MILDLY, THE OPPORTUNITIES OF A COMPETING SHOE
MANUFACTURER. 

MR. JUSTICE STEWART, DISSENTING. 

HANOVER SUED UNITED UNDER THE CLAYTON ACT FOR DAMAGES ALLEGEDLY
FLOWING FROM UNITED'S PRACTICE OF OFFERING ITS MACHINES FOR LEASE BUT
NOT FOR SALE.  HANOVER DID NOT ATTEMPT TO PROVE AS AN ORIGINAL MATTER
THAT THIS PRACTICE VIOLATED THE ANTITRUST LAWS.  INSTEAD, IT RELIED
EXCLUSIVELY UPON SEC. 5(A) OF THE CLAYTON ACT, 38 STAT. 731, AS
AMENDED, WHICH PROVIDES: 

     "A FINAL JUDGMENT OR DECREE HERETOFORE OR HEREAFTER RENDERED
IN

  ANY CIVIL OR CRIMINAL PROCEEDING BROUGHT BY OR ON BEHALF OF THE

  UNITED STATES UNDER THE ANTITRUST LAWS TO THE EFFECT THAT A

  DEFENDANT HAS VIOLATED SAID LAWS SHALL BE PRIMA FACIE EVIDENCE

  AGAINST SUCH DEFENDANT IN ANY ACTION OR PROCEEDING BROUGHT BY ANY

  OTHER PARTY AGAINST SUCH DEFENDANT UNDER SAID LAWS . . . AS TO

  ALL MATTERS RESPECTING WHICH SAID JUDGMENT OR DECREE WOULD BE AN

  ESTOPPEL AS BETWEEN THE PARTIES THERETO . . . ."  15 U.S.C.

  16(A). 

HANOVER RECOVERED AN AWARD OF TREBLE DAMAGES SOLELY UPON THE THEORY
THAT THE 1953 JUDGMENT AND DECREE IN UNITED STATES V. UNITED SHOE
MACHINERY CORP., 110 F.SUPP.  295, AFF'D PER CURIAM, 347 U.S. 521, HAD
ESTABLISHED THE UNLAWFULNESS OF UNITED'S PRACTICE OF MAKING ITS
MACHINES AVAILABLE BY LEASE ONLY.  SO IT FOLLOWS, AS THE COURT SAYS,
"(IF THE 1953 JUDGMENT IS NOT PRIMA FACIE EVIENCE OF THE ILLEGALITY OF
THE PRACTICE FROM WHICH HANOVER'S ASSERTED INJURY AROSE, THEN HANOVER,
HAVING OFFERED NO OTHER CONVINCING EVIDENCE OF ILLEGALITY, SHOULD NOT
HAVE RECOVERED AT ALL."  ANTE, AT 484. 

I THINK THAT THE 1953 JUDGMENT DID NOT HAVE THE BROAD EFFECT THE
COURT ATTRIBUTES TO IT TODAY.  ON THE CONTRARY, THAT JUDGMENT, IT SEEMS
EVIDENT TO ME, HELD UNLAWFUL ONLY PARTICULAR KINDS OF LEASES WITH
PARTICULAR PROVISIONS, NOT UNITED'S GENERAL PRACTICE OF LEASING ONLY. 
/1/ 

THE ONLY PRECEDENT CITED BY THE COURT FOR ITS EXPANSIVE APPLICATION
OF SEC. 5(A) IS EMICH MOTORS CORP. V. GENERAL MOTORS CORP., 340 U.S.
558.  THA, CASE DEALT WITH THE ESTOPPEL EFFECT OF A GENERAL JURY
VERDICT IN A CRIMINAL CASE.  WE DEAL HERE WITH A CIVIL CASE WHICH WAS
TRIED TO A FEDERAL JUDGE, WHO RENDERED A THOROUGHLY CONSIDERED OPINION
AND CAREFULLY PRECISE DECREE. 

ON SECTION OF THE DECREE, SEC. 2, BROADLY SET OUT WHAT THE COURT
FOUND UNITED'S ANTITRUST VIOLATIONS TO BE: 

     "DEFENDANT VIOLATED SEC. 2 OF THE SHERMAN ALT, 15 U.S.C.A. 2,

  BY MONOPOLIZING THE SHOE MACHINERY TRADE AND COMMERCE AMONG THE

  SEVERAL STATES.  DEFENDANT VIOLATED THE SAME SECTION OF THE LAW

  BY MONOPOLIZING THAT PART OF THE INTERSTATE TRADE AND COMMERCE IN

  TACKS, NAILS, EYELETS, GROMMETS, AND HOOKS, WHICH IS CONCERNED

  WITH SUPPLYING THE DEMAND FOR THOSE PRODUCTS BY SHOE FACTORIES

WITHIN THE UNITED STATES . . . ."  110 F.SUPP.,AT 352. 

ANOTHER SECTION OF THE DECREE, SEC. 4, CLEARLY SPECIFIED THE
UNLAWFUL MEANS BY WHILH THESE ANTITRUST VIOLATIONS HAD BEEN
ACCOMPLISHED, AND UNITED'S GENERAL LEASING PRACTICE WAS NOT ONE OF
THOSE MEANS: 

     "ALL LEASES MADE BY DEFENDANT WHICH INCLUDE EITHER A TEN-YEAR

  TERM, OR A FULL CAPACITY CLAUSE, OR DEFERRED PAYMENT CHARGES, AND

  ALL LEASES UNDER WHICH DURING THE LIFE OF THE LEASES DEFENDANT

  HAS RENDERED REPAIR AND OTHER SERVICE WITHOUT MAKING THEM SUBJECT

  TO SEPARATE, SEGREGATED CHARGES, ARE DECLARED TO HAVE BEEN MEANS

WHEREBY DEFENDANT MONOPOLIZED THE SHOE MACHINERY MARKET."  IBID. 

IN ADDITION TO THESE TWO SECTIONS SETTING FORTH THE VIOLATIONS
FOUND, THE DECREE CONTAINED SOME 20 REMEDIAL SECTIONS.  SECTION 3
ENJOINED THE VIOLATIONS FOUND IN SEC. 2.  SELTION 6 PROHIBITED THE
PARTICULAR TYPES OF LEASES FOUND TO BE UNALWFUL IN SEC. 4.  ANOTHER
OFFERED FOR SALE AS WELL AS FOR LEASE.  BUT IT IS A COMMONPLACE THAT
"RELIEF, TO BE EFFECTIVE, MUST GO BEYOND THE NARROW LIMITS OF THE
PROVEN VIOLATION," UNITED STATES V. GYPSUM CO., 340 U.S. 76, 90. 
UNITED STATES V. LOEW'S INC., 371 U.S. 38, 53; UNITED STATES V. BAUSCH
& LOMB CO., 321 U.S. 707, 724. 

I CAN FIND NOTHING IN JUDGE WYZANSKI'S WRITTEN OPINION IN THE 1953
CASE TO SUGGEST THAT HE FOUND UNITED'S LEASE-ONLY PRACTICE, AS SUCH, TO
BE A VIOLATION OF THE ANTITRUST LAWS OR ILLEGAL IN ANY WAY.  /2/  TO
THE CONTRARY, THAT OPINION REPEATEDLY EMPHASIZED THE ANTICOMPETITIVE
EFFECTS OF THE PARTICULAR TYPES OF LEASES HELD ILLEGAL, AND CAREFULLY
EXPLAINED THAT THE PURPOSE OF REQUIRING THAT CUSTOMERS IN THE FUTURE BE
GIVEN AN OPTION TO PURCHASE WAS TO CREATE AN EVENTUAL SECOND-HAND
MARKET IN UNITED'S MACHINES AND TO MAKE THE MACHINES AVAILABLE TO
UNITED'S COMPETITORS, SO THAT THEY MIGHT STUDY AND COPY THEM.  110
F.SUPP.,AT 349-350.  THE OPINION SPECIFICALLY STATED THAT THE REASON
FOR ORDERING UNITED TO OFFER ITS MACHINES FOR SALE WAS NOT TO WIDEN THE
CHOICES AVAILABLE TO CUSTOMERS.  /3/ 

THE COURT TODAY ADDS AS AN APPENDIX TO ITS OPINION-- LIKE A DEUS EX
MACHINA-- JUDGE WYZANSKI'S FINDINGS OF FACT.  BUT IT IS IRRELEVANT WITH
RESPECT TO SEC. 5(A) THAT THE 1953 FINDINGS DESCRIBE UNITED'S LEASE
ONLY PRACTICE, WHEN NEITHER THE DECREE NOR THE OPINION HELD THAT
PRAC,ICE TO BE UNLAWFUL. 

THE REAL KEY TO WHY THE COURT HAS GONE ASTRAY IN THIS CASE IS TO BE
FOUND, I THINK, IN THE CONCLUDING SENTENCE OF PART I OF THE COURT'S
OPINION.  FOR THERE THE COURT REVEALS THAT IT IS REALLY NOT TRYING TO
DETERMINE WHAT JUDGE WYZANSKI DECIDED IN 1953, BUT IS DETERMINING
INSTEAD HOW THIS COURT WOULD DECIDE THE ISSUES IF THE 1953 CASE WERE
BEFORE IT AS AN ORIGINAL MATTER TODAY.  /4/ 

IN MY VIEW THE 1953 UNITED SHOE DECISION DOES NOT ESTABLISH UNITED'S
LIABILITY TO HANOVER.  I DO NOT REACH, THEREFORE, THE OTHER QUESTIONS
DEALT WITH IN THE COURT'S OPINION. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

/1/  I AM NOT ALONE IN THIS VIEW.  SEE COLE V. HUGHES TOOL CO., 215
F.2D 924, 932-933; LAITRAM CORP. V. KING CRAB, INC., 244 F.SUPP.  9,
18.  SEE ALSO N. 2, INFRA. 

/2/  NEITHER, APPARENTLY, COULD JUDGE WYZANSKI.  AFTER THE TRIAL
COURT IN THIS ACTION FILED ITS OPINION HOLDING THAT THE 1953 DECREE HAD
CONDEMNED UNITED'S LEASE-ONLY PRACTICE, UNITED APPLIED TO JUDGE
WYZANSKI FOR A CONSTRUCTION OF HIS DECREE.  WHILE DENYING THE
APPLICATION UPON GROUNDS OF COMITY, JUDGE WYZANSKI INDICATED A
WILLINGNESS TO CONSTRUE HIS DECREE IF OFFICIALLY REQUESTED BY THE TRIAL
JUDGE IN THE PRESENT CASE, JUDGE SHERIDAN.  DURING THE COURSE OF THE
HEARING BEFORE JUDGE WYZANSKI, HE MADL HIS OWN VIEWS CLEAR TO
GOVERNMENT COUNSEL: 

"NOW THAT YOU ARE HERE, ARE YOU NOT AWARE FROM BEING HERE ON
PREVIOUS OCCASIONS THAT THE GOVERNMENT NEVER CONTENDED, AND I NEVER
RULED, AS JUDGE SHERIDAN SUPPOSES THE MATTER WAS DECIDED?" 

/3/  110 F.SUPP.,AT 349-350.  THE LANGUAGE QUOTED BY THE COURT,
ANTE, AT 486, N. 3, IS NOT A STATEMENT OF WHY THE DISTRICT COURT IN
1953 ORDERED UNITED TO OFFER ITS MACHINES FOR SALE, BUT RATHER PART OF
THE COURT'S ANSWER TO UNITED'S ARGUMENT THAT IT WOULD BE UNFAIR TO MAKE
UNITED SELL WHILE ITS COMPETITORS CONTINUED ONLY TO LEASE.  110
F.SUPP.,AT 350. 

/4/  "WHEN THE APPLICABLE STANDARD FOR DETERMINING MONOPOLIZATION
UNDER SEC. 2 IS APPLIED TO THESE FACTS, IT MUST BE CONCLUDED ,HAT THE
DISTRICT COURT AND THE COURT OF APPEALS DID NOT ERR IN HOLDING THAT
UNITED'S PRACTICE OF LEASING AND REFUSING TO SELL ITS MAJOR MACHINES
WAS DETERMINED TO BE ILLEGAL MONOPOLIZATION IN THE GOVERNMENT'S CASE." 
(EMPHASIS ADDDED.) 

JAMES V. HAYES ARGUED THE CAUSE FOR PETITIONER IN NO. 335 AND
RESPONDENT IN NO. 463.  WITH HIM ON THE BRIEFS WERE BRECK P. MCALLISTER
AND ROBERT F. MORTEN. 

RALPH M. CARSON ARGUED THE CAUSE FOR RESPONDENT IN NO. 335 AND
PETITIONER IN NO. 463.  WITH HIM ON THE BRIEFS WERE ROBERT D. SALINGER,
PHILIP C. POTTER, JR., AND ROLAND W. DONNEM. 
..END :






POWELL V. TEXAS, 392 U.S. 514 


       POWELL V. TEXAS. 

        APPEAL FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY,

           TEXAS. 

        NO. 405.  ARGUED MARCH 7, 1968.-- DECIDED JUNE 17, 1968. 


APPELLANT WAS ARRESTED AND CHARGED WITH BEING FOUND IN A STATE OF
INTOXICATION IN A PUBLIC PLACE, IN VIOLATION OF ART. 477 OF THE TEXAS
PENAL CODE.  HE WAS TRIED IN THE CORPORATION COURT OF AUSTIN, AND FOUND
GUILTY.  HE APPEALED TO THE COUNTY COURT OF TRAVIS COUNTY, AND AFTER A
TRIAL DE NOVO, HE WAS AGAIN FOUND GUILTY.  THAT COURT MADE THE
FOLLOWING "FINDINGS OF FACT":  (1) CHRONIC ALCOHOLISM IS A DISEASE
WHICH DESTROYS THE AFFLICTED PERSON'S WILL POWER TO RESIST THE
CONSTANT, EXCESSIVE USE OF ALCOHOL, (2) A CHRONIC ALCOHOLIC DOES NOT
APPEAR IN PUBLIC BY HIS OWN VOLITION BUT UNDER A COMPULSION SYMPTOMATIC
OF THE DISEASE OF CHRONIC ALCOHOLISM, AND (3) APPELLANT IS A CHRONIC
ALCOHOLIC WHO IS AFFLICTED BY THE DISEASE OF CHRONIC ALCOHOLISM; BUT
RULED AS A MATTER OF LAW THAT CHRONIC ALCOHOLISM WAS NOT A DEFENSE TO
THE CHARGE.  THE PRINCIPAL TESTIMONY WAS THAT OF A PSYCHIATRIST, WHO
TESTIFIED THAT APPELLANT, A MAN WITH A LONG HISTORY OF ARRESTS FOR
DRUNKENNESS, WAS A "CHRONIC ALCOHOLIC" AND WAS SUBJECT TO A
"COMPULSION" WHICH WAS "NOT COMPLETELY OVERPOWERING," BUT WHICH WAS "AN
EXCEEDINGLY STRONG INFLUENCE."  HELD:  THE JUDGMENT IS AFFIRMED.  PP.
517-554. 

MR. JUSTICE MARSHALL, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE
BLACK, AND MR. JUSTICE HARLAN, CONCLUDED THAT: 

1.  THE LOWER COURT'S "FINDINGS OF FACT" WERE NOT SUCH IN ANY
RECOGNIZABLE, TRADITIONAL SENSE, BUT WERE MERELY PREMISES OF A
SYLLOGISM DESIGNED TO BRING THIS CASE WITHIN THE SCOPE OF ROBINSON V.
CALIFORNIA, 370 U.S. 660 (1962).  P. 521. 

2.  THE RECORD HERE IS UTTERLY INADEQUATE TO PERMIT THE INFORMED
ADJUDICATION NEEDED TO SUPPORT AN IMPORTANT AND WIDE-RANGING NEW
CONSTITUTIONAL PRINCIPLE.  PP. 521-522. 

3.  THERE IS NO AGREEMENT AMONG MEDICAL EXPERTS AS TO WHAT IT MEANS
TO SAY THAT "ALCOHOLISM" IS A DISEASE," OR UPON THE "MANIFESTATIONS OF
ALCOHOLISM," OR ON THE NATURE OF A "COMPULSION."  PP. 522-526. 

4.  FACED WITH THE REALITY THAT THERE IS NO KNOWN GENERALLY
EFFECTIVE METHOD OF TREATMENT OR ADEQUATE FACILITIES OR MANPOWER FOR A
FULL-SCALE ATTACK ON THE ENORMOUS PROBLEM OF ALCOHOLICS, IT CANNOT BE
ASSERTED THAT THE USE OF THE CRIMINAL PROCESS TO DEAL WITH THE PUBLIC
ASPECTS OF PROBLEM DRINKING CAN NEVER BE DEFENDED AS RATIONAL.  PP. 526
530. 

5.  APPELLANT'S CONVICTION ON THE RECORD IN THIS CASE DOES NOT VIOLATE
THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF THE EIGHTH AMENDMENT.  PP.
531-537. 

(A) APPELLANT WAS CONVICTED, NOT FOR BEING A CHRONIC ALCOHOLIC, BUT
FOR BEING IN PUBLIC WHILE DRUNK ON A PARTICULAR OCCASION, AND THUS, AS
DISTINGUISHED FROM ROBINSON V. CALIFORNIA, SUPRA, WAS NOT BEING
PUNISHED FOR A MERE STATUS.  P. 532. 

(B) IT CANNOT BE CONCLUDED, ON THIS RECORD AND THE CURRENT STATE OF
MEDICAL KNOWLEDGE, THAT APPELLANT SUFFERS FROM SUCH AN IRRESISTIBLE
COMPULSION TO DRINK AND TO GET DRUNK IN PUBLIC THAT HE CANNOT CONTROL
HIS PERFORMANCE OF THESE ACTS AND THUS CANNOT BE DETERRED FROM PUBLIC
INTOXICATION.  IN ANY EVENT, THIS COURT HAS NEVER ARTICULATED A GENERAL
CONSTITUTIONAL DOCTRINE OF MENS REA, AS THE DEVELOPMENT OF THE DOCTRINE
AND ITS ADJUSTMENT TO CHANGING CONDITIONS HAS BEEN THOUGHT TO BE THE
PROVINCE OF THE STATES.  PP. 535-536. 

MR. JUSTICE BLACK, JOINED BY MR. JUSTICE HARLAN, CONCLUDED: 

1.  PUBLIC DRUNKENNESS, WHICH HAS BEEN A CRIME THROUGHOUT OUR
HISTORY, IS AN OFFENSE IN EVERY STATE, AND THIS COURT CERTAINLY CANNOT
STRIKE DOWN A STATE'S CRIMINAL LAW BECAUSE OF THE HEAVY BURDEN OF
ENFORCING IT.  P. 538. 

2.  CRIMINAL PUNISHMENT PROVIDES SOME FORM OF TREATMENT, PROTECTS
ALCOHOLICS FROM CAUSING HARM OR BEING HARMED BY REMOVING THEM FROM THE
STREETS, AND SERVES SOME DETERRENT FUNCTIONS; AND STATES SHOULD NOT BE
BARRED FROM USING ,HE CRIMINAL PROCESS IN ATTEMPTING TO COPE WITH THE
PROBLEM.  PP. 538-540. 

3.  MEDICAL DECISIONS BASED ON CLINICAL PROBLEMS OF DIAGNOSIS AND
TREATMENT BEAR NO NECESSARY CORRESPONDENCE TO THE LEGAL DECISION
WHETHER THE OVERALL OBJECTIVES OF CRIMINAL LAW CAN BE FURTHERED BY
IMPOSING PUNISHMENT; AND STATES SHOULD NOT BE CONSTITUTIONALLY REQUIRED
TO INQUIRE AS TO WHAT PART OF A DEFENDANT'S PERSONALITY IS RESPONSIBLE
FOR HIS ACTIONS AND TO EXCUSE ANYONE WHOSE ACTION WAS THE RESULT OF A
"COMPULSION."  PP. 540-541. 

4.  CRIMES WHICH REQUIRE THE STATE TO PROVE THAT THE DEFENDANT
ACTUALLY COMMITTED SOME PROSCRIBED ACT DO NOT COME WITHIN THE SCOPE OF
ROBINSON V. CALIFORNIA, SUPRA, WHICH IS PROPERLY LIMITED TO PURE STATUS
CRIMES.  PP. 541-544. 

5.  APPELLANT'S ARGUMENT THAT IT IS CRUEL AND UNUSUAL TO PUNISH A
PERSON WHO IS NOT MORALLY BLAMEWORTHY GOES BEYOND THE EIGHTH
AMENDMENT'S LIMITS ON THE USE OF CRIMINAL SANCTIONS AND WOULD CREATE
CONFUSION AND UNCERTAINTY IN AREAS OF CRIMINAL LAW WHERE OUR
UNDERSTANDING IS NOT COMPLETE.  PP. 544-546. 

6.  APPELLANT'S PROPOSED CONSTITUTIONAL RULE IS NOT ONLY
REVOLUTIONARY BUT IT DEPARTS FROM THE PREMISE THAT EXPERIENCE IN MAKING
LOCAL LAWS BY LOCAL PEOPLE IS THE SAFEST GUIDE FOR OUR NATION TO
FOLLOW.  PP. 547-548. 

MR. JUSTICE WHITE CONCLUDED: 

WHILE ROBINSON V. CALIFORNIA, WOULD SUPPORT THE VIEW THAT A CHRONIC
ALCOHOLIC WITH AN IRRESISTIBLE URGE TO CONSUME ALCOHOL SHOULD NOT BE
PUNISHABLE FOR DRINKING OR BEING DRUNK, APPELLANT'S CONVICTION WAS FOR
THE DIFFERENT CRIME OF BEING DRUNK IN A PUBLIC PLACE; AND THOUGH
APPELLANT SHOWED THAT HE WAS TO SOME DEGREE COMPELLED TO DRINK AND THAT
HE WAS DRUNK AT THE TIME OF HIS ARREST, HE MADE NO SHOWING THAT HE WAS
UNABLE TO STAY OFF THE STREETS AT THAT TIME.  PP. 548-554.   RELOCATION
SERVICES CORP.

MR. JUSTICE MARSHALL ANNOUNCED THE JUDGMENT OF THE COURT AND
DELIVERED AN OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND
MR. JUSTICE HARLAN JOIN. 

IN LATE DECEMBER 1966, APPELLANT WAS ARRESTED AND CHARGED WITH BEING
FOUND IN A STATE OF INTOXICATION IN A PUBLIC PLACE, IN VIOLATION OF
TEXAS PENAL CODE, ART. 477 (1952), WHICH READS AS FOLLOWS: 

     "WHOEVER SHALL GET DRUNK OR BE FOUND IN A STATE OF
INTOXICATION

IN ANY PRIVATE HOUSE EXCEPT HIS OWN, SHALL BE FINED NOT EXCEEDING

  ONE HUNDRED DOLLARS." 

APPELLANT WAS TRIED IN THE CORPORATION COURT OF AUSTIN, TEXAS, FOUND
GUILTY, AND FINED $20.  HE APPEALED TO THE COUNTY COURT AT LAW NO. 1 OF
TRAVIS COUNTY, TEXAS, WHERE A TRIAL DE NOVO WAS HELD.  HIS COUNSEL
URGED THAT APPELLANT WAS "AFFLICTED WITH THE DISEASE OF CHRONIC
ALCOHOLISM," THAT "HIS APPEARANCE IN PUBLIC (WHILE DRUNK WAS) . . . NOT
OF HIS OWN VOLITION," AND THEREFORE THAT TO PUNISH HIM CRIMINALLY FOR
THAT CONDUCT WOULD BE CRUEL AND UNUSUAL, IN VIOLATION OF THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 

THE TRIAL JUDGE IN THE COUNTY COURT, SITTING WITHOUT A JURY, MADE
CERTAIN FINDINGS OF FACT, INFRA, AT 521, BUT RULED AS A MATTER OF LAW
THAT CHRONIC ALCOHOLISM WAS NOT A DEFENSE TO THE CHARGE.  HE FOUND
APPELLANT GUILTY, AND FINED HIM $50.  THERE BEING NO FURTHER RIGHT TO
APPEAL WITHIN THE TEXAS JUDICIAL SYSTEM, /1/  APPELLANT APPEALED TO
THIS COURT; WE NOTED PROBABLE JURISDICTION.  389 U.S. 810 (1967). 

I. 

THE PRINCIPAL TESTIMONY WAS THAT OF DR. DAVID WADE, A FELLOW OF THE
AMERICAN MEDICAL ASSOCIATION, DULY CERTIFICATED IN PSYCHIATRY.  HIS
TESTIMONY CONSUMED A TOTAL OF 17 PAGES IN THE TRIAL TRANSCRIPT.  FIVE
OF THOSE PAGES WERE TAKEN UP WITH A RECITATION OF DR. WADE'S
QUALIFICATIONS.  IN THE NEXT 12 PAGES DR. WADE WAS EXAMINED BY
APPELLANT'S COUNSEL, CROSS-EXAMINED BY THE STATE, AND REEXAMINED BY THE
DEFENSE, AND THOSE 12 PAGES CONTAIN VIRTUALLY ALL THE MATERIAL
DEVELOPED AT TRIAL WHICH IS RELEVANT TO THE CONSTITUTIONAL ISSUE WE
FACE HERE.  DR. WADE SKETCHED THE OUTLINES OF THE "DISEASE" CONCEPT OF
ALCOHOLISM; NOTED THAT THERE IS NO GENERALLY ACCEPTED DEFINITION OF
"ALCOHOLISM"; ALLUDED TO THE ONGOING DEBATE WITHIN THE MEDICAL
PROFESSION OVER WHETHER ALCOHOL IS ACTUALLY PHYSICALLY "ADDICTING" OR
MERELY PSYCHOLOGICALLY "HABITUATING"; AND CONCLUDED THAT IN EITHER CASE
A "CHRONIC ALCOHOLIC"  IS AN "INVOLUNTARY DRINKER," WHO IS "POWERLESS
NOT TO DRINK," AND WHO "LOSES HIS SELF-CONTROL OVER HIS DRINKING."  HE
TESTIFIED THAT HE HAD EXAMINED APPELLANT, AND THAT APPELLANT IS A
"CHRONIC ALCOHOLIC," WHO "BY THE TIME HE HAS REACHED (THE STATE OF
INTOXICATION) . . . IS NOT ABLE TO CONTROL HIS BEHAVIOR, AND (WHO) . .
. HAS REACHED THIS POINT BECAUSE HE HAS AN UNCONTROLLABLE COMPULSION TO
DRINK."  DR. WADE ALSO RESPONDED IN THE NEGATIVE TO THE QUESTION
WHETHER APPELLANT HAS "THE WILLPOWER TO RESIST THE CONSTANT EXCESSIVE
CONSUMPTION OF ALCOHOL."  HE ADDED THAT IN HIS OPINION JAILING
APPELLALNT WITHOUT MEDICAL ATTENTION WOULD OPERATE NEITHER TO
REHABILITATE HIM NOR TO LESSEN HIS DESIRE FOR ALCOHOL. 

ON CROSS-EXAMINATION, DR. WADE ADMITTED THAT WHEN APPELLANT WAS
SOBER HE KNEW THE DIFFERENCE BETWELN RIGHT AND WRONG, AND HE RESPONDED
AFFIRMATIVELY TO THE QUESTION WHETHER APPELLANT'S ACT OF TAKING THE
FIRST DRINK IN ANY GIVEN INSTANCE WHEN HE WAS SOBER WAS A "VOLUNARY
EXERCISE OF HIS WILL."  QUALIFYING HIS ANSWER, DR. WADE STATED THAT
"THESE INDIVIDUALS HAVE A COMPULSION, AND THIS COMPULSION, WHILE NOT
COMPLETELY OVERPOWERING, IS A VERY STRONG INFLUENCE, AN EXCEEDINGLY
STRONG INFLUENCE, AND THIS COMPULSION COUPLED WITH THE FIRM BELIEF IN
THEIR MIND THAT THEY ARE GOING TO BE ABLE TO HANDLE IT FROM NOW ON
CAUSES THEIR JUDGMENT TO BE SOMEWHAT CLOUDED." 

APPELLANT TESTIFIED CONCERNING THE HISTORY OF HIS DRINKING PROBLEM. 
HE REVIEWED HIS MANY ARRESTS FOR DRUNKENNESS; TESTIFIED THAT HE WAS
UNABLE TO STOP DRINKING; STATED THAT WHEN HE WAS INTOXICATED HE HAD NO
CONTROL OVER HIS ACTIONS AND COULD NOT REMEMBER THEM LATER, BUT THAT HE
DID NOT BECOME VIOLENT; AND ADMITTED THAT HE DID NOT REMEMBER HIS
ARREST ON THE OCCASION FOR WHICH HE WAS BEING TRIED.  ON CROSS
EXAMINATION, APPELLANT ADMITTED THAT HE HAD HAD ONE DRINK ON THE
MORNING OF THE TRIAL AND THE CROSS-EXAMINATION, APPELLANT ADMITTED THAT
HE HAD HAD ONE DRINK ON THE MORNING OF THE TRIAL AND THE CROSS
EXAMINATION WENT AS FOLLOWS: 

     "Q.  YOU TOOK THAT ONE AT EIGHT O'CLOCK BECAUSE YOU WANTED TO
DRINK? 

     "A.  YES, SIR. 

     "Q.  AND YOU KNEW THAT IF YOU DRANK IT, YOU COULD KEEP ON
DRINKING AND GET DRUNK? 

     "A.  WELL, I WAS SUPPOSED TO BE HERE ON TRIAL, AND I DIDN'T
TAKE BUT THAT ONE DRINK. 

     "Q.  YOU KNEW YOU HAD TO BE HERE THIS AFTERNOON, BUT THIS

  MORNING YOU TOOK ONE DRINK AND THEN YOU KNEW THAT YOU COULDN'T

  AFFORD TO DRINK ANY MORE AND COME TO COURT; IS THAT RIGHT? 

     "A.  YES, SIR, THAT'S RIGHT. 

     "Q.  SO YOU EXERCISED YOUR WILL POWER AND KEPT FROM DRINKING

  ANYTHING TODAY EXCEPT THAT ONE DRINK? 

 "A.  YES, SIR, THAT'S RIGHT. 

     "Q.  BECAUSE YOU KNEW WHAT YOU WOULD DO IF YOU KEPT DRINKING,

  THAT YOU WOULD FINALLY PASS OUT OR BE PICKED UP? 

     "A.  YES, SIR. 

     "Q.  AND YOU DIDN'T WANT THAT TO HAPPEN TO YOU TODAY? 

     "A.  NO, SIR. 

     "Q.  NOT TODAY? 

"A.  NO, SIR. 

     "Q.  SO YOU ONLY HAD ONE DRINK TODAY? 

     "Q.  YES, SIR."  ON REDIRECT EXAMINATION, APPELLANT'S LAWYER
ELICITED THE FOLLOWING: 

     "Q.  LEROY, ISN'T THE REAL REASON WHY YOU JUST HAD ONE DRINK

  TODAY BECAUSE YOU JUST HAD ENOUGH MONEY TO BUY ONE DRINK? 

     "A.  WELL, THAT WAS JUST GIVE TO ME. 

     "Q.  IN OTHER WORDS, YOU DIDN'T HAVE ANY MONEY WITH WHICH YOU

  COULD BUY ANY DRINKS YOURSELF? 

     "Q.  NO, SIR, THAT WAS GIVE TO ME. 

     "Q.  AND THAT'S REALLY WHAT CONTROLLED THE AMOUNT YOU DRANK
THIS MORING, ISN'T IT? 

     "A.  YES, SIR. 

"Q.  LEORY, WHEN YOU START DRINKING, DO YOU HAVE ANY CONTROL

  OVER HOW MANY DRINKS YOU CAN TAKE? 

     "A.  NO, SIR." 

EVIDENCE IN THE CASE THEN CLOSED.  THE STATE MADE NO EFFORT TO
OBTAIN EXPERT PSYCHIATRIC TESTIMONY OF ITS OWN, OR EVEN TO EXPLORE WITH
APPELLANT'S WITNESS THE QUESTION OF APPELLANT'S POWER TO CONTROL THE
FREQUENCY, TIMING, AND LOCATION OF HIS DRINKING BOUTS, OR THE
SUBSTANTIAL DISAGREEMENT WITHIN THE MEDICAL PROFESSION CONCERNING THE
NATURE OF THE DISEASE, THE EFFICACY OF TREATMENT AND THE PREREQUISITES
FOR EFFECTIVE TREATMENT.  IT DID NOTHING TO EXAMINE OR ILLUMINATE WHAT
DR. WADE MIGHT HAVE MEANT BY HIS REFERENCE TO A "COMPULSION" WHICH WAS
"NOT COMPLETELY OVERPOWERING," BUT WHICH WAS "AN EXCEEDINGLY STRONG
INFLUENCE," OR TO INQUIRE INTO THE QUESTION OF THE PROPER ROLE OF SUCH
A "COMPULSION" IN CONSTITUTIONAL ADJUDICATION.  INSTEAD, THE STATE
CONTENTED ITSELF WITH A BRIEF ARGUMENT THAT APPELLANT HAD NO DEFENSE TO
THE CHARGE BECAUSE HE "IS LEGALLY SANE AND KNOWS THE DIFFERENCE BETWEEN
RIGHT AND WRONG." 

FOLLOWING THIS ABBREVIATED EXPOSITION OF THE PROBLEM BEFORE IT, THE
TRIAL COURT INDICATED ITS INTENTION TO DISALLOW APPELLANT'S CLAIMED
DEFENSE OF "CHRONIC ALCOHOLISM."  THEREUPON DEFENSE COUNSEL SUBMITTED,
AND THE TRIAL COURT ENTERED, THE FOLLOWING "FINDINGS OF FACT": 

     "(1) THAT CHRONIC ALCOHOLISM IS A DISEASE WHICH DESTROYS THE

  AFFLICTED PERSON'S WILL POWER TO RESIST THE CONSTANT, EXCESSIVE

  CONSUMPTION OF ALCOHOL. 

"(2) THAT A CHRONIC ALCOHOLIC DOES NOT APPEAR IN PUBLIC BY HIS

  OWN VOLITION BUT UNDER A COMPULSION SYMPTOMATIC OF THE DISEASE OF

  CHRONIC ALCOHOLISM. 

     "(3) THAT LEROY POWELL, DEFENDANT HEREIN, IS A CHRONIC

  ALCOHOLIC WHO IS AFFLICTED WITH THE DISEASE OF CHRONIC

  ALCOHOLISM." 

WHATEVER ELSE MAY BE SAID OF THEM, THOSE ARE NOT "FINDINGS OF FACT"
IN ANY RECOGNIZABLE, TRADITIO4AL SENSE IN WHICH THAT TERM HAS BEEN USED
IN A COURT OF LAW; THEY ARE THE PREMISES OF A SYLLOGISM TRANSPARENTLY
DESIGNED TO BRING THIS CASE WITHIN THE SCOPE OF THIS COURT'S OPINION IN
ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962).  NONETHELESS, THE DISSENT
WOULD HAVE US ADOPT THESE "FINDINGS" WITHOUT CRITICAL EXAMINATION; IT
WOULD USE THEM AS THE BASIS FOR A CONSTITUTIONAL HOLDING THAT "A PERSON
MAY NOT BE PUNISHED IF THE CONDITION ESSENTIAL TO CONSTITUTE THE
DEFINED CRIME IS PART OF THE PATTERN OF HIS DISEASE AND IS OCCASIONED
BY A COMPULSION SYMPTOMATIC OF ,HE DISEASE."  POST, AT 569. 

THE DIFFICULTY WITH THAT POSITION, AS WE SHALL SHOW, IS THAT IT GOES
MUCH TOO FAR ON THE BASIS OF TOO LITTLE KNOWLEDGE.  IN THE FIRST PLACE,
THE RECORD IN THIS CASE IS UTTERLY INADEQUATE TO PERMIT THE SORT OF
INFORMED AND RESPONSIBLE ADJUDICATION WHICH ALONE CAN SUPPORT THE
ANNOUNCEMENT OF AN IMPORTANT AND WIDE-RANGING NEW CONSTITUTIONAL
PRINCIPLE.  WE KNOW VERY LITTLE ABOUT THE CIRCUMSTANCES SURROUNDING THE
DRINKING BOUT WHICH RESULTED IN THIS CONVICTION, OR ABOUT LEROY
POWELL'S DRINKING PROBLEM, OR INDEED ABOUT ALCOHOLISM ITSELF.  THE
TRIAL HARDLY REFLECTS THE SHARP LEGAL AND EVIDENTAIARY CLASH BETWEEN
FULLY PREPARED ADVERSARY LITIGANTS WHICH IS TRADITIONALLY EXPECTED IN
MAJOR CONSTITUTIONAL CASES.  THE STATE PUT ON ONLY ONE WITNESS, THE
ARRESTING OFFICER.  THE DEFENSE PUT ON THREE-- A POLICEMAN WHO
TESTIFIED TO APPELLANT'S LONG HISTORY OF ARRESTS FOR PUBLIC
DRUNKENNESS, THE PSYCHIATRIST, AND APPELLANT HIMSELF. 

FURTHERMORE, THE INESCAPABLE FACT IS THAT THERE IS NO AGREEMENT
AMONG MEMBERS OF THE MEDICAL PROFESSION ABOUT WHAT IT MEANS TO SAY THAT
"ALCOHOLISM" IS A "DISEASE."  ONE OF THE PRINCIPAL WORKS IN THIS FIELD
STATES THAT THE MAJOR DIFFICULTY IN ARTICULATING A "DISEASE CONCEPT OF
ALCOHOLISM" IS THAT "ALCOHOLISM HAS TOO MANY DEFINITIONS AND DISEASE
HAS PRACTICALLY NONE."  /2/  THIS SAME AUTHOR CONCLUDES THAT "A DISEASE
IS WHAT THE MEDICAL PROFESSION RECOGNIZES AS SUCH."  /3/  IN OTHER
WORDS, THERE IS WIDESPREAD AGREEMENT TODAY THAT "ALCOHOLISM" IS A
"DISEASE," FOR THE SIMPLE REASON THAT THE MEDICAL PROFESSION HAS
CONCLUDED THAT IT SHOULD ATTEMPT TO TREAT THOSE WHO HAVE DRINKING
PROBLEMS.  THERE THE AGREEMENT STOPS.  DEBATE RAGES WITHIN THE MEDICAL
PROFESSION AS TO WHETHER "ALCOHOLISM" IS A SEPARATE "DISEASE" IN ANY
MEANINGFUL BIOCHEMICAL, PHYSIOLOGICAL OR PSYCHOLOGICAL SENSE, OR
WHETHER IT REPRESENTS ONE PECULIAR MANIFESTATION IN SOME INDIVIDUALS OF
UNDERLYING PSYCHIATRIC DISORDERS.  /4/ 

NOR IS THERE ANY SUBSTANTIAL CONSENSUS AS TO THE "MANIFESTATIONS OF
ALCOHOLISM."  E. M. JELLINEK, ONE OF THE OUTSTANDING AUTHORITIES ON THE
SUBJECT, IDENTIFIES FIVE DIFFERENT TYPES OF ALCOHOLICS WHICH
PREDOMINATE IN THE UNITED STATES, AND THESE TYPES DISPLAY A BROAD RANGE
OF DIFFERENT AND OCCASIONALLY INCONSISTENT SYMPTOMS.  /5/  MOREOVER,
WHOLLY DISTINCT TYPES, RELATIVELY RARE IN THIS COUNTRY, PREDOMINATE IN
NATIONS WITH DIFFERENT CULTURAL ATTITUDES REGARDING THE CONSUMPTION OF
ALCOHOL.  /6/  EVEN IF WE LIMIT OUR CONSIDERATION TO THE RANGE OF
ALCOHOLIC SYMPTOMS MORE TYPICALLY FOUND IN THIS COUNTRY, THERE IS
SUBSTANTIAL DISAGREEMENT AS TO THE MANIFESTATIONS OF THE "DISEASE"
CALLED "ALCOHOLISM."  JELLINEK, FOR EXAMPLE, CONSIDERS THAT ONLY TWO OF
HIS FIVE ALCOHOLIC TYPES CAN TRULY BE SAID TO BE SUFFERING FROM
"ALCOHOLISM" AS A "DISEASE," BECAUSE ONLY THESE TWO TYPES ATTAIN WHAT
HE BELIEVES TO BE THE REQUISITE DEGREE OF PHYSIOLOGICAL DEPENDENCE ON
ALCOHOL.  /7/  HE APPLIES THE LABEL "GAMMA ALCOHOLISM" TO THAT SPECIES
OF ALCOHOLISM IN WHICH (1) ACQUIRED INCREASED TISSUE TOLERANCE TO
ALCOHOL, (2) ADAPTIVE CELL METABOLISM . . . , (3) WITHDRAWAL SYMPTOMS
AND 'CRAVING,' I.E., PHYSICAL DEPENDENCE, AND (4) LOSS OF CONTROL ARE
INVOLVED."  /8/  A "DELTA" ALCOHOLIC, ON THE OTHER HAND, "SHOWS THE
FIRST THREE CHARACTERISTICS OF GAMMA ALCOHOLISM AS WELL AS A LESS
MARKED FORM OF THE FOURTH CHARACTERISTIC-- THAT IS, INSTEAD OF LOSS OF
CONTROL THERE IS INABILITY TO ABSTAIN."  /9/  OTHER AUTHORITIES
APPROACH THE PROBLEMS OF CLASSIFICATION IN AN ENTIRELY DIFFERENT MANNER
AND, TAKING ACCOUNT OF THE LARGE ROLE WHICH PSYCHO-SOCIAL FACTORS SEEM
TO PLAY IN "PROBLEM DRINKING," DEFINE THE "DISEASE" IN TERMS OF THE
EARLIEST IDENTIFIABLE MANIFESTATIONS OF ANY SORT OF ABNORMALITY IN
DRINKING PATTERNS.  /10/ 

DR. WADE APPEARS TO HAVE TESTIFIED ABOUT APPELLANT'S "CHRONIC
ALCOHOLISM" IN TERMS SIMILAR TO JELLINEK'S "GAMMA" AND "DELTA" TYPES,
FOR THESE TYPES ARE LARGELY DEFINED, IN THEIR LATER STAGES, IN TERMS OF
A STRONG COMPULSION TO DRINK, PHYSIOLOGICAL DEPENDENCE AND AN INABILITY
TO ABSTAIN FROM DRINKING.  NO ATTEMPT WAS MADE IN THE COURT BELOW, OF
COURSE, TO DETERMINE WHETHER LEROY POWELL COULD IN FACT PROPERLY BE
DIAGNOSED AS A "GAMMA" OR "DELTA" ALCOHOLIC IN JELLINEK'S TERMS.  THE
FOCUS AT THE TRIAL, AND IN THE DISSENT HERE, HAS BEEN EXCLUSIVELY UPON
THE FACTORS OF LOSS OF CONTROL AND INABILITY TO ABSTAIN.  ASSUMING THAT
IT MAKES SENSE TO COMPARTMENTALIZE IN THIS MANNER THE DIAGNOIS OF SUCH
A FORMLESS "DISEASE," TREMENDOUS GAPS IN OUR KNOWLEDGE REMAIN, WHICH
THE RECORD IN THIS CASE DOES NOTHING TO FILL. 

THE TRIAL COURT'S "FINDING" THAT POWELL "IS AFFLICTED WITH THE
DISEASE OF CHRONIC ALCOHOLISM," WHICH "DESTROYS THE AFFLICTED PERSON'S
WILL POWER TO RESIST THE CONSTANT, EXCESSIVE CONSUMPTION OF ALCOHOL"
COVERS A MULTITUDE OF SINS.  DR. WADE'S TESTIMONY THAT APPELLANT
SUFFERED FROM A COMPULSION WHICH WAS AN "EXCEEDINGLY STRONG INFLUENCE,"
BUT WHICH WAS "NOT COMPLETELY OVERPOWERING" IS AT LEAST MORE CAREFULLY
STATED, IF NO LESS MYSTIFYING.  JELLINEK INSISTS THAT CONCEPTUAL
CLARITY CAN ONLY BE ACHIEVED BY DISTINGUISHING CAREFULLY BETWEEN "LOSS
OF CONTROL" ONCE AN INDIVIDUAL HAS COMMENCED TO DRINK AND "INABILITY TO
ABSTAIN" FROM DRINKING IN THE FIRST PLACE.  /11/  PRESUMABLY A PERSON
WOULD HAVE TO DISPLAY BOTH CHARACTERISTICS IN ORDER TO MAKE OUT A
CONSTITUTIONAL DEFENSE, SHOULD ONE BE RECOGNIZED.  YET THE "FINDINGS"
OF THE TRIAL COURT UTTERLY FAIL TO MAKE THIS CRUCIAL DISTINCTION, AND
THERE IS SERIOUS QUESTION WHETHER THE RECORD CAN BE READ TO SUPPORT A
FINDING OF EITHER LOSS OF CONTROL OR INABILITY TO ABSTAIN.     DR. WADE
DID TESTIFY THAT ONCE APPELLANT BEGAN DRINKING HE APPEARED TO HAVE NO
CONTROL OVER THE AMOUNT OF ALCOHOL HE FINALLY INGESTED.  APPELLANT'S
OWN TESTIMONY CONCERNING HIS DRINKING ON THE DAY OF THE TRIAL WOULD
CERTAINLY APPEAR, HOWEVER, TO CAST DOUBT UPON THE CONCLUSION THAT HE
WAS WITHOUT CONTROL OVER HIS CONSUMPTION OF ALCOHOL WHEN HE HAD
SUFFICIENTLY IMPORTANT REASONS TO EXERCISE SUCH CONTROL.  HOWEVER THAT
MAY BE, THERE ARE MORE SERIOUS FACTUAL AND CONCEPTUAL DIFFICULTIES WITH
READING THIS RECORD TO SHOW THAT APPELLANT WAS UNABLE TO ABSTAIN FROM
DRINKING.  DR. WADE TESTIFIED THAT WHEN APPELLANT WAS SOBER, THE ACT OF
TAKING THE FIRST DRINK WAS A "VOLUNTARY EXERCISE OF HIS WILL," BUT THAT
THIS EXERCISE OF WILL WAS UNDERTAKEN UNDER THE "EXCEEDINGLY STRONG
INFLUENCE" OF A "COMPULSION" WHICH WAS "NOT COMPLETELY OVERPOWERING." 
SUCH CONCEPTS, WHEN JUXTAPOSED IN THIS FASHION, HAVE LITTLE MEANING. 

MOREOVER, JELLINEK ASSERTS THAT IT CANNOT ACCURATELY BE SAID THAT A
PERSON IS TRULY UNABLE TO ABSTAIN FROM DRINKING UNLESS HE IS SUFFERING
THE PHYSICAL SYMPTOMS OF WITHDRAWAL.  /12/  THERE IS NO TESTIMONY IN
THIS RECORD THAT LEROY POWELL UNDERWENT WITHDRAWAL SYMPTOMS EITHER
BEFORE HE BEGAN THE DRINKING SPREE WHICH RESULTED IN THE CONVICTION
UNDER REVIEW HERE, OR AT ANY OTHER TIME.  IN ATTEMPTING TO DEAL WITH
THE ALCOHOLIC'S DESIRE FOR DRINK IN THE ABSENCE OF WITHDRAWAL SYMPTOMS,
JELLINEK IS REDUCED TO UNINTELLIGIBLE DISTINCTIONS BETWEEN A
"COMPULSION" (A "PSYCHOPATHOLOGICAL PHENOMENON" WHICH CAN APPARENTLY
SERVE IN SOME INSTANCES AS THE FUNCTIONAL EQUIVALENT OF A "CRAVING" OR
SYMTOM OF WITHDRAWAL) AND AN "IMPULSE" (SOMETHING WHICH DIFFERS FROM A
LOSS OF CONTROL, A CRAVING OR A COMPULSION, AND TO WHICH JELLINEK
ATTRIBUTES THE START OF A NEW DRINKING BOUT FOR A "GAMMA" ALCOHOLIC). 
/13/  OTHER SCHOLARS ARE EQUALLY UNHELPFUL IN ARTICULATING THE NATURE
OF A "COMPULSION."  /14/ 

IT IS ONE THING TO SAY THAT IF A MAN IS DEPRIVED OF ALCOHOL HIS
HANDS WILL BEGIN TO SHAKE, HE WILL SUFFER AGONIZING PAINS AND
ULTIMATELY HE WILL HAVE HALLUCINATIONS; IT IS QUITE ANOTHER TO SAY THAT
A MAN HAS A "COMPULSION" TO TAKE A DRINK, BUT THAT HE ALSO RETAINS A
CERTAIN AMOUNT OF "FREE WILL" WITH WHICH TO RESIST.  IT IS SIMPLY
IMPOSSIBLE, IN THE PRESENT STATE OF OUR KNOWLEDGE, TO ASCRIBE A USEFUL
MEANING TO THE LATTER STATEMENT.  THIS DEFINITIONAL CONFUSION REFLECTS,
OF COURSE, NOT MERELY THE UNDEVELOPED STATE OF THE PSYCHIATRIC ART BUT
ALSO THE CONCEPTUAL DIFFICULTIES INEVITABLY ATTENDANT UPON THE
IMPORTATION OF SCIENTIFIC AND MEDICAL MODELS INTO A LEGAL SYSTEM
GENERALLY PREDICATED UPON A DIFFERENT SET OF ASSUMPTIONS.  /15/

        II. 

DESPITE THE COMPARATIVELY PRIMITIVE STATE OF OUR KNOWLEDGE ON THE
SUBJECT, IT CANNOT BE DENIED THAT THE DESTRUCTIVE USE OF ALCOHOLIC
BEVERAGES IS ONE OF OUR PRINCIPAL SOCIAL AND PUBLIC HEALTH PROBLEMS. 
/16/  THE LOWEST CURRENT INFORMED ESTIMATE PLACES THE NUMBER OF
"ALCOHOLICS"IN AMERICA (DEFINITIONAL PROBLEMS ASIDE) AT 4,000,000, /17/
AND MOST AUTHORITIES ARE INCLINED TO PUT THE FIGURE CONSIDERABLY
HIGHER.  /18/  THE PROBLEM IS COMPOUNDED BY THE FACT THAT A VERY LARGE
PERCENTAGE OF THE ALCOHOLICS IN THIS COUNTRY ARE "INVISIBLE"-- THEY
POSSESS THE MEANS TO KEEP THEIR DRINKING PROBLEMS SECRET, AND THE
TRADITIONALLY UNCHARITABLE ATTITUDE OF OUR SOCIETY TOWARD ALCOHOLICS
CAUSES MANY OF THEM TO REFRAIN FROM SEEKING TREATMENT FROM ANY SOURCE. 
/19/  NOR CAN IT BE GAINSAID THAT THE LEGISLATIVE RESPONSE TO THIS
ENORMOUS PROBLEM HAS IN GENERAL BEEN INADEQUATE. 

THERE IS AS YET NO KNOWN GENERALLY EFFECTIVE METHOD FOR TREATING THE
VAST NUMBER OF ALCOHOLICS IN OUR SOCIETY.  SOME INDIVIDUAL ALCOHOLICS
HAVE RESPONDED TO PARTICULAR FORMS OF THERAPY WITH REMISSIONS OF THEIR
SYMPTOMATIC DEPENDENCE UPON THE DRUG.  BUT JUST AS THERE IS NO
AGREEMENT AMONG DOCTORS AND SOCIAL WORKERS WITH RESPECT TO THE CAUSES
OF ALCOHOLISM, THERE IS NO CONSENSUS AS TO WHY PARTICULAR TREATMENTS
HAVE BEEN EFFECTIVE IN PARTICULAR CASES AND THERE IS NO GENERALLY
AGREED-UPON APPROACH TO THE PROBLEM OF TREATMENT ON A LARGE SCALE. 
/20/  MOST PSYCHIATRISTS ARE APPARENTLY OF THE OPINION THAT ALCOHOLISM
IS FAR MORE DIFFICULT TO TREAT THAN OTHER FORMS OF BEHAVIORAL
DISORDERS, AND SOME BELIEVE IT IS IMPOSSIBLE TO CURE BY MEANS OF
PSYCHOTHERAPY; INDEED, THE MEDICAL PROFESSION AS A WHOLE, AND
PSYCHIATRISTS IN PARTICULAR, HAVE BEEN SEVERELY CRITICISED FOR THE
PREVAILING RELULTANCE TO UNDERTAKE THE TREATMENT OF DRINKING PROBLEMS. 
/21/  THUS IT IS ENTIRELY POSSIBLE THAT, EVEN WERE THE MANPOWER AND
FACILITIES AVAILABLE FOR A FULL-SCALE ATTACK UPON CHRONIC ALCOHOLISM,
WE WOULD FIND OURSELVES UNABLE TO HELP THE VAST BULK OF OUR "VISIBLE"--
LET ALONE OUR "INVISIBLE"-- ALCOHOLIC POPULATION. 

HOWEVER, FACILITIES FOR THE ATTEMPTED TREATMENT OF INDIGENT
ALCOHOLICS ARE WOEFULLY LACKING THROUGHOUT THE COUNTRY.  /22/  IT WOULD
BE TRAGIC TO RETURN LARGE NUMBERS OF HELPLESS, SOMETIMES DANGEROUS AND
FREQUENTLY UNSANITARY OPPORTUNITY TO SOBER UP ADEQUATELY WHICH A BRIEF
JAIL TERM PROVIDES.  PRESUMABLY NO STATE OR CITY WILL TOLERATE SUCH A
STATE OF AFFAIRS.  YET THE MEDICAL PROFESSION CANNOT, AND DOES NOT,
TELL US WITH ANY ASSURANCE THAT, EVEN IF THE BUILDINGS, EQUIPMENT AND
TRAINED PERSONNEL WERE MADE AVAILABLE, IT COULD PROVIDE ANYTHING MORE
THAN SLIGHTLY HIGHER-CLASS JAILS FOR OUR INDIGENT HABITUAL INEBRIATES. 
THUS WE RUN THE GRAVE RISK THAT NOTHING WILL BE ACCOMPLISHED BEYOND THE
HANGING OF A NEW SIGN-- READING "HOSPITAL"-- OVER ONE WING OF THE
JAILHOUSE.  /23/ 

ONE VIRTUE OF THE CRIMINAL PROCESS IS, AT LEAST, THAT THE DURATION
OF PENAL INCARCERATION TYPICALLY HAS SOME OUTSIDE STATUTORY LIMIT; THIS
IS UNIVERSALLY TRUE IN THE CASE OF PETTY OFFENSES, SUCH AS PUBLIC
DRUNKENNESS, WHERE JAIL TERMS ARE QUITE SHORT ON THE WHOLE. 
"THERAPEUTIC CIVIL COMMITMENT" LACKS THIS FEATURE; ONE IS TYPICALLY
COMMITTED UNTIL ONE IS "CURED."  THUS, TO DO OTHERWISE THAN AFFIRM
MIGHT SUBJECT INDIGENT ALCOHOLICS TO THE RISK THAT THEY MAY BE LOCKED
UP FOR AN INDEFINITE PERIOD OF TIME UNDER THE SAME CONDITIONS AS
BEFORE, WITH NO MORE HOPE THAN BEFORE OF RECEIVING EFFECTIVE TREATMENT
AND NO PROSPECT OF PERIODIC "FREEDOM."  /24/ 

FACED WITH THIS UNPLEASANT REALITY, WE ARE UNABLE TO ASSERT THAT THE
USE OF THE CRIMINAL PROCESS AS A MEANS OF DEALING WITH THE PUBLIC
ASPECTS OF PROBLEM DRINKING CAN NEVER BE DEFENDED AS RATIONAL.  THE
PICTURE OF THE PENNILESS DRUNK PROPELLED AIMLESSLY AND ENDLESSLY
THROUGH THE LAW'S "REVOLVING DOOR" OF ARREST, INCARCERATION, RELEASE
AND RE-ARREST IS NOT A PRETTY ONE.  BUT BEFORE WE CONDEMN THE PRESENT
PRACTICE ACROSS-THE-BOARD, PERHAPS WE OUGHT TO BE ABLE TO POINT TO SOME
CLEAR PROMISE OF A BETTER WORLD FOR THESE UNFORTUNATE PEOPLE. 
UNFORTUNATELY, NO SUCH PROMISE HAS YET BEEN FORTHCOMING.  IF, IN
ADDITION TO THE ABSENCE OF A COHERENT APPROACH TO THE PROBLEM OF
TREATMENT, WE CONSIDER THE ALMOST COMPLETE ABSENCE OF FACILITIES AND
MANPOWER FOR THE IMPLEMENTATION OF A REHABILITATION PROGRAM, IT IS
DIFFICULT TO SAY IN THE PRESENT CONTEXT THAT THE CRIMINAL PROCESS IS
UTTERLY LACKING IN SOCIAL VALUE.  THIS COURT HAS NEVER HELD THAT
ANYTHING IN THE CONSTITUTION REQUIRES THAT PENAL SANCTIONS BE DESIGNED
SOLELY TO ACHIEVE THERAPEUTIC OR REHABILITATIVE EFFECTS, AND IT CAN
HARDLY BE SAID WITH ASSURANCE THAT INCARCERATION SERVES SUCH PURPOSES
ANY BETTER FOR THE GENERAL RUN OF CRIMINALS THAN IT DOES FOR PUBLIC
DRUNKS. 

IGNORANCE LIKEWISE IMPEDES OUR ASSESSMENT OF THE DETERRENT EFFECT OF
CRIMINAL SANCTIONS FOR PUBLIC DRUNKENNESS.  THE FACT THAT A HIGH
PERCENTAGE OF AMERICAN ALCOHOLICS CONCEAL THEIR DRINKING PROBLEMS, NOT
MERELY BY AVOIDING PUBLIC DISPLAYS OF INTOXICATION BUT ALSO BY SHUNNING
ALL FORMS OF TREATMENT, IS INDICATIVE THAT SOME POWERFUL DETERRENT
OPERATES TO INHIBIT THE PUBLIC REVELATION OF THE EXISTENCE OF
ALCOHOLISM.  QUITE PROBABLY THIS DETERRENT EFFECT CAN BE LARGELY
ATTRIBUTED TO THE HARSH MORAL ATTITUDE WHICH OUR SOCIETY HAS
TRADITIONALLY TAKEN TOWARD INTOXICATION AND THE SHAME WHICH WE HAVE
ASSOCIATED WITH ALCOHOLISM.  CRIMINAL CONVICTION REPRESENTS THE
DEGRADING PUBLIC REVELATION OF WHAT ANGLO-AMERICAN SOCIETY HAS LONG
CONDEMNED AS A MORAL DEFECT, AND THE EXISTENCE OF CRIMINAL SANCTIONS
MAY SERVE TO REINFORCE THIS CULTURAL TABOO, JUST AS WE PRESUME IT
SERVES TO REINFORCE OTHER, STRONGER FEELINGS AGAINST MURDER, RAPE,
THEFT, AND OTHER FORMS OF ANTISOCIAL CONDUCT. 

OBVIOUSLY, CHRONIC ALCOHOLICS HAVE NOT BEEN DETERRED FROM DRINKING
TO EXCESS BY THE EXISTENCE OF CRIMINAL SANCTIONS AGAINST PUBLIC
DRUNKENNESS.  BUT ALL THOSE WHO VIOLATE PENAL LAWS OF ANY KIND ARE BY
DEFINITION UNDETERRED.  THE LONG-STANDING AND STILL RAGING DEBATE OVER
THE VALIDITY OF THE DETERRENCE JUSTIFICATION FOR PENAL SANCTIONS HAS
NOT REACHED ANY SUFFICIENTLY CLEAR CONCLUSIONS TO PERMIT IT TO BE SAID
THAT SUCH SANCTIONS ARE INEFFECTIVE IN ANY PARTICULAR CONTEXT OR FOR
ANY PARTICULAR GROUP OF PEOPLE WHO ARE ABLE TO APPRECIATE THE
CONSEQUENCES OF THEIR ACTS.  CERTAINLY NO EFFORT WAS MADE AT THE TRIAL
OF THIS CASE, BEYOND A MONOSYLLABIC ANSWER TO A PERFUNCTORY ONE-LINE
QUESTION, TO DETERMINE THE EFFECTIVENESS OF PENAL SANCTIONS IN
DETERRING LEROY POWELL IN PARTICULAR OR CHRONIC ALCOHOLICS IN GENERAL
FROM DRINKING AT ALL OR FROM GETTING DRUNK IN PARTICULAR PLACES OR AT
PARTICULAR TIMES. 

         III. 

APPELLANT CLAIMS THAT HIS CONVICTION ON THE FACTS OF THIS CASE WOULD
VIOLATE THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF THE EIGHTH AMENDMENT
AS APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT.  THE PRIMARY
PURPOSE OF THAT CLAUSE HAS ALWAYS BEEN CONSIDERED, AND PROPERLY SO, TO
BE DIRECTED AT THE METHOD OR KIND OF PUNISHMENT IMPOSED FOR THE
VIOLATION OF CRIMINAL STATUTES; THE NATURE OF THE CONDUCT MADE CRIMINAL
IS ORDINARILY RELEVANT ONLY TO THE FITNESS OF THE PUNISHMENT IMPOSED. 
SEE, E.G., TROP V. DULLES, 356 U.S. 86 (1958); LOUISIANA EX REL.
FRANCIS V. RESWEBER, 329 U.S. 459 (1947); WEEMS V. UNITED STATES, 217
U.S. 349 (1910).  /25/ 

APPELLANT, HOWEVER, SEEKS TO COME WITHIN THE APPLICATION OF THE
CRUEL AND UNUSUAL PUNISHMENT CLAUSE ANNOUNCED IN ROBINSON V.
CALIFORNIA, 370 U.S. 660 (1962), WHICH INVOLVED A STATE STATUTE MAKING
IT A CRIME TO "BE ADDICTED TO THE USE OF NARCOTICS."  THIS COURT HELD
THERE THAT "A STATE LAW WHICH IMPRISONS A PERSON THUS AFFLICTED (WITH
NARCOTIC ADDICTION) AS A CRIMINAL, EVEN THOUGH HE HAS NEVER TOUCHED ANY
NARCOTIC DRUG WITHIN THE STATE OR BEEN GUILTY OF ANY IRREGULAR BEHAVIOR
THERE, INFLICTS A CRUEL AND UNUSUAL PUNISHMENT . . . ."  ID., AT 667. 

ON ITS FACE THE PRESENT CASE DOES NOT FALL WITHIN THAT HOLDING,
SINCE APPELLANT WAS CONVICTED, NOT FOR BEING A CHRONIC ALCOHOLIC, BUT
FOR BEING IN PUBLIC WHILE DRUNK ON A PARTICULAR OCCASION.  THE STATE OF
TEXAS THUS HAS NOT SOUGHT TO PUNISH A MERE STATUS, AS CALIFORNIA DID IN
ROBINSON; NOR HAS IT ATTEMPTED TO REGULATE APPELLANT'S BEHAVIOR IN THE
PRIVACY OF HIS OWN HOME.  RATHER, IT HAS IMPOSED UPON APPELLANT A
CRIMINAL SANCTION FOR PUBLIC BEHAVIOR WHICH MAY CREATE SUBSTANTIAL
HEALTH AND SAFETY HAZARDS, BOTH FOR APPELLANT AND FOR MEMBERS OF THE
GENERAL PUBLIC, AND WHICH OFFENDS THE MORAL AND ESTHETIC SENSIBILITIES
OF A LARGE SEGMENT OF THE COMMUNITY.  THIS SEEMS A FAR CRY FROM
CONVICTING ONE FOR BEING AN ADDICT, BEING A CHRONIC ALCOHOLIC, BEING
"MENTALLY ILL, OR A LEPER . . . ."  ID., AT 666. 

ROBINSON SO VIEWED BRINGS THIS COURT BUT A VERY SMALL WAY INTO THE
SUBSTANTIVE CRIMINAL LAW.  AND UNLESS ROBINSON IS SO VIEWED IT IS
DIFFICULT TO SEE ANY LIMITING PRINCIPLE THAT WOULD SERVE TO PREVENT
THIS COURT FROM BECOMING, UNDER THE AEGIS OF THE CRUEL AND UNUSUAL
PUNISHMENT CLAUSE, THE ULTIMATE ARBITER OF THE STANDARDS OF CRIMINAL
RESPONSIBILITY, IN DIVERSE AREAS OF THE CRIMINAL LAW, THROUGHOUT THE
COUNTRY. 

IT IS SUGGESTED IN DISSENT THAT ROBINSON STANDS FOR THE "SIMPLE" BUT
"SUBTLE" PRINCIPLE THAT "(CRIMINAL PENALTIES MAY NOT BE INFLICTED UPON
A PERSON FOR BEING IN A CONDITION HE IS POWERLESS TO CHANGE."  POST, AT
567.  IN THAT VIEW, APPELLANT'S "CONDITION" OF PUBLIC INTOXICATION WAS
"OCCASIONED BY A COMPULSION SYMTOMATIC OF THE DISEASE" OF CHRONIC
ALCOHOLISM, AND THUS, APPARENTLY, HIS BEHAVIOR LACKED THE CRITICAL
ELEMENT OF MENS REA.  WHATEVER MAY BE THE MERITS OF SUCH A DOCTRINE OF
CRIMINAL RESPONSIBILITY, IT SURELY CANNOT BE SAID TO FOLLOW FROM
ROBINSON.  THE ENTIRE THRUST OF ROBINSON'S INTERPRETATION OF THE CRUEL
AND UNUSUAL PUNISHMENT CLAUSE IS THAT CRIMINAL PENALTIES MAY BE
INFLICTED ONLY IF THE ACCUSED HAS COMMITTED SOME ACT, HAS ENGAGED IN
SOME BEHAVIOR, WHICH SOCIETY HAS AN INTEREST IN PREVENTING, OR PERHAPS
IN HISTORICAL COMMON LAW TERMS, HAS COMMITTED SOME ACTUS REUS.  IT THUS
DOES NOT DEAL WITH THE QUESTION OF WHETHER CERTAIN CONDUCT CANNOT
CONSTITUTIONALLY BE PUNISHED BECAUSE IT IS, IN SOME SENSE,
"INVOLUNTARY" OR "OCCASIONED BY A COMPULSION." 

LIKEWISE, AS THE DISSENT ACKNOWLEDGES, THERE IS A SUBSTANTIAL
DEFINITIONAL DISTINCTION BETWEEN A "STATUS," AS IN ROBINSON, AND A
"CONDITION," WHICH IS SAID TO BE INVOLVED IN THIS CASE.  WHATEVER MAY
BE THE MERITS OF AN ATTEMPT TO DISTINGUISH BETWEEN BEHAVIOR AND A
CONDITION, IT IS PERFECTLY CLEAR THAT THE CRUCIAL ELEMENT IN THIS CASE,
SO FAR AS THE DISSENT IS CONCERNED, IS WHETHER OR NOT APPELLANT CAN
LEGALLY BE HELD RESPONSIBLE FOR HIS APPEARANCE IN PUBLIC IN A STATE OF
INTOXICATION.  THE ONLY RELEVANCE OF ROBINSON TO THIS ISSUE IS THAT
BECAUSE THE COURT INTERPRETED THE STATUTE THERE INVOLVED AS MAKING A
"STATUS" CRIMINAL, IT WAS ABLE TO SUGGEST THAT THE STATUTE WOULD COVER
EVEN A SITUATION IN WHICH ADDICTION HAD BEEN ACQUIRED INVOLUNTARILY. 
370 U.S.,AT 667, N. 9.  THAT THIS FACTOR WAS NOT DETERMINATIVE IN THE
CASE IS SHOWN BY THE FACT THAT THERE WAS NO INDICATION OF HOW ROBINSON
HIMSELF HAD BECOME AN ADDICT.     ULTIMATELY, THEN THE MOST TROUBLING
ASPECTS OF THIS CASE, WERE ROBINSON TO BE EXTENDED TO MEET IT, WOULD BE
THE SCOPE AND CONTENT OF WHAT COULD ONLY BE A CONSTITUTIONAL DOCTRINE
OF CRIMINAL RESPONSIBILITY.  IN DISSENT IT IS URGED THAT THE DECISION
COULD BE LIMITED TO CONDUCT WHICH IS "A CHARACTERISTIC AND INVOLUNTARY
PART OF THE PATTERN OF THE DISEASE AS IT AFFLICTS" THE PARTICULAR
INDIVIDUAL, AND THAT "(IT NOT FORESEEABLE" THAT IT WOULD BE APPLIED "IN
THE CASE OF OFFENSES SUCH AS DRIVING A CAR WHILE INTOXICATED, ASSAULT,
THEFT, OR ROBBERY."  POST, AT 559, N. 2.  THAT IS LIMITATION BY FIAT. 
IN THE FIRST PLACE, NOTHING IN THE LOGIC OF THE DISSENT WOULD LIMIT ITS
APPLICATION TO CHRONIC ALCOHOLICS.  IF LEROY POWELL CANNOT BE CONVICTED
OF PUBLIC INTOXICATION, IT IS DIFFICULT TO SEE HOW A STATE CAN CONVICT
AN INDIVIDUAL FOR MURDER, IF THAT INDIVIDUAL, WHILE EXHIBITING NORMAL
BEHAVIOR IN ALL OTHER RESPECTS, SUFFERS FROM A "COMPULSION" TO KILL,
WHICH IS AN "EXCEEDINGLY STRONG INFLUENCE," BUT "NOT COMPELTELY
OVERPOWERING."  /26/  EVEN IF WE LIMIT OUR CONSIDERATION TO CHRONIC
ALCOHOLICS, IT WOULD SEEM IMPOSSIBLE TO CONFINE THE PRINCIPLE WITHIN
THE ARBITRARY BOUNDS WHICH THE DISSENT SEEMS TO ENVISION. 

IT IS NOT DIFFICULT TO IMAGINE A CASE INVOLVING PSYCHIATRIC
TESTIMONY TO THE EFFECT THAT AN INDIVIDUAL SUFFERS FROM SOME AGGRESSIVE
NEUROSIS WHICH HE IS ABLE TO CONTROL WHEN SOBER; THAT VERY LITTLE
ALCOHOL SUFFICES TO REMOVE THE INHIBITIONS WHICH NORMALLY CONTAIN THESE
AGGRESSIONS, WITH THE RESULT THAT THE INDIVIDUAL ENGAGES IN ASSAULTIVE
BEHAVIOR WITHOUT BECOMING ACTUALLY INTOXICATED; AND THAT THE INDIVIDUAL
SUFFERS FROM A VERY STRONG DESIRE TO DRINK, WHICH IS AN "EXCEEDINGLY
STRONG INFLUENCE" BUT "NOT COMPLETELY OVERPOWERING."  WITHOUT BEING
UNTRUE TO THE RATIONALE OF THIS CASE, SHOULD THE PRINCIPLES ADVANCED IN
DISSENT BE ACCEPTED HERE, THE COURT COULD NOT AVOID HOLDING SUCH AN
INDIVIDUAL CONSTITUTIONALLY UNACCOUNTABLE FOR HIS ASSAULTIVE BEHAVIOR. 

TRADITIONAL COMMON-LAW CONCEPTS OF PERSONAL ACCOUNTABILITY AND
ESSENTIAL CONSIDERATIONS OF FEDERALISM LEAD US TO DISAGREE WITH
APPELLANT.  WE ARE UNABLE TO CONCLUDE, ON THE STATE OF THIS RECORD OR
ON THE CURRENT STATE OF MEDICAL KNOWLEDGE, THAT CHRONIC ALCOHOLICS IN
GENERAL, AND LEROY POWELL IN PARTICULAR, SUFFER FROM SUCH AN
IRRESISTIBLE COMPULSION TO DRINK AND TO GET DRUNK IN PUBLIC THAT THEY
ARE UTTERLY UNABLE TO CONTROL THEIR PERFORMANCE OF EITHER OR BOTH OF
THESE ACTS AND THUS CANNOT BE DETERRED AT ALL FROM PUBLIC
INTOXICATION.  AND IN ANY EVENT THIS COURT HAS NEVER ARTICULATED A
GENERAL CONSTITUTIONAL DOCTRINE OF MENS REA.  /27/ 

WE CANNOT CAST ASIDE THE CENTURIES-LONG EVOLUTION OF THE COLLECTION
OF INTERLOCKING AND OVERLAPPING CONCEPTS WHICH THE COMMON LAW HAS
UTILIZED TO ASSESS THE MORAL ACCOUNTABILITY OF AN INDIVIDUAL FOR HIS
ANTISOCIAL DEEDS.  /28/  THE DOCTRINES OF ACTUS REUS, MENS REA,
INSANITY, MISTAKE, JUSTIFICATION, AND DURESS HAVE HISTORICALLY PROVIDED
THE TOOLS FOR A CONSTANTLY SHIFTING ADJUSTMENT OF THE TENSION BETWEEN
THE EVOLVING AIMS OF THE CRIMINAL LAW AND CHANGING RELIGIOUS, MORAL,
PHILOSOPHICAL, AND MEDICAL VIEWS OF THE NATURE OF MAN.  THIS PROCESS OF
ADJUSTMENT HAS ALWAYS BEEN THOUGHT TO BE THE PROVINCE OF THE STATES. 

NOTHING COULD BE LESS FRUITFUL THAN FOR THIS COURT TO BE IMPELLED
INTO DEFINING SOME SORT OF INSANITY TEST IN CONSTITUTIONAL TERMS.  YET,
THAT TASK WOULD SEEM TO FOLLOW INEXORABLY FROM AN EXTENSION OF ROBINSON
TO THIS CASE.  IF A PERSON IN THE "CONDITION" OF BEING A CHRONIC
ALCOHOLIC CANNOT BE CRIMINALLY PUNISHED AS A CONSTITUTIONAL MATTER FOR
BEING DRUNK IN PUBLIC, IT WOULD SEEM TO FOLLOW THAT A PERSON WHO
CONTENDS THAT, IN TERMS OF ONE TEST, "HIS UNLAWFUL ACT WAS THE PRODUCT
OF MENTAL DISEASE OR MENTAL DEFECT," DURHAM V. UNITED STATES, 94
U.S.APP.D.C. 228, 241, 214 F.2D 862, 875 (1954), WOULD STATE AN ISSUE
OF CONSTITUTIONAL DIMENSION WITH REGARD TO HIS CRIMINAL RESPONSIBILITY
HAD HE BEEN TRIED UNDER SOME DIFFERENT AND PERHAPS LESSER STANDARD,
E.G., THE RIGHT-WRONG TEST OF M'NAGHTEN'S CASE.  /29/  THE
EXPERIMENTATION OF ONE JURISDICTION IN THAT FIELD ALONE INDICATES THE
MAGNITUDE OF THE PROBLEM.  SEE, E.G., CARTER V. UNITED STATES, 102
U.S.APP.D.C. 227, 252 F.2D 608 (1957); BLOCKER V. UNITED STATES, 107
U.S.APP.D.C. 63, 274 F.2D 572 (1959); BLOCKER V. UNITED STATES, 110
U.S.APP.D.C. 41, 288 F.2D 853 (1961) (EN BANC); MCDONALD V. UNITED
STATES, 114 U.S.APP.D.C. 120, 312 F.2D 847 (1962) (EN BANC); WASHINGTON
V. UNITED STATES,-- U.S.APP.D.C.-- , 390 F.2D 444 (1967).  BUT
FORMULATING A CONSTITUTIONAL RULE WOULD REDUCE, IF NOT ELIMINATE, THAT
FRUITFUL EXPERIMENTATION, AND FREEZE THE DEVELOPING PRODUCTIVE DIALOGUE
BETWEEN LAW AND PSYCHIATRY INTO A RIGID CONSTITUTIONAL MOLD.  IT IS
SIMPLY NOT YET THE TIME TO WRITE INTO THE CONSTITUTION FORMULAS CAST IN
TERMS WHOSE MEANING, LET ALONE RELEVANCE, IS NOT YET CLEAR EITHER TO
DOCTORS OR TO LAWYERS. 

              AFFIRMED. 

/1/  TEX. CODE CRIM. PROC., ART. 4.03 (1966). 

/2/  E. JELLINEK, THE DISEASE CONCEPT OF ALCOHOLISM 11 (1960). 

/3/  ID., AT 12 (EMPHASIS IN ORIGINAL). 

/4/  SEE, E.G., JOINT INFORMATION SERV. OF THE AM. PSYCHIATRIC ASSN.
& THE NAT. ASSN. FOR MENTAL HEALTH, THE TREATMENT OF ALCOHOLISM-- A
STUDY OF PROGRAMS AND PROBLEMS 6-8 (1967) (HEREAFTER CITED AS TREATMENT
OF ALCOHOLISM). 

/5/  JELLINEK, SUPRA, N. 2, AT 35-41. 

/6/  FOR EXAMPLE, IN NATIONS WHERE LARGE QUANTITIES OF WINE ARE
CUSTOMARILY CONSUMED WITH MEALS, APPARENTLY THERE ARE MANY PEOPLE WHO
ARE COMPLETELY UNAWARE THAT THEY HAVE A "DRINKING PROBLEM"-- THEY
RARELY IF EVER SHOW SIGNS OF INTOXICATION, THEY DISPLAY NO MARKED
SYMPTOMS OF BEHAVIORAL DISORDER, AND ARE ENTIRELY CAPABLE OF LIMITING
THEIR ALCOHOLIC INTAKE TO A REASONABLE AMOUNT-- AND YET WHO DISPLAY
SEVERE WITHDRAWAL SYMPTOMS, SOMETIMES INCLUDING DELIRIUM TREMENS, WHEN
DEPRIVED OF THEIR DAILY PORTION OF WINE.  M. BLOCK, ALCOHOLISM-- ITS
FACETS AND PHASES 27 (1965); JELLINEK, SUPRA, N. 2, AT 17.  SEE
GENERALLY ID., AT 13-32. 

/7/  JELLINEK, SUPRA, N. 2, AT 40. 

/8/  JELLINEK, SUPRA, N. 2, AT 37. 

/9/  ID., AT 38. 

/10/  SEE BLOCK, SUPRA, N. 6, AT 19-49. 

/11/  JELLINEK, SUPRA, N. 2, AT 41-42. 

/12/  ID., AT 43. 

/13/  ID., AT 41-44. 

DR. WADE DID NOT CLARIFY MATTERS WHEN HE TESTIFIED AT TRIAL THAT A
CHRONIC ALCOHOLIC SUFFERS FROM "THE SAME TYPE OF COMPULSION" AS A
"COMPULSIVE EATER." 

/14/  SEE, E.G., BLOCK, SUPRA, N. 6, AT 40, 55, 308; TREATMENT OF
ALCOHOLISM 6-8; NOTE, ALCOHOLISM, PUBLIC INTOXICATION AND THE LAW, 2
COL.J.LAW&SOC.PROB.  109, 112-114 (1966). 

/15/  SEE WASHINGTON V. UNITED STATES,-- U.S. APP. D.C.-- , -- -- ,
390 F.2D 444, 446-456 (1967). 

/16/  SEE GENERALLY BLOCK, SUPRA, N. 6, AT 19-30, 43-49. 

/17/  SEE TREATMENT OF ALCOHOLISM 11. 

/18/  BLOCK, SUPRA, N. 6, AT 43-44; BLUM & BRAUNSTEIN, MINDALTERING
DRUGS AND DANGEROUS BEHAVIOR:  ALCOHOL, IN PRESIDENT'S COMMISSION ON
LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:
DRUNKENNESS 29, 30 (1967); NOTE, 2 COL.J.LAW&SOC.PROB.  109 (1966). 

/19/  SEE BLOCK, SUPRA, N. 6, AT 74-81; NOTE, 2 COL.J.LAW&SOC.PROB. 
109 (1966). 

/20/  SEE TREATMENT OF ALCOHOLISM 13-17. 

/21/  ID., AT 18-26. 

/22/  ENCOURAGING PILOT PROJECTS DO EXIST.  SEE PRESIDENT'S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE
REPORT:  DRUNKENNESS 50-64, 82-108 (1967).  BUT THE PRESIDENT'S
COMMISSION CONCLUDED THAT THE "STRONGEST BARRIER" TO THE ABANDONMENT OF
THE CURRENT USE OF THE CRIMINAL PROCESS TO DEAL WITH PUBLIC
INTOXICATION "IS THAT THERE PRESENTLY ARE NO CLEAR ALTERNATIVES FOR
TAKING INTO CUSTODY AND TREATING THOSE WHO ARE NOW ARRESTED AS
DRUNKS."  PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION
OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 235 (1967). 
MOREOVER, EVEN IF MASSIVE EXPENDITURES FOR PHYSICAL PLANTS WERE
FORTHCOMING, THERE IS A WOEFUL SHORTAGE OF TRAINED PERSONNEL TO MAN
THEM.  ONE STUDY HAS CONCLUDED THAT: 

"(THERE IS LITTLE LIKELIHOOD THAT THE NUMBER OF WORKERS IN THESE
FIELDS COULD BE SUFFICIENTLY INCREASED TO TREAT EVEN A LARGE MINORITY
OF PROBLEM DRINKERS.  IN CALIFORNIA, FOR INSTANCE, ACCORDING TO THE
BEST ESTIMATE AVAILABLE, PROVIDING ALL PROBLEM DRINKERS WITH WEEKLY
CONTACT WITH A PSYCHIATRIST AND ONCE-A-MONTH CONTACT WITH A SOCIAL
WORKER WOULD REQUIRE THE FULL TIME WORK OF EVERY PSYCHIATRIST AND EVERY
TRAINED SOCIAL WORKER IN THE UNITED STATES."  COOPERATIVE COMMISSION ON
STUDY OF ALCOHOLISM, ALCOHOL PROBLEMS 120 (1967) (EMPHASIS IN
ORIGINAL). 

/23/  FOR THE INADEQUATE RESPONSE IN THE DISTRICT OF COLUMBIA
FOLLOWING EASTER V. DISTRICT OF COLUMBIA, 124 U.S.APP.D.C. 33, 361 F.2D
50 (1966), WHICH HELD ON CONSTITUTIONAL AND STATUTORY GROUNDS THAT A
CHRONIC ALCOHOLIC COULD NOT BE PUNISHED FOR PUBLIC DRUNKENNESS, SEE
PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT OF COLUMBIA, REPORT 486
490 (1966). 

/24/  COUNSEL FOR AMICI CURIAE ACLU ET AL., WHO HAS BEEN EXTREMELY
ACTIVE IN THE RECENT SPATE OF LITIGATION DEALING WITH PUBLIC
INTOXICATION STATUTES AND THE CHRONIC INEBRIATE, RECENTLY TOLD AN
ANNUAL MEETING OF THE NATIONAL COUNCIL ON ALCOHOLISM: 

"WE HAVE NOT FOUGHT FOR TWO YEARS TO EXTRACT DEWITT EASTER, JOE
DRIVER, AND THEIR COLLEAGUES FROM JAIL, ONLY TO HAVE THEM INVOLUNTARILY
COMMITTED FOR AN EVEN LONGER PERIOD OF TIME, WITH NO ASSURANCE OF
APPROPRIATE REHABILITATIVE HELP AND TREATMENT . . . . THE EUPHEMISTIC
NAME 'CIVIL COMMITMENT' CAN EASILY HIDE NOTHING MORE THAN PERMANENT
INCARCERATION . . . . I WOULD CAUTION THOSE WHO MIGHT RUSH HEADLONG TO
ADOPT CIVIL COMMITMENT PROCEDURES AND REMIND THEM THAT JUST AS
DIFFICULT LEGAL PROBLEMS EXIST THERE AS WITH THE ORDINARY JAIL
SENTENCE."  QUOTED IN ROBITSCHER, PSYCHIATRY AND CHANGING CONCEPTS OF
CRIMINAL RESPONSIBILITY, 31 FED.PROB.  44, 49 (NO. 3, SEPT. 1967).  CF.
NOTE, THE NASCENT RIGHT TO TREATMENT, 53 VA.L.REV.  1134 (1967). 

/25/  SEE GENERALLY NOTE, THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE
AND THE SUBSTANTIVE CRIMINAL LAW, 79 HARV.L.REV.  635 (1966). 

/26/  CF.  COMMONWEALTH V. PHELAN, 427 PA. 265, 234 A.2D 540 (1967),
CERT. DENIED, 391 U.S. 920 (1968). 

/27/  THE COURT DID HOLD IN LAMBERT V. CALIFORNIA, 355 U.S. 225
(1957), THAT A PERSON COULD NOT BE PUNISHED FOR A "CRIME" OF OMISSION,
IF THAT PERSON DID NOT KNOW, AND THE STATE HAD TAKEN NO REASONABLE
STEPS TO INFORM HIM, OF HIS DUTY TO ACT AND OF THE CRIMINAL PENALTY FOR
FAILURE TO DO SO.  IT IS NOT SUGGESTED EITHER THAT LAMBERT ESTABLISHED
A CONSTITUTIONAL DOCTRINE OF MENS REA, SEE GENERALLY PACKER, MENS REA
AND THE SUPREME COURT, 1962 SUP.CT.REV.  107, OR THAT APPELLANT IN THIS
CASE WAS NOT FULLY AWARE OF THE PROHIBITED NATURE OF HIS CONDUCT AND OF
THE CONSEQUENCES OF TAKING HIS FIRST DRINK. 

/28/  SEE GENERALLY SAYRE, MENS REA, 45 HARV.L.REV.  974 (1932). 

/29/  10 CL.&FIN.  200, 8 ENG.REP.  718 (1843). 

MR. JUSTICE BLACK, WHOM MR. JUSTICE HARLAN JOINS, CONCURRING. 

WHILE I AGREE THAT THE GROUNDS SET FORTH IN MR. JUSTICE MARSHALL'S
OPINION ARE SUFFICIENT TO REQUIRE AFFIRMANCE OF THE JUDGMENT HERE, I
WISH TO AMPLIFY MY REASONS FOR CONCURRING. 

THOSE WHO FAVOR THE CHANGE NOW URGED UPON US RELY ON THEIR OWN
NOTIONS OF THE WISDOM OF THIS TEXAS LAW TO ERECT A CONSTITUTIONAL
BARRIER, THE DESIRABILITY OF WHICH IS FAR FROM CLEAR.  TO ADOPT THIS
POSITION WOULD SIGNIFICANTLY LIMIT THE STATES IN THEIR EFFORTS TO DEAL
WITH A WIDESPREAD AND IMPORTANT SOCIAL PROBLEM AND WOULD DO SO BY
ANNOUNCING A REVOLUTIONARY DOCTRINE OF CONSTITUTIONAL LAW THAT WOULD
ALSO TIGHTLY RESTRICT STATE POWER TO DEAL WITH A WIDE VARIETY OF OTHER
HARMFUL CONDUCT. 

        I. 

THOSE WHO FAVOR HOLDING THAT PUBLIC DRUNKENNESS CANNOT BE MADE A
CRIME RELY TO A LARGE EXTENT ON THEIR OWN NOTIONS OF THE WISDOM OF SUCH
A CHANGE IN THE LAW.  A GREAT DEAL OF MEDICAL AND SOCIOLOGICAL DATA IS
CITED TO US IN SUPPORT OF THIS CHANGE.  STRESS IS PUT UPON THE FACT
THAT MEDICAL AUTHORITIES CONSIDER ALCOHOLISM A DISEASE AND HAVE URGED A
VARIETY OF MEDICAL APPROACHES TO TREATING IT.  IT IS POINTED OUT THAT A
HIGH PERCENTAGE OF ALL ARRESTS IN AMERICA ARE FOR THE CRIME OF PUBLIC
DRUNKENNESS AND THAT THE ENFORCEMENT OF THESE LAWS CONSTITUTES A
TREMENDOUS BURDEN ON THE POLICE.  THEN IT IS ARGUED THAT THERE IS NO
BASIS WHATEVER FOR CLAIMING THAT TO JAIL CHRONIC ALCOHOLICS CAN BE A
DETERRENT OR A MEANS OF TREATMENT; ON THE CONTRARY, JAIL HAS, IN THE
EXPERT JUDGMENT OF THESE SCIENTISTS, A DESTRUCTIVE EFFECT.  ALL IN ALL,
THESE ARGUMENTS READ MORE LIKE A HIGHLY TECHNICAL MEDICAL CRITIQUE THAN
AN ARGUMENT FOR DECIDING A QUESTION OF CONSTITUTIONAL LAW ONE WAY OR
ANOTHER. 

OF COURSE, THE DESIRABILITY OF THIS TEXAS STATUTE SHOULD BE
IRRELEVANT IN A COURT CHARGED WITH THE DUTY OF INTERPRETATION RATHER
THAN LEGISLATION, AND THAT SHOULD BE THE END OF THE MATTER.  BUT SINCE
PROPONENTS OF THIS GRAVE CONSTITUTIONAL CHANGE INSIST ON OFFERING THEIR
PRONOUNCEMENTS ON THESE QUESTIONS OF MEDICAL DIAGNOSIS AND SOCIAL
POLICY, I AM COMPELLED TO ADD THAT, SHOULD WE FOLLOW THEIR ARGUMENTS,
THE COURT WOULD BE VENTURING FAR BEYOND THE REALM OF PROBLEMS FOR WHICH
WE ARE IN A POSITION TO KNOW WHAT WE ARE TALKING ABOUT.     PUBLIC
DRUNKENNESS HAS BEEN A CRIME THROUGHOUT OUR HISTORY, AND EVEN BEFORE
OUR HISTORY IT WAS EXPLICITLY PROSCRIBED BY A 1606 ENGLISH STATUTE, 4
JAC.  1, C. 5.  IT IS TODAY MADE AN OFFENSE IN EVERY STATE IN THE
UNION.  THE NUMBER OF POLICE TO BE ASSIGNED TO ENFORCING THESE LAWS AND
THE AMOUNT OF TIME THEY SHOULD SPEND IN THE EFFORT WOULD SEEM TO ME A
QUESTION FOR EACH LOCAL COMMUNITY.  NEVER, EVEN BY THE WILDEST STRETCH
OF THIS COURT'S JUDICIAL REVIEW POWER, COULD IT BE THOUGHT THAT A
STATE'S CRIMINAL LAW COULD BE STRUCK DOWN BECAUSE THE AMOUNT OF TIME
SPENT IN ENFORCING IT CONSTITUTED, IN SOME EXPERT'S OPINION, A
TREMENDOUS BURDEN. 

JAILING OF CHRONIC ALCOHOLICS IS DEFINITELY DEFENDED AS THERAPEUTIC,
AND THE CLAIMS OF THERAPEUTIC VALUE ARE NOT INSUBSTANTIAL.  AS APPELLEE
NOTES, THE ALCOHOLICS ARE REMOVED FROM THE STREETS, WHERE IN THEIR
INTOXICATED STATE THEY MAY BE IN PHYSICAL DANGER, AND ARE GIVEN FOOD,
CLOTHING, AND SHELTER UNTIL THEY "SOBER UP, AND THUS AT LEAST REGAIN
THEIR ABILITY TO KEEP FROM BEING RUN OVER BY AUTOMOBILES IN THE
STREET.  OF COURSE, THIS TREATMENT MAY NOT BE "THERAPEUTIC" IN THE
SENSE OF CURING THE UNDERLYING CAUSES OF THEIR BEHAVIOR, BUT IT SEEMS
PROBABLE THAT THE EFFECT OF JAIL ON ANY CRIMINAL IS SELDOM
"THERAPEUTIC" IN THIS SENSE, AND IN ANY CASE THE MEDICAL AUTHORITIES
RELIED ON SO HEAVILY BY APPELLANT THEMSELVES STRESS THAT NO GENERALLY
EFFECTIVE METHOD OF CURING ALCOHOLICS HAS YET BEEN DISCOVERED. 

APART FROM THE VALUE OF JAIL AS A FORM OF TREATMENT, JAIL SERVES
OTHER TRADITIONAL FUNCTIONS OF THE CRIMINAL LAW.  FOR ONE THING, IT
GETS THE ALCOHOLICS OFF THE STREET, WHERE THEY MAY CAUSE HARM IN A
NUMBER OF WAYS TO A NUMBER OF PEOPLE, AND ISOLATION OF THE DANGEROUS
HAS ALWAYS BEEN CONSIDERED AN IMPORTANT FUNCTION OF THE CRIMINAL LAW. 
IN ADDITION, PUNISHMENT OF CHRONIC ALCOHOLICS CAN SERVE SEVERAL
DETERRENT FUNCTIONS-- IT CAN GIVE POTENTIAL ALCOHOLICS AN ADDITIONAL
INCENTIVE TO CONTROL THEIR DRINKING, AND IT MAY, EVEN IN THE CASE OF
THE CHRONIC ALCOHOLIC, STRENGTHEN HIS INCENTIVE TO CONTROL THE
FREQUENCY AND LOCATION OF HIS DRINKING EXPERIENCES. 

THESE VALUES SERVED BY CRIMINAL PUNISHMENT ASSUME EVEN GREATER
SIGNIFICANCE IN LIGHT OF THE AVAILABLE ALTERNATIVES FOR DEALING WITH
THE PROBLEM OF ALCOHOLISM.  CIVIL COMMITMENT FACILITIES MAY NOT BE ANY
BETTER THAN THE JAILS THEY WOULD REPLACE.  IN ADDITION, COMPULSORY
COMMITMENT CAN HARDLY BE CONSIDERED A LESS SEVERE PENALTY FROM THE
ALCOHOLIC'S POINT OF VIEW.  THE COMMITMENT PERIOD WILL PRESUMABLY BE AT
LEAST AS LONG, AND IT MIGHT IN FACT BE LONGER SINCE COMMITMENT OFTEN
LASTS UNTIL THE "SICK" PERSON IS CURED.  AND COMPULSORY COMMITMENT
WOULD OF COURSE CARRY WITH IT A SOCIAL STIGMA LITTLE DIFFERENT IN
PRACTICE FROM THAT ASSOCIATED WITH DRUNKENNESS WHEN IT IS LABELED A
"CRIME." 

EVEN THE MEDICAL AUTHORITIES STRESS THE NEED FOR CONTINUED
EXPERIMENTATION WITH A VARIETY OF APPROACHES.  I CANNOT SAY THAT THE
STATES SHOULD BE TOTALLY BARRED FROM ONE AVENUE OF EXPERIMENTATION, THE
CRIMINAL PROCESS, IN ATTEMPTING TO FIND A MEANS TO COPE WITH THIS
DIFFICULT SOCIAL PROBLEM.  FROM WHAT I HAVE BEEN ABLE TO LEARN ABOUT
THE SUBJECT, IT SEEMS TO ME THAT THE PRESENT USE OF CRIMINAL SANCTIONS
MIGHT POSSIBLY BE UNWISE, BUT I AM BY NO MEANS CONVINCED THAT ANY USE
OF CRIMINAL SANCTIONS WOULD INEVITABLY BE UNWISE OR, ABOVE ALL, THAT I
AM QUALIFIED IN THIS AREA TO KNOW WHAT IS LEGISLATIVELY WISE AND WHAT
IS LEGISLATIVELY UNWISE. 

       II. 

I AGREE WITH MR. JUSTICE MARSHALL THAT THE FINDINGS OF FACT IN THIS
CASE ARE INADEQUATE TO JUSTIFY THE SWEEPING CONSTITUTIONAL RULE URGED
UPON US.  I COULD NOT, HOWEVER, CONSIDER ANY FINDINGS THAT COULD BE
MADE WITH RESPECT TO "VOLUNTARINESS" OR "COMPULSION" CONTROLLING ON THE
QUESTION WHETHER A SPECIFIC INSTANCE OF HUMAN BEHAVIOR SHOULD BE IMMUNE
FROM PUNISHMENT AS A CONSTITUTIONAL MATTER.  WHEN WE SAY THAT
APPELLANT'S APPEARANCE IN PUBLIC IS CAUSED NOT BY "HIS OWN" VOLITION
BUT RATHER BY SOME OTHER FORCE, WE ARE CLEARLY THINKING OF A FORCE THAT
IS NEVERTHELESS "HIS" EXCEPT IN SOME SPECIAL SENSE.  /1/ THE ACCUSED
UNDOUBTEDLY COMMITS THE PROSCRIBED ACT AND THE ONLY QUESTION IS WHETHER
THE ACT CAN BE ATTRIBUTED TO A PART OF "HIS" PERSONALITY THAT SHOULD
NOT BE REGARDED AS CRIMINALLY RESPONSIBLE.  ALMOST ALL OF THE
TRADITIONAL PURPOSES OF THE CRIMINAL LAW CAN BE SIGNIFICANTLY SERVED BY
PUNISHING THE PERSON WHO IN FACT COMMITTED THE PROSCRIBED ACT, WITHOUT
REGARD TO WHETHER HIS ACTION WAS "COMPELLED" BY SOME ELUSIVE
"IRRESPONSIBLE" ASPECT OF HIS PERSONALITY.  AS I HAVE ALREADY
INDICATED, PUNISHMENT OF SUCH A DEFENDANT CAN CLEARLY BE JUSTIFIED IN
TERMS OF DETERRENCE, ISOLATION, AND TREATMENT.  ON THE OTHER HAND,
MEDICAL DECISIONS CONCERNING THE USE OF A TERM SUCH AS "DISEASE" OR
"VOLITION," BASED AS THEY ARE ON THE CLINICAL PROBLEMS OF DIAGNOSIS AND
TREATMENT, BEAR NO NECESSARY CORRESPONDENCE TO THE LEGAL DECISION
WHETHER THE OVERALL OBJECTIVES OF THE CRIMINAL LAW CAN BE FURTHERED BY
IMPOSING PUNISHMENT.  FOR THESE REASONS, MUCH AS I THINK THAT CRIMINAL
SANCTIONS SHOULD IN MANY SITUATIONS BE APPLIED ONLY TO THOSE WHOSE
CONDUCT IS MORALLY BLAMEWORTHY, SEE MORISSETTE V. UNITED STATES, 342
U.S. 246 (1952), I CANNOT THINK THE STATES SHOULD BE HELD
CONSTITUTIONALLY REQUIRED TO MAKE THE INQUIRY AS TO WHAT PART OF A
DEFENDANT'S PERSONALITY IS RESPONSIBLE FOR HIS ACTIONS AND TO EXCUSE
ANYONE WHOSE ACTION WAS, IN SOME COMPLEX, PSYCHOLOGICAL SENSE, THE
RESULT OF A "COMPULSION."  /2/

        III. 

THE RULE OF CONSTITUTIONAL LAW URGED BY APPELLANT IS NOT REQUIRED BY
ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962).  IN THAT CASE WE HELD THAT
A PERSON COULD NOT BE PUNISHED FOR THE MERE STATUS OF BEING A NARCOTICS
ADDICT.  WE EXPLICITLY LIMITED OUR HOLDING TO THE SITUATION WHERE NO
CONDUCT OF ANY KIND IS INVOLVED, STATING: 

     "WE HOLD THAT A STATE LAW WHICH IMPRISONS A PERSON THUS

  AFFLICTED AS A CRIMINAL, EVEN THOUGH HE HAS NEVER TOUCHED ANY

  NARCOTIC DRUG WITHIN THE STATE OR BEEN GUILTY OF ANY IRREGULAR

BEHAVIOR THERE, INFLICTS A CRUEL AND UNUSUAL PUNISHMENT IN

 VIOLATION OF THE FOURTEENTH AMENDMENT."  370 U.S.,AT 667. 

THE ARGUMENT IS MADE THAT APPELLANT COMES WITHIN THE TERMS OF OUR
HOLDING IN ROBINSON BECAUSE BEING DRUNK IN PUBLIC IS A MERE STATUS OR
"CONDITION."  DESPITE THIS MANY-FACETED USE OF THE CONCEPT OF
"CONDITION," THIS ARGUMENT WOULD REQUIRE CONVERTING ROBINSON INTO A
CASE PROTECTING ACTUAL BEHAVIOR, A STEP WE LXPLICITLY REFUSED TO TAKE
IN THAT DECISION. 

A DIFFERENT QUESTION, I ADMIT, IS WHETHER OUR ATTEMPT IN ROBINSON TO
LIMIT OUR HOLDING TO PURE STATUS CRIMES, INVOLVING NO CONDUCT WHATEVER,
WAS A SOUND ONE.  I BELIEVE IT WAS.  ALTHOUGH SOME OF OUR OBJECTIONS TO
THE STATUTE IN ROBINSON ARE EQUALLY APPLICABLE TO STATUTES THAT PUNISH
CONDUCT "SYMPTOMATIC" OF A DISEASE, ANY ATTEMPT TO EXPLAIN ROBINSON AS
BASED SOLELY ON THL LACK OF VOLUNTARINESS ENCOUNTERS A NUMBER OF
LOGICAL DIFFICULTIES.  /3/  OTHER PROBLEMS RAISED BY STATUS CRIMES ARE
IN NO WAY INVOLVED WHEN THE STATE ATTEMPTS TO PUNISH FOR CONDUCT, AND
THESE OTHER PROBLEMS WERE, IN MY VIEW, THE CONTROLLING ASPECTS OF OUR
DECISION. 

PUNISHMENT FOR A STATUS IS PARTICULARLY OBNOXIOUS, AND IN MANY
INSTANCES CAN REASONABLY BE CALLED CRUEL AND UNUSUAL, BECAUSE IT
INVOLVES PUNISHMENT FOR A MERE PROPENSITY, A DESIRE TO COMMIT AN
OFFENSE; THE MENTAL ELEMENT IS NOT SIMPLY ONE PART OF THE CRIME BUT
MANY CONSTITUTE ALL OF IT.  THIS IS A SITUATION UNIVERSALLY SOUGHT TO
BE AVOIDED IN OUR CRIMINAL LAW; THE FUNDAMENTAL REQUIREMENT THAT SOME
ACTION BE PROVED IS SOLIDLY ESTABLISHED EVEN FOR OFFENSES MOST HEAVILY
BASED ON PROPENSITY, SUCH AS ATTEMPT, CONSPIRACY, AND RECIDIVIST
CRIMES.  /4/  IN INSTANCE, IN ALL OF ANGLO-AMERICAN JURISPRUDENCE, IN
WHICH CRIMINAL RESPONSIBILITY WAS IMPOSED IN THE ABSENCE OF ANY ACT AT
ALL.  /5/ 

THE REASONS FOR THIS REFUSAL TO PERMIT CONVICTION WITHOUT PROOF OF
AN ACT ARE DIFFICULT TO SPELL OUT, BUT THEY ARE NONETHELESS PERCEIVED
AND UNIVERSALLY EXPRESSED IN OUR CRIMINAL LAW.  EVIDENCE OF PROPENSITY
CAN BE CONSIDERED RELATIVELY UNRELIABLE AND MORE DIFFICULT FOR A
DEFENDANT TO REBUT; THE REQUIREMENT OF A SPECIFIC ACT THUS PROVIDES
SOME PROTECTION AGAINST FALSE CHARGES.  SEE 4 BLACKSTONE, COMMENTARIES
21.  PERHAPS MORE FUNDAMENTAL IS THE DIFFICULTY OF DISTINGUISHING, IN
THE ABSENCE OF ANY CONDUCT, BETWEEN DESIRES OF THE DAY-DREAM VARIETY
AND FIXED INTENTIONS THAT MAY POSE A REAL THREAT TO SOCIETY; EXTENDING
THE CRIMINAL LAW TO COVER BOTH TYPES OF DESIRE WOULD BE UNTHINKABLE,
SINCE "(THERE CAN HARDLY BE ANYONE WHO HAS NEVER THOUGHT EVIL.  WHEN A
DESIRE IS INHIBITED IT MAY FIND EXPRESSION IN FANTASY; BUT IT WOULD BE
ABSURD TO CONDEMN THIS NATURAL PSYCHOLOGICAL MECHANISM AS ILLEGAL." 
/6/ 

IN CONTRAST, CRIMES THAT REQUIRE THE STATE TO PROVE THAT THE
DEFENDANT ACTUALLY COMMITTED SOME PROSCRIBED ACT INVOLVE NONE OF THESE
SPECIAL PROBLEMS.  IN ADDITION, THE QUESTION WHETHER AN ACT IS
"INVOLUNTARY" IS, AS I HAVE ALREADY INDICATED, AN INHERENTLY ELUSIVE
QUESTION, AND ONE WHICH THE STATE MAY, FOR GOOD REASONS, WISH TO REGARD
AS IRRELEVANT.  IN LIGHT OF ALL THESE CONSIDERATIONS, OUR LIMITATION OF
OUR ROBINSON HOLDING TO PURE STATUS CRIMES SEEMS TO ME ENTIRELY
PROPER. 

        IV. 

THE RULE OF CONSTITUTIONAL LAW URGED UPON US BY APPELLANT WOULD HAVE
A REVOLUTIONARY IMPACT ON THE CRIMINAL LAW, AND ANY POSSIBLE LIMITS
PROPOSED FOR THE RULE WOULD BE WHOLLY ILLUSORY.  IF THE ORIGINAL
BOUNDARIES OF ROBINSON ARE TO BE DISCARDED, ANY NEW LIMITS TOO WOULD
SOON FALL BY THE WAYSIDE AND THE COURT WOULD BE FORCED TO HOLD THE
STATES POWERLESS TO PUNISH ANY CONDUCT THAT COULD BE SHOWN TO RESULT
FROM A "COMPULSION," IN THE COMPLEX, PSYCHOLOGICAL MEANING OF THAT
TERM.  THE RESULT, TO CHOOSE JUST ONE ILLUSTRATION, WOULD BE TO REQUIRE
RECOGNITION OF "IRRESISTIBLE IMPULSE" AS A COMPLETE DEFENSE TO ANY
CRIME; THIS IS PROBABLY CONTRARY TO PRESENT LAW IN MOST AMERICAN
JURISDICTIONS.  /7/ 

THE REAL REACH OF ANY SUCH DECISION, HOWEVER, WOULD BE BRAODER
STILL, FOR THE BASIC PREMISE UNDERLYING THE ARGUMENT IS THAT IT IS
CRUEL AND UNUSUAL TO PUNISH A PERSON WHO IS NOT MORALLY BLAMEWORTHY.  I
STATE THE PROPOSITION IN THIS SYMPATHETIC WAY BECAUSE I FEEL THERE IS
MUCH TO BE SAID FOR AVOIDING THE USE OF CRIMINAL SANCTIONS IN MANY SUCH
SITUATIONS.  SEE MORISSETTE V. UNITED STATES, SUPRA.  BUT THE QUESTION
HERE IS ONE OF CONSTITUTIONAL LAW.  THE LEGISLATURES HAVE ALWAYS BEEN
ALLOWED WIDE FREEDOM TO DETERMINE THE EXTENT TO WHICH MORAL CULPABILITY
SHOULD BE A PREREQUISITE TO CONVICTION OF A CRIME.  E.G., UNITED STATES
V. DOTTERWEICH, 320 U.S. 277 (1943).  THE CRIMINAL LAW IS A SOCIAL TOOL
THAT IS EMPLOYED IN SEEKING A WIDE VARIETY OF GOALS, AND I CANNOT SAY
THE EIGHTH AMENDMENT'S LIMITS ON THE USE OF CRIMINAL SANCTIONS EXTEND
AS FAR AS THIS VIEWPOINT WOULD INEVITABLY CARRY THEM. 

BUT EVEN IF WE WERE TO LIMIT ANY HOLDING IN THIS FIELD TO
"COMPULSIONS" THAT ARE "SYMPTOMATIC" OF A "DISEASE," IN THE WORDS OF
THE FINDINGS OF THE TRIAL COURT, THE SWEEP OF THAT HOLDING WOULD STILL
BE STARTLING.  SUCH A RULING WOULD MAKE IT CLEAR BEYOND ANY DOUBT THAT
A NARCOTICS ADDICT COULD NOT BE PUNISHED FOR "BEING" IN POSSESSION OF
DRUGS OR, FOR THAT MATTER, FOR "BEING" GUILTY OF USING THEM.  A WIDE
VARIETY OF SEX OFFENDERS WOULD BE IMMUNE FROM PUNISHMENT IF THEY COULD
SHOW THAT THEIR CONDUCT WAS NOT VOLUNTARY BUT PART OF THE PATTERN OF A
DISEASE.  MORE GENERALLY SPEAKING, A FORM OF THE INSANITY DEFENSE WOULD
BE MADE A CONSTITU,IONAL REQUIREMENT THROUGHOUT THE NATION, SHOULD THE
COURT NOW HOLD IT CRUEL AND UNUSUAL TO PUNISH A PERSON AFFLICTED WITH
ANY MENTAL DISEASE WHENEVER HIS CONDUCT WAS PART OF THE PATTERN OF HIS
DISEASE AND OCCASIONED BY A COMPULSION SYMPTOMATIC OF THE DISEASE. 
SUCH A HOLDING WOULD APPEAR TO OVERRULE LELAND V. OREGON, 343 U.S. 790
(1952), WHERE THE MAJORITY OPINION AND THE DISSENTING OPINION IN WHICH
I JOINED BOTH STRESSED THE INDEFENSIBILITY OF IMPOSING ON THE STATES
ANY PARTICULAR TEST OF CRIMINAL RESPONSIBILITY.  ID., AT 800-801; ID.,
AT 803 (FRANKFURTER, J., DISSENTING). 

THE IMPACT OF THE HOLDING URGED UPON US WOULD, OF COURSE, BE
GREATEST IN THOSE STATES WHICH HAVE UNTIL NOW REFUSED TO ACCEPT ANY
QUALIFICATIONS TO THE "RIGHT FROM WRONG" TEST OF INSANITY; APPARENTLY
AT LEAST 30 STATES FALL INTO THIS CATEGORY.  /8/  BUT EVEN IN STATES
WHICH HAVE RECOGNIZED INSANITY DEFENSES SIMILAR TO THE PROPOSED NEW
CONSTITUTIONAL RULE, OR WHERE COMPARABLE DEFENSES COULD BE PRESENTED IN
TERMS OF THE REQUIREMENT OF A GUILTY MIND (MENS REA), THE PROPOSED NEW
CONSTITUTIONAL RULE WOULD BE DEVASTATING, FOR CONSTITUTIONAL QUESTIONS
WOULD BE RAISED BY EVERY STATE EFFORT TO REGULATE THE ADMISSIBILITY OF
EVIDENCE RELATING TO "DISEASE" AND "COMPULSION," AND BY EVERY STATE
ATTEMPT TO EXPLAIN THESE CONCEPTS IN INSTRUCTIONS TO THE JURY.  THE
TEST URGED WOULD MAKE IT NECESSARY TO DETERMINE, NOT ONLY WHAT
CONSTITUTES A "DISEASE," BUT ALSO WHAT IS THE "PATTERN" OF THE DISEASE,
WHAT "CONDITIONS" ARE "PART" OF THE PATTERN, WHAT PARTS OF THIS PATTERN
RESULT FROM A "COMPULSION," AND FINALLY WHICH OF THESE COMPULSIONS ARE
"SYMPTOMATIC" OF THE DISEASE.  THE RESULTING CONFUSION AND UNCERTAINTY
COULD EASILY SURPASS THAT EXPERIENCED BY THE DISTRICT OF COLUMBIA
CIRCUIT IN ATTEMPTING TO GIVE CONTENT TO ITS SIMILAR, THOUGH SOMEWHAT
LESS COMPLICATED, TEST OF INSANITY.  /9/  THE RANGE OF PROBLEMS CREATED
WOULD SEEM TOTALLY BEYOND OUR CAPACITY TO SETTLE AT ALL, MUCH LESS TO
SETTLE WISELY, AND EVEN THE ATTEMPT TO DEFINE THESE TERMS AND THUS TO
IMPOSE CONSTITUTIONAL AND DOCTRINAL RIGIDITY SEEMS ABSURD IN AN AREA
WHERE OUR UNDERSTANDING IS EVEN TODAY SO INCOMPLETE.              V. 

PERCEPTIVE STUDENTS OF HISTORY AT AN EARLY DATE LEARNED THAT ONE
COUNTRY CONTROLLING ANOTHER COULD DO A MORE SUCCESSFUL JOB IF IT
PERMITTED THE LATTER TO KEEP IN FORCE THE LAWS AND RULES OF CONDUCT
WHICH IT HAD ADOPTED FOR ITSELF.  WHEN OUR NATION WAS CREATED BY THE
CONSTITUTION OF 1789, MANY PEOPLE FEARED THAT THE 13 STRAGGLING,
STRUGGLING STATES ALONG THE ATLANTIC COMPOSED TOO GREAT AN AREA EVER TO
BE CONTROLLED FROM ONE CENTRAL POINT.  AS THE YEARS WENT ON, HOWEVER,
THE NATION CREPT CAUTIOUSLY WESTWARD UNTIL IT REACHED THE PACIFIC OCEAN
AND FINALLY THE NATION PLANTED ITS FLAG ON THE FAR-DISTANT ISLANDS OF
HAWAII AND ON THE FROZEN PEAKS OF ALASKA.  DURING ALL THIS PERIOD THE
NATION REMEMBERED THAT IT COULD BE MORE TRANQUIL AND ORDERLY IF IT
FUNCTIONED ON THE PRINCIPLE THAT THE LOCAL COMMUNITIES SHOULD CONTROL
THEIR OWN PECULIARLY LOCAL AFFAIRS UNDER THEIR OWN LOCAL RULES. 

THIS COURT IS URGED TO FORGET THAT LESSON TODAY.  WE ARE ASKED TO
TELL THE MOST-DISTANT ISLANDS OF HAWAII THAT THEY CANNOT APPLY THEIR
LOCAL RULES SO AS TO PROTECT A DRUNKEN MAN ON THEIR BEACHES AND THE
LOCAL COMMUNITIES OF ALASKA THAT THEY ARE WITHOUT POWER TO FOLLOW THEIR
OWN COURSE IN DECIDING WHAT IS THE BEST WAY TO TAKE CARE OF A DRUNKEN
MAN ON THEIR FROZEN SOIL.  THIS COURT, INSTEAD OF RECOGNIZING THAT THE
EXPERIENCE OF HUMAN BEINGS IS THE BEST WAY TO MAKE LAWS, IS ASKED TO
SET ITSELF UP AS A BOARD OF PLATONIC GUARDIANS TO ESTABLISH RIGID,
BINDING RULES UPON EVERY SMALL COMMUNITY IN THIS LARGE NATION FOR THE
CONTROL OF THE UNFORTUNATE PEOPLE WHO FALL VICTIM TO DRUNKENNESS.  IT
IS ALWAYS TIME TO SAY THAT THIS NATION IS TOO LARGE, TOO COMPLEX AND
COMPOSED OF TOO GREAT A DIVERSITY OF PEOPLES FOR ANY ONE OF US TO HAVE
THE WISDOM TO ESTABLISH THE RULES BY WHICH LOCAL AMERICANS MUST GOVERN
THEIR LOCAL AFFAIRS.  THE CONSTITUTIONAL RULE WE ARE URGED TO ADOPT IS
NOT MERELY REVOLUTIONARY-- IT DEPARTS FROM THE ANCIENT FAITH BASED ON
THE PREMISE THAT EXPERIENCE IN MAKING LOCAL LAWS BY LOCAL PEOPLE
THEMSELVES IS BY FAR THE SAFEST GUIDE FOR A NATION LIKE OURS TO
FOLLOW.  I SUSPECT THIS IS A MOST PROPITIOUS TIME TO REMEMBER THE WORDS
OF THE LATE JUDGE LEARNED HAND, WHO SO WISELY SAID: 

     "FOR MYSELF IT WOULD BE MOST IRKSOME TO BE RULED BY A BEVY OF

  PLATONIC GUARDIANS, EVEN IF I KNEW HOW TO CHOOSE THEM, WHICH I

  ASSUREDLY DO NOT."  L. HAND, THE BILL OF RIGHTS 73 (1958). 

I WOULD CONFESS THE LIMITS OF MY OWN ABILITY TO ANSWER THE AGE-OLD
QUESTIONS OF THE CRIMINAL LAW'S ETHICAL FOUNDATIONS AND PRACTICAL
EFFECTIVENESS.  I WOULD HOLD THAT ROBINSON V. CALIFORNIA ESTABLISHES A
FIRM AND IMPENETRABLE BARRIER TO THE PUNISHME NT OF PERSONS WHO,
WHATEVER THEIR BARE DESIRES AND PROPENSITIES, HAVE COMMITTED NO
PROSCRIBED WRONGFUL ACT.  BUT I WOULD REFUSE TO PLUNGE FROM THE
CONCRETE AND ALMOST UNIVERSALLY RECOGNIZED PREMISES OF ROBINSON INTO
THE MURKY PROBLEMS RAISED BY THE INSISTENCE THAT CHRONIC ALCOHOLICS
CANNOT BE PUNISHED FOR PUBLIC DRUNKENNESS, PROBLEMS THAT NO PERSON,
WHETHER LAYMAN OR EXPERT, CAN CLAIM TO UNDERSTAND, AND WITH
CONSEQUENCES THAT NO ONE CAN SAFELY PREDICT.  I JOIN IN AFFIRMANCE OF
THIS CONVICTION. 

/1/  IF AN INTOXICATED PERSON IS ACTUALLY CARRIED INTO THE STREET BY
SOMEONE ELSE, "HE" DOES NOT DO THE ACT AT ALL, AND OF COURSE HE IS
ENTITLED TO ACQUITTAL.  E.G., MARTIN V. STATE, 31 ALA.APP.  334, 17
SO.2D 427 (1944). 

/2/  THE NEED FOR A CAUTIOUS AND TENTATIVE APPROACH HAS BEEN
THOROUGHLY RECOGNIZED BY ONE OF THE MOST ACTIVE WORKERS FOR REFORM IN
THIS AREA, CHIEF JUDGE BAZELON OF THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT.  IN A RECENT DECISION LIMITING
THE SCOPE OF PSYCHIATRIC TESTIMONY IN INSANITY DEFENSE CASES, JUDGE
BAZELON STATES: 

"(IT MAY BE THAT PSYCHIATRY AND THE OTHER SOCIAL AND BEHAVIORAL
SCIENCES CANNOT PROVIDE SUFFICIENT DATA RELEVANT TO A DETERMINATION OF
CRIMINAL RESPONSIBILITY NO MATTER WHAT OUR RULES OF EVIDENCE ARE.  IF
SO, WE MAY BE FORCED TO ELIMINATE THE INSANITY DEFENSE ALTOGETHER, OR
REFASHION IT IN A WAY WHICH IS NOT TIED SO TIGHTLY TO THE MEDICAL MODEL
. . . . BUT AT LEAST WE WILL BE ABLE TO MAKE THAT DECISION ON THE BASIS
OF AN INFORMED EXPERIENCE.  FOR NOW THE WRITER IS CONTENT TO JOIN THE
COURT IN THIS FIRST STEP."  WASHINGTON V. UNITED STATES,-- U.S. APP.
D.C.-- , -- , N. 33, 390 F.2D 444, 457, N. 33 (1967) (EXPRESSING THE
VIEWS OF CHIEF JUDGE BAZELON). 

/3/  ALTHOUGH WE NOTED IN ROBINSON, 370 U.S.,AT 667, THAT NARCOTICS
ADDICTION APPARENTLY IS AN ILLNESS THAT CAN BE CONTRACTED INNOCENTLY OR
INVOLUNTARILY, WE BARRED PUNISHMENT FOR ADDICTION EVEN WHEN IT COULD BE
PROVED THAT THE DEFENDANT HAD VOLUNTARILY BECOME ADDICTED.  AND WE
COMPARED ADDICTION TO THE STATUS OF HAVING A COMMON COLD, A CONDITION
THAT MOST PEOPLE CAN EITHER AVOID OR QUICKLY CURE WHEN IT IS IMPORTANT
ENOUGH FOR THEM TO DO SO. 

/4/  AS GLANVILLE WILLIAMS PUTS IT, "(THAT CRIME REQUIRES AN ACT IS
INVARIABLY TRUE IF THE PROPOSITION BE READ AS MEANING THAT A PRIVATE
THOUGHT IS NOT SUFFICIENT TO FOUND RESPONSIBILITY."  WILLIAMS, CRIMINAL
LAW-- THE GENERAL PART 1 (1961).  (EMPHASIS ADDED.)  FOR THE
REQUIREMENT OF SOME ACT AS AN ELEMENT OF CONSPIRACY AND ATTEMPT, SEE
ID., AT 631, 663, 668; R. PERKINS, CRIMINAL LAW 482, 531-532 (1957). 

/5/  WILLIAMS, SUPRA, N. 4, AT 11. 

/6/  ID., AT 2. 

/7/ PERKINS, SUPRA, N. 4, AT 762. 

/8/  SEE MODEL PENAL CODE SEC. 4.01, AT 160 (TENT.  DRAFT NO. 4,
1955). 

/9/  DURHAM V. UNITED STATES, 94 U.S.APP.D.C. 228, 214 F.2D 862
(1954).  SOME OF THE ENORMOUS DIFFICULTIES ENCOUNTERED BY THE DISTRICT
OF COLUMBIA CIRCUIT IN ATTEMPTING TO APPLY ITS DURHAM RULE ARE RELATED
IN H.R. REP. NO. 563, 87TH CONG., 1ST SESS. (1961).  THE DIFFICULTIES
AND SHORTCOMINGS OF THE DURHAM RULE HAVE BEEN FULLY ACKNOWLEDGED BY THE
DISTRICT OF COLUMBIA CIRCUIT ITSELF, AND IN PARTICULAR BY THE AUTHOR OF
THE DURHAM OPINION.  SEE WASHINGTON V. UNITED STATES, SUPRA. 

MR. JUSTICE WHITE, CONCURRING IN THE RESULT. 

IF IT CANNOT BE A CRIME TO HAVE AN IRRESISTIBLE COMPULSION TO USE
NARCOTICS, ROBINSON V. CALIFORNIA, 370 U.S. 660, REHEARING DENIED, 371
U.S. 905 (1962), I DO NOT SEE HOW IT CAN CONSTITUTIONALLY BE A CRIME TO
YIELD TO SUCH A COMPULSION.  PUNISHING AN ADDICT FOR USING DRUGS
CONVICTS FOR ADDICTION UNDER A DIFFERENT NAME.  DISTINGUISHING BETWEEN
THE TWO CRIMES IS LIKE FORBIDDING CRIMINAL CONVICTION FOR BEING SICK
WITH FLU OR EPILEPSY BUT PERMITTING PUNISHMENT FOR RUNNING A FEVER OR
HAVING A CONVULSION.  UNLESS ROBINSON IS TO BE ABANDONED, THE USE OF
NARCOTICS BY AN ADDICT MUST BE BEYOND THE REACH OF THE CRIMINAL LAW. 
SIMILARLY, THE CHRONIC ALCOHOLIC WITH AN IRRESISTIBLE URGE TO CONSUME
ALCOHOL SHOULD NOT BE PUNISHABLE FOR DRINKING OR FOR BEING DRUNK. 

POWELL'S CONVICTION WAS FOR THE DIFFERENT CRIME OF BEING DRUNK IN A
PUBLIC PLACE.  THUS EVEN IF POWELL WAS COMPELLED TO DRINK, AND SO COULD
NOT CONSTITUTIONALLY BE CONVICTED FOR DRINKING, HIS CONVICTION IN THIS
CASE CAN BE INVALIDATED ONLY IF THERE IS A CONSTITUTIO,AL BASIS FOR
SAYING THAT HE MAY NOT BE PUNISHED FOR BEING IN PUBLIC WHILE DRUNK. 
THE STATUTE INVOLVED HERE, WHICH AIMS AT KEEPING DRUNKS OFF THE STREET
FOR THEIR OWN WELFARE AND THAT OF OTHERS, IS NOT CHALLENGED ON THE
GROUND THAT IT INTERFERES UNCONSTITUTIONALLY WITH THE RIGHT TO FREQUENT
PUBLIC PLACES.  NO QUESTION IS RAISED ABOUT APPLYING THIS STATUTE TO
THE NONCHRONIC DRUNK, WHO HAS NO COMPULSION TO DRINK, WHO NEED NOT
DRINK TO EXCESS, AND WHO COULD HAVE ARRANGED TO DO HIS DRINKING IN
PRIVATE OR, IF HE BEGAN DRINKING IN PUBLIC, COULD HAVE REMOVED HIMSELF
AT AN APPROPRIATE POINT ON THE PATH TOWARD COMPLETE INEBRIATION. 

THE TRIAL COURT SAID THAT POWELL WAS A CHRONIC ALCOHOLIC WITH A
COMPULSION NOT ONLY TO DRINK TO EXCESS BUT ALSO TO FREQUENT PUBLIC
PLACES WHEN INTOXICATED.  NOTHING IN THE RECORD BEFORE THE TRIAL COURT
SUPPORTS THE LATTER CONCLUSION, WHICH IS CONTRARY TO COMMON SENSE AND
TO COMMON KNOWLEDGE.  /1/  THE SOBER CHRONIC ALCOHOLIC HAS NO
COMPULSION TO BE ON THE PUBLIC STREETS; MANY CHRONIC ALCOHOLICS DRIHK
AT HOME AND ARE NEVER SEEN DRUNK IN PUBLIC.  BEFORE AND AFTER TAKING
THE FIRST DRINK, AND UNTIL HE BECOMES SO DRUNK THAT HE LOSES THE POWER
TO KNOW WHERE HE IS OR TO DIRECT HIS MOVEMENTS, THE CHRONIC ALCOHOLIC
WITH A HOME OR FINANCIAL RESOURCES IS AS CAPABLE AS THE NONCHRONIC
DRINKER OF DOING HIS DRINKING IN PRIVATE, OF REMOVING HIMSLEF FROM
PUBLIC PLACES AND, SINCE HE KNOWS OR OURGHT TO KNOW THAT HE WILL BECOME
INTOXICATED, OF MAKING PLANS TO AVOID HIS BEING FOUND DRUNK IN PUBLIC. 
FOR THESE REASONS, I CANNOT SAY THAT THE CHRONIC ALCOHOLIC WHO PROVES
HIS DISEASE AND A COMPULSION TO DRINK IS SHIELDED FROM CONVICTION WHEN
HE HAS KNOWINGLY FAILED TO TAKE FEASIBLE PRECAUTIONS AGAINST COMMITTING
A CRIMINAL ACT, HERE THE ACT OF GOING TO OR REMAINING IN A PUBLIC
PLACE.  ON SUCH FACTS THE ALCOHOLIC IS LIKE A PERSON WITH SMALLPOX, WHO
COULD BE CONVICTED FOR BEING ON THE STREET BUT NOT FOR BEING ILL, OR,
LIKE THE EPILEPTIC, WHO COULD BE PUNISHED FOR DRIVING A CAR BUT NOT FOR
HIS DISEASE.  /2/ 

THE FACT REMAINS THAT SOME CHRONIC ALCOHOLICS MUST DRINK AND HENCE
MUST DRINK SOMEWHERE.  /3/  ALTHOUGH MANY CHRONICS HAVE HOMES, MANY
OTHERS DO NOT.  FOR ALL PRACTICAL PURPOSES THE PUBLIC STREETS MAY BE
HOME FOR THESE UNFORTUNATES, NOT BECAUSE THEIR DISEASE COMPELS THEM TO
BE THERE, BUT BECAUSE, DRUNK OR SOBER, THEY HAVE NO PLACE ELSE TO GO
AND NO PLACE ELSE TO BE WHEN THEY ARE DRINKING.  THIS IS MORE A
FUNCTION TO ECONOMIC STATION THAN OF DISEASE, ALTHOUGH THE DISEASE MAY
LEAD TO DESTITUTION AND PERPETUATE THAT CONDITION.  FOR SOME OF THESE
ALCOHOLICS I WOULD THINK A SHOWING COULD BE MADE THAT RESISTING
DRUNKENNESS IS IMPOSSIBLE AND THAT AVOIDING PUBLIC PLACES WHEN
INTOXICATED IS ALSO IMPOSSIBLE.  AS APPLIED TO THEM THIS STATUTE IS IN
EFFECT A LAW WHICH BANS A SINGLE ACT FOR WHICH THEY MAY NOT BE
CONVICTED UNDER THE EIGHTH AMENDMENT-- THE ACT OF GETTING DRUNK. 

IT IS ALSO POSSIBLE THAT THE CHRONIC ALCOHOLIC WHO BEGINS DRINKING
IN PRIVATE AT SOME POINT BECOMES SO DRUNK THAT HE LOSES THE POWER TO
CONTROL HIS MOVEMENTS AND FOR THAT REASON APPEARS IN PUBLIC.  THE
EIGHTH AMENDMENT MIGHT ALSO FORBID CONVICTION IN SUCH CIRCUMSTANCES,
BUT ONLY ON A RECORD SATISFACTORILY SHOWING THAT IT WAS NOT FEASIBLE
FOR HIM TO HAVE MADE ARRANGEMENTS TO PREVENT HIS BEING IN PUBLIC WHEN
DRUNK AND THAT HIS EXTREME DRUNKENNESS SUFFICIENTLY DEPRIVED HIM OF HIS
FACULTIES ON THE OCCASION IN ISSUE. 

THESE PREREQUISITES TO THE POSSIBLE INVOCATION OF THE EIGHTH
AMENDMENT ARE NOT SATISFIED ON THE RECORD BEFORE US.  /4/  WHETHER OR
NOT POWELL ESTABLISHED THAT HE COUDL NOT HAVE RESISTED BECOMING DRUNK
ON DECEMBER 19, 1966, NOTHING IN THE RECORD INDICATES THAT HE COULD NOT
HAVE DONE HIS DRINKING IN PRIVATE OR THAT HE WAS SO INEBRIATED AT THE
TIME THAT HE HAD LOST CONTROL OF HIS MOVEMENTS AND WANDERED INTO THE
PUBLIC STREET.  INDEED, THE EVIDENCE IN THE RECORD STRONGLY SUGGESTS
THAT POWELL COULD HAVE DRUNK AT HOME AND MADE PLANS WHILE SOBER TO
PREVENT ENDING UP IN A PUBLIC PLACE.  POWELL HAD A HOME AND WIFE, AND
IF THERE WERE REASONS WHY HE HAD TO DRINK IN PUBLIC OR BE DRUNK THERE,
THEY DO NOT APPEAR IN THE RECORD. 

ALSO, THE ONLY EVIDENCE BEARING ON POWE 11'S CONDITION AT THE TIME
OF HIS ARREST WAS THE TESTIMONY OF THE ARRESTING OFFICER THAT APPELLANT
STAGGERED, SMELLED OF ALCOHOL, AND WAS "VERY DRUNK."  POWELL TESTIFIED
THAT HE HAD NO CLEAR RECOLLECTION OF THE SITUATION AT THE TIME OF HIS
ARREST.  HIS TESTIMONY ABOUT HIS USUAL CONDITION WHEN DRUNK IS NO
SUBSTITUTE FOR EVIDENCE ABOUT HIS CONDITION AT THE TIME OF HIS ARREST. 
NEITHER IN THE MEDICAL TESTIMONY NOR ELSEWHERE IS THERE ANY INDICATION
THAT POWELL HAD REACHED SUCH A STATE OF INTOXICATION THAT HE HAD LOST
THE ABILITY TO COMPREHEND WHAT HE WAS DOING OR WHERE HE WAS.  FOR ALL
WE KNOW FROM THIS RECORD, POWELL AT THE TIME KNEW PRECISELY WHERE HE
WAS, RETAINED THE POWER TO STAY OFF OR LEAVE THE STREETS, AND SIMPLY
PREFERRED TO BE THERE RATHER THAN ELSEWHERE. 

IT IS UNNECESSARY TO PURSUE AT THIS POINT THE FURTHER DEFINITON OF
THE CIRCUMSTANCES OR THE STATE OF INTOXICATION WHICH MIGHT BAR
CONVICTION OF A CHRONIC ALCOHOLIC FOR BEING DRUNK IN A PUBLIC PLACE. 
FOR THE PURPOSES OF THIS CASE, IT IS NECESSARY TO SAY ONLY THAT POWELL
SHOWED NOTHING MORE THAN THAT HE WAS TO SOME DEGREE COMPELLED TO DRINK
AND THAT HE WAS DRUNK AT THE TIME OF HIS ARREST.  HE MADE NO SHOWING
THAT HE WAS UNABLE TO STAY OFF THE STREETS ON THE NIGHT IN QUESTION. 
/5/ 

BECAUSE POWELL DID NOT SHOW THAT HIS CONVICTION OFFENDED THE
CONSTITUTION, I CONCUR IN THE JUDGMENT AFFIRMING THE TRAVIS COUNTY
COURT. 

/1/  THE TRIAL COURT GAVE NO REASONS FOR ITS CONCLUSION THAT POWELL
APPEARED IN PUBLIC DUE TO "A COMPULSION SYMPTOMATIC OF THE DISEASE OF
CHRONIC ALCOHOLISM."  NO FACTS IN THE RECORD SUPPORT THAT CONCLUSION. 
THE TRIAL TRANSCRIPT STRONGLY SUGGESTS THAT THE TRIAL JUDGE MERELY
ADOPTED PROPOSED FINDINGS PUT BEFORE HIM BY POWELL'S COUNSEL.  THE FACT
THA; THOSE FINDINGS WERE OF NO LEGAL RELEVANCE IN THE TRIAL JUDGE'S
VIEW OF THE CASE IS VERY SIGNIFICANT FOR APPRAISING THE EXTENT TO WHICH
THEY REPRESENTED A WELL-CONSIDERED AND WELL-SUPPORTED JUDGMENT.  FOR
ALL THESE REASONS I DO NOT FEEL IMPELLED TO ACCEPT THIS FINDING, AND
CERTAINLY WOULD NOT REST A CONSTITUTIONAL ADJUDICATION UPON IT.     /2/
ANALYSIS OF THIS DIFFICULT CASE IS NOT ADVANCED BY PREOCCUPATION WITH
THE LABEL "CONDITION."  IN ROBINSON THE COURT DEALT WITH "A STATUTE
WHICH MAKES THE 'STATUS' OF NARCOTIC ADDICTION A CRIMINAL OFFENSE . . .
."  370 U.S.,AT 666.  BY PRECLUDING CRIMINAL CONVICTION FOR SUCH A
"STATUS" THE COURT WAS DEALING WITH A CONDITION BROUGHT ABOUT BY ACTS
REMOTE IN TIME FROM THE APPLICATION OF THE CRIMINAL SANCTIONS
CONTEMPLATED, A CONDITION WHICH WAS RELATIVELY PERMANENT IN DURATION,
AND A CONDITION OF GREAT MAGNITUDE AND SIGNIFICANCE IN TERMS OF HUMAN
BEHAVIOR AND VALUES.  ALTHOUGH THE SAME MAY BE SAID FOR THE "CONDITION"
OF BEING A CHRONIC ALCOHOLIC, IT CANNOT BE SAID FOR THE MERE TRANSITORY
STATE OF "BEING DRUNK IN PUBLIC."  "BEING" DRUNK IN PUBLIC IS NOT FAR
REMOVED IN TIME FROM THE ACTS OF "GETTING" DRUNK AND "GOING" INTO
PUBLIC, AND IT IS NOT NECESSARILY A STATE OF ANY GREAT DURATION.  AND,
AN ISOLATED INSTANCE OF "BEING"  DRUNK IN PUBLIC IS OF RELATIVELY
SLIGHT IMPORTANCE IN THE LIFE OF AN INDIVIDUAL AS COMPARED WITH THE
CONDITION OF BEING A CHRONIC ALCOHOLIC.  IF IT WERE NECESSARY TO
DISTINGUISH BETWEEN "ACTS" AND "CONDITIONS" FOR PURPOSES OF THE EIGHTH
AMENDMENT, I WOULD ADHERE TO THE CONCEPT OF "CONDITION" IMPLICIT IN THE
OPINION IN ROBINSON; I WOULD NOT TRIVIALIZE THAT CONCEPT BY DRAWING A
NONEXISTENT LINE BETWEEN THE MAN WHO APPEARS IN PUBLIC DRUNK AND THAT
SAME MAN FIVE MINUTES LATER WHO IS THEN "BEING" DRUNK IN PUBLIC.  THE
PROPER SUBJECT OF INQUIRY IS WHETHER VOLITIONAL ACTS BROUGHT ABOUT THE
"CONDITION" AND WHETHER THOSE ACTS ARE SUFFICIENTLY PROXIMATE TO THE
"CONDITION" FOR IT TO BE PERMISSIBLE TO IMPOSE PENAL SANCTIONS ON THE
"CONDITION." 

/3/  THE OPINION OF MR. JUSTICE MARSHALL MAKES CLEAR THE LIMITATIONS
OF OUR PRESENT KNWOLEDGE OF ALCOHOLISM AND THE DISAGREEMENTS AMONG
DOCTORS IN THEIR DESCRIPTION AND ANALYSIS OF THE DISEASE.  IT IS ALSO
TRUE THAT ON THE RECORD BEFORE US THERE IS SOME QUESTION WHETHER POWELL
POSSESSED THAT DEGREE OF COMPULSION WHICH ALONE WOULD SATISFY ONE OF
THE PREREQUISITES I DEEM ESSENTIAL TO ASSERTION OF AN EIGHTH AMENDMENT
DEFENSE.  IT IS NOWHERE DISPUTED, HOWEVER, THAT THERE ARE CHRONIC
ALCOHOLICS WHOSE NEED TO CONSUME ALCOHOL IN LARGE QUANTITIES IS SO
PERSISTENT AND SO INSISTENT THAT THEY ARE TRULY COMPELLED TO DRINK.  I
FIND IT UNNECESSARY TO ATTEMPT ON THIS RECORD TO DETERMINE WHETHER OR
NOT POWELL IS SUCH AN ALCOHOLIC, FOR IN MY VIEW HIS ATTEMPT TO CLAIM
THE EIGHTH AMENDMETN FAILS FOR OTHER REASONS. 

/4/  A HOLDING THAT A PERSON ESTABLISHING THE REQUISITE FACTS COULD
NOT, BECAUSE OF THE EIGHTH AMENDMENT, BE CRIMINALLY PUNISHED FOR
APPEARING IN PUBLIC WHILE DRUNK WOULD BE A NOVEL CONSTRUCTION OF THAT
AMENDMENT, BUT IT WOULD HARDLY HAVE RADICAL CONSEQUENCES.  IN THE FIRST
PLACE, WHEN AS HERE THE CRIME CHARGED WAS BEING DRUNK IN A PUBLIC
PLACE, ONLY THE COMPULSIVE CHRONIC ALCOHOLIC WOULD HAVE A DEFENSE TO
BOTH ELEMENTS OF THE CRIME-- FOR HIS DRUNKENNESS BECAUSE HIS DISEASE
COMPELLED HIM TO DRINK AND FOR BEING IN A PUBLIC PLACE BECAUSE THE
FORCE OF CIRCUMSTANCES OR EXCESSIVE INTOXICATION SUFFICIENTLY DEPRIVED
HIM OF HIS MENTAL AND PHYSICAL POWERS.  THE DRINKER WHO WAS NOT
COMPELLED TO DRINK, ON THE OTHER HAND, ALTHOUGH HE MIGHT BE AS POORLY
CIRCUMSTANCED, EQUALLY INTOXICATED, AND EQUALLY WITHOUT HIS PHYSICAL
POWERS AND COGNITIVE FACULTIES, COULD HAVE AVOIDED DRINKING IN THE
FIRST PLACE, COULD HAVE AVOIDED DRINKING TO EXCESS, AND NEED NOT HAVE
LOST THE POWER TO MANAGE HIS MOVEMENTS.  PERHAPS THE HEAVILY
INTOXICATED, COMPULSIVE ALCOHOLIC WHO COULD NOT HAVE ARRANGED TO AVOID
BEING IN PUBLIC PLACES MAY NOT, CONSISTENT WITH THE EIGHTH AMENDMENT,
BE CONVICTED FOR BEING DRUNK IN A PUBLIC PLACE.  HOWEVER, IT DOES NOT
NECESSARILY FOLLOW THAT IT WOULD BE UNCONSTITUTIONAL TO CONVICT HIM FOR
COMMITTING CRIMES INVOLVING MUCH GREATER RISK TO SOCIETY. 

OUTSIDE THE AREA OF ALCOHOLISM SUCH A HOLDING WOULD NOT HAVE A WIDE
IMPACT.  CONCERNING DRUGS, SUCH A CONSTRUCTION OF THE EIGHTH AMENDMENT
WOULD BAR CONVICTION ONLY WHERE THE DRUG IS ADDICTIVE AND THEN ONLY FOR
ACTS WHICH ARE A NECESSARY PART OF ADDICTION, SUCH AS SIMPLE USE. 
BEYOND THAT IT WOULD PRECLUDE PUNISHMENT ONLY WHEN THE ADDICTION TO OR
THE USE OF DRUGS CAUSED SUFFICIENT LOSS OF PHYSICAL AND MENTAL
FACULTIES.  THIS DOCTRINE WOULD NOT BAR CONVICTION OF A HEROIN ADDICT
FOR BEING UNDER THE INFLUENCE OF HEROIN IN A PUBLIC PLACE (ALTHOUGH
OTHER CONSTITUTIONAL CONCEPTS MIGHT BE RELEVANT TO SUCH A CONVICTION),
OR FOR COMMITTING OTHER CRIMINAL ACTS. 

/5/  I DO NOT QUESTION THE POWER OF THE STATE TO REMOVE A HELPLESSLY
INTOXICATED PERSON FROM A PUBLIC STREET, ALTHOUGH AGAINST HIS WILL, AND
TO HOLD HIM UNTIL HE HAS REGAINED HIS POWERS.  THE PERSON'S OWN SAFETY
AND THE PUBLIC INTEREST REQUIRE THIS MUCH.  A STATUTE SUCH AS THE ONE
CHALLENGED IN THIS CASE IS CONSTITUTIONAL INSOFAR AS IT AUTHORIZES A
POLICE OFFICER TO ARREST ANY SERIOUSLY INTOXICATED PERSON WHEN HE IS
ENCOUNTERED IN A PUBLIC PLACE.  WHETHER SUCH A PERSON MAY BE CHARGED
AND CONVICTED FOR VIOLATING THE STATUTE WILL DEPEND UPON WHETHER HE IS
ENTITLED TO THE PROTECTION OF THE EIGHTH AMENDMENT. 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, AND MR. JUSTICE STEWART JOIN, DISSENTING. 

APPELLANT WAS CHARGED WITH BEING FOUND IN A STATE OF INTOXICATION IN
A PUBLIC PLACE.  THIS IS A VIOLATION OF ARTICLE 477 OF THE TEXAS PENAL
CODE, WHICH READS AS FOLLOWS: 

     "WHOEVER SHALL GET DRUNK OR BE FOUND IN A STATE OF
INTOXICATION

  IN ANY PUBLIC PLACE, OR AT ANY PRIVATE HOUSE EXCEPT HIS OWN,

  SHALL BE FINED NOT EXCEEDING ONE HUNDRED DOLLARS." 

APPELLANT WAS TRIED IN THE CORPORATION COURT OF AUSTIN, TEXAS.  HE WAS
FOUND GUILTY AND FINED $20.  HE APPEALED TO THE COUNTY COURT AT LAW NO.
1 OF TRAVIS COUNTY, TEXAS, WHERE A TRIAL DE NOVO WAS HELD.  APPELLANT
WAS DEFENDED BY COUNSEL WHO URGED THAT APPELLANT WAS "AFFLICTED WITH
THE DISEASE OF CHRONIC ALCOHOLISM WHICH HAS DESTROYED THE POWER OF HIS
WILL TO RESIST THE CONSTANT, EXCESSIVE CONSUMPTION OF ALCOHOL; HIS
APPEARANCE IN PUBLIC IN THAT CONDITION IS NOT OF HIS OWN VOLITION, BUT
A COMPULSION SYMPTOMATIC OF THE DISEASE OF CHRONIC ALCOHOLISM." 
COUNSEL CONTENDED THAT TO PENALIZE APPELLANT FOR PUBLIC INTOXICATION
WOULD BE TO INFLICT UPON HIM CRUEL AND UNUSUAL PUNISHMENT, IN VIOLATIO,
OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION. 

AT THE TRIAL IN THE COUNTY COURT, THE ARRESTING OFFICER TESTIFIED
THAT HE HAD OBSERVED APPELLANT IN THE 2000 BLOCK OF HAMILTON STREET IN
AUSTIN; THAT APPELLANT STAGGERED WHEN HE WALKED; THAT HIS SPEECH WAS
SLURRED; AND THAT HE SMELLED STRONGLY OF ALCOHOL.  HE WAS NOT LOUD OR
BOISTEROUS; HE DID NOT RESIST ARREST; HE WAS COOPERATIVE WITH THE
OFFICER. 

THE DEFENSE ESTABLISHED THAT APPELLANT HAD BEEN CONVICTED OF PUBLIC
INTOXICATION APPROXIMATELY 100 TIMES SINCE 1949, PRIMARILY IN TRAVIS
COUNTY, TEXAS.  THE CIRCUMSTANCES WERE ALWAYS THE SAME:  THE "SUBJECT
SMELLED STRONGLY OF ALCOHOLIC BEVERAGES, STAGGERED WHEN WALKING, SPEECH
INCOHERENT."  AT THE END OF THE PROCEEDINGS, HE WOULD BE FINED:  "DOWN
IN BASTROP COUNTY, IT'S $25.00 DOWN THERE, AND IT'S $20.00 UP HERE (IN
TRAVIS COUNTY)."  APPELLANT WAS USUALLY UNABLE TO PAY THE FINES IMPOSED
FOR THESE OFFENSES, AND THEREFORE USUALLY HAS BEEN OBLIGED TO WORK THE
FINES OFF IN JAIL.  THE STATUTORY RATE FOR WORKING OFF SUCH FINES IN
TEXAS IS ONE DAY IN JAIL FOR EACH $5 OF FINE UNPAID.  TEXAS CODE CRIM.
PROC., ART. 43.09. 

APPELLANT TOOK THE STAND.  HE TESTIFIED THAT HE WORKS AT A TAVERN
SHINING SHOES.  HE MAKES ABOUT $12 A WEEK WHICH HE USES TO BUY WINE. 
HE HAS A FAMILY, BUT HE DOES NOT CONTRIBUTE TO ITS SUPPORT.  HE DRINKS
WINE EVERY DAY.  HE GETS DRUNK ABOUT ONCE A WEEK.  WHEN HE GETS DRUNK,
HE USUALLY GOES TO SLEEP, "MOSTLY" IN PUBLIC PLACES SUCH AS THE
SIDEWALK.  HE DOES NOT DISTURB THE PEACE OR INTERFERE WITH OTHERS. 

THE DEFENSE CALLED AS A WITNESS DR. DAVID WADE, A FELLOW OF THE
AMERICAN MEDICAL ASSOCIATION AND A FORMER PRESIDENT OF THE TEXAS
MEDICAL ASSOCIATION.  DR. WADE IS A QUALIFIED DOCTOR OF MEDICINE, DULY
CERTIFICATED IN PSYCHIATRY.  HE HAS BEEN ENGAGED IN THE PRACTICE OF
PSYCHIATRY FOR MORE THAN 20 YEARS.  DURING ALL OF THAT TIME HE HAS BEEN
ESPECIALLY INTERESTED IN THE PROBLEM OF ALCOHOLISM.  HE HAS TREATED
ALCOHOLICS; LECTURED AND WRITTEN ON THE SUBJECT; AND HAS OBSERVED THE
WORK OF VARIOUS INSTITUTIONS IN TREATING ALCOHOLISM.  DR. WADE
TESTIFIED THAT HE HAD OBSERVED AND INTERVIEWED THE APPELLANT.  HE SAID
THAT APPELLANT HAS A HISTORY OF EXCESSIVE DRINKING DATING BACK TO HIS
EARLY YEARS; THAT APPELLANT DRINKS ONLY WINE AND BEER; THAT "HE RARELY
PASSES A WEEK WITHOUT GOING ON AN ALCOHOLIC BINGE"; THAT "HIS
CONSUMPTION OF ALCOHOL IS LIMITED ONLY BY HIS FINANCES, AND WHEN HE IS
BROKE, HE MAKES AN EFFORT TO SECURE ALCOHOL BY GETTING HIS FRIENDS TO
BUY ALCOHOL FOR HIM"; THAT HE BUYS A "FIFTY CENT BOTTLE" OF WINE,
ALWAYS WITH THE THOUGHT THAT THIS IS ALL HE WILL DRINK; BUT THAT HE
ENDS BY DRINKING ALL HE CAN BUY UNTIL HE "IS . . . PASSED OUT IN SOME
JOINT OR OUT ON THE SIDEWALK."  ACCORDING TO DR. WADE, APPELLANT "HAS
NEVER ENGAGED IN ANY ACTIVITY THAT IS DESTRUCTIVE TO SOCIETY OR TO
ANYONE EXCEPT HIMSELF."  HE HAS NEVER RECEIVED MEDICAL OR PSYCHIATRIC
TREATMENT FOR HIS DRINKING PROBLEM.  HE HAS NEVER BEEN REFERRED TO
ALCOHOLICS ANONYMOUS, A VOLUNTARY ASSOCIATION FOR HELPING ALCOHOLICS,
NOR HAS HE EVER BEEN SENT TO THE STATE HOSPITAL. 

DR. WADE'S CONCLUSION WAS THAT "LEROY POWELL IS AN ALCOHOLIC AND
THAT HIS ALCOHOLISM IS IN A CHRONIC STAGE."  ALTHOUGH THE DOCTOR
RESPONDED AFFIRMATIVELY TO A QUESTION AS TO WHETHER THE APPELLANT'S
TAKING THE FIRST DRINK ON ANY GIVEN OCCASION IS "A VOLUNTARY EXERCISE
OF WILL," HIS TESTIMONY WAS THAT "WE MUST TAKE INTO ACCOUNT" THE FACT
THAT CHRONIC ALCOHOLICS HAVE A "COMPULSION" TO DRINK WHICH "WHILE NOT
COMPLETELY OVERPOWERING, IS A VERY STRONG INFLUENCE, AN EXCEEDINGLY
STRONG INFLUENCE," AND THAT THIS COMPULSION IS COUPLED WITH THE "FIRM
BELIEF IN THEIR MIND THAT THEY ARE GOING TO BE ABLE TO HANDLE IT FROM
NOW ON."  IT WAS ALSO DR. WADE'S OPINION THAT APPELLANT "HAS AN
UNCONTROLLABLE COMPULSION TO DRINK" AND THAT HE "DOES NOT HAVE THE
WILLPOWER (TO RESIST THE CONSTANT EXCESSIVE CONSUMPTION OF ALCOHOL OR
TO AVOID APPEARING IN PUBLIC WHEN INTOXICATED) NOR HAS HE BEEN GIVEN
MEDICAL TREATMENT TO ENABLE HIM TO DEVELOP THIS WILLPOWER." 

THE TRIAL JUDGE IN THE COUNTY COURT, SITTING WITHOUT A JURY, MADE
THE FOLLOWING FINDINGS OF FACT:

    "(1) THAT CHRONIC ALCOHOLISM IS A DISEASE WHICH DESTROYS THE

  AFFLICTED PERSON'S WILL POWER TO RESIST THE CONSTANT, EXCESSIVE

  CONSUMPTION OF ALCOHOL. 

      "(2) THAT A CHRONIC ALCOHOLIC DOES NOT APPEAR IN PUBLIC BY
HIS

  OWN VOLITION BUT UNDER A COMPULSION SYMPTOMATIC OF THE DISEASE OF

  CHRONIC ALCOHOLISM. 

     "(3) THAT LEROY POWELL, DEFENDANT HEREIN, IS A CHRONIC

  ALCOHOLIC WHO IS AFFLICTED WITH THE DISEASE OF CHRONIC

  ALCOHOLISM."  /1/

THE COURT THEN REJECTED APPELLANT'S CONSTITUTIONAL DEFENSE, ENTERING
THE FOLLOWING CONCLUSION OF LAW: 

     "(1) THE FACT THAT A PERSON IS A CHRONIC ALCOHOLIC AFFLICTED

WITH THE DISEASE OF CHRONIC ALCOHOLISM, IS NOT A DEFENSE TO BEING

  CHARGED WITH THE OFFENSE OF GETTING DRUNK OR BEING FOUND IN A

  STATE OF INTOXICATION IN ANY PUBLIC PLACE UNDER ART. 477 OF THE

  TEXAS PENAL CODE." 

THE COURT FOUND APPELLANT GUILTY AS CHARGED AND INCREASED HIS FINE TO
$50.  APPELLANT DID NOT HAVE THE RIGHT TO APPEAL FURTHER WITHIN THE
TEXAS JUDICIAL SYSTEM.  TEX. CODE CRIM. PROC., ART. 4.03.  HE FILED A
JURISDICTIONAL STATEMENT IN THIS COURT. 

        I. 

THE ISSUE POSED IN THIS CASE IS A NARROW ONE.  THERE IS NO CHALLENGE
HERE TO THE VALIDITY OF PUBLIC INTOXICATION STATUTES IN GENERAL OR TO
THE TEXAS PUBLIC INTOXICATION STATUTE IN PARTICULAR.  THIS CASE DOES
NOT CONCERN THE INFLICTION OF PUNISHMENT UPON THE "SOCIAL" DRINKER-- OR
UPON ANY ONE OTHER THAN A "CHRONIC ALCOHOLIC" WHO, AS THE TRIER OF FACT
HERE FOUND, CANNOT "RESIST THE CONSTANT, EXCESSIVE CONSUMPTION OF
ALCOHOL."  NOR DOES IT RELATE TO ANY OFFENSE OTHER THAN THE CRIME OF
PUBLIC INTOXICATION. 

THE SOLE QUESTION PRESENTED IS WHETHER A CRIMINAL PENALTY MAY BE
IMPOSED UPON A PERSON SUFFERING THE DISEASE OF "CHRONIC ALCOHOLISM" FOR
A CONDITION-- BEING "IN A STATE OF INTOXICATION, IN PUBLIC-- WHICH IS A
CHARACTERISTIC PART OF THE PATTERN OF HIS DISEASE AND WHICH, THE TRIAL
COURT FOUND, WAS NOT THE CONSEQUENCE OF APPELLANT'S VOLITION BUT OF "A
COMPULSION SYMPTOMATIC OF THE DISEASE OF CHRONIC ALCOHOLISM."  WE MUST
CONSIDER WHETHER THE EIGHTH AMENDMENT, MADE APPLICABLE TO THE STATES
THROUGH THE FOURTEENTH AMENDMENT, PROHIBITS THE IMPOSITION OF THIS
PENALTY IN THESE RATHER SPECIAL CIRCUMSTANCES AS "CRUEL AND UNUSUAL
PUNISHMENT."  THIS CASE DOES NOT RAISE ANY QUESTION AS TO THE RIGHT OF
THE POLICE TO STOP AND DETAIN THOSE WHO ARE INTOXICATED IN PUBLIC,
WHETHER AS A RESULT OF THE DISEASE OR OTHERWISE; OR AS TO THE STATE'S
POWER TO COMMIT CHRONIC ALCOHOLICS FOR TREATMENT.  NOR DOES IT CONCERN
THE RESPONSIBILITY OF AN ALCOHOLIC FOR CRIMINAL ACTS.  WE DEAL HERE
WITH THE MERE CONDITION OF BEING INTOXICATED IN PUBLIC.  /2/

        II. 

AS I SHALL DISCUSS, CONSIDERATION OF THE EIGHTH AMENDMENT ISSUE IN
THIS CASE REQUIRES AN UNDERSTANDING OF "THE DISEASE OF CHRONIC
ALCOHOLISM" WITH WHICH, AS THE TRIAL COURT FOUND, APPELLANT IS
AFFLICTED, WHICH HAS DESTROYED HIS "WILL POWER TO RESIST THE CONSTANT,
EXCESSIVE CONSUMPTION OF ALCOHOL," AND WHICH LEADS HIM TO "APPEAR IN
PUBLIC (NOT) BY HIS OWN VOLITION BUT UNDER A COMPULSION SYMPTOMATIC OF
THE DISEASE OF CHRONIC ALCOHOLISM."  IT IS TRUE, OF COURSE, THAT THERE
IS A GREAT DEAL THAT REMAINS TO BE DISCOVERED ABOUT CHRONIC
ALCOHOLISM.  ALTHOUGH MANY ASPECTS OF THE DISEASE REMAIN OBSCURE, THERE
ARE SOME HARD FACTS-- MEDICAL AND, ESPECIALLY, LEGAL FACTS-- THAT ARE
ACCESSIBLE TO US AND THAT PROVIDE A CONTEXT IN WHICH THE INSTANT CASE
MAY BE ANALYZED.  WE ARE SIMILARLY WOEFULLY DEFICIENT IN OUR MEDICAL,
DIAGNOSTIC, AND THERAPEUTIC KNOWLEDGE OF MENTAL DISEASE AND THE PROBLEM
OF INSANITY; BUT FEW WOULD URGE THAT, BECAUSE OF THIS, WE SHOULD
TOTALLY REJECT THE LEGAL SIGNIFICANCE OF WHAT WE DO KNOW ABOUT THESE
PHENOMENA. 

ALCOHOLISM /3/  IS A MAJOR PROBLEM IN THE UNITED STATES.  /4/  IN
1956 THE AMERICAN MEDICAL ASSOCIATION FOR THE FIRST TIME DESIGNATED
ALCOHOLISM AS A MAJOR MEDICAL PROBLEM AND URGED THAT ALCOHOLICS BE
ADMITTED TO GENERAL HOSPITALS FOR CARE.  /5/  THIS SIGNIFICANT
DEVELOPMENT MARKED THE ACCEPTANCE AMONG THE MEDICAL PROFESSION OF THE
"DISEASE CONCEPT OF ALCOHOLISM."  /6/  ALTHOUGH THERE IS SOME PROBLEM
IN DEFINING THE CONCEPT, ITS CORE MEANING, AS AGREED BY AUTHORITIES, IS
THAT ALCOHOLISM IS CAUSED AND MAINTAINED BY SOMETHING OTHER THAN THE
MORAL FAULT OF THE ALCOHOLIC, SOMETHING THAT, TO A GREATER OR LESSER
EXTENT DEPENDING UPON THE PSYSIOLOGICAL OR PSYCHOLOGICAL MAKEUP AND
HISTORY OF THE INDIVIDUAL, CANNOT BE CONTROLLED BY HIM.  TODAY MOST
ALCOHOLOGISTS AND QUALIFIED MEMBERS OF THE MEDICAL PROFESSION RECOGNIZE
THE VALIDITY OF THIS CONCEPT.  RECENT YEARS HAVE SEEN AN
INTENSIFICATION OF MEDICAL INTEREST IN THE SUBJECT.  /7/  MEDICAL
GROUPS HAVE BECOME ACTIVE IN EDUCATING THE PUBLIC, MEDICAL SCHOOLS, AND
PHYSICIANS IN THE ETIOLOGY, DIAGNOSIS, AND TREATMENT OF ALCOHOLISM. 
/8/ 

AUTHORITIES HAVE RECOGNIZED THAT A NUMBER OF FACTORS MAY CONTRIBUTE
TO ALCOHOLISM.  SOME STUDIES HAVE POINTED TO PHYSIOLOGICAL INFLUENCES,
SUCH AS VITAMIN DEFICIENCY, HORMONE IMBALANCE, ABNORMAL METABOLISM, AND
HEREDITARY PROCLIVITY.  OTHER RESEARCHERS HAVE FOUND MORE CONVINCING A
PSYCHOLOGICAL APPROACH, EMPHASIZING EARLY ENVIRONMENT AND UNDERLYING
CONFLICTS AND TENSIONS.  NUMEROUS.STUDIES HAVE INDICATED THE INFLUENCE
OF SOCIOCULTURAL FACTORS.  IT HAS BEEN SHOWN, FOR EXAMPLE, THAT THE
INCIDENCE OF ALCOHOLISM AMONG CERTAIN ETHNIC GROUPS IS FAR HIGHER THAN
AMONG OTHERS.  /9/ 

THE MANIFESTATIONS OF ALCOHOLISM ARE REASONABLY WELL IDENTIFIED. 
THE LATE E. M. JELLINEK, AN EMINENT ALCOHOLOGIST, HAS DESCRIBED FIVE
DISCRETE TYPES COMMONLY FOUND AMONG AMERICAN ALCOHOLICS.  /10/  IT IS
WELL ESTABLISHED THAT ALCOHOL MAY BE HABITUATIVE AND "CAN BE PHYSICALLY
ADDICTING."  /11/  IT HAS BEEN SAID THAT "THE MAIN POINT FOR THE
NONPROFESSIONAL IS THAT ALCOHOLISM IS NOT WITHIN THE CONTROL OF THE
PERSON INVOLVED.  HE IS NOT WILLFULLY DRINKING."  /12/ 

ALTHOUGH THE TREATMENT OF ALCOHOLICS HAS BEEN SUCCESFUL IN MANY
CASES, /13/  PHYSICIANS HAVE BEEN UNALBE TO DISCOVER ANY SINGLE
TREATMENT METHOD THAT WILL INVARIABLY PRODUCE SATISFACTORY RESULTS.  A
RECENT STUDY OF AVAILABLE TREATMENT FACILITIES CONCLUDES AS FOLLOWS:
/14/ 

   "ALTHOUGH NUMEROUS KINDS OF THERAPY AND INTERVENTION APPEAR TO

  HAVE BEEN EFFECTIVE WITH VARIOUS KINDS OF PROBLEM DRINKERS, THE

  PROCESS OF MATCHING PATIENT AND TREATMENT METHOD IS NOT YET

  HIGHLY DEVELOPED.  THERE IS AN URGENT NEED FOR CONTINUED

  EXPERIMENTATION, FOR MODIFYING AND IMPROVING EXISTING TREATMENT

  METHODS, FOR DEVELOPING NEW ONES, AND FOR CAREFUL AND

  WELL-DESIGNED EVALUATIVE STUDIES.  MOST OF THE FACILITIES THAT

  PROVIDE SERVICES FOR ALCOHOLICS HAVE MADE LITTLE, IF ANY, ATTEMPT

  TO DETERMINE THE EFFECTIVENESS OF THE TOTAL PROGRAM OR OF ITS

  COMPONENTS." 

PRESENT SERVICES FOR ALCOHOLICS INCLUDE STATE AND GENERAL HOSPITALS,
SEPARATE STATE ALCOHOLISM PROGRAMS, OUTPATIENT CLINICS, COMMUNITY
HEALTH CENTERS, GENERAL PRACTITIONERS, AND PRIVATE PSYCHIATRIC
FACILITIES.  /15/  SELF-HELP ORGANIZATIONS, SUCH AS ALCOHOLICS
ANONYMOUS, ALSO AID IN TREATMENT AND REHABILITATION.  /16/ 

THE CONSEQUENCES OF TREATING ALCOHOLICS, UNDER THE PUBLIC
INTOXICATION LAWS, AS CRIMINALS CAN BE IDENTIFIED WITH MORE
SPECIFICITY.  PUBLIC DRUNKENNESS IS PUNISHED AS A CRIME, UNDER A
VARIETY OF LAWS AND ORDINANCES, IN EVERY STATE OF THE UNION.  /17/  THE
TASK FORCE ON DRUNKENNESS OF THE PRESIDENT'S COMMISSION ON LAW
ENFORCEMENT AND ADMINISTRATION OF JUSTICE HAS REPORTED THAT "(TWO
MILLION ARRESTS IN 1965-- ONE OF EVERY THREE ARRESTS IN AMERICA-- WERE
FOR THE OFFENSE OF PUBLIC DRUNKENNESS."  /18/  DRUNKENNESS OFFENDERS
MAKE UP A LARGE PERCENTAGE OF THE POPULATION IN SHORT-TERM PENAL
INSTITUTIONS.  /19/  THEIR ARREST AND PROCESSING PLACE A TREMENDOUS
BURDEN UPON THE POLICE, WHO ARE CALLED UPON TO SPEND A LARGE AMOUNT OF
TIME IN ARRESTING FOR PUBLIC INTOXICATION AND IN APPEARING AT TRIALS
FOR PUBLIC INTOXICATION, AND UPON THE ENTIRE CRIMINAL PROCESS.  /20/ 

IT IS NOT KNOWN HOW MANY DRUNKENNESS OFFENDERS ARE CHRONIC
ALCOHOLICS, BUT "(THERE IS STRONG EVIDENCE . . . THAT A LARGE NUMBER OF
THOSE WHO ARE ARRESTED HAVE A LENGTHY HISTORY OF PRIOR DRUNKENNESS
ARRESTS."  /21/  "THERE ARE INSTANCES OF THE SAME PERSON BEING ARRESTED
AS MANY AS FORTY TIMES IN A SINGLE YEAR ON CHARGES OF DRUNKENNESS, AND
EVERY LARGE URBAN CENTER CAN POINT TO CASES OF INDIVIDUALS APPEARING
BEFORE THE COURTS ON SUCH CHARGES 125, 150, OR EVEN 200 TIMES IN THE
COURSE OF A SOMEWHAT LONGER PERIOD."  /22/ 

IT IS ENTIRELY CLEAR THAT THE JAILING OF CHRONIC ALCOHOLICS IS
PUNISHMENT.  IT IS NOT DEFENDED AS THERAPEUTIC, NOR IS THERE ANY BASIS
FOR CLAIMING THAT IT IS THERAPEUTIC (OR INDEED A DETERRENT).  THE
ALCOHOLIC OFFENDER IS CAUGHT IN A "REVOLVING DOOR"-- LEADING FROM
ARREST ON THE STREET THROUGH A BRIEF, UNPROFITABLE SOJOURN IN JAIL,
BACK TO THE STREET AND, EVENTUALLY, ANOTHER ARREST.  /23/  THE JAILS,
OVERCROWDED AND PUT TO A USE FOR WHICH THEY ARE NOT SUITABLE, HAVE A
DESTRUCTIVE EFFECT UPON ALCOHOLIC INMATES.  /24/ 

FINALLY, MOST COMMENTATORS, AS WELL AS EXPERIENCED JUDGES, /25/  ARE
IN AGREEMENT THAT "THERE IS PROBABLY NO DREARIER EXAMPLE OF THE
FUTILITY OF USING PENAL SANCTIONS TO SOLVE A PSYCHIATRIC PROBELM THAN
THE ENFORCEMENT OF THE LAWS AGAINST DRUNKENNESS."  /26/ 

    "IF ALL OF THIS EFFORT, ALL OF THIS INVESTMENT OF TIME AND

  MONEY, WERE PRODUCING CONSTRUCTIVE RESULTS, THEN WE MIGHT FIND

  SATISFACTION IN THE SITUATION DESPITE ITS COSTS.  BUT THE FACT IS

  THAT THIS ACTIVITY ACCOMPLISHES LITTLE THAT IS FUNDAMENTAL.  NO

  ONE CAN SERIOUSLY SUGGEST THAT THE THREAT OF FINES AND JAIL

  SENTENCES ACTUALLY DETERS HABITUAL DRUNKENNESS OR ALCOHOLIC

  ADDICTION . . . . NOR, DESPITE THE HEROIC EFFORTS BEING MADE IN A

  FEW LOCALITIES, IS THERE MUCH REASON TO SUPPOSE THAT ANY VERY

  EFFECTIVE MEASURES OF CURE AND THERAPY CAN OR WILL BE

  ADMINISTERED IN THE JAILS.  BUT THE WEARY PROCESS CONTINUES, TO

THE DETRIMENT OF THE TOTAL PERFORMANCE OF THE LAW-ENFORCEMENT

  FUNCTION."  /27/

        III. 

IT BEARS EMPHASIS THAT THESE DATA PROVIDE ONLY A CONTEXT FOR
CONSIDERATION OF THE INSTANT CASE.  THEY SHOULD NOT DICTATE OUR
CONCLUSION.  THE QUESTIONS FOR THIS COURT ARE NOT SETTLED BY REFERENCE
TO MEDICINE OR PENOLOGY.  OUR TASK IS TO DETERMINE WHETHER THE
PRINCIPLES EMBODIED IN THE CONSTITUTION OF THE UNITED STATES PLACE ANY
LIMITATIONS UPON THE CIRCUMSTANCES UNDER WHICH PUNISHMENT MAY BE
INFLICTED, AND, IF SO, WHETHER, IN THE CASE NOW BEFORE US, THOSE
PRINCIPLES PRECLUDE THE IMPOSITION OF SUCH PUNISHMENT. 

IT IS SETTLED THAT THE FEDERAL CONSTITUTION PLACES SOME SUBSTANTIVE
LIMITATION UPON THE POWER OF STATE LEGISLATURES TO DEFINE CRIMES FOR
WHICH THE IMPOSITION OF PUNISHMENT IS ORDERED.  IN ROBINSON V.
CALIFORNIA, 370 U.S. 660 (1962), THE COURT CONSIDERED A CONVICTION
UNDER A CALIFORNIA STATUTE MAKING IT A CRIMINAL OFFENSE FOR A PERSON TO
"BE ADDICTED TO THE USE OF NARCOTICS."  AT ROBINSON'S TRIAL, IT WAS
DEVELOPED THAT THE DEFENDANT HAD BEEN A USER OF NARCOTICS.  THE TRIAL
COURT INSTRUCTED THE JURY THAT "(TO BE ADDICTED TO THE USE OF NARCOTICS
IS SAID TO BE A STATUS OR CONDITION AND NOT AN ACT.  IT IS A CONTINUING
OFFENSE AND 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."  ID.,
AT 662-663. 

THIS COURT REVERSED ROBINSON'S CONVICTION ON THE GROUND THAT
PUNISHMENT UNDER THE LAW IN QUESTION WAS CRUEL AND UNUSUAL, IN
VIOLATION OF THE EIGHTH AMENDMENT OF THE CONSTITUTION AS APPLIED TO THE
STATES THROUGH THE FOURTEENTH AMENDMENT.  THE COURT NOTED THAT NARCOTIC
ADDICTION IS CONSIDERED TO BE AN ILLNESS AND THAT CALIFORNIA HAD
RECOGNIZED IT AS SUCH.  IT HELD THAT THE STATE COULD NOT MAKE IT A
CRIME FOR A PERSON TO BE ILL.  /28/  ALTHOUGH ROBINSON HAD BEEN
SENTENCED TO ONLY 90 DAYS IN PRISON FOR HIS OFFENSE, IT WAS BEYOND THE
POWER OF THE STATE TO PRESCRIBE SUCH PUNISHMENT.  AS MR. JUSTICE
STEWART, SPEAKING FOR THE COURT, SAID:  "(EVEN ONE DAY IN PRISON WOULD
BE A CRUEL AND UNUSUAL PUNISHMENT FOR THE 'CRIME' OF HAVING A COMMON
COLD."  370 U.S.,AT 667. 

ROBINSON STANDS UPON A PRINCIPLE WHICH, DESPITE ITS SUBTLETY, MUST
BE SIMPLY STATED AND RESPECTFULLY APPLIED BECAUSE IT IS THE FOUNDATION
OF INDIVIDUAL LIBERTY AND THE CORNERSTONE OF THE RELATIONS BETWEEN A
CIVILIZED STATE AND ITS CITIZENS:  CRIMINAL PENALTIES MAY NOT BE
INFLICTED UPON A PERSON FOR BEING IN A CONDITION HE IS POWERLESS TO
CHANGE.  IN ALL PROBABILITY, ROBINSON AT SOME TIME BEFORE HIS
CONVICTION ELECTED TO TAKE NARCOTICS.  BUT THE CRIME AS DEFINED DID NOT
PUNISH THIS CONDUCT.  /29/  THE STATUTE IMPOSED A PENALTY FOR THE
OFFENSE OF "ADDICTION"-- A CONDITION WHICH ROBINSON COULD NOT CONTROL. 
ONCE ROBINSON HAD BECOME AN ADDICT, HE WAS UTTERLY POWERLESS TO AVOID
CRIMINAL GUILT.  HE WAS POWERLESS TO CHOOSE NOT TO VIOLATE THE LAW. 

IN THE PRESENT CASE, APPELLANT IS CHARGED WITH A CRIME COMPOSED OF
TWO ELEMENTS-- BEING INTOXICATED AND BEING FOUND IN A PUBLIC WHILE IN
THAT CONDITION.  THE CRIME, SO DEFINED, DIFFERS FROM THAT IN ROBINSON. 
THE STATUTE COVERS MORE THAN A MERE STATUS.  /30/  BUT THE ESSENTIAL
CONSTITUAIONAL DEFECT HERE IS THE SAME AS IN ROBINSON, FOR IN BOTH
CASES THE PARTICULAR DEFENDANT WAS ACCUSED OF BEING IN A CONDITION
WHICH HE HAD NO CAPACITY TO CHANGE OR AVOID.  THE TRIAL JUDGE SITTING
AS TRIER OF FACT FOUND, UPON THE MEDICAL AND OTHER RELEVANT TESTIMONY,
THAT POWELL IS A "CHRONIC ALCOHOLIC."  HE DEFINED APPELLANT'S "CHRONIC
ALCOHOLISM" AS "A DISEASE WHICH DESTROYS THE AFFLICTED PERSON'S WILL
POWER TO RESIST THE CONSTANT, EXCESSIVE CONSUMPTION OF ALCOHOL."  HE
ALSO FOUND THAT "A CHRONIC ALCOHOLIC DOES NOT APPEAR IN PUBLIC BY HIS
OWN VOLITION BUT UNDER A COMPULSION SYMPTOMATIC OF THE DISEASE OF
CHRONIC ALCOHOLISM."  I READ THESE FINDINGS TO MEAN THAT APPELLANT WAS
POWERLESS TO AVOID DRINDING; THAT HAVING TAKEN HIS FIRST DRINK, HE HAD
"AN UNCONSTROLLABLE COMPULSION TO DRINK" TO THE POINT OF INTOXICATION;
AND THAT, ONCE INTOXICATED, HE COULD NOT PREVENT HIMSELF FROM APPEARING
IN PUBLIC PLACES.  /31/ 

ARTICLE 477 OF THE TEXAS PENAL CODE IS SPECIFICALLY DIRECTED TO THE
ACCUSED'S PRESENCE WHILE IN A STATE OF INTOXICATION, "IN ANY PUBLIC
PLACE, OR AT ANY PRIVATE HOUSE EXCEPT HIS OWN."  THIS IS THE ESSENCE OF
THE CRIME.  ORDINARILY WHEN THE STATE PROVES SUCH PRESENCE IN A STATE
OF INTOXICATION, THIS WILL BE SUFFICIENT FOR CONVICTION, AND THE
PUNISHMENT PRESCRIBED BY THE STATE MAY, OF COURSE, BE VALIDLY IMPOSED. 
BUT HERE THE FINDINGS OF THE TRIAL JUDGE CAL INTO PLAY THE PRINCIPLE
THAT A PERSON MAY NOT BE PUNISHED IF THE CONDITION ESSENTIAL TO
CONSTITUTE THE DEFINED CRIME IS PART OF THE PATTERN OF HIS DISEASE AND
IS OCCASIONED BY A COMPULSIO, SYMPTOMATIC OF THE DISEASE.  THIS
PRINCIPLE, NARROW IN SCOPE AND APPLICABILITY, IS IMPLEMENTED BY THE
EIGHTH AMENDMENT'S PROHIBITION OF "CRUEL AND UNUSUAL PUNISHMENT,"  AS
WE CONSTRUED THAT COMMAND IN ROBINSON.  IT IS TRUE THAT THE COMMAND OF
THE EIGHTH AMENDMENT AND ITS ANTECEDENT PROVISION IN THE BILL OF RIGHTS
OF 1689 WERE INITIALLY DIRECTED TO THE TYPE AND DEGREE OF PUNISHMENT
INFLICTED.  /32/  BUT IN ROBINSON WE RECOGNIZED THAT "THE PRINCIPLE
THAT WOULD DENY POWER TO EXACT CAPITAL PUNISHMENT FOR A PETTY CRIME
WOULD ALSO DENY POWER TO PUNISH A PERSON BY FINE OR IMPRISONMENT FOR
BEING SICK."  370 U.S.,AT 676 (MR. JUSTICE DOUGLAS, CONCURRING).  /33/ 

THE FINDINGS IN THIS CASE, READ AGAINST THE BACKGROUND OF THE
MEDICAL AND SOCIOLOGICAL DATA TO WHICH I HAVE REFERRED, COMPEL THE
CONCLUSION THAT THE INFLICTION UPON APPELLANT OF A CRIMINAL PENALTY FOR
BEING INTOXICATED IN A PUBLIC PLACE WOULD BE "CRUEL AND INHUMAN
PUNISHMENT" WITHIN THE PROHIBITION OF THE EIGHTH AMENDMENT.  THIS
CONCLUSION FOLLOWS BECAUSE APPELLANT IS A "CHRONIC ALCOHOLIC" WHO,
ACCORDING TO THE TRIER OF FACT, CANNOT RESIST THE "CONSTANT EXCESSIVE
CONSUMPTION OF ALCOHOL" AND DOES NOT APPEAR IN PUBLIC BY HIS OWN
VOLITION BUT UNDER A "COMPULSION" WHICH IS PART OF HIS CONDITION. 

I WOULD REVERSE THE JUDGMENT BELOW. 

/1/  I DO NOT UNDERSTAND THE RELEVANCE OF OUR KNOWING "VERY LITTLE
ABOUT THE CIRCUMSTANCES SURROUNDING THE DRINKING BOUT WHICH RESULTED IN
THIS CONVICTION, OR ABOUT LEROY POWELL'S DRINKING PROBLEM."  (OPINION
OF MARSHALL, J., ANTE, AT 521-522).  WE DO NOT "TRADITIONALLY" SIT AS A
TRIAL COURT, MUCH LESS AS A FINDER OF FACT.  I SUBMIT THAT WE MUST
ACCEPT THE FINDINGS OF THE TRIAL COURT AS THEY WERE MADE AND NOT AS THE
MEMBERS OF THIS COURT WOULD HAVE MADE THEM HAD THEY SAT AS TRIERS OF
FACT.  I WOULD ADD, LEST I CREATE A MISUNDERSTANDING, THAT I DO NOT
SUGGEST IN THIS OPINION THAT LEROY POWELL HAD A CONSTITUTIONAL RIGHT,
BASED UPON THE EVIDENCE ADDUCED AT HIS TRIAL, TO THE FINDINGS OF FACT
THAT WERE MADE BY THE COUNTY COURT; ONLY THAT ONCE SUCH FINDINGS WERE
IN FACT MADE, IT BECAME THE DUTY OF THE TRIAL COURT TO APPLY THE
RELEVANT LEGAL PRINCIPLES AND TO DECLARE THAT APPELLANT'S CONVICTION
WOULD BE CONSTITUTIONALLY INVALID.  SEE INFRA, AT 567-570. 

I CONFESS, TOO, THAT I DO NOT UNDERSTAND THE RELEVANCE OF OUR
KNOWING VERY LITTLE "ABOUT ALCOHOLISM ITSELF," GIVEN WHAT WE DO KNOW--
THAT FINDINGS SUCH AS THOSE MADE IN THIS CASE ARE, IN THE VIEW OF
COMPETENT MEDICAL AUTHORITIES, PERFECTLY PLAUSIBLE.  SEE INFRA, AT 560
562. 

/2/  IT IS NOT FORESEEABLE THAT FINDINGS SUCH AS THOSE WHICH ARE
DECISIVE HERE-- NAMELY THAT THE APPELLANT'S BEING INTOXICATED IN PUBLIC
WAS A PART OF THE PATTERN OF HIS DISEASE AND DUE TO A COMPULSION
SYMPTOMATIC OF THAT DISEASE-- COULD OR WOULD BE MADE IN THE CASE OF
OFFENSES SUCH AS DRIVING A CAR WHILE INTOXICATED, ASSAULT, THEFT, OR
ROBBERY.  SUCH OFFENSES REQUIRE INDEPENDENT ACTS OR CONDUCT AND DO NOT
TYPICALLY FLOW FROM AND ARE NOT PART OF THE SYNDROME OF THE DISEASE OF
CHRONIC ALCOHOLISM.  IF AN ALCOHOLIC SHOULD BE CONVICTED FOR CRIMINAL
CONDUCT WHICHIS NOT A CHARACTERISTIC AND INVOLUNTARY PART OF THE
PATTERN OF THE DISEASE AS IT AFFLICTS HIM, NOTHING HEREIN WOULD PREVENT
HIS PUNISHMENT. 

/3/  THE TERM HAS BEEN VARIOUSLY DEFINED.  THE NATIONAL COUNCIL ON
ALCOHOLISM HAS DEFINED "ALCOHOLIC" AS "A PERSON WHO IS POWERLESS TO
STOP DRINKING AND WHOSE DRINKING SERIOUSLY ALTERS HIS NORMAL LIVING
PATTERN."  THE AMERICAN MEDICAL ASSOCIATION HAS DEFINED ALCOHOLICS AS
"THOSE EXCESSIVE DRINKERS WHOSE DEPENDENCE ON ALCOHOL HAS ATTAINED SUCH
A DEGREE THAT IT SHOWS A NOTICEABLE DISTURBANCE OR INTERFERENCE WITH
THEIR BODILY OR MENTAL HEALTH, THEIR INTERPERSONAL RELATIONS, AND THEIR
SATISFACTORY SOCIAL AND ECONOMIC FUNCTIONING." 

FOR OTHER COMMON DEFINITIONS OF ALCOHOLISM, SEE KELLER, ALCOHOLISM:
NATURE AND EXTENT OF THE PROBLEM, IN UNDERSTANDING ALCOHOLISM, 315
ANNALS 1, 2 (1958); O. DIETHELM, ETIOLOGY OF CHRONIC ALCOHOLISM 4
(1955); T. PLAUT, ALCOHOL PROBLEMS-- A REPORT TO THE NATION BY THE
COOPERATIVE COMMISSION ON THE STUDY OF ALCOHOLISM 39 (1967) (HEREAFTER
CITED AS PLAUT); ASPECTS OF ALCOHOLISM 9 (1963) (PUBLISHED BY ROCHE
LABORATORIES); THE TREATMENT OF ALCOHOLISM-- A STUDY OF PROGRAMS AND
PROBLEMS 8 (1967) (PUBLISHED BY THE JOINT INFORMATIO SERVICE OF THE
AMERICAN PSYCHIATRIC ASSOCIATION AND THE NATIONAL ASSOCIATION FOR
MENTAL HEALTH) (HEREAFTER CITED AS THE TREATMENT OF ALCOHOLISM); 2 R.
CECIL & R. LOEB, A TEXTBOOK OF MEDICINE 1620, 1625 (1959). 

/4/  IT RANKS AMONG THE TOP FOUR PUBLIC HEALTH PROBLEMS OF THE
COUNTRY.  M. BLOCK, ALCOHOLISM-- ITS FACETS AND PHASES (1962). 

/5/  AMERICAN MEDICAL ASSOCIATION:  REPORT OF REFERENCE COMMITTEE ON
MEDICAL EDUCATION AND HOSPITALS, PROCEEDINGS OF THE HOUSE OF DELEGATES,
SEATTLE, WASH., NOV. 27-29, 1956, P. 33; 163 J.A.M.A. 52 (1957). 

/6/  SEE GENERALLY E. JELLINEK, THE DISEASE CONCEPT OF ALCOHOLISM
(1960). 

/7/  SEE, E.G., H. HAGGARD & E. JELLINEK, ALCOHOL EXPLORED (1942);
O. DIETHELM, ETIOLOGY OF CHRONIC ALCOHOLISM (1955); A. ULLMAN, TO KNOW
THE DIFFERENCE (1960); D. PITTMAN & C. SNYDER, SOCIETY, CULTURE, AND
DRINKING PATTERNS (1962). 

/8/  SEE ALCOHOLISM, PUBLIC INTOXICATION AND THE LAW, 2
COL.J.LAW&SOC.PROB.  109, 113 (1966). 

/9/  SEE ALCOHOL AND ALCOHOLISM 24-28 (PUBLISHED BY THE PUBLIC
HEALTH SERVICE OF THE U.S. DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE).  "ALTHOUGH MANY INTERESTING PIECES OF EVIDENCE HAVE BEEN
ASSEMBLED, ITIS NOT YET KNOWN WHY A SMALL PERCENTAGE OF THOSE WHO USE
ALCOHOL DEVELOP A DESTRUCTIVE AFFINITY FOR IT."  THE TREATMENT OF
ALCOHOLISM 9. 

/10/  SEE E. JELLINEK, THE DISEASE CONCEPT OF ALCOHOLISM 35-41
(1960). 

/11/  ALCOHOLISM 3 (1963) (PUBLISHED BY THE PUBLIC HEALTH SERVICE OF
THE U.S. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE).  SEE ALSO
BACON, ALCOHOLICS DO NOT DRINK, IN UNDERSTANDING ALCOHOLISM, 315 ANNALS
55-64 (1958). 

/12/  A. ULLMAN, TO KNOW THE DIFFERENCE 22 (1960). 

/13/  IN RESPONSE TO THE QUESTION "CAN A CHRONIC ALCOHOLIC BE
MEDICALLY TREATED AND RETURNED TO SOCIETY AS A USEFUL CITIZEN?"  DR.
WADE TESTIFIED AS FOLLOWS: 

"WE BELIEVE THAT IT IS POSSIBLE TO TREAT ALCOHOLICS, AND WE HAVE
LARGE NUMBERS OF INDIVIDUALS WHO ARE NOW FORMER ALCOHOLICS.  THEY
THEMSELVES WOULD RATHER SAY THAT THEIR CONDITION HAS BEEN ARRESTED AND
THAT THEY REMAIN ALCOHOLICS, THAT THEY ARE SIMPLY LIVING A PATTERN OF
LIFE, THROUGH THE HELP OF MEDICINE OR WHATEVER SOURCE, THAT ENABLES
THEM TO REFRAIN FROM DRINKING AND ENABLES THEM TO COMBAT THE COMPULSION
TO DRINK." 

/14/  THE TREATMENT OF ALCOHOLISM 13. 

/15/  ID., AT 13-26.  SEE ALSO ALCOHOL AND ALCOHOLISM 31-40; PLAUT
53-85. 

/16/  SEE A. ULLMAN, TO KNOW THE DIFFERENCE 173-191 (1960). 

/17/  FOR THE MOST PART THESE LAWS AND ORDINANCES, LIKE ARTILE 477
OF THE TEXAS PENAL CODE, COVER THE OFFENSE OF BEING DRUNK IN A PUBLIC
PLACE.  SEE TASK FORCE REPORT:  DRUNKENNESS 1 (1967) (PUBLISHED BY THE
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE) (HEREAFTER CITED AS TASK FORCE REPORT). 

/18/  IBID. 

/19/  SEE ALCOHOLISM, PUBLIC INTOXICATION AND THE LAW, 2 COL.J.LAW &
SOC.PROB.  109, 110 (1966). 

/20/  SEE TASK FORCE REPORT 3-4. 

/21/  ID., AT 1. 

/22/  F. ALLEN, THE BORDERLAND OF CRIMINAL JUSTICE 8 (1964).  IT
DOES NOT, OF COURSE, NECESSARILY FOLLOW FROM THE FREQUENCY OF HIS
ARRESTS THAT A PERSON IS A CHRONIC ALCOHOLIC. 

/23/  SEE D. PITTMAN & C. GORDON, REVOLVING DOOR:  A STUDY OF THE
CHRONIC POLICE CASE INEBRIATE (1958).  SEE ALSO PITTMAN, PUBLIC
INTOXICATION AND THE ALCOHOLIC OFFENDER IN AMERICAN SOCIETY, APPENDIX A
TO TASK FORCE REPORT. 

DR. WADE ANSWERED EACH TIME IN THE NEGATIVE WHEN SAID: 

"IS A CHRONIC ALCOHOLIC GOING TO BE REHABILITATED BY SIMPLY
CONFINING HIM IN JAIL WITHOUT MEDICAL ATTENTION? 

"WOULD PUTTING A CHRONIC ALCOHOLIC IN JAIL OPERATE TO LESSEN HIS
DESIRE FOR ALCOHOL WHEN HE IS RELEASED? 

"WOULD IMPOSING A MONETARY FINE ON A CHRONIC ALCOHOLIC OPERATE TO
LESSEN HIS DESIRE FOR ALCOHOL?" 

/24/  SEE, E.G., MACCORMICK, CORRECTIONAL VIEWS ON ALCOHOL,
ALCOHOLISM, AND CRIME, 9 CRIME&DELIN.  15 (1963). 

/25/  SEE, E.G., MURTAGH, ARRESTS FOR PUBLIC INTOXICATION, 35
FORDHAML.REV.  1 (1966). 

/26/  M. GUTTMACHER & H. WEIHOFEN, PSYCHIATRY AND THE LAW 319
(1952). 

/27/  F. ALLEN, THE BORDERLAND OF CRIMINAL JUSTICE 8-9 (1964). 

/28/  "WE WOULD FORGET THE TEACHINGS OF THE EIGHTH AMENDMENT IF WE
ALLOWED SICKNESS TO BE MADE A CRIME AND PERMITTED SICK PEOPLE TO BE
PUNISHED FOR BEING SICK.  THIS AGE OF ENLIGHTENMENT CANNOT TOLERATE
SUCH BARBAROUS ACTION."  370 U.S.,AT 678 (DOUGLAS, J., CONCURRING). 

/29/  THE COURT NOTED IN ROBINSON THAT NARCOTIC ADDICTION "IS
APPARENTLY AN ILLNESS WHICH MAY BE CONTRACTED INNOCENTLY OR
INVOLUNTARILY."  ID., AT 667.  IN THE CASE OF ALCOHOLISM IT IS EVEN
MORE LIKELY THAT THE DISEASE MAY BE INNOCENTLY CONTRACTED, SINCE THE
DRINKING OF ALCOHOLIC BEVERAGES IS A COMMON ACTIVITY, GENERALLY
ACCEPTED IN OUR SOCIETY, WHILE THE PURCHASING AND TAKING OF DRUGS ARE
CRIMES.  AS IN ROBINSON, THE STATE HAS NOT ARGUED HERE THAT POWELL'S
CONVICTION MAY BE SUPPORTED BY HIS "VOLUNTARY" ACTION IN BECOMING
AFFLICTED. 

/30/  IN ROBINSON, WE DISTINGUISHED BETWEEN PUNISHMENT FOR THE
"STATUS" OF ADDICTION AND PUNISHMENT OF AN "ACT": 

"THIS STATUTE . . . IS NOT ONE WHICH PUNISHES A PERSON FOR THE USE
OF NARCOTICS, FOR THEIR PURCHASE, SALE OR POSSESSION, OR FOR ANTISOCIAL
OR DISORDERLY BEHAVIOR RESULTING FROM THEIR ADMINISTRATION.  IT IS NOT
A LAW WHICH EVEN PURPORTS TO PROVIDE OR REQUIRE MEDICAL TREATMENT. 
RATHER, WE DEAL WITH A STATUTE WHICH MAKES THE 'STATUS' OF NARCOTIC
ADDICTION A CRIMINAL OFFENSE, FOR WHICH THE OFFENDER MAY BE PROSECUTED
'AT ANY TIME BEFORE HE REFORMS.'  CALIFORNIA HAS SAID THAT A PERSON CAN
BE CONTINUOUSLY GUILTY OF THIS OFFENSE, WHETHER OR NOT HE HAS EVER USED
OR POSSESSED ANY NARCOTICS WITHIN THE STATE, AND WHETHER OR NOT HE HAS
BEEN GUILTY OF ANY ANTISOCIAL BEHAVIOR THERE."  ID., AT 666. 

/31/  I ALSO READ THESE FINDINGS TO MEAN THAT APPELLANT'S DISEASE IS
SUCH THAT HE CANNOT BE DETERRED BY ARTICLE 477 OF THE TEXAS PENAL CODE
FROM DRINKING TO EXCESS AND FROM APPEARING IN PUBLIC WHILE
INTOXICATED.  SEE N. 23, SUPRA. 

FINALLY, CONTRARY TO THE VIEWS OF MR. JUSTICE WHITE, ANTE, AT 549-551,
I BELIEVE THESE FINDINGS MUST FAIRLY BE READ TO ENCOMPASS THE FACTS
THAT MY BROTHER WHITE AGREES WOULD REQUIRE REVERSAL, THAT IS, THAT FOR
APPELLANT POWELL, "RESISTING DRUNKENNESS" AND "AVOIDING PUBLIC PLACES
WHEN INTOXICATED" ON THE OCCASION IN QUESTION WERE "IMPOSSIBLE." 
ACCORDINGLY, IN MR. JUSTICE WHITE'S WORDS, "(THE) STATUTE IS IN EFFECT
A LAW WHICH BANS A SINGLE ACT FOR WHICH (HE) MAY NOT BE CONVICTED UNDER
THE EIGHTH AMENDMENT-- THE ACT OF GETTING DRUNK."  IN MY JUDGMENT, THE
FINDINGS AMPLY SHOW THAT "IT WAS NOT FEASIBLE FOR (POWELL) TO HAVE MADE
ARRANGEMENTS TO PREVENT HIS BEING IN PUBLIC WHEN DRUNK AND THAT HIS
EXTREME DRUNKENNESS SUFFICIENTLY DEPRIVED HIM OF HIS FACULTIES ON THE
OCCASION IN ISSUE." 

/32/  SEE, E.G., TROP V. DULLES, 356 U.S. 86 (1958); WEEMS V. UNITED
STATES, 217 U.S. 349 (1910).  SEE GENERALLY NOTE, THE CRUEL AND UNUSUAL
PUNISHMENT CLAUSE AND THE SUBSTANTIVE CRIMINAL LAW, 79 HARV.L.REV. 
635, 636-645 (1966). 

/33/  CONVICTIONS OF CHRONIC ALCOHOLICS FOR VIOLATIONS OF PUBLIC
INTOXICATION STATUTES HAVE BEEN INVALIDATED ON EIGHTH AMENDMENT GROUNDS
IN TWO CIRCUITS.  SEE EASTER V. DISTRICT OF COLUMBIA, 124 U.S.APP.D.C.
33, 361 F.2D 50 (1966); DRIVER V. HINNANT, 356 F.2D 761 (C.A. 4TH CIR.
1966). 

DON L. DAVIS ARGUED THE CAUSE FOR APPELLANT, PRO HAC VICE.  WITH HIM
ON THE BRIEFS WAS TOM H. DAVIS. 

DAVID ROBINSON, JR., ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEFS WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, GEORGE M.
COWDEN, FIRST ASSISTANT ATTORNEY GENERAL, R. L. LATTIMORE AND LONNY F.
ZWIENER, ASSISTANT ATTORNEYS GENERAL, AND A. J. CARUBBI, JR. 

PETER BARTON HUTT ARGUED THE CAUSE FOR THE AMERICAN CIVIL LIBERTIES
UNION ET AL., AS AMICI CURIAE, URGING REVERSAL.  WITH HIM ON THE BRIEF
WAS RICHARD A. MERRILL. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY PAUL O'DWYER
FOR THE NATIONAL COUNCIL ON ALCOHOLISM, AND BY THE PHILADELPHIA
DIAGNOSTIC AND
..END :

















AMERICAN LINES V. L. & N.R. CO., 392 U.S. 571 


       AMERICAN COMMERCIAL LINES, INC., ET AL. V. LOUISVILLE &

           NASHVILLE RAILROAD CO. ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

           DISTRICT OF KENTUCKY. 

        NO. 797.  ARGUED APRIL 23-24, 1968.-- DECIDED JUNE 17,

           1968.  /0/ 


SINCE 1953 INGOT MOLDS HAVE MOVED ALMOST EXCLUSIVELY BY COMBINATION
BARGE-TRUCK SERVICE FROM NEVILLE ISLAND AND PITTSBURGH, PA., TO
STEELTON, KY.  THE OVERALL SERVICE CHARGE SINCE 1960 HAS BEEN $5.11 PER
TON.  IN 1963 APPELLEES PENNSYLVANIA RAILROAD AND THE LOUISVILLE &
NASHVILLE RAILROAD, IN ORDER TO COMPETE FOR THIS TRAFFIC, LOWERED THEIR
JOINT RATE FROM $11.86 TO $5.11 PER TON.  THE BARGE LINES, JOINED BY
INTERVENING TRUCKING INTERESTS, PROTESTED TO THE INTERSTATE COMMERCE
COMMISSION (ICC) THAT THE NEW RAILROAD RATE IMPAIRED OR DESTROYED THE
BARGE-TRUCK SERVICE'S "INHERENT ADVANTAGE" AND THUS VIOLATED SEC.
15A(3) OF THE INTERSTATE COMMERCE ACT AND THE NATIONAL TRANSPORTATION
POLICY.  UNDER SEC. 15A(3) A CARRIER'S RATES "SHALL NOT BE HELD UP TO A
PARTICULAR LEVEL TO PROTECT THE TRAFFIC OF ANY OTHER MODE OF
TRANSPORTATION, GIVING DUE CONSIDERATION TO THE OBJECTIVES OF THE
NATIONAL TRANSPORTATION POLICY DECLARED IN THIS ACT."  THE
CONGRESSIONAL INTENT STATED IN THE NATIONAL TRANSPORTATION POLICY IS TO
PROVIDE FOR FAIR REGULATION OF ALL TRANSPORTATION MODES SUBJECT TO THE
ACT, ADMINISTERED SO AS TO PRESERVE "THE INHERENT ADVANTAGE OF EACH." 
THE ICC FOUND THAT THE PER TON FULLY DISTRIBUTED COST OF MOVING THE
TRAFFIC WAS $7.59 FOR THE RAILROADS AND $5.19 FOR THE BARGE-TRUCK
SERVICE, AND THE LONG-TERM OUT-OF-POCKET COST WAS $4.69 FOR THE
RAILROADS AND ESTIMATED TO BE ABOUT $5.19 FOR THE BARGE-TRUCK SERVICE
AND IN ANY EVENT HIGHER THAN $4.69.  UNCONTROVERTED SHIPPER TESTIMONY
WAS THAT PRICE SOLELY DETERMINED WHICH SERVICE WOULD BE USED, BUT THAT
ALL TRAFFIC WOULD GO TO THE RAILROADS IF THEIR RATES WERE THE SAME AS
THOSE OF THE BARGE-TRUCK COMBINATION.  THE ICC REJECTED THE RAILROADS'
CONTENTION THAT OUT-OF-POCKET COSTS SHOULD BE THE BASIS ON WHICH
"INHERENT ADVANTAGE" SHOULD BE DETERMINED, OBSERVING THAT IT HAD
REGULARLY VIEWED FULLY DISTRIBUTED COSTS AS THE PROPER BASIS FOR
DETERMINING THE LOWER COST MODE OF TWO COMPETING MODES FOR PARTICULAR
TRAFFIC, THAT LEGISLATIVE HISTORY INDICATED THAT CONGRESS INTENDED
FULLY DISTRIBUTED COSTS TO BE THE BASIS FOR COMPARISON WHEN IT INSERTED
INTO SEC. 15A(3) THE REFERENCE TO THE NATIONAL TRANSPORTATION POLICY;
AND THAT A RULEMAKING PROCEEDING WAS PENDING INVOLVING THE WHOLE
QUESTION OF COSTING IN SITUATIONS INVOLVING INTERMODAL COMPETITION AND
THAT A RADICAL DEPARTURE FROM THE FULLY DISTRIBUTED COST NORM WOULD NOT
BE WARRANTED ON THE RECORD BEFORE IT.  UTILIZING THE FULLY DISTRIBUTED
COSTS COMPARISON TO DETERMINE INHERENT ADVANTAGE, THE ICC ORDERED THE
RAILROADS' RATE CANCELED, HAVING CONCLUDED THAT SUCH A RATE WOULD
INFRINGE UPON THE BARGE-TRUCK CARRIERS' ABILITY COMPETITIVELY TO ASSERT
THEIR INHERENT ADVANTAGE BECAUSE IT WOULD COMPEL THEM TO GO WELL BELOW
THEIR OWN FULLY DISTRIBUTED COSTS TO RECAPTURE THE TRAFFIC FROM THE
RAILROADS.  THE DISTRICT COURT REVERSED.  AFTER ANALYZING THIS COURT'S
OPINION CONSTRUING SEC. 15A(3) IN ICC V. NEW YORK, N.H. & H.R. CO., 372
U.S. 744 (1963) ("NEW HAVEN"), AND THE LEGISLATIVE HISTORY OF SEC.
15A(3), IT CONCLUDED THAT THE ICC ORDER CONTRAVENED THE ACT AND HELD
THACONGRESS INTENDED THAT INHERENT ADVANTAGE SHOULD BE DETERMINED IN
MOST CASES BY A COMPARISON OF OUT-OF-POCKET COSTS AND THAT THEREFORE
COMPETING CARRIERS SHOULD GENERALLY BE FREE TO OFFER ANY RATES AS LONG
AS THEY WERE COMPENSATORY.  IT ALSO HELD THAT THE ICC HAD NOT
ARTICULATED THE REASONS FOR DECIDING THAT INHERENT ADVANTAGE SHOULD BE
DETERMINED BY REFERENCE TO FULLY DISTRIBUTED LOSTS.  HELD:  THE ICC
PROPERLY EXERCISED ITS DISCRETION IN DISALLOWING THE RATE REDUCTION
PROPOSED BY THE APPELLEE RAILROADS AS INCONSISTENT WITH SEC. 15A(3) OF
THE INTERSTATE COMMERCE ACT AND THE NATIONAL TRANSPORTATION POLICY AND
ADEQUATELY ARTICULATED ITS REASONS FOR DISALLOWING THE PROPOSED RATE. 
PP. 579-594. 

(A) BEFORE ENACTING SEC. 15A(3), FOLLOWING RAILROAD COMPLAINTS THAT
THE ICC HAD MAINTAINED ARTIFICIALLY HIGH RATES TO PROTECT COMPETING
MODES FROM BEING DRIVEN OUT OF BUSINES BY THE RAILROADS, CONGRESS
REJECTED LANGUAGE THAT WOULD HAVE REQUIRED LOOKING ONLY TO THE EFFECT
OF A RATE REDUCTION ON THE PROPONENT CARRIER.  "THE PRINCIPAL REASON
FOR (THE REFERENCE TO THE NATIONAL TRANSPORTATION POLICY) . . . WAS TO
EMPHASIZE THE POWER OF THE COMMISSION TO PREVENT THE RAILROADS FROM
DESTROYING OR IMPAIRING THE INHERENT ADVANTAGES OF OTHER MODES."  NEW
HAVEN, SUPRA, AT 758.  PP. 579-582. 

(B) THE DISTRICT COURT ERRED IN CONCLUDING FROM THE NEW HAVEN
DECISION AND ITS OWN INTERPRETATION OF SEC. 15A(3) THAT THE ICC HAD THE
BURDEN OF JUSTIFYING A DEPARTURE FROM USING OUT-OF-POCKET COST TO
DETERMINE INHERENT COST ADVANTAGE, SINCE NEW HAVEN DID NOT REQUIRE ANY
PARTICULAR METHOD OF COSTING TO BE USED AS A STANDARD.  PP. 583-584. 

(C) SECTION 15A(3) IN CONJUNLTION WITH THE NATIONAL TRANSPORTATION
POLICY WAS NOT ENACTED TO ENABLE THE RAILROADS TO PRICE THEIR SERVICES
IN SUCH A WAY AS TO OBTAIN THE MAXIMUM REVENUE THEREFROM.  P. 589. 

(D) THE ICC HAS THE AUTHORITY TO EXERCISE ITS INFORMED JUDGMENT IN
DETERMINING THE METHOD OF COSTING WHICH IS TO BE USED UNDER SEC.
15A(3), AND HAS REASONABLE LATITUDE TO DETERMINE WHERE AND HOW IT WILL
RESOLVE THAT COMPLEX ISSUE.  PP. 590-592. 

(E) THE DISTRICT COURT ERRED IN NOT RECOGNIZING THE ICC'S AMPLE
AUTHORITY TO DECLINE TO DEAL WITH THE RAILROADS' BROAD CONTENTIONS IN
THIS INDIVIDUAL CASE PENDING ITS EVALUATION IN THE CONTEXT OF A
RULEMAKING PROCEEDING OF THE EFFECTS ON THE TRANSPORTATION INDUSTRY AS
A WHOLE OF THE ALTERNATIVES OF A DEPARTURE FROM THE FULLY DISTRIBUTED
COST STANDARD WHICH THE ICC HAD BEEN USING IN PASSING UPON INDIVIDUAL
RATE REDUCTIONS.  SEE PERMIAN BASIN AREA RATE CASES, 390 U.S. 747.  PP.
590-593. 

(F) THE ICC WAS NOT REQUIRED TO EXPLAIN WHY IT PERMITTED OUT-OF
POCKET RATEMAKING FOR UNREGULATED CARRIERS AND NOT WHERE THE
COMPETITION WAS REGULATED, SINCE SEC. 15A(3) BY ITS OWN TERMS APPLIES
ONLY TO REGULATED CARRIERS.  P. 593. 

(G) THE ICC ADEQUATELY EXPLAINED HOW THE RAILROADS' RATE WOULD
IMPAIR THE BARGE-TRUCK INHERENT ADVANTAGE, FOR AS THE ICC POINTED OUT,
THE RATEMAKING PRINCIPLE PROPOSED BY THE RAILROADS WOULD HAVE PERMITTED
THEM TO CAPTURE ALL THE TRAFFIC PRESENTLY HANDLED BY THE BARGE-TRUCK
COMBINATION BECAUSE THE RAILROADS' OUT-OF-POCKET COSTS WERE LOWER THAN
THOSE OF THE BARGE-TRUCK SERVICE.  PP. 593-594. 

268 F.SUPP.  '1, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINON OF THE COURT. 

THE BASIC ISSUE IN THESE CASES IS WHETHER THE ACTION OF THE
INTERSTATE COMMERCE COMMISSION IN DISALLOWING A RATE REDUCTION PROPOSED
BY THE APPELLEE RAILROADS, 326 I.C.C. 77 (1965), WAS CONSISTENT WITH
THE PROVISIONS OF SEC. 15A(3) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C.
SEC. 15A(3), ADDED BY 72 STAT. 572 (1958), WHICH GOVERNS RATEMAKING IN
SITUATIONS INVOLVING INTERMODAL COMPETITION.  A SUBSIDIARY BUT RELATED
ISSUE IS WHETHER THE COMMISSION ADEQUATELY ARTICULATED ITS REASONS FOR
DISALLOWING THE PROPOSED RATE.  A STATUTORY THREE-JUDGE COURT, UPON
APPEAL OF THE COMMISSION'S DECISION WAS ERRONEOUS ON BOTH OF THE
FOREGOING GROUNDS.  268 F.SUPP.  71 (D.C.W.D.KY. 1967).  BECAUSE OF THE
IMPORTANCE OF SEC. 15A(3) AS THE PRIMARY GUIDE TO ICC RESOLUTION OF
RATE CONTROVERSIES INVOLVING INTERMODAL COMPETITION, WE NOTED PROBABLE
JURISDICTION OF THE APPEAL TAKEN BY THE COMMISSION AND THE COMPETING
CARRIERS FROM THE DECISION OF THE DISTRICT COURT.  /1/  389 U.S. 1032
(1968).  FOR THE REASONS DETAILED BELOW, WE CONCLUDE THAT THE DISTRICT
COURT ERRED IN ITS REJECTION OF HE COMMISSION'S DECISION, AND THE
GROUNDS ON WHICH IT WAS BASED, AND WE REVERSE. 

        I. 

SINCE 1953 THE MOVEMENT OF INGOT MOLDS FROM NEVILLE ISLAND AND
PITTSBURGH, PENNSYLVANIA, TO STEELTON, KENTUCKY, HAS BEEN ALMOST
EXCLUSIVELY BY COMBINATION BARGE-TRUCK SERVICE, AND SINCE 1960 THE
OVERALL CHARGE FOR THIS SERVICE HAS BEEN $5.11 PER TON.  IN 1963 THE
PENNSYLVANIA RAILROAD AND THE LOUISVILLE & NASHVILLE RAILROAD LOWERED
THEIR JOINT RATE FOR THIS SAME TRAFFIC FROM $11.86 TO $5.11 PER TON. 
THE COMPETING BARGE LINES, JOINED BY INTERVENING TRUCKING INTERESTS,
PROTESTED TO THE ICC THAT THE NEW RAILROAD RATE VIOLATED SEC. 15A(3) OF
THE INTERSTATE COMMERCE ACT BECAUSE IT IMPAIRED OR DESTROYED THE
INHERENT ADVANTAGE"  /2/  THEN ENJOYED BY THE BARGE-TRUCK SERVICE.  THE
COMMISSION THEREUPON UNDERTOOK AN INVESTIGATION OF THE RATE REDUCTION. 

IN THE COURSE OF THE ADMINISTRATIVE PROCEEDINGS THAT FOLLOWED, THE
ICC MADE THE FOLLOWING FACTUAL FINDINGS ABOUT WHICH THERE IS NO REAL
DISPUTE AMONG THE PARTIES.  THE FULLY DISTRIBUTED COST /3/  TO THE
RAILROADS OF THIS SERVICE WAS $7.59 PER TON, AND THE "LONG TERM OUT-OF
POCKET COSTS"  /4/  WERE $4.69 PER TON.  THE FULLY DISTRIBUTED COST TO
THE BARGE-TRUCK SERVICE /5/  WAS $5.19 PER TON.  /6/  THE OUT-OF-POCKET
COST /7/  OF THE BARGE-TRUCK SERVICE WAS NOT SEPARATELY COMPUTED, BUT
WAS ESTIMATED, WITHOUT CONTRADICTION, TO BE APPROXIMATELY THE SAME AS
THE FULLY DISTRIBUTED COST AND HIGHER, IN ANY EVENT, THAN THE OUT-OF
POCKET COST OF THE RAILROADS.  THE UNCONTROVERTED SHIPPER TESTIMONY WAS
TO THE EFFECT THAT PRICE WAS VIRTUALLY THE SOLE DETERMINED OF WHICH
SERVICE WOULD BE UTILIZED, BUT THAT, WERE THE RATES CHARGED BY THE
RAILROADS AND THE BARGE-TRUCK COMBINATION THE SAME, ALL THE TRAFFIC
WOULD GO TO THE RAILROADS. 

THE RAILROADS CONTENDED THAT THEY SHOULD BE PERMITTED TO MAINTAIN
THE $5.11 RATE, ONCE IT WAS SHOWN TO EXCEED THE OUT-OF-POCKET COST
ATTRIBUTABLE TO THE SERVICE, ON THE GROUND THAT ANY RATE SO SET WOULD
ENABLE THEM TO MAKE A PROFIT ON THE TRAFFIC.  THE RAILROADS FURTHER
CONTENDED THAT THE FACT THAT THE RATE WAS SUBSTANTIALLY BELOW ,HEIR
FULLY DISTRIBUTED COST FOR THE SERVICE WAS IRRELEVANT, SINCE THAT COST
IN NO WAY REFLECTED THE PROFITABILITY OF THE TRAFFIC TO THEM.  THE
BARGE-TRUCK INTERESTS, ON THE OTHER HAND, TOOK THE POSITION THAT SEC.
15A(3) REQUIRED THE COMMISSION TO LOOK TO THE RAILROADS' FULLY
DISTRIBUTED COSTS IN ORDER TO ASCERTAIN WHICH OF THE COMPETING MODES
HAD THE INHERENT COST ADVANTAGE ON THE TRAFFIC AT ISSUE.  THEY ARGUED
THAT THE FACT THAT THE RAILROADS' RATE WOULD BE PROFITABLE WAS MERELY
THE MINIMUM REQUIREMENT UNDER THE STATUTE.  THE RAILROADS IN RESPONSE
CONTENDED THAT INHERENT ADVANTAGE SHOULD BE DETERMINED BY A COMPARISON
OF OUT-OF-POCKET RATHER THAN FULLY DISTRIBUTED COSTS, AND THEY PRODUCED
SEVERAL ECONOMISTS TO TESTIFY THAT, FROM THE STANDPOINT OF ECONOMIC
THEORY, THE COMPARISON OF OUT-OF-POCKET, OR INCREMENTAL, COSTS WAS THE
ONLY RATIONAL WAY OF REGULATING COMPETITIVE RATES. 

THE ICC REJECTED THE RAILROADS' CONTENTION THAT OUT-OF-POCKET COSTS
SHOULD BE THE BASIS ON WHICH INHERENT ADVANTAGE SHOULD BE DETERMINED. 
THE COMMISSION OBSERVED THAT IT HAD IN THE PAST REGULARLY VIEWED FULLY
DISTRIBUTED COSTS AS THE APPROPRIATE BASIS FOR DETERMINING WHICH OF TWO
COMPETING MODES WAS THE LOWER COST MODE AS REGARDS PARTICULAR TRAFFIC. 
IT FURTHER INDICATED THAT THE LEGISLATIVE HISTORY OF SEC. 15A(3)
REVEALED THAT CONGRESS HAD IN MIND A COMPARISON OF FULLY DISTRIBUTED
COSTS WHEN IT INSERTED THE REFERENCE TO THE NATIONAL TRANSPORTATION
POLICY INTO THAT SECTION IN PLACE OF LANGUAGE SOUGHT BY THE RAILROADS. 
4 ##HC578 THE COMMISSION ALSO EMPHASIZED THAT THERE WAS A RULEMAKING
PROCEEDING PENDING BEFORE IT IN WHICH THE WHOLE QUESTION OF THE PROPER
STANDARD OF COSTING IN SITUATIONS INVOLVING INTERMODAL COMPETITION WAS
BEING EXAMINED IN DEPTH, AND STATED THAT "A RADICAL DEPARTURE FROM THE
FULLY DISTRIBUTED COST NORM" WOULD NOT BE JUSTIFIED ON THE BASIS OF THE
RECORD BEFORE IT IN THIS CASE. 

HAVING DECIDED TO UTILIZE A COMPARISON BETWEEN FULLY DISTRIBUTED
COSTS TO DETERMINE INHERENT ADVANTAGE, THE COMMISSION THEN CONCLUDED
THAT THE RATE SET BY THE RAILROADS WOULD UNDERCUT THE BARGE-TRUCK
COMBINATION'S ABILITY TO EXPLOIT ITS INHERENT ADVANTAGES BECAUSE THE
RATE WOULD FORCE THE COMPETING CARRIERS TO GO WELL BELOW THEIR OWN
FULLY DISTRIBUTED COSTS TO RECAPTURE THE TRAFFIC FROM THE RAILROADS. 
MOREOVER, SINCE THE RESULT SOUGHT BY THE RAILROADS WAS GENERAL
PERMISSION TO SET RATES ON AN OUT-OF-POCKET BASIS, THE COMMISSION
CONCLUDED THAT EVENTUALLY THE RAILROADS COULD TAKE ALL THE TRAFFIC AWAY
FROM THE BARGE-TRUCK COMBINATION BECAUSE THE OUT-OF-POCKET COSTS OF THE
FORMER WERE LOWER THAN THOSE OF THE LATTER AND, THEREFORE, IN ANY RATE
WAR THE RAILROADS WOULD BE ABLE TO OUTLAST THEIR COMPETITORS. 
ACCORDINGLY, THE COMMISSION ORDERED THAT THE RAILROADS' RATE BE
CANCELED. 

THE DISTRICT COURT READ THE STATUTE AND ITS ACCOMPANYING LEGISLATIVE
HISTORY TO REFLECT A CONGRESSIONAL JUDGMENT THAT INHERENT ADVANTAGE
SHOULD BE DETERMINED IN MOST CASES BY A COMPARISON OF OUT-OF-POCKET
COSTS AND THAT, THEREFORE, RAILROADS SHOULD GENERALLY BE PERMITTED TO
SET ANY INDIVIDUAL RATE THEY CHOOSE AS LONG AS THAT RATE IS
COMPENSATORY.  /8/  THE COURT ALSO HELD THAT THE COMMISSION HAD FAILED
ADEQUATELY TO ARTICULATE ITS REASONS FOR DECIDING THAT THE PROPER WAY
OF DETERMINING WHICH MODE OF TRANSPORTATION WAS THE MORE EFFICIENT WAS
BY COMPARISON OF FULLY DISTRIBUTED COSTS RATHER THAN OUT-OF-POCKET
COSTS.  ALTHOUGH THIS LATTER HOLDING APPEARS FIRST IN ITS OPINION, IT
IS EVIDENT THAT IT MUST LOGICALLY FOLLOW ITS RULING ON THE MEANING OF
SEC. 15A(3), SINCE IF CONGRESS IN ENACTING THAT SECTION HAD ALREADY
DECIDED THAT INHERENT ADVANTAGE SHOULD BE DETERMINED BY REFERENCE TO
FULLY DISTRIBUTED COSTS, THERE WOULD BE NO SPECIAL BURDEN ON THE
COMMISSION TO JUSTIFY ITS USE OF THEM. 

        II. 

THIS COURT HAS PREVIOUSLY HAD OCCASION TO CONSIDER THE MEANING AND
LEGISLATIVE HISTORY OF SEC. 15A(3) OF THE INTERSTATE COMMERCE ACT IN
ICC V. NEW YORK, N.H. & H.R. CO., 372 U.S. 744 (1963) ("NEW HAVEN"),
AND BOTH THE ICC AND THE DISTRICT COURT HAVE RELIED HEAVILY ON THAT
DECISION AS SUPPORT FOR THE CONFLICTING RESULTS REACHED BY THEM IN
THESE CASES.  BECAUSE THE STATUTE AND ITS RELEVANT LEGISLATIVE HISTORY
WERE SO THOROUGHLY CANVASSED THERE, WE SHALL NOT UNDERTAKE ANY EXTENDED
DISCUSSION OF THE SAME MATERIAL HERE.  INSTEAD, WE SHALL REFER TO THAT
OPINION FOR MOST OF THE RELEVANT HISTORY. 

SO FAR AS RELEVANT HERE, SEC. 15A(3) PROVIDES THAT: 

"(RATES OF A CARRIER SHALL NOT BE HELD UP TO A PARTICULAR LEVEL

  TO PROTECT THE TRAFFIC OF ANY OTHER MODE OF TRANSPORTATION,

  GIVING DUE CONSIDERATION TO THE OBJECTIVES OF ,HE NATIONAL

  TRANSPORTATION POLICY DECLARED IN THIS ACT." 

THE NATIONAL TRANSPORTATION POLICY, 49 U.S.C. PRECEDING SEC. 1, STATES
THAT IT IS THE INTENTION OF THE CONGRESS: 

     "TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES OF

TRANSPORATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO

ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES

  OF EACH . . . ." 

THE ENACTMENT OF SEC. 15A(3) IN 1958 WAS DUE PRIMARILY TO COMPLAINTS
BY THE RAILROADS THAT THE ICC HAD MAINTAINED RATES AT ARTIFICIALLY HIGH
LEVELS IN ORDER TO PROTECT COMPETING MODES FROM BEING DRIVEN OUT OF
BUSINESS BY RAILROAD COMPETITION.  /9/  THE BILL THAT EVENTUATED IN THE
LANGUAGE THAT IS PRESENTLY SEC. 15A(3) ORIGINALLY PROVIDED THAT THE
ICC, IN CONSIDERING RATE REDUCTIONS, SHOULD, IN A PROCEEDING INVOLVING
COMPETITION WITH ANOTHER MODE OF TRANSPORTATION, "CONSIDER THE FACTS
AND CIRCUMSTANCES ATTENDING THE MOVEMENT OF THE TRAFFIC BY RAILROAD AND
NOT BY SUCH OTHER MODE."  (EMPHASIS ADDED.)  372 U.S.,AT 754.  THIS
LANGUAGE WAS OBJECTED TO STRONGLY BY BOTH THE ICC AND REPRESENTATIVES
OF THOSE CARRIERS WITH WHICH THE RAILROADS WERE IN COMPETITION.  SEE
HEARINGS ON S. 3778 BEFORE THE SENATE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 85TH CONG., 2D SESS. (1958).  THE BASIC GROUND OF
OBJECTION WAS THAT BY LOOKING ONLY TO THE EFFECT OF A RATE REDUCTION ON
THE CARRIER PROPOSING IT, THE ICC WOULD BE UNABLE TO PROTECT THE
"INHERENT ADVANTAGES"  ENJOYED BY COMPETING CARRIERS ON THE TRAFFIC TO
WHICH A RATE REDUCTION WAS TO BE APPLIED. 

UNFORTUNATELY, THE MEANING OF THE TERM "INHERENT ADVANTAGE," WHICH
IS WHAT THE COMMISSION IS SUPPOSED TO PROTECT, IS NOWHERE SPELLED OUT
IN THE STATUTE.  THE RAILROADS ARGUE, AND THE DISTRICT COURT HELD, THAT
CONGRESS INTENDED BY THE TERM TO REFER TO SITUATIONS IN WHICH ONE
CARRIER COULD TRANSPORT GOODS AT A LOWER INCREMENTAL COST THAN
ANOTHER.  THE FALLACY OF THIS ARGUMENT IS THAT IT RENDERS THE TERM
"INHERENT ADVANTAGE"  ESSENTIALLY MEANINGLESS IN THE CONTEXT OF THE
LANGUAGE AND HISTORY OF SEC. 15A(3). 

SINCE THE PRICING OF RAILROAD SERVICES BELOW OUT-OF-POCKET OR
INCREMENTAL COST WOULD RESULT IN A NET REVENUE LOSS TO THE RAILROAD ON
THE CARRIAGE, THE ICC COULD PROHIBIT SUCH PRACTICES WITHOUT REFERENCE
TO THE COSTS OF ANY OTHER COMPETING CARRIER.  AND THIS IS PRECISELY
WHAT THE LANGUAGE OF THE BILL AS ORIGINALLY ENDORSED BY THE RAILROADS
WOULD HAVE PROVIDED BY ITS USE OF THE PHRASE "AND NOT BY SUCH OTHER
MODE."  SEE SUPRA, AT 580.  THIS LANGUAGE WAS, HOWEVER, REJECTED BY THE
CONGRESS AND THE ALTERNATIVE FORMULATION PROPOSED BY THE ICC, SEE
HEARINGS, SUPRA, AT 169, WAS SUBSTITUTED FOR IT. 

AS THIS COURT SAID IN THE NEW HAVEN CASE: 

     "THE PRINCIPAL REASON FOR THIS REFERENCE (TO THE NATIONAL

  TRANSPORTATION POLICY) . . . WAS TO EMPHASIZE THE POWER OF THE

  COMMISSION TO PREVENT THE RAILROADS FROM DESTROYING OR IMPAIRING

  THE INHERENT ADVANTAGES OF OTHER MODES.  AND THE PRECISE EXAMPLE

  GIVEN TO THE SENATE COMMITTEE, WHICH LED TO THE LANGUAGE ADOPTED,

 WAS A CASE IN WHICH THE RAILROADS, BY ESTABLISHING ON A PART OF

  THEIR OPERATIONS A COMPENSATORY RATE BELOW THEIR FULLY

  DISTRIBUTED COST, FORCED A SMALLER COMPETING LOWER COST MODE TO

  GO BELOW ITS OWN FULLY DISTRIBUTED COST AND THUS PERHAPS TO GO

  OUT OF BUSINESS."  372 U.S.,AT 758. 

SINCE THESE CASES ARE IDENTICAL TO THE EXAMPLE JUST DESCRIBED, IT WOULD
SEEM THAT, AT THE VERY LEAST, THE RESULT REACHED BY THE COMMISSIO4 HERE
IS PRESUMPTIVELY IN ACCORD WITH THE LANGUAGE OF THE STATUTE AND WITH
THE INTENT OF CONGRESS IN UTILIZING THAT LANGUAGE.  /10/ 

THE DISTRICT COURT, HOWEVER, IGNORED THE ABOVE PORTION OF THE NEW
HAVEN OPINION AND SEIZED ON CERTAIN OTHER LANGUAGE THEREIN TO THE
EFFECT THAT: 

     "IT MAY BE, FOR EXAMPLE, THAT NEITHER A COMPARISON OF

  'OUT-OF-POCKET' NOR A COMPARISON OF 'FULLY DISTRIBUTED' COSTS, AS

  THOSE TERMS ARE DEFINED BY THE COMMISSION, IS THE APPROPRIATE

  METHOD OF DECIDING WHICH OF TWO COMPETING MODES HAS THE COST

  ADVANTAGE ON A GIVEN MOVEMENT."  372 U.S.,AT 760. 

IT COUPLED THIS LANGUAGE WITH ITS INTERPRETATION OF SEC. 15A(3) AS
HAVING THE PURPOSE TO PROMOTE "HARD COMPETITION," AND CONCLUDED THAT
THE COMMISSION HAD THE BURDEN OF JUSTIFYING ANY DEPARTURE FROM USING
OUT-OF-POCKET COST AS THE MEANS OF DETERMINING INHERENT COST
ADVANTAGE. 

WE THINK THAT THE DISTRIC, COURT ERRED IN ITS READING BOTH OF THE
PRIOR NEW HAVEN DECISION AND OF THE EXTENT TO WHICH CONGRESS INTENDED
TO FOSTER INTERMODAL COMPETITION.  WE NOTE FIRST THAT NOTHING IN THE
LANGUAGE OF THE NEW HAVEN OPINION INDICATES A PREFERENCE FOR EITHER OUT
OF-POCKET OR FULLY DISTRIBUTED COSTS AS A MEASURE OF INHERENT
ADVANTAGE; RATHER, ALL THAT IS SAID IS THAT THE APPROPRIATE MEASURE
"MAY BE" NEITHER.  GIVEN THE FACT THAT THE INSERTION OF THE REFERENCE
TO INHERENT ADVANTAGE INTO SEC. 15A(3) CAME ABOUT AT THE INSISTENCE OF
CARRIERS THAT WERE DEMANDING THAT FULLY DISTRIBUTED COSTS BE THE SOLE
MEASURE OF THAT ADVANTAGE, /11/  WE THINK THAT THE CLEAR IMPORT OF THE
FOREGOING STATEMENT IN THE NEW HAVEN OPINION WAS THAT THE COMMISSION
COULD, AFTER DUE CONSIDERATION, DECIDE THAT SOME OTHER MEASURE OF
COMPARATIVE COSTS MIGHT BE MORE SATISFACTORY IN SITUATIONS INVOLVING
INTERMODAL COMPETITION THAN THE ONE IT HAD TRADITIONALLY UTILIZED. 
/12/  THAT IS A FAR CRY FROM SAYING THAT IT MUST.     THE DISTRICT
COURT APPARENTLY BELIEVED THAT THE COMMISSION WAS REQUIRED TO EXERCISE
ITS JUDGMENT IN THE DIRECTION OF USING OUT-OF-POCKET COSTS AS THE RATE
FLOOR BECAUSE THAT WOULD ENCOURAGE "HARD"  /13/  COMPETITION.  WE DO
NOT DENY THAT THE COMPETITION THAT WOULD RESULT FROM SUCH A DECISION
WOULD PROBABLY BE "HARD."  INDEED, FROM THE ADMITTEDLY SCANTY EVIDENCE
IN THIS RECORD, ONE MIGHT WELL CONCLUDE THAT THE COMPETITION RESULTING
FROM OUT-OF-POCKET RATEMAKING BY THE RAILROADS WOULD BE SO HARD AS TO
RUN A CONSIDERABLE NUMBER OF PRESENTLY EXISTING BARGE AND TRUCK LINES
OUT OF BUSINESS.     WE DISAGREE, HOWEVER, WITH THE DISTRICT COURT'S
READING OF CONGRESSIONAL INTENT.  THE LANGUAGE CONTAINED IN SEC. 15A(3)
WAS THE PRODUCT OF A BITTER STRUGGLE BETWEEN THE RAILROADS AND THEIR
COMPETITORS.  ONE OF THE SPECIFIC FEARS OF THOSE COMPETITORS THAT
PROMPTED THE CHANGE FROM THE ORIGINAL LANGUAGE USED IN THE BILL WAS
THAT THE BILL AS IT THEN READ WOULD PERMIT ESSENTIALLY UNREGULATED
COMPETITION BETWEEN ALL THE VARIOUS TRANSPORTATION MODES.  IT WAS
ARGUED WITH CONSIDERABLE FORCE THAT PERMITTING THE RAILROADS TO PRICE
ON AN OUT-OF-POCKET BASIS TO MEET COMPETITION WOULD RESULT IN THE
EVENTUAL COMPLETE TRIUMPH OF THE RAILROADS IN INTERMODAL COMPETITION
BECAUSE OF THEIR ABILITY TO IMPOSE ALL THEIR CONSTANT COSTS /14/  ON
TRAFFIC FOR WHICH THERE WAS NO COMPETITION.  THE ECONOMISTS WHO
TESTIFIED FOR THE RAILROADS IN THIS CASE ALL STATED THAT SUCH AN
UNEQUAL ALLOCATION OF CONSTANT COSTS AMONG SHIPPERS ON THE BASIS OF
DEMAND FOR RAILROAD SERVICE, I.E., ON THE EXISTENCE OF COMPETITION FOR
PARTICULAR TRAFFIC, /15/  WAS ECONOMICALLY SOUND AND DESIRABLE.  APART
FROM THE MERITS OF THIS CONTENTION AS A MATTER OF ECONOMIC THEORY, /16/
IT IS QUITE CLEAR THAT IT WAS A CONTENTION THAT WAS NOT BY ANY MEANS
WHOLLY ACCEPTED BY THE CONGRESS THAT ENACTED SEC. 15A(3).  ONE OF THE
SPECIFIC EXAMPLES GIVEN OF AN UNDESIRABLE PRACTICE, AND ACCEPTED BY THE
MEMBERS OF THE COMMERCE COMMITTEE THAT DRAFTED THE STATUTE AS SUCH, WAS
A CASE IN WHICH CERTAIN RAILROADS HAD ENGAGED IN DAY-TO-DAY
DIFFERENTIAL PRICING ON THE CARRIAGE OF CITRUS FRUIT FROM FLORIDA
DEPENDING ON WHETHER COMPETITIVE CARRIAGE WAS AVAILABLE BY SHIP THAT
DAY.  SEE HEARINGS, SUPRA, AT 153-155.  SIMILAR COMPLAINTS WERE MADE
ABOUT SEASONAL VARIATIONS IN RATES BY RAILROADS DEPENDING ON WHETHER
WINTER CONDITIONS INTERFERED WITH THE CARRIAGE OF FREIGHT BY WATLR. 
ID., AT 162-163.  YET, FROM AN ECONOMIC STANDPOINT, SUCH RATE
VARIATIONS MAKE PERFECT COMPETITIVE SENSE INSOFAR AS MAXIMIZATION OF
RAILROAD REVENUES IS CONCERNED.  /17/ 

THE SIMPLE FACT IS THAT SEC. 15A(3) WAS NOT ENACTED, AS THE
RAILROADS CLAIM, TO ENABLE THEM TO PRICE THEIR SERVICES IN SUCH A WAY
AS TO OBTAIN THE MAXIMUM REVENUE THEREFROM.  THE VERY WORDS OF THE
STATUTE SPEAK OF "PRESERVING)" THE INHERENT ADVANTAGES OF EACH MODE OF
TRANSPORTATION.  IF ALL THAT WAS MEANT BY THE STATUTE WAS TO PREVENT
WHOLLY NONCOMPENSATORY PRICING BY REGULATED CARRIERS, LANGUAGE THAT WAS
A GOOD DEAL CLEARER COULD EASILY HAVE BEEN USED.  AND, AS WE HAVE SHOWN
ABOVE, AT LEAST ONE VERSION OF SUCH CLEAR LANGUAGE WAS PROPOSED BY THE
RAILROADS AND REJECTED BY THE CONGRESS.  IF THE THEORIES ADVANCED BY
THE ECONOMISTS WHO TESTIFIED IN THIS CASE ARE AS COMPELLING AS THEY
SEEM TO FEEL THEY ARE, CONGRESS IS THE BODY TO WHOM THEY SHOULD BE
ADDRESSED.  THE COURTS ARE ILL-QUALIFIED INDEED TO MAKE THE KIND OF
BASIC JUDGMENTS ABOUT ECONOMIC POLICY SOUGHT BY THE RAILROADS HERE. 
WAND IT WOULD BE PARTICULARLY INAPPROPRIATE FOR A COURT TO AWARD A
CARRIER, ON ECONOMIC GROUNDS, RELIEF DENIED IT BY THE LEGISLATURE.  YET
THIS IS PRECISELY WHAT THE DISTRICT COURT HAS DONE IN THIS CASE. 

WE DO NOT MEAN TO SUGGEST BY THE FOREGOING DISCUSSION THAT THE
COMMISSION IS SIMILARLY BARRED FROM MAKING LEGISLATIVE JUDGMENTS ABOUT
MATTERS OF ECONOMIC POLICY.  IT IS PRECISELY TO PERMIT SUCH JUDGMENTS
THAT THE TASK OF REGULATING TRANSPORTATION RATES HAS BEEN ENTRUSTED TO
A SPECIALIZED ADMINISTRATIVE AGENCY RATHER THAN TO COURTS OF GENERAL
JURISDICTION.  OF COURSE, THE COMMISSION MUST OPERATE WITHIN THE LIMITS
SET OUT BY CONGRESS IN ENACTING THE LEGISLATION IT ADMINISTERS.  BUT
NOTHING WE SAY HERE SHOULD BE TAKEN AS EXPRESSING ANY VIEW AS TO THE
EXTENT THAT SEC. 15A(3) CONSTITUTES A CATEGORICAL COMMAND TO THE ICC TO
USE FULLY DISTRIBUTED COSTS AS THE ONLY MEASURE OF INHERENT ADVANTAGE
IN INTERMODAL RATE CONTROVERSIES.  AS WAS STATED IN THE NEW HAVEN CASE,
IT "MAY BE" THAT AFTER DUE CONSIDERATION ANOTHER METHOD OF COSTING WILL
PROVE TO BE PREFERABLE IN SUCH SITUATIONS AS THE PRESENT ONE.  ALL WE
HOLD HERE IS THAT THE INITIAL DETERMINATION OF THAT QUESTION IS FOR THE
COMMISSION. 

IT IS IN THIS CONNECTION THAT THE TIMING OF THIS CASE TAKES ON
PARTICULAR SIGNIFICANCE.  WE HAVE ALREADY OBSERVED THAT THE ICC HAS
PRESENTLY PENDING BEFORE IT A BROAD-SCALE EXAMINATION OF THE WHOLE
QUESTION OF THE COST STANDARDS TO BE USED WHERE COMPARISONS OF
INTERMODAL COST ADVANTAGES ARE REQUIRED.  RATHER THAN AWAIT THE RESULT
OF THAT RULEMAKING PROCEEDING, THE RAILROAD APPELLEES HERE DETERMINED
TO ATTEMPT TO RAISE PRECISELY THE SAME ISSUES IN A MUCH MORE
CIRCUMSCRIBED PROCEEDING BY UNILATERALLY REDUCING THEIR RATES ON ONE
ITEM OF TRAFFIC.  THE DISTRICT COURT TOTALLY IGNORED THE TEMPORARY
NATURE OF THE ICC'S ACTION IN THIS CASE AND THE PENDENCY OF THE
RULEMAKING PROCEEDING.  INSTEAD, IT WENT AHEAD AND, IN THE GUISE OF
RESOLVING THIS PARTICULAR CONTROVERSY OVER A SINGLE RATE REDUCTION,
RENDERED A DECISION WHICH, FOR ALL PRACTICAL PURPOSES, MADE THE
RULEMAKING PROCEEDING MOOT.  WHILE THERE MIGHT BE SOME JUSTIFICATION
FOR SUCH A COURSE WHEN THE APPLICABLE STATUTE CLEARLY REQUIRES THE
AGENCY TO ARRIVE AT A GIVEN RESULT, THIS CASE IS EMPHATICALLY NOT SUCH
A SITUATION.  AS THIS COURT STATED IN NEW HAVEN, "(THESE AND OTHER
SIMILAR QUESTIONS SHOULD BE LEFT FOR INITIAL RESOLUTION TO THE
COMMISSION'S INFORMED JUDGEMENT."  372 U.S.,AT 761. 

THE COMMISSION STATED HERE THAT IT INTENDED TO EXERCISE ITS INFORMED
JUDGMENT BY CONSIDERING THE ISSUES PRESENTED HERE IN THE CONTEXT OF A
RULEMAKING PROCEEDING WHERE IT COULD EVALUATE THE ALTERNATIVES ON THE
BASIS OF A CONSIDERATION OF THE EFFECTS OF A DEPARTURE FROM A FULLY
DISTRIBUTED COST STANDARD ON THE TRANSPORTATION INDUSTRY AS A WHOLE. 
UNTIL THAT EVALUATION WAS COMPLETED, THE COMMISSION TOOK THE POSITION
THAT IT WOULD CONTINUE TO FOLLOW THE PRACTICE IT HAD OBSERVED IN THE
PAST OF DEALING WITH INDIVIDUAL RATE REDUCTIONS ON A FULLY DISTRIBUTED
COST BASIS.  THE DISTRICT COURT, IN EFFECT, REFUSED TO PERMIT THE
COMMISSION TO DEAL WITH THE COMPLEX PROBLEMS OF DEVELOPING A GENERAL
STANDARD OF COSTING TO USE IN DETERMINING INHERENT ADVANTAGE IN
SITUATIONS INVOLVING INTERMODAL COMPETITION IN THE BROAD CONTEXT OF A
RULEMAKING PROCEEDING.  INSTEAD, IT ORDERED THE COMMISSION TO RESOLVE
THOSE PROBLEMS IN THE NARROW CONTEXT OF THIS INDIVIDUAL RATE REDUCTION
PROCEEDING. 

WE HAVE ALREADY OBSERVED THAT THE DISTRICT COURT ERRED IN
INTERPRETING THE NEW HAVEN DECISION TO REQUIRE THE COMMISSION TO PERMIT
OUT-OF-POCKET PRICING IN MOST INSTANCES.  GIVEN THE FACT THAT NEW HAVEN
INDICATED THAT THE COMMISSION WAS TO EXERCISE ITS INFORMED JUDGMENT IN
ULTIMATELY DETERMINING WHAT METHOD OF COSTING WAS PREFERABLE, IT IS
CLEAR THAT THE DISTRICT COURT ALSO ERRED IN REFUSING TO PERMIT THE
COMMISSION TO EXERCISE THAT JUDGMENT IN A PROCEEDING IT REASONABLY
BELIEVED WOULD PROVIDE THE MOST ADEQUATE RECORD FOR THE RESOLUTION OF
THE PROBLEMS INVOLVED.  WE CAN SEE NO JUSTIFICATION FOR DENYING THE
COMMISSION REASONABLE LATITUDE TO DECIDE WHERE IT WILL RESOLVE THESE
COMPLEX ISSUES, IN ADDITION TO HOW IT WILL RESOLVE THEM.  THE ACTION BY
THE DISTRICT COURT HERE NOT ONLY DEPRIVES THE COMMISSION OF THE
OPPORTUNITY TO MAKE THE INITIAL RESOLUTION OF THE ISSUES BUT ALSO
PREVENTS IT FROM DOING SO IN A MORE SUITABLE CONTEXT. 

THIS COURT HAS JUST RECENTLY HELD THAT THE FEDERAL POWER COMMISSION
HAD THE AUTHORITY TO FIX RATES ON AN AREA-WIDE BASIS RATHER THAN ON AN
INDIVIDUAL PRODUCER BASIS AND THAT, IN ORDER TO MAKE SUCH A PROCEDURE
FEASIBLE, IT HAD STATUTORY AUTHORITY TO IMPOSE A MORATORIUM UPON RATE
INCREASES BY PRODUCERS FOR A PERIOD OF 2 1/2 YEARS AFTER THE SETTING OF
THE AREA RATE.  PERMIAN BASIN AREA RATE CASES, 390 U.S. 747 (1968). 
THE BASIS FOR THIS HOLDING WAS THE PRINCIPLE THAT THE "LEGISLATIVE
DISCRETION IMPLIED IN THE RATE MAKING POWER NECESSARILY EXTENDS TO THE
ENTIRE LEGISLATIVE PROCESS, EMBRACING THE METHOD USED IN REACHING THE
LEGISLATIVE DETERMINATION AS WELL AS THAT DETERMINATION ITSELF."  ID.,
AT 776.  THAT PRINCIPLE IS EQUALLY APPLICABLE TO RATE REGULATION
CARRIED OUT BY THE ICC, ESPECIALLY WHERE, AS HERE, THE DETERMINATION
MADE ON AN INTERIM BASIS IS IN GENERAL ACCORD WITH BOTH THE LEGISLATIVE
HISTORY OF THE STATUTE INVOLVED AND THE RESULTS IN PRIOR CASES DECIDED
BY THE AGENCY.  ACCORDINGLY, WE HOLD THAT THE COMMISSION HAD AMPLE
AUTHORITY TO DECLINE TO DEAL WITH THE BROAD CONTENTIONS ADVANCED BY THE
RAILROADS IN THIS INDIVIDUAL RATE CASE AND THAT THE DISTRICT COURT
ERRED IN FAILING TO RECOGNIZE THAT AUTHORITY. 

THE DISTRICT COURT ALSO OBJECTED TO THE FAILURE OF THE COMMISSION TO
EXPLAIN WHY IT PERMITTED OUT-OF-POCKET RATEMAKING WHERE THE COMPETING
CARRIER WAS UNREGULATED AND NOT WHERE THE COMPETITOR WAS REGULATED. 
THE SHORT ANSWER TO THIS IS THAT SEC. 15A(3) BY ITS OWN TERMS APPLIES
ONLY TO "MODES OF TRANSPORTATION SUBJECT TO THIS ACT," WHICH BY
DEFINITION MEANS REGULATED CARRIERS.  AS A RESULT ANY ARBITRARINESS
THAT MAY FLOW FROM THE DISTINCTION RECOGNIZED BY THE COMMISSION BETWEEN
REGULATED AND UNREGULATED CARRIERS IN SITUATIONS OF INTERMODAL
COMPETITION IS THE CREATION OF CONGRESS, NOT OF THE COMMISSION. 

THE DISTRICT COURT ALSO APPEARS TO HAVE HELD THAT THE COMMISSION DID
NOT ADEQUATELY EXPLAIN HOW THE RATE SET BY THE RAILROADS WOULD IMPAIR
OR DESTROY THE BARGE-TRUCK INHERENT ADVANTAGE.  YET THE COMMISSION
POINTED OUT THAT THE PRINCIPLE PROPOSED BY THE RAILROADS WOULD, IF
RECOGNIZED, PERMIT THE RAILROADS TO CAPTURE ALL THE TRAFFIC HERE THAT
IS PRESENTLY CARRIED BY THE BARGE-TRUCK COMBINATION BECAUSE THE
RAILROADS' OUT-OF-POCKET COSTS WERE LOWER THAN THOSE OF THE COMBINED
BARGE-TRUCK SERVICE.  THE DISTRICT COURT SEEMS TO HAVE BEEN IMPRESSED
BY THE FACT THAT THE RAILROADS WERE MERELY MEETING THE BARGE-TRUCK
RATE, DESPITE THE UNCONTROVERTED EVIDENCE THAT GIVEN EQUAL RATES ALL
TRAFFIC WOULD MOVE BY TRAIN.  GIVEN A SERVICE ADVANTAGE, IT SEEMS
SOMEWHAT UNREALISTIC TO SUGGEST THAT RATE PARITY DOES NOT RESULT IN
UNDERCUTTING THE COMPETITOR THAT DOES NOT POSSESS THE SERVICE
ADVANTAGE.  IN ANY EVENT, REGARDLESS OF THE LABEL USED, IT SEEMS SELF
EVIDENT THAT A CARRIER'S "INHERENT ADVANTAGE" OF BEING THE LOW COST
MODE ON A FULLY DISTRIBUTED COST BASIS IS IMPAIRED WHEN A COMPETITOR
SETS A RATE THAT FORCES THE CARRIER TO LOWER ITS OWN RATE BELOW ITS
FULLY DISTRIBUTED COSTS IN ORDER TO RETAIN THE TRAFFIC.  IN ADDITION,
WHEN A RATE WAR WOULD BE LIKELY TO EVENTUALLY RESULT IN PUSHING RATES
TO A LEVEL AT WHICH THE RATES SET WOULD NO LONGER PROVIDE A FAIR
PROFIT, THE COMMISSION HAS TRADITIONALLY, AND PROPERLY, TAKEN THE
POSITION THAT SUCH A RATE STRUGGLE SHOULD BE PREVENTED FROM COMMENCING
IN THE FIRST PLACE.  CERTAINLY THERE IS NO SUGGESTION HERE THAT THE
RATE CHARGED BY THE BARGE-TRUCK COMBINATION WAS EXCESSIVE AND IN NEED
OF BEING DRIVEN DOWN BY COMPETITIVE PRESSURE.  WE CONCLUDE, THEREFORE,
THAT THE COMMISSION ADEQUATELY ARTICULATED ITS REASONS FOR DETERMINING
THAT THE RAILROADS'  RATE WOULD IMPAIR THE INHERENT ADVANTAGE ENJOYED
BY THE BARGE-TRUCK SERVICE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASES ARE
REMANDED TO THAT COURT WITH DIRECTIONS TO ENTER A JUDGMENT AFFIRMING
THE COMMISSION'S ORDER. 

    IT IS SO ORDERED. 

/1/  THE UNITED STATES, A STATUTORY DEFENDANT IN THE DISTRICT COURT,
SUPPORTED THE RAILROADS' POSITION THERE AND HAS PARTICIPATED IN SUPPORT
OF THEM IN THE PROCEEDINGS BEFORE THIS COURT. 

/2/  THE TERM "INHERENT ADVANTAGE" COMES FROM THE NATIONAL
TRANSPORTATION POLICY, 49 U.S.C. PRECEDING SEC. 1, AND IS INCORPORATED
BY REFERENCE INTO SEC. 15A(3) OF THE INTERSTATE COMMERCE ACT.  THE
MEANING OF THE TERM IS THE CENTRAL ISSUE IN THESE CASES AND WILL BE
DISCUSSED IN CONSIDERABLE DETAIL, INFRA, AT 579-594. 

/3/  FULLY DISTRIBUTED COSTS ARE DEFINED BROADLY BY THE ICC AS THE
"OUT-OF-POCKET COSTS PLUS A REVENUE-TON AND REVENUE TON-MILE
DISTRIBUTION OF THE CONSTANT COSTS, INCLUDING DEFICITS, (THAT) INDICATE
THE REVENUE NECESSARY TO A FAIR RETURN ON THE TRAFFIC, DISREGARDING
ABILITY TO PAY."  NEW AUTOMOBILES IN INTERSTATE COMMERCE, 259 I.C.C.
475, 513 (1945). 

/4/  THE LONG-TERM OUT-OF-POCKET COSTS WERE COPPUTED UNDER AN ICC
SPONSORED FORMULA WHICH GENERALLY HOLDS THAT 80% OF RAIL OPERATING
EXPENSES, RENTS AND TAXES ARE OUT-OF-POCKET IN THAT THEY WILL VARY WITH
TRAFFIC.  TO THIS IS ADDED A RETURN ELEMENT OF 4% ON A PORTION OF THE
INVESTMENT (ALL THE EQUIPMENT AND 50% OF THE ROAD PROPERTY), WHICH IS
APPORTIONED TO ALL TRAFFIC ON A PROPORTIONAL BASIS.  COMPARE N. 3,
SUPRA. 

/5/  THIS FIGURE IS NOT PRECISELY A COST FIGURE.  RATHER IT IS THE
BARGE FULLY DISTRIBUTED COST, PLUS THE CHARGE MADE FOR THE TRUCK
PORTION OF THE SERVICE AND THE CHARGE FOR BARGE-TRUCK TRANSFER.  SINCE
ALL PARTIES SEEM WILLING TO TREAT THE FIGURE AS ONE OF FULLY
DISTRIBUTED COST FOR THE BARGE-TRUCK COMBINATION, NO FURTHER MENTION
WILL BE MADE OF ITS DISPARATE ELEMENTS. 

/6/  BECAUSE THE BARGE-TRUCK RATE OF $5.11 WAS BELOW THE FULLY
DISTRIBUTED COST OF THE SERVICE, DIVISION 2 OF THE ICC INITIALLY
CONCLUDED THAT THE BARGE-TRUCK COMBINATION HAD FORFEITED ITS RIGHT TO
CLAIM THAT ITS INHERENT ADVANTAGE OF LOER FULLY DISTRIBUTED COST WAS
BEING IMPAIRED BY THE RAILROADS' SETTING OF A MATCHING RATE.  ON
RECONSIDERATION, THE FULL COMMISSION REVERSED THIS RULING BY DIVISION
2, OBSERVING THAT THERE WAS NO EVIDENCE THAT THE FAILURE OF THE BARGE
TRUCK RATE TO EQUAL FULLY DISTRIBUTED COST WAS DUE TO ANYTHING BUT THE
BARGE LINES' IGNORANCE OF THE PRECISE AMOUNT OF THEIR FULLY DISTRIBUTED
COST FOR THIS SERVICE.  THIS DETERMINATION IS NOT CHALLENGED HERE BY
ANY PARTY AND WE EXPRESS NO OPINION ON IT.     /7/  OUT-OF-POCKET COSTS
HAVE BEEN REGARDED GENERALLY IN THESE CASES AS EQUIVALENT TO WHAT
ECONOMISTS REFER TO AS "INCREMENTAL" OR "MARGINAL" COSTS.  ACCORDINGLY
WE SHALL EQUATE THE TERMS LIKEWISE, ALTHOUGH WE HAVE NO INTENTION OF
VOUCHING FOR THE ACCURACY OF THAT EQUATION AS A MATTER OF PURE
ECONOMICS.  CF. N. 4, SUPRA.  SUCH COSTS ARE DEFINED GENERALLY AS THE
COSTS SPECIFICALLY INCURRED BY THE ADDITION OF EACH NEW UNIT OF OUTPUT
AND DO NOT INCLUDE ANY ALLOCATION TO THAT UNIT OF PRE-EXISTING OVERHEAD
EXPENSES. 

/8/  A RATE IS COMPENSATORY IN THE SENSE USED BY THE DISTRICT COURT
ANY TIME IT IS GREATER THAN THE OUT-OF-POCKET COST OF THE SERVICE FOR
WHICH THE RATE IS SET.  THE TERM FULLY COMPENSATORY IS SOMETIMES USED
TO DESCRIBE A RATE IN EXCESS OF FULLY DISTRIBUTED COSTS. 

/9/  AN ILLUSTRATION OF SUCH A CASE IS THE DECISION OF THE ICC THAT
WAS REVERSED IN THE NEW HAVEN CASE.  THERE THE ICC HAD REFUSED TO
PERMIT THE RAILROADS TO SET A RATE WHICH WAS NOT ONLY ABOVE THEIR OUT
OF-POCKET COST FOR THE SERVICE BUT WAS ALSO ABOVE THEIR FULLY
DISTRIBUTED COST FOR APPROXIMATELY HALF OF THE MOVEMENTS INVOLVED.  THE
COMMISSION DID NOT RELY ON A DETERMINATION OF WHICH OF THE COMPETING
CARRIERS HAD THE INHERENT ADVANTAGE AS TO COSTS, BUT INSTEAD DECIDED
BROADLY THAT THE RATE WOULD EVENTUALLY DESTROY THE COASTWISE SHIPPING
INDUSTRY AND THEREFORE SHOULD BE PROHIBITED.  THIS COURT HELD THAT, IN
GENERAL, THE ICC WAS REQUIRED TO DETERMINE WHICH OF THE COMPETING
CARRIERS POSSESSED THE INHERENT ADVANTAGE BEFORE A RATE COULD BE
ORDERED CANCELLED IN ORDER TO PROTECT A CARRIER'S PRESENT RATE.  WHILE
THE COURT INDICATED THAT THE NATION'S DEFENSE NEEDS MIGHT PERMIT
PROTECTION OF EVEN A HIGHER COST CARRIER IN SOME CASES, IT HELD THAT
THE ICC HAD NOT ADEQUATELY SHOWN NEW HAVEN TO BE SUCH A CASE. 

/10/  THE APPELLEES ALSO CONTEND, AND THE DISTRICT COURT HELD, THAT
THE STATEMENTS IN THE LEGISLATIVE HISTORY OF SEC. 15A(3) THAT CONGRESS
INTENDED TO COMPEL THE COMMISSION TO RETURN TO THE APPROACH TO
COMPETITIVE RATE REGULATION IT HAD UTILIZED IN THE CASE OF NEW
AUTOMOBILES IN INTERSTATE COMMERCE, 259 I.C.C. 475 (1945), INDICATE
THAT OUT-OF-POCKET RATEMAKING WAS INTENDED TO BE THE RULE IN SUCH
CASES.  HOWEVER, THE PASSAGE QUOTED FROM NE, AUTOMOBILES SIMPLY STATES
THAT THE RATES OF ONE MODE OF TRANSPORTATION SHOULD NOT BE HELD UP
MERELY TO PROTECT COMPETING MODES.  IT SAYS NOTHING AT ALL ABOUT
INHERENT ADVANTAGES. 

THE RAILROADS ARGUE THAT THE BASIC THRUST OF THE NEW AUTOMOBILES
CASE WAS TO COMPARE COSTS ON AN OUT-OF-POCKET BASIS.  AND IT IS TRUE
THAT MANY OF THE COMPARISONS THERE MADE WERE ON THAT BASIS.  HOWEVER,
AN EXAMINATION OF WHAT THE COMMISSION ACTUALLY SAID AND DID IN NEW
AUTOMOBILES COMPELS THE CONCLUSION THAT NO FLAT RULE OF COMPARISON OF
OUT-OF-POCKET COSTS WAS THERE LAID DOWN.  FOR EXAMPLE, THE COMMISSION
CONCLUDED THAT ON THE BASIS OF A COMPARISON WITH THE RAILROADS'  OUT-OF
POCKET COSTS FOR SHIPPING AUTOMOBILES, THE TRUCKERS WERE THE LOWER COST
MODE ONLY UP TO 120 MILES.  ON A FULLY DISTRIBUTED COST COMPARISON THE
TRUCKERS WERE THE LOWER COST MODE UP TO 230 MILES.  259 I.C.C.,AT 528. 
AFTER DISCUSSING AT SOME LENGTH THE CONCEPT OF REASONABLE MINIMUM
RATES, THE COMMISSION ULTIMATELY CONCLUDED THAT GENERALLY THE TRUCKERS
HAD THE COST ADVANTAGE AT DISTANCES UP TO 200 MILES AND THAT THE
RAILROADS SHOULD BE PERMITTED TO SET RATES THAT WOULD PERMIT THEM TO
COMPETE FOR THE LONGER-HAUL TRAFFIC.  259 I.C.C.,AT 539. 

GIVEN THE FACT THAT THE COMMISSIO; WAS DEALING WITH AN ATTEMPT BY
THE TRUCKERS TO GET IT TO HOLD UP RAILROAD RATES FOR DISTANCES EVEN
GREATER THAN 600 MILES, IT IS NOT SURPRISING THAT THE ISSUE OF
MEASURING INHERENT ADVANTAGE AS BETWEEN FULLY DISTRIBUTED AND OUT-OF
POCKET COSTS DID NOT RECEIVE DETAILED CONSIDERATION, SINCE BY EITHER
METHOD THE TRUCKERS WERE THE LOW COST MODE ONLY UP TO A LITTLE MORE
THAN 200 MILES.  THUS IT CANNOT FAIRLY BE SAID THAT NEW AUTOMOBILES
REPRESENTS A CONSIDERED CHOICE BETWEEN THE TWO METHODS OF COST
COMPARISON.  RATHER WHAT IT STANDS FOR IS THE PRINCIPLE EMPHASIZED IN
THE NEW HAVEN CASE THAT THE RATES OF ONE MODE SHOULD NOT BE HELD UP TO
PROTECT THE REVENUES OF A COMPETITOR WITHOUT REGARD TO WHICH IS THE LOW
COST CARRIER. 

IN ANY EVENT, WHAT MATTERS SO FAR AS SEC. 15A(3) IS CONCERNED IS NOT
WHAT THE COMMISSION MEANT IN NEW AUTOMOBILES BUT WHAT CONGRESS THOUGHT
IT MEANT IN 1958 WHEN THE SECTION WAS ENACTED.  AS WE HAVE SHOWN IN THE
TEXT OF THE OPINION ABOVE, CONGRESS CONSIDERED NEW AUTOMOBILES TO STAND
FOR THE PRINCIPLE THAT THE RATE STRUCTURE OF A COMPETING MODE SHOULD
NOT BE PROTECTED BY THE COMMISSION SIMPLY TO PREVENT IT FROM LOSING
BUSINESS THROUGH COMPETITION. 

/11/  THE DISTRICT COURT ALSO RELIED ON THE REJECTION OF A SIMILAR
PROPOSAL BY TRUCK AND BARGE INTERESTS THAT FULLY DISTRIBUTED COSTS BE
THE FLOOR FOR REASONABLE MINIMUM RATES IN THE COURSE OF THE ENACTMENT
OF THE NATIONAL TRANSPORTATION POLICY IN 1940.  IT SEEMS CLEAR,
HOWEVER, THAT ONE OF THE MAJOR REASONS FOR THE REJECTION OF THE SO
CALLED MILLER-WADSWORTH AMENDMENT BY CONGRESS WAS THE POSSIBILITY THAT
ITS ENACTMENT WOULD PREVENT LOW-VALUE INDUSTRIAL AND AGRICULTURAL
COMMODITIES FROM BEING CARRIED AT A RATE LOW ENOUGH TO MAKE IT
ECONOMICALLY FEASIBLE TO SHIP THEM IN INTERSTATE COMMERCE.  SEE
GENERALLY NELSON, RATE-MAKING IN TRANSPORTATION-- CONGRESSIONAL INTENT,
1960 DUKEL.J. 221, 228-238. 

/12/  WHILE IT IS TRUE THAT, FOR VARYING AND SOMETIMES UNEXPLAINED
REASONS, THE COMMISSION HAS NOT INVARIABLY USED FULLY DISTRIBUTED COSTS
AS THE BASIS FOR COST COMPARISONS IN SITUATIONS INVOLVING INTERMODAL
COMPETITION, SEE 268 F.SUPP.,AT 78, IT IS ALSO TRUE THAT IT HAS
GENERALLY DECLARED FULLY DISTRIBUTED COST COMPARISONS TO BE
PREFERABLE.  THUS IN THE HEARINGS ON THE BILL THAT WAS TO BECOME SEC.
15A(3), COMMISSIONER FREAS STATED: 

"WHENEVER CONDITIONS PERMIT, GIVEN TRANSPORTATION SHOULD RETURN THE
FULL COST OF PERFORMING CARRIER SERVICE . . . . IN MANY INSTANCES,
HOWEVER, THE FULL COST OF THE LOW-COST FORM OF TRANSPORTATION EXCEEDS
THE OUT-OF-POCKET COST OF ANOTHER.  IF, THEN, WE ARE REQUIRED TO ACCEPT
THE RATES OF THE HIGH COST CARRIER MERELY BECAUSE THEY EXCEED ITS OUT
OF-POCKET COSTS, WE SEE NO WAY OF PRESERVING THE INHERENT ADVANTAGES OF
THE LOW COST CARRIER."  QUOTED AT 372 U.S.,AT 755. 

/13/  THE DISTRICT COURT ASCERTAINED THE LEGISLATIVE PURPOSE TO
PROMOTE "HARD COMPETITION" FROM THE FOLLOWING PASSAGE FROM THE NEW
HAVEN OPINION: 

"SECTION 15A(3), IN OTHER WORDS, MADE IT CLEAR THAT SOMETHING MORE
THAN EVEN HARD COMPETITION MUST BE SHOWN BEFORE A PARTICULAR RATE CAN
BE DEEMED UNFAIR OR DESTRUCTIVE.  THE PRINCIPAL PURPOSE OF THE
REFERENCE TO THE NATIONAL TRANSPORTATION POLICY, AS WE HAVE SEEN, WAS
TO PREVENT A CARRIER FROM SETTING A RATE WHICH WOULD IMPAIR OR DESTROY
THE INHERENT ADVANTAGES OF A COMPETING CARRIER, FOR EXAMPLE, BY SETTING
A RATE, BELOW ITS OWN FULLY DISTRIBUTED COSTS, WHICH WOULD FORCE A
COMPETITOR WITH A COST ADVANTAGE ON PARTICULAR TRANSPORTATION TO
ESTABLISH AN UNPROFITABLE RATE IN ORDER TO ATTRACT TRAFFIC."  372
U.S.,AT 759. 

SINCE THE SENTENCE FOLLOWING THE TERM "HARD COMPETITION" DESCRIBED
AN EXAMPLE OF THE COMPETITION PROHIBITED BY THE NATIONAL TRANSPORTATION
POLICY THAT IS IDENTICAL TO THE FACTS OF THE PRESENT CASE, THE DISTRICT
COURT'S USE OF THE TERM TO REVERSE THE ICC'S DECISION HERE SEEMS
SOMEWHAT PECULIAR. 

/14/  CONSTANT COSTS ARE, BROADLY SPEAKING, THOSE ITEMS OF EXPENSE
WHICH ARE INCURRED BY A BUSINESS REGARDLESS OF THE SCALE OF ITS
OPERATIONS.  THEY ARE ESSENTIALLY THE EQUIVALENT TO WHAT IS COMMONLY
CALLED OVERHEAD EXPENSES.  FOR RAILROADS CONSTANT COSTS INCLUDE SUCH
ITEMS AS REAL ESTATE TAXES, CERTAIN RENTS, MUCH RIGHT-OF-WAY
MAINTENANCE EXPENSE AND SIMILAR EXPENSES. 

/15/  UNEQUAL ALLOCATION OF CONSTANT COSTS AS AN ELEMENT OF THE RATE
CHARGED ALSO OCCURS COMMONLY WHERE A BULKY COMMODITY IS SO LOW VALUED
ON A PER TON BASIS THAT SETTING A RATE BY REFERENCE TO THE FULLY
DISTRIBUTED COST OF CARRYING THE COMMODITY WOULD MAKE IT UNECONOMIC TO
SHIP IT.  SEE N. 11, SUPRA. 

/16/  THIS COURT IS NOT PARTICULARLY SUITED TO PASS ON THE MERITS OF
THE ECONOMIC ARGUMENTS MADE BY THE RAILROADS' EXPERT WITNESSES IN THESE
CASES.  MOREOVER, THEIR SOUNDNESS IS NOT ESPECIALLY RELEVANT TO THE
RESULT WE REACH IN THE PRESENT POSTURE OF THIS CO4TROVERSY.  HOWEVER,
BECAUSE THE ECONOMIC TESTIMONY IS EMPHASIZED SO HEAVILY BY BOTH THE
RAILROADS AND THE UNITED STATES IN THEIR ARGUMENTS TO US, WE SHALL
VENTURE A FEW OBSERVATIONS ON IT. 

MOST OF THE ECONOMIC TESTIMONY IS DIRECTED TOWARDS PROVING THAT THE
UTILIZATION OF OUT-OF-POCKET COSTS IN SETTING RATES PERMITS THE
RAILROADS TO MAXIMIZE THEIR PROFITS.  TO THE EXTENT THAT OUT-OF-POCKET
COSTS ARE ACCURATELY COMPUTED, THAT PROPOSITION APPEARS
UNCONTROVERTIBLE.  THE ECONOMISTS THEN GO ON TO ARGUE, IN EFFECT, THAT
WHAT IS GOOD FOR THE RAILROADS IS GOOD FOR THE COUNTRY.  THIS ARGUMENT
IS DEVELOPED AS FOLLOWS.  WHENEVER A RAILROAD LOWERS ITS RATE, THE
SHIPPER TO WHOM THAT RATE IS AVAILABLE BENEFITS.  AS LONG AS THE RATE
IS ABOVE THE OUT-OF-POCKET COST OF THE SERVICE, THE RAILROAD BENEFITS
BY OBTAINING THE PROFITS FROM TRAFFIC IT FORMERLY DID NOT CARRY.  THE
FACT THAT A COMPETING CARRIER MAY LOSE THE REVENUE IT PREVIOUSLY EARNED
BY CARRYING THE TRAFFIC IS IMMATERIAL BECAUSE THE RAILROAD'S ABILITY TO
MAKE A PROFIT BY CHARGING THE LOWER RATE SHOWS THAT IT IS, IN SOME
SENSE, MORE EFFICIENT THAN ITS COMPETITOR. 

IN ORDER TO EVALUATE THE FOREGOING ARGUMENT CERTAIN OTHER ASPECTS OF
A RAILROAD'S FULLY DISTRIBUTED COSTS ARE SUBSTANTIALLY GREATER THAN ITS
OUT-OF-POCKET COSTS ON ANY GIVEN TRAFFIC IS, INTER ALIA, BECAUSE
CERTAIN CONSTANT COSTS, SEE N. 14, SUPRA, ARE ALLOCATED TO THAT TRAFFIC
ON A PROPORTIONAL BASIS DESPITE THE FACT THAT THOSE COSTS WILL BE
INCURRED BY THE RAILROAD WHETHER IT CARRIES THE PARTICULAR TRAFFIC OR
NOT.  THESE CONSTANT COSTS MUST BE EARNED IF THE RAILROAD IS TO STAY IN
BUSINESS.  THEY ARE ALLOCATED PROPORTIONALLY ON THE THEORY THAT, ALL
OTHER FACTORS BEING EQUAL, SUCH AN ALLOCATION WILL BE THE BEST WAY OF
ASSURING THAT EACH SHIPPER CONTRIBUTES HIS FAIR SHARE TOWARDS COVERING
THE CONSTANT COSTS.  OBVIOUSLY TO THE EXTENT THAT ANY SHIPPER PAYS MORE
OF THE CONSTANT COSTS THAN ANOTHER WITHOUT ANY GOOD REASON FOR SO DOING
THAT SHIPPER IS, IN SOME SENSE, DISCRIMINATED AGAINST. 

THE RAILROAD ECONOMISTS POINT OUT THAT, BECAUSE CONSTANT COSTS BY
DEFINITION ARE NOT ATTRIBUTABLE TO THE CARRIAGE OF ANY PARTICULAR
TRAFFIC, IT IS TO SOME EXTENT ARBITRARY TO ALLOCATE THEM TO PARTICULAR
TRAFFIC.  THEY FURTHER CONTEND THAT ALL SHIPPERS PRESENTLY UTILIZING A
RAILROAD'S SERVICES ARE BENEFITED WHEN THE RAILROAD OBTAINS ADDITIONAL
TRAFFIC AT A PROFIT TO IT, BECAUSE THAT PROFIT CAN BE USED TO PAY A
PORTION OF THE CONSTANT COSTS CURRENTLY BEING CHARGED WHOLLY TO THEM. 
THE FACT THAT CHARGING A RATE LESS THAN ITS FULLY DISTRIBUTED COST OF
CARRYING THE TRAFFIC RESULTS IN THE SHIPPER OF THAT FREIGHT PAYING A
DISPROPORTIONALLY LOW SHARE OF THE RAILROAD'S CONSTANT COSTS IS
CONSIDERED TO BE OUTWEIGHED BY THE OVERALL BENEFIT TO THE OTHER
SHIPPERS OF HAVING THE ABSOLUTE AMOUNT BORNE BY THEM OF THE CONSTANT
COSTS DECREASED BY THE PROFIT EARNED ON THE TRAFFIC. 

IT SEEMS APPARENT, HOWEVER, THAT IN A CASE WHERE THE SOLE REASON
THAT A RATE BELOW FULLY DISTRIBUTED COST IS NECESSARY TO ATTRACT SUCH
ADDITIONAL TRAFFIC IS THE COMPETITION OF ANOTHER MODE OF
TRANSPORTATION, THE CONTINUED EXISTENCE OF THAT COMPETITION IS ALSO THE
SOLE ECONOMIC JUSTIFICATION FOR MAINTAINING THE RATE AT A RELATIVE
LEVEL THAT FAVORS ONE SHIPPER OVER OTHERS.  IF THE COMPETING CARRIER IS
DRIVEN OUT OF BUSINESS BECAUSE OF ITS INABILITY TO MATCH THE RAILROAD'S
LOWER RATES SET ON AN OUT-OF-POCKET BASIS, THE ECONOMIC JUSTIFICATION
FOR PERMITTING THE CONTINUATION OF THOSE LOW RATES WOULD SEEM TO
DISAPPEAR.  YET THE RAILROAD ECONOMISTS ASSERT THAT IN SUCH A SITUATION
THE RAILROAD SHOULD BE REQUIRED BY THE ICC TO MAINTAIN THE RATE AT ITS
ORIGINAL LEVEL.  THE OBVIOUS REASON FOR THIS POSITION IS THAT
PERMITTING A RAILROAD TO RAISE ITS RATES ONCE IT HAD EFFECTIVELY
DESTROYED A COMPETITOR IN ONE AREA WOULD ENABLE IT TO PRICE ON AN OUT
OF-POCKET BASIS IN COMPETITION WITH ANOTHER CARRIER IN A DIFFERENT AREA
THEREAFTER AND, IN TURN, DRIVE THAT CARRIER OUT OF BUSINESS. 
EVENTUALLY A RAILROAD COULD ELIMINATE ALL ITS COMPETITORS WHOSE OUT-OF
POCKET COSTS WERE HIGHER THAN ITS OWN.  AFTER THIS WAS ACCOMPLISHED THE
RAILROAD COULD RE-PRICE ALL ITS SERVICES ON A FULLY DISTRIBUTED COST
BASIS THEREBY ELIMINATING ALL DISCRIMINATION BETWEEN ITS SHIPPER
CUSTOMERS. 

OF COURSE, THE SHIPPERS FORMERLY SERVED BY COMPETING MODES AT RATES
PROFITABLE TO THEM BUT LOWER THAN THE RAILROAD'S FULLY DISTRIBUTED
COSTS WOULD AT THAT POINT HAVE LOST THE ADVANTAGE OF THE LOW COST
SERVICE.  THE ONLY WAY TO PERPETUATE THE ADVANTAGE PREVIOUSLY ENJOYED
BY THOSE SHIPPERS WOULD BE, AS THE RAILROAD ECONOMISTS RECOGNIZED,
ARTIFICIALLY TO MAINTAIN THEIR RATES AT THE FORMER LEVEL DESPITE THE
ABSENCE OF PRESENT ECONOMIC JUSTIFICATION FOR SUCH A LOW RATE.  (IT IS
TRUE THAT WERE THE BARRIERS TO RE-ENTRY INTO THE TRANSPORTATION MARKET
LOW, AS ASSERTED BY THE RAILROAD ECONOMISTS, THE POTENTIAL COMPETITION
CREATED BY THE POSSIBILITY OF SUCH RE-ENTRY BY A COMPETING MODE COULD
FURNISH AN ECONOMIC JUSTIFICATION FOR THE CONTINUANCE OF THE ORIGINAL
LOW RATE.  HOWEVER, THERE IS NO FACTUAL EVIDENCE IN THIS RECORD FROM
WHICH IT CAN BE CONCLUDED THAT BARRIERS TO RE-ENTRY ARE LOW ENOUGH TO
CREATE SUCH POTENTIAL COMPETITION.)     IF THE ONLY JUSTIFICATION FOR
THE MAINTENANCE OF A DISPROPORTIONALLY LOW RATE TO SOME SHIPPERS IS THE
FACT THAT COMPETITION EXISTED ONCE UPON A TIME FOR THEIR BUSINESS,
WOULD IT BE IRRATIONAL TO CONCLUDE THAT IT WOULD BE PREFERABLE TO KEEP
THE ORIGINAL COMPETITION IN BUSINESS TO SERVE THOSE SHIPPERS AND TO
REQUIRE THE RAILROAD TO LOOK ELSEWHERE FOR ADDITIONAL REVENUE?  WOULD
IT, FOR EXAMPLE, BE POSSIBLE FOR RAILROADS TO INCREASE THEIR REVENUES
INSTEAD BY INCREASING, THROUGH SELECTIVE RATE DECREASES, THE VOLUME OF
TRAFFIC SHIPPED BY PERSONS WHO PRESENTLY PAY AMOUNTS IN EXCESS OF THE
FULLY DISTRIBUTED COST FOR THE SERVICE AFFORDED THEM?  THESE ARE ONLY A
FEW OF THE QUESTIONS THAT COME TO MIND WHEN WE ATTEMPT TO EVALUATE THE
ECONOMIC ARGUMENTS MADE IN THIS CASE.  WE DO NOT PRETEND TO BE ABLE TO
ANSWER THEM.  WE MERELY NOTE THEIR EXISTENCE AS EVIDENCE THAT WE DO NOT
FIND THE ARGUMENTS MADE TO THE ICC HERE AS COMPELLING AS DID THE
DISTRICT COURT. 

OUR DISCUSSION HERE SHOULD NOT BE INTERPRETED AS A REJECTION OF THE
BASIC ECONOMIC POINTS MADE BY THE RAILROADS.  IT IS MERELY INTENDED TO
ILLUSTRATE THE DESIRABILITY OF HAVING THE INITIAL RESOLUTION OF THESE
ISSUES MADE BY A TRIBUNAL, AND IN A PROCEEDING, MORE SUITABLE THAN THE
PRESENT ONE. 

/17/  IT IS, OF COURSE, TRUE THAT SUCH DISCRIMINATION NEED HAVE NO
NECESSARY RELATIONSHIP TO A RAILROAD'S COST OF SERVICE, WHETHER THAT IS
COMPUTED ON A FULLY DISTRIBUTED OR OUT-OF-POCKET BASIS.  ON THE OTHER
HAND, IT IS ALSO EVIDENT THAT WHAT IS BASICALLY AT ISSUE IS A CARRIER'S
RIGHT TO PRICE DISCRIMINATORILY, EITHER BETWEEN SHIPMENTS OR SHIPPERS,
IN ORDER TO MAXIMIZE REVENUES BY COMPETITION.  BY CONTRAST IT CAN BE
NOTED THAT THE RAILROADS HAVE APPARENTLY RETAINED THEIR PRIOR RATE OF
$11.86 PER TON ON INGOT MODS IN AREAS WHERE THEY HAVE NO COMPETITION
FROM BARGE-TRUCK SERVICE.  THE DISCRIMINATION THUS CREATED IS NOT TOO
DISSIMILAR FROM THAT EMBODIED IN THE ABOVE EXAMPLES. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT 

AS I UNDERSTAND THE COURT'S POSITION, IT IS THAT THE COMMISSION HAS
NOT DECIDED, AND THUS THE COURT NEED NOT DECIDE, THE QUESTION EXPRESSLY
LEFT OPEN IN ICC V. NEW YORK, N.H. & H.R. CO., 372 U.S. 744:  WHETHER
OUT-OF-POCKET COSTS, FULLY DISTRIBUTED COSTS, OR SOME THIRD STANDARD
SHOULD BE THE CRITERION FOR DETERMINING UNDER SEC. 15A(3) OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. 15A(3), AND THE NATIONAL
TRANSPORTATION POLICY, PRECEDING SEC. 1 OF THE ACT, WHICH MODE OF
TRANSPORTATION HAS THE INHERENT ADVANTAGE.  THE REASONING OF THE
COURT'S OPINION IS, I TAKE IT, THAT THE COMMISSION MAY PROPERLY ADHERE
TO A FULLY DISTRIBUTED COSTS STANDARD PENDING ITS DECISION IN A
SEPARATE RULEMAKING PROCEEDING, ENTITLED RULES GOVERNING THE ASSEMBLING
AND PRESENTING OF COST EVIDENCE, DOCKET NO. 34013. 

ALTHOUGH I DO NOT DOUBT THAT AN ADMINISTRATIVE AGENCY MAY, WHERE THE
ORDERLY PROCESSES OF ADJUDICATION OR RULEMAKING REQUIRE, DEFER THE
RESOLUTION OF ISSUES TO MORE APPROPRIATE PROCEEDINGS, /1/  I SHOULD
HAVE HAD THE GREATEST DIFFICULTY IN SAYING THAT IN FACT THIS HAD
OCCURRED, OR HAD BEEN INTENDED TO OCCUR, IN THESE CASES.  /2/
NONETHELESS, GIVEN BO,H THE COURT'S CONCLUSION AND THE ISOLATED
STATEMENTS IN THE COMMISSION'S OPINION CONSISTENT WITH THAT CONCLUSION,
I BELIEVE IT BEST TO ACQUIESCE IN THE RESULT REACHED BY THE COURT,
RATHER THAN TO EXPRESS MY VIEWS AS A SINGLE JUSTICE UPON THE ISSUE
WHICH THE COURT SHUNS.  /3/ 

I WOULD BE LESS THAN CANDID IF I DID NOT SAY THAT I REGARD THIS
DISPOSITION OF THESE CASES AS UNSATISFACTORY, FOR WHAT IS NOW DONE
LEAVES THIS IMPORTANT QUESTION JUST WHERE OUR DECISION OF FIVE YEARS
AGO IN THE NEW HAVEN CASE LEFT IT, AND NEW LITIGATION WILL NOW BE
NECESSARY TO RESOLVE THE ISSUE. 

/1/  I DO NOT, HOWEVER, BELIEVE THAT THE COURT'S POSITION IS REALLY
SUPPORTED BY ITS REFERENCES TO THE AREA PRICING AND MORATORIA SYSTEMS
APPROVED BY THE COURT IN THE PERMIAN BASIN AREA RATE CASES, 390 U.S.
747.  THE COURT'S OPINION IN THOSE CASES EMPHASIZED THAT THOSE
ADMINISTRATIVE DEVICES WERE WARRANTED IN LIGHT OF THE TERMS OF THE
NATURAL GAS ACT AND OF THE EXTRAORDINARY DIFFICULTIES OF REGULATING
INDEPENDENT PRODUCERS OF THAT COMMODITY.  I SHOULD NOT HAVE THOUGHT IT
USEFUL OR DESIRABLE TO EXTRAPOLATE FROM THOSE UNUSUAL CIRCUMSTANCES ANY
GENERAL EXTENSION OF THE DISCRETION OF ADMINISTRATIVE AGENCIES.  OF
COURSE, THE SPECIFIC PROPOSITION TAKEN BY THE COURT TODAY FROM THE
OPINION IN THOSE CASES, WHICH HAD IN TURN BEEN TAKEN FROM LOS ANGELES
GAS CO. V. RAILROAD COMMISSION, 289 U.S. 287, 304, MAY BE REGARDED AS A
GENERAL PRINCIPLE SUSTAINED BY A NUMBER OF THE COURT'S OPINIONS.  THE
DIFFICULTY, I SHOULD HAVE SUPPOSED, IS THAT EVEN THAT GENERAL
PROPOSITION IS ONLY DIMLY RELEVANT TO THE QUESTIONS NOW BEFORE US. 

/2/  THE APPEARANCE AND DISAPPEARANCE OF THE SUGGESTION THAT THESE
QUESTIONS MUST BE DEFERRED PENDING THE COMMISSION'S RULEMAKING
PROCEEDINGS ON THE PRESENTATION OF COST EVIDENCE DESERVES A MORE
COMPLETE CHRONICLE THAN THE COURT HAS GIVEN.  IN 1965, MORE THAN THREE
YEARS AFTER THE COMMISSION INITIATED ITS RULEMAKING PROCEEDING, 27
FED.REG.  4102, AND SOME TWO MONTHS BEFORE IT DECIDED THESE CASES, THE
COMMISSION HELD THAT "A COMPARISON OF OUT-OF-POCKET COSTS IS THE MOST
APPROPRIATE METHOD FOR ASCERTAINING . . . INHERENT COMPETITIVE
ADVANTAGE" WHERE ONE OF THE COMPETING MODES IS UNREGULATED.  THE
COMMISSION FOUND IT UNNECESSARY TO DEFER THAT QUESTION, OR EVEN TO
MENTION ITS SEPARATE RULEMAKING PROCEEDING.  GRAIN IN MULTIPLE-CAR
SHIPMENTS-- RIVER CROSSINGS TO THE SO., 325 I.C.C. 752, 772. 

IN THE PRESENT CASE, THE REPORT AND ORDER OF THE COMMISSION'S
DIVISION 2 INDICATED THAT IT "ADHERED) TO THE UTILIZATION OF FULLY
DISTRIBUTED COSTS AS THE STANDARD FOR DETERMINING THE INHERENT
ADVANTAGE OF LOW COST IN THE SITUATION PRESENTED."  323 I.C.C. 758, 762
763.  THE OPINION DID NOT PAUSE TO REFER TO THE RULEMAKING PROCEEDING. 
IN THE REPORT AND ORDER OF THE FULL COMMISSION ON RECONSIDERATION, THE
ONLY REFERENCE TO THE RULEMAKING PROCEEDING WAS THE BRIEF PASSAGE
QUOTED BY THE COURT FROM THE OPINION'S FINAL SECTION.  326 I.C.C. 77,
84.  THE THREE DISSENTING MEMBERS OF THE COMMISSION FOUND IT
UNNECESSARY TO REFER TO THE RULEMAKING PROCEEDING.  ID., AT 85, 86,
90. 

ONE YEAR AFTER ITS DECISION IN THESE CASES, THE COMMISSION HAD
OCCASION TO REVIEW ITS APPROACH TO THESE PROBLEMS.  ALTHOUGH THE
COMMISSION ADHERED TO ITS DECISIONS IN THESE CASES AND IN GRAIN IN
MULTIPLE-CAR SHIPMENTS-- RIVER CROSSINGS TO THE SO., SUPRA, IT DID NOT
FIND IT NECESSARY TO ADVERT TO ITS SEPARATE RULEMAKING PROCEEDINGS.  IT
CONCLUDED THAT WHERE THE COMPETITION FROM A REGULATED CARRIER IS
"RELATIVELY LIMITED" IT WOULD APPLY THE RULE FROM GRAIN IN MULTIPLE-CAR
SHIPMENTS, AND NOT THAT FROM THESE CASES.  THERE IS NO EVIDENCE
WHATEVER THAT THE COMMISSION REGARDED THESE TWO LINES OF AUTHORITY
MERELY AS TEMPORARY EXPEDIENTS, USEFUL ONLY UNTIL MORE CAREFUL ANALYSIS
IS POSSIBLE.  WINE, PACIFIC COAST TO THE EAST, 329 I.C.C. 167, 171
175.  AND SEE THE CONCURRING OPINIONS OF VICE CHAIRMAN TUCKER AND
COMMISSIONER FREAS, ID., AT 176, AS WELL AS THE SEPARATE OPINION OF THE
COMMISSIONER MURPHY, DISSENTING IN PART, ID., AT 177. 

ALTHOUGH THE THREE-JUDGE DISTRICT COURT SET ASIDE THE COMMISSION'S
ORDER IN THESE CASES, IT DID NOT MENTION THE RULEMAKING PROCEEDING. 
268 F.SUPP.  71. 

IN ITS JURISDICTIONAL STATEMENT TO THIS COURT, THE COMMISSION
ADVERTED TO THE RULEMAKING PROCEEDING ONLY IN A SINGLE SENTENCE, WITH
AN IDENTIFYING FOOTNOTE, CONTAINED IN THE STATEMENT'S CONCLUSION. 
JURISDICTIONAL STATEMENT IN NO. 809, AT 17.  IN THE MEMORANDUM OF THE
UNITED STATES, URGING THAT PROBABLE JURISDICTION BE NOTED, IT WAS SAID
THAT THESE CASES "PRESENT A MAJOR ISSUE RESERVED BY THIS COURT" IN NEW
HAVEN, WHICH WAS "WHETHER OUT-OF-POCKET COSTS, FULLY DISTRIBUTED COSTS,
OR 'SOME DIFFERENT MEASURE' SHOULD BE THE CRITERION FOR DETERMINING
WHICH MODE OF TRANSPORTATION HAS THE INHERENT ADVANTAGE . . . ." 
MEMORANDUM FOR THE UNITED STATES 3-4.  IN THE VARIOUS BRIEFS PRESENTED
TO THE COURT IN THESE FOUR CASES, INCLUDING THE BRIEFS OF THE UNITED
STATES AND OF THE COMMISSIO,, I HAVE LOOKED IN VAIN FOR ANY SUGGESTION
THAT, AS THE COURT NOW HOLDS, THE COMMISSION'S OPINION WAS INTENDED
MERELY TO DEFER RESOLUTION OF THE QUESTION RESERVED IN NEW HAVEN. 
INDEED, I HAVE SEARCHED UNSUCCESSFULLY IN THE COMMISSION'S BRIEF FOR
ANY REFERENCE, HOWEVER FLEETING, TO THE RULEMAKING PROCEEDING.  ONE
MIGHT HAVE SUPPOSED THAT IF, AS THE COURT NOW FINDS, THE EXISTENCE OF
THE RULEMAKING PROCEEDING WAS, IN THE COMMISSION'S VIEW, DECISIVE TO
THE RESULT OF THIS CASE, THE COMMISSION WOULD HAVE FOUND ROOM IN ITS
BRIEF OF 51 PAGES AT LEAST TO CITE THOSE PROCEEDINGS.  IT IS DIFFICULT
TO ESCAPE THE INFERENCE THAT THE COURT HAS, ON A BASIS THAT WILL
DOUBTLESS PROVE AS SURPRISING TO THE PARTIES AS IT DID TO ME, SIMPLY
POSTPONED DECISION OF A DIFFICULT ISSUE. 

/3/  IT IS, HOWEVER, PROPER TO ADD THAT I HAVE FOUND NO SUPPORT IN
THE RECORD FOR THE COURT'S SUGGESTION THAT "THE RAILROAD APPELLEES HERE
DETERMINED TO ATTEMPT TO RAISE PRECISELY THE SAME ISSUES (AS IN THE
RULEMAKING PROCEEDING) IN A MUCH MORE CIRCUMSCRIBED PROCEEDING BY
UNILATERALLY REDUCING THEIR RATES ON ONE ITEM OF TRAFFIC."  ANTE, AT
590-591. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT BELOW FOR THE REASONS STATED BY THE
DISTRICT COURT IN 268 F.SUPP.  71. 

LEONARD S. GOODMAN AND HARRY C. AMES, JR., ARGUED THE CAUSE FOR
APPELLANTS IN ALL CASES.  WITH MR. GOODMAN ON THE BRIEF FOR APPELLANT
IN NO. 809 WERE ROBERT W. GINNANE AND FRITZ R. KAHN.  WITH MR. AMES ON
THE BRIEF FOR APPELLANTS IN NO.797 WERE J. RAYMOND CLARK, ROBERT E.
WEBB, AND T. RANDOLPH BUCK.  PETER T. BEARDSLEY, BRYCE REA, JR., THOMAS
M. KNEBEL, AND NUEL D. BELNAP FILED BRIEFS FOR APPELLANTS IN NO. 804. 
A. ALVIS LAYNE AND ROBERT L. WRIGHT FILED BRIEFS FOR APPELLANT IN NO.
808. 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
TURNER, AND HOWARD E. SHAPIRO.  CARL HELMETAG, JR., ARGUED THE CAUSE
FOR APPELLEE RAILROADS IN ALL CASES.  WITH HIM ON THE BRIEF WERE
STANFIELD JOHNSON, ELBERT R. LEIGH, JAMES H. MCGLOTHLIN, JAMES A.
BISTLINE, THORMUND A. MILLER, WILLIAM M. MOLONEY, HARRY J. BREITHAUPT,
DONAL L. TURKAL, JOSEPH E. STOPHER, AND R. LEE BLACKWELL. 
..END :



















WAINWRIGHT V. CITY OF NEW ORLEANS, 392 U.S. 598 


       WAINWRIGHT V. CITY OF NEW ORLEANS. 

        CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

        NO. 13.  ARGUED OCTOBER 9-10, 1967.-- DECIDED JUNE 17,

1968. 


248 LA. 1097, 184 SO.2D 23, CERTIORARI DISMISSED. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AND IMPROVIDENTLY GRANTED. 

MR. JUSTICE HARLAN, CONCURRING. 

I WISH TO STATE IN A FEW WORDS MY REASONS FOR JOINING IN THE
DISMISSAL OF THIS WRIT AS IMPROVIDENTLY GRANTED.  FOR REASONS STATED IN
THE DISSENTING OPINION OF MY BROTHER DOUGLAS I AGREE THAT THE
DISPOSITIVE FEDERAL ISSUE IN THIS CASE IS WHETHER THE PETITIONER USED
AN UNREASONABLE AMOUNT OF FORCE IN RESISTING WHAT ON THIS RECORD MUST
BE REGARDED AS AN ILLEGAL ATTEMPT BY THE POLICE TO SEARCH HIS PERSON. 
I FIND THIS RECORD TOO OPAQUE TO PERMIT ANY SATISFACTORY ADJUDICATION
OF THAT QUESTION.  SEE RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549,
568-575. 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING. 

WITH PROFOUND DEFERENCE TO THE OPINIONS OF MY BRETHREN WHO HAVE
FILED OPINIONS IN THIS CASE, I AM IMPELLED TO ADD THIS NOTE.  UPON ORAL
ARGUMENT AND FURTHER STUDY AFTER THE WRIT WAS GRANTED, IT BECAME
APPARENT THAT THE FACTS NECESSARY FOR EVALUATION OF THE DISPOSITIVE
CONSTITUTIONAL ISSUES IN THIS CASE ARE NOT ADEQUATELY PRESENTED BY THE
RECORD BEFORE US.  IT IS ALSO ENTIRELY CLEAR THAT THEY CANNOT NOW BE
DEVELOPED ON REMAND WITH ANY VERISIMILITUDE. 

THE CENTRAL ISSUE THAT THIS CASE APPEARED TO PRESENT FOR DECISION
WHEN CERTIORARI WAS GRANTED IS OF GREAT IMPORTANCE.  IT IS WHETHER THE
POLICE, SEEING A PEDESTRIAN WHO FITS THE DESCRIPTION OF A PERSON
SUSPECTED OF MURDER, MAY ACCOST THE PEDESTRIAN AND STOP HIM; AND WHEN
AND TO WHAT EXTENT IS THE ACCOSTED PERSON JUSTIFIED IN REFUSING TO
COOPERATE WITH EFFORTS OF THE POLICE TO ESTABLISH THAT HE IS OR IS NOT
THE PERSON WHOM THEY SEEK. 

I AM NOT PREPARED TO SAY THAT, REGARDLESS OF THE PRESENCE OR ABSENCE
OF ADEQUATE CAUSE FOR POLICE ACTION, THE ARREST OR THE ATTEMPT BY THE
OFFICERS TO SEARCH IS UNLAWFUL, AS MY BROTHER HARLAN'S OPOINION
SUGGESTS, WHERE THE ACCOSTED PERSON PRODUCES NO IDENTIFICATION,
ATTEMPTS THREE TIMES TO WALK AWAY, AND REFUSES TO DISPEL ANY DOUBT BY
SHOWING THAT HIS FOREARM IS NOT TATTOOED.  I SHOULD WANT TO KNOW
WHETHER, IN FACT, THERE WAS CONSTITUTIONALLY ADEQUATE CAUSE FOR THE
POLICE TO SUSPECT THAT THE PEDESTRIAN WAS THE MAN SOUGHT FOR MURDER. 

IF THE COURT SHOULD, ON AN ADEQUATE RECORD, DETERMINE THAT THE
POLICE ACTION IN STOPPING AND ARRESTING PETITIONER VIOLATED HIS
CONSTITUTIONAL RIGHTS, THERE WOULD REMAIN, AMONG OTHER ISSUES THE
QUESTION OF CULPABILITY FOR THE SCUFFLE THAT ENSUED.  MY BRETHREN WHO
HAVE WRITTEN IN THIS CASE SEEM AGREED THAT THE RECORD IS TOO SKETCHY TO
PERMIT DECISION OF THIS ISSUE. 

THE COURT HAS PROPERLY DISMISSED THE WRIT AS IMPROVIDENTLY GRANTED. 
I RESPECTFULLY SUBMIT THAT THE COURT IS CORRECT TO LEAVE THE MATTER
THERE.  I SHOULD REGRET ANY INFERENCE THAT MIGHT BE DERIVED FROM THE
OPINIONS OF MY BRETHREN THAT THIS COURT WOULD OR SHOULD HOLD THAT THE
POLICE MAY NOT ARREST AND SEEK BY REASONABLE MEANS TO IDENTIFY A
PEDESTRIAN WHOM, FOR ADEQUATE CAUSE, THEY BELIEVE TO BE A SUSPECT IN A
MURDER CASE.  I DO NOT BELIEVE THAT THIS COURT WOULD OR SHOULD, WITHOUT
CAREFUL ANALYSIS, ENDORSE THE RIGHT OF A PEDESTRIAN, ACCOSTED BY THE
POLICE BECAUSE HE FITS THE DESCRIPTION OF A PERSON WANTED FOR MURDER,
TO RESIST THE OFFICERS SO VIGOROUSLY THAT THEY ARE "BOUNCED FROM WAL TO
WALL PHYSICALLY" OR TO REACT "LIKE A FOOTBALL PLAYER GOING THROUGH A
LINE."  OUR JURISPRUDENCE TEACHES THAT WE SHOULD DECIDE ISSUES ON THE
BASIS OF FACTS OF RECORD.  THIS IS ESPECIALLY IMPORTANT IN THE
DIFFICULT, DANGEROUS, AND SUBTLE FIELD WHERE THE ESSENTIAL OFFICE OF
THE POLICEMAN IMPINGES UPON THE BASIC FREEDOM OF THE CITIZEN. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

ABOUT MIDNIGHT ON OCTOBER 12, 1964, PETITIONER, A STUDENT AT TULANE
UNIVERSITY LAW SCHOOL, LEFT HIS FRENCH QUARTER APARTMENT IN NEW ORLEANS
TO GET SOMETHING TO EAT.  APPROXIMATELY FOUR BLOCKS FROM HIS APARTMENT,
TWO OFFICERS OF THE NEW ORLEANS POLICE DEPARTMENT WHO HAD OBSERVED
PETITIONER AS THEY CRUISED BY IN THEIR CAR STOPPED HIM BECAUSE IN THEIR
OPINION HE FITTED THE DESCRIPTION OF A MAN SUSPECTED OF MURDER.  THAT
SUSPECT HAD TATTOOED ON HIS LEFT FOREARM THE WORDS "BORN TO RAISE
HELL."  PETITIONER TOLD THE OFFICERS HE HAD IDENTIFICATION AT HOME BUT
NOT ON HIS PERSON.  HE GAVE THEM HIS NAME AND ADDRESS, AND INFORMED
THEM HE WAS A LAW STUDENT AND WAS ON HIS WAY TO GET SOMETHING TO EAT. 
THE OFFICERS TOLD PETITIONER THEY THOUGHT HE RESEMBLED A MURDER
SUSPECT, AND ASKED HIM TO REMOVE HIS JACKET SO THEY COULD CHECK HIS
FOREARM FOR THE TATTOO.  PETITIONER REFUSED, SAYING HE WOULD NOT ALLOW
HIMSELF "TO BE MOLESTED BY A BUNCH OF COPS HERE ON THE STREET," AND HE
"DIDN'T WANT TO BE HUMILIATED BY THE POLICE."  PETITIONER WAS THEN
SUFFERING FROM A SKIN AILMENT WHICH HE APPARENTLY REGARDED AS UNSIGHTLY
AND WHICH WOULD HAVE BEEN EXPOSED HAD HE REMOVED HIS JACKET, THOUGH HE
DID NOT COMMUNICATE THIS TO THE POLICE.  THE POLICE ARRESTED HIM ON A
CHARGE OF VAGRANCY BY LOITERING AND FRISKED HIM. 

DURING THIS INCIDENT PETITIONER ATTEMPTED THREE TIMES PEACEFULLY TO
WALK AWAY FROM THE OFFICERS.  THE FIRST TWO ATTEMPTS CAME AFTER
PETITIONER HAD GIVEN WHAT HE REGARDED AS SUFFICIENT IDENTIFICATION. 
THE THIRD, ALTHOUGH THE OFFICERS WERE NOT CERTAIN ABOUT THIS,
APPARENTLY OCCURRED AFTER PETITIONER WAS INFORMED HE WAS UNDER ARREST. 
EVIDENTLY ON THE BASIS OF THIS LAST ATTEMPT, PETITIONER WAS
SUBSEQUENTLY CHARGED WITH RESISTING AN OFFICER.  PETITIONER USED NO
FORCE IN ANY OF HIS ATTEMPTS TO WALK AWAY AND EACH TIME STOPPED WHEN SO
DIRECTED BY THE POLICE. 

AFTER PETITIONER WAS INSIDE THE POLICE CAR HE CALLED THE OFFICERS
"STUPID COPS," WHEREUPON THEY TOLD HIM HE WOULD ALSO BE CHARGED WITH
REVILING THE POLICE.  WHEN THE CAR ARRIVED AT THE POLICE STATION,
PETITIONER OFFERED TO PRODUCE IDENTIFICATION IF THEY WOULD TAKE HIM
HOME, BUT THIS OFFER WAS REJECTED.  IN THE STATIONHOUSE, PETITIONER WAS
INTERROGATED FOR ABOUT 10 MINUTES CONCERNING A "POSSIBLE MURDER
SUSPECT."  THEREAFTER, HE WAS BOOKED FOR VAGRANCY BY LOITERING,
RESISTING AN OFFICER, AND REVILING THE POLICE. 

AN OFFICER THEN TOLD PETITIONER TO REMOVE HIS JACKET.  PETITIONER
REFUSED, FOLDING HIS ARMS AND CROUCHING IN A CORNER.  TWO OFFICERS,
ACCORDING TO ONE OF THEM, THEN "GOT HOLD OF EACH OF HIS ARMS . . .
(AND) TRIED TO PRY HIS ARMS APART, AND . . . WERE BOUNCED FROM WALL TO
WALL AND BENCH TO BENCH AND BACK AGAIN."  PETITIONER DID NOT STRIKE AT
OR KICK THE OFFICERS, BUT RATHER, ACCORDING TO ONE OFFICER, "DANCED)
FROM WALL TO WALL . . . TRYING TO KEEP US FROM GETTING HIS ARMS." 
ACCORDING TO ANOTHER, THE OFFICERS WERE JOSTLED ONLY BY "THE COMBINED
EFFORT OF MR. WAINWRIGHT IN HIS REFUSAL TO REMOVE THE JACKET.  FORCE
WAS NECESSARY TO REMOVE THE JACKET BY THE OFFICERS."  THE OFFICERS
SUSTAINED NO BRUISES, MARKS, OR TORN CLOTHING AS A RESULT OF THIS
INCIDENT, AND SUCCEEDED IN REMOVING PETITIONER'S JACKET AND DISCOVERING
HE HAD NO TATTOO. 

PETITIONER'S TRIAL FOR THE THREE CHARGES BASED ON THE EPISODE IN THE
STREET-VAGRANCY BY LOITERING, RESISTING AN OFFICER AND REVILING THE
POLICE-- COMMENCED ON DECEMBER 4, 1964.  AFTER PARTIAL TESTIMONY THE
TRIAL WAS ADJOURNED, AND NOT RESUMED UNTIL MAY 7, 1965, WHEN THE COURT
HEARD FURTHER PARTIAL TESTIMONY AND ADJOURNED OVER PETITIONER'S
OBJECTION.  THE TRIAL WAS AGAIN RESUMED ON MAY 14, AND AT THE CLOSE OF
THE STATE'S CASE ON THAT DAY PETITIONER'S MOTION FOR DISMISSAL WAS
TAKEN UNDER ADVISEMENT, AND THREE NEW CHARGES BASED ON EVENTS INSIDE
THE POLICE STATION WERE LODGED AGAINST HIM.  RESPONDENT,BEFORE THIS
COURT, CHARACTERIZES THE ORIGINAL CHARGES WHICH WERE PROSECUTED AGAINST
PETITIONER INTERMITTENTLY OVER A SIX-MONTH PERIOD AS "LONG-ABANDONED." 
WHY THE POLICE WAITED SIX MONTHS BEFORE BRINGING CHARGES BASED ON
EVENTS OCCURRING WITHIN THE POLICE STATION IS NOWHERE EXPLAINED. 

THESE NEW CHARGES CONSISTED OF TWO COUNTS OF DISTURBING THE PEACE BY
ASSAULTING POLICE OFFICERS, AND ONE COUNT OF RESISTING AN OFFICER. 
PETITIONER WAS CONVICTED IN THE MUNICIPAL COURT ON ALL THREE COUNTS. 
ON APPEAL TO THE CRIMINAL DISTRICT COURT, PETITIONER ARGUED THAT HIS
ARREST AND SUBSEQUENT SEARCH WERE UNLAWFUL, AND THEREFORE HE HAD A
RIGHT TO RESIST THE SEARCH.  HE CLAIMED THAT "(HE LEGALITY OF THE
ARREST MUST BE SHOWN IN ORDER TO FIND THE DEFENDANT GUILTY OF ANY CRIME
IN RESISTING IT."  HE ALSO ARGUED THAT THE EVIDENCE SHOWED ONLY THAT HE
TRIED TO HOLD HIS JACKET ON, AND THAT RESISTANCE OF THIS TYPE DOES NOT
CONSTITUTE THE CRIME OF ASSAULT.  THE COURT REVERSED THE CONVICTION FOR
RESISTING AN OFFICER ON THE GROUND THAT THE RESISTANCE MUST OCCUR WHILE
THE OFFICER IS MAKING AN ARREST TO CONSTITUTE A CRIME UNDER THE
ORDINANCE.  HOWEVER, THE COURT FOUND THE ARREST WAS LAWFUL, AND SINCE
"(THE DEFENDANT WAS IN POLICE CUSTODY PURSUANT TO A LEGAL ARREST . . .
THE OFFICERS HAD THE RIGHT AND THE OBLIGATION TO SEARCH THE DEFENDANT .
. . ."  IT HELD THAT "AN INDIVIDUAL IN LAWFUL POLICE CUSTODY" CANNOT
RESIST THE ACTIONS OF THE POLICE IN DOING THEIR DUTY, AND THEREFORE
AFFIRMED THE CONVICTIONS FOR ASSUALT.  /1/ 

PETITIONER SOUGHT WRITS OF CERTIORARI, PROHIBITION, AND MANDAMUS IN
THE LOUISIANA SUPREME COURT, AGAIN ARGUING THAT BECAUSE THE ARREST AND
SEARCH WERE UNLAWFUL HE HAD A RIGHT TO RESIST, AND ALSO THAT THE
"EVIDENCE MERELY SHOWS THAT THE DEFENDANT ACTED IN SELF-DEFENSE AND
RESISTED THE REMOVAL OF HIS CLOTHING."  THE COURT DENIED HIS
APPLICATION, HOLDING:  "THE RULING OF THE CRIMINAL DISTRICT COURT FOR
THE PARISH OF ORLEANS IS CORRECT." 

PETITIONER ARGUES BEFORE THIS COURT THAT HIS ARREST AND SUBSEQUENT
SEARCH IN THE STATIONHOUSE WERE UNLAWFUL AND THAT HE HAD A RIGHT UNDER
THE FOURTH AMENDMENT REASONABLY TO RESIST THE UNLAWFUL SEARCH.  IN MY
VIEW, THERE CAN BE NO DOUBT ON THIS RECORD THAT THE ARREST AND
SUBSEQUENT SEARCH OF PETITIONER WERE ILLEGAL.  I BELIEVE THAT THE
ILLEGALITY OF THE SEARCH ALONE REQUIRES REVERSAL OF THE JUDGMENT BELOW,
WHICH REJECTED POSSIBLY MERITORIOUS STATE-LAW CLAIMS ON THE ERRONEOUS
PREMISE THAT THE SEARCH WAS LAWFUL.  THEREFORE, IN ACCORDANCE WITH THIS
COURT'S WELL-ESTABLISHED PRACTICE "NOT TO FORMULATE A RULE OF
CONSTITUTIONAL LAW BROADER THAN IS REQUIRED BY THE PRECISE FACTS
PRESENTED IN THE RECORD," GARNER V. LOUISIANA, 368 U.S. 157, 163
(1961), I WOULD REVERSE AND REMAND THIS CASE WITHOUT REACHING THE
QUESTION WHETHER PETITIONER HAD, AND ACTED WITHIN, A FOURTH AMENDMENT
RIGHT TO RESIST. 

THE OFFICERS HAD NEITHER A WARRANT NOR PROBABLE CAUSE TO ARREST
PETITIONER FOR VAGRANCY BY LOITERING.  /2/  THE LOITERING CHARGE WAS
BASED ON THE INCONSEQUENTIAL CIRCUMSTANCE THAT PETITIONER HAD BEEN
STANDING STILL FOR 5 TO 10 SECONDS BEFORE THE POLICE APPROACHED HIM. 
THAT PETITIONER HAD NO IDENTIFICATION PAPERS ON HIS PERSON AND HAD VERY
LITTLE FUNDS OBVIOUSLY ADD NOTHING WHICH COULD CONSTITUTIONALLY MAKE
HIS CONDUCT CRIMINAL.  CF. THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199
(1960). 

MY BROTHER FORTAS SUGGESTS THAT WE CANNOT DETERMINE WHETHER
PETITIONER'S ARREST WAS UNLAWFUL BECAUSE THE RECORD DOES NOT REVEAL
WHETHER THE OFFICERS HAD PROBABLE CAUSE TO ARREST HIM FOR MURDER.  I
AGREE THAT THE RECORD DOES NOT PERMIT A DETERMINATION OF WHETHER THE
OFFICERS COULD LAWFULLY HAVE ARRESTED PETITIONER FOR MURDER.  WITH DUE
RESPECT, HOWEVER, I SUGGEST THAT THIS IS AN IRRELEVANT INADEQUACY IN
THE RECORD.  THE RECORD DOES ESTABLISH THAT PETITIONER WAS NOT ARRESTED
FOR MURDER.  THE RECORD DOES ESTABLISH THAT THE POLICE INTERROGATED
PETITIONER FOR ABOUT 10 MINUTES CONCERNING THE MURDER BEFORE IT WAS
DECIDED THAT HE WOULD NOT BE BOOKED FOR MURDER.  THE RECORD DOES
ESTABLISH THAT PETITIONER WAS BOOKED ONLY FOR VAGRANCY BY LOITERING,
RESISTING AN OFFICER, AND REVILING THE POLICE. 

"BOOKING" IS AN ADMINISTRATIVE RECORD OF AN ARREST.  WHEN A
DEFENDANT IS BOOKED, AN ENTRY IS MADE ON THE POLICE "ARREST BOOK"
INDICATING, GENERALLY, THE NAME OF THE PERSON ARRESTED, THE DATE AND
TIME OF THE ARREST OR BOOKING, THE OFFENSE FOR WHICH HE WAS ARRESTED,
AND OTHER INFORMATION.  /3/  IN LOUISIANA, AS IN MOST JURISDICTIONS,
/4/  THE POLICE ARE REQUIRED BY LAW TO BOOK A SUSPECT IN THIS MANNER. 
LA. CODE CRIM. PROC., ART. 228.  /5/  AND AS THE OFFICIAL COMMENT UPON
THE PERTINENT LOUISIANA STATUTE RECOGNIZES, THIS OFFICIAL AND PERTINENT
LOUISIANA STATUTE RECOGNIZES, THIS OFFICIAL AND PERMANENT ARREST RECORD
"PROVIDES A VALUABLE PROTECTION AGAINST SECRET ARRESTS AND IMPROPER
POLICE TACTICS."  1 LA. CODE CRIM. PROC., P. 131.  I SEE NO MORE
JUSTIFICATION FOR PERMITTING ANY OTHER ADMINISTRATIVE BODY TO DISREGARD
ITS OWN RECORDS.  QUITE THE CONTRARY.  IN THE "LOW-VISIBILITY" SPHERE
OF POLICE INVESTIGATORY PRACTICES, THERE ARE OBVIOUS AND COMPELLING
REASONS WHY OFFICIAL RECORDS SHOULD PREVAIL OVER THE SECOND-GUESSING OF
LAWYERS AND JUDGES.  NOR WOULD HOLDING THE POLICE TO OFFICIAL RECORDS
FRUSTRATE ANY LEGITIMATE INTEREST OF SOCIETY.  IF THE POLICE IN THIS
CASE REALLY BELIEVED THAT PETITIONER WAS THE MURDER SUSPECT, AND IF
THEY HAD PROBABLE CAUSE TO SO BELIEVE, ALL THEY HAD TO DO WAS TO ARREST
AND BOOK HIM FOR MURDER.  /6/  IF THEY DID NOT HAVE SUCH PROBABLE CAUSE
AT THE TIME THEY CONFRONTED PETITIONER ON THE STREET, THEY AT THE TIME
THEY CONFRONTED PETITIONER ON THE STREET, THEY MIGHT HAVE USED
TECHNIQUES SHORT OF ARRESTING HIM ON A TRUMPED-UP CHARGE TO VERIFY
THEIR SUSPICIONS.  /7/     IT IS PERFECTLY PLAIN, HOWEVER, THAT THE
POLICE IN THIS CASE WERE, TO SAY THE LEAST, NOT CONFIDENT THAT
PETITIONER WAS THE MURDER SUSPECT, AND THAT THE VAGRANCY CHARGE HERE
WAS USED AS A PRETEXT FOR HOLDING PETITIONER FOR FURTHER QUESTIONING
CONCERNING THE MURDER.  THIS TECHNIQUE, USING A MINOR AND IMAGINARY
CHARGE TO HOLD AN INDIVIDUAL, IN MY JUDGMENT DESERVES UNQUALIFIED
CONDEMNATION.  /8/  IT IS A TECHNIQUE WHICH MAKES PERSONAL LIBERTY AND
DIGNITY CONTINGENT UPON THE WHIMS OF A POLICE OFFICER, AND CAN SERVE
ONLY TO ENGENDER FEAR, RESENTMENT, AND DISRESPECT OF THE POLICE IN THE
POPULACE WHICH THEY SERVE. 

SINCE THE ARREST WAS UNLAWFUL, THE SUBSEQUENT SEARCH OF PETITIONER
IN THE STATIONHOUSE WAS ALSO UNLAWFUL.  SEE HENRY V. UNITED STATES, 361
U.S. 98 (1959); TRUPIANO V. UNITED STATES, 334 U.S. 699 (1948); JOHNSON
V. UNITED STATES, 333 U.S. 10 (1948); UNITED STATES V. DI RE, 332 U.S.
581 (1948).  BECAUSE THE OPINION OF THE COURT BELOW WAS PREDICATED UPON
THE ASSUMPTION THAT THIS SEARCH WAS LAWFUL, I THINK THAT THE JUDGMENT
BELOW MUST BE REVERSED.  IF THE LOUISIANA COURTS HAD REACHED THE
CORRECT CONCLUSION THAT THE POLICE OFFICERS HAD NO AUTHORITY TO SEARCH
PETITIONER, THEY MIGHT WELL HAVE CONCLUDED THAT PETITIONER WAS WITHIN
HIS RIGHTS UNDER LOCAL LAW IN RESISTING THIS UNLAWFUL SEARCH. 

THERE ARE TWO RELEVANT AND RELATED LEGAL PRINCIPLES WHICH THE
LOUISIANA COURTS MIGHT HAVE DRAWN UPON IN CONSIDERING THIS QUESTION. 
THE FIRST IS THE PRINCIPLE OF SELF-DEFENSE, WHICH WAS INFERENTIALLY
RAISED BY PETITIONER IN HIS APPEAL TO THE CRIMINAL DISTRICT COURT AND
EXPRESSLY NOTED IN HIS APPLICATION TO THE LOUISIANA SUPREME COURT.  THE
IDEA THAT AN INDIVIDUAL CANNOT BE HELD CRIMINALLY RESPONSIBLE FOR ACTS
DONE IN REASONABLE DEFENSE OF HIS PERSON IS DEEPLY ROOTED IN OUR
JURISPRUDENCE.  SELF-DEFENSE HAS LONG BEEN RECOGNIZED IN LOUISIANA, /9/
AND IS NOW PROVIDED FOR BY SEVERAL SECTIONS OF THE STATE CRIMINAL
CODE, ONE OF WHICH STATES: 

     "THE USE OF FORCE OR VIOLENCE UPON THE PERSON OF ANOTHER IS

  JUSTIFIABLE, WHEN COMMITTED FOR THE PURPOSE OF PREVENTING A

  FORCIBLE OFFENSE AGAINST THE PERSON . . .; PROVIDED THAT THE

  FORCE OR VIOLENCE USED MUST BE REASONABLE AND APPARENTLY

  NECESSARY TO PREVENT SUCH OFFENSE . . . ."  /10/

THE SUPREME COURT OF LOUISIANA HAS RECENTLY INTIMATED THAT THIS DEFENSE
IS AVAILABLE TO A DEFENDANT CHARGED WITH AGGRAVATED ASSAULT UPON A
POLICE OFFICER, IF THE ASSERTED ASSAULT WAS COMMITTED AFTER THE OFFICER
ATTEMPTED UNLAWFULLY TO ARREST THE DEFENDANT.  /11/  WHETHER SUCH A
DEFENSE IS AVAILABLE AGAINST THE DISTRUBING-THE-PEACE-BY-ASSAULT CHARGE
UPON WHICH PETITIONER WAS CONVICTED AND WHETHER THE RECORD IN THE
INSTANT CASE ESTABLISHES SUCH A DEFENSE ARE QUESTIONS OF LOUISIANA
LAW. 

THE SECOND PRINCIPLE WHICH THE STATE COURTS MIGHT REGARD AS
DISPOSITIVE IN THIS CASE WAS ANNOUNCED BY THE LOUISIANA SUPREME COURT
IN CITY OF MONROE V. DUCAS, 203 LA. 971, 14 SO.2D 781 (1943): 

     "THE RIGHT OF PERSONAL LIBERTY IS ONE OF THE FUNDAMENTAL
RIGHTS

  GUARANTEED TO EVERY CITIZEN, AND ANY UNLAWFUL INTERFERENCE WITH

  IT MAY BE RESISTED.  EVERY PERSON HAS A RIGHT TO RESIST AN

  UNLAWFUL ARREST; AND, IN PREVENTING SUCH ILLEGAL RESTRAINT OF HIS

  LIBERTY, HE MAY USE SUCH FORCE AS MAY BE NECESSARY."  /12/

PETITIONER VIGOROUSLY ARGUED IN THE STATE COURTS THAT HE HAD A RIGHT TO
RESIST THE STATIONSHOUSE SEARCH WHICH HE CONTENDED WAS UNLAWFUL, BUT
THE STATE COURTS NEVER CAME TO GRIPS WITH THIS ISSUE BECAUSE THEY HELD
HE WAS THEN IN "LAWFUL POLICE CUSTODY" PURSUANT TO "A LEGAL ARREST." 
BY VIRTUE OF THE CITY OF MONROE CASE, SUPRA, IT APPEARS WITH
UNMISTAKABLE CLARITY THAT AN INDIVIDUAL IN LOUISIANA HAS A RIGHT UNDER
STATE LAW REASONABLY TO RESIST AN UNLAWFUL ARREST.  WHETHER THIS STATE
RIGHT ENCOMPASSES THE RIGHT TO RESIST AN UNLAWFUL SEARCH AND WHETHER
THE AMOUNT OF RESISTANCE HERE WAS REASONABLE ARE QUESTIONS OF STATE
LAW. 

SINCE THE STATE COURTS' APPRAISAL OF THESE CRUCIAL QUESTIONS OF
STATE LAW WAS FOREORDAINED BY THEIR ERRONEOUS RULING THAT THE SEARCH OF
PETITIONER WAS LAWFUL, THEY SHOULD BE PERMITTED THE OPPORTUNITY TO
RECONSIDER THESE QUESTIONS.  ACCORDINGLY, I WOULD REVERSE THE JUDGMENT
BELOW AND REMAND THIS CASE TO THE LOUISIANA SUPREME COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  BECAUSE I BELIEVE THE
QUESTION WHETHER THE POLICE CAN ARREST SOMEONE ON A TRUMPED-UP MINOR
CHARGE PENDING INVESTIGATION OF OTHER CRIMES WARRANTS THIS COURT'S
CONDEMNATION, AND BECAUSE, UNLIKE MY BRETHREN, I DO NOT FIND THIS
RECORD TOO OPAQUE FOR WHAT I CONSIDER A PROPER DISPOSITION, I
RESPECTFULLY DISSENT FROM THE DISMISSAL OF THE WRIT OF CERTIORARI AS
IMPROVIDENTLY GRANTED. 

/1/  THE ORDINANCE UNDER WHICH PETITIONER WAS CONVICTED PROVIDES:
"NO PERSON SHALL DISTURB THE PUBLIC PEACE BY ASSAULTING OR BEATING
ANOTHER OR BY THREATENING TO DO BODILY HARM TO ANOTHER."  SEC. 42-24
CODE OF THE CITY OF NEW ORLEANS, LOUISIANA. 

/2/  THE REVILING-THE-POLICE CHARGE AROSE FROM AN INCIDENT
SUBSEQUENT TO THE UNLAWFUL ARREST.  WHILE IT IS NOT ENTIRELY CLEAR FROM
THE TESTIMONY WHETHER THE CHARGE OF RESISTING AN OFFICER WAS BASED ON
PETITIONER'S PRE- OR POST-ARREST ATTEMPT TO WALK AWAY, THE DECISION OF
THE CRIMINAL DISTRICT COURT REVERSING PETITIONER'S CONVICTION FOR
RESISTING AN OFFICER BASED ON EVENTS INSIDE THE POLICE STATION MAKES
CLEAR THAT TO CONSTITUTE A CRIME UNDER THE RELEVANT NEW ORLEANS
ORDINANCE THE RESISTANCE MUST OCCUR IN THE PROCESS OF AN ARREST. 
THEREFORE, PETITIONER'S PRE-ARREST ATTEMPT, JUST AS HIS POST-ARREST
ALLEGED REVILING OF THE POLICE, CANNOT JUSTIFY THE INITIAL ARREST FOR
VAGRANCY.  CF. UNITED STATES V. DI RE, 332 U.S. 581, 595 (1948); BYARS
V. UNITED STATES, 273 U.S. 28, 29 (1927).  IN ANY EVENT, IT IS EVIDENT
THAT THESE TWO CHARGES ARE AS BASELESS AS THE VAGRANCY CHARGE.  A
PEACEFUL ATTEMPT TO WALK AWAY FROM A POLICE OFFICER, WHERE THE ACCUSED
HAS IDENTIFIED HIMSELF, HAS COMMITTED NO CRIME IN THE PRESENCE OF THE
OFFICER, AND STOPS AS SOON AS THE OFFICER DIRECTS HIM TO CANNOT BE
REGARDED AS THE CRIME OF RESISTING AN OFFICER, AND, IT IS FAIRLY CLEAR,
WOULD NOT BE SO REGARDED IN LOUISIANA.  SEE STATE V. DUNNINGTON, 157
LA. 369, 102 SO. 478 (1924); STATE V. SCOTT, 123 LA. 1085, 49 SO. 715
(1909).  AND WITH DUE REGARD FOR THE SENSITIVITY OF POLICE OFFICERS, IT
IS SIMPLY INCONCEIVABLE THAT IT CAN BE MADE CRIMINAL TO SPEAK THE WORDS
"STUPID COP," WITHOUT MORE, IN THE PRIVACY OF A POLICE CAR.  IT SEEMS
LIKELY THAT THE ABANDONMENT OF THE PROSECUTION ON THESE CHARGES AFTER
THE STATE HAD PRESENTED ITS CASE INDICATES THAT THE PROSECUTING
OFFICIALS WERE WELL AWARE OF THE GROUNDLESSNESS OF ALL THREE CHARGES 

/3/  SEE W. LAFAVE, ARREST:  THE DECISION TO TAKE A SUSPECT INTO
CUSTODY 379-382 (1965).  CF.  THE PRESIDENT'S COMMISSION ON LAW
ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A
FREE SOCIETY 8 (1967). 

/4/  SEE, E.G., NEW YORK CITY CHARTER AND ADMINISTRATIVE CODE SEC.
435-12.0 (1963); DISTRICT OF COLUMBIA CODE SEC. 4-134 (1967). 

/5/  LA. CODE CRIM. PROC., ART. 228, PROVIDES THAT:  "IT IS THE DUTY
OF EVERY PEACE OFFICER MAKING AN ARREST, OR HAVING AN ARRESTED PERSON
IN HIS CUSTODY, PROMPTLY TO CONDUCT THE PERSON ARRESTED TO THE NEAREST
JAIL OR POLICE STATION AND CAUSE HIM TO BE BOOKED.  A PERSON IS BOOKED
BY AN ENTRY, IN A BOOK KEPT FOR THAT PURPOSE, SHOWING HIS NAME AND
ADDRESS, THE OFFENSE CHARGED AGAINST HIM, BY WHOM HE WAS ARRESTED, A
LIST OF ANY PROPERTY TAKEN FROM HIM, AND THE DATE AND TIME OF BOOKING. 
EVERY JAIL AND POLICE STATION SHALL KEEP A BOOK FOR THE LISTING OF THE
ABOVE INFORMATION AS TO EACH PRISONER RECEIVED.  THE BOOK SHALL ALWAYS
BE OPEN FOR PUBLIC INSPECTION.  THE PERSON BOOKED SHALL BE IMPRISONED
UNLESS HE IS RELEASED ON BAIL."  (EMPHASIS ADDED.) 

/6/  OF COURSE, I DO NOT MEAN TO SUGGEST THAT A DEFENDANT ARRESTED
AND BOOKED FOR ONE CRIME CANNOT LATER BE CHARGED WITH OTHER CRIMES. 
THE POINT IS SIMPLY THAT WHEN A CONTROVERSY ARISES OVER THE LEGALITY OF
THE ARREST, THE POLICE SHOULD BE HELD TO THE BOOKED OFFENSE. 

/7/  FOR EXAMPLE, ONE OFFICER MIGHT HAVE FOLLOWED PETITIONER WHILE
THE OTHER SECURED MORE DETAILED INFORMATION ABOUT THE MURDER SUSPECT
FROM HEADQUARTERS, AND/OR CHECKED PETITIONER'S IDENTIFICATION BY
LOOKING AT A PHONEBOOK OR GOING TO TO THE ADDRESS HE GAVE THEM.  THEY
MIGHT ALSO HAVE CHECKED WITH SOMEONE CONNECTED WITH PETITIONER'S LAW
SCHOOL.  ANOTHER ALTERNATIVE WOULD HAVE BEEN TO SUGGEST THAT PETITIONER
VOLUNTARILY RETURN TO HIS APARTMENT, WHICH THE OFFICERS KNEW WAS ONLY
FOUR BLOCKS AWAY FROM THE SCENE OF THE ARREST, TO SECURE IDENTIFICATION
- AN OFFER WHICH PETITIONER MADE UPON ARRIVAL AT THE POLICE STATION AND
THE OFFICERS REJECTED. 

/8/  CF. UNITED STATES V. CARIGNAN, 342 U.S. 36, 46 (1951); CULOMBE
V. CONNECTICUT, 367 U.S. 568, 631-632 (1961).  RESPONDENT, THE CITY OF
NEW ORLEANS, URGES THAT IN 1958 IT ABANDONED THE PRACTICE OF ARRESTING
FOR VAGRANCY PENDING INVESTIGATION OF OTHER OFFENSES.  IF THIS IS SO,
THE CITY IS DESERVING OF COMMENDATION.  IRRESPECTIVE OF THE GENERAL
POLICY OF THE CITY, HOWEVER, THE INSTANT CASE CLEARLY DEMONSTRATES THAT
THE PRACTICE CONTINUES. 

/9/  STATE V. CHANDLER, 5 LA.ANN.  489 (1850); STATE V. SCOSSONI, 48
LA.ANN.  1464, 21 SO. 32 (1896); STATE V. BAPTISTE, 105 LA. 661, 30 SO.
147 (1901); STATE V. BOLDEN, 107 LA. 116, 31 SO. 393 (1902); STATE V.
SHORT, 120 LA. 187, 45 SO. 98 (1907); STATE V. ROBINSON, 143 LA. 543,
78 SO. 933 (1918); STATE V. VAN DUFF, 146 LA. 713, 84 SO. 29 (1920). 
SEE GENERALLY COMMENT, SELF-DEFENSE IN LOUISIANA-- THE CRIMINAL LAW AND
THE TORT LAW COMPARED, 16 TULANEL.REV.  609 (1942). 

/10/  LA. REV. STAT. SEC. 14:19.  THIS STATUTE HAS BEEN BROADLY
INTERPRETED BY THE LOUISIANA SUPREME COURT.  STATE V. ROWLAND, 246 LA.
729, 167 SO.2D 346 (1964).  SEE ALSO LA. REV. STAT. SECS. 14:18, 14:20,
14:21, 14:22. 

/11/  STATE V. TEDETON, 243 LA. 1031, 150 SO.2D 4 (1963).  HOWEVER,
THE ASSAULT IN THE TEDETON CASE WAS FOUND TO HAVE BEEN COMMITTED BEFORE
ANY ATTEMPTED ARREST. 

/12/  CITY OF MONROE V. DUCAS, 203 LA. 971, 979, 14 SO.2D 781, 784
(1943).  SEE ALSO LYONS V. CARROLL, 107 LA. 471, 31 SO. 760 (1902). 

MR. JUSTICE DOUGLAS, DISSENTING. 

IF THIS CASE IS TO BE DECIDED BY THE TRADITIONAL FOURTH AMENDMENT
STANDARDS APPLICABLE PRIOR TO TERRY V. OHIO, ANTE, P. 1, THE QUESTION
IS WHETHER A PERSON WHO IS UNCONSTITUTIONALLY ARRESTED MUST SUBMIT TO A
SEARCH OF HIS PERSON, OR WHETHER HE MAY OFFER AT LEAST TOKEN
RESISTANCE. 

POLICE OFFICERS WHILE CRUISING LATE ONE NIGHT SAW PETITIONER
STANDING ON A STREET CORNER AND CONCLUDED THAT HE FITTED THE GENERAL
DESCRIPTION OF A MURDER SUSPECT.  THEY ACCOSTED HIM AND ASKED HIM TO
IDENTIFY HIMSELF.  HE HAD NO IDENTIFICATION ON HIS PERSON, ONLY AT
HOME.  HE GAVE THE OFFICERS HIS NAME AND ADDRESS, AND INFORMED THEM
THAT HE WAS A LAW STUDENT.  THE OFFICERS TOLD HIM HE WAS BEING
QUESTIONED BECAUSE HE FITTED THE DESCRIPTION OF A MURDER SUSPECT WHO
HAD ON HIS LEFT FOREARM A TATTOO WHICH READ, "BORN TO RAISE HELL."  THE
OFFICERS ASKED HIM TO REMOVE THE COAT HE WAS WEARING SO THEY COULD
CHECK HIS FOREARM, BUT HE REFUSED.  HE WAS THEN "SEIZED" AND TAKEN TO
THE POLICE STATION, WHERE HE WAS ASKED TO REMOVE HIS JACKET.  HE
REFUSED, FOLDING HIS ARMS AND CROUCHING IN A CORNER.  THE OFFICERS THEN
ATTE-PTED TO TAKE HIS JACKET OFF, EACH PULLING ON ONE ARM.  THERE WAS
NO BATTLE OR FRACAS OF ANY CONSEQUENCE.  PETITIONER, HOWEVER, DID
RESIST THIS ATTEMPT BY MOVING ABOUT AND BY PUSHING ONE OFFICER TO ONE
SIDE AND THEN PUSHING THE OTHER OFFICER TO THE OTHER SIDE.  BUT SO FAR
AS THE RECORD SHOWS NO MORE VIOLENCE HAPPENED THAN THAT PRODUCED BY THE
COMBINED EFFORTS OF PETITIONER AND THE OFFICERS WHICH CAUSED THE
OFFICERS TO BE BUTTED AROUND THE ROOM.  HE DID NOT STRIKE AT THE
OFFICERS, OR KICK THEM, AND NONE OF THEM HAD ANY MARKS OR BRUISES OR
TORN CLOTHING.  /1/ 

HE WAS BOOKED ON THREE CHARGES-- VAGRANCY, RESISTING AN OFFICER, AND
REVILING THE POLICE. 

AT THE END OF THE STATE'S CASE PETITIONER MOVED FOR DISMISSAL OF THE
CHARGES.  THAT RULING WAS HELD UNDER ADVISEMENT AND PETITIONER WAS AT
ONCE ARRAIGNED ON THREE NEW CHARGES, ONE OF RESISTING AN OFFICER AND
TWO FOR DISTURBING THE PEACE BY ASSAULTING AN OFFICER.  THE TRIAL ON
THIS SECOND CASE WAS HAD AND PETITIONER FINED $25 ON EACH CHARGE OR
GIVEN 30 DAYS IN JAIL ON EACH CHARGE, THE SENTENCES BEING SUSPENDED. 
ON APPEAL THE CONVICTION OF RESISTING AN OFFICER WAS REVERSED, BUT HIS
CONVICTION ON TWO CHARGES OF DISTURBING THE PEACE WAS AFFIRMED BY THE
CRIMINAL DISTRICT COURT AND LATER BY THE SUPREME COURT OF LOUISIANA,
THE COMPLAINT IN THE FIRST CASE APPARENTLY BEING ABANDONED.  WHILE
PETITIONER TRIED TO GET THE APPELLATE COURTS TO INCORPORATE THE RECORD
IN THE FIRST CASE INTO THE RECORD IN THE SECOND, THAT WAS NOT DONE. 
BUT THAT DEFECT HAS BEEN REMEDIED HERE, THE TRANSCRIPTS OF ALL THE
HEARINGS NOW BEING BEFORE THE COURT. 

THE RECORDS BEFORE US DO NOT EVEN APPROACH ESTABLISHING PROBABLE
CAUSE FOR ARREST.  THE OFFICERS HAD NO WARRANT.  THEY DID NOT SEE
PETITIONER COMMIT ANY CRIME.  THERE WAS NO ARREST WHICH COULD BE
JUSTIFIED UNDER THE HEADING OF VAGRANCY.  THAT COULD BE MADE USE OF
ONLY BY THE FACTOR OF LOITERING, BUT PETITIONER WAS SEEN STANDING STILL
FOR ONLY FIVE TO 10 SECONDS.  TO BE SURE HE DID NOT HAVE IDENTIFICATION
PAPERS ON HIM AND "VERY LITTLE FUNDS."  BUT THOSE FACTORS OBVIOUSLY
COULD NOT BE INGREDIENTS OF A CRIME UNDER OUR PRESENT SYSTEM OF
GOVERNMENT.  CF.  THOMPSON V. LOUISVILLE, 362 U.S. 199. 

IT IS PLAIN THAT THE OFFICERS "SEIZED" PETITIONER TO QUESTION HIM
FURTHER CONCERNING A MURDER.  IT IS APPARENTLY ON THAT GROUND THAT THE
CRIMINAL DISTRICT COURT CONCLUDED THAT PETITIONER'S ARREST WAS
"LEGAL."  BUT HE WAS NOT ARRESTED FOR MURDER OR FOR ANY RELATED
OFFENSE, BUT ONLY FOR VAGRANCY.  THE CIRCUMSTANCES OF THIS CASE SHOW
THAT THE ARREST WAS NO MORE THAN ARREST ON SUSPICION, /2/  WHICH OF
COURSE WAS UNCONSTITUTIONAL-- AT LEAST PRIOR TO TERRY V. OHIO-- AND
ROBS THE SEARCH OF ANY COLOR OF LEGALITY.  HENRY V. UNITED STATES, 361
U.S. 98.     UNDER OUR AUTHORITIES (CF. ELK V. UNITED STATES, 177 U.S.
529, 534-535; AND SEE UNITED STATES V. DI RE, 332 U.S. 581, 594), AT
LEAST PRIOR TO THE ILL-STARRED CASE OF TERRY V. OHIO, A CITIZEN HAD THE
RIGHT TO OFFER SOME RESISTANCE TO AN UNCONSTITUTIONAL "SEIZURE" OR
"SEARCH."  MUST HE NOW STAND QUIETLY AND SUPINELY WHILE OFFICERS "PAT
HIM DOWN,"  WHIRL HIM AROUND, AND THROW HIM IN THE WAGON? 

THE PRESENT EPISODE MAY BE AN INSIGNIFICANT ONE AND THE HURT TO
PETITIONER NOMINAL.  BUT THE PRINCIPLE THAT A CITIZEN CAN DEFY AN
UNCONSTITUTIONAL ACT IS DEEP IN OUR SYSTEM.  THOMAS V. COLLINS, 323
U.S. 516, 532-537. 

WHEN IN A RECENT CASE (WRIGHT V. GEORGIA, 373 U.S. 284, 291-292), IT
WAS SAID THAT "FAILURE TO OBEY THE COMMAND OF A POLICE OFFICER
CONSTITUTES A TRADITIONAL FORM OF BREACH OF THE PEACE," WE MADE A
QUALIFICATION:  "OBVIOUSLY, HOWEVER, ONE CANNOT BE PUNISHED FOR FAILING
TO OBEY THE COMMAND OF AN OFFICER IF THAT COMMAND IS ITSELF VIOLATIVE
OF THE CONSTITUTION." 

WE SHOULD NOT LET THOSE FENCES OF THE LAW BE BROKEN DOWN. 

THIS CASE POINTS UP VIVIDLY THE DANGERS WHICH EMANATE FROM THE
COURT'S DECISION IN TERRY V. OHIO, THE SO-CALLED "STOP-AND-FRISK"
CASE.  IF THIS CASE IS TO BE DECIDED BY THE NEW TEST OF "SEARCHES" AND
"SEIZURES" ANNOUNCED IN THAT CASE, STARTLING PROBLEMS ARE PRESENTED. 
THE OFFICERS HERE HAD NO MORE THAN AN UNSUBSTANTIATED SUSPICION THAT
PETITIONER WAS A MURDER SUSPECT, A SUSPICION BASED ONLY ON A
SUPERFICIAL RESEMBLANCE BETWEEN PETITIONER AND THE WANTED MAN.  THUS
THEY HAD NO RIGHT TO "SEIZE" PETITIONER.  IS THE CASE DISMISSED AS
IMPROVIDENTLY GRANTED BECAUSE THE OFFICERS HAD "REASONABLE SUSPICION"
JUSTIFYING THE SEIZURE, OR REASONABLE GROUNDS TO BELIEVE THAT
PETITIONER WAS ARMED AND DANGEROUS?  THESE QUESTIONS ARE NOT ANSWERED
BY THE COURT; AND LEAVING THEM UNANSWERED GIVES A NEW IMPETUS TO TERRY
V. OHIO.  IF THIS "SEIZURE" WAS CONSTITUTIONAL, THEN THE SLEEPLESS
PROFESSOR WHO WALKS IN THE NIGHT TO FIND THE RELAZATION FOR SLEEP IS
EASY PREY TO THE POLICE, AS ARE THOUSANDS OF OTHER INNOCENT AMERICANS
RAISED IN THE STURDY ENVIRONMENT WHERE NO POLICEMAN CAN LAY A HAND ON
THE CITIZEN WITHOUT "PROBABLE CAUSE" THAT A CRIME HAS BEEN OR IS ABOUT
TO BE COMMITTED.  THAT WAS THE PHILOSOPHY OF WALT WHITMAN, VACHEL
LINDSAY, AND CARL SANDBURG AND IT WAS FAITHFULLY REFLECTED IN OUR LAW. 

THE INTEREST OF SOCIETY IN APPREHENDING MURDERERS IS OBVIOUSLY
STRONG; YET WHEN THE MANHUNT IS ON, PASSIONS OFTEN CARRY THE DAY.  I
FEAR THE LONG AND SHORT OF IT IS THAT AN OFFICER'S "SEIZURE" OF A
PERSON ON THE STREET, EVEN THOUGH NOT MADE UPON "PROBABLE CAUSE," MEANS
THAT IF THE SUSPECT RESISTS THE "SEIZURE," HE MAY THEN BE TAKEN TO THE
POLICE STATION FOR FURTHER INQUISITION.  THAT IS A TERRIFYING SPECTACLE
- A PERSON IS PLUCKED OFF THE STREET AND WHISKED TO THE POLICE STATION
FOR QUESTIONING AND IDENTIFICATION MERELY BECAUSE HE RESEMBLES THE
SUSPECTED PERPETRATOR OF A CRIME.  I FEAR THAT WITH TERRY AND WITH
WAINWRIGHT WE HAVE FORSAKEN THE WESTERN TRADITION AND TAKEN A LONG STEP
TOWARD THE OPPRESSIVE POLICE PRACTICES NOT ONLY OF COMMUNIST REGIMES
BUT OF MODERN IRAN, "DEMOCRATIC" FORMOSA, AND FRANCO SPAIN, WITH WHICH
WE ARE NOW EVEN MORE CLOSELY ALLIED. 

/1/  I DO NOT, AS MY BROTHER HARLAN AND FORTAS SUGGEST, CONSIDER THE
RECORD TOO SKETCHY FOR DETERMINING THE DEGREE OF FORCE EMPLOYED BY
PETITIONER IN RESISTING THE OFFICERS.  THE RECORD DISCLOSES THAT NO
VIOLENCE AND LITTLE FORCE WERE USED BY PETITIONER. 

LIEUTENANT MARTELLO, THE OFFICER APPARENTLY IN CHARGE OF THE STATION
TO WHICH PETITIONER WAS TAKEN, TESTIFIED AS FOLLOWS: 

"MR. WAINWRIGHT REFUSED TO TAKE HIS JACKET OFF . . . SO I INSTRUCTED
HIM I WOULD HAVE THE JACKET REMOVED BY THE DOORMAN. 

"HE AGAIN REFUSED.  HE WALKED INTO A CORNER, GRABBED HIS JACKET BY
HIS HANDS, FOLDING HIS ARMS, AND HE SAID, 'IF YOU WANT THIS JACKET OFF
TAKE IT OFF.' 

        .          .          .          . 

"OFFICER O'ROURKE AND OFFICER GILFORD ASKED HIM TO TAKE THE JACKET
OFF AND HE DIDN'T RESPOND, SO THEY PHYSICALLY TOOK THE JACKET OFF OF
HIM.  HE DONE EVERYTHING IN HIS POWER TO KEEP THEM FROM REMOVING THE
JACKET.  IN THIS OPERATION THE OFFICERS WERE BOUNCED FROM WALL TO WALL
PHYSICALLY, AND WITH THE ASSISTANCE OF A COUPLE OF OTHER POLICE
OFFICERS THEY PUT HANDCUFFS ON ONE OF HIS ARMS, AND THEY REMOVED HIS
JACKET." 

ON CROSS-EXAMINATION, MARTELLO ELABORATED: 

"Q.  YOU TESTIFIED THAT MR. WAINWRIGHT CROUCHED IN A CORNER, HELD
HIS JACKET TO HIM, NOW WHAT DID HE DO WHEN OFFICERS O'ROURKE AND
GILFORD TRIED TO REMOVE IT? 

"A.  HE TRIED TO KEEP IT ON BY HOLDING IT. 

"Q.  HOW? 

"A.  BY FOLDING HIS ARMS (DEMONSTRATES). 

"Q.  HE DIDN'T DO ANYTHING ELSE? 

"A.  NO, NOT TO MY KNOWLEDGE. 

"Q.  IF OFFICER O'ROURKE AND OFFICER GILFORD GOT THROWN AROUND THE
ROOM, IT WAS THROUGH THEIR OWN EFFORT? 

"A.  NO, IT WAS THE COMBINED EFFORT OF MR. WAINWRIGHT IN HIS REFUSAL
TO REMOVE THE JACKET.  FORCE WAS NECESSARY TO REMOVE THE JACKET BY THE
OFFICERS. 

"Q.  HE DIDN'T DO ANYTHING BUT TRY TO HOLD THE JACKET ON? 

"A.  THEY TRIED TO TAKE IT OFF, AND HE WAS TRYING TO KEEP THE JACKET
ON. 

"Q.  HE HELD VERY STILL? 

"A.  NO, IT WAS A STRUGGLE. 

"Q.  DID HE STRIKE OUT AT THE OFFICERS? 

"A.  NO. 

"Q.  DID HE KICK THE OFFICERS? 

"A.  I DIDN'T SEE HIM.  HE COULD HAVE.  I DIDN'T SEE HIM.  IT WASN'T
VISIBLE TO ME." 

LATER, IN ANSWER TO A QUESTION POSED BY THE COURT, MARTELLO STATED
THAT NONE OF THE FOUR OFFICERS WHO REMOVED PETITIONER'S JACKET SUFFERED
ANY "MARKS, BRUISES, OR TORN CLOTHING." 

ON CROSS-EXAMINATION OFFICER O'ROURKE TESTIFIED AS FOLLOWS: 

"Q. HOW WAS HE (PETITIONER) PUSHING YOU AROUND?  DID HE STRIKE OUT
AT SOMEONE? 

"A.  NO. LIKE A FOOTBALL PLAYER GOING THROUGH A LINE. 

"Q.  DID HE TRY TO RUN? 

"A.  NO, DANCING FROM WALL TO WALL." 

/2/  WHAT TRANSPIRED AFTER THE ARREST FOR VAGRANCY DEMONSTRATES THAT
THE OFFICERS MERELY SUSPECTED PETITIONER WAS INVOLVED IN THE MURDER
BECAUSE OF A SUPERFICIAL RESEMBLANCE TO THE WANTED MAN.  OFFICERS
TESTIFIED THAT THE REASON THEY WISHED TO REMOVE PETITIONER'S JACKET
AFTER HE WAS IN CUSTODY WAS TO SEE IF HIS ARM WAS TATTOOED-- THAT IS,
TO ASCERTAIN IF PETITIONER'S RESEMBLANCE TO THE MURDER SUSPECT WAS MORE
THAN SUPERFICIAL. 

MELVIN L. WULF ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE NORMAN DORSEN AND MARVIN M. KARPATKIN. 

RICHARD C. SEITHER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS ALVIN J. LISKA. 
..END :









MILLER V. CALIFORNIA, 392 U.S. 616 


       MILLER V. CALIFORNIA. 

        CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FOURTH

           APPELLATE DISTRICT. 

        NO. 154.  ARGUED MARCH 26, 1968.-- DECIDED JUNE 17, 1968. 


245 CAL.APP.2D 112, 53 CAL.RPTR.  720, CERTIORARI DISMISSED. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE MARSHALL, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

THE COURT MAY LEAVE THIS JUDGMENT STANDING ONLY UPON ONE OR MORE OF
THE FOLLOWING GROUNDS:  THAT THERE WAS NO CONSTITUTIONAL ERROR IN
PETITIONER'S TRIAL; THAT WHETHER OR NOT THERE WAS ERROR, OBJECTION TO
IT WAS WAIVED; OR THAT THE ERROR WAS HARMLESS.  NONE OF THOSE GROUNDS
ARE PERSUASIVE TO ME, AND I WOULD REVERSE. 

THE FACTS OF THE CASE ARE AS FOLLOWS.  A SHORT TIME AFTER MIDNIGHT
ON OCTOBER 8, 1964, PETITIONER'S HUSBAND WAS KILLED IN THE
CONFLAGRATION OF THE AUTOMOBILE IN WHICH HE AND PETITIONER HAD BEEN
RIDING.  LATER THAT DAY, AT ABOUT 1:30 P.M., PETITIONER WAS ARRESTED
FOR MURDER, AND WAS TAKEN TO A COUNTY JAIL, WHERE SHE WAS BOOKED ON
THAT CHARGE AND PLACED IN A CELL.  SHE WAS MET AT THE JAIL BY A LAWYER,
A FAMILY FRIEND WHO HAD BEEN CALLED BY PETITIONER SHORTLY AFTER THE
FIRE.  THE NIGHT OF HER ARREST PETITIONER SPOKE WITH A POLICE OFFICER
FOR SEVERAL HOURS AT THE JAIL, ANSWERING QUESTIONS AND RECITING HER
VERSION OF WHAT SHE CLAIMED TO HAVE BEEN AN ACCIDENTAL FIRE. 

IN AN ATTEMPT TO PREVENT QUESTIONING OF HIS CLIENT, PETITIONER'S
COUNSEL SET UP, WITH HIS ASSOCIATES, A 24-HOUR-A-DAY WATCH OF HER
CELL.  THEREAFTER, AT ABOUT 11 P.M. ON OCTOBER 9, PEGGY FISK, AN
UNDERCOVER AGENT IN THE EMPLOY OF THE COUNTY SHERIFF'S OFFICE, WAS
FALSELY BOOKED INTO THE JAIL ON A FICTITIOUS NARCOTICS CHARGE AND
PLACED IN PETITIONER'S CELL.  TWO OTHER PRISONERS WHO HAD SHARED THE
CELL WERE LATER REMOVED.  FISK DID NOT ADVISE PETITIONER THAT SHE WAS
AN AGENT OF THE SHERIFF PLACED IN THE CELL TO REPORT ON ANYTHING
PETITIONER MIGHT SAY.  SE REMAINED ALONE WITH PETITIONER UNTIL OCTOBER
15, GIVING ORAL REPORTS AS TO THEIR CONVERSATIONS FROM TIME TO TIME TO
THE SHERIFF'S OFFICE; A WRITTEN REPORT WAS PREPARED ON OCTOBER 12 AND
PARTLY ON OCTOBER 14. 

ON OCTOBER 13, A COMPLAINT WAS FILED FORMALLY CHRARGING PETITIONER
WITH MURDER; PETITIONER WAS ARRAIGNED THAT DAY ON THE COMPLAINT.  /1/
AN INDICTMENT WAS RETURNED ON OCTOBER 20, AND THE COMPLAINT WAS THEN
DISMISSED. 

IT WAS THE STATE'S THEORY AT TRIAL THAT PETITIONER DID NOT LOVE HER
HUSBAND; THAT SHE DRUGGED HIM AND THEN SET THE AUTOMOBILE ON FIRE; AND
THAT SHE KILLED HIM IN ORDER TO BE FREE TO MARRY ONE ARTHWELL HAYTON
AND TO COLLECT SOME $100,000 IN INSURANCE PROCEEDS.  THE DEFENSE THEORY
WAS THAT THE FIRE WAS OF ACCIDENTAL, RATHER THAN INCENDIARY, ORIGIN. 
THE DEFENSE CONTENDED THAT ALTHOUGH PETITIONER WAS IN LOVE WITH HAYTON
UNTIL HER HUSBAND'S DEATH THE AFFAIR BETWEEN THEM HAD TERMINATED
SEVERAL MONTHS EARLIER, PETITIONER HAD GIVEN UP ANY THOUGHT OF MARRYING
HAYTON, AND HAD BEEN RECONCILED WITH HER HUSBAND; AND THAT SHE WOULD
NOT BE MOTIVATED TO KILL HER HUSBAND FOR THE INSURANCE SINCE HE EARNED
SOME $30,000 A YEAR IN HIS DENTAL PRACTICE. 

FISK WAS CALLED AS A PROSECUTION WITNESS AT TRIAL AND TESTIFIED THAT
PETITIONER TOLD HER IN THE CELL AFTER HER ARREST FOR MURDER THAT "SHE
DID NOT LOVE HER HUSBAND BUT SHE RESPECTED HIM"; THAT "SHE HAD ALWAYS
LOVED MR. HAYTON AND STILL LOVES HIM"; THAT "SHE WOULD RECEIVE OVER A
HUNDRED THOUSAND DOLLARS IN INSURANCE BECAUSE OF THE ACCIDENTAL DEATH";
AND THAT "AS SOON AS THIS MESS WAS OVER, THAT SHE PLANNED TO TAKE (HER
CHILDREN) . . AWAY TO EUROPE WITH THE INSURANCE MONEY." 

THE DISTRICT ATTORNEY RELIED UPON AND EMPHASIZED FISK'S TESTIMONY IN
HIS ARGUMENT TO THE JURY.  SEE INFRA, AT 628-629.  AFTER DELIBERATING
FOR MORE THAN THREE DAYS, THE JURY RETURNED A VERDICT THAT PETITIONER
WAS GUILTY OF MURDER IN THE FIRST DEGREE.  SHE WAS LATER SENTENCED TO
LIFE IMPRISONMENT. 

        I. 

ALTHOUGH THE ISSUE IS NOT FREE FROM DIFFICULTY, IT SEEMS TO ME THE
RECORD CLEARLY REVEALS PETITIONER ADEQUATELY RAISED AND PRESERVED HER
FEDERAL CONSTITUTIONAL OBJECTION TO FISK'S TESTIMONY.  THAT ISSUE
ARISES IN THE FOLLOWING CONTEXT. 

TOWARD THE CLOSE OF ITS CASE IN CHIEF, THE PROSECUTION CALLED FISK
AS A WITNESS.  PETITIONER'S TRIAL COUNSEL IMMEDIATELY OBJECTED, BEFORE
FISK WAS SWORN, TO HER TESTIMONY AT THAT TIME, ON THE GROUND THAT HE
HAD NOT BEEN GIVEN HER ADDRESS PRIOR TO HER TESTIFYING AS HE HAD BEEN
PROMISED.  THERE THEN OCCURRED AN EXTENDED CONFERENCE IN THE JUDGE'S
CHAMBERS. 

IN CHAMBERS, PETITIONER'S COUNSEL MADE TWO OBJECTIONS TO FISK'S
TESTIMONY.  HE FIRST DISCUSSED THE OBJECTION RAISED IN THE PRESENCE OF
THE JURY THAT HE HAD NOT BEEN GIVEN THE WITNESS' ADDRESS AS HE HAD BEEN
PROMISED, SO THAT HE MIGHT INTERVIEW HER.  HE THEN PRESENTED
EXTENSIVELY THE CONSTITIONAL OBJECTION TO ANY TESTIMONY AT ALL FROM
FISK, DISCUSSING THE CIRCUMSTANCES GIVING RISE TO THE CONTENTION AND
CITING THE RELEVANT CASES.  /2/ THE DISTRICT ATTORNEY FIRST EXPLAINED
WHY HE HAD BEEN UNABLE TO PROVIDE COUNSEL WITH FISK'S ADDRESS AND
ACKNOWLEDGED THAT HE HAD FORGOTTEN THE REQUEST, WHICH WAS APPARENTLY
BASED ON THE FACT THAT DEFENSE COUNSEL HAD BEEN SHOWN, A MONTH OR SO
EARLIER, A REPORT OF THE SHERIFF CONCERNING THE WITNESS IN WHICH SHE
HAD BEEN IDENTIFIED AS "JACKIE DOE."  HE ATTEMPTED TO DISTINGUISH THE
CASES CITED BY PETITIONER'S COUNSEL, AND ELABORATED SOMEWHAT ON FISK'S
ACTIVITIES.  /3/ 

AS TO THE FIRST GROUND OF OBJECTION, THE TRIAL JUDGE SAID "IN VIEW
OF THE CIRCUMSTANCES RELATED THAT MR. FOLEY (DEFENSE COUNSEL) WAS
PROMISED AN OPPORTUNITY TO TALK TO THIS WITNESS," FISK SHOULD BE
WITHDRAWN AT THAT TIME.  THE DISTRICT ATTORNEY AGREED TO WITHDRAW HER. 
THE TRIAL JUDGE THEN TURNED TO THE CONSTITUTIONAL GROUND OF OBJECTION. 
IT HAD BEEN CLEARLY DISCLOSED AT THE CONFERENCE THAT FISK SPENT ALMOST
A WEEK IN PETITIONER'S CELL, WITHOUT DISCLOSING HER IDENTITY, AND WOULD
TESTIFY CONCERNING STATEMENTS MADE TO HER BY PETITIONER.  THE DISTRICT
ATTORNEY SAID HE WOULD CALL HER AS A WITNESS THE NEXT DAY AND STATED TO
THE JUDGE, AS TO PETITIONER'S CONSTITUTIONAL OBJECTION:  "YOU WOULD
HAVE TO WAIT AND LISTEN TO THE VOIR DIRE ON THE STAND AND SEE."  THE
FOLLOWING COLLOQUY, CONCLUDING THE IN-CHAMBERS CONFERENCE, ENSUED: 

     "THE COURT:  . . . (YOU WILL HAVE THE OPPORTUNITY TO TALK TO

  HER BUT ON THE OTHER OBJECTION, WE WOULD HAVE TO HAVE HER SWORN

  AND AT LEAST TESTIFY TO THE PRELIMINARY QUESTIONS ANYWAY, AND

  HAVE AN OBJECTION MADE AT THE PROPER TIME. 

 "MR. FOLEY:  YOU KNOW THAT ISN'T RIGHT, YOUR HONOR. 

 "THE COURT:  UNLESS YOU WANT ME TO LOOK AT THIS (SHERIFF'S)

  REPORT AND SEE WHAT SHE KNOWS.  DOES THIS REPORT INDICATE? 

     "MR. TURNER (DISTRICT ATTORNEY):  THERE HAS TO BE A FOUNDATION

  LAID, AN OBJECTION MADE.  THERE IS NO WAY TO-- 

     "THE COURT:  I THINK THERE WOULD HAVE TO BE. I DON'T SEE HOW

  THAT COULD BE DONE IN THE ABSENCE OF THE JURY."  (EMPHASIS

  ADDED.) 

THE FOLLOWING DAY FISK WAS CALLED AS A WITNESS.  THE DISTRICT
ATTORNEY ASKED SOME PRELIMINARY QUESTIONS.  FISK WAS IDENTIFIED AS
HAVING BEEN EMPLOYED THE PREVIOUS OCTOBER BY THE COUNTY SHERIFF AS AN
UNDERCOVER AGENT, AND IT WAS ELICITED THAT IN THE COURSE OF THAT
EMPLOYMENT SHE WAS ASSIGNED THE TASK OF PRETENDING TO BE A PRISONER IN
JAIL WITH PETITIONER, WHERE SHE BECAME ACQUAINTED AND TALKED WITH HER. 
WHEN THE DISTRICT ATTORNEY ASKED FISK IF PETITIONER HAD DISCUSSED HER
"DOMESTIC PROBLEMS WITH HER HUSBAND," COUNSEL FOR PETITIONER ASKED IF
HE MIGHT "ASK A QUESTION ON VOIR DIRE."  HE ELICITED THAT FISK HAD NOT
IDENTIFIED HERSELF AS A POLICE AGENT TO PETITIONER, AND HAD NOT ADVISED
PETITIONER SHE COULD HAVE AN ATTORNEY PRESENT WHEN THEY TALKED.  DIRECT
EXAMINATION WAS THEN RESUMED BY THE DISTRICT ATTORNEY.  FISK THEN
TESTIFIED CONCERNING PETITIONER'S STATEMENTS TO HER, SEE SUPRA, AT
618. 

ON CROSS-EXAMINATION, PETITIONER'S COUNSEL ELICITED ANSWERS
CONCERNING FISK'S BEING PLACED IN PETITIONER'S CELL, REPORTING TO THE
SHERIFF, AND ACTIVITIES IN THE CELL (SEE INFRA, AT 626).  HE ALSO
ELICITED THAT PETITIONER HAD TOLD FISK THE FIRE WAS ACCIDENTAL, AND, IN
SHORT, A STORY CONCERNING HER HUSBAND'S DEATH CONSISTENT WITH THAT
WHICH PETITIONER HAD RELATED TO THE POLICE AT THE SCENE AND IN
QUESTIONING AT THE JAIL, AND CONSISTENT WITH PETITIONER'S CLAIM OF
INNOCENCE. 

IN THESE CIRCUMSTANCES RESPONDENT CONTENDS THAT IT IS "OBVIOUS" THAT
PETITIONER'S TRIAL COUNSEL, FOLLOWING HIS INTERVIEW WITH FISK, MADE A
TACTICAL JUDGMENT THAT HER TESTIMONY WOULD BE HELPFUL, AND THEREFORE
THAT THE FEDERAL CLAIM IS NOT AVAILABLE TO PETITIONER HERE BECAUSE IT
WAS WAIVED.  I FIND THAT VIEW UNACCEPTABLE. 

THE DISTRICT COURT OF APPEAL CLEARLY AGREED THAT PETITIONER'S
FEDERAL CONTENTION BASED ON OUR DECISIONS IN MASSIAH AND ESCOBEDO WAS
VALID.  245 CAL.APP.2D 112, 144, 43 CAL.RPTR.  720, 740.  THE COURT
STATED IT DID NOT REVERSE THE CONVICTION ONLY BECAUSE IT VIEWED FISK'S
TESTIMONY AS NONPREJUDICIAL.  IBID.  HOWEVER, IT WENT ON TO SAY THAT
PETITIONER WAIVED THE POINT BY FAILING TO OBJECT WHEN FISK WAS CALLED
THE DAY FOLLOWING THE IN-CHAMBERS CONFERENCE, OR, TO PUT IT ANOTHER
WAY, THAT "IT IS REASONABLE TO ASSUME THAT DEFENSE COUNSEL WAS WILLING
TO HAVE PEGGY (FISK) TESTIFY" IN THE CIRCUMSTANCES.  245 CAL.APP.2D,AT
143, 53 CAL.RPTR.,AT 740.  /4/  I THINK IT SIGNIFICANT TO NOTE THAT THE
SUPREME COURT OF CALIFORNIA SPECIFICALLY DISAPPROVED THE LANGUAGE OF
THE DISTRICT COURT OF APPEAL IN THIS CASE WITH RESPECT TO WAIVER OF
OBJECTIONS TO ADMISSION OF EVIDENCE OBTAINED IN VIOLATION OF "ESCOBEDO
DORADO" BY A MERE FAILURE TO OBJECT, SEE PEOPLE V. DOHERTY, 67 CAL.2D
9, 14, 429 P.2D 177, 180 (1967), AND IN THE SAME DECISION CAST
CONSIDERABLE DOUBT ON THE APPROACH OF THE DISTRICT COURT OF APPEAL IN
THIS CASE TOWARD PRESUMING OR ASSUMING THAT THE FAILURE TO OBJECT WAS A
CONSIDERED TRIAL STRATAGEM.  /5/ 

IN ANY EVENT, THIS COURT HAS LONG HELD THAT A WAIVER OF A FEDERAL
CONSTITUTIONAL RIGHT IS NOT LIGHTLY TO BE PRESUMED.  SEE, E.G., JOHNSON
V. ZERBST, 304 U.S. 458 (1938).  IN THIS CASE COUNSEL CLEARLY APPRISED
THE TRIAL COURT OF THE BASIS OF THIS OBJECTION, AND INDEED HE CITED THE
SPECIFIC DECISIONS THAT CLEARLY SUPPORTED THE CLAIM.  SURELY THERE WAS
NO BYPASSING OF THE STATE COURTS ON THE ISSUE. 

CONCERNING THE FAILURE TO RENEW THE OBJECTION, I NOTE THAT THE TRIAL
JUDGE APPEARS CLEARLY TO HAVE REQUIRED PETITIONER TO RAISE THE ISSUE
ANEW IN FRONT OF THE JURY AND AFTER PRELIMINARY QUESTIONS CLEARLY
IDENTIFIED HER AS HAVING ENGAGED IN CONVERSATIONS WITH PETITIONER AS AN
UNDERCOVER AGENT IN THE JAIL PRETENDING TO BE A FELLOW PRISONER.  AS
PETITIONER'S TRIAL COUNSEL SAID IN A MOTION FOR A NEW TRIAL:  "THE
DEFENDANT WAS THEN PLACED IN THE UNFORTUNATE POSITION OF BEING FORCED
TO OBJECT IN FRONT OF THE JURY.  IF THE OBJECTION WERE SUSTAINED, THE
JURY MIGHT WELL . . . INFER THAT THROUGH A TECHNICALITY THE DEFENDANT
HAD MANAGED TO KEEP OUT OF EVIDENCE A FULL CONFESSION." 

THUS THE MOST THAT CAN BE SAID ON THIS RECORD IS THAT TRIAL COUNSEL-
HAVING PREVIOUSLY RAISED THE OBJECTION-- PREFERRED TO HAVE FISK'S
TESTIMONY ADMITTED RATHER THAN OBJECTING TO IT IN THE PRESENCE OF THE
JURY AFTER FISK HAD BEEN IDENTIFIED.  CF. JACKSON V. DENNO, 378 U.S.
368 (1964); PEOPLE V. SCHADER, 62 CAL.2D 716, 727-728, 401 P.2D 665,
672 (1965).  PLACING A DEFENDANT IN THAT KIND OF A DILEMMA WITH RESPECT
TO RENEUING A FEDERAL CONSTITIONTIONAL OBJECTION SERVES NO VALID
PURPOSE.  DOUGLAS V. ALABAMA, 380 U.S. 415, 422 (1965).  AND WHILE
RESPONDENT INDICATES HERE THAT CALIFORNIA LAW PERMITS A DEFENDANT TO
OBJECT TO THE ADMISSION OF EVIDENCE AND ESTABLISH A BASIS FOR THE
OBJECTION OUTSIDE THE PRESENCE OF THE JURY (CITING SCHADER, SUPRA),
THAT WAS NEITHER THE IMPORT OF THE TRIAL JUDGE'S RULING IN THIS CASE
NOR THE VIEW OF THE DISTRICT ATTORNEY AT THIS TRIAL (SEE SUPRA, AT 619
620). 

SINCE THE RECORD REVEALS THE TRIAL COURT AND THE PROSECUTION WERE
CLEARLY APPRISED OF THE CONSTITUTIONAL CLAIM, SINCE THE STATE COURT AT
LEAST ALTERNATIVELY PASSED UPON THE VALIDITY OF ,HAT CLAIM, AND SINCE
IT CANNOT BE SAID ON THE RECORD THAT THE FAILURE TO RENEW THE OBJECTION
WAS ANYTHING MORE THAN A DECISION REFLECTING THE TRIAL JUDGE'S RULING
THAT THE OBJECTION BE VOICED BEFORE THE JURY, I SHOULD THINK IT
PERFECTLY CLEAR THAT THE ISSUE WAS ADEQUATELY PRESERVED.  /6/

        II. 

NOTWITHSTANDING THAT RESPONDENT'S OWN COURTS VIEWED FISK'S PLACEMENT
AND ACTIVITIES IN PETITIONER'S CELL AS UNCONSTITUTIONAL, RESPONDENT
HERE ATTEMPTS TO DEFEND THE SHERIFF'S ACTION ON TWO GROUNDS, BO,H OF
WHICH ARE PATENTLY WITHOUT SUBSTANCE. 

RESPONDENT CONTENDS THAT PETITIONER'S CONSTITUTIONAL RIGHTS WERE NOT
VIOLATED, BECAUSE FISK WAS PLACED IN THE CELL PRIOR TO ANY FORMAL
CHARGE BEING FILED AGAINST PETITIONER.  TO BE SURE, IT IS EMPHASIZED IN
MASSIAH V. UNITED STATES, 377 U.S. 201, 204-206 (1964), THAT THE
DEFENDANT THERE HAD BEEN INDICTED AND THAT AN INDICTMENT MARKS A POINT
AT WHICH THE FORMAL ADVERSARY PROCESS BEGINS.  THUS, THE COURT HELD
THAT STATEMENTS OBTAINED ON BEHALF OF THE PROSECUTION BY A CO
CONSPIRATOR OF THE DEFENDANT DURING CONVERSATIONS IN THE FORMER'S
AUTOMOBILE, VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO COUNSEL
/7/  SINCE HE HAD BEEN INDICTED AND WAS ALREADY REPRESENTED BY
COUNSEL.  AT THE SAME TERM, THE FAILURE TO HONOR THE RIGHT TO COUNSEL
WAS RECOGNIZED AT AN EARLIER STAGE IN RESPECT TO INTERROGATIONS,
NAMELY, WHEN, AMONG OTHER THINGS, "THE INVESTIGATION IS NO LONGER A
GENERAL INQUIRY INTO AN UNSOLVED CRIME BUT HAS BEGUN TO FOCUS ON A
PARTICULAR SUSPECT . . . ."  ESCOBEDO V. ILLINOIS, 378 U.S. 478, 490
(1964).  THAT LANGUAGE APPLIES HERE.  PETITIONER HAD BEEN ARRESTED AND
BOOKED FOR MURDER.  CLEARLY, GIVEN THE CIRCUMSTANCES OF THE FIRE, IF A
CRIME HAD BEEN COMMITTED, PETITIONER HAD DONE IT.  IN PRACTICAL EFFECT
THE CRIMINAL PROCEEDINGS HAD BEGUN, FOR IT IS CLEAR FROM THE ARREST,
FROM PETITIONER'S INITIAL QUESTIONING, AND FROM THE DECISION TO USE
FISK THAT THE SHERIFF'S OFFICE HAD CEASED MERELY A GENERAL INQUIRY INTO
THE CAUSE OF THE FIRE.  /8/     INDEED, IN ONE RESPECT AT LEAST, THIS
IS A CLEARER CASE THAN MASSIAH:  UNLIKE THE DEFENDANT THERE, WHO HAD
BEEN RELEASED ON BAIL, PETITIONER WAS IN CUSTODY WITHOUT BAIL, WITH A
CONSEQUENT LACK OF FREEDOM TO CHOOSE HER COMPANIONS.  AND PETITIONER,
LIKE THE DEFENDANTS IN MASSIAH AND ESCOBEDO, WAS REPRESENTED BY COUNSEL
AT ALL TIMES.  MOREOVER, A FORMAL COMPLAINT CHARGING PETITIONER WITH
MURDER WAS FILED ON OCTOBER 13, AND FISK REMAINED IN PETITIONER'S CELL,
ELICITING INFORMATION OR CONVERSING WITH PETITIONER UNTIL OCTOBER 15. 
/9/ 

BOTH STATE COURTS, SEE, E.G., PEOPLE V. FLORES, 236 CAL.APP.2D 807, 46
CAL.RPTR.  412 (1965), CERT. DENIED, 384 U.S. 1010 (1966) (JAIL CELL
PLANT); PEOPLE V. LUDLUM, 236 CAL.APP.2D 813, 45 CAL.RPTR.  375 (1965),
AND LOWER FEDERAL COURTS, SEE, E.G., CLIFTON V. UNITED STATES, 341 F.2D
649 (C.A. 5TH CIR. 1965), HAVE HELD THAT THE RIGHT TO COUNSEL AS
INTERPRETED IN MASSIAH AND ESCOBEDO BARS THE ADMISSION OF STATEMENTS
OBTAINED AT SOME PREINDICTMENT POINT, AT LEAST WHEN THE ACCUSATORY
STAGE HAS BEEN REACHED AND THE POLICE HAVE CLEARLY FOCUSED UPON THE
SUBJECT.  /10/  HOWEVER THAT STAGE BE DEFINED, IT WAS CLEARLY REACHED
HERE. 

RESPONDENT ALSO CONTENDS THAT PETITIONER'S CONSTITUTIONAL RIGHTS
WERE NOT VIOLATED, BECAUSE FISK ENGAGED IN NO "PROCESS OF
INTERROGATIONS," ESCOBEDO V. ILLINOIS, 378 U.S.,AT 491, DESIGNED TO
OBTAIN A CONFESSION FROM PETITIONER, OR THAT STATEMENTS FROM HER HAD
NOT BEEN "DELIBERATELY ELICITED," MASSIAH V. UNITED STATES, 377 U.S.,AT
206.  IN THE STATE'S VIEW, SO LONG AS FISK ACTED SIMPLY AS A LISTENING
POST, SHE COULD TESTIFY AS TO ANY STATEMENTS MADE TO HER BY
PETITIONER.  THAT VIEW WAS, HOWEVER, REJECTED IN MASSIAH ITSELF.  THE
GOVERNMENT IN THAT CASE POINTED TO THE FACT THAT THE RECORD DID NOT
REVEAL THAT ITS AGENT HAD INDUCED THE DEFENDANT BY PERSUASION (THERE
BASED ON FRIENDHSIP) TO DISCUSS HIS ACTIVITIES, AND URGED THAT
"PROVIDING A DEFENDANT AN OPPORTUNITY TO TALK"  /11/  DID NOT VIOLATE
HIS RIGHT TO COUNSEL.  SEE ALSO BEATTY V. UNITED STATES, 389 U.S. 45
(1967), REVERSING 377 F.2D 181 (C.A. 5TH CIR.). 

AT ALL EVENTS, FISK WAS NOT PUT IN THE CELL TO DISCUSS THE WEATHER,
TO CONSOLE PETITIONER, OR MERELY TO PROVIDE HER WITH COMPANIONSHIP. 
HER PRESENCE ITSELF WAS AN INDUCEMENT TO SPEAK, AND AN INDUCEMENT BY A
POLICE AGENT.  WHILE PETITIONER'S STATEMENTS TO HER WERE NOT OBTAINED
BY COERCIVE MEANS, THEY CERTAINLY WERE NOT GIVEN, IN LIGHT OF THE
DECEPTION, THROUGH A KNOWING AND INTELLIGENT WAIVER OF PETITIONER'S
RIGHTS. 

FURTHERMORE, IT IS CLEAR ON THIS RECORD THAT FISK WAS PLANTED IN
PETITIONER'S CELL IN ORDER TO SUBVERT HER RIGHT TO COUNSEL, WITH THE
EXPRESS PURPOSE OF ATTEMPTING TO OBTAIN EVIDENCE OUT OF HER MOUTH.  ON
ONE OCCASION, FISK WAS GIVEN A NEWSPAPER CLIPPING CONCERNING THE CASE
AND WAS TOLD TO SHOW IT TO PETITIONER, WHICH SHE DID WITH SOME
ACCOMPANYING STATEMENT, SUCH AS THE PRESS IS "RUINING YOU."  ON ANOTHER
OCCASION, PURSUANT TO INSTRUCTIONS, FISK TOLD PETITIONER OF A
CONVERSATION THAT SHE HAD SUPPOSEDLY OVERHEARD IN A HALL BETWEEN FOUR
MEN WHOM SHE THOUGHT WERE FROM THE DISTRICT ATTORNEY'S OFFICE, IN WHICH
ONE OF THE MEN, AS THE RUSE WENT, SAID:  "GETTING BACK TO THE MILLER
CASE, ARTHWELL HAYTON CAME IN AND BLEW THE TOP OFF THE CASE."  FISK
ALSO TOLD PETITIONER "I PUT ALL MY TRUST IN MR. BLAND (THE SHERIFF) AND
MAYBE IT WOULD DO SOME GOOD FOR YOU IF YOU TRIED THE SAME."  FINALLY,
FISK SAID THAT HAD AT ONE TIME BEEN REPRESENTED BY AN ATTORNEY WHO "DID
NOT DO ME MUCH GOOD" AND INDICATED THAT PERHAPS PETITIONER SHOULD
SUSPECT HERS.  /12/ 

SUCH DELIBERATE POLICE DECEPTION AND SUBVERSION OF A DEFENDANT'S
RIGHTS SHOULD NOT BE CONDONED.  THE DISTRICT COURT OF APPEALS SAID IN
THIS CASE: 

     "IT IS ALMOST INCREDIBLE THAT IN THESE DAYS OF ENLIGHTENED

  TREATMENT BY PROSECUTION AUTHORITIES OF PERSONS CHARGED WITH

  CRIME, THE PEGGY FISK INCIDENT COULD HAVE OCCURRED . . . .

.          .          .          .

     "THE TRICK ATTEMPTED BY THE AUTHORITIES IN WHICH THEY

  APPARENTLY HOPED TO OBTAIN INCRIMINATING STATEMENTS FROM

  DEFENDANT AND TO GET HER TO THROW HERSELF ON THE ALLEGED MERCY OF

  THE SHERIFF AND TO SUSPECT HER OWN ATTORNEY WAS COMPLETELY

  INDEFENSIBLE . . . ."  (245 CAL.APP.2D,AT 141, 143-144, 53

  CAL.RPTR.,AT 738, 740.  /13/  )

I AGREE, AND I WOULD NOT LEAVE STANDING A JUDGMENT REFLECTING SUCH AN
EGREGIOUS VIOLATION OF MASSIAH AND ESCOBEDO.  /14/

        III. 

HAVING CONCLUDED THAT PETITIONER PROPERLY PERSERVED HER FEDERAL
CONSTITUTIONAL OBJECTION TO THE ADMISSION OF FISK'S TESTIMONY, AND THAT
ITS ADMISSION DID INDEED VIOLATE HER CONSTITUTIONAL RIGHTS, I TURN TO
RESPONDENT'S CONTENTION THAT THE ERROR WAS "HARMLESS BEYOND A
REASONABLE DOUBT," CHAPMAN V. CALIFORNIA, 386 U.S. 18, 24 (1967). 
CHAPMAN WAS DECIDED AFTER THE DECISION OF THE CALIFORNIA DISTRICT COURT
OF APPEAL NOW ON REVIEW HERE, AND NORMALLY A REMAND WOULD BE IN ORDER
SO THAT THE STATE COURT MIGHT RECONSIDER, IN LIGHT OF THAT CASE, ITS
CONCLUSION THAT THE ERROR WAS HARMLESS.  HOWEVER, SINCE A MAJORITY OF
THE COURT REFUSES TO DECIDE THIS CASE AT ALL, I WISH TO POINT OUT WHY I
CANNOT REGARD THE ERROR AS HARMLESS. 

I HAVE ALREADY INDICATED GENERALLY THE THEORIES OF THE PROSECUTION
AND DEFENSE AS TO DR. MILLER'S DEATH (SEE SUPRA, AT 617-618).  THE
EVIDENCE AGAINST PETITIONER WAS CIRCUMSTANTIAL.  /15/  SO SAYING, I DO
NOT IMPLY IT WAS NECESSARILY IN ANY SENSE WEAK; THAT FACT DOES,
HOWEVER, HELP TO INDICATE WHY THE ISSUE OF MOTIVE WAS PARTICULARLY
CRUCIAL, AND ONE WHICH WAS CENTRAL TO THE TRIAL.  FISK'S TESTIMONY
DEFINITELY SUPPORTED THE STATE'S CASE ON THAT ISSUE.  PETITIONER
TESTIFIED THAT SHE LOVED HAYTON UNTIL "THE MINUTE THAT CORK (DR.
MILLER) WAS GONE," BUT THAT SHE HAD GIVEN UP ANY IDEA OF MARRYING
HAYTON AS OF THE TIME OF AN INCIDENT THAT OCCURRED APPROXIMATELY THREE
MONTHS PRIOR TO HER HUSBAND'S DEATH.  AS TO THAT TESTIMONY, THE
DISTRICT ATTORNEY ARGUED TO THE JURY: 

     "BUT THAT'S NOT WHAT SHE TOLD THE GIRL (FISK) UP IN JAIL.  SHE

  TOLD THE GIRL UP IN JAIL THAT SHE STILL LOVED HAYTON, FELT THAT

HE WOULD COME TO HER." 

ON REBUTTAL ARGUMENT, THE DISTRICT ATTORNEY AGAIN EMPHASIZED FISK'S
TESTIMONY: 

     "HE (DEFENSE COUNSEL) SAYS THE PROSECUTION'S CASE IS BASED

  ENTIRELY ON SURMISE AND CONJECTURE.  THAT'S NOT TRUE. 

.          .          .          . 

     "IS IT SURMISE AND CONJECTURE THAT MRS. MILLER HAD BEEN

  INFATUATED WITH HAYTON AND WANTED TO MARRY HIM? 

     "THERE IS DISAGREEMENT AS TO WHEN THIS WANTING TO MARRY HIM

  STOPPED, BUT THERE IS NO QUESTION AT ALL THAT SHE WANTED TO MARRY

  HIM. 

        .          .          .          . 

     "IS IT SURMISE AND CONJECTURE THAT SHE TOLD THE GIRL UP IN
JAIL

  SHE STILL LOVED HAYTON AND DID NOT LOVE HER HUSBAND? 

      .          .          .          . 

     "AND, OF COURSE, RIGHT AFTER HER HUSBAND'S DEATH SHE IS

  ARRESTED AND IS IN CUSTODY, AND SHE TELLS THE GIRL UPSTAIRS THAT

SHE STILL LOVES HAYTON." 

TO BE SURE, FOR ALMOST EACH POINT UPON WHICH FISK'S TESTIMONY WAS
EMPHASIZED THERE WAS OTHER SUPPORTING EVIDENCE.  BUT THIS COURT HAS
ALWAYS VIEWED EVIDENCE OUT OF A DEFENDANT'S OWN MOUTH, OBTAINED AFTER
THE EVENTS, AS PARTICULARLY WEIGHTY WITH THE JURY.  SEE BRAM V. UNITED
STATES, 168 U.S. 532 (1897); JACKSON V. DENNO, 378 U.S. 368 (1964). 
AND, AS THE QUOTATIONS ABOVE INDICATE, THAT WAS PLAINLY THE VIEW OF THE
DISTRICT ATTORNEY IN THIS CASE.  CERTAINLY FISK'S TESTIMONY, IF
BELIEVED, MADE THE PROSECUTION'S CASE MUCH MORE CREDIBLE, AND
UNDERMINED PETITIONER'S DEFENSE. 

MOREOVER, THE JURY DELIBERATED THREE DAYS BEFORE REACHING A
VERDICT.  IT MAY HAVE SPENT THAT TIME ASSESSING THE EXPERT TESTIMONY IN
REGARD TO THE CAUSES OF FIRES IN AUTOMOBILES, WEIGHING THE
PROSECUTION'S EXPERTS'  TESTIMONY THAT THIS FIRE WAS OF INCENDIARY
ORIGIN AGAINST THE TESTIMONY OF AN EXPERT FOR THE DEFENSE, WHO SAID THE
FIRE MIGHT WELL HAVE BEEN ACCIDENTAL.  IT MAY HAVE FOUND ALL THAT TIME
NECESSARY TO RESOLVE THE QUESTION OF GUILT OR INNOCENCE.  OR, SINCE IT
WAS CHARGED ON BOTH FIRST- AND SECOND-DEGREE MURDER, IT MIGHT HAVE
SPENT THAT TIME WEIGHING NOT GUILT AND INNOCENCE BUT DEGREE OF GUILT,
EVEN THOUGH ONLY THE FORMER WOULD HAVE BEEN CONSISTENT WITH THE
PROSECUTION'S THEORY.  FISK'S TESTIMONY MAY HAVE BEEN PARTICULARLY
IMPORTANT WITH RESPECT TO THE JURY'S RESOLUTION OF THAT MATTER.  WHILE
OF COURSE ONE CANNOT KNOW DEFINITELY WHAT OCCUPIED THE JURY'S TIME
DURING THE THREE DAYS IT DELIBERATED, I AM CONVINCED IT CANNOT BE SAID
"BEYOND A REASONABLE DOUBT,"  CHAPMAN V. CALIFORNIA, SUPRA, THAT THERE
IS NO "REASONABLE POSSIBILITY THAT THE EVIDENCE COMPLAINED OF MIGHT
HAVE CONTRIBUTED TO THE CONVICTION."  FAHY V. CONNECTICUT, 375 U.S. 85,
86-87 (1963).  I WOULD THEREFORE REVERSE PETITIONER'S CONVICTION. 

/1/  THE JUDGE ON THE SAME DAY ISSUED AN ORDER PROHIBITING OFFICIALS
FROM QUESTIONING PETITIONER UNLESS HER ATTORNEY WAS PRESENT, AND
ORDERED HER ATTORNEYS TO CEASE SITTING OUTSIDE HER CELL.  APPARENTLY,
THE POLICE DID NOT INFORM THE JUDGE OF FISK'S CONTINUED PRESENCE. 

/2/  COUNSEL CITED BY NAME AND DISCUSSED, AS DID THE DISTRICT
ATTORNEY, MASSIAH V. UNITED STATES, 377 U.S. 201 (1964), AND PEOPLE V.
DORADO, 62 CAL.2D 338, 398 P.2D 361 (1965).  THE LATTER DECISION,
GROUNDED ON THE FEDERAL CONSTITUTION, ENCOMPASSES A CLAIM BASED ON
ESCOBEDO V. ILLINOIS, 378 U.S. 478 (1964). 

/3/  THE DISTRICT ATTORNEY REPRESENTED THAT FISK, ALTHOUGH BEING
WITH PETITIONER "FOR ABOUT A WEEK," DID NOT INTERROGATE PETITIONER OR
IN ANY WAY SEEK TO ELICIT INFORMATION FROM HER.  ALTHOUGH THAT
REPRESENTATION WAS UNDOUBTEDLY MADE IN GOOD FAITH AT THE TIME, IT IS
CONCEDED TO BE INCORRECT.  SEE INFRA, AT 626. 

/4/  ONE FACTOR RECITED BY THE COURT AS LEADING IT TO CONCLUDE THAT
PETITIONER'S COUNSEL DESIRED PEGGY FISK'S TESTIMONY WAS THAT HE
"RECEIVED A COPY OF PEGGY'S REPORTS TO HER SUPERIORS CONCERNING HER
TALKS WITH DEFENDANT," AND, APPARENTLY, WAS IN A POSITION TO BALANCE
ITS ADVANTAGES AND DISADVANTAGES.  245 CAL.APP.2D,AT 143, 53
CAL.RPTR.,AT 740.  THE RECORD DOES NOT REVEAL THAT SHERIFF'S REPORT,
BUT IT DOES SHOW THAT COUNSEL HAD SEEN IT PRIOR TO OBJECTING
STRENUOUSLY AT THE IN-CHAMBERS CONFERENCE TO FISK'S TESTIFYING. 

/5/  IN THE DOHERTY CASE, THE CALIFORNIA SUPREME COURT SAID, IN A
SITUATION WHERE COUNSEL MIGHT DEVELOP FACTS UPON WHICH AN OBJECTION
COULD BE BASED BUT DID NOT OBJECT (IN RELATION TO THAT COURT'S DORADO
DECISION), NOT THAT IT WOULD ASSUME WAIVER OF THE POINT, BUT RATHER
THAT "(IF THE PEOPLE SHOULD SUSTAIN THE BURDEN OF ESTABLISHING THE FACT
OF SUCH TACTICS, WE WOULD TREAT DEFENDANT'S STRATAGEM AS A WAIVER OF
THE OBJECTION."  67 CAL.2D,AT 14, N. 4, 429 P.2D,AT 180, N. 4. 

/6/  CF. FAY V. NOIA, 372 U.S. 391, 438-440 (1963).  COMPARE HENRY
V. MISSISSIPPI, 379 U.S. 443 (1965). 

/7/  AT THE SAME TERM, MASSIAH WAS APPLIED TO VACATE A STATE
JUDGMENT AFFIRMING A CONVICTION.  MCLEOD V. OHIO, 378 U.S. 582 (1964). 
SEE ALSO MCLEOD V. OHIO, 381 U.S. 356 (1965). 

/8/  CF. HOFFA V. UNITED STATES, 385 U.S. 293, 309-310 (1966). 

/9/  SEE N. 12, INFRA. 

/10/  CF. PEOPLE V. ROBINSON, 16 APP.DIV.2D 184, 224 N.Y.S.2D 705
(4TH DEPT. 1962) (JAIL CELL PLANT).  SEE ALSO NOTE, 79 HARV.L.REV. 
935, 1006 (1966). 

/11/  BRIEF FOR THE UNITED STATES, MASSIAH V. UNITED STATES, NO.
199, OCTOBER TERM, 1963, AT 30. 

/12/  RESPONDENT ALSO ARGUES THAT PETITIONER DID NOT SHOW THAT ANY
OF HER STATEMENTS AS RELATED BY FISK OCCURRED PRIOR TO THE FILING OF A
FORMAL CHARGE ON OCTOBER 13, OR WERE SPECIFICALLY PROMPTED BY THE FOUR
INCIDENTS OF DELIBERATE INDUCEMENTS TO SPEAK RELATED IN THE TEXT
ABOVE.  OF COURSE PETITIONER HAS NO SUCH BURDEN IN THE CIRCUMSTANCES OF
THIS CASE.  BESIDES, PETITIONER'S COUNSEL ASKED FISK, FOR EXAMPLE,
"WHICH DAY WAS IT THAT SHE (PETITIONER) MENTIONED INSURANCE MONEY TO
YOU, 9TH, 10TH, 11TH, 12TH, 13TH OR 14TH?"  FISK WAS UNABLE TO ANSWER. 
MOREOVER, ASSUMING ALL THE STATEMENTS WERE MADE ON THE FIRST DAY OF
FISK'S DECEPTIVE PRESENCE IN THE CELL, I WOULD REACH THE SAME RESULT. 

/13/  IN ADDITION TO THE OTHER CITED CASES (SEE SUPRA, AT 625) IN
WHICH THE ADMISSION OF TESTIMONY BY JAIL CELL UNDERCOVER AGENTS WAS
HELD TO BE UNCONSTITUTIONAL, SEE PEOPLE V. ARGUELLO, 63 CAL.2D 566, 407
P.2D 661 (1965). 

/14/  PETITIONER'S TRIAL, WHICH BEGAN ON JANUARY 11, 1965, WAS PRIOR
TO THE EFFECTIVE DATE OF MIRANDA V. ARIZONA, 384 U.S. 436 (1966), AND
THEREFORE THAT DECISION IS NOT APPLICABLE.  SEE JOHNSON V. NEW JERSEY,
384 U.S. 719, 734 (1966). 

/15/  SEE FONTAINE V. CALIFORNIA, 390 U.S. 593; CF. ANDERSON V.
NELSON, 390 U.S. 523. 

F. LEE BAILEY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS ALAN M. DERSHOWITZ. 

PHILIP C. GRIFFIN, DEPUTY ATTORNEY GENERAL OF CALIFORNIA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE THOMAS C. LYNCH,
ATTORNEY GENERAL, AND WILLIAM E. JAMES, ASSISTANT ATTORNEY GENERAL. 
..END :





DESTEFANO V. WOODS., 392 U.S. 631 


       DESTEFANO V. WOODS, SHERIFF. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

        NO. 559.  DECIDED JUNE 17, 1968.  /0/ 


IN POST-CONVICTION PROCEEDINGS PETITIONERS UNSUCCESSFULLY CHALLENGED
THE CONSTITUTIONAL VALIDITY OF THEIR CONVICTIONS IN THE STATE COURTS--
PETITIONER IN NO. 941 CONTENDING THAT IT WAS UNCONSTITUTIONAL FOR THE
TRIAL COURT TO HAVE INSTRUCTED THE JURY (UNDER A STATE CONSTITUTIONAL
PROVISION APPLICABLE TO NONCAPITAL CASES) THAT IT COULD RETURN A GUILTY
VERDICT BY LESS THAN A UNANIMOUS VOTE; AND PETITIONER IN NO. 559
CONTENDING THAT HE WAS UNCONSTITUTIONALLY DENIED A TRIAL BY JURY WHEN
HE WAS TRIED BY A STATE COURT FOR CRIMINAL CONTEMPT, ADJUDGED GUILTY,
AND SENTENCED TO THREE CONCURRENT ONE-YEAR TERMS.  HELD:  THIS COURT'S
DECISIONS OF MAY 20, 1968, IN DUNCAN V. LOUISIANA, 391 U.S. 145,
HOLDING THAT THE STATES CANNOT DENY A REQUEST FOR JURY TRIAL IN SERIOUS
CRIMINAL CASES, AND BLOOM V. ILLINOIS, 391 U.S. 194, HOLDING THAT THE
RIGHT TO JURY TRIAL EXTENDS TO TRIALS FOR SERIOUS CRIMINAL CONTEMPTS,
DO NOT APPLY RETROACTIVELY; AND SINCE PETITIONERS' TRIALS WERE
INSTITUTED BEFORE THAT DATE THE COURT DOES NOT REACH THE ISSUES
PRESENTED BY PETITIONERS. 

CERTIORARI GRANTED; NO. 559, 382 F.2D 557, AND NO. 941, AFFIRMED. 

PER CURIAM. 

PETITIONER CARCERANO WAS CONVICTED OF ARMED ROBBERY AND SENTENCED,
ON MAY 11, 1962, TO LIFE IMPRISONMENT.  THE OREGON CONSTITUTION, ART.
I, SEC. 11, PERMITS A JURY TO CONVICT IN NONCAPITAL CASES IF 10 OF THE
12 JURORS SUPPORT CONVICTION.  THE OREGON SUPREME COURT AFFIRMED
PETITIONER'S CONVICTION.  238 ORE.  208, 390 P.2D 923, CERT. DENIED,
380 U.S. 923.  IN 1967, PETITIONER SOUGHT COLLATERAL RELIEF UNDER
OREGON'S POST-CONVICTION STATUTE.  THE SOLE GROUND RELIED UPON WAS THAT
THE STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED WHEN THE JURY WAS
TOLD IT COULD RETURN A VERDICT OF GUILTY EVEN THOUGH THE MEMBERS DID
NOT UNANIMOUSLY FAVOR THAT VERDICT.  THIS ISSUE HAD NOT BEEN RAISED BY
PETITIONER ON HIS DIRECT APPEAL.  THE OREGON SUPREME COURT DENIED
RELIEF. 

PETITIONER DESTEFANO WAS FOUND IN CRIMINAL CONTEMPT OF AN ILLINOIS
COURT AND SENTENCED TO THREE CONCURRENT ONE-YEAR TERMS.  /1/  AFTER
AFFIRMANCE BY THE ILLINOIS SUPREME COURT AND DENIAL OF CERTIORARI BY
THIS COURT, 385 U.S. 989, PETITIONER UNSUCCESSFULLY SOUGHT STATE
COLLATERAL RELIEF AND THEN FILED A PETITION FOR HABEAS CORPUS IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS.  PETITIONER'S
CONTENTION WAS THAT HE WAS UNCONSTITUTIONALLY DENIED TRIAL BY JURY. 
BOTH THE DISTRICT COURT AND THE COURT OF APPEALS HELD THAT THE
CONSTITUTION DID NOT REQUIRE JURY TRIAL FOR STATE CRIMINAL CONTEMPT
PROCEEDINGS. 

IN DUNCAN V. LOUISIANA, 391 U.S. 145, WE HELD THAT THE STATES CANNOT
DENY A REQUEST FOR JURY TRIAL IN SERIOUS CRIMINAL CONTEMPTS.  DUNCAN
LEFT OPEN THE QUESTION OF THE CONTINUED VITALITY OF THE STATEMENT IN
MAXWELL V. DOW, 176 U.S. 581, 586, THAT THE SIXTH AMENDMENT RIGHT TO
JURY TRIAL INCLUDES A RIGHT NOT TO BE CONVICTED EXCEPT BY A UNANIMOUS
VERDICT.  BOTH DUNCAN AND BLOOM LEFT OPEN THE QUESTION WHETHER A
CONTEMPT PUNISHED BY IMPRISONMENT FOR ONE YEAR IS, BY VIRTUE OF THAT
SENTENCE, A SUFFICIENTLY SERIOUS MATTER TO REQUIRE THAT A REQUEST FOR
JURY TRIAL BE HONORED.  THESE TWO ISSUES POSED IN NOS. 941 AND 559 MUST
BE CONSIDERED AT THIS TIME ONLY IF THE DECISIONS IN DUNCAN AND BLOOM
APPLY RETROACTIVELY.  WE HOLD, HOWEVER, THAT DUNCAN V. LOUISIANA AND
BLOOM V. ILLINOIS SHOULD RECEIVE ONLY PROSPECTIVE APPLICATION. 
ACCORDINGLY, THE DENIALS OF COLLATERAL RELIEF TO PETITIONERS MUST BE
AFFIRMED REGARDLESS OF WHETHER, FOR CASES TO WHICH THE RULES ANNOUNCED
IN DUNCAN AND BLOOM APPLY, THE FOURTEENTH AMENDMENT REQUIRES UNANIMOUS
JURY VERDICTS AND AFFORDS A RIGHT TO JURY TRIAL FOR CRIMINAL CONTEMPTS
PUNISHED BY IMPRISONMENT FOR ONE YEAR. 

IN STOVALL V. DENNO, 388 U.S. 293, 297, THE COURT STATED THE
CONSIDERATIONS THAT AFFECT THE JUDGMENT WHETHER A CASE REVERSING PRIOR
DOCTRINES IN THE AREA OF THE CRIMINAL LAW SHOULD BE APPLIED ONLY
PROSPECTIVELY: 

     "(A) THE PURPOSE TO BE SERVED BY THE NEW STANDARDS, (B) THE

  EXTENT OF THE RELIANCE BY LAW ENFORCEMENT AUTHORITIES ON THE OLD

  STANDARDS, AND (C) THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF

  A RETROACTIVE APPLICATION OF THE NEW STANDARDS." 

ALL THREE FACTORS FAVOR ONLY PROSPECTIVE APPLICATION OF THE RULE STATED
IN DUNCAN V. LOUISIANA.  DUNCAN HELD THAT THE STATES MUST RESPECT THE
RIGHT TO JURY TRIAL BECAUSE IN THE CONTEXT OF THE INSTITUTIONS AND
PRACTICES BY WHICH WE ADOPT AND APPLY OUR CRIMINAL LAWS, THE RIGHT TO
JURY TRIAL GENERALLY TENDS TO PREVENT ARBITRARINESS AND REPRESSION.  AS
WE STATED IN DUNCAN, "WE WOULD NOT ASSERT, HOWEVER, THAT EVERY CRIMINAL
TRIAL-- OR ANY PARTICULAR TRIAL-- HELD BEFORE A JUDGE ALONE IS UNFAIR
OR THAT A DEFENDANT MAY NEVER BE AS FAIRLY TREATED BY A JUDGE AS HE
WOULD BE BY A JURY."  391 U.S.,AT 158.  THE VALUES IMPLEMENTED BY THE
RIGHT TO JURY TRIAL WOULD NOT MEASURABLY BE SERVED BY REQUIRING RETRIAL
OF ALL PERSONS CONVICTED IN THE PAST BY PROCEDURES NOT CONSISTENT WITH
THE SIXTH AMENDMENT RIGHT TO JURY TRIAL.  SECOND, STATES UNDOUBTEDLY
RELIED IN GOOD FAITH UPON THE PAST OPINIONS OF THIS COURT TO THE EFFECT
THAT THE SIXTH AMENDMENT RIGHT TO JURY TRIAL WAS NOT APPLICABLE TO THE
STATES.  E.G., MAXWELL V. DOW, SUPRA.  SEVERAL STATES DENIED REQUESTS
FOR JURY TRIAL IN CASES WHERE JURY TRIAL WOULD HAVE BEEN MANDATORY HAD
THEY FALLEN WITHIN THE SIXTH AMENDMENT GUARANTEE AS IT HAD BEEN
CONSTRUED BY THIS COURT.  SEE DUNCAN V. LOUISIANA, SUPRA, AT 158, N.
30.  THIRD, THE EFFECT OF A HOLDING OF GENERAL RETROACTIVITY ON LAW
ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE WOULD BE SIGNIFICANT,
BECAUSE THE DENIAL OF JURY TRIAL HAS OCCURRED IN A VERY GREAT NUMBER OF
CASES IN THOSE STATES NOT UNTIL NOW ACCEPTING THE SIXTH AMENDMENT
GUARANTEE.  FOR EXAMPLE, IN LOUISIANA ALL THOSE CONVICTED OF NON
CAPITAL SERIOUS CRIMES COULD MAKE A SIXTH AMENDMENT ARGUMENT.  AND,
DEPENDING ON THE COURT'S DECISIONS ABOUT UNANIMOUS AND 12-MAN JURIES,
ALL CONVICTIONS FOR SERIOUS CRIMES IN CERTAIN OTHER STATES WOULD BE IN
JEOPARDY. 

THE CONSIDERATIONS ARE SOMEWHAT MORE EVENLY BALANCED WITH REGARD TO
THE RULE ANNOUNCED IN BLOOM V. ILLINOIS.  ONE GROUND FOR THE BLOOM
RESULT WAS THE BELIEF THAT CONTEMPT TRIALS, WHICH OFTEN OCCUR BEFORE
THE VERY JUDGE WHO WAS THE OBJECT OF THE ALLEGEDLY CONTEMPTUOUS
BEHAVIOR, WOULD BE MORE FAIRLY TRIED IF A JURY DETERMINED GUILT. 
UNLIKE THE JUDGE, THE JURYMEN WIL NOT HAVE WITNESSED OR SUFFERED THE
ALLEGED CONTEMPT, NOR SUGGESTED PROSECUTION FOR IT.  HOWEVER, THE
TRADITION OF NONJURY TRIALS FOR CONTEMPTS WAS MORE FIRMLY ESTABLISHED
THAN THE VIEW THAT STATES COULD DISPENSE WITH JURY TRIAL IN NORMAL
CRIMINAL PROSECUTIONS, AND RELIANCE ON THE CASES OVERTURNED BY BLOOM V.
ILLINOIS WAS THEREFORE MORE JUSTIFIED.  ALSO, THE ADVERSE EFFECTS ON
THE ADMINISTRATION OF JUSTICE OF INVALIDATING ALL SERIOUS CONTEMPT
CONVICTIONS WOULD LIKELY BE SUBSTANTIAL.  THUS, WITH REGARD TO THE
BLOOM DECISION, WE ALSO FEEL THAT RETROACTIVE APPLICATION IS NOT
WARRANTED. 

FOR THESE REASONS WE WILL NOT REVERSE STATE CONVICTIONS FOR FAILURE
TO GRANT JURY TRIAL WHERE TRIALS BEGAN PRIOR TO MAY 20, 1968, THE DATE
OF THIS COURT'S DECISIONS IN DUNCAN V. LOUISIANA AND BLOOM V.
ILLINOIS.  /2/  THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED AND
THE JUDGMENTS ARE AFFIRMED. 

              IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 941, CARCERANO V. GLADDEN, WARDEN, ON PETITION
FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OREGON. 

/1/  PETITIONER DESTEFANO WAS ORDERED RELEASED ON BAIL BY MR.
JUSTICE CLARK PENDING HIS DIRECT APPEALS IN THE ILLINOIS COURTS AND HIS
FIRST PETITION FOR A WRIT OF CERTIORARI.  HE WAS AGAIN GRANTED RELEASE
ON BAIL BY MR. JUSTICE CLARK PENDING HIS APPEAL TO THE COURT OF APPEALS
FROM THE DISTRICT COURT'S DENIAL OF HABEAS CORPUS RELIEF; THIS SECOND
BAIL ORDER HAS CONTINUED IN FORCE PENDING CONSIDERATION OF THE PRESENT
PETITION.  PRIOR TO THE FIRST BAIL ORDER, AND BETWEEN THE FIRST DENIAL
OF CERTIORARI AND THE SECOND BAIL ORDER, PETITIONER SERVED A TOTAL OF
207 DAYS OF HIS CONCURRENT ONE-YEAR SENTENCES. 

/2/  WE SEE NO BASIS FOR A DISTINCTION BETWEEN CONVICTIONS THAT HAVE
BECOME FINAL AND CASES AT VARIOUS STAGES OF TRIAL AND APPEAL.  SEE
STOVALL V. DENNO, SUPRA, AT 300-301. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART WOULD DENY CERTIORARI FOR
THE REASONS STATED IN MR. JUSTICE HARLAN'S DISSENTING OPINIONS IN
DUNCAN V. LOUISIANA, 391 U.S. 145, 171, AND BLOOM V. ILLINOIS, 391 U.S.
194, 215. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

I AM OF THE VIEW THAT THE DEPRIVATION OF THE RIGHT TO A TRIAL BY
JURY SHOULD BE GIVEN RETROACTIVE EFFECT, AS I THOUGHT SHOULD HAVE BEEN
DONE WITH COMPARABLE CONSTITUTIONAL DECISIONS.  SEE GIDEON V.
WAINWRIGHT, 372 U.S. 335; DOUGLAS V. CALIFORNIA, 372 U.S. 353;
LINKLETTER V. WALKER, 381 U.S. 618, 640 (DISSENTING OPINION); JOHNSON
V. NEW JERSEY, 384 U.S. 719, 736 (DISSENTING OPINION); STOVALL V.
DENNO, 388 U.S. 293, 302 (DISSENTING OPINION). 

ANNA R. LAVIN FOR PETITIONER IN NO. 559. 

JOHN J. STAMOS AND ELMER C. KISSANE FOR RESPONDENT IN NO. 559. 

ROBERT Y. THORNTON, ATTORNEY GENERAL OF OREGON, AND DAVID H. BLUNT,
ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT IN NO. 941. 
..END :







LEE ART THEATRE V. VIRGINIA., 392 U.S. 636 


       LEE ART THEATRE, INC. V. VIRGINIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

       APPEALS OF VIRGINIA. 

        NO. 997.  DECIDED JUNE 17, 1968. 


ADMISSION IN EVIDENCE OF ALLEGEDLY OBSCENE MOTION PICTURE FILMS
SEIZED UNDER THE AUTHORITY OF A WARRANT ISSUED BY A JUSTICE OF THE
PEACE ON A POLICE OFFICER'S AFFIDAVIT GIVING THE FILMS' TITLES, AND
STATING THAT HE HAD DETERMINED FROM PERSONAL OBSERVATION OF THE FILMS
AND OF THE THEATRE'S BILLBOARD THAT THEY WERE OBSCENE, WAS ERRONEOUS,
AS THE ISSUANCE OF THE WARRANT WITHOUT THE JUSTICE OF THE PEACE'S
INQUIRY INTO THE FACTUAL BASIS FOR THE OFFICER'S CONCLUSIONS FELL SHORT
OF CONSTITUTIONAL REQUIREMENTS DEMANDING NECESSARY SENSITIVITY TO
FREEDOM OF EXPRESSION. 

CERTIORARI GRANTED; JUDGMENT REVERSED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  PETITIONER,
OPERATOR OF A MOTION PICTURE THEATRE IN RICHMOND, VIRGINIA, WAS
CONVICTED IN THE HUSTINGS COURT OF RICHMOND OF POSSESSING AND
EXHIBITING LEWD AND OBSCENE MOTION PICTURES IN VIOLATION OF TITLE 18.1
228 OF THE CODE OF VIRGINIA.  THE SUPREME COURT OF APPEALS OF VIRGINIA
REFUSED A WRIT OF ERROR. 

THE FILMS IN QUESTION WERE ADMITTED IN EVIDENCE OVER OBJECTION THAT
THEY HAD BEEN UNCONSTITUTIONALLY SEIZED.  THE SEIZURE WAS UNDER THE
AUTHORITY OF A WARRANT ISSUED BY A JUSTICE OF THE PEACE ON THE BASIS OF
AN AFFIDAVIT OF A POLICE OFFICER WHICH STATED ONLY THE TITLES OF THE
MOTION PICTURES AND THAT THE OFFICER HAD DETERMINED FROM PERSONAL
OBSERVATION OF THEM AND OF THE BILLBOARD IN FRONT OF THE THEATRE THAT
THE FILMS WERE OBSCENE. 

THE ADMISSION OF THE FILMS IN EVIDENCE REQUIRES REVERSAL OF
PETITIONER'S CONVICTION.  A SEIZURE OF ALLEGEDLY OBSCENE BOOKS ON THE
AUTHORITY OF A WARRANT "ISSUED ON THE STRENTTH OF THE CONCLUSORY
ASSERTIONS OF A SINGLE POLICE OFFICER, WITHOUT ANY SCRUTINY BY THE
JUDGE OF ANY MATERIALS CONSIDERED . . . OBSCENE," WAS HELD TO BE AN
UNCONSTITUTIONAL SEIZURE IN MARCUS V. SEARCH WARRANT, 367 U.S. 717, 731
732.  IT IS TRUE THAT A JUDGE MAY READ A COPY OF A BOOK IN COURTROOM OR
CHAMBERS BUT NOT AS EASILY ARRANGE TO SEE A MOTION PICTURE THERE. 
HOWEVER, WE NEED NOT DECIDE IN THIS CASE WHETHER THE JUSTICE OF THE
PEACE SHOULD HAVE VIEWED THE MOTION PICTURE BEFORE ISSUING THE
WARRANT.  THE PROCEDURE UNDER WHICH THE WARRANT ISSUED SOLELY UPON THE
CONCLUSORY ASSERTIONS OF THE POLICE OFFICER WITHOUT ANY INQUIRY BY THE
JUSTICE OF THE PEACE INTO THE FACTUAL BASIS FOR THE OFFICER'S
CONCLUSIONS WAS NOT A PROCEDURE "DESIGNED TO FOCUS SEARCHINGLY ON THE
QUESTION OF OBSCENITY," ID., AT 732, AND THEREFORE FELL SHORT OF
CONSTITUTIONAL REQUIREMENTS DEMANDING NECESSARY SENSITIVITY TO FREEDOM
OF EXPRESSION.  SEE FREEDMAN V. MARYLAND, 380 U.S. 51, 58-59. 

THE JUDGMENT OF THE SUPREME COURT OF APPEALS OF VIRGINIA IS REVERSED
AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

 IT IS SO ORDERED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE STEWART BASE
THEIR CONCURRENCE IN THE JUDGMENT OF REVERSAL UPON REDRUP V. NEW YORK,
386 U.S. 767. 

MR. JUSTICE HARLAN, DISSENTING. 

A POLICE OFFICER FILED A SWORN AFFIDAVIT THAT HE HAD PERSONALLY
WITNESSED THE COMMISSION OF A CRIME, TO WIT, THE POSSESSION AND
EXHIBITION OF OBSCENE MOTION PICTURES.  HE WAS GRANTED A WARRANT TO
SEIZE THE PICTURES, AND DID SO. 

IN MARCUS V. SEARCH WARRANT, 367 U.S. 717, OFFICERS WERE GIVEN A
GENERAL WARRANT TO SEIZE OBSCENE MATERIALS, PURSUANT TO WHICH THEY
SELECTED AND SEIZED 11,000 COPIES OF 280 PUBLICATIONS MOST OF WHICH
WERE LATER FOUND NON-OBSCENE.  WITH BARELY A NOD TO THE DIFFERENCE
BETWEEN 11,000 BOOKS AND MAGAZINES SELECTED FOR SEIZURE BY THE OFFICERS
THEMSELVES AFTER A WARRANT HAD BEEN ISSUED AND TWO OBSCENE MOVIES NAMED
IN THE AFFIDAVIT, THE COURT REVERSES THE PRESENT CONVICTION ON THE
AUTHORITY OF MARCUS. 

I THINK THAT MARCUS WAS CORRECTLY DECIDED, BUT I CANNOT DISCERN ITS
APPLICATION HERE.  POLICE OFFICERS MAY NOT BE GIVEN CARTE BLANCHE TO
SEIZE, BUT THEY MAY CERTAINLY SEIZE A SPECIFICALLY NAMED ITEM ON
PROBABLE CAUSE, BEFORE THE WORK "TAKEN AS A WHOLE" HAS BEEN ADJUDICATED
OBSCENE.  ANY OTHER RULE WOULD MAKE ADJUDICATION NOT MERELY "NOT AS
EASILY ARRANGED)" IN THE CASE OF MOVIES BUT QUITE IMPOSSIBLE.  IF THE
COURT MEANS ONLY THAT THE OFFICER SHOULD NOT MERELY SAY THAT HE HAS
SEEN A MOVIE AND CONSIDERS IT OBSCENE, BUT SHOULD OFFER SOMETHING IN
THE WAY OF A BOX SCORE OF WHAT TRANSPIRES THEREIN, I CONSIDER IT ABSURD
TO THINK THAT A MAGISTRATE, ARMED WITH THE LUMINOUS GUIDANCE THIS COURT
HAS AFFORDED, WILL BE THUS ABLE TO MAKE A BETTER JUDGMENT OF PROBABLE
OBSCENITY. 

SINCE THE PETITIONER DOES NOT CONTEND THAT THE MOVIES IN QUESTION
HERE WERE NOT OBSCENE, I FIND IT UNNECESSARY TO REACH THE POINT RELIED
ON BY MY BROTHERS BLACK, DOUGLAS, AND STEWART. 

PLATO CACHERIS FOR PETITIONER. 

JAMES B. WILKINSON FOR RESPONDENT. 
..END :














HOUGHTON V. SHAFER., 392 U.S. 639 


       HOUGHTON V. SHAFER, GOVERNOR OF PENNSYLVANIA, ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE THIRD CIRCUIT. 

        NO. 668, MISC.  DECIDED JUNE 17, 1968. 


PETITIONER, A PENNSYLVANIA STATE PRISONER, BROUGHT THIS ACTION IN THE
DISTRICT COURT CLAIMING THAT PRISON AUTHORITIES HAD VIOLATED SEC. 1 OF
THE CIVIL RIGHTS ACT OF 1871 BY CONFISCATING LEGAL MATERIALS WHICH
PETITIONER HAD ACQUIRED FOR PURSUING HIS APPEAL BUT WHICH, IN ALLEGED
VIOLATION OF PRISON RULES, WERE IN ANOTHER PRISONER'S POSSESSION.  THE
DISTRICT COURT DISMISSED PETITIONER'S COMPLAINT ON THE GROUND THAT
PETITIONER HAD NOT EXHAUSTED CERTAIN STATE ADMINISTRATIVE REMEDIES. 
HELD:  IT WAS NOT NECESSARY FOR PETITIONER TO RESORT TO THESE STATE
REMEDIES IN LIGHT OF THIS COURT'S DECISIONS IN MONROE V. PAPE, 365 U.S.
167, 180-183, AND OTHER CASES. 

CERTIORARI GRANTED; 379 F.2D 556, REVERSED AND REMANDED. 

PER CURIAM. 

PETITIONER WAS CONVICTED OF BURGLARY AND IS SERVING A SENTENCE OF
FOUR TO 10 YEARS IN A PENNSYLVANIA STATE PRISON.  IN PURSUING HIS
APPEAL PRO SE PETITIONER ACQUIRED LAW BOOKS, TRIAL RECORDS, AND OTHER
MATERIALS WITH THE CONSENT OF PRISON AUTHORITIES.  BEFORE PETITIONER
HAD FILED HIS APPEAL BRIEF, PRISON AUTHORITIES CONFISCATED THESE
MATERIALS BECAUSE THEY WERE FOUND IN THE POSSESSION OF ANOTHER INMATE. 
PETITIONER'S EFFORTS TO OBTAIN THE RETURN OF THE MATERIALS WERE NOT
SUCCESSFUL, AND HE COMMENCED THIS ACTION IN THE UNITED STATES DISTRICT
COURT, CLAIMING THAT THE PRISON AUTHORITIES HAD VIOLATED SEC. 1 OF THE
CIVIL RIGHTS ACT OF 1871, 17 STAT. 13, NOW 42 U.S.C. 1983, BY DEPRIVING
HIM OF HIS LEGAL MATERIALS.  THE DISTRICT COURT DISMISSED THE COMPLAINT
ON THE SOLE GROUND THAT PETITIONER HAD NOT ALLEGED EXHAUSTION OF STATE
ADMINISTRATIVE REMEDIES, CITING GAITO V. PRASSE, 312 F.2D 169 (C.A. 3D
CIR.).  THE COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED WITHOUT
OPINION.  WE GRANT THE PETITION FOR CERTIORARI AND REVERSE THE JUDGMENT
OF THE COURT OF APPEALS. 

PETITIONER'S LEGAL MATERIALS WERE CONFISCATED PURSUANT TO PRISON
RULES FORBIDDING THE POSSESSION OF ARTICLES NOT SOLD THROUGH THE
CANTEEN OR APPROVED BY THE AUTHORITIES AND FORBIDDING THE UNAUTHORIZED
LOANING OF BOOKS TO ANOTHER INMATE.  ACCORDING TO THE INMATES'
HANDBOOK, PETITIONER COULD HAVE TAKEN HIS PROBLEM TO THE
"CLASSIFICATION AND TREATMENT CLINIC"; IT WAS ALSO HIS PRIVILEGE "TO
ADDRESS A COMMUNICATION AT ANY TIME TO THE SUPERINTENDENT, THE DEPUTY
COMMISSIONER OF CORRECTION, OR THE COMMISSIONER OF CORRECTION, AND AS A
FINAL APPEAL, TO THE ATTORNEY GENERAL."  PETITIONER DID SEEK RELIEF
FROM THE DEPUTY SUPERINTENDENT OF HIS PRISON, BUT WITHOUT RESULT.  HE
WAS TOLD, HE SAYS, TO "LEAVE WELL ENOUGH ALONE."  HIS MOTHER'S
TELEPHONE CALLS AND CORRESPONDENCE WITH PRISON AUTHORITIES WERE
LIKEWISE UNAVAILING.  HE HAS NOT, HOWEVER, TAKEN AN APPEAL TO THE
DEPUTY COMMISSIONER OF CORRECTION, THE COMMISSIONER, OR TO THE ATTORNEY
GENERAL. 

AS WE UNDERSTAND THE SUBMISSION OF THE ATTORNEY GENERAL OF
PENNSYLVANIA IN THIS COURT, THE RULES OF THE PRISON WERE VALIDLY AND
CORRECTLY APPLIED TO PETITIONER; THESE RULES ARE FURTHER SAID TO BE
STRICTLY ENFORCED THROUGHOUT THE ENTIRE CORRECTIONAL SYSTEM IN
PENNSYLVANIA.  IN LIGHT OF THIS IT SEEMS LIKELY THAT TO REQUIRE
PETITIONER TO APPEAL TO THE DEPUTY COMMISSIONER OF CORRECTION, THE
COMMISSIONER, OR TO THE ATTORNEY GENERAL WOULD BE TO DEMAND A FUTILE
ACT.  IN ANY EVENT, RESORT TO THESE REMEDIES IS UNNECESSARY IN LIGHT OF
OUR DECISIONS IN MONROE V. PAPE, 365 U.S. 167, 180-183; MCNEESE V.
BOARD OF EDUCATION, 373 U.S. 668, 671; AND DAMICO V. CALIFORNIA, 389
U.S.416.  ON THE BASIS OF THESE DECISIONS, BUT WITHOUT INTIMATING ANY
OPINION ON THE MERITS OF THE UNDERLYING CONTROVERSY CONCERNING THE
PRISON RULES, THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR CERTIORARI ARE GRANTED, THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

  REVERSED AND REMANDED. 

WILLIAM C. SENNETT, ATTORNEY GENERAL OF PENNSYLVANIA, FRANK P.
LAWLEY, JR., DEPUTY ATTORNEY GENERAL, AND EDWARD FRIEDMAN FOR
RESPONDENTS. 
..END :















CHAN KWAN CHUNG V. IMMIGRATION AND NATURALIZATION SERVICE, 392 U.S.
642 


       CHAN KWAN CHUNG V. IMMIGRATION AND NATURALIZATION SERVICE. 

        ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

           FOR THE THIRD CIRCUIT. 

      NO. 637.  DECIDED JUNE 17, 1968. 


381 F.2D 542, AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

ABRAHAM LEBENKOFF FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON,
BEATRICE ROSENBERG, AND JULIA P. COOPER FOR RESPONDENT. 
..END :








CITY OF WILLIAMSPORT V. UNITED STATES, 392 U.S. 642 


       CITY OF WILLIAMSPORT ET AL. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF PENNSYLVANIA. 

 NO. 1401.  DECIDED JUNE 17, 1968. 


282 F.SUPP.  46, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

GORDON P. MACDOUGALL AND HARVEY GELB FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL
ZIMMERMAN, HOWARD E. SHAPIRO, ROBERT W. GINNANE, AND JEROME NELSON FOR
THE UNITED STATES ET AL., AND CARL HELMETAG, JR., FOR PENN CENTRAL CO.,
APPELLEES. 
..END :







GOLDMAN V. NEW YORK, 392 U.S. 643 


       GOLDMAN V. NEW YORK. 

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 1261.  DECIDED JUNE 17, 1968. 


21 N.Y.2D 152, 234 N.E.2D 194, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
THE JUDGMENT SHOULD BE REVERSED. 

ROBERT E. GOLDMAN AND STEPHEN R. WIENER FOR APPELLANT. 

FRANK S. HOGAN AND H. RICHARD UVILLER FOR APPELLEE. 
..END :








RHODES V. COOK, 392 U.S. 643 


       RHODES V. COOK. 

        APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

        NO. 1283.  DECIDED JUNE 17, 1968. 


72 WASH.2D 436, 433 P.2D 677, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS DISSENTS. 

E. A. NIEMEIER, FRANK A. BAUMAN, JOHN K. MALLORY, JR., AND R.
MICHAEL DUNCAN FOR APPELLANT. 

JOHN F. WILSON FOR APPELLEE. 

HARRY R. CALBOM, JR., FOR PAY'N PAK STORES, INC., ET AL., AS AMICI
CURIAE, IN SUPPORT OF APPELLANT. 
..END :






HARPER V. MICHIGAN, 392 U.S. 644 


       HARPER V. MICHIGAN. 

        APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

        NO. 1103, MISC.  DECIDED JUNE 17, 1968. 


379 MICH. 440, 152 N.W.2D 645, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

FRANK J. KELLEY, ATTORNEY GENERAL OF MICHIGAN, ROBERT A. DERENGOSKI,
SOLICITOR GENERAL, AND STEWART H. FREEMAN, ASSISTANT ATTORNEY GENERAL,
FOR APPELLEE. 
..END :











CARRILLO V. CRAVEN, 392 U.S. 644 


       CARRILLO V. CRAVEN, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 1201, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF PEYTON V. ROWE, 391 U.S.
54. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, DORIS H. MAIER,
ASSISTANT ATTORNEY GENERAL, AND EDSEL W. HAWS AND JOHN FOURT, DEPUTY
ATTORNEYS GENERAL, FOR RESPONDENT. 
..END :






VIALPANDO V. PATTERSON, 392 U.S. 645 


       VIALPANDO V. PATTERSON, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

 COURT OF APPEALS FOR THE TENTH CIRCUIT. 

        NO. 1208, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; 382 F.2D 588, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPPEALS FOR THE TENTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF PEYTON V. ROWE, 391 U.S.
54. 

DUKE W. DUNBAR, ATTORNEY GENERAL OF COLORADO, FRANK E. HICKEY,
DEPUTY ATTORNEY GENERAL, AND JAMES F. PAMP, ASSISTANT ATTORNEY GENERAL,
FOR RESPONDENT. 
..END :






CATON V. ALABAMA, 392 U.S. 645 


       CATON V. ALABAMA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           ALABAMA. 

        NO. 1203, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; 281 ALA. 486, 205 SO.2D 239, REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
DOUGLAS V. CALIFORNIA, 372 U.S. 353, AND GRIFFIN V. ILLINOIS, 351 U.S.
12. 

MACDONALD GALLION, ATTORNEY GENERAL OF ALABAMA, AND JOHN C. TYSON
III, ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :








COOK V. UNITED STATES, 392 U.S. 646 


       COOK V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

        NO. 1233, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
SANDERS V. UNITED STATES, 373 U.S. 1. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART
DISSENT AND WOULD DENY CERTIORARI. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON,
BEATRICE ROSENBERG, AND EDWARD FENIG FOR THE UNITED STATES. 
..END :






HEARD V. RIZZO, 392 U.S. 646 


       HEARD ET AL. V. RIZZO ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

  DISTRICT OF PENNSYLVANIA. 

        NO. 1530, MISC.  DECIDED JUNE 17, 1968.  /1/ 


281 F.SUPP.  720, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENTS ARE AFFIRMED. 

/1/  TOGETHER WITH NO. 1662, MISC., TRAYLOR ET AL. V. RIZZO ET AL.
V. RIZZO ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

LOIS G. FORER FOR APPELLANTS IN NO. 1530, MISC.  WILLIAM KUNSTLER
FOR APPELLANTS IN NO. 1662, MISC.
..END :







SINGER V. MYERS, 392 U.S. 647 


       SINGER V. MYERS, CORRECTIONAL SUPERINTENDENT. 

      ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE THIRD CIRCUIT. 

      NO. 1485, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; 384 F.2D 279, REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
JACKSON V. DENNO, 378 U.S. 368, AND ROBERTS V. LAVALLEE, 389 U.S. 40. 

PETER HEARN FOR PETITIONER. 
..END :










LOPINSON V. PENNSYLVANIA, 392 U.S. 647 


       LOPINSON V. PENNSYLVANIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

PENNSYLVANIA. 

        NO. 1133.  DECIDED JUNE 17, 1968.  /1/ 


CERTIORARI GRANTED; NO. 1133, 427 PA. 284, 234 A.2D 552; NO. 1095,
MISC., 427 PA. 72, 233 A.2D 542; AND NO. 1700, MISC., VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS IN NO. 1095,
MISC., AND NO. 1700, MISC., ARE GRANTED AND THE PETITIONS FOR WRITS OF
CERTIORARI IN ALL THREE CASES ARE GRANTED.  WITHOUT REACHING THE
PETITIONERS' OTHER CLAIMS, THE JUDGMENTS ARE VACATED AND THE CASES
REMANDED FOR RECONSIDERATION IN THE LIGHT OF WITHERSPOON V. ILLINOIS,
391 U.S. 510. 

/1/  TOGETHER WITH NO. 1095, MISC., COYLE V. PENNSYLVANIA; AND NO.
1700, MISC., PRUETT V. OHIO, BOTH ON PETITIONS FOR WRITS OF
CERTIORARI.  NO. 1095, MISC., IS TO THE SUPREME COURT OF PENNSYLVANIA,
AND NO. 1700, MISC., TO THE SUPREME COURT OF OHIO. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN MR. JUSTICE
BLACK'S DISSENTING OPINION IN WITHERSPOON V. ILLINOIS, 391 U.S. 510,
532. 

MR. JUSTICE WHITE DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN WITHERSPOON V. ILLINOIS, 391 U.S. 510, 540. 

MR. JUSTICE BLACK, DISSENTING. 

IN ALL THREE OF THESE CASES THE COURT REMANDS TO THE STATE COURTS ON
ONE SINGLE CONSTITUTIONAL CLAIM OF PETITIONERS WITHOUT REACHING OTHER
CONSTITUTIONAL CLAIMS RAISED BY THEM.  THE RESULT IS THAT AFTER THE
STATE COURTS RULE ON THE SINGLE REMAND ISSUE THIS COURT WILL
UNDOUBTEDLY BE CALLED ON TO PASS ON THE OTHER ISSUES WHICH THE COURT
REFUSES TO DECIDE.  AT THE VERY LEAST THIS MEANS POSTPONEMENT OF A
FINAL DECISION IN THESE CASES A YEAR OR TWO YEARS OR THREE YEARS,
UNLESS, THAT IS, THIS COURT SHOULD, ON THE SECOND REVIEW, CHOOSE ONCE
MORE TO DECIDE THE CASES PIECEMEAL.  PIECEMEAL DISPOSITIONS OF CRIMINAL
CASES INEVITABLY CAUSE DELAYS AND HAMPER ENFORCEMENT OF THE CRIMINAL
LAWS AND THERE IS A LOT OF TRUTH IN THE OLD ADAGE THAT DELAY IS A
DEFENDANT'S BEST LAWYER.  SEE WITHERSPOON V. ILLINOIS, 391 U.S. 510,
WHERE A MURDER SENTENCE WAS REVERSED NINE YEARS AFTER THE MURDER.  IT
IS TRUE THAT UNDER FAY V. NOIA, 372 U.S. 391, A CERTAIN AMOUNT OF DELAY
IS INEVITABLE IN CRIMINAL CASES, BUT THAT IS NOT TRUE IN THESE CASES
WHERE THE ISSUES ARE SQUARELY PRESENTED TO US HERE AND NOW. 

LESTER J. SCHAFFER FOR PETITIONER IN NO. 1133, AND HOWARD M. NAZOR
AND GORDON L. NAZOR FOR PETITIONER IN NO. 1700, MISC. 

MICHAEL J. ROTKO AND ARLEN SPECTER FOR RESPONDENT IN NO. 1133; MR.
ROTKO, WILLIAM H. WOLF, JR., AND MR. SPECTER FOR RESPONDENT IN NO.
1095, MISC.; JOSEPH E. MAHONEY FOR RESPONDENT IN NO. 1700, MISC.
..END :













SPENCE V. NORTH CAROLINA, 392 U.S. 649 


       SPENCE ET AL. V. NORTH CAROLINA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

     NORTH CAROLINA. 

        NO. 759, MISC.  DECIDED JUNE 17, 1968.  /1/ 


CERTIORARI GRANTED; NO. 759, MISC., 271 N.C. 23, 155 S.E.2D 802; NO.
1311, MISC., 419 S.W.2D 849; AND NO. 1823, MISC., 388 F.2D 409, VACATED
AND REMANDED. 

PER CURIAM. 

THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITIONS
FOR WRITS OF CERTIORARI ARE GRANTED.  THE JUDGMENTS OF THE COURTS BELOW
ARE VACATED AND THE CASES REMANDED FOR RECONSIDERATION IN THE LIGHT OF
WITHERSPOON V. ILLINOIS, 391 U.S. 510. 

/1/  TOGETHER WITH NO. 1311, MISC., ELLISON V. TEXAS, AND NO. 1823,
MISC., JACKSON V. BETO, CORRECTIONS DIRECTOR, BOTH ON PETITIONS FOR
WRITS OF CERTIORARI.  NO. 1311, MISC., IS TO THE COURT OF CRIMINAL
APPEALS OF TEXAS, AND NO. 1823, MISC., TO THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT. 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN DISSENT FOR REASONS STATED
IN MR. JUSTICE BLACK'S DISSENTING OPINION IN WITHERSPOON V. ILLINOIS,
391 U.S. 510, 532. 

MR. JUSTICE WHITE DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN WITHERSPOON V. ILLINOIS, 391 U.S. 510, 540. 

SAM HOUSTON CLINTON, JR., FOR PETITIONER IN NO. 1311, MISC. 

T. W. BRUTON, ATTORNEY GENERAL OF NORTH CAROLINA, AND HARRY W.
MCGALLIARD, DEPUTY ATTORNEY GENERAL, FOR RESPONDENT IN NO. 759, MISC.
CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, HAWTHORNE PHILLIPS AND LONNY F. ZWIENER,
ASSISTANT ATTORNEYS GENERAL, AND A. J. CARUBBI, JR., FOR RESPONDENT IN
NO. 1311, MISC.  MR. MARTIN, MISS WHITE, AND ROBERT C. FLOWERS, DOUGLAS
H. CHILTON, AND MR. ZWIENER, ASSISTANT ATTORNEYS GENERAL, FOR
RESPONDENT IN NO. 1823, MISC.
..END :







STREETER V. CRAVEN, 392 U.S. 650 


       STREETER V. CRAVEN, WARDEN, ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

   COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 830, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF PEYTON V. ROWE, 391 U.S.
54. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, ALBERT W. HARRIS,
JR., ASSISTANT ATTORNEY GENERAL, AND DERALD E. GRANBERG, DEPUTY
ATTORNEY GENERAL, FOR RESPONDENTS. 
..END :






POPE V. UNITED STATES, 392 U.S. 651 


       POPE V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

        NO. 34, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; 372 F.2D 710, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITIONER WAS CONVICTED BY A JURY AND SENTENCED TO DEATH UNDER
THE FEDERAL BANK ROBBERY ACT, 18 U.S.C. 2113(E).  THE SOLICITOR GENERAL
HAS FILED A MEMORANDUM FOR THE UNITED STATES CONCEDING THAT THIS DEATH
PENALTY PROVISION "SUFFERS FROM THE SAME CONSTITUTIONAL INFIRMITY" AS
THAT FOUND IN THE FEDERAL KIDNAPING ACT, 18 U.S.C. 1201(A).  UNITED
STATES V. JACKSON, 390 U.S. 570.  ACCORDINGLY, THE SOLICITOR GENERAL
CONCEDES THAT THE PETITIONER'S "SENTENCE MUST BE VACATED AND THE CAUSE
REMANDED . . . FOR RESENTENCING."  IN LIGHT OF THIS CONCESSION AND UPON
AN INDEPENDENT EXAMINATION OF THE RECORD, BUT WITHOUT REACHING ANY OF
THE PETITIONER'S OTHER CLAIMS, THE MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND THE PETITION FOR WRIT OF CERTIORARI ARE GRANTED, THE
JUDGMENT IS VACATED, AND THE CASE IS REMANDED TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN THE DISSENTING OPINION OF MR. JUSTICE WHITE IN UNITED STATES
V. JACKSON, 390 U.S. 570, 591. 

MR. JUSTICE BLACK DISSENTS FOR THE FURTHER REASONS STATED IN HIS
DISSENTING OPINION IN LOPINSON V. PENNSYLVANIA, ANTE, P. 648. 

WALLACE M. RUDOLPH FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, RALPH
S. SPRITZER, BEATRICE ROSENBERG, AND JEROME M. FEIT FOR THE UNITED
STATES. 
..END :










WHEAT V. WASHINGTON, 392 U.S. 652 


       WHEAT V. WASHINGTON. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           WASHINGTON. 

        NO. 1301, MISC.  DECIDED JUNE 17, 1968.  /1/ 


CERTIORARI GRANTED; 72 WASH.2D 306, 434 P.2D 10, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITIONS
FOR WRITS OF CERTIORARI ARE GRANTED.  THE JUDGMENTS OF THE SUPREME
COURT OF WASHINGTON ARE VACATED AND THE CASES REMANDED TO THAT COURT
FOR RECONSIDERATION IN THE LIGHT OF BRUTON V. UNITED STATES, 391 U.S.
123, AND WITHERSPOON V. ILLINOIS, 391 U.S. 510. 

/1/  TOGETHER WITH NO. 1535, MISC., AIKEN V. WAHSINGTON, ALSO ON
PETITION FOR WRIT OF CERTIORARI TO THE SAME COURT. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN MR. JUSTICE
BLACK'S DISSENTING OPINION IN WITHERSPOON V. ILLINOIS, 391 U.S. 510,
532, AND MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138. 

MR. JUSTICE WHITE DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINIONS IN WITHERSPOON V. ILLINOIS, 391 U.S. 510, 540, AND BRUTON V.
UNITED STATES, 391 U.S. 123, 138. 

CHARLES M. STOKES FOR PETITIONER IN NO. 1301, MISC.  ANTHONY SAVAGE,
JR., FOR PETITIONER IN NO. 1535, MISC. 

JAMES E. KENNEDY FOR RESPONDENT IN BOTH CASES. 
..END :












PUENTES V. BOARD OF EDUCATION, 392 U.S. 653 


       PUENTES V. BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT

           NO. 21. 

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 562.  DECIDED JUNE 17, 1968. 


18 N.Y.2D 906, 223 N.E.2D 45; 19 N.Y.2D 809, 226 N.E.2D 701, VACATED
AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT OF
APPEALS OF NEW YORK FOR FURTHER CONSIDERATION IN LIGHT OF PICKERING V.
BOARD OF EDUCATION, 391 U.S. 563. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
THE JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND THE CASE SET FOR ORAL ARGUMENT. 

ERNEST FLEISCHMAN FOR APPELLANT. 

LEO F. MCGINITY FOR APPELLEE. 
..END :






















HOLLAND V. HOGAN, 392 U.S. 654 


       HOLLAND ET AL. V. HOGAN, DISTRICT ATTORNEY, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

NO. 653.  DECIDED JUNE 17, 1968. 


272 F.SUPP.  855, VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR FURTHER CONSIDERATION IN LIGHT OF GARDNER V.
BRODERICK, ANTE, P. 273, AND GEORGE CAMPBELL PAINTING CORP. V. REID,
ANTE, P. 286. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 

ROBERT ABELOW, MARSHALL C. BERGER, AND DONALD J. WILLIAMSON FOR
APPELLANTS. 

FRANK S. HOGAN, H. RICHARD UVILLER, AND MICHAEL R. STACK, EACH PRO
SE, AND FOR YASGUR ET AL., J. LEE RANKIN, NORMAN REDLICH, AND STANLEY
BUCHSBAUM FOR ADLER, AND LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW
YORK, PRO SE, AND SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL, AND BRENDA SOLOFF, ASSISTANT ATTORNEY GENERAL, FOR LEFKOWITZ,
APPELLEES. 
..END :



















HENRY V. LOUISIANA, 392 U.S. 655 


       HENRY V. LOUISIANA. 

        APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

        NO. 932.  DECIDED JUNE 17, 1968. 


APPEAL DISMISSED; CERTIORARI GRANTED; 250 LA. 682, 198 SO.2D 889,
REVERSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS GRANTED AND THE
JUDGMENT IS REVERSED.  REDRUP V. NEW YORK, 386 U.S. 767. 

MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT OF THE STATE COURT UPON
THE PREMISES STATED IN HIS SEPARATE OPINION IN ROTH V. UNITED STATES,
354 U.S. 476, 496, AND IN HIS DISSENTING OPINION IN MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455. 

THOMAS BARR III FOR APPELLANT. 

JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, AND WILLIAM P.
SCHULER, SECOND ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :
























MAXWELL V. GOOD SAMARITAN HOSPITAL, 392 U.S. 656 


       MAXWELL, TAX ASSESSOR OF PALM BEACH COUNTY, V. GOOD

           SAMARITAN HOSPITAL ASSN., INC.

        APPEAL FROM THE SUPREME COURT OF FLORIDA. 

        NO. 1147.  DECIDED JUNE 17, 1968. 


204 SO.2D 519, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A PROPERLY PRESENTED FEDERAL QUESTION. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE FORTAS ARE
OF THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE
SET FOR ORAL ARGUMENT. 

CHARLES J. STEELE FOR APPELLANT. 

CHESTER BEDELL FOR APPELLEE. 
..END :




SULLIVAN V. LITTLE HUNTING PARK, 392 U.S. 657 


       SULLIVAN ET AL. V. LITTLE HUNTING PARK INC., ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           APPEALS OF VIRGINIA. 

        NO. 1188.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
VACATED.  THE CASE IS REMANDED TO THE SUPREME COURT OF APPEALS OF
VIRGINIA FOR FURTHER CONSIDERATION IN LIGHT OF JONES V. ALFRED H. MAYER
CO., ANTE, P. 409. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE HARLAN'S DISSENTING OPINION IN JONES V. ALFRED H.
MAYER CO., ANTE, P. 449. 

ALLISON W. BROWN, JR., ROBERT M. ALEXANDER, JACK GREENBERG, AND
JAMES M. NABRIT III FOR PETITIONERS. 

JOHN CHAS. HARRIS FOR RESPONDENTS. 
..END :
























HOPPER V. LOUISIANA, 392 U.S. 658 


       HOPPER ET AL. V. LOUISIANA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

LOUISIANA. 

        NO. 1291.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; 251 LA. 77, 203 SO.2D 222, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
VACATED.  THE CASE IS REMANDED TO THE SUPREME COURT OF LOUISIANA FOR
FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED STATES, 391 U.S.
123, AND ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

CAMILLE F. GRAVEL, JR., FOR PETITIONERS. 

JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, WILLIAM P.
SCHULER, SECOND ASSISTANT ATTORNEY GENERAL, HARRY H. HOWARD, ASSISTANT
ATTORNEY GENERAL, AND LAWRENCE L. MCNAMARA FOR RESPONDENT. 
..END :





















CLARK WALTER & SONS, INC. V. UNITED STATES, 392 U.S. 659 


       CLARK WALTER & SONS, INC. V. UNITED STATES ET AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NEW JERSEY. 

        NO. 1404.  DECIDED JUNE 17, 1968. 


AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE FORTAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 

HOWARD T. ROSEN AND WILLIAM J. O'SHAUGHNESSY FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL
ZIMMERMAN, AND HOWARD E. SHAPIRO FOR THE UNITED STATES, AND DONALD B.
KIPP AND JAMES C. PITNEY FOR WESTERN ELECTRIC CO. ET AL., APPELLEES. 
..END :




COPAS V. SCHMIDT, 392 U.S. 660 


       COPAS V. SCHMIDT, SECRETARY OF DEPARTMENT OF HEALTH AND

           SOCIAL SERVICES OF WISCONSIN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           WISCONSIN. 

        NO. 45, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION TO SUBSTITUTE WILBUR J. SCHMIDT, SECRETARY, WISCONSIN
DEPARTMENT OF HEALTH AND SOCIAL SERVICES, AS THE PARTY RESPONDENT IS
GRANTED.  THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE
PETITION FOR A WRIT OF CERTIORARI ARE ALSO GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF WISCONSIN FOR
FURTHER CONSIDERATION IN LIGHT OF MEMPA V. RHAY, 389 U.S. 128. 

BRONSON C. LAFOLLETTE, ATTORNEY GENERAL OF WISCONSIN, AND WILLIAM A.
PLATZ, ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :



WADE V. YEAGER, 392 U.S. 661 


       WADE V. YEAGER, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE THIRD CIRCUIT. 

        NO. 857, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT FOR FURTHER CO,SIDERATION IN LIGHT OF BRUTON V. UNITED STATES,
391 U.S. 123. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR REASONS STATED
IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED STATES,
391 U.S. 123, 138 (1968). 

JOHN G. THEVOS FOR RESPONDENT. 
..END :
























TOLES V. CLARK, 392 U.S. 662 


       TOLES V. CLARK, ATTORNEY GENERAL, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

         COURT OF APPEALS FOR THE NINTH CIRCUIT. 

NO. 933, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; 385 F.2D 107, VACATED AND REMANDED TO DISTRICT
COURT WITH DIRECTIONS TO DISMISS THE PETITION AS MOOT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF WASHINGTON WITH DIRECTIONS TO DISMISS THE PETITION AS
MOOT. 

MR. JUSTICE DOUGLAS DISSENTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON,
BEATRICE ROSENBERG, AND PAUL C. SUMMITT FOR RESPONDENTS. 
..END :




WEST V. CALIFORNIA, 392 U.S. 663 


       WEST V. CALIFORNIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL
OF

           CALIFORNIA, FOURTH APPELLATE DISTRICT. 

        NO. 1127, MISC.   DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; 253 CAL.APP.2D 348, 61 CAL.RPTR.  216, VACATED
AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR A HEARING AS PROVIDED IN SIMS V. GEORGIA, 385 U.S.
538, AND JACKSON V. DENNO, 378 U.S. 368. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT THE PETITION FOR A WRIT
OF CERTIORARI SHOULD BE GRANTED AND THE CASE SET FOR ORAL ARGUMENT. 

WILLIAM A. DOUGHERTY FOR PETITIONER. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, WILLIAM E. JAMES,
ASSISTANT ATTORNEY GENERAL, AND RICHARD D. HUFFMAN, DEPUTY ATTORNEY
GENERAL, FOR RESPONDENT. 
..END :






















CARROLL V. TEXAS, 392 U.S. 664 


       CARROLL V. TEXAS. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

           APPEALS OF TEXAS. 

        NO. 1224, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
RIDEAU V. LOUISIANA, 373 U.S. 723. 

THE CHIEF JUSTICE, MR. JUSTICE HARLAN, MR. JUSTICE STEWART, AND MR.
JUSTICE WHITE ARE OF THE OPINION THAT CERTIORARI SHOULD BE DENIED. 

DON GLADDEN AND SAM HOUSTON CLINTON, JR., FOR PETITIONER. 

CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, AND HOWARD M. FENDER,
ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :




MCDANIEL V. NORTH CAROLINA, 392 U.S. 665 


       MCDANIEL V. NORTH CAROLINA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

NORTH CAROLINA. 

        NO. 1599, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; 272 N.C. 556, 158 S.E.2D 874, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME
COURT OF NORTH CAROLINA IS VACATED AND THE CASE IS REMANDED TO THAT
COURT FOR FURTHER CONSIDERATION IN THE LIGHT OF HARRISON V. UNITED
STATES, ANTE, P. 219. 

MR. JUSTICE BLACK DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN HARRISON V. UNITED STATES, ANTE, P. 226. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN HARRISON V. UNITED STATES, ANTE, P. 226. 

MR. JUSTICE WHITE DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN HARRISON V. UNITED STATES, ANTE, P. 228. 

T. WADE BRUTON, ATTORNEY GENERAL OF NORTH CAROLINA, AND GEORGE A.
GOODWYN, ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :



















ROBINSON V. TENNESSEE, 392 U.S. 666 


       ROBINSON V. TENNESSEE. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           TENNESSEE. 

        NO. 1625, MISC.  DECIDED JUNE 17, 1968. 


CERTIORARI GRANTED; REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
MIRANDA V. ARIZONA, 384 U.S. 436; DARWIN V. CONNECTICUT, 391 U.S. 346,
AT 350 (CONCURRING OPINION OF MR. JUSTICE HARLAN). 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
CERTIORARI SHOULD BE DENIED. 

JACK GREENBERG, MICHAEL MELTSNER, AND ANTHONY G. AMSTERDAM FOR
PETITIONER. 

GEORGE F. MCCANLESS, ATTORNEY GENERAL OF TENNESSEE, AND THOMAS E.
FOX, DEPUTY ATTORNEY GENERAL, FOR RESPONDENT. 
..END :
























TAGGART V. NEW YORK, 392 U.S. 667 


       TAGGART V. NEW YORK. 

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 1668, MISC.  DECIDED JUNE 17, 1968. 


20 N.Y.2D 335, 229 N.E.2D 581; 21 N.Y.2D 729, 234 N.E.2D 714, APPEAL
DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
FAILURE TO FILE THE NOTICE OF APPEAL WITHIN THE TIME PROVIDED BY RULE
11. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE APPEAL SHOULD BE
DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS DISSENTS. 

LEON B. POLSKY FOR APPELLANT. 

THOMAS J. MACKEIL AND PETER J. O'CONNOR FOR APPELLEE. 
..END :




TERRY V. OHIO, 392 U.S. 1 


       TERRY V. OHIO. 

        CERTIORARI TO THE SUPREME COURT OF OHIO. 

        NO. 67.  ARGUED DECEMBER 12, 1967.-- DECIDED JUNE 10,
1968. 


A CLEVELAND DETECTIVE (MCFADDEN), ON A DOWNTOWN BEAT WHICH HE HAD
BEEN PATROLLING FOR MANY YEARS, OBSERVED TWO STRANGERS (PETITIONER AND
ANOTHER MAN, CHILTON) ON A STREET CORNER.  HE SAW THEM PROCEED
ALTERNATELY BACK AND FORTH ALONG AN IDENTICAL ROUTE, PAUSING TO STARE
IN THE SAME STORE WINDOW, WHICH THEY DID FOR A TOTAL OF ABOUT 24
TIMES.  EACH COMPLETION OF THE ROUTE WAS FOLLOWED BY A CONFERENCE
BETWEEN THE TWO ON A CORERN, AT ONE OF WHICH THEY WERE JOINED BY A
THIRD MAN (KATZ) WHO LEFT SWIFTLY.  SUSPECTING THE TWO MEN OF "CASING A
JOB, A STICK-UP," THE OFFICER FOLLOWED THEM AND SAW THEM REJOIN THE
THIRD MAN A COUPLE OF BLOCKS AWAY IN FRONT OF A STORE.  THE OFFICER
APPROACHED THE THREE, IDENTIFIED HIMSELF AS A POLICEMAN, AND ASKED
THEIR NAMES.  THE MEN "MUMBLED SOMETHING," WHEREUPON MCFADDED SPUN
PETITIONER AROUND, PATTED DOWN HIS OUTSIDE CLOTHING, AND FOUND IN HIS
OVERCOAT POCKET, BUT HAS UNABLE TO REMOVE, A PISTOL.  THE OFFICER
ORDERED THE THREE INTO THE STORE.  HE REMOVED PETITIONER'S OVERCOAT,
TOOK OUT A REVOLVER, AND ORDERED THE THREE TO FACE THE WALL WITH THEIR
HANDS RAISED.  HE PATTED DOWN THE OUTER CLOTHING OF CHILTON AND KATZ
AND SEIZED A REVOLVER FROM CHILTON'S OUTSIDE OVERCOAT POCKET.  HE DID
NOT PUT HIS HANDS UNDER THE OUTER GARMENTS OF KATZ (SINCE HE DISCOVERED
NOTHING IN HIS PAT-DOWN WHICH MIGHT HAVE BEEN A WEAPON), OR UNDER
PETITIONER'S OR CHILTON'S OUTER GARMENTS UNTIL HE FELT THE GUNS.  THE
THREE WERE TAKEN TO THE POLICE STATION.  PETITIONER AND CHILTON WERE
CHARGED WITH CARRYING CONCEALED WEAPONS.  THE DEFENSE MOVED TO SUPPRESS
THE WEAPONS.  THOUGH THE TRIAL COURT REJECTED THE PROSECUTION THEORY
THAT THE GUNS HAD BEEN SEIZED DURING A SEARCH INCIDENT TO A LAWFUL
ARREST, THE COURT DENIED THE MOTION TO SUPPRESS AND ADMITTED THE
WEAPONS INTO EVIDENCE ON THE GROUND THAT THE OFFICER HAD CAUSE TO
BELIEVE THAT PETITIONER AND CHILTON WERE ACTING SUSPICIOUSLY, THAT
THEIR INTERROGATION WAS WARRANTED, AND THAT THE OFFICER FOR HIS OWN
PROTECTION HAD THE RIGHT TO PAT DOWN THEIR OUTER CLOTHING HAVING
REASONABLE CAUSE TO BELIEVE THAT THEY MIGHT BE ARMED.  THE COURT
DISTINGUISHED BETWEEN AN INVESTIGATORY "STOP" AND AN ARREST, AND
BETWEEN A "FRISK" OF THE OUTER CLOTHING FOR WEAPONS AND A FULLBLOWN
SEARCH FOR EVIDENCE OF CRIME.  PETITIONER AND CHILTON WERE FOUND
GUILTY, AN INTERMEDIATE APPELLATE COURT AFFIRMED, AND THE STATE SUPREME
COURT DISMISSED THE APPEAL ON THE GROUND THAT "NO SUBSTANTIAL
CONSTITUTIONAL QUESTION" WAS INVOLVED.  HELD: 

1.  THE FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCHES AND
SEIZURES, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT,
"PROTECTS PEOPLE, NOT PLACES," AND THEREFORE APPLIES AS MUCH TO THE
CITIZEN ON THE STREETS AS WELL AS AT HOME OR ELSEWHERE.  PP. 8-9. 

2.  THE ISSUE IN THIS CASE IS NOT THE ABSTRACT PROPRIETY OF THE
POLICE CONDUCT BUT THE ADMISSIBILITY AGAINST PETITIONER OF THE EVIDENCE
UNCOVERED BY THE SEARCH AND SEIZURE.  P. 12. 

3.  THE EXCLUSIONARY RULE CANNOT PROPERLY BE INVOKED TO EXCLUDE THE
PRODUCTS OF LEGITIMATE AND RESTRAINED POLICE INVESTIGATIVE TECHNIQUES;
AND THIS COURT'S APPROVAL OF SUCH TECHNIQUES SHOULD NOT DISCOURAGE
REMEDIES OTHER THAN THE EXCLUSIONARY RULE TO CURTAIL POLICE ABUSES FOR
WHICH THAT IS NOT AN EFFECTIVE SANCTION.  PP. 13-15. 

4.  THE FOURTH AMENDMENT APPLIES TO "STOP AND FRISK" PROCEDURES SUCH
AS THOSE FOLLOWED HERE.  PP. 16-20. 

(A) WHENEVER A POLICE OFFICER ACCOSTS AN INDIVIDUAL AND RESTRAINS
HIS FREEDOM TO WALK AWAY, HE HAS "SEIZED" THAT PERSON WITHIN THE
MEANING OF THE FOURTH AMENDMENT.  P. 16. 

(B) A CAREFUL EXPLORATION OF THE OUTER SURFACES OF A PERSON'S
CLOTHING IN AN ATTEMPT TO FIND WEAPONS IS A "SEARCH" UNDER THAT
AMENDMENT.  P. 16. 

5.  WHERE A REASONABLY PRUDENT OFFICER IS WARRANTED IN THE
CIRCUMSTANCES OF A GIVEN CASE IN BELIEVING THAT HIS SAFETY OR THAT OF
OTHERS IS ENDANGERED, HE MAY MAKE A REASONABLY SEARCH FOR WEAPONS OF
THE PERSON BELIEVED BY HIM TO BE ARMED AND DANGEROUS REGARDLESS OF
WHETHER HE HAS PROBABLE CAUSE TO ARREST THAT INDIVIDUAL FOR CRIME OR
THE ABSOLUTE CERTAINTY THAT THE INDIVIDUAL IS ARMED.  PP. 20-27. 

(A) THOUGH THE POLICE MUST WHENEVER PRACTICABLE SECURE A WARRANT TO
MAKE A SEARCH AND SEIZURE, THAT PROCEDURE CANNOT BE FOLLOWED WHERE
SWIFT ACTION BASED UPON ON-THE-SPOT OBSERVATIONS OF THE OFFICER ON THE
BEAT IS REQUIRED.  P. 20. 

(B) THE REASONABLENESS OF ANY PARTICULAR SEARCH AND SEIZURE MUST BE
ASSESSED IN LIGHT OF THE PARTICULAR CIRCUMSTNACES AGAINST THE STANDARD
OF WHETHER A MAN OF REASONABLE CAUTION IS WARRANTED IN BELIEVING THAT
THE ACTION TAKEN WAS APPROPRIATE.  PP. 21-22. 

(C) THE OFFICER HERE WAS PERFORMING A LEGITIMATE FUNCTION OF
INVESTIGATING SUSPICIOUS CONDUCT WHEN HE DECIDED TO APPROACH PETITIONER
AND HIS COMPANIONS.  P. 22. 

(D) AN OFFICER JUSTIFIED IN BELIEVING THAT AN INDIVIDUAL WHOSE
SUSPICIOUS BEHAVIOR HE IS INVESTIGATING AT CLOSE RANGE IS ARMED MAY, TO
NEUTRALIZE THE THREAT OF PHYSICAL HARM, TAKE NECESSARY MEASURS TO
DETERMINE WHETHER THAT PERSON IS CARRYING A WEAPON.  P. 24. 

(E) A SEARCH FOR WEAPONS IN THE ABSENCE OF PROBABLE CAUSE TO ARREST
MUST BE STRICTLY CIRCUMSCRIBED BY THE EXIGENCIES OF THE SITUATION.  PP.
25-26. 

(F) AN OFFICER MAY MAKE AN INTRUSION SHORT OF ARREST WHERE HE HAS
REASONABLE APPREHENSION OF DANGER BEFORE BEING POSSESSED OF INFORMATION
JUSTIFYING ARREST.  PP. 26-27. 

6.  THE OFFICER'S PROTECTIVE SEIZURE OF PETITIONER AND HIS
COMPANIONS AND THE LIMITED SEARCH WHICH HE MADE WERE REASONABLE, BOTH
AT THEIR INCEPTION AND AS CONDUCTED.  PP. 27-30. 

(A) THE ACTIONS OF PETITIONER AND HIS COMPANIONS WERE CONSISTENT
WITH THE OFFICER'S HYPOTHESIS THAT THEY WERE CONTEMPLATING A DAYLIGHT
ROBBERY AND WERE ARMED.  P. 28. 

(B) THE OFFICER'S SEARCH WAS CONFINED TO WHAT WAS MINIMALLY
NECESSARY TO DETERMINE WHETHER THE MEN WERE ARMED, AND THE INTRUSION,
WHICH WAS MADE FOR THE SOLE PURPOSE OF PROTECTING HIMSLEF AND OTHERS
NEARBY, WAS CONFINED TO ASCERTAINING THE PRESENCE OF WEAPONS.  PP. 29
30. 

7.  THE REVOLVER SEIZED FROM PETITIONER WAS PROPERLY ADMITTED INTO
EVIDENCE AGAINST HIM, SINCE THE SEARCH WHICH LED TO ITS SEIZURE WAS
REASONABLE UNDER THE FOURTH AMENDMENT.  PP. 30-31. 

AFFIRMED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS SERIOUS QUESTIONS CONCERNING THE ROLE OF THE
FOURTH AMENDMENT IN THE CONFRONTATION ON THE STREET BETWEEN THE CITIZEN
AND THE POLICEMAN INVESTIGATING SUSPICIOUS CIRCUMSTANCES. 

PETITIONER TERRY WAS CONVICTED OF CARRYING A CONCEALED WEAPON AND
SENTENCED TO THE STATUTORILY PRESCRIBED TERM OF ONE TO THREE YEARS IN
THE PENITENTIARY.  /1/  FOLLOWING THE DENIAL OF A PRETRIAL MOTION TO
SUPPRESS, THE PROSECUTION INTRODUCED IN EVIDENCE TWO REVOLVERS AND A
NUMBER OF BULLETS SEIZED FROM TERRY AND A CODEFENDANT, RICHARD CHILTON,
/2/  BY CLEVELAND POLICE DETECTIVE MARTIN MCFADDEN.  AT THE HEARING ON
THE MOTION TO SUPPRESS THIS EVIDENCE, OFFICER MCFADDEN TESTIFIED THAT
WHILE HE WAS PATROLLING IN PLAIN CLOTHES IN DOWNTOWN CLEVELAND AT
APPROXIMATELY 2:30 IN THE AFTERNOON OF OCTOBER 31, 1963, HIS ATTENTION
WAS ATTRACTED BY TWO MEN, CHILTON AND TERRY, STANDING ON THE CORNER OF
HURON ROAD AND EUCLID AVENUE.  HE HAD NEVER SEEN THE TWO MEN BEFORE,
AND HE WAS UNABLE TO SAY PRECISELY WHAT FIRST DREW HIS EYE TO THEM. 
HOWEVER, HE TESTIFIED THAT HE HAD BEEN A POLICEMAN FOR 39 YEARS AND A
DETECTIVE FOR 35 AND THAT HE HAD BEEN ASSIGNED TO PATROL THIS VICINITY
OF DOWNTOWN CLEVELAND FOR SHOPLIFTERS AND PICKPOCKETS FOR 30 YEARS.  HE
EXPLAINED THAT HE HAD DEVELOPED ROUTINE HABITS OF OBSERVATION OVER THE
YEARS AND THAT HE WOULD "STAND AND WATCH PEOPLE OR WALK AND WATCH
PEOPLE AT MANY INTERVALS OF THE DAY."  HE ADDED:  "NOW, IN THIS CASE
WHEN I LOOKED OVER THEY DIDN'T LOOK RIGHT TO ME AT THE TIME." 

HIS INTEREST AROUSED, OFFICER MCFADDEN TOOK UP A POST OF OBSERVATION
IN THE ENTRANCE TO A STORE 300 TO 400 FEET AWAY FROM THE TWO MEN.  "I
GET MORE PURPOSE TO WATCH THEM WHEN I SEEN THEIR MOVEMENTS," HE
TESTIFIED.  HE SAW ONE OF THE MEN LEAVE THE OTHER ONE AND WALK
SOUTHWEST ON HURON ROAD, PAST SOME STORES.  THE MAN PAUSED FOR A MOMENT
AND LOOKED IN A STORE WINDOW, THEN WALKED ON A SHORT DISTANCE, TURNED
AROUND AND WALKED BACK TOWARD THE CORNER, PAUSING ONCE AGAIN TO LOOK IN
THE SAME STORE WINDOW.  HE REJOINED HIS COMPANION AT THE CORNER, AND
THE TWO CONFERRED BRIEFLY.  THEN THE SECOND MAN WENT THROUGH THE SAME
SERIES OF MOTIONS, STROLLING DOWN HURON ROAD, LOOKING IN THE SAME
WINDOW, WALKING ON A SHORT DISTANCE, TURNING BACK, PEERING IN THE STORE
WINDOW AGAIN, AND RETURNING TO CONFER WITH THE FIRST MAN AT THE
CORNER.  THE TWO MEN REPEATED THIS RITUAL ALTERNATELY BETWEEN FIVE AND
SIX TIMES APIECE-- IN ALL, ROUGHLY A DOZEN TRIPS.  AT ONE POINT, WHILE
THE TWO WERE STANDING TOGETHER ON THE CORNER, A THIRD MAN APPROACHED
THEM AND ENGAGED THEM BRIEFLY IN CONVERSATION.  THIS MAN THEN LEFT THE
TWO OTHERS AND WALKED WEST ON EUCLID AVENUE.  CHILTON AND TERRY RESUMED
THEIR MEASURED PACING, PEERING, AND CONFERRING.  AFTER THIS HAD GONE ON
FOR 10 TO 12 MINUTES, THE TWO MEN WALKED OFF TOGETHER, HEADING WEST ON
EUCLID AVENUE, FOLLOWING THE PATH TAKEN EARLIER BY THE THIRD MAN. 

BY THIS TIME OFFICER MCFADDEN HAD BECOME THOROUGHLY SUSPICIOUS.  HE
TESTIFIED THAT AFTER OBSERVING THEIR ELABORATELY CASUAL AND OFT
REPEATED RECONNAISSANCE OF THE STORE WINDOW ON HURON ROAD, HE SUSPECTED
THE TWO MEN OF "CASING A JOB, A STICK-UP," AND THAT HE CONSIDERED IT
HIS DUTY AS A POLICE OFFICER TO INVESTIGATE FURTHER.  HE ADDED THAT HE
FEARED "THEY MAY HAVE A GUN."  THUS, OFFICER MCFADDEN FOLLOWED CHILTON
AND TERRY AND SAW THEM STOP IN FRONT OF ZUCKER'S STORE TO TALK TO THE
SAME MAN WHO HAD CONFERRED WITH THEM EARLIER ON THE STREET CORNER. 
DECIDING THAT THE SITUATION WAS RIPE FOR DIRECT ACTION, OFFICER
MCFADDEN APPROACHED THE THREE MEN, IDENTIFIED HIMSELF AS A POLICE
OFFICER AND ASKED FOR THEIR NAMES.  AT THIS POINT HIS KNOWLEDGE WAS
CONFINED TO WHAT HE HAD OBSERVED.  HE WAS NOT ACQUAINTED WITH ANY OF
THE THREE MEN BY NAME OR BY SIGHT, AND HE HAD RECEIVED NO INFORMATION
CONCERNING THEM FROM ANY OTHER SOURCE.  WHEN THE MEN "MUMBLED
SOMETHING" IN RESPONSE TO HIS INQUIRIES, OFFICER MCFADDEN GRABBED
PETITIONER TERRY, SPUN HIM AROUND SO THAT THEY WERE FACING THE OTHER
TWO, WITH TERRY BETWEEN MCFADDEN AND THE OTHERS, AND PATTED DOWN THE
OUTSIDE OF HIS CLOTHING.  IN THE LEFT BREAST POCKET OF TERRY'S OVERCOAT
OFFICER MCFADDEN FELT A PISTOL.  HE REACHED INSIDE THE OVERCOAT POCKET,
BUT WAS UNABLE TO REMOVE THE GUN.  AT THIS POINT, KEEPING TERRY BETWEEN
HIMSELF AND THE OTHERS, THE OFFICER ORDERED ALL THREE MEN TO ENTER
ZUCKER'S STORE.  AS THEY WENT IN, HE REMOVED TERRY'S OVERCOAT
COMPLETELY, REMOVED A .38-CALIBER REVOLVER FROM THE POCKET AND ORDER
ALL THREE MEN TO FACE THE WALL WITH THEIR HANDS RAISED.  OFFICER
MCFADDEN PROCEEDED TO PAT DOWN THE OUTER CLOTHING OF CHILTON AND THE
THIRD MAN, KATZ.  HE DISCOVERED ANOTHER REVOLVER IN THE OUTER POCKET OF
CHILTON'S OVERCOAT, BUT NO WEAPONS WERE FOUNG ON KATZ.  THE OFFICER
TESTIFIED THAT HE ONLY PATTED THE MEN DOWN TO SEE WHETHER THEY HAD
WEAPONS, AND THAT HE DID NOT PUT HIS HANDS BENEATH THE OUTER GARMENTS
OF EITHER TERRY OR CHILTON UNTIL HE FELT THEIR GUNS.  SO FAR AS APPEARS
FROM THE RECORD, HE NEVER PLACED HIS HANDS BENEATH KATZ' OUTER
GARMENTS.  OFFICER MCFADDEN SEIZED CHILTON'S GUN, ASKED THE PROPRIETOR
OF THE STORE TO CALL A POLICE WAGON, AND TOOK ALL THREE MEN TO THE
STATION, WHERE CHILTON AND TERRY WERE FORMALLY CHARGED WITH CARRYING
CONCEALED WEAPONS. 

ON THE MOTION TO SUPPRESS THE GUNS THE PROSECUTION TOOK THE POSITION
THAT THEY HAD BEEN SEIZED FOLLOWING A SEARCH INCIDENT TO A LAWFUL
ARREST.  THE TRIAL COURT REJECTED THIS THEORY, STATING THAT IT "WOULD
BE STRETCHING THE FACTS BEYOND REASONABLE COMPREHENSION" TO FIND THAT
OFFICER MCFADDEN HAD HAD PROBABLE CAUSE TO ARREST THE MEN BEFORE HE
PATTED THEM DOWN FOR WEAPONS.  HOWEVER, THE COURT DENIED THE
DEFENDANTS' MOTION ON THE GROUND THAT OFFICER MCFADDEN, ON THE BASIS OF
HIS EXPERIENCE, "HAD REASONABLE CAUSE TO BELIEVE . . . THAT THE
DEFENDANTS WERE CONDUCTING THEMSELVES SUSPICIOUSLY, AND SOME
INTERROGATION SHOULD BE MADE OF THEIR ACTION."  PURELY FOR HIS OWN
PROTECTION, THE COURT HELD, THE OFFICER HAD THE RIGHT TO PAT DOWN THE
OUTER CLOTHING OF THESE MEN, WHO HE HAD REASONABLE CAUSE TO BELIEVE
MIGHT BE ARMED.  THE COURT DISTINGUISHED BETWEEN AN INVESTIGATORY
"STOP" AND AN ARREST, AND BETWEEN A "FRISK" OF THE OUTER CLOTHING FOR
WEAPONS AND A FULL-BLOWN SEARCH FOR EVIDENCE OF CRIME.  THE FRISK, IT
HELD, WAS ESSENTIAL TO THE PROPER PERFORMANCE OF THE OFFICER'S
INVESTIGATORY DUTIES, FOR WITHOUT IT "THE ANSWER TO THE POLICE OFFICER
MAY BE A BULLET, AND A LOADED PISTOL DISCOVERED DURING THE FRISK IS
ADMISSIBLE." 

AFTER THE COURT DENIED THEIR MOTION TO SUPPRESS, CHILTON AND TERRY
WAIVED JURY TRIAL AND PLEADED NOT GUILTY.  THE COURT ADJUDGED THEM
GUILTY, AND THE COURT OF APPEALS FOR THE EIGHTH JUDICIAL DISTRICT,
CUYAHOGA COUNTY, AFFIRMED.  STATE V. TERRY, 5 OHIO APP.2D 122, 214
N.E.2D 114 (1966).  THE SUPREME COURT OF OHIO DISMISSED THEIR APPEAL ON
THE GROUND THAT NO "SUBSTANTIAL CONSTITUTIONAL QUESTION" WAS INVOLVED. 
WE GRANTED CERTIORARI, 387 U.S. 929 (1967), TO DETERMINE WHETHER THE
ADMISSION OF THE REVOLVERS IN EVIDENCE VIOLATED PETITIONER'S RIGHTS
UNDER THE FOURTH AMENDMENT, MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH.  MAPP V. OHIO, 367 U.S. 643 (1961).  WE AFFIRM THE
CONVICTION. 

        I 

THE FOURTH AMENDMENT PROVIDES THAT "THE RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS , AND EFFECTS, AGAINST
UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED.  . . . "
THIS INESTIMABLE RIGHT OF PERSONAL SECURITY BELONGS AS MUCH TO THE
CITIZEN ON THE STREETS OF OUR CITIES AS TO THE HOMEOWNER CLOSETED IN
HIS STUDY TO DISPOSE OF HIS SECRET AFFAIRS.  FOR, AS THIS COURT HAS
ALWAYS RECOGNIZED, 

      "NO RIGHT IS HELD MORE SACRED, OR IS MORE CAREFULLY GUARDED,
BY

  THE COMMON LAW, THAN THE RIGHT OF EVERY INDIVIDUAL TO THE

  POSSESSION AND CONTROL OF HIS OWN PERSON, FREE FROM ALL RESTRAINT

  OR INTERFERENCE OF OTHERS, UNLESS BY CLEAR AND UNQUESTIONABLE

  AUTHORITY OF LAW."  UNION PAC. R. CO. V. BOTSFORD, 141 U.S. 250,

  251 (1891). 

WE HAVE RECENTLY HELD THAT "THE FOURTH AMENDMENT PROTECTS PEOPLE, NOT
PLACES," KATZ V. UNITED STATES, 289 U.S. 347, 351 (1967), AND WHEREVER
AN INDIVIDUAL MAY HARBOR A REASONABLE "EXPECTATION OF PRIVACY," ID., AT
361 (MR. JUSTICE HARLAN, CONCURRING), HE IS ENTITLED TO BE FREE FROM
UNREASONABLE GOVERNMENTAL INTRUSION.  OF COURSE, THE SPECIFIC CONTENT
AND INCIDENTS OF THIS RIGHT MUST BE SHAPED BY THE CONTEXT IN WHICH IT
IS ASSERTED.  FOR "WHAT THE CONSTITUTION FORBIDS IS NOT ALL SEARCHES
AND SEIZURES, BUT UNREASONABLE SEARCHES AND SEIZURES."  ELKINS V.
UNITED STATES, 364 U.S. 206, 222 (1960).  UNQUESTIONABLY PETITIONER WAS
ENTITLED TO THE PROTECTION OF THE FOURTH AMENDMENT AS HE WALKED DOWN
THE STREET IN CLEVELAND.  BECK V. OHIO, 379 U.S. 89 (1964); RIOS V.
UNITED STATES, 364 U.S. 253 (1960); HENRY V. UNITED STATES, 361 U.S. 98
(1959); UNITED STATES V. DI RE, 332 U.S. 581 (1948); CARROLL V. UNITED
STATES, 267 U.S. 132 (1925).  THE QUESTION IS WHETHER IN ALL THE
CIRCUMSTANCES OF THIS ON-THE-STREET ENCOUNTER, HIS RIGHT TO PERSONAL
SECURITY WAS VIOLATED BY AN UNREASONABLE SEARCH AND SEIZURE. 

WE WOULD BE LESS THAN CANDID IF WE DID NOT ACKNOWLEDGE THAT THIS
QUESTION THRUSTS TO THE FORE DIFFICULT AND TROUBLESOME ISSUES REGARDING
A SENSITIVE AREA OF POLICE ACTIVITY-- ISSUES WHICH HAVE NEVER BEFORE
BEEN SQUARELY PRESENTED TO THIS COURT.  REFLECTIVE OF THE TENSIONS
INVOLVED ARE THE PRACTICAL AND CONSTITUTIONAL ARGUMENTS PRESSED WITH
GREAT VIGOR ON BOTH SIDES OF THE PUBLIC DEBATE OVER THE POWER OF THE
POLICE TO "STOP AND FRISK"-- AS IT IS SOMETIMES EUPHEMISTICALLY TERMED-
SUSPICIOUS PERSONS. 

ON THE ONE HAND, IT IS FREQUENTLY ARGUED THAT IN DEALING WITH THE
RAPIDLY UNFOLDING AND OFTEN DANGEROUS SITUATIONS ON CITY STREETS THE
POLICE ARE IN NEED OF AN ESCALATING SET OF FLEXIBLE RESPONSES,
GRADUATED IN RELATION TO THE AMOUNT OF INFORMATION THEY POSSESS.  FOR
THIS PURPOSE IT IS URGED THAT DISTINCTIONS SHOULD BE MADE BETWEEN A
"STOP" AND AN "ARREST" (OR A "SEIZURE" OF A PERSON), AND BETWEEN A
"FRISK" AND A "SEARCH."  /3/  THUS, IT IS ARGUED, THE POLICE SHOULD BE
ALLOWED TO "STOP" A PERSON AND DETAIN HIM BRIEFLY FOR QUESTIONING UPON
SUSPICION THAT HE MAY BE CONNECTED WITH CRIMINAL ACTIVITY.  UPON
SUSPICION THAT THE PERSON MAY BE ARMED, THE POLICE SHOULD HAVE THE
POWER TO "FRISK" HIM FOR WEAPONS.  IF THE "STOP" AND THE "FRISK" GIVE
RISE TO PROBABLE CAUSE TO BELIEVE THAT THE SUSPECT HAS COMMITTED A
CRIME, THEN THE POLICE SHOULD BE EMPOWERED TO MAKE A FORMAL "ARREST,"
AND A FULL INCIDENT "SEARCH" OF THE PERSON.  THIS SCHEME IS JUSTIFIED
IN PART UPON THE NOTION THAT A "STOP" AND A "FRISK" AMOUNT TO A MERE
"MINOR INCONVENIENCE AND PETTY INDIGNITY,"  /4/  WHICH CAN PROPERLY BE
IMPOSED UPON THE CITIZEN IN THE INTEREST OF EFFECTIVE LAW ENFORCEMENT
ON THE BASIS OF A POLICE OFFICER'S SUSPICION.  /5/ 

ON THE OTHER SIDE THE ARGUMENT IS MADE THAT THE AUTHORITY OF THE
POLICE MUST BE STRICTLY CIRCUMSCRIBED BY THE LAW OF ARREST AND SEARCH
AS IT HAS DEVELOPED TO DATE IN THE TRADITIONAL JURISPRUDENCE OF THE
FOURTH AMENDMENT.  /6/  IT IS CONTENDED WITH SOME FORCE THAT THERE IS
NOT-- AND CANNOT BE-- A VARIETY OF POLICE ACTIVITY WHICH DOES NOT
DEPEND SOLELY UPON THE VOLUNTARY COOPERATION OF THE CITIZEN AND YET
WHICH STOPS SHORT OF AN ARREST BASED UPON PROBABLE CAUSE TO MAKE SUCH
AN ARREST.  THE HEART OF THE FOURTH AMENDMENT, THE ARGUMENT RUNS, IS A
SEVERE REQUIREMENT OF SPECIFIC JUSTIFICATION FOR ANY INTRUSION UPON
PROTECTED PERSONAL SECURITY, COUPLED WITH A HIGHLY DEVELOPED SYSTEM OF
JUDICIAL CONTROLS TO ENFORCE UPON THE AGENTS OF THE STATE THE COMMANDS
OF THE CONSTITUTION.  ACQUIESCENCE BY THE COURTS IN THE COMPULSION
INHERENT IN THE FIELD INTERROGATION PRACTICES AT ISSUE HERE, IT IS
URGED, WOULD CONSTITUTE AN ABDICATION OF JUDICIAL CONTROL OVER, AND
INDEED AN ENCOURAGEMENT OF, SUBSTANTIAL INTERFERENCE WITH LIBERTY AND
PERSONAL SECURITY BY POLICE OFFICERS WHOSE JUDGMENT IS NECESSARILY
COLORED BY THEIR PRIMARY INVOLVEMENT IN "THE OFTEN COMPETITIVE
ENTERPRISE OF FERRETING OUT CRIME."  JOHNSON V. UNITED STATES, 333 U.S.
10, 14 (1948).  THIS, IT IS ARGUED, CAN ONLY SERVE TO EXACERBATE POLICE
COMMUNITY TENSIONS IN THE CROWDED CENTERS OF OUR NATION'S CITIES.  /7/ 

IN THIS CONTEXT WE APPROACH THE ISSUES IN THIS CASE MINDFUL OF THE
LIMITATIONS OF THE JUDICIAL FUNCTION IN CONTROLLING THE MYRIAD DAILY
SITUATIONS IN WHICH POLICEMEN AND CITIZENS CONFRONT EACH OTHER ON THE
STREET.  THE STATE HAS CHARACTERIZED THE ISSUE HERE AS "THE RIGHT OF A
POLICE OFFICER . . . TO MAKE AN ON-THE-STREET STOP, INTERROGATE AND PAT
DOWN FOR WEAPONS (KNOWN IN STREET VERNACULAR AS 'STOP AND FRISK')." 
/8/  BUT THIS IS ONLY PARTLY ACCURATE.  FOR THE ISSUE IS NOT THE
ABSTRACT PROPRIETY OF THE POLICE CONDUCT, BUT THE ADMISSIBILITY AGAINST
PETITIONER OF THE EVIDENCE UNCOVERED BY THE SEARCH AND SEIZURE.  EVER
SINCE ITS INCEPTION, THE RULE EXCLUDING EVIDENCE SEIZED IN VIOLATION OF
THE FOURTH AMENDMENT HAS BEEN RECOGNIZED AS A PRINCIPAL MODE OF
DISCOURAGING LAWLESS POLICE CONDUCT.  SEE WEEKS V. UNITED STATES, 232
U.S. 383, 391-393 (1914).  THUS ITS MAJOR THRUST IS A DETERRENT ONE,
SEE LINKLETTER V. WALKER, 381 U.S. 618, 629-635 (1965), AND EXPERIENCE
HAS TAUGHT THAT IT IS THE ONLY EFFECTIVE DETERRENT TO POLICE MISCONDUCT
IN THE CRIMINAL CONTEXT, AND THAT WITHOUT IT THE CONSTITUTIONAL
GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES WOULD BE A MERE
"FORM OF WORDS."  MAPP V. OHIO, 367 U.S. 643, 655 (1961).  THE RULE
ALSO SERVES ANOTHER VITAL FUNCTION-- "THE IMPERATIVE OF JUDICIAL
INTEGRITY."  ELKINS V. UNITED STATES, 364 U.S. 206, 222 (1960).  COURTS
WHICH SIT UNDER OUR CONSTITUTION CANNOT AND WILL NOT BE MADE PARTY TO
LAWLESS INVASIONS OF THE CONSTITUTIONAL RIGHTS OF CITIZENS BY
PERMITTING UNHINDERED GOVERNMENTAL USE OF THE FRUITS OF SUCH
INVASIONS.  THUS IN OUR SYSTEM EVIDENTIARY RULINGS PROVIDE THE CONTEXT
IN WHICH THE JUDICIAL PROCESS OF INCLUSION AND EXCLUSION APPROVES SOME
CONDUCT AS COMPORTING WITH CONSTITUTIONAL GUARANTEES AND DISAPPROVES
OTHER ACTIONS BY STATE AGENTS.  A RULING ADMITTING EVIDENCE IN A
CRIMINAL TRIAL, WE RECOGNIZE, HAS THE NECESSARY EFFECT OF LEGITIMIZING
THE CONDUCT WHICH PRODUCED THE EVIDENCE, WHILE AN APPLICATION OF THE
EXCLUSIONARY RULE WITHHOLDS THE CONSTITUTIONAL IMPRIMATUR. 

THE EXCLUSIONARY RULE HAS ITS LIMITATIONS, HOWEVER, AS A TOOL OF
JUDICIAL CONTROL.  IT CANNOT PROPERLY BE INVOKED TO EXCLUDE THE
PRODUCTS OF LEGITIMATE POLICE INVESTIGATIVE TECHNIQUES ON THE GROUND
THAT MUCH CONDUCT WHICH IS CLOSELY SIMILAR INVOLVES UNWARRANTED
INTRUSIONS UPON CONSTITUTIONAL PROTECTIONS.  MOREOVER, IN SOME CONTEXTS
THE RULE IS INEFFECTIVE AS A DETERRENT.  STREET ENCOUNTERS BETWEEN
CITIZENS AND POLICE OFFICERS ARE INCREDIBLY RICH IN DIVERSITY.  THEY
RANGE FROM WHOLLY FRIENDLY EXCHANGES OF PLEASANTRIES OR MUTUALLY USEFUL
INFORMATION TO HOSTILE CONFRONTATIONS OF ARMED MEN INVOLVING ARRESTS,
OR INJURIES, OR LOSS OF LIFE.  MOREOVER, HOSTILE CONFRONTATIONS ARE NOT
ALL OF A PIECE.  SOME OF THEM BEGIN IN A FRIENDLY ENOUGH MANNER, ONLY
TO TAKE A DIFFERENT TURN UPON THE INJECTION OF SOME UNEXPECTED ELEMENT
INTO THE CONVERSATION.  ENCOUNTERS ARE INITIATED BY THE POLICE FOR A
WIDE VARIETY OF PURPOSES, SOME OF WHICH ARE WHOLLY UNRELATED TO A
DESIRE TO PROSECUTE FOR CRIME.  /9/  DOUBTLESS SOME POLICE "FIELD
INTERROGATION" CONDUCT VIOLATES THE FOURTH AMENDMENT.  BUT A STERN
REFUSAL BY THIS COURT TO CONDONE SUCH ACTIVITY DOES NOT NECESSARILY
RENDER IT RESPONSIVE TO THE EXCLUSIONARY RULE.  REGARDLESS OF HOW
EFFECTIVE THE RULE MAY BE WHERE OBTAINING CONVICTIONS IS AN IMPORTANT
OBJECTIVE OF THE POLICE, /10/  IT IS POWERLESS TO DETER INVASIONS OF
CONSTITUTIONALLY GUARANTEED RIGHTS WHERE THE POLICE EITHER HAVE NO
INTEREST IN PROSECUTING OR ARE WILLING TO FORGO SUCCESSFUL PROSECUTION
IN THE INTEREST OF SERVING SOME OTHER GOAL. 

PROPER ADJUDICATION OF CASES IN WHICH THE EXCLUSIONARY RULE IS
INVOKED DEMANDS A CONSTANT AWARENESS OF THESE LIMITATIONS.  THE
WHOLESALE HARASSMENT BY CERTAIN ELEMENTS OF THE POLICE COMMUNITY, OF
WHICH MINORITY GROUPS, PARTICULARLY NEGROES, FREQUENTLY COMPLAIN, /11/
WILL NOT BE STOPPED BY THE EXCLUSION OF ANY EVIDENCE FROM ANY CRIMINAL
TRIAL.  YET A RIGID AND UNTHINKING APPLICATION OF THE EXCLUSIONARY
RULE, IN FUTILE PROTEST AGAINST PRACTICES WHICH IT CAN NEVER BE USED
EFFECTIVELY TO CONTROL, MAY EXACT A HIGH TOOL IN HUMAN INJURY AND
FRUSTRATION OF EFFORTS TO PREVENT CRIME.  NO JUDICIAL OPINION CAN
COMPREHEND THE PROTEAN VARIETY OF THE STREET ENCOUNTER, AND WE CAN ONLY
JUDGE THE FACTS OF THE CASE BEFORE US.  NOTHING WE SAY TODAY IS TO BE
TAKEN AS INDICATING APPROVAL OF POLICE CONDUCT OUTSIDE THE LEGITIMATE
INVESTIGATIVE SPHERE.  UNDER OUR DECISION, COURTS STILL RETAIN THEIR
TRADITIONAL RESPONSIBILITY TO GUARD AGAINST POLICE CONDUCT WHICH IS
OVERBEARING OR HARASSING, OR WHICH TRENCHES UPON PERSONAL SECURITY
WITHOUT THE OBJECTIVE EVIDENTIARY JUSTIFICATION WHICH THE CONSTITUTION
REQUIRES.  WHEN SUCH CONDUCT IS IDENTIFIED, IT MUST BE CONDEMED BY THE
JUDICIARY AND ITS FRUITS MUST BE EXCLUDED FROM EVIDENCE IN CRIMINAL
TRIALS.  AND, OR COURSE, OUR APPROVAL OF LEGITIMATE AND RESTRAINED
INVESTIGATIVE CONDUCT UNDERTAKEN ON THE BASIS OF AMPLE FACTUAL
JUSTIFICATION SHOULD IN NO WAY DISCOURAGE THE EMPLOYMENT OF OTHER
REMEDIES THAN THE EXCLUSIONARY RULE TO CURTAIN ABUSES FOR WHICH THAT
SANCTION MAY PROVE INAPPROPRIATE. 

HAVING THUS ROUGHLY SKETCHED THE PERIMETERS OF THE CONSTITUTIONAL
DEBATE OVER THE LIMITS ON POLICE INVESTIGATIVE CONDUCT IN GENERAL AND
THE BACKGROUND AGAINST WHICH THIS CASE PRESENTS ITSELF, WE TURN OUR
ATTENTION TO THE QUITE NARROW QUESTION POSED BY THE FACTS BEFORE US:
WHETHER IT IS ALWAYS UNREASONABLE FOR A POLICEMAN TO SEIZE A PERSON AND
SUBJECT HIM TO A LIMITED SEARCH FOR WEAPONS UNLESS THERE IS PROBABLE
CAUSE FOR AN ARREST.  GIVEN THE NARROWNESS OF THIS QUESTION, WE HAVE NO
OCCASION TO CANVASS IN DETAIL THE CONSTITUTIONAL LIMITATIONS UPON THE
SCOPE OF A POLICEMAN'S POWER WHEN HE CONFRONTS A CITIZEN WITHOUT
PROBABLE CAUSE TO ARREST HIM. 

    II 

OUR FIRST TASK IS TO ESTABLISH AT WHAT POINT IN THIS ENCOUNTER THE
FOURTH AMENDMENT BECOMES RELEVANT.  THAT IS, WE MUST DECIDE WHETHER AND
WHEN OFFICER MCFADDEN "SEIZED" TERRY AND WHETHER AND WHEN HE CONDUCTED
A "SEARCH."  THERE IS SOME SUGGESTION IN THE USE OF SUCH TERMS AS
"STOP" AND "FRISK" THAT SUCH POLICE CONDUCT IS OUTSIDE THE PURVIEW OF
THE FOURTH AMENDMENT BECAUSE NEITHER ACTION RISES TO THE LEVEL OF A
"SEARCH" OR "SEIZURE" WITHIN THE MEANING OF THE CONSTITUTION.  /12/  WE
EMPHATICALLY REJECT THIS NOTION.  IT IS QUITE PLAIN THAT THE FOURTH
AMENDMENT GOVERNS "SEIZURES" OF THE PERSON WHICH DO NOT EVENTUATE IN A
TRIP TO THE STATION HOUSE AND PROSECUTION FOR CRIME-- "ARRESTS" IN
TRADITIONAL TERMINOLOGY.  IT MUST BE RECOGNIZED THAT WHENEVER A POLICE
OFFICER ACCOSTS AN INDIVIDUAL AND RESTRAINS HIS FREEDOM TO WALK AWAY,
HE HAD "SEIZED" THAT PERSON.  AND IT IS NOTHING LESS THAN SHEER TORTURE
OF THE ENGLISH LANGUAGE TO SUGGEST THAT A CAREFUL EXPLORATION OF THE
OUTER SURFACES OF A PERSON'S CLOTHING ALL OVER HIS OR HER BODY IN AN
ATTEMPT TO FIND WEAPONS IS NOT A "SEARCH9'  MOREOVER, IT IS SIMPLE
FANTASTIC TO URGE THAT SUCH A PROCEDURE PERFORMED IN PUBLIC BY A
POLICEMAN WHILE THE CITIZEN STANDS HELPLESS, PERHAPS FACING A WALL WITH
HIS HANDS RAISED, IS A "PETTY INDIGNITY."  /13/  IT IS A SERIOUS
INTRUSION UPON THE SANCTITY OF THE PERSON, WHICH MAY INFLICT GREAT
INDIGNITY AND AROUSE STRONG RESENTMENT, AND IT IS NOT TO BE UNDERTAKEN
LIGHTLY.  /14/ 

THE DANGER IN THE LOGIC WHICH PROCEEDS UPON DISTINCTIONS BETWEEN A
"STOP" AND AN "ARREST," OR "SEIZURE" OF THE PERSON, AND BETEEEN A
"FRISK" AND A "SEARCH" IS TWOFOLD.  IT SEEKS TO ISOLATE FROM
CONSTITUTIONAL SCRUTINY THE INITIAL STAGES OF THE CONTACT BETWEEN THE
POLICEMAN AND THE CITIZEN.  AND BY SUGGESTING A RIGID ALL-OR-NOTHING
MODEL OF JUSTIFICATION AND REGULATION UNDER THE AMDNEMENT, IT OBSCURES
THE UTILITY OF LIMITATIONS UPON THE SCOPE, AS WELL AS THE INITIATION,
OF POLICE ACTION AS A MEANS OF CONSTITUTIONAL REGULATION.  /15/  THIS
COURT HAS HELD IN THE PAST THAT A SEARCH WHICH IS REASONABLE AT TIS
INCEPTION MAY VIOLATE THE FOURTH AMENDMENT BY VIRTUE OF ITS INTOLERABLE
INTENSITY AND SCOPE.  KREMEN V. UNITED STATES, 353 U.S. 346 (1957); GO
BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344, 356-358 (1931); SEE
UNITED STATES V. DI RE, 332 U.S. 581, 586-587 (1948).  THE SCOPE OF THE
SEARCH MUST BE "STRICTLY TIED TO AND JUSTIFIED BY" THE CIRCUMSTANCES
WHICH RENDERED ITS INITIATION PERMISSIBLE.  WARDEN V. HAYDEN, 387 U.S.
294, 310 (1967) (MR. JUSTICE FORTAS, CONCURRING); SEE, E.G., PRESTON V.
UNITED STATES, 376 U.S. 364, 367-368 (1964); AGNELLO V. UNITED STATES,
269 U.S. 20, 30-31 (1925). 

THE DISTINCTIONS OF CLASSICAL "STOP-AND-FRISK" THEORY THUS SERVE TO
DIVERT ATTENTION FROM THE CENTRAL INQUIRY UNDER THE FOURTH AMENDMENT--
THE REASONABLENESS IN ALL THE CIRCUMSTANCES OF THE PARTICULAR
GOVERNMENTAL INVASION OF A CITIZEN'S PERSONAL SECURITY.  "SEARCH" AND
"SEIZURE" ARE NOT TALISMANS.  WE THEREFORE REJECT THE NOTIONS THAT THE
FOURTH AMENDMENT DOES NOT COME INTO PLAY AT ALL AS LIMITATION UPON
POLICE CONDUCT IF THE OFFICERS STOP SHORT OF SOMETHING CALLED A
"TECHNICAL ARREST" OR A "FULL-BLOWN SEARCH."     IN THIS CASE THERE CAN
BE NO QUESTION, THEN, THAT OFFICER MCFADDEN "SEIZED" PETITIONER AND
SUBJECTED HIM TO A "SEARCH" WHEN HE TOOK HOLD OF HIM AND PATTED DOWN
THE OUTER SURFACES OF HIS CLOTHING.  WE MUST DECIDE WHETHER AT THAT
POINT IT WAS REASONABLE FOR OFFICER MCFADDEN TO HAVE INTERFERED WITH
PETITIONER'S PERSONAL SECURITY AS HE DID.  /16/  AND IN DETERMINING
WHETHER THE SEIZURE AND SEARCH WERE "UNREASONABLE"  OUR INQUIRY IS A
DUAL ONE-- WHETHER THE OFFICER'S ACTION WAS JUSTIFIED AT ITS INCEPTION,
AND WHETHER IT WAS REASONABLY RELATED IN SCOPE TO THE CIRCUMSTANCES
WHICH JUSTIFIED THE INTERFERENCE IN THE FIRST PLACE. 

        III. 

IF THIS CASE INVOLVED POLICE CONDUCT SUBJECT TO THE WARRANT CLAUSE
OF THE FOURTH AMENDMENT, WE WOULD HAVE TO ASCERTAIN WHETHER "PROBABLE
CAUSE" EXISTED TO JUSTIFY THE SEARCH AND SEIZURE WHICH TOOK PLACE. 
HOWEVER, THAT IS NOT THE CASE.  WE DO NOT RETREAT FROM OUR HOLDINGS
THAT THE POLICE MUST, WHENEVER PRACTICABLE, OBTAIN ADVANCE JUDICIAL
APPROVAL OF SEARCHES AND SEIZURES THROUGH THE WARRANT PROCEDURE, SEE,
E.G., KATZ V. UNTIED STATES, 289 U.S. 347 (1967); BECK V. OHIO, 379
U.S. 89, 96 (1964); CHAPMAN V. UNITED STATES, 265 U.S. 610 (1961), OR
THAT IN MOST INSTANCES FAILURE TO COMPLY WITH THE WARRANT REQUIREMENT
CAN ONLY BE EXCUSED BY EXIGENT CIRCUMSTANCES, SEE, E.G., WARDEN V.
HAYDEN, 387 U.S. 294 (1967) (HOT PURSUIT); CF. PRESTON V. UNITED
STATES, 376 U.S. 364, 367-368 (1964).  BUT WE DEAL HERE WITH AN ENTIRE
RUBRIC OF POLICE CONDUCT-- NECESSARILY SWIFT ACTION PREDICATED UPON THE
ON-THE-SPOT OBSERVATIONS OF THE OFFICER ON THE BEAT-- WHICH
HISTORICALLY HAS NOT BEEN, AND AS A PRACTICAL MATTER COULD NOT BE,
SUBJECTED TO THE WARRANT PROCEDURE.  INSTEAD, THE CONDUCT INVOLVED IN
THIS CASE MUST BE TESTED BY THE FOURTH AMENDMENT'S GENERAL PROSCRIPTION
AGAINST UNREASONABLE SEARCHES AND SEIZURES.  /17/ 

NONETHELESS, THE NOTIONS WHICH UNDERLIE BOTH THE WARRANT PROCEDURE
AND THE REQUIREMENT OF PROBABLE CAUSE REMAIN FULLY RELEVANT IN THIS
CONTEST.  IN ORDER TO ASSESS THE REASONABLENESS OF OFFICER MCFADDEN'S
CONDUCT AS A GENERAL PROPOSITION, IT IS NECESSARY "FIRST TO FOCUS UPON
THE GOVERNMENTAL INTEREST WHICH ALLEGEDLY JUSTIFIES OFFICIAL INTRUSION
UPON THE CONSTITUTIONALLY PROTECTED INTERESTS OF THE PRIVATE CITIZEN,"
FOR THERE IS "NO READY TEST FOR DETERMINING REASONABLENESS OTHER THAN
BY BALANCING THE NEED TO SEARCH (OR SEIZE) AGAINST THE INVASION WHICH
THE SEARCH (OR SEIZURE) ENTAILS."  CAMARA V. MUNICIPAL COURT, 387 U.S.
523, 534-535, 536-537 (1967).  AND IN JUSTIFYING THE PARTICULAR
INTRUSION THE POLICE OFFICER MUST BE ABLE TO POINT TO SPECIFIC AND
ARTICULABLE FACTS WHICH, TAKEN TOGETHER WITH RATIONAL INFERENCES FROM
THOSE FACTS, REASONABLY WARRANT THAT INTRUSION.  /18/  THE SCHEME OF
THE FOURTH AMENDMENT BECOMES MEANINGFUL ONLY WHEN IT IS ASSURED THAT AT
SOME POINT THE CONDUCT OF THOSE CHARGED WITH ENFORCING THE LAWS CAN BE
SUBJECTED TO THE MORE DETACHED, NEUTRAL SCRUTINY OF A JUDGE WHO MUST
EVALUATE THE REASONABLENESS OF A PARTICULAR SEARCH OF SEIZURE IN LIGHT
OF THE PARTICULAR CIRCUMSTANCES.  /19/  AND IN MAKING THAT ASSESSMENT
IT IS IMPERATIVE THAT THE FACTS BE JUDGED AGAINST AN OBJECTIVE
STANDARD:  WOULD THE FACTS AVAILABLE TO THE OFFICER AT THE MOMENT OF
THE SEIZURE OR THE SEARCH "WARRANT A MAN OF REASONABLE CAUTION IN THE
BELIEF" THAT THE ACTION TAKEN WAS APPROPRIATE?  CF. CARROLL V. UNITED
STATES, 267 U.S. 132 (1925); BECK V. OHIO, 379 U.S. 89, 96-97 (1964). 
/20/  ANYTHING LESS WOULD INVITE INTRUSIONS UPON CONSTITUTIONALLY
GUARANTEED RIGHTS BASED ON NOTHING MORE SUBSTANTIAL THAN INARTICULATE
HUNCHES, A RESULT THIS COURT HAS CONSISTENTLY REFUSED TO SANCTION. 
SEE, E.G., BECK V. OHIO, SUPRA; RIOS V. UNITED STATES, 364 U.S. 253
(1960); HENRY V. UNITED STATES, 361 U.S. 98 (1959).  AND SIMPLE "'GOOD
FAITH ON THE PART OF THE ARRESTING OFFICER IS NOT ENOUGH.'  . . . IF
SUBJECTIVE GOOD FAITH ALONE WERE THE TEST, THE PROTECTIONS OF THE
FOURTH AMENDMENT WOULD EVAPORATE, AND THE PEOPLE WOULD BE 'SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS,'  ONLY IN THE DISCRETION OF
THE POLICE."  BECK V. OHIO, SUPRA, AT 97. 

APPLYING THESE PRINCIPLES TO THIS CASE, WE CONSIDER FIRST THE NATURE
AND EXTENT OF THE GOVERNMENTAL INTERESTS INVOLVED.  ONE GENERAL
INTEREST IS OF COURSE THAT OF EFFECTIVE CRIME PREVENTION AND DETECTION;
IT IS THIS INTEREST WHICH UNDERLIES THE ROCOGNITION THAT A POLICE
OFFICER MAY IN APPROPRIATE CIRCUMSTANCES AND IN AN APPROPRIATE MANNER
APPROACH A PERSON FOR PURPOSES OF INVESTIGATING POSSIBLY CRIMINAL
BEHAVIOR EVEN THOUGH THERE IS NO PROBABLE CAUSE TO MAKE AN ARREST.  IT
WAS THIS LEGITIMATE INVESTIGATIVE FUNCTION OFFICER MCFADDEN WAS
DISCHARGING WHEN HE DECIDED TO APPROACH PETITIONER AND HIS COMPANIONS. 
HE HAD OBSERVED TERRY, CHILTON, AND KATZ GO THROUGH A SERIES OF ACTS,
WACH OF THEM PERHAPS INNOCENT IN ITSELF, BUT WHICH TAKEN TOGETHER
WARRANTED FURTHER INVESTIGATION.  THERE IS NOTHING UNUSUAL IN TWO MEN
STANDING TOGETHER ON A STREET CORNER, PERHAPS WAITING FOR SOMEONE.  NOR
IS THERE ANYTHING SUSPICIOUS ABOUT PEOPLE IN SUCH CIRCUMSTANCES
STROLLING UP AND DOWN THE STREET, SINGLY OR IN PAIRS.  STORE WINDOBS,
MOREOVER, ARE MADE TO BE LOOKED IN.  BUT THE STORY IS QUITE DIFFERENT
WHERE, AS HERE, TWO MEN HOVER ABOUT A STREET CORNER FOR AN EXTENDED
PERIOD OF TIME, AT THE END OF WHICH IT BECOMES APPARENT THAT THEY ARE
NOT WAITING FOR ANYONE OR ANYTHING; WHERE THESE MEN PACE ALTERNATELY
ALONG AN IDENTICAL ROUTE, PAUSING TO STARE IN THE SAME STORE WINDOW
ROUGHLY 24 TIMES; WHERE EACH COMPLETION OF THIS ROUTE IS FOLLOWED
IMMEDIATELY BY A CONFERENCE BETWEEN THE TWO MEN ON THE CORNER; WHERE
THEY ARE JOINED IN ONE OF THESE CONFERENCES BY A THIRD MAN WHO LEAVES
SWIFTLY; AND WHERE THE TWO MEN FINALLY FOLLOW THE THIRD AND REJOIN HIM
A COUPLE OF BLOCKS AWAY.  IT WOULD HAVE BEEN POOR POLICE WORK INDEED
FOR AN OFFICER OF 30 YEARS' EXPERIENCE IN THE DETECTION OF THIEVERY
FROM STORES IN THIS SAME NEIGHBORHOOD TO HAVE FAILED TO INVESTIGATE
THIS BEHAVIOR FURTHER. 

THE CRUX OF THIS CASE, HOWEVER, IS NOT THE PROPRIETY OF OFFICER
MCFADDEN'S TAKING STEPS TO INVESTIGATE PETITIONER'S SUSPICIOUS
BEHAVIOR, BUT RATHER, WHETHER THERE WAS JUSTIFICATION FOR MCFADDEN'S
INVASION OF TERRY'S PERSONAL SECURITY BY SEARCHING HIM FOR WEAPONS IN
THE COURSE OF THAT INVESTIGATION.  WE ARE NOW CONCERNED WITH MORE THAN
THE GOVERNMENTAL INTEREST IN INVESTIGATING CRIME; IN ADDITION, THERE IS
THE MORE IMMEDIATE INTEREST OF THE POLICE OFFICER IN TAKING STEPS TO
ASSURE HIMSELF THAT THE PERSON WITH WHOM HE IS DEALING IS NOT ARMED
WITH A WEAPON THAT COULD UNEXPECTEDLY AND FATALLY BE USED AGAINST HIM. 
CERTAINLY IT WOULD BE UNREASONABLE TO REQUIRE THAT POLICE OFFICERS TAKE
UNNECESSARY RISKS IN THE PERFORMANCE OF THEIR DUTIES.  AMERICAN
CRIMINALS HAVE A LONG TRADITION OF ARMED FIOLENCE, AND EVERY YEAR IN
THIS COUNTRY MANY LAW ENFORCEMENT OFFICERS ARE KILLED IN THE LINE OF
DUTY, AND THOUSANDS ARE WOUNDED.  VIRTUALLY ALL OF THESE DEATHS AND A
SUBSTANTIAL PORTION OF THE INJURIES ARE INFLICTED WITH GUNS AND
KNIVES.  /21/ 

IN VIEW OF THESE FACTS, WE CANNOT BLIND OURSELVES TO THE NEED FOR
LAW ENFORCEMENT OFFICERS TO PROTECT THEMSELVES AND OTHER PROSPECTIVE
VICTIMS OF VIOLENCE IN SITUATIONS WHERE THEY MAY LACK PROBABLE CAUSE
FOR AN ARREST.  WHEN AN OFFICER IS JUSTIFIED IN BELIEVING THAT THE
INDIVIDUAL WHOSE SUSPICIOUS BEHAVIOR HE IS INVESTIGATING AT CLOSE RANGE
IS ARMED AND PRESENTLY DANGEROUS TO THE OFFICER OR TO OTHERS, IT WOULD
APPEAR TO BE CLEARLY UNREASONABLE TO DENY THE OFFICER THE POWER TO TAKE
NECESSARY MEASURES TO DETERMINE WHETHER THE PERSON IS IN FACT CARRYING
A WEAPON AND TO NEUTRALIZE THE THREAT OF PHYSICAL HARM. 

WE MUST STILL CONSIDER, HOWEVER, THE NATURE AND QUALITY OF THE
INTRUSTION ON INDIVIDUAL RIGHTS WHICH MUST BE ACCEPTED IF POLICE
OFFICERS ARE TO BE CONCEDED THE RIGHT TO SEARCH FOR WEAPONS IN
SITUATIONS WHERE PROBABLE CAUSE TO ARREST FOR CRIME IS LACKING.  EVEN A
LIMITED SEARCH OF THE OUTER CLOTHING FOR WEAPONS CONSTITUTES A SEVERE,
THOUGH BRIEF, INTRUSTION UPON CHERISHED PERSONAL SECURITY, AND IT MUST
SURELY BE AN ANNOYING, FRIGHTENING, AND PERHAPS HUMILIATING
EXPERIENCE.  PETITIONER CONTENDS THAT SUCH AN INTRUSION IS PERMISSIBLE
ONLY INCIDENT TO A LAWFUL ARREST, EITHER FOR A CRIME INVOLVING THE
POSSESSION OF WEAPONS OR FOR A CRIME THE COMMISSION OF WHICH LED THE
OFFICER TO INVESTIGATE IN THE FIRST PLACE.  HOWEVER, THIS ARGUMENT MUST
BE CLOSELY EXAMINED. 

PETITIONER DOES NOT ARGUE THAT A POLICE OFFICER SHOULD REFRAIN FROM
MAKING ANY INVESTIGATION OF SUSPICIOUS CIRCUMSTANCES UNTIL SUCH TIME AS
HE HAS PROBABLE CAUSE TO MAKE AN ARREST; NOR DOES HE DENY THAT POLICE
OFFICERS IN PROPERLY DISCHARGING THEIR INVESTIGATIVE FUNCTION MAY FIND
THEMSELVES CONFRONTING PERSONS WHO MIGHT WELL BE ARMED AND DANGEROUS. 
MOREOVER, HE DOES NOT SAY THAT AN OFFICER IS ALWAYS UNJUSTIFIED IN
SEARCHING A SUSPECT TO DISCOVER WEAPONS.  RATHER, HE SAYS IT IS
UNREASONABLE FOR THE POLICEMAN TO TAKE THAT STEP UNTIL SUCH TIME AS THE
SITUATION EVOLVES TO A POINT WHERE THERE IS PROBABLE CAUSE TO MAKE AN
ARREST.  WHEN THAT POINT HAS BEEN REACHED, PETITIONER WOULD CONCEDE THE
OFFICER'S RIGHT TO CONDUCT A SEARCH OF THE SUSPECT FOR WEAPONS, FRUITS
OR INSTRUMENTALITIES OF THE CRIME, OR "MERE" EVIDENCE, INCIDENT TO THE
ARREST. 

THERE ARE TWO WEAKNESSES IN THIS LINE OF REASONING, HOWEVER.  FIRST,
IT FAILS TO TAKE ACCOUNT OF TRADITIONAL LIMITATIONS UPON THE SCOPE OF
SEARCHES, AND THUS RECOGNIZES NO DISTINCTION IN PURPOSE, CHARACTER, AND
EXTENT BETWEEN A SEARCH INCIDENT TO AN ARREST AND A LIMITED SEARCH FOR
WEAPONS.  THE FORMER, ALTHOUGH JUSTIFIED IN PART BY THE ACKNOWLEDGE
NECESSITY TO PROTECT THE ARRESTING OFFICER FROM ASSUALT WITH A
CONCEALED WEAPON.  PRESTON V. UNITED STATES, 276 U.S. 364, 367 (1964),
IS ALSO JUSTIFIED ON OTHER GROUNDS, IBID., AND CAN THEREFORE INVOLVE A
RELATIVELY EXTENSIVE EXPLORATION OF THE PERSON.  A SEARCH FOR WEAPONS
IN THE ABSENCE OF PROBABLE CAUSE TO ARREST, HOWEVER, MUST, LIKE ANY
OTHER SEARCH, BE STRICTLY CIRCUMSCRIBED BY THE EXIGENCIES WHICH JUSTIFY
ITS INITIATION.  WARDEN V. HAYDEN, 387 U.S. 294, 310 (1967) (MR.
JUSTICE FORTAS, CONCURRING).  THUS IT MUST BE LIMITED TO THAT WHICH IS
NECESSARY FOR THE DISCOVERY OF WEAPONS WHICH MIGHT BE USED TO HARM THE
OFFICER OR OTHERS NEARBY, AND MAY REALISTICALLY BE CHARACTERIZED AS
SOMETHING LESS THAN A "FULL" SEARCH, EVEN THOUGH IT REMAINS A SERIOUS
INTRUSION. 

A SECOND, AND RELATED, OBJECTION TO PETITIONER'S ARGUMENT IS THAT IT
ASSUMES THAT THE LAW OF ARREST HAS ALREADY WORKED OUT THE BALANCE
BETWEEN THE PARTICULAR INTERESTS INVOLVED HERE-- THE NEUTRALIZATION OF
DANGER TO THE POLICEMAN IN THE INVESTIGATIVE CIRCUMSTANCE AND THE
SANCTITY OF THE INDIVIDUAL.  BUT THIS IS NOT SO.  AN ARREST IS A WHOLLY
DIFFERENT KIND OF INTRUSION UPON INDIVIDUAL FREEDOM FROM A LIMITED
SEARCH FOR WEAPONS, AND THE INTERESTS EACH IS DESIGNED TO SERVE ARE
LIKEWISE QUITE DIFFERENT.  AN ARREST IS THE INITIAL STAGE OF A CRIMINAL
PROSECUTION.  IT IS INTENDED TO VINDICATE SOCIETY'S INTEREST IN HAVING
ITS LAWS OBEYED, AND IT IS INEVITABLY ACCOMPANIED BY FUTURE
INTERFERENCE WITH THE INDIVIDUAL'S FREEDOM OF MOVEMENT, WHETHER OR NOT
TRIAL OR CONVICTION ULTIMATELY FOLLOWS.  /22/  THE PROTECTIVE SEARCH
FOR WEAPONS, ON THE OTHER HAND, CONSTITUTES A BRIEF, THOUGH FAR FROM
INCONSIDERABLE, INTRUSION UPON THE SANCTITY OF THE PERSON.  IT DOES NOT
FOLLOW THAT BECAUSE AN OFFICER MAY LAWFULLY ARREST A PERSON ONLY WHEN
HE IS APPRISED OF FACTS SUFFICIENT TO WARRANT A BELIEF THAT THE PERSON
HAS COMMITTED OR IS COMMITTING A CRIME, THE OFFICER IS EUQALLY
UNJUSTIFIED, ABSENT THAT KIND OF EVIDENCE, IN MAKING ANY INTRUSIONS
SHORT OF AN ARREST.  MOREOVER, A PERFECTLY REASONABLE APPREHENSION OF
DANGER MAY ARISE LONG BEFORE THE OFFICER IS POSSESSED OF ADEQUATE
INFORMATION TO JUSTIFY TAKING A PERSON INTO CUSTODY FOR THE PURPOSE OF
PROSECUTING HIM FOR A CRIME.  PETITIONER'S RELIANCE ON CASES WHICH HAVE
WORKED OUT STANDARDS OF REASONABLENESS WITH REGARD TO "SEIZURES"
CONSTITUTING ARRESTS AND SEARCHES INCIDENT THERETO IS THUS MISPLACED. 
IT ASSUMES THAT THE INTERESTS SOUGHT TO BE VINDICATED AND THE INVASIONS
OF PERSONAL SECURITY MAY BE EQUATED IN THE TWO CASES, AND THEREBY
IGNORES A VITAL ASPECT OF THE ANALYSIS OF THE REASONABLENESS OF
PARTICULAR TYPES OF CONDUCT UNDER THE FOURTH AMENDMENT.  SEE CAMARA V.
MUNICIPAL COURT, SUPRA. 

OUR EVALUATION OF THE PROBPER BALANCE THAT HAS TO BE STRUCK IN THIS
TYPE OF CASE LEADS US TO CONCLUDE THAT THERE MUST BE A NARROWLY DRAWN
AUTHORITY TO PERMIT A REASONABLE SEARCH FOR WEAPONS FOR THE PROTECTION
OF THE POLICE OFFICER, WHERE HE HAS REASON TO BELIEVE THAT HE IS
DEALING WITH AN ARMED AND DANGEROUS INDIVIDUAL, REGARDLESS OF WHETHER
HE HAS PROBABLE CAUSE TO ARREST THE INDIVIDUAL FOR A CRIME.  THE
OFFICER NEED NOT BE ABSOLUTELY CERTAIN THAT THE INDIVIDUAL IS ARMED;
THE ISSUE IS WHETHER A REASONABLY PRUDENT MAN IN THE CIRCUMSTANCES
WOULD BE WARRANTED IN THE BELIEF THAT HIS SAFETY OR THAT OF OTHERS WAS
IN DANGER.  CF. PBECK V. OHIO, 379 U.S. 89, 91 (1964); BRINEGAR V.
UNITED STATES, 338 U.S. 160, 174-176 (1949); STACEY V. EMERY, 97 U.S.
642, 645 (1878).  /23/  AND IN DETERMINING WHETHER THE OFFICER ACTED
REASONABLY IN SUCH CIRCUMSTANCES, DUE WEIGHT MUST BE GIVEN, NOT TO HIS
INCHOATE AND UNPARTICULARIZED SUSPICION OR "HUNCH," BUT TO THE SPECIFIC
REASONABLE INFERENCES WHICH HE IS ENTITLED TO DRAW FROM THE FACTS IN
LIGHT OF HIS EXPERIENCE.  CG. BRINEGAR V. UNITED STATES SUPRA.
IV. 

WE MUST NOW EXAMINE THE CONDUCT OF OFFICER MCFADDEN IN THIS CASE TO
DETERMINE WHETHER HIS SEARCH AND SEIZURE OF PETITIONER WERE REASONABLE,
BOTH AT THEIR INCEPTION AND AS CONDUCTED.  HE HAD OBSERVED TERRY,
TOGETHER WITH CHILTON AND ANOTHER MAN, ACTING IN A MANNER HE TOOK TO BE
PREFACE TO A "STICK-UP."  WE THINK ON THE FACTS AND CIRCUMSTANCES
OFFICER MCFADDEN DETAILED BEFORE THE TRIAL JUDGE A REASONABLY PRUDENT
MAN WOULD HAVE BEEN WARRANTED IN BELIEVING PETITIONER WAS ARMED AND
THUS PRESENTED A THREAT TO THE OFFICER'S SAFETY WHILE HE WAS
INVESTIGATING HIS SUSPICIOUS BEHAVIOR.  THE ACTIONS OF TERRY AND
CHILTON WERE CONSISTENT WITH MCFADDEN'S HYPOTHESIS THAT THESE MEN WERE
CONTEMPLATING A DAYLIGHT ROBBERY-- WHICH, IT IS REASONABLE TO ASSUME,
WOULD BE LIKELY TO INVOLVE THE USE OF WEAPONS-- AND NOTHING IN THEIR
CONDUCT FROM THE TIME HE FIRST NOTICED THEM UNTIL THE TIME HE
CONFRONTED THEM AND IDENTIFIED HIMSELF AS A POLICE OFFICER GAVE HIM
SUFFICIENT REASON TO NEGATE THAT HYPOTHESIS.  ALTHOUGH THE TRIO HAD
DEPARTED THE ORIGINAL SCHENE, THERE WAS NOTHING TO INDICATE ABANDONMENT
OF AN INTENT TO COMMIT A ROBBERY AT SOME POINT.  THUS, WHEN OFFICER
MCFADDEN APPROACHED THE THREE MEN GATHERED BEFORE THE DISPLAY WINDOW AT
ZUCKER'S STORE HE HAD OBSERVED ENOUGH TO MAKE IT QUITE REASONABLE TO
FEAR THAT THEY WERE ARMED; AND NOTHING IN THEIR RESPONSE TO HIS HAILING
THEM, IDENTIFYING HIMSLEF AS A POLICE OFFICER, AND ASKING THEIR NAMES
SERVED TO DISPEL THAT REASONABLE BELIEF.  WE CANNOT SAY HIS DECISION AT
THAT POINT TO SEIZE TERRY AND PAT HIS CLOTHING FOR WEAPONS WAS THE
PRODUCT OF A VOLATILE OR INVENTIVE IMAGINATION, OR WAS UNDERTAKEN
SIMPLY AS AN ACT OF HARASSMENT; THE RECORD EVIDENCES THE TEMPERED ACT
OF A POLICEMAN WHO IN THE COURSE OF AN INVESTIGATION HAD TO MAKE A
QUICK DECISION AS TO HOW TO PROTECT HIMSELF AND OTHERS FROM POSSIBLE
DANGER, AND TOOK LIMITED STEPS TO DO SO. 

THE MANNER IN WHICH THE SEIZURE AND SEARCH WERE CONDUCTED IS, OF
COURSE, AS VITAL A PART OF THE INQUIRY AS WHETHER THEY WERE WARRANTED
AT ALL.  THE FOURTH AMENDMENT PROCEEDS AS MUCH BY LIMITATIONS UPON THE
SCOPE OF GOVERNMENTAL ACTION AS BY IMPOSING PRECONDITIONS UPON ITS
INITIATION.  COMPARE KATZ V. UNITED STATES, 289 U.S. 347, 354-356
(1967).  THE ENTIRE DETERRENT PURPOSE OF THE RULE EXCLUDING EVIDENCE
SEIZED IN VIOLATION OF THE FOURTH AMENDMENT RESTS ON THE ASSUMPTION
THAT "LIMITATIONS UPON THE FRUIT TO BE GATHERED TEND TO LIMIT THE QUEST
ITSELF."  UNITED STATES V. POLLER, 43 F.2D 911, 914 (C.A.2D CIR. 1930);
SEE, E.G., LINKLETTER V. WALKER, 381 U.S. 618, 629-635 (1965); MAPP V.
OHIO, 367 U.S. 643 (1961); ELKINS V. UNITED STATES, 364 U.S. 206, 216
221 (1960).  THUS, EVIDENCE MAY NOT BE INTRODUCED IF IT WAS DISCOVERED
BY MEANS OF A SEIZURE AND SEARCH WHICH WERE NOT REASONABLY RELATED IN
SCOPE TO THE JUSTIFICATION FOR THEIR INITIATION.  WARDEN V. HAYDEN, 387
U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, CONCURRING). 

WE NEED NOT DEVELOP AT LENGTH IN THIS CASE, HOWEVER, THE LIMITATIONS
WHICH THE FOURTH AMENDMENT PLACES UPON A PROTECTIVE SEIZURE AND SEARCH
FOR WEAPONS.  THESE LIMITATIONS WILL HAVE TO BE DEVELOPED IN THE
CONCRETE FACTUAL CIRCUMSTANCES OF INDIVIDUAL CASES.  SEE SIBRON V. NEW
YORK, POST, P. 40, DECIDED TODAY.  SUFFICE IT TO NOTE THAT SUCH A
SEARCH, UNLIKE A SEARCH WITHOUT A WARRANT INCIDENT TO A LAWFUL ARREST,
IS NOT JUSTIFIED BY ANY NEED TO PREVENT THE DISAPPEARANCE OR
DESTRUCTION OF EVIDENCE OF CRIME.  SEE PRESTON V. UNITED STATES, 376
U.S. 364, 367 (1964).  THE SOLE JUSTIFICATION OF THE SEARCH IN THE
PRESENT SITUATION IS THE PROTECTION OF THE POLICE OFFICER AND OTHERS
NEARBY, AND IT MUST THEREFORE BE CONFINED IN SCOPE TO AN INTRUSION
REASONABLY DESIGNED TO DISCOVER GUNS, KNIVES, CLUBS, OR OTHER HIDDEN
INSTRUMENTS FOR THE ASSAULT OF THE POLICE OFFICER. 

THE SCOPE OF THE SEARCH IN THIS CASE PRESENTS NO SERIOUS PROBLEM IN
LIGHT OF THESE STANDARDS.  OFFICER MCFADDEN PATTED DOWN THE OUTER
CLOTHING OF PETITIONER AND HIS TWO COMPANIONS.  HE DID NOT PLACE HIS
HANDS IN THEIR POCKETS OR UNDER THE OUTER SURFACE OF THEIR GARMENTS
UNTIL HE HAD FELT WEAPONS, AND THEN HE MERELY REACHED FOR AND REMOVED
THE GUNS.  HE NEVER DID INVADE KATZ' PERSON BEYOND THE OUTER SURFACES
OF HIS CLOTHES, SINCE HE DISCOVERED NOTHING IN HIS PAT-DOWN WHICH MIGHT
HAVE BEEN A WEAPON.  OFFICER MCFADDEN CONFINED HIS SEARCH STRICTLY TO
WHAT WAS MINIMALLY NECESSARY TO LEARN WHETHER THE MEN WERE ARMED AND TO
DISARM THEM ONCE HE DISCOVERED THE WEAPONS.  HE DID NOT CONDUCT A
GENERAL EXPLORATORY SEARCH FOR WHATEVER EVIDENCE OF CRIMINAL ACTIVITY
HE MIGHT FIND. 

        V. 

WE CONCLUDE THAT THE REVOLVER SEZIED FROM TERRY WAS PROPERLY
ADMITTED IN EVIDENCE AGAINST HIM.  AT THE TIME HE SEIZED PETITIONER AND
SEARCHED HIM FOR WEAPONS, OFFICER MCFADDEN HAD REASONABLE GROUNDS TO
BELIEVE THAT PETITIONER WAS ARMED AND DANGEROUS, AND IT WAS NECESSARY
FOR THE PROTECTION OF HIMSELF AND OTHERS TO TAKE SWIFT MEASURES TO
DISCOVER THE TRUE FACTS AND NEUTRALIZE THE THREAT OF HARM IF IT
MATERIALIZED.  THE POLICEMAN CAREFULLY RESTRICTED HIS SEARCH TO WHAT
WAS APPROPRIATE TO THE DISCOVERY OF THE PARTICULAR ITEMS WHICH HE
SOUGHT.  EACH CASE OF THIS SORT WILL, OF COURSE, HAVE TO BE DECIDED ON
ITS OWN FACTS.  WE MERELY HOLD TODAY THAT WHERE A POLICE OFFICER
OBSERVES UNUSUAL CONDUCT WHICH LEADS HIM REASONABLY TO CONCLUDE IN
LIGHT OF HIS EXPERIENCE THAT CRIMINAL ACTIVITY MAY BE AFOOT AND THAT
THE PERSONS WITH WHOM HE IS DEALING MAY BE ARMED AND PRESENTLY
DANGEROUS, WHERE IN THE COURSE OF INVESTIGATING THIS BEHAVIOR HE
IDENTIFIES HIMSELF AS A POLICEMAN AND MAKES REASONABLE INQUIRIES, AND
WHERE NOTHING IN THE INITIAL STAGES OF THE ENCOUNTER SERVES TO DISPEL
HIS REASONABLE FEAR FOR HIS OWN OR OTHERS' SAFETY, HE IS ENTITLED FOR
THE PROTECTION OF HIMSELF AND OTHERS IN THE AREA TO CONDUCT A CAREFULLY
LIMITED SEARCH OF THE OUTER CLOTHING OF SUCH PERSONS IN AN ATTEMPT TO
DISCOVER WEAPONS WHICH MIGHT BE USED TO ASSAULT HIM.  SUCH A SEARCH IS
A REASONABLE SEARCH UNDER THE FOURTH AMENDMENT, AND ANY WEAPONS SEIZED
MAY PROPERLY BE INTRODUCED IN EVIDENCE AGAINST THE PERSON FROM WHOM
THEY WERE TAKEN. 

              AFFIRMED. 

/1/  OHIO REV. CODE SEC. 2923.01 (1953) PROVIDES IN PART THAT "(NO
PERSON SHALL CARRY A PISTOL, BOWIE KNIFE, DIRK, OR OTHER DANGEROUS
WEAPON CONCEALED ON OR ABOUT HIS PERSON."  AN EXCEPTION IS MADE FOR
PROPERLY AUTHORIZED LAW ENFORCEMENT OFFICERS. 

/2/  TERRY AND CHILTON WERE ARRESTED, INDICTED, TRIED, AND CONVICTED
TOGETHER.  THEY WERE REPRESENTED BY THE SAME ATTORNEY, AND THEY MADE A
JOINT MOTION TO SUPPRESS THE GUNS.  AFTER THE MOTION WAS DENIED,
EVIDENCE WAS TAKEN IN THE CASE AGAINST CHILTON.  THIS EVIDENCE
CONSISTED OF THE TESTIMONY OF THE ARRESTING OFFICER AND OF CHILTON.  IT
WAS THEN STIPULATED THAT THIS TESTIMONY WOULD BE APPLIED TO THE CASE
AGAINST TERRY, AND NO FURTHER EVIDENCE WAS INTRODUCED IN THAT CASE. 
THE TRIAL JUDGE CONSIDERED THE TWO CASES TOGETHER, RENDERED THE
DECISIONS AT THE SAME TIME AND SENTENCED THE TWO MEN AT THE SAME TIME. 
THEY PROSECUTED THEIR STATE COURT APPEALS TOGETHER THROUGH THE SAME
ATTORNEY, AND THEY PETITIONER THIS COURT FOR CERTIORARI TOGETHER. 
FOLLOWING THE GRANT OF THE WRIT UPON THIS JOINT PETITION, CHILTON
DIED.  THUS, ONLY TERRY'S CONVICTION IS HERE FOR REVIEW. 

/3/  BOTH THE TRIAL COURT AND THE OHIO COURT OF APPEALS IN THIS CASE
RELIED UPON SUCH A DISTINCTION.  STATE V. TERRY, 5 OHIO APP.2D 122, 125
130, 214 N.E.2D 114, 117-120 (1966).  SEE ALSO, E.G., PEOPLE V. RIVERA,
14 N.Y.2D 441, 201 N.E.2D 32, 252 N.Y.S.2D 458 (1964) CERT. DENIED, 379
U.S. 978 (1965); ASPEN, ARREST AND ARREST ALTERNATIVES:  RECENT TRENDS,
1966 U.ILL.L.F. 241, 249-254; WARNER, THE UNIFORM ARREST ACT, 28
VA.L.REV.  315 (1942); NOTE, STOP AND FRISK IN CALIFORNIA, 18 HASTINGS
L.J. 623, 629-632 (1967). 

/4/  PEOPLE V. RIVERA, SUPRA, N. 3, AT 447, 201 N.E.2D, AT 36, 252
N.Y.S.2D, AT 464. 

/5/  THERE THEORY IS WELL LAID OUT IN THE RIVERA OPINION: 

"(THE EVIDENCE NEEDED TO MAKE THE INQUIRY IS NOT OF THE SAME DEGREE
OF CONCLUSIVENESS AS THAT REQUIRED FOR AN ARREST.  THE STOPPING OF THE
INDIVIDUAL TO INQUIRE IS NOT AN ARREST AND THE GROUND UPON WHICH THE
POLICE MAY MAKE THE INQUIRY MAY BE LESS INCRIMINATING THAN THE GROUND
FOR AN ARREST FOR A CRIME KNOWN TO HAVE BEEN COMMITTED.  . . .

        .          .          .          . 

"AND AS THE RIGHT TO STOP AND INQUIRE IS TO BE JUSTIFIED FOR A CAUSE
LESS CONCLUSIVE THAN THAT WHICH WOULD SUSTAIN AN ARREST, SO THE RIGHT
TO FRISK MAY BE JUSTIFIED AS AN INCIDENT TO INQUIRY UPON GROUNDS OF
ELEMENTAL SAFETY AND PRECAUTION WHICH MIGHT NOT INITIALLY SUSTAIN A
SEARCH.  ULTIMATELY THE VALIDITY OF THE FRISK NARROWS DOWN TO WHETHER
THERE IS OR IS NOT A RIGHT BY THE POLICE TO TOUCH THE PERSON
QUESTIONED.  THE SENSE OF EXTERIOR TOUCH HERE INVOLVED IS NOT VERY FAR
DIFFERENT FROM THE SENSE OF SIGHT OR HEARING-- SENSES UPON WHICH POLICE
CUSTOMARILY ACT."  PEOPLE V. RIVERA, 14 N.Y.2D 441, 445, 447, 201
N.E.2D 32, 34, 35, 252 N.Y.S.2D 458, 461, 463 (1964), CERT. DENIED, 379
U.S. 978 (1965). 

/6/  SEE, E.G., FOOTE, THE FOURTH AMENDMENT:  OBSTACLE OR NECESSITY
IN THE LAW OF ARREST?, 51 J.CRIM.L.C.& P.S. 402 (1960). 

/7/  SEE N. 11, INFRA. 

/8/  BRIEF FOR RESPONDENT 2. 

/9/  SEE L. TIFFANY, D. MCINTYRE & D. ROTENBERG, DETECTION OF CRIME:
STOPPING AND QUESTIONING, SEARCH AND SEIZURE, ENCOURAGEMENT AND
ENTRAPMENT 18-56 (1967).  THIS SORT OF POLICE CONDUCT MAY, FOR EXAMPLE,
BE DESIGNED SIMPLY TO HELP AN INTOXICATED PERSON FIND HIS WAY HOME,
WITH NO INTENTION OF ARRESTING HIM UNLESS HE BECOMES OBSTEREROUS.  OR
THE POLICE MAY BE SEEKING TO MEDIATE A DOMESTIC QUARREL WHICH THREATENS
TO ERUPT INTO VIOLENCE.  THEY MAY ACCOST A WOMAN IN AN AREA KNOWN FOR
PROSTITUTION AS PART OF A HARASSMENT CAMPAIGN DESIGNED TO DRIVE
PROSTITUTES AWAY WITHOUT THE CONSIDERABLE DIFFICULTY INVOLVED IN
PROSECUTING THEM.  OR THEY MAY BE CONDUCTING A DRAGNET SEARCH OF ALL
TEENAGERS IN A PARTICULAR SECTION OF THE CITY FOR WEAPONS BECAUSE THEY
HAVE HEARD RUMORS OF AN IMPENDING GANG FIGHT. 

/10/  SEE TIFFANY, MCINTYRE & ROTENBERG, SUPRA, N. 9, AT 100-101;
COMMENT, 47 NW.U.L.REV.  493, 497-499 (1952). 

/11/  THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE FOUND THAT "(IN MANY COMMUNITIES, FILED
INTERROGATIONS ARE A MAJOR SOURCE OF FRICTION BETWEEN THE POLICE AND
MINORITY GROUPS."  PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:  THE POLICE 183 (1967). 
IT WAS REPORTED THAT THE FRICTION CAUSED BY "(MISUSE OF FIELD
INTERROGATIONS" INCREASES "AS MORE POLICE DEPARTMENTS ADOPT 'AGGRESSIVE
PATROL' IN WHICH OFFICERS ARE ENCOURAGED ROUTINELY TO STOP AND QUESTION
PERSONS ON THE STREET WHO ARE UNKNOWN TO THEM, WHO ARE SUSPICIOUS, OR
WHOSE PURPOSE FOR BEING ABROAD IS NOT READILY EVIDENT."  ID., AT 184. 
WHILE THE FREQUENCY WITH WHICH "FRISKING" FORMS A PART OF FIELD
INTERROGATION PRACTICE VARIES TREMENDOUSLY WITH THE LOCALE, THE
OBJECTIVE OF THE INTERROGATION, AND THE PARTICULAR OFFICER, SEE
TIFFANY, MCINTYRE & ROTENBERG, SUPRA, N. 9, AT 47-48, IT CANNOT HELP
BUT BE A SEVERELY EXACERBATING FACTOR IN POLICE-COMMUNITY TENSIONS. 
THIS IS PARTICULARLY TRUE IN SITUATIONS WHERE THE "STOP AND FRISK" OF
YOUTHS OR MINORITY GROUP MEMBERS IS "MOTIVATED BY THE OFFICERS'
PERCEIVED NEED TO MAINTAIN THE POWER IMAGE OF THE BEAT OFFICER, AN AIM
SOMETIMES ACCOMPLISHED BY HUMILIATING ANYONE WHO ATTEMPTS TO UNDERMINE
POLICE CONTROL OF THE STREETS."  IBID. 

/12/  IN THIS CASE, FOR EXAMPLE, THE OHIO COURT OF APPEALS STATED
THAT "WE MUST BE CAREFUL TO DISTINGUISH THAT THE 'FRISK' AUTHORIZED
HEREIN INCLUDES ONLY A 'FRISK' FOR A DANGEROUS WEAPON.  IT BY NO MEANS
AUTHORIZES A SEARCH FOR CONTRABAND, EVIDENTIARY MATERIAL, OR ANYTHING
ELSE IN THE ABSENCE OF REASONABLE GROUNDS TO ARREST.  SUCH A SEARCH IS
CONTROLLED BY THE REQUIREMENTS OF THE FOURTH AMENDMENT, AND PROBABLE
CAUSE IS ESSENTIAL."  STATE V. TERRY, 5 OHIO APP.2D 122, 130, 214
N.E.2D 114, 120 (1966).  SEE ALSO, E.G., ELLIS V. UNITED STATES, 105
U.S.APP.D.C. 86, 88, 264 F.2D 372, 374 (1959); COMMENT, 65 COL.L.REV. 
848, 860, AND N. 81 (1965). 

/13/  CONSIDER THE FOLLOWING APT DESCRIPTION: 

"(THE OFFICER MUST FEEL WITH SENSITIVE FINGERS EVERY PORTION OF THE
PRISONER'S BODY.  A THOROUGH SEARCH MUST BE MADE OF THE PRISONER'S ARMS
AND ARMPITS, WAISTLINE AND BACK, THE GROIN AND AREA ABOUT THE
TESTICLES, AND ENTIRE SURFACT OF THE LEGS DOWN TO THE FEET."  PRIAR &
MARTIN, SEARCHING AND DISARMING CRIMINALS, 45 J.CRIM.L.C.& P.S. 481
(1954). 

/14/  SEE N. 11, SUPRA, AND ACCOMPANYING TEXT. 

WE HAVE NOTED THAT THE ABUSIVE PRACTICES WHICH PLAY A MAJOR, THOUGH
BY NO MEANS EXCLUSIVE, ROLE IN CREATING THIS FRICTION ARE NOT
SUSCEPTIBLE OF CONTROL BY MEANS OF THE EXCLUSIONARY RULE, AND CANNOT
PROPERLY DICTATE OUR DECISION WITH RESPECT TO THE POWERS OF THE POLICE
IN GENUINE INVESTIGATIVE AND PREVENTIVE SITUATIONS.  HOWEVER, THE
DEGREE OF COMMUNITY RESENTMENT AROUSED BY PARTICULAR PRACTICES IS
CLEARLY RELEVANT TO AN ASSESSMENT OF THE QUALITY OF THE INTRUSION UPON
REASONABLE EXPECTATIONS OF PERSONAL SECURITY CAUSED BY THOSE
PRACTICES. 

/15/  THESE DANGERS ARE ILLUSTRATED IN PART BY THE COURSE OF
ADJUDICATION IN THE COURT OF APPEALS OF NEW YORK.  ALTHOUGH ITS FIRST
DECISION IN THIS AREA, PEOPLE V. RIVERA, 14 N.Y.2D 441, 201 N.E.2D 32,
252 N.Y.S.2D 458 (1964), CERT. DENIED, 379 U.S. 978 (1965), RESTED
SQUARELY ON THE NOTION THAT A "FRISK" WAS NOT A "SEARCH," SEE NN. 3-5,
SUPRA, IT WAS COMPELLED TO RECOGNIZE IN PEOPLE V. TAGGART, 20 N.Y.2D
335, 342, 229 N.E.2D 581, 586, 283 N.Y.S.2D 1, 8 (1967), THAT WHAT IS
HAD ACTUALLY AUTHORIZED IN RIVERA AND SUBSEQUENT DECISIONS, SEE, E.G.,
PEOLE V. PUBACH, 15 N.Y.2D 65, 204 N.E.2D 176, 255 N.Y.S.2D 833 (1964),
CERT. DENIED, 380 U.S. 936 (1965), WAS A "SEARCH" UPON LESS THAN
PROBABLE CAUSE.  HOWEVER, IN ACKNOWLEDGING THAT NO VALID DISTINCTION
COULD BE MAINTAINED ON THE BASIS OF ITS CASES, THE COURT OF APPEALS
CONTINUED TO DISTINGUISH BETWEEN THE TWO IN THEORY.  IT STILL DEFINED
"SEARCH" AS IT HAD IN RIVERA-- AS AN ESSENTIALLY UNLIMITED EXAMINATION
OF THE PERSON FOR ANY AND ALL SEIZABLE ITEMS-- AND MERELY NOTED THAT
THE CASES HAD UPHELD POLICE INTRUSIONS WHICH WENT FAR BEYOND THE
ORIGINAL LIMITED CONCEPTION OF A "FRISK."  THUS, PRINCIPALLY BECAUSE IT
IT FAILED TO CONSIDER LIMITATIONS UPON THE SCOPE OF SEARCHES IN
INDIVIDUAL CASES AS A POTENTIAL MODE OF REGULATION, THE COURT OF
APPEALS IN THREE SHORT YEARS ARRIVED AT THE POSITION THAT THE
CONSTITUTION MUST, IN THE NAME OF NECESSITY, BE HELD TO PERMIT
UNRESTRAINED RUMMAGING ABOUT A PERSON AND HIS EFFECTS UPON MERE
SUSPICION.  IT DID APPARENTLY LIMIT ITS HOLDING TO "CASES INVOLVING
SERIOUS PERSONAL INJURY OR GRAVE IRREPARABLE PROPERTY DAMAGE," THUS
EXCLUDING THOSE INVOLVING "THE ENFORCEMENT OF SUMPTUARY LAWS, SUCH AS
GAMBLING, AND LAWS OF LIMITED PUBLIC CONSEQUENCE, SUCH AS NARCOTICS
VIOLATIONS, PROSTITUTION, LARCENIES OF THE ORDINARY KIND, AND THE
LIKE."  PEOPLE V. TAGGART, SUPRA, AT 340, 214 N.E.2D, AT 584, 283
N.Y.S.2D, AT 6. 

IN OUR VIEW THE SOUNDER COURSE IS TO RECOGNIZE THAT THE FOURTH
AMENDMENT GOVERNS ALL INTRUSIONS BY AGENTS OF THE PUBLIC UPON PERSONAL
SECURITY, AND TO MAKE THE SCOPE OF THE PARTICULAR INTRUSION, IN LIGHT
OF ALL THE EXIGENCIES OF THE CASE, A CENTRAL ELEMENT IN THE ANALYSIS OF
REASONABLENESS.  CF. BRINEGAR V. UNITED STATES, 338 U.S. 160, 183
(1949) (MR. JUSTICE JACKSON, DISSENTING).  COMPARE CAMARA V. MUNICPAL
COURT, 387 U.S. 523, 537 (1967).  THIS SEEMS PREFERABLE TO AN APPROACH
WHICH ATTRIBUTES TOO MUCH SIGNIFICANCE TO AN OVERLY TECHNICAL
DEFINITION OF "SEARCH," AND WHICH TURNS IN PART UPON A JUDGE-MADE
HIERARCHY OF LEGISLATIVE ENACTMENTS IN THE CRIMINAL SPHERE.  FOCUSING
THE INQUIRY SQUARELY ON THE DANGERS AND DEMANDS OF THE PARTICULAR
SITUATION ALSO SEEMS MORE LIKELY TO PRODUCE RULES WHICH ARE
INTELLIGIBLE TO THE POLICE AND THE PUBLIC ALIKE THAN REQUIRING THE
OFFICER IN THE HEAT OF AN UNFOLDING ENCOUNTER ON THE STREET TO MAKE A
JUDGMENT AS TO WHICH LAWS ARE "OF LIMITED PUBLIC CONSEQUENCE." 

/16/  WE THUS DECIDE NOTHING TODAY CONCERNING THE CONSTITUTIONAL
PROPRIETY OF AN INVESTIGATIVE "SEIZURE" UPON LESS THAN PROBABLE CAUSE
FOR PURPOSES OF "DETENTION" AND/OR INTERROGATION.  OBVIOUSLY, NOT ALL
PERSONAL INTERCOURSE BETWEEN POLICEMEN AND CITIZENS INVOLVES "SEIZURES"
OF PERSONS.  ONLY WHEN THE OFFICER, BY MEANS OF PHYSICAL FORCE OR SHOW
OF AUTHORITY, HAS IN SOME WAY RESTRAINED THE LIBERTY OF A CITIZEN MAY
WE CONCLUDE THAT A "SEIZURE" HAS OCCURRED.  WE CANNOT TELL WITH ANY
CERTAINTY UPON THIS RECORD WHETHER ANY SUCH "SEIZURE" TOOK PLACE HERE
PRIOR TO OFFICER MCFADDEN'S INITIATION OF PHYSICAL CONTACT FOR PURPOSES
OF SEARCHING TERRY FOR WEAPONS, AND WE THUS MAY ASSUME THAT UP TO THAT
POINT NO INTRUSION UPON CONSTITUTIONALLY PROTECTED RIGHTS HAD
OCCURRED. 

/17/  SEE GENERALLY LEAGRE, THE FOURTH AMENDMENT AND THE LAW OF
ARREST, 54 J.CRIM.L.C.& P.S. 393, 396-403 (1963). 

/18/  THIS DEMAND FOR SPECIFICITY IN THE INFORMATION UPON WHICH
POLICE ACTION IS PREDICATED IS THE CENTRAL TEACHING OF THIS COURT'S
FOURTH AMENDMENT JURISPRUDENCE.  SEE BACK V. OHIO, 379 U.S. 89, 96-97
(1964); KER V. CALIFORNIA, 374 U.S. 23, 34-37 (1963); WONG SUN V.
UNITED STATES, 271 U.S. 471, 479-484 (1963); RIOS V. UNITED STATES, 364
U.S. 253, 261-262 (1960); HENRY V. UNITED STATES, 361 U.S. 98, 100-102
(1959); DRAPER V. UNITED STATES, 358 U.S. 307, 312-314 (1959); BRINEGAR
V. UNITED STATES, 338 U.S. 160, 175-178 (1949); JOHNSON V. UNITED
STATES, 333 U.S. 10, 15-17 (1948); UNITED STATES V. DI RE, 332 U.S.
581, 593-595 (1948); HUSTY V. UNITED STATES, 282 U.S. 694, 700-701
(1931); DUMBRA V. UNITED STATES, 268 U.S. 435, 441 (1925); CARROLL V.
UNITED STATES, 267 U.S. 132, 159-162 (1925); STACEY V. EMERY, 97 U.S.
642, 645 (1878). 

/19/  SEE, E.G., KATZ V. UNITED STATES, 389 U.S. 347, 354 357
(1967); BERGER V. NEW YORK, 388 U.S. 41, 54-60 (1967); JOHNSON V.
UNTIED STATES, 333 U.S. 10, 13-15 (1948); CF. WONG SUN V. UNITED
STATES, 371 U.S. 471, 479-480 (1963).  SEE ALSO AGUILAR V. TEXAS, 378
U.S. 108, 110-115 (1964). 

/20/  SEE ALSO CASES CITED IN N. 18, SUPRA. 

/21/  FIFTY-SEVEN LAW ENFORCEMENT OFFICERS WERE KILLED IN THE LINE
OF DUTY IN THIS COUNTRY IN 1966, BRINGING THE TOTAL TO 335 FOR THE
SEVEN-YEAR PERIOD BEGINNING WITH 1960.  ALSO IN 1966, THERE WERE 23,851
ASSAULTS ON POLICE OFFICERS, 9,113 OF WHICH RESULTED IN INJURIES TO THE
POLICEMEN.  FIFTY-FIVE OF THE 57 OFFICERS KILLED IN 1966 DIED FROM
GUNSHOT WOUNDS, 41 OF THEM INFLICTED BY HANDGUNS EASILY SECRETED ABOUT
THE PERSON.  THE REMAINING TWO MURDERS WERE PERPETRATED BY KNIVES.  SEE
FEDERAL BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS FOR THE UNITED
STATES-- 1966, AT 45-48, 152 AND TABLE 51. 

THE EASY AVAILABILITY OF FIREARMS TO POTENTIAL CRIMINALS IN THIS
COUNTRY IS WELL KNOWN AND HAS PROVOKED MUCH DEBATE.  SEE, E.G.,
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 239-243 (1967). 
WHATEVER THE MERITS OF GUN-CONTROL PROPOSALS, THIS FACT IS RELEVANT TO
AN ASSESSMENT OF THE NEED FOR SOME FORM OF SELF-PROTECTION SEARCH
POWER. 

/22/  SEE GENERALLY W. LAFAVE, ARREST-- THE DECISION TO TAKE A
SUSPECT INTO CUSTODY 1-13 (1965). 

/23/  SEE ALSO CASES CITED IN N. 18, SUPRA. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND THE OPINION EXCEPT
WHERE THE OPINION QUOTES FROM AND RELIES UPON THIS COURT'S OPINION IN
KATZ V. UNITED STATES AND THE CONCURRING OPINION IN WARDEN V. HAYDEN. 

MR. JUSTICE HARLAN, CONCURRING. 

WHILE I UNRESERVEDLY AGREE WITH THE COURT'S ULTIMATE HOLDING IN THIS
CASE, I AM CONSTRAINED TO FILL IN A FEW GAPS, AS I SEE THEM, IN ITS
OPINION.  I DO THIS BECAUSE WHAT IS SAID BY THIS COURT TODAY WILL SERVE
AS INITIAL GUIDELINES FOR LAW ENFORCEMENT AUTHORITIES AND COURTS
THROUGHOUT THE LAND AS THIS IMPORTANT NEW FIELD OF LAW DEVELOPS. 

A POLICE OFFICER'S RIGHT TO MAKE AN ON-THE-STREET "STOP" AND AN
ACCOMPANYING "FRISK" FOR WEAPONS IS OF COURSE BOUNDED BY THE
PROTECTIONS AFFORDED BY THE FOURTH AND FOURTEENTH AMENDMENTS.  THE
COURT HOLDS, AND I AGREE, THAT WHILE THE RIGHT DOES NOT DEPEND UPON
POSSESSION BY THE OFFICER OF A VALID WARRANT, NOR UPON THE EXISTENCE OF
PROBABLE CAUSE, SUCH ACTIVITIES MUST BE REASONABLE UNDER THE
CIRCUMSTANCES AS THE OFFICER CREDIBLY RELATES THEM IN COURT.  SINCE THE
QUESTION IN THIS AND MOST CASES IS WHETHER EVIDENCE PRODUCED BY A FRISK
IS ADMISSIBLE, THE PROBLEM IS TO DETERMINE WHAT MAKES A FRISK
REASONABLE. 

IF THE STATE OF OHIO WERE TO PROVIDE THAT POLICE OFFICERS COULD, ON
ARTICULABLE SUSPICION LESS THAN PROBABLE CAUSE, FORCIBLY FRISK AND
DISARM PERSONS THOUGHT TO BE CARRYING CONCEALED WEAPONS, I WOULD HAVE
LITTLE DOUBT THAT ACTION TAKEN PURSUANT TO SUCH AUTHORITY COULD BE
CONSTITUTIONALLY REASONABLE.  CONCEALED WEAPONS CREATE AN IMMEDIATE AND
SEVERE DANGER TO THE PUBLIC, AND THOUGH THAT DANGER MIGHT NOT WARRANT
ROUTINE GENERAL WEAPONS CHECKS, IT COULD WELL WARRANT ACTION ON LESS
THAN A "PROBABILITY."  I MENTION THIS LINE OF ANALYSIS BECAUSE I THINK
IT VITAL TO POINT OUT THAT IT CANNOT BE APPLIED IN THIS CASE.  ON THE
RECORD BEFORE US OHIO HAS NOT CLOTHED ITS POLICEMEN WITH ROUTINE
AUTHORITY TO FRISK AND DISARM ON SUSPICION; IN THE ABSENCE OF STATE
AUTHORITY, POLICEMEN HAVE NO MORE RIGHT TO "PAT DOWN" THE OUTER
CLOTHING OF PASSERS-BY, OR OF PERSONS TO WHOM THEY ADDRESS CASUAL
QUESTIONS, THAN DOES ANY OTHER CITIZEN.  CONSEQUENTLY, THE OHIO COURTS
DID NOT REST THE CONSTITUTIONALITY OF THIS FRISK UPON ANY GENERAL
AUTHORITY IN OFFICER MCFADDEN TO TAKE REASONABLE STEPS TO PROTECT THE
CITIZENRY, INCLUDING HIMSELF, FROM DANGEROUS WEAPONS. 

THE STATE COURTS HELD, INSTEAD, THAT WHEN AN OFFICER IS LAWFULLY
CONFRONTING A POSSIBLY HOSTILE PERSON IN THE LINE OF DUTY HE HAS A
RIGHT, SPRINGING ONLY FROM THE NECESSITY OF THE SITUATION AND NOT FROM
ANY BROADER RIGHT TO DISARM, TO FRISK FOR HIS OWN PROTECTION.  THIS
HOLDING, WITH WHICH I AGREE AND WITH WHICH I THINK THE COURT AGREES,
OFFERS THE ONLY SATISFACTORY BASIS I CAN THINK OF FOR AFFIRMING THIS
CONVICTION.  THE HOLDING HAS, HOWEVER, TWO LOGICAL COROLLARIES THAT I
DO NOT THINK THE COURT HAS FULLY EXPRESSED. 

IN THE FIRST PLACE, IF THE FRISK IS JUSTIFIED IN ORDER TO PROTECT
THE OFFICER DURING AN ENCOUNTER WITH A CITIZEN, THE OFFICER MUST FIRST
HAVE CONSTITUTIONAL GROUNDS TO INSIST ON AN ENCOUNTER, TO MAKE A
FORCIBLE STOP.  ANY PERSON, INCLUDING A POLICEMAN, IS AT LIBERTY TO
AVOID A PERSON HE CONSIDERS DANGEROUS.  IF AND WHEN A POLICEMAN HAS A
RIGHT INSTEAD TO DISARM SUCH A PERSON FOR HIS OWN PROTECTION, HE MUST
FIRST HAVE A RIGHT NOT TO AVOID HIM BUT TO BE IN HIS PRESENCE.  THAT
RIGHT MUST BE MORE THAN THE LIBERTY (AGAIN, POSSESSED BY EVERY CITIZEN)
TO ADDRESS QUESTIONS TO OTHER PERSONS, FOR ORDINARILY THE PERSON
ADDRESSED HAS AN EQUAL RIGHT TO IGNORE HIS INTERROGATOR AND WALK AWAY;
HE CERTAINLY NEED NOT SUBMIT TO A FRISK FOR THE QUESTIONER'S
PROTECTION.  I WOULD MAKE IT PERFECTLY CLEAR THAT THE RIGHT TO FRISK IN
THIS CASE DEPENDS UPON THE REASONABLENESS OF A FORCIBLE STOP TO
INVESTIGATE SUSPECTED CRIME. 

WHERE SUCH A STOP IS REASONABLE, HOWEVER, THE RIGHT TO FRISK MUST BE
IMMEDIATE AND AUTOMATIC IF THE REASON FOR THE STOP IS, AS HERE, AN
ARTICULABLE SUSPICION OF A CRIME OF VIOLENCE.  JUST AS A FULL SEARCH
INCIDENT TO A LAWFUL ARREST REQUIRES NO ADDITIONAL JUSTIFICATION, A
LIMITED FRISK INCIDENT TO A LAWFUL STOP MUST OFTEN BE RAPID AND
ROUTINE.  THERE IS NO REASON WHY AN OFFICER, RIGHTFULLY BUT FORCIBLY
CONFRONTING A PERSON SUSPECTED OF A SERIOUS CRIME, SHOULD HAVE TO ASK
ONE QUESTION AND TAKE THE RIST THAT THE ANSWER MIGHT BE A BULLET. 

THE FACTS OF THIS CASE ARE ILLUSTRATIVE OF A PROPER STOP AND AN
INCIDENT FRISK.  OFFICER MCFADDEN HAD NO PROBABLE CAUSE TO ARREST TERRY
FOR ANYTHING, BUT HE HAD OBSERVED CIRCUMSTANCES THAT WOULD REASONABLY
LEAD AN EXPERIENCED, PRUDENT POLICEMAN TO SUSPECT THAT TERRY WAS ABOUT
TO ENGAGE IN BURGLARY OR ROBBERY.  HIS JUSTIFIABLE SUSPICION AFFORDED A
PROPER CONSTITUTIONAL BASIS FOR ACCOSTING TERRY, RESTRAINING HIS
LIBERTY OF MOVEMENT BRIEFLY, AND ADDRESSING QUESTIONS TO HIM, AND
OFFICER MCFADDEN DID SO.  WHEN HE DID, HE HAD NO REASON WHATEVER TO
SUPPOSE THAT TERRY MIGHT BE ARMED, APART FROM THE FACT THAT HE
SUSPECTED HIM OF PLANNING A VIOLENT CRIME.  MCFADDEN ASKED TERRY HIS
NAME, TO WHICH TERRY "MUMBLED SOMETHING."  WHEREUPON MCFADDEN, WITHOUT
ASKING TERRY TO SPEAK LOUDER AND WITHOUT GIVING HIM ANY CHANCE TO
EXPLAIN HIS PRESENCE OR HIS ACTIONS, FORCIBLY FRISKED HIM. 

I WOULD AFFIRM THIS CONVICTION FOR WHAT I BELIEVE TO BE THE SAME
REASONS THE COURT RELIES ON.  I WOULD, HOWEVER, MAKE EXPLICIT WHAT I
THINK IS IMPLICIT IN AFFIRMANCE ON THE PRESENT FACTS.  OFFICER
MCFADDEN'S RIGHT TO INTERRUPT TERRY'S FREEDOM OF MOVEMENT AND INVADE
HIS PRIVACY AROSE ONLY BECAUSE CIRCUMSTANCES WARRANTED FORCING AN
ENCOUNTER WITH TERRY IN AN EFFORT TO PREVENT OR INVESTIGATE A CRIME. 
ONCE THAT FORCED ENCOUNTER WAS JUSTIFIED, HOWEVER, THE OFFICER'S RIGHT
TO TAKE SUITABLE MEASURES FOR HIS OWN SAFETY FOLLOWED AUTOMATICALLY. 

UPON THE FOREGOING PREMISES, I JOIN THE OPINION OF THE COURT. 

MR. JUSTICE WHITE, CONCURRING. 

I JOIN THE OPINION OF THE COURT, RESERVING JUDGMENT, HOWEVER, ON
SOME OF THE COURT'S GENERAL REMARKS ABOUT THE SCOPE AND PURPOSE OF THE
EXCLUSIONARY RULE WHICH THE COURT HAS FASHIONED IN THE PROCESS OF
ENFORCING THE FOURTH AMENDMENT. 

ALSO, ALTHOUGH THE COURT PUTS THE MATTER ASIDE IN THE CONTEXT OF
THIS CASE, I THINK AN ADDITIONAL WORD IS IN ORDER CONCERNING THE MATTER
OF INTERROGATION DURING AN INVESTIGATIVE STOP.  THERE IS NOTHING IN THE
CONSTITUTION WHICH PREVENTS A POLICEMAN FROM ADDRESSING QUESTIONS TO
ANYONE ON THE STREETS.  ABSENT SPECIAL CIRCUMSTNACES, THE PERSON
APPROACHED MAY NOT BE DETAINED OR FRISKED BUT MAY REFUSE TO COOPERATE
AND GO ON HIS WAY.  HOWEVER, GIVEN THE PROPER CIRCUMSTANCES, SUCH AS
THOSE IN THIS CASE, IT SEEMS TO ME THE PERSON MAY BE BRIEFLY DETAINED
AGAINST HIS WILL WHILE PERTINENT QUESTIONS ARE DIRECTED TO HIM.  OF
COURSE, THE PERSON STOPPED IS NOT OBLIGED TO ANSWER, ANSWERS MAY NOT BE
COMPELLED, AND REFUSAL TO ANSWER FURNISHES NO BASIS FOR AN ARREST,
ALTHOUGH IT MAY ALERT THE OFFICER TO THE NEED FOR CONTINUED
OBSERVATION.  IN MY VIEW, IT IS TEMPORARY DETENTION, WARRANTED BY THE
CIRCUMSTANCES, WHICH CHIEFLY JUSTIFIES THE PROTECTIVE FRISK FOR
WEAPONS.  PERHAPS THE FRISK ITSELF, WHERE PROPER, WILL HAVE BENEFICIAL
RESULTS WHETHER QUESTIONS ARE ASKED OR NOT.  IF WEAPONS ARE FOUND, AN
ARREST WILL FOLLOW.  IF NONE ARE FOUND, THE FRISK MAY NEVERTHELESS
SERVE PREVENTIVE ENDS BECAUSE OF ITS UNMISTAKABLE MESSAGE THAT
SUSPICION HAS BEEN AROUSED.  BUT IF THE INVESTIGATIVE STOP IS
SUSTAINABLE AT ALL, CONSTITUTIONAL RIGHTS ARE NOT NECESSARILY VIOLATED
IF PERTINENT QUESTIONS ARE ASKED AND THE PERSON IS RESTRAINED BRIEFLY
IN THE PROCESS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE THAT PETITIONER WAS "SEIZED" WITHIN THE MEANING OF THE
FOURTH AMENDMENT.  I ALSO AGREE THAT FRISKING PETITIONER AND HIS
COMPANIONS FOR GUNS WAS A "SEARCH.'  BUT IT IS A MYSTERY HOW THAT
"SEARCH" AND THAT "SEIZURE" CAN BE CONSTITUTIONAL BY FOURTH AMENDMENT
STANDARDS, UNLESS THERE WAS "PROBABLE CAUSE"  /1/  TO BELIEVE THAT (1)
A CRIME HAD BEEN COMMITTED OR (2) A CRIME WAS IN THE PROCESS OF BEING
COMMITTED OR (3) A CRIME WAS ABOUT TO BE COMMITTED. 

THE OPINION OF THE COURT DISCLAIMS THE EXISTENCE OF "PROBABLE
CAUSE."  IF LOITERING WERE IN ISSUE AND THAT WAS THE OFFENSE CHARGED,
THERE WOULD BE "PROBABLE CAUSE" SHOWN.  BUT THE CRIME HERE IS CARRYING
CONCEALED WEAPONS:  /2/  AND THERE IS NO BASIS FOR CONCLUDING THAT THE
OFFICER HAD "PROBABLE CAUSE" FOR BELIEVING THAT THAT CRIME WAS BEING
COMMITTED.  HAD A WARRANT BEEN SOUGHT, A MAGISTRATE WOULD, THEREFORE,
HAVE BEEN UNAUTHORIZED TO ISSUE ONE, FOR HE CAN ACT ONLY IF THERE IS A
SHOWING OF "PROBABLE CAUSE."  WE HOLD TODAY THAT THE POLICE HAVE
GREATER AUTHORITY TO MAKE A "SEIZURE"  AND CONDUCT A "SEARCH" THAN A
JUDGE HAS TO AUTHORIZE SUCH ACTION.  WE HAVE SAID PRECISELY THE
OPPOSITE OVER AND OVER AGAIN.  /3/     IN OTHER WORDS, POLICE OFFICERS
UP TO TODAY HAVE BEEN PERMITTED TO EFFECT ARRESTS OR SEARCHES WITHOUT
WARRANTS ONLY WHEN THE FACTS WITHIN THEIR PERSONAL KNOWLEDGE WOULD
SATISFY THE CONSTITUTIONAL STANDARD OF PROBABLE CAUSE.  AT THE TIME OF
THEIR "SEIZURE" WITHOUT A WARRANT THEY MUST POSSESS FACTS CONCERNING
THE PERSON ARRESTED THAT WOULD HAVE SATISFIED A MAGISTRATE THAT
"PROBABLE CAUSE" WAS INDEED PRESENT.  THE TERM "PROBABLE CAUSE" RINGS A
BELL OF CERTAINTY THAT IS NOT SOUNDED BY PHRASES SUCH AS "REASONABLE
SUSPICION."  MOREOVER, THE MEANING OF "PROBABLE CAUSE" IS DEEPLY
IMBEDDED IN OUR CONSTITUTIONAL HISTORY.  AS WE STATED IN HENRY V.
UNITED STATES, 361 U.S. 98, 100-102: 

"THE REQUIREMENT OF PROBABLE CAUSE HAS ROOTS THAT ARE DEEP IN

  OUR HISTORY.  THE GENERAL WARRANT, IN WHICH THE NAME OF THE

  PERSON TO BE ARRESTED WAS LEFT BLANK, AND THE WRITS OF

  ASSISTANCE, AGAINST WHICH JAMES OTIS INVEIGHED, BOTH PERPETUATED

  THE OPPRESSIVE PRACTICE OF ALLOWING THE POLICE TO ARREST AND

  SEARCH ON SUSPICION.  POLICE CONTROL TOOK THE PLACE OF JUDICIAL

  CONTROL, SINCE NO SHOWING OF 'PROBABLE CAUSE' BEFORE A MAGISTRATE

  WAS REQUIRED. 

      .          .          .          . 

     "THAT PHILOSOPHY (REBELLING AGAINST THESE PRACTICES) LATER WAS

  REFLECTED IN THE FOURTH AMENDMENT.  AND AS THE EARLY AMERICAN

  DECISIONS BOTH BEFORE AND IMMEDIATELY AFTER ITS ADOPTION SHOW,

  COMMON RUMOR OR REPORT, SUSPICION, OR EVEN 'STRONG REASON TO

  SUSPECT' WAS NOT ADEQUATE TO SUPPORT A WARRANT FOR ARREST.  AND

  THAT PRINCIPLE HAS SURVIVED TO THIS DAY.  . . . 

     " . . . IT IS IMPORTANT, WE THINK THAT THIS REQUIREMENT (OF

  PROBABLE CAUSE) BE STRICTLY ENFORCED, FOR THE STANDARD SET BY THE

  CONSTITUTION PROTECTS BOTH THE OFFICER AND THE CITIZEN.  IF THE

  OFFICER ACTS WITH PROBABLE CAUSE, HE IS PROTECTED EVEN THOUGH IT

  TURNS OUT THAT THE CITIZEN IS INNOCENT.  . . . AND WHILE A SEARCH

  WITHOUT A WARRANT IS, WITHIN LIMITS, PERMISSIBLE IF INCIDENT TO A

  LAWFUL ARREST, IF AN ARREST WITHOUT A WARRANT IS TO SUPPORT AN

  INCIDENTAL SEARCH, IT MUST BE MADE WITH PROBABLE CAUSE.  . . .

  THIS IMMUNITY OF OFFICERS CANNOT FAIRLY BE ENLARGED WITHOUT

  JEOPARDIZING THE PRIVACY OR SECURITY OF THE CITIZEN." 

THE INFRINGEMENT ON PERSONAL LIBERTY OF ANY "SEIZURE" OF A PERSON
CAN ONLY BE "REASONABLE" UNDER THE FOURTH AMENDMENT IF WE REQUIRE THE
POLICE TO POSSESS "PROBABLE CAUSE" BEFORE THEY SEIZE HIM.  ONLY THAT
LINE DRAWS A MEANINGFUL DISTINCTION BETWEEN AN OFFICER'S MERE INKLING
AND THE PRESENCE OF FACTS WITHIN THE OFFICER'S PERSONAL KNOWLEDGE WHICH
WOULD CONVINCE A REASONABLE MAN THAT THE PERSON SEIZED HAS COMMITTED,
IS COMMITTING, OR IS ABOUT TO COMMIT A PARTICULAR CRIME.  "IN DEALING
WITH PROBABLE CAUSE, . . . AS THE VERY NAME IMPLIES, WE DEAL WITH
PROBABILITIES.  THESE ARE NOT TECHNICAL.  THEY ARE THE FACTUAL AND
PRACTICAL CONSIDERATIONS OF EVERYDAY LIFE ON WHICH REASONABLE AND
PRUDENT MEN, NOT LEGAL TECHNICIANS, ACT."  BRINEGAR V. UNITED STATES,
338 U.S. 160, 175. 

TO GIVE THE POLICE GREATER POWER THAN A MAGISTRATE IS TO TAKE A LONG
STEP DOWN THE TOTALITARIAN PATH.  PERHAPS SUCH A STEP IS DESIRABLE TO
COPE WITH MODERN FORMS OF LAWLESSNESS.  BUT IF IT IS TAKEN, IT SHOULD
BE THE DELIBERATE CHOICE OF THE PEOPLE THROUGH A CONSTITUTIONAL
AMENDMENT.  UNTIL THE FOURTH AMENDMENT, WHICH IS CLOSELY ALLIED WITH
THE FIFTH, /4/  IS REWRITTEN, THE PERSON AND THE EFFECTS OF THE
INDIVIDUAL ARE BEYOND THE REACH OF ALL GOVERNMENT AGENCIES UNTIL THERE
ARE REASONABLE GROUNDS TO BELIEVE (PROBABLE CAUSE) THAT A CRIMINAL
VENTURE HAS BEEN LAUNCHED OR IS ABOUT TO BE LAUNCHED. 

THERE HAVE BEEN POWERFUL HYDRAULIC PRESSURES THROUGHOUT OUR HISTORY
THAT BEAR HEAVILY ON THE COURT TO WATER DOWN CONSTITUTIONAL GUARANTEES
AND GIVE THE POLICE THE UPPER HAND.  THAT HYDRAULIC PRESSURE HAS
PROBABLY NEVER BEEN GREATER THAN IT IS TODAY. 

YET IF THE INDIVIDUAL IS NO LONGER TO BE SOVEREIGN, IF THE POLICE
CAN PICK HIM UP WHENEVER THEY DO NOT LIKE THE CUT OF HIS JIB, IF THEY
CAN "SEIZE" AND "SEARCH" HIM IN THEIR DISCRETION, WE ENTER A NEW
REGIME.  THE DECISION TO ENTER IT SHOULD BE MADE ONLY AFTER A FULL
DEBATE BY THE PEOPLE OF THIS COUNTRY. 

/1/  THE MEANING OF "PROBABLE CAUSE" HAS BEEN DEVELOPED IN CASES
WHERE AN OFFICER HAS REASONABLE GROUNDS TO BELIEVE THAT A CRIME HAS
BEEN OR IS BEING COMMITTED.  SEE, E.G., THE THOMPSON, 3 WALL.  155;
STACEY V. EMERY, 97 U.S. 642; DIRECTOR GENERAL V. KASTENBAUM, 263 U.S.
25; CARROLL V. UNITED STATES, 267 U.S. 132; UNITED STATES V. DI RE, 332
U.S. 581; BRINEGAR V. UNITED STATES, 338 U.S. 160; DRAPER V. UNITED
STATES, 358 U.S. 307; HENRY V. UNITED STATES, 361 U.S. 98.  IN SUCH
CASES, OF COURSE, THE OFFICER MAY MAKE AN "ARREST" HHICH RESULTS IN
CHARGING THE INDIVIDUAL WITH COMMISSION OF A CRIME.  BUT WHILE
ARRESTING PERSONS WHO HAVE ALREADY COMMITTED CRIMES IS AN IMPORTANT
TASK OF LAW ENFORCEMENT, AN EQUALLY IF NOT MORE IMPORTANT FUNCTION IS
CRIME PREVENTION AND DETERRENCE OF WOULD-BE CRIMINALS.  "(THERE IS NO
WAR BETWEEN THE CONSTITUTION AND COMMON SENSE," MAPP V. OHIO, 367 U.S.
643, 657.  POLICE OFFICERS NEED NOT WAIT UNTIL THEY SEE A PERSON
ACTUALLY COMMIT A CRIME BEFORE THEY ARE ABLE TO "SEIZE"  THAT PERSON. 
RESPECT FOR OUR CONSTITUTIONAL SYSTEM AND PERSONAL LIBERTY DEMANDS IN
RETURN, HOWEVER, THAT SUCH A "SEIZURE" BE MADE ONLY UPON "PROBABLE
CAUSE." 

/2/  OHIO REV. CODE SEC. 2923.01. 

/3/  THIS COURT HAS ALWAYS USED THE LANGUAGE OF "PROBABLE CAUSE" IN
DETERMINING THE CONSTITUTIONALITY OF AN ARREST WITHOUT A WARRANT.  SEE,
E.G., CARROLL V. UNITED STATES, 267 U.S. 132, 156, 161-162; JOHNSON V.
UNITED STATES, 333 U.S. 10, 13-15; MCDONALD V. UNITED STATES, 335 U.S.
451, 455-456; HENRY V. UNITED STATES, 361 U.S. 98; WONG SUN V. UNITED
STATES, 371 U.S. 471, 479-484.  TO GIVE POWER TO THE POLICE TO SEIZE A
PERSON ON SOME GROUNDS DIFFERENT FROM OR LESS THAN "PROBABLE CAUSE"
WOULD BE HANDING THEM MORE AUTHORITY THAN COULD BE EXERCISED BY A
MAGISTRATE IN ISSUING A WARRANT TO SEIZE A PERSON.  AS WE STATED IN
WONG SUN V. UNITED STATES, 371 U.S. 471, WITH RESPECT TO REQUIREMENTS
FOR ARRESTS WITHOUT WARRANTS:  "WHETHER OR NOT THE REQUIREMENTS OF
RELIABILITY AND PARTICULARITY OF THE INFORMATION ON WHICH AN OFFICER
MAY ACT ARE MORE STRINGENT WHERE AN ARREST WARRANT IS ABSENT, THEY
SURELY CANNOT BE LESS STRINGENT THAN WHERE AN ARREST WARRANT IS
OBTAINED."  ID., AT 479.  AND WE SAID IN BRINEGAR V. UNITED STATES, 338
U.S. 160, 176: 

"THESE LONG-PREVAILING STANDARDS (FOR PROBABLE CAUSE) SEEK TO
SAFEGUARD CITIZENS FROM RASH AND UNREASONABLE INTERFERENCES WITH
PRIVACY AND FROM UNFOUNDED CHARGES OF CRIME.  THEY ALSO SEEK TO GIVE
FAIR LEEWAY FOR ENFORCING THE LAW IN THE COMMUNITY'S PROTECTION. 
BECAUSE MANY SITUATIONS WHICH CONFRONT OFFICERS IN THE COURSE OF
EXECUTING THEIR DUTIES ARE MORE OR LESS AMBIGUOUS, ROOM MUST BE ALLOWED
FOR SOME MISTAKES ON THEIR PART.  BUT THE MISTAKES MUST BE THOSE OF
REASONABLE MEN, ACTING ON FACTS LEADING SENSIBLY TO THEIR CONCLUSIONS
OF PROBABILITY.  THE RULE OF PROBABLE CAUSE IS A PRACTICAL,
NONTECHNICAL CONCEPTION AFFORDING THE BEST COMPROMISE THAT HAS BEEN
FOUND FOR ACCOMMODATING THESE OFTEN OPPOSING INTERESTS.  REQUIRING MORE
WOULD UNDULY HAMPER LAW ENFORCEMENT.  TO ALLOW LESS WOULD BE TO LEAVE
LAW-ABIDING CITIZENS AT THE MERCY OF THE OFFICERS' WHIM OR CAPRICE." 

AND SEE JOHNSON V. UNITED STATES, 333 U.S. 10, 14-15; WRIGHTSON V.
UNITED STATES, 95 U.S.APP.D.C. 390, 393-394, 222 F.2D 556, 559-560
(1955). 

/4/  SEE BOYD V. UNITED STATES, 116 U.S. 616, 633: 

"FOR THE 'UNREASONABLE SEARCHES AND SEIZURES' CONDEMED IN THE FOURTH
AMENDMENT ARE ALMOST ALWAYS MADE FOR THE PURPOSE OF COMPELLING A MAN TO
GIVE EVIDENCE AGAINST HIMSELF, WHICH IN CRIMINAL CASES IS CONDEMNED IN
THE FIFTH AMENDMENT; AND COMPELLING A MAN 'IN A CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF,' WHICH IS CONDEMNED IN THE FIFTH AMENDMENT,
THROWS LIGHT ON THE QUESTION AS TO WHAT IS AN 'UNREASONABLE SEARCH AND
SEIZURE' WITHIN THE MEANING OF THE FOURTH AMENDMENT." 

LOUIS STOKES ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEF
WAS JACK G. DAY. 

REUBEN M. PAYNE ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS JOHN T. CORRIGAN. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY JACK
GREENBERG, JAMES M. NABRIT III, MICHAEL MILTSNER, MELVYN ZARR, AND
ANTHONY G. AMSTERDAM FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,
INC., AND BY BERNARD A. BERKMAN, MELVIN L. WULF, AND ALAN H. LEVINE FOR
THE AMERICAN CIVIL LIBERTIES UNION ET AL. 

BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, RALPH S. SPRITZER,
BEATRICE ROSENBERG, AND MERVYN HAMBURG FOR THE UNITED STATES; BY LOUIS
J. LEFKOWITZ, PRO SE, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL, AND MARIA L. MARCUS AND BRENDA SOLOFF, ASSISTANT ATTORNEYS
GENERAL, FOR THE ATTORNEY GENERAL OF NEW YORKL BY CHARLES MOYLAN, JR.,
EVELLE J. YOUNGER, AND HARRY WOOD FOR THE NATIONAL DISTRICT ATTORNEYS'
ASSN., AND BY JAMES R. THOMPSON FOR AMERICANS FOR EFFECTIVE LAW
ENFORCEMENT. 
..END :
















SIBRON V. NEW YORK, 392 U.S. 40 


       SIBRON V. NEW YORK. 

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 63.  ARGUED DECEMBER 11-12, 1967.-- DECIDED JUNE 10,

           1968.  /0/ 


IN NO. 63, A NEW YORK POLICE OFFICER ON PATROL OBSERVED DURING AN
EIGHT-HOUR PERIOD A MAN (APPELLANT SIBRON), WHOM HE DID NOT KNOW AND
HAD NO INFORMATION ABOUT, IN CONVERSATION WITH SIX OR EIGHT PERSONS
WHOM THE OFFICER KNEW AS NARCOTICS ADDICTS.  LATER THE OFFICER SAW
SIBRON IN A RESTAURANT WITH THREE MORE KNOWN ADDICTS.  THE OFFICER ON
NONE OF THESE OCCASIONS OVERHEARD ANY CONVERSATION OR SAW ANYTHING PASS
BETWEEN SIBRON AND THE OTHERS.  LATER THE OFFICER ORDERED SIBRON
OUTSIDE THE RESTAURANT, WHERE THE OFFICER SIAD, "YOU KNOW WHAT I AM
AFTER."  WHEN SIBRON REACHED INTO HIS POCKET THE OFFICER REACHED INTO
THE SAME POCKET AND FOUND SOME ENVELOPES CONTAINING HEROIN.  SIBRON WAS
CHARGED WITH THE UNLAWFUL POSSESSION OF THE HEROIN.  THE TRIAL COURT
REJECTED SIBRON'S MOTION TO SUPPRESS THE HEROIN AS ILLEGALLY SEIZED,
HOLDING THAT THE OFFICER HAD PROBABLE CAUSE TO MAKE THE ARREST AND TO
SEIZE THE HEROIN.  THEREAFTER SIBRON PLEADED GUILTY, PRESERVING HIS
RIGHT TO APPEAL THE EVIDENTIARY RULING.  SIBRON, WHO WAS PRECLUDED FROM
OBTAINING BAIL PENDING APPEAL, COMPLETED SERVICE OF HIS SIX-MONTH
SENTENCE ROUGHLY TWO MONTHS BEFORE IT WAS PHYSICALLY POSSIBLE FOR HIM
TO PRESENT HIS CASE ON APPEAL.  HIS CONVICTION WAS AFFIRMED BY THE
INTERMEDIATE STATE APPELLATE COURT AND THEN BY THE NEW YORK COURT OF
APPEALS.  IN THIS COURT THE STATE INITIALLY SOUGHT TO JUSTIFY THE
SEARCH ON THE BASIS OF NEW YORK'S "STOP-AND-FRISK" LAW, N.Y. CODE CRIM.
PROC. SEC. 180-A, WHICH THE NEW YORK COURT OF APPEALS APPARENTLY VIEWED
AS AUTHORIZING THE SEARCH.  THAT LAW PROVIDES THAT A "POLICE OFFICER
MAY STOP ANY PERSON ABROAD IN A PUBLIC PLACE WHOM HE REASONABLY
SUSPECTS IS COMMITTING . . . " CERTAIN CRIMES "AND MAY DEMAND . . . HIS
NAME, ADDRESS AND AN EXPLANATION OF HIS ACTIONS," AND WHEN THE OFFICER
"SUSPECTS THAT HE IS IN DANGER . . . HE MAY SEARCH SUCH PERSON FOR A
DANGEROUS WEAPON."  AFTER THIS COURT NOTED PROBABLE JURISDICTION THE
COUNTY DISTRICT A TORNEY CONFESSED ERROR.  IN NO. 74, AN OFFICER, AT
HOME IN THE APARTMENT WHERE HE HAD LIVED FOR 12 YEARS, HEARD A NOISE AT
THE DOOR.  THROUGH THE PEEPHOLE HE SAY TWO STRANGERS (APPELLANT PETERS
AND ANOTHER) TIPTOEING FURTIVELY ABOUT THE HALLWAY.  HE CALLED THE
POLICE, DRESSED, AND ARMED HIMSELF WITH HIS SERVICE REVOLVER.  HE
OBSERVED THE TWO STILL ENGAGED IN SUSPICIOUS MANEUVERS AND, BELIEVING
THAT THEY WERE ATTEMPTING A BURGLARY, THE OFFICER PURSUED THEM,
CATCHING PETERS BY THE COLLAR IN THE APARTMENT HALLWAY.  PETERS SAID
THAT HE HAD BEEN VISITING A GIRL FRIEND, WHOM HE DECLINED TO IDENTIFY. 
THE OFFICER PATTED PETERS DOWN FOR WEAPONS AND DISCOVERED A HARD OBJECT
WHICH HE THOUGHT MIGHT BE A KNIFE BUT WHICH TURNED OUT TO BE A
CONTAINER WITH BURGLAR'S TOOLS, FOR THE POSSESSION OF WHICH PETERS WAS
LATER CHARGED.  THE TRIAL COURT DENIED PETERS' MOTION TO SUPPRESS THAT
EVIDENCE, REFUSING TO CREDIT PETERS' TESTIMONY THAT HE HAD BEEN
VISITING A GIRL FRIEND AND FINDING THAT THE OFFICER HAD THE REQUISITE
"REASONABLE SUSPICION" UNDER SEC. 180-A TO STOP AND QUESTION PETERS AND
TO "FRISK" HIM FOR A DANGEROUS WEAPON IN THE APARTMENT HALLWAY, WHICH
THE COURT FOUND WAS A "PUBLIC PLACE," WITHIN THE MEANING OF THE
STATUTE.  PETERS THEN PLEADED GUILTY, PRESERVING HIS RIGHT TO APPEAL
THE REJECTION OF HIS MOTION TO SUPPRESS.  THE INTERMEDIATE APPELLATE
COURT AFFIRMED, AS DID THE NEW YORK COURT OF APPEALS, WHICH HELD THE
SEARCH JUSTIFIED UNDER SEC. 180-A.  THE PARTIES ON BOTH SIDES CONTEND
THAT THE PRINCIPAL ISSUE IN BOTH CASES IS THE CONSTITUTIONALITY OF SEC.
180-A "ON ITS FACE."  HELD: 

1.  SIBRON'S COMPLETION OF SERVICE OF HIS SENTENCE DOES NOT MOOT HIS
APPEAL.  PP. 50-58. 

(A) A STATE MAY NOT EFFECTIVELY DENY A CONVICT ACCESS TO ITS
APPELLATE COURTS UNTIL HIS RELEASE AND THEN ARGUE THAT HIS CASE HAS
BEEN MOOTED BY HIS FAILURE TO DO WHAT IT HAS PREVENTED HIM FROM DOING. 
P. 52. 

(B) EVEN THOUGH SIBRON WAS A MULTIPLE OFFENDER HE "HAD A SUBSTANTIAL
STAKE IN THE JUDGMENT OF CONVICTION WHICH SURVIVES THE SATISFACTION OF
THE SENTENCE IMPOSED ON HIM."  FISWICK V. UNITED STATES, 329 U.S. 211
(1946), FOLLOWED; ST. PIERRE V. UNITED STATES, 319 U.S. 41 (1943),
QUALIFIED.  PP. 55-58. 

2.  A CONFESSION OF ERROR, THOUGH ENTITLED TO GREAT WEIGHT, DOES NOT
RELIEVE THIS COURT FROM MAKING ITS OWN EXAMINATION OF THE RECORD OF A
CASE WHERE A CONVICTION HAS BEEN ERRONEOUSLY OBTAINED, PARTICULARLY
WHERE A JUDGMENT OF THE STATE'S HIGHEST COURT INTERPRETING A STATE
STATUTE IS CHALLENGED ON CONSTITUTIONAL GROUNDS AND THE CONFESSION OF
ERROR HAS BEEN MADE BY A LOCAL OFFICIAL RATHER THAN BY AN OFFICIAL
AUTHORIZED TO SPEAK FOR THE STATE AS A WHOLE.  PP. 58-59. 

3.  SINCE THE QUESTION IN THIS COURT IS NOT WHETHER THE SEARCH (OR
SEIZURE) WAS AUTHORIZED BY SEC. 180-A, BUT WHETHER IT WAS REASONABLE
UNDER THE FOURTY AMENDMENT, THE COURT DOES NOT PASS UPON THE FACIAL
CONSTITUTIONALITY OF THE STATUTE.  PP. 59-62. 

4.  IN NO. 63, THE HEROIN WAS ILLEGALLY SEIZED AND THEREFORE
INADMISSIBLE IN EVIDENCE.  PP. 62-66. 

(A) THE SEARCH OF SIBRON CANNOT BE JUSTIFIED AS INCIDENT TO A LAWFUL
ARREST SINCE NO PROBABLE CAUSE EXISTED BEFORE THE SEARCH.  PP. 62-63. 

(B) THERE WERE NO ADEQUATE GROUNDS FOR THE OFFICER TO SEARCH SIBRON
FOR WEAPONS SINCE THE OFFICER HAD NO REASON TO BELIEVE THAT SIBRON WAS
ARMED AND DANGEROUS; AND EVEN IF THERE ARGUABLY HAD BEEN SUCH A
JUSTIFICATION, THERE WAS NO INITIAL LIMITED EXPLORATION FOR ARMS BEFORE
THE OFFICER THRUST HIS HAND INTO SIBRON'S POCKET.  TERRY V. OHIO, ANTE,
P. 1, DISTINGUISHED, PP. 63-65. 

5.  IN NO. 74, THE SEARCH WAS REASONABLE AND THE EVIDENCE SEIZED WAS
ADMISSIBLE.  PP. 66-67. 

(A) THE SEARCH OF PETERS WAS INCIDENT TO A LAWFUL ARREST UNDER THE
FOURTH AMENDMENT.  PP. 66-67. 

(B) THE "ARREST" OF PETERS HAD TAKEN PLACE BEFORE THE SEARCH, AND
AFTER THE ARREST THE OFFICER HAD AUTHORITY TO SEARCH PETERS.  P. 67. 

(C) THE INCIDENT SEARCH, WHICH WAS LIMITED IN SCOPE, WAS JUSTIFIED
BY THE NEED TO SEIZE WEAPONS AS WELL AS THE NEED TO PREVENT DESTRUCTION
OF EVIDENCE OF THE CRIME.  P. 67. 

NO. 63, 18 N.Y.2D 603, 219 N.E.2D 196, REVERSED; NO. 74, 18 N.Y.2D
238, 219 N.E.2D 595, AFFIRMED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO NO. 67, TERRY V. OHIO, ANTE, P. 1,
DECIDED TODAY.  THEY PRESENT RELATED QUESTIONS UNDER THE FOURTH AND
FOURTEENTH AMENDMENTS, BUT THE CASES ARISE IN THE CONTEXT OF NEW YORK'S
"STOP-AND-FRISK" LAW, N.Y. CODE CRIM. PROC. SEC. 180-A.  THIS STATUTE
PROVIDES: 

     "1.  A POLICE OFFICER MAY STOP ANY PERSON ABROAD IN A PUBLIC

  PLACE WHOM HE REASONABLY SUSPECTS IS COMMITTING, HAS COMMITTED OR

IS ABOUT TO COMMIT A FELONY OR ANY OF THE OFFENSES SPECIFIED IN

  SECTION FIVE HUNDRED FIFTY-TWO OF THIS CHAPTER, AND MAY DEMAND OF

  HIM HIS NAME, ADDRESS AND AN EXPLANATION OF HIS ACTIONS. 

     "2.  WHEN A POLICE OFFICER HAS STOPPED A PERSON FOR
QUESTIONING

  PURSUANT TO THIS SECTION AND REASONABLY SUSPECTS THAT HE IS IN

  DANGER OF LIFE OR LIMB, HE MAY SEARCH SUCH PERSON FOR A DANGEROUS

  WEAPON.  IF THE POLICE OFFICER FINDS SUCH A WEAPON OR ANY OTHER

  THING THE POSSESSION OF WHICH MAY CONSTITUTE A CRIME, HE MAY TAKE

 AND KEEP IT UNTIL THE COMPLETION OF THE QUESTIONING, AT WHICH

  TIME HE SHALL EITHER RETURN IT, IF LAWFULLY POSSESSED, OR ARREST

  SUCH PERSON." 

THE APPELLANTS, SIBRON AND PETERS, WERE BOTH CONVICTED OF CRIMES IN
NEW YORK STATE COURTS ON THE BASIS OF EVIDENCE SEIZED FROM THEIR
PERSONS BY POLICE OFFICERS.  THE COURT OF APPEALS OF NEW YORK HELD THAT
THE EVIDENCE WAS PROPERLY ADMITTED, ON THE GROUND THAT THE SEARCHES
WHICH UNCOVERED IT WERE AUTHORIZED BY THE STATUTE.  PEOPLE V. SIBRON,
18 N.Y.2D 603, 219 N.E.2D 196, 272 N.Y.S.2D 374 (1966) (MEMORANDUM);
PEOPLE V. PETERS, 18 N.Y.2D 238, 219 N.E.2D 595, 273 N.Y.S.2D 217
(1966).  SIBRON AND PETERS HAVE APPEALED THEIR CONVICTIONS TO THIS
COURT, CLAIMING THAT SEC. 180-A IS UNCONSTITUTIONAL ON ITS FACE AND AS
CONSTRUED AND APPLIED, BECAUSE THE SEARCHES AND SEIZURES WHICH IT WAS
HELD TO HAVE AUTHORIZED VIOLATED THEIR RIGHTS UNDER THE FOURTH
AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH.  MAPP V.
OHIO, 367 U.S. 643 (1961).  WE NOTED PROBABLE JURISDICTION, 386 U.S.
954 (1967); 386 U.S. 980 (1967), AND CONSOLIDATED THE TWO CASES FOR
ARGUMENT WITH NO. 67. 

THE FACTS IN THESE CASES MAY BE STATED BRIEFLY.  SIBRON, THE
APPELLANT IN NO. 63, WAS CONVICTED OF THE UNLAWFUL POSSESSION OF
HEROIN.  /1/  HE MOVED BEFORE TRIAL TO SUPPRESS THE HEROIN SEIZED FROM
HIS PERSON BY THE ARRESTING OFFICER, BROOKLYN PATROLMAN ANTHONY
MARTIN.  AFTER THE TRIAL COURT DENIED HIS MOTION, SIBRON PLEADED GUILTY
TO THE CHARGE, PRESERVING HIS RIGHT TO APPEAL THE EVIDENTIARY RULING. 
/2/  AT THE HEARING ON THE MOTION TO SUPPRESS, OFFICER MARTIN TESTIFIED
THAT WHILE HE WAS PATROLLING HIS BEAT IN UNIFORM ON MARCH 9, 1965, HE
OBSERVED SIBRON "CONTINUALLY FROM THE HOURS OF 4:00 P.M. TO 12:00,
MIDNIGHT . . . IN THE VICINITY OF 742 BROADWAY."  HE STATED THAT DURING
THIS PERIOD OF TIME HE SAW SIBRON IN CONVERSATION WITH SIX OR EIGHT
PERSONS WHOM HE (PATROLMAN MARTIN) KNEW FROM PAST EXPERIENCE TO BE
NARCOTICS ADDICTS.  THE OFFICER TESTIFIED THAT HE DID NOT OVERHEAR ANY
OF THESE CONVERSATIONS, AND THAT HE DID NOT SEE ANYTHING PASS BETWEEN
SIBRON AND ANY OF THE OTHERS.  LATE IN THE EVENING SIBRON ENTERED A
RESTAURANT.  PATROLMAN MARTIN SAW SIBRON SPEAK WITH THREE MORE KNOWN
ADDICTS INSIDE THE RESTAURANT.  ONCE AGAIN, NOTHING WAS OVERHEARD AND
NOTHING WAS SEEN TO PASS BETWEEN SIBRON AND THE ADDICTS.  SIBRON SAT
DOWN AND ORDERED PIE AND COFFEE, AND, AS HE WAS EATING, PATROLMAN
MARTIN APPROACHED HIM AND TOLD HIM TO COME OUTSIDE.  ONCE OUTSIDE, THE
OFFICER SAID TO SIBRON, "YOU KNOW WHAT I AM AFTER."  ACCORDING TO THE
OFFICER, SIBRON "MUMBLED SOMETHING AND REACHED INTO HIS POCKET." 
SIMULTANEOUSLY, PATROLMAN MARTIN THRUST HIS HAND INTO THE POCKET,
DISCOVERING SEVERAL GLASSINE ENVELOPES, WHICH, IT TURNED OUT, CONTAINED
HEROIN. 

THE STATE HAS HAD SOME DIFFICULTY IN SETTLING UPON A THEORY FOR THE
ADMISSIBILITY OF THESE ENVELOPES OF HEROIN.  IN HIS SWORN COMPLAINT
PATROLMAN MARTIN STATED: 

"AS THE OFFICER APPROACHED THE DEFENDANT, THE LATTER BEING IN THE
DIRECTION OF THE OFFICER AND SEEING HIM, HE DID PUT HIS HAND IN HIS
LEFT JACKET POCKET AND PULLED OUT A TINFOIL ENVELOPE AND DID ATTEMPT TO
THROW SAME ON THE GROUND.  THE OFFICER NEVER LOSING SIGHT OF THE SAID
ENVELOPE SEIZED IT FROM THE DEFENDANTT'S LEFT HAND, EXAMINED IT AND
FOUND IT TO CONTAIN TEN GLASCINE (SIC) ENVELOPES WITH A WHITE SUBSTANCE
ALLEGED TO BE HEROIN."  THIS VERSION OF THE ENCOUNTER, HOWEVER, BEARS
VERY LITTLE RESEMBLANCE TO PATROLMAN MARTIN'S TESTIMONY AT THE HEARING
OF THE MOTION TO SUPPRESS.  IN FACT, HE DISCARDED THE ABANDONMENT
THEORY AT THE HEARING.  /3/  NOR DID THE OFFICER EVER SERIOUSLY SUGGEST
THAT HE WAS IN FEAR OF BODILY HARM.AND THAT HE SEARCHED SIBRON IN SELF
PROTECTION TO FIND WEAPONS.  /4/ 

THE PROSECUTOR'S THEORY AT THE HEARING WAS THAT PATROLMAN MARTIN HAD
PROBABLE CAUSE TO BELIEVE THAT SIBRON WAS IN POSSESSION OF NARCOTICS
BECAUSE HE HAD SEEN HIM CONVERSING WITH A NUMBER OF KNOWN ADDICTS OVER
AN EIGHT-HOUR PERIOD.  IN THE ABSENCE OF ANY KNOWLEDGE ON PATROLMAN
MARTIN'S PART CONCERNING THE NATURE OF THE INTERCOURSE BETWEEN SIBRON
AND THE ADDICTS, HOWEVER, THE TRIAL COURT WAS INCLINED TO GRANT THE
MOTION TO SUPPRESS.  AS THE JUDGE STATED, "ALL HE KNOWS ABOUT THE
UNKNOWN MEN:  THEY ARE NARCOTICS ADDICTS.  THEY MIGHT HAVE BEEN TALKING
ABOUT THE WORLK SERIES.  THEY MIGHT HAVE BEEN TALKING ABOUT PRIZE
FIGHTS.  THE PROSECUTOR, HOWEVER, REMINDED THE JUDGE THAT SIBRON HAD
ADMITTED ON THE STAND, IN PATROLMAN MARTIN'S ABSENCE, THAT HE HAD BEEN
TALKING TO THE ADDICTS ABOUT NARCOTICS.  THEREUPON, THE TRIAL JUDGE
CHANGED HIS MIND AND RULED THAT THE OFFICER HAD PROBABLE CAUSE FOR AN
ARREST. 

POINT IN THE TRIAL COURT.  THE APPELLATE TERM OF THE SUPREME COURT
AFFIRMED THE CONVICTION WITHOUT OPINION.  IN THE COURT OF APPEALS OF
NEW YORK, SIBRON'S CASE WAS CONSOLIDATED WITH THE PETERS CASE, NO. 74. 
THE COURT OF APPEALS HELD THAT THE SEARCH IN PETERS WAS JUSTIFIED UNDER
THE STATUTE, BUT IT WROTE NO OPINION IN SIBRON'S CASE.  THE DISSENTS OF
JUDGES FULD AND VAN VOORHIS, HOWEVER, INDICATE THAT THE COURT RESTED
ITS HOLDING ON SEC. 180-A.  AT ANY RATE, IN ITS BRIEF IN OPPOSITION TO
THE JURISDICTIONAL STATEMENT IN THIS COURT, THE STATE SOUGHT TO JUSTIFY
THE SEARCH ON THE BASIS OF THE STATUTE.  AFTER WE NOTED PROBABLE
JURISDICTION, THE DISTRICT ATTORNEY FOR KINGS COUNTY CONFESSED ERROR. 

PETERS, THE APPELLANT IN NO. 74, WAS CONVICTED OF POSSESSING
BURGLARY TOOLS UNDER CIRCUMSTANCES EVINCING AN INTENT TO EMPLOY THEM IN
THE COMMISSION OF A CRIME.  /5/  THE TOOLS WERE SEIZED FROM HIS PERSON
AT THE TIME OF HIS ARREST, AND LIKE SIBRON HE MADE A PRETRIAL MOTION TO
SUPPRESS THEM.  WHEN THE TRIAL COURT DENIED THE MOTION, HE TOO PLEADED
GUILTY, PRESERVING HIS RIGHT TO APPEAL.  OFFICER SAMUEL LASKY OF THE
NEW YORK CITY POLICE DEPARTMENT TESTIFIED AT THE HEARING ON THE MOTION
THAT HE WAS AT HOME IN HIS APARTMENT IN MOUNT VERNON, NEW YORK, AT
ABOUT 1 P.M. ON JULY 10, 1964.  HE HAD JUST FINISHED TAKING A SHOWER
AND WAS DRYING HIMSELF WHEN HE HEARD A NOISE AT HIS DOOR.  HIS ATTEMPT
TO INVESTIGATE WAS INTERRUPTED BY A TELEPHONE CALL, BUT WHEN HE
RETURNED AND LOOKED THROUGH THE PEEPHOLE INTO THE HALL, OFFICER LASKY
SAW "TWO MEN TIPTOEING OUT OF THE ALCOVE TOWARD THE STAIRWAY."  HE
IMMEDIATELY CALLED THE POLICE, PUT ON SOME CIVILIAN CLOTHES AND ARMED
HIMSELF WITH HIS SERVICE REVOLVER.  RETURNING TO THE PEEPHOLE, HE SAW
"A TALL MAN TIPTOEING AWAY FROM THE ALCOVE AND FOLLOWED BY THIS SHORTER
MAN, MR. PETERS, TOWARD THE STAIRWAY."  OFFICER LASKY TESTIFIED THAT HE
HAD LIVED IN THE 120-UNIT BUILDING FOR 12 YEARS AND THAT HE DID NOT
RECOGNIZE EITHER OF THE MEN AS TENANTS.  BELIEVING THAT HE HAD HAPPENED
UPON THE TWO MEN IN THE COURSE OF AN ATTEMPTED BURGLARY, /6/  OFFICER
LASKY OPENED HIS DOOR, ENTERED THE HALLWAY AND SLAMMED THE DOOR LOUDLY
BEHIND HIM.  THIS PRECIPITATED A FLIGHT DOWN THE STAIRS ON THE PART OF
THE TWO MEN, /7/  AND OFFICER LASKY GAVE CHASE.  HIS APARTMENT WAS
LOCATED ON THE SIXTH FLOOR, AND HE APPREHENDED PETERS BETWEEN THE
FOURTH AND FIFTH FLOORS.  GRABBING PETERS BY THE COLLAR, HE CONTINUED
DOWN ANOTHER FLIGHT IN UNSUCCESSFUL PRUSUIT OF THE OTHER MAN.  PETERS
EXPLAINED HIS PRESENCE IN THE BUILDING TO OFFICER LASKY BY SAYING THAT
HE WAS VISITING A GIRL FRIEND.  HOWEVER, HE DECLINED TO REVEAL THE GIRL
FRIEND'S NAME, ON THE GROUND THAT SHE WAS A MARRIED WOMAN.  OFFICER
LASKY PATTED PETERS DOWN FOR WEAPONS, AND DISCOVERED A HARD OBJECT IN
HIS POCKET.  HE STATED AT THE HEARING THAT THE OBJECT DID NOT FEEL LIKE
A GUN, BUT THAT IT MIGHT HAVE BEEN A KNIFE.  HE REMOVED THE OBJECT FROM
PETERS' POCKET.  IT WAS AN OPAQUE PLASTIC ENVELOP, CONTAINING BURGLAR'S
TOOLS. 

THE TRIAL COURT EXPLICITLY REFUSED TO CREDIT PETERS' TESTIMONY THAT
HE WAS MERELY IN THE BUILDING TO VISIT HIS GIRL FRIEND.  IT FOUND THAT
OFFICER LASKY HAD THE REQUISITE "REASONABLE SUSPICION" OF PETERS UNDER
SEC. 180-A TO STOP HIM AND QUESTION HIM.  IT ALSO FOUND THAT PETERS'
RESPONSE WAS "CLEARLY UNSATISFACTORY," AND THAT "UNDER THE
CIRCUMSTANCES LASKY'S ACTION IN FRISKING PETERS FOR A DANGEROUS WEAPON
WAS REASONABLE, EVEN THOUGH LASKY WAS HIMSELF ARMED."  IT HELD THAT THE
HALLWAY OF THE APARTMENT BUILDING WAS A "PUBLIC PLACE"  WITHIN THE
MEANING OF THE STATUTE.  THE APPELLATE DIVISION OF THE SUPREME COURT
AFFIRMED WITHOUT OPINION.  THE COURT OF APPEALS ALSO AFFIRMED,
ESSENTIALLY ADOPTING THE REASONING OF THE TRIAL JUDGE, WITH JUDGE FULD
AND VANVOORHIS DISSENTING SEPARATELY. 

      I. 

AT THE OUTSET WE MUST DEAL WITH THE QUESTION WHETHER WE HAVE
JURISDICTION IN NO. 63.  IT IS ASSERTED THAT BECAUSE SIBRON HAS
COMPLETED SERVICE OF THE SIX-MONTH SENTENCE IMPOSED UPON HIM AS A
RESULT OF HIS CONVICTION, THE CASE HAS BECOME MOOT UNDER ST. PIERRE V.
UNITED STATES, 319 U.S. 41 (1943).  /8/  WE HAVE CONCLUDED THAT THE
CASE IS NOT MOOT. 

IN THE FIRST PLACE, IT IS CLEAR THAT THE BROAD DICTUM WITH WHICH THE
COURT COMMENCED ITS DISCUSSION IN ST. PIERRE-- THAT "THE CASE IS MOOT
BECAUSE, AFTER PETITIONER'S SERVICE OF HIS SENTENCE AND ITS EXPIRATION,
THERE WAS NO LONGER A SUBJECT MATTER ON WHICH THE JUDGMENT OF THIS
COURT COULD OPERATE"  (319 U.S.,AT 42)-- FAILS TO TAKE ACCOUNT OF
SIGNIFICANT QUALIFICATIONS RECOGNIZED IN ST. PIERRE AND DEVELOPED IN
LATER CASES.  ONLY A FEW DAYS AGO WE HELD UNANIMOUSLY THAT THE WRIT OF
HABEAS CORPUS WAS AVAILABLE TO TEST THE CONSTITUTIONALITY OF A STATE
CONVICTION WHERE THE PETITIONER HAD BEEN IN CUSTODY WHEN HE APPLIED FOR
THE WRIT, BUT HAD BEEN RELEASED BEFORE THIS COURT COULD ADJUDICATE HIS
CLAIMS.  CARAFAS V. LAVALLEE, 391 U.S. 234 (1968).  ON NUMEROUS
OCCASIONS IN THE PAST THIS COURT HAS PROCEEDED TO ADJUDICATE THE MERITS
OF CRIMINAL CASES IN WHICH THE SENTENCE HAD BEEN FULLY SERVED OR THE
PROBATIONARY PERIOD DURING WHICH A SUSPENDED SENTENCE COULD BE
REIMPOSED HAD TERMINATED.  GINSBERG V. NEW YORK, 390 U.S. 629 (1968);
POLLARD V. UNITED STATES, 352 U.S. 354 (1957); UNITED STATES V. MORGAN,
346 U.S. 502 (1954); FISWICK V. UNITED STATES, 329 U.S. 211 (1946). 
THUS MERE RELEASE OF THE PRISONER DOES NOT MECHANICALLY FORECLOSE
CONSIDERATION OF THE MERITS BY THIS COURT. 

ST. PIERRE ITSELF RECOGNIZED TWO POSSIBLE EXCEPTIONS TO ITS
"DOCTRINE" OF MOOTNESS, AND BOTH OF THEM APPEAR TO US TO BE APPLICABLE
HERE.  THE COURT STATED THAT "(IT DOES NOT APPEAR THAT PETITIONER COULD
NOT HAVE BROUGHT HIS CASE TO THIS COURT FOR REVIEW BEFORE THE
EXPIRATION OF HIS SENTENCE," NOTING ALSO THAT BECAUSE THE PETITIONER'S
CONVICTION WAS FOR CONTEMPT AND BECUASE HIS CONTROVERSY WITH THE
GOVERNMENT WAS A CONTINUING ONE, THERE WAS A GOOD CHANCE THAT THERE
WOULD BE "AMPLE OPPORTUNITY TO REVIEW" THE IMPORTANT QUESTION PRESENTED
ON THE MERITS IN A FUTURE PROCEEDING.  319 U.S.,AT 43.  THIS WAS A
PLAIN RECOGNITION OF THE VITAL IMPORTANCE OF KEEPING OPEN AVENUES OF
JUDICIAL REVIEW OF DEPRIVATIONS OF CONSTITUTIONAL RIGHT.  /9/  THERE
WAS NO WAY FOR SIBRON TO BRING HIS CASE HERE BEFORE HIS SIX-MONTH
SENTENCE EXPIRED.  BY STATUTE HE WAS PRECLUDED FROM OBTAINING BAIL
PENDING APPEAL, /10/  AND BY VIRTUE OF THE INEVITABLE DELAYS OF THE NEW
YORK COURT SYSTEM, HE WAS RELEASED LESS THAN A MONTH AFTER HIS NEWLY
APPOINTED APPELLATE COUNSEL HAD BEEN SUPPLIED WITH A COPY OF THE
TRANSCRIPT AND ROUGHLY TWO MONTHS BEFORE IT WAS PHYSICALLY POSSIBLE TO
PRESENT HIS CASE TO THE FIRST TIER IN THE STATE APPELLATE COURT
SYSTEM.  /11/  THIS WAS TRUE DESPITE THE FACT THAT HE TOOK ALL STEPS TO
PERFECT HIS APPEAL IN A PROMPT, DILIGENT, AND TIMELY MANNER. 

MANY DEEP AND ABIDING CONSTITUTIONAL PROBLEMS ARE ENCOUNTERED
PRIMARILY AT A LEVEL OF "LOW VISIBILITY" IN THE CRIMINAL PROCESS IN THE
CONTEXT OF PROSECUTIONS FOR "MINOR" OFFENSES WHICH CARRY ONLY SHORT
SENTENCES.  /12/  WE DO NOT BELIEVE THAT THE CONSTITUTION CONTEMPLATES
THAT PEOPLE DEPRIVED OF CONSTITUTIONAL RIGHTS AT THIS LEVEL SHOULD BE
LEFT UTTERLY REMEDILESS AND DEFENSELESS AGAINST REPETITIONS OF
UNCONSTITUTIONAL CONDUCT.  A STATE MAY NOT CUT OFF FEDERAL REVIEW OF
WHOLE CLASSES OF SUCH CASES BY THE SIMPLE EXPEDIENT OF A BLANKET DENIAL
OF BAIL PENDING APPEAL.  AS ST. PIERRE CLEARLY RECOGNIZED, A STATE MAY
NOT EFFECTIVELY DENY A CONVICT ACCESS TO ITS APPELLATE COURTS UNTIL HE
HAS BEEN RELEASED AND THEN ARGUE THAT HIS CASE HAS BEEN MOOTED BY HIS
FAILURE TO DO WHAT IT ALONE PREVENTED HIM FROM DOING.  /13/     THE
SECOND EXCEPTION RECOGNIZED IN ST. PIERRE PERMITS ADJUDICATION OF THE
MERITS OF A CRIMINAL CASE WHERE "UNDER EITHER STATE OR FEDERAL LAW
FURTHER PENALTIES OR DISABILITIES CAN BE IMPOSED . . . AS A RESULT OF
THE JUDGMENT WHICH HAS . . . BEEN SATISFIED."  310 U.S.,AT 43. 
SUBSEQUENT CASES HAVE EXPANDED THIS EXCEPTION TO THE POINT WHERE IT MAY
REALISTICALLY BE SAID THAT INROADS HAVE BEEN MADE UPON THE PRINCIPLE
ITSELF.  ST. PIERRE IMPLIED THAT THE BURDEN WAS UPON THE CONVICT TO
SHOW THE EXISTENCE OF COLLATERAL LEGAL CONSEQUENCES.  THREE YEARS LATER
IN FISWICK V. UNITED STATES, 329 U.S. 211 (1946), HOWEVER, THE COURT
HELD THAT A CRIMINAL CASE HAD NOT BECOME MOOT UPON RELEASE OF THE
PRISONER, NOTING THAT THE CONVICT, AN ALIEN, MIGHT BE SUBJECT TO
DEPORTATION FOR HAVING COMMITTED A CRIME OF "MORAL TURPITUDE"-- EVEN
THOUGH IT HAD NEVER BEEN HELD (AND THE COURT REFUSED TO HOLD) THAT THE
CRIME OF WHICH HE WAS CONVICTED FELL INTO THIS CATEGORY.  THE COURT
ALSO POINTED TO THE FACT THAT IF THE PETITIONER SHOULD IN THE FUTURE
DECIDE HE WANTED TO BECOME AN AMERICAN CITIZEN, HE MIGHT HAVE
DIFFICULTY PROVING THAT HE WAS OF "GOOD MORAL CHARACTER."  ID., AT
222.  /14/

THE NEXT CASE WHICH DEALT WITH THE PROBLEM OF COLLATERAL
CONSEQUENCES WAS UNITED STATES V. MORGAN, 346 U.S. 502 (1954).  THERE
THE CONVICT HAD PROBABLY BEEN SUBJECTED TO A HIGHER SENTENCE AS A
RECIDIVIST BY A STATE COURT ON ACCOUNT OF THE OLD FEDERAL CONVICTION
WHICH HE SOUGHT TO ATTACK.  BUT AS THE DISSENT POINTED OUT, THERE WAS
NO INDICATION THAT THE RECIDIVIST INCREMENT WOULD BE REMOVED FROM HIS
STATE SENTENCE UPON INVALIDATION OF THE FEDERAL CONVICTION, ID., AT
516, N. 4, AND THE COURT CHOSE TO REST ITS HOLDING THAT THE CASE WAS
NOT MOOT UPON A BROADER VIEW OF THE MATTER.  WITHOUT CANVASSING THE
POSSIBLE DISABILITIES WHICH MIGHT BE IMPOSED UPON MORGAN OR ALLUDING
SPECIFICALLY TO THE RECIDIVIST SENTENCE, THE COURT STATED: 

     "ALTHOUGH THE TERM HAS BEEN SERVED, THE RESULTS OF THE

  CONVICTION MAY PERSIST.  SUBSEQUENT CONVICTIONS MAY CARRY HEAVIER

  PENALTIES, CIVIL RIGHTS MAY BE AFFECTED.  AS THE POWER TO REMEDY

  AN INVALID SENTENCE EXISTS, WE THINK, RESPONDENT IS ENTITLED TO

  AN OPPORTUNITY TO ATTEMPT TO SHOW THAT THIS CONVICTION WAS

INVALID."  ID., AT 512-513. 

THREE YEARS LATER, IN POLLARD V. UNITED STATES, 352 U.S. 354 (1957),
THE COURT ABANDONED ALL INQUIRY INTO THE ACTUAL EXISTENCE OF SPECIFIC
COLLATERAL CONSEQUENCES AND IN EFFECT PRESUMED THAT THEY EXISTED.  WITH
NOTHING MORE THAN CITATIONS TO MORGAN AND FISWICK, AND A STATEMENT THAT
"CONVICTIONS MAY ENTAIL COLLATERAL LEGAL DISADVANTAGES IN THE FUTURE,"
ID., AT 358, THE COURT CONCLUDED THAT "(THE POSSIBILITY OF CONSEQUENCES
COLLATERAL TO THE IMPOSITION OF SENTENCE IS SUFFICIENTLY SUBSTANTIAL TO
JUSTIFY OUR DEALING WITH THE MERITS."  IBID.  THE COURT THUS
ACKNOWLEDGED THE OBVIOUS FACT OF LIFE THAT MOST CRIMINAL CONVICTIONS DO
IN FACT ENTAIL ADVERSE COLLATERAL LEGAL CONSEQUENCES.  /15/  THE MERE
"POSSIBILITY" THAT THIS WILL BE THE CASE IS ENOUGH TO PRESERVE A
CRIMINAL CASE FROM ENDING "IGNOMINIOUSLY IN THE LIMBO OF MOOTNESS." 
PARKER V. ELLIS, 362 U.S. 574, 577 (1960) (DISSENTING OPINION). 

THIS CASE CERTAINLY MEETS THAT TEST FOR SURVIVAL.  WITHOUT PAUSING
TO CANVASS THE POSSIBILITIES IN DETAIL, WE NOTE THAT NEW YORK EXPRESSLY
PROVIDES BY STATUTE THAT SIBRON'S CONVICTION MAY BE USED TO IMPEACH HIS
CHARACTER SHOULD HE CHOOSE TO PUT IT IN ISSUE AT ANY FUTURE CRIMINAL
TRIAL, N.Y. CODE CRIM. PROC. SEC. 393-C, AND THAT IT MUST BE SUBMITTED
TO A TRIAL JUDGE FOR HIS CONSIDERATION IN SENTENCING SHOULD SIBRON
AGAIN BE CONVICTED OF A CRIME, N.Y. CODE CRIM. PROC. SEC. 482.  THERE
ARE DOUBTLESS OTHER COLLATERAL CONSEQUENCES.  MOREOVER, WE SEE NO
RELEVANCE IN THE FACT THAT SIBRON IS A MULTIPLE OFFENDER.  MORGAN WAS A
MULTIPLE OFFENDER, SEE 346 U.S.AT 503-504, AND SO WAS POLLARD, SEE 352
U.S.,AT 355-357.  A JUDGE OR JURY FACED WITH A QUESTION OF CHARACTER,
LIKE A SENTENCING JUDGE, AMY BE INCLINED TO FORGIVE OR AT LEAST
DISCOUNT A LIMITED NUMBER OF MINOR TRANSGRESSIONS, PARTICULARLY IF THEY
OCCURRED AT SOME TIME IN THE RELATIVELY DISTANT PAST.  /16/  IT IS
IMPOSSIBLE FOR THIS COURT TO SAY AT WHAT POINT THE NUMBER OF
CONVICTIONS ON A MAN'S RECORD RENDERS HIS REPUTATION IRREDEEMABLE. 
/17/  AND EVEN IF WE BELIEVED THAT AN INDIVIDUAL HAD REACHED THAT
POINT, IT WOULD BE IMPOSSIBLE FOR US TO SAY THAT HE HAD NO INTEREST IN
BEGINNING THE PROCESS OF REDEMPTION WITH THE PARTICULAR CASE SOUGHT TO
BE ADJUDICATED.  WE CANNOT FORETELL WHAT OPPORTUNITIES MIGHT PRESENT
THEMSELVES IN THE FUTURE FOR THE REMOVAL OF OTHER CONVICTIONS FROM AN
INDIVIDUAL'S RECORD.  THE QUESTION OF THE VALIDITY OF A CRIMINAL
CONVICTION CAN ARISE IN MANY CONTEXTS, COMPARE BURGETT V. TEXAS, 389
U.S. 109 (1967), AND THE SOONER THE ISSUE IS FULLY LITIGATED THE BETTER
FOR ALL CONCERNED.  IT IS ALWAYS PREFERABLE TO LITIGATE A MATTER WHEN
IT IS DIRECTLY AND PRINCIPALLY IN DISPUTE, RATHER THAN IN A PROCEEDING
WHERE IT IS COLLATERAL TO THE CENTRAL CONTROVERSY.  MOREOVER,
LITIGATION IS BETTER CONDUCTED WHEN THE DISPUTE IS FRESH AND ADDITIONAL
FACTS MAY, IF NECESSARY, BE TAKEN WITHOUT A SUBSTANTIAL RISK THAT
WITNESSES WILL DIE OR MEMORIES FADE.  AND IT IS FAR BETTER TO ELIMINATE
THE SOURCE OF A POTENTIAL LEGAL DISABILITY THAN TO REQUIRE THE CITIZEN
TO SUFFER THE POSSIBLY UNJUSTIFIED CONSEQUENCES OF THE DISABILITY
ITSELF FOR AN INDEFINITE PERIOD OF TIME BEFORE HE CAN SECURE
ADJUDICATION OF THE STATE'S RIGHT TO IMPOSE IT ON THE BASIS OF SOME
PAST ACTION.  CF. PEYTON V. ROWE, 391 U.S. 54, 64 (1968).  /18/ 

NONE OF THE CONCEDEDLY IMPERATIVE POLICIES BEHIND THE CONSTITUTIONAL
RULE AGAINST ENTERTAINING MOOT CONTROVERSIES WOULD BE SERVED BY A
DISMISSAL IN THIS CASE.  THERE IS NOTHING ABSTRACT, FEIGNED, OR
HYPOTHETICAL ABOUT SIBRON'S APPEAL.  NOR IS THERE ANY SUGGESTION THAT
EITHER SIBRON OR THE STATE HAS BEEN WANTING IN DILIGENCE OR FERVOR IN
THE LITIGATION.  WE HAVE BEFORE US A FULLY DEVELOPED RECORD OF
TESTIMONY ABOUT CONTESTED HISTORICAL FACTS, WHICH REFLECTS THE "IMPACT
OF ACTUALITY"  /19/  TO A FAR GREATER DEGREE THAN MANY CONTROVERSIES
ACCEPTED FOR ADJUDICATION AS A MATTER OF COURSE UNDER THE FEDERAL
DECLARATORY JUDGMENT ACT, 28 U.S.C. 2201. 

ST. PIERRE V. UNITED STATES, SUPRA, MUST BE READ IN LIGHT OF LATER
CASES TO MEAN THAT A CRIMINAL CASE IS MOOT ONLY IF IT IS SHOWN THAT
THERE IS NO POSSIBILITY THAT ANY COLLATERAL LEGAL CONSEQUENCES WILL BE
IMPOSED ON THE BASIS OF THE CHALLENGED CONVICTION.  THAT CERTAINLY IS
NOT THE CASE HERE.  SIBRON "HAS A SUBSTANTIAL STAKE IN THE JUDGMENT OF
CONVICTION WHICH SURVIVES THE SATISFACTION OF THE SENTENCE IMPOSED ON
HIM."  FISWICK V. UNITED STATES, SUPRA, AT 222.  THE CASE IS NOT MOOT. 

        II. 

WE DEAL NEXT WITH THE CONFESSION OF ERROR BY THE DISTRICT ATTORNEY
FOR KINGS COUNTY IN NO. 63.  CONFESSIONS OF ERROR ARE, OF COURSE,
ENTITLED TO AND GIVEN GREAT WEIGHT, BUT THEY DO NOT "RELIEVE THIS COURT
OF THE PERFORMANCE OF THE JUDICIAL FUNCTION."  YOUNG V. UNITED STATES,
315 U.S. 257, 258 (1942).  IT IS THE UNIFORM PRACTICE OF THIS COURT TO
CONDUCT ITS OWN EXAMINATION OF THE RECORD IN ALL CASES WHERE THE
FEDERAL GOVERNMENT OR A STATE CONFESSES THAT A CONVICTION HAS BEEN
ERRONEOUSLY OBTAINED.  FOR ONE THING, AS WE NOTED IN YOUNG, "OUR
JUDGMENTS ARE PRECEDENTS, AND THE PROPER ADMINISTRATION OF THE CRIMINAL
LAW CANNOT BE LEFT MERELY TO THE STIPULATION OF PARTIES."  315 U.S.,AT
259.  SEE ALSO MARINO V. RAGEN, 332 U.S. 561 (1947).  THIS
CONSIDERATION IS ENTITLED TO SPECIAL WEIGHT WHERE, AS IN THIS CASE, WE
DEAL WITH A JUDGMENT OF A STATE'S HIGHEST COURT INTERPRETING A STATE
STATUTE WHICH IS CHALLENGED ON CONSTITUTIONAL GROUNDS.  THE NEED FOR
SUCH AUTHORITATIVE DECLARATIONS OF STATE LAW IN SENSITIVE
CONSTITUTIONAL CONTEXTS HAS BEEN THE VERY REASON FOR THE DEVELOPMENT OF
THE ABSTENTION DOCTRINE BY THIS COURT.  SEE, E.G., RAILROAD COMM'N V.
PULLMAN CO., 312 U.S. 496 (1941).  SUCH A JUDGMENT IS THE FINAL PRODUCT
OF A SOVEREIGN JUDICIAL SYSTEM, AND IS DESERVING OF RESPECTFUL
TREATMENT BY THIS COURT.  MOREOVER, IN THIS CASE THE CONFESSION OF
ERROR ON BEHALF OF THE ENTIRE STATE EXECUTIVE AND JUDICIAL BRANCHES IS
MADE, NOT BY A STATE OFFICIAL, BUT BY THE ELECTED LEGAL OFFICER OF ONE
POLITICAL SUBDIVISION WITHIN THE STATE.  THE DISTRICT ATTORNEY FOR
KINGS COUNTY SEEMS TO HAVE COME LATE TO THE OPINION THAT THIS
CONVICTION VIOLATED SIBRON'S CONSTITUTIONAL RIGHTS.  FOR US TO ACCEPT
HIS VIEW BLINDLY IN THE CIRCUMSTANCES, WHEN A MAJORITY OF THE COURT OF
APPEALS OF NEW YORK HAS EXPRESSED THE CONTRARY VIEW, WOULD BE A
DISSERVICE TO THE STATE OF NEW YORK AND AN ABDICATION OF OUR OBLIGATION
TO LOWER COURTS TO DECIDE CASES UPON PROPER CONSTITUTIONAL GROUNDS IN A
MANNER WHICH PERMITS THEM TO CONFORM THEIR FUTURE BEHAVIOR TO THE
DEMANDS OF THE CONSTITUTION.  WE TURN TO THE MERITS. 

III. 

THE PARTIES ON BOTH SIDES OF THESE TWO CASES HAVE URGED THAT THE
PRINCIPAL ISSUE BEFORE US IS THE CONSTITUTIONALITY OF SEC. 180-A "ON
ITS FACE."  WE DECLINE, HOWEVER, TO BE DRAWN INTO WHAT WE VIEW AS THE
ABSTRACT AND UNPRODUCTIVE EXERCISE OF LAYING THE EXTRAORDINARILY
ELASTIC CATEGORIES OF SEC. 180-A NEXT TO THE CATAGORIES OF THE FOURTH
AMENDMENT IN AN EFFORT TO DETERMINE WHETHER THE TWO ARE IN SOME SENSE
COMPATIBLE.  THE CONSTITUTIONAL VALIDITY OF A WARRANTLESS SEARCH IS PRE
EMINENTLY THE SORT OF QUESTION WHICH CAN ONLY BE DECIDED IN THE
CONCRETE FACTUAL CONTEXT OF THE INDIVIDUAL CASE.  IN THIS RESPECT IT IS
QUITE DIFFERENT FROM THE QUESTION OF THE ADEQUACY OF THE PROCEDURAL
SAFEGUARDS WRITTEN INTO A STATUTE WHICH PURPORTS TO AUTHORIZE THE
ISSUANCE OF SEARCH WARRANTS IN CERTAIN CIRCUMSTANCES.  SEE BERGER V.
NEW YORK, 388 U.S. 41 (1967).  NO SEARCH REQUIRED TO BE MADE UNDER A
WARRANT IS VALID IF THE PROCEDURE FOR THE ISSUANCE OF THE WARRANT IS
INADEQUATE TO ENSURE THE SORT OF NEUTRAL CONTEMPLATION BY A MAGISTRATE
OF THE GROUNDS FOR THE SEARCH AND ITS PROPOSED SCOPE, WHICH LIES AT THE
HEART OF THE FOURTH AMENDMENT.  E.G., AGUILAR V. TEXAS, 378 U.S. 108
(1964); GIORDENELLO V. UNITED STATES, 357 U.S. 480 (1958).  THIS COURT
HELD LAST TERM IN BERGER V. NEW YORK, SUPRA, THAT N.Y. CODE CRIM. PROC.
SEC. 813-A, WHICH ESTABLISHED A PROCEDURE FOR THE ISSUANCE OF SEARCH
WARRANTS TO PERMIT ELECTRONIC EAVESDROPPING, FAILED TO EMBODY THE
SAFEGUARDS DEMANDED BY THE FOURTH AND FOURTEENTH AMENDMENTS. 

VALIDITY OF CERTAIN TYPES OF SEIZURES AND SEARCHES WITHOUT WARRANTS. 
IT PURPORTS TO AUTHORIZE POLICE OFFICERS TO "STOP" PEOPLE, "DEMAND"
EXPLANATIONS OF THEM AND "SEARCH (THEM) FOR DANGEROUS WEAPONS)" IN
CERTAIN CIRCUMSTANCES UPON "REASONABLE SUSPICION" THAT THEY ARE ENGAGED
IN CRIMINAL ACTIVITY AND THAT THEY REPRESENT A DANGER TO THE
POLICEMAN.  THE OPERATIVE CATEGORIES OF SEC. 180-A ARE NOT THE
CATEGORIES OF THE FOURTH AMENDMENT, AND THEY ARE SUSCEPTIBLE OF A WIDE
VARIETY OF INTERPRETATIONS.  /20/  NEW YORK IS, OF COURSE, FREE TO
DEVELOP ITS OWN LAW OF SEARCH AND SEIZURE TO MEET THE NEEDS OF LOCAL
LAW ENFORCEMENT, SEE KER V. CALIFORNIA, 374 U.S. 23, 34 (1963), AND IN
THE PROCESS IT MAY CALL THE STANDARDS IT EMPLOYES BY ANY NAMES IT MAY
CHOOSE.  IT MAY NOT, HOWEVER, AUTHORIZE POLICE CONDUCT WHICH TRENCHES
UPON FOURTH AMENDMENT RIGHTS, REGARDLESS OF THE LABELS WHICH IT
ATTACHES TO SUCH CONDUCT.  THE QUESTION IN THIS COURT UPON REVIEW OF A
STATE-APPROVED SEARCH OR SEIZURE "IS NOT WHETHER THE SEARCH (OR
SEIZURE) WAS AUTHORIZED BY STATE LAW.  THE QUESTION IS RATHER WHETHER
THE SEARCH WAS REASONABLE UNDER THE FOURTH AMENDMENT.  JUST AS A SEARCH
AUTHORIZED BY STATE LAW MAY BE AN UNREASONABLE ONE UNDER THAT
AMENDMENT, SO MAY A SEARCH NOT EXPRESSLY AUTHORIZED BY STATE LAW BE
JUSTIFIED AS A CONSTITUTIONALLY REASONABLE ONE."  COOPER V. CALIFORNIA,
386 U.S. 58, 61 (1967). 

ACCORDINGLY, WE MAKE NO PRONOUNCEMENT ON THE FACIAL
CONSTITUTIONALITY OF SEC. 180-A.  THE CONSTITUTIONAL POINT WITH RESPECT
TO A STATUTE OF THIS PECULIAR SORT, AS THE COURT OF APPEALS OF NEW YORK
RECOGNIZED, IS "NOT SO MUCH . . . THE LANGUAGE EMPLOYED AS . . . THE
CONDUCT IT AUTHORIZES."  PEOPLE V. PETERS, 18 N.Y.2D 238, 245, 219
N.E.2D 595, 599, 273 N.Y.S.2D 217, 222 (1966).  WE HAVE HELD TODAY IN
TERRY V. OHIO, ANTE, P. 1, THAT POLICE CONDUCT OF THE SORT WITH WHICH
SEC. 180-A DEALS MUST BE JUDGED UNDER THE REASONABLE SEARCH AND SEIZURE
CLAUSE OF THE FOURTH AMENDMENT.  THE INQUIRY UNDER THAT CLAUSE MAY
DIFFER SHARPLY FROM THE INQUIRY SET UP BY THE CATEGORIES OF SEC. 180-A.
OUR CONSTITUTIONAL INQUIRY WOULD NOT BE FURTHERED HERE BY AN ATTEMPT
TO PRONOUNCE JUDGMENT ON THE WORDS OF THE STATUTE.  WE MUST CONFICE OUR
REVIEW INSTEAD TO THE REASONABLENESS OF THE SEARCHES AND SEIZURES WHICH
UNDERLIE THESE TWO CONVICTIONS. 

        IV. 

TURNING TO THE FACTS OF SIBRON'S CASE, IT IS CLEAR THAT THE HEROIN
WAS INADMISSIBLE IN EVIDENCE AGAINST HIM.  THE PROSECUTION HAS QUITE
PROPERLY ABANDONED THE NOTION THAT THERE WAS PROBABLE CAUSE TO ARREST
SIBRON FOR ANY CRIME AT THE TIME PATROLMAN MARTIN ACCOSTED HIM IN THE
RESTAURANT, TOOK HIM OUTSIDE AND SEARCHED HIM.  THE OFFICER WAS NOT
ACQUAINTED WITH SIBRON AND HAD NO INFORMATION CONCERNING HIM.  HE
MERELY SAW SIBRON TALKING TO A NUMBER OF KNOWN NARCOTICS ADDICTS OVER A
PERIOD OF EIGHT HOURS.  IT MUST BE EMPHASIZED THAT PATROLMAN MARTIN WAS
COMPLETELY IGNORANT REGARDING THE CONTENT OF THESE CONVERSATIONS, AND
THAT HE SAW NOTHING PASS BETWEEN SIBRON AND THE ADDICTS.  SO FAR AS HE
KNEW, THEY MIGHT INDEED "HAVE BEEN TALKING ABOUT THE WORLD SERIES." 
THE INFERENCE THAT PERSONS WHO TALK TO NARCOTICS ADDICTS ARE ENGAGED IN
THE CRIMINAL TRAFFIC IN NARCOTICS IS SIMPLY NOT THE SORT OF REASONABLE
INFERENCE REQUIRED TO SUPPORT AN INTRUSION BY THE POLICE UPON AN
INDIVIDUAL'S PERSONAL SECURITY.  NOTHING RESEMBLING PROBABLE CAUSE
EXISTED UNTIL AFTER THE SEARCH HAD TURNED UP THE ENVELOPES OF HEROIN. 
IT IS AXIOMATIC THAT AN INCIDENT SEARCH MAY NOT PRECEDE AN ARREST AND
SERVE AS PART OF ITS JUSTIFICATION.  E.G., HENRY V. UNITED STATES, 361
U.S. 98 (1959); JOHNSON V. UNITED STATES, 333 U.S. 10, 16-17 (1948). 
THUS THE SEARCH CANNOT BE JUSTIFIED AS INCIDENT TO A LAWFUL ARREST. 
IF PATROLMAN MARTIN LACKED PROBABLE CAUSE FOR AN ARREST, HOWEVER, HIS
SEIZURE AND SEARCH OF SIBRON MIGHT STILL HAVE BEEN JUSTIFIED AT THE
OUTSET IF HE HAD REASONABLE GROUNDS TO BELIEVE THAT SIBRON WAS ARMED
AND DANGEROUS.  TERRY V. OHIO, ANTE, P. 1.  WE ARE NOT CALLED UPON TO
DECIDE IN THIS CASE WHETHER THERE WAS A "SEIZURE" OF SIBRON INSIDE THE
RESTAURANT ANTECEDENT TO THE PHYSICAL SEIZURE WHICH ACCOMPANIED THE
SEARCH.  THE RECORD IS UNCLEAR WITH RESPECT TO WHAT TRANSPIRED BETWEEN
SIBRON AND THE OFFICER INSIDE THE RESTAURANT.  IT IS TOTALLY BARREN OF
ANY INDICATION WHETHER SIBRON ACCOMPANIED PATROLMAN MARTIN OUTSIDE IN
SUBMISSION TO A SHOW OF FORCE OR AUTHORITY WHICH LEFT HIM NO CHOICE, OR
WHETHER HE WENT VOLUNTARILY IN A SPIRIT OF APPARENT COOPERATION WITH
THE OFFICER'S INVESTIGATION.  IN ANY EVENT, THIS DEFICIENCY IN THE
RECORD IS IMMATERIAL, SINCE PATROLMAN MARTIN OBTAINED NO NEW
INFORMATION IN THE INTERVAL BETWEEN HIS INITIATION OF THE ENCOUNTER IN
THE RESTAURANT AND HIS PHYSICAL SEIZURE AND SEARCH OF SIBRON OUTSIDE. 

ALTHOUGH THE COURT OF APPEALS OF NEW YORK WROTE NO OPINION IN THIS
CASE, IT SEEMS TO HAVE VIEWED THE SEARCH HERE AS A SELF-PROTECTIVE
SEARCH FOR WEAPONS AND TO HAVE AFFIRMED ON THE BASIS OF SEC. 180-A,
WHICH AUTHORIZED SUCH A SEARCH WHEN THE OFFICER "REASONABLY SUSPECTS
THAT HE IS IN DANGER OF LIFE OR LIMB."  THE COURT OF APPEALS HAS, AT
ANY RATE, JUSTIFIED SEARCHES DURING FIELD INTERROGATION ON THE GROUND
THAT "(THE ANSWER TO THE QUESTION PROPOUNDED BY THE POLICEMAN MAY BE A
BULLET; IN ANY CASE THE EXPOSURE TO DANGER COULD BE VERY GREAT." 
PEOPLE V. RIVERA, 14 N.Y.2D 441, 446, 201 N.E.2D 32, 35, 252 N.Y.S.2D
458, 463 (1964), CERT. DENIED, 379 U.S. 978 (1965).  BUT THE
APPLICATION OF THIS REASONING TO THE FACTS OF THIS CASE PROVES TOO
MUCH.  THE POLICE OFFICER IS NOT ENTITLED TO SEIZE AND SEARCH EVERY
PERSON WHOM HE SEES ON THE STREET OR OF WHOM HE MAKES INQUIRIES. 
BEFORE HE PLACES A HAND ON THE PERSON OF A CITIZEN IN SEARCH OF
ANYTHING, HE MUST HAVE CONSTITUTIONALLY ADEQUATE, REASONABLE GROUNDS
FOR DOING SO.  IN THE CASE OF THE SELF-PROTECTIVE SEARCH FOR WEAPONS,
HE MUST BE ABLE TO POINT TO PARTICULAR FACTS FROM WHICH HE REASONABLY
INFERRED THAT THE INDIVIDUAL WAS ARMED AND DANGEROUS.  TERRY V. OHIO,
SUPRA.  PATROLMAN MARTIN'S TESTIMONY REVEALS NO SUCH FACTS.  THE
SUSPECT'S MERE ACT OF TALKING WITH A NUMBER OF KNOWN NARCOTICS ADDICTS
OVER AN EIGHT-HOUR PERIOD NO MORE GIVES RISE TO REASONABLE FEAR OF LIFE
OR LIMB ON THE PART OF THE POLICE OFFICER THAN IT JUSTIFIED AS AREEST
FOR COMMITTING A CRIME.  NOR DID PATROLMAN MARTIN URGE THAT WHEN SIBRON
PUT HIS HAND IN HIS POCKET, HE FEARED THAT HE WAS GOING FOR A WEAPON
AND ACTED IN SELF-DEFENSE.  HIS OPENING STATEMENT TO SIBRON-- "YOU KNOW
WHAT I AM AFTER"-- MADE IT ABUNDANTLY CLEAR THAT HE SOUGHT NARCOTICS,
AND HIS TESTIMONY AT THE HEARING LEFT NO DOUBT THAT HE THOUGHT THERE
WERE NARCOTICS IN SIBRON'S POCKET.  /21/ 

EVEN ASSUMING ARGUENDO THAT THERE WERE ADEQUATE GROUNDS TO SEARCH
SIBRON FOR WEAPONS, THE NATURE AND SCOPE OF THE SEARCH CONDUCTED BY
PATROLMAN MARTIN WAS SO CLEARLY UNRELATED TO THAT JUSTIFICATION AS TO
RENDER THE HEROIN INADMISSIBLE.  THE SEARCH FOR WEAPONS APPROVED IN
TERRY CONSISTED SOLELY OF A LIMITED PATTING OF THE OUTER CLOTHING OF
THE SUSPECT FOR CONCEALED OBJECTS WHICH MIGHT BE USED AS INSTRUMENTS OF
ASSAULT.  ONLY WHEN HE DISCOVERED SUCH OBJECTS DID THE OFFICER IN TERRY
PLACE HIS HANDS IN THE POCKETS OF THE MEN HE SEARCHED.  IN THIS CASE,
WITH NO ATTEMPT AT AN INITIAL LIMITED EXPLORATION FOR ARMS, PATROLMAN
MARTIN THRUST HIS HAND INTO SIBRON'S POCKET AND TOOK FROM HIM ENVELOPES
OF HEROIN.  HIS TESTIMONY SHOWS THAT HE WAS LOOKING FOR NARCOTICS, AND
HE FOUND THEM.  THE SEARCH WAS NOT REASONABLY LIMITED IN SCOPE TO THE
ACCOMPLISHMENT OF THE ONLY GOAL WHICH MIGHT CONCEIVABLY HAVE JUSTIFIED
ITS INCEPTION-- THE PROTECTION OF THE OFFICER BY DISARMING A
POTENTIALLY DANGEROUS MAN.  SUCH A SEARCH VIOLATES THE GUARANTEE OF THE
FOURTH AMENDMENT, WHICH PROTECTS THE SANCTITY OF THE PERSON AGAINST
UNREASONABLE INTRUSIONS ON THE PART OF ALL GOVERNMENT AGENTS. 

        V. 

WE THINK IT IS EQUALLY CLEAR THAT THE SEARCH IN PETERS' CASE WAS
WHOLLY REASONABLE UNDER THE CONSTITUTION.  THE COURT OF APPEALS OF NEW
YORK HELD THAT THE SEARCH WAS MADE LEGAL BY SEC. 180-A, SINCE PETERS
WAS "ABROAD IN A PUBLIC PLACE," AND SINCE OFFICER LASKY WAS REASONABLY
SUSPICIOUS OF HIS ACTIVITIES AND, ONCE HE HAD STOPPED PETERS,
REASONABLY SUSPECTED THAT HE WAS IN DANGER OF LIFE OR LIMB, EVEN THOUGH
HE HELD PETERS AT GUN POINT.  THIS MAY BE THE JUSTIFICATION FOR THE
SEARCH UNDER STATE LAW.  WE THINK, HOWEVER, THAT FOR PURPOSES OF THE
FOURTH AMENDMENT THE SEARCH WAS PROPERLY INCIDENT TO A LAWFUL ARREST. 
BY THE TIME OFFICER LASKY CAUGHT UP WITH PETERS ON THE STAIRWAY BETWEEN
THE FOURTH AND FIFTH FLOORS OF THE APARTMENT BUILDING, HE HAD PROBABLE
CAUSE TO ARREST HIM FOR ATTEMPTED BURGLARY.  THE OFFICER HEARD STRANGE
NOISES AT HIS DOOR WHICH APPARENTLY LED HIM TO BELIEVE THAT SOMEONE
SOUGHT TO FORCE ENTRY.  WHEN HE INVESTIGATED THESE NOISES HE SAY TWO
MEN, WHOM HE HAD NEVER SEEN BEFORE IN HIS 12 YEARS IN THE BUILDING,
TIPTOEING FURTIVELY ABOUT THE HALLWAY.  THEY WERE STILL ENGAGED IN
THESE MANEUVERS AFTER HE CALLED THE POLICE AND DRESSED HURRIEDLY.  AND
WHEN OFFICER LASKY ENTERED THE HALLWAY, THE MEN FLED DOWN THE STAIRS. 
IT IS DIFFICULT TO CONCEIVE OF STRONGER GROUNDS FOR AN ARREST, SHORT OF
ACTUAL EYEWITNESS OBSERVATION OF CRIMINAL ACTIVITY.  AS THE TRIAL COURT
EXPLICITLY RECOGNIZED, /22/  DELIBERATELY FURTIVE ACTIONS AND FLIGHT AT
THE APPROACH OF STRANGERS OR LAW OFFICERS ARE STRONG INDICIA OF MENS
REA, AND WHEN COUPLED WITH SPECIFIC KNOWLEDGE ON THE PART OF THE
OFFICER RELATING THE SUSPECT TO THE EVIDENCE OF CRIME, THEY ARE PROPER
FACTORS TO BE CONSIDERED IN THE DECISION TO MAKE AN ARREST.  BRINEGAR
V. UNITED STATES, 338 U.S. 160 (1949); HUSTY V. UNITED STATES, 282 U.S.
694 (1931); SEE HENRY V. UNITED STATES, 361 U.S. 98, 103 (1959). 

AS WE NOTED IN SIBRON'S CASE, A SEARCH INCIDENT TO A LAWFUL ARREST
MAY NOT PRECEDE THE ARREST AND SERVE AS PART OF ITS JUSTIFICATION.  IT
IS A QUESTION OF FACT PRECISELY WHEN, IN EACH CASE, THE ARREST TOOK
PLACE.  RIOS V. UNITED STATES, 364 U.S. 253, 261-262 (1960).  AND WHILE
THERE WAS SOME INCONCLUSIVE DISCUSSION IN THE TRIAL COURT CONCERNING
WHEN OFFICER LASKY "ARRESTED" PETERS, IT IS CLEAR THAT THE ARREST HAD,
FOR PURPOSES OF CONSTITUTIONAL JUSTIFICATION, ALREADY TAKEN PLACE
BEFORE THE SEARCH COMMENCED.  WHEN THE POLICEMAN GRABBED PETERS BY THE
COLLAR, HE ABRUPTLY "SEIZED" HIM AND CURTAILED HIS FREEDOM OF MOVEMENT
ON THE BASIS OF PROBABLE CAUSE TO BELIEVE THAT HE WAS ENGAGED IN
CRIMINAL ACTIVITY.  SEE HENRY V. UNITED STATES, SUPRA, AT 103.  AT THAT
POINT HE HAD THE AUTHORITY TO SEARCH PETERS, AND THE INCIDENT SEARCH
WAS OBVIOUSLY JUSTIFIED "BY THE NEED TO SEIZE WEAPONS AND OTHER THINGS
WHICH MIGHT BE USED TO ASSAULT AN OFFICER OR EFFECT AN ESCAPE, AS WELL
AS BY THE NEED TO PREVENT THE DESTRUCTION OF EVIDENCE OF THE CRIME." 
PRESTON V. UNITED STATES, 376 U.S. 364, 367 (1964).  MOREOVER, IT WAS
REASONABLY LIMITED IN SCOPE BY THESE PURPOSES.  OFFICER LASKY DID NOT
ENGAGE IN AN UNRESTRAINED AND THOROUGHLY-GOING EXAMINATION OF PETERS
AND HIS PERSONAL EFFECTS.  HE SEIZED HIM TO CUT SHORT HIS FLIGHT, AND
HE SEARCHED HIM PRIMARILY FOR WEAPONS.  WHILE PATTING DOWN HIS OUTER
CLOTHING, OFFICER LASKY DISCOVERED AN OBJECT IN HIS POCKET WHICH MIGHT
HAVE BEEN USED AS A WEAPON.  HE SEIZED IT AND DISCOVERED IT TO BE A
POTENTIAL INSTRUMENT OF THE CRIME OF BURGLARY. 

WE HAVE CONCLUDED THAT PETERS' CONVICTION FULLY COMPORTS WITH THE
COMMANDS OF THE FOURTH AND FOURTEENTH AMENDMENTS, AND MUST BE
AFFIRMED.  THE CONVICTION IN NO. 63, HOWEVER, MUST BE REVERSED, ON THE
GROUND THAT THE HEROIN WAS UNCONSTITUTIONALLY ADMITTED IN EVIDENCE
AGAINST THE APPELLANT. 

              IT IS SO ORDERED. 

/0/  TOGETHER WITH NO. 74, PETERS V. NEW YORK, ARGUED ON DECEMBER
12, 1967, ALSO ON APPEAL FROM THE SAME COURT. 

/1/  N.Y. PUB. HEALTH LAW SEC. 3305 MAKES THE UNAUTHORIZED
POSSESSION OF ANY NARCOTIC DRUG UNLAWFUL, AND SECS. 1751 AND 1751-A OF
THE N.Y. PENAL LAW OF 1909, THEN IN EFFECT, MADE THE GRADE OF THE
OFFENSE DEPEND UPON THE AMOUNT OF THE DRUGS FOUND IN THE POSSESSION OF
THE DEFENDANT.  THE COMPLAINT IN THIS CASE ORIGINALLY CHARGED A FELONY,
BUT THE TRIAL COURT GRANTED THE PROSECUTOR'S MOTION TO REDUCE THE
CHARGE ON THE GROUND THAT "THE LABORATORY REPORT WILL INDICATE A
MISDEAMEANOR CHARGE."  SIBRON WAS CONVICTED OF A MISDEMEANOR AND
SENTENCED TO SIX MONTHS IN JAIL. 

/2/  N.Y. CODE CRIM. PROC. SEC. 813-C PROVIDES THAT AN ORDER DENYING
A MOTION TO SUPPRESS EVIDENCE IN A CRIMINAL CASE "MAY BE REVIEWED ON
APPEAL FROM A JUDGMENT OF CONVICTION NOTWITHSTANDING THE FACT THAT SUCH
JUDGMENT OF CONVICTION IS PREDICATED UPON A PLEA OF GUILTY." 

/3/  PATROLMAN MARTIN STATED SEVERAL TIMES THAT HE PUT HIS HAND INTO
SIBRON'S POCKET AND SEIZED THE HEROIN BEFORE SIBRON HAD ANY OPPORTUNITY
TO REMOVE HIS OWN HAND FROM THE POCKET.  THE TRIAL COURT QUESTIONED HIM
ON THIS POINT: 

"Q.  WOULD YOU SAY AT THAT TIME THAT HE REACHED INTO HIS POCKET AND
HANDED THE PACKETS TO YOU?  IS THAT WHAT HE DID OR DID HE DROP THE
PACKETS? 

"A.  HE DID NOT DROP THEM.  I DO NOT KNOW WHAT HIS INTENTIONS WERE. 
HE PUSHED HIS HAND INTO HIS POCKET. 

"MR. JOSEPH (PROSECUTOR):  YOU INTERCEPTED IT; DIDN'T YOU, OFFICER? 

"THE WITNESS:  YES." 

IT IS OF COURSE HIGHLY UNLIKELY THAT SIBRON, FACING THE OFFICER AT
SUCH CLOSE QUARTERS, WOULD HAVE TRIED TO REMOVE THE HEROIN FROM HIS
POCKET AND THROW IT TO THE GROUND IN THE HOPE THAT HE COULD ESCAPE
RESPONSIBILITY FOR IT. 

/4/  THE POSSIBILITY THAT SIBRON, WHO NEVER, SO FAR AS APPEARS FROM
THE RECORD, OFFERED ANY RESISTANCE, MIGHT HAVE POSED A DANGER TO
PATROLMAN MARTIN'S SAFETY WAS NEVER EVEN DISCUSSED AS A POTENTIAL
JUSTIFICATION FOR THE SEARCH.  THE ONLY MENTION OF WEAPONS BY THE
OFFICER IN HIS ENTIRE TESTIMONY CAME IN RESPONSE TO A LEADING QUESTION
BY SIBRON'S COUNSEL, WHEN MARTIN STATED TAHT HE "THOUGHT HE (SIBRON)
MIGHT HAVE BEEN" REACHING FOR A GUN.  EVEN SO, PATROLMAN MARTIN DID NOT
ACCEPT THIS SUGGESTION BY THE OPPOSITION REGARDING THE REASON FOR HIS
ACTION; THE DISCUSSION CONTINUED UPON THE PLAIN PREMISE THAT HE HAD
BEEN LOOKING FOR NARCOTICS ALL THE TIME. 

/5/  N.Y. PEN.  LAW OF 1909, SEC. 408, MADE THE POSSESSION OF SUCH
TOOLS UNDER SUCH CIRCUMSTANCES A MISDEMEANOR FOR FIRST OFFENDERS AND A
FELONY FOR ALL THOSE WHO HAVE "BEEN PREVIOUSLY CONVICTED OF ANY
CRIME."  PETERS WAS CONVICTED OF A FELONY UNDER THIS SECTION. 

/6/  OFFICER LASKY TESTIFIED THAT WHEN HE CALLED THE POLICE
IMMEDIATELY BEFORE LEAVING HIS APARTMENT, HE "TOLD THE SERGEANT AT THE
DESK THAT TWO BURGLARS WERE ON MY FLOOR." 

/7/  OFFICER LASKY TESTIFIED THAT WHEN HE EMERGED FROM HIS
APARTMENT, "I SLAMMED THE DOOR, I HAD MY GUN AND I RAN DOWN THE STAIRS
AFTER THEM."  A SWORN AFFIDAVIT OF THE ASSISTANT DISTRICT ATTORNEY,
WHICH WAS BEFORE THE TRIAL COURT WHEN IT RULED ON THE MOTION TO
SUPPRESS, STATED THAT WHEN APPREHENDED PETERS WAS "FLEEING DOWN THE
STEPS OF THE BUILDING."  THE TRIAL COURT EXPLICITLY TOOK NOTE OF THE
FLIGHT OF PETERS AND HIS COMPANION AS A FACTOR CONTRIBUTING TO OFFICER
LASKY'S "REASONABLE SUSPICION" OF THEM: 

WE THINK THE TESTIMONY AT THE HEARING DOES NOT REQUIRE FURTHER
LABORING OF THIS ASPECT OF THE MATTER, UNLESS ONE IS TO BELIEVE THAT IT
IS LEGITIMATELY NORMAL FOR A MAN TO TIP-TOE ABOUT IN THE PUBLIC HALL OF
AN APARTMENT HOUSE WHILE ON A VISIT TO HIS UNIDENTIFIED GIRL-FRIEND,
AND, WHEN OBSERVED BY ANOTHER TENANT, TO RAPIDLY DESCEND BY STAIRWAY IN
THE PRESENCE OF ELEVATORS." 

/8/  THE FIRST SUGGESTION OF MOOTNESS IN THIS CASE CAME UPON ORAL
ARGUMENT, WHEN IT WAS REVEALED FOR THE FIRST TIME THAT APPELLANT HAD
BEEN RELEASED.  THIS FACT DID NOT APPEAR IN THE RECORD, DESPITE THE
FACT THAT THE RELEASE OCCURRED WELL OVER TWO YEARS BEFORE THE CASE WAS
ARGUED HERE.  NOR WAS MOOTNESS HINTED AT BY THE STATE IN ITS BRIEF IN
OPPOSITION TO THE JURISDICTIONAL STATEMENT IN THIS COURT-- WHERE IT
TOOK THE POSITION THAT THE DECISION BELOW WAS SO CLEARLY RIGHT THAT IT
DID NOT MERIT FURTHER REVIEW-- OR IN ITS BRIEF ON THE MERITS-- IN WHICH
IT CONCEDED THAT THE DECISION BELOW CLEARLY VIOLATED SIBRON'S
CONSTITUTIONAL RIGHTS AND URGED THAT IT WAS AN ABERRANT INTERPRETATION
WHICH SHOULD NOT IMPAIR THE CONSTITUTIONALITY OF THE NEW YORK STATUTE. 
FOLLOWING THE SUGGESTION OF MOOTNESS ON ORAL ARGUMENT, MOREOVER, THE
STATE FILED A BRIEF IN WHICH IT AMPLIFIED ITS VIEWS AS TO WHY THE CASE
SHOULD BE HELD MOOT, BUT ADDED THE EXTRAORDINARY SUGGESTION THAT THIS
COURT SHOULD IGNORE THE PROBLEM AND PRONOUNCE UPON THE
CONSTITUTIONALITY OF A STATUTE IN A CASE WHICH HAS BECOME MOOT. 
NORMALLY IN THESE CIRCUMSTANCES WE WOULD CONSIDER OURSELVES FULLY
JUSTIFIED IN FORECLOSING A PARTY UPON AN ISSUE; HOWEVER, SINCE THE
QUESTION GOES TO THE VERY EXISTENCE OF A CONTROVERSY FOR US TO
ADJUDICATE, WE HAVE UNDERTAKEN TO REVIEW IT. 

/9/  CF. FAY V. NOIA, 372 U.S. 391, 424 (1963): 

"(CONVENTIONAL NOTIONS OF FINALITY IN CRIMINAL LITIGATION CANNOT BE
PERMITTED TO DEFEAT THE MANIFEST FEDERAL POLICY THAT FEDERAL
CONSTITUTIONAL RIGHTS OF PERSONAL LIBERTY SHALL NOT BE DENIED WITHOUT
THE FULLEST OPPORTUNITY FOR PLENARY FEDERAL JUDICIAL REVIEW."     /10/
SEE N.Y. CODE CRIM. PROC. SEC. 555 SUBD. 2. 

/11/  SIBRON WAS ARRESTED ON MARCH 9, 1965, AND WAS UNABLE TO MAKE
BAIL BEFORE TRIAL BECAUSE OF HIS INDIGENCY.  HE THUS REMAINED IN JAIL
FROM THAT TIME UNTIL THE EXPIRATION OF HIS SENTENCE (WITH GOOD TIME
CREDIT) ON JULY 10, 1965.  HE WAS CONVICTED ON APRIL 23.  HIS
APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS WAS NOT GRANTED
UNTIL MAY 14, AND HIS ASSIGNED APPELLATE COUNSEL WAS NOT PROVIDED WITH
A TRANSCRIPT UNTIL JUNE 11.  THE APPELLATE TERM OF THE SUPREME COURT
RECESSED ON JUNE 7 UNTIL SEPTEMBER.  THUS SIBRON WAS RELEASED WELL
BEFORE THERE HAD BEEN ANY OPPORTUNITY EVEN TO ARGUE HIS CASE IN THE
INTERMEDIATE STATE APPELLATE COURT.  A DECISION BY THE COURT OF APPEALS
OF NEW YORK WAS NOT HAD UNTIL JULY 10, 1966, THE ANNIVERSARY OF
SIBRON'S RELEASE. 

/12/  CF., E.G., THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199
(1960). 

/13/  IN ST. PIERRE THE COURT NOTED THAT THE PETITIONER COULD HAVE
TAKEN STEPS TO PRESERVE HIS CASE, BUT THAT "HE DID NOT APPLY TO THIS
COURT FOR A STAY OR A SUPERSEDEAS."  319 U.S.,AT 43.  HERE HOWEVER, IT
IS ABUNDANTLY CLEAR THAT THERE IS NO PROCEDURE OF WHICH SIBRON COULD
HAVE AVAILED HIMSELF TO PREVENT THE EXPIRATION OF HIS SENTENCE LONG
BEFORE THIS COURT COULD HEAR HIS CASE.  A SUPERSEDEAS FROM THIS COURT
IS A PURELY ANCILLARY WRIT, AND MAY ISSUE ONLY IN CONNECTION WITH AN
APPEAL ACTUALLY TAKEN.  EX PARTE RALSTON, 119 U.S. 613 (1887); SUP. CT.
RULE 18; SEE R. ROBERTSON & F. KIRLHAM, JURISDICTION OF THE SUPREME
COURT OF THE UNITED STATES SEC. 435, AT 883 (R. WOLFSON & P. KURLAND
ED., 1951).  AT THE TIME SIBRON COMPLETED SERVICE OF HIS SENTENCE, THE
ONLY JUDGMENT OUTSTANDING WAS THE CONVICTION ITSELF, RENDERED BY THE
CRIMINAL COURT OF THE CITY OF NEW YORK, COUNTY OF KINGS.  THIS COURT
HAD NO JURISDICTION TO HEAR AN APPEAL FROM THAT JUDGMENT, SINCE IT WAS
NOT RENDERED BY THE "HIGHEST COURT OF A STATE IN WHICH A DECISION COULD
BE HAD," 28 U.S.C. 1257, AND THERE COULD BE NO WARRANT FOR INTERFERENCE
WITH THE ORDERLY APPELLATE PROCESSES OF THE STATE COURTS.  THUS NO
SUPERSEDEAS COULD HAVE ISSUED.  NOR COULD THIS COURT HAVE ORDERED
SIBRON ADMITTED TO BAIL BEFORE THE EXPIRATION OF HIS SENTENCE, SINCE
THE OFFENSE WAS NOT BAILABLE, 18 U.S.C. 3144; SEE N. 10, SUPRA.  THUS
THIS CASE IS DISTINGUISHABLE FROM ST. PIERRE IN THAT SIBRON "COULD NOT
HAVE BROUGHT HIS CASE TO THIS COURT FOR REVIEW BEFORE THE EXPIRATION OF
HIS SENTENCE."  319 U.S.,AT 43. 

/14/  COMPARE GINSBERG V. NEW YORK, 390 U.S. 629, 633, N. 2 (1968),
WHERE THIS COURT HELD THAT THE MERE POSSIBILITY THAT THE COMMISSIONER
OF BUILDINGS OF THE TOWN OF HEMPSTEAD, NEW YORK, MIGHT "IN HIS
DISCRETION" ATTEMPT IN THE FUTURE TO REVOKE A LICENSE TO RUN A
LUNCHEONETTE BECAUSE OF A SINGLE CONVICTION FOR SELLING RELATIVELY
INOFFENSIVE "GIRLIE" MAGAZINES TO A 16-YEAR0OLD BOY WAS SUFFICIENT TO
PRESERVE A CRIMINAL CASE FROM MOOTNESS. 

/15/  SEE GENERALLY NOTE, 53 VA.L.REV.  403 (1967). 

/16/  WE DO NOT KNOW FROM THE RECORD HOW MANY CONVICTIONS SIBRON
HAD, FOR WHAT CRIMES, OR WHEN THEY WERE RENDERED.  AT THE HEARING HE
ADMITTED TO A 1955 CONVICTION FOR BURGLARY AND A 1957 MISDEMEANOR
CONVICTION FOR POSSESSION OF NARCOTICS.  HE ALSO ADMITTED THAT HE HAD
OTHER CONVICTIONS, BUT NONE WERE SPECIFICALLY ALLUDED TO. 

/17/  WE NOTE THAT THERE IS A CLEAR DISTINCTION BETWEEN A GENERAL
IMPAIRMENT OF CREDIBILITY, TO WHICH THE COURT REFERRED IN ST. PIERRE,
SEE 319 U.S.,AT 43, AND NEW YORK'S SPECIFIC STATUTORY AUTHORIZATION FOR
USE OF THE CONVICTION TO IMPEACH THE "CHARACTER" OF A DEFENDANT IN A
CRIMINAL PROCEEDING.  THE LATTER IS A CLEAR LEGAL DISABILITY
DELIBERATELY AND SPECIFICALLY IMPOSED BY THE LEGISLATURE. 

/18/  THIS FACTOR HAS CLEARLY BEEN CONSIDERED RELEVANT BY THE COURT
IN THE PAST IN DETERMINING THE ISSUE OF MOOTNESS.  SEE FISWICK V.
UNITED STATES, 329 U.S. 211, 221-222 (1946). 

/19/  FRANKFURTER, A NOTE ON ADVISORY OPINIONS, 37 HARV.L.REV. 
1002, 1006 (1924).  SEE ALSO PARKER V. ELLIS, 362 U.S. 574, 592-593
(1960) (DISSENTING OPINION). 

/20/  IT IS NOT APPARENT, FOR EXAMPLE, WHETHER THE POWER TO "STOP"
GRANTED BY THE STATUTE ENTAILS A POWER TO "DETAIN" FOR INVESTIGATION OR
INTERROGATION UPON LESS THAN PROBABLE CAUSE, OR IF SO WHAT SORT OF
DURATIONAL LIMITATIONS UPON SUCH DETENTION ARE CONTEMPLATED.  AND WHILE
THE STATUTE'S APPARENT GRANT OF A POWER OF COMPULSION INDICATES THAT
MANY "STOPS" WILL CONSTITUTE "SEIZURES," IT IS NOT CLEAR THAT ALL
CONDUCT ANALYZED UNDER THE RUBRIC OF THE STATUTE WILL EITHER RISE TO
THE LEVEL OF A "SEIZURE" OR BE BASED UPON LESS THAN PROBABLE CAUSE.  IN
NO. 74, THE PETERS CASE, FOR EXAMPLE, THE NEW YORK COURTS JUSTIFIED THE
SEIZURE OF APPELLANT UNDER SEC. 180-A, BUT WE HAVE CONCLUDED THAT THERE
WAS IN FACT PROBABLE CAUSE FOR AN ARREST WHEN OFFICER LASKY SEIZED
PETERS ON THE STAIRWAY.  SEE INFRA, AT 66.  IN ANY EVENT, A
PRONOUNCEMENT BY THIS COURT UPON THE ABSTRACT VALIDITY OF SEC. 180-A'S
"STOP" CATEGORY WOULD BE MOST INAPPROPRIATE IN THESE CASES, SINCE WE
HAVE CONCLUDED THAT NEITHER OF THEM PRESENTS THE QUESTION OF THE
VALIDITY OF A SEIZURE OF THE PERSON FOR PURPOSES OF INTERROGATION UPON
LESS THAN PROBABLE CAUSE. 

THE STATUTE'S OTHER CATEGORIES ARE EQUALLY ELASTIC, AND IT WAS
PASSED TOO RECENTLY FOR THE STATE'S HIGHEST COURT TO HAVE RULED UPON
MANY OF THE QUESTIONS INVOLVING POTENTIAL INTERSECTIONS WITH FEDERAL
CONSTITUTIONAL GUARANTEES.  WE CANNOT TELL, FOR EXAMPLE, WHETHER THE
OFFICER'S POWER TO "DEMAND" OF A PERSON AN "EXPLANATION OF HIS ACTIONS"
CONTEMPLATES EITHER AN OBLIGATION ON THE PART OF THE CITIZEN TO ANSWER
OR SOME ADDITIONAL POWER ON THE PART OF THE OFFICER IN THE EVENT OF A
REFUSAL TO ANSWER, OR EVEN WHETHER THE INTERROGATION FOLLOWING THE
"STOP" IS "CUSTODIAL."  COMPARE MIRANDA V. ARIZONA, 384 U.S. 436
(1966).  THERE ARE, MOREOVER, SUBSTANTIAL INDICATIONS THAT THE
STATUTORY CATEGORY OF A "SEARCH FOR A DANGEROUS WEAPON" MAY ENCOMPASS
CONDUCT CONSIDERABLY BROADER IN SCOPE THAN THAT WHICH WE APPROVED IN
TERRY V. OHIO, ANTE, P. 1.  SEE INFRA, AT 65-66.  SEE ALSO PEOPLE V.
TAGGART, 20 N.Y.2D 335, 229 N.E.2D 581, 283 N.Y.S.2D 1 (1967).  AT
LEAST SOME OF THE ACTIVITY APPARENTLY PERMITTED UNDER THE RUBRIC OF
SEARCHING FOR DANGEROUS WEAPONS MAY THUS BE PERMISSIBLE UNDER THE
CONSTITUTION ONLY IF THE "REASONABLY SUSPICION" OF CRIMINAL ACTIVITY
RISES TO THE LEVEL OF PROBABLE CAUSE.  FINALLY, IT IS IMPOSSIBLE TO
TELL WHETHER THE STANDARD OF "REASONABLE SUSPICION" CONNOTES THE SAME
SORT OF SPECIFICITY, RELIABILITY, AND OBJECTIVITY WHICH IS THE
TOUCHSTONE OF PERMISSIBLE GOVERNMENTAL ACTION UNDER THE FOURTH
AMENDMENT.  COMPARE TERRY V. OHIO, SUPRA, WITH PEOPLE V. TAGGART,
SUPRA.  IN THIS CONNECTION WE NOTE THAT THE SEARCHES AND SEIZURES IN
BOTH SIBRON AND PETERS WERE UPHELD BY THE COURT OF APPEALS OF NEW YORK
AS PREDICATED UPON "REASONABLE SUSPICION," WHEREAS WE HAVE CONCLUDED
THAT THE OFFICER IN PETERS HAS PROBABLE CAUSE FOR AN ARREST, WHILE THE
POLICEMAN IN SIBRON WAS NOT POSSESSED OF ANY INFORMATION WHICH WOULD
JUSTIFY AN INTRUSION UPON RIGHTS PROTECTED BY THE FOURTH AMENDMENT. 

/21/  IT IS ARGUED IN DISSENT THAT THIS COURT HAS IN EFFECT
OVERTURNED FACTUAL FINDINGS BY THE TWO COURTS BELOW THAT THE SEARCH IN
THIS CASE WAS A SELF-PROTECTIVE MEASURE ON THE PART OF PATROLMAN
MARTIN, WHO THOUGHT THAT SIBRON MIGHT HAVE BEEN REACHING FOR A GUN.  IT
IS TRUE, AS WE HAVE NOTED, THAT THE COURT OF APPEALS OF NEW YORK
APPARENTLY RESTED ITS APPROVAL OF THE SEARCH ON THIS VIEW.  THE TRIAL
COURT, HOWEVER, MADE NO SUCH FINDING OF FACT.  THE TRIAL JUDGE ADOPTED
THE THEORY OF THE PROSECUTION AT THE HEARING ON THE MOTION TO
SUPPRESS.  THIS THEORY WAS THAT THERE WAS PROBABLE CAUSE TO ARREST
SIBRON FOR SOME CRIME HAVING TO DO WITH NARCOTICS.  THE FACT WHICH
TIPPED THE SCALES FOR THE TRIAL COURT HAD NOTHING TO DO WITH DANGER TO
THE POLICEMAN.  THE JUDGE EXPRESSLY CHANGED HIS ORIGINAL VIEW AND HELD
THE HEROIN ADMISSIBLE UPON BEING REMINDED THAT SIBRON HAD ADMITTED ON
THE STAND THAT HE SPOKE TO THE ADDICTS ABOUT NARCOTICS.  THIS ADMISSION
WAS NOT RELEVANT ON THE ISSUE OF PROBABLE CAUSE, AND WE DO NOT
UNDERSTAND THE DISSENT TO TAKE THE POSITION THAT PRIOR TO THE DISCOVERY
OF HEROIN, THERE WAS PROBABLE CAUSE FOR AN ARREST. 

MOREOVER, PATROLMAN MARTIN HIMSELF NEVER AT ANY TIME PUT FORTH THE
NOTION THAT HE ACTED TO PROTECT HIMSELF.  AS WE HAVE NOTED, THIS
SUBJECT NEVER CAME UP, UNTIL ON RE-DIRECT EXAMINATION DEFENSE COUNSEL
RAISED THE QUESTION WHETHER PATROLMAN MARTIN THOUGHT SIBRON WAS GOING
FOR A GUN.  SEE N. 4, SUPRA.  THIS WAS THE ONLY REFERENCE TO WEAPONS AT
ANY POINT IN THE HEARING, AND THE SUBJECT WAS SWIFTLY DROPPED.  IN THE
CIRCUMSTANCES AN UNARTICULATED "FINDING" BY AN APPELLATE COURT WHICH
WROTE NO OPINION, APPARENTLY TO THE EFFECT THAT THE OFFICER'S INVASION
OF SIBRON'S PERSON COMPORTED WITH THE CONSTITUTION BECAUSE OF THE NEED
TO PROTECT HIMSELF, IS NOT DESERVING OF CONTROLLING DEFERENCE. 

/22/  SEE N. 7, SUPRA. 

MR. JUSTICE DOUGLAS, CONCURRING IN NO. 63. 

OFFICER MARTIN TESTIFIED THAT ON THE NIGHT IN QUESTION HE OBSERVED
APPELLANT SIBRON CONTINUALLY FROM 4 P.M. TO 12 MIDNIGHT AND THAT DURING
THAT EIGHT-HOUR PERIOD, SIBRON CONVERSED WITH DIFFERENT PERSONS EACH
PERSONALLY KNOWN TO MARTIN AS NARCOTICS ADDICTS.  WHEN SIBRON ENTERED A
RESTAURANT, MARTIN FOLLOWED HIM INSIDE WHERE HE OBSERVED SIBRON TALKING
TO THREE OTHER PERSONS ALSO PERSONALLY KNOWN TO MARTIN AS NARCOTICS
ADDICTS.  AT THAT POINT HE APPROACHED SIBRON AND ASKED HIM TO COME
OUTSIDE.  WHEN SIBRON STEPPED OUT, MARTIN SAID, "YOU KNOW WHAT I AM
AFTER."  SIBRON THEN REACHED INSIDE HIS POCKET, AND AT THE SAME TIME
MARTIN REACHED INTO THE SAME POCKET AND DISCOVERED SEVERAL GLASSINE
ENVELOPES WHICH WERE FOUND TO CONTAIN HEROIN.  SIBRON WAS SUBSEQUENTLY
CONVICTED OF UNLAWFUL POSSESSION OF HEROIN. 

CONSORTING WITH CRIMINALS MAY IN A PARTICULAR FACTUAL SETTING BE A
BASIS FOR BELIEVING THAT A CRIMINAL PROJECT IS UNDERWAY.  YET TALKING
WITH ADDICTS WITHOUT MORE RISES NO HIGHER THAN SUSPICION.  THAT IS ALL
WE HAVE HERE; AND IF IT IS SUFFICIENT FOR A "SEIZURE" AND A "SEARCH,"
THEN THERE IS NO SUCH THING AS PRIVACY FOR THIS VAST GROUP OF "SICK"
PEOPLE. 

MR. JUSTICE DOUGLAS, CONCURRING IN NO. 74. 

OFFICER LASKY TESTIFIED THAT HE RESIDED IN A MULTIPLE-DWELLING
APARTMENT HOUSE IN MOUNT VERNON, NEW YORK, HIS APARTMENT WAS ON THE
SIXTH FLOOR.  AT ABOUT 1 IN THE AFTERNOON, HE HAD JUST STEPPED OUT OF
THE SHOWER AND WAS DRYING HIMSELF WHEN HE HEARD A NOISE AT HIS DOOR. 
JUST THEN HIS PHONE RANG AND HE ANSWERED THE CALL.  AFTER HANGING UP,
HE LOOKED THROUGH THE PEEPHOLE OF HIS DOOR AND SAW TWO MEN, ONE OF WHOM
WAS APPELLANT, TIPTOEING OUT OF AN ALCOVE TOWARD THE STAIRWAY.  HE
PHONED HIS HEADQUARTERS TO REPORT THIS OCCURRENCE, AND THEN PUT ON SOME
CLOTHES AND PROCEEDED BACK TO THE DOOR.  THIS TIME HE SAW A TALL MAN
TIPTOEING AWAY FROM THE ALCOVE, FOLLOWED BY APPELLANT, TOWARD THE
STAIRWAY.  LASKY CAME OUT OF HIS APARTMENT, SLAMMED THE DOOR BEHIND
HIM, AND THEN GAVE CHASE, GUN IN HAND, AS THE TWO MEN BEGAN TO RUN DOWN
THE STAIRS.  HE APPREHENDED APPELLANT ON THE STAIRWAY BETWEEN THE
FOURTH AND FIFTH FLOORS, AND ASKED WHAT HE WAS DOING IN THE BUILDING. 
APPELLANT REPLIED THAT HE WAS LOOKING FOR A GIRL FRIEND, BUT REFUSED TO
GIVE HER NAME, SAYING THAT SHE WAS A MARRIED WOMAN.  LASKY THEN
"FRISKED" APPELLATN FOR A WEAPON, AND DISCOVERED IN HIS RIGHT PANTS
POCKET A PLASTIC ENVELOPE.  THE ENVELOPE CONTAINED A TENSION BAR, 6
PICKS AND 2 ALLEN WRENCHES WITH THE SHORT LEG FILED DOWN TO A
SCREWDRIVER EDGE.  APPELLANT WAS SUBSEQUENTLY CONVICTED FOR POSSESSION
OF BURGLARY TOOLS. 

I WOULD HOLD THAT AT THE TIME LASKY SEIZED APPELLANT, HE HAD
PROBABLE CAUSE TO BELIEVE THAT APPELLANT WAS ON SOME KIND OF BURGLARY
OR HOUSEBREAKING MISSION.  /1/  IN MY VIEW HE HAD PROBABLE CAUSE TO
SEIZE APPELLANT AND ACCORDINGLY TO CONDUCT A LIMITED SEARCH OF HIS
PERSON FOR WEAPONS. 

/1/  SEE N.Y. PEN.  CODE SECS. 140.20, 140.25 (1967). 

MR. JUSTICE WHITE, CONCURRING. 

I JOIN PARTS I-IV OF THE COURT'S OPINION.  WITH RESPECT TO APPELLANT
PETERS, I JOIN THE AFFIRMANCE OF HIS CONVICTION, NOT BECAUSE THERE WAS
PROBABLE CAUSE TO ARREST, A QUESTION I DO NOT REACH, BUT BECAUSE THERE
WAS PROBABLE CAUSE TO STOP PETERS FOR QUESTIONING AND THUS TO FRISK HIM
FOR DANGEROUS WEAPONS.  SEE MY CONCURRING OPINION IN TERRY V. OHIO,
ANTE, P. 34.  WHILE PATTING DOWN PETERS' CLOTHING THE OFFICER
"DISCOVERED AN OBJECT IN HIS POCKET WHICH MIGHT HAVE BEEN USED AS A
WEAPON."  ANTE, AT 67.  THAT OBJECT TURNED OUT TO BE A PACKAGE OF
BURGLAR'S TOOLS.  IN MY VIEW THOSE TOOLS WERE PROPERLY ADMITTED INTO
EVIDENCE. 

MR. JUSTICE FORTAS, CONCURRING. 

1.  I WOULD CONSTRUE ST. PIERRE V. UNITED STATES, 319 U.S. 41
(1943), IN LIGHT OF LATER CASES, TO MEAN THAT A CRIMINAL CASE IS MOOT
IF IT APPEARS THAT NO COLLATERAL LEGAL CONSEQUENCES WILL BE IMPOSED ON
THE BASIS OF THE CHALLENGED CONVICTION.  (CF. MAJORITY OPINION, ANTE,
AT 57-58. 

2.  I JOIN WITHOUT QUALIFICATION IN THE COURT'S JUDGMENT AND OPINION
CONCERNING THE STANDARDS TO BE USED IN DETERMINING WHETHER PSEC.  180-A
AS APPLIED TO PARTICULAR SITUATIONS IS CONSTITUTIONAL.  BUT I WOULD
EXPLICITLY RESERVE THE POSSIBILITY THAT A STATUTE PURPORTING TO
AUTHORIZE A WARRANTLESS SEARCH MIGHT BE SO EXTREME AS TO JUSTIFY OUR
CONCLUDING THAT IT IS UNCONSTITUTIONAL "ON ITS FACE," REGARDLESS OF THE
FACTS OF THE PARTICULAR CASE.  TO THE EXTENT THAT THE COURT'S OPINION
MAY INDICATE THE CONTRARY, I DISAGREE.  (CF. MAJORITY OPINION, ANTE, AT
59-62.) 

3.  IN SIBRON'S CASE (NO. 63), I WOULD CONCLUDE THAT WE FIND NOTHING
IN THE RECORD OF THIS CASE OR PERTINENT PRINCIPLES OF LAW TO CAUSE US
TO DISREGARD THE RECORD OF THIS CASE OR PERTINENT PRINCIPLES OF LAW TO
CAUSE US TO DISREGARD THE CONFESSION OF ERROR BY COUNSEL FOR KINGS
COUNTY.  I WOULD NOT DISCOURAGE CONFESSIONS OF ERROR NOR WOULD I
DISREGARD THEM.  (CF. MAJORITY OPINION, PT. II, ANTE, AT 58-59). 
MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I FULLY AGREE WITH THE RESULTS THE COURT HAS REACHED IN THESE
CASES.  THEY ARE, I THINK, CONSONANT WITH AND DICTATED BY THE DECISION
IN TERRY V. OHIO, ANTE, P. 1.  FOR REASONS I DO NOT UNDERSTAND,
HOWEVER, THE COURT HAS DECLINED TO REST THE JUDGMENTS HERE UPON THE
PRINCIPLES OF TERRY.  IN DOING SO IT HAS, IN AT LEAST ONE PARTICULAR,
MADE SERIOUS INROADS UPON THE PROTECTION AFFORDED BY THE FOURTH AND
FOURTEENTH AMENDMENTS.     THE COURT IS OF COURSE ENTIRELY CORRECT IN
CONCLUDING THAT WE SHOULD NOT PASS UPON THE CONSTITUTIONALITY OF THE
NEW YORK STOP-AND-FRISK LAW "ON ITS FACE."  THE STATUTE IS CERTAINLY
NOT UNCONSTITUTIONAL ON ITS FACE:  THAT IS, IT DOES NOT PLAINLY PURPORT
TO AUTHORIZE UNCONSTITUTIONAL ACTIVITIES BY POLICEMEN.  NOR IS IT
"CONSTITUTIONAL ON ITS FACE" IF THAT ESPRESSION MEANS THAT ANY ACTION
NOW OR LATER THOUGHT TO FALL WITHIN THE TERMS OF THE STATUTE IS, IPSO
FACTO, WITHIN CONSTITUTIONAL LIMITS AS WELL.  NO STATUTE, STATE OR
FEDERAL, RECEIVES ANY SUCH IMPRIMATUR FROM THIS COURT. 

THIS DOES NOT MEAN, HOWEVER, THAT THE STATUTE SHOULD BE IGNORED
HERE.  THE STATE OF NEW YORK HAS MADE A DELIBERATE EFFORT TO DEAL WITH
THE COMPLEX PROBLEM OF ON-THE-STREET POLICEWORK.  WITHOUT GIVING CARTE
BLANCHE TO ANY PARTICULAR VERBAL FORMULATION, WE SHOULD, I THINK, WHERE
RELEVANT, INDICATE THE EXTENT TO WHICH THAT EFFORT HAS BEEN
CONSTITUTIONALLY SUCCESSFUL.  THE CORE OF THE NEW YORK STATUTE IS THE
PERMISSION TO STOP ANY PERSON REASONABLY SUSPECTED OF CRIME.  UNDER THE
DECISION IN TERRY A RIGHT TO STOP MAY INDEED BE PREMISED ON REASONABLE
SUSPICION AND DOES NOT REQUIRE PROBABLE CAUSE, AND HENCE THE NEW YORK
FORMULATION IS TO THAT EXTENT CONSTITUTIONAL.  THIS DOES NOT MEAN THAT
SUSPICION NEED NOT BE "REASONABLE" IN THE CONSTITUTIONAL AS WELL AS THE
STATUTORY SENSE.  NOR DOES IT MEAN THAT THIS COURT HAS APPROVED MORE
THAN A MOMENTARY STOP OR HAS INDICATED WHAT QUESTIONING MAY
CONSTITUTIONALLY OCCUR DURING A STOP, FOR THE CASES BEFORE US DO NOT
RAISE THESE QUESTIONS.  /1/ 

TURNING TO THE INDIVIDUAL CASES, I AGREE THAT THE CONVICTION IN NO.
63, SIBRON, SHOULD BE REVERSED, AND WOULD DO SO UPON THE PREMISES OF
TERRY.  AT THE OUTSET, I AGREE THAT SUFFICIENT COLLATERAL LEGAL
CONSEQUENCES OF SIBRON'S CONVICTION HAVE BEEN SHOWN TO PREVENT THIS
CASE FROM BEING MOOT, AND I AGREE THAT THE CASE SHOULD NOT BE REVERSED
SIMPLY ON THE STATE'S CONFESSION OF ERROR. 

THE CONSIDERABLE CONFUSION THAT HAS SURROUNDED THE "SEARCH" OR
"FRISK" OF SIBRON THAT LED TO THE ACTUAL RECOVERY OF THE HEROIN SEEMS
TO ME IRRELEVANT FOR OUR PURPOSES.  OFFICER MARTIN REPUDIATED HIS FIRST
STATEMENT, WHICH MIGHT CONCEIVABLY HAVE INDICATED A THEORY OF
"ABANDONMENT," SEE ANTE, AT 45-46.  NO MATTER WHICH OF THE OTHER
THEORIES IS ADOPTED, IT IS CLEAR THAT THERE WAS AT LEAST A FORCIBLE
FRISK, COMPARABLE TO THAT WHICH OCCURRED IN TERRY, WHICH REQUIRES
CONSTITUTIONAL JUSTIFICATION. 

SINCE CARRYING HEROIN IS A CRIME IN NEW YORK, PROBABLE CAUSE TO
BELIEVE SIBRON WAS CARRYING HEROIN WOULD ALSO HAVE BEEN PROBABLE CAUSE
TO ARREST HIM.  AS THE COURT SAYS, OFFICER MARTIN CLEARLY HAD NEITHER. 
ALTHOUGH SIBRON HAD HAD CONVERSATIONS WITH SEVERAL KNOWN ADDICTS, HE
HAD DONE NOTHING DURING THE SEVERAL HOURS HE WAS UNDER SURVEILLANCE,
THAT MADE IT "PROBABLE" THAT HE WAS EITHER CARRYING HEROIN HIMSELF OR
ENGAGING IN TRANSACTIONS WITH THESE ACQUAINTANCES. 

NOR WERE THERE HERE REASONABLE GROUNDS FOR A TERRY-TYPE "STOP" SHORT
OF AN ARREST.  I WOULD ACCEPT, AS AN ADEQUATE GENERAL FORMULA, THE NEW
YORK REQUIREMENT THAT THE OFFICER MUST "REASONABLY SUSPECT" THAT THE
PERSON HE STOPS "IS COMMITTING, HAS COMMITTED OR IS ABOUT TO COMMIT A
FELONY."  N.Y. CODE CRIM. PROC. SEC. 180-A.  "ON ITS FACE," THIS
REQUIREMENT IS, IF ANYTHING, MORE STRINGENT THAT THE REQUIREMENT STATED
BY THE COURT IN TERRY:  "WHERE A POLICE OFFICER OBSERVES UNUSUAL
CONDUCT WHICH LEADS HIM REASONABLY TO CONCLUDE IN LIGHT OF HIS
EXPERIENCE THAT CRIMINAL ACTIVITY MAY BE AFOOT.  . . . "  ANTE, AT 30. 
THE INTERPRETATION OF THE NEW YORK STATUTE IS OF COURSE A MATTER FOR
THE NEW YORK COURTS, BUT ANY PARTICULAR STOP MUST MEET THE TERRY
STANDARD AS WELL. 

THE FORCIBLE ENCOUNTER BETWEEN OFFICER MARTIN AND SIBRON DID NOT
MEET THE TERRY REASONABLENESS STANDARD.  IN THE FIRST PLACE, ALTHOUGH
ASSOCIATION WITH KNOWN CRIMINALS MAY, I THINK, PROPERLY BE A FACTOR
CONTRIBUTING TO THE SUSPICIOUSNESS OF CIRCUMSTANCES, IT DOES NOT,
ENTIRELY BY ITSELF, CREATE SUSPICION ADEQUATE TO SUPPORT A STOP.  THERE
MUST BE SOMETHING AT LEAST IN THE ACTIVITIES OF THE PERSON BEING
OBSERVED OR IN HIS SURROUNDINGS THAT AFFIRMATIVELY SUGGESTS PARTICULAR
CRIMINAL ACTIVITY, COMPLETED, CURRENT, OR INTENDED.  THAT WAS THE CASE
IN TERRY, BUT IT PALPABLY WAS NOT THE CASE HERE.  FOR EIGHT CONTINUOUS
HOURS, UP TO THE POINT WHEN HE INTERRUPTED SIBRON EATING A PIECE OF
PIE, OFFICER MARTIN APPARENTLY OBSERVED NOT A SINGLE SUSPICIOUS ACTION
AND HEARD NOT A SINGLE SUSPICIOUS WORD ON THE PART OF SIBRON HIMSELF OR
ANY PERSON WITH WHOM HE ASSOCIATED.  IF ANYTHING, THAT PERIOD OF
SURVEILLANCE POINTED AWAY FROM SUSPICION. 

FURTHERMORE, IN TERRY, THE POLICE OFFICER JUDGED THAT HIS SUSPECT
WAS ABOUT TO COMMIT A VIOLENT CRIME AND THAT HE HAD TO ASSERT HIMSELF
IN ORDER TO PREVENT IT.  HERE THERE WAS NO REASON FOR OFFICER MARTIN TO
THINK THAT AN INCIPIENT CRIME, OR FLIGHT, OR THE DESTRUCTION OF
EVIDENCE WOULD OCCUR IF HE STAYED HIS HAND; INDEED, THERE WAS NO MORE
REASON FOR HIM TO INTRUDE UPON SIBRON AT THE MOMENT WHEN HE DID THAN
THERE HAD BEEN FOUR HOURS EARLIER, AND NO REASON TO THINK THE SITUATION
WOULD HAVE CHANGED FOUR HOURS LATER.  WHILE NO HARD-AND-FAST RULE CAN
BE DRAWN, I WOULD SUGGEST THAT ONE IMPORTANT FACTOR, MISSING HERE, THAT
SHOULD BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER THERE ARE
REASONABLE GOUNDS FOR A FORCIBLE INTRUSION IS WHETHER THERE IS ANY NEED
FOR IMMEDIATE ACTION. 

FOR THESE REASONS I WOULD HOLD THAT OFFICER MARTIN LACKED REASONABLE
GROUNDS TO INTRUDE FORCIBLY UPON SIBRON.  IN CONSEQUENCE, THE ESSENTIAL
PREMISE FOR THE RIGHT TO CONDUCT A SELF-PROTECTIVE FRISK WAS LACKING. 
SEE MY CONCURRING OPINION IN TERRY, ANTE, P. 31.  I THEREFORE FIND IT
UNNECESSARY TO REACH TWO FURTHER TROUBLESOME QUESTIONS.  FIRST,
ALTHOUGH I THINK THAT, AS IN TERRY, THE RIGHT TO FRISK IS AUTOMATIC
WHEN AN OFFICER LAWFULLY STOPS A PERSON SUSPECTED OF A CRIME WHOSE
NATURE CREATES A SUBSTANTIAL LIKELIHOOD THAT HE IS ARMED, IT IS NOT
CLEAR THAT SUSPECTED POSSESSION OF NARCOTICS FALLS INTO THIS CATEGORY. 
IF THE NATURE OF THE SUSPECTED OFFENSE CREATES NO REASONABLE
APPREHENSION FOR THE OFFICER'S SAFETY, I WOULD NOT PERMIT HIM TO FRISK
UNLESS OTHER CIRCUMSTANCES DID SO.  SECOND, I AGREE WITH THE COURT THAT
EVEN WHERE A SELF-PROTECTIVE FRISK IS PROPER, ITS SCOPE SHOULD BE
LIMITED TO WHAT IS ADEQUATE FOR ITS PURPOSES.  I SEE NO NEED HERE TO
RESOLVE THE QUESTION WHETHER THIS FRISK EXCEEDED THOSE BOUNDS. 

TURNING NOW TO NO. 74, PETERS, I AGREE THAT THE CONVICTION SHOULD BE
UPHELD, BUT HERE I WOULD DIFFER STRONGLY AND FUNDAMENTALLY WITH THE
COURT'S APPROACH.  THE COURT HOLDS THAT THE BURGLAR'S TOOLS WERE
RECOVERED FROM PETERS IN A SEARCH INCIDENT TO A LAWFUL ARREST.  I DO
NOT THINK THAT OFFICER LASKY HAD ANYTHING CLOSE TO PROBABLE CAUSE TO
ARREST PETERS BEFORE HE RECOVERED THE BURGLAR'S TOOLS.  INDEED, IF
PROBABLE CAUSE EXISTED HERE, I FIND IT DIFFICULT TO SEE WHY A DIFFERENT
RATIONALE WAS NECESSARY TO SUPPORT THE STOP AND FRISK IN TERRY AND WHY
STATES SUCH AS NEW YORK HAVE HAD TO DEVOTE SO MUCH THOUGHT TO THE
CONSTITUTIONAL PROBLEMS OF FIELD INTERROGATION.  THIS CASE WILL BE THE
LATEST IN AN EXCEEDINGLY SMALL NUMBER OF CASES IN THIS COURT INDICATING
WHAT SUFFICES FOR PROBABLE CAUSE.  WHILE, AS THE COURT NOTED IN TERRY,
THE INFLUENCE OF THIS COURT ON POLICE TACTICS "IN THE FIELD" IS
NECESSARILY LIMITED, THE INFLUENCE OF A DECISION HERE ON HUNDREDS OF
COURTS AND MAGISTRATES WHO HAVE TO DECIDE WHETHER THERE IS PROBABLE
CAUSE FOR A REAL ARREST OR A FULL SEARCH WILL BE LARGE. 

OFFICER LASKY TESTIFIED THAT AT 1 O'CLOCK IN THE AFTERNOON HE HEARD
A NOISE AT THE DOOR TO HIS APARTMENT.  HE DID NOT TESTIFY, NOR DID ANY
STATE COURT CONCLUDE, THAT THIS "LED HIM TO BELIEVE THAT SOMEONE SOUGHT
TO FORCE ENTRY."  ANTE, AT 66.  HE LOOKED OUT INTO THE PUBLIC HALLWAY
AND SAW TWO MEN WHOM HE DID NOT RECOGNIZE, SURELY NOT A STRANGE
OCCURRENCE IN A LARGE APARTMENT BUILDING.  ONE OF THEM APPEARED TO BE
TIP-TOEING.  LASKY DID NOT TESTIFY THAT THE OTHER MAN WAS TIP-TOEING OR
THAT EITHER OF THEM WAS BEHAVING FURTIVELY."  IBID.  LASKY LEFT HIS
APARTMENT AND RAN TO THEM, GUN IN HAND.  HE DID NOT TESTIFY THAT THERE
WAS ANY "FLIGHT," ANTE, AT 66, /2/  THOUGH FLIGHT AT THE APPROACH OF A
GUN-CARRYING STRANGER (LASKY WAS APPARENTLY NOT IN UNIFORM) IS HARDLY
INDICATIVE OF MENS REA. 

PROBABLE CAUSE TO ARREST MEANS EVIDENCE THAT WOULD WARRANT A PRUDENT
AND REASONABLE MAN (SUCH AS A MAGISTRATE, ACTUAL OR HYPOTHETICAL) IN
BELIEVING THAT A PARTICULAR PERSON HAS COMMITTED OR IS COMMITTING A
CRIME.  /3/  OFFICER LASKY HAD NO EXTRINSIC REASON TO THINK THAT A
CRIME HAD BEEN OR WAS BEING COMMITTED, SO WHETHER IT WOULD HAVE BEEN
PROPER TO ISSUE A WARRANT DEPENDS ENTIRELY ON HIS STATEMENTS OF HIS
OBSERVATIONS OF THE MEN.  APART FROM HIS CONCLUSORY STATEMENT THAT HE
THOUGHT THE MEN WERE BURGLARS, HE OFFERED VERY LITTLE SPECIFIC
EVIDENCE.  I FIND IT HARD TO BELIEVE THAT IF PETERS HAD MADE GOOD HIS
ESCAPE AND THERE WERE NO REPORT OF A BURGLARY IN THE NEIGHBORHOOD, THIS
COURT WOULD HOLD IT PROPER FOR A PRUDENT NEUTRAL MAGISTRATE TO ISSUE A
WARRANT FOR HIS ARREST.  /4/ 

IN THE COURSE OF UPHOLDING PETERS' CONVICTION, THE COURT MAKES TWO
OTHER POINTS THAT MAY LEAD TO FUTURE CONFUSION.  THE FIRST CONCERNS THE
"MOMENT OF ARREST."  IF THERE IS AN ESCALATING ENCOUNTER BETWEEN A
POLICEMAN AND A CITIZEN, BEGINNING PERHAPS WITH A FRIENDLY CONVERSATION
BUT ENDING IN IMPRISONMENT, AND IF EVIDENCE IS DEVELOPING DURING THAT
ENCOUNTER, IT MAY BE IMPORTANT TO IDENTIFY THE MOMENT OF ARREST, I.E.,
THE MOMENT WHEN THE POLICEMAN WAS NOT PERMITTED TO PROCEED FURTHER
UNELSS HE BY THEN HAD PROBABLE CAUSE.  THIS MOMENT-OF-ARREST PROBLEM IS
NOT, ON THE COURT'S PREMISES, IN ANY WAY INVOLVED IN THIS CASE:  THE
COURT HOLDS THAT OFFICER LASKY HAD PROBABLE CAUSE TO ARREST AT THE
MOMENT HE CAUGHT PETERS, AND HENCE PROBABLE CAUSE CLEARLY PRECEDED
ANYTHING THAT MIGHT BE THOUGHT AN ARREST.  THE COURT IMPLIES, HOWEVER,
THAT ALTHOUGH THERE IS NO PROBLEM ABOUT WHETHER THE ARREST OF PETERS
OCCURRED LATE ENOUGH, I.E., AFTER PROBABLE CAUSE DEVELOPED, THERE MIGHT
BE A PROBLEM ABOUT WHETHER IT OCCURRED EARLY ENOUGH, I.E., BEFORE
PETERS WAS SEARCHED.  THIS SEEMS TO ME A FALSE PROBLEM.  OF COURSE, THE
FRUITS OF A SEARCH MAY NOT BE USED TO JUSTIFY AN ARREST TO WHICH IT IS
INCIDENT, BUT THIS MEANS ONLY THAT PROBABLE CAUSE TO ARREST MUST
PRECEDE THE SEARCH.  IF THE PROSECUTION SHOWS PROBABLE CAUSE TO ARREST
PRIOR TO A SEARCH OF A MAN'S PERSON, IT HAS MET ITS TOTAL BURDEN. 
THERE IS NO CASE IN WHICH A DEFENDANT MAY VALIDLY SAY, "ALTHOUGH THE
OFFICER HAD A RIGHT TO ARREST ME AT THE MOMENT WHEN HE SEIZED ME AND
SEARCHED MY PERSON, THE SEARCH IS INVALID BECAUSE HE DID NOT IN FACT
ARREST ME UNTIL AFTERWARDS." 

THIS FACT IS IMPORTANT BECAUSE, AS DEMONSTRATED BY TERRY, NOT EVERY
CURTAILMENT OF FREEDOM OF MOVEMENT IS AN "ARREST" REQUIRING ANTECEDENT
PROBABLE CAUSE.  AT THE SAME TIME, AN OFFICER WHO DOES HAVE PROBABLE
CAUSE MAY OF COURSE SEIZE AND SEARCH IMMEDIATELY.  HENCE WHILE CERTAIN
POLICE ACTIONS WILL UNDOUBTEDLY TURN AN ENCOUNTER INTO AN ARREST
REQUIRING ANTECEDENT PROBABLE CAUSE, THE PROSECUTION MUST BE ABLE TO
DATE THE ARREST AS EARLY AS IT CHOOSES FOLLOWING THE DEVELOPMENT OF
PROBABLE CAUSE. 

THE SECOND POSSIBLE SOURCE OF CONFUSION IS THE COURT'S STATEMENT
THAT "OFFICER LASKY DID NOT ENGAGE IN AN UNRESTRAINED AND THOROUGH
GOING EXAMINATION OF PETERS AND HIS PERSONAL EFFECTS."  ANTE, AT 67. 
SINCE THE COURT FOUND PROBABLE CAUSE TO ARREST PETERS, AND SINCE AN
OFFICER ARRESTING ON PROBABLE CAUSE IS ENTITLED TO MAKE A VERY FULL
INCIDENT SEARCH, /5/  I ASSUME THAT THIS IS MERELY A FACTUAL
OBSERVATION.  AS A FACUTAL MATTER, I AGREE WITH IT. 

ALTHOUGH THE ARTICULABLE CIRCUMSTANCES ARE SOMEWHAT LESS SUSPICIOUS
HERE THAN THEY WERE IN TERRY, I WOULD AFFIRM ON THE TERRY GROUND THAT
OFFICER LASKY HAD REASONABLE CAUSE TO MAKE A FORCED STOP.  UNLIKE
PROBABLE CAUSE TO ARREST, REASONABLE GROUNDS TO STOP DO NOT DEPEND ON
ANY DEGREE OF LIKELIHOOD THAT A CRIME HAS BEEN COMMITTED.  AN OFFICER
MAY FORCIBLY INTRUDE UPON AN INCIPIENT CRIME EVEN WHERE HE COULD NOT
MAKE AN ARREST FOR THE SIMPLE REASON THAT THERE IS NOTHING TO ARREST
ANYONE FOR.  HENCE ALTHOUGH OFFICER LASKY HAD SMALL REASON TO BELIEVE
THAT A CRIME HAD BEEN COMMITTED, HIS RIGHT TO STOP PETERS CAN BE
JUSTIFIED IF HE HAD A REASONABLE SUSPICION THAT PETERS WAS ABOUT TO
ATTEMPT BURGLARY. 

IT WAS CLEAR THAT THE OFFICER HAD TO ACT QUICKLY IF HE WAS GOING TO
ACT AT ALL, AND, AS STATED ABOVE, IT SEEMS TO ME THAT WHERE IMMEDIATE
ACTION IS OBVIOUSLY REQUIRED, A POLICE OFFICER IS JUSTIFIED IN ACTING
ON RATHER LESS OBJECTIVELY ARTICULABLE EVIDENCE THAN WHEN THERE IS MORE
TIME FOR CONSIDERATION OF ALTERNATIVE COURSES OF ACTION.  PERHAPS MORE
IMPORTANT, THE COURT'S OPINION IN TERRY EMPHASIZED THE SPECIAL
QUALIFICATIONS OF AN EXPERIENCED POLICE OFFICER.  WHILE "PROBABLE
CUASE" TO ARREST OR SEARCH HAS ALWAYS DEPENDED ON THE EXISTANCE OF HARD
EVIDENCE THAT WOULD PERSUADE A "REASONABLE MAN," IN JUDGING ON-THE
STREET ENCOUNTERS IT SEEMS TO ME PROPER TO TAKE INTO ACCOUNT A POLICE
OFFICER'S TRAINED INSTINCTIVE JUDGMENT OPERATING ON A MULTITUDE OF
SMALL GESTURES AND ACTIONS IMPOSSIBLE TO RECONSTRUCT. THUS THE
STATEMENT BY AN OFFICER THAT "HE LOOKED LIKE A BURGLAR TO ME" ADDS
LITTLE TO AN AFFIDAVIT FILED WITH A MAGISTRATE IN AN EFFORT TO OBTAIN A
WARRANT.  WHEN THE QUESTION IS WHETHER IT WAS REASONABLE TO TAKE
LIMITED BUT FORCIBLE STEPS IN A SITUATION REQUIRING IMMEDIATE ACTION,
HOWEVER, SUCH A STATEMENT LOOMS LARGER.  A COURT IS OF COURSE ENTITLED
TO DISBELIEVE THE OFFICER (WHO IS SUBJECT TO CROSS-EXAMINATION), BUT
WHEN IT BELIEVES HIM AND WHEN THERE ARE SOME ARTICULABLE SUPPORTING
FACTS, IT IS ENTITLED TO FIND ACTION TAKEN UNDER FIRE TO BE
REASONABLE.  GIVEN OFFICER LASKY'S STATEMENT OF THE CIRCUMSTANCES, AND
CREDITING HIS EXPERIENCED JUDGMENT AS HE WATCHED THE TWO MEN, THE STATE
COURTS WERE ENTITLED TO CONCLUDE, AS THEY DID, THAT LASKY FORCIBLY
STOPPED PETERS ON "REASONABLE SUSPICION."  THE FRISK MADE INCIDENT TO
THAT STOP WAS A LIMITED ONE, WHICH TURNED UP BURGLAR'S TOOLS.  ALTHOUGH
THE FRISK IS CONSTITUTIONALLY PERMITTED ONLY IN ORDER TO PROTECT THE
OFFICER, IF IT IS LAWFUL THE STATE IS OF COURSE ENTITLED TO THE USE OF
ANY OTHER CONTRABAND THAT APPEARS. 

FOR THE FOREGOING REASONS I CONCUR IN THE RESULT IN THESE CASES. 

/1/  FOR A THOUGHTFUL STUDY OF MANY OF THESE POINTS, SEE ALI MODEL
CODE OF PRE-ARRAIGNMENT PROCEDURE, TENTATIVE DRAFT NO. 1, SECS. 2.01,
2.01, AND THE COMMENTARY ON THESE SECTION APPEARING AT 87-105. 

/2/  IT IS TRUE, AS THE COURT STATES, THAT THE NEW YORK COURTS
ATTRIBUTED SUCH A STATEMENT TO HIM.  THE ATTRIBUTION SEEMS TO ME
UNWARRANTED BY THE RECORD. 

/3/  E.G., BECK V. OHIO, 379 U.S. 89; RIOS V. UNITED STATES, 364
U.S. 253; HENRY V. UNITED STATES, 361 U.S. 98.  IN HENRY, SUPRA, AT
100, THE COURT SAID THAT 18 U.S.C. 3052 "STATES THE CONSTITUTIONAL
STANDARD: FOR FELONG ARRESTS BY FBI AGENTS WITHOUT WARRANT.  THAT
OFFENSE AGAINST THE UNITED STATES COMMITTED IN THEIR PRESENCE, OR FOR
ANY FELONY COGNIZABLE UNDER THE LAWS OF THE UNITED STATES IF THEY HAVE
REASONABLE GROUNDS TO BELIEVE THAT THE PERSON TO BE ARRESTED HAS
COMMITTED OR IS COMMITTING SUCH FELONY."  UNDER KER V. CALIFORNIA, 374
U.S. 23, A PARALLEL STANDARD IS APPLICABLE TO WARRANTLESS ARRESTS BY
STATE AND LOCAL POLICE. 

/4/  COMPARE HENRY V. UNITED STATES, 361 U.S. 98, IN WHICH THE COURT
SAID THERE WAS "FAR FROM ENOUGH EVIDENCE . . . TO JUSTIFY A MAGISTRATE
IN ISSUING A WARRANT."  ID., AT 103.  AGENTS KNEW THAT A FEDERAL CRIME,
THEFT OF WHISKY FROM AN INTERSTATE SHIPMENT, HAD BEEN COMMITTED "IN THE
NEIGHBORHOOD."  PETITIONER WAS OBSERVED DRIVING INTO AN ALLEY, PICKING
UP PACKAGES, AND DRIVING AWAY.  I AGREE THAT THESE FACTS DID NOT
CONSTITUTE PROBABLE CAUSE, BUT FIND IT HARD TO SEE THAT THE EVIDENCE
HERE WAS MORE IMPRESSIVE. 

/5/  THE LEADING CASE IS UNITED STATES V. RABINOWITZ, 339 U.S. 56. 

MR. JUSTICE BLACK, CONCURRING IN NO. 74 AND DISSENTING IN NO. 63. 

I CONCUR IN THE AFFIRMANCE OF THE JUDGMENT AGAINST PETERS BUT
DISSENT FROM THE REVERSAL OF NO. 63, SIBRON V. NEW YORK, AND WOULD
AFFIRM THAT CONVICTION.  SIBRON WAS CONVICTED OF VIOLATING NEW YORK'S
ANTI-NARCOTICS LAW ON THE BASIS OF EVIDENCE SEIZED FROM HIM BY THE
POLICE.  THE COURT REVERSES ON THE GROUND THAT THE NARCOTICS WERE
SEIZED AS THE RESULT OF AN UNREASONABLE SEARCH IN VIOLATION OF THE
FOURTH AMENDMENT.  THE COURT HAS DECIDED TODAY IN TERRY V. OHIO AND IN
NO. 74, PETERS V. NEW YORK, THAT A POLICEMAN DOES NOT VIOLATE THE
FOURTH AMENDMENT WHEN HE MAKES A LIMITED SEARCH FOR WEAPONS ON THE
PERSON OF A MAN WHO THE POLICEMAN HAS PROBABLE CAUSE TO BELIEVE HAS A
DANGEROUS WEAPON ON HIM WITH WHICH HE MIGHT INJURE THE POLICEMAN OR
OTHERS OR BOTH, UNLESS HE IS SEARCHED AND THE WEAPON IS TAKEN AWAY FROM
HIM.  AND, OF COURSE, UNDER ESTABLISHED PRINCIPLES IT IS NOT A
VIOLATION OF THE FOURTH AMENDMENT FOR A POLICEMAN TO SEARCH A PERSON
WHO HE HAS PROBABLE CAUSE TO BELIEVE IS COMMITTING A FELONY AT THE
TIME.  FOR BOTH THESE REASONS I THINK THE SEIZURE OF THE NARCOTICS FROM
SIBRON WAS NOT UNREASONABLE UNDER THE FOURTH AMENDMENT.  BECAUSE OF A
DIFFERENT EMPHASIS ON THE FACTS, I FIND IT NECESSARY TO RESTATE THEM. 

ABOUT 4 P.M. PATROLMAN MARTIN SAW APPELLANT SIBRON IN THE VICINITY
OF 742 BROADWAY.  FROM THEN UNTIL 12 OCLOCK MIDNIGHT SIBRON REMAINED
THERE.  DURING THAT TIME THE POLICEMAN SAW SIBRON TALKING WITH SIX OR
EIGHT PERSONS WHOM THE POLICEMAN KNEW FROM PAST EXPERIENCE TO BE
NARCOTICS ADDICTS.  LATER, AT ABOUT 12 O'CLOCK, SIBRON WENT INTO A
RESTAURANT AND THERE THE PATROLMAN SAW SIBRON SPEAK WITH THREE MORE
KNOWN ADDICTS.  WHILE SIBRON WAS EATING IN THE RESTAURANT THE POLICEMAN
WENT TO HIM AND ASKED HIM TO COME OUT.  SIBRON CAME OUT.  THERE THE
OFFICER SAID TO SIBRON, "YOU KNOW WHAT I AM AFTER."  SIBRON MUMBLED
SOMETHING AND REACHED INTO HIS LEFT COAT POCKET.  THE OFFICER ALSO
MOVED HIS HAND TO THE POCKET AND SEIZED WHAT WAS IN IT, WHICH TURNED
OUT TO BE HEROIN.  THE PATROLMAN TESTIFIED AT THE HEARING TO SUPPRESS
USE OF THE HEROIN AS EVIDENCE THAT HE "THOUGHT HE (SIBRON) MIGHT HAVE
BEEN" REACHING FOR A GUN. 

COUNSEL FOR NEW YORK FOR SOME REASON THAT I HAVE NOT BEEN ABLE TO
UNDERSTAND, HAS ATTEMPTED TO CONFESS ERROR-- THAT IS, THAT FOR SOME
REASON THE SEARCH OR SEIZURE HERE VIOLATED THE FOURTH AMENDMENT.  I
AGREE WITH THE COURT THAT WE NEED NOT AND SHOULD NOT ACCEPT THIS
CONFESSION OF ERROR.  BUT, UNLIKE THE COURT, I THINK, FOR TWO REASONS,
THAT THE SEIZURE DID NOT VIOLATE THE FOURTH AMENDMENT AND THAT THE
HEROIN WAS PROPERLY ADMITTED IN EVIDENCE. 

FIRST.  I THINK THERE WAS PROBABLE CAUSE FOR THE POLICEMAN TO
BELIEVE THAT WHEN SIBRON REACHED HIS HAND TO HIS COAT POCKET, SIBRON
HAD A DANGEROUS WEAPON WHICH HE MIGHT USE IF IT WERE NOT TAKEN AWAY
FROM HIM.  THIS, ACCORDING TO THE COURT'S OWN OPINION, SEEMS TO HAVE
BEEN THE GROUND ON WHICH THE COURT OF APPEALS OF NEW YORK JUSTIFIED THE
SEARCH, SINCE IT "AFFIRMED ON THE BASIS OF SEC. 180-A, WHICH AUTHORIZES
SUCH A SEARCH WHEN THE OFFICER 'REASONABLY SUSPECTS THAT HE IS IN
DANGER OF LIFE OR LIMB.'"  ANTE, AT 63.  AND IT SEEMS TO ME TO BE A
REASONABLE INFERENCE TAHT WHEN SIBRON, WHO HAD BEEN APPROACHING AND
TALKING TO ADDICTS FOR EIGHT HOURS, REACHED HIS HAND QUICKLY TO HIS
LEFT COAT POCKET, HE MIGHT WELL BE REACHING FOR A GUN.  AND AS THE
COURT HAS EMPHASIZED TODAY IN ITS OPINIONS IN THE OTHER STOP-AND-FRISK
CASES, A POLICEMAN UNDER SUCH CIRCUMSTANCES HAS TO ACT IN A SPLIT
SECOND; DELAY MAY MEAN DEATH FOR HIM.  NO ONE CAN KNOW WHEN AN ADDICT
MAY BE MOVED TO SHOOT OR STAB, AND PARTICULARLY WHEN HE MOVES HIS HAND
HURRIEDLY TO A POCKET WHERE WEAPONS ARE KNOWN TO BE HABITUALLY CARRIED,
IT BEHOOVES AN OFFICER WHO WANTS TO LIVE TO ACT AT ONCE AS THIS OFFICER
DID.  IT IS TRUE THAT THE OFFICER MIGHT ALSO HAVE THOUGHT SIBRON WAS
ABOUT TO GET HEROIN INSTEAD OF A WEAPON.  BUT THE LAW ENFORCEMENT
OFFICERS ALL OVER THE NATION HAVE GAINED LITTLE PROTECTION FROM THE
COURTS THROUGH OPINIONS HERE IF THEY ARE NOW LEFT HELPLESS TO ACT IN
SELF DEFENSE WHEN A MAN ASSOCIATING INTIMATELY AND CONTINUOUSLY WITH
ADDICTS, UPON MEETING AN OFFICER, SHIFTS HIS HAND IMMEDIATELY TO A
POCKET WHERE WEAPONS ARE CONSTANTLY CARRIED. 

IN APPRAISING THE FACTS AS I HAVE I REALIZE THAT THE COURT HAS
CHOSEN TO DRAW INFERENCES DIFFERENT FROM MINE AND THOSE DRAWN BY THE
COURTS BELOW.  THE COURT FOR ILLUSTRATION DRAWS INFERENCES THAT THE
OFFICER'S TESTIMONY AT THE HEARING CONTINUED UPON THE "PLAIN PREMISE
THAT HE HAD BEEN LOOKING FOR NARCOTICS ALL THE TIME."  ANTE, AT 47, N.
4.  BUT THIS COURT IS HARDLY, AT THIS DISTANCE FROM THE PLACE AND
ATMOSPHERE OF THE TRIAL, IN A POSITION TO OVERTURN THE TRIAL AND
APPELLATE COURTS ON ITS OWN INDEPENDENT FINDING OF AN UNSPOKEN
"PREMISE" OF THE OFFICER'S INNER THOUGHTS. 

IN ACTING UPON ITS OWN FINDINGS AND REJECTING THOSE OF THE LOWER
STATE COURTS, THIS COURT, SITTING IN THE MARBLE HALLS OF THE SUPREME
COURT BUILDING IN WASHINGTON, D.C., SHOULD BE MOST CAUTIOUS.  DUE TO
OUR HOLDING IN MAPP V. OHIO, 367 U.S. 643, WE ARE DUE TO GET FOR REVIEW
LITERALLY THOUSANDS OF CASES RAISING QUESTIONS LIKE THOSE BEFORE US
HERE.  IF WE ARE SETTING OURSELVES METICULOUSLY TO REVIEW ALL SUCH
FINDINGS OUR TASK WILL BE ENDLESS AND MANY WILL RUE THE DAY WHAN MAPP
WAS DECIDED.  IT IS NOT ONLY WISE BUT IMPERATIVE THAT WHERE FINDINGS OF
THE FACTS OF REASONABLENESS AND PROBABLE CAUSE ARE INVOLVED IN SUCH
STATE CASES, WE SHOULD NOT OVERTURN STATE COURT FINDINGS UNLESS IN THE
MOST EXTRAVAGANT AND EGREGIOUS ERRORS.  IT SEEMS FANTASTIC TO ME EVEN
TO SUGGEST THAT THIS IS SUCH A CASE.  I WOULD LEAVE THESE STATE COURT
HOLDINGS ALONE. 

SECOND, I THINK ALSO THAT THERE WAS SUFFICIENT EVIDENCE HERE ON
WHICH TO BASE FINDINGS THAT AFTER RECOVERY OF THE HEROIN, IN
PARTICULAR, AN OFFICER COULD REASONABLY BELIEVE THERE WAS PROBABLE
CAUSE TO CHARGE SIBRON WITH VIOLATING NEW YORK'S NARCOTICS LAWS.  AS I
HAVE PREVIOUSLY ARGUED, THERE WAS, I THINK, AMPLE EVIDENCE TO GIVE THE
OFFICER PROBABLE CAUSE TO BELIEVE SIBRON HAD A DANGEROUS WEAPON AND
THAT HE MIGHT USE IT.  UNDER SUCH CIRCUMSTANCES THE OFFICER HAD A RIGHT
TO SEARCH HIM IN THE VERY LIMITED FASHION HE DID HERE.  SINCE,
THEREFORE, THIS WAS A REASONABLE AND JUSTIFIED SEARCH, THE USE OF THE
HEROIN DISCOVERED BY IT WAS ADMISSIBLE IN EVIDENCE. 

I WOULD AFFIRM. 

KALMAN FINKEL AND GRETCHEN WHITE OBERMAN AGRUED THE CAUSE AND FILED
BRIEFS FOR APPELLANT IN NO. 63.  ROBERT STUART FRIEDMAN ARGUED THE
CAUSE AND FILED A BRIEF FOR APPELLANT IN NO. 74. 

WILLIAM I. SIEGEL ARGUED THE CAUSE FOR APPELLEE IN NO. 63.  WITH HIM
ON THE BRIEF WAS AARON E. KOOTA.  JAMES J. DUGGAN ARGUED THE CAUSE FOR
APPELLEE IN NO. 74.  WITH HIM ON THE BRIEFS WAS LEONARD RUBENFELD. 

MICHAEL JUVILER ARGUED THE CAUSE FOR THE DISTRICT ATTORNEY OF NEW
YORK COUNTY, AS AMICUS CURIAE, IN NO. 63.  WITH HIM ON THE BRIEF FILE
IN BOTH CASES WERE FRANK S. HOGAN AND H. RICHARD UVILLER.  MR. SIEGEL
ARGUED THE CAUSE FOR THE DISTRICT ATTORNEY OF KINGS COUNTY, AS AMICUS
CURIAE, IN NO. 74. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL IN BOTH CASES, WERE FILED BY
JACK GREENBERG, JAMES M. NABRIT III, MICHAEL MELTSNER, MELVYN ZARR, AND
ANTHONY G. AMSTERDAM FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,
INC., AND BY BERNARD A. BERKMAN, MELVIN L. WULF, AND ALAN H. LEVINE FOR
THE AMERICAN CIVIL LIBERTIES UNION ET AL. 

LOUIS J. LEFKOWITZ, PRO SE, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT
ATTORNEY GENERAL, AND MARIA L. MARCUS AND BRENDA SOLOFF, ASSISTANT
ATTORNEYS GENERAL, FILED A BIREF FOR THE ATTORNEY GENERAL OF NEW YORK,
AS AMICUS CURIAE, URGING AFFIRMANCE IN BOTH CASES. 
..END :





FLAST V. COHEN, 392 U.S. 83 


       FLAST ET AL. V. COHEN, SECRETARY OF HEALTH, EDUCATION, AND

           WELFARE, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

        NO. 416.  ARGUED MARCH 12, 1968.-- DECIDED JUNE 10, 1968. 


APPELLANT TAXPAYERS ALLEGE THAT FEDERAL FUNDS HAVE BEEN DISBURSED BY
APPELLEE FEDERAL OFFICIALS UNDER THE ELEMENTARY AND SECONDARY EDUCATION
ACT OF 1965 TO FINANCE INSTRUCTION AND THE PURCHASE OF EDUCATIONAL
MATERIALS FOR USE IN RELIGIOUS AND SECTARIAN SCHOOLS, IN VIOLATION OF
THE ESTABLISHMENT AND FREE EXERCISE CLAUSES OF THE FIRST AMENDMENT. 
APPELLANTS SOUGHT A DECLARATION THAT THE EXPENDITURES WERE NOT
AUTHORIZED BY THE ACT OR, IN THE ALTERNATIVE, THAT THE ACT IS TO THAT
EXTENT UNCONSTITUTIONAL, AND REQUESTED THE CONVENING OF A THREE-JUDGE
COURT.  A THREE-JUDGE COURT RULED, ON THE AUTHORITY OF FROTHINGHAM V.
MELLON, 262 U.S. 447 (1923), THAT APPELLANTS LACKED STANDING TO
MAINTAIN THE ACTION.  HELD: 

1.  THE THREE-JUDGE COURT WAS PROPERLY CONVENED, AS THE
CONSTITUTIONAL ATTACK, EVEN THOUGH FOCUSED ON THE PROGRAM'S OPERATION
IN NEW YORK CITY, WOULD IF SUCCESSFUL AFFECT THE ENTIRE REGULATORY
SCHEME OF THE STATUTE, AND THE COMPLAINT ALLEGED A CONSTITUTIONAL
GROUND FOR RELIEF, ALBEIT ONE COUPLED WITH AN ALTERNATIVE
NONCONSTITUTIONAL GROUND.  PP. 88-91. 

2.  THERE IS NO ABSOLUTE BAR IN ART III OF THE CONSTITUTION TO SUITS
BY FEDERAL TAXPAYERS CHALLENGING ALLEGEDLY UNCONSTITUTIONAL FEDERAL
TAXING AND SPENDING PROGRAMS SINCE THE TAXPAYERS MAY OR MAY NOT HAVE
THE REQUISITE PERSONAL STAKE IN THE OUTCOME.  PP. 91-101. 

3.  TO MAINTAIN AN ACTION CHALLENGING THE CONSTITUTIONALITY OF A
FEDERAL SPENDING PROGRAM, INDIVIDUALS MUST DEMONSTRATE THE NECESSARY
STAKE AS TAXPAYERS IN THE OUTCOME OF THE LITIGATION TO SATISFY ART. III
REQUIREMENTS.  PP. 102-103. 

(A) TAXPAYERS MUST ESTABLISH A LOGICAL LINK BETWEEN THAT STATUS AND
THE TYPE OF LEGISLATIVE ENACTMENT ATTACKED, AS IT WILL NOT BE
SUFFICIENT TO ALLEGE AN INCIDENTAL EXPENDITURE OF TAX FUNDS IN THE
ADMINISTRATION OF AN ESSENTIALLY REGULATORY STATUTE.  P. 102. 

(B) TAXPAYERS MUST ALSO ESTABLISH A NEXUS BETWEEN THAT STATUS AND
THE PRECISE NATURE OF THE CONSTITUTIOAL INFRINGEMENT ALLEGED.  THEY
MUST SHOW THAT THE STATUTE EXCEEDS SPECIFIC CONSTITUTIONAL LIMITATIONS
ON THE EXERCISE OF THE TAXING AND SPENDING POWER AND NOT SIMPLY THAT
THE ENACTMENT IS GENERALLY BEYOND THE POWERS DELEGATED TO CONGRESS BY
ART. I, SEC. 8, PP. 102-103. 

4.  THE TAXPAYER-APPELLANTS HERE HAVE STANDING CONSISTENT WITH ART.
III TO INVOKE FEDERAL JUDICIAL POWER SINCE THEY HAVE ALLEGED THAT TAX
MONEY IS BEING SPENT IN VIOLATION OF A SPECIFIC CONSTITUTIONAL
PROTECTION AGAINST THE ABUSE OF LEGISLATIVE POWER, I.E., THE MELLON,
SUPRA, DISTINGUISHED.  PP. 103-106. 

271 F.SUPP.  1, REVERSED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN FROTHINGHAM V. MELLON, 262 U.S. 447 (1923), THIS COURT RULED THAT
A FEDERAL TAXPAYER IS WITHOUT STANDING TO CHALLENGE THE
CONSTITUTIONALITY OF A FEDERAL STATUTE.  THAT RULING HAS STOOD FOR 45
YEARS AS AN IMPENETRABLE BARRIER TO SUITS AGAINST ACTS OF CONGRESS
BROUGHT BY INDIVIDUALS WHO CAN ASSERT ONLY THE INTEREST OF FEDERAL
TAXPAYERS.  IN THIS CASE, WE MUST DECIDE WHETHER THE FROTHINGHAM
BARRIER SHOULD BE LOWERED WHEN A TAXPAYER ATTACKS A FEDERAL STATUTE ON
THE GROUND THAT IT VIOLATES THE ESTABLISHMENT AND FREE EXERCISE CLAUSES
OF THE FIRST AMENDMENT. 

APPELLANTS FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK TO ENJOIN THE ALLEGEDLY UNCONSTITUTIONAL
EXPENDITURE OF FEDERAL FUNDS UNDER TITLES I AND II OF THE ELEMENTARY
AND SECONDARY EDUCATION ACT OF 1965, 79 STAT. 27, 20 U.S.C. 241A ET
SEQ., 821 ET SEQ. (1964 ED., SUPP. II).  THE COMPLAINT ALLEGED THAT THE
SEVEN APPELLANTS HAD AS A COMMON ATTRIBUTE THAT "EACH PAYS) INCOME
TAXES OF THE UNITED STATES," AND IT IS CLEAR FROM THE COMPLAINT THAT
THE APPELLANTS WERE RESTING THEIR STANDING TO MAINTAIN THE ACTION
SOLELY ON THEIR STATUS AS FEDERAL TAXPAYERS.  /1/  THE APPELLEES, WHO
ARE CHARGED BY CONGRESS WITH ADMINISTERING THE ELEMENTARY AND SECONDARY
EDUCATION ACT OF 1965, WERE SUED IN THEIR OFFICIAL CAPACITIES. 

THE GRAVAMEN OF THE APPELLANTS' COMPLAINT WAS THAT FEDERAL FUNDS
APPROPRIATED UNDER THE ACT WERE BEING USED TO FINANCE INSTRUCTION IN
READING, ARITHMETIC, AND OTHER SUBJECTS IN RELIGIOUS SCHOOLS, AND TO
PURCHASE TEXTBOOKS AND OTHER INSTRUCTIONAL MATERIALS FOR USE IN SUCH
SCHOOLS.  SUCH EXPENDITURES WERE ALLEGED TO BE IN CONTRAVENTION OF THE
ESTABLISHMENT AND FREE EXERCISE CLAUSES OF THE FIRST AMENDMENT. 
APPELLANTS' CONSTITUTIONAL ATTACK FOCUSED ON THE STATUTORY CRITERIA
WHICH STATE AND LOCAL AUTHORITIES MUST MEET TO BE ELIGIBLE FOR FEDERAL
GRANTS UNDER THE ACT.  TITLE I OF THE ACT ESTABLISHES A PROGRAM FOR
FINANCIAL ASSISTANCE TO LOCAL EDUCATIONAL AGENCIES FOR THE EDUCATION OF
LOW-INCOME FAMILIES.  FEDERAL PAYMENTS ARE MADE TO STATE EDUCATIONAL
AGENCIES, WHICH PASS THE PAYMENTS ON IN THE FORM OF GRANTS TO LOCAL
EDUCATIONAL AGENCIES.  UNDER SEC. 205 OF THE ACT, 20 U.S.C. 241E, A
LOCAL EDUCATIONAL AGENCY WISHING TO HAVE A PLAN OR PROGRAM FUNDED BY A
GRANT MUST SUBMIT THE PLAN OR PROGRAM TO THE APPROPRIATE STATE
EDUCATIONAL AGENCY FOR APPROVAL.  THE PLAN OR PROGRAM MUST BE
"CONSISTENT WITH SUCH BASIC CRITERIA AS THE (APPELLEE UNITED STATES
COMMISSIONER OF EDUCATION) MAY ESTABLISH."  THE SPECIFIC CRITERION OF
THAT SECTION ATTACKED BY THE APPELLANTS IS THE REQUIREMENT 

"THAT, TO THE EXTENT CONSISTENT WITH THE NUMBER OF EDUCATIONALLY
DEPRIVED CHILDREN IN THE SCHOOL DISTRICT OF THE LOCAL EDUCATIONAL
AGENCY WHO ARE ENROLLED IN PRIVATE ELEMENTARY AND SECONDARY SCHOOLS,
SUCH AGENCY HAS MADE PROVISION FOR INCLUDING SPECIAL EDUCATIONAL
SERVICES AND ARRANGEMENTS (SUCH AS DUAL ENROLLMENT, EDUCATIONAL RADIO
AND TELEVISION, AND MOBILE EDUCATIONAL SERVICES AND EQUIPMENT) IN WHICH
SUCH CHILDREN CAN PARTICIPATE.  . . . "  20 U.S.C. 241EA)(2).  UNDER
SEC. 206 OF THE ACT, 20 U.S.C. 241F, THE COMMISSIONER OF EDUCATION IS
GIVEN BROAD POWERS TO SUPERVISE A STATE'S PARTICIPATION IN TITLE I
PROGRAMS AND GRANTS.  TITLE II OF THE ACT ESTABLISHES A PROGRAM OF
FEDERAL GRANTS FOR THE ACQUISITION OF SCHOOL LIBRARY RESOURCES,
TEXTBOOKS, AND OTHER PRINTED AND PUBLISHED INSTRUCTIONAL MATERIALS "FOR
THE USE OF CHILDREN AND TEACHERS IN PUBLIC AND PRIVATE ELEMENTARY AND
SECONDARY SCHOOLS."  20 U.S.C. 821.  A STATE WISHING TO PARTICIPATE IN
THE PROGRAM MUST SUBMIT A PLAN TO THE COMMISSIONER FOR APPROVAL, AND
THE PLAN MUST 

"PROVIDE ASSURANCE THAT TO THE EXTENT CONSISTENT WITH LAW SUCH
LIBRARY RESOURCES, TEXTBOOKS, AND OTHER INSTRUCTIONAL MATERIALS WILL BE
PROVIDED ON AN EQUITABLE BASIS FOR THE USE OF CHILDREN AND TEACHERS IN
PRIVATE ELEMENTARY AND SECONDARY SCHOOLS IN THE STATE.  . . . " 20
U.S.C. 823(A)(3)(B).  WHILE DISCLAIMING ANY INTENT TO CHALLENGE AS
UNCONSTITUTIONAL ALL PROGRAMS UNDER TITLE I OF THE ACT, THE COMPLAINT
ALLEGES THAT FEDERAL FUNDS HAVE BEEN DISBURSED UNDER THE ACT, "WITH THE
CONSENT AND APPROVAL OF THE (APPELLEES)," AND THAT SUCH FUNDS HAVE BEEN
USED AND WILL CONTINUE TO BE USED TO FINANCE "INSTRUCTION IN READING,
ARITHMETIC AND OTHER SUBJECTS AND FOR GUIDANCE IN RELIGIOUS AND
LIBRARY MATERIALS FOR USE IN RELIGIOUS AND SECTARIAN SCHOOLS."  SUCH
EXPENDITURES OF FEDERAL TAX FUNDS, APPELLANTS ALLEGED, VIOLATE THE
FIRST AMENDMENT BECAUSE "THEY CONSTITUTE A LAW RESPECTING AN
ESTABLISHMENT OF RELIGION" AND BECAUSE "THEY PROHIBIT THE FREE EXERCISE
OF RELIGION ON THE PART OF THE (APPELLANTS) . . . BY REASON OF THE FACT
THAT THEY CONSTITUTE COMPULSORY TAXATION FOR RELIGIOUS PURPOSES."  THE
COMPLAINT ASKED FOR A DECLARATION THAT APPELLEES' ACTIONS IN APPROVING
THE EXPENDITURE OF FEDERAL FUNDS FOR THE ALLEGED PURPOSES WERE NOT
AUTHORIZED BY THE ACT OR, IN THE ALTERNATIVE, THAT IF APPELLEES'
ACTIONS ARE DEEMED WITHIN THE AUTHORITY AND INTENT OF THE ACT, "THE ACT
IS TO THAT EXTENT UNCONSTITUTIONAL AND VOID."  THE COMPLAINT ALSO
PRAYED FOR AN INJUNCTION TO ENJOIN APPELLEES FROM APPROVING ANY
EXPENDITURE OF FEDERAL FUNDS FOR THE ALLEGEDLY UNCONSTITUTIONAL
PURPOSES.  THE COMPLAINT FURTHER REQUESTED THAT A THREE-JUDGE COURT BE
CONVENED AS PROVIDED IN 28 U.S.C. 2282, 2284. 

THE GOVERNMENT MOVED TO DIMSISS THE COMPLAINT ON THE GROUND THAT
APPELLANTS LACKED STANDING TO MAINTAIN THE ACTION.  DISTRICT JUDGE
FRANKEL, WHO CONSIDERED THE MOTION, RECOGNIZED THAT FROTHINGHAM V.
MELLON, SUPRA, PROVIDED "POWERFUL" SUPPORT FOR THE GOVERNMENT'S
POSITION, BUT HE RULED THAT THE STANDING QUESTION WAS OF SUFFICIENT
SUBSTANCE TO WARRANT THE CONVENING OF A THREE-JUDGE COURT TO DECIDE THE
QUESTION.  267 F.SUPP.  351 (1967).  THE THREE-JUDGE COURT RECEIVED
BRIEFS AND HEARD ARGUMENTS LIMITED TO THE STANDING QUESTION, AND THE
COURT RULED ON THE AUTHORITY OF FROTHINGHAM THAT APPELLANTS LACKED
STANDING.  JUDGE FRANKEL DISSENTED.  271 F.SUPP.  1 (1967).  FROM THE
DISMISSAL OF THEIR COMPLAINT ON THAT GROUND, APPELLANTS APPEALED
DIRECTLY TO THIS COURT, 28 U.S.C. 1253, AND WE NOTED PROBABLE
JURISDICTION.  389 U.S. 895 (1967).  FOR REASONS EXPLAINED AT LENGTH
BELOW, WE HOLD THAT APPELLANTS DO HAVE STANDING AS FEDERAL TAXPAYERS TO
MAINTAIN THIS ACTION, AND THE JUDGMENT BELOW MUST BE REVERSED. 

        I. 

WE MUST DEAL FIRST WITH THE GOVERNMENT'S CONTENTION THAT THIS COURT
LACKS JURISDICTION ON DIRECT APPEAL BECAUSE A THREE-JUDGE COURT WAS
IMPROPERLY CONVENED BELOW.  /2/  UNDER 28 U.S.C. 1253, DIRECT APPEAL TO
THIS COURT FROM A DISTRICT COURT LIES ONLY "FROM AN ORDER GRANTING OR
DENYING . . . AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL
ACTION, SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD
AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES."  THUS, IF THE
GOVERNMENT IS CORRECT, WE LACK JURISDICTION OVER THIS DIRECT APPEAL. 

THE GOVERNMENT'S ARGUMENT ON THIS QUESTION IS TWO-PRONGED.  FIRST,
NOTING THAT APPELLANTS HAVE CONCEDED THAT THE CASE SHOULD BE DEEMED ONE
LIMITED TO THE PRACTICES OF THE NEW YORK CITY BOARD OF EDUCATION, THE
GOVERNMENT CONTENDS THAT APPELLANTS WISH ONLY TO FORBID SPECIFIC LOCAL
PROGRAMS WHICH THEY FIND OBJECTIONAL AND NOT TO ENJOIN THE OPERATION OF
THE BROAD RANGE OF PROGRAMS UNDER THE STATUTORY SCHEME.  ONLY IF THE
LATTER RELIEF IS SOUGHT, THE GOVERNMENT ARGUES, CAN A THREE-JUDGE COURT
PROPERLY BE CONVENED UNDER 28 U.S.C. 2282.  WE CANNOT ACCEPT THE
GOVERNMENT'S ARGUMENT IN THE CONTEXT OF THIS CASE.  IT IS TRUE THAT THE
APPELLANTS' COMPLAINT MAKES SPECIFIC REFERENCE TO THE NEW YORK CITY
BOARD OF EDUCATION'S PROGRAMS WHICH ARE FUNDED UNDER THE CHALLENGED
STATUTE, AND WE CAN ASSUME THAT APPELLANTS' PROOF AT TRIAL WOULD FOCUS
ON THOSE NEW YORK CITY PROGRAMS.  HOWEVER, WE VIEW THESE ALLEGATIONS OF
THE COMPLAINT AS IMPARTING SPECIFITY AND FOCUS TO THE ISSUES IN THE
LAWSUIT AND NOT AS LIMITING THE IMPACT OF THE CONSTITUTIONAL CHALLENGE
MADE IN THIS CASE.  THE INJUNCTIVE RELIEF SOUGHT BY APPELLANTS IS NOT
LIMITED TO PROGRAMS IN OPERATION IN NEW YORK CITY BUT EXTENDS TO ANY
PROGRAM THAT WOULD HAVE THE UNCONSTITUTIONAL FEATURES ALLEGED IN THE
COMPLAINT.  CONGRESS ENACTED SEC. 2282 "TO PREVENT A SINGLE FEDERAL
JUDGE FROM BEING ABLE TO PARALYZE TOTALLY THE OPERATION OF AN ENTIRE
REGULATORY SCHEME . . . BY ISSUANCE OF A BROAD INJUNCTIVE ORDER." 
KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, 154 (1963).  IF THE DISTRICT
COURT IN THIS CASE WERE TO RULE FOR APPELLANTS ON THE MERITS OF THEIR
CONSTITUTIONAL ATTACK ON NEW YORK CITY'S FEDERALLY FUNDED PROGRAMS,
THAT DECISION WOULD CAST SUFFICIENT DOUBT ON SIMILAR PROGRAMS ELSEWHERE
AS TO CAUSE CONFUSION APPROACHING PARALYSIS TO SURROUND THE CHALLENGED
STATUTE.  THEREFORE, EVEN IF THE INJUNCTION WHICH MIGHT ISSUE IN THIS
CASE WERE NARROWER THAN THAT SOUGHT BY APPELLANTS, WE ARE SATISFIED
THAT THE LEGISLATIVE POLICY UNDERLYING SEC. 2282 WAS SERVED BY THE
CONVENING OF A THREE-JUDGE COURT, DESPITE APPELLANTS' FOCUS ON NEW YORK
CITY'S PROGRAMS. 

SECONDLY, THE GOVERNMENT ARGUES THAT A THREE-JUDGE COURT SHOULD NOT
HAVE BEEN CONVENED BECAUSE APPELLANTS QUESTION NOT THE
CONSTITUTIONALITY OF THE ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965
BUT ITS ADMINISTRATION.  /3/  THE DECISION IN ZEMEL V. RUSK, 381 U.S. 1
(1965), IS DISPOSITIVE ON THIS ISSUE.  IT IS TRUE THAT APPELLANTS'
COMPLAINT STATES A NONCONSTITUTIONAL GROUND FOR RELIEF, NAMELY, THAT
APPELLEES' ACTIONS IN APPROVING THE EXPENDITURE OF FEDERAL FUNDS FOR
ALLEGEDLY UNCONSTITUTIONAL PROGRAMS ARE IN EXCESS OF THEIR AUTHORITY
UNDER THE ACT.  HOWEVER, THE COMPLAINT ALSO REQUESTS AN ALTERNATIVE AND
CONSTITUTIONAL GROUND FOR RELIEF, NAMELY, A DECLARATION THAT, IF
APPELLEES' ACTIONS "ARE WITHIN THE AUTHORITY AND INTENT OF THE ACT, THE
ACT IS TO THAT EXTENT UNCONSTITUTIONAL AND VOID."  THE COURT NOTED IN
ZEMEL V. RUSK, SUPRA, "(WE HAVE OFTEN HELD THAT A LITIGANT NEED NOT
ABANDON HIS NONCONSTITUTIONAL ARGUMENTS IN ORDER TO OBTAIN A THREE
JUDGE COURT."  381 U.S.,AT 5-6.  SEE ALSO FLORIDA LIME GROWERS V.
JACOBSEN, 362 U.S. 73 (1960); ALLEN V. GRAND CENTRAL AIRCRAFT CO., 347
U.S. 535 (1954).  THE COMPLAINT IN THIS CASE FALLS WITHIN THAT RULE. 

THUS, SINCE THE THREE-JUDGE COURT WAS PROPERLY CONVENED BELOW, /4/
DIRECT APPEAL TO THIS COURT IS PROPER.  WE TURN NOW TO THE STANDING
QUESTION PRESENTED BY THIS CASE. 

        II. 

THIS COURT FIRST FACED SQUARELY /5/  THE QUESTION WHETHER A LITIGANT
ASSERTING ONLY HIS STATUS AS A TAXPAYER HAS STANDING TO MAINTAIN A SUIT
IN A FEDERAL COURT IN FROTHINGHAM V. MELLON, SUPRA, AND THAT DECISION
MUST BE THE STARTING POINT FOR ANALYSIS IN THIS CASE.  THE TAXPAYER IN
FROTHINGHAM ATTACKED AS UNCONSTITUTIONAL THE MATERNITY ACT OF 1921, 42
STAT. 224, WHICH ESTABLISHED A FEDERAL PROGRAM OF GRANTS TO THOSE
STATES WHICH WOULD UNDERTAKE PROGRAMS TO REDUCE MATERNAL AND INFANT
MORTALITY.  THE TAXPAYER ALLEGED THAT CONGRESS, IN ENACTING THE
CHALLENGED STATUTE, HAD EXCEEDED TEH POWERS DELEGATED TO IT UNDER
ARTICLE I OF THE CONSTITUTION AND HAD INVADED THE LEGISLATIVE PROVINCE
RESERVED TO THE SEVERAL STATES BY THE TENTH AMENDMENT.  THE TAXPAYER
COMPLAINED THAT THE RESULT OF THE ALLEGEDLY UNCONSTITUTIONAL ENACTMENT
WOULD BE TO INCREASE HER FUTURE FEDERAL TAX LIABILITY AND "THEREBY TAKE
HER PROPERTY WITHOUT DUE PROCESS OF LAW."  262 U.S.,AT 486.  THE COURT
NOTED THAT A FEDERAL TAXPAYER'S "INTEREST IN THE MONEYS OF THE TREASURY
. . . IS COMPARATIVELY MINUTE AND INDETERMINABLE" AND THAT "THE EFFECT
UPON FUTURE TAXATION, OF ANY PAYMENT OUT OF THE (TREASURY'S) FUNDS, . .
. (IS) REMOTE, FLUCTUATING AND UNCERTAIN."  ID., AT 487.  AS A RESULT,
THE COURT RULED THAT THE TAXPAYER HAD FAILED TO ALLEGE THE TYPE OF
"DIRECT INJURY" NECESSARY TO CONFER STANDING.  ID., AT 488. 

ALTHOUGH THE BARRIER FROTHINGHAM ERECTED AGAINST FEDERAL TAXPAYER
SUITS HAS NEVER BEEN BREACHED, THE DECISION HAS BEEN THE SOURCE OF SOME
CONFUSION AND THE OBJECT OF CONSIDERABLE CRITICISM.  THE CONFUSION HAS
DEVELOPED AS COMMENTATORS HAVE TRIED TO DETERMINE WHETHER FROTHINGHAM
ESTABLISHES A CONSTITUTIONAL BAR TO TAXPAYER SUITS OR WHETHER THE COURT
WAS SIMPLY IMPOSING A RULE OF SELF-RESTRAINT WHICH WAS NOT
CONSTITUTIONALLY COMPELLED.  /6/  THE CONFLICTING VIEWPOINTS ARE
REFLECTED IN THE ARGUMENTS MADE TO THIS COURT BY THE PARTIES IN THIS
CASE.  THE GOVERNMENT HAS PRESSED UPON US THE VIEW THAT FROTHINGHAM
ANNOUNCED A CONSTITUTIONAL RULE, COMPELLED BY THE ARTICLE III
LIMITATIONS ON FEDERAL COURT JURISDICTION AND GROUNDED IN
CONSIDERATIONS OF THE DOCTRINE OF SPEARATION OR POWERS.  APPELLANTS,
HOWEVER, INSIST THAT FROTHINGHAM EXPRESSED NO MORE THAN A POLICY OF
JUDICIAL SELF-RESTRAINT WHICH CAN BE DISREGARDED WHEN COMPELLING
REASONS FOR ASSUMING JURISDICTION OVER A TAXPAYER'S SUIT EXIST.  THE
OPINION DELIVERED IN FROTHINGHAM CAN BE READ TO SUPPORT EITHER
POSITION.  /7/  THE CONCLUDING SENTENCE OF THE OPINION STATES THAT, TO
TAKE JURISDICTION OF THE TAXPAYER'S SUIT, "WOULD BE NOT TO DECIDE A
JUDICIAL CONTROVERSY, BUT TO ASSUME A POSITION OF AUTHORITY OVER THE
GOVERNMENTAL ACTS OF ANOTHER AND CO-EQUAL DEPARTMENT, AN AUTHORITY
WHICH PLAINLY WE DO NOT POSSESS."  262 U.S.,AT 489.  YET THE CONCRETE
REASONS GIVEN FOR DENYING STANDING TO A FEDERAL TAXPAYER SUGGEST THAT
THE STANDING TO A FEDERAL TAXPAYER SUGGEST THAT THE COURT'S HOLDING
RESTS ON SOMETHING LESS THAN A CONSTITUTIONAL FOUNDATION.  FOR EXAMPLE,
THE COURT CONCEDED THAT STANDING HAD PREVIOUSLY BEEN CONFERRED ON
MUNICIPAL TAXPAYERS TO SUE IN THAT CAPACITY.  HOWEVER, THE COURT VIEWED
THE INTEREST OF A FEDERAL TAXPAYER IN TOTAL FEDERAL TAX REVENUES AS
"COMPARATIVELY MINUTE AND INDETERMINABLE" WHEN MEASURED AGAINST A
MUNICIPAL TAXPAYER'S INTEREST IN A SMALLER CITY TREASURY.  ID., AT 486
487.  THIS SUGGESTS THAT THE PETITIONER IN FROTHINGHAM WAS DENIED
STANDING NOT BECAUSE SHE WAS A TAXPAYER BUT BECAUSE HER TAX BILL WAS
NOT LARGE ENOUGH.  IN ADDITION, THE COURT SPOKE OF THE "ATTENDANT
INCONVENIENCES" OF ENTERTAINING THAT TAXPAYER'S SUIT BECAUSE IT MIGHT
OPEN THE DOOR OF FEDERAL COURTS TO COUNTLESS SUCH SUITS "IN RESPECT OF
EVERY OTHER APPROPRIATION ACT AND STATUTE WHOSE ADMINISTRATION REQUIRES
THE OUTLAY OF PUBLIC MONEY, AND WHOSE VALIDITY MAY BE QUESTIONED." 
ID., AT 487.  SUCH A STATEMENT SUGGESTS PURE POLICY CONSIDERATIONS. 

TO THE EXTENT THAT FROTHINGHAM HAS BEEN VIEWED AS RESTING ON POLICY
CONSIDERATIONS, IT HAS BEEN CRITICIZED AS DEPENDING ON ASSUMPTIONS NOT
CONSISTENT WITH MODERN CONDITIONS.  FOR EXAMPLE, SOME COMMENTATORS HAVE
POINTED OUT THAT A NUMBER OF CORPORATE TAXPAYERS TODAY HAVE A FEDERAL
TAX LIABILITY RUNNING INTO HUNDREDS OF MILLIONS OF DOLLARS, AND SUCH
TAXPAYERS HAVE A FAR GREATER MONETARY STAKE IN THE FEDERAL TREASURY
THAN THEY DO IN ANY MUNICIPAL TREASURY.  /8/  TO SOME DEGREE, THE FEAR
EXPRESSED IN FROTHINGHAM THAT ALLOWING ONE TAXPAYER TO SUE WOULD
INUNDATE THE FEDERAL COURTS WITH COUNTLESS SIMILAR SUITS HAS BEEN
MITIGATED BY THE READY AVAILABILITY OF THE DEVICES OF CLASS ACTIONS AND
JOINDER UNDER THE FEDERAL RULES OF CIVIL PROCEDURE, ADOPTED SUBSEQUENT
TO THE DECISION IN FROTHINGHAM.  /9/  WHATEVER THE MERITS OF THE
CURRENT DEBATE OVER FROTHINGHAM, ITS VERY EXISTENCE SUGGESTS THAT WE
SHOULD UNDERTAKE A FRESH EXAMINATION OF THE LIMITATIONS UPON STANDING
TO SUE IN A FEDERAL COURT AND THE APPLICATION OF THOSE LIMITATIONS TO
TAXPAYER SUITS. 

  III. 

THE JURISDICTION OF FEDERAL COURTS IS DEFINED AND LIMITED BY ARTICLE
III OF THE CONSTITUTION.  IN TERMS RELEVANT TO THE QUESTION FOR
DECISION IN THIS CASE, THE JUDICIAL POWER OF FEDERAL COURTS IS
CONSTITUTIONALLY RESTRICTED TO "CASES" AND "CONTROVERSIES."  AS IS SO
OFTEN THE SITUATION IN CONSTITUTIONAL ADJUDICATION, THOSE TWO WORDS
HAVE AN ICEBERG QUALITY, CONTAINING BENEATH THEIR SURFACE SIMPLICITY
SUBMERGED COMPLEXITIES WHICH GO TO THE VERY HEART OF OUR CONSTITUTIONAL
FORM OF GOVERNMENT.  EMBODIED IN THE WORDS "CASES" AND "CONTROVERSIES"
ARE TWO COMPLEMENTARY BUT SOMEWHAT DIFFERENT LIMITATIONS.  IN PART
THOSE WORDS LIMIT THE BUSINESS OF FEDERAL COURTS TO QUESTIONS PRESENTED
IN AN ADVERSARY CONTEXT AND IN A FORM HISTORICALLY VIEWED AS CAPABLE OF
RESOLUTION THROUGH THE JUDICIAL PROCESS.  AND IN PART THOSE WORDS
DEFINE THE ROLE ASSIGNED TO THE JUDICIARY IN A TRIPARTITE ALLOCATION OF
POWER TO ASSURE THAT THE FEDERAL COURTS WILL NOT INTRUDE INTO AREAS
COMMITTED TO THE OTHER BRANCHES OF GOVERNMENT.  JUSTICIABILITY IS THE
TERM OF ART EMPLOYED TO GIVE EXPRESSION TO THIS DUAL LIMITATION PLACED
UPON FEDERAL COURTS BY THE CASE-AND-CONTROVERSY DOCTRINE. 

JUSTICIABILITY IS ITSELF A CONCEPT OF UNCERTAIN MEANING AND SCOPE. 
ITS REACH IS ILLUSTRATED BY THE VARIOUS GROUNDS UPON WHICH QUESTIONS
SOUGHT TO BE ADJUDICATED IN FEDERAL COURTS HAVE BEEN HELD NOT TO BE
JUSTICIABLE.  THUS, NO JUSTICIABLE CONTROVERSY IS PRESENTED WHEN THE
PARTIES SEEK ADJUDICATION OF ONLY A POLITICAL QUESTION, /10/  WHEN THE
PARTIES ARE ASKING FOR AN ADVISORY OPINION, /11/  WHEN THE QUESTION
SOUGHT TO BE ADJUDICATED HAS BEEN MOOTED BY SUBSEQUENT DEVELOPMENTS,
/12/  AND WHEN THERE IS NO STANDING TO MAINTAIN THE ACTION.  /13/  YET
IT REMAINS TRUE THAT "(JUSTICIABILITY IS . . . NOT A LEGAL CONCEPT WITH
A FIXED CONTENT OR SUSCEPTIBLE OF SCIENTIFIC VERIFICATION.  ITS
UTILIZATION IS THE RESULTANT OF MANY SUBTLE PRESSURES.  . . . "  POE V.
ULLMAN, . 367 U.S. 497, 508 (1961). 

PART OF THE DIFFICULTY IN GIVING PRECISE MEANING AND FORM TO THE
CONCEPT OF JUSTICIABILITY STEMS FROM THE UNCERTAIN HISTORICAL
ANTECEDENTS OF THE CASE-AND-CONTROVERSY DOCTRINE.  FOR EXAMPLE, MR.
JUSTICE FRANKFURTER TWICE SUGGESTED THAT HISTORICAL MEANING COULD BE
IMPARTED TO THE CONCEPTS OF JUSTICIABILITY AND CASE AND CONTROVERSY BY
REFERENCE TO THE PRACTICES OF THE COURTS OF WESTMINISTER WHEN THE
CONSTITUTION WAS ADOPTED.  JOINT ANTI-FASCIST COMMITTEE V. MCGRATH, 341
U.S. 123, 150 (1951) (CONCURRING OPINION); COLEMAN V. MILLER, 307 U.S.
433, 460 (1939) (SEPARATE OPINION).  HOWEVER, THE POWER OF ENGLISH
JUDGES TO DELIVER ADVISORY OPINIONS WAS WELL ESTABLSIHED AT THE TIME
THE CONSTITUTION WAS DRAFTED.  3 K.DAVIS, ADMINISTRATIVE LAW TREATISE
127-128 (1958).  AND IT IS QUITE CLEAR THAT "THE OLDEST AND MOST
CONSISTENT THREAD IN THE FEDERAL LAW OF JUSTICIABILITY IS THAT THE
FEDERAL COURTS WILL NOT GIVE ADVISORY OPINIONS."  C. WRIGHT, FEDERAL
COURTS 34 (B1963).  /14/  THUS, THE IMPLICIT POLICIES EMBODIED IN
ARTICLE III, AND NOT HISTORY ALONE, IMPOSE THE RULE AGAINST ADVISORY
OPINIONS ON FEDERAL COURTS.  WHEN THE FEDERAL JUDICIAL POWER IS INVOKED
TO PASS UPON THE VALIDITY OF ACTIONS BY THE LEGISLATIVE AND EXECUTIVE
BRANCHES OF THE GOVERNMENT, THE RULE AGAINST ADVISORY OPINIONS
IMPLEMENTS THE SEPARATION OF POWERS PRESCRIBED BY THE CONSTITUTION AND
CONFINES FEDERAL COURTS TO THE ROLE ASSIGNED THEM BY ARTICLE III.  SEE
MUSKRAT V. UNITED STATES, 219 U.S. 346 (1911); 3 H.JOHNSTON,
CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 386-489 (1891)
(CORRESPONDENCE BETWEEN SECRETARY OF STATE JEFFERSON AND CHIEF JUSTICE
JAY).  HOWEVER, THE RULE AGAINST ADVISORY OPINIONS ALSO RECOGNIZES THAT
SUCH SUITS OFTEN "ARE NOT PRESSED BEFORE THE COURT WITH THAT CLEAR
CONCRETENESS PROVIDED WHEN A QUESTION EMERGES PRECISELY FRAMED AND
NECESSARY FOR DECISION FROM A CLASH OF ADVERSARY ARGUMENT EXPLORING
EVERY ASPECT OF A MULTIFACED SITUATION EMBRACING CONFLICTING AND
DEMANDING INTERESTS."  UNITED STATES V. FRUEHAUF, 365 U.S. 146, 157
(1961).  CONSEQUENTLY, THE ARTICLE III PROHIBITION AGAINST ADVISORY
OPINIONS RELFECTS THE COMPLEMENTARY CONSTITUTIONAL CONSIDERATIONS
EXPRESSED BY THE JUSTICIABILITY DOCTRINE:  FEDERAL JUDICIAL POWER IS
LIMITED TO THOSE DISPUTES WHICH CONFINE FEDERAL COURTS TO A ROLE
CONSISTENT WITH A SYSTEM OF SEPARATED POWERS AND WHICH ARE
TRADITIONALLY THOUGHT TO BE CAPABLE OF RESOLUTION THROUGH THE JUDICIAL
PROCESS. 

ADDITIONAL UNCERTAINTY EXISTS IN THE DOCTRINE OF JUSTICIABILITY
BECAUSE THAT DOCTRINE HAS BECOME A BLEND OF CONSTITUTIONAL REQUIREMENTS
AND POLICY CONSIDERATIONS.  AND A POLICY LIMITATION IS "NOT ALWAYS
CLEARLY DISTINGUISHED FROM THE CONSTITUTIONAL LIMITATION."  BARROWS V.
JACKSON, 346 U.S. 249, 255 (1953).  FOR EXAMPLE, IN HIS CONCURRING
OPINION IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 345
348 (1936), MR. JUSTICE BRANDEIS LISTED SEVEN RULES DEVELOPED BY THIS
COURT "FOR ITS OWN GOVERNANCE" TO AVOID PASSING PREMATURELY ON
CONSTITUTIONAL QUESTIONS.  BECAUSE THE RULES OPERATE IN "CASES
CONFESSEDLY WITHIN (THE COURT'S) JURISDICTION," ID., AT 346, THEY FIND
THEIR SOURCE IN POLICY, RATHER THAN PURELY CONSTITUTIONAL,
CONSIDERATIONS.  HOWEVER, SEVERAL OF THE CASES CITED BY MR. JUSTICE
BRANDEIS IN ILLUSTRATING THE RULES OF SELF-GOVERNANCE ARTICULATED
PURELY CONSTITUTIONAL GROUNDS FOR DECISION.  SEE, E.G., MASSACHUSETTS
V. MELLON, 262 U.S. 447 (1923); FAIRCHILD V. HUGHES, 258 U.S. 126
(1922); CHICAGO & GRAND TRUNK R. CO. V. WELLMAN, 143 U.S. 339 (1892). 
THE "MANY SUBTLE PRESSURES"  /15/  WHICH CAUSE POLICY CONSIDERATIONS TO
BLEND INTO THE CONSTITUTIONAL LIMITATIONS OF ARTICLE III MAKE THE
JUSTICIABILITY DOCTRINE ONE OF UNCERTAIN AND SHIFTING CONTOURS. 

IT IS IN THIS CONTEXT THAT THE STANDING QUESTION PRESENTED BY THIS
CASE MUST BE VIEWED AND THAT THE GOVERNMENT'S ARGUMENT ON THAT QUESTION
MUST BE EVALUATED.  AS WE UNDERSTAND IT, THE GOVERNMENT'S POSITION IS
THAT THE CONSTITUTIONAL SCHEME OF SEPARATION OF POWERS, AND THE
DEFERENCE OWED BY THE FEDERAL JUDICIARY TO THE OTHER TWO BRANCHES OF
GOVERNMENT WITHIN THAT SCHEME, PRESENT AN ABSOLUTE BAR TO TAXPAYER
SUITS CHALLENGING THE VALIDITY OF FEDERAL SPENDING PROGRAMS.  THE
GOVERNMENT VIEWS SUCH SUITS AS INVOLVING NO MORE THAN THE MERE
DISAGREEMENT BY THE TAXPAYER "WITH THE USES TO WHICH TAX MONEY IS
PUT."  /16/  ACCORDING TO THE GOVERNMENT, THE RESOLUTION OF SUCH
DISAGREEMENTS IS COMMITTED TO OTHER BRANCHES OF THE FEDERAL GOVERNMENT
AND NOT TO THE JUDICIARY.  CONSEQUENTLY, THE GOVERNMENT CONTENDS THAT,
UNDER NO CIRCUMSTNACES, SHOULD STANDING BE CONFERRED ON FEDERAL
TAXPAYERS TO CHALLENGE A FEDERAL TAXING OR SPENDING PROGRAM.  /17/  AN
ANALYSIS OF THE FUNCTION SERVED BY STANDING LIMITATIONS COMPELS A
REJECTION OF THE GOVERNMENT'S POSITION. 

STANDING IS AN ASPECT OF JUSTICIABILITY AND, AS SUCH, THE PROBLEM OF
STANDING IS SURROUNDED BY THE SAME COMPLEXITIES AND VAGARIES THAT
INHERE IN JUSTICIABILITY.  STANDING HAS BEEN CALLED ONE OF "THE MOST
AMORPHOUS (CONCEPTS) IN THE ENTIRE DOMAIN OF PUBLIC LAW."  /18/  SOME
OF THE COMPLEXITIES PECULIAR TO STANDING PROBLEMS RESULT BECAUSE
STANDING "SERVES, ON OCCASION, AS A SHORTHAND EXPRESSION FOR ALL THE
VARIOUS ELEMENTS OF JUSTICIABILITY."  /19/  IN ADDITION, THERE ARE AT
WORK IN THE STANDING DOCTRINE THE MANY SUBTLE PRESSURES WHICH TEND TO
CAUSE POLICY CONSIDERATIONS TO BLEND INTO CONSTITUTIONAL LIMITATIONS. 
/20/ 

DESPITE THE COMPLEXITIES AND UNCERTAINTIES, SOME MEANINGFUL FORM CAN
BE GIVEN TO THE JURISDICTIONAL LIMITATIONS PLACED ON FEDERAL COURT
POWER BY THE CONCEPT OF STANDING.  THE FUNDAMENTAL ASPECT OF STANDING
IS THAT IT FOCUSES ON THE PARTY SEEKING TO GET HIS COMPLAINT BEFORE A
FEDERAL COURT AND NOT ON THE ISSUES HE WISHES TO HAVE ADJUDICATED.  THE
"GIST OF THE QUESTION OF STANDING" IS WHETHER THE PARTY SEEKING RELIEF
HAS "ALLEGED SUCH A PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY AS
TO ASSURE THAT CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF
ISSUES UPON WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF
DIFFICULT CONSTITUTIONAL QUESTIONS."  BAKER V. CARR, 369 U.S. 186, 204
(1962).  IN OTHER 4ORDS, WHEN STANDING IS PLACED IN ISSUE IN A CASE,
THE QUESTION IS WHETHER THE PERSON WHOSE STANDING IS CHALLENGED IS A
PROPER PARTY TO REQUEST AN ADJUDICATION OF A PARTICULAR ISSUE AND NOT
WHETHER THE ISSUE ITSELF IS JUSTICIABLE.  /21/  THUS, A PARTY MAY HAVE
STANDING IN A PARTICULAR CASE, BUT THE FEDERAL COURT MAY NEVERTHELESS
DECLINE TO PASS ON THE MERITS OF THE CASE BECAUSE, FOR EXAMPLE, IT
PRESENTS A POLITICAL QUESTION.  /22/  A PROPER PARTY IS DEMANDED SO
THAT FEDERAL COURTS WILL NOT BE ASKED TO DECIDE "ILL-DEFINED
CONTROVERSIES OVER CONSTITUTIONAL ISSUES,"  UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75, 90 (1947), OR A CASE WHICH IS OF "A HYPOTHETICAL
OR ABSTRACT CHARACTER," AETNA LIFE INSURANCE CO. V. HAWORTH, 300 U.S.
227, 240 (1937).  SO STATED, THE STANDING REQUIREMENT IS CLOSELY
RELTATD TO, ALTHOUGH MORE GENERAL THAN, THE RULE THAT FEDERAL COURTS
WILL NOT ENTERTAIN FRIENDLY SUITS, CHICAGO & GRAND TRUNK R. CO. V.
WELLMAN, SUPRA, OR THOSE WHICH ARE FEIGNED OR COLLUSIVE IN NATURE,
UNITED STATES V. JOHNSON, 319 U.S. 302 (1943); LORD V. VEAZIE, 8 HOW. 
251 (1850). 

WHEN THE EMPHASIS IN THE STANDING PROBLEM IS PLACED ON WHETHER THE
PERSON INVOKING A FEDERAL COURT'S JURISDICTION IS A PROPER PARTY TO
MAINTAIN THE ACTION, THE WEAKNESS OF THE GOVERNMENT'S ARGUMENT IN THIS
CASE BECOMES APPARENT.  THE QUESTION WHETHER A PARTICULAR PERSON IS A
PROPER PARTY TO MAINTAIN THE ACTION DOES NOT, BY ITS OWN FORCE, RASIE
SEPARATION OF POWERS PROBLEMS RELATED TO IMPROPER JUDICIAL INTERFERENCE
IN AREAS COMMITTED TO OTHER BRANCHES OF THE FEDERAL GOVERNMENT.  SUCH
PROBLEMS ARISE, IF AT ALL, ONLY FROM THE SUBSTANTIVE ISSUES THE
INDIVIDUAL SEEKS TO HAVE ADJUDICATED.  THUS, IN TERMS OF ARTICLE III
LIMITATIONS ON FEDERAL COURT JURISDICTION, THE QUESTION OF STANDING IS
RELATED ONLY TO WHETHER THE DISPUTE SOUGHT TO BE ADJUDICATED WILL BE
PRESENTED IN AN ADVERSARY CONTEXT AND IN A FORM HISTORICALLY VIEWED AS
CAPABLE OF JUDICIAL RESOLUTION.  IT IS FOR THAT REASON THAT THE
EMPHASIS IN STANDING PROBLEMS IS ON WHETHER THE PARTY INVOKING FEDERAL
COURT JURISDICTION HAS "A PERSONAL STAKE IN THE OUTCOME OF THE
CONTROVERSY," BAKER V. CARR, SUPRA, AT 204, AND WHETHER THE DISPUTE
TOUCHES UPON "THE LEGAL RELATIONS OF PARTIES HAVING ADVERSE LEGAL
INTERESTS."  AETNA LIFE INSURANCE CO. V. HAWORTH, SUPRA, AT 240-241.  A
TAXPAYER MAY OR MAY NOT HAVE THE REQUISITE PERSONAL STAKE IN THE
OUTCOME, DEPENDING UPON THE CIRCUMSTANCES OF THE PARTICULAR CASE. 
THEREFORE, WE FIND NO ABSOLUTE BAR IN ARTICLE III TO SUITS BY FEDERAL
TAXPAYERS CHALLENGING ALLEGEDLY UNCONSTITUTIONAL FEDERAL TAXING AND
SPENDING PROGRAMS.  THERE REMAINS, HOWEVER, THE PROBLEM OF DETERMINING
THE CIRCUMSTANCES UNDER WHICH A FEDERAL TAXPAYER WILL BE DEEMED TO HAVE
THE PERSONAL STAKE AND INTEREST THAT IMPART THE NECESSARY CONCRETE
ADVERSENESS TO SUCH LITIGATION SO THAT STANDING CAN BE CONFERRED ON THE
TAXPAYER QUA TAXPAYER CONSISTENT WITH THE CONSTITUTIONAL LIMITATIONS OF
ARTICLE III. 

        IV. 

THE VARIOUS RULES OF STANDING APPLIED BY FEDERAL COURTS HAVE NOT
BEEN DEVELOPED IN THE ABSTRACT.  RATHER, THEY HAVE BEEN FASHIONED WITH
SPECIFIC REFERENCE TO THE STATUS ASSERTED BY THE PARTY WHOSE STANDING
IS CHALLENGED AND TO THE TYPE OF QUESTION HE WISHES TO HAVE
ADJUDICATED.  WE HAVE NOTED THAT, IN DECIDING THE QUESTION OF STANDING,
IT IS NOT RELEVANT THAT THE SUBSTANTIVE ISSUES IN THE LITIGATION MIGHT
BE NONJUSTICIABLE.  HOWEVER, OUR DECISIONS ESTABLISH THAT, IN RULING ON
STANDING, IT IS BOTH APPROPRIATE AND NECESSARY TO LOOK TO THE
SUBSTANTIVE ISSUES FOR ANOTHER PURPOSE, NAMELY, TO DETERMINE WHETHER
THERE IS A LOGICAL NEXUS BETWEEN THE STATUS ASSERTED AND THE CLAIM
SOUGHT TO BE ADJUDICATED.  FOR EXAMPLE, STANDING REQUIREMENTS WILL VARY
IN FIRST AMENDMENT RELIGION CASES DEPENDING UPON WHETHER THE PARTY
RAISES AN ESTABLISHMENT CLAUSE CLAIM OR A CLAIM UNDER THE FREE EXERCISE
CLAUSE.  SEE MCGOWAN V. MARYLAND, 366 U.S. 420, 429-430 (1961).  SUCH
INQUIRIES INTO THE NEXUS BETWEEN THE STATUS ASSERTED BY THE LITIGANT
AND THE CLAIM HE PRESENTS ARE ESSENTIAL TO ASSURE THAT HE IS A PROPER
AND APPROPRIATE PARTY TO INVOKE FEDERAL JUDICIAL POWER.  THUS, OUR
POINT OF REFERENCE IN THIS CASE IS THE STANDING OF INDIVIDUALS WHO
ASSERT ONLY THE STATUS OF FEDERAL TAXPAYERS AND WHO CHALLENGE THE
CONSTITUTIONALITY OF A FEDERAL SPENDING PROGRAM.  WHETHER SUCH
INDIVIDUALS HAVE STANDING TO MAINTAIN THAT FORM OF ACTION TURNS ON
WHETHER THEY CAN DEMONSTRATE THE NECESSARY STAKE AS TAXPAYERS IN THE
OUTCOME OF THE LITIGATION TO SATISFY ARTICLE III REQUIREMENTS. 

THE NEXUS DEMANDED OF FEDERAL TAXPAYERS HAS TWO ASPECTS TO IT.
FIRST, THE TAXPAYER MUST ESTABLISH A LOGICAL LINK BETWEEN THAT STATUS
AND THE TYPE OF LEGISLATIVE ENACTMENT ATTACKED.  THUS, A TAXPAYER WILL
BE A PROPER PARTY TO ALLEGE THE UNCONSTITUTIONALITY ONLY OF EXERCISES
OF CONGRESSIONAL POWER UNDER THE TAXING AND SPENDING CLAUSE OF ART. I,
SEC. 8, OF THE CONSTITUTION.  IT WILL NOT BE SUFFICIENT TO ALLEGE AN
INCIDENTAL EXPENDITURE OF TAX FUNDS IN THE ADMINISTRATION OF AN
ESSENTIALLY REGULATORY STATUTE.  THIS REQUIREMENT IS CONSISTENT WITH
THE LIMITATION IMPOSED UPON STATE-TAXPAYER STANDING IN FEDERAL COURTS
IN DOREMUS V. BOARD OF EDUCATION, 342 U.S. 429 (1952).  SECONDLY, THE
TAXPAYER MUST ESTABLISH A NEXUS BETWEEN THAT STATUS AND THE PRECISE
NATURE OF THE CONSTITUTIONAL INFRINGEMENT ALLEGED.  UNDER THIS
REQUIREMENT, THE TAXPAYER MUST SHOW THAT THE CHALLENGED ENACTMENT
EXCEEDS SPECIFIC CONSTITUTIONAL LIMITATIONS IMPOSED UPON THE EXERCISE
OF THE CONGRESSIONAL TAXING AND SPENDING POWER AND NOT SIMPLY THAT THE
ENACTMENT IS GENERALLY BEYOND THE POWERS DELEGATED TO CONGRESS BY ART.
I, SEC. 8.  WHEN BOTH NEXUSES ARE ESTABLISHED, THE LITIGANT WILL HAVE
SHOWN A TAXPAYER'S STAKE IN THE OUTCOME OF THE CONTROVERSY AND WILL BE
A PROPER AND APPROPRIATE PARTY TO INVOKE A FEDERAL COURT'S
JURISDICTION. 

THE TAXPAYER-APPELLANTS IN THIS CASE HAVE SATISFIED BOTH NEXUSES TO
SUPPORT THEIR CLAIM OF STANDING UNDER THE TEST WE ANNOUNCE TODAY. 
THEIR CONSTITUTIONAL CHALLENGE IS MADE TO AN EXERCISE BY CONGRESS OF
ITS POWER UNDER ART. I, SEC. 8, TO SPEND FOR THE GENERAL WELFARE, AND
THE CHALLENGED PROGRAM INVOLVES A SUBSTANTIAL EXPENDITURE OF FEDERAL
TAX FUNDS.  /23/  IN ADDITION, APPELLANTS HAVE ALLEGED THAT THE
CHALLENGED EXPENDITURES VIOLATE THE ESTABLISHMENT AND FREE EXERCISE
CLAUSES OF THE FIRST AMENDMENT.  OUR HISTORY VIVIDLY ILLUSTRATES THAT
ONE OF THE SPECIFIC EVILS FEARED BY THOSE WHO DRAFTED THE ESTABLISHMENT
CLAUSE AND FOUGHT FOR ITS ADOPTION WAS THAT THE TAXING AND SPENDING
POWER WOULD BE USED TO FAVOR ONE RELIGION OVER ANOTHER OR TO SUPPORT
RELIGION IN GENERAL.  JAMES MADISON, WHO IS GENERALLY RECOGNIZED AS THE
LEADING ARCHITECT OF THE RELIGION CLAUSES OF THE FIRST AMENDMENT,
OBSERVED IN HIS FAMOUS MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS
ASSESSMENTS THAT "THE SAME AUTHORITY WHICH CAN FORCE A CITIZEN TO
CONTRIBUTE THREE PENCE ONLY OF HIS PROPERTY FOR THE SUPPORT OF ANY ONE
ESTABLISHMENT, MAY FORCE HIM TO CONFORM TO ANY OTHER ESTABLISHMENT IN
ALL CASES WHATSOEVER."  2 WRITINGS OF JAMES MADISON 183, 186 (HUNT ED.
1901).  THE CONCERN OF MADISON AND HIS SUPPORTERS WAS QUITE CLEARLY
THAT RELIGIOUS LIBERTY ULTIMATELY WOULD BE THE VICTIM IF GOVERNMENT
COULD EMPLOY ITS TAXING AND SPENDING POWERS TO AID ONE RELIGION OVER
ANOTHER OR TO AID RELIGION IN GENERAL.  /24/  THE ESTABLISHMENT CLAUSE
WAS DESIGNED AS A SPECIFIC BULWARK AGAINST SUCH POTENTIAL ABUSES OF
GOVERNMENTAL POWER, AND THAT CLAUSE OF THE FIRST AMENDMENT /25/
OPERATES AS A SPECIFIC CONSTITUTIONAL LIMITATION UPON THE EXERCISE BY
CONGRESS OF THE TAXING AND SPENDING POWER CONFERRED BY ART. I, SEC. 8. 

THE ALLEGATIONS OF THE TAXPAYER IN FROTHINGHAM V. MELLON, SUPRA,
WERE QUITE DIFFERENT FROM THOSE MADE IN THIS CASE, AND THE RESULT IN
FROTHINGHAM IS CONSISTENT WITH THE TEST OF TAXPAYER STANDING ANNOUNCED
TODAY.  THE TAXPAYER IN FROTHINGHAM ATTACKED A FEDERAL SPENDING PROGRAM
AND SHE, THEREFORE, ESTABLISHED THE FIRST NEXUS REQUIRED.  HOWEVER, SHE
LACKED STANDING BECAUSE HER CONSTITUTIONAL ATTACK WAS NOT BASED ON AN
ALLEGATION THAT CONGRESS, IN ENACTING THE MATERNITY ACT OF 1921, HAD
BREACHED A SPECIFIC LIMITATION UPON ITS TAXING AND SPENDING POWER.  THE
TAXPAYER IN FROTHINGHAM ALLEGED ESSENTIALLY THAT CONGRESS, BY ENACTING
THE CHALLENGED STATUTE, HAD EXCEEDED THE GENERAL POWERS DELEGATED TO IT
BY ART. I, SEC. 8, AND THAT CONGRESS HAD THEREBY INVADED THE
LEGISLATIVE PROVINCE RESERVED TO THE STATES BY THE TENTH AMENDMENT.  TO
BE SURE, MRS. FROTHINGHAM MADE THE ADDITIONAL ALLEGATION THAT HER TAX
LIABILITY WOULD BE INCREASED AS A RESULT OF THE ALLEGEDLY
UNCONSTITUTIONAL ENACTMENT, AND SHE FRAMED TAHT ALLEGATION IN TERMS OF
A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW.  HOWEVER, THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT DOES NOT PROTECT TAXPAYERS
AGAINST INCREASES IN TAX LIABILITY, AND THE TAXPAYER IN FROTHINGHAM
FAILED TO MAKE ANY ADDITIONAL CLAIM THAT THE HARM SHE ALLEGED RESULTED
FROM A BREACH BY CONGRESS OF THE SPECIFIC CONSTITUTIONAL LIMITATIONS
IMPOSED UPON AN EXERCISE OF THE TAXING AND SPENDING POWER.  IN ESSENCE,
MRS. FROTHINGHAM WAS ATTEMPTING TO ASSERT THE STATES' INTEREST IN THEIR
LEGISLATIVE PREROGATIVES AND NOT A FEDERAL TAXPAYER'S INTEREST IN BEING
FREE OF TAXING AND SPENDING IN CONTRAVENTION OF SPECIFIC CONSTITUTIONAL
LIMITATIONS IMPOSED UPON CONGRESS' TAXING AND SPENDING POWER. 

WE HAVE NOTED THAT THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT
DOES SPECIFICALLY LIMIT THE TAXING AND SPENDING POWER CONFERRED BY ART.
I, SEC. 8.  WHETHER THE CONSTITUTION CONTAINS OTHER SPECIFIC
LIMITATIONS CAN BE DETERMINED ONLY IN THE CONTEXT OF FUTURE CASES. 
HOWEVER, WHENEVER SUCH SPECIFIC LIMITATIONS ARE FOUND, WE BELIEVE A
TAXPAYER WILL HAVE A CLEAR STAKE AS A TAXPAYER IN ASSURING THAT THEY
ARE NOT BREACHED BY CONGRESS.  CONSEQUENTLY, WE HOLD THAT A TAXPAYER
WILL HAVE STANDING CONSISTENT WITH ARTICLE III TO INVOKE FEDERAL
JUDICIAL POWER WHEN HE ALLEGES THAT CONGRESSIONAL ACTION UNDER THE
TAXING AND SPENDING CLAUSE IS IN DEROGATION OF THOSE CONSTITUTIONAL
PROVISIONS WHICH OPERATE TO RESTRICT THE EXERCISE OF THE TAXING AND
SPENDING POWER.  THE TAXPAYER'S ALLEGATION IN SUCH CASES WOULD BE THAT
HIS TAX MONEY IS BEING EXTRACTED AND SPENT IN VIOLATION OF SPECIFIC
CONSTITUTIONAL PROTECTIONS AGAINST SUCH ABUSES OF LEGISLATIVE POWER. 
SUCH AN INJURY IS APPROPRIATE FOR JUDICIAL REDRESS, AND THE TAXPAYER
HAS ESTABLISHED THE NECESSARY NEXUS BETWEEN HIS STATUS AND THE NATURE
OF THE ALLEGEDLY UNCONSTITUTIONAL ACTION TO SUPPORT HIS CLAIM OF
STANDING TO SECURE JUDICIAL REVIEW.  UNDER SUCH CIRCUMSTANCES, WE FEEL
CONFIDENT THAT THE QUESTIONS WILL BE FRAMED WITH THE NECESSARY
SPECIFICITY, THAT THE ISSUES WILL BE CONTESTED WITH THE NECESSARY
ADVERSENESS AND THAT THE LITIGATION WILL BE PURSUED WITH THE NECESSARY
VIGOR TO ASSURE THAT THE CONSTITUTIONAL CHALLENGE WILL BE MADE IN A
FORM TRADITIONALLY THOUGHT TO BE CAPABLE OF JUDICIAL RESOLUTION.  WE
LACK THAT CONFIDENCE IN CASES SUCH AS FROTHINGHAM WHERE A TAXPAYER
SEEKS TO EMPLOY A FEDERAL COURT AS A FORUM IN WHICH TO AIR HIS
GENERALIZED GRIEVANCES ABOUT THE CONDUCT OF GOVERNMENT OR THE
ALLOCATION OF POWER IN THE FEDERAL SYSTEM. 

WHILE WE EXPRESS NO VIEW AT ALL ON THE MERITS OF APPELLANTS' CLAIMS
IN THIS CASE, /26/  THEIR COMPLAINT CONTAINS SUFFICIENT ALLEGATIONS
UNDER THE CRITERIA WE HAVE OUTLINED TO GIVE THEM STANDING TO INVOKE A
FEDERAL COURT'S JURISDICTION FOR AN ADJUDICATION ON THE MERITS. 

      REVERSED. 

/1/  THE COMPLAINT ALLEGED THAT ONE OF THE APPELLANTS "HAS CHILDREN
REGULARLY REGISTERED IN AND ATTENDING THE ELEMENTARY OR SECONDARY
GRADES IN THE PUBLIC SCHOOLS OF NEW YORK."  HOWEVER, THE DISTRICT COURT
DID NOT VIEW THAT ADDITIONAL ALLEGATION AS BEING RELEVANT TO THE
QUESTION OF STANDING, AND APPELLANTS HAVE MADE NO EFFORT TO JUSTIFY
THEIR STANDING ON THAT ADDITIONAL GROUND. 

/2/  THIS ISSUE WAS NOT RAISED IN THE COURT BELOW, AND THE
GOVERNMENT ARGUED IT FOR THE FIRST TIME IN ITS BRIEF IN THIS COURT. 
THE GOVERNMENT CLAIMS THE INAPPROPRIATENESS OF CONVENING A THREE-JUDGE
COURT BECAME APPARENT ONLY AS THE ISSUES IN THE CASE HAVE BEEN
CLARIFIED BY APPELLATNS.  BECAUSE THE QUESTION NOW PRESENTED GOES TO
OUR JURISDICTION ON DIRECT APPEAL, THE LATENESS OF THE CLAIM IS
IRRELEVANT TO OUR CONSDIERATION OF IT.  UNITED STATES V. GRIFFIN, 303
U.S. 226, 229 (1938). 

/3/  THE GOVERNMENT ALSO SEEMS TO ARGUE THAT, IF ANY ADMINISTRATIVE
ACTION IS SUSPECT, IT IS THE ACTION OF STATE OFFICIALS AND NOT OF
APPELLEES.  FOR EXAMPLE, THE GOVERNMENT DESCRIBES FEDERAL PARTICIPATION
IN THE CHALLENGED PROGRAMS AS "REMOTE."  BRIEF FOR APPELLEES 17.  THE
PREMISE FOR THIS ARGUMENT IS APPARENTLY THAT, UNDER 20 U.S.C. 241E,
PROGRAMS OF LOCAL EDUCATIONAL AGENCIES REQUIRE ONLY THE DIRECT APPROVAL
OF STATE OFFICIALS TO BE ELIGIBLE FOR GRANTS.  HOWEVER, APPELLEES ARE
GIVEN BROAD POWERS OF SUPERVISION OVER STATE PARTICIPATION BY 20 U.S.C.
241F, AND IT IS FEDERAL FUNDS ADMINISTERED BY APPELLEES THAT FINANCE
THE LOCAL PROGRAMS.  WE CANNOT CHARACTERIZE SUCH FEDERAL PARTICIPATION
AS "REMOTE." 

/4/  AN ADDITIONAL REQUIREMENT FOR THE CONVENING OF A THREE-JUDGE
COURT IS THAT THE CONSTITUTIONAL QUESTION PRESENTED BY SUBSTANTIAL. 
SEE IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN, 370 U.S. 713 (1962);
EX PARTE PORESKY, 290 U.S. 30 (1933).  THE GOVERNMENT DOES NOT DISPUTE
THE SUBSTANTIALITY OF THE CONSTITUTIONAL ATTACK MADE BY APPELLANTS ON
THE ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965.  SEE FLAST V.
GARDNER, 267 F.SUPP.  351, 352 (1967). 

/5/ IN AT LEAST THREE CASES PRIOR TO FROTHINGHAM, THE COURT ACCEPTED
JURISDICTION IN TAXPAYER SUITS WITHOUT PASSING DIRECTLY ON THE STANDING
QUESTION.  WILSON V. SHAW, 204 U.S. 24, 31 (1907); MILLARD V. ROBERTS,
202 U.S. 429, 438 (1906); BRADFIELD V. ROBERTS, 175 U.S. 291, 295
(1899). 

/6/  THE PREVAILING VIEW OF THE COMMENTATORS IS THAT FROTHINGHAM
ANNOUNCED ONLY A NONCONSTITUTIONAL RULE OF SELF-RESTRAINT.  SEE, E.G.,
JAFFE, STANDING TO SECURE JUDICIAL REVIEW:  PRIVATE ACTIONS, 75
HARV.L.REV.  255, 302-303 (1961); ARTHUR GARFIELD HAYS CIVIL LIBERTIES
CONFERENCE:  PUBLIC AID TO PAROCHIAL SCHOOLS AND STANDING TO BRING
SUIT, 12 BUFFALO L.REV.  35, 48-65 (1962); DAVIS, STANDING TO CHALLENGE
GOVERNMENTAL ACTION, 39 MINN.L.REV.  353, 386-391 (1955).  BUT SEE
HEARINGS ON S. 1097 BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF
THE SENATE JUDICIARY COMMITTEE, 89TH CONG., 2D SESS., 465, 467-468
(1966) (STATEMENT OF PROF. WILLIAM D. VALENTE).  THE LAST-CITED
HEARINGS CONTAIN THE BEST COLLECTION OF RECENT EXPRESSION OF VIEWS ON
THIS QUESTION. 

/7/  "ALTHOUGH THE COURT IN THE LATTER PART OF THE OPINION USED
LANGUAGE SUGGESTING THAT IT DID NOT FIND THE ELEMENTS OF A JUSTICIABLE
CONTROVERSY PRESENT IN THE CASE, THE CASE IN ITS CENTRAL ASPECT TURNS
ON APPLICATION OF THE JUDICIALLY FORMULATED (I.E., NONCONSTITUTIONAL)
RULES RESPECTING STANDING."  HEARINGS ON S. 2097, SUPRA, N. 6, AT 503
(STATEMENT OF PROF. PAUL G. KAUPER). 

/8/ SEE, E.G., HEARINGS ON S. 2097, SUPRA, N. 6, AT 493 (STATEMENT
OF PROF. KENNETH C. DAVIS); NOTE, 69 YALE L.J. 895, 917, AND N. 127
(1960). 

/9/  JUDGE FRANKEL'S DISSENT BELOW ALSO NOTED THAT FEDERAL COURTS
HAVE LEARNED IN RECENT YEARS TO COPE EFFECTIVELY WITH "HUGE
LITIGATIONS" AND "REDUNDANT ACTIONS."  271 F.SUPP.,AT 17. 

/10/  SEE, E.G., COMMERCIAL TRUST CO. V. MILLER, 262 U.S. 51 (1923);
LUTHER V. BORDEN, 7 HOW.  1 (1849). 

/11/  SEE, E.G., UNITED STATES V. FRUEHAUF, 365 U.S. 146 (1961);
MUSKRAT V. UNITED STATES, 219 U.S. 346 (1911). 

/12/  SEE, E.G., CALIFORNIA V. SAN PABLO & T.R. CO., 149 U.S. 308
(1893). 

/13/  SEE, E.G., TILESTON V. ULLMAN, 318 U.S. 44 (1943); FROTHINGHAM
V. MELLON, 262 U.S. 447 (1923). 

/14/  THE RULE AGAINST ADVISORY OPINIONS WAS ESTABLISHED AS EARLY AS
1793, SEE 3 H.JOHNSTON,CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 486
489 (1891), AND THE RULE HAS BEEN ADHERED TO WITHOUT DEVIATION.  SEE
UNITED STATES V. FRUEHAUF, 365 U.S. 146, 157 (1961), AND CASES CITED
THEREIN. 

/15/  POE V. ULLMAN, 367 U.S. 497, 508 (1961). 

/16/  BRIEF FOR APPELLEES 7. 

/17/  THE LOGIC OF THE GOVERNMENT'S ARGUMENT WOULD COMPEL IT TO
CONCEDE THAT A TAXPAYER WOULD LACK STANDING EVEN IF CONGRESS ENGAGED IN
SUCH PALPABLY UNCONSTITUTIONAL CONDUCT AS PROVIDING FUNDS FOR THE
CONSTRUCTION OF CHURCHES FOR PARTICULAR SECTS.  SEE FLAST V. GARDNER,
271 F.SUPP.  1, 5 (19671 (DISSENTING OPINION OF FRANKEL, J.).  THE
GOVERNMENT PROFESSES NOT TO BE BOTHERED BY SUCH A RESULT BECAUSE IT
CONTENDS THERE MIGHT BE INDIVIDUALS IN SOCIETY OTHER THAN TAXPAYERS WHO
COULD INVOKE FEDERAL JUDICIAL POWER TO CHALLENGE SUCH UNCONSTITUTIONAL
APPROPRIATIONS.  HOWEVER, IF AS WE CONCLUDE THERE ARE CIRCUMSTANCES
UNDER WHICH A TAXPAYER WILL BE A PROPER AND APPROPRIATE PARTY TO SEEK
JUDICIAL REVIEW OF FEDERAL STATUTES, THE TAXPAYER'S ACCESS TO FEDERAL
COURTS SHOULD NOT BE BARRED BECAUSE THERE MIGHT BE AT LARGE IN SOCIETY
A HYPOTHETICAL PLAINTIFF WHO MIGHT POSSIBLY BRING SUCH A SUIT. 

/18/  HEARINGS ON S. 1097, SUPRA, N. 6, AT 498 (STATEMENT OF PROF.
PAUL A. FREUND). 

/19/  LEWIS, CONSTITUTIONAL RIGHTS AND THE MISUSE OF "STANDING," 14
STAN.L.REV.  433, 453 (1962). 

/20/  THUS, A GENERAL STANDING LIMITATION IMPOSED BY FEDERAL COURTS
IS THAT A LITIGANT WILL ORDINARILY NOT BE PERMITTED TO ASSERT THE
RIGHTS OF ABSENT THIRD PARTIES.  SEE, E.G., HEALD V. DISTRICT OF
COLUMBIA, 259 U.S. 114, 123 (1922); YAZOO & MISS.  VALLEY R. CO. V.
JACKSON VINEGAR CO., 226 U.S. 217 (1912).  HOWEVER, THIS RULE HAS NOT
BEEN IMPOSED UNIFORMLY AS A FIRM CONSTITUTIONAL RESTRICTION ON FEDERAL
COURT JURISDICTION.  SEE, E.G., DOMBROWSKI V. PFISTER, 380 U.S. 479,
486-487 (1965); BARROWS V. JACKSON, 346 U.S. 249 (1953).     /21/  THIS
DISTINCTION HAS NOT ALWAYS APPEARED WITH CLARITY IN PRIOR CASES.  SEE
BICKEL, FOREWORD:  THE PASSIVE VIRTUES, THE SUPREME COURT, 1960 TERM,
75 HARV.L.REV.  40, 75-76 (1961). 

/22/  ONE CONTEMPORARY COMMENTATOR ADVANCED SUCH AN EXPLANATION FOR
THE HOLDING IN FROTHINGHAM, SUGGESTING THAT THE STANDING RATIONALE WAS
SIMPLY A DEVICE USED BY THE COURT TO AVOID JUDICIAL INQUIRY INTO
QUESTIONS OF SOCIAL POLICY AND THE POLITICAL WISDOM OF CONGRESS.  SEE
FINKELSTEIN, JUDICIAL SELF-LIMITATION, 37 HARV.L.REV.  338, 359-364
(1924). 

/23/  ALMOST $1,000,000,000 WAS APPROPRIATED TO IMPLEMENT THE
ELEMENTARY AND SECONDARY EDUCATION ACT IN 1965.  79 STAT. 832. 

/24/  THE MEMORIAL AND REMONSTRANCE WAS MADISON'S IMPASSIONED
REACTION TO A BILL INTRODUCED IN THE VIRGINIA GENERAL ASSEMBLY IN 1785
TO PROVIDE A TAX LEVY TO SUPPORT TEACHERS OF THE CHRISTIAN RELIGION. 
MADISON'S ELOQUENT OPPOSITION TO THE LEVY GENERATED STRONG SUPPORT IN
VIRGINIA, AND THE ASSEMBLY POSTPONED CONSIDERATION OF THE PROPOSAL
UNTIL ITS NEXT SESSION.  WHEN THE BILL WAS REVIVED, IT DIED IN
COMMITTEE AND THE ASSEMBLY INSTEAD ENACTED THE FAMOUS VIRGINIA BILL FOR
RELIGIOUS LIBERTY AUTHORED BY THOMAS JEFFERSON.  THE VIRGINIA
EXPERIENCE IS RECOUNTED IN S. COBB, RISE OF RILIGIOUS LIBERTY IN
AMERICA 490-499 (1902). 

/25/  APPELLANTS HAVE ALSO ALLEGED THAT THE ELEMENTARY AND SECONDARY
EDUCATION ACT OF 1965 VIOLATES THE FREE EXERCISE CLAUSE OF THE FIRST. 
THIS COURT HAS RECOGNIZED THAT THE TAXING POWER CAN BE USED TO INFRINGE
THE FREE EXERCISE OF RELIGION.  MURDOCK V. PENNSYLVANIA, 319 U.S. 105
(1943).  SINCE WE HOLD THAT APPELLANTS' ESTABLISHMENT CLAUSE CLAIM IS
SUFFICIENT TO ESTABLISH THE NEXUS BETWEEN THEIR STATUS AND THE PRECISE
NATURE OF THE CONSTITUTIONAL INFRINGEMENT ALLEGED, WE NEED NOT DECIDE
WHETHER THE FREE EXERCISE CLAIM, STANDING ALONE, WOULD BE ADEQUATE TO
CONFER STANDING IN THIS CASE.  WE DO NOTE, HOWEVER, THAT THE CHALLENGED
TAX IN MURDOCK OPERATED UPON A PARTICULAR CLASS OF TAXPAYERS.  WHEN
SUCH EXERCISES OF THE TAXING POWER ARE CHALLENGED, THE PROPER PARTY
EMPHASIS IN THE FEDERAL STANDING DOCTRINE WOULD REQUIRE THAT STANDING
BE LIMITED TO THE TAXPAYERS WITHIN THE AFFECTED CLASS. 

/26/  IN FACT, IT IS IMPOSSIBLE TO MAKE ANY SUCH JUDGMENT IN THE
PRESENT POSTURE OF THIS CASE.  THE PROCEEDINGS IN THE COURT BELOW THUS
FAR HAVE BEEN DEVOTED SOLELY TO THE THRESHOLD QUESTION OF STANDING, AND
NOTHING IN THE RECORD BEARS UPON THE MERITS OF THE SUBSTANTIVE
QUESTIONS PRESENTED IN THE COMPLAINT. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I HAVE JOINED THE OPINION OF THE COURT, I DO NOT THINK THAT
THE TEST IT LAYS DOWN IS A DURABLE ONE FOR THE REASONS STATED BY MY
BROTHER HARLAN.  I THINK, THEREFORE, THAT IT WILL SUFFER EROSION AND IN
TIME RESULT IN THE DEMISE OF FROTHINGHAM V. MELLON, 262 U.S. 447.  IT
WOULD THEREFORE BE THE PART OF WISDOM, AS I SEE THE PROBLEM, TO BE RID
OF FROTHINGHAM HERE AND NOW. 

I DO NOT VIEW WITH ALARM, AS DOES MY BROTHER HARLAN, THE
CONSEQUENCES OF THAT COURSE.  FROTHINGHAM, DECIDED IN 1923, WAS IN THE
HEYDAY OF SUBSTANTIVE DUE PROCESS, WHEN COURTS WERE SITTING IN JUDGMENT
ON THE WISDOM OR REASONABLENESS OF LEGISLATION.  THE CLAIM IN
FROTHINGHAM WAS THAT A FEDERAL REGULATORY ACT DEALING WITH MATERNITY
DEPRIVED THE PLAINTIFF OF PROPERTY WITHOUT DUE PROCESS OF LAW.  WHEN
THE COURT USED SUBSTANTIVE DUE PROCESS TO DETERMINE THE WISDOM OR
REASONABLENESS OF LEGISLATION, IT WAS INDEED TRANSFORMING ITSELF INTO
THE COUNCIL OF REVISION WHICH WAS REJECTED BY THE CONSTITUTIONAL
CONVENTION.  IT WAS THAT JUDICIAL ATTITUDE, NOT THE THEORY OF STANDING
TO SUE REJECTED IN FROTHINGHAM, THAT INVOLVED "IMPORTANT HAZARDS FOR
THE CONTINUED EFFECTIVENESS OF THE FEDERAL JUDICIARY," TO BORROW A
PHRASE FROM MY BROTHER HARLAN.  A CONTRARY RESULT IN FRONTHINGHAM IN
THAT SETTING MIGHT WELL HAVE ACCENTUATED AN OMINOUS TREND TO JUDICIAL
SUPREMACY. 

BUT WE NO LONGER UNDERTAKE TO EXERCISE THAT KIND OF POWER.  TODAY'S
PROBLEM IS IN A DIFFERENT SETTING. 

MOST LAWS PASSED BY CONGRESS DO NOT CONTAIN EVEN A GHOST OF A
CONSTITUTIONAL QUESTION.  THE "POLITICAL" DECISIONS, AS DISTINGUISHED
FROM THE "JUSTICIABLE" ONES, OCCUPY MOST OF THE SPECTRUM OF
CONGRESSIONAL ACTION.  THE CASE OR CONTROVERSY REQUIREMENT COMES INTO
PLAY ONLY WHEN THE FEDERAL GOVERNMENT DOES SOMETHING THAT AFFECTS A
PERSON'S LIFE, HIS LIBERTY, OR HIS PROPERTY.  THE WRONG MAY BE SLIGHT
OR IT MAY GE GRIEVOUS.  MADISON IN DENOUNCING STATE SUPPORT OF CHURCHES
SAID THE PRINCIPLE WAS VIOLATED WHEN EVEN "THREE PENCE" WAS
APPROPRIATED TO THAT CAUSE BY THE GOVERNMENT.  /1/  IT THEREFORE DOES
NOT DO TO TALK ABOUT TAXPAYERS' INTEREST AS "INFINITESIMAL."  THE
RESTRAINT ON "LIBERTY" MAY BE FLEETING AND PASSING AND STILL VIOLATE A
FUNDAMENTAL CONSTITUTIONAL GUARANTEE.  THE "THREE PENCE" MENTIONED BY
MADISON MAY SIGNAL A MONSTROUS INVASION BY THE GOVERNMENT INTO CHURCH
AFFAIRS, AND SO ON. 

THE STATES HAVE EXPERIMENTED WITH TAXPAYERS' SUITS AND WITH ONLY TWO
EXCEPTIONS /2/  NOW ALLOW THEM.  A FEW STATE DECISIONS ARE FRANKLY
BASED ON THE THEORY THAT A TAXPAYER IS A PRIVATE ATTORNEY GENERAL
SEEKING TO VINDICATE THE PUBLIC INTEREST.  /3/  SOME OF THEM REQUIRE
THAT THE TAXPAYER HAVE MORE THAN AN INFINITESIMAL FINANCIAL STAKE IN
THE PROBLEM.  /4/  AT THE FEDERAL LEVEL, CONGRESS CAN OF COURSE DEFINE
BROAD CATEGORIES OF "AGGRIEVED" PERSONS WHO HAVE STANDING TO LITIGATE
CASES OR CONTROVERSIES.  BUT, CONTRARY TO WHAT MY BROTHER HARLAN
SUGGESTS, THE FAILURE OF CONGRESS TO ACT HAS NOT BARRED THIS COURT FROM
ALLOWING STANDING TO SUE AND FROM PROVIDING REMEDIES.  THE MULTITUDE OF
CASES UNDER THE FOURTH, AS WELL AS THE FOURTEENTH AMENDMENT, ARE
WITNESS ENOUGH.  /5/ 

THE CONSTITUTIONAL GUIDE IS "CASES" OR "CONTROVERSIES" WITHIN THE
MEANING OF SEC. 2 OF ART. III OF THE CONSTITUTION.  AS RESPECTS OUR
APPELLATE JURISDICTION, CONGRESS MAY LARGELY FASHION IT AS CONGRESS
DESIRES BY REASON OF THE EXPRESS PROVISIONS OF SEC. 2, ART. III.  SEE
EX PARTE MCCARDLE, 7 WALL.  506.  BUT WHERE THERE IS JUDICIAL POWER TO
ACT, THERE IS JUDICIAL POWER TO DEAL WITH ALL THE FACETS OF THE OLD
ISSUE OF STANDING. 

TAXPAYERS CAN BE DIGILANT PRIVATE ATTORNEYS GENERAL.  THEIR STAKE IN
THE OUTCOME OF LITIGATION MAY BE DE MINIMIS BY FINANCIAL STANDARDS, YET
VERY GREAT WHEN MEASURED BY A PARTICULAR CONSTITUTIONAL MANDATE.  MY
BROTHER HARLAN'S OPINION REFLECTS THE BRITISH, NOT THE AMERICAN,
TRADITION OF CONSTITUTIONALISM.  WE HAVE A WRITTEN CONSTITUTION; AND IT
IS FULL OF "THOU SHALT NOTS" DIRECTED AT CONGRESS AND THE PRESIDENT AS
WELL AS AT THE COURTS.  AND THE ROLE OF THE FEDERAL COURTS IS NOT ONLY
TO SERVE AS REFEREE BETWEEN THE STATES AND THE CENTER BUT ALSO TO
PROTECT THE INDIVIDUAL AGAINST PROHIBITED CONDUCT BY THE OTHER TWO
BRANCHES OF THE FEDERAL GOVERNMENT. 

THERE HAS LONG BEEN A SCHOOL OF THOUGHT HERE THAT THE LESS THE
JUDICIARY DOES, THE BETTER.  IT IS OFTEN SAID THAT JUDICIAL INTRUSION
SHOULD BE INFREQUENT, SINCE IT IS "ALWAYS ATTENDED WITH A SERIOUS EVIL,
NAMELY, THAT THE CORRECTION OF LEGISLATIVE MISTAKES COMES FROM THE
OUTSIDE, AND THE PEOPLE THUS LOSE THE POLITICAL EXPERIENCE, AND THE
MORAL EDUCATION AND STIMULUS THAT COME FROM FIGHTING THE QUESTION OUT
IN THE ORDINARY WAY, AND CORRECTING THEIR OWN ERRORS"; THAT THE EFFECT
OF A PARTICIPATION BY THE JUDICIARY IN THESE PROCESSES IS "TO DWARF THE
POLITICAL CAPACITY OF THE PEOPLE, AND TO DEADEN ITS SENSE OF MORAL
RESPONSIBILITY."  J. THAYER, JOHN MARSHALL 106, 107 (1901). 

THE LATE EDMOND CAHN, WHO OPPOSED THAT VIEW, STATED MY PHILOSOPHY. 
HE EMPHASIZED THE IMPORTANCE OF THE ROLE THAT THE FEDERAL JUDICIARY WAS
DESIGNED TO PLAY IN GUARDING BASIC RIGHTS AGAINST MAJORITARIAN
CONTROL.  HE CHIDED THE VIEW EXPRESSED BY MY BROTHER HARLAN:  "WE ARE
ENTITLED TO REPROACH THE MAJORITARIAN JUSTICES OF THE SUPREME COURT . .
. WITH STRAINING TO BE REASONABLE WHEN THEY OUGHT TO BE ADAMANT."  CAN
THE SUPREME COURT DEFEND CIVIL LIBERTIES?  IN SAMUEL, ED., TOWARD A
BETTER AMERICA 132, 144 (1968).  HIS DESCRIPTION OF OUR CONSTITUTIONAL
TRADITION WAS IN THESE WORDS:

"BE NOT REASONABLE WITH INQUISITIONS, ANONYMOUS INFORMERS, AND
SECRET FILES THAT MOCK AMERICAN JUSTICE.  BE NOT REASONABLE WITH
PUNITIVE DENATIONALIZATIONS, EX POST FACTO DEPORTATIONS, LABELS OF
DISLOYALTY, AND ALL THE OTHER STRATAGEMS FOR OUTLAWING HUMAN BEINGS
FROM THE COMMUNITY OF MANKIND.  THESE DEVICES HAVE PUT US TO SHAME. 
EXERCISE THE FULL JUDICIAL POWER OF THE UNITED STATES; NULLIFY THEM,
FORBID THEM; AND MAKE US PROUD AGAIN."  ID., 144-145. 

THE JUDICIARY IS AN INDISPENSABLE PART OF THE OPERATION OF OUR
FEDERAL SYSTEM.  WITH THE GROWING COMPLEXITIES OF GOVERNMENT IT IS
OFTEN THE ONE AND ONLY PLACE WHERE EFFECTIVE RELIEF CAN BE OBTAINED. 
IF THE JUDICIARY WERE TO BECOME A SUPER-LEGISLATIVE GROUP SITTING IN
JUDGMENT ON THE AFFAIRS OF PEOPLE, THE SITUATION WOULD BE INTOLERABLE. 
BUT WHERE WRONGS TO INDIVIDUALS ARE DONE BY VIOLATION OF SPECIFIC
GUARANTEES, IT IS ABDICATION FOR COURTS TO CLOSE THEIR DOORS. 

MARSHALL WROTE IN MARBURY V. MADISON, 1 CRANCH 137, 178, THAT IF THE
JUDICIARY STAYED ITS HAND IN DEFERENCE TO THE LEGISLATURE, IT WOULD
GIVE THE LEGISLATURE "A PRACTICAL AND REAL OMNIPOTENCE."  MR. BROTHER
HARLAN'S VIEW WOULD DO JUST THAT, FOR UNLESS CONGRESS CREATED A
PROCEDURE THROUGH WHICH ITS LEGISLATIVE CREATION COULD BE CHALLENGED
QUICKLY AND WITH EASE, THE MOMENTUM OF WHAT IT HAD DONE WOULD GRIND THE
DISSENTER UNDER. 

WE HAVE A CONSTITUTION DESIGNED TO KEEP GOVERNMENT OUT OF PRIVATE
DOMAINS.  BUT THE FENCES HAVE OFTEN BEEN BROKEN DOWN; AND FROTHINGHAM
DENIED EFFECTIVE MACHINERY TO RESTORE THEM.  THE CONSTITUTION EVEN WITH
THE JUDICIAL GLOSS IT HAS ACQUIRED PLAINLY IS NOT ADEQUATE TO PROTECT
THE INDIVIDUAL AGAINST THE GROWING BUREAUCRACY IN THE LEGISLATIVE AND
EXECUTIVE BRANCHES.  HE FACES A FORMIDABLE OPPONENT IN GOVERNMENT, EVEN
WHEN HE IS ENDOWED WITH FUNDS AND WITH COURAGE.  THE INDIVIDUAL IS
ALMOST CERTAIN TO BE PLOWED UNDER, UNLESS HE HAS A WELL-ORGANIZED
ACTIVE POLITICAL GROUP TO SPEAK FOR HIM.  THE CHURCH IS ONE.  THE PRESS
IS ANOTHER.  THE UNION IS A THIRD.  BUT IF A POWERFUL SPONSOR IS
LACKING, INDIVIDUAL LIBERTY WITHERS-- IN SPITE OF GLOWING OPINIONS AND
RESOUNDING CONSTITUTIAL PHRASES. 

I WOULD NOT BE NIGGARDLY THEREFORE IN GIVING PRIVATE ATTORNEYS
GENERAL STANDING TO SUE.  I WOULD CERTAINLY NOT WAIT FOR CONGRESS TO
GIVE ITS BLESSING TO OUR DECIDING CASES CLEARLY WITHIN OUR ARTICLE III
JURISDICTION.  TO WAIT FOR A SIGN FROM CONGRESS IS TO ALLOW IMPORTANT
CONSTITUTIONAL QUESTIONS TO GO UNDECIDED AND PERSONAL LIBERTY
UNPROTECTED. 

THERE NEED BE NO INUNDATION OF THE FEDERAL COURTS IF TAXPAYERS'
SUITS ARE ALLOWED.  THERE IS A WISE JUDICIAL DISCRETION THAT USUALLY
CAN DISTINGUISH BETWEEN THE FRIVOLOUS QUESTION AND THE SUBSTANTIAL
QUESTION, BETWEEN CASES RIPE FOR DECISION AND CASES THAT NEED PRIOR
ADMINISTRATIVE PROCESSING, AND THE LIKE.  /6/  WHEN THE JUDICIARY IS NO
LONGER "A GREAT ROCK"  /7/  IN THE SOTRM, AS LORD SANKEY ONCE PUT IT,
WHEN THE COURTS ARE NIGGARDLY IN THE USE OF THEIR POWER AND REACH GREAT
ISSUES ONLY TIMIDLY AND RELUCTANTLY, THE FORCE OF THE CONSTITUTION IN
THE LIFE OF THE NATION IS GREATLY WEAKENED. 

GIDEON HAUSNER, AFTER REVIEWING THE SEVER SECURITY MEASURES
SOMETIMES NEEDED FOR ISRAEL'S SURVIVAL AND THE VIGILANCE OF HER COURTS
IN MAINTAINING THE RIGHTS OF INDIVIDUALS, RECENTLY STATED, "WHEN ALL IS
SAID AND DONE, ONE IS INCLINED TO THINK THAT A RIGID CONSTITUTIONAL
FRAME IS ON THE WHOLE PREFERABLE EVEN IF IT SERVES NO BETTER PURPOSE
THAN OBSTRUCTING AND EMBARRASSING AN OVER-ACTIVE EXECUTIVE." 
INDIVIDUALS' RIGHTS IN THE COURTS OF ISRAEL, INTERNATIONAL LAWYERS
CONVENTION IN ISRAEL, 1958, PP. 201, 228 (1959). 

THAT OBSERVATION IS APT HERE, WHATEVER THE TRANSGRESSION AND
WHATEVER BRANCH OF GOVERNMENT MAY BE IMPLICATED.  WE HAVE RECENTLY
REVIEWED THE HOST OF DEVICES USED BY THE STATES TO AVOID OPENING TO
NEGROES PUBLIC FACILITIES ENJOYED BY WHITES.  GREEN V. SCHOOL BOARD OF
NEW KENT COUNTY, 391 U.S. 430; RANEY V. BOARD OF EDUCATION, 391 U.S.
443; MONROE V. BOARD OF COMMISSIONERS, 391 U.S.E 450.  THERE IS A LIKE
PROCESS AT WORK AT THE FEDERAL LEVEL IN RESPECT TO AID TO RELIGION. 
THE EFFORTS MADE TO INSERT IN THE LAW AN EXPRESS PROVISION WHICH WOULD
ALLOW FEDERAL AID TO SECTARIAN SCHOOLS TO BE REVIEWABLE IN THE COURTS
WAS DEFEATED.  /8/  THE MOUNTING FEDERAL AID TO SECTARIAN SCHOOLS IS
NOTORIOUS AND THE SUBTERFUGES NUMEROUS.  /9/ 

I WOULD BE AS LIBERAL IN ALLOWING TAXPAYERS STANDING TO OBJECT TO
THESE VIOLATIONS OF THE FIRST AMENDMENT AS I WOULD IN GRANTING STANDING
TO PEOPLE TO COMPLAIN OF ANY INVASION OF THEIR RIGHTS UNDER THE FOURTH
AMENDMENT OF THE FOURTEENTH OR UNDER ANY OTHER GUARANTEE IN THE
CONSTITUTION ITSELF OR IN THE BILL OF RIGHTS. 

/1/  MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS, 2
WRITINGS OF JAMES MADISON 186 (HUNT ED. 1901). 

/2/  THE TWO CLEAR EXCEPTIONS ARE MUNICIPAL TAXPAYERS' SUITS IN
KANSAS (SEE ASENDORF V. COMMON SCHOOL DIST. NO. 102, 175 KAN. 601, 266
P.2D 309 (1954) AND STATE TAXPAYERS' SUITS IN NEW YORK (SEE SCHIEFFELIN
V. KOMFORT, 212 N.Y. 520, 106 N.E. 675 (1914); ST. CLAIR V. YONKERS
RACEWAY, 13 N.Y.2D 72, 242 N.Y.S.2D 43, 192 N.E.2D 15 (1963); BUT SEE
KUHN V. CURRAN, 294 N.Y. 207, 61 N.E.2D 513 (1945)). 

/3/  SEE, E.G., CLAPP V. TOWN OF JAFFREY, 97 N.H. 456, 91 A.2D 464
(1952); VIBBERTS V. HART, 85 R.I. 35, 125 A.2D 193 (1956); LIEN V.
NORTHWESTERN ENGINEERING CO., 74 S.D. 476, 54 N.W.2D 472 (1952).  ("IT
IS NOW THE SETTLED LAW OF THIS STATE THAT A TAXPAYER OR ELECTOR HAVING
NO SPEICAL INTEREST MAY INSTITUTE AN ACTION TO PROTECT A PUBLIC
RIGHT."  74 S.D.,AT 479, 54 N.W.2D,AT 474).     /4/  SEE, E.G., CREWS
V. BEATTIE, 197 S.C. 32, 14 S.E.2D 351 (1941); GOODLAND V. ZIMMERMAN,
243 WIS. 459, 10 N.W.2D 180 (1943) (TAXPAYER MAY NOT ENJOIN STATE
EXPENDITURE OF $1.49); CONTRA, RICHARDSON V. BLACKBURN, 42 DEL.CH. 54,
187 A.2D 823 (1963); WOODARD V. REILY, 244 LA. 337, 152 SO.2D
41(1963). 

THE ESTIMATES OF COMMENTATORS AS TO HOW MANY JURISDICTIONS HAVE
SPECIFICALLY UPHELD TAXPAYER'S SUITS RANGE FROM 32 TO 40.  SEE
GENERALLY 3 K.DAVIS,ADMINISTRATIVE LAW TREATISE 22.09 (1958), SECS.
22.09-22.10 (1965 SUPP.); JAFFE, STANDING TO SECURE JUDICIAL REVIEW:
PUBLIC ACTIONS, 74 HARV.L.REV.  1265, 1276-1281 (1961); COMMENT,
TAXPAYERS' SUITS:  A SURVEY AND SUMMARY, 69 YALE L.J. 895 (1960); ST.
CLAIR V. YONKERS RACEWAY, 13 N.Y.2D 72, 77-81, 242 N.Y.S.2D 43, 45-49,
192 N.E.2D 15, 16-19 (1963) (DISSENTING OPINION OF FULD, J.). 

/5/  SEE, E.G., NAACP V. ALABAMA, 357 U.S. 449; PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510.  AS THE COURT SAID IN BARROWS V. JACKSON, 346
U.S. 249, 255, APART FROM ARTICLE III JURISDICTIONAL QUESTIONS,
STANDING INVOLVES A "RULE OF SELF-RESTRAINT FOR ITS OWN GOVERNANCE"
WHICH "THIS COURT HAS DEVELOPED" ITSELF.  AND ATTEMPTS BY CONGRESS TO
CONFER STANDING WHEN IT IS CONSTITUTIONALLY LACKING ARE UNAVAILING. 
MUSKRAT V. UNITED STATES, 219 U.S. 346. 

/6/  "THE GENERAL INDIFFERENCE OF PRIVATE INDIVIDUALS TO PUBLIC
OMISSIONS AND ENCROACHMENTS, THE FEAR OF EXPENSE IN UNSUCCESSFUL AND
EVEN IN SUCCESSFUL LITIGATION, AND THE DISCRETION OF THE COURT, HAVE
BEEN, AND DOUBTLESS WILL CONTINUE TO BE, A SUFFICIENT GUARD TO THESE
PUBLIC OFFICALS AGAINST TOO NUMEROUS AND UNREASONABLE ATTACKS."  FERRY
V. WILLIAMS, 41 N.J.L. 332, 339 (SUP. CT. 1879). 

/7/  QUOTED IN THE LAW TIMES, MARCH 17, 1928, AT 242. 

/8/  THESE EFFORTS, COMMENCING IN 1961, ARE DISCUSSED IN S. REP. NO.
85, 90TH CONG., 1ST SESS., 2-3 (1967), AND S. REP. NO. 473, 90TH CONG.,
1ST SESS., 10-15 (1967).  THE SENATE ADDED SUCH A PROVISION TO THE
HIGHER EDUCATION FACILITIES ACT OF 1963, BUT IT DID NOT SURVIVE
CONFERENCE.  S. REP. NO. 85, AT 2.  A BILL, S. 3, TO MAKE CERTAIN
"ESTABLISHMENT" QUESTIONS REVIEWABLE HAS BEEN REPORTED BY THE SENATE IN
THE NINETIETH CONGRESS. 

/9/  "TUITION GRANTS TO PARENTS OF STUDENTS IN CHURCH SCHOOLS IS
CONSIDERED BY THE CLERICS AND THEIR HELPERS TO HAVE POSSIBILITIES.  THE
IDEA HERE IS THAT THE PARENT RECEIVES THE MONEY, CARRIES IT DOWN TO THE
SCHOOL, AND GIVES IT TO THE PRIEST.  SINCE THE MONEY PAUSES A MOMENT
WITH THE PARENT BEFORE GOING TO THE PRIEST, IT IS ARGUED THAT THIS
EVADES THE CONSTITUTIONAL PROHIBITION AGAINST GOVERNMENT MONEY FOR
RELIGION.  THIS IS A DIAPHANOUS TRICK WHICH SEEKS TO DO INDIRECTLY WHAT
MAY NOT BE DONE DIRECTLY. 

"ANOTHER ONE IS THE 'AUTHORITY.'  THE STATE MAY NOT GRANT AID
DIRECTLY TO CHURCH SCHOOLS.  BUT NOW ABOUT SETTING UP AN AUTHORITY--
LIKE THE TURNPIKE AUTHORITY?  THE STATE COULD GIVE THE MONEY TO THE
AUTHORITY WHICH, UNDER ONE PRETEXT OR ANOTHER, COULD CHANNEL IT INTO
THE CHURCH SCHOOLS. 

"YET ANOTHER FAVORITE OF THOSE WHO COVET SECTARIAN SUBSIDIES IS
CHILD BENEFIT.'  GOVERNMENT MAY NOT AID CHURCH SCHOOLS, BUT IS MAY AID
THE CHILDREN IN THE SCHOOLS.  THE TROUBLE WITH THIS ARGUMENT IS THAT IT
PROVES TOO MUCH.  ANYTHING THAT IS DOES FOR A SCHOOL WOULD PRESUMABLY
BE OF SOME BENEFIT TO THE CHILDREN IN IT.  GOVERNMENT COULD EVEN BUILD
CHURCH SCHOOL CLASSROOMS, UNDER THIS THEORY, BECAUSE IT WOULD BENEFIT
THE CHILDREN TO HAVE NICE ROOMS TO STUDY IN."  21 CHURCH & STATE (JUNE
1968), P. 5 (EDITORIAL). 

MR. JUSTICE STEWART, CONCURRING. 

I JOIN THE JUDGMENT AND OPINION OF THE COURT, WHICH I UNDERSTAND TO
HOLD ONLY THAT A FEDERAL TAXPAYER HAS STANDING TO ASSERT THAT A
SPECIFIC EXPENDITURE OF FEDERAL FUNDS VIOLATES THE ESTABLISHMENT CLAUSE
OF THE FIRST AMENDMENT.  BECAUSE THAT CLAUSE PLAINLY PROHIBITS TAXING
AND SPENDING IN AID OF RELIGION, EVERY TAXPAYER CAN CLAIM A PERSONAL
CONSTITUTIONAL RIGHT NOT TO BE TAXED FOR THE SUPPORT OF A RELIGIOUS
INSTITUTION.  THE PRESENT CASE IS THUS READILY DISTINGUISHABLE FROM
FROTHINGHAM V. MELLON, 262 U.S. 447, WHERE THE TAXPAYER DID NOT RELY ON
AN EXPLICIT CONSTITUTIONAL PROHIBITION BUT INSTEAD QUESTIONED THE SCOPE
OF THE POWERS DELEGATED TO THE NATIONAL LEGISLATURE BY ARTICLE I OF THE
CONSTITUTION. 

AS THE COURT NOTES, "ONE OF THE SPECIFIC EVILS FEARED BY THOSE WHO
DRAFTED THE ESTABLISHMENT CLAUSE AND FOUGHT FOR ITS ADOPTION WAS THAT
THE TAXING AND SPENDING POWER WOULD BE USED TO FAVOR ONE RELIGION OVER
ANOTHER OR TO SUPPORT RELIGION IN GENERAL."  ANTE, AT 103.  TODAY'S
DECISION NO MORE THAN RECOGNIZES THAT THE APPELLANTS HAVE A CLEAR STAKE
AS TAXPAYERS IN ASSURING THAT THEY NOT BE COMPELLED TO CONTRIBUTE EVEN
"THREE PENCE . . . OF (THEIR) PROPERTY FOR THE SUPPORT OF ANY ONE
ESTABLISHMENT."  IBID.  IN CONCLUDING THAT THE APPELLANTS THEREFORE
HAVE STANDING TO SUE, WE DO NOT UNDERMINE THE SALUTARY PRINCIPLE,
ESTABLISHED BY FROTHINGHAM AND REAFFIRMED TODAY, THAT A TAXPAYER MAY
NOT "EMPLOY A FEDERAL COURT AS A FORUM IN WHICH TO AIR HIS GENERALIZED
GRIEVANCES ABOUT THE CONDUCT OF GOVERNMENT OR THE ALLOCATION OF POWER
IN THE FEDERAL SYSTEM."  ANTE, AT 106. 

MR. JUSTICE FORTAS, CONCURRING.  I WOULD CONFINE THE RULING IN THIS
CASE TO THE PROPOSITION THAT A TAXPAYER MAY MAINTAIN A SUIT TO
CHALLENGE THE VALIDITY OF A FEDERAL EXPENDITURE ON THE GROUND THAT THE
EXPENDITURE VIOLATES THE ESTABLISHMENT CLAUSE.  AS THE COURT'S OPINION
RECITES, THERE IS ENOUGH IN THE CONSTITUTIONAL HISTORY OF THE
ESTABLISHMENT CLAUSE TO SUPPORT THE THESIS THAT THIS CLAUSE INCLUDES A
SPECIFIC PROHIBITION UPON THE USE OF THE POWER TO TAX TO SUPPORT AN
ESTABLISHMENT OF RELIGION.  /1/  THERE IS NO REASON TO SUGGEST, AND NO
BASIS IN THE LOGIC OF THIS DECISION FOR IMPLYING, THAT THERE MAY BE
OTHER TYPES OF CONGRESSIONAL EXPENDITURES WHICH MAY BE ATTACKED BY A
LITIGANT SOLELY ON THE BASIS OF HIS STATUS AS A TAXPAYER. 

I AGREE THAT FROTHINGHAM DOES NOT FORECLOSE TODAY'S RESULT.  I AGREE
THAT THE CONGRESSIONAL POWERS TO TAX AND SPEND ARE LIMITED BY THE
PROHIBITION UPON CONGRESS TO ENACT LAWS "RESPECTING AN ESTABLISHMENT OF
RELIGION."  THIS THESIS, SLENDER AS ITS BASIS IS, PROVIDES A DIRECT
"NEXUS," AS THE COURT PUTS IT, BETWEEN THE USE AND COLLECTION OF TAXES
AND THE CONGRESSIONAL ACTION HERE.  BECAUSE OF THIS UNIQUE "NEXUS," IN
MY JUDGMENT, IT IS NOT FAR-FETCHED TO RECOGNIZE THAT A TAXPAYER HAS A
SPECIAL CLAIM TO STATUS AS A LITIGANT IN A CASE RAISING THE
"ESTABLISHMENT" ISSUE.  THIS SPECIAL CLAIM IS ENOUGH, I THINK, TO
PERMIT US TO ALLOW THE SUIT, COUPLED, AS IT IS, WITH THE INTEREST WHICH
THE TAXPAYER AND ALL OTHER CITIZENS HAVE IN THE CHURCH-STATE ISSUE.  IN
TERMS OF THE STRUCTURE AND BASIC PHILOSOPHY OF OUR CONSTITUTIONAL
GOVERNMENT, IT WOULD BE DIFFICULT TO POINT TO ANY ISSUE THAT HAS A MORE
INTIMATE, PERVASIVE, AND FUNDAMENTAL IMPACE UPON THE LIFE OF THE
TAXPAYER-- AND UPON THE LIFE OF ALL CITIZENS. 

PERHAPS THE VITAL INTEREST OF A CITIZEN IN THE ESTABLISHMENT ISSUE,
WITHOUT REFERENCE TO HIS TAXPAYER'S STATUS, WOULD BE ACCEPTABLE AS A
BASIS FOR THIS CHALLENGE.  WE NEED NOT DECIDE THIS.  BUT CERTAINLY, I
BELIEVE, WE MUST RECOGNIZE THAT OUR PRINCIPLE OF JUDICIAL SCRUTINY OF
LEGISLATIVE ACTS WHICH RAISE IMPORTANT CONSTITUTIONAL QUESTIONS
REQUIRES THAT THE ISSUE HERE PRESENTED-- THE SEPARATION OF STATE AND
CHURCH-- WHICH THE FOUNDING FATHERS REGARDED AS FUNDAMENTAL TO OUR
CONSTITUTIONAL SYSTEM-- SHOULD BE SUBJECTED TO JUDICIAL TESTING.  THIS
IS NOT A QUESTION WHICH WE, IF WE ARE TO BE FAITHFUL TO OUR TRUST,
SHOULD CONSIGN TO LIMBO, UNACKNOWLEDGED, UNRESOLVED, AND UNDECIDED. 

ON THE OTHER HAND, THE URGENT NECESSITIES OF THIS CASE AND THE
PRECARIOUS OPENING THROUGH WHICH WE FIND OUR WAY TO CONFRONT IT, DO NOT
DEMAND THAT WE OPEN THE DOOR TO A GENERAL ASSAULT UPON EXERCISES OF THE
SPENDING POWER.  THE STATUS OF TAXPAYER SHOULD NOT BE ACCEPTED AS A
LAUNCHING PAD FOR AN ATTACK UPON ANY TARGET OTHER THAN LEGISLATION
AFFECTING THE ESTABLISHMENT CLAUSE.  SEE CONCURRING OPINION OF STEWART,
J., ANTE, P. 114. 

/1/  SEE ANTE, AT 104, N. 24. 

MR. JUSTICE HARLAN, DISSENTING. 

THE PROBLEMS PRESENTED BY THIS CASE ARE NARROW AND RELATIVELY
ABSTRACT, BUT THE PRINCIPLES BY WHICH THEY MUST BE RESOLVED INVOLVE
NOTHING LESS THAT THE PROPER FUNCTIONING OF THE FEDERAL COURTS, AND SO
RUN TO THE ROOTS OF OUR CONSTITUTIONAL SYSTEM.  THE NUB OF MY VIEW IS
THAT THE END RESULT OF FROTHINGHAM V. MELLON, 262 U.S. 447, WAS
CORRECT, EVEN THOUGH, LIKE OTHERS, /1/  I DO NOT SUBSCRIBE TO ALL OF
ITS REASONING AND PREMISES.  ALTHOUGH I THEREFORE AGREE WITH CERTAIN OF
THE CONCLUSIONS REACHED TODAY BY THE COURT, /2/  I CANNOT ACCEPT THE
STANDING DOCTRINE THAT IT SUBSTITUTES FOR FROTHINGHAM, FOR IT SEEMS TO
ME THAT THIS NEW DOCTRINE RESTS ON PREMISES THAT DO NOT WITHSTAND
ANALYSIS.  ACCORDINGLY, I RESPECTFULLY DISSENT. 

        I. 

IT IS DESIRABLE FIRST TO RESTATE THE BASIC ISSUES IN THIS CASE.  THE
QUESTION HERE IS NOT, AS IT WAS NOT IN FROTHINGHAM, WHETHER "A FEDERAL
TAXPAYER IS WITHOUT STANDING A CHALLENGE THE CONSTITUTIONALITY OF A
FEDERAL STATUTE."  ANTE, AT 85.  IT COULD HARDLY BE DISPUTED THAT
FEDERAL TAXPAYERS MAY, AS TAXPAYERS, CONTEST THE CONSTITUTIONALITY OF
TAX OBLIGATIONS IMPOSED SEVERALLY UPON THEM BY FEDERAL STATUTE.  SUCH A
CHALLENGE MAY BE MADE BY WAY OF DEFENSE TO AN ACTION BY THE UNITED
STATES TO RECOVER THE AMOUNT OF A CHALLENGED TAX DEBT, SEE, E.G.,
HYLTON V. UNITED STATES, 3 DALL.  171; MCCRAY V. UNITED STATES, 195
U.S. 27; UNITED STATES V. BUTLER, 297 U.S. 1; OR TO A PROSECUTION FOR
WILLFUL FAILURE TO PAY OR TO REPORT THE TAX.  SEE, E.G., MARCHETTI V.
UNITED STATES, 390 U.S. 39.  MOREOVER, SUCH A CHALLENGE MAY PROVIDE THE
BASIS OF AN ACTION BY A TAXPAYER TO OBTAIN THE REFUND OF A PREVIOUS TAX
PAYMENT.  SEE, E.G., BAILEY V. DREXEL FURNITURE CO., 259 U.S. 20. 

THE LAWSUITS HERE AND IN FROTHINGHAM ARE FUNDAMENTALLY DIFFERENT. 
THEY PRESENT THE QUESTION WHETHER FEDERAL TAXPAYERS QUA TAXPAYERS MAY,
IN SUITS, IN WHICH THEY DO NOT CONTEST THE VALIDITY OF THEIR PREVIOUS
OR EXISTING TAX OBLIGATIONS, CHALLENGE THE CONSTITUTIONALITY OF THE
USES FOR WHICH CONGRESS HAS AUTHORIZED THE EXPENDITURE OF PUBLIC
FUNDS.  THESE DIFFERENCES IN THE PURPOSE OF THE CASES ARE REFLECTED IN
DIFFERENCES IN THE LITIGANTS' INTERESTS.  AN ACTION BROUGHT TO CONTEST
THE VALIDITY OF TAX LIABILITIES ASSESSED TO THE PLAINTIFF IS DESIGNED
TO VINDICATE INTERESTS THAT ARE PERSONAL AND PROPRIETARY.  THE WRONGS
ALLEGED AND THE RELIEF SOUGHT BY SUCH A PLAINTIFF ARE UNMISTAKABLY
PRIVATE; ONLY SECONDARILY ARE HIS INTERESTS REPRESENTATIVE OF THOSE OF
THE GENERAL POPULATION.  I TAKE IT THAT THE COURT, ALTHOUGH IT DOES NOT
PAUSE TO EXAMINE THE QUESTION, BELIEVES THAT THE INTERESTS OF THOSE WHO
AS TAXPAYERS CHALLENGE THE CONSTITUTIONALITY OF PUBLIC EXPENDITURES
MAY, AT LEAST IN CERTAIN CIRCUMSTANCES, BE SIMILAR.  YET THIS
ASSUMPTION IS SURELY MISTAKEN.  /3/ 

THE COMPLAINT IN THIS CASE, UNLIKE THAT IN FROTHINGHAM, CONTAINS NO
ALLEGATION THAT THE CONTESTED EXPENDITURES WILL IN ANY FASHION AFFECT
THE AMOUNT OF THESE TAXPAYERS' OWN EXISTING OR FORESEEABLE TAX
OBLIGATIONS.  EVEN IN CASES IN WHICH SUCH AN ALLEGATION IS MADE, THE
SUIT CANNOT RESULT IN AN ADJUDICATION EITHER OF THE PLAINTIFF'S TAX
LIABILITIES OR OF THE PROPRIETY OF ANY PARTICULAR LEVEL OF TAXATION. 
THE RELIEF AVAILABLE TO SUCH A PLAINTIFF CONSISTS ENTIRELY OF THE
VINDICATION OF RIGHTS HELD IN COMMON BY ALL CITIZENS.  IT IS THUS
SCARCELY SURPRISING THAT FEW OF THE STATE COURTS THAT PERMIT SUCH SUITS
REQUIRE PROOF EITHER THAT THE CHALLENGED EXPENDITURE IS CONSEQUENTIAL
IN AMOUNT OR THAT IT IS LIKELY TO AFFECT SIGNIFICANTLY THE PLAINTIFF'S
OWN TAX BILL; THESE COURTS HAVE AT LEAST IMPLIEDLY RECOGNIZED THAT SUCH
ALLEGATIONS ARE SURPLUSAGE, USEFUL ONLY TO PRESERVE THE FORM OF AN
OBVIOUS FICTION.  /4/ 

NOR ARE TAXPAYERS' INTERESTS IN THE EXPENDITURE OF PUBLIC FUNDS
DIFFERENTIATED FROM THOSE OF THE GENERAL PUBLIC BY ANY SPECIAL RIGHTS
RETAINED BY THEM IN THEIR TAX PAYMENTS.  THE SIMPLE FACT IS THAT NO
SUCH RIGHTS CAN SENSIBLY BE SAID TO EXIST.  TAXES ARE ORDINARILY LEVIED
BY THE UNITED STATES WITHOUT LIMITATIONS OF PURPOSE; ABSENT SUCH A
LIMITATION, PAYMENTS RECEIVED BY THE TREASURY IN SATISFACTION OF TAX
OBLIGATIONS LAWFULLY CREATED BECOME PART OF THE GOVERNMENT'S GENERAL
FUNDS.  THE NATIONAL LEGISLATURE IS REQUIRED BY THE CONSTITUTION TO
EXERCISE ITS SPENDING POWERS TO "PROVIDE FOR THE COMMON DEFENCE AND
GENERAL WELFARE."  ART. I, SEC. 8, CL. 1.  WHATEVER OTHER IMPLICATIONS
THERE MAY BE TO THAT SWEEPING PHRASE, IT SURELY MEANS THAT THE UNITED
STATES HOLDS ITS GENERAL FUNDS, NOT AS STAKEHOLDER OR TRUSTEE FOR THOSE
WHO HAVE PAID ITS IMPOSTS, BUT AS SURROGATE FOR THE POPULATION AT
LARGE.  ANY RIGHTS OF A TAXPAYER WITH RESPECT TO THE PURPOSES FOR WHICH
THOSE FUNDS ARE EXPENDED ARE THUS SUBSUMED IN, AND EXTINGUISHED BY, THE
COMMON RITHTS OF ALL CITIZENS.  TO CHARACTERIZE TAXPAYERS' INTERESTS IN
SUCH EXPENDITURES AS PROPRIETARY OR EVEN PERSONAL EITHER DEPRIVES THOSE
TERMS OF ALL MEANING OR POSTULATES FOR TAXPAYERS A SCINTILLA JURIS IN
FUNDS THAT NO LONGER ARE THEIRS. 

SURELY IT IS PLAIN THAT THE RIGHTS AND INTERESTS OF TAXPAYERS WHO
CONTEST THE CONSTITUTIONALITY OF PUBLIC EXPENDITURES ARE MARKEDLY
DIFFERENT FROM THOSE OF "HOHFELDIAN" PLAINTIFFS, /5/  INCLUDING THOSE
TAXPAYER-PLAINTIFFS WHO CHALLENGE THE VALIDITY OF THEIR OWN TAX
LIABILITIES.  WE MUST RECOGNIZE THAT THESE NON-HOHFELDIAN PLAINTIFFS
COMPLAIN, JUST AS THE PETITIONER IN FROTHINGHAM SOUGHT TO COMPLAIN, NOT
AS TAXPAYERS, BUT AS "PRIVATE ATTORNEYS-GENERAL."  /6/  THE INTERESTS
THEY REPRESENT, AND THE RIGHTS THEY ESPOUSE, ARE BEREFT OF ANY PERSONAL
OR PROPRIETARY COLORATION.  THEY ARE, AS LITIGANTS, INDISTINGUISHABLE
FROM ANY GROUP SELECTED AT RANDOM FROM AMONG THE GENERAL POPULATION,
TAXPAYERS AND NONTAXPAYERS ALIKE.  THESE ARE AND MUST BE, TO ADOPT
PROFESSOR JAFFE'S USEFUL PHRASE, "PUBLIC ACTIONS" BROUGHT TO VINDICATE
PUBLIC RIGHTS.  /7/     IT DOES NOT, HOWEVER, FOLLOW THAT SUITS BROGUTH
BY NON-HOHFELDIAN PLAINTIFFS ARE EXCLUDED BY THE "CASE OR CONTROVERSY"
CLAUSE OF ARTICLE III OF THE CONSTITUTION FROM THE JURISDICTION OF THE
FEDERAL COURTS.  THIS AND OTHER FEDERAL COURTS HAVE REPEATEDLY HELD
THAT INDIVIDUAL LITIGANTS, ACTING AS PRIVATE ATTORNEYS-GENERAL, MAY
HAVE STANDING AS "REPRESENTATIVES OF THE PUBLIC INTEREST."  SCRIPPS
HOWARD RADIO V. COMM'N, 316 U.S. 4, 14.  SEE ALSO COMMISSION V. SANDERS
RADIO STATION, 309 U.S. 470, 477; ASSOCIATED INDUSTRIES V. ICKES, 134
F.2D 694; READE V. EWING, 205 F.2D 630; SCENIC HUDSON PRESERVATION
CONF. V. FPC, 354 F.2D 608; OFFICE OF COMMUNICATION OF UNITED CHURCH OF
CHRIST V. FCC, 123 U.S.APP.D.C. 328, 359 F.2D 994.  COMPARE OKLAHOMA V.
CIVIL SERVICE COMM'N, 330 U.S. 127, 137-139.  AND SEE, ON ACTIONS QUI
TAM, MARVIN V. TROUT, 199 U.S. 212, 225; UNITED STATES EX REL. MARCUS
V. HESS, 317 U.S. 537, 546.  THE VARIOUS LINES OF AUTHORITY ARE BY NO
MEANS FREE OF DIFFICULTY, AND CERTAIN OF THE CASES MAY BE EXPLICABLE AS
INVOLVING A PERSONAL, IF REMOTE, ECONOMIC INTEREST, BUT I THINK THAT IT
IS, NONETHELESS, CLEAR THAT NON-HOHFELDIAN PLAINTIFFS AS SUCH ARE NOT
CONSTITUTIONALLY EXCLUDED FROM THE FEDERAL COURTS.  THE PROBLEM
ULTIMATELY PRESENTED BY THIS CASE IS, IN MY VIEW, THEREFORE TO
DETERMINE IN WHAT CIRCUMSTANCES, CONSONANT WITH THE CHARACTER AND
PROPER FUNCTIONING OF THE FEDERAL COURTS, SUCH SUITS SHOULD BE
PERMITTED.  /8/  WITH THIS PREFACE, I SHALL EXAMINE THE POSITION
ADOPTED BY THE COURT. 

        II. 

AS I UNDERSTAND IT, THE COURT'S POSITION IS THAT IT IS UNNECESSARY
TO DECIDE IN WHAT CIRCUMSTANCES PUBLIC ACTIONS SHOULD BE PERMITTED, FOR
IT IS POSSIBLE TO IDENTIFY SITUATIONS IN WHICH TAXPAYERS WHO CONTEST
THE CONSTITUTIONALITY OF FEDERAL EXPENDITURES ASSERT "PERSONAL" RIGHTS
AND INTERESTS, IDENTICAL IN PRINCIPLE TO THOSE ASSERTED BY HOHFELDIAN
PLAINTIFFS.  THIS POSITION, IF SUPPORTABLE, WOULD OF COURSE AVOID MANY
OF THE DIFFICULTIES OF THIS CASE; INDEED, IF THE COURT IS CORRECT, ITS
EXTENDED EXPLORATION OF THE SUBTLETIES OF ARTICLE III IS ENTIRELY
UNNECESSARY.  BUT, FOR REASONS THAT FOLLOW, I BELIEVE THAT THE COURT'S
POSITION IS UNTENABLE. 

THE COURT'S ANALYSIS CONSISTS PRINCIPALLY OF THE OBSERVATION THAT
THE REQUIREMENTS OF STANDING ARE MET IF A TAXPAYER HAS THE "REQUISITE
PERSONAL STAKE IN THE OUTCOME" OF HIS SUIT.  ANTE, AT 101.  THIS DOES
NOT, OF COURSE, RESOLVE THE STANDING PROBLEM; IT MERELY RESTATES IT.
THE COURT IMPLEMENTS THIS STANDARD WITH THE DECLARATION THAT TAXPAYERS
WILL BE "DEEMED" TO HAVE THE NECESSARY PERSONAL INTEREST IF THEIR SUITS
SATISFY TWO CRITERIA:  FIRST, THE CHALLENGED EXPENDITURE MUST FORM PART
OF A FEDERAL SPENDING PROGRAM, AND NOT MERELY BE "INCIDENTAL" TO A
REGULATORY PROGRAM; AND SECOND, THE CONSTITUTIONAL PROVISION UNDER
WHICH THE PLAINTIFF CLAIMS MUST BE A "SPECIFIC LIMITATION" UPON
CONGRESS' SPENDING POWERS.  THE DIFFICULTIES WITH THESE CRITERIA ARE
MANY AND SEVERE, BUT IT IS ENOUGH FOR THE MOMENT TO EMPHASIZE THAT THEY
ARE NOT IN ANY SENSE A MEASUREMENT OF ANY PLAINTIFF'S INTEREST IN THE
OUTCOME OF ANY SUIT.  AS EVEN A CURSORY EXAMINATION OF THE CRITERIA
WILL SHOW, THE COURT'S STANDARD FOR THE DETERMINATION OF STANDING AND
ITS CRITERIA FOR THE SATISFACTION OF THAT STANDARD ARE ENTIRELY
UNRELATED. 

IT IS SURELY CLEAR THAT A PLAINTIFF'S INTEREST IN THE OUTCOME OF A
SUIT IN WHICH HE CHALLENGES THE CONSTITUTIONALITY OF A FEDERAL
EXPENDITURE IS NOT MADE GREATER OR SMALLER BY THE UNCONNECTED FACT THAT
THE EXPENDITURE IS, OR IS NOT, "INCIDENTAL" TO AN "ESSENTIALLY
REGULATORY" PROGRAM.  /9/  AN EXAMPLE WILL ILLUSTRATE THE POINT. 
ASSUME THAT TWO INDEPENDENT FEDERAL PROGRAMS ARE AUTHORIZED BY
CONGRESS, THAT THE FIRST IS DESIGNED TO ENCOURAGE A SPECIFIED RELIGIOUS
GROUP BY THE PROVISION TO IT OF DIRECT GRANTS-IN-AID, AND THAT THE
SECOND IS DESIGNED TO DISCOURAGE ALL OTHER RELIGIOUS GROUPS BY THE
IMPOSITION OF VARIOUS FORMS OF DISCRIMINATORY REGULATION.  EQUAL
AMOUNTS ARE APPROPRIATED BY CONGRESS FOR THE TWO PROGRAMS.  IF A
TAXPAYER CHALLENGES THEIR CONSTITUTIONALITY IN SEPARATE SUITS, /10/
ARE WE TO SUPPOSE, AS EVIDENTLY DOES THE COURT, THAT HIS "PERSONAL
STAKE" IN THE SUIT INVOLVING THE SECOND IS NECESSARILY SMALLER THAN IT
IS IN THE SUIT INVOLVING THE FIRST, AND THAT HE SHOULD THEREFORE HAVE
STANDING IN ONE BUT NOT THE OTHER? 

PRESUMABLY THE COURT DOES NOT BELIEVE THAT REGULATORY PROGRAMS ARE
NECESSARILY LESS DESTRUCTIVE OF FIRST AMENDMENT RIGHTS, OR THAT
REGULATORY PROGRAMS ARE NECESSARILY LESS PRODIGAL OF PUBLIC FUNDS THAN
ARE GRANTS-IN-AID, FOR BOTH THESE GENERAL PROPOSITIONS ARE DEMONSTRABLY
FALSE.  THE COURT'S DISREGARD OF REGULATORY EXPENDITURES IS NOT EVEN A
LOGICAL CONSEQUENCE OF ITS APPARENT ASSUMPTION THAT TAXPAYER-PLAINTIFFS
ASSERT ESSENTIALLY MONETARY INTERESTS, FOR IT SURELY CANNOT MATTER TO A
TAXPAYER QUA TAXPAYER WHETHER AN UNCONSTITUTIONAL EXPENDITURE IS USED
TO HIRE THE SERVICES OF REGULATORY PERSONNEL OR IS DISTRIBUTED AMONG
PRIVATE AND LOCAL GOVERNMENTAL AGENCIES AS GRANTS-IN-AID.  HIS INTEREST
AS TAXPAYER ARISES, IF AT ALL, FROM THE FACT OF AN UNLAWFUL
EXPENDITURE, AND NOT AS A CONSEQUENCE OF THE EXPENDITURE'S FORM. 
APPARENTLY THE COURT HAS REPUDIATED THE EMPHASIS IN FROTHINGHAM UPON
THE AMOUNT OF THE PLAINTIFF'S TAX BILL, ONLY TO SUBSTITUTE AN EQUALLY
IRRELEVANT EMPHASIS UPON THE FORM OF THE CHALLENGED EXPENDITURE. 

THE COURT'S SECOND CRITERION IS SIMILARLY UNRELATED TO ITS STANDARD
FOR THE DETERMINATION OF STANDING.  THE INTENSITY OF A PLAINTIFF'S
INTEREST IN A SUIT IS NOT MEASURED, EVEN OBLIQUELY, BY THE FACT THAT
THE CONSTITUTIONAL PROVISION UNDER WHICH HE CLAIMS IS, OR IS NOT, A
"SPECIFIC LIMITATION" UPON CONGRESS' SPENDING POWERS.  THUS, AMONG THE
CLAIMS IN FROTHINGHAM WAS THE ASSERTION THAT THE MATERNITY ACT, 42
STAT. 224, DEPRIVED THE PETITIONER OF PROPERTY WITHOUT DUE PROCESS OF
LAW.  THE COURT HAS EVIDENTLY CONCLUDED THAT THIS CLAIM DID NOT CONFER
STANDING BECAUSE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT IS NOT A
SPECIFIC LIMITATION UPON THE SPENDING POWERS.  /11/  DISREGARDING FOR
THE MOMENT THE FORMIDABLE OBSCURITY OF THE COURT'S CATEGORIES, HOW CAN
IT BE SAID THAT MRS. FROTHINGHAM'S INTERESTS IN HER SUIT WERE, AS A
CONSEQUENCE OF HER CHOICE OF A CONSTITUTIONAL CLAIM, NECESSARILY LESS
INTENSE THAN THOSE, FOR EXAMPLE, OF THE PRESENT APPELLANTS?  I AM QUITE
UNABLE TO UNDERSTAND HOW, IF A TAXPAYER BELIEVES THAT A GIVEN PUBLIC
EXPENDITURE IS UNCONSTITUTIONAL, AND IF HE SEEKS TO VINDICATE THAT
BELIEF IN A FEDERAL COURT, HIS INTEREST IN THE SUIT CAN BE SAID
NECESSARILY TO VARY ACCORDING TO THE CONSTITUTIONAL PROVISION UNDER
WHICH HE STATES HIS CLAIM. 

THE ABSENCE OF ANY CONNECTION BETWEEN THE COURT'S STANDARD FOR THE
DETERMINATION OF STANDING IS NOT MERELY A LOGICAL ELLIPSIS.  INSTEAD,
IT FOLLOWS Q,ITE RELENTLESSLY FROM THE FACT THAT, DESPITE THE COURT'S
APPARENT BELIEF, THE PLAINTIFFS IN THIS AND SIMILAR SUITS ARE NON
HOHFELDIAN, AND IT IS VERY NEARLY IMPOSSIBLE TO MEASURE SENSIBLY ANY
DIFFERENCES IN THE INTENSITY OF THEIR PERSONAL INTERESTS IN THEIR
SUITS.  THE COURT HAS THUS BEEN COMPELLED SIMPLY TO POSTULATE
SITUATIONS IN WHICH SUCH TAXPAYER-PLAINTIFFS WILL BE "DEEMED" TO HAVE
THE REQUISITE "PERSONAL STAKE AND INTEREST."  ANTE, AT 101.  THE
LOGICAL INADEQUACIES OF THE COURT'S CRITERIA ARE THUS A REFLECTION OF
THE DEFICIENCIES OF ITS ENTIRE POSITION.  THESE DEFICIENCIES WILL,
HOWEVER, APPEAR MORE PLAINLY FROM AN EXAMINATION OF THE COURT'S
TREATMENT OF THE ESTABLISHMENT CLAUSE. 

ALTHOUGH THE COURT DOES NOT ALTOGETHER EXPLAIN ITS POSITION, THE
ESSENCE OF ITS REASONING IS EVIDENTLY THAT A TAXPAYER'S CLAIM UNDER THE
ESTABLISHMENT CLAUSE IS "NOT MERELY ONE OF ULTRA VIRES," BUT ONE WHICH
INSTEAD ASSERTS "AN ABRIDGMENT OF INDIVIDUAL RELIGIOUS LIBERTY" AND A
"GOVERNMENTAL INFRINGEMENT OF INDIVIDUAL RIGHTS PROTECTED BY THE
CONSTITUTION."  CHOPER, THE ESTABLISHMENT CLAUSE AND AID TO PAROCHIAL
SCHOOLS, 56 CALIF.L.REV.  260, 276.  IT MUST FIRST BE EMPHASIZED THAT
THIS IS APPARENTLY NOT FOUNDED UPON ANY ASSERTED UNAVAILABILITY OF
OTHER PLAINTIFFS.  /12/  THE COURT'S POSITION IS INSTEAD THAT, BECAUSE
OF THE ESTABLISHMENT CLAUSE'S HISTORICAL PURPOSES, TAXPAYERS RETAIN
RIGHTS UNDER IT QUITE DIFFERENT FROM THOSE HELD BY THEM UNDER OTHER
CONSTITUTIONAL PROVISIONS. 

THE DIFFICULTIES WITH THIS POSITION ARE SEVERAL.  FIRST, WE HAVE
RECENTLY BEEN REMINDED THAT THE HISTORICAL PURPOSES OF THE RELIGIOUS
CLAUSES OF THE FIRST AMENDMENT ARE SIGNIFICANTLY MORE OBSCURE AND
COMPLEX THAN THIS COURT HAS HERETOFORE ACKNOWLEDGED.  /13/  CAREFUL
STUDENTS OF THE HISTORY OF THE ESTABLISHMENT CLAUSE HAVE FOUND THAT "IT
IS IMPOSSIBLE TO GIVE A DOGMATIC INTERPRETATION OF THE FIRST AMENDMENT,
AND TO STATE WITH ANY ACCURACY THE INTENTION OF MEN WHO FRAMED IT.  . .
. "  /14/  ABOVE ALL, THE EVIDENCE SEEMS CLEAR THAT THE FIRST AMENDMENT
WAS NOT INTENDED SIMPLY TO ENACT THE TERMS OF MADISON'S MEMORIAL AND
REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS.  /15/  I DO NOT SUGGEST
THAT HISTORY IS WITHOUT RELEVANCE TO THESE QUESTIONS, OR THAT THE USE
OF FEDERAL FUNDS FOR RELIGIOUS PURPOSES WAS NOT A FORM OF ESTABLISHMENT
THAT MANY IN THE 18TH CENTURY WOULD HAVE FOUND OBJECTIONABLE.  I SAY
SIMPLY THAT, GIVEN THE ULTIMATE OBSCURITY OF THE ESTABLISHMENT CLAUSE'S
HISTORICAL PURPOSES, IT IS INAPPROPRIATE FOR THIS COURT TO DRAW
FUNDAMENTAL DISTINCTIONS AMONG THE SEVERAL CONSTITUTIONAL COMMANDS UPON
THE SUPPOSED AUTHORITY OF ISOLATED DICTA EXTRACTED FROM THE CLAUSE'S
COMPLEX HISTORY.  IN PARTICULAR, I HAVE NOT FOUND, AND THE OPINION OF
THE COURT HAS NOT ADDUCED, HISTORICAL EVIDENCE THAT PROPERLY PERMITS
THE COURT TO DISTINGUISH, AS IT HAS HERE, AMONG THE ESTABLISHMENT
CLAUSE, THE TENTH AMENDMENT, AND THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT AS LIMITATIONS UPON CONGRESS' TAXING AND SPENDING POWERS. 
/16/ 

THE COURT'S POSITION IS EQUALLY PRECARIOUS IF IT IS ASSUMED THAT ITS
PREMISE IS THAT THE ESTABLISHMENT CLAUSE IS IN SOME UNCERTAIN FASHION A
MORE "SPECIFIC" LIMITATION UPON CONGRESS' POWERS THAN ARE THE VARIOUS
OTHER CONSTITUTIONAL COMMANDS.  IT IS OBVIOUS, FIRST, THAT ONLY IN SOME
PICKWICKIAN SENSE ARE ANY OF THE PROVISIONS WITH WHICH THE COURT IS
CONCERNED "SPECIFICALLY)"  LIMITATIONS UPON SPENDING, FOR THEY CONTAIN
NOTHING THAT IS EXPRESSLY DIRECTED AT THE EXPENDITURE OF PUBLIC FUNDS. 
THE SPECIFICITY TO WHICH THE COURT REPEATEDLY REFERS MUST THEREFORE
ARISE, NOT FROM THE PROVISIONS' LANGUAGE, BUT FROM SOMETHING IMPLICIT
IN THEIR PURPOSES.  BUT THIS COURT HAS OFTEN EMPHASIZED THAT CONGRESS'
POWERS TO SPEND ARE COTERMINOUS WITH THE PURPOSES FOR WHICH, AND
METHODS BY WHICH, IT MAY ACT, AND THAT THE VARIOUS CONSTITUTIONAL
COMMANDS APPLICABLE TO THE CENTRAL GOVERNMENT, INCLUDING THOSE IMPLICIT
BOTH IN THE TENTH AMENDMENT AND IN THE GENERAL WELFARE CLAUSE, THUS
OPERATE AS LIMITATIONS UPON SPENDING.  SEE UNITED STATES V. BUTLER, 297
U.S. 1.  AND SEE, E.G., VEAZIE BANK V. FENNO, 8 WALL.  533, 541; LOAN
ASSOCIATION V. TOPEKA, 20 WALL.  655, 664; THOMPSON V. CONSOLIDATED GAS
CO., 300 U.S. 55, 80; CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495;
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 6.  COMPARE STEWARD MACHINE
CO. V. DAVIS, 301 U.S. 548; HELVERING V. DAVIS, 301 U.S. 619.  I CAN
ATTACH NO CONSTITUTIONAL SIGNIFICANCE TO THE VARIOUS DEGREES OF
SPECIFICITY WITH WHICH THESE LIMITATIONS APPEAR IN THE TERMS OR HISTORY
OF THE CONSTITUTION.  IF THE COURT ACCEPTS THE PROPOSITION, AS I DO,
THAT THE NUMBER AND SCOPE OF PUBLIC ACTIONS SHOULD BE RESTRICTED, THERE
ARE, AS I SHALL SHOW, METHODS MORE APPROPRIATE, AND MORE NEARLY
PERMANENT, THAN THE CREATION OF AN AMORPHOUS CATEGORY OF CONSTITUTIONAL
PROVISIONS THAT THE COURT HAS DEEMED, WITHOUT ADEQUATE FOUNDATION,
"SPECIFIC LIMITATIONS" UPON CONGRESS' SPENDING POWERS. 

EVEN IF IT IS ASSUMED THAT SUCH DISTINCTIONS MAY PROPERLY BE DRAWN,
IT DOES NOT FOLLOW THAT FEDERAL TAXPAYERS HOLD ANY "PERSONAL
CONSTITUTIONAL RIGHT" SUCH THAT THEY MAY EACH CONTEST THE VALIDITY
UNDER THE ESTABLISHMENT CLAUSE OF ALL FEDERAL EXPENDITURES.  THE
DIFFICULTY, WITH WHICH THE COURT NEVER COMES TO GRIPS, IS THAT
TAXPAYERS' SUITS UNDER THE ESTABLISHMENT CALUSE ARE NOT IN THESE
CIRCUMSTANCES MEANINGFULLY DIFFERENT FROM OTHER PUBLIC ACTIONS.  IF
THIS CASE INVOLVED A TAX SPECIFICALLY DESIGNED FOR THE SUPPORT OF
RELIGION, AS WAS THE VIRGINIA TAX OPPOSED BY MADISON IN HIS MEMORIAL
AND REMONSTRANCE, /17/  I WOULD AGREE THAT TAXPAYERS HAVE RIGHTS UNDER
THE RELIGIOUS CLAUSES OF THE FIRST AMENDMENT THAT WOULD PERMIT THEM
STANDING TO CHALLENGE THE TAX'S VALIDITY IN THE FEDERAL COURTS.  BUT
THIS IS NOT SUCH A CASE, AND APPELLANTS CHALLENGE AN EXPENDITURE, NOT A
TAX.  WHERE NO SUCH TAX IS INVOLVED, A TAXPAYER'S COMPLAINT CAN CONSIST
ONLY OF AN ALLEGATION THAT PUBLIC FUNDS HAVE BEEN, OR SHORTLY WILL BE,
EXPENDED FOR PURPOSES INCONSISTENT WITH THE CONSTITUTION.  THE TAXPAYER
CANNOT ASK THE RETURN OF ANY PORTION OF HIS PREVIOUS TAX PAYMENTS,
CANNOT PREVENT THE COLLECTION OF ANY EXISTING TAX DEBT, AND CANNOT
DEMAND AN ADJUDICATION OF THE PROPRIETY OF ANY PARTICULAR LEVEL OF
TAXATION.  HIS TAX PAYMENTS ARE RECEIVED FOR THE GENERAL PURPOSES OF
THE UNITED STATES, AND ARE, UPON PROPER RECEIPT, LOST IN THE GENERAL
REVENUES.  COMPARE STEWARD MACHINE CO. V. DAVIS, SUPRA, AT 585.  THE
INTERESTS HE REPRESENTS, AND THE RIGHTS HE ESPOUSES, ARE, AS THEY ARE
IN ALL PUBLIC ACTIONS, THOSE HELD IN COMMON BY ALL CITIZENS.  TO
DESCRIBE THOSE RIGHTS AND INTERESTS AS PERSONAL, AND TO INTIMATE THAT
THEY ARE IN SOME UNSPECIFIED FASHION TO BE DIFFERENTIATED FROM THOSE OF
THE GENERAL PUBLIC, REDUCES CONSTITUTIONAL STANDING TO A WORD GAME
PLAYED BY SECRET RULES.  /18/     APPARENTLY THE COURT, HAVING
SUCCESSFULLY CIRCUMNAVIGATED THE ISSUE, HAS MERELY RETURNED TO THE
PROPOSITION FROM WHICH IT BEGAN.  A LITIGANT, IT SEEMS, WILL HAVE
STANDING IF HE IS "DEEMED" TO HAVE THE REQUISITE INTERESTS, AND "IF YOU
. . . HAVE STANDING, THEN YOU CAN BE CONFIDENT YOU ARE" SUITABLY
INTERESTED.  BROWN, QUIS CUSTODIET IPSOS CUSTODIES?-- THE SCHOOL-PRAYER
CASES, 1963 SUP.CT.REV.  1, 22. 

        III. 

IT SEEMS TO ME CLEAR THAT PUBLIC ACTIONS, WHATEVER THE
CONSTITUTIONAL PROVISIONS ON WHICH THEY ARE PREMISED, MAY INVOLVE
IMPORTANT HAZARDS FOR THE CONTINUED EFFECTIVENESS OF THE FEDERAL
JUDICIARY.  ALTHOUGH I BELIEVE SUCH ACTIONS TO BE WITHIN THE
JURISDICTION CONFERRED UPON THE FEDERAL COURTS BY ARTICLE III OF THE
CONSTITUTION, THERE SURELY CAN BE LITTLE DOUBT THAT THEY STRAIN THE
JUDICIAL FUNCTION AND PRESS TO THE LIMIT JUDICIAL AUTHORITY.  THERE IS
EVERY REASON TO FEAR THAT UNRESTRICTED PUBLIC ACTIONS MIGHT WELL ALTER
THE ALLOCATION OF AUTHORITY AMONG THE THREE BRANCHES OF THE FEDERAL
GOVERNMENT.  IT IS NOT, I SUBMIT, ENOUGH TO SAY THAT THE PRESENT
MEMBERS OF THE COURT WOULD NOT SEIZE THESE OPPORTUNITIES FOR ABUSE, FOR
SUCH ACTIONS WOULD, EVEN WITHOUT CONSCIOUS ABUSE, GO FAR TOWARD THE
FINAL TRANSFORMATION OF THIS COURT INTO THE COUNCIL OF REVISION WHICH,
DESPITE MADISON'S SUPPORT, WAS REJECTED BY THE CONSTITUTIONAL
CONVENTION.  /19/  I DO NOT DOUBT THAT THERE MUST BE "SOME EFFECTUAL
POWER IN THE GOVERNMENT TO RESTRAIN OR CORRECT THE INFRACTIONS"  /20/
OF THE CONSTITUTION'S SEVERAL COMMANDS, BUT NEITHER CAN I SUPPOSE THAT
SUCH POWER RESIDES ONLY IN THE FEDERAL COURTS.  WE MUST AS JUDGES
RECALL THAT, AS MR. JUSTICE HOLMES WISELY OBSERVED, THE OTHER BRANCHES
OF THE GOVERNMENT "ARE ULTIMATE GUARDIANS OF THE LIBERTIES AND WELFARE
OF THE PEOPLE IN QUITE AS GREAT A DEGREE AS THE COURTS."  MISSOURI,
KANSAS & TEXAS R. CO. V. MAY, 194 U.S. 267, 270.  THE POWERS OF THE
FEDERAL JUDICIARY WILL BE ADEQUATE FOR THE GREAT BURDENS PLACED UPON
THEM ONLY IF THEY ARE EMPLOYED PRUDENTLY, WITH RECOGNITION OF THE
STRENGTHS AS WELL AS THE HAZARDS THAT GO WITH OUR KIND OF
REPRESENTATIVE GOVERNMENT. 

PRESUMABLY THE COURT RECOGNIZES AT LEAST CERTAIN OF THESE HAZARDS,
ELSE IT WOULD NOT HAVE TROUBLED TO IMPOSE LIMITATIONS UPON THE
SITUATIONS IN WHICH, AND PURPOSES FOR WHICH, SUCH SUITS MAY BE
BROUGHT.  NONETHELESS, THE LIMITATIONS ADOPTED BY THE COURT ARE, AS I
HAVE ENDEAVORED TO INDICATE, WHOLLY UNTENABLE.  THIS IS THE MORE
UNFORTUNATE BECAUSE THERE IS AVAILABLE A RESOLUTION OF THIS PROBLEM
THAT ENTIRELY SATISFIES THE DEMANDS OF THE PRINCIPLE OF SEPARATION OF
POWERS.  THIS COURT HAS PREVIOUSLY HELD THAT INDIVIDUAL LITIGANTS HAVE
STANDING TO REPRESENT THE PUBLIC INTEREST, DESPITE THEIR LACK OF
ECONOMIC OR OTHER PERSONAL INTERESTS, IF CONGRESS HAS APPROPRIATELY
AUTHORIZED SUCH SUITS.  SEE ESPECIALLY OKLAHOMA V. CIVIL SERVICE
COMM'N, 330 U.S. 127, 137-139.  COMPARE PERKINS V. LUKENS STEEL CO.,
310 U.S. 113, 125-127.  I WOULD ADHERE TO THAT PRINCIPLE.  /21/  ANY
HAZARDS TO THE PROPER ALLOCATION OF AUTHORITY AMONG THE THREE BRANCHES
OF THE GOVERNMENT WOULD BE SUBSTANTIALLY DIMINISHED IF PUBLIC ACTIONS
HAD BEEN PERTINENTLY AUTHORIZED BY CONGRESS AND THE PRESIDENT.  I
APPRECIATE THAT THIS COURT DOES NOT ORDINARILY AWAIT THE MANDATE OF
OTHER BRANCHES OF THE GOVERNMENT, BUT IT SEEMS TO ME THAT THE
EXTRAORDINARY CHARACTER OF PUBLIC ACTIONS, AND OF THE MISCHIEVOUS, IF
NOT DANGEROUS, CONSEQUENCES THEY INVOLVE FOR THE PROPER FUNCTIONING OF
OUR CONSTITUTIONAL SYSTEM, AND IN PARTICULAR OF THE FEDERAL COURTS,
MAKES SUCH JUDICIAL FORBEARANCE THE PART OF WISDOM.  /22/  IT MUST BE
EMPHASIZED THAT THE IMPLICATIONS OF THESE QUESTIONS OF JUDICIAL POLICY
ARE OF FUNDAMENTAL SIGNIFICANCE FOR THE OTHER BRANCHES OF THE FEDERAL
GOVERNMENT. 

SUCH A RULE COULD READILY BE APPLIED TO THIS CASE.  ALTHOUGH VARIOUS
EFFORTS HAVE BEEN MADE IN CONGRESS TO AUTHORIZE PUBLIC ACTIONS TO
CONTEST THE VALIDITY OF FEDERAL EXPENDITURES IN AID OF RELIGIOUSLY
AFFILIATED SCHOOLS AND OTHER INSTITUTIONS, NO SUCH AUTHORIZATION HAS
YET BEEN GIVEN.  /23/ 

THIS DOES NOT MEAN THAT WE WOULD, UNDER SUCH A RULE, BE ENABLED TO
AVOID OUR CONSTITUTIONAL RESPONSIBILITIES, OR THAT WE WOULD CONFINE TO
LIMBO THE FIRST AMENDMENT OR ANY OTHER CONSTITUTIONAL COMMAND.  THE
QUESTION HERE IS NOT, DESPITE THE COURT'S UNARTICULATED PREMISE,
WHETHER THE RELIGIOUS CLAUSES OF THE FIRST AMENDMENT ARE HEREAFTER TO
BE ENFORCED BY THE FEDERAL COURTS; THE ISSUE IS SIMPLY WHETHER
PLAINTIFFS OF AN ADDITIONAL CATEGORY, HERETOFORE EXCLUDED FROM THOSE
COURTS, ARE TO BE PERMITTED TO MAINTAIN SUITS.  THE RECENT HISTORY OF
THIS COURT IS REPLETE WITH ILLUSTRATIONS, INCLUDING EVEN ONE ANNOUNCED
TODAY (SUPRA, AT N. 12), THAT QUESTIONS INVOLVING THE RELIGIOUS CLAUSES
WILL NOT, IF FEDERAL TAXPAYERS ARE PREVENTED FROM CONTESTING FEDERAL
EXPENDITURES, BE LEFT "UNACKNOWLEDGED, UNRESOLVED, AND UNDECIDED." 

ACCORDINGLY, FOR THE REASONS CONTAINED IN THIS OPINION, I WOULD AFFIRM
THE JUDGMENT OF THE DISTRICT COURT. 

/1/  SEE, E.G., DAVIS, STANDING TO CHALLENGE GOVERNMENTAL ACTION, 39
MINN.L.REV.  353; L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION
483-495 (1965). 

/2/  IN PARTICULAR, I AGREE, ESSENTIALLY FOR THE REASONS STATED BY
THE COURT, THAT WE DO NOT LACK JURISDICTION UNDER 28 U.S.C. 1253 TO
CONSIDER THE JUDGMENT OF THE THREE-JUDGE DISTRICT COURT. 

/3/  I PUT ASIDE, FOR THE MOMENT, THE SUGGESTION THAT A TAXPAYER'S
RIGHTS UNDER THE ESTABLISHMENT CLAUSE ARE MORE "PERSONAL" THAN THEY ARE
UNDER ANY OTHER CONSTITUTIONAL PROVISION. 

/4/  SEE GENERALLY COMMENT, TAXPAYER'S SUITS:  A SURVEY AND SUMMARY,
69 YALE L.J. 895, 905-906. 

/5/  THE PHRASE IS PROFESSOR JAFFE'S, ADOPTED, OF COURSE, FROM W.
HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS (1923).  I HAVE HERE EMPLOYED
THE PHRASES "HOHFELDIAN" AND "NON-HOHFELDIAN" PLAINTIFFS TO MARK THE
DISTINCTION BETWEEN THE PERSONAL AND PROPRIETARY INTERESTS OF THE
TRADITIONAL PLAINTIFF, AND THE REPRESENTATIVE AND PUBLIC INTERESTS OF
THE PLAINTIFF IN A PUBLIC ACTION.  I AM AWARE THAT WE ARE CONFRONTED
HERE BY A SPECTRUM OF INTERESTS OF VARYING INTENSITIES, BUT THE
DISTINCTION IS SUFFICIENTLY ACCURATE, AND CONVENIENT, TO WARRANT ITS
USE AT LEAST FOR PURPOSES OF DISCUSSION. 

/6/  CF. ASSOCIATED INDUSTRIES V. ICKES, 134 F.2D 694, 704; READE V.
EWING, 205 F.2D 630, 632. 

/7/ L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 483 (1965). 

/8/  I AGREE THAT IMPLICIT IN THIS QUESTION IS THE BELIEF THAT THE
FEDERAL COURTS MAY DECLINE TO ACCEPT FOR ADJUDICATION CASES OR
QUESTIONS THAT, ALTHOUGH OTHERWISE WITHIN THE PERIMETER OF THEIR
CONSTITUTIONAL JURISDICTION, ARE APPROPRIATELY THOUGHT TO BE UNSUITABLE
AT LEAST FOR IMMEDIATE JUDICIAL RESOLUTION.  COMPARE ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 345-348 (CONCURRING OPINION);
H. WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW 9-15 (1961); AND
BICKEL, FOREWARD:  THE PASSIVE VIRTUES, THE SUPREME COURT, 1960 TERM,
75 HARV.L.REV.  40, 45-47 (1961). 

/9/  I MUST NOTE AT THE OUTSET THAT I CANNOT DETERMINE WITH ANY
CERTAINTY THE COURT'S INTENTIONS WITH REGARD TO THIS FIRST CRITERION. 
ITS USE OF DOREMUS V. BOARD OF EDUCATION, 342 U.S. 429, AS AN ANALOGUE
PERHAPS SUGGESTS THAT IT INTENDS TO EXCLUDE ONLY THOSE CASES IN WHICH
THERE ARE VIRTUALLY NO PUBLIC EXPENDITURES.  SEE, E.G., HOWARD V. CITY
OF BOULDER, 132 COLO. 401, 290 P.2D 237.  ON THE OTHER HAND, THE COURT
ALSO EMPHASIZES THAT THE CONTESTED PROGRAMS MAY NOT BE "ESSENTIALLY
REGULATORY" PROGRAMS, AND THAT THE STATUTE CHALLENGED HERE "INVOLVES A
SUBSTANTIAL EXPENDITURE OF FEDERAL TAX FUNDS."  ANTE, AT 102, 103. 
PRESUMABLY THIS MEANS THAT THE COURT'S STANDING DOCTRINE ALSO EXCLUDES
ANY PROGRAM IN WHICH THE EXPENDITURES ARE "INSUBSTANTIAL" OR WHICH
CANNOT BE CHARACTERIZED AS A "SPENDING" PROGRAM. 

/10/  I AM AWARE THAT THE ATTACK UPON THE SECOND PROGRAM WOULD
PRESUMABLY BY PREMISED, AT LEAST IN LARGE PART, UPON THE FREE EXERCISE
CLAUSE, AND THAT THE COURT DOES NOT TODAY HOLD THAT THAT CLAUSE IS
WITHIN ITS STANDING DOCTRINE.  I CANNOT, HOWEVER, SEE ANY MEANINGFUL
DISTINCTION FOR THESE PURPOSES, EVEN UNDER THE COURT'S REASONING,
BETWEEN THE TWO RELIGIOUS CLAUSES. 

/11/  IT SHOULD BE EMPHASIZED THAT THE COURT FINDS IT UNNECESSARY TO
EXAMINE THE HISTORY OF THE DUE PROCESS CLAUSE TO DETERMINE WHETHER IT
WAS INTENDED AS A "SPECIFIC LIMITATION" UPON CONGRESS' SPENDING AND
TAXING POWERS.  NOR DOES THE COURT PAUSE TO EXAMINE THE PURPOSES OF THE
TENTH AMENDMENT, ANOTHER OF THE PREMISES OF THE CONSTITUTIONAL CLAIMS
IN FROTHINGHAM.  BUT SEE GIVVONS V. OGDEN, 9 WHEAT.  1, 199; VEAZIE
BANK V. FENNO, 8 WALL.  533, 541; UNITED STATES V. BUTLER, 297 U.S. 1. 
AND COMPARE EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 6. 

/12/  THE COURT DOES MAKE ONE REFERENCE TO THE AVAILABILITY VEL NON
OF OTHER PLAINTIFFS.  IT INDICATES THAT WHERE A FEDERAL STATUTE IS
DIRECTED AT A SPECIFIED CLASS, "THE PROPER PARTY EMPHASIS IN THE
FEDERAL STANDING DOCTRINE WOULD REQUIRE THAT STANDING BE LIMITED TO THE
TAXPAYERS WITHIN THE AFFECTED CLASS."  ANTE, AT 104, N. 25.  ASSUMING
ARGUENDO THE EXISTENCE OF SUCH A FEDERAL "BEST-PLAINTIFF" RULE, IT IS
DIFFICULT TO SEE WHY THIS RULE WOULD NOT ALTOGETHER EXCLUDE TAXPAYERS
AS PLAINTIFFS UNDER THE ESTABLISHMENT CLAUSE, SINCE THERE PLAINLY MAY
BE LITIGANTS UNDER THE CLAUSE WITH THE PERSONAL RIGHTS AND INTERESTS OF
HOHFELDIAN PLAINTIFFS.  SEE, E.G., BOARD OF EDUCATION V. ALLEN, DECIDED
TODAY, POST, P. 236. 

/13/  SEE, IN PARTICULAR, M. HOWE, THE GARDEN AND THE WILDERNESS 1
31 (1965); C. ANTIEAU, A. DOWNEY & E. ROBERTS, FREEDOM FROM FEDERAL
ESTABLISHMENT (1964).  NOT ALL MEMBERS OF THE COURT HAVE OF COURSE
IGNORED THE COMPLEXITIES OF THE CLAUSE'S HISTORY.  SEE ESPECIALLY
MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 238 (DISSENTING OPINION
OF REED, J.). 

/14/  ANTIEAU, DOWNEY & ROBERTS, SUPRA, AT 142.  SEE ALSO HOWE,
SUPRA, AT 10-12. 

/15/  SEE, IN PARTICULAR, ANTIEAU, DOWNEY & ROBERTS, SUPRA, AT 126
128, 144-146, 207-208.  AND SEE 1 ANNALS OF CONG. 730-731.  IT HAS
ELSEWHERE BEEN OBSERVED, I THINK PROPERLY, THAT "TO TREAT (MADISON'S
REMONSTRANCE) AS AUTHORITATIVELY INCORPORATED IN THE FIRST AMENDMENT IS
TO TAKE GROTESQUE LIBERTIES WITH THE SIMPLE LEGISLATIVE PROCESS, AND
EVEN MORE WITH THE COMPLES AND DIFFUSE PROCESS OF RATIFICATION OF AN
AMENDMENT BY THREE-FOURTHS OF THE STATES."  BROWN, QUIS CUSTODIET IPSOS
CUSTODES?-- THE SCHOOL-PRAYER CASES, 1963 SUP.CT.REV.  1, 8. 

/16/  I WILL OF COURSE GRANT THAT CLAIMS UNDER, FOR EXAMPLE, THE
TENTH AMENDMENT MAY PRESENT "GENERALIZED GRIEVANCES ABOUT THE CONDUCT
OF GOVERNMENT OR THE ALLOCATION OF POWER IN THE FEDERAL SYSTEM."  ANTE,
AT 106.  I WILL ALSO GRANT THAT IT WOULD BE WELL IF SUCH QUESTIONS
COULD BE AVOIDED BY THE FEDERAL COURTS.  UNFORTUNATELY, I CANNOT SEE
HOW THESE CONSIDERATIONS ARE RELEVANT UNDER THE COURT'S PRINCIPAL
CRITERION, WHICH I UNDERSTAND TO BE MERELY WHETHER ANY GIVEN
CONSTITUTIONAL PROVISION IS, OR IS NOT, A LIMITATION UPON CONGRESS'
SPENDING POWERS.  IT IS DIFFICULT TO SEE WHAT THERE IS IN THE FACT THAT
A CONSTITUTIONAL PROVISION IS HELD TO BE SUCH A LIMITATION THAT COULD
SENSIBLY GIVE THE COURT "CONFIDENCE" ABOUT THE FASHION IN WHICH A GIVEN
PLAINTIFF WILL PRESENT A GIVEN ISSUE. 

/17/  THE BILL WAS INTENDED TO ESTABLISH "A PROVISION FOR TEACHERS
OF THE CHRISTIAN RELIGION."  IT AND THE MEMORIAL AND REMONSTRANCE ARE
REPRINTED IN EVERSON V. BOARD OF EDUCATION, SUPRA, AT 63-74. 

/18/  I HAVE EQUAL DIFFICULTY WITH THE ARGUMENT THAT THE RELIGIOUS
CLAUSES OF THE FIRST AMENDMENT CREATE A "PERSONAL CONSTITUTIONAL
RIGHT," HELD BY ALL CITIZENS, SUCH THAT ANY CITIZEN MAY, UNDER THOSE
CLAUSES, CONTEST THE CONSTITUTIONALITY OF FEDERAL EXPENDITURES.  THE
ESSENCE OF THE ARGUMENT WOULD PRESUMABLY BE THAT FREEDOM FROM
ESTABLISHMENT IS A RIGHT THAT INHERES IN EVERY CITIZEN, THUS ANY
CITIZEN SHOULD BE PERMITTED TO CHALLENGE ANY MEASURE THAT CONCEIVABLY
INVOLVES ESTABLISHMENT.  CERTAIN PROVISIONS OF THE CONSTITUTION, SO THE
ARGUMENT WOULD RUN, CREATE THE BASIC STRUCTURE OF OUR SOCIETY AND OF
ITS GOVERNMENT, AND ' ACCORDINGLY SHOULD BE ENFORCEABLE AT THE DEMAND
OF EVERY INDIVIDUAL.  UNLIKE THE POSITION TAKEN TODAY BY THE COURT,
SUCH A DOCTRINE OF STANDING WOULD AT LEAST BE INTERNALLY CONSISTENT,
BUT IT WOULD ALSO THREATEN THE PROPER FUNCTIONING BOTH OF THE FEDERAL
COURTS AND OF THE PRINCIPLE OF SEPARATION OF POWERS.  THE ESTABLISHMENT
CLAUSE IS, AFTER ALL, ONLY ONE OF MANY PROVISIONS OF THE CONSTITUTION
THAT MIGHT BE CHARACTERIZED IN THIS FASHION.  CERTAIN OF THESE
PROVISIONS, E.G., THE NINTH AND TENTH AMENDMENTS, WOULD PROVIDE THE
BASIS FOR CASES THAT, ABSENT A STANDING QUESTION, COULD NOT READILY BE
EXCLUDED FROM THE FEDERAL COURTS AS INVOLVING POLITICAL QUESTIONS, OR
AS OTHERWISE UNSUITABLE FOR ADJUDICATION UNDER THE PRINCIPLES
FORMULATED FOR THESE PURPOSES BY THE COURT.  COMPARE UNITED PUBLIC
WORKERS V. MITCHELL, 330 U.S. 75, 94-96; GRISWOLD V. CONNECTICUT, 381
U.S. 479.  INDEED, IT MIGHT EVEN BE URGED THAT THE NINTH AND TENTH
AMENDMENTS, SINCE THEY ARE LARGELY CONFIRMATORY OF RIGHTS CREATED
ELSEWHERE IN THE CONSTITUTION, WERE INTENDED TO DECLARE THE STANDING OF
INDIVIDUAL CITIZENS TO CONTEST THE VALIDITY OF GOVERNMENTAL
ACTIVITIES.  IT MAY, OF COURSE, ALSO BE ARGUED THAT THESE AMENDMENTS
ARE MERELY "TUBS) FOR THE WHALE," 1 W.CROSSKEY,POLITICS AND THE
CONSTITUTION 688 (1953); BUT LACKING SUCH AN ARGUMENT, ANY DOCTRINE OF
STANDING PREMISED UPON THE GENERALITY OR RELATIVE IMPORTANCE OF A
CONSTITUTIONAL COMMAND WOULD, I THINK, VERY SUBSTANTIALLY INCREASE THE
NUMBER OF SITUATIONS IN WHICH INDIVIDUAL CITIZENS COULD PRESENT FOR
ADJUDICATION "GENERALIZED GRIEVANCES ABOUT THE CONDUCT OF GOVERNMENT." 
I TAKE IT THAT THE COURT, APART FROM MY BROTHER DOUGLAS, AND I ARE
AGREED THAT ANY SUCH CONSEQUENCE WOULD BE EXCEEDINGLY UNDESIRABLE. 
/19/  SEE 1 M.FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787,
AT 21, 97-98, 108-110, 138-140 (1911); 2 FARRAND, ID.,AT 73-80. 

/20/  THE FEDERALIST NO. 80 (HAMILTON). 

/21/  MY PREMISE IS, AS I HAVE SUGGESTED, THAT NON-HOHFELDIAN
PLAINTIFFS AS SUCH ARE NOT EXCLUDED BY ARTICLE III FROM THE
JURISDICTION OF THE FEDERAL COURTS.  THE PROBLEM IS THEREFORE TO
DETERMINE IN WHAT SITUATIONS THEIR SUITS SHOULD BE PERMITTED, AND NOT
WHETHER A "STATUTE CONSTITUTIONALLY COULD AUTHORIZE A PERSON WHO SHOWS
NO CASE OR CONTROVERSY TO CALL ON THE COURTS.  . . . " SCRIPPS-HOWARD
RADIO V. COMM'N, 316 U.S. 4, 21 (DISSENTING OPINION).  I DO NOT, OF
COURSE, SUGGEST THAT CONGRESS' POWER TO AUTHORIZE SUITS BY SPECIFIED
CLASSES OF LITIGANTS IS WITHOUT CONSTITUTIONAL LIMITATION.  THIS COURT
HAS RECOGNIZED A PANOPLY OF RESTRICTIONS UPON THE ACTIONS THAT MAY
PROPERLY BE BROUGHT IN FEDERAL COURTS, OR REVIEWED BY THIS COURT AFTER
DECISION IN STATE COURTS.  IT IS ENOUGH NOW TO EMPHASIZE THAT I WOULD
NOT ABROGATE THESE RESTRICTIONS IN SITUATIONS IN WHICH CONGRESS HAS
AUTHORIZED A SUIT.  THE DIFFICULT CASE OF MUSKRAT V. UNITED STATES, 219
U.S. 346, DOES NOT REQUIRE MORE.  WHATEVER THE OTHER IMPLICATIONS OF
THAT CASE, IT IS ENOUGH TO NOTE THAT THERE THE UNITED STATES, AS
STATUTORY DEFENDANT, EVIDENTLY HAD "NO INTEREST ADVERSE TO THE
CLAIMANTS."  ID., AT 361. 

/22/  I AM AWARD THAT THERE IS A SECOND CATEGORY OF CASES IN WHICH
THE COURT HAS ENTERTAINED CLAIMS BY NON-HOHFELDIAN PLAINTIFFS:  SUITS
BROUGHT BY STATE OR LOCAL TAXPAYERS IN STATE COURTS TO VINDICATE
FEDERAL CONSTITUTIONAL CLAIMS.  A CERTAIN ANOMALY MAY BE THOUGHT TO
HAVE RESULTED FROM THE COURT'S CONSDIERATION OF SUCH CASES WHILE IT HAS
REFUSED SIMILAR SUITS BROUGHT BY FEDERAL TAXPAYERS IN THE FEDERAL
COURTS.  THIS ANOMALY, IF SUCH IT IS, WILL PRESUMABLY CONTINUE EVEN
UNDER THE STANDING DOCTRINE ANNOUNCED TODAY, SINCE WE ARE NOT TOLD THAT
THE STANDING RULES WILL HEREAFTER BE IDENTICAL FOR THE TWO CLASSES OF
TAXPAYERS.  ALTHOUGH THESE QUESTIONS ARE NOT NOW BEFORE THE COURT, I
THINK IT APPROPRIATE TO NOTE THAT ONE POSSIBLE SOLUTION WOULD BE TO
HOLD THAT STANDING TO RAISE FEDERAL QUESTIONS IS ITSELF A FEDERAL
QUESTION.  SEE FREUND, IN E. CAHN, SUPREME COURT AND SUPREME LAW 35
(1954).  THIS WOULD DEMAND PARTIAL RECONSIDERATION OF, FOR EXAMPLE,
DOREMUS V. BOARD OF EDUCATION, 342 U.S. 429.  CF. UNITED STATES V.
RAINES, 362 U.S. 17, 23, N. 3; CRAMP V. BOARD OF PUBLIC INSTRUCTION,
368 U.S. 278, 282; BAKER V. CARR, 369 U.S. 186, 204. 

/23/  THIS QUESTION WAS, HOWEVER, EXTENSIVELY DISCUSSED IN THE COURSE
OF THE DEBATES UPON THE ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965,
79 STAT. 27.  SEE, E.G., 111 CONG.REC.  5973, 6132, 7316-7318. 

LEO PFEFFER ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE BRIEFS
WERE DAVID I. ASHE, ERNEST FLEISCHMAN, AND ALAN H. LEVINE. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR APPELLEES.  WITH HIM
ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WEISL, ALAN S. ROSENTHAL,
AND ROBERT V. ZENER. 

SAM J. ERVIN, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR AMERICANS
FOR PUBLIC SCHOOLS ET AL., AS AMICI CURIAE, URGING REVERSAL. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY MELVIN J.
SYKES AND SANFORD JAY ROSEN FOR THE COUNCIL OF CHIEF STATE SCHOOL
OFFICERS ET AL.; BY HENRY C. CLAUSEN FOR UNITED AMERICANS FOR PUBLIC
SCHOOLS; BY NORMAN DORSEN AND CHARLES H. TUTTLE FOR THE NATIONAL
COUNCIL OF CHURCHES; BY FRANKLIN C. SALISBURY FOR PROTESTANTS AND OTHER
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, AND BY ARNOLD
FORSTER, EDWIN J. LUKAS, JOSEPH B. ROBISON, PAUL HARTMAN, AND SOL
RABKIN FOR THE AMERICAN JEWISH COMMITTEE ET AL. 

BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY J. ALBERT
WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION
OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS; BY JULIUS BERMAN AND
REUBEN E. GROSS FOR THE NATIONAL JEWISH COMMISSION ON LAW AND PUBLIC
AFFAIRS, AND BY HERBERT BROWNELL, THOMAS F. DALY, AND WILLIAM E.
MCCURDY, JR., FOR SPIRA ET AL.
..END :








PERMA MUFFLERS V. INT'L PARTS CORP., 392 U.S. 134 


       PERMA LIFE MUFFLERS, INC., ET AL. V. INTERNATIONAL PARTS

           CORP. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT. 

        NO. 733.  ARGUED APRIL 22-23, 1968.-- DECIDED JUNE 10,

           1968. 


PETITIONERS, DEALERS WHO HAD OPERATED "MIDAS MUFFLER SHOPS," BROUGHT
THIS ANTITRUST ACTION FOR TREBLE DAMAGES AGAINST RESPONDENT MIDAS,
INC., ITS PARENT CORPORATION (INTERNATIONAL), TWO OTHER SUBSIDIARIES,
AND CORPORATE OFFICERS AND AGENTS, CHARGING AN ILLEGAL CONSPIRACY IN
VIOLATION OF SEC. 1 OF THE SHERMAN ACT, AND VIOLATIONS OF SEC. 3 OF THE
CLAYTON ACT AND SEC. 2 AS AMENDED BY THE ROBINSON-PATMAN ACT. 
PETITIONERS ATTACKED PROVISIONS OF THE SALES AGREEMENTS WHICH THEY HAD
MADE WITH MIDAS INCLUDING THOSE WHICH BARRED PETITIONERS FROM
PURCHASING FROM OTHER SOURCES, PREVENTED THEM FROM SELLING OUTSIDE
DESIGNATED TERRITORIES, TIED MUFFLER SALES TO OTHER MIDAS-LINE
PRODUCTS, AND REQUIRED PETITIONERS TO SEEL AT FIXED RETAIL PRICES.  THE
DISTRICT COURT ENTERED SUMMARY JUDGMENT FOR RESPONDENTS.  THE COURT OF
APPEALS REVERSED THE JUDGMENT ON THE ROBINSON-PATMAN CLAIM BUT AFFIRMED
THE DISTRICT COURT'S RULING THAT PETITIONERS' OTHER CLAIMS WERE BARRED
BY THE DOCTRINE OF IN PARI DELICTO, NOTING THAT PETITIONERS, WITH FULL
KNOWLEDGE OF THE RESTRICTIONS, HAD ENTHUSIASTICALLY SOUGHT AND
ENORMOUSLY PROFITED FROM THE MIDAS FRANCHISES AND HAD SOUGHT ADDITIONAL
FRANCHISES.  THE COURT ALSO HELD THAT PETITIONERS' SHERMAN ACT CLAIM
WAS BARRED BECAUSE MIDAS AND INTERNATIONAL WERE PART OF A SINGLE
BUSINESS ENTITY AND THEREFORE ENTITLED TO COOPERATE WITHOUT CREATING AN
ILLEGAL CONSPIRACY.  HELD: 

1.  THERE IS NOTHING IN THE LANGUAGE OF THE ANTITRUST LAWS
INDICATING A CONGRESSIONAL INTENT THAT THE DOCTRINE OF IN PARI DELICTO
SHOULD CONSTITUTE A DEFENSE TO A PRIVATE ANTITRUST ACTION, AND SUCH
APPLICATION OF THE DOCTRINE WOULD UNDERMINE THE IMPORTANT FUNCTION
PERFORMED BY THE PRIVATE ANTITRUST ACTION IN ENFORCING THE ANTITRUST
LAWS.  PP. 138-140. 

2.  THE RECORD REFUTES RESPONDENTS' ARGUMENT THAT PETITIONERS
ACTIVELY PARTICIPATED IN FORMULATING THE RESTRICTIVE PLAN AND
ENCOURAGED ITS CONTINUATION.  PP. 140-141. 

3.  COMMON OWNERSHIP DOES NOT RELIEVE SEPARATE CORPORATE ENTITIES OF
THE OBLIGATIONS WHICH THE ANTITRUST LAWS IMPOSE; AND IN ANY EVENT EACH
PETITIONER CAN CHARGE A COMBINATION BETWEEN MIDAS AND HIMSELF OR OTHER
ACQUIESCING FRANCHISEES.  PP. 141-142. 

376 F.2D 692, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.  THE PRINCIPAL
QUESTION PRESENTED IS WHETHER THE PLAINTIFFS IN THIS PRIVATE ANTITRUST
ACTION WERE BARRED FROM RECOVERY BY A DOCTRINE KNOWN BY THE LATIN
PHRASE IN PARI DELICTO, WHICH LITERALLY MEANS "OF EQUAL FAULT."  THE
PLAINTIFFS, PETITIONERS HERE, WERE ALL DEALERS WHO HAD OPERATED "MIDAS
MUFFLER SHOPS" UNDER SALES AGREEMENTS GRANTED BY RESPONDENT MIDAS, INC.
THEIR COMPLAINT CHARGED THAT MIDAS HAD ENTERED INTO A CONSPIRACY WITH
THE OTHER NAMED DEFENDANTS-- ITS PARENT CORPORATION INTERNATIONAL PARTS
CORP., TWO OTHER SUBSIDIARIES, AND SIX INDIVIDUAL DEFENDANTS WHO WERE
OFFICERS OR AGENTS OF THE CORPORATIONS-- TO RESTRAIN AND SUBSTANTIALLY
LESSEN COMPETITION IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT /1/  AND
SEC. 3 OF THE CLAYTON ACT.  /2/  THEY ALSO CHARGED THAT THE DEFENDANTS
HAD VIOLATED SEC. 2(A) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON
PATMAN ACT, /3/  BY GRANTING DISCRIMINATIONS IN PRICES AND SERVICES TO
SOME OF THEIR CUSTOMERS WITHOUT OFFERING THE SAME ADVANTAGES TO THE
PLAINTIFFS.  THE DISTRICT COURT ENTERED SUMMARY JUDGMENT FOR
RESPONDENTS WITH RESPECT TO ALL OF PETITIONERS' CLAIMS.  ON APPEAL THE
COURT OF APPEALS REVERSED THE JUDGMENT FOR RESPONDENTS ON THE ROBINSON
PATMAN CLAIM BUT, OVER JUDGE CUMMINGS' DISSENT, AFFIRMED THE DISTRICT
COURT'S RULING THAT THE OTHER CLAIMS WERE BARRED BY THE DOCTINE OF IN
PARI DELICTO.  THE COURT ALSO HELD THAT PETITIONERS'  SHERMAN ACT CLAIM
WAS BARRED BECAUSE MIDAS AND INTERNATIONAL, WHILE FUNCTIONING AS
SEPARATE CORPORATIONS, HAD A COMMON OWNERSHIP AND THEREFORE COULD
COOPERATE WITHOUT CREATING AN ILLEGAL CONSPIRACY.  /4/  376 F.2D 692
(1967).  BECAUSE THESE RULINGS BY THE COURT OF APPEALS SEEMED TO
THREATEN THE EFFECTIVENESS OF THE PRIVATE ACTION AS A VITAL MEANS FOR
ENFORCING THE ANTITRUST POLICY OF THE UNITED STATES, WE GRANTED
CERTIORARI.  389 U.S. 1034 (1968).  FOR REASONS TO BE STATED, WE
REVERSE. 

THE ECONOMIC ARRANGEMENTS THAT LED TO THIS LAWSUIT HAVE A LONG
HISTORY.  RESPONDENT INTERNATIONAL PARTS HAS BEEN IN THE BUSINESS OF
MANUFACTURING AUTOMOBILE MUFFLERS AND OTHER EXHAUST SYSTEM PARTS SINCE
1938.  IN 1955 THE OWNERS OF INTERNATIONAL INITIATED A DETAILED PLAN
FOR PROMOTING THE SALE OF MUFFLERS BY EXTENSIVELY ADVERTISING THE
"MIDAS" TRADE NAME AND ESTABLISHING A NATIONWIDE CHAIN OF DEALERS WHO
WOULD SPECIALIZE IN SELLING EXHAUST SYSTEM EQUIPMENT.  EACH PROSPECTIVE
DEALER WAS OFFERED A SALES AGREEMENT PREPARED BY MIDAS, INC., A WHOLLY
OWNED SUBSIDIARY OF INTERNATIONAL.  THE AGREEMENT OBLIGATED THE DEALER
TO PURCHASE ALL HIS MUFFLERS FROM MIDAS, TO HONOR THE MIDAS GUARANTEE
ON MUFFLERS SOLD BY ANY DEALER, AND TO SELL THE MUFFLERS AT RESALE
PRICES FIXED BY MIDAS AND AT LOCATIONS SPECIFIED IN THE AGREEMENT.  THE
DEALERS WERE ALSO OBLIGATED TO PURCHASE ALL THEIR EXHAUST SYSTEM PARTS
FROM MIDAS, TO CARRY THE COMPLETE LINE OF MIDAS PRODUCTS, AND IN
GENERAL TO REFRAIN FROM DEALING WITH ANY OF THE MIDAS' COMPETITORS.  IN
RETURN MIDAS PROMISED TO UNDERWRITE THE COST OF THE MUFFLER GUARANTEE
AND GAVE THE DEALER PERMISSION TO USE THE REGISTERED TRADEMARK "MIDAS"
AND THE SERVICE MARK "MIDAS MUFFLER SHOPS."  THE DEALER WAS ALSO
GRANTED THE EXCLUSIVE RIGHT TO SELL "MIDAS" PRODUCTS WITHIN HIS DEFINED
TERRITORY.  HE WAS NOT REQUIRED TO PAY A FRANCHISE FEE OR TO PURCHASE
OF LEASE SUBSTANTIAL CAPITAL EQUIPMENT FROM MIDAS, AND THE AGREEMENT
WAS CANCELABLE BY EITHER PARTY ON 30 DAYS' NOTICE. 

PETITIONERS' COMPLAINT CHALLENGED AS ILLEGAL RESTRAINTS OF TRADE
NUMEROUS PROVISIONS OF THE AGREEMENTS, SUCH AS THE TERMS BARRING THEM
FROM PURCHASING FROM OTHER SOURCES OF SUPPLY, PREVENTING THEM FROM
SELLING OUTSIDE THE DESIGNATED TERRITORY, TYING THE SALE OF MUFFLERS TO
THE SALE OF OTHER PRODUCTS IN THE MIDAS LINE, AND REQUIRING THEM TO
SELL AT FIXED RETAIL PRICES.  PETITIONERS ALLEGED THAT THEY HAD OFTEN
REQUESTED MIDAS TO ELIMINATE THESE RESTRICTIONS BUT THAT MIDAS HAD
REFUSED AND HAD THREATENED TO TERMINATE THEIR AGREEMENTS IF THEY FAILED
TO COMPLY.  FINALLY THEY ALLEGED THAT ONE OF THE PLAINTIFFS HAD HAD HIS
AGREEMENT CANCELED BY MIDAS FOR PURCHASING EXHAUST PARTS FROM A MIDAS
COMPETITOR, AND THAT THE OTHER PLAINTIFF DEALERS HAD THEMSELVES
CANCELED THEIR AGREEMENTS.  ALL THE PLAINTIFFS CLAIMED TREBLE DAMAGES
FOR THE MONETARY LOSS THEY HAD SUFFERED FROM HAVING TO ABIDE BY THE
RESTRICTIVE PROVISIONS. 

THE COURT OF APPEALS, AGREEING WITH THE DISTRICT COURT, HELD THE
SUIT BARRED BECAUSE PETITIONERS WERE IN PARI DELICTO.  THE COURT NOTED
THAT EACH OF THE PETITIONERS HAD ENTHUSIASTICALLY SOUGHT TO ACQUIRE A
MIDAS FRANCHISE WITH FULL KNOWLEDGE OF THESE PROVISIONS AND HAD
"SOLEMNLY SUBSCRIBED" TO THE AGREEMENT CONTAINING THE RESTRICTIVE
TERMS.  PETITIONERS HAD ALL MADE ENORMOUS PROFITS AS MIDAS DEALERS, HAD
EAGERLY SOUGHT TO ACQUIRE ADDITIONAL FRANCHISES, AND HAD VOLUNTARILY
ENTERED INTO ADDITIONAL FRANCHISE AGREEMENTS, ALL WHILE FULLY AWARE OF
THE RESTRICTIONS THEY NOW CHALLENGE.  UNDER THESE CIRCUMSTANCES, THE
COURT OF APPEALS CONCLUDED, "(IT WOULD BE DIFFICULT TO VISUALIZE A CASE
MORE APPROPRIATE FOR THE APPLICATION OF THE PARI DELICTO DOCTRINE." 
376 F.2D, AT 699. 

WE FIND OURSELVES IN COMPLETE DISAGREEMENT WITH THE COURT OF
APPEALS.  THERE IS NOTHING IN THE LANGUAGE OF THE ANTITRUST ACTS WHICH
INDICATES THAT CONGRESS WANTED TO MAKE THE COMMON-LAW IN PARI DELICTO
DOCTRINE A DEFENSE TO TREBLE-DAMAGE ACTIONS, AND TEH FACTS OF THIS CASE
SUGGEST NO BASIS FOR APPLYING SUCH A DOCTRINE EVEN IF IT DID EXIST. 
ALTHOUGH IN PARI DELICTO LITERALLY MEANS "OF EQUAL FAULT," THE DOCTRINE
HAS BEEN APPLIED, CORRECTLY OR INCORRECTLY, IN A WIDE VARIETY OF
SITUATIONS IN WHICH A PLAINTIFF SEEKING DAMAGES OR EQUITABLE RELIEF IS
HIMSELF INVOLVED IN SOME OF THE SAME SORT OF WRONGDOING.  WE HAVE OFTEN
INDICATED THE INAPPROPRIATENESS OF INVOKING BROAD COMMON-LAW BARRIERS
TO RELIEF WHERE A PRIVATE SUITE SERVES IMPORTANT PUBLIC PURPOSES.  IT
WAS FOR THIS REASON THAT WE HELD IN KIEFER-STEWART CO. V. SEAGRAM &
SONS, 340 U.S. 211 (1951), THAT A PLAINTIFF IN AN ANTITRUST SUIT COULD
NOT BE BARRED FROM RECOVERY BY PROOF THAT HE HAD ENGAGED IN AN
UNRELATED CONSPIRACY TO COMMIT SOME OTHER ANTITRUST VIOLATION. 
SIMILARLY, IN SIMPSON V. UNION OIL CO., 377 U.S. 13 (1964), WE HELD
THAT A DEALER WHOSE CONSIGNMENT AGREEMENT WAS CANCELED FOR FAILURE TO
ADHERE TO A FIXED RESALE PRICE COULD BRING SUIT UNDER THE ANTITRUST
LAWS EVEN THOUGH BY SIGNING THE AGREEMENT HE HAD TO THAT EXTENT BECOME
A PARTICIPANT IN THE ILLEGAL, COMPETITION-DESTROYING SCHEME.  BOTH
SIMPSON AND KIEFER-STEWART WERE PREMISED ON A RECOGNITION THAT THE
PURPOSES OF THE ANTITRUST LAWS ARE BEST SERVED BY INSURING THAT THE
PRIVATE ACTION WILL BE AN EVER-PRESENT THREAT TO DETER ANYONE
CONTEMPLATING BUSINESS BEHAVIOR IN VIOLATION OF THE ANTITRUST LAWS. 
THE PLAINTIFF WAS REAPS THE REWARD OF TREBLE DAMAGES MAY BE NO LESS
MORALLY REPREHENSIBLE THAN THE DEFENDANT, BUT THE LAW ENCOURAGES HIS
SUIT TO FURTHER THE OVERRIDING PUBLIC POLICY IN FAVOR OF COMPETITION. 
A MORE FASTIDIOUS REGARD FOR THE RELATIVE MORAL WORTH OF THE PARTIES
WOULD ONLY RESULT IN SERIOUSLY UNDERMINING THE USEFULNESS OF THE
PRIVATE ACTION AS A BULWARK OF ANTITRUST ENFORCEMENT.  AND PERMITTING
THE PLAINTIFF TO RECOVER A WINDFALL GAIN DOES NOT ENCOURAGE CONTINUED
VIOLATIONS BY THOSE IN HIS POSITION SINCE THEY REMAIN FULLY SUBJECT TO
CIVIL AND CRIMINAL PENALTIES FOR THEIR OWN ILLEGAL CONDUCT.  KIEFER
STEWART, SUPRA. 

IN LIGHT OF THESE CONSIDERATIONS, WE CANNOT ACCEPT THE COURT OF
APPEALS' IDEA THAT COURTS HAVE POWER TO UNDERMINE THE ANTITRUST ACTS BY
DENYING RECOVERY TO INJURED PARTIES MERELY BECAUSE THEY HAVE
PARTICIPATED TO THE EXTENT OF UTILIZING ILLEGAL ARANGEMENTS FORMULATED
AND CARRIED OUT BY OTHERS.  ALTHOUGH PETITIONERS MAY BE SUBJECT TO SOME
CRITICISM FOR HAVING TAKEN ANY PART IN RESPONDENTS' ALLEGEDLY ILLEGAL
SCHEME AND FOR EAGERLY SEEKING MORE FRANCHISES AND MORE PROFITS, THEIR
PARTICIPATION WAS NOT VOLUNTARY IN ANY MEANINGFUL SENSE.  THEY SOUGHT
THE FRANCHISES ENTHUSIASTICALLY BUT THEY DID NOT ACTIVELY SEEK EACH AND
EVERY CLAUSE OF THE AGREEMENT.  RATHER, MANY OF THE CLAUSES WERE QUITE
CLEARLY DETRIMENTAL TO THEIR INTERESTS, AND THEY ALLEGED THAT THEY HAD
CONTINUALLY OBJECTED TO THEM.  PETITIONERS APPARENTLY ACCEPTED MANY OF
THESE RESTRAINTS SOLELY BECAUSE THEIR ACQUIESCENCE WAS NECESSARY TO
OBTAIN AN OTHERWISE ATTRACTIVE BUSINESS OPPORTUNITY.  THE AGREEMENT
THAT SUCH CONDUCT BY PETITIONER DEFEATS THEIR RIGHT TO SUE IS
COMPLETELY REFUTED BY THE FOLLOWING STATEMENT FROM SIMPSON:  "THE FACT
THAT A RETAILER CAN REFUSE TO DEAL DOES NOT GIVE THE SUPPLIER IMMUNITY
IF THE ARRANGEMENT IS ONE OF THOSE SCHEMES CONDEMNED BY THE ANTI-TRUST
LAWS."  377 U.S.,AT 16.  MOREOVER, EVEN IF PETITIONERS ACTUALLY FAVORED
AND SUPPORTED SOME OF THE OTHER RESTRICTIONS, THEY CANNOT BE BLAMED FOR
SEEKING TO MINIMIZE THE DISADVANTAGES OF THE AGREEMENT ONCE THEY HAD
BEEN FORCED TO ACCEPT ITS MORE ONEROUS TERMS AS A CONDITION OF DOING
BUSINESS.  THE POSSIBLE BENEFICIAL BYPRODUCTS OF A RESTRICTION FROM A
PLAITNIFF'S POINT OF VIEW CAN OF COURSE BE TAKEN INTO CONSIDERATION IN
COMPUTING DAMAGES, BUT ONCE IT IS SHOWN THAT THE PLAINTIFF DID NOT
AGGRESSIVELY SUPPORT AND FURTHER THE MONOPOLISTIC SCHEME AS A NECESSARY
PART AND PARCEL OF IT, HIS UNDERSTANDABLE ATTEMPTS TO MAKE THE BEST OF
A BAD SITUATION SHOULD NOT BE A GROUND FOR COMPLETELY DENYING HIM THE
RIGHT TO RECOVER WHICH THE ANTITRUST ACTS GIVE HIM.  WE THEREFORE HOLD
THAT THE DOCTRINE OF IN PARI DELICTO, WITH ITS COMPLEX SCOPE, CONTENTS,
AND EFFECTS, IS NOT TO BE RECOGNIZED AS A DEFENSE TO AN ANTITRUST
ACTION. 

RESPONDENTS, HOWEVER, SEEK TO SUPPORT THE JUDGMENT BELOW ON A
CONSIDERABLY NARROWER GROUND.  THEY PICTURE PETITIONERS AS ACTIVELY
SUPPORTING THE ENTIRE RESTRICTIVE PROGRAM AS SUCH, PARTICIPATING IN ITS
FORMULATION AND ENCOURAGING ITS CONTINUATION.  WE NEED NOT DECIDE,
HOWEVER, WHETHER SUCH TRULY COMPLETE INVOLVEMENT AND PARTICIPATION IN A
MONOPOLISTIC SCHEME COULD EVER BE A BASIS, WHOLLY APART FROM THE IDEA
OF IN PARI DELICTO, FOR BARRING A PLAINTIFF'S CAUSE OF ACTION, FOR IN
THE PRESENT CASE THE FACTUAL PICTURE RESPONDENTS ATTEMPT TO PAINT IS
UTTERLY REFUTED BY THE RECORD.  ONE OF THE RESTRICTIONS WHICH
PETITIONERS MOST STRENUOUSLY CHALLENGE IS THE REQUIREMENT THAT DEALERS
PURCHASE THEIR SUPPLIES EXCLUSIVELY FROM MIDAS.  ANOTHER IS THE
REQUIREMENT THAT DEALERS CARRY MIDAS' FULL LINE OF PARTS.  NEITHER OF
THESE PROVISIONS COULD BE IN A DEALER'S SELF-INTEREST SINCE THEY
OBLIGATE HIM TO BUY FROM MIDAS REGARDLESS OF WHETHER MORE FAVORABLE
PRICES CAN BE OBTAINED FROM OTHER SOURCES OF SUPPLY AND REGARDLESS OF
WHETHER HE NEEDS CERTAIN PARTS AT ALL.  /5/  IN ADDITION, THE
DEPOSITIONS REFER TO NUMEROUS INSTANCES IN WHICH PETITIONERS ASKED
MIDAS FOR PERMISSION TO PURCHASE FROM SOME OTHER SOURCE OF SUPPLY.  THE
RECORD SHOWS THAT THESE REQUESTS WERE REPEATEDLY REFUSED BY MIDAS
REPRESENTATIVES, WHO UNDERSCORED THE REFUSALS BY DESCRIBING THE VERY
REQUESTS AS "HERESY" AND BY COMMENTING THAT DEALERS WHO BOUGHT FROM
OUTSIDE SOURCES OF SUPPLY WERE "ASKING FOR TROUBLE" OR "WERE GOING TO
BE PUNISHED."  A MIDAS OFFICIAL WARNED PETITIONER PIERCE, WHO HAD BEEN
BUYING SOME EXHAUST PARTS FROM OTHER MANUFACTURERS, "JOE, THIS IS JUST
LIKE CHEATING ON YOUR WIFE; IT IS GROUNDS FOR DIVORCE." 

THESE STATEMENTS COMPLETELY REFUTE RESPONDENTS' ARGUMENT THAT
PETITIONERS WERE ACTIVE PARTICIPANTS AND SHOW, TO THE CONTRARY, THAT
THE ILLEGAL SCHEME WAS THRUST UPON THEM BY MIDAS. 

THERE REMAINS FOR CONSIDERATION ONLY THE COURT OF APPEALS'
ALTERNATIVE HOLDING THAT THE SHERMAN ACT CLAIM SHOULD BE DISMISSED
BECAUSE RESPONDENTS WERE ALL PART OF A SINGLE BUSINESS ENTITY AND WERE
THEREFORE ENTITLED TO COOPERATE WITHOUT CREATING AN ILLEGAL
CONSPIRACY.  BUT SINCE RESPONDENTS MIDAS AND INTERNATIONAL AVAILED
THEMSELVES OF THE PRIVILEGE OF DOING BUSINESS THROUGH SEPARATE
CORPORATIONS, THE FACT OF COMMON OWNERSHIP COULD NOT SAVE THEM FROM ANY
OF THE OBLIGATIONS THAT THE LAW IMPOSES ON SEPARATE ENTITIES.  SEE
TIMKEN CO. V. UNITED STATES, 341 U.S. 593, 598 (1951); UNITED STATES V.
YELLOW CAB CO., 332 U.S. 218, 227 (1947).  IN ANY EVENT EACH PETITIONER
CAN CLEARLY CHARGE A COMBINATION BETWEEN MIDAS AND HIMSELF, AS OF THE
DAY HE UNWILLINGLY COMPLIED WITH THE RESTRICTIVE FRANCHISE AGREEMENTS,
ALBRECHT V. HERALD CO., 390 U.S. 145, 150, N. 6 (1968); SIMPSON V.
UNION OIL CO., SUPRA, OR BETWEEN MIDAS AND OTHER FRANCHISE DEALERS,
WHOSE ACQUIESCENCE IN MIDAS' FIRMLY ENFORCED RESTRAINTS WAS INDUCED BY
"THE COMMUNICATED DANGER OF TERMINATION," UNITED STATES V. ARNOLD,
SCHWINN & CO., 388 U.S. 365, 372 (1967); UNITED STATES V. PARKE, DAVIS
& CO., 362 U.S. 29 (1960).  ALTHOUGH RESPONDENTS OBJECT THAT THESE
PARTICULAR THEORIES OF CONSPIRACY NOW PRESSED BY PETITIONERS WERE NOT
ALLEGED WITH SUFFICIENT SPECIFICITY IN THEIR COMPLAINT, THIS SUGGESTION
IS COMPLETELY WITHOUT MERIT.  OUR MODERN RULES PROVIDE FOR TRYING CASES
TO SERVE THE ENDS OF JUSTICE AND REQUIRE THAT PLEADINGS "BE SO
CONSTRUED AS TO DO SUBSTANTIAL JUSTICE."  RULE 8(F), RED.  RULES CIV.
PROC. THE GIST OF PETITIONERS' CAUSE OF ACTION HAS BEEN CLEAR FROM THE
OUTSET, AND RESPONDENTS WILL IN NO WAY BE PREJUDICED IF PETITIONERS ARE
PERMITTED TO RELY ON THESE ALTERNATIVE THEORIES OF CONSPIRACY.     IT
FOLLOWS THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE REVERSED. 
THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE IN FULL
THE JUDGMENT OF THE DISTRICT COURT AND TO REMAND THE CASE FOR TRIAL. 

              IT IS SO ORDERED. 

/1/  26 STAT. 209, 15 U.S.C. 1. 

/2/  38 STAT. 731, 15 U.S.C. 14.     /3/  49 STAT. 1526, 15 U.S.C.
13. 

/4/  IN THEIR MOTION FOR SUMMARY JUDGMENT RESPONDENTS ALSO ARGUED
THAT THE RESTRAINTS WERE PERMISSIBLE AS REASONABLE MEANS TO PROTECT
THEIR REGISTERED TRADE AND SERVICE MARKS, BUT BECAUSE THEY HAD FAILED
TO ANSWER INTERROGATORIES PERTINENT TO THIS DEFENSE, THE DISTRICT JUDGE
ORDERED IT STRICKEN, WITHOUT PREJUDICE TO RENEWAL IF RESPONDENTS
PROMPTLY ANSWERED THE RELEVANT INTERROGATORIES.  BECAUSE OF ITS
DISPOSITION OF THE CASE, THE COURT OF APPEALS REACHED NEITHER THE
MERITS OF THE DEFENSE NOR THE QUESTION WHETHER RESPONDENTS HAD EVER
PROPERLY RENEWED IT.  IN THE CIRCUMSTANCES OF THIS CASE, WE THINK THE
MERITS OF THIS DEFENSE CANNOT BE DECIDED AS A SUMMARY JUDGMENT QUESTION
BUT MUST BE RESOLVED, ALONG WITH ALL THE OTHER ISSUES, BY A TRIAL ON
THE MERITS. 

/5/  RESPONDENTS SUGGEST THAT THESE REQUIREMENTS WERE BENEFICIAL TO
A DEALER BECAUSE THEY HELPED HIM WIN CUSTOMERS WHO HAD CONFIDENCE IN
THE "MIDAS" BRAND, AND SOME DEALERS EVIDENTLY DID TRY TO REAP SOME
BENEFIT FROM THESE REQUIREMENTS BY ADVERTISING, "YOU GET ONLY
NATIONALLY-ADVERTISED MIDAS PRODUCTS."  IT SEEMS HIGHLY UNLIKELY,
HOWEVER, THAT BENEFITS OF THIS KIND COULD DO MORE THAN MITIGATE VERY
SLIGHTLY THE LOSSES THAT A DEALER WOULD SUFFER WHEN FORCED TO BUY
HIGHER-PRICED MIDAS PRODUCTS VOLUNTARILY IF THEY THOUGHT CUSTOMER
PREFERENCES FOR THE BRAND WOULD BE SUFFICIENTLY STRONG TO OFFSET THE
HIGHER PRICE. 

MR. JUSTICE WHITE, CONCURRING. 

I JOIN THE OPINION AND JUDGMENT OF THE COURT WITH THE FOLLOWING
OBSERVATIONS. 

AS LONG AGO AS 1927, IN EASTMAN KODAK CO. OF N.Y. V. SOUTHERN PHOTO
MATERIALS CO., 273 U.S. 359, THE COURT RECOGNIZED THAT PARTICIPATION IN
AN UNLAWFUL COURSE OF CONDUCT WOULD NOT BAR RECOVERY WHERE THE
DEFENDANT'S SUPERIOR BARGAINING POWER LED TO PLAINTIFF'S PARTICIPATION
IN THE UNLAWFUL ARRANGEMENT.  IN KIEFER-STEWART CO. V. JOSEPH E.
SEAGRAM & SONS, INC., 340 U.S. 211 (1951), WHERE PLAINTIFF WAS SAID TO
HAVE PARTICIPATED IN AN ILLEGAL SCHEME OTHER THAN THE ONE CHARGED IN
HIS COMPLAINT, THE COURT MADE IT CLEAR THAT A PLAINTIFF'S OWN
DELIQUENCY UNDER THE ANTITRUST LAWS WOULD NOT ALWAYS BAR HIS TREBLE
DAMAGE SUIT.  SEE ALSO BALES V. KANSAS CITY STAR CO., 336 F.2D 439, 444
(C.A. 8TH CIR. 1964); JEWEL TEA CO. V. LOCAL UNIONS, 274 F.2D 217, 223
(C.A. 7TH CIR.), CERT. DENIED, 362 U.S. 936 (1960).  THESE CASES ARE
ENOUGH TO WARRANT REVERSAL IN THIS CASE, ONCE IT IS CONCLUDED THAT THE
ILLEGAL ARRANTEMENT IN WHICH PETITIONERS PARTICIPATED WAS THRUST ON
THEM BY RESPONDENTS.  THIS IS THE CONCLUSION REACHED BY THE COURT AND I
AGREE WITH IT. 

I ALSO AGREE THAT THE IN PARI DELICTO DEFENSE IN ITS HISTORIC
FORMULATION IS NOT A USEFUL CONCEPT FOR SORTING OUT THOSE SITUATIONS IN
WHICH THE PLAINTIFF MIGHT BE BARRED BECAUSE OF HIS OWN CONDUCT FROM
THOSE IN WHICH HE MAY HAVE BEEN A PARTY TO AN ILLEGAL VENTURE BUT IS
STILL ENTITLED TO DAMAGES FROM OTHER PARTICIPANTS.  JUDGMENTS LIKE
THESE WOULD BE BETTER MADE BY HEWING CLOSER TO THE AIMS AND PURPOSES OF
SEC. 4 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. 15, WHICH GIVES
TREBLE-DAMAGE RECOVERY TO THE PRIVATE PLAINTIFF INJURED BY CONDUCT
WHICH VIOLATES THE ANTITRUST LAWS. 

UNDER SEC. 4, PLAINTIFF MUST SHOW NOT ONLY THAT THE DEFENDANT
VIOLATED THE ANTITRUST LAWS BUT TAHT HIS CONDUCT CAUSED THE DAMAGES
ALLEGED IN THE COMPLAINT.  NORMALLY, IT WOULD BE ENOUGH WITH RESPECT TO
CAUSATION IF THE DEFENDANT "MATERIALLY CONTRIBUTED" TO PLAINTIFF'S
INJURY, CONTINENTAL ORE CO. V. UNION CARBIDE & CARBON CORP., 370 U.S.
690, 702 (1962); OR "SUBSTANTIALLY CONTRIBUTED, NOTWITHSTANDING OTHER
FACTORS CONTRIBUTED ALSO," MOMAND V. UNIVERSAL FILM EXCHANGES, INC.,
172 F.2D 37, 43 (C.A. 1ST CIR. (1948), CERT. DENIED, 336 U.S. 967
(1949).  THE PLAINTIFF NEED NOT SHOW THAT THE ILLEGALITY WAS A MORE
SUBSTANTIAL CAUSE THAN ANY OTHER.  HAVERHILL GAZETTE CO. V. UNION
LEADER CORP., 333 F.2D 798, 805-806 (C.A. 1ST CIR.), CERT. DENIED, 379
U.S. 931 (1964). 

UNDER THIS RULE, A THIRD PARTY PROVING AN ILLEGAL UNDERTAKING BETWEEN
TWO DEFENDANTS MAY RECOVER FOR ALL DAMAGES CAUSED BY THE COMBINATION. 
THOSE DAMAGES NORMALLY MAY BE HAD FROM EITHER OR BOTH DEFENDANTS
WITHOUT REGARD TO THEIR RELATIVE RESPONSIBILITY FOR ORIGINATING THE
COMBINATION OF THEIR DIFFERENT ROLES IN EFFECTUATION ITS ENDS.  THIS IS
BECAUSE NEITHER DEFENDANT, IF HE ACTED ALONE, COULD BE CHARGED WITH THE
VIOLATION; SOME DEGREE OF PARTICIPATION BY BOTH IS ESSENTIAL TO CREATE
A COMBINATION WITHIN THE REACH OF SEC. 1 OF THE SHERMAN ACT.  EITHER
DEFENDANT IS THEREFORE DEEMED TO HAVE BEEN A MATERIAL CAUSE OF THE
DAMAGES, SUFFICIENT TO PERMIT A THIRD PARTY TO RECOVER. 

THIS MAY BE THE RESULT REQUIRED UNDER SEC. 4 WHEN CONSPIRATORS ARE
SUED BY AN INJURED OUTSIDER.  BUT WHAT IS THE SITUATION WHEN ONE PARTY
TO THE COMBINATION SUES THE OTHER?  ASSUME THREE SITUATIONS:  FIRST, A,
A MANUFACTURER, SELLS TO B, A RETAILER, A, OVER B'S OBJECTION, INSISTS
ON B'S ADHERING TO SPECIFIED RESALE PRICES.  B AGREES SINCE A'S PRODUCT
IS AN IMPORTANT PART OF HIS BUSINESS AND HE CAN GET IT NOWHERE ELSE.  B
SUFFERS A DECLINE IN BUSINESS BECAUSE OF AN INABILITY TO MATCH OR
BETTER THE PRICE FOR COMPETING PRODUCTS.  B SUES A. HE IS OBVIOUSLY IN
A POSITION TO PROVE THAT A WAS A SUBSTANTIAL CUASE OF HIS INJURY. 

SECOND, SUPPOSE THAT WHEN B MAINTAINS THE SUGGESTED PRICES ON A'S
PRODUCT, HE SIMPLY SELLS MORE OF C'S COMPETING PRODUCT, WHICH HE ALSO
HANDLES.  B IS NOT HURT, BUT A IS.  A SUES B. 

THIRD, SUPPOSE THAT D AND E, COMPETITORS, COMBINE TO FIX HIGHER
PRICES.  D'S BEST CUSTOMER SETS UP HIS OWN SOURCE OF SUPPLY TO D'S
GREAT DAMAGE.  D SUES E, CLAIMING THAT E WAS A SUBSTANTIAL CAUSE OF HIS
INJURY. 

IT IS ARGUABLE THAT IN EACH SUPPOSED SITUATION RECOVERY SHOULD BE
DENIED BECAUSE THE PLAINTIFF WAS A PARTY TO THE ILLEGALITY AND
WRONGDOERS SHOULD BE LEFT WHERE THEY ARE FOUND.  IN TERMS OF THE
DETERRENT AIMS OF THE STATUTE PERMITTING INJURED PLAINTIFFS TO RECOVER
TREBLE DAMAGES, HOWEVER, THIS UNDISCRIMINATING APPROACH MAKES LITTLE
SENSE.  WHEN THOSE WITH MARKET POWER AND LEVERAGE PERSUADE, COERCE, OR
INFLUENCE OTHERS TO COOPERATE IN AN ILLEGAL COMBINATION TO THEIR
DAMAGE, ALLOWING RECOVERY TO THE LATTER IS WHOLLY CONSISTENT WITH THE
PURPOSE OF SEC. 4, SINCE IT WILL DETER THOSE MOST LIKELY TO BE
RESPONSIBLE FOR ORGANIZING FORBIDDEN SCHEMES.  THE PRINCIPLES OF
EASTMAN KODAK CO. OF N.Y. V. SOUTHERN PHOTO MATERIALS CO., SUPRA,
CLEARLY PERMIT RECOVERY BY THE LESS RESPONSIBLE, BUT INJURED, PARTY. 
IN THE FIRST HYPOTHETICAL CASE, THEREFORE, B SHOULD RECOVER FROM A IN
ORDER TO DETER A AND OTHERS LIKE HIM FROM IMPOSING RESALE PRICE
MAINTENANCE SCHEMES ON THEIR CUSTOMERS. 

IN THE SECOND CASE, WHERE MANUFACTURER A, CONTRARY TO HIS
EXPECTATIONS, WAS INJURED AND RETAILER B WAS NOT, THERE IS NO REASON,
BASED ON THE DETERRENT PURPOSES OF SEC. 4, TO PERMIT RECOVERY FROM B,
EVEN THOUGH HIS COOPERATION WAS ESSENTIAL TO THE COMBINATION AND EVEN
THOUGH HAD A THIRD PARTY BEEN INJURED HE COULD HAVE RECOVERED FROM
EITHER A OR B, OF FROM BOTH.  A, THE MOVING FORCE, SHOULD NOT BE
REWARDED FOR HIS EFFORTS TO FURTHER AN UNLAWFUL PRICE ARRANGEMENT AND
IN EFFECT TO TAKE FROM B THE PROFITS, TREBLED, THAT B MADE BY SELLING
THE PRODUCTS OF A'S COMPETITOR.  B WAS UNWILLING TO ENTER THE ILLEGAL
SCHEME, WAS MOTIVATED PRINCIPALLY BY WHAT HE THOUGHT WAS ECONOMIC
NECESSITY-- THE NEED TO AVOID LOSING BUSINESS BY BEING UNABLE TO OFFER
A MAJOR PRODUCT LINE-- AND WOULD HAVE BEEN ONLY MARGINALLY DETERRED BY
THE PROSPECT OF ANTITRUST LIABILITY. 

IN THE THRID CASE, WHERE D AND E ARE COMPETITORS, IF D SIMPLY PROVES
THE AGREEMENT AND THE RESULTING LOSS, SHOULD HE RECOVER FROM E, ABSENT
SOME BELIEVABLE SHOWING THAT E WAS THE MORE RESPONSIBLE FOR THE ILLEGAL
SCHEME?  NO DOUBT E WAS A SUBSTANTIAL FACTOR IN THE COMBINATION AND
HENCE IN THE INJURY; A JUDGMENT FOR DAMAGES MIGHT DETER HIM AND OTHERS
FROM VIOLATING THE LAW.  BUT D IS EUQALLY RESPONSIBLE FOR HIS OWN
DAMAGES.  TO PERMIT HIM A RECOVERY MAY BE A COUNTER-DETERRENT.  BY
ASSURING HIM ILLEGAL PROFITS IF THE AGREEMENT IN RESTRAINT OF TRADE
SUCCEEDS, AND TREBLE DAMAGES IF IT FAILS, IT MAY ENCOURAGE WHAT THE ACT
WAS DESIGNED TO PREVENT.  IN THIS SITUATION, IT IS DOUBTFUL THAT THE
ENDS OF SEC. 4 WOULD BE MEASURABLY SERVED BY PERMITTING D'S RECOVERY. 
IF JUDGE OR JURY FINDS THE PARTIES EUQALLY RESPONSIBLE FOR THE CONDUCT
WHICH CAUSED INJURY, D'S RECOVERY UNDER SEC. 4 SHOULD BE DENIED FOR
FAILURE OF PROOF THAT E WAS THE MORE SUBSTANTIAL CAUSE OF THE INJURY. 

NO SIMPLE FORMULA CAN ENCOMPASS THE INFINITE VARIETY OF POSSIBLE
SITUATIONS.  GENERALLY SPEAKING, HOWEVER, I SUBSTANTIALLY EQUAL
RESPONSIBILITY FOR INJUYR RESULTING TO ONE OF THEM BUT PERMIT RECOVERY
IN FAVOR OF THE ONE LESS RESPONSIBLE WHERE ONE IS MORE RESPONSIBLE THAN
THE OTHER.  THIS RULE WOULD SIMPLY POSE THE ISSUE OF CAUSATION IN
PARTICULARIZED FORM.  THERE WILL BE LITTLE MYSTERY AS TO WHAT EVIDENCE
WOULD BE RELEVANT PROOF:  FACTS AS TO THE RELATIVE RESPONSIBILITY FOR
ORIGINATING, AS TO WHO MIGHT REASONABLY HAVE BEEN EXPECTED TO BENEFIT
FROM THE PROVISION OR CONDUCT MAKING THE SCHEME ILLEGAL UNDER SEC. 1;
PROOF OF WHETHER ONE PARTY ATTEMPTED TO TERMINATE THE ARRANGEMENT AND
ENCOUNTERED RESISTANCE OR COUNTER-MEASURES FROM THE OTHER; FACTS
SHOWING WHO ULTIMATELY PROFITED OR SUFFERED FROM THE ARRANGEMENT. 

AS I VIEW THE RECORD IN THE CASE BEFORE US, THE EVIDENCE IS
INSUFFICIENT TO SHOW THAT PETITIONERS WERE AS RESPONSIBLE AS
RESPONDENTS, OR MORE SO, FOR THE ADMITTEDLY ILLEGAL SCHEME.  THE
EVIDENCE BEFORE US DOES NOT SUGGEST THAT PETITIONERS WERE EQUAL
PARTNERS WITH RESPONDENTS WITH RESPECT TO THE ORIGIN AND IMPLEMENTATION
OF THIS SCHEME FOR DISTRIBUTING RESPONDENTS' MUFFLERS, ON IN TERMS OF
BENEFITS FROM THE SCHEME.  IN SUCH CIRCUMSTANCES SUMMARY JUDGMENT FOR
RESPONDENTS WAS IMPROPER. 

MR. JUSTICE FORTAS, CONCURRING IN THE RESULT. 

I AGREE WITH THE RESULT IN THIS CASE.  PETITIONERS' RIGHT TO RECOVER
IN THEIR OWN INTEREST AND AS "PRIVATE ATTORNEYS GENERAL" TO ENFORCE THE
ANTITRUST LAWS CANNOT BE DENIED ON THE BASIS OF THE DOCTRINE OF IN PARI
DELICTO.  SIMPSON V. UNION OIL CO., 337 U.S. 13 (1964). 

THE DOCTRINE HAS, HOWEVER, A SIGNIFICANT IF LIMITED ROLE IN PRIVATE
ANTITRUST LAW.  IF THE FAULT OF THE PARTIES IS REASONABLY WITHIN THE
SAME SCALE-- IF THE "DELICTUM" IS APPROXIMATELY "PAR"-- THEN THE
DOCTRINE SHOULD BAR RECOVERY.  THIS MIGHT BE THE CASE, FOR EXAMPLE, IF
A MANUFACTURER OR MUFFLERS AND A MANUFACTURER OF OTHER PARTS HAD
COMBINED TO FORMULATE AND OPERATE A COLLUSIVE SCHEME.  ONE CO
ADVENTURER COULD NOT SUE THE OTHER FOR DISCRIMINATORY OR RESTRICTIVE
PRACTICES WHICH ALLEGEDLY DIMINISHED ITS TAKE FROM THE ENTERPRISE. 

BUT EQUALITY OF POSITION OF THIS GENERAL NATURE IS NECESSARY BEFORE
IN PARI DELICTO MAY APPLY TO BAR AN ANTITRUST REMEDY.  UNLESS THE
DOCTRINE IS SO LIMITED, THE PRIVATE REMEDY PROVIDED BY THE ANTITRUST
LAWS IS NULLIFIED TO A SIGNIFICANT EXTENT.  THE OWNER OF A GAS STATION
MAY ENTER INTO AN ARRANGEMENT WITH THE DISTRIBUTOR AND MAY BENEFIT FROM
ITS RESTRICTIVE PROVISIONS.  BUT THIS LESS-THAN-EQUAL PARTICIPATION IN
THE CRIME MUST NOT BAR HIM FROM RECOVERING IN HIS OWN AND THE PUBLIC
INTEREST IF HE CAN SHOW THAT HE HAS SUFFERED COMPENSABLE HARM.  OUR
DECISION IN SIMPSON INDICATES THIS QUITE CLEARLY.  THE ANTITRUST LAWS
ARE INTENDED TO PROTECT INDIVIDUALS "FROM COMBINATIONS FASHIONED BY
OTHERS AND OFFERED TO (THEM) . . . AS THE ONLY FEASIBLE METHOD BY WHICH
(THEY) MAY DO BUSINESS."  RING V. SPINA, 148 F.2D 647, 653 (1945). 

AS THE COURT POINTS OUT, IT IS POSSIBLE THAT THE FRANCHISEE MAY BE
PROVED TO BE A COLLABORATOR, OR CO-ADVENTURER, OR A TRUE PARTICEPS
CRIMINIS WITH RESPECT TO A PARTICULAR ASPECT OF THE PLAN-- FOR EXAMPLE,
IF HE ORIGINATED AND INSISTED UPON THE INCLUSION OF A TERRITORIAL
EXCLUSIVITY CLAUSE WHICH WAS NOT IN THE FRANCHISE AS DRAFTED BY THE
FRANCHISOR.  HE COULD NOT RECOVER DAMAGES BASED UPON THIS, IF,
ESSENTIALLY, IT IS HIS OWN ACT. 

CLEARLY, PETITIONERS HERE ARE NOT CO-ADVENTURERS OR PARTNERS IN THE
FRANCHISE ARRANGEMENT AS A WHOLE, AND THEY ARE NOT BARRED BY IN PARI
DELICTO.  ON REMAND, AS THE COURT ORDERS, IF PETITIONERS ARE CHARGEABLE
WITH RESPONSIBILITY FOR A PARTICULAR CLAUSE OF THE AGREEMENT OR
RESTRICTIVE COVENANT BECAUSE IT IS, IN SUBSTANCE, THEIR OWN ACT, THEY
SHOULD NOT BE ALLOWED TO RECOVER FOR INJURY THEY MAY HAVE SUFFERED
BECAUSE OF IT. 

MR. JUSTICE MARSHALL, CONCURRING IN THE RESULT. 

WHILE I AGREE WITH THE RESULT AND MUCH OF THE REASONING IN THE
OPINION OF THE COURT IN THIS CASE, I FIND MYSELF UNABLE TO ACCPET WHAT
I TAKE TO BE THE HOLDING THAT THE DOCTRINE OF IN PARI DELICTO HAS NO
PLACE IN A TREBLE-DAMAGE ANTITRUST ACTION.  NOT ONLY IS IT UNNECESSARY
TO PASS ON SUCH A BROAD PROPOSITION ON THE FACTS OF THIS CASE, AS THE
COURT'S OPINION REVEALS, BUT THE HOLDING ITSELF IS, IN MY OPINION,
INCORRECT. 

I AGREE THAT THE "COMPLEX SCOPE, CONTENTS, AND EFFECTS" OF THE
DOCTRINE AS IT HAS GROWN UP IN THE COMMON LAW SHOULD NOT BE APPLIED
MECHANICALLY TO PRIVATE ANTITRUST ACTIONS UNDER THE RELEVANT FEDERAL
STATUTES.  ON THE OTHER HAND, I BELIEVE THAT A LIMITED APPLICATION OF
THE BASIC PRINCIPLE BEHIND THE DOCTRINE OF IN PARI DELICTO IS BOTH
PROPER AND DESIRABLE IN THE ANTITRUST FIELD.  AS THE COURT NOTES, ANTE,
AT 138, THE LITERAL MEANING OF IN PARI DELICTO IS OF EQUAL FAULT.  I
WOULD HOLD THAT WHERE A DEFENDANT IN A PRIVATE ANTITRUST SUIT CAN SHOW
THAT THE PLAINTIFF ACTIVELY PARTICIPATED IN THE FORMATION AND
IMPLEMENTATION OF AN ILLEGAL SCHEME, AND IS SUBSTANTIALLY EQUALLY AT
FAULT, THE PLAINTIFF SHOULD BE BARRED FROM IMPOSING LIABILITY ON THE
DEFENDANT.     SUCH AN APPROACH WOULD STILL REQUIRE REVERSAL OF THE
DECISION OF THE COURT OF APPEALS IN THIS CASE.  AS THIS COURT'S OPINION
MAKES PERFECTLY CLEAR, THE MERE FACT THAT A PARTY ENTERS INTO AN
AGREEMENT CONTAINING PROVISIONS THAT ARE VIOLATIVE OF THE ANTITRUST
LAWS WITH THE INTENT TO MAKE MONEY BY OPERATING UNDER THE AGREEMENT IS
NOT IN ITSELF SUFFICIENT TO SHOW THAT HE IS EUQALLY RESPONSIBLE FOR THE
EXISTENCE OF THE ILLEGAL PROVISIONS.  SIMPSON V. UNION OIL CO., 377
U.S. 13 (1964).  FURTHERMORE, THE COURT IS CERTAINLY CORRECT IN
CONCLUDING THAT THE RECORD IS REPLETE WITH EVIDENCE, RELATING TO THE
TYING AND EXCLUSIVE-DEALING PROVISIONS OF THE FRANCHISE AGREEMENT,
WHICH INDICATES, WITH SUFFICIENT PROBATIVE FORCE TO WITHSTAND
RESPONDENTS'  MOTION FOR SUMMARY JUDGMENT, THAT THE PETITIONERS DID NOT
ACTIVELY SEEK OUT OR SUPPORT ALL THE ANTICOMPETITIVE RESTRAINTS
EMBODIED IN THE FRANCHISE. 

HOWEVER, THE INQUIRY SHOULD NOT STOP HERE.  THE FRANCHISE AGREEMENT
ALSO CONTAINS PROVISIONS REQUIRING BOTH RESLAE PRICE MAINTENANCE AND
THE OBSERVANCE OF TERRITORIAL RESTRICTIONS ON SALES BY FRANCHISEES. 
BOTH OF THESE SETS OF RESTRICTIONS ARE ONES WHICH, AT LEAST ON THEIR
FACE, WOULD ORDINARILY BE EXPECTED TO BENEFIT THE FRANCHISEES MORE THAN
MIDAS.  BOTH RESTRICT COMPETITION BETWEEN FRANCHISEES, NOT BETWEEN
MIDAS AND OTHER SUPPLIERS COMPETING TO SELL PARTS TO MIDAS
FRANCHISEES.  IF MIDAS CAN MAKE AN ADEQUATE SHOWING THAT THOSE
PROVISIONS WERE INSERTED INTO THE FRANCHISE AGREEMENT AT THE BEHEST AND
FOR THE BENEFIT OF PETITIONERS AND THEIR FELLOW FRANCHISEES,
PETITIONERS SHOULD, IN MY OPINION, BE BARRED FROM CONTENDING THAT THEY
WERE DAMAGED BY THE EXISTENCE AND ENFORCEMENT OF THE PROVISIONS. 

I AGREE WITH THE COURT THAT PETITIONERS SHOULD NOT BE BARRED FROM
RECOVERING DAMAGES ATTRIBUTABLE TO THE ENFORCEMENT OF THE TYING AND
EXCLUSIVE DEALING PROVISIONS AGAINST THEM ON THE SOLE GROUND THAT THEY
PARTICIPATED IN THE FORMULATION OF OTHER ANTICOMPETITIVE PROVISIONS IN
THE AGREEMENT.  CF. MOORE V. MEAD SERVICE CO., 340 U.S. 944 (1951),
VACATING 184 F.2D 338 (C.A. 10TH CIR. 1950).  HOWEVER, IF MIDAS COULD
SHOW, WHICH IT HAS QUITE CLEARLY NOT DONE AT THIS STAGE OF THE
LITIGATION, THAT PETITIONERS ACTUALLY PARTICIPATED IN THE FORMULATION
OF THE ENTIRE AGREEMENT, TRADING OFF ANTICOMPETITIVE RESTRAINTS ON
THEIR OWN FREEDOM OF ACTION (SUCH AS THE TYING AND EXCLUSIVE DEALING
PROVISIONS) FOR ANTICOMPETITIVE RESTRAINTS INTENDED FOR THEIR BENEFIT
(SUCH AS RESALE PRICE MAINTENANCE OR EXCLUSIVE TERRITORIES),
PETITIONERS SHOULD BE BARRED FROM SEEKING DAMAGES AS TO THE AGREEMENT
AS A WHOLE. 

IT MAY BE ARGUED THAT THE COURSE I PROPOSE UNDULY COMPLICATES
PRIVATE ANTITRUST LITIGATION.  A HOLDING THAT A PARTY WHO VOLUNTARILY
ENTERS INTO AN AGREEMENT CONTAINING PROVISIONS THAT VIOLATE THE
ANTITRUST LAWS IS BARRED FROM ANY RECOVERY ON THAT AGREEMENT ALTOGETHER
(AS THE COURT OF APPEALS HAS HELD HERE) OR, AT THE OTHER EXTREME, IS
ABSOLUTELY FREE TO RECOVER ANY DAMAGES THAT HE CAN SHOW TO STEM FROM
HIS OPERATIONS UNDER THE AGREEMENT (AS THIS COURT'S OPINION SEEMS TO
HOLD) WOULD PRESUMABLY BE CONSIDERABLY EASIER TO APPLY IN MOST CASES. 
IT SEEMS TO ME, HOWEVER, THAT NEITHER HOLDING WOULD REPRESENT A
SATISFACTORY RESOLUTION OF THE DIFFICULT PROBLEMS CONCERNING THE
ADMINISTRATION OF THE ANTITRUST LAWS RAISED BY AGREEMENTS SUCH AS THE
ONE INVOLVED IN THE PRESENT CASE. 

THE REASONS FOR REJECTING THE APPROACH TAKEN BY THE COURT OF APPEALS
ARE, AS I HAVE SAID, PERSUASIVELY SET FORTH IN THE OPINION OF THE
COURT.  THE REASONS I SEE FOR REJECTING THE APPROACH TAKEN BY THIS
COURT ARE, PERHAPS, LESS RELATED TO THE PUBLIC INTEREST IN ELIMINATING
ALL FORMS OF ANTICOMPETITIVE BUSINESS CONDUCT AND MORE RELATED TO THE
EQUITIES AS BETWEEN THE PARTIES.  THE PRINCIPLE THAT A WRONGDOER SHALL
NOT BE PERMITTED TO PROFIT THROUGH HIS OWN WRONGDOING IS FUNDAMENTAL IN
OUR JURIS-PRUDENCE.  THE TRADITIONAL DOCTRINE OF IN PARI DELICTO IS
ITSELF FIRMLY BASED ON THIS PRINCIPLE.  I NEVERTHELESS AGREE, BECAUSE
OF THE STRONG PUBLIC INTEREST IN ELIMINATING RESTRAINTS ON COMPETITION,
THAT MANY OF THE REFINEMENTS OF MORAL WORTH DEMANDED OF PLAINTIFFS BY
SUCH TRADITIONAL LEGAL AND EQUITABLE DOCTRINES AS VOLENTI NON FIT
INJURIA, UNCLEAN HANDS, AND MANY OF THE VARIATIONS OF IN PARI DELICTO
SHOULD NOT BE APPLICABLE IN THE ANTITRUST FIELD.  HOWEVER, I CANNOT
AGREE THAT THE PUBLIC INTEREST REQUIRES THAT A PLAINTIFF WHO HAS
ACTIVELY SOUGHT TO BRING ABOUT ILLEGAL RESTRAINTS ON COMPETITION FOR
HIS OWN BENEFIT BE PERMITTED TO DEMAND REDRESS-- IN THE FORM OF TREBLE
DAMAGES-- FROM A PARTNER WHO IS NO MORE RESPONSIBLE FOR THE EXISTENCE
OF THE ILLEGALITY THAN THE PLAINTIFF. 

THE POSSIBLE ADDED DETERRENCE TO VIOLATIONS OF THE ANTITRUST LAWS
THAT WOULD BE PRODUCED BY THE COURT'S HOLDING MAY WELL BE EQUALED, IF
NOT SURPASSED, BY THE NEW INCENTIVE IT WILL CREATE TO COMMIT SUCH
VIOLATIONS, FOR A POTENTIAL VIOLATOR WILL HAVE LESS TO LOSE IF HE CAN
ATTEMPT TO RECOVER HIS LOSSES FROM HIS PARTNER SHOULD THE SCHEME NOT
WORK OUT TO HIS BENEFIT. 

THE COURT'S OPINION APPEARS TO SEEK TO MINIMIZE THE CONSEQUENCES OF
DOING AWAY WITH THE IN PARI DELICTO DEFENSE BY SUGGESTING THAT A
DEFENDANT WILL BE ABLE TO HAVE THE "BENEFICIAL BYPRODUCTS OF A
RESTRICTION" (ANTE, AT 140) TO THE PLAINTIFF TAKEN INTO ACCOUNT IN THE
COMPUTATION OF DAMAGES.  THIS, OF COURSE, IS TO SOME EXTENT ALREADY
TRUE IN ANY ANTITRUST CASE.  ILLEGAL CONDUCT DOES NOT PER SE RESULT IN
A MONEY JUDGMENT FOR A PLAINTIFF; INJURY MUST ALWAYS BE SHOWN. 
HOWEVER, A DEFENDANT MIGHT ALSO BE PERMITTED TO SHOW THAT THE
PLAINTIFF'S FINANCIAL REWARDS FROM SOME OF THE ILLEGAL PROVISIONS OF AN
AGREEMENT OUTWEIGHED THE HARM SUFFERED FROM OTHER ILLEGAL PROVISIONS,
AND ACCORDINGLY ON SOME SORT OF OFFSET THEORY THE PLAINTIFF WOULD
RECOVER NOTHING. 

IF SUCH AN OFFSET APPROACH ON THE ISSUE OF DAMAGES IS ENVISIONED BY
THE COURT, IT HARDLY SEEMS AN ADEQUATE MEANS OF PREVENTING UNJUST
ENRICHMENT.  FIRST, THAT APPROACH CLEARLY PERMITS DAMAGES TO BE AWARDED
WHEN INJURY IS SHOWN TO OUTWEIGH BENEFIT REGARDLESS OF THE NATURE OF
THE PLAINTIFF'S PARTICIPATION IN THE SCHEME.  SECOND, IT ADDS AN
UNNECESSARILY SPECULATIVE ELEMENT TO THE FACTUAL INQUIRY REQUIRED IN AN
ANTITRUST CASE.  WHILE A TRIER OF FACT MAY HAVE SOME DIFFICULTY IN
ALLOCATING RESPONSIBILITY BETWEEN THE PARTIES TO AN AGREEMENT, THE
ALLOCATION CAN BE MADE FOR THE MOST PART ON THE BASIS OF HARD EVIDENCE
AS TO THE FACTS SURROUNDING THE MAKING OF THE AGREEMENT.  THE
DETERMINATION OF DAMAGES IN AN ANTITRUST SUIT, HOWEVER, ALMOST
INVARIABLY REQUIRES A CERTAIN AMOUNT OF SPECULATION, NO MATTER HOW
INFORMED.  CF. BIGELOW V. RKO PCITURES, INC., 327 U.S. 251, 264
266(1946).  SUCH SPECULATION IS ORDINARILY UNAVOIDABLE IF DAMAGES ARE
TO BE PROVABLE.  HERE THERE IS NO NECESSITY FOR PERMITTING ADDITIONAL
SPECULATION AS TO OFFSETTING BENEFITS IN ORDER TO PREVENT UNJUST
ENRICHMENT BECAUSE THE SAME GOAL CAN BE ACHIEVED BY A FACTUAL
EVALUATION OF THE PARTIES' RESPECTIVE FAULT. 

FOR EXAMPLE, IT IS OBVIOUSLY MUCH EASIER TO DETERMINE IN THIS CASE
WHETHER PETITIONERS ACTIVELY PARTICIPATED IN THE FORMULATION AND
IMPLEMENTATION OF THE VARIOUS ILLEGAL PROVISIONS OF THE FRANCHISE
AGREEMENT THAN IT IS TO DECIDE WHETHER THE MONETARY BENEFITS THAT
PETITIONERS OBTAINED THROUGH THE RESALE PRICE MAINTENANCE AND EXCLUSIVE
TERRITORIAL PROVISIONS SURPASSED THE LOSSES THEY SUFFERED FROM THE
EXCLUSIVE DEALING AND TYING ARRANGEMENTS.  SINCE I REGARD A RESPECTIVE
GAULT APPROACH AS SUPERIOR TO A DAMAGE-OFFSET APPROACH ON PRINCIPLE,
THE COMPLICATIONS INHERENT IN THE LATTER INQUIRY MERELY REINFORCE MY
CONVICTION THAT THE COURT IS BEING UNWISE IN BROADLY REJECTING THE
DOCTRINE OF IN PARI DELICTO. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE STEWART JOINS, CONCURRING
IN PART AND DISSENTING IN PART. 

THE VARIETY OF VIEWS THIS CASE HAS ENGENDERED SEEMS TO ME TO STEM
FROM LACK OF AGREEMENT ON A DEFINITION OF THE TERM "IN PARI DELICTO,"
AS WELL AS A DISAGREEMENT, PERHAPS, ON THE STANDARDS THAT SHOULD GOVERN
THE USE OF THE DEFENSE TO WHICH THAT TERM IS PROPERLY APPLIED.  I
BELIEVE THAT THE COURTS BELOW MISUSED THE TERM, BUT THAT PROPERLY USED
IT REFERS TO A DEFENSE THAT SHOULD BE PERMITTED IN ANTITRUST CASES. 
CONSEQUENTLY, I WOULD REMAND THIS CASE NOT FOR IMMEDIATE TRIAL BUT FOR
FRESH CONSIDERATION OF THE MOTION FOR SUMMARY JUDGMENT UPON PROPER
STANDARDS. 

PLAINTIFFS WHO ARE TRULY IN PARI DELICTO ARE THOSE WHO HAVE
THEMSELVES VIOLATED THE LAW IN COOPERATION WITH THE DEFENDANT.  /1/  IF
THE LAW IS THE SHERMAN ACT, BOTH ARE, IN PRINCIPLE, LIABLE EQUALLY TO
CRIMINAL PROSECUTION.  FOR EXAMPLE, TWO MANUFACTURERS WHO AGREE ON A
PRICE AT WHICH THEY WILL SELL ARE "OF EQUAL FAULT," AS ARE A
MANUFACTURER AND A DEALER WHO STRIKE A BARGAIN WHEREBY EACH ACCEPTS AN
ILLEGAL RESTRICTION THAT BENEFITS THE OTHER. 

WHEN A PERSON SUFFERS LOSSES AS A RESULT OF ACTIVITIES THE LAW
FORBADE HIM TO ENGAGE IN, I SEE NO REASON WHY THE LAW SHOULD AWARD HIM
TREBLE DAMAGES FROM HIS FELLOW OFFENDERS.  IT SEEMS TO ME A BIZARRE WAY
TO "FURTHER THE OVERRIDING PUBLIC POLICY IN FAVOR OF COMPETITION,"
ANTE, AT 139, TO PAY VIOLATORS THREE TIMES THEIR LOSSES IN DOING WHAT
PUBLIC POLICY SEEKS TO DETER THEM FROM DOING.  EVEN IF THE THREAT OF
INTRA-CONSPIRACY TREBLE DAMAGES HAD SOME DETERRENT EFFECT, HOWEVER, I
SHOULD NOT NOT THINK IT A TOO "FASTIDIOUS REGARD FOR THE RELATIVE MORAL
WORTH OF THE PARTIES," IBID., TO DECLINE TO SANCTION A KIND OF
ANTITRUST ENFORCEMENT THAT RESTS UPON A PRINCIPLE OF WELL-COMPENSATED
DISHONOR AMONG THIEVES. 

THERE ARE, HOWEVER, THREE SITUATIONS QUITE DISTINCT FROM THAT TO
WHICH I THINK THE TERM IN PARI DELICTO IS PROPERLY APPLIED.  THE FIRST
IS THE "CONSENT" SITUATION IN WHICH THE LATIN MAXIM "VOLENTI NON FIT
INJURIA" IS SOMETIMES INVOKED.  WHERE X AND Y CONSPIRE TO FIX PRICES AT
WHICH THEY WILL SELL, THEY ARE IN PARI DELICTO.  IF Z, KNOWING OF THE
CONSPIRACY, NEVERTHELESS PURCHASES FROM X, HE IS NOT IN PARI DELICTO. 
HE HAS COMMITTED NO OFFENSE:  THE MOST THAT CAN BE SAID IS THAT HE
KNOWINGLY ALLOWED AN OFFENSE TO BE COMMITTED AGAINST HIM.  I WOULD
AGREE, FOR MANY OF THE REASONS STATED IN THE OPINION OF MR. JUSTICE
BLACK, MR. JUSTICE FORTAS, AND MR. JUSTICE MARSHALL, THAT THERE SHOULD
BE NO DEFENSE IN SUCH A SITUATION, WHERE THE PLAINTIFF HAS DONE NOTHING
THE LAW TOLD HIM NOT TO DO. 

A SECOND SITUATION DISTINGUISHABLE FROM TRUE IN PARI DELICTO IS
ILLUSTRATED BY KIEFER-STEWART CO. V. SEAGRAM & SONS, 340 U.S. 211,
RELIED ON BY THE COURT.  IT WAS THERE ALLEGED IN DEFENSE TO A TREBLE
DAMAGE ACTION THAT THE DEFENDANTS' ILLEGAL ACTIONS WERE TAKEN IN
REPRISAL AGAINST ALTOGETHER INDEPENDENT ILLEGAL ACTIONS BY THE
PLAINTIFF.  HERE AGAIN, I ACCEPT THE DECISION THAT THIS IS NO DEFENSE. 
OUR LAW FROWNS ON VIGILANTE JUSTICE.  SINCE THE PLAINTIFF IS IN PART
ENFORCING THE PUBLIC INTEREST AGAINST THE DEFENDANTS' VIOLATIONS, I
WOULD PERMIT HIM TO DO SO, AND LEAVE PUNISHMENT FOR ANY INDEPENDENT
VIOLATION BY HIM TO PROPER MEANS OF ENFORCEMENT. 

THE THIRD DISTINGUISHABLE SITUATION MAY OR MAY NOT BE ILLUSTRATED BY
SIMPSON V. UNION OIL CO., 377 U.S. 13, AND ALBRECHT V. HERALD CO., 390
U.S. 154, TWO CASES THAT I FIND IT QUITE DIFFICULT TO UNDERSTAND.  /2/
IN EACH OF THEM, THE PLAINTIFF HAD BEEN OFFERED A DEALERSHIP, ON TERMS
THAT HE DID NOT PARTICIPATE IN FORMULATING, ADN IN EACH CASE HE AT
FIRST "ACCEPTED" SUCH A DEALERSHIP.  SINCE NEITHER CASE STATED
SATISFACTORILY WHERE THE ALLEGED COMBINATION IN RESTRAINT OF TRADE WAS
TO BE FOUND, IT IS NOT CLEAR WHETHER THE PLAINTIFF'S ACCEPTANCE OF A
DEALERSHIP WAS ITSELF A FORBIDDEN ACT.  IT IT WAS NOT, THEN THESE CASES
FALL UNDER THE HEADING OF "CONSENT" CASES.  A PERSON WHO ENGAGED IN A
LAWFUL BUSINESS ON THE TERMS OFFERED SHOULD NOT BE PREVENTED FROM SUING
MERELY BY HIS KNOWLEDGE THAT OTHERS VIOLATED THE LAW IN CONTRIVING
THOSE TERMS.  IF, HOWEVER, THOSE PLAINTIFFS WERE DOING SOMETHING THE
LAW TOLD THEM NOT TO DO, I SUGGEST THAT RECOVERY IN THOSE CASES CAN
BEST BE UNDERSTOOD ON THE THEORY OF A "COERCION" EXCEPTION TO THE IN
PARI DELICTO DOCTRINE.  THAT IS, ALTHOUGH A LARGE BUSINESS WITH THE
POWER TO DICTATE TERMS AND A SMALL BUSINESS THAT CAN ONLY ACCEPT THEM
OR CEASE DOING BUSINESS MAY BOTH, IN PRINCIPLE, BE LIABLE TO LEGAL
SANCTIONS FOR THE CONTRACT THAT RESULTS FROM THE OFFER AND ACCEPTANCE,
IT IS CONSIDERED THAT THE LIABILITY IS NOT "PAR," AND THAT THE BUSINESS
ACCEPTING DICTATION IS ONLY MINIMALLY BLAMEWORTHY. 

IN MY VIEW, THE DISTRICT COURT AND THE COURT OF APPEALS DID NOT
APPLY THE TRUE IN PARI DELICTO STANDARD TO THIS CASE.  THE DISTRICT
COURT SAID THAT "EACH PLAINTIFF VOLUNTARILY ENTERED INTO THE FRANCHISE
AGREEMENT . . . AND ACCEPTED THE BENEFITS THEREFROM.  THEY ARE . . .
(THEREFORE?)  IN PARI DELICTO WITH DEFENDANTS.  . . . "  /3/  AT
ANOTHER POINT THE COURT SAID, "WE HAVE REPEATEDLY HELD THAT A PERSON
WHO FREELY ASSENTS TO AN ACT SUFFERS 'NO LEGAL INJURY' IF HARM RESULTS
THEREFROM."  /4/  ALTHOUGH THE DISTRICT COURT MADE A PASSING
DISTINCTION OF THE "COERCION" AND "UNCLEAN HANDS" DOCTRINES, IT IS NOT
CLEAR THAT IT MEANT TO HOLD THAT THE VIOLATION OF THE SHERMAN ACT, IF
ANY, WAS ONE FOR WHICH PLAINTIFFS WERE SUBJECT TO PUBLIC-LAW SANCTIONS
ALONG WITH THE DEFENDANTS. 

THE COURT OF APPEALS DECISION WAS SIMILAR.  THAT COURT RELIED ON THE
DISTRICT COURT'S LANGUAGE QUOTED ABOVE, ADDING THAT EACH OF THE
PLAINTIFFS HAD MADE A SUBSTANTIAL PROFIT FROM SELLING AUTO PARTS, A
FACT THAT MIGHT BEAR ON THE MEASURE OF ANY DAMAGES BUT WHICH, APART
FROM ILLEGAL ACTION ON THE PART OF THE PLAINTIFFS, SHOULD NOT AFFORD AN
ABSOLUTE DEFENSE.  /5/     IT IS BY NO MEANS CLEAR ON THIS RECORD,
HOWEVER, THAT THE PLAINTIFFS MAY NOT BE SAID TO HAVE BEEN IN PARI
DELICTO IN THE PROPER SENSE OF THAT TERM.  THIS QUESTION IS RENDERED
MORE DIFFICULT BY THE COMPLEXITY OF THE RECORD HISTORY OF PLAINTIFFS'
ACTIVITIES, AND BY THE FORMIDABLE OBSCURITY OF THE LAW OF DEALER
LIABILITY FOR VERTICAL RESTRAINTS, AN OBSCURITY FORSTERED BY SIMPSON,
SUPRA, ALBRECHT, SUPRA, AND ABOVE ALL BY UNITED STATES V. PARKE, DAVIS
& CO., 362 U.S. 29.  ALTHOUGH I MAKE NO ATTEMPT TO DRAIN THE BOG AT
THIS POINT, I AM OF THE VIEW THAT BEFORE THIS CASE GOES TO TRIAL THE
LOWER COURTS SHOULD BE GIVEN ANOTHER OPPORTUNITY TO CONSIDER THE IN
PARI DELICTO DEFENSE.  I WOULD REMAND THIS CASE TO DETERMINE WHETHER
ANY AGREEMENT ALLEGED TO BE IN RESTRAINT OF TRADE WAS ONE FOR WHICH THE
PLAINTIFFS WERE SUBSTANTIALLY AS MUCH RESPONSIBLE, AND AS MUCH LEGALLY
LIABLE, AS THE DEFENDANTS.  I WOULD PERMIT THE LO4ER COURTS TO CONSIDER
THIS QUESTION UPON THE EXISTING AFFIDAVITS AND SUCH ADDITIONAL MATERIAL
AS EITHER SIDE MAY WISH TO ADDUCE. 

/1/  THIS IS AT LEAST THE TRADITIONAL USE OF THE TERM.  SEE, E.G.,
WILLIAMS V. HEDLEY, 8 EAST 378, 381-382, 103 ENG.REP.  388, 389.  SEE
GENERALLY NOTE, IN PARI DELICTO AND CONSENT AS DEFENSES IN PRICATE
ANTITRUST SUITS, 78 HARV.L.REV.  1241, DISTINGUISHING THE TWO
DEFENSES.  THE PRESENT CASE IS AS GOOD AN ILLUSTRATION AS ANY OF THE
USEFULNESS OF MAINTAINING DISTINCT TERMS FOR THE DISTINCT SITUATIONS
PROPERLY CHARACTERIZED BY "IN PARI DELICTO," "CONSENT," "UNCLEAN
HANDS," AND SO FORTH. 

/2/  SEE MY DISSENTING OPINION IN ALBRECHT, 390 U.S.,AT 156. 

/3/  1966 TRADE CASES PARA. 71,801, AT 82,705. 

/4/  ID., AT 82,706. 

/5/  SEE 376 F.2D 692, AT 693, 695. 

ROBERT F. ROLNICK ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WERE RAYMOND R. DICKEY AND BERNARD GORDON. 

GLENN W. MCGEE ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE JOHN T. CHADWELL, DAVID J. GIBBONS, JOHN C. BERGHOFF, JR.,
DAVID SILBERT, AND JAY ERENS. 
..END :










U.S. V. SOUTHWESTERN CABLE CO., 392 U.S. 157 


       UNITED STATES ET AL. V. SOUTHWESTERN CABLE CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 363.  ARGUED MARCH 12-13, 1968.-- DECIDED JUNE 10,

1968.  /1/ 


COMMUNITY ANTENNA TELEVISION (CATV) SYSTEMS RECEIVE TELEVISION
BROADCAST SIGNALS, AMPLIFY THEM, TRANSMIT THEM BY CABLE OR MICROWAVE,
AND DISTRIBUTE THEM BY WIRE TO THEIR SUBSCRIBERS' RECEIVERS.  IN 1959
THE FEDERAL COMMUNICATIONS COMMISSION (FCC), ALTHOUGH IT FOUND CATV
"RELATED TO INTERSTATE TRANSMISSION," STATED THAT IT "DID NOT INTEND TO
REGULATE CATV," AND THAT IT PREFERRED TO RECOMMEND LEGISLATION WHICH
WOULD IMPOSE SPECIFIED REQUIREMENTS UPON CATV SYSTEMS.  SUCH
LEGISLATION WAS PROPOSED BUT NOT ENACTED.  THE CATV INDUSTRY HAS HAD AN
EXPLOSIVE GROWTH, HAS INCREASED SUBSTANTIALLY THE SIGNAL TRANSMISSION
RANGE, AND HAS BEEN BRINGING SIGNALS FROM SELECTED BROADCASTING AREAS
INTO METROPOLITAN CENTERS.  SINCE 1960 THE FCC HAS GRADUALLY ASSERTED
JURISDICTION OVER CATV, AND IN 1965, FOLLOWING HEARINGS, THE FCC ISSUED
REVISED RULES, APPLICABLE TO CABLE AND MICROWAVE CATV SYSTEMS, TO
GOVERN THE CARRIAGE OF LOCAL SIGNALS AND THE NONDUPLICATION OF LOCAL
PROGRAMMING.  THE FCC BANNED CATV TRANSMISSION OF DISTANT SIGNALS INTO
THE 100 LARGEST TELEVISION MARKETS (EXCEPT FOR SUCH SERVICE AS EXISTED
ON FEBRUARY 15, 1966, OR UNLESS THE FCC FOUND THE SERVICE WOULD "BE
CONSISTENT WITH THE PUBLIC INTEREST"), AND CREATED SUMMARY PROCEDURES
FOR APPLICATIONS FOR SEPARATE OR ADDITIONAL RELIEF.  PETITIONER MIDWEST
TELEVISION APPLIED FOR SPECIAL RELIEF, ALLEGING THAT RESPONDENTS' CATV
SYSTEMS TRANSMITTED SIGNALS FROM LOS ANGELES INTO THE SAN DIEGO AREA,
ADVERSELY AFFECTING MIDWEST'S SAN DIEGO STATION.  THE FCC, AFTER
CONSIDERING THE PETITION AND RESPONSIVE PLEADINGS, RESTRICTED THE
EXPANSION OF RESPONDENTS' SERVICE IN AREAS IN WHICH THEY HAD NOT
OPERATED ON FEBRUARY 15, 1966, PENDING HEARINGS ON THE MERITS OF
MIDWEST'S COMPLAINT.  THE COURT OF APPEALS HELD THAT THE FCC LACKED
AUTHORITY UNDER THE COMMUNICATIONS ACT OF 1934 TO ISSUE SUCH ORDER. 
HELD: 

1.  THE FCC HAS AUTHORITY UNDER THE ACT TO REGULATE CATV SYSTEMS. 
PP. 167-178. 

(A) THE FCC HAS BROAD AUTHORITY OVER "ALL INTERSTATE AND FOREIGN
COMMUNICATION BY WIRE OR RADIO," WHICH INCLUDES CATV SYSTEMS AS THEY
ARE ENCOMPASSED WITHIN THE TERM "COMMUNICATION BY WIRE OR RADIO," AND
THERE IS NO DOUBT THEY ARE ENGAGED IN INTERSTATE COMMUNICATION.  PP.
167-169. 

(B) THE FCC'S REQUESTS FOR LEGISLATION HAVE NO SIGNIFICANT BEARING
ON THE RESOLUTION OF THIS ISSUE.  PP. 169-171. 

(C) THE FCC HAS REASONABLY FOUND THAT THE SUCCESSFUL PERFORMANCE OF
ITS RESPONSIBILITIES FOR THE ORDERLY DEVELOPMENT OF LOCAL TELEVISION
BROADCASTING DEMANDS PROMPT AND EFFICACIOUS REGULATION OF CATV, AND IN
THE ABSENCE OF COMPELLING EVIDENCE THAT CONGRESS INTENDED OTHERWISE,
ADMINISTRATIVE ACTION IMPERATIVE FOR AN AGENCY'S ULTIMATE PURPOSES
SHOULD NOT BE PROHIBITED.  PERMIAN BASIN AREA RATE CASES, 390 U.S. 747,
780.  PP. 172-178. 

(D) THE FCC'S AUTHORITY RECOGNIZED HERE IS RESTRICTED TO THAT
REASONABLY ANCILLARY TO THE EFFECTIVE PERFORMANCE OF ITS
RESPONSIBILITIES FOR THE REGULATION OF TELEVISION BROADCASTING.  P.
178. 

2.  THE FCC HAD AUTHORITY TO ISSUE THE PROHIBITORY ORDER IN THIS
CASE.  PP. 178-181. 

(A) THE ORDER WAS DESIGNED MERELY TO PRESERVE THE SITUATION AS OF
THE TIME OF ISSUANCE, AND IT WAS NOT, IN FORM OR FUNCTION, A CEASE-AND
DESIST ORDER THAT MUST ISSUE UNDER SEC. 312 OF THE ACT, AND WHICH
REQUIRES A HEARING OR A WAIVER OF THE RIGHT THERETO.  PP. 179-180. 

(B) THE FCC HAS AUTHORITY TO ISSUE "SUCH ORDERS . . . AS MAY BE
NECESSARY IN THE EXECUTION OF ITS FUNCTIONS," AND THIS ORDER FOR
INTERIM RELIEF PENDING HEARINGS TO DETERMINE APPROPRIATE ACTION, DID
NOT EXCEED OR ABUSE ITS AUTHORITY UNDER THE ACT.  PP. 180-181. 

378 F.2D 118, REVERSED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THESE CASES STEM FROM PROCEEDINGS CONDUCTED BY THE FEDERAL
COMMUNICATIONS COMMISSION AFTER REQUESTS BY MIDWEST TELEVISION /1A/
FOR RELIEF UNDER SECS. 74.1107 /2/  AND 74.1109 /3/  OF THE RULES
PROMULGATED BY THE COMMISSION FOR THE REGULATION OF COMMUNITY ANTENNA
TELEVISION (CATV) SYSTEMS.  MIDWEST AVERRED THAT RESPONDENTS' CATV
SYSTEMS TRANSMITTED THE SIGNALS OF LOS ANGELES BROADCASTING STATIONS
INTO THE SAN DIEGO AREA, AND THEREBY HAD, INCONSISTENTLY WITH THE
PUBLIC INTEREST, ADVERSELY AFFECTED MIDWEST'S SAN DIEGO STATION.  /4/
MIDWEST SOUGHT AN APPROPRIATE ORDER LIMITING THE CARRIAGE OF SUCH
SIGNALS BY RESPONDENTS'  SYSTEMS.  AFTER CONSIDERATION OF THE PETITION
AND OF VARIOUS RESPONSIVE PLEADINGS, THE COMMISSION RESTRICTED THE
EXPANSION OF RESPONDENTS'  SERVICE IN AREAS IN WHICH THEY HAD NOT
OPERATED ON FEBRUARY 15, 1966, PENDING HEARINGS TO BE CONDUCTED ON THE
MERITS OF MIDWEST'S COMPLAINTS.  /5/  4 F.C.C.2D 612.  ON PETITIONS FOR
REVIEW, THE COURT OF APPEALS FOR THE NINTH CIRCUIT HELD THAT THE
COMMISSION LACKS AUTHORITY UNDER THE COMMUNICATIONS ACT OF 1934, 48
STAT. 1064, 47 U.S.C. 151, TO ISSUE SUCH AN ORDER.  /6/  378 F.2D 118. 
WE GRANTED CERTIORARI TO CONSIDER THIS IMPORTANT QUESTION OF REGULATORY
AUTHORITY.  /7/  389 U.S. 911.  FOR REASONS THAT FOLLOW, WE REVERSE. 

        I 

CATV SYSTEMS RECEIVE THE SIGNALS OF TELEVISION BROADCASTING
STATIONS, AMPLIFY THEM, TRANSMIT THEM BY CABLE OR MICROWAVE, AND
ULTIMATELY DISTRIBUTE THEM BY WIRE TO THE RECEIVERS OF THEIR
SUBSCRIBERS.  /8/  CATV SYSTEMS CHARACTERISTICALLY DO NOT PRODUCE THEIR
OWN PROGRAMMING, /9/  AND DO NOT RECOMPENSE PRODUCERS OR BROADCASTERS
FOR USE OF THE PROGRAMMING WHICH THEY RECEIVE AND REDISTRIBUTE.  UNLIKE
ORDINARY BROADCASTING STATIONS, CATV SYSTEMS COMMONLY CHARGE THEIR
SUBSCRIBERS INSTALLATION AND OTHER FEES.  /11/ 

THE CATV INDUSTRY HAS GROWN RAPIDLY SINCE THE ESTABLISHMENT OF THE
FIRST COMMERCIAL SYSTEM IN 1950.  /12/  IN THE LATE 1950'S, SOME 50 NEW
SYSTEMS WERE ESTABLISHED EACH YEAR; BY 1959, THERE WERE 550 "NATIONALLY
KNOWN AND IDENTIFIED" SYSTEMS SERVING A TOTAL AUDIENCE OF 1,500,000 TO
2,000,000 PERSONS.  /13/  IT HAS BEEN MORE RECENTLY ESTIMATED THAT "NEW
SYSTEMS ARE BEING FOUNDED AT THE RATE OF MORE THAN ONE PER DAY, AND . .
. SUBSCRIBERS . . . SIGNED ON AT THE RATE OF 15,000 PER MONTH."  /14/
BY LATE 1965, IT WAS REPORTED THAT THERE WERE 1,847 OPERATING CATV
SYSTEMS, THAT 758 OTHERS WERE FRANCHISED BUT NOT YET IN OPERATION, AND
THAT THERE WERE 938 APPLICATIONS FOR ADDITIONAL FRANCHISES.  /15/  THE
STATISTICAL EVIDENCE IS INCOMPLETE, BUT, AS THE COMMISSION HAS
OBSERVED, "WHATEVER THE ESTIMATE, CATV GROWTH IS CLEARLY EXPLOSIVE IN
NATURE."  SECOND REPORT AND ORDER, 2 F.C.C.2D 725, 738, N. 15. 

CATV SYSTEMS PERFORM EITHER OR BOTH OF TWO FUNCTIONS.  FIRST, THEY
MAY SUPPLEMENT BROADCASTING BY FACILITATING SATISFACTORY RECEPTION OF
LOCAL STATIONS IN ADJACENT AREAS IN WHICH SUCH RECEPTION WOULD NOT
OTHERWISE BE POSSIBLE; AND SECOND, THEY MAY TRANSMIT TO SUBSCRIBERS THE
SIGNALS OF DISTANT STATIONS ENTIRELY BEYOND THE RANGE OF LOCAL
ANTENNAE.  AS THE NUMBER AND SIZE OF CATV SYSTEMS HAVE INCREASED, THEIR
PRINCIPAL FUNCTION HAS MORE FREQUENTLY BECOME THE IMPORTATION OF
DISTANT SIGNALS.  /16/  IN 1959, ONLY 50 SYSTEMS EMPLOYED MICROWAVE
RELAYS, AND THE MAXIMUM DISTANCE OVER WHICH SIGNALS WERE TRANSMITTED
WAS 300 MILES; BY 1964, 250 SYSTEMS USED MICROWAVE, AND THE
TRANSMISSION DISTANCES SOMETIMES EXCEEDED 665 MILES.  FIRST REPORT AND
ORDER, 38 F.C.C. 683, 709.  THERE ARE EVIDENTLY NOW PLANS "TO CARRY THE
PROGRAMING OF NEW YORK CITY INDEPENDENT STATIONS BY CABLE TO . . .
UPSTATE NEW YORK, TO PHILADELPHIA, AND EVEN AS FAR AS DAYTON."  /17/
AND SEE CHANNEL 9 SYRACUSE, INC. V. F.C.C., 128 U.S.APP.D.C. 187, 385
F.2D 969; HUBBARD BROADCASTING, INC. V. F.C.C., 128 U.S.APP.D.C. 197,
385 F.2D 979.  THUS, "WHILE THE CATV INDUSTRY ORIGINATED IN SPARSELY
SETTLED AREAS AND AREAS OF ADVERSE TERRAIN . . . IT IS NOW SPREADING TO
METROPOLITAN CENTERS . . . ."  FIRST REPORT AND ORDER, SUPRA, AT 709. 
CATV SYSTEMS, FORMERLY NO MORE THAN LOCAL AUXILIARIES TO BROADCASTING,
PROMISE FOR THE FUTURE TO PROVIDE A NATIONAL COMMUNICATIONS SYSTEM, IN
WHICH SIGNALS FROM SELECTED BROADCASTING CENTERS WOULD BE TRANSMITTED
TO METROPOLITAN AREAS THROUGHOUT THE COUNTRY.  /18/ 

THE COMMISSION HAS ON VARIOUS OCCASIONS ATTEMPTED TO ASSESS THE
RELATIONSHIP BETWEEN COMMUNITY ANTENNA TELEVISION SYSTEMS AND ITS
CONCEDED REGULATORY FUNCTIONS.  IN 1959, IT COMPLETED AN EXTENDED
INVESTIGATION OF SEVERAL AUXILIARY BROADCASTING SERVICES, INCLUDING
CATV.  CATV AND TV REPEATER SERVICES26 F.C.C. 403.  ALTHOUGH IT FOUND
THAT CATV IS "RELATED TO INTERSTATE TRANSMISSION" THE COMMISSION
REASONED THAT CATV SYSTEMS ARE NEITHER COMMON CARRIERS NOR
BROADCASTERS, AND THEREFORE ARE WITHIN NEITHER OF THE PRINCIPAL
REGULATORY CATEGORIES CREATED BY THE COMMUNICATIONS ACT.  ID., AT 427
428.  THE COMMISSION DECLARED THAT IT HAD NOT BEEN GIVEN PLENARY
AUTHORITY OVER "ANY AND ALL ENTERPRISES WHICH HAPPEN TO BE CONNECTED
WITH ONE OF THE MANY ASPECTS OF COMMUNICATIONS."  ID., AT 429.  IT
REFUSED TO PREMISE REGULATION OF CATV UPON ASSERTEDLY ADVERSE
CONSEQUENCES FOR BROADCASTING, BECAUSE IT COULD NOT "DETERMINE WHERE
THE IMPACT TAKES EFFECT, ALTHOUGH WE RECOGNIZE THAT IT MAY WELL
EXIST."  ID., AT 431. 

THE COMMISSION INSTEAD DECLARED THAT IT WOULD FORTHWITH SEEK
APPROPRIATE LEGISLATION "TO CLARIFY THE SITUATION."  ID., AT 438.  SUCH
LEGISLATION WAS INTRODUCED IN THE SENATE IN 1959, /19/  FAVORABLY
REPORTED, /20/  AND DEBATED ON THE SENATE FLOOR.  /21/  THE BILL WAS,
HOWEVER, ULTIMATELY RETURNED TO COMMITTEE.  /22/ 

DESPITE ITS INABILITY TO OBTAIN AMENDATORY LEGISLATION, THE
COMMISSION HAS, SINCE 1960, GRADUALLY ASSERTED JURISDICTION OVER CATV. 
IT FIRST PLACED RESTRICTIONS UPON THE ACTIVITIES OF COMMON CARRIER
MICROWAVE FACILITIES THAT SERVE CATV SYSTEMS.  SEE CARTER MOUNTAIN
TRANSMISSION CORP., 32 F.C.C. 459, AFF'D, 321 F.2D 359.  FINALLY, THE
COMMISSION IN 1962 CONDUCTED A RULE-MAKING PROCEEDING IN WHICH IT RE
EVALUATED THE SIGNIFICANCE OF CATV FOR ITS REGULATORY
RESPONSIBILITIES.  FIRST ORDER AND REPORT, SUPRA.  THE PROCEEDING WAS
EXPLICITLY RESTRICTED TO THOSE SYSTEMS THAT ARE SERVED BY MICROWAVE,
BUT THE COMMISSION'S CONCLUSIONS PLAINLY WERE MORE WIDELY RELEVANT. 
THE COMMISSION FOUND THAT "THE LIKELIHOOD OR PROBABILITY OF (CATV'S)
ADVERSE IMPACT UPON POTENTIAL AND EXISTING SERVICE HAS BECOME TOO
SUBSTANTIAL TO BE DISMISSED."  ID., AT 713-714.  IT REASONED THAT THE
IMPORTATION OF DISTANT SIGNALS INTO THE SERVICE AREAS OF LOCAL STATIONS
NECESSARILY CREATES "SUBSTANTIAL COMPETITION" FOR LOCAL BROADCASTING. 
ID., AT 707.  THE COMMISSION ACKNOWLEDGED THAT IT COULD NOT "MEASURE
PRECISELY THE DEGREE OF . . . IMPACT," BUT FOUND THAT "CATV COMPETITION
CAN HAVE A SUBSTANTIAL NEGATIVE EFFECT UPON STATION AUDIENCE AND
REVENUES . . . ."  ID., AT 710-711. 

THE COMMISSION ATTEMPTED TO "ACCOMMODATE)" THE INTERESTS OF CATV AND
OF LOCAL BROADCASTING BY THE IMPOSITION OF TWO RULES.  ID., AT 713. 
FIRST, CATV SYSTEMS WERE REQUIRED TO TRANSMIT TO THEIR SUBSCRIBERS THE
SIGNALS OF ANY STATION INTO WHOSE SERVICE AREA THEY HAVE BROUGHT
COMPETING SIGNALS.  /23/  SECOND, CATV SYSTEMS WERE FORBIDDEN TO
DUPLICATE THE PROGRAMMING OF SUCH LOCAL STATIONS FOR PERIODS OF 15 DAYS
BEFORE AND AFTER A LOCAL BROADCAST.  SEE GENERALLY FIRST REPORT AND
ORDER, SUPRA, AT 719-730.  THESE CARRIAGE AND NONDUPLICATION RULES WERE
EXPECTED TO "INSURE) MANY STATIONS' ABILITY TO MAINTAIN THEMSELVES AS
THEIR AREAS' OUTLETS FOR HIGHLY POPULAR NETWORK AND OTHER PROGRAMS . .
. ."  ID., AT 715. 

THE COMMISSION IN 1965 ISSUED ADDITIONAL NOTICES OF INQUIRY AND
PROPOSED RULE-MAKING, BY WHICH IT SOUGHT TO DETERMINE WHETHER ALL FORMS
OF CATV, INCLUDING THOSE SERVED ONLY BY CABLE, COULD PROPERLY BE
REGULATED UNDER THE COMMUNICATIONS ACT.  1 F.C.C.2D 453.  AFTER FURTHER
HEARINGS, THE COMMISSION HELD THAT THE ACT CONFERS ADEQUATE REGULATORY
AUTHORITY OVER ALL CATV SYSTEMS.  SECOND REPORT AND ORDER, SUPRA, AT
728-734.  IT PROMULGATED REVISED RULES, APPLICABLE BOTH TO CABLE AND TO
MICROWAVE CATV SYSTEMS, TO GOVERN THE CARRIAGE OF LOCAL SIGNALS AND THE
NONDUPLICATION OF LOCAL PROGRAMMING.  FURTHER, THE COMMISSION FORBADE
THE IMPORTATION BY CATV OF DISTANT SIGNALS INTO THE 100 LARGEST
TELEVISION MARKETS, EXCEPT INSOFAR AS SUCH SERVICE WAS OFFERED ON
FEBRUARY 15, 1966, UNLESS THE COMMISSION HAS PREVIOUSLY FOUND THAT IT
"WOULD BE CONSISTENT WITH THE PUBLIC INTEREST," ID., AT 782; SEE
GENERALLY ID., AT 781-785, "PARTICULARLY THE ESTABLISHMENT AND HEALTHY
MAINTENANCE OF TELEVISION BROADCAST SERVICE IN THE AREA," 47 CFR
74.1107(C).  FINALLY, THE COMMISSION CREATED "SUMMARY, NONHEARING
PROCEDURES" FOR THE DISPOSITION OF APPLICATIONS FOR SEPARATE OR
ADDITIONAL RELIEF.  2 F.C.C.2D, AT 764; 47 CFR 74.1109.  THIRTEEN DAYS
AFTER THE COMMISSION'S ADOPTION OF THE SECOND REPORT, MIDWEST INITIATED
THESE PROCEEDINGS BY THE SUBMISSION OF ITS PETITION FOR SPECIAL
RELIEF. 

        II. 

WE MUST FIRST EMPHASIZE THAT QUESTIONS AS TO THE VALIDITY OF THE
SPECIFIC RULES PROMULGATED BY THE COMMISSION FOR THE REGULATION OF CATV
ARE NOT NOW BEFORE THE COURT.  THE ISSUES IN THESE CASES ARE ONLY TWO:
WHETHER THE COMMISSION HAS AUTHORITY UNDER THE COMMUNICATIONS ACT TO
REGULATE CATV SYSTEMS, AND, IF IT HAS, WHETHER IT HAS, IN ADDITION,
AUTHORITY TO ISSUE THE PROHIBITORY ORDER HERE IN QUESTION.  /24/ 

THE COMMISSION'S AUTHORITY TO REGULATE BROADCASTING AND OTHER
COMMUNICATIONS IS DERIVED FROM THE COMMUNICATIONS ACT OF 1934, AS
AMENDED.  THE ACT'S PROVISIONS ARE EXPLICITLY APPLICABLE TO "ALL
INTERSTATE AND FOREIGN COMMUNICATION BY WIRE OR RADIO . . . ."  47
U.S.C. 152(A).  THE COMMISSION'S RESPONSIBILITIES ARE NO MORE NARROW:
IT IS REQUIRED TO ENDEAVOR TO "MAKE AVAILABLE . . . TO ALL THE PEOPLE
OF THE UNITED STATES A RAPID, EFFICIENT, NATION-WIDE, AND WORLD-WIDE
WIRE AND RADIO COMMUNICATION SERVICE . . . ."  47 U.S.C. 151.  THE
COMMISSION WAS EXPECTED TO SERVE AS THE "SINGLE GOVERNMENT AGENCY"
/25/  WITH "UNIFIED JURISDICTION"  /26/  AND "REGULATORY POWER OVER ALL
FORMS OF ELECTRICAL COMMUNICATION, WHETHER BY TELEPHONE, TELEGRAPH,
CABLE, OR RADIO."  /27/  IT WAS FOR THIS PURPOSE GIVEN "BROAD
AUTHORITY."  /28/  AS THIS COURT EMPHASIZED IN AN EARLIER CASE, THE
ACT'S TERMS, PURPOSES, AND HISTORY ALL INDICATE THAT CONGRESS
"FORMULATED A UNIFIED AND COMPREHENSIVE REGULATORY SYSTEM FOR THE
(BROADCASTING) INDUSTRY."  F.C.C. V. POTTSVILLE BROADCASTING CO., 309
U.S. 134, 137. 

RESPONDENTS DO NOT SUGGEST THAT CATV SYSTEMS ARE NOT WITHIN THE TERM
"COMMUNICATION BY WIRE OR RADIO."  INDEED, SUCH COMMUNICATIONS ARE
DEFINED BY THE ACT SO AS TO ENCOMPASS "THE TRANSMISSION OF . . .
SIGNALS, PICTURES, AND SOUNDS OF ALL KINDS," WHETHER BY RADIO OR CABLE,
"INCLUDING ALL INSTRUMENTALITIES, FACILITIES, APPARATUS, AND SERVICES
(AMONG OTHER THINGS, THE RECEIPT, FORWARDING, AND DELIVERY OF
COMMUNICATIONS) INCIDENTAL TO SUCH TRANSMISSION."  47 U.S.C. 153(A),
(B).  THESE VERY GENERAL TERMS AMPLY SUFFICE TO REACH RESPONDENTS'
ACTIVITIES. 

NOR CAN WE DOUBT THAT CATV SYSTEMS ARE ENGAGED IN INTERSTATE
COMMUNICATION, EVEN WHERE, AS HERE, THE INTERCEPTED SIGNALS EMANATE
FROM STATIONS LOCATED WITHIN THE SAME STATE IN WHICH THE CATV SYSTEM
OPERATES.  /29/  WE MAY TAKE NOTICE THAT TELEVISION BROADCASTING
CONSISTS IN VERY LARGE PART OF PROGRAMMING DEVISED FOR, AND DISTRIBUTED
TO, NATIONAL AUDIENCES; RESPONDENTS THUS ARE ORDINARILY EMPLOYED IN THE
SIMULTANEOUS RETRANSMISSION OF COMMUNICATIONS THAT HAVE VERY OFTEN
ORIGINATED IN OTHER STATES.  THE STREAM OF COMMUNICATION IS ESSENTIALLY
UNINTERRUPTED AND PROPERLY INDIVISIBLE.  TO CATEGORIZE RESPONDENTS'
ACTIVITIES AS INTRASTATE WOULD DISREGARD THE CHARACTER OF THE
TELEVISION INDUSTRY, AND SERVE MERELY TO PREVENT THE NATIONAL
REGULATION THAT "IS NOT ONLY APPROPRIATE BUT ESSENTIAL TO THE EFFICIENT
USE OF RADIO FACILITIES."  FEDERAL RADIO COMM'N V. NELSON BROS. CO.,
289 U.S. 266, 279. 

NONETHELESS, RESPONDENTS URGE THAT THE COMMUNICATIONS ACT, PROPERLY
UNDERSTOOD, DOES NOT PERMIT THE REGULATION OF CATV SYSTEMS.  FIRST,
THEY EMPHASIZE THAT THE COMMISSION IN 1959 AND AGAIN IN 1966 /30/
SOUGHT LEGISLATION THAT WOULD HAVE EXPLICITLY AUTHORIZED SUCH
REGULATION, AND THAT ITS EFFORTS WERE UNSUCCESSFUL.  IN THE
CIRCUMSTANCES HERE, HOWEVER, THIS CANNOT BE DISPOSITIVE.  THE
COMMISSION'S REQUESTS FOR LEGISLATION EVIDENTLY REFLECTED IN EACH
INSTANCE BOTH ITS UNCERTAINTY AS TO THE PROPER WIDTH OF ITS AUTHORITY
AND ITS UNDERSTANDABLE PREFERENCE FOR MORE DETAILED POLICY GUIDANCE
THAN THE COMMUNICATIONS ACT NOW PROVIDES.  /31/  WE HAVE RECOGNIZED
THAT ADMINISTRATIVE AGENCIES SHOULD, IN SUCH SITUATIONS, BE ENCOURAGED
TO SEEK FROM CONGRESS CLARIFICATION OF THE PERTINENT STATUTORY
PROVISIONS.  WONG YANG SUNG V. MCGRATH, 339 U.S. 33, 47. 

NOR CAN WE OBTAIN SIGNIFICANT ASSISTANCE FROM THE VARIOUS
EXPRESSIONS OF CONGRESSIONAL OPINION THAT FOLLOWED THE COMMISSION'S
REQUESTS.  IN THE FIRST PLACE, THE VIEWS OF ONE CONGRESS AS TO THE
CONSTRUCTION OF A STATUTE ADOPTED MANY YEARS BEFORE BY ANOTHER CONGRESS
HAVE "VERY LITTLE, IF ANY, SIGNIFICANCE."  RAINWATER V. UNITED STATES,
356 U.S. 590, 593; UNITED STATES V. PRICE, 361 U.S. 304, 313; HAYNES V.
UNITED STATES, 390 U.S. 85 87, N. 4.  FURTHER, IT IS FAR FROM CLEAR
THAT CONGRESS BELIEVED, AS IT CONSIDERED THESE REQUESTS FOR
LEGISLATION, THAT THE COMMISSION DID NOT ALREADY POSSESS REGULATORY
AUTHORITY OVER CATV.  IN 1959, THE PROPOSED LEGISLATION WAS PRECEDED BY
THE COMMISSION'S DECLARATIONS THAT IT "DID NOT INTEND TO REGULATE
CATV," AND THAT IT PREFERRED TO RECOMMEND THE ADOPTION OF LEGISLATION
THAT WOULD IMPOSE SPECIFIED REQUIREMENTS UPON CATV SYSTEMS.  /32/
CONGRESS MAY WELL HAVE BEEN MORE TROUBLED BY THE COMMISSION'S
UNWILLINGNESS TO REGULATE THAN BY ANY FEARS THAT IT WAS UNABLE TO
REGULATE.  /33/  IN 1966, THE COMMISSION INFORMED CONGRESS THAT IT
DESIRED LEGISLATION IN ORDER TO "CONFIRM (ITS) JURISDICTION AND TO
ESTABLISH SUCH BASIC NATIONAL POLICY AS (CONGRESS) DEEMS APPROPRIATE." 
H.R. REP. NO. 1635, 89TH CONG., 2D SESS., 16.  IN RESPONSE, THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE SAID MERELY THAT IT DID
NOT "EITHER AGREE OR DISAGREE" WITH THE JURISDICTIONAL CONCLUSIONS OF
THE SECOND REPORT, AND THAT "THE QUESTION OF WHETHER OR NOT . . . THE
COMMISSION HAS AUTHORITY UNDER PRESENT LAW TO REGULATE CATV SYSTEMS IS
FOR THE COURTS TO DECIDE . . . ."  ID., AT 9.  IN THESE CIRCUMSTANCES,
WE CANNOT DERIVE FROM THE COMMISSION'S REQUESTS FOR LEGISLATION
ANYTHING OF SIGNIFICANT BEARING ON THE CONSTRUCTION QUESTION NOW BEFORE
US. 

SECOND, RESPONDENTS URGE THAT SEC. 152(A) /34/  DOES NOT
INDEPENDENTLY CONFER REGULATORY AUTHORITY UPON THE COMMISSION, BUT
INSTEAD MERELY PRESCRIBES THE FORMS OF COMMUNICATION TO WHICH THE ACT'S
OTHER PROVISIONS MAY SEPARATELY BE MADE APPLICABLE.  RESPONDENTS
EMPHASIZE THAT THE COMMISSION DOES NOT CONTEND EITHER THAT CATV SYSTEMS
ARE COMMON CARRIERS, AND THUS WITHIN TITLE II OF THE ACT, OR THAT THEY
ARE BROADCASTERS, AND THUS WITHIN TITLE III.  THEY CONCLUDE THAT CATV,
WITH CERTAIN OF THE CHARACTERISTICS BOTH OF BROADCASTING AND OF COMMON
CARRIERS, BUT WITH ALL OF THE CHARACTERISTICS OF NEITHER, ELUDES
ALTOGETHER THE ACT'S GRASP. 

WE CANNOT CONSTRUE THE ACT SO RESTRICTIVELY.  NOTHING IN THE
LANGUAGE OF SEC. 152(A), IN THE SURROUNDING LANGUAGE, OR IN THE ACT'S
HISTORY OR PURPOSES LIMITS THE COMMISSION'S AUTHORITY TO THOSE
ACTIVITIES AND FORMS OF COMMUNICATION THAT ARE SPECIFICALLY DESCRIBED
BY THE ACT'S OTHER PROVISIONS.  THE SECTION ITSELF STATES MERELY THAT
THE 'PROVISIONS OF (THE ACT) SHALL APPLY TO ALL INTERSTATE AND FOREIGN
COMMUNICATION BY WIRE OR RADIO . . . ."  SIMILARLY, THE LEGISLATIVE
HISTORY INDICATES THAT THE COMMISSION WAS GIVEN "REGULATORY POWER OVER
ALL FORMS OF ELECTRICAL COMMUNICATION . . . ."  S. REP. NO. 781, 73D
CONG., 2D SESS., 1.  CERTAINLY CONGRESS COULD NOT IN 1934 HAVE FORESEEN
THE DEVELOPMENT OF COMMUNITY ANTENNA TELEVISION SYSTEMS, BUT IT SEEMS
TO US THAT IT WAS PRECISELY BECAUSE CONGRESS WISHED "TO MAINTAIN,
THROUGH APPROPRIATE ADMINISTRATIVE CONTROL, A GRIP ON THE DYNAMIC
ASPECTS OF RADIO TRANSMISSION," F.C.C. V. POTTSVILLE BROADCASTING CO.,
SUPRA, AT 138, THAT IT CONFERRED UPON THE COMMISSION A "UNIFIED
JURISDICTION"  /35/  AND "BROAD AUTHORITY."  /36/  THUS, "(UNDERLYING
THE WHOLE (COMMUNICATIONS ACT) IS RECOGNITION OF THE RAPIDLY
FLUCTUATING FACTORS CHARACTERISTIC OF THE EVOLUTION OF BROADCASTING AND
OF THE CORRESPONDING REQUIREMENT THAT THE ADMINISTRATIVE PROCESS
POSSESS SUFFICIENT FLEXIBILITY TO ADJUST ITSELF TO THESE FACTORS." 
F.C.C. V. POTTSVILLE BROADCASTING CO., SUPRA, AT 138.  CONGRESS IN 1934
ACTED IN A FIELD THAT WAS DEMONSTRABLY "BOTH NEW AND DYNAMIC," AND IT
THEREFORE GAVE THE COMMISSION "A COMPREHENSIVE MANDATE," WITH "NOT
NIGGARDLY BUT EXPANSIVE POWERS."  NATIONAL BROADCASTING CO. V. UNITED
STATES, 319 U.S. 190, 219.  WE HAVE FOUND NO REASON TO BELIEVE THAT
SEC. 152 DOES NOT, AS ITS TERMS SUGGEST, CONFER REGULATORY AUTHORITY
OVER "ALL INTERSTATE . . . COMMUNICATION BY WIRE OR RADIO."  /37/ 

MOREOVER, THE COMMISSION HAS REASONABLY CONCLUDED THAT REGULATORY
AUTHORITY OVER CATV IS IMPERATIVE IF IT IS TO PERFORM WITH APPROPRIATE
EFFECTIVENESS CERTAIN OF ITS OTHER RESPONSIBILITIES.  CONGRESS HAS
IMPOSED UPON THE COMMISSION THE "OBLIGATION OF PROVIDING A WIDELY
DISPERSED RADIO AND TELEVISION SERVICE,"  /38/  WITH A "FAIR,
EFFICIENT, AND EQUITABLE DISTRIBUTION" OF SERVICE AMONG THE "SEVERAL
STATES AND COMMUNITIES."  47 U.S.C. 307(B).  THE COMMISSION HAS, FOR
THIS AND OTHER PURPOSES, BEEN GRANTED AUTHORITY TO ALLOCATE
BROADCASTING ZONES OR AREAS, AND TO PROVIDE REGULATIONS "AS IT MAY DEEM
NECESSARY" TO PREVENT INTERFERENCE AMONG THE VARIOUS STATIONS.  47
U.S.C. 303(F), (H).  THE COMMISSION HAS CONCLUDED, AND CONGRESS HAS
AGREED, THAT THESE OBLIGATIONS REQUIRE FOR THEIR SATISFACTION THAT
CREATION OF A SYSTEM OF LOCAL BROADCASTING STATIONS, SUCH THAT "ALL
COMMUNITIES OF APPRECIABLE SIZE (WILL) HAVE AT LEAST ONE TELEVISION
STATION AS AN OUTLET FOR LOCAL SELF-EXPRESSION."  /39/  IN TURN, THE
COMMISSION HAS HELD THAT AN APPROPRIATE SYSTEM OF LOCAL BROADCASTING
MAY BE CREATED ONLY IF TWO SUBSIDIARY GOALS ARE REALIZED.  FIRST,
SIGNIFICANTLY WIDER USE MUST BE MADE OF THE AVAILABLE ULTRA-HIGH
FREQUENCY CHANNELS.  /40/  SECOND, COMMUNITIES MUST BE ENCOURAGED "TO
LAUNCH SOUND AND ADEQUATE PROGRAMS TO UTILIZE THE TELEVISION CHANNELS
NOW RESERVED FOR EDUCATIONAL PURPOSES."  /41/  THESE SUBSIDIARY GOALS
HAVE RECEIVED THE ENDORSEMENT OF CONGRESS.  /42/ 

THE COMMISSION HAS REASONABLY FOUND THAT THE ACHIEVEMENT OF EACH OF
THESE PURPOSES IS "PLACED IN JEOPARDY BY THE UNREGULATED EXPLOSIVE
GROWTH OF CATV."  H.R. REP. NO. 1635, 89TH CONG., 2D SESS., 7.
ALTHOUGH CATV MAY IN SOME CIRCUMSTANCES MAKE POSSIBLE "THE REALIZATION
OF SOME OF THE (COMMISSION'S) MOST IMPORTANT GOALS," FIRST REPORT AND
ORDER, SUPRA, AT 699, ITS IMPORTATION OF DISTANT SIGNALS INTO THE
SERVICE AREAS OF LOCAL STATIONS MAY ALSO "DESTROY OR SERIOUSLY DEGRADE
THE SERVICE OFFERED BY A TELEVISION BROADCASTER," ID., AT 700, AND THUS
ULTIMATELY DEPRIVE THE PUBLIC OF THE VARIOUS BENEFITS OF A SYSTEM OF
LOCAL BROADCASTING STATIONS.  /43/  IN PARTICULAR, THE COMMISSION
FEARED THAT CATV MIGHT, BY DIVIDING THE AVAILABLE AUDIENCES AND
REVENUES, SIGNIFICANTLY MAGNIFY THE CHARACTERISTICALLY SERIOUS
FINANCIAL DIFFICULTIES OF UHF AND EDUCATIONAL TELEVISION BROADCASTERS. 
/44/  THE COMMISSION ACKNOWLEDGED THAT IT COULD NOT PREDICT WITH
CERTAINTY THE CONSEQUENCES OF UNREGULATED CATV, BUT REASONED THAT ITS
STATUTORY RESPONSIBILITIES DEMAND THAT IT "PLAN IN ADVANCE OF
FORESEEABLE EVENTS, INSTEAD OF WAITING TO REACT TO THEM."  ID., AT
701.  WE ARE AWARE THAT THESE CONSEQUENCES HAVE BEEN VARIOUSLY
ESTIMATED, /45/  BUT MUST CONCLUDE THAT THERE IS SUBSTANTIAL EVIDENCE
THAT THE COMMISSION CANNOT "DISCHARGE ITS OVERALL RESPONSIBILITIES
WITHOUT AUTHORITY OVER THIS IMPORTANT ASPECT OF TELEVISION AND
SERVICE."  STAFF OF SENATE COMM. ON INTERSTATE AND FOREIGN COMMERCE,
85TH CONG., 2D SESS., THE TELEVISION INQUIRY:  THE PROBLEM OF
TELEVISION SERVICE FOR SMALLER COMMUNITIES 19 (COMM. PRINT 1959). 

THE COMMISSION HAS BEEN CHARGED WITH BROAD RESPONSIBILITIES FOR THE
ORDERLY DEVELOPMENT OF AN APPROPRIATE SYSTEM OF LOCAL TELEVISION
BROADCASTING.  THE SIGNIFICANCE OF ITS EFFORTS CAN SCARCELY BE
EXAGGERATED, FOR BROADCASTING IS DEMONSTRABLY A PRINCIPAL SOURCE OF
INFORMATION AND ENTERTAINMENT FOR A GREAT PART OF THE NATION'S
POPULATION.  THE COMMISSION HAS REASONABLY FOUND THAT THE SUCCESSFUL
PERFORMANCE OF THESE DUTIES DEMANDS PROMPT AND EFFICACIOUS REGULATION
OF COMMUNITY ANTENNA TELEVISION SYSTEMS.  WE HAVE ELSEWHERE HELD THAT
WE MAY NOT, "IN THE ABSENCE OF COMPELLING EVIDENCE THAT SUCH WAS
CONGRESS' INTENTION . . . PROHIBIT ADMINISTRATIVE ACTION IMPERATIVE FOR
THE ACHIEVEMENT OF AN AGENCY'S ULTIMATE PURPOSES."  PERMIAN BASIN AREA
RATE CASES, 390 U.S. 747, 780.  COMPARE NATIONAL BROADCASTING CO. V.
UNITED STATES, SUPRA, AT 219-220; AMERICAN TRUCKING ASSNS.  V. UNITED
STATES, 344 U.S. 298, 311.  THERE IS NO SUCH EVIDENCE HERE, AND WE
THEREFORE HOLD THAT THE COMMISSION'S AUTHORITY OVER "ALL INTERSTATE . .
. COMMUNICATION BY WIRE OR RADIO"  PERMITS THE REGULATION OF CATV
SYSTEMS. 

THERE IS NO NEED HERE TO DETERMINE IN DETAIL THE LIMITS OF THE
COMMISSION'S AUTHORITY TO REGULATE CATV.  IT IS ENOUGHT TO EMPHASIZE
THAT THE AUTHORITY WHICH WE RECOGNIZE TODAY UNDER SEC. 152(A) IS
RESTRICTED TO THAT REASONABLY ANCILLARY TO THE EFFECTIVE PERFORMANCE OF
THE COMMISSION'S VARIOUS RESPONSIBILITIES FOR THE REGULATION OF
TELEVISION BROADCASTING.  THE COMMISSION MAY, FOR THESE PURPOSES, ISSUE
"SUCH RULES AND REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS AND
CONDITIONS, NOT INCONSISTENT WITH LAW," AS "PUBLIC CONVENIENCE,
INTEREST, OR NECESSITY REQUIRES."  47 U.S.C. 303(R).  WE EXPRESS NO
VIEWS AS TO THE COMMISSION'S AUTHORITY, IF ANY, TO REGULATE CATV UNDER
ANY OTHER CIRCUMSTANCES OR FOR ANY OTHER PURPOSES. 

        III. 

WE MUST NEXT DETERMINE WHETHER THE COMMISSION HAS AUTHORITY UNDER
THE COMMUNICATIONS ACT TO ISSUE THE PARTICULAR PROHIBITORY ORDER IN
QUESTION IN THESE PROCEEDINGS.  IN ITS SECOND REPORT AND ORDER, SUPRA,
THE COMMISSION CONCLUDED THAT IT SHOULD PROVIDE SUMMARY PROCEDURES FOR
THE DISPOSITION BOTH OF REQUESTS FOR SPECIAL RELIEF AND OF "COMPLAINTS
OR DISPUTES."  ID., AT 764.  IT FEARED THAT IF EVIDENTIARY HEARINGS
WERE IN EVERY SITUATION MANDATORY THEY WOULD PROVE "TIME CONSUMING AND
BURDENSOME" TO THE CATV SYSTEMS AND BROADCASTING STATIONS INVOLVED. 
IBID.  THE COMMISSION CONSIDERED THAT APPROPRIATE NOTICE AND
OPPORTUNITIES FOR COMMENT OR OBJECTION MUST BE GIVEN, AND IT DECLARED
THAT "ADDITIONAL PROCEDURES, SUCH AS ORAL ARGUMENT, EVIDENTIARY
HEARING, OR FURTHER WRITTEN SUBMISSIONS" WOULD BE PERMITTED "IF THEY
APPEAR NECESSARY OR APPROPRIATE . . . ."  IBID.  SEE 47 CFR
74.1109(F).  IT WAS UNDER THE AUTHORITY OF THESE PROVISIONS THAT
MIDWEST SOUGHT, AND THE COMMISSION GRANTED, TEMPORARY RELIEF. 

THE COMMISSION, AFTER EXAMINATION OF VARIOUS RESPONSIVE PLEADINGS
BUT WITHOUT PRIOR HEARINGS, ORDERED THAT RESPONDENTS GENERALLY RESTRICT
THEIR CARRIAGE OF LOS ANGELES SIGNALS TO AREAS SERVED BY THEM ON
FEBRUARY 15, 1966, PENDING HEARINGS TO DETERMINE WHETHER THE CARRIAGE
OF SUCH SIGNALS INTO SAN DIEGO CONTRAVENES THE PUBLIC INTEREST.  THE
ORDER DOES NOT PROHIBIT THE ADDITION OF NEW SUBSCRIBERS WITHIN AREAS
SERVED BY RESPONDENTS ON FEBRUARY 15, 1966; IT DOES NOT PREVENT SERVICE
TO OTHER SUBSCRIBERS WHO BEGAN RECEIVING SERVICE OR WHO SUBMITTED AN
"ACCEPTED SUBSCRIPTION REQUEST" BETWEEN FEBRUARY 15, 1966, AND THE DATE
OF THE COMMISSION'S ORDER; AND IT DOES NOT PRECLUDE THE CARRIAGE OF SAN
DIEGO AND TIJUANA, MEXICO, SIGNALS TO SUBSCRIBERS IN NEW AREAS OF
SERVICE.  4 F.C.C.2D 612, 624-625.  THE ORDER IS THUS DESIGNED SIMPLY
TO PRESERVE THE SITUATION AS IT EXISTED AT THE MOMENT OF ITS ISSUANCE. 

RESPONDENTS URGE THAT THE COMMISSION MAY ISSUE PROHIBITORY ORDERS
ONLY UNDER THE AUTHORITY OF SEC. 312(B), BY WHICH THE COMMISSION IS
EMPOWERED TO ISSUE CEASE-AND-DESIST ORDERS.  WE SHALL ASSUME THAT,
CONSISTENT WITH THE REQUIREMENTS OF SEC. 312(C), CEASE-AND-DESIST
ORDERS ARE PROPER ONLY AFTER HEARING OR WAIVER OF THE RIGHT TO
HEARING.  NONETHELESS, THE REQUIREMENT DOES NOT INVALIDATE THE ORDER
ISSUED IN THIS CASE, FOR WE HAVE CONCLUDED THAT THE PROVISIONS OF SECS.
312(B), (C) ARE INAPPLICABLE HERE.  SECTION 312(B) PROVIDES THAT A
CEASE-AND-DESIST ORDER MAY ISSUE ONLY IF THE RESPONDENT "HAS VIOLATED
OR FAILED TO OBSERVE" A PROVISION OF THE COMMUNICATIONS ACT OR A RULE
OR REGULATION PROMULGATED BY THE COMMISSION UNDER THE ACT'S AUTHORITY. 
RESPONDENTS HERE WERE NOT FOUND TO HAVE VIOLATED OR TO HAVE FAILED TO
OBSERVE ANY SUCH RESTRICTION; THE QUESTION BEFORE THE COMMISSION WAS
INSTEAD ONLY WHETHER AN EXISTING SITUATION SHOULD BE PRESERVED PENDING
A DETERMINATION "WHETHER RESPONDENTS' PRESENT OR PLANNED CATV
OPERATIONS ARE CONSISTENT WITH THE PUBLIC INTEREST AND WHAT, IF ANY,
ACTION SHOULD BE TAKEN BY THE COMMISSION."  4 F.C.C.2D, AT 626.  THE
COMMISSION'S ORDER WAS THUS NOT, IN FORM OR FUNCTION, A CEASE-AND
DESIST ORDER THAT MUST ISSUE UNDER SECS. 312(B), (C).  /46/ 

THE COMMISSION HAS ACKNOWLEDGED THAT, IN THIS AREA OF RAPID AND
SIGNIFICANT CHANGE, THERE MAY BE SITUATIONS IN WHICH ITS GENERALIZED
REGULATIONS ARE INADEQUATE, AND SPECIAL OR ADDITIONAL FORMS OF RELIEF
ARE IMPERATIVE.  IT HAS FOUND THAT THE PRESENT CASE MAY PROVE TO BE
SUCH A SITUATION, AND THAT THE PUBLIC INTEREST DEMANDS "INTERIM RELIEF
. . . LIMITING FURTHER EXPANSION," PENDING HEARINGS TO DETERMINE
APPROPRIATE COMMISSION ACTION.  SUCH ORDERS DO NOT EXCEED THE
COMMISSION'S AUTHORITY.  THIS COURT HAS RECOGNIZED THAT "THE
ADMINISTRATIVE PROCESS (MUST) POSSESS SUFFICIENT FLEXIBILITY TO ADJUST
ITSELF" TO THE "DYNAMIC ASPECTS OF RADIO TRANSMISSION,"  F.C.C. V.
POTTSVILLE BROADCASTING CO., SUPRA, AT 138, AND THAT IT WAS PRECISELY
FOR THAT REASON THAT CONGRESS DECLINED TO "STEREOTYPE) THE POWERS OF
THE COMMISSION TO SPECIFIC DETAILS . . . ."  NATIONAL BROADCASTING CO.
V. UNITED STATES, SUPRA, AT 219.  AND COMPARE AMERICAN TRUCKING ASSNS. 
V. UNITED STATES, 344 U.S. 298, 311; R. A. HOLMAN & CO. V. S.E.C., 112
U.S.APP.D.C. 43, 47-48, 299 F.2D 127, 131-132.  THUS, THE COMMISSION
HAS BEEN EXPLICITLY AUTHORIZED TO ISSUE "SUCH ORDERS, NOT INCONSISTENT
WITH THIS (ACT), AS MAY BE NECESSARY IN THE EXECUTION OF ITS
FUNCTIONS."  47 U.S.C. 154(I).  SEE ALSO 47 U.S.C. 303(R).  IN THESE
CIRCUMSTANCES, WE HOLD THAT THE COMMISSION'S ORDER LIMITING FURTHER
EXPANSION OF RESPONDENTS' SERVICE PENDING APPROPRIATE HEARINGS DID NOT
EXCEED OR ABUSE ITS AUTHORITY UNDER THE COMMUNICATIONS ACT.  AND THERE
IS NO CLAIM THAT ITS PROCEDURE IN THIS RESPECT IS IN ANY WAY
CONSTITUTIONALLY INFIRM. 

THE JUDGMENTS OF THE COURT OF APPEALS ARE REVERSED, AND THE CASES
ARE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
         IT IS SO ORDERED. 

/1/  TOGETHER WITH NO. 428, MIDWEST TELEVISION, INC., ET AL. V.
SOUTHWESTERN CABLE CO. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

/1A/  MIDWEST'S PETITION WAS PREMISED UPON ITS STATUS AS LICENSEE OF
KFMB-TV, SAN DIEGO, CALIFORNIA.  IT IS EVIDENTLY ALSO THE LICENSEE OF
VARIOUS OTHER BROADCASTING STATIONS.  SEE SECOND REPORT AND ORDER, 2
F.C.C.2D 725, 739. 

/2/  47 CFR 74.1107(A) PROVIDES THAT "(NO CATV SYSTEM OPERATING IN A
COMMUNITY WITHIN THE PREDICTED GRADE A CONTOUR OF A TELEVISION
BROADCAST STATION IN THE 100 LARGEST TELEVISION MARKETS SHALL EXTEND
THE SIGNAL OF A TELEVISION BROADCAST STATION BEYOND THE GRADE B CONTOUR
OF THAT STATION, EXCEPT UPON A SHOWING APPROVED BY THE COMMISSION THAT
SUCH EXTENSION WOULD BE CONSISTENT WITH THE PUBLIC INTEREST, AND
SPECIFICALLY THE ESTABLISHMENT AND HEALTHY MAINTENANCE OF TELEVISION
BROADCAST SERVICE IN THE AREA.  COMMISSION APPROVAL OF A REQUEST TO
EXTEND A SIGNAL IN THE FOREGOING CIRCUMSTANCES WILL BE GRANTED WHERE
THE COMMISSION, AFTER CONSIDERATION OF THE REQUEST AND ALL RELATED
MATERIALS IN A FULL EVIDENTIARY HEARING, DETERMINES THAT THE REQUISITE
SHOWING HAS BEEN MADE.  THE MARKET SIZE SHALL BE DETERMINED BY THE
RATING OF THE AMERICAN RESEARCH BUREAU, ON THE BASIS OF THE NET WEEKLY
CIRCULATION FOR THE MOST RECENT YEAR."  SAN DIEGO IS THE NATION'S 54TH
LARGEST TELEVISION MARKET.  MIDWEST TELEVISION, INC., 11 PIKE & FISCHER
RADIO REG.2D 273, 276. 

/3/  47 CFR 74.1109 CREATS "PROCEDURES APPLICABLE TO PETITIONS FOR
WAIVER OF THE RULES, ADDITIONAL OR DIFFERENT REQUIREMENTS AND RULINGS
ON COMPLAINTS OR DISPUTES."  IT PROVIDES THAT PETITIONS FOR SPECIAL
RELIEF "MAY BE SUBMITTED INFORMALLY, BY LETTER, BUT SHALL BE
ACCOMPANIED BY AN AFFIDAVIT OF SERVICE ON ANY CATV SYSTEM, STATION
LICENSEE, PERMITTEE, APPLICANT, OR OTHER INTERESTED PERSON WHO MAY BE
DIRECTLY AFFECTED IF THE RELIEF REQUESTED IN THE PETITION SHOULD BE
GRANTED."  47 CFR 74.1109(B).  PROVISIONS ARE MADE FOR COMMENTS OR
OPPOSITION TO THE PETITION, AND FOR REJOINDERS BY THE PETITIONER.  47
CFR 74.1109(D), (E).  FINALLY, THE COMMISSION "MAY SPECIFY OTHER
PROCEDURES, SUCH AS ORAL ARGUMENT, EVIDENTIARY HEARING, OR FURTHER
WRITTEN SUBMISSIONS DIRECTED TO PARTICULAR ASPECTS, AS IT DEEMS
APPROPRIATE."  47 CFR 74.1109(F). 

/4/  MIDWEST ASSERTED THAT RESPONDENTS' IMPORTATION OF LOS ANGELES
SIGNALS HAD FRAGMENTED THE SAN DIEGO AUDIENCE, THAT THIS WOULD REDUCE
THE ADVERTISING REVENUES OF LOCAL STATIONS, AND THAT THE ULTIMATE
CONSEQUENCE WOULD BE TO TERMINATE OR TO CURTAIL THE SERVICES PROVIDED
IN THE SAN DIEGO AREA BY LOCAL BROADCASTING STATIONS.  RESPONDENTS'
CATV SYSTEMS NOW CARRY THE SIGNALS OF SAN DIEGO STATIONS, BUT MIDWEST
ALLEGED THAT THE QUALITY OF THE SIGNALS, AS THEY ARE CARRIED BY
RESPONDENTS, IS MATERIALLY DEGRADED, AND THAT THIS SERVES ONLY TO
ACCENTUATE THE FRAGMENTATION OF THE LOCAL AUDIENCE. 

/5/  FEBRUARY 15, 1966, IS THE DATE ON WHICH GRANDFATHER RIGHTS
ACCRUED UNDER 47 CFR 74.1107(D).  THE INITIAL DECISION OF THE HEARING
EXAMINER, ISSUED OCTOBER 3, 1967, CONCLUDED THAT PERMANENT RESTRICTIONS
ON THE EXPANSION OF RESPONDENTS' SERVICES WERE UNWARRANTED.  MIDWEST
TELEVISION, INC., 11 PIKE & FISCHER RADIO REG.2D 273.  THE COMMISSION
HAS DECLINED TO TERMINATE ITS INTERIM RESTRICTIONS PENDING
CONSIDERATION BY THE COMMISSION OF THE EXAMINER'S DECISION.  MIDWEST
TELEVISION, INC., ID., AT 721. 

/6/  THE OPINION OF THE COURT OF APPEALS COULD BE UNDERSTOOD TO HOLD
EITHER THAT THE COMMISSION MAY NOT, UNDER THE COMMUNICATIONS ACT,
REGULATE CATV, OR, MORE NARROWLY, THAT IT MAY NOT ISSUE THE PROHIBITORY
ORDER INVOLVED HERE.  WE TAKE THE COURT'S OPINION, IN FACT, TO HAVE
ENCOMPASSED BOTH POSITIONS. 

/7/  WE NOTE THAT THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT HAS CONCLUDED THAT THE COMMUNICATIONS ACT PERMITS THE
REGULATION OF CATV SYSTEMS.  SEE BUCKEYE CABLEVISION, INC. V. F.C.C.,
128 U.S.APP.D.C. 262, 387 F.2D 220. 

/8/  CATV SYSTEMS ARE DEFINED BY THE COMMISSION FOR PURPOSES OF ITS
RULES AS "ANY FACILITY WHICH . . . RECEIVES DIRECTLY OR INDIRECTLY OVER
THE AIR AND AMPLIFIES OR OTHERWISE MODIFIES THE SIGNALS TRANSMITTING
PROGRAMS BROADCAST BY ONE OR MORE TELEVISION STATIONS AND DISTRIBUTES
SUCH SIGNALS BY WIRE OR CABLE TO SUBSCRIBING MEMBERS OF THE PUBLIC WHO
PAY FOR SUCH SERVICE, BUT SUCH TERM SHALL NOT INCLUDE (1) ANY SUCH
FACILITY WHICH SERVES FEWER THAN 50 SUBSCRIBERS, OR (2) ANY SUCH
FACILITY WHICH SERVES ONLY THE RESIDENTS OF ONE OR MORE APARTMENT
DWELLINGS UNDER COMMON OWNERSHIP, CONTROL, OR MANAGEMENT, AND
COMMERCIAL ESTABLISHMENTS LOCATED ON THE PREMISES OF SUCH AN APARTMENT
HOUSE."  47 CFR 74.1101(A). 

/9/  THERE IS, HOWEVER, NO TECHNICAL REASON WHY THEY MAY NOT.  SEE
NOTE, THE WIRE MIRE:  THE FCC AND CATV, 79 HARV.L.REV.  366, 367. 
INDEED, THE EXAMINER WAS INFORMED IN THIS CASE THAT RESPONDENT MISSION
CABLE TV "INTENDS TO COMMENCE PROGRAM ORIGINATION IN THE NEAR FUTURE." 
MIDWEST TELEVISION, INC., SUPRA, AT 283. 

/10/  THE QUESTION WHETHER A CATV SYSTEM INFRINGES THE COPYRIGHT OF
A BROADCASTING STATION BY ITS RECEPTION AND RETRANSMISSION OF THE
STATION'S SIGNALS IS PRESENTED IN FORTNIGHTLY CORP. V. UNITED ARTISTS
TV, INC., NO. 618, NOW PENDING BEFORE THE COURT.  (REPORTER'S NOTE:
SEE POST, P. 390.) 

/11/  THE INSTALLATION COSTS FOR CATV SYSTEMS IN 16 CONNECTICUT
COMMUNITIES WERE, FOR EXAMPLE, FOUND TO RANGE FROM $31 TO $147 PER
HOME.  M. SEIDENT, AN ECONOMIC ANALYSIS OF COMMUNITY ANTENNA TELEVISION
SYSTEMS AND THE TELEVISION BROADCASTING INDUSTRY 24 (1965). 

/12/  CATV SYSTEMS WERE EVIDENTLY FIRST ESTABLISHED ON A
NONCOMMERCIAL BASIS IN 1949.  H.R. REP. NO. 1635, 89TH CONG., 2D SESS.,
5. 

/13/  CATV AND TV REPEATER SERVICES, 26 F.C.C. 403, 408; NOTE, THE
WIRE MIRE:  THE FCC AND CATV, SUPRA, AT 368. 

/14/  NOTE, THE WIRE MIRE:  THE FCC AND CATV, SUPRA, AT 368. 

/15/  SECOND REPORT AND ORDER, 2 F.C.C.2D 725, 738.  THE FRANCHISES
ARE GRANTED BY STATE OR LOCAL REGULATORY AGENCIES.  IT WAS REPORTED IN
1965 THAT TWO STATES, CONNECTICUT AND NEVADA, REGULATE CATV SYSTEMS,
AND THAT SOME 86% OF THE SYSTEMS ARE SUBJECT AT LEAST TO SOME LOCAL
REGULATION.  SEIDEN, SUPRA, AT 44-47.  SEE CONN. GEN. STAT. REV., TIT.
16, C. 289 (1958); NEV. STAT. 1967, C. 458. 

/16/  THE TERM "DISTANT SIGNAL" HAS BEEN GIVEN A SPECIALIZED
DEFINITION BY THE COMMISSION, AS A SIGNAL "WHICH IS EXTENDED OR
RECEIVED BEYOND THE GRADE B CONTOUR OF THAT STATION."  47 CFR
74.1101(I).  THE GRADE B CONTOUR IS A LINE ALONG WHICH GOOD RECEPTION
MAY BE EXPECTED 90% OF THE TIME AT 50% OF THE LOCATIONS.  SEE 47 CFR
73.683(A). 

/17/  NOTE, THE WIRE MIRE:  THE FCC AND CATV, SUPRA, AT 368 (NOTES
OMITTED). 

/18/  IT HAS THUS BEEN SUGGESTED THAT "A NATIONWIDE GRID OF WIRED
CATV SYSTEMS, INTERCONNECTED BY MICROWAVE FREQUENCIES AND FINANCED BY
SUBSCRIBER FEES, MAY ONE DAY OFFER A VIABLE ECONOMIC ALTERNATIVE TO THE
ADVERTISER-SUPPORTED BROADCAST SERVICE."  LEVIN, NEW TECHNOLOGY AND THE
OLD REGULATION IN RADIO SPECTRUM MANAGEMENT, 56 AM.ECON.REV.  339, 341
(PROCEEDINGS, MAY 1966). 

/19/  SEE S. 2653, 86TH CONG., 1ST SESS. 

/20/  S. REP. NO. 923, 86TH CONG., 1ST SESS. 

/21/  SEE 106 CONG.REC.  10416-10436, 10520-10548. 

/22/  ID., AT 10547.  THE COMMISSION IN 1966 MADE ADDITIONAL EFFORTS
TO OBTAIN SUITABLE MODIFICATIONS IN THE COMMUNICATIONS ACT.  SEE N. 30,
INFRA. 

/23/  SEE GENERALLY FIRST REPORT AND ORDER, SUPRA, AT 716-719.  THE
COMMISSION HELD THAT A CATV SYSTEM MUST, WITHIN THE LIMITS OF ITS
CHANNEL CAPACITY, CARRY THE SIGNALS OF STATIONS THAT PLACE SIGNALS OVER
THE COMMUNITY SERVED BY THE SYSTEM.  THE STATIONS ARE TO BE GIVEN
PRIORITY ACCORDING TO THE STRENGTH OF THE SIGNAL AVAILABLE IN THE
COMMUNITY, WITH THE STRONGEST SIGNALS GIVEN FIRST PRIORITY.  EXCEPTIONS
ARE MADE FOR SITUATIONS IN WHICH THERE WOULD BE SUBSTANTIAL DUPLICATION
OR IN WHICH AN INDEPENDENT OR NONCOMMERCIAL STATION WOULD BE EXCLUDED. 
ID., AT 717. 

/24/  IT MUST ALSO BE NOTED THAT THE CATV SYSTEMS INVOLVED IN THESE
CASES EVIDENTLY DO NOT EMPLOY MICROWAVE.  WE INTIMATE NO VIEWS ON WHAT
DIFFERENCES, IF ANY, THERE MIGHT BE IN THE SCOPE OF THE COMMISSION'S
AUTHORITY OVER MICROWAVE AND NONMICROWAVE SYSTEMS. 

/25/  THE PHRASE IS TAKEN FROM THE MESSAGE TO CONGRESS FROM
PRESIDENT ROOSEVELT, DATED FEBRUARY 26, 1934, IN WHICH HE RECOMMENDED
THE COMMISSION'S CREATION.  SEE H.R. REP. NO. 1850, 73D CONG., 2D
SESS., 1. 

/26/  S. REP. NO. 781, 73D CONG., 2D SESS., 1. 

/27/  IBID.  THE COMMITTEE ALSO INDICATED THAT THERE WAS A "VITAL
NEED" FOR SUCH A COMMISSION, WITH JURISDICTION "OVER ALL OF THESE
METHODS OF COMMUNICATION."  IBID. 

/28/  THE PHRASE IS TAKEN FROM PRESIDENT ROOSEVELT'S MESSAGE TO
CONGRESS.  H.R. REP. NO. 1850, SUPRA, AT 1.  THE HOUSE COMMITTEE ADDED
THAT "THE PRIMARY PURPOSE OF THIS BILL (IS) TO CREATE SUCH A COMMISSION
ARMED WITH ADEQUATE STATUTORY POWERS TO REGULATE ALL FORMS OF
COMMUNICATION . . . ."  ID., AT 3. 

/29/  RESPONDENTS ASSERT ONLY THAT THIS "IS SUBJECT TO CONSIDERABLE
QUESTION."  BRIEF FOR RESPONDENT SOUTHWESTERN CABLE CO. 24, N. 25. 
THEY RELY CHIEFLY UPON THE LANGUAGE OF SEC. 152(B), WHICH PROVIDES THAT
NOTHING IN THE ACT SHALL GIVE THE COMMISSION JURISDICTION OVER
"CARRIERS" THAT ARE ENGAGED IN INTERSTATE COMMUNICATION SOLELY THROUGH
PHYSICAL CONNECTION, OR CONNECTION BY WIRE OR RADIO, WITH THE
FACILITIES OF ANOTHER CARRIER, IF THEY ARE NOT DIRECTLY OR INDIRECTLY
CONTROLLED BY SUCH OTHER CARRIER.  THE TERMS AND HISTORY OF THIS
PROVISION, HOWEVER, INDICATE THAT IT WAS "MERELY A PERFECTING
AMENDMENT" INTENDED TO "OBVIATE ANY POSSIBLE TECHNICAL ARGUMENT THAT
THE COMMISSION MAY ATTEMPT TO ASSERT COMMON-CARRIER JURISDICTION OVER
POINT-TO-POINT COMMUNICATION BY RADIO BETWEEN TWO POINTS WITHIN A
SINGLE STATE . . . ."  S. REP. NO. 1090, 83D CONG., 2D SESS., 1.  SEE
ALSO H.R. REP. NO. 910, 83D CONG., 1ST SESS.  THE COMMISSION AND THE
RESPONDENTS ARE AGREED, WE THINK PROPERLY, THAT THESE CATV SYSTEMS ARE
NOT COMMON CARRIERS WITHIN THE MEANING OF THE ACT.  SEE 47 U.S.C.
153(H); FRONTIER BROADCASTING CO. V. COLLIER, 24 F.C.C. 251;
PHILADELPHIA TELEVISION BROADCASTING CO. V. F.C.C., 123 U.S. APP.D.C.
298, 359 F.2D 282; CATV AND TV REPEATER SERVICES, SUPRA, AT 427-428. 

/30/  SEE H.R. 13286, 89TH CONG., 2D SESS.  THE BILL WAS FAVORABLY
REPORTED BY THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
H.R. REP. NO. 1635, 89TH CONG., 2D SESS., BUT FAILED TO REACH THE FLOOR
FOR DEBATE. 

/31/  SEE, FOR THE LEGISLATION PROPOSED IN 1959, CATV AND TV
REPEATER SERVICES, SUPRA, AT 427-431, 438-439.  THE COMMISSION IN 1966
EXPLICITLY STATED IN ITS EXPLANATION OF ITS PROPOSED AMENDMENTS TO THE
ACT THAT "WE BELIEVE IT HIGHLY DESIRABLE THAT CONGRESS . . . CONFIRM
(THE COMMISSION'S) JURISDICTION AND . . . ESTABLISH SUCH BASIC NATIONAL
POLICY AS IT DEEMS APPROPRIATE."  H.R. REP. NO. 1635, SUPRA, AT 16. 

/32/  SEE S. REP. NO. 923, 86TH CONG., 1ST SESS., 5-6. 

/33/  THUS, THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
OBSERVED IN ITS 1959 REPORT THAT ALTHOUGH THE COMMISSION'S STAFF HAD
RECOMMENDED THAT AUTHORITY BE ASSERTED OVER CATV, THE COMMISSION HAD
"LONG HESITATED," AND HAD ONLY RECENTLY MADE CLEAR "THAT IT DID NOT
INTEND TO REGULATE CATV SYSTEMS IN ANY WAY WHATSOEVER."  S. REP. NO.
923, SUPRA, AT 5.  NONETHELESS, IT MUST BE ACKNOWLEDGED THAT THE DEBATE
ON THE SENATE FLOOR CENTERED ON THE BROAD QUESTION WHETHER THE
COMMISSION SHOULD HAVE AUTHORITY TO REGULATE CATV.  SEE, E.G., 106
CONG.REC.  10426. 

/34/  47 U.S.C. 152(A) PROVIDES THAT "(THE PROVISIONS OF THIS
CHAPTER SHALL APPLY TO ALL INTERSTATE AND FOREIGN COMMUNICATION BY WIRE
OR RADIO AND ALL INTERSTATE AND FOREIGN TRANSMISSION OF ENERGY BY
RADIO, WHICH ORIGINATES AND/OR IS RECEIVED WITHIN THE UNITED STATES,
AND TO ALL PERSONS ENGAGED WITHIN THE UNITED STATES IN SUCH
COMMUNICATION OR SUCH TRANSMISSION OF ENERGY BY RADIO, AND TO THE
LICENSING AND REGULATING OF ALL RADIO STATIONS AS HEREINAFTER PROVIDED;
BUT IT SHALL NOT APPLY TO PERSONS ENGAGED IN WIRE OR RADIO
COMMUNICATION OR TRANSMISSION IN THE CANAL ZONE, OR TO WIRE OR RADIO
COMMUNICATION OR TRANSMISSION WHOLLY WITHIN THE CANAL ZONE." 

/35/  S. REP. NO. 781, SUPRA, AT 1. 

/36/  H.R. REP. NO. 1850, SUPRA, AT 1. 

/37/  RESPONDENTS ARGUE, AND THE COURT OF APPEALS EVIDENTLY
CONCLUDED, THAT THE OPINION OF THE COURT IN REGENTS V. CARROLL, 338
U.S. 586, SUPPORTS THE INFERENCE THAT THE COMMISSION'S AUTHORITY IS
LIMITED TO LICENSEES, CARRIERS, AND OTHERS SPECIFICALLY REACHED BY THE
ACT'S OTHER PROVISIONS.  WE FIND THIS UNPERSUASIVE.  THE COURT IN
CARROLL CONSIDERED THE VERY GENERAL CONTENTION THAT THE COMMISSION HAD
BEEN GIVEN AUTHORITY "TO DETERMINE THE VALIDITY OF CONTRACTS BETWEEN
LICENSEES AND OTHERS."  ID., AT 602.  IT WAS CONCERNED, NOT WITH THE
LIMITS OF THE COMMISSION'S AUTHORITY OVER A FORM OF COMMUNICATION BY
WIRE OR RADIO, BUT WITH EFFORTS TO ENFORCE A CONTRACT THAT HAD BEEN
REPUDIATED UPON THE DEMAND OF THE COMMISSION.  THE COURT'S DISCUSSION
OF THE COMMISSION'S AUTHORITY UNDER SEC. 303(R), SEE ID., AT 600, MUST
BE READ IN THAT CONTEXT, AND AS THUS READ IT CANNOT BE CONTROLLING
HERE. 

/38/  S. REP. NO. 923, SUPRA, AT 7.  THE COMMITTEE ADDED THAT
"CONGRESS AND THE PEOPLE" HAVE NO PARTICULAR INTEREST IN THE SUCCESS OF
ANY GIVEN BROADCASTER, BUT IF THE FAILURE OF A STATION "LEAVES A
COMMUNITY WITH INFERIOR SERVICE," THIS BECOMES "A MATTER OF REAL AND
IMMEDIATE PUBLIC CONCERN."  IBID. 

/39/  H.R. REP. NO. 1559, 87TH CONG., 2D SESS., 3; SIXTH REPORT AND
ORDER, 17 FED.REG.  3905.  AND SEE STAFF OF THE SENATE COMM. ON
INTERSTATE AND FOREIGN COMMERCE, 85TH CONG., 2D SESS., THE TELEVISION
INQUIRY:  THE PROBLEM OF TELEVISION SERVICE FOR SMALLER COMMUNITIES 3-4
(COMM. PRINT 1959).  THE SENATE COMMITTEE HAS ELSEWHERE STATED THAT
"(THERE SHOULD BE NO WEAKENING OF THE COMMISSION'S ANNOUNCED GOAL OF
LOCAL SERVICE."  S. REP. NO. 923, SUPRA, AT 7.     /40/  THE COMMISSION
HAS ALLOCATED 82 CHANNELS FOR TELEVISION BROADCASTING, OF WHICH 70 ARE
IN THE UHF PORTION OF THE RADIO SPECTRUM.  THIS PERMITS A TOTAL OF 681
VHF STATIONS AND 1,544 UHF STATIONS.  H.R. REP. NO. 1559, SUPRA, AT 2. 
IN DECEMBER 1964, 454 VHF STATIONS WERE ON THE AIR, 25 PERMITTEES WERE
NOT OPERATING, AND 11 APPLICATIONS WERE AWAITING COMMISSION ACTION,
LEAVING 63 UNRESERVED VHF ALLOCATIONS AVAILABLE.  SEIDEN, SUPRA, 162,
N. 11, AT 10.  AT THE SAME TIME, 90 UHF STATIONS WERE OPERATING, 66
WERE ASSIGNED BUT NOT OPERATING, 52 APPLICATIONS WERE PENDING BEFORE
THE COMMISSION, AND 1,108 ALLOCATIONS WERE STILL AVAILABLE.  IBID.  THE
COMMISSION HAS CONCLUDED THAT, IN THESE CIRCUMSTANCES, "AN ADEQUATE
NATIONAL TELEVISION SYSTEM CAN BE ACHIEVED" ONLY IF MORE OF THE
AVAILABLE UHF CHANNELS ARE UTILIZED.  H.R. REP. NO. 1559, SUPRA, AT 4. 

/41/  S. REP. NO. 67, 87TH CONG., 1ST SESS., 8-9.  THE COMMITTEE
INDICATED THAT IT WAS "OF UTMOST IMPORTANCE TO THE NATION THAT A
REASONABLE OPPORTUNITY BE AFFORDED EDUCATIONAL INSTITUTIONS TO USE
TELEVISION AS A NONCOMMERCIAL EDUCATIONAL MEDIUM."  ID., AT 3. 
SIMILARLY, THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE HAS
CONCLUDED THAT EDUCATIONAL TELEVISION WILL "PROVIDE A MUCH NEEDED
SOURCE OF CULTURAL AND INFORMATIONAL PROGRAMING FOR ALL AUDIENCES . . .
."  H.R. REP. NO. 1559, SUPRA, AT 3.  IT IS THUS AN ESSENTIAL ELEMENT
OF "AN ADEQUATE NATIONAL TELEVISION SYSTEM."  ID., AT 4.  SEE ALSO H.R.
REP. NO. 572, 90TH CONG., 1ST SESS.; S. REP. NO. 222, 90TH CONG., 1ST
SESS. 

/42/  LEGISLATION WAS ADOPTED IN 1962 TO AMEND THE COMMUNICATIONS
ACT IN ORDER TO REQUIRE THAT ALL TELEVISION RECEIVERS THEREAFTER
SHIPPED IN INTERSTATE COMMERCE FOR SALE OR RESALE TO THE PUBLIC BE
CAPABLE OF RECEIVING BOTH UHF AND VHF FREQUENCIES.  76 STAT. 150.  THE
LEGISLATION WAS PLAINLY INTENDED TO ASSIST THE GROWTH OF UHF
BROADCASTING.  SEE H.R. REP. NO. 1559, SUPRA.  MOREOVER, LEGISLATION
HAS BEEN ADOPTED TO PROVIDE CONSTRUCTION GRANTS AND OTHER ASSISTANCE TO
EDUCATIONAL TELEVISION SYSTEMS.  76 STAT. 68, 81 STAT. 365. 

/43/  SEE GENERALLY SECOND REPORT AND ORDER, SUPRA, AT 736-745.  IT
IS PERTINENT THAT THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE FEARED EVEN IN 1959 THAT THE UNRESTRICTED GROWTH OF CATV WOULD
ELIMINATE LOCAL BROADCASTING, AND THAT, IN TURN, THIS WOULD HAVE FOUR
UNDESIRABLE CONSEQUENCES: (1) THE LOCAL COMMUNITY "WOULD BE LEFT
WITHOUT THE LOCAL SERVICE WHICH IS NECESSARY IF THE PUBLIC IS TO
RECEIVE THE MAXIMUM BENEFITS FROM THE TELEVISION MEDIUM"; (2) THE
"SUBURBAN AND RURAL AREAS SURROUNDING THE CENTRAL COMMUNITY MAY BE
DEPRIVED NOT ONLY OF LOCAL SERVICE BUT OF ANY SERVICE AT ALL"; (3) EVEN
"THE RESIDENT OF THE CENTRAL COMMUNITY MAY BE DEPRIVED OF ALL SERVICE
IF HE CANNOT AFFORD THE CONNECTION CHARGE AND MONTHLY SERVICE FEES OF
THE CATV SYSTEM"; (4) "(UNRESTRAINED CATV, BOOSTER, OR TRANSLATOR
OPERATION MIGHT EVENTUALLY RESULT IN LARGE REGIONS, OR EVEN ENTIRE
STATES, BEING DEPRIVED OF ALL LOCAL TELEVISION SERVICE-- OR BEING LEFT,
AT BEST, WITH NOTHING MORE THAN A HIGHLY LIMITED SATELLITE SERVICE." 
S. REP. NO. 923, SUPRA, AT 7-8.  THE COMMITTEE CONCLUDED THAT CATV
COMPETITION "DOES HAVE AN EFFECT ON THE ORDERLY DEVELOPMENT OF
TELEVISION."  ID., AT 8. 

/44/  THE COMMISSION HAS FOUND THAT "WE ARE IN A CRITICAL PERIOD
WITH RESPECT TO UHF DEVELOPMENT.  MOST OF THE NEW UHF STATIONS WILL
FACE CONSIDERABLE FINANCIAL OBSTACLES."  FIRST REPORT AND ORDER, SUPRA,
AT 712.  IT CONCLUDED THAT "ONE GENERAL FACTOR GIVING CAUSE FOR SERIOUS
CONCERN," IBID., WAS THAT THERE IS "LIKELY" TO BE A "SEVERE" IMPACT
BETWEEN NEW LOCAL STATIONS, PARTICULARLY UHF STATIONS, AND CATV
SYSTEMS.  ID., AT 713.  FURTHER, THE COMMISSION BELIEVED THAT THERE WAS
DANGER THAT CATV SYSTEMS WOULD "SIPHON OFF SUFFICIENT LOCAL FINANCIAL
SUPPORT" FOR EDUCATIONAL TELEVISION, WITH THE RESULT THAT SUCH STATIONS
WOULD FAIL OR NOT BE ESTABLISHED AT ALL.  IT FEARED THAT "THE LOSS
WOULD BE KEENLY FELT BY THE PUBLIC."  SECOND REPORT AND ORDER, SUPRA,
AT 761.  THE COMMISSION CONCLUDED THAT THE HAZARDS TO EDUCATIONAL
TELEVISION WERE "SUFFICIENTLY STRONG TO WARRANT SOME SPECIAL PROTECTION
. . . ."  ID., AT 762.  SIMILARLY, A RECENT STUDY HAS FOUND THAT CATV
SYSTEMS MAY HAVE A SUBSTANTIAL IMPACT UPON STATION REVENUES, THAT MANY
STATIONS, PARTICULARLY IN SMALL MARKETS, CANNOT READILY AFFORD SUCH
COMPETITION, AND THAT IN CONSEQUENCE A "SUBSTANTIAL PERCENTAGE OF
POTENTIAL NEW STATION ENTRANTS, PARTICULARLY UHF, ARE LIKELY TO BE
DISCOURAGED . . . ."  FISHER & FERRALL, COMMUNITY ANTENNA TELEVISION
SYSTEMS AND LOCAL TELEVISION STATION AUDIENCE, 80 Q.J.ECON.  227, 250. 

/45/  COMPARE THE FOLLOWING.  SEIDEN, SUPRA, AT 64-90; NOTE, THE
FEDERAL COMMUNICATIONS COMMISSION AND REGULATION OF CATV, 43
N.Y.U.L.REV.  117, 133-139; NOTE, THE WIRE MIRE:  THE FCC AND CATV,
SUPRA, AT 376-383; FISHER & FERRAL, SUPRA.  WE NOTE, IN ADDITION, THAT
THE DISPUTE HERE IS IN PART WHETHER LOCAL, ADVERTISER-SUPPORTED
STATIONS ARE AN APPROPRIATE FOUNDATION FOR A NATIONAL SYSTEM OF
TELEVISION BROADCASTING.  SEE GENERALLY COASE, THE ECONOMICS OF
BROADCASTING AND GOVERNMENT POLICY, 56 AM.ECON.REV.  440 (MAY 1966);
GREENBERG, WIRE TELEVISION AND THE FCC'S SECOND REPORT AND ORDER ON
CATV SYSTEMS, 10 J.LAW & ECON.  181. 

/46/  RESPONDENTS URGE THAT THE LEGISLATIVE HISTORY OF SEC. 312(B)
INDICATES THAT THE COMMISSION MAY ISSUE PROHIBITORY ORDERS ONLY UNDER,
AND IN CONFORMITY WITH, THAT SECTION.  WE FIND THIS UNPERSUASIVE. 
NOTHING IN THAT HISTORY SUGGESTS THAT THE COMMISSION WAS DEPRIVED OF
ITS AUTHORITY, GRANTED ELSEWHERE IN THE ACT, TO ISSUE ORDERS "NECESSARY
IN THE EXECUTION OF ITS FUNCTIONS."  47 U.S.C. 154(I).  SEE ALSO 47
U.S.C. 303(R). 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE WHITE, CONCURRING IN THE RESULT. 

MY ROUTE TO REVERSAL OF THE COURT OF APPEALS IS SOMEWHAT DIFFERENT
FROM THE COURT'S.  SECTION 2(A) OF THE COMMUNICATIONS ACT, 47 U.S.C.
152(A), SAYS THAT "(THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO ALL
INTERSTATE AND FOREIGN COMMUNICATION BY WIRE OR RADIO . . . ."  I AM
INCLINED TO BELIEVE THAT THIS SECTION MEANS THAT THE COMMISSION MUST
GENERALLY BASE JURISDICTION ON OTHER PROVISIONS OF THE ACT.  THIS
POSITION WOULD NOT, HOWEVER, REQUIRE INVALIDATION OF THE ASSERTION OF
JURISDICTION BEFORE US TODAY.  SECTION 301, 47 U.S.C. 301, GIVES THE
COMMISSION BROAD AUTHORITY OVER BROADCASTING, AND SEC. 303, 47 U.S.C.
303, CONFERS AUTHORITY TO "(MAKE SUCH REGULATIONS NOT INCONSISTENT WITH
LAW AS IT MAY DEEM NECESSARY TO PREVENT INTERFERENCE BETWEEN STATIONS
AND TO CARRY OUT THE PROVISIONS OF THIS CHAPTER" AND ALSO THE AUTHORITY
TO ESTABLISH AREAS OR ZONES TO BE SERVED BY ANY STATION.  THE
COMMISSION HAS AMPLE POWER UNDER THESE PROVISIONS TO PREVENT A LOS
ANGELES TELEVISION BROADCASTER FROM INTERFERING WITH BROADCASTING IN
SAN DIEGO.  FOR EXAMPLE, THE COMMISSION COULD STOP A LOS ANGELES
TELEVISION STATION FROM OWNING AND OPERATING A WIRE CATV SYSTEM WHICH
CARRIED THE STATION'S SIGNALS INTO SAN DIEGO.  THE COMMISSION SHOULD
ALSO BE ABLE TO PREVENT A THIRD PARTY FROM DISRUPTING COMMISSION
LICENSED BROADCASTING IN THE SAN DIEGO MARKET. 

EVEN IF SECS. 301 AND 303 IN THEMSELVES FURNISH INSUFFICIENT BASIS
FOR THE COMMISSION TO ENJOIN EXTRANEOUS INTERFERENCE WITH THE SAN DIEGO
BROADCASTING SCHEME IT HAS AUTHORIZED, SEC. 2(A), SUPRA, MAKES THE
PROVISIONS OF THE ACT, INCLUDING SECS. 301 AND 303, APPLICABLE TO ALL
WIRE AND RADIO COMMUNICATION.  HENCE THE COMMISSION IS AUTHORIZED TO
REGULATE WIRE COMMUNICATIONS TO IMPLEMENT THE ENDS OF SECS. 301 AND
303, AND AUTHORIZED AS WELL TO USE ITS EXPRESS AUTHORITY OVER
BROADCASTING TO ENFORCE ITS SPECIFIC POWERS OVER COMMON CARRIERS BY
WIRE. 

HENRY GELLER ARGUED THE CAUSE FOR THE UNITED STATES ET AL. WITH HIM
ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL TURNER, FRANCIS X. BEYTAGH, JR., HOWARD E. SHAPIRO, AND DANIEL
R. OHLBAUM. 

ERNEST W. JENNES ARGUED THE CAUSE FOR PETITIONERS IN NO. 428.  WITH
HIM ON THE BRIEFS WAS CHARLES A. MILLER. 

ARTHUR SCHEINER ARGUED THE CAUSE FOR RESPONDENT SOUTHWESTERN CABLE
CO. IN BOTH CASES.  WITH HIM ON THE BRIEF WERE MORTON H. WILNER AND
HAROLD F. REIS.  ROBERT L. HEALD ARGUED THE CAUSE FOR RESPONDENTS
MISSION CABLE TV, INC., ET AL. IN BOTH CASES.  WITH HIM ON THE BRIEF
WERE FRANK U. FLETCHER, EDWARD F. KENEHAN, AND JAMES P. RILEY. 

MICHAEL FINKELSTEIN FILED A BRIEF FOR THE ALL-CHANNEL TELEVISION
SOCIETY, AS AMICUS CURIAE, URGING REVERSAL. 

BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY ROBERT A.
MARMET, THOMAS W. WILSON, JOHN D. MATTHEWS, AND ROBERT H. YOUNG FOR THE
ALICE CABLE TELEVISION CORP. ET AL., AND BY WAYNE W. OWEN, HARRY M.
PLOTKIN, AND GEORGE H. SHAPIRO FOR THE BLACK HILLS VIDEO CORP. ET AL.
..END :






















MARYLAND V. WIRTZ, 392 U.S. 183 


       MARYLAND ET AL. V. WIRTZ, SECRETARY OF LABOR, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MARYLAND. 

        NO. 742.  ARGUED APRIL 23, 1968.-- DECIDED JUNE 10, 1968. 


THE FAIR LABOR STANDARDS ACT, AS ENACTED IN 1938, REQUIRED EVERY
EMPLOYER TO PAY EACH OF HIS EMPLOYEES "ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE" CERTAIN MINIMUM WAGES AND OVERTIME
PAY.  THE DEFINITION OF EMPLOYER EXCLUDED STATES AND THEIR POLITICAL
SUBDIVISIONS.  IN 1961 THE ACT'S COVERAGE WAS EXTENDED BEYOND EMPLOYEES
INDIVIDUALLY CONNECTED TO INTERSTATE COMMERCE TO INCLUDE ALL EMPLOYEES
OF CERTAIN "ENTERPRISES" ENGAGED IN COMMERCE OR PRODUCTION FOR
COMMERCE.  IN 1966 THE ACT WAS AMENDED TO COVER CERTAIN HOSPITALS,
INSTITUTIONS, AND SCHOOLS, AND TO MODIFY THE DEFINITION OF EMPLOYER TO
REMOVE THE EXEMPTION OF THE STATES AND THEIR SUBDIVISIONS WITH RESPECT
TO EMPLOYEES OF HOSPITALS, INSTITUTIONS, AND SCHOOLS.  APPELLANTS, 28
STATES AND A SCHOOL DISTRICT, SOUGHT TO ENJOIN ENFORCEMENT OF THE ACT
AS IT APPLIES TO SCHOOLS AND HOSPITALS OPERATED BY THE STATES OR THEIR
SUBDIVISIONS.  THEY ARGUED THAT THE "ENTERPRISE CONCEPT" OF COVERAGE
AND THE INCLUSION OF STATE-OPERATED HOSPITALS AND SCHOOLS WERE BEYOND
CONGRESS' POWER UNDER THE COMMERCE CLAUSE, THAT THE REMEDIAL PROVISIONS
OF THE ACT, IF APPLIED TO THE STATES, WOULD CONFLICT WITH THE ELEVENTH
AMENDMENT, AND THAT SCHOOL AND HOSPITAL ENTERPRISES DO NOT HAVE THE
STATUTORILY REQUIRED RELATIONSHIP TO INTERSTATE COMMERCE.  A THREE
JUDGE DISTRICT COURT DECLINED TO ISSUE A DECLARATORY JUDGMENT OR AN
INJUNCTION, AND CONCLUDED THAT THE ADOPTION OF THE "ENTERPRISE CONCEPT"
AND THE EXTENSION OF COVERAGE TO STATE INSTITUTIONS DO NOT, ON THE FACE
OF THE ACT, EXCEED CONGRESS' COMMERCE POWER.  THAT COURT DECLINED TO
CONSIDER THE ELEVENTH AMENDMENT AND STATUTORY RELATIONSHIP
CONTENTIONS.  HELD: 

1.  THE "ENTERPRISE CONCEPT" OF COVERAGE IS CLEARLY WITHIN THE POWER
OF CONGRESS UNDER THE COMMERCE CLAUSE.  PP. 188-193. 

(A) A RATIONAL BASIS FOR CONGRESS' FINDING THE SCHEME NECESSARY TO
THE PROTECTION OF COMMERCE WAS THE LOGICAL INFERENCE THAT THE PAY AND
HOURS OF EMPLOYEES OF AN INTERSTATE BUSINESS WHO ARE NOT PRODUCTION
WORKERS, AS WELL AS THOSE WHO ARE, AFFECT AN EMPLOYER'S COMPETITION
WITH COMPANIES ELSEWHERE.  UNITED STATES V. DARBY, 312 U.S. 100,
FOLLOWED.  PP. 188-191. 

(B) ANOTHER RATIONAL BASIS IS THE PROMOTION OF LABOR PEACE BY THE
REGULATION OF WAGES AND HOURS, SUBJECTS OF FREQUENT LABOR DISPUTES. 
PP. 191-192. 

(C) THE CLASS OF EMPLOYERS SUBJECT TO THE ACT, APPROVED IN DARBY,
SUPRA, WAS NOT ENLARGED BY THE ADDITION OF THE "ENTERPRISE CONCEPT." 
P. 193. 

2.  THE COMMERCE POWER PROVIDES A CONSTITUTIONAL BASIS FOR EXTENSION
OF THE ACT TO STATE-OPERATED SCHOOLS AND HOSPITALS.  PP. 193-199. 

(A) CONGRESS HAS "INTERFERED WITH" STATE FUNCTIONS ONLY TO THE
EXTENT THAT IT SUBJECTS A STATE TO THE SAME MINIMUM WAGE AND OVERTIME
PAY LIMITATIONS AS OTHER EMPLOYERS WHOSE ACTIVITIES AFFECT COMMERCE. 
PP. 193-194. 

(B) LABOR CONDITIONS IN SCHOOLS AND HOSPITALS CAN AFFECT COMMERCE
AND ARE WITHIN THE REACH OF THE COMMERCE POWER.  PP. 194-195. 

(C) WHERE A STATE IS ENGAGING IN ECONOMIC ACTIVITIES THAT ARE
VALIDLY REGULATED BY THE FEDERAL GOVERNMENT WHEN ENGAGED IN BY PRIVATE
PERSONS, THE STATE MAY BE FORCED TO CONFORM ITS ACTIVITIES TO FEDERAL
REGULATION.  UNITED STATES V. CALIFORNIA, 297 U.S. 175.  PP. 195-199. 

3.  QUESTIONS CONCERNING THE STATES' SOVEREIGN IMMUNITY FROM SUIT
AND WHETHER PARTICULAR STATE-OPERATED INSTITUTIONS HAVE EMPLOYEES
HANDLING GOODS IN COMMERCE ARE RESERVED FOR APPROPRIATE CONCRETE
CASES.  PP. 199-201. 

269 F.SUPP.  826, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

AS ORIGINALLY ENACTED, /1/  THE FAIR LABOR STANDARDS ACT OF 1938
REQUIRED EVERY EMPLOYER TO PAY EACH OF HIS EMPLOYEES "ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE"  /2/ A CERTAIN
MINIMUM HOURLY WAGE, AND TO PAY AT A HIGHER RATE FOR WORK IN EXCESS OF
A CERTAIN MAXIMUM NUMBER OF HOURS PER WEEK.  THE ACT DEFINED THE TERM
"EMPLOYER" SO AS TO EXCLUDE "THE UNITED STATES OR ANY STATE OR
POLITICAL SUBDIVISION OF A STATE . . . ."  /3/  THIS CASE INVOLVES THE
CONSTITUTIONALITY OF TWO SETS OF AMENDMENTS TO THE ORIGINAL ENACTMENT. 

IN 1961, CONGRESS CHANGED THE BASIS OF EMPLOYEE COVERAGE:  INSTEAD
OF EXTENDING PROTECTION TO EMPLOYEES INDIVIDUALLY CONNECTED TO
INTERSTATE COMMERCE THE ACT NOW COVERS ALL EMPLOYEES OF ANY
"ENTERPRISE" ENGAGED IN COMMERCE OR PRODUCTION FOR COMMERCE, PROVIDED
THE ENTERPRISE ALSO FALLS WITHIN CERTAIN LISTED CATEGORIES.  /4/  IN
1966, CONGRESS ADDED TO THE LIST OF CATEGORIES THE FOLLOWING: 

    "(4) IS ENGAGED IN THE OPERATION OF A HOSPITAL, AN INSTITUTION

  PRIMARILY ENGAGED IN THE CARE OF THE SICK, THE AGED, THE MENTALLY

  ILL OR DEFECTIVE WHO RESIDE ON THE PREMISES OF SUCH INSTITUTION,

  A SCHOOL FOR THE MENTALLY OR PHYSICALLY HANDICAPPED OR GIFTED

  CHILDREN, AN ELEMENTARY OR SECONDARY SCHOOL, OR AN INSTITUTION OF

  HIGHER EDUCATION (REGARDLESS OF WHETHER OR NOT SUCH HOSPITAL,

  INSTITUTION, OR SCHOOL IS PUBLIC OR PRIVATE OR OPERATED FOR

  PROFIT OR NOT FOR PROFIT.)"  /5/

AT THE SAME TIME, CONGRESS MODIFIED THE DEFINITION OF "EMPLOYER" SO AS
TO REMOVE THE EXEMPTION OF THE STATES AND THEIR POLITICAL SUBDIVISIONS
WITH RESPECT TO EMPLOYEES OF HOSPITALS, INSTITUTIONS, AND SCHOOLS. 
/6/ 

THE STATE OF MARYLAND, SINCE JOINED BY 27 OTHER STATES AND ONE
SCHOOL DISTRICT, BROUGHT THIS ACTION AGAINST THE SECRETARY OF LABOR TO
ENJOIN ENFORCEMENT OF THE ACT INSOFAR AS IT NOW APPLIES TO SCHOOLS AND
HOSPITALS OPERATED BY THE STATES OR THEIR SUBDIVISIONS.  THE PLAINTIFFS
MADE FOUR CONTENTIONS.  THEY ARGUED THAT THE EXPANSION OF COVERAGE
THROUGH THE "ENTERPRISE CONCEPT" WAS BEYOND THE POWER OF CONGRESS UNDER
THE COMMERCE CLAUSE.  THEY CONTENDED THAT COVERAGE OF STATE-OPERATED
HOSPITALS AND SCHOOLS WAS ALSO BEYOND THE COMMERCE POWER.  THEY
ASSERTED THAT THE REMEDIAL PROVISIONS OF THE ACT, /7/  IF APPLIED TO
THE STATES, WOULD CONFLICT WITH THE ELEVENTH AMENDMENT.  FINALLY, THEY
URGED THAT EVEN IF THEIR CONSTITUTIONAL ARGUMENTS WERE REJECTED, THE
COURT SHOULD DECLARE THAT SCHOOLS AND HOSPITALS, AS ENTERPRISES, DO NOT
HAVE THE STATUTORILY REQUIRED RELATIONSHIP TO INTERSTATE COMMERCE. 

A THREE-JUDGE DISTRICT COURT, CONVENED PURSUANT TO 28 U.S.C. 2282,
DECLINED TO ISSUE A DECLARATORY JUDGMENT OR AN INJUNCTION.  /8/  THREE
OPINIONS WERE WRITTEN.  JUDGES WINTER AND THOMSEN, CONSTITUTING THE
MAJORITY, CONCLUDED FOR DIFFERENT REASONS THAT THE ADOPTION OF THE
"ENTERPRISE CONCEPT" OF COVERAGE AND THE EXTENSION OF COVERAGE TO STATE
INSTITUTIONS COULD NOT BE SAID, ON THE FACE OF THE ACT, TO EXCEED
CONGRESS' POWER UNDER THE COMMERCE CLAUSE.  BOTH DECLINED TO CONSIDER
THE ELEVENTH AMENDMENT AND STATUTORY CONTENTIONS.  JUDGE NORTHROP
DISSENTED, CONCLUDING THAT THE AMENDMENTS EXCEEDED THE COMMERCE POWER
BECAUSE THEY TRANSGRESSED THE SOVEREIGNTY OF THE STATES. 

WE NOTED PROBABLE JURISDICTION OF THE PLAINTIFFS' APPEAL, 389 U.S.
1031.  FOR REASONS TO FOLLOW, WE AFFIRM THE JUDGMENT OF THE DISTRICT
COURT. 

        I. 

WE TURN FIRST TO THE ADOPTION IN 1961 OF THE "ENTERPRISE CONCEPT." 
WHEREAS THE ACT ORIGINALLY EXTENDED TO EVERY EMPLOYEE "WHO IS ENGAGED
IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE," IT NOW
PROTECTS EVERY EMPLOYEE WHO "IS EMPLOYED IN AN ENTERPRISE ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE."  /9/  SUCH AN
ENTERPRISE IS DEFINED AS ONE WHICH, ALONG WITH OTHER QUALIFICATIONS,
"HAS EMPLOYEES ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE . . . ."  /10/  THUS THE EFFECT OF THE 1961 CHANGE WAS TO
EXTEND PROTECTION TO THE FELLOW EMPLOYEES OF ANY EMPLOYEE WHO WOULD
HAVE BEEN PROTECTED BY THE ORIGINAL ACT, BUT NOT TO ENLARGE THE CLASS
OF EMPLOYERS SUBJECT TO THE ACT. 

IN UNITED STATES V. DARBY, 312 U.S. 100, THIS COURT FOUND THE
ORIGINAL ACT A LEGITIMATE EXERCISE OF CONGRESSIONAL POWER TO REGULATE
COMMERCE AMONG THE STATES.  APPELLANTS ACCEPT THE DARBY DECISION, BUT
CONTEND THAT THE EXTENSION OF PROTECTION TO FELLOW EMPLOYEES OF THOSE
ORIGINALLY COVERED EXCEEDS THE COMMERCE POWER.  WE CONCLUDE, TO THE
CONTRARY, THAT THE CONSTITUTIONALITY OF THE "ENTERPRISE CONCEPT" IS
SETTLED BY THE REASONING OF DARBY ITSELF AND IS INDEPENDENTLY
ESTABLISHED BY PRINCIPLES STATED IN OTHER CASES. 

DARBY INVOLVED EMPLOYEES WHO WERE ENGAGED IN PRODUCING GOODS FOR
COMMERCE.  THEIR EMPLOYER CONTENDED THAT SINCE MANUFACTURING IS ITSELF
AN INTRASTATE ACTIVITY, CONGRESS HAD NO POWER TO REGULATE THE WAGES AND
HOURS OF MANUFACTURING EMPLOYEES.  THE FIRST STEP IN THE COURT'S ANSWER
WAS CLEAR:  ("CONGRESS MAY) BY APPROPRIATE LEGISLATION REGULATE
INTRASTATE ACTIVITIES WHERE THEY HAVE A SUBSTANTIAL EFFECT ON
INTERSTATE COMMERCE."  /11/ 

THE NEXT STEP WAS TO DISCOVER WHETHER SUCH A "SUBSTANTIAL EFFECT"
EXISTED.  CONGRESS HAD FOUND THAT SUBSTANDARD WAGES AND EXCESSIVE
HOURS, WHEN IMPOSED ON EMPLOYEES OF A COMPANY SHIPPING GOODS INTO OTHER
STATES, GAVE THE EXPORTING COMPANY AN ADVANTAGE OVER COMPANIES IN THE
IMPORTING STATES.  HAVING SO FOUND, CONGRESS DECIDED AS A MATTER OF
POLICY THAT SUCH AN ADVANTAGE IN INTERSTATE COMPETITION WAS AN "UNFAIR"
ONE, AND ONE THAT HAD THE ADDITIONAL UNDESIRABLE EFFECT OF DRIVING
DOWN LABOR CONDITIONS IN THE IMPORTING STATES.  /12/  THIS COURT WAS OF
COURSE CONCERNED ONLY WITH THE FINDING OF A SUBSTANTIAL EFFECT ON
INTERSTATE COMPETITION, AND NOT WITH THE CONSEQUENT POLICY DECISIONS. 
IN ACCEPTING THE CONGRESSIONAL FINDING, THE COURT FOLLOWED PRINCIPLES
OF JUDICIAL REVIEW ONLY RECENTLY REARTICULATED IN KATZENBACH V.
MCCLUNG, 379 U.S. 294, 303-304: 

"OF COURSE, THE MERE FACT THAT CONGRESS HAS SAID WHEN PARTICULAR
ACTIVITY SHALL BE DEEMED TO AFFECT COMMERCE DOES NOT PRECLUDE FURTHER
EXAMINATION BY THIS COURT.  BUT WHERE WE FIND THAT THE LEGISLATORS . .
. HAVE A RATIONAL BASIS FOR FINDING A CHOSEN REGULATORY SCHEME
NECESSARY TO THE PROTECTION OF COMMERCE, OUR INVESTIGATION IS AT AN
END."  /13/ THERE WAS OBVIOUSLY A "RATIONAL BASIS" FOR THE LOGICAL
INFERENCE THAT THE PAY AND HOURS OF PRODUCTION EMPLOYEES AFFECT A
COMPANY'S COMPETITIVE POSITION. 

THE LOGICAL INFERENCE DOES NOT STOP WITH PRODUCTION EMPLOYEES.  WHEN
A COMPANY DOES AN INTERSTATE BUSINESS, ITS COMPETITION WITH COMPANIES
ELSEWHERE IS AFFECTED BY ALL ITS SIGNIFICANT LABOR COSTS NOT MERELY BY
THE WAGES AND HOURS OF THOSE EMPLOYEES WHO HAVE PHYSICAL CONTACT WITH
THE GOODS IN QUESTION.  CONSEQUENTLY, IT IS NOT SURPRISING THAT THIS
COURT HAS ALREADY EXPLICITLY RECOGNIZED THAT CONGRESS' ORIGINAL CHOICE
TO EXTEND THE ACT ONLY TO CERTAIN EMPLOYEES OF INTERSTATE ENTERPRISES
WAS NOT CONSTITUTIONALLY COMPELLED; RATHER, CONGRESS DECIDED, AT THAT
TIME, "NOT TO ENTER AREAS WHICH IT MIGHT HAVE OCCUPIED (UNDER THE
COMMERCE POWER.)"  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 522. 

THE "ENTERPRISE CONCEPT" IS ALSO SUPPORTED BY A WHOLLY DIFFERENT
LINE OF ANALYSIS.  IN THE ORIGINAL ACT, CONGRESS STATED ITS FINDING
THAT SUBSTANDARD LABOR CONDITIONS TENDED TO LEAD TO LABOR DISPUTES AND
STRIKES, AND THAT WHEN SUCH STRIFE DISRUPTED BUSINESS INVOLVED IN
INTERSTATE COMMERCE, THE FLOW OF GOODS IN COMMERCE WAS ITSELF
AFFECTED.  /14/  CONGRESS THEREFORE CHOSE TO PROMOTE LABOR PEACE BY
REGULATION OF SUBJECT MATTER, WAGES, AND HOURS, OUT OF WHICH DISPUTES
FREQUENTLY ARISE.  THIS OBJECTIVE IS PARTICULARLY RELEVANT WHERE, AS
HERE, /15/  THE ENTERPRISES IN QUESTION ARE SIGNIFICANT IMPORTERS OF
GOODS FROM OTHER STATES. 

ALTHOUGH THE COURT DID NOT EXAMINE THIS SECOND OBJECTIVE IN DARBY,
OTHER CASES HAVE FOUND A "RATIONAL BASIS" FOR STATUTES REGULATING LABOR
CONDITIONS IN ORDER TO PROTECT INTERSTATE COMMERCE FROM LABOR STRIFE. 
THE NATIONAL LABOR RELATIONS ACT /16/  HAD BEEN PASSED BECAUSE 

"(THE DENIAL BY EMPLOYERS OF THE RIGHT OF EMPLOYEES TO ORGANIZE AND
THE REFUSAL BY EMPLOYERS TO ACCEPT THE PROCEDURE OF COLLECTIVE
BARGAINING LEAD TO STRIKES AND OTHER FORMS OF INDUSTRIAL STRIFE OR
UNREST, WHICH HAVE THE INTENT OR THE NECESSARY EFFECT OF BURDENING OR
OBSTRUCTING COMMERCE . . . . "  /17/ IN LABOR BOARD V. JONES &
LAUGHLIN, 301 U.S. 1, THIS COURT HELD THAT THE NATIONAL LABOR RELATIONS
ACT (NLRA) WAS WITHIN THE COMMERCE POWER.  THE ESSENCE OF THE DECISION
WAS CONTAINED IN TWO PROPOSITIONS:  "THE STOPPAGE OF THOSE
(RESPONDENT'S) OPERATIONS BY INDUSTRIAL STRIFE WOULD HAVE A MOST
SERIOUS EFFECT UPON INTERSTATE COMMERCE," ID., AT 41; AND "(EXPERIENCE
HAS ABUNDANTLY DEMONSTRATED THAT THE RECOGNITION OF THE RIGHT OF
EMPLOYEES TO SELF-ORGANIZATION AND TO HAVE REPRESENTATIVES OF THEIR OWN
CHOOSING FOR THE PURPOSE OF COLLECTIVE BARGAINING IS OFTEN AN ESSENTIAL
CONDITION OF INDUSTRIAL PEACE."  ID., AT 42. 

THE FAIR LABOR STANDARDS ACT, INCLUDING THE PRESENT "ENTERPRISE"
DEFINITION OF COVERAGE, MAY ALSO BE SUPPORTED BY TWO PROPOSITIONS.  ONE
IS IDENTICAL WITH THE FIRST PROPOSITION SUPPORTING THE NLRA:  STRIFE
DISRUPTING AN ENTERPRISE INVOLVED IN COMMERCE MAY DISRUPT COMMERCE. 
THE OTHER IS PARALLEL TO THE SECOND PROPOSITION SUPPORTING THE NLRA:
THERE IS A BASIS IN LOGIC AND EXPERIENCE FOR THE CONCLUSION THAT
SUBSTANDARD LABOR CONDITIONS AMONG ANY GROUP OF EMPLOYEES, WHETHER OR
NOT THEY ARE PERSONALLY ENGAGED IN COMMERCE OR PRODUCTION, MAY LEAD TO
STRIFE DISRUPTING AN ENTIRE ENTERPRISE. 

WHETHER THE "ENTERPRISE CONCEPT" IS DEFENDED ON THE "COMPETITION"
THEORY OR ON THE "LABOR DISPUTE" THEORY, IT IS TRUE THAT LABOR
CONDITIONS IN BUSINESSES HAVING ONLY A FEW EMPLOYEES ENGAGED IN
COMMERCE OR PRODUCTION MAY NOT AFFECT COMMERCE VERY MUCH OR VERY
OFTEN.  APPELLANTS THEREFORE CONTEND THAT DEFINING COVERED ENTERPRISES
IN TERMS OF THEIR EMPLOYEES IS SOMETIMES TO PERMIT "THE TAIL TO WAG THE
DOG."  HOWEVER, WHILE CONGRESS HAS IN SOME INSTANCES LEFT TO THE COURTS
OR TO ADMINISTRATIVE AGENCIES THE TASK OF DETERMINING WHETHER COMMERCE
IS AFFECTED IN A PARTICULAR INSTANCE, DARBY ITSELF RECOGNIZED THE POWER
OF CONGRESS INSTEAD TO DECLARE THAT AN ENTIRE CLASS OF ACTIVITIES
AFFECTS COMMERCE.  /18/  THE ONLY QUESTION FOR THE COURTS IS THEN
WHETHER THE CLASS IS "WITHIN THE REACH OF THE FEDERAL POWER."  /19/
THE CONTENTION THAT IN COMMERCE CLAUSE CASES THE COURTS HAVE POWER TO
EXCISE, AS TRIVIAL, INDIVIDUAL INSTANCES FALLING WITHIN A RATIONALLY
DEFINED CLASS OF ACTIVITIES HAS BEEN PUT ENTIRELY TO REST.  WICKARD V.
FILBURN, 317 U.S. 111, 127-128; POLISH ALLIANCE V. LABOR BOARD, 322
U.S. 643, 648; KATZENBACH V. MCCLUNG, SUPRA, AT 301.  THE CLASS OF
EMPLOYERS SUBJECT TO THE ACT WAS NOT ENLARGED BY THE ADDITION OF THE
ENTERPRISE CONCEPT.  THE DEFINITION OF THAT CLASS IS AS RATIONAL NOW AS
IT WAS WHEN DARBY WAS DECIDED. 

        II. 

APPELLANTS' SECOND CONTENTION IS THAT THE COMMERCE POWER DOES NOT
AFFORD A CONSTITUTIONAL BASIS FOR EXTENSION OF THE ACT TO SCHOOLS AND
HOSPITALS OPERATED BY THE STATES OR THEIR SUBDIVISIONS.  SINCE THE
ARGUMENT IS MADE IN TERMS OF INTERFERENCE WITH "SOVEREIGN STATE
FUNCTIONS," IT IS IMPORTANT TO NOTE EXACTLY WHAT THE ACT DOES. 
ALTHOUGH IT APPLIES TO "EMPLOYEES," THE ACT SPECIFICALLY EXEMPTS ANY
"EMPLOYEE EMPLOYED IN A BONA FIDE EXECUTIVE, ADMINISTRATIVE, OR
PROFESSIONAL CAPACITY (INCLUDING ANY EMPLOYEE EMPLOYED IN THE CAPACITY
OF ACADEMIC ADMINISTRATIVE PERSONNEL OR TEACHER IN ELEMENTARY OR
SECONDARY SCHOOLS) . . . ."  /20/  WE ASSUME, AS DID THE DISTRICT
COURT, /21/  THAT MEDICAL PERSONNEL ARE LIKEWISE EXCLUDED FROM COVERAGE
UNDER THE GENERAL LANGUAGE.  THE ACT ESTABLISHES ONLY A MINIMUM WAGE
AND A MAXIMUM LIMIT OF HOURS UNLESS OVERTIME WAGES ARE PAID, AND DOES
NOT OTHERWISE AFFECT THE WAY IN WHICH SCHOOL AND HOSPITAL DUTIES ARE
PERFORMED.  THUS APPELLANTS' CHARACTERIZATION OF THE QUESTION IN THIS
CASE AS WHETHER CONGRESS MAY, UNDER THE GUISE OF THE COMMERCE POWER,
TELL THE STATES HOW TO PERFORM MEDICAL AND EDUCATIONAL FUNCTIONS IS NOT
FACTUALLY ACCURATE.  CONGRESS HAS "INTERFERED WITH" THESE STATE
FUNCTIONS ONLY TO THE EXTENT OF PROVIDING THAT WHEN A STATE EMPLOYES
PEOPLE IN PERFORMING SUCH FUNCTIONS IT IS SUBJECT TO THE SAME
RESTRICTIONS AS A WIDE RANGE OF OTHER EMPLOYERS WHOSE ACTIVITIES AFFECT
COMMERCE, INCLUDING PRIVATELY OPERATED SCHOOLS AND HOSPITALS.  /22/ 

IT IS CLEAR THAT LABOR CONDITIONS IN SCHOOLS AND HOSPITALS CAN
AFFECT COMMERCE.  THE FACTS STIPULATED IN THIS CASE INDICATE THAT SUCH
INSTITUTIONS ARE MAJOR USERS OF GOODS IMPORTED FROM OTHER STATES.  FOR
EXAMPLE: 

     "IN THE CURRENT FISCAL YEAR AN ESTIMATED $38.3 BILLION WILL BE

  SPENT BY STATE AND LOCAL PUBLIC EDUCATIONAL INSTITUTIONS IN THE

UNITED STATES.  IN THE FISCAL YEAR 1965, THESE SAME AUTHORITIES

  SPENT $3.9 BILLION OPERATING PUBLIC HOSPITALS . . . . 

      "FOR MARYLAND, WHICH WAS STIPULATED TO BE TYPICAL OF THE

  PLAINTIFF STATES, 87% OF THE $8 MILLION SPENT FOR SUPPLIES AND

  EQUIPMENT BY ITS PUBLIC SCHOOL SYSTEM DURING THE FISCAL YEAR 1965

  REPRESENTED DIRECT INTERSTATE PURCHASES.  OVER 55% OF THE

  $576,000 SPENT FOR DRUGS, X-RAY SUPPLIES AND EQUIPMENT AND

  HOSPITAL BEDS BY THE UNIVERSITY OF MARYLAND HOSPITAL AND SEVEN

  OTHER STATE HOSPITALS WERE OUT-OF-STATE PURCHASES."  /23/

SIMILAR FIGURES WERE SUPPLIED FOR OTHER STATES.  /24/  STRIKES AND WORK
STOPPAGES INVOLVING EMPLOYEES OF SCHOOLS AND HOSPITALS, EVENTS WHICH
UNFORTUNATELY ARE NOT INFREQUENT, /25/  OBVIOUSLY INTERRUPT AND BURDEN
THIS FLOW OF GOODS ACROSS STATE LINES.  IT IS THEREFORE CLEAR THAT A
"RATIONAL BASIS" EXISTS FOR CONGRESSIONAL ACTION PRESCRIBING MINIMUM
LABOR STANDARDS FOR SCHOOLS AND HOSPITALS, AS FOR OTHER IMPORTING
ENTERPRISES.  /26/ 

INDEED, APPELLANTS DO NOT CONTEND THAT LABOR CONDITIONS IN ALL
SCHOOLS AND HOSPITALS ARE WITHOUT THE REACH OF THE COMMERCE POWER, BUT
ONLY THAT THE ACT MAY NOT BE CONSTITUTIONALLY APPLIED TO STATE-OPERATED
INSTITUTIONS BECAUSE THAT POWER MUST YIELD TO STATE SOVEREIGNTY IN THE
PERFORMANCE OF GOVERNMENTAL FUNCTIONS.  THIS ARGUMENT SIMPLY IS NOT
TENABLE.  THERE IS NO GENERAL 

"DOCTRINE IMPLIED IN THE FEDERAL CONSTITUTION THAT 'THE TWO
GOVERNMENTS, NATIONAL AND STATE, ARE EACH TO EXERCISE ITS POWERS SO AS
NOT TO INTERFERE WITH THE FREE AND FULL EXERCISE OF THE POWERS OF THE
OTHER.'"  CASE V. BOWLES, 327 U.S. 92, 101. 

IN THE FIRST PLACE, IT IS CLEAR THAT THE FEDERAL GOVERNMENT, WHEN
ACTING WITHIN A DELEGATED POWER, MAY OVERRIDE COUNTERVAILING STATE
INTERESTS WHETHER THESE BE DESCRIBED AS "GOVERNMENTAL" OR "PROPRIETARY"
IN CHARACTER.  AS LONG AGO AS SANITARY DISTRICT V. UNITED STATES, 266
U.S. 405, THE COURT PUT TO REST THE CONTENTION THAT STATE CONCERNS
MIGHT CONSTITUTIONALLY "OUTWEIGH" THE IMPORTANCE OF AN OTHERWISE VALID
FEDERAL STATUTE REGULATING COMMERCE.  CONGRESS HAD IMPOSED STATUTORY
LIMITS ON THE DIVERSION OF WATER FROM LAKE MICHIGAN.  A UNANIMOUS
COURT, SPEAKING THROUGH MR. JUSTICE HOLMES, DECLARED THAT THE SANITARY
DISTRICT'S ALLEGED NEED FOR MORE WATER THAN FEDERAL LAW ALLOWED WAS
"IRRELEVANT" BECAUSE FEDERAL POWER OVER COMMERCE IS "SUPERIOR TO THAT
OF THE STATES TO PROVIDE FOR THE WELFARE OR NECESSITIES OF THEIR
INHABITANTS."  ID., AT 426.  SEE OKLAHOMA V. ATKINSON CO., 313 U.S.
508. 

THERE REMAINS, OF COURSE, THE QUESTION WHETHER ANY PARTICULAR
STATUTE IS AN "OTHERWISE VALID REGULATION OF COMMERCE."  THIS COURT HAS
ALWAYS RECOGNIZED THAT THE POWER TO REGULATE COMMERCE, THOUGH BROAD
INDEED, HAS LIMITS.  MR. CHIEF JUSTICE MARSHALL PAUSED TO RECOGNIZE
THOSE LIMITS IN THE COURSE OF THE OPINION THAT FIRST STAKED OUT THE
VAST EXPANSE OF FEDERAL AUTHORITY OVER THE ECONOMIC LIFE OF THE NEW
NATION.  GIBBONS V. OGDEN, 9 WHEAT.  1, 194-195.  MR. CHIEF JUSTICE
HUGHES, SPEAKING ONLY ONE TERM AFTER HE DELIVERED THE OPINION FOR THE
COURT IN JONES & LAUGHLIN, SUPRA, PUT THE MATTER THUS: 

"THE SUBJECT OF FEDERAL POWER IS STILL 'COMMERCE,' AND NOT ALL
COMMERCE BUT COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL
STATES.  THE EXPANSION OF ENTERPRISE HAS VASTLY INCREASED THE INTERESTS
OF INTERSTATE COMMERCE BUT THE CONSTITUTIONAL DIFFERENTIATION STILL
OBTAINS."  SANTA CRUZ CO. V. LABOR BOARD, 303 U.S. 453, 466.  THE COURT
HAS AMPLE POWER TO PREVENT WHAT THE APPELLLANTS PURPORT TO FEAR, "THE
UTTER DESTRUCTION OF THE STATE AS A SOVEREIGN POLITICAL ENTITY."  /27/ 

BUT WHILE THE COMMERCE POWER HAS LIMITS, VALID GENERAL REGULATIONS
OF COMMERCE DO NOT CEASE TO BE REGULATIONS OF COMMERCE BECAUSE A STATE
IS INVOLVED.  IF A STATE IS ENGAGING IN ECONOMIC ACTIVITIES THAT ARE
VALIDLY REGULATED BY THE FEDERAL GOVERNMENT WHEN ENGAGED IN BY PRIVATE
PERSONS, THE STATE TOO MAY BE FORCED TO CONFORM ITS ACTIVITIES TO
FEDERAL REGULATION.  THIS WAS SETTLED BY THE UNANIMOUS DECISION IN
UNITED STATES V. CALIFORNIA, 297 U.S. 175.  THE QUESTION WAS WHETHER A
RAILROAD, OPERATED BY THE STATE, AND ENTIRELY WITHIN THE STATE, AS A
NONPROFIT VENTURE FOR THE PURPOSE OF FACILITATING TRANSPORTATION AT A
PART, WAS NEVERTHELESS SUBJECT, LIKE OTHER RAILROADS, TO THE SAFETY
APPLIANCE ACT.  THE COURT FIRST HELD THAT ALTHOUGH THE RAILROAD
OPERATED ONLY BETWEEN POINTS IN CALIFORNIA, IT WAS WITHIN THE REACH OF
FEDERAL REGULATION OF INTERSTATE RAIL TRANSPORTATION.  297 U.S.,AT 181
183.  THE COURT THEN PROCEEDED TO CONSIDER THE CLAIM THAT THE STATE "IS
NOT SUBJECT TO THE FEDERAL SAFETY APPLIANCE ACT," AND REASONED AS
FOLLOWS: 

     "(WE THINK IT UNIMPORTANT TO SAY WHETHER THE STATE CONDUCTS
ITS

  RAILROAD IN ITS 'SOVEREIGN' OR IN ITS 'PRIVATE' CAPACITY.  THAT

  IN OPERATING ITS RAILROAD IT IS ACTING WITHIN A POWER RESERVED TO

  THE STATES CANNOT BE DOUBTED.  THE ONLY QUESTION WE NEED CONSIDER

  IS WHETHER THE EXERCISE OF THAT POWER, IN WHATEVER CAPACITY, MUST

  BE IN SUBORDINATION TO THE POWER TO REGULATE INTERSTATE COMMERCE,

  WHICH HAS BEEN GRANTED SPECIFICALLY TO THE NATIONAL GOVERNMENT. 

  THE SOVEREIGN POWER OF THE STATES IS NECESSARILY DIMINISHED TO

THE EXTENT OF THE GRANTS OF POWER TO THE FEDERAL GOVERNMENT IN

  THE CONSTITUTION. 

        .          .          .          . 

     "(WE LOOK TO THE ACTIVITIES IN WHICH THE STATES HAVE

  TRADITIONALLY ENGAGED AS MARKING THE BOUNDARY OF THE RESTRICTION

  UPON THE FEDERAL TAXING POWER.  BUT THERE IS NO SUCH LIMITATION

  UPON THE PLENARY POWER TO REGULATE COMMERCE.  THE STATE CAN NO

  MORE DENY THE POWER IF ITS EXERCISE HAS BEEN AUTHORIZED BY

  CONGRESS THAN CAN AN INDIVIDUAL."  297 U.S.,AT 183-185 (CITATIONS

  OMITTED). 

SEE ALSO BOARD OF TRUSTEES V. UNITED STATES, 289 U.S. 48, WHERE THE
COURT REJECTED A CLAIM OF "STATE SOVEREIGNTY" AND HELD THAT A STATE
UNIVERSITY THAT IMPORTED SCIENTIFIC APPARATUS FROM ABROAD COULD BE MADE
TO PAY IMPORT DUTIES IMPOSED PURSUANT TO THE POWER OVER FOREIGN
COMMERCE. 

THE PRINCIPLE OF UNITED STATES V. CALIFORNIA IS CONTROLLING HERE. 
APPELLANTS' ARGUMENT THAT THE STATUTE INVOLVED THERE WAS SOMEWHAT MORE
DIRECTLY AND OBVIOUSLY A REGULATION OF "COMMERCE," AND THAT THE STATE
ACTIVITY INVOLVED THERE WAS LESS CENTRAL TO STATE SOVEREIGNTY, MISSES
THE MARK.  THIS COURT HAS EXAMINED AND WILL CONTINUE TO EXAMINE FEDERAL
STATUTES TO DETERMINE WHETHER THERE IS A RATIONAL BASIS FOR REGARDING
THEM AS REGULATIONS OF COMMERCE AMONG THE STATES.  BUT IT WILL NOT
CARVE UP THE COMMERCE POWER TO PROTECT ENTERPRISES INDISTINGUISHABLE IN
THEIR EFFECT ON COMMERCE FROM PRIVATE BUSINESSES, SIMPLY BECAUSE THOSE
ENTERPRISES HAPPEN TO BE RUN BY THE STATES FOR THE BENEFIT OF THEIR
CITIZENS.  /28/

        III. 

APPELLANTS RAISE TWO FURTHER ISSUES, BOTH OF WHICH THE DISTRICT
COURT FOUND IT INAPPROPRIATE TO EXPLORE FULLY IN A DECLARATORY JUDGMENT
PROCEEDING.  WE AGREE.  IN EACH CASE WE CONCLUDE THAT NO SHOWING HAS
BEEN MADE THAT WARRANTS DECLARATORY OR INJUNCTIVE RELIEF.  IN NEITHER
INSTANCE, HOWEVER, DO WE MEAN TO PRECLUDE FUTURE CONSIDERATION ON THE
FACTS OF INDIVIDUAL CASES. 

THE FIRST QUESTION IS WHETHER THE ACT VIOLATES THE STATES' SOVEREIGN
IMMUNITY FROM SUIT GUARANTEED BY THE ELEVENTH AMENDMENT.  /29/  THE ACT
PROVIDES AS FOLLOWS: 

 "ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 206

  (WAGES) OR SECTION 207 (HOURS) OF THIS TITLE SHALL BE LIABLE TO

  THE EMPLOYEE OR EMPLOYEES AFFECTED IN THE AMOUNT OF THEIR UNPAID

  MINIMUM WAGES, OR THEIR UNPAID OVERTIME COMPENSATION AS THE CASE

  MAY BE, AND IN AN ADDITIONAL EQUAL AMOUNT AS LIQUIDATED DAMAGES. 

  ACTION TO RECOVER SUCH LIABILITY MAY BE MAINTAINED IN ANY COURT

  OF COMPETENT JURISDICTION . . . ."  29 U.S.C. 216(B). 

THE ACT ALSO PROVIDES FOR SUITS BY THE SECRETARY OF LABOR TO RECOVER
UNPAID MINIMUM WAGES OR OVERTIME COMPENSATION, 29 U.S.C. 216(C) AND FOR
INJUNCTIVE RELIEF AGAINST VIOLATIONS, 29 U.S.C. 217. 

PERCOLATING THROUGH EACH OF THESE PROVISIONS FOR RELIEF ARE
INTERESTS OF THE UNITED STATES AND PROBLEMS OF IMMUNITY, AGENCY, AND
CONSENT TO SUIT.  CF. PARDEN V. TERMINAL R. CO., 377 U.S. 184.  THE
CONSTITUTIONALITY OF APPLYING THE SUBSTANTIVE REQUIREMENTS OF THE ACT
TO THE STATES IS NOT, IN OUR VIEW, AFFECTED BY THE POSSIBILITY THAT ONE
OR MORE OF THE REMEDIES THE ACT PROVIDES MIGHT NOT BE AVAILABLE WHEN A
STATE IS THE EMPLOYER-DEFENDANT.  PARTICULARLY IN LIGHT OF THE ACT'S
"SEPARABILITY" PROVISION, 29 U.S.C. 219, WE SEE NO REASON TO STRIKE
DOWN OTHERWISE VALID PORTIONS OF THE ACT SIMPLY BECAUSE OTHER PORTIONS
MIGHT NOT BE CONSTITUTIONAL AS APPLIED TO HYPOTHETICAL FUTURE CASES. 
AT THE SAME TIME, WE DECLINE TO BE DRAWN INTO AN ABSTRACT DISCUSSION OF
THE NUMEROUS COMPLEX ISSUES THAT MIGHT ARISE IN CONNECTION WITH THE
ACT'S VARIOUS REMEDIAL PROVISIONS.  THEY ARE ALMOST IMPOSSIBLE AND MOST
UNNECESSARY TO RESOLVE IN ADVANCE OF PARTICULAR FACTS STATED CLAIMS,
AND IDENTIFIED PLAINTIFFS AND DEFENDANTS.  QUESTIONS OF STATE IMMUNITY
ARE THEREFORE RESERVED FOR APPROPRIATE FUTURE CASES. 

APPELLANTS' REMAINING CONTENTION PRESENTS SIMILAR PROBLEMS.  IN
ORDER TO BE COVERED BY THE ACT, AN EMPLOYER HOSPITAL OR SCHOOL MUST IN
FACT HAVE 

"EMPLOYEES ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE INCLUDING EMPLOYEES HANDLING, SELLING, OR OTHERWISE WORKING ON
GOODS THAT HAVE BEEN MOVED IN OR PRODUCED FOR COMMERCE BY ANY PERSON .
. . ."  29 U.S.C. 203(S) (1964 ED., SUPP. II).  APPELLANTS ASK US TO
DECLARE THAT HOSPITALS AND SCHOOLS SIMPLY HAVE NO SUCH EMPLOYEES.  THE
WORD "GOODS" IS ELSEWHERE DEFINED TO EXCLUDE "GOODS AFTER THEIR
DELIVERY INTO THE ACTUAL PHYSICAL POSSESSION OF THE ULTIMATE CONSUMER
THEREOF OTHER THAN A PRODUCER, MANUFACTURER, OR PROCESSOR THEREOF."  29
U.S.C. 203(I).  APPELLANTS CONTEND THAT HOSPITALS AND SCHOOLS ARE THE
ULTIMATE CONSUMERS OF THE OUT-OF-STATE PRODUCTS THEY BUY, AND HENCE
NONE OF THEIR EMPLOYEES HANDLES "GOODS" IN THE STATUTORY SENSE. 

WE THINK THE DISTRICT COURT WAS CORRECT IN DECLINING TO DECIDE, IN
THE ABSTRACT AND IN GENERAL, WHETHER SCHOOLS AND HOSPITALS HAVE
EMPLOYEES ENGAGED IN COMMERCE OR PRODUCTION.  SUCH INSTITUTIONS, AS A
WHOLE, OBVIOUSLY PURCHASE A VAST RANGE OF OUT-OF-STATE COMMODITIES. 
THESE ARE PUT TO A WIDE VARIETY OF USES, PRESUMABLY RANGING FROM
PHYSICAL INCORPORATION OF BUILDING MATERIALS INTO HOSPITAL AND SCHOOL
STRUCTURES, TO OVER-THE-COUNTER SALE FOR CASH TO PATIENTS, VISITORS,
STUDENTS, AND TEACHERS.  WHETHER PARTICULAR INSTITUTIONS HAVE EMPLOYEES
HANDLING GOODS IN COMMERCE, CF. WALLING V. JACKSONVILLE PAPER CO., 317
U.S. 564, MAY BE CONSIDERED AS OCCASION REQUIRES. 

THE JUDGMENT OF THE DISTRICT COURT IS

              AFFIRMED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  52 STAT. 1060. 

/2/  SECS. 6(A), 7(A), 52 STAT. 1062, 1063. 

/3/  SEC. 3(D), 52 STAT. 1060. 

/4/  THE MINIMUM WAGE REQUIREMENT, 29 U.S.C. 206 (1964 ED.,
SUPP.II), NOW READS AS FOLLOWS:  "(A) EVERY EMPLOYER SHALL PAY TO EACH
OF HIS EMPLOYEES WHO IN ANY WORKWEEK IS ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE, OR IS EMPLOYED IN AN ENTERPRISE
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE, WAGES
AT THE FOLLOWING RATES . . . ."  THE MAXIMUM HOURS REQUIREMENT, 29
U.S.C. 207 (1964 ED., SUPP. II), NOW CONTAINS A SIMILAR DEFINITION OF
COVERED EMPLOYEES.  THE TERM "ENTERPRISE ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE" IS DEFINED BY 29 U.S.C. 203(S) (1964
ED., SUPP. II) TO MEAN "AN ENTERPRISE WHICH HAS EMPLOYEES ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE, INCLUDING
EMPLOYEES HANDLING, SELLING, OR OTHERWISE WORKING ON GOODS THAT HAVE
BEEN MOVED IN OR PRODUCED FOR COMMERCE BY ANY PERSON, AND WHICH--
(FALLS IN ANY ONE OF FOUR LISTED CATEGORIES) . . . ." 

/5/  80 STAT. 832, 29 U.S.C. 203(S)(4) (1964 ED., SUPP. II). 

/6/  80 STAT. 831, 29 U.S.C. 203(D) (1964 ED., SUPP. II). 

/7/  29 U.S.C. 216(B), 216(C), 217. 

/8/  269 F.SUPP.  826. 

/9/  29 U.S.C. 206(A), 207(A) (1964 ED., SUPP. II). 

/10/  29 U.S.C. 203(S) (1964 ED., SUPP. II). 

/11/  312 U.S.,AT 119.  THE ACT PROHIBITED BOTH THE INTERSTATE
TRANSPORTATION OF GOODS PRODUCED UNDER SUBSTANDARD LABOR CONDITIONS,
AND THE MAINTENANCE OF SUCH CONDITIONS THEMSELVES.  THE FIRST
PROHIBITION, A RESTRAINT ON COMMERCE ITSELF, WAS UPHELD AGAINST THE
CONTENTION THAT ITS REAL MOTIVE OR PURPOSE WAS TO REGULATE
MANUFACTURING.  THE LANGUAGE QUOTED IN THE TEXT ANSWERED A CHALLENGE TO
THE SECOND PROHIBITION. 

/12/  SECTION 2 OF THE ACT, 52 STAT. 1060, 29 U.S.C. 202, READS IN
PART AS FOLLOWS: 

"THE CONGRESS HEREBY FINDS THAT THE EXISTENCE, IN INDUSTRIES ENGAGED
IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE, OF LABOR
CONDITIONS DETRIMENTAL TO THE MAINTENANCE OF THE MINIMUM STANDARD OF
LIVING NECESSARY FOR HEALTH, EFFICIENCY, AND GENERAL WELL-BEING OF
WORKERS (1) CAUSES COMMERCE AND THE CHANNELS AND INSTRUMENTALITIES OF
COMMERCE TO BE USED TO SPREAD AND PERPETUATE SUCH LABOR CONDITIONS
AMONG THE WORKERS OF THE SEVERAL STATES; (2) BURDENS COMMERCE AND THE
FREE FLOW OF GOODS IN COMMERCE; (3) CONSTITUTES AN UNFAIR METHOD OF
COMPETITION IN COMMERCE . . . ." 

/13/  IN KATZENBACH V. MCCLUNG, IT APPEARED THAT CONGRESS HAD
UNDERTAKEN EXTENSIVE INVESTIGATION OF THE COMMERCIAL NEED FOR THE
STATUTE THERE INVOLVED.  A MAJOR CONTENTION OF THE APPELLANTS IN THE
PRESENT CASE IS THAT THE LEGISLATIVE HISTORY OF THE AMENDMENTS NOW
BEFORE US LAYS NO FACTUAL PREDICATE FOR EXTENSIONS OF THE ORIGINAL
ACT.  TO THE EXTENT THAT THIS IS TRUE, IT IS QUITE IRRELEVANT.  THE
ORIGINAL ACT STATED CONGRESS' FINDINGS AND PURPOSES AS OF 1938. 
SUBSEQUENT EXTENSIONS OF COVERAGE WERE PRESUMABLY BASED ON SIMILAR
FINDINGS AND PURPOSES WITH RESPECT TO THE AREAS NEWLY COVERED.  WE ARE
NOT CONCERNED WITH THE MANNER IN WHICH CONGRESS REACHED ITS FACTUAL
CONCLUSIONS.     /14/  SECTION 2, 29 U.S.C. 202, DECLARES IN PART THAT
THE EXISTENCE OF SUBSTANDARD LABOR CONDITIONS "LEADS TO LABOR DISPUTES
BURDENING AND OBSTRUCTING COMMERCE AND THE FREE FLOW OF GOODS IN
COMMERCE." 

/15/  SEE INFRA, AT 194-195. 

/16/  49 STAT. 449, AS AMENDED, 29 U.S.C. 151 ET SEQ. 

/17/  SEC. 1, 49 STAT. 449. 

/18/  312 U.S.,AT 120-121. 

/19/  IBID. 

/20/  29 U.S.C. 213(1) (1964 ED., SUPP. II). 

/21/  SEE 269 F.SUPP.,AT 832 (OPINION OF JUDGE WINTER). 

/22/  IN THE COURT BELOW, JUDGE THOMSEN WAS TROUBLED BY THE
APPLICATION OF THE OVERTIME PROVISIONS TO SCHOOL AND HOSPITAL
PERSONNEL, WHO MAY HAVE DIFFERENT ARRANGEMENTS FOR HOURS OF WORK THAN
EMPLOYEES OF OTHER ENTERPRISES.  269 F.SUPP.,AT 851.  CONGRESS
INDICATED ITS ATTENTION TO THIS PROBLEM IN 29 U.S.C. 207 (1964 ED.,
SUPP. II), WHICH PROVIDES SPECIAL MEANS OF COMPUTING HOSPITAL
OVERTIME.  THAT THIS PROVISION MAY SEEM TO SOME INADEQUATE, AND THAT NO
SIMILAR PROVISION WAS MADE IN THE CASE OF SCHOOLS, ARE MATTERS OUTSIDE
JUDICIAL COGNIZANCE.  THE ACT'S OVERTIME PROVISIONS APPLY TO A WIDE
RANGE OF ENTERPRISES, WITH DIFFERING PATTERNS OF WORKTIME; THEY WERE
INTENDED TO CHANGE SOME OF THOSE PATTERNS.  IT IS NOT FOR THE COURTS TO
DECIDE THAT SUCH CHANGES AS MAY BE REQUIRED ARE BENEFICIAL IN THE CASE
OF SOME INDUSTRIES AND HARMFUL IN OTHERS. 

/23/  269 F.SUPP.,AT 833 (OPINION OF JUDGE WINTER). 

/24/  SEE IBID. 

/25/  SEE U.S. DEPARTMENT OF LABOR, SUMMARY RELEASE, WORK STOPPAGES
INVOLVING GOVERNMENT EMPLOYEES, 1966. 

/26/  BOTH UNDER THE PRESENT ACT AND THE NATIONAL LABOR RELATIONS
ACT, NUMEROUS CASES HAVE HELD THAT THE ENGAGEMENT OF AN ENTERPRISE IN
INTERSTATE COMMERCE MAY CONSIST OF IMPORTATION.  E.G., WIRTZ V. HARDIN
& CO., 253 F.SUPP.  579, AFF'D, 359 F.2D 792 (FLSA); N.L.R.B. V. BAKER
HOTEL, 311 F.2D 528 (NLRA). 

/27/  THE DISSENT SUGGESTS THAT BY USE OF AN "ENTERPRISE CONCEPT"
SUCH AS THAT WE HAVE UPHELD HERE, CONGRESS COULD UNDER TODAY'S DECISION
DECLARE A WHOLE STATE AN "ENTERPRISE" AFFECTING COMMERCE AND TAKE OVER
ITS BUDGETING ACTIVITIES.  THIS REFLECTS, WE THINK, A MISREADING OF THE
ACT, OF WICKARD V. FILBURN, SUPRA, AND OF OUR DECISION.  THE ACT'S
DEFINITION OF "ENTERPRISE" READS IN PART AS FOLLOWS: 

"'ENTERPRISE' MEANS THE RELATED ACTIVITIES PERFORMED (EITHER THROUGH
UNIFIED OPERATION OR COMMON CONTROL) BY ANY PERSON OR PERSONS FOR A
COMMON BUSINESS PURPOSE . . . BUT SHALL NOT INCLUDE THE RELATED
ACTIVITIES PERFORMED FOR SUCH ENTERPRISE BY AN INDEPENDENT CONTRACTOR .
. . ."  29 U.S.C. 203(R).  WE UPHOLD THE ENTERPRISE CONCEPT ON THE
EXPLICIT PREMISE THAT AN "ENTERPRISE" IS A SET OF OPERATIONS WHOSE
ACTIVITIES IN COMMERCE WOULD ALL BE EXPECTED TO BE AFFECTED BY THE
WAGES AND HOURS OF ANY GROUP OF EMPLOYEES, WHICH IS WHAT CONGRESS
OBVIOUSLY INTENDED.  SO DEFINED, THE TERM IS QUITE CONGNIZANT OF
LIMITATIONS ON THE COMMERCE POWER.  NEITHER HERE NOR IN WICKARD HAS THE
COURT DECLARED THAT CONGRESS MAY USE A RELATIVELY TRIVIAL IMPACT ON
COMMERCE AS AN EXCUSE FOR BROAD GENERAL REGULATION OF STATE OR PRIVATE
ACTIVITIES.  THE COURT HAS SAID ONLY THAT WHERE A GENERAL REGULATORY
STATUTE BEARS A SUBSTANTIAL RELATION TO COMMERCE, THE DE MINIMIS
CHARACTER OF INDIVIDUAL INSTANCES ARISING UNDER THAT STATUTE IS OF NO
CONSEQUENCE. 

/28/  NOR IS IT RELEVANT THAT CONGRESS ORIGINALLY CHOSE TO EXEMPT
ALL STATE ENTERPRISES AND LATER PARTIALLY REMOVED THAT EXEMPTION. 
CONGRESS WAS AS FREE TO INCLUDE STATE ACTIVITIES WITHIN THE GENERAL
REGULATION AT A LATER DATE AS IT WOULD HAVE BEEN TO OMIT THE EXEMPTION
IN THE FIRST PLACE. 

/29/  "THE JUDICIAL POWER OF THE UNITED STATES SHALL NOT BE CONSTRUED
TO EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED AGAINST
ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER STATE, OR BY CITIZENS
OR SUBJECTS OF ANY FOREIGN STATE." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART CONCURS,
DISSENTING. 

THE COURT'S OPINION SKILLFULLY BRINGS EMPLOYEES OF STATE-OWNED
ENTERPRISES WITHIN THE REACH OF THE COMMERCE CLAUSE; AND AS AN EXERCISE
IN SEMANTICS IT IS UNEXCEPTIONABLE IF CONGRESSIONAL FEDERALISM IS THE
STANDARD.  BUT WHAT IS DONE HERE IS NONETHELESS SUCH A SERIOUS INVASION
OF STATE SOVEREIGNTY PROTECTED BY THE TENTH AMENDMENT THAT IT IS IN MY
VIEW NOT CONSISTENT WITH OUR CONSTITUTIONAL FEDERALISM. 

THE CASE HAS SOME OF THE ECHOES OF NEW YORK V. UNITED STATES, 326
U.S. 572, WHERE A DIVIDED COURT HELD THAT THE FEDERAL GOVERNMENT COULD
TAX THE SALE OF MINERAL WATERS OWNED AND MARKETED BY NEW YORK.  MY
DISSENT WAS IN ESSENCE THAT THE DECISION MADE THE STATES PAY THE
FEDERAL GOVERNMENT "FOR THE PRIVILEGE OF EXERCISING THE POWERS OF
SOVEREIGNTY GUARANTEED THEM BY THE CONSTITUTION."  326 U.S.,AT 596. 

THE PRESENT FEDERAL LAW TAKES A MUCH MORE SERIOUS BITE.  THE 1966
AMENDMENTS TO THE FAIR LABOR STANDARDS ACT REQUIRE THE STATES TO PAY
SCHOOL AND HOSPITAL EMPLOYEES A MINIMUM WAGE ESCALATING TO $1.60 PER
HOUR IN 1971.  /1/  AS A GENERAL RULE, THE AMENDMENTS MAKE THE STATES
PAY THEIR EMPLOYEES WHO WORK OVER 40 HOURS A WEEK OVERTIME COMPENSATION
OF 1 1/2 TIMES THEIR REGULAR WAGE.  /2/  THERE ARE CIVIL SANCTIONS
AGAINST THE STATE AND ITS POLITICAL SUBDIVISIONS, /3/  AND STATE
OFFICIALS MAY, APPARENTLY, BE SUBJECTED TO CRIMINAL PENALTIES.  /4/
THE IMPACT IS PERVASIVE, STRIKING AT ALL LEVELS OF STATE GOVERNMENT. 
AS JUDGE NORTHROP SAID IN HIS DISSENT BELOW, 269 F.SUPP.  826, 853: 

     "BY THIS ACT CONGRESS IS FORCING, UNDER THREAT OF CIVIL

  LIABILITY AND CRIMINAL PENALTIES, THE STATE LEGISLATURE OR THE

  RESPONSIBLE POLITICAL SUBDIVISION OF THE STATE 

     "1.  TO INCREASE TAXES (AN IMPOSSIBILITY IN SOME OF THE

  POLITICAL SUBDIVISIONS WITHOUT A STATE CONSTITUTIONAL AMENDMENT);

  OR 

     "2.  TO CURTAIL THE EXTENT AND CALIBRE OF SERVICES IN THE

  PUBLIC HOSPITALS AND EDUCATIONAL AND RELATED INSTITUTIONS OF THE

  STATE; OR 

     "3.  TO REDUCE INDISPENSABLE SERVICES IN OTHER GOVERNMENTAL

  ACTIVITIES TO MEET THE BUDGETS OF THOSE ACTIVITIES FAVORED BY THE

  UNITED STATES CONGRESS; OR 

"4.  TO REFRAIN FROM ENTERING NEW FIELDS OF GOVERNMENTAL

ACTIVITY NECESSITATED BY CHANGING SOCIAL CONDITIONS." 

THERE CAN BE NO DOUBT BUT THAT THE 1966 AMENDMENTS TO THE FAIR LABOR
STANDARDS ACT DISRUPT THE FISCAL POLICY OF THE STATES AND THREATEN
THEIR AUTONOMY IN THE REGULATION OF HEALTH AND EDUCATION.  YET, THE
COURT CONSIDERS IT IRRELEVANT THAT THESE FEDERAL REGULATIONS ARE TO BE
ENFORCED AGAINST SOVEREIGN STATES AND LIMITS ITS CONSIDERATION TO
"WHETHER THERE IS A RATIONAL BASIS FOR REGARDING THEM AS REGULATIONS OF
COMMERCE AMONG THE STATES." 

THE STATES ARE NOT TOTALLY IMMUNE FROM FEDERAL REGULATION UNDER THE
COMMERCE POWER OF CONGRESS.  PARDEN V. TERMINAL R. CO., 377 U.S. 184,
AND UNITED STATES V. CALIFORNIA, 297 U.S. 175, SUBJECTED STATE-OWNED
RAILROADS TO THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. 51 ET
SEQ., AND THE SAFETY APPLIANCE ACT, 45 U.S.C. 1 ET SEQ.; BOARD OF
TRUSTEES V. UNITED STATES, 289 U.S. 48, REQUIRED A STATE UNIVERSITY TO
PAY FEDERAL CUSTOMS DUTIES ON EDUCATIONAL EQUIPMENT IT IMPORTED.  IN
OKLAHOMA V. ATKINSON CO., 313 U.S. 508, THE FEDERAL GOVERNMENT WAS
PERMITTED TO CONDEMN 100,000 ACRES OF STATE LAND FOR A RESERVOIR TO
CONTROL COMMERCE-PARALYZING FLOODS.  IN SANITARY DISTRICT V. UNITED
STATES, 266 U.S. 405, A STATE WAS PROHIBITED FROM DIVERTING WATER FROM
THE GREAT LAKES NECESSARY TO ENSURE NAVIGABILITY, A PHASE OF COMMERCE. 

IN NONE OF THESE CASES, HOWEVER, DID THE FEDERAL REGULATION
OVERWHELM STATE FISCAL POLICY.  IT IS ONE THING TO FORCE A STATE TO
PURCHASE SAFETY EQUIPMENT FOR ITS RAILROAD AND ANOTHER TO FORCE IT
EITHER TO SPEND SEVERAL MILLION MORE DOLLARS ON HOSPITALS AND SCHOOLS
OR SUBSTANTIALLY REDUCE SERVICES IN THESE AREAS.  THE COMMERCE POWER
CASES THE COURT RELIES ON ARE SIMPLY NOT APROPOS. 

IN THE AREA OF TAXATION, ON THE OTHER HAND, THE COURT HAS RECOGNIZED
THAT THE CONSTITUTIONAL SCHEME OF FEDERALISM IMPOSES LIMITS ON THE
POWER OF THE NATIONAL GOVERNMENT TO TAX THE STATES.  E.G., NEW YORK V.
UNITED STATES, 326 U.S. 572.  THE COURT WILL NOT PERMIT THE FEDERAL
GOVERNMENT TO UTILIZE THE TAXING POWER TO SNUFF OUT STATE SOVEREIGNTY,
METCALF & EDDY V. MITCHELL, 269 U.S. 514, RECOGNIZING THAT THE POWER TO
TAX IS THE POWER TO DESTROY.  M'CULLOCH V. MARYLAND, 4 WHEAT.  316,
431.  THE EXERCISE OF THE COMMERCE POWER MAY ALSO DESTROY STATE
SOVEREIGNTY.  ALL ACTIVITIES AFFECTING COMMERCE, EVEN IN THE MINUTEST
DEGREE, WICKARD V. FILBURN, 317 U.S. 111, MAY BE REGULATED AND
CONTROLLED BY CONGRESS.  COMMERCIAL ACTIVITY OF EVERY STRIPE MAY IN
SOME WAY INTERFERE "WITH THE (INTERSTATE) FLOW OF MERCHANDISE" OR
INTERSTATE TRAVEL.  KATZENBACH V. MCCLUNG, 379 U.S. 294, 299-300.  THE
IMMENSE SCOPE OF THIS CONSTITUTIONAL POWER IS DEMONSTRATED BY THE
COURT'S APPROVAL IN THIS CASE OF REGULATION ON THE BASIS OF THE
"ENTERPRISE CONCEPT"-- WHICH IS ENTIRELY PROPER WHEN THE REGULATED
"BUSINESSES" ARE NOT ESSENTIAL FUNCTIONS BEING CARRIED ON BY THE
STATES. 

YET STATE GOVERNMENT ITSELF IS AN "ENTERPRISE" WITH A VERY
SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE, FOR THE STATES SPEND
BILLIONS OF DOLLARS EACH YEAR ON PROGRAMS THAT PURCHASE GOODS FROM
INTERSTATE COMMERCE, HIRE EMPLOYEES WHOSE LABOR STRIFE COULD DISRUPT
INTERSTATE COMMERCE, AND ACT ON SUCH COMMERCE IN COUNTLESS SUBTLE
WAYS.  IF CONSTITUTIONAL PRINCIPLES OF FEDERALISM RAISE NO LIMITS TO
THE COMMERCE POWER WHERE REGULATION OF STATE ACTIVITIES ARE CONCERNED,
COULD CONGRESS COMPEL THE STATES TO BUILD SUPERHIGHWAYS CRISSCROSSING
THEIR TERRITORY IN ORDER TO ACCOMMODATE INTERSTATE VEHICLES, TO PROVIDE
INNS AND EATING PLACES FOR INTERSTATE TRAVELERS, TO QUADRUPLE THEIR
POLICE FORCES IN ORDER TO PREVENT COMMERCE-CRIPPLING RIOTS, ETC?  COULD
THE CONGRESS VIRTUALLY DRAW UP EACH STATE'S BUDGET TO AVOID "DISRUPTIVE
EFFECTS) . . . ON COMMERCIAL INTERCOURSE."?  ATLANTA MOTEL V. UNITED
STATES, 279 U.S. 241, 257. 

IF ALL THIS CAN BE DONE, THEN THE NATIONAL GOVERNMENT COULD DEVOR
THE ESSENTIALS OF STATE SOVEREIGNTY, THOUGH THAT SOVEREIGNTY IS
ATTESTED BY TENTH AMENDMENT.  THE PRINCIPLES WHICH SHOULD GUIDE US IN
THIS CASE ARE SET FORTH IN THE SEVERAL OPINIONS IN NEW YORK V. UNITED
STATES, SUPRA.  AS MR. CHIEF JUSTICE STONE SAID THERE, THE NATIONAL
GOVERNMENT MAY NOT "INTERFERE UNDULY WITH THE STATE'S PERFORMANCE OF
ITS SOVEREIGN FUNCTIONS OF GOVERNMENT."  326 U.S.,AT 587.  IT MAY NOT
"IMPAIR THE STATE'S FUNCTIONS OF GOVERNMENT," ID., AT 594 (DISSENTING
OPINION OF MR. JUSTICE DOUGLAS, JOINED BY MR. JUSTICE BLACK).  AS MR.
JUSTICE FRANKFURTER OBSERVED, "(THERE ARE, OF COURSE, STATE ACTIVITIES
. . . THAT PARTAKE OF UNIQUENESS FROM THE POINT OF VIEW OF
INTERGOVERNMENTAL RELATIONS."  ID., AT 582. 

WHETHER, IN A GIVEN CASE, A PARTICULAR COMMERCE POWER REGULATION BY
CONGRESS OF STATE ACTIVITY IS PERMISSIBLE DEPENDS ON THE FACTS.  THE
COURT MUST DRAW THE "CONSTITUTIONAL LINE BETWEEN THE STATE AS
GOVERNMENT AND THE STATE AS TRADER . . . ."  NEW YORK V. UNITED STATES,
SUPRA, AT 579 (OPINION OF MR. JUSTICE FRANKFURTER).  IN THIS CASE THE
STATE AS A SOVEREIGN POWER IS BEING SERIOUSLY TAMPERED WITH,
POTENTIALLY CRIPPLED. 

I WOULD REVERSE THE JUDGMENT BELOW. 

ALLAN M. WILNER, ASSISTANT ATTORNEY GENERAL OF MARYLAND, AND CHARLES
ALAN WRIGHT ARGUED THE CAUSE FOR APPELLANTS.  WITH MR. WILNER ON THE
BRIEF FOR APPELLANT THE STATE OF MARYLAND ET AL.WERE THE ATTORNEYS
GENERAL FOR THEIR RESPECTIVE STATES AS FOLLOWS:  FRANCIS B. BURCH OF
MARYLAND, CRAWFORD C. MARTIN OF TEXAS, MACDONALD GALLION OF ALABAMA,
DARRELL F. SMITH OF ARIZONA, JOE PURCELL OF ARKANSAS, DUKE W. DUNBAR OF
COLORADO, DAVID BUCKSON OF DELAWARE, EARL FAIRCLOTH OF FLORIDA, BERT T.
KOBAYASHI OF HAWAII, WILLIAM G. CLARK OF ILLINOIS, RICHARD C. TURNER OF
IOWA, ROBERT C. LONDERHOLM OF KANSAS, JAMES S. ERWIN OF MAINE, ELLIOT
L. RICHARDSON OF MASSACHUSETTS, JOE T. PATTERSON OF MISSISSIPPI, NORMAN
H. ANDERSON OF MISSOURI, CLARENCE A. H. MEYER OF NEBRASKA, ARTHUR J.
SILLS OF NEW JERSEY, BOSTON E. WITT OF NEW MEXICO, T. WADE BRUTON OF
NORTH CAROLINA, HELGI JOHANNESON OF NORTH DAKOTA, WILLIAM B. SAXBE OF
OHIO, G. T. BLANKENSHIP OF OKLAHOMA, DANIEL R. MCLEOD OF SOUTH
CAROLINA, FRANK L. FARRAR OF SOUTH DAKOTA, JAMES L. OAKES OF VERMONT,
ROBERT Y. BUTTON OF VIRGINIA AND JAMES E. BARRETT OF WYOMING; AND A. J.
CARUBBI, JR., EXECUTIVE ASSISTANT ATTORNEY GENERAL OF TEXAS, HAWTHORNE
PHILLIPS, ASSISTANT ATTORNEY GENERAL OF TEXAS, AND JAMES V. NOBLE,
ASSISTANT ATTORNEY GENERAL OF NEW MEXICO.  WITH MR. WRIGHT ON THE BRIEF
FOR APPELLANT THE STATE OF TEXAS WERE MESSRS.  MARTIN, CARUBBI, AND
PHILLIPS, AND NOLA WHITE, FIRST ASSISTANT ATTORNEY GENERAL.  CECIL A.
MORGAN FILED A BRIEF FOR APPELLANT FORT WORTH INDEPENDENT SCHOOL
DISTRICT. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR APPELLEES.  WITH HIM
ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL WEISL, LOUIS F. CLAIBORNE,
JOHN S. MARTIN, JR., AND MORTON HOLLANDER. 

BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY J. ALBERT
WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION
OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND BY HENRY KAISER
AND RONALD ROSENBERG FOR THE AMERICAN FEDERATION OF STATE, COUNTY ,AND
MUNICIPAL EMPLOYEES, AFL-CIO. 
..END :















CHENG FAN KWOK V. IMMIGRATION SERV., 392 U.S. 206 


       CHENG FAN KWOK V. IMMIGRATION AND NATURALIZATION SERVICE. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT. 

        NO. 638.  ARGUED MAY 2, 1968.-- DECIDED JUNE 10, 1968. 


JURISDICTION TO REVIEW THE DENIAL BY A DISTRICT DIRECTOR OF
IMMIGRATION OF A STAY OF DEPORTATION, REQUESTED BY A CHINESE SEAMAN WHO
HAD DESERTED HIS SHIP AND REMAINED UNLAWFULLY IN THIS COUNTRY, WHERE
THE PERTINENT ORDER WAS NOT ENTERED IN THE COURSE OF A DEPORTATION
PROCEEDING CONDUCTED UNDER SEC. 242(B) OF THE IMMIGRATION AND
NATIONALITY ACT, IS NOT, UNDER THE PROVISIONS OF SEC. 106(A), VESTED
EXCLUSIVELY IN THE COURTS OF APPEALS.  PP. 208-218. 

381 F.2D 542, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE NARROW QUESTION PRESENTED BY THIS CASE IS WHETHER JURISDICTION TO
REVIEW THE DENIAL OF A STAY OF DEPORTATION, IF THE PERTINENT ORDER HAS
NOT BEEN ENTERED IN THE COURSE OF A PROCEEDING CONDUCTED UNDER SEC.
242(B) OF THE IMMIGRATION AND NATIONALITY ACT, 66 STAT. 209, 8 U.S.C.
1252(B), IS, UNDER SEC. 106(A) OF THE ACT, 75 STAT. 651, 8 U.S.C.
1105AA), VESTED EXCLUSIVELY IN THE COURTS OF APPEALS.  /1/  THE
QUESTION ARISES FROM THE FOLLOWING CIRCUMSTANCES. 

PETITIONER, A NATIVE AND CITIZEN OF CHINA, EVIDENTLY ENTERED THE
UNITED STATES IN 1965 AS A SEAMAN.  /2/  THE TERMS OF HIS ENTRY
PERMITTED HIM TO REMAIN IN THIS COUNTRY FOR THE PERIOD DURING WHICH HIS
VESSEL WAS IN PORT, PROVIDED THAT THIS DID NOT EXCEED 29 DAYS.  SEE 8
U.S.C. 1282(A).  /3/  HE DESERTED HIS VESSEL, AND REMAINED UNLAWFULLY
IN THE UNITED STATES.  AFTER PETITIONER'S EVENTUAL APPREHENSION,
DEPORTATION PROCEEDINGS WERE CONDUCTED BY A SPECIAL INQUIRY OFFICER
UNDER THE AUTHORITY OF SEC. 242(B).  PETITIONER CONCEDED HIS
DEPORTABILITY, BUT SOUGHT AND OBTAINED PERMISSION TO DEPART THE UNITED
STATES VOLUNTARILY.  /4/  DESPITE HIS PROTESTATIONS OF GOOD FAITH,
PETITIONER DID NOT VOLUNTARILY DEPART, AND WAS ULTIMATELY ORDERED TO
SURRENDER FOR DEPORTATION.  HE THEN REQUESTED A STAY OF DEPORTATION
FROM A DISTRICT DIRECTOR OF IMMIGRATION, PENDING THE SUBMISSION AND
DISPOSITION OF AN APPLICATION FOR ADJUSTMENT OF STATUS UNDER 8 U.S.C.
1153(A)(7) (1964 ED., SUPP. II).  /5/  THE DISTRICT DIRECTOR CONCLUDED
THAT PETITIONER IS INELIGIBLE FOR SUCH AN ADJUSTMENT OF STATUS, AND
DENIED A STAY OF DEPORTATION. 

PETITIONER THEREUPON COMMENCED THESE PROCEEDINGS IN THE COURT OF
APPEALS FOR THE THIRD CIRCUIT, PETITIONING FOR REVIEW OF THE DENIAL OF
A STAY.  THE COURT OF APPEALS HELD THAT THE PROVISIONS OF SEC. 106(A),
UNDER WHICH IT WOULD OTHERWISE HAVE EXCLUSIVE JURISDICTION TO REVIEW
THE DISTRICT DIRECTOR'S ORDER, ARE INAPPLICABLE TO ORDERS DENYING
ANCILLARY RELIEF UNLESS THOSE ORDERS EITHER ARE ENTERED IN THE COURSE
OF A PROCEEDING CONDUCTED UNDER SEC. 242(B), OR ARE DENIALS OF MOTIONS
TO REOPEN SUCH PROCEEDINGS.  THE COURT DISMISSED THE PETITION FOR WANT
OF JURISDICTION.  381 F.2D 542.  WE GRANTED CERTIORARI BECAUSE THE
COURTS OF APPEALS HAVE DISAGREED AS TO THE PROPER CONSTRUCTION OF THE
PERTINENT STATUTORY PROVISIONS.  /6/  390 U.S. 918.  FOR REASONS THAT
FOLLOW, WE AFFIRM. 

        I. 

IT IS USEFUL FIRST TO SUMMARIZE THE RELEVANT PROVISIONS OF THE
IMMIGRATION AND NATIONALITY ACT AND OF THE REGULATIONS PROMULGATED
UNDER THE ACT'S AUTHORITY.  SECTION 242(B) PROVIDES A DETAILED
ADMINISTRATIVE PROCEDURE FOR DETERMINING WHETHER AN ALIEN MAY BE
DEPORTED.  IT PERMITS THE ENTRY OF AN ORDER OF DEPORTATION ONLY UPON
THE BASIS OF A RECORD MADE IN A PROCEEDING BEFORE A SPECIAL INQUIRY
OFFICER, AT WHICH THE ALIEN IS ASSURED RIGHTS TO COUNSEL, TO A
REASONABLE OPPORTUNITY TO EXAMINE THE EVIDENCE AGAINST HIM, TO CROSS
EXAMINE WITNESSES, AND TO PRESENT EVIDENCE IN HIS OWN BEHALF.  BY
REGULATION, VARIOUS FORMS OF DISCRETIONARY RELIEF MAY ALSO BE SOUGHT
FROM THE SPECIAL INQUIRY OFFICER IN THE COURSE OF THE DEPORTATION
PROCEEDING; AN ALIEN MAY, FOR EXAMPLE, REQUEST THAT HIS DEPORTATION BE
TEMPORARILY WITHHELD, ON THE GROUND THAT HE MIGHT, IN THE COUNTRY TO
WHICH HE IS TO BE DEPORTED, "BE SUBJECT TO PERSECUTION . . . ."  SEE 8
U.S.C. 1253(H) (1964 ED., SUPP. II); 8 CFR 242.8(A). 

OTHER FORMS OF DISCRETIONARY RELIEF MAY BE REQUESTED AFTER
TERMINATION OF THE DEPORTATION PROCEEDING.  THE REGULATIONS THUS
PROVIDE THAT AN ALIEN "UNDER A FINAL ADMINISTRATIVE ORDER OF
DEPORTATION" MAY APPLY TO THE DISTRICT DIRECTOR "HAVING JURISDICTION
OVER THE PLACE WHERE THE ALIEN IS AT THE TIME OF FILING" FOR A STAY OF
DEPORTATION.  8 CFR 243.4.  THE STAY MAY BE GRANTED BY THE DISTRICT
DIRECTOR "IN HIS DISCRETION."  IBID.  IF THE STAY IS DENIED, THE DENIAL
"IS NOT APPEALABLE" TO THE BOARD OF IMMIGRATION APPEALS.  IBID. 

PRESCRIBED BY THE HOBBS ACT, 64 STAT. 1129, 68 STAT. 961, "SHALL APPLY
TO, AND SHALL BE THE SOLE AND EXCLUSIVE PROCEDURE FOR, THE JUDICIAL
REVIEW OF ALL FINAL ORDERS OF DEPORTATION HERETOFORE OR HEREAFTER MADE
AGAINST ALIENS . . . PURSUANT TO ADMINISTRATIVE PROCEEDINGS UNDER
COURTS OF APPEALS EXCLUSIVE JURISDICTION TO REVIEW FINAL ORDERS ISSUED
BY SPECIFIED FEDERAL AGENCIES.  IN SITUATIONS TO WHICH THE PROVISIONS
OF SEC. 106(A) ARE INAPPLICABLE, THE ALIEN'S REMEDIES WOULD, OF COURSE,
ORDINARILY LIE FIRST IN AN ACTION BROUGHT IN AN APPROPRIATE DISTRICT
COURT. 

THE POSITIONS OF THE VARIOUS PARTIES MAY BE SUMMARIZED AS FOLLOWS. 
WE ARE URGED BY BOTH PETITIONER AND THE IMMIGRATION SERVICE TO HOLD
THAT THE PROVISIONS OF SEC. 106(A) ARE APPLICABLE TO THE CIRCUMSTANCES
PRESENTED BY THIS CASE, AND THAT JUDICIAL REVIEW THUS IS AVAILABLE ONLY
IN THE COURTS OF APPEALS.  THE IMMIGRATION SERVICE CONTENDS THAT SEC.
106(A) SHOULD BE UNDERSTOOD TO EMBRACE ALL DETERMINATIONS "DIRECTLY
AFFECTING THE EXECUTION OF THE BASIC DEPORTATION ORDER,"  WHETHER THOSE
DETERMINATIONS HAVE BEEN REACHED PRIOR TO, DURING, OR SUBSEQUENT TO THE
DEPORTATION PROCEEDING.  /8/  IN CONTRAST, AMICUS /9/  URGES, AS THE
COURT OF APPEALS HELD, THAT SEC. 106(A) ENCOMPASSES ONLY THOSE ORDERS
MADE IN THE COURSE OF A PROCEEDING CONDUCTED UNDER SEC. 242(B) OR
ISSUED UPON MOTIONS TO REOPEN SUCH PROCEEDINGS. 

        II. 

THIS IS THE THIRD CASE IN WHICH WE HAVE HAD OCCASION TO EXAMINE THE
EFFECT OF SEC. 106(A).  IN THE FIRST, FOTI V. IMMIGRATION SERVICE, 375
U.S. 217, THE PETITIONER, IN THE COURSE OF A PROCEEDING CONDUCTED UNDER
SEC. 242(B), CONCEDED HIS DEPORTABILITY BUT REQUESTED A SUSPENSION OF
DEPORTATION UNDER SEC. 244(A)(5).  THE SPECIAL INQUIRY OFFICER DENIED
SUCH A SUSPENSION, AND PETITIONER'S APPEAL FROM THE DENIAL WAS
DISMISSED BY THE BOARD OF IMMIGRATION APPEALS.  PETITIONER COMMENCED AN
ACTION IN THE DISTRICT COURT, BUT THE ACTION WAS DISMISSED ON THE
GROUND THAT, UNDER SEC. 106(A), HIS EXCLUSIVE REMEDY LAY IN THE COURTS
OF APPEALS.  HE THEN PETITIONED FOR REVIEW TO THE COURT OF APPEALS FOR
THE SECOND CIRCUIT, BUT IT DISMISSED FOR WANT OF JURISDICTION.  A
DIVIDED COURT HELD EN BANC THAT THE PROCEDURES OF SEC. 106(A) WERE
INAPPLICABLE TO DENIALS OF DISCRETIONARY RELIEF UNDER SEC. 244(A)(5). 
308 F.2D 779.  ON CERTIORARI, WE REVERSED, HOLDING THAT "ALL
DETERMINATIONS MADE DURING AND INCIDENT TO THE ADMINISTRATIVE
PROCEEDING CONDUCTED BY A SPECIAL INQUIRY OFFICER, AND REVIEWABLE
TOGETHER BY THE BOARD OF IMMIGRATION APPEALS . . . ARE . . . INCLUDED
WITHIN THE AMBIT OF THE EXCLUSIVE JURISDICTION OF THE COURT OF APPEALS
UNDER SEC. 106(A)."  375 U.S.,AT 229. 

IN THE SECOND CASE, GIOVA V. ROSENBERG, 379 U.S. 18, PETITIONER
MOVED BEFORE THE BOARD OF IMMIGRATION APPEALS TO REOPEN PROCEEDINGS,
PREVIOUSLY CONDUCTED UNDER SEC. 242(B), THAT HAD TERMINATED IN AN ORDER
FOR HIS DEPORTATION.  THE BOARD DENIED RELIEF.  THE COURT OF APPEALS
FOR THE NINTH CIRCUIT CONCLUDED THAT THE BOARD'S DENIAL WAS NOT
EMBRACED BY SEC. 106(A), AND DISMISSED THE PETITION FOR WANT OF
JURISDICTION.  308 F.2D 347.  ON CERTIORARI, THIS COURT HELD, IN A
BRIEF PER CURIAM OPINION, THAT SUCH ORDERS WERE WITHIN THE EXCLUSIVE
JURISDICTION OF THE COURTS OF APPEALS. 

ALTHOUGH FOTI STRONGLY SUGGESTS THE RESULT THAT WE REACH TODAY,
NEITHER IT NOR GIOVA CAN PROPERLY BE REGARDED AS CONTROLLING IN THIS
SITUATION.  UNLIKE THE ORDER IN FOTI, THE ORDER IN THIS CASE WAS NOT
ENTERED IN THE COURSE OF A PROCEEDING CONDUCTED BY A SPECIAL INQUIRY
OFFICER UNDER SEC. 242(B); UNLIKE THE ORDER IN GIOVA, THE ORDER HERE
DID NOT DENY A MOTION TO REOPEN SUCH A PROCEEDING.  WE REGARD THE ISSUE
OF STATUTORY CONSTRUCTION INVOLVED HERE AS MARKEDLY CLOSER THAN THE
QUESTIONS PRESENTED IN THOSE CASES; AT THE LEAST, IT IS PLAINLY AN
ISSUE UPON WHICH DIFFERING VIEWS MAY READILY BE ENTERTAINED.  IN THESE
CIRCUMSTANCES, IT IS IMPERATIVE, IF WE ARE ACCURATELY TO IMPLEMENT
CONGRESS' PURPOSES, TO "SEIZE) EVERY THING FROM WHICH AID CAN BE
DERIVED."  FISHER V. BLIGHT, 2 CRANCH 358, 386. 

IT IS IMPORTANT, FIRST, TO EMPHASIZE THE CHARACTER OF THE STATUTE
WITH WHICH WE ARE CONCERNED.  SECTION 106(A) IS INTENDED EXCLUSIVELY TO
PRESCRIBE AND REGULATE A PORTION OF THE JURISDICTION OF THE FEDERAL
COURTS.  AS A JURISDICTIONAL STATUTE, IT MUST BE CONSTRUED BOTH WITH
PRECISION AND WITH FIDELITY TO THE TERMS BY WHICH CONGRESS HAS
EXPRESSED ITS WISHES.  UTAH JUNK CO. V. PORTER, 328 U.S. 39, 44. 
FURTHER, AS A STATUTE ADDRESSED ENTIRELY TO "SPECIALISTS," IT MUST, AS
MR. JUSTICE FRANKFURTER OBSERVED, "BE READ BY JUDGES WITH THE MINDS OF
. . . SPECIALISTS."  /10/ 

WE CANNOT, UPON CLOSE READING, EASILY RECONCILE THE POSITION URGED BY
THE IMMIGRATION SERVICE WITH THE TERMS OF SEC. 106(A).  A DENIAL BY A
DISTRICT DIRECTOR OF A STAY OF DEPORTATION IS NOT LITERALLY A "FINAL
ORDER OF DEPORTATION," NOR IS IT, AS WAS THE ORDER IN FOTI, ENTERED IN
THE COURSE OF ADMINISTRATIVE PROCEEDINGS CONDUCTED UNDER SEC. 242(B). 
/11/  THUS, THE ORDER IN THIS CASE WAS ISSUED MORE THAN THREE MONTHS
AFTER THE ENTRY OF THE FINAL ORDER OF DEPORATION, /12/  IN PROCEEDINGS
ENTIRELY DISTINCT FROM THOSE CONDUCTED UNDER SEC. 242(B), BY AN OFFICER
OTHER THAN THE SPECIAL INQUIRY OFFICER WHO, AS REQUIRED BY SEC. 242(B),
PRESIDED OVER THE DEPORTATION PROCEEDING.  THE ORDER HERE DID NOT
INVOLVE THE DENIAL OF A MOTION TO REOPEN PROCEEDINGS CONDUCTED UNDER
SEC. 242(B), OR TO RECONSIDER ANY FINAL ORDER OF DEPORTATION. 
CONCEDEDLY, THE APPLICATION FOR A STAY ASSUMED THE PRIOR EXISTENCE OF
AN ORDER OF DEPORTATION, BUT PETITIONER DID NOT "ATTACK THE DEPORTATION
ORDER ITSELF BUT INSTEAD (SOUGHT) RELIEF NOT INCONSISTENT WITH IT." 
MUI V. ESPERDY, 371 F.2D 772, 777.  IF, AS THE IMMIGRATION SERVICE
URGES, SEC. 106(A) EMBRACES ALL DETERMINATIONS "DIRECTLY AFFECTING THE
EXECUTION OF" A FINAL DEPORTATION ORDER, CONGRESS HAS SELECTED LANGUAGE
REMARKABLY INAPPOSITE FOR ITS PURPOSE.  AS JUDE FRIENDLY OBSERVED IN A
SIMILAR CASE, IF "CONGRESS HAD WANTED TO GO THAT FAR, PRESUMABLY IT
WOULD HAVE KNOWN HOW TO SAY SO."  IBID. 

THE LEGISLATIVE HISTORY OF SEC. 106(A) DOES NOT STRENGTHEN THE
POSITION OF THE IMMIGRATION SERVICE.  THE "BASIC PURPOSE" OF THE
PROCEDURAL PORTIONS OF THE 1961 LEGISLATION WAS, AS WE STATED IN FOTI,
EVIDENTLY "TO EXPEDITE THE DEPORTATION OF UNDESIRABLE ALIENS BY
PREVENTING SUCCESSIVE DILATORY APPEALS TO VARIOUS FEDERAL COURTS . . .
."  375 U.S.,AT 226.  CONGRESS PRESCRIBED FOR THIS PURPOSE SEVERAL
PROCEDURAL INNOVATIONS, AMONG THEM THE DEVICE OF DIRECT PETITIONS FOR
REVIEW TO THE COURTS OF APPEALS.  ALTHOUGH, AS THE IMMIGRATION SERVICE
HAS EMPHASIZED, THE BROAD PURPOSES OF THE LEGISLATION MIGHT HAVE BEEN
EXPECTED TO ENCOMPASS ORDERS DENYING DISCRETIONARY RELIEF ENTERED
OUTSIDE SEC. 242(B) PROCEEDINGS, THERE IS EVIDENCE THAT CONGRESS
DELIBERATELY RESTRICTED THE APPLICATION OF SEC. 106(A) TO ORDERS MADE
IN THE COURSE OF PROCEEDINGS CONDUCTED UNDER SEC. 242(B). 

THUS, DURING A COLLOQUY ON THE FLOOR OF THE HOUSE OF
REPRESENTATIVES, TO WHICH WE REFERRED IN FOTI, /13/  REPRESENTATIVE
MOORE, CO-SPONSOR OF THE BILL THEN UNDER DISCUSSION, SUGGESTED THAT ANY
DIFFICULTIES RESULTING FROM THE SEPARATE CONSIDERATION OF DEPORTABILITY
AND OF DISCRETIONARY RELIEF COULD BE OVERCOME BY "A CHANGE IN THE
PRESENT ADMINISTRATIVE PRACTICE OF CONSIDERING THE ISSUES . . .
PIECEMEAL.  THERE IS NO REASON WHY THE IMMIGRATION SERVICE COULD NOT
CHANGE ITS REGULATIONS TO PERMIT CONTEMPORANEOUS COURT CONSIDERATION OF
DEPORTABILITY AND ADMINISTRATIVE APPLICATION FOR RELIEF."  105
CONG.REC.  12728.  IN THE SAME COLLOQUY, REPRESENTATIVE WALTER, THE
CHAIRMAN OF THE SUBCOMMITTEE THAT CONDUCTED THE PERTINENT HEARINGS,
RECOGNIZED THAT CERTAIN FORMS OF DISCRETIONARY RELIEF MAY BE REQUESTED
IN THE COURSE OF A DEPORTATION PROCEEDING, AND STATED THAT SEC. 106(A)
WOULD APPLY TO THE DISPOSITION OF SUCH REQUESTS, "JUST AS IT WOULD
APPLY TO ANY OTHER ISSUE BROUGHT UP IN DEPORTATION PROCEEDINGS."  105
CONG.REC.  12728.  SIMILARLY, REPRESENTATIVE WALTER, IN A SUBSEQUENT
DEBATE, RESPONDED TO A CHARGE THAT JUDICIAL REVIEW UNDER SEC. 106(A)
WOULD PROVE INADEQUATE BECAUSE OF THE ABSENCE OF A SUITABLE RECORD, BY
INVITING "THE GENTLEMAN'S ATTENTION TO THE LAW IN SECTION 242, IN WHICH
THE PROCEDURE FOR THE EXAMINER IS SET FORTH IN DETAIL."  107 CONG.REC. 
12179. 

WE BELIEVE THAT, IN COMBINATION WITH THE TERMS OF SEC. 106(A)
ITSELF, THESE STATEMENTS LEAD TO THE INFERENCE THAT CONGRESS QUITE
DELIBERATELY RESTRICTED THE APPLICATION OF SEC. 106(A) TO ORDERS
ENTERED DURING PROCEEDINGS CONDUCTED UNDER SEC. 242(B), OR DIRECTLY
CHALLENGING DEPORTATION ORDERS THEMSELVES.  /14/  THIS IS CONCEDEDLY "A
CHOICE BETWEEN UNCERTAINTIES," BUT WE ARE "CONTENT TO CHOOSE THE
LESSER."  BURNET V. GUGGENHEIM, 288 U.S. 280, 288. 

WE NEED NOT SPECULATE AS TO CONGRESS' PURPOSES.  QUITE POSSIBLY, AS
JUDGE BROWNING HAS PERSUASIVELY SUGGESTED, "CONGRESS VISUALIZED A
SINGLE ADMINISTRATIVE PROCEEDING IN WHICH ALL QUESTIONS RELATING TO AN
ALIEN'S DEPORTATION WOULD BE RAISED AND RESOLVED, FOLLOWED BY A SINGLE
PETITION IN A COURT OF APPEALS FOR JUDICIAL REVIEW . . . ."  YAMADA V.
IMMIGRATION & NATURALIZATION SERVICE, 384 F.2D 214, 218.  IT MAY
THEREFORE BE THAT CONGRESS EXPECTED THE IMMIGRATION SERVICE TO INCLUDE
WITHIN THE SEC. 242(B) PROCEEDING "ALL ISSUES WHICH MIGHT AFFECT
DEPORTATION."  IBID.  POSSIBLY, AS AMICUS COGENTLY URGES, CONGRESS
WISHED TO LIMIT PETITIONS TO THE COURTS OF APPEALS TO SITUATIONS IN
WHICH QUASI-JUDICIAL HEARINGS HAD BEEN CONDUCTED.  /15/  IT IS ENOUGH
TO EMPHASIZE THAT NEITHER OF THESE PURPOSES WOULD BE IN ANY FASHION
IMPEDED BY THE RESULT WE REACH TODAY.  WE HOLD THAT THE JUDICIAL REVIEW
PROVISIONS OF SEC. 106(A) EMBRACE ONLY THOSE DETERMINATIONS MADE DURING
A PROCEEDING CONDUCTED UNDER SEC. 242(B), INCLUDING THOSE
DETERMINATIONS MADE INCIDENT TO A MOTION TO REOPEN SUCH PROCEEDINGS. 
/16/ 

THIS RESULT IS ENTIRELY CONSISTENT WITH OUR OPINION IN FOTI.  THERE,
IT WAS REPEATEDLY STATED IN THE OPINION OF THE CHIEF JUSTICE THAT THE
ORDER HELD REVIEWABLE UNDER SEC. 106(A) HAD, AS THE REGULATIONS
REQUIRED, BEEN ENTERED IN THE COURSE OF A PROCEEDING CONDUCTED UNDER
SEC. 242(B).  375 U.S.,AT 218, 222-223, 224, 226, 228, 229, 232.  IT
WAS EMPHASIZED THAT "THE ADMINISTRATIVE DISCRETION TO GRANT A
SUSPENSION OF DEPORTATION," THE DETERMINATION INVOLVED IN FOTI, "HAS
HISTORICALLY BEEN CONSISTENTLY EXERCISED AS AN INTEGRAL PART OF THE
PROCEEDINGS WHICH HAVE LED TO THE ISSUANCE OF A FINAL DEPORTATION
ORDER."  ID., AT 223.  A SUSPENSION OF DEPORTATION "MUST BE REQUESTED
PRIOR TO OR DURING THE DEPORTATION HEARING."  IBID.  MOREOVER, IT WAS
EXPLICITLY RECOGNIZED THAT, ALTHOUGH MODIFICATION OF THE PERTINENT
REGULATIONS MIGHT "EFFECTIVELY BROADEN OR NARROW THE SCOPE OF REVIEW
AVAILABLE IN THE COURTS OF APPEALS," THIS WAS "NOTHING ANOMALOUS." 
/17/  ID., AT 229-230.  AN ESSENTIAL PREMISE OF FOTI WAS THUS THAT THE
APPLICATION OF SEC. 106(A) HAD BEEN LIMITED TO ORDERS "MADE DURING THE
SAME PROCEEDINGS IN WHICH DEPORTABILITY IS DETERMINED . . . ."  ID., AT
224. 

THE PER CURIAM OPINION OF GIOVA DID NOT TAKE A WIDER VIEW OF SEC.
106(A).  THE DENIAL OF AN APPLICATION TO REOPEN A DEPORTATION
PROCEEDING IS READILY DISTINGUISHABLE FROM A DENIAL OF A STAY OF
DEPORTATION, IN WHICH THERE IS NO ATTACK UPON THE DEPORTATION ORDER OR
UPON THE PROCEEDING IN WHICH IT WAS ENTERED.  PETITIONS TO REOPEN, LIKE
MOTIONS FOR REHEARING OR RECONSIDERATION, ARE, AS THE IMMIGRATION
SERVICE URGED IN FOTI, "INTIMATELY AND IMMEDIATELY ASSOCIATED" WITH THE
FINAL ORDERS THEY SEEK TO CHALLENGE.  /18/  THUS, PETITIONS TO REOPEN
DEPORTATION PROCEEDINGS ARE GOVERNED BY THE REGULATIONS APPLICABLE TO
THE DEPORTATION PROCEEDING ITSELF, AND, INDEED, ARE ORDINARILY
PRESENTED FOR DISPOSITION TO THE SPECIAL INQUIRY OFFICER WHO ENTERED
THE DEPORTATION ORDER.  /19/  THE RESULT IN GIOVA WAS THUS A LOGICAL
CONCOMITANT OF THE CONSTRUCTION OF SEC. 106(A) REACHED IN FOTI; IT DID
NOT, EXPLICITLY OR BY IMPLICATION, BROADEN THAT CONSTRUCTION IN ANY
FASHION THAT ENCOMPASSES THIS SITUATION. 

THE RESULT WE REACH TODAY WILL DOUBTLESS MEAN THAT, ON OCCASION, THE
REVIEW OF DENIALS OF DISCRETIONARY RELIEF WILL BE CONDUCTED SEPARATELY
FROM THE REVIEW OF AN ORDER OF DEPORTATION INVOLVING THE SAME ALIEN. 
NONETHELESS, THIS DOES NOT SEEM AN ONEROUS BURDEN, NOR IS IT ONE THAT
CANNOT BE AVOIDED, AT LEAST IN LARGE PART, BY APPROPRIATE ACTION OF THE
IMMIGRATION SERVICE ITSELF.  MORE IMPORTANT, ALTHOUGH "THERE IS NO
TABLE OF LOGARITHMS FOR STATUTORY CONSTRUCTION,"  /20/  IT IS THE
RESULT THAT WE BELIEVE MOST CONSISTENT BOTH WITH CONGRESS' INTENTIONS
AND WITH THE TERMS BY WHICH IT HAS CHOSEN TO EXPRESS THOSE INTENTIONS. 

              AFFIRMED. 

/1/  WE EMPHASIZE THAT NO QUESTIONS ARE PRESENTED AS TO PETITIONER'S
DEPORTABILITY OR AS TO THE PROPRIETY IN HIS SITUATION OF ANY
DISCRETIONARY RELIEF.  WE INTIMATE NO VIEWS ON ANY SUCH QUESTIONS. 

/2/  THE FACTS CONCERNING PETITIONER'S ENTRY INTO, AND SUBSEQUENT
STAY IN, THE UNITED STATES APPEAR TO HAVE BEEN CONCEDED IN THE
PROCEEDING BEFORE THE SPECIAL INQUIRY OFFICER. 

/3/  SECTION 1282(A) PROVIDES IN RELEVANT PART THAT "(A) NO ALIEN
CREWMAN SHALL BE PERMITTED TO LAND TEMPORARILY IN THE UNITED STATES
EXCEPT . . . FOR A PERIOD OF TIME, IN ANY EVENT, NOT TO EXCEED-- (1)
THE PERIOD OF TIME (NOT EXCEEDING TWENTY-NINE DAYS) DURING WHICH THE
VESSEL . . . REMAINS IN PORT . . . ." 

/4/  WE NOTE, AS WE DID IN FOTI V. IMMIGRATION SERVICE, 375 U.S.
217, THAT THE "GRANTING OF VOLUNTARY DEPARTURE RELIEF DOES NOT RESULT
IN THE ALIEN'S NOT BEING SUBJECT TO AN OUTSTANDING FINAL ORDER OF
DEPORTATION."  ID., AT 219, N. 1. 

/5/  SECTION 1153(A)(7) (1964 ED., SUPP. II) PROVIDES IN PART THAT
"(CONDITIONAL ENTRIES SHALL NEXT BE MADE AVAILABLE . . . TO ALIENS WHO
SATISFY AN IMMIGRATION AND NATURALIZATION SERVICE OFFICER . . . THAT
(I) BECAUSE OF PERSECUTION OR FEAR OF PERSECUTION . . . THEY HAVE FLED
. . . FROM ANY COMMUNIST OR COMMUNIST-DOMINATED COUNTRY . . . ." 
CONDITIONAL ENTRIES ARE AVAILABLE ONLY TO REFUGEES, AND, LIKE THE
PAROLE SYSTEM, GRANT "TEMPORARY HARBORAGE IN THIS COUNTRY FOR HUMANE
CONSIDERATIONS OR FOR REASONS ROOTED IN PUBLIC INTEREST."  C. GORDON &
H. ROSENFIELD, IMMIGRATION LAW AND PROCEDURE SEC. 2.54 (1967).  SEE
ALSO ID., AT SEC. 2.27H. 

/6/  COMPARE THE FOLLOWING:  SKIFTOS V. IMMIGRATION & NATURALIZATION
SERVICE, 332 F.2D 203 (C.A. 7TH CIR.); TALAVERA V. PEDERSON, 334 F.2D
52 (C.A. 6TH CIR.); SAMALA V. IMMIGRATION & NATURALIZATION SERVICE, 336
F.2D 7 (C.A. 5TH CIR.); MENDEZ V. MAJOR, 340 F.2D 128 (C.A. 8TH CIR.);
MELONE V. IMMIGRATION & NATURALIZATION SERVICE, 355 F.2D 533 (C.A. 7TH
CIR.); MUI V. ESPERDY, 371 F.2D 772 (C.A.2D CIR.); YAMADA V.
IMMIGRATION & NATURALIZATION SERVICE, 384 F.2D 214 (C.A. 9TH CIR.); DE
LUCIA V. ATTORNEY GENERAL, -- U.S.APP.D.C. -- , -- F.2D -- . 

/7/  SECTION 106(A), 8 U.S.C. 1105AA), WAS ADDED TO THE IMMIGRATION
AND NATIONALITY ACT BY SEC. 5(A) OF PUBLIC LAW 87-301, APPROVED
SEPTEMBER 26, 1961, 75 STAT. 651. 

/8/  BRIEF FOR RESPONDENT 28. 

/9/  SINCE THE IMMIGRATION SERVICE HAD ALIGNED ITSELF WITH
PETITIONER ON THIS QUESTION, THE COURT INVITED WILLIAM H. DEMPSEY, JR.,
ESQUIRE, A MEMBER OF THE BAR OF THIS COURT, TO APPEAR AND PRESENT ORAL
ARGUMENT AS AMICUS CURIAE IN SUPPORT OF THE JUDGMENT BELOW.  390 U.S.
918. 

/10/  FRANKFURTER, SOME REFLECTIONS ON THE READING OF STATUTES, 2
RECORD OF N.Y.C.B.A. 213, 225. 

/11/  WE FIND THE EMPHASIS PLACED IN DISSENT UPON THE WORD
"PURSUANT" IN SEC. 106(A) UNPERSUASIVE.  FIRST, SEC. 106(A) WAS
EVIDENTLY LIMITED TO THOSE FINAL ORDERS OF DEPORTATION MADE "PURSUANT
TO ADMINISTRATIVE PROCEEDINGS UNDER SECTION 242(B)" SIMPLY BECAUSE
CONGRESS PREFERRED TO EXCLUDE FROM IT THOSE DEPORTATION ORDERS ENTERED
WITHOUT A SEC. 242(B) PROCEEDING.  THIS WOULD, FOR EXAMPLE, PLACE
ORDERS ISSUED UNDER 8 U.S.C. 1282(B), BY WHICH THE IMMIGRATION SERVICE
MAY REVOKE A SEAMAN'S CONDITIONAL PERMIT TO LAND AND DEPORT HIM,
OUTSIDE THE JUDICIAL REVIEW PROCEDURES OF SEC. 106(A).  SEE GENERALLY
C. GORDON & H. ROSENFIELD, IMMIGRATION LAW AND PROCEDURE SEC. 5.11
(1967).  PERHAPS THIS SUGGESTS, AS AMICUS URGES, THAT SEC. 106(A) WAS
INTENDED TO BE LIMITED TO SITUATIONS IN WHICH QUASI-JUDICIAL
PROCEEDINGS, SUCH AS THOSE UNDER SEC. 242(B), HAVE BEEN CONDUCTED.  IT
CERTAINLY INDICATES THAT THE REFERENCE IN SEC. 106(A) TO SEC. 242(B)
PROCEEDINGS WAS INTENDED TO LIMIT, AND NOT TO BROADEN, THE CLASSES OF
ORDERS TO WHICH SEC. 106(A) MAY BE APPLIED.  SECOND, IT MUST BE
REITERATED THAT SEC. 106(A) DOES NOT, AS THE DISSENTING OPINION
SUGGESTS, ENCOMPASS "ALL ORDERS" ENTERED PURSUANT TO SEC. 242(B)
PROCEEDINGS; IT IS LIMITED TO "FINAL ORDERS OF DEPORTATION."  THE
TEXTUAL DIFFICULTY, WITH WHICH THE DISSENTING OPINION DOES NOT DEAL, IS
THAT THE ORDER IN QUESTION HERE NEITHER IS A FINAL ORDER OF
DEPORTATION, NOR IS IT, AS WAS THE ORDER IN FOTI, "MADE DURING THE SAME
PROCEEDINGS" IN WHICH A FINAL ORDER OF DEPORTATION HAS BEEN ISSUED. 
375 U.S.,AT 224.  THIS CANNOT BE OVERCOME MERELY BY EXAMINATION OF THE
MEANING OF THE WORD "PURSUANT." 

/12/  THE SPECIAL INQUIRY OFFICER'S DECISION, WHICH ESTABLISHED
DEPORTABILITY AND GRANTED VOLUNTARY DEPARTURE, WAS ISSUED ON MARCH 3,
1966.  PETITIONER FILED HIS APPLICATION FOR A STAY ON JUNE 20, 1966. 
THE APPLICATION WAS EVIDENTLY DENIED ON THE SAME DAY. 

/13/  SEE 375 U.S.,AT 223-224. 

/14/  THE IMMIGRATION SERVICE HAS ARGUED THAT THE LIMITING LANGUAGE
IN SEC. 106(A) MAY BE EXPLAINED BY CONGRESS' WISH TO RESTRICT ITS
APPLICATION TO DEPORTATION CASES, PREVENTING ITS APPLICATION TO
QUESTIONS ARISING FROM EXCLUSION PROCEEDINGS.  WE HAVE FOUND NOTHING IN
THE PERTINENT LEGISLATIVE HISTORY THAT OFFERS MEANINGFUL SUPPORT TO
THIS VIEW. 

/15/  NOTE, E.G., THE APPARENT EXCLUSION FROM SEC. 106(A) OF ORDERS
ENTERED UNDER 8 U.S.C. 1282(B).  SEE GENERALLY SUPRA, N. 11. 

/16/  WE INTIMATE NO VIEWS ON THE POSSIBILITY THAT A COURT OF
APPEALS MIGHT HAVE "PENDENT JURISDICTION" OVER DENIALS OF DISCRETIONARY
RELIEF, WHERE IT ALREADY HAS BEFORE IT A PETITION FOR REVIEW FROM A
PROCEEDING CONDUCTED UNDER SEC. 242(B).  SEE FOTI V. IMMIGRATION
SERVICE, SUPRA, AT 227, N. 14. 

/17/  THE OPINION OF THE COURT EMPHASIZED, IN ADDITION, THAT
"(CLEARLY, CHANGES IN ADMINISTRATIVE PROCEDURES MAY AFFECT THE SCOPE
AND CONTENT OF VARIOUS TYPES OF AGENCY ORDERS AND THUS THE SUBJECT
MATTER EMBRACED IN A JUDICIAL PROCEEDING TO REVIEW SUCH ORDERS."  ID.,
AT 230, N. 16. 

/18/  BRIEF FOR RESPONDENT, NO. 28, OCTOBER TERM 1963, AT 53. 

/19/  SEE 8 CFR 242.22.  IF, HOWEVER, THE ORDER OF THE SPECIAL
INQUIRY OFFICER IS APPEALED TO THE BOARD OF IMMIGRATION APPEALS, A
SUBSEQUENT MOTION TO REOPEN OR RECONSIDER IS PRESENTED TO THE BOARD FOR
DISPOSITION.  IBID.  THE MOTION IN GIOVA WAS PRESENTED TO THE BOARD AND
DECIDED BY IT. 

/20/  FRANKFURTER, SOME REFLECTIONS ON THE READING OF STATUTES,
SUPRA, AT 234. 

MR. JUSTICE WHITE, DISSENTING. 

IF THE SPECIAL INQUIRY OFFICER HAD POSSESSED JURISDICTION TO ISSUE A
STAY ORDER PENDING PETITIONER'S EFFORTS TO OBTAIN DISCRETIONARY RELIEF
FROM THE DISTRICT DIRECTOR, I TAKE IT THAT HIS DENIAL OF THE STAY, LIKE
A REFUSAL TO RE-OPEN, WOULD HAVE BEEN APPEALABLE TO THE COURT OF
APPEALS.  BUT, AS I UNDERSTAND IT, NO STAY COULD HAVE BEEN GRANTED BY
THE HEARING OFFICER AND IT WAS SOUGHT FROM THE DISTRICT DIRECTOR AS AN
IMMEDIATE CONSEQUENCE OF THERE BEING OUTSTANDING A FINAL ORDER OF
DEPORTATION, WHICH, IF EXECUTED, MIGHT MOOT THE UNDERLYING REQUEST FOR
RELIEF FROM THE DISTRICT DIRECTOR.  SECTION 106 DOES NOT LIMIT JUDICIAL
REVIEW IN THE COURT OF APPEALS TO ORDERS ENTERED "IN THE COURSE OF"
SEC. 242(B) PROCEEDINGS, BUT EXTENDS IT TO ALL ORDERS AGAINST ALIENS
ENTERED "PURSUANT" TO SUCH PROCEEDINGS, THAT IS, AT LEAST AS WEBSTER
WOULD HAVE IT, /1/  "ACTING OR DONE IN CONSEQUENCE" OF THE SEC. 242(B)
PROCEEDINGS.  EXCEPT FOR THE ORDER OF DEPORTATION, THERE WOULD HAVE
BEEN NO OCCASION OR NEED TO SEEK A STAY.  IT HARDLY STRAINS
CONGRESSIONAL INTENTION TO GIVE THE WORD "PURSUANT" ITS ORDINARY
MEANING IN THE ENGLISH LANGUAGE.  IF THERE ARE REASONS BASED ON POLICY
FOR THE COURT'S CONTRARY CONCLUSION, THEY ARE NOT STATED.  I WOULD
REVERSE THE JUDGMENT. 

/1/  MERRIAM-WEBSTER, WEBSTER'S NEW INTERNATIONAL DICTIONARY, SECOND
EDITION, UNABRIDGED (1957), DEFINES "PURSUANT" AS: 

"1.  ACTING OR DONE IN CONSEQUENCE OR IN PROSECUTION (OF ANYTHING);
HENCE, AGREEABLE; CONFORMABLE; FOLLOWING; ACCORDING . . . . 

"2.  THAT IS IN PURSUIT OR PURSUING . . . ." 

JULES E. COVEN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS ABRAHAM LEBENKOFF. 

CHARLES GORDON ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
VINSON, AND FRANCIS X. BEYTAGH, JR. 

WILLIAM H. DEMPSEY, JR., BY INVITATION OF THE COURT, 390 U.S. 918,
ARGUED THE CAUSE AND FILED A BRIEF, AS AMICUS CURIAE, URGING
AFFIRMANCE. 
..END :










HARRISON V. UNITED STATES, 392 U.S. 219 


       HARRISON V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT. 

        NO. 876.  ARGUED APRIL 4, 1968.-- DECIDED JUNE 10, 1968. 


AT PETITIONER'S TRIAL FOR MURDER, THE PROSECUTION INTRODUCED THREE IN
CUSTODY CONFESSIONS IN WHICH PETITIONER ALLEGEDLY ADMITTED THE SHOTGUN
SLAYING OF A MAN WHOM PETITIONER AND TWO OTHERS HAD INTENDED TO ROB. 
FOLLOWING THE ADMISSION OF THOSE CONFESSIONS INTO EVIDENCE, PETITIONER
(WHOSE COUNSEL'S OPENING STATEMENT TO THE JURY HAD ANNOUNCED THAT
PETITIONER WOULD NOT TESTIFY) TOOK THE STAND.  HE TESTIFIED THAT HE AND
TWO COMPANIONS HAD GONE TO THE VICTIM'S HOUSE HOPING TO PAWN A SHOTGUN
WHICH ACCIDENTALLY KILLED THE VICTIM WHILE PETITIONER WAS PRESENTING IT
TO HIM FOR INSPECTION.  PETITIONER WAS FOUND GUILTY BUT THE COURT OF
APPEALS REVERSED ON THE GROUND THAT HIS CONFESSIONS HAD BEEN ILLEGALLY
OBTAINED AND WERE HENCE INADMISSIBLE.  ON RETRIAL, THE PROSECUTOR READ
TO THE JURY PETITIONER'S PREVIOUS TRIAL TESTIMONY (PLACING PETITIONER,
SHOTGUN IN HAND, AT THE SCENE OF THE KILLING), WHICH WAS ADMITTED INTO
EVIDENCE OVER PETITIONER'S OBJECTION THAT HE HAD BEEN INDUCED TO
TESTIFY AT THE PRIOR TRIAL ONLY BECAUSE OF THE INTRODUCTION AGAINST HIM
OF THE INADMISSIBLE CONFESSIONS.  PETITIONER WAS AGAINS CONVICTED, AND
THE COURT OF APPEALS AFFIRMED, RELYING ON THE FACT THAT PETITIONER
"MADE A CONSCIOUS TACTICAL DECISION TO SEEK ACQUITTAL BY TAKING THE
STAND AFTER (HIS) IN-CUSTODY STATEMENTS HAD BEEN LET IN . . . ."  HELD:
PETITIONER'S TESTIMONY AT THE FORMER TRIAL WAS INADMISSIBLE IN THE
LATER PROCEEDING BECAUSE IT WAS THE FRUIT OF THE ILLEGALLY PROCURED
CONFESSIONS.  PP. 222-226. 

(A) THE SAME PRINCIPLE THAT PROHIBITS THE USE OF ILLEGALLY OBTAINED
CONFESSIONS LIKEWISE PROHIBITS THE USE OF ANY TESTIMONY IMPELLED
THEREBY, AND IF PETITIONER DECIDED TO TESTIFY IN ORDER TO OVERCOME THE
IMPACT OF THOSE CONFESSIONS, THE TESTIMONY HE GAVE WAS TAINTED BY THE
SAME ILLEGALITY THAT RENDERED THE CONFESSIONS THEMSELVES INADMISSIBLE. 
PP. 222-224. 

(B) HAVING ILLEGALLY PLACED PETITIONER'S CONFESSIONS BEFORE THE JURY
IN THE FIRST PLACE, THE GOVERNMENT CANNOT DEMAND THAT PETITIONER
DEMONSTRATE THAT HE WOULD NOT HAVE TESTIFIED AS HE DID IF HIS
INADMISSIBLE CONFESSIONS HAD NOT BEEN USED; INSTEAD THE GOVERNMENT MUST
SHOW THAT ITS ILLEGAL ACTION DID NOT INDUCE PETITIONER'S TESTIMONY, AND
NO SUCH SHOWING WAS MADE HERE.  PP. 224-225. 

(C) EVEN IF PETITIONER WOULD HAVE DECIDED TO TESTIFY IN ANY EVENT,
THE NATURAL INFERENCE, WHICH THE GOVERNMENT HAS NOT DISPELLED, IS THAT
HE WOULD NOT HAVE MADE THE DAMAGING ADMISSION HE DID MAKE ON THE
WITNESS STAND HAD HIS CONFESSIONS NOT ALREADY BEEN SPREAD BEFORE THE
JURY.  PP. 225-226. 

128 U.S.APP.D.C. 245, 387 F.2D 203, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS BROUGHT TO TRIAL BEFORE A JURY IN THE DISTRICT OF
COLUMBIA UPON A CHARGE OF FELONY MURDER.  /1/  AT THAT TRIAL THE
PROSECUTION INTRODUCED THREE CONFESSIONS ALLEGEDLY MADE BY THE
PETITIONER WHILE HE WAS IN THE CUSTODY OF THE POLICE.  AFTER THESE
CONFESSIONS HAD BEEN ADMITTED IN EVIDENCE, THE PETITIONER TOOK THE
WITNESS STAND AND TESTIFIED TO HIS OWN VERSION OF THE EVENTS LEADING TO
THE VICTIM'S DEATH.  THE JURY FOUND THE PETITIONER GUILTY, BUT THE
COURT OF APPEALS REVERSED HIS CONVICTION, HOLDING THAT THE PETITIONER'S
CONFESSIONS HAD BEEN ILLEGALLY OBTAINED AND WERE THEREFORE INADMISSIBLE
IN EVIDENCE AGAINST HIM.  HARRISON V. UNITED STATES, 123 U.S.APP.D.C.
230, 238, 359 F.2D 214, 222; ON REHEARING EN BANC, 123 U.S.APP.D.C.
239, 359 F.2D 223.  /2/ 

THE SUBSTANCE OF THE CONFESSIONS WAS THAT THE PETITIONER AND TWO
OTHERS, ARMED WITH A SHOTGUN, HAD GONE TO THE VICTIM'S HOUSE INTENDING
TO ROB HIM, AND THAT THE VICTIM HAD BEEN KILLED WHILE RESISTING THEIR
ENTRY INTO HIS HOME.  IN HIS TESTIMONY AT TRIAL THE PETITIONER SAID
THAT HE AND HIS COMPANIONS HAD GONE TO THE VICTIM'S HOME HOPING TO PAWN
THE SHOTGUN, AND THAT THE VICTIM WAS ACCIDENTALLY KILLED WHILE THE
PETITIONER WAS PRESENTING THE GUN TO HIM FOR INSPECTION. 

UPON REMAND, THE CASE AGAIN CAME TO TRIAL BEFORE A JURY.  THIS TIME
THE PROSECUTOR DID NOT, OF COURSE, OFFER THE ALLEGED CONFESSIONS IN
EVIDENCE.  BUT HE DID READ TO THE JURY THE PETITIONER'S TESTIMONY AT
THE PRIOR TRIAL-- TESTIMONY WHICH PLACED THE PETITIONER, SHOTGUN IN
HAND, AT THE SCENE OF THE KILLING.  THE TESTIMONY WAS READ OVER THE
OBJECTION OF DEFENSE COUNSEL, WHO ARGUED THAT THE PETITIONER HAD BEEN
INDUCED TO TESTIFY AT THE FORMER TRIAL ONLY BECAUSE OF THE INTRODUCTION
AGAINST HIM OF THE INADMISSIBLE CONFESSIONS.  THE PETITIONER WAS AGAIN
CONVICTED, AND THE COURT OF APPEALS AFFIRMED.  /3/  WE GRANTED
CERTIORARI TO DECIDE WHETHER THE PETITIONER'S TRIAL TESTIMONY WAS THE
INADMISSIBLE FRUIT OF THE ILLEGALLY PROCURED CONFESSIONS.  /4/ 

IN THIS CASE WE NEED NOT AND DO NOT QUESTION THE GENERAL EVIDENTIARY
RULE THAT A DEFENDANT'S TESTIMONY AT A FORMER TRIAL IS ADMISSIBLE IN
EVIDENCE AGAINST HIM IN LATER PROCEEDINGS.  /5/  A DEFENDANT WHO
CHOOSES TO TESTIFY WAIVES HIS PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION WITH RESPECT TO THE TESTIMONY HE GIVES, AND THAT WAIVER
IS NO LESS EFFECTIVE OR COMPLETE BECAUSE THE DEFENDANT MAY HAVE BEEN
MOTIVATED TO TAKE THE WITNESS STAND IN THE FIRST PLACE ONLY BY REASON
OF THE STRENGTH OF THE LAWFUL EVIDENCE ADDUCED AGAINST HIM. 

HERE, HOWEVER, THE PETITIONER TESTIFIED ONLY AFTER THE GOVERNMENT
HAD ILLEGALLY INTRODUCED INTO EVIDENCE THREE CONFESSIONS, ALL
WRONGFULLY OBTAINED, /6/  AND THE SAME PRINCIPLE THAT PROHIBITS THE USE
OF CONFESSIONS SO PROCURED ALSO PROHIBITS THE USE OF ANY TESTIMONY
IMPELLED THEREBY-- THE FRUIT OF THE POISONOUS TREE, TO INVOKE A TIME
WORN METAPHOR.  FOR THE "ESSENCE OF A PROVISON FORBIDDING THE
ACQUISITION OF EVIDENCE IN A CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO
ACQUIRED SHALL NOT BE USED BEFORE THE COURT BUT THAT IT SHALL NOT BE
USED AT ALL."  SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385,
392.  /7/ 

IN CONCLUDING THAT THE PETITIONER'S PRIOR TESTIMONY COULD BE USED
AGAINST HIM WITHOUT REGARD TO THE CONFESSIONS THAT HAD BEEN INTRODUCED
IN EVIDENCE BEFORE HE TESTIFIED, THE COURT OF APPEALS RELIED ON THE
FACT THAT THE PETITIONER HAD "MADE A CONSCIOUS TACTICAL DECISION TO
SEEK ACQUITTAL BY TAKING THE STAND AFTER (HIS) IN-CUSTODY STATEMENTS
HAD BEEN LET IN . . . ."  /8/  BUT THAT OBSERVATION IS BESIDE THE
POINT.  THE QUESTION IS NOT WHETHER THE PETITIONER MADE A KNOWING
DECISION TO TESTIFY, BUT WHY.  IF HE DID SO IN ORDER TO OVERCOME THE
IMPACT OF CONFESSIONS ILLEGALLY OBTAINED AND HENCE IMPROPERLY
INTRODUCED, THEN HIS TESTIMONY WAS TAINTED BY THE SAME ILLEGALITY THAT
RENDERED THE CONFESSIONS THEMSELVES INADMISSIBLE.  /9/  AS JUSTICE
TOBRINER WROTE FOR THE SUPREME COURT OF CALIFORNIA, 

"IF THE IMPROPER USE OF (A) DEFENDANT'S EXTRAJUDICIAL CONFESSION
IMPELLED HIS TESTIMONIAL ADMISSION OF GUILT, . . . WE COULD NOT, IN
ORDER TO SHIELD THE RESULTING CONVICTION FROM REVERSAL, SEPARATE WHAT
HE TOLD THE JURY ON THE WITNESS STAND FROM WHAT HE CONFESSED TO THE
POLICE DURING INTERROGATION."  /10/ 

THE REMAINING QUESTION IS WHETHER THE PETITIONER'S TRIAL TESTIMONY
WAS IN FACT IMPELLED BY THE PROSECUTION'S WRONGFUL USE OF HIS ILLEGALLY
OBTAINED CONFESSIONS.  IT IS, OF COURSE, DIFFICULT TO UNRAVEL THE MANY
CONSIDERATIONS THAT MIGHT HAVE LED THE PETITIONER TO TAKE THE WITNESS
STAND AT HIS FORMER TRIAL.  BUT, HAVING ILLEGALLY PLACED HIS
CONFESSIONS BEFORE THE JURY, THE GOVERNMENT CAN HARDLY DEMAND A
DEMONSTRATION BY THE PETITIONER THAT HE WOULD NOT HAVE TESTIFIED AS HE
DID IF HIS INADMISSIBLE CONFESSIONS HAD NOT BEEN USED.  "THE SPRINGS OF
CONDUCT ARE SUBTLE AND VARIED," MR. JUSTICE CARDOZO ONCE OBSERVED. 
"ONE WHO MEDDLES WITH THEM MUST NOT INSIST UPON TOO NICE A MEASURE OF
PROOF THAT THE SPRING WHICH HE RELEASED WAS EFFECTIVE TO THE EXCLUSION
OF ALL OTHERS."  /11/  HAVING "RELEASED THE SPRING" BY USING THE
PETITIONER'S UNLAWFULLY OBTAINED CONFESSIONS AGAINST HIM, THE
GOVERNMENT MUST SHOW THAT ITS ILLEGAL ACTION DID NOT INDUCE HIS
TESTIMONY.  /12/ 

NO SUCH SHOWING HAS BEEN MADE HERE.  IN HIS OPENING STATEMENT TO THE
JURY, DEFENSE COUNSEL ANNOUNCED THAT THE PETITIONER WOULD NOT TESTIFY
IN HIS OWN BEHALF.  ONLY AFTER HIS CONFESSIONS HAD BEEN ADMITTED IN
EVIDENCE DID HE TAKE THE STAND.  IT THUS APPEARS THAT, BUT FOR THE USE
OF HIS CONFESSIONS, THE PETITIONER MIGHT NOT HAVE TESTIFIED AT ALL. 
/13/  BUT EVEN IF THE PETITIONER WOULD HAVE DECIDED TO TESTIFY WHETHER
OR NOT HIS CONFESSIONS HAD BEEN USED, IT DOES NOT FOLLOW THAT HE WOULD
HAVE ADMITTED BEING AT THE SCENE OF THE CRIME AND HOLDING THE GUN WHEN
THE FATAL SHOT WAS FIRED.  ON THE CONTRARY, THE MORE NATURAL INFERENCE
IS THAT NO TESTIMONIAL ADMISSION SO DAMAGING WOULD HAVE BEEN MADE IF
THE PROSECUTOR HAD NOT ALREADY SPREAD THE PETITIONER'S CONFESSIONS
BEFORE THE JURY.  /14/  THAT IS AN INFERENCE THE GOVERNMENT HAS NOT
DISPELLED. 

IT HAS NOT BEEN DEMONSTRATED, THEREFORE, THAT THE PETITIONER'S
TESTIMONY WAS OBTAINED "BY MEANS SUFFICIENTLY DISTINGUISHABLE" FROM THE
UNDERLYING ILLEGALITY "TO BE PURGED OF THE PRIMARY TAINT."  WONG SUN V.
UNITED STATES 371 U.S. 471, 488.  ACCORDINGLY, THE JUDGMENT MUST BE

              REVERSED. 

/1/  AN EARLIER CONVICTION HAD BEEN VACATED ON APPEAL.  SEE N. 4,
INFRA. 

/2/  TWO OF THE CONFESSIONS WERE FOUND TO HAVE BEEN OBTAINED IN
VIOLATION OF MALLORY V. UNITED STATES, 354 U.S. 449.  THE THIRD WAS
FOUND TO HAVE BEEN OBTAINED IN VIOLATION OF A PRIOR EN BANC DECISION OF
THE COURT OF APPEALS, HARLING V. UNITED STATES, 111 U.S.APP.D.C. 174,
295 F.2D 161.  SEE N. 6, INFRA. 

/3/  128 U.S.APP.D.C. 245, 387 F.2D 203. 

/4/  389 U.S. 969.  THE PETITIONER'S FURTHER CONTENTION THAT HE WAS
DENIED THE RIGHT TO A SPEEDY TRIAL IS WHOLLY WITHOUT MERIT AND WAS
PROPERLY REJECTED BY THE COURT OF APPEALS.  SEE 128 U.S.APP.D.C.,AT 248
250, 387 F.2D, AT 206-208.  THE PETITIONER WAS INDICTED MORE THAN EIGHT
YEARS AGO AND HAS BEEN TRIED AND CONVICTED THREE TIMES FOR THE OFFENSE
HERE INVOLVED.  HIS FIRST CONVICTION WAS VACATED ON APPEAL WHEN IT
BECAME CLEAR THAT THE MAN WHO HAD REPRESENTED HIM IN CERTAIN POST
VERDICT PROCEEDINGS WAS AN EX-CONVICT POSING AS AN ATTORNEY, SEE 123
U.S.APP.D.C. 230, 232-233, 359 F.2D 214, 216-217; HIS SECOND CONVICTION
WAS REVERSED BECAUSE THE GOVERNMENT EMPLOYED INADMISSIBLE CONFESSIONS
AGAINST HIM ON RETRIAL, SEE 123 U.S.APP.D.C. 230, 238, 239, 359 F.2D
214, 222, 223; AND HIS THIRD CONVICTION IS PRESENTLY BEFORE US.
VIRTUALLY ALL OF THE DELAYS OF WHICH THE PETITIONER COMPLAINS OCCURRED
IN THE COURSE OF APPELLATE PROCEEDINGS AND RESULTED EITHER FROM THE
ACTIONS OF THE PETITIONER OR FROM THE NEED TO ASSURE CAREFUL REVIEW OF
AN UNUSUALLY COMPLEX CASE. 

/5/  SEE, E.G., EDMONDS V. UNITED STATES, 106 U.S.APP.D.C. 373, 377
378, 273 F.2D 108, 112-113; AYRES V. UNITED STATES, 193 F.2D 739, 740
741.  AND SEE GENERALLY C. MCCORMICK, EVIDENCE SEC. 131, 230-235, 239
(1954). 

/6/  IN THE PRESENT POSTURE OF THIS CASE, THE EARLIER HOLDING OF THE
COURT OF APPEALS THAT THE PETITIONER'S CONFESSIONS WERE ILLEGALLY
OBTAINED, SEE 123 U.S.APP.D.C. 230, 238, 239, 359 F.2D 214, 222, 223,
IS NOT IN DISPUTE.  WE THEREFORE PROCEED UPON THE ASSUMPTION THAT THE
COURT OF APPEALS WAS CORRECT IN RULING THE CONFESSIONS INADMISSIBLE,
BUT WE INTIMATE NO VIEW UPON HOW WE WOULD EVALUATE THAT RULING IF IT
WERE PROPERLY BEFORE US. 

/7/  SEE ALSO NARDONE V. UNITED STATES, 308 U.S. 338, 341; WONG SUN
V. UNITED STATES, 371 U.S. 471, 484-488.  CF. FAHY V. CONNECTICUT, 375
U.S. 85, 91.  SEE ALSO THE OPINIONS OF CHIEF JUSTICE TRAYNOR IN PEOPLE
V. JACKSON, 67 CAL.2D 96, 97, 429 P.2D 600, 603, AND PEOPLE V. POLK, 63
CAL.2D 443, 449, 406 P.2D 641, 644, AND THE OPINIONS OF JUSTICE
TOBRINER IN PEOPLE V. SPENCER, 66 CAL.2D 158, 164-169, 424 P.2D 715,
719-724, AND PEOPLE V. BILDERBACH, 62 CAL.2D 757, 763-768, 401 P.2D
921, 924-927. 

/8/  128 U.S.APP.D.C. 245, 252, 387 F.2D 203, 210. 

/9/  WE HAVE NO OCCASION IN THIS CASE TO CANVASS THE COMPLEX AND
VARIED PROBLEMS THAT ARISE WHEN THE TRIAL TESTIMONY OF A WITNESS OTHER
THAN THE ACCUSED IS CHALLENGED AS "THE EVIDENTIARY PRODUCT OF THE
POISONED TREE."  R. RUFFIN, OUT ON A LIMB OF THE POISONOUS TREE:  THE
TAINTED WITNESS, 15 U.C.L.A.LAW REV. 32, 44 (1967).  SEE ALSO COMMENT,
FRUIT OF THE POISONOUS TREE-- A PLEA FOR RELEVANT CRITERIA, 115
U.PA.L.REV.  1136, 1143-1153 (1967).  COMPARE UNITED STATES V. WADE,
388 U.S. 218, 241; GILBERT V. CALIFORNIA, 388 U.S. 263, 272-273.  AND,
CONTRARY TO THE SUGGESTION MADE IN A DISSENTING OPINION TODAY, POST, AT
234, WE DECIDE HERE ONLY A CASE IN WHICH THE PROSECUTION ILLEGALLY
INTRODUCED THE DEFENDANT'S CONFESSION IN EVIDENCE AGAINST HIM AT TRIAL
IN ITS CASE-IN-CHIEF. 

/10/  PEOPLE V. SPENCER, SUPRA, 66 CAL.2D, AT 164, 424 P.2D, AT 719
720. 

IT IS ARGUED IN DISSENT THAT THE PETITIONER'S TRIAL TESTIMONY SHOULD
NOT BE SUPPRESSED "EVEN IF IT WAS IN FACT INDUCED BY THE WRONGFUL
ADMISSION INTO EVIDENCE OF AN ILLEGAL CONFESSION," POST, AT 232, SINCE
ANY DETERRENCE SUCH SUPPRESSION MIGHT ACHIEVE IS INSUFFICIENT TO
WARRANT PLACING NEW "OBSTACLES . . . IN THE PATH OF POLICEMAN,
PROSECUTOR, AND TRIAL JUDGE ALIKE."  POST, AT 235.  OF COURSE, NO
EMPIRICAL EVIDENCE ON THE DETERRENCE ISSUE IS AVAILABLE.  AND "(SINCE
AS A PRACTICAL MATTER IT IS NEVER EASY TO PROVE A NEGATIVE, IT IS
HARDLY LIKELY THAT CONCLUSIVE FACTUAL DATA COULD EVER BE ASSEMBLED." 
ELKINS V. UNITED STATES, 364 U.S. 206, 218.  BUT IT IS NOT DETERRENCE
ALONE THAT WARRANTS THE EXCLUSION OF EVIDENCE ILLEGALLY OBTAINED-- IT
IS "THE IMPERATIVE OF JUDICIAL INTEGRITY."  ID., AT 222.  THE EXCLUSION
OF AN ILLEGALLY PROCURED CONFESSION AND OF ANY TESTIMONY OBTAINED IN
ITS WAKE DEPRIVES THE GOVERNMENT OF NOTHING TO WHICH IT HAS ANY LAWFUL
CLAIM AND CREATES NO IMPEDIMENT TO LEGITIMATE METHODS OF INVESTIGATING
AND PROSECUTING CRIME.  ON THE CONTRARY, THE EXCLUSION OF EVIDENCE
CAUSALLY LINKED TO THE GOVERNMENT'S ILLEGAL ACTIVITY NO MORE THAN
RESTORES THE SITUATION THAT WOULD HAVE PREVAILED IF THE GOVERNMENT HAD
ITSELF OBEYED THE LAW. 

/11/  DE CICCO V. SCHWEIZER, 221 N.Y. 431, 438, 117 N.E. 807, 810. 

/12/  SEE PEOPLE V. SPENCER, SUPRA, 66 CAL.2D, AT 168, 424 P.2D, AT
722.  AS MR. JUSTICE HARLAN RECENTLY OBSERVED, "WHEN THE PROSECUTION
SEEKS TO USE A CONFESSION UTTERED AFTER AN EARLIER ONE NOT FOUND TO BE
VOLUNTARY, IT HAS . . . THE BURDEN OF PROVING . . . THAT THE LATER
CONFESSION . . .WAS NOT DIRECTLY PRODUCED BY THE EXISTENCE OF THE
EARLIER CONFESSION."  DARWIN V. CONNECTICUT, 391 U.S. 346, 351
(CONCURRING IN PART AND DISSENTING IN PART).  THE SAME PRINCIPLE
COMPELS THE CONCLUSION THAT, WHEN THE PROSECUTION SEEKS TO USE
TESTIMONY GIVEN AFTER THE INTRODUCTION IN EVIDENCE OF A CONFESSION
UNLAWFULLY OBTAINED, IT HAS THE BURDEN OF PROVING THAT THE DEFENDANT'S
TESTIMONY WAS NOT PRODUCED BY THE ILLEGAL USE OF HIS CONFESSION AT
TRIAL.  COMPARE CHAPMAN V. CALIFORNIA, 386 U.S. 18, 24:  "CERTAINLY
ERROR . . . IN ILLEGALLY ADMITTING HIGHLY PREJUDICIAL EVIDENCE . . .
CASTS ON SOMEONE OTHER THAN THE PERSON PREJUDICED BY IT A BURDEN TO
SHOW THAT IT WAS HARMLESS." 

/13/  "IN EVALUATING THE POSSIBILITY THAT THE ERRONEOUS INTRODUCTION
OF (A) DEFENDANT'S EXTRAJUDICIAL CONFESSION MIGHT HAVE INDUCED HIS
SUBSEQUENT TESTIMONIAL CONFESSION, WE MUST ASSESS (THE) DEFENDANT'S
REACTION TO THE USE OF HIS CONFESSION AT TRIAL ON THE BASIS OF THE
INFORMATION THEN AVAILABLE TO HIM . . . ."  PEOPLE V. SPENCER, SUPRA,
66 CAL.2D, AT 165, 424 P.2D, AT 720. 

/14/  COMPARE UNITED STATES V. BAYER, 331 U.S. 532:  "OF COURSE,
AFTER AN ACCUSED HAS ONCE LET THE CAT OUT OF THE BAG BY CONFESSING, NO
MATTER WHAT THE INDUCEMENT, HE IS NEVER THEREAFTER FREE OF THE
PSYCHOLOGICAL AND PRACTICAL DISADVANTAGES OF HAVING CONFESSED.  HE CAN
NEVER GET THE CAT BACK IN THE BAG.  THE SECRET IS OUT FOR GOOD.  IN
SUCH A SENSE, A LATER CONFESSION ALWAYS MAY BE LOOKED UPON AS FRUIT OF
THE FIRST."  ID., AT 540 (DICTUM).  COMPARE ALSO DARWIN V. CONNECTICUT,
SUPRA, 391 U.S. 346, 349; ID., AT 350-351 (SEPARATE OPINION OF MR.
JUSTICE HARLAN); BEECHER V. ALABAMA, 389 U.S. 35, 36, N. 2; CLEWIS V.
TEXAS, 386 U.S. 707, 710.     MR. JUSTICE BLACK, DISSENTING. 

IT SEEMS TO ME THAT THE COURT IN THIS CASE CARRIES THE COURT-MADE
DOCTRINE OF EXCLUDING EVIDENCE THAT IS "FRUIT OF THE POISONOUS TREE" TO
A WHOLLY ILLOGICAL AND COMPLETELY UNREASONABLE EXTENT.  FOR THIS AND
MANY OF THE REASONS SUGGESTED BY MY BROTHER WHITE'S DISSENT, I AGREE
THAT HOLDINGS LIKE THIS MAKE IT FAR MORE DIFFICULT TO PROTECT SOCIETY
"AGAINST THOSE WHO HAVE MADE IT IMPOSSIBLE TO LIVE TODAY IN SAFETY."  I
WOULD AFFIRM THIS CONVICTION. 

MR. JUSTICE HARLAN, DISSENTING. 

LIKE MY BROTHER BLACK AND MY BROTHER WHITE, I AM UNABLE TO
UNDERSTAND WHY THE COURT REVERSES THIS PETITIONER'S CONVICTION.  THERE
IS NO SUGGESTION THAT THE TESTIMONY IN QUESTION, GIVEN ON THE STAND
WITH THE ADVICE OF COUNSEL, WAS SOMEHOW UNRELIABLE.  NOR, AS THE
OPINION OF MR. JUSTICE WHITE AMPLY DEMONSTRATES, IS THERE ANY PLAUSIBLE
ARGUMENT THAT A RULE EXCLUDING SUCH EVIDENCE FROM USE AT A LATER TRIAL
ADDS AN OUNCE OF DETERRENCE AGAINST POLICE VIOLATION OF THE MALLORY
RULE. 

I DO NOT DOUBT THAT "VOLUNTARINESS" IS NOT ALWAYS A PURELY
SUBJECTIVE QUESTION AS TO THE DEFENDANT'S STATE OF MIND; IT MAY INVOLVE
AN OBJECTIVE ANALYSIS OF THE FAIRNESS OF THE SITUATION IN WHICH
GOVERNMENT AGENTS PLACED HIM.  NOR WOULD I RULE OUT THE POSSIBILITY
THAT A DIRECT PRODUCT OF UNLAWFUL OFFICIAL ACTIVITY MIGHT PROPERLY BE
EXCLUDABLE AS A FRUIT OF THAT ACTIVITY-- EVEN WHERE THE PRODUCT IS SO
UNFORESEEABLE THAT A DETERRENT RATIONALE FOR EXCLUSION WILL NOT SUFFICE
- ON THE GROUND THAT THE GOVERNMENT SHOULD NOT PLAY AN IGNOBLE PART. 

BUT THESE CONCEPTS DO NOT REACH THIS CASE.  HERE, APPARENTLY IN ALL
GOOD FAITH, THE GOVERNMENT OFFERED AT ONE TRIAL AN OUT-OF-COURT
CONFESSION BY PETITIONER.  IT WAS OBJECTED TO ON THE GROUND THAT IT HAD
BEEN OBTAINED IN VIOLATION OF THE MALLORY RULE.  THAT OBJECTION WAS
OVERRULED, AND THE DEFENSE HAD TO DECIDE HOW TO PROCEED.  WHILE DEFENSE
COUNSEL MAY HAVE BELIEVED HE HAD GOOD GROUNDS FOR REVERSAL ON APPEAL
(AS THE COURT OF APPEALS LATER HELD HE DID) HE ALSO HAD TO PRESENT A
DEFENSE IN AN EFFORT TO PERSUADE THE JURY TO ACQUIT.  THAT DEFENSE HAD
OF COURSE TO BE STRUCTURED TO MEET THE GOVERNMENT'S CASE AS IT STOOD--
INCLUDING BUT NOT LIMITED TO THE ADMITTED CONFESSION-- AND COUNSEL
DECIDED TO PUT HIS CLIENT ON THE STAND.  /1/ 

THE SITUATION WAS ONE THAT CRIMINAL AND CIVIL DEFENDANTS FACE ALL
THE TIME:  BELIEVING THAT ERROR HAS BEEN COMMITTED THAT WILL RESULT IN
REVERSAL ON APPEAL, THEY MUST NEVERTHELESS PRESENT A DEFENSE, AND IN
DOING SO MAY HELP THE OTHER SIDE ON RETRIAL.  THE SITUATION HERE IS NO
DIFFERENT IN PRINCIPLE FROM THE SACRIFICE OF SURPRISE OR THE CONVEYANCE
OF IMPORTANT LEADS TO THE OTHER SIDE, THAT MAY OCCUR BECAUSE A TRIAL
CONTINUES EVEN AFTER ERROR HAS BEEN COMMITTED.  IT IS A PRICE THAT IS
PAID FOR HAVING A SYSTEM OF JUSTICE THAT INSISTS, GENERALLY, UPON FULL
TRIALS BEFORE APPELLATE REVIEW OF POINTS OF LAW.  IT IS A PROBLEM THAT
CAN BE AVOIDED, WITHIN OUR SYSTEM, ONLY BY DOING WHAT IS DONE HERE,
NAMELY, REACHING THE WRONG RESULT AS BETWEEN THE LITIGANTS.  FOR ME
THIS IS NOT ACCEPTABLE DOCTRINE. 

/1/  THIS CASE IS ALTOGETHER DIFFERENT FROM DARWIN V. CONNECTICUT,
391 U.S. 346, 350, IN WHICH I TOOK THE POSITION THAT WHEN A FIRST
CONFESSION IS INVOLUNTARY A LATER CONFESSION PRODUCED BY THE ERRONEOUS
IMPRESSION THAT THE CAT WAS ALREADY OUT OF THE BAG SHOULD ALSO BE
CONSIDERED INVOLUNTARY.  HERE (1) PETITIONER'S OUT-OF-COURT CONFESSION
WAS NOT INVOLUNTARY; (2) PETITIONER'S IN-COURT STATEMENTS WERE GIVEN
UPON THE ADVICE OF COUNSEL, AND THERE IS NO INDICATION WHATEVER THAT
PETITIONER MISUNDERSTOOD THE POSITION HE WAS IN; (3) THE IN-COURT
TESTIMONY COULD NOT POSSIBLY HAVE BEEN THOUGHT MERELY CUMULATIVE OF THE
CONFESSION, FOR IT (A) WAS GIVEN IN ORDER TO REBUT THE CONFESSION AND
(B) DAMAGED PETITIONER'S POSITION IN A MANNER QUITE INDEPENDENT OF THE
USE OF THE CONFESSION. 

MR.JUSTICE WHITE, DISSENTING. 

THIS CASE AND OTHERS LIKE IT WOULD BE MORE COMPREHENSIBLE IF THEY
PURPORTED TO MAKE PROCEDURES FOR TRYING CRIMINALS MORE RELIABLE FOR
FINDING FACTS AND MINIMIZING MISTAKES.  CASES LIKE UNITED STATES V.
WADE, 388 U.S. 218 (1967) GILBERT V. CALIFORNIA, 388 U.S. 263 (1967);
AND BRUTON V. UNITED STATES, 391 U.S. 123 (1968), FOR EXAMPLE, AT LEAST
COULD CLAIM THIS REDEEMING VIRTUE.  BUT HERE, AS IN MIRANDA V. ARIZONA,
384 U.S. 436 (1966), DECISION HAS EMANATED FROM THE COURT'S FUZZY
IDEOLOGY ABOUT CONFESSIONS, AN IDEOLOGY WHICH IS DIFFICULT TO RELATE TO
ANY PROVISION OF THE CONSTITUTION AND WHICH EXCLUDES FROM THE TRIAL
EVIDENCE OF THE HIGHEST RELEVANCE AND PROBITY. 

THREE TIMES PETITIONER HAS BEEN CONVICTED OF MURDERING HIS ROBBERY
VICTIM WITH A SHOTGUN.  THE FIRST TRIAL WAS IN 1960.  AT THE SECOND
TRIAL, IN 1963, WRITTEN AND ORAL STATEMENTS BY PETITIONER AND HIS
CODEFENDANTS WERE INTRODUCED.  PETITIONER THEN TOOK THE STAND AND GAVE
HIS VERSION OF THE EVENTS LEADING TO THE KILLING.  HE ADMITTED BEING AT
THE SCENE OF THE CRIME.  CONVICTION FOLLOWED.  THE COURT OF APPEALS
AGAIN REVERSED, THIS TIME ON THE GROUND THAT PETITIONER'S STATEMENTS
WERE WRONGFULLY ADMITTED, NOT BECAUSE THEY WERE INVOLUNTARY OR IN ANY
WAY COERCED, BUT BECAUSE THEY VIOLATED MALLORY V. UNITED STATES, 354
U.S. 449 (1957), AND RECENT DECISIONS OF THE COURT OF APPEALS IN
KILLOUGH V. UNITED STATES, 119 U.S.APP.D.C. 10, 336 F.2D 929 (1964),
AND HARLING V. UNITED STATES, 111 U.S.APP.D.C. 174, 295 F.2D 161
(1961).  BY THE TIME OF THE THIRD TRIAL, IN 1966, PROSECUTION WITNESSES
WERE DEAD OR UNAVAILABLE.  CONSIDERABLE RELIANCE WAS PLACED ON THE
TESTIMONY WHICH HAD BEEN GIVEN AT THE SECOND TRIAL, INCLUDING
PETITIONER'S ADMISSIONS WHEN HE TOOK THE STAND IN HIS OWN DEFENSE. 
HARRISON WAS CONVICTED FOR A THIRD TIME.  IT IS THIS CONVICTION WHICH
THE COURT NOW REVERSES, CONTRARY TO THE JUDGMENT OF THE COURT OF
APPEALS.  THAT COURT FOUND NO REASON TO EXCLUDE PETITIONER'S VOLUNTARY
STATEMENTS, MADE UNDER OATH IN OPEN COURT AND WITH THE ADVICE OF
COUNSEL. 

THERE IS NO SUGGESTION THAT PETITIONER'S TESTIMONY AT HIS SECOND
TRIAL WAS UNTRUTHFUL OR UNRELIABLE.  NOR DOES THE COURT HOLD THAT
HARRISON WAS COMPELLED TO TAKE THE STAND AND INCRIMINATE HIMSELF
CONTRARY TO HIS PRIVILEGE UNDER THE FIFTH AMENDMENT.  THE REASON IS
OBVIOUS.  IF A DEFENDANT WERE HELD TO BE ILLEGALLY "COMPELLED" WHEN HE
TAKES THE STAND TO COUNTER STRONG EVIDENCE OFFERED BY THE PROSECUTION
AND ADMITTED INTO EVIDENCE, HE WOULD BE AS MUCH "COMPELLED" WHETHER IT
WAS ERROR TO ADMIT THE EVIDENCE OR NOT.  TO AVOID THIS ABSURD
CONSTRUCTION OF THE SELF-INCRIMINATION CLAUSE, THE COURT CASTS ABOUT
FOR A DIFFERENT LABEL.  HARRISON'S TESTIMONY AT THE SECOND TRIAL, THE
COURT NOW SAYS, WAS NOT "COMPELLED" BUT ONLY "IMPELLED" BY THE
CONFESSIONS.  ALTERNATIVELY IT SUGGESTS THAT EXCEPT FOR THE CONFESSIONS
HARRISON WOULD NOT HAVE TAKEN THE STAND AND ADMITTED BEING AT THE SCENE
OF THE CRIME.  ON EITHER BASIS, HIS TESTIMONY AT THE SECOND TRIAL IS
DEEMED A FRUIT OF ILLEGALLY OBTAINED CONFESSIONS FROM WHICH THE
GOVERNMENT SHOULD BE PERMITTED NO BENEFIT WHATEVER.  I DISAGREE. 

THE DOCTRINE THAT THE "FRUITS" OF ILLEGALLY OBTAINED EVIDENCE CANNOT
BE USED TO CONVICT THE DEFENDANT IS COMPLEX AND ELUSIVE.  THERE ARE
MANY UNSETTLED QUESTIONS UNDER IT.  THE COURT, HOWEVER, SEEMS TO
OVERLOOK ALL OF THESE PROBLEMS IN ADOPTING AN OVERLY SIMPLE AND
MECHANICAL NOTION OF "FRUITS" TO WHICH I CANNOT SUBSCRIBE.  IN THE VIEW
OF THE COURT, OF SOME EVIDENTIARY MATTER IS CAUSALLY LINKED TO SOME
ILLEGAL ACTIVITY OF THE GOVERNMENT-- LINKED IN THAT BROAD "BUT FOR"
SENSE OF CAUSALITY WHICH RARELY EXCLUDES RELEVANT MATTERS WHICH COME
LATER IN TIME-- IT IS A "FRUIT" AND EXCLUDABLE AS SUCH.  THIS STRICTLY
CAUSAL NOTION OF FRUITS IS, OF COURSE, CONSISTENT WITH THE DICTUM IN
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385, 392 (1920),
THAT "(IF KNOWLEDGE OF (THE FACTS) IS GAINED FROM AN INDEPENDENT SOURCE
THEY MAY BE PROVED LIKE ANY OTHERS, BUT THE KNOWLEDGE GAINED BY THE
GOVERNMENT'S OWN WRONG CANNOT BE USED BY IT . . . ."  IN SILVERTHORNE,
HOWEVER, THE "FRUITS" WERE COPIES AND PHOTOGRAPHS OF ORIGINAL DOCUMENTS
ILLEGALLY SEIZED; IT WOULD BE DIFFICULT TO IMAGINE A CASE WHERE THE
FRUITS HUNG CLOSER TO THE TRUNK OF THE POISON TREE.  THE COURT SEEMS TO
OVERLOOK THE CRITICAL LIMITATION PLACED UPON THE FRUITS DOCTRINE IN
NARDONE V. UNITED STATES, 308 U.S. 338, 341 (1939), WHERE MR. JUSTICE
FRANKFURTER STATED THAT: 

"SOPHISTICATED ARGUMENT MAY PROVE A CAUSAL CONNECTION BETWEEN
INFORMATION OBTAINED THROUGH ILLICIT WIRE-TAPPING AND THE GOVERNMENT'S
PROOF.  AS A MATTER OF GOOD SENSE, HOWEVER, SUCH CONNECTION MAY HAVE
BECOME SO ATTENUATED AS TO DISSIPATE THE TAINT."  CF. WONG SUN V.
UNITED STATES, 371 U.S. 471, 487-488 (1963); UNITED STATES V. WADE, 388
U.S. 218, 239-242 (1967).  THE CONCEPT IMPLICIT IN THE QUOTED
STATEMENT, AS I UNDERSTAND IT, IS THAT MERE CAUSAL CONNECTION IS
INSUFFICIENT TO MAKE SOMETHING AN INADMISSIBLE FRUIT.  RATHER IT MUST
BE SHOWN THAT SUPPRESSION OF THE FRUIT WOULD SERVE THE SAME PURPOSE AS
SUPPRESSION OF THE ILLEGAL EVIDENCE ITSELF.  WHEN ONE DEALS WITH THE
FRUITS OF AN ILLEGAL SEARCH OR SEIZURE, AS IN SILVERTHORNE, OR WITH THE
FRUITS OF AN ILLEGAL CONFESSION, AS THE COURT DECIDES THAT WE DO IN
THIS CASE, /1/  THE REASON FOR SUPPRESSION OF THE ORIGINAL ILLEGAL
EVIDENCE ITSELF IS PROPHYLACTIC-- TO DETER THE POLICE FROM ENGAGING IN
SUCH CONDUCT IN THE FUTURE BY DENYING THEM ITS PAST BENEFITS.  SEE
LINKLETTER V. WALKER, 381 U.S. 618, 634-639 (1965).  SINCE DETERENCE IS
THE ONLY JUSTIFICATION FOR EXCLUDING THE ORIGINAL EVIDENCE, THERE IS NO
JUSTIFICATION FOR EXCLUDING THE FRUITS OF SUCH EVIDENCE UNLESS
SUPPRESSION OF THEM WILL ALSO SERVE THE PROPHYLACTIC END.  I DEEM THIS
THE CRUCIAL ISSUE, AND PROPER RESOLUTION OF IT REQUIRES A DIFFERENT
RESULT FROM THAT TO WHICH THE COURT HAS BULLED ITS WAY. 

AS THE COURT MAKES PLAIN, IT IS "DIFFICULT TO UNRAVEL THE MANY
CONSIDERATIONS THAT MIGHT HAVE LED THE PETITIONER TO TAKE THE WITNESS
STAND . . . ."  ANTE, AT 224.  GIVEN THE DIFFICULTY OF DETERMINING
AFTER THE FACT WHY THE PETITIONER TOOK THE STAND, IT WOULD SEEM PATENT
THAT AT THE CONFESSION STAGE THE POLICE WOULD BE WHOLLY WITHOUT A BASIS
FOR PREDICTING WHETHER THE DEFENDANT WOULD BE MORE LIKELY TO WAIVE HIS
PRIVILEGE AGAINST SELF-INCRIMINATION AND TAKE THE STAND IF THEY WERE TO
OBTAIN A CONFESSION THAN IF THEY WERE NOT.  ACCORDINGLY, IT CANNOT
REALISTICALLY BE SUPPOSED THAT THE POLICE ARE SPURRED ON TO GREATER
ILLEGALITY BY ANY RATIONAL SUPPOSITION THAT SUCCESS IN THAT ILLICIT
ENDEAVOR WILL MAKE IT MORE LIKELY THAT THE DEFENDANT WILL MAKE
INCRIMINATORY ADMISSIONS ON THE WITNESS STAND.  IF THIS IS THE CASE,
AND I SEE NO GROUNDS FOR DOUBTING THAT IT IS, THE SUPPRESSION OF THE
PETITIONER'S TESTIMONY, EVEN IF IT WAS IN FACT INDUCED BY THE WRONGFUL
ADMISSION INTO EVIDENCE OF AN ILLEGAL CONFESSION, DOES NOT REMOVE A
SOURCE OF FURTHER TEMPTATION TO THE POLICE TO VIOLATE THE
CONSTITUTION. 

EVEN IF IT WERE TRUE THAT THE RULE ADOPTED BY THE COURT SERVED SOME
MINIMAL DETERRENT FUNCTION, I WOULD NOT BE ABLE TO JOIN THE COURT. 
MARGINAL CONSIDERATIONS SUCH AS THESE, ESPECIALLY WHEN ONE IS DEALING
WITH CONFESSIONS EXCLUDABLE BECAUSE OF VIOLATION OF THE TECHNICAL
REQUIREMENTS OF CASES LIKE MALLORY V. UNITED STATES, 354 U.S. 449
(1957); MASSIAH V. UNITED STATES, 377 U.S. 201 (1964); ESCOBEDO V.
ILLINOIS, 378 U.S. 478 (1964); AND MIRANDA V. ARIZONA, 384 U.S. 436
(1966), ARE INSUFFICIENT TO OVERRIDE THE INTEREST IN PRESENTING ALL
EVIDENCE WHICH IS RELEVANT AND PROBATIVE.  WHEN ONE ADDS THE FACT THAT
IN THIS CASE, AS IN MOST OTHERS WHERE THE ISSUE WILL NOW ARISE, THE
DEFENDANT TOOK THE STAND ONLY UPON ADVICE OF COUNSEL, THE ARGUMENT FOR
DETERRENCE SEEMS VIRTUALLY TO VANISH ALTOGETHER.  POLICE NOW KNOW THAT
INTERROGATION WITHOUT WARNINGS WILL VOID A CONFESSION, AND THE FEDERAL
GOVERNMENT AT LEAST IS APPRISED THAT UNDULY LONG DETENTION PRIOR TO
ARRAIGNMENT WILL INVALIDATE A CONFESSION OBTAINED DURING THE DETENTION
PERIOD.  WHEN THIS KNOWLEDGE IS COUPLED WITH THEIR REALIZATION THAT A
DEFENDANT'S SUBSEQUENT ACT OF TAKING THE STAND TO DIMINISH THE IMPACT
OF AN IMPROPERLY ADMITTED CONFESSION IS GUIDED BY THE ADVICE OF
COUNSEL, WE HAVE A SITUATION IN WHICH THE INDUCEMENTS TO THE POLICE TO
REFRAIN FROM ILLEGALITY ARE ALREADY SO CLEAR AND SO STRONG THAT
EXCLUDING TESTIMONY AS THE COURT DOES IN THIS CASE CANNOT CONCEIVABLY
BE THOUGHT TO DECREASE ILLEGAL CONDUCT BY THE POLICE.  THE POLICE WILL
KNOW THAT IF THEY FAIL TO GIVE WARNING OR IF THEY DETAIN THE PRISONER
TOO LONG, ANY CONFESSION THUS OBTAINED WILL BE UNUSABLE AND THAT TIMELY
AND EFFECTIVE OBJECTION TO IT WILL BE TAKEN AS SOON AS THE DEFENDANT
ACQUIRES A LAWYER.  IN SUCH CIRCUMSTANCES THEY COULD NOT REASONABLY
BELIEVE THAT THE CONFESSION WILL EVER ACTUALLY INDUCE THE DEFENDANT TO
TAKE THE WITNESS STAND.  IN SHORT, THE FACT THAT THE DEFENDANT HAS
COUNSEL WHO GIVES HIM SPECIFIC ADVICE DEPRIVES THE COURT'S "FRUITS"
ARGUMENT OF THE LAST VESTIGE OF DETERRENCE.  OF COURSE, IN A SITUATION
WHERE THE ILLEGALITY OF THE METHODS USED TO OBTAIN THE INITIAL EVIDENCE
IS OPEN TO DOUBT, AS WAS TRUE IN THIS CASE, THE FACT THAT THE DEFENDANT
HAS COUNSEL HAS LITTLE IF ANY EFFECT ON THE DETERRENCE VALUE OF
EXCLUDING THE FRUITS.  EVEN IN SUCH A CASE, HOWEVER, I FIND THE
DETERRENCE VALUE OF SUCH EXCLUSION TOO MINIMAL.  IN ANY EVENT IT IS
CLEAR THAT THE DETERRENCE VALUE IN SUCH CASES PROVIDES INSUFFICIENT
JUSTIFICATION FOR THE GENERAL RULE WHICH THE COURT ADOPTS TODAY. 

I AM DEEPLY CONCERNED ABOUT THE IMPLICATIONS OF THE COURT'S
UNEXPLAINED AND UNFOUNDED DECISION.  IF HARRISON'S TRIAL TESTIMONY WAS
TAINTED EVIDENCE BECAUSE INDUCED BY AN ILLEGAL CONFESSION, THEN IT
FOLLOWS, AS THE COURT INDICATES BY QUOTING FROM PEOPLE V. SPENCER, 66
CAL.2D 158, 164, 424 P.2D 715, 719 (1967), THAT HARRISON'S TESTIMONY
WOULD BE AUTOMATICALLY EXCLUDED EVEN IF THE CONFESSIONS HAD NOT BEEN
ADMITTED.  SIMILARLY, AN INADMISSIBLE CONFESSION PRECEDING A PLEA OF
GUILTY WOULD TAINT THE PLEA.  AND, AS A FINAL CONSEQUENCE, TODAY'S
DECISION WOULD SEEM TO BAR THE USE OF CONFESSIONS DEFECTIVE UNDER
MIRANDA OR MALLORY FROM BEING USED FOR IMPEACHMENT WHEN A DEFENDANT
TAKES THE STAND AND DELIBERATELY LIES.  ALL THESE RESULTS WOULD SEEM TO
FLOW NECESSARILY FROM THE COURT'S ADOPTION OF A TEST FOR INADMISSIBLE
FRUITS WHICH RELIES ONLY UPON THE EXISTENCE OF A CAUSAL LINK BETWEEN
THE ORIGINAL EVIDENCE SEIZED ILLEGALLY AND ANY SUBSEQUENT PRODUCT OF
IT.  SINCE PRECLUDING THE PROSECUTION FROM ANY OF THESE USES WILL NOT
SERVE THE PROPHYLACTIC END WHICH ALONE JUSTIFIES THE EXCLUSION OF THE
ORIGINAL ILLEGAL EVIDENCE, AND BECAUSE ALL OF THESE USES OF EVIDENCE
ADMITTEDLY OF RELEVANCE AND HIGH PROBATIVE VALUE ARE IMPORTANT TO THE
OVERRIDING GOAL OF CRIMINAL LAW-- THE JUST CONVICTION OF THE GUILTY-- I
MUST DISSENT. 

THE COURT COMPOUNDS ITS SUBSTANTIVE ERROR TODAY BY THE PROCEDURAL
PLOY OF SWITCHING THE BURDEN OF PROOF TO THE PROSECUTION.  IT RULES
THAT ONCE IT IS SHOWN THAT THE DEFENDANT TESTIFIED AFTER INADMISSIBLE
CONFESSIONS WERE USED, "THE GOVERNMENT MUST SHOW THAT ITS ILLEGAL
ACTION DID NOT INDUCE HIS TESTIMONY."  THIS DESPITE THE FACT THAT THE
ONLY PERSON WITH ACTUAL KNOWLEDGE OF THE SUBTLE AND VARIED "SPRINGS OF
CONDUCT" WHICH CAUSED THE DEFENDANT TO TAKE THE STAND IS THE DEFENDANT
HIMSELF.  THIS DESPITE THE FACT THAT ONLY FIVE YEARS AGO THIS COURT
CLEARLY AFFIRMED THE TRADTIONAL RULE THAT THE DEFENDANT BEARS THE
BURDEN OF SHOWING THAT THE EVIDENCE COMPLAINED OF WAS AN INADMISSIBLE
FRUIT OF ILLEGALITY.  FAHY V. CONNECTICUT, 375 U.S. 85, 91 (1963).  SEE
NARDONE V. UNITED STATES, 308 U.S. 338, 341 (1939).  THIS SWITCH IN THE
BURDEN CAN BE JUSTIFIED ONLY BY THE COURT'S MISGUIDED DESIRE TO EXCLUDE
IMPORTANT EVIDENCE FOR WHICH IT HAS SOMEHOW ACQUIRED A CONSTITUTIONAL
DISTASTE.  BECAUSE I REJECT THE END WHICH THE COURT SEEKS TO SERVE, I
CANNOT ENDORSE THIS NAKED MANIPULATION OF MEANS TO ACHIEVE THAT END. 

GIVEN THE COURT'S CURRENT IDEOLOGY ABOUT CONFESSIONS, THERE IS
PERHAPS SOME LOGIC ON THE SIDE OF THE COURT.  BUT COMMON SENSE AND
POLICY ARE SQUARELY OPPOSED.  THE IMPORTANT HUMAN VALUES WILL NOT BE
SERVED BY THE OBSTACLES WHICH THE COURT NOW PLACES IN THE PATH OF
POLICEMAN, PROSECUTOR, AND TRIAL JUDGE ALIKE.  CRIMINAL TRIALS WILL
SIMPLY BECOME LESS EFFECTIVE IN PROTECTING SOCIETY AGAINST THOSE WHO
HAVE MADE IT IMPOSSIBLE TO LIVE TODAY IN SAFETY. 

/1/  THE ESSENTIAL PREDICATE FOR EXCLUDING PETITIONER'S TESTIMONY IS
THE ILLEGALITY OF HIS CONFESSIONS.  THAT ISSUE, SEEMINGLY A CONDITION
PRECEDENT TO REVERSAL, THE COURT AVOIDS.  IT SIMPLY ASSUMES, WITHOUT
DECIDING, BOTH THAT THE CONFESSIONS WERE PROPERLY REJECTED BY THE COURT
OF APPEALS AND THAT THE PRIOR DECISIONS OF THE COURT OF APPEALS IN
KILLOUGH AND HARLING WERE CORRECTLY DECIDED.  I WOULD NOT REVERSE
WITHOUT REACHING THOSE QUESTIONS. 

/2/  "THE PURPOSE OF DEPRIVING THE GOVERNMENT OF ANY GAIN IS TO
REMOVE ANY INCENTIVE WHICH EXISTS TOWARD THE UNLAWFUL PRACTICE.  THE
FOCUS IS FORWARD-- TO PREVENT FUTURE VIOLATIONS, NOT PUNISH FOR PAST
ONES.  CONSEQUENTLY, WHERE THE CHAIN BETWEEN THE CHALLENGED EVIDENCE
AND THE PRIMARY ILLEGALITY IS LONG OR THE LINKAGE CAN BE SHOWN ONLY BY
'SOPHISTICATED ARGUMENT,' EXCLUSION WOULD SEEM INAPPROPRIATE.  IN SUCH
A CASE IT IS HIGHLY UNLIKELY THAT THE POLICE OFFICERS FORESAW THE
CHALLENGED EVIDENCE AS A PROBABLE PRODUCT OF THEIR ILLEGALITY; THUS IT
COULD NOT HAVE BEEN A MOTIVATING FORCE BEHIND IT.  IT FOLLOWS THAT THE
THREAT OF EXCLUSION COULD NOT POSSIBLY OPERATE AS A DETERRENT IN THAT
SITUATION.  ABSENT THIS, EXCLUSION CARRIES WITH IT NO BENEFIT TO
SOCIETY AND SHOULD NOT PREJUDICE SOCIETY'S CASE AGAINST A CRIMINAL." 
COMMENT, FRUIT OF THE POISONOUS TREE-- A PLEA FOR RELEVANT CRITERIA,
115 U.PA.L.REV.  1136, 1148-1149 (1967).  IN THE PAST THE COURT HAS
SHOWN GREATER APPRECIATION OF THE SIGNIFICANCE OF THE DETERRENCE
ELEMENT AS WELL AS OF THE CAUSAL ELEMENT, FOR BOTH MUST BE PRESENT TO
PRESENT A SUBSTANTIAL QUESTION FOR THIS COURT.  SEE SMITH V. UNITED
STATES, 117 U.S.APP.D.C. 1, 324 F.2D 879 (1963), CERT. DENIED, 377 U.S.
954 (1964); HARLOW V. UNITED STATES, 301 F.2D 361 (C.A. 5TH CIR.),
CERT. DENIED, 371 U.S. 814 (1962). 

ALFRED V. J. PRATHER, BY APPOINTMENT OF THE COURT, 389 U.S. 1002,
ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

FRANCIS X. BEYTAGH, JR., ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL VINSON, AND BEATRICE ROSENBERG. 
..END :













BOARD OF EDUCATION V. ALLEN, 392 U.S. 236 


       BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1 ET AL.

           V. ALLEN, COMMISSIONER OF EDUCATION OF NEW YORK, ET AL.

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 660.  ARGUED APRIL 22, 1968.-- DECIDED JUNE 10, 1968. 


NEW YORK'S EDUCATION LAW REQUIRES LOCAL PUBLIC SCHOOL AUTHORITIES TO
LEND TEXTBOOKS FREE OF CHARGE TO ALL STUDENTS IN GRADES SEVEN TO 12,
INCLUDING THOSE IN PRIVATE SCHOOLS.  APPELLANT SCHOOL BOARDS SOUGHT A
DECLARATION THAT THE STATUTORY REQUIREMENT WAS INVALID AS VIOLATIVE OF
THE STATE AND FEDERAL CONSTITUTIONS, AN ORDER BARRING APPELLEE
COMMISSION OF EDUCATION FROM REMOVING APPELLANTS' MEMBERS FROM OFFICE
FOR FAILING TO COMPLY WITH IT, AND AN ORDER PREVENTING THE USE OF STATE
FUNDS TO COMPLY WITH IT, AND AN ORDER PREVENTING THE USE OF STATE FUNDS
FOR THE PURCHASE OF TEXTBOOKS TO BE LENT TO PAROCHIAL STUDENTS.  THE
TRIAL COURT HELD THE LAW UNCONSTITUTIONAL UNDER THE FIRST AND
FOURTEENTH AMENDMENTS AND ENTERED SUMMARY JUDGMENT FOR APPELLANTS ON
THE PLEADINGS; THE APPELLATE DIVISION REVERSED AND ORDERED THE
COMPLAINT DISMISSED SINCE APPELLANT SCHOOL BOARDS HAD NO STANDING TO
ATTACK THE STATUTE; AND THE NEW YORK COURT OF APPEALS HELD THAT
APPELLANTS DID HAVE STANDING BUT THAT THE STATUTE DID NOT VIOLATE THE
STATE OR FEDERAL CONSTITUTION.  THE COURT OF APPEALS SAID THAT THE LAW
WAS TO BENEFIT ALL SCHOOL CHILDREN, WITHOUT REGARD TO THE TYPE OF
SCHOOL ATTENDED, THAT ONLY TEXTBOOKS APPROVED BY SCHOOL AUTHORITIES
COULD BE LOANED, AND THEREFORE THE STATUTE WAS "COMPLETELY NEUTRAL WITH
RESPECT TO RELIGION."  HELD:  THE STATUTE DOES NOT VIOLATE THE
ESTABLISHMENT OR THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT.  PP.
241-249. 

(1) THE EXPRESS PURPOSE OF THE STATUTE WAS THE FURTHERANCE OF
EDUCATIONAL OPPORTUNITIES FOR THE YOUNG, AND THE LAW MERELY MAKES
AVAILABLE TO ALL CHILDREN THE BENEFITS OF A GENERAL PROGRAM TO LEND
SCHOOL BOOKS FREE OF CHARGE, AND THE FINANCIAL BENEFIT IS TO PARENTS
AND CHILDREN, NOT TO SCHOOLS.  EVERSON V. BOARD OF EDUCATION, 330 U.S.
1.  PP. 243-244. 

(2) THERE IS NO EVIDENCE THAT RELIGIOUS BOOKS HAVE BEEN LOANED, AND
IT CANNOT BE ASSUMED THAT SCHOOL AUTHORITIES ARE UNABLE TO DISTINGUISH
BETWEEN SECULAR AND RELIGIOUS BOOKS OR THAT THEY WILL NOT HONESTLY
DISCHARGE THEIR DUTIES TO APPROVE ONLY SECULAR BOOKS.  PP. 244-245. 

(3) PAROCHIAL SCHOOLS, IN ADDITION TO THEIR SECTARIAN FUNCTION,
PERFORM THE TASK OF SECULAR EDUCATION, AND, ON THE BASIS OF THIS MEAGER
RECORD, THE COURT CANNOT AGREE WITH APPELLANTS THAT ALL TEACHING IN A
RELIGIOUS TRAINING IS SUCH THAT SECULAR TEXTBOOKS FURNISHED TO STUDENTS
ARE IN FACT INSTRUMENTAL IN TEACHING RELIGION.  PP. 245-248. 

(4) IN THE ABSENCE OF SPECIFIC EVIDENCE, AND BASED SOLELY ON
JUDICIAL NOTICE, IT CANNOT BE CONCLUDED THAT THE STATUTE RESULTS IN
UNCONSTITUTIONAL STATE INVOLVEMENT WITH RELIGIOUS INSTRUCTION OR
VIOLATES THE ESTABLISHMENT CLAUSE.  P. 248. 

(5) SINCE APPELLANTS HAVE NOT SHOWN THAT THE LAW COERCES THEM IN ANY
WAY IN THE PRACTICE OF RELIGION, THERE IS NO VIOLATION OF THE FREE
EXERCISE CLAUSE.  PP. 248-249. 

20 N.Y.2D 109, 228 N.E.2D 791, AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

A LAW OF THE STATE OF NEW YORK REQUIRES LOCAL PUBLIC SCHOOL
AUTHORITIES TO LEND TEXTBOOKS FREE OF CHARGE TO ALL STUDENTS IN GRADES
SEVEN THROUGH 12; STUDENTS ATTENDING PRIVATE SCHOOLS ARE INCLUDED. 
THIS CASE PRESENTS THE QUESTION WHETHER THIS STATUTE IS A "LAW
RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF," AND SO IN CONFLICT WITH THE FIRST AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION, BECAUSE IT AUTHORIZES THE LOAN OF
TEXTBOOKS TO STUDENTS ATTENDING PAROCHIAL SCHOOLS.  WE HOLD THAT THE
LAW IS NOT IN VIOLATION OF THE CONSTITUTION. 

UNTIL 1965, SEC. 701 OF THE EDUCATION LAW OF THE STATE OF NEW YORK
AUTHORIZED PUBLIC SCHOOL BOARDS TO DESIGNATE TEXTBOOKS FOR USE IN THE
PUBLIC SCHOOLS, TO PURCHASE SUCH BOOKS WITH PUBLIC FUNDS, AND TO RENT
OR SELL THE BOOKS TO PUBLIC SCHOOL STUDENTS.  /1/  IN 1965 THE
LEGISLATURE AMENDED SEC. 701, BASING THE AMENDMENTS ON FINDINGS THAT
THE "PUBLIC WELFARE AND SAFETY REQUIRE THAT THE STATE AND LOCAL
COMMUNITIES GIVE ASSISTANCE TO EDUCATIONAL PROGRAMS WHICH ARE IMPORTANT
TO OUR NATIONAL DEFENSE AND THE GENERAL WELFARE OF THE STATE."  /2/
BEGINNING WITH THE 1966-1967 SCHOOL YEAR, LOCAL SCHOOL BOARDS WERE
REQUIRED TO PURCHASE TEXTBOOKS AND LEND THEM WITHOUT CHARGE "TO ALL
CHILDREN RESIDING IN SUCH DISTRICT WHO ARE ENROLLED IN GRADES SEVEN TO
TWELVE OF A PUBLIC OR PRIVATE SCHOOL WHICH COMPLIES WITH THE COMPULSORY
EDUCATION LAW."  THE BOOKS NOW LOANED ARE "TEXT-BOOKS WHICH ARE
DESIGNATED FOR USE IN ANY PUBLIC, ELEMENTARY OR SECONDARY SCHOOLS OF
THE STATE OR ARE APPROVED BY ANY BOARDS OF EDUCATION," AND WHICH--
ACCORDING TO A 1966 AMENDMENT-- "A PUPIL IS REQUIRED TO USE AS A TEXT
FOR A SEMESTER OR MORE IN A PARTICULAR CLASS IN THE SCHOOL HE LEGALLY
ATTENDS."  /3/ 

APPELLANT BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1 IN
RENSSELAER AND COLUMBIA COUNTIES, BROUGHT SUIT IN THE NEW YORK COURTS
AGAINST APPELLEE JAMES ALLEN.  /4/  THE COMPLAINT ALLEGED THAT SEC. 701
VIOLATED BOTH THE STATE AND FEDERAL CONSTITUTIONS; THAT IF APPELLANTS,
IN RELIANCE ON THEIR INTERPRETATION OF THE CONSTITUTION, FAILED TO LEND
BOOKS TO PAROCHIAL SCHOOL STUDENTS WITHIN THEIR COUNTIES APPELLEE ALLEN
WOULD REMOVE APPELLANTS FROM OFFICE; AND THAT TO PREVENT THIS,
APPELLANTS WERE COMPLYING WITH THE LAW AND SUBMITTING TO THEIR
CONSTITUENTS A SCHOOL BUDGET INCLUDING FUNDS FOR BOOKS TO BE LENT TO
PAROCHIAL SCHOOL PUPILS.  APPELLANTS THEREFORE SOUGHT A DECLARATION
THAT SEC. 701 WAS INVALID, AN ORDER BARRING APPELLEE ALLEN FROM
REMOVING APPELLANTS FROM OFFICE FOR FAILING TO COMPLY WITH IT, AND
ANOTHER ORDER RESTRAINING HIM FROM APPORTIONING STATE FUNDS TO SCHOOL
DISTRICTS FOR THE PURCHASE OF TEXTBOOKS TO BE LENT TO PAROCHIAL
STUDENTS.  AFTER ANSWER, AND UPON CROSS-MOTIONS FOR SUMMARY JUDGMENT,
THE TRIAL COURT HELD THE LAW UNCONSTITUTIONAL UNDER THE FIRST AND
FOURTEENTH AMENDMENTS AND ENTERED JUDGMENT FOR APPELLANTS.  51 MISC.2D
297, 273 N.Y.S.2D 239 (1966).  THE APPELLATE DIVISION REVERSED,
ORDERING THE COMPLAINT DISMISSED ON THE GROUND THAT APPELLANT SCHOOL
BOARDS HAD NO STANDING TO ATTACK THE VALIDITY OF A STATE STATUTE.  27
APP.DIV.2D 69, 276 N.Y.S.2D 234 (1966).  ON APPEAL, THE NEW YORK COURT
OF APPEALS CONCLUDED BY A 4-3 VOTE THAT APPELLANTS DID HAVE STANDING
/5/  BUT BY A DIFFERENT 4-3 VOTE HELD THAT SEC. 701 WAS NOT IN
VIOLATION OF EITHER THE STATE OR THE FEDERAL CONSTITUTION.  20 N.Y.2D
109, 228 N.E.2D 791, 281 N.Y.S.2D 799 (1967).  THE COURT OF APPEALS
SAID THAT THE LAW'S PURPOSE WAS TO BENEFIT ALL SCHOOL CHILDREN,
REGARDLESS OF THE TYPE OF SCHOOL THEY ATTENDED, AND THAT ONLY TEXTBOOKS
APPROVED BY PUBLIC SCHOOL AUTHORITIES COULD BE LOANED.  IT THEREFORE
CONSIDERED SEC. 701 "COMPLETELY NEUTRAL WITH RESPECT TO RELIGION,
MERELY MAKING AVAILABLE SECULAR TEXTBOOKS AT THE REQUEST OF THE
INDIVIDUAL STUDENT AND ASKING NO QUESTION ABOUT WHAT SCHOOL HE
ATTENDS."  SECTION 701, THE COURT OF APPEALS CONCLUDED, IS NOT A LAW
WHICH "ESTABLISHES A RELIGION OR CONSTITUTES THE USE OF PUBLIC FUNDS TO
AID RELIGIOUS SCHOOLS."  20 N.Y.2D, AT 117; 228 N.E.2D, AT 794, 795;
281 N.Y.S.2D, AT 805.  WE NOTED PROBABLE JURISDICTION.  389 U.S. 1031
(1968). 

EVERSON V. BOARD OF EDUCATION, 330 U.S. 1 (1947), IS THE CASE
DECIDED BY THIS COURT THAT IS MOST NEARLY IN POINT FOR TODAY'S
PROBLEM.  NEW JERSEY REIMBURSED PARENTS FOR EXPENSES INCURRED IN BUSING
THEIR CHILDREN TO PAROCHIAL SCHOOLS.  THE COURT STATED THAT THE
ESTABLISHMENT CLAUSE BARS A STATE FROM PASSING "LAWS WHICH AID ONE
RELIGION, AID ALL RELIGIONS, OR PREFER ONE RELIGION OVER ANOTHER," AND
BARS TOO ANY "TAX IN ANY AMOUNT, LARGE OR SMALL . . . LEVIED TO SUPPORT
ANY RELIGIOUS ACTIVITIES OR INSTITUTIONS, WHATEVER THEY MAY BE CALLED,
OR WHATEVER FORM THEY MAY ADOPT TO TEACH OR PRACTICE RELIGION."  330
U.S.,AT 15-16.  NEVERTHELESS, SAID THE COURT, THE ESTABLISHMENT CLAUSE
DOES NOT PREVENT A STATE FROM EXTENDING THE BENEFITS OF STATE LAWS TO
ALL CITIZENS WITHOUT TENDING THE BENEFITS OF STATE LAWS TO ALL CITIZENS
WITHOUT REGARD FOR THEIR RELIGIOUS AFFILIATION AND DOES NOT PROHIBIT
"NEW JERSEY FROM SPENDING TAX-RAISED FUNDS TO PAY THE BUS FARES OF
PAROCHIAL SCHOOL PUPILS AS A PART OF A GENERAL PROGRAM UNDER WHICH IT
PAYS THE FARES OF PUPILS ATTENDING PUBLIC AND OTHER SCHOOLS."  THE
STATUTE WAS HELD TO BE VALID EVEN THOUGH ONE OF ITS RESULTS WAS THAT
"CHILDREN ARE HELPED TO GET TO CHURCH SCHOOLS" AND "SOME OF THE
CHILDREN MIGHT NOT BE SENT TO THE CHURCH SCHOOLS IF THE PARENTS WERE
COMPELLED TO PAY THEIR CHILDREN'S BUS FARES OUT OF THEIR OWN POCKETS." 
330 U.S.,AT 17.  AS WITH PUBLIC PROVISION OF POLICE AND FIRE
PROTECTION, SEWAGE FACILITIES, AND STREETS AND SIDEWALKS, PAYMENT OF
BUS FARES WAS OF SOME VALUE TO THE RELIGIOUS SCHOOL, BUT WAS
NEVERTHELESS NOT SUCH SUPPORT OF A RELIGIOUS INSTITUTION AS TO BE A
PROHIBITED ESTABLISHMENT OF RELIGION WITHIN THE MEANING OF THE FIRST
AMENDMENT. 

EVERSON AND LATER CASES HAVE SHOWN THAT THE LINE BETWEEN STATE
NEUTRALITY TO RELIGION AND STATE SUPPORT OF RELIGION IS NOT EASY TO
LOCATE.  "THE CONSTITUTIONAL STANDARD IS THE SEPARATION OF CHURCH AND
STATE.  THE PROBLEM LIKE MANY PROBLEMS IN CONSTITUTIONAL LAW, IS ONE OF
DEGREE."  ZORACH V. CLAUSON, 343 U.S. 306, 314 (1952).  SEE MCGOWAN V.
MARYLAND, 366 U.S. 420 (1961).  BASED ON EVERSON, ZORACH, MCGOWAN, AND
OTHER CASES, ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203 (1963),
FASHIONED A TEST SUBSCRIBED TO BY EIGHT JUSTICES FOR DISTINGUISHING
BETWEEN FORBIDDEN INVOLVEMENTS OF THE STATE WITH RELIGION AND THOSE
CONTACTS WHICH THE ESTABLISHMENT CLAUSE PERMITS: 

"THE TEST MAY BE STATED AS FOLLOWS:  WHAT ARE THE PURPOSE AND THE
PRIMARY EFFECT OF THE ENACTMENT?  IF EITHER IS THE ADVANCEMENT OR
INHIBITION OF RELIGION THEN THE ENACTMENT EXCEEDS THE SCOPE OF
LEGISLATIVE POWER AS CIRCUMSCRIBED BY THE CONSTITUTION.  THAT IS TO SAY
THAT TO WITHSTAND THE STRICTURES OF THE ESTABLISHMENT CLAUSE THERE MUST
BE A SECULAR LEGISLATIVE PURPOSE AND A PRIMARY EFFECT THAT NEITHER
ADVANCES NOR INHIBITS RELIGION.  EVERSON V. BOARD OF EDUCATION . . .
."  374 U.S.,AT 222. 

THIS TEST IS NOT EASY TO APPLY, BUT THE CITATION OF EVERSON BY THE
SCHEMPP COURT TO SUPPORT ITS GENERAL STANDARD MADE CLEAR HOW THE
SCHEMPP RULE WOULD BE APPLIED TO THE FACTS OF EVERSON.  THE STATUTE
UPHELD IN EVERSON WOULD BE CONSIDERED A LAW HAVING "A SECULAR
LEGISLATIVE PURPOSE AND A PRIMARY EFFECT THAT NEITHER ADVANCES NOR
INHIBITS RELIGION."  WE REACH THE SAME RESULT WITH RESPECT TO THE NEW
YORK LAW REQUIRING SCHOOL BOOKS TO BE LOANED FREE OF CHARGE TO ALL
STUDENTS IN SPECIFIED GRADES.  THE EXPRESS PURPOSE OF SEC. 701 WAS
STATED BY THE NEW YORK LEGISLATURE TO BE FURTHERANCE OF THE EDUCATIONAL
OPPORTUNITIES AVAILABLE TO THE YOUNG.  APPELLANTS HAVE SHOWN US NOTHING
ABOUT THE NECESSARY EFFECTS OF THE STATUTE THAT IS CONTRARY TO ITS
STATED PURPOSE.  THE LAW MERELY MAKES AVAILABLE TO ALL CHILDREN THE
BENEFITS OF A GENERAL PROGRAM TO LEND SCHOOL BOOKS FREE OF CHARGE. 
BOOKS ARE FURNISHED AT THE REQUEST OF THE PUPIL AND OWNERSHIP REMAINS,
AT LEAST TECHNICALLY, IN THE STATE.  THUS NO FUNDS OR BOOKS ARE
FURNISHED TO PAROCHIAL SCHOOLS, AND THE FINANCIAL BENEFIT IS TO PARENTS
AND CHILDREN, NOT TO SCHOOLS.  /6/  PERHAPS FREE BOOKS MAKE IT MORE
LIKELY THAT SOME CHILDREN CHOOSE TO ATTEND A SECTARIAN SCHOOL, BUT THAT
WAS TRUE OF THE STATE-PAID BUS FARES IN EVERSON AND DOES NOT ALONE
DEMONSTRATE AN UNCONSTITUTIONAL DEGREE OF SUPPORT FOR A RELIGIOUS
INSTITUTION. 

OF COURSE BOOKS ARE DIFFERENT FROM BUSES.  MOST BUS RIDES HAVE NO
INHERENT RELIGIOUS SIGNIFICANCE, WHILE RELIGIOUS BOOKS ARE COMMON. 
HOWEVER, THE LANGUAGE OF SEC. 701 DOES NOT AUTHORIZE THE LOAN OF
RELIGIOUS BOOKS, AND THE STATE CLAIMS NO RIGHT TO DISTRIBUTE RELIGIOUS
LITERATURE.  ALTHOUGH THE BOOKS LOANED ARE THOSE REQUIRED BY THE
PAROCHIAL SCHOOL FOR USE IN SPECIFIC COURSES, EACH BOOK LOANED MUST BE
APPROVED BY THE PUBLIC SCHOOL AUTHORITIES; ONLY SECULAR BOOKS MAY
RECEIVE APPROVAL.  THE LAW WAS CONSTRUED BY THE COURT OF APPEALS OF NEW
YORK AS "MERELY MAKING AVAILABLE SECULAR TEXTBOOKS AT THE REQUEST OF
THE INDIVIDUAL STUDENT," SUPRA, AND THE RECORD CONTAINS NO SUGGESTION
THAT RELIGIOUS BOOKS HAVE BEEN LOANED.  ABSENT EVIDENCE, WE CANNOT
ASSUME THAT SCHOOL AUTHORITIES, WHO CONSTANTLY FACE THE SAME PROBLEM IN
SELECTING TEXTBOOKS FOR USE IN THE PUBLIC SCHOOLS, ARE UNABLE TO
DISTINGUISH BETWEEN SECULAR AND RELIGIOUS BOOKS OR THAT THEY WILL NOT
HONESTLY DISCHARGE THEIR DUTIES UNDER THE LAW.  IN JUDGING THE VALIDITY
OF THE STATUTE ON THIS RECORD WE MUST PROCEED ON THE ASSUMPTION THAT
BOOKS LOANED TO STUDENTS ARE BOOKS THAT ARE NOT UNSUITABLE FOR USE IN
THE PUBLIC SCHOOLS BECAUSE OF RELIGIOUS CONTENT. 

THE MAJOR REASON OFFERED BY APPELLANTS FOR DISTINGUISHING FREE
TEXTBOOKS FROM FREE BUS FARES IS THAT BOOKS, BUT NOT BUSES, ARE
CRITICAL TO THE TEACHING PROCESS, AND IN A SECTARIAN SCHOOL THAT
PROCESS IS EMPLOYED TO TEACH RELIGION.  HOWEVER THIS COURT HAS LONG
RECOGNIZED THAT RELIGIOUS SCHOOLS PURSUE TWO GOALS, RELIGIOUS
INSTRUCTION AND SECULAR EDUCATION.  IN THE LEADING CASE OF PIERCE V.
SOCIETY OF SISTERS, 268 U.S. 510 (1925), THE COURT HELD THAT ALTHOUGH
IT WOULD NOT QUESTION OREGON'S POWER TO COMPEL SCHOOL ATTENDANCE OR
REQUIRE THAT THE ATTENDANCE BE AT AN INSTITUTION MEETING STATE-IMPOSED
REQUIREMENTS AS TO QUALITY AND NATURE OF CURRICULUM, OREGON HAD NOT
SHOWN?& THAT ITS INTEREST IN SECULAR EDUCATION REQUIRED THAT ALL
CHILDREN ATTEND PUBLICLY OPERATED SCHOOLS.  A PREMISE OF THIS HOLDING
WAS THE VIEW THAT THE STATE'S INTEREST IN EDUCATION WOULD BE SERVED
SUFFICIENTLY BY RELIANCE ON THE SECULAR TEACHING THAT ACCOMPANIED
RELIGIOUS TRAINING IN THE SCHOOLS MAINTAINED BY THE SOCIETY OF
SISTERS.  SINCE PIERCE, A SUBSTANTIAL BODY OF CASE LAW HAS CONFIRMED
THE POWER OF THE STATES TO INSIST THAT ATTENDANCE AT PRIVATE SCHOOLS,
IF IT IS TO SATISFY STATE COMPULSORY-ATTENDANCE LAWS, BE AT
INSTITUTIONS WHICH PROVIDE MINIMUM HOURS OF INSTRUCTION, EMPLOY
TEACHERS OF SPECIFIED TRAINING, AND COVER PRESCRIBED SUBJECTS OF
INSTRUCTION.  /7/  INDEED, THE STATE'S INTEREST IN ASSURING THAT THESE
STANDARDS ARE BEING MET HAS BEEN CONSIDERED A SUFFICIENT REASON FOR
REFUSING TO ACCEPT INSTRUCTION AT HOME AS COMPLIANCE WITH COMPULSORY
EDUCATION STATUTES.  /8/  THESE CASES WERE A SENSIBLE COROLLARY OF
PIERCE V. SOCIETY OF SISTERS:  IF THE STATE MUST SATISFY ITS INTEREST
IN SECULAR EDUCATION THROUGH THE INSTRUMENT OF PRIVATE SCHOOLS, IT HAS
A PROPER INTEREST IN THE MANNER IN WHICH THOSE SCHOOLS PERFORM THEIR
SECULAR EDUCATIONAL FUNCTION.  ANOTHER COROLLARY WAS COCHRAN V.
LOUISIANA STATE BOARD OF EDUCATION, 281 U.S. 370 (1930), WHERE
APPELLANTS SAID THAT A STATUTE REQUIRING SCHOOL BOOKS TO BE FURNISHED
WITHOUT CHARGE TO ALL STUDENTS, WHETHER THEY ATTENDED PUBLIC OR PRIVATE
SCHOOLS, DID NOT SERVE A "PUBLIC PURPOSE," AND SO OFFENDED THE
FOURTEENTH AMENDMENT.  SPEAKING THROUGH CHIEF JUSTICE HUGHES, THE COURT
SUMMARIZED AS FOLLOWS ITS CONCLUSION THAT LOUISIANA'S INTERST IN THE
SECULAR EDUCATION BEING PROVIDED BY PRIVATE SCHOOLS MADE PROVISION OF
TEXTBOOKS TO STUDENTS IN THOSE SCHOOLS A PROPERLY PUBLIC CONCERN:
"(THE STATE'S) INTEREST IS EDUCATION, BROADLY; ITS METHOD,
COMPREHENSIVE.  INDIVIDUAL INTERESTS ARE AIDED ONLY AS THE COMMON
INTEREST IS SAFEGUARDED."  281 U.S.,AT 375. 

UNDERLYING THESE CASES, AND UNDERLYING ALSO THE LEGISLATIVE
JUDGMENTS THAT HAVE PRECEDED THE COURT DECISIONS, HAS BEEN A
RECOGNITION THAT PRIVATE EDUCATION HAS PLAYED AND IS PLAYING A
SIGNIFICANT AND VALUABLE ROLE IN RAISING NATIONAL LEVELS OF KNOWLEDGE,
COMPETENCE, AND EXPERIENCE.  AMERICANS CARE ABOUT THE QUALITY OF THE
SECULAR EDUCATION AVAILABLE TO THEIR CHILDREN.  THEY HAVE CONSIDERED
HIGH QUALITY EDUCATION TO BE AN INDISPENSABLE INGREDIENT FOR ACHIEVING
THE KIND OF NATION, AND THE KIND OF CITIZENRY, THAT THEY HAVE DESIRED
TO CREATE.  CONSIDERING THIS ATTITUDE, THE CONTINUED WILLINGNESS TO
RELY ON PRIVATE SCHOOL SYSTEMS, INCLUDING PAROCHIAL SYSTEMS, STRONGLY
SUGGESTS THAT A WIDE SEGMENT OF INFORMED OPINION, LEGISLATIVE AND
OTHERWISE, HAS FOUND THAT THOSE SCHOOLS DO AN ACCEPTABLE JOB OF
PROVIDING SECULAR EDUCATION TO THEIR STUDENTS.  /9/  THIS JUDGMENT IS
FURTHER EVIDENCE THAT PAROCHIAL SCHOOLS ARE PERFORMING, IN ADDITION TO
THEIR SECTARIAN FUNCTION, THE TASK OF SECULAR EDUCATION.     AGAINST
THIS BACKGROUND OF JUDGMENT AND EXPERIENCE, UNCHALLENGED IN THE MEAGER
RECORD BEFORE US IN THIS CASE, WE CANNOT AGREE WITH APPELLANTS EITHER
THAT ALL TEACHING IN A SECTARIAN SCHOOL IS RELIGIOUS OR THAT THE
PROCESSES OF SECULAR AND RELIGIOUS TRAINING ARE SO INTERTWINED THAT
SECULAR TEXTBOOKS FURNISHED TO STUDENTS BY THE PUBLIC ARE IN FACT
INSTRUMENTAL IN THE TEACHING OF RELIGION.  THIS CASE COMES TO US AFTER
SUMMARY JUDGMENT ENTERED ON THE PLEADINGS.  NOTHING IN THIS RECORD
SUPPORTS THE PROPOSITION THAT ALL TEXTBOOKS, WHETHER THEY DEAL WITH
MATHEMATICS, PHYSICS, FOREIGN LANGUAGES, HISTORY, OR LITERATURE, ARE
USED BY THE PAROCHIAL SCHOOLS TO TEACH RELIGION.  NO EVIDENCE HAS BEEN
OFFERED ABOUT PARTICULAR SCHOOLS, PARTICULAR COURSES, PARTICULAR
TEACHERS, OR PARTICULAR BOOKS.  WE ARE UNABLE TO HOLD, BASED SOLELY ON
JUDICIAL NOTICE, THAT THIS STATUTE RESULTS IN UNCONSTITUTIONAL
INVOLVEMENT OF THE STATE WITH RELIGIOUS INSTRUCTION OR THAT SEC. 701,
FOR THIS OR THE OTHER REASONS URGED, IS A LAW RESPECTING THE
ESTABLISHMENT OF RELIGION WITHIN THE MEANING OF THE FIRST AMENDMENT. 

APPELLANTS ALSO CONTEND THAT SEC. 701 OFFENDS THE FREE EXERCISE
CLAUSE OF THE FIRST AMENDMENT.  HOWEVER, "IT IS NECESSARY IN A FREE
EXERCISE CASE FOR ONE TO SHOW THE COERCIVE EFFECT OF THE ENACTMENT AS
IT OPERATES AGAINST HIM IN THE PRACTICE OF HIS RELIGION," ABINGTON
SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203, 223 (1963), AND APPELLANTS
HAVE NOT CONTENDED THAT THE NEW YORK LAW IN ANY WAY COERCES THEM AS
INDIVIDUALS IN THE PRACTICE OF THEIR RELIGION. 

              THE JUDGMENT IS AFFIRMED. 

/1/  NEW YORK SESS. LAWS 1950, C. 239, SEC. 1.  NEW YORK EDUCATION
LAW SEC. 703, NEW YORK SESS. LAWS 1950, C. 239, SEC. 3, PERMITTED THE
QUALIFIED VOTERS OF ANY SCHOOL DISTRICT TO AUTHORIZE A SPECIAL TAX FOR
THE PURPOSE OF MAKING AVAILABLE FREE TEXTBOOKS.  THE 1965 AMENDMENTS
THAT REQUIRED FREE TEXTBOOKS TO BE PROVIDED FOR GRADES SEVEN THROUGH 12
AMENDED SEC. 703 SO THAT IT NOW PERMITS LOCAL VOTERS TO APPROVE FREE
BOOKS FOR GRADES ONE THROUGH SIX. 

/2/  NEW YORK SESS. LAWS 1965, C. 320, SEC. 1. 

/3/  NEW YORK EDUCATION LAW SEC. 701 (1967 SUPP.): 

"1.  IN THE SEVERAL CITIES AND SCHOOL DISTRICTS OF THE STATE, BOARDS
OF EDUCATION, TRUSTEES OR SUCH BODY OR OFFICER AS PERFORM THE FUNCTIONS
OF SUCH BOARDS, SHALL DESIGNATE TEXT-BOOKS TO BE USED IN THE SCHOOLS
UNDER THEIR CHARGE. 

"2.  A TEXT-BOOK, FOR THE PURPOSES OF THIS SECTION SHALL MEAN A BOOK
WHICH A PUPIL IS REQUIRED TO USE AS A TEXT FOR A SEMESTER OR MORE IN A
PARTICULAR CLASS IN THE SCHOOL HE LEGALLY ATTENDS. 

"3.  IN THE SEVERAL CITIES AND SCHOOL DISTRICTS OF THE STATE, BOARDS
OF EDUCATION, TRUSTEES OR SUCH BODY OR OFFICERS AS PERFORM THE FUNCTION
OF SUCH BOARDS SHALL HAVE THE POWER AND DUTY TO PURCHASE AND TO LOAN
UPON INDIVIDUAL REQUEST, TO ALL CHILDREN RESIDING IN SUCH DISTRICT WHO
ARE ENROLLED IN GRADES SEVEN TO TWELVE OF A PUBLIC OR PRIVATE SCHOOL
WHICH COMPLIES WITH THE COMPULSORY EDUCATION LAW, TEXT-BOOKS.  TEXT
BOOKS LOANED TO CHILDREN ENROLLED IN GRADES SEVEN TO TWELVE OF SAID
PRIVATE SCHOOLS SHALL BE TEXT-BOOKS WHICH ARE DESIGNATED FOR USE IN ANY
PUBLIC, ELEMENTARY OR SECONDARY SCHOOLS OF THE STATE OR ARE APPROVED BY
ANY BOARDS OF EDUCATION, TRUSTEES OR OTHER SCHOOL AUTHORITIES.  SUCH
TEXT-BOOKS ARE TO BE LOANED FREE TO SUCH CHILDREN SUBJECT TO SUCH RULES
AND REGULATIONS AS ARE OR MAY BE PRESCRIBED BY THE BOARD OF REGENTS AND
SUCH BOARDS OF EDUCATION, TRUSTEES OR OTHER SCHOOL AUTHORITIES." 

THE PRESENT SUBDIVISION 2 WAS ADDED BY AMENDMENT IN 1966, NEW YORK
SESS LAWS 1966, C. 795.  THIS SUIT WAS FILED, AND THE TRIAL COURT
OPINION WAS RENDERED, PRIOR TO THE 1966 AMENDMENT. 

/4/  INTERVENTION WAS PERMITTED ON PLAINTIFFS' SIDE BY THE BOARD OF
EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 3 IN NASSAU COUNTY, WHICH
APPEARS HERE AS CO-APPELLANT, AND ON DEFENDANTS' SIDE BY PARENTS OF
CERTAIN STUDENTS ATTENDING PRIVATE SCHOOLS, WHO APPEAR HERE AS CO
APPELLEES. 

/5/  APPELLEES DO NOT CHALLENGE THE STANDING OF APPELLANTS TO PRESS
THEIR CLAIM IN THIS COURT.  APPELLANTS HAVE TAKEN AN OATH TO SUPPORT
THE UNITED STATES CONSTITUTION.  BELIEVING SEC. 701 TO BE
UNCONSTITUTIONAL, THEY ARE IN THE POSITION OF HAVING TO CHOOSE BETWEEN
VIOLATING THEIR OATH AND TAKING A STEP-- REFUSAL TO COMPLY WITH SEC.
701-- THAT WOULD BE LIKELY TO BRING THEIR EXPULSION FROM OFFICE AND
ALSO A REDUCTION IN STATE FUNDS FOR THEIR SCHOOL DISTRICTS.  THERE CAN
BE NO DOUBT THAT APPELLANTS THUS HAVE A "PERSONAL STAKE IN THE OUTCOME"
OF THIS LITIGATION.  BAKER V. CARR, 369 U.S. 186, 204 (1962). 

/6/  WHILE THE RECORD AND THE STATE COURT OPINIONS IN THIS CASE
CONTAINED NO INFORMATION ABOUT HOW THE BOOKS ARE IN FACT TRANSFERRED
FROM THE BOARDS OF EDUCATION TO INDIVIDUAL STUDENTS, BOTH PARTIES
SUGGESTED IN THEIR BRIEFS AND ON ORAL ARGUMENT BEFORE THIS COURT THAT
NEW YORK PERMITS PRIVATE SCHOOLS TO SUBMIT TO BOARDS OF EDUCATION
SUMMARIES OF THE REQUESTS FOR TEXTBOOKS FILED BY INDIVIDUAL STUDENTS,
AND ALSO PERMITS PRIVATE SCHOOLS TO STORE ON THEIR PREMISES THE
TEXTBOOKS BEING LOANED BY THE BOARD OF EDUCATION TO THE STUDENTS.  THIS
INTERPRETATION OF THE STATE'S ADMINISTRATIVE PROCEDURE IS SUPPORTED BY
AN "OPINION OF COUNSEL" MADE AVAILABLE BY THE BOARD OF REGENTS AND THE
STATE DEPARTMENT OF EDUCATION TO LOCAL SCHOOL SUPERINTENDENTS.  FOR
PURPOSES OF THIS CASE WE CONSIDER THE NEW YORK STATUTE TO PERMIT THESE
PROCEDURES.  SO CONSTRUING THE STATUTE, WE FIND IT IN CONFORMITY WITH
THE CONSTITUTION, FOR THE BOOKS ARE FURNISHED FOR THE USE OF INDIVIDUAL
STUDENTS AND AT THEIR REQUEST. 

IT SHOULD BE NOTED THAT THE RECORD CONTAINS NO EVIDENCE THAT ANY OF
THE PRIVATE SCHOOLS IN APPELLANTS' DISTRICTS PREVIOUSLY PROVIDED
TEXTBOOKS FOR THEIR STUDENTS.  THERE IS SOME EVIDENCE THAT AT LEAST
SOME OF THE SCHOOLS DID NOT:  INTERVENOR DEFENDANTS ASSERTED THAT THEY
HAD PREVIOUSLY PURCHASED ALL THEIR CHILDREN'S TEXTBOOKS.  AND SEE
STATEMENT OF THEN COMMISSIONER OF EDUCATION KEPPEL:  "NONPUBLIC SCHOOLS
RARELY PROVIDE FREE TEXTBOOKS."  HEARINGS ON ELEMENTARY AND SECONDARY
EDUCATION ACT OF 1965 BEFORE GENERAL SUBCOMMITTEE ON EDUCATION OF HOUSE
COMMITTEE ON EDUCATION AND LABOR, 89TH CONG., 1ST SESS., PT. 1, 93
(1965). 

/7/  THIS COURT HAS TWICE SUGGESTED THE CONSTITUTIONALITY OF THESE
STATE REGULATIONS.  "(THE STATE MAY 'REQUIRE TEACHING BY INSTRUCTION
AND STUDY OF ALL IN OUR HISTORY AND IN THE STRUCTURE AND ORGANIZATION
OF OUR GOVERNMENT INCLUDING THE GUARANTIES OF CIVIL LIBERTY, WHICH TEND
TO INSPIRE PATRIOTISM AND LOVE OF COUNTRY.'"  WEST VIRGINIA STATE BOARD
OF EDUCATION V. BARNETTE 319, U.S. 624, 631 (1943), QUOTING MINERSVILLE
SCHOOL DISTRICT V. GOBITIS, 310 U.S. 586, 604 (1940) (STONE, J.,
DISSENTING).  THIS COURT HAS SAID THAT PARENTS MAY, IN THE DISCHARGE OF
THEIR DUTY UNDER STATE COMPULSORY EDUCATION LAWS, SEND THEIR CHILDREN
TO A RELIGIOUS RATHER THAN A PUBLIC SCHOOL IF THE SCHOOL MEETS THE
SECULAR EDUCATIONAL REQUIREMENTS WHICH THE STATE HAS POWER TO IMPOSE." 
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 18 (1947) (CITING PIERCE V.
SOCIETY OF SISTERS).  A GREAT MANY STATE CASES HAVE UPHELD A WIDE RANGE
OF PRIVATE SCHOOL REGULATION.  E.G., MEYERKORTH V. STATE, 173 NEB. 889,
115 N.W.2D 585 (1962), APPEAL DISMISSED FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION, 372 U.S. 705 (1963); STATE V. HOYT, 84 N.H. 38, 146
A. 170 (1929); PEOPLE V. DONNER, 199 MISC. 643, 99 N.Y.S.2D 830 (DOM. 
REL.  CT. 1950), AFF'D MEM., 278 APP.DIV.  705, 103 N.Y.S.2D 757, AFF'D
MEM., 302 N.Y. 857, 100 N.E.2D 48, APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION, 342 U.S. 884 (1951). 

NEW YORK STATE REGULATES PRIVATE SCHOOLS EXTENSIVELY, ESPECIALLY AS
TO ATTENDANCE AND CURRICULUM.  NEW YORK EDUCATION LAW SECS. 3201-3229
(1953).  REGENTS EXAMINATIONS ARE GIVEN TO PRIVATE SCHOOL STUDENTS. 
ID., SEC. 209.  THE BASIC REQUIREMENT IS THAT THE INSTRUCTION GIVEN IN
PRIVATE SCHOOLS SATISFYING THE COMPULSORY ATTENDANCE LAW BE "AT LEAST
SUBSTANTIALLY EQUIVALENT TO THE INSTRUCTION GIVEN TO MINORS OF LIKE AGE
AND ATTAINMENTS AT THE PUBLIC SCHOOLS OF THE CITY OR DISTRICT WHERE THE
MINOR RESIDES."  ID., SEC. 3204 SUBD. 2. 

NEW YORK REQUIRES SCHOOL ATTENDANCE OF "EACH MINOR FROM SEVEN TO
SIXTEEN YEARS OF AGE" UNLESS HE HAS COMPLETED HIGH SCHOOL.  ID., SEC.
3205. 

/8/  E.G., PEOPLE V. TURNER, 121 CAL.APP.2D 861, 263 P.2D 685
(1953), APPEAL DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION,
347 U.S. 972 (1954). 

/9/  IN 1965-1966 IN NEW YORK STATE, OVER 900,000 STUDENTS, OR 22.2%
OF TOTAL STATE ENROLLMENT, ATTENDED NONPUBLIC SCHOOLS.  UNIVERSITY OF
STATE OF NEW YORK, EDUCATION STATISTICS ESTIMATES 1966-67, TABLE I
(1966).  THE COMPARABLE STATISTIC FOR THE NATION WAS AT LEAST 10%.
UNITED STATES BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED
STATES:  1967, AT 111 (1967). 

MR. JUSTICE HARLAN, CONCURRING. 

ALTHOUGH I JOIN THE OPINION AND JUDGMENT OF THE COURT, I WISH TO
EMPHASIZE CERTAIN OF THE PRINCIPLES WHICH I BELIEVE TO BE CENTRAL TO
THE DETERMINATION OF THIS CASE, AND WHICH I THINK ARE IMPLICIT IN THE
COURT'S DECISION. 

THE ATTITUDE OF GOVERNMENT TOWARD RELIGION MUST, AS THIS COURT HAS
FREQUENTLY OBSERVED, BE ONE OF NEUTRALITY.  NEUTRALITY IS, HOWEVER, A
COAT OF MANY COLORS.  IT REQUIRES THAT "GOVERNMENT NEITHER ENGAGE IN
NOR COMPEL RELIGIOUS PRACTICES, THAT IT EFFECT NO FAVORITISM AMONG
OF NO RELIGIOUS BELIEF."  ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S.
203, 305 (CONCURRING OPINION OF GOLDBERG, J.).  REALIZATION OF THESE
OBJECTIVES ENTAILS "NO SIMPLE AND CLEAR MEASURE," ID., AT 306, BY WHICH
THIS OR ANY CASE MAY READILY BE DECIDED, BUT THESE OBJECTIVES DO
SUGGEST THE PRINCIPLES WHICH I BELIEVE TO BE APPLICABLE IN THE PRESENT
CIRCUMSTANCES.  I WOULD HOLD THAT WHERE THE CONTESTED GOVERNMENTAL
ACTIVITY IS CALCULATED TO ACHIEVE NONRELIGIOUS PURPOSES OTHERWISE
WITHIN THE COMPETENCE OF THE STATE, AND WHERE THE ACTIVITY DOES NOT
INVOLVE THE STATE "SO SIGNIFICANTLY AND DIRECTLY IN THE REALM OF THE
OF FREEDOM," ID., AT 307, IT IS NOT FORBIDDEN BY THE RELIGIOUS CLAUSES
OF THE FIRST AMENDMENT. 

IN MY OPINION, SEC. 701 OF THE EDUCATION LAW OF NEW YORK DOES NOT
EMPLOY RELIGION AS ITS STANDARD FOR ACTION OR INACTION, AND IS NOT
OTHERWISE INCONSISTENT WITH THESE PRINCIPLES. 

MR. JUSTICE BLACK, DISSENTING. 

THE COURT HERE AFFIRMS A JUDGMENT OF THE NEW YORK COURT OF APPEALS
WHICH SUSTAINED THE CONSTITUTIONALITY OF A NEW YORK LAW PROVIDING STATE
TAX-RAISED FUNDS TO SUPPLY SCHOOL BOOKS FOR USE BY PUPILS IN SCHOOLS
OWNED AND OPERATED BY RELIGIOUS SECTS.  I BELIEVE THE NEW YORK LAW HELD
VALID IS A FLAT, FLAGRANT, OPEN VIOLATION OF THE FIRST AND FOURTEENTH
AMENDMENTS WHICH TOGETHER FORBID CONGRESS OR STATE LEGISLATURES TO
ENACT ANY LAW "RESPECTING AN ESTABLISHMENT OF RELIGION."  FOR THAT
REASON I WOULD REVERSE THE NEW YORK COURT OF APPEALS' JUDGMENT.  THIS,
I AM CONFIDENT, WOULD BE IN KEEPING WITH THE DELIBERATE STATEMENT WE
MADE IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 15-16 (1947), AND
REPEATED IN MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 210-211
(1948), THAT: 

"NEITHER A STATE NOR THE FEDERAL GOVERNMENT CAN SET UP A CHURCH. 
NEITHER CAN PASS LAWS WHICH AID ONE RELIGION, AID ALL RELIGIONS, OR
PREFER ONE RELIGION OVER ANOTHER.  NEITHER CAN FORCE NOR INFLUENCE A
PERSON TO GO TO OR TO REMAIN AWAY FROM CHURCH AGAINST HIS WILL OR FORCE
HIM TO PROFESS A BELIEF OR DISBELIEF IN ANY RELIGION.  NO PERSON CAN BE
PUNISHED FOR ENTERTAINING OR PROFESSING RELIGIOUS BELIEFS OR
DISBELIEFS, FOR CHURCH ATTENDANCE OR NON-ATTENDANCE.  NO TAX IN ANY
AMOUNT, LARGE OR SMALL, CAN BE LEVIED TO SUPPORT ANY RELIGIOUS
ACTIVITIES OR INSTITUTIONS, WHATEVER THEY MAY BE CALLED, OR WHATEVER
FORM THEY MAY ADOPT TO TEACH OR PRACTICE RELIGION.  NEITHER A STATE NOR
THE FEDERAL GOVERNMENT CAN, OPENLY OR SECRETLY, PARTICIPATE IN THE
AFFAIRS OF ANY RELIGIOUS ORGANIZATIONS OR GROUPS AND VICE VERSA.  IN
THE WORDS OF JEFFERSON, THE CLAUSE AGAINST ESTABLISHMENT OF RELIGION BY
LAW WAS INTENDED TO ERECT 'A WALL OF SEPARATION BETWEEN CHURCH AND
STATE.'" 

THE EVERSON AND MCCOLLUM CASES PLAINLY INTERPRET THE FIRST AND
FOURTEENTH AMENDMENTS AS PROTECTING THE TAXPAYERS OF A STATE FROM BEING
COMPELLED TO PAY TAXES TO THEIR GOVERNMENT TO SUPPORT THE AGENCIES OF
PRIVATE RELIGIOUS ORGANIZATIONS THE TAXPAYERS OPPOSE.  TO AUTHORIZE A
STATE TO TAX ITS RESIDENTS FOR SUCH CHURCH PURPOSES IS TO PUT THE STATE
SQUARELY IN THE RELIGIOUS ACTIVITIES OF CERTAIN RELIGIOUS GROUPS THAT
HAPPEN TO BE STRONG ENOUGH POLITICALLY TO WRITE THEIR OWN RELIGIOUS
PREFERENCES AND PREJUDICES INTO THE LAWS.  THIS LINKS STATE AND
CHURCHES TOGETHER IN CONTROLLING THE LIVES AND DESTINIES OF OUR
CITIZENSHIP-- A CITIZENSHIP COMPOSED OF PEOPLE OF MYRIAD RELIGIOUS
FAITHS, SOME OF THEM BITTERLY HOSTILE TO AND COMPLETELY INTOLERANT OF
THE OTHERS.  IT WAS TO ESCAPE LAWS PRECISELY LIKE THIS THAT A LARGE
PART OF THE NATION'S EARLY IMMIGRANTS FLED TO THIS COUNTRY.  IT WAS
ALSO TO ESCAPE SUCH LAWS AND SUCH CONSEQUENCES THAT THE FIRST AMENDMENT
WAS WRITTEN IN LANGUAGE STRONG AND CLEAR BARRING PASSAGE OF ANY LAW
"RESPECTING AN ESTABLISHMENT OF RELIGION." 

IT IS TRUE, OF COURSE, THAT THE NEW YORK LAW DOES NOT AS YET
FORMALLY ADOPT OR ESTABLISH A STATE RELIGION.  BUT IT TAKES A GREAT
STRIDE IN THAT DIRECTION AND COMING EVENTS CAST THEIR SHADOWS BEFORE
THEM.  THE SAME POWERFUL SECTARIAN RELIGIOUS PROPAGANDISTS WHO HAVE
SUCCEEDED IN SECURING PASSAGE OF THE PRESENT LAW TO HELP RELIGIOUS
SCHOOLS CARRY ON THEIR SECTARIAN RELIGIOUS PURPOSES CAN AND DOUBTLESS
WILL CONTINUE THEIR PROPAGANDA, LOOKING TOWARD COMPLETE DOMINATION AND
SUPREMACY OF THEIR PARTICULAR BRAND OF RELIGION.  /1/  AND IT NEARLY
ALWAYS IS BY INSIDIOUS APPROACHES THAT THE CITADELS OF LIBERTY ARE MOST
SUCCESSFULLY ATTACKED.  /2/    I KNOW OF NO PRIOR OPINION OF THIS COURT
UPON WHICH THE MAJORITY HERE CAN RIGHTFULLY RELY TO SUPPORT ITS HOLDING
THIS NEW YORK LAW CONSTITUTIONAL.  IN SAYING THIS, I AM NOT UNMINDFUL
OF THE FACT THAT THE NEW YORK COURT OF APPEALS PURPORTED TO FOLLOW
EVERSON V. BOARD OF EDUCATION, SUPRA, IN WHICH THIS COURT, IN AN
OPINION WRITTEN BY ME, UPHELD A NEW JERSEY LAW AUTHORIZING
REIMBURSEMENT TO PARENTS FOR THE TRANSPORTATION OF CHILDREN ATTENDING
GENERAL TERMS TO CHILDREN OF ANY FAITH GOING TO ANY LEGALLY AUTHORIZED
SCHOOL.  THUS, IT WAS TREATED IN THE SAME WAY AS A GENERAL LAW PAYING
THE STREETCAR FARE OF ALL SCHOOL CHILDREN, OR A LAW PROVIDING MIDDAY
LUNCHES FOR ALL CHILDREN OR ALL SCHOOL CHILDREN, OR A LAW TO PROVIDE
POLICE PROTECTION FOR CHILDREN GOING TO AND FROM SCHOOL, OR GENERAL
LAWS TO PROVIDE POLICE AND FIRE PROTECTION FOR BUILDINGS, INCLUDING, OF
COURSE, CHURCHES AND CHURCH SCHOOL BUILDINGS AS WELL AS OTHERS. 

AS MY BROTHER DOUGLAS SO FORCEFULLY SHOWS, IN AN ARGUMENT WITH WHICH
I FULLY AGREE, UPHOLDING A STATE'S POWER TO PAY BUS OR STREETCAR FARES
FOR SCHOOL CHILDREN CANNOT PROVIDE SUPPORT FOR THE VALIDITY OF A STATE
LAW USING TAX-RAISED FUNDS TO BUY SCHOOL BOOKS FOR A RELIGIOUS SCHOOL. 
THE FIRST AMENDMENT'S BAR TO ESTABLISHMENT OF RELIGION MUST PRECLUDE A
STATE FROM USING FUNDS LEVIED FROM ALL OF ITS CITIZENS TO PURCHASE
BOOKS FOR USE BY SECTARIAN SCHOOLS, WHICH, ALTHOUGH "SECULAR,"
REALISTICALLY WILL IN SOME WAY INEVITABLY TEND TO PROPAGATE THE
RELIGIOUS VIEWS OF THE FAVORED SECT.  BOOKS ARE THE MOST ESSENTIAL TOOL
OF EDUCATION SINCE THEY CONTAIN THE RESOURCES OF KNOWLEDGE WHICH THE
EDUCATIONAL PROCESS IS DESIGNED TO EXPLOIT.  IN THIS SENSE IT IS NOT
DIFFICULT TO DISTINGUISH BOOKS, WHICH ARE THE HEART OF ANY SCHOOL, FROM
BUS FARES, WHICH PROVIDE A CONVENIENT AND HELPFUL GENERAL PUBLIC
TRANSPORTATION SERVICE.  WITH RESPECT TO THE FORMER, STATE FINANCIAL
SUPPORT ACTIVELY AND DIRECTLY ASSISTS THE TEACHING AND PROPAGATION OF
AMENDMENT'S ESTABLISHMENT BAR; WITH RESPECT TO THE LATTER, THE STATE
MERELY PROVIDES A GENERAL AND NONDISCRIMINATORY TRANSPORTATION SERVICE
IN NO WAY RELATED TO SUBSTANTIVE RELIGIOUS VIEWS AND BELIEFS. 

THIS NEW YORK LAW, IT MAY BE SAID BY SOME, MAKES BUT A SMALL INROAD
AND DOES NOT AMOUNT TO COMPLETE STATE ESTABLISHMENT OF RELIGION.  BUT
THAT IS NO EXCUSE FOR UPHOLDING IT.  IT REQUIRES NO PROPHET TO FORESEE
THAT ON THE ARGUMENT USED TO SUPPORT THIS LAW OTHERS COULD BE UPHELD
PROVIDING FOR STATE OR FEDERAL GOVERNMENT FUNDS TO BUY PROPERTY ON
WHICH TO ERECT RELIGIOUS SCHOOL BUILDINGS OR TO ERECT THE BUILDINGS
THEMSELVES, TO PAY THE SALARIES OF THE RELIGIOUS SCHOOL TEACHERS, AND
FINALLY TO HAVE THE SECTARIAN RELIGIOUS GROUPS CEASE TO RELY ON
VOLUNTARY CONTRIBUTIONS OF MEMBERS OF THEIR SECTS WHILE WAITING FOR THE
GOVERNMENT TO PICK UP ALL THE BILLS FOR THE RELIGIOUS SCHOOLS. 
ARGUMENTS MADE IN FAVOR OF THIS NEW YORK LAW POINT SQUARELY IN THIS
DIRECTION, NAMELY, THAT THE FACT THAT GOVERNMENT HAS NOT HERETOFORE
AIDED RELIGIOUS SCHOOLS WITH TAX-RAISED FUNDS AMOUNTS TO A
DISCRIMINATION AGAINST THOSE SCHOOLS AND AGAINST RELIGION.  AND THAT
THERE ARE ALREADY EFFORTS TO HAVE GOVERNMENT SUPPLY THE MONEY TO ERECT
BUILDINGS FOR SECTARIAN RELIGIOUS SCHOOLS IS SHOWN BY A RECENT ACT OF
CONGRESS WHICH APPARENTLY ALLOWS FOR PRECISELY THAT.  SEE HIGHER
EDUCATION FACILITIES ACT OF 1963, 77 STAT. 363, 20 U.S.C. 701 ET SEQ. 

I STILL SUBSCRIBE TO THE BELIEF THAT TAX-RAISED FUNDS CANNOT
CONSTITUTIONALLY BE USED TO SUPPORT RELIGIOUS SCHOOLS, BUY THEIR SCHOOL
BOOKS, ERECT THEIR BUILDINGS, PAY THEIR TEACHERS, OR PAY ANY OTHER OF
THEIR MAINTENANCE EXPENSES, EVEN TO THE EXTENT OF ONE PENNY.  THE FIRST
AMENDMENT'S PROHIBITION AGAINST GOVERNMENTAL ESTABLISHMENT OF RELIGION
WAS WRITTEN ON THE ASSUMPTION THAT STATE AID TO RELIGION AND RELIGIOUS
SCHOOLS GENERATES DISCOURD, DISHARMONY, HATRED, AND STRIFE AMONG OUR
PEOPLE, AND THAT ANY GOVERNMENT THAT SUPPLIES SUCH AIDS IS TO THAT
EXTENT A TYRANNY.  AND I STILL BELIEVE THAT THE ONLY WAY TO PROTECT
MINORITY RELIGIOUS GROUPS FROM MAJORITY GROUPS IN THIS COUNTRY IS TO
KEEP THE WALL OF SEPARATION BETWEEN CHURCH AND STATE HIGH AND
IMPREGNABLE AS THE FIRST AND FOURTEENTH AMENDMENTS PROVIDE.  THE
COURT'S AFFIRMANCE HERE BODES NOTHING BUT EVIL TO RELIGIOUS PEACE IN
THIS COUNTRY. 

/1/  SEE DISSENTING OPINION OF MR.JUSTICE DOUGLAS, POST, P. 254. 

/2/  SEE BOYD V. UNITED STATES, 116 U.S. 616. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WE HAVE FOR REVIEW A STATUTE WHICH AUTHORIZES NEW YORK STATE TO
SUPPLY TEXTBOOKS TO STUDENTS IN PAROCHIAL AS WELL AS IN PUBLIC
SCHOOLS.  THE NEW YORK COURT OF APPEALS SUSTAINED THE LAW ON THE
GROUNDS THAT IT INVOLVES ONLY "SECULAR TEXTBOOKS" AND THAT THAT TYPE OF
AID FALLS WITHIN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, /1/  WHERE
A DIVIDED COURT UPHELD A STATE LAW WHICH MADE BUS SERVICE AVAILABLE TO
STUDENTS IN PAROCHIAL SCHOOLS AS WELL AS TO STUDENTS IN PUBLIC
SCHOOLS.  20 N.Y.2D 109, 228 N.E.2D 791, 281 N.Y.S.2D 799. 

THE STATUTE ON ITS FACE EMPOWERS EACH PAROCHIAL SCHOOL TO DETERMINE
FOR ITSELF WHICH TEXTBOOKS WILL BE ELIGIBLE FOR LOANS TO ITS STUDENTS,
FOR THE ACT PROVIDES THAT THE ONLY TEXT WHICH THE STATE MAY PROVIDE IS
"A BOOK WHICH A PUPIL IS REQUIRED TO USE AS A TEXT FOR A SEMESTER OR
MORE IN A PARTICULAR CLASS IN THE SCHOOL HE LEGALLY ATTENDS."  NEW YORK
EDUCATION LAW SEC. 701, SUBD. 2.  THIS INITIAL AND CRUCIAL SELECTION IS
UNDOUBTEDLY MADE BY THE PAROCHIAL SCHOOL'S PRINCIPAL OR ITS INDIVIDUAL
INSTRUCTORS, WHO ARE, IN THE CASE OF ROMAN CATHOLIC SCHOOLS, NORMALLY
PRIESTS OR NUNS. 

THE NEXT STEP UNDER THE ACT IS AN "INDIVIDUAL REQUEST" FOR AN
ELIGIBLE TEXTBOOK (SEC. 701, SUBD. 3), BUT THE STATE EDUCATION
DEPARTMENT HAS RULED THAT A PUPIL MAY MAKE HIS REQUEST TO THE LOCAL
PUBLIC BOARD OF EDUCATION THROUGH A "PRIVATE SCHOOL OFFICIAL."  /2/
LOCAL BOARDS HAVE ACCORDINGLY PROVIDED FOR THOSE REQUESTS TO BE MADE BY
THE INDIVIDUAL OR "BY GROUPS OR CLASSES."  /3/  AND FORMS FOR TEXTBOOK
REQUISITIONS TO BE FILLED OUT BY THE HEAD OF THE PRIVATE SCHOOL ARE
PROVIDED.  /4/ 

THE ROLE OF THE LOCAL PUBLIC SCHOOL BOARD IS TO DECIDE WHETHER TO
VETO THE SELECTION MADE BY THE PAROCHIAL SCHOOL.  THIS IS DONE BY
DETERMINING FIRST WHETHER THE TEXT HAS BEEN OR SHOULD BE "APPROVED" FOR
USE IN PUBLIC SCHOOLS AND SECOND WHETHER THE TEXT IS "SECULAR,"
"NONRELIGIOUS," OR "NON-SECTARIAN."  /5/  THE LOCAL BOARDS APPARENTLY
HAVE BROAD DISCRETION IN EXERCISING THIS VETO POWER.  /6/ 

THUS THE STATUTORY SYSTEM PROVIDES THAT THE PAROCHIAL SCHOOL WILL
ASK FOR THE BOOKS THAT IT WANTS.  CAN THERE BE THE SLIGHTEST DOUBT THAT
THE HEAD OF THE PAROCHIAL SCHOOL WILL SELECT THE BOOK OR BOOKS THAT
BEST PROMOTE ITS SECTARIAN CREED? 

IF THE BOARD OF EDUCATION SUPINELY SUBMITS BY APPROVING AND
SUPPLYING THE SECTARIAN OR SECTARIAN-ORIENTED TEXTBOOKS, THE STRUGGLE
TO KEEP CHURCH AND STATE SEPARATE HAS BEEN LOST.  IF THE BOARD RESISTS,
THEN THE BATTLE LINE BETWEEN CHURCH AND STATE WILL HAVE BEEN DRAWN AND
THE CONTEST WILL BE ON TO KEEP THE SCHOOL BOARD INDEPENDENT OR TO PUT
IT UNDER CHURCH DOMINATION AND CONTROL. 

WHATEVER MAY BE SAID OF EVERSON, THERE IS NOTHING IDEOLOGICAL ABOUT
A BUS.  THERE IS NOTHING IDEOLOGICAL ABOUT A SCHOOL LUNCH, OR A PUBLIC
NURSE, OR A SCHOLARSHIP.  THE CONSTITUTIONALITY OF SUCH PUBLIC AID TO
STUDENTS IN PAROCHIAL SCHOOLS TURNS ON CONSIDERATIONS NOT PRESENT IN
THIS TEXTBOOK CASE.  THE TEXTBOOK GOES TO THE VERY HEART OF EDUCATION
IN A PAROCHIAL SCHOOL.  IT IS THE CHIEF, ALTHOUGH NOT SOLITARY,
INSTRUMENTALITY FOR PROPAGATING A PARTICULAR RELIGIOUS CREED OR FAITH. 
HOW CAN WE POSSIBLY APPROVE SUCH STATE AID TO A RELIGION?  A PAROCHIAL
SCHOOL TEXTBOOK MAY CONTAIN MANY, MANY MORE SEEDS OF CREED AND DOGMA
THAN A PRAYER.  YET WE STRUCK DOWN IN ENGEL V. VITALE, 370 U.S. 421, AN
OFFICIAL NEW YORK PRAYER FOR ITS PUBLIC SCHOOLS, EVEN THOUGH IT WAS NOT
PLAINLY DENOMINATIONAL.  FOR WE EMPHASIZED THE VIOLENCE DONE THE
ESTABLISHMENT CLAUSE WHEN THE POWER WAS GIVEN RELIGIOUS-POLITICAL
GROUPS "TO WRITE THEIR OWN PRAYERS INTO LAW."  ID., AT 427.  THAT RISK
IS COMPOUNDED HERE BY GIVING PAROCHIAL SCHOOLS THE INITIATIVE IN
SELECTING THE TEXTBOOKS THEY DESIRE TO BE FURNISHED AT PUBLIC EXPENSE. 

JUDGE VAN VOORHIS, JOINED BY CHIEF JUDGE FULD AND JUDGE BREITEL,
DISSENTING BELOW, SAID THAT THE DIFFICULTY WITH THE TEXTBOOK LOAN
PROGRAM "IS THAT THERE IS NO RELIABLE STANDARD BY WHICH SECULAR AND
RELIGIOUS TEXTBOOKS CAN BE DISTINGUISHED FROM EACH OTHER."  20 N.Y.2D,
AT 122, 228 N.E.2D, AT 798, 281 N.Y.S.2D, AT 809.  THE NEW YORK
LEGISLATURE FELT THAT SCIENCE WAS A NONSECTARIAN SUBJECT (SEE N. 5,
SUPRA).  DOES THIS MEAN THAT ANY GENERAL SCIENCE TEXTBOOK INTENDED FOR
USE IN GRADES 7-12 MAY BE PROVIDED BY THE STATE TO PAROCHIAL SCHOOL
STUDENTS?  MAY JOHN M. SCOTT'S ADVENTURES IN SCIENCE (1963) BE SUPPLIED
UNDER THE TEXTBOOK LOAN PROGRAM?  THIS BOOK TEACHES EMBRYOLOGY IN THE
FOLLOWING MANNER: 

"TO YOU AN ANIMAL USUALLY MEANS A MAMMAL, SUCH AS A CAT, DOG,

  SQUIRREL, OR GUINEA PIG.  THE NEW ANIMAL OR EMBRYO DEVELOPS

  INSIDE THE BODY OF THE MOTHER UNTIL BIRTH.  THE FERTILIZED EGG

  BECOMES AN EMBRYO OR DEVELOPING ANIMAL.  MANY CELL DIVISIONS TAKE

  PLACE.  IN TIME SOME CELLS BECOME MUSCLE CELLS, OTHERS NERVE

  CELLS OR BLOOD CELLS, AND ORGANS SUCH AS EYES, STOMACH, AND

  INTESTINE ARE FORMED. 

     "THE BODY OF A HUMAN BEING GROWS IN THE SAME WAY, BUT IT IS

  MUCH MORE REMARKABLE THAN THAT OF ANY ANIMAL, FOR THE EMBRYO HAS

  A HUMAN SOUL INFUSED INTO THE BODY BY GOD.  HUMAN PARENTS ARE

  PARTNERS WITH GOD IN CREATION.  THEY HAVE VERY GREAT POWERS AND

  GREAT RESPONSIBILITIES, FOR THROUGH THEIR COOPERATION WITH GOD

  SOULS ARE BORN FOR HEAVEN."  (AT 618-619.)  /7/ 

COMPARATIVE ECONOMICS WOULD SEEM TO BE A NONSECTARIAN SUBJECT.  WILL
NEW YORK, THEN, PROVIDE ARTHUR J. HUGHES' GENERAL HISTORY TEXT, MAN IN
TIME (1964), TO PAROCHIAL SCHOOL STUDENTS?  IT TREATS THAT TOPIC IN
THIS MANNER: 

     "CAPITALISM IS AN ECONOMIC SYSTEM BASED ON MAN'S RIGHT TO

  PRIVATE PROPERTY AND ON HIS FREEDOM TO USE THAT PROPERTY IN

  PRODUCING GOODS WHICH WILL EARN HIM A JUST PROFIT ON HIS

  INVESTMENT.  MAN'S RIGHT TO PRIVATE PROPERTY STEMS FROM THE

  NATURAL LAW IMPLANTED IN HIM BY GOD.  IT IS AS MUCH A PART OF

  MAN'S NATURE AS THE WILL TO SELF-PRESERVATION."  (AT 560.) 

     "THE BROADEST DEFINITION OF SOCIALISM IS GOVERNMENT OWNERSHIP

  OF ALL THE MEANS OF PRODUCTION AND DISTRIBUTION IN A COUNTRY . .

  . . MAY, BUT BY NO MEANS ALL, SOCIALISTS IN THE NINETEENTH

  CENTURY BELIEVED THAT CRIME AND VICE EXISTED BECAUSE POVERTY

  EXISTED, AND IF POVERTY WERE ELIMINATED, THEN CRIME AND VICE

WOULD DISAPPEAR.  WHILE IT IS TRUE THAT POOR SURROUNDINGS ARE

  USUALLY UNHEALTHY CLIMATES FOR HIGH MORAL TRAINING, STILL, MAN

  HAS THE FREE WILL TO CHECK HIMSELF.  MANY SOCIALISTS, HOWEVER,

  DENIED FREE WILL AND SAID THAT MAN WAS A CREATION OF HIS

  ENVIRONMENT . . . . IF SOCIALISTS DO NOT DENY CHRISTS' MESSAGE,

  THEY OFTEN IGNORE IT.  CHRIST SHOWED US BY HIS LIFE THAT THIS

  EARTH IS A TESTING GROUND TO PREPARE MAN FOR ETERNAL HAPPINESS. 

  MAN'S INTERESTS SHOULD BE IN THIS DIRECTION AT LEAST PART OF THE

  TIME AND NOT ALWAYS DIRECTED TOWARD A FUTILE QUEST FOR MATERIAL

GOODS."  (AT 561-564.)  /8/ 

MR. JUSTICE JACKSON SAID, " . . . I SHOULD SUPPOSE IT IS A PROPER,
IF NOT AN INDISPENSABLE, PART OF PREPARATION FOR A WORLDLY LIFE TO KNOW
THE ROLES THAT RELIGION AND RELIGIONS HAVE PLAYED IN THE TRAGIC STORY
OF MANKIND."  MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 236
(CONCURRING OPINION).  YET, AS HE INQUIRED, WHAT EMPHASIS SHOULD ONE
GIVE WHO TEACHES THE REFORMATION, THE INQUISITION, OR THE EARLY EFFORT
IN NEW ENGLAND TO ESTABLISH "'A CHURCH WITHOUT A BISHOP AND A STATE
WITHOUT A KING?'"  IBID.  WHAT BOOKS SHOULD BE CHOSEN FOR THOSE
SUBJECTS? 

EVEN WHERE THE TREATMENT GIVEN TO A PARTICULAR TOPIC IN A SCHOOL
TEXTBOOK IS NOT BLATANTLY SECTARIAN, IT WILL NECESSARILY HAVE CERTAIN
SHADINGS THAT WILL LEAD A PAROCHIAL SCHOOL TO PREFER ONE TEXT OVER
ANOTHER.  /9/ 

THE CRUSADES, FOR EXAMPLE, MAY BE TAUGHT AS A CHRISTIAN UNDERTAKING
TO "SAVE THE HOLY LAND" FROM THE MOSLEM TURKS WHO "BECAME A THREAT TO
CHRISTIANITY AND ITS HOLY PLACES," WHICH "THEY DID NOT TREAT . . . WITH
RESPECT" (H. WILSON, F. WILSON, B. ERB & E. CLUCAS, OUT OF THE PAST 284
(1954)), OR AS ESSENTIALLY A SERIES OF WARS BORN OUT OF POLITICAL AND
MATERIALISTIC MOTIVES (SEE G. LEINWAND, THE PAGEANT OF WORLD HISTORY
136-137 (1965)). 

IS THE DAWN OF MAN TO BE EXPLAINED IN THE WORDS, "GOD CREATED MAN
AND MADE MAN MASTER OF THE EARTH" (P. FURLONG, THE OLD WORLD AND
AMERICA 5 (1937)), OR IN THE LANGUAGE OF EVOLUTION (SEE T. WALLBANK,
MAN'S STORY 32-35 (1961))? 

IS THE SLAUGHTER OF THE AZTECS BY CORTES AND HIS ENTOURAGE TO BE
LAMENTED FOR ITS DESTRUCTION OF A NEW WORLD CULTURE (SEE J. CAUGHEY, J.
FRANKLIN, & E. MAY, LAND OF THE FREE 27-28 (1965)), OR FORGIVEN BECAUSE
THE SPANIARDS "CARRIED THE TRUE FAITH" TO A BARBARIC PEOPLE WHO
PRACTICED HUMAN SACRIFICE (SEE P. FURLONG, SR. MARGARET, & D. SHARKEY,
AMERICA YESTERDAY 17, 34 (1963))? 

IS FRANCO'S REVOLUTION IN SPAIN TO BE TAUGHT AS A CRUSADE AGAINST
ANTI-CATHOLIC FORCES (SEE R. HOFFMAN, G. VINCITORIO, & M. SWIFT, MAN
AND HIS HISTORY 666-667 (1958)) /10/  OR AN AN EFFORT BY REACTIONARY
ELEMENTS TO REGAIN CONTROL OF THAT COUNTRY (SEE G. LEINWAND, THE
PAGEANT OF WORLD HISTORY, SUPRA, AT 512)?  /11/  IS THE EXPANSION OF
COMMUNISM IN SELECT AREAS OF THE WORLD A MANIFESTATION OF THE FORCES OF
EVIL CAMPAIGNING AGAINST THE FORCES OF GOOD?  SEE A. HUGHES, MAN IN
TIME, SUPRA, AT 565-568, 666-669, 735-748. 

IT WILL BE OFTEN DIFFICULT, AS MR. JUSTICE JACKSON SAID, TO SAY
"WHERE THE SECULAR ENDS AND THE SECTARIAN BEGINS IN EDUCATION." 
MCCOLLUM V. BOARD OF EDUCATION, 333 U.S.,AT 237-238.  BUT CERTAIN IT IS
THAT ONCE THE SO-CALLED "SECULAR" TEXTBOOK IS THE PRIZE TO BE WON BY
THAT RELIGIOUS FAITH WHICH SELECTS THE BOOK, THE BATTLE WILL BE ON FOR
THOSE POSITIONS OF CONTROL.  JUDGE VAN VOORHIS EXPRESSED THE FEAR THAT
IN THE END THE STATE MIGHT DOMINATE THE CHURCH.  OTHERS FEAR THAT ONE
THE "SECULAR" TEXTBOOKS, WILL USE THEIR CONTROL TO DISSEMINATE IDEAS
MOST CONGENIAL TO THEIR FAITH.  IT MUST BE REMEMBERED THAT THE VERY
EXISTENCE OF THE RELIGIOUS SCHOOL-- WHETHER CATHOLIC OR MORMON,
PRESBYTERIAN OR EPISCOPALIAN-- IS TO PROVIDE AN EDUCATION ORIENTED TO
THE DOGMA OF THE PARTICULAR FAITH.  /12/ 

FATHER PETER O'REILLY PUT THE MATTER SUCCINCTLY WHEN HE DISCLOSED
WHAT WAS HAPPENING IN ONE CATHOLIC SCHOOL:  /13/  "ON FEBRUARY 24,
1954, REV. CYRIL F. MEYER, C.M., THEN VICE PRESIDENT OF THE UNIVERSITY,
SENT THE FOLLOWING LETTER TO ALL THE FACULTY, BOTH CATHOLICS AND NON
CATHOLICS, EVEN THOSE TEACHING LAW, SCIENCE, AND MATHEMATICS:  "'DEAR
FACULTY MEMBER: "'AS A RESULT OF SEVERAL SPIRITED DISCUSSIONS IN THE
ACADEMIC SENATE, A RESOLUTION WAS PASSED BY THAT BODY THAT A SELF
EVALUATION BE MADE OF THE EFFECTIVENESS WITH WHICH WE ARE ACHIEVING IN
OUR CLASSROOMS THE STATED OBJECTIVES OF THE UNIVERSITY . . . . THE
PRIMACY OF THE SPIRITUAL IS THE REASON FOR A CHRISTIAN UNIVERSITY.  OUR
GOAL IS NOT MERELY TO EQUIP STUDENTS WITH MARKETABLE SKILLS.  IT IS FAR
ABOVE THIS-- TO EDUCATE MAN, THE WHOLE MAN, THE THEOCENTRIC MAN.  AS
YOU ARE WELL AWARE, WE STRIVE TO EDUCATE NOT ONLY FOR PERSONAL AND
SOCIAL SUCCESS IN SECULAR SOCIETY, BUT FAR MORE FOR LEADERSHIP TOWARD A
THEOCENTRIC SOCIETY . . . . 

"'MAY I, THEREFORE, RESPECTFULLY REQUEST THAT YOU SUBMIT ANSWERS AS
SPECIFIC AS POSSIBLE TO THE FOLLOWING QUESTIONS: 

"'1.  WHAT DO YOU DO TO MAKE YOUR PARTICULAR COURSES THEOCENTRIC? 

"'2.  DO YOU BELIEVE THERE IS ANYTHING THE ADMINISTRATION OR YOUR
COLLEAGUES CAN DO TO ASSIST YOU IN PRESENTING YOUR PARTICULAR COURSES
MORE "ACCORDING TO THE PHILOSOPHICAL AND THEOLOGICAL TRADITIONS OF THE
ROMAN CATHOLIC CHURCH"?  DO NOT HESITATE TO LET US KNOW.  THERE IS NO
OBJECTIVE OF OUR UNIVERSITY MORE FUNDAMENTAL THAN THIS.  WE MUST ALL BE
AWARE THAT "THE CLASSROOM THAT IS NOT A TEMPLE IS A DEN." 

"'PLEASE TRY TO HAVE YOUR ANSWERS, USING THIS SIZE PAPER, RETURNED
TO ME BY MARCH 10.'" 

THIS TENDENCY IS NO CATHOLIC MONOPOLY: 

"THE PRESBYTERIAN-AFFILIATED LEWIS AND CLARK COLLEGE SEEMS TO HAVE A
SIMILAR INTEREST IN APPEARANCES OF AUTONOMY, WITH A VIEW TO AVOIDING
POSSIBLE LEGAL BARS TO BOTH FEDERAL FUNDS AND GIFTS FROM SOME
FOUNDATIONS.  THE CHANGE, WHICH LEGITIMIZES THE COLLEGE AS AN
AUTONOMOUS EDUCATIONAL INSTITUTION, REMOVES THE REQUIREMENT THAT EACH
PRESBYTERY IN OREGON HAVE AT LEAST ONE REPRESENTATIVE ON THE BOARD, BUT
IT WAS MADE CLEAR 'THE COLLEGE WISHES TO CHANGE ONLY ITS LEGAL
RELATIONSHIP TO THE SYNOD AND NOT ITS PURPOSES,' AND PROMISED THAT IT
STILL WILL ELECT A MINISTER FROM EACH PRESBYTERY TO THE BOARD ON
NOMINATION OF THE SYNOD, AND WILL CONSULT THE SYNOD BEFORE MAKING ANY
CHANGE IN ITS STATEMENT OF PURPOSE, WHICH DEFINES IT AS A PRESBYTERIAN
RELATED COLLEGE."  /14/ 

THE CHALLENGED NEW YORK LAW LEAVES TO THE BOARD OF REGENTS, LOCAL
BOARDS OF EDUCATION, TRUSTEES, AND OTHER SCHOOL AUTHORITIES THE
SUPERVISION OF THE TEXTBOOK PROGRAM. 

THE BOARD OF REGENTS (TOGETHER WITH THE COMMISSIONER OF EDUCATION)
HAS POWERS OF CENSORSHIP OVER ALL TEXTBOOKS THAT CONTAIN STATEMENTS
SEDITIOUS IN CHARACTER, OR EVINCE DISLOYALTY TO THE UNITED STATES OR
ARE FAVORABLE TO ANY NATION WITH WHICH WE ARE AT WAR.  NEW YORK
EDUCATION LAW SEC. 704.  THOSE POWERS CAN CUT A WIDE SWATH IN MANY
AREAS OF EDUCATION THAT INVOLVE THE IDOLOGICAL ELEMENT.  /15/ 

IN GENERAL TEXTBOOKS ARE APPROVED FOR DISTRIBUTION BY "BOARDS OF
EDUCATION TRUSTEES OR SUCH BODY OR OFFICER AS PERFORM THE FUNCTIONS OF
SUCH BOARDS . . . ."  NEW YORK EDUCATION LAW SEC. 701, SUBD. 1.  THESE
SCHOOL BOARDS ARE GENERALLY ELECTED, SECS. 2013, 2502, SUBD. 2, THOUGH
IN A FEW CITIES THEY ARE APPOINTED.  SEC. 2553.  WHERE THERE ARE
TRUSTEES, THEY ARE ELECTED.  SECS. 1523, 1602, 1702.  AND
SUPERINTENDENTS WHO ADVISE ON TEXTBOOK SELECTION ARE APPOINTED BY THE
BOARD OF EDUCATION OR THE TRUSTEES.  SECS. 1711, 2503, SUBD. 5, 2507. 

THE INITIATIVE TO SELECT AND REQUISITION "THE BOOKS DESIRED" IS WITH
THE PAROCHIAL SCHOOL.  POWERFUL RELIGIOUS-POLITICAL PRESSURES WILL
THEREFORE BE ON THE STATE AGENCIES TO PROVIDE THE BOOKS THAT ARE
DESIRED. 

THESE THEN ARE THE BATTLEGROUNDS WHERE CONTROL OF TEXTBOOK
DISTRIBUTION WILL BE WON OR LOST.  NOW THAT "SECULAR" TEXTBOOKS WILL
POUR INTO RELIGIOUS SCHOOLS, WE CAN REST ASSURED THAT A CONTEST WILL BE
ON /16/  TO PROVIDE THOSE BOOKS FOR RELIGIOUS SCHOOLS WHICH THE
DOMINANT RELIGIOUS GROUP CONCLUDES BEST REFLECT THE THEOCENTRIC OR
OTHER PHILOSOPHY OF THE PARTICULAR CHURCH. 

THE STAKES ARE NOW EXTREMELY HIGH-- JUST AS THEY WERE IN THE SCHOOL
PRAYER CASES (SEE ENGEL V. VITALE, SUPRA)-- TO OBTAIN APPROVAL OF WHAT
IS "PROPER."  FOR THE "PROPER" BOOKS WILL RADIATE THE "CORRECT"
RELIGIOUS VIEW NOT ONLY IN THE PAROCHIAL SCHOOL BUT IN THE PUBLIC
SCHOOL AS WELL. 

EVEN IF I AM WRONG IN THAT BASIC PREMISE, WE STILL SHOULD NOT AFFIRM
THE JUDGMENT BELOW.  JUDGE VAN VOORHIS, DISSENTING IN THE NEW YORK
COURT OF APPEALS, THOUGHT THAT THE RESULT OF TYING PAROCHIAL SCHOOL
TEXTBOOKS TO PUBLIC FUNDS WOULD BE TO PUT NONSECTARIAN BOOKS INTO
RELIGIOUS SCHOOLS, WHICH IN THE LONG VIEW WOULD TEND TOWARDS STATE
DOMINATION OF THE CHURCH.  20 N.Y.2D, AT 123, 228 N.E.2D, AT 798, 281
N.Y.S.2D, AT 810.  THAT WOULD, INDEED, BE THE RESULT IF THE SCHOOL
BOARDS DID NOT SUCCUMB TO "SECTARIAN" PRESSURE OR CONTROL.  SO, HOWEVER
THE CASE BE VIEWED-- WHETHER SECTARIAN GROUPS WIN CONTROL OF SCHOOL
BOARDS OR DO NOT GAIN SUCH CONTROL-- THE PRINCIPLE OF SEPARATION OF
CHURCH AND STATE, INHERENT IN THE ESTABLISHMENT CLAUSE OF THE FIRST
AMENDMENT, IS VIOLATED BY WHAT WE TODAY APPROVE. 

WHAT MADISON WROTE IN HIS FAMOUS MEMORIAL AND REMONSTRANCE AGAINST
RELIGIOUS ASSESSMENTS IS HIGHLY PERTINENT HERE:  /17/ 

"WHO DOES NOT SEE THAT THE SAME AUTHORITY WHICH CAN ESTABLISH
CHRISTIANITY, IN EXCLUSION OF ALL OTHER RELIGIONS, MAY ESTABLISH WITH
THE SAME EASE ANY PARTICULAR SECT OF CHRISTIANS, IN EXCLUSION OF ALL
OTHER SECTS?  THAT THE SAME AUTHORITY WHICH CAN FORCE A CITIZEN TO
CONTRIBUTE THREE PENCE ONLY OF HIS PROPERTY FOR THE SUPPORT OF ANY ONE
ESTABLISHMENT, /18/  MAY FORCE HIM TO CONFORM TO ANY OTHER
ESTABLISHMENT IN ALL CASES WHATSOEVER?" 

        APPENDIX A TO OPINION OF DOUGLAS, J., DISSENTING.  CODE--
220-399-2-NYSTL REQ.  NUMBER . . . .

        TEXTBOOK REQUISITION PUBLISHERS NAME . . . . STREET ADDRESS
. . . . CITY AND STATE . . . . 

     SHIP TO -- EDISON WAREHOUSE 

     STREET -- VAN GUYSLING AVE. 

   CITY & STATE -- SCHENECTADY, N.Y.

        .  .          .          . NO. COPIES . . . NAME OF BOOK .
. . . TOTAL . . . EDITION . . . . GRADE LEVEL . . . . PRICE PER BOOK .
. . . . . . .

              TOTAL AMOUNT 

I CERTIFY THAT THE FOLLOWING NUMBER OF CHILDREN RESIDING IN YOUR
SCHOOL DISTRICT HAVE INDIVIDUALLY REQUESTED THE LOAN OF THE TEXTBOOK
INDICATED ABOVE FOR THE SCHOOL YEAR 1967-68 IN ACCORDANCE WITH SECTION
701, SUBDIVISION 2, OF THE EDUCATION LAW.  FORM 1 REQUESTS HAVE BEEN
SUBMITTED TO YOU FOR EACH CHILD.  I ALSO CERTIFY THAT THE TEXTBOOK
REQUESTED IS A NON-SECTARIAN EDITION AND APPROVED FOR USE BY A NEW YORK
STATE PUBLIC SCHOOL DISTRICT.  . . . . . . . . . . NAME OF
PAROCHIAL/PRIVATE SCHOOL OFFICIAL OF PRIVATE SCHOOL

        APPENDIX B TO OPINION OF DOUGLAS, J., DISSENTING. 

        LETTER OF FRANCIS CARDINAL SPELLMAN,

        NOVEMBER 1, 1967. 

ONE OF THE MOST PRECIOUS RIGHTS WHICH WE HAVE IN OUR CIVIL SOCIETY
IS THE RIGHT TO VOTE.  THIS RIGHT SHOULD BE EXERCISED WITH REVERENCE
AND WITH UNDERSTANDING-- PARTICULARLY WHEN EMOTIONAL FEELINGS RUN
HIGH. 

AN IMPORTANT OPPORTUNITY TO EXERCISE THIS RIGHT WILL BE PROVIDED ON
NEXT TUESDAY, NOVEMBER 7TH.  ON THAT DAY WE ARE ASKED TO CHOOSE BETWEEN
THE OLD STATE CONSTITUTION AND THE PROPOSED NEW STATE CONSTITUTION.  WE
WILL DECIDE WHETHER THE PROVISIONS OF THE NEW CONSTITUTION WILL BETTER
SERVE THE CHANGING NEEDS OF OUR FAMILIES, OUR NEIGHBORS, AND OUR
INSTITUTIONS, BOTH PUBLIC AND PRIVATE 

WE ARE FACED WITH A GRAVE RESPONSIBILITY TO WEIGH THIS CHOICE
CAREFULLY AND TO VOTE CONSCIENTIOUSLY.  I HAVE VIEWED WITH CONCERN THE
TONE OF THE PAST MONTH'S DISCUSSION WITH REGARD TO THE PROPOSED NEW
CONSTITUTION.  I AM DISAPPOINTED THAT SO MUCH OF THE OPPOSITION TO THE
CONSTITUTION COMES FROM THOSE FORCES IN OUR PLURALISTIC SOCIETY WHO
WOULD DENY EQUAL EDUCATIONAL OPPORTUNITIES TO CHILDREN ATTENDING
PAROCHIAL SCHOOLS.  AS A CITIZEN I AM DISMAYED TO THINK THAT THEY WOULD
HAVE OVERWHELMINGLY SUPPORTED THE NEW CONSTITUTION WERE IT NOT FOR THE
FACT THAT IT REPEALS THE BLAINE AMENDMENT.     THE PROPOSED NEW
CONSTITUTION, AS A WHOLE, IS SO CLOSELY RELATED TO OUR LIVES THAT IT
MUST COMMAND OUR CAREFUL CONSIDERATION.  THIS DOCUMENT ADDRESSES ITSELF
TO VALUES BASIC TO THE FULFILLMENT OF OUR LIVES AS CITIZENS.  WE MUST
BE AWARE THAT THIS CONSTITUTION CONTAINS NEW PROVISIONS DESIGNED TO
FACILITATE THE REBUILDING OF OUR COMMUNITIES, NEW PROVISIONS COMMITTING
THE STATE TO THE MAXIMUM DEVELOPMENT OF THE EDUCATIONAL POTENTIAL OF
EVERY CITIZEN, NEW PROVISIONS ENABLING GOVERNMENT, IN A RESPONSIBLE
WAY, TO MOBILIZE ALL THE FORCES OF SOCIETY TO MEET THE CHANGING NEEDS
OF ALL OUR PEOPLE, TO ENHANCE THEIR ENVIRONMENT AND TO PROMOTE THEIR
SOCIAL WELL-BEING. 

AT THE CLOSE OF THE CONSTITUTIONAL CONVENTION I EXPRESSED MY OPINION
THAT THE CONVENTION HAD PRODUCED A DOCUMENT WORTHY OF SUPPORT BY THE
PEOPLE OF NEW YORK STATE.  NOTHING IN THE PUBLIC DEBATE SINCE THEN HAS
CAUSED ME TO ALTER MY JUDGMENT. 

I KNOW THAT YOU WILL CONSCIENTIOUSLY FULFILL YOUR CIVIC DUTY AND
THAT YOU WILL GIVE SERIOUS CONSIDERATION TO THIS PROPOSED NEW
CONSTITUTION.  /19/ 

/1/  EVERSON, RELIED ON BY THE COURT OF APPEALS OF NEW YORK, DID NOT
INVOLVE TEXTBOOKS AND DID NOT PRESENT THE SERIOUS PROBLEMS RAISED BY A
FORM OF AID TO PAROCHIAL STUDENTS WHICH INJECTS RELIGIOUS ISSUES INTO
THE CHOICE OF CURRICULUM.  IN THE ONLY DECISION OF THIS COURT UPHOLDING
A STATE GRANT OF TEXTBOOKS TO SECTARIAN SCHOOL STUDENTS, COCHRAN V.
BOARD OF EDUCATION, 281 U.S. 370, THE FIRST AMENDMENT ISSUE WAS NOT
RAISED.  SEE ID., AT 370-373; EVERSON V. BOARD OF EDUCATION, 330 U.S.
1, 29, N. 3 (DISSENTING OPINION). 

/2/  LETTER FROM HERBERT F. JOHNSON, STATE EDUCATION DEPARTMENT, TO
CITY, VILLAGE AND DISTRICT SUPERINTENDENTS & SUPERVISING PRINCIPALS,
PARA. 5, JAN. 10, 1966, REPRODUCED IN BRIEF FOR AMERICAN JEWISH
COMMITTEE ET AL. AS AMICI CURIAE, AT 43, 44. 

/3/  MANUAL OF INSTRUCTIONS ON RECORDKEEPING PROCEDURES FOR
TEXTBOOKS LOANED IN CONFORMANCE WITH PROVISIONS OF THE NEW YORK STATE
TEXTBOOK LAW PARA. 2.3 (1967), REPRODUCED IN BRIEF FOR NATIONAL JEWISH
COMMISSION ON LAW AND PUBLIC AFFAIRS AS AMICUS CURIAE, AT 24, 25. 

/4/  SEE APPENDIX A TO THIS OPINION. 

/5/  THE STATE COURT OF APPEALS USED THE PHRASES "SECULAR TEXTBOOKS"
AND "NONRELIGIOUS TEXTBOOKS" WITHOUT ANY ELABORATION AS TO WHAT WAS
MEANT.  20 N.Y.2D, AT 117, 228 N.E.2D, AT 794-795, 281 N.Y.S.2D, AT
805.  THE LEGISLATURE, IN ITS "STATEMENT OF POLICY" TO THE ACT (LAWS OF
1965, C. 320, SEC. 1), SPEAKS OF AIDING INSTRUCTION IN "NON-SECTARIAN
SUBJECTS," AND GIVES AS EXAMPLES "SCIENCE, MATHEMATICS, (AND) FOREIGN
LANGUAGES."  THE STATE DEPARTMENT OF EDUCATION HAS STATED THAT "IT IS
NECESSARY THAT . . . (THE TEXTBOOKS BE NON-SECTARIAN (THIS ELIMINATES
DENOMINATIONAL EDITIONS AND THOSE CARRYING THE 'IMPRIMATUR' OR 'NIHIL
OBSTAT' OF A RELIGIOUS AUTHORITY) . . . ."  OPINION OF COUNSEL NO.
181.  THERE ARE NO OTHER DEFINITIONS TO BE FOUND. 

THE COURT WAS ADVISED AT ORAL ARGUMENT BY THE ASSISTANT ATTORNEY
GENERAL THAT OPINION OF COUNSEL NO. 181 IS ADVISORY ONLY AND NOT
BINDING.  IT WOULD STATE THE POLICY OF THE NEW YORK DEPARTMENT OF
EDUCATION IN EVENT OF AN APPEAL TO IT BY A TAXPAYER OF A LOCAL BOARD'S
DECISION THAT A CERTAIN TEXT WAS "NON-SECTARIAN" OR SHOULD BE
"APPROVED."  THE REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK,
WHO HAVE THE LAST WORD ON SUCH MATTERS AND ARE SPECIFICALLY AUTHORIZED
BY SEC. 701, SUBD. 3, TO PROMULGATE REGULATIONS RESPECTING THE TEXTBOOK
LOAN PROGRAM, HAVE NOT DONE SO, AND THEIR POSITION ON WHAT IS "NON

/6/  FOR EXAMPLE THE REGULATIONS OF THE BOARD OF EDUCATION OF THE
CITY OF NEW YORK RESPECTING APPROVAL OF TEXTBOOKS FOR PUBLIC SCHOOLS
CONTAIN NO LIMITATIONS DIRECTLY RELEVANT TO THE QUESTION OF
EDUCATIONAL PROGRAM," "TREAT THE SUBJECT COMPETENTLY AND ACCURATELY,"
"BE IN GOOD TASTE," "HAVE A WHOLESOME TONE THAT IS CONSONANT WITH RIGHT
CONDUCT AND CIVIC VALUES," "BE IN HARMONY WITH AMERICAN DEMOCRATIC
IDEALS AND MORAL VALUES," "BE FREE OF ANY REFLECTION ON THE DIGNITY AND
STATUS OF ANY GROUP, RACE, OR RELIGION, WHETHER EXPRESSED OR IMPLIED,
BY STATEMENT OR OMISSION," AND "BE FREE OF OBJECTIONABLE FEATURES OF
OVER-DRAMATIZATION, VIOLENCE, OR CRIME."  GUIDING PRINCIPLES FOR
SCHOOLS IN THE SELECTION AND USE OF "NON-LISTED" INSTRUCTIONAL
MATERIALS (1952).  OPINION OF COUNSEL NO. 181 (SEE N. 5, SUPRA) SIMPLY
STATES THAT THE LOCAL BOARD, IF IT FINDS THAT NO OTHER BOARD HAS
APPROVED THE TEXT IN QUESTION, SHOULD "DECIDE IF IT WISHES TO APPROVE
THE SAME ITSELF."  THIS OPINION OF COUNSEL ALSO STATES THAT IF THE
BOARD IS IN DOUBT AS TO WHETHER A TEXT IS "NON-SECTARIAN," THAT IS
WHETHER IT CARRIES AN IMPRIMATUR OR NIHIL OBSTAT OR IS A DENOMINATIONAL
EDITION, IT "MUST MAKE THE APPROPRIATE DETERMINATION." 

/7/  ALTHOUGH THE AUTHOR OF THIS TEXTBOOK IS A PRIEST, THE TEXT
CONTAINS NO IMPRIMATUR AND NO NIHIL OBSTAT.  ALTHOUGH PUBLISHED BY A
CATHOLIC PRESS, THE LOYOLA UNIVERSITY PRESS, CHICAGO, IT IS NOT MARKED
IN ANY MANNER AS A "DENOMINATIONAL EDITION," BUT IS SIMPLY THE GENERAL
EDITION OF THE BOOK.  ACCORDINGLY, UNDER OPINION OF COUNSEL NO. 181,
THE ONLY DOCUMENT APPROACHING A "REGULATION" ON THE ISSUE INVOLVED
HERE, ADVENTURES IN SCIENCE WOULD QUALIFY AS "NON-SECTARIAN."  SEE NN.
5, 6, SUPRA. 

/8/  MAN IN TIME CONTAINS A NIHIL OBSTAT AND AN IMPRIMATUR.  THUS,
IF OPINION OF COUNSEL NO. 181 (SEE NN. 5, 6, SUPRA) IS APPLICABLE, THIS
BOOK MAY NOT BE PROVIDED BY THE STATE.  THE OPINION OF COUNSEL,
HOWEVER, IS ONLY "ADVISORY," WE ARE TOLD; MOREOVER, THE RELIGIOUS
ENDORSEMENTS COULD EASILY BE REMOVED BY THE AUTHOR AND PUBLISHER AT THE
NEXT PRINTING. 

/9/  SOME PAROCHIAL SCHOOLS MAY PREFER THOSE TEXTS WHICH ARE
LIBERALLY SPRINKLED WITH RELIGIOUS VIGNETTES.  THIS CREEPING
THE STUDENT CONTINUALLY REMINDED OF THE SECTARIAN ORIENTATION OF HIS
EDUCATION.  IN P. FURLONG, SR. MARGARET, & D. SHARKEY'S AMERICAN
HISTORY TEXT, AMERICA YESTERDAY (1963), FOR EXAMPLE, THE STUDENT IS
INFORMED THAT THE FIRST MASS TO BE SAID IN WHAT IS NOW THE UNITED
STATES WAS IN 1526 NEAR CHESAPEAKE BAY, THAT EIGHT FRENCH MISSIONARIES
TO CANADA IN THE EARLY 1600'S WERE CANONIZED IN 1930, THAT ONE OF THE
MEN WHO SIGNED THE DECLARATION OF INDEPENDENCE AND TWO WHO ATTENDED THE
CONSTITUTIONAL CONVENTION WERE CATHOLIC, AND THAT THE SUPERINTENDENT OF
THE HUDSON BAY COMPANY'S OUTPOST IN THE OREGON COUNTRY CONVERTED TO
CATHOLICISM IN 1842.  AT 26, 73-74, 102, 140, 235.  AND J. SCOTT'S
ADVENTURES IN SCIENCE (1963), IN TEACHING THE ATMOSPHERIC CONDITIONS
PREVAILING AT THE TOP OF MOUNT EVEREST, INFORMS THE CONDITIONS
PREVAILING AT THE TOP OF MOUNT EVEREST, INFORMS THE STUDENT THAT WHEN
SIR EDMUND HILLARY FIRST SCALED THIS PEAK HE PLACED THERE A "TINY
CRUCIFIX" WHICH A BENEDICTINE MONK HAD SUPPLIED.  AT 72. 

AMERICA YESTERDAY, SUPRA, IS ANOTHER EXAMPLE OF A TEXT WRITTEN BY
THE CLERGY (HERE A PRIEST AND NUN TOGETHER WITH ONE LAYMAN) THAT
CONTAINS NO IMPRIMATUR AND NO NIHIL OBSTAT AND IS NOT A DENOMINATIONAL
EDITION.  SEE NN. 5-7. 

/10/  "IN SPAIN EARLY IN 1936 A POPULAR-FRONT ORGANIZATION WON A
VICTORY IN THE NATIONAL ELECTIONS.  THE RESULT WAS A GOVERNMENT MADE UP
OF DISCORDANT POLITICAL ELEMENTS THAT FAILED TO PRESERVE CIVIL ORDER IN
THE COUNTRY.  VIOLENT ANTI-CATHOLICS ATTACKED AND BURNED CHURCHES AND
MONASTERIES, AND THE GOVERNMENT DID NOT EVEN TRY TO PREVENT THESE
CRIMES.  AS A RESULT, SPANIARDS WHO LOVED THEIR COUNTRY AND WERE LOYAL
TO THEIR RELIGION REVOLTED AGAINST THE POPULARFRONT GOVERNMENT OF THE
REPUBLIC.  AN ABLE GENERAL, FRANCISCO FRANCO, PUT HIMSELF AT THE HEAD
OF THE REVOLT, WHICH BEGAN IN JULY 1936." 

/11/  "SPAIN, AT THE END OF WORLD WAR I, WAS A BACKWARD,
POVERTYSTRICKEN MONARCHY.  IN 1931, THE KING RESIGNED AND THE PEOPLE
ESTABLISHED A REPUBLIC.  THE SPANISH TRIED MANY REFORMS, BUT THERE WERE
MANY WHO WANTED TO GO BACK TO THE OLD WAYS AND OLD PRIVILEGES OF THE
MONARCHY.  THOSE WHO WERE RICH WANTED TO HOLD ON TO THEIR PROPERTY. 
THESE PEOPLE THOUGHT THAT FRANCISCO FRANCO, A FASCIST, COULD HELP
THEM. 

"IN 1936, A CIVIL WAR STARTED WHICH SOON CAME TO BE CALLED A 'DRESS
REHEARSAL' FOR WORLD WAR II BECAUSE THE FASCIST COUNTRIES OF ITALY AND
GERMANY SUPPORTED FRANCO AND HIS REBELS.  ON THE OTHER HAND, RUSSIA
SUPPORTED THE LOYALISTS (AS THE ARMIES OF THE REPUBLIC WERE CALLED). 
THE DEMOCRATIC COUNTRIES MIGHT HAVE SUPPORTED THE LOYALISTS, TOO, BUT
FEAR OF COMMUNISM PREVENTED THEM FROM DOING SO.  FRANCO DEFEATED THE
LOYALISTS AND, IN 1938, BECAME DICTATOR OF SPAIN AND TODAY AS EL
CAUDILLO ('THE LEADER') STILL RULES SPAIN WITH AN IRON HAND." 

/12/  THE PURPOSE OF THE PAROCHIAL SCHOOL IN THE BEGINNING IS CLEAR
BEYOND PERADVENTURE.  THE GENERALLY HELD ROMAN CATHOLIC POSITION IN THE
MATTER OF EDUCATION IN PUBLIC AND PAROCHIAL SCHOOLS HAS BEEN WELL
SUMMARIZED BY THE LATE MONSIGNOR JOHN A. RYAN (1869-1945): 

"'AS A MATTER OF FACT, THE STATE MAINTAINS A SYSTEM OF SCHOOLS WHICH
IS NOT COMPLETELY SATISFACTORY TO CATHOLICS, INASMUCH AS NO PLACE IS
GIVEN TO MORALITY AND RELIGION.  SINCE THE CHURCH REALIZES THAT THE
TEACHING OF RELIGION AND INSTRUCTION IN THE SECULAR BRANCHES CANNOT
RIGHTFULLY OR SUCCESSFULLY BE SEPARATED ONE FROM THE OTHER, SHE IS
COMPELLED TO MAINTAIN HER OWN SYSTEM OF SCHOOLS FOR GENERAL EDUCATION
AS WELL AS FOR RELIGIOUS INSTRUCTION . . . .'"  2 A.STOKES, CHURCH AND
STATE IN THE UNITED STATES 654 (1950). 

"THE EDUCATION IN THE PAROCHIAL SCHOOLS FOLLOW IN GENERAL THE
CURRICULUM IN THE PUBLIC SCHOOLS, THE MAIN DIFFERENCES BEING THAT ABOUT
15 PER CENT OF THE TIME IS GIVEN TO RELIGIOUS INSTRUCTION, AND THAT THE
CATHOLIC POINT OF VIEW IS BROUGHT OUT IN THE TREATMENT OF HISTORICAL
AND OTHER SUBJECTS, JUST AS THE PROTESTANT POINT OF VIEW MIGHT BE
EMPHASIZED IN A PROTESTANT SCHOOL."  IBID. 

SOME, HOWEVER, THINK THAT SOME PAROCHIAL SCHOOLS ARE CHANGING THEIR
CHARACTER UNDER PRACTICAL PRESSURES OF EDUCATIONAL COMPETITION.  SEE,
E.G., FLEMING, FORDHAM IS TRYING TO BE CATHOLIC WITH A SMALL "C,"  N.Y.
TIMES MAGAZINE, DEC. 10, 1967, P. 32. 

/13/  ST. JOHN'S I:  A CHRONICLE OF FOLLY, 4 CONTINUUM 223, 233-234
(1966). 

/14/  ID., 234 (EMPHASIS IN ORIGINAL). 

/15/  CF. ADLER V. BOARD OF EDUCATION, 342 U.S. 485; BARSKY V. BOARD
OF REGENTS, 347 U.S. 442. 

/16/  THE PROPORTIONS OF THE CONTEST ARE SUGGESTED IN THE LETTER
DATED NOVEMBER 1, 1967, THAT THE LATE CARDINAL SPELLMAN DIRECTED TO BE
READ AT ALL THE MASSES ON SUNDAY, NOVEMBER 5, 1967, JUST BEFORE THE
VOTE ON A PROPOSED CONSTITUTION THAT WOULD HAVE OPENED WIDE THE DOOR TO
STATE AID TO PAROCHIAL SCHOOLS.  I HAVE ATTACHED THE LETTER AS APPENDIX
B TO THIS OPINION. 

/17/  2 WRITINGS OF JAMES MADISON 186 (HUNT ED. 1901). 

/18/  FOR A RECENT ACCOUNT OF THE EXTENT TO WHICH PUBLIC FUNDS ARE
BEING POURED INTO SECTARIAN SCHOOLS SEE S. REP. NO. 473, 90TH CONG.,
1ST SESS. 9-10 (1967). 

/19/  ONE PAROCHIAL SCHOOL LOBBYIST GROUP HAS URGED CONGRESS THAT IN
ORDER TO AVOID AN ESTABLISHMENT OF SECULARISM IN EDUCATION, FEDERAL
MONIES MUST BE DISTRIBUTED TO ALL THE VARIOUS SECTS WHICH OPERATE
PAROCHIAL SCHOOLS. 

"(THERE IS NO VALUELESS OR NEUTRAL SCHOOL," IT IS ARGUED, AND
EDUCATION AND RELIGION CANNOT BE SEPARATED FROM EACH OTHER.  HEARINGS
ON S. 3 AND H.R. 1198 BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE
ON THE JUDICIARY, 90TH CONG., 2D SESS., AT -- (1968) (STATEMENT OF DR.
FRANCIS J. BROWN, CHAIRMAN NATIONAL ASSOCIATION FOR PERSONAL RIGHTS IN
EDUCATION). 

THE VIEWS EXPRESSED BY MY BROTHER HARLAN IN HIS CONCURRING OPINION
ARE SOMEWHAT SIMILAR.  HIS APPROVAL, ON A CONSTITUTIONAL BASIS, OF
GOVERNMENT AID TO OUR COUNTRY'S CHURCHES "CALCULATED TO ACHIEVE
NONRELIGIOUS PURPOSES OTHERWISE WITHIN THE COMPETENCE OF THE STATE" AND
NOT INVOLVING THE STATE "'SIGNIFICANTLY AND DIRECTLY IN THE REALM OF
THE SECTARIAN'" WOULD SEEM TO PERMIT CONSIDERABLE DIVERSION OF PUBLIC
FUNDS TO THE VARIOUS SECTS.  THE STATE'S "COMPETENCE" IN THE AREAS OF
HEALTH, SAFETY, AND WELFARE OF THE PEOPLE WOULD UNDER THAT VIEW PERMIT
IT TO FUND A CHURCH'S CHARITY PROGRAMS, PAY FOR RENOVATING DILAPIDATED
CHURCH BUILDINGS, AND PAY FOR THE SERVICES AND UPKEEP, SUCH AS
JANITORS' SALARIES AND UTILITY BILLS, NECESSARY TO MAINTAIN CHURCH
BUILDINGS IN SAFE AND HEALTHFUL CONDITION.  INDEED, SHORT OF STATE
PROVIDED PRAYER BOOKS, SACRAMENTAL WINE, AND THE LIKE, CHURCHES COULD,
APPARENTLY, BECOME VIRTUAL STATE DEPENDENCIES. 

SHOULD THAT, UNHAPPILY, COME TO PASS, THEN PERHAPS THE CHURCH WOULD
IN TIME BECOME AN ADMINISTRATIVE ARM OF THE STATE, A GOAL PREDICTED BY
J. GALBRAITH FOR "THE MATURE CORPORATION."  THE NEW INDUSTRIAL STATE
393 (1967). 

THEN THE CIRCLE WOULD BE COMPLETED AND WE WOULD RETURN TO THE POINT
WHERE THE LONG STRUGGLE TO KEEP CHURCH AND STATE SEPARATE FIRST
STARTED. 

SUCH A CONSTITUTIONAL FORM OF GOVERNMENT IS CONCEIVABLE.  BUT
PROPOSALS FOR PUTTING EACH OF THE NATION'S RELIGIOUS SECTS ON THE
PUBLIC PAYROLL SHOULD BE ADDRESSED TO A FEDERAL CONSTITUTIONAL
CONVENTION, SINCE, AS MY BROTHER BLACK SHOWS, SUCH A SCHEME WAS
THOROUGHLY REJECTED IN 1791 WITH THE ADOPTION OF THE FIRST AMENDMENT. 

MR. JUSTICE FORTAS, DISSENTING. 

THE MAJORITY OPINION OF THE COURT UPHOLDS THE NEW YORK STATUTE BY
IGNORING A VITAL ASPECT OF IT.  PUBLIC FUNDS ARE USED TO BUY, FOR
STUDENTS IN SECTARIAN SCHOOLS, TEXTBOOKS WHICH ARE SELECTED AND
PRESCRIBED BY THE SECTARIAN SCHOOLS THEMSELVES.  AS MY BROTHER DOUGLAS
POINTS OUT, DESPITE THE TRANSPARENT CAMOUFLAGE THAT THE BOOKS ARE
FURNISHED TO STUDENTS, THE REALITY IS THAT THEY ARE SELECTED AND THEIR
USE IS PRESCRIBED BY THE SECTARIAN AUTHORITIES.  THE CHILD MUST USE THE
PRESCRIBED BOOK.  HE CANNOT USE A DIFFERENT BOOK PRESCRIBED FOR USE IN
THE PUBLIC SCHOOLS.  THE STATE CANNOT CHOOSE THE BOOK TO BE USED.  IT
IS TRUE THAT THE PUBLIC SCHOOL BOARDS MUST "APPROVE" THE BOOK SELECTED
BY THE SECTARIAN AUTHORITIES; BUT THIS HAS NO REAL SIGNIFICANCE.  THE
PURPOSE OF THESE PROVISIONS IS TO HOLD OUT PROMISE THAT THE BOOKS WILL
BE "SECULAR" (BUT CF. DOUGLAS, J., DISSENTING, ANTE, AT 256, N. 6); BUT
THE FACT REMAINS THAT THE BOOKS ARE CHOSEN BY AND FOR THE SECTARIAN
SCHOOLS. 

IT IS MISLEADING TO SAY, AS THE MAJORITY OPINION DOES, THAT THE NEW
YORK "LAW MERELY MAKES AVAILABLE TO ALL CHILDREN THE BENEFITS OF A
GENERAL PROGRAM TO LEND SCHOOL BOOKS FREE OF CHARGE."  (ANTE, AT 243). 
THIS IS NOT A "GENERAL" PROGRAM.  IT IS A SPECIFIC PROGRAM TO USE STATE
FUNDS TO BUY BOOKS PRESCRIBED BY SECTARIAN SCHOOLS WHICH, IN NEW YORK,
ARE PRIMARILY CATHOLIC, JEWISH, AND LUTHERAN SPONSORED SCHOOLS.  IT
COULD BE CALLED A "GENERAL" PROGRAM ONLY IF THE SCHOOL BOOKS MADE
AVAILABLE TO ALL CHILDREN ARE PRECISELY THE SAME-- THE BOOKS SELECTED
FOR AND USED IN THE PUBLIC SCHOOLS.  BUT THIS PROGRAM IS NOT ONE IN
WHICH ALL CHILDREN ARE TREATED ALIKE, REGARDLESS OF WHERE THEY GO TO
SCHOOL.  THIS PROGRAM, IN ITS UNCONSTITUTIONAL FEATURES, IS HAND
TAILORED TO SATISFY THE SPECIFIC NEEDS OF SECTARIAN SCHOOLS.  CHILDREN
ATTENDING SUCH SCHOOLS ARE GIVEN SPECIAL BOOKS-- BOOKS SELECTED BY THE
MONEY TO AID THOSE SECTARIAN ESTABLISHMENTS? 

IT IS ALSO BESIDE THE POINT, IN MY OPINION, TO "ASSUME," AS THE
MAJORITY OPINION DOES, THAT "BOOKS LOANED TO STUDENTS ARE BOOKS THAT
ARE NOT UNSUITABLE FOR USE IN THE PUBLIC SCHOOLS BECAUSE OF RELIGIOUS
CONTENT."  (ANTE, AT 245.)  THE POINT IS THAT THE BOOKS FURNISHED TO
STUDENTS OF SECTARIAN SCHOOLS ARE SELECTED BY THE RELIGIOUS AUTHORITIES
AND ARE PRESCRIBED BY THEM. 

THIS CASE IS NOT WITHIN THE PRINCIPLE OF EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1 (1947).  APART FROM THE DIFFERENCES BETWEEN
TEXTBOOKS AND BUS RIDES, THE PRESENT STATUTE DOES NOT CALL FOR
EXTENDING TO CHILDREN ATTENDING SECTARIAN SCHOOLS THE SAME SERVICE OR
FACILITY EXTENDED TO CHILDREN IN PUBLIC SCHOOLS.  THIS STATUTE CALLS
FOR FURNISHING SPECIAL, SEPARATE, AND PARTICULAR BOOKS, SPECIALLY,
SEPARATELY, AND PARTICULARLY CHOSEN BY RELIGIOUS SECTS OR THEIR
REPRESENTATIVES FOR USE IN THEIR SECTARIAN SCHOOLS.  THIS IS THE
INFIRMITY, IN MY OPINION.  THIS IS THE FEATURE THAT MAKES IT
IMPOSSIBLE, IN MY VIEW, TO REACH ANY CONCLUSION OTHER THAN THAT THIS
STATUTE IS AN UNCONSTITUTIONAL USE OF PUBLIC FUNDS TO SUPPORT AN
ESTABLISHMENT OF RELIGION. 

THIS IS THE FEATURE OF THE PRESENT STATUTE THAT MAKES IT TOTALLY
INACCURATE TO SUGGEST, AS THE MAJORITY DOES HERE, THAT FURNISHING THESE
SPECIALLY SELECTED BOOKS FOR USE IN SECTARIAN SCHOOLS IS LIKE "PUBLIC
PROVISION OF POLICE AND FIRE PROTECTION, SEWAGE FACILITIES, AND STREETS
AND SIDEWALKS."  (ANTE, AT 242.)  THESE ARE FURNISHED TO ALL ALIKE. 
THEY ARE NOT SELECTED ON THE BASIS OF SPECIFICATION BY A RELIGIOUS
FACILITIES DIFFERENT FROM THOSE ACCORDED MEMBERS OF OTHER RELIGIONS OR
AGNOSTICS OR EVEN ATHEISTS. 

I WOULD REVERSE THE JUDGMENT BELOW. 

MARVIN E. POLLOCK ARGUED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEF WAS ALAN H. LEVINE. 

JEAN M. COON, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR APPELLEE ALLEN.  WITH HER ON THE BRIEF WERE LOUIS J.
LEFKOWITZ, ATTORNEY GENERAL, AND RUTH KESSLER TOCH, SOLICITOR GENERAL. 
PORTER R. CHANDLER ARGUED THE CAUSE FOR APPELLEES ROCK ET AL. WITH HIM
ON THE BRIEF WERE WILLIAM B. BALL, RICHARD E. NOLAN, AND JAMES J.
MACKRELL. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY LEO PFEFFER,
ARNOLD FORSTER, EDWIN J. LUKAS, PAUL HARTMAN, SOL RABKIN, AND JOSEPH B.
ROBINSON FOR THE AMERICAN JEWISH COMMITTEE ET AL., AND BY FRANKLIN C.
SALISBURY FOR PROTESTANTS AND OTHER AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE. 

BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WEISL, LAWRENCE G.
WALLACE, ALAN S. ROSENTHAL, AND ROBERT V. ZENER FOR THE UNITED STATES;
BY HERBERT F. DESIMONE, ATTORNEY GENERAL OF RHODE ISLAND, CHARLES G.
EDWARDS, ASSISTANT ATTORNEY GENERAL, WILLIAM C. SENNETT, ATTORNEY
GENERAL OF PENNSYLVANIA, JAMES L. OAKES, ATTORNEY GENERAL OF VERMONT,
ROBERT C. LONDERHOLM, ATTORNEY GENERAL OF KANSAS, WILLIAM B. SAXBE,
ATTORNEY GENERAL OF OHIO, AND JOE T. PATTERSON, ATTORNEY GENERAL OF
MISSISSIPPI; BY JACK P. F. GREMILLION, ATTORNEY GENERAL, FOR THE STATE
OF LOUISIANA; BY BOSTON E. WITT, ATTORNEY GENERAL, AND MYLES E. FLINT,
ASSISTANT ATTORNEY GENERAL, FOR THE STATE OF NEW MEXICO; BY ETHAN A.
HITCHCOCK FOR THE NATIONAL ASSOCIATION OF INDEPENDENT SCHOOLS, INC.; BY
R. RABER TAYLOR, STUART D. HUBBELL, AND HERMAN CAHN FOR CITIZENS FOR
EDUCATIONAL FREEDOM; BY EDWARD C. MAGUIRE FOR THE NEW YORK STATE AFL
CIO; BY THOMAS J. FORD, EDWARD J. WALSH, JR., AND GEORGE S. EATON FOR
THE LONG ISLAND CONFERENCE OF RELIGIOUS ELEMENTARY AND SECONDARY SCHOOL
ADMINISTRATORS; BY CHARLES M. WHELAN, W. R. CONSEDINE, ALFRED L.
SCANLAN, AND HARMON BURNS FOR THE NATIONAL CATHOLIC EDUCATIONAL
ASSOCIATION ET AL.; BY JULIUS BERMAN FOR THE NATIONAL JEWISH COMMISSION
ON LAW AND PUBLIC AFFAIRS, AND BY JAMES P. BROWN FOR THE LUTHERAN
CHURCH-MISSOURI SYNOD. 
..END :
























GARDNER V. BRODERICK, 392 U.S. 273 


       GARDNER V. BRODERICK, POLICE COMMISSIONER OF THE CITY OF NEW

           YORK, ET AL.

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 635.  ARGUED APRIL 20, 1968.-- DECIDED JUNE 10, 1968. 


APPELLANT, A POLICE OFFICER, WAS SUBPOENAED BY AND APPEARED BEFORE A
GRAND JURY WHICH WAS INVESTIGATING ALLEGED BRIBERY AND CORRUPTION OF
POLICE OFFICERS, AND WAS ADVISED THAT THE GRAND JURY PROPOSED TO
EXAMINE HIM CONCERNING THE PERFORMANCE OF HIS OFFICIAL DUTIES.  HE WAS
ADVISED OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION, BUT WAS ASKED TO
SIGN A "WAIVER OF IMMUNITY" AFTER BEING TOLD THAT HE WOULD BE FIRED IF
HE DID NOT SIGN.  HE REFUSED TO DO SO, WAS GIVEN AN ADMINISTRATIVE
HEARING, AND WAS DISCHARGED SOLELY FOR HIS REFUSAL, PURSUANT TO SEC.
1123 OF THE NEW YORK CITY CHARTER.  THE NEW YORK SUPREME COURT
DISMISSED HIS PETITION FOR REINSTATEMENT AND THE NEW YORK COURT OF
APPEALS AFFIRMED, HOLDING THAT GARRITY V. NEW JERSEY, 385 U.S. 493, WAS
NOT CONTROLLING, AND DISTINGUISHING SPEVACK V. KLEIN, 385 U.S. 511
(BOTH DECIDED AFTER APPELLANT'S DISCHARGE).  HELD:  IF APPELLANT, A
POLICEMAN, HAD REFUSED TO ANSWER QUESTIONS DIRECTLY RELATING TO THE
PERFORMANCE OF HIS OFFICIAL DUTIES, WITHOUT BEING REQUIRED TO WAIVE HIS
IMMUNITY WITH RESPECT TO THE USE OF HIS ANSWERS OR THE FRUITS THEREOF
IN A CRIMINAL PROSECUTION OF HIMSELF, GARRITY, SUPRA, THE PRIVILEGE
AGAINST SELF-INCRIMINATION WOULD NOT HAVE BEEN A BAR TO HIS DISMISSAL. 
HOWEVER, HIS DISMISSAL SOLELY FOR HIS REFUSAL TO WAIVE THE IMMUNITY TO
WHICH HE IS ENTITLED IF HE IS REQUIRED TO TESTIFY DESPITE HIS
CONSTITUTIONAL PRIVILEGE, AND THE NEW YORK CITY CHARTER PROVISION
PURSUANT TO WHICH HE WAS DISMISSED, CANNOT STAND.  PP. 276-279. 

20 N.Y.2D 227, 229 N.E.2D 184, REVERSED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

APPELLANT BROUGHT THIS ACTION IN THE SUPREME COURT OF THE STATE OF NEW
YORK SEEKING REINSTATEMENT AS A NEW YORK CITY PATROLMAN AND BACK PAY. 
HE CLAIMED HE WAS UNLAWFULLY DISMISSED BECAUSE HE REFUSED TO WAIVE HIS
PRIVILEGE AGAINST SELF-INCRIMINATION.  IN AUGUST 1965, PURSUANT TO
SUBPOENA, APPELLANT APPEARED BEFORE A NEW YORK COUNTY GRAND JURY WHICH
WAS INVESTIGATING ALLEGED BRIBERY AND CORRUPTION OF POLICE OFFICERS IN
CONNECTION WITH UNLAWFUL GAMBLING OPERATIONS.  HE WAS ADVISED THAT THE
GRAND JURY PROPOSED TO EXAMINE HIM CONCERNING THE PERFORMANCE OF HIS
OFFICIAL DUTIES.  HE WAS ADVISED OF HIS PRIVILEGE AGAINST SELF
INCRIMINATION, /1/  BUT HE WAS ASKED TO SIGN A "WAIVER OF IMMUNITY"
AFTER BEING TOLD THAT HE WOULD BE FIRED IF HE DID NOT SIGN.  /2/
FOLLOWING HIS REFUSAL, HE WAS GIVEN AN ADMINISTRATIVE HEARING AND WAS
DISCHARGED SOLELY FOR THIS REFUSAL, PURSUANT TO SEC. 1123 OF THE NEW
YORK CITY CHARTER.  /3/ 

THE NEW YORK SUPREME COURT DISMISSED HIS PETITION FOR REINSTATEMENT,
27 APP.DIV.2D 800, 279 N.Y.S.2D 150 (1967), AND THE NEW YORK COURT OF
APPEALS AFFIRMED.  20 N.Y.2D 227, 229 N.E.2D 184 (1967).  WE NOTED
PROBABLE JURISDICTION.  390 U.S. 918 (1968). 

OUR DECISIONS ESTABLISH BEYOND DISPUTE THE BREADTH OF THE PRIVILEGE
TO REFUSE TO RESPOND TO QUESTIONS WHEN THE RESULT MAY BE SELF
INCRIMINATORY, AND THE NEED FULLY TO IMPLEMENT ITS GUARANTY.  SEE
SPEVACK V. KLEIN, 385 U.S. 511 (1967); COUNSELMAN V. HITCHCOCK, 142
U.S. 547, 585-586 (1892); ALBERTSON V. SACB, 382 U.S. 70, 80 (1965). 
THE PRIVILEGE IS APPLICABLE TO STATE AS WELL AS FEDERAL PROCEEDINGS. 
MALLOY V. HOGAN, 378 U.S. 1 (1964); MURPHY V. WATERFRONT COMMISSION,
378 U.S. 52 (1964).  THE PRIVILEGE MAY BE WAIVED IN APPROPRIATE
CIRCUMSTANCES IF THE WAIVER IS KNOWINGLY AND VOLUNTARILY MADE.  ANSWERS
MAY BE COMPELLED REGARDLESS OF THE PRIVILEGE IF THERE IS IMMUNITY FROM
FEDERAL AND STATE USE OF THE COMPELLED TESTIMONY OR ITS FRUITS IN
CONNECTION WITH A CRIMINAL PROSECUTION AGAINST THE PERSON TESTIFYING. 
COUNSELMAN V. HITCHCOCK, SUPRA, AT 585-586; MURPHY V. WATERFRONT
COMMISSION, SUPRA, AT 79. 

THE QUESTION PRESENTED IN THE PRESENT CASE IS WHETHER A POLICEMAN
WHO REFUSES TO WAIVE THE PROTECTIONS WHICH THE PRIVILEGE GIVES HIM MAY
BE DISMISSED FROM OFFICE BECAUSE OF THAT REFUSAL. 

ABOUT A YEAR AND A HALF AFTER NEW YORK CITY DISCHARGED PETITIONER
FOR HIS REFUSAL TO WAIVE THIS IMMUNITY, WE DECIDED GARRITY V. NEW
JERSEY, 385 U.S. 493 (1967).  IN THAT CASE, WE HELD THAT WHEN A
POLICEMAN HAD BEEN COMPELLED TO TESTIFY BY THE THREAT THAT OTHERWISE HE
WOULD BE REMOVED FROM OFFICE, THE TESTIMONY THAT HE GAVE COULD NOT BE
USED AGAINST HIM IN A SUBSEQUENT PROSECUTION.  GARRITY HAD NOT SIGNED A
WAIVER OF IMMUNITY AND NO IMMUNITY STATUTE WAS APPLICABLE IN THE
CIRCUMSTANCES.  OUR HOLDING WAS SUMMARIZED IN THE FOLLOWING STATEMENT
(AT 500): 

"WE NOW HOLD THE PROTECTION OF THE INDIVIDUAL UNDER THE FOURTEENTH
AMENDMENT AGAINST COERCED STATEMENTS PROHIBITS USE IN SUBSEQUENT
CRIMINAL PROCEEDINGS OF STATEMENTS OBTAINED UNDER THREAT OF REMOVAL
FROM OFFICE, AND THAT IT EXTENDS TO ALL, WHETHER THEY ARE POLICEMEN OR
OTHER MEMBERS OF OUR BODY POLITIC." 

THE NEW YORK COURT OF APPEALS CONSIDERED THAT GARRITY DID NOT
CONTROL THE PRESENT CASE.  IT IS TRUE THAT GARRITY RELATED TO THE
ATTEMPTED USE OF COMPELLED TESTIMONY.  IT DID NOT INVOLVE THE PRECISE
QUESTION WHICH IS PRESENTED HERE:  NAMELY, WHETHER A STATE MAY
DISCHARGE AN OFFICER FOR REFUSING TO WAIVE A RIGHT WHICH THE
CONSTITUTION GUARANTEES TO HIM.  THE NEW YORK COURT OF APPEALS ALSO
DISTINGUISHED OUR POST-GARRITY DECISION IN SPEVACK V. KLEIN, SUPRA.  IN
SPEVACK, WE RULED THAT A LAWYER COULD NOT BE DISBARRED SOLELY BECAUSE
HE REFUSED TO TESTIFY AT A DISCIPLINARY PROCEEDING ON THE GROUND THAT
HIS TESTIMONY WOULD TEND TO INCRIMINATE HIM.  THE COURT OF APPEALS
CONCLUDED THAT SPEVACK DOES NOT CONTROL THE PRESENT CASE BECAUSE
DIFFERENT CONSIDERATIONS APPLY IN THE CASE OF A PUBLIC OFFICIAL SUCH AS
A POLICEMAN.  A LAWYER, IT STATED, ALTHOUGH LICENSED BY THE STATE IS
NOT AN EMPLOYEE.  THIS DISTINCTION IS NOW URGED UPON US.  IT IS ARGUED
THAT ALTHOUGH A LAWYER COULD NOT CONSTITUTIONALLY BE CONFRONTED WITH
HOBSON'S CHOICE BETWEEN SELF-INCRIMINATION AND FORFEITING HIS MEANS OF
LIVELIHOOD, THE SAME PRINCIPLE SHOULD NOT PROTECT A POLICEMAN.  UNLIKE
THE LAWYER, HE IS DIRECTLY, IMMEDIATELY, AND ENTIRELY RESPONSIBLE TO
THE CITY OR STATE WHICH IS HIS EMPLOYER.  HE OWES HIS ENTIRE LOYALTY TO
IT.  HE HAS NO OTHER "CLIENT" OR PRINCIPAL.  HE IS A TRUSTEE OF THE
PUBLIC INTEREST, BEARING THE BURDEN OF GREAT AND TOTAL RESPONSIBILITY
TO HIS PUBLIC EMPLOYER.  UNLIKE THE LAWYER WHO IS DIRECTLY RESPONSIBLE
TO HIS CLIENT, THE POLICEMAN IS EITHER RESPONSIBLE TO THE STATE OR TO
NO ONE.  /4/ 

WE AGREE THAT THESE FACTORS DIFFERENTIATE THE SITUATIONS.  IF
APPELLANT, A POLICEMAN, HAD REFUSED TO ANSWER QUESTIONS SPECIFICALLY,
DIRECTLY, AND NARROWLY RELATING TO THE PERFORMANCE OF HIS OFFICIAL
DUTIES, /5/  WITHOUT BEING REQUIRED TO WAIVE HIS IMMUNITY WITH RESPECT
TO THE USE OF HIS ANSWERS OR THE FRUITS THEREOF IN A CRIMINAL
PROSECUTION OF HIMSELF, GARRITY V. NEW JERSEY, SUPRA, THE PRIVILEGE
AGAINST SELF-INCRIMINATION WOULD NOT HAVE BEEN A BAR TO HIS DISMISSAL. 

THE FACTS OF THIS CASE, HOWEVER, DO NOT PRESENT THIS ISSUE.  HERE,
PETITIONER WAS SUMMONED TO TESTIFY BEFORE A GRAND JURY IN AN
INVESTIGATION OF ALLEGED CRIMINAL CONDUCT.  HE WAS DISCHARGED FROM
OFFICE, NOT FOR FAILURE TO ANSWER RELEVANT QUESTIONS ABOUT HIS OFFICIAL
DUTIES, BUT FOR REFUSAL TO WAIVE A CONSTITUTIONAL RIGHT.  HE WAS
DISMISSED FOR FAILURE TO RELINQUISH THE PROTECTIONS OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION.  THE CONSTITUTION OF NEW YORK STATE AND THE
CITY CHARTER BOTH EXPRESSLY PROVIDED THAT HIS FAILURE TO DO SO, AS WELL
AS HIS FAILURE TO TESTIFY, WOULD RESULT IN DISMISSAL FROM HIS JOB.  HE
WAS DISMISSED SOLELY FOR HIS REFUSAL TO WAIVE THE IMMUNITY TO WHICH HE
IS ENTITLED IF HE IS REQUIRED TO TESTIFY DESPITE HIS CONSTITUTIONAL
PRIVILEGE.  GARRITY V. NEW JERSEY, SUPRA. 

WE NEED NOT SPECULATE WHETHER, IF APPELLANT HAD EXECUTED THE WAIVER
OF IMMUNITY IN THE CIRCUMSTANCES, THE EFFECT OF OUR SUBSEQUENT DECISION
IN GARRITY V. NEW JERSEY, SUPRA, WOULD HAVE BEEN TO NULLIFY THE EFFECT
OF THE WAIVER.  NEW YORK CITY DISCHARGED HIM FOR REFUSAL TO EXECUTE A
DOCUMENT PURPORTING TO WAIVE HIS CONSTITUTIONAL RIGHTS AND TO PERMIT
PROSECUTION OF HIMSELF ON THE BASIS OF HIS COMPELLED TESTIMONY. 
PETITIONER COULD NOT HAVE ASSUMED-- AND CERTAINLY HE WAS NOT REQUIRED
TO ASSUME-- THAT HE WAS BEING ASKED TO DO AN IDLE ACT OF NO LEGAL
EFFECT.  IN ANY EVENT, THE MANDATE OF THE GREAT PRIVILEGE AGAINST SELF
INCRIMINATION DOES NOT TOLERATE THE ATTEMPT, REGARDLESS OF ITS ULTIMATE
EFFECTIVENESS, TO COERCE A WAIVER OF THE IMMUNITY IT CONFERS ON PENALTY
OF THE LOSS OF EMPLOYMENT.  IT IS CLEAR THAT PETITIONER'S TESTIMONY WAS
DEMANDED BEFORE THE GRAND JURY IN PART SO THAT IT MIGHT BE USED TO
PROSECUTE HIM, AND NOT SOLELY FOR THE PURPOSE OF SECURING AN ACCOUNTING
OF HIS PERFORMANCE OF HIS PUBLIC TRUST.  IF THE LATTER HAD BEEN THE
ONLY PURPOSE, THERE WOULD HAVE BEEN NO REASON TO SEEK TO COMPEL
PETITIONER TO WAIVE HIS IMMUNITY. 

PROPER REGARD FOR THE HISTORY AND MEANING OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION, /6/  APPLICABLE TO THE STATES UNDER OUR DECISION IN
MALLOY V. HOGAN, 378 U.S. 1 (1964), AND FOR THE DECISIONS OF THIS
COURT, /7/  DICTATE THE CONCLUSION THAT THE PROVISION OF THE NEW YORK
CITY CHARTER PURSUANT TO WHICH PETITIONER WAS DISMISSED CANNOT STAND. 
ACCORDINGLY, THE JUDGMENT IS

            REVERSED. 

/1/  THE ASSISTANT DISTRICT ATTORNEY SAID TO APPELLANT: "YOU
UNDERSTAND . . . THAT UNDER THE CONSTITUTION OF THE UNITED STATES, AS
WELL AS THE CONSTITUTION OF NEW YORK, NO ONE CAN BE COMPELLED TO
TESTIFY AGAINST HIMSELF, AND THAT HE HAS A RIGHT, THE ABSOLUTE RIGHT TO
REFUSE TO ANSWER ANY QUESTIONS THAT WOULD TEND TO INCRIMINATE HIM?" 

/2/  APPELLANT WAS TOLD: "YOU UNDERSTAND . . . THAT UNDER THE
CONSTITUTION OF NEW YORK, AS WELL AS THE CHARTER OF THE CITY OF NEW
YORK, . . . A PUBLIC OFFICER, WHICH INCLUDES A POLICE OFFICER, WHEN
CALLED BEFORE A GRAND JURY TO ANSWER QUESTIONS CONCERNING THE CONDUCT
OF HIS PUBLIC OFFICE AND THE PERFORMANCE OF HIS DUTIES IS REQUIRED TO
SIGN A WAIVER OF IMMUNITY IF HE WISHES TO RETAIN THAT PUBLIC OFFICE?" 
THE DOCUMENT APPELLANT WAS ASKED TO SIGN WAS PHRASED AS FOLLOWS: "I . .
. DO HEREBY WAIVE ALL BENEFITS, PRIVILEGES, RIGHTS AND IMMUNITY WHICH I
WOULD OTHERWISE OBTAIN FROM INDICTMENT, PROSECUTION, AND PUNISHMENT FOR
OR ON ACCOUNT OF, REGARDING OR RELATING TO ANY MATTER, TRANSACTION OR
THINS, CONCERNING THE CONDUCT OF MY OFFICE OR THE PERFORMANCE OF MY
OFFICIAL DUTIES, OR THE PROPERTY, GOVERNMENT OR AFFAIRS OF THE STATE OF
NEW YORK OR OF ANY COUNTY INCLUDED WITHIN ITS TERRITORIAL LIMITS, OR
THE NOMINATION, ELECTION, APPOINTMENT OR OFFICIAL CONDUCT OF ANY
OFFICER OF THE CITY OR OF ANY SUCH COUNTY, CONCERNING ANY OF WHICH
MATTERS, TRANSACTIONS OR THINGS I MAY TESTIFY OR PRODUCE EVIDENCE
DOCUMENTARY OR OTHERWISE, BEFORE THE (BLANK) GRAND JURY IN THE COUNTY
OF NEW YORK, IN THE INVESTIGATION BEING CONDUCTED BY SAID GRAND JURY." 

/3/  THAT SECTION PROVIDES: "IF ANY COUNCILMAN OR OTHER OFFICER OR
EMPLOYEE OF THE CITY SHALL, AFTER LAWFUL NOTICE OR PROCESS, WILFULLY
REFUSE OR FAIL TO APPEAR BEFORE ANY COURT OR JUDGE, ANY LEGISLATIVE
COMMITTEE, OR ANY OFFICER, BOARD OR BODY AUTHORIZED TO CONDUCT ANY
HEARING OR INQUIRY, OR HAVING APPEARED SHALL REFUSE TO TESTIFY OR TO
ANSWER ANY QUESTION REGARDING THE PROPERTY, GOVERNMENT OR AFFAIRS OF
THE CITY OR OF ANY COUNTY INCLUDED WITHIN ITS TERRITORIAL LIMITS, OR
REGARDING THE NOMINATION, ELECTION, APPOINTMENT OR OFFICIAL CONDUCT OF
ANY OFFICER OR EMPLOYEE OF THE CITY OR OF ANY SUCH COUNTY, ON THE
GROUND THAT HIS ANSWER WOULD TEND TO INCRIMINATE HIM, OR SHALL REFUSE
TO WAIVE IMMUNITY FROM PROSECUTION ON ACCOUNT OF ANY SUCH MATTER IN
RELATION TO WHICH HE MAY BE ASKED TO TESTIFY UPON ANY SUCH HEARING OR
INQUIRY, HIS TERM OR TENURE OF OFFICE OR EMPLOYMENT SHALL TERMINATE AND
SUCH OFFICE OR EMPLOYMENT SHALL BE VACANT, AND HE SHALL NOT BE ELIGIBLE
TO ELECTION OR APPOINTMENT TO ANY OFFICE OR EMPLOYMENT UNDER THE CITY
OR ANY AGENCY." 

PERSON SHALL BE . . . COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS
AGAINST HIMSELF, PROVIDING, THAT ANY PUBLIC OFFICER WHO, UPON BEING
CALLED BEFORE A GRAND JURY TO TESTIFY CONCERNING THE CONDUCT OF HIS
PRESENT OFFICE . . . OR THE PERFORMANCE OF HIS OFFICIAL DUTIES . . .
REFUSES TO SIGN A WAIVER OF IMMUNITY AGAINST SUBSEQUENT CRIMINAL
PROSECUTION, OR TO ANSWER ANY RELEVANT QUESTION CONCERNING SUCH MATTERS
BEFORE SUCH GRAND JURY, SHALL BY VIRTUE OF SUCH REFUSAL, BE
DISQUALIFIED FROM HOLDING ANY OTHER PUBLIC OFFICE OR PUBLIC EMPLOYMENT
FOR A PERIOD OF FIVE YEARS . . . AND SHALL BE REMOVED FROM HIS PRESENT
OFFICE BY THE APPROPRIATE AUTHORITY OR SHALL FORFEIT HIS PRESENT OFFICE
AT THE SUIT OF THE ATTORNEY-GENERAL." 

/4/  CF. SPEVACK V. KLEIN, SUPRA, AT 519-520 (CONCURRING IN
JUDGMENT). 

/5/  THE STATEMENTS IN MY SEPARATE OPINION IN SPEVACK V. KLEIN,
SUPRA, AT 519-520, TO WHICH THE NEW YORK COURT OF APPEALS REFERRED, ARE
EXPRESSLY LIMITED TO SITUATIONS OF THIS KIND. 

/6/  SEE MIRANDA V. ARIZONA, 384 U.S. 436, 458-466 (1966), AND
AUTHORITIES CITED THEREIN. 

/7/  SEE, E.G., GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965); MALLOY
V. HOGAN, SUPRA. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

(FOR OPINION OF MR. JUSTICE HARLAN, CONCURRING IN THE RESULT, SEE
POST, P. 285.) 

RONALD PODOLSKY ARGUED THE CAUSE AND FILED BRIEFS FOR APPELLANT. 

J. LEE RANKIN ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF
WERE NORMAN REDLICH, STANLEY BUCHSBAUM, AND ROBERT T. HARTMANN. 

MICHAEL J. SILVERBERG FILED A BRIEF FOR THE PATROLMEN'S BENEVOLENT
ASSOCIATION OF THE CITY OF NEW YORK, INC., AS AMICUS CURIAE, URGING
REVERSAL. 
..END :
























SANITATION MEN V. SANITATION COMM'R., 392 U.S. 280 


       UNIFORMED SANITATION MEN ASSN., INC., ET AL. V. COMMISSIONER

           OF SANITATION OF THE CITY OF NEW YORK ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 823.  ARGUED MAY 1, 1968.-- DECIDED JUNE 10, 1968. 


IN CONNECTION WITH AN INVESTIGATION OF IMPROPER ACTIVITIES BY NEW
YORK CITY SANITATION EMPLOYEES THE INDIVIDUAL PETITIONERS, FIFTEEN
SANITATION EMPLOYEES, WERE SUMMONED BEFORE THE COMMISSIONER OF
INVESTIGATION AND ADVISED THAT, IF THEY REFUSED TO TESTIFY WITH RESPECT
TO THEIR OFFICIAL CONDUCT ON THE GROUND OF SELF-INCRIMINATION, THEIR
EMPLOYMENT WOULD TERMINATE, IN ACCORDANCE WITH SEC. 1123 OF THE CITY
CHARTER.  TWELVE ASSERTED THE PRIVILEGE AGAINST SELF-INCRIMINATION AND
REFUSED TO TESTIFY, AFTER BEING TOLD THAT THEIR ANSWERS COULD BE USED
AGAINST THEM IN SUBSEQUENT PROCEEDINGS.  THEY WERE DISMISSED ON THE
BASIS OF THAT REFUSAL.  THREE EMPLOYEES WHO ANSWERED THE QUESTIONS AND
DENIED THE CHARGES MADE AGAINST THEM WERE SUSPENDED, AND THEN CALLED
BEFORE A GRAND JURY AND ASKED TO SIGN WAIVERS OF IMMUNITY.  UPON THEIR
REFUSAL TO DO SO THEY WERE DISMISSED ON THE GROUND THAT THEY VIOLATED
SEC. 1123 BY REFUSING TO SIGN THE WAIVERS.  THE FEDERAL DISTRICT COURT
DISMISSED PETITIONERS' ACTION FOR A DECLARATORY JUDGMENT AND INJUNCTIVE
RELIEF BASED ON THE ALLEGED WRONGFUL DISCHARGE IN VIOLATION OF THEIR
CONSTITUTIONAL RIGHTS, AND THE COURT OF APPEALS AFFIRMED.  HELD:
PETITIONERS AS PUBLIC EMPLOYEES ARE ENTITLED, LIKE ALL OTHER PERSONS,
TO THE BENEFIT OF THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION AND THEY MAY NOT BE FACED WITH PROCEEDINGS WHICH, AS
HERE, PRESENTED THEM WITH A CHOICE BETWEEN SURRENDERING THEIR
CONSTITUTIONAL RIGHTS OR THEIR JOBS.  GARDNER V. BRODERICK, ANTE, P.
273.  PUBLIC EMPLOYEES ARE SUBJECT TO DISMISSAL IF THEY REFUSE TO
ACCOUNT FOR THE PERFORMANCE OF THEIR PUBLIC TRUST AFTER PROPER
PROCEEDINGS WHICH DO NOT INVOLVE AN ATTEMPT TO COERCE THEM TO
RELINQUISH THEIR CONSTITUTIONAL RIGHTS.  PP. 283-285. 

383 F.2D 364, REVERSED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THE INDIVIDUAL PETITIONERS ARE 15 EMPLOYEES OF THE DEPARTMENT OF
SANITATION OF NEW YORK CITY.  CLAIMING THEY WERE WRONGFULLY DISMISSED
FROM EMPLOYMENT IN VIOLATION OF THEIR RIGHTS UNDER THE UNITED STATES
CONSTITUTION, THEY COMMENCED THIS ACTION FOR DECLARATORY JUDGMENT AND
INJUNCTIVE RELIEF IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK.  THAT COURT DISMISSED THE ACTION AND THE COURT OF
APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  383 F.2D 364 (1967).  WE
GRANTED CERTIORARI.  390 U.S. 919 (1968). 

SOMETIME IN 1966, THE COMMISSIONER OF INVESTIGATION OF NEW YORK CITY
/1/  BEGAN AN INVESTIGATION OF CHARGES THAT EMPLOYEES OF THE DEPARTMENT
OF SANITATION WERE NOT CHARGING PRIVATE CARTMEN PROPER FEES FOR USE OF
CERTAIN CITY FACILITIES AND WERE DIVERTING TO THEMSELVES THE PROCEEDS
OF FEES THAT THEY DID CHARGE.  THE COMMISSIONER OBTAINED AN ORDER FROM
THE SUPREME COURT IN NEW YORK COUNTY AUTHORIZING HIM TO TAP A TELEPHONE
LEASED BY THE DEPARTMENT OF SANITATION FOR THE TRANSACTION OF OFFICIAL
BUSINESS AT THE CITY FACILITIES IN QUESTION.  /2/ 

IN NOVEMBER 1966 EACH OF THE PETITIONERS WAS SUMMONED BEFORE THE
COMMISSIONER.  EACH WAS ADVISED THAT, IN ACCORDANCE WITH SEC. 1123 OF
THE NEW YORK CITY CHARTER, IF HE REFUSED TO TESTIFY WITH RESPECT TO HIS
OFFICIAL CONDUCT OR THAT OF ANY OTHER CITY EMPLOYEE ON THE GROUNDS OF
SELF-INCRIMINATION, HIS EMPLOYMENT AND ELIGIBILITY FOR OTHER CITY
EMPLOYMENT WOULD TERMINATE.  /3/ 

TWELVE OF THE PETITIONERS, ASSERTING THE CONSTITUTIONAL PRIVILEGE
AGAINST SELF-INCRIMINATION, REFUSED TO TESTIFY.  AFTER A DISCIPLINARY
HEARING HELD PURSUANT TO SEC. 75 OF THE NEW YORK CIVIL SERVICE LAW,
THEY WERE DISMISSED BY THE COMMISSIONER OF SANITATION ON THE EXPLICIT
GROUND PROVIDED BY SEC. 1123 OF THE CITY CHARTER THAT THEY HAD REFUSED
TO TESTIFY. 

THREE OF THE PETITIONERS ANSWERED THE QUESTIONS PUT TO THEM, DENYING
THE CHARGES MADE.  THEY WERE THEREAFTER SUSPENDED BY THE COMMISSIONER
OF SANITATION ON THE BASIS OF "INFORMATION RECEIVED FROM THE
COMMISSIONER OF INVESTIGATION CONCERNING IRREGULARITIES ARISING OUT OF
(THEIR) EMPLOYMENT IN THE DEPARTMENT OF SANITATION."  SUBSEQUENTLY,
THEY WERE SUMMONED BEFORE A GRAND JURY AND ASKED TO SIGN WAIVERS OF
IMMUNITY.  THEY REFUSED.  ADMINISTRATIVE HEARINGS WERE HELD PURSUANT TO
SEC. 75 OF THE CIVIL SERVICE LAW, AND THEY WERE DISMISSED FROM
EMPLOYMENT ON THE SOLE GROUND THAT THEY HAD VIOLATED SEC. 1123 OF THE
CITY CHARTER BY REFUSING TO SIGN WAIVERS OF IMMUNITY.  WE CONSIDER ONLY
THE DISMISSAL, RATHER THAN THE SUSPENSION, OF THESE PETITIONERS. 

RELYING UPON THE DECISION OF THE NEW YORK COURT OF APPEALS IN
GARDNER V. BRODERICK, 20 N.Y.2D 227, 229 N.E.2D 184 (1967) (REVERSED
THIS DAY, ANTE, P. 273), THE COURT OF APPEALS FOR THE SECOND CIRCUIT
HELD THAT THE DISMISSAL OF PETITIONERS DID NOT OFFEND THE FEDERAL
CONSTITUTION.  FOR THE REASONS WHICH WE ELABORATE IN OUR OPINION
REVERSING THE NEW YORK COURT'S DECISION IN GARDNER V. BRODERICK, SUPRA,
WE HOLD THAT THE COURT OF APPEALS ERRED. 

PETITIONERS WERE NOT DISCHARGED MERELY FOR REFUSAL TO ACCOUNT FOR
THEIR CONDUCT AS EMPLOYEES OF THE CITY.  THEY WERE DISMISSED FOR
INVOKING AND REFUSING TO WAIVE THEIR CONSTITUTIONAL RIGHT AGAINST SELF
INCRIMINATION.  THEY WERE DISCHARGED FOR REFUSAL TO EXPOSE THEMSELVES
TO CRIMINAL PROSECUTION BASED ON TESTIMONY WHICH THEY WOULD GIVE UNDER
COMPULSION, DESPITE THEIR CONSTITUTIONAL PRIVILEGE.  THREE WERE ASKED
TO SIGN WAIVERS OF IMMUNITY BEFORE THE GRAND JURY.  TWELVE WERE TOLD
THAT THEIR ANSWERS TO QUESTIONS PUT TO THEM BY THE COMMISSIONER OF
INVESTIGATION COULD BE USED AGAINST THEM IN SUBSEQUENT PROCEEDINGS, /4/
AND WERE DISCHARGED FOR REFUSAL TO ANSWER THE QUESTIONS ON THIS
BASIS.  GARRITY V. NEW JERSEY, 385 U.S. 493 (1967), IN WHICH WE HELD
THAT TESTIMONY COMPELLED BY THREAT OF DISMISSAL FROM EMPLOYMENT COULD
NOT BE USED IN A CRIMINAL PROSECUTION OF THE WITNESS, HAD NOT BEEN
DECIDED WHEN THESE 12 PETITIONERS WERE PUT TO THEIR HAZARDOUS CHOICE. 
IN ANY EVENT, WE NEED NOT DECIDE WHETHER THESE PETITIONERS WOULD HAVE
EFFECTIVELY WAIVED THIS CONSTITUTIONAL PROTECTION IF THEY HAD TESTIFIED
FOLLOWING THE WARNING THAT THEIR TESTIMONY COULD BE USED AGAINST THEM. 
THEY WERE ENTITLED TO REMAIN SILENT BECAUSE IT WAS CLEAR THAT NEW YORK
WAS SEEKING, NOT MERELY AN ACCOUNTING OF THEIR USE OR ABUSE OF THEIR
PUBLIC TRUST, BUT TESTIMONY FROM THEIR OWN LIPS WHICH, DESPITE THE
CONSTITUTIONAL PROHIBITION, COULD BE USED TO PROSECUTE THEM
CRIMINALLY.  /5/ 

AS WE STATED IN GARDNER V. BRODERICK, SUPRA, IF NEW YORK HAD
DEMANDED THAT PETITIONERS ANSWER QUESTIONS SPECIFICALLY, DIRECTLY, AND
NARROWLY RELATING TO THE PERFORMANCE OF THEIR OFFICIAL DUTIES ON PAIN
OF DISMISSAL FROM PUBLIC EMPLOYMENT WITHOUT REQUIRING RELINQUISHMENT OF
THE BENEFITS OF THE CONSTITUTIONAL PRIVILEGE, AND IF THEY HAD REFUSED
TO DO SO, THIS CASE WOULD BE ENTIRELY DIFFERENT.  IN SUCH A CASE, THE
EMPLOYEE'S RIGHT TO IMMUNITY AS A RESULT OF HIS COMPELLED TESTIMONY
WOULD NOT BE AT STAKE.  BUT HERE THE PRECISE AND PLAIN IMPACT OF THE
PROCEEDINGS AGAINST PETITIONERS AS WELL AS OF SEC. 1123 OF THE NEW YORK
CHARTER WAS TO PRESENT THEM WITH A CHOICE BETWEEN SURRENDERING THEIR
CONSTITUTIONAL RIGHTS OR THEIR JOBS.  PETITIONERS AS PUBLIC EMPLOYEES
ARE ENTITLED, LIKE ALL OTHER PERSONS, TO THE BENEFIT OF THE
CONSTITUTION, INCLUDING THE PRIVILEGE AGAINST SELF-INCRIMINATION. 
GARDNER V. BRODERICK, SUPRA; GARRITY V. NEW JERSEY, SUPRA.  CF. MURPHY
V. WATERFRONT COMMISSION, 378 U.S. 52, AT 79 (1964).  AT THE SAME TIME,
PETITIONERS, BEING PUBLIC EMPLOYEES, SUBJECT THEMSELVES TO DISMISSAL IF
THEY REFUSE TO ACCOUNT FOR THEIR PERFORMANCE OF THEIR PUBLIC TRUST,
AFTER PROPER PROCEEDINGS, WHICH DO NOT INVOLVE AN ATTEMPT TO COERCE
THEM TO RELINQUISH THEIR CONSTITUTIONAL RIGHTS. 

ACCORDINGLY, THE JUDGMENT IS REVERSED.  /6/

              REVERSED. 

/1/  SECTION 803, SUBD. 2, OF THE NEW YORK CITY CHARTER PROVIDES
THAT THE COMMISSIONER "(IS AUTHORIZED AND EMPOWERED TO MAKE ANY STUDY
OR INVESTIGATION WHICH IN HIS OPINION MAY BE IN THE BEST INTERESTS OF
THE CITY, INCLUDING BUT NOT LIMITED TO INVESTIGATIONS OF THE AFFAIRS,
FUNCTIONS, ACCOUNTS, METHODS, PERSONNEL OR EFFICIENCY OF ANY AGENCY." 

/2/  THIS ORDER WAS PURSUANT TO SEC. 813-A OF THE CODE OF CRIMINAL
PROCEDURE OF NEW YORK.  SEE BERGER V. NEW YORK, 388 U.S. 41 (1967). 

/3/  SECTION 1123 OF THE NEW YORK CITY CHARTER PROVIDES: "IF ANY
COUNCILMAN OR OTHER OFFICER OR EMPLOYEE OF THE CITY SHALL, AFTER LAWFUL
NOTICE OR PROCESS, WILFULLY REFUSE OR FAIL TO APPEAR BEFORE ANY COURT
OR JUDGE, ANY LEGISLATIVE COMMITTEE, OR ANY OFFICER, BOARD OR BODY
AUTHORIZED TO CONDUCT ANY HEARING OR INQUIRY, OR HAVING APPEARED SHALL
REFUSE TO TESTIFY OR TO ANSWER ANY QUESTION REGARDING THE PROPERTY,
GOVERNMENT OR AFFAIRS OF THE CITY OR OF ANY COUNTY INCLUDED WITHIN ITS
TERRITORIAL LIMITS, OR REGARDING THE NOMINATION, ELECTION, APPOINTMENT
OR OFFICIAL CONDUCT OF ANY OFFICER OR EMPLOYEE OF THE CITY OR OF ANY
SUCH COUNTY, ON THE GROUND THAT HIS ANSWER WOULD TEND TO INCRIMINATE
HIM, OR SHALL REFUSE TO WAIVE IMMUNITY FROM PROSECUTION ON ACCOUNT OF
ANY SUCH MATTER IN RELATION TO WHICH HE MAY BE ASKED TO TESTIFY UPON
ANY SUCH HEARING OR INQUIRY, HIS TERM OR TENURE OF OFFICE OR EMPLOYMENT
SHALL TERMINATE AND SUCH OFFICE OR EMPLOYMENT SHALL BE VACANT, AND HE
SHALL NOT BE ELIGIBLE TO ELECTION OR APPOINTMENT TO ANY OFFICE OR
EMPLOYMENT UNDER THE CITY OR ANY AGENCY." 

/4/  THE COMMISSIONER SAID: "MR. (NAME OF WITNESS), THIS IS A
PRIVATE HEARING BEING CONDUCTED BY THE DEPARTMENT OF INVESTIGATION OF
THE CITY OF NEW YORK, PURSUANT TO CHAPTER 34, OF THE NEW YORK CITY
CHARTER.  THE INVESTIGATION IN WHICH YOU ARE ABOUT TO TESTIFY RELATES
PARTICULARLY TO THE AFFAIRS, FUNCTIONS, ACCOUNTS, METHODS, PERSONNEL
AND EFFICIENCY OF THE DEPARTMENT OF SANITATION OF THE CITY OF NEW
YORK.  I WISH TO ADVISE YOU THAT YOU HAVE ALL THE RIGHTS AND PRIVILEGES
GUARANTEED BY THE LAWS OF THE STATE OF NEW YORK AND THE CONSTITUTIONS
OF THIS STATE AND OF THE UNITED STATES, INCLUDING THE RIGHT TO REMAIN
SILENT AND THE RIGHT NOT TO BE COMPELLED TO BE A WITNESS AGAINST
YOURSELF.  I WISH FURTHER TO ADVISE YOU THAT ANYTHING YOU SAY CAN BE
USED AGAINST YOU IN A COURT OF LAW.  YOU HAVE THE RIGHT TO HAVE AN
ATTORNEY PRESENT AT THIS HEARING, IF YOU WISH, AND I UNDERSTAND THAT
YOU ARE REPRESENTED BY COUNSEL IN THE PERSON OF (NAME OF ATTORNEY), IS
THAT CORRECT?" 

/5/  AS WE NOTED IN GARDNER V. BRODERICK, SUPRA, AT 278-279, THE
POSSIBLE INEFFECTIVENESS OF THIS WAIVER DOES NOT CHANGE THE FACT THAT
THE STATE ATTEMPTED TO FORCE PETITIONERS, UPON PENALTY OF LOSS OF
EMPLOYMENT, TO RELINQUISH A RIGHT GUARANTEED THEM BY THE CONSTITUTION. 

/6/  IN VIEW OF OUR DISPOSITION OF THE CASE, WE DO NOT REACH THE
ISSUES RAISED BY PETITIONERS WITH RESPECT TO THE WIRETAP. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING IN
THE RESULT.  /1/ 

GIVEN IN COMBINATION THE DECISIONS IN SPEVACK V. KLEIN, 385 U.S.
511, AND GARRITY V. NEW JERSEY, 385 U.S. 493, I CAN FIND NO SOLIDLY
ACCEPTABLE COURSE FOR ME TO TAKE IN THESE CASES OTHER THAN TO CONCUR IN
THE JUDGMENTS RENDERED BY THE COURT.  I DO SO WITH A GOOD DEAL LESS
RELUCTANCE THAN WOULD OTHERWISE HAVE BEEN THE CASE BECAUSE, DESPITE THE
DISTINCTIONS WHICH ARE SOUGHT TO BE DRAWN BETWEEN THESE TWO CASES, ON
THE ONE HAND, AND SPEVACK AND GARRITY, ON THE OTHER, I FIND IN THESE
OPINIONS A PROCEDURAL FORMULA WHEREBY, FOR EXAMPLE, PUBLIC OFFICIALS
MAY NOW BE DISCHARGED AND LAWYERS DISCIPLINED FOR REFUSING TO DIVULGE
TO APPROPRIATE AUTHORITY INFORMATION PERTINENT TO THE FAITHFUL
PERFORMANCE OF THEIR OFFICES.  I ADD ONLY THAT THIS IS A WELCOME
BREAKTHROUGH IN WHAT SPEVACK AND GARRITY MIGHT OTHERWISE HAVE BEEN
THOUGHT TO PORTEND. 

/1/  THIS OPINION APPLIES ALSO TO NO. 635, GARDNER V. BRODERICK,
ANTE, P. 273. 

LEONARD B. BOUDIN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WAS VICTOR RABINOWITZ. 

NORMAN REDLICH ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE J. LEE RANKIN AND JOHN J. LOFLIN. 
..END :







CAMPBELL PAINTING CORP. V. REID, 392 U.S. 286 


       GEORGE CAMPBELL PAINTING CORP. V. REID ET AL., MEMBERS OF

           NEW YORK CITY HOUSING AUTHORITY, ET AL.

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

       NO. 673.  ARGUED APRIL 30, 1968.-- DECIDED JUNE 10, 1968. 


THE PUBLIC AUTHORITIES LAW OF NEW YORK REQUIRES ALL CONTRACTS AWARDED
BY A PUBLIC AUTHORITY FOR WORK OR SERVICES TO PROVIDE THAT UPON REFUSAL
OF "A PERSON" TO TESTIFY BEFORE A GRAND JURY, TO ANSWER RELEVANT
QUESTIONS, OR TO WAIVE IMMUNITY AGAINST SUBSEQUENT PROSECUTION, SUCH
PERSON AND ANY CORPORATION OF WHICH HE IS AN OFFICER OR DIRECTOR SHALL
BE DISQUALIFIED FOR FIVE YEARS FROM CONTRACTING WITH ANY PUBLIC
AUTHORITY AND ANY EXISTING CONTRACTS MAY BE CANCELED BY THE AUTHORITY
WITHOUT PENALTY OR DAMAGES.  APPELLANT CORPORATION'S PRESIDENT, WHO WAS
ALSO A DIRECTOR AND STOCKHOLDER, EXECUTED THREE PAINTING CONTRACTS, ON
BEHALF OF APPELLANT, WITH THE NEW YORK CITY HOUSING AUTHORITY.  WHEN
APPELLANT LEARNED OF AN IMPENDING INVESTIGATION OF BID RIGGING, THE
PRESIDENT RESIGNED AND DIVESTED HIMSELF OF HIS STOCK.  HE REMAINED IN
APPELLANT'S EMPLOY AS AN "ESTIMATOR."  HE WAS LATER SUBPOENAED TO
APPEAR BEFORE THE GRAND JURY AND REFUSED TO SIGN A WAIVER OF IMMUNITY. 
APPELLANT WAS NOTIFIED THAT THE CONTRACTS WERE CANCELED AND THAT IT AND
THE PRESIDENT WERE DISQUALIFIED FOR FIVE YEARS.  THE NEW YORK COURT OF
APPEALS DENIED RELIEF TO APPELLANT, HOLDING THE DISQUALIFICATION VALID
AND THE STATUTE CONSTITUTIONAL.  THE COURT ALSO REJECTED APPELLANT'S
CLAIM THAT IT SHOULD NOT HAVE BEEN DISQUALIFIED BECAUSE ITS PRESIDENT
RESIGNED AS PRESIDENT AND DIRECTOR BEFORE BEING CALLED TO TESTIFY. 
HELD: 

1.  THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION IS "A
PERSONAL ONE, APPLYING ONLY TO NATURAL INDIVIDUALS," AND SINCE
APPELLANT CORPORATION CANNOT AVAIL ITSELF OF THE PRIVILEGE IT CANNOT
TAKE ADVANTAGE OF THE CLAIMED INVALIDITY OF A PENALTY IMPOSED FOR
REFUSAL OF AN INDIVIDUAL, ITS PRESIDENT, TO WAIVE THE PRIVILEGE.  PP.
288-289. 

2.  THERE IS NO REASON TO DISTURB THE FINDING OF THE COURT OF
APPEALS THAT THE RESIGNATION OF THE PRESIDENT WAS SOLELY FOR THE
PURPOSE OF AVOIDING DISQUALIFICATION, AND THE CONCLUSION OF THAT COURT
THAT THE PURPORTED RESIGNATION SHOULD BE DISREGARDED FOR PURPOSES OF
THIS CASE.  P. 289. 

20 N.Y.2D 370, 229 N.E.2D 602, AFFIRMED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THE PUBLIC AUTHORITIES LAW OF NEW YORK, SEC. 2601, PROVIDES THAT A
CLAUSE MUST BE INSERTED IN ALL CONTRACTS AWARDED BY A PUBLIC AUTHORITY
OF THE STATE FOR WORK OR SERVICES TO PROVIDE THAT UPON REFUSAL OF "A
PERSON" TO TESTIFY BEFORE A GRAND JURY, TO ANSWER ANY RELEVANT
QUESTION, OR TO WAIVE IMMUNITY AGAINST SUBSEQUENT CRIMINAL PROSECUTION,
SUCH PERSON AND ANY FIRM OR CORPORATION OF WHICH HE IS A MEMBER,
OFFICER, OR DIRECTOR SHALL BE DISQUALIFIED FOR FIVE YEARS FROM
CONTRACTING WITH ANY PUBLIC AUTHORITY, AND ANY EXISTING CONTRACTS MAY
BE CANCELED BY THE PUBLIC AUTHORITY WITHOUT INCURRING ANY PENALTY OR
DAMAGES.  /1/ 

DURING 1964, APPELLANT, A CLOSELY HELD FAMILY CORPORATION, ENTERED
INTO THREE PAINTING CONTRACTS WITH APPELLEE NEW YORK CITY HOUSING
AUTHORITY.  EACH OF THESE CONTAINED THE STANDARD DISQUALIFICATION
CLAUSE.  THE CONTRACTS WERE EXECUTED BY APPELLANT'S PRESIDENT, GEORGE
CAMPBELL, JR., WHO WAS ALSO A DIRECTOR AND STOCKHOLDER OF THE
CORPORATION. 

EARLY IN 1965, APPELLANT BECAME AWARE THAT THE DISTRICT ATTORNEY OF
NEW YORK COUNTY WAS CONDUCTING AN INVESTIGATION BEFORE A GRAND JURY OF
ALLEGED BID RIGGING ON PUBLIC CONTRACTS, INCLUDING THOSE OF APPELLANT. 
THEREAFTER, GEORGE CAMPBELL, JR., RESIGNED AS APPELLANT'S PRESIDENT AND
DIRECTOR AND DIVESTED HIMSELF OF HIS STOCK.  HE REMAINED IN APPELLANT'S
EMPLOY AS AN "ESTIMATOR." 

A FEW WEEKS THEREAFTER, CAMPBELL WAS SUBPOENAED TO APPEAR BEFORE THE
GRAND JURY.  HE REFUSED TO SIGN THE WAIVER OF IMMUNITY.  IN DUE COURSE,
THE PUBLIC HOUSING AUTHORITY NOTIFIED APPELLANT THAT, PURSUANT TO THE
PROVISION IN ITS CONTRACTS, THE CONTRACTS WERE TERMINATED AND CAMPBELL
AND THE CORPORATION WERE DISQUALIFIED FROM DOING BUSINESS WITH THE
AUTHORITY FOR FIVE YEARS. 

AFTER PROCEEDINGS IN THE LOWER COURTS OF NEW YORK, THE NEW YORK
COURT OF APPEALS DENIED RELIEF TO APPELLANT.  IT HELD THAT THE
DISQUALIFICATION WAS VALID AND THAT SEC. 2601 OF THE PUBLIC AUTHORITIES
LAW IS CONSTITUTIONAL, CITING GARDNER V. BRODERICK, 20 N.Y.2D 227, 229
N.E.2D 184 (1967) (REVERSED THIS DAY, ANTE, P. 273).  THE COURT OF
APPEALS ALSO REJECTED APPELLANT'S CLAIM THAT IT SHOULD NOT HAVE BEEN
DISQUALIFIED BECAUSE CAMPBELL RESIGNED AS PRESIDENT AND DIRECTOR BEFORE
HE WAS CALLED TO TESTIFY.  /2/  WE NOTED PROBABLE JURISDICTION.  390
U.S. 918 (1968). 

WE DO NOT CONSIDER THE CONSTITUTIONALITY OF SEC. 2601 OF NEW YORK'S
PUBLIC AUTHORITIES LAW OR THE VALIDITY OR EFFECT OF THE CONTRACT
PROVISIONS INCORPORATING THAT SECTION.  APPELLANT'S CLAIM IS THAT THESE
PROVISIONS OPERATED UNCONSTITUTIONALLY TO REQUIRE ITS PRESIDENT, MR.
CAMPBELL, TO WAIVE THE BENEFITS OF HIS PRIVILEGE AGAINST SELF
INCRIMINATION.  BUT APPELLANT CANNOT AVAIL ITSELF OF THIS POINT,
ASSUMING ITS VALIDITY.  IT HAS LONG BEEN SETTLED IN FEDERAL
JURISPRUDENCE THAT THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION IS "ESSENTIALLY A PERSONAL ONE, APPLYING ONLY TO NATURAL
INDIVIDUALS."  IT "CANNOT BE UTILIZED BY OR ON BEHALF OF ANY
ORGANIZATION, SUCH AS A CORPORATION."  UNITED STATES V. WHITE, 322 U.S.
694, 698, 699 (1944); SEE ALSO ESSGEE CO. V. UNITED STATES, 262 U.S.
151 (1923); BALTIMORE & OHIO R. CO. V. ICC, 221 U.S. 612, 622 (1911);
WILSON V. UNITED STATES, 221 U.S. 361, 382-385 (1911); HALE V. HENKEL,
201 U.S. 43, 74-75 (1906).  IF A CORPORATION CANNOT AVAIL ITSELF OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION, IT CANNOT TAKE ADVANTAGE OF THE
CLAIMED INVALIDITY OF A PENALTY IMPOSED FOR REFUSAL OF AN INDIVIDUAL,
ITS PRESIDENT, TO WAIVE THE PRIVILEGE.  SINCE THE PRIVILEGE IS NOT
AVAILABLE TO IT, APPELLANT, A CORPORATION, CANNOT INVOKE THE PRIVILEGE
TO CHALLENGE THE CONSTITUTIONALITY OF SEC. 2601 OF THE PUBLIC
AUTHORITIES LAW.  A FORTIORI, IT CANNOT ASSAIL THE VALIDITY OF THE
PROVISION IN THE CONTRACTS INTO WHICH IT ENTERED, INCORPORATING THE
SUBSTANCE OF THAT SECTION. 

AS TO APPELLANT'S CLAIM THAT ITS DUE PROCESS RIGHTS WERE DENIED BY
THE IMPOSITION OF THE PENALTY DESPITE MR. CAMPBELL'S PURPORTED
RESIGNATION FROM MANAGERIAL POSITIONS, WE DO NOT REACH THE ABSTRACT
LEGAL QUESTION THAT IS URGED UPON US.  WE SEE NO REASON TO DISTURB THE
FINDING OF THE NEW YORK COURT OF APPEALS THAT "THE RESIGNATION WAS
TENDERED AND ACCEPTED SOLELY FOR THE PURPOSE OF AVOIDING THE STATUTORY
DISQUALIFICATION," AND THE CONCLUSION OF THAT COURT THAT THE PURPORTED
RESIGNATION SHOULD BE DISREGARDED FOR PURPOSES OF THIS CASE. 

              AFFIRMED. 

/1/  SECTION 2602 PROVIDES FOR DISQUALIFICATION ON THE SAME BASIS
WITHOUT REFERENCE TO ANY CONTRACTUAL CLAUSE. 

/2/  THE COURT OF APPEALS NOTED THAT SEC. 2603 OF THE PUBLIC
AUTHORITIES ACT VESTS THE STATE SUPREME COURT WITH JURISDICTION, FOR
STATED REASONS, TO REMOVE THE DISQUALIFICATION. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

APPELLANT CORPORATION HAS BEEN DISQUALIFIED AS A CONTRACTOR WITH THE
STATE OF NEW YORK BECAUSE ITS PRESIDENT, GEORGE CAMPBELL, JR., WHO WAS
ALSO A DIRECTOR AND AN OWNER OF 10% OF ITS STOCK, INVOKED THE
PROTECTION OF THE SELF-INCRIMANTION CLAUSE OF THE FIFTH AMENDMENT WHEN
SUMMONED BEFORE THE GRAND JURY.  ALL OTHER OFFICERS, DIRECTORS, AND THE
CONTROLLING STOCKHOLDERS OF THIS CLOSELY HELD CORPORATION APPEARED AND
INDICATED A WILLINGNESS TO SIGN WAIVERS OF IMMUNITY AND TO TESTIFY. 
THE PRESIDENT, WHO INVOKED THE SELF-INCRIMINATION CLAUSE, RESIGNED AS
OFFICER AND DIRECTOR AND AGREED TO SELL HIS 10% STOCK INTEREST, THOUGH
SO FAR AS APPEARS THE CONTRACT OF SALE HAS NOT BEEN CONSUMMATED.  /1/ 

IN THE OLD DAYS WHEN A CULPRIT, UNPOPULAR PERSON, OR SUSPECT WAS
PUNISHED BY A BILL OF ATTAINDER, THE PENALTY IMPOSED OFTEN REACHED NOT
ONLY HIS OWN PROPERTY, BUT ALSO INTERESTS OF HIS FAMILY.  /2/  WHEN THE
PRESENT LAW BLACKLISTS THIS FAMILY CORPORATION, IT HAS A LIKE IMPACT. 

I FAIL TO SEE HOW ANY PENALTY-- DIRECT OR COLLATERAL-- CAN BE
IMPOSED ON ANYONE FOR INVOKING A CONSTITUTIONAL GUARANTEE.  A
CORPORATION, TO BE SURE, IS NOT A BENEFICIARY OF THE SELF-INCRIMINATION
CLAUSE, IN THE SENSE THAT IT MAY INVOKE IT.  UNITED STATES V. WHITE,
322 U.S. 694.  YET PLACING THIS FAMILY CORPORATION ON THE BLACKLIST AND
DISQUALIFYING IT FROM DOING BUSINESS WITH THE STATE OF NEW YORK IS ONE
WAY OF REACHING THE ECONOMIC INTEREST OF THE RECALCITRANT PRESIDENT. 
/3/  IF, AS I FELT IN SPEVACK V. KLEIN, 385 U.S. 511, PLACING THE
PENALTY OF DISBARMENT ON A LAWYER FOR INVOKING THE SELF-INCRIMINATION
CLAUSE IS UNCONSTITUTIONAL, SO IS PLACING A MONETARY PENALTY ON A
BUSINESSMAN FOR DOING THE SAME.  /4/  REDUCING THE VALUE OF APPELLANT
CORPORATION BY PUTTING IT ON THE STATE'S BLACKLIST IS A PENALTY WHICH
EVERY STOCKHOLDER SUFFERS.  IF NEW YORK PROVIDED THAT WHERE A
BUSINESSMAN INVOKES THE SELF-INCRIMINATION CLAUSE OF THE FIFTH
AMENDMENT HE SHALL FORFEIT, SAY $10,000, THE LAW WOULD PLAINLY BE
UNCONSTITUTIONAL AS EXACTING A PENALTY FOR ASSERTING A CONSTITUTIONAL
PRIVILEGE.  WHAT NEW YORK COULD NOT DO DIRECTLY, IT MAY NOT DO
INDIRECTLY.  YET PENALIZING THIS MAN'S FAMILY CORPORATION FOR HIS
ASSERTION OF IMMUNITY HAS PRECISELY THAT EFFECT. 

THE SUPREMACY CLAUSE OF THE CONSTITUTION (ART. VI, CL. 2) GIVES THE
FIFTH AMENDMENT, NOW APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH, CONTROLLING AUTHORITY OVER NEW YORK'S LAW. 

/1/  ONE OF THE DIRECTORS OF THE CORPORATION TESTIFIED BEFORE
APPELLEE NEW YORK CITY HOUSING AUTHORITY THAT NO CONSIDERATION WAS PAID
FOR THE STOCK AT THE TIME OF TRANSFER, AND THAT THERE WAS AS YET NO
FORMAL OR INFORMAL AGREEMENT AS TO PAYMENT FOR THE STOCK. 

MOREOVER, THE PLEADINGS REVEAL THAT GEORGE CAMPBELL, JR., WAS AT ALL
TIMES RELEVANT HERE A 10% RESIDUARY LEGATEE UNDER THE ESTATE OF HIS
LATE FATHER.  THAT ESTATE CONTAINED 50% OF THE STOCK OF APPELLANT
CORPORATION.  THUS, GEORGE CAMPBELL, JR., POSSESSED A SUBSTANTIAL
ADDITIONAL INTEREST IN THE CORPORATION WHICH WOULD LIKELY BE AFFECTED
BY ANY INCREASE OR DECREASE IN THE VALUE OF THE STOCK. 

/2/  E.G., DELAWARE LAWS 1778, C. 29B; NEW JERSEY, ACT OF DEC. 11,
1778, N.J. REV. LAWS 40 (PATERSON ED. 1800).  COMPARE NORTH CAROLINA
LAWS, SESSION OF APRIL 14, 1778, C. 5, CALLING FOR CONFISCATION OF THE
ESTATES OF CERTAIN PERSONS "INIMICAL TO THE UNITED STATES," BUT
SPECIFICALLY PROVIDING THAT MEMBERS OF THEIR FAMILIES SHOULD BE ALLOWED
THAT PORTION OF THE ESTATE FORFEITED WHICH THEY MIGHT HAVE ENJOYED HAD
THE OWNER DIED INTESTATE.  SEE ALSO BAYARD V. SINGLETON, 1 MARTIN'S
N.C.REP.  42 (1787).  AND SEE COMMENT, THE SUPREME COURT'S BILL OF
ATTAINDER DOCTRINE:  A NEED FOR CLARIFICATION, 54 CALIF.L.REV.  212,
214, 216 (1966). 

/3/  DAMAGE TO SHAREHOLDERS WHICH RESULTS INDIRECTLY FROM DAMAGE
DONE TO THE CORPORATION CAN, OF COURSE, BE RECTIFIED THROUGH SUIT BY
THE CORPORATION ITSELF OR BY A STOCKHOLDER'S DERIVATIVE ACTION.  E.G.,
PAULSON V. MARGOLIS, 234 APP.DIV.  496, 255 N.Y.S. 568 (SUP. CT.
1932).  SEE GENERALLY BALLANTINE, CORPORATIONS 333-339 (1946); 13
FLETCHER CYCLOPEDIA, CORPORATIONS 5908-5911 (1961).  THERE IS NO
INDICATION IN THE OPINION OF THE NEW YORK COURT OF APPEALS THAT THAT
REMEDY IS INAPPROPRIATE ON THE FACTS OF THIS CASE. 

/4/  THE FACT THAT APPELLANT MAY PETITION THE NEW YORK COURTS FOR
DISCRETIONARY RELIEF UNDER SEC. 2603 OF THE NEW YORK PUBLIC AUTHORITIES
LAW DOES NOT CURE THE DEFECT.  FOR APPELLANT'S CLAIM IS THAT ITS
DISQUALIFICATION WAS IMPROPER, AND THAT IT WAS PENALIZED PURSUANT TO AN
UNCONSTITUTIONAL STATUTE.  ITS REMEDY CANNOT BE LIMITED BY SEC. 2603,
WHICH WAS CONSTRUED BY THE NEW YORK COURT OF APPEALS BELOW TO GRANT THE
STATE COURTS DISCRETION TO AFFORD RELIEF FROM A PROPER DISQUALIFICATION
WHEN THE APPLICATION OF THE STATUTE WOULD CAUSE AN UNNECESSARY
HARDSHIP.  INDEED, SEC. 2603 BY ITS TERMS DOES NOT EVEN INVOLVE A
REVIEW OF THE BASIS FOR THE DISQUALIFICATION, BUT PROVIDES THAT ANY
DISQUALIFIED CORPORATION MAY APPLY TO THE NEW YORK SUPREME COURT TO
DISCONTINUE THE DISQUALIFICATION: "SUCH APPLICATION SHALL BE IN THE
FORM OF A PETITION SETTING FORTH GROUNDS, INCLUDING THAT THE
COOPERATION BY PETITIONER WITH THE GRAND JURY AT THE TIME OF THE
REFUSAL WAS SUCH, AND THE AMOUNT AND DEGREE OF CONTROL AND FINANCIAL
INTEREST, IF ANY, IN THE PETITIONING FIRM, PARTNERSHIP OR CORPORATION
BY THE MEMBER, PARTNER, OFFICER OR DIRECTOR WHO REFUSED TO WAIVE
IMMUNITY IS SUCH THAT IT WILL NOT BE IN THE PUBLIC INTEREST TO CANCEL
OR TERMINATE PETITIONER'S CONTRACTS OR TO CONTINUE THE DISQUALIFICATION
. . . ." 

ALBERT A. BLINDER ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE THEODORE M. RUZOW AND STEPHEN HOCHHAUSER. 

PAUL W. HESSEL ARGUED THE CAUSE FOR APPELLEE NEW YORK CITY HOUSING
AUTHORITY.  WITH HIM ON THE BRIEF WERE HARRY LEVY AND I. STANLEY
STEIN.  SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL OF NEW
YORK, ARGUED THE CAUSE FOR APPELLEE ATTORNEY GENERAL OF NEW YORK.  WITH
HIM ON THE BRIEF WERE LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK,
PRO SE, AND BRENDA SOLOFF, ASSISTANT ATTORNEY GENERAL. 
..END :










ROBERTS V. RUSSELL, 392 U.S. 293 


       ROBERTS V. RUSSELL. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

        NO. 920, MISC.  DECIDED JUNE 10, 1968. 


BRUTON V. UNITED STATES, 391 U.S. 123, WHICH OVERRULED DELLI PAOLI V.
UNITED STATES, 352 U.S. 232, AND HELD THAT, DESPITE INSTRUCTIONS TO THE
JURY TO DISREGARD IMPLICATING STATEMENTS IN DETERMINING A CODEFENDANT'S
GUILT OR INNOCENCE, ADMISSION AT A JOINT TRIAL OF A DEFENDANT'S
EXTRAJUDICIAL CONFESSION IMPLICATING A CODEFENDANT VIOLATES THE
CODEFENDANT'S SIXTH AMENDMENT RIGHT TO CROSS-EXAMINATION, IS TO BE
APPLIED RETROACTIVELY, BOTH TO STATE AND FEDERAL PROSECUTIONS. 

CERTIORARI GRANTED; JUDGMENT VACATED AND REMANDED. 

PER CURIAM. 

IN BRUTON V. UNITED STATES, 391 U.S. 123, DECIDED MAY 20, 1968, WE
OVERRULED DELLI PAOLI V. UNITED STATES, 352 U.S. 232, AND HELD THAT,
DESPITE INSTRUCTIONS TO THE JURY TO DISREGARD THE IMPLICATING
STATEMENTS IN DETERMINING THE CODEFENDANT'S GUILT OR INNOCENSE,
ADMISSION AT A JOINT TRIAL OF A DEFENDANT'S EXTRAJUDICIAL CONFESSION
IMPLICATING A CODEFENDANT VIOLATED THE CODEFENDANT'S RIGHT OF CROSS
EXAMINATION SECURED BY THE CONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT.  THIS CASE PRESENTS THE QUESTION WHETHER BRUTON IS TO BE
APPLIED RETROACTIVELY.  WE HOLD THAT IT IS. 

THE FACTS PARALLEL THE FACTS IN BRUTON.  THE PETITIONER WAS
CONVICTED BY A JURY OF ARMED ROBBERY AT A JOINT TRIAL WITH ONE RAPPE IN
DAVIDSON COUNTY, TENNESSEE.  A POLICE OFFICER TESTIFIED THAT RAPPE
ORALLY CONFESSED TO HIM THAT PETITIONER AND RAPPE COMMITTED THE CRIME. 
THE TRIAL JUDGE INSTRUCTED THE JURY THAT RAPPE'S CONFESSION WAS
ADMISSIBLE AGAINST HER BUT THAT HER STATEMENTS IMPLICATING PETITIONER
WERE NOT TO BE CONSIDERED IN DETERMINING PETITIONER'S GUILT OR
INNOCENCE.  THE TENNESSEE SUPREME COURT AFFIRMED PETITIONER'S
CONVICTION.  PETITIONER FILED A PROCEEDING IN FEDERAL HABEAS CORPUS IN
THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE. 
THAT COURT RELIED ON DELLI PAOLI AND DENIED RELIEF.  THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT AFFIRMED. 

ALTHOUGH BRUTON INVOLVED A FEDERAL PROSECUTION AND THIS IS A STATE
PROSECUTION, THE RIGHT OF CROSS-EXAMINATION SECURED BY THE
CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT IS MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH AMENDMENT.  POINTER V. TEXAS, 380 U.S. 400;
DOUGLAS V. ALABAMA, 380 U.S. 415. 

"WE HAVE . . . RETROACTIVELY APPLIED RULES OF CRIMINAL PROCEDURE
FASHIONED TO CORRECT SERIOUS FLAWS IN THE FACTFINDING PROCESS AT
TRIAL."  STOVALL V. DENNO, 388 U.S. 293, 298.  SEE JACKSON V. DENNO,
378 U.S. 368; GIDEON V. WAINWRIGHT, 372 U.S. 335; RECK V. PATE, 367
U.S. 433; LINKLETTER V. WALKER, 381 U.S. 618, 639, N. 20; JOHNSON V.
NEW JERSEY, 384 U.S. 719, 727-728; CF. BROOKHART V. JANIS, 384 U.S. 1. 
DESPITE THE CAUTIONARY INSTRUCTION, THE ADMISSION OF A DEFENDANT'S
CONFESSION WHICH IMPLICATES A CODEFENDANT RESULTS IN SUCH A "SERIOUS
FLAW."  THE RETROACTIVITY OF THE HOLDING IN BRUTON IS THEREFORE
REQUIRED; THE ERROR "WENT TO THE BASIS OF FAIR HEARING AND TRIAL
BECAUSE THE PROCEDURAL APPARATUS NEVER ASSURED THE (PETITIONER) A FAIR
DETERMINATION" OF HIS GUILT OR INNOCENCE.  LINKLETTER V. WALKER, SUPRA,
AT 639, N. 20.  AS WE SAID IN BRUTON: 

"(THERE ARE SOME CONTEXTS IN WHICH THE RISK THAT THE JURY WILL NOT,
OR CANNOT, FOLLOW INSTRUCTIONS IS SO GREAT, AND THE CONSEQUENCES OF
FAILURE SO VITAL TO THE DEFENDANT, THAT THE PRACTICAL AND HUMAN
LIMITATIONS OF THE JURY SYSTEM CANNOT BE IGNORED . . . . SUCH A CONTEXT
IS PRESENTED HERE, WHERE THE POWERFULLY INCRIMINATING EXTRAJUDICIAL
STATEMENTS OF A CODEFENDANT . . . ARE DELIBERATELY SPREAD BEFORE THE
JURY IN A JOINT TRIAL."  391 U.S.,AT 135-136. 

DUE REGARD FOR COUNTERVAILING CONSIDERATIONS-- RELIANCE ON THE OLD
STANDARD OF DELLI PAOLI AND THE IMPACT OF RETROACTIVITY UPON THE
ADMINISTRATION OF JUSTICE, STOVALL V. DENNO, SUPRA, AT 298-- DOES NOT
COUNSEL AGAINST RETROACTIVITY OF BRUTON.  THE ELEMENT OF RELIANCE IS
NOT PERSUASIVE, FOR DELLI PAOLI HAS BEEN UNDER ATTACK FROM ITS
INCEPTION AND MANY COURTS HAVE IN FACT REJECTED IT.  SEE BRUTON V.
UNITED STATES, SUPRA, AT 128-135 AND NN. 4, 8, 10.  AND EVEN IF THE
IMPACT OF RETROACTIVITY MAY BE SIGNIFICANT, THE CONSTITUTIONAL ERROR
PRESENTS A SERIOUS RISK THAT THE ISSUE OF GUILT OR INNOCENCE MAY NOT
HAVE BEEN RELIABLY DETERMINED. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR
FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED STATES, SUPRA.

              IT IS SO ORDERED. 

MR. JUSTICE BLACK CONCURS IN THE COURT'S HOLDING AS TO RETROACTIVITY
FOR THE REASONS GIVEN IN HIS DISSENT IN LINKLETTER V. WALKER, 381 U.S.
618, 640, AND NOT FOR THE REASONS GIVEN IN THE COURT'S OPINION TODAY. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

GEORGE F. MCCANLESS, ATTORNEY GENERAL OF TENNESSEE, AND PAUL E.
JENNINGS, ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :
















JOHNSON PRODUCTS V. CITY COUNCIL OF MEDFORD, 392 U.S. 296 


       JOHNSON PRODUCTS, INC. V. CITY COUNCIL OF MEDFORD ET AL.

        APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

        NO. 1398.  DECIDED JUNE 10, 1968. 


353 MASS. 540, 233 N.E.2D 316, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

DAVID BERMAN FOR APPELLANT. 

ARTHUR V. GETCHELL FOR APPELLEES. 
..END :









PERLA V. NEW YORK, 392 U.S. 296 


       PERLA V. NEW YORK ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS

           OF NEW YORK. 

        NO. 1407.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; 21 N.Y.2D 608, 237 N.E.2D 215, REVERSED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  GARDNER V. BRODERICK, ANTE, P. 273. 

HERALD PRICE FAHRINGER AND EUGENE GRESSMAN FOR PETITIONER. 

LOUIS J. LIFKOWITZ, ATTORNEY GENERAL OF NEW YORK, PRO SE, RUTH
KESSLER TOCH, SOLICITOR GENERAL, AND JULIUS L. SACKMAN, ASSISTANT
ATTORNEY GENERAL, FOR RESPONDENTS. 
..END :







BUJESE V. UNITED STATES, 392 U.S. 297 


       BUJESE V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SECOND CIRCUIT. 

        NO. 440, MISC.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; 378 F.2D 719, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT
OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF APPEALS FOR
THE SECOND CIRCUIT IS VACATED AND THE CASE IS REMANDED TO THAT COURT
FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED STATES, 391 U.S.
123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

ACTING SOLICITOR GENERAL SPRITZER, ASSISTANT ATTORNEY GENERAL
VINSON, BEATRICE ROSENBERG, AND MARSHALL TAMOR GOLDING FOR THE UNITED
STATES. 
..END :
























FIELDS V. DEPARTMENT OF SOCIAL WELFARE, 392 U.S. 297 


       FIELDS V. DEPARTMENT OF SOCIAL WELFARE. 

APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FIRST

      APPELLATE DISTRICT. 

        NO. 1637, MISC.  DECIDED JUNE 10, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :












SCHNEBLE V. FLORIDA, 392 U.S. 298 


       SCHNEBLE ET AL. V. FLORIDA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

FLORIDA. 

        NO. 1070, MISC.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; 201 SO.2D 881, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT
OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME COURT OF
FLORIDA IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER
CONSIDERATION IN LIGHT OF BRUTON V. UNITED STATES, 391 U.S. 123.  SEE
ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

EARL FAIRCLOTH, ATTORNEY GENERAL OF FLORIDA, AND GEORGE R. GEORGIEFF,
ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :



BOGART V. CALIFORNIA, 392 U.S. 298 


       BOGART V. CALIFORNIA. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND

           APPELLATE DISTRICT. 

        NO. 1221, MISC.  DECIDED JUNE 10, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, IS DENIED. 

PETER D. BOGART FOR PETITIONER. 
..END :










JONES V. UNITED STATES, 392 U.S. 299 


       JONES V. UNITED STATES. 

        ON PETITION FOR REHEARING. 

        NO. 135.  DECIDED JUNE 10, 1968. 


REHEARING GRANTED; CERTIORARI GRANTED; 374 F.2D 414, VACATED AND
REMANDED. 

PER CURIAM. 

THE PETITION FOR REHEARING IS GRANTED AND THE ORDER DENYING THE
PETITION FOR WRIT OF CERTIORARI, 389 U.S. 835, IS SET ASIDE.  THE
PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS FOR THE SECOND CIRCUIT IS VACATED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V.
UNITED STATES, 391 U.S. 123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

HERBERT MONTE LEVY FOR PETITIONER. 

SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON, AND
PHILIP R. MONAHAN FOR THE UNITED STATES. 
..END :




















PICKENS V. OLIVER, 392 U.S. 300 


       PICKENS V. OLIVER, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

CALIFORNIA. 

        NO. 1076.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED FURTHER IN FORMA PAUPERIS AND THE
PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE
SUPREME COURT OF CALIFORNIA IS VACATED AND THE CASE IS REMANDED TO THAT
COURT FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED STATES,
391 U.S. 123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

GEORGE T. DAVIS FOR PETITIONER. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, ALBERT W. HARRIS,
JR., ASSISTANT ATTORNEY GENERAL, AND DERALD E. GRANBERG, DEPUTY
ATTORNEY GENERAL, FOR RESPONDENT. 
..END :






















SANTORO V. UNITED STATES, 392 U.S. 301 


       SANTORO V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 1219.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; 388 F.2D 113, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF
THE COURT OF APPEALS FOR THE NINTH CIRCUIT IS VACATED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V.
UNITED STATES, 391 U.S. 123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

ROBERT S. BAILEY FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON,
BEATRICE ROSENBERG, AND KIRBY W. PATTERSON FOR THE UNITED STATES. 
..END :





















JONES V. LOUISIANA, 392 U.S. 302 


       JONES V. LOUISIANA. 

        APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

        NO. 1255.  DECIDED JUNE 10, 1968. 


251 LA. 431, 204 SO.2D 775, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

THE CHIEF JUSTICE WOULD DISMISS THE APPEAL FOR WANT OF JURISDICTION,
TREAT THE PAPERS SUBMITTED AS A PETITION FOR A WRIT OF CERTIORARI, AND
GRANT THE PETITION FOR A WRIT OF CERTIORARI. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 

BILLY R. PESNELL FOR APPELLANT. 

JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, AND WILLIAM P.
SCHULER, SECOND ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :




NELSON V. UNITED STATES, 392 U.S. 303 


       NELSON V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 78, MISC.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; 375 F.2D 739, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT
OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF APPEALS FOR
THE NINTH CIRCUIT IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED STATES, 391 U.S.
123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON, AND
BEATRICE ROSENBERG FOR THE UNITED STATES. 
..END :






















HUNT V. CONNECTICUT, 392 U.S. 304 


       HUNT V. CONNECTICUT. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           CONNECTICUT. 

        NO. 117, MISC.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; 154 CONN. 517, 227 A.2D 69, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT
OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME COURT OF
CONNECTICUT IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED STATES, 391 U.S.
123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

JAMES W. MARSHALL FOR PETITIONER. 

DAVID B. SALZMAN FOR RESPONDENT. 
..END :





















SERIO V. UNITED STATES, 392 U.S. 305 


       SERIO V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

NO. 200, MISC.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; 126 U.S.APP.D.C. 297, 377 F.2D 936, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT
OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS VACATED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V.
UNITED STATES, 391 U.S. 123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON,
BEATRICE ROSENBERG, AND PAUL C. SUMMITT FOR THE UNITED STATES. 
..END :



















WILLIAMS V. FLORIDA, 392 U.S. 306 


       WILLIAMS V. FLORIDA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF

           APPEAL OF FLORIDA, FIRST DISTRICT. 

        NO. 279, MISC.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT
OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE DISTRICT COURT OF
APPEAL OF FLORIDA, FIRST DISTRICT, IS VACATED AND THE CASE IS REMANDED
TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED
STATES, 391 U.S. 123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

EARL FAIRCLOTH, ATTORNEY GENERAL OF FLORIDA, AND WALLACE E.
ALLBRITTON, ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :



HILLMAN V. FLORIDA, 392 U.S. 307 


       HILLMAN V. FLORIDA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF

           APPEAL OF FLORIDA, FIRST DISTRICT. 

        NO. 443, MISC.  DECIDED JUNE 10, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT
OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE DISTRICT COURT OF
APPEAL OF FLORIDA, FIRST DISTRICT, IS VACATED AND THE CASE IS REMANDED
TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED
STATES, 391 U.S. 123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

EARL FAIRCLOTH, ATTORNEY GENERAL OF FLORIDA, AND WALLACE E.
ALLBRITTON, ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :



MCCARTY V. KANSAS, 392 U.S. 308 


       MCCARTY ET AL. V. KANSAS. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

KANSAS. 

        NO. 548, MISC.  DECIDED JUNE 10, 1968. 


199 KAN. 116, 427 P.2D 616; CERTIORARI GRANTED WITH RESPECT TO
PETITIONER BOYD, JUDGMENT VACATED AND REMANDED; CERTIORARI DENIED WITH
RESPECT TO PETITIONER MCCARTY. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT
OF CERTIORARI ARE GRANTED WITH RESPECT TO PETITIONER BOYD.  THE
JUDGMENT OF THE KANSAS SUPREME COURT IS VACATED AND THE CASE IS
REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF BRUTON V. UNITED STATES,
391 U.S. 123.  SEE ROBERTS V. RUSSELL, ANTE, P. 293.  THE PETITION FOR
A WRIT OF CERTIORARI WITH RESPECT TO PETITIONER MCCARTY IS DENIED. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN MR. JUSTICE WHITE'S DISSENTING OPINION IN BRUTON V. UNITED
STATES, 391 U.S. 123, 138 (1968). 

ROBERT C. LONDERHOLM, ATTORNEY GENERAL OF KANSAS, AND J. RICHARD
FOTH, RICHARD E. OXANDALE, AND DANIEL D. METZ, ASSISTANT ATTORNEYS
GENERAL, FOR RESPONDENT. 
..END :





















READING CO. V. BROWN, 391 U.S. 471 


       READING CO. V. BROWN, TRUSTEE IN BANKRUPTCY, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT. 

        NO. 127.  ARGUED MARCH 4-5, 1968.-- DECIDED JUNE 3, 1968. 


A REALTY CORPORATION FILED A PETITION FOR ARRANGMENT UNDER CHAPTER XI
OF THE BANKRUPTCY ACT.  THE DISTIRCT COURT APPOINTED RESPONDENT BROWN
AS RECEIVER AND AUTHORIZED HIM TO OPERATE THE DEBTOR'S BUSINESS, WHICH
CONSISTED PRINCIPALLY OF LEASING AN INDUSTRIAL BUILDING, THE DEBTOR'S
ONLY SIGNIFICANT ASSET.  FIRE DESTROYED THE BUILDING AND SPREAD TO AND
DESTROYED THE PROPERTY OF PETITIONER AND OTHERS.  PETITIONER FILED A
CLAIM FOR "ADMINISTRATIVE EXPENSES" OF THE ARRANGEMENT BASED ON THE
RECEIVER'S ASSERTED NEGLIGENCE AND OTHERS FILED 146 ADDITIONAL SIMILAR
CLAIMS.  THEREAFTER THE REALTY COMPANY WAS VOLUNTARILY ADJUDICATED A
BANKRUPT AND PETITIONER'S AND THE OTHERS'  CLAIMS THUS BECAME CLAIMS
FOR ADMINISTRATION EXPENSES IN BANKRUPTCY.  UNDER SEC. 64A(1) OF THE
BANKRUPTCY ACT "THE COSTS AND EXPENSES OF ADMINISTRATION, INCLUDING THE
ACTUAL AND NECESSARY COSTS AND EXPENSES OF PRESERVING THE ESTATE," ARE
GIVEN FIRST PRIORITY, AND IT IS AGREED THAT THAT PROVISION APPLIES TO
ADMINISTRATION EXPENSES OF CHAPTER XI ARRANGEMENTS.  BROWN, WHO HAD
BEEN ELECTED TRUSTEE, MOVED TO EXPUNGE THE CLAIMS AS NOT BEING EXPENSES
OF ADMINISTRATION.  IT WAS AGREED (1) THAT THE DECISION AS TO WHETHER
PETITIONER'S CLAIM WAS THUS PROVABLE WOULD APPLY TO THE OTHER 146
CLAIMS AND (2) THAT, FOR PURPOSES OF DECIDING WHETHER THE CLAIM IS
PROVABLE, THE DAMAGE TO PETITIONER'S PROPERTY RESULTED FROM THE
NEGLIGENCE OF THE RECEIVER AND WORKMAN HE EMPLOYED.  THE DISTRICT COURT
UPHELD THE REFEREE'S DISALLOWANCE OF THE CLAIM, AND THE COURT OF
APPEALS AFFIRMED.  THE UNITED STATES, THE HOLDER OF A TAX CLAIM, WHICH
HAD ENTERED THE CASE ON THE SIDE OF THE TRUSTEE, URGES AS A RESPONDENT
THAT TORT CLAIMS DURING AN ARRANGEMENT, IF PROPERLY PRESERVED, ARE
PROVABLE ONLY AS GENERAL CLAIMS IN ANY SUBSEQUENT BANKRUPTCY, UNDER
SEC. 63A OF THE ACT, WHICH PROVIDES THAT "(DEBTS OF THE BANKRUPT MAY BE
PROVED AND ALLOWED AGAINST HIS ESTATE WHICH ARE FOUNDED UPON . . . (7)
THE RIGHT TO RECOVER DAMAGES IN ANY ACTION FOR NEGLIGENCE INSTITUTED
PRIOR TO AND PENDING AT THE TIME OF THE FILING OF THE PETITION IN
BANKRUPTCY . . . ."  HELD:  DAMAGES RESULTING FROM THE NEGLIGENCE OF A
RECEIVER ACTING WITHIN THE SCOPE OF HIS AUTHORITY AS RECEIVER GIVE RISE
TO "ACTUAL AND NECESSARY" COSTS OF OPERATING THE DEBTOR'S BUSINESS
UNDER A CHAPTER XI ARRANGEMENT AND ARE THUS ENTITLED TO THE PRIORITY
STATUS ACCORDED TO COSTS OF ADMINISTRATION BY SEC. 64A(1) OF THE
BANKRUPTCY ACT.  PP. 476-485. 

(A) THE TRUSTEE'S CONTENTION THAT FIRST PRIORITY AS "NECESSARY"
EXPENSES SHOULD BE GIVEN ONLY TO THOSE EXPENDITURES WHICH ARE NECESSARY
TO ENCOURAGE THIRD PARTIES TO DEAL WITH AN INSOLVENT BUSINESS OVERLOOKS
THE STATUTORY OBJECTIVE OF FAIRNESS TO ALL CLAIMANTS AGAINST AN
INSOLVENT.  P. 477. 

(B) PETITIONER, WHICH IN PRINCIPLE CONCEDEDLY HAS A RIGHT TO RECOVER
AGAINST THE "EMPLOYER" (THE BUSINESS UNDER ARRANGEMENT) OF THE RECEIVER
AND WORKMAN WHO INFLICTED THE INJURY, UNDER THE RULE OF RESPONDEAT
SUPERIOR, DID NOT MERELY SUFFER INJURY AT THE HANDS OF AN INSOLVENT
BUSINESS:  IT HAD AN INSOLVENT BUSINESS THRUST UPON IT BY OPERATION OF
LAW.  PP. 477-478. 

(C) IT WOULD NOT COMPORT WITH THE PRINCIPLE OF RESPONDEAT SUPERIOR
OR THE RULE . OF FAIRNESS IN BANKRUPTCY TO SEEK THE OBJECTIVES OF A
CHAPTER XI ARRANGEMENT AT THE COST OF EXCLUDING THE ARRANGEMENT'S TORT
CREDITORS OR TOTALLY SUBORDINATING THEIR CLAIMS TO THOSE FOR WHOSE
BENEFIT THE ARRANGEMENT IS INSTITUTED.  P. 479. 

(D) A TORT CLAIM ARISING DURING AN ARRANGEMENT, LIKE A TORT CLAIM
ARISING DURING A BANKRUPTCY PROCEEDING PROPER, IS NOT PROVABLE AS A
GENERAL CLAIM IN BANKRUPTCY UNDER SEC. 63.  TO ESTABLISH A CLAIM UNDER
THAT PROVISION SUIT MUST BE FILED BEFORE THE FILING OF THE PETITION IN
BANKRUPTCY AND WHEN THE SECTION IS APPLIED TO AN ARRANGEMENT, THE DATE
OF THE FILING OF THE PETITION IN BANKRUPTCY IS DEEMED TO BE THE DATE OF
THE FILING OF THE ARRANGEMENT PETITION; AND IN ANY EVENT A CLAIM UNDER
SEC. 63A MUST BE A CLAIM AGAINST THE DEBTOR, NOT AGAINST THE ESTATE, IN
A CHAPTER XI ARRANGEMENT.  PP. 479-483. 

(E) THE COSTS OF INSURANCE AGAINST TORT CLAIMS ARISING DURING AN
ARRANGEMENT ARE ADMINISTRATION EXPENSES PAYABLE IN FULL UNDER SEC.
64A(1), AND IF A RECEIVER OR DEBTOR IN POSSESSION IS TO BE ENCOURAGED
TO OBTAIN ADEQUATE INSURANCE, THE CLAIMS AGAINST WHICH THE INSURANCE IS
OBTAINED SHOULD BE POTENTIALLY PAYABLE IN FULL.  P. 483. 

(F) THE LONG-ESTABLISHED RULE OF EQUITY RECEIVERSHIPS, THAT TORTS OF
THE RECEIVERSHIP CREATE CLAIMS AGAINST THE RECEIVERSHIP ITSELF,
PROVIDES AN ANALOGY TO THE SITUATION HERE.  PP. 483-484. 

370 F.2D 624, REVERSED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

ON NOVEMBER 16, 1962, I. J. KNIGHT REALTY CORPORATION FILED A PETITION
FOR AN ARRANGEMENT UNDER CHAPTER XI OF THE BANKRUPTCY ACT, 11 U.S.C.
701-799.  THE SAME DAY, THE DISTRICT COURT APPOINTED A RECEIVER,
FRANCIS SHUNK BROWN, A RESPONDENT HERE.  THE RECEIVER WAS AUTHORIZED TO
CONDUCT THE DEBTOR'S BUSINESS, WHICH CONSISTED PRINCIPALLY OF LEASING
THE DEBTOR'S ONLY SIGNIFICANT ASSET, AN EIGHT-STORY INDUSTRIAL
STURCTURE LOCATED IN PHILADELPHIA. 

ON JANUARY 1, 1963, THE BUILDING WAS TOTALLY DESTROYED BY A FIRE
WHICH SPREAD TO ADJOINING PREMISES AND DESTROYED REAL AND PERSONAL
PROPERTY OF PETITIONER READING COMPANY AND OTHERS.  ON APRIL 3, 1963,
PETITIONER FILED A CLAIM FOR $559,730.83 IN THE ARRANGEMENT, BASED ON
THE ASSERTED NEGLIGENCE OF THE RECEIVER.  IT WAS STYLED A CLAIM FOR
"ADMINISTRATIVE EXPENSES" OF THE ARRANGEMENT.  OTHER FIRE LOSS
CLAIMANTS FILED 146 ADDITIONAL CLAIMS OF A SIMILAR NATURE.  THE TOTAL
OF ALL SUCH CLAIMS WAS IN EXCESS OF $3,500,000, SUBSTANTIALLY MORE THAN
THE TOTAL ASSETS OF THE DEBTOR. 

ON MAY 14, 1963, KNIGHT REALTY WAS VOLUNTARILY ADJUDICATED A
BANKRUPT AND RESPONDENT RECEIVER WAS SUBSEQUENTLY ELECTED TRUSTEE IN
BANKRUPTCY.  THE CLAIMS OF PETITIONER AND OTHERS THUS BECAME CLAIMS FOR
ADMINISTRATION EXPENSES IN BANKRUPTCY WHICH ARE GIVEN FIRST PRIORITY
UNDER SEC. 64A(1) OF THE BANKRUPTCY ACT, 11 U.S.C. 104(A)(1).  /1/  THE
TRUSTEE MOVED TO EXPUNGE THE CLAIMS ON THE GROUND THAT THEY WERE NOT
FOR EXPENSES OF ADMINISTRATION.  IT WAS AGREED THAT THE DECISION
WHETHER PETITIONER'S CLAIM IS PROVABLE AS AN EXPENSE OF ADMINISTRATION
WOULD ESTABLISH THE STATUS OF THE 146 CLAIMS.  IT WAS FURTHER AGREED
THAT, FOR PURPOSES OF DECIDING WHETHER THE CLAIM IS PROVABLE, IT WOULD
BE ASSUMED THAT THE DAMAGE TO PETITIONER'S PROPERTY RESULTED FROM THE
NEGLIGENCE OF THE RECEIVER AND A WORKMAN HE EMPLOYED.  /2/  THE UNITED
STATES, HOLDING A CLAIM FOR UNPAID PREARRANGEMENT TAXES ADMITTEDLY
SUPERIOR TO THE CLAIMS OF GENERAL CREDITORS AND INFERIOR TO CLAIMS FOR
ADMINISTRATION EXPENSES, ENTERED THE CASE ON THE SIDE OF THE TRUSTEE. 

THE REFEREE DISALLOWED THE CLAIM FOR ADMINISTRATION EXPENSES.  HE
ALSO RULED THAT PETITIONER'S CLAIM WAS NOT PROVABLE AS A GENERAL CLAIM
AGAINST THE ESTATE, A RULING CHALLENGED BY NEITHER SIDE.  /3/  ON
PETITION FOR REVIEW, THE REFEREE WAS UPHELD BY THE DISTRICT COURT.  ON
APPEAL, THE COURT OF APPEALS FOR THE THIRD CIRCUIT, SITTING EN BANC,
AFFIRMED THE DECISION OF THE DISTRICT COURT BY A 4-3 VOTE.  WE GRANTED
CERTIORARI, 389 U.S. 895, BECAUSE THE ISSUE IS IMPORTANT IN THE
ADMINISTRATION OF THE BANKRUPTCY LAWS AND IS ONE OF FIRST IMPRESSION IN
THIS COURT.  FOR REASONS TO FOLLOW, WE REVERSE. 


     "THE DEBTS TO HAVE PRIORITY, IN ADVANCE OF THE PAYMENT OF

  DIVIDENDS TO CREDITORS, AND TO BE PAID IN FULL OUT OF BANKRUPT

  ESTATES, AND THE ORDER OF PAYMENT, SHALL BE (1) THE COSTS AND

  EXPENSES OF ADMINISTRATION, ICNLUDING THE ACTUAL AND NECESSARY

COSTS AND EXPENSES OF PRESERVING THE ESTATE SUBSEQUENT TO FILING

  THE PETITION . . . ." 

IT IS AGREED THAT THIS SECTION, APPLICABLE BY ITS TERMS TO STRAIGHT
BANKRUPTCIES, GOVERNS PAYMENT OF ADMINISTRATION EXPENSES OF CHAPTER XI
ARRANGEMENTS.  FURTHERMORE, IT IS AGREED THAT FOR THE PURPOSE OF
APPLYING THIS SECTION TO ARRANGEMENTS, THE WORDS "SUBSEQUENT TO FILING
THE PETITION" REFER TO THE PERIOD SUBSEQUENT TO THE ARRANGEMENT
PETITION, /4/  AND THE WORDS "PRESERVING THE ESTATE" INCLUDE THE LARGER
OBJECTIVE, COMMON TO ARRANGEMENTS, OF OPERATING THE DEBTOR'S BUSINESS
WITH A VIEW TO REHABILITATING IT.  /5/ 

THE QUESTION IN THIS CASE IS WHETHER THE NEGLIGENCE OF A RECEIVER
ADMINISTERING AN ESTATE UNDER A CHAPTER XI ARRANGEMENT GIVES RISE TO AN
"ACTUAL AND NECESSARY" COST OF OPERATING THE DEBTOR'S BUSINESS.  THE
ACT DOES NOT DEFINE "ACTUAL AND NECESSARY," NOR HAS ANY CASE DIRECTLY
IN POINT BEEN BROUGHT TO OUR ATTENTION.  /6/ WE MUST, THEREFORE,LOOK TO
THE GENERAL PURPOSES OF SEC.64A, CHAPTER XI, AND THE BANKRUPTCY ACT AS
A WHOLE. 

THE TRUSTEE CONTENDS THAT THE RELEVANT STATUTORY OBJECTIVES ARE (1)
TO FACILITATE REHABILITATION OF INSOLVENT BUSINESSES AND (2) TO
PRESERVE A MAXIMUM OF ASSETS FOR DISTRIBUTION AMONG THE GENERAL
CREDITORS SHOULD THE ARRANGEMENT FAIL.  HE THEREFORE ARGUES THAT FIRST
PRIORITY AS "NECESSARY" EXPENSES SHOULD BE GIVEN ONLY TO THOSE
EXPENDITURES WITHOUT WHICH THE INSOLVENT BUSINESS COULD NOT BE CARRIED
ON.  FOR EXAMPLE, THE TRUSTEE WOULD ALLOW FIRST PRIORITY TO CONTRACTS
ENTERED INTO BY THE RECEIVER BECAUSE SUPPLIERS, EMPLOYEES, LANDLORDS,
AND THE LIKE WOULD NOT ENTER INTO DEALINGS WITH A DEBTOR IN POSSESSION
OR A RECEIVER OF AN INSOLVENT BUSINESS UNLESS PRIORITY IS ALLOWED.  THE
TRUSTEE WOULD EXCLUDE ALL NEGLIGENCE CLAIMS, ON THE THEORY THAT FIRST
PRIORITY FOR THEM IS NOT NECESSARY TO ENCOURAGE THIRD PARTIES TO DEAL
WITH AN INSOLVENT BUSINESS, THAT FIRST PRIORITY WOULD REDUCE THE AMOUNT
AVAILABLE FOR THE GENERAL CREDITORS, AND THAT FIRST PRIORITY WOULD
DISCOURAGE GENERAL CREDITORS FROM ACCEPTING ARRANGEMENTS. 

IN OUR VIEW THE TRUSTEE HAS OVERLOOKED ONE IMPORTANT, AND HERE
DECISIVE, STATUTORY OBJECTIVE:  FAIRNESS TO ALL PERSONS HAVING CLAIMS
AGAINST AN INSOLVENT.  PETITIONER SUFFERED GRAVE FINANCIAL INJURY FROM
WHAT IS HERE AGREED TO HAVE BEEN THE NEGLIGENCE OF THE RECEIVER AND A
WORKMAN.  IT IS CONCEDED THAT, IN PRINCIPLE, PETITIONER HAS A RIGHT TO
RECOVER FOR THAT INJURY FROM THEIR "EMPLOYER," THE BUSINESS UNDER
ARRANGEMENT, UPON THE RULE OF RESPONDENT SUPERIOR.  /7/  RESPONDENTS
CONTEND, HOWEVER, THAT PETITIONER IS IN NO DIFFERENT POSITION FROM
ANYONE ELSE INJURED BY A PERSON WITH SCANT ASSETS:  ITS RIGHT TO
RECOVER EXISTS IN THEORY BUT IS NOT ENFORCEABLE IN PRACTICE. 

THAT, HOWEVER, IS NOT AN ADEQUATE DESCRIPTION OF PETITIONER'S
POSITION.  AT THE MOMENT WHEN AN ARRANGEMENT IS SOUGHT, THE DEBTOR IS
INSOLVENT.  ITS EXISTING CREDITORS HOPE THAT BY PARTIAL OR COMPLETE
POSTPONEMENT OF THEIR CLAIMS THEY WILL, THROUGH SUCCESSFUL
REHABILITATION, EVENTUALLY RECOVER FROM THE DEBTOR EITHER IN FULL OR IN
LARGER PROPORTION THAN THEY WOULD IN IMMEDIATE BANKRUPTCY.  HENCE THE
PRESENT PETITIONER DID NOT MERELY SUFFER INJURY AT THE HANDS OF AN
INSOLVENT BUSINESS: IT HAD AN INSOLVENT BUSINESS THRUST UPON IT BY
OPERATION OF LAW.  THAT BUSINESS WILL, IN ANY EVENT, BE UNABLE TO PAY
ITS FIRE DEBTS IN FULL.  BUT THE QUESTION IS WHETHER THE FIRE CLAIMANTS
SHOULD BE SUBORDINATED TO, SHOULD SHARE EQUALLY WITH, OR SHOULD COLLECT
AHEAD OF THOSE CREDITORS FOR WHOSE BENEFIT THE CONTINUED OPERATION OF
THE BUSINESS (WHICH UNFORTUNATELY LED TO A FIRE INSTEAD OF THE HOPED
FOR-REHABILITATION) WAS ALLOWED. 

RECOGNIZING THAT PETITIONER OUGHT TO HAVE SOME MEANS OF ASSERTING
ITS CLAIM AGAINST THE BUSINESS WHOSE OPERATION RESULTED IN THE FIRE,
RESPONDENTS HAVE SUGGESTED VARIOUS THEORIES AS ALTERNATIVES TO
"ADMINISTRATION EXPENSE" TREATMENT.  NONE OF THESE HAS CASE SUPPORT,
AND ALL SEEM TO US UNSATISFACTORY. 

SEVERAL NEED NOT BE PURSUED IN DETAIL.  THE TRUSTEE CONTENDS THAT IF
THE PRESENT CLAIMS ARE NOT PROVABLE IN BANKRUPTCY THEY WOULD SURVIVE AS
CLAIMS AGAINST THE SHELL.  HE ALSO SUGGESTS THAT PETITIONER MAY BE ABLE
TO RECOVER FROM THE RECEIVER PERSONALLY, OR OUT OF SUCH BOND AS HE
POSTED.  WITHOUT DECIDING WHETHER THESE POSSIBLE AVENUES ARE INDEED
OPEN, /8/  WE MERELY NOTE THAT THEY DO NOT SERVE THE PRESENT PURPOSE. 
THE "MASTER," LIABLE FOR THE NEGLIGENCE OF THE "SERVANT" IN THIS CASE
WAS THE BUSINESS OPERATING UNDER A CHAPTER XI ARRANGEMENT FOR THE
BENEFIT OF CREDITORS AND WITH THE HOPE OF REHABILITATION.  THAT BENEFIT
AND THAT REHABILITATION ARE WORTHY OBJECTIVES.  BUT IT WOULD BE
INCONSISTENT BOTH WITH THE PRINCIPLE OF RESPONDEAT SUPERIOR AND WITH
THE RULE OF FAIRNESS IN BANKRUPTCY TO SEEK THESE OBJECTIVES AT THE COST
OF EXCLUDING TORT CREDITORS OF THE ARRANGEMENT FROM ITS ASSETS, OR
TOTALLY SUBORDINATING THE CLAIMS OF THOSE ON WHOM THE ARRANGEMENT IS
IMPOSED TO THE CLAIMS OF THOSE FOR WHOSE BENEFIT IT IS INSTITUTED. 

THE UNITED STATES, AS A RESPONDENT, SUGGESTS INSTEAD THAT TORT
CLAIMS ARISING DURING AN ARRANGEMENT ARE, IF PROPERLY PRESERVED,
PROVABLE GENERAL CLAIMS IN ANY SUBSEQUENT BANKRUPTCY UNDER SEC. 63A OF
THE ACT, 11 U.S.C. 103(A).  THAT SECTION READS AS FOLLOWS: 

     "DEBTS OF THE BANKRUPT MAY BE PROVED AND ALLOWED AGAINST HIS

  ESTATE WHICH ARE FOUNDED UPON . . . (7) THE RIGHT TO RECOVER

  DAMAGES IN ANY ACTION FOR NEGLIGENCE INSTITUTED PRIOR TO AND

  PENDING AT THE TIME OF THE FILING OF THE PETITION IN BANKRUPTCY .

  . . ." 

IT IS AGREED BY ALL PARTIES THAT THIS SECTION WILL NOT AVAIL THE
PRESENT PETITIONER WHO, IT APPEARS, DID NOT FILE SUIT ON ITS CLAIM
PRIOR TO THE BANKRUPTCY PROPER.  THIS, THE UNITED STATES ARGUES, IS ITS
OWN FAULT:  IT COULD HAVE FILED SUIT AFTER THE TORT, DURING THE
ARRANGEMENT, AND BEFORE THE PETITION IN BANKRUPTCY, AND THUS PRESERVED
ITS CLAIM. 

THIS WAS NOT THE VIEW OF THE DISTRICT COURT.  SECTION 302 OF THE
ACT, THE SECTION WHICH PROVIDES THAT CHAPTERS I TO VII OF THE ACT
(INCLUDING SECS. 63 AND 64) SHALL BE APPLICABLE TO ARRANGEMENTS UNDER
CHAPTER XI AS WELL AS STRAIGHT BANKRUPTCIES, CONTAINS THE FOLLOWING
PROVISION: 

"FOR THE PURPOSES OF SUCH APPLICATION THE DATE OF THE FILING OF THE
PETITION IN BANKRUPTCY SHALL BE TAKEN TO BE THE DATE OF THE FILING OF
AN ORIGINAL PETITION UNDER SECTION 722 OF THIS TITLE (SEC. 322 OF THE
ACT, 11 U.S.C. 722, WHICH PROVIDES FOR FILING ORIGINAL PETITIONS FOR
ARRANGEMENTS) . . . ."  SECTION 378(2) OF THE ACT, 11 U.S.C. 778(2),
DEALING WITH PROCEDURE WHEN BANKRUPTCY ENSUES UPON AN ARRANGEMENT,
PROVIDES THAT 

"IN THE CASE OF A PETITION FILED UNDER SECTION 722 OF THIS TITLE,
THE PROCEEDING SHALL BE CONDUCTED, SO FAR AS POSSIBLE, IN THE SAME
MANNER AND WITH LIKE EFFECT AS IF A VOLUNTARY PETITION FOR ADJUDICATION
IN BANKRUPTCY HAD BEEN FILED AND A DECREE OF ADJUDICATION HAD BEEN
ENTERED ON THE DAY WHEN THE PETITION UNDER THIS CHAPTER (I.E., THE
PETITION FOR AN ARRANGEMENT) WAS FILED . . . ."  THE EFFECT OF THESE
TWO SECTIONS IS THAT, WHETHER OR NOT AN ARRANGEMENT IS SUPERSEDED BY
BANKRUPTCY, FOR PURPOSES OF APPLY SEC. 63 TO ARRANGEMENTS THE DATE OF
THE ARRANGEMENT PETITION IS DEEMED TO BE THE DATE OF A PETITION IN
BANKRUPTCY. 

FROM THIS FACT, THE DISTRICT COURT CONCLUDED, AND PETITIONER NOW
ARGUES, THAT A PERSON NEGLIGENTLY INJURED DURING THE COURSE OF AN
ARRANGEMENT COULD NEVER HAVE A PROVABLE GENERAL CLAIM UNDER SEC. 63A. 
FOR THAT SECTION REQUIRES THAT SUIT BE FILED BEFORE THE FILING OF THE
PETITION IN BANKRUPTCY, AND, WHEN THE SECTION IS APPLIED TO AN
ARRANGEMENT, THE DATE OF THE FILING OF THE PETITION IN BANKRUPTCY IS
DEEMED TO BE THE DATE OF THE FILING OF THE ARRANGEMENT PETITION. 

IN RESPONSE, THE UNITED STATES NOTES THAT SEC. 378(2) IS QUALIFIED
BY THE WORDS "SO FAR AS POSSIBLE."  THE GOVERNMENT THEREFORE SUGGESTS A
HOLDING THAT IT IS NOT "POSSIBLE" TO TREAT THE DATE OF THE ARRANGEMENT
PETITION AS THE CRITICAL DATE IN A CASE SUCH AS THE PRESENT, BECAUSE
THAT POINT IN TIME ANTEDATES THE TORT.  ON THAT THEORY, IT IS SUGGESTED
THAT, FOR PRESENT PURPOSES, SEC. 63A'S REFERENCE TO THE DATE OF FILING
THE BANKRUPTCY PETITION BE TAKEN TO REFER TO THE DATE OF THE PETITION
IN BANKRUPTCY PROPER. 

WE DO NOT FIND THIS AN ACCEPTABLE ALTERNATIVE.  THE ONLY THING THAT
RENDERS IT NOT "POSSIBLE" TO FOLLOW THE STATUTORY SCHEME AND MELD THE
ARRANGEMENT INTO THE BANKRUPTCY IS THE GOVERNMENT'S INSISTENCE THAT
PETITIONER'S CLAIM MUST BE HELD TO HAVE BEEN PROVABLE UNDER SEC. 63A IF
ONLY PETITIONER HAD TAKEN THE PROPER STEPS.  THERE IS NOTHING
"IMPOSSIBLE" ABOUT CONSTRUING THE SECTIONS HERE INVOLVED TO MEAN WHAT
THEY SAY:  A TORT CLAIM ARISING DURING AN ARRANGEMENT, LIKE A TORT
CLAIM ARISING DURING A BANKRUPTCY PROCEEDING PROPER, IS NOT PROVABLE AS
A GENERAL CLAIM IN THE BANKRUPTCY. 

THERE ARE ADDITIONAL REASONS FOR READING THE SECTIONS LITERALLY IN
THIS CASE.  IN THE FIRST PLACE, THE UNITED STATES' SUGGESTION WILL NOT
WORK WHERE BANKRUPTCY DOES NOT ENSUE UPON THE ARRANGEMENT, FOR THEN
THERE IS NO LATER DATE THAT CAN BE USED AS THE CUTOFF FOR 63A(7)
CLAIMS.  IN THAT CASE, IT WOULD BE NECESSARY EITHER TO HOLD THAT A TORT
CLAIM ARISING DURING AN ARRANGEMENT IS A PROVABLE GENERAL CLAIM IF
BANKRUPTCY ENSUES BUT IS NOT A PROVABLE GENERAL CLAIM IN THE
ARRANGEMENT ITSELF, OR TO HOLD THAT THERE IS NO TOME LIMIT ON FILING
SUIT SO LONG AS THE ARRANGEMENT REMAINS AN ARRANGEMENT.  NOTHING IN THE
QUALIFYING LANGUAGE OF SEC. 378(2) GRANTS PERMISSION TO READ THE TIME
LIMITATION OUT OF SEC. 63A(7) OF THE ACT. 

AN EVEN GREATER DIFFICULTY IS PRESENTED BY THE FACT THAT SEC. 63A
REFERS TO PROVABLE DEBTS OF THE BANKRUPT, AND DISTINGUISHES THE
BANKRUPT FROM HIS ESTATE.  SECTION 302 PROVIDES THAT IN APPLYING SEC.
63A TO ARRANGEMENTS, THE WORD "BANKRUPTS" SHALL BE DEEMED TO RELATE
ALSO TO "DEBTORS."  THUS THE NATURAL READING OF SEC. 63A, WHEN APPLIED
TO ARRANGEMENTS AS IF THEY WERE BANKRUPTCIES, IS THAT IN ORDER TO BE
PROVABLE UNDER SEC. 63A(7) A TORT CLAIM MUST BE A CLAIM AGAINST THE
DEBTOR AND NOT AGAINST THE ESTATE IN A CHAPTER XI ARRANGEMENT. 
RESPONDENTS MIGHT ARGUE THIS QUESTIN AS THEY DO THE TIME LIMITATION:
THAT IT WOULD BE PREFERABLE TO DEEM THE WORDS "DEBTS OF THE BANKRUPT"
TO MEAN "DEBTS OF THE DEBTOR OR OF HIS ESTATE ARISING UP TO THE TIME OF
BANKRUPTCY PROPER."  THIS ARGUMENT IS OPEN, HOWEVER, TO THE SAME
OBJECTIONS AS THE ARGUMENT ON TIME LIMITATIONS:  IT IS A STRAINED
READING OF THE STATUTE WHICH MAKES NO ALLOWANCE FOR THE OCCASIONS WHEN
STRAIGHT BANKRUPTCY DOES NOT ENSUE.     IN ANY EVENT, WE SEE NO REASON
TO INDULGE IN A STRAINED CONSTRUCTION OF THE RELEVANT PROVISIONS, FOR
WE ARE PERSUADED THAT IT IS THEORETICALLY SOUNDER, AS WELL AS
LINGUISTICALLY MORE COMFORTABLE, TO TREAT TORT CLAIMS ARISING DURING AN
ARRANGEMENT AS ACTUAL AND NECESSARY EXPENSES OF THE ARRANGEMENT RATHER
THAN DEBTS OF THE BANKRUPT.  IN THE FIRST PLACE, IN CONSIDERING WHETHER
THOSE INJURED BY THE OPERATION OF THE BUSINESS DURING AN ARRANGEMENT
SHOULD SHARE EQUALLY WITH, OR RECOVER AHEAD OF, THOSE FOR WHICH BENEFIT
THE BUSINESS IS CARRIED ON, THE LATTER SEEMS MORE NATURAL AND JUST. 
EXISTING CREDITORS ARE, TO BE USRE, IN A DILEMMA NOT OF THEIR OWN
MAKING, BUT THERE IS NO OBVIOUS REASON WHY THEY SHOULD BE ALLOWED TO
ATTEMPT TO ESCAPE THAT DILEMMA AT THE RISK OF IMPOSING IT ON OTHERS
EQUALLY INNOCENT. 

MORE DIRECTLY IN POINT IS THE POSSIBILITY OF INSURANCE.  AN
ARRANGEMENT MAY PROVIDE FOR SUITABLE COVERAGE, AND THE COURT BELOW
RECOGNIZED THAT THE COST OF INSURANCE AGAINST TORT CLAIMS ARISING
DURING AN ARRANGEMENT IS AN ADMINISTRATIVE EXPENSE PAYABLE IN FULL
UNDER SEC.64A(1) BEFORE DIVIDENDS TO GENERAL CREDITORS.  CREDITORS. 
/9/  IT IS OF COURSE OBVIOUS THAT PROPER INSURANCE PREMIUMS MUST BE
GIVEN PRIORITY, ELSE INSURANCE COULD NOT BE OBTAINED; AND IF A RECEIVER
OR DEBTOR IN POSSESSION IS TO BE ENCOURAGED TO OBTAIN INSURANCE IN
ADEQUATE AMOUNTS, THE CLAIMS AGAINST WHICH INSURANCE IS OBTAINED SHOULD
BE POTENTIALLY PAYABLE IN FULL.  IN THE PRESENT CASE, IT IS ARGUED, THE
FIRE WAS OF SUCH INCREDIBLE MAGNITUDE THAT ADEQUATE INSURANCE PROBABLY
COULD NOT HAVE BEEN OBTAINED AND IN ANY EVENT WOULD HAVE BEEN FOOLISH;
THIS MAY BE TRUE, AS IT IS ALSO TRUE THAT ALLOWANCE OF A FIRST PRIORITY
TO THE FIRE CLAIMANTS HERE WILL STILL ONLY MEAN RECOVERY BY THEM OF A
FRACTION OF THEIR DAMAGES.  IN THE USUAL CASE WHERE DAMAGES ARE WITHIN
INSURABLE LIMITS, HOWEVER, THE RULE OF FULL RECOVERY FOR TORTS IS
DEMONSTRABLY SOUNDER. 

ALTHOUGH THERE APPEAR TO BE NO CASES DEALING WITH TORT CLAIMS
ARISING DURING CHAPTER XI PROCEEDINGS, DECISIONS IN ANALOGOUS CASES
SUGGEST THAT "ACTUAL AND NECESSARY COSTS" SHOULD INCLUDE COSTS
ORDINARILY INCIDENT TO OPERATION OF A BUSINESS, AND NOT BE LIMTIED TO
COSTS WITHOUT WHICH REHABILITATION WOULD BE IMPOSSIBLE.  IT HAS LONG
BEEN THE RULE OF EQUITY RECEIVERSHIPS THAT TORTS OF THE RECEIVERSHIP
CREATE CLAIMS AGAINST THE RECEIVERSHIP ITSELF; /10/  IN THOSE CASES THE
STATUTORY LIMITATION TO "ACTUAL AND NECESSARY COSTS" IS NOT INVOLVED,
BUT THE EXPLICIT RECOGNITION EXTENDED TO TORT CLAIMS IN THOSE CASES
WEIGHS HEAVILY IN FAVOR OF CONSIDERING THEM WITHIN THE GENERAL CATEGORY
OF COSTS AND EXPENSES. 

IN SOME CASES ARISING UNDER CHAPTER XI IT HAS BEEN RECOGNIZED THAT
"ACTUAL AND NECESSARY COSTS" ARE NOT LIMITED TO THOSE CLAIMS WHICH THE
BUSINESS MUST BE ABLE TO PAY IN FULL IF IT IS TO BE ABLE TO DEAL AT
ALL.  FOR EXAMPLE, STATE AND FEDERAL TAXES ACCRUING DURING A
RECEIVERSHIP HAVE BEEN HELD TO BE ACTUAL AND NECESSARY COSTS OF AN
ARRANGEMENT.  /11/  THE UNITED STATES, RECOGNIZING AND SUPPORTING THESE
HOLDINGS, AGREES WITH PETITIONER THAT COSTS THAT FORM "AN INTEGRAL AND
ESSENTIAL ELEMENT OF THE CONTINUATION OF THE BUSINESS" ARE NECESSARY
EXPENSES EVEN THOUGH PRIORITY IS NOT NECESSARY TO THE CONTINUATION OF
THE BUSINESS.  THUS THE GOVERNMENT SUGGESTS THAT "AN INJURY TO A MEMBER
OF THE PBULIC-- A BUSINESS INVITEE-- WHO WAS INJURED WHILE ON THE
BUSINESS PREMISES DURING AN ARRANGEMENT WOULD PRESENT A COMPLETELY
DIFFERENT PROBLEM (I.E., COULD QUALIFY FOR FIRST PRIORITY)" ALTHOUGH IT
IS NOT SUGGESTED THAT PRIORITY IS NEEDED TO ENCOURAGE INVITEES TO ENTER
THE PREMISES. 

THE UNITED STATES ARGUES, HOWEVER, THAT EACH TORT CLAIM "MUST BE
ANALYZED IN ITS OWN CONTEXT."  APART FROM THE FACT THAT IT HAS BEEN
ASSUMED THROUGHOUT THIS CASE THAT ALL 147 CLAIMANTS WERE ON AN EQUAL
FOOTING AND IT IS NOT VERY HELPFUL TO SUGGEST HERE FOR THE FIRST TIME A
RULE BY WHICH LESSEES, INVITEEES, AND NEIGHBORS HAVE DIFFERENT RIGHTS,
WE PERCEIVE NO DISTINCTION:  NO PRINCIPLE OF TORT LAW OF WHICH WE ARE
AWARE OFFERS GUIDANCE FOR DISTINGUISHING, WITHIN THE CLASS OF TORTS
COMMITTED BY RECEIVERS WHILE ACTING IN FURTHERANCE OF THE BUSINESS,
BETWEEN THOS "INTEGRA" TO THE BUSINESS AND THOSE THAT ARE NOT.  /12/ 

WE HOLD THAT DAMAGES RESULTING FROM THE NEGLIGENCE OF A RECEIVER
ACTING WITHIN THE SCOPE OF HIS AUTHORITY AS RECEIVER GIVE RISE TO
"ACTUAL AND NECESSARY COSTS" OF A CHAPTER XI ARRANGEMENT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

   IT IS SO ORDERED. 

/1/  SECTION 302 OF THE ACT, AS SET FORTH IN 11 U.S.C. 702, PROVIDES
IN PART AS FOLLOWS: 

"THE PROVISIONS OF CHAPTERS 1-7 OF THIS TITLE SHALL, INSOFAR AS THEY
ARE NOT INCONSISTENT WITH OR IN CONFLICT WITH THE PROVISIONS OF THIS
CAHPTER (XI), APPLY IN PROCEEDINGS UNDER THIS CHAPTER."  SECTION
64A(1), A PART OF CHAPTER VII AND HENCE APPLICABLE TO CHAPTER XI
ARRANGEMENTS BY VIRTUE OF SEC. 302, ITSELF PROVIDES THAT WHERE, AS
HERE, ORDINARY BANKRUPTCY ENSUES UPON A PROCEEDING UNDER ANOTHER
CHAPTER, "THE COSTS AND EXPENSES OF ADMINISTRATION INCURRED IN THE
ENSUING BANKRUPTCY PROCEEDING SHALL HAVE PRIORITY IN ADVANCE OF PAYMENT
OF THE UNPAID COSTS AND EXPENSES OF ADMINISTRATION . . . INCURRED IN
THE SUPERSEDED PROCEEDING . . . ."  WE DEAL HERE, THEREFORE, WITH A
CLAIM THAT WILL IN ANY EVENT BE SUBORDINATE TO ADMINISTRATION EXPENSES
OF THE BANKRUPTCY PROPER. 

/2/  THUS THE MERITS OF NEGLIGENCE CLAIMS HAVE NOT BEEN ADJUDICATED,
AND, OF COURSE, WE INTIMATE NO VIEWS UPON THEM. 

/3/  SEE INFRA, AT 480. 

/4/  THIS IS EXPLICITLY PROVIDED IN SEC. 302. 

/5/  COMPARE 3 COLLIER, BANKRUPTCY 62.15: 

"SECTION 2A(5) EMPOWERS THE COURT TO AUTHORIZE THE BUSINESS OF
BANKRUPTS TO BE CONDUCTED FOR A LIMITED PERIOD BY A MARSHAL, RECEIVER
OR TRUSTEE.  SUCH CONTINUED OPERATION OF A BUSINESS IS IN SUBSTANCE A
MEANS OF PRESERVATION, NAMELY AS A GOING CONCERN, SOMETIMES WITH A VIEW
TO REHABILITATION . . . . EXPENDITURE INCURRED BY CONTINUED OPERATION
OF A BANKRUPT'S BUSINESS WILL, THEREFORE, ON PRINCIPLE, FOLLOW THE
RULES . . . AS TO EXPENDITURE IN CONNECTION WITH PRESERVATION.  THE
DIFFERENCE, IF ANY, LIES IN THE GREATER VARIETY OF TYPES OF EXPENSES .
. . ."  (FOOTNOTES OMITTED.) 

/6/  THE CASE THAT PETITIONER FINDS MOST CLOSELY IN POINT IS VASS V.
CONRON BROS., 59 F.2D 969.  VASS WAS THE RECEIVER OF CERTAIN BANKRUPTS
WHO HAD BEEN DEALERS IN COLD MEATS AND HAD LEASED SPACE IN THEIR COLD
STORAGE PLANT TO CONRON.  VASS CONFIRMED THE LEASE, ONE OF WHOSE
COVENANTS PROVIDED THAT THE LESSOR WOULD MAINTAIN SUFFICIENT
REFRIGERATION; THEREAFTER, VASS ALLEGEDLY FAILED TO REFRIGERATE
PROPERLY, DAMAGING STORED PROPERTY OF THE LESSEE.  THE LESSEE THEN
ATTEMPTED TO SUE VASS IN A STATE COURT, ALLEGING BREACH OF THE COVENANT
AND AND NEGLIGENCE.  VASS, HOWEVER, OBTAINED AN INJUNCTION FROM THE
BANKRUPTCY COURT AGAINST THE STATE ACTION; THE COURT OF APPEALS
AFFIMRED IN AN OPINION BY L. HAND. 

THE ISSUE IN VASS WAS WHETHER THE STATE ACTION WOULD CONFLICT WITH
THE BANKRUPTCY COURT'S JURISDICTION OVER THE ESTATE.  IN RULING THAT
THE ACTION COULD NOT BE MAINTAINED, JUDGE HAND CONCLUDED, INTER ALIA,
THAT THE ACTION DID NOT FALL WITHIN THE FEDERAL STATUTORY PERMISSION
FOR ACTIONS BASED ON ANY LIABILITY ARISING OUT OF "ANY ACT OR
TRANSACTION" OF THE TRUSTEE "IN CARRYING ON THE BUSINESS CONNECTED
WITH" THE PROPERTY ENTRUSTED TO HIM.  JUDGE HAND CONCLUDED, ON SPECIAL
FACTS, THAT THE TRUSTEE IN CONFIRMING THE LEASE WAS MERELY HOLDING
MATTERS IN STATU QUO, NOT CONTINUING THE BUSINESS.  CONSEQUENTLY, HE
SAID THAT "THE LIQUIDATION OF THE LESSEE'S RESULTING DAMAGES WAS AS
MUCH A PART OF THE USUAL ADMINISTRATION IN BANKRUPTCY, AS THAT OF THE
PAY OF ACCOUNTANTS, CUSTODIANS OR OTHER ASSISTANTS."  59 F.2D, AT 971. 
IN CONTEXT, THE LANGUAGE JUST QUOTED IS OF LITTLE ASSISTANCE IN THE
PRESENT CASE. 

/7/  28 U.S.C. 959(B) PROVIDES AS FOLLOWS: 

"A TRUSTEE, RECEIVER OR MANAGER APPOINTED IN ANY CAUSE PENDING IN ANY
COURT OF THE UNITED STATES, INCLUDING A DEBTOR IN POSSESSION, SHALL
MANAGE AND OPERATE THE PROPERTY IN HIS POSSESSION AS SUCH TRUSTEE,
RECEIVER OR MANAGER ACCORDING TO THE REQUIREMENTS OF THE VALID LAWS OF
THE STATE IN WHICH SUCH PROPERTY IS SITUATED, IN THE SAME MANNER THAT
THE OWNER OR POSSESSOR THEREOF WOULD BE BOUND TO DO IF IN POSSESSION
THEREOF."  THIS PROVISION OF COURSE ESTABLISHES ONLY THE PRINCIPLE OF
LIABILITY UNDER STATE TORT AND AGENCY LAW, AND DOES NOT DECIDE FROM
WHOM OR WITH WHAT PRIORITY TORT CLAIMS MAY BE COLLECTED.  IN MCNULTA V.
LOCHRIDGE, 141 U.S. 327, 332, THIS COURT HAD OCCASION TO NOTE THAT
"(ACTIONS AGAINST THE RECEIVER ARE IN LAW ACTIONS AGAINST THE
RECEIVERSHIP, OR THE FUNDS IN THE HANDS OF THE RECEIVER, AND HIS
CONTRACTS, MISFEASANCES, NEGLIGENCES AND LIABILITIES ARE OFFICIAL AND
NOT PERSONAL, AND JUDGMENTS AGAINST HIM AS RECEIVER ARE PAYABLE ONLY
FROM THE FUNDS IN HIS HANDS."  THIS STATEMENT OF COURSE MEANS ONLY THAT
TORTS OF A RECEIVER ARE IN PRINCIPLE COMPENSABLE OUT OF THE ASSETS OF
THE ESTATE IN RECEIVERSHIP AND, AGAIN, DOES NOT INDICATE WHETHER SUCH
CLAIMS SHALL BE PAID PRIOR TO, EQUALLY WITH, OR AFTER OTHER CLAIMS
AGAINST THE RECEIVERSHIP. 

WE DO NOT HERE REACH, AND DO NOT MEAN TO REAFFIRM THE IMPLICATIN OF
MCNULTA THAT AN ACTION AGAINST THE RECEIVEF PERSONALLY, OR AGAINST THE
DEBTOR AFTER TERMINATION OF THE RECEIVERSHIP, WOULD NEVER LIE UNDER ANY
CIRCUMSTANCES.  AS TO SUCH QUESTIONS, THE STATEMENT OF MCNULTA IS
DICTUM. 

/8/  SEE N. 7, SUPRA. 

/9/  370 F.2D 624, 628. 

/10/  E.G., TEXAS & PACIFIC R. CO. V. BLOOM, 164 U.S. 636; BERETH V.
SPARKS, 51 F.2D 441; SEC. 77(N), 11 U.S.C. 205(N), ACCORDING PARTICULAR
RECOGNITION TO THE TORT CLAIMS OF RAILROAD EMPLOYEES, DOES NOT, AS THE
DISSENT SUGGESTS, MEAN THAT OTHER TORT CLAIMS ARE NOT CHARGEABLE
AGAINST A RECEIVERSHIP ITSELF.  RATHER, AS THE UNITED STATES CONCEDES,
"TORT CLAIMS ARISING DURING A RECEIVERSHIP OR REORGANIZATION PERIOD . .
. HAVE GENERALLY BEEN GIVEN THE PRIORITY STATUS OF GENERAL
ADMINISTRATIVE EXPENSES." 

/11/  E.G., NICHOLAS V. UNITED STATES, 384 U.S. 678.  AT PAGES 687
688 WE STATED: 

"TAXES INCURRED IN THE PRE-ARRANGEMENT PERIOD MUST BE CONTENT WITH A
FOURTH PRIORITY UNDER SEC. 64A(4) OF THE BANKRUPTCY ACT.  ON THE OTHER
HAND, TAXES INCURRED DURING THE ARRANGEMENT PERIOD ARE EXPENSES OF
CHAPTER XI PROCEEDINGS AND ARE THEREFORE TECHNICALLY A PART OF THE
FIRST PRIORITY UNDER SEC. 64A(1)."  THE COURT ALSO RULED THAT INTEREST
ACCURING ON SUCH CLAIMS DURING THE ARRANGEMENT PERIOD WOULD ALSO FALL
WITHIN SEC. 64A(1).  IBID.  SEE ALSO BOTELER V. INGELS, 308 U.S. 57. 

/12/  COMPARE 3 COLLIER, BANKRUPTCY 62.15: 

"AMONG OTHER EXPENSES INCIDENT TO CONDUCTING A BUSINESS AND
THEREFORE ALLOWABLE AS ADMINSITRATIVE EXPENDITURE MAY BE . . . PAYMENTS
ON CLAIMS FOR PERSONAL INJURIES INFLICTED IN THE OPERATION OF A
BUSINESS, RENT, INSURANCE, COMMISSIONS, COST OF RAW MATERIAL OR
MERCHANDISE PURCHASED FOR MANUFACTURING OR RESALE AND ANY OTHER EXPENSE
ORDINARILY ATTENDANT UPON ACTIVE PARTICIPATION IN COMMERCIAL OR
INDUSTRIAL LIFE."  (FOOTNOTES OMITTED.) 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

IN MY OPINION, THE COURT HAS MISINTERPRETED THE TERM "COSTS AND
EXPENSES OF ADMINISTRATION" AS INTENDED BY SEC. 64A(1) OF THE
BANKRUPTCY ACT AND, BY DEVIATING FROM THE NATURAL MEANING OF THOSE
WORDS, HAS GIVEN THE ADMINISTRATIVE COST PRIORITY AN UNWARRANTED
APPLICATION.  THE EFFECT OF THE HOLDING IN THIS CASE IS THAT THE
NEGLIGENCE OF A WORKMAN MAY COMPLETELY WIPE OUT THE CLAIMS OF ALL OTHER
CLASSES OF PUBLIC AND PRIVATE CREDITORS.  I DO NOT BELIEVE CONGRESS
INTENDED TO ACCORD TORT CLAIMANTS SUCH A PREFERENCE.  ACCORDINGLY, I
WOULD AFFIRM THE JUDGMENT BELOW. 

ON OTHER OCCASIONS, THIS COURT HAS OBSERVED THAT "(THE THEME OF THE
BANKRUPTCY ACT IS 'EQUALITY OF DISTRIBUTION' . . .; AND IF ONE CLAIMANT
IS TO BE PREFERRED OVER OTHERS, THE PURPOSE SHOULD BE CLEAR FROM THE
STATUTE."  NATHANSON V. NLRB, 344 U.S. 25, 29 (1952); SEE SAMPSELL V.
IMPERIAL PAPER CORP., 313 U.S. 215, 219 (1941).  MORE PARTICULARLY, THE
ACT EXPRESSLY DIRECTS THAT ELIGIBLE NEGLIGENCE CLAIMS ARE TO SHARE
EQUALLY WITH THE UNSECURED CLAIMS IN A PRO RATA DISTRIBUTION OF THE
DEBTOR'S NONEXEMPT ASSETS.  BANKRUPTCY ACT SECS. 63A(7), 65A, 11 U.S.C.
103(A)(7), 105(A).  DEPARTING FROM THIS STATUTORY SCHEME, THE COURT
TODAY SINGLES OUT ONE CLASS OF TORT CLAIMS FOR SPECIAL TREATMENT. 
AFTER TODAY'S DECISION, THE STATUS OF A TORT CLAIMANT DEPENDS ENTIRELY
UPON WHETHER HE IS FORTUNATE ENOUGH TO HAVE BEEN INUURED AFTER RATHER
THAN BEFORE A RECEIVER HAS BEEN APPOINTED.  AND IF THE CLAIMANT IS IN
THE SELECT CLASS, HE MAY BE PERMITTED TO EXHAUST THE ESTATE TO THE
EXCLUSION OF THE GENERAL CREDITORS AS WELL AS OF THE WAGE CLAIMS AND
GOVERNMENT TAX CLAIMS FOR WHICH CONGRESS HAS SHOWN AN UNMISTAKABLE
PREFERENCE.  /1/  IN MY VIEW, THIS RESULT FRUSTRATES RATHER THAN SERVES
THE UNDERLYING PURPOSES OF A CHAPTER XI PROCEEDING, AND I WOULD NOT
REACH IT WITHOUT A CLEAR INDICATION THAT CONGRESS SO INTENDED. 

CONGRESS ENACTED CHAPTER XI AS AN ALTERNATIVE TO STRAIGHT BANKRUPTCY
FOR INDIVIDUALS AND SMALL BUSINESS WHICH MIGHT BE SUCCESSFULLY
REHABILITATED INSTEAD OF BEING SUBJECTED TO ECONOMICALLY WASTEFUL
LIQUIDATION.  THE SUCCESS OF A CHAPTER XI PROCEEDING DEPENDS LARGELY ON
TWO FACTORS: FIRST, WHETHER CREDITORS WILL TAKE THE CHANCE OF
PERMITTING AN ARRANGEMENT; SECOND, WHETHER OTHER BUSINESSES WILL
CONTINUE TO DEAL WITH THE DISTRESSED BUSINESS.  WITH RESPECT TO THE
FIRST OF THESE CONSIDERATIONS, TODAY'S DECISION WILL UNDOUBTEDLY
DISCOURAGE CREDITORS FROM PERMITTING ARRANGEMENTS, BECAUSE IT SUBJECTS
THEM TO UNPREDICTABLE AND PROBABLY UNINSURABLE TORT LIABILITY.  I DO
NOT BELIEVE THE STATUTORY LANGUAGE REQUIRES SUCH AN INTERPRETATION.  I
WOULD CONSTRUE SEC. 64A(1) WITH REFERENCE TO THE SECOND CONSIDERATION
MENTIONED ABOVE.  IN MY OPINION, THE COURT WOULD REACH A RESULT MORE IN
LINE WITH CONGRESSIONAL INTENT AND THE BANKRUPTCY ACT GENERALLY BY
REGARDING AS ADMINISTRATIVE COSTS ONLY THOSE COSTS REQUIRED FOR A
SMOOTH AND SUCCESSFUL ARRANGEMENT.  ACCORDINGLY, THE ADMINISTRATIVE
COST PRIORITY SHOULD BE VIEWED AS A GUARANTY TO THE RECEIVER AND THOSE
WHO DEAL WITH OR ARE EMPLOYED BY HIM THAT THEY WILL BE PAID FOR THEIR
GOODS AND SERVICES.  ANY BROADER INTERPRETATION WILL DISCOURAGE
CREDITORS FROM PERMITTING USE OF THE REHABILITATIVE MACHINERY OF
CHAPTER XI AND TEND TO FORCE DISTRESSED BUSINESSES INTO STRAIGHT
BANKRUPTCY. 

IT IS EQUITABLE, THE COURT BELIEVES, THAT THE GENERAL CREDITORS (AND
WAGE AND TAX CLAIMANTS) BEAR THE LOSS IN THIS CASE BECAUSE THEY HAVE
"THRUST" AN INSOLVENT BUSINESS UPON PETITIONER FOR THEIR OWN BENEFIT. 
I RESPECTFULLY SUBMIT THAT THIS IS A MOST UNFAIR CHARACTERIZATION OF
ARRANGEMENTS.  AN ECONOMICALLY DISTRESSED BUSINESSMAN SEEKS AN
ARRANGEMENT FOR HIS OWN AND NOT FOR HIS CREDITORS' BENEFITS.  /2/  OF
COURSE THE CREDITORS WILL BENEFIT IF THE ARRANGEMENT IS SUCCESSFUL,
JUST AS THEY WOULD HAVE BENEFITED IF THE BUSINESSMAN HAD BEEN
SUCCESSFUL WITHOUT RESORTING TO AN ARRANGEMENT.  BUT A BUSINESS IN
ARRANGEMENT IS NO MORE THRUST ON THE PUBLIC THAN IS ANY OTHER BUSINESS
ENTERPIRSE WHICH IS CONDUCTED FOR THE MUTUAL PROSPERITY OF THE OWNERS,
THE WAGE EARNERS AND THE CREDITORS.  REALISTICALLY, THE ONLY DIFFERENCE
IS THAT A BUSINESS ADMINISTERED UNDER CHAPTER XI HAS NOT BEEN
PROSPEROUS.  IF THE ARRANGEMENT IS SUCCESSFUL, THE OWNERS, WAGE EARNERS
AND CREDITORS WILL ALL BENEFIT; IF IT IS NOT, THEY WILL ALL BE
INJURED.  THUS, I WOULD NOT DISTINGUISH IN THIS CASE BETWEEN PETITIONER
AND THE OTHER GENERAL CREDITORS, NONE OF WHOM WAS RESPONSIBLE FOR THE
CATASTROPHE FOR WHICH ALL OF THEM MUST SUSTAIN SOME LOSS.  INSTEAD, IN
DECIDING THIS CASE, I WOULD ADHERE TO THE ACT'S BASIC THEME OF EQUALITY
OF DISTRIBUTION. 

THE COURT STATES THT ITS DECISION WILL ENCOURAGE CHAPTER XI
RECEIVERS TO OBTAIN "ADEQUATE" INSURANCE.  THE COURT FAIRLY WELL
CONCEDES, HOWEVER, THAT IN THIS CASE "ADEQUATE" INSURANCE "PROBABLY
COULD NOT HAVE BEEN OBTAINED AND IN ANY EVENT WOULD HAVE BEEN
FOOLISH."  IN OTHER WORDS, SO FAR AS THIS COURT KNOWS, THE INSURANCE
TAKEN OUT BY THE RECEIVER IN THIS CASE WAS IN FACT "ADEQUATE," IN THE
SENSE THAT NO REASONABLE RECEIVER COULD OR SHOULD OBTAIN FIRE INSURANCE
IN THE AMOUNT OF $3,500,000 ON THE ASSUMPTION THAT HIS WORKMAN MIGHT
ACCIDENTALLY CAUSE A FIRE OF THE PROPORTIONS WHICH OCCURRED HERE. 
MOREOVER, QUITE APART FROM THE CASE AT BAR, THERE IS ABSOLUTELY NO
INDICATION THAT TODAY'S DECISION IS NEEDED TO ENCOURAGE RECEIVERS TO
OBTAIN INSURANCE.  /3/  I SEE NO BASIS IN THE ACT OR I SOUND POLICY FOR
A RULING THAT THE CREDITORS OF AN ESTATE UNDER A CHAPTER XI ARRANGEMENT
BECOME INVOLUNTARY INSURERS AGAINST A LIABILITY WHICH PROBABLY WOULD
NOT AND SHOULD NOT BE INSURABLE BY MORE TRADITIONAL MEANS. 

THE COURT ALSO RELIES, IN MY OPINION MISTAKENLY, UPON ANALOGIES TO
EQUITY RECEIVERSHIPS.  IN REORGANIZATIONS UNDER CHAPTER X /4/  AND SEC.
77, /5/  CONGRESS HAS DIRECTED THE COURTS TO APPLY THE RULES OF
PRIORITY DEVELOPED IN EQUITY.  /6/  HOWEVER, ARRANGEMENTS UNDER CHAPTER
XI ARE GOVERNED STRICTLY BY THE STATUTORY PRIORITIES FIXED BY SEC.
64A.  THESE STATUTORY PRIORITIES DIFFER IN MANY RESPECTS FROM THOSE
APPLICABLE TO EQUITY RECEIVERSHIPS, /7/  AND THEY HAVE BEEN AMENDED
REPEATEDLY TO NARROW THE CLASS OF CLAIMANTS WHICH MAY PARTICIPATE AHEAD
OF THE GENERAL CREDITORS.  /8/  FURTHERMORE, EVEN IN THE CASE OF SEC.
77 REORGANIZATIONS WHERE THE PRIORITIES DEVELOPED IN EQUITY ARE
CONTROLLING, CONGRESS HAS SPECIFICALLY PROVIDED FOR ONE EXCEPTION TO
THE RULE THAT TORT CLAIMANTS ARE TO BE TREATED AS GENERAL CREDITORS. 
BANKRUPTCY ACT SEC. 77(N), 11 U.S.C. 205(N).  THAT EXCEPTION IS IN
FAVOR OF A NARROWLY DEFINED CLASS OF CLAIMANTS.  CONGRESS HAS NOT
EXPRESSLY PROVIDED A SIMILAR EXCEPTION TO COVER PETITIONER'S TORT
CLAIM, AND I WOULD NOT INFER ONE. 

FINALLY, THE COURT CONCLUDES, FOR TWO REASONS, THAT IT IS
"LINGUISTICALLY MORE COMFORTABLE" TO TREAT PETITIONER'S CLAIM AS AN
ADMINISTRATIVE COST RATHER THAN AS A NEGLIGENCE CLAIM WHICH COULD HAVE
BEEN PROVEN UNDER SEC. 63A(7).  FIRST, SEC. 63A REFERS TO PROVABLE
CLAIMS AGAINST THE DEBTOR AND NOT AGAINST HIS ESTATE.  SECOND, SECS.
63A(7) AND 302 REQUIRE THAT AN ACTION BE COMMENCED ON THE CLAIM BEFORE
THE FILING OF THE ARRANGEMENT PETITION, AND ALLOWING CLAIMS LIKE
PETITIONER'S WOULD IN EFFECT TOLL THE TIME LIMITATION IMPOSED BY THESE
STATUTORY OR PRACTICAL BASIS FOR DISTINGUISHING BETWEEN THE DEBTOR AND
HIS ESTATE IN THIS CASE.  HAD THE ARRANGEMENT BEEN SUCCESSFUL, THE
DEBTOR WOULD HAVE BEEN LIABLE FOR ANY DAMAGES OCCASIONED DURING THE
ADMINISTRATION UNDER THE LINE OF CASES RELIED UPON BY THE COURT.  TEXAS
& PACIFIC R. CO. V. BLOOM, 164 U.S. 636 (1897).  THE SUGGESTED
DISTINCTION BETWEEN "DEBTOR" AND "ESTATE" WOULD BE MEANINGFUL ONLY IF
THE TWO WORDS POINTED TO DIFFERENT SOURCES OF LIABILITY.  HERE,
PETITIONER'S NEGLIGENCE CLAIM, IF ALLOWED, WOULD DIMINISH THE DEBTOR'S
ESTATE IRRESPECTIVE OF WHETHER IT WERE TREATED AS AN ADMINISTRATIVE
COST UNDER SEC. 64A OR AS AN ORDINARY NEGLIGENCE CLAIM UNDER SEC.
63A(7).  WITH RESPECT TO THE COURT'S SECOND ARGUMENT, CHAPTER XI
PROVIDES THAT THE STRAIGHT BANKRUPTCY PROVISIONS, INCLUDING SEC.
63A(7), ARE APPLICABLE TO ARRANGEMENT PROCEEDINGS ONLY "SO FAR AS
POSSIBLE."  BANKRUPTCY ACT SEC. 378(2), 11 U.S.C. 778(2).  I HAVE NO
DIFFICULTY IN CONCLUDING THAT, WHERE THE CLAIM DOES NOT ARISE UNTIL
AFTER THE ARRANGEMENT PETITION IS FILED, IT IS MANIFESTLY IMPOSSIBLE
FOR A LAWSUIT ON THAT CLAIM TO PRECEDE THE FILING OF THE PETITION. 
FURTHER, I KNOW OF NO MORE COMPLETE WAY TO "READ THE TIME LIMITATION
OUT OF SEC. 63A(7) OF THE ACT" THAN BY TREATING CERTAIN NEGLIGENCE
CLAIMS AS ADMINISTRATIVE COSTS AS THE COURT DOES IN THIS CASE. 

I SEE NO BASIS IN EQUITY OR IN THE STATUTORY LANGUAGE OR PURPOSE FOR
SUBJECTING EVERY CLASS OF CREDITORS EXCEPT PETITIONER'S TO A LOSS
CAUSED BY THE NEGLIGENCE OF A WORKMAN.  CONSEQUENTLY, I WOULD CONSTRUE
"ACTUAL AND NECESSARY COSTS" AS LIMITED TO THOSE COSTS ACTUALLY AND
NECESSARILY INCURRED IN PRESERVING THE DEBTOR'S ESTATE AND
ADMINISTERING IT FOR THE BENEFIT OF THE CREDITORS.  I WOULD NOT INCLUDE
ORDINARY NEGLIGENCE CLAIMS WITHIN THIS CLASS. 

/1/  CERTAIN WAGE CLAIMS AND GOVERNMENT TAXES OBTAIN SECOND AND
FOURTH PRIORITIES RESPECTIVELY UNDER THE SECOND AND FOURTH SUBDIVISIONS
OF SEC. 64A, 11 U.S.C. 104(A)(2), 104(A)(4).  THE GOVERNMENT TAX CLAIMS
IN THIS CASE, NEARLY ALL OF WHICH WILL BE EXCLUDED FROM SHARING IN THE
ESTATE UNDER TODAY'S DECISION, AMOUNT TO APPROXIMATELY $245,000. 

/2/  UNLIKE STRAIGHT BANKRUPTCY, ONLY THE DEBTOR HIMSELF MAY FILE A
PETITION FOR AN ARRANGEMENT UNDER CHAPTER XI.  BANKRUPTCY ACT SECS.
321, 322, 11 U.S.C. 721, 722; 8 COLLIER, BANKRUPTCY PARAGRAPH 4.02(1). 

/3/  IN FACT, THE ABSENCE OF ANY OTHER ADJUDICATED CASE ON THE
QUESTION HERE PRESENTED IS A STRONG INDICATION THAT THE RECEIVER'S
INSURANCE IS USUALLY PERFECTLY ADEQUATE. 

/4/  11 U.S.C. 501-676. 

/5/  11 U.S.C. 205. 

/6/  BANKRUPTCY ACT SECS 77B, 115, 11 U.S.C. 205(B), 515; SEE IN RE
CHICAGO EXPRESS, INC., 332 F.2D 276, 278 (C.A.2D CIR. 1964).  SECTION
102 OF THE ACT (11 U.S.C. 502), WHICH IS APPLICABLE TO CORPORATE
REORGANIZATIONS, SPECIFICALLY PROVIDES THAT SEC. 64 "SHALL NOT APPLY IN
SUCH PROCEEDINGS UNLESS AN ORDER SHALL BE ENTERED DIRECTING THAT
BANKRUPTCY BE PROCEEDED WITH . . . ." 

/7/  TO TAKE BUT TWO EXAMPLES, GOVERNMENT TAX CLAIMS OBTAIN A HIGHER
PRIORITY IN EQUITY RECEIVERSHIPS AND UNDER CHAPTER X THAN THEY DO UNDER
SEC. 64A, SEE BANKRUPTCY ACT SEC.199, 11 U.S.C. 599; 6A COLLIER,
BANKRUPTCY 9.13(2); AND THE "SIX-MONTHS RULE" APPLIED TO EQUITY
RECEIVERSHIPS HAS NO ANALOGUE UNDER SEC. 64A.  SEE DUDLEY V. MEALEY,
147 F.2D 268 (C.A. 2D CIR. 1945). 

/8/  E.G., COMPARE ACT OF JULY 1, 1898, C. 541, SEC. 64A, 30 STAT.
563, WITH ACT OF MAY 37, 1926, C. 406, SEC. 15 (64A), 44 STAT. 666;
COMPARE 80 STAT. 270, 11 U.S.C. 35, 104(A)(4) (1964 ED., SUPP. II),
WITH ACT OF JUNE 22, 1938, C. 575, AMENDING SECS. 17A(1), 64A(4), 52
STAT. 851, 874. 

THOMAS RAEBURN WHITE, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH
HIM ON THE BRIEFS WAS H. MERLE MULLOY. 

OWEN B. RHOADS ARGUED THE CAUSE FOR RESPONDENT BROWN.  WITH HIM ON
THE BRIEF WERE SAMUEL MARX AND ARTHUR E. NEWBOLD III. 

RICHARD M. ROBERTS ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
ROGOVIN, HARRIS WEINSTEIN, CROMBIE J. D. GARRETT, AND EDWARD LEE
ROGERS. 
..END :
























WIRTZ V. HOTEL EMPLOYEES, 391 U.S. 492 


       WIRTZ, SECRETARY OF LABOR V. HOTEL, MOTEL  & CLUB EMPLOYEES

           UNION, LOCAL 6. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT. 

        NO. 891.  ARGUED APRIL 29, 1968.-- DECIDED JUNE 3, 1968. 


PETITIONER, SECRETARY OF LABOR, CHARGED THAT RESPONDENT UNION'S BYLAW
WHICH LIMITED ELIGIBILITY FOR MAJOR ELECTIVE OFFICES TO UNION MEMBERS
WHO HOLD OR HAVE PREVIOUSLY HELD ELECTIVE OFFICE WAS NOT A REASONABLE
QUALIFICATION UNDER SEC. 401(E) OF TITLE IV OF THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT OF 1959, AND THAT ENFORCEMENT OF THE BYLAW
"MAY HAVE AFFECTED THE OUTCOME" OF THE ELECTION WITHIN THE MEANING OF
SEC. 402(C).  THE UNION HAS 27,000 MEMBERS, 93% OF WHOM WERE INELIGIBLE
TO RUN FOR MAJOR OFFICE BECAUSE OF THE BYLAW.  THE RESTRICTION DID NOT
APPLY TO VACANCIES FILLED BY APPOINTMENT.  THE DISTRICT COURT HELD THE
PRIOR-OFFICE REQUIREMENT UNREASONABLE, BUT IN VIEW OF THE SUBSTANTIAL
DEFEAT OF OPPOSITION CANDIDATES WHO DID RUN, LACK OF EVIDENCE THAT
THOSE DISQUALIFIED WERE PROVEN VOTE-GETTERS, LACK OF SUBSTANTIAL
GRIEVANCE AGAINST THE INCUMBENTS, AND THE OVERWHELMING ADVANTAGE OF THE
INCUMBENT GROUP IN HAVING A FULL SLATE OF CANDIDATES, DID NOT FIND THAT
ENFORCEMENT OF THE BYLAW "MAY HAVE AFFECTED THE OUTCOME" OF THE
ELECTION.  THE COURT REFUSED TO SET ASIDE THE ELECTION BUT GRANTED AN
INJUNCTION AGAINST ENFORCEMENT OF THE BYLAW IN FUTURE ELECTIONS.  THE
COURT OF APPEALS REVERSED THAT PART OF THE JUDGMENT DECLARING THE BYLAW
NOT TO BE REASONABLE AND SET ASIDE THE INJUNCTION.  HELD: 

1.  THE BYLAW, MEASURED AGAINST THE ACT'S REQUIREMENT OF "FREE AND
DEMOCRATIC" UNION ELECTIONS, IS NOT A "REASONABLE QUALIFICATION" WITHIN
THE MEANING OF SEC. 401(E) OF THE ACT.  PP. 496-505. 

(A) A LIMITATION ON CANDIDACY FOR MAJOR OFFICE WHICH RENDERES 93% OF
THE UNION MEMBERS INELIGIBLE CAN HARDLY BE A "REASONABLE
QUALIFICATION."  P. 502. 

(B) THE RESTRICTION CANNOT BE SUPPORTED BY THE ARGUMENT THAT THE
UNION ENJOYED ENLIGHTENED AND AGGRESSIVE LEADERSHIP, SINCE CONGRESS
DESIGNED TITLE IV OF THE ACT TO CURB THE POSSIBILITY OF ABUSE BY
BENEVOLENT AS WELL AS MALEVOLENT ENTRENCHED LEADERSHIPS.  P. 503. 

(C) THE BYLAW, VIRTUALLY UNIQUE IN UNION PRACTICE, IS BASED ON THE
UNDEMOCRATIC ASSUMPTION THAT UNION MEMBERS ARE UNABLE TO SELECT
QUALIFIED CANDIDATES FOR PARTICULAR OFFICES WITHOUT A DEMONSTRATION OF
PERFORMANCE OF OTHER OFFICES.  PP. 504-505. 

2.  A PROVED VIOLATION OF SEC. 401 ESTABLISHES A PRIMA FACIE CASE
THAT THE OUTCOME MAY HAVE BEEN AFFECTED AND MAY BE MET BY EVIDENCE
SUPPORTING A FINDING TO THE CONTRARY.  THE FACTORS THE DISTRICT OURT
RELIED ON WERE PURE CONJECTURE AND NONE OF THOSE FACTORS IS TANGIBLE
EVIDENCE AGAINST THE REASONABLE POSSIBILITY THAT THE WHOLESALE
EXCLUSION OF MEMBERS DID AFFECT THE OUTCOME.  PP. 505-509. 

381.  F.2D 400, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT BY PETITIONER, THE SECRETARY OF LABOR, IN THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR A JUDGMENT
DECLARING VOID THE MAY 1965 ELECTION OF OFFICERS CONDUCTED BY
RESPONDENT LOCAL 6, AND ORDERING A NEW ELECTION UNDER THE SECRETARY'S
SUPERVISION.  THE ACTION IS AUTHORIZED BY SEC. 402(B) OF THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 534, 29
U.S.C. 482(B).  THE SECRETARY CHARGED THAT A BYLAW OF THE LOCAL WHICH
LIMITED ELIGIBILITY FOR MAJOR ELECTIVE OFFICES TO UNION MEMBERS WHO
HOLD OR HAVE PREVIOUSLY HELD ELECTIVE OFFICE /1/  WAS NOT A "REASONABLE
QUALIFICATION" WITHIN THE INTENDMENT OF THE PROVISION OF SEC. 401(E) OF
THE ACT, 29 U.S.C. 481(E), THAT "EVERY MEMBER IN GOOD STANDING SHALL BE
ELIGIBLE TO BE A CANDIDATE AND TO HOLD OFFICE (SUBJECT TO . . .
REASONABLE QUALIFICATIONS UNIFORMLY IMPOSED) . . . ."  /2/ HE CHARGED
FURTHER THAT ENFORCEMENT OF THE BYLAW "MAY HAVE AFFECTED THE OUTCOME"
OF THE ELECTION WITHIN THE MEANING OF SEC. 402(C), 29 U.S.C. 482(C). 
/3/ 

THE DISTRICT COURT, AFTER HEARING, ENTERED A JUDGMENT WHICH DECLARED
THAT THE PRIOR-OFFICE REQUIREMENT WAS NOT REASONABLE, BUT ALSO DECLARED
THAT IT COULD NOT BE FOUND THAT ITS ENFORCEMENT IN VIOLATION OF SEC.
401(E) "MAY HAVE AFFECTED THE OUTCOME" OF THE ELECTION.  THE COURT
THEREFORE REFUSED TO SET ASIDE THE MAY 1965 ELECTION AND TO ORDER A NEW
ELECTION UNDER THE SECRETARY'S SUPERVISION, BUT DID GRANT AN INJUNCTION
AGAINST ENFORCEMENT OF THE BYLAW IN FUTURE ELECTIONS.  265 F.SUPP. 
510.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED THE
PROVISION OF THE JUDGMENT WHICH DECLARED THE BYLAW NOT TO BE REASONABLE
AND ITS ENFORCEMENT VIOLATIVE OF SEC. 401(E), AND SET ASIDE THE
INJUNCTION.  /4/  THE COURT FOUND IT UNNECESSARY IN THAT CIRCUMSTANCE
TO DECIDE WHETHER ENFORCEMENT OF THE BYLAW AT THE ELECTION MAY HAVE
AFFECTED THE OUTCOME.  381 F.2D 500.  WE GRANTED CERTIORARI.  390 U.S.
919.  WE HOLD THAT THE RESTRICTION WAS NOT REASONABLE AND THAT ITS
ENFORCEMENT MAY HAVE AFFECTED THE OUTCOME OF THE ELECTION.  THE
SECRETARY IS THEREFORE ENTITLED TO AN ORDER DIRECTING A NEW ELECTION
UNDER HIS SUPERVISION. 

        I. 

TITLE IV IS ONE OF THE SEVEN TITLES OF THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT (LMRDA).  EARLIER THIS TERM, WE OBSERVED
THAT "TITLE IV'S SPECIAL FUNCTION IN FURTHERING THE OVERALL GOALS OF
THE LMRDA IS TO INSURE 'FREE AND DEMOCRATIC' ELECTIONS.  THE
LEGISLATIVE HISTORY SHOWS THAT CONGRESS WEIGHED HOW BEST TO LEGISLATE
AGAINST REVEALED ABUSES IN UNION ELECTIONS WITHOUT DEPARTING NEEDLESSLY
FROM ITS LONG-STANDING POLICY AGAINST UNNECESSARY GOVERNMENTAL
INTRUSION INTO INTERNAL UNION AFFAIRS."  WRITZ V. LOCAL 153, GLASS
BOTTLE BLOWERS ASSN., 389 U.S. 463, 470-471.  THE COURT OF APPEALS,
HOWEVER, IN CONSIDERING THE REASONABLENESS OF THE BYLAW, EMPHASIZED
ONLY THE CONGRESSIONAL CONCERN NOT TO INTERVENE UNNECESSARILY IN
INTERNAL UNION AFFAIRS, STATING THAT "(IN DECIDING THE ISSUE OF
REASONABLENESS WE MUST KEEP IN MIND THE FACT THAT THE ACT DID NOT
PURPORT TO TAKE AWAY FROM LABOR UNIONS THE GOVERNANCE OF THEIR OWN
INTERNAL AFFAIRS AND HAND THAT GOVERNANCE OVER EITHER TO THE COURTS OR
TO THE SECRETARY OF LABOR.  THE ACT STRICTLY LIMITS OFFICIAL
INTERFERENCE IN THE INTERNAL AFFAIRS OF UNIONS."  381 F.2D, AT 504. 
BUT THIS EMPHASIS OVERLOOKS THE FACT THAT THE CONGRESSIONAL CONCERN TO
AVOID UNNECESSARY INTERVENTION WAS BALANCED AGAINST THE POLICY
EXPRESSED IN THE ACT TO PROTECT THE PUBLIC INTEREST BY ASSURING THAT
UNION ELECTIONS WOULD BE CONDUCTED IN ACCORDANCE WITH DEMOCRATIC
PRINCIPLES.  AS WE SAID IN WIRTZ V. BOTTLE BLOWERS, SUPRA, AT 473,
DECIDED AFTER THE COURT OF APPEALS DECIDED THIS CASE, "  . . .
CONGRESS, ALTHOUGH COMMITTED TO MINIMAL INTERVENTION, WAS OBVIOUSLY
EQUALLY COMMITTED TO MAKING THAT INTERVENTION, ONCE WARRANTED,
EFFECTIVE IN CARRYING OUT THE BASIC AIM OF TITLE IV."  THUS, "THE
FREEDOM ALLOWED UNIONS TO RUN THEIR OWN ELECTIONS WAS RESERVED FOR
THOSE ELECTIONS WHICH CONFORM TO THE DEMOCRATIC PRINCIPLES WRITTEN INTO
SEC. 401."  ID., AT 471.  IN A COMPANION CASE, WIRTZ V. LOCAL 125,
LABORERS' INT'L UNION, 389 U.S. 477, 483, WE SAID THAT THE PROVISIONS
OF SEC. 401 ARE "NECESSARY PROTECTIONS OF THE PUBLIC INTEREST AS WELL
AS OF THE RIGHTS AND INTERESTS OF UNION MEMBERS."  IN SUM, IN SEC. 401
" . . . CONGRESS EMPHATICALLY ASSERTED A VITAL PUBLIC INTEREST IN
ASSURING FREE AND DEMOCRATIC UNION ELECTIONS THAT TRANSCENDS THE
NARROWER INTEREST OF THE COMPLAINING UNION MEMBER."  WIRTZ V. BOTTLE
BLOWERS, SUPRA, AT 475. 

A PERVASIVE THEME IN THE CONGRESSIONAL DEBATES ABOUT THE ELECTION
PROVISIONS WAS THAT REVELATIONS OF CORRUPTION, DICTATORIAL PRACTICES
AND RACKETEERING IN SOME UNIONS INVESTIGATED BY CONGRESS /5/  INDICATED
A NEED TO PROTECT THE RIGHTS OF RANK-AND-FILE MEMBERS TO PARTICIPATE
FULLY IN THE OPERATION OF THEIR UNION THROUGH PROCESSES OF DEMOCRATIC
SELF-GOVERNMENT, AND, THROUGH THE ELECTION PROCESS, TO KEEP THE UNION
LEADERSHIP RESPONSIVE TO THE MEMBERSHIP.  THIS THEME IS MADE EXPLICIT
IN THE REPORTS OF THE LABOR COMMITTEES OF BOTH HOUSES OF CONGRESS.  /6/
IT IS REFLECTED IN THE DISCRETE PROVISIONS OF TITLE IV AND ALSO OF
TITLE I, THE "BILL OF RIGHTS" FOR UNION MEMBERS.  29 U.S.C. 411.  TITLE
IV, AND PARTICULARLY SEC. 401, WAS THE VEHICLE BY WHICH CONGRESS
EXPRESSED ITS POLICY.  THAT SECTION PRESCRIBES STANDARDS TO GOVERN THE
CONDUCT OF UNION ELECTIONS:  INTERNATIONAL UNION ELECTIONS MUST BE HELD
AT LEAST ONCE EVERY FIVE YEARS AND LOCAL ELECTIONS AT LEAST ONCE EVERY
THREE YEARS.  ELECTIONS MUST BE BY SECRET BALLOT.  SPECIFIC PROVISIONS
INSURE EQUALITY OF TREATMENT IN THE MAILING OF CAMPAIGN LITERATURE;
REQUIRE ADEQUATE SAFEGUARDS TO INSURE A FAIR ELECTION; GUARANTEE A
"REASONABLE OPPORTUNITY" FOR THE NOMINATION OF CANDIDATES, THE RIGHT TO
VOTE, AND THE RIGHT OF EVERY MEMBER IN GOOD STANDING TO BE A CANDIDATE
SUBJECT TO "REASONABLE QUALIFICATIONS UNIFORMLY IMPOSED," THE GUARANTEE
WITH WHICH WER ARE CONCERNED IN THIS CASE.  29 U.S.C. 481(A)-(E). 
FURTHERMORE, ALTHOUGH CONGRESS EMPHATICALLY GAVE UNIONS THE PRIMARY
RESPONSIBILITY FOR ENFORCING COMPLIANCE WITH THE ACT, CONGRESS ALSO
SETTLED ENFORCEMENT AUTHORITY ON THE SECRETARY OF LABOR TO INSURE THAT
SERIOUS VIOLATIONS WOULD NOT GO UNREMEDIED AND THE PUBLIC INTEREST GO
UNVINDICATED.  SEE WIRTZ V. BOTTLE BLOWERS, SUPRA; WIRTZ V. LABORERS'
UNION, SUPRA; CALHOON V. HARVEY, 379 U.S. 134.  /7/ 

CONGRESS PLAINLY DID NOT INTEND THAT THE AUTHORIZATION IN SEC.
401(E) OF "REASONABLE QUALIFICATIONS UNIFORMLY IMPOSED" SHOULD BE GIVEN
A BROAD REACH.  THE CONTRARY IS IMPLICIT IN THE LEGISLATIVE HISTORY OF
THE SECTION AND IN ITS WORDING THAT "EVERY MEMBER IN GOOD STANDING
SHALL BE ELIGIBLE TO BE A CANDIDATE AND TO HOLD OFFICE . . . ."  THIS
CONCLUSION IS BUTTRESSED BY OTHER PROVISIONS OF THE ACT WHICH STRESS
FREEDOM OF MEMBERS TO NOMINATE CANDIDATES FOR OFFICE.  /8/  UNDULY
RESTRICTIVE CANDIDACY QUALIFICATIONS CAN RESULT IN THE ABUSES OF
ENTRENCHED LEADERSHIP THAT THE LMRDA WAS EXPRESSLY ENACTED TO CURB. 
THE CHECK OF DEMOCRATIC ELECTIONS AS A PREVENTIVE MEASURE IS SERIOUSLY
IMPAIRED BY CANDIDACY QUALIFICATIONS WHICH SUBSTANTIALLY DEPLETE THE
RANKS OF THOSE WHO MIGHT RUN IN OPPOSITION TO INCUMBENTS. 

IT FOLLOWS TEHREFORE THAT WHETHER THE LOCAL 6 BYLAW IS A "REASONABLE
QUALIFICATION" WITHIN THE MEANING OF SEC. 401(E) MUST BE MEASURED IN
TERMS OF ITS CONSISTENCY WITH THE ACT'S COMMAND TO UNIONS TO CONDUCT
"FREE AND DEMOCRATIC" UNION ELECTIONS. 

 II. 

LOCAL 6 HAS 27,000 MEMBERS, ASSETS OF $2,300,000, AND ASSETS IN
WELFARE, PENSION, AND MEDICAL FUNDS OF SOME $30,000,000.  THE LOCAL
REPRESENTS BARTENDERS, MAIDS, DINING ROOM EMPLOYEES, AND KITCHEN
EMPLOYEES OF HOTELS, MOTELS, AND PRIVATE CLUBS IN NEW YORK.  IT IS
STRUCTURED INTO SIX GEOGRAPHIC DISTRICTS, EACH WITH FIVE CRAFT
DEPARTMENTS, FOR HOTEL AND MOTEL EMPLOYEES, AN A SEVENTH DISTRICT FOR
PRIVATE CLUBS.  THE VARIOUS CRAFTS HAVE THEIR OWN REPRESENTATIVES IN
EACH HOTEL, MOTEL, OR CLUB.  AN ASSEMBLY, COMPOSED IN 1965 OF 372
MEMBERS, MEETS FOUR TIMES A YEAR AND IS THE BASIC REPRESENTATIVE BODY. 
THE DELEGATES ARE ELECTED FROM AMONG THE CRAFT UNITS WITHIN EACH OF THE
SEVEN DISTRICTS ON THE BASIS OF ONE DELEGATE FOR EACH 75 MEMBERS OF A
CRAFT.  THE ASSEMBLY IN TURN ELECTS FROM ITS MEMBERSHIP AN EXECUTIVE
BOARD ON THE BASIS OF ONE BOARD MEMBER FOR EACH 500 MEMBERS, AUGMENTED
BY PRINCIPAL OFFICERS AND BY NONVOTING BUSINESS AGENTS, 31 OF WHOM ARE
ELECTED FROM THE SEVEN DISTRICTS AND OTHERS WHO ARE APPOINTED BY THE
ASSEMBLY.  THE EXECUTIVE BOARD MEETS MONTHLY.  THERE IS ALSO AN
ADMINISTRATIVE BOARD MADE UP OF, IN ADDITION TO GENERAL OFFICERS, SEVEN
DISTRICT VICE-PRESIDENTS ELECTED FROM THE DISTRICTS AND ELECTED OR
APPOINTED DELEGATES TO THE NEW YORK HOTEL AND MOTEL TRADES COUNCIL. 
FINALLY THERE ARE FOUR PAID FULL-TIME GENERAL OFFICERS-- PRESIDENT,
SECRETARY-TREASURER, GENERAL ORGANIZER, AND RECORDING SECRETARY, ALL
ELECTED BY THE MEMBERSHIP AT LARGE.  TERMS OF OFFICE ARE THREE YEARS. 
IN PRACTICE THE AFFAIRS OF THE LOCAL ARE ADMINISTERED BY THE GENERAL
OFFICERS AND THE ADMINISTRATIVE BOARD. 

THE BYLAW UNDER CHALLENGE /9/  LIMITED ELIGIBILITY FOR POSITIONS AS
A GENERAL OFFICER, DISTRICT VICE-PRESIDENT OR ELECTED BUSINESS AGENT TO
MEMBERS OF EITHER THE ASSEMBLY OR THE EXECUTIVE BOARD OR MEMBERS WHO,
"AT SOME TIME IN THE PAST, HAVE SERVED AT LEAST ONE TERM ON EITHER THE
EXECUTIVE BOARD, THE ASSEMBLY, OR THE OLD SHOP DELEGATES COUNCIL."  THE
SHOP DELEGATES COUNCIL WAS ABOLISHED IN 1951 AND REPLACED BY THE
ASSEMBLY.  THESE QUALIFICATIONS APPLY, HOWEVER, ONLY TO MEMBERS WHO
STAND FOR ELECTION FOR OFFICE.  VACANCIES MAY NOT ALWAYS BE FILLED BY
ELECTION; THE GENERAL OFFICERS MAY IN SUCH CASES FILL VACANCIES BY
APPOINTMENT OF MEMBERS WITHOUT PRIOR OFFICE-HOLDING EXPERIENCE, WITH
THE APPROVAL OF THE EXECUTIVE BOARD AND THE ASSEMBLY. 

BY THE TERMS OF THE BYLAW, IN THE MAY 1965 ELECTION ONLY 1,725 OF
THE 27,000 MEMBERS WERE ELIGIBLE TO RUN FOR OFFICE.  OF THESE,1,182, OR
70%, WERE ELIGIBLE ONLY BECAUSE OF SERVICE ON THE SHOP DELEGATES
COUNCIL WHICH HAD BEEN ABOLISHED 14 YEARS EARLIER.  THUS, ONLY 543 OF
THE ELIGIBLES, SOME 2% OF THE MEMBERSHIP, HAD AT SOME TIME OR OTHER
SERVED AT LEAST A TERM IN THE ASSEMBLY, DESIGNATED IN THE BYLAWS AS
"THE HIGHEST BODY OF THE UNION," SINCE ITS CREATION IN 1951. 

FIVE ELECTIONS WERE HELD BETWEEN 1951 AND 1965.  ALL OF THEM WERE
WON BY THE "ADMINISTRATION PARTY," WHOSE SLATES WERE COMPOSED LARGELY
OF INCUMBENTS.  UNTIL THE MAY 1965 ELECTION THERE WAS ONLY TOKEN
OPPOSITION TO THOSE SLATES.  EARLY IN 1965, HOWEVER, A "MEMBERSHIP
PARTY" WAS ORGANIZED.  IT ATTEMPTED TO FIELD A SLATE OF CANDIDATES TO
OPPOSE THE "ADMINISTRATION PARTY" SLATE FOR, AMONG OTHERS, THE FOUR
GENERAL OFFICES AND FOR 13 OF THE 27 VICE-PRESIDENT AND BUSINESS AGENT
POSTS.  BUT ENFORCEMENT OF THE BYLAW DISQUALIFED THE "MEMBERSHIP PARTY"
CANDIDATES FOR THE GENERAL OFFICE OF SECRETARY-TREASURER AND FOR EIGHT
OF THE DISTRICT OFFICES.  /10/  OTHER "MEMBERSHIP PARTY" NOMINEES WERE
DISQUALIFIED FOR LACK OF GOOD STANDING.  IN RESULT, THE "MEMBERSHIP
PARTY" SLATE WAS REDUCED TO CANDIDATES FOR THE OFFICES OF PRESIDENT,
GENERAL ORGANIZER, AND BUSINESS AGENT IN TWO DISTRICTS.  THE
"ADMINISTRATION PARTY" RAN A FULL SLATE AND ELECTED ITS CANDIDATES BY
MARGINS UP TO 7 TO 1.  FOLLOWING THE ELECTION, "MEMBERSHIP PARTY"
MEMBERS PROTESTED THE VALIDITY OF THE BYLAW AND, AFTER UNSUCCESSFULLY
EXHAUSTING INTERNAL UNION REMEDIES AS REQUIRED BY SEC. 402(A)(1), FILED
THE COMPLAINT WITH THE SECRETARY OF LABOR AS AUTHORIZED BY THAT SECTION
WHICH IN DUE COURSE LED TO THE SECRETARY'S FILING THIS ACTION. 

PLAINLY, GIVEN THE OBJECTIVE OF TITLE IV, A CANDIDACY LIMITATION
WHICH RENDERS 93% OF UNION MEMBERS INELIGIBLE FOR OFFICE CAN HARDLY BE
A "REASONABLE QUALIFICATION."  THE PRACTICAL EFFECT OF THE LIMITATION
WAS DESCRIBED BY THE DISTRICT COURT: 

     "IN PRACTICE IT WAS NOT POSSIBLE TO BE ELECTED TO THE ASSEMBLY

  EXCEPT WITH THE BLESSING OF THE ADMINISTRATION PARTY CONFERRED BY

  SELECTION TO RUN FOR THE ASSEMBLY ON ROW A (OF A VOTING

  MACHINE).  THIS WAS DOUBTLESS IN LARGE PART BECAUSE THERE WAS

  NEVER A FULL SLATE OF OPPOSING CANDIDATES FOR THE ASSEMBLY.  THE

  CANDIDATES TO RUN ON ROW A FOR THE ASSEMBLY WERE SELECTED BY

THE INCUMBENT GROUP OF OFFICERS AND WERE PUT IN NOMINATION AFTER
CAUCUSES OF INVITED MEMBERS, ATTENDED BY OFFICERS.  IT WAS ONLY NATURAL
THAT CANDIDATES SELECTED TO RUN ON ROW A FOR THE ASSEMBLY WOULD BE
SUPPORTERS OF THE ADMINISTRATION.  ALL CANDIDATES ON ROW A WERE PLEDGED
TO SUPPORT EACH OTHER.  DISSIDENTS COULD NOT BE ELECTED TO THE ASSEMBLY
. . . .

        .          .          .   . 

     "SINCE 1951 THE ONLY WAY NEW MEMBERS COULD BECOME ELIGIBLE FOR

  OFFICE WAS TO WIN ELECTION TO THE ASSEMBLY.  BUT IN THIS PERIOD

  THE ONLY CANDIDATES WHICH WON SUCH ELECTION WERE THOSE WHO RAN ON

  ROW A, THE ADMINISTRATION TICKET.  THE ONLY WAY TO RUN ON ROW A

  WAS TO BE SELECTED BY THE ADMINIST ADMINISTRATION.  THUS,

  DISSIDENTS COULD NOT BECOME ELIGIBLE TO BE OPPOSING CANDIDATES

  FOR OFFICE AND EFFECTIVE OPPOSITION WAS THUS SHARPLY CURTAILED." 

 265

F.SUPP.,AT 516, 520.     THE LOCAL ATTEMPTS TO DEFEND THE RESTRICTION
AS A "REASONABLE QUALIFICATION" BY CITING THE CONCEDEDLY IMPRESSIVE
RECORD OF THE "ADMINISTRATION PARTY" IN RUNNING THE LOCAL'S AFFAIRS
SINCE 1951.  THERE IS NO REASON TO DOUBT THAT THE LOCAL HAS ENJOYED
ENLIGHTENED AND AGGRESSIVE LEADERSHIP.  BUT THAT FACT DOES NOT SUSTAIN
THE LOCAL'S BURDEN.  CONGRESS DESIGNED TITLE IV TO CURB THE POSSIBILITY
OF ABUSE BY BENEVOLENT AS WELL AS MALEVOLENT ENTRENCHED LEADERSHIPS. 

THE LOCAL ALSO ARGUES THAT THE HIGH ANNUAL TURNOVER IN MEMBERSHIP,
THE DIVERSE INTERESTS OF THE VARIOUS CRAFT UNITS AND THE MULTIMILLION
DOLLAR FINANCES OF THE LOCAL JUSTIFY THE BYLAW AS A MEASURE TO LIMIT
THE HOLDING OF IMPORTANT UNION OFFICES TO THOSE MEMBERS WHO HAVE
ACQUIRED A FAMILIARITY WITH THE LOCAL'S PROBLEMS BY SERVICE IN LESSER
OFFICES.  THAT ARGUMENT WAS PERSUASIVE WITH THE COURT OF APPEALS, WHICH
SAID: 

     "(IT IS NOT SELF-EVIDENT THAT BASIC MINIMUM PRINCIPLES OF
UNION

  DEMOCRACY REQUIRE THAT EVERY UNION ENTRUST THE ADMINSTRATION OF

  ITS AFFAIRS TO UNTRAINED AND INEXPERIENCED RANK AND FILE MEMBERS

  . . . . IT DOES NOT SEEM TO US TO BE SURPRISING THAT THE UNION

  SHOULD HESITATE TO PERMIT A COOK OR A WAITER OR A DISHWASHER

  WITHOUT ANY TRAINING OR EXPERIENCE IN THE MANAGEMENT OF UNION

  AFFAIRS TO TAKE ON RESPONSIBILITY FOR THE COMPLEX AND DIFFICULT

  PROBLEMS OF ADMINISTRATION OF THIS UNION. 

        .          .          .          . 

     "WE DO NOT BELIEVE THAT IT IS UNREASONABLE FOR A UNION TO

  CONDITION CANDIDACY FOR OFFICES OF GREATER RESPONSIBILITY UPON A

  YEAR (SIC) OF THE KIND OF EXERIENCE AND TRAINING THAT A UNION

  MEMBER WILL ACQUIRE IN A POSITION SUCH AS THAT OF MEMBERSHIP IN

  LOCAL 6'S ASSEMBLY."  381 F.2D, AT 505. 

THAT ARGUMENT IS NOT, HOWEVER, PERSUASIVE TO US.  IT ASSUMES THAT
RANK-AND-FILE UNION MEMBERS ARE UNABLE TO DISTINGUISH QUALIFIED FROM
UNQUALIFIED CANDIDATES FOR PARTICULAR OFFICES WITHOUT A DEMONSTRATION
OF A CANDIDATE'S PERFORMANCE IN OTHER OFFICES.  BUT CONGRESS' MODEL OF
DEMOCRATIC ELECTIONS WAS POLITICAL ELECTIONS IN THIS COUNTRY, AND THEY
ARE NOT BASED ON ANY SUCH ASSUMPTION.  RATHER, IN THOSE ELECTIONS THE
ASSUMPTION IS THAT VOTERS WILL EXERCISE COMMON SENSE AND JUDGMENT IN
CASTING THEIR BALLOTS.  LOCAL 6 MADE NO SHOWING THAT CITIZENS ASSUMED
TO MAKE DISCRIMINATING JUDGMENTS IN PUBLIC ELECTIONS CANNOT BE RELIED
ON TO MAKE SUCH JUDGMENTS WHEN VOTING AS UNION MEMBERS.  INDEED THE
LOCAL IS NOT FAITHFUL TO ITS OWN PREMISE.  A MUMBER NEED NOT HAVE PRIOR
SERVICE IN UNION OFFICE TO BE APPOINTED TO A VACANCY IN ANY OFFICE. 
ALSO, MANY MEMBERS OF THE POWERFUL ADMINISTRATIVE BOARD BECOME SUCH BY
REASON OF THEIR APPOINTMENTS AS DELEGATES TO THE NEW YORK HOTEL AND
MOTEL TRADES COUNCIL, ANOTHER EXAMPLE OF IMPORTANT OFFICERS WHO ARE NOT
REQUIRED TO HAVE HAD PRIOR SERVICE.  MOREOVER, AS THE DISTRICT COURT
FOUND, "ONCE SUCH AN OFFICER IS APPOINTED, HE AUTOMATICAYLY BECOMES A
MEMBER OF THE ASSEMBLY AND IMMEDIATELY BECOMES ELIGIBLE TO RUN
THEREAFTER FOR ANY UNION OFFICE.  THIS ENABLES THE INCUMBENT GROUP TO
QUALIFY MEMBERS FOR ELECTIVE OFFICE BY A PROCEDURE NOT AVAILABLE TO
DISSIDENTS."  265 F.SUPP.,AT 520. 

THE BYLAW IS VIRTUALLY UNIQUE IN TRADE UNION PRACTICE.  IT HAS ITS
COUNTERPART IN SOME OTHER LOCALS OF THIS INTERNATIONAL UNION BUT NOT IN
ALL; AND IT IS NOT A REQUIREMENT INCLUDED IN THE INTERNATIONAL'S
CONSTITUTION.  AMONG OTHER LARGE UNIONS ONLY THE INTERNATIONAL LADIES
GARMENT WORKERS UNION HAS A SIMILAR RESTRICTION, BUT THAT UNION
PROVIDES MEMBERS WITH THE ALTERNATIVE OF A UNION-CONDUCTED COURSE IN
UNION MANAGEMENT.  OF 66 UNIONS REPORTING RECEIPTS OVER $1,000,000 FOR
1964, ONLY LOCALS OF ILGWU AND LOCAL 6 REPORTED HAVING THIS
REQUIREMENT.  CONTROL BY INCUMBENTS THROUGH DEVICES WHICH OPERATE IN
THE MANNER OF THIS BYLAW IS PRECISELY WHAT CONGRESS LEGISLATED AGAINST
IN THE LMRDA.  CF. WIRTZ V. BOTTLE BLOWERS, SUPRA, AT 474-475. 
ACCORDINGLY, WE HOLD THAT THE BYLAW IS NOT A "REASONABLE QUALIFICATION"
WITHIN THE MEANING OF SEC. 401(E). 

     III. 

THE SECRETARY WAS NOT ENTITLED TO AN ORDER FOR A SUPERVISED ELECTION
UNLESS THE ENFORCEMENT OF THE BYLAW "MAY HAVE AFFECTED" THE OUTCOME OF
THE MAY 1965 ELECTION, SEC. 402(C), 29 U.S.C. 482(C).  THE "MAY HAVE
AFFECTED" LANGUAGE APPEARED IN THE BILL PASSED BY THE SENATE, S. 1555. 
/11/  THE BILL PASSED BY THE HOUSE, H.R. 8342, AND THE KENNEDY-ERVIN
BILL INTRODUCED IN THE SENATE, S. 505, REQUIRED THE MORE STRINGENT
SHOWING THAT THE VIOLATION ACTUALLY "AFFECTED" THE OUTCOME.  THE
DIFFERENCE WAS RESOLVED IN CONFERENCE BY THE ADOPTION OF THE "MAY HAVE
AFFECTED" LANGUAGE.  /12/  SENATOR GOLDWATER EXPLAINED, 

     "THE KENNEDY-ERVIN BILL (S. 505), AS INTRODUCED, AUTHORIZED
THE

  COURT TO DECLARE AN ELECTION VOID ONLY IF THE VIOLATION OF

  SECTION 401 ACTUALLY AFFECTED THE OUTCOME OF THE ELECTION RATHER

  THAN MAY HAVE AFFECTED SUCH OUTCOME.  THE DIFFICULTY OF PROVING

  SUCH AN ACTUALITY WOULD BE SO GREAT AS TO RENDER THE PROFESSED

  REMEDY PRACTICALLY WORTHLESS.  MINORITY MEMBERS IN COMMITTEE

  SECURED AN AMENDMENT CORRECTING THIS GLARING DEFECT AND THE

  AMENDMENT IS CONTAINED IN THE CONFERENCE REPORT."  105

  CONG.REC.19765. 

THE PROVISION THAT THE FINDING SHOULD BE MADE "UPON A PREPONDERANCE
OF THE EVIDENCE" WAS LEFT UNDISTURBED WHEN THE CHANGE WAS MADE.  THAT
PROVISION IS READILY SATISFIED, HOWEVER, AS IS THE CONGRESSIONAL
PURPOSE IN CHANGING "AFFECTED" TO "MAY HAVE AFFECTED" IN ORDER TO AVOID
RENDERING THE PROPOSED "REMEDY PRACTICALLY WORTHLESS," BY ASCRIBING TO
A PROVED VIOLATION OF SEC. 401 THE EFFECT OF ESTABLISHING A PRIMA FACIE
CASE THAT THE VIOLATION "MAY HAVE AFFECTED" THE OUTCOME.  THIS EFFECT
MAY OF COURSE BE MET BY EVIDENCE WHICH SUPPORTS A FINDING THAT THE
VIOLATION DID NOT AFFECT THE RESULT.  THIS CONSTRUCTION IS PECULIARLY
APPROPRIATE WHEN THE VIOLATION OF SEC. 401, AS HERE, TAKES THE FORM OF
A SUBSTANTIAL EXCLUSION OF CANDIDATES FROM THE BALLOT.  IN SUCH CASE WE
ADOPT THE REASONING OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN
WIRTZ V. LOCAL UNION 410, IUOE, 366 F.2D 438, 443: 

     "THE PROVISO WAS INTENDED TO FREE UNIONS FROM THE DISRUPTIVE

  EFFECT OF A VOIDED ELECTION UNLESS THERE IS A MEANINGFUL RELATION

  BETWEEN A VIOLATION OF THE ACT AND RESULTS OF A PARTICULAR

  ELECTION.  FOR EXAMPLE, IF THE SECRETARY'S INVESTIGATION REVEALED

  THAT 20 PERCENT OF THE VOTES IN AN ELECTION HAD BEEN TAMPERED

  WITH, BUT THAT ALL OFFICERS HAD WON BY AN 8-1 MARGIN, THE PROVISO

  SHOULD PREVENT UPSETTING THE ELECTION . . . . BUT IN THE CASES AT

  BAR, THE ALLEGED VIOLATIONS CAUSED THE EXCLUSION OF WILLING

  CANDIDATES FROM THE BALLOTS.  IN SUCH CIRCUMSTANCES, THERE CAN BE

  NO TANGIBLE EVIDENCE AVAILABLE OF THE EFFECT OF THIS EXCLUSION ON

  THE ELECTION; WHETHER THE OUTCOME WOULD HAVE BEEN DIFFERENT

  DEPENDS UPON WHETHER THE SUPPRESSED CANDIDATES WERE POTENT

  VOTE-GETTERS, WHETHER MORE UNION MEMBERS WOULD HAVE VOTED HAD

  CANDIDATES NOT BEEN SUPPRESSED, AND SO FORTH.  SINCE ANY PROOF

  RELATING TO EFFECT ON OUTCOME MUST NECESSARILY BE SPECULATIVE, WE

  DO NOT THINK CONGRESS MEANT TO PLACE AS STRINGENT A BURDEN ON THE

  SECRETARY AS THE DISTRICT COURTS IMPOSED HERE." 

THE DISTRICT COURT ACKNOWLEDGED THAT THE ISSUE WAS "GOVERNED BY THE
TEACHING OF WIRTZ V. LOCAL UNIONS 410, ETC." AND CORRECTLY HELD THAT
UNDER ITS PRINCIPLE "A VIOLATION BY DISQUALIFICATION OF CANDIDATES DOES
NOT AUTOMATICALLY REQUIRE A FINDING THAT THE OUTCOME MAY HAVE BEEN
AFFECTED."  265 F.SUPP.,AT 520-521.  WE CANNOT MAKE OUT FROM THE
COURT'S OPINION, HOWEVER, WHETHER THE VIOLATION WAS REGARDED AS
ESTABLISHING A PRIMA FACIE CASE THAT THE OUTCOME WAS AFFECTED.  BUT IF
WE ASSUME THAT THE COURT ACCORDED THE VIOLATION THAT EFFECT, WE
DISAGREE WITH ITS CONCLUSION THAT THE EVIDENCE MET THAT CASE.  THE
COURT CITED THE SUBSTANTIAL DEFEAT OF THOSE "MEMBERSHIP PARTY"
CANDIDATES WHO DID RUN, THE LACK OF EVIDENCE THAT ANY OF THE
DISQUALIFIED NOMINEES WAS A PROVEN VOTE-GETTER, THE LACK OF A
SUBSTANTIAL GRIEVANCE OR ISSUE ASSERTED BY THE "MEMBERSHIP PARTY"
AGAINST THE INCUMBENTS, AND THE OVERWHELMING ADVANTAGE ENJOYED BY THE
"ADMINISTRATION PARTY" OF HAVING A FULL SLATE OF CANDIDATES.  265
F.SUPP.,AT 521.  WE DO NOT THINK THAT THESE CONSIDERATIONS CONSTITUTE
PROOF SUPPORTING THE COURT'S CONCLUSION.  NONE OF THE FACTORS RELIED ON
IS TANGIBLE EVIDENCE AGAINST THE REASONABLE POSSIBILITY THAT THE
WHOLESALE EXCLUSION OF MEMBERS DID AFFECT THE OUTCOME.  NOTHING IN THEM
NECESSARILY CONTRADICTS THE LOGICAL INFERENCE THAT SOME OR ALL OF THE
DISQUALIFIED CANDIDATES MIGHT HAVE BEEN ELECTED HAD THEY BEEN PERMITTED
TO RUN.  THE DEFEAT SUFFERED BY THE FEW CANDIDATES ALLOWED TO RUN
PROVES NOTHING ABOUT THE PERFORMANCE THAT MIGHT HAVE BEEN MADE BY THOSE
WHO DID NOT.  THE DISTRICT COURT PROPERLY PERCEIVED THAT THE BYLAW
NECESSARILY INHIBITED THE MEMBERSHIP GENERALLY FROM CONSIDERING MAKING
THE RACE, BUT HELD THAT ANY INFERENCE FROM THIS WAS DISPROVED BY "THE
HEAVY VOTE IN FAVOR OF THE ADMINISTRATION CANDIDATES . . . ."  IBID.
BUT SINCE 93% OF THE MEMBERSHIP WAS INELIGIBLE UNDER THE INVALID BYLAW,
IT IS IMPOSSIBLE TO KNOW THAT THE ELECTION WOULD NOT HAVE ATTRACTED
MANY MORE CANDIDATES BUT FOR THE BYLAW.  IN SHORT, THE CONSIDERATIONS
RELIED ON BY THE COURT ARE PURE CONJECTURE, NOT EVIDENCE.  WE THEREFORE
CONCLUDE THAT THE PRIMA FACIE CASE ESTABLISHED BY THE VIOLATION WAS NOT
MET BY EVIDENCE WHICH SUPPORTS THE DISTRICT COURT'S FINDING THAT THE
VIOLATION DID NOT AFFECT THE RESULT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTION TO ORDER A NEW ELECTION
UNDER THE SECRETARY'S SUPERVISION. 

              IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  THE BYLAW PROVIDED: 

"IN ORDER TO BE ELIGIBLE FOR NOMINATION AS AN OFFICER, A CANDIDATE
MUST POSSESS THE FOLLOWING QUALIFICATIONS:  (1) HE MUST BE A MEMBER OF
THE UNION IN CONTINUOUS GOOD STANDING FOR A PERIOD OF TWO YEARS
IMMEDIATELY PRECEDING HIS NOMINATION; (2) HE MUST BE A MEMBER OF EITHER
THE ASSEMBLY OR THE EXECUTIVE BOARD, OR ELSE, AT SOME TIME IN THE PAST,
HAVE SERVED AT LEAST ONE TERM ON EITHER THE EXECUTIVE BOARD, THE
ASSEMBLY, OR THE OLD SHOP DELEGATES COUNCIL.  IN ORDER TO BE ELIGIBLE
FOR NOMINATION AS A MEMBER OF THE EXECUTIVE BOARD, AS A DELEGATE TO THE
ASSEMBLY, OR AS A DEPARTMENT DELEGATE, A CANDIDATE MUST BE A MEMBER OF
THE UNION IN CONTINUOUS GOOD STANDING FOR A PERIOD OF AT LEAST ONE YEAR
IMMEDIATELY PRECEDING HIS NOMINATION." 

/2/  SECTION 401(E) PROVIDES IN PERTINENT PART: 

"IN ANY ELECTION REQUIRED BY THIS SECTION WHICH IS TO BE HELD BY
SECRET BALLOT A REASONABLE OPPORTUNITY SHALL BE GIVEN FOR THE
NOMINATION OF CANDIDATES AND EVERY MEMBER IN GOOD STANDING SHALL BE
ELIGIBLE TO BE A CANDIDATE AND TO HOLD OFFICE (SUBJECT TO SECTION 504
OF THIS TITLE AND TO REASONABLE QUALIFICATIONS UNIFORMLY IMPOSED) AND
SHALL HAVE THE RIGHT TO VOTE FOR OR OTHERWISE SUPPORT THE CANDIDATE OR
CANDIDATES OF HIS CHOICE, WITHOUT BEING SUBJECT TO PENALTY, DISCIPLINE,
OR IMPROPER INTERFERENCE OR REPRISAL OF ANY KIND BY SUCH ORGANIZATION
OR ANY MEMBER THEREOF . . . ."  29 U.S.C. 481(E). 

/3/  SECTION 402(C) PROVIDES: 

"IF, UPON A PREPONDERANCE OF THE EVIDENCE AFTER A TRIAL UPON THE
MERITS, THE COURT FINDS--

        .          .          .          . 

"(2) THAT THE VIOLATION OF SECTION 481 OF THIS TITLE MAY HAVE
AFFECTED THE OUTCOME OF AN ELECTION, THE COURT SHALL DECLARE THE
ELECTION, IF ANY, TO BE VOID AND DIRECT THE CONDUCT OF A NEW ELECTION
UNDER SUPERVISION OF THE SECRETARY AND, SO FAR AS LAWFUL AND
PRACTICABLE, IN CONFORMITY WITH THE CONSTITUTION AND BYLAWS OF THE
LABOR ORGANIZATION . . . ."  29 U.S.C. 482(E). 

/4/  JUDGE DIMOCK DISSENTED FROM THE REVERSAL OF THE DECLARATORY
JUDGMENT BUT CONCURRED IN THE SETTING ASIDE OF THE INJUNCTION. 
HOWEVER, HE DID NOT JOIN THE MAJORITY IN HOLDING THAT THE DISTRICT
COURT WAS WITHOUT POWER TO ENJOIN FUTURE VIOLATIONS; HIS CONCURRENCE
WAS "BASED UPON THE SECRETARY'S CONCESSION OF LACK OF POWER IN THE
DISTRICT COURT."  381 F.2D, AT 507.  THIS ISSUE IS NOT BEFORE US.

THE DISTRICT COURT DID NOT CONSIDER OTHER VIOLATIONS ALLEGED IN THE
COMPLAINT BECAUSE NO MEMBER OF LOCAL 6 HAD FIRST INVOKED UNION REMEDIES
TO REDRESS THEM PURSUANT TO SEC. 402(A).  IN LIGHT OF OUR DECISION WE
NEED NOT CONSIDER THE SECRETARY'S ARGUMENT THAT A MEMBER'S PROTEST
TRIGGERS A SEC. 402 ENFORCEMENT ACTION IN WHICH THE SECRETARY MAY
CHALLENGE ANY VIOLATION OF SEC. 401 DISCOVERED IN HIS INVESTIGATION OF
THE MEMBER'S COMPLAINT AND BROUGHT TO THE ATTENTION OF THE UNION.  CF.
WIRTZ V. LOCAL 125, LABORERS' INT'L UNION, 389 U.S. 477, 481-482. 

/15/  SEE REPORT OF THE SENATE COMMITTEE ON IMPROPER ACTIVITIES IN
THE LABOR OR MANAGEMENT FIELD, S. REP. NO.1417, 85TH CONG., 2D SESS.
(1958 (1958).  SEE DISCUSSION IN WIRTZ V. BOTTLE BLOWERS, SUPRA, AT 469
470. 

/6/  " . . . LIKE OTHER AMERICAN INSTITUTIONS SOME UNIONS HAVE
BECOME LARGE AND IMPERSONAL; THEY HAVE ACQUIRED BUREAUCRATIC TENDENCIES
AND CHARACTERISTICS; THEIR MEMBERS LIKE OTHER AMERICANS HAVE SOMETIMES
BECOME APATHETIC IN THE EXERCISE OF THEIR PERSONAL RESPONSIBILITY FOR
THE CONDUCT OF UNION AFFAIRS . . . .     ". . . (EFFECTIVE MEASURES TO
STAMP OUT CRIME AND CORRUPTION AND GUARANTEE INTERNAL UNION DEMOCRACY,
CANNOT BE APPLIED TO ALL UNIONS WITHOUT THE COERCIVE POWERS OF
GOVERNMENT . . . 

" . . . UNION MEMBERS HAVE A VITAL INTEREST . . . IN THE POLICIES AND
CONDUCT OF UNION AFFAIRS.  THE THE EXTENT THAT UNION PROCEDURES ARE
DEMOCRATIC THEY PERMIT THE INDIVIDUAL TO SHARE IN THE FORMULATION OF
UNION POLICY.  THIS IS NOT TO SAY THAT IN ORDER TO HAVE DEMOCRATICALLY
RESPONSIVE UNIONS, IT IS NECESSARY TO HAVE EACH UNION MEMBER MAKE
DECISIONS ON DETAIL AS IN A NEW ENGLAND TOWN MEETING.  WHAT IS REQUIRED
IS THE OPPORTUNITY TO INFLUENCE POLICY AND LEADERSHIP BY FREE AND
PERIODIC ELECTIONS. 

        .          .          .          . 

"IT NEEDS NO ARGUMENT TO DEMONSTRATE THE IMPORTANCE OF FREE AND
DEMOCRATIC UNION ELECTIONS . . . . THE GOVERNMENT WHICH GIVES UNIONS .
. . POWER HAS AN OBLIGATION TO INSURE THAT THE OFFICIALS WHO WIELD IT
ARE RESPONSIVE TO THE DESIRES OF THE MEN AND WOMEN WHEOM THEY
REPRESENT.  THE BEST ASSURANCE WHICH CAN BE GIVEN IS A LEGAL GUARANTY
OF FREE AND PERIODIC ELECTIONS.  THE RESPONSIVENESS OF UNION OFFICERS
TO THE WILL OF THE MEMBERS DEPENDS UPON THE FREQUENCY OF ELECTIONS, AND
AN HONEST COUNT OF THE BALLOTS.  GUARANTIES OF FAIRNESS WILL PRESERVE
THE CONFIDENCE OF THE PUBLIC AND THE MEMBERS IN THE INTEGRITY OF UNION
ELECTIONS."  S. REP. NO. 187, 86TH CONG., 1ST SESS., 6-7, 20 (1959); I
LEG.HIST.  402-403, 416.  AND SEE H.R. REP. NO. 741, 86TH CONG., 1 ST
SESS., 6-7, 15-16 (1959); I LEG.HIST.  764-765, 773-774. 

/7/  SEE, E.G., S. REP. NO. 187, SUPRA, N. 6, AT 34; H.R. REP. NO.
741, SUPRA, N. 6, AT 26-27; U LEG.HIST.  430, 784-785. 

FOR THE GENERAL BACKGROUND AND LEGISLATIVE HISTORY OF THE ACT, SEE
GENERALLY AARON, THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF
1959, 73 HARV.L.REV.  851 (1960); COX, INTERNAL AFFAIRS OF LABOR UNIONS
UNDER THE LABOR REFORM ACT OF 1959, 58 MICH.L.REV.819 (1960); LEVITAN &
LOEWENBERG, THE POLITICS AND PROVISIONS OF THE LANDRUM-GRIFFIN ACT, IN
REGULATING UNION GOVERNMENT 28 (M. ESTEY, P. TAFT, & M. WAGNER EDS
1964); REZLER, UNION ELECTIONS: THE BACKGROUND OF TITLE IV OF LMRDA, IN
SYMPOSIUM ON LMRDA 475 (R. SLOVENKO ED. 1961). 

/8/  SEE 29 U.S.C. 481(E):  "A REASONABLE OPPORTUNITY SHALL BE GIVEN
FOR THE NOMINATION OF CANDIDATES . . ."; ID., SEC. 411(A)(1):  "EVERY
MEMBER OF A LABOR ORGANIZATION SHALL HAVE EQUAL RIGHTS AND PRIVILEGES
WITHIN SUCH ORGANIZATION TO NOMINATE CANDIDATES . . . ." 

/9/  THE LOCAL HAS AMENDED ITS BYLAW TO LIBERALIZE THE CANDIDACY
REQUIREMENTS (MAKING ELIGIBLE DEPARTMENT DELEGATES AND MEMBERS OF FIVE
YEARS' GOOD STANDING) AND THE AMENDED BYLAW WAS TO GOVERN AN ELECTION
SCHEDULED FOR MAY 16, 1968.  THE DISTRICT COURT HELD THE AMENDED BYLAW
ALSO UNREASONABLE, BUT THAT RULING IS NOT BEFORE US.  265 F.SUPP.,AT
522-523.  IN ANY EVENT, RESPONDENT'S ARGUMENT THAT THE AMENDMENT
RENDERS THIS CASE MOOT IS FORECLOSED BY WIRTZ V. BOTTLE BLOWERS, SUPRA,
AT 475-476.  SEE ALSO WIRTZ V. LABORERS' UNION, SUPRA, AT 479. 

/10/  FOR EXAMPLE, THE "MEMBERSHIP PARTY" NOMINEE FOR ONE OF THE
VICE PRESIDENCIES WAS A DEPARTMENT DELEGATE (OR SHOP STEWARD) WHO HAD
BEEN ACTIVE IN HIS DISTRICT COUNCIL MEETINGS; BUT HE WAS RULED
INELIGIBLE SINCE HE HAD NOT HELD OFFICE IN THE ASSEMBLY. 

/11/  SENATOR KENNEDY HAD INTRODUCED, AND THE SENATE HAD PASSED,
SIMILAR LEGISLATION IN THE 85TH CONGRESS WHICH DIED IN THE HOUSE. 
SENATOR KENNEDY'S BILL, S. 3751, INCLUDED THE "MAY HAVE AFFECTED"
LANGUAGE.  IN INTRODUCING THE MEASURE, HE NOTED THAT "(IF THE UNITED
STATES DISTRICT COURT AGREES WITH THE SECRETARY, THAT THERE HAS BEEN A
SUBSTANTIAL VIOLATION OF THE PROVISIONS OF THE BILL, THEN HE SHALL VOID
THE ELECTION . . . ."  104 CONG.REC.  7954.  THE SENATE-PASSED VERSION,
S. 3974, RETAINED THE LANGUAGE AND THE REPORT ON THE BILL SAID THIS:
"SINCE AN ELECTION IS NOT TO BE SET ASIDE FOR TECHNICAL VIOLATIONS BUT
ONLY IF THERE IS REASON TO BELIEVE THAT THE VIOLATION HAS PROBABLY
AFFECTED THE OUTCOME OF THE ELECTION, THE SECRETARY WOULD NOT FILE A
COMPLAINT UNLESS THERE WERE ALSO PROBABLE CAUSE TO BELIEVE THAT THIS
CONDITION WAS SATISFIED . . . . AFTER A HEARING ON THE MERITS THE COURT
WOULD DETERMINE WHETHER A VIOLATION HAD OCCURRED WHICH MIGHT HAVE
AFFECTED THE OUTCOME OF AN ELECTION."  S. REP. NO. 1684, 85TH CONG.,2D
SESS., 13 (1958).  WHY SENATOR KENNEDY MODIFIED THE LANGUAGE IN S. 505
IS NOT EXPLAINED. 

/12/  THE CONFERENCE REPORT NOTED THE CHANGE AS FOLLOWS: 

"IN SUBSECTION (C) OF SECTION 402, THE CONFERENCE SUBSTITUTE ADOPTS
THE PROVISION OF THE SENATE BILL THAT DIRECTS THE COURT TO SET ASIDE AN
ELECTION IF THE VIOLATION 'MAY HAVE' AFFECTED THE OUTCOME.  UNDER THE
HOUSE AMENDMENT AN ELECTION COULD BE SET ASIDE ONLY IF THE VIOLATION
DID AFFECT THE OUTCOME."  H.R. CONF. REP. NO. 1147, 86TH CONG., 1ST
SESS., 35 (1959); I LEG.HIST.  939. 

HARRIS WEINSTEIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
WEISL, LOUIS F. CLAIBORNE, ALAN S. ROSENTHAL, ROBERT V. ZENER, CHARLES
DONAHUE, GEORGE T. AVERY, AND BEATE BLOCH. 

SIDNEY E. COHN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEFS WAS JEROME B. LURIE. 

LAURENCE GOLD ARGUED THE CAUSE FOR THE AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, AS AMICUS CURIAE, URGING
AFFIRMANCE.  WITH HIM ON THE BRIEF WERE J. ALBERT WOLL AND THOMAS E.
HARRIS. 
..END :








WITHERSPOON V. ILLINOIS, 391 U.S. 510 


       WITHERSPOON V. ILLINOIS ET AL.

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

        NO. 1015.  ARGUED APRIL 24, 1968.-- DECIDED JUNE 3, 1968. 


PETITIONER WAS ADJUDGED GUILTY OF MURDER AND THE JURY FIXED HIS
PENALTY AT DEATH.  AN ILLINOIS STATUTE PROVIDED FOR CHALLENGES FOR
CAUSE IN MURDER TRIALS "OF ANY JUROR WHO SHALL, ON BEING EXAMINED,
STATE THAT HE HAS CONSCIENTIOUS SCRUPLES AGAINST CAPITAL PUNISHMENT, OR
THAT HE IS OPPOSED TO THE SAME."  AT PETITIONER'S TRIAL THE
PROSECUTION, UNDER THAT STATUTE, ELIMINATED NEARLY HALF THE VENIRE OF
PROSPECTIVE JURORS BY CHALLENGING ALL WHO EXPRESSED QUALMS ABOUT THE
DEATH PENALTY.  MOST OF THE VENIREMEN THUS CHALLENGED FOR CAUSE WERE
EXCLUDED WITH NO EFFORT TO FIND OUT WHETHER THEIR SCRUPLES WOULD
INVARIABLY COMPEL THEM TO VOTE AGAINST CAPITAL PUNISHMENT.  THE
ILLINOIS SUPREME COURT DENIED POST-CONVICTION RELIEF.  HELD: 

1.  NEITHER ON THE BASIS OF THE RECORD IN THIS CASE NOR AS A MATTER
OF JUDICIAL NOTICE OF PRESENTLY AVAILABLE INFORMATION CAN IT BE
CONCLUDED THAT THE EXCLUSION OF JURORS OPPOSED TO CAPITAL PUNISHMENT
RESULTS IN AN UNREPRESENTATIVE JURY ON THE ISSUE OF GUILT OR
SUBSTANTIALLY INCREASES THE RISK OF CONVICTION.  PP. 516-518. 

2.  ALTHOUGH IT HAS NOT BEEN SHOWN THAT THIS JURY WAS BIASED WITH
RESPECT TO GUILT, IT IS SELF-EVIDENT THAT, IN ITS DISTINCT ROLE AS
ARBITER OF THE PUNISHMENT TO BE IMPOSED, THIS JURY FELL WOEFULLY SHORT
OF THAT IMPARTIALITY TO WHICH A DEFENDANT IS ENTITLED UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS.  P. 518. 

3.  A MAN WHO OPPOSES THE DEATH PENALTY, NO LESS THAN ONE WHO FAVORS
IT, CAN MAKE THE DISCRETIONARY CHOICE OF PUNISHMENT ENTRUSTED TO HIM BY
THE STATE AND CAN THUS OBEY THE OATH HE TAKES AS A JUROR; BUT IN A
NATION WHERE SO MANY HAVE COME TO OPPOSE CAPITAL PUNISHMENT, A JURY
FROM WHICH ALL SUCH PEOPLE HAVE BEEN EXCLUDED CANNOT PERFORM THE TASK
DEMANDED OF IT-- THAT OF EXPRESSING THE CONSCIENCE OF THE COMMUNITY ON
THE ULTIMATE QUESTION OF LIFE OR DEATH.  P. 519. 

4.  JUST AS A STATE MAY NOT ENTRUST THE DETERMINATION OF WHETHER A
MAN IS INNOCENT OR GUILTY TO A TRIBUNAL ORGANIZED TO CONVICT, SO IT MAY
NOT ENTRUST THE DETERMINATION OF WHETHER A MAN SHOULD LIVE OR DIE TO A
TRIBUNAL ORGANIZED TO RETURN A VERDICT OF DEATH; AND NO SENTENCE OF
DEATH CAN BE CARRIED OUT, REGARDLESS OF WHEN IT WAS IMPOSED, IF THE
VOIR DIRE TESTIMONY INDICATES THAT THE JURY THAT IMPOSED OR RECOMMENDED
THAT SENTENCE WAS CHOSEN BY EXCLUDING VENIREMEN FOR CAUSE SIMPLY
BECAUSE THEY VOICED GENERAL OBJECTIONS TO CAPITAL PUNISHMENT OR
EXPRESSED CONSCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST ITS INFLICTION. 
PP. 521-523. 

36 ILL.2D 471, 224 N.E.2D 259, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS BROUGHT TO TRIAL IN 1960 IN COOK COUNTY, ILLINOIS,
UPON A CHARGE OF MURDER.  THE JURY FOUND HIM GUILTY AND FIXED HIS
PENALTY AT DEATH.  AT THE TIME OF HIS TRIAL AN ILLINOIS STATUTE
PROVIDED: 

"IN TRIALS FOR MURDER IT SHALL BE A CAUSE FOR CHALLENGE OF ANY JUROR
WHO SHALL, ON BEING EXAMINED, STATE THAT HE HAS CONSCIENTIOUS SCRUPLES
AGAINST CAPITAL PUNISHMENT, OR THAT HE IS OPPOSED TO THE SAME."  /1/
THROUGH THIS PROVISION THE STATE OF ILLINOIS ARMED THE PROSECUTION WITH
UNLIMITED CHALLENGES FOR CAUSE IN ORDER TO EXCLUDE THOSE JURORS WHO, IN
THE WORDS OF THE STATE'S HIGHEST COURT, "MIGHT HESITATE TO RETURN A
VERDICT INFLICTING (DEATH)."  /2/  AT THE PETITIONER'S TRIAL, THE
PROSECUTION ELIMINATED NEARLY HALF THE VENIRE OF PROSPECTIVE JURORS BY
CHALLENGING, UNDER THE AUTHORITY OF THIS STATUTE, ANY VENIREMAN WHO
EXPRESSED QUALMS ABOUT CAPITAL PUNISHMENT.  FROM THOSE WHO REMAINED
WERE CHOSEN THE JURORS WHO ULTIMATELY FOUND THE PETITIONER GUILTY AND
SENTENCED HIM TO DEATH.  THE SUPREME COURT OF ILLINOIS DENIED POST
CONVICTION RELIEF, /3/ AND WE GRANTED CERTIORARI /4/  TO DECIDE WHETHER
THE CONSTITUTION PERMITS A STATE TO EXECUTE A MAN PURSUANT TO THE
VERDICT OF A JURY SO COMPOSED. 

        I. 

THE ISSUE BEFORE US IS A NARROW ONE.  IT DOES NOT INVOLVE THE RIGHT
OF THE PROSECUTION TO CHALLENGE FOR CAUSE THOSE PROSPECTIVE JURORS WHO
STATE THAT THEIR RESERVATIONS ABOUT CAPITAL PUNISHMENT WOULD PREVENT
THEM FROM MAKING AN IMPARTIAL DECISION AS TO THE DEFENDANT'S GUILT. 
/5/  NOR DOES IT INVOLVE THE STATE'S ASSERTION OF A RIGHT TO EXCLUDE
FROM THE JURY IN A CAPITAL CASE THOSE WHO SAY THAT THEY COULD NEVER
VOTE TO IMPOSE THE DEATH PENALTY OR THAT THEY WOULD REFUSE EVEN TO
CONSIDER ITS IMPOSITIN IN THE CASE BEFORE THEM.  FOR THE STATE OF
ILLINOIS DID NOT STOP THERE, BUT AUTHORIZED THE PROSECUTION TO EXCLUDE
AS WELL ALL WHO SAID THAT THEY WERE OPPOSED TO CAPITAL PUNISHMENT AND
ALL WHO INDICATED THAT THEY HAD CONSCIENTIOUS SCRUPLES AGAINST
INFLICTING IT.

IN THE PRESENT CASE THE TONE WAS SET WHEN THE TRIAL JUDGE SAID EARLY
IN THE VOIR DIRE, "LET'S GET THESE CONSCIENTIOUS OBJECTORS OUT OF THE
WAY, WITHOUT WASTING ANY TIME ON THEM."  IN RAPID SUCCESSION, 47
VENIREMEN WERE SUCCESSFULLY CHALLENGED FOR CAUSE ON THE BASIS OF THEIR
ATTITUDES TOWARD THE DEATH PENALTY.  ONLY FIVE OF THE 47 EXPLICITLY
STATED THAT UNDER NO CIRCUMSTANCES WOULD THEY VOTE TO IMPOSE CAPITAL
PUNISHMENT.  /6/  SIX SAID THAT THEY DID NOT "BELIEVE IN THE DEATH
PENALTY" AND WERE EXCUSED WITHOUT ANY ATTEMPT TO DETERMINE WHETHER THEY
COULD NONETHELESS RETURN A VERDICT OF DEATH.  /7/  THIRTY-NINE
VENIREMEN, INCLUDING FOUR OF THE SIX WHO INDICATED THAT THEY DID NOT
BELIEVE IN CAPITAL PUNISHMENT, ACKNOWLEDGED HAVING "CONSCIENTIOUS OR
RELIGIOUS SCRUPLES AGAINST THE INFLICTION OF THE DEATH PENALTY" OR
AGAINST ITS INFLICTION "IN A PROPER CASE" AND WERE EXCLUDED WITHOUT ANY
EFFORT TO FIND OUT WHETHER THEIR SCRUPLES WOULD INVARIABLY COMPEL THEM
TO VOTE AGAINST CAPITAL PUNISHMENT. 

ONLY ONE VENIREMAN WHO ADMITTED TO "A RELIGIOUS OR CONSCIENTIOUS
SCRUPLE AGAINST THE INFLICTION OF THE DEATH PENALTY IN A PROPER CASE"
WAS EXAMINED AT ANY LENGTH.  SHE WAS ASKED:  "YOU DON'T BELIEVE IN THE
DEATH PENALTY?"  SHE REPLIED:  "NO.  IT'S JUST I WOULDN'T WANT TO BE
RESPONSIBLE."  THE JUDGE ADMONISHED HER NOT TO FORGET HER "DUTY AS A
CITIZEN" AND AGAIN ASKED HER WHETHER SHE HAD "A RELIGIOUS OR
CONSCIENTIOUS SCRUPLE" AGAINST CAPITAL PUNISHMENT.  THIS TIME, SHE
REPLIED IN THE NEGATIVE.  MOMENTS LATER, HOWEVER, SHE REPEATED THAT SHE
WOULD NOT "LIKE TO BE RESPONSIBLE FOR . . . DECIDING SOMEBODY SHOULD BE
PUT TO DEATH."  /8/  EVIDENTLY SATISFIED THAT THIS ELABORATION OF THE
PROSPECTIVE JUROR'S VIEWS DISQUALIFIED HER UNDER THE ILLINOIS STATUTE,
THE JUDGE TOLD HER TO "STEP ASIDE."  /9/

        II. 

THE PETITIONER CONTENDS THAT A STATE CANNOT CONFER UPON A JURY
SELECTED IN THIS MANNER THE POWER TO DETERMINE GUILTY.  HE MAINTAINS
THAT SUCH A JURY, UNLIKE ONE CHOSEN AT RANDOM FROM A CROSS-SECTION OF
THE COMMUNITY, MUST NECESSARILY BE BIASED IN FAVOR OF CONVICTION, FOR
THE KIND OF JUROR WHO WOULD BE UNPERTURBED BY THE PROSPECT OF SENDING A
MAN TO HIS DEATH, HE CONTENDS, IS THE KIND OF JUROR WHO WOULD TOO
READILY IGNORE THE PRESUMPTION OF THE DEFENDANT'S INNOCENCE, ACCEPT THE
PROSECUTION'S VERSION OF THE FACTS, AND RETURN A VERDICT OF GUILT.  TO
SUPPORT THIS VIEW, THE PETITIONER REFERS TO WHAT HE DESCRIBES AS
"COMPETENT SCIENTIFIC EVIDENCE THAT DEATH-QUALIFIED JURORS ARE PARTIAL
TO THE PROSECUTION ON THE ISSUE OF GUILT OR INNOCENCE."  /10/ 

THE DATA ADDUCED BY THE PETITIONER, HOWEVER, ARE TOO TENTATIVE AND
FRAGMENTARY TO ESTABLISH THAT JURORS NOT OPPOSED TO THE DEATH PENALTY
TEND TO FAVOR THE PROSECUTION IN THE DETERMINATION OF GUILTY.  /11/  WE
SIMPLY CANNOT CONCLUDE, EITHER ON THE BASIS OF THE RECORD NOW BEFORE US
OR AS A MATTER OF JUDICIAL NOTICE, THAT THE EXCLUSION OF JURORS OPPOSED
TO CAPITAL PUNISHMENT RESULTS IN AN UNREPRESENTATIVE JURY ON THE ISSUE
OF GUILT OR SUBSTANTIALLY INCREASES THE RISK OF CONVICTION.  IN LIGHT
OF THE PRESENTLY AVAILABLE INFORMATION, WE ARE NOT PREPARED TO ANNOUNCE
A PER SE CONSTITUTIONAL RULE REQUIRING THE REVERSAL OF EVERY CONVICTION
RETURNED BY A JURY SELECTED AS THIS ONE WAS. 

        III. 

IT DOES NOT FOLLOW, HOWEVER, THAT THE PETITIONER IS ENTITLED TO NO
RELIEF.  FOR IN THIS CASE THE JURY WAS ENTRUSTED WITH TWO DISTINCT
RESPONSIBILITIES:  FIRST, TO DETERMINE WHETHER THE PETITIONER WAS
INNOCENT OR GUILTY; AND SECOND, IF GUILTY, TO DETERMINE WHETHER HIS
SENTENCE SHOULD BE IMPRISONMENT OR DEATH.  /12/  IT HAS NOT BEEN SHOWN
THAT THIS JURY WAS BIASED WITH RESPECT TO THE PETITIONER'S GUILT.  BUT
IT IS SELF-EVIDENT THAT, IN ITS ROLE AS ARBITER OF THE PUNISHMENT TO BE
IMPOSED, THIS JURY FELL WOEFULLY SHORT OF THAT IMPARTIALITY TO WHICH
THE PETITIONER WAS ENTITLED UNDER THE SIXTH AND FOURTEENTH AMENDMENTS. 
SEE GLASSER V. UNITED STATES, 315 U.S. 60, 84-86; IRVIN V. DOWD, 366
U.S. 717, 722-723; TURNER V. LOUISIANA, 379 U.S. 466, 471-473. 

THE ONLY JUSTIFICATION THE STATE HAS OFFERED FOR THE JURY-SELECTION
TECHNIQUE IT EMPLOYED HERE IS THAT INDIVIDUALS WHO EXPRESS SERIOUS
RESERVATIONS ABOUT CAPITAL PUNISHMENT CANNOT BE RELIED UPON TO VOTE FOR
IT EVEN WHEN THE LAWS OF THE STATE AND THE INSTRUCTIONS OF THE TRIAL
JUDGE WOULD MAKE DEATH THE PROEPR PENALTY.  BUT IN ILLINOIS, AS IN
OTHER STATES, /13/  THE JURY IS GIVEN BROAD DISCRETION TO DECIDE
WHETHER OR NOT DEATH IS "THE PROPER PENALTY" IN A GIVEN CASE, AND A
JUROR'S GENERAL VIEWS ABOUT CAPITAL PUNISHMENT PLAY AN INEVITABLE ROLE
IN ANY SUCH DECISION. 

A MAN WHO OPPOSES THE DEATH PENALTY, NO LESS THAN ONE WHO FAVORS IT,
CAN MAKE THE DISCRETIONARY JUDGMENT ENTRUSTED TO HIM BY THE STATE AND
CAN THUS OBEY THE OATH HE TAKES AS A JUROR.  BUT A JURY FROM WHICH ALL
SUCH MEN HAVE BEEN EXCLUDED CANNOT PERFORM THE TASK DEMANDED OF IT.
GUIDED BY NEITHER RULE NOR STANDARD, "FREE TO SELECT OR REJECT AS IT
(SEES) FIT,"  /14/  A JURY THAT MUST CHOOSE BETWEEN LIFE IMPRISONMENT
AND CAPITAL PUNISHMENT CAN DO LITTLE MORE-- AND MUST DO NOTHING LESS--
THAN EXPRESS THE CONSCIENCE OF THE COMMUNITY ON THE ULTIMATE QUESTION
OF LIFE OR DEATH.  /15/  YET, IN A NATION LESS THAN HALF OF WHOSE
PEOPLE BELIEVE INTHE DEATH PENALTY, /16/  A JURY COMPOSED EXCLUSIVELY
OF SUCH PEOPLE CANNOT SPEAK FOR THE COMMUNITY.  CULLED OF ALL WHO
HARBOR DOUBTS ABOUT THE WISDOM OF CAPITAL PUNISHMENT-- OF ALL WHO WOULD
BE RELUCTANT TO PRONOUNCE THE EXTREME PENALTY-- SUCH A JURY CAN SPEAK
ONLY FOR A DISTINCT AND DWINDLING MINORITY.  /17/ 

IF THE STATE HAD EXCLUDED ONLY THOSE PROSPECTIVE JURORS WHO STATED
IN ADVANCE OF TRIAL THAT THEY WOULD NOT EVEN CONSIDER RETURNING A
VERDICT OF DEATH, IT COULD ARGUE THAT THE RESULTING JURY WAS SIMPLY
"NEUTRAL" WITH RESPECT TO PENALTY.  /18/  BUT WHEN IT SWEPT FROM THE
JURY ALL WHO EXPRESSED CONSCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST
CAPITAL PUNISHMENT AND ALL WHO OPPOSED IT IN PRINCIPLE, THE STATE
CROSSED THE LINE OF NEUTRALITY.  IN ITS QUEST FOR A JURY CAPABLE OF
IMPOSING THE DEATH PENALTY, THE STATE PRODUCED A JURY UNCOMMONLY
WILLING TO CONDEMN A MAN TO DIE.  /19/ 

IT IS, OF COURSE, SETTLED THAT A STATE MAY NOT ENTRUST THE
DETERMINATION OF WHETHER A MAN IS INNOCENT OR GUILTY TO A TRIBUNAL
"ORGANIZED TO CONVICT."  FAY V. NEW YORK, 332 U.S. 261, 294.  SEE TUMEY
V. OHIO, 273 U.S. 510.  IT REQUIRES BUT A SHORT STEP FROM THAT
PRINCIPLE TO HOLD, AS WE DO TODAY, THAT A STATE MAY NOT ENTRUST THE
DETERMINATION OF WHETHER A MAN SHOULD LIVE OR DIE TO A TRIBUNAL
ORGANIZED TO RETURN A VERDICT OF DEATH.  /20/  SPECIFICALLY, WE HOLD
THAT A SENTENCE OF DEATH CANNOT BE CARRIED OUT IF THE JURY THAT IMPOSED
OR RECOMMENDED IT WAS CHOSEN BY EXCLUDING VENIREMEN FOR CAUSE SIMPLY
BECAUSE THEY VOICED GENERAL OBJECTIONS TO THE DEATH PENALTY OR
EXPRESSED CONSCIENTIOUS OR RELIGIOHS SCRUPLES AGAINST ITS INFLICTION. 
/21/  NO DEFENDANT CAN CONSTITUTIONALLY BE PUT TO DEATH AT THE HANDS OF
A TRIBUNAL SO SELECTED.  /22/ 

WHATEVER ELSE MIGHT BE SAID OF CAPITAL PUNISHMENT, IT IS AT LEASE
CLEAR THAT ITS IMPOSITION BY A HANGING JURY CANNOT BE SQUARED WITH THE
CONSTITUTION.  THE STATE OF ILLINOIS HAS STACKED THE DECK AGAINST THE
PETITIONER.  TO EXECUTE THIS DEATH SENTENCE WOULD DEPRIVE HIM OF HIS
LIFE WITHOUT DUE PROCESS OF LAW. 

              REVERSED. 

MR. JUSTICE DOUGLAS. 

MY DIFFICULTY WITH THE OPINION OF THE COURT IS A NARROW BUT
IMPORTANT ONE.  THE COURT PERMITS A STATE TO ELIMINATE FROM JURIES SOME
OF THOSE WHO HAVE CONSCIENTIOUS SCRUPLES AGAINST THE DEATH PENALTY; BUT
IT ALLOWS THOSE TO SERVE WHO HAVE NO SCRUPLES AGAINST IT AS WELL AS
THOSE WHO, HAVING SUCH SCRUPLES, NEVERTHELESS ARE DEEMED ABLE TO
DETERMINE AFTER A FINDING OF GUILT WHETHER THE DEATH PENALTY OR A
LESSER PENALTY SHOULD BE IMPOSED.  I FAIL TO SEE OR UNDERSTAND THE
CONSTITUTIONAL DIMENSIONS OF THOSE DISTINCTIONS. 

THE CONSTITUTIONAL QUESTION IS WHETHER THE JURY MUST BE "IMPARTIALLY
DRAWN FROM A CROSS-SECTION OF THE COMMUNITY," OR WHETHER IT CAN BE
DRAWN WITH SYSTEMATIC AND INTENTIONAL EXCLUSION OF SOME QUALIFIED
GROUPS, TO USE MR.JUSTICE MURPHY'S WORDS IN HIS DISSENT IN FAY V. NEW
YORK, 332 U.S. 261, 296. 

FAY V. NEW YORK, WHICH INVOLVED A CONVICTION OF UNION LEADERS FOR
EXTORTION, WAS THE "BLUE RIBBON" JURY CASE IN WHICH THE JURY WAS
WEIGHTED IN FAVOR OF PROPERTIED PEOPLE MORE LIKELY TO CONVICT FOR
CERTAIN KINDS OF CRIMES.  THE DECISION WAS 5-4, MR. JUSTICE MURPHY
SPEAKING FOR MR. JUSTICE BLACK, MR. JUSTICE RUTLEDGE, AND MYSELF: 

"THERE IS NO CONSTITUTIONAL RIGHT TO A JURY DRAWN FROM A GROUP OF
UNEDUCATED AND UNINTELLIGENT PERSONS.  NOR IS THERE ANY RIGHT TO A JURY
CHOSEN SOLELY FOR THOSE AT THE LOWER END OF THE ECONOMICA AND SOCIAL
SCALE.  BUT THERE IS A CONSTITUTIONAL RIGHT TO A JURY DRAWN FROM A
GROUP WHICH REPRESENTS A CROSS-SECTION OF THE COMMUNITY.  AND A CROSS
TRAINING AND INTELLIGENCE AND WITH VARYING ECONOMIC AND SOCIAL
POSITIONS.  UNDER OUR CONSTITUTION, THE JURY IS NOT TO BE MADE THE
REPRESENTATIVE OF THE MOST INTELLIGENT, THE MOST WEALTHY OR THE MOST
SUCCESSFUL, NOR OF THE LEAST INTELLIGENT, THE LEAST WEALTHY OR THE
LEAST SUCCESSFUL.  IT IS DEMOCRATIC INSTITUTION, REPRESENTATIVE OF ALL
QUALIFIED CLASSES OF PEOPLE."  ID., AT 299-300. 

THE IDEA THAT A JURY SHOULD BE "IMPARTIALLY DRAWN FROM A CROSS
ONLY THOSE WITH A PREDISPOSITION TO IMPOSE THE SEVEREST SENTENCE OR
WITH A PRE-DISPOSITION TO IMPOSE THE LEAST ONE THAT IS POSSIBLE. 

THE PROBLEM IS PRESENTED IN DIFFERENT POSTURES UNDER SEVERAL TYPES
OF STATE LAWS.  MANY STATES, INCLUDING ILLINOIS, SPECIFICALLY GRANT THE
JURY DISCRETION AS TO PENALTY; 24 IN SOME, THIS DISCRETION IS EXERCISED
AT A SPECIAL PENALTY TRIAL, CONVENED AFTER A VERDICT OF GUILT HAS BEEN
RETURNED.  25 IN OTHER STATES DEATH IS IMPOSED UPON A CONVICTION OF
FIRST DEGREE MURDER UNLESS THE JURY RECOMMENDS MERCY OR LIFE
IMPRISONMENT, 26 ALTHOUGH IN THESE STATES THE JURY IS ALLOWED TO FIND A
LESSER DEGREE OF MURDER (OR TO FIND MANSLAUGHTER, IF UNDER STATE LAW
THERE ARE NO DEGREES OF MURDER), IF THE EVIDENCE WILL PERMIT, WITHOUT
REGARD TO THE FORMAL CHARGE.  /27/  IN SOME STATES, THE DEATH PENALTY
IS MANDATORY FOR CERTAIN TYPES OF CRIMES.  /28/  IN STILL OTHERS, IT
HAS BEEN ABOLISHED EITHER IN WHOLE OR IN PART.  /29/ FEW STATES HAVE
SPECIAL RULES WHICH DO NOT FIT PRECISELY INTO THE ABOVE CATEGORIES. 
/30/ 

A FAIR CROSS-SECTION OF THE COMMUNITY MAY PRODUCE A JURY ALMOST
CERTAIN TO IMPOSE THE DEATH PENALTY IF GUILTY WERE FOUND; OR IT MAY
PRODUCE A JURY ALMOST CERTAIN NOT TO IMPOSE IT.  THE CONSCIENCE OF THE
COMMUNITY IS SUBJECT TO MANY VARIABLES, ONE OF WHICH IS THE ATTITUDE
TOWARD THE DEATH SENTENCE.  IF A PARTICULAR COMMUNITY WERE
OVERWHELMINGLY OPPOSED TO CAPITAL PUNISHMENT, IT WOULD NOT BE ABLE TO
EXERCISE A DISCRETION TO IMPOSE OR NOT IMPOSE THE DEATH SENTENCE.  A
JURY REPRESENTING THE CONSCIENCE OF THAT COMMUNITY WOULD DO ONE OF
SEVERAL THINGS DEPENDING ON THE TYPE OF STATE LAW GOVERNING IT:  IT
WOULD AVOID THE DEATH PENALTY BY RECOMMENDING MERCY OR IT WOULD AVOID
IT BY FINDING GUILT OF A LESSER OFFENSE.     IN SUCH INSTANCE, WHY
SHOULD NOT AN ACCUSED HAVE THE BENEFIT OF THAT CONTROLLING PRINCIPLE OF
MERCY IN THE COMMUNITY?  WHY SHOULD HIS FATE BE ENTRUSTED EXCLUSIVELY
TO A JURY THAT WAS EITHER ENTHUSIASTIC ABOUT CAPITAL PUNISHMENT OR SO
UNDECIDED THAT IT COULD EXERCISE A DISCRETION TO IMPOSE IT OR NOT,
DEPENDING ON HOW IT FELT ABOUT THE PARTICULAR CASE? 

I SEE NO CONSTITUTIONAL BASIS FOR EXCLUDING THOSE WHO ARE SO OPPOSED
TO CAPITAL PUNISHMENT THAT THEY WOULD NEVER INFLICT IT ON A DEFENDANT. 
EXCLUSION OF THEM MEANS THE SELECTION OF JURORS WHO ARE EITHER
PROTAGONISTS OF THE DEATH PENALTY OR NEUTRAL CONCERNING IT.  THAT
RESULTS IN A SYSTEMATIC EXCLUSION OF QUALIFIED GROUPS, AND THE
DEPRIVATION TO THE ACCUSED OF A CROSS-SECTION OF THE COMMUNITY FOR
DECISION ON BOTH HIS GUILT AND HIS PUNISHMENT. 

THE COURT IN LOGAN V. UNITED STATES, 144 U.S. 263, 298, HELD THAT
PROSPECTIVE JURORS WHO HAD CONSCIENTIOUS SCRUPLES CONCERNING INFLICTION
OF THE DEATH PENALTY WERE RIGHTLY CHALLENGED BY THE PROSECTUION FOR
CAUSE, STATING THAT SUCH JURORS WOULD BE PREVENTED "FROM STANDING
INDIFFERENT BETWEEN THE GOVERNMENT AND THE ACCUSED, AND FROM TRYING THE
CASE ACCORDING TO THE LAW AND THE EVIDENCE.  . . . "  THAT WAS A
FEDERAL PROSECUTION, THE REQUIREMENT BEING "AN IMPARTIAL JURY" AS
PROVIDED IN THE SIXTH AMENDMENT, A REQUIREMENT NOW APPLICABLE TO THE
STATES BY REASON OF THE INCORPORATION OF THE JURY CLAUSE OF THE SIXTH
AMENDMENT INTO THE DUE PROCESS CLAUSE OF THE FOURTEENTH.  DUNCAN V.
LOUISIANA, ANTE, P.145. 

BUT WHERE A STATE LEAVES THE FIXING OF THE PENALTY TO THE JURY, OR
PROVIDES FOR A LESSER PENALTY ON RECOMMENDATION OF MERCY BY THE JURY,
OR GIVES THE JURY POWER TO FIND GUILT IN A LESSER DEGREE, THE LAW
LEAVES THE JURY GREAT LEEWAY.  THOSE WITH SCRUPLES AGAINST CAPITAL
PUNISHMENT CAN TRY THE CASE "ACCORDING TO THE LAW AND THE EVIDENCE,"
BECAUSE THE LAW DOES NOT CONTAIN THE INEXORABLE COMMAND OF "AN EYE FOR
AN EYE."  RATHER "THE LAW" LEAVES THE DEGREE OF PUNISHMENT TO THE
JURY.  LOGAN V. UNITED STATES IN THE SETTING OF THE PRESENT CASE /31/
DOES NOT STATE WHAT I BELIEVE IS THE PROPER RULE.  WHETHER IN OTHER
CIRCUMSTANCES IT STATES A DEFENSIBLE RULE IS A QUESTION WE NEED NOT
REACH.  WHERE THE JURY HAS THE DISCRETION TO IMPOSE THE DEATH PENALTY
OR NOT TO IMPOSE IT, THE LOGAN RULE IS, IN MY OPINION, AN IMPROPER
ONE.  FOR IT RESULTS IN WEEDING OUT THOSE MEMBERS OF THE COMMUNITY MOST
LIKELY TO RECOMMEND MERCY AND TO LEAVE IN THOSE MOST LIKELY NOT TO
RECOMMEND MERCY.  /32/ 

CHALLENGES FOR CAUSE AND PEREMPTORY CHALLENGES DO NOT CONFLICT WITH
THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO TRIAL BY AN "IMPARTIAL
JURY."  NO ONE IS GUARANTEED A PARTIAL JURY.  SUCH CHALLENGES GENERALLY
ARE HIGHLY INDIVIDUALIZED NOT RESULTING IN DEPRIVING THE TRIAL OF AN
ENTIRE CLASS OR OF VARIOUS SHADES OF COMMUNITY OPINION OR OF THE
"SUBTLE INTERPLAY OF INFLUENCE" OF ONE JUROR ON ANOTHER.  BALLARD V.
UNITED STATES, 329 U.S. 187, 193.  IN THE PRESENT CASE, HOWEVER, WHERE
THE JURY IS GIVEN DISCRETION IN FIXING PUNISHMENT, /33/  THE WHOLESALE
EXCLUSION OF A CLASS THAT MAKES UP A SUBSTANTIAL PORTION OF THE
POPULATION /34/  PRODUCES AN UNREPRESENTATIVE JURY.  /35/ 

ALTHOUGH THE COURT REVERSES AS TO PENALTY, IT DECLINES TO REVERSE
THE VERDICT OF GUILT RENDERED BY THE SAME JURY.  IT DOES SO ON THE
GROUND THAT PETITIONER HAS NOT DEMONSTRATED ON THIS RECORD THAT THE
JURY WHICH CONVICTED HIM WAS "LESS THAN NEUTRAL WITH RESPECT TO
GUILTY," ANTE, AT 520, N. 18, BECAUSE OF THE EXCLUSION OF ALL THOSE
OPPOSED IN SOME DEGREE TO CAPITAL PUNISHMENT.  THE COURT FAILS TO FIND
ON THIS RECORD "AN UNREPRESENTATIVE JURY ON THE ISSUE OF GUILT."  ANTE,
AT 518.  BUT WE DO NOT REQUIRE A SHOWING OF SPECIFIC PREJUDICE WHEN A
DEFENDANT HAS BEEN DEPRIVED OF HIS RIGHT TO A JURY REPRESENTING A CROSS
195; WARE V. UNITED STATES, 123 U.S.APP.D.C. 34, 356 F.2D 787 (1965). 
WE CAN AS EASILY ASSUME THAT THE ABSENCE OF THOSE OPPOSED TO CAPITAL
PUNISHMENT WOULD ROB THE JURY OF CERTAIN PECULIAR QUALITIES OF HUMAN
NATURE AS WOULD THE EXCLUSION OF WOMEN FROM JURIES.  BALLARD V. UNITED
STATES, 329 U.S.,AT 193-194.  I WOULD NOT REQUIRE A SPECIFIC SHOWING OF
A LIKELIHOOD OF PREJUDICE, FOR I FEEL THAT WE MUST PROCEED ON THE
ASSUMPTION THAT IN MANY, IF NOT MOST, CASES OF CLASS EXCLUSION ON THE
BASIS OF BELIEFS OR ATTITUDES SOME PREJUDICE DOES RESULT AND MANY TIMES
WILL NOT BE SUBJECT TO PRECISE MEASUREMENT.  INDEED, THAT PREJUDICE "IS
SO SUBTLE, SO INTANGIBLE, THAT IT ESCAPES THE ORDINARY METHODS OF
PROOF."  FAY V. NEW YORK, 332 U.S.,AT 300 (DISSENTING OPINION).  IN MY
VIEW, THAT IS THE ESSENCE OF THE REQUIREMENT THAT A JURY BE DRAWN FROM
A CROSS-SECTION OF THE COMMUNITY. 

/1/  ILL. REV. STAT., C. 38, SEC. 743 (1959).  THE SECTION WAS RE
ENACTED IN 1961 BUT WAS NOT EXPRESSLY REPEATED IN THE CODE OF CRIMINAL
PROCEDURE OF 1963.  ILL. RE. STA., C. 38, SEC. 115-4(D) (1967) NOW
PROVIDES ONLY THAT "(EACH PARTY MAY CHALLENGE JURORS FOR CAUSE,"  BUT
THE ILLINOIS SUPREME COURT HAS HELD THAT SEC. 115-4(D) INCORPORATES
FORMER SEC. 743.  PEOPLE V. HOBBS, 35 ILL.2D 263, 274, 220 N.E.2D 469,
475. 

/2/  "IN THE TRIAL OF THE CASE WHERE CAPITAL PUNISHMENT MAY BE
INFLICTED A JUROR WHO HAS RELIGIOUS OR CONSCIENTIOUS SCRUPLES AGAINST
CAPITAL PUNISHMENT MIGHT HESITATE TO RETURN A VERDICT INFLICTING SUCH
PUNISHMENT, AND IN THE PRESENT PROCEEDINGS (A POST-SENTENCE SANITY
HEARING) A JUROR HAVING SUCH SCRUPLES MIGHT LIKEWISE HESITATE IN
RETURNING A VERDICT FINDING (THE DEFENDANT) SANE, WHICH IN EFFECT
CONFIRMS THE DEATH SENTENCE."  PEOPLE V. CARPENTER, 13 ILL.2D 470, 476,
150 N.E.2D 100, 103. 

/3/  36 ILL.2D 471, 224 N.E.2D 259. 

/4/  389 U.S. 1035. 

/5/  UNLIKE THE STATUTORY PROVISION IN THIS CASE, STATUTES AND RULES
DISQUALIFYING JURORS WITH SCRUPLES AGAINST CAPITAL PUNISHMENT ARE OFTEN
COUCHED IN TERMS OF RESERVATIONS AGAINST FINDING A MAN GUILTY WHEN THE
PENALTY MIGHT BE DEATH.  SEE, E.G., CAL. PENAL CODE, SEC. 1074, SUBD.
8.  YET, DESPITE SUCH LANGUAGE, COURTS IN OTHER STATES HAVE SOMETIMES
PERMITTED THE EXCLUSION FOR CAUSE OF JURORS OPPOSED TO THE DEATH
PENALTY EVEN IN THE ABSENCE OF A SHOWING THAT THEIR SCRUPLES WOULD HAVE
INTERFERED WITH THEIR ABILITY TO DETERMINE GUILT IN ACCORDANCE WITH THE
EVIDENCE AND THE LAW.  SEE, E.G., STATE V. THOMAS, 78 ARIZ. 52, 58, 275
P.2D 408; PEOPLE V. NICOLAUS, 65 CAL.2D 866, 882, 423 P.2D 787, 798;
PICCOTT V. STATE, 116 SO.2D 626, 628 (FLA.); COMMONWEALTH V. LADETTO,
349 MASS. 237, 246, 207 N.E.2D 536, 542; STATE V. WILLIAMS, 50 NEV.
271, 278, 257 P. 614 621; SMITH V. STATE, 5 OKLA.CR. 282, 284, 114 P.
350, 351; STATE V. JENSEN 209 ORE.  239, 281, 296 P.2D 618, 635; STATE
V. LEUCH, 198 WASH. 331, 333-337 88 P.2D 440, 441-442. 

/6/  THE STATE STRESSES THE FACT THAT THE JUDGE WHO PRESIDED DURING
THE VOIR DIRE IMPLED SEVERAL TIMES THAT ONLY THOSE JURORS WHO COULD
NEVER AGREE TO A VERDICT OF DEATH SHOULD DEEM THEMSELVES DISQUALIFIED
BECAUSE OF THEIR SCRUPLES AGAINST CAPITAL PUNISHMENT.  THE RECORD
SHOWS, HOWEVER, THAT THE REMARKS RELIED UPON BY THE STATE WERE NOT MADE
WITHIN THE HEARING OF EVERY VENIREMAN ULTIMATELY EXCUSED FOR CAUSE
UNDER THE STATUTE.  ON THE CONTRARY, THREE SEPARATE VENIRES WERE CALLED
INTO THE COURTROOM, AND IT APPEARS THAT AT LEAST 30 OF THE 47 VENIREMEN
ELIMINATED IN THIS CASE WERE NOT EVEN PRESENT WHEN THE STATEMENTS IN
QUESTION WERE MADE. 

/7/  IT IS ENTIRELY POSSIBLE, OF COURSE, THAT EVEN A JUROR WHO
BELIEVES THAT CAPITAL PUNISHMENT SHOULD NEVER BE INFLICTED AND WHO IS
IRREVOCABLY COMMITTED TO ITS ABOLITION COULD NONETHELESS SUBORDINATE
HIS PERSONAL VIEWS TO WHAT HE PERCEIVED TO BE HIS DUTY TO ABIDE BY HIS
OATH AS A JUROR AND TO OBEY THE LAW OF THE STATE.  SEE COMMONWEALTH V.
WEBSTER, 59 MASS. 295, 298.  SEE ALSO ATKINS V. STATE, 16 ARK. 568,
580; WILLIAMS V. STATE, 32 MISS.  389, 395-396; RHEA V. STATE, 63 NEB.
461, 472-473, 88 N.W. 789, 792. 

/8/  COMPARE SMITH V. STATE, 55 MISS.  410, 413-414:  "THE
DECLARATION OF THE REJECTED JURORS, IN THIS CASE, AMOUNTED ONLY TO A
STATEMENT THAT THEY WOULD NOT LIKE . . . A MAN TO BE HUNG.  FEW MEN
WOULD.  EVERY RIGHT-THINKING MAN WOULD REGARD IT AS A PAINFUL DUTY TO
PRONOUNCE A VERDICT OF DEATH UPON HIS FELLOW-MAN . . . . FOR THE ERROR
IN IMPROPERLY REJECTING (THESE) TWO MEMBERS OF THE SPECIAL VENIRE THE
CASE MUST BE REVERSED." 

/9/  AS THE VOIR DIRE EXAMINATION OF THIS VENIREMAN ILLUSTRATES, IT
CANNOT BE ASSUMED THAT A JUROR WHO DESCRIBES HIMSELF AS HAVING
"CONSCIENTIOUS OR RELIGIOUS SCRUPLES" AGAINST THE INFLICTION OF THE
DEATH PENALTY OR AGAINST ITS INFLICTION "IN A PROPER CASE" (SEE PEOPLE
V. BANDHAUER, 66 CAL.2D 524, 531, 426 P.2D 900, 905) THEREBY AFFIRMS
THAT HE COULD NEVER VOTE IN FAVOR OF IT OR THAT HE WOULD NOT CONSIDER
DOING SO IN BE CASE BEFORE HIM.  SEE ALSO THE VOIR DIRE IN RHEA V.
STATE, 63 NEB. 461, 466-468, 88 N.W. 789, 790.  CF. STATE V. WILLIAMS,
50 NEV. 271, 278, 257 P. 619, 621.  OBVIOUSLY MANY JURORS "COULD,
NOTWITHSTANDING THEIR CONSCIENTIOUS SCRUPLES (AGAINST CAPITAL
PUNISHMENT), RETURN . . . (A) VERDICT (OF DEATH) AND . . . MAKE THEIR
SCRUPLES SUBSERVIENT TO THEIR DUTY AS JURORS."  STRATTON V. PEOPLE, 5
COLO. 276, 277.  CF. COMMONWEALTH V. HENDERSON, 242 PA. 327, 377, 89 A.
567, 569.  YET SUCH JURORS HAVE FREQUENTLY BEEN DEEMED UNFIT TO SERVE
IN A CAPITAL CASE.  SEE, E.G., RHEA V. STATE, SUPRA, 63 NEB.,AT 470
471, 88 N.W.,AT 791-792.  SEE GENERALLY OBERER, DOES DISQUALIFICATION
OF JURORS FOR SCRUPLES AGAINST CAPITAL UNISHMENT CONSTITUTE DENIAL OF
FAIR TRIAL ON ISSUE OF GUILT?, 39 TEX.L.REV.  545, 547-548 (1961);
COMMENT, 1968 DUKEL.J. 283, 295-299. 

THE CRITICAL QUESTION, OF COURSE, IS NOT HOW THE PHRASES EMPLOYED IN
THIS AREA HAVE BEEN CONSTRUED BY COURTS AND COMMENTATORS.  WHAT MATTERS
IS HOW THEY MIGHT BE UNDERSTOOD-- OR MISUNDERSTOOD-- BY PROSPECTIVE
JURORS.  ANY "LAYMAN . . . (MIGHT) SAY HE HAS SCRUPLES IF HE IS
SOMEWHAT UNHAPPY ABOUT DEATH SENTENCES . . . . (THUS) A GENERAL
QUESTION AS TO THE PRESENCE OF . . . RESERVATIONS (OR SCRUPLES) IS FAR
FROM THE INQUIRY WHICH SEPARATES THOSE WHO WOULD NEVER VOTE FOR THE
ULTIMATE PENALTY FROM THOSE WHO WOULD RESERVE IT FOR THE DIREST
CASES."  ID., AT 308-309.  UNLESS A VENIREMAN STATES UNAMBIGUOUSLY THAT
HE WOULD AUTOMATICALLY VOTE AGAINST THE IMPOSITION OF CAPITAL
PUNISHMENT NO MATTER WHAT THE TRIAL MIGHT REVEAL, IT SIMPLY CANNOT BE
ASSUMED THAT THAT IS HIS POSITION. 

/10/  IN HIS BRIEF, THE PETITIONER CITES TWO SURVEYS, ONE INVOLVING
187 COLLEGE STUDENTS, W. C. WILSON, BELIEF IN CAPITAL PUNISHMENT AND
JURY PERFORMANCE (UNPUBLISHED MANUSCRIPT, UNIVERSITY OF TEXAS, 1964),
AND THE OTHER INVOLVING 200 COLLEGE STUDENTS, F. J. GOLDBERG, ATTITUDE
TOWARD CAPITAL PUNISHMENT AND BEHAVIOR AS A JUROR IN SIMULATED CAPITAL
CASES (UNPUBLISHED MANUSCRIPT, MOREHOUSE COLLEGE, UNDATED).  IN HIS
PETITION FOR CERTIORARI, HE CITED A STUDY BASED UPON INTERVIEWS WITH
1,248 JURORS IN NEW YORK AND CHICAGO.  A PRELIMINARY, UNPUBLISHED
SUMMARY OF THE RESULTS OF THAT STUDY STATED THAT "A JURY CONSISTING
ONLY OF JURORS WHO HAVE NO SCRUPLES AGAINST THE DEATH PENALTY IS LIKELY
TO BE MORE PROSECUTION PRONE THAN A JURY ON WHICH OBJECTORS TO THE
DEATH PENALTY SIT," AND THAT "THE DEFENDANT'S CHANCES OF ACQUITTAL ARE
SOMEWHAT REDUCED IF THE OBJECTORS ARE EXCLUDED FROM THE JURY."  H.
ZEISEL, SOME INSIGHTS INTO THE OPERATION OF CRIMINAL JURIES 42
(CONFIDENTIAL FIRST DRAFT, UNIVERSITY OF CHICAGO, NOVEMBER 1957). 

/11/  DURING THE POST-CONVICTION PROCEEDINGS HERE UNDER REVIEW, THE
PETITIONER'S COUNSEL ARGUED THAT THE PROSECUTION-PRONE CHARACTER OF
"DEATH-QUALIFIED" JURIES PRESENTED "PURELY A LEGAL QUESTION," THE
RESOLUTION OF WHICH REQUIRED "NO ADDITIONAL PROOF" BEYOND "THE FACTS .
. . DISCLOSED BY THE TRANSCRIPT OF THE VOIR DIRE EXAMINATION . . . ." 
COUNSEL SOUGHT AN "OPPORTUNITY TO SUBMIT EVIDENCE" IN SUPPORT OF
SEVERAL CONTENTIONS UNRELATED TO THE ISSUE INVOLVED HERE.  ON THIS
ISSUE, HOWEVER, NO SIMILAR REQUEST WAS MADE, AND THE STUDIES RELIED
UPON BY THE PETITIONER IN THIS COURT WERE NOT MENTIONED.  WE CAN ONLY
SPECULATE, THEREFORE, AS TO THE PRECISE MEANING OF THE TERMS USED IN
THOSE STUDIES, THE ACCURACY OF THE TECHNIQUES EMPLOYED, AND THE
VALIDITY OF THE GENERALIZATIONS MADE.  UNDER THESE CIRCUMSTANCES, IT IS
NOT SURPRIZING THAT THE AMICUS CURIAE BRIEF FILED BY THE NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND FINDS IT NECESSARY TO OBSERVE THAT, WITH
RESPECT TO BIAS IN FAVOR OF THE PROSECUTION ON THE ISSUE OF GUILT, THE
RECORD IN THIS CASE IS "ALMOST TOTALLY LACKING IN THE SORT OF FACTUAL
INFORMATION THAT WOULD ASSIST THE COURT." 

/12/  AT THE TIME OF THE PETITIONER'S TRIAL, THE JURY'S PENALTY
DETERMINATION WAS BINDING UPON THE JUDGE.  ILL. REV. STAT., C. 38,
SECS. 360, 801 (1959).  THAT IS NO LONGER THE CASE IN ILLINOIS, FOR THE
TRIAL JUDGE IS NOW EMPOWERED TO REJECT A JURY RECOMMENDATION OF DEATH,
ILL. REV. STAT., C. 38, SEC. 1-7(C)(1) (1967[, BUT NOTHIN IN OUR
DECISION TURNS UPON WHETHER THE JUDGE IS BOUND TO FOLLOW SUCH A
RECOMMENDATION. 

/13/  SEE GENERALLY H. KALVEN & H. ZEISEL, THE AMERICAN JURY 435,
444, 448-449 (1966). 

/14/  PEOPLE V. BERNETTE, 30 ILL.2D 359, 370, 197 N.E.2D 436, 443. 

/15/  IT IS SUGGESTED IN A DISSENTING OPINION TODAY THAT THE STATE
OF ILLINOIS MIGHT "IMPOSE A PARTICULAR PENALTY, INCLUDING DEATH, ON ALL
PERSONS CONVICTED OF CERTAIN CRIMES."  POST, AT 541.  BUT ILLINOIS HAD
ATTEMPTED NO SUCH THING.  NOR HAS IT DEFINED A CATEGORY OF CAPITAL
CASES IN WHICH "DEATH (IS) THE PREFERRED PENALTY."  PEOP.E V. BERNETTE,
SUPRA, AT 369, 197 N.E.2D,AT 442.  INSTEAD, IT HAD DELIBERATELY "MADE .
. . THE DEATH PENALTY . . . AN OPTIONAL FORM OF PUNISHMENT WHICH (THE
JURY REMAINS) FREE TO SELECT OR REJECT AS IT (SEES) FIT."  30 ILL.2D.AT
370, 197 N.E.2D,AT 443.  AND ONE OF THE MOST IMPORTANT FUNCTIONS ANY
JURY CAN PERFORM IN MAKING SUCH A SELECTION IS TO MAINTAIN A LINK
BETWEEN CONTEMPORARY COMMUNITY VALUES AND THE PENAL SYSTEM-- A LINK
WITHOUT WHICH THE DETERMINATION OF PUNISHMENT COULD HARDLY REFLECT "THE
SOCIETY."  TROP V. DULLES, 356 U.S. 86, 101 (OPINION OF THE CHIEF
JUSTICE, JOINED BY MR. JUSTICE BLACK, RM. JUSTICE DOUGLAS, AND MR.
JUSTICE WHITTAKER).  CF. N. 19, INFRA.     /16/  IT APPEARS THAT, IN
1966, APPROXIMATELY 42% OF THE AMERICAN PUBLIC FAVORED CAPITAL
PUNISHMENT FOR CONVICTED MURDERERS, WHILE 47% OPPOSED IT AND 11% WERE
UNDECIDED.  POLLS, INTERNATIONAL REVIEW ON PUBLIC OPINION, VOL. II, NO.
3, AT 84 (1967).  IN 1960, THE COMPARABLE FIGURES WERE 51% IN FAVOR,
36% OPPOSED, AND 13% UNDECIDED.  IBID. 

/17/  COMPARE ARTHUR KOESTLER'S OBSERVTION: 

"THE DIVISION IS NOT BETWEEN RICH AND POOR, HIGHBROW AND LOWBROW,
CHIRSTIANS AND ATHEISTS:  IT IS BETWEEN THOSE WHO HAVE CHARITY AND
THOSE WHO HAVE NOT . . . . THE TEST OF ONE'S HUMANITY IS WHETHER ONE IS
ABLE TO ACCEPT THIS FACT-- NOT AS LIP SERVICE, BUT WITH THE SHUDDERING
RECOGNITION OF A KINSHIP:  HERE BUT FOR THE GRACE OF GOD, DROP I." 
KOESTLER, REFLECTIONS ON HANGING 166-167 (1956). 

/18/  EVEN SO, A DEFENDANT CONVICTED BY SUCH A JURY IN SOME FUTURE
CASE MIGHT STILL ATTEMPT TO ESTABLISH THT THE JURY WAS LESS THAN
NEUTRAL WITH RESPECT TO GUILT.  IF HE WERE TO SUCCEED IN THAT EFFORT,
THE QUESTION WOULD THEN ARISE WHETHER THE STATE'S INTEREST IN
SUBMITTING THE PENALTY ISSUE TO A JURY CAPABLE OF IMPOSING CAPITAL
PUNISHMENT MAY BE VINDICATED AT THE EXPENSE OF THE DEFENDANT'S INTEREST
IN A COMPLETELY FAIR DETERMINATION OF GUILT OR INNOCENCE-- GIVEN THE
POSSIBILITY OF ACCOMMODATING BOTH INTERESTS BY MEANS OF A BIFURCATED
TRIAL, USING ONE JURY TO DECIDE GUILT AND ANOTHER TO FIX PUNISHMENT. 
THAT PROBLEM IS NOT PRESENTED HERE, HOWEVER, AND WE INTIMATE NO VIEW AS
TO ITS PROPER RESOLUTION. 

/19/  THE AMICUS CURIAE BRIEF FILED IN THIS CASE BY THE AMERICAN
FRIENDS SERVICE COMMITTEE ET AL. NOTES THAT THE NUMBER OF PERSONS UNDER
SENTENCE OF DEATH IN THIS COUNTRY CLIMBED FROM 300 AT THE END OF 1963
TO 406 AT THE END OF 1966, WHILE THE NUMBER OF PERSONS ACTUALLY
EXECUTED FELL FROM 21 IN 1963 TO 15 IN 1964, SEVEN IN 1965, AND ONE IN
1966.  THE BRIEF SUGGESTS THAT THIS PHENOMENON MIGHT BE EXPLAINED IN
PART BY SOCIETY'S "DEEP RELUCTANCE ACTUALLY TO INFLICT THE DEATH
SENTENCE" AND BY A WIDENING "DIVERGENCE OF BELIEF BETWEEN THE JURIES WE
SELECT AND SOCIETY GENERALLY." 

/20/  IT SHOULD BE UNDERSTOOD THAT MUCH MORE IS INVOLVED HERE THAN A
SIMPLE DETERMINATION OF SENTENCE.  FOR THE STATE OF ILLINOIS EMPOWERED
THE JURY IN THIS CASE TO ANSWER "YES" OR "NO" TO THE QUESTION WHETHER
THIS DEFENDANT WAS FIT TO LIVE.  TO BE SURE, SUCH A DETERMINATION IS
DIFFERENT IN KIND FROM A FINDING THAT THE DEFENDANT COMMITTED A
SPECIFIED CRIMINAL OFFENSE.  INSOFAR AS A DETERMINATION THAT A MAN
SHOULD BE PUT TO DEATH MIGHT REQUIRE "THAT THERE BE TAKEN INTO ACCOUNT
THE CIRCUMSTANCES OF THE OFFENSE TOGETHER WITH THE CHARACTER AND
PROPENSITIES OF THE OFFENDER," PENNSYLVANIA V. ASHE, 302 U.S. 51, 55,
FOR EXAMPLE, IT MAY BE APPROPRIATE THAT CERTAIN RULES OF EVIDENCE WITH
RESPECT TO PENALTY SHOULD DIFFER FROM THE CORRESPONDING EVIDENTIARY
RULES WITH RESPECT TO GUILT.  SEE, E.G., WILLIAMS V. NEW YORK, 337 U.S.
241.  BUT THIS DOES NOT MEAN THAT BASIC REQUIREMENTS OF PROCEDUREAL
FAIRNESS CAN BE IGNORED SIMPLY BECAUSE THE DETERMINATION INVOLVED IN
THIS CASE DIFFERS IN SOME RESPECTS FROM THE TRADITIONAL ASSESSMENT OF
WHETHER THE DEFENDANT ENGAGED IN A PROSCRIBED COURSE OF CONDUCT.  SEE,
E.G., SPECHT V. PATTERSON, 386 U.S. 605.  CF. MEMPA V. RHAY, 389 U.S.
128. 

ONE OF THOSE REQUIREMENTS, AT LEAST, IS THAT THE DECISION WHETHER A
MAN DESERVES TO LIVE OR DIE MUST BE MADE ON SCALES THAT ARE NOT
DELIBERATELY TIPPED TOWARD DEATH.  IT WAS IN PART UPON SUCH A PREMISE
THAT THE FOURTH CIRCUIT RECENTLY INVALIDATED A NORTH CAROLINA MURDER
CONVICTION, NOTING THAT A JUROR WHO FELT IT HIS "DUTY" TO SENTENCE
EVERY CONVICTED MURDERER TO DEATH WAS ALLOWED TO SERVE IN THAT CASE,
"WHILE THOSE WHO ADMITTED TO SCRUPLES AGAINST CAPITAL PUNISHMENT WERE
DISMISSED WITHOUT FURTHER INTERROGATION."  THIS "DOUBLE STANDARD," THE
COURT CONCLUDED, "INEVITABLY RESULTED IN (A) DENIAL OF DUE PROCESS." 
CRAWFORD V. BOUNDS, 395 F.2D 297, 303-304 (ALTERNATIVE HOLDING).  CF.
STROUD V. UNITED STATES, 251 U.S. 15, 20-21; ON PETITION FOR REHEARING,
ID., AT 380, 381 (DICTUM). 

/21/  JUST AS VENIREMEN CANNOT BE EXCLUDED FOR CAUSE ON THE GROUND
THAT THEY HOLD SUCH VIEWS, SO TOO THEY CANNOT BE EXCLUDED FOR CAUSE
SIMPLY BECAUSE THEY INDICATE THAT THERE ARE SOME KINDS OF CASES IN
WHICH THEY WOULD REFUSE TO RECOMMEND CAPITAL PUNISHMENT.  AND A
PROSPECTIVE JUROR CANNOT BE EXPECTED TO SAY IN ADVANCE OF TRIAL WHETHER
HE WOULD IN FACT VOTE FOR THE EXTREME PENALTY IN THE CASE BEFORE HIM. 
THE MOST THAT CAN BE DEMANDED OF A VENIREMAN IN THIS REGARD IS THAT HE
BE WILLING TO CONSIDER ALL OF THE PENALTIES PROVIDED BY STATE LAW, AND
THAT HE NOT BE IRREVOCABLY COMMITTED, BEFORE THE TRIAL HAS BEGUN, TO
VOTE AGAINST THE PENALTY OF DEATH REGARDLESS OF THE FACTS AND
CIRCUMSTANCES THAT MIGHT EMERGE IN THE COURSE OF THE PROCEEDINGS.  IF
THE VOIR DIRE TESTIMONY IN A GIVEN CASE INDICATES THAT VENIREMEN WERE
EXCLUDED ON ANY BROADER BASIS THAN THIS, THE DEATH SENTENCE CANNOT BE
CARRIED OUT EVEN IF APPLICABLE STATUTORY OR CASE LAW IN THE RELEVANT
JURISDICTION WOULD APPEAR TO SUPPORT ONLY A NARROWER GROUND OF
EXCLUSION.  SEE NN. 5 AND 9, SUPRA. 

WE REPEAT, HOWEVER, THAT NOTHING WE SAY TODAY BEARS UPON THE POWER
OF A STATE TO EXECUTE A DEFENDANT SENTENCED TO DEATH BY A JURY FROM
WHICH THE ONLY VENIREMEN WHO WERE IN FACT EXCLUDED FOR CAUSE WERE THOSE
WHO MADE UNMISTAKABLY CLEAR (1) THAT THEY WOULD AUTOMATICALLY VOTE
AGAINST THE IMPOSITION OF CAPITAL PUNISHMENT WITHOUT REGARD TO ANY
EVIDENCE THAT MIGHT BE DEVELOPED AT THE TRIAL OF THE CASE BEFORE THEM,
OR (2) THAT THEIR ATTITUDE TOWARD THE DEATH PENALTY WOULD PREVENT THEM
FROM MAKING AN IMPARTIAL DECISION AS TO THE DEFENDANT'S GUILT.  NOR
DOES THE DECISION IN THIS CASE AFFECT THE VALIDITY OF ANY SENTENCE
OTHER THAN ONE OF DEATH.  NOR, FINALLY, DOES TODAY'S HOLDING RENDER
INVALID THE CONVICTION, AS OPPOSED TO THE SENTENCE, IN THIS OR ANY
OTHER CASE. 

/22/  WE HAVE CONSIDERED THE SUGGESTION, ADVANCED IN AN AMICUS
CURIAE BRIEF FILED BY 27 STATES ON BEHALF OF ILLINOIS, THAT WE SHOULD
"GIVE PROSPECTIVE APPLICATION ONLY TO ANY NEW CONSTITUTIONAL RULING IN
THIS AREA," PARTICULARLY SINCE A DICTUM IN AN 1892 DECISION OF THIS
COURT APPROVED THE PRACTICE OF CHALLENGING FOR CAUSE THOSE JURORS WHO
EXPRESSED "CONSCIENTIOUS SCRUPLES IN REGARD TO THE INFLICTION OF THE
DEATH PENALTY FOR CRIME."  LOGAN V. UNITED STATES, 144 U.S. 263, 298. 
BUT WE THINK IT CLEAR, LOGAN NOTWITHSTANDING, THAT THE JURY-SELECTION
STANDARDS EMPLOYED HERE NECESSARILY UNDERMINED "THE VERY INTEGRITY OF
THE . . . PROCESS" THAT DECIDED THE PETITIONER'S FATE, SEE LINKLETTER
V. WALKER, 381 U.S. 618, 639, AND WE HAVE CONCLUDED THAT NEITHER THE
RELIANCE OF LAW ENFORCEMENT OFFICIALS, CF. TEHAN V. SHOTT, 382 U.S.
406, 417; JOHNSON V. NEW JERSEY, 384 US. 719, 731, NOR THE IMPACT OF A
RETROACTIVE HOLDING ON THE ADMINISTRATION OF JUSTICE, CF. STOVALL V.
DENNO, 388 U.S. 293, 300, WARRANTS A DECISION AGAINST THE FULLY
RETROACTIVE APPLICATION OF THE HOLDING WE ANNOUNCE TODAY. 

/23/  "IT IS PART OF THE ESTABLISHED TRADITION IN THE USE OF JURIES
AS INSTRUMENTS OF PBULIC JUSTICE THAT THE JURY BE A BODY TRULY
REPRESENTATIVE OF THE COMMUNITY."  SMITH V. TEXAS, 311 U.S. 128, 130. 
AND SEE BALLARD V. UNITED STATES, 329 U.S. 187, 191; THIEL V. SOUTHERN
PACIFIC CO., 328 U.S. 217, 220 ("THE AMERICAN TRADITION OF TRIAL BY
JURY, CONSIDERED IN CONNECTION WITH EITHER CRIMINAL OR CIVIL
PROCEEDINGS, NECESSARILY CONTEMPLATES AN IMPARTIAL JURY DRAWN FROM A
CROSS-SECTION OF THE COMMUNITY"); GLASSER V. UNITED STATES, 315 U.S.
60, 85-86. 

/24/  ALA. CODE, TIT. 14, SEC. 318 (1958); ARIZ. REV. STAT. ANN.
SEC. 13-453 (1956); COLO. REV. STAT. ANN. SEC. 40-2-3 (1963); HAW. 
REV.  LAWS SEC. 291-5 (1955); IDAHO CODE ANN. SEC. 18-4004 (1948); ILL.
REV. STAT., C. 38, SEC. 1-7(C)(1) (1967); IND. ANN. STAT. SEC. 9-1819
(1956); KAN. STAT. ANN. SEC. 21-403 (1964); KY. REV. STAT. SEC. 435.010
(1962), KY. RULE CRIM. PROC. 9.84 (1965); MO. REV. STAT. SEC. 559.030
(1959); NEB. REV. STAT. SEC. 28-401 (1964); NEV. REV. STAT. SEC.
200.030 (1963); OKLA. STAT. ANN., TIT. 21, SEC. 707 (1958); TENN. CODE
ANN. SEC. 39-2406 (1955); TEX. PEN.  CODE ANN., ART. 1257 (1961), TEX.
CODE CRIM. PROC., ART. 37.07 (1967 SUPP.); VA. CODE ANN. SECS. 18.1-22,
19.1-291 (1960).  IN MOST OF THESE STATES, A JURY DECISION OF DEATH IS
BINDING ON THE COURT.  IN A FEW STATES, HOWEVER, THE JUDGE MAY OVERRULE
THE JURY AND IMPOSE A LIFE SENTENCE.  ILL. REV. STAT., C 38, SEC. 1
7(C)(1)(1967); STATE V. ANDERSON, 384 S.W.2D 591 (MO. 1964); S. D. CODE
SEC. 13.2012 (1960 SUPP.). 

/25/  CAL. PEN.  CODE SEC. 190.1 (1967 SUPP.); N.Y. PEN.  LAW SECS.
125.30, 125.35 (1967); PA. STAT., TIT. 18, SEC. 4701 (1963).  AND SEE
S. D. CODE SEC. 13.2012 (1960 SUPP.) (TRIAL COURT MAY ASK JURY TO
RETIRE TO DELIBERATE ON PENALTY AFTER VERDICT OF GUILT RETURNED). 

/26/  ARK. STAT. ANN. SECS. 41-2227, 43-2153 (1964); CONN. GEN.
STAT. REV. SEC. 53-10 (1965 SUPP.); DEL. CODE ANN., TIT. 11, SECS 571,
3901 (1966 SUPP.); FLA. STAT. SECS. 782.04, 919.23 (1965); GA. CODE
ANN. SEC. 26-1005 (1953); LA. REV. STAT. SEC. 14:30 (1950); MD. ANN.
CODE, ART. 27, SEC. 413 (1967); MASS. GEN. LAWS ANN., C. 265, SEC. 2
(1959); MISS.  CODE ANN. SEC. 2217 (1957); MONT. REV. CODES ANN. SEC.
94-2505 (1949); N. J. REV. STAT. SEC. 2A:113-4 (1953); N. M. STAT. ANN.
SEC. 40-A-29-2 (1953); N. C. GEN. STAT. SEC. 14-17 (1953); OHIO REV.
CODE ANN. SEC. 2901.01 (1954); S. C. CODE ANN. SEC. 16-52 (1962); UTAH
CODE ANN. SEC. 76-30-4 (1953); WYO. STAT. ANN. SEC. 6-54 (1959).  IN
TWO OF THESE STATES, THE COURT POSSESSES DISCRETION TO IMPOSE A LIFE
SENTENCE DESPITE THE FAILURE OF THE JURY TO RECOMMEND MERCY.  GA. CODE
ANN. SEC. 26-1005 (1953) (IF CONVICTION BASED SOLELY ON CIRCUMSTANTIAL
EVIDENCE); MD. ANN. CODE, ART. 27, SEC. 413 (1967).  IN DELAWARE AND
UTAH THE COURT MAY OVERRULE A JURY RECOMMENDATION OF LIFE IMPRISONMENT
AND IMPOSE THE DEATH PENALTY.  DEL. CODE ANN., TIT. 11, SECS. 571, 3901
(1966 SUPP.); UTAH CODE ANN. SEC. 76-30-4 (1953), STATE V. ROMEO, 42
UTAH 46, 128 P. 530 (1912). 

/27/  ARKANSAS:  ARK. STAT. ANN. SEC. 43-2152 (1964); CONNECTICUT:
CONN. GEN. STAT. REV. SEC. 53-9 (1965 SUPP.); DELAWARE:  STATE V.
PRICE, 30 DEL. 544, 108 A. 385 (1919); FLORIDA:  BROWN V. STATE, 124
SO.2D 481 (1960); GEORGIA:  (NO DEGREES OF MURDER) GRAHAM V. STATE, 34
GA.APP.  598, 130 S.E. 354 (1925); LOUISIANA:  (NO DEGREES OF MURDER)
STATE V. GOODWIN, 189 LA. 443, 179 SO. 591 (1938); MARYLAND:  MD. ANN.
CODE, ART. 27, SEC. 412 (1967), AND SEE CHISLEY V. STATE, 202 MD. 87,
95 A.2D 577 (1953), GUNTHER V. STATE, 228 MD. 404, 179 A.2D 880 (1962);
MASSACHUSETTS:  COMMONWEALTH V. KAVALAUSKAS, 317 MASS. 453, 58 N.E.2D
819 (1945), COMMONWEALTH V. DI PSTASIO, 298 MASS. 562, 11 N.E.2D 799
(1937); MISSISSIPPI:  (NO DEGREES OF MURDER) ANDERSON V. STATE, 199
MISS.  885, 25 SO.2D 474 (1946); MONTANA:  STATE V. LEDUC, 89 MONT.
545, 300 P. 919 (1931), STATE V. MILLER, 91 MONT. 596, 9 P.2D 474
(1932); NEW JERSEY:  STATE V. SULLIVAN, 43 N.J. 209, 203 A.2D 177
(1964), STATE V. WYNN, 21 N.J. 264, 121 A.2D 534 (1956); NEW MEXICO:
STATE V. SMITH, 26 N.M. 482, 194 P. 869 (1921); NORTH CAROLINA:  STATE
V. LUCAS, 124 N.C. 825, 32 S.E. 962 (1899); OHIO:  STATE V. MUSKUS, 158
OHIOST.  276, 109 N.E.2D 15 (1952); SOUTH CAROLINA:  (NO DEGREES OF
MURDER) STATE V. BYRD, 72 S.C. 104, 51 S.ED. 542 (1905); UTAH:  STATE
V. MEWHINNEY, 43 UTAH 135, 134 P. 632 (1913); WYOMING:  BRANTLEY V.
STATE, 9 WYO. 102, 61 P. 139 (1900). 

/28/  ALA. CODE, TIT. 14, SEC. 319 (1958) (PERSON SERVING LIFE TERM
AT TIME OF COMMISSION OF OFFENSE); ARIZ. REV. STAT. ANN. SEC. 13-701
(1956) (TREASON); MASS. GEN. LAWS ANN., C. 265, SEC. 2 (1959) (RAPE
MURDERS); MISS.  CODE ANN. SEC. 2397 (1957) (TREASON); OHIO REV. CODE
ANN. SECS. 2901.09, 2901.10 (1954) (MURDER OF PRESIDENT, VICE
PRESIDENT, GOVERNOR, OR LIEUTENANT GOVERNOR); R.I. GEN. LAWS ANN. SEC.
11-23-2 (1956) (PERSON SERVING LIFE TERM AT TIME OF COMMISSION OF
OFFENSE). 

/29/  ALASKA STAT. SEC. 11.15.010 (1962); IOWA CODE ANN. SEC. 690.2
(1967 SUPP.); ME. REV. STAT. ANN., TIT. 17, SEC. 2651 (1964); MICH
STAT. ANN. SEC. 28.548, COMP. LAWS 1948, SEC. 750.316 (1954); MINN.
STAT. SEC. 609.185 (1965); ORE.  REV.  STAT. SEC. 163.010 (1967); W.
VA. CODE ANN. SEC. 61-2-2 (1966); WIS. STAT. SEC. 940.01 (1965).  IN
NORTH DAKOTA THE DEATH PENALTY HAS BEEN ABOLISHED EXCEPT IN THE CASE OF
MURDER COMMITTED WHILE UNDER A LIFE SENTENCE FOR MURDER, IN WHICH CASE
THE DEATH PENALTY MAY BE IMPOSED AT THE JURY'S DISCRETION.  N.D. CENT.
CODE SECS. 12-27-13, 12-27-22 (1960).  VERMONT HAS ALSO ABOLISHED THE
DEATH PENALTY EXCEPT IN THE CASES OF AN UNRELATED SECOND OFFENSE OF
MURDER OR THE KILLING OF A PEACE OFFICER OR PRISON OFFICIAL, IN WHICH
CASES THE DEATH PENALTY MAY BE IMPOSED AT THE JURY'S DISCRETION.  VT.
STAT. ANN., TIT. 13, SEC. 2303 (1967 SUPP.).  IN RHODE ISLAND THE DEATH
PENALTY HAS BEEN ABOLISHED EXCEPT THAT IT IS MANDATORY IN CASES OF
MURDER COMMITTED WHILE UNDER A LIFE SENTENCE FOR MURDER.  R.I. GEN.
LAWS ANN. SEC. 11-23-2 (1956).  IN GEORGIA THE DEATH PENALTY MAY NOT BE
IMPOSED IF THE PERSON CONVICTED WAS UNDER 17 YEARS OF AGE AT THE TIME
OF THE OFFENSE.  GA. CODE ANN. SEC. 16-1005 (1967 SUPP.).  IN
CALIFORNIA IT MAY NOT BE IMPOSED IF THE PERSON WAS UNDER 18 YEARS OF
AGE.  CAL. PEN.  CODE SEC. 190.1 (1967 SUPP.).  IN NEW YORK CAPITAL
PUNISHMENT HAS BEEN ABOLISHED EXCEPT THAT IT MAY BE IMPOSED AT THE
JURY'S DISCRETION IN CASES OF THE MURDER OF A PEACE OFFICER WHILE IN
THE COURSE OF PERFORMING HIS OFFICIAL DUTIES OR OF MURDER COMMITTED
WHILE UNDER A LIFE SENTENCE FOR MURDER.  N.Y. PEN.  LAW SEC. 125.30
(1967).     /30/  NEW HAMPSHIRE AND WASHINGTON PROVIDE FOR LIFE
IMPRISONMENT UNLESS THE JURY RECOMMENDS DEATH.  N. H. REV. STAT. ANN.
SEC. 585:4 (1955); WASH. REV. CODE SEC. 9.48.030 (1956).  MARYLAND
PERMITS THE TRIAL COURT ALONE TO DECIDE THE PENALTY IN ITS DISCRETION
WITHOUT SUBMITTING THE MATTER TO THE JURY IN CASES OF RAPE AND
AGGRAVATED KIDNAPING, MD. ANN. CODE, ART. 27, SECS. 461, 338 (1967). 

/31/  THE RULING ON THE "IMPARTIAL JURY" IN LOGAN V. UNITED STATES,
SEEMS ERROENOUS ON THE FACTS AND THE APPLICABLE LAW OF THAT CASE.  THE
GOVERNING STATUTE (A TEXAS STATUTE), 144 U.S.,AT 264, N. 1, LEFT TO THE
JURY "THE DEGREE OF MURDER, AS WELL AS THE PUNISHMENT." 

/32/  "(THE GULF BETWEEN BE COMMUNITY AND THE DEATH-QUALIFIED JURY
GROWS AS THE POPULACE BECOMES THE MORE INFECTED WITH MODERN NOTIONS OF
CRIMINALITY AND THE PURPOSE OF PUNISHMENT.  ACCORDINGLY, THE COMMUNITY
SUPPORT FOR THE DEATH VERDICT BECOMES PROGRESSIVELY NARROWER, WITH ALL
THAT THIS CONNOTES FOR THE ADMINISTRATION OF JUSTICE.  MOREOVER, AS THE
WILLINGNESS TO IMPOSE THE DEATH PENALTY-- THAT IS, TO BE SWORN AS A
JUROR IN A CAPITAL CASE-- WANES IN A PARTICULAR COMMUNITY, THE
PREJUDICIAL EFFECT OF THE DEATH-QUALIFIED JURY UPON THE ISSUE OF GUILT
OR INNOCENCE WAXES; TO MAN THE CAPITAL JURY, THE RESORT MUST
INCREASINGLY BE TO THE EXTREMISTS OF THE COMMUNITY-- THOSE LEAST IN
TOUCH WITH MODERN IDEAS OF CRIMINAL MOTIVATION, WITH THE CONSTANT
REFINEMENT OF THE FINEST PART OF OUR CULTURAL HERITAGE, THE DEDICATION
OF HUMAN CHARITY AND UNDERSTANDING.  THE DUE-PROCESS IMPLICATIONS OF
THIS FLUX SEEM OBVIOUS.  YESTERDAY'S PRACTICE BECOMES LESS AND LESS
RELEVANT TO TODAY'S PROBLEM."  OBERER, DOES DISQUALIFICATION OF JURORS
FOR SCRUPLES AGAINST CAPITAL PUNISHMENT CONSTITUTE DENIAL OF FAIR TRIAL
ON ISSUE OF GUILT?, 39 TEX.L.REV.  545, 556-557 (1961). 

/33/  IN THE WORDS OF THE ILLINOIS SUPREME COURT, THE DEATH PENALTY
IS "AN OPTIONAL FORM OF PUNISHMENT WHICH (THE JURY IS) FREE TO SELECT
OR REJECT AS IT (SEES) FIT."  PEOPLE V. BERNETTE, 30 ILL.2D 359, 370,
197 N.E.2D 436, 443 (1964).  SEE ALSO PEOPLE V. DUKES, 12 ILL.2D 334,
146 N.ED.2D 14 (1957); PEOPLE V. WEISBERG, 396 ILL. 412, 71 N.E.2D 671
(1947); PEOPLE V. MARTELLARO, 281 ILL. 300, 117 N.E. 1052 (1917). 

/34/  AS THE COURT POINTS OUT, A SUBSTANTIAL NUMBER OF THE VENIREMEN
(47 OUT OF 95), WHO WE MAY ASSUME REPRESENTED A FAIR CROSS-SECTION OF
THE COMMUNITY, WERE EXCLUDED BECAUSE OF THEIR OPPOSITION TO THE DEATH
PENALTY. 

/35/  IN RUDOLPH V. ALABAMA, 375 U.S. 889, I JOINED THE OPINION OF
MR. JUSTICE GOLDBERG, DISSENTING FROM THE COURT'S DENIAL OF CERTIORARI,
WHO EXPRESSED THE VIEW THAT THIS COURT SHOULD CONSIDER THE QUESTION
WHETHER THE EIGHTH AMENDMENT PROHIBITS "THE IMPOSITION OF THE DEATH
PENALTY ON A CONVICTED RAPIST WHO HAS NEITHER TAKEN NOR ENDANGERED
HUMAN LIFE."  IBID.  IN CONTRAST, THE INSTANT CASE CONCERNS A CONVICTED
MURDERER WHO HAS BEEN SENTENCED TO DEATH FOR HIS CRIME.  THE
REQUIREMENT IMPOSED BY THE SIXTH AND THE FOURTEENTH AMENDMENTS THAT A
JURY BE REPRESENTATIVE OF A CROSS-SECTION OF THE COMMUNITY IS, OF
COURSE, SEPARATE AND DISTINCT FROM THE QUESTION WHETHER THE DEATH
PENALTY OFFENDS THE EIGHTH AMENDMENT. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE HARLAND AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

THE COURT CLOSES ITS REVERSAL OF THIS MURDER CASE WITH THE FOLLOWING
GRAPHIC PARAGRAPH. 

      "WHATEVER ELSE MIGHT BE SAID OF CAPITAL PUNISHMENT, IT IS AT

  LEAST CLEAR THAT ITS IMPOSITION BY A HANGING JURY CANNOT BE

  SQUARED WITH THE CONSTITUTION.  THE STATE OF ILLINOIS HAS STACKED

  THE DECK AGAINST THE PETITIONER.  TO EXECUTE THIS DEATH SENTENCE

  WOULD DEPRIVE HIM OF HIS LIFE WITHOUT DUE PROCESS OF LAW." 

I THINK THIS CHARGE AGAINST THE ILLINOIS COURTS IS COMPLETELY WITHOUT
SUPPORT IN THE RECORD.  THE OPINION AFFIRMING THIS CONVICTION FOR A
UNANIMOUS ILLINOIS SUPREME COURT WAS WRITTEN BY JUSTICE WALTER
SCHAEFER, A JUDGE NATIONALLY RECOGNIZED AS A PROTECTOR OF THE
CONSTITUTIONAL RIGHTS OF DEFENDANTS CHARGED WITH CRIME.  IT SEEMS
PARTICULARLY UNFORTUNATE TO ME THAT THIS COURT FEELS CALLED UPON TO
CHARGE THAT JUSTICE SCHAEFER AND HIS ASSOCIATES WOULD LET A MAN GO TO
HIS DEATH AFTER THE TRIAL COURT HAD CONTRIVED A "HANGING JURY" AND, IN
THIS COURT'S LANGUAGE, "STACKED THE DECK" TO BRING ABOUT THE DEATH
SENTENCE FOR PETITIONER.  WITH ALL DUE DEFERENCE IT SEEMS TO ME THAT
ONE MIGHT MUCH MORE APPROPRIATELY CHARGE THAT THIS COURT HAS TODAY
WRITTEN THE LAW IN SUCH A WAY THAT THE STATES ARE BEING FORCED TO TRY
THEIR MURDER CASES WITH BIASED JURIES.  IF THIS COURT IS TO HOLD
CAPITAL PUNISHMENT UNCONSTITUTIONAL, I THINK IT SHOULD DO SO
FORTHRIGHTLY, NOT BY MAKING IT IMPOSSIBLE FOR STATES TO GET JURIES THAT
WILL ENFORCE THE DEATH PENALTY. 

NOW TO THE CASE. 

ON APRIL 29, 1959, MORE THAN NINE YEARS AGO, PETITIONER SHOT AND
KILLED A POLICEMAN IN ORDER TO ESCAPE ARREST.  PETITIONER HAD BEEN
STRUGGLING ON THE STREET WITH A WOMAN WHOM HE HAD MET IN A TAVERN WHEN
A POLICE PATROL CAR ASSIGNED TO THE VICINITY STOPPED AT A NEARBY
TRAFFIC LIGHT.  THE WOMAN WAS ABLE TO FREE HERSELF FROM PETITIONER'S
GRASP AND RUSHED TO THE PATROL CAR WHERE SHE TOLD THE TWO POLICEMEN IN
IT THAT PETITIONER WAS CARRYING A GUN.  PETITIONER OVERHEARD THIS
CONVERSATION AND FLED TO A NEARBY PARKING LOT AND HID IN ONE OF THE
MANY PARKED TRAILERS AND TRACTORS.  IT WAS WHILE ONE OF THE POLICEMENT
WAS SEARCHING THIS TRAILER THAT PETITIONER SHOT HIM.  THERE IS NO DOUBT
THAT PETITIONER KILLED THE POLICEMAN SINCE THE DYING OFFICER HIMSELF
IDENTIFIED PETITIONER AT THE HOSPITAL, AND PETITIONER LATER LECTURED
THE POLICE ON USING SUCH YOUNG AND INEXPERIENCED OFFICERS.  AND AS I
READ THE MAJORITY'S OPINION, EVEN THOSE WHO AGREE TO IT ARE UNWILLING
TO CAST ANY DOUBT ON PETITIONER'S CONVICTION.  SEE N. 21, MAJORITY
OPINION. 

AT HIS TRIAL FOR MURDER PETITIONER WAS REPRESENTED BY THREE
APPOINTED COUNSEL, THE CHIEF OF WHOM WAS THE THEN CHAIRMAN OF THE
CHICAGO BAR ASSOCIATION COMMITTEE FOR THE DEFENSE OF THE INDIGENT.  IT
IS IMPORTANT TO NOTE THAT WHEN THOSE PERSONS WHO ACKNOWLEDGED HAVING
"CONSCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST THE INFLICTION OF THE
DEATH PENALTY" WERE EXCLUDED FROM THE JURY, DEFENSE COUNSEL MADE NO
ATTEMPT TO SHOW THAT THEY WERE NONETHELESS COMPETENT JURORS.  IN FACT,
WHEN THE JURORS FINALLY WERE ACCEPTED BY DEFENSE COUNSEL, THE DEFENSE
STILL HAD THREE PEREMPTORY CHALLENGES LEFT TO EXERCISE.  IN THE PAST
THIS HAS FREQUENTLY BEEN TAKEN AS AN INDICATION THAT THE JURORS WHO
WERE IMPANELED WERE IMPARTIAL.  SEE CASES COLLECTED IN THE UNITED
STATES V. PUFF, 211 F.2D 171, 185 (C.A.2D CIR. 1954).  AND IT CERTAINLY
AMOUNTS TO A CLEAR SHOWING THAT IN THIS CASE PETITIONER'S ABLE AND
DISTINGUISHED COUNSEL DID NOT BELIEVE PETITIONER WAS BEING TRIED BY A
BIASED, MUCH LESS A "HANGING," JURY. 

AFTER PETITIONER'S CONVICTION, ANOTHER VERY DISTINGUISHED ATTORNEY
WAS APPOINTED TO PROSECUTE HIS APPEAL, AND AN EXTENSIVE BRIEF ALLEGING
SOME 15 SEPARATE TRIAL ERRORS WAS FILED IN THE SUPREME COURT OF
ILLINOIS.  AGAIN, HOWEVER, THERE WAS NO INDICATION THAT ANYONE THOUGHT
PETITIONER HAD BEEN CONVICTED BY A BIASED JURY.  ON MARCH 25, 1963, THE
SUPREME COURT OF ILLINOIS AFFIRMED PETITIONER'S CONVICTION IN A LENGTHY
OPINION.  PEOPLE V. WITHERSPOON, 27 ILL.2D 483, 190 N.E.2D 281. 
PETITIONER ATTACKED HIS CONVICTION BY PURSUING BOTH HABEAS CORPUS
RELIEF AND THE STATUTORY POST-CONVICTION REMEDY.  AGAIN NO MENTION WAS
MADE OF ANY ALLEGED BIAS IN THE JURY.  WHEN THE SUPREME COURT OF
ILLINOIS ON JANUARY 17, 1964, REFUSED THE REQUESTED RELIEF, PETITIONER
SOUGHT FEDERAL HABEAS CORPUS.  AND WAS ASSISTED BY A THIRD COURT
APPOINTED ATTORNEY.  AS IN HIS PREVIOUS ATTACKS NO CLAIM WAS MADE THAT
PETITIONER WAS DENIED AN IMPARTIAL JURY.  PETITIONER WAS UNSUCCESSFUL
IN THIS FEDERAL HABEAS CORPUS BID, WITHERSPOON V. OGILVIE, 337 F.2D 427
(C.A. 7TH CIR. 1964), AND WE DENIED CERTIORARI.  WITHERSPOON V.
OGILVIE, 379 U.S. 950.  THEN IN FEBRUARY 1965, PETITIONER FILED A
PETITION IN THE STATE COURTS REQUESTING WHATEVER FORM OF REMEDY IS
"PROVIDED FOR BY ILLINOIS LAW."  AMONG OTHER CLAIMS, NOW APPEARED THE
CONTENTION THAT PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN
THE TRIAL COURT EXCUSED FOR CAUSE PROSPECTIVE JURORS HAVING SCRUPLES
AGAINST CAPITAL PUNISHMENT.  THE STATE TRIAL JUDGE DISMISSED THE
PETITION ON THE GROUND THAT IT FAILED TO SET FORTH FACTS SUFFICIENT TO
ENTITLE THE PETITIONER TO RELIEF.  PETITIONER THEN APPEALED TO THE
ILLINOIS SUPREME COURT WHERE HE WAS APPEARING FOR THE THIRD TIME IN
THIS CASE AND WHERE, MORE THAN SIX YEARS AFTER HIS TRIAL, HE ARGUED
THAT THE DISQUALIFICATION FOR CAUSE OF JURORS HAVING CONSCIENTIOUS OR
RELIGIOUS SCRUPLES AGAINST CAPITAL PUNISHMENT WAS UNCONSTITUTIONAL. 
/1/  THAT COURT DISALLOWED PETITIONER'S CLAIM CONCLUDING THAT "WE
ADHERE TO THE SYSTEM IN WHICH EACH SIDE IS ALLOWED TO EXAMINE JURORS
AND ELIMINATE THOSE WHO CAN NOT BE IMPARTIAL."  36 ILL.2D,AT 476, 224
N.E.2D,AT 262.  THIS COURT SUBSEQUENTLY GRANTED CERTIORARI TO REVIEW
THE DECISION OF THE ILLINOIS SUPREME COURT. 

AT THE TIME OF PETITIONER'S TRIAL, SEC. 743 OF ILL. REV. STAT., C.
38, PROVIDED: 

"IN TRIALS FOR MURDER IT SHALL BE A CAUSE FOR CHALLENGE OF ANY JUROR
WHO SHALL, ON BEING EXAMINED, STATE THAT HE HAS CONSCIENTIOUS SCRUPLES
AGAINST CAPITAL PUNISHMENT, OR THAT HE IS OPPOSED TO THE SAME."  THE
OBVIOUS PURPOSE OF THIS SECTION IS TO INSURE, AS WELL AS LAWS CAN
INSURE SUCH A THING, THAT THERE BE AN IMPARTIAL JURY IN CASES IN
ILLINOIS WHERE THE DEATH SENTENCE MAY BE IMPOSED.  AND THIS STATUTE
RECOGNIZES THAT THE PEOPLE AS A WHOLE, OR AS THEY ARE USUALLY CALLED,
"SOCIETY" OR "THE STATE," HAVE AS MUCH RIGHT TO AN IMPARTIAL JURY AS DO
CRIMINAL DEFENDANTS.  THIS COURT ITSELF HAS MADE THAT QUITE CLEAR: 

"IT IS TO BE REMEMBERED THAT SUCH IMPARTIALITY REQUIRES NOT ONLY
FREEDOM FROM ANY BIAS AGAINST THE ACCUSED, BUT ALSO FROM ANY PREJUDICE
AGAINST HIS PROSECUTION.  BETWEEN HIM AND THE STATE THE SCALES ARE TO
BE EVENLY HELD."  HAYES V. MISSOURI, 120 U.S. 68, 70.  SEE ALSO SWAIN
V. ALABAMA, 380 U.S. 202, 219-220. 

AS I SEE THE ISSUE IN THIS CASE, IT IS A QUESTION OF PLAIN BIAS.  A
PERSON WHO HAS CONSCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST CAPITAL
PUNISHMENT WILL SELDOM IF EVER VOTE TO IMPOSE THE DEATH PENALTY.  THIS
IS JUST HUMAN NATURE, AND NO AMOUNT OF SEMANTIC CAMOUFLAGE CAN COVER IT
UP.  IN THE SAME MANNER, I WOULD NOT DREAM OF FOISTING ON A CRIMINAL
DEFENDANT A JUROR WHO ADMITTED THAT HE HAD CONSCIENTIOUS OR RELIGIOUS
SCRUPLES AGAINST NOT INFLICTING THE DEATH SENTENCE ON ANY PERSON
CONVICTED OF MURDER (A JUROR WHO CLAIMS, FOR EXAMPLE, THAT HE ADHERES
LITERALLY TO THE BIBLICAL ADMONITION OF "AN EYE FOR AN EYE").  YET THE
LOGICAL RESULT OF THE MAJORITY'S HOLDING IS THAT SUCH PERSONS MUST BE
ALLOWED SO THAT THE "CONSCIENCE OF THE COMMUNITY" WILL BE FULLY
REPRESENTED WHEN IT DECIDES "THE ULTIMATE QUESTION OF LIFE OR DEATH." 
WHILE I HAVE ALWAYS ADVOCATED THAT THE JURY BE AS FULLY REPRESENTATIVE
OF THE COMMUNITY AS POSSIBLE, I WOULD NEVER CARRY THIS SO FAR AS TO
REQUIRE THAT THOSE BIASED AGAINST ONE OF THE CRITICAL ISSUES IN A TRIAL
SHOULD BE REPRESENTED ON A JURY.  I STILL SUBSCRIBE TO THE WORDS OF
THIS COURT WRITTEN OVER 75 YEARS AGO IN LOGAN V. UNITED STATES, 144
U.S. 263, 298: 

"AS THE DEFENDANTS WERE INDICTED AND TO BE TRIED FOR A CRIME
PUNISHABLE WITH DEATH, THOSE JURORS WHO STATED ON VOIR DIRE THAT THEY
HAD 'CONSCIENTIOUS SCRUPLES IN REGARD TO THE INFLICTION OF THE DEATH
PENALTY FOR CRIME' WERE RIGHTLY PERMITTED TO BE CHALLENGED BY THE
GOVERNMENT FOR CAUSE.  A JUROR WHO HAS CONSCIENTIOUS SCRUPLES ON ANY
SUBJECT, WHICH PREVENT HIM FROM STANDING INDIFFERENT BETWEEN THE
GOVERNMENT AND THE ACCUSED, AND FROM TRYING THE CASE ACCORDING TO THE
LAW AND THE EVIDENCE, IS NOT AN IMPARTIAL JUROR.  THIS COURT HAS
ACCORDINGLY HELD THAT A PERSON WHO HAS A CONSCIENTIOUS BELIEF THAT
POLYGAMY IS RIGHTFUL MAY BE CHALLENGED FOR CAUSE ON A TRIAL FOR
POLYGAMY.  REYNOLDS V. UNITED STATES, 98 U.S. 145, 147, 157; MILES V.
UNITED STATES, 103 U.S. 304, 310.  AND THE PRINCIPLE HAS BEEN APPLIED
TO THE VERY QUESTION NOW BEFORE US BY MR. JUSTICE STORY IN UNITED
STATES V. CORNELL, 2 MASON, 19, 105, AND BY MR. JUSTICE BALDWIN IN
UNITED STATES V. WILSON, BALDWIN, 78, 83, AS WELL AS BY THE COURTS OF
EVERY STATE IN WHICH THE QUESTION HAS ARISEN, AND BY EXPRESS STATUTE IN
MANY STATES.  WHART.  CRIM. PL. (9TH ED.)  SEC.  664." 

THE MAJORITY OPINION ATTEMPTS TO EQUATE THOSE WHO HAVE CONSCIENTIOUS
OR RELIGIOUS SCRUPLES AGAINST THE DEATH PENALTY WITH THOSE WHO DO NOT
IN SUCH A WAY AS TO BALANCE THE ALLEGEDLY CONFLICTING VIEWPOINTS IN
ORDER THAT A TRULY REPRESENTATIVE JURY CAN BE ESTABLISHED TO EXERCISE
THE COMMUNITY'S DISCRETION IN DECIDING ON PUNISHMENT.  BUT FOR THIS
PURPOSE I DO NOT BELIEVE THAT THOSE WHO HAVE CONSCIENTIOUS OR RELIGIOUS
SCRUPLES AGAINST THE DEATH PENALTY AND THOSE WHO HAVE NO FEELINGS
EITHER WAY ARE IN ANY SENSE COMPARABLE.  SCRUPLES AGAINST THE DEATH
PENALTY ARE COMMONLY THE RESULT OF A DEEP RELIGIOUS CONVICTION OR A
PROFOUND PHILOSOPHICAL COMMITMENT DEVELOPED AFTER MUCH SOUL-SEARCHING. 
THE HOLDERS OF SUCH SCRUPLES MUST NECESSARILY RECOIL FROM THE PROSPECT
OF MAKING POSSIBLE WHAT THEY REGARD AS IMMORAL.  ON THE OTHER HAND, I
CANNOT ACCEPT THE PROPOSITION THAT PERSONS WHO DO NOT HAVE
CONSCIENTIOUS SCRUPLES AGAINST THE DEATH PENALTY ARE "PROSECUTION
PRONE."  /2/  WITH REGARD TO THIS GROUP, I WOULD AGREE WITH THE
FOLLOWING STATEMENT OF THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT: 

"NO PROOF IS AVAILABLE, SO FAR AS WE KNOW, AND WE CAN IMAGINE NONE,
TO INDICATE THAT, GENERALLY SPEAKING, PERSONS NOT OPPOSED TO CAPITAL
PUNISHMENT ARE SO BENT IN THEIR HOSTILITY TO CRIMINALS AS TO BE
INCAPABLE OF RENDERING IMPARTIAL VERDICTS ON THE LAW AND THE EVIDENCE
IN A CAPITAL CASE.  BEING NOT OPPOSED TO CAPITAL PUNISHMENT IS NOT
SYNONYMOUS WITH FAVORING IT. INDIVIDUALS MAY INDEED BE SO PREJUDICED IN
RESPECT TO SERIOUS CRIMES THAT THEY

  CANNOT BE IMPARTIAL ARBITERS, BUT THAT EXTREME IS NOT INDICATED
BY MERE LACK OF OPPOSTION TO

  CAPITAL PUNISHMENT.  THE TWO ANTIPATHIES CAN READILY COEXIST;
CONTRARIWISE EITHER CAN EXIST

  WITHOUT THE OTHER; AND, INDEED, NEITHER MAY EXIST IN A PERSON. 
IT SEEMS CLEAR ENOUGH TO US

  THAT A PERSON OR A GROUP OF PERSONS MAY NOT BE OPPOSED TO CAPITAL
PUNISHMENT AND AT THE SAME

  TIME MAY HAVE NO PARTICULAR BIAS AGAINST ANY ONE CRIMINAL OR,
INDEED, AGAINST CRIMINALS AS A

  CLASS; PEOPLE, IT SEEMS TO US, MAY BE COMPLETELY WITHOUT A
CONTROLLING CONVICTION ONE WAY OR

THE OTHER ON EITHER SUBJECT . . . ."  TURBERVILLE V. UNITED STATES,
112 U.S.APP.D.C. 400,

  409-410, 303 F.2D 411, 420-421 (1962), CERT. DENIED, 370 U.S.
946.  IT SEEMS TO ME THAT THE COURT'S OPINION TODAY MUST BE READ AS
HOLDING JUST THE OPPOSITE FROM WHAT HAS BEEN STATED ABOVE.  FOR NO
MATTER HOW THE COURT MIGHT TRY TO HIDE IT, THE IMPLICATION IS
INEVITABLY IN ITS OPINION THAT PEOPLE WHO DO NOT HAVE CONSCIENTIOUS
SCRUPLES AGAINST THE DEATH PENALTY ARE SOMEHOW CALLOUS TO SUFFERING AND
ARE, AS SOME OF THE COMMENTATORS CITED BY THE COURT CALLED THEM,
"PROSECUTION PRONE."  THIS CONCLUSION REPRESENTS A PSYCHOLOGICAL FORAY
INTO THE HUMAN MIND THAT I HAVE CONSIDERABLE DOUBT ABOUT MY ABILITY TO
MAKE, AND I MUST CONFESS THAT THE TWO OR THREE SO-CALLED "STUDIES"
CITED BY THE COURT ON THIS SUBJECT ARE NOT PERSUASIVE TO ME. 

FINALLY, I WANT TO POINT OUT THAT THE REAL HOLDING IN THIS CASE IS,
AT LEAST TO ME, VERY AMBIGUOUS.  IF WE ARE TO TAKE THE OPINION
LITERALLY, THEN I SUBMIT THE COURT TODAY HAS DECIDED NOTHING OF
SUBSTANCE, BUT HAS MERELY INDULGED ITSELF IN A SEMANTIC EXERCISE.  FOR
AS I READ THE OPINION, THE NEW REQUIREMENT PLACED UPON THE STATES IS
THAT THEY CEASE ASKING PROSPECTIVE JURORS WHETHER THEY HAVE
"CONSCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST THE INFLICTION OF THE
DEATH PENALTY," BUT INSTEAD ASK WHETHER "THEY WOULD AUTOMATICALLY VOTE
AGAINST THE IMPOSITION OF CAPITAL PUNISHMENT WITHOUT REGARD TO ANY
EVIDENCE THAT MIGHT BE DEVELOPED AT THE TRIAL OF THE CASE BEFORE
THEM."  (SEE MAJORITY OPINION, N. 21.)  I BELIEVE THAT THIS FINE LINE
THE COURT ATTEMPTS TO DRAW IS BASED ON A SEMANTIC ILLUSION AND THAT THE
PRACTICAL EFFECT OF THE COURT'S NEW FORMULATION OF THE QUESTION TO BE
ASKED STATE JURIES WILL NOT PRODUCE A SIGNIFICANTLY DIFFERENT KIND OF
JURY FROM THE ONE CHOSEN IN THIS CASE.  AND I MIGHT ADD THAT THE STATES
WILL HAVE BEEN PUT TO A GREAT DEAL OF TROUBLE FOR NOTHING.  YET, AS I
STATED ABOVE, IT IS NOT CLEAR THAT THIS IS ALL THE COURT IS HOLDING. 
FOR THE MAJORITY OPINION GOES OUT OF ITS WAY TO STATE THAT IN SOME
FUTURE CASE A DEFENDANT MIGHT WELL ESTABLISH THAT A JURY SELECTED IN
THE WAY THE ILLINOIS STATUTE HERE PROVIDES IS "LESS THAN NEUTRAL WITH
RESPECT TO GUILT."  (MAJORITY OPINION, N. 18.)  THIS SEEMS TO ME TO BE
BUT A THINLY VEILED WARNING TO THE STATES THAT THEY HAD BETTER CHANGE
THEIR JURY SELECTION PROCEDURES OR FACE A DECISION BY THIS COURT THAT
THEIR MURDER CONVICTIONS HAVE BEEN OBTAINED UNCONSTITUTIONALLY.     I
BELIEVE THAT THE COURT'S DECISION TODAY GOES A LONG WAY TO DESTROYING
THE CONCEPT OF AN IMPARTIAL JURY AS WE HAVE KNOWN IT.  THIS CONCEPT HAS
BEEN DESCRIBED MOST ELOQUENTLY BY JUSTICE STORY:     "TO INSIST ON A
JUROR'S SITTING IN A CAUSE WHEN HE ACKNOWLEDGES HIMSELF TO BE UNDER
INFLUENCES, NO MATTER WHETHER THEY ARISE FROM INTEREST, FROM
PREJUDICES, OR FROM RELIGIOUS OPINIONS, WHICH WILL PREVENT HIM FROM
GIVING A TRUE VERDICT ACCORDING TO LAW AND EVIDENCE, WOULD BE TO
SUBVERT THE OBJECTS OF A TRIAL BY JURY, AND TO BRING INTO DISGRACE AND
CONTEMPT, THE PROCEEDINGS OF COURTS OF JUSTICE.  WE DO NOT SIT HERE TO
PRODUCE THE VERDICTS OF PARTIAL AND PREJUDICED MEN; BUT OF MEN, HONEST
AND INDIFFERENT IN CAUSES.  THIS IS THE ADMINISTRATION OF JUSTICE
(WHICH IS REQUIRED)."  UNITED STATES V. CORNELL, 25 FED.CAS.  650, 655
656 (NO. 14,868) (1820).  IT IS JUST AS NECESSARY TODAY THAT JURIES BE
IMPARTIAL AS IT WAS IN 1820 WHEN JUSTICE STORY MADE THIS STATEMENT.  I
SHALL NOT CONTRIBUTE IN ANY WAY TO THE DESTRUCTION OF OUR ANCIENT
JUDICIAL AND CONSTITUTIONAL CONCEPT OF TRIAL BY AN IMPARTIAL JURY BY
FORCING THE STATES THROUGH "CONSTITUTIONAL DOCTRINE" LAID DOWN BY THIS
COURT TO ACCEPT JURORS WHO ARE BOUND TO BE BIASED.  FOR THIS REASON I
DISSENT. 

/1/  CERTAINLY LONG DELAYS IN RAISING OBJECTIONS TO TRIAL PROCEEDINGS
SHOULD NOT BE CONDONED EXCEPT TO PREVENT INTOLERABLE MISCARRIAGES OF
JUSTICE.  CF. FAY V. NOIA, 372 U.S. 391. 

/2/  SEE BUMPER V. NORTH CAROLINA, POST, P. 554 (DISSENTING
OPINION). 

MR. JUSTICE WHITE, DISSENTING. 

THE COURT DOES NOT HOLD THAT IMPOSITION OF THE DEATH PENALTY OFFENDS
THE EIGHTH AMENDMENT.  NOR DOES IT HOLD THAT A STATE LEGISLATURE MAY
NOT SPECIFY ONLY DEATH AS THE PUNISHMENT FOR CERTAIN CRIMES, SO THAT
THE PENALTY IS IMPOSED AUTOMATICALLY UPON A FINDING OF GUILT, WITH NO
DISCRETION IN JUDGE OR JURY.  EITHER OF THESE HOLDINGS MIGHT FURNISH A
SATISFACTORY PREDICATE FOR REVERSING THIS JUDGMENT.  WITHOUT THEM, THE
ANALYTIC BASIS OF THE RESULT REACHED BY THE COURT IS INFORM; THE
CONCLUSION IS REACHED BECAUSE THE COURT SAYS SO, NOT BECAUSE OF REASONS
SET FORTH IN THE OPINION. 

THE COURT MERELY ASSERTS THAT THIS LEGISLATIVE ATTEMPT TO IMPOSE THE
DEATH PENALTY ON SOME PERSONS CONVICTED OF MURDER, BUT NOT ON EVERYONE
SO CONVICTED, IS CONSTITUTIONALLY UNSATISFACTORY: 

     "IT IS, OF COURSE, SETTLED THAT A STATE MAY NOT ENTRUST THE

  DETERMINATION OF WHETHER A MAN IS INNOCENT OR GUILTY TO A

  TRIBUNAL 'ORGANIZED TO CONVICT.'  IT REQUIRES BUT A SHORT STEP

  FROM THAT PRINCIPLE TO HOLD, AS WE DO TODAY, THAT A STATE MAY NOT

  ENTRUST THE DETERMINATION OF WHETHER A MAN SHOULD LIVE OR DIE TO

  A TRIBUNAL ORGANIZED TO RETURN A VERDICT OF DEATH." 

ANTE, AT 521.  THE SOLE REASON CONNECTING THE TWO SENTENCES IS THE RAW
ASSERTION THAT THE SITUATIONS ARE CLOSELY RELATED.  YET THE
CONSTITUTION, WHICH BARS A LEGISLATIVE DETERMINATION THAT EVERYONE
INDICTED SHOULD BE CONVICTED, AND SO REQUIRES THE JUDGMENT OF A GUILT
DETERMINING BODY UNPREJUDICED AS TO THE RESULT, /1/  SPEAKS IN ENTIRELY
DIFFERENT TERMS TO THE DETERMINATION OF SENTENCE, EVEN WHEN THAT
SENTENCE IS DEATH.  THE CORUT DOES NOT DENY THAT THE LEGISLATURE CAN
IMPOSE A PARTICULAR PENALTY, INCLUDING DEATH, ON ALL PERSONS CONVICTED
OF CERTAIN CRIMES.  WHY, THEN, SHOULD IT BE DISABLED FROM DELEGATING
THE PENALTY DECISION TO A GROUP WHO WILL IMPOSE THE DEATH PENALTY MORE
OFTEN THAN WOULD A GROUP DIFFERENTLY CHOSEN? 

ALL ILLINOIS CITIZENS, INCLUDING THOSE WHO OPPOSE THE DEATH PENALTY,
ARE ASSURED BY THE CONSTITUTION A FAIR OPPORTUNITY TO INFLUENCE THE
LEGISLATURE'S DETERMINATIONS ABOUT CRIMINAL SENTENCES.  REYNOLDS V.
SIMS, 377 U.S. 533 (1964), AND SUCCEEDING CASES.  THOSE OPPOSING THE
DEATH PENALTY HAVE NOT PREVAILED IN THAT FORUM, HOWEVER, THE
REPRESENTATIVES OF THE PEOPLE OF ILLINOIS HAVE DETERMINED THAT THE
DEATH PENALTY DECISION SHOULD BE MADE IN INDIVIDUAL CASES BY A GROUP OF
THOSE CITIZENS WITHOUT CONSCIENTIOUS SCRUPLES ABOUT ONE OF THE
SENTENCING LATERNATIVES PROVIDED BY THE LEGISLATURE.  THIS METHOD OF
IMPLEMENTING THE MAJORITY'S WILL WAS PRESUMABLY RELATED TO A DESIRE TO
PRESERVE THE TRADITIONAL POLICY OF REQUIRING THAT JURY VERDICTS BE
UNANIMOUS.  THE LEGISLATURE UNDOUBTEDLY FELT THAT IF ALL CITIZENS COULD
SERVE ON THE JURY, AND IF ONE CITIZEN WITH ESPECIALLY PRONOUNCED
"SCRUPLES"  COULD PREVENT A DECISION TO IMPOSE DEATH, THE PENALTY WOULD
ALMOST NEVER BE IMPOSED.  /2/  WE NEED NOT DECIDE TODAY WHETHER ANY
POSSIBLE DELEGATION OF THE SENTENCING DECISION, FOR EXAMPLE A
DELEGATION TO THE SURVIVING RELATIVES OF THE VICTIM, WOULD BE
CONSTITUTIONALLY IMPERMISSIBLE BECAUSE IT WOULD OFFEND THE CONSCIENCE
OF CIVILIZED MEN, ROCHIN V. CALIFORNIA, 342 U.S. 165, 172 (1952).  THE
DELEGATION BY ILLINOIS, WHICH MERELY EXCLUDES THOSE WITH DOUBTS IN
POLICY ABOUT ONE OF THE PUNISHMENTS AMONG WHICH THELEGISLATURE SOUGHT
TO HAVE THEM CHOOOSE, SEEMS AN ENTIRELY REASONABLE AND SENSIBLE
LEGISLATIVE ACT. 

THE COURT MAY HAVE A STRONG DISLIKE FOR THIS PARTICULAR SENTENCE,
AND IT MAY DESIRE TO MEET MR. KOESTLER'S STANDARDS OF CHARITY.  THOSE
ARE LAUDABLE MOTIVES, BUT HARDLY A SUBSTITUTE FOR THE USUAL PROCESSES
OF REASONED ANALYSIS.  IF THE COURT CAN OFFER NO BETTER CONSTITUTIONAL
GROUNDS FOR TODAY'S DECISION THAN THOSE PROVIDED IN THE OPINION, IT
SHOULD RESTRAIN ITS DISLIKE FOR THE DEATH PENALTY AND LEAVE THE
DECISION ABOUT APPROPRIATE PENALTIES TO BRANCHES OF GOVERNMENT WHOSE
MEMBERS, SELECTED BY POPULAR VOTE, HAVE AN AUTHORITY NOT EXTENDED TO
THIS COURT. 

/1/  WHILE I AGREE GENERALLY WITH THE OPINION OF MR. JUSTICE BLACK,
AND SO HAVE JOINED IT, I WOULD NOT WHOLLY FORECLOSE THE POSSIBILITY OF
A SHOWING THAT CERTAIN RESTRICTIONS ON JURY MEMBERSHIP IMPOSED BECAUSE
OF JURY PARTICIPATION IN PENALTY DETERMINATION PRODUCE A JURY WHICH IS
NOT CONSTITUTIONALLY CONSTITUTED FOR THE PURPOSE OF DETERMINING GUILT. 

/2/  THE STATES SHOULD BE AWARE OF THE EASE WITH WHICH THEY CAN
ADJUST TO TODAY'S DECISION.  THEY CONTINUE TO BE PERMITTED TO IMPOSE
THE PENALTY OF DEATH ON ALL WHO COMMIT A PARTICULAR CRIME.  AND
REPLACING THE REQUIREMENT OF UNANIMOUS JURY VERDICTS WITH MAJORITY
DECISIONS ABOUT SENTENCE SHOULD ACHIEVE ROUGHLY THE SAME RESULT REACHED
BY THE ILLINOIS LEGISLATURE THROUGH THE PROCEDURE STRUCK DOWN TODAY. 

ALBERT E. JENNER, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WERE THOMAS P. SULLIVAN, JEROLD S. SOLOVY, AND JOHN C.
TUCKER. 

DONALD J. VEVERKA, ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE FOR
RESPONDENT STATE OF ILLINOIS.  WITH HIM ON THE BREIF WERE WILLIAM G.
CLARK, ATTORNEY GENERAL, AND JOHN J. O'TOOLE, ASSISTANT ATTORNEY
GENERAL.  JAMES B. ZAGEL ARGUED THE CAUSE FOR RESPONDENT WOODS, PRO HAC
VICE.  WITH HIM ON THE BRIEF WERE JOHN J. STAMOS, ELMER C. KISSANE, AND
JOEL FLAUM. 

ROBERT R. GRANUCCI, DEPUTY ATTORNEY GENERAL, ARGUED THE CAUSE FOR
THE STATE OF CALIFORNIA, AS AMICUS CURIAE.  WITH HIM ON THE BRIEF WERE
THOMAS C. LYNCH, ATTORNEY GENERAL, ALBERT W. HARRIS, JR., ASSISTANT
ATTORNEY GENERAL, AND GEORGE R. NOCK, DEPUTY ATTORNEY GENERAL, JOINED
BY THE ATTORNEYS GENERAL FOR THEIR RESPECTIVE STATES AS FOLLOWS:
MACDONALD GALLION OF ALABAMA, DARRELL F. SMITH OF ARIZONA, JOE PURCELL
OF ARKANSAS, DUKE W. DUNBAR OF COLORADO, DAVID P. BUCKSON OF DELAWARE,
EARL FAIRCLOTH OF FLORIDA, ARTHUR K. BOLTON OF GEORGIA, ALLAN G.
SHEPARD OF IDAHO, ROBERT C. LONDERHOLM OF KANSAS, JOHN B. BRECKINRIDGE
OF KENTUCKY, JACK P. F. GREMILLION OF LOUISIANA, NORMAN H. ANDERSON OF
MISSOURI, CLARENCE A. H. MEYER OF NEBRASKA, GEORGE S. PAPPAGIANIS OF
NEW HAMPSHIRE, BOSTON E. WITT OF NEW MEXICO, HELGI JOHANNESON OF NORTH
DAKOTA, WILLIAM B. SAXBE OF OHIO, G. T. BLANKENSHIP OF OKLAHOMA,
WILLIAM C. SENNETT OF PENNSYLVANIA, DANIEL R. MCLEOD OF SOUTH CAROLINA,
FRANK L. FARRAR OF SOUTH DAKOTA, GEORGE F. MCCANLESS OF TENNESSES,
CRAWFORD C. MARTION OF TEXAS, ROBERT Y. BUTTON OF VIRGINIA, JOHN J.
OC'CONNELL OF WASHINGTON, AND JAMES E. BARRETT OF WYOMING; AND BY
MARION O. GORDON, ASSISTANT ATTORNEY GENERAL OF GEORGIA, FRANK P.
LAWLEY, EPUTY ATTORNEY GENERAL OF PENNSYLVANIA, RENO S. HARP III,
ASSISTANT ATTORNEY GENERAL OF VIRGINIA, AND HOWARD L. MCFADDEN. 

BRIEFS OF AMICI CURIAE WERE FILED BY ELMER GERTZ FOR THE ILLINOIS
DIVISION, MERICAN CIVIL LIBERTIES UNION; BY JACK GREENBERG, JAMES M.
NABRIT III, MICHAEL MELTSNER, LEROY D. CLARK, NORMAN C. AMAKER, AND
CHARLES S. RALSTON FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,
INC., ET AL.; BY ALEX ELSON, WILLARD J. LASSERS, AND MARVIN BRAITERMAN
FOR THE AMERICAN FRIENDS SERVICE COMMITTEE ET AL.; BY F. LEE BAILEY,
PRO SE; BY JOEL W. WESTBROOK FOR TURNER, AND BY JOHN P. FRANK AND JOHN
J. FLYNN FOR MADDEN. 
..END :





BUMPER V. NORTH CAROLINA, 391 U.S. 543 


       BUMPER V. NORTH CAROLINA. 

        CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

        NO. 1016.  ARGUED APRIL 24-25, 1968.-- DECIDED JUNE 3,

           1968. 


PETITIONER WAS TRIED FOR RAPE IN NORTH CAROLINA, AN OFFENSE
PUNISHABLE BY DEATH UNLESS THE JURY RECOMMENDS LIFE IMPRISONMENT.  THE
PROSECUTION WAS PERMITTED TO CHALLENGE FOR CAUSE ALL PROSPECTIVE JURORS
WHO STATED THAT THEY WERE OPPOSED TO CAPITAL PUNISHMENT OR HAD
CONSCIENTIOUS SCRUPLES AGAINST IMPOSING THE DEATH PENALTY.  A RIFLE
WHICH WAS INTRODUCED AT THE TRIAL WAS OBTAINED BY A SEARCH OF
PETITIONER'S GRANDMOTHER'S HOUSE, WHERE HE RESIDED.  FOUR OFFICERS
APPEARED AT THE HOME, ANNOUNCED THAT THEY HAD A WARRANT TO SEARCH IT,
AND WERE TOLD BY THE OWNER TO "(GO AHEAD."  AT THE HEARING ON A MOTION
TO SUPPRESS, WHICH WAS DENIED, THE PROSECUTOR STATED THAT HE DID NOT
RELY ON A WARRANT TO JUSTIFY THE SEARCH, BUT ON CONSENT.  THE JURY
FOUND PETITIONER GUILTY, BUT RECOMMENDED LIFE IMPRISONMENT, AND THE
STATE SUPREME COURT AFFIRMED.  HELD: 

1.  PETITIONER HAS ADDUCED NO EVIDENCE TO SUPPORT HIS CLAIM THAT A
JURY FROM WHICH THOSE WHO ARE OPPOSED TO CAPITAL PUNISHMENT OR HAVE
CONSCIENTIOUS SCRUPLES AGAINST IMPOSING THE DEATH PENALTY ARE EXCLUDED
FOR CAUSE IS NECESSARILY "PROSECUTION PRONE," WARRANTING REVERSAL OF
HIS CONVICTION FOR DENIAL OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS
TO AN IMPARTIAL JURY.  WITHERSPOON V. ILLINOIS, ANTE, P. 510.  P. 545. 

2.  A SEARCH CANNOT BE JUSTIFIED AS LAWFUL ON THE BASIS OF CONSENT
WHEN THAT "CONSENT" HAS BEEN GIVEN ONLY AFTER THE OFFICIAL CONDUCTING
THE SEARCH HAS ASSERTED THAT HE POSSESSES A WARRANT; THERE IS NO
CONSENT UNDER SUCH CIRCUMSTANCES.  PP. 546-550. 

3.  BECAUSE THE RIFLE, WHICH WAS ERRONEOUSLY ADMITTED INTO EVIDENCE,
WAS PLAINLY DAMAGING AGAINST PETITIONER, ITS ADMISSION WAS NOT HARMLESS
ERROR.  CHAPMAN V. CALIFORNIA, 386 U.S. 18.  P. 550. 

270 N.C. 521, 155 S.E.2D 173, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS BROUGHT TO TRIAL IN A NORTH CAROLINA COURT UPON A
CHARGE OF RAPE, AN OFFENSE PUNISHABLE IN THAT STATE BY DEATH UNLESS THE
JURY RECOMMENDS LIFE IMPRISONMENT.  /1/  AMONG THE ITEMS OF EVIDENCE
INTRODUCED BY THE PROSECUTION AT THE TRIAL WAS A .22-CALIBER RIFLE
ALLEGEDLY USED IN THE COMMISSION OF THE CRIME.  THE JURY FOUND THE
PETITIONER GUILTY, BUT RECOMMENDED A SENTENCE OF LIFE IMPRISONMENT. 
/2/  THE TRIAL COURT IMPOSED THAT SENTENCE, AND THE SUPREME COURT OF
NORTH CAROLINA AFFIRMED THE JUDGMENT.  /3/  WE GRANTED CERTIORARI /4/
TO CONSIDER TWO SEPARATE CONSTITUTIONAL CLAIMS PRESSED UNSUCCESSFULLY
BY THE PETITIONER THROUGHOUT THE LITIGATION IN THE NORTH CAROLINA
COURTS.  FIRST, THE PETITIONER ARGUES THAT HIS CONSTITUTIONAL RIGHT TO
AN IMPARTIAL JURY WAS VIOLATED IN THIS CAPITAL CASE WHEN THE
PROSECUTION WAS PERMITTED TO CHALLENGE FOR CAUSE ALL PROSPECTIVE JURORS
WHO STATED THAT THEY WERE OPPOSED TO CAPITAL PUNISHMENT OR HAD
CONSCIENTIOUS SCRUPLES AGAINST IMPOSING THE DEATH PENALTY.  SECONDLY,
THE PETITIONER CONTENDS THAT THE .22-CALIBER RIFLE INTRODUCED IN
EVIDENCE AGAINST HIM WAS OBTAINED BY THE STATE IN A SEARCH AND SEIZURE
VIOLATIVE OF THE FOURTH AND FOURTEENTH AMENDMENTS. 

        I. 

IN WITHERSPOON V. ILLINOIS, ANTE, P. 510, WE HAVE HELD THAT A DEATH
SENTENCE CANNOT CONSTITUTIONALLY BE EXECUTED IF IMPOSED BY A JURY FROM
WHICH HAVE BEEN EXCLUDED FOR CAUSE THOSE WHO, WITHOUT MORE, ARE OPPOSED
TO CAPITAL PUNISHMENT OR HAVE CONSCIENTIOUS SCRUPLES AGAINST IMPOSING
THE DEATH PENALTY.  OUR DECISION IN WITHERSPOON DOES NOT GOVERN THE
PRESENT CASE, BECAUSE HERE THE JURY RECOMMENDED A SENTENCE OF LIFE
IMPRISONMENT.  THE PETITIONER ARGUES, HOWEVER, THAT A JURY QUALIFIED
UNDER SUCH STANDARDS MUST NECESSARILY BE BIASED AS WELL WITH RESPECT TO
A DEFENDANT'S GUILT, AND THAT HIS CONVICTION MUST ACCORDINGLY BE
REVERSED BECAUSE OF THE DENIAL OF HIS RIGHT UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO TRIAL BY AN IMPARTIAL JURY.  DUNCAN V.
LOUISIANA, ANTE, P. 145; TURNER V. LOUISIANA, 379 U.S. 466, 471-473;
IRVIN V. DOWD, 366 U.S. 717, 722-723.  WE CANNOT ACCEPT THAT CONTENTION
IN THE PRESENT CASE.  THE PETITIONER ADDUCED NO EVIDENCE TO SUPPORT THE
CLAIM THAT A JURY SELECTED AS THIS ONE WAS IS NECESSARILY "PROSECUTION
PRONE,"  /5/  AND THE MATERIALS REFERRED TO IN HIS BRIEF ARE NO MORE
SUBSTANTIAL THAN THOSE BROUGHT TO OUR ATTENTION IN WITHERSPOON.  /6/
ACCORDINGLY, WE DECLINE TO REVERSE THE JUDGMENT OF CONVICTION UPON THIS
BASIS. 

        II. 

THE PETITIONER LIVED WITH HIS GRANDMOTHER, MRS. HATTIE LEATH, A 66
YEAR-OLD NEGRO WIDOW, IN A HOUSE LOCATED IN A RURAL AREA AT THE END OF
AN ISOLATED MILE-LONG DIRT ROAD.  TWO DAYS AFTER THE ALLEGED OFFENSE
BUT PRIOR TO THE PETITIONER'S ARREST, FOUR WHITE LAW ENFORCEMENT
OFFICERS-- THE COUNTY SHERIFF, TWO OF HIS DEPUTIES, AND STATE
INVESTIGATOR-- WENT TO THIS HOUSE AND FOUND MRS. LEATH THERE WITH SOME
YOUNG CHILDREN.  SHE MET THE OFFICERS AT THE FRONT DOOR.  ONE OF THEM
ANNOUNCED, "I HAVE A SEARCH WARRANT TO SEARCH YOUR HOUSE."  MRS. LEATH
RESPONDED, "GO AHEAD," AND OPENED THE DOOR.  IN THE KITCHEN THE
OFFICERS FOUND THE RIFLE THAT WAS LATER INTRODUCED IN EVIDENCE AT THE
PETITIONER'S TRIAL AFTER A MOTION TO SUPPRESS HAD BEEN DENIED. 

AT THE HEARING ON THIS MOTION, THE PROSECUTOR INFORMED THE COURT
THAT HE DID NOT RELY UPON A WARRANT TO JUSTIFY THE SEARCH, BUT UPON THE
CONSENT OF MRS. LEATH.  /7/  SHE TESTIFIED AT THE HEARING, STATING,
AMONG OTHER THINGS: 

"FOUR OF THEM CAME.  I WAS BUSY ABOUT MY WORK, AND THEY WALKED INTO
THE HOUSE AND ONE OF THEM WALKED UP AND SAID, 'I HAVE A SEARCH WARRANT
TO SEARCH YOUR HOUSE,' AND I WALKED OUT AND TOLD THEM TO COME ON IN . .
. . HE JUST COME ON IN AND SAID HE HAD A WARRANT TO SEARCH THE HOUSE,
AND HE DIDN'T READ IT TO ME OR NOTHING.  SO, I JUST TOLD HIM TO COME ON
IN AND GO AHEAD AND SEARCH, AND I WENT ON ABOUT MY WORK.  I WASNT
CONCERNED WHAT HE WAS ABOUT.  I WAS JUST SATISFIED.  HE JUST TOLD ME HE
HAD A SEARCH WARRANT, BUT HE DID'NT READ IT TO ME. HE DID TELL ME HE
HAD A SEARCH WARRANT. 

        .   .          .          . 

     " . . . HE SAID HE WAS THE LAW AND HAD A SEARCH WARRANT TO

  SEARCH THE HOUSE, WHY I THOUGHT HE COULD GO AHEAD.  I BELIEVED HE

  HAD A SEARCH WARRANT.  I TOOK HIM AT HIS WORD . . . . I JUST SEEN

  THEM OUT THERE IN THE YARD.  THEY GOT THROUGH THE DOOR WHEN I

OPENED IT.  AT THAT TIME, I DID NOT KNOW MY GRANDSON HAD BEEN

  CHARGED WITH CRIME.  NOBODY TOLD ME ANYTHING.  THEY DIDN'T TELL

  ME ANYTHING, JUST PICKED IT UP LIKE THAT.  THEY DIDN'T TELL ME

  NOTHING ABOUT MY GRANDSON."  /8/

UPON THE BASIS OF MRS. LEATH'S TESTIMONY, THE TRIAL COURT FOUND THAT
SHE HAD GIVEN HER CONSENT TO THE SEARCH, AND DENIED THE MOTION TO
SUPPRESS.  /9/  THE SUPREME COURT OF NORTH CAROLINA APPROVED THE
ADMISSION OF THE EVIDENCE ON THE SAME BASIS.  /10/ 

THE ISSUE THUS PRESENTED IS WHETHER A SEARCH CAN BE JUSTIFIED AS
LAWFUL ON THE BASIS OF CONSENT WHEN THAT "CONSENT" HAS BEEN GIVEN ONLY
AFTER THE OFFICIAL CONDUCTING THE SEARCH HAS ASSERTED THAT HE POSSESSES
A WARRANT.  /11/  WE HOLD THAT THERE CAN BE NO CONSENT UNDER SUCH
CIRCUMSTANCES. 

WHEN A PROSECUTOR SEEKS TO RELY UPON THE CONSENT TO JUSTIFY THE
LAWFULNESS OF A SEARCH, HE HAS THE BURDEN OF PROVING THAT THE CONSENT
WAS, IN FACT, FREELY AND VOLUNTARILY GIVEN.  /12/  THIS BURDEN CANNOT
BE DISCHARGED BY SHOWING NO MORE THAN ACQUIESCENCE TO A CLAIM OF LAWFUL
AUTHORITY.  /13/  A SEARCH CONDUCTED IN RELIANCE UPON A WARRANT CANNOT
LATER BE JUSTIFIED ON THE BASIS OF CONSENT IF IT TURNS OUT THAT THE
WARRANT WAS INVALID.  /14/  THE RESULT CAN BE NO DIFFERENT WHEN IT
TURNS OUT THAT THE STATE DOES NOT EVEN ATTEMPT TO RELY UPON THE
VALIDITY OF THE WARRANT, OR FAILS TO SHOW THAT THERE WAS, IN FACT, ANY
WARRANT AT ALL.  /15/ 

WHEN A LAW ENFORCEMENT OFFICER CLAIMS AUTHORITY TO SEARCH A HOME
UNDER A WARRANT, HE ANNOUNCES IN EFFECT THAT THE OCCUPANT HAS NO RIGHT
TO RESIST THE SEARCH.  THE SITUATION IS INSTINCT WITH COERCION-- ALBEIT
COLORABLY LAWFUL COERCION.  WHERE THERE IS COERCION THERE CANNOT BE
CONSENT. 

WE HOLD THAT MRS. LEATH DID NOT CONSENT TO THE SEARCH, AND THAT IT
WAS CONSTITUTIONAL ERROR TO ADMIT THE RIFLE IN EVIDENCE AGAINST THE
PEITIONER.  MAPP V. OHIO, 367 U.S. 643.  BECAUSE THE RIFLE WAS PLAINLY
DAMAGING EVIDENCE AGAINST THE PETITIONER WITH RESPECT TO ALL THREE OF
THE CHARGES AGAINST HIM, ITS ADMISSION AT THE TRIAL WAS NOT HARMLESS
ERROR.  CHAPMAN V. CALIFORNIA, 386 U.S. 18.  /16/ 

THE JUDGMENT OF THE SUPREME COURT OF NORTH CAROLINA IS, ACCORDINGLY,
REVERSED, AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS JOINS PART II OF THE OPINION OF THE COURT. 
SINCE, HOWEVER, THE RECORD SHOWS THAT 16 OF 53 PROSPECTIVE JURORS WERE
EXCUSED FOR CAUSE BECAUSE OF THEIR OPPOSITION TO CAPITAL PUNISHMENT, HE
WOULD ALSO REVERSE ON THE GROUND THAT PETITIONER WAS DENIED THE RIGHT
TO TRIAL ON THE ISSUE GUILT BY A JURY REPRESENTING A FAIR CROSS-SECTION
OF THE COMMUNITY.  WITHERSPOON V. ILLINOIS, ANTE, AT 523 (SEPARATE
OPINION).  UNDER NORTH CAROLINA LAW, RAPE IS PUNISHABLE BY DEATH UNLESS
THE JURY RECOMMENDS LIFE IMPRISONMENT.  N.C. GEN. STAT. SEC. 14-21
(1953).  BUT AN INDICTMENT FOR RAPE INCLUDES THE LESSER OFFENSE OF AN
ASSAULT WITH INTENT TO COMMIT RAPE, AND THE COURT HAS THE DUTY TO
SUBMIT TO THE JURY THE LESSER DEGRESS OF THE OFFENSE OF RAPE WHICH ARE
SUPPORTED BY THE EVIDENCE.  STATE V. GREEN, 246 N.C. 717, 100 S.E.2D 52
(1957).  SEE N.C. GEN. STAT. SECS. 15-169, 15-170 (1953).  THESE
INCLUDE ASSAULT WITH INTENT TO COMMIT RAPE, FOR WHICH THE RANGE OF
PUNISHMENT IS ONE TO 15 YEARS' IMPRISONMENT (N.C. GEN. STAT. SEC. 14
22), AND ASSAULT (N.C. GEN. STAT. SEC. 14-33).  IN THE INSTANT CASE,
THE TRIAL JUDGE DID IN FACT CHARGE THE JURY WITH RESPECT TO THESE
LESSER OFFENSES. 

/1/  "EVERY PERSON WHO IS CONVICTED OF RAVISHING AND CARNALLY
KNOWING ANY FEMALE OF THE AGE OF TWELVE YEARS OR MORE BY FORCE AND
AGAINST HER WILL, OR WHO IS CONVICTED OF UNLAWFULLY AND CARNALLY
KNOWING AND ABUSING ANY FEMALE CHILD UNDER THE AGE OF TWELVE YEARS,
SHALL SUFFER DEATH:  PROVIDED, IF THE JURY SHALL SO RECOMMEND AT THE
TIME OF RENDERING ITS VERDICT IN OPEN COURT, THE PUNISHMENT SHALL BE
IMPRISONMENT FOR LIFE IN THE STATE'S PRISON, AND THE COURT SHALL SO
INSTRUCT THE JURY."  N. C. GEN. STAT. SEC. 14-21 (1953). 

/2/  THE PETITIONER WAS ALSO CONVICTED UPON TWO CHARGES OF FELONIOUS
ASAULT AND SENTENCED TO CONSECUTIVE 10-YEAR PRISON TERMS. 

/3/  270 N.C. 521, 155 S.E.2D 173. 

/4/  389 U.S. 1034. 

/5/  HE DID SUBMIT AFFIDAVITS TO THE NORTH CAROLINA SUPREME COURT
REFERRING TO STUDIES BY W. C. WILSON AND F. J. GOLDBERG, SEE
WITHERSPOON V. ILLINOIS, ANTE, AT 517, N. 10.  THE COURT MADE NO
FINDINGS WITH RESPECT TO THOSE STUDIES AND DID NOT MENTION THEM IN ITS
OPINION. 

/6/  IN ADDITION TO THE MATERIALS MENTIONED IN WITHERSPOON, ANTE, AT
517, N. 10, THE PETITIONER'S BRIEF IN THIS COURT CITES AN UMPUBLISHED
DISSERTATION BY R. CROSSON, AN INVESTIGATION INTO CERTAIN PERSONALITY
VARIABLES AMONG CAPITAL TRIAL JURORS (WESTERN RESERVE UNIVERSITY,
JANUARY 1966), INVOLVING A SAMPLE OF 72 JURORS IN OHIO. 

/7/  "THE COURT:  THERE IS A MOTION HERE THAT SAYS THE PROPERTY
(WAS) SEIZED AGAINST THE WILL OF MRS. HATTIE LEATH AND WITHOUT A SEARCH
WARRANT.  NOW, THE QUESTION IS, ARE WE GOING INTO THE SEARCH WARRANT? 

"MR. COOPER:  THE STATE IS NOT RELYING ON THE SEARCH WARRANT. 

"THE COURT:  ARE YOU STATING SO FOR THE RECORD? 

"MR. COOPER:  YES, SIR." 

/8/  SHE ALSO TESTIFIED, AT ANOTHER POINT: 

"I HAD NO OBJECTION TO THEM MAKING A SEARCH OF MY HOUSE.  I WAS
WILLING TO LET THEM LOOK IN ANY ROOM OR DRAWER IN MY HOUSE THEY WANTED
TO.  NOBODY THREATENED ME WITH ANYTHING.  NOBODY TOLD ME THEY WERE
GOING TO HURT ME IF I DIDN'T LET THEM SEARCH MY HOUSE.  NOBODY TOLD ME
THEY WOULD GIVE ME ANY MONEY IF I WOULD LET THEM SEARCH.  I LET THEM
SEARCH, AND IT WAS ALL MY OWN FREE WILL.  NOBODY FORCED ME AT ALL. 

        .          .          .   . "I JUST GIVE THEM A FREE WILL
TO LOOK BECAUSE I FELT LIKE THE BOY WASN'T GUILTY." 

THE TRANSCRIPT OF THE SUPPRESSION HEARING COMES TO US FROM NORTH
CAROLINA IN THE FORM OF A NARRATIVE; I.E., THE ACTUAL QUESTIONS AND
ANSWERS HAVE BEEN REWRITTEN IN THE FORM OF CONTINUOUS FIRST PERSON
TESTIMONY.  THE EFFECT IS TO PUT INTO THE MOUTH OF THE WITNESS SOME OF
THE WORDS OF THE ATTORNEYS.  IN THE CASE OF AN OBVIOUSLY COMPLAINT
WITNESS LIKE MRS. LEATH, THE RESULT IS A NARRATIVE THAT HAS THE TONE OF
DECISIVENESS BUT IS SHOT THROUGH WITH CONTRADICTIONS. 

/9/  "THE COURT FINDS THAT FROM THE EVIDENCE OF MRS. HATTIE LEATH
THAT IT IS OF A CLEAR AND CONVINCING NATURE THAT SHE, THE SAID MRS.
HATTIE LEATH, VOLUNTARILY CONSENTED TO THE SEARCH OF HER PREMISES, AS
IS MORE PARTICULARLY SET FORTH IN HER EVIDENCE, AND THAT THAT CONSENT
WAS SPECIFICALLY GIVEN AND IS NOT THE RESULT OF COERCION FROM THE
OFFICERS." 

/10/  THAT COURT ALSO STATED:  "THE FACT THAT (THE SEARCH) DID
REVEAL THE PRESENCE OF THE GUILTY WEAPON . . . JUSTIFIES THE SEARCH . .
. . (THE PETITIONER'S) RIGHTS HAVE NOT BEEN VIOLATED.  RATHER, HIS
WRONGS HAVE BEEN DETECTED."  270 N.C., AT 530-531, 155 S.E.2D, AT 180. 

ANY IDEA THAT A SEARCH CAN BE JUSTIFIED BY WHAT IT TURNS UP WAS LONG
AGO REJECTED IN OUR CONSTITUTIONAL JURISPRUDENCE.  "A SEARCH PROSECUTED
IN VIOLATION OF THE CONSTITUTION IS NOT MADE LAWFUL BY WHAT IT BRINGS
TO LIGHT . . . . "  BYARS V. UNITED STATES, 273 U.S. 28, 29.  SEE ALSO
UNITED STATES V. DIRE, 332 U.S. 581, 595; HENRY V. UNITED STATES, 361
U.S.98, 103. 

/11/  MRS. LEATH OWNED BOTH THE HOUSE AND THE RIFLE.  THE PETITIONER
CONCEDES THAT HER VOLUNTARY CONSENT TO THE SEARCH WOULD HAVE BEEN
BINDING UPON HIM.  CONVERSELY, THERE CAN BE NO QUESTION OF THE
PETITIONER'S STANDING TO CHALLENGE THE LAWFULNESS OF THE SEARCH.  HE
WAS THE "ONE AGAINST WHOM THE SEARCH WAS DIRECTED," JONES V. UNITED
STATES, 362 U.S. 257, 261, AND THE HOUSE SEARCHED WAS HIS HOME.  THE
RIFLE WAS USED BY ALL MEMBERS OF THE HOUSEHOLD AND WAS FOUND IN THE
COMMON PART OF THE HOUSE. 

/12/  WREN V. UNITED STATES, 352 F.2D 617; SIMMONS V. BOMAR, 349
F.2D 365; JUDD V. UNITED STATES, 89 U.S.APP.D.C. 64, 190 F.2D 649;
KOVACH V. UNITED STATES, 53 F.2D 639. 

/13/  SEE, E.G., AMOS V. UNITED STATES, 255 U.S. 313, 317; JOHNSON
V. UNITED STATES, 333 U.S. 10, 13; HIGGINS V. UNITED STATES, 93
U.S.APP.D.C. 340, 209 F.2D 819; UNITED STATES V. MARRA, 40 F.2D 271;
MACKENZIE V. ROBBINS, 248 F.SUPP.  496. 

/14/  "ORDERLY SUBMISSION TO LAW-ENFORCEMENT OFFICERS WHO, IN
EFFECT, REPRESENTED TO THE DEFENDANT THAT THEY HAD THE AUTHORITY TO
ENTER AND SEARCH THE HOUSE, AGAINST HIS WILL IF NECESSARY, WAS NOT SUCH
CONSENT AS CONSTITUTED AN UNDERSTANDING, INTENTIONAL AND VOLUNTARY
WAIVER BY THE DEFENDANT OF HIS FUNADMENTAL RIGHTS UNDER THE FOURTH
AMENDMENT OF THE CONSTITUTION."  UNITED STATES V. ELLIOTT, 210 F.SUPP. 
357, 360.     "ONE IS NOT HELD TO HAVE CONSENTED TO THE SEARCH OF HIS
PREMISES WHERE IT IS ACCOMPLISHED PURSUANT TO AN APPARENTLY VALID
SEARCH WARRANT.  ON THE CONTRARY, THE LEGAL EFFECT IS THAT CONSENT IS
ON THE BASIS OF SUCH A WARRANT AND HIS PERMISSION IS CONSTRUED AS AN
INTENTION TO ABIDE BY THE LAW AND NOT RESIST THE SEARCH UNDER THE
WARRANT, RATHER THAN AN INVITATION TO SEARCH."  BULL V. ARMSTRONG, 254
ALA. 390, 394, 48 SO.2D 467, 470. 

"ONE WHO, UPON THE COMMAND OF AN OFFICER AUTHORIZED TO ENTER AND
SEARCH AND SEIZE BY SEARCH WARRANT, OPENS THE DOOR TO THE OFFICER AND
ACQUIESCES IN OBEDIENCE TO SUCH A REQUEST, NO MATTER BY WHAT LANGUAGE
USED IN SUCH ACQUIESCENCE, IS BUT SHOWING A REGARD FOR THE SUPREMACY OF
THE LAW . . . . THE PRESENTATION OF A SEARCH WARRANT TO THOSE IN CHARGE
AT THE PLACE TO BE SEARCHED, BY ONE AUTHORIZED TO SERVE IT, IS TINGED
WITH COERCION, AND SUBMISSION THERETO CANNOT BE CONSIDERED AN
INVITATION THAT WOULD WAIVE THE CONSTITUTIONAL RIGHT AGAINST
UNREASONABLE SEARCHED AND SEIZURES, BUT RATHER IS TO BE CONSIDERED A
BUSMISSION TO THE LAW."  MENO V. STATE, 197 IND. 16, 24, 164 N.E. 93,
96. 

SEE ALSO SALATA V. UNITED STATES, 286 F. 125; BROWN V. STATE, 42
ALA.APP.  429, 167 SO.2D 281; MATTINGLY V. COMMONWEALTH, 199 KY. 30,
250 S.W. 105.  CF. GIBSON V. UNITED STATES, 80 U.S.APP.D.C. 81, 149
F.2D 381; NAPLES V. MAXWELL, 271 F.SUPP.  850; ATWOOD V. STATE, 44
OKLA.CR. 206, 280 P. 319; STATE V. WATSON, 133 MISS.  796, 98 SO. 241. 

/15/  DURING THE COURSE OF THE ARGUMENT IN THIS CASE WE WERE ADVISED
THAT THE SEARCHING OFFICERS DID, IN FACT, HAVE A WARRANT.  BUT NO
WARRANT WAS EVER RETURNED, AND THERE IS NO WAY OF KNOWING THE
CONDITIONS UNDER WHICH IT WAS ISSUED, OR DETERMINING WHETHER IT WAS
BASED UPON PROBABLE CAUSE. 

/16/  IT IS SUGGESTED IN DISSENT THAT "(EVEN ASSUMING . . . THAT
THERE WAS NO CONSENT TO SEARCH AND THAT THE RIFLE . . . SHOULD NOT HAVE
BEN ADMITTED INTO EVIDENCE, . . . THE CONVICTION SHOULD STAND."  THIS
SUGGESTION SEEMS TO REST ON THE "HORRIBLE" FACTS OF THE CASE, AND THE
ASSUMPTION THAT THE PETITIONER WAS GUILTY.  BUT IT IS NOT THE FUNCTION
OF THIS COURT TO DETERMINE INNOCENCE OR GUILT, MUCH LESS TO APPLY OUR
OWN SUBJECTIVE NOTIIONS OF JUSTICE.  OUR DUTY IS TO UPHOLD THE
CONSTITUTION OF THE UNITED STATES. 

IN VIEW OF THE DISCURSIVE FACTUAL RECITAL CONTAINED IN THE
DISSENTING OPINION, HOWEVER, AN ADDITIONAL WORD MAY BE IN ORDER.  THERE
CAN BE NO DOUBT THAT THE CRIMES WERE GRAVE AND SHOCKING.  THERE CAN BE
DOUBT THAT THE PETITIONER WAS THEIR PERPETRATOR.  THE CRIMES WERE
COMMITTED AT NIGHT.  WHEN, AT FIRST, THE VICTIMS SEPARATELY VIEWED A
LINEUP THAT INCLUDED THE PETITIONER, EACH OF THE VICTIMS IDENTIFIED THE
SAME MAN AS THEIR ASSAILANT.  THAT MAN WAS NOT THE PETITIONER.  LATER,
THE VICTIMS TOGETHER VIEWED ANOTHER LINEUP, AND EVERY MAN IN THE LINEUP
WAS MADE TO SPEAK HIS NAME FOR "VOICE IDENTIFICATION."  THIS TIME THE
VICTIMS IDENTIFIED THE PETITIONER AS THEIR ASSAILANT.  AT THE TIME OF
THE LINEUPS A LOCAL NEWSPAPER HAD REPORTED THAT A MAN NAMED WAYNE
BUMPER WAS BEING HELD BY THE SHERIFF AS THE "PRIME SUSPECT" IN THE
CASE, AND AT LEAST ONE OF THE VICTIMS KNEW OF THAT FACT.  EARLIER BOTH
VICTIMS HAD BEEN SHOWN A COLLECTION OF PHOTOGRAPHS.  ONE VICTIM
IDENTIFIED A PICTURE OF THE PETITIONER; THE PETITIONER'S NAME WAS
WRITTEN ON THE BACK OF THE PHOTOGRAPH. 

MR. JUSTICE HARLAN, CONCURRING. 

WHILE I JOIN IN THE JUDGMENT OF THE COURT AND IN PART II OF ITS
OPINION, I AM PROMPTED TO ADD A BRIEF NOTE. 

I SHARE, AS I AM SURE EVERY MEMBER OF THE MAJORITY DOES, MR. JUSTICE
BLACK'S ABHORRENCE OF THE BRUTAL CRIME OF WHICH PETITIONER STANDS
CONVICTED.  TO AVOID ANY MISAPPREHENSION, I WISH TO MAKE IT PERFECTLY
CLEAR THAT REVERSAL OF THIS CONVICTION IS NOT A "PENALTY" IMPOSED ON
THE STATE FOR INFRINGEMENT OF FEDERAL CONSTITUTIONAL RIGHTS.  REVERSAL
BY THIS COURT RESULTS, AS ALWAYS, ONLY FROM A DECISION THAT PETITIONER
WAS NOT CONSTITUTIONALLY PROVED GUILTY AND HENCE THERE IS NO LEGALLY
VALID BASIS FOR IMPOSITION OF A PENALTY UPON HIM. 

IN DETERMINING WHETHER A CRIMINAL DEFENDANT WAS CONVICTED "ACCORDING
TO LAW," THE TEST IS NOT AND CANNOT BE SIMPLY WHETHER THIS COURT FINDS
CREDIBLE THE EVIDENCE AGAINST HIM.  CREDITING OR DISCREDITING EVIDENCE
IS THE FUNCTION OF THE TRIER OF FACT, IN THIS CASE A JURY.  THE JURY'S
VERDICT IS A LAWFUL VERDICT, HOWEVER, ONLY IF IT IS BASED UPON EVIDENCE
CONSTITUTIONALLY ADMISSIBLE.  WHEN IT IS NOT, AS IT IS NOT HERE,
REVERSAL RESTS ON THE OLDEST AND MOST FUNDAMENTAL PRINCIPLE OF OUR
CRIMINAL JURISPRUDENCE-- THAT A DEFENDANT IS ENTITLED TO PUT THE
PROSECUTION TO ITS LAWFUL PROOF. 

THE EVIDENCE AGAINST PETITIONER CONSISTED IN PART OF A GUN THAT HE
ALLEGED WAS UNLAWFULLY TAKEN FROM THE HOME OF MRS. LEATH, WHERE
PETITIONER WAS LIVING.  THE STATE CONTENDED THAT MRS. LEATH HAD
CONSENTED TO THE SEARCH OF HER HOME.  HOWEVER, THIS "CONSENT" WAS
OBTAINED IMMEDIATELY AFTER A SHERIFF TOLD MRS. LEATH THAT HE HAD A
SEARCH WARRANT, THAT IS, THAT HE HAD A LAWFUL RIGHT TO ENTER HER HOME
WITH OR WITHOUT CONSENT.  NOTHING MRS. LEATH SAID IN RESPONSE TO THAT
ANNOUNCEMENT CAN BE TAKEN TO MEAN THAT SHE CONSIDERED THE OFFICERS
WELCOME IN HER HOME WITH OR WITHOUT A WARRANT.  WHAT SHE WOULD HAVE
DONE IF THE SHERIFF HAD NOT SAID HE HAD A WARRANT IS, ON THIS RECORD, A
HYPOTHETICAL QUESTION ABOUT AN IMAGINARY SITUATION THAT MRS. LEATH
NEVER FACED. 

OF COURSE, IF THE OFFICERS HAD A VALID SEARCH WARRANT, NO CONSENT
WAS REQUIRED TO MAKE THE SEARCH LAWFUL.  THERE WAS A SEARCH WARRANT IN
THIS CASE, AND IT REMAINS POSSIBLE THAT THIS WARRANT WAS ISSUED UNDER
CIRCUMSTANCES MEETING ALL THE REQUIREMENTS OF THE FEDERAL
CONSTITUTION.  CONSEQUENTLY, IF THIS WERE A SITUATION WHERE A STATE
COURT HAD SIMPLY CHOSEN THE WRONG LINE OF CONSTITUTIONAL ANALYSIS OF
THIS SEARCH, I WOULD NOTE TO REMAND THE CASE TO GIVE THE PROSECUTION AN
OPPORTUNITY TO JUSTIFY THE SEARCH ON PROPER GROUNDS.  HOWEVER, AS NOTED
BY THE COURT, THE PROSECUTION HERE EXPLICITLY AND REPEATEDLY RENOUNCED
ANY RELIANCE ON THE WARRANT.  LIKE ALL OTHER PARTIES TO LAWSUITS, A
PROSECUTOR HAS AN OBLICATION TO THE COURTS (INCLUDING THIS COURT) AND
TO OTHER PARTIES TO PRESENT ITS CLAIMS AT THE EARLIEST APPROPRIATE
TIME, AND TO CREATE AN ADEQUATE RECORD.  CF. CIUCCI V. ILLINOIS, 356
U.S. 571, 573 (SEPARATE NOTE OF MR. JUSTICE FRANKFURTER AND MR. JUSTICE
HARLAN). 

FINALLY, IF I WERE PERSUADED THAT THE ADMISSION OF THE GUN WAS
"HARMLESS ERROR," I WOULD VOTE TO AFFIRM, AND IF I WERE PERSUADED THAT
IT WAS ARGUABLY HARMLESS ERROR, I WOULD VOTE TO REMAND THE CASE FOR
STATE CONSIDERATION OF THE POINT.  BUT THE QUESTION CANNOT BE WHETHER,
IN THE VIEW OF THIS COURT, THE DEFENDANT ACTUALLY COMMITTED THE CRIMES
CHARGED, SO THAT THE ERROR WAS "HARMLESS" IN THE SENSE THAT PETITIONER
GOT WHAT HE DESERVED.  THE QUESTION IS WHETHER THE ERROR WAS SUCH THAT
IT CANNOT BE SAID THAT PETITIONER'S GUILT WAS ADJUDICATED ON THE BASIS
OF CONSTITUTIONALLY ADMISSIBLE EVIDENCE, WHICH MEANS, IN THIS CASE,
WHETHER THE PROPERLY ADMISSIBLE EVIDENCE WAS SUCH THAT THE IMPROPER
ADMISSION OF THE GUN COULD NOT HAVE AFFECTED THE RESULT. 

I DO NOT THINK THIS CAN BE SAID HERE.  THE CRITICAL QUESTION WAS THE
IDENTITY OF THE PERPETRATOR OF THESE CRIMES.  THE STATE INTRODUCED
EYEWITNESS IDENTIFICATION OF PETITIONER BY HIS TWO VICTIMS, AND A GUN
WITH WHICH THERE WAS EVIDENCE THESE VICTIMS WERE SHOT, TOGETHER WITH
TESTIMONY THAT IT HAD BEEN FOUND IN PETITIONER'S PLACE OF ABODE.  THE
JURY COULD, OF COURSE, HAVE FOUND THE TESTIMONY OF THE VICTIMS CREDIBLE
BEYOND A REASONABLE DOUBT, AND CONVICTED PETITIONER ON THIS BASIS
ALONE.  BUT IT MIGHT WELL NOT HAVE.  THE ADDITION OF A TANGIBLE CROSS
CHECK LINKING PETITIONER WITH THE CRIME CAN HARDLY BE SAID, FROM THE
JUDICAL VANTAGE POINT, TO HAVE BEEN HARMLESS SURPLUSAGE. 

MR. JUSTICE BLACK, DISSENTING. 

        I. 

THIS CASE, LIKE WITHERSPOON V. ILLINOIS, ANTE, P. 510, DECIDED
TODAY, WAS BROUGHT TO THIS COURT PRIMARILY TO DECIDE THE QUESTION
WHETHER THE CONSTITUTIONAL RIGHTS OF A CRIMINAL DEFENDANT ARE VIOLATED
WHEN PROSPECTIVE JURORS WHO STATE THEY ARE OPPOSED TO CAPITAL
PUNISHMENT OR WHO HAVE CONSCIENTIOUS SCRUPLES AGAINST IMPOSING THE
DEATH PEANLTY ARE EXCLUDED FOR CAUSE.  AS THE COURT IN WITHERSPOON
LIMITED ITS HOLDING TO THE QUESTION OF PUNISHMENT AND NOT OF GUILT, /1/
THE JURY ISSUE BECAME MOOT IN THIS CASE SINCE PETITIONER HAD BEEN
SENTENCED TO LIFE IMPRISONMENT.  IRONICALLY, HOWEVER, THIS CASE NOW
BECOMES ABOUT AS GOOD AN EXAMPLE AS CAN BE FOUND OF THE FALLACIOUS
ASSUMPTION OF THE HOLDING IN WITHERSPOON.  FOR THE WITHERSPOON DECISION
RESTS ON THE PREMISE THAT A JURY "(CULLED OF ALL WHO HARBOR DOUBTS
ABOUT THE WISDOM OF CAPITAL PUNISHMENT" IS SOMEHOW PROSECUTION-PRONE,
CALLOUS OR EVEN LACKING IN "CHARITY."  /2/  YET THE JURY IN THIS CASE,
FROM WHICH HAD BEEN EXCLUDED ALL PERSONS WHO STATED THEY WERE OPPOSED
TO THE DEATH PENALTY, UNANIMOUSLY RECOMMENDED LIFE IMPRISONMENT IN A
CASE WHERE, BUT FOR THIER RECOMMENDATION, THE DEATH SENTENCE WOULD HAVE
BEEN AUTOMATIC.  /3/  AND THIS IS A CASE WHERE THE EVIDENCE
CONCLUSIVELY SHOWED THAT THE ACCUSED TWICE RAPED A YOUNG WOMAN AT
GUNPOINT, SHOT BOTH THE WOMAN AND HER COMPANION WHILE THEY WERE TIED
HELPLESSLY TO TREES WITH THE ANNOUNCED INTENTION OF KILLING THEM, AND
LEFT THEM FOR DEAD.  EVEN WITH THESE HORRIBLE FACTS BEFORE IT, THIS SO
CALLED "PROSECUTION-PRONE,"  "CALLOUS," AND "UNCHARITABLE" JURY REFUSED
TO ALLOW IMPOSITION OF THE DEATH PEANLTY AND RECOMMENDED LIFE
IMPRISONMENT INSTEAD.  IN THESE CIRCUMSTANCES, WHERE THE REAL REASON
FOR GRANTING CERTIORARI IN THE CASE HAS DISAPPEARED, IT SEEMS TO ME
THAT THE COURT SHOULD DISMISS THE PETITION AS IMPROVIDENTLY GRANTED. 
THIS IS ESPECIALLY TRUE HERE, WHERE, AS I POINT OUT AT THE END OF THIS
OPINION, THERE IS AN OPEN-AND-SHUT CASE OF GUILT, AND THE PETITIONER
RECEIVED THE LIGHTEST SENTENCE AVAILABLE UNDER STATE LAW. 

        II. 

PASSING OVER THE JURY ISSUE, THE COURT STILL REVERSES THE CONVICTION
IN THIS CASE AND SENDS IT BACK FOR A NEW TRIAL ON THE GROUND THAT THE
RIFLE, WHICH THE RECORD SHOWS WAS USED TO SHOOT THE VICTIMS, AND WHICH
IS HELD BY THE MAJORITY TO HAVE BEEN OBTAINED THROUGH AN
UNCONSTITUTIONAL SEARCH AND SEIZURE, WAS ADMITTED INTO EVIDENCE AT
PETITIONER'S TRIAL.  ONE OF THE REASONS THAT I CANNOT AGREE WITH THE
COURT'S REVERSAL IS BECAUSE I BELIEVE THE SEARCHING OFFICERS HAD VALID
PERMISSION TO CONDUCT THEIR SEARCH.  THE FACTS SURROUNDING THE SEARCH
ARE THESE:  PETITIONER HAD BEEN RAISED BY HIS GRANDMOTHER, MRS. HATTIE
LEATH, WITH WHOM HE WAS LIVING AT THE TIME THE RAPE AND ASSAULTS WERE
COMMITTED.  SHORTLY AFTER THE VICTIMS WERE ABLE TO RECOUNT TO THE
POLICE WHAT HAD HAPPENED TO THEM, THE COUNTY SHERIFF, WITH TWO OF HIS
DEPUTIES AND A STATE POLICE OFFICER, WENT TO MRS. LEATH'S HOUSE.  ONE
OF THE DEPUTIES WENT UP ON THE PORCH OF THE HOUSE AND STATED TO MRS.
LEATH, WHO WAS STANDING INSIDE THE SCREEN DOOR, THAT HE HAD A WARRANT
TO SEARCH HER HOUSE.  HE DID NOT APPEAR TO HAVE ANY PAPER IN HIS HAND,
AND HE DID NOT READ ANYTHING TO HER.  MRS. LEATH'S IMMEDIATE RESPONSE,
WITHOUT MENTIONING ANYTHING ABOUT A WARRANT OR ASKING TO SEE IT OR READ
IT OR HAVE IT READ TO HER, WAS TO TELL THE DEPUTY "TO COME ON IN."  AT
THE TRIAL MRS. LEATH DESCRIBED HER REACTION TO THE VISIT OF THE LAW
OFFICERS AS FOLLOWS: 

"HE DID TELL ME HE HAD A SEARCH WARRANT.  I DON'T KNOW IF SHERIFF
STOCKARD WAS WITH HIM.  I WAS NOT PAYING MUCH ATTENTION.  I TOLD MR.
STOCKARD (AFTER HE HAD COME UP ON THE PORCH) TO GO AHEAD AND LOOK ALL
OVER THE HOUSE.  I HAD NO OBJECTION TO THEM MAKING A SEARCH OF MY
HOUSE.  I WAS WILLING TO LET THEM LOOK IN ANY ROOM OR DRAWER IN MY
HOUSE THEY WANTED TO.  NOBODY THREATENED ME WITH ANYTHING.  NOBODY TOLD
ME THEY WERE GOING TO HURT ME IF I DIDN'T LET THEM SEARCH MY HOUSE. 
NOBODY TOLD ME THEY WOULD GIVE ME ANY MONEY IF I WOULD LET THEM
SEARCH.  I LET THEM SEARCH, AND IT WAS ALL MY OWN FREE WILL.  NOBODY
FORCED ME AT ALL." 

MY STUDY OF THE RECORD IN THIS CASE CONVINCES ME THAT MRS. LEATH
VOLUNTARILY CONSENTED TO THIS SEARCH, /4/  AND IN FACT THAT SHE
ACTUALLY WANTED THE OFFICERS TO SEARCH HER HOUSE-- TO PROVE TO THEM
THAT SHE HAD NOTHING TO HIDE.  MRS. LEATH'S READINESS TO PERMIT THE
SEARCH WAS THE ACTION OF A PERSON SO CONSCIOUS OF HER INNOCENCE, SO
PROUD OF HER OWN HOME, /5/  THAT SHE WAS NOT GOING TO REQUIRE A SEARCH
WARRANT, THUS INDICATING A DOUBT ABOUT THE RECTITUDE OF HER HOUSEHOLD. 
THERE ARE SUCH PEOPLE IN THIS WORLD OF OURS, /6/  AND THE EVIDENCE IN
THIS CASE CAUSES ME TO BELIEVE MRS. LEATH IS ONE OF THEM.  AS SHE
HERSELF TESTIFIED, "I JUST GIVE THEM A FREE WILL TO LOOK BECAUSE I FELT
LIKE THE BOY WASN'T GUILTY." 

DESPITE THE STATEMENTS OF MRS. LEATH CITED ABOVE, AND DESPITE THE
CLEAR FINDING OF CONSENT BY THE TRIAL JUDGE, WHO PERSONALLY SAW AND
HEARD MRS. LEATH'S TESTIFY, /7/  THIS COURT, REFUSING TO ACCEPT MRS.
LEATH'S SWORN TESTIMONY THAT SHE DID FREELY CONSENT AND OVERRULING THE
TRIAL JUDGE'S FINDINGS, CONCLUDES ON ITS OWN THAT SHE DID NOT CONSENT. 
I DO NOT BELIEVE THE COURT SHOULD SUBSTITUTE WHAT IT BELIEVES MRS.
LEATH SHOULD HAVE SAID FOR WHAT SHE ACTUALLY SAID-- "IT WAS ALL MY OWN
FREE WILL."  I CANNOT ACCEPT WHAT I BELIEVE TO BE AN UNWARRANTED
CONCLUSION BY THE COURT. 

        III. 

EVEN ASSUMING FOR THE PURPOSES OF ARGUMENT THAT THERE WAS NO CONSENT
TO SEARCH AND THAT THE RIFLE WHICH WAS SEIZED FROM MRS. LEATH'S HOUSE
SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE, I STILL BELIEVE THE
CONVICTION SHOULD STAND.  FOR THE OVERWHELMING EVIDENCE IN THIS CASE,
EVEN WHEN THE RIFLE AND RELATED TESTIMONY ARE EXCLUDED, AMPLY
DEMONSTRATES PETITIONER'S GUILT.  UNFORTUNATELY, TO SHOW THIS, IT IS
NECESSARY TO GO INTO THE SORDID FACTS OF THE CASE.  THE VICTIMS WERE A
YOUNG MAN AND HIS GIRL FRIEND.  AT TRIAL BOTH TESTIFIED IN DETAIL TO
THE FOLLOWING:  THEY WERE PARKED SHORTLY AFTER DUSK ON A COUNTRY ROAD
NOT FAR FROM WHERE THE PETITIONER BUMPER LIVED.  BUMPER APPROACHED THE
CAR, STUCK A RIFLE BARREL UP TO THE WINDOW AND ORDERED THE GIRL TO GET
OUT OF THE CAR, INDICATING THAT IF SHE REFUSED HE WOULD SHOOT HER. 
BOTH GOT OUT OF THE CAR AND BUMPER ORDERED THE GIRL TO UNDRESS, STATING
THAT "I WANT A WHITE GIRL'S P-- ."  WHEN THE GIRL ADAMANTLY REFUSED,
BUMPER POINTED THE RIFLE AT THE YOUNG MAN, AND THE GIRL, UNDERSTANDING
THAT SHE MUST SUBMIT OR HER BOY FRIEND WOULD BE KILLED, FOLLOWED
BUMPER'S ORDERS.  BUMPER THEN FORCED THE YOUNG MAN INTO THE REAR SEAT
OF THE CAR, REQUIRING HIM TO STAY DOWN ON THE FLOOR, WHILE BUMPER RAPED
THE GIRL ON THE BACK OF THE CAR.  A SHORT TIME AFTER THIS, BUMPER
FORCED THE COUPLE TO DRIVE TO ANOTHER SPOT.  HERE HE MADE THEM GET OUT
OF THE CAR AND WALK DOWN A DIRT ROAD INTO SOME BUSHES.  AT THIS TIME
BUMPER TOLD THE COUPLE HE WAS GOING TO KILL THEM, AND WHEN THEY PLEADED
WITH HIM TO LET THEM GO, HE REPLIED, "I CAN'T DO IT; YOU WILL GO TO THE
COPS."  THE COUPLE THEN SUGGESTED THAT IF BUMPER WOULD TIE THEM UP AND
BLINDFOLD THEM THAT HE COULD GET AWAY WITH NO PROBLEM.  THIS BUMPER
DID, TYING EACH TO A SEPARATE TREE.  BUT HE DID NOT LEAVE.  INSTEAD HE
RAPED THE GIRL AGAIN WHILE SHE WAS TIED TO THE TREE.  AFTER THIS,
BUMPER WENT OVER TO THE YOUNG MAN AND FELT HIS CHEST, ASKING HIM WHERE
HIS HEART WAS AND IF HE WAS SCARED.  HE THEN COOLY PROCEEDED TO SHOOT
THE YOUNG MAN WHERE HE THOUGHT HIS HEART WAS.  THE GIRL, TIED TO THE
TREE AND BLINDFOLDED, HEARD THE SHOT, AND A MOMENT LATER HERSELF WAS
SHOT THROUGH THE LEFT BREAST CLOSE TO HER HEART.  BUMPER THEN TOOK THE
CAR AND DROVE AWAY, OBVIOUSLY BELIEVING HE HAD KILLED THE YOUNG
COUPLE.  THEY WERE ABLE TO FREE THEMSELVES, HOWEVER, AND WITH MUCH
DIFFICULTY MADE THEIR WAY TO A NEARBY HOUSE WHERE THE OWNER GOT THEM TO
A HOSPITAL.  /8/  THE TIME DURING WHICH THE COUPLE WAS HELD CAPTIVE WAS
APPROXIMATELY AN HOUR AND A HALF.  DURING THAT TIME THEY CLEARLY GOT TO
KNOW WHO THEIR ASSAILANT WAS.  BOTH GOT A PLAIN VIEW OF BUMPER RIGHT AT
THE BEGINNING OF THEIR ORDEAL WHEN THEY OPENED THE CAR DOORS AND SAW
HIS FACE IN THE LIGHT COMING FROM THE INSIDE OF THE CAR.  MOREOVER, THE
UNDISPUTED EVIDENCE IN THE RECORD SHOWS THAT THE NIGHT OF THE ATTACK
WAS A BRIGHT MOONLIT NIGHT.  BOTH TESTIFIED POSITIVELY AT TRIAL THAT IT
WAS BUMPER.  /9/  ALSO THERE WAS SUBSTANTIAL CORROBORATING EVIDENCE
OUTSIDE OF THAT RELATING TO THE RIFLE.  HERE WE HAVE THE CLEAR AND
CONVINCING TESTIMONY OF THE TWO VICTIMS, WHOSE CHARACTERS WERE IN NO
WAY IMPEACHED OR CHALLENGED.  THE ONLY WITNESSES AT THE TRIAL WERE
STATE WITNESSES (THE TWO VICTIMS PLUS MEDICAL AND POLICE TESTIMONY),
AND NONE OF THEIR TESTIMONY WAS REFUTED OR DENIED IN ANY WAY.  THUS,
THIS IS A CASE WHERE EVERY WORD OF EVIDENCE INTRODUCED AT TRIAL POINTED
TO GUILT, AND THERE WAS NO CHALLENGE TO THE TRUTHFULNESS OF THE STATE'S
EVIDENCE, NOR TO THE CHARACTER OF ANY OF ITS WITNESSES.  YET EVEN WITH
ALL THIS, THE COURT PERSISTS IN REVERSING THE CASE, THUS REQUIRING THE
STATE TO HOLD A NEW TRIAL IF IT WISHES TO PUNISH BUMPER FOR HIS
CRIMES. 

WHEN IT IS CLEAR BEYOND ALL SHAWDOW OF A DOUBT, AS HERE, THAT A
DEFENDANT COMMITTED THE CRIMES CHARGED, I DO NOT BELIEVE THAT THIS
COURT SHOULD ENFORCE ON THE STATES A "PER SE" RULE AUTOMATICALLY
REQUIRING A NEW TRIAL IN EVERY CASE WHERE THIS COURT CONCLUDES THAT
SOME PART OF THE EVIDENCE WAS OBTAINED BY AN UNREASONABLE SEARCH AND
SEIZURE.  THE PRIMARY REASON THE "ESCLUSIONARY RULE" WAS ADOPTED BY
THIS COURT WAS TO DETER UNREASONABLE SEARCHES AND SEIZURES IN VIOLATION
OF THE FOURTH AMENDMENT.  MAPP V. OHIO, 367 U.S. 643.  BUT SEE MY
CONCURRING OPINION AT 661-666.  I BELIEVE THAT THE DETERRENCE DESIRED
BY SOME CAN BE SERVED ADEQUATELY WITHOUT BLIND ADHERENCE TO A
MECHANICAL FORMULA THAT REQUIRES AUTOMATIC REVERSAL IN EVERY CASE WHERE
THE EXCLUSIONARY RULE IS VIOLATED.  WHILE LITTLE IS KNOWN ABOUT THE
EFFECT THE EXCLUSIONARY RULE REALLY HAS ON ACTUAL POLICE PRACTICES, I
THINK IT IS A FAIR ASSUMPTION THAT REFUSAL TO REVERSE A CONVICTION OF A
DEFENDANT, BECAUSE OF THE ADMISSION OF ILLEGALLY SEIZED EVIDENCE, WHERE
OTHER EVIDENCE CONCLUSIVELY DEMONSTRATES HIS GUILT, IS NOT GOING TO
LESSEN POLICE SENSITIVITY TO THE EXCLUSIONARY RULE, THEREBY REDUCING
ITS DETERRENT EFFECT.  OBVIOUSLY AT THE TIME A SEARCH IS CARRIED OUT
THE POLICE ARE NOT GOING TO KNOW WHETHER THE EVIDENCE THEY HOPE TO
OBTAIN IS GOING TO BE NECESSARY FOR THE PROSECUTION'S CASE, AND, OF
COURSE, IF THEY KNOW IT WILL NOT BE NECESSARY, NO SEARCH IS NEEDED. 
THUS THE ONLY EFFECT OF NOT AUTOMATICALLY REVERSING ALL CASES IN WHICH
THERE HAS BEEN A VIOLATION OF THE EXCLUSIONARY RULE WILL BE TO ALLOW
STATE CONVICTIONS OF OBVIOUSLY GUILTY DEFENDANTS TO STAND.  AND THEY
SHOULD STAND. 

   IV. 

IN THIS CASE, AS I HAVE SHOW, THE EVIDENCE OF THE TWO VICTIMS POINTS
POSITIVELY TO GUILT WITHOUT ANY DOUBT.  WHEN THERE IS ADDED TO THIS THE
FACT THAT THE RIFLE, FROM WHICH CAME THE BULLETS WHICH WENT INTO THE
BODIES OF THE TWO VICTIMS, WAS FOUND WHERE BUMPER LIVED, WHICH WAS NOT
FAR FROM THE SCENE OF THE ASSAULT, THIS MAKES, AS THE NORTH CAROLINA
SUPREME COURT POINTED OUT, ASSURANCE DOUBLY SURE.  WHETHER ONE VIEWS
THE EVIDENCE OF GUILT WITH OR WITHOUT THE RIFLE, THE CONCLUSION IS
INESCAPABLE THAT THIS DEFENDANT COMMITTED THE CRIMES FOR WHICH THE JURY
CONVICTED HIM.  IN THESE CIRCUMSTANCES NO STATE SHOULD BE FORCED TO
GIVE A NEW TRIAL; JUSTICE DOES NOT REQUIRE IT.  /10/ 

/1/  SEE ANTE, AT 522, N. 21. 

/2/  SEE ANTE, AT 520, N. 17. 

/3/  SEE NC. GEN. STAT. SEC. 14-21.  THE COURT IMPOSED ADDITIONAL
SENTENCES OF 10 YEARS' IMPRISONMENT, TO RUN CONSECUTIVELY, ON THE TWO
FELONIOUS ASSAULT CHARGES. 

/4/  MRS. LEATH'S VOLUNTARY CONSENT WAS SUFFICIENT TO VALIDATE THE
SEARCH SINCE SHE OWNED THE HOUSE WHICH WAS SEARCHED AND THE RIFLE THAT
WAS TAKEN.  IT SHOULD ALSO BE NOTED THAT THE RIFLE WAS NOT FOUND IN
PETITIONER'S PRIVATE ROOM, NOR IN ANY PART OF THE HOUSE ASSIGNED TO
HIM, BUT IN THE KITCHEN BEHIND THE DOOR. 

/5/  MRS. LEATH OWNED THE HOUSE IN WHICH SHE WAS LIVING AND
THROUGHOUT HER QUESTIONING REPEATEDLY REFERRED TO "MY HOUSE." 

/6/  SEE COMMONWEALTH V. TUCKER, 189 MASS. 457, 469, 76 N.E. 127,
131.  IN THIS CASE A MOTHER CONSENTED FOR OFFICERS WHO WERE LOOKING FOR
BROKEN PIECES OF A KNIFE USED IN A MURDER TO SEARCH HER HOME.  THE
COURT FOUND THAT OFFICERS WENT "TO THE DOOR OF THE HOUSE WHERE TUCKER
RESIDED, AND STATED TO HIS MOHTER, AT THE OUTSIDE DOOR OF THE HOUSE,
THAT THEY HAD THIS SEARCH WARRANT TO SEARCH FOR THE ARTICLES NAMED
THEREIN . . . THAT SHE . . . INVITED THE OFFICERS TO MAKE ALL THE
SEARCH THEY DESIRED, SAYING THAT SHE KNEW HER SON TO BE INNOCENT; AND
THEREUPON THE OFFICERS MADE SEARCH, NOT UPON THE WARRANT, BUT IN
CONSEQUENCE OF HER INVITATION . . . . "  THE KNIFE BLADE WAS ADMITTED
AGAINST THE CONTENTION THAT IT WAS BARRED BY THE FOURTH AND FOURTEENTH
AMENDMENTS. 

/7/  THE FINDING OF THE COURT WAS AS FOLLOWS:  "THE COURT FINDS THAT
FROM THE EVIDENCE OF MRS. HATTIE LEATH THAT IT IS OF A CLEAR AND
CONVINCING NATURE THAT SHE, THE SAID MRS. HATTIE LEATH, VOLUNTARILY
CONSENTED TO THE SEARCH OF HER PREMISES, AS IS MORE PARTICULARLY SET
FORTH IN HER EVIDENCE, AND THAT THAT CONSENT WAS SPECIFICALLY GIVEN AND
IS NOT THE RESULT OF COERCION FROM THE OFFICERS." 

/8/  IT WAS ON THESE FACTS AND THIS TESTIMONY, IT MUST BE
REMEMBERED, THAT THIS JURY, SELECTED IN THE WAY WITHERSPOON HOLDS IS
DESIGNED TO PRODUCE A "HANGING" JURY, RECOMMENDED A LIFE SENTENCE FOR
PETITIONER. 

/9/  THE COURT'S OPINION ATTEMPTS TO CONVEY THE IMPRESSION THAT THE
VICTIMS WERE NOT SURE OF THEIR ASSAILANT'S IDENTIFICATION BECAUSE OF AN
ALLEGED MISTAKE DURING A POLICE LINEUP.  SEE MAJORITY OPINION, N. 16. 
THIS COMPLETELY OVERLOOKS THE FACT, HOWEVER, THAT BEFORE BUMPER WAS
ARRESTED, AND BEFORE THE VICTIMS HAD ANY OF THEIR ATTACKER'S NAME OR
WHERE HE WAS FROM, THE GIRL, WHILE STILL IN THE HOSPITAL, IDENTIFIED
BUMPER'S PICTURE FROM A NUMBER OF OTHERS.  THE YOUNG MAN ALSO HAD
IDENTIFIED BUMPER'S PICTURE DAYS BEFORE THE LINEUP WAS HELD.  AFTER THE
GIRL WENT THROUGH THE LINEUP THE FIRST TIME SHE CONFESSED THAT SHE WAS
TOO SCARED TO LOOK AT THE MEN AND THAT SHE HAD MADE NO REAL ATTEMPT AT
IDENTIFICATION.  AND IT SHOULD NOT BE FORGOTTEN THAT SHE TESTIFIED
POSITIVELY UNDER OATH AT TRIAL THAT "IN MY OWN MIND I AM CERTAIN (THAT
BUMPTER WAS MY ASSAILANT), AND NOTHING COULD REALLY DISSUADE ME FROM
IT.  I HAVEN'T MADE UP MY MIND; I KNOW." 

/10/  28 U.S.C. 2106 PROVIDES:  "THE SUPREME COURT OR ANY OTHER
COURT OF APPELLATE JURISDICTION MAY AFFIRM, MODIFY, VACATE, SET ASIDE
OR REVERSE ANY JUDGMENT, DECREE, OR ORDER OF A COURT LAWFULLY BROUGHT
BEFORE IT FOR REVIEW, AND MAY REMAND THE CAUSE AND DIRECT THE ENTRY OF
SUCH APPROPRIATE JUDGMENT, DECREE, OR ORDER, OR REQUIRE SUCH FURTHER
PROCEEDINGS TO BE HAD AS MAY BE JUST UNDER THE CIRCUMSTANCES." 

MR. JUSTICE WHITE, DISSENTING. 

WHEN "CONSENT" TO A SEARCH IS GIVEN AFTER THE OCCUPANT HAS BEEN TOLD
BY POLICE OFFICERS THAT THEY HAVE A WARRANT FOR THE SEARCH, IT SEEMS
REASONABLE TO ME FOR FOURTH AMENDMENT PURPOSES TO VIEW THE CONSENT AS
CONDITIONED ON THERE BEING A VALID WARRANT, ABSENT CLEAR PROOF THAT THE
CONSENT WAS ACTUALLY UNCONDITIONAL.  THE EVIDENCE IN THIS RECORD DOES
NOT SHOW UNCONDITIONAL CONSENT WITH SUFFICIENT CLARITY, AND PERHAPS
THIS WOULD BE THE RESULT IN MOST CASES.  BUT THIS DOES NOT MEAN THAT
EVERY SEARCH FOLLOWING CONDITIONAL CONSENT IS INVALID.  IF UPON A
MOTION TO SUPPRESS OR UPON AN OBJECTION TO EVIDENCE OFFERED AT THE
TRIAL, THE STATE PRODUCES A VALID WARRANT FOR THE SEARCH, THERE IS NO
GOOD REASON TO EXCLUDE THE EVIDENCE SIMPLY BECAUSE POLICE AT THE TIME
OF THE SEARCH RELIED ON THE CONSENT AND NEITHER SERVED NOR RETURNED THE
WARRANT.  IN THE CASE BEFORE US THE STATE REPRESENTED IN THIS COURT
THAT THERE WAS A WARRANT FOR THE CHALLENGED SEARCH.  UNLIKE THE COURT
AND MR. JUSTICE HARLAN, I WOULD NOT BRUSH THIS MATTER ASIDE.  SINE THE
EXISTENCE AND VALIDITY OF THE WARRANT HAVE NOT BEEN DETERMINED IN THE
STATE COURTS, THE CASE IS NOT RIPE FOR REVERSAL OR AFFIRMANCE.  I WOULD
THEREFORE NOT REVERSE, BUT VACATE, THIS CONVICTION, RETURNING THE CASE
TO THE STATE COURTS FOR A DETERMINATION OF THE VALIDITY OF THE
WARRANT.  IF BECAUSE OF THE ABSENCE OF PROBABLE CAUSE, OR FOR SOME
OTHER REASON, THE WARRANT WOULD NOT HAVE BEEN A PROPER PREDICATE FOR
THE SEARCH, MAPP V. OHIO, 367 U.S. 643 (1961), WOULD REQUIRE REVERSAL
OF THE CONVICTION UNLESS IT IS SAVED UNDER THE HARMLESS-ERROR RULE OF
CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1967).  /1/ 

/1/  OF COURSE, IF IT WAS DETERMINED THAT THE GRANDMOTHER'S CONSENT
WAS NOT GOOD AGAINST PETITIONER, WHO HAD STANDING TO RAISE THE VALIDITY
OF THE SEARCH, IT WOULD BE UNNECESSARY TO DEAL WITH THE ISSUES WHICH
HAVE BEEN ARGUED AND DETERMINED IN THIS CASE. 

NORMAN B. SMITH ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER,
PRO HAC VICE. 

HARRY W. MCGALLIARD, DEPUTY ATTORNEY GENERAL OF NORTH CAROLINA,
ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS T. W.
BRUTON, ATTORNEY GENERAL. 

BRIEFS OF AMICI CURIAE WERE FILED BY JACK GREENBERG, JAMES M. NABRIT
III, MICHAEL MELTSNER, LEROY D. CLARK, NORMAN C. AMAKER, AND CHARLES S.
RALSTON FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., ET AL.,
AND BY F. LEE BAILEY, PRO SE. WY F. LEE BAILEY, PRO SE.
..END :











PICKERING V. BOARD OF EDUCATION, 391 U.S. 563 


       PICKERING V. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL

           DISTRICT 205, WILL COUNTY. 

        APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

        NO. 510.  ARGUED MARCH 27, 1968.-- DECIDED JUNE 3, 1968. 


APPELLEE, BOARD OF EDUCATION, DISMISSED APPELLANT, A TEACHER, FOR
WRITING AND PUBLISHING IN A NEWSPAPER A LETTER CRITICIZING THE BOARD'S
ALLOCATION OF SCHOOL FUNDS BETWEEN EDUCATION AND ATHLETIC PROGRAMS AND
THE BOARD'S AND SUPERINTENDENT'S METHODS OF INFORMING, OR PREVENTING
THE INFORMING OF, THE SCHOOL DISTRICT'S TAXPAYERS OF THE REAL REASONS
WHY ADDITIONAL TAX REVENUES WERE BEING SOUGHT FOR THE SCHOOLS.  AT A
HEARING THE BOARD CHARGED THAT NUMEROUS STATEMENTS IN THE LETTER WERE
FALSE AND THAT THE PUBLICATION OF THE STATEMENTS UNJUSTIFIABLY IMPUGNED
THE BOARD AND SCHOOL ADMINISTRATION.  THE BOARD FOUND ALL THE
STATEMENTS FALSE AS CHARGED AND CONCLUDED THAT PUBLICATION OF THE
LETTER WAS "DETRIMENTAL TO THE EFFICIENT OPERATION AND ADMINISTRATION
OF THE SCHOOLS OF THE DISTRICT" AND THAT "THE INTERESTS OF THE SCHOOL
REQUIRED) (APPELLANT'S DISMISSAL)" UNDER THE APPLICABLE STATUTE.  THERE
WAS NOT EVIDENCE AT THE HEARING AS TO THE EFFECT OF APPELLANT'S
STATEMENTS ON THE COMMUNITY OR SCHOOL ADMINISTRATION.  THE ILLINOIS
COURTS, REVIEWING THE PROCEEDINGS SOLELY TO DETERMINE WHETHER THE
BOARD'S FINDINGS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE AND WHETHER THE
BOARD COULD REASONABLY CONCLUDE THAT THE PUBLICATION WAS "DETRIMENTAL
TO THE BEST INTERESTS OF THE SCHOOLS," UPHELD THE DISMISSAL, REJECTING
APPELLANT'S CLAIM THAT THE LETTER WAS PROTECTED BY THE FIRST AND
FOURTEENTH AMENDMENTS, ON THE GROUND THAT AS A TEACHER HE HAD TO
REFRAIN FROM MAKING STATEMENTS ABOUT THE SCHOOLS' OPERATION "WHICH IN
THE ABSENCE OF SUCH POSITION HE WOULD HAVE AN UNDOUBTED RIGHT TO ENGAGE
IN."  HELD: 

1.  "(THE THEORY THAT PUBLIC EMPLOYMENT WHICH MAY BE DENIED
ALTOGETHER MAY BE SUBJECTED TO ANY CONDITIONS, REGARDLESS OF HOW
UNREASONABLE, HAS BEEN UNIFORMLY REJECTED."  KEYISHIAN V. BOARD OF
REGENTS, 385 U.S. 589, 605-606 (1967).  THE TEACHER'S INTEREST AS A
CITIZEN IN MAKING PUBLIC COMMENT MUST BE BALANCED AGAINST THE STATE'S
INTEREST IN PROMOTING THE EFFICIENCY OF ITS EMPLOYEES' PUBLIC
SERVICES.  P. 568. 

2.  THOSE STATEMENTS OF APPELLANT'S WHICH WERE SUBSTANTIALLY CORRECT
REGARDED MATTERS OF PUBLIC CONCERN AND PRESENTED NO QUESTIONS OF
FACULTY DISCIPLINE OR HARMONY; HENCE THOSE STATEMENTS AFFORDED NO
PROPER BASIS FOR THE BOARD'S ACTION IN DISMISSING APPELLANT.  PP. 569
570. 

3.  APPELLANT'S STATEMENTS WHICH WERE FALSE LIKEWISE CONCERNED
ISSUES THEN CURRENTLY THE SUBJECT OF PUBLIC ATTENTION AND WERE NEITHER
SHOWN NOR COULD BE PRESUMED TO HAVE INTERFERED WITH APPELLANT'S
PERFORMANCE OF HIS TEACHING DUTIES OR THE SCHOOLS' GENERAL OPERATION. 
THEY WERE THUS ENTITLED TO THE SAME PROTECTION AS IF THEY HAD BEEN MADE
BY A MEMBER OF THE GENERAL PUBLIC, AND, ABSENT PROOF THAT THOSE FALSE
STATEMENTS WERE KNOWINGLY OR RECKLESSLY MADE, DID NOT JUSTIFY THE BOARD
IN DISMISSING APPELLANT FROM PUBLIC EMPLOYMENT.  NEW YORK TIMES CO. V.
SULLIVAN, 367 U.S. 254 (1964).  PP. 570-575. 

36 ILL.2D 568, 225 N.E.2D 1, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

APPELLANT MARVIN L. PICKERING, A TEACHER IN TOWNSHIP HIGH SCHOOL
DISTRICT 205, WILL COUNTY, ILLINOIS, WAS DISMISSED FROM HIS POSITION BY
THE APPELLEE BOARD OF EDUCATION FOR SENDING A LETTER TO A LOCAL
NEWSPAPER IN CONNECTION WITH A RECENTLY PROPOSED TAX INCREASE THAT WAS
CRITICAL OF THE WAY IN WHICH THE BOARD AND THE DISTRICT SUPERINTENDENT
OF SCHOOLS HAD HANDLED PAST PROPOSALS TO RAISE NEW REVENUE FOR THE
SCHOOLS.  APPELLANT'S DISMISSAL RESULTED FROM A DETERMINATION BY THE
BOARD, AFTER A FULL HEARING, THAT THE PUBLICATION OF THE LETTER WAS
"DETRIMENTAL TO THE EFFICIENT OPERATION AND ADMINISTRATION OF THE
SCHOOLS OF THE DISTRICT" AND HENCE, UNDER THE RELEVANT ILLINOIS
STATUTE, ILL. REV. STAT., C. 122, SEC. 10-22.4 (1963), THAT "INTERESTS
OF THE SCHOOL REQUIRED) (HIS DISMISSAL)." 

APPELLANT'S CLAIM THAT HIS WRITING OF THE LETTER WAS PROTECTED BY
THE FIRST AND FOURTEENTH AMENDMENTS WAS REJECTED.  APPELLANT THEN
SOUGHT REVIEW OF THE BOARD'S ACTION IN THE CIRCUIT COURT OF WILL
COUNTY, WHICH AFFIRMED HIS DISMISSAL ON THE GROUND THAT THE
DETERMINATION THAT APPELLANT'S LETTER WAS DETRIMENTAL TO THE INTERESTS
OF THE SCHOOL SYSTEM WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND THAT THE
INTERESTS OF THE SCHOOLS OVERRODE APPELLANT'S FIRST AMENDMENT RIGHTS. 
ON APPEAL, THE SUPREME COURT OF ILLINOIS, TWO JUSTICES DISSENTING,
AFFIRMED THE JUDGMENT OF THE CIRCUIT COURT.  36 ILL.2D 568, 225 N.E.2D
1 (1967).  WE NOTED PROBABLE JURISDICTION OF APPELLANT'S CLAIM THAT THE
ILLINOIS STATUTE PERMITTING HIS DISMISSAL ON THE FACTS OF THIS CASE WAS
UNCONSTITUTIONAL AS APPLIED UNDER THE FIRST AND FOURTEENTH AMENDMENTS. 
/1/  389 U.S. 925 (1967).  FOR THE REASONS DETAILED BELOW WE AGREE THAT
APPELLANT'S RIGHTS TO FREEDOM OF SPEECH WERE VIOLATED AND WE REVERSE. 

        I. 

IN FEBRUARY OF 1961 THE APPELLEE BOARD OF EDUCATION ASKED THE VOTERS
OF THE SCHOOL DISTRICT TO APPROVE A BOND ISSUE TO RAISE $4,875,000 TO
ERECT TWO NEW SCHOOLS.  THE PROPOSAL WAS DEFEATED.  THEN, IN DECEMBER
OF 1961, THE BOARD SUBMITTED ANOTHER BOND PROPOSAL TO THE VOTERS WHICH
CALLED FOR THE RAISING OF $5,500,000 TO BUILD TWO NEW SCHOOLS.  THIS
SECOND PROPOSAL PASSED AND THE SCHOOLS WERE BUILT WITH THE MONEY RAISED
BY THE BOND SALES.  IN MAY OF 1964 A PROPOSED INCREASE IN THE TAX RATE
TO BE USED FOR EDUCATIONAL PURPOSES WAS SUBMITTED TO THE VOTERS BY THE
BOARD AND WAS DEFEATED.  FINALLY, ON SEPTEMBER 19, 1964, A SECOND
PROPOSAL TO INCREASE THE TAX RATE WAS SUBMITTED BY THE BOARD AND WAS
LIKEWISE DEFEATED.  IT WAS IN CONNECTION WITH THIS LAST PROPOSAL OF THE
SCHOOL BOARD THAT APPELLANT WROTE THE LETTER TO THE EDITOR (WHICH WE
REPRODUCE IN AN APPENDIX TO THIS OPINION) THAT RESULTED IN HIS
DISMISSAL. 

PRIOR TO THE VOTE ON THE SECOND TAX INCREASE PROPOSAL A VARIETY OF
ARTICLES ATTRIBUTED TO THE DISTRICT 205 TEACHERS' ORGANIZATION APPEARED
IN THE LOCAL PAPER.  THESE ARTICLES URGED PASSAGE OF THE TAX INCREASE
AND STATED THAT FAILURE TO PASS THE INCREASE WOULD RESULT IN A DECLINE
IN THE QUALITY OF EDUCATION AFFORDED CHILDREN IN THE DISTRICT'S
SCHOOLS.  A LETTER FROM THE SUPERINTENDENT OF SCHOOLS MAKING THE SAME
POINT WAS PUBLISHED IN THE PAPER TWO DAYS BEFORE THE ELECTION AND
SUBMITTED TO THE VOTERS IN MIMEOGRAPHED FORM THE FOLLOWING DAY.  IT WAS
IN RESPONSE TO THE FOREGOING MATERIAL, TOGETHER WITH THE FAILURE OF THE
TAX INCREASE TO PASS, THAT APPELLANT SUBMITTED THE LETTER IN QUESTION
TO THE EDITOR OF THE LOCAL PAPER. 

THE LETTER CONSTITUTED, BASICALLY, AN ATTACK ON THE SCHOOL BOARD'S
HANDLING OF THE 1961 BOND ISSUE PROPOSALS AND ITS SUBSEQUENT ALLOCATION
OF FINANCIAL RESOURCES BETWEEN THE SCHOOLS' EDUCATIONAL AND ATHLETIC
PROGRAMS.  IT ALSO CHARGED THE SUPERINTENDENT OF SCHOOLS WITH
ATTEMPTING TO PREVENT TEACHERS IN THE DISTRICT FROM OPPOSING OR
CRITICIZING THE PROPOSED BOND ISSUE. 

THE BOARD DISMISSED PICKERING FOR WRITING AND PUBLISHING THE
LETTER.  PURSUANT TO ILLINOIS LAW, THE BOARD WAS THEN REQUIRED TO HOLD
A HEARING ON THE DISMISSAL.  AT THE HEARING THE BOARD CHARGED THAT
NUMEROUS STATEMENTS IN THE LETTER WERE FALSE AND THAT THE PUBLICATION
OF THE STATEMENTS UNJUSTIFIABLY IMPUGNED THE "MOTIVES, HONESTY,
INTEGRITY, TRUTHFULNESS, RESPONSIBILITY AND COMPETENCE" OF BOTH THE
BOARD AND THE SCHOOL ADMINISTRATION.  THE BOARD ALSO CHARGED THAT THE
FALSE STATEMENTS DAMAGED THE PROFESSIONAL REPUTATIONS OF ITS MEMBERS
AND OF THE SCHOOL ADMINISTRATORS, WOULD BE DISRUPTIVE OF FACULTY
DISCIPLINE, AND WOULD TEND TO FOMENT "CONTROVERSY, CONFLICT AND
DISSENSION" AMONG TEACHERS, ADMINISTRATORS, THE BOARD OF EDUCATION, AND
THE RESIDENTS OF THE DISTRICT.  TESTIMONY WAS INTRODUCED FROM A VARIETY
OF WITNESSES ON THE TRUTH OR FALSITY OF THE PARTICULAR STATEMENTS IN
THE LETTER WITH WHICH THE BOARD TOOK ISSUE.  THE BOARD FOUND THE
STATEMENTS TO BE FALSE AS CHARGED.  NO EVIDENCE WAS INTRODUCED AT ANY
POINT IN THE PROCEEDINGS AS TO THE EFFECT OF THE PUBLICATION OF THE
LETTER ON THE COMMUNITY AS A WHOLE OR ON THE ADMINISTRATION OF THE
SCHOOL SYSTEM IN PARTICULAR, AND NO SPECIFIC FINDINGS ALONG THESE LINES
WERE MADE. 

THE ILLINOIS COURTS REVIEWED THE PROCEEDINGS SOLELY TO DETERMINE
WHETHER THE BOARD'S FINDINGS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE AND
WHETHER, ON THE FACTS AS FOUND, THE BOARD COULD REASONABLY CONCLUDE
THAT APPELLANT'S PUBLICATION OF THE LETTER WAS "DETRIMENTAL TO THE BEST
INTERESTS OF THE SCHOOLS."  PICKERING'S CLAIM THAT HIS LETTER WAS
PROTECTED BY THE FIRST AMENDMENT WAS REJECTED ON THE GROUND THAT HIS
ACCEPTANCE OF A TEACHING POSITION IN THE PUBLIC SCHOOLS OBLIGED HIM TO
REFRAIN FROM MAKING STATEMENTS ABOUT THE OPERATION OF THE SCHOOLS
"WHICH IN THE ABSENCE OF SUCH POSITION HE WOULD HAVE AN UNDOUBTED RIGHT
TO ENGAGE IN."  IT IS NOT ALTOGETHER CLEAR WHETHER THE ILLINOIS SUPREME
COURT HELD THAT THE FIRST AMENDMENT HAD NO APPLICABILITY TO APPELLANT'S
DISMISSAL FOR WRITING THE LETTER IN QUESTION OR WHETHER IT DETERMINED
THAT THE PARTICULAR STATEMENTS MADE IN THE LETTER WERE NOT ENTITLED TO
FIRST AMENDMENT PROTECTION.  IN ANY EVENT, IT CLEARLY REJECTED
PICKERING'S CLAIM THAT, ON THE FACTS OF THIS CASE, HE COULD NOT
CONSTITUTIONALLY BE DISMISSED FROM HIS TEACHING POSITION. 

        II. 

TO THE EXTENT THAT THE ILLINOIS SUPREME COURT'S OPINION MAY BE READ
TO SUGGEST THAT TEACHERS MAY CONSTITUTIONALLY BE COMPELLED TO
RELINQUISH THE FIRST AMENDMENT RIGHTS THEY WOULD OTHERWISE ENJOY AS
CITIZENS TO COMMENT ON MATTERS OF PUBLIC INTEREST IN CONNECTION WITH
THE OPERATION OF THE PUBLIC SCHOOLS IN WHICH THEY WORK, IT PROCEEDS ON
A PREMISE THAT HAS BEEN UNEQUIVOCALLY REJECTED IN NUMEROUS PRIOR
DECISIONS OF THIS COURT.  E.G., WIEMAN V. UPDEGRAFF, 344 U.S. 183
(1952); SHELTON V. TUCKER, 364 U.S. 479 (1960); KEYISHIAN V. BOARD OF
REGENTS, 385 U.S. 589 (1967).  "(THE THEORY THAT PUBLIC EMPLOYMENT
WHICH MAY BE DENIED ALTOGETHER MAY BE SUBJECTED TO ANY CONDITIONS,
REGARDLESS OF HOW UNREASONABLE, HAS BEEN UNIFORMLY REJECTED." 
KEYISHIAN V. BOARD OF REGENTS, SUPRA, AT 605-606.  AT THE SAME TIME IT
CANNOT BE GAINSAID THAT THE STATE HAS INTERESTS AS AN EMPLOYER IN
REGULATING THE SPEECH OF ITS EMPLOYEES THAT DIFFER SIGNIFICANTLY FROM
THOSE IT POSSESSES IN CONNECTION WITH REGULATION OF THE SPEECH OF THE
CITIZENRY IN GENERAL.  THE PROBLEM IN ANY CASE IS TO ARRIVE AT A
BALANCE BETWEEN THE INTERESTS OF THE TEACHER, AS A CITIZEN, IN
COMMENTING UPON MATTERS OF PUBLIC CONCERN AND THE INTEREST OF THE
STATE, AS AN EMPLOYER, IN PROMOTING THE EFFICIENCY OF THE PUBLIC
SERVICES IT PERFORMS THROUGH ITS EMPLOYEES. 

III. 

THE BOARD CONTENDS THAT "THE TEACHER BY VIRTUE OF HIS PUBLIC
EMPLOYMENT HAS A DUTY OF LOYALTY TO SUPPORT HIS SUPERIORS IN ATTAINING
THE GENERALLY ACCEPTED GOALS OF EDUCATION AND THAT, IF HE MUST SPEAK
OUT PUBLICLY, HE SHOULD DO SO FACTUALLY AND ACCURATELY, COMMENSURATE
WITH HIS EDUCATION AND EXPERIENCE."  APPELLANT, ON THE OTHER HAND,
ARGUES THAT THE TEST APPLICABLE TO DEFAMATORY STATEMENTS DIRECTED
AGAINST PUBLIC OFFICIALS BY PERSONS HAVING NO OCCUPATIONAL RELATIONSHIP
WITH THEM, NAMELY, THAT STATEMENTS TO BE LEGALLY ACTIONABLE MUST BE
MADE "WITH KNOWLEDGE THAT (THEY WERE) . . . FALSE OR WITH RECKLESS
DISREGARD OF WHETHER (THEY WERE) . . . FALSE OR NOT," NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S. 254, 280 (1964), SHOULD ALSO BE APPLIED TO
PUBLIC STATEMENTS MADE BY TEACHERS.  BECAUSE OF THE ENORMOUS VARIETY OF
FACT SITUATIONS IN WHICH CRITICAL STATEMENTS BY TEACHERS AND OTHER
PUBLIC EMPLOYEES MAY BE THOUGHT BY THEIR SUPERIORS, AGAINST WHOM THE
STATEMENTS ARE DIRECTED, TO FURNISH GROUNDS FOR DISMISSAL, WE DO NOT
DEEM IT EITHER APPROPRIATE OR FEASIBLE TO ATTEMPT TO LAY DOWN A GENERAL
STANDARD AGAINST WHICH ALL SUCH STATEMENTS MAY BE JUDGED.  HOWEVER, IN
THE COURSE OF EVALUATING THE CONFLICTING CLIAMS OF FIRST AMENDMENT
PROTECTION AND THE NEED FOR ORDERLY SCHOOL ADMINISTRATION IN THE
CONTEXT OF THIS CASE, WE SHALL INDICATE SOME OF THE GENERAL LINES ALONG
WHICH AN ANALYSIS OF THE CONTROLLING INTERESTS SHOULD RUN. 

AN EXAMINATION OF THE STATEMENTS IN APPELLANT'S LETTER OBJECTED TO
BY THE BOARD /2/  REVEALS THAT THEY, LIKE THE LETTER AS A WHOLE,
CONSIST ESSENTIALLY OF CRITICISM OF THE BOARD'S ALLOCATION OF SCHOOL
FUNDS BETWEEN EDUCATIONAL AND ATHLETIC PROGRAMS, AND OF BOTH THE
BOARD'S AND THE SUPERINTENDENT'S METHODS OF INFORMING, OR PREVENTING
THE INFORMING OF, THE DISTRICT'S TAXPAYERS OF THE REAL REASONS WHY
ADDITIONAL TAX REVENUES WERE BEING SOUGHT FOR THE SCHOOLS.  THE
STATEMENTS ARE IN NO WAY DIRECTED TOWARD ANY PERSON WITH WHOM APPELLANT
WOULD NORMALLY BE IN CONTACT IN THE COURSE OF HIS DAILY WORK AS A
TEACHER.  THUS NO QUESTION OF MAINTAINING EITHER DISCIPLINE BY
IMMEDIATE SUPERIORS OR HARMONY AMONG COWORKERS IS PRESENTED HERE. 
APPELLANT'S EMPLOYMENT RELATIONSHIPS WITH THE BOARD AND, TO A SOMEWHAT
LESSER EXTENT, WITH THE SUPERINTENDENT ARE NOT THE KIND OF CLOSE
WORKING RELATIONSHIPS FOR WHICH IT CAN PERSUASIVELY BE CLAIMED THAT
PERSONAL LOYALTY AND CONFIDENCE ARE NECESSARY TO THEIR PROPER
FUNCTIONING.  ACCORDINGLY, TO THE EXTENT THAT THE BOARD'S POSITION HERE
CAN BE TAKEN TO SUGGEST THAT EVEN COMMENTS ON MATTERS OF PUBLIC CONCERN
THAT ARE SUBSTANTIALLY CORRECT, SUCH AS STATEMENTS (1)-(4) OF
APPELLANT'S LETTER, SEE APPENDIX, INFRA, MAY FURNISH GROUNDS FOR
DISMISSAL IF THEY ARE SUFFICIENTLY CRITICAL IN TONE, WE UNEQUIVOCALLY
REJECT IT.  /3/ 

WE NEXT CONSIDER THE STATEMENTS IN APPELLANT'S LETTER WHICH WE AGREE
TO BE FALSE.  THE BOARD'S ORIGINAL CHARGES INCLUDED ALLEGATIONS THAT
THE PUBLICATION OF THE LETTER DAMAGED THE PROFESSIONAL REPUTATIONS OF
THE BOARD AND THE SUPERINTENDENT AND WOULD FOMENT CONTROVERSY AND
CONFLICT AMONG THE BOARD, TEACHERS, ADMINISTRATORS, AND THE RESIDENTS
OF THE DISTRICT.  HOWEVER, NO EVIDENCE TO SUPPORT THESE ALLEGATIONS WAS
INTRODUCED AT THE HEARING.  SO FAR AS THE RECORD REVEALS, PICKERING'S
LETTER WAS GREETED BY EVERYONE BUT ITS MAIN TARGET, THE BOARD, WITH
MASSIVE APATHY AND TOTAL DISBELIEF.  THE BOARD MUST, THEREFORE, HAVE
DECIDED, PERHAPS BY ANALOGY WITH THE LAW OF LIBEL, THAT THE STATEMENTS
WERE PER SE HARMFUL TO THE OPERATION OF THE SCHOOLS. 

HOWEVER, THE ONLY WAY IN WHICH THE BOARD COULD CONCLUDE, ABSENT ANY
EVIDENCE OF THE ACTUAL EFFECT OF THE LETTER, THAT THE STATEMENTS
CONTAINED THEREIN WERE PER SE DETRIMENTAL TO THE INTEREST OF THE
SCHOOLS WAS TO EQUATE THE BOARD MEMBERS'S OWN INTERESTS WITH THAT OF
THE SCHOOLS.  CERTAINLY AN ACCUSATION THAT TOO MUCH MONEY IS BEING
SPENT ON ATHLETICS BY THE ADMINISTRATORS OF THE SCHOOL SYSTEM (WHICH IS
PRECISELY THE IMPORT OF THAT PORTION OF APPELLANT'S LETTER CONTAINING
THE STATEMENTS THAT WE HAVE FOUND TO BE FALSE, SEE APPENDIX, INFRA)
CANNOT REASONABLY BE REGARDED AS PER SE DETRIMENTAL TO THE DISTRICT'S
SCHOOLS.  SUCH AN ACCUSATION REFLECTS RATHER A DIFFERENCE OF OPINION
BETWEEN PICKERING AND THE BOARD AS TO THE PREFERABLE MANNER OF
OPERATING THE SCHOOL SYSTEM, A DIFFERENCE OF OPINION THAT CLEARLY
CONCERNS AN ISSUE OF GENERAL PUBLIC INTEREST. 

IN ADDITION, THE FACT THAT PARTICULAR ILLUSTRATIONS OF THE BOARD'S
CLAIMED UNDESIRABLE EMPHASIS ON ATHLETIC PROGRAMS ARE FALSE WOULD NOT
NORMALLY HAVE ANY NECESSARY IMPACT ON THE ACTUAL OPERATION OF THE
SCHOOLS, BEYOND ITS TENDENCY TO ANGER THE BOARD.  FOR EXAMPLE,
PICKERING'S LETTER WAS WRITTEN AFTER THE DEFEAT AT THE POLLS OF THE
SECOND PROPOSED TAX INCREASE.  IT COULD, THEREFORE, HAVE HAD NO EFFECT
ON THE ABILITY OF THE SCHOOL DISTRICT TO RAISE NECESSARY REVENUE, SINCE
THERE WAS NO SHOWING THAT THERE WAS ANY PROPOSAL TO INCREASE TAXES
PENDING WHEN THE LETTER WAS WRITTEN. 

MORE IMPORTANTLY, THE QUESTION WHETHER A SCHOOL SYSTEM REQUIRES
ADDITIONAL FUNDS IS A MATTER OF LEGITIMATE PUBLIC CONCERN ON WHICH THE
JUDGMENT OF THE SCHOOL ADMINISTRATION, INCLUDING THE SCHOOL BOARD,
CANNOT, IN A SOCIETY THAT LEAVES SUCH QUESTIONS TO POPULAR VOTE, BE
TAKEN AS CONCLUSIVE.  ON SUCH A QUESTION FREE AND OPEN DEBATE IS VITAL
TO INFORMED DECISION-MAKING BY THE ELECTORATE.  TEACHERS ARE, AS A
CLASS, THE MEMBERS OF THE COMMUNITY MOST LIKELY TO HAVE INFORMED AND
DEFINITE OPINIONS AS TO HOW FUNDS ALLOTTED TO THE OPERATION OF THE
SCHOOLS SHOULD BE SPENT.  ACCORDINGLY, IT IS ESSENTIAL THAT THEY BE
ABLE TO SPEAK OUT FREELY ON SUCH QUESTIONS WITHOUT FEAR OF RETALIATORY
DISMISSAL.     IN ADDITION, THE AMOUNTS EXPENDED ON ATHLETICS WHICH
PICKERING REPORTED ERRONEOUSLY WERE MATTERS OF PUBLIC RECORD ON WHICH
HIS POSITION AS A TEACHER IN THE DISTRICT DID NOT QUALIFY HIM TO SPEAK
WITH ANY GREATER AURTHORITY THAN ANY OTHER TAXPAYER.  THE BOARD COULD
EASILY HAVE REBUTTED APPELLANT'S ERRORS BY PUBLISHING THE ACCURATE
FIGURES ITSELF, EITHER VIA A LETTER TO THE SAME NEWSPAPER OR
OTHERWISE.  WE ARE THUS NOT PRESENTED WITH A SITUATION IN WHICH A
TEACHER HAS CARELESSLY MADE FALSE STATEMENTS ABOUT MATTERS SO CLOSELY
RELATED TO THE DAY-TO-DAY OPERATIONS OF THE SCHOOLS THAT ANY HARMFUL
IMPACT ON THE PUBLIC WOULD BE DIFFICULT TO COUNTER BECAUSE OF THE
TEACHER'S PRESUMED GREATER ACCESS TO THE REAL FACTS.  ACCORDINGLY, WE
HAVE NO OCCASION TO CONSIDER AT THIS TIME WHETHER UNDER SUCH
CIRCUMSTANCES A SCHOOL BOARD COULD REASONABLY REQUIRE THAT A TEACHER
MAKE SUBSTANTIAL EFFORTS TO VERIFY THE ACCURACY OF HIS CHARGES BEFORE
PUBLISHING THEM.  /4/ 

WHAT WE DO HAVE BEFORE US IS A CASE IN WHICH A TEACHER HAS MADE
ERRONEOUS PUBLIC STATEMENTS UPON ISSUES THEN CURRENTLY THE SUBJECT OF
PUBLIC ATTENTION, WHICH ARE CRITICAL OF HIS ULTIMATE EMPLOYER BUT WHICH
ARE NEITHER SHOWN NOR CAN BE PRESUMED TO HAVE IN ANY WAY EITHER IMPEDED
THE TEACHER'S PROPER PERFORMANCE OF HIS DAILY DUTIES IN THE CLASSROOM
/5/  OR TO HAVE INTERFERED WITH THE REGULAR OPERATION OF THE SCHOOLS
GENERALLY.  IN THESE CIRCUMSTANCES WE CONCLUDE THAT THE INTEREST OF THE
SCHOOL ADMINISTRATION IN LIMITING TEACHERS' OPPORTUNITIES TO CONTRIBUTE
TO PUBLIC DEBATE IS NOT SIGNIFICANTLY GREATER THAN ITS INTEREST IN
LIMITING A SIMILAR CONTRIBUTION BY ANY MEMBER OF THE GENERAL PUBLIC. 

        IV. 

THE PUBLIC INTEREST IN HAVING FREE AND UNHINDERED DEBATE ON MATTERS
OF PUBLIC IMPORTANCE-- THE CORE VALUE OF THE FREE SPEECH CLAUSE OF THE
FIRST AMENDMENT-- IS SO GREAT THAT IT HAS BEEN HELD THAT A STATE CANNOT
AUTHORIZE THE RECOVERY OF DAMAGES BY A PUBLIC OFFICIAL FOR DEFAMATORY
STATEMENTS DIRECTED AT HIM EXCEPT WHEN SUCH STATEMENTS ARE SHOWN TO
HAVE BEEN MADE EITHER WITH KNOWLEDGE OF THEIR FALSITY.  NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S. 254 (1964); ST. AMANT V. THOMPSON, 390 U.S.
727 (1968).  COMPARE LINN V. UNITED PLANT GUARD WORKERS, 383 U.S. 53
(1966).  THE SAME TEST HAS BEEN APPLIED TO SUITS FOR INVASION OF
PRIVACY BASED ON FALSE STATEMENTS WHERE A "MATTER OF PUBLIC INTEREST"
IS INVOLVED.  TIME, INC. V. HILL, 385 U.S. 374 (1967).  IT IS THEREFORE
PERFECTLY CLEAR THAT, WERE APPELLANT A MEMBER OF THE GENERAL PUBLIC,
THE STATES POWER TO AFFORD THE APPELLEE BOARD OF EDUCATION OR ITS
MEMBERS ANY LEGAL RIGHT TO SUE HIM FOR WRITING THE LETTER AT ISSUE HERE
WOULD BE LIMITED BY THE REQUIREMENT THAT THE LETTER BE JUDGED BY THE
STANDARD LAID DOWN IN THE NEW YORK TIMES. 

THIS COURT HAS ALSO INDICATED, IN MORE GENERAL TERMS, THAT STATEMENTS
BY PUBLIC OFFICIALS ON MATTERS OF PUBLIC CONCERN MUST BE ACCORDED FIRST
AMENDMENT PROTECTION DESPITE THE FACT THAT THE STATEMENTS ARE DIRECTED
AT THEIR NOMINAL SUPERIORS.  GARRISON V. LOUISIANA, 379 U.S. 64 (1964);
WOOD V. GEORGIA, 370 U.S. 375 (1962).  IN GARRISON, THE NEW YORK TIMES
TEST WAS SPECIFICALLY APPLIED TO A CASE INVOLVING A CRIMINAL DEFAMATION
CONV1CTION STEMMING FROM STATEMENTS MADE BY A DISTRICT ATTORNEY ABOUT
THE JUDGES BEFORE WHOM HE REGULARLY APPEARED. 

WHILE CRIMINAL SANCTIONS AND DAMAGE AWARDS HAVE A SOMEWHAT DIFFERENT
IMPACT ON THE EXERCISE OF THE RIGHT TO FREEDOM OF SPEECH FROM DISMISSAL
FROM EMPLOYMENT, IT IS APPARENT THAT THE THREAT OF DISMISSAL FROM
PUBLIC EMPLOYMENT IS NONETHELESS A POTENT MEANS OF INHIBITING SPEECH. 
WE HAVE ALREAD NOTED OUR DISINCLINATION TO MAKE AN ACROSS-THE-BOARD
EQUATION OF DISMISSAL FROM PUBLIC EMPLOYMENT FOR REMARKS CRITICAL OF
SUPERIORS WITH AWARDING DAMAGES IN A LIBEL SUIT BY A PUBLIC OFFICIAL
FOR SIMILAR CRITICISM.  HOWEVER, IN A CASE SUCH AS THE PRESENT ONE, IN
WHICH THE FACT OF EMPLOYMENT IS ONLY TANGENTIALLY AND INSUBSTANTIALLY
INVOLVED IN THE SUBJECT MATTER OF THE PUBLIC COMMUNICATION MADE BY A
TEACHER, WE CONCLUDE THAT IT IS NECESSARY TO REGARD THE TEACHER AS THE
MEMBER OF THE GENERAL PUBLIC HE SEEKS TO BE. 

IN SUM, WE HOLD THAT, IN A CASE SUCH AS THIS, ABSENT PROOF OF FALSE
STATEMENTS KNOWINGLY OR RECKLESSLY MADE BY HIM, /6/  A TEACHER'S
EXERCISE OF HIS RIGHT TO SPEAK ON ISSUES OF PUBLIC IMPORTANCE MAY NOT
FURNISH THE BASIS FOR HIS DISMISSAL FROM PUBLIC EMPLOYMENT.  SINCE NO
SUCH SHOWING HAS BEEN MADE IN THIS CASE REGARDING APPELLANT'S LETTER,
SEE APPENDIX, INFRA, HIS DISMISSAL FOR WRITING IT CANNOT BE UPHELD AND
THE JUDGMENT OF THE ILLINOIS SUPREME COURT MUST, ACCORDINGLY, BE
REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

IT IS SO ORDERED. 

/1/  APPELLANT ALSO CHALLENGED THE STATUTORY STANDARD ON WHICH THE
BOARD BASED HIS DISMISSAL AS VAGUE AND OVERBROAD.  SEE KEYISHIAN V.
BOARD OF REGENTS, 385 U.S. 589 (1967); NAACP V. BUTTON, 371 U.S. 415
(1963); SHELTON V. TUCKER, 364 U.S. 479 (1960).  BECAUSE OF OUR
DISPOSITION OF THIS CASE WE DO NOT REACH APPELLANT'S CHALLENGE TO THE
STATUTE ON ITS FACE. 

/2/  WE HAVE SET OUT IN THE APPENDIX OUR DETAILED ANALYSIS OF THE
SPECIFIC STATEMENTS IN APPELLANT'S LETTER WHICH THE BOARD FOUND TO BE
FALSE, TOGETHER WITH OUR REASONS FOR CONCLUDING THAT SEVERAL OF THE
STATEMENTS WERE, CONTRARY TO THE FINDINGS OF THE BOARD, SUBSTANTIALLY
CORRECT. 

/3/  IT IS POSSIBLE TO CONCEIVE OF SOME POSITIONS IN PUBLIC
EMPLOYMENT IN WHICH THE NEED FOR CONFIDENTIALITY IS SO GREAT THAT EVEN
COMPLETELY CORRECT PUBLIC STATEMENTS MIGHT FURNISH A PERMISSIBLE GROUND
FOR DISMISSAL.  LIKEWISE, POSITIONS IN PUBLIC EMPLOYMENT IN WHICH THE
RELATIONSHIP BETWEEN SUPERIOR AND SUBORDINATE IS OF SUCH A PERSONAL AND
INTIMATE NATURE THAT CERTAIN FORMS OF PUBLIC CRITICISM OF THE SUPERIOR
BY THE SUBORDINATE WOULD SERIOUSLY UNDERMINE THE EFFECTIVENESS OF THE
WORKING RELATIONSHIP BETWEEN THEM CAN ALSO BE IMAGINED.  WE INTIMATE NO
VIEWS AS TO HOW WE WOULD RESOLVE ANY SPECIFIC INSTANCES OF SUCH
SITUATIONS, BUT MERELY NOTE THAT SIGNIFICANTLY DIFFERENT CONSIDERATIONS
WOULD BE INVOLVED IN SUCH CASES. 

/4/  THERE IS LIKEWISE NO OCCASION FURNISHED BY THIS CASE FOR
CONSIDERATION OF THE EXTENT TO WHICH TEACHERS CAN BE REQUIRED BY
NARROWLY DRAWN GRIEVANCE PROCEDURES TO SUBMIT COMPLAINTS ABOUT THE
OPERATION OF THE SCHOOLS TO THEIR SUPERIORS FOR ACTION THEREON PRIOR TO
BRINGING THE COMPLAINTS BEFORE THE PUBLIC. 

/5/  WE ALSO NOTE THAT THIS CASE DOES NOT PRESENT A SITUATION IN
WHICH A TEACHER'S PUBLIC STATEMENTS ARE SO WITHOUT FOUNDATION AS TO
CALL INTO QUESTION HIS FITNESS TO PERFORM HIS DUTIES IN THE CLASSROOM. 
IN SUCH A CASE, OF COURSE, THE STATEMENTS WOULD MERELY BE EVIDENCE OF
THE TEACHER'S GENERAL COMPETENCE, OR LACK THEREOF, AND NOT AN
INDEPENDENT BASIS FOR DISMISSAL. 

/6/  BECAUSE WE CONCLUDE THAT APPELLANT'S STATEMENTS WERE NOT
KNOWINGLY OR RECKLESSLY FALSE, WE HAVE NO OCCASION TO PASS UPON THE
ADDITIONAL QUESTION WHETHER A STATEMENT THAT WAS KNOWINGLY OR
RECKLESSLY FALSE WOULD, IF IT WERE NEITHER SHOWN NOR COULD REASONABLY
BE PRESUMED TO HAVE HAD ANY HARMFUL EFFECTS, STILL BE PROTECTED BY THE
FIRST AMENDMENT.  SEE ALSO N. 5, SUPRA. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, CONCURS IN
THE JUDGMENT OF THE COURT FOR THE REASONS SET OUT IN HIS CONCURRING
OPINIONS IN TIME, INC. V. HILL, 385 U.S. 374, 401, ROSENBLATT V. BAER,
383 U.S. 75, 88, AND GARRISON V. LOUISIANA, 379 U.S. 64, 80, AND IN THE
SEPARATE OPINIONS OF MR. JUSTICE BLACK IN CURTIS PUBLISHING CO. V.
BUTTS, 388 U.S. 130, 170, AND NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254, 293. 

        APPENDIX TO OPINION OF THE COURT. 

A. APPELLANT'S LETTER. 

        LETTERS TO THE EDITOR

        * * * GRAPHIC NEWSPAPERS, INC.

        THURSDAY, SEPTEMBER 24, 1964, PAGE 4 

DEAR EDITOR: 

I ENJOYED READING THE BACK ISSUES OF YOUR PAPER WHICH YOU LOANED TO
ME.  PERHAPS OTHERS WOULD ENJOY READING THEM IN ORDER TO SEE JUST HOW
FAR THE TWO NEW HIGH SCHOOLS HAVE DEVIATED FROM THE ORIGINAL PROMISES
BY THE BOARD OF EDUCATION.  FIRST, LET ME STATE THAT I AM REFERRING TO
THE FEBRUARY THRU NOVEMBER, 1961 ISSUES OF YOUR PAPER, SO THAT IT CAN
BE CHECKED. 

ONE STATEMENT IN YOUR PAPER DECLARED THAT SWIMMING POOLS, ATHLETIC
FIELDS, AND AUDITORIUMS HAD BEEN LEFT OUT OF THE PROGRAM.  THEY MAY
HAVE BEEN LEFT OUT BUT THEY GOT PUT BACK IN VERY QUICKLY BECAUSE
LOCKPORT WEST HAS BOTH AN AUDITORIUM AND ATHLETIC FIELD.  IN FACT,
LOCKPORT WEST HAS A BETTER ATHLETIC FIELD THAN LOCKPORT CENTRAL.  IT
HAS A TRACK THAT ISN'T QUITE REGULATION DISTANCE EVEN THOUGH THE BOARD
SPENT A FEW THOUSAND DOLLARS ON IT.  WHOSE FAULT IS THAT?  OH, I
FORFOT, IT WASN'T SUPPOSED TO BE THERE IN THE FIRST PLACE.  IT MUST
HAVE FALLEN OUT OF THE SKY.  SUCH RESPONSIBILITY HAS BEEN TOUCHED ON IN
OTHER LETTERS BUT IT SEEMS ONE JUST CAN'T HELP NOTICING IT.  I AM NOT
SAYING THE SCHOOL SHOULDN'T HAVE THESE FACILITIES, BECAUSE I THINK THEY
SHOULD, BUT PROMISES ARE PROMISES, OR ARE THEY? 

SINCE THERE SEEMS TO BE A PROBLEM GETTING ALL THE FACTS TO THE VOTER
ON THE TWICE DEFEATED BOND ISSUE, MANY LETTERS HAVE BEEN WRITTEN TO
THIS PAPER AND PROBABLY MORE WILL FOLLOW, I FEEL I MUST SAY SOMETHING
ABOUT THE LETTERS AND THEIR WRITERS.  MANY OF THESE LETTERS DID NOT
GIVE THE WHOLE STORY.  LETTERS BY YOUR BOARD AND ADMINISTRATION HAVE
STATED THAT TEACHERSSALARIES TOTAL $1,297,746 FOR ONE YEAR.  NOW THAT
MUST HAVE BEEN THE TOTAL PAYROLL, OTHERWISE THE TEACHERS WOULD BE
GETTING $10,000 A YEAR.  I TEACH AT THE HIGH SCHOOL AND I KNOW THAT
JUST ISN'T THE CASE.  HOWEVER, THIS SHOWS THEIR "STOP AT NOTHING"
ATTITUDE.  TO ILLUSTRATE FURTHER, DO YOU KNOW THAT THE SUPERINTENDENT
TOLD THE TEACHERS, AND I QUOTE, "ANY TEACHER THAT OPPOSES THE
REFERENDUM SHOULD BE PREPARED FOR THE CONSEQUENCES."  I THINK THIS GETS
AT THE REASON WE HAVE PROBLEMS PASSING BOND ISSUES.  THREATS TAKE
SOMETHING AWAY; THESE ARE INSULTS TO VOTERS IN A FREE SOCIETY.  WE
SHOULD TRY TO SELL A PROGRAM ON ITS MERITS, IF IT HAS ANY. 

REMEMBER THOSE LETTERS ENTITLED "DISTRICT 205 TEACHERS SPEAK," I
THINK THE VOTERS SHOULD KNOW THAT THOSE LETTERS HAVE BEEN WRITTEN AND
AGREED TO BY ONLY FIVE OR SIX TEACHERS, NOT 98% OF THE TEACHERS IN THE
HIGH SCHOOL.  IN FACT, MANY TEACHERS DIDNT EVEN KNOW WHO WAS WRITING
THEM.  DID YOU KNOW THAT THOSE LETTERS HAD TO HAVE THE APPROVAL OF THE
SUPERINTENDENT BEFORE THEY COULD BE PUT IN THE PAPER?  THAT'S THE KIND
OF TOTALITARIANISM TEACHERS LIVE IN AT THE HIGH SCHOOL, AND YOUR
CHILDREN GO TO SCHOOL IN. 

IN LAST WEEKS' PAPER, THE LETTER WRITTEN BY A FEW UNINFORMED
TEACHERS THREATENED TO CLOSE THE SCHOOL CAFETERIA AND FIRE ITS
PERSONNEL.  THIS IS RIDICULOUS AND INSULTS THE INTELLIGENCE OF THE
VOTER BECAUSE PROPERLY MANAGED SCHOOL CAFETERIAS DO NOT COST THE SCHOOL
DISTRICT ANY MONEY.  IF THE CAFETERIA IS LOSING MONEY, THEN THE BOARD
SHOULD NOT BE PACKING FREE LUNCHES FOR ATHLETES ON DAYS OF ATHLETIC
CONTESTS.  WHATEVER THE CASE, THE TAXPAYER'S CHILD SHOULD ONLY HAVE TO
PAY ABOUT 30[ FOR HIS LUNCH INSTEAD OF 35[ TO PAY FOR FREE LUNCHES FOR
THE ATHLETES. 

IN A REPLY TO THIS LETTER YOUR BOARD OF ADMINISTRATION WILL PROBABLY
STATE THAT THESE LUNCHES ARE PAID FOR FROM RECEIPTS FROM THE GAMES. 
BUT $20,000 IN RECEIPTS DOESN'T PAY FOR THE $200,000 A YEAR THEY HAVE
BEEN SPENDING ON VARSITY SPORTS WHILE NEGLECTING THE WANTS OF
TEACHERS. 

YOU SEE WE DON'T NEED AN INCREASE IN THE TRANSPORTATION TAX UNLESS
THE VOTERS WANT TO KEEP PAYING $50,000 OR MORE A YEAR TO TRANSPORT
ATHLETES HOME AFTER PRACTICE AND TO AWAY GAMES, ETC.  REST OF THE
$200,000 IS MADE UP IN COACHES' SALARIES, ATHLETIC DIRECTORS' SALARIES,
BASEBALL PITCHING MACHINES, SODDED FOOTBALL FIELDS, AND THOUSANDS OF
DOLLARS FOR OTHER SPORTS EQUIPMENT. 

THESE THINGS ARE ALL RIGHT, PROVIDED WE HAVE ENOUGH MONEY FOR THEM. 
TO SOD FOOTBALL FIELDS ON BORROWED MONEY AND THEN NOT BE ABLE TO PAY
TEACHERS' SALARIES IS GETTING THE CART BEFORE THE HORSE. 

IF THESE THINGS AREN'T ENOUGH FOR YOU, LOOK AT EAST HIGH.  NO DOORS
ON MANY OF THE CLASSROOMS, A PLANT ROOM WITHOUT ANY SUNLIGHT, NO WATER
IN A FIRST AID TREATMENT ROOM, ARE JUST A FEW OF MANY THINGS.  THE
TAXPAYERS WERE REALLY TAKEN TO THE CLEANERS.  A PART OF THE SIDEWALK IN
FRONT OF THE BUILDING HAS ALREADY COLLAPSED.  MAYBE MR. HESS WOULD BE
INTERESTED TO KNOW THAT WE NEED BLINDS ON THE WINDOWS IN THAT BUILDING
ALSO. 

ONCE AGAIN, THE BOARD MUST HAVE FORGOTTEN THEY WERE GOINT TO SPEND
$3,200,000 ON THE WEST BUILDING AND $2,300,000 ON THE EAST BUILDING. 

AS I SEE IT, THE BOND ISSUE IS A FIGHT BETWEEN THE BOARD OF
EDUCATION THAT IS TRYING TO PUSH TAX-SUPPORTED ATHLETICS DOWN OUR
THROATS WITH EDUCATION, AND A PUBLIC THAT HAS MIXED EMOTIONS ABOUT BOTH
OF THESE ITEMS BECAUSE THEY FEEL THEY ARE ALREADY PAYING ENOUGH TAXES,
AND SIMPLY DON'T KNOW WHOM TO TRUST WITH ANY MORE TAX MONEY. 

I MUST SIGN THIS LETTER AS A CITIZEN, TAXPAYER AND VOTER, NOT AS A
TEACHER, SINCE THAT FREEDOM HAS BEEN TAKEN FROM THE TEACHERS BY THE
ADMINISTRATION.  DO YOU REALLY KNOW WHAT GOES ON BEHIND THOSE STONE
WALLS AT THE HIGH SCHOOL? 

        RESPECTFULLY,    MARVIN L. PICKERING. 

        B. ANALYSIS. 

THE FOREGOING LETTER CONTAINS EIGHT PRINCIPAL STATEMENTS WHICH THE
BOARD FOUND TO BE FALSE.  /1/  OUR INDEPENDENT REVIEW OF THE RECORD /2/
CONVINCES US THAT JUSTICE SCHAEFER WAS CORRECT IN HIS DISSENTING
OPINION IN THIS CASE WHEN HE CONCLUDED THAT MANY OF THE APPELLANT'S
STATEMENTS WHICH WERE FOUND BY THE BOARD TO BE FALSE WERE IN FACT
SUBSTANTIALLY CORRECT.  WE SHALL DEAL WITH EACH OF THE STATEMENTS FOUND
TO BE FALSE IN TURN.  (1) APPELLANT ASSERTED IN HIS LETTER THAT THE TWO
NEW HIGH SCHOOLS WERE CONSTRUCTED DEVIATED SUBSTANTIALLY FROM THE
ORIGINAL PROMISES MADE BY THE BOARD DURING THE CAMPAIGN ON THE BOND
ISSUE ABOUT THE FACILITIES THEY WOULD CONTAIN.  THE BOARD BASED ITS
CONCLUSION THAT THIS STATEMENT WAS FALSE ON ITS DETERMINATION THAT THE
PROMISES REFERRED TO WERE THOSE MADE IN THE CAMPAIGN TO PASS THE SECOND
BOND ISSUE IN DECEMBER OF 1961.  IN THE CAMPAIGN ON THE FIRST BOND
ISSUE THE BOARD STATED THAT THE PLANS FOR THE TWO SCHOOLS DID NOT
INCLUDE SUCH ITEMS AS SWIMMING POOLS, AUDITORIUMS, AND ATHLETIC
FIELDS.  THE PUBLICITY PUT OUT BY THE BOARD ON THE SECOND BOND ISSUE
MENTIONED NOTHING ABOUT THE ADDITION OF AN AUDITORIUM TO THE PLANS AND
ALSO MENTIONED NOTHING SPECIFIC ABOUT ATHLETIC FIELDS, ALTHOUGH A
GENERAL REFERENCE TO "STATE REQUIRED PHYSICAL EDUCATION" FACILITIES WAS
INCLUDED THAT WAS SIMILAR TO A REFERENCE MADE IN THE MATERIAL ISSUED BY
THE BOARD DURING THE FIRST CAMPAIGN. 

IN SUM, THE BOARD FIRST STATED THAT CERTAIN FACILITIES WERE NOT TO
BE INCLUDED IN THE NEW HIGH SCHOOLS AS AN ECONOMY MEASURE, CHANGED ITS
MIND AFTER THE DEFEAT OF THE FIRST BOND ISSUE AND DECIDED TO INCLUDE
SOME OF THE FACILITIES PREVIOUSLY OMITTED, AND NEVER SPECIFICALLY OR
EVEN GENERALLY INDICATED TO THE TAXPAYERS THE CHANGE.  APPELLANT'S
CLAIM THAT THE ORIGINAL PLANS, AS DISCLOSED TO THE PUBLIC, DEVIATED
FROM THE BUILDINGS ACTUALLY CONSTRUCTED IS THUS SUBSTANTIALLY CORRECT
AND HIS CHARACTERIZATION OF THE BOARD'S PRIOR STATEMENT AS A "PROMISE"
IS FAIR AS A MATTER OF OPINION.  THE BOARD'S CONCLUSION TO THE CONTRARY
BASED ON ITS DETERMINATION THAT APPELLANT'S STATEMENT REFERRED ONLY TO
THE LITERATURE DISTRIBUTED DURING THE SECOND BOND ISSUE CAMPAIGN IS
UNREASONABLE IN THAT IT IGNORES THE WORD "ORIGINAL" THAT MODIFIES
"PROMISES" IN APPELLANT'S LETTER. 

(2) APPELLANT STATED THAT THE BOARD INCORRECTLY INFORMED THE PUBLIC
THAT "TEACHERS' SALARIES" TOTAL $1,297,746 PER YEAR.  THE BOARD FOUND
THAT STATEMENT FALSE.  HOWEVER, THE SUPERINTENDENT OF SCHOOLS ADMITTED
THAT THE ONLY WAY THE BOARD'S FIGURE COULD BE REGARDED AS ACCURATE WAS
TO CHANGE THE WORD "TEACHERS" TO "INSTRUCTIONAL" WHEREBY THE SALARIES
OF DEANS, PRINCIPALS, LIBRARIANS, COUNSELORS, AND FOUR SECRETARIES AT
EACH OF THE DISTRICT'S THREE HIGH SCHOOLS WOULD BE INCLUDED IN THE
TOTAL.  APPELLANT'S CHARACTERIZATION OF THE BOARD'S FIGURE AS INCORRECT
IS THUS CLEARLY ACCURATE. 

(3) PICKERING CLAIMED THAT THE SUPERINTENDENT HAD SAID THAT ANY
TEACHER WHO DID NOT SUPPORT THE 1961 BOND ISSUE REFERENDUM SHOULD BE
PREPARED FOR THE CONSEQUENCES.  THE BOARD FOUND THIS CLAIM FALSE. 
HOWEVER, THE STATEMENT WAS CORROBORATED BY THE TESTIMONY OF TWO OTHER
TEACHERS, ALTHOUGH THE SUPERINTENDENT DENIED MAKING THE REMARK
ATTRIBUTED TO HIM.  THE ILLINOIS SUPREME COURT APPEARS TO HAVE AGREED
THAT SOMETHING ALONG THE LINES STATED BY APPELLANT WAS SAID, SINCE IT
RELIED, IN UPHOLDING THE BOARD'S FINDING THAT APPELLANT'S VERSION OF
THE REMARK WAS FALSE, ON TESTIMONY BY ONE OF THE TWO TEACHERS THAT HE
INTERPRETED THE REMARK TO BE A PREDICTION ABOUT THE ADVERSE
CONSEQUENCES FOR THE SCHOOLS SHOULD THE REFERENDUM NOT PASS RATHER THAN
A THREAT AGAINST NONCOOPERATION BY TEACHERS.  HOWEVER, THE OTHER
TEACHER TESTIFIED THAT HE DIDN'T KNOW HOW TO INTERPRET THE REMARK. 
ACCORDINGLY, WHILE APPELLANT MAY HAVE MISINTERPRETED THE MEANING OF THE
REMARK, HE DID NOT MISREPORT IT. 

(4) APPELLANT'S LETTER STATED THAT LETTERS FROM TEACHERS TO
NEWSPAPERS HAD TO HAVE APPROVAL OF THE SUPERINTENDENT BEFORE THEY COULD
BE SUBMITTED FOR PUBLICATION.  THE BOARD RELIED IN FINDING THIS
STATEMENT FALSE ON THE TESTIMONY BY THE SUPERINTENDENT THAT NO APPROVAL
WAS REQUIRED BY HIM.  HOWEVER, THE HANDBOOK FOR TEACHERS OF THE
DISTRICT SPECIFICALLY STATED AT THAT TIME THAT MATERIAL SUBMITTED TO
LOCAL PAPERS SHOULD BE CHECKED WITH THE BUILDING PRINCIPAL AND
SUBMITTED IN TRIPLICATE TO THE PUBLICITY COORDINATOR.  IN PARTICULAR,
THE TEACHERS' LETTERS TO WHICH APPELLANT WAS SPECIFICALLY REFERRING IN
HIS OWN LETTER HAD IN FACT BEEN SUBMITTED TO THE SUPERINTENDENT PRIOR
TO THEIR PUBLICATION.  THUS THIS STATEMENT IS SUBSTANTIALLY CORRECT. 

THE OTHER FOUR STATEMENTS CHALLENGED BY THE BOARD, ARE FACTUALLY
INCORRECT IN VARYING DEGREES.  (5) APPELLANT'S LETTER IMPLIED THAT
PROVIDING ATHLETES IN THE SCHOOLS WITH FREE LUNCHES MEANT THAT OTHER
STUDENTS MUST PAY 35[ INSTEAD OF 30[ FOR THEIR LUNCHES.  THIS STATEMENT
IS ERRONEOUS IN THAT WHILE DISCONTINUING FREE LUNCHES FOR ATHLETES
WOULD HAVE PERMITTED SOME SMALL DECREASE IN THE 35[ CHARGE FOR LUNCH TO
OTHER STUDENTS, THE DECREASE WOULD NOT HAVE BROUGHT THE PRICE DOWN TO
30[.  (6) APPELLANT CLAIMED THAT THE BOARD HAD BEEN SPENDING $200,000 A
YEAR ON ATHLETICS WHILE NEGLECTING THE WANTS OF TEACHERS.  THIS CLAIM
IS INCORRECT IN THAT THE $200,000 PER YEAR FIGURE INCLUDED OVER
$130,000 OF NONRECURING CAPITAL EXPENDITURES.  (7) APPELLANT ALSO
CLAIMED THAT THE BOARD HAD BEEN SPENDING $50,000 A YEAR ON
TRANSPORTATION FOR ATHLETES.  THIS CLAIM IS COMPLETELY FALSE IN THAT
THE EXPENDITURES ON TRAVEL FOR ATHLETES PER YEAR WERE ABOUT $10,000. 
(8) FINALLY, APPELLANT STATED THAT FOOTBALL FIELDS HAD BEEN SODDED ON
BORROWED MONEY, WHILE THE BOARD HAD BEEN UNABLE TO PAY TEACHERS'
SALARIES.  THIS STATEMENT IS SUBSTANTIALLY CORRECT AS TO THE FOOTBALL
FIELDS BEING SODDED WITH BORROWED MONEY BECAUSE THE MONEY SPENT WAS THE
PROCEEDS OF PART OF THE BOND ISSUE, WHICH CAN FAIRLY BE CHARACTERIZED
AS BORROWED.  IT IS INCORRECT INSOFAR AS IT SUGGESTS THAT THE
DISTRICT'S TEACHERS HAD ACTUALLY NOT BEEN PAID UPON OCCASION, BUT
CORRECT IF TAKEN TO MEAN THAT THE BOARD HAD AT TIMES SOME DIFFICULTY IN
OBTAINING THE FUNDS WITH WHICH TO PAY TEACHERS.  THE MANNER IN WHICH
THE LAST FOUR STATEMENTS ARE FALSE IS PERFECTLY CONSISTENT WITH GOOD
FAITH ERROR, AND THERE IS NO EVIDENCE IN THE RECORD TO SHOW THAT
ANYTHING OTHER THAN CARELESSNESS OR INSUFFICIENT INFORMATION WAS
RESPONSIBLE FOR THIER BEING MADE. 

/1/  WE SHALL NOT BOTHER TO ENUMERATE SOME OF THE STATEMENTS WHICH
THE BOARD FOUND TO BE FALSE BECAUSE THEIR TRIVIALITY IS SO READILY
APPARENT THAT THE BOARD COULD NOT RATIONALLY HAVE CONSIDERED THEM AS
DETRIMENTAL TO THE INTERESTS OF THE SCHOOLS REGARDLESS OF THEIR TRUTH
OR FALSITY. 

/2/  THIS COURT HAS REGULARLY HELD THAT WHERE CONSTITUTIONAL RIGHTS
ARE IN ISSUE AN INDEPENDENT EXAMINATION OF THE RECORD WILL BE MADE IN
ORDER THAT THE CONTROLLING LEGAL PRINCIPLES MAY BE APPLIED TO THE
ACTUAL FACTS OF THE CASE.  E.G., NORRIS V. ALABAMA, 294 U.S. 587
(1935); PENNEKAMP V. FLORIDA, 328 U.S. 331 (1946(; NEW YORK TIMES CO.
V. SULLIVAN, 376 7.S. 254 (1964).  HOWEVER, EVEN IN CASES WHERE THE
UPHOLDING OR REJECTION OF A CONSTITUTIONAL CLAIM TURNS ON THE
RESOLUTION OF FACTUAL QUESTIONS, WE ALSO CONSISTENTLY GIVE GREAT, IF
NOT CONTROLLING, WEIGHT TO THE FINDINGS OF THE STATE COURTS.  IN THE
PRESENT CASE THE TRIER OF FACT WAS THE SAME BODY THAT WAS ALSO THE
VICTIM OF APPELLANT'S STATEMENTS AND THE PROSECUTOR THAT BROUGHT THE
CHARGES AIMED AT SECURING HIS DISMISSAL.  THE STATE COURTS MADE NO
INDEPENDENT REVIEW OF THE RECORD BUT SIMPLY CONTENTED THEMSELVES WITH
ASCERTAINING, IN ACCORDANCE WITH THE STATUTE, WHETHER THERE WAS
SUBSTANTIAL EVIDENCE TO SUPPORT THE BOARD'S FINDINGS. 

APPELLANT REQUESTS US TO REVERSE THE STATE COURTS' DECISIONS
UPHOLDING HIS DISMISSAL ON THE INDEPENDENT GROUND THAT THE PROCEDURE
FOLLOWED ABOVE DEPRIVED HIM OF DUE PROCESS IN THAT HE WAS NOT AFFORDED
AN IMPARTIAL TRIBUNAL.  HOWEVER, APPELLANT MAKES THIS CONTENTION FOR
THE FIRST TIME IN THIS COURT, NOT HAVING RAISED IT AT ANY POINT IN THE
STATE PROCEEDINGS.  BECAUSE OF THIS, WE DECLINE TO TREAT APPELLANT'S
CLAIM AS AN INDEPENDENT GROUND FOR OUR DECISION IN THIS CASE.  ON THE
OTHER HAND, WE DO NOT PROPOSE TO BLIND OUTSELVES TO THE OBVIOUS DEFECTS
IN THE FACT-FINDING PROCESS OCCASIONED BY THE BOARD'S MULTIPLE
FUNCTIONING VIS-A-VIS APPELLANT.  COMPARE TUMEY V. OHIO, 273 U.S. 510
(1927); IN RE MURCHISON, 349 U.S. 133 (1955).  ACCORDINGLY, SINCE THE
STATE COURTS HAVE AT NO TIME GIVEN DE NOVO CONSIDERATION TO THE
STATEMENTS IN THE LETTER, WE FEEL FREE TO EXAMINE THE EVIDENCE IN THIS
CASE COMPLETELY INDEPENDENTLY AND TO AFFORD LITTLE WEIGHT TO THE
FACTUAL DETERMINATIONS MADE BY THE BOARD. 

MR. JUSTICE WHITE, CONCURRING IN PART AND DISSENTING IN PART. 

THE COURT HOLDS THAT TRUTHFUL STATEMENTS BY A SCHOOL TEACHER
CRITICAL OF THE SCHOOL BOARD ARE WITHIN THE AMBIT OF THE FIRST
AMENDMENT.  SO ALSO ARE FALSE STATEMENTS INNOCENTLY OR NEGLIGENTLY
MADE.  THE STATE MAY NOT FIRE THE TEACHER FOR MAKING EITHER UNLESS, AS
I GATHER IT, THERE ARE SPECIAL CIRCUMSTANCES, NOT PRESENT IN THIS CASE,
DEMONSTRATING AN OVERRIDING STATE INTEREST, SUCH AS THE NEED FOR
CONFIDENTIALITY OR THE SPECIAL OBLIGATIONS WHICH A TEACHER IN A
PARTICULAR POSITION MAY OWE TO HIS SUPERIORS.  /1/ THE CORE OF TODAY'S
DECISION IS THE HOLDING THAT PICKERING'S DISCHARGE MUST BE TESTED BY
THE STANDARD OF NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964). 
TO THIS EXTENT I AM IN AGREEMENT. 

THE COURT GOES ON, HOWEVER, TO REOPEN A QUESTION I HAD THOUGHT
SETTLED BY NEW YORK TIMES AND THE CASES THAT FOLLOWED IT, PARTICULARLY
GARRISON V. LOUISIANA, 379 U.S. 64 (1964).  THE COURT DEVOTES SEVERAL
PAGES TO REEXAMINING THE FACTS IN ORDER TO REJECT THE DETERMINATION
BELOW THAT PICKERING'S STATEMENTS HARMED THE SCHOOL SYSTEM, ANTE, AT
570-573, WHEN THE QUESTION OF HARM IS CLEARLY IRRELEVANT GIVEN THE
COURT'S DETERMINATION THAT PICKERING'S STATEMENTS WERE NEITHER
KNOWINGLY NOR RECKLESSLY FALSE AND ITS RULING THAT IN SUCH
CIRCUMSTANCES A TEACHER MAY NOT BE FIRED EVEN IF THE STATEMENTS ARE
INJURIOUS.  THE COURT THEN GRATUITOUSLY SUGGESTS THAT WHEN STATEMENTS
ARE FOUND TO BE KNOWINGLY OR RECKLESSLY FALSE, IT IS AN OPEN QUESTION
WHETHER THE FIRST AMENDEMENT STILL PROTECTS THEM UNLESS THEY ARE SHOWN
OR CAN BE PRESUMED TO HAVE CAUSED HARM.  ANTE, AT 574, N. 6. 
DELIBERATE OR RECKLESS FALSEHOODS SERVE NO FIRST AMENDMENT ENDS AND
DESERVE NO PROTECTION UNDER THAT AMENDMENT.  THE COURT UNEQUIVOCALLY
RECOGNIZED THIS IN GARRISON, WHERE AFTER REARGUMENT THE COURT SAID THAT
"THE MKNOWINGLY FALSE STATEMENT AND THE FALSE STATEMENT MADE WITH
RECKLESS DISREGARD OF THE TRUTH, DO NOT ENJOY CONSTITUTIONAL
PROTECTION."  379 U.S., AT 75.  THE COURT TODAY NEITHER EXPLAINS NOR
JUSTIFIES ITS WITHDRAWAL FROM THE FIRM STAND TAKEN IN GARRISON.  AS I
SEE IT, A TEACHER MAY BE FIRED WITHOUT VIOLATION OF THE FIRST AMENDMENT
FOR KNOWINGLY OR RECKLESSLY MAKING FALSE STATEMENTS REGARDLESS OF THEIR
HARMFUL IMPACT ON THE SCHOOLS.  AS THE COURT HOLDS, HOWEVER, IN THE
ABSENCE OF SPECIAL CIRCUMSTANCES HE MAY NOT BE FIRED IT HIS STATEMENTS
WERE TRUE OR ONLY NEGLIGENTLY FALSE, EVEN IF THERE IS SOME HARM TO THE
SCHOOL SYSTEM.  I THEREFORE SEE NO BASIS OR NECESSITY FOR THE COURT'S
FORAY INTO FACT-FINDING WITH RESPECT TO WHETHER THE RECORD SUPPORTS A
FINDING AS TO INJURY.  /2/  IF PICKERING'S FALSE STATEMENTS WERE EITHER
KNOWINGLY OR RECKLESSLY MADE, INJURY TO THE SCHOOL SYSTEM BECOMES
IRRELEVANT, AND THE FIRST AMENDMENT WOULD NOT PREVENT HIS DISCHARGE. 
FOR THE STATE TO BE CONSTITUTIONALLY PRECLUDED FROM TERMINATING HIS
EMPLOYMENT, RELIANCE ON SOME OTHER CONSTITUTIONAL PROVISION WOULD BE
REQUIRED. 

NOR CAN I JOIN THE COURT IN ITS FINDINGS WITH REGARD TO WHETHER
PICKERING KNOWINGLY OR RECKLESSLY PUBLISHED FALSE STATEMENTS.  NEITHER
THE STATE IN PRESENTING ITS EVIDENCE NOR THE STATE TRIBUNALS IN
ARRIVING AT THEIR FINDINGS AND CONCLUSIONS OF LAW ADDRESSED THEMSELVES
TO THE ELEMENTS OF THE NEW STANDARD WHICH THE COURT HOLDS THE FIRST
AMENDMENT TO REQUIRE IN THE CIRCUMSTANCES OF THIS CASE.  INDEED, THE
STATE COURTS EXPRESSLY REJECTED THE APPLICABILITY OF BOTH NEW YORK
TIMES AND GARRISON.  I FIND IT WHOLLY UNSATISFACTORY FOR THIS COURT TO
MAKE THE INITIAL DETERMINATION OF KNOWING OR RECKLESS FALSEHOOD FROM
THE COLD RECORD NOW BEFORE US.  IT WOULD BE FAR MORE APPROPRIATE TO
REMAND THIS CASE TO THE STATE COURTS FOR FURTHER PROCEEDINGS IN LIGHT
OF THE CONSTITUTIONALY STANDARD WHICH THE COURT DEEMS APPLICABLE TO
THIS CASE, ONCE THE RELEVANT FACTS HAVE BEEN ASCERTAINED IN APPROPRIATE
PROCEEDINGS. 

/1/  SEE ANTE, AT 569-570, 572 AND NN. 3, 4.  THE COURT DOES NOT
ELABORATE UPON ITS SUGGESTION THAT THERE MAY BE SITUATIONS IN WHICH,
WITH REFERENCE TO CERTAIN AREAS OF PUBLIC COMMENT, A TEACHER MAY HAVE
SPECIAL OBLIGATIONS TO HIS SUPERIORS.  IT SIMPLY HOLDS THAT IN THIS
CASE, WITH RESPECT TO THE PARTICULAR PUBLIC COMMENT MADE BY PICKERING,
HE IS MORE LIKE A MEMBER OF THE GENERAL PUBLIC AND, APPARENTLY, TOO
REMOTE FROM THE SCHOOL BOARD TO REQUIRE PLACING HIM INTO ANY SPECIAL
CATEGORY.  FURTHER, AS I READ THE COURT'S OPINION, IT DOES NOT
FORECLOSE THE POSSIBILITY THAT UNDER THE FIRST AMENDMENT A SCHOOL
SYSTEM MAY HAVE AN ENFORCEABLE RULE, APPLICABLE TO TEACHERS, THAT
PUBLIC STATEMENTS ABOUT SCHOOL BUSINESS MUST FIRST BE SUBMITTED TO THE
AUTHORITIES TO CHECK FOR ACCURACY. 

/2/  EVEN IF CONSIDERATION OF HARM WERE NECESSARY IN THIS CASE, I
COULD NOT JOIN THE COURT IN CONCLUDING ON THIS RECORD THAT HARM TO THE
SCHOOL ADMINISTRATION WAS NOT PROVED AND COULD NOT BE PRESUMED. 

JOHN LIGTENBERG ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WAS ANDREW J. LEAHY. 

JOHN F. CIRRICIONE ARGUED THE CAUSE AND FILED A BRIEF FOR APPELLEE. 

MILTON I. SHADUR FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES
UNION, ILLINOIS DIVISION, AS AMICUS CURIAE, URGING REVERSAL. 
..END :





SABBATH V. UNITED STATES, 391 U.S. 585 


       SABBATH V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 898.  ARGUED MAY 2, 1968.-- DECIDED JUNE 3, 1968. 


ONE JONES WAS APPREHENDED CROSSING THE BORDER FROM MEXICO WITH
COCAINE, ALLEGEDLY GIVEN TO HIM BY, AND TO BE DELIVERED TO, "JOHNNY" IN
LOS ANGELES.  CUSTOMS OFFICERS ARRANGED FOR JONES TO MAKE DELIVERY. 
SHORTLY AFTER JONES ENTERED "JOHNNY'S" APARTMENT, CUSTOMS AGENTS,
WITHOUT A WARRANT, KNOCKED ON THE DOOR, WAITED A FEW SECONDS, AND,
RECEIVING NO RESPONSE, OPENED THE UNLOCKED DOOR AND ENTERED.  THEY
ARRESTED PETITIONER, SEARCHED THE APARTMENT, AND FOUND THE COCAINE AND
OTHER ITEMS.  THE COCAINE WAS INTRODUCED OVER OBJECTION AT PETITIONER'S
TRIAL FOR KNOWINGLY IMPORTING AND CONCEALING NARCOTICS, AND HE WAS
CONVICTED.  THE COURT OF APPEALS HELD THAT THE AGENT DID NOT "BREAK
OPEN" THE DOOR WITHIN THE MEANING OF 18 U.S.C. 3109, WHICH PROVIDES IN
PART THAT AN "OFFICER MAY BREAK OPEN ANY OUTER OR INNER DOOR OR WINDOW
OF A HOUSE . . . TO EXECUTE A SEARCH WARRANT, IF, AFTER NOTICE OF HIS
AUTHORITY AND PURPOSE, HE IS REFUSED ADMITTANCE OR WHEN NECESSARY TO
LIBERATE HIMSELF OR A PERSON AIDING HIM," AND THAT THEY WERE THEREFORE
NOT REQUIRED TO MAKE A PRIOR ANNOUNCEMENT OF "AUTHORITY AND PURPOSE." 
HELD: 

1.  THE VALIDITY OF AN ENTRY OF A FEDERAL OFFICER TO EFFECT A
WARRANTLESS ARREST "MUST BE TESTED BY CRITERIA IDENTICAL TO THOSE
EMBODIED IN" 18 U.S.C. 3109, WHICH DEALS WITH AN ENTRY TO EXECUTE A
SEARCH WARRANT.  MILLER V. UNITED STATES, 357 U.S. 301; WONG SUN V.
UNITED STATES, 371 U.S. 471.  PP. 588-589. 

2.  SECTION 3109, A CODIFICATION OF THE COMMON-LAW RULE OF
ANNOUNCEMENT, BASICALLY PROSCRIBES AN UNANNOUNCED INTRUSION INTO A
DWELLING, WHICH INCLUDES OPENING A CLOSED BUT UNLOCKED DOOR.  PP. 589
591. 

3.  WHETHER OR NOT EXIGENT CIRCUMSTANCES WOULD EXCUSE COMPLIANCE
WITH SEC. 3109, HERE THERE WERE NONE, AS THE AGENTS HAD NO BASIS FOR
ASSUMING PETITIONER WAS ARMED OR THAT HE MIGHT RESIST ARREST, OR THAT
JONES WAS IN DANGER.  P. 591. 

380 F.2D 108, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER PETITIONER'S ARREST WAS INVALID
BECAUSE FEDERAL OFFICERS OPENED THE CLOSED BUT UNLOCKED DOOR OF
PETITIONER'S APARTMENT AND ENTERED IN ORDER TO ARREST HIM WITHOUT FIRST
ANNOUNCING THEIR IDENTITY AND PURPOSE.  WE HOLD THAT THE METHOD OF
ENTRY VITIATED THE ARREST AND THEREFORE THAT EVIDENCE SEIZED IN THE
SUBSEQUENT SEARCH INCIDENT THERETO SHOULD NOT HAVE BEEN ADMITTED AT
PETITIONER'S TRIAL. 

ON FEBRUARY 19, 1966, ONE WILLIAM JONES WAS DETAINED AT THE BORDER
BETWEEN CALIFORNIA AND MEXICO BY UNITED STATES CUSTOMS AGENTS, WHO
FOUND IN HIS POSSESSION AN OUNCE OF COCAINE.  AFTER SOME QUESTIONING,
JONES TOLD THE AGENTS THAT HE HAD BEEN GIVEN THE NARCOTICS IN TIJUANA,
MEXICO, BY A PERSON NAMED "JOHNNY," WHOM HE HAD ACCOMPANIED THERE FROM
LOS ANGELES.  HE SAID HE WAS TO TRANSPORT THE NARCOTICS TO "JOHNNY" IN
THE LATTER CITY. 

ALSO FOUND IN JONES' POSSESSION WAS A CARD ON WHICH WAS WRITTEN THE
NAME "JOHNNY" AND A LOS ANGELES TELEPHONE NUMBER.  ON THE FOLLOWING DAY
AT ABOUT 3 P.M., JONES MADE A CALL TO THE TELEPHONE NUMBER LISTED ON
THE CARD; A CUSTOMS AGENT DIALED THE NUMBER, AND WITH JONES'
PERMISSION, LISTENED TO THE ENSUING CONVERSATION.  A MALE VOICE
ANSWERED THE CALL, AND JONES ADDRESSED THE MAN AS "JOHNNY."  JONES SAID
HE WAS IN SAN DIEGO, AND STILL HAD "HIS THING."  THE MAN ASKED JONES IF
HE HAD "ANY TROUBLE GETTING THROUGH THE LINE."  JONES REPLIED THAT HE
HAD NOT.  JONES INQUIRED WHETHER "JOHNNY" PLANNED TO REMAIN AT HOME,
AND UPON RECEIVING AN AFFIRMATIVE ANSWER, INDICATED THAT HE WAS ON HIS
WAY TO LOS ANGELES, AND WOULD GO TO THE MAN'S APARTMENT. 

AT ABOUT 7:30 THAT EVENING, THE CUSTOM AGENTS WENT WITH JONES TO AN
APARTMENT BUILDING IN LOS ANGELES.  THE AGENTS RETURNED TO JONES THE
COCAINE THEY HAD SEIZED FROM HIM, AND PLACED A SMALL BROADCASTING
DEVICE ON HIM.  THE AGENTS WAITED OUTSIDE THE BUILDING, LISTENING ON A
RECEIVING APPARATUS.  JONES KNOCKED ON THE APARTMENT DOOR; A WOMAN
ANSWERED.  JONES ASKED IF "JOHNNY" WAS IN, AND WAS TOLD TO WAIT A
MINUTE.  STEPS WERE HEARD AND THEN A MAN ASKED JONES SOMETHING ABOUT
"GETTING THROUGH THE LINE."  BECAUSE OF THE NOISE FROM A PHONOGRAPH IN
THE PARTMENT, RECEPTION FROM THE BROADCASTING DEVICE ON JONES' PERSON
WAS POOR, BUT AGENTS DID HEAR THE WORD "PACKAGE." 

THE CUSTOMS AGENTS WAITED OUTSIDE FOR FIVE TO 10 MINUTES, AND THEN
PROCEEDED TO THE APARTMENT DOOR.  ONE KNOCKED, WAITED A FEW SECONDS,
AND, RECEIVING NO RESPONSE, OPENED THE UNLOCKED DOOR, AND ENTERED THE
APARTMENT WITH HIS GUN DRAWN.  OTHER AGENTS FOLLOWED, AT LEAST ONE OF
WHOM ALSO HAD HIS GUN DRAWN.  THEY SAW PETITIONER SITTING ON A COUCH,
IN THE PROCESS OF WITHDRAWING HIS HAND FROM UNDER THE ADJACENT
CUSHION.  AFTER PLACING PETITIONER UNDER ARREST, AN AGENT FOUND THE
PACKAGE OF COCAINE UNDER THE CUSHION, AND SUBSEQUENTLY OTHER ITEMS
(E.G., SMALL PIECES OF TIN FOIL) WERE FOUND IN THE PARTMENT; OFFICERS
TESTIFIED AT TRIAL THEY WERE ADAPTED TO PACKAGING NARCOTICS. 

PETITIONER AND JONES WERE INDICTED FOR KNOWINGLY IMPORTING THE
COCAINE INTO THIS COUNTRY AND CONCEALING IT, IN VIOLATION OF SEC. 2 OF
THE NARCOTIC DRUGS IMPORT AND EXPORT ACT, AS AMENDED, 35 STAT. 614, 21
U.S.C. 173 AND 174.  PETITIONER WAS TRIED ALONE.  THE NARCOTICS SEIZED
AT PETITIONER'S APARTMENT WERE ADMITTED INTO EVIDENCE, OVER OBJECTION. 
ON APPEAL, FOLLOWING THE CONVICTION, THE COURT OF APPEALS FOR THE NINTH
CIRCUIT RULES THAT THE OFFICERS, IN EFFECTING ENTRY TO PETITIONER'S
APARTMENT BY OPENING THE CLOSED BUT UNLOCKED DOOR, DID NOT "BREAK OPEN"
THE DOOR WITHIN THE MEANING OF 18 U.S.C. 3109 AND THEREFORE WERE NOT
REQUIRED BY THAT STATUTE TO MAKE A PRIOR ANNOUNCEMENT OF "AUTHORITY AND
PURPOSE."  380 F.2D 108.  WE GRANTED CERTIORARI, 389 U.S. 1003 (1967),
TO CONSIDER THE SOMEWHAT UNCOMPLICATED BUT NONETHELESS SIGNIFICANT
ISSUE OF WHETHER THE AGENTS' ENTRY WAS CONSONANT WITH FEDERAL LAW.  /1/
WE HOLD THAT IT WAS NOT, AND THEREFORE REVERSE. 

THE STATUTE HERE INVOLVED, 18 U.S.C. 3109, /2/  DEALS WITH THE ENTRY
OF FEDERAL OFFICERS INTO A DWELLING IN TERMS ONLY IN REGARD TO THE
EXECUTION OF A SEARCH WARRANT.  THIS COURT HAS HELD, HOWEVER, THAT THE
VALIDITY OF SUCH AN ENTRY OF A FEDERAL OFFICER TO EFFECT AN ARREST
WITHOUT A WARRANT "MUST BE TESTED BY CRITERIA IDENTICAL WITH THOSE
EMBODIED IN" THAT STATUTE.  MILLER V. UNITED STATES, 357 U.S. 301, 306
(1958); WONG SUN V. UNITED STATES, 371 U.S. 471, 482-484 (1963).  /3/
WE THEREFORE AGREE WITH THE PARTIES AND WITH THE COURT BELOW THAT WE
MUST LOOK AT SEC. 3109 AS CONTROLLING. 

IN MILLER V. UNITED STATES, SUPRA, THE COMMON-LAW BACKGROUND TO SEC.
3109 WAS EXTENSIVELY EXAMINED.  /4/  THE COURT THERE CONCLUDED, ID., AT
313: 

"THE REQUIREMENT OF PRIOR NOTICE OF AUTHORITY AND PURPOSE BEFORE
FORCING ENTRY INTO A HOME IS DEEPLY ROOTED IN OUR HERITAGE AND SHOULD
NOT BE GIVEN GRUDGING APPLICATION.  CONGRESS, CODIFYING A TRADITION
EMBEDDED IN ANGLO-AMERICAN LAW, HAD DECLARED IN SEC. 3109 THE REVERENCE
OF THE LAW FOR THE INDIVIDUAL'S RIGHT OF PRIVACY IN HIS HOUSE."  IT WAS
ALSO NOTED, ID., AT 313, N. 12, THAT ANOTHER FACET OF THE RULE OF
ANNOUNCEMENT WAS, GENERALLY, TO SAFEGUARD OFFICERS, WHO MIGHT BE
MISTAKEN, UPON AN UNANNOUNCED INTRUSION INTO A HOME, FOR SOMEONE WITH
NO RIGHT TO BE THERE.  SEE ALSO MCDONALD V. UNITED STATES, 335 U.S.
451, 460-461.  (CONCURRING OPINION). 

CONSIDERING THE PURPOSES OF SEC. 3109, IT WOULD INDEED BE A
"GRUDGING APPLICATION" TO HOLD, AS THE GOVERNMENT URGES, THAT THE USE
OF "FORCE" IS AN INDISPENSABLE ELEMENT OF THE STATUTE.  TO BE SURE, THE
STATUTE USES THE PHRASE "BREAK OPEN" AND THAT CONNOTES SOME USE OF
FORCE.  BUT LINGUISTIC ANALYSIS SELDOM IS ADEQUATE WHEN A STATUTE IS
DESIGNED TO INCORPORATE FUNDAMENTAL VALUES AND THE ONGOING DEVELOPMENT
OF THE COMMON LAW.  /5/  THUS, THE CALIFORNIA SUPREME COURT HAS
RECENTLY INTERPRETED THE COMMON-LAW RULE OF ANNOUNCEMENT CODIFIED IN A
STATE STATUTE IDENTICAL IN RELEVANT TERMS TO SEC. 3109 TO APPLY TO AN
ENTRY BY POLICE THROUGH A CLOSED BUT UNLOCKED DOOR.  PEOPLE V. ROSALES,
68 CAL.2D 299, 437 P.2D 489 (1968).  AND IT HAS BEEN HELD THAT SEC.
3109 APPLIES TO ENTRIES EFFECTED BY THE USE OF A PASSKEY, /6/  WHICH
REQUIRES NO MORE FORCE THAN DOES THE TURNING OF A DOORKNOB.  AN
UNANNOUNCED INTRUSION INTO A DWELLING-- WHAT SEC. 3109 BASICALLY
PROSCRIBES-- IS NO LESS AN UNANNOUNCED INTRUSION WHETHER OFFICERS BREAK
DOWN A DOOR, FORCE OPEN A CHAIN LOCK ON A PARTIALLY OPEN DOOR, OPEN A
LOCKED DOOR BY USE OF A PASSKEY, OR, AS HERE, OPEN A CLOSED BUT
UNLOCKED DOOR.  /7/  THE PROTECTION AFFORDED BY, AND THE VALUES
INHERENT IN, SEC. 3109 MUST BE "GOVERNED BY SOMETHING MORE THAN THE
FORTUITOUS CIRCUMSTANCES OF AN UNLOCKED DOOR."  KEININGHAM V. UNITED
STATES, 109 U.S.APP.D.C. 272, 276, 287 F.2D 126, 130 (1960). 

THE GOVERNMENT SEEKS TO INVOKE AN EXCEPTION TO THE RULE OF
ANNOUNCEMENT, CONTENDING THAT THE AGENTS' LACK OF COMPLIANCE WITH THE
STATUTE IS EXCUSED BECAUSE AN ANNOUNCEMENT MIGHT HAVE ENDANGERED THE
INFORMANT JONES OR THE OFFICERS THEMSELVES.  SEE, E.G., GILBERT V.
UNITED STATES, 366 F.2D 923, 931 (C.A. 9TH CIR. 1966), CERT. DENIED,
388 U.S. 922 (1967); CF. KER V. CALIFORNIA, 374 U.S. 23, 39-40 (1963)
(OPINION BY CLARK, J.); ID., AT 47 (OPINION OF BRENNAN, J.).  HOWEVER,
WHETHER OR NOT "EXIGENT CIRCUMSTANCES,"  MILLER V. UNITED STATES,
SUPRA, AT 309, WOULD EXCUSE COMPLIANCE WITH SEC. 3109, /8/ THIS RECORD
DOES NOT REVEAL ANY SUBSTANTIAL BASIS FOR EXCUSING THE FAILURE OF THE
AGENTS HERE TO ANNOUNCE THEIR AUTHORITY AND PURPOSE.  THE AGENTS HAD NO
BASIS FOR ASSUMING PETITIONER WAS ARMED OR MIGHT RESIST ARREST, OR THAT
JONES WAS IN ANY DANGER.  NOR, AS TO THE FORMER, DID THE AGENTS MAKE
ANY INDEPENDENT INVESTIGATION OF PETITIONER PRIOR TO SETTING THE STAGE
FOR HIS ARREST WITH THE NARCOTICS IN HIS POSSESSION. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

   REVERSED AND REMANDED. 

/1/  THE GOVERNMENT CONTENDS IN THIS COURT THAT PETITIONER DID NOT
ADEQUATELY RAISE AT TRIAL THE ISSUE OF THE AGENTS' MANNER OF ENTRY, AND
THEREFORE THAT IT DID NOT HAVE SUFFICIENT OPPORTUNITY TO INDICATE THE
FULL CIRCUMSTANCES SURROUNDING THE ENTRY AND PETITIONER'S ARREST. 
HOWEVER, PETITIONER'S TRIAL COUNSEL, IN THE COURSE OF OBJECTING,
CLEARLY STATED THERE WERE NOT FACTS "SUFFICIENT TO JUSTIFY THIS
OFFICER'S BREAKING INTO" THE APARTMENT, AND HIS OBJECTION WAS TRUNCATED
BY A RULING OF THE TRIAL JUDGE.  IN ANY EVENT, THE GOVERNMENT MET THE
ISSUE ON THE MERITS IN THE COURT OF APPEALS, AND APPARENTLY DID NOT
HTHERE CONTEND THE RECORD WAS INADEQUATE FOR ITS RESOLUTION; AND THE
COURT OF APPEALS DECIDED THE ISSUE ON THE MERITS.  IN THESE
CIRCUMSTANCES, WE ARE JUSTIFIED IN LIKEWISE DOING SO. 

/2/  "THE OFFICER MAY BREAK OPEN ANY OUTER OR INNER DOOR OR WINDOW
OF A HOUSE, OR ANY PART OF A HOUSE, OR ANYTHING THEREIN, TO EXECUTE A
SEARCH WARRANT, IF, AFTER NOTICE OF HIS AUTHORITY AND PURPOSE, HE IS
REFUSED ADMITTANCE OR WHEN NECESSARY TO LIBERATE HIMSELF OR A PERSON
AIDING HIM IN THE EXECUTION OF THE WARRANT." 

/3/  SEE ALSO, E.G., NG PUI YU V. UNITED STATES, 352 F.2D 626, 631
(C.A. 9TH CIR. 1965); GATLIN V. UNITED STATES, 117 U.S.APP.D.C. 123,
130, 326 F.2D 666, 673 (C.A.D.C. CIR. 1963); UNITED STATES V. CRUZ, 265
F.SUPP.  15, 21 (W.D. TX. 1967). 

/4/  SEE ALSO KER V. CALIFORNIA, 374 U.S. 23, 47-59 (1963) (OPINION
OF BRENNAN, J.). 

/5/  WHILE DISTINCTIONS ARE OBVIOUS, A USEFUL ANALOGY IS NONETHELESS
AFFORDED BY THE COMMON AND CASE LAW DEVELOPMENT OF THE LAW OF BURGLARY:
A FORCIBLE ENTRY HAS GENERALLY BEEN ELIMINATED AS AN ELEMENT OF THAT
CRIME UNDER STATUTES USING THE WORD "BREAK," OR SIMILAR WORDS.  SEE R.
PERKINS, CRIMINAL LAW AND ITS ADMINISTRATION 367-382 (1940); NOTE, A
RATIONAL OF THE LAW OF BURGLARY, 51 COL.L.REV.  1009, 1012-1015
(1951).  COMMENTATORS ON THE LAW OF ARREST HAVE VIEWED THE DEVELOPMENT
OF THAT BODY OF LAW AS SIMILAR.  SEE H. VOORHEES, LAW OF ARREST SECS.
159, 172-173 (1904); WILGUS, ARREST WITHOUT A WARRANT, 22 MICH.L.REV. 
798, 806 (1924): 

"WHAT CONSTITUTES 'BREAKING' SEEMS TO BE THE SAME AS IN BURGLARY:
LIFTING A LATCH, TURNING A DOOR KNOB, UNHOOKING A CHAIN OR HASP,
REMOVING A PROP TO, OR PUSHING OPEN, A CLOSED DOOR OF ENTRANCE TO THE
HOUSE,-- EVEN A CLOSED SCREEN DOOR . . . IS A BREAKING . . . . "
(FOOTNOTES OMITTED.)  SEE GENERALLY BLAKELY, THE RULE OF ANNOUNCEMENT
AND UNLAWFUL ENTRY, 112 U.PA.L.REV.  499 (1964). 

/6/  SEE, E.G., MUNOZ V. UNITED STATES, 325 F.2D 23, 26 (C.A. 9TH
CIR. 1963); UNITED STATES V. SIMS, 231 F.SUPP.  251, 254 (D.C. MD.
1964); CF. PEOPLE V. STEPHENS, 249 CAL.APP.2D 113, 57 CAL.RPTR.  66
(1967).  SEE ALSO KER V. CALIFORNIA, 374 U.S.,AT 38. 

/7/  WE DO NOT DEAL HERE WITH ENTRIES OBTAINED BY RUSE, WHICH HAVE
BEEN VIEWED AS INVOLVING NO "BREAKING."  SEE, E.G., SMITH V. UNITED
STATES, 357 F.2D 486, 488, N. 1 (C.A. 5TH CIR. 1966); LEAHY V. UNITED
STATES, 272 F.2D 487, 489 (C.A. 9TH CIR. 1959).  SEE ALSO WILGUS, N. 5,
SUPRA, AT 806. 

/8/  EXCEPTIONS TO ANY POSSIBLE CONSTITUTIONAL RULE RELATING TO
ANNOUNCEMENT AND ENTRY HAVE BEEN RECOGNIZED, SEE KER V. CALIFORNIA,
SUPRA, AT 47 (OPINION OF BRENNAN, J.), AND THERE IS LITTLE REASON WHY
THOSE LIMITED EXCEPTIONS MIGHT NOT ALSO APPLY TO SEC. 3109, SINCE THEY
EXISTED AT COMMON LAW, OF WHICH THE STATUTE IS A CODIFICATION.  SEE
GENERALLY BLAKEY, N. 5, SUPRA. 

MR. JUSTICE BLACK DISSENTS. 

MURRAY H. BRING, BY APPOINTMENT OF THE COURT, 390 U.S. 935, ARGUED
THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

JOHN S. MARTIN, JR., ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
VINSON, BEATRICE ROSENBERG, AND KIRBY W. PATTERSON. 
..END :



















WATTS V. SEWARD SCHOOL BOARD, 391 U.S. 592 


       WATTS ET AL. V. SEWARD SCHOOL BOARD ET AL.

  CERTIORARI TO THE SUPREME COURT OF ALASKA. 

        NO. 325.  ARGUED MARCH 26, 1968.-- DECIDED JUNE 3, 1968. 


421 P.2D 586, 423 P.2D 678, VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE SUPREME
COURT OF ALASKA FOR FURTHER CONSIDERATION IN LIGHT OF PICKERING V.
BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT 205, WILL COUNTY,
ANTE, P. 563. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINES, WOULD
REVERSE THE JUDGMENT OUTRIGHT FOR THE REASONS STATED BY HIM IN
PICKERING V. BOARD OF EDUCATION, ANTE, P. 575. 

MR. JUSTICE WHITE DISSENTS. 

GEORGE KAUFMANN ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONERS. 

THEODORE M. PEASE, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 
..END :
























KAISER STEEL CORP. V. W. S. RANCH CO., 391 U.S. 593 


       KAISER STEEL CORP. V. W. S. RANCH CO.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

      COURT OF APPEALS FOR THE TENTH CIRCUIT. 

NO. 1328.  DECIDED JUNE 3, 1968. 


THE COURT OF APPEALS ERRED IN REFUSING TO STAY ITS ACTION IN THIS
DIVERSITY CASE, AS THE CRUCIAL STATE LAW ISSUE INVOLVED IS OF VITAL
CONCERN, IS TRULY NOVEL, WILL HAVE TO BE RESOLVED EVENTUALLY IN THE NEW
MEXICO COURTS, AND A DECLARATORY JUDGMENT ACTION IS ACTUALLY PENDING
THERE. 

CERTIORARI GRANTED; 388 F.2D 257 AND 262, REVERSED AND REMANDED. 

PER CURIAM. 

RESPONDENT BROUGHT THIS DIVERSITY SUIT IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW MEXICO, CLAIMING AN ILLEGAL TRESPASS BY
PETITIONER AND SEEKING DAMAGES AND AN INJUNCTION.  PETITIONER ADMITTED
THE ALLEGED TRESPASS BUT CLAIMED IT WAS AUTHORIZED TO DO SO THIS BY
N.M. STAT. ANN. SEC. 75-1-3 (1953), IN ORDER TO USE WATER RIGHTS IT HAD
BEEN GRANTED BY THE STATE.  RESPONDENT CONTENDED THAT IF SEC. 75-1-3
WERE CONSTRUED TO AUTHORIZE CONDEMNATION OF PRIVATE LAND TO SECURE
WATER FOR A PRIVATE BUSINESS, THE LAW WOULD VIOLATE THE NEW MEXICO
CONSTITUTION, WHICH PERMITS THE TAKING OF PRIVATE PROPERTY ONLY FOR
"PUBLIC USE."  N.M. CONST., ART. II, SEC. 20.  THE CRUCIAL ISSUE THUS
BECAME THE INTERPRETATION OF THE TERM "PUBLIC USE" IN THE STATE
CONSTITUTION.  THE DISTRICT COURT HELD THAT THE PROPERTY HAD BEEN TAKEN
FOR A PUBLIC USE, REJECTING THE SUGGESTION IN PETITIONER'S BRIEF THAT
THE ACTION BE STAYED PENDING DECISION OF THE CRUCIAL QUESTION BY THE
STATE COURTS.  THE COURT OF APPEALS REVERSED ON THE MERITS, 388 F.2D
257 (1967), AND REJECTED PETITIONER'S MOTION TO STAY THE FEDERAL COURTS
ACTION UNTIL THE STATE LAW ISSUES COULD BE SETTLED IN A DECLARATORY
JUDGMENT SUIT THEN PENDING IN THE STATE COURTS, 388 F.2D, AT 262 (1968)
(ON PETITION FOR REHEARING). 

THE COURT OF APPEALS ERRED IN REFUSING TO STAY ITS HAND.  THE STATE
LAW ISSUE WHICH IS CRUCIAL IN THIS CASE IS ONE OF VITAL CONCERN IN THE
ARID STATE OF NEW MEXICO, WHERE WATER IS ONE OF THE MOST VALUABLE
NATURAL RESOURCES.  THE ISSUE, MOREOVER, IS A TRULY NOVEL ONE.  THE
QUESTION WILL EVENTUALLY HAVE TO BE RESOLVED BY THE NEW MEXICO COURTS,
AND SINCE A DECLARATORY JUDGMENT ACTION IS ACTUALLY PENDING THERE, IN
ALL LIKELIHOOD THAT RESOLUTION WILL BE FORTHCOMING SOON.  SOUND
JUDICIAL ADMINISTRATION REQUIRES THAT THE PARTIES IN THIS CASE BE GIVEN
THE BENEFIT OF THE SAME RULE OF LAW WHICH WILL APPLY TO ALL OTHER
BUSINESSES AND LANDOWNERS CONCERNED WITH THE USE OF THIS VITAL STATE
RESOURCE. 

THE WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED, AND THE CASE IS REMANDED WITH DIRECTIONS THAT THE
ACTION BE STAYED IN ACCORDANCE WITH THE PRAYER OF PETITIONER.  FEDERAL
JURISDICTION WILL BE RETAINED IN THE DISTRICT COURT IN ORDER TO INSURE
A JUST DISPOSITION OF THIS LITIGATION SHOULD ANYTHING PREVENT A PROMPT
STATE COURT DETERMINATION. 

IT IS SO ORDERED. 

MR. JUSTICE BRENNAN, WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MARSHALL JOIN, CONCURRING. 

I CONCUR SOLELY ON THE GROUND THAT THIS CASE PRESENTS ONE OF THE
"NARROWLY LIMITED 'SPECIAL CIRCUMSTANCES'" WHICH JUSTIFY THE INVOCATION
OF "(THE JUDGE-MADE DOCTRINE OF ABSTENTION," ZWICKLER V. KOOTA, 389
U.S. 241, 248.  THE "SPECIAL CIRCUMSTANCES," AS THE COURT STATES, ARISE
FROM THE FACT THAT "(THE STATE LAW ISSUE WHICH IS CRUCIAL IN THIS CASE
IS ONE OF VITAL CONCERN IN THE ARID STATE OF NEW MEXICO, WHERE WATER IS
ONE OF THE MOST VALUABLE NATURAL RESOURCES."  CF. ALABAMA PUBLIC
SERVICE COMM'N V. SOUTHERN R. CO., 341 U.S. 341; BURFORD V. SUN OIL
CO., 319 U.S. 315; SEE ZWICKLER V. KOOTA, SUPRA, AT 249, N. 11.  I
ADHERE HOWEVER TO MY VIEW, EXPRESSED IN DISSENT IN LOUISIANA POWER &
LIGHT CO. V. CITY OF THIBODAUX, 360 U.S. 25, 31, THAT IN A DIVERSITY
CASE ABSTENTION FROM DECISION OF A STATE LAW QUESTION IS IMPROPER IN
THE ABSENCE OF SUCH "SPECIAL CIRCUMSTANCES." 

J. R. MODRALL FOR PETITIONER. 

WILLIAM R. FEDERICI FOR RESPONDENT. 

BOSTON E. WITT, ATTORNEY GENERAL, AND F. HARLAN FLINT, SPECIAL
ASSISTANT ATTORNEY GENERAL, FILED A BRIEF FOR THE STATE OF NEW MEXICO
ON THE RELATION OF THE NEW MEXICO STATE ENGINEER, AS AMICUS CURIAE, IN
SUPPORT OF THE PETITION. 
..END :









JOHNSON V. FLORIDA, 391 U.S. 596 


       JOHNSON V. FLORIDA. 

        APPEAL FROM THE SUPREME COURT OF FLORIDA. 

        NO. 1393, MISC.  DECIDED JUNE 3, 1968. 


APPELLANT, FOUND BY OFFICERS AT 4:25 A.M. SITTING ON A BENCH AT A BUS
STOP, WAS CHARGED WITH VIOLATING A FLORIDA VAGRANCY LAW MAKING IT A
MISDEMEANOR TO BE FOUND "WANDERING OR STROLLING AROUND FROM PLACE TO
PLACE WITHOUT ANY LAWFUL PURPOSE OR OBJECT."  AN OFFICER TESTIFIED
CONCERNING INFORMATION WHICH APPELLANT HAD SUPPLIED, INCLUDING THE FACT
THAT HE WAS ON PROBATION WHICH HAD A 10 P.M. CURFEW AND HIS WHEREABOUTS
BEFORE ARRIVING AT THE BUS STOP, WHERE APPELLANT SAID HE HAD WAITED FOR
A BUS FOR SOME THREE HOURS.  THE RECORD DOES NOT SHOW HOW HE GOT TO THE
BUS STOP.  APPELLANT'S MOTION FOR A DIRECTED VERDICT WAS DENIED, THE
DEFENSE PRESENTED NO EVIDENCE, APPELLANT WAS CONVICTED, AND THE FLORIDA
SUPREME COURT AFFIRMED.  HELD:  THE FACT THAT APPELLANT WAS OUT LONG
AFTER THE CURFEW HOUR OF HIS PROBATION MAY BE HELD TO ESTABLISH THE NO
"LAWFUL PURPOSE OR OBJECT" INGREDIENT OF THE OFFENSE, BUT THE JUDGMENT
CANNOT STAND SINCE THERE WAS NO EVIDENCE ESTABLISHING THE "WANDERING OR
STROLLING" INGREDIENT.  THOMPASON V. LOUISIANA, 362 U.S. 199. 

202 SO.2D 852, REVERSED. 

PER CURIAM. 

APPELLANT WAS CHARGED WITH VIOLATING A FLORIDA VAGRANCY STATUTE,
FLA. STAT. SEC. 856.02, WHICH MAKES IT A MISDEMEANOR TO BE FOUND
"WANDERING OR STOLLING AROUND FROM PLACE TO PLACE WITHOUT ANY LAWFUL
PURPOSE OR OBJECT." 

OFFICER HAVENS TESTIFIED THAT HE AND OFFICER CARANI WERE PATROLLING
THE BIRD ROAD AREA OF DADE COUNTY AT ABOUT 4:25 A.M. WHEN THEY SAW
APPELLANT SEATED ON A BENCH AT A BUS STOP.  THE OFFICERS STOPPED AND
ASKED HIM WHY HE WAS THERE.  HE REPLIED THAT HE WAS WAITING FOR A BUS. 
HAVENS TOLD HIM THAT THE LAST BIRD ROAD BUS HAD RUN AT 11 P.M. AND THAT
BUSES DID NOT RESUME SERVICE UNTIL 7 A.M.  HAVENS THEN ASKED HIM WHERE
HE HAD BEEN.  HE SAID HE HAD BEEN TO A THEATRE (WHICH WAS ABOUT TWO
MILES AWAY) AND AFTERWARDS HAD GONE TO THE HOUSE OF HIS GIRL FRIEND,
JOYCE, WHO LIVED NEAR THE THEATRE. 

ON HAVENS' REQUEST, APPELLANT SUPPLIED IDENTIFICATION WHICH SHOWED
HE WAS AGE 18 AND LIVED IN THAT AREA OF THE COUNTY. 

HAVENS THEN ASKED HIM IF HE HAD EVER BEEN IN TROUBLE WITH THE LAW. 
HE REPLIED THAT HE WAS ON PROBATION FROM A BREAKING AND ENTERING CHARGE
AND HAD A 10 P.M. CURFEW.  HE WAS THEN ASKED TO ACCOUNT FOR HIS
WHEREABOUTS FROM 11 P.M. TO 4:30 A.M.  HE EXPLAINED THAT HE GOT OUT OF
THE MOVIE ABOUT 10:30 OR 10:45, WENT TO JOYCE'S HOUSE, AND AFTER
LEAVING HER PLACE, AND REACHING THE BUS STOP HAD WAITED SOME THREE
HOURS FOR A BUS.  THE OFFICERS DID NOT DISCUSS WITH APPELLANT THE MEANS
OR MANNER BY WHICH HE GOT TO THE BUS STOP FROM THE THEATRE AND JOYCE'S
HOUSE; AND THE RECORD DOES NOT SUPPLY THAT INFORMATION.  APPELLANT
APPARENTLY HAD PHONED FOR A CAB AFTER WAITING ON THE BENCH TWO OR THREE
HOURS FOR A BUS.  HAVENS ASKED APPELLANT HOW MUCH MONEY HE HAD ON HIS
PERSON.  APPELLANT SAID HE HAD 70[ OR 80[.  HAVENS TOLD APPELLANT THIS
WAS NOT ENOUGH CABFARE TO GET TO APPELLANT'S RESIDENCE.  IT WAS THEN
THAT HE WAS ARRESTED. 

THE AREA WHERE APPELLANT WAS ARRESTED IS A MIXED RESIDENTIAL-BUSINESS
AREA WITH SEVERAL STORES, INCLUDING A STORE, OPEN 24 HOURS A DAY,
DIRECTLY ACROSS FROM WHERE APPELLANT SAT ON THE BENCH.  THAT STORE WAS
WELL LIGHTED.  WHERE APPELLANT SAT WAS NOT LIGHTED.  OFFICER CARANI
ADDED THAT THERE WAS A CAB STAND NEARBY (SOME 1,200 FEET AWAY) BUT THAT
NO CABS WERE SEEN IN THE AREA BY HIM AT THE TIME APPELLANT WAS
INTERROGATED. 

APPELLANT, WHO WAIVED A TRIAL BY JURY, MOVED FOR DIRECTED VERDICT,
ARGUING THERE WAS NO PROOF THAT HE WANDERED, NO PROOF OF ABSENCE OF
LAWFUL PURPOSE AND NO PROOF THAT A BUS WOULD NOT SOON HAVE COME TO THE
BUS STOP. 

THE MOTION WAS DENIED, THE DEFENSE PRESENTED NO EVIDENCE, APPELLANT
WAS CONVICTED, AND HE WAS PLACED ON PROBATION FOR A YEAR.  THE FLORIDA
SUPREME COURT AFFIRMED.  THE CASE IS HERE BY APPEAL.  /1/ 

THE PROSECUTION EMPHASIZED THAT APPELLANT HAD FAILED TO ACCOUNT FOR
ANY "LAWFUL PURPOSE" DURING THE TIME HE SAT ON THE BENCH FOR SOME THREE
HOURS.  THE BURDEN, HOWEVER, IS ON THE STATE TO PROVE THAT AN ACCUSED
HAS COMMITTED AN ACT BRINGING HIM WITHIN A CRIMINAL STATUTE.  THE
ESSENTIAL INGREDIENTS OF THE CRIME CHARGED WERE "WANDERING OR STROLLING
AROUND FROM PLACE TO PLACE WITHOUT ANY LAWFUL PURPOSE OR OBJECT."  THE
FACT THAT HE WAS ON PROBATION WITH A 10 P.M. CURFEW AND OUT LONG AFTER
THAN HOUR MAY BE HELD TO ESTABLISH THAT INGREDIENT OF THE CRIME OF NO
"LAWFUL PURPOSE OR OBJECT."  BUT HE WAS NOT WANDERING, OR STROLLING,
ONLY SITTING.  THE BENCH WHERE HE SAT WAS MADE FOR SITTING AND HE WAS
USING IT FOR THAT PURPOSE IN THE PRECISE PLACE WHERE THE BENCH HAD BEEN
PLACED.  AND HE HAD SAT THERE FOR SOME HOURS.  WE THEREFORE CONCLUDE
THAT SO FAR AS THE "WANDERING OR STROLLING" INGREDIENT OF THE CRIME IS
CONCERNED, THE RECORD IS LACKING IN ANY EVIDENCE TO SUPPORT THE
JUDGMENT.  IN LINE WITH THOMPSON V. LOUISIANA, 362 U.S. 199, AND
WITHOUT REACHING OTHER CONSTITUTIONAL QUESTIONS THAT ARE TENDERED, WE
MUST THEREFORE GRANT THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND REVERSE THE JUDGMENT BELOW. 

   REVERSED. 

/1/  THE JUDGMENT OF THE FLORIDA SUPREME COURT FROM WHICH THIS
APPEAL IS TAKEN WAS ENTERED OCTOBER 4, 1967.  APPELLANT'S NOTICE OF
APPEAL, FILED DECEMBER 30, 1967, WAS TIMELY UNDER RULE 11(1) OF THE
RULES OF THIS COURT.  THE APPEAL WAS NOT DOCKETED UNTIL 56 DAYS AFTER
THE TIME PROVIDED IN RULE 13(1) EXPIRED.  THIS DEFECT, HOWEVER, IS NOT
JURISDICTIONAL.  PITTSBURG TOWING CO. V. MISSISSIPPI VALLEY BARGE LINE
CO., 385 U.S. 32. 

MR. JUSTICE BLACK AND MR. JUSTICE STEWARD WOULD DISMISS THE APPEAL. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

FLORIDA'S COURTS HAVE OBVIOUSLY INTERPRETED THEIR STATUTE TO PERMIT
A SHOWING THAT A DEFENDANT WAS ON A PARK BENCH AT 4:25 A.M. "WITHOUT
ANY LAWFUL PURPOSE OR OBJECT" TO ESTABLISH A PRIMA FACIE CASE THAT THE
DEFENDANT WAS "WANDERING OR STROLLING AROUND" WITHOUT LAWFUL PURPOSE. 
MOST INHABITANTS OF PARK BENCHES REACH THEIR BENCH BY WANDERING OR
STROLLING.  SO INTERPRETING THE STATUTE, CONSTITUTIONALLY SUFFICIENT
AMOUNTS OF EVIDENCE WERE PRESENTED. 

THE COURT DOES NOT REACH THE CLAIM APPELLANT MAKES HERE, THAT
FLORIDA'S STATUTE OFFENDS THE CONSTITUTION BECAUSE IT IS VAGUE.  THAT
CLAIM IS SUBSTANTIAL, AND I WOULD NOTE PROBABLE JURISDICTION AND SET
THE CASE FOR ORAL ARGUMENT. 

EARL FAIRCLOTH, ATTORNEY GENERAL OF FLORIDA, AND HAROLD MENDELOW,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :













IN RE FISCHER, 391 U.S. 600 


       IN RE FISCHER. 

        APPEAL FROM THE COURT OF APPEALS OF OHIO, CUYAHOGA COUNTY. 

        NO. 229.  DECIDED JUNE 3, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE FORTAS ARE OF THE OPINION THAT
CERTIORARI SHOULD BE GRANTED, AND THE JUDGMENT VACATED, AND THE CASE
REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF IN RE GAULT, 387 U.S.
1. 

MR. JUSTICE BLACK DISSENTS. 

DAVID I. SINDELL FOR APPELLANT. 

JOHN T. CORRIGAN AND FREDERICK W. FREY FOR APPELLEE. 
..END :



SKOLNICK V. MOSES, 391 U.S. 600 


       SKOLNICK ET AL. V. MOSES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS. 

        NO. 1330.  DECIDED JUNE 3, 1968. 


AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

PETER S. SARELAS, APPELLANT, PRO SE.
..END :












CLABER DISTRIBUTING CO. V. RUBBERMAID, INC., 391 U.S. 601 


       CLABER DISTRIBUTING CO. V. RUBBERMAID, INC.

   APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 1310.  DECIDED JUNE 3, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IF DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

DONALD M. ROBINER FOR APPELLANT. 

DAVID W. PANCOAST FOR APPELLEE. 
..END :











FOSDICK V. HAMILTON COUNTY, 391 U.S. 601 


       FOSDICK ET AL. V. HAMILTON COUNTY. 

        APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 1352.  DECIDED JUNE 3, 1968. 


13 OHIO ST.2D 63, 233 N.E.2D 864, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

ROBERT H. FOSDICK, PRO SE, AND FOR OTHER APPELLANT. 

FRANK H. SHAFFER, JR., FOR APPELLEE. 
..END :









JACKSON V. OLIVER, 391 U.S. 602 


       JACKSON V. OLIVER, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 547, MISC.  DECIDED JUNE 3, 1968. 

        CERTIORARI GRANTED; VACATED AND REMANDED. 


PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF PEYTON V. ROWE, ANTE, P.
54. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND EDSEL W. HAWS
AND EDWARD A. HINZ, JR., DEPUTY ATTORNEYS GENERAL, FOR RESPONDENT. 
..END :








HEYMAN V. MICHIGAN, 391 U.S. 602 


       HEYMAN V. MICHIGAN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

        NO. 1099, MISC. DECIDED JUNE 3, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF PEYTON V. ROWE, ANTE, P.
54. 
..END :










VAUGHN V. RODRIGUEZ, 391 U.S. 603 


       VAUGHN V. RODRIGUEZ, ACTING WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

     COURT OF APPEALS FOR THE TENTH CIRCUIT. 

        NO. 1149, MISC.  DECIDED JUNE 3, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF PEYTON V. ROWE, ANTE, P.
54. 

BOSTON E. WITT, ATTORNEY GENERAL OF NEW MEXICO, AND THOMAS O. OLSON,
SPECIAL ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :







PEART V. CALIFORNIA, 391 U.S. 603 


       PEART V. CALIFORNIA. 

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 1445, MISC.  DECIDED JUNE 3, 1968. 


67 CAL.2D 866, 434 P.2D 609, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














IOANNOU V. NEW YORK, 391 U.S. 604 


       IOANNOU V. NEW YORK ET AL.

        ON MOTION FOR LEAVE TO FILE A PETITION FOR REHEARING. 

        NO. 191, OCTOBER TERM, 1962.  DECIDED JUNE 3, 1968. 


371 U.S. 30, MOTION FOR LEAVE TO FILE PETITION FOR REHEARING DENIED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE A PETITION FOR REHEARING IS DENIED UPON
THE REPRESENTATION OF THE ATTORNEY GENERAL OF NEW YORK THAT THE MOVANT
MAY FILE A NEW APPLICATION "TO WITHDRAW THE FUNDS DEPOSITED WITH THE
NEW YORK CITY TREASURER" IN LIGHT OF CHANGED CIRCUMSTANCES.  SEE
ZSCHERNIG V. MILLER, 389 U.S. 429; GOLDSTEIN V. COX, 389 U.S. 581. 

MR. JUSTICE DOUGLAS. 

SINCE THE ONLY CHANGED CIRCUMSTANCES CONCERN THE INTERVENING
DECISION OF THIS COURT IN ZSCHERNIG V. MILLER, 389 U.S. 429, AND SINCE
THE RATIONALE OF THAT DECISION APPLIES TO CUSTODIAL STATUTES SUCH AS
NEW YORK HAS AS WELL AS TO ESCHEAT STATUTES LIKE OREGON'S, I WOULD
DISPOSE OF THE CASE HERE AND NOW (EITHER AFTER OR WITHOUT ORAL
ARGUMENT) AND NOT REQUIRE PETITIONER TO RETRAVEL ONCE MORE THE LONG,
ARDUOUS, AND EXPENSIVE PATH FROM NEW YORK'S SURROGATE COURT. 

MR. JUSTICE HARLAND WOULD DENY UNCONDITIONALLY THE MOTION FOR LEAVE
TO FILE A PETITION FOR REHEARING, SUBSTANTIALLY FOR THE REASONS GIVEN
IN HIS DISSENTING OPINION IN UNITED STATES V. OHIO POWER CO., 353 U.S.
98, 99. 

MR. JUSTICE FORTAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION ON THIS MOTION. 

SYDNEY J. SCHWARTZ ON THE MOTION. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, AND DANIEL M.
COHEN, ASSISTANT ATTORNEY GENERAL, IN OPPOSITION. 
..END :











BONNIE V. GLADDEN, 391 U.S. 605 


       BONNIE V. GLADDEN, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 731, MISC.  DECIDED JUNE 3, 1968. 

        CERTIORARI GRANTED; 377 F.2D 555, VACATED AND REMANDED. 


PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF CARAFAS V. LAVALLEE,
ANTE, P. 234. 

HOWARD R. LONERGAN FOR PETITIONER. 

ROBERT Y. THORTON, ATTORNEY GENERAL OF OREGON, AND DAVID H. BLUNT,
ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :






UNITED STATES V. O'BRIEN, 391 U.S. 367 


       UNITED STATES V. O'BRIEN. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT. 

        NO. 232.  ARGUED JANUARY 24, 1968.-- DECIDED MAY 27, 1968. 

           /1/ 


O'BRIEN BURNED HIS SELECTIVE SERVICE REGISTRATION CERTIFICATE BEFORE
A SIZABLE CROWD IN ORDER TO INFLUENCE OTHERS TO ADOPT HIS ANTIWAR
BELIEFS.  HE WAS INDICTED, TRIED, AND CONVICTED FOR VIOLATING 50 U.S.C.
APP. 462(B), A PART OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT,
SUBDIVISION (3) OF  WHICH APPLIES TO ANY PERSON "WHO FORGES, ALTERS,
KNOWINGLY DESTROYS, KNOWINGLY MUTILATES, OR IN ANY MANNER CHANGES ANY
SUCH CERTIFICATE . . . ," THE WORDS ITALICIZED HEREIN HAVING BEEN ADDED
BY AMENDMENT IN 1965.  THE DISTRICT COURT REJECTED O'BRIEN'S ARGUMENT
THAT THE AMENDMENT WAS UNCONSTITUTIONAL BECAUSE IT WAS ENACTED TO
ABRIDGE FREE SPEECH AND SERVED NO LEGITIMATE LEGISLATIVE PURPOSE.  THE
COURT OF APPEALS HELD THE 1965 AMENDMENT UNCONSTITUTIONAL UNDER THE
FIRST AMENDMENT AS SINGLING OUT FOR SPECIAL TREATMENT PERSONS ENGAGED
IN PROTESTS, ON THE GROUND THAT CONDUCT UNDER THE 1965 AMENDMENT WAS
ALREADY PUNISHABLE SINCE A SELECTIVE SERVICE SYSTEM REGULATION REQUIRED
REGISTRANTS TO KEEP THEIR REGISTRATION CERTIFICATES IN THEIR "PERSONAL
POSSESSION AT ALL TIMES," 32 CFR 1617.1, AND WILFUL VIOLATION OF
REGULATIONS PROMULGATED UNDER THE ACT WAS MADE CRIMINAL BY 50 U.S.C.
APP. 462(B)(6).  THE COURT, HOWEVER, UPHELD O'BRIEN'S CONVICTION UNDER
SEC. 426(B)(6), WHICH IN ITS VIEW MADE VIOLATION OF THE NONPOSSESSION
REGULATION A LESSER INCLUDED OFFENSE OF THE CRIME DEFINED BY THE 1965
AMENDMENT.  HELD: 

1.  THE 1965 AMENDMENT TO 50 U.S.C. APP. 462(B)(3) IS CONSTITUTIONAL
AS APPLIED IN THIS CASE.  PP. 375, 376-382. 

(A) THE 1965 AMENDMENT PLAINLY DOES NOT ABRIDGE FREE SPEECH ON ITS
FACE.  P. 375. 

(B) WHEN "SPEECH" AND "NONSPEECH" ELEMENTS ARE COMBINED IN THE SAME
COURSE OF CONDUCT, A SUFFICIENTLY IMPORTANT GOVERNMENTAL INTEREST IN
REGULATING THE NONSPEECH ELEMENT CAN JUSTIFY INCIDENTAL LIMITATIONS ON
FIRST AMENDMENT FREEDOMS.  P. 376. 

(C) A GOVERNMENTAL REGULATION IS SUFFICIENTLY JUSTIFIED IF IT IS
WITHIN THE CONSTITUTIONAL POWER OF THE GOVERNMENT AND FURTHERS AN
IMPORTANT OR SUBSTANTIAL GOVERNMENTAL INTEREST UNRELATED TO THE
SUPPRESSION OF FREE EXPRESSION, AND IF THE INCIDENTAL RESTRICTION OR
ALLEGED FIRST AMENDMENT FREEDOM IS NO GREATER THAN IS ESSENTIAL TO THAT
INTEREST.  THE 1965 AMENDMENT MEETS ALL THESE REQUIREMENTS.  P. 377. 

(D) THE 1965 AMENDMENT CAME WITHIN CONGRESS'"BROAD AND SWEEPING"
POWER TO RAISE AND SUPPORT ARMIES AND MAKE ALL LAWS NECESSARY TO THAT
END.  P. 377. 

(E) THE REGISTRATION CERTIFICATE SERVES PURPOSES IN ADDITION TO
INITIAL NOTIFICATION, E.G., IT PROVES THAT THE DESCRIBED INDIVIDUAL HAS
REGISTERED FOR THE DRAFT; FACILITATES COMMUNICATION BETWEEN REGISTRANTS
AND LOCAL BOARDS; AND PROVIDES A REMINDER THAT THE REGISTRANT MUST
NOTIFY HIS LOCAL BOARD OF CHANGES IN ADDRESS OR STATUS.  THE REGULATORY
SCHEME INVOLVING THE CERTIFICATES INCLUDES CLEARLY VALID PROHIBITIONS
AGAINST ALTERATION, FORGERY, OR SIMILAR DECEPTIVE MISUSE.  PP. 378
380. 

(F) THE PRE-EXISTENCE OF THE NONPOSSESSION REGULATION DOES NOT
NEGATE CONGRESS' CLEAR INTEREST IN PROVIDING ALTERNATIVE STATUTORY
AVENUES OF PROSECUTION TO ASSURE ITS INTEREST IN PREVENTING DESTRUCTION
OF THE SELECTIVE SERVICE CERTIFICATES.  P. 380. 

(G) THE GOVERNMENTAL INTERESTS PROTECTED BY THE 1965 AMENDMENT AND
THE NONPOSSESSION REGULATION, THOUGH OVERLAPPING, ARE NOT IDENTICAL. 
PP. 380-381. 

(H) THE 1965 AMENDMENT IS A NARROW AND PRECISELY DRAWN PROVISION
WHICH SPECIFICALLY PROTECTS THE GOVERNMENT'S SUBSTANTIAL INTEREST IN AN
EFFICIENT AND EASILY ADMINISTERED SYSTEM FOR RAISING ARMIES.  PP. 381
382. 

(I) O'BRIEN WAS CONVICTED ONLY FOR THE WILFUL FRUSTRATION OF THAT
GOVERNMENTAL INTEREST.  THE NONCOMMUNICATIVE IMPACT OF HIS CONDUCT FOR
WHICH HE WAS CONVICTED MAKES HIS CASE READILY DISTINGUISHABLE FROM
STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931).  P. 382. 

2.  THE 1965 AMENDMENT IS CONSTITUTIONAL AS ENACTED.  PP. 382-385. 

(A) CONGRESS' PURPOSE IN ENACTING THE LAW AFFORDS NO BASIS FOR
DECLARING AN OTHERWISE CONSTITUTIONAL STATUTE INVALID.  MCCRAY V.
UNITED STATES, 195 U.S. 27 (1904).  PP. 383384. 

(B) GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233 (1936) AND
GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960), DISTINGUISHED.  PP. 384
385. 

376 F.2D 538, VACATED; JUDGMENT AND SENTENCE OF DISTRICT COURT
REINSTATED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

ON THE MORNING OF MARCH 31, 1966, DAVID PAUL O'BRIEN AND THREE
COMPANIONS BURNED THEIR SELECTIVE SERVICE REGISTRATION CERTIFICATES ON
THE STEPS OF THE SOUTH BOSTON COURTHOUSE.  A SIZABLE CROWD, INCLUDING
SEVERAL AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION, WITNESSED THE
EVENT.  /1/  IMMEDIATELY AFTER THE BURNING, MEMBERS OF THE CROWD BEGAN
ATTACKING O'BRIEN AND HIS COMPANIONS.  AN FBI AGENT USHERED O'BRIEN TO
SAFETY INSIDE THE COURTHOUSE.  AFTER HE WAS ADVISED OF HIS RIGHT TO
COUNSEL AND TO SILENCE, O'BRIEN STATED TO FBI AGENTS THAT HE HAD BURNED
HIS REGISTRATION CERTIFICATE BECAUSE OF HIS BELIEFS, KNOWING THAT HE
WAS VIOLATING FEDERAL LAW.  HE PRODUCED THE CHARRED REMAINS OF THE
CERTIFICATE, WHICH, WITH HIS CONSENT, WERE PHOTOGRAPHED. 

FOR THIS ACT, 0'BRIEN WAS INDICTED, TRIED, CONVICTED, AND SENTENCED
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. 
/2/  HE DID NOT CONTEST THE FACT THAT HE HAD BURNED THE CERTIFICATE. 
HE STATED IN ARGUMENT TO THE JURY THAT HE BURNED THE CERTIFICATE
PUBLICLY TO INFLUENCE OTHERS TO ADOPT HIS ANTIWAR BELIEFS, AS HE PUT
IT, "SO THAT OTHER PEOPLE WOULD REEVALUATE THEIR POSITIONS WITH
SELECTIVE SERVICE, WITH THE ARMED FORCES, AND REEVALUATE THEIR PLACE IN
THE CULTURE OF TODAY, TO HOPEFULLY CONSIDER MY POSITION." 

THE INDICTMENT UPON WHICH HE WAS TRIED CHARGED THAT HE "WILLFULLY
AND KNOWINGLY DID MUTILATE, DESTROY, AND CHANGE BY BURNING . . . (HIS)
REGISTRATION CERTIFICATE (SELECTIVE SERVICE SYSTEM FORM NO. 2); IN
VIOLATION OF TITLE 50, APP., U.S.C.  SECTION 462(B)."  SECTION 462(B)
IS PART OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT OF 1948. 
AMENDED BY CONGRESS IN 1965, 79 STAT. 586 (ADDING THE WORDS ITALICIZED
BELWO), SO THAT AT THE TIME O'BRIEN BURNED HIS CERTIFICATE AN OFFENSE
WAS COMMITTED BY ANY PERSON 

"WHO FORGES, ALTERS, KNOWINGLY DESTORYS, KNOWINGLY MUTILATES, OR IN
ANY MANNER CHANGES ANY SUCH CERTIFICATE . . . ."  IN THE DISTRICT
COURT, O'BRIEN ARGUED THAT THE 1965 AMENDMENT PROHIBITING THE KNOWING
DESTRUCTION OR MUTILATION OF CERTIFICATES WAS UNCONSTITUTIONAL BECAUSE
IT WAS ENACTED TO ABRIDGE FREE SPEECH, AND BECAUSE IT SERVED NO
LEGITIMATE LEGISLATIVE PURPOSE.  /3/ THE DISTRICT COURT REJECTED THESE
ARGUMENTS, HOLDING THAT THE STATUTE ON ITS ?ACE DID NOT ABRIDGE FIRST
AMENDMENT RIGHTS, THAT THE COURT WAS NOT COMPETENT TO INQUIRE INTO THE
MOTIVES OF CONGRESS IN ENACTING THE 1965 AMENDMENT, AND THAT THE
AMENDMENT WAS A REASONABLE EXERCISE OF THE POWER OF CONGRESS TO RAISE
ARMIES. 

ON APPEAL, THE COURT OF APPEALS FOR THE FIRST CIRCUIT HELD THE 1965
AMENDMENT UNCONSTITUTIONAL AS A LAW ABRIDGING FREEDOM OF SPEECH.  /4/
AT THE TIME THE AMENDMENT WAS ENACTED, A REGULATION OF THE SELECTIVE
SERVICE SYSTEM REQUIRED REGISTRANTS TO KEEP THEIR REGISTRATION
CERTIFICATES IN THEIR "PERSONAL POSSESSION AT ALL TIMES."  32 CFR
1617.1 (1962).  /5/  WILFUL VIOLATIONS OF REGULATIONS PROMULGATED
PURSUANT TO THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT WERE MADE
CRIMINAL BY STATUTE.  50 U.S.C. APP. 462(B)(6).  THE COURT OF APPEALS,
THEREFORE, WAS OF THE OPINION THAT CONDUCT PUNISHABLE UNDER THE 1965
AMENDMENT WAS ALREADY PUNISHABLE UNDER THE NONPOSSESSION REGULATION,
AND CONSEQUENTLY THAT THE AMENDMENT SERVED NO VALID PURPOSE; FURTHER,
THAT IN LIGHT OF THE PRIOR REGULATION, THE AMENDMENT MUST HAVE BEEN
"DIRECTED AT PUBLIC AS DISTINGUISHED FROM PRIVATE  DESTRUCTION."  ON
THIS BASIS, THE COURT CONCLUDED THAT THE 1965 AMENDMENT RAN AFOUL OF
THE FIRST AMENDMENT BY SINGLING OUT PERSONS ENGAGED IN PROTESTS FOR
SPECIAL TREATMENT.  THE COURT RULED, HOWEVER, THAT O'BRIEN'S CONVICTION
SHOULD BE AFFIRMED UNDER THE STATUTORY PROVISION, 50 U.S.C. APP.
462(B)(6), WHICH IN ITS VIEW MADE VIOLATION OF THE NONPOSSESSION
REGULATION A CRIME, BECAUSE IT REGARDED SUCH VIOLATION TO BE A LESSER
INCLUDED OFFENSE OF THE CRIME DEFINED BY THE 1965 AMENDMENT.  /6/ 

THE GOVERNMENT PETITIONED FOR CERTIORARI IN NO. 232, ARGUING THAT
THE COURT OF APPEALS ERRED IN HOLDING THE STATUTE UNCONSTITUTIONAL, AND
THAT ITS DECISION CONFLICTED WITH DECISIONS BY THE COURTS OF APPEALS
FOR THE SECOND /7/  AND EIGHTH CIRCUITS /8/  UPHOLDING THE 1965
AMENDMENT AGAINST IDENTICAL CONSTITUTIONAL CHALLENGES.  O'BRIEN CROSS
PETITIONED FOR CERTIORARI IN NO. 233, ARGUING THAT THE COURT OF APPEALS
ERRED IN SUSTAINING HIS CONVICTION ON THE BASIS OF A CRIME OF WHICH HE
WAS NEITHER CHARGED NOR TRIED.  WE GRANTED THE GOVERNMENT'S PETITION TO
RESOLVE THE CONFLICT IN THE CIRCUITS, AND WE ALSO GRANTED O'BRIEN'S
CROSS-PETITION.  WE HOLD THAT THE 1965 AMENDMENT IS CONSTITUTIONAL BOTH
AS ENACTED AND AS APPLIED.  WE THEREFORE VACATE THE JUDGMENT OF THE
COURT OF APPEALS AND REINSTATE THE JUDGMENT AND SENTECNE OF THE
DISTRICT COURT WITHOUT REACHING THE ISSUE RAISED BY O'BRIEN IN NO.
233. 

        I. 

WHEN A MALE REACHES THE AGE OF 18, HE IS REQUIRED BY THE UNIVERSAL
MILITARY TRAINING AND SERVICE ACT TO REGISTER WITH A LOCAL DRAFT
BOARD.  /9/  HE IS ASSIGNED A SELECTIVE SERVICE NUMBER, /10/  AND
WITHIN FIVE DAYS HE IS ISSUED A REGISTRATION CERTIFICATE (SSS FORM NO.
2).  /11/  SUBSEQUENTLY, AND BASED ON A QUESTIONNAIRE COMPLETED BY THE
REGISTRANT, /12/  HE IS ASSIGNED A CLASSIFICATION DENOTING HIS
ELIGIBILITY FOR INDUCTION, /13/ AND "(AS SOON AS PRACTICABLE"
THEREAFTER HE IS ISSUED A NOTICE OF CLASSIFICATION (SSS FORM NO. 110). 
/14/  THIS INITIAL CLASSIFICATION IS NOT NECESSARILY PERMANENT, /15/
AND IF IN THE INTERIM BEFORE INDUCTION THE REGISTRANT'S STATUS CHANGES
IN SOME RELEVANT WAY, HE MAY BE RECLASSIFIED.  /16/  AFTER SUCH A
RECLASSIFICATION, THE LOCAL BOARD "AS SOON AS PRACTICABLE" ISSUES TO
THE REGISTRANT A NEW NOTICE OF CLASSIFICATION.  /17/ 

BOTH THE REGISTRATION AND CLASSIFICATION CERTIFICATES ARE SMALL
WHITE CARDS, APPROXIMATELY 2 BY 3 INCHES.  THE REGISTRATION CERTIFICATE
SPECIFIES THE NAME OF THE REGISTRANT, THE DATE OF REGISTRATION, AND THE
NUMBER AND ADDRESS OF THE LOCAL BOARD WITH WHICH HE IS REGISTERED. 
ALSO INSCRIBED UPON IT ARE THE DATE AND PLACE OF THE REGISTRANT'S
BIRTH, HIS RESIDENCE AT REGISTRATION, HIS PHYSICAL DESCRIPTION, HIS
SIGNATURE, AND HIS SELECTIVE SERVICE NUMBER.  THE SELECTIVE SERVICE
NUMBER ITSELF INDICATES HIS STATE OF REGISTRATION, HIS LOCAL BOARD, HIS
YEAR OF BIRTH, AND HIS CHRONOLOGICAL POSITION IN THE LOCAL BOARD'S
CLASSIFICATION RECORD.  /18/ 

THE CLASSIFICATION CERTIFICATE SHOWS THE REGISTRANT'S NAME,
SELECTIVE SERVICE NUMBER, SIGNATURE, AND ELIGIBILITY CLASSIFICATION. 
IT SPECIFIES WHETHER HE WAS SO CLASSIFIED BY HIS LOCAL BOARD, AN APPEAL
BOARD, OR THE PRESIDENT.  IT CONTAINS THE ADDRESS OF HIS LOCAL BOARD
AND THE DATE THE CERTIFICATE WAS MAILED. 

BOTH THE REGISTRATION AND CLASSIFICATION CERTIFICATES BEAR NOTICES
THAT THE REGISTRANT MUST NOTIFY HIS LOCAL BOARD IN WRITING OF EVERY
CHANGE IN ADDRESS, PHYSICAL CONDITION, AND OCCUPATIONAL, MARITAL,
FAMILY, DEPENDENCY, AND MILITARY STATUS, AND OF ANY OTHER FACT WHICH
MIGHT CHANGE HIS CLASSIFICATION.  BOTH ALSO CONTAIN A NOTICE THAT THE
REGISTRANT'S SELECTIVE SERVICE NUMBER SHOULD APPEAR ON ALL
COMMUNICATIONS TO HIS LOCAL BOARD. 

CONGRESS DEMONSTRATED ITS CONCERN THAT CERTIFICATES ISSUED BY THE
SELECTIVE SERVICE SYSTEM MIGHT BE ABUSED WELL BEFORE THE 1965 AMENDMENT
HERE CHALLENGED.  THE 1948 ACT, 62 STAT. 604, ITSELF PROHIBITED MANY
DIFFERENT ABUSES INVOLVING "ANY REGISTRATION CERTIFICATE, . . . OR BY
THE PROVISIONS OF THIS TITLE, OR RULES OR REGULATIONS PROMULGATED
HEREUNDER . . . ."  62 STAT. 622.  UNDER SECS. 12(B)(1)-(5) OF THE 1948
ACT, IT WAS UNLAWFUL (1) TO TRANSFER A CERTIFICATE TO AID A PERSON IN
MAKING FALSE IDENTIFICATION; (2) TO POSSESS A CERTIFICATE NOT DULY
ISSUED WITH THE INTENT OF USING IT FOR FALSE IDENTIFICATION; (3) TO
FORGE, ALTER, "OR IN ANY MANNER" CHANGE A CERTIFICATE OR GRAPH OR MAKE
AN IMITATION OF A CERTIFICATE FOR THE PURPOSE OF FALSE IDENTIFICATION;
AND (5) TO POSSESS A COUNTERFEITED OR ALTERED CERTIFICATE.  62 STAT.
622.  IN ADDITION, AS PREVIOULSLY MENTIONED, REGULATIONS OF THE
SELECTIVE SERVICE SYSTEM REQUIRED REGISTRANTS TO KEEP BOTH THEIR
REGISTRATION AND CLASSIFICATION CERTIFICATES IN THEIR PERSONAL
POSSESSION AT ALL TIMES.  32 CFR 1617.1 (1962) (REGISTRATION
CERTIFICATES); /19/  32 CFR 1623.5 (1962) (CLASSIFICATION
CERTIFICATES).  /20/  AND SEC.12(B)(6) OF THE ACT, 62 STAT. 622, MADE
KNOWING VIOLATION OF ANY PROVISION OF THE ACT OR RULES AND REGULATIONS
PROMULGATED PURSUANT THERETO A FELONY. 

BY THE 1965 AMENDMENT, CONGRESS ADDED TO SEC. 12(B)(3) OF THE 1948
ACT THE PROVISION HERE AT ISSUE, SUBJECTING TO CRIMINAL LIABILITY NOT
ONLY ONE WHO "FORGES, ALTERS, OR IN ANY MANNER CHANGES" BUT ALSO ONE
WHO KNOWINGLY DESTROYS, (OR) KNOWINGLY MUTILATES" A CERTIFICATE.  WE
NOTE AT THE OUTSET THAT THE 1965 AMENDMENT PLAINLY DOES NOT ABRIDGE
FREE SPEECH ON ITS FACE, AND WE DO NOT UNDERSTAND O'BRIEN TO ARGUE
OTHERWISE.  AMENDED SEC. 12(B)(3) ON ITS FACE DEALS WITH CONDUCT HAVING
NO CONNECTION WITH SPEECH.  IT PROHIBITS THE KNOWING DESTRUCTION OF
CERTIFICATES ISSUED BY THE SELECTIVE SERVICE SYSTEM, AND THERE IS
NOTHING NECESSARILY EXPRESSIVE ABOUT SUCH CONDUCT.  THE AMENDMENT DOES
NOT DISTINGUISH BETWEEN ONLY DESTRUCTION ENGAGED IN FOR THE PURPOSE OF
EXPRESSING VIEWS.  COMPARE STROMBERG V. CALIFORNIA, 283 U.S. 359
(1931).  /21/  A LAW PROHIBITING DESTRUCTION OF SELECTIVE SERVICE
CERTIFICATES NO MORE ABRIDGES FREE SPEECH ON ITS FACE THAN A MOTOR
VEHICLE LAW PROHIBITING THE DESTRUCTION OF DRIVERS' LICENSES, OR A TAX
LAW PROHIBITING THE DESTRUCTION OF DRIVERS' LICENSES, OR A TAX LAW
PROHIBITING THE DESTRUCTION OF BOOKS AND RECORDS. 

O'BRIEN NONETHELESS ARGUES THAT THE 1965 AMENDMENT IS
UNCONSTITUTIONAL IN ITS APPLICATION TO HIM, AND IS UNCONSTITUTIONAL AS
ENACTED BECAUSE WHAT HE CALLS THE "PURPOSE" OF CONGRESS WAS "TO
SUPPRESS FREEDOM OF SPEECH."  WE CONSIDER THESE ARGUMENTS SEPARATELY. 

        II. 

O'BRIEN FIRST ARGUES THAT THE 1965 AMENDMENT IS UNCONSTITUTIONAL AS
APPLIED TO HIM BECAUSE HIS ACT OF BURNING HIS REGISTRATION CERTIFICATE
WAS PROTECTED "SYMBOLIC SPEECH" WITHIN THE FIRST AMENDMENT.  HIS
ARGUMENT IS THAT FREEDOM OF EXPRESSION WHICH THE FIRST AMENDMENT
GUARANTEES INCLUDES ALL MODES OF "COMMUNICATION OF IDEAS BY CONDUCT,"
AND THAT HIS CONDUCT IS WITHIN THIS DEFINITION BECAUSE HE DID IT IN
"DEMONSTRATION AGAINST THE WAR AND AGAINST THE DRAFT." 

WE CANNOT ACCEPT THE VIEW THAT AN APPARENTLY LIMITLESS VARIETY OF
CONDUCT CAN BE LABELED "SPEECH" WHENEVER THE PERSON ENGAGING IN THE
CONDUCT INTENDS THEREBY TO EXPRESS AN IDEA.  HOWEVER, EVEN ON THE
ASSUMPTION THAT THE ALLEGED COMMUNICATIVE ELEMENT IN O'BRIEN'S CONDUCT
IS SUFFICIENT TO BRING INTO PLAY THE FIRST AMENDMENT, IT DOES NOT
NECESSARILY FOLLOW THAT THE DESTRUCTION OF A REGISTRATION CERTIFICATE
IS CONSTITUTIONALLY PROTECTED ACTIVITY.  THIS COURT HAS HELD THAT WHEN
"SPEECH" AND "NONSPEECH" ELEMENTS ARE COMBINED IN THE SAME COURSE OF
CONDUCT, A SUFFICIENTLY IMPORTANT GOVERNMENTAL INTEREST IN REGULATING
THE NONSPEECH ELEMENT CAN JUSTIFY INCIDENTAL LIMITATIONS ON FIRST
AMENDMENT FREEDOMS.  TO CHARACTERIZE THE QUALITY OF THE GOVERNMENTAL
INTEREST WHICH MUST APPEAR, THE COURT HAS EMPLOYED A VARIETY OF
DESCRIPTIVE TERMS: COMPELLING; /22/  SUBSTANTIAL; /23/ SUBORDINATING;
/24/  PARAMOUNT; /25/  COGENT; /26/ STRONG.  /27/  WHATEVER IMPRECISION
INHERES IN THESE TERMS, WE THINK IT CLEAR THAT A GOVERNMENT REGULATION
IS SUFFICIENTLY JUSTIFIED IF IT IS WITHIN THE CONSTITUTIONAL POWER OF
THE GOVERNMENT; IF IT FURTHERS AN IMPORTANT OR SUBSTANTIAL GOVERNMENTAL
INTEREST; IF THE GOVERNMENTAL INTEREST IS UNRELATED TO THE RESTRICTION
ON ALLEGED FIRST AMENDMENT FREEDOMS IS NO GREATER THAN IS ESSENTIAL TO
THE FURTHERANCE OF THAT INTEREST.  WE FIND THAT THE 1965 AMENDMENT TO
SEC. 12(B)(3) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT MEETS
ALL OF THESE REQUIREMENTS, AND CONSE CONSEQUENTLY THAT O'BRIEN CAN BE
CONSTITUTIONALLY CONVICTED FOR VIOLATING IT. 

THE CONSTITUTIONAL POWER OF CONGRESS TO RAISE AND SUPPORT ARMIES AND
TO MAKE ALL LAWS NECESSARY AND PROPER TO THAT END IS BROAD AND
SWEEPING.  LICHTER V. UNITED STATES, 334 U.S. 742, 755-758 (1948);
SELECTIVE DRAFT LAW CASES, 245 U.S. 366 (1918; SEE ALSO EX PARTE
QUIRIN, 317 U.S. 1, 25-26 (1942).  THE POWER OF CONGRESS TO CLASSIFY
AND CONSCRIPT MANPOWER FOR MILITARY SERVICE IS "BEYOND QUESTION." 
LICHTER V. UNITED STATES, SUPRA, AT 756; SELECTIVE DRAFT LAW CASES,
SUPRA.  PURSUANT TO THIS POWER, CONGRESS MAY ESTABLISH A SYSTEM OF
REGISTRATION FOR INDIVIDUALS LIABLE FOR TRAINING AND SERVICE, AND MAY
REQUIRE SUCH INDIVIDUALS WITHIN REASON TO COOPERATE IN THE REGISTRATION
SYSTEM.  THE ISSUANCE OF CERTIFICATES INDICATING THE REGISTRATION AND
ELIGIBILITY CLASSIFICATION OF INDIVIDUALS IS A LEGITIMATE AND
SUBSTANTIAL ADMINISTRATIVE AID IN THE FUNCTIONING OF THIS SYSTEM.  AN
LEGISLATION TO INSURE THE CONTINUING AVAILABILITY OF ISSUED
CERTIFICATES SERVES A LEGITIMATE AND SUBSTANTIAL PURPOSE IN THE
SYSTEM'S ADMINISTRATION. 

O'BRIEN'S ARGUMENT TO THE CONTRARY IS NECESSARILY PREMISED UPON HIS
UNREALISTIC CHARACTERIZATION OF SELECTIVE SERVICE CERTIFICATES.  HE
ESSENTIALLY AOPTS THE POSITION THAT SUCH CERTIFICATES ARE SO MANY
PIECES OF PAPER DESIGNED TO NOTIFY REGISTRANTS OF THEIR REGISTRATION OR
CLASSIFICATION, TO BE RETAINED OR TOSSED IN THE WASTEBASKET ACCORDING
TO E CONVENIENCE OR TASTE OF THE REGISTRANT.  ONCE THE REGISTRANT HAS
RECEIVED NOTIFICATION, ACCORDING TO THIS VIEW, THERE IS NO REASON FOR
HIM TO RETAIN THE CERTIFICATES.  O'BRIEN NOTES THAT MOST OF THE
INFORMATION ON A REGISTRATION CERTIFICATE SERVES NO NOTIFICATION
PURPOSE AT ALL; THE REGISTRANT HARDLY NEEDS TO BE TOLD HIS ADDRESS AND
PHYSICAL CHARACTERISTICS.  WE AGREE THAT THE REGISTRATION CERTIFICATE
CONTAINS MUCH INFORMATION OF WHICH THE REGISTRANT NEEDS NO
NOTIFICATION.  THIS CIRCUMSTANCE, HOWEVER, DOES NOT LEAD TO THE
CONCLUSION THAT THE CERTIFICATE SERVES NO PURPOSE, BUT THAT,LIKE THE
CLASSIFICATION CERTIFICATE, IT SERVES PURPOSES IN ADDITION TO INITIAL
NOTIFICATION.  MANY OF THESE PURPOSES WOULD BE DEFEATED BY THE
CERTIFICATES' DESTRUCTION OR MUTILATION.  AMONG THESE ARE: 

1.  THE REGISTRATION CERTIFICATE SERVES AS PROOF THAT THE INDIVIDUAL
DESCRIBED THEREON HAS REGISTERED FOR THE DRAFT.  THE CLASSIFICATION
CERTIFICATE SHOWS THE ELIGIBILITY CLASSIFICATION OF A NAMED BUT
UNDESCRIBED INDIVIDUAL.  VOLUNTARILY DISPLAYING THE TWO CERTIFICATES IS
AN EASY AND PAINLESS WAY FOR A YOUNG MAN TO DISPEL A QUESTION AS TO
WHETHER HE MIGHT BE DELINQUENT IN HIS SELECTIVE SERVICE OBLIGATIONS. 
CORRESPONDINGLY, THE AVAILABILITY OF THE CERTIFICATES FOR SUCH DISPLAY
RELIEVES THE SELECTIVE SERVICE SYSTEM OF THE ADMINISTRATIVE BURDEN IT
WOULD OTHERWISE HAVE IN VERIFYING THE REGISTRATION AND CLASSIFICATION
OF ALL SUSPECTED DELINQUENTS.  FURTHER, SINCE BOTH CERTIFICATES ARE IN
THE NATURE OF "RECEIPTS" ATTESTING THAT THE REGISTRANT HAS DONE WHAT
THE LAW REQUIRES, IT IS IN THE INTEREST OF THE JUST AND EFFICIENT
ADMINISTRATION OF THE SYSTEM THAT THEY BE CONTINUALLY AVAILABLE, IN THE
EVENT, FOR EXAMPLE, OF A MIX-UP IN THE REGISTRANT'S FILE. 
ADDITIONALLY, IN A TIME OF NATIONAL CRISIS, REASONABLE AVAILABILITY TO
EACH REGISTRANT OF THE TWO SMALL CARDS ASSURES A RAPID AND
UNCOMPLICATED MEANS FOR DETERMINING HIS FITNESS FOR IMMEDIATE
INDUCTION, NO MATTER HOW DISTANT IN OUR MOBILE SOCIETY HE MAY BE FROM
HIS LOCAL BOARD. 

2.  THE INFORMATION SUPPLIED ON THE CERTIFICATES FACILITATES
COMMUNICATION BETWEEN REGISTRANTS AND LOCAL BOARDS, SIMPLIFYING THE
SYSTEM AND BENEFITING ALL CONCERNED.  TO BEGIN WITH, EACH CERTIFICATE
BEARS THE ADDRESS OF THE REGISTRANT'S LOCAL BOARD, AN ITEM UNLIKELY TO
BE COMMITTED TO MEMORY.  FURTHER, EACH CARD BEARS THE REGISTRANT'S
NUMBER READILY AVAILABLE SO THAT HE CAN COMMUNICATE IT TO HIS LOCAL
BOARD WHEN HE SUPPLIES OR REQUESTS INFORMATION CAN MAKE SIMPLER THE
BOARD'S TASK IN LOCATING HIS FILE.  FINALLY, A REGISTRANT'S INQUIRY,
PARTICULARLY THROUGH A LOCAL BOARD OTHER THAN HIS OWN, CONCERNING HIS
ELIGIBILITY STATUS IS FREQUENTLY ANSWERABLE SIMPLY ON THE BASIS OF HIS
CLASSIFICATION CERTIFICATE; WHEREAS, IF THE CERTIFICATE WER NOT
REASONABLY AVAILABLE AND THE REGISTRANT WERE UNCERTAIN OF HIS
CLASSIFICATION, THE TASK OF ANSWERING HIS QUESTIONS WOULD BE
CONSIDERABLY COMPLICATED. 

3.  BOTH CERTIFICATES CARRY CONTINUAL REMINDERS THAT THE REGISTRANT
MUST NOTIFY HIS LOCAL BOARD OF ANY CHANGE OF ADDRESS, AND OTHER
SPECIFIED CHANGES IN HIS STATUS.  THE SMOOTH FUNCTIONING OF THE SYSTEM
REQUIRES THAT LOCAL BOARDS BE CONTINUALLY AWARE OF THE STATUS AND
WHEREABOUTS OF REGISTRANTS, AND THE DESTRUCTION OF CERTIFICATES
DEPRIVES THE SYSTEM OF A POTENTIALLY USEFUL NOTICE DEVICE. 

4.  THE REGULATORY SCHEME INVOLVING SELECTIVE SERVICE CERTIFICATES
INCLUDES CLEARLY VALID PROHIBITIONS AGAINST THE ALTERATION, FORGERY, OR
SIMILAR DECEPTIVE MISUSE OF CERTIFICATES.  THE DESTRUCTION OR
MUTILATION OF CERTIFICATES OBVIOUSLY INCREASES THE DIFFICULTY OF
DETECTING AND TRACING ABUSES SUCH AS THESE.  FURTHER, A MUTILATED
CERTIFICATE MIGHT ITSELF BE USED FOR DECEPTIVE PURPOSES. 

THE MANY FUNCTIONS PERFORMED BY SELECTIVE SERVICE CERTIFICATES
ESTABLISH BEYOND DOUBT THAT CONGRESS HAS A LEGITIMATE AND SUBSTANTIAL
INTEREST IN PREVENTING THEIR WANTON AND UNRESTRAINED DESTRUCTION AND
ASSURING THEIR CONTINUING AVAILABILITY BY PUNISHING PEOPLE WHO
KNOWINGLY AND WILFULLY DESTROY OR MUTILATE THEM.  AND WE ARE
UNPERSUADED THAT THE PRE-EXISTENCE OF THE NONPOSSESSION REGULATIONS IN
ANY WAY NEGATES THIS INTEREST. 

IN THE ABSENCE OF A QUESTION AS TO MULTIPLE PUNISHMENT, IT HAS NEVER
BEEN USGGESTED THAT THERE IS ANYTHING IMPROPER IN CONGRESS' PROVIDING
ALTERNATIVE STATUTORY AVENUES OF PROSECUTION TO ASSURE THE EFFECTIVE
PROTECTION OF ONE AND THE SAME INTEREST.  COMPARE THE MAJORITY AND
DISSENTING OPINIONS IN GORE V. UNITED STATES, 357 U.S. 386 (1958). 
/28/  HERE, THE PRE-EXISTING AVENUE OF PROSECUTION WAS NOT EVEN
STATUTORY.  REGULATIONS MAY BE MODIFIED OR REVOKED FROM TIME TO TIME BY
ADMINISTRATIVE DISCRETION.  CERTAINLY, THE CONGRESS MAY CHANGE OR
SUPPLEMENT A REGULATION. 

EQUALLY IMPORTANT, A COMPARISON OF THE REGULATIONS WITH THE 1965
AMENDMENT INDICATES THAT THEY PROTECT OVERLAPPING BUT NOT IDENTICAL
GOVERNMENTAL INTERESTS, AND THAT THEY REACH SOMEWHAT DIFFERENT CLASSES
OF WRONGDOERS.  /29/  THE GRAVAMEN OF THE OFFENSE DEFINED BY THE
STATUTE IS THE DELIBERATE RENDERING OF CERTIFICATES UNAVAILABLE FOR THE
VARIOUS PURPOSES WHICH THEY MAY SERVE.  WHETHER REGISTRANTS KEEP THEIR
CERTIFICATES IN THEIR PERSONAL POSSESSION AT ALL TIMES, AS REQUIRED BY
THE REGULATIONS, IS OF NO PARTICULAR CONCERN UNDER THE 1965 AMENDMENT,
AS LONG AS THEY DO NOT MUTILATE OR DESTROY THE CERTIFICATES SO AS TO
RENDER THEM UNAVAILABLE.  ALTHOUGH AS WE NOTE BELOW WE ARE NOT
CONCERNED HERE WITH THE NONPOSSESSION REGULATIONS, IT IS NOT
INAPPROPRIATE TO OBSERVE THAT THE ESSENTIAL ELEMENTS OF NONPOSSESSION
ARE NOT IDENTICAL WITH THOSE OF MUTILATION OR DESTRUCTION.  FINALLY,
THE 1965 AMENDMENT, LIKE SEC. 12(B) WHICH IT AMENDED, IS CONCERNED WITH
ABUSES INVOLVING ANY ISSUED SELECTIVE SERVICE CERTIFICATES, NOT ONLY
WITH THE REGISTRANT'S OWN CERTIFICATES.  THE KNOWING DESTRUCTION OR
MUTILATION OF SOMEONE ELSE'S CERTIFICATES WOULD THEREFORE VIOLATE THE
STATUTE BUT NOT THE NONPOSSESSION REGULATIONS. 

WE THINK IT APPARENT THAT THE CONTINUING AVAILABILITY TO EACH
REGISTRANT OF HIS SELECTIVE SERVICE CERTIFICATES SUBSTANTIALLY FURTHERS
THE SMOOTH AND PROPER FUNCTIONING OF THE SYSTEM THAT CONGRESS HAS
ESTABLISHED TO RAISE ARMIES.  WE THINK IT ALSO APPARENT THAT THE NATION
HAS A VITAL INTEREST IN HAVING A SYSTEM FOR RAISING ARMIES THAT
FUNCTIONS WITH MAXIMUM EFFICIENCY AND IS CAPABLE OF EASILY AND QUICKLY
RESPONDING TO CONTINUALLY CHANGING CIRCUMSTANCES.  FOR THESE REASONS,
THE GOVERNMENT HAS A SUBSTANTIAL INTEREST IN ASSURING THE CONTINUING
AVAILABILITY OF ISSUED SELECTIVE SERVICE CERTIFICATES. 

IT IS EQUALLY CLEAR THAT THE 1965 AMENDMENT SPECIFICALLY PROTECTS
THIS SUBSTANTIAL GOVERNMENTAL INTEREST.  WE PERCEIVE NO ALTERNATIVE
MEANS THAT WOULD MORE PRECISELY AND NARROWLY ASSURE THE CONTINUING
AVAILABILITY OF ISSUED SELECTIVE SERVICE CERTIFICATES THAN A LAW WHICH
PROHIBITS THEIR WILFUL MUTILATION OR DESTRUCTION.  COMPARE SHERBERT V.
VERNER, 374 U.S. 398, 407-408 (1963), AND THE CASES CITED THEREIN.  THE
1965 AMENDMENT PROHIBITS SUCH CONDUCT AND DOES NOTHING MORE.  IN OTHER
WORDS, BOTH THE GOVERNMENTAL INTEREST AND THE OPERATION OF THE 1965
AMENDMENT ARE LIMITED TO THE NONCOMMUNICATIVE ASPECT OF O'BRIEN'S
CONDUCT.  THE GOVERNMENTAL INTEREST AND THE SCOPE OF THE 1965 AMENDMENT
ARE LIMITED TO PREVENTING HARM TO THE SMOOTH AND EFFICIENT FUNCTIONING
OF THE SELECTIVE SERVICE SYSTEM.  WHEN O'BRIEN DELIBERATELY RENDERED
UNAVAILABLE HIS REGISTRATION CERTIFICATE, HE WILFULLY FRUSTRATED THIS
GOVERNMENTAL INTEREST.  FOR THIS NONCOMMUNICATIVE IMPACT OF HIS
CONDUCT, AND FOR NOTHING ELSE, HE WAS CONVICTED. 

THE CASE AT BAR IS THEREFORE UNLIKE ONE WHERE THE ALLEGED
GOVERNMENTAL INTEREST IN REGULATING CONDUCT ARISES IN SOME MEASURE
BECAUSE THE COMMUNICATION ALLEGEDLY INTEGRAL TO THE CONDUCT IS ITSELF
THOUGHT TO BE HARMFUL.  IN STROMBERG V. CALIFORNIA, 283 U.S. 359
(1931), FOR EXAMPLE, THIS COURT STRUCK DOWN A STATUTORY PHRASE WHICH
PUNISHED PEOPLE WHO EXPRESSED THEIR "OPPOSITION TO ORGANIZED
GOVERNMENT" BY DISPLAYING "ANY FLAG, BADGE, BANNER, OR DEVICE."  SINCE
THE STATUTE THERE WAS AIMED AT SUPPRESSING COMMUNICATION IT COULD NOT
BE SUSTAINED AS A REGULATION OF NONCOMMUNICATIVE CONDUCT.  SEE ALSO,
NLRB V. FRUIT & VEGETABLE PACKERS UNION, 377 U.S. 58, 79 (1964)
(CONCURRING OPINION). 

IN CONCLUSION, WE FIND THAT BECAUSE OF THE GOVERNMENT'S SUBSTANTIAL
INTEREST IN ASSURING THE CONTINUING AVAILABILITY OF ISSUED SELECTIVE
SERVICE CERTIFICATES, BECAUSE AMENDED SEC. 462(B) IS AN APPROPRIATELY
NARROW MEANS OF PROTECTING THIS INTEREST AND CONDEMNS ONLY THE
INDEPENDENT NONCOMMUNICATIVE IMPACT OF CONDUCT WITHIN ITS REACH, AND
BECAUSE THE NONCOMMUNICATIVE IMPACT OF O'BRIEN'S ACT OF BURNING HIS
REGISTRATION CERTIFICATE FRUSTRATED THE GOVERNMENT'S INTEREST, A
SUFFICIENT GOVERNMENTAL INTEREST HAS BEEN SHOWN TO JUSTIFY O'BRIEN'S
CONVICTION. 

        III. 

O'BRIEN FINALLY ARGUES THAT THE 1965 AMENDMENT IS UNCONSTITUTIONAL
AS ENACTED BECAUSE WHAT HE CALLS THE "PURPOSE" OF CONGRESS WAS "TO
SUPPRESS FREEDOM OF SPEECH."  WE REJECT THIS ARGUMENT BECAUSE UNDER
SETTLED PRINCIPLES THE PURPOSE OF CONGRESS, AS O'BRIEN USES THAT TERM,
IS NOT A BASIS FOR DECLARING THIS LEGISLATION UNCONSTITUTIONAL. 

IT IS A FAMILIAR PRINCIPLE OF CONSTITUTIONAL LAW THAT THIS COURT
WILL NOT STRIKE DOWN AN OTHERWISE CONSTITUTIONAL STATUTE ON THE BASIS
OF AN ALLEGED ILLICIT LEGISLATIVE MOTIVE.  AS THE COURT LONG AGO
STATED: 

     "THE DECISIONS OF THIS COURT FROM THE BEGINNING LEND NO
SUPPORT

  WHATEVER TO THE ASSUMPTION THAT THE JUDICIARY MAY RESTRAIN THE

EXERCISE OF LAWFUL POWER ON THE ASSUMPTION THAT A WRONGFUL

 PURPOSE OF MOTIVE HAS CAUSED THE POWER TO BE EXERTED."  MCCRAY V.

  UNITED STATES, 195 U.S. 27, 56 (1904 .

THIS FUNDAMENTAL PRINCIPLE OF CONSTITUTIONAL ADJUDICATION WAS
REAFFIRMED AND THE MANY CASES WERE COLLECTED BY MR. JUSTICE BRANDEIS
FOR THE COURT IN ARIZONA V. CALIFORNIA, 283 U.S. 423, 455 (1931). 

INQUIRIES INTO CONGRESSIONAL MOTIVES OR PURPOSES ARE A HAZARDOUS
MATTER.  WHEN THE ISSUE IS SIMPLY THE INTERPRETATION OF LEGISLATION,
THE COURT WILL LOOK TO STATEMENTS BY LEGISLATORS FOR GUIDANCE AS TO THE
PURPOSE OF THE LEGISLATURE, /30 LEGISLATURE, /30/  BECAUSE THE BENEFIT
TO SOUND DECISION-MAKING IN THIS CRUCUMSTANCE IS THOUGHT SUFFICIENT TO
RISK THE POSSIBILITY OF MISREADING CONGRESS' PURPOSE.  IT IS ENTIRELY A
DIFFERENT MATTER WHEN WE ARE ASKED TO VOID A STATUTE THAT IS, UNDER
WELL-SETTLED CRITERIA, CONSTITUTIONAL ON ITS FACE, ON THE BASIS OF WHAT
FEWER THAN A HANDFUL OF CONGRESSMEN SAID ABOUT IT.  WHAT MOTIVATES ONE
LEGISLATOR TO MAKE A SPEECH ABOUT A STATUTE IS NOT NECESSARILY WHAT
MOTIVATES SCORES OF OTHERS TO ENACT IT, AND THE STAKES ARE SUFFICIENTLY
HIGH FOR US TO ESCHEW GUESSWORK.  WE DECLINE TO VOID ESSENTIALLY ON THE
GROUND THAT IT IS UNWISE LEGISLATION WHICH CONGRESS HAD THE UNDOUBTED
POWER TO ENACT AND WHICH COULD BE REENACTED IN ITS EXACT FROM IF THE
SAME OR ANOTHER LEGISLATOR MADE A "WISER" SPEECH ABOUT IT. 

O'BRIEN'S POSITION, AND TO SOME EXTENT THAT OF THE COURT BELOW, REST
UPON A MISUNDERSTANDING OF GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233
(1936), AND GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960).  THESE CASES
STAND, NOT FOR THE PROPOSITION THAT LEGISLATIVE MOTIVE IS A PROPER
BASIS FOR DECLARING A STATUTE UNCONSTITUTIONAL, BUT THAT THE INEVITABLE
EFFECT OF A STATUTE ON ITS FACE MAY RENDER IT UNCONSTITUTIONAL.  THUS,
IN GROSJEAN THE COURT, HAVING CONCLUDED THAT THE RIGHT OF PUBLICATIONS
TO BE FREE FROM CERTAIN KINDS OF TAXES WAS A FREEDOM OF THE PRESS
PROTECTED BY THE FIRST AMENDMENT, STRUCK DOWN A STATUTE WHICH ON ITS
FACE DID NOTHING OTHER THAN IMPOSE JUST SUCH A TAX.  SIMILARLY, IN
GOMILLION, THE COURT SUSTAINED A COMPLAINT WHICH, IF TRUE, ESTABLISHED
THAT THE "INEVITABLE EFFECT," 364 U.S.,AT 341, OF THE REDRAWING OF
MUNICIPAL BOUNDARIES WAS TO DEPRIVE THE PETITIONERS OF THEIR RIGHT TO
VOTE FOR NO REASON OTHER THAN THAT THEY WERE NEGRO.  IN THESE CASES,
THE PURPOSE OF THE LEGISLATION WAS IRRELEVANT, BECAUSE THE INEVITABLE
EFFECT-- THE "NECESSARY SCOPE AND OPERATION," MCCRAY V. UNITED STATES,
195 U.S. 27, 59 (1904)-- ABRIDGED CONSTITUTIONAL RIGHTS.  THE STATUTE
ATTACKED IN THE INSTANT CASE HAS NO SUCH INEVITABLE UNCONSTITUTIONAL
EFFECT, SINCE THE DESTRUCTION OF SELECTIVE SERVICE CERTIFICATES IS IN
NO REPSECT INEVITABLY OR NECESSARILY EXPRESSIVE.  ACCORDINGLY, THE
STATUTE ITSELF IS CONSTITUTIONAL. 

WE THINK IT NOT AMISS, IN PASSING, TO COMMENT UPON O'BRIEN'S
LEGISLATIVE-PURPOSE ARGUMENT.  THERE WAS LITTLE FLOOR DEBATE ON THIS
LEGISLATION IN EITHER HOUSE.  ONLY SENATOR THURMOND COMMENTED ON ITS
SUBSTANTIVE FEATURES IN THE SENATE.  111 CONG.REC.  19746,20433.  AFTER
HIS BRIEF STATEMENT, AND WITHOUT ANY ADDITIONAL SUBSTANTIVE COMMENTS,
THE BILL, H.R. 10306, PASSED THE SENATE.  111 CONG.REC.  20434.  IN THE
HOUSE DEBATE ONLY TWO CONGRESSMEN ADDRESSED THEMSELVES TO THE AMENDMENT
- CONGRESSMEN RIVERS AND BRAY.  111 CONG.REC.  19871, 19 19872.  THE
BILL WAS PASSED AFTER THEIR STATEMENTS WITHOUT ANY FURTHER DEBATE BY A
VOTE OF 393 TO 1.  IT IS PRINCIPALLY ON THE BASIS OF THE STATEMENTS BY
THESE THREE CONGRESSMEN THAT O'BRIEN MAKES HIS CONGRESSIONAL-"PURPOSE"
ARGUMENT.  THEY NOTE THAT IF WE WERE TO EXAMINE LEGISLATIVE PURPOSE IN
THE INSTANT CASE, WE WOULD BE OBLIGED TO CONSIDER NOT ONLY THESE
STATEMENTS BUT ALSO THE MORE AUTHORITATIVE REPORTS OF THE SENATE AND
HOUSE ARMED SERVICES COMMITTEES.  THE PORTIONS OF THOSE REPORTS
EXPLAINING THE PURPOSE OF THE AMENDMENT ARE REPRODUCED IN THE APPENDIX
IN THEIR ENTIRETY.  WHILE BOTH REPORTS MAKE CLEAR A CONCERN WITH THE
"DEFIANT" DESTRUCTION OF SO-CALLED "DRAFT CARDS" AND WITH "OPEN"
ENCOURAGEMENT TO OTHERS TO DESTROY THEIR CARDS, BOTH REPORTS ALSO
INDICATE THAT THIS CONCERN STEMMED FROM AN APPREHENSION THAT
UNRESTRAINED DESTRUCTION OF CARDS WOULD DISRUPT THE SMOOTH FUNCTIONING
OF THE SELECTIVE SERVICE SYSTEM.              IV. 

SINCE THE 1965 AMENDMENT TO SEC. 12(B)(3) OF THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT IS CONSTITUTIONAL AS ENACTED AND AS APPLIED,
THE COURT OF APPEALS SHOULD HAVE AFFIRMED THE JUDGMENT OF CONVICTION
ENTERED BY THE DISTRICT COURT.  ACCORDINGLY, WE VACATE THE JUDGMENT OF
THE COURT OF APPEALS AND REINSTATE THE JUDGMENT AND SENTENCE OF THE
DISTRICT COURT.  THIS DISPOSITION MAKES UNNECESSARY CONSIDERATION OF
O'BRIEN'S CLAIM THAT THE COURT OF APPEALS ERRED IN AFFIRMING HIS
CONVICTION ON THE BASIS OF THE NONPOSSESSION REGULATION.  /31/

             IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

/1/  TOGETHER WITH NO. 233, O'BRIEN V. UNITED STATES, ALSO ON
CERTIORARI TO THE SAME COURT. 

/1A/  AT THE TIME OF THE BURNING, THE AGENTS KNEW ONLY THAT O'BRIEN
AND HIS THREE COMPANIONS HAD BURNED SMALL WHITE CARDS.  THEY LATER
DISCOVERED THAT THE CARD O'BRIEN BURNED WAS HIS REGISTRATION
CERTIFICATE, AND THE UNDISPUTED ASSUMPTION IS THAT THE SAME IS TRUE OF
HIS COMPANIONS. 

/2/  HE WAS SENTENCED UNDER THE YOUTH CORRECTIONS ACT, 18 U.S.C.
5010(B), TO THE CUSTODY OF THE ATTORNEY GENERAL FOR A MAXIMUM PERIOD OF
SIX YEARS FOR SUPERVISION AND TREATMENT. 

/3/  THE ISSUE OF THE CONSTITUTIONALITY OF THE 1965 AMENDMENT WAS
RAISED BY COUNSEL REPRESENTING O'BRIEN IN A PRETRIAL MOTION TO DISMISS
THE INDICTMENT.  AT TRIAL AND UPON SENTENCING, O'BRIEN CHOSE TO
REPRESENT HIMSELF.  HE WAS REPRESENTED BY COUNSEL ON HIS APPEAL TO THE
COURT OF APPEALS. 

/4/  O'BRIEN V. UNITED STATES, 376 F.2D 538 (C.A. 1ST CIR. 1967). 

/5/  THE PORTION OF 32 CFR RELEVANT TO THE INSTANT CASE WAS REVISED
AS OF JANUARY 1, 1967.  CITATIONS IN THIS OPINION ARE TO THE 1962
EDITION WHICH WAS IN EFFECT WHEN O'BRIEN COMMITTED THE CRIME, AND WHEN
CONGRESS ENACTED THE 1965 AMENDMENT. 

/6/  THE COURT OF APPEALS NEVERTHELESS REMANDED THE CASE TO THE
DISTRICT COURT TO VACATE THE SENTENCE AND RESENTENCE O'BRIEN.  IN THE
COURT'S VIEW, THE DISTRICT JUDGE MIGHT HAVE CONSIDERED THE VIOLATION OF
THE 1965 AMENDMENT AS AN AGGRAVATING CIRCUMSTANCE IN IMPOSING
SENTENCE.  THE COURT OF APPEALS SUBSEQUENTLY DENIED O'BRIEN'S PETITION
FOR A REHEARING, IN WHICH HE ARGUED THAT HE HAD NOT BEEN CHARGED,
TRIED, OR CONVICTED FOR NONPOSSESSION, AND THAT NONPOSSESSION WAS NOT A
LESSER INCLUDED OFFENSE OF MUTILATION OR DESTRUCTION.  O'BRIEN V.
UNITED STATES, 376 F.2D 538, 542 (C.A. 1ST CIR.1967). 

/7/  UNITED STATES V. MILLER, 367 F.2D 72 (C.A. 2D CIR. 1966), CERT.
DENIED, 386 U.S. 911 (1967). 

/8/  SMITH V. UNITED STATES, 368 F.2D 529 (C.A. 8TH CIR. 1966). 

/9/  SEE 62 STAT. 605, AS AMENDED, 65 STAT. 76, 50 U.S.C. APP. 453;
32 CFR 1613.1 (1962). 

/10/  32 CFR 1621.2 (1962). 

/11/  32 CFR 1613.43A (1962). 

/12/  32 CFR 1621.9, 1623.1 (1962). 

/13/  32 CFR 1623.1, 1623.2 (1962). 

/14/  32 CFR 1623.4 (1962). 

/15/  32 CFR 1625.1 (1962). 

/16/  32 CFR 1625.1, 1625.2, 1625.3, 1625.4, AND 1625.11 (1962). 

/17/  32 CFR 1625.12 (1962). 

/18/  32 CFR 1621.2 (1962). 

/19/  32 CFR 1617.1 (1962), PROVIDES, IN RELEVANT PART: 

"EVERY PERSON REQUIRED TO PRESENT HIMSELF FOR AND SUBMIT TO
REGISTRATION MUST, AFTER HE IS REGISTERED, HAVE IN HIS PERSONAL
POSSESSION AT ALL TIMES HIS REGISTRATION CERTIFICATE (SSS FORM NO. 2)
PREPARED BY HIS LOCAL BOARD WHICH HAS NOT BEEN ALTERED AND ON WHICH NO
NOTATION DULY AND VALIDLY INSCRIBED THEREON HAS BEEN CHANGED IN ANY
MANNER AFTER ITS PREPARATION BY THE LOCAL BOARD.  THE FAILURE OF ANY
PERSON TO HAVE HIS REGISTRATION CERTIFICATE (SSS FORM NO. 2) IN HIS
PERSONAL POSSESSION SHALL BE PRIMA FACIE EVIDENCE OF HIS FAILURE TO
REGISTER." 

/20/  32 CFR 1623.5 (1962), PROVIDES, IN RELEVANT PART: 

"EVERY PERSON WHO HAS BEEN CLASSIFIED BY A LOCAL BOARD MUST HAVE IN
HIS PERSONAL POSSESSION AT ALL TIMES, IN ADDITION TO HIS REGISTRATION
CERTIFICATE (SSS FORM NO. 2), A VALID NOTICE OF CALSSIFICATION (SSS
FORM NO. 110) ISSUED TO HIM SHOWING HIS CURRENT CLASSIFICATION." 

/21/  SEE TEXT, INFRA, AT 382. 

/22/  NAACP V. BUTTON, 371 U.S. 415, 438 (1963); SEE ALSO SHERBERT
V. VERNER, 374 U.S.398, 403 (1963). 

/23/  NAACP V. BUTTON, 371 U.S. 415, 444 (1963); NAACP V. ALABAMA EX
REL. PATTERSON, 357 U.S. 449, 464 (1958). 

/24/  BATES V. LITTLE ROCK, 361 U.S. 516, 524 (1960). 

/25/  THOMAS V. COLLINS, 323 U.S. 516, 530 (1945); SEE ALSO SHERBERT
V. VERNER, 374 U.S. 398, 406 (1963). 

/26/  BATES V. LITTLE ROCK, 361 U.S. 516, 524 (1960). 

/27/  SHERBERT V. VERNER, 374 U.S. 398, 408 (1963) 

/28/  CF. MILANOVICH V. UNITED STATES, 365 U.S. 551 (1961); HEFLIN
V. UNITED STATES, 358 U.S. 415 (1959); PRINCE V. UNITED STATES, 352
U.S. 322 (1957). 

/29/  CF. MILANOVICH V. UNITED STATES, 365 U.S. 551 (1961); HEFLIN
V. UNITED STATES, 358 U.S. 415 (1959); PRINCE V. UNITED STATES, 352
U.S. 322 (1957). 

/30/ THE COURT MAY MAKE THE SAME ASSUMPTION IN A VERY LIMITED AND
WELL-DEFINED CLASS OF CASES WHERE THE VERY NATURE OF THE CONSTITUTIONAL
QUESTION REQUIRES AN INQUIRY INTO LEGISLATIVE PURPOSE.  THE PRINCIPAL
CLASS OF CASES IS READILY APPARENT-- THOSE IN WHICH STATUTES HAVE BEEN
CHALLENGED AS BILLS OF ATTAINDER.  THIS COURT'S DECISIONS HAVE DEFINED
A BILL OF ATTAINDER AS A LEGISLATIVE ACT WHICH INFLICTS PUNISHMENT ON
NAMED INDIVIDUALS OR MEMBERS OF AN EASILY ASCERTAINABLE GROUP WITHOUT A
JUDICIAL TRIAL.  IN DETERMINING WHETHER A PARTICULAR STATUTE IS A BILL
OF ATTAINDER, THE ANALYSIS NECESSARILY REQUIRES AN INQUIRY INTO WHETHER
THE THREE DEFINITIONAL ELEMENTS-- SPECIFICITY IN IDENTIFICATION,
PUNISHMENT, AND LACK OF A JUDICIAL TRIAL-- ARE CONTAINED IN THE
STATUTE.  THE INQUIRY INTO WHETHER THE CHALLENGED STATUTE CONTAINS THE
NECESSARY ELEMENT OF PUNISHMENT HAS ON OCCASION LED THE COURT TO
EXAMINE THE LEGISLATIVE MOTIVE IN ENACTING THE STATUTE.  SEE E.G.,
UNITED STATES V. LOVETT, 328 U.S.303 (1946).  TWO OTHER DECISIONS NOT
INVOLVING A BILL OF ATTAINDER ANALYSIS CONTAIN AN INQUIRY INTO
LEGISLATIVE PURPOSE OR MOTIVE OF THE TYPE THAT O'BRIEN SUGGESTS WE
ENGAGE IN THIS CASE.  KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, 169
184 (1963); TROP V. DULLES, 356 U.S. 86, 95-97 (1958).  THE INQUIRY
INTO LEGISLATIVE PURPOSE OR MOTIVE IN KENNEDY AND TROP, HOWEVER, WAS
FOR THE SAME LIMITED PURPOSE AS IN THE BILL OF ATTAINDER DECISIONS--
I.E., TO DETERMINE WHETHER THE STATUTES UNDER REVIEW WERE PUNITIVE IN
NATURE.  WE FACE NO SUCH INQUIRY IN THIS CASE.  THE 1965 AMENDMENT TO
SEC. 462(B) WAS CLEARLY PENAL IN NATURE, DESIGNED TO IMPOSE CRIMINAL
PUNISHMENT FOR DESIGNATED ACTS. 

/31/  THE OTHER ISSUES BRIEFED BY O'BRIEN WERE NOT RAISED IN THE
PETITION FOR CERTIORARI IN NO. 232 OR IN THE CROSS-PETITION IN NO.
233.  ACCORDINGLY, THOSE ISSUES ARE NOT BEFORE THE COURT. 

        APPENDIX TO OPINION OF THE COURT. 

        PORTIONS OF THE REPORTS OF THE COMMITTEES ON ARMED SERVICES

           OF THE SENATE AND HOUSE EXPLAINING THE 1965 AMENDMENT. 

THE "EXPLANATION OF THE BILL" IN THE SENATE REPORT IS AS FOLLOWS: 

"SECTION 12(B)(3) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT
OF 1951, AS AMENDED, PROVIDES, AMONT OTHER THINGS, THAT A PERSON WHO
FORGES, ALTERS, OR CHANGES A DRAFT REGISTRATION CERTIFICATE IS SUBJECT
TO A FINE OF ONOT MORE THAN $10,000 OR IMPRISONMENT OF NOT MORE THAN 5
YEARS, OR BOTH.  THERE IS NO EXPLICIT PROHIBITION IN THIS SECTION
AGAINST THE KNOWING DESTRUCTION OR MUTILATION OF SUCH CARDS. 

"THE COMMITTEE HAS TAKEN NOTICE OF THE DEFIANT DESTRUCTION AND
MUTILATION OF DRAFT CARDS BY DISSIDENT PERSONS WHO DISAPPROVE OF
NATIONAL POLICY.  IF ALLOWED TO CONTINUE UNCHECKED THIS CONTUMACIOUS
CONDUCT REPRESENTS A POTENTIAL THREAT TO THE EXERCISE OF THE POWER TO
RAISE AND SUPPORT ARMIES. 

"FOR A PERSON TO BE SUBJECT TO FINE OR IMPRISONMENT THE DESTRUCTION
OR MUTILATION OF THE DRAFT CARD MUST BE 'KNOWINGLY' DONE.  THIS
QUALIFICATION IS INTENDED TO PROTECT PERSONS WHO LOSE OR MUTILATE DRAFT
CRADS ACCIDENTALLY."  S. REP. NO. 589, 89TH CONG., 1ST SESS. (1965). 
AND THE HOUSE REPORT EXPLAINED: 

"SECTION 12(B)(3) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT
OF 1951, AS AMENDED, PROVIDES THAT A PERSON WHO FORGES, ALTERS, OR IN
ANY MANNER CHANGES HIS DRAFT REGISTRATION CARD, OR ANY NOTATION DULY
AND VALIDLY INSCRIBED THEREON, WILL BE SUBJECT TO A FINE OF $10,000 OR
IMPRISONMENT OF NOT MORE THAN 5 YEARS.  H.R. 10306 WOULD AMEND THIS
PROVISION TO MAKE IT APPLY ALSO TO THOSE PERSONS WHO KNOWINGLY DESTROY
OR KNOWINGLY MUTILATE A DRAFT REGISTRATION CARD. 

"THE HOUSE COMMITTEE ON ARMED SERVICES IS FULLY AWARE OF, AND SHARES
IN, THE DEEP CONCERN EXPRESSED THROUGHOUT THE NATION OVER THE
INCREASING INCIDENCES IN WHICH INDIVIDUALS AND LARGE GROUPS OF
INDIVIDUALS OPENLY DEFY AND ENCOURAGE OTHERS TO DEFY THE AUTHORITY OF
THEIR GOVERNMENT BY DESTROYING OR MUTILATING THEIR DRAFT CARDS. 

"WHILE THE PRESENT PROVISIONS OF THE CRIMINAL CODE WITH RESPECT TO
THE DESTRUCTION OF GOVERNMENT PROPERTY MAY APPEAR BROAD ENOUGHT TO
COVER ALL ACTS HAVING TO DO WITH THE MISTREATMENT OF DRAFT CARDS IN THE
POSSESSION OF INDIVIDUALS, THE COMMITTEE FEELS THAT IN THE PRESENT
CRITICAL SITUATION OF THE COUNTY, THE ACTS OF DESTROYING OR MUTILATING
THESE CARDS ARE OFFENSES WHICH POSE SUCH A GRAVE THREAT TO THE SECURITY
OF THE NATION THAT NO QUESTION WHATSOEVER SHOULD BE LEFT AS TO THE
INTENTION OF THE CONGRESS THAT SUCH WANTON AND IRRESPONSIBLE ACTS
SHOULD BE PUNISHED. 

"TO THIS END, H.R. 10306 MAKES SPECIFIC THAT KNOWINGLY MUTILATING OR
KNOWINGLY DESTROYING A DRAFT CARD CONSTITUTES A VIOLATION OF THE
UNIVERSAL MILITARY TRAINING AND SERVICE ACT AND IS PUNISHABLE
THEREUNDER; AND THAT A PERSON WHO DOES SO DESTROY OR MUTILATE A DRAFT
CARE WILL BE SUBJECT TO A FINE OR NOT MORE THAN $10,000 OR IMPRISONMENT
OF NOT MORE THAN 5 YEARS."  H.R. REP. NO. 747, 89TH CONG., 1ST SESS.
(1965). 

MR. JUSTICE HARLAN, CONCURRING. 

THE CRUX OF THE COURT'S OPINION, WHICH I JOIN, IS OF COURSE ITS
GENERAL STATEMENT, ANTE, AT 377, THAT: 

"A GOVERNMENT REGULATION IS SUFFICIENTLY JUSTIFIED IF IT IS WITHIN
THE CONSTITUTIONAL POWER OF THE GOVERNMENT; IF IT FURTHERS AN IMPORTANT
OR SUBSTANTIAL GOVERNMENTAL INTEREST; IF THE GOVERNMENTAL INTEREST IS
UNRELATED TO THE SUPPRESSION OF FREE EXPRESSION; AND IF THE INCIDENTAL
RESTRICTION OR ALLEGED FIRST AMENDMENT FREEDOMS IS NO GREATER THAN IS
ESSENTIAL TO THE FURTHERANCE OF THAT INTEREST."  I WISH TO MAKE
EXPLICIT MY UNDERSTANDING THAT THIS PASSAGE DOES NOT FORECLOSE
CONSIDERATION OF FIRST AMENDMENT CLAIMS IN THOSE RARE INSTANCES WHEN AN
"INCIDENTAL" RESTRICTION UPON EXPRESSION, IMPOSED BY A REGULATION WHICH
FURTHERS AN "IMPORTANT OR SUBSTANTIAL" GOVERNMENTAL INTEREST AND
SATISFIES THE COURT'S OTHER CRITERIA, IN PRACTICE HAS THE EFFECT OF
ENTIRELY PREVENTING A "SPEAKER" FROM REACHING A SIGNIFICANT AUDIENCE
WITH WHOM HE COULD NOT OTHERWISE LAWFULLY COMMUNICATE.  THIS IS NOT
SUCH A CASE, SINCE O'BRIEN MANIFESTLY COULD HAVE CONVEYED HIS MESSAGE
IN MANY WAYS OTHER THAN BY BURNING HIS DRAFT CARD. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE COURT STATES THAT THE CONSTITUTIONAL POWER OF CONGRESS TO RAISE
AND SUPPORT ARMIES IS "BROAD AND SWEEPING" AND THAT CONGRESS' POWER "TO
CLASSIFY AND CONSCRIPT MANPOWER FOR MILITARY SERVICE IS 'BEYOND
QUESTION.'"  THIS IS UNDOUBTEDLY TRUE AT TIMES WHEN, BY DECLARATION OF
CONGRESS, THE NATION IS IN A STATE OF WAR.  THE UNDERLYING AND BASIC
PROBLEM IN THIS CASE, HOWEVER, IS WHETHER CONSCRIPTION IS PERMISSIBLE
IN THE ABSENCE OF A DECLARATION OF WAR.  /1/  THAT QUESTION HAS NOT
BEEN BRIEFED NOR WAS IT PRESENTED IN ORAL ARGUMENT; BUT IT IS, I
SUBMIT, A QUESTION UPON WHICH THE LITIGANTS AND THE COUNTRY ARE
ENTITLED TO A RULING.  I HAVE DISCUSSED IN HOLMES V. UNITED STATES,
POST, P. 936, THE NATURE OF THE LEGAL ISSUE AND IT WILL BE SEEN FROM MY
DISSENTING OPINION IN THAT CASE THAT THIS COURT HAS NEVER RULED ON THE
QUESTION.  IT IS TIME THAT WE MADE A RULING.  THIS CASE SHOULD BE PUT
DOWN FOR REARGUMENT AND HEARD WITH HOLMES V. UNITED STATES AND WITH
HART V. UNITED STATES, POST, P. 956, IN WHICH THE COURT TODAY DENIES
CERTIORARI.  /2/ 

THE RULE THAT THIS COURT WILL NOT CONSIDER ISSUES NOT RAISED BY THE
PARTIES IS NOT INFLEXIBLE AND YIELDS IN "EXCEPTIONAL CASES" (DUIGNAN V.
UNITED STATES, 274 U.S. 195, 200) TO THE NEED CORRECTLY TO DECIDE THE
CASE BEFORE THE COURT.  E.G., ERIE R. CO. V. TOMPKINS, 304 U.S. 64;
TERMINIELLO V. CHICAGO, 337 U.S. 1. 

IN SUCH A CASE IT IS NOT UNUSUAL TO ASK FOR REARGUMENT (SHERMAN V.
UNITED STATES, 356 U.S. 369, 379, N. 2, FRANKFURTER, J., CONCURRING)
EVEN ON A CONSTITUTIONAL QUESTION NOT RAISED BY THE PARTIES.  IN ABEL
V. UNITED STATES, 362 U.S. 217, THE PETITIONER HAD CONCEDED THAT AN
ADMINISTRATIVE DEPORTATION ARREST WARRANT WOULD BE VALID FOR ITS
LIMITED PURPOSE EVEN THOUGH NOT SUPPORTED BY A SWORN AFFIDAVIT STATING
PROBABLE CAUSE; BUT THE COURT ORDERED REARGUMENT ON THE QUESTION
WHETHER THE WARRANT HAD BEEN VALIDLY ISSUED IN PETITIONER'S CASE.  362
U.S.,AT 219, N., PAR. 1; 359 U.S. 940.  IN LUSTIG V. UNITED STATES, 338
U.S.74, THE PETITIONER ARGUED THAT AN EXCLUSIONARY RULE SHOULD APPLY TO
THE FRUIT OF AN UNREASONABLE SEARCH BY STATE OFFICIALS SOLELY BECAUSE
THEY ACTED IN CONCERT WITH FEDERAL OFFICERS (SEE WEEKS V. UNITED
STATES, 232 U.S. 383; BYARS V. UNITED STATES, 273 U.S. 28).  THE COURT
ORDERED REARGUMENT ON THE QUESTION RAISED IN A THEN PENDING CASE, WOLF
V. COLORADO, 338 U.S. 25; APPLICABILITY OF THE FOURTH AMENDMENT TO THE
STATES.  U.S. SUP. CT. JOURNAL, OCTOBER TERM, 1947, P. 298.  IN
DONALDSON V. READ MAGAZINE, 333 U.S. 178, THE ONLY ISSUE PRESENTED,
ACCORDING TO BOTH PARTIES, WAS WHETHER THE RECORD CONTAINED SUFFICIENT
EVIDENCE OF FRAUD TO UPHOLD AN ORDER OF THE POSTMASTER GENERAL. 
REARGUMENT WAS ORDERED ON THE CONSTITUTIONAL ISSUE OF ABRIDGMENT OF
FIRST AMENDMENT FREEDOMS.  333 U.S.,AT 181-182; JOURNAL, OCTOBER TERM,
1947, P. 70.  FINALLY, IN MUSSER V. UTAH, 333 U.S. 95, 96, REARGUMENT
WAS ORDERED ON THE QUESTION OF UNCONSTITUTIONAL VAGUENESS OF A CRIMINAL
STATUTE, AN ISSUE NOT RAISED BY THE PARTIES BUT SUGGESTED AT ORAL
ARGUMENT BY JUSTICE JACKSON.  JOURNAL OCTOBER TERM, 1947, P. 87. 
THESE PRECEDENTS DEMONSTRATE THE APPROPRIATENESS OF RESTORING THE
INSTANT CASE TO THE CALENDAR FOR REARGUMENT ON THE QUESTION OF THE
CONSTITUTIONALITY OF A PEACETIME DRAFT AND HAVING IT HEARD WITH HOLMES
V. UNITED STATES AND HART V. UNITED STATES. 

/1/  NEITHER OF THE DECISIONS CITED BY THE MAJORITY FOR THE
PROPOSITION THAT CONGRESS' POWER TO CONSCRIPT MEN INTO THE ARMED
SERVICES IS "'BEYOND QUESTION'" CONCERNS PEACETIME CONSCRIPTION.  AS I
HAVE SHOWN IN MY DISSENTING OPINION IN HOLMES V. UNITED STATES, POST,
P. 936, THE SELECTIVE DRAFT LAW CASES, 245 U.S.366, DECIDED IN 1918,
UPHELD THE CONSTITUTIONALITY OF A CONSCRIPTION ACT PASSED BY CONGRESS
MORE THAN A MONTH AFTER WAR HAD BEEN DECLARED ON THE GERMAN EMPIRE AND
WHICH WAS THEN BEING ENFORCED IN TIME OF WAR.  LICHTER V. UNITED
STATES, 334 U.S. 742, CONCERNED THE CONSTITUTIONALITY OF THE
RENEGOTIATION ACT, ANOTHER WARTIME MEASURE, ENACTED BY CONGRESS OVER
THE PERIOD OF 1942-1945 (ID., AT 745, N.1) AND APPLIED IN THAT CASE TO
EXCESSIVE WAR PROFITS MADE IN 1942-1943 (ID., AT 753).  WAR HAD BEEN
DECLARED, OF COURSE, IN 1941 (55 STAT. 795).  THE COURT REFERRED TO
CONGRESS' POWER TO RAISE ARMIES IN DISCUSSING THE "BACKGROUND" (334
U.S.,AT 753) OF THE RENEGOTIATION ACT, WHICH IT UPHELD AS A VALID
EXERCISE OF THE WAR POWER. 

/2/  TODAY THE COURT ALSO DENIES STAYS IN SHIFFMAN V. SELECTIVE
SERVICE BOARD NO. 5, AND ZIGMOND V. SELECTIVE SERVICE BOARD NO. 16,
POST, P. 930, WHERE PUNITIVE DELINQUENCY REGULATIONS ARE INVOKED
AGAINST REGISTRANTS, DECISIONS THAT PRESENT A RELATED QUESTION. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL VINSON, FRANCIS
X. BEYTAGH, JR., BEATRICE ROSENBERG, AND JEROME M. FEIT. 

MARVIN M. KARPATKIN ARGUED THE CAUSE FOR RESPONDENT IN NO. 232 AND
PETITIONER IN NO. 233.  WITH HIM ON THE BRIEF WERE HOWARD S. WHITESIDE,
MELVIN L. WULF, AND RHODA H. KARPATKIN. 
..END :


















PUYALLUP TRIBE V. DEPT. OF GAME, 391 U.S. 392 


       PUYALLUP TRIBE V. DEPARTMENT OF GAME OF WASHINGTON ET AL.

        CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

        NO. 247.  ARGUED MARCH 25-26, 1968.-- DECIDED MAY 27,
1968. 

           /1/ 


RESPONDENTS BROUGHT THESE ACTIONS IN THE STATE COURT SEEKING
DECLARATORY RELIEF CONCERNING RIGHTS WHICH PETITIONER INDIANS ASSERTED
BY VIRTUE OF ARTICLE III OF THE TREATY OF MEDICINE CREEK MADE WITH THE
PUYALLUP AND NISQUALLY INDIANS AND CERTAIN CONSERVATION MEASURES
ADOPTED BY THE STATE OF WASHINGTON WITH RESPECT TO ITS TERRITORIAL
WATERS.  UNDER THAT PROVISION OF THE TREATY THE "RIGHT OF TAKING FISH
AT ALL USUAL AND ACCUSTOMED GROUNDS AND STATIONS, IS . . . SECURED TO
SAID INDIANS, IN COMMON WITH ALL CITIZENS OF THE TERRITORY . . . ." 
THE FISH TO WHICH THE TREATY RIGHTS IN THESE CASES RELATE ARE SALMON
AND STEELHEAD, ANADROMOUS FISH THAT HATCH IN THE FRESH WATER OF THE
PUYALLUP AND NISQUALLY RIVERS.  TO CATCH THESE FISH FOR THEIR OWN USE
AND FOR COMMERCIAL PURPOSES, THE INDIANS HAVE USED SET NETS WHICH
WASHINGTON UNDERTOOK TO REGULATE.  THE STATE SUPREME COURT HELD THAT
THESE FISHING RIGHTS CAN BE REGULATED BY THE STATE AND REMANDED THE
CAUSES TO THE TRIAL COURT TO DETERMINE IF THE REGULATIONS WERE
REASONABLE AND NECESSARY.  HELD: 

1.  THE STATE MAY IN THE INTEREST OF CONSERVATION REGULATE FISHING
BY THE INDIANS "IN COMMON WITH" THE FISHING BY OTHERS.  PP. 397-401. 

2.  WHETHER THE USE OF SET NETS AT LOCATIONS WHERE THE INDIANS
PLACED THEM IS PERMISSIBLE IS A QUESTION NOT REACHED ON THE RECORD. 
PP. 401-403. 

NO. 247, 70 WASH.2D 245, 422 P.2D 754; NO. 319, 70 WASH.2D 275, 422
P.2D 771, AFFIRMED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT A QUESTION OF PUBLIC IMPORTANCE WHICH INVOLVES IN
THE FIRST PLACE A CONSTRUCTION OF THE TREATY OF MEDICINE CREEK MADE
WITH THE PUYALLUP AND NISQUALLY INDIANS IN 1854 (10 STAT.1132) AND
SECONDLY THE CONSTITUTIONALITY OF CERTAIN CONSERVATION MEASURES ADOPTED
BY THE STATE OF WASHINGTON ALLEGEDLY IMPINGING ON THOSE TREATY RIGHTS. 

THESE SUITS WERE BROUGHT BY RESPONDENTS IN THE STATE COURT AGAINST
THE INDIANS FOR DECLARATORY RLIEF AND FOR AN INJUNCTION.  THE TRIAL
COURT HELD FOR RESPONDENTS AND WITH EXCEPTIONS NOT RELEVANT TO OUR
PROBLEM THE SUPREME COURT AFFIRMED IN PART AND REMANDED FOR FURTHER
FINDINGS ON THE CONSERVATION ASPECT OF THE PROBLEM.  DEPARTMENT OF GAME
V. PUYALLUP TRIBE, 70 WASH.2D 245, 422 P.2D 754; DEPARTMENT OF GAME V.
KAUTZ, 70 WASH.2D 275, 422 P.2D 771.  WE GRANTED THE PETITIONS FOR
CERTIORARI AND CONSOLIDATED THE CASES FOR ORAL ARGUMENT.  389 U.S.
1031. 

WHILE THE TREATY OF MEDICINE CREEK CREATED A RESERVATION FOR THESE
INDIANS, NO QUESTION AS TO THE EXTENT OF THOSE RESERVATION RIGHTS, IF
ANY, IS INVOLVED HERE.  /1/  OUR QUESTION CONCERNS THE FISHING RIGHTS
PROTECTED BY ARTICLE III, WHICH SO FAR AS RELEVANT READS AS FOLLOWS: 

"THE RIGHT OF TAKING FISH, AT ALL USUAL AND ACCUSTOMED GROUNDS

  AND STATIONS, IS FURTHER SECURED TO SAID INDIANS, IN COMMON WITH

  ALL CITIZENS OF THE TERRITORY, AND OF ERECTING TEMPORARY HOUSES

  FOR THE PURPOSE OF CURING, TOGETHER WITH THE PRIVILEGE OF

  HUNTING, GATHERING ROOTS AND BERRIES, AND PASTURING THEIR HORSES

  ON OPEN AND UNCLAIMED LANDS . . . ." 

THE FISH TO WHICH THE TREATY RIGHTS PERTAIN IN THESE CASES ARE
SALMON AND STEELHEAD, ANADROMOUS FISH THAT HATCH IN THE FRESH WATER OF
THE PUYALLUP RIVER AND THE NISQUALLY RIVER.  THE STEELHEAD IS A TROUT;
THE SALMON ARE OF FOUR SPECIES-- CHINOOK, SILVER, CHUM, AND PINK.  THEY
COME IN FROM THE OCEAN, PASS THROUGH THE SALT WATER OF PUGET SOUND,
ENTER THE FRESH WATERS AT THE MOUTHS OF RIVERS, AND GO UP THESE RIVERS
TO SPAWN.  THE ADULT SALMON DIE AFTER SPAWNING, BUT NOT NECESSARILY THE
STEELHEAD.  IN TIME THE FRY RETURN TO THE OCEAN AND START THE CYCLE
ANEW. 

PEOPLE FISH FOR THESE SPECIES FAR OFFSHORE.  /2/  AS RESPECTS
FISHING WITHIN ITS TERRITORIAL WATERS, WASHINGTON SPECIFIES THE TIME
WHEN FISHING MAY TAKE PLACE, THE AREAS OPEN TO FISHING, AND THE GEAR
THAT MAY BE USED.  /3/ 

FISHING LICENSES ARE PRESCRIBED.  /4/  STEELHEAD STEELHEAD MAY BE
TAKEN ONLY BY HOOK /5/  AND NOT COMMERCIALLY.  SALMON MAY BE TAKEN
COMMERCIALLY WITH NETS OF A CERTAIN TYPE IN CERTAIN AREAS.  /6/  SET
NETS OR FIXED APPLIANCES ARE BARRED IN "ANY WATERS" OF THE STATE FOR
THE TAKING OF SALMON OR STEELHEAD.  /7/  SO IS "MONOFILAMENT GILL NET
WEBBING."  /8/ 

NEARLY EVERY RIVER IN THE STATE HAS A SALMON PRESERVE AT ITS MOUTH;
/9/  AND COMMENCEMENT BAY AT THE MOUTH OF THE PUYALLUP RIVER IS ONE OF
THOSE PRESERVES.  /10/ 

THE PUYALLUP PINDIANS USE SET NETS TO FISH IN COMMENCEMENT BAY AND
AT THE MOUTH OF THE PUYALLUP RIVER AND IN AREAS UPSTREAM.  THE
NISQUALLY INDIANS USE SET NETS IN THE FRESH WATERS OF THE NISQUALLY
RIVER.  THESE INDIANS FISH NOT ONLY FOR THEIR OWN NEEDS BUT
COMMERCIALLY AS WELL, SUPPLYING THE MARKETS WITH A LARGE VOLUME OF
SALMON.  THE NETS USED ARE CONCEDEDLY ILLEGAL IF THE LAWS AND
REGULATIONS OF THE STATE OF WASHINGTON ARE VALID; AND IT IS TO THAT
QUESTION THAT WE NOW TURN.  /11/ 

THE "RIGHT OF TAKING FISH AT ALL USUAL AND ACCUSTOMED PLACES, IN
COMMON WITH" CITIZENS OF THE TERRITORY UNDER A TREATY WITH THE YAKIMAS
WAS INVOLVED IN UNITED STATES V. WINANS, 198 U.S. 371.  THE LANDS
BORDERING THE COLUMBIA RIVER AT THOSE PLACES WERE ACQUIRED BY PRIVATE
OWNERS WHO UNDER LICENSE FROM THE STATE ACQUIRED THE RIGHT TO FISH
THERE AND SOUGHT TO EXCLUDE THE INDIANS BY REASON OF THEIR OWNERSHIP. 
THE COURT HELD THAT THE RIGHT TO FISH AT THESE PLACES WAS A
"CONTINUING" ONE THAT COULD NOT BE DESTROYED BY A CHANGE IN OWNERSHIP
OF THE LAND BORDERING THE RIVER.  198 U.A.,AT 381.  TO CONSTRUE THE
TREATY AS GIVING THE INDIANS "NO RIGHTS BUT SUCH AS THEY WOULD HAVE
WITHOUT THE TREATY" (198 U.S.,AT 380) WOULD BE "AN IMPOTENT OUTCOME TO
NEGOTIATIONS AND A CONVENTION, WHICH SEEMED TO PROMISE MORE AND GIVE
THE WORD OF THE NATION FOR MORE."  IBID.  IN SEUFERT BROS. CO. V.
UNITED STATES, 249 U.S. 194, THE COURT CONSTRUED THE SAME PROVISION
LIBERALLY SO AS TO INCLUDE ALL "ACCUSTOMED PLACES" EVEN THOUGH THE
INDIANS SHARED THOSE PLACES WITH OTHER INDIANS AND WITH WHITE MEN,
REJECTING A STRICT, TECHNICAL CONSTRUCTION NOT IN KEEPING WITH THE
JUSTICE OF THE CASE. 

IT IS IN THAT SPIRIT THAT WE APPROACH THESE CASES IN DETERMINING THE
SCOPE OF THE TREATY RIGHTS WHICH THE PUYALLUPS AND NISQUALLY OBTAINED. 

THE TREATY RIGHT IS IN TERMS THE RIGHT TO FISH "AT ALL USUAL AND
ACCUSTOMED PLACES."  WE ASSUME THAT FISHING BY NETS WAS CUSTOMARY AT
THE TIME OF THE TREATY; AND WE ALSO ASSUME THAT THERE WERE COMMERCIAL
ASPECTS TO THAT FISHING AS THERE ARE AT PRESENT.  BUT THE MANNER IN
WHICH THE FISHING MAY BE DONE AND ITS PURPOSE, WHETHER OR NOT
COMMERCIAL, ARE NOT MENTIONED IN THE TREATY.  WE WOULD HAVE QUITE A
DIFFERENT CASE IF THE TREATY HAD PRESERVED THE RIGHT TO FISH AT THE
"USUAL AND ACCUSTOMED PLACES" IN THE "USUAL AND ACCUSTOMED" MANNER. 
BUT THE TREATY IS SILENT AS TO THE MODE OR MODES OF FISHING THAT ARE
GUARANTEED.  MOREOVER, THE RIGHT TO FISH AT THOSE RESPECTIVE PLACES IS
NOT AN EXCLUSIVE ONE.  RATHER, IT IS ONE "IN COMMON WITH ALL CITIZENS
OF THE TERRITORY."  CERTAINLY THE RIGHT OF THE LATTER MAY BE
REGULATED.  AND WE SEE NO REASON WHY THE RIGHT OF THE INDIANS MAY NOT
ALSO BE REGULATED BY AN APPROPRIATE EXERCISE OF THE POLICE POWER OF THE
STATE.  THE RIGHT TO FISH "AT ALL USUAL AND ACCUSTOMED" PLACES MAY, OF
COURSE, NOT BE QUALIFIED BY THE STATE, EVEN THOUGH ALL INDIANS BORN IN
THE UNITED STATES ARE NOW CITIZENS OF THE UNITED STATES.  ACT OF JUNE
2, 1924, 43 STAT. 253, AS SUPERSEDED BY SEC. 210(B) OF THE NATIONALITY
ACT OF 1940, 8 U.S.C. 1401(A)(2).  BUT THE MANNER OF FISHING, THE SIZE
OF THE TAKE, THE RESTRICTION OF COMMERCIAL FISHING, AND THE LIKE MAY BE
REGULATED BY THE STATE IN THE INTEREST OF CONSERVATION, PROVIDED THE
REGULATION MEETS APPROPRIATE STANDARDS AND DOES NOT DISCRIMINATE
AGAINST THE INDIANS. 

IN TULEE V. WASHINGTON, 315 U.S. 681, WE HAD BEFORE US FOR
CONSTRUCTION A LIKE TREATY WITH THE YAKIMA INDIANS WHICH GUARANTEED THE
RIGHT TO FISH "AT ALL USUAL AND ACCUSTOMED PLACES, IN COMMON WITH THE
CITIZENS" OF WASHINGTON TERRITORY.  12 STAT. 951.  TULEE, A MEMBER OF
THE TRIBE, WAS FISHING WITHOUT A LICENSE OFF THE YAKIMA INDIAN
RESERVATION; THE STATE CONVICTED HIM FOR FAILURE TO OBTAIN A LICENSE. 
WE REVERSED, SAYING: 

"(WHILE THE TREATY LEAVES THE STATE WITH POWER TO IMPOSE ON INDIANS,
EQUALLY WITH OTHERS, SUCH RESTRICTIONS OF A PURELY REGULATORY NATURE
CONCERNING THE TIME AND MANNER OF FISHING OUTSIDE THE RESERVATION AS
ARE NECESSARY FOR THE CONSERVATION OF FISH, IT FORECLOSES THE STATE
FROM CHARGING THE INDIANS A FEE OF THE KIND IN QUESTION HERE."  ID., AT
684. 

IN OTHER WORDS, THE "RIGHT" TO FISH OUTSIDE THE RESERVATION WAS A
TREATY "RIGHT" THAT COULD NOT BE QUALIFIED OR CONDITIONED BY THE
STATE.  BUT "THE TIME AND MANNER OF FISHING . . . NECESSARY FOR THE
CONSERVATION OF FISH," NOT BEING DEFINED OR ESTABLISHED BY THE TREATY,
WERE WITHIN THE REACH OF STATE POWER. 

THE OVERRIDING POLICE POWER OF THE STATE, EXPRESSED IN
NONDISCRIMINATORY MEASURES FOR CONSERVING FISH RESOURCES, IS
PRESERVED.  IN UNITED STATES V. WINANS, SUPRA, A FORERUNNER OF THE
TULEE CASE, THE COURT SAID: 

"(SURELY IT WAS WITHIN THE COMPETENCY OF THE NATION TO SECURE TO THE
INDIANS SUCH A REMNANT OF THE GREAT RIGHTS THEY POSSESSED AS 'TAKING
FISH AT ALL USUAL AND ACCUSTOMED PLACES.'  NOR DOES IT RESTRAIN THE
STATE UNREASONABLY, IF AT ALL, IN THE REGULATION OF THE RIGHT."  198
U.S.,AT 384. 

ANOTHER FORERUNNER OF TULEE WAS KENNEDY V. BECKER, 241 U.S. 556,
WHICH ALSO INVOLVED A NONEXCLUSIVE GRANT OF FISHING RIGHTS TO INDIANS. 
INDIANS WERE CHARGED WITH THE SPEARING OF FISH CONTRARY TO NEW YORK
LAW, THEIR DEFENSE BEING THE FISHING RIGHTS GRANTED BY A TREATY.  THE
COURT, IN SUSTAINING THE JUDGMENTS OF CONVICTION, SAID: 

"WE DO NOT THINK THAT IT IS A PROPER CONSTRUCTION OF THE RESERVATION
IN THE CONVEYANCE TO REGARD IT AS AN ATTEMPT EITHER TO RESERVE
SOVEREIGN PREROGATIVE OR SO TO DIVIDE THE INHERENT POWER OF
PRESERVATION AS TO MAKE ITS COMPETENT EXERCISE IMPOSSIBLE.  RATHER ARE
WE OF THE OPINION THAT THE CLAUSE IS FULLY SATISFIED BY CONSIDERING IT
A RESERVATION OF A PRIVILEGE OF FISHING AND HUNTING UPON THE GRANTED
LANDS IN COMMON WITH THE GRANTEES, AND OTHERS TO WHOM THE PRIVILEGE
MIGHT BE EXTENDED, BUT SUBJECT NEVERTHELESS TO THAT NECESSARY POWER OF
APPROPRIATE REGULATION, AS TO ALL THOSE PRIVILEGED, WHICH INHERED IN
THE SOVEREIGNTY OF THE STATE OVER THE LANDS WHERE THE PRIVILEGE WAS
EXERCISED."  241 U.S.,AT 563-564. 

THE USE OF PURSE SEINES AND OTHER NETS /12/  IN THE SALT WATERS IS
PERMITTED FOR COMMERCIAL PURPOSES UNDER TERMS AND CONDITIONS PRESCRIBED
BY THE STATE; AND THEIR USE IN THESE AREAS IS OPEN TO ALL, INDIANS AS
WELL AS OTHERS.  THE USE OF SET NETS /13/  IN FRESH WATER STREAMS OR AT
THEIR MOUTHS IS BARRED NOT ONLY TO INDIANS BUT TO ALL OTHERS.  AN
EXPERT FOR THE STATE TESTIFIED THAT THE REASONS FOR THAT PROHIBITION
WAS CONSERVATION: 

     "THE SALMON ARE MILLING AND DELAYING, AND ESPECIALLY IN TIMES

  OF LOW WATER OR EARLY ARRIVAL OF THE RUN OR FOR ANY NUMBER OF

REASONS, THE DELAY MAY BE CONSIDERABLE. 

      "ONCE AGAIN THE FISH ARE AVAILABLE TO THE NET AGAIN AND
AGAIN. 

  THIS IS THE MAIN REASON FOR THE PRESERVE, SO THAT THE MILLING

  STOCK WILL NOT BE COMPLETELY TAKEN. 

    "THEN FURTHER, THIS IS A POINT IN THE BAY AT THE RIVER MOUTH

  WHERE YOU VERY DEFINITELY HAVE A FUNNELLING EFFECT.  THE ENTIRE

  RUN IS FUNNELED INTO A SMALLER AREA AND IT IS VERY VULNERABLE." 

FISHING BY HOOK AND LINE IS ALLOWED IN THESE AREAS BECAUSE WHEN
SALMON ARE "MILLING NEAR THE RIVER MOUTH," THEY ARE NOT "FEEDING AND
THEY DON'T STRIKE VERY WELL, SO THE HOOK AND LINE FISHERY WILL TAKE BUT
A SMALL PERCENTAGE OF THE AVAILABLE STOCK NO MATTER HOW HARD THEY
FISH." 

"WHETHER THE PROHIBITION OF THE USE OF SET NETS IN THESE FRESH
WATERS WAS A "REASONABLE AND NECESSARY" (70 WASH.2D, AT 261, 422 P.2D,
AT 764) CONSERVATION MEASURE /14/  WAS LEFT FOR DETERMINATION BY THE
TRIAL COURT WHEN THE SUPREME COURT, DEEMING THE INJUNCTION IN NO. 247
TOO BROAD, REMANDED THE CASE FOR FURTHER FINDINGS.  /15/  WHEN THE CASE
WAS ARGUED HERE, MUCH WAS SAID ABOUT THE PROS AND THE CONS OF THAT
ISSUE.  SINCE THE STATE COURT HAS GIVEN US NO AUTHORITATIVE ANSWER TO
THE QUESTION, WE LEAVE IT UNANSWERED AND ONLY ADD THAT ANY ULTIMATE
FINDINGS ON THE CONSERVATION ISSUE MUST ALSO COVER THE ISSUE OF EQUAL
PROTECTION IMPLICIT IN THE PHRASE "IN COMMON WITH." 

              AFFIRMED. 

/1/  TOGETHER WITH NO. 319, KAUTZ ET AL. V. DEPARTMENT OF GAME OF
WASHINGTON ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

/1A/  IT SHOULD BE NOTED THAT WHILE A RESERVATION WAS CREATED BY
ARTICLE II OF THE TREATY, ARTICLE VI PROVIDED THAT THE PRESIDENT MIGHT
REMOVE THE INDIANS FROM THE RESERVATION "ON REMUNERATING THEM FOR THEIR
IMPROVEMENTS AND THE EXPENSES OF THEIR REMOVAL, OR MAY CONSOLIDATE THEM
WITH OTHER FRIENDLY TRIBES OR BANDS BANDS."  ARTICLE VI ALSO GAVE THE
PRESIDENT AUTHORITY ALTERNATIVELY TO DIVIDE THE RESERVATION INTO LOTS
AND ASSIGN THEM TO THOSE INDIVIDUALS OR FAMILIES WHO WERE WILLING TO
MAKE THESE PLACES THEIR PERMANENT HOME.  IN 1887 CONGRESS PASSED THE
GENERAL ALLOTMENT ACT (24 STAT. 388) AUTHORIZING THE DIVISION OF THE
RESERVATION LAND AMONG THE INDIVIDUAL INDIANS.  IN 1893 CONGRESS PASSED
THE PUYALLUP ALLOTMENT ACT, 27 STAT. 633, WHICH ESTABLISHED A
COMMISSION TO MAKE THE ALLOTMENTS.  AND BY THE ACT OF APRIL 28, 1904,
33 STAT. 565, CONGRESS GAVE "THE CONSENT OF THE UNITED STATES" TO THE
REMOVAL OF PRIOR RESTRICTIONS ON ALIENATION BY THESE INDIANS.  THE
TRIAL COURT IN NO. 247 FOUND THAT ALL LANDS WITHIN THE BOUNDARIES OF
THE RESERVATION CREATED BY THE TREATY HAVE BEEN TRANSFERRED TO PRIVATE
OWNERSHIP PURSUANT TO THESE ACTS OF CONGRESS, WITH THE EXCEPTION OF TWO
SMALL TRACTS USED AS A CEMETERY FOR MEMBERS OF THE TRIBE; AND MUCH OF
IT IS NOW IN THE CITY OF TACOMA.  SEE STATE V. SATIACUM, 50 WASH.2D
513, 314 P.2D 400 (1957).  WHETHER IN LIGHT OF THIS HISTORY THE
RESERVATION HAS BEEN EXTINGUISHED IS A QUESTION WE DO NOT REACH.  CF.
SEYMOUR V. SUPERINTENDENT, 368 U.S. 351, 356-359.  THE WASHINGTON
SUPREME COURT SEEMS TO HOLD THAT THE RIGHT TO FISH IN STREAMS ONCE
WITHIN THE OLD RESERVATION IS PROTECTED BY THE ARTICLE III GUARANTEE. 
SEE 70 WASH.2D, AT 261, 262, 422 P.2D, AT 763, 764.  THERE ARE INDEED
NO OTHER FISHING RIGHTS SPECIFICALLY RESERVED IN THE TREATY OF MEDICINE
CREEK EXCEPT THOSE COVERED BY ARTICLE III. 

/2/  FISHING FOR SALMON IN THE HIGH SEAS IS GOVERNED BY A CONVENTION
AGREED TO BY CANADA, JAPAN, AND THE UNITED STATES ON MAY 9, 1952.  4
U.S.T.,PT.I, P. 380, T.I.A.S. NO. 2786.  AS TO SOCKEYE SALMON AND PINK
SALMON, THE UNITED STATES AND CANADA HAVE A SEPARATE CONVENTION FIRST
SIGNED MAY 26, 1930, AND AMENDED AS OF JULY 3, 1957.  8 U.S.T.,PT.I,P.
1057, T.I.A.S. NO. 3867. 

WASHINGTON BARS THE USE OF NETS IN FISHING FOR SALMON IN THE
INTERNATIONAL WATERS OF THE PACIFIC.  WASH.  REV. CODE SEC. 75.12.220. 

/3/  WASH. ADMIN. CODE SECS. 220-16-010 TO 220-48-060 (SALMON);
WASH. DEPT.OF GAME, PERM.  REGS.  NOS. 32-35 (1964), TEMP.  REG.  NO.
273 (1968) (STEELHEAD). 

/4/  WASH. REV. CODE SECS. 75.28-010-75.28.380; SECS. 77.32.005
77.32.280. 

/5/  WASH. DEPT. OF GAME, PERM.  REG.  NO. 34 (1964). 

/6/  WASH. REV. CODE SEC.75.12.140 DEFINES THE PERMISSIBLE AREAS FOR
REEF NET FISHING.  SECTION 75.12.010, WHILE CONTAINING A PROHIBITION
AGAINST COMMERCIAL FISHING IN A LARGE SALT WATER AREA, ALLOWS THE
DIRECTOR OF FISHERIES TO PERMIT COMMERCIAL FISHING THERE WITHIN STATED
TIMES AND WITH PRESCRIBED GEAR.  AND SEE WASH. ADMIN. CODE SECS. 220-32
010 TO 220-32-030 (COLUMBIA RIVER AREA); SECS. 220-36-010 TO 220-36-020
(GRAYS HARBOR AREA); SECS. 220-40-010 TO 220-40-020 (WILLAPA HARBOR
AREA); SECS. 220-48-010 TO 220-48-060 (PUGET SOUND AREA).  COMMERCIAL
FISHING IN OTHER AREAS IS BANNED.  WASH. REV. CODE SEC. 75.12.160;
WASH. ADMIN. CODE SEC. 220-20-010. 

/7/  WASH. REV. CODE SECS 75.12.060, 77.16.060. 

/8/  WASH. REV. CODE SEC. 75.12.280.  IT APPEARS THAT THE
MONOFILAMENT TYPE OF GEAR (MADE OF PLASTIC IS LESS VISIBLE IN CLEAR
WATER IN DAYLIGHT THAN THE NYLON WEB. 

/9/  WASH. ADMIN. CODE SEC. 220-48-020. 

/10/  WASH. ADMIN. CODE SEC. 220-48-020 (10). 

/11/  PETITIONERS IN NO. 247 ARGUE THAT THE WASHINGTON COURTS LACKED
JURISDICTION TO ENTERTAIN AN ACTION AGAINST THE TRIBE WITHOUT THE
CONSENT OF THE TRIBE OR THE UNITED STATES GOVERNMENT (CITING UNITED
STATES V. UNITED STATES FIDELITY & GUARANTY CO., 308 U.S. 506, AND
TURNER V. UNITED STATES, 248 U.S. 354), VIEWING THE SUIT AS ONE TO
"EXTINGUISH A TRIBAL COMMUNAL FISHING RIGHT GUARANTEED BY FEDERAL
TREATY."  THIS CASE, HOWEVER, IS A SUIT TO ENJOIN VIOLATIONS OF STATE
LAW BY INDIVIDUAL TRIBAL MEMBERS FISHING OFF THE RESERVATION.  AS SUCH,
IT IS ANALOGOUS TO PROSECUTION OF INDIVIDUAL INDIANS FOR CRIMES
COMMITTED OFF RESERVATION LANDS, A MATTER FOR WHICH THERE HAS BEEN NO
GRANT OF EXCLUSIVE JURISDICTION TO FEDERAL COURTS.  SEE, E.G.,
DEMARRIAS V. SOUTH DAKOTA, 319 F.2D 845 (C.A. 8TH CIR. 1963); BUCKMAN
V. STATE, 139 MONT. 630, 366 P.2D 346 (1961).  WITH RESPECT TO CRIMES
COMMITTED BY INDIANS WITHIN RESERVATION BOUNDARIES, SEE 18 U.S.C. 1153,
1162.  AND SEE SEC. 401(A) OF TITLE IV OF THE 1968 CIVIL RIGHTS ACT,
PUB. L. NO. 90-284, 82 STAT.78; SEYMOUR V. SUPERINTENDENT, 368 U.S.
351; UNITED STATES V. CELESTINE, 215 U.S. 278. 

/12/  A PURSE SEINE IS A TYPE OF GEAR THAT ENCIRCLES A SCHOOL OF
FISH, LEAD WEIGHTS TAKING THE NET DOWN, AND A BOAT OPERATING AT EACH
END OF THE NET.  A LINE RUNS THROUGH RINGS ON THE BOTTOM OF THE NET,
MAKING IT POSSIBLE TO CLOSE THE BOTTOM OF THE NET.  WASH. ADMIN. CODE
SEC. 220-16-010 (15). 

A GILL NET HAS A MESH WHICH FISH CANNOT BACK OUT OF ONCE THEIR HEADS
GET THROUGH.  GILL NET FISHING IS DRIFT FISHING, THE NET BEING UP TO
1,800 FEET IN LENGTH.  WASH. ADMIN. CODE SEC. 220-16-010(8). 

PURSE SEINES AND DRIFT GILL NETS ARE USED IN SALT WATER. 

/13/  SET GILL NETS ARE OFTEN ANCHORED AT ONE END, STRETCHED ON A
CORK LINE, AND HELD DOWN BY WEIGHTS, WHILE DRIFTING AT THE OTHER END. 
THEY ARE OFTEN LOCATED ONE ABOVE ANOTHER AT A SHORT DISTANCE.  FISH ARE
TAKEN BY HAND OUT OF THE NETS AS A BOAT TRAVELS ITS LENGTH.  THE MESH
IN THE GILL NET VARIES, DEPENDING ON THE SIZE OF THE SPECIES OF SALMON
THAT ARE RUNNING-- CHINOOK, 8 TO 8 1/2 INCHES; SILVER, CHUM, AND
SOCKEYE, 5 1/2 INCHES.  SET GILL NETS RUN FROM 40 TO 150 FEET DEPENDING
ON THE WIDTH OF THE RIVER AT THE POINT THEY ARE USED.  WASH. ADMIN.
CODE SEC. 220-16-010 (19). 

/14/  MUCH EMPHASIS IS PLACED ON MAISON V. CONFEDERATED TRIBES, 314
F.2D 169 (C.A. 9TH CIR. 1963), WHERE ANOTHER TREATY RIGHT PERTAINING TO
OTHER INDIANS WAS TENDERED IN OPPOSITION TO OREGON'S POER TO REGULATE
SALMON FISHING IN THE INTERESTS OF CONSERVATION.  THIS TREATY GAVE THE
INDIANS THE RIGHT TO FISH OFF THE RESERVATION AT ALL "USUAL AND
ACCUSTOMED STATIONS IN COMMON WITH CITIZENS OF THE UNITED STATES." 
ID., AT 170.  THE COURT OF APPEALS HELD THAT OREGON COULD REGULATE THE
INDIANS' TREATY RIGHT TO FISH UNDER TWO CONDITIONS:  "FIRST, THAT THERE
IS A NEED TO LIMIT THE TAKING OF FISH, SECOND, THAT THE PARTICULAR
REGULATION SOUGHT TO BE IMPOSED IS 'INDISPENSABLE' TO THE
ACCOMPLISHMENT OF THE NEEDED LIMITATION."  ID., AT 172. 

THE IDEA THAT THE CONSERVATION MEASURE BE "INDISPENSABLE" IS DERIVED
FROM TULEE V. WASHINGTON, SUPRA, WHERE IN STRIKING DOWN THE LICENSE FEE
WE SAID THAT "THE IMPOSITION OF LICENSE FEES IS NOT INDISPENSABLE TO
THE EFFECTIVENESS OF A STATE CONSERVATION PROGRAM."  315 U.S.,AT 685. 
BUT THAT STATEMENT IN ITS CONTEXT MEANT NO MORE THAN THAT IT WOULD,
INDEED, BE UNUSUAL FOR A STATE TO HAVE THE POWER TO TAX THE EXERCISE OF
A "FEDERAL RIGHT."  AS STATED BY THE COURT IN THE SENTENCE IMMEDIATELY
FOLLOWING, THE LICENSE FEE "ACTS UPON THE INDIANS AS A CHARGE FOR
EXERCISING THE VERY RIGHT THEIR ANCESTORS INTENDED TO RESERVE."  IBID.
CF. MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 112:  "THE POWER TO TAX THE
EXERCISE OF A PRIVILEGE IS THE POWER TO CONTROL OR SUPPRESS ITS
ENJOYMENT." 

AS TO A "REGULATION" CONCERNING THE TIME AND MANNER OF FISHING
OUTSIDE THE RESERVATION (AS OPPOSED TO A "TAX"), WE SAID THAT THE POWER
OF THE STATE WAS TO BE MEASURED BY WHETHER IT WAS "NECESSARY FOR THE
CONSERVATION OF FISH."  315 U.S.,AT 684. 

THE MEASURE OF THE LEGAL PROPRIETY OF THOSE KINDS OF CONSERVATION
MEASURES IS THEREFORE DISTINCT FROM THE FEDERAL CONSTITUTIONAL STANDARD
CONCERNING THE SCOPE OF THE POLICE POWER OF A STATE.  SEE FERGUSON V.
SKRUPA, 372 U.S. 726; WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483;
DANIEL V. FAMILY INS. CO., 336 U.S. 220; OLSEN V. NEBRASKA, 313 U.S.
236. 

/15/  IN NO. 319, THE PARTIES ENTERED INTO A STIPULATION OF FACTS
WHICH, BECAUSE OF ITS SCOPE, MADE UNNECESSARY "THE TAILORING OF THE
INJUNCTION TO MEET A SPECIFIC SITUATION, AS IN THE PUYALLUP CASE . . .
."  70 WASH.2D, AT 280, 422 P.2D, AT 774.  THE WASHINGTON SUPREME COURT
DID, HOWEVER, REMAND TO THE TRIAL COURT WITH INSTRUCTIONS TO LIMIT THE
INJUNCTION ONLY TO THOSE VIOLATIONS OF WASHINGTON LAW THAT HAD BEEN
STIPULATED TO BE PRESENTLY NECESSARY TO THE CONSERVATION OF THE FISH
RUNS.  IT WAS STIPULATED THAT THE "USUAL AND ACCUSTOMED FISHING
GROUNDS" (WITHIN THE MEANING OF THE TREATY) ENCOMPASSED THE NISQUALLY
RIVER AND ITS TRIBUTARIES DOWNSTREAM FROM THE NISQUALLY RESERVATION. 
THE PARTIES FURTHER STIPULATED THAT THE DEFENDANTS HAD FISHED CONTRARY
TO STATE FISHING CONSERVATION LAWS AND REGULATIONS SINCE 1960; THAT
"(IF PERMITTED TO CONTINUE, THE DEFENDANTS'  COMMERCIAL FISHERY WOULD
VIRTUALLY EXTERMINATE THE SALMON AND STEELHEAD FISH RUNS OF THE
NISQUALLY RIVER"; AND THAT "IT IS NECESSARY FOR PROPER CONSERVATION OF
THE SALMON AND STEELHEAD FISH RUNS OF THE NISQUALLY RIVER . . . THAT
THE PLAINTIFFS ENFORCE STATE FISHERY CONSERVATION LAWS AND REGULATIONS
TO THE FISHING ACTIVITIES OF THE DEFENDANTS AT THEIR USUAL AND
ACCUSTOMED GROUNDS." 

ARTHUR KNODEL ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER IN
NO. 247.  JACK E. TANNER ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONERS IN NO. 319. 

JOSEPH L. CONIFF, SPECIAL ASSISTANT ATTORNEY GENERAL OF WASHINGTON,
AND MIKE R. JOHNSTON, ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE FOR
RESPONDENTS IN BOTH CASES.  WITH THEM ON THE BRIEFS WAS JOHN J.
O'CONNELL, ATTORNEY GENERAL. 

JOHN S. MARTIN, JR., ARGUED THE CAUSE FOR THE UNITED STATES, AS
AMICUS CURIAE, URGING REVERSAL IN BOTH CASES.  WITH HIM ON THE BRIEF
WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL MARTZ,
LOUIS F. CLAIBORNE, ROGER P. MARQUIS, AND EDMUND B. CLARK. 

GEORGE S. WOODWORTH, ASSISTANT ATTORNEY GENERAL, ARGUED THE CAUSE
FOR THE STATE OF OREGON, AS AMICUS CURIAE, URGING AFFIRMANCE IN BOTH
CASES.  WITH HIM ON THE BRIEF WERE ROBERT Y. THORNTON, ATTORNEY
GENERAL, AND ROY C. ATCHISON AND HENRY S. KANE, ASSISTANT ATTORNEYS
GENERAL.  T. J. JONES III ARGUED THE CAUSE FOR THE STATE OF IDAHO FISH
AND GAME DEPARTMENT, AS AMICUS CURIAE, URGING AFFIRMANCE IN BOTH
CASES.  WITH HIM ON THE BRIEF WAS ALLAN G. SHEPARD, ATTORNEY GENERAL OF
IDAHO. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL IN NO. 247, WERE FILED BY
ARTHUR LAZARUS, JR., FOR THE ASSOCIATION ON AMERICAN INDIAN AFFAIRS,
INC., BY ALBERT J. AHERN FOR THE NATIONAL CONGRESS OF AMERICAN INDIANS,
AND BY JAMES B. HOVIS FOR THE CONFEDERATED BANDS AND TRIBES OF THE
YAKIMA INDIAN NATION. 
..END :























MENOMINEE TRIBE V. UNITED STATES, 391 U.S. 404 


       MENOMINEE TRIBE OF INDIANS V. UNITED STATES

   CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

   NO. 187.  ARGUED JANUARY 22, 1968.-- REARGUED APRIL 25,

           1968.-- DECIDED MAY 27, 1968. 


THE MENOMINEE TRIBE OF INDIANS BROUGHT THIS ACTION IN THE COURT OF
CLAIMS TO RECOVER COMPENSATION FOR THE LOSS OF THEIR HUNTING AND
FISHING RIGHTS, WHICH THE WISCONSIN SUPREME COURT IN ANOTHER PROCEEDING
HAD HELD HAD BEEN ABROGATED BY THE MENOMINEE TERMINATION ACT OF 1954. 
THE TERMINATION ACT, WHICH DID NOT BECOME FULLY EFFECTIVE UNTIL 1961,
PROVIDED FOR THE TERMINATION OF FEDERAL SUPERVISION OVER THE PROPERTY
AND MEMBERS OF THE TRIBE, WHEREUPON STATE LAWS WERE TO BECOME
APPLICABLE TO THEM IN THE SAME MANNER AS THEY APPLIED TO OTHERS.  THE
SAME CONGRESS THAT PASSED THAT ACT ALSO ENACTED PUBLIC LAW 280, WHICH
TWO MONTHS AFTER THE TERMINATION ACT BECAME LAW WAS AMENDED TO APPLY
SPECIFICALLY TO THE MENOMINEE RESERVATION.  PUBLIC LAW 280 GRANTED TO
CERTAIN STATES, INCLUDING WISCONSIN, GENERAL JURISDICTION OVER "INDIAN
COUNTRY" WITHIN THEIR BOUNDARIES, BUT WITH THE PROVISO THAT "NOTHING IN
THIS SECTION . . . SHALL DEPRIVE ANY INDIAN OR INDIAN TRIBE . . . OF
ANY RIGHT, PRIVILEGE, OR IMMUNITY AFFORDED UNDER FEDERAL TREATY . . .
WITH RESPECT TO HUNTING, TRAPPING, OR FISHING OR THE CONTROL,
LICENSING, OR REGULATION THEROF."  THE COURT OF CLAIMS IN LIGHT OF
PUBLIC LAW 280 HELD THAT THE TERMINATION ACT DID NOT EXTINGUISH THE
TRIBE'S HUNTING AND FISHING RIGHTS BUT THAT THESE WERE RETAINED UNDER
THE TREATY OF WOLF RIVER OF 1854, WHEREBY THE UNITED STATES HAD SET
ASIDE LAND FOR THE MENOMINEES "FOR THE HOME, TO BE HELD AS INDIAN LANDS
ARE HELD."  BOTH PETITIONER AND RESPONDENT ON ORAL ARGUMENT HERE HAVE
URGED AFFIRMANCE OF THE COURT OF CLAIMS JUDGMENT; THE STATE OF
WISCONSIN, APPEARING AS AMICUS CURIAE, HAS ARGUED FOR REVERSAL.  HELD:

1.  THE LANGUAGE IN THE TREATY OF WOLF RIVER "TO BE HELD AS INDIAN
LANDS ARE HELD" INCLUDES THE RIGHT TO FISH AND TO HUNT.  PP. 405-406. 

2.  THE MENOMINEE TRIBE'S HUNTING AND FISHING RIGHTS UNDER THE
TREATY SURVIVED THE TERMINATION ACT OF 1954.  PP. 410-413. 

(A) IN 1954, WHEN PUBLIC LAW 280, AS AMENDED, TOOK EFFECT, THE
MENOMINEE RESERVATION WAS STILL "INDIAN COUNTRY" WITHIN THE MEANING OF
THAT LAW.  P. 411. 

(B) PUBLIC LAW 280 MUST BE CONSIDERED IN PARI MATERIA WITH THE
TERMINATION ACT AND THE TWO ACTS READ TOGETHER MEAN THAT ALTHOUGH
FEDERAL SUPERVISION OF THE TRIBE WAS TO CEASE AND ALL TRIBAL PROPERTY
WAS TO BE TRANSFERRED TO NEW HANDS, THE HUNTING AND FISHING RIGHTS
GRANTED OR PRESERVED BY THE TREATY SURVIVED THE TERMINATION ACT.  411
412. 

(C) THE PURPOSE TO ABROGATE TREATY RIGHTS OF INDIANS IS NOT TO BE
LIGHTLY IMPUTED TO CONGRESS.  PP.412-413. 

179 CT.CL. 496, 388 F.2D 998, AFFIRMED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE MENOMINEE TRIBE OF INDIANS WAS GRANTED A RESERVATION IN WISCONSIN
BY THE TREATY OF WOLF RIVER IN 1954.  10 STAT. 1064.  BY THIS TREATY
THE MENOMINEES RETROCEDED CERTAIN LANDS THEY HAD ACQUIRED UNDER AN
EARLIER TREATY AND THE UNITED STATES CONFIRMEND TO THEM THE WOLF RIVER
RESERVATION "FOR A HOME, TO BE HELD AS INDIAN LANDS ARE HELD."  NOTHING
WAS SAID IN THE 1854 TREATY ABOUT HUNTING AND FISHING RIGHTS.  YET WE
AGREE WITH THE COURT OF CLAIMS /1/  THAT THE LANGUAGE "TO BE HELD AS
INDIAN LANDS ARE HELD" INCLUDES THE RIGHT TO FISH AND TO HUNT.  THE
RECORD SHOWS THAT THE LANDS COVERED BY THE WOLF RIVER TREATY OF 1854
WERE SELECTED PRECISELY BECAUSE THEY HAD AN ABUNDANCE OF GAME.  SEE
MENOMINEE TRIBE V. UNITED STATES, 95 CT.CL. 232, 240-241 (1941).  THE
ESSENCE OF THE TREATY OF WOLF RIVER WAS THAT THE INDIANS WERE
AUTHORIZED TO MAINTAIN ON THE NEW LANDS CEDED TO THEM AS A RESERVATION
THEIR WAY OF LIFE WHICH INCLUDED HUNTING AND FISHING.  /2/ 

WHAT THE PRECISE NATURE AND EXTENT OF THOSE HUNTING AND FISHING
RIGHTS WERE WE NEED NOT AT THIS TIME DETERMINE.  FOR THE ISSUE TENDERED
BY THE PRESENT DECISION OF THE COURT OF CLAIMS, 179 CT.CL. 496, 388
F.2D 998, IS WHETHER THOSE RIGHTS, WHATEVER THEIR PRECISE EXTENT, HAVE
BEEN ESTINGUISHED. 

THAT ISSUE AROSE BECAUSE, BEGINNING IN 1962, WISCONSIN TOOK THE
POSITION THAT THE MENOMINEES WERE SUBJECT TO HER HUNTING AND FISHING
REGULATIONS.  WISCONSIN PROSECUTED THREE MENOMINEES FOR VIOLATING THOSE
REGULATIONS AND THE WISCONSIN SUPREME COURT HELD /3/  THAT THE STATE
REGULATIONS WERE VALID, AS THE HUNTING AND FISHING RIGHTS OF THE
MENOMINEES HAD BEEN ABROGATED BY CONGRESS IN THE MENOMINEE INDIAN
TERMINATION ACT OF 1954.  68 STAT. 250, AS AMENDED, 25 U.S.C. 891-902. 

THEREUPON THE TRIBE BROUGHT SUIT IN THE COURT OF CLAIMS AGAINST THE
UNITED STATES TO RECOVER JUST COMPENSATION FOR THE LOSS OF THOSE
HUNTING AND FISHING RIGHTS.  /4/  THE COURT OF CLAIMS BY A DIVIDED VOTE
HELD THAT THE TRIBE POSSESSED HUNTING AND FISHING RIGHTS UNDER THE WOLF
RIVER TREATY; BUT IT HELD, CONTRARY TO THE WISCONSIN SUPREME COURT,
THAT THOSE RIGHTS WERE NOT ABROGATED BY THE TERMINATION ACT OF 1954. 
WE GRANTED THE PETITION FOR A WRIT OF CERTIORARI IN ORDER TO RESOLVE
THAT CONFLICT BETWEEN THE TWO COURTS.  389 U.S. 811.  ON ORAL ARGUMENT
BOTH PETITIONER AND RESPONDENT URGED THAT THE JUDGMENT OF THE COURT OF
CLAIMS BE AFFIRMED.  THE STATE OF WISCONSIN APPEARED AS AMICUS CURIAE
AND ARGUED THAT THAT JUDGMENT BE REVERSED. 

IN 1953 CONGRESS BY CONCURRENT RESOLUTION /5/  INSTRUCTED THE
SECRETARY OF THE INTERIOR TO RECOMMEND LEGISLATION FOR THE WITHDRAWAL
OF FEDERAL SUPERVISION OVER CERTAIN AMERICAN INDIAN TRIBES, INCLUDING
THE MENOMINEES.  SEVERAL BILLS WERE OFFERED, ONE FOR THE MENOMINEE
TRIBE THAT EXPRESSLY PRESERVED HUNTING AND FISHING RIGHTS.  /6/  BUT
THE ONE THAT BECAME THE TERMINATION ACT OF 1954, VIZ., H.R. 2828, DID
NOT MENTION HUNTING AND FISHING RIGHTS.  MOREOVER, COUNSEL FOR THE
MENOMINEES SPOKE AGAINST THE BILL, ARGUING THAT ITS SILENCE WOULD BE
IMPLICATION ABOLISH THOSE HUNTING AND FISHING RIGHTS.  /7/  IT IS
THEREFORE ARGUED THAT THEY WERE ABOLISHED BY THE TERMINATION ACT. 

THE PURPOSE OF THE 1954 ACT WAS BY ITS TERMS "TO PROVIDE FOR ORDERLY
TERMINATION OF FEDERAL SUPERVISION OVER THE PROPERTY AND MEMBERS" OF
THE TRIBE.  UNDER ITS PROVISIONS, THE TRIBE WAS TO FORMULATE A PLAN FOR
FUTURE CONTROL OF TRIBAL PROPERTY AND SERVICE FUNCTIONS THERETOFORE
CONDUCTED BY THE UNITED STATES.  ON OR BEFORE APRIL 30, 1961, THE
SECRETARY WAS TO TRANSFER TO A TRIBAL CORPORATION OR TO A TRUSTEE
CHOSEN BY HIM ALL PROPERTY REAL AND PERSONAL HELD IN TRUST FOR THE
TRIBE BY THE UNITED STATES.  /8/ 

THE MENOMINEES SUBMITTED A PLAN, LOOKING TOWARD THE CREATION OF A
COUNTY IN WISCONSIN OUT OF THE FORMER RESERVATION AND THE CREATION BY
THE INDIANS OF A WISCONSIN CORPORATION TO HOLD OTHER PROPERTY OF THE
TRIBE AND ITS MEMBERS.  THE SECRETARY OF THE INTERIOR APPROVED THE PLAN
/9/  WITH MODIFICATIONS; THE MENOMINEE ENTERPRISES, INC., WAS
INCORPORATED; /10/  AND NUMEROUS ANCILLARY LAWS WERE PASSED BY
WISCONSIN INTEGRATING THE FORMER RESERVATION INTO ITS COUNTY SYSTEM OF
GOVERNMENT.  THE TERMINATION ACT PROVIDED THAT AFTER THE TRANSFER BY
THE SECRETARY OF TITLE TO THE PROPERTY OF THE TRIBE, ALL FEDERAL
SUPERVISION WAS TO END AND "THE LAWS OF THE SEVERAL STATES SHALL APPLY
TO THE TRIBE AND ITS MEMBERS IN THE SAME MANNER AS THEY APPLY TO OTHER
CITIZENS OR PERSONS WITHIN THEIR JURISDICTION." 

IT IS THEREFORE ARGUED WITH FORCE THAT THE TERMINATION ACT OF 1954,
WHICH BECAME FULLY EFFECTIVE IN 1961, SUBMITTED THE HUNTING AND FISHING
RIGHTS OF THE INDIANS TO STATE REGULATION AND CONTROL.  WE REACH,
HOWEVER, THE OPPOSITE CONCLUSION.  THE SAME CONGRESS THAT PASSED THE
TERMINATION ACT ALSO PASSED PUBLIC LAW 280, 67 STAT. 588, AS AMENDED,
18 U.S.C. 1162.  THE LATTER CAME OUT OF THE SAME COMMITTEES OF THE
SENATE AND THE HOUSE AS DID THE TERMINATION ACT; AND IT WAS AMENDED
/11/  IN A WAY THAT IS CRITICAL HERE ONLY TWO MONTHS AFTER THE
TERMINATION ACT BECAME LAW.  AS AMENDED, PUBLIC LAW 280 GRANTED
DESIGNATED STATES, INCLUDING WISCONSIN, JURISDICTION "OVER OFFENSES
COMMITTED BY OR AGAINST INDIANS IN THE AREAS OF INDIAN COUNTRY" NAMED
IN THE ACT, WHICH IN THE CASE OF WISCONSIN DESCRIBED AS "ALL INDIAN
COUNTRY WITHIN THE STATE."  BUT PUBLIC LAW 280 WENT ON TO SAY THAT
"NOTHING IN THIS SECTION . . . SHALL DEPRIVE ANY INDIAN OR ANY INDIAN
TRIBE, BAND, OR COMMUNITY OF ANY RIGHT, PRIVILEGE, OR IMMUNITY AFFORDED
UNDER FEDERAL TREATY, AGREEMENT, OR STATUTE WITH RESPECT TO HUNTING,
TRAPPING, OR FISHING OR THE CONTROL, LICENSING, OR REGULATION
THEREOF."  THAT PROVISION ON ITS FACE CONTAINS NO LIMITATION; IT
PROTECTS ANY HUNTING, TRAPPING, OR FISHING RIGHT GRANTED BY A FEDERAL
TREATY.  PUBLIC LAW 280, AS AMENDED, BECAME THE LAW IN 1954, NEARLY
SEVEN YEARS BEFORE THE TERMINATION ACT BECAME FULLY EFFECTIVE IN 1961. 
IN 1954, WHEN PUBLIC LAW 280 BECAME EFFECTIVE, THE MENOMINEE
RESERVATION WAS STILL "INDIAN COUNTRY" WITHIN THE MEANING OF PUBLIC LAW
280. 

PUBLIC LAW 280 MUST THEREFORE BE CONSIDERED IN PARI MATERIA WITH THE
TERMINATION ACT.  THE TWO ACTS READ TOGETHER MEAN TO US THAT, ALTHOUGH
FEDERAL SUPERVISION OF THE TRIBE WAS TO CEASE AND ALL TRIBAL PROPERTY
WAS TO BE TRANSFERRED TO NEW HANDS, THE HUNTING AND FISHING RIGHTS
GRANTED OR PRESERVED BY THE WOLF RIVER TREATY OF 1854 /12/  SURVIVED
THE TERMINATION ACT OF 1954. 

THIS CONSTRUCTION IS IN ACCORD WITH THE OVERALL LEGISLATIVE PLAN. 
THE TERMINATION ACT BY ITS TERMS PROVIDED FOR THE "ORDERLY TERMINATION
OF FEDERAL SUPERVISON OVER THE PROPERTY AND MEMBERS" OF THE TRIBE.  25
U.S.C. 891.  THE FEDERAL GOVERNMENT CEDED TO THE STATE OF WISCONSIN ITS
POWER OF SUPERVISION OVER THE TRIBE AND THE RESERVATION LANDS, AS
EVIDENT FROM THE PROVISION OF THE TERMINATION ACT THAT THE LAWS OF
WISCONSIN "SHALL APPLY TO THE TRIBE AND ITS MEMBERS IN THE SAME MANNER
AS THEY APPLY TO OTHER CITIZENS OR PERSONS WITHIN (ITS) JURISDICTION." 

THE PROVISION OF THE TERMINATION ACT (25 U.S.C. 899) THAT "ALL
STATUTES OF THE UNITED STATES WHICH AFFECT INDIANS BECAUSE OF THEIR
STATUS AS INDIANS SHALL NO LONGER BE APPLICABLE TO THE MEMBERS OF THE
TRIBE" PLAINLY REFERS TO THE TERMINATION OF FEDERAL SUPERVISION.  THE
USE OF THE WORD "STATUTES" IS POTENT EVIDENCE THAT NO TREATY WAS IN
MIND. 

WE DECLINE TO CONSTRUE THE TERMINATION ACT AS A BACKHANDED WAY OF
ABROGATING THE HUNTING AND FISHING RIGHTS OF THESE INDIANS.  WHILE THE
POWER TO ABROGATE THOSE RIGHTS EXISTS (SEE LONE WOLF V. HITCHCOCK, 187
U.S. 553, 564-567) "THE INTENTION TO ABROGATE OR MODIFY A TREATY IS NOT
TO BE LIGHTLY IMPUTED TO THE CONGRESS."  PIGEON RIVER CO. V. COX CO.,
281 U.S. 138, 160.  SEE ALSO SQUIRE V. CAPOEMAN, 351 U.S. 1. 

OUR CONCLUSION IS BUTTRESSED BY THE REMARKS OF THE LEGISLATOR
CHIEFLY RESPONSIBLE FOR GUIDING THE TERMINATION ACT TO ENACTMENT,
SENATOR WATKINS, WHO STATED UPON THE OCCASION OF THE SIGNING OF THE
BILL THAT IT "IN NO WAY VIOLATES ANY TREATY OBLIGATION WITH THIS
TRIBE."  /13/ 

WE FIND IT DIFFICULT TO BELIEVE THAT CONGRESS, WITHOUT EXPLICIT
STATEMENT, WOULD SUBJECT THE UNITED STATES TO A CLAIM FOR COMPENSATION
/14/  BY DESTROYING PROPERTY RIGHTS CONFERRED BY TREATY, PARTICULARLY
WHEN CONGRESS WAS PURPORTING BY THE TERMINATION ACT TO SETTLE THE
GOVERNMENT'S FINANCIAL OBLIGATIONS TOWARD THE INDIANS.  /15/ 

ACCORDINGLY THE JUDGMENT OF THE COURT OF CLAIMS IS

   AFFIRMED. 

/1/  MENOMINEE TRIBE V. UNITED STATES, 179 CT.CL. 496, 503-504, 388
F.2D 998, 1002. 

/2/  AS STATED BY THE SUPREME COURT OF WISCONSIN: 

"IT WOULD SEEM UNLIKELY THAT THE MENOMINEES WOULD HAVE KNOWINGLY
RELINQUISHED THEIR SPECIAL FISHING AND HUNTING RIGHTS WHICH THEY
ENJOYED ON THEIR OWN LANDS, AND HAVE ACCEPTED IN EXCHANGE OTHER LANDS
WITH RESPECT TO WHICH SUCH RIGHTS DID NOT EXTEND.  THEY UNDOUBTEDLY
BELIEVED THAT THESE RIGHTS WERE GUARANTEED TO THEM WHEN THESE OTHER
LANDS WERE CEDED TO THEM 'TO BE HELD AS INDIAN LANDS ARE HELD.' 
CONSTRUING THIS AMBIGUOUS PROVISION OF THE 1854 TREATY FAVORABLY TO THE
MENOMINEES, WE DETERMINE THAT THEY ENJOYED THE SAME EXCLUSIVE HUNTING
RIGHTS FREE FROM THE RESTRICTIONS OF THE STATE'S GAME LAWS OVER THE
CEDED LANDS, WHICH COMPRISED THE MENOMINEE INDIAN RESERVATION, AS THEY
HAD ENJOYED OVER THE LANDS CEDED TO THE UNITED STATES BY THE 1848
TREATY."  STATE V. SANAPAW, 21 WIS.2D 377, 383, 124 N.W.2D 41, 44
(1963). 

THE COURT SAID IN UNITED STATES V. WINANS, 198 U.S. 371, 380-381,
"(WE WILL CONSTRUE A TREATY WITH THE INDIANS AS 'THAT UNLETTERED
PEOPLE' UNDERSTOOD IT, AND 'AS JUSTICE AND REASON DEMAND, IN ALL CASES
WHERE POWER IS EXERTED BY THE STRONG OVER THOSE TO WHOM THEY OWE CARE
AND PROTECTION,' AND COUNTERPOISE THE INEQUALITY 'BY THE SUPERIOR
JUSTICE WHICH LOOKS ONLY TO THE SUBSTANCE OF THE RIGHT WITHOUT REGARD
TO TECHNICAL RULES.'" 

AS THE SOLICITOR GENERAL POINTS OUT IN HIS BRIEF, THE WORDS "TO BE
HELD AS INDIAN LANDS ARE HELD" SUM UP IN A SINGLE PHRASE THE FAMILIAR
PROVISIONS OF EARLIER TREATIES WHICH RECOGNIZED HUNTING AND FISHING AS
NORMAL INCIDENTS OF INDIAN LIFE.  SEE TREATY OF JANUARY 3, 1986, WITH
THE CHOCTAWS, 7 STAT. 22; TREATY OF JANUARY 31, 1786, WITH THE
SHAWNEES, 7 STAT. 27; TREATY OF JANUARY 9, 1789, WITH THE WYANDOTS, 7
STAT. 29; TREATY OF AUGUST 3, 1795, WITH THE WYANDOTS, 7 STAT. 52;
TREATY OF NOVEMBER 10, 1808, WITH THE OSAGES, 7 STAT. 109; TREATY OF
AUGUST 24, 1835, WITH THE COMANCHES, 7 STAT. 475. 

/3/  STATE V. SANAPAW, 21 WIS.2D 377, 124 N.W.2D 41. 

/4/  SEE SHOSHONE TRIBE V. UNITED STATES, 299 U.S. 476. 

/5/  H.R. CON.  RES.  108, 83D CONG., 1ST SESS., 67 STAT. B132. 

/6/  S. 2813 AND H.R. 7135, 83D CONG., 2D SESS. 

/7/  JOINT HEARINGS, SUBCOMMITTEES OF COMMITTEES ON INTERIOR AND
INSULAR AFFAIRS, 83D CONG., 2D SESS., PT. 6, ON S. 2813, H.R. 2828, AND
H.R. 7135, PP. 697, 704. 

/8/  THE TERMINATION ACT ALSO PROVIDED FOR A CLOSING OF THE
MEMBERSHIP ROLL OF THE TRIBE WITH DISTRIBUTION TO THE ENROLLEES OF
CERTIFICATES OF BENEFICIAL INTEREST INTHE TRIBAL PROPERTY.  THE ROLL
WAS CLOSED IN DECEMBER 1957.  22 FED.REG.  9951. 

/9/  26 FED.REG.  3726. 

/10/  WISCONSIN QUESTIONS WHETHER MENOMINEE ENTERPRISES, INC., TO
WHICH ALL TRIBAL ASSETS WERE CONVEYED PURSUANT TO THE TERMINATION PLAN
(26 FED.REG.  3726), SHOULD BE VIEWED AS THE SUCCESSOR ENTITY TO THE
TRIBE AND THE PRESENT HOLDER OF THE HUNTING AND FISHING RIGHTS, AND, IF
SO, TO WHAT EXTENT THE CORPORATION OR THE TRIBAL MEMBERS THEREOF CAN
WITHHOLD OR PARCEL OUT THESE RIGHTS. 

THE MENOMINEES, ON THE OTHER HAND, CLAIM THE RIGHTS ARE HELD BY
MENOMINEE INDIAN TRIBE OF WISCONSIN, INC., A TRIBAL BODY ORGANIZED IN
1962.  ITS ARTICLES OF INCORPORATION PROVIDE FOR FOUR CATEGORIES OF
MEMBERSHIP (ARTICLE X):  MENOMINEE INDIAN MEMBERSHIP (SEC.1(A)) (ALL
MENOMINEE INDIANS APPEARING ON THE FINAL ROLL OF THE TRIBE APPROVED BY
THE SECRETARY OF THE INTERIOR, N. 8, SUPRA); ASSOCIATE MEMBERSHIP OF
MENOMINEE DESCENDANTS (SEC.1(B)) (ANY DESCENDANTS OF ENROLLED MENOMINEE
INDIANS OR RECIPIENTS THROUGH INHERITANCE OF MENOMINEE ENTERPRISES
SECURITIES); ASSOCIATE MEMBERSHIP OF PERSONS MARRIED TO ENROLLED
MENOMINEES (SEC. 1(C)); AND ASSOCIATE MEMBERSHIP OF NON-INDIANS
(SEC.1(D)).  IN MARCH 1968, THE FIRST CATEGORY WAS ENLARGED BY
AMENDMENT OF ART. X, SEC. 1(A), OF THE ARTICLES OF INCORPORATION TO
INCLUDE ALL DESCENDANTS OF ENROLLED MENOMINEE INDIANS WITH AT LEAST ONE
QUARTER MENOMINEE BLOOD, ONE OR BOTH OF WHOSE PARENTS RESIDED ON THE
MENOMINEE RESERVATION AT THE TIME OF THE DESCENDANT'S BIRTH.  THE
CORPORATION ALSO ADOPTED A RESOLUTION DEFINING THOSE PERSONS ENTITLED
TO EXERCISE THE HUNTING AND FISHING RIGHTS, WHICH PROVIDED: 

"ALL TRIBAL MEMBERS, AS DEFINED IN ARTICLE X OF THE ARTICLES OF
INCORPORATION SECTION 1(A), AND ONLY SUCH MEMBERS, SHALL HAVE THE RIGHT
TO EXERCISE TRIBAL HUNTING AND FISHING RIGHTS, SUBJECT TO TRIBAL
REGULATIONS: 

"PROVIDED, HOWEVER, THAT ANY MEMBER WHO VIOLATES ANY TRIBAL HUNTING
OR FISHING REGULATION MAY UPON FINDING OF THE COUNCIL OF CHIEFS BE
DECLARED INELIGIBLE TO EXERCISE SUCH RIGHTS, FOR SUCH PERIOD OF TIME AS
THE COUNCIL OF CHIEFS MAY SPECIFY."     WE BELIEVE IT INAPPROPRIATE,
HOWEVER, TO RESOLVE THE QUESTION OF WHO THE BENEFICIARIES OF THE
HUNTING AND FISHING RIGHTS MAY BE; AND WE EXPRESSLY RESERVE DECISION ON
IT.  NEITHER IT NOR THE NATURE OF THOSE RIGHTS NOR THE EXTENT, IF ANY,
TO WHICH WISCONSIN MAY REGULATE THEM HAS BEEN FULLY BRIEFED AND ARGUED
BY THE PARTIES EITHER IN THE COURT OF CLAIMS OR IN THIS COURT, AND THE
POSTURE OF THE PRESENT LITIGATION DOES NOT REQUIRE THEIR RESOLUTION. 

/11/  AS ORIGINALLY ENACTED PUBLIC LAW 280 EXEMPTED THE MENOMINEES
FROM ITS PROVISIONS.  THE HOUSE REPORTS ON PUB. L. 280 (H.R. 1063, 83D
CONG., 1ST SESS.) AND ON PUB. L. 661 (H.R. 9821, 83D CONG., 2D SESS.)
INDICATE THAT THE MENOMINEES HAD SPECIFICALLY ASKED FOR EXEMPTION FROM
THE PROVISIONS OF THE BILL THAT EVENTUALLY BECAME PUB. L. 280, ON THE
GROUND THAT THEIR TRIBAL LAW AND ORDER PROGRAM WAS FUNCTIONING
SATISFACTORILY.  SUBSEQUENTLY, THE TRIBE RECONSIDERED ITS POSITION AND
SPONSORED H.R. 9821, AMENDING PUB. L. 280 TO EXTEND ITS PROVISIONS TO
THE MENOMINEE RESERVATION.  THE DEPARTMENT OF THE INTERIOR RECOMMENDED
FAVORABLE ACTION ON THE PROPOSED AMENDMENT, AND THE AMENDMENT WAS
ENACTED INTO LAW ON AUGUST 24, 1954 (68 STAT. 795), TWO MONTHS AFTER
THE PASSAGE OF THE MENOMINEE TERMINATION ACT.  SEE H.R. REP. NO. 848,
83D CONG., 1ST SESS., 6 (1953); H.R. REP. NO. 2322, 83D CONG., 2D SESS.
(1954). 

/12/  THE ACT CREATING THE WISCONSIN TERRITORY (5 STAT. 10)
CONTAINED AN EXPRESS RESERVATION OF INDIAN RIGHTS, THOUGH BOTH THE
ENABLING ACT OF 1846 (9 STAT. 56), AND THE ACT ADMITTING WISCONSIN TO
THE UNION IN 1848 (9 STAT. 233) WERE SILENT ON THE SUBJECT.  IT WAS
ONLY A FEW MONTHS AFTER WISCONSIN ACHIEVED STATEHOOD THAT THE
MENOMINEES CEDED ALL OF THEIR WISCONSIN LANDS TO THE UNITED STATES IN
ANTICIPATION OF THE TRIBE'S REMOVAL TO OTHER LANDS WEST OF THE
MISSISSIPPI.  TREATY OF OCTOBER 18,1848, 9 STAT. 952.  BUT AS ALREADY
NOTED, THIS REMOVAL NEVER FULLY SUCCEEDED, AND THE MENOMINEE
RESERVATION CREATED BY THE TREATY OF WOLF RIVER WAS CARVED OUT OF THE
LANDS THE INDIANS HAD PREVIOUSLY CEDED TO THE UNITED STATES. 

THE STATE ARGUES THAT SINCE IT WAS ADMITTED INTO THE UNION ON AN
EQUAL FOOTING WITH THE ORIGINAL STATES, ITS SOVEREIGNTY OVER THE LANDS
DESIGNATED IN 1854 AS THE MENOMINEE RESERVATION ATTACHED IN SOME DEGREE
BETWEEN THE TIME THE INDIANS CEDED ALL OF THEIR WISCONSIN LANDS TO THE
UNITED STATES IN 1848 AND THE TIME WHEN THE UNITED STATES CEDED BACK A
CERTAIN PORTION OF THOSE LANDS FOR THE RESERVATION IN 1854.  WISCONSIN
CONTENDS THAT ANY HUNTING OR FISHING PRIVILEGES GUARANTEED THE
MENOMINEES FREE FROM STATE REGULATION DID NOT SURVIVE THE DISSOLUTION
OF THE RESERVATION AND THE TERMINATION OF THE TRUSTEESHIP OF THE UNITED
STATES OVER THE MENOMINEES.  AT THAT TIME, IT IS SAID, WISCONSIN'S LONG
DORMANT POWER TO EXERCISE JURISDICTION OVER THOSE RESERVATION LANDS WAS
AWAKENED BY THE TERMINATION OF THE RESERVATION. 

IF ANY HIATUS IN TITLE TO THE RESERVATION LANDS IN QUESTION OCCURRED
BETWEEN 1848 AND 1854, ANY JURISDICTION THAT THE STATE MAY HAVE
ACQUIRED OVER THOSE WOULD NOT HAVE SURVIVED THE TREATY OF 1854.  THE
TREATY OF WOLF RIVER WAS, UNDER ARTICLE VI OF THE CONSTITUTION, THE
"SUPREME LAW OF THE LAND," AND THE EXERCISE OF RIGHTS ON RESERVATION
LANDS GUARANTEED TO THE TRIBE BY THE FEDERAL GOVERNMENT WOULD NOT BE
SUBJECT TO STATE REGULATION, AT LEAST IN ABSENCE OF A CESSION BY
CONGRESS.  CF. WARD V. RACE HORSE, 163 U.S. 504, 514.  IN THIS
CONNECTION IT SHOULD BE NOTED THAT IN 1853 THE WISCONSIN LEGISLATURE
CONSENTED TO THE ESTABLISHMENT OF THE MENOMINEE RESERVATION
SUBSEQUENTLY CONFIRMED BY THE 1854 TREATY (1853 WIS.JT.RES.,C. I), AN
ACTION WHICH CAN BE FAIRLY CONSTRUED AS A DISCLAIMER OF ANY
JURISDICTION THE STATE MAY HAVE POSSESSED. 

/13/  100 CONG.REC.  8538. 

/14/  SEE N. 4, SUPRA. 

/15/  COMPARE THE HEARINGS ON THE KLAMATH TERMINATION BILL, WHICH
TOOK PLACE SHORTLY BEFORE THE MENOMINEE BILLS WERE REACHED, IN WHICH
SENATOR WATKINS EXPRESSED THE VIEW THAT PERHAPS THE GOVERNMENT SHOULD
"BUY OUT" THE INDIANS' HUNTING AND FISHING RIGHTS RATHER THAN PRESERVE
THEM AFTER TERMINATION.  SEE JOINT HEARINGS, SUBCOMMITTEES OF THE
COMMITTEES ON INTERIOR AND INSULAR AFFAIRS, 83D CONG., 2D SESS., PT. 4,
ON S. 2745 AND H.R. 7320, PP. 254-255. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

BY THE TREATY OF WOLF RIVER IN 1854, 10 STAT. 1064, THE UNITED
STATES GRANTED TO THE MENOMINEE TRIBE OF INDIANS A RESERVATION "TO BE
HELD AS INDIAN LANDS ARE HELD."  AS THE COURT SAYS, THIS LANGUAGE
UNQUESTIONABLY CONFERRED SPECIAL HUNTING AND FISHING RIGHTS WITHIN THE
BOUNDARIES OF THE RESERVATION.  ONE HUNDRED YEARS LATER, IN THE
MENOMINEE INDIAN TERMINATION ACT OF 1954, 68 STAT. 250, 25 U.S.C. 891
902, CONGRESS PROVIDED FOR THE TERMINATION OF THE RESERVATION AND THE
TRANSFER OF TITLE TO A TRIBAL CORPORATION.  THE ACT PROVIDED THAT UPON
TERMINATION OF THE RESERVATION, 

"(THE LAWS OF THE SEVERAL STATES SHALL APPLY TO THE TRIBE AND ITS
MEMBERS IN THE SAME MANNER AS THEY APPLY TO OTHER CITIZENS OR PERSONS
WITHIN THEIR JURISDICTION."  25 U.S.C. 899.  /1/ THE RESERVATION WAS
FORMALLY TERMINATED ON APRIL 30, 1961, SEVEN YEARS AFTER THE
TERMINATION ACT, AND THE STATE OF WISCONSIN HAS EVER SINCE SUBJECTED
THE MENOMINEES, JUST AS ANY OTHER CITIZENS, TO ITS HUNTING AND FISHING
REGULATIONS.  STATE V. SANAPAW, 21 WIS.2D 377, 124 N.W.2D 41. 

THE MENOMINEES INSTITUTED THIS PROCEEDING AGAINST THE UNITED STATES,
ASKING COMPENSATION FOR THE TAKING OF THEIR SPECIAL RIGHTS.  SHOSHONE
TRIBE V. UNITED STATES, 299 U.S. 476.  THE COURT OF CLAIMS DENIED
COMPENSATION ON THE GROUND THAT THE TERMINATION ACT HAD NOT IN FACT
EXTINGUISHED THOSE RIGHTS, AND THAT THEY REMAINDED IMMUNE FROM
REGULATION BY WISCONSIN.  THE COURT TODAY AGREES.  I DO NOT. 

THE STATUTE IS PLAIN ON ITS FACE:  AFTER TERMINATION THE MENOMINEES
ARE FULLY SUBJECT TO STATE LAWS JUST AS OTHER CITIZENS ARE, AND NO
EXCEPTION IS MADE FOR HUNTING AND FISHING LAWS NOR DOES THE LEGISLATIVE
HISTORY CONTAIN ANY INDICATION THAT CONGRESS INTENDED TO SAY ANYTHING
OTHER THAN WHAT THE UNQUALIFIED WORDS OF THE STATUTE EXPRESS.  /2/  IN
FACT TWO BILLS WHICH WOULD HAVE EXPLICITLY PRESERVED HUNTING AND
FISHING RIGHTS /3/  WERE REJECTED IN FAVOR OF THE BILL ULTIMATELY
ADOPTED /4/  -- A BILL WHICH WAS OPPOSED BY COUNSEL FOR THE MENOMINEES
BECAUSE IT FAILED TO PRESERVE THEIR RIGHTS.  /5/ 

THE COURT TODAY HOLDS THAT THE TERMINATION ACT DOES NOT MEAN WHAT IT
SAYS.  THE COURT'S REASON FOR REACHING THIS REMARKABLE RESULT IS THAT
IT FINDS "IN PARI MATERIA" ANOTHER STATUTE WHICH, I SUBMIT , HAS
NOTHING WHATEVER TO DO WITH THIS CASE. 

THAT STATUE, PUBLIC LAW 280, 67 STAT. 588, AS AMENDED, 68 STAT. 795,
18 U.S.C. 1162 AND 28 U.S.C. 1360, GRANTED TO CERTAIN STATES, INCLUDING
WISCONSIN, GENERAL JURISDICTION OVER "INDIAN COUNTRY" WITHIN THEIR
BOUNDARIES.  /6/  SEVERAL EXCEPTIONS TO THE GENERAL GRANT WERE
ENUMERATED, INCLUDING AN EXCEPTION FROM THE GRANT OF CRIMINAL
JURISDICTION FOR TREATY-BASED HUNTING AND FISHING RIGHTS.  18 U.S.C.
1162(B).  BUT THIS CASE DOES NOT DEAL WITH STATE JURISDICTION OVER
INDIAN COUNTRY; IT DEALS WITH STATE JURISDICTION OVER INDIANS AFTER
INDIAN COUNTRY HAS BEEN TERMINATED.  WHEREAS PUBLIC LAW 280 PROVIDES
FOR THE CONTINUATION OF THE SPECIAL HUNTING AND FISHING RIGHTS WHILE A
RESERVATION EXISTS, THE TERMINATION ACT PROVIDES FOR THE APPLICABILITY
OF ALL STATE LAWS WITHOUT EXCEPTION AFTER THE RESERVATION HAS
DISAPPEARED.  /7/ 

THE TERMINATION ACT BY ITS VERY TERMS PROVIDES: 

"(ALL STATUTES OF THE UNITED STATES WHICH AFFECT INDIANS SHALL NO
LONGER BE APPLICABLE TO THE MEMBERS OF THE TRIBE . . . ."  25 U.S.C.
899.  PUBLIC LAW 280 IS SUCH A STATUTE.  IT HAS NO APPLICATION TO THE
MENOMINEES NOW THAT THEIR RESERVATION IS GONE.  /8/ 

THE 1854 TREATY GRANTED THE MENOMINEES SPECIAL HUNTING AND FISHING
RIGHTS.  THE 1954 TERMINATION ACT, BY SUBJECTING THE MENOMINEES WITHOUT
EXCEPTION TO STATE LAW, TOOK AWAY THOSE RIGHTS.  THE MENOMINEES ARE
ENTITLED TO COMPENSATION. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF CLAIMS. 

/1/  THE TERMINATION ACT WAS ADOPTED IN RESPONSE TO AN EARLIER
CONGRESSIONAL RESOLUTION WHICH STATED IN PART: "(IT IS THE POLICY OF
CONGRESS, AS RAPIDLY AS POSSIBLE, TO MAKE THE INDIANS WITHIN THE
TERRITORIAL LIMITS OF THE UNITED STATES SUBJECT TO THE SAME LAWS AND
ENTITLED TO THE SAME PRIVILEGES AND RESPONSIBILITIES AS ARE APPLICABLE
TO OTHER CITIZENS OF THE UNITED . . . ."  67 STAT. B132. 

/2/  I CANNOT ATTACH ANY SIGNIFICANT WEIGHT TO AN OFFHAND REMARK IN
A SPEECH MADE BY ONE SENATOR AFTER THE ENACTMENT OF THE BILL.  ANTE, AT
413. 

IT IS, OF COURSE, IRRELEVANT THAT THE LEGISLATIVE HISTORY REVEALS NO
INTENTION BY THE CONGRESS TO INCUR A FINANCIAL OBLIGATION TO THE
MENOMINEES.  IF WHAT THE CONGRESS DID TOOK AWAY THE MENOMINEES'
PROPERTY RIGHTS, THEN REGARDLESS OF CONGRESSIONAL INTENT THEY ARE
ENTITLED TO COMPENSATION FROM THE UNITED STATES FOR THE TAKING. 

/3/  H.R. 7135 AND S. 2813, 83D CONG., 2D SESS. 

/4/  H.R. 2828, 83D CONG., 2D SESS. 

/5/  "I THINK IT IS CLEAR THAT (THE BILL) DOES AFFECT THOSE TREATY
RIGHTS AND THAT THOSE TREATIES ARE ABROGATED.  CERTAINLY IT ABOLISHES
THE TRIBAL RIGHT TO EXCLUSIVE HUNTING AND FISHING PRIVILEGES, BECAUSE
AUTOMATICALLY UPON THE FINAL TERMINATION DATE, THE MENOMINEE
RESERVATION SO FAR AS HUNTING AND FISHING IS CONCERNED, WOULD BECOME
SUBJECT TO THE LAWS OF WISCONSIN."  JOINT HEARINGS ON S. 2813, H.R.
2828, AND H.R. 7135, SUBCOMMITTEES OF COMMITTEES ON INTERIOR AND
INSULAR AFFAIRS, 83D CONG., 2D SESS., PT. 6, PP. 692, 708. 

/6/  "INDIAN COUNTRY" IS DEFINED IN 18 U.S.C.1151 AS LAND WITHIN
INDIAN RESERVATIONS, DEPENDENT INDIAN COMMUNITIES, AND INDIAN
ALLOTMENTS. 

PUBLIC LAW 280 AS ORIGINALLY ENACTED IN 1953, 67 STAT. 588, DID NOT
INCLUDE THE MENOMINEE RESERVATION.  IN 1954 THE STATUTE WAS AMENDED TO
INCLUDE THAT RESERVATION.  68 STAT. 795.  FROM THAT TIME UNTIL THE
RESERVATION WAS TERMINATED IN 1961, PUBLIC LAW 280 GOVERNED THE EXTENT
TO WHICH THE STATE COULD ASSERT JURISDICTION OVER THE MENOMINEES ON
THEIR RESERVATION. 

/7/  THE ONLY REAL RELEVANCE OF PUBLIC LAW 280 LIES IN ITS
DEMONSTRATION THAT WHEN CONGRESS WANTS TO EXCEPT TREATY RIGHTS FROM
JURISDICTIONAL GRANTS, IT KNOWS HOW TO DO SO.  CF. KLAMATH TERMINATION
ACT, 68 STAT. 718, 25 U.S.C. 564 ET SEQ., ENACTED BY THE SAME CONGRESS
THAT ENACTED THE MENOMINEE TERMINATION ACT WHICH EXPLICITLY PRESERVES
FISHING RIGHTS.  25 U.S.C. 564MB). 

/8/  IF, AS THE COURT SEEMS TO SAY, THE EXCEPTIONS ENUMERATED IN
PUBLIC LAW 280 CONTINUE IN EFFECT AFTER TERMINATION OF INDIAN COUNTRY,
IT FOLLOWS THAT WISCONSIN CANNOT NOW TAX, OR OTHERWISE REGULATE THE USE
OF, PROPERTY OWNED BY THE MENOMINEES.  18 U.S.C. 1162(B); 28 U.S.C.
1360(B).  CF. SNOHOMISH COUNTY /. SEATTLE DISPOSAL CO., 70 WASH.2D 668,
425 P.2D 22, HOLDING THAT PUBLIC LAW 280 PROHIBITS ZONING REGULATION OF
A GARBAGE DUMP ON RESERVATION LAND LEASED TO NON-INDIANS.  CERTIORARI
WAS DENIED, 389 U.S. 1016, MR. JUSTICE DOUGLAS JOINED BY MR. JUSTICE
WHITE, DISSENTING. 

CHARLES A. HOBBS REARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS ON THE REARGUMENT AND ON THE ORIGINAL ARGUMENT WERE JOHN W.
CRAGUN ANGELO A. IADAROLA, AND JAMES R. MODRALL III. 

LOUIS F. CLAIBORNE REARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEF ON THE REARGUMENT WERE SOLICITOR GENERAL GRISWOLD AND
ASSISTANT ATTORNEY GENERAL MARTZ, AND ON THE ORIGINAL ARGUMENT MR.
GRISWOLD ACTING ASSISTANT ATTORNEY GENERAL HARRISON, AND ROGER P.
MARQUIS. 

BRONSON C. LAFOLLETTE, ATTORNEY GENERAL OF WISCONSIN, ARGUED THE
CAUSE ON THE REARGUMENT FOR THE STATE OF WISCONSIN, AS AMICUS CURIAE. 
WITH HIM ON THE BRIEFS WAS WILLIAM F. EICH, ASSISTANT ATTORNEY
GENERAL. 

BRIEFS OF AMICI CURIAE WERE FILED BY ALBERT J. AHERN FOR THE
NATIONAL CONGRESS OF AMERICAN INDIANS, AND BY ARTHUR LAZARUS, JR., FOR
THE ASSOCIATION OF AMERICAN INDIAN AFFAIRS, INC.
..END :



















NLRB V. MARINE WORKERS, 391 U.S. 418 


       NATIONAL LABOR RELATIONS BOARD V. INDUSTRIAL UNION OF MARINE

           & SHIPBUILDING WORKERS OF AMERICA, AFL-CIO, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT. 

NO. 796.  ARGUED APRIL 30, 1968.-- DECIDED MAY 27, 1968. 


HOLDER, A MEMBER OF RESPONDENT UNIONS, SUBMITTED CHARGES TO LOCAL 22
THAT ITS PRESIDENT HAD VIOLATED THE INTERNATIONAL'S CONSTITUTION.  THE
LOCAL DECIDED IN ITS PRESIDENT'S FAVOR.  HOLDER, WITHOUT PURSUING THE
INTRA-UNION APPEALS PROCEDURE CONTAINED IN SEC. 5 OF THE
INTERNATIONAL'S CONSTITUTION, FILED WITH THE NLRB AN UNFAIR LABOR
PRACTICE COMPLAINT CLAIMING VIOLATION OF SEC. 8(B)(1)(A) OF THE
NATIONAL LABOR RELATIONS ACT BASED ON THE SAME ALLEGED VIOLATIONS OF
THE PRESIDENT AND CHARGING THAT LOCAL 22 HAD CAUSED HIS EMPLOYER TO
DISCRIMINATE AGAINST HIM BECAUSE HE HAD ENGAGED IN "PROTECTED ACTIVITY"
WITH RESPECT TO HIS EMPLOYMENT.  WHILE HOLDER'S COMPLAINT WAS PENDING
BEFORE THE NLRB, LOCAL 22 BROUGHT INTRA-UNION CHARGES THAT HOLDER HAD
VIOLATED SEC. 5 OF THE INTERNATIONAL'S CONSTITUTION BY FILING THE
CHARGE WITH THE NLRB BEFORE EXHAUSTING HIS INTERNAL REMEDIES, HELD A
HEARING, FOUND HOLDER GUILTY, AND EXPELLED HIM FROM RESPONDENT UNIONS. 
HOLDER THEN FILED A SECOND CHARGE WITH THE NLRB (THE BASIS OF THIS
CASE), WHICH FOUND THAT RESPONDENT UNIONS HAD VIOLATED SEC. 8(B)(1)(A)
BY EXPELLING HOLDER FOR FILING THE CHARGE WITH THE NLRB WITHOUT HAVING
FIRST EXHAUSTED INTRA-UNION PROCEDURES.  THE NLRB ISSUED A REMEDIAL
ORDER.  THE COURT OF APPEALS REFUSED TO ENFORCE THAT ORDER, RELYING ON
SEC. 101(A)(4) OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF
1959, WHICH, WHILE PROHIBITING A UNION FROM LIMITING A MEMBER'S RIGHT
TO RESORT TO A TRIBUNAL, PROVIDES THAT A MEMBER "MAY BE REQUIRED TO
EXHAUST REASONABLE HEARING PROCEDURES" BEFORE DOING SO, "NOT TO EXCEED
A FOUR-MONTH LAPSE OF TIME."  HELD: 

1.  HOLDER'S CHARGE THAT HE WAS DISCRIMINATED AGAINST BECAUSE HE HAD
ENGAGED "IN CERTAIN PROTECTED ACTIVITY" CONSTITUTED A SUFFICIENT
ALLEGATION OF IMPAIRMENT OF SEC. 7 RIGHTS.  PP. 421-422. 

2.  WHERE A UNION MEMBER'S COMPLAINT OF GRIEVANCE DOES NOT CONCERN
AN INTERNAL UNION MATTER, BUT AS IN THIS CASE TOUCHES A PART OF THE
PUBLIC DOMAIN COVERED BY THE NATIONAL LABOR RELATIONS ACT, FAILURE TO
RESORT TO ANY INTRA-UNION GRIEVANCE PROCEDURE BEFORE FILING AN UNFAIR
LABOR PRACTICE COMPLAINT WITH THE NLRB IS NOT GROUND FOR EXPULSION FROM
E UNION.  PP. 422-425, 428. 

3.  THOUGH SEC. 101(A)(4) OF THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT AUTHORIZES UNION HEARING PROCEDURES FOR PROCESSING
MEMBERS' GRIEVANCES, PROVIDED THOSE PROCEDURES DO NOT CONSUME MORE THAN
FOUR MONTHS, A COURT OR AGENCY MAY CONSIDER WHETHER A PARTICULAR
PROCEDURE IS "REASONABLE" AND ENTERTAIN THE COMPLAINT EVEN THOUGH THOSE
PROCEDURES HAVE NOT BEEN "EXHAUSTED."  PP. 425-428. 

379 F.2D 702, REVERSED. 

MR.JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ONE HOLDER, A MEMBER OF RESPONDENT UNIONS, FILED WITH THE NATIONAL
LABOR RELATIONS BOARD AN UNFAIR LABOR PRACTICE CHARGE, ALLEGING THAT
LOCAL 22 HAD VIOLATED SEC. 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS
ACT, /1/  61 STAT. 141, 29 U.S.C. 158(B)(1)(A), BY CAUSING HIS EMPLOYER
TO DISCRIMINATE AGAINST HIM BECAUSE HE HAD ENGAGED IN PROTECTED
ACTIVITY WITH RESPECT TO HIS EMPLOYMENT.  /2/  THE FILING OF THIS
CHARGE FOLLOWED AN ACCUSATION BY HOLDER TO LOCAL 22 THAT ITS PRESIDENT
HAD VIOLATED THE CONSTITUTION OF THE INTERNATIONAL.  THE LOCAL DECIDED
IN FAVOR OF ITS PRESIDENT; BUT HOLDER DID NOT PURSUE THE INTRA-UNION
APPEALS PROCEDURE THAT WAS AVAILABLE TO HIM AND FILED THE UNFAIR LABOR
PRACTICE CHARGE INSTEAD, BASED ON THE SAME ALLEGED VIOLATIONS BY THE
PRESIDENT. 

UNION, WHICH WAS BINDING ON LOCAL 22, CONTAINED THE FOLLOWING PROVISION
RELATIVE TO GRIEVANCES OF UNION MEMBERS: 

     "EVERY MEMBER . . . CONSIDERING HIMSELF . . . AGGRIEVED BY ANY

  ACTION OF THIS UNION, THE (GENERAL EXECUTIVE BOARD), A NATIONAL

  OFFICER, A LOCAL OR OTHER SUBDIVISION OF THIS UNION SHALL EXHAUST

  ALL REMEDIES AND APPEALS WITHIN THE UNION, PROVIDED BY THIS

  CONSTITUTION, BEFORE HE SHALL RESORT TO ANY COURT OR OTHER

  TRIBUNAL OUTSDIE OF THE UNION." 

WHILE HOLDER'S CHARGE WAS PENDING BEFORE THE BOARD, LOCAL 22 LODGED
A COMPLAINT IN INTERNAL UNION PROCEEDINGS AGAINST HOLDER ALLEGING HE
HAD VIOLATED SEC. 5 OF ARTICLE V OF THE INTERNATIONAL'S CONSTITUTION BY
FILING HIS CHARGE WITH THE BOARD BEFORE HE HAD EXHAUSTED HIS INTERNAL
REMEDIES.  AFTER A HEARING BEFORE LOCAL 22, HOLDER WAS FOUND GUILTY AND
EXPELLED FROM BOTH RESPONDENT UNIONS.  HE THEN APPEALED TO THE GENERAL
EXECUTIVE BOARD OF THE INTERNATIONAL WHICH AFFIRMED THE LOCAL'S ACTTON
ON OCTOBER 7, 1964. 

ON OCTOBER 28, 1964, HOLDER FILED A SECOND CHARGE WITH THE BOARD,
CLAIMING HIS EXPULSION FOR FILING THE FIRST CHARGE WAS UNLAWFUL.  THAT
CHARGE IS THE BASIS OF THE INSTANT CASE. 

A COMPLAINT ISSUED; AND THE BOARD FOUND THAT THE RESPONDENT UNIONS
HAD VIOLATED SEC. 8(B)(1)(A) OF THE ACT BY EXPELLING HOLDER FOR FILING
A CHARGE WITH THE BOARD WITHOUT FIRST HAVING EXHAUSTED THE INTRA-UNION
PROCEDURES.  159 N.L.R.B. 1065.  IT ISSUED A REMEDIAL ORDER, WHICH THE
COURT OF APPEALS REFUSED TO ENFORCE.  379 F.2D 702.  THE CASE IS HERE
ON WRIT OF CERTIORARI.  389 U.S. 1034. 

THE IMPORTANT QUESTION IS WHETHER CONSISTENT WITH THE APPLICABLE
FEDERAL STATUTES A UNION MAY PENALIZE ONE OF ITS MEMBERS FOR SEEKING
THE AID OF THE BOARD WITHOUT EXHAUSTING ALL INTERNAL UNION REMEDIES. 
THERE IS A THRESHOLD QUESTION, HOWEVER, CONCERNING THE ADEQUACY OF
HOLDER'S FIRST OR ORIGINAL CHARGE TO THE BOARD AGAINST RESPONDENTS. 
HOLDER CHARGED DISCRIMINATION PRACTICED AGAINS HIM BECAUSE, TO USE THE
WORDS OF THE REGIONAL DIRECTOR AS HE PARAPHRASED THE CHARGE IN THE
COMPLAINT, HOLDER HAD ENGAGED "IN CERTAIN PROTECTED ACTIVITY" OF AN
UNSPECIFIED NATURE "WITH RESPECT TO HIS EMPLOYMENT."  IT IS POINTED OUT
THAT SEC. 8(B)(1)(A) PROTECTS ONLY "THE EXERCISE OF RIGHTS GUARANTEED
BY SECTION 7"; /3/ AND THAT SEC. 7 "SAYS NOTHING ABOUT ANY RIGHT TO
FILE CHARGES WITH THE BOARD."  379 F.2D, AT 706.  THAT, HOWEVER, IS NOT
THE ISSUE.  THE CHARGE BY HOLDER THAT HE WAS DISCRIMINATED AGAINST
BECAUSE HE HAD ENGAGED "IN CERTAIN PROTECTED ACTIVITY" WAS A SUFFICIENT
WAY TO ALLEGE AN IMPAIRMENT OF SEC. 7 RIGHTS.  "THE CHARGE IS NOT
PROOF.  IT MERELY SETS IN MOTION THE MACHINERY OF AN INQUIRY."  NLRB V.
INDIANA & MICHIGAN ELECTRIC CO., 318 U.S. 9, 18.  MOREOVER, NO ISSUE
WAS RAISED BEFORE THE BOARD CONCERNING THE NATURE OF THE "PROTECTED
ACTIVITY."  THE ANSWER OF RESPONDENTS INSOFAR AS THE ORIGINAL CHARGE IS
CONCERNED SAID ONLY THAT THE CHARGE MADE BY HOLDER TO THE BOARD WAS
BASED UPON PRECISELY THE SAME FACTS AS THOSE ON WHICH HIS INTERNAL
UNION CHARGES AGAINST THE PRESIDENT OF THE LOCAL HAD BEEN BASED.  WE
MUST, THEREFORE, ASSUME THAT THE INITIAL CHARGE WAS ONE WITHIN THE
AMBIT OF SEC. 7 AND SO PLAINLY WITHIN IT THAT NO PARTY UNDERTOOK TO
QUESTION IT. 

THE MAIN ISSUE IN THE CASE IS WHETHER HOLDER COULD BE EXPELLED FOR
FILING THE CHARGE WITH THE BOARD WITHOUT IFRST HAVING EXHAUSTED "ALL
REMEDIES AND APPEALS WITHIN THE UNION"  /4/  AS PROVIDED IN SEC. 5 OF
ARTICLE V OF THE CONSTITUTION, ALREADY QUOTED. 

RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES WITH RESPECT
TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN." 

THE COURT OF APPEALS CONCLUDED THAT WHILE THIS PROVISO WOULD NOT
PERMIT A UNION TO EXPEL A MEMBER BECAUSE HE FILED AN UNFAIR LABOR
PRACTICE CHARGE AGAINST THE UNION, IT PERMITS A RULE WHICH GIVES THE
UNION "A FAIR OPPORTUNITY TO CORRECT ITS OWN WRONG BEFORE THE INJURED
MEMBER SHOULD HAVE RECOURSE TO THE BOARD."  379 F.2D, AT 707. 

WE HELD IN NLRB V. ALLIS-CHALMERS MFG. CO., 388 U.S. 175, THAT SEC.
8(B)(1)(A) DOES NOT PREVENT A UNION FROM IMPOSING FINES ON MEMBERS WHO
CROSS A PICKET LINE CREATED TO IMPLEMENT AN AUTHORIZED STRIKE.  THE
STRIKE, WE SAID, "IS THE ULTIMATE WEAPON IN LABOR'S ARSENAL FOR
ACHIEVING AGREEMENT UPON ITS TERMS" AND THE POWER TO FINE OR EXPEL A
STRIKEBREAKER "'IS ESSENTIAL IF THE UNION IS TO BE AN EFFECTIVE
BARGAINING AGENT.'"  ID., AT 181. 

THUS SEC. 8(B)(1)(A) ASSURES A UNION FREEDOM OF SELF-REGULATION
WHERE ITS LEGITIMATE INTERNAL AFFAIRS ARE CONCERNED.  BUT WHERE A UNION
RULE PENALIZES A MEMBER FOR FILING AN UNFAIR LABOR PRACTICE CHARGE WITH
THE BOARD, OTHER CONSIDERATIONS OF PUBLIC POLICY COME INTO PLAY. 

ISSUANCE OF A COMPLAINT BASED ON CONDUCT OCCURRING MORE THAN SIX MONTHS
PRIOR TO FILING OF THE CHARGE-- A PROVISION PROMOTING PROMPTNESS.  A
PROCEEDING BY THE BOARD IS NOT TO ADJUDICATE PRIVATE RIGHTS BUT TO
EFFECTUATE A PUBLIC POLICY.  THE BOARD CANNOT INITIATE ITS OWN
PROCEEDINGS; IMPLEMENTATION OF THE ACT IS DEPENDENT "UPON THE
INITIATIVE OF INDIVIDUAL PERSONS."  NASH V. FLORIDA INDUSTRIAL COMM'N,
389 U.S. 235, 238.  THE POLICY OF KEEPING PEOPLE "COMPLETELY FREE FFROM
COERCION," IBID., AGAINST MAKING COMPLAINTS TO THE BOARD IS THEREFORE
IMPORTANT IN THE FUNCTIONING OF THE ACT AS AN ORGANIC WHOLE.  A
RESTRICTION SUCH AS WE FIND IN SEC. 5 OF ARTICLE V OF THE
INTERNATIONAL'S CONSTITUTION IS CONTRARY TO THAT POLICY, AS IT IS
APPLIED HERE.  A HEALTHY INTERPLAY OF THE FORCES GOVERNED AND PROTECTED
BY THE ACT MEANS THAT THERE SHOULD BE AS GREAT A FREEDOM TO ASK THE
BOARD FOR RELIEF AS THERE IS TO PETITION ANY OTHER DEPARTMENT OF
GOVERNMENT FOR A REDRESS OF GRIEVANCES.  /6/  ANY COERCION USED TO
DISCOURAGE, RETARD, OR DEFEAT THAT ACCESS IS BEYOND THE LEGITIMATE
INTERESTS OF A LABOR ORGANIZATION.  THAT WAS THE PHILOSOPHY OF THE
BOARD IN THE SKURA CASE, LOCAL 138, INTERNATIONAL UNION OF POPERATING
ENGINEERS, 148 N.L.R.B. 679; AND WE AGREE THAT THE OVERRIDING PUBLIC
INTEREST MAKES UNIMPEDED ACCESS TO THE BOARD THE ONLY HEALTHY
ALTERNATIVE, EXCEPT AND UNLESS PLAINLY INTERNAL AFFAIRS OF THE UNION
ARE INVOLVED. 

IN THE PRESENT CASE A WHOLE COMPLEX OF PUBLIC POLICY ISSUES WAS
RAISED BY HOLDER'S ORIGINAL CHARGE.  IT IMPLICATED NOT ONLY THE UNION
BUT THE EMPLOYER.  THE EMPLOYER MIGHT ALSO HAVE BEEN MADE A PARTY AND
COMPREHENSIVE AND COORDINATED REMEDIES PROVIDED.  THOSE ISSUES CANNOT
BE FULLY EXPLORED IN AN INTERNAL UNION PROCEEDING.  THERE CANNOT BE ANY
JUSTIFICATION TO MAKE THE PUBLIC PROCESSES WAIT UNTIL THE UNION MEMBER
EXHAUSTS INTERNAL PROCEDURES PLAINLY INADEQUATE TO DEAL WITH ALL PHASES
OF THE COMPLEX PROBLEM CONCERNING EMPLOYER, UNION, AND EMPLOYEE
MEMBER.  IF THE MEMBER BECOMES EXHAUSTED, INSTEAD OF THE REMEDIES, THE
ISSUES OF PUBLIC POLICY ARE NEVER REACHED AND AN AIRING OF THE
GRIEVANCE NEVER HAD.  THE COURT OF APPEALS RECOGNIZED THAT THIS MIGHT
BE THE CONSEQUENCE AND SAID THAT RESORT TO AN INTRA-UNION REMEDY WOULD
NOT BE REQUIRED IF IT "WOULD IMPOSE UNREASONABLE DELAY OR HARDSHIP UPON
THE COMPLAINANT."  379 F.2D, AT 707. 

THE DIFFICULTY IS THAT A MEMBER WOULD HAVE TO GUESS WHAT A COURT
ULTIMATELY WOULD HOLD.  IF HE GUESSED WRONG AND FILED THE CHARGE WITH
THE BOARD WITHOUT EXHAUSTING INTERNAL UNION PROCEDURES, HE WOULD HAVE
NO RECOURSE AGAINST THE DISCIPLINE OF THE UNION.  THAT RISK ALONE IS
LIKELY TO CHILL THE EXERCISE OF A MEMBER'S RIGHT TO A BOARD REMEDY AND
INDUCE HIM TO FORGO HIS GRIEVANCE OR PURSUE A FUTILE UNION PROCEDURE. 
THAT IS THE JUDGMENT OF THE BOARD; AND WE THINK IT COMPORTS WITH THE
POLICY OF THE ACT.  THAT IS TO SAY, THE PROVISO IN SEC. 8(B)(1)(A) THAT
UNIONS MAY DESIGN THEIR OWN RULES RESPECTING "THE ACQUISITION OR
RETENTION OF MEMBERSHIP" IS NOT SO BROAD AS TO GIVE THE UNION POWER TO
PENALIZE A MEMBER WHO INVOKES THE PROTECTION OF THE ACT FOR A MATTER
THAT IS IN THE PUBLIC DOMAIN AND BEYOND THE INTERNAL AFFAIRS OF THE
UNION. 

THE COURT OF APPEALS FOUND SUPPORT FOR ITS CONTRARY POSITION IN SEC.
101(A)(4) OF THE LABOR-MAANGEMENT REPORTING AND DISCLOSURE ACT OF
1959.  /7/  73 STAT. 522, 29 U.S.C. 411(A)(4).  WHILE THAT PROVISION
PROHIBITS A UNION FROM LIMITING THE RIGHT OF A MEMBER TO INSTITUTE AN
ACTION IN ANY COURT OR IN A PROCEEDING BEFORE ANY ADMINISTRATIVE
AGENCY, IT PROVIDES THAT A MEMBER "MAY BE REQUIRED TO EXHAUST
REASONABLE HEARING PROCEDURES" "NOT TO EXCEED A FOUR-MONTH LAPSE OF
TIME." 

WE CONCLUDE THAT "MAY BE REQUIRED" IS NOT A GRANT OF AUTHORITY TO
UNIONS MORE FIRMLY TO POLICE THEIR MEMBERS BUT A STATEMENT OF POLICY
THAT THE PUBLIC TRIBUNALS WHOSE AID IS INVOKED MAY IN THEIR DISCRETION
STAY THEIR HANDS FOR FOUR MONTHS, WHILE THE AGGRIEVED PERSON SEEKS
RELIEF WITHIN THE UNION,WHILE THE AGGRIEVED PERSON SEEKS RELIEF WITHIN
THE UNION.  WE READ IT, IN OTHER WORDS, AS INSTALLING IN THIS LABOR
FIELD A REGIME COMPARABLE TO THAT WHICH PREVAILS IN OTHER AREAS OF LAW
BEFORE THE FEDERSL COURTS, WHICH OFTEN STAY THEIR HANDS WHILE A
LITIGANT SEEKS ADMINISTRATIVE RELIEF BEFORE THE APPROPRIATE AGENCY. 
/8/ 

THE LEGISLATIVE HISTORY IS NOT VERY ILLUMINATING.  SOME MEMBERS OF
THE HOUSE WHO SPOKE INDICATED THAT THERE WAS ROOM FOR JUDICIAL
DISCRETION WHETHER TO REMIT THE MEMBER TO AVAILABLE INTERNAL UNION
REMEDIES.  /9/  IN THE SENATE THE FEAR WAS EXPRESSED THAT THE NEW
CHARGES WITH THE BROAD PRIOR TO EXHAUSTION OF THEIR INTERNAL REMEDIES. 
/10/  IN THE SENATE THE CONTINUANCE OF UNION GRIEVANCE PROCEDURES UNDER
THE NEW SECTION WAS EMPHASIZED.  /11/  IT WAS INDEED EXPRESSLY STATED
BY SENATOR JOHN F. KENNEDY REPORTING FROM THE CONFERENCE COMMITTEE:
/12/ 

     "THE 4-MONTH LIMITATION IN THE HOUSE BILL ALSO RELATES TO

  RESTRICTIONS IMPOSED BY UNIONS RATHER THAN THE RULES OF JUDICIAL

 ADMINISTRATION OR THE ACTION OF GOVERNMENT AGENCIES." 

YET IT PLAINLY APPEARS FROM THOSE SPEAKING FOR THE CONFERENCE REPORT
THAT A MEMBER WAS TO BE PERMITTED TO COMPLAIN TO THE BOARD EVEN BEFORE
THE END OF THE FOUR-MONTH PERIOD.  CONGRESSMAN GRIFFIN REPORTED:  /13/ 

"(THE PROVISO WAS NOT INTENDED TO LIMIT IN ANY WAY THE RIGHT OF A
UNION MEMBER UNDER THE LABOR-MANAGEMENT RELATIONS ACT OF 1947, AS
AMENDED, TO FILE UNFAIR LABOR PRACTICE CHARGES AGAINST A UNION, OR THE
RIGHT OF THE NLRB TO ENTERTAIN SUCH CHARGES, EVEN THOUGH A 4-MONTH
PERIOD MAY NOT HAVE ELAPSED." 

AND ON THE SENATE SIDE, SENATOR KENNEDY SAID THAT THE PROVISO WAS
NOT INTENDED "TO INVALIDATE THE CONSIDERABLE BODY OF STATE AND FEDERAL
COURT DECISIONS OF MANY YEARS STANDING WHICH REQUIRE,OR DO NOT REQUIRE,
THE EXHAUSTION OF INTERNAL REMEDIES PRIOR TO COURT INTERVENTION
DEPENDING UPON THE REASONABLENESS OF SUCH REQUIREMENTS IN TERMS OF THE
FACTS AND CIRCUMSTANCES OF A PARTICULAR CASE."  NOR, HE SAID, WAS IT
INTENDED TO PROHIBIT "THE NATIONAL LABOR RELATIONS BOARD . . . FROM
ENTERTAINING CHARGES BY A MEMBER AGAINST A LABOR ORGANIZATION EVEN
THOUGH 4 MONTHS HAS NOT ELAPSED."  /14/ 

WE CONCLUDE THAT UNIONS WERE AUTHORIZED TO HAVE HEARING PROCEDURES
FOR PROCESSING GRIEVANCES OF MEMBERS, PROVIDED THOSE PROCEDURES DID NOT
CONSUME MORE THAN FOUR MONTHS OF TIME; BUT THAT A COURT OR AGENCY MIGHT
CONSIDER WHETHER A PARTICULAR PROCEDURE WAS "REASONABLE" AND ENTERTAIN
THE COMPLAINT EVEN THOUGH THOSE PROCEDURES HAD NOT BEEN "EXHAUSTED." 
WE ALSO CONCLUDE, FOR REASONS STATED EARLIER IN THIS OPINION, THAT
WHERE THE COMPLAINT OR GRIEVANCE DOES NOT CONCERN AN INTERNAL UNION
MATTER, BUT TOUCHES A PART OF THE PUBLIC DOMAIN COVERED BY THE ACT,
FAILURE TO RESORT TO ANY INTRA-UNION GRIEVANCE PROCEDURE IS NOT GROUND
FOR EXPULSION FROM A UNION.  WE HOLD THAT THE BOARD PROPERLY
ENTERTAINED THE COMPLAINT OF HOLDER AND THAT ITS ORDER SHOULD BE
ENFORCED. 

   REVERSED. 

/1/  SECTION 8(B) PROVIDES IN PART:  "IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS-- 

"(1) TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7:  PROVIDED, THAT THIS PARAGRAPH SHALL
NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN . .
. ."     SECTION 7, 61 STAT. 140, 29 U.S.C. 157, CONTAINS THE FOLLOWING
GUARANTEE OF RIGHTS:  "EMPLOYEES SHALL HAVE THE RIGHT TO SELF
ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN
COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO
ENGAGE IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION, AND SHALL ALSO HAVE THE
RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES EXCEPT TO THE
EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN AGREEMENT REQUIRING
MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDTION OF EMPLOYMENT AS
AUTHORIZED IN SECTION 8(A)(3)." 

/2/  THIS CHARGE, FILED WITH THE BOARD FEBRUARY 28, 1964, WAS
DIRECTED SOLELY AGAINST RESPONDENT INTERNATIONAL UNION AND ALLEGED
THAT: 

"ON OR ABOUT OCTOBER 8, 196(3), THE ABOVE NAMED LABOR ORGANIZATION
CAUSED THE UNITED STATES LINES (EMPLOYER) TO DISCRIMINATE AGAINST EDWIN
D. HOLDER BECAUSE HE ENGAGED IN CONCERTED ACTIVITIES WITH RESPECT TO
THE CONDITIONS OF HIS EMPLOYMENT. 

"BY THESE AND OTHER ACTS, THE ABOVE NAMED LABOR ORGANIZATION HAS
INTERFERED WITH, RESTRAINED AND COERCED, AND CONTINUES TO INTERFERE
WITH, RESTRAIN AND COERCE THE COMPANY'S EMPLOYEES IN THE EXERCISE OF
RIGHTS GUARANTEED IN SECTION 7 OF THE ACT." 

BY LETTER OF MAY 20, 1964, THE REGIONAL DIRECTOR INFORMED HOLDER
THAT THIS CHARGE WAS DISMISSED. 

/3/  N. 1, SUPRA. 

/4/  THESE REMEDIES ARE PROVIDED FOR IN SEC. 3 OF ARTICLE V OF THE
CONSTITUTION: 

"NO UNION MEMBER IN GOOD STANDING IN ANY LOCAL MAY BE SUSPENDED OR
EXPELLED OR OTHERWISE DISCIPLINED OR PENALIZED WITHOUT A FAIR AND OPEN
TRIAL, OF WHICH REASONABLE NOTICE SHALL BE GIVEN THE ACCUSED MEMBER,
BEFORE THE TRIAL BOARD OF THE LOCAL UNION . . . . THE ACCUSED MEMBER OR
MEMBERS OR THE ACCUSERS MAY APPEAL THE DECISION OF THE LOCAL UNION'S
EXECUTIVE BOARD TO THE REGULAR MEETING OF THE GENERAL MEMBERSHIP OF THE
LOCAL UNION NEXT FOLLOWING THE MEETING OF THE EXECUTIVE BOARD AT WHICH
THE DECISION WAS RENDERED, AND WITHIN THIRTY (30) DAYS AFTER THE
MEMBERSHIP'S DECISION MAY APPEAL TO THE GENERAL EXECUTIVE BOARD.  THE
GENERAL EXECUTIVE BOARD SHALL, AFTER REASONABLE NOTICE TO THE APPELLANT
OF THE TIME AND PLACE OF HEARING, HOLD A FAIR AND OPEN HEARING ON SUCH
APPEAL AND, NOT LATER THAN 130 DAYS AFTER THE FIRST REGULAR MEETING OF
THE GENERAL EXECUTIVE BOARD FOLLOWING RECEIPT OF THE APPEAL AT THE
NATIONAL OFFICE, AND IN ANY EVENT NOT LATER THAN THE FIRST DAY OF THE
NATIONAL CONVENTION, SHALL RENDER ITS DECISION AFFIRMING, OVERRULING,
OR MODIFYING EITHER THE FINDINGS OF GUILT OR INNOCENCE, OR THE PENALTY
IMPOSED.  BOTH THE ACCUSED AND THE ACCUSER SHALL HAVE THE RIGHT TO FILE
AN APPEAL TO THE NEXT NATIONAL CONVENTION BY SENDING SUCH APPEAL TO THE
NATIONAL OFFICE OF THIS UNION BY REGISTERED MAIL NOT LATER THAN THIRTY
DAYS AFTER THE DECISION BY THE GENERAL EXECUTIVE BOARD." 

ALTHOUGH HOLDER DID NOT TAKE ANY INTERNAL APPEAL FROM THE LOCAL'S
ORIGINAL ADVERSE DECISION ON HIS CHARGE TO IT AGAINST THE PRESIDENT, HE
DID APPEAL HIS EXPULSION TO THE GENERAL EXECUTIVE BOARD OF THE
INTERNATIONAL,WHICH AFFIRMED. 

/5/  N. 1, SUPRA. 

/6/  SEE COX, INTERNAL AFFAIRS OF LABOR UNIONS UNDER THE LABOR
REFORM ACT OF 1959, 58 MICH.L.REV.  819, 839 (1960); SUMMERS, LEGAL
LIMITATIONS IN UNION DISCIPLINE, 64 HARV.L.REV.  1049, 1067-1068
(1951); SUMMERS, THE USEFULNESS OF LAW IN ACHIEVING UNION DEMOCRACY, 48
AM.ECON.REV.  44, 47 (MAY 1958). 

/7/  SECTION 101(A)(4) PROVIDES:  "NO LABOR ORGANIZATION SHALL LIMIT
THE RIGHT OF ANY MEMBER THEREOF TO INSTITUTE AN ACTION IN ANY COURT, OR
IN A PROCEEDING BEFORE ANY ADMINISTRATIVE AGENCY . . . OR THE RIGHT OF
ANY MEMBER OF A LABOR ORGANIZATION TO APPEAR AS A WITNESS IN ANY
JUDICIAL, ADMINISTRATIVE, OR LEGISLATIVE PROCEEDING, OR TO PETITION ANY
LEGISLATURE OR TO COMMUNICATE WITH ANY LEGISLATOR:  PROVIDED, THAT ANY
SUCH MEMBER MAY BE REQUIRED TO EXHAUST REASONABLE HEARING PROCEDURES
(BUT NOT TO EXCEED A FOUR-MONTH LAPSE OF TIME) WITHIN SUCH
ORGANIZATION, BEFORE INSTITUTING LEGAL OR ADMINISTRATIVE PROCEEDINGS .
. . ." 

/8/  SEE MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41; COMPARE
RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496.  THE REQUIREMENT OF
EXHAUSTION IS A MATTER WITHIN THE SOUND DISCRETION OF THE COURTS.  SEE,
E.G., MCCULLOCH V. SOCIEDAD NACIONAL, 372 U.S. 10, 16-17.  AND SEE
LEEDOM V. KYNE, 358 U.S. 184, 188-189' CALIFORNIA COMM'N V. UNITED
STATES, 355 U.S. 534, 539-540.  EXHAUSTION IS NOT REQUIRED WHEN THE
ADMINISTRATIVE REMEDIES ARE INADEQUATE.  GREENE V. UNITED STATES, 376
U.S. 149; MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668.  SEE GENERALLY 3
K.DAVIS, ADMINISTRATIVE LAW TREATISE 20.07 (1958).  WHEN THE COMPLAINT,
AS IN THE INSTANT CASE, RAISES A MATTER THAT IS IN THE PUBLIC DOMAIN
AND BEYOND THE INTERNAL AFFAIRS OF THE UNION, THE UNION'S INTERNAL
PROCEDURES ARE, AS PREVIOUSLY EXPLAINED, PLAINLY INADEQUATE. 

/9/  105 CONG.REC.  15835 (MCCORMACK); ID., AT 15689-15690 (O'HARA);
ID., AT 15563 (FOLEY). 

/10/  105 CONG.REC.  10095 (GOLDWATER). 

/11/  105 CONG.REC.  17899 (JOHN F. KENNEDY). 

/12/  105 CONG. REC. 17899. 

/13/  105 CONG.REC.  18152. 

/14/  104 CONG.REC.  17899. 

MR. JUSTICE STEWART DISSENTS.  HE WOULD AFFIRM THE JUDGMENT,
AGREEING SUBSTANTIALLY WITH THE OPINION OF THE COURT OF APPEALS FOR THE
THIRD CIRCUIT.  379 F.2D 702. 

MR. JUSTICE HARLAN, CONCURRING. 

I AM PERSUADED BY THE LEGISLATIVE HISTORY, SUMMARIZED IN PART BY THE
COURT, THAT THE PROVISO TO SEC. 101(A)(4) OF THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT, 29 U.S.C. 411(A)(4), WAS INTENDED SIMPLY
TO PERMIT A COURT OR AGENCY TO REQUIRE A UNION MEMBER TO EXHAUST
INTERNAL UNION REMEDIES OF LESS THAN FOUR MONTHS' DURATION BEFORE
INVOKING OUTSIDE ASSISTANCE.  SEE GENERALLY DETROY V. AMERICAN GUILD OF
VARIETY ARTISTS, 286 F.2D 75, 78.  I CANNOT, HOWEVER, AGREE THAT A
UNION MAY PUNISH A MEMBER FOR HIS INVOCATION OF HIS REMEDIES BEFORE A
COURT OR AGENCY "WHERE THE COMPLAINT OR GRIEVANCE . . . CONCERNS) AN
INTERNAL UNION MATTER," AND THUS DOES NOT TOUCH ANY "PART OF THE PUBLIC
DOMAIN COVERED BY THE ACT . . . ."  ANTE, AT 428.  ASSUMING ARGUENDO
THAT THERE ARE MEMBER-UNION GRIEVANCES UNTOUCHED BY THE VARIOUS FEDERAL
LABOR STATUTES, THIS DICHOTOMY HAS, IT SEEMS TO ME, PRECISELY THE
DISADVANTAGE THAT THE COURT HAS FOUND IN THE THIRD CIRCUIT'S
CONSTRUCTION OF THE PROVISIO:  IT COMPELS A A MEMBER TO GAMBLE HIS
UNION MEMBERSHIP, AND OFTEN HIS EMPLOYMENT, ON THE ACCURACY OF HIS
UNDERSTANDING OF THE FEDERAL LABOR LAWS. 

FINALLY, IT IS APPROPRIATE TO EMPHASIZE THAT COURTS AND AGENCIES
WILL FRUSTRATE AN IMPORTANT PURPOSE OF THE 1959 LEGISLATION IF THEY DO
NOT, IN FACT, REGULARLY COMPEL UNION MEMBERS "TO EXHAUST REASONABLE
HEARING PROCEDURES" WITHIN THE UNION ORGANIZATION.  RESPONSIBLE UNION
SELF-GOVERNMENT DEMANDS, AMONG OTHER PREREQUISITES, A FAIR OPPORTUNITY
TO FUNCTION.  /1/  SEE DETROY V. AMERICAN GUILD OF VARIETY ARTISTS,
SUPRA, AT 79. 

WITH THESE MODIFICATIONS, I CONCUR IN THE OPINION AND JUDGMENT OF
THE COURT. 

/1/  IT SHOULD BE NOTED THAT MANY UNION CONSTITUTIONS HAVE ELABORATE
PROVISIONS FOR INTERNAL APPEALS, AND THAT THESE PROVISIONS WERE OFTEN
ADDED OR MODIFIED AS A CONSEQUENCE OF SEC.101(A)(4).  SEE KRONER, TITLE
I OF THE LMRDA:  SOME PROBLEMS OF LEGAL METHOD AND MYTHOLOGY, 43
N.Y.U.L.REV.  280, 302, N. 72. 

NORTON J. COME ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ARNOLD ORDMAN, AND DOMINICK L.
MANOLI. 

M. H. GOLDSTEIN ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENTS. 

KENNETH C. MCGUINESS AND STANLEY R. STRAUSS FILED A BRIEF FOR PRICE,
AS AMICUS CURIA, URGING REVERSAL. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS, AS AMICUS CURIAE, URGING AFFIRMANCE. 
..END :

















GREEN V. COUNTY SCHOOL BOARD, 391 U.S. 430 


       GREEN ET AL. V. COUNTY SCHOOL BOARD OF NEW KENT COUNTY ET

           AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT. 

        NO.695.  ARGUED APRIL 3, 1968.-- DECIDED MAY 27, 1968. 


RESPONDENT SCHOOL BOARD MAINTAINS TWO SCHOOLS, ONE ON THE EAST SIDE
AND ONE ON THE WEST SIDE OF NEW KENT COUNTY, VIRGINIA.  ABOUT ONE-HALF
OF THE COUNTY'S POPULATION ARE NEGROES, WHO RESIDE THROUGHOUT THE
COUNTY SINCE THERE IS NO RESIDENTIAL SEGREGATION.  ALTHOUGH THIS COURT
HELD IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (BROWN I), THAT
VIRGINIA'S CONSTITUTIONAL AND STATUTORY PROVISIONS REQUIRING RACIAL
SEGREGATION IN SCHOOLS WERE UNCONSTITUTIONAL, THE BOARD CONTINUED
SEGREGATED OPERATION OF THE SCHOOLS, PRESUMABLY PURSUANT TO VIRGINIA
STATUTES ENACTED TO RESIST THAT DECISION.  IN 1965, AFTER THIS SUIT FOR
INJUNCTIVE RELIEF AGAINST MAINTENANCE OF ALLEGEDLY SEGREGATED SCHOOLS
WAS FILED, THE BOARD, IN ORDER TO REMAIN ELIGIBLE FOR FEDERAL FINANCIAL
AID, ADOPTED A "FREEDOM-OF-CHOICE" PLAN FOR DESEGREGATING THE SCHOOLS. 
THE PLAN PERMITS STUDENTS, EXCEPT THOSE ENTERING THE FIRST AND EIGHTH
GRADES, TO CHOOSE ANNUALLY BETWEEN THE SCHOOLS; THOSE NOT CHOOSING ARE
ASSIGNED TO THE SCHOOL PREVIOUSLY ATTENDED; FIRST AND EIGHTH GRADERS
MUST AFFIRMATIVELY CHOOSE A SCHOOL.  THE DISTRICT COURT APPROVED THE
PLAN, AS AMENDED, AND THE COURT OF APPEALS APPROVED THE "FREEDOM-OF
CHOICE" PROVISIONS ALTHOUGH IT REMANDED FOR A MORE SPECIFIC AND
COMPREHENSIVE ORDER CONCERNING TEACHERS.  DURING THE PLAN'S THREE YEARS
OF OPERATION NO WHITE STUDENT HAS CHOSEN TO ATTEND THE ALL-NEGRO
SCHOOL, AND ALTHOUGH 115 NEGRO PUPILS ENROLLED IN THE FORMERLY ALL
WHITE SCHOOL, 85% OF THE NEGRO STUDENTS IN THE SYSTEM STILL ATTEND THE
ALL-NEGRO SCHOOL.  HELD: 

1.  IN 1955 THIS COURT, IN BROWN V. BOARD OF EDUCATION, 349 U.S. 294
(BROWN II), ORDERED SCHOOL BOARDS OPERATING DUAL SCHOOL SYSTEMS, PART
"WHITE" AND PART "NEGRO," TO "EFFECTUATE A TRANSITION TO A RACIALLY
NONDISCRIMINATORY SCHOOL SYSTEM," AND IT IS IN LIGHT OF THAT COMMAND
THAT THE EFFECTIVENESS OF THE "FREEDOM-OF-CHOICE" PLAN TO ACHIEVE THAT
END IS TO BE MEASURED.  PP. 435-438. 

2.  THE BURDEN IS ON A SCHOOL BOARD TO PROVIDE A PLAN THAT PROMISES
REALISTICALLY TO WORK NOW, AND A PLAN THAT AT THIS LATE DATE FAILS TO
PROVIDE MEANINGFUL ASSURANCE OF PROMPT AND EFFECTIVE DISESTABLISHMENT
OF A DUAL SYSTEM IS INTOLERABLE.  PP. 438-439. 

3.  A DISTRICT COURT'S OBLIGATION IS TO ASSESS THE EFFECTIVENESS OF
THE PLAN IN LIGHT OF THE FACTS AT HAND AND ANY ALTERNATIVES WHICH MAY
BE FEASIBLE AND MORE PROMISING, AND TO RETAIN JURISDICTION UNTIL IT IS
CLEAR THAT STATE-IMPOSED SEGREGATION HAS BEEN COMPLETELY REMOVED.  P.
439. 

4.  WHERE A "FREEDOM-OF-CHOICE" PLAN OFFERS REAL PROMISE OF
ACHIEVING A UNITARY NONRACIAL SYSTEM THERE MIGHT BE NO OBJECTION TO
ALLOWING IT TO PROVE ITSELF IN OPERATION, BUT WHERE THERE ARE
REASONABLY AVAILABLE OTHER WAYS, SUCH AS ZONING, PROMISING SPEEDIER AND
MORE EFFECTIVE CONVERSION TO A UNITARY SCHOOL SYSTEM, "FREEDOM OF
CHOICE" IS NOT ACCEPTABLE.  PP. 439-441. 

5.  THE NEW KENT "FREEDOM-OF-CHOICE" PLAN IS NOT ACCEPTABLE; IT HAS
NOT DISMANTLED THE DUAL SYSTEM, BUT HAS OPERATED SIMPLY TO BURDEN
STUDENTS AND THEIR PARENTS WITH A RESPONSIBILITY WHICH BROWN II PLACED
SQUARELY ON THE SCHOOL BOARD.  PP. 441-442. 

382 F.2D 338, VACATED IN PART AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER, UNDER ALL THE CIRCUMSTANCES
HERE, RESPONDENT SCHOOL BOARD'S ADOPTION OF A "FREEDOM-OF-CHOICE" PLAN
WHICH ALLOWS A PUPIL TO CHOOSE HIS OWN PUBLIC SCHOOL CONSTITUTES
ADEQUATE COMPLIANCE WITH THE BOARD'S RESPONSIBILITY "TO ACHIEVE A
SYSTEM OF DETERMINING ADMISSION TO THE PUBLIC SCHOOLS ON A NONRACIAL
BASIS . . . ."  BROWN V. BOARD OF EDUCATION, 349 U.S. 294, 300-301
(BROWN II). 

PETITIONERS BROUGHT THIS ACTION IN MARCH 1965 SEEKING INJUNCTIVE
RELIEF AGAINST RESPONDENT'S CONTINUED MAINTENANCE OF AN ALLEGED
RACIALLY SEGREGATED SCHOOL SYSTEM.  NEW KENT COUNTY IS A RURAL COUNTY
IN EASTER VIRGINIA.  ABOUT ONE-HALF OF ITS POPULATION OF SOME 4,500 ARE
NEGROES.  THERE IS NO RESIDENTIAL SEGREGATION IN THE COUNTY; PERSONS OF
BOTH RACES RESIDE THROUGHOUT.  THE SCHOOL SYSTEM HAS ONLY TWO SCHOOLS,
THE NEW KENT SCHOOL ON THE EAST SIDE OF THE COUNTY AND THE GEORGE W.
WATKINS SCHOOL ON THE WEST SIDE.  IN A MEMORANDUM FILED MAY 17, 1966,
THE DISTRICT COURT FOUND THAT THE "SCHOOL SYSTEM SERVES APPROXIMATELY
1,300 PUPILS, OF WHICH 740 ARE NEGRO AND 550 ARE WHITE.  THE SCHOOL
BOARD OPERATES ONE WHITE COMBINED ELEMENTARY AND HIGH SCHOOL (NEW
KENT), AND ONE NEGRO COMBINED ELEMENTARY AND HIGH SCHOOL (GEORGE W.
WATKINS).  THERE ARE NO ATTENDANCE ZONES.  EACH SCHOOL SERVES THE
ENTIRE COUNTY."  THE RECORD INDICATES THAT 21 SCHOOL BUSES-- 11 SERVING
THE WATKINS SCHOOL AND 10 SERVING THE NEW KENT SCHOOL-- TRAVEL
OVERLAPPING ROUTES THROUGHOUT THE COUNTY TO TRANSPORT PUPILS TO AND
FROM THE TWO SCHOOLS. 

THE SEGREGATED SYSTEM WAS INITIALLY ESTABLISHED AND MAINTAINED UNDER
THE COMPULSION OF VIRGINIA CONSTITUTIONAL AND STATUTORY PROVISIONS
MANDATING RACIAL SEGREGATION IN PUBLIC EDUCATION, VA. CONST., ART. IX,
SEC. 140 (1902); VA. CODE SEC. 22-221 (1950).  THESE PROVISIONS WERE
HELD TO VIOLATE THE FEDERAL CONSTITUTION IN DAVIS V. COUNTY SCHOOL
BOARD OF PRINCE EDWARD COUNTY, DECIDED WITH BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, 487 (BROWN I).  THE RESPONDENT SCHOOL BOARD
CONTINUED THE SEGREGATED OPERATION OF THE SYSTEM AFTER THE BROWN
DECISIONS, PRESUMABLY ON THE AUTHORITY OF SEVERAL STATUTES ENACTED BY
VIRGINIA IN RESISTANCE TO THOSE DECISIONS.  SOME OF THESE STATUTES WERE
HELD TO BE UNCONSTITUTIONAL ON THEIR FACE OR AS APPLIED.  /1/  ONE
STATUTE, THE PUPIL PLACEMENT ACT, VA. CODE SEC. 22-232.1 ET SEQ.
(1964), NOT REPEALED UNTIL 1966, DIVESTED LOCAL BOARDS OF AUTHORITY TO
ASSIGN CHILDREN TO PARTICULAR SCHOOLS AND PLACED THAT AUTHORITY IN A
STATE PUPIL PLACEMENT BOARD.  UNDER THAT ACT CHILDREN WERE EACH YEAR
AUTOMATICALLY REASSIGNED TO THE SCHOOL PREVIOUSLY ATTENDED UNLESS UPON
THEIR APPLICATION THE STATE BOARD ASSIGNED THEM TO ANOTHER SCHOOL;
STUDENTS SEEKING ENROLLMENT FOR THE FIRST TIME WERE ALSO ASSIGNED AT
THE DISCRETION OF THE STATE BOARD.  TO SEPTEMBER 1964, NO NEGRO PUPIL
HAD APPLIED FOR ADMISSION TO THE NEW KENT SCHOOL UNDER THIS STATUTE AND
NO WHITE PUPIL HAD APPLIED FOR ADMISSION TO THE WATKINS SCHOOL. 

THE SCHOOL BOARD INITIALLY SOUGHT DISMISSAL OF THIS SUIT ON THE
GROUND THAT PETITIONERS HAD FAILED TO APPLY TO THE STATE BOARD FOR
ASSIGNMENT TO NEW KENT SCHOOL.  HOWEVER ON AUGUST 2, 1965, FIVE MONTHS
AFTER THE SUIT WAS BROUGHT, RESPONDENT SCHOOL BOARD, IN ORDER TO REMAIN
ELIGIBLE FOR FEDERAL FINANCIAL AID, ADOPTED A "FREEDOM-OF-CHOICE" PLAN
FOR DESEGREGATING THE SCHOOLS.  /2/  UNDER THAT PLAN, EACH PUPIL,
EXCEPT THOSE ENTERING THE FIRST AND EIGHTH GRADES, MAY ANNUALLY CHOOSE
BETWEEN THE NEW KENT AND WATKINS SCHOOLS AND PUPILS NOT MAKING A CHOICE
ARE ASSIGNED TO THE SCHOOL PREVIOUSLY ATTENDED; FIRST AND EIGHTH GRADE
PUPILS MUST AFFIRMATIVELY CHOOSE A SCHOOL.  AFTER THE PLAN WAS FILED
THE DISTRICT COURT DENIED PETITIONERS' PRAYER FOR AN INJUNCTION AND
GRANTED RESPONDENT LEAVE TO SUBMIT AN AMENDMENT TO THE PLAN WITH
RESPECT TO EMPLOYMENT AND ASSIGNMENT OF TEACHERS AND STAFF ON A
RACIALLY NONDISCRIMINATORY BASIS.  THE AMENDMENT WAS DULY FILED AND ON
JUNE 28, 1966, THE DISTRICT COURT APPROVED THE "FREEDOM-OF-CHOICE" PLAN
AS SO AMENDED.  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, EN BANC,
382 F.2D 338, /3/  AFFIRMED THE DISTRICT COURT'S APPROVAL OF THE
"FREEDOM-OF-CHOICE" PROVISIONS OF THE PLAN BUT REMANDED THE CASE TO THE
DISTRICT COURT FOR ENTRY OF AN ORDER REGARDING FACULTY "WHICH IS MUCH
MORE SPECIFIC AND MORE COMPREHENSIVE" AND WHICH WOULD INCORPORATE IN
ADDITION TO A "MINIMAL, OBJECTIVE TIME TABLE" SOME OF THE FACULTY
PROVISIONS OF THE DECREE ENTERED BY THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT IN UNITED STATES V. JEFFERSON COUNTY BOARD OF EDUCATION, 372
F.2D 836, AFF'D EN BANC, 380 F.2D 385 (1967).  JUDGES SOBELOFF AND
WINTER CONCURRED WITH THE REMAND ON THE TEACHER ISSUE BUT OTHERWISE
DISAGREED, EXPRESSING THE VIEW "THAT THE DISTRICT COURT SHOULD BE
DIRECTED . . . ALSO TO SET UP PROCEDURES FOR PERIODICALLY EVALUATIONG
THE EFFECTIVENESS OF THE (BOARD'S) 'FREEDOM OF CHOICE' (PLAN) IN THE
ELIMINATION OF OTHER FEATURES OF A SEGREGATED SCHOOL SYSTEM."  BOWMAN
V. COUNTY SCHOOL BOARD OF CHARLES CITY COUNTY, 382 F.2D 326, AT 330. 
WE GRANTED CERTIORARI, 389 U.S.1003. 

THE PATTERN OF SEPARATE "WHITE" AND "NEGRO" SCHOOLS IN THE NEW KENT
COUNTY SCHOOL SYSTEM ESTABLISHED UNDER COMPULSION OF STATE LAWS IS
PRECISELY THE PATTERN OF SEGREGATION TO WHICH BROWN I AND BROWN II WERE
PARTICULARLY ADDRESSED, AND WHICH BROWN I DECLARED UNCONSTITUTIONALLY
DENIED NEGRO SCHOOL CHILDREN EQUAL PROTECTION OF THE LAWS.  RACIAL
IDENTIFICATION OF THE SYSTEM'S SCHOOLS WAS COMPLETE, EXTENDING NOT JUST
TO THE COMPOSITION OF STUDENT BODIES AT THE TWO SCHOOLS BUT TO EVERY
FACET OF SCHOOL OPERATIONS-- FACULTY, STAFF, TRANSPORTATION,
EXTRACURRICULAR ACTIVITIES AND FACILITIES.  IN SHORT, THE STATE, ACTING
THROUGH THE LOCAL SCHOOL BOARD AND SCHOOL OFFICIALS, ORGANIZED AND
OPERATED A DUAL SYSTEM, PART "WHITE" AND PART "NEGRO." 

IT WAS SUCH DUAL SYSTEMS THAT 14 YEARS AGO BROWN I HELD
UNCONSTITUTIONAL AND A YEAR LATER BROWN II HELD MUST BE ABOLISHED;
SCHOOL BOARDS OPERATING SUCH SCHOOL SYSTEMS WERE REQUIRED BY BROWN II
"TO EFFECTUATE A TRANSITION TO A RACIALLY NONDISCRIMINATORY SCHOOL
SYSTEM."  349 U.S.AT 301.  IT IS OF COURSE TRUE THAT FOR THE TIME
IMMEDIATELY AFTER BROWN II THE CONCERN WAS WITH MAKING AN INITIAL BREAK
IN A LONG-ESTABLISHED PATTERN OF EXCLUDING NEGRO CHILDREN FROM SCHOOLS
ATTENDED BY WHITE CHILDREN.  THE PRINCIPAL FOCUS WAS ON OBTAINING FOR
THOSE NEGRO CHILDREN COURAGEOUS ENOUGH TO BREAK WITH TRADITION A PLACE
IN THE "WHITE"  SCHOOLS.  SEE, E.G., COOPER V. AARON, 358 U.S. 1. 
UNDER BROWN II THAT IMMEDIATE GOAL WAS ONLY THE FIRST STEP, HOWEVER. 
THE TRANSITION TO A UNITARY, NONRACIAL SYSTEM OF PUBLIC EDUCATION WAS
AND IS THE ULTIMATE END TO BE BROUGHT ABOUT; IT WAS BECAUSE OF THE
"COMPLEXITIES ARISING FROM THE TRANSITION TO A SYSTEM OF PUBLIC
EDUCATION FREED OF RACIAL DISCRIMINATION" THAT WE PROVIDED FOR "ALL
DELIBERATE SPEED" IN THE IMPLEMENTATION OF THE PRINCIPLES OF BROWN I.
349 U.S.,AT 299-301.  THUS WE RECOGNIZED THE TASK WOULD NECESSARILY
INVOLVE SOLUTION OF "VARIED LOCAL SCHOOL PROBLEMS."  ID., AT 299.  IN
REFERRING TO THE "PERSONAL INTEREST OF THE PLAINTIFFS IN ADMISSION TO
PUBLIC SCHOOLS AS SOON AS PRACTICABLE ON A NONDISCRIMINATORY BASIS," WE
ALSO NOTED THAT "(TO EFFECTUATE THIS INTEREST MAY CALL FOR ELIMINATION
OF A VARIETY OF OBSTACLES IN MAKING THE TRANSITION . . . . "  ID., AT
300.  YET WE EMPHASIZED THAT THE CONSTITUTIONAL RIGHTS OF NEGRO
CHILDREN REQUIRED SCHOOL OFFICIALS TO BEAR THE BURDEN OF ESTABLISHING
THAT ADDITIONAL TIME TO CARRY OUT THE RULING IN AN EFFECTIVE MANNER "IS
NECESSARY IN THE PBULIC INTEREST AND IS CONSISTENT WITH GOOD FAITH
COMPLIANCE AT THE EARLIEST PRACTICABLE DATE."  IBID.  WE CHARGED THE
DISTRICT COURTS IN THEIR REVIEW OF PARTICULAR SITUATIONS TO 

"CONSIDER PROBLEMS RELATED TO ADMINISTRATION, ARISING FROM THE
PHYSICAL CONDITION OF THE SCHOOL PLANT, THE SCHOOL TRANSPORTATION
SYSTEM, PERSONNEL, REVISION OF SCHOOL DISTRICTS AND ATTENDANCE AREAS
INTO COMPACT UNITS TO ACHIEVE A SYSTEM OF DETERMINIING ADMISSION TO THE
PUBLIC SCHOOLS ON A NONRACIAL BASIS, AND REVISION OF LOCAL LAWS AND
REGULATIONS WHICH MAY BE NECESSARY IN SOLVING THE FOREGOING PROBLEMS. 
THEY WILL ALSO CONSIDER THE ADEQUACY OF ANY PLANS THE DEFENDANTS MAY
PROPOSE TO MEET THESE PROBLEMS AND TO EFFECTUATE A TRANSITION TO A
RACIALLY NONDISCRIMINATORY SCHOOL SYSTEM."  ID., AT 300-301. 

IT IS AGAINST THIS BACKGROUND THAT 13 YEARS AFTER BROWN II COMMANDED
THE ABOLITION OF DUAL SYSTEMS WE MUST MEASURE THE EFFECTIVENESS OF
RESPONDENT SCHOOL BOARD'S "FREEDOM-OF-CHOICE" PLAN TO ACHIEVE THAT
END.  THE SCHOOL BOARD CONTENDS THAT IT HAS FULLY DISCHARGED ITS
OBLIGATION BY ADOPTING A PLAN BY WHICH EVERY STUDENT, REGARDLESS OF
RACE, MAY "FREELY" CHOOSE THE SCHOOL HE WILL ATTEND.  THE BOARD
ATTEMPTS TO CAST THE ISSUE IN ITS BROADEST FORM BY ARGUING THAT ITS
"FREEDOM-OF-CHOICE"  PLAN MAY BE FAULTED ONLY BY READING THE FOURTEENTH
AMENDMENT AS UNIVERSALLY REQUIRING "COMPULSORY INTEGRATION," A READING
IT INSISTS THE WORDING OF THE AMENDMENT WILL NOT SUPPORT.  BUT THAT
ARGUMENT IGNORES THE THRUST OF BROWN II.  IN THE LIGHT OF THE COMMAND
OF THAT CASE, WHAT IS INVOLVED HERE IS THE QUESTION WHETHER THE BOARD
HAS ACHIEVED THE "RACIALLY NONDISCRIMINATORY SCHOOL SYSTEM" BROWN II
HELD MUST BE EFFECTUATED IN ORDER TO REMEDY THE ESTABLISHED
UNCONSTITUTIONAL DEFICIENCIES OF ITS SEGREGATED SYSTEM.  IN THE CONTEXT
OF THE STATE-IMPOSED SEGREGATED PATTERN OF LONG STANDING, THE FACT THAT
IN 1965 THE BOARD OPENED THE DOORS OF THE FORMER "WHITE" SCHOOL TO
NEGRO CHILDREN AND OF THE "NEGRO" SCHOOL TO WHITE CHILDREN MERELY
BEGINS, NOT ENDS, OUR INQUIRY WHETHER THE BOARD HAS TAKEN STEPS
ADEQUATE TO ABOLISH ITS DUAL, SEGREGATED SYSTEM.  BROWN II WAS A CALL
FOR THE DISMANTLING OF WELL-ENTRENCHED DUAL SYSTEMS TEMPERED BY AN
AWARENESS THAT COMPLEX AND MULTIFACTED PROBLEMS WOULD ARISE WHICH WOULD
REQUIRE TIME AND FLEXIBILITY FOR A SUCCESSFUL RESOLUTION.  SCHOOL
BOARDS SUCH AS THE RESPONDENT THEN OPERATING STATE-COMPELLED DUAL
SYSTEMS WERE NEVERTHELESS CLEARLY CHARGED WITH THE AFFIRMATIVE DUTY TO
TAKE WHATEVER STEPS MIGHT BE NECESSARY TO CONVERT TO A UNITARY SYSTEM
IN WHICH RACIAL DISCRIMINATION WOULD BE ELIMINATED ROOT AND BRANCH. 
SEE COOPER V. AARON, SUPRA, AT 7; BRADLEY V. SCHOOL BOARD, 382 U.S.
103; CF. WATSON V. CITY OF MEMPHIS, 373 U.S. 526.  THE CONSTITUTIONAL
RIGHTS OF NEGRO SCHOOL CHILDREN ARTICULATED IN BROWN I PERMIT NO LESS
THAN THIS; AND IT WAS TO THIS END THAT BROWN II COMMANDED SCHOOL BOARDS
TO BEND THEIR EFFORTS.  /4/ 

IN DETERMINING WHETHER RESPONDENT SCHOOL BOARD MET THAT COMMAND BY
ADOPTING ITS "FREEDOM-OF-CHOICE" PLAN, IT IS RELEVANT THAT THIS FIRST
STEP DID NOT COME UNTIL SOME 11 YEARS AFTER BROWN I WAS DECIDED AND 10
YEARS AFTER BROWN II DIRECTED THE MAKING OF A "PROMPT AND REASONABLE
START."  THIS DELIBERATE PERPETUATION OF THE UNCONSTITUTIONAL DUAL
SYSTEM CAN ONLY HAVE COMPOUNDED THE HARM OF SUCH A SYSTEM.  SUCH DELAYS
ARE NO LONGER TOLERABLE, FOR "THE GOVERNING CONSTITUTIONAL PRINCIPLES
NO LONGER BEAR THE IMPRINT OF NEWLY ENUNCIATED DOCTRINE."  WATSON V.
CITY OF MEPHIS, SUPRA, AT 529; SEE BRADLEY V. SCHOOL BOARD, SUPRA;
ROGERS V. PAUL, 382 U.S. 198.  MOREOVER, A PLAN THAT AT THIS LATE DATE
FAILS TO PROVIDE MEANINGFUL ASSURANCE OF PROMPT AND EFFECTIVE
DISESTABLISHMENT OF A DUAL SYSTEM IS ALSO INTOLERABLE.  "THE TIME FOR
MERE 'DELIBERATE SPEED' HAS RUN OUT," GRIFFIN V. COUNTY SCHOOL BOARD,
377 U.S. 218, 234; "THE CONTEXT IN WHICH WE MUST INTERPRET AND APPLY
THIS LANGUAGE (OF BROWN II) TO PLANS FOR DESEGREGATION HAS BEEN
SIGNIFICANTLY ALTERED."  GOSS V. BOARD OF EDUCATION, 373 U.S. 683,
689.  SEE CALHOUN V. LATIMER, 377 U.S. 263.  THE BURDEN ON A SCHOOL
BOARD TODAY IS TO COME FORWARD WITH A PLAN THAT PROMISES REALISTICALLY
TO WORK, AND PROMISES REALISTICALLY TO WORK NOW. 

THE OBLIGATION OF THE DISTRICT COURTS, AS IT ALWAYS HAS BEEN, IS TO
ASSESS THE EFFECTIVENESS OF A PROPOSED PLAN IN ACHIEVING
DESEGREGATION.  THERE IS NO UNIVERSAL ANSWER TO COMPLEX PROBLEMS OF
DESEGREGATION; THERE IS OBVIOUSLY NO ONE PLAN THAT WILL DO THE JOB IN
EVERY CASE.  THE MATTER MUST BE ASSESSED IN LIGHT OF THE CIRCUMSTANCES
PRESENT AND THE OPTIONS AVAILABLE IN EACH INSTANCE.  IT IS INCUMBENT
UPON THE SCHOOL BOARD TO ESTABLISH THAT ITS PROPOSED PLAN PROMISES
MEANINGFUL AND IMMEDIATE PROGRESS TOWARD DISESTABLISHING STATE-IMPOSED
SEGREGATION.  IT IS INCUMBENT UPON THE DISTRICT COURT TO WEIGH THAT
CLAIM IN LIGHT OF THE FACTS AT HAND AND IN LIGHT OF ANY ALTERNATIVES
WHICH MAY BE SHOWN AS FEASIBLE AND MORE PROMISING IN THEIR
EFFECTIVENESS.  WHERE THE COURT FINDS THE BOARD TO BE ACTING IN GOOD
FAITH AND THE PROPOSED PLAN TO HAVE REAL PROSPECTS FOR DISMANTLING THE
STATE-IMPOSED DUAL SYSTEM "AT THE EARLIEST PRACTICABLE DATE," THEN THE
PLAN MAY BE SAID TO PROVIDE EFFECTIVE RELIEF.  OF COURSE, THE
AVAILABILITY TO THE BOARD OF OTHER MORE PROMISING COURSES OF ACTION MAY
INDICATE A LACK OF GOOD FAITH; AND AT THE LEAST IT PLACES A HEAVY
BURDEN UPON THE BOARD TO EXPLAIN ITS PREFERENCE FOR AN APPARENTLY LESS
EFFECTIVE METHOD.  MOREOVER, WHATEVER PALN IS ADOPTED WILL REQUIRE
EVALUATION IN PRACTICE, AND THE COURT SHOULD RETAIN JURISDICTION UNTIL
IT IS CLEAR THAT STATE-IMPOSED SEGREGATION HAS BEEN COMPLETELY
REMOVED.  SEE NO. 805, RANEY V. BOARD OF EDUCATION, POST, AT 449. 
WE DO NOT HOLD THAT "FREEDOM OF CHOICE" CAN HAVE NO PLACE IN SUCH A
PLAN.  WE DO NOT HOLD THAT A "FREEDOM-OF-CHOICE" PLAN MIGHT OF ITSELF
BE UNCONSTITUTIONAL, ALTHOUGH THAT ARGUMENT HAS BEEN URGED UPON US.
RATHER, ALL WE DECIDE TODAY IS THAT IN DESEGREGATING A DUAL SYSTEM A
PLAN UTILIZING "FREEDOM OF CHOICE" IS NOT AN END IN ITSELF.  AS JUDGE
SOBELOFF HAS PUT IT, 

"'FREEDOM OF CHOICE' IS NOT A SACRED TALISMAN; IT IS ONLY A

  MEANS TO A CONSTITUTIONALLY REQUIRED END-- THE ABOLITION OF THE

  SYSTEM OF SEGREGATION AND ITS EFFECTS.  IF THE MEANS PROVE

  EFFECTIVE, IT IS ACCEPTABLE, BUT IF IT IT FAILS TO UNDO

  SEGREGATION, OTHER MEANS MUST BE USED TO ACHIEVE THIS END.  THE

  SCHOOL OFFICIALS HAVE THE CONTINUING DUTY TO TAKE WHATEVER ACTION

  MAY BE NECESSARY

TO CREATE A 'UNITARY, NONRACIAL SYSTEM.'"  BOWMAN V. COUNTY SCHOOL
BOARD, 382 F.2D 326, 333 (C.A. 4TH CIR. 1967) (CONCURRING OPINION). 
ACCORD, KEMP V. BEASLEY, 389 F.2D 178 (C.A. 8TH CIR. 1968); UNITED
STATES V. JEFFERSON COUNTY BOARD OF EDUCATION, SUPRA.  ALTHOUGH THE
GENERAL EXPERIENCE UNDER "FREEEDOM OF CHOICE" TO DATE HAS BEEN SUCH AS
TO INDICATE ITS INEFFECTIVENESS AS A TOOL OF DESEGREGATION, /5/  THERE
MAY WELL BE INSTANCES IN WHICH IT CAN SERVE AS AN EFFECTIVE DEVICE. 
WHERE IT OFFERS REAL PROMISE OF AIDING A DESEGREGATION PROGRAM TO
EFFECTUATE CONVERSION OF A STATE-IMPOSED DUAL SYSTEM TO A UNITARY,
NONRACIAL SYSTEM THERE MIGHT BE NO OBJECTION TO ALLOWING SUCH A DEVICE
TO PROVE ITSELF IN OPERATION.  ON THE OTHER HAND, IF THERE ARE
REASONABLY AVAILABLE OTHER WAYS, SUCH FOR ILLUSTRATION AS ZONING,
PROMISING SPEEDIER AND MORE EFFECTIVE CONVERSION TO A UNITARY,
NONRACIAL SCHOOL SYSTEM, "FREEDOM OF CHOICE"  MUST BE HELD
UNACCEPTABLE. 

THE NEW KENT SCHOOL BOARD'S "FREEDOM-OF-CHOICE" PLAN CANNOT BE
ACCEPTED AS A SUFFICIENT STEP TO "EFFECTUATE A TRANSITION" TO A UNITARY
SYSTEM.  IN THREE YEARS OF OPERATION NOT A SINGLE WHITE CHILD HAS
CHOSEN TO ATTEND WATKINS SCHOOL AND ALTHOUGH 115 NEGRO CHILDREN
ENROLLED IN NEW KENT SCHOOL IN 1967 (UP FROM 35 IN 1965 AND 111 IN
1966) 85% OF THE NEGRO CHILDREN IN THE SYSTEM STILL ATTEND THE ALL
NEGRO WATKINS SCHOOL.  IN OTHER WORDS, THE SCHOOL SYSTEM REMAINS A DUAL
SYSTEM.  RATHER THAN FURTHER THE DISMANTLING OF THE DUAL SYSTEM, THE
PLAN HAS OPERATED SIMPLY TO BURDEN CHILDREN AND THEIR PARENTS WITH A
RESPONSIBILITY WHICH BROWN II PLACED SQUARELY ON THE SCHOOL BOARD.  THE
BOARD MUST BE REQUIRED TO FORMULATE A NEW PLAN AND, IN LIGHT OF OTHER
COURSES WHICH APPEAR OPEN TO THE BOARD, SUCH AS ZONING, /6/  FASHION
STEPS WHICH PROMISE REALISTICALLY TO CONVERT PROMPTLY TO A SYSTEM
WITHOUT A "WHITE" SCHOOL AND A "NEGRO" SCHOOL, BUT JUST SCHOOLS. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED INSOFAR AS IT
AFFIRMED THE DISTRICT COURT AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/ E.G., GRIFFIN V. COUNTY SCHOOL BOARD OF RINCE EDWARD COUNTY, 377
U.S. 218; GREEN V. SCHOOL BOARD OF CITY OF ROANOKE, 304 F.2D 118 (C.A.
4TH CIR. 1962); ADKINS V. SCHOOL BOARD OF CITY OF NEWPORT NEWS, 148
F.SUPP.  430 (D.C.E.D. VA.), AFF'D, 246 F.2D 325 (C.A. 4TH CIR. 1957);
JAMES V. ALMOND, 170 F.SUPP.  331 (D.C.E.D. VA. 1959); HARRISON V. DAY,
200 VA. 439, 106 S.E.2D 636 (1959). 

/2/  CONGRESS, CONCERNED WITH THE LACK OF PROGRESS IN SCHOOL
DESEGREGATION, INCLUDED PROVISIONS IN THE CIVIL RIGHTS ACT OF 1964 TO
DEAL WITH THE PROBLEM THROUGH VARIOUS AGENCIES OF THE FEDERAL
GOVERNMENT.  78 STAT. 246, 252, 266, 42 U.S.C. 2000C ET SEQ., 2000D ET
SEQ., 2000H-2.  IN TITLE VI CONGRESS DECLARED THAT 

"NO PERSON IN THE UNITED STATES SHALL, ON THE GROUND OF RACE, COLOR,
OR NATIONAL ORIGIN, BE EXCLUDED FROM PRARTICIPATION IN, BE DENIED THE
BENEFITS OF, OR BE SUBJECTED TO DISCRIMINATION UNDER ANY PROGRAM OR
ACTIVITY RECEIVING FEDERAL FINANCIAL ASSISTANCE."  42 U.S.C. 2000D. 
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE ISSUED REGULATIONS
COVERING RACIAL DISCRIMINATION IN FEDERALLY AIDED SCHOOL SYSTEMS, AS
DIRECTED BY 42 U.S.C. 2000D-1, AND IN A STATEMENT OF POLICIES, OR
"GUIDELINES," THE DEPARTMENT'S OFFICE OF EDUCATION ESTABLISHED
STANDARDS ACCORDING TO WHICH SCHOOL SYSTEMS IN THE PROCESS OF
DESEGREGATION CAN REMAIN QUALIFIED FOR FEDERAL FUNDS.  45 CFR 80.1
80.13, 181.1-181.76 (1967).  "FREEDOM-OF-CHOICE" PLANS ARE AMONG THOSE
CONSIDERED ACCEPTABLE, SO LONG AS IN OPERATION SUCH A PLAN PROVES
EFFECTIVE.  45 CFR 181.54.  THE REGULATIONS PROVIDE THAT A SCHOOL
SYSTEM "SUBJECT TO A FINAL ORDER OF A COURT OF THE UNITED STATES FOR
THE DESEGREGATION OF SUCH SCHOOL . . . SYSTEM" WITH WHICH THE SYSTEM
AGREES TO COMPLY IS DEEMED TO BE IN COMPLIANCE WITH THE STATUTE AND
REGULATIONS.  45 CFR 80.4(C).  SEE ALSO 45 CFR 181.6.  SEE GENERALLY
DUNN, TITLE VI, THE GUIDELINES AND SCHOOL DESEGREGATION IN THE SOUTH,
53 VA.L.REV.  42 (1967); NOTE, 55 GEO.L.J. 325 (1966); COMMENT, 77 YALE
L.J. 321 (1967). 

/3/  THIS CASE WAS DECIDED PER CURIAM ON THE BASIS OF THE OPINION IN
BOWMAN V. COUNTY SCHOOL BOARD OF CHARLES CITY COUNTY, 382 F.2D 326,
DECIDED THE SAME DAY.  CERTIORARI HAS NOT BEEN SOUGHT FOR THE BOWMAN
CASE ITSELF. 

/4/  "WE BEAR IN MIND THAT THE COURT HAS NOT MERELY THE POWER BUT
THE DUTY TO RENDER A DECREE WHICH WILL SO FAR AS POSSIBLE ELIMINATE THE
DISCRIMINATORY EFFECTS OF THE PAST AS WELL AS BAR LIKE DISCRIMINATION
IN THE FUTURE."  LOUISIANA V. UNITED STATES, 380 U.S. 145, 154. 
COMPARE THE REMEDIES DISCUSSED IN, E.G., NLRB V. NEWPORT NEWS
SHIPBUILDING & DRY DOCK CO., 308 U.S. 241; UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173; STANDARD OIL CO. V. UNITED STATES, 221
U.S. 1.  SEE ALSO GRIFFIN V. COUNTY SCHOOL BOARD, 377 U.S. 218, 232
234. 

/5/  THE VIEWS OF THE UNITED STATES COMMISSION ON CIVIL RIGHTS,
WHICH WE NEITHER ADOPT NOR REFUSE TO ADOPT, ARE AS FOLLOWS: 

"FREEDOM OF CHOICE PLANS, WHICH HAVE TENDED TO PERPETUATE RACIALLY
IDENTIFIABLE SCHOOLS IN THE SOUTHERN AND BORDER STATES, REQUIRE
AFFIRMATIVE ACTION BY BOTH NEGRO AND WHITE PARENTS AND PUPILS BEFORE
SUCH DISESTABLISHMENT CAN BE ACHIEVED.  THERE ARE A NUMBER OF FACTORS
WHICH HAVE PREVENTED SUCH AFFIRMATIVE ACTION BY SUBSTANTIAL NUMBERS OF
PARENTS AND PUPILS OF BOTH RACES: 

"(A) FEAR OF RETAILIATION AND HOSTILITY FROM THE WHITE COMMUNITY
CONTINUE TO DETER MANY NEGRO FAMILIES FROM CHOOSING FORMERLY ALL-WHITE
SCHOOLS; 

"(B) DURING THE PAST SCHOOL YEAR (1966-1967), AS IN THE PREVIOUS
YEAR, IN SOME AREAS OF THE SOUTH, NEGRO FAMILIES WITH CHILDREN
ATTENDING PREVIOUSLY ALL-WHITE SCHOOLS UNDER FREE CHOICE PLANS WERE
TARGETS OF VIOLENCE, THREATS OF VIOLENCE AND ECONOMIC REPRISAL BY WHITE
PERSONS AND NEGRO CHILDREN WERE SUBJECTED TO HARASSMENT BY WHITE
CLASSMATES NOTWITHSTANDING CONSCIENTIOUS EFFORTS BY MANY TEACHERS AND
PRINCIPALS TO PREVENT SUCH MISCONDUCT; 

"(C) DURING THE PAST SCHOOL YEAR, IN SOME AREAS OF THE SOUTH PUBLIC
OFFICIALS IMPROPERLY INFLUENCED NEGRO FAMILIES TO KEEP THEIR CHOLDREN
IN NEGRO SCHOOLS AND EXCLUDED NEGRO CHILDREN ATTENDING FROMERLY ALL
WHITE SCHOOLS FROM OFFICIAL FUNCTIONS; 

"(D) POVERTY DETERS MANY NEGRO FAMILIES IN THE SOUTH FROM CHOOSING
FORMERLY ALL-WHITE SCHOOLS.  SOME NEGRO PARENTS ARE EMBARRASSED TO
PERMIT THEIR CHILDREN TO ATTEND SUCH SCHOOLS WITHOUT SUITABLE
CLOTHING.  IN SOME DISTRICTS SPECIAL FEES ARE ASSESSED FOR COURSES
WHICH ARE AVAILABLE ONLY IN THE WHITE SCHOOLS; 

"(E) IMPROVEMENTS IN FACILITIES AND EQUIPMENT . . . HAVE BEEN
INSTITUTED IN ALL-NEGRO SCHOOLS IN SOME SCHOOL DISTRICTS IN A MANNER
THAT TENDS TO DISCOURAGE NEGROES FROM SELECTING WHITE SCHOOLS." 
SOUTHERN SCHOOL DESEGREGATION, 1966-1967, AT 88 (1967).  SEE ID., AT 45
69; SURVEY OF SCHOOL DESEGREGATION IN THE SOUTHERN AND BOARDER STATES
1965-1966, AT 30-44, 51-52 (U.S. COMM'N ON CIVIL RIGHTS 1966). 

/6/  "IN VIEW OF THE SITUATION FOUND IN NEW KENT COUNTY, WHERE THERE
IS NO RESIDENTIAL SEGREGATION, THE ELIMINATION OF THE DUAL SCHOOL
SYSTEM AND THE ESTABLISHMENT OF A 'UNITARY, NON-RACIAL SYSTEM' COULD BE
READILY ACHIEVED WITH A MINIMUM OF ADMINISTRATIVE DIFFICULTY BY MEANS
OF GEOGRAPHIC ZONING-- SIMPLY BY ASSIGNING STUDENTS LIVING IN THE
EASTERN HALF OF THE COUNTY TO THE WATKINS SCHOOL.  ALTHOUGH A
GEOGRAPHICAL FORMULA IS NOT UNIVERSALLY APPROPRIATE, IT IS EVIDENT THAT
HERE THE BOARD, BY SEPARATELY BUSING NEGRO CHILDREN ACROSS THE ENTIRE
COUNTY TO THE 'NEGRO' SCHOOL, AND THE WHITE CHILDREN TO THE 'WHITE'
SCHOOL, IS DELIBERATELY MAINTAINING A SEGREGATED SYSTEM WHICH WOULD
VANISH WITH NON-RACIAL GEOGRAPHIC ZONING.  THE CONDITIONS IN THIS
COUNTY PRESENT A CLASSICAL CASE FOR THIS EXPEDIENT."  BOWMAN V. COUNTY
SCHOOL BOARD, SUPRA, N. 3, AT 332 (CONCURRING OPINION).  PETITIONERS
HAVE ALSO SUGGESTED THAT THE BOARD COULD CONSOLIDATE THE TWO SCHOOLS,
ONE SITE (E.G., WATKINS) SERVING GRADES 1-7 AND THE OTHER (E.G., NEW
KENT) SERVING GRADES 8-12, THIS BEING THE GRADE DIVISION RESPONDENT
MAKES BETWEEN ELEMENTARY AND SECONDARY LEVELS.  PETITIONERS CONTEND
THIS WOULD RESULT IN A MORE EFFICIENT SYSTEM BY ELIMINATING COSTLY
DUPLICATION IN THIS RELATIVELY SMALL DISTRICT WHILE AT THE SAME TIME
ACHIEVING IMMEDIATE DISMANTLING OF THE DUAL SYSTEM.  THESE ARE TWO
SUGGESTIONS THE DISTRICT COURT SHOULD TAKE INTO ACCOUNT UPON REMAND,
ALONG WITH ANY OTHER PROPOSED ALTERNATIVES AND IN LIGHT OF
CONSIDERATIONS RESPECTING OTHER ASPECTS OF THE SCHOOL SYSTEM SUCH AS
THEMATTER OF FACULTY AND STAFF DESEGREGATION REMANDED TO THE COURT BY
THE COURT OF APPEALS. 

SAMUEL W. TUCKER AND JACK GREENBERG ARGUED THE CAUSE FOR
PETITIONERS.  WITH THEM ON THE BRIEF WERE JAMES M. NABRIT III, HENRY L.
MARSH III, AND MICHAEL MELTSNER. 

FREDERICK T. GRAY ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM OF THE
BRIEF WERE ROBERT Y. BUTTON, ATTORNEY GENERAL OF VIRGINIA, ROBERT D.
MCILWAINE III, FIRST ASSISTANT ATTORNEY GENERAL, AND WALTER E. ROGERS. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES, AS AMICUS
CURIAE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL POLLAK, LAWRENCE G. WALLACE, AND BRIAN K.
LANDSBERG.  JOSEPH B. ROBINSON FILED A BRIEF FOR THE AMERICAN JEWISH
CONGRESS, AS AMICUS CURIAE, URGING REVERSAL. 
..END :






RANEY V. BOARD OF EDUCATION, 391 U.S. 443 


       RANEY ET AL. V. BOARD OF EDUCATION OF THE GOULD SCHOOL

           DISTRICT ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 805.  ARGUED APRIL 3, 1968.-- DECIDED MAY 27, 1968. 


THE GOULD (ARKANSAS) SCHOOL DISTRICT, WHICH HAS A POPULATION OF ABOUT
60% NEGROES, WITH NO RESIDENTIAL SEGREGATION, MAINTAINS TWO COMBINATION
ELEMENTARY AND HIGH SCHOOLS LOCATED ABOUT TEN BLAOCKS APART IN THE
DISTRICT'S ONLY MAJOR TOWN.  IN THE 1964-1965 SCHOOL YEAR THE SCHOOLS
WERE TOTALLY SEGREGATED.  AS IN GREEN V. COUNTY SCHOOL BOARD, ANTE, P.
430, THE SCHOOL BOARD IN 1965 ADOPTED A "FREEDOM-OF-CHOICE"  PLAN IN
ORDER TO REMAIN ELIGIBLE FOR FEDERAL FINANCIAL AID.  THE PLAN APPLIES
TO ALL SCHOOL GRADES AND PUPILS ARE REQUIRED TO CHOOSE ANNUALLY BETWEEN
THE SCHOOLS; THOSE NOT CHOOSING ARE ASSIGNED TO THE SCHOOL PREVIOUSLY
ATTENDED.  NO WHITE STUDENT HAS SOUGHT TO ENROLL IN THE ALL-NEGRO FIELD
SCHOOLS IN THREE YEARS, AND ALTHOUGH ABOUT 85 NEGRO STUDENTS WERE
ENROLLED IN THE FORMERLY ALL-WHITE GOULD SCHOOLS IN 1967, OVER 85% OF
THE NEGRO PUPILS STILL ATTEND THE ALL-NEGRO FIELD SCHOOLS.  IN THE
FIRST YEAR UNDER THE PLAN APPLICATIONS FOR CERTAIN GRADES AT THE GOULD
SCHOOLS EXCEEDED AVAILABLE SPACE AND APPLICATIONS OF 28 NEGROES WERE
REFUSED.  THIS ACTION WAS BROUGHT ON BEHALF OF SOME OF THEM FOR
INJUNCTIVE RELIEF AGAINST THEIR BEING REQUIRED TO ATTEND THE FIELD
SCHOOLS, THE PROVISION OF INFERIONR SCHOOL FACILITIES FOR NEGROES, AND
RESPONDENTS'"OTHERWISE OPERATING A RACIALLY SEGREGATED SCHOOL SYSTEM." 
DURING THE PENDENCY OF THE CASE PLANS WERE MADE TO REPLACE THE HIGH
SCHOOL BUILDING AT FIELD SCHOOLS.  PETITIONERS SOUGHT TO ENJOIN THAT
CONSTRUCTION, CONTENDING THAT IT SHOULD BE BUILT AT THE GOULD SITE TO
AVOID CONTINUED SEGREGATION.  THE DISTRICT COURT DENIED ALL RELIEF AND
DISMISSED THE COMPLAINT, RULINT THAT SINCE THE "FREEDOM-OF-CHOICE" PLAN
WAS ADOPTED WITHOUT COURT COMPULSION, THE PLAN WAS APPROVED BY THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, AND SOME NEGROES HAD
ENROLLED IN THE GOULD SCHOOLS, THE PLAN WAS NOT A PRETENSE OR A SHAM. 
THE COURT OF APPEALS AFFIRMED THE DISMISSAL, SUGGESTING THAT THE ISSUE
OF THE ADEQUACY OF THE PLAN OR ITS IMPLEMENTATION WAS NOT RAISED IN THE
DISTRICT COURT.  SINCE CONSTRUCTION OF THE HIGH SCHOOL AT THE FIELD
SITE WAS NEARING COMPLETION, PETITIONERS MODIFIED THEIR POSITION AND
URGED THE COURT OF APPEALS TO REQUIRE CONVERSION OF THE GOULD SCHOOLS
TO A DESEGREGATED HIGH SCHOOL AND THE FIELD SITE TO A DESEGREGATED
PRIMARY SCHOOL.  THE COURT OF APPEALS REJECTED THIS PROPOSAL SINCE IT
WAS NOT PRESENTED TO THE TRIAL COURT FOR CONSIDERATION.  HELD: 

1.  SINCE THE ISSUE OF THE ADEQUACY OF THE "FREEDOM-OF-CHOICE" PLAN
WAS BEFORE THE DISTRICT COURT IN THE PRAYER OF THE COMPLAINT TO ENJOIN
RESPONDENTS'"OTHERWISE OPERATING A RACIALLY SEGREGATED SCHOOL SYSTEM,"
AND THE DISTRICT COURT AND THE COURT OF APPEALS CONSIDERED THE MERITS
OF THE PLAN, THE QUESTION OF THE ADEQUACY OF "FREEDOM OF CHOICE" IS
PROPERLY BEFORE THIS COURT.  P. 447. 

2.  AS IN GREEN V. COUNTY SCHOOL BOARD, SUPRA, THE SCHOOL SYSTEM
REMAINS A DUAL SYSTEM AND THE PLAN IS INADEQUATE TO CONVERT IT TO A
UNITARY, NONRACIAL SYSTEM.  P. 447. 

3.  ON REMAND PETITIONERS MAY PRESENT THEIR PROPOSAL FOR CONVERTING
ONE SCHOOL TO A DESEGREGATED HIGH SCHOOL AND THE OTHER TO A
DESEGREGATED PRIMARY SCHOOL.  P. 448. 

4.  THE DISTRICT COURT'S DISMISSAL OF THE COMPLAINT WAS AN IMPORPER
EXERCISE OF DISCRETION, AND INCONSISTENT WITH THAT COURT'S
RESPONSIBILITY UNDER BROWN V. BOARD OF EDUCATION, 349 U.S. 294, TO
RETAIN JURISDICTION "TO INSURE (1) THAT A CONSTITUTIONALLY ACCEPTABLE
PLAN IS ADOPTED, AND (2) THAT IT IS OPERATED IN A CONSTITUTIONALLY
PERMISSIBLE FASHION SO THAT THE GOAL OF A DESEGREGATED, NONRACIALLY
OPERATED SCHOOL SYSTEM IS RAPIDLY AND FINALLY ACHIEVED."  KELLEY V.
ALTHEIMER, 378 F.2D 483, 489.  P. 449. 

381 F.2D 252, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE ADEQUACY OF A "FREEDOM-OF
CHOICE" PLAN AS COMPLIANCE WITH BROWN V. BOARD OF EDUCATION, 349 U.S.
294 (BROWN II), A QUESTION ALSO CONSIDERED TODAY IN NO. 695, GREEN V.
COUNTY SCHOOL BOARD OF NEW KENT COUNTY, ANTE, P. 430.  THE FACTUAL
SETTING IS VERY SIMILAR TO THAT IN GREEN. 

THIS ACTION WAS BROUGHT IN SEPTEMBER 1965 IN THE DISTRICT COURT FOR
THE EASTERN DISTRICT OF ARKANSAS.  INJUNCTIVE RELIEF WAS SOUGHT AGAINST
THE CONTINUED MAINTENANCE BY RESPONDENT BOARD OF EDUCATION OF AN
ALLEGED RACIALLY SEGREGATED SCHOOL SYSTEM.  THE SCHOOL DISTRICT HAS AN
AREA OF 80 SQUARE MILES AND A POPULATION OF SOME 3,000 OF WHOM 1,800
ARE NEGROES AND 1,200 ARE WHITES.  PERSONS OF BOTH RACES RESIDE
THROUGHOUT THE COUNTY; THERE IS NO RESIDENTIAL SEGREGATION.  THE SCHOOL
SYSTEM CONSISTS OF TWO COMBINATION ELEMENTARY AND HIGH SCHOOLS LOCATED
ABOUT 10 BLOCKS APART IN GOULD, THE DISTRICT'S ONLY MAJOR TOWN.  ONE
COMBINATION, THE GOULD SCHOOLS, IS ALMOST ALL WHITE AND THE OTHER, THE
FIELD SCHOOLS, IS ALL-NEGRO.  IN THE 1964-1965 SCHOOL YEAR THE SCHOOLS
WERE TOTALLY SEGREGATED; 580 NEGRO CHILDREN ATTENDED THE FIELD SCHOOLS
AND 300 WHITE CHILDREN ATTENDED THE GOULD SCHOOLS.  FACULTIES AND
STAFFS WERE AND ARE SEGREGATED.  THERE ARE NO ATTENDANCE ZONES, EACH
SCHOOL COMPLEX PROVIDING ANY NECESSARY BUS TRANSPORTATION FOR ITS
RESPECTIVE PUPILS. 

THE STATE-IMPOSED SEGREGATED SYSTEM EXISTED AT THE TIME OF THE
DECISIONS IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 349 U.S. 294. 
THEREAFTER RACIAL SEPARATION WAS REQUIRED BY SCHOOL BOARD POLICY.  AS
IN GREEN, RESPONDENT FIRST TOOK STEPS IN 1965 TO ABANDON THAT POLICY TO
REMAIN ELIGIBLE FOR FEDERAL FINANCIAL AID.  THE BOARD ADOPTED A
"FREEDOM-OF-CHOICE" PLAN EMBODYING THE ESSENTIALS OF THE PLAN
CONSIDERED IN GREEN.  IT WAS MADE IMMEDIATELY APPLICABLE TO ALL
GRADES.  PUPILS ARE REQUIRED TO CHOOSE ANNUALLY BETWEEN THE GOULD
SCHOOLS AND THE FIELD SCHOOLS AND THOSE NOT EXERCISING A CHOICE ARE
ASSIGNED TO THE SCHOOL PREVIOUSLY ATTENDED. 

THE EXPERIENCE AFTER THREE YEARS OF OPERATION WITH "FREEDOM OF
CHOICE" HAS MIRRORED THAT IN GREEN.  NOT A SINGLE WHITE CHILD HAS
SOUGHT TO ENROLL IN THE ALL-NEGRO FIELD SCHOOLS, AND ALTHOUGH SOME 80
TO 85 NEGRO CHILDREN WERE ENROLLED IN THE GOULD SCHOOLS IN 1967, OVER
85% OF THE NEGRO CHILDREN IN THE SYSTEM STILL ATTEND THE ALL-NEGRO
FIELD SCHOOLS. 

THIS LITIGATION RESULTED FROM A PROBLEM THAT AROSE IN THE OPERATION
OF THE PLAN IN ITS FIRST YEAR.  THE NUMBER OF CHILDREN APPLYING FOR
ENROLLMEBT IN THE FIFHT, TENTH, AND ELEVENTH GRADES AT GOULD EXCEEDED
THE NUMBER OF PLACES AVAILABLE AND APPLICATIONS OF 28 NEGROES FOR THOSE
GRADES WERE REFUSED.  THIS ACTION WAS THEREUPON FILED ON BEHALF OF 16
OF THESE CHILDREN AND OTHERS SIMILARLY SITUATED.  THEIR COMPLAINT
SOUGHT INJUNCTIVE RELIEF, AMONG OTHER THINGS, AGAINST THEIR BEING
REQUIRED TO ATTEND THE FIELD SCHOOOLS, AGAINST THE PROVISION BY
RESPONDENT OF PUBLIC SCHOOL FACILITIES FOR NEGRO PUPILS INFERIOR TO
THOSE PROVIDED FOR WHITE PUPILS, AND AGAINST RESPONDENT'S "OTHERWISE
OPERATING A RACIALLY SEGREGATED SCHOOL SYSTEM."  WHILE THE CASE WAS
PENDING IN THE DISTRICT COURT, RESPONDENT MADE PLANS TO REPLACE THE
HIGH SCHOOL BUILDING AT FIELD SCHOOLS.  PETITIONERS SOUGHT
UNSUCCESSFULLY TO ENJOIN CONSTRUCTION AT THAT SITE, CONTENDING THAT THE
NEW HIGH SCHOOL SHOULD BE BUILT AT THE GOULD SITE TO AVOID PERPETUATION
OF THE SEGREGATED SYSTEM.  THEREAFTER THE DISTRICT COURT, IN AN
UNREPORTED OPINION, DENIED ALL RELIEF AND DISMISSED THE COMPLAINT.  IN
THE DISTRICT COURT'S VIEW THE FACT THAT RESPONDENT HAD ADOPTED "FREEDON
OF CHOICE" WITHOUT THE COMPULSION OF A COURT ORDER, THAT THE PLAN WAS
APPROVED BY THE DEPARTMENT OF EHALTH, EDUCATION, AND WELFARE, AND THAT
SOME NEGRO PUPILS HAD ENROLLED IN THE GOULD SCHOOLS "SEEMS TO INDICATE
THAT THIS PLAN IS MORE THAN A PRETENSE OR SHAM TO MEET THE MINIMUM
REQUIREMENTS OF THE LAW."  IN LIGHT OF THIS CONCLUSION THE DISTRICT
COURT HELD THAT PETITIONERS WERE NOT ENTITLED TO THE OTHER RELIEF
REQUIRESTED, INCLUDING AN INJUNCTION AGAINST BUILDING THE NEW HIGH
SCHOOL AT THE FIELD SITE.  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT
AFFIRMED THE DISMISSAL.  381 F.2D 252.  WE GRANTED CERTIORARI, 389 U.S.
1034, AND SET THE CASE FOR ARGUMENT FOLLOWING NO. 740, MONROE V. BOARD
OF COMMISSIONERS OF THE CITY OF JACKSON, POST, P. 450. 

THE COURT OF APPEALS SUGGESTED THAT "NO ISSUE ON THE ADEQUACY OF THE
PLAN ADOPTED BY THE BOARD OR ITS IMPLEMENTATION WAS RAISED IN THE
DISTRICT COURT.  ISSUES NOT FAIRLY RAISED IN THE DISTRICT COURT CANNOT
ORDINARILY BE CONSIDERED UPON APPEAL."  381 F.2D, AT 257.  INSOFAR AS
THIS REFERS TO THE "FREEDOM-OF-CHOICE" PLAN THE SUGGESTION IS REFUTED
BY THE RECORD.  NOT ONLY WAS THE ISSUE EMBRACED BY THE PRAYER IN
PETITIONERS' COMPLAINT FOR AN INJUNCTION AGAINST RESPONDENT "OTHERWISE
OPERATING A RACIALLY SEGREGATED SCHOOL SYSTEM" BUT THE ADEQUACY OF THE
PLAN WAS TRIED AND ARGUED BY THE PARTIES AND DECIDED BY THE DISTRICT
COURT.  MOREOVER, THE COURT OF APPEALS WENT ON TO CONSIDER THE MERITS,
HOLDING, IN AGREEMENT WITH DISTRICT COURT, THAT "WE FIND NO SUBSTANTIAL
EVIDENCE TO SUPPORT A FINDING THAT THE BOARD WAS NOT PROCEEDING TO
CARRY OUT THE PLAN IN GOOD FAITH."  IBID.  /1/  IN THE CIRCUMSTANCES
THE QUESTION OF THE ADEQUACY OF "FREEDOM OF CHOICE" IS PROPERLY BEFORE
US.  ON THE MERITS, OUR DECISION IN GREEN V. COUNTY SCHOOL BOARD,
SUPRA, ESTABLISHES THAT THE PLAN IS INADEQUATE TO CONVERT TO A SCHOOL
SYSTEM REMAINS A DUAL SYSTEM.  RATHER THAN FURTHER THE DISMANTLING OF
THE DUAL SYSTEM, THE PLAN HAS OPERATED SIMPLY TO BURDEN CHILDREN AND
THEIR PARENTS WITH A RESPONSIBILITY WHICH BROWN II PLACED SQUARELY ON
THE SCHOOL BOARD.  THE BOARD MUST BE REQUIED TO FORMULATE A NEW PLAN
AND, IN LIGHT OF OTHER COURSES WHICH APPEAR OPEN TO THE BOARD, SUCH AS
ZONING, FASHION STEPS WHICH PROMISE REALISTICALLY TO CONVERT PROMPTLY
TO A SYSTEM WITHOUT A 'WHITE' SCHOOL AND A 'NEGRO' SCHOOL, BUT JUST
SCHOOLS."  ID., AT 441-442. 

THE PETITIONERS DID NOT PRESS IN THE COURT OF APPEALS THEIR APPEAL
FROM THE DENIAL OF THEIR PRAYER TO HAVE THE NEW HIGH SCHOOL FACILITIES
CONSTRUCTED AT THE GOULD SCHOOLS SITE RATHER THAN AT THE FIELD SCHOOLS
SITE.  DUE TO THE ILLNESS OF THE COURT REPORTER THERE WAS DELAY IN BE
FILING OF THE TRANSCRIPT OF THE PROCEEDINGS IN THE DISTRICT COURT AND
MEANWHILE THE CONSTRUCTIN AT THE FIELD SCHOOLS SITE WAS SUBSTANTIALLY
COMPLETED.  PETITIONERS THEREFORE MODIFIED THEIR POSITION AND URGED IN
THE COURT OF APPEALS THAT RESPONDENT BE REQUIRED TO CONVERT THE GOULD
SCHOOLS TO A COMPLETELY DESEGREGATED PRIMARY SCHOOL.  THE COURT OF
APPEALS REJECTED THE PROPOSITION ON THE GROUND THAT IT "WAS NOT
PRESENTED TO THE TRIAL COURT AND NO OPPORTUNITY WAS AFFORDED THE
PARTIES TO OFFER EVIDENCE ON THE FEASIBILITY OF SUCH A PLAN, NOR WAS
THE TRIAL COURT GIVEN ANY OPPORTUNITY TO PASS THEREON."  381 F.2D,AT
254.  SINCE THERE MUST BE A REMAND, PETITIONERS ARE NOT FORECLOSED FROM
MAKING THEIR PROPOSAL AN ISSUE IN THE FURTHER PROCEEDINGS.  /2/ 

FINALLY, WE HOLD THAT IN THE CIRCUMSTANCES OF THIS CASE, THE
DISTRICT COURT'S DISMISSAL OF THE COMPLAINT WAS AN IMPROPER EXERCISE OF
DISCRETION.  DISMISSAL WILL ORDINARILY BE INCONSISTENT WITH THE
RESPONSIBILITY IMPOSED ON THE DISTRICT COURTS BY BROWN II.  349 U.S.,AT
299-301.  IN LIGHT OF THE COMPLEXITIES INHERING IN THE DISESTABLISHMENT
OF STATE-ESTABLISHED SEGREGATED SCHOOL SYSTEMS, BROWN II CONTEMPLATED
THAT THE BETTER COURSE WOULD BE TO RETAIN JURISDICTION UNTIL IT IS
CLEAR THAT DISESTABLISHMENT HAS BEEN ACHIEVED.  WE AGREE WITHTHE
OBSERVATION OF ANOTHER PANEL OF JUDGES OF THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT IN ANOTHER CASE THAT THE DISTRICT COURTS "SHOULD RETAIN
JURISDICTION IN SCHOOL SEGREGATION CASES TO INSURE (1) THAT A
CONSTITUTIONALLY ACCEPTABLE PLAN IS ADOPTED, AND (2) THAT IT IS
OPERATED IN A CONSTITUTIONALLY PERMISSIBLE FASHION SO THAT THE GOAL OF
A DESEGREGATED, NON-RACIALLY OPERATED SCHOOL SYSTEM IS RAPIDLY AND
FINALLY ACHIEVED."  KELLEY V. ALTHEIMER, 378 F.2D 483, 489.  SEE ALSO
KEMP V. BEASLEY, 389 F.2D 178. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION AND WITH OUR OPINION IN GREEN V. COUNTY SCHOOL BOARD,
SUPRA.

              IT IS SO ORDERED. 

/1/  COMPARE THE DEVELOPING VIEWS OF THE FEASIBILITY OF "FREEDOM-OF
CHOICE" PLANS EXPRESSED BY VARIOUS PANELS OF THE COURT OF APPEALS FOR
THE EIGHTH CIRCUIT IN KEMP V. BEASLEY, 352 F.2D 14; CLARK V. BOARD OF
EDUCATION, 374 F.2D 569; KELLEY V. ALTHEIMER, 378 F.2D 483; KEMP V.
BEASLEY, 389 F.2D 178; AND JACKSON V. MARVELL SCHOOL DISTRICT NO. 22,
389 F.2D 740. 

/2/  THE COURT OF APPEALS, WHILE DENYING PETITIONERS' REQUEST FOR
RELIEF ON APPEAL, DID OBSERVE THAT "THERE IS NO SHOWING THAT THE FIELD
FACILITIES WITH THE NEW CONSTRUCTION ADDED COULD NOT BE CONVERTED AT A
REASONABLE COST INTO A COMPLETELY INTEGRATED GRADE SCHOOOL OR INTO A
COMPLETELY INTEGRATED HIGH SCHOOL WHEN THE APPROPRIATE TIME FOR SUCH
COURSE ARRIVES.  WE NOTE THAT THE BUILDING NOW OCCUPIED BY THE
PREDOMINANTLY WHITE GOULD GRADE SCHOOL HAD ORIGINALLY BEEN BUILT TO
HOUSE THE GOULD HIGH SCHOOL."  381 F.2D, AT 255. 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE JAMES M. NABRIT III AND MICHAEL MELTSNER. 

ROBERT V. LIGHT ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS HERSCHEL H. FRIDAY. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES, AS AMICUS
CURIAE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL POLLAK, LAWRENCE G. WALLACE, AND BRIAN K.
LANDSBERG. 
..END :










MONROE V. BOARD OF COMMISSIONERS, 391 U.S. 450 


       MONROE ET AL. V. BOARD OF COMMISSIONERS OF THE CITY OF

           JACKSON ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 740.  ARGUED APRIL 3, 1968.-- DECIDED MAY 27, 1968. 


ABOUT ONE-THIRD OF THE CITY OF JACKSON'S POPULATION OF 40,000 ARE
NEGROES, THE GREAT MAJORITY OF WHOM LIVE IN THE CITY'S CENTRAL AREA. 
THE CITY SCHOOL SYSTEM HAS EIGHT ELEMENTARY, THREE JUNIOR HIGH, AND TWO
SENIOR HIGH SCHOOLS FOR THE 7,650 STUDENTS, OF WHOM ABOUT 40% ARE
NEGROES.  TENNESSEE LAW IN 1954 REQUIRED RACIAL SEGREGATION IN SCHOOLS;
FIVE ELEMENTARY AND TWO JUNIOR HIGH SCHOOLS AND ONE SENIOR HIGH SCHOOL
WERE OPERATED AS "WHITE" SCHOOLS, AND THE REMAINDER AS "NEGRO"
SCHOOLS.  AFTERBROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954),
DECLARED SUCH DUAL SYSTEMS UNCONSTITUTIONAL, TENNESSEE ENACTED A PUPIL
PLACEMENT LAW, WHICH GAVE LOCAL SCHOOL BOARDS EXCLUSIVE AUTHORITY TO
APPROVE ASSIGNMENTS.  NO WHITE STUDENTS ENROLLED IN ANY "NEGRO" SCHOOL
AND ONLY SEVEN APPLICATIONS WERE GRANTED IN TWO YEARS PERMITTING NEGRO
PUPILS TO ENROLL IN "WHITE" SCHOOLS.  IN MARCH 1962 THE COURT OF
APPEALS HELD THAT LAW INADEQUATE "AS A PLAN TO CONVERT A BIRACIAL
SYSTEM INTO A NONRACIAL ONE."  THIS ACTION WAS BROUGHT IN JANUARY 1963,
SEEKING A DECLARATORY JUDGMENT THAT RESPONDENTS WERE OPERATING A
RACIALLY SEGREGATED SYSTEM, INJUNCTIVE RELIEF AGAINST MAINTENANCE OF
THAT SYSTEM, AN ORDER DIRECTING ADMISSION TO NAMED "WHITE" SCHOOLS OF
NEGRO PLAINTIFFS, AND AN ORDER REQUIRING THE SCHOOL BOARD TO FORMULATE
AND FILE A DESEGREGATION PLAN.  THE DISTRICT COURT ORDERED THE STUDENTS
ENROLLED AND THE FILING OF A PLAN.  A PLAN WAS FILED, AND WITH COURT
DIRECTED MODIFICATIONS, WAS APPROVED IN AUGUST 1963, TO BE EFFECTIVE AT
ONCE IN THE ELEMENTARY SCHOOLS AND TO BE EXTENDED OVER A FOUR-YEAR
PERIOD TO JUNIOR AND SENIOR HIGHS SCHOOLS.  THE MODIFIED PLAN PROVIDES
FOR AUTOMATIC ASSIGNMENT OF PUPILS WITHIN ATTENDANCE ZONES DRAWN ALONG
GEOGRAPHIC OR "NATURAL" BOUNDARIES, AND "ACCORDING TO THE CAPACITY AND
FACILITIES" OF THE SCHOOLS.  HOWEVER, THE PLAN ALSO HAS A "FREE
TRANSFER" PROVISION BY WHICH A STUDENT MAY FREELY TRANSFER TO A SCHOOL
OF HIS CHOICE IF SPACE IS AVAILABLE, ZONE RESIDENTS HAVING PRIORITY IN
IN CASE OF OVERCROWDING.  NO BUS SERVICE IS PROVIDED.  AFTER ONE YEAR
THE NEGRO ELEMENTARY SCHOOLS REMAINED ALL NEGRO, AND 118 NEGRO PUPILS
WERE SCATTERED AMONG FOUR FORMERLY ALL-WHITE SCHOOLS.  PETITIONERS
MOVED FOR FURTHER RELIEF AND THE DISTRICT COURT HELD THE PLAN HAD BEEN
ADMINISTERED DISCRIMINATORILY.  IN THE SAME PROCEEDING THE BOARD FILED
ITS PROPOSED ZONES FOR THE THREE JUNIOR HIGH SCHOOLS, TO WHICH
PETITIONERS OBJECTED ON THE GROUNDS THAT THE ZONES WERE RACIALLY
GERRYMANDERED AND THAT THE PLAN WAS INADEQUATE TO REORGANIZE THE SYSTEM
ON A NONRACIAL BASIS.  PETITIONERS URGED THAT THE BOARD BE REQUIRED TO
USE A "FEEDER SYSTEM," WHEREBY EACH JUNIOR HIGH WOULD DRAW ITS STUDENTS
FROM SPECIFIC ELEMENTARY SCHOOLS.  THE DISTRICT COURT HELD THAT
PETITIONERS HAD NOT SUSTAINED THE ALLEGATIONS THAT THE ZONES WERE
GERRYMANDERED AND CONCLUDED THAT "THERE IS NO CONSTITUTIONAL
REQUIREMENT" THAT THE "FEEDER SYSTEM" BE ADOPTED.  THE COURT OF APPEALS
AFFIRMED, EXCEPT ON THE ISSUE OF FACULTY SEGREGATION.  THREE YEARS
LATER THE NEGRO JUNIOR HIGH, WHICH HAD OVER 80% OF THE NEGRO JUNIOR
HIGH STUDENTS, HAD NO WHITE STUDENTS, ONE "WHITE" JUNIOR HIGH HAD SEVEN
NEGROES OUT OF 819 STUDENTS, AND THE OTHER HAD 349 WHITE AND 135 NEGRO
PUPILS.  HELD: 

1.  THE "FREE-TRANSFER" PLAN CLEARLY DOES NOT MEET RESPONDENT
BOARD'S "AFFIRMATIVE DUTY TO TAKE WHATEVER STEPS MIGHT BE NECESSARY TO
CONVERT TO A UNITARY SYSTEM IN WHICH RACIAL DISCRIMINATION WOULD BE
ELIMINATED ROOT AND BRANCH," GREEN V. COUNTY SCHOOL BOARD, ANTE, AT 437
438, "(RATHER THAN FURTHER THE DISMANTLING OF THE DUAL SYSTEM, THE
("FREE-TRANSFER") PLAN HAS OPERATED SIMPLY TO BURDEN CHILDREN AND THEIR
PARENTS WITH A RESPONSIBLILITY . . . PLACED SQUARELY ON THE SCHOOL
BOARD."  ID., AT 441-442.  P. 458. 

2.  SINCE IT HAS NOT BEEN SHOWN THAT THE "FREE-TRANSFER" PLAN WILL
FURTHER RAHTER THAN DELAY CONVERSION TO A UNITARY, NONRACIAL SYSTEM, IT
IS UNACCEPTABLE, AND THE BOARD MUST FORMULATE A NEW PLAN WHICH PROMISES
REALISTICALLY TO CONVERT PROMPTLY TO A UNITARY, NONDISCRIMINATORY
SCHOOL SYSTEM.  PP. 459-460. 

380 F.2D 955, VACATED IN PART AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS ARGUED WITH NO. 695, GREEN V. COUNTY SCHOOL BOARD OF
NEW KENT COUNTY, ANTE, P. 430, AND NO. 805, RANEY V. BOARD OF EDUCATION
OF THE GOULD SCHOOL DISTRICT, ANTE, P. 443.  THE QUESTION FOR DECISION
IS SIMILAR TO THE QUESTION DECIDED IN THOSE CASES.  HERE, HOWEVER, THE
PRINCIPAL FEATURE OF A DESEGREGATION PLAN-- WHICH CALLS IN QUESTION ITS
ADEQUACY TO EFFECTUATE A TRANSITION TO A RACIALLY NONDISCIMINATORY
SYSTEM IN COMPLIANCE WITH BROWN V. BOARD OF EDUCATION, 349 U.S. 294
(BROWN II)-- IS NOT "FREEDOM OF CHOICE" BUT A VARIANT COMMONLY REFERRED
TO AS "FREE TRANSFER." 

THE RESPONDENT BOARD OF COMMISSIONER IS THE SCHOOL BOARD FOR THE
CITY OF JACKSON, LOCATED IN MIDWESTERN TENNESSEE.  THE SCHOOL DISTRICT,
COINCIDES WITH THE CITY LIMITS.  SOME ONE-THIRD OF THE CITY'S
POPULATION OF 40,000 ARE NEGROES, THE GREAT MAJORITY OF WHOM LIVE IN
THE CITY'S CENTRAL AREA.  THE SCHOOL SYSTEM HAS EIGHT ELEMENTARY
SCHOOLS, THREE JUNIOR HIGH SCHOOLS, AND TWO SENIOR HIGH SCHOOLS.  THERE
ARE 7,650 CHILDREN ENROLLED IN THE SYSTEM'S SCHOOLS, ABOUT 40% OF WHOM,
OVER 3,200, ARE NEGROES. 

IN 1954 TENNESSEE BY LAW REQUIRED RACIAL SEGREGATION IN ITS PUBLIC
SCHOOLS.  ACCORDINGLY, FIVE ELEMENTARY SCHOOLS, TWO JUNIOR HIGH
SCHOOLS, AND ONE SENIOR HIGH SCHOOL WERE OPERATED AS "WHITE" SCHOOLS,
AND THREE ELEMENTARY SCHOOLS, ONE JUNIOR HIGH SCHOOL, AND ONE SENIOR
HIGH SCHOOL WERE OPERATED AS "NEGRO" SCHOOOLS.  RACIAL SEGREGATION
EXTENDED TO ALL ASPECTS OF SCHOOL LIFE INCLUDING FACULTIES AND STAFFS. 

AFTER BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (BROWN I), DECLARED
SUCH STATE-IMPOSED DUAL SYSTEMS UNCONSTITUTIONAL, TENNESSEE ENACTED A
PUPIL PLACEMENT LAW, TENN. CODE SEC. 49-1741 ET SEQ. (1966).  THAT LAW
CONTINUED PREVIOUSLY ENROLLED PUPILS IN THEIR ASSIGNED SCHOOLS AND
VESTED LOCAL SCHOOL BOARDS WITH THE EXCLUSIVE AUTHORITY TO APPROVE
ASSIGNMENT AND TRANSFER REQUESTS.  NO WHITE CHILDREN ENROLLED IN ANY
"NEGRO" SCHOOL UNDER THE STATUTE AND THE RESPONDENT BOARD GRANTED ONLY
SEVEN APPLICATIONS OF NEGRO CHILDREN TO ENROLL IN "WHITE" SCHOOLS,
THREE IN 1961 AND FOUR IN 1962.  IN MARCH 1962 THE COURT OF APPEALS FOR
THE SIXTH CIRCUIT HELD THAT THE PUPIL PLACEMENT LAW WAS INADEQUATE "AS
A PLAN TO CONVERT A BIRACIAL SYSTEM INTO A NONRACIAL ONE."  NORTHCROSS
V. BOARD OF EDUCATION OF CITY OF MEPHIS, 302 F.2D 818, 821. 

IN JANUARY 1963 PETITIONERS BROUGHT THIS ACTION IN THE DISTRICT
COURT FOR THE WESTERN DISTRICT OF TENNESSEE.  THE COMPLAINT SOUGHT A
DECLARATORY JUDGMENT THAT RESPONDENT WAS OPERATING A COMPULSORY
RACIALLY SEGREGATED SCHOOL SYSTEM, INJUNCTIVE RELIEF AGAINST THE
CONTINUED MAINTENANCE OF THAT SYSTEM, AN ORDER DIRECTING THE ADMISSION
TO NAMED "WHITE" SCHOOLS OF THE PLAINTIFF NEGRO SCHOOL CHILDREN, AND AN
ORDER REQUIRING RESPONDENT BOARD TO FORMULATE A DESEGREGATION PLAN. 
THE DISTRICT COURT ORDERED THE BOARD TO ENROLL THE CHILDREN IN THE
SCHOOLS IN QUESTION AND DIRECTED THE BOARD TO FORMULATE AND FILE A
DESEGREGATION PLAN.  A PLAN WAS DULY FILED AND, AFTER MODIFICATIONS
DIRECTED BY THE COURT WERE INCORPORATED, THE PLAN WAS APPROVED IN
AUGUST 1963 TO BE EFFECTIVE IMMEDIATELY IN THE ELEMENTARY SCHOOLS AND
TO BE GRADUALLY EXTENDED OVER A FOUR-YEAR PERIOD TO THE JUNIOR HIGH
SCHOOLS AND SENIOR HIGH SCHOOLS.  221 F.SUPP.  968. 

THE MODIFIED PLAN PROVIDES FOR THE AUTOMATIC ASSIGNMENT OF PUPILS
LIVING WITHIN ATTENDANCE ZONES DRAWN BY THE BOARD OR SCHOOL OFFICIALS
ALONG GEOGRAPHIC OR "NATURAL" BOUNDARIES AND "ACCORDING TO THE CAPACITY
AND FACILITIES OF THE (SCHOOL) BUILDINGS . . ."  WITHIN THE ZONES. 
ID., AT 974.  HOWEVER, THE PLAN ALSO HAS THE "FREE-TRANSFER" PROVISION
WHICH WAS ULTIMATELY TO BRING THIS CASE TO THIS COURT:  ANY CHILD,
AFTER HE HAS COMPLIED WITH THE REQUIREMENT THAT HE REGISTER ANNUALLY IN
HIS ASSIGNED SCHOOL IN HIS ATTENDANCE ZONE, MAY FREELY TRANSFER TO
ANOTHER SCHOOL OF HIS CHOICE IF SPACE IS AVAILABLE, ZONE RESIDENTS
HAVING PRIORITY IN CASES OF OVERCROWDING.  STUDENTS MUST PROVIDE THEIR
OWN TRANSPORTATION; THE SCHOOL SYSTEM DOES NOT OEPRATE SCHOOL BUSES. 

BY ITS TERMS THE "FREE-TRANSFER" PLAN WAS FIRST APLIED IN THE
ELEMENTARY SCHOOLS.  AFTER ONE YEAR OF OPERATION PETITIONERS, JOINED BY
27 OTHER NEGRO SCHOOL CHILDREN, MOVED IN SEPTEMBER 1964 FOR FURTHER
RELIEF IN THE DISTRICT COURT, ALLEGING RESPONDENT HAD ADMINISTERED THE
PLAN IN A RACIALLY DISCRIMINATORY MANNER.  AT THAT TIME, THE THREE
NEGRO ELEMENTARY SCHOOLS REMAINED ALL NEGRO; AND 118 NEGRO PUPILS WERE
SCATTERED AMONG FOUR OF THE FIVE FORMERLY ALL-WHITE ELEMENTARY
SCHOOLS.  AFTER HEARING EVIDENCE, THE DISTRICT COURT FOUND THAT IN TWO
RESPECTS THE BOARD HAD INDEED ADMINISTERED THE PLAN IN A DISCRIMINATORY
FASHION.  FIRST, IT HAD SYSTEMATICALLY DENIED NEGRO CHILDREN--
SPECIFICALLY THE 27 INTERVENORS-- THE RIGHT TO TRANSFER FROM THEIR ALL
NEGRO ZONE SCHOOLS TO SCHOOLS WHERE WHITE STUDENTS WERE IN THE
MAJORITY, ALTHOUGH WHITE STUDENTS SEEKING TRANSFERS FROM NEGRO SCHOOLS
TO WHITE SCHOOLS HAD BEEN ALLOWED TO TRANSFER.  THE COURT HELD THIS TO
BE A CONSTITUTIONAL VIOLATION, SEE GOSS V. BOARD OF EDUCATION, 373 U.S.
683, AS WELL AS A VIOLATION OF THE TERMS OF THE PLAN ITSELF.  244
F.SUPP.  353, 359.  SECOND, THE COURT FOUND THAT THE BOARD, IN DRAWING
THE LINES OF THE GEOGRAPHIC ATTENDANCE ZONES, HAD GERRYMANDERED THREE
ELEMENTARY SCHOOL ZONES TO EXCLUDE NEGRO RESIDENTAIAL AREAS FROM WHITE
SCHOOL ZONES AND TO INCLUDE THOSE AREAS IN ZONES OF NEGRO SCHOOLS
LOCATED FARTHER AWAY.  ID., AT 361-362. 

IN THE SAME 1964 PROCEEDING THE BOARD FILED WITH THE COURT ITS
PROPOSED ZONES FOR THE THREE JUNIOR HIGH SCHOOLS, JACKSON AND TIGRETT,
THE "WHITE" JUNIOR HIGH SCHOOLS, AND MERRY, THE "NEGRO" JUNIOR HIGH
SCHOOL.  AS OF THE 1964 SCHOOL YEAR THE THREE SCHOOLS RETAINED THEIR
RACIAL IDENTITIES, ALTHOUGH JACKSON DID HAVE ONE NEGRO CHILD AMONG ITS
OTHERWISE ALL-WHITE STUDENT BODY.  THE FACULTIES AND STAFFS OF THE
RESPECTIVE SCHOOLS WERE ALSO SEGREGATED.  PETITIONERS OBJECTED TO THE
PROPOSED ZONES ON TWO GROUNDS, ARGUING FIRST THAT THEY WERE RACIALLY
GERRYMANDERED BECAUSE SO DRAWN AS TO ASSIGN NEGRO CHILDREN TO THE
"NEGRO" MERRYSCHOOL AND WHITE CHILDREN TO THE "WHITE" JACKSON AND
TIGRETT SCHOOLS, AND ALTERNATIVELY THAT THE PLAN WAS IN ANY EVENT
INADEQUATE TO REORGANIZE THE SYSTEM ON A NONRACIAL BASIS.  PETITIONERS,
THROUGH EXPERT WITNESSES, URGED THAT THE BOARD BE REQUIRED TO ADOPT A
"FEEDER SYSTEM," A COMMONLY USED METHOD OF ASSIGNING STUDENTS WHEREBY
EACH JUNIOR HIGH SCHOOL WOULD DRAW ITS STUDENTS FROM SPECIFIED
ELEMENTARY SCHOOLS.  THE GROUPINGS COULD BE MADE SO AS TO ASSURE
RACIALLY INTEGRATED STUDENT BODIES IN ALL THREE JUNIOR HIGH SCHOOLS,
WITH DUE REGARD FOR EDUCATIONAL AND ADMINISTRATIVE CONSIDERATIONS SUCH
AS BUILDING CAPACITY AND PROXIMITY OF STUDENTS TO THE SCHOOLS. 

THE DISTRICT COURT HELD THAT PETITIONERS HAD NOT SUSTAINED THEIR
ALLEGATIONS THAT THE PROPOSED JUNIOR HIGH SCHOOL ATTENDANCE ZONES WERE
GERRYMANDERED, SAYING 

"TIGRETT (WHITE) IS LOCATED IN THE WESTERN SECTION, MERRY (NEGRO) IS
LOCATED IN THE CENTRAL SECTION AND JACKSON (WHITE) IS LOCATED IN THE
EASTERN SECTION.  THE ZONES PROPOSED BY THE DEFENDANTS WOULD,
GENERALLY, ALLOCATE THE WESTERN SECTION TO TIGRETT, THE CENTRAL SECTION
TO MERRY, AND THE EASTERN SECTION TO JACKSON.  THE BOUNDARIES FOLLOW A
MAJOR STREETS OR HIGHWAYS AND RAILROADS.  ACCORDING TO THE SCHOOL
POPULATION MAPS, THERE ARE A CONSIDERABLE NUMBER OF NEGRO PUPILS IN THE
SOUTHERN PART OF THE TIGRETT ZONE, A CONSIDERABLE NUMBER OF WHITE
PUPILS IN THE MIDDLE AND NORTHERN PARTS OF THE MERRY ZONE, AND A
CONSIDERABLE NUMBER OF NEGRO PUPILS IN THE SOUTHERN PART OF THE JACKSON
ZONE.  THE LOCATION OF THE THREE SCHOOLS IN AN APPROXIMATE EAST-WEST
LINE MAKES IT INEVITABLE THAT THE THREE ZONES DIVIDE THE CITY IN THREE
PARTS FROM NORTH TO SOUTH.  WHILE IT APPEARS THAT PROXIMITY OF PUPILS
AND NATURAL BOUNDARIES ARE NOT AS IMPORTANT IN ZONING FOR JUNIOR HIGHS
AS IN ZONING FOR ELEMENTARY SCHOOLS, IT DOES NOT APPEAR THAT NEGRO
PUPILS WILL BE DISCRIMINATED AGAINST."  244 F.SUPP.,AT 362.  AS FOR THE
RECOMMENDED "FEEDER SYSTEM," THE DISTRICT COURT CONCLUDED SIMPLY THA
"THERE IS NO CONSTITUTIONAL REQUIREMENT THAT THIS PARTICULAR SYSTEM BE
ADOPTED."  IBID.  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED
EXCEPT ON AN ISSUE OF FACULTY DESEGREGATION, AS TO WHICH THE CASE WAS
REMANDED FOR FURTHER PROCEEDINGS.  380 F.2D 955.  WE GRANTED
CERTIORARI, 389 U.S. 1033, AND SET THE CASE FOR ORAL ARGUMENT
IMMEDIATELY FOLLOWING GREEN V. COUNTY SCHOOL BOARD, SUPRA.  ALTHOUGH
THE CASE PRESENTED BY THE PETITION FOR CERTIORARI CONCERNS ONLY THE
JUNIOR HIGH SCHOOLS, THE PLAN IN ITS APPLICATION TO ELEMENTARY AND
SENIOR HIGH SCHOOLS IS ALSO NECESSARILY IMPLICATED SINCE THE RIGHT OF
"FREE TRANSFER" EXTENDS TO PUPILS AT ALL LEVELS. 

THE PRINCIPLES GOVERNING DETERMINATION OF THE ADEQUACY OF THE PLAN
AS COMPLIANCE WITH THE BOARD'S RESPONSIBILITY TO EFFECTUATE A
TRANSITION TO A RACIALLY NONDISCRIMINATORY SYSTEM ARE THOSE ANNOUNCED
TODAY IN GREEN V. COUNTY SCHOOL BOARD, SUPRA.  TESTED BY THOSE
PRINCIPLES THE PLAN IS CLEARLY INADEQUATE.  THREE SCHOOL YEARS HAVE
FOLLOWED THE DISTRICT COURT'S APPROVAL OF THE ATTENDANCE ZONES FOR THE
JUNIOR HIGH SCHOOLS.  YET MERRY JUNIOR HIGH SCHOOL WAS STILL COMPLETELY
A "NEGRO" SCHOOL IN THE 1967-1968 SCHOOL YEAR, ENROLLING SOME 640 NEGRO
PUPILS, OR OVER 80% OF THE SYSTEM'S NEGRO JUNIOR HIGH SCHOOL STUDENTS. 
NOT ONE OF THE "CONSIDERABLE NUMBER OF WHITE PUPILS IN THE MIDDLE AND
NORTHERN PARTS OF THE MERRY ZONE"  ASSIGNED THERE UNDER THE ATTENDANCE
ZONE ASPECT OF THE PLAN CHOSE TO STAY AT MERRY.  EVERY ONE EXERCISED
HIS OPTION TO TRANSFER OUT OF THE "NEGRO" SCHOOL.  THE "WHITE" TIGRETT
SCHOOL SEEMINGLY HAD THE SAME EXPERIENCE IN REVERSE.  OF THE
"CONSIDERABLE NUMBER OF NEGRO PUPILS IN THE SOUTHERN PART OF THE
TIGRETT ZONE" MENTIONED BY THE DISTRICT COURT, ONLY SEVEN ARE ENROLLED
IN THE STUDENT BODY OF 819; APPARENTLY ALL OTHER NEGRO CHILDREN
ASSIGNED TO TIGRETT CHOSE TO GO ELSEWHERE.  ONLY THE "WHITE" JACKSON
SCHOOL PRESENTS A DIFFERENT PICTURE; THERE, 349 WHITE CHILDREN AND 135
NEGRO CHILDREN COMPOSE THE STUDENT BODY.  HOW MANY OF THE NEGRO
CHILDREN TRANSFERRED IN FROM THE "WHITE" TIGRETT SCHOOL DOES NOT
APPEAR.  THE EXPERIENCE IN THE JUNIOR HIGH SCHOOLS MIRRORS THAT OF THE
ELEMENTARY SCHOOLS.  THUS THE THREE ELEMENTARY SCHOOLS THAT WERE
OPERATED AS NEGRO SCHOOLS IN 1954 AND CONTINUED AS SUCH UNTIL 1963 ARE
STILL ATTENDED ONLY BY NEGROES.  THE FIVE "WHITE"  SCHOOLS ALL HAVE
SOME NEGRO CHILDREN ENROLLED, FROM AS FEW AS THREE (IN A STUDENT BODY
OF 781) TO AS MANY AS 160 (IN A STUDENT BODY OF 682). 

THIS EXPERIENCE WITH "FREE TRANSFER" WAS ACCURATELY PREDICTED BY THE
DISTRICT COURT AS EARLY AS 1963: 

     "IN TERMS OF NUMBERS . . . THE RATIO NEGRO TO WHITE PUPILS IS

  APPROXIMATELY 40-60.  THIS FIGURE IS, HOWEVER, SOMEWHAT

  MISLEADING AS A MEASURE OF THE EXTENT TO WHICH INTEGRATION WILL

  ACTUALLY OCCUR UNDER BE PROPOSED PLAN.  BECAUSE THE HOME OF NEGRO

  CHILDREN ARE CONCENTRATED IN CERTAIN AREAS OF THE CITY, A PLAN OF

  UNITARY ZONING, EVEN IF PREPARED WITHOUT CONSIDERATION OF RACE,

  WILL RESULT IN A CONCENTRATION OF NEGRO CHILDREN IN THE ZONES OF

  HERETOFORE 'NEGRO' SCHOOLS AND WHITE CHILDREN IN THE ZONES OF

  HERETOFORE 'WHITE' SCHOOLS.  MOREOVER, THIS TENDENCY OF

  CONCENTRATION IN SCHOOLS WILL BE FURTHER ACCENTUATED BY THE

  EXERCISE OF CHOICE OF SCHOOLS . . . ."  221 F.SUPP.,AT 971. 

PLAINLY, THE PLAN DOES NOT MEET RESPONDENT'S "AFFIRMATIVE DUTY TO
TAKE WHATEVER STEPS MIGHT BE NECESSARY TO CONVERT TO A UNITARY SYSTEM
IN WHICH RACIAL DISCRIMINATION WOULD BE ELIMINATED ROOT AND BRANCH." 
GREEN V. COUNTY SCHOOL BOARD, SUPRA, AT 437-438.  ONLY BY DISMANTLING
THE STATE-IMPOSED DUAL SYSTEM CAN THAT END BE ACHIEVED.  AND
MANIFESTLY, THAT END HAS NOT BEEN ACHIEVED HERE NOR DOES THE PLAN
APPROVED BY THE LOWER COURTS FOR THE JUNIOR HIGH SCHOOLS PROMISE
MEANINGFUL PROGRESS TOWARD DOING SO.  "RATHER THAN FURTHER THE
DISMANTLING OF THE DUAL SYSTEM, THE ("FREE TRANSFER") PLAN HAS OPERATED
SIMPLY TO BURDEN CHILDREN AND THEIR PARENTS WITH A RESPONSIBILITY WHICH
BROWN II PLACED SQUARELY ON THE SCHOOL BOARD."  GREEN V. COUNTY SCHOOL
BOARD, SUPRA, AT 441-442.  THAT THE BOARD HAS CHOSEN TO ADOPT A METHOD
ACHIEVING MINIMAL DISRUPTION OF THE OLD PATTERN IS EVIDENT FROM ITS
LONG DELAY IN MAKING ANY EFFORT WHATSOEVER TO DESEGREGATE, AND THE
DELIBERATELY DISCRIMINATORY MANNER IN WHICH THE BOARD ADMINISTERED THE
PLAN UNTIL CHECKED BY THE DISTRICT COURT. 

THE DISTRICT COURT APPROVED THE JUNIOR HIGH SCHOOL ATTENDANCE-ZONE
LINES IN THE VIEW THAT AS DRAWN THEY ASSIGNED STUDENTS TO THE THREE
SCHOOLS IN A WAY THAT WAS CAPABLE OF PRODUCING MEANINGFUL DESEGREGATION
OF ALL THREE SCHOOLS.  BUT THE "FREE-TRANSFER" OPTION HAS PERMITTED THE
"CONSIDERABLE NUMBER" OF WHITE OR NEGRO STUDENTS IN AT LEAST TWO OF THE
ZONES TO RETURN, AT THE IMPLICIT INVITATION OF THE BOARD, TO THE
COMFORTABLE SECURITY OF THE OLD, ESTABLISHED DISCRIMINATORY PATTERN. 
LIKE THE TRANSFER PROVISIONS HELD INVLAID IN GOSS V. BOARD OF
EDUCATION, 373 U.S. 683, 686, "(IT IS READILY APPARENT THAT THE
TRANSFER (PROVISION) LENDS ITSELF TO PERPETUATION OF SEGREGATION." 
WHILE WE THERE INDICATED THAT "FREE-TRANSFER" PLANS UNDER SOME
CIRCUMSTANCES MIGHT BE VALID, WE EXPLICITLY STATED THAT "NO OFFICIAL
TRANSFER PLAN OR PROVISION MAY STAND UNDER THE FOURTEENTH AMENDMENT." 
ID., AT 689.  SO IT IS HERE; NO ATTEMPT HAS BEEN MADE TO JUSTIFY THE
TRANSFER PROVISION AS A DEVICE DESIGNED TO MEET "LEGITIMATE LOCAL
PROBLEMS," IBID.; RATHER IT PATENTLY OPERATES AS A DEVICE TO ALLOW
RESEGREGATION OF THE RACES TO THE EXTENT DESEGREGATION WOULD BE
ACHIEVED BY GEOGRAPHICALLY DRAWN ZONES.  RESPONDENT'S ARGUMENT IN THIS
COURT REVEALS ITS PURPOSE.  WE ARE FRANKLY TOLD IN THE BRIEF THAT WHITE
STUDENTS WILL FLEE THE SCHOOL SYSTEM ALTOGETHER.  "BUT IT SHOULD GO
WITHOUT SAYING THAT THE VITALITY OF THESE CONSTITUTIONAL PRINCIPLES
CANNOT BE ALLOWED TO YIELD SIMPLY BECAUSE OF DISAGREEMENT WITH THEM." 
BROWN II, AT 300. 

WE DO NOT HOLD THAT "FREE TRANSFER" CAN HAVE NO PLACE IN
DESEGREGATION PLAN.  BUT LIKE "FREEDOM OF CHOICE," IF IT CANNOT BE
SHOWN THAT SUCH A PLAN WILL FURTHER RATHER THAN DELAY CONVERSION TO A
UNITARY, NONRACIAL, NONDISCRIMINATORY SCHOOL SYSTEM, IT MUST BE HELD
UNACCEPTABLE.  SEE GREEN V. COUNTY SCHOOL BOARD, SUPRA, AT 439-441. 

WE CONCLUDE, THEREFORE, THAT THE BOARD "MUST BE REQUIRED TO
FORMULATE A NEW PLAN AND, IN LIGHT OF OTHER COURSES WHICH APPEAR OPEN
TO THE BOARD, . . . FASHION STEPS WHICH PROMISE REALISTICALLY TO
CONVERT PROMPTLY TO A SYSTEM WITHOUT A 'WHITE' SCHOOL AND A 'NEGRO'
SCHOOL, BUT JUST SCHOOLS."  ID., AT 442.  /1/ 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED INSOFAR AS IT
AFFIRMED THE DISTRICT COURT'S APPROVAL OF THE PLAN IN ITS APPLICATION
TO THE JUNIONR HIGH SCHOOLS, AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION AND WITH OUR OPINION IN GREEN
V. COUNTY SCHOOL BOARD, SUPRA.

              IT IS SO ORDERED. 

/1/  WE IMPLY NO AGREEMENT WITH THE DISTRICT COURT'S CONCLUSION THAT
UNDER THE PROPOSED ATTENDANCE ZONES FOR JUNIOR HIGH SCHOOLS "IT DOES
NOT APPEAR THAT NEGRO PUPILS WILL BE DISCRIMINATED AGAINST."  WE NOTE
ALSO THAT ON THE RECORD AS IT NOW STANDS, IT APPEARS THAT PETITIONERS'
RECOMMENDED "FEEDER SYSTEM," THE FEASIBILITY OF WHICH RESPONDENT DID
NOT CHALLENGE IN THE DISTRICT COURT, IS AN EFFECTIVE ALTERNATIVE
REASONABLY AVAILABLE TO RESPONDENT TO ABOLISH THE DUAL SYSTEM IN THE
JUNIOR HIGH SCHOOLS. 

JAMES M. NABRIT III AND JACK GREENBERG ARGUED THE CAUSE FOR
PETITIONERS.  WITH THEM ON THE BRIEF WERE MICHAEL METLSNER, AVON N.
WILLIAMS, JR., AND Z. ALEXANDER LLOBY. 

RUSSELL RICE, SR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 

LOUIS F. CLAIBORNE ARGUED THE CAUSE FOR THE UNITED STATES, AS AMICUS
CURIAE.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD,
ASSISTANT ATTORNEY GENERAL POLLAK, LAWRENCE G. WALLACE, AND BRIAN K.
LANDSBERG. 
..END :




WORLD AIRWAYS V. PAN AMERICAN, 391 U.S. 461 


       WORLD AIRWAYS, INC., ET AL. V. PAN AMERICAN WORLD AIRWAYS,

           INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 800.  ARGUED APRIL 29-30, 1968.-- DECIDED MAY 27,
1968. 

           /1/ 


380 F.2D 770, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

/1/  TOGETHER WITH NO. 946, CIVIL AERONAUTICS BOARD V. PAN AMERICAN
WORLD AIRWAYS, INC., ET AL., AND NO.969, AMERICAN SOCIETY OF TRAVEL
AGENTS, INC. V. PAN AMERICAN WORLD AIRWAYS, INC., ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 

ASSISTANT ATTORNEY GENERAL WOZENCRAFT ARGUED THE CAUSE FOR
PETITIONER IN NO. 946.  WITH HIM ON THE BRIEF WERE SOLICTOR GENERAL
GRISWOLD, ASSISTANT ATTORNEY GENERAL TURNER, HOWARD E. SHAPIRO, JOSEPH
B. GOLDMAN, O. D. OZMENT, WARREN L. SHARFMAN, AND ROBERT L. TOOMEY. 
JERROLD SCOUTT, JR., ARGUED THE CAUSE FOR PETITIONERS IN NOS. 800 AND
969.  WITH HIM ON THE BRIEF FOR PETITIONERS IN NO. 800 WERE LEONARD N.
BEBCHICK, GEORGE BERKOWITZ, STEPHEN D. POTTS, CLAYTON L. BURWELL, AND
FREDERICK BERNAYS WIENER, CHARLES A. HOBBS AND GLEN A. WILKINSON FILED
BRIEFS FOR PETITIONER IN NO. 969. 

EDWARD R. NEAHER ARGUED THE CAUSE FOR RESPONDENTS IN ALL CASES. 
WITH HIM ON THE BRIEF WERE CARL S. ROWE AND GERTRUDE S. ROSENTHAL. 
..END :








RABECK V. NEW YORK, 391 U.S. 462 


       RABECK V. NEW YORK. 

        APPEAL FROM THE APPELLATE TERM OF THE SUPREME COURT OF NEW

           YORK, FIRST JUDICIAL DEPARTMENT. 

        NO. 611.  DECIDED MAY 27, 1968. 


FORMER SEC. 484-I OF THE NEW YORK PENAL LAW, WHICH PROHIBITED THE
SALE OF "MAGAZINES . . . WHICH WOULD APPEAL TO THE LUST OF PERSONS
UNDER THE AGE OF EIGHTEEN YEARS OR TO THEIR CURIOSITY AS TO SEX OR TO
THE ANATOMICAL DIFFERENCES BETWEEN THE SEXES," IS UNCONSTITUTIONALLY
VAGUE AND IT IS NO ANSWER TO SAY THAT IT WAS ADOPTED FOR THE SALUTARY
PURPOSE OF PROTECTING CHILDREN. 

REVERSED. 

PER CURIAM. 

APPELLANT, IN SEEKING REVERSAL OF HIS CONVICTION FOR SELLING
"GIRLIE" MAGAZINES TO A MINOR UNDER 18 YEARS OF AGE IN VIOLATION OF
FORMER SEC. 484-I, NEW YORK PENAL LAW, /1/  ARGUES AMONG OTHER GROUNDS
THAT THE STATUTE IS IMPERMISSIBLY VAGUE.  WE AGREE.  WHILE WE REJECTED
A LIKE CLAIM AS TO SEC. 484-H IN GINSBERG V. NEW YORK, 390 U.S. 629,
SEC. 484-I IN PART PROHIBITED THE SALE OF "ANY . . . MAGAZINES . . .
WHICH WOULD APPEAL TO THE LUST OF PERSONS UNDER THE AGE OF EIGHTEEN
YEARS OR TO THEIR CURIOSITY AS TO SEX OR TO THE ANATOMICAL DIFFERENCES
BETWEEN THE SEXES . . . ."  THAT STANDARD IN OUR VIEW IS
UNCONSTITUTIONALLY VAGUE.  "NOR IS IT AN ANSWER TO AN ARGUMENT THAT A
PARTICULAR REGULATION OF EXPRESSION IS VAGUE TO SAY THAT IT WAS ADOPTED
FOR THE SALUTARY PURPOSE OF PROTECTING CHILDREN.  THE PERMISSIBLE
EXTENT OF VAGUENESS IS NOT DIRECTLY PROPORTIONAL TO, OR A FUNCTION OF,
THE EXTENT OF THE POWER TO REGULATE OR CONTROL EXPRESSION WITH RESPECT
TO CHILDREN."  INTERSTATE CIRCUIT, INC. V. CITY OF DALLAS, 390 U.S.
676, 689. 

REVERSED. 

/1/  SECTION 484-I WAS REPEALED BY N.Y. LAWS, 1967, C. 791.  SEE
GINSBERG V. NEW YORK, 390 U.S. 629, 631-632, N.1. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS, WOULD
REVERSE FOR THE REASONS STATED IN HIS DISSENTING OPINION IN GINSBERG V.
NEW YORK, 390 U.S. 629, 650. 

MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT OF THE STATE COURT ON
THE PREMISES STATED IN HIS SEPARATE OPINION IN INTERSTATE CIRCUIT, INC.
V. CITY OF DALLAS, 390 U.S. 676, 704.  IN ADDITION, HE CONSIDERS IT A
PARTICULARLY FRUITLESS JUDICIAL ACT TO STRIKE DOWN ON THE SCORE OF
VAGUENESS A STATE STATUTE WHICH HAS ALREADY BEEN REPEALED. 

STANLEY FLEISHMAN, OSMOND K. FRAENKEL, AND SAM ROSENWEIN FOR
APPELLANT. 

ISIDORE DOLLINGER AND DANIEL J. SULLIVAN FOR APPELLEE. 
..END :
















GARRISON V. PATTERSON, 391 U.S. 464 


       GARRISON V. PATTERSON, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT. 

        NO. 791, MISC.  DECIDED MAY 27, 1968. 


PETITIONER, WHO WAS UNDER SENTENCE OF DEATH FOR MURDER, SOUGHT A WRIT
OF HABEAS CORPUS IN THE DISTRICT COURT.  THAT COURT DENIED THE WRIT,
DENIED A CERTIFICATE OF PROBABLE CAUSE TO APPEAL, BUT GRANTED A STAY OF
EXECUTION TO ALLOW FOR AN APPEAL.  PETITIONER FILED WITH THE COURT OF
APPEALS A DOCUMENT STATING THE FORMAL HISTORY OF THE CASE, NOTING ONE
OF THE ISSUES, AND ALLEGING THAT THE PETITION "MERITS FURTHER HEARING
BY THE COURT," WHICH REQUESTED A FURTHER STAY OF EXECUTION, A
CERTIFICATE OF PROBABLE CAUSE, AND LEAVE TO APPEAL IN FORMA PAUPERIS. 
THE NEXT DAY COUNSEL WERE HEARD ORALLY BY A PANEL OF THE COURT IN AN
UNRECORDED HEARING.  THE COURT GRANTED THE STAY OF EXECUTION AND
THEREAFTER, WITHOUT FURTHER ARGUMENT OR SUBMISSIONS, GRANTED THE
CERTIFICATE OF PROBABLE CAUSE AND AFFIRMED THE LOWER COURT'S DENIAL OF
HABEAS CORPUS.  HELD:  WHERE AN APPEAL POSSESSES SUFFICIENT MERIT TO
WARRANT A CERTIFICATE OF PROBABLE CAUSE, APPELLANT MUST BE AFFORDED
ADEQUATE OPPORTUNITY TO ADDRESS THEMERITS, AND IF A SUMMARY PROCEDURE
IS ADOPTED HE MUST BE INFORMED, BY RULE OR OTHERWISE, THAT HIS
OPPORTUNITY WILL OR MAY BE LIMITED. 

CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

ON NOVEMBER 27, 1959, PETITIONER WAS FOUND GUILTY OF FIRST DEGREE
MURDER BY A COLORADO JURY, WHICH FIXED HIS PENALTY AT DEATH.  FOLLOWING
SUBSEQUENT STATE PROCEEDINGS, HE SOUGHT A WRIT OF HABEAS CORPUS IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO.  HE ALLEGED
THAT HE HAD RECEIVED INADEQUATE REPRESENTATION BY APPOINTED TRIAL
COUNSEL, /1/  THAT THE TRIAL COURT HAD NOT PROPERLY DETERMINED THE
VOLUNTARINESS OF CONFESSIONS ADMITTED AGAINST HIM, AND THAT THE
PROCEDURE USED TO DETERMINE HIS SANITY FELL SHORT OF CONSTITUTIONAL
REQUIREMENTS.  ON JUNE 2, 1967, THE DISTRICT COURT DENIED THE WRIT,
DENIED A CERTIFICATE OF PROBABLE CAUSE TO APPEAL, SEE 28 U.S.C. 2253,
BUT GRANTED A STAY OF EXECUTION TO JUNE 16, 1967, TO ALLOW TIME FOR
APPEAL.  THE DISTRICT COURT FILED A WRITTEN OPINION AND ORDER TO THAT
EFFECT ON JUNE 5, 1967. 

THREE DAYS LATER, ON JUNE 8, PETITIONER'S ATTORNEYS FILED WITH THE
COURT OF APPEALS FOR THE TENTH CIRCUIT A THREE-PAGE DOCUMENT REQUESTING
A FURTHER STAY OF EXECUTION, A CERTIFICATE OF PROBABLE CAUSE TO APPEAL,
AND LEAVE TO APPEAL IN FORMA PAUPERIS.  THIS DOCUMENT MERELY STATED THE
FORMAL HISTORY OF THE CASE IN NUMBERED PARAGRAPHS, NOTED ONE OF THE
ISSUES, AND ALLEGED THAT "THIS PETITION MERITS FURTHER HEARING BY THIS
COURT."  ON THE FOLLOWING DAY, JUNE 9, COUNSEL WERE HEARD ORALLY BY A
PANEL OF THE COURT OF APPEALS.  THE HEARING WAS NOT RECORDED.  THE
COURT GRANTED A FURTHER STAY OF EXECUTION.  ON JUNE 18, WITHOUT FURTHER
ARGUMENT OR SUBMISSIONS BY COUNSEL, THE COURT OF APPEALS ISSUED AN
ORDER GRANTING THE CERTIFICATE OF PROBABLE CAUSE, AND, IN THE NEXT
SENTENCE, AFFIRMING THE DISTRICT COURT'S DENIAL OF HABEAS CORPUS. 
PETITIONER SOUGHT A WRIT OF CERTIORARI IN THIS COURT, ALLEGING THAT THE
PROCEDURE FOLLOWED BY THE COURT OF APPEALS VIOLATED THE STANDARDS
ESTABLISHED BY, OR IMPLICIT IN, NOWAKOWSKI V. MARONEY, 386 U.S. 542. 

WE GRANT THE WRIT, VACATE THEJUDGMENT OF THE COURT OF APPEALS, AND
REMAND TO THAT COURT FOR FURTHER APPROPRIATE PROCEEDINGS.  NOWAKOWSKI,
SUPRA, HELD THAT WHEN A DISTRICT COURT GRANTS A CERTIFICATE OF PROBABLE
CAUSE THE COURT OF APPEALS MUST "PROCEED TO A DISPOSITION OF THE APPEAL
IN ACCORD WITH ITS ORDINARY PROCEDURE."  386 U.S.,AT 543.  THE
PRINCIPLE UNDERLYING THAT DECISION WAS THAT IF AN APPELLANT PERSUADES
AN APPROPRIATE TRIBUNAL THAT PROBABLE CAUSE FOR AN APPEAL EXISTS, HE
MUST THEN BE AFFORDED AN OPPORTUNITY TO ADDRESS THE UNDERLYING MERITS. 
THIS PRINCIPLE IS NO LESS APPLICABLE WHEN A COURT OF APPEALS, HAVING
RECEIVED SUBMISSIONS RELATING ONLY TO PROBABLE CAUSE AND OTHER
PROCEDURAL MATTERS, DECIDES THAT PROBABLE CAUSE INDEED EXISTS. 

AS WE ONLY RECENTLY NOTED IN CARAFAS V. LAVALLEE, ANTE, P. 234, AT
242, NOWAKOWSKI DOES NOT PREVENT THE COURTS OF APPEALS FROM ADOPTING
APPROPRIATE SUMMARY PROCEDURES FOR FINAL DISPOSITION OF SUCH CASES. 
CARAFAS REQUIRES THE COURTS OF APPEALS TO GIVE SUFFICIENT INDICATION
THAT AN APPEAL HAS BEEN DISPOSED OF ON THE MERITS, BUT NOTHING IN
NOWAKOWSKI AND NOTHING WE SAY HERE PREVENTS THE COURTS OF APPEALS FROM
CONSIDERING THE QUESTIONS OF PROBABLE CAUSE AND THE MERITS TOGETHER,
AND NOTHING SAID THERE OR HERE NECESSARILY REQUIRES FULL BRIEFING AND
ORAL ARGUMENT IN EVERY INSTANCE IN WHICH A CERTIFICATE IS GRANTED.  WE
HOLD ONLY THAT WHERE AN APPEAL POSSESSES SUFFICIENT MERIT TO WARRANT A
CERTIFICATE, THE APPELLANT MUST BE AFFORDED ADEQUATE OPPORTUNITY TO
ADDRESS THE MERITS, AND THAT IF A SUMMARY PROCEDURE IS ADOPTED THE
APPELLANT MUST BE INFORMED, BY RULE OR OTHERWISE, THAT HIS OPPORTUNITY
WILL OR MAY BE LIMITED.  /2/  WITHIN THIS GENERAL FRAMEWORK, THE
PROMULGATION OF SPECIFIC PROCEDURES IS A MATTER FOR THE COURTS OF
APPEALS. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND PETITION FOR A WRIT OF
CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF APPEALS AFFIRMING
THE JUDGMENT OF THE DISTRICT COURT IS VACATED, AND THE CASE IS REMANDED
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  THE STAY OF
EXECUTION HERETOFORE GRANTED BY MR. JUSTICE WHITE IS CONTINUED IN FORCE
PENDING THE DISPOSITION OF THE MATTER BY THE COURT OF APPEALS, ON
CONDITION THAT THE PETITIONER PROCEED WITH DUE DILIGENCE IN THAT
COURT. 

IT IS SO ORDERED. 

/1/  PETITIONER'S STATEMENT OF FACTS ALLEGES NOT ONLY THAT TRIAL
COUNSEL WAS GUILTY OF EGREGIOUS NEGLECT AT TRIAL BUT ALSO THAT THERE
WERE UNDERSTANDABLE REASONS:  THERE IS SAID TO BE EVIDENCE THAT DURING
THE PERIOD OF THE TRIAL THE ATTORNEY'S ATTENTION WAS PREOCCUPIED WITH
OTHER MATTERS, TO WIT, THE COMMISSION OF A SERIES OF FELONIES. 

/2/  IN AN EFFORT TO DETERMINE WHETHER THE MERITS HAD BEEN
ADDRESSED, AND WHETHER PETITIONER WAS ON NOTICE THAT THEY SHOULD BE
ADDRESSED IN FULL, AT THE UNRECORDED HEARING ON JUNE 9, THIS COURT
SOLICITED FURTHER SUBMISSIONS FROM THE PARTIES IN THIS CASE. 
PETITIONER REPLIED THAT THE MERITS HAD BEEN RAISED ONLY TO THE EXTENT
NECESSARY TO SHOW GROUNDS FOR A CERTIFICATE OF PROBABLE CAUSE. 
RESPONDENT REPLIED THAT PETITIONER WAS GIVEN ALL THE TIME HE WANTED. 
RESPONDENT WAS UNABLE, HOWEVER, TO POINT TO ANY RULE OR DECISION
FOREWARNING AN APPLICANT FOR A CERTIFICATE OF PROBABLE CAUSE TO MAKE
HIS ARGUMENT ON THE UNDERLYING ISSUES IN FULL. 

E. BARRETT PRETTYMAN, JR., AND ISAAC MELLMAN FOR PETITIONER. 

DUKE W. DUNBAR, ATTORNEY GENERAL OF COLORADO, FRANK E. HICKEY,
DEPUTY ATTORNEY GENERAL, AND JOHN P. MOORE, ASSISTANT ATTORNEY GENERAL,
FOR RESPONDENT. 
..END :















THEATRES SERVICE CO. V. UNITED STATES, 391 U.S. 468 


       THEATRES SERVICE CO. V. UNITED STATES ET AL.

    APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

          NORTHERN DISTRICT OF GEORGIA. 

        NO. 1267.  DECIDED MAY 27, 1968. 


278 F.SUPP.  7, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

DAVID A. SUTHERLUND AND GUY H. POSTELL FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL TURNER, AND
ROBERT W. GINNANE FOR THE UNITED STATES ET AL., AND PAUL M. DANIELL AND
BILL R. DAVIS FOR DANCE FREIGHT LINES, INC., APPELLEES. 
..END :








NATIONAL BUS TRAFFIC ASSN. V. UNITED STATES, 391 U.S. 468 


       NATIONAL BUS TRAFFIC ASSN., INC., ET AL. V. UNITED STATES ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS. 

        NO. 1312.  DECIDED MAY 27, 1968. 


284 F.SUPP.  270, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

ROBERT J. BERNARD, WARREN A GOFF, DREW L. CARRAWAY, JOHN S.
FESSENDEN, AND RICHARD R. SIGMON FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL TURNER,
HOWARD E. SHAPIRO, AND ROBERT W. GINNANE FOR THE UNITED STATES ET AL.,
AND T. S. CHRISTOPHER FOR ROSENBAUM, APPELLEES. 
..END :




CENTRAL BANK & TRUST CO. V. UNITED STATES, 391 U.S. 469 


       CENTRAL BANK & TRUST CO. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

           DISTRICT OF KENTUCKY. 

        NO. 1269.  DECIDED MAY 27, 1968.  /1/ 


280 F.SUPP.  260, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE WOULD NOTE PROBABLE
JURISDICTION AND SET THESE CASES FOR ORAL ARGUMENT. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

/1/  TOGETHER WITH NO.1270, BOYLE V. UNITED STATES ET AL., ALSO ON
APPEAL FROM THE SAME COURT. 

EARL S. WILSON, EARL W. KINTER, SIDNEY HARRIS, AND GEORGE R. KUCIK
FOR APPELLANT IN NO. 1269, AND MR. WILSON AND FRANK S. GINOCCHIO FOR
APPELLANT IN NO. 1270. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL TURNER, AND
HOWARD E. SHAPIRO FOR THE UNITED STATES, AND PAUL A. PORTER AND VICTOR
H. KRAMER FOR FIRST NATIONAL BANK & TRUST CO. ET AL., APPELLEES IN BOTH
CASES. 
..END :

















ROSS V. CALIFORNIA, 391 U.S. 470 


       ROSS V. CALIFORNIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           CALIFORNIA. 

        NO. 798, MISC.  DECIDED MAY 27, 1968. 


CERTIORARI GRANTED; 67 CAL.2D 64, 429 P.2D 606, REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
CHAPMAN V. CALIFORNIA, 386 U.S.18, AND ANDERSON V. NELSON, 390 U.S.
523. 

MR. JUSTICE BLACK IS OF THE OPINION THAT CERTIORARI SHOULD BE
DENIED. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, WILLIAM E. JAMES,
ASSISTANT ATTORNEY GENERAL, AND WALTER R. JONES, DEPUTY ATTORNEY
GENERAL FOR RESPONDENT. 
..END :




PEYTON V. ROWE, 391 U.S. 54 


       PEYTON, PENITENTIARY SUPERINTENDENT V. ROWE ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT. 

        NO. 802.  ARGUED MARCH 27, 1968.-- DECIDED MAY 20, 1968. 


RESPONDENTS WHO ARE INCARCERATED UNDER CONSECUTIVE STATE PRISON
SENTENCES, HAVE ATTACKED AS UNCONSTITUTIONAL SENTENCES WHICH THEY HAVE
NOT BEGUN TO SERVE, IN PETITIONS FOR WRITS OF HABEAS CORPUS WHICH THEY
HAVE RESPECTIVELY FILED IN DISTRICT COURTS UNDER 28 U.S.C. 2241(C)(3). 
THAT PROVISION SPECIFIES THAT FEDERAL DISTRICT COURTS MAY ISSUE HABEAS
CORPUS WRITS ON BEHALF OF PRISONERS WHO ARE "IN CUSTODY IN VIOLATION OF
THE CONSTITUTION . . . OF THE UNITED STATES."  THE DISTRICT COURTS,
RELYING ON MCNALLY V. HILL, 293 U.S. 131 (1934), DENIED RELIEF, HOLDING
THAT THE PETITIONS WERE PREMATURE SINCE RESPONDENTS WERE NOT "IN
CUSTODY" WITHIN THE STATUTES MEANING UNDER THE SENTENCES WHICH THEY
WERE CHALLENGING AND THAT RESPONDENTS WOULD NOT BE ABLE TO ATTACK THOSE
SENTENCES UNTIL THEY STARTED TO SERVE THEM, WHICH WOULD NOT BE UNTIL
AFTER 1990.  THE COURT OF APPEALS REVERSED, REASONING THAT IN LIGHT OF
MORE RECENT DECISIONS THIS COURT WOULD NO LONGER FOLLOW MCNALLY.  HELD:
A PRISONER SERVING CONSECUTIVE SENTENCES IS "IN CUSTODY" UNDER ANY ONE
OF THEM FOR PURPOSES OF SEC. 2241(C)(3) AND MAY IN A FEDERAL HABEAS
CORPUS PROCEEDING THEREUNDER CHALLENGE THE CONSTITUTIONALITY OF A
SENTENCE SCHEDULED FOR FUTURE SERVICE.  THE DECISION IN MCNALLY V.
HILL, SUPRA, WHICH WAS COMPELLED NEITHER BY STATUTE NOR HISTORY AND
WHICH CONSTITUTES AN INDEFENSIBLE BARRIER TO PROMPT ADJUDICATION OF
CONSTITUTIONAL CLAIMS IN THE FEDERAL COURTS, IS OVERRULED.  PP. 58-67. 

383 F.2D 709, AFFIRMED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE SCOPE OF 28 U.S.C. 2241(C)(3), WHICH
SPECIFIES THAT THE UNITED STATES DISTRICT COURTS MAY ISSUE WRITS OF
HABEAS CORPUS ON BEHALF OF PRISONERS WHO ARE "IN CUSTODY IN VIOLATION
OF THE CONSTITUTION . . . OF THE UNITED STATES."  THE QUESTION
PRESENTED IS WHETHER A DISTRICT COURT MAY ENTERTAIN A PETITION FOR A
WRIT OF HABEAS CORPUS FROM A PRISONER INCARCERATED UNDER WRIT OF HABEAS
CORPUS FROM A PRISONER INCARCERATED UNDER CONSECUTIVE SENTENCES WHO
CLAIMS THAT A SENTENCE THAT HE IS SCHEDULED TO SERVE IN THE FUTURE IS
INVALID BECAUSE OF A DEPRIVATION OF RIGHTS GUARANTEED BY THE
CONSTITUTION.  THE COURT CONSIDERED THIS ISSUE IN MCNALLY V. HILL, 293
U.S. 131 (1934), AND HELD THAT THE HABEAS CORPUS STATUTE DOES NOT
AUTHORIZE ATTACKS UPON FUTURE CONSECUTIVE SENTENCES.  WE GRANTED
CERTIORARI IN THIS CASE TO RE-EXAMINE MCNALLY.  389 U.S. 1035 (1968). 
WE CONCLUDE THAT THE DECISION IN THAT CASE WAS COMPELLED NEITHER BY
STATUTE NOR BY HISTORY AND THAT TODAY IT REPRESENTS AN INDEFENSIBLE
BARRIER TO PROMPT ADJUDICATION OF CONSTITUTIONAL CLAIMS IN THE FEDERAL
COURTS. 

RESPONDENTS, ROBERT ROWE AND CLYDE THACKER, ARE SERVING PRISON IN
THE VIRGINIA STATE PENITENTIARY.  IN JUNE 1963 ROWE WAS SENTENCED TO 30
YEARS' IMPRISONMENT AFTER A JURY FOUND HIM GUILTY OF RAPE. 
SUBSEQUENTLY, HE PLEADED GUILTY TO AN INDICTMENT CHARGING HIM WITH
FELONIOUS ABDUCTION WITH INTENT TO DEFILE ARISING FROM THE SAME EVENTS
WHICH HAD LED TO THE RAPE CONVICTION.  /1/  HE WAS SENTENCED TO A 20
YEAR TERM ON THIS VONCITION TO RUN CONSECUTIVELY TO THE 30-YEAR
SENTENCE.  AFTER EXHAUSTING STATE REMEDIES, /2/  ROWE PETITIONER FOR A
WRIT OF HABEAS CORPUS IN THE UNITED TATES DISTRICT COURT FOR THE
WESTERM DISTRICT OF VIRGINIA.  HE DID NOT ATTACK THE RAPE CONVICTION,
BUT ALLEGED THAT THE CONVICTION FOR FELONIOUS ABDUCTION WAS
CONSTITUTIONALLY DEFECTIVE BECAUSE HE HAD BEEN SUBJECTED TO DOUBLE
JEOPARDY, BECAUSE HIS PLEA OF GUILTY HAD BEEN INVOLUNTARY, BECAUSE THE
INDICTMENT HAD FAILED TO STATE AN OFFENSE AND BECAUSE HE HAD BEEN
INADEQUATELY REPRESENTED BY TRIAL COUNSEL.  WITHOUT REACHING THE MERI-S
OF ROWE'S CLAIMS, THE DISTRICT COURT DENIED RELIEF.  APPLYING MCNALLY,
THE COURT FOUND ROWE WAS THEN DETAINED UNDER THE 30-YEAR SENTENCE FOR
RAPE.  SINCE HE DID NOT CLAIM THAT SENTENCE WAS INVALID, IT WAS HELD
THAT HE WAS NOT THEN "IN CUSTODY" UNDER AN UNCONSTITUTIONALLY IMPOSED
SENTENCE WITHIN THE MEANING OF SEC. 2241.  THE COURT CONCLUDED THAT IT
COULD NOT ENTERTAIN ROWE'S CHALLENGE TO THE CONVICTION FOR FELONIOUS
ABDUCTION UNTIL HE WAS CONFINED UNDER THE SENTENCE IMPOSED FOR THAT
CONVICTION.  THAT TIME WOULD NOT ARRIVE UNTIL 1993.  /3/ 

THACKER'S SEC. 2241 PETITION IN THE EASTERN DISTRICT OF VIRGINIA MET
A SIMILAR FATE.  HE IS IMPRISONED UNDER A NUMBER OF SENTENCES TOTALING
MORE THAN 60 YEARS.  HE ASSERTED THAT THREE CONSECUTIVE FIVE-YEAR
SENTENCES IMPOSED FOR HOUSEBREAKING IN 1953 WERE INVALID BECAUSE OF
INADEQUATE REPRESENTATION BY COUNSEL AT THE TIME HE ENTERED PLEAS OF
GUILTY.  /4/  FINDING THAT THACKER'S ATTACK ON THESE SENTENCES WAS
PREMATURE BECAUSE HE HAD NOT BEGUN TO SERVE THEM, THE DISTRICT COURT
DISMISSED THE PETITION "WITHOUT PREJUDICE TO THACKER'S REAPPLICATION AT
THE PROPER TIME."  UNDER MCNALLY, THE "PROPER TIME" WILL BE IN 1994
WHEN THACKER COMMENCES SERVICE OF THE FIRST OF THE THREE SENTENCES HE
CHALLENGES.  /5/ 

THE COURT OF APPEALS FOR THE FOURTH CIRCUIT CONSOLIDATED THE TWO
CASES.  AFTER A HEARING EN BANC, IT REVERSED AND REMANDED THEM TO THE
DISTRICT COURTS.  383 F.2D 709 (1967).  RECOGNIZING THAT THE DISTRICT
COURTS HAD CORRECTLY APPLIED MCNALLY, THE COURT OF APPEALS DECLINED TO
ADHERE TO THAT DECISION.  WRITING FOR A UNANIMOUS COURT, CHIEF JUDGE
HAYNSWORTH REASONED THAT THIS COURT WOULD NO LONGER FOLLOW MCNALLY,
WHICH IN HIS VIEW REPRESENTED A "DOCTRINAIRE APPROACH" BASED ON AN "OLD
JURISDICTIONAL CONCEPT" WHICH HAD BEEN "THOROUGHLY REJECTED BY THE
SUPREME COURT IN RECENT CASES."  /6/  ID., AT 714.  WE ARE IN COMPLETE
AGREEMENT WITH THIS CONCLUSION AND THE CONSIDERATIONS UNDERLYING IT. 

THE WRIT OF HABEAS CORPUS IS A PROCEDURAL DEVICE FOR SUBJECTING
EXECUTIVE, /7/  JUDICIAL, /8/  OR PRIVATE /9/  RESTRAINTS ON LIBERTY TO
JUDICIAL SCRUTINY.  WHERE IT IS AVAILABLE, IT ASSURES AMONG OTHER
THINGS THAT A PRISONER MAY REQUIRE HIS JAILER TO JUSTIFY THE DETENTION
UNDER THE LAW.  /10/  IN ENGLAND WHERE IT ORIGINATED AND IN THE UNITED
STATES, THIS HIGH PURPOSE HAS MADE THE WRIT BOTH THE SYMBOL AND
GUARDIAN OF INDIVIDUAL LIBERTY.  3 BLACKSTONE, COMMENTARIES 131-138;
SEE EX PARTE BOLLMAN, 4 CRANCH 75 (1807); EX PARTE LANGE, 18 WALL.  163
(1874); MOORE V. DEMPSEY, 261 U.S. 86 (1923); JOHNSON V. ZERBST, 304
U.S. 458 (1938); BROWN V. ALLEN, 344 U.S. 443 (1953); FAY V. NOIA, 372
U.S. 391 (1963). 

THE HABEAS CORPUS JURISDICTION OF THE FEDERAL COURTS IS ENUMERATED
IN 28 U.S.C. 2241.  LIKE THE PREDECESSOR STATUTE WHICH CONTROLLED IN
MCNALLY, /11/  SEC. 2241 PROVIDES FOR THE ISSUANCE OF WRITS ON BEHALF
OF PERSONS "IN CUSTODY."  CONFRONTED WITH THIS FACT, THE COURT IN
MCNALLY REASONED THAT "(TO ASCERTAIN ITS MEANING, AND THE APPROPRIATE
USE OF THE WRIT IN THE FEDERAL COURTS, RECOURSE MUST BE HAD TO THE
COMMON LAW . . . AND TO THE DECISIONS OF THIS COURT INTERPRETING AND
APPLYING THE COMMON LAW PRINCIPLES . . . "  MCNALLY V. HILL, 293
U.S.,AT 136.  WE NEED NOT LOOK VERY FAR TO DISCOVER THREE PRINCIPAL
CHARACTERISTICS OF THE WRIT AS IT HAD DEVELOPED IN THE FEDERAL COURTS
EVEN BEFORE THE DECISION IN MCNALLY.  FIRST, THOUGH THE WRIT IN ENGLAND
HAD BEEN UTILIZED LARGELY TO SECURE THE ADMISSION TO BAIL AND DISCHARGE
OF PRISONERS, /12/  ITS MAJOR OFFICE IN THE FEDERAL COURTS SINCE THE
CIVIL WAR HAS BEEN TO PROVIDE POST-CONVICTION RELIEF.  /13/  SECOND,
THE PARTIAL CODIFICATIONS OF THE COMMON-LAW WRIT IN ENGLAND AND MORE
RECENT LEGISLATION IN THIS COUNTRY HAVE CONTAINED SPECIFIC AND DETAILED
PROVISIONS REQUIRING PROMPT ADJUDICATION OF THE VALIDITY OF THE
CHALLENGED RESTRAINT.  SEE AND COMPARE HABEAS CORPUS ACT OF 1679, 31
CAR.  2, C. 2; ACT OF FEBRUARY 5, 1867, C. 28, 14 STAT. 385; AND 28
U.S.C. 2242.  THIRD, AT LEAST TENTATIVELY IN FRANK V. MANGUM, 237 U.S.
309 (1915), AND MORE CLEARLY IN MOORE V. DEMPSEY, 261 U.S. 86 (1923),
THIS COURT HAD RECOGNIZED THAT A DISTRICT COURT WAS AUTHORIZED TO LOOK
BEHIND THE BARE RECORD OF A TRIAL PROCEEDING AND CONDUCT A FACTUAL
HEARING TO DETERMINE THE MERITS OF ALLEGED DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS /14/  -- A PROCEDURE THAT REACHED FULL FLOWERING
IN JOHNSON V. ZERBST, 304 U.S. 458 (1938).  THUS, BY THE TIME MCNALLY
WAS DECIDED, THE FEDERAL WRIT OF HABEAS CORPUS WAS SUBSTANTIALLY A POST
CONVICTION DEVICE WHICH COULD AFFORD PROMPT ADJUDICATION OF FACTUAL AS
WELL AS LEGAL ISSUES.  KEEPING THESE PURPOSES OF THE WRIT IN MIND, WE
TURN TO CONSIDERATION OF THE MCNALLY HOLDING AND THE REASONS WHICH
COMPEL US TO OVERRULE IT. 

A FEDERAL JURY HAD FOUND MCNALLY GUILTY OF THREE COUNTS OF AN
INDICTMENT CHARGING OFFENSES UNDER THE MOTOR VEHICLE THEFT ACT (NOW 18
U.S.C. 2312-2313).  /15/  HE HAD BEEN SENTENCED TO TWO YEARS ON THE
FIRST COUNT AND FOUR YEARS EACH ON THE SECOND AND THIRD COUNTS, THE
SENTENCES ON THE FIRST AND SECOND COUNTS TO RUN CONCURRENTLY AND THE
SENTENCE ON THE THIRD CONSECUTIVELY.  IN HIS APPLICATION IN A DISTRICT
COURT FOR A WRIT OF HABEAS CORPUS, MCNALLY CLAIMED THAT THE INDICTMENT
FAILED TO STATE AN OFFENSE AS TO THE THIRD COUNT.  HE DID NOT ATTACK
THE CONVICTIONS UNDER THE FIRST AND SECOND COUNTS.  WHEN HE FILED HIS
PETITION HE WAS SERVING UNDER THE SECOND COUNT.  THE LOWER COURTS
DENIED RELIEF ON THE MERITS.  BUT THIS COURT AFFIRMED ON A
JURISDICTIONAL GROUND, HOLDING THAT BECAUSE MCNALLY HAD NOT BEGUN TO
SERVE THE SENTENCE ON THE THIRD COUNT-- AND THEREFORE WAS NOT "IN
CUSTODY" UNDER THAT SENTENCE-- HIS PETITION FOR RELIEF WAS PREMATURE: 

"(WITHOUT RESTRAINT WHICH IS UNLAWFUL, THE WRIT MAY NOT BE USED.  A
SENTENCE WHICH THE PRISONER HAS NOT BEGUN TO SERVE CANNOT BE THE CAUSE
OF RESTRAINT WHICH THE STATUTE MAKES THE SUBJECT OF INQUIRY."  293
U.S.,AT 138.  THE EFFECT OF THIS DISPOSITION WAS AMELIORATED SOMEWHAT
BY THE COURT'S SUGGESTION THAT MCNALLY MIGHT SEEK RELIEF BY ANOTHER
ROUTE.  ID., AT 140.  SEE ALSO HOLIDAY V. JOHNSTON, 313 U.S. 342, 349
(1941).  BUT CF. EX PARTE HULL, 312 U.S. 546 (1941).  MOREOVER,
MCNALLY'S CHALLENGE WAS DIRECTED AT THE FACE OF THE INDICTMENT. 
THEREFORE, POSTPONEMENT OF ADJUDICATION OF HIS CLAIMS PROBABLY WOULD
NOT HAVE RESULTED IN THE LOSS OF CRUCIAL EVIDENCE.  BUT THE HARSHNESS
OF A RULE WHICH MAY DELAY DETERMINATION OF FEDERAL CLAIMS FOR DECADES
BECOMES OBVIOUS WHEN APPLIED TO THE CASES OF ROWE AND THACKER.  THEIR
CASES ALSO EXEMPLIFY THE MANNER IN WHICH THE DECISION IN MCNALLY CUTS
AGAINST THE PRIOR AND SUBSEQUENT DEVELOPMENT OF THE WRIT IN THE FEDERAL
COURTS. 

BOTH ROWE AND THACKER ALLEGE THAT THEY WERE SO INADEQUATELY
REPRESENTED AT TRIAL THAT THEY WERE DENIED THE ASSISTANCE OF COUNSEL IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.  PETITIONER CONCEDES
THAT, BUT FOR MCNALLY, RESPONDENTS' ALLEGATIONS WOULD ENTITLE THEM TO
PLENARY HEARINGS IN THE DISTRICT COURTS.  BRIEF FOR PETITIONER 6.  YET,
UNDER THE CURRENT SCHEDULES OF CONFINEMENT, IT IS ARGUED, NEITHER ROWE
NOR THACKER MAY OBTAIN ADJUDICATION OF HIS CLAIMS UNTIL AFTER 1990.  BY
THAT TIME, DIMMED MEMORIES OR THE DEATH OF WITNESSES IS BOUND TO RENDER
IT DIFFICULT OR IMPOSSIBLE TO SECURE CRUCIAL TESTIMONY ON DISPUTED
ISSUES OF FACT.  OF COURSE PREJUDICE TO MERITORIOUS CLAIMS RESULTING
FROM THE KIND OF DELAY WHICH MCNALLY IMPOSES IS NOT LIMITED TO
SITUATIONS INVOLVING INEFFECTIVE ASSISTANCE OF COUNSEL.  TO NAME BUT A
FEW EXAMPLES, FACTUAL DETERMINATIONS ARE OFTEN DISPOSITIVE OF CLAIMS OF
COERCED CONFESSION, E.G., RECK V. PATE, 267 U.S. 433 (1961), LEYRA V.
DENNO, 347 U.S. 556 (1954); LACK OF COMPETENCY TO STAND TRIAL, E.G.,
PATE V. ROBINSON, 383 U.S. 375 (1966); AND DENIAL OF A FAIR TRIAL,
E.G., SHEPPARD V. MAXWELL, 384 U.S. 333 (1966).  POSTPONEMENT OF THE
ADJUDICATION OF SUCH ISSUES FOR YEARS CAN HARM BOTH THE PRISONER AND
THE STATE AND LESSENS THE PROBABILITY THAT FINAL DISPOSITION OF THE
CASE WILL DO SUBSTANTIAL JUSTICE.  /16/  AS THE COURT OF APPEALS
OBSERVED: 

"YEARS HENCE, THE PRISONER, AT LEAST, MAY BE EXPECTED TO GIVE
TESTIMONIAL SUPPORT TO THE ALLEGATIONS OF HIS PETITION, BUT IF THEY ARE
FALSE IN FACT, THE COMMONWELATH OF VIRGINIA MAY BE UNABLE TO REFUTE
THEM BECAUSE OF THE UNAVAILABILITY OF RECORDS AND OF THE TESTIMONY OF
RESPONSIBLE OFFICIALS AND PARTICIPANTS IN THE TRIAL.  THE GREATER THE
LAPSE OF TIME, THE MORE UNLIKELY IT BECOMES THAT THE STATE COULD
REPROSECUTE IF RETRIALS ARE HELD TO BE NECESSARY.  IT IS TO THE GREAT
INTEREST OF THE COMMONWEALTH AND TO THE PRISONER TO HAVE THESE MATTERS
DETERMINED AS SOON AS POSSIBLE WHEN THERE IS THE GREATEST LIKELIHOOD
THE TRUTH OF THE MATTER MAY BE ESTABLISHED."  /17/  383 F.2D, AT 715. 
CLEARLY, TO THE EXTENT THAT THE RULE OF MCNALLY POSTPONES PLENARY
CONSIDERATION OF ISSUES BY THE DISTRICT COURTS, IT UNDERMINES THE
CHARACTER OF THE WRIT OF HABEAS CORPUS AS THE INSTRUMENT FOR RESOLVING
FACT ISSUES NOT ADEQUATELY DEVELOPED IN THE ORIGINAL PROCEEDINGS.  TO
THAT EXTENT, IT ALSO UNDERMINES MOORE V. DEMPSEY SUPRA, AND IS
INCONSISTENT WITH SUBSEQUENT DECISIONS OF THIS COURT WHICH HAVE
REAFFIRMED MOORE.  E.G., JOHNSON V. ZERBST, 304 U.S. 458 (1938); BROWN
V. ALLEN, 344 U.S. 443 (1953); FAY V. NOIA, 372 U.S. 391 (1963). 

MCNALLY IS ALSO AT ODDS WITH THE PURPOSE OF THE WRIT OF HABEAS
CORPUS IN ANOTHER RESPECT.  AS NOTED ABOVE, A PRINCIPAL AIM OF THE WRIT
IS TO PROVIDE FOR SWIFT JUDICIAL REVIEW OF ALLEGED UNLAWFUL RESTRAINTS
ON LIBERTY.  CALENDAR CONGESTION, CONSIDERATIONS OF FEDERALISM, SEE,
E.G., FAY V. NOIA, 372 U.S.,AT 415-420; EX PARTE ROYALL, 117 U.S. 241
(1886), AND THE EXIGENCIES OF APPELLATE REVIEW ACCOUNT FOR LARGELY
UNAVOIDABLE DELAYS IN THE PROCESSING OF CRIMINAL CASES.  BUT THE
PREMATURITY RULE OF MCNALLY IN MANY INSTANCES EXTENDS WITHOUT PRACTICAL
JUSTIFICATION THE TIME A PRISONER ENTITLED TO RELEASE MUST REMAIN IN
CONFINEMENT.  ROWE AND RHACKER EVENTUALLY MAY ESTABLISH THAT THE
CONVICTIONS THEY CHALLENGE WERE OBTAINED IN VIOLATION OF THE
CONSTITUTION.  IF THEY DO, EACH DAY THEY ARE INCARCERATED UNDER THOSE
CONVICTIONS WHILE THEIR CASES ARE IN THE COURTS WILL BE TIME THAT THEY
MIGHT PROPERLY HAVE ENJOYED AS FREE MEN.  COMMON SENSE DICTATES THAT
PRIONERS SEEKING HABEAS CORPUS RELIEF AFTER EXHAUSTING STATE REMEDIES
SHOULD BE ABLE TO DO SO AT THE EARLIEST PRACTICABLE TIME. 

THE FOREGOING ANALYSIS DEMONSTRATES THAT MCNALLY IS INCONSISTENT
WITH THE PURPOSES UNDERLYING THE FEDERAL WRIT OF HABEAS CORPUS. 
MOREOVER, IN ARRIVING AT ITS DECISION, THE COURT IN MCNALLY RELIED IN
PART UPON AN UNNECESSARILY NARROW INTERPRETATION OF THE HABEAS CORPUS
STATUTE.  STANDING ALONE, THE LIMITATION OF SEC. 2241(C)(3)-- THAT
"(THE WRIT OF HABEAS CORPUS SHALL NOT EXTEND TO A PRISONER UNLESS . . .
(HE IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION"-- IS NOT FREE OF
AMBIGUITY.  HOWEVER, IN COMMON UNDERSTANDING "CUSTODY"  COMPREHENDS
RESPONDENTS' STATUS FOR THE ENTIRE DURATION OF THEIR IMPRISONMENT. 
PRACTICALLY SPEAKING, ROWE IS IN CUSTODY FOR 50 YEARS, OR FOR THE
AGGREGATE OF HIS 30- AND 20-YEAR SENTENCES.  FOR PURPOSES OF PAROLE
ELIGIBILITY, UNDER VIRGINIA LAW HE IS INCARCERATED FOR 50 YERS.  VA.
CODE ANN. SEC. 53-251 (1967); SEE N. 3, SUPRA.  NOTHING ON THE FACE OF
SEC. 2241 MILITATES AGAINST AN INTERPRETATION WHICH VIEWS ROWE AND
THACKER AS BEING "IN CUSTODY" UNDER THE AGGREGATE OF THE CONSECUTIVE
SENTENCES IMPOSED ON THEM.  UNDER THAT INTERPRETATION, THEY ARE "IN
CUSTODY IN VIOLATION OF THE CONSTITUTION" IF ANY CONSECUTIVE SENTENCE
THEY ARE SCHEDULED TO SERVE WAS IMPOSED AS THE RESULT OF A DEPRIVATION
OF CONSTITUTIONAL RIGHTS.  THIS APPROACH TO THE STATUE IS CONSISTENT
WITH THE CANON OF CONSTRUCTION THAT REMEDIAL STATUTES SHOULD BE
LIBERALLY CONSTRUED.  IT ALSO ELIMINATES THE INCONSISTENCIES BETWEEN
PURPOSE AND PRACTICE WHICH FLOW FROM THE MCNALLY HOLDING.  MEANINGFUL
FACTUAL HEARINGS ON ALLEGED CONSTITUTIONAL DEPRIVATIONS CAN BE
CONDUCTED BEFORE MEMORIES AND RECORDS GROW STALE, AND AT LEAST ONE
CLASS OF PRISONERS WILL HAVE THE OPPORTUNITY TO CHALLENGE DEFECTIVE
CONVICTIONS AND OBTAIN RELIEF WITHOUT HAVING TO SPEND UNWARRANTED
MONTHS OR YEARS IN PRISON. 

WE FIND UNPERSUASIVE THE ARGUMENTS MADE IN MCNALLY TO SUPPORT THE
NARROWER INTERPRETATION OF THE CUSTODY REQUIREMENT.  NO PRIOR DECISION
OF THE COURT WAS CITED AS CLEAR AUTHORITY FOR THE PREMATURITY
DOCTRINE.  /18/  TO FILL THE GAP, THE COURT RELIED ON THE HISTORY OF
THE WRIT IN ENGLAND PRIOR TO 1789 AND A LINE OF REASONING WHOSE
UNEXAMINED PREMISE WAS DOUBTFUL BEFORE MCNALLY AND WAS SUBSEQUENTLY
REJECTED.  BOTH THE HISTORICAL AND CONCEPTUAL BASES OF THE OPINION ARE
REVEALED IN THE COURT'S OBSERVATION THAT "(DILIGENT SEARCH OF THE
ENGLISH AUTHORITIES AND THE DIGESTS BEFORE 1789 HAS FAILED TO DISCLOSE
ANY CASE WHERE THE WRIT WAS SOUGHT OR USED . . . AS A MEANS OF SECURING
THE JUDICIAL DECISION OF ANY QUESTION WHICH, EVEN IF DETERMINED IN THE
PRISONER'S FAVOR COULD NOT HAVE RESULTED IN HIS IMMEDIATE RELEASE." 
MCNALLY V. HILL, 293 U.S.,AT 137-138.  TO THE EXTENT THAT THE COURT
THOUGHT THAT THE ABSENCE OF EIGHTEENTH CENTRUY ENGLISH PRECEDENT
DEMONSTRATED THAT MCNALLY WAS NOT ENTITLED TO HABEAS CORPUS RELIEF, THE
COURT'S RELIANCE SEEMS TO HAVE BEEN MISPLACED.  IN LIGHT OF THE FACT
THAT ENGLISH JUDGES HAD NO POWER TO IMPOSE CULULATIVE PUNISHMENT IN
FELONY CASES, /19/  AND APPARENTLY DID NOT ASSUME SUCH POWER IN
MISDEMEANOR CASES UNTIL 1769, /20/  IT IS NOT AT ALL SURPRISING THAT
RESEARCH FAILED TO UNCOVER A PRE-1789 COMMON-LAW ANALOGY FOR MCNALLY'S
PETITION FOR RELIEF.  IN ANY EVENT, THE DEVELOPMENT OF THE WRIT OF
HABEAS CORPUS DID NOT END IN 1789.  WHAT WE SAID OF THE WRIT IN A
SIMILAR CONTEXT IN JONES V. CUNNINGHAM, 371 U.S. 236 (1963), IS EQUALLY
APPLICABLE HERE. 

"(THE WRIT) IS NOW AND NEVER HAS BEEN A STATIC, NARROW, FORMALISTIC
REMEDY; ITS SCOPE HAS GROWN TO ACHIEVE ITS GRAND PURPOSE-- THE
PROTECTION OF INDIVIDUALS AGAINST EROSION OF THEIR RIGHT TO BE FREE
FROM WRONGFUL RESTRAINTS UPON THEIR LIBERTY."  ID., AT 243.  OF COURSE
THE EXCURSION IN MCNALLY INTO HISTORY TO DETERMINE THAT THE WRIT OF
HABEAS CORPUS ISSUED ONLY TO ADJUDICATE ENTITLEMENT TO "IMMEDIATE
RELEASE" WAS NOT UNNECESSARY.  THOUGH MCNALLY HELD ONLY THAT THE
PETITIONER DID NOT MEET THE CUSTODY REQUIREMENTS OF THE STATUTE, SEE
WALKER V. WAINWRIGHT, 390 U.S. 335 (1968), THAT HOLDING RESTED IN PART
ON THE PREMISE THAT PHYSICAL DISCHARGE FROM CUSTODY IS THE ONLY RELIEF
AVAILABLE IN A HABEAS CORPUS PROCEEDING.  BUT THE STATUTE DOES NOT DENY
THE FEDERAL COURTS POWER TO FASHION APPROPRIATE RELIEF OTHER THAN
IMMEDIATE RELEASE.  SINCE 1874, THE HABEAS CORPUS STATUTE HAS DIRECTED
THE COURTS TO DETERMINE THE FACTS AND DISPOSE OF THE CASE SUMMARILY,
"AS LAW AND JUSTICE REQUIRE."  REV. STAT. SEC. 761 (1874), SUPERSEDED
BY 28 U.S.C. 2243.  CONSISTENTLY WITH THIS COMMAND, THIS COURT HAS HELD
THAT A PRISONER WHOSE FIRST-SENTENCE PAROLE WAS REVOKED UPON A SECOND
CONVICTION COULD CHALLENGE THE SECOND CONVICTION IN A HABEAS CORPUS
PROCEEDING THOUGH HE WOULD NOT BE RELEASED IF HE PREVAILED, EX PARTE
HULL, 312 U.S. 546 (1941); THAT A PERSON WHO WAS PAROLED AFTER HE FILED
HIS HABEAS CORPUS PETITION COULD STILL OBTAIN RELIEF FROM THE
RESTRAINTS IMPOSED BY THE PAROLE CONDITIONS, JONES V. CUNNINGHAM,
SUPRA; AND THAT A PRISONER COULD ATTACK THE FIRST OF TWO CONSECUTIVE
SENTENCES IN A FEDERAL HABEAS CORPUS PROCEEDING EVEN THOUGH HE WOULD
STILL BE CONFINED UNDER THE SECOND SENTENCE IF HE SUCCEEDED, WALKER V.
WAINWRIGHT, SUPRA.  SEE ALSO UNITED STATES V. PRIDGEON, 153 U.S. 48, 63
64 (1894).  THUS, TO THE EXTENT THAT MCNALLY RELIED ON THE NOTION THAT
IMMEDIATE PHYSICAL RELEASE WAS THE ONLY REMEDY UNDER THE FEDERAL WRIT
OF HABEAS CORPUS, IT FINDS NO SUPPORT IN THE STATUTE AND HAS BEEN
REJECTED BY THIS COURT IN SUBSEQUENT DECISIONS. 

WE OVERRULE MCNALLY AND HOLD THAT A PRISONER SERVING CONSECUTIVE
SENTENCES IS "IN CUSTODY" UNDER ANY ONE OF THEM FOR PURPOSES OF SEC.
2241(C)(3).  /21/  THIS INTERPRETATION IS CONSISTENT WITH THE STATUTORY
LANGUAGE AND WITH THE PURPOSE OF THE WRIT OF HABEAS CORPUS IN THE
FEDERAL COURTS. 

              AFFIRMED. 

/1/  ROWE'S INITIAL PLEA OF DOUBLE JEOPARDY HAD BEEN OVERRULED BY
THE TRIAL COURT. 

/2/  ROWE HAD FILED AN APPLICATION FOR STATE HABEAS CORPUS RELIEF IN
THE VIRGINIA SUPREME COURT OF APPEALS.  THIS PETITION WAS DENIED UNDER
VIRGINIA'S VERSION OF THE MCNALLY RULE.  SEE PEYTON V. WILLIAMS, 206
VA. 595, 145 S.E.2D 147 (1965).  SUBSEQUENT TO THE DECISION BELOW, THE
VIRGINIA LEGISLATURE ENACTED A STATUTE, EFFECTIVE JUNE 28, 1968, WHICH
WILL ABOLISH THE RULE OF PREMATURITY IN THE STATE.  SEE N. 17, INFRA. 

/3/  IF ROWE RECEIVES FULL CREDIT FOR "GOOD TIME," THE 30-YEAR
SENTENCE WILL EXPIRE IN 1982.  UNDER THE TWO SENTENCES, HE WILL BE
ELIGIBLE FOR PAROLE IN 1974.  IF HE WERE RELIEVED OF THE 20-YEAR TERM,
HE WOULD BE ELIGIBLE FOR PAROLE IN 1970.  SEE VA. CODE ANN. SEC. 53-251
(1967). 

/4/  THESE SENTENCES WERE ORIGINALLY SUSPENDED, BUT THE SUSPENSION
WAS REVOKED IN 1956. 

/5/  IF THACKER DOES NOT RECEIVE GOOD-TIME CREDIT, HE WILL COMMENCE
SERVICE OF THE THREE SENTENCES IN 2009.  HE WILL BE ELIGIBLE FOR PAROLE
IN 1976. 

/6/  THE DECISION OF THE COURT OF APPEALS IN THE PRESENT CASE WAS
PRECEDED BY TWO CASES IN WHICH IT HELD THAT SEC. 2241(C)(3) PERMITS
ATTACK UPON A FUTURE CONSECUTIVE SENTENCE WHICH AFFECTS OR MAY AFFECT A
PRISONER'S CURRENT PAROLE ELIGIBILITY.  WILLIAMS V. PEYTON, 372 F.2D
216 (C.A. 4TH CIR. 1967); MARTIN V. VIRGINIA, 349 F.2D 781 (C.A. 4TH
CIR. 1965).  IN MCNALLY, THE COURT REJECTED THE PRISONER'S ARGUMENT
THAT HE WAS ENTITLED TO HABEAS CORPUS RELIEF BECAUSE HE WOULD BE
ELIGIBLE FOR PAROLE IF THE CHALLENGED SENTENCE WERE INVALIDATED.  293
U.S.,AT 134, 140.  IN WILLIAMS AND MARTIN, THE COURT OF APPEALS
CONCLUDED THAT THIS COURT'S DECISION IN JONES V. CUNNINGHAM, 371 U.S.
236 (1963), REPRESENTED A DEPARTURE FROM THIS NARROW READING OF THE
HABEAS CORPUS STATUTE. 

/7/  E.G., DARNEL'S CASE ("FIVE KNIGHTS' CASE") 3 HOW.ST.TR. 1-59
(K.B. 1627); EX PARTE MILLIGAN, 4 WALL.  2 (1866).  THE PROCEEDINGS IN
DARNEL'S CASE ARE SUMMARIZED IN D. MEADOR, HABEAS CORPUS AND MAGNA
CARTA 13-16 (1966). 

/8/  E.G., BUSHEL'S CASE, JONES, T. 13, 84 ENG.REP.  1123 (K.B.);
WALKER V. WAINWRIGHT, 390 U.S. 335 (1968). 

/9/  E.G., REX V. CLARKSON, 1 STRANGE 444, 93 ENG.REP.  625 (K.B.
1721); SEE FORD V. FORD, 371 U.S. 187 (1962). 

/10/  THE INDIGNATION AROUSED BY THE DECISION IN DARNEL'S CASE,
SUPRA, N. 7, LED TO ENACTMENT IN 1627 OF THE PETITION OF RIGHT, 3 CAR. 
1, C. 1, WHICH CONDEMNED A RETURN RECITING THAT IMPRISONMENT WAS BY
"SPECIALE MANDATUM DOMINI REGIS" AS INSUFFICIENT UNDER "THE LAW OF THE
LAND."  SEE W. CHURCH, A TREATISE ON THE WRIT OF HABEAS CORPUS 8-9 (2D
ED. 1893).  IN THE UNITED STATES, THE ACT OF FEBRUARY 5, 1867, C. 28,
14 STAT. 385, MADE THE WRIT AVAILABLE TO "ANY PERSON . . . RESTRAINED
OF HIS OR HER LIBERTY IN VIOLATION OF THE CONSTITUTION, OR OF ANY
TREATY OR LAW OF THE UNITED STATES." 

/11/  REV. STAT. SEC. 753 (1874).  FOR A COLLECTION AND DISCUSSION
OF THE FEDERAL HABEAS CORPUS STATUTES FROM THE ORIGINAL JUDICIARY ACT
OF 1789 TO 1953, SEE G. LONGSDORF, THE FEDERAL HABEAS CORPUS ACTS
ORIGINAL AND AMENDED, 13 F.R.D. 407 (1953). 

/12/  THE CELEBRATED HABEAS CORPUS ACT OF 1679, 31 CAR.  2, C. 2,
WAS CONCERNED EXCLUSIVELY WITH PROVIDING AN EFFICACIOUS REMEDY FOR
PRETRIAL IMPRISONMENT.  SEE W. CHURCH, A TREATISE ON THE WRIT OF HABEAS
CORPUS 21-32, 48-58 (2D ED. 1893). 

/13/  THIS DEVELOPMENT IS EXPLAINED IN PART BY THIS COURT'S
RECOGNITION THAT CERTAIN TRIAL OR SENTENCING DEFECTS COULD INVALIDATE
THE PROCEEDINGS IN A COURT WHICH HAD JURISDICTION OVER THE CRIME AND
THE DEFENDANT, E.G., EX PARTE LANGE, 18 WALL.  163 (1874), BY THE
COURT'S DECISIONS HOLDING THAT SOME OF THE SAFEGUARDS OF CRIMINAL
PROCEDURE EMBODIED IN THE BILL OF RIGHTS ARE APPLICABLE TO STATE
CRIMINAL PROCEEDINGS BY VIRTUE OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, AND BY THE REQUIREMENT THAT A STATE PRISONER
EXHAUST STATE REMEDIES BEFORE APPLYING FOR FEDERAL HABEAS CORPUS.  EX
PARTE ROYALL, 117 U.S. 241 (1886); 28 U.S.C. 2254; SEE FAY V. NOIA, 372
U.S. 391, 415-420 (1963). 

/14/  THE COURT IN FRANK RECOGNIZED THAT THE ACT OF FEBRUARY 5,
1867, C. 28, 14 STAT. 385, SUBSTITUTED "FOR THE BARE LEGAL REVIEW THAT
SEEMS TO HAVE BEEN THE LIMIT OF JUDICIAL AUTHORITY UNDER THE COMMON-LAW
PRACTICE . . . A MORE SEARCHING INVESTIGATION, IN WHICH THE APPLICANT
IS PUT UPON HIS OATH TO SET FORTH THE TRUTH OF THE MATTER RESPECTING
THE CAUSES OF HIS DETENTION, AND THE COURT, UPON DETERMINING THE ACTUAL
FACTS, IS TO 'DISPOSE OF THE PARTY AS LAW AND JUSTICE REQUIRE.'"  237
U.S.,AT 330-331.  IN MOORE, THE COURT REMANDED THE CASE TO THE DISTRICT
COURT FOR DETERMINATION OF THE TRUTH OF ALLEGATIONS THAT THE PERVADING
INFLUENCE OF A MOB HAD DENIED THE APPELLANTS A FAIR TRIAL IN THE STATE
COURT.  261 U.S.,AT 92. 

/15/  BECAUSE MCNALLY WAS IMPRISONED BY FEDERAL AUTHORITIES, HIS
APPLICATION FOR HABEAS CORPUS RELIEF COULD HAVE RESTED ON THE CLAUSE OF
REV. STAT. SEC. 753 (1874) WHICH AUTHORIZED FEDERAL COURTS TO ENTERTAIN
PETITIONS FROM PRISONERS IN THE CUSTODY OF THE UNITED STATES.  HOWEVER,
THE COURT'S IN-ERPRETATION OF THE CUSTODY REQUIREMENT IN MCNALLY WAS
EQUALLY APPLICABLE TO STATE PRISONERS CLAIMING THEIR INCARCERATION
VIOLATED THE CONSTITUTION.  E.G., DARR V. BURFORD, 339 U.S. 200, 203
(1950). 

/16/  EVEN WHERE RESOLUTION OF CONSTITUTIONAL CLAIMS TURNS ON RECORD
EVIDENCE, LOSS OR DESTRUCTION OF A RELEVANT DOCUMENT OR FAILURE TO
TRANSCRIBE THE RECORD OVER A PERIOD OF YEARS, CF. NORVELL V. ILLINOIS,
373 U.S. 420 (1963), COULD MEAN THAT A CLAIM RELEGATED TO THE LIMBO OF
PREMATURITY MIGHT NEVER BE ADEQUATELY DETERMINED. 

/17/  THIS CONSIDERATION HAS LED AT LEAST TWO STATES WHICH
PREVIOUSLY FOLLOWED THE PREMATURITY DOCTRINE TO REJECT IT IN RECENT
YEARS.  SEE COMMONWEALTH EX REL. STEVENS V. MYERS, 419 PA. 1, 213 A.2D
613 (1965); ORE.  REV.  STAT. SEC. 138.510 (1961).  SEE ALSO LANDRETH
V. GLADDEN, 213 ORE.  205, 324 P.2D 475 (1958).  CALIFORNIA DOES NOT
FOLLOW THE MCNALLY RULE.  IN RE CHAPMAN, 43 CAL.2D 385, 273 P.2D 817
(1954).  FINALLY, WHILE THIS CASE WAS UNDER CONSIDERATION IN THIS
COURT, VIRGINIA REPUDIATED THE PREMATURITY DOCTRINE BY STATUTE.  SEE
VA. S. NO. 44, 1968 SESS., AMENDING VA. CODE ANN. SEC. 8-596 (EFFECTIVE
JUNE 28, 1968).  A COMMITTEE OF THE AMERICAN BAR ASSOCIATION WHICH IS
INQUIRING INTO POST-CONVICTION REMEDIES HAS RECOMMENDED ABANDONMENT OF
THE PREMATURITY DOCTRINE WHICH IT CALLS "ONE OF THE MOST FRUSTRATING
ELEMENTS OF PRESENT POST-CONVICTION PRACTICE."  ADVISORY COMMITTEE ON
SENTENCING AND REVIEW, A.B.A. PROJECT ON MINIMUM STANDARDS FOR CRIMINAL
JUSTICE, STANDARDS RELATING TO POST-CONVICTION REMEDIES 43 (TENT. 
DRAFT 1967). 

/18/  OF THE PRIOR DECISIONS OF THIS COURT CITED IN MCNALLY, ONLY IN
RE SWAN, 150 U.S. 637 (1893), SUGGESTED A RULE OF PREMATURITY.  EVEN IN
SWAN, THE COURT HELD NO MORE THAN THAT THE PRISONER WAS NOT ENTITLED TO
IMMEDIATE DISCHARGE FROM CONFINEMENT MERELY BECAUSE THE SENTENCING
JUDGE HAD IMPOSED AN ALLEGEDLY UNAUTHORIZED FINE IN ADDITION TO A VALID
PRISON TERM.  150 U.S.,AT 653.  IN AT LEAST TWO CASES, MORGAN V.
DEVINE, 237 U.S. 632 (1915), AND EX PARTE SPENCER, 228 U.S. 652 (1913),
THE COURT HAD REACHED THE MERITS OF HABEAS CORPUS APPLICATIONS BY
PRISONERS WHO HAD NOT SERVED THE VALID PORTIONS OF THEIR SENTENCES. 
THOUGH RELIEF WAS ULTIMATELY DENIED IN MORGAN AND SPENCER, THEY
ILLUSTRATE THAT THE PRIOR DECISIONS OF THE COURT BY NO MEANS COMPELLED
THE MCNALLY RESULT. 

/19/  SEE REGINA V. ALBURY, (1951) 1 ALL E.R. 491 (CRIM. APP.); 1
J.STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 291-292 (1883). 

/20/  WILKES V. REX, 4 BRO.P.C. 360, 2 ENG.REP.  244 (H.L. 1769). 

/21/  WE INTIMATE NO VIEWS ON THE MERITS OF RESPONDENTS' UNDERLYING
CLAIMS. 

RENO S. HARP III, ASSISTANT ATTORNEY GENERAL OF VIRGINIA, ARGUED THE
CAUSE FOR PETITIONER.  WITH HIM ON THE BRIEFS WAS ROBERT Y. BUTTON,
ATTORNEY GENERAL. 

JOHN J. KIRBY, JR., ARGUED THE CAUSE FOR RESPONDENTS, PRO HAC VICE. 
WITH HIM ON THE BRIEF WAS THOMAS S. CURRIER. 

THOMAS C. LYNCH, ATTORNEY GENERAL, AND EDWARD P. O'BRIEN, DERALD E.
GRANBERG, AND CLIFFORD K. THOMPSON, JR., DEPUTY ATTORNEYS GENERAL,
FILED A BRIEF FOR THE STATE OF CALIFORNIA, AS AMICUS CURIAE, URGING
REVERSAL. 
..END :










LEVY V. LOUISIANA, 391 U.S. 68 


       LEVY, ADMINISTRATRIX V. LOUISIANA THROUGH THE CHARITY

           HOSPITAL OF LOUISIANA AT NEW ORLEANS BOARD OF

           ADMINISTRATORS ET AL.

        APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

        NO. 508.  ARGUED MARCH 27, 1968.-- DECIDED MAY 20, 1968. 


APPELLANT, ON BEHALF OF FIVE ILLEGITIMATE CHILDREN, BROUGHT THIS
ACTION UNDER A LOUISIANA STATUTE (LA. CIV. CODE ART. 2315) FOR THE
WRONGFUL DEATH OF THEIR MOTHER.  THE TRIAL COURT DISMISSED THE SUIT AND
THE COURT OF APPEAL AFFIRMED, HOLDING THAT A SURVIVING "CHILD" UNDER
THE STATUTE DID NOT INCLUDE AN ILLEGITIMATE CHILD, DENIAL OF WHOSE
RIGHT OF RECOVERY WAS "BASED ON MORALS AND GENERAL WELFARE BECAUSE IT
DISCOURAGES BRINGING CHILDREN INTO THE WORLD OUT OF WEDLOCK."  THE
STATE SUPREME COURT DENIED CERTIORARI.  HELD:  THE STATUTE AS CONSTRUED
TO DENY A RIGHT OF RECOVERY UNDER ART. 2315 BY ILLEGITIMATE CHILDREN
CREATES AN INVIDIOUS DISCRIMINATION CONTRAVENING THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, SINCE LEGITIMACY OR ILLEGTIMACY OF
BIRTH HAS NO RELATION TO THE NATURE OF THE WRONG ALLEGEDLY INFLICTED ON
THE MOTHER.  PP. 70-72. 

250 LA. 25, 193 SO.2D 530, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLANT SUED ON BEHALF OF FIVE ILLEGITIMATE CHILDREN TO RECOVER,
UNDER A LOUISIANA STATUTE /1/  (LA. CIV. CODE ANN. ART. 2315 (SUPP.
1967)) FOR TWO KINDS OF DAMAGES AS A RESULT OF THE WRONGFUL DEATH OF
THEIR MOTHER:  (1) THE DAMAGES TO THEM FOR THE LOSS OF THEIR MOTHER;
AND (2) THOSE BASED ON THE SURVIVAL OF A CAUSE OF ACTION WHICH THE
MOTHER HAD AT THE TIME OF HER DEATH FOR PAIN AND SUFFERING.  APPELLEES
/2/  ARE THE DOCTOR WHO TREATED HER AND THE INSURANCE COMPANY. 

WE ASSUME IN THE PRESENT STATE OF THE PLEADINGS THAT THE MOTHER,
LOUISE LEVY, GAVE BIRTH TO THESE FIVE ILLEGITIMATE CHILDREN AND THAT
THEY LIVED WITH HER; THAT SHE TREATED THEM AS A PARENT WOULD TREAT ANY
OTHER CHILD; THAT SHE WORKED AS A DOMESTIC SERVANT TO SUPPORT THEM,
TAKING THEM TO CHURCH EVERY SUNDAY AND ENROLLING AT HER OWN EXPENSE, IN
A PAROCHIAL SCHOOL.  THE LOUISIANA DISTRICT COURT DISMISSED THE SUIT. 
THE COURT OF APPEAL AFFIRMED, HOLDING THAT "CHILD" IN ARTICLE 2315
MEANS "LEGITIMATE CHILD," THE DENIAL TO ILLEGITIMATE CHILDREN OF "THE
RIGHT TO RECOVER" BEING "BASED ON MORALS AND GENERAL WELFARE BECAUSE IT
DISCOURAGES BRINGING CHILDREN INTO THE WORLD OUT OF WEDLOCK."  192
SO.2D 193, 195.  THE SUPREME COURT OF LOUISIANA DENIED CERTIORARI.  250
LA. 25, 193 SO.2D 530. 

THE CASE IS HERE ON APPEAL (28 U.S.C. 1257(2)); AND WE NOTED
PROBABLE JURISDICTION, 289 U.S. 925, THE STATUTE AS CONSTRUED HAVING
BEEN SUSTAINED AGAINST CHALLENGE UNDER BOTH THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT. 

WE START FROM THE PREMISE THAT ILLEGITIMATE CHILDREN ARE NOT
"NONPERSONS."  THEY ARE HUMANS, LIVE, AND HAVE THEIR BEING.  /3/  THEY
ARE CLEARLY "PERSONS" WITHIN THE MEANING OF THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT.  /4/ 

WHILE A STATE HAS BROAD POWER WHEN IT COMES TO MAKING
CLASSIFICATIONS (FERGUSON V. SKRUPA, 372 U.S. 726, 732), IT MAY NOT
DRAW A LINE WHICH CONSTITUTES AN INVIDIOUS DISCRIMINATION AGAINST A
PARTICULAR CLASS.  SEE SKINNER V. OKLAHOMA, 316 U.S. 535, 541-542. 
THOUGH THE TEST HAS BEEN VARIOUSLY STATED, THE END RESULT IS WHETHER
THE LINE DRAWN IS A RATIONAL ONE.  SEE MOREY V. DOUD, 354 U.S. 457, 465
466. 

IN APPLYING THE EQUAL PROTECTION CLAUSE TO SOCIAL AND ECONOMIC
LEGISLATION, WE GIVE GREAT LATITUDE TO THE LEGISLATURE IN MAKING
CLASSIFICATIONS.  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489;
MOREY V. DOUD, SUPRA, AT 465-466.  EVEN SO, WOULD A CORPORATION, WHICH
IS A "PERSON," FOR CERTAIN PURPOSES, WITHIN THE MEANING OF THE EQUAL
PROTECTION CLAUSE (PEMBINA MINING CO. V. PENNSYLVANIA, 125 U.S. 181,
188) BE REQUIRED TO FORGO RECOVERY FOR WRONGS DONE ITS INTERESTS
BECAUSE ITS INCORPORATORS WERE ALL BASTARDS?  HOWEVER THAT MIGHT BE, WE
HAVE BEEN EXTREMELY SENSITIVE WHEN IT COMES TO BASIC CIVIL RIGHTS
(SKINNER V. OKLAHOMA, SUPRA, AT 541; HARPER V. VIRGINIA BOARD OF
ELECTIONS, 383 U.S. 663, 669-670) AND HAVE NOT HESITATED TO S-RIKE DOWN
AN INVIDIOUS CLASSIFICATION EVEN THOUGH IT HAD HISTORY AND TRADITION ON
ITS SIDE.  (BROWN V. BOARD OF EDUCATION, 347 U.S. 483; HARPER V.
VIRGINIA BOARD OF ELECTIONS, SUPRA, AT 669).  THE RIGHTS ASSERTED HERE
INVOLVE THE INTIMATE, FAMILIAR RELATIONSHIP BETWEEN A CHILD AND HIS OWN
MOTHER.  WHEN THE CHILD'S CLAIM OF DAMAGE FOR LOSS OF HIS MOTHER IS IN
ISSUE, WHY, IN TERMS OF "EQUAL PROTECTION," SHOULD THE TORTFEASORS GO
FREE MERELY BECAUSE THE CHILD IS ILLEGITIMATE?  WHY SHOULD THE
ILLEGITIMATE CHILD BE DENIED RIGHTS MERELY BECAUSE OF HIS BIRTH OUT OF
WEDLOCK?  HE CERTAINLY IS SUBJECT TO ALL THE RESPONSIBILITIES OF A
CITIZEN, INCLUDING THE PAYMENT OF TAXES AND CONSCRIPTION UNDER THE
SELECTIVE SERVICE ACT.  HOW UNDER OUR CONSTITUTIONAL REGIME CAN HE BE
DENIED CORRELATIVE RIGHTS WHICH OTHER CITIZENS ENJOY? 

LEGITIMACY OR ILLEGITIMACY OF BIRTH HAS NO RELATION TO THE NATURE OF
THE WRONG ALLEGEDLY INFLICTED ON THE MOTHER.  THESE CHILDRE, THOUGH
ILLEGITIMATE, WERE DEPENDENT ON HER; SHE CARED FOR THEM AND NURTURED
THEM; THEY WERE INDEED HERS IN THE BIOLOGICAL AND IN THE SPIRITUAL
SENSE; IN HER DEATH THEY SUFFERED WRONG IN THE SENSE THAT ANY DEPENDENT
WOULD.  /5/ 

WE CONCLUDE THAT IT IS INVIDIOUS TO DISCRIMINATE AGAINST THEM WHEN
NO ACTION, CONDUCT, OR DEMEANOR OF THEIRS /6/  IS POSSIBLY RELEVANT TO
THE HARM THAT WAS DONE THE MOTHER.  /7/

            REVERSED. 

(FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 76.) 

/1/  "EVERY ACT WHATEVER OF MAN THAT CAUSES DAMAGE TO ANOTHER
OBLIGES HIM BY WHOSE FAULT IT HAPPENED TO REPAIR IT. 

"THE RIGHT TO RECOVER DAMAGES TO PROPERTY CAUSED BY AN OFFENSE OR
QUASI OFFENSE IS A PROPERTY RIGHT WHICH, ON THE DAETH OF THE OBLIGEE,
IS INHERITED BY HIS LEGAL, INSTITUTED, OR IRREGULAR HEIRS, SUBJECT TO
THE COMMUNITY RIGHTS OF THE SURVIVING SPOUSE. 

"THE RIGHT TO RECOVER ALL OTHER DAMAGES CAUSED BY AN OFFENSE OR
QUASI OFFENSE, IF THE INJURED PERSON DIES, SHALL SURVIVE FOR A PERIOD
OF ONE YEAR FROM THE DEATH OF THE DECEASED IN FAVOR OF:  (1) THE
SURVIVING SPOUSE AND CHILD OR CHILDREN OF THE DECEASED, OR EITHER SUCH
SPOUSE OR SUCH CHILD OR CHILDREN; (2) THE SURVIVING FATHER AND MOTHER
OF THE DECEASED, OR EITHER OF THEM, IF HE LEFT NO SPOUSE OF CHILD
SURVIVING; AND (3) THE SURVIVING BROTHERS AND SISTERS OF THE DECEASED,
OR ANY OF THEM, IF HE LEFT NO SPOUSE, CHILD, OR PARENT SURVIVING.  THE
SURVIVORS IN WHOSE FAVOR THIS RIGHT OF ACTION SURVIVES MAY ALSO RECOVER
THE DAMAGES WHICH THEY SUSTAINED THROUGH THE WRONGFUL DEATH OF THE
DECEASED.  A RIGHT TO RECOVER DAMAGES UNDER THE PROVISIONS OF THIS
PARAGRAPH IS A PROPERTY RIGHT WHICH, ON THE DEATH OF THE SURVIVOR IN
WHOSE FAVOR THE RIGHT OF ACTION SURVIVED, IS INHERITED BY HIS LEGAL,
INSTITUTED, OR IRREGULAR HEIRS, WHETHER SUIT HAS BEEN INSTITUTED
THEREON BY THE SURVIVOR OR NOT. 

"AS USED IN THIS ARTICLE, THE WORDS 'CHILD,' 'BROTHER,' 'SISTER,'
'FATHER,' AND 'MOTHER' INCLUDE A CHILD, BROTHER, SISTER, FATHER, AND
MOTHER, BY ADOPTION RESPECTIVELY." 

/2/  THE STATE OF LOUISIANA WAS DISMISSED FROM THE ACTION AND
EXCEPTIONS RELATING TO THE CHARITY HOSPITAL, AT WHICH THE MOTHER WAS
TREATED, WERE CONTINUED INDEFINITELY.  NO APPEAL WAS TAKEN WITH RESPECT
TO EITHER OF THOSE DEFENDANTS. 

/3/  SEE NOTE, THE RIGHTS OF ILLEGITIMATES UNDER FEDERAL STATUTES,
76 HARV.L.REV.  337 (1962). 

/4/  NO STATE SHALL "DENY TO ANY PERSON WITHIN ITS JURISDICTION THE
EQUAL PROTECTION OF THE LAWS." 

/5/  UNDER LOUISIANA LAW BOTH PARENTS ARE UNDER A DUTY TO SUPPORT
THEIR ILLEGITIMATE CHILDREN.  LA. CIV. CODE ANN. ARTS, 239, 240
(1952). 

/6/  WE CAN SAY WITH SHAKESPEARE: "WHY BASTARD, WHEREFORE BASE? 
WHEN MY DIMENSIONS ARE AS WELL COMPACT, MY MIND AS GENEROUS, AND MY
SHAPE AS TRUE, AS HONEST MADAM'S ISSUE?  WHY BRAND THEY US WITH BASE? 
WITH BASENESS?  BASTARDY?  BASE, BASE?"  KING LEAR, ACT I, SCENE 2. 

/7/  UNDER LOUISIANA'S WORKMEN'S COMPENSATION ACT (LA. REV. STAT.
ANN. SECS. 23:1231, 23:1252, 23:1253 (1964) AN ILLEGITIMATE CHILD, WHO
IS A DEPENDENT MEMBER OF THE DECEASED PARENT'S FAMILY, MAY RECOVER
COMPENSATION FOR HIS DEATH.  SEE THOMPSON V. VESTAL LUMBER & MFG. CO.,
208 LA. 83, 22 SO.2D 842 (1945).  EMPLOYERS ARE ENTITLED TO RECOVER
FROM A WRONGDOER WORKMEN'S COMPENSATION PAYMENTS THEY MAKE TO THE
DECEASED'S DEPENDENT ILLEGITIMATE CHILDREN.  SEE BOARD OF COMMISSIONERS
V. CITY OF NEW ORLEANS, 223 LA. 199, 65 SO.2D 313 (1953); THOMAS V.
MATTHEWS LUMBER CO., 201 SO.2D 357 (CT. APP. LA. 1967). 

NORMAN DORSEN ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE BRIEF
WERE ADOLPH J. LEVY, LAWRENCE J. SMITH, AND MELVIN L. WULF. 

WILLIAM A. PORTEOUS III ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON
THE BRIEF WERE JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA,
DOROTHY D. WOLBRETTE AND L. K. CLEMENT, JR., ASSISTANT ATTORNEYS
GENERAL, AND WILLIAM A. PORTEOUS, JR. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY LEO PFEFFER
AND JOSEPH B. ROBISON FOR THE EXECUTIVE COUNCIL OF THE EPISCOPAL CHURCH
IN THE U.S.A. ET AL., AND BY HARRY D. KRAUSE, JACK GREENBERG, AND LEROY
D. CLARK FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., ET
AL. 

BRIEF OF AMICUS CURIAE, URGING AFFIRMANCE, WAS FILED BY MR.
GREMILLION, PRO SE, WILLIAM P. SCHULER, SECOND ASSISTANT ATTORNEY
GENERAL, AND MRS. WOLBRETTE AND MR. CLEMENT FOR THE ATTORNEY GENERAL OF
LOUISIANA. 
..END :




















GLONA V. AMERICAN GUARANTEE CO., 391 U.S. 73 


       GLONA V. AMERICAN GUARANTEE & LIABILITY INSURANCE CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 639.  ARGUED MARCH 27-28, 1968.-- DECIDED MAY 20,
1968. 


IN THIS DIVERSITY ACTION PETITIONER SEEKS DAMAGES FOR THE ALLEGED
WRONGFUL DEATH IN LOUISIANA OF HER ILLEGITIMATE SON.  THE TRIAL COURT
GRANTED RESPONDENTS' MOTION FOR SUMMARY JUDGMENT ON THE GROUND THAT
UNDER LOUISIANA LAW A MOTHER HAD NO RIGHT OF ACTION FOR THE DEATH OF
HER ILLEGITIMATE SON.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE
LOUISIANA WRONGFUL DEATH STATUTE AS CONSTRUED TO BAR RECOVERY FOR
DAMAGES TO THE PARENT OF AN ILLEGITIMATE CHILD WHILE ALLOWING SUCH
RECOVERY TO THE PARENT OF A LEGITIMATE CHILD VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, THERE BEING NO RATIONAL
BASIS FOR THE DISTINCTION.  LEVY V. LOUISIANA, ANTE, P. 68.  PP. 74
76. 

379 F.2D 545, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT IN THE FEDERAL DISTRICT COURT UNDER THE HEAD OF
DIVERSITY JURISDICTION TO RECOVER FOR A WRONGFUL DEATH SUFFERED IN AN
AUTOMOBILE ACCIDENT IN LOUISIANA.  THE PLAINTIFF, A TEXAS DOMICILIARY,
WAS THE MOTHER OF THE VICTIM, HER ILLEGITIMATE SON.  HAD THE TEXAS
WRONGFUL DEATH STATUTE /1/  BEEN APPLICABLE, IT WOULD, AS CONSTRUED,
HAVE AUTHORIZED THE ACTION.  /2/  BUT SUMMARY JUDGMENT WAS GRANTED ON
THE GROUND THAT UNDER LOUISIANA LAW /3/  THE MOTHER HAD NO RIGHT OF
ACTION FOR THE DEATH OF HER ILLEGITIMATE SON.  THE COURT OF APPEALS
AFFIRMED, REJECTING THE CLAIM THAT THE DISCRIMINATION VIOLATED THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  379 F.2D 545.  WE
GRANTED THE PETITION FOR A WRIT OF CERTIORARI, 389 U.S. 969, IN ORDER
TO HEAR THE CASE ALONG WITH LEVY V. LOUISIANA, ANTE, P. 68. 

LOUISIANA FOLLOWS A CURIOUS COUSE IN ITS SANCTIONS AGAINST
ILLEGITIMACY.  A COMMON-LAW WIFE IS ALLOWED TO SUE UNDER THE LOUISIANA
WRONGFUL DEATH STATUTE.  /4/  WHEN A MARRIED WOMAN GIVES BIRTH TO AN
ILLEGITIMATE CHILD, HE IS, WITH A FEW EXCEPTIONS, CONCLUSIVELY PRESUMED
TO BE LEGITIMATE.  /5/  LOUISIANA MAKES NO DISTINCTION BETWEEN
LEGITIMATE CHILDREN AND ILLEGITIMATE CHILDREN WHERE INCEST IS
CONCERNED.  /6/  A MOTHER MAY INHERIT FROM AN ILLEGITIMATE CHILD WHOM
SHE HAS ACKNOWLEDGED AND VICE VERSA.  /7/  IF THE ILLEGITIMATE SON HAD
A HORSE THAT WAS KILLED BY THE DEFENDANT AND THEN DIED HIMSELF, HIS
MOTHER WOULD HAVE A RIGHT TO SUE FOR THE LOSS OF THAT PROPERTY.  /8/
IF THE ILLEGITIMATE SON WERE KILLED IN AN INDUSTRIAL ACCIDENT AT HIS
PLACE OF EMPLOYMENT, THE MOTHER WOULD BE ELIGIBLE FOR RECOVERY UNDER
THE LOUISIANA WORKMEN'S COMPENSATION ACT, IF SHE WERE A DEPENDENT OF
HIS.  /9/  YET IT IS ARGUED THAT SINCE THE LEGISLATURE IS DEALING WITH
"SIN," IT CAN DEAL WITH IT SELECTIVELY AND IS NOT COMPELLED TO ADOPT
COMPREHENSIVE OR EVEN CONSISTENT MEASURES.  SEE MCLAUGHLIN V. FLORIDA,
379 U.S. 184, 191.  IN THIS SENSE THE PRESENT CASE IS DIFFERENT FROM
THE LEVY CASE, WHERE BY MERE ACCIDENT OF BIRTH THE INNOCENT, ALTHOUGH
ILLEGITIMATE, CHILD WAS MADE A "NONPERSON"  BY THE LEGISLATURE, WHEN IT
CAME TO RECOVERY OF DAMAGES FOR THE WRONGFUL DEATH OF HIS MOTHER. 

YET WE SEE NO POSSIBLE RATIONAL BASIS (MOREY V. DOUD, 354 U.S. 457,
465-466) FOR ASSUMING THAT IF THE NATURAL MOTHER IS ALLOWED RECOVERY
FOR THE WRONGFUL DEATH OF HER ILLEGITIMATE CHILD, THE CAUSE OF
ILLEGITIMACY WILL BE SERVED.  IT WOULD, INDEED, BE FARFETCHED TO ASSUME
THAT WOMEN HAVE ILLEGITIMATE CHILDREN SO THAT THEY CAN BE COMPENSATED
IN DAMAGES FOR THEIR DEATH.  A LAW WHICH CREATES AN OPEN SEASON ON
ILLEGITIMATES IN THE AREA OF AUTOMOBILE ACCIDENTS GIVES A WINDFALL TO
TORTFEASORS.  BUT IT HARDLY HAS A CAUSAL CONNECTION WITH THE "SIN,"
WHICH IS, WE ARE TOLD, THE HISTORIC REASON FOR THE CREATION OF THE
DISABILITY.  TO SAY THAT THE TEST OF EQUAL PROTECTION SHOULD BE THE
"LEGAL" RATHER THAN THE BIOLOGICAL RELATIONSHIP IS TO AVOID THE ISSUE. 
FOR THE EQUAL PROTECTION CLAUSE NECESSARILY LIMITS THE AUTHORITY OF A
STATE TO DRAW SUCH "LEGAL" LINES AS IT CHOOSES. 

OPENING THE COURTS TO SUITS OF THIS KIND MAY CONCEIVABLY BE A
TEMPTATION TO SOME TO ASSERT MOTHERHOOD FRAUDULENTLY.  THAT PROBLEM,
HOWEVER, CONCERNS BURDEN OF PROOF.  WHERE THE CLAIMANT IS PLAINLY THE
MOTHER, THE STATE DENIES EQUAL PROTECTION OF THE LAWS TO WITHHOLD
RELIEF MERELY BECAUSE THE CHILD WRONGFULLY KILLED, WAS BORN TO HER OUT
OF WEDLOCK. 

              REVERSED. 

/1/  TEX. REV. CIV. STAT. ANN. ART. 4675 (1952). 

/2/  THE COURT OF APPEALS SO INDICATED IN THIS CASE.  379 F.2D, AT
546, N. 2.  SEE GALVESTON, H. & S.A.R. CO. V. WALKER, 48 TEX.CIV.APP. 
52, 106 S.W. 705 (1907). 

/3/  THE APPLICABLE STATUTORY PROVISION IS SET OUT IN LEVY V.
LOUISIANA, ANTE, AT 69, N. 1.  AS THE COURT OF APPEALS NOTED, ARTICLE
2315 OF THE LOUISIANA CIVIL CODE, PROVIDING FOR WRONGFUL DEATH
RECOVERY, GIVES A CAUSE OF ACTION TO "THE SURVIVING FATHER AND MOTHER
OF THE DECEASED, OR EITHER OF THEM . . . "  THE STATUTE DOES NOT STATE
"LEGITIMATE" FATHER OR "LEGITIMATE" MOTHER, BUT THE LOUISIANA COURTS
HAVE HELD THAT A DECEDENT MUST BE LEGITIMATE IN ORDER FOR AN ASCENDANT
OR SIBLING TO RECOVER FOR HIS DEATH.  YOUCHICAN V. TEXAS & P.R. CO.,
147 LA. 1080, 86 SO. 551 (1920); BUIE V. HESTER, 147 SO.2D 733 (CT.
APPL LA. 1062).  SEE ALSO GREEN V. NEW ORLEANS, S. & G.I.R. CO., 141
LA. 120, 74 SO. 717 (1917); JACKSON V. LINDLOM, 84 SO.2D 101 (CT. APP.
LA 1955).  SEE ALSO VAUGHAN V. DALTON-LARD LUMBER CO., 119 LA. 61, 43
SO. 926 (1907). 

/4/  CHIVERS V. COUCH MOTOR LINES, 159 SO.2D 544 (CT. APP. LA.
1964). 

/5/  LA. CIV. CODE ANN. ART. 184 (1952).  SEE LAMBERT V. LAMBERT,
164 SO.2D 661 (CT. APP. LA. 1964); HARRIS V. ILLINOIS CENTRAL R. CO.,
220 F.2D 734 (C.A. 5TH CIR. 1955); CF. LEWIS V. POWELL, 178 SO.2D 769
(CT. APPL LA. 1965). 

/6/  LA. REV. STAT. ANN. SEC. 14:78 (1952). 

/7/  LA. CIV. CODE ANN. ARTS, 918, 922 (1952). 

/8/  LA. CIV. CODE ANN. ARTS. 2315, 922 (1952 AND SUPP. 1967). 

/9/  LA. REV. STAT. ANN. SECS. 23:1231, 23:1252, 23:1253 (1964);
THOMPSON V. VESTAL LUMBER & MFG. CO., 208 LA. 83, 119, 22 SO.2D 842,
854 (1945); SEE NOTE, 20 TULANE L.PREV.  145 (1945. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK AND MR. JUSTICE STEWART
JOIN, DISSENTING.  /1A/ 

THESE DECISIONS CAN ONLY BE CLASSED AS CONSTITUTIONAL CURIOSITIES. 

AT COMMON LAW, NO PERSON HAD A LEGALLY COGNIZABLE INTEREST IN THE
WRONGFUL DEATH OF ANOTHER PESON, AND NO PERSON COULD INHERIT THE
PERSONAL RIGHT OF ANOTHER TO RECOVER FOR TORTIOUS INJURIES TO HIS
BODY.  /1/  BY STATUTE, LOUISIANA HAS CREATED BOTH RIGHTS IN FAVOR OF
CERTAIN CLASSES OF PERSONS.  THE QUESTION IN THESE CASES IS WHETHER THE
WAY IN WHICH LOUISIANA HAS DEFINED THE CLASSES OF PERSONS WHO MAY
RECOVER IS CONSTITUTIONALLY PERMISSIBLE.  THE COURT HAS REACHED A
NEGATIVE ANSWER TO THIS QUESTION BY A PROCESS THAT CAN ONLY BE
DESCRIBED AS BRUTE FORCE. 

ONE IMPORTANT REASON WHY RECOVERY FOR WRONGFUL DEATH HAD EVERYWHERE
TO AWAIT STATUTORY DELINEATION IS THAT THE INTEREST ONE PERSON HAS IN
THE LIFE OF ANOTHER IS INHERENTLY INTRACTABLE.  RATHER THAN HEAR OFFERS
OF PROOF OF LOVE AND AFFECTION AND ECONOMIC DEPENDENCE FROM EVERY
PERSON WHO MIGHT THINK OR CLAIM THAT THE BELL HAD TOLLED FOR HIM, THE
COURTS STAYED THEIR HANDS PENDING LEGISLATIVE ACTION.  LEGISLATURES,
RESPONDING TO THE SAME DIFFUSENESS OF INTEREST, GENERALLY DEFINED
CLASSES OF PROPER PLAINTIFFS BY HIGHLY ARBITRARY LINES BASED ON FAMILY
RELATIONSHIPS, EXCLUDING ISSUES CONCERNING THE ACTUAL EFFECT OF THE
DEATH ON THE PLAINTIFF.  /2/ 

LOUISIANA HAS FOLLOWED THE TRADITIONAL PATTERN.  THERE THE ACTIONS
LIE IN FAVOR OF THE SURVIVING SPOUSE AND CHILDREN OF THE DECEASED, IF
ANY; IF NONE, THEN IN FAVOR OF THE SURVIVING PARENTS OF THE DECEASED,
IF ANY; IF NONE, THEN IN FAVOR OF THE DECEASED'S BROTHERS AND SISTERS,
IF ANY; IF NONE, THEN NO ACTION LIES.  ACCORDING TO THIS SCHEME, A
GROWN MAN MAY SUE FOR THE WRONGFUL DEATH OF PARENTS HE DID NOT LOVE,
/3/  EVEN IF THE DEATH RELIEVES HIM OF A GREAT ECONOMIC BURDEN OR
ENTITLES HIM TO A LARGE INHERITANCE.  BUT AN EMPLOYEE WHO LOSES A JOB
BECAUSE OF THE DEATH OF HIS EMPLOYER HAS NO CAUSE OF ACTION, AND A
MINOR CHILD CARED FOR BY NEIGHBORS OR RELATIVES "AS IF HE WERE THEIR
OWN SON" DOES NOT THEREFORE HAVE A RIGHT TO SUE FOR THEIR DEATH.  /4/
PERHAPS MOST DRAMATIC, A SURVIVING PARENT, FOR EXAMPLE, OF A LOUISIANA
DECEASED MAY SUE IF AND ONLY IF THERE IS NO SURVIVING SPOUSE OR CHILD:
IT DOES NOT MATTER WHO LOVED OR DEPENDED ON WHOM, OR WHAT THE ECONOMIC
SITUATION OF ANY SURVIVOR MAY BE, OR EVEN WHETHER THE SPOUSE OR CHILD
ELECTS TO SUE.  /5/  IN SHORT, THE WHOLE SCHEME OF THE LOUISIANA
WRONGFUL DEATH STATUTE, WHICH IS SIMILAR IN THIS RESPECT TO THAT OF
MOST OTHER STATES, MAKES EVERYTHING THE COURT SAYS ABOUT AFFECTION AND
NURTURE AND DEPENDENCE ALTOGETHER IRRELEVANT.  THE ONLY QUESTION IN ANY
CASE IS WHETHER THE PLAINTIFF FALLS WITHIN THE CLASSES OF PERSONS TO
WHOM THE STATE HAS ACCORDED A RIGHT OF ACTION FOR THE DEATH OF
ANOTHER. 

LOUISIANA HAS CHOSEN, AS HAVE MOST OTHER STATES IN ONE RESPECT OR
ANOTHER, TO DEFINE THESE CLASSES OF PROPER PLAINTIFFS IN TERMS OF THEIR
LEGAL RATHER THAN THEIR BIOLOGICAL RELATION TO THE DECEASED.  A MAN MAY
RECOVER FOR THE DEATH OF HIS WIFE, WHETHER HE LOVED HER OR NOT, BUT MAY
NOT RECOVER FOR THE DEATH OF HIS PARAMOUR.  /6/  A CHILD MAY RECOVER
FOR THE DEATH OF HIS ADOPTED PARENTS.  AN ILLEGITIMATE MAY RECOVER FOR
THE WRONGFUL DEATH OF A PARENT WHO HAS TAKEN A FEW HOURS TO ACKNOWLEDGE
HIM FORMALLY, BUT NOT FOR THE DEATH OF A PERSON WHO HE CLAIMS IS HIS
PARENT BUT WHO HAS NOT ACKNOWLEDGED HIM.  /7/  A PARENT MAY RECOVER FOR
THE DEATH OF AN ILLEGITIMATE CHILD HE HAS ACKNOWLEDGED, BUT NOT FOR THE
DEATH OF AN ILLEGITIMATE CHILD WHOM HE DID NOT BOTHER TO ACKNOWLEDGE
UNTIL THE POSSIBILITY OF TORT RECOVERY AROSE. 

THE COURT TODAY, FOR SOME REASON WHICH I AM AT A LOSS TO UNDERSTAND,
RULES THAT THE STATE MUST BASE ITS ARBITRARY DEFINITION OF THE
PLAINTIFF CLASS ON BIOLOGICAL RATHER THAN LEGAL RELATIONSHIPS.  EXACTLY
HOW THIS MAKES THE LOUISIANA SCHEME EVEN MARGINALLY MORE "RATIONAL" IS
NOT CLEAR, FOR NEITHER A BIOLOGICAL RELATIONSHIP NOR LEGAL
ACKNOWLEDGEMENT IS INDICATIVE OF THE LOVE OR ECONOMIC DEPENDENCE THAT
MAY EXIST BETWEEN TWO PERSONS.  IT IS, FRANKLY, PREPOSTEROUS TO SUGGEST
THAT THE STATE HAS MADE ILLEGITIMATES INTO "NONPERSONS," OR THAT, BY
ANALOGY WITH WHAT LOUISIANA HAS DONE HERE IT MIGHT DENY ILLEGITIMATES
CONSTITUTIONAL RIGHTS OR THE BENEFITS OF DOING BUSINESS IN CORPORATE
FORM.  /8/  THE RIGHTS AT ISSUE HERE STEM FROM THE EXISTENCE OF A
FAMILY RELATIONSHIP, AND THE STATE HAS DECIDED ONLY THAT IT WILL NOT
RECOGNIZE THE FAMILY RELATIONSHIP UNLESS THE FORMALITIES OF MARRIAGE,
OR OF THE ACKNOWLEDGEMENT OF CHILDREN BY THE PARENT IN QUESTION, HAVE
BEEN COMPLIED WITH. 

THERE IS OBVIOUS JUSTIFICATION FOR THIS DECISION.  IF IT BE
CONCEDED, AS I ASSUME IT IS, THAT THE STATE HAS POWER TO PROVIDE THAT
PEOPLE WHO CHOOSE TO LIVE TOGETHER SHOULD GO THROUGH THE FORMALITIES OF
MARRAIGE AND, IN DEFAULT, THAT PEOPLE WHO BEAR CHILDREN SHOULD
ACKNOLWEDGE THEM, IT IS LOGICAL TO ENFORCE THESE REQUIREMENTS BY
DECLARING THAT THE GENERAL CLASS OF RIGHTS THAT ARE DEPENDENT UPON
FAMILY RELATIONSHIPS SHALL BE ACCORDED ONLY WHEN THE FORMALITIES AS
WELL AS THE BIOLOGY OF THOSE RELATIONSHIPS ARE PRESENT.  MOREOVER, AND
FOR MANY OF THE SAME REASONS WHY A STATE IS EMPOWERED TO REQUIRE
FORMALITIES IN THE FIRST PLACE, A STATE MAY CHOOSE TO SIMPLIFY A
PARTICULAR PROCEEDING BY RELIANCE ON FORMAL PAPERS RATHER THAN A
CONTEST OF PROOF.  /9/  THAT SUITS FOR WRONGFUL DEATH, ACTIONS TO
DETERMINE THE HEIRS OF INTESTATES, AND THE LIKE, MUST AS A
CONSTITUTIONAL MATTER DEAL WITH EVERY CLAIM OF BIOLOGICAL PATERNITY OR
MATERNITY ON ITS MERITS IS AN EXCEEDINGLY ODD PROPOSITION. 

THE EQUAL PROTECTION CLAUSE STATES A COMPLEX AND DIFFICULT
PRINCIPLE.  CERTAIN CLASSIFICATIONS ARE "INHERENTLY SUSPECT," WHICH I
TAKE TO MEAN THAT ANY RELIANCE UPON THEM IN DIFFERENTIATING LEGAL
RIGHTS REQUIRES VERY STRONG AFFIRMATIVE JUSTIFICATION.  THE DIFFERENCE
BETWEE- A CHILD WHO HAS BEEN FORMALLY ACKNOWLEDGED AND ONE WHO HAS NOT
IS HARDLY ONE OF THESE.  OTHER CLASSIFICATIONS ARE IMPERMISSIBLE
BECAUSE THEY BEAR NO INTELLIGLBE PROPER RELATION TO THE CONSEQUENCES
THAT ARE MADE TO FLOW FROM THEM.  THIS DOES NOT MEAN THAT ANY
CLASSIFICATION THIS COURT THINKS COULD BE BETTER DRAWN IS
UNCONSTITUTIONAL.  BUT EVEN IF THE POWER OF THIS COURT TO IMPROVE ON
THE LINES THAT CONGRESS AND THE STATES HAVE DRAWN WERE VERY MUCH
BROADER THAN I CONSIDER IT TO BE, I COULD NOT UNDERSTAND WHY A STATE
WHICH BASES THE RIGHT TO RECOVER FOR WRONGFUL DEATH STRICTLY ON FAMILY
RELATIONSHIPS COULD NOT DEMAND THAT THOSE RELATIONSHIPS BE FORMALIZED. 

I WOULD AFFIRM THE DECISIONS OF THE STATE COURT AND THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

/1A/  THIS OPINION APPLIES ALSO TO NO. 508, LEVY V. LOUISIANA, ANTE,
P. 68. 

/1/  SEE VAN BEECK V. SABINE TOWING CO., 300 U.S. 342, 3440345, AND
CASES THERE CITED. 

/2/  AN ENGLISH STATUTE, LORD CAMPBELL'S ACT, 9 & 10 VICT., C. 93
(1846), "HAS SERVED AS THE MODEL FOR SIMILAR ACTS IN MOST OF THE STATES
IN THIS COUNTRY."  F. TIFFANY, DEATH BY WRONGFUL ACT 5 (2D ED., 1913). 
THE STATUTE PROVIDED THAT THE ACTION "SHALL BE FOR THE BENEFIT OF THE
WIFE, HUSBAND, PARENT, AND CHILD . . . "  IT IS NOTEWORTHY THAT ENGLISH
AND CANADIAN COURTS HELD THE WORDS "CHILD" AND "PARENT" TO EXCLUDE
ILLEGITIMATE RELATIONSHIPS.  DICKINSON V. NORTH EASTERN R. CO., 2
HURL.& COLT.  735, 9 L.T.R.(N.S.)  299; GIBSON V. MIDLAND R. CO., 2
ONT.  658.  A RECENT COMPREHENSIVE SURVEY OF AMERICAN LAW IN THE FIELD
COMMENTS THAT "(IF THERE IS A GENERAL RULE TODAY, IT IS PROBABLY THAT
THE WORD 'CHILD' OR 'CHILDREN' WHEN USED IN A STATUTE PERTAINING TO
WRONGFUL DEATH BENEFICIARIES, REFERS TO A LEGITIMATE CHILD OR
LEGITIMATE CHILDREN, AND THUS ONLY LEGITIMATES CAN RECOVER FOR THE
WRONGFUL DEATH OF THEIR PARENTS.  THIS IS MERELY AN APPLICATION OF THE
PRINCIPLE THAT STATUTES PATTERNED AFTER LORD CAMPBELL'S ACT WHICH USE
THE WORD 'KIN' MEAN LEGITIMATE KIN, AND THAT WHERE SUCH STATUTES SAY
'FATHER' OR MOTHER,' 'CHILDREN,' 'BROTHERS' OR 'SISTERS,' THEY MEAN
ONLY LEGITIMATE FATHER, MOTHER, CHILDREN, BROTHERS OR SISTERS."  S.
SPEISER, RECOVERY FOR WRONGFUL DEATH 587 (1966).     /3/  HE MAY EVEN,
LIKE SHAKESPEARE'S EDMUND, HAVE SPENT HIS LIFE CONTRIVING TREACHERY
AGAINST HIS FAMILY.  SUPPOSING THAT THE BARD HAD ANY VIEWS ON THE LAW
OF LEGITIMACY, THEY MIGHT MORE EASILY BE DISCERNED FROM EDMUND'S
CHARACTER THAN FROM THE WORDS HE UTTERS IN DEFENSE OF THE ONLY THING HE
CARES FOR, HIMSELF.     /4/  NUMEROUS LOUISIANA CASES, REFLECTING THE
DIFFICULTY OF ATTEMPTING TO DETERMINE THE "REAL" INTEREST OF ONE PERSON
IN THE DEATH OF ANOTHER, HAVE INSISTED UPON STRICT CONFORMITY TO THE
REQUIRED STATUTORY RELATIONSHIP, AND STATED THAT THE STATUTE MAY NOT BE
EXTENDED BY INTERPRETATION TO ANALOGOUS CASES.  E.G., BRADLEY V. SWIFT
& CO., 167 LA. 249, 119 SO. 37 (1928).  AS IT HAPPENS, THIS COURT HAS
HAD OCCASION TO RECOGNIZE LOUISIANA'S INTEREST IN STRICT CONSTRUCTION. 
SEE MOBILE LIFE INS. CO. V. BRAME, 95 U.S. 754, HOLDING THAT AN
INSURANCE COMPANY, HAVING PAID THE INSURANCE AFTER THE WRONGFUL DEATH
OF ITS INSURED, HAD NO CAUSE OF ACTION AGAINST THE TORTFEASOR UNDER
LOUISIANA LAW. 

/5/  SEE, E.G., BURTHLONG V. HUBER, 4 SO.2D 480; DOUCET V. TRAVELERS
INS. CO., 91 F.SUPP.  864.  THE COURT SPEAKS IN LEVY OF TORT-FEASORS
GOING FREE.  HOWEVER, THE DECEASED IN THAT CASE LEFT A LEGITIMATE
PARENT.  UNDER THE COURT'S OPINION, THE RIGHT OF LEGITIMATE AND PERHAPS
DEPENDENT PARENTS TO SUE WILL HENCEFORTH BE CUT OFF BY THE MERE
EXISTENCE OF AN ILLEGITIMATE CHILD, THOUGH THE CHILD BE A SELF
SUPPORTING ADULT, AND THOUGH THE CHILD ELECT NOT TO SUE.  INCIDENTALLY,
THE BURDEN OF PROVING THE NONEXISTENCE OF SUCH A CHILD WILL BE ON THE
PLAINTIFF PARENT.  TRAHAN V. SOUTHERN PACIFIC CO., 209 F.SUPP.  334. 

/6/ VAUGHAN V. DALTON-LARD LUMBER CO., 119 LA. 61, 43 SO. 926
(1907).  AT THE SAME TIME, A WIFE MAY RECOVER FOR THE DEATH OF A MAN TO
WHOM SHE IS LAWFULLY MARRIED, ALTHOUGH SHE IS NOT DEPENDENT ON HIM FOR
SUPPORT AND, INDEED, IS LIVING ADULTEROUSLY WITH SOMEONE ELSE.  JONES
V. MASSACHUSETTS BONDING & INS. CO., 55 SO.2D 88. 

/7/  IN THOMPSON V. VESTAL LUMBER & MFG. CO., 116 SO.2D 594, 596,
AFF'D, 208 LA. 83, 22 SO.2D 842 (1944), THE COURT STATED:  "CHILDREN
REFERRED TO IN THIS LAW (THE WRONGFUL DEATH STATUTE) INCLUDE ONLY THOSE
WHO ARE THE ISSUE OF LAWFUL WEDLOCK OR WHO, BEING ILLEGITIMATE, HAVE
BEEN ACKNOWLEDGED OR LEGITIMATED PURSUANT TO METHODS EXPRESSLY
ESTABLISHED BY LAW."  ARTICLE 203 OF THE LOUISIANA CIVIL CODE PROVIDES
THAT CHILDREN MAY BE ACKNOWLEDGED BY A DECLARATION, BY EITHER OR BOTH
PARENTS, EXECUTED IN THE PRESENCE OF A NOTARY PUBLIC AND TWO
WITNESSES. 

/8/  A MORE OBVIOUS ANALOGY FROM THE LAW OF CORPORATIONS THAN THE
RATHER FARFETCHED EXAMPLE THE COURT HA SUGGESTED IS THE ELEMENTARY RULE
THAT THE BENEFITS OF DOING BUSINESS IN CORPORATE FORM MAY BE DENIED, TO
THE WILLFUL, THE NEGLIGENT, AND THE INNOCENT ALIKE, IF THE FORMALITIES
OF INCORPORATION HAVE NOT BEEN PROPERLY COMPLIED WITH. 

/9/  EVEN WHERE LIABILITY ARISES UNDER A FEDERAL STATUTE DEFINING
RIGHTS IN TERMS OF A FAMILY RELATIONSHIP TO THE DECEASED, FEDERAL
COURTS HAVE GENERALLY LOOKED TO THE LAW AND THE FORMALITIES OF THE
APPROPRIATE STATE.  IN SEABOARD AIR LINE V. KENNEY, 240 U.S. 489,
ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS
AMENDED, 36 STAT. 291, THIS COURT RELIED UPON THE NORTH CAROLINA
DETERMINATION THAT THE "NEXT OF KIN" OF AN ILLEGITIMATE DECEASED WERE
HIS HALF SIBLINGS RATHER THAN HIS FATHER.  IN DE SYLVA V. BALLENTINE,
351 U.S. 570, ARISING UNDER THE COPYRIGHT ACT, 61 STAT. 652, 17 U.S.C.
1 ET SEQ., WE HELD THAT THE WORD "CHILDREN" IN SEC. 24 OF THAT FEDERAL
TATUTE SHOULD BE DEFINED BY REFERENCE TO CALIFORNIA LAW; CALIFORNIA LAW
PROVIDED THAT AN ILLEGITIMATE WHO HAD BEEN ACKNOLWEDGED IN WRITING BY
HIS FATHER COULD INHERIT FROM HIM; SINCE THE ILLEGITIMATE INVOLVED IN
DE SYLVA HAD BEEN ACKNOWLEDGED, WE HELD HE WAS INCLUDED WITHIN THE
STATUTORY TERM.  TWO JUSTICES, CONCURRING IN THE UNANIMOUS RESULT,
ARGUED THAT IT WAS NOT PROPER TO LOOK TO STATE LAW FOR A DEFINITION OF
THE FEDERAL STATUTORY TERM "CHILDREN."  NOWHERE, HOWEVER, WAS IT
SUGGESTED THAT WE LOOK TO THE CONSTITUTION.  IN BELL V. TUG SHRIKE, 332
F.2D 330, THE FOURTH CIRCUIT LOOKED TO VIRGINIA LAW TO DETERMINE
WHETHER THE PLAINTIFF WAS A "WIDOW" ENTITLED TO BRING SUIT UNDER THE
JONES ACT, 41 STAT. 1007, 46 U.S.C. 688.  PLAINTIFF HAD "MARRIED" HER
"HUSBAND" AT A TIME WHEN HE WAS ALREADY MARRIED.  ALTHOUGH THE PRE
EXISTING MARRIAGE WAS LATER DISSOLVED BY DIVORCE, AFTER WHICH PLAINTIFF
CONTINUED TO LIVE WITH THE "HUSBAND," VIRGINIA DOES NOT RECOGNIZE
COMMON-LAW MARRIAGES.  CONSEQUENTLY, PLAINTIFF WAS HELD NOT TO BE A
"WIDOW."  THERE WAS NO SUGGESTION THAT EQUAL PROTECTION WAS IN ANY WAY
INVOLVED. 

WILLIAM F. WESSEL ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE LEONARD J. FAGOT, MARVIN C. GRODSKY, AND BENJAMIN E. SMITH. 

DAVID R. NORMANN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE FRANK S. NORMANN AND MARGOT MAZEAU. 
..END :


















COMMISSIONER V. GORDON, 391 U.S. 83 


       COMMISSIONER OF INTERNAL REVENUE V. GORDON ET UX.

       CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 760.  ARGUED APRIL 4, 1968.-- DECIDED MAY 20, 1968. 

           /1A/ 


PACIFIC TELEPHONE & TELEGRAPH CO. (PACIFIC), A SUBSIDIARY OF AMERICAN
TELEPHONE & TELEGRAPH CO., WHICH OWNED ABOUT 90% OF PACIFIC'S STOCK,
TRANSFERRED CERTAIN OF ITS ASSETS TO A NEW COMPANY, PACIFIC NORTHWEST
BELL TELEPHONE CO. (NORTHWEST), IN EXCHANGE FOR ALL NORTHWEST'S COMMON
STOCK, AND DEBT PAPER.  IN 1961 PACIFIC DISTRIBUTED TO ITS SHAREHOLDERS
RIGHTS TO PURCHASE ABOUT 57% OF NORTHWEST'S COMMON STOCK AT $16 A
SHARE, WHICH WAS BELOW ITS MARKET VALUE.  PACIFIC ADVISED ITS
STOCKHOLDERS THAT "IT EXPECTED THAT WITHIN ABOUT THREE YEARS . . . THE
COMPANY BY ONE OR MORE OFFERINGS WILL OFFER FOR SALE THE BALANCE OF
SUCH STOCK."  IT ALSO REPORTED THAT THE INTERNAL REVENUE SERVICE HAD
RULED THAT STOCKHOLDERS WHO SOLD RIGHTS DISTRIBUTED TO THEM WOULD
RECEIVE TAXABLE INCOME IN THE AMOUNT OF THE PROCEEDS OF SALE, AND THAT
STOCKHOLDERS WHO EXERCISED RIGHTS WOULD RECEIVE TAXABLE INCOME IN THE
AMOUNT OF THE DIFFERENCE BETWEEN $16 AND THE FAIR MARKET VALUE PER
SHARE OF NORTHWEST STOCK OBTAINED.  IN 1963 THE REMAINING NORTHWEST
STOCK WAS SIMILARLY OFFERED TO PACIFIC STOCKHOLDERS THROUGH RIGHTS. 
RESPONDENTS IN NO. 760 WERE MINORITY STOCKHOLDERS OF PACIFIC WHO
RECEIVED RIGHTS PURSUANT TO THE 1961 DISTRIBUTION; THEY SOLD FOUR
RIGHTS AND EXERCISED THE BALANCE.  PETITIONERS IN NO. 781, WHO ALSO
RECEIVED RIGHTS IN 1961, EXERCISED THEM ALL.  NONE OF THESE INDIVIDUALS
REPORTED ANY INCOME FROM THESE TRANSACTIONS ON THEIR TAX RETURNS AND
THE COMMISSIONER OF INTERNAL REVENUE ASSERTED DEFICIENCIES.  THE TAX
COURT UPHELD THE TAXPAYERS' CONTENTION THAT THE 1961 SPINOFF
DISTRIBUTION MET THE REQUIREMENTS OF SEC. 355 OF THE INTERNAL REVENUE
CODE OF 1954, WITH THE RESULT THAT NO GAIN SHOULD BE RECOGNIZED ON THE
RECEIPT OR EXERCISE OF THE RIGHTS.  THE TAX COURT HELD THAT THE SALE OF
THE FOUR RIGHTS DID RESULT IN ORDINARY INCOME.  NO. 781 WAS APPEALED TO
THE COURT OF APPEALS FOR THE NINTH CIRCUIT, WHICH REVERSED THE TAX
COURT AND HELD THAT THE DIFFERENCE BETWEEN $16 AND FAIR MARKET VALUE
WAS TAXABLE INCOME.  NO. 760 WAS APPEALED TO THE SECOND CIRCUIT, WHICH
SUSTAINED THE TAX COURT ON THIS POINT, BUT HELD THE AMOUNT RECEIVED
FROM THE SALE OF THE RIGHTS WAS TAXABLE AS A CAPITAL GAIN RATHER THAN
INCOME.  HELD: 

1.  WHEN A CORPORATION SELLS CORPORATE PROPERTY TO STOCKHOLDERS OR
THEIR ASSIGNEES AT LESS THAN ITS FAIR MARKET VALUE, THUS DIMINISHING
THE CORPORATION'S NET WORTH, IT IS ENGAGING IN A "DISTRIBUTION OF
PROPERTY," AND SUCH A SALE RESULTS IN A DIVIDEND TO SHAREHOLDERS UNLESS
SOME SPECIFIC EXCEPTION APPLIES.  PP. 88-91. 

2.  SECTION 355 OF THE CODE DOES NOT PROVIDE AN EXCEPTION FOR THE
1961 DISTRIBUTION.  PP. 91-98. 

(A) THE 1961 DISTRIBUTION DID NOT TRANSFER "ALL" THE NORTHWEST STOCK
NOR DID IT TRANSFER "CONTROL" (DEFINED IN SEC. 368(C) AS 80%), WITHIN
THE MEANING OF SEC. 355(A)(1)(D).  PP. 91-95. 

(B) FOR AN INITIAL TRANSFER OF LESS THAN A CONTROLLING INTEREST TO
BE TREATED AS MERELY THE FIRST STEP IN THE DIVESTITURE OF CONTROL IT
MUST BE CLEARLY IDENTIFIABLE AS SUCH AT THE TIME IT IS MADE AND THERE
MUST BE A BINDING COMMITMENT TO TAKE THE LATER STEPS, WHICH WAS NOT THE
SITUATION HERE.  PP. 95-98. 

(C) SINCE RECEIPT AND EXERCISE OF THE RIGHTS PRODUCED ORDINARY
INCOME, RECEIPT AND SALE OF THE RIGHTS ALSO RESULTED IN INCOME TAXABLE
AT ORDINARY RATES.  P. 98. 

NO. 760, 382 F.2D 499, REVERSED; NO. 781, 382 F.2D 485, AFFIRMED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THESE CASES, INVOLVING THE INTERPRETATION OF SEC. 355 OF THE INTERNAL
REVENUE CODE OF 1954, HAVE AN APPROPRIATELY COMPLEX HISTORY. 

AMERICAN TELEPHONE AND TELEGRAPH COMPANY (HEREAFTER A.T. & T.) 
CONDUCTS ITS LOCAL COMMUNICATIONS BUSINESS THROUGH CORPORATE
SUBSIDIARIES.  PRIOR TO JULY 1, 1961, COMMUNICATIONS SERVICES IN
CALIFORNIA, OREGON, WASHINGTON, AND IDAHO WERE PROVIDED BY PACIFIC
TELEPHONE AND TELEGRAPH COMPANY (HEREAFTER PACIFIC).  A.T. & T. HELD
ABOUT 90% OF THE COMMON STOCK OF PACIFIC AT ALL RELEVANT TIMES.  THE
REMAINDER WAS WIDELY DISTRIBUTED. 

EARLY IN 1961, IT WAS DECIDED TO DIVIDE PACIFIC INTO TWO SEPARATE
CORPORATE SUBSIDIARIES OF A.T. & T. THE PLAN WAS TO CREATE A NEW
CORPORATION, PACIFIC NORTHWESTE BELL TELEPHONE COMPANY (HEREAFTER
NORTHWEST) TO CONDUCT TELEPHONE BUSINESS IN OREGON, WASHINGTON, AND
IDAHO, LEAVING THE CONDUCT OF THE CALIFORNIA BUSINESS IN THE HANDS OF
PACIFIC.  TO THIS END, PACIFIC WOULD TRANSFER ALL ITS ASSETS AND
LIABILITIES IN THE FIRST THREE STATES TO NROTHWEST, IN RETURN FOR
NORTHWEST COMMON STOCK AND DEBT PAPER.  THEN, PACIFIC WOULD TRANSFER
SUFFICIENT NORTHWEST STOCK TO PACIFIC SHAREHOLDERS TO PASS CONTROL OF
NORTHWEST TO THE PARENT COMPANY, A.T. & T. 

PACIFIC HAD, HOWEVER, OBJECTIVES OTHER THAN FISSION.  IT WANTED TO
GENERATE CASH TO PAY OFF EXISTING LIABILITIES AND MEET NEEDS FOR
CAPITAL, BUT NOT TO HAVE EXCESS CASH LEFT OVER.  IT ALSO FEARED THAT A
SIMPLE DISTRIBUTION OF THE NORTHWEST STOCK WOULD ENCOUNTER OBSTACLES
UNDER CALIFORNIA CORPORATION LAW.  /1/  CONSEQUENTLY, THE "PLAN FOR
REORGANIZATION" SUBMITTED TO PACIFIC'S SHAREHOLDERS ON FEBRUARY 27,
1961, HAD TWO SPECIAL FEATURES.  IT PROVIDED THAT ONLY ABOUT 56% OF THE
NORTHWEST COMMON STOCK WOULD BE OFFERED TO PACIFIC SHAREHOLDERS
IMMEDIATELY AFTER THE CREATION OF NORTHWEST.  IT ALSO PROVIDED THAT,
INSTEAD OF SIMPLY DISTRIBUTING NORTHWEST STOCK PRO RATE TO
SHAREHOLDERS, PACIFIC WOULD DISTRIBUTE TO ITS SHAREHOLDERS TRANSFERABLE
RIGHTS ENTITLING THEIR HOLDERS TO PURCHASE NORTHWEST COMMON FROM
PACIFIC AT AN AMOUNT TO BE SPECIFIED BY PACIFIC'S BOARD OF DIRECTORS,
BUT EXPECTED TO BE BELOW THE FAIR MARKET VALUE OF THE NORTHWEST
COMMON. 

IN ITS FEBRUARY 27 STATEMENT TO SHAREHOLDERS, PACIFIC SAID THAT IT
WAS SEEKING A RULING FROM THE INTERNAL REVENUE SERVICE 

"WITH RESPECT TO THE TAX STATUS OF THE RIGHTS TO PURCHASE WHICH WILL
BE ISSUED IN CONNECTION WITH THE OFFERINGS OF CAPITAL STOCK OF THE NEW
COMPANY TO SHAREHOLDERS OF THE COMPANY . . . " THE STATEMENT WARNED,
HOWEVER, THAT "(TAXABLE INCOME TO THE HOLDERS OF SUCH SHARE MAY RESULT
WITH RESPECT TO SUCH RIGHTS." 

THE PLAN WAS APPROVED BY PACIFIC'S SHAREHOLDERS ON MARCH 24, 1961. 
PACIFIC TRANSFERRED ITS ASSETS AND LIABILITIES IN OREGON, WASHINGTON,
AND IDAHO TO NORTHWEST, AND CEASED BUSINESS IN THOSE STATES ON JUNE 30,
1961.  ON SEPTEMBER 29, 1961, PACIFIC ISSUED TO ITS COMMON STOCKHOLDERS
ONE RIGHT FOR EACH OUTSTANDING SHARE OF PACIFIC STOCK.  THESE RIGHTS
WERE EXERCISABLE UNTIL OCTOBER 20, 1961.  SIX RIGHTS PLUA A PAYMENT OF
$16 WERE REQUIRED TO PURCHASE ONE SHARE OF NORTHWEST COMMON.  THE
RIGHTS ISSUED IN 1961 WERE SUFFICIENT TO TRANSFER ABOUT 57% OF THE
NORTHWEST STOCK. 

BY SEPTEMBER 29, 1961, THE INTERNAL REVENUE SERVICE HAD RULED THAT
SHAREHOLDERS WHO SOLD RIGHTS WOULD REALIZE ORDINARY INCOME IN THE
AMOUNT OF THE SALES PRICE, AND THAT SHAREHOLDERS WHO EXERCISED RIGHTS
WOULD REALIZE ORDINARY INCOME IN THE AMOUNT OF THE DIFFERENCE BETWEEN
$16 PAID IN AND THE FAIR MARKET VALUE, MEASURED AS OF THE DATE OF
EXERCISE, OF THE NORTHWEST COMMON RECEIVED.  THE PROSPECTUS
ACCOMPANYING THE DISTRIBUTED RIGHTS INFORMED PACIFIC SHAREHOLDERS OF
THIS RULING. 

ON JUNE 12, 1963, THE REMAINING 43% OF THE NORTHWEST STOCK WAS
OFFERED TO PACIFIC SHAREHOLDERS.  THIS SECOND OFFERING WAS STRUCTURED
MUCH AS THE FIRST HAD BEEN, EXCEPT THAT EIGHT RIGHTS PLUS $16 WERE
REQUIRED TO PURCHASE ONE SHARE OF NORTHWEST. 

THE GORDONS, RESPONDENTS IN NO. 760, AND THE BAANS, PETITIONERS IN
NO. 781, WERE MINORITY SHAREHOLDERS OF PACIFIC AS OF SEPTEMBER 29,
1961.  IN THE RIGHTS DISTRIBUTION THAT OCCURRED THAT DAY THE GORDONS
RECEIVED 1,540 RIGHTS UNDER THE PLAN.  THEY EXERCISED 1,536 OF THE
RIGHTS ON OCTOBER 5, 1961, PAYING $4,096 TO OBTAIN 256 SHARES OF
NORTHWEST, AT A PRICE OF $16 PLUS SIX RIGHTS PER SHARE.  THE AVERAGE
PRICE OF NORTHWEST STOCK ON THE AMERICAN STOCK EXCHANGE WAS $26 PER
SHARE ON OCTOBER 5.  ON THE SAME DAY, THE GORDONS SOLD THE FOUR ODD
RIGHTS FOR $6.36.  THE BAANS RECEIVED 600 RIGHTS ON SEPTEMBER 29,
1961.  THEY EXERCISED THEM ALL ON OCTOBER 11, 1961, RECEIVING 100
SHARES OF NORTHWEST IN RETURN FOR THEIR 600 RIGHTS AND $1,600.  ON
OCTOBER 11, THE AGREED FAIR MARKET VALUE OF ONE NORTHWEST SHARE WAS
$26.94. 

IN THEIR FEDERAL INCOME TAX RETURNS FOR 1961, NEITHER THE GORDONS
NOR THE BAANS REPORTED ANY INCOME UPON THE RECEIPT OF THE RIGHTS OR
UPON EXERCISING THEM TO OBTAIN NORTHWEST STOCK AT LESS THAN ITS FAIR
MARKET VALUE.  THE GORDONS ALSO DID NOT REPORT ANY INCOME ON THE SALE
OF THE FOUR RIGHTS.  THE COMMISSIONER ASSERTED DEFICIENCIES AGAINST
BOTH SETS OF TAXPAYERS.  HE CONTENDED, IN A JOINT PROCEEDING IN THE TAX
COURT, THAT THE TAXPAYERS RECEIVED ORDINARY INCOME IN THE AMOUNT OF THE
DIFFERENCE BETWEEN THE SUM THEY PAID IN EXERCISING THEIR RIGHTS AND THE
FAIR MARKET VALUE OF THE NORTHWEST STOCK RECEIVED.  HE CONTENDED
FURTHER THAT THE GORDONS REALIZED ORDINARY INCOME IN THE AMOUNT OF
$6.36, THE SALES PRICE, UPON THE SALE OF THEIR FOUR ODD RIGHTS. 

THE TAX COURT UPHELD THE TAXPAYERS' CONTENTION THAT THE 1961
DISTRIBUTION OF NORTHWEST STOCK MET THE REQUIREMENTS OF SEC. 355 OF THE
CODE, WITH THE RESULT THAT NO GAIN OR LOSS SHOULD BE RECOGNIZED ON THE
RECEIPT BY THEM OR THEIR EXERCISE OF THE RIGHTS.  THE TAX COURT HELD,
HOWEVER, THAT THE GORDONS' SALE OF THE FOUR ODD RIGHTS RESULTED IN
ORDINARY INCOME TO THEM.  THE COMMISSIONER APPEALED THE BAAN CASE TO
THE COURT OF APPEALS FOR THE NINTH CIRCUIT, AND THE GORDON CASE TO THE
COURT OF APPEALS FOR THE SECOND CIRCUIT; IN THE LATTER, THE GORDONS
CROSS-APPEALED.  THE NINTH CIRCUIT REVERSED THE TAX COURT, HOLDING THAT
THE SPREAD BETWEEN $16 AND FAIR MARKET VALUE WAS TAXABLE AS ORDINARY
INCOME TO THE BAANS.  THE SECOND CIRCUIT DISAGREED, SUSTAINING THE TAX
COURT ON THIS POINT IN THE GORDON CASE, JUDGE FRIENDLY DISSENTING.  THE
SECOND CIRCUIT WENT ON TO HOLD THAT THE AMOUNT RECEIVED BY THE GORDONS
FOR THE FOUR ODD RIGHTS WAS TAXABLE AS A CAPITAL GAIN RATHER THAN AS
ORDINARY INCOME, REVERSING THE TAX COURT ON THIS POINT. 

BECAUSE OF THE CONFLICT, WE GRANTED CERTIORARI.  389 U.S. 1033,
1034.  WE AFFIRM THE DECISION OF THE COURT OF APPEALS FOR THE NINTH
CIRCUIT, AND REVERSE THE DECISION OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT ON BOTH POINTS. 

UNDER SECS. 301 AND 316 OF THE CODE, SUBJECT TO SPECIFIC EXCEPTIONS
AND QUALIFICATIONS PROVIDED IN THE CODE, ANY DISTRIBUTION OF PROPERTY
BY A CORPRATION TO ITS SHAREHOLDERS OUT OF ACCUMULATED EARNINGS AND
PROFITS IS A DIVIDEND TAXABLE TO THE SHAREHOLDERS AS ORDINARY INCOME. 
/2/  EVERY DISTRIBUTION OF CORPORATE PROPERTY, AGAIN EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED, "IS MADE OUT OF EARNINGS AND PROFITS
TO THE EXTENT THEREOF."  /3/  IT IS HERE AGREED THAT ON SEPTEMBER 28,
1961, PACIFIC'S ACCUMULATED EARNINGS AND PROFITS WERE LARGER IN EXTENT
THAT THE TOTAL AMOUNT THE COMMISSIONER HERE CONTENDS WAS A DIVIDEND--
THE DIFFERENCE BETWEEN THE FAIR MARKET VALUE OF ALL NORTHWEST STOCK
SOLD IN 1961 AND THE TOTAL AMOUNT, AT $16 PER SHARE, PAID IN BY
PURCHASERS. 

WHETHER THE ACTUAL DIVIDEND OCCURS AT THE MOMENT WHEN VALUABLE
RIGHTS ARE DISTRIBUTED OR AT THE MOMENT WHEN THEIR VALUE IS REALIZED
THROUGH SALE OR EXERCISE, IT IS CLEAR THAT WHEN A CORPORATION SELLS
CORPORATE PROPERTY TO STOCKHOLDERS OR THEIR ASSIGNESS AT LESS THAN ITS
FAIR MARKET VALUE, THUS DIMINISHING THE NET WORTH OF THE CORPORATION,
IT IS ENGAGING IN A "DISTRIBUTION OF PROPERTY" AS THAT TERM IS USED IN
SEC. 316.  /4/  SUCH A SALE THUS RESULTS IN A DIVIDEND TO SHAREHOLDERS
UNLESS SOME SPECIFIC EXCEPTION OR QUALIFICATION APPLIES.  IN
PARTICULAR, IT IS HERE AGREED THAT THE SPREAD WAS TAXABLE TO THE
PRESENT TAXPAYERS UNLESS THE DISTRIBUTION OF NORTHWEST STOCK BY PACIFIC
MET THE REQUIREMENTS FOR NONRECOGNITION STATED IN SEC. 355, OR SEC.
354, OR SEC. 346(B) OF THE CODE.  /5/  SINCE THE TAX COURT CONCLUDED
THAT THE REQUIREMENTS OF SEC. 355 HAD BEEN MET, IT DID NOT REACH
TAXPAYERS' ALTERNATIVE CONTENTIONS.  UNDER THE DISPOSITION THAT WE MAKE
HERE UPON THE SEC. 355 QUESTION, THESE ALTERNATIVE CONTENTIONS REMAIN
OPEN FOR FURTHER PROCEEDINGS IN THE TAX COURT. 

CORPORATIONS CONTROLLED BY THE DISTRIBUTING CORPORATION DO NOT RESULT
IN RECOGNIZED GAIN OR LOSS TO THE DISTRIBUTEE SHAREHOLDERS.  /6/  THE
REQUIREMENTS OF THE SECTION ARE DETAILED AND SPECIFIC, AND MUST BE
APPLIED WITH PRECISION.  IT IS NO DOUBT TRUE, AS THE SECOND CIRCUIT
EMPHASIZED, THAT THE GENERAL PURPOSE OF THE SECTION WAS TO DISTINGUISH
CORPORATE FISSION FROM THE DISTRIBUTION OF EARNINGS AND PROFITS. 
HOWEVER, ALTHOUGH A COURT MAY HAVE REFERENCE TO THIS PURPOSE WHEN THERE
IS A GENUINE QUESTION AS TO THE MEANING OF ONE OF THE REQUIREMENTS
CONGRESS HAS IMPOSED, A COURT IS NOT FREE TO DISREGARD REQUIREMENTS
SIMPLY BECAUSE IT CONSIDERS THEM REDUNDANT OR UNSUITED TO ACHIEVING THE
GENERAL PURPOSE IN A PARTICULAR CASE.  CONGRESS HAS ABUNDANT POWER TO
PROVIDE THAT A CORPORATION WISHING TO SPIN OFF A SUBSIDIARY MUST,
HOWEVER BONA FIDE ITS INTENTIONS, CONFORM THE DETAILS OF A DISTRIBUTION
TO A PARTICULAR SET OF RULES. 

THE COMMISSIONER CONTENDS THAT THE 1961 DISTRIBUTION OF NORTHWEST
STOCK FAILED TO QUALIFY UNDER SEC. 355 IN SEVERAL RESPECTS.  /7/  WE
NEED, HOWEVER, REACH ONLY ONE.  SECTION 355(A)(1)(D) REQUIRES THAT, IN
ORDER TO QUALIFY FOR NONRECOGNITION OF GAIN OR LOSS TO SHAREHOLDERS,
THE DISTRIBUTION MUST BE SUCH THAT 

"AS PART OF THE DISTRIBUTION, THE DISTRIBUTING CORPORATION
DISTRIBUTES-- 

     "(I) ALL OF THE STOCK AND SECURITIES IN THE CONTROLLED

  CORPORATION HELD BY IT IMMEDIATELY BEFORE THE DISTRIBUTION, OR 

      "(II) AN AMOUNT OF STOCK IN THE CONTROLLED CORPORATION

  CONSTITUTING CONTROL WITHIN THE MEANING OF SECTION 368(C), AND .

  . . " 


"THE TERM 'CONTROL' MEANS THE OWNERSHIP OF STOCK POSSESSING AT LEAST
80 PERCENT OF THE TOTAL COMBINED VOTING POWER OF ALL CLASSES OF STOCK
ENTITLED TO VOTE AND AT LEAST 80 PERCENT OF THE TOTAL NUMBER OF SHARES
OF ALL OTHER CLASSES OF STOCK OF THE CORPORATION."  /8/ 

ON SEPTEMBER 28, 1961, THE DAY BEFORE THE FIRST RIGHTS DISTRIBUTION,
PACIFIC OWNED ALL OF THE COMMON STOCK OF NORTHWEST, THE ONLY CLASS OF
SECURITIES THAT COMPANY HAD ISSUED.  THE 1961 RIGHTS OFFERING
CONTEMPLATED TRANSFERRING, AND SUCCEEDED IN TRANSFERRING, ABOUT 57% OF
THE NORTHWEST COMMON TO PACIFIC SHAREHOLDERS.  IT THEREFORE COULD NOT
BE CLEARER THAT THIS 1961 DISTRIBUTION DID NOT TRANSFER "ALL" OF THE
STOCK OF NORTHWEST HELD BY PACIFIC PRIOR TO IT, AND DID NOT TRANSFER
"CONTROL" AS THAT TERM IS DEFINED IN SEC. 368(C). 

NEVERTHELESS, TAXPAYERS CONTEND, AND THE SECOND CIRCUIT AGREED, THAT
THE REQUIREMENTS OF SUBSECTION (A)(1)(D) WERE HERE MET BECAUSE PACIFIC
DISTRIBUTED THE REAMINING 43% OF THE NORTHWEST STOCK IN 1963.  THE
COURT SAID THAT THE PURPOSE OF THE SUBSECTION "IN NO WAY REQUIRES A
SINGLE DISTRIBUTION."  /9/  THE COURT APPARENTLY CONCLUDED THAT SO LONG
AS IT APPEARS, AT THE TIME THE ISSUE ARISES, THAT THE PARENT
CORPORATION HAS IN FACT DISTRIBUTED ALL OF THE STOCK OF THE SUBSIDIARY,
THE REQUIREMENTS OF SEC. (A)(1)(D)(I) HAVE BEEN SATISFIED. 

WE ARE FORCED TO DISAGREE.  THE CODE REQUIRES THAT "THE
DISTRIBUTION" DIVEST THE CONTROLLING CORPORATION OF ALL OF, OR 80%
CONTROL OF, THE CONTROLLED CORPORATION.  CLEARLY, IF AN INITIAL
TRANSFER OF LESS THAN A CONTROLLING INTEREST IN THE CONTROLLED
CORPORATION IS TO BE TREATED FOR TAX PURPOSES AS A MERE FIRST STEP IN
THE DIVESTITURE OF CONTROL, IT MUST AT LEAST BE IDENTIFIABLE AS SUCH AT
THE TIME IT IS MADE.  ABSENT OTHER SPECIFIC DIRECTIONS FROM CONGRESS,
CODE PROVISIONS MUST BE INTERPRETED SO AS TO CONFORM TO THE BASIC
PREMISE OF ANNUAL TAX ACCOUNTING.  /10/  IT WOULD BE WHOLLY
INCONSISTENT WITH THIS PREMISE TO HOLD THAT THE ESSENTIAL CHARACTER OF
A TRANSACTION, AND ITS TAX IMPACT, SHOULD REMAIN NOT ONLY
UNDETERMINABLE BUT UNFIXED FOR AN INDEFINITE AND UNLIMITED PERIOD IN
THE FUTURE, AWAITING EVENTS THAT MIGHT OR MIGHT NOT HAPPEN.  THIS
REQUIREMENT THAT THE CHARACTER OF A TRANSACTION BE DETERMINABLE DOES
NOT MEAN THAT THE ENTIRE DIVESTITURE MUST NECESSARILY OCCUR WITHIN A
SINGLE TAX YEAR.  IT DOES, HOWEVER, MEAN THAT IF ONE TRANSACTION IS TO
BE CHARACTERIZED AS A "FIRST STEP" THERE MUST BE A BINDING COMMITMENT
TO TAKE THE LATER STEPS.  /11/ 

HERE, IT WAS LITTLE MORE THAN A FORTUITY THAT, BY THE TIME SUIT WAS
BROUGHT ALLEGING A DEFICIENCY IN TAXPAYERS' 1961 RETURNS, PACIFIC HAD
DISTRIBUTED THE REAMINDER OF THE STOCK.  THE PLAN FOR REORGANIZATION
SUBMITTED TO SHAREHOLDERS IN 1961 PROMISED THAT 56% OF THAT STOCK WOULD
BE DISTRIBUTED IMMEDIATELY.  THE PLAN WENT ON, 

     "IT IS EXPECTED THAT WITHIN ABOUT THREE YEARS AFTER ACQUIRING

  THE STOCK OF THE NEW COMPANY, THE COMPANY BY ONE OR MORE

  OFFERINGS WILL OFFER FOR SALE THE BALANCE OF SUCH STOCK,

  FOLLOWING THE PROCEDURES DESCRIBED IN THE PRECEDING PARAGRAPH. 

  THE PROCEEDS FROM SUCH SALES WILL BE USED BY THE COMPANY TO REPAY

  ADVANCES THEN OUTSTANDING AND FOR GENERAL CORPORATE PURPOSES

INCLUDING EXPENDITURES FOR EXTENSIONS, ADDITIONS AND IMPROVEMENTS

  TO ITS TELEPHONE PLANT. 

     "THE PRICES AT WHICH THE SAHRES OF THE NEW COMPANY WILL BE

  OFFERED PURSUANT TO THE OFFERINGS REFERRED TO . . . WILL BE

  DETERMINED BY THE BOARD OF DIRECTORS OF THE COMPANY AT THE TIME

OF EACH OFFERING." 

IT WAS FURTHER STATED THAT SUCH SUBSEQUENT DISTRIBUTIONS WOULD OCCUR
"(AT A TIME OR TIMES RELATED TO ITS (PACIFIC'S) NEED FOR NEW CAPITAL." 
ALTHOUGH THERE IS OTHER LANGUAGE IN THE PLAN THAT MIGHT BE INTERPRETED
AS PREVENTING PACIFIC MANAGEMENT FROM DEALING WITH THE NORTHWEST STOCK
IN ANY WAY INCONSISTENT WITH EVENTUAL SALE TO PACIFIC SHAREHOLDERS,
THERE IS OBVIOUSLY NO PROMISE TO SELL ANY PARTICULAR AMOUNT OF STOCK,
AT ANY PARTICULAR TIME, AT ANY PARTICULAR PRICE.  IF THE 1961
DISTRIBUTION PLAYED A PART IN WHAT LATER PROVED TO BE A TOTAL
DIVESTITURE OF THE NORTHWEST STOCK, IT WAS NOT, IN 1961, EITHER A TOTAL
DIVESTITURE OR A STEP IN A PLAN OF TOTAL DIVESTITURE. 

ACCORDINGLY, WE HOLD THAT THE TAXPAYERS, HAVING EXERCISED RIGHTS TO
PURCHASE SHARES OF NORTHWEST FROM PACIFIC IN 1961, MUST RECOGNIZE
ORDINARY INCOME IN THAT YEAR IN THE AMOUNT OF THE DIFFERENCE BETWEEN
$16 PER SHARE AND THE FAIR MARKET VALUE OF A SHARE OF NORTHWEST COMMON
AT THE MOMENT THE RIGHTS WERE EXERCISED. 

THE SECOND QUESTION PRESENTED BY THE PETITION IN NO. 760, WHETHER
THE $6.36 RECEIVED BY TAXPAYERS GORDON UPON THE SALE OF FOUR RIGHTS WAS
TAXABLE AS ORDINARY INCOME, AS A CAPITAL GAIN, OR NOT AT ALL, DOES NOT
REQUIRE EXTENDED DISCUSSION IN LIGHT OF OUR VIEW UPON THE FIRST
QUESTION.  SINCE RECEIPT AND EXERCISE OF THE RIGHTS WOULD HAVE PRODUCED
ORDINARY INCOME, RECEIPT AND SALE OF THE RIGHTS, CONSTITUTING MERELY AN
ALTERNATIVE ROUTE TO REALIZATION, ALSO PRODUCED INCOME TAXABLE AT
ORDINARY RATES.  HELVERING V. HORST, 311 U.S. 112; GIBSON V.
COMMISSIONER, 133 F.2D 308 (C.A.2D CIR.). 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IS
REVERSED.  THE JUSTMENT OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT
IS AFFIRMED. 

       IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

/1A/  TOGETHER WITH NO. 781, BAAN ET UX. V. COMMISSIONER OF INTERNAL
REVENUE, ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT. 

/1/  THE RECORD INDICATES THAT PACIFIC'S ATTORNEYS HAD ADVISED THAT
IF PACIFIC DISTRIBUTED THE NORTHWEST SHARES WITHOUT PAYMENT OF
CONSIDERATION BY PACIFIC'S SHAREHOLDERS, THE DISTRIBUTION WOULD HAVE TO
BE CHARGED TO EARNED SURPLUS; THE ATTORNEYS FURTHER ADVISED THAT
PACIFIC HAD INSUFFICIENT EARNED SURPLUS FOR THIS PURPOSE, AND THAT IF
THIS DIFFICULTY WERE AVOIDED BY CREATION OF A REDUCTION SURPLUS, THE
REDUCTION SURPLUS WOULD, UNDER CALIFORNIA LAW, HAVE TO BE USED FIRST TO
REDEEM PACIFIC'S PREFERRED SHARES. 

/2/  SECTION 301(A) PROVIDES AS FOLLOWS: 

"EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER, A DISTRIBUTION OF
PROPERTY (AS DEFINED IN SECTION 317(A) MADE BY A CORPORATION TO A
SHAREHOLDER WITH RESPECT TO ITS STOCK SHALL BE TREATED IN THE MANNER
PROVIDED IN SUBSECTION (C)." 

SECURITIES, AND ANY OTHER PROPERTY . . . "  SECTION 301(C) PROVIDES
THAT THE "PORTION OF THE DISTRIBUTION WHICH IS A DIVIDEND (AS DEFINED
IN SECTION 316) SHALL BE INCLUDED IN GROSS INCOME."  SECTION 316 SAYS
THAT "THE TERM 'DIVIDEND' MEANS ANY DISTRIBUTION OF PROPERTY MADE BY A
CORPORATION TO ITS SHAREHOLDERS-- (1) OUT OF ITS EARNINGS NAD PROFITS
ACCUMULATED AFTER FEBRUARY 28, 1913, OR . . . " 

/3/  SECTION 316(A) PROVIDES IN PART AS FOLLOWS: "EXCEPT AS
OTHERWISE PROVIDED IN THIS SUBTITLE, EVERY DISTRIBUTION IS MADE OUT OF
EARNINGS AND PROFITS TO THE EXTENT THEREOF . . . " 

/4/  SEE, E.G., CHOATE V. COMMISSIONER, 129 F.2D 684 (C.A.2D CIR.).
IN PALMER V. COMMISSIONER, 302 U.S. 63, 69, THIS COURT SAID: "WHILE A
SALE OF CORPORATE ASSETS TO STOCKHOLDERS IS, IN A LITERAL SENSE, A
DISTRIBUTION OF ITS PROPERTY, SUCH A TRANSACTION DOES NOT NECESSARILY
FALL WITHIN THE STATUTORY DEFINITION OF A DIVIDEND.  FOR A SALE TO
STOCKHOLDERS MAY NOT RESULT IN ANY DIMUNUTION OF ITS NET WORTH AND IN
THAT CASE CANNOT RESULT IN ANY DISTRIBUTION OF ITS PROFITS. 

"ON THE OTHER HAND SUCH A SALE, IF FOR SUBSTANTIALLY LESS THAN THE
VALUE OF THE PROPERTY SOLD, MAY BE AS EFFECTIVE A MEANS OF DISTRIBUTING
PROFITS AMONG STOCKHOLDERS AS THE FORMAL DECLARATION OF A DIVIDEND." 
IN PALMER, RIGHTS WERE DISTRIBUTED ENTITLING SHAREHOLDERS TO PURCHASE
FROM THE CORPORATION SHARES OF STOCK IN ANOTHER CORPORATION.  FINDING
THAT THE SALES PRICE REPRESENTED THE REASONABLE VALUE OF THE SHARES AT
THE TIME THE CORPORATION COMMITTED ITSELF TO SELL THEM, THIS COURT
FOUND NO DIVIDEND.  IT HELD THAT THE MERE ISSUE OF RIGHTS WAS NOT A
DIVIDEND.  IT HAS NOT, HOWEVER, BEEN AUTHORITATIVELY SETTLED WHETHER AN
ISSUE OF RIGHTS TO PURCHASE AT LESS THAN FAIR MARKET VALUE ITSELF
CONSTITUTES A DIVIDEND, OR THE DIVIDEND OCCURS ONLY ON THE ACTUAL
PURCHASE.  IN THE PRESENT CASE THIS NEED NOT BE DECIDED. 

/5/  IT IS IMPORTANT TO BEGIN FROM THIS PREMISE.  IN OUR VIEW, THE
COURT OF APPEALS FOR THE SECONDCIRCUIT ERRIED IN ITS APPROACH TO THE
SEC. 355 PROBLEM BECAUSE IT ASSUJED, AT THE OUTSET, THAT THE
COMMISSIONER ESSENTIALLY SOUGHT TO TAX A TRANSACTION THAT BROUGHT NO
"INCOME" TO PACIFIC SHAREHOLDERS.  WHETHER THE SHAREHOLDERS RECEIVED
INCOME, HOWEVER, CANNOT IN PRACTICE BE DETERMINED IN THE ABSTRACT,
BEFORE LOOKING AT SEC. 355. 

ANY COMMON SHAREHOLDER IN SOME SENSE "OWNS" A FRACTION OF THE ASSETS
OF THE CORPORATION IN WHICH HE HOLDS STOCK, INCLUDING THOSE ASSETS THAT
REFLECT ACCUMULATED CORPORATE EARNINGS.  EARNINGS ARE NOT TAXED TO THE
SHAREHOLDER WHEN THEY ACCRUE TO THE CORPORATION, BUT INSTEAD WHEN THEY
ARE PASSED TO SHAREHOLDERS INDIVIDUALLY THROUGH DIVIDENDS. 
CONSEQUENTLY IT DOES NOT HELP TO NOTE, AS THE SECOND CIRCUIT HERE DID,
THAT THE DISTRIBUTION OF NORTHWEST STOCK MERELY CHANGED THE FORM OF
OWNERSHIP THAT PACIFIC'S SHAREHOLDERS ENJOYED AND DID NOT INCREASE
THEIR WEALTH.  THIS IS ONLY VERY ROUGHLY TRUE AT BEST, BUT IN THE ROUGH
SENSE IN WHICH IT IS HERE TRUE, IT IS TRUE OF ANY DIVIDEND.  THE
QUESTION IS NOT WHETHER A SHAREHOLDER ENDS UP WITH "MORE" BUT WHETHER
THE CHANGE IN THE FORM OF HIS OWNERSHIP REPRESENTS A TRANSFER TO HIM,
BY THE CORPORATION, OF ASSETS REFLECTING ITS ACCUMULATED EARNINGS AND
PROFITS. 

THERE MAY BE A GENUINE THEORETICAL DIFFERENCE BETWEEN A CHANGE IN
FORM REPRESENTING A MERE CORPORATE FISSION, SEPARATING WHAT THE
SHAREHOLDER OWNS INTO TWO SMALLER BUT ESSENTIALLY SIMILAR PARTS, AND A
CHANGE IN FORM REPRESENTING A DIVIDEND, SEPARATING WHAT A SHAREHOLDER
OWNS QUA SHAREHOLDER FROM WHAT HE OWNS AS AN INDIVIDUAL.  THIS
DIFFERENCE, HOWEVER, MUST BE DEFINED BY OBJECTIVELY WORKABLE TESTS,
SUCH AS CONGRESS SUPPLIED IN SEC. 355.  NEITHER THE SECOND CIRCUIT NOR
THE TAXPAYERS HAVE SUGGESTED ANY OTHER WAY OF IDENTIFYING A TRUE
FISSION. 

/6/  SEC. 355.  DISTRIBUTION OF STOCK AND SECURITIES OF A CONTROLLED
CORPORATION. 

(A) EFFECT ON DISTRIBUTEES. 

(1) GENERAL RULE. 

IF-- 

(A) A CORPORATION (REFERRED TO IN THIS SECTION AS THE "DISTRIBUTING
CORPORATION")-- 

(I) DISTRIBUTES TO A SHAREHOLDER, WITH RESPECT TO ITS STOCK, OR 

(II) DISTRIBUTES TO A SECURITY HOLDER, IN EXCHANGE FOR ITS
SECURITIES, SOLELY STOCK OR SECURITIES OF A CORPORATION (REFERRED TO IN
THIS SECTION AS "CONTROLLED CORPORATION") WHICH IT CONTROLS IMMEDIATELY
BEFORE THE DISTRIBUTION, 

(B) THE TRANSACTION WAS NOT USED PRINCIPALLY AS A DEVICE FOR THE
DISTRIBUTION OF THE EARNINGS AND PROFITS OF THE DISTRIBUTING
CORPORATION OR THE CONTROLLED CORPORATION OR BOTH (BUT THE MERE FACT
THAT SUBSEQUENT TO THE DISTRIBUTION STOCK OR SECURITIES IN ONE OR MORE
OF SUCH CORPORATIONS ARE SOLD OR EXCHANGED BY ALL OR SOME OF THE
DISTRIBUTEES (OTHER THAN PURSUANT TO AN ARRANGEMENT NEGOTIATED OR
AGREED UPON PRIOR TO SUCH DISTRIBUTION) SHALL NOT BE CONSTRUED TO MEAN
THAT THE TRANSACTION WAS USED PRINCIPALLY AS SUCH A DEVICE), 

(C) THE REQUIREMENTS OF SUBSECTION (B) (RELATING TO ACTIVE BUSINESS)
ARE SATISFIED, AND 

(D) AS PART OF THE DISTRIBUTION, THE DISTRIBUTING CORPORATION
DISTRIBUTES-- 

(I) ALL OF THE STOCK AND SECURITIES IN THE CONTROLLED CORPORATION
HELD BY IT IMMEDIATELY BEFORE THE DISTRIBUTION, OR 

(II) AN MOUNT OF STOCK IN THE CONTROLLED CORPORATION CONSTITUTING
CONTROL WITHIN THE MEANING OF SECTION 368(C), AND IT IS ESTABLISHED TO
THE SATISFACTION OF THE SECRETARY OF HIS DELEGATE THAT THE RETENTION BY
THE DISTRIBUTING CORPORATION OF STOCK (OR STOCK AND SECURITIES) IN THE
CONTROLLED CORPORATION WAS NOT IN PURSUANCE OF A PLAN HAVING AS ONE OF
ITS PRINCIPAL PURPOSES THE AVOIDANCE OF FEDERAL INCOME TAX, THEN NO
GAIN OR LOSS SHALL BE RECOGNIZED TO (AND NO AMOUNT SHALL BE INCLUDIBLE
IN THE INCOME OF) SUCH SHAREHOLDER OR SECURITY HOLDER ON THE RECEIPT OF
SUCH STOCK OR SECURITIES. 

(2) NON PRO RATA DISTRIBUTIONS, ETC. 

PARAGRAPH (1) SHALL BE APPLIED WITHOUT REGARD TO THE FOLLOWING: 

(A) WHETHER OR NOT THE DISTRIBUTION IS PRO RATE WITH RESPECT TO ALL
OF THE SHAREHOLDERS OF THE DISTRIBUTING CORPORATION, 

(B) WHETHER OR NOT THE SHAREHOLDER SURRENDERS STOCK IN THE
DISTRIBUTING CORPORATION, AND 

(C) WHETHER OR NOT THE DISTRIBUTION IS IN PURSUANCE OF A PLAN OF
REORGANIZATION (WITHIN THE MEANING OF SECTION 368(A)(1)(D)). 

(3) LIMITATION. 

PARAGRAPH (1) SHALL NOT APPLY IF-- 

(A) THE PRINCIPAL AMOUNT OF THE SECURITIES IN THE CONTROLLED
CORPORATION WHICH ARE RECEIVED EXCEEDS THE PRINCIPAL AMOUNT OF THE
SECURITIES WHICH ARE SURRENDERED IN CONNECTION WITH SUCH DISTRIBUTION,
OR     (B) SECURITIES IN THE CONTROLLED CORPORATION ARE RECEIVED AND NO
SECURITIES ARE SURRENDERED IN CONNECTION WITH SUCH DISTRIBUTION.  FOR
PURPOSES OF THIS SECTION (OTHER THAN PARAGRAPH (1)(D) OF THIS
SUBSECTION) AND SO MUCH OF SECTION 356 AS RELATES TO THIS SECTION,
STOCK OF A CONTROLLED CORPORATION ACQUIRED BY THE DISTRIBUTING
CORPORATION BY REASON OF ANY TRANSACTION WHICH OCCURS WITHIN 5 YEARS OF
THE DISTRIBUTION OF SUCH STOCK AND IN WHICH GAIN OR LOSS WAS RECOGNIZED
IN WHOLE OR IN PART, SHALL NOT BE TREATED AS STOCK OF SUCH CONTROLLED
CORPORATON, BUT AS OTHER PROPERTY. 

(4) CROSS REFERENCE.     FOR TREATMENT OF THE DISTRIBUTION IF ANY
PROPERTY IS RECEIVED WHICH IS NOT PERMITTED TO BE RECEIVED UNDER THIS
SUBSECTION (INCLUDING AN EXCESS PRINCIPAL AMOUNT OF SECURITIES RECEIVED
OVER SECURITIES SURRENDERED), SEE SECTION 356. 

(B) REQUIREMENTS AS TO ACTIVE BUSINESS. 

(1) IN GENERAL. 

SUBSECTION (A) SHALL APPLY ONLY IF EITHER-- 

(A) THE DISTRIBUTING CORPORATION, AND THE CONTROLLED CORPORATION
(OR, IF STOCK OF MORE THAN ONE CONTROLLED CORPORATION IS DISTRIBUTED,
EACH OF SUCH CORPORATIONS), IS ENGAGED IMMEDIATELY AFTER THE
DISTRIBUTION IN THE ACTIVE CONDUCT OF A TRADE OR BUSINESS, OR 

(B) IMMEDIATELY BEFORE THE DISTRIBUTION, THE DISTRIBUTING
CORPORATION HAD NO ASSETS OTHER THAN STOCK OR SECURITIES IN THE
CONTROLLED CORPORATIONS AND EACH OF THE CONTROLLED CORPORATIONS IS
ENGAGED IMMEDIATELY AFTER THE DISTRIBUTION IN THE ACTIVE CONDUCT OF A
TRADE OR BUSINESS. 

(2) DEFINITION. 

FOR PURPOSES OF PARAGRAPH (1), A CORPORATION SHALL BE TREATED AS
ENGAGED IN THE ACTIVE CONDUCT OF A TRADE OR BUSINESS IF AND ONLY IF-- 

(A) IT IS ENGAGED IN THE ACTIVE CONDUCT OF A TRADE OR BUSINESS, OR
SUBSTANTIALLY ALL OF ITS ASSETS CONSIST OF STOCK AND SECURITIES OF A
CORPORATION CONTROLLED BY IT (IMMEDIATELY AFTER THE DISTRIBUTION) WHICH
IS SO ENGAGED, 

(B) SUCH TRADE OR BUSINESS HAS BEEN ACTIVELY CONDUCTED THROUGHOUT
THE 5-YEAR PERIOD ENDING ON THE DATE OF THE DISTRIBUTION, 

(C) SUCH TRADE OR BUSINESS WAS NOT ACQUIRED WITHIN THE PERIOD
DESCRIBED IN SUBPARAGRAPH (B) IN A TRANSACTION IN WHICH GAIN OR LOSS
WAS RECOGNIZED IN WHOLE OR IN PART, AND 

(D) CONTROL OF A CORPORATION WHICH (AT THE TIMES OF ACQUISITION OF
CONTROL) WAS CONDUCTING SUCH TRADE OR BUSINESS-- (I) WAS NOT ACQUIRED
DIRECTLY (OR THROUGH ONE OR MORE CORPORATIONS) BE ANOTHER CORPORATION
WITHIN THE PERIOD DESCRIBED IN SUBPARAGRAPH (B), OR 

(II) WAS SO ACQUIRED BY ANOTHER CORPORATION WITH SUCH PERIOD, BUT
SUCH CONTROL WAS SO ACQUIRED ONLY BY REASON OF TRANSACTIONS IN WHICH
GAIN OR LOSS WAS NOT RECOGNIZED IN WHOLE OR IN PART, OR ONLY BY REASON
OF SUCH TRANSACTIONS COMBINED WITH ACQUISITIONS BEFORE THE BEGINNING OF
SUCH PERIOD. 

/7/  THE COMMISSIONER CONTENDS, FIRST, THAT PACIFIC DID NOT
DISTRIBUTE "SOLELY STOCK OR SECURITIES" AS REQUIRED BY SEC.
355(A)(1)(A), BECAUSE IT DISTRIBUTED RIGHTS RATHER THAN STOCK.  HE
CONTENDS, SECOND, THAT PACIFIC DID NOT DISTRIBUTE THE NORTHWEST STOCK
"TO A SHAREHOLDER WITH RESPECT TO ITS STOCK" AS REQUIRED BY SEC.
355(A)(1)(A)(I), BECAUSE IT DID NOT DISTRIBUTE THE STOCK TO
SHAREHOLDERS BUT SOLD IT TO HOLDERS OF TRANSFERABLE RIGHTS, FOR CASH
CONSIDERATION.  HE CONTENDS, THIRD, THAT NORTHWEST DID NOT MEET THE
QUANTITY REQUIREMENTS OF SEC. 355(A)(1)(D) BECAUSE IT PARTED WITH ONLY
57% OF THE STOCK IN 1961. 

ANY ONE OF THESE ARGUMENTS, IF ESTABLISHED, WOULD SUPPORT THE RESULT
THE COMMISSIONER SEEKS.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
PERFORCE REJECTED ALL THREE.  THE COURT OF APPEALS FOR THE NINTH
CIRCUIT ACCEPTED ALL THREE.  WE REACH ONLY THE LAST. 

/8/  IN THE TAX COURT, THE COMMISSIONER DID NOT ARGUE THAT PACIFIC
HAD FAILED TO MEET THE REQUIREMENT THAT IT DISTRIBUTE AT LEAST 80% OF
THE NORTHWEST STOCK, BUT RESTED UPON HIS OTHER ARGUMENTS AGAINST
APPLYING SEC. 355.  WHEN THE TAX COURT REJECTED THESE ARGUMENTS, THE
COMMISSIONER RAISED THE 80% QUESTION, AS WELL AS HIS OTHER ARGUMENTS IN
BOTH COURTS OF APPEALS.  BOTH CONSIDERED THE POINT ON THE MERITS,
DIVIDING ON IT AS ON THE OTHERS.  SINCE THE GENERAL ISSUE OF THE
APPLICABILITY OF SEC. 355 HAS BEEN IN THE CASE SINCE ITS INCEPTION,
TAXPAYERS DO NOT CONTEND THAT THE 80% QUESTION IS NOT PROPERLY BEFORE
THIS COURT.  SINCE THE RECORD LEAVES NO DISPUTED ISSUE OF FACT WITH
RESPECT TO THIS QUESTION, WE FIND IT PROPER TO DECIDE IT HERE WITHOUT
REFERENCE TO A TRIER OF FACT. 

/9/  382 F.2D 499, 507. 

/10/  SEE BURNET V. SANFORD & BROOKS CO., 282 U.S. 359, 363-365. 

/11/  THE COMMISSIONER CONTENDS THAT A MULTISTEP DIVESTITURE
PRESENTS SPECIAL PROBLEMS IN PREVENTING BAILOUTS OF EARNINGS AND
PROFITS.  THE SECOND CIRCUIT, RECOGNIZING SUCH POTENTIAL PROBLEMS, HELD
THAT THEY CAN BE DEALT WITH UNDER SEC. (A)(1)(B), WHICH PROVIDES THAT
NONRECOGNITION SHALL RESULT ONLY WHEN IT APPEARS THAT "THE TRANSACTION
WAS NOT USED PRINCIPALLY AS A DEVICE FOR THE DISTRIBUTION OF THE
EARNINGS AND PROFITS OF THE DISTRIBUTING CORPORATION OR THE CONTROLLED
CORPORATION OR BOTH . . . " CONGRESS MAY, OF COURSE, HAVE CHOSEN NOT TO
LEAVE PROBLEMS CREATED BY MULTISTEP DIVESTITURES TO SPECIFIC
ADJUDICATION UNDER THIS "DEVICE" SUBSECTION, BUT TO REQUIRE BOTH A
UNITARY DIVESTITURE AND SATISFACTION OF THE "DEVICE" REQUIREMENT. 
WHETHER SEC. (A)(1)(D) WOULD PROHIBIT OR LIMIT A DIVESTITURE OF CONTROL
COMMITTED FROM THE OUTSET BUT SPREAD OVER A SERIES OF STEPS IS A
PROBLEM WE NEED NOT REACH. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR PETITIONER IN NO.
760 AND FOR RESPONDENT IN NO. 781.  WITH HIM ON THE BRIEFS WERE
ASSISTANT ATTORNEY GENERAL ROGOVIN, HARRIS WEINSTEIN, GILBERT E.
ANDREWS, AND MARTIN T. GOLDBLUM. 

HARRY R. HORROW ARGUED THE CAUSE FOR RESPONDENTS IN NO. 760 AND FOR
PETITIONERS IN NO. 781.  WITH HIM ON THE BRIEFS WERE FRANCIS N.
MARSHALL AND STEPHEN J. MARTIN. 
..END :










FEDERATION OF MUSICIANS V. CARROLL, 391 U.S. 99 


       AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES AND

           CANADA ET AL V. CARROLL ET AL.

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 309.  ARGUED MARCH 4, 1968.-- DECIDED MAY 20, 1968. 

           /1A/ 


RESPONDENTS IN NO. 309, FOUR ORCHESTRA LEADERS, BROUGHT THIS ACTION
FOR INJUNCTIVE RELIEF AND TREBLE DAMAGES, ALLEGING THAT PETITIONERS IN
NO. 309, AN INTERNATIONAL MUSICIANS UNION AND ONE OF ITS LOCALS,
VIOLATED SECS. 1 AND 2 OF THE SHERMAN ACT.  THE CHALLENGED PRACTICES
MAINLY CONCERNED "CLUB-DATE" ENGAGEMENTS WHERE AN ORCHESTRA THROUGH
ARRANGEMENT WITH THE PURCHASER OF THE MUSIC MADE BY A MUSICIAN OR
BOOKING AGENT PLAYS FOR A SPECIAL OCCASION.  THE MUSICIAN MAKING THE
ARRANGEMENTS ASSUMES THE ROLE OF "LEADER," PERFORMS HIMSELF (OR
DESIGNATES A "SUBLEADER"), AND ENGAGES A NUMBER OF INSTRUMENTALISTS
("SIDEMEN").  PETITIONERS' PRACTICES RESULT FROM UNILATERALLY ADOPTED
UNION BYLAWS AND REGULATIONS WHEREBY PETITIONERS WITH RESPECT TO
ORCHESTRA LEADERS:  PRESSURE THEM TO BECOME UNION MEMBERS; INSIST UPON
A CLOSED SHOP; REFUSE TO BARGAIN COLLECTIVELY; IMPOSE MINIMUM
EMPLOYMENT QUOTAS; REQUIRE THEM TO USE A SPECIAL ("FORM B") CONTRACT OR
(WHERE LOCAL 802 IS CONCERNED) TO AGREE TO ALL UNION REGULATIONS AND
PAY MINIMUM WAGES; REQUIRE THEM TO FAVOR LOCAL MUSICIANS BY MAKING THEM
PAY HIGHER WAGES TO MUSICIANS FROM OUTSIDE A LOCAL'S JURISDICTION;
REQUIRE THEM TO CHARGE MUSIC PURCHASERS MINIMUM PRICES PRESCRIBED IN A
"PRICE LIST BOOKLET" (WHICH ARE THE TOTAL OF:  THE MINIMUM WAGE SCALES
FOR SIDEMEN, A "LEADER'S FEE" WHICH IS DOUBLE THE SIDEMAN'S SCALE WHEN
FOUR OR MORE MUSICIANS COMPOSE THE ORCHESTRA, AND AN ADDITIONAL 8%; AND
A SUBLEADER WITH FOUR OR MORE MUSICIANS MUST BE PAID 1 1/2 TIMES THE
WAGE SCALE OUT OF THE LEADER'S FEE); PREVENT THEM FROM ACCEPTING
ENGAGEMENTS FROM OR MAKING PAYMENTS TO CATERERS; AND ALLOW THEM TO
ACCEPT ENGAGEMENTS BY BOOKING AGENTS ONLY IF UNION-LICENSED. 
RESPONDENTS CONTENDED THAT PETITIONERS' INVOLVEMENT OF THE ORCHESTRA
LEADERS IN THESE PRACTICES CREATED A CONSPIRACY WITH A "NON-LABOR"
GROUP.  THE DISTRICT COURT DISMISSED THE ACTION ON THE MERITS, HOLDING
THAT THE CHALLENGED PRACTICES "COME WITHIN THE DEFINITION OF THE TERM
'LABOR DISPUTE' AND ARE EXEMPT FROM THE ANTITRUST LAWS" UNDER THE
NORRIS-LAGUARDIA ACT.  THE COURT OF APPEALS, THOUGH OTHERWISE AFFIRMING
THE DISMISSAL, REVERSED ON THE ALLEGED PRICE-FIXING ISSUE, HOLDING THAT
THE "PRICE LIST" WAS NOT WITHIN THE LABOR EXEMPTION AND THAT ITS
ESTABLISHMENT OF PRICE FLOORS CONSTITUTED A PER SE VIOLATION OF THE
SHERMAN ACT.  HELD:  PETITIONERS' INVOLVEMENT OF THE ORCHESTRA LEADERS
IN THE PROMULGATION AND ENFORCEMENT OF THE CHALLENGED REGULATIONS AND
BYLAWS DOES NOT CREATE A COMBINATION OR CONSPIRACY IN VIOLATION OF THE
SHERMAN ACT BUT FALLS WITHIN THE EXEMPTION OF THE NORRIS-LAGUARDIA ACT
SINCE THE ORCHESTRA LEADERS WERE A "LABOR" GROUP AND PARTIES TO A
"LABOR DISPUTE."  PP. 102, 105-114. 

(A) THE DISTRICT COURT CORRECTLY STATED THE CRITERION FOR
DETERMINING THAT THE ORCHESTRA LEADERS WERE A "LABOR" GROUP AND PARTIES
TO A "LABOR DISPUTE" AS THE "PRESENCE OF A JOB OR WAGE COMPETITION OR
SOME OTHER ECONOMIC RELATIONSHIP AFFECTING LEGITIMATE UNION INTERESTS
BETWEEN THE UNION MEMBERS AND THE INDEPENDENT CONTRACTORS.  IF SUCH A
RELATIONSHIP EXISTED THE INDEPENDENT CONTRACTORS WERE A 'LABOR GROUP'
AND PARTY TO A LABOR DISPUTE UNDER THE NORRIS-LAGUARDIA ACT."  241
F.SUPP.,AT 887.  PP. 105-106. 

(B) THE ALLOWABLE AREA OF UNION ACTIVITY UNDER THE NORRIS-LAGUARDIA
ACT IS NOT RESTRICTED TO AN IMMEDIATE EMPLOYER-EMPLOYEE RELATION.  P.
106. 

(C) WITH RESPECT TO PETITIONERS' PRACTICES (OTHER THAN THOSE
DESCRIBED IN (D) AND (E), INFRA), THE DISTRICT COURT FOUND THAT THE
ORCHESTRA LEADERS PERFORMED WORK AND FUNCTIONS ACTUALLY OR POTENTIALLY
AFFECTING THE HOURS, WAGES, JOB SECURITY, AND WORKING CONDITIONS OF
PETITIONERS' MEMBERS; AND THESE FINDINGS, WHICH WERE SUBSTANTIALLY
SUPPORTED BY THE EVIDENCE, WARRANTED THE CONCLUSION THAT SUCH PRACTICES
WERE LAWFUL.  PP. 106-107. 

(D) THE "PRICE LIST" WAS LAWFUL SINCE ITS PRICE FLOORS WERE
EXPRESSLY DESIGNED TO AND DID FUNCTION AS A PROTECTION OF THE WAGE
SCALES OF SIDEMEN AND SUBLEADERS, WHO ARE EMPLOYEES ON CLUB-DATES,
AGAINST THE JOB AND WAGE COMPETITION OF THE LEADERS.  TEAMSTERS UNION
V. OLIVER, 358 U.S. 283.  PP. 107-113. 

(E) THE CATERER AND BOOKING AGENT RESTRICTIONS, WHICH WERE AS
CLOSELY CONNECTED WITH THE SUBJECT OF WAGES AS WERE THE PRICE FLOORS,
WERE ALSO LAWFUL.  PP. 113-114. 

372 F.2D 155, VACATED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS ACTION FOR INJUNCTIVE RELIEF AND TREBLE DAMAGES ALLEGING
VIOLATIONS OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. 1
AND 2, WAS BROUGHT IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AGAINST THE PETITIONERS IN NO. 309, AMERICAN FEDERATION OF
MUSICIANS AND ITS LOCAL 802.  /1/  THE QUESTION IS WHETHER UNION
PRACTICES OF THE PETITIONERS AFFECTING ORCHESTRA LEADERS BIOLATE THE
SHERMAN ACT AS ACTIVITIES IN COMBINATION WITH A "NON-LABOR" GROUP, OR
ARE EXEMPTED BY THE NORRIS-LAGUARDIA ACT AS ACTIVITIES AFFECTING A
"LABOR" GROUP WHICH IS PARTY TO A "LABOR DISPUTE."  /2/  AFTER A FIVE
WEEK TRIAL WITHOUT A JURY THE DISTRICT COURT DISMISSED THE ACTION ON
THE MERITS, HOLDING THAT ALL OF THE PETITIONERS' PRACTICES BROUGHT IN
QUESTION "COME WITHIN THE DEFINITION OF THE TERM 'LABOR DISPUTE'  . . .
AND ARE EXEMPT FROM THE ANTITRUST LAWS."  241 F.SUPP.  865, 894.  THE
COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED ON THE ISSUE OF
ALLEGED PRICE FIXING, BUT IN ALL OTHER RESPECTS AFFIRMED THE
DISMISSAL.  372 F.2D 155.  BOTH PARTIES SOUGHT CERTIORARI, IN NO. 309
THE PETITIONERS FROM THE REVERSAL OF THE DISMISSAL IN RESPECT OF
ALLEGED PRICE FIXING, AND IN NO. 310 THE RESPONDENTS FROM THE
AFFIRMANCE OF THE DISMISSAL IN OTHER RESPECTS.  WE GRANTED BOTH
PETITIONERS, 389 U.S. 817.  WE HOLD THAT THE DISTRICT COURT PROPERLY
DISMISSED THE ACTION ON THE MERITS, AND THAT THE COURT OF APPEALS
SHOULD HAVE AFFIRMED THE DISTRICT COURT JUDGMENT IN ITS ENTIRETY. 

        I. 

THE PETITIONERS ARE LABOR UNIONS OF PROFESSIONAL MUSICIANS.  THE
UNION PRACTICES QUESTIONED HERE ARE MAINLY THOSE APPLIED TO "CLUB-DATE"
ENGAGEMENTS OF UNION MEMBERS.  THESE ARE ONE-TIME ENGAGEMENTS OF
ORCHESTRAS TO PROVIDE MUSIC, USUALLY FOR ONLY A FEW HOURS, AT SUCH
SOCIAL EVENTS AS WEDDINGS, FASHION SHOWS, COMMENCEMENTS, AND THE LIKE. 
/3/  THE PURCHASER OF THE MUSIC, E.G., THE FATHER OF THE BRIDE, THE
CHAIRMAN OF THE EVENTS, ETC., MAKES ARRANGEMENTS WITH A MUSICIAN, OR
WITH A MUSICIAN'S BOOKING AGENT, FOR AN ORCHESTRA OF A CONDUCTOR AND A
GIVEN NUMBER OF INSTRUMENTALISTS, OR "SIDEMEN," AT A SPECIFIED TIME AND
PLACE.  THE MUSICIAN IN SUCH CASES ASSUMES THE ROLE OF "LEADER" OF THE
ORCHESTRA, OBTAINS THE "SIDEMEN" AND ATTENDS TO THE BOOKKEEPING AND
OTHER DETAILS OF THE ENGAGEMENT.  USUALLY THE "LEADER" PERFORMS WITH
THE ORCHESTRA, SOMETIMES ONLY CONDUCTING BUT OFTEN ALSO PLAYING AN
INSTRUMENT.  WHEN HE DOES NOT PERSONALLY APPEAR, HE DESIGNATES A
"SUBLEADER" WHO CONDUCTS FOR HIM AND OFTEN ALSO PLAYS AN INSTRUMENT. 

A MUSICIAN PERFORMING "CLUB-DATES" MAY PERFORM IN DIFFERENT
CAPACITIES ON THE SAME DAY OR DURING THE SAME WEEK, AT TIMES AS LEADER
AND OTHER TIMES AS SUBLEADER OR SIDEMAN.  THE FOUR RESPONDENTS,
HOWEVER, ARE MUSICIANS WHO USUALLY ACT AS LEADERS AND MAINTAIN OFFICES
AND EMPLOY PERSONNEL TO SOLICIT ENGAGEMENTS THROUGH ADVERTISING AND
PERSONAL CONTACTS.  WHEN TWO OR MORE ENGAGEMENTS ARE ACCEPTED FOR THE
SAME TIME, EACH OF THE RESPONDENTS WILL CONDUCT, AND, EXCEPT RESPONDENT
PETERSON, SOMETIMES PLAY, AT ONE AND DESIGNATE A SUBLEADER TO PERFORM
THE FUNCTIONS OF LEADER AT THE OTHER.  /4/ 

THE FOUR RESPONDENTS WERE MEMBERS OF THE PETITIONER FEDERATION AND
LOCAL 802 WHEN THIS SUIT WAS FILED.  /5/  VIRTUALLY ALL MUSICIANS IN
THE UNITED STATES AND THE GREAT MAJORITY OF THE ORCHESTRA LEADERS ARE
UNION MEMBERS.  THERE ARE NO COLLECTIVE BARGAINING AGREEMENTS IN THE
CLUB-DATE FIELD.  /6/  CLUB-DATE ENGAGEMENTS ARE RIGIDLY REGULATED BY
UNILATERALLY ADOPTED UNION BYLAWS AND REGULATIONS.  UNDER THESE BYLAWS
AND REGULATIONS 

(1) PETITIONERS ENFORCE A CLOSED SHOP AND EXERT VARIOUS PRESSURES
UPON ORCHESTRA LEADERS TO BECOME UNION MEMBERS. 

(2) ORCHESTRA LEADERS MUST ENGAGE A MINIMUM NUMBER OF SIDEMEN FOR
CLUB-DATE ENGAGEMENTS. 

(3) ORCHESTRA LEADERS MUST CHARGE PURCHASERS OF MUSIC MINIMUM PRICES
PRESCRIBED IN A "PRICE LIST BOOKLET."  THE PRICES ARE THE TOTAL OF (A)
THE MINIMUM WAGE SCALES FOR SIDEMEN, (B) A "LEADER'S FEE" WHICH IS
DOUBLE THE SIDEMAN'S SCALE WHEN FOUR OR MORE MUSICIANS COMPOSE THE
ORCHESTRA, AND (C) AN ADDITIONAL 8% TO COVER SOCIAL SECURITY,
UNEMPLOYMENT INSURANCE, AND OTHER EXPENSES.  WHEN THE LEADER DOES NOT
PERSONALLY APPEAR AT AN ENGAGEMENT, BUT DESIGNATES A SUBLEADER AND FOUR
OR MORE MUSICIANS PERFORM, THE LEADER MUST PAY THE SUBLEADER ONE AND
ONE-HALF TIMES THE WAGE SCALE OUT OF HIS "LEADER'S FEE." 

(4) ORCHESTRA LEADERS ARE REQUIRED TO USE A FORM OF CONTRACT, CALLED
THE FORM B CONTRACT, FOR ALL ENGAGEMENTS.  IN THE CLUB-DATE FIELD,
HOWEVER, LOCAL 802 ACCEPTS ASSURANCES THAT THE TERMS OF CLUB-DATE
ENGAGEMENTS COMPLY WITH ALL UNION REGULATIONS AND PROVDE FOR PAYMENT OF
THE MINIMUM WAGE.  UNION BUSINESS AGENTS POLICE COMPLIANCE. 

(5) ADDITIONAL REGULATIONS APPLY TO TRAVELING ENGAGEMENTS.  THE
LEADER OF A TRAVELING ORCHESTRA MUST CHARGE 10% MORE THAN THE MINIMUM
PRICE OF EITHER THE HOME LOCAL OR OF THE LOCAL IN WHOSE TERRITORY THE
ORCHESTRA IS PLAYING, WHICHEVER IS GREATER. 

(6) ORCHESTRA LEADERS ARE PROHIBITED FROM ACCEPTING ENGAGEMENTS FROM
OR MAKING ANY PAYMENTS TO CATERERS. 

(7) ORCHESTRA LEADERS MAY ACCEPT ENGAGEMENTS MADE BY BOOKING AGENTS
ONLY IF THE BOOKING AGENTS HAVE BEEN LICENSED BY THE UNIONS UNDER
STANDARD FORMS OF LICENSE AGREEMENTS PROVIDED BY THE UNIONS. 

THE DISTRICT COURT ASSUMED, AND THE COURT OF APPEALS HELD, THAT
ORCHESTRA LEADERS IN THE CLUB-DATE FIELD ARE EMPLOYERS AND INDEPENDENT
CONTRACTORS.  /7/  RESPONDENTS ARGUE THAT PETITIONERS' INVOLVEMENT OF
THE ORCHESTRA LEADERS IN THE PROMULGATION AND ENFORCEMENT OF THE
CHALLENGED REGULATIONS AND BYLAWS CREATES A COMBINATION OR CONSPIRACY
WITH A "NON-LABOR" GROUP WHICH VIOLATES THE SHERMAN ACT.  ALLEN BRADLEY
CO. V. UNION, 325 U.S. 797, 800; LOS ANGELES MEAT & PROVISION DRIVERS
UNION V. UNITED STATES, 371 U.S. 94; MINE WORKERS V. PENNINGTON, 381
U.S. 657.  BUT THE COURT OF APPEALS CONCURRED IN THE FINDING OF THE
DISTRICT COURT THAT SUCH ORCHESTRA LEADERS, ALTHOUGH DEEMED TO BE
EMPLOYERS AND INDEPENDENT CONTRACTORS, CONSTITUTE NOT A "NON-LABOR"
GROUP BUT A "LABOR" GROUP.  372 F.2D, AT 168.  /8/ 

THE CRITERION APPLIED BY THE DISTRICT COURT IN DETERMINING THAT THE
ORCHESTRA LEADERS WERE A "LABOR" GROUP AND PARTIES TO A "LABOR DISPUTE"
WAS THE "PRESENCE OF A JOB OR WAGE COMPETITION OR SOME OTHER ECONOMIC
INTER-RELATIONSHIP AFFECTING LEGITIMATE UNION INTERESTS BETWEEN THE
UNION MEMBERS AND THE INDEPENDENT CONTRACTORS.  IF SUCH A RELATIONSHIP
EXISTED THE INDEPENDENT CONTRACTORS WERE A 'LABOR GROUP' AND PARTY TO A
LABOR DISPUTE UNDER THE NORRIS-LAGUARDIA ACT."  241 F.SUPP.,AT 887. 
THE COURT OF APPEALS HELD, AND WE AGREE, THAT THIS IS A CORRECT
STATEMENT OF THE APPLICABLE PRINCIPLES.  THE NORRIS-LAGUARDIA ACT TOOK
ALL "LABOR DISPUTES" AS THEREIN DEFINED OUTSIDE THE REACH OF THE
SHERMAN ACT AND ESTABLISHED THAT THE ALLOWABLE AREA OF UNION ACTIVITY
WAS NOT TO BE RESTRICTED TO AN IMMEDIATE EMPLOYER-EMPLOYEE RELATION. 
UNITED STATES V. HUTCHESON, 312 U.S. 219, 229-236; ALLEN BRADLEY CO. V.
UNION, SUPRA, AT 805-806; LOS ANGELES MEAT & PROVISION DRIVERS UNION V.
UNITED STATES, SUPRA, AT 103; MILK WAGON DRIVERS' UNION V. LAKE VALLEY
FARM PRODS., 311 U.S. 91.  "THIS COURT HAS RECOGNIZED THAT A LEGITIMATE
AIM OF ANY NATIONAL LABOR ORGANIZATION IS TO OBTAIN UNIFORMITY OF LABOR
STANDARDS AND THAT A CONSEQUENCE OF SUCH UNION ACTIVITY MAY BE TO
ELIMINATE COMPETITION BASED ON DIFFERENCES IN SUCH STANDARDS."  MINE
WORKERS V. PENNINGTON, 381 U.S. 657, 666. 

THE DISTRICT COURT FOUND THAT THE ORCHESTRA LEADERS PERFORMED WORK
AND FUNCTIONS WHICH ACTUALLY OR POTENTIALLY AFFECTED THE HOURS, WAGES,
JOB SECURITY, AND WORKING CONDITIONS OF PETITIONERS' MEMBERS.  /9/
THESE FINDINGS HAVE SUBSTANTIAL SUPPORT IN THE EVIDENCE AND IN THE
LIGHT OF THE JOB AND WAGE COMPETITION THUS ESTABLISHED, BOTH COURTS
CORRECTLY HELD THAT IT WAS LAWFUL FOR PETITIONERS TO PRESSURE THE
ORCHESTRA LEADERS TO BECOME UNION MEMBERS, LOS ANGELES MEAT DRIVERS,
SUPRA, AND MILK WAGON DRIVERS', SUPRA, TO INSIST UPON A CLOSED SHOP,
UNITED STATES V. AMERICAN FEDERATION OF MUSICIANS, 318 U.S. 741,
AFFIRMING 47 F.SUPP.  304, TO REFUSE TO BARGAIN COLLECTIVELY WITH THE
LEADERS, SEE HUNT V. CRUMBOCH, 325 U.S. 821, TO IMPOSE THE MINIMUM
EMPLOYMENT QUOTAS COMPLAINED OF, UNITED STATES V. AJERICAN FEDERATION
OF MUSICIANS, SUPRA, TO REQUIRE THE ORCHESTRA LEADERS TO USE THE FORM B
CONTRACT, SEE TEAMSTERS UNION V. OLIVER, 362 U.S. 605 (OLIVER II), AND
TO FAVOR LOCAL MUSICIANS BY REQUIRING THAT HIGHER WAGES BE PAID TO
MUSICIANS FROM OUTSIDE A LOCAL'S JURISDICTION, RAMBUSCH DECORATING CO.
V. BROTHERHOOD OF PAINTERS, 105 F.2D 134. 

THE DISTRICT COURT ALSO SUSTAINED THE LEGALITY OF THE "PRICE LIST"
STATING, "IN VIEW OF THE COMPETITION BETWEEN LEADERS AND SIDEMEN AND
SUBLEADERS WHICH UNDERLIES THE FINDING THAT THE LEADERS ARE A LABOR
GROUP, THE UNION HAS A LEGITIMATE INTEREST IN FIXING MINIMUM FEES FOR A
PARTICIPATING LEADER AND MINIMUM ENGAGEMENT PRICES EQUAL TO THE TOTAL
MINIMUM WAGES OF THE SIDEMEN AND THE PARTICIPATING LEADER."  241
F.SUPP.,AT 890.  THE COURT OF APPEALS, ONE JUDGE DISSENTING, DISAGREED
THAT THE "PRICE LIST" WAS WITHIN THE LABOR EXEMPTION, STATING THAT "THE
UNIONS' ESTABLISHMENT OF PRICE FLOORS ON ORCHESTRAL ENGAGEMENTS
CONSTITUTES A PER SE VIOLATION OF THE SHERMAN ACT."  372 F.2D,AT 165. 
THE PREMISE OF THE MAJORITY'S CONCLUSION WAS THAT THE "PRICE LIST" WAS
DISQUALIFIED FOR THE EXEMPTION BECAUSE ITS CONCERN IS "PRICES" AND NOT
"WAGES."  BUT THIS OVERLOOKS THE NECESSITY OF INQUIRY BEYOND THE FORM. 
MR. JUSTICE WHITE'S OPINION IN MEAT CUTTERS V. JEWEL TEA, 381 U.S. 676,
690, N. 5, EMPHASIZED THAT "(THE CRUCIAL DETERMINANT IS NOT THE FORM OF
THE AGREEMENT-- E.G., PRICES OR WAGES-- BUT ITS RELATIVE IMPACT ON THE
PRODUCT MARKET AND THE INTERSTS OF UNION MEMBERS."  IT IS THEREFORE NOT
DISPOSITIVE OF THE QUESTION THAT PETITIONERS' REGULATION IN FORM
ESTABLISHES PRICE FLOORS.  THE CRITICAL INQUIRY IS WHETHER THE PRICE
FLOORS IN ACTUALITY OPERATE TO PROTECT THE WAGES OF THE SUBLEADER AND
SIDEMEN.  THE DISTRICT COURT FOUND THAT THE PRICE FLOORS WERE EXPRESSLY
DESIGNED TO AND DID FUNCTION AS A PROTECTION OF SIDEMEN'S AND
SUBLEADERS' WAGE SCALES AGAINST THE JOB AND WAGE COMPETITION OF THE
LEADERS.  THE COURT SAID: 

     "AS A CONSEQUENCE OF THIS RELATIONSHIP, THE PRACTICES OF

  (ORCHESTRA LEADERS) WHEN THEY LEAD AND PLAY MUST HAVE A VITAL

  EFFECT ON THE WORKING CONDITIONS OF THE NON-LEADER MEMBERS OF THE

UNION.  IF THEY UNDERCUT THE UNION WAGE SCALE OR DO NOT ADHERE TO

  UNION REGULATIONS REGARDING HOURS OR OTHER WORKING CONDITIONS

  WHEN THEY PERFORM THEY WILL UNDERMINE THESE UNION STANDARDS. 

  THEY WOULD PUT PRESSURE ON THE UNION MEMBERS THEY COMPETE WITH TO

  CORRESPONDINGLY LOWER THEIR OWN DEMANDS."  241 F.SUPP.,AT 888. 

THE COURT OF APPEALS ITSELF EXPRESSED A SIMILAR VIEW IN SAYING: 

"EVEN THOSE ORCHESTRA LEADERS WHO, AS EMPLOYERS IN CLUB DATES, LEAD
BUT NEVER PERFORM AS PLAYERS, ARE PROPER SUBJECTS FOR MEMBERSHIP
BECAUSE THEY ARE IN JOB COMPETITION WITH UNION SUB-LEADERS; EACH TIME A
NON-UNION ORCHESTRA LEADER PERFORMS, HE DISPLACES A 'UNION JOB' WITH A
'NON-UNION JOB.'"  372 F.2D, AT 168.  AND OF PARTICULAR SIGNIFICANCE,
THE COURT OF APPEALS NOTED THAT WHERE THE LEADER PERFORMS 

"THE SERVICES OF A SUB-LEADER WOULD NOT BE REQUIRED AND THE LEADER
MAY IN THIS WAY SAVE THE WAGES HE WOULD OTHERWISE HAVE TO PAY. 
CONSEQUENTLY, HE COULD MAKE THE SERVICES OF HIS ORCHESTRA AVAILABLE AT
A LOWER PRICE THAN COULD A NON-PERFORMING LEADER."  372 F.2D, AT 166. 

THUS THE PRICE FLOORS, INCLUDING THE MINIMUM FOR LEADERS, ARE SIMPLY
A MEANS FOR COPING WITH THE JOB AND WAGE C-MPETITION OF THE LEADERS TO
PROTECT THE WAGE SCALES OF MUSICIANS WHO RESPONDENTS CONCEDE ARE
EMPLOYEES ON CLUB-DATES, NAMELY SIDEMEN AND SUBLEADERS.  AS SUCH THE
PROVISIONS OF THE "PRICE LIST" ESTABLISHING THOSE FLOORS ARE
INDISTINGUISHABLE IN THEIR EFFECT FROM THE COLLECTIVE BARGAINING
PROVISIONS IN TEAMSTERS UNION V. OLIVER, 358 U.S. 283 (OLIVER I), WHICH
WE HELD GOVERNED NOT PRICES BUT THE MANDATORY BARGAINING SUBJECT OF
WAGES.  THE PRECISE ISSUE IN OLIVER I WAS WHETHER ARTICLE XXXII OF A
MULTI-EMPLOYER, MULTISTATE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
TEAMSTERS UNION AND A BARGAINING ORGANIZATION OF MOTOR CARRIERS DEALT
WITH A MANDATORY SUBJECT OF BARGAINING.  ARTICLE XXXII PROVIDED THAT
DRIVERS WHO OWN AND DRIVE THEIR OWN VEHICLES SHOULD BE PAID, IN
ADDITION TO THE PRESCRIBED DRIVER'S WAGE, NOT LESS THAN A PRESCRIBED
MINIMUM RENTAL FOR THE USE OF THEIR VEHICLES.  WE HELD THAT THE ARTICLE
WAS A WAGE AND NOT A PRICE PROVISION, SAYING: 

"THE INADEQUACY OF A RENTAL WHICH MEANS THAT THE OWNER MAKES UP HIS
EXCESS COSTS FROM HIS DRIVERS' WAGES NOT ONLY CLEARLY BEARS A CLOSE
RELATION TO LABOR'S EFFORTS TO IMPROVE WORKING CONDITIONS BUT IS IN
FACT OF VITAL CONCERN TO THE CARRIER'S EMPLOYED DRIVERS; AN INADEQUATE
RENTAL MIGHT MEAN THE PROGRESSIVE CURTAILMENT OF JOBS THROUGH
WITHDRAWAL OF MORE AND MORE CARRIER-OWNED VEHICLES FROM SERVICE . . . "
358 U.S.,AT 294. 

WE DISAGREE WITH THE COURT OF APPEALS THAT "(THE CIRCUMSTANCES
CONSTITUTING A POSSIBLE THREAT TO THE EMPLOYMENT OF SUB-LEADERS OR THE
DISPLACEMENT OF A SIDEMAN . . . ARE NOT AT ALL COMPARABLE," 372 F.2D,
AT 166.  THE PRICE FLOORS HERE SERVE THE IDENTICAL ENDS SERVED BY
ARTICLE XXXII IN OLIVER I.  THE PRICE LIST HAS IN COMMON WITH ARTICLE
XXXII THE OBJECTIVE TO PROTECT EMPLOYEES' JOB OPPORTUNITIES AND WAGES
FROM JOB AND WAGE COMPETITION OF OTHER UNION MEMBERS-- IN THE CASE OF
THE ARTICLE, DRIVERS WHEN THEY DRIVE THEIR OWN VEHICLES, AND IN THE
CASE OF THE PRICE LIST, MUSICIANS ON THE OCCASIONS THEY ARE LEADERS AND
PLAY A ROLE AS EMPLOYERS.  LIKE THE ARTICLE, THE PRICE LIST IS
THEREFORE "A DIRECT AND FRONTAL ATTACK UPON A PROBLEM THOUGHT TO
THREATEN THE MAINTENANCE OF THE BASIC WAGE STRUCTURE . . . "  358
U.S.,AT 294.  /10/     THE MAJORITY OF THE COURT OF APPEALS APPARENTLY
REGARDED MEAT CUTTERS V. JEWEL TEA, SUPRA, AS MILITATING AGAINST THIS
CONCLUSION.  THE MAJORITY READ THE OPINIONS OF MR. JUSTICE WHITE AND
MR. JUSTICE GOLDBERG IN THAT CASE AS REQUIRING A HOLDING THAT
"MANDATORY SUBJECTS OF COLLECTIVE BARGAINING CARRY WITH THEM AN
EXEMPTION . . . ," BUT THAT "(ON MATTERS OUTSIDE OF THE MANDATORY AREA
. . . NO SUCH CONSIDERATIONS GOVERN . . . "  371 F.2D, AT 165.  EVEN IF
ONLY MANDATORY SUBJECTS OF BARGAINING ENJOY THE EXEMPTION-- A QUESTION
NOT IN THIS CASE AND UPON WHICH WE EXPRESS NO VIEW-- NOTHING MR.
JUSTICE WHITE OR MR. JUSTICE GOLDBERG SAID REMOTELY SUGGESTS THAT THE
DISTINCTION BETWEEN MANDATORY AND NONMANDATORY SUBJECTS TURNS ON THE
FORM OF THE METHOD TAKEN TO PROTECT A WAGE SCALE, HERE A PRICE FLOOR. 
TO THE CONTRARY, WE POINTED OUT ABOVE THAT MR. JUSTICE WHITE'S OPINION
EMPHASIZED THAT THE "CRUCIAL DETERMINANT IS NOT THE FORM OF THE
AGREEMENT . . . " AND CITED OLIVER I AS SETTLING THAT PROPOSITION.  381
U.S.,AT 690, N. 5. 

THE REASONS WHICH ENTITLE THE PRICE LIST TO THE EXEMPTION EMBRACE
THE PROVISION FIXING THE MINIMUM PRICE FOR A CLUB-DATE ENGAGEMENT WHEN
THE ORCHESTRA LEADER DOES NOT PERFORM AND DOES NOT DISPLACE AN EMPLOYEE
MUSICIAN.  /11/  THAT REGULATION IS ALSO JUSTIFIED AS A MEANS OF
PRESERVING THE SCALE OF THE SIDEMEN AND SUBLEADERS.  THERE WAS EVIDENCE
THAT WHEN THE LEADER DOES NOT COLLECT FROM THE PURCHASER OF THE MUSIC
AN AMOUNT SUFFICIENT TO MAKE UP THE TOTAL OF HIS OUT-OF-POCKET
EXPENSES, INCLUDING THE SUM OF HIS WAGE-SCALE WAGES AND THE SCALE WAGES
OF THE SIDEMAN, /12/  HE WILL, IN FACT, NOT PAY THE SIDEMAN THE
PRESCRIBED SCALE.  THE DISTRICT COURT FOUND: 

"IT IS UNQUESTIONABLY TRUE THAT SKIMPING ON THE PART OF THE PERSON
WHO SETS UP THE ENGAGEMENT (THE LEADER) SO THAT HIS COSTS ARE NOT
COVERED IS LIKELY TO HAVE AN ADVERSE EFFECT ON THE FEES PAID TO THE
PARTICIPATING MUSICIANS.  BY FIXING A REASONABLE AMOUNT OVER THE SUM OF
THE MINIMUM WAGES OF THE MUSICIANS PARTICIPATING IN AN ENGAGEMENT TO
COVER THESE EXPENSES, THE UNION INSURES THAT 'NO PART OF THE LABOR
COSTS PAID TO A (LEADER) WOULD BE DIVERTED BY HIM FOR OVERHEAD OR OTHER
NON-LABOR COSTS.'"  241 F.SUPP.,AT 891. 

IN OTHER WORDS, THE PRICE OF THE PRODUCT-- HERE THE PRICE FOR AN
ORCHESTRA FOR A CLUB-DATE-- REPRESENTS ALMOST ENTIRELY THE SCALE WAGES
OF THE SIDEMEN AND THE LEADER.  UNLIKE MOST INDUSTRIES, EXCEPT FOR THE
8% CHARGE, THERE ARE NO OTHER COSTS CONTRIBUTING TO THE PRICE. 
THEREFORE, IF LEADERS CUT PRICES, INEVITABLY WAGES MUST BE CUT. 

THE ANALYSES OF MR. JUSTICE WHITE AND MR. JUSTICE GOLDBERG IN JEWEL
TEA SUPPORT OUR CONCLUSION.  JEWEL TEA DID NOT HOLD THAT AN AGREEMENT
RESPECTING MARKETING HOURS WOULD ALWAYS COME WITHIN THE LABOR
EXEMPTION.  RATHER, THAT CASE HELD THAT SUCH AN AGREEMENT WAS LAWFUL
BECAUSE IT WAS FOUND THAT THE MARKETING-HOURS RESTRICTION HAD A
SUBSTANTIAL EFFECT ON HOURS WORKED BY THE UNION MEMBERS.  SIMILARLY,
THE PRICE-LIST REQUIREMENT IS BROUGHT WITHIN THE LABOR EXEMPTION UNDER
THE FINDING THAT THE REQUIREMENT IS NECESSARY TO ASSURE THAT SCALE
WAGES WILL BE PAID TO THE SIDEMEN AND THE LEADER.  IF THE UNION MAY NOT
REQUIRE THAT THE FULL-TIME LEADER CHARGE THE PURCHASER OF THE MUSIC AN
AMOUNT SUFFICIENT TO COMPENSATE HIM FOR THE TIME HE SPENDS SELECTING
MUSICIANS AND PERFORMING THE OTHER MUSICAL FUNCTIONS INVOLVED IN
LEADING, THE FULL-TIME LEADER MAY COMPETE WITH OTHER UNION MEMBERS WHO
SEEK THE SAME JOBS THROUGH PRICE DIFFERENTIATION IN THE PRODUCT MARKET
BASED ON DIFFERENCES IN A LABOR STANDARD.  HIS SITUATION IS IDENTICAL
TO THAT OF A TRUCK OWNER IN OLIVER I WHO DOES NOT CHARGE AN AMOUNT
SUFFICIENT TO COMPENSATE HIM FOR THE VALUE OF HIS LABOR SERVICES IN
DRIVING THE TRUCK, AND IS A SITUATION WHICH THE UNION CAN PREVENT
CONSISTENT WITH ITS ANTITRUST EXEMPTION.  THERE CAN BE NO
DIFFERENTIATION BETWEEN THE LEADER WHO APPEARS WITH HIS ORCHESTRA AND
THE ONE WHO ON OCCASION HIRES A SUBLEADER.  IN EITHER CASE PART OF THE
UNION-PRESCRIBED "LEADER'S FEE" IS ATTRIBUTABLE TO SERVICE RENDERED IN
EITHER CONDUCTING OR PLAYING AND PART TO THE SERVICE RENDERED IN
SELECTING MUSICIANS, BOOKKEEPING, ETC.  THE ONLY DIFFERENCE IS THAT IN
THE FORMER SITUATION THE LEADER KEEPS THE ENTIRE FEE WHILE IN THE
LATTER HE IS REQUIRED TO PAY THAT PART OF IT ATTIRBUTABLE TO PLAYING OR
CONDUCTING TO THE SUBLEADER.  IN THIS RESPECT WE AGREE WITH THE VIEW
ESPOUSED BY JUDGE FRIENDLY IN HIS SEPARATE OPINION, 372 F.2D, AT 168
170. 

WE THINK ALSO THAT THE CATERER AND BOOKING AGENT RESTRICTIONS "ARE
AT LEAST AS INTIMATELY BOUND UP WITH THE SUBJECT OF WAGES," OLIVER II,
SUPRA, AT 606, AS THE PRICE FLOORS.  THE DISTRICT COURT FOUND THAT THE
BOOKING AGENT REGULATIONS WERE ADOPTED BECAUSE OF EXPERIENCE THAT "MANY
BOOKING AGENTS CHARGED EXORBITANT FEES TO MEMBERS AND BOOKED
ENGAGEMENTS FOR MUSICIANS AT WAGES WHICH WERE BELOW UNION SCALE."  241
F.SUPP.,AT 881-882.  ON THE BASIS OF THESE FINDINGS, THE DISTRICT COURT
CONCLUDED: 

     "BECAUSE THE ACTIVITIES OF THE BOOKING AGENTS HERE HAVE AND
HAD

  A DIRECT AND SUBSTANTIAL EFFECT ON THE WAGES OF THE MEMBERS OF

  (THE UNIONS), I FIND THAT THEY ARE IN AN ECONOMIC

  INTERRELATIONSHIP WITH THE MEMBERS . . . SUCH THAT THE (UNIONS)

  ARE JUSTIFIED IN REGULATING THEIR ACTIVITIES . . . FURTHERMORE, I

  FIND THE REGULATIONS TO BE REASONABLY RELATED TO THEIR INTEREST

  IN MAINTAINING OBSERVANCE OF UNION SCALE WAGES AND WORKING

  CONDITIONS."  241 F.SUPP.,AT 893. 

THE FINDING CONCERNING THE CATERER REGULATIONS WAS TO THE SAME EFFECT. 

     "THE EVIDENCE DISCLOSES THAT CATERERS TOOK ADVANTAGE OF THEIR

  POSITION BEFORE THE UNION ADOPTED ITS REGULATIONS TO, IN EFFECT,

  BOOK ORCHESTRAS AND THEY CONTINUE TO DO SO, AT LEAST TO SOME

  EXTENT.  CATERERS RECOMMEND ORCHESTRAS TO CUSTOMERS AND RECEIVE

  COMMISSIONS FROM ORCHESTRA LEADERS.  THESE PRACTICES ACTUALLY OR

  POTENTIALLY AFFECT THE WAGES OF THE MUSICIANS INVOLVED. 

     "I BELIEVE THAT THIS CONSTITUTES AN ECONOMIC INTERRELATIONSHIP

  WHICH PERMITS THE DEFENDANTS TO REGULATE AND PROHIBIT THE BOOKING

  ACTIVITIES OF THE CATERERS WITHOUT VIOLATING THE SHERMAN ACT." 

  241 F.SUPP.,AT 893. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASES ARE
REMANDED WITH DIRECTION TO ENTER A JUDGMENT AFFIRMING THE JUDGMENT OF
THE DISTRICT COURT IN ITS ENTIRETY. 

  IT IS SO ORDERED. 

THE CHIEF JUSTICE AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

/1A/  TOGETHER WITH NO. 310, ARROLL ET AL. V. AMERICAN FEDERATION OF
MUSICIANS OF THE UNITED STATES AND CANADA ET AL., ALSO ON CERTIORARI TO
THE SAME COURT. 

/1/  PETERSON AND CARROLL, RESPONDENTS IN NO. 309, FILED THE FIRST
ACTION IN JULY 1960 AND THE OTHER IN DECEMBER 1960.  THE LATTER WAS
BROUGHT TO CHALLENGE AN INCREASE IN THE MUSICIANS' WAGE SCALE ADOPTED
AFTER THE FIRST COMPLAINT WAS FILED.  THE OTHER RESPONDENTS WERE
ALLOWED TO INTERVENE.  BY STIPULATION THE TESTIMONY IN CARROLL V.
ASSOCIATED MUSICIANS, 206 F.SUPP.  462, 316 F.2D 574, AND CUTLER V.
AMERICAN FEDERATION OF MUSICIANS, 211 F.SUPP.  433, 316 F.2D 546, WAS
MADE PART OF THE RECORD. 

/2/  SEC. 13(C), 47 STAT. 73, 29 U.S.C. 113(C); SEE ALSO SECS. 6 AND
20 OF THE CLAYTON ACT, 38 STAT. 731, 738, 15 U.S.C. 17, 29 U.S.C. 52. 

/3/  "MUSICAL ENGAGEMENTS ARE GENERALLY CLASSIFIED AS EITHER
'STEADY,' THOSE LASTING FOR LONGER THAN ONE WEEK, OR 'SINGLE,' USUALLY
ONE DAY OR ONE PERFORMANCE AFFAIRS BUT INCLUDING ALL ENGAGEMENTS
LASTING LESS THAN ONE WEEK.  THE MUCH SOUGHT AFTER STEADY ENGAGEMENTS
ARE RARE IN COMPARISON WITH THE NUMBER OF SINGLE ENGAGEMENTS. 

"THE PREDOMINANT FORM OF SINGLE ENGAGEMENT IS THE 'CLUB DATE' . . .
SINGLE ENGAGEMENTS ALSO INCLUDE THE 'NON-CLUB DATE' FIELD, CONSISTING
OF TELEVISION APPEARANCES OR RECORDING ENGAGEMENTS, ETC . . . "  372
F.2D, AT 158. 

/4/  BOTH THE DISTRICT COURT AND THE COURT OF APPEALS HELD THAT
RESPONDENTS DID NOT PROVE THAT THEY PROPERLY REPRESENTED A CLASS UNDER
FORMER FED. RULE CIV. PROC. 23(A), 241 F.SUPP.,AT 884-886; 372 F.2D, AT
161-163.  THE RECORD SUSTAINS THIS CONCLUSION.  SUPREME TRIBE OF BEN
HUR V. CAUBLE, 255 U.S. 356; HANSBERRY V. LEE, 311 U.S. 32.  SINCE ALL
OF THE RESPONDENTS EITHER PLAY AN INSTRUMENT OR CONDUCT THEIR
ORCHESTRAS UNLESS THEY BOOK MORE THAN ONE ENGAGEMENT FOR THE SAME TIME,
WE DO NOT HAVE BEFORE US A LEADER WHO MERELY BOOKS ENGAGEMENTS AND
NEVER APPEARS WITH HIS ORCHESTRA. 

/5/  CARROLL AND PETERSON HAVE SINCE BEEN EXPELLED FROM MEMBERSHIP. 
SEE 241 F.SUPP.,AT 870.  BOTH ARE STILL PERMITTED TO BOOK ENGAGEMENTS
AND HIRE MUSICIANS TO PLAY AT THEM BUT CANNOT APPEAR WITH THEIR
ORCHESTRA EITHER AS CONDUCTORS OR INSTRUMENTALISTS.  SEE CARROLL V.
AMERICAN FEDERATION OF MUSICIANS, 310 F.2D 325. 

/6/  "THE DISTINCTION BETWEEN THE KINDS OF SINGLE ENGAGEMENTS IS
VITAL; THE NON-CLUB DATE ENGAGEMENTS ARE ORDINARILY GOVERNED BY
COLLECTIVE BARGAINING AGREEMENTS . . . THE SAME IS USUALLY TRUE OF THE
STEADY ENGAGEMENT FIELD.  LOCAL 802 HAS COLLECTIBE VARGAINING
AGREEMENTS WITH THE MAJOR USERS OR 'PURCHASERS' OF LIVE MUSIC WITHIN
ITS AREA SUCH AS RECORDING COMPANIES, HOTELS, TELEVISION AND FILM
PRODUCERS, OPERA COMPANIES AND THEATRES."  372 F.2D, AT 158. 

/7/  SEE 241 F.SUPP.,AT 887; 372 F.2D, AT 159.  WE NEED NO DECIDE
THE QUESTION. 

/8/  THE COURT OF APPEALS ALSO FOUND "NO EVIDENCE OF A CONSPIRACY
BETWEEN LOCAL 802, OR THE FEDERATION, AND ORCHESTRA LEADERS TO
ELIMINATE COMPETITORS, FIX PRICES OR ACHIEVE ANY OTHER COMMERCIAL
RESTRAINT, NOR WAS SUCH A FINDING MADE BY THE DISRICT JUDGE.  RATHER,
THE RECORD ESTABLISHES THAT ALL RESTRAINTS WERE INSTITUTED UNILATERALLY
BY THE UNIONS AND ACQUIESCED IN BY THE ORCHESTRA LEADERS."  372 F.2D,
AT 164; SEE 241 F.SUPP.,AT 891. 

/9/  "(IN THE CLUB DATE AND HOTEL STEADY ENGAGEMENT FIELDS . . .
ORCHESTRA LEADERS ARE IN COMPETITION WITH EMPLOYEE MEMBERS OF THE . . .
UNIONS REGARDING JOBS, WAGES AND OTHER WORKING CONDITIONS.  AS A
RESULT, THEY COMPRISE A LABOR GROUP IN THESE FIELDS."  241 F.SUPP.,AT
887-888. 

MR. JUSTICE WHITE, WITH HOM MR. JUSTICE BLACK JOINS, DISSENTING. 

IN MY VIEW THE COURT IS MISLED BY THE PECULIAR ROLE OF BANDLEADERS
AND THE PECULIAR ECONOMICS OF THE CLUB-DATE MUSIC INDUSTRY, AND
FASHIONS A RULE WHICH, IF COMPREHENSIBLE AT ALL, HAS UNFORTUNATE
CONSEQUENCES FOR THE DELICATE AND DIFFICULT AREA OF CONFLICT BETWEEN
ANTITRUST AND LABOR POLICY. 

THE FOUR RESPONDENTS IN NO. 309 (HEREAFTER RESPONDENTS) ARE
SUCCESSFUL BANDLEADERS WHOSE SUCCESS HAS MADE IT UNNECESSARY FOR THEM
TO CONTINUE WORKING FROM TIME TO TIME AS SIDEMEN AND SUBLEADERS. 
HOWEVER THEY DO WORK AS LEADERS.  /1/  INDEED, THEIR BUSINESS PRACTICE
WAS TO LEAD INDIVIDUALLY WHENEVER THEY OBTAINED AN ENGAGEMENT, HIRING A
SUBLEADER ONLY WHEN THEY OBTAINED TWO OR MORE ENGAGEMENTS AT
CONFLICTING TIMES.  LEADING A BAND WAS OBVIOUSLY ONE IMPORTAQT PART OF
THEIR WORKING CAREERS; IT WAS NOT, HOWEVER, THE ONLY PART.  RESPONDENTS
ALSO DEVOTED MUCH TIME AND ENERGY TO ORGANIZING AND MANAGING THEIR
BUSINESSES.  THEY ADVERTISED, AND IN OTHER WAYS OBTAINED ENGAGEMENTS. 
THEY PLANNED THE MUSIC TO BE PROVIDED AT THOSE ENGAGEMENTS.  THEY
CHOSE, RECRUITED, AND SUPERVISED THE SUBLEADERS AND SIDEMEN WORKING FOR
THEM.  AND THEY ESTABLISHED AND DIRECTED THE ADMINISTRATIVE OPERATION
NECESSARY FOR OBTAINING AND FULFILLING ENGAGEMENTS. 

THE COURT ACCEPTS THE FINDING THAT RESPONDENTS WERE A "LABOR"
GROUP.  I WOULD THINK IT BEYOND DISPUTE THAT LEADING A BANK (A TASK
WHICH USUALLY INCLUDES ALSO OCCASIONAL PLAYING OF AN INSRUMENT) IS
"LABOR GROUP WORK," BUT THAT IT IS EQUALLY BEYONG DISPUTE THAT MANAGING
AND ADMINISTERING A BUSINESS WHOSE FUNCTION IS SUPPLYING BANKS TO
FATHER OF BRIDES IS NOT "LABOR GROUP WORK."  /2/  THE FIRST TASK,
LEADING, CERTAINLY POSSESSES "ECONOMIC INTERRELATIONSHIPS) AFFECTING
LEGITIMATE UNION INTERESTS,"  /3/  AND THE SECOND CLEARLY DOES NOT. 
THE COURT APPEARS TO FEEL THAT BECAUSE RESPONDENTS' WORK INCLUDES SOME
"LABOR GROUP" TASKS, ALL ASPECTS OF RESPONDENTS' ACTIVITIES ARE PROPER
SUBJECT OF UNION CONCERN.  I SEE NO REASON WHY THE LAW IN THIS AREA
CANNOT BE SUFFICIENTLY FLEXIBLE TO GRANT THE UNION ANTITRUST IMMUNITY
FOR REGULATION OF THOSE ACTIVITIES OF BANDLEADERS WHICH SUFFICIENTLY
AFFECT UNION MEMBERS, WHILE DENYING THAT IMMUNITY WHERE THE UNION HAS
NO PROPER CONCERN. 

TEAMSTERS UNION V. OLIVER, 358 U.S. 283 (1959), IS A DIFFICULT CASE,
BUT AN IMPORTANT ONE, WITH WHICH I FULLY AGREE.  /4/  OLIVER, AS I READ
IT, HOLDS THAT WHERE INDEPENDENT CONTRACTORS ARE DOING WORK FOR AN
EMPLOYER IN COMPETITION WITH THE WORK OF UNION MEMBERS, THE UNION CAN
BARGAIN WITH THE EMPLOYER TO MAKE CERTAIN THEY ARE NOT DOING THAT WORK
AT A LOWER WAGE THAN THAT PAID TO MEMBERS.  /5/  SINCE IN OLIVER AN
INDEPENDENT TRUCK DRIVER WHO CLAIMED TO BE CHARGING THE UNION RATE FOR
HIS LABOR BUT RECEIVED IN ADDITION LESS THAN HIS COSTS FOR EQUIPMENT
AND GASOLINE WOULD IN FACT BE CUTTING THE UNION WAGE SCALE, THE COURT
HELD THAT THE UNION DID NOT VIOLATE THE ANTITRUST LAWS WHEN IT
BARGAINED ABOUT THE TOTAL AMOUNT-- INCLUDING BOTH WAGE AND EQUIPMENT
COSTS-- THAT THE COMPANIES WOULD PAY TO THE INDEPENDENT OWNER-DRIVERS. 
ON THE FACTS BEFORE US, OLIVER IS RELEVANT, BUT NOT ACROSS-THE-BOARD,
AS THE COURT SEEMS TO THINK.  HERE, WHEN ONE OF RESPONDENTS LEADS, HE
DOES WORK-- PLAYING AND LEADING-- WHICH IS ALSO DONE BY UNION MEMBERS,
AND FOR WHICH THE UNION HAS A PROPER CONCERN.  THE UNION THUS HAS A
RIGHT TO SEE THAT THE RESPONDENT DOES NOT PERFORM THAT WORK FOR LESS
THAN THE GOING SCALE FOR UNION MUSICIANS AND SUBLEADERS.  SINCE THE
LEADER FIXES A SINGLE CHARGE TO COMPENSATE HIM FOR BOTH LEADING AND
ORGANIZING, THE UNION CAN REQUIRE THE LEADER TO MAKE THAT CHARGE NOT
LESS THAN THE UNION SCALE FOR A SUBLEADER PLUS THE LEADER'S COSTS IN
OBTAINING THE ENGAGEMENT, HIRING THE MUSICIANS, AND PLANNING THE
PROGRAM.  SINCE, AS JUDGE FRIENDLY SAID IN HIS SEPARATE OPINION BELOW,
THE PRICE THE UNION REQUIRES LEADERS TO CHARGE HAS NOT BEEN SHOWN TO BE
"SET SO HIGH AS TO COVER NOT MERELY COMPENSATION FOR THE ADDITIONAL
SERVICES RENDERED BY A LEADER BUT ENTREPRENEURIAL PROFIT AS WELL,"  /6/
THE UNION SHOULD BE FREE OF ANTITRUST LIABILITY FOR IMPOSING THIS
MINIMUM RATE ON CHARGES BY LEADERS WHEN THEY ACTUALLY LEAD.  OLIVER SO
HOLDS. 

THE QUESTION IS QUITE DIFFERENT, HOWEVER, WHEN WE DEAL WITH
IMPOSITION OF FIXED MINIMUM CHARGES BY LEADERS FOR ENGAGEMENTS AT WHICH
THEY DO NOT THEMSELVES LEAD.  FOR SUCH ENGAGEMENTS THE ROLE OF THE
LEADER IS SOLELY THAT OF ENTREPRENEUR:  HE OBTAINS A CUSTOMER (PARTLY,
IT APPEARS, THROUGH THE ATTRACTION OF HIS REPUTATION AS AN ESTABLISHED
PROVIDER OF MUSIC), MAKES THE NECESSARY ARRANGEMENTS FOR SERVICING THE
CUSTOMER, INCLUDING EMPLOYMENT AND SUPERVISION OF STAFF, AND MAINTAINS
THE ADMINISTRATIVE STRUCTURE REQUIRED FOR THIS WORK:  OFFICE, PAYROLL
CLERK, PERMANENT TELEPHONE LISTING, AND SO FORTH.  THE UNION HAS OF
COURSE A FULL RIGHT TO IMPOSE ON THIS LEADER, WHO IS IN EFFECT AN
EMPLOYER, ITS MINIMUM SCALE FOR WORK BY SIDEMEN AND SUBLEADERS.  THE
MUSICIANS UNION, HOWEVER, GOES FURTHER.  IT REQUIRES THAT, FOR AN
ENGAGEMENT OF FOUR OR MORE MUSICIANS, THE LEADER CHARGE HIS CUSTOMER
NOT LESS THAN THE SIDEMAN'S SCALE TIMES THE NUMBER OF MUSICIANS
(INCLUDING THE SUBLEADER), PLUS DOUBLE THE SIDEMAN'S SCALE TO
COMPENSATE THE LEADER, OF WHICH ONE-FOURTH-- PLUS THE SIDEMAN'S SCALE--
GOES TO THE SUBLEADER.  THE UNION IS CLEARLY REQUIRING THAT THE LEADER
CHARGE HIS CUSTOMER MORE THAN THE TOTAL OF THE LEADER'S WAGE BILL, EVEN
THOUGH THE LEADER HIMSELF DOES NO "LABOR GROUP" WORK. 

THERE IS NO CLEAR HOLDINB BY THIS COURT THAT A UNION IS NOT IMMUNE
FROM ANTITRUST LIABILITY WHEN IT REQUIRES THAT ALL THE EMPLOYERS WITH
WHOM IT DEALS CHARGE UNIFORM PRICES.  IT HAS CERTAINLY BEEN ASSUMED,
HOWEVER, THAT THE NORRIS-LAGUARDIA EXEMPTION TO THE ANTITRUST LAWS DOES
NOT EXTEND THIS FAR.  IN MEAT CUTTERS V. JEWEL TEA CO., 381 U.S. 676
(1965), THE ENTIRE COURT JOINED OPINIONS STRONGLY SUGGESTING THERE IS
NO ANTITRUST IMMUNITY FOR A UNION WHICH JOINS WITH EMPLOYERS TO FIX THE
PRICES AT WHICH THE EMPLOYERS SELL TO THE PUBLIC.  I WROTE, IN AN
OPINION JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE BRENNAN: 

"JEWEL, FOR EXAMPLE, NEED NOT HAVE BARGAINED ABOUT OR AGREED TO A
SCHEDULE OF PRICES AT WHICH ITS MEAT WOULD BE SOLD AND THE UNIONS COULD
NOT LEGALLY HAVE INSISTED THAT IT DO SO.  BUT IF THE UNIONS HAD MADE
SUCH A DEMAND, JEWEL HAD AGREED AND THE UNITED STATES OR AN INJURED
PARTY HAD CHALLENGED THE AGREEMENT UNDER THE ANTITRUST LAWS, WE
SERIOUSLY THAT EITHER THE UNIONS OR JEWEL COULD CLAIM IMMUNITY BY
REASON OF THE LABOR EXEMPTION, WHATEVER SUBSTANTIVE QUESTIONS OF
VIOLATION THERE MIGHT BE."  381 U.S.,AT 689.  MR. JUSTICE GOLDBERG IN
HIS SEPARATE OPINION, JOINED BY JUSTICES HARLAN AND STEWART, WROTE: 

"THE DIRECT AND OVERRIDING INTEREST OF UNIONS IN SUCH SUBJECTS AS
WAGES, HOURS, AND OTHER OWKRING CONDITIONS, WHICH CONGRESS HAS
RECOGNIZED IN MAKING THEM SUBJECTS OF MANDATORY BARGAINING, IS CLEARLY
LACKING WHERE THE SUBJECT OF THE AGREEMENT IS PRICE-FIXING AND MARKET
ALLOCATION.  MOREOVER, SUCH ACTIVITIES ARE AT THE CORE OF THE TYPE OF
ANTICOMPETITIVE COMMERCIAL RESTRAINT AT WHICH THE ANTITRUST LAWS ARE
DIRECTED."  381 U.S.,AT 732-733.  MR. JUSTICE DOUGLAS, DISSENTING IN
JEWEL TEA AND JOINED BY JUSTICES BLACK AND CLARK, WROTE: 

"(THE UNIONS CAN NO MORE AID A GROUP OF BUSINESSMEN TO FORCE THEIR
COMPETITIORS TO FOLLOW UNIFORM STORE MARKETING HOURS THEN TO FORCE THEM
TO SELL AT FIXED PRICES.  BOTH PRACTICES TAKE AWAY THE FREEDOM OF
TRADERS TO CARRY ON THEIR BUSINESS IN THEIR COMPETITIVE FASHION."  381
U.S.,AT 737.  /7/ 

UNIONS ARE, OF COURSE, NOT WITHOUT INTEREST IN THE PRICES AT WHICH
EMPLOYERS SELL.  AS THE MAJORITY POINTS OUT, BY SEEING THAT EMPLOYERS
SELL AT PRICES COVERING ALL THEIR COSTS, A UNION CAN INSURE EMPLOYER
SOLVENCY AND MAKE MORE CERTAIN EMPLOYEE COLLECTION OF WAGES OWED THEM. 
IN ADDITION, ASSURING THAT COMPETING EMPLOYERS CHARGE AT LEAST A
MINIMUM PRICE PREVENTS PRICE COMPETITION FROM EXERTING DOWNWARD
PRESSURE ON WAGES.  ON THE OTHER HAND, PRICE COMPETITION, A SIGNIFICANT
AID TO SATISFACTORY RESOURCE ALLOCATION AND A DETERRENT TO INFLATION,
WOULD BE SUBSTANTIALLY DIMINISHED IF INDUSTRY-WIDE UNIONS WERE FREE TO
DICTATE UNIFORM PRICES THROUGH AGREEMENTS WITH EMPLOYERS.  /8/  I HAVE
ALWAYS THOUGHT THAT THIS STRONG POLICY OUTWEIGHED THE LEGITIMATE UNION
INTEREST IN THE PRICES AT WHICH EMPLOYERS SELL, AND UNTIL TODAY I HAD
THOUGHT THAT THE COURT AGREED.  OF COURSE THE LACK OF DISCUSSION OF
THIS QUESTION IN THE MAJORITY'S OPINION, AND THE FAILURE TO REFER TO
THE UNANIMOUS REJECTION IN JEWEL TEA OF ANTITRUST IMMUNITY FOR UNION
EFFORTS TO FIX INDUSTRY-WIDE PRICES, SUGGEST THAT THE COURT TAKES THIS
STEP WITHOUT FULL AWARENESS OF THE IMPLICATIONS AND THE LIKELY
CONSEQUENCES.  THE STEP IS NONETHELESS DISTURBING, AND I MUST RECORD MY
DISSENT. 

I AM ALSO IN DISAGREEMENT WITH THE MAJORITY ABOUT CERTAIN OF THE
QUESTIONS PRESENTED IN NO. 310.  THE MUSICIANS UNION IMPOSES ITS RULES
NOT ONLY ON RESPONDENTS, WHO SOMETIMES LEAD AND SOMETIMES HIRE
SUBLEADERS, BUT UPON LEADERS WHO NEVER LEAD PERSONALLY.  THESE LEADERS
ARE MERELY INDEPENDENT BUSINESSMEN, PERFORMING NO "LABOR GROUP" WORK,
AND THE UNION HAS NO PROPER INTEREST IN REGULATING THEIR ACTIVITIES. 
EVEN THOUGH THE DISTRICT COURT FOUND THAT THE UNION IMPOSED ITS RULES
ON THESE LEADERS, I BELIEVE THE FACTS AS FOUND BELOW DEMONSTRATE THAT
THE UNION FORMED A COMBINATION WITH THOSE INDEPENDENT BUSINESSMEN.  /9/
IF THE UNION AND EMPLOYERS COMBINED, I HAVE NO DOUBT THAT SOME OF THE
REGULATIONS AGREED UPON WERE UNLAWFUL RESTRAINTS OF TRADE.  BOYCOTTING
BOOKING AGENTS AND CATERERS WHO OCCASIONALLY DID BUSINESS WITH
EMPLOYERS NOT LIVING BY THE UNION'S RULES UNREASONABLY RESTRAINED
TRADE.  SO ALSO DID COMBINING WITH WILLING CATERERS AND BOOKING AGENTS
TO IMPOSE UNIFORM BUSINESS PRACTICES ON BANDLEADERS AND TO BOYCOTT
THOSE WHO DID NOT ABIDE BY THE ESTABLISHED RULES AND POLICIES. 
AGREEING WITH EMPLOYERS THAT THE EMPLOYERS WOULD NOT TAKE THEIR WARES
TO OTHER CITIES WITHOUT CHARGING PRICES 10% HIGHER THAN THE LOCAL
EMPLOYERS CHARGED AS A BLATANT VIOLATION OF THE SHERMAN ACT. 
HORIZONTAL DIVISION OF TERRITORIES HAS ALWAYS BEEN HELD A PER SE
VIOLATION OF SEC. 1, E.G., ADDYSTON PIPE & STEEL CO. V. UNITED STATES,
175 U.S. 211 (1899), AND IT SHOULD MAKE NO DIFFERENCE THAT THE
INSTIGATION FOR THIS DIVISION CAME FROM THE UNION AND NOT FROM THE
EMPLOYERS.  I AM UNABLE TO SEE HOW THE PRACTICE AT ISSUE HERE IS
DISTINGUISHABLE FROM AN AGREEMENT BY GENERAL MOTORS AND FORD, AT THE
BEHEST OF THE UAW, FOR GM TO SEEL WEST OF THE MISSISSIPPI ONLY AT
PRICES 10% HIGHER THAN THOSE CHARGED BY FORD, WHILE FORD WOULD SELL IN
THE EAST ONLY AT PRICES HIGHER THAN GM'S.  SINCE UNION COMBINATIONS
WITH NONLABOR GROUPS WHICH RESTRAIN TRADE ARE NOT IMMUNE FROM ANTITRUST
ATTACK, ALLEN BRADLEY CO. V. UNION 325 U.S. 797 (1945); MINE WORKERS V.
PENNINGTON, 381 U.S. 657 (1965), I THINK RESPONDENTS SHOULD BE
PERMITTED TO SHOW THAT THESE UNLAWFUL AND UNIMMUNIZED RESTRAINTS OF
TRADE INJURED THEM, AND SHOULD BE ABLE TO RECOVER THE TREBLED AMOUNT OF
SUCH DAMAGES AS THEY CAN ESTABLISH. 

BY COMBINING WITH A NONLABOR GROUP, THE MUSICIANS UNION HAS OBTAINED
EFFECTIVE CONTROL OF THE ENTIRE CLUB-DATE INDUSTRY.  THE DEVICE FOR
THIS CONTROL HAS BEEN IMPOSITION OF UNION MEMBERSHIP AND UNION RULES ON
COOPERATING BANDLEADERS, AND ON SOME WHO DID NOT WANT TO COOPERATE.  I
AM SURE THE CLAYTON AND THE NORRIS-LAGUARDIA ACTS NEVER INTENDED TO
GIVE UNIONS THIS KIND OF STRANGLEHOLD ON ANY INDUSTRY.  IT MAY BE THAT
THE COURT VIEWS THIS INDUSTRY AS HAVING SPECIAL PROBLEMS OF SUPPLY AND
DEMAND REQUIRING SPECIAL TREATMENT UNDER THE ANTITRUST LAWS.  IF THIS
IS THE CASE, THE COURT SHOULD FRANKLY SAY SO AND SEEK TO CONFINE THE
MISGUIDED RULES OF LAW IT ANNOUNCES.  MORE APPROPRIATELY, THE COURT
SHOULD LEAVE TO CONGRESS THE TASK OF MAKING SPECIAL PROVISIONS IN THE
ANTITRUST LAWS FOR THE SPECIAL CIRCUMSTANCES OF THE MUSIC INDUSTRY.  ON
MORE THAN ONE OCCASION CONGRESS HAS SEEN TO IT THAT THE FULL RIGORS OF
THE ANTITRUST LAWS ARE NOT FELT BY INDUSTRIES WHICH CANNOT SURVIVE
UNDER COMPETITIVE CONDITIONS.  /10/  THE COURT TREADS DANGEROUS GROUND
IN SEEKING ON ITS OWN MOTION TO DENY TO A PARTICULAR INDUSTRY THE
NORMAL COMPETITIVE CONDITIONS ENVISIONED BY THE ANTITRUST LAWS,
CONDITIONS USUALLY VIEWED AS ESSENTIAL FOR MAINTAINING SERVICE AND
PRICES AT SATISFACTORY LEVELS. 

/1/  RATHER, THEY WORKED AS LEADERS UNTIL THEIR INSUBORDINATION
RESULTED IN EXPULSION FROM THE UNION.  SEE 241 F.SUPP.  865, 870
(D.C.S.D.N.Y. 1965). 

/2/  SEE COLUMBIA RIVER PACKERS ASSN. V. HINTON, 315 U.S. 143
(1942). 

/3/  241 F.SUPP.,AT 887. 

/4/  SEE MEAT CUTTERS V. JEWEL TEA CO., 381 U.S. 676, 690, N. 5
(1965). 

/5/  THE UNION COULD HAVE BARGAINED FOR RESTRICTIONS ON CONTRACTING
OUT OF WORK BY THE EMPLOYER.  FIBREBOARD PAPER PRODUCTS CORP. V. NLRB,
379 U.S. 203 (1964). 

/6/  372 F.2D 155, 170 (C.A.2D CIR. 1967). 

/7/  AS ONE COMMENTATOR HAS CONCLUDED, "ALTHOUGH THE COURT SPLIT ON
THE APPLICATION OF THIS PROPOSITION, ALL THE JUSTICES AGREED THAT THE
ANTITRUST LAWS WOULD BE OFFENDED BY A COLLECTIVE BARGAINING AGREEMENT
BINDING EMPLOYERS TO CHARGE A CERTAIN PRICE FOR THEIR GOODS."  P.
AREEDA, ANTITRUST ANALYSIS 52 (1967).  SEE ALSO MINE WORKERS V.
PENNINGTON, 381 U.S. 657, 663 (1965):  "IF THE UMW IN THIS CASE, IN
ORDER TO PROTECT ITS WAGE SCALE BY MAINTAINING EMPLOYER INCOME, HAD
PRESENTED A SET OF PRICES AT WHICH THE MINE OPERATORS WOULD BE REQUIRED
TO SELL THEIR COAL, THE UNION AND THE EMPLOYERS WHO HAPPENED TO AGREE
COULD NOT SUCCESSFULLY DEFEND THIS CONTRACT PROVISION IF IT WERE
CHALLENGED UNDER THE ANTITRUST LAWS BY THE UNITED STATES OR BY SOME
PARTY INJURED BY THE ARRANGEMENT." 

/8/  SEE J. T. DUNLOP, WAGE DETERMINATION UNDER TRADE UNIONS (1950);
C. E. LINDBLOM, UNIONS AND CAPITALISM (1949); E. S. MASON, ECONOMIC
CONCENTRATION AND THE MONOPOLY PROBLEM (1957). 

/9/  UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29 (1960).  SEE
ALSO ALBRECHT V. HERLAD CO., 390 U.S. 145, 150, N. 6 (1968).  I CANNOT
BELIEVE THAT THE COURT INTENDS ITS N. 8 TO HOLD THAT UNILATERAL
DEMANDS, ENFORCED BY THREATS, COMBINED WITH WILLING COOPERATION OR
RELUCTANT ACQUIESCENCE BY LEADERS (WHO MAY JOIN THE UNION AND IN ANY
EVENT OBEY ITS RULES), CANNOT AMOUNT TO A COMBINATION IN RESTRAINT OF
TRADE. 

/10/  E.G., SEC. 1 OF THE CAPPER-VOLSTEAD ACT, 42 STAT. 388, 7
U.S.C. 291 (AGRICULTURAL COOPERATIIVES); SEC. 2 OF THE WEBB-POMERENE
ACT, 40 STAT. 517, 15 U.S.C. 62 (FOREIGN TRADE ASSOCIATIONS); SEC.
6(B)(1) OF THE ACT OF NOV. 8, 1966, 80 STAT. 1515, 15 U.S.C. 1291 (1964
ED., SUPP. II) (JOINT AGREEMENTS BY PROFESSIONAL FOOTBALL CLUBS). 

RONALD ROSENBERG ARGUED THE CAUSE FOR PETITIONERS IN NO. 309 AND
RESPONDENTS IN NO. 310.  WITH HIM ON THE BRIEFS WERE HENRY KAISER,
EUGENE GRESSMAN, GEORGE KAUFMANN, JEROME H. ADLER, AND DAVID I. ASHE. 

GODFREY P. SCHMIDT ARGUED THE CAUSE AND FILED BRIEFS FOR RESPONDENTS
IN NO. 309 AND PETITIONERS IN NO. 310. 

BRIEFS OF AMICI CURIAE WERE FILED BY J. ALBERT WOLL, LAURENCE GOLD,
AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS, AND BY SHAYLE P. FOX AND SMUEL H. YOUNG
FOR THE NATIONAL ASSOCIATION OF ORCHESTRA LEADERS. 
..END :














BRUTON V. UNITED STATES, 391 U.S. 123 


       BRUTON V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 705.  ARGUED MARCH 11, 1968.-- DECIDED MAY 20, 1968. 


A JOINT TRIAL OF PETITIONER AND ONE EVANS RESULTED IN THE CONVICTIONS
OF BOTH FOR ARMED POSTAL ROBBERY.  EVANS DID NOT TAKE THE STAND BUT A
POSTAL INSPECTOR TESTIFIED THAT EVANS CONFESSED ORALLY THAT HE AND
PETITIONER COMMITTED THE ROBBERY.  THE TRIAL JUDGE INSTRUCTED THE JURY
THAT ALTHOUGH EVANS' CONFESSION WAS COMPETENT EVIDENCE AGAINST HIM IT
WAS INADMISSIBLE HEARSAY AGAINST PETITIONER AND HAD TO BE DISREGARDED
IN DETERMINING PETITIONER'S GUILT OR INNOCENCE.  EVANS AND PETITIONER
BOTH APPEALED TO THE COURT OF APPEALS.  THAT COURT SET ASIDE EVANS'
CONVICTION ON THE GROUND THAT THE ORAL CONFESSION SHOULD NOT HAVE BEEN
RECEIVED AGAINST HIM BUT AFFIRMED PETITIONER'S CONVICTION IN VIEW OF
THE TRIAL JUDGE'S INSTRUCTIONS, RELYING ON DELLI PAOLI V. UNITED
STATES, 352 U.S. 232.  HELD:  BECAUSE OF THE SUBSTANTIAL RISK THAT THE
JURY, DESPITE INSTRUCTIONS TO THE CONTRARY, LOOKED TO THE INCRIMINATING
EXTRAJUDICIAL STATEMENTS IN DETERMINING PETITIONER'S GUILT, ADMISSION
OF EVANS' CONFESSION IN THE JOINT TRIAL VIOLATED PETITIONER'S RIGHT OF
CROSS-EXAMINATION SECURED BY THE CONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT.  DELLI PAOLI V. UNITED STATES, SUPRA, OVERRULED.  PP. 126
137. 

375 F.2D 355, REVERSED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION, LAST CONSIDERED IN DELLI PAOLI V.
UNITED STATES, 352 U.S. 232, WHETHER THE CONVICTION OF A DEFENDANT AT A
JOINT TRIAL SHOULD BE SET ASIDE ALTHOUGH THE JURY WAS INSTRUCTED THAT A
CODEFENDANT'S CONFESSION INCULPATING THE DEFENDANT HAD TO BE
DISREGARDED IN DETERMINING HIS GUILT OR INNOCENCE. 

A JOINT TRIAL OF PETITIONER AND ONE EVANS IN THE DISTRICT COURT FOR
THE EASTERN DISTRICT OF MISSOURI RESULTED IN THE CONVICTION OF BOTH BY
A JURY ON A FEDERAL CHARGE OF ARMED POSTAL ROBBERY, 18 U.S.C. 2114.  A
POSTAL INSPECTOR TESTIFIED THAT EVANS ORALLY CONFESSED TO HIM THAT
EVANS AND PETITIONER COMMITTED THE ARMED ROBBERY.  THE POSTAL INSPECTOR
OBTAINED THE ORAL CONFESSION, AND ANOTHER IN WHICH EVANS ADMITTED HE
HAD AN ACCOMPLICE WHOM HE WOULD NOT NAME, IN THE COURSE OF TWO
INTERROGATIONS OF EVANS AT THE CITY JAIL IN ST. LOUIS, MISSOURI, WHERE
EVANS WAS HELD IN CUSTODY ON STATE CRIMINAL CHARGES.  BOTH PETITIONER
AND EVANS APPEALED THEIR CONVICTIONS TO THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT.  THAT COURT SET ASIDE EVANS' CONVICTION ON THE GROUND
THAT HIS ORAL CONFESSIONS TO THE POSTAL INSPECTOR SHOULD NOT HAVE BEEN
RECEIVED IN EVIDENCE AGAINST HIM.  375 F.2D 355, 361.  /1/  HOWEVER,
THE COURT, RELYING UPON DELLI PAOLI, AFFIRMED PETITIONER'S CONVICTION
BECAUSE THE TRIAL JUDGE INSTRUCTED THE JURY THAT ALTHOUGH EVANS'
CONFESSION WAS COMPETENT EVIDENCE AGAINST EVANS IT WAS INADMISSIBLE
HEARSAY AGAINST PETITIONER AND THEREFORE HAD TO BE DISREGARDED IN
DETERMINING PETITIONER'S GUILT OR INNOCENCE.  375 F.2D, AT 361-363. 
/2/  WE GRANTED CERTIORARI TO RECONSIDER DELLI PAOLI.  389 U.S. 818. 
THE SOLICITOR GENERAL HAS SINCE SUBMITTED A MEMORANDUM STATING THAT "IN
THE LIGHT OF THE RECORD IN THIS PARTICULAR CASE AND IN THE INTERESTS OF
JUSTICE, THE JUDGMENT BELOW SHOULD BE REVERSED AND THE CAUSE REMANDED
FOR A NEW TRIAL."  THE SOLICITOR GENERAL STATES THAT THIS DISPOSITION
IS URGED IN PART BECAUSE "(HERE IT HAS BEEN DETERMINED THAT THE
CONFESSION WAS WRONGLY ADMITTED AGAINST (EVANS) AND HIS CONVICTION HAS
BEEN REVERSED, LEADING TO A NEW TRIAL AT WHICH HE WAS ACQUITTED.  TO
ARGUE, IN THIS SITUATION, THAT (PETITIONER'S) CONVICTION SHOULD
NEVERTHELESS STAND MAY BE TO PLACE TOO GREAT A STRAIN UPON THE (DELLI
PAOLI) RULE-- AT LEAST, WHERE, AS HERE, THE OTHER EVIDENCE AGAINST
(PETITIONER) IS NOT STRONG."  WE HAVE CONCLUDED, HOWEVER, THAT DELLI
PAOLI SHOULD BE OVERRULED.  WE HOLD THAT, BECAUSE OF THE SUBSTANTIAL
RISK THAT THEY JURY, DESPITE INSTRUCTIONS TO THE CONTRARY, LOOKED TO
THE INCRIMINATING EXTRAJUDICIAL STATEMENTS IN DETERMINING PETITIONER'S
GUILT, ADMISSION OF EVANS' CONFESSION IN THIS JOINT TRIAL VIOLATED
PETITIONER'S RIGHT OF CROSS-EXAMINATION SECURED BY THE CONFRONTATION
CLAUSE OF THE SIXTH AMENDMENT.  WE THEREFORE OVERRULE DELLI PAOLI AND
REVERSE. 

THE BASIC PREMISE OF DELLI PAOLI WAS THAT IT IS "REASONABLY POSSIBLE
FOR THE JURY TO FOLLOW" SUFFICIENTLY CLEAR INSTRUCTIONS TO DISREGARD
THE CONFESSOR'S EXTRAJUDICIAL STATEMENT THAT HIS CODEFENDANT
PARTICIPATED WITH HIM IN COMMITTING THE CRIME.  252 U.S.,AT 239.  IF IT
WERE TRUE THAT THE JURY DISREGARDED THE REFERENCE TO THE CO-DEFENDANT,
NO QUESTION WOULD ARISE UNDER THE CONFRONTATION CLAUSE, BECAUSE BY
HYPOTHESIS THE CASE IS TREATED AS IF THE CONFESSOR MADE NO STATEMENT
INCULPATING THE NONCONFESSOR.  BUT SINCE DELLI APOLI WAS DECIDED THIS
COURT HAS EFFECTIVELY REPUDIATED ITS BASIC PREMISE.  BEFORE DISCUSSING
THIS, WE PAUSE TO OBSERVE THAT IN POINTER V. TEXAS, 380 U.S. 400, WE
CONFIRMED "THAT THE RIGHT OF CROSS-EXAMINATION IS INCLUDED IN THE RIGHT
OF AN ACCUSED IN A CRIMINAL CASE TO CONFRONT THE WITNESSES AGAINST HIM"
SECURED BY THE SIXTH AMENDMENT, ID., AT 404; "A MAJOR REASON
UNDERLYING THE CONSTITUTIONAL CONFRONTATION RULE IS TO GIVE A DEFENDANT
CHARGED WITH CRIME AN OPPORTUNITY TO CROSS-EXAMINE THE WITNESSES
AGAINST HIM."  ID., AT 406-407. 

WE APPLIED POINTER IN DOUGLAS V. ALABAMA, 380 U.S. 415, IN
CIRCUMSTANCES ANALOGOUS TO THOSE IN THE PRESNET CASE.  THERE TWO
PERSON, LOYD AND DOUGLAS, ACCUSED OF ASSAULT WITH INTENT TO MURDER,
WERE TRIED SEPARATELY.  LOYD WAS TRIED FIRST AND FOUND GUILTY.  AT
DOUGLAS' TRIAL THE STATE CALLED LOYD AS A WITNESS AGAINST HIM.  AN
APPEAL WAS PENDING FROM LOYD'S CONVICTION AND LOYD INVOKED THE
PRIVILEGE AGINST SELF-INCRIMINATION AND REFUSED TO ANSWER ANY
QUESTIONS.  THE PROSECUTION WAS PERMITTED TO TREAT LOYD AS A HOSTILE
WITNESS.  UNDER THE GUISE OF REFRESHING LOYD'S RECOLLECTION THE
PROSECUTOR QUESTIONED LOYD BY ASKING HIM TO CONFIRM OR DENY STATEMENTS
READ BY THE PROSECUTOR FROM A DOCUMENT PURPORTED TO BE LOYD'S
CONFESSION.  THESE STATEMENTS INCULPATED DOUGLAS IN THE CRIME.  WE HELD
THAT DOUGLAS' INABILITY TO CROSS-EXAMINE LOYD DENIED DOUGLAS "THE RIGHT
OF CROSS-EXAMINATION SECURED BY THE CONFRONTATION CLAUSE."  380 U.S.,AT
419.  WE NOTED THAT "EFFECTIVE CONFRONTATION OF LOYD WAS POSSIBLE ONLY
IF LOYD AFFIRMED THE STATEMENT AS HIS.  HOWEVER, LOYD DID NOT DO SO,
BUT RELIED ON HIS PRIVILEGE TO REFUSE TO ANSWER."  ID., AT 420.  THE
RISK OF PREJUDICE IN PETITIONER'S CASE WAS EVEN MORE SERIOUS THAN IN
DOUGLAS.  IN DOUGLAS WE SAID, "ALTHOUGH THE SOLICITOR'S READING OF
LOYD'S ALLEGED STATEMENT, AND LOYD'S REFUSALS TO ANSWER, WERE NOT
TECHNICALLY TESTIMONY, THE SOLICOTOR'S READING MAY WELL HAVE BEEN THE
EQUIVALENT IN THE JURY'S MIND OF TESTIMONY THAT LOYD IN FACT MADE THE
STATEMENT; AND LOYD'S RELIANCE UPON THE PRIVILEGE CREATED A SITUATION
IN WHICH THE JURY MIGHT IMPROPERLY INFER BOTH THAT THE STATEMENT HAD
BEEN MADE AND THAT IT WAS TRUE."  ID., AT 419.  HERE EVANS' ORAL
CONFESSIONS WERE IN FACT TESTIFIED TO, AND WERE THEREFORE ACTUALLY IN
EVIDENCE.  THAT TESTIMONY WAS LEGITIMATE EVIDENCE AGAINST EVANS AND TO
THAT EXTENT WAS PROPERLY BEFORE THE JURY DURING ITS DELIBERATIONS. 
EVEN GREATER, THEN, WAS THE LIKELIHOOD THAT THE JURY WOULD BELIEVE
EVANS MADE THE STATEMENTS AND THAT THEY WERE TRUE-- NOT JUST THE SELF
INCRIMINATING PORTIONS BUT THOSE IMPLICATING PETITIONER AS WELL. 
PLAINLY, THE INTRODUCTION OF EVANS' CONFESSION ADDED SUBSTANTIAL,
PERHAPS EVEN CRITICAL, WEIGHT TO THE GOVERNMENT'S CASE IN A FORM NOT
SUBJECT TO CROSS-EXAMINATION, SINCE EVANS DID NOT TAKE THE STAND. 
PETITIONER THUS WAS DENIED THE CONSTITUTIONAL RIGHT OF CONFRONTATION. 

DELLI PAOLI ASSUMED THAT THIS ENCROACHMENT ON THE RIGHT TO
CONFRONTATION COULD BE AVOIDED BY THE ISNRUCTION TO THE JURY TO
DISREGARD THE INADMISSIBLE HEARSAY EVIDENCE.  /3/  BUT, AS WE HAVE
SAID, THAT ASSUMPTION HAS SINCE BEEN EFFECTIVELY REPUDIATED.  TRUE, THE
REPUDIATION WAS NOT IN THE CONTEXT OF THE ADMISSION OF A CONFESSION
INCULPATING A CODEFENDANT BUT IN THE CONTEXT OF A NEW YORK RULE WHICH
SUBMITTED TO THE JURY THE QUESTION OF THE VOLUNTARINESS OF THE
CONFESSION ITSELF.  JACKSON V. DENNO, 378 U.S. 368.  NONEHTELESS THE
MESSAGE OF JACKSON FOR DELLI AOLI WAS CLEAR.  WE THERE HELD THAT A
DEFENDANT IS CONSTITUTIONALLY ENTITLED AT LEAST TO HAVE THE TRIAL JUDGE
FIRST DETERMINE WHETHER A CONFESSION WAS MADE VOLUNTARILY BEFORE
SUBMITTING IT TO THE JURY FOR AN ASSESSMENT OF ITS CREDIBILITY.  MORE
SPECIFICALLY, WE EXPRESSLY REJECTED THE PROPOSITION THAT A JURY, WHEN
DETERMINING THE CONFESSOR'S GUILT, COULD BE RELIED ON TO IGNORE HIS
CONFESSION OF GUILT SHOULD IT FIND THE CONFESSION INVOLUNTARY.  ID., AT
388-389.  SIGNIFICANTLY, WE SUPPORTED THAT CONCLUSION IN PART BY
RELIANCE UPON THE DISSENTING OPINION OF MR. JUSTICE FRANKFURTER FOR THE
FOUR JUSTICES WHO DISSENTED IN DELLI PAOLI.  ID., AT 388, N. 15. 

THAT DISSENT CHALLENGED THE BASIC PREMISE OF DELLI PAOLI THAT A
PROPERLY INSTRUCTED JURY WOULD IGNORE THE CONFESSOR'S INCULPATION OF
THE NONCONFESSOR IN DETERMINING THE LATTER'S GUILT.  "THE FACT OF THE
MATTER IS THAT TOO OFTEN SUCH ADMONITION AGAINST MISUSE IS
INTRINSICALLY INEFFECTIVE IN THAT THE EFFECT OF SUCH A NONADMISSIBLE
DECLARATION CANNOT BE WIPED FROM THE BRAINS OF THE JURORS.  THE
ADMONITION THEREFORE BECOMES A FUTILE COLLOCATION OF WORDS AND FAILS OF
ITS PURPOSE AS A LEGAL PROTECTION TO DEFENDANTS AGAINST WHOM SUCH A
DECLARATION SHOULD NOT TELL."  352 U.S.,AT 247.  THE DISSENT WENT ON TO
SAY, AS QUOTED IN THE CITED NOTE IN JACKSON, "THE GOVERNMENT SHOULD NOT
HAVE THE WINDFALL OF HAVING THE JURY BE INFLUENCED BY EVIDENCE AGAINST
A DEFENDANT WHICH, AS A MATTER OF LAW, THEY SHOULD N8T CONSIDER BUT
WHICH THEY CANNOT PUT OUT OF THEIR MINDS."  ID., AT 248.  TO THE SAME
EFFECT, AND ALSO CITED IN THE JACKSON NOTE, IS THE STATEMENT OF MR.
JUSTICE JACKSON IN HIS CONCURRING OPINION IN KRULEWITCH V. UNITED
STATES, 336 U.S. 440, 453:  "THE NAIVE ASSUMPTION THAT PREJUDICIAL
EFFECTS CAN BE OVERCOME BY INSTRUCTIONS TO THE JURY . . . ALL
PRACTICING LAWYERS KNOW TO BE UNMITIGATED FICTION . . . "  /4/ 

THE SIGNIFICANCE OF JACKSON FOR DELLI PAOLI WAS SUGGESTED BY CHIEF
JUSTICE TRAYNOR IN PEOPLE V. ARANDA, 63 CAL.2D 518, 528-529, 407 P.2D
265, 271-272: 

     "ALTHOUGH JACKSON WAS DIRECTLY CONCERNED WITH OBVIATING ANY

  RISK THAT A JURY MIGHT RELY ON AN UNCONSTITUTIONALLY OBTAINED

CONFESSION IN DETERMINING THE RISKS THAT THE JURY MAY RELY ON ANY

  INADMISSIBLE STATEMENTS.  IF IT IS A DENIAL OF DUE PROCESS TO

  RELY ON A JURY'S PRESUMED ABAILITY TO DISREGARD AN INVOLUNTARY

  CONFESSION, IT MAY ALSO BE A DENIAL OF DUE PROCESS TO RELY ON A

  JURY'S PRESUMED ABILITY TO DISREGARD A CODEFENDANT'S CONFESSION

  IMPLICATING ANOTHER DEFENDANT WHEN IT IS DETERMINING THAT

  DEFENDANT'S GUILT OR INNOCENCE. 

      "INDEED, THE LATTER TASK MAY BE AN EVEN MORE DIFFICULT ONE
FOR

  THE JURY TO PERFORM THAN THE FORMER.  UNDER THE NEW YORK

  PROCEDURE, WHICH JACKSON HELD VIOLATED DUE PROCESS, THE JURY WAS

  ONLY REQUIRED TO DISREGARD A CONFESSION IT FOUND TO BE

  INVOLUNTARY.  IF IT MADE SUCH A FINDING, THEN THE CONFESSION WAS

  PRESUMABLY OUT OF THE CASE.  IN JOINT TRIALS, HOWEVER, WHEN THE

  ADMISSIBLE CONFESSION OF ONE DEFENDANT INCULPATES ANOTHER

  DEFENDANT, THE CONFESSION IS NEVER DELETED FROM THE CASE AND THE

  JURY IS EXPECTED TO PERFORM THE OVERWHELMING TASK OF CONSIDERING

  IT IN DETERMINING THE GUILT OR INNOCENCE OF THE DECLARANT AND

  THEN OF IGNORING IT IN DETERMINING THE GUILT OR INNOCENCE OF ANY

  CODEFENDANTS OF THE DECLARANT.  A JURY CANNOT 'SEGREGATE EVIDENCE

  INTO SEPARATE INTELLECTUAL BOSES.'  . . . IT CANNOT DETERMINE
THAT

  A CONFESSION IS TRUE INSOFAR AS IT ADMITS THAT A HAS COMMITTED

  CRIMINAL ACTS WITH B AND AT THE SAME TIME EFFECTIVELY IGNORE THE

  INEVITABLE CONCLUSION THAT B HAS COMMITTED THOSE SAME CRIMINAL

  ACTS WITH A."  /5/ 

IN ADDITION TO JACKSON, OUR ACTION IN 1966 IN AMENDING RULE 14 OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE ALSO EVIDENCES OUR REPUDIATION
OF DELLI AOLI'S BASIC PREMISE.  RULE 14 AUTHORIZES A SEVERANCE WHERE IT
APPEARS THAT A DEFENDANT MIGHT BE PREJUDICED BY A JOINT TRIAL.  /6/
THE RULE WAS AMENDED IN 1966 TO PROVIDE EXPRESSLY THAT "(IN RULING ON A
MOTION BY A DEFENDANT FOR SEVERANCE THE COURT MAY ORDER THE ATTORNEY
FOR THE GOVERNMENT TO DELIVER TO THE COURT FOR INSPECTION IN CAMERA ANY
STATEMENTS OR CONFESSIONS MADE BY THE DEFENDANTS WHICH THE GOVERNMENT
INTENDS TO INTRODUCE IN EVIDENCE AT THE TRIAL."  THE ADVISORY COMMITTEE
ON RULES SAID IN EXPLANATION OF THE AMENDMENT: 

     "A DEFENDANT MAY BE PREJUDICED BY THE ADMISSION IN EVIDENCE

  AGAINST A CO-DEFENDANT OF A STATEMENT OR CONFESSION MADE BY THAT

  CO-DEFENDANT.  THIS PREJUDICE CANNOT BE DISPELLED BY

  CROSS-EXAMINATION IF THE CO-DEFENDANT DOES NOT TAKE THE STAND. 

  LIMITING INSTRUCTIONS TO THE JURY MAY NOT IN FACT ERASE THE

  PREJUDICE . . . 

"THE PURPOSE OF THE AMENDMENT IS TO PROVIDE A PROCEDURE WHEREBY

  THE ISSUE OF POSSIBLE PREJUDICE CAN BE RESOLVED ON THE MOTION FOR

  SEVERANCE . . . "  /7/ 

THOSE WHO HAVE DEFENDED RELIANCE ON THE LIMITING INSTRUCTION IN THIS
AREA HAVE CITED SEVERAL REASONS IN SUPPORT.  JUDGE LEARNED HAND, A
PARTICULARLY SEVERE CRITIC OF THE PROPOSITION THAT JURIES COULD BE
COUNTED ON TO DISREGARD INADMISSIBLE HEARSAY, /8/  WROTE THE OPINION
FOR THE SECOND CIRCUIT WHICH AFFIRMED DELLI PAOLI'S CONVICTION.  229
F.2D 319.  IN JUDGE HAND'S VIEW THE LIMITING INSTRUCTION, ALTHOUGH NOT
REALLY CAPABLE OF PREVENTING THE JURY FROM CONSIDERING THE PREJUDICIAL
EVIDENCE, DOES AS A MATTER OF FORM PROVIDE A WAY AROUND THE EXCLUIONARY
RULES OF EVIDENCE THAT IS DEFENSIBLE BECAUSE IT "PROBABLY FURTHERS,
RATHER THAN IMPEDES, THE SEARCH FOR TRUTH . . . "  NASH V. UNITED
STATES, 54 F.2D 1006, 1007.  INSOFAR AS THIS IMPLIES THE PROSECUTION
OUGHT NOT TO BE DENIED THE BENEFIT OF THE CONFESSION TO PROVE THE
CONFESSOR'S GUILT, /9/  HOWEVER, IT OVERLOOKS ALTERNATIVE WAYS OF
ACHIEVING THAT BENEFIT WITHOUT AT THE SAME TIME INFRINGING THE
NONCONFESSOR'S RIGHT OF CONFRONTATION.  /10/  WHERE VIABLE ALTERNATIVES
DO EXIST, IT IS DECEPTIVE TO RELY ON THE PURSUIT OF TRUTH TO DEFEND A
CLEARLY HARMFUL PRACTICE. 

ANOTHER REASON CITED IN DEFENDSE OF DELLI PAOLI IS THE JUSTIFICATION
FOR JOINT TRIALS IN GENERAL, THE ARGUMENT BEING THAT THE BENEFITS OF
JOINT PROCEEDINGS SHOULD NOT HAVE TO BE SACRIFICED BY REQUIRING
SEPARATE TRIALS IN ORDER TO USE THE CONFESSION AGAINST THE DECLARANT. 
JOINT TRIALS DO CONSERVE STATE FUNDS, DIMINISH INCONVENIENCE TO
WITNESSES AND PUBLIC AUTHORITIES, AND AVOID DELAYS IN BRINGING THOSE
ACCUSED OF CRIME TO TRIAL.  BUT THE ANSWER TO THIS ARGUMENT WAS
COGENTLY STATED BY JUDGE LEHMAN OF THE NEW YORK COURT OF APPEALS,
DISSENTING IN PEOPLE V. FISHER, 249 N.Y. 419, 432, 164 N.E. 336, 341: 

     "WE STILL ADHERE TO THE RULE THAT AN ACCUSED IS ENTITLED TO

  CONFRONTATION OF THE WITNESSES AGAINST HIM AND THE RIGHT TO

  CROSS-EXAMINE THEM . . . WE DESTROY THE AGE-OLD RULE WHICH IN THE

  PAST HAS BEEN REGARDED AS A FUNDAMENTAL PRINCIPLE OF OUR

  JURISPRUDENCE BY A LEGALISTIC FORMULA, REQUIRED OF THE JUDGE,

  THAT THE JURY MAY NOT CONSIDER ANY ADMISSIONS AGAINST ANY PARTY

  WHO DID NOT JOIN IN THEM.  WE SECURE GREATER SPEED, ECONOMY AND

  CONVENIENCE IN THE ADMINISTRATION OF THE LAW AT THE PRICE OF

  FUNDAMENTAL PRINCIPLES OF CONSTITUTIONAL LIBERTY.  THAT PRICE IS

  TOO HIGH." 

FINALLY, THE REASON ADVANCED BY THE MAJORITY IN DELLI PAOLI WAS TO
TIE THE RESULT TO MAINTENANCE OF THE JURY SYSTEM.  "UNLESS WE PROCEED
ON THE BASIS THAT THE JURY WILL FOLLOW THE COURT'S INSTRUCTIONS WHERE
THOSE INSTRUCTIONS ARE CLEAR AND THE CIRCUMSTANCES ARE SUCH THAT THE
JURY CAN REASONABLY BE EXPECTED TO FOLLOW THEM, THE JURY SYSTEM MAKES
LITTLE SENSE."  352 U.S.,AT 242.  WE AGREE THAT THERE ARE MANY
CIRCUMSTANCES IN WHICH THIS RELIANCE IS JUSTIFIED.  NOT EVERY ADMISSION
OF INADMISSIBLE HEARSAY OR OTHER EVIDENCE CAN BE CONSIDERED TO BE
REVERSIBLE ERROR UNAVOIDABLE THROUGH LIMITING INSTRUCTIONS; INSTANCES
OCCUR IN ALMOST EVERY TRIAL WHERE INADMISSIBLE EVIDENCE CREEPS IN,
USUALLY INADVERTENTLY.  "A DEFENDANT IS ENTITLED TO A FAIR TRIAL BUT
NOT A PERFECT ONE."  LUTWAK V. UNITED STATES, 344 U.S. 604, 619; SEE
HOPT V. UTAH, 120 U.S. 430, 438; CF. FED. RULE CRIM. PROC. 52(A).  IT
IS NOT UNREASONABLE TO CONCLUDE THAT IN MANY SUCH CASES THE JURY CAN
AND WILL FOLLOW THE TRIAL JUDGE'S INSTRUCTIONS TO DISREGARD SUCH
INFORMATION.  NEVERTHELESS, AS WAS RECOGNIZED IN JACKSON V. DENNO,
SUPRA, THERE ARE SOME CONTEXTS IN WHICH THE RISK THAT THE JURY WILL
NOT, OR CANNOT, FOLLOW INSTRUCTIONS IS SO GREAT, AND THE CONSEQUENCES
OF FAILURE SO VITAL TO THE DEFENDANT, THAT THE PRACTICAL AND HUMAN
LIMITATIONS OF THE JURY SYSTEM CANNOT BE IGNORED.  COMPARE HOPT V.
UTAH, SUPRA; THROCKMORTON V. HOLT, 180 U.S. 552, 567; MORA V. UNITED
STATES, 190 F.2D 749; HOLT V. UNITED STATES, 94 F.2D 90.  SUCH A
CONTEXT IS PRESENTED HERE, WHERE THE POWERFULLY INCRIMINATING
EXTRAJUDICIAL STATEMENTS OF A CODEFENDANT, WHO STANDS ACCUSED SIDE-BY
SIDE WITH THE DEFENDANT, ARE DELIBERATELY SPREAD BEFORE THE JURY IN A
JOINT TRIAL.  NOT ONLY ARE THE INCRIMINATIONS DEVASTATING TO THE
DEFENDANT BUT THEIR CREDIBILITY IS INEVITABLY SUSPECT, A FACT
RECOGNIZED WHEN ACCOMPLICES DO TAKE THE STAND AND THE JURY IS
INSTRUCTED TO WEIGH THEIR TESTIMONY CAREFULLY GIVEN THE RECOGNIZED
MOTIVATION TO SHIFT BLAME ONTO OTHERS.  /11/  THE UNRELIABILITY OF SUCH
EVIDNECE IS INTOLERABLY COMPOUNDED WHEN THE ALLEGED ACCOMPLICE, AS
HERE, DOES NOT TESTIFY AND CANNOT BE TESTED BY CROSS-EXAMINATION.  IT
WAS AGAINST SUCH THREATS TO A FAIR TRIAL THAT THE CONFRONTATION CLAUSE
WAS DIRECTED.  /12/  POINTER V. TEXAS, SUPRA. 

WE, OF COURSE, ACKNOWLEDGE THE IMPOSSIBILITY OF DETERMINING WHETHER
IN FACT THE JURY DID OR DID NOT IGNORE EVANS' STATEMENT INCULPATING
PETITIONER IN DETERMINING PETITIONER'S GUILT.  BUT THAT WAS ALSO TRUE
IN THE ANALOGOUS SITUATION IN JACKSON V. DENNO, AND WAS NOT REGARDED AS
MILITATING AGAINST STRIKING DOWN THE NEW YORK PROCEDURE THERE
INVOLVED.  IT WAS ENOUGH THAT THAT PROCEDURE POSED "SUBSTANTIAL THREATS
TO A DEFENDANT'S CONSTITUTIONAL RIGHTS TO HAVE AN INVOLUNTARY
CONFESSION ENTIRELY DISREGARDED AND TO HAVE THE COERCION ISSUE FAIRLY
AND RELIABLY DETERMINED.  THESE HAZARDS WE CANNOT IGNORE."  378 U.S.,AT
389.  HERE THE INTRODUCTION OF EVANS' CONFESSION POSED A SUBSTANTIAL
THREAT TO PETITIONER'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, AND
THIS IS A HAZARD WE CANNOT IGNORE.  DESPITE THE CONCEDEDLY CLEAR
INSTRUCTIONS TO THE JURY TO DISREGARD EVANS' INADMISSIBLE HEARSAY
EVIDENCE INCULPATING PETITIONER, IN THE CONTEXT OF A JOINT TRIAL WE
CANNOT ACCEPT LIMITING INSTRUCTIONS AS AN ADEQUATE SUBSTITUTE FOR
PETITIONER'S CONSTITUTIONAL RIGHT OF CROSS-EXAMINATION.  THE EFFECT IS
THE SAME AS IF THERE HAD BEEN NO INSTRUCTION AT ALL.  SEE ANDERSON V.
UNITED STATES, 318 U.S. 350, 356-357; CF. BURGETT V. TEXAS, 389 U.S.
109, 155. 

              REVERSED. 

/1/  THE TRIAL BEGAN JUNE 20, 1966, ONE WEEK AFTER THE DECISION IN
MIRANDA V. ARIZONA, 384 U.S. 436.  THE COURT OF APPEALS HELD, 375 F.2D,
AT 357, THAT MIRANDA AND ITS COMPANION CASES WERE THERFORE APPLICABLE
AND CONTROLLING ON THE QUESTION OF THE ADMISSIBILITY IN EVIDENCE OF THE
POSTAL INSPECTOR'S TESTIMONY AS TO EVANS' ADMISSIONS.  JOHNSON V. NEW
JERSEY, 384 U.S. 719.  ON APRIL 8, 1966, ST. LOUIS POLICE OFFICERS,
WITHOUT GIVING EVANS PRELIMINARY WARNINGS OF ANY KIND AND IN THE
ABSENCE OF COUNSEL, OBTAINED AN ORAL CONESSION DURING AN INTERROGATION
AT THE CITY JAIL.  THE POLICE INFORMED THE POSTAL INSPECTOR, WHO
INTERROGATED EVANS AT THE JAIL ON APRIL 11 AND MAY 4, 1966; HE OBTAINED
THE ORAL CONFESSION EXPRESSLY IMPLICATING PETITIONER ON THE LATTER
DATE.  ON THE MERITS, THE COURT OF APPEALS HELD, 375 F.2D, AT 361, THAT
EVANS' ADMISSIONS TO THE POSTAL INSPECTOR "WERE TAINTED AND INFECTED BY
THE POISON OF THE PRIOR, CONCEDEDLY UNCONSTITUTIONAL CONFESSION
OBTAINED BY THE LOCAL OFFICER," AND WERE THEREFORE INADMISSIBLE UNDER
WESTOVER V. UNITED STATES, DECIDED WITH MIRANDA, 384 U.S.,AT 494-497. 
ON THE RETRIAL, EVANS WAS ACQUITTED. 

/2/  AT THE CLOSE OF THE GOVERNMENT'S DIRECT CASE, THE TRIAL JUDGE
CAUTIONED THE JURY THAT EVANS' ADMISSION IMPLICATING PETITIONER "IF
USED, CAN ONLY BE USED AGAINST THE DEFENDANT EVANS.  IT IS HEARSAY
INSOFAR AS THE DEFENDANT GEORGE WILLIAM BRUTON IS CONCERNED, AND YOU
ARE NOT TO CONSIDER IT IN ANY RESPECT TO THE DEFENDANT BRUTON, BECAUSE
INSOFAR AS HE IS CONCERNED IT IS HEARSAY." 

THE INSTRUCTIONS TO THE JURY INCLUDED THE FOLLOWING: 

"A CONFESSION MADE OUTSIDE OF COURT BY ONE DEFENDANT MAY NOT BE
CONSIDERED AS EVIDENCE AGAINST THE OTHER DEFENDANT, WHO WAS NOT PRESENT
AND IN NO WAY A PARTY TO THE CONFESSION.  THEREFORE, IF YOU FIND THAT A
CONFESSION WAS IN FACT VOLUNTARILY AND INTENTIONALLY MADE BY THE
DEFENDANT EVANS, YOU SHOULD CONSIDER IT AS EVIDENCE IN THE CASE AGAINST
EVANS, BUT YOU MUST NOT CONSIDER IT, AND SHOULD DISREGARD IT, IN
CONSIDERING THE EVIDENCE IN THE CASE AGAINST THE DEFENDANT BRUTON. 

        .          .          .          . 

"IT IS YOUR DUTY TO GIVE SEPARATE, PERSONAL CONSIDERATION TO THE
CAUSE OF EACH INDIVIDUAL DEFENDANT.  WHEN YOU DO SO, YOU SHOULD ANALYZE
WHAT THE EVIDENCE SHOWS WITH RESPECT TO THAT INDIVIDUAL, LEAVING OUT OF
CONSIDERATION ENTIRELY ANY EVIDENCE ADMITTED SOLELY AGAINST SOME OTHER
DEFENDANT.  EACH DEFENDANT IS ENTITLED TO HAVE HIS OWN ACTS AND
STATEMENTS AND THE OTHER EVIDENCE IN THE CASE WHICH MAY BE APPLICABLE
TO HIM." 

/3/  WE EMPHASIZE THAT THE HEARSAY STATEMENT INCULPATING PETITIONER
WAS CLEARLY INADMISSIBLE AGAINST HIM UNDER TRADITIONAL RULES OF
EVIDENCE, SEE KRULEWITCH V. UNITED STATES, 336 U.S. 440; FISWICK V.
UNITED STATES, 329 U.S. 211, THE PROBLEM ARISING ONLY BECAUSE THE
STATEMENT WAS (BUT FOR THE VIOLATION OF WESTOVER, SUPRA, N. 1)
ADMISSIBLE AGAINST THE DECLARANT EVANS.  SEE C. MCCORMICK, EVIDENCE
SEC. 239 (1954); 4 J.WIGMORE, EVIDENCE 1048-1049 (3D ED. 1940); MORGAN,
ADMISSIONS AS AN EXCEPTION TO THE HEARSAY RULE, 30 YALE L.J. 355
(1921).  SEE GENERALLY LEVIE, HEARSAY AND CONSPIRACY, 52 MICH.L.REV. 
1159 (1954); COMMENT, POST-CONSPIRACY ADMISSIONS IN JOINT PROSECUTIONS,
24 U.CHI.L.REV.  710 (1957); NOTE, CRIMINAL CONSPIRACY, 72 HARV.
L.REV.  920, 984-990 (1959).  THERE IS NOT BEFORE US, THEREFORE, ANY
RECOGNIZED EXCEPTION TO THE HEARSAY RULE INSOFAR AS PETITIONER IS
CONCERNED AND WE INTIMATE NO VIEW WHATEVER THAT SUCH EXCEPTIONS
NECESSARILY RAISE QUESTIONS UNDER THE CONFRONTATION CLAUSE.  SEE
POINTER V. TEXAS, 380 U.S. 400; BARBER V. PAGE, 390 U.S. 719; MATTOX V.
UNITED STATES, 156 U.S. 237.  SEE GENERALLY MCCORMICK, SUPRA, SEC. 224;
5 WIGMORE, SUPRA, 1362-1365, 1397; MORGAN, HEARSAY DANGERS AND THE
APPLICATION OF THE HEARSAY CONCEPT, 62 HARV. L.REV.  177 (19468). 

/4/  SEVERAL CASES SINCE DELLI PAOLI HAVE REFUSED TO CONSIDER AN
INSRUCTION AS INEVITABLY SUFFICIENT TO AVOID THE SETTING ASIDE OF
CONVICTIONS.  SEE, E.G., UNITED STATES EX REL. FLOYD V. WILKINS, 367
F.2D 990; UNITED STATES V. BOZZA, 365 F.2D 206; GREENWELL V. UNITED
STATES, 119 U.S.APP.D.C. 43, 336 F.2D 962; JONES V. UNITED STATES, 119
U.S.APP.D.C. 284, 342 F.2D 863; BARTON V. UNITED STATES, 263 F.2D 894;
UNITED STATES EX REL. HILL V. DEEGAN, 268 F.SUPP.  580.  IN BOZZA THE
COURT OF APPEALS FOR THE SECOND CIRCUIT STATED: "IT IS IMPOSSIBLE
REALISTICALLY TO SUPPOSE THAT WHEN THE TWELVE GOOD MEN AND WOMEN HAD
JONES' CONFESSION IN THE PRIVACY OF THE JURY ROOM, NOT ONE YIELDED TO
THE NIGH IRRESTIBLE TEMPTATION TO FILL IN THE BLANKS WITH THE KEYS
KUHLE HAD PROVIDED AND ASK HIMSELF THE INTELLIGENT QUESTION TO WHAT
EXTENT JONES' STATEMENT SUPPORTED KUHLE'S TESTIMONY, OR THAT IF ANYONE
DID YIELD, HIS COLLEAGUES EFFECTIVELY PERSUADED HIM TO DISMISS THE
ANSWERS FROM HIS MIND."  365 F.2D, AT 215.     STATE DECISIONS WHICH
HAVE REJECTED DELLI PAOLI INCLUDE PEOPLE V. ARANDA, 63 CAL.2D 518, 407
P.2D 265; STATE V. YOUNG, 46 N.J. 152, 215 A.2D 352.  SEE ALSO PEOPLE
V. BARBARO, 395 ILL. 264, 69 N.E.2D 692; STATE V. ROSEN, 151 OHIO ST.
339, 86 N.E.2D 24. 

IT HAS BEEN SUGGESTED THAT THE LIMITING INSTRUCTION ACTUALLY
COMPOUNDS THE JURY'S DIFFICULTY IN DISREGARDING THE INADMISSIBLE
HEARSAY.  SEE BROEDER, THE UNIVERSITY OF CHICAGO JURY PROJECT, 38
NEB.L.REV.  744, 753-755 (1959). 

/5/  SEE POINTER V. TEXAS, SUPRA, AT 405:  "INDEED, WE HAVE
EXPRESSLY DECLARED THAT TO DEPRIVE AN ACCUSED OF THE RIGHT TO CROSS
EXAMINE THE WITNESSES AGAINST HIM IS A DENIAL OF THE FOURTEENTH
AMENDMENT'S GUARANTEE OF DUE PROCESS OF LAW." 

/6/  JOINDER OF DEFENDANTS IS GOVERNED BY RULES 8(B) AND 14 OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE.  "THE RULES ARE DESIGNED TO
PROMOTE ECONOMY AND EFFICIENCY AND TO AVOID A MULTIPLICITY OF TRIALS,
WHERE THESE OBJECTIVES CAN BE ACHIEVED WITHOUT SUBSTANTIAL PREJUDICE TO
THE RIGHT OF THE DEFENDANTS TO A FAIR TRIAL."  DALEY V. UNITED STATES,
231 F.2D 123, 125.  AN IMPORTANT ELEMENT OF A FAIR TRIAL IS THAT A JURY
CONSIDER ONLY RELEVANT AND COMPETENT EVIDENCE BEARING ON THE ISSUE OF
GUILT OR INNOCENCE.  SEE, E.G., BLUMENTHAL V. UNITED STATES, 332 U.S.
539, 559-560. 

/7/  34 F.R.D. 419.  SEE GENERALLY NOTE, JOINT AND SINGLE TRIALS
UNDER RULES 8 AND 14 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, 74
YALE L.J. 553 (1965). 

/8/  JUDGE HAND ADDRESSED THE SUBJECT SEVERAL TIMES.  THE LIMITING
INSTRUCTION, HE SAID, IS A "RECOMMENDATION TO THE JURY OF A MENTAL
GYMNASTIC WHICH IS BEYOND, NOT ONLY THEIR POWERS, BUT ANYBODY'S ELSE,"
NASH V. UNITED STATES, 54 F.2D 1006, 1007; "NOBODY CAN INDEED FAIL TO
DOUBT WHETHER THE CAUTION IS EFFECTIVE, OR WHETHER USUALLY THE
PRACTICAL RESULT IS NOT TO LET IN HEARSAY," UNITED STTES V. GOTTFRIED,
165 F.2D 360, 367; "IT IS INDEED VERY HARD TO BELIEVE THAT A JURY WILL,
OR FOR THAT MATTER CAN, IN PRACTICE OBSERVE THE ADMONITION," DELLI
PAOLI V. UNITED STATES, 229 F.2D 319, 321.  JUDGE HAND REFERRED TO THE
INSRUCTION AS A "PLACEBO," MEDICALLY DEFINED AS "A MEDICINAL LIE." 
JUDGE JEROME FRANK SUGGESTED THAT ITS LEGAL EQUIVALENT "IS A KIND OF
'JUDICIAL LIE':  IT UNDERMINES A MORAL RELATIONSHIP BETWEEN THE COURTS,
THE JURORS, AND THE PUBLIC; LIKE ANY OTHER JUDICIAL DECEPTION, IT
DAMAGES THE DECENT JUDICIAL ADMINISTRATION OF JUSTICE."  UNITED STATES
V. GRUNEWALD, 233 F.2D 556, 574.  SEE ALSO 8 WIGMORE, SUPRA, N. 3,
2272, AT 416. 

COMPARE E. MORGAN, SOME PROBLEMS OF PROOF UNDER THE ANGLO-AMERICAN
SYSTEM OF LITIGATION 105 (1956), WHO SUGGESTS THAT THE USE OF LIMITING
INSTRUCTIONS FOSTERS AN INCONSISTENT ATTITUDE TOWARD JURIES BY
"TREATING THEM AT TIMES AS A GROUP OF LOW-GRADE MORONS AND AT OTHER
TIMES AS MEN ENDOWED WITH A SUPERHUMAN ABILITY TO CONTROL THEIR
EMOTIONS AND INTELLECTS."  SEE ALSO SHEPARD V. UNITED STTES, 290 U.S.
96, 104; MELTZER, INVOLUNTARY CONFESSIONS:  THE ALLOCATION OF
RESPONSIBILITY BETWEEN JUDGE AND JURY, 21 U.CHI.L.REV.  317, 326
(1954). 

/9/  IN THIS CASE, HOWEVER, EVANS' CONVICTION WAS REVERSED ON THE
GROUND THAT HIS CONFESSIONS WERE INADMISSIBLE IN EVIDENCE EVEN AGAINST
HIM, AND ON HIS RETRIAL HE WAS ACQUITTED.  IN PEOPLE V. ARANDA, SUPRA,
63 CAL.2D, AT 526, 407 P.2D, AT 270, IT WAS SAID:  "WHEN, HOWEVER, THE
CONFESSION IMPLICATING BOTH DEFENDANTS IS NOT ADMISSIBLE AT ALL, THERE
IS NO LONGER ROOM FOR COMPROMISE.  THE RISK OF PREJUDICING THE
NONCONFESSING DEFENDANT CAN NO LONGER BE JUSTIFIED BY THE NEED FOR
INTRODUCING THE CONFESSION AGAINST THE ONE WHO MADE IT.  ACCORDINGLY,
WE HAVE HELD THAT THE ERRONEOUS ADMISSION INTO EVIDENCE OF A CONFESSION
IMPLICATING BOTH DEFENDANTS IS NOT NECESSARILY CURED BY AN INSTRUCTION
THAT IT IS TO BE CONSIDERED ONLY AGAINST THE DECLARANT."  SEE ALSO
JONES V. UNITED STATES AND GREENWELL V. UNITED STATES, BOTH SUPRA, N.
4. 

/10/  SOME COURTS HAVE REQUIRED DELETION OF REFERENCES TO
CODEFENDANTS WHERE PRACTICABLE.  SEE, E.G., OLIVER V. UNITED STATES,
335 F.2D 724; PEOPLE V. VITAGLIANO, 15 N.Y.2D 360, 206 N.E.2D 864;
PEOPLE V. LA BELLE, 18 N.Y.2D 405, 222 N.E.2D 727.  FOR CRITICISMS
SUGGESTING THAT DELETIONS (REDACTION) FROM THE CONFESSION ARE
INEFFECTIVE, SEE, E.G., NOTE, 72 HARV. L.REV.  920, 990 (1959);
COMMENT, 24 U.CHI.L.REV.  710, 713 (1957); NOTE, 74 YALE L.J. 553, 564
(1965). 

IN THIS CASE EVANS' CONFESSIONS WERE OFFERED IN EVIDENCE THROUGH THE
ORAL TESTIMONY OF THE POSTAL INSPECTOR.  IT HAS BEEN SAID:  "WHERE THE
CONFESSION IS OFFERED IN EVIDENCE BY MEANS OF ORAL TESTIMONY, REDACTION
IS PATENTLY IMPRACTICAL.  TO EXPECT A WITNESS TO RELATE X'S CONFESSION
WITHOUT INCLUDING ANY OF ITS REFERENCES TO Y IS TO IGNORE HUMAN
FRAILTY.  AGAIN, IT IS UNLIKELY THAT AN INTENTIONAL OR ACCIDENTAL SLIP
BY THE WITNESS COULD BE REMEDIED BY INSTRUCTIONS TO DISREGARD."  NOTE,
3 COL.J.OF LAW & SOC.PROB.  80, 88 (1967). 

SOME COURTS HAVE PROMULGATED RULES GOVERNING THE USE OF THE
CONFESSIONS.  SEE N. 4, SUPRA.  SEE ALSO RULES SUGGESTED BY JUDGE
FRANK, DISSENTING IN DELLI PAOLI V. UNITED STATES, 229 F.2D 319, 324. 

/11/  SEE CRAWFORD V. UNITED STATES, 212 U.S. 183, 204; CAMINETTI V.
UNITED STATES, 242 U.S. 470, 495; STONEKING V. UNITED STATES, 232 F.2D
385. 

/12/  IT IS SUGGESTED THAT BECAUSE THE EVIDENCE IS SO UNRELIABLE THE
NEED FOR CROSS-EXAMINATION IS OBVIATED.  THIS WOULD CERTAINLY SEEM
CONTRARY TO THE ACCEPTANCE OF THE RULE OF EVIDENCE WHICH WOULD REQUIRE
EXCLUSION OF THE CONFESSION AS TO BRUTON AS "INADMISSIBLE HEARSAY, A
PRESUMPTIVELY UNRELIABLE OUT-OF-COURT STATEMENT OF A NONPARTY WHO WAS
NOT A WITNESS SUBJECT TO CROSS-EXAMINATION."  POST, AT 138.  "THE
THEORY OF THE HEARSAY RULE IS THAT THE MANY POSSIBLE DEFICIENCIES,
SUPPRESSIONS, SOURCES OF ERROR AND UNTRUSTWORTHINESS, WHICH LIE
UNDERNEATH THE BARE UNTESTED ASSERTION OF A WITNESS, MAY BE BEST
BROUGHT TO LIGHT AND EXPOSED BY THE TEST OF CROSS-EXAMINATION."  5
WIGMORE, EVIDENCE 1362, AT 3.  THE REASON FOR EXCLUDING THIS EVIDENCE
AS AN EVIDENTIARY MATTER ALSO REQUIRES ITS EXCLUSION AS A
CONSTITUTIONAL MATTER.  SURELY THE SUGGESTION IS NOT THAT POINTER V.
TEXAS, FOR EXAMPLE, BE REPUDIATED AND THAT ALL HEARSAY EVIDENCE BE
ADMISSIBLE SO LONG AS THE JURY IS PROPERLY INSTRUCTED TO WEIGH IT IN
LIGHT OF "ALL THE DANGERS OF INACCURACY WHICH CHARACTERIZE HEARSAY
GENERALLY."  POST, AT 141. 

MR. JUSTICE BLACK CONCURS IN THE RESULT FOR THE REASONS STATED IN
THE DISSENT IN DELLI PAOLI V. UNITED STATES, 352 U.S. 232, 246. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE STEWART, CONCURRING. 

I JOIN THE OPINION AND JUDGMENT OF THE COURT.  ALTHOUGH I DID NOT
AGREE WITH THE DECISION IN JACKSON V. DENNO, 378 U.S. 368 (SEE ID., AT
427), I ACCEPT ITS HOLDING AND SHARE THE COURT'S CONCLUSION THAT IT
COMPELS THE OVERRULING OF DELLI PAOLI V. UNITED STATES, 352 U.S. 232. 

QUITE APART FROM JACKSON V. DENNO, HOWEVER, I THINK IT CLEAR THAT
THE UNDERLYING RATIONALE OF THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE
PRECLUDES RELIANCE UPON CAUTIONARY INSTRUCTIONS WHEN THE HIGHLY
DAMAGING OUT-OF-COURT STATEMENT OF A CODEFENDANT, WHO IS NOT SUBJECT TO
CROSS-EXAMINATION, IS DELIBERATELY PLACED BEFORE THE JURY AT A JOINT
TRIAL.  A BASIC PREMISE OF THE CONFRONTATION CLAUSE, IT SEEMS TO ME, IS
THAT CERTAIN KINDS OF HEARSAY (SEE, E.G., POINTER V. TEXAS, 380 U.S.
400; DOUGLAS V. ALABAMA, 380 U.S. 415) ARE AT ONCE SO DAMAGING, SO
SUSPECT, AND YET SO DIFFICULT TO DISCOUNT, THAT JURORS CANNOT BE
TRUSTED TO GIVE SUCH EVIDENCE THE MINIMAL WEIGHT IT LOGICALLY DESERVES,
WHATEVER INSTRUCTIONS THE TRIAL JUDGE MIGHT GIVE.  SEE THE COURT'S
OPINION, ANTE, AT 136, N. 12.  IT IS FOR THIS VERY REASON THAT AN OUT
OF-COURT ACCUSATION IS UNIVERSALLY CONCEDED TO BE CONSTITUTIONALLY
INADMISSIBLE AGAINST THE ACCUSED, RATHER THAN ADMISSIBLE FOR THE LITTLE
IT MAY BE WORTH.  EVEN IF I DID NOT CONSIDER JACKSON V. DENNO
CONTROLLING, THEREFORE, I WOULD STILL AGREE THAT DELLI PAOLI MUST BE
OVERRULED. 

MR. JUSTICE WHITE, DISSENTING. 

WHETHER OR NOT EVANS' CONFESSION WAS INADMISSIBLE AGAINST HIM,
NOTHING IN THAT CONFESSION WHICH WAS RELEVANT AND MATERIAL TO BRUTON'S
CASE WAS ADMISSIBLE AGAINST BRUTON.  AS TO HIM IT WAS INADMISSIBLE
HEARSAY, A PRESUMPTIVELY UNRELIABLE OUT-OF-COURT STATEMENT OF A NON
PARTY WHO WAS NOT A WITNESS SUBJECT TO CROSS-EXAMINATION.  ADMITTING
EVANS' CONFESSION AGAINST BRUTON WOULD REQUIRE A NEW TRIAL UNLESS THE
ERROR WAS HARMLESS. 

THE TRIAL JUDGE IN THIS CASE HAD NO DIFFERENT VIEW.  HE ADMITTED
EVANS' CONFESSION ONLY AGAINST EVANS, NOT AGAINST BRUTON, AND CAREFULLY
INSTRUCTED THE JURY TO DISREGARD IT IN DETERMINING BRUTON'S GUILT OR
INNOCENCE.  /1A/  CONTRARY TO ITS RULING JUST A DECADE AGO IN DELLI
PAOLI V. UNITED STATES, 352 U.S. 232 (1957), THE COURT NOW HOLDS THIS
INSTRUCTION INSUFFICIENT AND REVERSES BRUTON'S CONVICTION.  IT WOULD
APPARENTLY ALSO REVERSE EVERY OTHER CASE WHERE A COURT ADMITS A
CODEFENDANT'S CONFESSION IMPLICATING A DEFENDANT, REGARDLESS OF
CAUTIONARY INSTRUCTIONS AND REGARDLESS OF THE CIRCUMSTANCES.  I DISSENT
FROM THIS EXCESSIVELY RIGID RULE.  THERE IS NOTHING IN THIS RECORD TO
SUGGEST THAT THE JURY DID NOT FOLLOW THE TRIAL JUDGE'S INSTRUCTIONS. 
THERE HAS BEEN NO NEW LEARNING SINCE DELLI PAOLI INDICATING THAT JURIES
ARE LESS RELIABLE THAN THEY WERE CONSIDERED IN THAT CASE TO BE.  THERE
IS NOTHING IN THE PRIOR DECISIONS OF THIS COURT WHICH SUPPORTS THIS NEW
CONSTITUTIONAL RULE. 

THE COURT CONCEDES THAT THERE ARE MANY INSTANCES IN WHICH RELIANCE
ON LIMITING INSTRUCTIONS IS JUSTIFIED-- "NOT EVERY ADMISSION OF
INADMISSIBLE HEARSAY OR OTHER EVIDENCE CAN BE CONSIDERED TO BE
REVERSIBLE ERROR UNAVOIDABLE THROUGH LIMITING INSTRUCTIONS; INSTANCES
OCCUR IN ALMOST EVERY TRIAL WHERE INADMISSIBLE EVIDENCE CREEPS IN,
USUALLY INADVERTENTLY."  ANTE, AT 135.  THE COURT ASSERTS, HOWEVER,
THAT THE HAZARDS TO THE DEFENDANT OF PERMITTING THE JURY TO HEAR A
CODEFENDANT'S CONFESSION IMPLICATING HIM ARE SO SEVERE THAT WE MUST
ASSUME THE JURY'S INABILITY TO HEED A LIMITING INSTRUCTION.  THIS WAS
THE HOLDING OF THE COURT WITH RESPECT TO A CONFESSION OF THE DEFENDANT
HIMSELF IN JACKSION V. DENNO, 378 U.S. 368 (1964).  THERE ARE GOOD
REASONS, HOWEVER, FOR DISTINGUISHING THE CODEFENDANT'S CONFESSION FROM
THAT OF THE DEFENDANT HIMSELF AND FOR TRUSTING IN THE JURY'S ABILITY TO
DISREGARD THE FORMER WHEN INSTRUCTED TO DO SO. 

FIRST, THE DEFENDANT'S OWN CONFESSION IS PROBABLY THE MOST PROBATIVE
AND DAMAGING EVIDENCE THAT CAN BE ADMITTED AGAINST HIM.  THOUGH ITSELF
AN OUT-OF-COURT STATEMENT, IT IS ADMITTED AS RELIABLE EVIDENCE BECAUSE
IT IS AN ADMISSION OF GUILT BY THE DEFENDANT AND CONSTITUTES DIRECT
EVIDENCE OF THE FACTS TO WHICH IT RELATES.  EVEN THE TESTIMONY OF AN
EYEWITNESS MAY BE LESS RELIABLE THAN THE DEFENDANT'S OWN CONFESSION. 
AN OBSERVER MAY NOT CORRECTLY PERCEIVE, UNDERSTAND, OR REMEMBER THE
ACTS OF ANOTHER, BUT THE ADMISSIONS OF A DEFENDANT COME FROM THE ACTOR
HIMSELF, THE MOST KNOWLEDGEABLE AND UNIMPEACHABLE SOURCE OF INFORMATION
ABOUT HIS PAST CONDUCT.  CERTAINLY, CONFESSIONS HAVE PROFOUND IMPACT ON
THE JURY, SO MUCH SO THAT WE MAY JUSTIFIABLY DOUBT ITS ABILITY TO PUT
THEM OUT OF MIND EVEN IF TOLD TO DO SO.  THIS WAS THE CONCLUSION OF THE
COURT IN JACKSON, AND I CONTINUE TO BELIEVE THAT CASE TO BE SOUND LAW. 

SECOND, IT MUST BE REMEMBERED THAT A COERCED CONFESSION IS NOT
EXCLUDED BECAUSE IT IS THOUGHT TO BE UNRELIABLE.  REGARDLESS OF HOW
TRUE IT MAY BE, IT IS EXCLUDED BECAUSE SPECIFIC PROVISIONS OF THE
CONSTITUTION DEMAND IT, WHATEVER THE CONSEQUENCES FOR THE CRIMINAL
TRIAL.  IN JACKSON ITSELF IT WAS STATED THAT "(IT IS NOT AXIOMATIC THAT
A DEFENDANT IN A CRIMINAL CASE IS DEPRIVED OF DUE PROCESS OF LAW IF HIS
CONVICTION IS FOUNDED, IN WHOLE OR IN PART, UPON AN INVOLUNTARY
CONFESSION, WITHOUT REGARD FOR THE TRUTH OR FALSITY OF THE CONFESSION .
. . "  378 U.S.,AT 376.  SEE ID., AT 385-386.  IN GIVING PROSPECTIVE
EFFECT ONLY TO ITS RULES IN MIRANDA V. ARIZONA, 384 U.S. 436 (1966),
THE COURT SPECIFICALLY REAFFIRMED THE PRINCIPLE THAT COERCED
CONFESSIONS ARE INADMISSIBLE REGARDLESS OF THEIR TRUTH OR FALSITY,
JOHNSON V. NEW JERSEY, 384 U.S. 719, 729, N. 9 (1966).  THE COURT
ACKNOWLEDGED THAT THE RULES OF MIRANDA APPLY TO SITUATIONS "IN WHICH
THE DANGER (OF UNRELIABLE STATEMENTS) IS NOT NECESSARILY AS GREAT AS
WHEN THE ACCUSED IS SUBJECTED TO OVERT AND OBVIOUS COERCION."  ID., AT
730.  AND, IN TEHAN V. UNITED STATES EX REL. SHOTT, 382 U.S. 406, 416
(1966), HOLDING THE RULE OF GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965),
NOT RETROACTIVE, THE COURT QUITE EXPLICITLY STATED THAT "THE FIFTH
AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT AN ADJUNCT TO
THE ASCERTAINMENT OF TRUTH.  THAT PRIVILEGE, LIKE THE GUARANTEES OF THE
FOURTH AMENDMENT, STANDS AS A PROTECTION OF QUITE DIFFERENT
CONSTITUTIONAL VALUES . . . "  THE EXCLUSION OF PROBATIVE EVIDENCE IN
ORDER TO SERVE OTHER ENDS IS SOUND JURISPRUDENCE BUT, AS THE COURT
CONCLUDED IN JACKSON V. DENNO, 378 U.S.,AT 382, JURIES WOULD HAVE GREAT
DIFFICULTY IN UNDERSTANDING THAT POLICY, IN PUTTING THE CONFESSION
ASIDE, AND IN FINDING THE CONFESSION INVOLUNTARY IF THE CONSEQUENCE WAS
THAT IT COULD NOT BE USED IN CONSIDERING A DEFENDANT'S GUILT OR
INNOCENCE. 

THE SITUATION IN THIS CASE IS VERY DIFFERENT.  HERE WE DEAL WITH A
CODEFENDANT'S CONFESSION WHICH IS ADMITTED ONLY AGAINST THE CODEFENDANT
AND WITH A FIRM INSTRUCTION TO THE JURY TO DISREGARD IT IN DETERMINING
THE DEFENDANT'S GUILT OR INNOCENCE.  THAT CONFESSION CANNOT COMPARE
WITH THE DEFENDANT'S OWN CONFESSION IN EVIDENTIARY VALUE.  AS TO THE
DEFENDANT, THE CONFESSION OF THE CODEFENDANT IS WHOLLY INADMISSIBLE. 
IT IS HEARSAY, SUBJECT TO ALL THE DANGERS OF INACCURACY WHICH
CHARACTERIZE HEARSAY GENERALLY.  FURTHERMORE, THE CODEFENDANT IS NO
MORE THAN AN EYEWITNESS, THE ACCURACY OF WHOSE TESTIMONY ABOUT THE
DEFENDANT'S CONDUCT IS OPEN TO MORE DOUBT THAN WOULD BE THE DEFENDANT'S
OWN ACCOUNT OF HIS ACTIONS.  MORE THAN THIS, HOWEVER, THE STATEMENTS OF
A CODEFENDANT HAVE TRADITIONALLY BEEN VIEWED WITH SPECIAL SUSPICION. 
CRAWFORD V. UNITED STATES, 212 U.S. 183, 204 (1909); HOLMGREN V. UNITED
STATES, 217 U.S. 509, 523-524 (1910).  SEE ALSO CAMINETTI V. UNITED
STATES, 242 U.S. 470, 495 (1917); MATHES, JURY INSTRUCTION AND FORMS
FOR FEDERAL CRIMINAL CASES, 27 F.R.D. 39, 68-69 (1961).  DUE TO HIS
STRONG MOTIVATION TO IMPLICATE THE DEFENDANT AND TO EXONERATE HIMSELF,
A CODEFENDANT'S STATEMENTS ABOUT WHAT THE DEFENDANT SAID OR DID ARE
LESS CREDIBLE THAN ORDINARY HEARSAY EVIDENCE.  WHEREAS THE DEFENDANT'S
OWN CONFESSION POSSESSES GREATER RELIABILITY AND EVIDENTIARY VALUE THAN
ORDINARY HEARSAY, THE CODEFENDANT'S CONFESSION IMPLICATING THE
DEFENDANT IS INTRINSICALLY MUCH LESS RELIABLE. 

THE DEFENDANT'S OWN CONFESSION MAY NOT BE USED AGAINST HIM IF
COERCED, NOT BECAUSE IT IS UNTRUE BUT TO PROTECT OTHER CONSTITUTIONAL
VALUES.  THE JURY MAY HAVE GREAT DIFFICULTY UNDERSTANDING SUCH A RULE
AND FOLLOWING AN INSTRUCTION TO DISREGARD THE CONFESSION.  IN CONTRAST,
THE CODEFENDANT'S ADMISSIONS CANNOT ENTER INTO THE DETERMINATION OF THE
DEFENDANT'S GUILT OR INNOCENCE BECAUSE THEY ARE UNRELIABLE.  THIS THE
JURY CAN BE TOLD AND CAN UNDERSTAND.  JUST AS THE COURT BELIEVES THAT
JURIES CAN REASONABLY BE EXPECTED TO DISREGARD ORDINARY HEARSAY OR
OTHER INADMISSIBLE EVIDENCE WHEN INSTRUCTED TO DO SO, I BELIEVE JURIES
WILL DISREGARD THE PORTIONS OF A CODEFENDANT'S CONFESSION IMPLICATING
THE DEFENDANT WHEN SO INSTRUCTED.  INDEED, IF WE MUST PICK AND CHOOSE
BETWEEN HEARSAY AS TO WHICH LIMITING INSTRUCTIONS WILL BE DEEMED
EFFECTIVE AND HEARSAY THE ADMISSION OF WHICH CANNOT BE CURED BY
INSTRUCTIONS, CODEFENDANTS' ADMISSIONS BELONG IN THE FORMER CATEGORY
RATHER THAN THE LATTER, FOR THEY ARE NOT ONLY HEARSAY BUT HEARSAY WHICH
IS DOUBLY SUSPECT.  IF THE COURT IS RIGHT IN BELIEVING THAT A JURY CAN
BE COUNTED ON TO IGNORE A WIDE RANGE OF HEARSAY STATEMENTS WHICH IT IS
TOLD TO IGNORE, IT SEEMS VERY ODD TO ME TO QUESTION ITS ABILITY TO PUT
ASIDE THE CODEFENDANT'S HEARSAY STATEMENTS ABOUT WHAT THE DEFENDANT
DID. 

IT IS A COMMON EXPERIENCE OF ALL MEN TO BE INFORMED OF "FACTS"
RELEVANT TO AN ISSUE REQUIRING THEIR JUDGMENT, AND YET TO DISREGARD
THOSE "FACTS" BECAUSE OF SUFFICIENT GROUNDS FOR DISCREDITING THEIR
VERACITY OR THE RELIABILITY OF THEIR SOURCE.  RESPONSIBLE JUDGMENT
WOULD BE IMPOSSIBLE BUT FOR THE ABILITY OF MEN TO FOCUS THEIR ATTENTION
WHOLLY ON RELIABLE AND CREDIBLE EVIDENCE, AND JURYMEN ARE NO LESS
CAPABLE OF EXERCISING THIS CAPACITY THAN OTHER MEN.  BECAUSE I HAVE NO
DOUBT THAT SERIOUS-MINDED AND RESPONSIBLE MEN ARE ABLE TO SHUT THEIR
MINDS TO UNRELIABLE INFORMATION WHEN EXERCISING THEIR JUDGMENT, I
REJECT THE ASSUMPTION OF THE MAJORITY THAT GIVING INSTRUCTIONS TO A
JURY TO DISREGARD A CODEFEVDANT'S CONFESSION IS AN EMPTY GESTURE. 

THE RULE WHICH THE COURT ANNOUNCES TODAY WILL SEVERELY LIMIT THE
CIRCUMSTANCES IN WHICH DEFENDANTS MAY BE TRIED TOGETHER FOR A CRIME
WHICH THEY ARE BOTH CHARGED WITH COMMITTING.  UNQUESTIONABLY, JOINT
TRIALS ARE MORE ECONOMICAL AND MINIMIZE THE BURDEN ON WITNESSES,
PROSECUTORS, AND COURTS.  THEY ALSO AVOID DELAYS IN BRINGING THOSE
ACCUSED OF CRIME TO TRIAL.  THIS MUCH THE COURT CONCEDES.  IT IS ALSO
WORTH SAYING THAT SEPARATE TRIALS ARE APT TO HAVE VARYING CONSEQUENCES
FOR LEGALLY INDISTINGUISHABLE DEFENDANTS.  THE UNFAIRNESS OF THIS IS
CONFIMED BY THE COMMON PROSECUTORIAL EXPERIENCE OF SEEING CODEFENDANTS
WHO ARE TRIED SEPARATELY STRENUOUSLY JOCKEYING FOR POSITION WITH REGARD
TO WHO SHOULD BE THE FIRST TO BE TRIED. 

IN VIEW OF THE PRACTICAL DIFFICULTIES OF SEPARATE TRIALS AND THEIR
POTENTIAL UNFAIRNESS, I AM DISAPPOINTED THAT THE COURT HAS NO SPELLED
OUT HOW THE FEDERAL COURTS MIGHT CONDUCT THEIR BUSINESS CONSISTENT WITH
TODAY'S OPINION.  I WOULD SUPPOSE THAT IT WILL BE NECESSARY TO EXCLUDE
ALL EXTRAJUDICIAL CONFESSIONS UNLESS ALL PORTIONS OF THEM WHICH
IMPLICATE DEFENDANTS OTHER THAN THE DECLARANT ARE EFFECTIVELY DELETED. 
EFFECTIVE DELETION WILL PROBABLY REQUIRE NOT ONLY OMISSION OF ALL
DIRECT AND INDIRECT INCULPATIONS OF CODEFENDANTS BUT ALSO OF ANY
STATEMENT THAT COULD BE EMPLOYED AGAINST THOSE DEFENDANTS ONCE THEIR
IDENTITY IS OTHERWISE ESTABLISHED.  OF COURSE, THE DELETION MUST NOT BE
SUCH THAT IT WILL DISTORT THE STATEMENTS TO THE SUBSTANTIAL PREJUDICE
OF EITHER THE DECLARANT OR THE GOVERNMENT.  IF DELETION IS NOT
FEASIBLE, THEN THE GOVERNMENT WILL HAVE TO CHOOSE EITHER NOT TO USE THE
CONFESSION AT ALL OR TO TRY THE DEFENDANTS SEPARATELY.  TO SAVE TIME,
MONEY, AND EFFORT, THE GOVERNMENT MIGHT BEST SEEK A RULING AT THE
EARLIEST POSSIBLE STAGE OF THE TRIAL PROCEEDINGS AS TO WHETHER THE
CONFESSION IS ADMISSIBLE ONCE OFFENDING PORTIONS ARE DELETED.  THE
FAILURE OF THE GOVERNMENT TO ADOPT AND FOLLOW PROPER PROCEDURES FOR
INSURING THAT THE INADMISSIBLE PORTIONS OF CONFESSIONS ARE EXCLUDED
WILL BE RELEVANT TO THE QUESTION OF WHETHER IT WAS HARMLESS ERROR FOR
THEM TO HAVE GOTTEN BEFORE THE JURY.  ORAL STATEMENTS, SUCH AS THAT
INVOLVED IN THE PRESENT CASE, WILL PRESENT SPECIAL PROBLEMS, FOR THERE
IS A RISK THAT THE WITNESS IN TESTIFYING WILL INADVERTENTLY EXCEED
PERMISSIBLE LIMITS.  EXCEPT FOR RECOMMENDING THAT CAUTION BE USED WITH
REGARD TO SUCH ORAL STATEMENTS, IT IS DIFFICULT TO ANTITIPATE THE
ISSUES WHICH WILL ARISE IN CONCRETE FACTUAL SITUATIONS. 

I WOULD HOPE, BUT AM NOT SURE, THAT BY USING THESE PROCEDURES THE
FEDERAL COURTS WOULD ESCAPE REVERSAL UNDER TODAY'S RULING.  EVEN SO, I
PERSIST IN BELIEVING THAT THE REVERSAL OF DELLI PAOLI UNNECESSARILY
BURDENS THE ALREADY DIFFICULT TASK OF CONDUCTING CRIMINAL TRIALS, AND
THEREFORE I DISSENT IN THIS CASE. 

/1/  AS THE COURT OBSERVES, "(IF . . . THE JURY DISREGARDED THE
REFERENCE TO THE CODEFENDANT, NO QUESTION WOULD ARISE UNDER THE
CONFRONTATION CLAUSE . . . "  ANTE, AT 126.  BECAUSE IN MY VIEW JURIES
CAN REASONABLY BE RELIED UPON TO DISREGARD THE CODEFENDANT'S REFERENCES
TO THE DEFENDANT, THERE IS NO NEED TO EXPLORE THE SPECIAL
CONSIDERATIONS INVOLVED IN THE CONFRONTATION CLAUSE. 

MR. JUSTICE HARLAN JOINS THIS OPINION WITHOUT ABANDONING HIS
ORIGINAL DISAGREMENT WITH JACKSON V. DENNO, 378 U.S. 368, 427,
EXPRESSED IN HIS DISSENTING OPINION IN THAT CASE. 

DANIEL P. REARDON, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
PETITIONER. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL VINSON, ROBERT S.
RIFKIND, AND BEATRICE ROSENBERG. 
..END :











DUNCAN V. LOUISIANA, 391 U.S. 145 


       DUNCAN V. LOUISIANA. 

        APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

        NO. 410.  ARGUED JANUARY 17, 1968.-- DECIDED MAY 20, 1968. 


UNDER LOUISIANA LAW SIMPLE BATTERY IS A MISDEMEANOR PUNISHABLE BY A
MAXIMUM OF TWO YEARS' IMPRISONMENT AND A $300 FINE.  APPELLANT WAS
CONVICTED OF SIMPLE BATTERY AND SENTENCED TO 60 DAYS IN PRISON AND A
FINE OF $150.  HE HAD REQUESTED A JURY TRIAL WHICH WAS DENIED BECAUSE
THE LOUISIANA CONSTITUTION GRANTS JURY TRIALS ONLY IN CASES WHERE
CAPITAL PUNISHMENT OR IMPRISONMENT AT HARD LABOR MAY BE IMPOSED.  THE
LOUISIANA SUPREME COURT DENIED CERTIORARI.  HELD: 

1.  SINCE TRIAL BY JURY IN CRIMINAL CASES IS FUNDAMENTAL TO THE
AMERICAN SCHEME OF JUSTICE, THE FOURTEENTH AMENDMENT GUARANTEES A RIGHT
OF JURY TRIAL IN ALL CRIMINAL CASES WHICH, WERE THEY TRIED IN A FEDERAL
COURT, WOULD COME WITHIN THE SIXTH AMENDMENT'S GUARANTEE OF TRIAL BY
JURY.  PP. 147-158. 

2.  THE PENALTY AUTHORIZED FOR A PARTICULAR CRIME IS OF MAJOR
RELEVANCE IN DETERMINING WHETHER IT IS A SERIOUS ONE SUBJECT TO THE
MANDATES OF THE SIXTH AMENDMENT, AND IT IS SUFFICIENT HERE, WITHOUT
DEFINING THE BOUNDARY BETWEEN PETTY OFFENSES AND SERIOUS CRIMES, TO
HOLD THAT A CRIME PUNISHABLE BY TWO YEARS IN PRISON IS A SERIOUS CRIME
AND THAT APPELLANT WAS ENTITLED TO A JURY TRIAL.  PP. 159-162. 

250 LA. 253, 195 SO.2D 142, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

APPELLANT, GARY DUNCAN, WAS CONVICTED OF SIMPLE BATTERY IN THE
TWENTY-FIFTH JUDICIAL DISTRICT COURT OF LOUISIANA.  UNDER LOUISIANA LAW
SIMPLE BATTERY IS A MISDEMEANOR, PUNISHABLE BY A MAXIMUM OF TWO YEARS'
IMPRISONMENT AND A $300 FINE.  APPELLANT SOUGHT TRIAL BY JURY, BUT
BECAUSE THE LOUISIANA CONSTITUTION GRANTS JURY TRIALS ONLY IN CASES IN
WHICH CAPITAL PUNISHMENT OR IMPRISONMENT AT HARD LABOR MAY BE IMPOSED,
/1/  THE TRIAL JUDGE DENIED THE REQUEST.  APPELLANT WAS CONVICTED AND
SENTENCED TO SERVE 60 DAYS IN THE PARISH PRISON AND PAY A FINE OF
$150.  APPELLANT SOUGHT REVIEW IN THE SUPREME COURT OF LOUISIANA,
ASSERTING THAT THE DENIAL OF JURY TRIAL VIOLATED RIGHTS GUARANTEED TO
HIM BY THE UNITED STATES CONSTITUTION.  THE SUPREME COURT, FINDING "(NO
ERROR OF LAW IN THE RULING COMPLAINED OF," DENIED APPELLANT A WRIT OF
CERTIORARI.  /2/  PURSUANT TO 28 U.S.C. 1257(2) APPELLANT SOUGHT REVIEW
IN THIS COURT, ALLEGING THAT THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION SECURE THE RIGHT TO JURY TRIAL IN STATE
CRIMINAL PROSECUTIONS WHERE A SENTENCE AS LONG AS TWO YEARS MAY BE
IMPOSED.  WE NOTED PROBABLE JURISDICTION, /3/  AND SET THE CASE FOR
ORAL ARGUMENT WITH NO. 52, BLOOM V. ILLINOIS, POST, P. 194. 

APPELLANT WAS 19 YEARS OF AGE WHEN TRIED.  WHILE DRIVING ON HIGHWAY
23 IN PLAQUEMINES PARISH ON OCTOBER 18, 1966, HE SAW TWO YOUNGER
COUNSINS ENGAGED IN A CONVERSATION BY THE SIDE OF THE ROAD WITH FOUR
WHITE BOYS.  KNOWING HIS COUSINS, NEGROES WHO HAD RECENTLY TRANSFERRED
TO A FORMERLY ALL-WHITE HIGH SCHOOL, HAD REPORTED THE OCCURRENCE OF
RACIAL INCIDENTS AT THE SCHOOL, DUNCAN STOPPED THE CAR, GOT OUT, AND
APPROACHED THE SIX BOYS.  AT TRIAL THE WHITE BOYS AND A WHITE ONLOOKER
TESTIFIED, AS DID APPELLANT AND HIS COUNSIN.  THE TESTIMONY WAS IN
DISPUTE ON MANY POINTS, BUT THE WITNESSES AGREED THAT APPELLANT AND THE
WHITE BOYS SPOKE TO EACH OTHER, THAT APPELLANT ENCOURAGED HIS COUNSINS
TO BREAK OFF THE ENCOUNTER AND ENTER HIS CAR, AND THAT APPELLANT WAS
ABOUT TO ENTER THE CAR HIMSELF FOR THE PURPOSE OF DRIVING AWAY WITH HIS
COUNSIN.  THE WHITES TESTIFIED THAT JUST BEFORE GETTING IN THE CAR
APPELLANT SLAPPED HERMAN LANDRY, ONE OF THE WHITE BOYS, ON THE ELBOW. 
THE NEGROES TESTIFIED THAT APPELLANT HAD NOT SLAPPED LANDRY, BUT HAD
MERELY TOUCHED HIM.  THE TRIAL JUDGE CONCLUDED THAT THE STATE HAD
PROVED BEYOND A REASONABLE DOUBT THAT DUNCAN HAD COMMITTED SIMPLE
BATTERY, AND FOUND HIM GUILTY. 

        I. 

THE FOURTEENTH AMENDMENT DENIES THE STATES THE POWER TO "DEPRIVE ANY
PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW."  IN
RESOLVING CONFLICTING CLAIMS CONCERNING THE MEANING OF THIS SPACIOUS
LANGUAGE, THE COURT HAS LOOKED INCREASINGLY TO THE BILL OF RIGHTS FOR
GUIDANCE; MANY OF THE RIGHTS GUARANTEED BY THE FIRST EIGHT AMENDMENTS
TO THE CONSTITUTION HAVE BEEN HELD TO BE PROTECTED AGAINST STATE ACTION
BY THE DUR PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THAT CLAUSE NOW
PROTECTS THE RIGHT TO COMPENSATION FOR PROPERTY TAKEN BY THE STATE; /4/
THE RIGHTS OF SPEECH, PRESS, AND RELIGION COVERED BY THE FIRST
AMENDMENT; /5/  THE FOURTH AMENDMENT RIGHTS TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES AND TO HAVE EXCLUDED FROM CRIMINAL
TRIALS ANY EVIDENCE ILLEGALLY SEIZED; /6/  THE RIGHT GUARANTEED BY THE
FIFTH AMENDMENT TO BE FREE OF COMPELLED SELF-INCRIMINATION; /7/  AND
THE SIXTH AMENDMENT RIGHTS TO COUNSEL, /8/  TO A SPEEDY /9/  AND PUBLIC
/10/  TRIAL, TO CONFRONTATION OF OPPOSING WITNESSES, /11/  AND TO
COMPULSORY PROCESS FOR OBTAINING WITNESSES.  /12/ 

THE TEST FOR DETERMINING WHETHER A RIGHT EXTENDED BY THE FIFTH AND
SIXTH AMENDMENTS WITH RESPECT TO FEDERAL CRIMINAL PROCEEDINGS IS ALSO
PROTECTED AGAINST STATE ACTION BY THE FOURTEENTH AMENDMENT HAS BEEN
PHRASED IN A VARIETY OF WAYS IN THE OPINIONS OF THIS COURT.  THE
QUESTION HAS BEEN ASKED WHETHER A RIGHT IS AMONG THOSE "'FUNDAMENTAL
PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR
CIVIL AND POLITICAL INSTITUTINS,'" POWELL V. ALABAMA, 287 U.S. 45, 67
(1932); /13/  WHETHER IT IS "BASIC IN OUR SYSTEM OF JURISPRUDENCE," IN
RE OLIVER, 333 U.S. 257, 273 (1948); AND WHETHER IT IS "A FUNDAMENTAL
RIGHT, ESSENTIAL TO A FAIR TRIAL," GIDEON V. WAINWRIGHT, 372 U.S. 335,
343-344 (1963); MALLOY V. HOGAN, 378 U.S. 1, 6 (1964); POINTER V.
TEXAS, 380 U.S. 400, 403 (1965).  THE CLAIM BEFORE US IS THAT THE RIGHT
TO TRIAL BY JURY GUARANTEED BY THE SIXTH AMENDMENT MEETS THESE TESTS. 
THE POSITION OF LOUISIANA, ON THE OTHER HAND, IS THAT THE CONSTITUTION
IMPOSES UPON THE STATES NO DUTY TO GIVE A JURY TRIAL IN ANY CRIMINAL
CASE, REGARDLESS OF THE SERIOUSNESS OF THE CRIME OR THE SIZE OF THE
PUNISHMENT WHICH MAY BE IMPOSED.  BECAUSE WE BELIEVE THAT TRIAL BY JURY
IN CRIMINAL CASES IS FUNDAMENTAL TO THE AMERICAN SCHEME OF JUSTICE, WE
HOLD THAT THE FOURTEENTH AMENDMENT GUARANTEES A RIGHT OF JURY TRIAL IN
ALL CRIMINAL CASES WHICH-- WERE THEY TO BE TRIED IN A FEDERAL COURT--
WOULD COME WITHIN THE SIXTH AMENDMENT'S GUARANTEE.  /14/  SINCE WE
CONSIDER THE APPEAL BEFORE US TO BE SUCH A CASE, WE HOLD THAT THE
CONSTITUTION WAS VIOLATED WHEN APPELLANT'S DEMAND FOR JURY TRIAL WAS
REFUSED. 

THE HISTORY OF TRIAL BY JURY IN CRIMINAL CASES HAS BEEN FREQUENTLY
TOLD.  /15/  IT IS SUFFICIENT FOR PRESENT PURPOSES TO SAY THAT BY THE
TIME OUR CONSTITUTION WAS WRITTEN, JURY TRIAL IN CRIMINAL CASES HAD
BEEN IN EXISTENCE IN ENGLAND FOR SEVERAL CENTURIES AND CARRIED
IMPRESSIVE CREDENTIALS TRACED BY MANY TO MAGNA CARTA.  /16/  ITS
PRESERVATION AND PROPER OPERATION AS A PROTECTION AGAINST ARBITRARY
RULE WERE AMONG THE MAJOR OBJECTIVES OF THE REVOLUTIONARY SETTLEMENT
WHICH WAS EXPRESSED IN THE DECLARATION AND BILL OF RIGHTS OF 1689 IN
THE 18TH CENTURY BLACKSTONE COULD WRITE: 

"OUR LAW HAS THEREFORE WISELY PLACED THIS STRONG AND TWO-FOLD
BARRIER, OF A PRESENTMENT AND A TRIAL BY JURY, BETWEEN THE LIBERTIES OF
THE PEOPLE AND THE PREROGATIVE OF THE CROWN.  IT WAS NECESSARY, FOR
PRESERVING THE ADMIRABLE BALANCE OF OUR CONSTITUTION, TO VEST THE
EXECUTIVE POWER OF THE LAWS IN THE PRINCE:  AND YET THIS POWER MIGHT BE
DANGEROUS AND DESTRUCTIVE TO THAT VERY CONSTITUTION, IF EXERTED WITHOUT
CHECK OR CONTROL, BY JUSTICES OF OYER AND TERMINER OCCASIONALLY NAMED
BY THE CROWN; WHO MIGHT THEN, AS IN FRANCE OR TURKEY, IMPRISON,
DISPATCH, OR EXILE ANY MAN THAT WAS OBNOXIOUS TO THE GOVERNMENT, BY AN
INSTANT DECLARATION THAT SUCH IS THEIR WILL AND PLEASURE.  BUT THE
FOUNDERS OF THE ENGLISH LAW HAVE, WITH EXCELLENT FORECAST, CONTRIVED
THAT . . . THE TRUTH OF EVERY ACCUSATION, WHETHER PREFERRED IN THE
SHAPE OF INDICTMENT, INFORMATION, OR APPEAL, SHOULD AFTERWARDS BE
CONFIRMED BY THE UNANIMOUS SUFFRAGE OF TWELVE OF HIS EQUALS AND
NEIGHBOURS, INDIFFERENTLY CHOSEN AND SUPERIOR TO ALL SUSPICION."  /17/ 

JURY TRIAL CAME TO AMERICAN WITH ENGLISH COLONISTS, AND RECEIVED
STRONG SUPPORT FROM THEM.  ROYAL INTERFERENCE WITH THE JURY TRIAL WAS
DEEPLY RESENTED.  AMONG THE RESOLUTIONS ADOPTED BY THE FIRST CONGRESS
OF THE AMERICAN COLONIES (THE STAMP ACT CONGRESS) ON OCTOBER 19, 1765--
RESOLUTIONS DEEMED BY THEIR AUTHORS TO STATE "THE MOST ESSENTIAL RIGHTS
AND LIBERTIES OF THE COLONISTS"  /18/  -- WAS THE DECLARATION: 

"THAT TRIAL BY JURY IS THE INHERENT AND INVALUABLE RIGHT OF EVERY
BRITISH SUBJECT IN THESE COLONIES."  THE FIRST CONTINENTAL CONGRESS, IN
THE RESOLVE OF OCTOBER 14, 1774, OBJECTED TO TRIALS BEFORE JUDGES
DEPENDENT UPON THE CROWN ALONE FOR THEIR SALARIES AND TO TRIALS IN
ENGLAND FOR ALLEGED CRIMES COMMITTED IN THE COLONIES; THE CONGRESS
THEREFORE DECLARED: 

"THAT THE RESPECTIVE COLONIES ARE ENTITLED TO THE COMMON LAW OF
ENGLAND, AND MORE ESPECIALLY TO THE GREAT AND INESTIMABLE PRIVILEGE OF
BEING TRIED BY THEIR PEERS OF THE VICINAGE, ACCORDING TO THE COURSE OF
THAT LAW."  /19/ THE DECLARATION OF INDEPENDENCE STATED SOLEMN
OBJECTIONS TO THE KING'S MAKING "JUDGES DEPENDENT ON HIS WILL ALONE,
FOR THE TENURE OF THEIR OFFICES, AND THE AMOUNT AND PAYMENT OF THEIR
SALARIES," TO HIS "DEPRIVING US IN MANY CASES, OF THE BENEFITS OF TRIAL
BY JURY," AND TO HIS "TRANSPORTING US BEYOND SEAS TO BE TRIED FOR
PRETENDED OFFENSES."  THE CONSTITUTION ITSELF, IN ART. III, SEC. 2,
COMMANDED: 

      "THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT,
SHALL

  BE BY JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE

  SAID CRIMES SHALL HAVE BEEN COMMITTED." 

OBJECTIONS TO THE CONSTITUTION BECAUSE OF THE ABSENCE OF A BILL OF
RIGHTS WERE MET BY THE IMMEDIATE SUBMISSION AND ADOPTION OF THE BILL OF
RIGHTS.  INCLUDED WAS THE SIXTH AMENDMENT WHICH, AMONG OTHER THINGS,
PROVIDED: 

     "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE

  RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE

  STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED." 

/20/ 

THE CONSTITUTIONS ADOPTED BY THE ORIGINAL STATES GUARANTEED JURY
TRIAL.  ALSO, THE CONSTITUTION OF EVERY STATE ENTERING THE UNION
THEREAFTER IN ONE FORM OR ANOTHER PROTECTED THE RIGHT TO JURY TRIAL IN
CRIMINAL CASES. 

EVEN SUCH SKELETAL HISTORY IS IMPRESSIVE SUPPORT FOR CONSIDERING THE
RIGHT TO JURY TRIAL IN CRIMINAL CASES TO BE FUNDAMENTAL TO OUR SYSTEM
OF JUSTICE, AN IMPORTANCE FREQUENTLY RECOGNIZED IN THE OPINIONS OF THIS
COURT.  FOR EXAMPLE, THE COURT HAS SAID: 

"THOSE WHO EMIGRATED TO THIS COUNTRY FROM ENGLAND BROUGHT WITH HIM
THIS GREAT PRIVILEGE 'AS THEIR BIRTHRIGHT AND INHERITANCE, AS A PART OF
THAT ADMIRABLE COMMON LAW WHICH HAD FENCED AROUND AND INTERPOSED
BARRIERS ON EVERY SIDE AGAINST THE APPROACHES OF ARBITRARY POWER.'" 
/21/ 

JURY TRIAL CONTINUES TO RECEIVE STRONG SUPPORT.  THE LAWS OF EVERY
STATE GUARANTEE A RIGHT TO JURY TRIAL IN SERIOUS CRIMINAL CASES; NO
STATE HAS DISPENSED WITH IT; NOR ARE THERE SIGNIFICANT MOVEMENTS
UNDERWAY TO DO SO.  INDEED, THE THREE MOST RECENT STATE CONSTITUTIONAL
REVISIONS, IN MARYLAND, MICHIGAN, AND NEW YORK, CAREFULLY PRESERVED THE
RIGHT OF THE ACCUSED TO HAVE THE JUDGMENT OF A JURY WHEN TRIED FOR A
SERIOUS CRIME.  /22/ 

WE ARE AWARE OF PRIOR CASES IN THIS COURT IN WHICH THE PREVAILING
OPINION CONTAINS STATEMENTS CONTRARY TO OUR HOLDING TODAY THAT THE
RIGHT TO JURY TRIAL IN SERIOUS CRIMINAL CASES IS A FUNDAMENTAL RIGHT
AND HENCE MUST BE RECOGNIZED BY THE STATES AS PART OF THEIR OBLIGATION
TO EXTEND DUE PRODESS OF LAW TO ALL PERSONS WITHIN THEIR JURISDICTION. 
LOUISIANA RELIES ESPECIALLY ON MAXWELL V. DOW, 176 U.S. 581 (1900);
PALKO V. CONNECTICUT, 302 U.S. 319 (1937); AND SNYDER V. MASSACHUSETTS,
291 U.S. 97 (1934).  NONE OF THESE CASES, HOWEVER, DEALT WITH A STATE
WHICH HAD PURPORTED TO DISPENSE ENTIRELY WITH A JURY TRIAL IN SERIOUS
CRIMINAL CASES.  MAXWELL HELD THAT NO PROVISION OF THE BILL OF RIGHTS
APPLIED TO THE STATES-- A POSITION LONG SINCE REPUDIATED-- AND THAT THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT PREVENT A STATE
FROM TRYING A DEFENDANT FOR A NONCAPITAL OFFENSE WITH FEWER THAN 12 MEN
ON THE JURY.  IT DID NOT DEAL WITH A CASE IN WHICH NO JURY AT ALL HAD
BEEN PROVIDED.  IN NEITHER PALKO NOR SNYDER WAS JURY TRIAL ACTUALLY AT
ISSUE, ALTHOUGH BOTH CASES CONTAIN IMPORTANT DICTA ASSERTING THAT THE
RIGHT TO JURY TRIAL IS NOT ESSENTIAL TO ORDERED LIBERTY AND MAY BE
DISPENSED WITH BY THE STATES REGARDLESS OF THE SIXTH AND FOURTEENTH
AMENDMENTS.  THESE OBSERVATIONS, THOUGH WEIGHTY AND RESPECTABLE, ARE
NEVERTHELESS DICTA, UNSUPPORTED BY HOLDINGS IN THIS COURT THAT A STATE
MAY REFUSE A DEFENDANT'S DEMAND FOR A JURY TRIAL WHEN HE IS CHARGED
WITH A SERIOUS CRIME.  PERHAPS BECAUSE THE RIGHT TO JURY TRIAL WAS NOT
DIRECTLY AT STAKE, THE COURT'S REMAKRS ABOUT THE JURY IN PALKO AND
SNYDER TOOK NO NOTENOTE OF PAST OR CURRENT DEVELOPMENTS REGARDING JURY
TRIALS, DID NOT CONSIDER ITS PURPOSES AND FUNCTIONS, ATTEMPTED NO
INQUIRY INTO HOW WELL IT WAS PERFORMING ITS JOB, AND DID NOT DISCUSS
POSSIBLE DISTINCTIONS BETWEEN CIVIL AND CRIMINAL CASES.  IN MALLOY V.
HOGAN, SUPRA, THE COURT REJECTED PALKO'S DISCUSSION OF THE SELF
INCRIMINATION CLAUSE.  RESPECTFULLY, WE REJECT THE PRIOR DICTA
REGARDING JURY TRIAL IN CRIMINAL CASES. 

THE GUARANTEES OF JURY TRIAL IN THE FEDERAL AND STATE CONSTITUTIONS
REFLECT A PROFOUND JUDGMENT ABOUT THE WAY IN WHICH LAW SHOULD BE
ENFORCED AND JUSTICE ADMINISTERED.  A RIGHT TO JURY TRIAL IS GRANTED TO
CRIMINAL DEFENDANTS IN ORDER TO PREVENT OPPRESSION BY THE GOVERNMENT. 
/23/  THOSE WHO WROTE OUR CONSTITUTIONS KNEW FROM HISTORY AND
EXPERIENCE THAT IT WAS NECESSARY TO PROTECT AGAINST UNFOUNDED CRIMINAL
CHARGES BROUGHT TO ELIMINATE ENEMIES AND AGAINST JUDGES TOO RESPONSIVE
TO THE VOICE OF HIGHER AUTHORITY.  THE FRAMERS OF THE CONSTITUTIONS
STROVE TO CREATE AN INDEPENDENT JUDICIARY BUT INSISTED UPON FURTHER
PROTECTION AGAINST ARBITRARY ACTION.  PROVIDING AN ACCUSED WITH THE
RIGHT TO BE TRIED BY A JURY OF HIS PEERS GAVE HIM AN INESTIMABLE
SAFEGUARD AGAINST THE CORRUPT OR OVERZEALOUS PROSECUTOR AND AGAINST THE
COMPLIANT, BIASED, OR ECCENTRIC JUDGE.  IF THE DEFENDANT PREFERRED THE
COMMON-SENSE JUDGMENT OF A JURY TO THE MORE TUTORED BUT PERHAPS LESS
SYMPATHETIC REACTION OF THE SINGLE JUDGE, HE WAS TO HAVE IT.  BEYOND
THIS, THE JURY TRIAL PROVISIONS IN THE FEDERAL AND STATE CONSTITUTIONS
REFLECT A FUNDAMENTAL DECISION ABOUT THE EXERCISE OF OFFICIAL POWER-- A
RELUCTANCE TO ENTRUST PLENARY POWERS OVER THE LIFE AND LIBERTY OF THE
CITIZEN TO ONE JUDGE OR TO A GROUP OF JUDGES.  FEAR OF UNCHECKED POWER,
SO TYPICAL OF OUR STATE AND FEDERAL GOVERNMENTS IN OTHER RESPECTS,
FOUND EXPRESSION IN THE CRIMINAL LAW IN THIS INSISTENCE UPON COMMUNITY
PARTICIPATION IN THE DETERMINATION OF GUILT OR INNOCENCE.  THE DEEP
COMMITMENT OF THE NATION TO THE RIGHT OF JURY TRIAL IN SERIOUS CRIMINAL
CASES AS A DEFENSE AGAINST ARBITRARY LAW ENFORCEMENT QUALIFIES FOR
PROTECTION UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
AND MUST THEREFORE BE RESPECTED BY THE STATES. 

OF COURSE JURY TRIAL HAS "ITS WEAKNESSES AND THE POTENTIAL FOR
MISUSE," SINGER V. UNITED STATES, 380 U.S. 24, 35 (1965).  WE ARE AWARE
OF THE LONG DEBATE, ESPECIALLY IN THIS CENTURY, AMONG THOSE WHO WRITE
ABOUT THE ADMINISTRATION OF JUSTICE, AS TO THE WISDOM OF PERMITTING
UNTRAINED LAYMEN TO DETERMINE THE FACTS IN CIVIL AND CRIMINAL
PROCEEDINGS.  /24/  ALTHOUGH THE DEBATE HAS BEEN INTENSE, WITH POWERFUL
VOICES ON EITHER SIDE, MOST OF THE CONTROVERSY HAS CENTERED ON THE JURY
IN CIVIL CASES.  INDEED, SOME OF THE SEVEREST CRITICS OF CIVIL JURIES
ACKNOWLEDGE THAT THE ARGUMENTS FOR CRIMINAL JURIES ARE MUCH STRONGER. 
/25/  IN ADDITION, AT THE HEART OF THE DISPUTE HAVE BEEN EXPRESS OR
IMPLICIT ASSERTIONS THAT JURIES ARE INCAPABLE OF ADEQUATELY
UNDERSTANDING EVIDENCE OR DETERMINING ISSUES OF FACT, AND THAT THEY ARE
UNPREDICTABLE, QUIXOTIC, AND LITTLE BETTER THAN A ROLL OF DICE.  YET,
THE MOST RECENT AND EXHAUSTIVE STUDY OF THE JURY IN CRIMINAL CASES
CONCLUDED THAT JURIES DO UNDERSTAND THE EVIDENCE AND COME TO SOUND
CONCLUISONS IN MOST OF THE CASES PRESENTED TO THEM AND THAT WHEN JURIES
DIFFER WITH THE RESULT AT WHICH THE JUDGE WOULD HAVE ARRIVED, IT IS
USUALLY BECAUSE THEY ARE SERVING SOME OF THE VERY PURPOSES FOR WHICH
THEY WERE CREATED AND FOR WHICH THEY ARE NOW EMPLOYED.  /26/ 

THE STATE OF LOUISIANA URGES THAT HOLDING THAT THE FOURTEENTH
AMENDMENT ASSURES A RIGHT TO JURY TRIAL WILL CAST DOUBT ON THE
INTEGRITY OF EVERY TRIAL CONDUCTED WITHOUT A JURY.  PLAINLY, THIS IS
NOT THE IMPORT OF OUR HOLDING.  OUR CONCLUSION IS THAT IN THE AMERICAN
STATES, AS IN THE FEDERAL JUDICIAL SYSTEM, A GENERAL GRANT OF JURY
TRIAL FOR SERIOUS OFFENSES IS A FUNDAMENTAL RIGHT, ESSENTIAL FOR
PREVENTING MISCARRIAGES OF JUSTICE AND FOR ASSURING THAT FAIR TRIALS
ARE PROVIDED FOR ALL DEFENDANTS.  WE WOULD NOT ASSERT, HOWEVER, THAT
EVERY CRIMINAL TRIAL-- OR ANY PARTICULAR TRIAL-- HELD BEFORE A JUDGE
ALONE IS UNFAIR OR THAT A DEFENDANT MAY NEVER BE AS FAIRLY TREATED BY A
JUDGE AS HE WOULD BE BY A JURY.  THUS WE HOLD NO CONSTITUTIONAL DOUBTS
ABOUT THE PRACTICES, COMMON IN BOTH FEDERAL AND STATE COURTS, OF
ACCEPTING WAIVERS OF JURY TRIAL /27/  AND PROSECUTING PETTY CRIMES
WITHOUT EXTENDING A RIGHT TO JURY TRIAL.  /28/  HOWEVER, THE FACT IS
THAT IN MOST PLACES MORE TRIALS FOR SERIOUS CRIMES ARE TO JURIES THAN
TO A COURT ALONE; A GREAT MANY DEFENDANTS PREFER THE JUDGMENT OF A JURY
TO THAT OF A COURT.  /29/  EVEN WHERE DEFENDANTS ARE SATISFIED WITH
BENCH TRIALS, THE RIGHT TO A JURY TRIAL VERY LIKELY SERVES ITS INTENDED
PURPOSE OF MAKING JUDICIAL OR PROSECUTORIAL UNFAIRNESS LESS LIKELY. 
/30

        II. 

LOUISIANA'S FINAL CONTENTION IS THAT EVEN IF IT MUST GRANT JURY
TRIALS IN SERIOUS CRIMINAL CASES, THE CONVICTION BEFORE US IS VALID AND
CONSTITUTIONAL BECAUSE HERE THE PETITIONER WAS TRIED FOR SIMPLE BATTERY
AND WAS SENTENCED TO ONLY 60 DAYS IN THE PARISH PRISON.  WE ARE NOT
PERSUADED.  IT IS DOUBTLESS TRUE THAT THERE IS A CATEGORY OF PETTY
CRIMES OR OFFENSES WHICH IS NOT SUBJECT TO THE SIXTH AMENDMENT JURY
TRIAL PROVISION /31/  AND SHOULD NOT BE SUBJECT TO THE FOURTEENTH
AMENDMENT JURY TRIAL REQUIREMENT HERE APPLIED TO THE STATES.  CRIMES
CARRYING A POSSIBLE PENALTIES UP TO SIX MONTHS DO NOT REQUIRE A JURY
TRIAL IF THEY OTHERWISE QUALIFY AS PETTY OFFENSES, CHEFF V.
SCHNACKENBERG, 384 U.S. 373 (1966).  BUT THE PENALTY AUTHORIZED FOR A
PARTICULAR CRIME IS OF MAJOR RELEVANCE IN DETERMINING WHETHER IT IS
SERIOUS OR NOT AND MAY IN ITSELF, IF SEVERE ENOUGH, SUBJECT THE TRIAL
TO THE MANDATES OF THE SIXTH AMDNEMENT.  DISTRICT OF COLUMBIA V.
CLAWANS, 300 U.S. 617 (1937).  THE PENALTY AUTHORIZED BY THE LAW OF THE
LOCALITY MAY BE TAKEN "AS A GAUGE OF ITS SOCIAL AND ETHICAL JUDGMENTS,"
300 U.S.,AT 628, OF THE CRIME IN QUESTION.  IN CLAWANS THE DEFENDANT
WAS JAILED FOR 60 DAYS, BUT IT WAS THE 90-DAY AUTHORIZED PUNISHMENT ON
WHICH THE COURT FOCUSED IN DETERMINING THAT THE OFFENSE WAS NOT ONE FOR
WHICH THE CONSTITUTION ASSURED TRIAL BY JURY.  IN THE CASE BEFORE US
THE LEGISLATURE OF LOUISIANA HAS MADE SIMPLE BATTERY A CRIMINAL OFFENSE
PUNISHABLE BY IMPRISONMENT FOR UP TO TWO YEARS AND A FINE.  THE
QUESTION, THEN, IS WHETHER A CRIME CARRYING SUCH A PENALTY IS AN
OFFENSE WHICH LOUISIANA MAY INSIST ON TRUING WITHOUT A JURY. 

WE THINK NOT.  SO-CALLED PETTY OFFENSES WERE TRIED WITHOUT JURIES
BOTH IN ENGLAND AND IN THE COLONIES AND HAVE ALWAYS BEEN HELD TO BE
EXEMPT FROM THE OTHERWISE COMPREHENSIVE LANGUAGE OF THE SIXTH
AMENDMENT'S JURY TRIAL PROVISIONS.  THERE IS NO SUBSTANTIAL EVIDENCE
THAT THE FRAMERS INTENDED TO DEPART FROM THIS ESTABLISHED COMMON-LAW
PRACTICE, AND THE POSSIBLE CONSEQUENCES TO DEFENDANTS FROM CONVICTIONS
FOR PETTY OFFENSES HAVE BEEN THOUGH INSUFFICIENT TO OUTWEIGH THE
BENEFITS TO EFFICIENT LAW ENFORCEMENT AND SIMPLIFIED JUDICIAL
ADMINISTRATION RESULTING FROM THE AVAILABILITY OF SPEEDY AND
INEXPENSIVE NONJURY ADJUDICATIONS.  THESE SAME CONSIDERATIONS COMPEL
THE SAME RESULT UNDER THE FOURTEENTH AMENDMENT.  OF COURSE THE
BOUNDARIES OF THE PETTY OFFENSE CATEGORY HAVE ALWAYS BEEN ILL-DEFINED,
IF NOT AMBULATORY.  IN THE ABSENCE OF AN EXPLICIT CONSTITUTIONAL
PROVISION, THE DEFINITIONAL TASK NECESSARILY FALLS ON THE COURTS, WHICH
MUST EITHER PASS UPON THE VALIDITY OF LEGISLATIVE ATTEMPTS TO IDENTIFY
THOSE PETTY OFFENSES WHICH ARE EXEMPT FROM JURY TRIAL OR, WHERE THE
LEGISLATURE HAS NOT ADDRESSED ITSELF TO THE PROBLEM, THEMSELVES FACE
THE QUESTION IN THE FIRST INSTANCE.  IN EITHER CASE IT IS NECESSARY TO
DRAW A LINE IN THE SPECTRUM OF CRIME, SEPARATING PETTY FROM SERIOUS
INFRACTIONS.  THIS PROCESS, ALTHOUGH ESSENTIAL, CANNOT BE WHOLLY
SATISFACTORY, FOR IT REQUIRES ATTACHING DIFFERENT CONSEQUENCES TO
EVENTS WHICH, WHEN THEY LIE NEAR THE LINE, ACTUALLY DIFFER VERY
LITTLE. 

IN DETERMINING WHETHER THE LENGTH OF THE AUTHORIZED PRISON TERM OR
THE SERIOUSNESS OF OTHER PUNISHMENT IS ENOUGH IN ITSELF TO REQUIRE A
JURY TRIAL, WE ARE COUNSELED BY DISTRICT OF COLUMBIA V. CLAWANS, SUPRA,
TO REFER TO OBJECTIVE CRITERIA, CHIEFLY THE EXISTING LAWS AND PRACTICES
IN THE NATION.  IN THE FEDERAL SYSTEM, PETTY OFFENSES ARE DEFEINED AS
THOSE PUNISHABLE BY NO MORE THAN SIX MONTHS IN PRISON AND A $500 FINE. 
/22/  IN 49 OF THE 50 STATES CRIMES SUBJECT TO TRIAL WITHOUT A JURY,
WHICH OCCASIONALLY INCLUDE SIMPLE BATTERY, ARE PUNISHABLE BY NO MORE
THAN ONE YEAR IN JAIL.  /33/  MOREOVER, IN THE LATE 18TH CENTURY IN
AMERICA CRIMES TRIABLE WITHOUT A JURY WERE FOR THE MOST PART PUNISHABLE
BY NO MORE THAN A SIX-MONTH PRISON TERM, ALTHOUGH THERE APPEAR TO HAVE
BEEN EXCEPTIONS TO THIS RULE.  /34/  WE NEED NOT, HOWEVER, SETTLE IN
THIS CASE THE EXACT LOCATION OF THE LINE BETWEEN PETTY OFFENSES AND
SERIOUS CRIMES.  IT IS SUFFICIENT FOR OUR PURPOSES TO HOLD THAT A CRIME
PUNISHABLE BY TWO YEARS IN PRISON IS, BASED ON PAST AND CONTEMPORARY
STANDARDS IN THIS COUNTRY, A SERIOUS CRIME AND NOT A PETTY OFFENSE. 
/35/  CONSEQUENTLY, APPELLANT WAS ENTITLED TO A JURY TRIAL AND IT WAS
ERROR TO DENY IT. 

THE JUDGMENT BELOW IS REVERSED AND THE CASE IS REMANDED FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

/1/  LA. CONST., ART. VII, SEC. 41: "ALL CASES IN WHICH THE
PUNISHMENT MAY NOT BE AT HARD LABOR SHALL . . . BE TRIED BY THE JUDGE
WITHOUT A JURY.  CASES, IN WHICH THE PUNISHMENT MAY BE AT HARD LABOR,
SHALL BE TRIED BY A JURY OF FIVE, ALL OF WHOM MUST CONCUR TO RENDER A
VERDICT; CASES, IN WHICH THE PUNISHMENT IS NECESSARILY AT HARD LABOR,
BY A JURY OF TWELVE, NINE OF WHOM MUST CONCUR TO RENDER A VERDICT;
CASES IN WHICH THE PUNISHMENT MAY BE CAPITAL, BY A JURY OF TWELVE, ALL
OF WHOM MUST CONCUR TO RENDER A VERDICT."     LA. REV. STAT. SEC. 14:35
(1950): 

"SIMPLE BATTERY IS A BATTERY, WITHOUT THE CONSENT OF THE VICTIM,
COMMITTED WITHOUT A DANGEROUS WEAPON. 

"WHOEVER COMMITS A SIMPLE BATTERY SHALL BE FINED NOT MORE THAN THREE
HUNDRED DOLLARS, OR IMPRISONED FOR NOT MORE THAN TWO YEARS, OR BOTH." 

/2/  250 LA. 253, 195 SO.2D 142 (1967). 

/3/  389 U.S. 809 (1967).     /4/  CHICAGO, B. & Q.R. CO. V.
CHICAGO, 166 U.S. 226 (1897). 

/5/  SEE, E.G., FISKE V. KANSAS, 274 U.S. 380 (1927). 

/6/  SEE MAPP V. OHIO, 367 U.S. 643 (1961). 

/7/  MALLOY V. HOGAN, 378 U.S. 1 (1964). 

/8/  GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963). 

/9/  KLOPFER V. NORTH CAROLINA, 386 U.S. 213 (1967). 

/10/  IN RE OLIVER, 333 U.S. 257 (1948). 

/11/  POINTER V. TEXAS, 380 U.S. 400 (1965). 

/12/  WASHINGTON V. TEXAS, 388 U.S. 14 (1967). 

/13/  QUOTING FROM HEBERT V. LOUISIANA, 272 U.S. 312, 316 (1926). 

/14/  IN ONE SENSE RECENT CASES APPLYING PROVISIONS OF THE FIRST
EIGHT AMENDMENTS TO THE STATES REPRESENT A NEW APPROACH TO THE
"INCORPORATION" DEBATE.  EARLIER THE COURT CAN BE SEEN AS HAVING ASKED,
WHEN INQUIRING INTO WHETHER SOME PARTICULAR PROCEDURAL SAFEGUARD WAS
REQUIRED OF A STATE, IF A CIVILIZED SYSTEM COULD BE IMAGINED THAT WOULD
NOT ACCORD THE PARTICULAR PROTECTION.  FOR EXAMPLE, PALKO V.
CONNECTICUT, 302 U.S. 319, 325 (1937), STATED:  "THE RIGHT TO TRIAL BY
JURY AND THE IMMUNITY FROM PROSECUTION EXCEPT AS THE RESULT OF AN
INDICTMENT MAY HAVE VALUE AND IMPORTANCE.  EVERN SO, THEY ARE NOT OF
THE VERY ESSENCE OF A SCHEME OF ORDERED LIBERTY . . . FEW WOULD BE SO
NARROW OR PROVINCIAL AS TO MAINTAIN THAT A FAIR AND ENLIGHTENED SYSTEM
OF JUSTICE WOULD BE IMPOSSIBLE WITHOUT THEM."  THE RECENT CASES, ON THE
OTHER HAND, HAVE PROCEEDED UPON THE VALID ASSUMPTION THAT STATE
CRIMINAL PROCESSES ARE NOT IMAGINARY AND THEORETICAL SCHEMES BUT ACTUAL
SYSTEMS BEARING VIRTUALLY EVERY CHARACTERISTIC OF THE COMMON-LAW SYSTEM
THAT HAS BEEN DEVELOPING CONTEMPORANEOUSLY IN ENGLAND AND IN THIS
COUNTRY.  THE QUESTION THUS IS WHETHER GIVEN THIS KIND OF SYSTEM A
PARTICULAR PROCEDURE IS FUNDAMENTAL-- WHETHER, THAT IS, A PROCEDURE IS
NECESSARY TO AN ANGLO-AMERICAN REGIME OF ORDERED LIBERTY.  IT IS THIS
SORT OF INQUIRY THAT CAN JUSTIFY THE CONCLUSIONS THAT STATE COURTS MUST
EXCLUDE EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT, MAPP V.
OHIO, 367 U.S. 643 (1961); THAT STATE PROSECUTORS MAY NOT COMMENT ON A
DEFENDANT'S FAILURE TO TESTIFY, GRIFFIN V. CALIFORNIA, 380 U.S. 609
(1965); AND THAT CRIMINAL PUNISHMENT MAY NOT BE IMPOSED FOR THE STATUS
OF NARCOTICS ADDICTION, ROBINSON V. CALIFORNIA, 370 U.S. 660 (1962). 
OF IMMEDIATE RELEVANCE FOR THIS CASE ARE THE COURT'S HOLDINGS THAT THE
STATES MUST COMPLY WITH CERTAIN PROVISIONS OF THE SIXTH AMENDMENT,
SPECIFICALLY THAT THE STATES MAY NOT REFUSE A SPEEDY TRIAL,
CONFRONTATION OF WITNESSES, AND THE ASSISTANCE, AT STATE EXPENSE IF
NECESSARY, OF COUNSEL.  SEE CASES CITED IN NN. 8-12, SUPRA.  OF EACH OF
THESE DETERMINATIONS THAT A CONSTITUTIONAL PROVISION ORIGINALLY WRITTEN
TO BIND THE FEDERAL GOVERNMENT SHOULD BIND THE STATES AS WELL IT MIGHT
BE SAID THAT THE LIMITATION IN QUESTION IS NOT NECESSARILY FUNDAMENTAL
TO FAIRNESS IN EVERY CRIMINAL SYSTEM THAT MIGHT BE IMAGINED BUT IS
FUNDAMENTAL IN THE CONTEXT OF THE CRIMINAL PROCESSES MAINTAINED BY THE
AMERICAN STATES. 

WHEN THE INQUIRY IS APPRAOCHED IN THIS WAY THE QUESTION WHETHER THE
STATES CAN IMPOSE CRIMINAL PUNISHMENT WITHOUT GRANTING A JURY TRIAL
APPEARS QUITE DIFFERENT FROM THE WAY IT APPEARED IN THE OLDER CASES
OPINING THE STATES MIGHT ABOLISH JURY TRIAL.  SEE, E.G., MAXWELL V.
DOW, 176 U.S. 581 (1900).  A CRIMINAL PROCESS WHICH WAS FAIR AND
EQUITABLE BUT USED NO JURIES IS EASY TO IMAGINE.  IT WOULD MAKE USE OF
ALTERNATIVE GUARANTEES AND PROTECTIONS WHICH WOULD SERVE THE PURPOSES
THAT THE JURY SERVES IN THE ENGLISH AND AMERICAN SYSTEMS.  YET NO
AMERICAN STATE HAS UNDERTAKEN TO CONSTRUCT SUCH A SYSTEM.  INSTEAD,
EVERY AMERICAN STATE, INCLUDING LOUISIANA, USES THE JURY EXTENSIVELY,
AND IMPOSES VERY SERIOUS PUNISHMENTS ONLY AFTER A TRIAL AT WHICH THE
DEFENDANT HAS A RIGHT TO A JURY'S VERDICT.  IN EVERY STATE, INCLUDING
LOUISIANA, THE STRUCTURE AND STYLE OF THE CRIMINAL PROCESS-- THE
SUPPORTING FRAMEWORK AND THE SUBSIDIARY PROCEDURES-- ARE OF THE SORT
THAT NATURALLY COMPLEMENT JURY TRIAL, AND HAVE DEVELOPED IN CONNECTION
WITH AN IN RELIANCE UPON JURY TRIAL. 

/15/  E.G., W. FORSYTH, HISTORY OF TRIAL BY JURY (1852); J. THAYER,
A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW (1898); W.
HOLDSWORTH, HISTORY OF ENGLISH LAW. 

/16/  E.G., 4 W.BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 349
(COOLEY ED. 1899).  HISTORIANS NO LONGER ACCEPT THIS PEDIGREE.  SEE,
E.G., 1 F.POLLOCK & F.MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE
TIME OF EDWARD I, AT 173, N. 3 (2D ED. 1909). 

/17/  BLACKSTONE, SUPRA, AT 349-350. 

/18/  R. PERRY, ED., SOURCES OF OUR LIBERTIES 270 (1959). 

/19/  ID., AT 288. 

/20/  AMONG THE PROPOSED AMENDMENTS ADOPTED BY THE HOUSE OF
REPRESENTATIVES IN 1789 AND SUBMITTED TO THE SENATE WAS ARTICLE
FOURTEEN: "NO STATE SHALL INFRINGE THE RIGHT OF TRIAL BY JURY IN
CRIMINAL CASES, NOR THE RIGHTS OF CONSCIENCE, NOR THE FREEDOM OF
SPEECH, OR OF THE PRESS."  THE SENATE DELETED THIS ARTICLE IN ADOPTING
THE AMENDMENTS WHICH BECAME THE BILL OF RIGHTS.  JOURNAL OF THE FIRST
SESSION OF THE SENATE 72; 1 ANNALS OF CONGRESS 76; BRENNAN, THE BILL OF
RIGHTS AND THE STATES, IN E. CAHN, THE GREAT RIGH-S 65, 69 (1963); E.
DUMBAULD, THE BILL OF RIGHTS 46, 215 (1957).  THIS RELATIVELY CLEAR
INDICATION THAT THE FRAMERS OF THE SIXTH AMENDMENT DID NOT INTEND ITS
JURY TRIAL REQUIREMENT TO BIND THE STATES IS, OF COURSE, OF LITTLE
RELEVANCE TO INTERPRETING THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, ADOPTED SPECIFICALLY TO PLACE LIMITATIONS UPON THE STATES. 
CF. FISKE V. KANSAS, 274 U.S. 380 (1927); GITLOW V. NEW YORK, 268 U.S.
652, 666 (1925). 

/21/  THOMPSON V. UTAH, 170 U.S. 343, 349-350 (1898), QUOTING 2
J.STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES SEC
1779.  SEE ALSO IRVIN V. DOWD, 366 U.S. 717, 721-722 (1961); UNITED
STATES EX REL. TOTH V. QUARLES, 350 U.S. 11, 16 (1955); EX PARTE
MILLIGAN, 4 WALL.  2, 122-123 (1866); PEOPLE V. GARBUTT, 17 MICH. 9, 27
(1868). 

/22/  PROPOSED MARYLAND CONSTITUTION, ART. 1, SEC. 1.07 (DEFEATED AT
REFERENDUM MAY 14, 1968); MICHIGAN CONSTITUTION, ART. 1, SEC. 14;
PROPOSED NEW YORK CONSTITUTION, ART. 1, SEC. 7B (DEFEATED AT REFERENDUM
NOV. 7, 1967), 

/23/  "THE (JURY TRIAL) CLAUSE WAS CLEARLY INTENDED TO PROTECT THE
ACCUSED FROM OPPRESSION BY THE GOVERNMENT . . . "  SINGER V. UNITED
STATES, 380P U.S. 24, 31 (1965).  "THE FIRST OBJECT OF ANY TYRANT IN
WHITEHALL WOULD BE TO MAKE PARLIAMENT UTTERLY SUBSERVIENT TO HIS WELL;
AND THE NEXT TO OVERTHROW OR DIMISH TRIAL BY JURY, FOR NO TYRANT COULD
AFFORD TO LEAVE A SUBJECT'S FREEDOM IN THE HANDS OF TWELVE OF HIS
COUNTRYMEN.  SO THAT TRIAL BY JURY IS MORE THAN AN INSTRUMENT OF
JUSTICE AND MORE THAN ONE WHEEL OF THE CONSTITUTION:  IT IS THE LAMP
THAT SHOWS THAT FREEDOM LIVES."  P. DEVLIN, TRIAL BY JURY 164 (1956). 

/24/  A THOROUGH SUMMARY OF THE ARGUMENTS THAT HAVE BEEN MADE FOR
AND AGAINST JURY TRIAL AND AN EXTENSIVE BIBLIOGRAPHY OF THE RELEVANT
LITERATURE IS AVAILABLE AT HEARINGS ON RECORDING OF JURY DELIBERATIONS
BEFORE THE SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF THE IN
ERNAL SECURITY ACT OF THE SENATE COMMITTEE ON THE JUDICIARY, 84TH
CONG., 1ST SESS., 63-81 (1955).  A MORE SELECTIVE BIBLIOGRAPHY APPEARS
AT H. KALVEN, JR. & H. ZEISEL, THE AMERICAN JURY 4, N. 2 (1966). 

/25/  E.G., J. FRANK, COURTS ON TRIAL 145 (1949); H. WIDGWICK, THE
ELEMENTS OF POLITICS 498 (4TH ED. 1919). 

/26/  KALVEN & ZEISEL, N. 24, SUPRA. 

/27/  SEE PATTON V. UNITED STATES, 281 U.S. 276 (1930). 

/28/  SEE PART II, INFRA. 

/29/  KALVEN & ZEISEL, N. 24, SUPRA, C. 2. 

/30/  LOUISIANA ALSO ASSERTS THAT IF DUE PROCESS IS DEEMED TO
INCLUDE THE RIGHT TO JURY TRIAL, STATES WILL BE OBLIGATED TO COMPLY
WITH ALL PAST INTERPRETATIONS OF THE SIXTH AMENDMENT, AN AMENDMENT
WHICH IN ITS INCEPTION WAS DESIGNED TO CONTROL ONLY THE FEDERAL COURTS
AND WHICH THROUGHOUT ITS HISTORY HAS OPERATED IN THIS LIMITED
ENVIRONMENT WHERE UNIFORMITY IS A MORE OBVIOUS AND IMMEDIATE
CONSIDERATION.  IN PARTICULAR, LOUISIANA OBJECTS TO APPLICATION OF THE
DECISIONS OF THIS COURT INTERPRETING THE SIXTH AMENDMENT AS
GUARANTEEING A 12-MAN JURY IN SERIOUS CRIMINAL CASES, THOMPSON V. UTAH,
170 U.S. 343 (1898); AS REQUIRING A UNANIMOUS VERDICT BEFORE GUILT CAN
BE FOUND, MAXWELL V. DOW, 176 U.S. 581, 586 (1900); AND AS BARRING
PROCEDURES BY WHICH CRIMES SUBJECT TO THE SIXTH AMENDMENT JURY TRIAL
PROVISION ARE TRIED IN THE FIRST INSTANCE WITHOUT A JURY, CALLAN V.
WILSON, 127 U.S. 540, 557 (1888).  IT SEEMS VERY UNLIKELY TO US THAT
OUR DECISION TODAY WILL REQUIRE WIDESPREAD CHANGES IN STATE CRIMINAL
PROCESES.  FIRST, OUR DECISIONS INTERPRETING THE SIXTH AMENDMENT ARE
ALWAYS SUBJECT TO RECONSIDERATION, A FACT AMPLY DEMONSTRATED BY THE
INSTANT DECISION.  IN ADDITION, MOST OF THE STATES HAVE PROVISIONS FOR
JURY TRIALS EQUAL IN BREADTH TO THE SIXTH AMENDMENT, IF THAT AMENDMENT
IS CONSTRUED, AS IT HAS BEEN, TO PERMIT THE TRIAL OF PETTY CRIMES AND
OFFENSES WITHOUT A JURY.  INDEED, THERE APPEAR TO BE ONLY FOUR STATES
IN WHICH JURIES OF FEWER THAN 12 CAN BE USED WITHOUT THE DEFENDANT'S
CONSENT FOR OFFENSES CARRYING A MAXIMUM PENALTY OF GREATER THAN ONE
YEAR.  ONLY IN OREGON AND LOUISIANA CAN A LESS-THAN-UNANIMOUS JURY
CONVICT FOR AN OFFENSE WITH A MAXIMUM PENALTY GREATER THAN ONE YEAR. 
HOWEVER 10 STATES AUTHORIZE FIRST-STAGE TRIALS WITHOUT JURIES FOR
CRIMES CARRYING LENGTHY PENALTIES; THESE STATES GIVE A CONFICTED
DEFENDANT THE RIGHT TO A DE NOVO TRIAL BEFORE A JURY IN A DIFFERENT
COURT.  THE STATUTORY PROVISIONS ARE LISTED IN THE BRIEFS FILED IN THIS
CASE. 

/31/  CHEFF V. SCHNACKENBERG, 384 U.S. 373 (1966); DISTRICT OF
COLUMBIA V. CLAWANS, 300 U.S. 617 (1937); SCHICK V. UNITED STATES, 195
U.S. 65 (1904); NATAL V. LOUISIANA, 139 U.S. 621 (1891); SEE CALLAN V.
WILSON, 127 U.S. 540 (1888).  SEE GENERALLY FRANKFURTER & CORCORAN,
PETTY FEDERAL OFFENSES AND THE CONSTITUTIONAL GUARANTY OF TRIAL BY
JURY, 39 HARV.L.REV.  917 (1926); KAYE, PETTY OFFENDERS HAVE NO PEERS.,
26 U.C-I.L.REV.  245 (1959). 

/32/  18 U.S.C. 1. 

/33/  INDEED, THERE APPEAR TO BE ONLY TWO INSTANCES, ASIDE FROM THE
LOUISIANA SCHEME, IN WHICH A STATE DENIES JURY TRIAL FOR A CRIME
PUNISHABLE BY IMPRISONMENT FOR LONGER THAN SIX MONTHS.  NEW JERSEY'S
DISORDERLY CONDUCT OFFENSE, N.J. STAT. ANN. SEC. 2A:169-4 (1953),
CARRIES A ONE-YEAR MAXIMUM SENTENCE BUT NO JURY TRIAL.  THE DENIAL OF
JURY TRIAL WAS UPHELD BY A 4-3 VOTE AGAINST STATE CONSTITUTIONAL ATTACK
IN STATE V. MAIER, 13 N.J. 235, 99 A.2D 21 (1953).  NEW YORK STATE
PROVIDES A JURY WITHIN NEW YORK CITY ONLY FOR OFFENSES BEARING A
MAXIMUM SENTENCE GREATER THAN ONE YEAR.  SEE PEOPLE V. SANABRIA, 42
MISC.2D 464, 249 N.Y.S.2D 66 (SUP. CT. 1964). 

/34/  FRANKFURTHER & CORCORAN, N. 31, SUPRA.  IN THE INSTANT CASE
LOUISIANA HAS NOT ARGUED THAT A PENALTY OF TWO YEARS' IMPRISONMENT IS
SUFFICIENTLY SHORT TO QUALIFY AS A "PETTY OFFENSE," BUT ONLY THAT THE
PENALTY ACTUALLY IMPOSED ON DUNCAN, IMPRISONMENT FOR 60 DAYS, IS WITHIN
THE PETTY OFFENSE CATEGORY. 

/35/  IT IS ARGUED THAT CHEFF V. SCHNACKENBERG, 384 U.S. 373 (1966),
INTERPRETED THE SIXTH AMENDMENT AS MEANING THAT TO THE EXTENT THAT THE
LENGTH OF PUNISHMENT IS A RELEVANT CRITERION IN DISTINGUISHING BETWEEN
SERIOUS CRIMES AND PETTY OFFENSES, THE CRITICAL FACTOR IS NOT THE
LENGTH OF THE SENTENCE AUTHORIZED BUT THE LENGTH OF THE PENALTY
ACTUALLY IMPOSED.  IN OUR VIEW THAT CASE DOES NOT REACH THE SITUATION
WHERE A LEGISLATIVE JUDGMENT AS TO THE SERIOUSNESS OF THE CRIME IS
IMBEDDED IN THE STATUTE IN THE FORM OF AN EXPRESS AUTHORIZATION TO
IMPOSE A HEAVY PENALTY FOR THE CRIME IN QUESTION.  CHEFF INVOLVED
CRIMINAL CONTEMPT, AN OFFENSE APPLIED TO A WIDE RANGE OF CONDUCT
INCLUDING CONDUCT NOT SO SERIOUS AS TO REQUIRE JURY TRIAL ABSENT A LONG
SENTENCE.  IN ADDITION CRIMINAL CONTEMPT IS UNIQUE IN THAT LEGISLATIVE
BODIES FREQUENTLY AUTHORIZE PUNISHMENT WITHOUT STATING THE EXTENT OF
THE PENALTY WHICH CAN BE IMPOSED.  THE CONTEMPT STATUTE UNDER WHICH
CHEFF WAS PROSECUTED, 18 U.S.C. 401, TREATED THE EXTENT OF PUNISHMENT
AS A MATTER TO BE DETERMINED BY THE FORUM COURT.  IT IS THEREFORE
UNDERSTANDABLE THAT THIS COURT IN CHEFF SEIZED UPON THE PENALTY
ACTUALLY IMPOSED AS THE BEST EVIDENCE OF THE SERIOUSNESS OF THE OFFENSE
FOR WHICH CHEFF WAS TRIED. 

(FOR CONCURRING OPINION OF MR. JUSTICE FORTAS, SEE POST, P. 211.) 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

THE COURT TODAY HOLDS THAT THE RIGHT TO TRIAL BY JURY GUARANTEED
DEFENDANTS IN CRIMINAL CASES IN FEDERAL COURTS BY ART. III OF THE
UNITED STATES CONSTITUTION AND BY THE SIXTH AMENDMENT IS ALSO
GUARANTEED BY THE FOURTEENTH AMENDMENT TO DEFENDANTS TRIED IN STATE
COURTS.  WITH THIS HOLDING I AGREE FOR REASONS GIVEN BY THE COURT.  I
ALSO AGREE BECAUSE OF REASONS GIVEN IN MY DISSENT IN ADAMSON V.
CALIFORNIA, 332 U.S. 46, 68.  IN THAT DISSENT, AT 90, I TOOK THE
POSITION, CONTRARY TO THE HOLDING IN TWINING V. NEW JERSEY, 211 U.S.
78, THAT THE FOURTEENTH AMENDMENT MADE ALL OF THE PROVISIONS OF THE
BILL OF RIGHTS APPLICABLE TO THE STATES.  THIS COURT IN PALKO V.
CONNECTICUT, 302 U.S. 319, 323, DECIDED IN 1937, ALTHOUGH SAYING
"(THERE IS NO SUCH GENERAL RULE," WENT ON TO ADD THAT THE FOURTEENTH
AMENDMENT MAY MAKE IT UNLAWFUL FOR A STATE TO ABRIDGE BY ITS STATUTES
THE     "FREEDOM OF SPEECH WHICH THE FIRST AMENDMENT SAFEGUARDS AGAINST
ENCROACHMENT BY THE CONGRESS . . . OR THE LIKE FREEDOM OF THE PRESS . .
. OR THE FREE EXERCISE OF RELIGION . . . OR THE RIGHT OF PEACEABLE
ASSEMBLY . . . OR THE RIGHT OF ONE ACCUSED OF CRIME TO THE BENEFIT OF
COUNSEL . . . IN THESE AND OTHER SITUATIONS IMMUNITIES THAT ARE VALID
AS AGAINST THE FEDERAL GOVERNMENT BY FORCE OF THE SPECIFIC PLEDGES OF
PARTICULAR AMENDMENTS HAVE BEEN FOUND TO BE IMPLICIT IN THE CONCEPT OF
ORDERED LIBERTY, AND THUS, THROUGH THE FOURTEENTH AMENDMENT, BECOME
VALID AS AGAINST THE STATES."  ID., AT 324-325.  AND THE PALKO OPINION
WENT ON TO EXPLAIN, 302 U.S.,AT 326, THAT CERTAIN BILL OF RIGHTS'
PROVISIONS WERE MADE APPLICABLE TO THE STATES BY BRINGING THEM "WITHIN
THE FOURTEENTH AMENDMENT BY A PROCESS OF ABSORPTION."  THUS TWINING V.
NEW JERSEY, SUPRA, REFUSED TO HOLD THAT ANY ONE OF THE BILL OF RIGHTS'
PROVISIONS WAS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT, BUT PALKO, WHICH MUST BE READ AS OVERRULING TWINING ON THIS
POINT, CONCLUDED THAT THE BILL OF RIGHTS AMENDMENTS THAT ARE "IMPLICIT
IN THE CONCEPT OF ORDERED LIBERTY" ARE "ABSORBED" BY THE FOURTEENTH AS
PROTECTIONS AGAINST STATE INVASION.  IN THIS SITUATION, I SAID IN
ADAMSON V. CALIFORNIA, 332 U.S.,AT 89, THAT, WHILE "I WOULD . . .
EXTEND TO ALL THE PEOPLE OF THE NATION THE COMPLETE PROTECTION OF THE
BILL OF RIGHTS," THAT "(IF THE CHOICE MUST BE BETWEEN THE SELECTIVE
PROCESS OF THE PALKO DECISION APPLYING SOME OF THE BILL OF RIGHTS TO
THE STATES, OR THE TWINING RULE APPLYING NONE OF THEM, I WOULD CHOOSE
THE PALKO SELECTIVE PROCESS."  SEE GIDWON V. WAINWRIGHT, 372 U.S. 335. 
AND I AM VERY HAPPY TO SUPPORT THIS SELECTIVE PROCESS THROUGH WHICH OUR
COURT HAS SINCE THE ADAMSON CASE HELD MOST OF THE SPECIFIC BILL OF
RIGHTS' PROTECTIONS APPLICABLE TO THE STATES TO THE SAME EXTENT THEY
ARE APPLICABLE TO THE FEDERAL GOVERNMENT.  AMONG THESE ARE THE RIGHT TO
TRIAL BY JURY DECIDED TODAY, THE RIGHT AGAINST COMPELLED SELF
INCRIMINATION, THE RIGHT TO COUNSEL, THE RIGHT TO COMPULSORY PROCESS
FOR WITNESSES, THE RIGHT TO CONFRONT WITNESSES, THE RIGHT TO A SPEEDY
AND PUBLIC TRIAL, AND THE RIGHT TO BE FREE FROM UNREASONABLE SEARCHES
AND SEIZURES. 

ALL OF THESE HOLDINGS MAKING BILL OF RIGHTS' PROVISIONS APPLICABLE
AS SUCH TO THE STATES MARK, OF COURSE, A DEPARTURE FROM THE TWINING
DOCTRINE HOLDING THAT NONE OF THOSE PROVISIONS WERE ENFORCEABLE AS SUCH
AGAINST THE TATES.  THE DISSENT IN THIS CASE, HOWEVER, MAKES A SPIRITED
AND FORCEFUL DEFENSE OF THAT NOW DISCREDITED DOCTRINE.  I DO NOT
BELIEVE THAT IT IS NECESSARY FOR ME TO REPEAT THE HISTORICAL AND
LOGICAL REASONS FOR MY CHALLENGE TO THE TWINING HOLDING CONTAINED IN MY
ADAMSON DISSENT AND APPENDIX TO IT.  WHAT I WROTE THERE IN 1947 WAS THE
PRODUCT OF YEARS OF STUDY AND RESEARCH.  MY APPRAISAL OF THE
LEGISLATIVE HISTORY FOLLOWED 10 YEARS OF LEGISLATIVE EXPERIENCE AS A
SENATOR OF THE UNITED STATES, NOT A BAD WAY, I SUSPECT, TO LEARN THE
VALUE OF WHAT IS SAID IN LEGISLATIVE DEBATES, COMMITTEE DISCUSSIONS,
COMMITTEE REPORTS, AND VARIOUS OTHER STEPS TAKEN IN THE COURSE OF
PASSAGE OF BILLS, RESOLUTIONS, AND PROPOSED CONSTITUTIONAL AMENDMENTS. 
MY BROTHER HARLAN'S OBJECTIONS TO MY ADAMSON DISSENT HISTORY, LIKE THAT
OF MOST OF THE OBJECTORS, RELIES MOST HEAVILY ON A CRITICISM WRITTEN BY
PROFESSOR CHARLES FIARMAN AND PUBLISHED IN THE STANFORD LAW REVIEW.  2
STAN.L.REV.  5 (1949).  I HAVE READ AND STUDIED THIS ARTICLE
EXTENSIVELY, INCLUDING THE HISTORICAL REFERENCES, BUT AM COMPELLED TO
ADD THAT IN MY VIEW IT HAS COMPLETELY FAILED TO REFUTE THE INFERENCES
AND ARGUMENTS THAT I SUGGESTED IN MY ADAMSON DISSENT.  PROFESSOR
FAIRMAN'S "HISTORY" RELIES VERY HEAVILY ON WHAT WAS NOT SAID IN THE
STATE LEGISLATURES THAT PASSED ON THE FOURTEENTH AMENDMENT.  INSTEAD OF
RELYING ON THIS KIND OF NEGATIVE PREGNANT, MY LEGISLATIVE EXPERIENCE
HAS CONVINCED ME THAT IT IS FAR WISER TO RELY ON WHAT WAS SAID, AND
MOST IMPORTANTLY, SAID BY THE MEN WHO ACTUALLY SPONSORED THE AMENDMENT
IN THE CONGRESS.  I KNOW FROM MY YEARS IN THE UNITED STATES SENATE THAT
IT IS TO MEN LIKE CONGRESSMAN BINGHAM, WHO STEERED THE AMENDMENT
THROUGH THE HOUSE, AND SENATOR HOWARD, WHO INTRODUCED IT IN THE SENATE,
THAT MEMBERS OF CONGRESS LOOK WHEN THEY SEEK THE REAL MEANING OF WHAT
IS BEING OFFERED.  AND THEY VOTE FOR OR AGAINST A BILL BASED ON WHAT
THE SPONSORS OF THAT BILL AND THOSE WHO OPPOSE IT TELL THEM IT MEANS. 
THIS HISTORICAL APPENDIX TO MY ADAMSON DISSENT LEAVES NO DOUBT IN MY
MIND THAT BOTH ITS SPONSORS AND THOSE WHO OPPOSED IT BELIEVED THE
FOURTEENTH AMENDMENT MADE THE FIRST EIGHT AMENDMENTS OF THE
CONSTITUTION (THE BILL OF RIGHTS) APPLICABLE TO THE STATES. 

IN ADDITION TO THE ADOPTION OF PROFESSOR 'FAIRMAN'S "HISTORY," THE
DISSENT STATES THAT "THE GREAT WORDS OF THE FOUR CLAUSES OF THE FIRST
PECULIAR WAY TO SAY THAT 'THE RIGHTS HERETOFORE GUARANTEED AGAINST
FEDERAL INTRUSION BY THE FIRST EIGHT AMENDMENTS ARE HENCEFORTH
GUARANTEED AGAINST STATE INTRUSION AS WELL.'"  DISSENTING OPINION, N.
9.  IN RESPONSE TO THIS I CAN SAY ONLY THAT THE WORDS "NO STATE SHALL
MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR
IMMUNITIES OF CITIZENS OF THE UNITED STATES" SEEM TO ME AN EMINENTLY
REASONABLE WAY OF EXPRESSING THE IDEA THAT HENCEFORTH THE BILL OF
RIGHTS SHALL APPLY TO THE STATES.  /1/  WHAT MORE PRECIOUS "PRIVILEGE"
OF AMERICAN CITIZENSHIP COULD THERE BE THAN THAT PRIVILEGE TO CLAIM THE
PROTECTIONS OF OUR GREAT BILL OF RIGHTS?  I SUGGEST THAT ANY READING OF
"PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES" WHICH
EXCLUDES THE BILL OF RIGHTS' SAFEGUARDS RENDERS THE WORDS OF THIS
INTRODUCED THE FOURTEENTH AMENDMENT FOR PASSAGE IN THE SENATE,
CERTAINLY READ THE WORDS THIS WAY.  ALTHOUGH I HAVE CITED HIS SPEECH AT
LENGTH IN MY ADAMSON DISSENT APPENDIX, I BELIEVE IT WOULD BE WORTHWHILE
TO REPRODUCE A PART OF IT HERE. 

     "SUCH IS THE CHARACTER OF THE PRIVILEGES AND IMMUNITIES SPOKEN

  OF IN THE SECOND SECTION OF THE FOURTH ARTICLE OF THE

  CONSTITUTION (THE SENATOR HAD JUST READ FROM THE OLD OPINION OF

CORFIELD V. DORYELL, 6 FED.CAS.  546 (NO. 3,230) (E.D. PA.

  1825)).  TO THESE PRIVILEGES AND IMMUNITIES, WHATEVER THEY MAY

  BE-- FOR THEY ARE NOT AND CANNOT BE FULLY DEFINED IN THEIR ENTIRE

  EXTENT AND PRECISE NATURE-- TO THESE SHOULD BE ADDED THE PERSONAL

  RIGHTS GUARANTIED AND SECURED BY THE FIRST EIGHT AMENDMENTS OF

  THE CONSTITUTION; SUCH AS THE FREEDOM OF SPEECH AND OF THE PRESS;

  THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE AND PETITION THE

  GOVERNMENT FOR A REDRESS OF GRIEVANCES, A RIGHT APPERTAINING TO

EACH AND ALL THE PEOPLE; THE RIGHT TO KEEP AND TO BEAR ARMS; THE

  RIGHT TO BE EXEMPTED FROM THE QUARTERING OF SOLDIERS IN A HOUSE

  WITHOUT THE CONSENT OF THE OWNER; THE RIGHT TO BE EXEMPT FROM

  UNREASONABLE SEARCHES AND SEIZURES, AND FROM ANY SEARCH OR

  SEIZURE EXDEPT BY VIRTUE OF A WARRANT ISSUED UPON A FORMAL OATH

  OR AFFIDAVIT; THE RIGHT OF AN ACCUSED PERSON TO BE INFORMED OF

  THE NATURE OF THE ACCUSATION AGAINST HIM, AND HIS RIGHT TO BE

  TRIED BY AN IMPARTIAL JURY OF THE VICINAGE; AND ALSO THE RIGHT TO

  BE SECURE AGAINST EXCESSIVE BAIL AND AGAINST CRUEL AND UNUSUAL

PUNISHMENTS. 

     "NOW, SIR, HERE IS A MASS OF PRIVILEGES, IMMUNITIES, AND

  RIGHTS, SOME OF THEM SECURED BY THE SECOND SECTION OF THE FOURTH

  ARTICLE OF THE CONSTITUTION, WHICH I HAVE RECITED, SOME BY THE

  FIRST EIGHT AMENDMENTS OF THE CONSTITUTION; AND IT IS A FACT WELL

  WORTHY OF ATTENTION THAT THE COURSE OF DECISION OF OUR COURTS AND

THE PRESENT SETTLED DOCTRINE IS, THAT ALL THESE IMMUNITIES,

 PRIVILEGES, RIGHTS, THUS GUARANTIED BY THE CONSTITUTION OR

  RECOGNIZED BY IT, ARE SECURED TO THE CITIZENS SOLELY AS A CITIZEN

  OF THE UNITED STATES AND AS A PARTY IN THEIR COURTS.  THEY DO NOT

  OPERATE IN THE SLIGHTEST DEGREE AS A RESTRAINT OR PROHIBITION

  UPON STATE LEGISLATION . . . 

     " . . . THE GREAT OBJECT OF THE FIRST SECTION OF THIS
AMENDMENT

  IS, THEREFORE, TO RESTRAIN THE POWER OF THE STATES AND COMPEL

  THEM AT ALL TIMES TO RESPECT THESE GREAT FUNDAMENTAL

  GUARANTEES."  CONG. GLOBE, 39TH CONG., 1ST SESS., 2765-2766

  (1866). 

FROM THIS I CONCLUDE, CONTRARY TO MY BROTHER HARLAN, THAT IF ANYTHING,
IT IS "EXCEEDINGLY PECULIAR" TO READ THE FOURTEENTH AMENDMENT
DIFFERENTLY FROM THE WAY I DO. 

WHILE I DO NOT WISH AT THIS TIME TO DISCUSS AT LENGTH MY
DISAGREEMENT WITH BROTHER HARLAN'S FORTHRIGHT AND FRANK RESTATEMENT OF
THE NOW DISCREDITED TWINING DOCTRINE, /2/  I DO WANT TO POINT OUT WHAT
APPEARS TO ME TO BE THE BASIC DIFFERENCE BETWEEN US.  HIS VIEW, AS WAS
INDEED THE VIEW OF TWINING, IS THAT "DUE PROCESS IS AN EVOLVING
CONCEPT" AND THEREFORE THAT IT ENTAILS A "GRADUAL PROCESS OF JUDICIAL
INCLUSION AND EXCLUSION" TO ASCERTAIN THOSE "IMMUTABLE PRINCIPLES . . .
OF FREE GOVERNMENT WHICH NO MEMBER OF THE UNION MAY DISREGARD."  THUS
THE DUE PROCESS CLAUSE IS TREATED AS PRESCRIBING NO SPECIFIC AND
CLEARLY ASCERTAINABLE CONSTITUTIONAL COMMAND THAT JUDGES MUST OBEY IN
INTERPRETING THE CONSTITUTION, BUT RATHER AS LEAVING JUDGES FREE TO
DECIDE AT ANY PARTICULAR TIME WHETHER A PARTICULAR RULE OR JUDICIAL
FORMULATION EMBODIES AN "IMMUTABLE PRINCIPLE) OF FREE GOVERNMENT" OR IS
"IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY," OR WHETHER CERTAIN
CONDUCT "SHOCKS THE JUDGE'S CONSCIENCE" OR RUNS COUNTER TO SOME OTHER
SIMILAR, UNDEFINED AND UNDEFINABLE STANDARD.  THUS DUE PROCESS,
ACCORDING TO MY BROTHER HARLAN, IS TO BE A PHRASE WITH NO PERMANENT
MEANING, BUT ONE WHICH IS FOUND TO SHIFT FROMTIME TO TIME IN ACCORDANCE
WITH JUDGES' PREDILECTIONS AND UNDERSTANDINGS OF WHAT IS BEST FOR THE
COUNTRY.  IF DUE PROCESS MEANS THIS, THE FOURTEENTH AMENDMENT, IN MY
OPINION, MIGHT AS WELL HAVE BEEN WRITTEN THAT "NO PERSON SHALL BE
DEPRIVED OF LIFE, LIBERTY OR PROPERTY EXCEPT BY LAWS THAT THE JUDGES OF
THE UNITED STATES SUPREME COURT SHALL FIND TO BE CONSISTENT WITH THE
IMMUTABLE PRINCIPLES OF FREE GOVERNMENT."  IT IS IMPOSSIBLE FOR ME TO
BELIEVE THAT SUCH UNCONFINED POWER IS GIVEN TO JUDGES IN OUR
CONSTITUTION THAT IS A WRITTEN ONE IN ORDER TO LIMIT GOVERNMENTAL
POWER. 

ANOTHER TENET OF THE TWINING DOCTRINE AS RESTATED BY MY BROTHER
HARLAN IS THAT "DUE PROCESS OF LAW REQUIRES ONLY FUNDAMENTAL
FIARNESS."  BUT THE "FUNDAMENTAL FAIRNESS" TEST IS ONE ON A PAR WITH
THAT OF SHOCKING THE CONSCIENCE OF THE COURT.  EACH OF SUCH TESTS
DEPENDS ENTIRELY ON THE PARTICULAR JUDGE'S IDEA OF ETHICS AND MORALS
INSTEAD OF REQUIRING HIM TO DEPEND ON THE BOUNDARIES FIXED BY THE
WRITTEN WORDS OF THE CONSTITUTION.  NOTHING IN THE HISTORY OF THE
PHRASE "DUE PROCESS OF LAW" SUGGESTS THAT CONSTITUTIONAL CONTROLS ARE
TO DEPEND ON ANY PARTICULAR JUDGE'S SENSE OF VALUES.  THE ORIGIN OF THE
DUE PROCESS CLAUSE IS CHAPTER 39 OF MAGNA CARTA WHICH DECLARES THAT "NO
FREE MAN SHALL BE TAKEN, OUTLAWED, BANISHED, OR IN ANY WAY DESTROYED,
NOR WILL WE PROCEED AGAINST OR PROSECUTE HIM, EXCEPT BY THE LAWFUL
JUDGMENT OF HIS PEERS AND BY THE LAW OF THE LAND."  /3/  AS EARLY AS
1354 THE WORDS "DUE PROCESS OF LAW"  WERE USED IN AN ENGLISH STATUTE
INTERPRETING MAGNA CARTA, /4/  AND BY THE END OF THE 14TH CENTURY "DUE
PROCESS OF LAW" AND "LAW OF THE LAND"  WERE INTERCHANGEABLE.  THUS THE
ORIGIN OF THIS CLAUSE WAS AN ATTEMPT BY THOSE WHO WROTE MAGNA CARTA TO
DO AWAY WITH THE SO-CALLED TRIALS OF THAT PERIOD WHERE PEOPLE WERE
LIABLE TO SUDDEN ARREST AND SUMMARY CONVICTION IN COURTS AND BY
JUDICIAL COMMISSIONS WITH NO SURE AND DEFINITE PROCEDURAL PROTECTIONS
AND UNDER LAWS THAT MIGHT HAVE BEEN IMPROVISED TO TRY THEIR PARTICULAR
CASES.  CHAPTER 39 OF MAGNA CARTA WAS A GUARANTEE THAT THE GOVERNMENT
WOULD TAKE NEITHER LIFE, LIBERTY, NOR PROPERTY WITHOUT A TRIAL IN
ACCORD WITH THE LAW OF THE LAND THAT ALREADY EXISTED AT THE TIME THE
ALLEGED OFFENSE WAS COMMITTED.  THIS MEANS THAT THE DUE PROCESS CLAUSE
GIVES ALL AMERICANS, WHOEVER THEY ARE AND WHEREVER THEY HAPPEN TO BE,
THE RIGHT TO BE TRIED BY INDEPENDENT AND UNPREJUDICED COURTS USING
ESTABLISHED PROCEDURES AND APPLYING VALID PRE-EXISTING LAWS.  THERE IS
NOT ONE WORD OF LEGAL HISTORY THAT JUSTIFIES MAKING THE TERM "DUE
PROCESS OF LAW" MEAN A GUARANTEE OF A TRIAL FREE FROM LAWS AND CONDUCT
WHICH THE COURTS DEEM AT THE TIME TO BE "ARBITRARY," "UNREASONABLE,"
"UNFAIR," OR "CONTRARY TO CIVILIZED STANDARDS."  THE DUE PROCESS OF LAW
STANDARD FOR A TRIAL IS ONE IN ACCORDANCE WITH THE BILL OF RIGHTS AND
LAWS PASSED PURSUANT TO CONSTITUTIONAL POWER, GUARANTEEING TO ALL ALIKE
A TRIAL UNDER THE GENERAL LAW OF THE LAND. 

FINALLY I WANT TO ADD THAT I AM NOT BOTHERED BY THE ARGUMENT THAT
APPLYING THE BILL OF RIGHTS TO THE STATES, "ACCORDING TO THE SAME
STANDARDS THAT PROTECT THOSE PERSONAL RIGHTS AGAINST FEDERAL
ENCROACHMENT,"  /5/  INTERFERES WITH OUR CONCEPT OF FEDERALISM IN THAT
IT MAY PREVENT STATES FROM TRYING NOVEL SOCIAL AND ECONOMIC
EXPERIMENTS.  I HAVE NEVER BELIEVED THAT UNDER THE GUISE OF FEDERALISM
THE STATES SHOULD BE ABLE TO EXPERIMENT WITH THE PROTECTIONS AFFORDED
OUR CITIZENS THROUGH THE BILL OF RIGHTS.  AS JUSTICE GOLDBERG SAID SO
WISELY IN HIS CONCURRING OPINION IN POINTER V. TEXAS, 380 U.S. 400: 

"TO DENY TO THE STATES THE POWER TO IMPAIR A FUNDAMENTAL
CONSTITUTIONAL RIGHT IS NOT TO INCREASE FEDERAL POWER, BUT, RATHER, TO
LIMIT THE POWER OF BOTH FEDERAL AND STATE GOVERNMENTS IN FAVOR OF
SAFEGUARDING THE FUNDAMENTAL RIGHTS AND LIBERTIES OF THE INDIVIDUAL. 
IN MY VIEW THIS PROMOTES RATHER THAN UNDERMINES THE BASIC POLICY OF
AVOIDING EXCESS CONCENTRATION OF POWER IN GOVERNMENT, FEDERAL OR STATE,
WHICH UNDERLIES OUR CONCEPTS OF FEDERALISM."  380 U.S.,AT 414.  IT
SEEMS TO ME TOTALLY INCONSISTENT TO ADVOCATE, ON THE ONE HAND, THE
POWER OF THIS COURT TO STRIKE DOWN ANY STATE LAW OR PRACTICE WHICH IT
FINDS "UNREASONABLE" OR "UNFAIR" AND, ON THE OTHER HAND, URGE THAT THE
STATES BE GIVEN MAXIMUM POWER TO DEVELOP THEIR OWN LAWS AND
PROCEDURES.  YET THE DUE PROCESS APPROACH OF MY BROTHERS HARLAN AND
FORTAS (SEE OTHER CONCURRING OPINION, POST, P. 211) DOES JUST THAT
SINCE IN EFFECT IT RESTRICTS THE STATES TO PRACTICES WHICH A MAJORITY
OF THIS COURT IS WILLING TO APPROVE ON A CASE-BY-CASE BASIS.  NO ONE IS
MORE CONCERNED THAN I THAT THE STATES BE ALLOWED TO USE THE FULL SCOPE
OF THEIR POWERS AS THEIR CITIZENS SEE FIT.  AND THAT IS WHY I HAVE
CONTINUALLY FOUGHT AGAINST THE EXPANSION OF THIS COURT'S AUTHORITY OVER
THE STATES THROUGH THE USE OF A BROAD, GENERAL INTERPRETATION OF DUE
PROCESS THAT PERMITS JUDGES TO STRIKE DOWN STATE LAWS THEY DO NOT
LIKE. 

IN CLOSING I WANT TO EMPHASIZE THAT I BELIEVE AS STRONGLY AS EVER
THAT THE FOURTEENTH AMENDMENT WAS INTENDED TO MAKE THE BILL OF RIGHTS
APPLICABLE TO THE STATES.  I HAVE BEEN WILLING TO SUPPORT THE SELECTIVE
INCORPORATION DOCTRINE, HOWEVER, AS AN ALTERNATIVE, ALTHOUGH PERHAPS
LESS HISTORICALLY SUPPORTABLE THAN COMPLETE INCORPORATION.  THE
SELECTIVE INCORPORATION PROCESS, IF USED PROPERLY, DOES LIMIT THE
SUPREME COURT IN THE FOURTEENTH AMENDMENT FIELD TO SPECIFIC BILL OF
RIGHTS' PROTECTIONS ONLY AND KEEPS JUDGES FROM ROAMING AT WILL IN THEIR
OWN NOTIONS OF WHAT POLICIES OUTSIDE THE BILL OF RIGHTS ARE DESIRABLE
AND WHAT ARE NOT.  AND, MOST IMPORTANTLY FOR ME, THE SELECTIVE
INCORPORATION PROCESS HAS THE VIRTUE OF HAVING ALREADY WORKED TO MAKE
MOST OF THE BILL OF RIGHTS' PROTECTIONS APPLICABLE TO THE STATES. 

/1/  MY VIEW HAS BEEN AND IS THAT THE FOURTEENTH AMENDMENT, AS A
WHOLE, MAKES THE BILL OF RIGHTS APPLICABLE TO THE STATES.  THIS WOULD
CERTAINLY INCLUDE THE LANGUAGE OF THE PRIVILEGES AND IMMUNITIES CLAUSE,
AS WELL AS THE DUE PROCESS CLAUSE. 

/2/  FOR A MORE THOROUGH EXPOSITION OF MY VIEWS AGAINST THIS
APPROACH TO THE DUE PROCESS CLAUSE, SEE MY CONCURRING OPINION IN ROCHIN
V. CALIFORNIA, 342 U.S. 165, 174. 

/3/  SEE MURRAY'S LESSEE V. HOBOKEN LAND AND IMPROVEMENT CO., 18
HOW.  272, 276. 

/4/  28 EDW.  3, C. 3 (1354). 

/5/  SEE MALLOY V. HOGAN, 378 U.S. 1, 10; POINTER V. TEXAS, 380 U.S.
400, 406; MIRANDA V. ARIZONA, 384 U.S. 436, 464. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

EVERY AMERICAN JURISDICTION PROVIDES FOR TRIAL BY JURY IN CRIMINAL
CASES.  THE QUESTION BEFORE US IS NOT WHETHER JURY TRIAL IS AN ANCIENT
INSTITUTION, WHICH IT IS; NOR WHETHER IT PLAYS A SIGNIFICANT ROLE IN
THE ADMINISTRATION OF CRIMINAL JUSTICE, WHICH IT DOES; NOR WHETHER IT
WILL ENDURE, WHICH IT SHALL.  THE QUESTION IN THIS CASE IS WHETHER THE
STATE OF LOUISIANA, WHICH PROVIDES TRIAL BY JURY FOR ALL FELONIES, IS
PROHIBITED BY THE CONSTITUTION FROM TRYING CHARGES OF SIMPLE BATTERY TO
THE COURT ALONE.  IN MY VIEW, THE ANSWER TO THAT QUESTION, MANDATED
ALIKE BY OUR CONSTITUTIONAL HISTORY AND BY THE LONGER HISTORY OF TRIAL
BY JURY, IS CLEARLY "NO." 

THE STATES HAVE ALWAYS BORNE PRIMARY RESPONSIBILITY FOR OPERATING
THE MACHINERY OF CRIMINAL JUSTICE WITHIN THEIR BORDERS, AND ADAPTING IT
TO THEIR PARTICULAR CIRCUMSTANCES.  IN EXERCISING THIS RESPONSIBILITY,
EACH STATE IS COMPELLED TO CONFORM ITS PROCEDURES TO THE REQUIREMENTS
OF THE FEDERAL CONSTITUTION.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT REQUIRES THAT THOSE PROCEDURES BE FUNDAMENTALLY FAIR IN ALL
RESPECTS.  IT DOES NOT, IN MY VIEW, IMPOSE OR ENCOURAGE NATIONWIDE
UNIFORMITY FOR ITS OWN SAKE; IT DOES NOT COMMAND ADHERENCE TO FORMS
THAT HAPPEN TO BE OLD; AND IT DOES NOT IMPOSE ON THE STATES THE RULES
THAT MAY BE IN FORCE IN THE FEDERAL COURTS EXCEPT WHERE SUCH RULES ARE
ALSO FOUND TO BE ESSENTIAL TO BASIC FAIRNESS. 

THE COURT'S APPROACH TO THIS CASE IS AN UNEASY AND ILLOGICAL
COMPROMISE AMONG THE VIEWS OF VARIOUS JUSTICES ON HOW THE DUE PROCESS
CLAUSE SHOULD BE INTERPRETED.  THE COURT DOES NOT SAY THAT THOSE WHO
FRAMED THE FOURTEENTH AMENDMENT INTENDED TO MAKE THE SIXTH AMENDMENT
APPLICABLE TO THE STATES.  AND THE COURT CONCEDES THAT IT FINDS NOTHING
UNFAIR ABOUT THE PROCEDURE BY WHICH THE PRESENT APPELLANT WAS TRIED. 
NEVERTHELESS, THE COURT REVERSES HIS CONVICTION:  IT HOLDS, FOR SOME
REASON NOT APPARENT TO ME, THAT THE DUE PROCESS CLAUSE INCORPORATES THE
PARTICULAR CLAUSE OF THE SIXTH AMENDMENT THAT REQUIRES TRIAL BY JURY IN
FEDERAL CRIMINAL CASES-- INCLUDING, AS I READ ITS OPINION, THE
SOMETIMES TRIVIAL ACCOMPANYING BAGGAGE OF JUDICIAL INTERPRETATION IN
FEDERAL CONTEXTS.  I HAVE RAISED MY VOICE MANY TIMES BEFORE AGAINST THE
COURT'S CONTINUING UNDISCRIMINATING INSISTENCE UPON FASTEDING ON THE
STATES FEDERAL NOTIONS OF CRIMINAL JUSTICE, /1/  AND I MUST DO SO AGAIN
IN THIS INSTANCE.  WITH ALL RESPECT, THE COURT'S APPROACH AND ITS
READING OF HISTORY ARE ALTOGETHER TOPSY-TURVY. 

I. 

I BELIEVE I AM CORRECT IN SAYING THAT EVERY MEMBER OF THE COURT FOR
AT LEAST THE LAST 135 YEARS HAS AGREED THAT OUR FOUNDERS DID NOT
CONSIDER THE REQUIREMENTS OF THE BILL OF RIGHTS SO FUNDAMENTAL THAT
THEY SHOULD OPERATE DIRECTLY AGAINST THE STATES.  /2/  THEY WERE WONT
TO BELIEVE RATHER THAT THE SECURITY OF LIBERTY IN AMERICA RESTED
PRIMARILY UPON THE DISPERSION OF GOVERNMENTAL POWER ACROSS A FEDERAL
SYSTEM.  /3/  THE BILL OF RIGHTS WAS CONSIDERED UNNECESSARY BY SOME /4/
BUT INSISTED UPON BY OTHERS IN ORDER TO CURB THE POSSIBILITY OF ABUSE
OF POWER BY THE STRONG CENTRAL GOVERNMENT THEY WERE CREATING.  /5/ 

THE CIVIL WAR AMENDMENTS DRAMATICALLY ALTERED THE RELATION OF THE
FEDERAL GOVERNMENT TO THE STATES.  THE FIRST SECTION OF THE FOURTEENTH
AMENDMENT IMPOSES HIGHLY SIGNIFICANT RESTRICTIONS ON STATE ACTION.  BUT
THE RESTRICTIONS ARE COUCHED IN VERY BROAD AND GENERAL TERMS:
CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUR PROCESS OF LAW; EQUAL
PROTECTION OF THE LAWS.  CONSEQUENTLY, FOR 100 YEARS THIS COURT HAS
BEEN ENGAGED IN THE DIFFICULT PROCESS PROFESSOR JAFFE HAS WELL CALLED
"THE SEARCH FOR INTERMEDIATE PREMISES."  /6/  THE QUESTION HAS BEEN,
WHERE DOES THE COURT PROPERLY LOOK TO FIND THE SPECIFIC RULES THAT
DEFINE AND GIVE CONTENT TO SUCH TERMS AS "LIFE, LIBERTY, OR PROPERTY"
AND "DUE PROCESS OF LAW"? 

A FEW MEMBERS OF THE COURT HAVE TAKEN THE POSITION THAT THE
INTENTION OF THOSE WHO DRAFTED THE FIRST SECTION OF THE FOURTEENTH
AMENDMENT WAS SIMPLY, AND EXCLUSIVELY, TO MAKE THE PROVISIONS OF THE
FIRST EIGHT AMENDMENTS APPLICABLE TO STATE ACTION.  /7/  THIS VIEW HAS
NEVER BEEN ACCEPTED BY THIS COURT.  IN MY VIEW, OFTEN EXPRESSED
ELSEWHERE, /8/  THE FIRST SECTION OF THE FOURTEENTH AMENDMENT WAS MEANT
NEITHER TO INCORPOATE, NOR TO BE LIMITED TO, THE SPECIFIC GUARANTEES OF
THE FIRST EIGHT AMENDMENTS.  THE OVERWHELMING HISTORICAL EVIDENCE
MARSHALLED BY PROFESSOR FAIRMAN DEMONSTRATES, TO ME CONCLUSIVELY, THAT
THE CONGRESSMEN AND STATE LEGISLATORS WHO WROTE, DEBATED, AND RATIFIED
THE FOURTEENTH AMENDMENT DID NOT THINK THEY WERE "INCORPORATING" THE
BILL OF RIGHTS /9/  AND THE VERY BREADTH AND GENERALITY OF THE
AMENDMENT'S PROVISIONS SUGGEST THAT ITS AUTHORS DID NOT SUPPOSE THAT
THE NATION WOULD ALWAYS BE LIMITED TO MID-19TH CENTURY CONCEPTIONS OF
"LIBERTY" AND "DUE PROCESS OF LAW" BUT THAT THE INCREASING EXPERIENCE
AND EVOLVING CONSCIENCE OF THE AMERICAN PEOPLE WOULD ADD NEW
"INTERMEDIATE PREMISES."  IN SHORT, NEITHER HISTORY, NOR SENSE,
SUPPORTS USING THE FOURTEENTH AMENDMENT TO PUT THE STATES IN A
CONSTITUTIONAL STRAITJACKET WITH RESPECT TO THEIR OWN DEVELOPMENT IN
THE ADMINISTRATION OF CRIMINAL OR CIVIL LAW. 

ALTHOUGH I THEREFORE FUNDAMENTALLY DISAGREE WITH THE TOTAL
INCORPROATION VIEW OF THE FOURTEENTH AMENDMENT, IT SEEMS TO ME THAT
SUCH A POSITION DOES AT LEAST HAVE THE VIRTUE, LACKING IN THE COURT'S
SELECTIVE INCORPORATION APPROACH, OF INTERNAL CONSISTENCY:  WE LOOK TO
THE BILL OF RIGHTS, WORD FOR WORD, CLAUSE FOR CLAUSE, PRECEDENT FOR
PRECEDENT BECAUSE, IT IS SAID, THE MEN WHO WROTE THE AMENDMENT WANTED
IT THAT WAY.  FOR THOSE WHO DO NOT ACCEPT THIS "HISTORY" A DIFFERENT
SOURCE OF "INTERMEDIATE PREMISES" MUST BE FOUND.  THE BILL OF RIGHTS IS
NOT NECESSARILY IRRELEVANT TO THE SEARCH FOR GUIDANCE IN INTERPRETING
THE FOURTEENTH AMENDMENT, BUT THE REASON FOR AND THE NATURE OF ITS
RELEVANCE MUST BE ARTICULATED. 

APART FROM THE APPROACH TAKEN BY THE ABSOLUTE INCORPORATIONISTS, I
CAN SEE ONL[ ONE METHOD OF ANALYSIS THAT HAS ANY INTERNAL LOGIC.  THAT
IS TO START WITH THE WORDS "LIBERTY" AND "DUE PROCESS OF LAW" AND
ATTEMPT TO DEFINE THEM IN A WAY THAT ACCORDS WITH AMERICAN TRADITIONS
AND OUR SYSTEM OF GOVERNMENT.  THIS APPROACH, INVOLVING A MUCH MORE
DISCRIMINATING PROCESS OF ADJUDICATION THAN DOES "INCORPORATION," IS
ALBEIT DIFFICULT, THE ONE THAT WAS FOLLOWED THROUGHOUT THE 19TH AND
MOST OF THE PRESENT CENTURY.  IT ENTAILS A "GRADUAL PROCESS OF JUDICIAL
INCLUSION AND EXCLUSION,"  /10/  SEEKING, WITH DUE RECOGNITION OF
CONSTITUTIONAL TOLERANCE STATE EXPERIMENTATION AND DISPARITY, TO
ASCERTAIN THOSE "IMMUTABLE PRINCIPLES . . . OF FREE GOVERNMENT WHICH NO
MEMBER OF THE UNION MAY DISREGARD."  /11/  DUE PROCESS WAS NOT
RESTRICTED TO RULES FIXED IN THE PAST, FOR THAT "WOULD BE TO DENY EVERY
QUALITY OF THE LAW BUT ITS AGE, AND TO RENDER IT INCAPABLE OF PROGRESS
OR IMPROVEMENT."  /12/  NOR DID IT IMPOSE NATIONWIDE UNIFORMITY IN
DETAILS, FOR 

"(THE FOURTEENTH AMENDMENT DOES NOT PROFESS TO SECURE TO ALL PERSONS
IN THE UNITED STATES THE BENEFIT OF THE SAME LAWS AND THE SAME
REMEDIES.  GREAT DIVERSITIES IN THESE RESPECTS MAY EXIST IN TWO STATES
SEPARATED ONLY BY AN IMAGINARY LINE.  ON ONE SIDE OF THIS LINE THERE
MAY BE A RIGHT OF TRIAL BY JURY, AND ON THE OTHER SIDE NO SUCH RIGHT. 
EACH STATE PRESCRIBES ITS OWN MODES OF JUDICIAL PROCEEDING."  /13/ 

THROUGH THIS GRADUAL PROCESS, THIS COURT SOUGHT TO DEFINE "LIBERTY"
BY ISOLATING FREEDOMS THAT AMERICANS OF THE PAST AND OF THE PRESENT
CONSIDERED MORE IMPORTANT THAN ANY SUGGESTED COUNTERVAILING PUBLIC
OBJECTIVE.  THE COURT ALSO, BY INTERPRETATION OF THE PHRASE "DUE
PROCESS OF LAW,"  ENFORCED THE CONSTITUTION'S GUARANTEE THAT NO STATE
MAY IMPRISON AN INDIVIDUAL EXCEPT BY FAIR AND IMPARTIAL PROCEDURES. 

THE RELATIONSHIP OF THE BILL OF RIGHTS TO THIS "GRADUAL PROCESS"
SEEMS TO ME TO BE TWOFOLD.  IN THE FIRST PLACE IT HAS LONG BEEN CLEAR
THAT THE DUE PROCESS CLAUSE IMPOSES SOME RESTRICTIONS ON STATE ACTION
THAT PARALLEL BILL OF RIGHTS RESTRICTIONS ON FEDERAL ACTION.  SECOND,
AND MORE IMPORTANT THAN THIS ACCIDENTAL OVERLAP, IS THE FACT THAT THE
BILL OF RIGHTS IS EVIDENCE, AT VARIOUS POINTS, OF THE CONTENT AMERICANS
FIND IN THE TERM "LIBERTY" AND OF AMERICAN STANDARDS OF FUNDAMENTAL
FAIRNESS. 

AN EXAMPLE, BOTH OF THE PHENOMENON OF PARALLELISM AND THE USE OF THE
FIRST EIGHT AMENDMENTS AS EVIDENCE OF A HISTORIC COMMITMENT, IS FOUND
IN THE PARTIAL DEFINITION OF "LIBERTY" OFFERED BY MR. JUSTICE HOLMES,
DISSENTING IN GITLOW V. NEW YORK, 268 U.S. 652: 

"THE GENERAL PRINCIPLE OF FREE SPEECH . . . MUST BE TAKEN TO BE
INCLUDED IN THE FOURTEENTH AMENDMENT, IN VIEW OF THE SCOPE THAT HAS
BEEN GIVEN TO THE WORD 'LIBERTY' AS THERE USED, ALTHOUGH PERHAPS IT MAY
BE ACCEPTED WITH A SOMEWHAT LARGER LATITUDE OF INTERPRETATION THAN IS
ALLOWED TO CONGRESS BY THE SWEEPING LANGUAGE THAT GOVERNS OR OUGHT TO
GOVERN THE LAWS OF THE UNITED STATES."  ID., AT 672.  AS ANOTHER
EXAMPLE, MR. JUSTICE FRANKFURTER, SPEAKING FOR THE COURT IN WOLF V.
COLORADI, 338 U.S. 25, 27-28, RECOGNIZED THAT 

"(THE SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY INTRUSION BY THE
POLICE-- WHICH IS AT THE CORE OF THE FOURTH AMENDMENT-- IS BASIC TO A
FREE SOCIETY.  IT IS THEREFORE IMPLICIT IN 'THE CONCEPT OF ORDERED
LIBERTY' AND AS SUCH ENFORCEABLE AGAINST THE STATES THROUGH THE DUE
PROCESS CLAUSE." 

THE COURT HAS ALSO FOUND AMONG THE PROCEDURAL REQUIREMENTS OF "DUE
PROCESS OF LAW" CERTAIN RULES PARALLELING REQUIREMENTS OF THE FIRST
EIGHT AMENDMENTS.  FOR EXAMPLE IN POWELL V. ALABAMA, 287 U.S. 45, THE
COURT RULED THAT A STATE COULD NOT DENY COUNSEL TO AN ACCUSED IN A
CAPITAL CASE: 

"THE FACT THAT THE RIGHT INVOLVED IS OF SUCH A CHARACTER THA IT
CANNOT BE DENIED WITHOUT VIOLATING THOSE 'FUNDAMENTAL PRINCIPLES OF
LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR CIVIL AND
POLITICAL INSTITUTIONS' . . . IS OBVIOUSLY ONE OF THOSE COMPELLING
CONSIDERATIONS WHICH MUST PREVAIL IN DETERMINING WHETHER IT IS EMBRACED
WITHIN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, ALTHOUGH IT
BE SPECIFICALLY DEALT WITH IN ANOTHER PART OF THE FEDERAL
CONSTITUTION."  ID., AT 67.  LATER, THE RIGHT TO COUNSEL WAS EXTENDED
TO ALL FELONY CASES.  /14/  THE COURT HAS ALSO RULED, FOR EXAMPLE, THAT
"DUE PROCESS" MEANS A SPEEDY PROCESS, SO THAT LIBERTY WILL NOT BE LONG
RESTRICTED PRIOR TO AN ADJUDICATION, AND EVIDENCE OF FACT WILL NOT
BECOME STALE; /15/  THAT IN A SYSTEM COMMITTED TO THE RESOLUTION OF
ISSUES OF FACT BY ADVERSARY PROCEEDINGS THE RIGHT TO CONFRONT OPPOSING
WITNESSES MUST BE GUARANTEED; /16/  AND THAT IF ISSUES OF FACT ARE
TRIED TO A JURY, FAIRNESS DEMANDS A JURY IMPARTIALLY SELECTED.  /17/
THAT THESE REQUIREMENTS ARE FUNDAMENTAL TO PROCEDURAL FAIRNESS HARDLY
NEEDS REDEMONSTRATION. 

IN ALL OF THESE INSTANCES, THE RIGHT GUARANTEED AGAINST THE STATES
BY THE FOURTEENTH AMENDMENT WAS ONE THAT HAD ALSO BEEN GUARANTEED
AGAINST THE FEDERAL GOVERNMENT BY ONE OF THE FIRST EIGHT AMENDMENTS. 
THE LOGICAL CRITICAL THING, HOWEVER, WAS NOT THAT THE RIGHTS HAD BEEN
FOUND IN THE BILL OF RIGHTS, BUT THAT THEY WERE DEEMED, IN THE CONTEXT
OF AMERICAN LEGAL HISTORY, TO BE FUNDAMENTAL.  THIS WAS PERHAPS BEST
EXPLAINED BY MR. JUSTICE CARDOZO, SPEAKING FOR A COURT THAT INCLUDED
CHIEF JUSTICE HUGHES AND JUSTICES BRANDEIS AND STONE, IN PALKO V.
CONNECTICUT, 302 U.S. 319:     "IF THE FOURTEENTH AMENDMENT HAS
ABSORBED THEM, THE PROCESS OF ABSORPTION HAS HAD ITS SOURCE IN THE
BELIEF THAT NEITHER LIBERTY NOR JUSTICE WOULD EXIST IF THEY WERE
SACRIFICED."  ID., AT 326.  REFERRING TO POWELL V. ALABAMA, SUPRA, MR.
JUSTICE CARDOZO CONTINUED: 

"THE DECISION DID NOT TURN UPON THE FACT THAT THE BENEFIT OF COUNSEL
WOULD HAVE BEEN GUARANTEED TO THE DEFENDANTS BY THE PROVISIONS OF THE
SIXTH AMENDMENT IF THEY HAD BEEN PROSECUTED IN A FEDERAL COURT.  THE
DECISION TURNED UPON THE FACT THAT IN THE PARTICULAR SITUATION LAID
BEFORE US IN THE EVIDENCE THE BENEFIT OF COUNSEL WAS ESSENTIAL TO THE
SUBSTANCE OF A HEARING."  ID., AT 327.  MR. JUSTICE CARDOZO THEN WENT
ON TO EXPLAIN THAT THE FOURTEENTH AMENDMENT DID NOT IMPOSE ON EACH
STATE EVERY RULE OF PROCEDURE THAT SOME OTHER STATE, OR THE FEDERAL
COURTS, THOUGHT DESIRABLE, BUT ONLY THOSE RULES CRITICAL TO LIBERTY: 

     "THE LINE OF DIVISION MAY SEEM TO BE WAVERING AND BROKEN IF

  THERE IS A HASTY CATALOGUE OF THE CASES ON THE ONE SIDE AND THE

  OTHER.  REFLECTION AND ANALYSIS WILL INDUCE A DIFFERENT VIEW. 

  THERE EMERGES THE PERCEPTION OF A RATIONALIZING PRINCIPLE WHICH

  GIVES TO DISCRETE INSTANCES A PROPER ORDER AND COHERENCE.  THE

  RIGHT TO TRIAL BY JURY AND THE IMMUNITY FROM PROSECUTION EXCEPT

  AS THE RESULT OF AN INDICTMENT MAY HAVE VALUE AND IMPORTANCE. 

  EVEN SO, THEY ARE NOT OF THE VERY ESSENCE OF A SCHEME OF ORDERED

  LIBERTY.  TO ABOLISH THEM IS NOT TO VIOLATE A 'PRINCIPLE OF

  JUSTICE SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE

  AS TO BE RANKED AS FUNDAMENTAL.'  . . . FEW WOULD BE SO NARROW OR

  PROVINCIAL AS TO MAINTAIN THAT A FAIR AND ENLIGHTENED SYSTEM OF

  JUSTICE WOULD BE IMPOSSIBLE WITHOUT THEM."  ID., AT 325. 

TODAY'S COURT STILL REMAINS UNWILLING TO ACCEPT THE TOTAL
INCORPORATIONISTS' VIEW OF THE HISTORY OF THE FOURTEENTH AMENDMENT. 
THIS, IF ACCEPTED, WOULD AFFORD A COGENT REASON FOR APPLYING THE SIXTH
AMENDMENT TO THE STATES.  THE COURT IS ALSO, APPARENTLY, UNWILLING TO
FACE THE TASK OF DETERMINING WHETHER DENIAL OF TRIAL BY JURY IN THE
SITUATION BEFORE US, OR IN OTHER SITUATIONS, IS FUNDAMENTALLY UNFAIR. 
CONSEQUENTLY, THE COURT HAS COMPROMISED ON THE EASE OF THE
INCORPORATIONIST POSITION, WITHOUT ITS INTERNAL LOGIC.  IT HAS SIMPLY
ASSUMED THAT THE QUESTION BEFORE US IS WHETHER THE JURY TRIAL CLAUSE OF
THE SIXTH AMENDMENT SHOULD BE INCORPORATED INTO THE FOURTEENTH, JOT-FOR
JOT AND CASE-FOR-CASE, OR IGNORED.  THEN THE COURT MERELY DECLARES THAT
THE CLAUSE IN QUESTION IS "IN" RATHER THAN "OUT."  /18/ 

THE COURT HAS JUSTIFIED NEITHER ITS STARTING PLACE NOR ITS
CONCLUSION.  IF THE PROBLEM IS TO DISCOVER AND ARTICULATE THE RULES OF
FUNDAMENTAL FAIRNESS IN CRIMINAL PROCEEDINGS, THERE IS NO REASON TO
ASSUME THAT THE WHOLE BODY OF RULES DEVELOPED IN THIS COURT
CONSTITUTION SIXTH AMENDMENT JURY TRIAL MUST BE REGARDED AS A UNIT. 
THE REQUIREMENT OF TRIAL BY JURY IN FEDERAL CRIMINAL CASES HAS GIVEN
RISE TO NUMEROUS SUBSIDIARY QUESTIONS RESPECTING THE EXACT SCOPE AND
CONTENT OF THE RIGHT.  IT SURELY CANNOT BE THAT EVERY ANSWER THE COURT
HAS GIVEN, OR WILL GIVE, TO SUCH A QUESTION IS ATTIRBUTABLE TO THE
FOUNDERS; OR EVEN THAT EVERY RULE ANNOUNCED CARRIES EQUAL CONVICTION OF
THIS COURT; STILL LESS CAN IT BE THAT EVERY SUCH SUBPRINCIPLE IS
EQUALLY FUNDAMENTAL TO ORDERED LIBERTY. 

EXAMPLES ABOUND.  I SHOULD SUPPOSE IT OBVIOUSLY FUNDAMENTAL TO
FAIRNESS THAT A "JURY" MEANS AN "IMPARTIAL JURY."  /19/  I SHOULD THINK
IT EQUALLY OBVIOUS THAT THE RULE, IMPOSED LONG AGO IN THE FEDERAL
COURTS, THAT "JURY" MEANS "JURY OF EXACTLY TWELVE,"  /20/  IS NOT
FUNDAMENTAL TO ANYTHING:  THERE IS NO SIGNIFICANCE EXCEPT TO MYSTICS IN
THE NUMBER 12.  AGAIN, TRIAL BY JURY HAS BEEN HELD TO REQUIRE A
UNANIMOUS VERDICT OF JURORS IN THE FEDERAL COURTS, /21/  ALTHOUGH
UNANIMITY HAS NOT BEEN FOUND ESSENTIAL TO LIBERTY IN BRITAIN, WHERE THE
REQUIREMENT HAS BEEN ABANDONED.  /22/ 

ONE FURTHER EXAMPLE IS DIRECTLY RELEVANT HERE.  THE CO-EXISTENCE OF
A REQUIREMENT OF JURY TRIAL IN FEDERAL CRIMINAL CASES AND A HISTORIC
AND UNIVERSALLY RECOGNIZED EXCEPTION FOR "PETTY CRIMES" HAS COMPELLED
THIS COURT, ON OCCASION, TO DECIDE WHETHER A PARTICULAR CRIME IS PETTY,
OR IS INCLUDED WITHIN THE GUARANTEE.  /23/  INDIVIDUAL CASES HAVE BEEN
DECIDED WITHOUT GREAT CONVICTION AND WITHOUT REFERENCE TO A GUIDING
PRINCIPLE.  THE COURT TODAY HOLDS, FOR NO DISCERNIBLE REASON, THAT IF
AND WHEN THE LINE IS DRAWN ITS EXACT LOCATION WILL BE A MATTER OF SUCH
FUNDAMENTAL IMPORTANCE THAT IT WILL BE UNIFORMLY IMPOSED ON THE
STATES.  THIS COURT IS COMPELLED TO DECIDE SUCH OBSCURE BORDERLINE
QUESTIONS IN THE COURSE OF ADMINISTERING FEDERAL LAW.  THIS DOES NOT
MEAN THAT ITS DECISIONS ARE DEMONSTRABLY SOUNDER THAN THOSE THAT WOULD
BE REACHED BY STATE COURTS AND LEGISLATURES, LET ALONE THAT THEY ARE OF
SUCH IMPORTANCE THAT FAIRNESS DEMANDS THEIR IMPOSITION THROUGH THE
NATION. 

EVEN IF I COULD AGREE THAT THE QUESTION BEFORE US IS WHETHER SIXTH
AMENDMENT JURY TRIAL IS TOTALLY "IN" OR TOTALLY "OUT," I CAN FIND IN
THE COURT'S OPINION NO REAL REASONS FOR CONCLUDING THAT IT SHOULD BE
"IN."  THE BASIS FOR DIFFERENTIATING AMONG CLAUSES IN THE BILL OF
RIGHTS CANNOT BE THAT ONLY SOME CLAUSES ARE IN THE BILL OF RIGHTS, OR
THAT ONLY SOME ARE OLD AND MUCH PRAISED, OR THAT ONLY SOME HAVE PLAYED
AN IMPORTANT ROLE IN THE DEVELOPMENT OF FEDERAL LAW.  THESE THINGS ARE
TRUE OF ALL.  THE COURT SAYS THAT SOME CLAUSES ARE MORE "FUNDAMENTAL"
THAN OTHERS, BUT IT TURNS OUT TO BE USING THIS WORD IN A SENSE THAT
WOULD HAVE ASTONISHED MR. JUSTICE CARDOZO AND WHICH, IN ADDITION, IS OF
NO HELP.  THE WORD DOES NOT MEAN "ANALYTICALLY CRITICAL TO PROCEDURAL
FAIRNESS" FOR NO REAL ANALYSIS OF THE ROLE OF THE JURY IN MAKING
PROCEDURES FAIR IS EVERN ATTEMPTED.  INSTEAD, THE WORD TURNS OUT TO
MEAN "OLD," "MUCH PRAISED," AND "FOUND IN THE BILL OF RIGHTS."  THE
DEFINITION OF "FUNDAMENTAL" THUS TURNS OUT TO BE CIRCULAR. 

        II. 

SINCE, AS I SEE IT, THE COURT HAS NOT EVEN COME TO GRIPS WITH THE
ISSUES IN THIS CASE, IT IS NECESSARY TO START FROM THE BEGINNING.  WHEN
A CRIMINAL DEFENDANT CONTENDS THAT HIS STATE CONVICTION LACKED "DUE
PROCESS OF LAW," THE QUESTION BEFORE THIS COURT, IN MY VIEW, IS WHETHER
HE WAS DENIED ANY ELEMENT OF FUNDAMENTAL PROCEDURAL FAIRNESS. 
BELIEVING, AS I DO, THAT DUE PROCESS IS AN EVOLVING CONCEPT AND THAT
OLD PRINCIPLES ARE SUBJECT TO RE-EVALUATION IN LIGHT OF LATER
EXPERIENCE, I THINK IT APPROPRIATE TO DEAL ON ITS MERITS WITH THE
QUESTION WHETHER LOUISIANA DENIED APPELLANT DUE PROCESS OF LAW WHEN IT
TRIED HIM FOR SIMPLE ASSAULT WITHOUT A JURY. 

THE OBVIOUS STARTING PLACE IS THE FACT THAT THIS COURT HAS, IN THE
PAST, HELD THAT TRIAL BY JURY IS NOT A REQUISITE OF CRIMINAL DUE
PROCESS.  IN THE LEADING CASE, MAXWELL V. DOW, 176 U.S. 581, MR.
JUSTICE PECKHAM WROTE AS FOLLOWS FOR THE COURT:  /24/ 

     "TRIAL BY JURY HAS NEVER BEEN AFFIRMED TO BE A NECESSARY

  REQUISITE OF DUE PROCESS OF LAW . . . 

     " . . . THE RIGHT TO BE PROCEEDED AGAINST ONLY BY INDICTMENT,

 AND THE RIGHT TO A TRIAL BY TWELVE JURORS, ARE OF THE SAME

  NATURE, AND ARE SUBJECT TO THE SAME JUDGMENT, AND THE PEOPLE IN

  THE SEVERAL STATES HAVE THE SAME RIGHT TO PROVIDE BY THEIR

  ORGANIC LAW FOR THE CHANGE OF BOTH OR EITHER . . . (THE STATE HAS

  FULL CONTROL OVER THE PROCEDURE IN ITS COURTS, BOTH IN CIVIL AND

  CRIMINAL CASES, SUBJECT ONLY TO THE QUALIFICATION THAT SUCH

  PROCEDURE MUST NOT WORK A DENIAL OF FUNDAMENTAL RIGHTS OR

  CONFLICT WITH SPECIFIC AND APPLICABLE PROVISIONS OF THE FEDERAL

  CONSTITUTION.  THE LEGISLATION IN QUESTION IS NOT, IN OUR

  OPINION, OPEN TO EITHER OF THESE OBJECTIONS."  ID., AT 603-605. 

IN HAWAII V. MANKICHI, 190 U.S. 197, THE QUESTION WAS WHETHER THE
TERRITORY OF HAWAII COULD CONTINUE ITS PREANNEXATION PROCEDURE OF
PERMITTING CONVICTION BY NON-UNANIMOUS JURIES.  THE CONGRESSIONAL
RESOLUTION OF ANNEXATION HAD PROVIDED THAT MUNICIPAL LEGISLATION OF
HAWAII THAT WAS NOT CONTRARY TO THE UNITED STATES CONSTITUTION COULD
REMAIN IN FOCE.  THE COURT INTERPRETED THE RESOLUTION TO MEAN ONLY THAT
THOSE REQUIREMENTS OF THE CONSTITUTION THAT WERE "FUNDAMENTAL" WOULD BE
BINDING IN THE TERRITORY.  AFTER CONCLUDING THAT A MUNICIPAL STATUTE
ALLOWING A CONVICTION OF TREASON ON CIRCUMSTANTIAL EVIDENCE WOULD
VIOLATE A "FUNDAMENTAL" GUARANTEE OF THE CONSTITUTUION, THE COURT
CONTINUED: 

"WE WOULD EVEN GO FARTHER, AND SAY THAT MOST, IF NOT ALL, THE
PRIVILEGES AND IMMUNITIES CONTAINED IN THE BILL OF RIGHTS OF THE
CONSTITUTION WERE INTENDED TO APPLY FROM THE MOMENT OF ANNEXATION; BUT
WE PLACE OUR DECISION OF THIS CASE UPON THE GROUND THAT THE TWO RIGHTS
ALLEGED TO BE BIOLATED IN THIS CASE (SIXTH AMENDMENT JURY TRIAL AND
GRAND JURY INDICTMENT) ARE NOT FUNDAMENTAL IN THEIR NATURE, BUT CONCERN
MERELY A METHOD OF PROCEDURE WHICH SIXTY YEARS OF PRACTICE HAD SHOWN TO
BE SUITED TO THE CONDITIONS OF THE ISLANDS, AND WELL CALCULATED TO
CONSERVE THE RIGHTS OF THEIR CITIZENS TO THEIR LIVES, THEIR PROPERTY
AND THEIR WELL-BEING."  ID., AT 217-218.  NUMEROUS OTHER CASES IN THIS
COURT HAVE ASSUMED THAT JURY TRIAL IS NOT FUNDAMENTAL TO ORDERED
LIBERTY.  /25/ 

ALTHOUGH IT IS OF COURSE OPEN TO THIS COURT TO RE-EXAMINE THESE
DECISIONS, I CAN SEE NO REASON WHY THEY SHOULD NOW BE OVERTURNED.  IT
CAN HARDLY BE SAID THAT TIME HAS ALTERED THE QUESTION, OR BROUGHT
SIGNIFICANT NEW EVIDENCE TO BEAR UPON IT.  THE VIRTUES AND DEFECTS OF
THE JURY SYSTEM HAVE BEEN HOTLY DEBATED FOR A LONG TIME, /26/  AND ARE
HOTLY DEBATED TODAY, WITHOUT SIGNIFICANT CHANGE IN THE LINES OF
ARGUMENT.  /27/ 

THE ARGUMENT THAT JURY TRIAL IS NOT A REQUISITE OF DUE PROCESS IS
QUITE SIMPLE.  THE CENTRAL PROPOSITION OF PALKO, SUPRA, A PROPOSITION
TO WHICH I WOULD ADHERE, IS THAT "DUE PROCESS OF LAW" REQUIRES ONLY
THAT CRIMINAL TRIALS BE FUNDAMENTALLY FAIR.  AS STATED ABOVE, APART
FROM THE THEORY THAT IT WAS HISTORICALLY INTENDED AS A MERE SHORTHAND
FOR THE BILL OF RIGHTS, I DO NOT SEE WHAT ELSE "DUE PROCESS OF LAW" CAN
INTELLIGIBLY BE THOUGHT TO MEAN.  IF DUE PROCESS OF LAW REQUIRES ONLY
FUNDAMENTAL FAIRNESS, /28/  THEN THE INQUIRY IN EACH CASE MUST BE
WHETHER A STATE TRIAL PROCESS WAS A FAIR ONE.  THE COURT HAS HELD,
PROPERLY I THINK, THAT IN AN ADVERSARY PROCESS IT IS A REQUISITE OF
FAIRNESS, FOR WHICH THERE IS NO ADEQUATE SUBSTITUTE, THAT A CRIMINAL
DEFENDANT BE AFFORDED A RIGHT TO COUNSEL AND TO CROSS-EXAMINE OPPOSING
WITNESSES.  BUT IT SIMPLY HAS NOT BEEN DEMONSTRATED, NOR, I THINK, CAN
IT BE DEMONSTRATED, THAT TRIAL BY JURY IS THE ONLY FAIR MEANS OF
RESOLVING ISSUES OF FACT. 

THE JURY IS OF COURSE NOT WITHOUT VIRTUES.  IT AFFORDS ORDINARY
CITIZENS A VALUABLE OPPORTUNITY TO PARTICIPATE IN A PROCESS OF
GOVERNMENT, AN EXPERIENCE FOSTERING, ONE HOPES, A RESPECT FOR LAW. 
/29/  IT EASES THE BURDEN ON JUDGES BY ENABLING THEM TO SHARE A PART OF
THEIR SOMETIMES AWESOME RESPONSIBILITY.  /30/  A JURY MAY, AT TIMES,
AFFORD A HIGHER JUSTICE BY REFUSING TO ENFORCE HARSH LAWS (ALTHOUGH IT
NECESSARILY DOES SO HAPHAZARDLY, RAISING THE QUESTIONS WHETHER
ARBITRARY ENFORCEMENT OF HARSH LAWS IS BETTER THAN TOTAL ENFORCEMENT,
AND WHETHER THE JURY SYSTEM IS TO BE DEFENDED ON THE GROUND THAT JURORS
SOMETIMES DISOBEY THEIR OATHS).  /31/  AND THE JURY MAY, OR MAY NOT,
CONTRIBUTE DESIRABLY TO THE WILLINGNESS OF THE GENERAL PUBLIC TO ACCEPT
CRIMINAL JUDGMENTS AS JUST.  /32/ 

IT CAN HARDLY BE GAINSAID, HOWEVER, THAT THE PRINCIPAL ORIGINAL
VIRTUE OF THE JURY TRIAL-- THE LIMITATIONS A JURY IMPOSES ON A
TYRANNOUS JUDICIARY-- HAS LARGELY DISAPPEARED.  WE NO LONGER LIVE IN A
MEDIEVAL OR COLONIAL SOCIETY.  JUDGES ENFORCE LAWS ENACTED BY
DEMOCRATIC DECISION, NOT BY REGAL FIAT.  THEY ARE ELECTED BY THE PEOPLE
OR APPOINTED BY THE PEOPLE'S ELECTED OFFICIALS, AND ARE RESPONSIBLE NOT
TO A DISTANT MONARCH ALONE BUT TO REVIEWING COURTS, INCLUDING THIS
ONE.  /33/ 

THE JURY SYSTEM CAN ALSO BE SAID TO HAVE SOME INHERENT DEFECTS, WHICH
ARE MULTIPLIED BY THE EMERGENCE OF THE CRIMINAL LAW FROM THE RELATIVE
SIMPLICITY THAT EXISTED WHEN THE JURY SYSTEM WAS DEVISED.  /34/  IT IS
A CUMBERSOME PROCESS, NOT ONLY IMPOSING GREAT COST IN TIME AND MONEY ON
BOTH THE STATE AND THE JURORS THEMSELVES, /35/  BUT ALSO CONTRIBUTING
TO DELAY IN THE MACHINERY OF JUSTICE.  /36/  UNTRAINED JURORS ARE
PRESUMABLY LESS ADEPT AT REACHING ACCURATE CONCLUSIONS OF FACT THAN
JUDGES, PARTICULARLY IF THE ISSUES ARE MANY OR COMPLEX.  /37/  AND IT
IS ARGUED BY SOME THAT TRIAL BY JURY, FAR FROM INCREASING PUBLIC
RESPECT FOR LAW, IMPAIRS IT:  THE AVERAGE MAN, IT IS SAID, REACTS
FAVORABLY NEITHER TO THE NOTION THAT MATTERS HE KNOWS TO BE COMPLEX ARE
BEING DECIDED BY OTHER AVERAGE MEN, /38/  NOR TO THE WAY THE JURY
SYSTEM DISTORTS THE PROCESS OF ADJUDICATION.  /39/ 

THAT TRIAL BY JURY IS NOT THE ONLY FAIR WAY OF ADJUDICATING CRIMINAL
GUILT IS WELL ATTESTED BY THE FACT THAT IT IS NOT THE PREVAILING WAY,
EITHER IN ENGLAND OR IN THIS COUNTRY.  FOR ENGLAND, ONE EXPERT MAKES
THE FOLLOWING ESTIMATES.  PARLIAMENT GENERALLY PROVIDES THAT NEW
STATUTORY OFFENSES, UNLESS THEY ARE OF "CONSIDERABLE GRAVITY" SHALL BE
TRIED TO JUDGES; CONSEQUENTLY, SUMMARY OFFENSES NOW OUTNUMBER OFFENSES
FOR WHICH JURY TRIAL IS AFFORDED BY MORE THAN SIX TO ONE.  THEN, WITHIN
THE LATTER CATEGORY, 84% OF ALL CASES ARE IN FACT TRIED TO THE COURT. 
OVER ALL, "THE RATIO OF DEFENDANTS ACTUALLY TRIED BY JURY BECOMES IN
SOME YEARS LITTLE MORE THAN 1 PER CENT."  /40/ 

IN THE UNITED STATES, WHERE IT HAS NOT BEEN AS GENERALLY ASSUMED
THAT JURY WAIVER IS PERMISSIBLE, /41/  THE STATISTICS ARE ONLY SLIGHTLY
LESS REVEALING.  TWO EXPERTS HAVE ESTIMATED THAT, OF ALL PROSECUTIONS
FOR CRIMES TRIABLE TO A JURY, 75% ARE SETTLED BY GUILTY PLEA AND 40% OF
THE REMAINDER ARE TRIED TO THE COURT.  /42/  IN ONE STATE, MARYLAND,
WHICH HAS ALWAYS PROVIDED FOR WAIVER, THE RATE OF COURT TRIAL APPEARS
IN SOME YEARS TO HAVE REACHED 90%.  /43/  THE COURT RECOGNIZES THE
FORCE OF THESE STATISTICS IN STATING,     "WE WOULD NOT ASSERT,
HOWEVER, THAT EVERY CRIMINAL TRIAL-- OR ANY PARTICULAR TRIAL-- HELD
BEFORE A JUDGE ALONE IS UNFAIR OR THAT A DEFENDANT MAY NEVER BE AS
FAIRLY TREATED BY A JUDGE AS HE WOULD BE BY A JURY."  ANTE, AT 158.  I
AGREE.  I THEREFORE SEE NO REASON WHY THIS COURT SHOULD REVERSE THE
CONVICTION OF APPELLANT, ABSENT ANY SUGGESTION THAT HIS PARTICULAR
TRIAL WAS IN FACT UNFAIR, OR COMPEL THE STATE OF LOUISIANA TO AFFORD
JURY TRIAL IN AN AS YET UNBOUNDED CATEGORY OF CASES THAT CAN, WITHOUT
UNFAIRNESS, BE TRIED TO A COURT. 

INDEED, EVEN IF I WERE PERSUADED THAT TRIAL BY JURY IS A FUNDAMENTAL
RIGHT IN SOME CRIMINAL CASES, I COULD SEE NOTHING FUNDAMENTAL IN THE
RULE, NOT YET FORMULATED BY THE COURT, THAT PLACES THE PROSECUTION OF
APPELLANT FOR SIMPLE BATTERY WITHIN THE CATEGORY OF "JURY CRIMES"
RATHER THAN "PETTY CRIMES."  TRIAL BY JURY IS ANCIENT, IT IS TRUE. 
ALMOST EQUALLY ANCIENT, HOWEVER, IS THE DISCOVERY THAT, BECAUSE OF IT, 

"THE KING'S MOST LOVING SUBJECTS ARE MUCH TRAVILED AND OTHERWISE
ENCUMBERED IN COMING AND KEEPING OF THE SAID SIX WEEKS SESSIONS, TO
THEIR COSTS, CHARGES, UNQUIETNESS."  /44/ AS A RESULT, THROUGH THE LONG
COURSE OF BIRTISH AND AMERICAN HISTORY, SUMMARY PROCEDURES HAVE BEEN
USED IN A VARYING CATEGORY OF LESSER CRIMES AS A FLEXIBLE RESPONSE TO
THE BURDEN JURY TRIAL WOULD OTHERWISE IMPOSE. 

THE USE OF SUMMARY PROCEDURES HAS LONG BEEN WISESPREAD.  BRITISH
PROCEDURE IN 1776 EXEMPTED FROM THE REQUIREMENT OF JURY TRIAL 

"(VIOLATIONS OF THE LAWS RELATING TO LIQUOR, TRADE AND MANUFACTURE,
LABOR SMUGGLING, TRAFFIC ON THE HIGHWAY, THE SABBATH, 'CHEATS,'
GAMBLING, SWEARING, SMALL THEFTS, ASSAULTS, OFFENSES TO PROPERTY,
SERVANTS AND SEAMEN, VAGABONDAGE . . . (AND) AT LEAST A HUNDRED MORE .
. . "  /45/ PENALTIES FOR SUCH OFFENSES INCLUDED HEAVY FINES (WITH
IMPRISONMENT UNTIL THEY WERE PAID), WHIPPINGS, AND IMPRISONMENT AT HARD
LABOR.  /46/ 

NOR HAD THE COLONIES A CLEANER SLATE, ALTHOUGH PRACTICES VARIED
GREATLY FROM PLACE TO PLACE WITH CONDITIONS.  IN MASSACHUSETTS, CRIMES
PUNISHABLE BY WHIPPING (UP TO 10 STROKES), THE STOCKS (UP TO THREE
HOURS), THE DUCKING STOOL, AND FINES AND IMPRISONMENT WERE TRIABLE TO
MAGISTRATES.  /47/  THE DECISION OF A MAGISTRATE COULD, IN THEORY, BE
APPEALED TO A JURY, BUT A STIFF RECOGNIZANCE MADE EXERCISE OF THIS
RIGHT QUITE RARE.  /48/  NEW YORK WAS SOMEWHAT HARSHER.  FOR EXAMPLE,
"ANYONE ADJUDGED BY TWO MAGISTRATES TO BE AN IDLE, DISORDERLY OR
VAGRANT PERSON MIGHT BE TRANSPORTED WHENCE HE CAME, AND ON REAPPEARANCE
BE WHIPPED FROM CONSTABLE TO CONSTABLE WITH THIRTY-ONE LASHES BY
EACH."  /49/  ANYONE COMMITTING A CRIMINAL OFFENSE "UNDER THE DEGREE OF
GRAND LARCENY" AND UNABLE TO FURNISH BAIL WITHIN 48 HOURS COULD BE
SUMMARILY TRIED BY THREE JUSTICES.  /50/  WITH LOCAL VARIATIONS,
EXAMPLES COULD BE MULTIPLED. 

THE POINT IS NOT THAT MANY OFFENSES THAT ENGLISH-SPEAKING
COMMUNITIES HAVE, AT ONE TIME OR ANOTHER, REGARDED AS TRIABLE WITHOUT A
JURY ARE MORE SERIOUS, AND CARRY MORE SERIOUS PENALTIES, THAN THE ONE
INVOLVED HERE.  THE POINT IS RATHER THAT UNTIL TODAY FEW PEOPLE WOULD
HAVE THOUGHT THE EXACT LOCATION OF THE LINE MATTERED VERY MUCH.  THERE
IS NO OBVIOUS REASON WHY A JURY TRIAL IS A REQUISITE OF FUNDAMENTAL
FAIRNESS WHEN THE CHARGE IS ROBBERY, AND NOT A REQUISITE OF FAIRNESS
WHEN THE SAME DEFENDANT, FOR THE SAME ACTIONS, IS CHARGED WITH ASSAULT
AND PETTY THEFT.  /51/  THE REASON FOR THE HISTORIC EXCEPTION FOR
RELATIVELY MINOR CRIMES IS THE OBVIOUS ONE:  THE BURDEN OF JURY TRIAL
WAS THROUGH TO OUTWEIGH ITS MARGINAL ADVANTAGES.  EXACTLY WHY THE
STATES SHOULD NOT BE ALLOWED TO MAKE CONTINUING ADJUSTMENTS, BASED ON
THE STATE OF THEIR CRIMINAL DOCKETS AND THE DIFFICULTY OF SUMMONING
JURORS, SIMPLY ESCAPES ME. 

IN SUM, THERE IS A WIDE RANGE OF VIEWS ON THE DESIRABILITY OF TRIAL
BY JURY, AND ON THE WAYS TO MAKE IT MOST EFFECTIVE WHEN IT IS USED;
THERE IS ALSO CONSIDERABLE VARIATION FROM STATE TO STATE IN LOCAL
CONDITIONS SUCH AS THE SIZE OF THE CRIMINAL CASELOAD, THE EASE OR
DIFFICULTY OF SUMMONING JURORS, AND OTHER TRIAL CONDITIONS BEARING ON
FAIRNESS.  WE HAVE BEFORE US, THEREFORE, AN ALMOST PERFECT EXAMPLE OF A
SITUATION IN WHICH THE CELEBRATED DICTUM OF MR. JUSTICE BRANDEIS SHOULD
BE INVOKED.  IT IS, HE SAID, 

"ONE OF THE HAPPY INCIDENTS OF THE FEDERAL SYSTEM THAT A SINGLE
COURAGEOUS STATE MAY, IF ITS CITIZENS CHOOSE, SERVE AS A LABORATORY.  .
. "  NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262, 280, 311 (DISSENTING
OPINION).  THIS COURT, OTHER COURTS, AND THE POLITICAL PROCESS ARE
AVAILABLE TO CORRECT ANY EXPERIMENTS IN CRIMINAL PROCEDURE THAT PROVE
FUNDAMENTALLY UNFAIR TO DEFENDANTS.  THAT IS NOT WHAT IS BEING DONE
TODAY:  INSTEAD, AND QUITE WITHOUT REASON, THE COURT HAS CHOSEN TO
IMPOSE UPON EVERY STATE ONE MEANS OF TRYING CRIMINAL CASES; IT IS A
GOOD MEANS, BUT IT IS NOT THE ONLY FAIR MEANS, AND IT IS NOT
DEMONSTRABLY BETTER THAN THE ALTERNATIVES STATES MIGHT DEVISE. 

I WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF LOUISIANA. 

/1/  SEE, E.G., MY OPINIONS IN MAPP V. OHIO, 367 U.S. 643, 672
(DISSENTING); KER V. CALIFORNIA, 374 U.S. 23, 44 (CONCURRING); MALLOY
V. HOGAN, 378 U.S. 1, 14 (DISSENTING); POINTER V. TEXAS, 380 U.S. 400,
408 (CONCURRING); GRIFFIN V. CALIFORNIA, 380 U.S. 609, 615
(CONCURRING); KLOPFER V. NORTH CAROLINA, 386 U.S. 213, 226
(CONCURRING). 

/2/  BARRON V. BALTIMORE, 7 PET. 243 (1833), HELD THAT THE FIRST
EIGHT AMENDMENTS RESTRICTED ONLY FEDERAL ACTION. 

/3/  THE LOCUS CLASSICUS FOR THIS VIEWPOINT IS THE FEDERALIST NO. 51
(MADISON). 

/4/  THE BILL OF RIGHTS WAS OPPOSED BY HAMILTON AND OTHER PROPONENTS
OF A STRONG CENTRAL GOVERNMENT.  SEE THE FEDERALIST NO. 84; SEE
GENERALLY C. ROSSITER, 1787; THE GRAND CONVENTION 284, 302-303. 

/5/  IN BARRON V. BALTIMORE, SUPRA, AT 250, CHIEF JUSTICE MARSHALL
SAID, "THESE AMENDMENTS DEMANDED SECURITY AGAINST THE APPREHENDED
ENCROACHMENTS OF THE GENERAL GOVERNMENT-- NOT AGAINST THOSE OF THE
LOCAL GOVERNMENTS." 

/6/  JAFFE, WAS BRANDEIS AN ACTIVIST?  THE SEARCH FOR INTERMEDIATE
PREMISES, 80 HARV.L.REV.  986 (1967). 

/7/  SEE ADAMSON V. CALIFORNIA, 332 U.S. 46, 71 (DISSENTING OPINION
OF BLACK, J.); O'NEIL V. VERMONT, 144 U.S. 323, 366, 370 (DISSENTING
OPINION OF HARLAN, J.)  (1892); H. BLACK, "DUE PROCESS OF LAW," IN A
CONSTITUTIONAL FAITH 23 (1968). 

8/  IN ADDITION TO THE OPINIONS CITED IN N. 1, SUPRA, SEE, E.G., MY
OPINIONS IN POE V. ULLMAN, 367 U.S. 497, 522,AT 539-545 (DISSENTING),
AND GRISWOLD V. CONNECTICUT, 381 U.S. 479, 499 (CONCURRING). 

/9/  FAIRMAN, DOES THE FOURTEENTH AMENDMENT INCORPORATE THE BILL OF
RIGHTS?  THE ORIGINAL UNDERSTANDING, 2 STAN.L.REV.  5 (1949). 
PROFESSOR FAIRMAN WAS NOT CONTENT TO REST UPON THE OVERWHELMING FACT
THAT THE GREAT WORDS OF THE FOUR CLAUSES OF THE FIRST SECTION OF THE
FOURTEENTH AMENDMENT WOULD HAVE BEEN AN EXCEEDINGLY PECULIAR WAY TO SAY
THAT "THE RIGHTS HERETOFORE GUARANTEED AGAINST FEDERAL INTRUSION BY THE
FIRST EIGHT AMENDMENTS ARE HENCEFORTH GUARANTEED AGAINST STATE
INTRUSION AS WELL."  HE THEREFORE SIFTED THE MOUNTAIN OF MATERIAL
COMPRISING THE DEBATES AND COMMITTEE REPORTS RELATING TO THE AMENDMENT
IN BOTH HOUSES OF CONGRESS AND IN THE STATE LEGISLATURES THAT PASSED
UPON IT.  HE FOUND THAT IN THE IMMENSE CORPUS OF COMMENTS ON THE
PURPOSE AND EFFECTS OF THE PROPOSED AMENDMENT, AND ON ITS VIRTUES AND
DEFECTS, THERE IS ALMOST NO EVIDENCE WHATEVER FOR "INCORPORATION."  THE
FIRST EIGHT AMENDMENTS ARE SO MUCH AS MENTIONED BY ONLY TWO MEMBERS OF
CONGRESS, ONE OF WHOM EFFECTIVELY DEMONSTRATED (A) THAT HE DID NOT
UNDERSTAND BARRON V. BALTIMORE, 7 PET. 243, AND THEREFORE DID NOT
UNDERSTAND THE QUESTION OF INCORPORATION, AND (B) THAT HE WAS NOT
HIMSELF UNDERSTOOD BY HIS COLLEAGUES.  ONE STATE LEGISLATIVE COMMITTEE
REPORT, REJECTED BY THE LEGISLATURE AS A WHOLE, FOUND SEC. 1 OF THE
FOURTEENTH AMENDMENT SUPERFLUOUS BECAUSE IT DUPLICATED THE BILL OF
RIGHTS:  THE COMMITTEE OBVIOUSLY DID NOT UNDERSTAND BARRON V. BALTIMORE
EITHER.  THAT IS ALL PROFESSOR FAIRMAN COULD FIND, IN HUNDREDS OF PAGES
OF LEGISLATIVE DISCUSSION PRIOR TO PASSAGE OF THE AMENDMENT, THAT EVEN
SUGGESTS INCORPROATION. 

TO THIS NEGATIVE EVIDENCE THE JUDICIAL HISTORY OF THE AMENDMENT
COULD BE ADDED.  FOR EXAMPLE, IT PROVED POSSIBLE FOR A COURT WHOSE
MEMBERS HAD LIVED THROUGH RECONSTRUCTION TO REITERATE THE DOCTRINE OF
BARRON V. BALTIMORE, THAT THE BILL OF RIGHTS DID NOT APPLY TO THE
STATES, WITHOUT SO MUCH AS QUESTIONING WHETHER THE FOURTEENTH AMENDMENT
HAD ANY EFFECT ON THE CONTINUED VALIDITY OF THAT PRINCIPLE.  E.G.,
WALKER V. SAUVINET, 92 U.S. 90; SEE GENERALLY MORRISON, DOES THE
FOURTEENTH AMENDMENT INCORPORATE THE BILL OF RIGHTS?  THE JUDICIAL
INTERPRETATION, 2 STAN.L.REV.  140 (1949). 

/10/  DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 104. 

/11/  HOLDEN V. HARDY, 169 U.S. 366, 389. 

/12/  HURTADO V. CALIFORNIA, 110 U.S. 516, 529. 

/13/  MISSOURI V. LEWIS, 101 U.S. 22, 31. 

/14/  GIDEON V. WAINWRIGHT, 372 U.S. 335.  THE RIGHT TO COUNSEL WAS
FOUND IN THE FOURTEENTH AMENDMENT BECAUSE, THE COURT HELD, IT WAS
ESSENTIAL TO A FAIR TRIAL.  SEE 372 U.S.,AT 342-345. 

/15/  KLOPFER V. NORTH CAROLINA, 386 U.S. 213. 

/16/  POINTER V. TEXAS, 380 U.S. 400. 

/17/  IRVIN V. DOWD, 366 U.S. 717. 

/18/  THE SAME ILLOGICAL WAY OF DEALING WITH A FOURTEENTH AMENDMENT
PROBLEM WAS EMPLOYED IN MALLOY V. HOGAN, 378 U.S. 1, WHICH HELD THAT
THE DUE PROCESS CLAUSE GUARANTEED THE PROTECTION OF THE SELF
INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT AGAINST STATE ACTION.  I
DISAGREED AT THAT TIME BOTH WITH THE WAY THE QUESTION WAS FRAMED AND
WITH THE RESULT THE COURT REACHED.  SEE MY DISSENTING OPINION, ID., AT
14.  I CONSIDER MYSELF BOUND BY THE COURT'S HOLDING IN MALLOY WITH
RESPECT TO SELF-INCRIMINATION.  SEE MY CONCURRING OPINION IN GRIFFIN V.
CALIFORNIA, 380 U.S. 609, 615.  I DO NOT THINK THAT MALLOY HELD, NOR
WOULD I CONSIDER MYSELF BOUND BY A HOLDING, THAT EVERY QUESTION ARISING
UNDER THE DUE PROCESS CLAUSE SHALL BE SETTLED BY AN ARBITRARY DECISION
WHETHER A CLAUSE IN THE BILL OF RIGHTS IS "IN" OR "OUT." 

/19/  THE COURT HAS SO HELD IN, E.G., IRVIN V. DOWD, 366 U.S. 717. 
COMPARE DENNIS V. UNITED STATES, 339 U.S. 162. 

/20/  E.G., RASSMUSSEN V. UNITED STATES, 197 U.S. 516. 

/21/  E.G., ANDRES V. UNITED STATES, 333 U.S. 740.  WITH RESPECT TO
THE COMMON-LAW NUMBER AND UNANIMITY REQUIREMENTS, THE COURT SUGGESTS
THAT THESE PRESENT NO PROBLEM BECAUSE "OUR DECISIONS INTERPRETING THE
SIXTH AMENDMENT ARE ALWAYS SUBJECT TO RECONSIDERATION . . . "  ANTE, AT
158, N. 30.  THESE EXAMPLES ILLUSTRATE A MAJOR DANGER OF THE
"INCORPORATION" APPROACH-- THAT PROVISIONS OF THE BILL OF RIGHTS MAY BE
WATERED DOWN IN THE NEEDLESS PURSUIT OF UNIFORMITY.  CF. MY CONCURRING
OPINION IN KER V. CALIFORNIA, 374 U.S. 23, 44.  MR. JUSTICE WHITE
ALLUDED TO THIS PROBLEM IN HIS DISSENTING OPINION IN MALLOY V. HOGAN,
SUPRA, AT 38. 

/22/  CRININAL JUSTICE ACT OF 1967, SEC. 13. 

/23/  E.G., CALLAN V. WILSON, 127 U.S. 540; DISTRICT OF COLUMBIA V.
CLAVANS, 300 U.S. 617; DISTRICT OF COLUMBIA V. COLTS, 282 U.S. 63. 

/24/  THE PRECISE ISSUE IN MAXWELL WAS WHETHER A JURY OF EIGHT
RATHER THAN 12 JURORS COULD BE EMPLOYED IN CRIMINAL PROSECUTIONS IN
UTAH.  THE COURT HELD THAT THIS WAS PERMISSIBLE BECAUSE THE FOURTEENTH
AMENDMENT DID NOT REQUIRE THE STATES TO PROVIDE TRIAL BY JURY AT ALL. 
THE COURT SEEMS TO THINK THIS WAS DICTUM.  AS A TECHNICAL MATTER,
HOWEVER, A STATEMENT THAT IS CRITICAL TO THE CHAIN OF REASONING BY
WHICH A RESULT IS IN FACT REACHED DOES NOT BECOME DICTUM SIMPLY BECUASE
A LATER COURT CAN IMAGINE A TOTALLY DIFFERENT WAY OF DECIDING THE
CASE.  SEE JORDAN V. MASSACHUSETTS, 225 U.S. 167, 176, CITING MAXWELL
FOR THE PROPOSITION THAT "THE REQUIREMENT OF DUE PROCESS DOES NOT
DEPRIVE A STATE OF THE POWER TO DISPENSE WITH JURY TRIAL ALTOGETHER." 

/25/  E.G., IRVIN V. DOWD, SUPRA, AT 721; FAY V. NEW YORK, 332 U.S.
261, 288; PALKO V. CONNECTICUT, SUPRA, AT 325; SNYDER V. MASSACHUSETTS,
291 U.S. 97, 105; BROWN V. NEW JERSEY, 175 U.S. 172, 175; MISSOURI V.
LEWIS, SUPRA, AT 31. 

/26/  E.G., DEADY, TRIAL BY JURY, 17 AM.L.REV.  398, 399-400
(1883): 

"STILL IN THESE DAYS OF PROGRESS AND EXPERIMENT, WHEN EVERYTHING IS ON
TRIAL AT THE BAR OF HUMAN REASON OR CONCEIT, IT IS QUITE THE FASHION TO
SPEAK OF JURY TRIAL AS SOMETHING THAT HAS OUTLIVED ITS USEFULNESS. 
INTELLIGENT AND WELL-MEANING PEOPLE OFTEN SNEER AT IT AS AN AWKWARD AND
USELESS IMPEDIMENT TO THE SPEEDY AND CORRECT ADMINISTRATION OF JUSTICE,
AND A CONVENIENT LOOP-HOLE FOR THE ESCAPE TRIALS WE STOMETIMES HAVE IN
THE UNITED STATES, IT MUST BE ADMITTED THAT THIS CRITICISM IS NOT
WITHOUT FOUNDATION." 

/27/  SEE GENERALLY KALVEN, MEMORANDUM REGARDING JURY SYSTEM,
PRINTED IN HEARINGS ON RECORDING OF JURY DELIBERATIONS BEFORE THE
SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF THE INTERNAL SECURITY
ACT OF THE SENATE COMMITTEE ON THE JUDICIARY, 84TH CONG., 1ST SESS., 63
81.  IN PARTICULAR, "THE DEBATE HAS BEEN GOING ON FOR A LONG TIME (AT
LEAST SINCE 1780) AND THE ARGUMENTS WHICH WERE ADVANCED PRO AND CON
HAVEN'T CHANGED MUCH IN THE INTERIM.  NOR, CONTRARY TO MY FIRST
IMPRESSION, DOES THERE SEEM TO BE ANY PARTICULAR PERIOD IN WHICH THE
DEBATE GROWS HOTTER OR COLDER.  IT HAS ALWAYS BEEN A HOT DEBATE."  ID.,
AT 63. 

/28/  SEE, E.G., SNYDER V. MASSACHUSETTS, SUPRA, AT 107-108
(CARDOZI, J.): 

"SO FAR AS THE FOURTEENTH AMENDMENT IS CONCERNED, THE PRESENCE OF A
DEFENDANT (AT TRIAL) IS A CONDITION OF DUE PROCESS TO THE EXTENT THAT A
FAIR AND JUST HEARING WOULD BE THWARTED BY HIS ABSENCE, AND TO THAT
EXTENT ONLY."     /29/  THE POINT IS MADE BY, AMONG OTHERS, A.
TOCQUEVILLE.  1 DEMOCRACY IN AMERICA 285 (REEVE TR.). 

/30/  THE ARGUMENT IS DEVELOPED BY CURTIS, THE TRIAL JUDGE AND THE
JURY, 5 VAND.L.REV.  150 (1952).  FOR EXAMPLE, 

"JURIES RELIEVE THE JUDGE OF THE EMBARRASSMENT OF MAKING THE
NECESSARY EXCEPTIONS.  THEY DO THIS, IT IS TRUE, BY VIOLATING THEIR
OATHS, BUT THIS, I THINK, IS BETTER THAN TEMPTING THE JUDGE TO VIOLATE
HIS OATH OF OFFICE."  ID., AT 157. 

/31/  SEE GENERALLY G. WILLIAMS, THE PROOF OF GUILT 257-263; W.
FORSYTH, HISTORY OF TRIAL BY JURY 261. 

/32/  SEE J. STEPHEN, A. GENERALY VIEW OF THE CRIMINAL LAW OF
ENGLAND 208-209. 

/33/  SEE, E.G., SUNDERLAND, THE INEFFICIENCY OF THE AMERICAN JURY,
13 MICH.L.REV.  302, 205: 

"BUT TIMES HAVE CHANGED, AND THE GOVERNMENT ITSELF IS NOW UNDER THE
ABOLSUTE CONTROL OF THE PEOPLE.  THE JUDGES, IF APPOINTED, ARE SELECTED
BY THE AGENTS OF THE PEOPLE, AND IF ELECTED ARE SELECTED BY THE PEOPLE
DIRECTLY.  THE NEED FOR THE JURY AS A POLITICAL WEAPON OF DEFENSE HAS
BEEN STEADILY DIMINISHING FOR A HUNDRED YEARS, UNTIL NOW THE JURY MUST
FIND SOME OTHER JUSTIFICATION FOR ITS CONTINUANCE." 

/34/  SEE, E.G., SUNDERLAND, SUPRA, AT 303: 

"LIFE WAS SIMPLE WHEN THE JURY SYSTEM WAS YOUNG, BUT WITH THE
STEADILY GROWING COMPLEXITY OF SOCIETY AND SOCIAL PRACTICES, THE FACTS
WHICH ENTER INTO LEGAL CONTROVERSIES HAVE BECOME MUCH MORE COMPLEX." 

/35/  COMPARE GREEN, JURY INJUSTICE, 20 JURID.REV.  132, 133. 

/36/  CF. LUMMUS, CIVIL JURIES AND THE LAW'S DELAY, 12 B.U.L.REV. 
487. 

/37/  SEE, E.G., MCWHORTER, ABOLISH THE JURY, 57 AM.L.REV.  42. 
STATISTICS ON THIS POINT ARE DIFFICULT TO ACCUMULATE FOR THE REASON
THAT THE ONLY WAY TO MEASURE JURY PERFORMANCE IS TO COMPRE THE RESULT
REACHED BY A JURY WITH THE RESULT THE JUDGE WOULD HAVE REACHED IN THE
SAME CASE.  WHILE JUDGE-JURY COMPARISONS HAVE MANY VALUES, IT IS
IMPOSSIBLE TO OBTAIN A STATISTICAL COMPARISON OF ACCURACY IN THIS
MANNER.  SEE GENERALLY H. KALVEN & H. ZEISEL, THE AMERICAN JURY,
PASSIM. 

/38/  E.G., BOSTON, SOME PRACTICAL REMEDIES FOR EXISTING DEFECTS IN
THE ADMINISTRATION OF JUSTICE, 61 U.PA.L.REV.  1, 16: 

"THESE IS NOT ONE IMPORTANT PERSONAL OR PROPERTY INTEREST, OUTSIDE
OF A COURT OF JUSTICE, WHICH ANY OF US WOULD WILLINGLY COMMIT TO THE
FIRST TWELVE MEN THAT COME ALONG THE STREET . . . " 

/39/  E.G., MCWHORTER, SUPRA, AT 46: 

"IT IS THE JURY SYSTEM THAT CONSUMES TIME AT THE PUBLIC EXPENSE IN
GALLERY PLAYING AND SENSATIONAL AND THEATRICAL EXHIBITIONS BEFORE THE
JURY, WHEREBY THE PUBLIC INTEREST AND THE DIGNITY OF THE LAW ARE
SWALLOWED UP IN A MORBID, PARTISAN OR EMOTIONAL PERSONAL INTEREST IN
THE PARTIES IMMEDIATELY CONCERNED." 

/40/  WILLIAMS, SUPRA, AT 302. 

/41/  FOR EXAMPLE, IN THE FEDERAL COURTS THE RIGHT OF THE DEFENDANT
TO WAIVE A JURY WAS IN DOUBT AS RECENTLY AS 1930, WHEN IT WAS
ESTABLISHED IN PATTON V. UNITED STATES, 281 U.S. 276.  IT WAS SETTLED
IN NEW YORK ONLY IN 1957, PEOPLE V. CARROLL, 7 MISC.2D 581, 161
N.Y.S.2D 339, AFF'D, 3 N.Y.2D 686, 148 N.E.2D 875. 

/42/  KALVEN & ZEISEL, SUPRA, 12-32. 

/43/  SEE OPPENHEIM, WAIVER OF TRIAL BY JURY IN CRIMINAL CASES, 25
MICH.L.REV.  695, 728. 

/44/  37 HEN.  8, C. 7. 

/45/  FRANKFURTER & CORCORAN, PETTY FEDERAL OFFENSES AND THE
CONSTITUTIONAL GUARANTY OF TRIAL BY JURY, 39 HARV.L.REV.  917, 928. 
THE SOURCE OF THE AUTHORS' INFORMATION IS R. BURN, JUSTICE OF THE PEACE
(1776). 

/46/ FRANKFURTER & CORCORAN, SUPRA, AT 930-934. 

/47/  SEE, ID., AT 938-942. 

/48/  IBID. 

/49/  FRANKFURTER & CORCORAN, SUPRA, AT 945.  THEY REFER TO THE
BAGRANCY ACT OF 1721, 2 COL.L.(N.Y.)  56. 

/50/  FRANKFURTER & CORCORAN, SUPRA, AT 945. 

/51/  THE EXAMPLE IS TAKEN FROM DAY, PETTY MAGISTRATES' COURTS IN
CONNECTICUT, 17 J.CRIM.L.C.& P.S., 343, 346-347, CITED IN KALVEN &
ZEISEL, SUPRA, AT 17.  THE POINT IS THAT THE "HUGE PROPORTION" OF
CRIMINAL CHARGES FOR WHICH JURY TRIAL HAS NOT BEEN AVAILABLE IN
AMERICAN, E. PUTTKAMMER, ADMINISTRATION OF CRIMINAL LAW 87-88, IS
INCREASED BY THE JUDICIOUS ACTION OF WEARY PROSECUTORS. 

RICHARD B. SOBOL ARGUED THE CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEFS WERE ALVIN J. BRONSTEIN AND ANTHONY G. AMSTERDAM. 

DOROTHY D. WOLBRETTE, ASSISTANT ATTORNEY GENERAL OF LOUISIANA,
ARGUED THE CAUSE FOR APPELLEE.  WITH HER ON THE BRIEF WERE JACK P. F.
GREMILLION, ATTORNEY GENERAL, WILLIAM P. SCHULER, SECOND ASSISTANT
ATTORNEY GENERAL, L. K. CLEMENT, JR., AND JOHN M. CURRIER, ASSISTANT
ATTORNEYS GENERAL, LEANDER H. PEREZ, JR., AND LAWRENCE L. MCNAMARA. 

LOUIS J. KEFKOWITZ, ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST
ASSISTANT ATTORNEY GENERAL, AND MICHAEL H. RAUCH, ASSISTANT ATTORNEY
GENERAL, FILED A BRIEF FOR THE STATE OF NEW YORK, AS AMICUS CURIAE. 
..END :














BLOOM V. ILLINOIS, 391 U.S. 194 


       BLOOM V. ILLINOIS. 

        CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

        NO. 52.  ARGUED JANUARY 16-17, 1968.-- DECIDED MAY 20,

           1968. 


PETITIONER WAS CONVICTED IN ILLINOIS OF CRIMINAL CONTEMPT AND
SENTENCED TO 24 MONTHS' IMPRISONMENT FOR WILLFULLY PETITIONING TO ADMIT
TO PROBATE A WILL FALSELY PREPARED AND EXECUTED AFTER THE PUTATIVE
TESTATOR'S DEATH.  HIS REQUEST FOR A JURY TRIAL WAS REFUSED BY THE
TRIAL COURT.  THE ILLINOIS SUPREME COURT AFFIRMED HIS CONVICTION. 
HELD: 

1.  IN VIEW OF THE HOLDINGS IN UNITED STATES V. BARNETT, 376 U.S.
681 (1964); CHEFF V. SCHNACKENBERG, 384 U.S. 373 (1966), AND DUNCAN V.
LOUISIANA, ANTE, P. 145, THE BROAD RULE THAT ALL CRIMINAL CONTEMPTS CAN
BE CONSTITUTIONALLY TRIED WITHOUT A JURY IS RE-EXAMINED.  PP. 195-198. 

2.  CRIMINAL CONTEMPT IS A CRIME IN EVERY ESSENTIAL RESPECT;
SERIOUS CRIMINAL CONTEMPTS ARE SO NEARLY LIKE OTHER SERIOUS CRIMES THAT
THEY ARE SUBJECT TO THE CONSTITUTION'S JURY TRIAL PROVISIONS AND ONLY
PETTY CONTEMPTS MAY BE TRIED WITHOUT HONORING DEMANDS FOR TRIAL BY
JURY.  THE PROGRESSION OF LEGISLATIVE AND JUDICIAL RESTRICTIONS ON THE
UNFETTERED POWER TO TRY CONTEMPTS SUMMARILY REFLECTS THIS IDENTITY AND
UNDERLINES THE NEED TO EXTEND TRADITIONAL PROTECTIONS TO TRIALS FOR
SERIOUS CONTEMPTS.  PP. 201-210. 

3.  TO THE EXTENT THAT SUMMARY PUNISHMENT FOR CRIMINAL CONTEMPTS
PRESERVES THE DIGNITY, EFFECTIVENESS AND EFFECIENCY OF THE JUDICIAL
PROCESS, THOSE INTERESTS ARE OUTWEIGHED BY THE NEED TO PROVIDE THE
DEFENDANT CHARGED WITH A SERIOUS CRIMINAL CONTEMPT WITH ALL THE
PROCEDURAL PROTECTIONS DEEMED FUNDAMENTAL TO OUR JUDICIAL SYSTEM.  THE
POWER TO COMMIT FOR CIVIL CONTEMPT AND TO PUNISH PETTY CRIMINAL
CONTEMPTS SUMMARILY IS UNAFFECTED.  PP. 208-210. 

4.  WHEN THE LEGISLATURE HAS NOT EXPRESSED A JUDGMENT AS TO THE
SERIOUSNESS OF AN OFFENSE BY FIXING A MAXIMUM PENALTY, THE BEST
EVIDENCE AS TO THE SERIOUSNESS OF THE OFFENSE IS THE PENALTY ACTUALLY
IMPOSED.  ACCORDINGLY, PETITIONER, SENTENCED TO A TWO-YEAR PRISON TERM,
WAS CONSTITUTIONALLY ENTITLED TO A JURY TRIAL.  SEE DUNCAN V.
LOUISIANA, SUPRA.  PP. 210-211. 

35 ILL.2D 255, 220 N.E.2D 475, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED IN AN ILLINOIS STATE COURT OF CRIMINAL
CONTEMPT AND SENTENCED TO IMPRISONMENT FOR 24 MONTHS FOR WILLFULLY
PETITIONING TO ADMIT TO PROBATE A WILL FALSELY PREPARED AND EXECUTED
AFTER THE DEATH OF THE PUTATIVE TESTATOR.  PETITIONER MADE A TIMELY
DEMAND FOR JURY TRIAL WHICH WAS REFUSED.  SINCE IN DUNCAN V. LOUISIANA,
ANTE, P. 145, THE CONSTITUTION WAS HELD TO GUARANTEE THE RIGHT TO JURY
TRIAL IN SERIOUS CRIMINAL CASES IN STATE COURTS, WE MUST NOW DECIDE
WHETHER IT ALSO GUARANTEES THE RIGHT TO JURY TRIAL FOR A CRIMINAL
CONTEMPT PUNISHED BY A TWO-YEAR PRISON TERM. 

        I. 

WHETHER FEDERAL AND STATE COURTS MAY TRY CRIMINAL CONTEMPT CASES
WITHOUT A JURY HAS BEEN A RECURRING QUESTION IN THIS COURT.  ARTICLE
III, SEC. 2, OF THE CONSTITUTION PROVIDES THAT "(THE TRIAL OF ALL
CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY JURY . . . "  THE
SIXTH AMENDMENT STATES THAT "(IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED
SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL
JURY . . . "  THE FIFTH AND FOURTEENTH AMENDMENTS FORBID BOTH THE
FEDERAL GOVERNMENT AND THE STATES FROM DEPRIVING ANY PERSON OF "LIFE,
LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW."  NOTWITHSTANDING
THESE PROVISIONS, UNTIL UNITED STATES V. BARNETT, 376 U.S. 681,
REHEARING DENIED, 377 U.S. 973 (1964), THE COURT CONSISTENTLY UPHELD
THE CONSTITUTIONAL POWER OF THE STATE AND FEDERAL COURTS TO PUNISH ANY
CRIMINAL CONTEMPT WITHOUT A JURY TRIAL.  EILENBECKER V. DISTRICT COURT
OF PLYMOUTH COUNTY, 134 U.S. 31, 36-39 (1890); I.C.C. V. BRIMSON, 154
U.S. 447, 488-489 (1894); IN RE DEBS, 158 U.S. 564, 594-596 (1895);
GOMPERS V. UNITED STATES, 233 U.S. 604, 610-611 (1914); GREEN V. UNITED
STATES, 356 U.S. 165, 183-187 (1958).  /1/  THESE CASES CONSTRUED THE
DUE PROCESS CLAUSE AND THE OTHERWISE INCLUSIVE LANGUAGE OF ARTICLE III
AND THE SIXTH AMENDMENT AS PERMITTING SUMMARY TRIALS IN CONTEMPT CASES
BECAUSE AT COMMON LAW CONTEMPT WAS TRIED WITHOUT A JURY AND BECAUSE THE
POWER OF COURTS TO PUNISH FOR CONTEMPT WITHOUT THE INTERVENTION OF ANY
OTHER AGENCY WAS CONSIDERED ESSENTIAL TO THE PROPER AND EFFECTIVE
FUNCTIONING OF THE COURTS AND TO THE ADMINISTRATION OF JUSTICE. 

UNITED STATES V. BARNETT, SUPRA, SIGNALED A POSSIBLE CHANGE OF
VIEW.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT CERTIFIED TO THIS
COURT THE QUESTION WHETHER THERE WAS A RIGHT TO JURY TRIAL IN AN
IMPENDING CONTEMPT PROCEEDING.  FOLLOWING PRIOR CASES, A FIVE-MAN
MAJORITY HELD THAT THERE WAS NO CONSTITUTIONAL RIGHT TO JURY TRIAL IN
ALL CONTEMPT CASES, CRIMINAL CONTEMPT, INTRINSICALLY AND ASIDE FROM THE
PARTICULAR PENALTY IMPOSED, WAS NOT DEEMED A SERIOUS OFFENSE REQUIRING
THE PROTECTION OF THE CONSTITUTIONAL GUARANTEES OF THE RIGHT TO JURY
TRIAL.  HOWEVER, THE COURT PUT ASIDE AS NOT RAISED IN THE CERTIFICATION
OR FIRMLY SETTLED BY PRIOR CASES, THE ISSUE WHETHER A SEVERE PUNISHMENT
WOULD ITSELF TRIGGER THE RIGHT TO JURY TRIAL AND INDICATED, WITHOUT
EXPLICATION, THAT SOME MEMBERS OF THE COURT WERE OF THE VIEW THAT THE
CONSTITUTION LIMITED THE PUNISHMENT WHICH COULD BE IMPOSED WHERE THE
CONTEMPT WAS TRIED WITHOUT A JURY.  376 U.S.,AT 694-695 AND N. 12. 

TWO YEARS LATER, IN CHEFF V. SCHNACKENBERG, 384 U.S. 373 (1966),
WHICH INVOLVED A PRISON TERM OF SIX MONTHS FOR CONTEMPT OF A FEDERAL
COURT, THE COURT REJECTED THE CLAIM THAT THE CONSTITUTION GUARANTEED A
RIGHT TO JURY TRIAL IN ALL CRIMINAL CONTEMPT CASES.  CONTEMPT DID NOT
"OF ITSELF" WARRANT TREATMENT AS OTHER THAN A PETTY OFFENSE; THE SIX
MONTHS' PUNISHMENT IMPOSED PERMITTED DEALING WITH THE CASE AS A
PROSECUTION FOR "A PETTY OFFENSE, WHICH UNDER OUR DECISIONS DOES NOT
REQUIRE A JURY TRIAL."  384 U.S. 373, 379-380 (1966).  SEE CALLAN V.
WILSON, 127 U.S. 540 (1888); SCHICK V. UNITED STATES, 195 U.S. 65
(1904); DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617 (1937).  IT WAS
NOT NECESSARY IN CHEFF TO CONSIDER WHETHER THE CONSTITUTIONAL
GUARANTEES OF THE RIGHT TO JURY TRIAL APPLIED TO A PROSECUTION FOR A
SERIOUS CONTEMPT.  NOW, HOWEVER, BECAUSE OF OUR HOLDING IN DUNCAN V.
LOUISIANA, SUPRA, THAT THE RIGHT TO JURY TRIAL EXTENDS TO THE STATES,
AND BECAUSE OF BLOOM'S DEMAND FOR A JURY IN THIS CASE, WE MUST ONCE
AGAIN CONFRONT THE BROAD RULE THAT ALL CRIMINAL CONTEMPTS CAN BE
CONSTITUTIONALLY TRIED WITHOUT A JURY.  BARNETT PRESAGED A RE
EXAMINATION OF THIS DOCTRINE AT SOME LATER TIME; THAT TIME HAS NOW
ARRIVED. 

IN PROCEEDING WITH THIS TASK, WE ARE ACUTELY AWARE OF THE
RESPONSIBILITY WE ASSUME IN ENTERTAINING CHALLENGES TO A CONSTITUTIONAL
PRINCIPLE WHICH IS FIRMLY ENTRENCHED AND WHICH HAS BEHIND IT WEIGHTY
AND ANCIENT AUTHORITY.  OUR DELIBERATIONS HAVE CONVINCED US, HOWEVER,
THAT SERIOUS CONTEMPTS ARE SO NEARLY LIKE OTHER SERIOUS CRIMES THAT
THEY ARE SUBJECT TO THE JURY TRIAL PROVISIONS OF THE CONSTITUTION, NOW
BINDING ON THE STATES, AND THAT THE TRADITIONAL RULE IS
CONSTITUTIONALLY INFIRM INSOFAR AS IT PERMITS OTHER THAN PETTY
CONTEMPTS TO BE TRIED WITHOUT HONORING A DEMAND FOR A JURY TRIAL.  WE
ACCEPT THE JUDGMENT OF BARNETT AND CHEFF THAT CRIMINAL CONTEMPT IS A
PETTY OFFENSE UNLESS THE PUNISHMENT MAKES IT A SERIOUS ONE; BUT, IN OUR
VIEW, DISPENSING WITH THE JURY IN THE TRIAL OF CONTEMPTS SUBJECTED TO
SEVERE PUNISHMENT REPRESENTS AN UNACCEPTABLE CONSTRUCTION OF THE
CONSTITUTION, "AN UNCONSTITUTIONAL ASSUMPTION OF POWERS BY THE (COURTS)
WHICH NO LAPSE OF TIME OR RESPECTABLE ARRAY OF OPINION SHOULD MAKE US
HESITATE TO CORRECT."  BLACK & WHITE TAXICAB & TRANSFER CO. V. BROWN &
YELLOW TAXICAB & TRANSFER CO., 276 U.S. 518, 533 (1928) (HOLMES, J.,
DISSENTING).  THE RULE OF OUR PRIOR CASES HAS STRONG, THOUGH SHARPLY
CHALLENGED, HISTORICAL SUPPORT; /2/  BUT NEITHER THIS CIRCUMSTANCE NOR
THE CONSIDERATIONS OF NECESSITY AND EFFICIENCY NORMALLY OFFERED IN
DEFENSE OF THE ESTABLISHED RULE, JUSTIFY DENYING A JURY TRIAL IN
SERIOUS CRIMINAL CONTEMPT CASES.  THE CONSTITUTION GUARANTEES THE RIGHT
TO JURY TRIAL IN STATE COURT PROSECUTIONS FOR CONTEMPT JUST AS IT DOES
FOR OTHER CRIMES. 

        II. 

CRIMINAL CONTEMPT IS A CRIME IN THE ORDINARY SENSE; IT IS A
VIOLATION OF THE LAW, A PUBLIC WRONG WHICH IS PUNISHABLE BY FINE OR
IMPRISONMENT OR BOTH.  IN THE WORDS OF MR. JUSTICE HOLMES: 

"THESE CONTEMPTS ARE INFRACTIONS OF THE LAW, VISITED WITH PUNISHMENT
AS SUCH.  IF SUCH ACTS ARE NOT CRIMINAL, WE ARE IN ERROR AS TO THE MOST
FUNDAMENTAL CHARACTERISTIC OF CRIMES AS THAT WORD HAS BEEN UNDERSTOOD
IN ENGLISH SPEECH."  GOMPERS V. UNITED STATES, 233 U.S. 604, 610
(1914).  /3/ 

CRIMINALLY CONTEMPTUOUS CONDUCT MAY VIOLATE OTHER PROVISIONS OF THE
CRIMINAL LAW; BUT EVEN WHEN THIS IS NOT THE CASE CONVICTIONS FOR
CRIMINAL CONTEMPT ARE INDISTINGUISHABLE FROM ORDINARY CRIMINAL
CONVICTIONS, FOR THEIR IMPACT ON THE INDIVIDUAL DEFENDANT IS THE SAME. 
INDEED, THE ROLE OF CRIMINAL CONTEMPT AND THAT OF MANY ORDINARY
CRIMINAL LAWS SEEM IDENTICAL-- PROTECTION OF THE INSTITUTIONS OF OUR
GOVERNMENT AND ENFORCEMENT OF THEIR MANDATES. 

GIVEN THAT CRIMINAL CONTEMPT IS A CRIME IN EVERY FUNDAMENTAL
RESPECT, THE QUESTION IS WHETHER IT IS A CRIME TO WHICH THE JURY TRIAL
PROVISIONS OF THE CONSTITUTION APPLY.  WE HOLD THAT IT IS, PRIMARILY
BECAUSE IN TERMS OF THOSE CONSIDERATIONS WHICH MAKE THE RIGHT TO JURY
TRIAL FUNDAMENTAL IN CRIMINAL CASES, THERE IS NO SUBSTANTIAL DIFFERENCE
BETWEEN SERIOUS CONTEMPTS AND OTHER SERIOUS CRIMES.  INDEED, IN
CONTEMPT CASES AN EVEN MORE COMPELLING ARGUMENT CAN BE MADE FOR
PROVIDING A RIGHT TO JURY TRIAL AS A PROTECTION AGAINST THE ARBITRARY
EXERCISE OF OFFICIAL POWER.  CONTEMPTUOUS CONDUCT, THOUGH A PUBLIC
WRONG, OFTEN STRIKES AT THE MOST VULNERABLE AND HUMAN QUALITIES OF A
JUDGE'S TEMPERAMENT.  EVEN WHEN THE CONTEMPT IS NOT A DIRECT INSULT TO
THE COURT OR THE JUDGE, IT FREQUENTLY REPRESENTS A REJECTION OF
JUDICIAL AUTHORITY, OR AN INTERFERENCE WITH THE JUDICIAL PROCESS OR
WITH THE DUTIES OF OFFICERS OF THE COURT. 

THE COURT HAS LONG RECOGNIZED THE POTENTIAL FOR ABUSE IN EXERCISING
THE SUMMARY POWER TO IMPRISON FOR CONTEMPT-- IT IS AN "ARBITRARY" POWER
WHICH IS "LIABLE TO ABUSE."  EX PARTE TERRY, 128 U.S. 289, 313 (1888). 
"(ITS EXERCISE IS A DELICATE ONE AND CARE IS NEEDED TO AVOID ARBITRARY
OR OPPRESSIVE CONCLUSIONS."  COOKE V. UNITED STATES, 267 U.S. 517, 539
(1925).  /4/ 

THESE APPREHENSIONS ABOUT THE UNBRIDLED POWER TO PUNISH SUMMARILY
FOR CONTEMPT ARE REFLECTED IN THE MARCH OF EVENTS IN BOTH CONGRESS AND
THE COURTS SINCE OUR CONSTITUTION WAS ADOPTED.  THE FEDERAL COURTS WERE
ESTABLISHED BY THE JUDICIARY ACT OF 1789; SEC. 17 OF THE ACT PROVIDED
THAT THOSE COURTS "SHALL HAVE POWER TO . . . PUNISH BY FINE OR
IMPRISONMENT, AT THE DISCRETION OF SAID COURTS, ALL CONTEMPTS OF
AUTHORITY IN ANY CAUSE OR HEARING BEFORE THE SAME . . . . "  1 STAT.
83.  SEE ANDERSON V. DUNN, 6 WHEAT.  204, 227-228 (1821).  THIS OPEN
ENDED AUTHORITY TO DEAL WITH CONTEMPT, LIMITED ONLY AS TO MODE OF
PUNISHMENT, PROVED UNSATISFACTORY TO CONGRESS.  ABUSES UNDER THE 1789
ACT CULMINATED IN THE UNSUCCESSFUL IMPEACHMENT PROCEEDINGS AGAINST
JAMES PECK, A FEDERAL DISTRICT JUDGE WHO HAD IMPRISONED AND DISBARRED
ONE LAWLESS FOR PUBLISHING A CRITICISM OF ONE OF PECK'S OPINIONS IN A
CASE WHICH WAS ON APPEAL.  THE RESULT WAS DRASTIC CURTAILMENT OF THE
CONTEMPT POWER IN THE ACT OF 1831, 4 STAT. 487.  EX PARTE ROBINSON, 19
WALL.  505, 510-511 (1874); IN RE SAVIN, 131 U.S. 267, 275-276 (1889). 
THAT ACT LIMITED THE CONTEMPT POWER TO MISBEHAVIOR IN THE PRESENCE OF
THE COURT OR SO NEAR THERETO AS TO OBSTRUCT JUSTICE; MISBEHAVIOR OF
COURT OFFICERS IN THEIR OFFICIAL TRANSACTIONS; AND DISOBEDIENCE OF OR
RESISTANCE TO THE LAWFUL WRIT, PROCESS, ORDER, OR DECREE OF THE COURT. 
/5/  THIS MAJOR REVISION OF THE CONTEMPT POWER IN THE FEDERAL SPHERE,
WHICH "NARROWLY CONFINED" AND "SUBSTANTIALLY CURTAILED" THE AUTHORITY
TO PUNISH CONTEMPT SUMMARILY, NYE V. UNITED STATES, 313 U.S. 33, 47-48
(1941), HAS CONTINUED TO THE PRESENT DAY AS THE BASIS FOR THE GENERAL
POWER TO PUNISH CRIMINAL CONTEMPT.  /6/  62 STAT. 701, 18 U.S.C. 401. 

THE COURTS ALSO PROVED SENSITIVE TO THE POTENTIAL FOR ABUSE WHICH
RESIDES IN THE SUMMARY POWER TO PUNISH CONTEMPT.  BEFORE THE 19TH
CENTURY WAS OUT, A DISTINCTION HAD BEEN CAREFULLY DRAWN BETWEEN
CONTEMPTS OCCURRING WITHIN THE VIEW OF THE COURT, FOR WHICH A HEARING
AND FORMAL PRESENTATION OF EVIDENCE WERE DISPENSED WITH, AND ALL OTHER
CONTEMPTS WHERE MORE NORMAL ADVERSARY PROCEDURES WERE REQUIRED.  EX
PARTE TERRY, 128 U.S. 289 (1888); IN RE SAVIN, 131 U.S. 267 (1889). 
LATER, THE COURT COULD SAY "IT IS CERTAIN THAT IN PROCEEDINGS FOR
CRIMINAL CONTEMPT THE DEFENDANT IS PRESUMED TO BE INNOCENT, HE MUST BE
PROVED TO BE GUILTY BEYOND A REASONABLE DOUBT, AND CANNOT BE COMPELLED
TO TESTIFY AGAINST HIMSELF."  GOMPERS V. BUCKS STOVE & RANGE CO., 221
U.S. 418, 444 (1911).  SEE MICHAELSON V. UNITED STATES EX REL. CHICAGO,
ST. P., M. & O.R. CO., 266 U.S. 42, 66 (1924).  CHIEF JUSTICE TAFT
SPEAKING FOR A UNANIMOUS COURT IN COOKE V. UNITED STATES, 267 U.S. 517,
537 (1925), SAID: 

    "DUE PROCESS OF LAW, THEREFORE, IN THE PROSECUTION OF CONTEMPT,

  EXCEPT OF THAT COMMITTED IN OPEN COURT, REQUIRES THAT THE ACCUSED

  SHOULD BE ADVISED OF THE CHARGES AND HAVE A REASONABLE

  OPPORTUNITY TO MEET THEM BY WAY OF DEFENSE OR EXPLANATION.  WE

  THINK THIS INCLUDES THE ASSISTANCE OF COUNSEL, IF REQUESTED, AND

  THE RIGHT TO CALL WITNESSES TO GIVE TESTIMONY, RELEVANT EITHER TO

  THE ISSUE OF COMPLETE EXCULPATION OR IN EXTENUATION OF THE

  OFFENSE AND IN MITIGATION OF THE PENALTY TO BE IMPOSED." 

CF. BLACKMER V. UNITED STATES, 284 U.S. 421, 440 (1932).  IT HAS ALSO
BEEN RECOGNIZED THAT THE DEFENDANT IN CRIMINAL CONTEMPT PROCEEDINGS IS
ENTITLED TO A PUBLIC TRIAL BEFORE AN UNBIASED JUDGE, IN RE OLIVER, 333
U.S. 257 (1948); OFFUTT V. UNITED STATES, 348 U.S. 11 (1954); SEE UNGAR
V. SARAFITE, 376 U.S. 575 (1964); BUT CF. LEVINE V. UNITED STATES, 362
U.S. 610 (1960).  /7/  IN THE FEDERAL SYSTEM MANY OF THE PROCEDURAL
PROTECTIONS AVAILABLE TO CRIMINAL CONTEMNORS ARE SET FORTH IN FED. RULE
CRIM. PROC. 42. 

JUDICIAL CONCERN HAS NOT BEEN LIMITED TO PROCEDURE.  IN TOLEDO
NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402 (1918), THE COURT ENDORSED
A BROAD CONSTRUCTION OF THE LANGUAGE OF THE ACT OF 1831 PERMITTING
SUMMARY TRIAL OF CONTEMPTS "SO NEAR (TO THE COURT) AS TO OBSTRUCT THE
ADMINISTRATION OF JUSTICE."  IT REQUIRED ONLY THAT THE CONDUCT HAVE A
"TENDENCY TO PREVENT AND OBSTRUCT THE DISCHARGE OF JUDICIAL DUTY . . .
. "  ID., AT 419.  SEE CRAIG V. HECHT, 263 U.S. 255, 277 (1923).  THIS
VIEW PROVED ABERRATIONAL AND WAS OVERRULED IN NYE V. UNITED STATES, 313
U.S. 33, 47-52 (1941), WHICH NARROWLY LIMITED THE CONDUCT PROSCRIBED BY
THE 1831 ACT TO 'MISBEHAVIOR IN THE VICINITY OF THE COURT DISRUPTING TO
QUIET AND ORDER OR ACTUALLY INTERRUPTING THE COURT IN THE CONDUCT OF
ITS BUSINESS."  ID., AT 52.  CF. TOLEDO NEWSPAPER CO. V. UNITED STATES,
SUPRA, AT 422 (HOLMES, J., DISSENTING).  THE CONGRESSIONAL PURPOSE TO
FENCE IN THE POWER OF THE FEDERAL COURTS TO PUNISH CONTEMPT SUMMARILY
WAS FURTHER IMPLEMENTED IN CAMMER V. UNITED STATES, 350 U.S. 399, 407
408 (1956).  A LAWYER, THE COURT HELD, "IS NOT THE KIND OF 'OFFICER'
WHO CAN BE SUMMARILY TRIED FOR CONTEMPT UNDER 18 U.S.C. 401(2)."  IN
ANOTHER DEVELOPMENT, THE FIRST AMENDMENT WAS INVOKED TO BAN PUNISHMENT
FOR A BROAD CATEGORY OF ARGUABLY CONTEMPTUOUS OUT-OF-COURT CONDUCT. 
BRIDGES V. CALIFORNIA, 314 U.S. 252 (1941); PENNEKAMP V. FLORIDA, 328
U.S. 331 (1946); CRAIG V. HARNEY, 331 U.S. 367 (1947).  FINALLY, OVER
THE YEARS IN THE FEDERAL SYSTEM THERE HAS BEEN A RECURRING NECESSITY TO
SET ASIDE PUNISHMENTS FOR CRIMINAL CONTEMPT AS EITHER UNAUTHORIZED BY
STATUTE OR TOO HARSH.  E.G., EX PARTE ROBINSON, 19 WALL.  505 (1874);
UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258 (1947); YATES V.
UNITED STATES, 355 U.S. 66 (1957).  /8/     THIS COURSE OF EVENTS
DEMONSTRATES THE UNWISDOM OF VESTING THE JUDICIARY WITH COMPLETELY
UNTRAMMELED POWER TO PUNISH CONTEMPT, AND MAKES CLEAR THE NEED FOR
EFFECTIVE SAFEGUARDS AGAINST THAT POWER'S ABUSE.  PROSECUTIONS FOR
CONTEMPT PLAY A SIGNIFICANT ROLE IN THE PROPER FUNCTIONING OF OUR
JUDICIAL SYSTEM; BUT DESPITE THE IMPORTANT VALUES WHICH THE CONTEMPT
POWER PROTECTS, COURTS AND LEGISLATURES HAVE GRADUALLY ERODED THE POWER
OF JUDGES TO TRY CONTEMPTS OF THEIR OWN AUTHORITY.  IN MODERN TIMES,
PROCEDURES IN CRIMINAL CONTEMPT CASES HAVE COME TO MIRROR THOSE USED IN
ORDINARY CRIMINAL CASES.  OUR EXPERIENCE TEACHES THAT CONVICTIONS FOR
CRIMINAL CONTEMPT, NOT INFREQUENTLY RESULTING IN EXTREMELY SERIOUS
PENALTIES, SEE UNITED STATES V. BARNETT, 376 U.S. 681, 751 (GOLDBERG,
J. DISSENTING), ARE INDISTINGUISHABLE FROM THOSE OBTAINED UNDER
ORDINARY CRIMINAL LAWS.  IF THE RIGHT TO JURY TRIAL IS A FUNDAMENTAL
MATTER IN OTHER CRIMINAL CASES, WHICH WE THINK IT IS, IT MUST ALSO BE
EXTENDED TO CRIMINAL CONTEMPT CASES. 

        III. 

NOR ARE THERE COMPELLING REASONS FOR A CONTRARY RESULT.  AS WE READ
THE EARLIER CASES IN THIS COURT UPHOLDING THE POWER TO TRY CONTEMPTS
WITHOUT A JURY, IT WAS NOT DOUBTED THAT THE SUMMARY POWER WAS SUBJECT
TO ABUSE OR THAT THE RIGHT TO JURY TRIAL WOULD BE AN EFFECTIVE CHECK. 
RATHER, IT SEEMS TO HAVE BEEN THOUGHT THAT SUMMARY POWER WAS NECESSARY
TO PRESERVE THE DIGNITY, INDEPENDENCE, AND EFFECTIVENESS OF THE
JUDICIAL PROCESS-- "TO SUBMIT THE QUESTION OF DISOBEDIENCE TO ANOTHER
TRIBUNAL, BE IT A JURY OR ANOTHER COURT, WOULD OPERATE TO DEPRIVE THE
PROCEEDING OF HALF ITS EFFICIENCY."  IN RE DEBS, 158 U.S. 564, 595
(1895).  IT IS AT THIS OINT THAT WE DO NOT AGREE:  IN OUR JUDGMENT,
WHEN SERIOUS PUNISHMENT FOR CONTEMPT IS CONTEMPLATED, REJECTING A
DEMAND FOR JURY TRIAL CANNOT BE SQUARED WITH THE CONSTITUTION OR
JUSTIFIED BY CONSIDERATIONS OF EFFICIENCY OR THE DESIRABILITY OF
VINDICATING THE AUTHORITY OF THE COURT. 

WE CANNOT SAY THAT THE NEED TO FURTHER RESPECT FOR JUDGES AND COURTS
IS ENTITLED TO MORE CONSIDERATION THAN THE INTEREST OF THE INDIVIDUAL
NOT TO BE SUBJECTED TO SERIOUS CRIMINAL PUNISHMENT WITHOUT THE BENEFIT
OF ALL THE PROCEDURAL PROTECTIONS WORKED OUT CAREFULLY OVER THE YEARS
AND DEEMED FUNDAMENTAL TO OUR SYSTEM OF JUSTICE.  GENUINE RESPECT,
WHICH ALONE CAN LEND TRUE DIGNITY TO OUR JUDICIAL ESTABLISHMENT, WILL
BE ENGENDERED, NOT BY THE FEAR OF UNLIMITED AUTHORITY, BUT BY THE FIRM
ADMINISTRATION OF THE LAW THROUGH THOSE INSTITUTIONALIZED PROCEDURES
WHICH HAVE BEEN WORKED OUT OVER THE CENTURIES. 

WE PLACE LITTLE CREDENCE IN THE NOTION THAT THE INDEPENDENCE OF THE
JUDICIARY HANGS ON THE POWER TO TRY CONTEMPTS SUMMARILY AND ARE NOT
PERSUADED THAT THE ADDITIONAL TIME AND EXPENSE POSSIBLY INVOLVED IN
SUBMITTING SERIOUS CONTEMPTS TO JURIES WILL SERIOUSLY HANDICAP THE
EFFECTIVE FUNCTIONING OF THE COURTS.  WE DO NOT DENY THAT SERIOUS
PUNISHMENT MUST SOMETIMES BE IMPOSED FOR CONTEMPT, BUT WE REJECT THE
CONTENTION THAT SUCH PUNISHMENT MUST BE IMPOSED WITHOUT THE RIGHT TO
JURY TRIAL.  THE GOALS OF DISPATCH, ECONOMY, AND EFFICIENCY ARE
IMPORTANT, BUT THEY ARE AMPLY SERVED BY PRESERVING THE POWER TO COMMIT
FOR CIVIL CONTEMPT AND BY RECOGNIZING THAT MANY CONTEMPTS ARE NOT
SERIOUS CRIMES BUT PETTY OFFENSES NOT WITHIN THE JURY TRIAL PROVISIONS
OF THE CONSTITUTION.  WHEN A SERIOUS CONTEMPT IS AT ISSUE,
CONSIDERATIONS OF EFFICIENCY MUST GIVE WAY TO THE MORE FUNDAMENTAL
INTEREST OF ENSURING THE EVEN-HANDED EXERCISE OF JUDICIAL POWER.  IN
ISOLATED INSTANCES RECALCITRANT OR IRRATIONAL JURIES MAY ACQUIT RATHER
THAN APPLY THE LAW TO THE CASE BEFORE THEM.  OUR SYSTEM HAS WRESTLED
WITH THIS PROBLEM FOR HUNDREDS OF YEARS, HOWEVER, AND IMPORTANT
SAFEGUARDS HAVE BEEN DEVISED TO MINIMIZE MISCARRIAGES OF JUSTICE
THROUGH THE MALFUNCTIONING OF THE JURY SYSTEM.  PERHAPS TO SOME EXTENT
WE SACRIFICE EFFICIENCY, EXPEDITION, AND ECONOMY, BUT THE CHOICE IN
FAVOR OF JURY TRIAL HAS BEEN MADE, AND RETAINED, IN THE CONSTITUTION. 
WE SEE NO SOUND REASON IN LOGIC OR POLICY NOT TO APPLY IT IN THE AREA
OF CRIMINAL CONTEMPT. 

SOME SPECIAL MENTION OF CONTEMPTS IN THE PRESENCE OF THE JUDGE IS
WARRANTED.  RULE 42(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
PROVIDES THAT "(A) CRIMINAL CONTEMPT MAY BE PUNISHED SUMMARILY IF THE
JUDGES CERTIFIES THAT HE AW OR HEARD THE CONDUCT CONSTITUTING THE
CONTEMPT AND THAT IT WAS COMMITTED IN THE ACTUAL PRESENCE OF THE
COURT."  THIS RULE REFLECTS THE COMMON-LAW RULE WHICH IS WIDELY IF NOT
UNIFORMLY FOLLOWED IN THE STATES.  ALTHOUGH RULE 42(A) IS BASED IN PART
ON THE PREMISE THAT IT IS NOT NECESSARY SPECIALLY TO PRESENT THE FACTS
OF A CONTEMPT WHICH OCCURRED IN THE VERY PRESENCE OF THE JUDGE, IT ALSO
RESTS ON THE NEED TO MAINTAIN ORDER AND A DELIBERATIVE ATMOSPHERE IN
THE COURTROOM.  THE POWER OF A JUDGE TO QUELL DISTURBANCE CANNOT ATTEND
UPON THE IMPANELING OF A JURY.  THERE IS, THEREFORE, A STRONG
TEMPTATION TO MAKE EXCEPTION TO THE RULE WE ESTABLISH TODAY FOR
DISORDERS IN THE COURTROOM.  WE ARE CONVINCED, HOWEVER, THAT NO SUCH
SPECIAL RULE IS NEEDED.  IT IS OLD LAW THAT THE GUARANTEES OF JURY
TRIAL FOUND IN ARTICLE III AND THE SIXTH AMENDMENT DO NOT APPLY TO
PETTY OFFENSES.  ONLY TODAY WE HAVE REAFFIRMED THAT POSITION.  DUNCAN
V. LOUISIANA, SUPRA, AT 159-162.  BY DECIDING TO TREAT CRIMINAL
CONTEMPT LIKE OTHER CRIMES INSOFAR AS THE RIGHT TO JURY TRIAL IS
CONCERNED, WE SIMILARLY PLACE IT UNDER THE RULE THAT PETTY CRIMES NEED
NOT BE TRIED TO A JURY. 

        IV. 

PETITIONER BLOOM WAS HELD IN CONTEMPT OF COURT FOR FILING A SPURIOUS
WILL FOR PROBATE.  AT HIS TRIAL IT WAS ESTABLISHED THAT THE PUTATIVE
TESTATOR DIED ON JULY 6, 1964, AND THAT AFTER THAT DATE PAULINE OWENS,
A PRACTICAL NURSE FOR THE DECEDENT, ENGAGED BLOOM TO DRAW AND EXECUTE A
WILL IN THE DECEDENT'S NAME.  THE WILL WAS DATED JUNE 21, 1964.  BLOOM
KNEW THE WILL WAS FALSE WHEN HE PRESENTED IT FOR ADMISSION IN THE
PROBATE DIVISION OF THE CIRCUIT COURT OF COOK COUNTY.  THE STATE'S
ATTORNEY OF THAT COUNTY FILED A COMPLAINT CHARGING BLOOM WITH CONTEMPT
OF COURT.  AT TRIAL PETITIONER'S TIMELY MOTION FOR A JURY TRIAL WAS
DENIED.  PETITIONER WAS FOUND GUILTY OF CRIMINAL CONTEMPT AND SENTENCED
TO IMPRISONMENT FOR 24 MONTHS.  ON DIRECT APPEAL TO THE ILLINOIS
SUPREME COURT, HIS CONVICTION WAS AFFIRMED.  THAT COURT HELD THAT
NEITHER STATE LAW NOR THE FEDERAL CONSTITUTION PROVIDED A RIGHT TO JURY
TRIAL IN CRIMINAL CONTEMPT PROCEEDINGS.  35 ILL.2D 255, 220 N.E.2D 475
(1966).  WE GRANTED CERTIORARI, 386 U.S. 1003 (1967). 

PETITIONER BLOOM CONTENDS THAT THE CONDUCT FOR WHICH HE WAS
CONVICTED OF CRIMINAL CONTEMPT CONSTITUTED THE CRIME OF FORGERY UNDER
ILL. REV. STAT., C. 38, SEC. 17-3.  DEFENDANTS TRIED UNDER THAT STATUTE
ENJOY A RIGHT TO JURY TRIAL AND FACE A POSSIBLE SENTENCE OF ONE TO 14
YEARS, A FINE NOT TO EXCEED $1,000 OR BOTH.  PETITIONER WAS NOT TRIED
UNDER THIS STATUTE, BUT RATHER WAS CONVICTED OF CRIMINAL CONTEMPT. 
UNDER ILLINOIS LAW NO MAXIMUM PUNISHMENT IS PROVIDED FOR CONVICTIONS
FOR CRIMINAL CONTEMPT.  PEOPLE V. STOLLAR, 31 ILL.2D 154, 201 N.E.2D 97
(1964).  IN DUNCAN WE HAVE SAID THAT WE NEED NOT SETTLE "THE EXACT
LOCATION OF THE LINE BETWEEN PETTY OFFENSES AND SERIOUS CRIMES" BUT
THAT "A CRIME PUNISHABLE BY TWO YEARS IN PRISON IS . . . A SERIOUS
CRIME AND NOT A PETTY OFFENSE."  SUPRA, AT 161, 162.  BLOOM WAS
SENTENCED TO IMPRISONMENT FOR TWO YEARS.  OUR ANALYSIS OF BARNETT,
SUPRA, AND CHEFF V. SCHNACKENBERG, 384 U.S. 373, MAKES IT CLEAR THAT
CRIMINAL CONTEMPT IS NOT A CRIME OF THE SORT THAT REQUIRES THE RIGHT TO
JURY TRIAL REGARDLESS OF THE PENALTY INVOLVED.  UNDER THE RULE IN
CHEFF, WHEN THE LEGISLATURE HAS NOT EXPRESSED A JUDGMENT AS TO THE
SERIOUSNESS OF AN OFFENSE BY FIXING A MAXIMUM PENALTY WHICH MAY BE
IMPOSED, WE ARE TO LOOK TO THE PENALTY ACTUALLY IMPOSED AS THE BEST
EVIDENCE OF THE SERIOUSNESS OF THE OFFENSE.  SEE DUNCAN, SUPRA, AT 162,
N. 35.  UNDER THIS RULE IT IS CLEAR THAT BLOOM WAS ENTITLED TO THE
RIGHT TO TRIAL BY JURY, AND IT WAS CONSTITUTIONAL ERROR TO DENY HIM
THAT RIGHT.  ACCORDINGLY, WE REVERSE AND REMAND FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  MANY MORE CASES HAVE SUPPORTED THE RULE THAT COURTS MAY PUNISH
CRIMINAL CONTEMPT SUMMARILY, OR ACCEPTED THAT RULE WITHOUT QUESTION. 
SEE CASES COLLECTED IN GREEN V. UNITED STATES, 356 U.S. 165, 191, N. 2
(1958) (CONCURRING OPINION); UNITED STATES V. BARNETT, 376 U.S. 681,
694, N. 12 (1964).  THE LIST OF THE JUSTICES OF THIS COURT WHO HAVE
APPARENTLY SUBSCRIBED TO THIS VIEW IS LONG.  SEE GREEN V. UNITED
STATES, SUPRA, AT 192. 

THE ARGUMENT THAT THE POWER TO PUNISH CONTEMPT WAS AN INHERENT POWER
OF THE COURTS NOT SUBJECT TO REGULATION BY CONGRESS WAS REJECTED IN
MICHAELSON V. UNITED STATES EX REL. CHICAGO, ST. P., M. & O.R. CO., 266
U.S. 42, 65-67 (1924), WHICH UPHELD THE MAXIMUM SENTENCE AND JURY TRIAL
PROVISIONS OF THE CLAYTON ACT.  CF. LARREMORE, CONSTITUTIONAL
REGULATION OF CONTEMPT OF COURT, 13 HARV.L.REV.  615 (1900). 

/2/  BLACKSTONE'S DESCRIPTION OF THE COMMON-LAW PRACTICE IN CONTEMPT
CASES APPEARS IN 4 COMMENTARIES ON THE LAWS OF ENGLAND 286-287: 

"THE PROCESS OF ATTACHMENT FOR THESE AND THE LIKE CONTEMPTS MUST
NECESSARILY BE AS ANCIENT AS THE LAWS THEMSELVES; FOR LAWS WITHOUT A
COMPETENT AUTHORITY TO SECURE THEIR ADMINISTRATION FROM DISOBEDIENCE
AND CONTEMPT WOULD BE VAIN AND NUGATORY.  A POWER, THEREFORE, IN THE
SUPREME COURTS OF JUSTICE, TO SUPPRESS SUCH CONTEMPTS BY AN IMMEDIATE
ATTACHMENT OF THE OFFENDER RESULTS FROM THE FIRST PRINCIPLES OF
JUDICIAL ESTABLISHMENTS, AND MUST BE AN INSEPARABLE ATTENDANT UPON
EVERY SUPERIOR TRIBUNAL. 

        .          .          .          . 

"IF THE CONTEMPT BE COMMITTED IN THE FACE OF THE COURT, THE OFFENDER
MAY BE INSTANTLY APPREHENDED AND IMPRISONED, AT THE DISCRETION OF THE
JUDGES, WITHOUT ANY FURTHER PROOF OR EXAMINATION.  BUT IN MATTERS THAT
ARISE AT A DISTANCE, AND OF WHICH THE COURT CANNOT HAVE SO PERFECT A
KNOWLEDGE, UNLESS BY THE CONFESSION OF THE PARTY OR THE TESTIMONY OF
OTHERS, IF THE JUDGES UPON AFFIDAVIT SEE SUFFICIENT GROUND TO SUSPECT
THAT A CONTEMPT HAS BEEN COMMITTED, THEY EITHER MAKE A RULE ON THE
SUSPECTED PARTY TO SHOW CAUSE WHY AN ATTACHMENT SHOULD NOT ISSUE
AGAINST HIM, OR, IN VERY FLAGRANT INSTANCES OF CONTEMPT, THE ATTACHMENT
ISSUES IN THE FIRST INSTANCE; AS IT ALSO DOES IF NO SUFFICIENT CAUSE BE
SHOWN TO DISCHARGE; AND THEREUPON THE COURT CONFIRMS AND MAKES ABSOLUTE
THE ORIGINAL RULE."  AND SEE ID., AT 280.  A SIMILAR ACCOUNT IS
CONTAINED IN 2 W.HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 4, 141
(2D ED. 1724). 

OF COURSE, "BLACKSTONE'S COMMENTARIES ARE ACCEPTED AS THE MOST
SATISFACTORY EXPOSITION OF THE COMMON LAW OF ENGLAND.  . . .
(UNDOUBTEDLY THE FRAMERS OF THE CONSTITUTION WERE FAMILIAR WITH IT." 
SCHICK V. UNITED STATES, 195 U.S. 65, 69 (1904). 

BLACKSTONE, HOWEVER, WAS ACUTELY AWARE THAT THIS PRACTICE WAS A
SIGNIFICANT DEPARTURE FROM ORDINARY PRINCIPLES:  "IT CANNOT HAVE
ESCAPED THE ATTENTION OF THE READER THAT THIS METHOD OF MAKING THE
DEFENDANT ANSWER UPON OATH TO A CRIMINAL CHARGE IS NOT AGREEABLE TO THE
GENIUS OF THE COMMON LAW IN ANY OTHER INSTANCE.  . . . "  4 BLACKSTONE,
SUPRA, AT 287. 

THE UNALLOYED DOCTRINE THAT BY "IMMEMORIAL USAGE" ALL CRIMINAL
CONTEMPTS COULD BE TRIED SUMMARILY SEEMS TO DERIVE FROM MR. JUSTICE
(LATER CHIEF JUSTICE) WILMOT'S UNDELIVERED OPINION IN THE KING V. ALMON
(1765), FIRST BROUGHT TO PUBLIC LIGHT BY THE POSTHUMOUS PUBLICATION OF
HIS PAPERS, WILMOT, NOTES 243 (1802), REPRINTED IN 97 ENG.REP.  94. 
WILMOT'S OPINION APPEARS TO HAVE BEEN THE SOURCE OF BLACKSTONE'S VIEW,
BUT DID NOT BECOME AN AUTHORITATIVE PART OF THE LAW OF ENGLAND UNTIL
REX V. CLEMENT, 4 BARN.& ALD.  218, 233, 106 ENG.REP.  918, 923 (K.B.
1821).  CF. ROACH V. GARVAN, 2 ATK.  469, 26 ENG.REP.  683 (CH. 1742). 
SEE DISCUSSION IN 8 HOW.ST.TR. 14, 22-23, 49-59, AND THE SUBSEQUENT
CIVIL ACTION, BURDETT V. ABBOT, 14 EAST 1, 138, 104 ENG.REP.  501, 554
(K.B. 1811); 4 TAUNT.  401, 128 ENG.REP.  384 (EX. 1812); 5 DOW 165,
202, 3 ENG.REP.  1289, 1302 (H.L. 1817).  THE HISTORICAL AUTHENTICITY
OF THIS VIEW HAS BEEN VIGOROUSLY CHALLENGED, INITIALLY BY SOLLY-FLOOD,
THE STORY OF PRINCE HENRY OF MONMOUTH AND CHIEF-JUSTICE GASCOIGN, 3
TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY (N.S.)  47, 61-64, 147-150
(1886).  THIS LED TO THE MASSIVE REAPPRAISAL OF THE CONTEMPT POWER
UNDERTAKEN BY SIR JOHN FOX:  THE KING V. ALMON, PTS.  1 & 2, 24
L.Q.REV.  184, 266 (1908); THE SUMMARY PROCESS TO PUNISH CONTEMPT,
PTS.  1 & 2, 25 L.Q.REV.  238, 354 (1909); ECCENTRICITIES OF THE LAW OF
CONTEMPT OF COURT, 36 L.Q.REV.  394 (1920); THE NATURE OF CONTEMPT OF
COURT, 37 L.Q.REV.  191 (1921); THE PRACTICE IN CONTEMPT OF COURT
CASES, 38 L.Q.REV.  185 (1922); THE WRIT OF ATTACHMENT, 40 L.Q.REV.  43
(1924); J. FOX, THE HISTORY OF CONTEMPT OF COURT (1927).  ON CONTEMPT
GENERALLY, SEE R. GOLDFARB, THE CONTEMPT POWER (1963). 

LEARNED WRITERS HAVE INTERPRETED FOX'S WORK AS SHOWING THAT UNTIL
THE LATE 17TH OR EARLY 18TH CENTURIES, APART FROM THE EXTRAORDINARY
PROCEEDINGS OF THE STAR CHAMBER, ENGLISH COURTS NEITHER HAD, NOR
CLAIMED, POWER TO PUNISH CONTEMPTS, WHETHER IN OR OUT OF COURT, BY
SUMMARY PROCESS.  FRANKFURTER & LANDIS, POWER OF CONGRESS OVER
PROCEDURE IN CRIMINAL CONTEMPTS IN "INFERIOR" FEDERAL COURTS-- A STUDY
IN SEPARATION OF POWERS, 37 HARV.L.REV.  1010, 1042-1052 (1924).  CF.
J. OSWALD, CONTEMPT OF COURT 3, N. (G) (ROBERTSON ED., 1910).  FOX'S
OWN APPRAISAL OF THE EVIDENCE, HOWEVER, SEEMS TO HAVE BEEN THAT PRIOR
TO THE 18TH CENTURY THERE PROBABLY WAS NO VALID BASIS FOR SUMMARY
PUNISHMENT OF A LIBEL ON THE COURT BY A STRANGER TO THE PROCEEDINGS,
BUT THAT SUMMARY PUNISHMENT FOR CONTEMPTS OUTSIDE THE COURT CONSISTING
IN RESISTANCE TO A LAWFUL PROCESS OR ORDER OF THE COURT, OR
CONTUMACIOUS BEHAVIOR BY AN OFFICER OF THE COURT, WAS PROBABLY
PERMISSIBLE.  J. FOX, THE HISTORY OF CONTEMPT OF COURT 4, 49-50, 98
100, 108-110, 208-209 (1927); FOX, THE SUMMARY PROCESS TO PUNISH
CONTEMPT, PT. 1, 25 L.Q.REV.  238, 244-246 (1909).  ALTHOUGH JURY
TRIALS HAD BEEN PROVIDED IN SOME INSTANCES OF CONTEMPT IN THE FACE OF
THE COURT, FOX DOES NOT SEEM TO HAVE QUESTIONED THAT SUCH CONTEMPTS
COULD BE PUNISHED SUMMARILY.  J. FOX, THE HISTORY OF CONTEMPT OF COURT
50 (1927). 

WE DO NOT FIND THE HISTORY OF CRIMINAL CONTEMPT SUFFICIENTLY SIMPLE
OR UNAMBIGUOUS TO REST REJECTION OF OUR PRIOR DECISIONS ENTIRELY ON
HISTORICAL GROUNDS, PARTICULARLY SINCE THE COURT HAS BEEN AWARE OF
SOLLY-FLOOD'S AND FOX'S WORK FOR MANY YEARS.  SEE GOMPERS V. UNITED
STATES, 233 U.S. 604, 611 (1914); MICHAELSON V. UNITED STATES EX REL.
CHICAGO, ST. P., M. & O.R. CO., 266 U.S. 42, 66-67 (1924); GREEN V.
UNITED STATES, 356 U.S. 165, 185, N. 18 (1958).  IN ANY EVENT, THE
ULTIMATE QUESTION IS NOT WHETHER THE TRADITIONAL DOCTRINE IS
HISTORICALLY CORRECT BUT WHETHER THE RULE THAT CRIMINAL CONTEMPTS ARE
NEVER ENTITLED TO A JURY TRIAL IS A NECESSARY OR AN ACCEPTABLE
CONSTRUCTION OF THE CONSTITUTION.  CF. THOMPSON V. UTAH, 170 U.S. 343,
350 (1898). 

/3/  SEE ALSO NEW ORLEANS V. THE STEAMSHIP CO., 20 WALL.  387, 392
(1874) ("(CONTEMPT OF COURT IS A SPECIFIC CRIMINAL OFFENCE"); O'NEAL V.
UNITED STATES, 190 U.S. 36, 38 (1903) (AN ADJUDICATION FOR CONTEMPT IS
"IN EFFECT A JUDGMENT IN A CRIMINAL CASE"); BESSETTE V. W. B. CONKEY
CO., 194 U.S. 324, 336 (1904) (THAT CRIMINAL CONTEMPT PROCEEDINGS ARE
"CRIMINAL IN THEIR NATURE HAS BEEN CONSTANTLY AFFIRMED"); MICHAELSON V.
UNITED STATES EX REL. CHICAGO, ST. P., M. & O.R. CO., 266 U.S. 42, 66
(1924) ("(THE FUNDAMENTAL CHARACTERISTICS OF BOTH (CRIMES AND CRIMINAL
CONTEMPTS) ARE THE SAME"); GREEN V. UNITED STATES, 356 U.S. 165, 201
(1958) (BLACK, J., DISSENTING) ("CRIMINAL CONTEMPT IS MANIFESTLY A
CRIME BY EVERY RELEVANT TEST OF REASON OR HISTORY").  THE COURT ALSO
HELD IN BESSETTE, SUPRA, AT 335, THAT CRIMINAL CONTEMPT "CANNOT BE
CONSIDERED AS AN INFAMOUS CRIME." 

/4/  "THAT CONTEMPT POWER OVER COUNSEL, SUMMARY OR OTHERWISE, IS
CAPABLE OF ABUSE IS CERTAIN.  MEN WHO MAKE THEIR WAY TO THE BENCH
SOMETIMES EXHIBIT VANITY, IRASCIBILITY, NARROWNESS, ARROGANCE, AND
OTHER WEAKNESSES TO WHICH HUMAN FLESH IS HEIR."  SACHER V. UNITED
STATES, 343 U.S. 1, 12 (1952).  SEE ALSO EX PARTE HUDGINGS, 249 U.S.
378 (1919); NYE V. UNITED STATES, 313 U.S. 33 (1941); CAMMER V. UNITED
STATES, 350 U.S. 399 (1956). 

/5/  SECTION 1 OF THE ACT OF 1831 STATED: 

"THAT THE POWER OF THE SEVERAL COURTS OF THE UNITED STATES TO ISSUE
ATTACHMENTS AND INFLICT SUMMARY PUNISHMENTS FOR CONTEMPTS OF COURT,
SHALL NOT BE CONSTRUED TO EXTEND TO ANY CASES EXCEPT THE MISBEHAVIOUR
OF ANY PERSON OR PERSONS IN THE PRESENCE OF THE SAID COURTS, OR SO NEAR
THERETO AS TO OBSTRUCT THE ADMINISTRATION OF JUSTICE, THE MISBEHAVIOUR
OF ANY OF THE OFFICERS OF THE SAID COURTS IN THEIR OFFICIAL
TRANSACTIONS, AND THE DISOBEDIENCE OR RESISTANCE BY ANY OFFICER OF THE
SAID COURTS, PARTY, JUROR, WITNESS, OR ANY OTHER PERSON OR PERSONS, TO
ANY LAWFUL WRIT, PROCESS, ORDER, RULE, DECREE, OR COMMAND OF THE SAID
COURTS."  FOX CONCLUDED THAT THE 1831 ACT WAS IN ACCORD WITH THE
GENERAL COMMON LAW OF ENGLAND.  SEE J. FOX, THE HISTORY OF CONTEMPT OF
COURT 208 (1927).  SECTION 2 OF THE ACT PROVIDED FOR PROSECUTION BY THE
REGULAR CRIMINAL PROCEDURES OF THOSE GUILTY OF OBSTRUCTION OF JUSTICE. 
SEE GENERALLY NELLES & KING, PTS.  1 & 2, CONTEMPT BY PUBLICATION IN
THE UNITED STATES, 28 COL.L.REV.  401, 525 (1928). 

/6/  AT A LATER DATE, WHEN PASSING THE CLAYTON ACT, CONGRESS FOCUSED
ITS ATTENTION ON CONDUCT WHICH WAS NOT ONLY CRIMINALLY CONTEMPTUOUS BUT
WHICH ALSO CONSTITUTED OTHER CRIMES UNDER FEDERAL OR STATE LAW. 
CONTEMPTS OF THIS NATURE, UNLESS COMMITTED IN THE PRESENCE OF THE COURT
OR SO NEAR THERETO AS TO OBSTRUCT JUSTICE, OR UNLESS THEY INVOLVED
DISOBEDIENCE TO A COURT WRIT, PROCESS, ORDER, OR DECREE IN A CASE
BROUGHT BY THE UNITED STATES, WERE REQUIRED TO BE TRIED TO A JURY, AND
THE POSSIBLE PUNISHMENT WAS LIMITED TO SIX MONTHS, A FINE OF $1,000, OR
BOTH.  38 STAT. 738, SEC. 21, NOW 18 U.S.C. 402.  CIRCUMSCRIPTION OF
THE CONTEMPT POWER WAS CARRIED FURTHER IN THE NORRIS-LAGUARDIA ACT,
WHICH EXTENDED THE RIGHT TO JURY TRIAL TO CONTEMPT CASES ARISING OUT OF
INJUNCTIONS ISSUED IN LABOR DISPUTES.  47 STAT. 72, SEC. 11, NOW 18
U.S.C. 3692.  THE CIVIL RIGHTS ACT OF 1957, 71 STAT. 638, SEC. 151, 42
U.S.C. 1995, PROVIDES A RIGHT TO A DE NOVO TRIAL BY JURY TO ALL
CRIMINAL CONTEMNORS CONVICTED IN CASES ARISING UNDER THE ACT WHO ARE
FINED IN EXCESS OF $300 OR SENTENCED TO IMPRISONMENT FOR MORE THAN 45
DAYS, EXCEPTION BEING MADE FOR CONTEMPTS COMMITTED IN THE PRESENCE OF
THE COURT OR SO NEAR THERETO AS TO OBSTRUCT JUSTICE, AND MISBEHAVIOR,
MISCONDUCT, OR DISOBEDIENCE OF ANY OFFICER OF THE COURT.  THE CIVIL
RIGHTS ACT OF 1964, 78 STAT. 268, SEC. 1101, 42 U.S.C. 2000H, PROVIDES
A RIGHT TO JURY TRIAL IN ALL PROCEEDINGS FOR CRIMINAL CONTEMPT ARISING
UNDER THE ACT, AND LIMITS PUNISHMENT TO A FINE OF $1,000 OR
IMPRISONMENT FOR SIX MONTHS.  AGAIN EXCEPTION IS MADE FOR CONTEMPTS
COMMITTED IN THE PRESENCE OF THE COURT, OR SO NEAR THERETO AS TO
OBSTRUCT JUSTICE, AND FOR THE MISBEHAVIOR, MISCONDUCT, OR DISOBEDIENCE
OF COURT OFFICERS.  PROOF OF CRIMINAL MENS REA IS SPECIFICALLY
REQUIRED.  SEE GOLDFARB & KURZMAN, CIVIL RIGHTS V. CIVIL LIBERTIES:
THE JURY TRIAL ISSUE, 12 U.C.L.A.L.REV.  486, 496-506 (1965). 

/7/  IT HAS ALSO BEEN HELD THAT A DEFENDANT IN CRIMINAL CONTEMPT
PROCEEDINGS IS ELIGIBLE FOR EXECUTIVE PARDON, EX PARTE GROSSMAN, 267
U.S.87 (1925), AND ENTITLED TO THE PROTECTION OF THE STATUTE OF
LIMITATIONS, GOMPERS V. UNITED STATES, 233 U.S. 604, 611-613 (1914);
PENDERGAST V. UNITED STATES, 317 U.S. 412 (1943). 

/8/  LIMITATIONS ON THE MAXIMUM PENALTIES FOR CRIMINAL CONTEMPT ARE
COMMON IN THE STATES.  ACCORDING TO NOTE, CONSTITUTIONAL LAW:  THE
SUPREME COURT CONSTRUCTS A LIMITED RIGHT TO TRIAL BY JURY FOR FEDERAL
CRIMINAL CONTEMNORS, 1967 DUKE L.J. 632, 654, N. 84, IN 26 STATES THE
MAXIMUM PENALTY THAT CAN BE IMPOSED IN THE ABSENCE OF A JURY TRIAL IS
SIX MONTHS OR LESS, IN THREE STATES A JURY TRIAL MUST BE PROVIDED UPON
DEMAND OF THE DEFENDANT, IN THREE OTHER STATES THE MAXIMUM PENALTY
CANNOT EXCEED ONE YEAR (THIS GROUP OF STATES INCLUDES ILLINOIS,
HOWEVER, WHICH, AS THE PRESENT CASE DEMONSTRATES, HAS NO SUCH
LIMITATION), IN 15 STATES THERE IS EITHER NO LIMITATION UPON THE
MAXIMUM PENALTY WHICH MAY BE IMPOSED, OR ELSE THAT MAXIMUM EXCEEDS ONE
YEAR, AND FINALLY, IN THREE STATES, WHILE THERE ARE STATUTES RELATING
TO PARTICULAR KINDS OF CONTEMPT, THERE ARE NO GENERAL CONTEMPT
PROVISIONS.  INDEPENDENT EXAMINATION SUGGESTS THAT THE AVAILABLE
MATERIALS CONCERNING THE LAW OF CONTEMPT IN SOME STATES ARE SUCH THAT
PRECISE COMPUTATION IS DIFFICULT.  IT IS CLEAR, HOWEVER, THAT
PUNISHMENT FOR CONTEMPT IS LIMITED TO ONE YEAR OR LESS IN OVER HALF THE
STATES. 

MOST OTHER WESTERN COUNTRIES SEEM TO BE HIGHLY RESTRICTIVE OF THE
LATITUDE GIVEN JUDGES TO TRY THEIR OWN CONTEMPTS WITHOUT A JURY.  SEE
JANN, CONTEMPT OF COURT IN WESTERN GERMANY, 8 AM.U.L.REV.  34 (1959);
BIGELOW, CONTEMPT OF COURT, 1 CRIM.L.Q. 475 (1959); PEKELIS, LEGAL
TECHNIQUES AND POLITICAL IDEOLOGIES:  A COMPARATIVE STUDY, 41
MICH.L.REV.  665 (1943).  BY CONTRAST, THERE WAS NO RIGHT OF APPEAL
AGAINST A CONVICTION FOR CRIMINAL CONTEMPT IN ENGLAND UNTIL THE
ADMINISTRATION OF JUSTICE ACT, 1960, 8 & 9 ELIZ.  2, C. 65.  SEE
HARNON, CIVIL AND CRIMINAL CONTEMPTS OF COURT, 25 MOD.L.REV.  179
(1962). 

MR. JUSTICE FORTAS, CONCURRING.  /1A/ 

I JOIN THE JUDGMENTS AND OPINIONS OF THE COURT IN THESE CASES
BECAUSE I AGREE THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES THAT THE STATES ACCORD THE RIGHT TO JURY TRIAL IN PROSECUTIONS
FOR OFFENSES THAT ARE NOT PETTY.  A POWERFUL REASON FOR REACHING THIS
CONCLUSION IS THAT THE SIXTH AMENDMENT TO THE CONSTITUTION GUARANTEES
THE RIGHT TO JURY TRIAL IN FEDERAL PROSECUTIONS FOR SUCH OFFENSES.  IT
IS, OF COURSE, LOGICAL AND REASONABLE THAT IN SEEKING, FROM TIME TO
TIME, THE CONTENT OF "DUE PROCESS OF LAW," WE SHOULD LOOK TO AND BE
GUIDED BY THE GREAT BILL OF RIGHTS IN OUR CONSTITUTION.  CONSIDERATIONS
OF THE PRACTICE OF THE FORUM STATES, OF THE STATES GENERALLY, AND OF
THE HISTORY AND OFFICE OF JURY TRIALS ARE ALSO RELEVANT TO OUR TASK.  I
BELIEVE, AS MY BROTHER WHITE'S OPINION FOR THE COURT IN DUNCAN V.
LOUISIANA PERSUASIVELY ARGUES, THAT THE RIGHT TO JURY TRIAL IN MAJOR
PROSECUTIONS, STATE AS WELL AS FEDERAL, IS SO FUNDAMENTAL TO THE
PROTECTION OF JUSTICE AND LIBERTY THAT "DUE PROCESS OF LAW" CANNOT BE
ACCORDED WITHOUT IT. 

IT IS THE PROGRESSION OF HISTORY, AND ESPECIALLY THE DEEPENING
REALIZATION OF THE SUBSTANCE AND PROCEDURES THAT JUSTICE AND THE
DEMANDS OF HUMAN DIGNITY REQUIRE, WHICH HAS CAUSED THIS COURT TO INVEST
THE COMMAND OF "DUE PROCESS OF LAW" WITH INCREASINGLY GREATER
SUBSTANCE.  THE MAJORITY LISTS OUTSTANDING STATIONS IN THIS
PROGRESSION, ANTE, AT 147-148.  THIS COURT HAS NOT BEEN ALONE IN ITS
PROGRESSIVE RECOGNITION OF THE CONTENT OF THE GREAT PHRASE WHICH MY
BROTHER WHITE DESCRIBES AS "SPACIOUS LANGUAGE" AND LEARNED HAND CALLED
A "MAJESTIC GENERALITY."  THE CONGRESS, STATE COURTS, AND STATE
LEGISLATURES HAVE MOVED FORWARD WITH THE ADVANCING CONCEPTION OF HUMAN
RIGHTS IN ACCORDING PROCEDURAL AS WELL AS SUBSTANTIVE RIGHTS TO
INDIVIDUALS ACCUSED OF CONFLICT WITH THE CRIMINAL LAWS.  /1/ 

BUT ALTHOUGH I AGREE WITH THE DECISION OF THE COURT, I CANNOT AGREE
WITH THE IMPLICATION, SEE ANTE, AT 158-159, N. 30, THAT THE TAIL MUST
GO WITH THE HIDE:  THAT WHEN WE HOLD, INFLUENCED BY THE SIXTH
AMENDMENT, THAT "DUE PROCESS" REQUIRES THAT THE STATES ACCORD THE RIGHT
OF JURY TRIAL FOR ALL BUT PETTY OFFENSES, WE AUTOMATICALLY IMPORT ALL
OF THE ANCILLARY RULES WHICH HAVE BEEN OR MAY HEREAFTER BE DEVELOPED
INCIDENTAL TO THE RIGHT TO JURY TRIAL IN THE FEDERAL COURTS.  I SEE NO
REASON WHATEVER, FOR EXAMPLE, TO ASSUME THAT OUR DECISION TODAY SHOULD
REQUIRE US TO IMPOSE FEDERAL REQUIREMENTS SUCH AS UNANIMOUS VERDICTS OR
A JURY OF 12 UPON THE STATES.  WE MAY WELL CONCLUDE THAT THESE AND
OTHER FEATURES OF FEDERAL JURY PRACTICE ARE BY NO MEANS FUNDAMENTAL--
THAT THEY ARE NOT ESSENTIAL TO DUE PROCESS OF LAW-- AND THAT THEY ARE
NOT OBLIGATORY ON THE STATES. 

I WOULD MAKE THESE POINTS CLEAR TODAY.  NEITHER LOGIC NOR HISTORY
NOR THE INTENT OF THE DRAFTSMEN OF THE FOURTEENTH AMENDMENT CAN
POSSIBLY BE SAID TO REQUIRE THAT THE SIXTH AMENDMENT OR ITS JURY TRIAL
PROVISION BE APPLIED TO THE STATES TOGETHER WITH THE TOTAL GLOSS THAT
THIS COURT'S DECISIONS HAVE SUPPLIED.  THE DRAFTSMEN OF THE FOURTEENTH
AMENDMENT INTENDED WHAT THEY SAID, NOT MORE OR LESS:  THAT NO STATE
SHALL DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE
PROCESS OF LAW.  IT IS ULTIMATELY THE DUTY OF THIS COURT TO INTERPRET,
TO ASCRIBE SPECIFIC MEANING TO THIS PHRASE.  THERE IS NOT REASON
WHATEVER FOR US TO CONCLUDE THAT, IN SO DOING, WE ARE BOUND SLAVISHLY
TO FOLLOW NOT ONLY THE SIXTH AMENDMENT BUT ALL OF ITS BAG AND BAGGAGE,
HOWEVER SECURELY OR INSECURELY AFFIXED THEY MAY BE BY LAW AND PRECEDENT
TO FEDERAL PROCEEDINGS.  TO TAKE THIS COURSE, IN MY JUDGMENT, WOULD BE
NOT ONLY UNNECESSARY BUT MISCHIEVOUS BECAUSE IT WOULD INFLICT A SERIOUS
BLOW UPON THE PRINCIPLE OF FEDERALISM.  THE DUE PROCESS CLAUSE COMMANDS
US TO APPLY ITS GREAT STANDARD TO STATE COURT PROCEEDINGS TO ASSURE
BASIC FAIRNESS.  IT DOES NOT COMMAND US RIGIDLY AND ARBITRARILY TO
IMPOSE THE EXACT PATTERN OF FEDERAL PROCEEDINGS UPON THE 50 STATES.  ON
THE CONTRARY, THE CONSTITUTION'S COMMAND, IN MY VIEW, IS THAT IN OUR
INSISTENCE UPON STATE OBSERVANCE OF DUE PROCESS, WE SHOULD, SO FAR AS
POSSIBLE, ALLOW THE GREATEST LATITUDE FOR STATE DIFFERENCES.  IT
REQUIRES, WITHIN THE LIMITS OF THE LOFTY BASIC STANDARDS THAT IT
PRESCRIBES FOR THE STATES AS WELL AS THE FEDERAL GOVERNMENT, MAXIMUM
OPPORTUNITY FOR DIVERSITY AND MINIMAL IMPOSITION OF UNIFORMITY OF
METHOD AND DETAIL UPON THE STATES.  OUR CONSTITUTUION SETS UP A FEDERAL
UNION, NOT A MONOLITH. 

THIS COURT HAS HERETOFORE HELD THAT VARIOUS PROVISIONS OF THE BILL
OF RIGHTS SUCH AS THE FREEDOM OF SPEECH AND RELIGION GUARANTEES OF THE
FIRTH AMENDMENT, THE PROHIBITION OF UNREASONABLE SEARCHES AND SEIZURES
IN THE FOURTH AMENDMENT, THE PRIVILEGE AGAINST SELF-INCRIMINATION OF
THE FIFTH AMENDMENT, AND THE RIGHT TO COUNSEL AND TO CONFRONTATION
UNDER THE SIXTH AMENDMENT "ARE ALL TO BE ENFORCED AGAINST THE STATES
UNDER THE FOURTEENTH AMENDMENT ACCORDING TO THE SAME STANDARDS THAT
PROTECT THOSE PERSONAL RIGHTS AGAINST FEDERAL ENCROACHMENT."  MALLOY V.
HOGAN, 378 U.S. 1, 10 (1964); POINTER V. TEXAS, 380 U.S. 400, 406
(1965); MIRANDA V. ARIZONA, 384 U.S. 436, 464 (1966).  I NEED NOT
QUARREL WITH THE SPECIFIC CONCLUSION IN THOSE SPECIFIC INSTANCES.  BUT
UNLESS ONE ADHERES SLAVISHLY TO THE INCORPORATION THEORY, BODY AND
SUBSTANCE, THE SAME CONCLUSION NEED NOT BE SUPERIMPOSED UPON THE JURY
TRIAL RIGHT.  I RESPECTFULLY BUT URGENTLY SUGGEST THAT IT SHOULD NOT
BE.  JURY TRIAL IS MORE THAN A PRINCIPLE OF JUSTICE APPLICABLE TO
INDIVIDUAL CASES.  IT IS A SYSTEM OF ADMINISTRATION OF THE BUSINESS OF
THE STATE.  WHILE WE MAY BELIEVE (AND I DO BELIEVE) THAT THE RIGHT OF
JURY TRIAL IS FUNDAMENTAL, IT DOES NOT FOLLOW THAT THE PARTICULARS OF
ACCORDING THAT RIGHT MUST BE UNIFORM.  WE SHOULD BE READY TO WELCOME
STATE VARIATIONS WHICH DO NOT IMPAIR-- INDEED, WHICH MAY ADVANCE-- THE
THEORY AND PURPOSE OF TRIAL BY JURY.     /1A/  (THIS OPINION APPLIES TO
NO. 410, DUNCAN V. LOUISIANA, ANTE, P. 145). 

/1/  SEE, E.G., BAIL REFORM ACT OF 1966, PUB. L. 89-465, 18 U.S.C.
3141 ET SEQ. (1964 ED., SUPP. II); CRIMINAL JUSTICE ACT OF 1964, PUB.
L. 88-455, 18 U.S.C. 3006A; JURY SELECTION AND SERVICE ACT OF 1968,
PUB. L. 90-274, 82 STAT. 53; SCHOWGUROW V. STATE, 240 MD. 121, 213 A.2D
475 (1965); NOTE, THE PROPOSED PENAL LAW OF NEW YORK, 64 COL.L.REV. 
1469 (1964). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

I DISSENT FOR THE REASONS EXPRESSED IN MY DISSENTING OPINION IN
DUNCAN V. LOUISISNA, ANTE, P. 171, AND IN MY SEPARATE OPINION IN CHEFF
V. SCHNACKENBERG, 384 U.S. 373, 380.  SEE ALSO UNITED STATES V.
BARNETT, 376 U.S. 681; GREEN V. UNITED STATES, 356 U.S. 165. 

THIS CASE COMPLETES A REMARKABLE CIRCLE.  IN DUNCAN, SUPRA, THE
COURT IMPOSED ON THE STATES A RULE OF PROCEDURE THAT WAS NEITHER SHOWN
TO BE FUNDAMENTAL TO PROCEDURAL FAIRNESS NOR HELD TO BE PART OF THE
ORIGINALLY UNDERSTOOD CONTENT OF THE FOURTEENTH AMENDMENT.  THIS SOLE
JUSTIFICATION WAS THAT THE RULE WAS FOUND IN THE BILL OF RIGHTS.  THE
COURT NOW, WITHOUT STATING ANY ADDITIONAL REASONS, IMPOSES ON THE
STATES A RELATED RULE THAT, AS RECENTLY AS CHEFF V. SCHNACKENBERG,
SUPRA, THE COURT OF MR. JUSTICE HOLMES, /1/  INVEIGHING AGAINST A
CENTURY OF "UNCONSTITUTIONAL ASSUMPTION OF (STATE) POWERS BY THE COURTS
OF THE UNITED STATES" IN DEROGATION OF THE CENTRAL PREMISE OF OUR
CONSTITUTION, SHOULD BE INVOKED TO SUPPORT THE COURT'S ACTION HERE CAN
ONLY BE PUT DOWN TO THE VAGARIES OF THE TIMES. 

/1/  BLACK & WHITE TAXICAB & TRANSFER CO. V. BROWN & YELLOW TAXICAB
& TRANSFER CO., 276 U.S. 518, 532, AT 533 (DISSENTING OPINION, QUOTED
ANTE, AT 198). 

ANTHONY BRADLEY EBEN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS WAS HERBERT F. FRIEDMAN. 

EDWARD J. HLADIS ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE JOHN J. STAMOS AND RONALD BUTLER. 
..END :








DYKE V. TAYLOR IMPLEMENT CO., 391 U.S. 216 


       DYKE ET AL V. TAYLOR IMPLEMENT MANUFACTURING CO., INC.

        CERTIORARI TO THE SUPREME COURT OF TENNESSEE. 

        NO. 149.  ARGUED JANUARY 18, 1968.-- DECIDED MAY 20, 1968. 


IN CONNECTION WITH A LABOR DISPUTE, A TENNESSEE COUNTY CHANCERY COURT
ISSUED AN INJUNCTION WHICH, INTER ALIA, BARRED INFLICTING HARM OR
DAMAGE TO RESPONDENT COMPANY'S EMPLOYEES.  ABOUT A MONTH LATER, A SHOT
WAS FIRED FROM A CAR AT THE HOUSE OF ONE OF RESPONDENT'S NONSTRIKING
EMPLOYEES.  A DEPUTY SHERIFF, PRESUMABLY INFORMED OF THE CRIME BUT
WITHOUT A DESCRIPTION OF THE CAR OR FURTHER DETAILS, PURSUED A
SUSPICIOUS CAR WHICH RACED AWAY BUT WAS ULTIMATELY STOPPED BY
POLICEMEN, WHO ARRESTED PETITIONERS, THE CAR'S OCCUPANTS, APPARENTLY
FOR RECKLESS DRIVING.  THE DEPUTY SHERIFF ARRIVED, AND HE AND THE
POLICEMEN NOTED A FRESH BULLET HOLE IN THE CAR.  THEY TOOK PETITIONERS
TO JAIL, AND THE POLICEMEN PARKED THE CAR ON THE STREET OUTSIDE,
APPARENTLY AS A CONVENIENCE TO THE CAR'S OWNER.  THE DEPUTY SHERIFF AND
SEVERAL POLICEMEN MADE A WARRANTLESS SEARCH OF THE CAR AND FOUND AN AIR
RIFLE UNDER THE FRONT SEAT.  OVER PETITIONERS' OBJECTION EVIDENCE ABOUT
THE GUN WAS ADMITTED AT THEIR TRIAL BEFORE THE CHANCELLOR FOR CRIMINAL
CONTEMPT FOR VIOLATING THE INJUNCTION.  PETITIONERS WERE FOUND GUILTY
AND GIVEN THE MAXIMUM SENTENCE OF 10 DAYS IN JAIL AND A $50 FINE.  THE
STATE SUPREME COURT AFFIRMED, REJECTING PETITIONERS' CONTENTIONS THAT
THE CONVICTIONS VIOLATED THEIR CONSTITUTIONAL RIGHTS BECAUSE A JURY
TRIAL WAS DENIED AND BECAUSE EVIDENCE CONCERNING THE GUN, WHICH THEY
CLAIMED HAD BEEN ILLEGALLY SEIZED, HAD BEEN ADMITTED.  HELD: 

1.  IN THE LIGHT OF THE MAXIMUM SENTENCE WHICH THE TENNESSEE
STATUTES ALLOWED, THE CRIMINAL CONTEMPT FOR WHICH PETITIONERS WERE
CONVICTED WAS A "PETTY OFFENSE," TO WHICH THE FEDERAL CONSTITUTIONAL
RIGHT OF A JURY TRIAL DOES NOT EXTEND.  PP. 219-220. 

2.  THE EVIDENCE IN THE RECORD IS INSUFFICIENT TO JUSTIFY THE
CONCLUSION THAT THE OFFICERS BEFORE THEY BEGAN THEIR WARRANTLESS SEARCH
OF THE CAR HAD "REASONABLE OR PROBABLY CAUSE" TO BELIEVE THAT THEY
WOULD FIND AN INSTRUMENTALITY OF A CRIME OR EVIDENCE PERTAINING TO A
CRIME.  THE APPLICABILITY OF BRINEGAR V. UNITED STATES, 338 U.S. 160
(1949), TO A WARRANTLESS SEARCH OF A PARKED AUTOMOBILE UPON PROBABLE
CAUSE THEREFORE NEED NOT BE DECIDED, AND PETITIONERS' CLAIM MUST BE
SUSTAINED THAT THE GUN WAS ILLEGALLY SEIZED AND EVIDENCE CONCERNING IT
SHOULD NOT HAVE BEEN ADMITTED AT THEIR TRIAL.  PP. 220-222. 

219 TENN. 472, 410 S.W.2D 881, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, WAYNE DYKE, ED MCKINNEY, AND JOHN BLACKWELL, WERE FOUND
GUILTY OF CRIMINAL CONTEMPT BY THE CHANCERY COURT OF MCMINN COUNTY,
TENNESSEE.  ALL THREE WERE GIVEN THE MAXIMUM SENTENCE AUTHORIZED BY
STATUTE, 10 DAYS IN JAIL AND A $50 FINE.  /1/  THE TENNESSEE SUPREME
COURT AFFIRMED, /2/  REJECTING CONTENTIONS THAT THE CONVICTIONS
VIOLATED THE FEDERAL CONSTITUTION BECAUSE A JURY TRIAL WAS DENIED /3/
AND BECAUSE TESTIMONY CONCERNING A GUN, ALLEGEDLY DISCOVERED DURING AN
UNCONSTITUTIONAL SEARCH, WAS ADMITTED AT TRIAL.  PETITIONERS RAISED
BOTH CHALLENGES IN THEIR PETITION FOR A WRIT OF CERTIORARI, AND WE
GRANTED THE WRIT.  389 U.S. 815 (1967). 

IN CONNECTION WITH A LABOR DISPUTE, MCMINN COUNTY CHANCERY COURT
ISSUED, ON JANUARY 24, 1966, AN INJUNCTION AGAINST, INTER ALIA, 

"INFLICTING HARM OR DAMAGE UPON THE PERSONS OR PROPERTY OF
(RESPONDENT TAYLOR IMPLEMENT COMPANY'S) EMPLOYEES, CUSTOMERS, VISITORS
OR ANY OTHER PERSONS."  ON THE NIGHT OF FEBRUARY 25, 1966, A CAR WAS
SEEN TO DRIVE PAST THE HOME OF LLOYD DUCKETT, A NONSTRIKING TAYLOR
IMPLEMENT EMPLOYEE WHO LIVED IN MONROE COUNTY, WHICH ADJOINS MCMINN. 
SHOTS WERE FIRED FROM THE CAR AT OR INTO THE DUCKETT HOME.  ROBERT
WAYNE ELLIS, DUCKETT'S SON-IN-LAW, WAS STANDING IN THE FRONT YARD WITH
ANOTHER SON-IN-LAW, DALE HARRIS; ELLIS FIRED BACK AT THE CAR WITH A
PISTOL, AND THOUGHT HIS FIRST SHOT HIT THE BACK OF THE CAR.  ELLIS
INFORMED MONROE COUNTY SHERIFF HOWARD KIRKPATRICK BY TELEPHONE, AND
SOON AFTER, MONROE DEPUTY SHERIFF LOYD POWERS, CONTACTED BY KIRKPATRICK
ON HIS RADIO AND PRESUMABLY TOLD OF THE CRIME, SPOTTED A SUSPICIOUS CAR
AND BEGAN FOLLOWING IT.  THE CAR RACED AWAY BUT WAS STOPPED BY ATHENS,
TENNESSEE, POLICEMEN, NOTIFIED BY POWERS OF A SPEEDING CAR HEADING FOR
ATHENS.  WHEN POWER REACHED THE STOPPED CAR, WHICH CONTAINED THE THREE
PETITIONERS, HE AND THE ATHENS POLICEMENT TOOK THEM TO MCMINN COUNTY
JAIL, /4/  AND PARKED THEIR CAR OUTSIDE THE JAIL.  WHILE PETITIONERS
WERE WAITING INSIDE THE JAIL, POWERS AND SEVERAL ATHENS POLICEMENT
SEARCHED THE CAR.  UNDER THE FRONT SEAT THEY FOUND AN AIR RIFLE.  AT
TRIAL THERE WAS TESTIMONY THAT ELLIS AND HARRIS HAD RECOGNIZED THE CAR
FROM WHICH SHOTS WERE FIRED AS A TWO-TONE 1960 OR 1961 DODGE, THAT
ELLIS THOUGHT HE HIT THE BACK OF THE DODGE WITH ONE SHOT, THAT THE CAR
STOPPED IN ATHENS WAS A 1960 DODGE WITH A FRESH BULLET HOLE THROUGH THE
TRUNK LID, THAT AN AIR RIFLE PELLET WAS FOUND THE NEXT DAY OUTSIDE THE
DUCKETT HOME, AND THAT AN AIR RIFLE WAS FOUND UNDER THE CAR'S SEAT. 
/5/  THE CHANCELLOR NOTED THAT THE CASE AGAINST PETITIONERS WAS
"PREMISED ENTIRELY UPON CIRCUMSTANTIAL EVIDENCE" BUT THAT NONETHELESS
HE HAD "NO TROUBLE AT ALL WITH THE PROOF WHICH I HAVE HEARD AND I HAVE
WEIGHED IT IN ITS SEVEREST FORM, THAT THE CHARGES MADE MUST BE PROVEN
BEYOND A REASONABLE DOUBT."  THE THREE PETITIONERS WERE FOUND GUILTY. 

PETITIONERS' FIRST CLAIM IS THAT THE FOURTEENTH AMENDMENT WAS
VIOLATED WHEN THEIR REQUEST FOR TRIAL BY JURY WAS DENIED.  WE HAVE HELD
TODAY, IN DUNCAN V. LOUISIANA, ANTE, P. 145, THAT THE FOURTEENTH
AMENDMENT IMPOSES UPON THE STATES THE REQUIREMENT OF ARTICLE III AND
THE SIXTH AMENDMENT THAT JURY TRIALS BE AVAILABLE TO CRIMINAL
DEFENDANTS.  WE HAVE ALSO HELD, IN BLOOM V. ILLINOIS, ANTE, P. 194,
THAT PROSECUTIONS FOR CRIMINAL CONTEMPT ARE WITHIN THE CONSTITUTIONAL
GUARANTEE.  THE BLOOM AND DUNCAN CASES, HOWEVER, HAVE REAFFIRMED THE
VIEW THAT THE GUARANTEE OF JURY TRIAL DOES NOT EXTEND TO PETTY CRIMES. 
AS BLOOM MAKES CLEAR, SUPRA, AT 195-200, CRIMINAL CONTEMPT HAS ALWAYS
BEEN THOUGHT NOT TO BE A CRIME OF THE SORT THAT REQUIRES A JURY TRIAL
REGARDLESS OF THE PENALTY AUTHORIZED.  ALLEGED CRIMINAL CONTEMNORS MUST
BE GIVEN A JURY TRIAL, THEREFORE, UNLESS THE LEGISLATURE HAS AUTHORIZED
A MAXIMUM PENALTY WITHIN THE "PETTY OFFENSE" LIMIT OR, IF THE
LEGISLATURE HAS MADE NO JUDGMENT ABOUT THE MAXIMUM PENALTY THAT CAN BE
IMPOSED, UNLESS THE PENALTY ACTUALLY IMPOSED IS WITHIN THAT LIMIT. 
THIS COURT HAS NOT HAD OCCASION TO STATE PRECISELY WHERE THE LINE FALLS
BETWEEN PUNISHMENTS THAT CAN BE CONSIDERED "PETTY" AND THOSE THAT
CANNOT BE.  FROM CHEFF V. SCHNACKENBERG, 384 U.S. 373 (1966), IT IS
CLEAR THAT A SIX-MONTH SENTENCE IS SHORT ENOUGH TO BE "PETTY."  THAT
HOLDING IS SUFFICIENT FOR RESOLUTION OF THIS CASE.  HERE THE MAXIMUM
PENALTY WHICH TENNESSEE STATUTES PERMITTED THE CHANCELLOR TO IMPOSE WAS
10 DAYS IN JAIL AND A FINE OF $50.  THE CONTEMPT WAS THEREFORE A "PETTY
OFFENSE," AND PETITIONERS HAD NO FEDERAL CONSTITUTIONAL RIGHT TO A JURY
TRIAL. 

PETITIONERS NEXT CONTEND THAT ADMISSION AT TRIAL, OVER TIMELY
OBJECTION, OF EVIDENCE CONCERNING THE DISCOVERY OF AN AIR RIFLE UNDER
THE SEAT OF THE CAR IN WHICH THEY WERE RIDING WHEN ARRESTED VIOLATED
THE FOURTH AND FOURTEENTH AMENDMENTS.  THE STATE CONCEDES THAT THE
SEARCH WAS WITHOUT A WARRANT, BUT ASSERTS THAT IT WAS NOT IN VIOLATING
OF THE CONSTITUTUION BECAUSE "REASONABLE."  WHILE THE RECORD IS NOT
ENTIRELY CLEAR, PETITIONERS APPEAR TO HAVE BEEN ARRESTED FOR RECKLESS
DRIVING.  WHETHER OR NOT A CAR MAY CONSTITUTIONALLY BE SEARCHED
"INCIDENT" TO ARREST FOR A TRAFFIC OFFENSE, THE SEARCH HERE DID NOT
TAKE PLACE UNTIL PETITIONERS WERE IN CUSTODY INSIDE THE COURTHOUSE AND
THE CAR WAS PARKED ON THE STREET OUTSIDE.  PRESTON V. UNITED STATES,
376 U.S. 364 (1964), HOLDS THAT UNDER SUCH CIRCUMSTANCES A SEARCH IS
"TOO REMOTE IN TIME OR PLACE TO (BE) INCIDENTAL TO THE ARREST . . . . "
376 U.S.,AT 368. 

THE SEARCH IN QUESTION HERE IT NOT SAVED BY COOPER V. CALIFORNIA,
336 U.S. 58 (1967), WHICH UPHELD A WARRANTLESS SEARCH OF A CAR
IMPOUNDED "AS EVIDENCE" PURSUANT TO A STATE STATUTE.  THE POLICE THERE
WERE REQUIRED TO SEIZE THE CAR AND TO KEEP IT UNTIL FORFEITURE
PROCEEDINGS COULD BE COMPLETED.  IN THOSE CIRCUMSTANCES, SAID THE
COURT, "(IT WOULD BE UNREASONABLE TO HOLD THAT THE POLICE, HAVING TO
RETAIN THE CAR IN THEIR CUSTODY FOR SUCH A LENGTH OF TIME, HAD NO
RIGHT, EVEN FOR THEIR OWN PROTECTION, TO SEARCH IT."  386 U.S.,AT 61
62.  IN THE INSTANT CASE THERE IS NO INDICATION THAT THE POLICE HAD
PURPORTED TO IMPOUND OR TO HOLD THE CAR, THAT THEY WERE AUTHORIZED BY
ANY STATE LAW TO DO SO, OR THAT THEIR SEARCH OF THE CAR WAS INTENDED TO
IMPLEMENT THE PURPOSES OF SUCH CUSTODY.  HERE THE POLICE SEEM TO HAVE
PARKED THE CAR NEAR THE COURTHOUSE MERELY AS A CONVENIENCE TO THE
OWNER, AND TO HAVE BEEN WILLING FOR SOME FRIEND OR RELATIVE OF MCKINNEY
(OR MCKINNEY HIMSELF IF HE WERE SOON RELEASED FROM CUSTODY) TO DRIVE IT
AWAY.  THE REASONS THAT MADE THE WARRANTLESS SEARCH IN COOPER
REASONABLE THUS DO NOT APPLY TO THE SEARCH HERE.  THE COURT DISCUSSED
IN COOPER, 386 U.S.,AT 61, THE REASONS WHY THAT CASE WAS
DISTINGUISHABLE FROM PRESTON.  THE CASE BEFORE US IS LIKE PRESTON AND
UNLIKE COOPER ACCORDING TO EACH OF THE DISTINGUISHING TESTS SET FORTH
IN THE COOPER OPINION. 

AUTOMOBILES, BECAUSE OF THEIR MOBILITY, MAY BE SEARCHED WITHOUT A
WARRANT UPON FACTS NOT JUSTIFYING A WARRANTLESS SEARCH OF A RESIDENCE
OR OFFICE.  BRINEGAR V. UNITED STATES, 338 U.S. 160 (1949); CARROLL V.
UNITED STATES, 267 U.S. 132 (1925).  THE CASES SO HOLDING HAVE,
HOWEVER, ALWAYS INSISTED THAT THE OFFICERS CONDUCTING THE SEARCH HAVE
"REASONABLE OR PROBABLE CAUSE" TO BELIEVE THAT THEY WILL FIND THE
INSTRUMENTALITY OF A CRIME OR EVIDENCE PERTAINING TO A CRIME BEFORE
THEY BEGIN THEIR WARRANTLESS SEARCH.  THE RECORD BEFORE US DOES NOT
CONTAIN EVIDENCE THAT SHERIFF KIRKPATRICK, DEPUTY SHERIFF POWERS, OR
THE OFFICERS WHO ASSISTED IN THE SEARCH HAD REASONABLE OR PROBABLE
CAUSE TO BELIEVE THAT EVIDENCE WOULD BE FOUND IN PETITIONERS' CAR. 
POWERS HAD NOT BEEN TOLD THAT HARRIS AND ELLIS HAD IDENTIFIED THE CAR
FROM WHICH SHOTS WERE FIRED AS A 1960 OR 1961 DODGE.  HE TESTIFIED:

"ALL I GOT IS JUST THAT IT WOULD BE AN OLD MAKE MODEL CAR.  KINDA
OLD MAKE MODEL CAR."  THE RECORD ALSO CONTAINS NO SUGGESTION THAT ELLIS
TOLD SHERIFF KIRKPATRICK, DEPUTY SHERIFF POWERS, OR ANY OTHER LAW
ENFORCEMENT OFFICIAL THAT HE HAD FIRED AT THE DODGE OR THAT HE THOUGHT
HE HAD HIT IT WITH ONE BULLET.  AS FAR AS THIS RECORD SHOWS, POWERS
KNEW ONLY THAT THE CAR HE CHASED WAS "AN OLD MAKE MODEL CAR," THAT IT
SPEEDED UP WHEN HE CHASED IT, AND THAT IT CONTAINED A FRESH BULLET
HOLE.  THE EVIDENCE PLACED UPON THE RECORD IS INSUFFICIENT TO JUSTIFY A
CONCLUSION THAT MCKINNEY'S CAR WAS SEARCHED WITH "REASONABLE OR
PROBABLE CAUSE" TO BELIEVE THE SEARCH WOULD BE FRUITFUL. 

SINCE THE SEARCH WAS NOT SHOWN TO HAVE BEEN BASED UPON SUFFICIENT
CAUSE, WE NEED NOT REACH THE QUESTION WHETHER CARROLL AND BRINEGAR,
SUPRA, EXTEND TO A WARRANTLESS SEARCH, BASED UPON PROBABLE CAUSE, OF AN
AUTOMOBILE WHICH, HAVING BEEN STOPPED ORIGINALLY ON A HIGHWAY, IS
PARKED OUTSIDE A COURTHOUSE. 

BECAUSE EVIDENCE WAS ADMITTED WITHOUT A SATISFACTORY SHOWING THAT IT
WAS OBTAINED IN COMPLIANCE WITH THE FOURTH AND FOURTEENTH AMENDMENTS,
THE JUDGMENT BELOW IS REVERSED AND THE CASE IS REMANDED TO THE
TENNESSEE SUPREME COURT FOR DISPOSITION NOT INCONSISTENT WITH THIS
OPINION. 

              REVERSED AND REMANDED. 

/1/  TENN. CODE ANN. SEC. 23-903 (1955): "THE PUNISHMENT FOR
CONTAMPT MAY BE BY FINE OR IMPRISONMENT, OR BOTH; BUT WHERE NOT
OTHERWISE SPECIALLY PROVIDED, THE CIRCUIT, CHANCERY, AND APPELLATE
COURTS ARE LIMITED TO A FINE OF FIFTY DOLLARS ($50.00), AND
IMPRISONMENT NOT EXCEEDING TEN (10) DAYS, AND ALL OTHER COURTS ARE
LIMITED TO A FINE OF TEN DOLLARS ($10.00)." 

/2/  SUB NOM. TAYLOR IMPLEMENT MFG. CO., INC. V. UNITED STEELWORKERS
OF AMERICA, 219 TENN. 472, 410 S.W.2D 881 (1966), REHEARING DENIED, 219
TENN. 481, 410 S.W.2D 885 (1967). 

/3/  THIS CLAIM BY PETITIONERS IS BASED ON THE FOURTEENTH AMENDMENT,
AND RESPONDENT CALLS OUR ATTENTION TO THE FACT THAT AT TRIAL AND ON
APPEAL TO THE TENNESSEE SUPREME COURT PETITIONERS POINTED ONLY TO
SPECIFIC BILL OF RIGHTS PROVISIONS.  THE OPINION BELOW DEMONSTRATES
THAT THE TENNESSEE SUPREME COURT CONSIDERED AND REJECTED THE CONTENTION
THAT THE FOURTEENTH AMENDMENT AND THE SIXTH AMENDMENT, TAKEN TOGETHER,
REQUIRED THAT PETITIONERS BE GIVEN A JURY TRIAL.  WE HAVE FREQUENTLY
HELD THAT A PARTY IS NOT BARRED BY FAILURE TO CITE BELOW THE PROPER
CONSTITUTIONAL PROVISIONS WHEN THE LOWER COURTS CONSIDER THE RELEVANT
PROVISIONS.  E.G., BRANIFF AIRWAYS, INC. V. NEBRASKA STATE BD. OF
EQUALIZATION AND ASSESSMENT, 347 U.S. 590, 598-599 (1954); GIBBS V.
BURKE, 337 U.S. 773, 779 (1949). 

/4/  THE RECORD SUGGESTS THAT PETITIONERS WERE TOLD THEY WERE UNDER
ARREST FOR RECKLESS DRIVING. 

/5/  THE AIR RIFLE ITSELF WAS NOT INTRODUCED.  THE TRIAL JUDGE
TREATED IT AS "FILED AND WITHDRAWN." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

I CONCUR IN THIS CASE, AND IN THAT PART OF THE COURT'S OPINION
DEALING WITH THE ADMISSION AT PETITIONERS' TRIAL OF EVIDENCE PRODUCED
BY AN UNLAWFUL SEARCH. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE COURT HOLDS IN THIS CASE, AS IT SAID IN DICTUM IN BLOOM V.
ILLINOIS, ANTE, P. 194, THAT PERSONS CHARGED WITH SO-CALLED "PETTY"
CRIMES ARE NOT ENTITLED TO TRIAL BY JURY.  I AM NOT AS SURE AS THE
COURT SEEMS TO BE THAT THIS CLASSIFICATION SHOULD BE USED TO DEPRIVE A
CRIMINAL DEFENDANT OF A JURY TRIAL.  SEE MY DISSENTING OPINION IN GREEN
V. UNITED STATES, 356 U.S. 165, 193-219.  THE WORD "PETTY" HAS NO EXACT
MEANING, AND UNTIL IT IS GIVEN A BETTER DEFINITION THAN THAT WHICH THE
COURT GIVES TO IT TODAY, I DO NOT DESIRE TO CONDEMN THE RIGHT TO TRIAL
BY JURY TO SUCH AN UNCERTAIN FATE.  SEE CHEFF V. SCHNACKENBERG, 384
U.S. 373, 384-393 (DISSENTING OPINION).  MY BROTHER HARLAN'S DISSENT IN
DUNCAN V. LOUISIANA, ANTE, P. 171, POINTS OUT THAT WHIPPINGS, EVEN
WHERE 31 LASHES WERE INFLICTED, WERE CLASSIFIED AS PETTY CRIMES.  AND
THE COURT HERE STATES THAT SIX MONTHS' PUNISHMENT IS PETTY.  I AM LOATH
TO HOLD WHIPPINGS OR SIX MONTHS' PUNISHMENT AS "PETTY."  AND HERE,
WHERE THE OFFENSE IS PUNISHABLE BY A $50 FINE AND 10 DAYS IN JAIL
BEHIND BARS, I FEEL THE SAME WAY.  EVEN THOUGH THERE BE SOME OFFENSES
THAT ARE "PETTY," I WOULD NOT HOLD THAT THIS OFFENSE FALLS IN THAT
CATEGORY.  SEE MY DISSENTING OPINION IN UNITED STATES V. BARNETT, 376
U.S. 681, 727.  SINCE I WOULD REVERSE AND REMAND THIS CASE FOR A TRIAL
BY JURY, I DO NOT FIND IT NECESSARY TO CONSIDER THE OTHER QUESTIONS
DECIDED BY THE COURT. 

MICHAEL H. GOTTESMAN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WERE BERNARD KLEIMAN, ELLIOT BREDHOFF, GEORGE H. COHEN,
GEORGE LONGSHORE, AND TOM J. TAYLOR. 

ALLEN H. CARTER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE FOSTER D. ARNETT AND S. RANDOLPH AYRES. 
..END :









JOINT INDUSTRY BOARD V. U.S., 391 U.S. 224 


       JOINT INDUSTRY BOARD OF THE ELECTRICAL INDUSTRY ET AL. V.

           UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 616.  ARGUED MARCH 25, 1968.-- DECIDED MAY 20, 1968. 


AN EMPLOYER'S UNPAID CONTRIBUTIONS TO AN EMPLOYEES' ANNUITY PLAN
ESTABLISHED BY A COLLECTIVE BARGAINING CONTRACT ARE NOT ENTITLED TO A
PRIORITY UNDER SEC. 64A(2) OF THE BANKRUPTCY ACT, WHICH GRANTS
PRIORITY, LIMITED TO $600 AND TO WAGES EARNED WITHIN THREE MONTHS
BEFORE COMMENCEMENT OF BANKRUPTCY PROCEEDINGS, TO "WAGES . . . DUE TO
WORKMEN."  UNITED STATES V. EMBASSY RESTAURANT, INC., 359 U.S. 29
(1959), FOLLOWED.  PP. 225-229. 

279 F.2D 211, AFFIRMED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

104(A)(2), GRANTS PRIORITY OVER THE CLAIMS OF OTHER CREDITORS TO "WAGES
. . . DUE TO WORKMEN, . . . " THE PRIORITY BEING LIMITED TO $600 AND TO
WAGES EARNED WITHIN THREE MONTHS BEFORE THE COMMENCEMENT OF THE
PROCEEDINGS.  /1/  THE QUESTION BEFORE US IS WHETHER PRIORITY UNDER
SEC. 64A(2) MUST BE ACCORDED AN EMPLOYER'S UNPAID CONTRIBUTIONS TO AN
EMPLOYEES' ANNUITY PLAN ESTABLISHED BY A COLLECTIVE BARGAINING
CONTRACT.  THE REFEREE AND THE DISTRICT COURT DENIED THE PRIORITY AND
THE COURT OF APPEALS AFFIRMED.  IN RE A & S ELECTRIC CORP., 379 F.2D
211 (C.A.2D CIR. 1967).  WE GRANTED CERTIORARI, SUB NOM. JOINT INDUSTRY
BOARD OF THE ELECTRICAL INDUSTRY V. UNITED STATES, 389 U.S. 969
(1967).  WE AFFIRM THE JUDGMENT. 

THE ANNUITY PLAN OF THE ELECTRICAL INDUSTRY IN NEW YORK CITY WAS
ESTABLISHED BY A COLLECTIVE BARGAINING AGREEMENT BETWEEN LOCAL UNION
NO. 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, AND
FOUR ASSOCIATIONS OF ELECTRICAL CONTRACTORS.  THE PLAN COVERS ALL
EMPLOYEES IN THE BARGAINING UNIT REPRESENTED BY THE UNION AND IS FUNDED
BY EMPLOYER CONTRIBUTIONS OF "FOUR DOLLARS ($4.00) PER DAY FOR EACH DAY
WORKED OR EACH HOLIDAY FOR WHICH PAYMENT IS RECEIVED BY HIS EMPLOYEES. 
. . . "  PAYMENTS ARE MADE TO TRUSTEES WHO ARE EMPOWERED TO COLLECT AND
ADMINISTER THE CONTRIBUTIONS UNDER THE PROVISIONS OF THE PLAN.  THESE
TRUSTEES ARE THE PETITIONERS HERE.  CONTRIBUTIONS RECEIVED BY THE
TRUSTEES ARE CREDITED TO THE ACCOUNT OF THE INDIVIDUAL EMPLOYEES BUT
ARE "PAYABLE TO HIM ONLY AS HEREINAFTER PROVIDED," NAMELY, UPON DEATH,
RETIREMENT FROM THE INDUSTRY AT AGE 60, PERMANENT DISABILITY, ENTRY
INTO THE ARMED FORCES, OR CEASING TO BE A PARTICIPANT UNDER THE PLAN. 
DEATH BENEFITS ARE PAID ONLY OUT OF INCOME, IF AVAILABLE, AND OTHER
BENEFITS, THOUGH THEY MAY BE PAYABLE IN INSTALLMENTS, WILL AT A MINIMUM
RETURN TO THE EMPLOYEE THE TOTAL OF THE CONTRIBUTIONS CREDITED TO HIS
NAME, WITHOUT INTEREST. 

A & S ELECTRIC CORPORATION, AN EMPLOYER LIABLE FOR CONTRIBUTIONS TO
THE ANNUITY PLAN, WAS ADJUDICATED A BANKRUPT IN 1963.  THE JOINT
INDUSTRY BOARD FILED A CLAIM WHICH INCLUDED $5,114 REPRESENTING
PAYMENTS UNDER THE PLAN WHICH FELL DUE BUT WERE UNPAID DURING THE THREE
MONTHS PRIOR TO THE COMMENCEMENT OF THE PROCEEDINGS.  PRIORITY FOR THIS
AMOUNT WAS ASSERTED UNDER SEC. 64A(2).  THE UNITED STATES, WITH A
FOURTH-CLASS PRIORITY CLAIM FOR UNPAID TAXES, OBJECTED TO THE ALLOWANCE
OF THE JOINT BOARD'S PRIORITY CLAIM.  THE REFEREE AND THE COURTS AGREED
WITH THE UNITED STATES, HOLDING THAT PAYMENTS DUE TO THE JOINT BOARD
WERE NOT WAGES DUE TO WORKMEN, RELYING FOR THIS CONCLUSION PRINCIPALLY
UPON UNITED STATES V. EMBASSY RESTAURANT, INC., 359 U.S. 29 (1959). 

WE AGREE THAT EMBASSY RESTAURANT CONTROLS THIS CASE.  THERE THE
CLAIM WAS FOR UNPAID EMPLOYER CONTRIBUTIONS TO A WELFARE FUND, THE
CONTRIBUTIONS BEING $8 PER MONTH FOR EACH FULL-TIME EMPLOYEE; THE FUND
PROVIDED LIFE INSURANCE, WEEKLY SICK BENEFITS, HOSPITAL AND SURGICAL
PAYMENTS, AND OTHER ADVANTAGES FOR COVERED EMPLOYEES.  THAT CLAIM, THE
COURT HELD, WAS NOT ENTITLED TO SEC. 64A(2) PRIORITY BECAUSE PAYMENTS
TO SUCH A WELFARE FUND DID NOT SATISFY THE MANIFEST PURPOSE OF THE
PRIORITY, WHICH WAS "TO ENABLE EMPLOYEES DISPLACED BY BANKRUPTCY TO
SECURE, WITH SOME PROMPTNESS, THE MONEY DIRECTLY DUE TO THEM IN BACK
WAGES, AND THUS TO ALLEVIATE IN SOME DEGREE THE HARDSHIP THAT
UNEMPLOYMENT USUALLY BRINGS TO WORKERS AND THEIR FAMILIES."  359
U.S.,AT 32.  /2/  THE CONTRIBUTIONS INVOLVED THERE WERE PAYABLE TO
TRUSTEES, NOT TO EMPLOYEES, AND WERE DISBURSABLE TO EMPLOYEES ONLY ON
THE OCCURRENCE OF CERTAIN EVENTS, NOT INCLUDING THE BANKRUPTCY OF THE
EMPLOYER.  NEITHER THE CONTRIBUTIONS NOR THE PLAN PROVIDED ANY
IMMEDIATE SUPPORT FOR WORKMEN DURING THE PERIOD OF FINANCIAL DISTRESS. 

THE CASE BEFORE US CONCERNS EMPLOYER CONTRIBUTIONS TO THE WELFARE
FUND WHICH ARE SIMILARLY NOT DUE THE EMPLOYEES AND NEVER WERE; THEY
WERE PAYABLE ONLY TO THE TRUSTEES, WHO HAD THE EXCLUSIVE RIGHT TO HOLD
AND MANAGE THE FUND.  THOUGH THE CONTRIBUTIONS WERE CREDITED TO
INDIVIDUAL EMPLOYEE ACCOUNTS, NOTHING WAS PAYABLE TO EMPLOYEES EXCEPT
UPON THE OCCURRENCE OF CERTAIN EVENTS.  UNTIL DEATH, RETIREMENT AFTER
AGE 60, PERMANENT DISABILITY, ENTRY INTO MILITARY SERVICE, OR CESSATION
OF PARTICIPATION UNDER THE PLAN, NO BENEFITS WERE PAYABLE.  FURTHER, AS
THE REFEREE POINTED OUT, THE EMPLOYEE COULD NOT ASSIGN, PLEDGE, OR
BORROW AGAINST THE CONTRIBUTIONS, OR OTHERWISE USE THEM AS HIS OWN. 
/3/  QUITE OBVIOUSLY THE ANNUITY FUND WAS NOT INTENDED TO RELIEVE THE
DISTRESS OF TEMPORARY UNEMPLOYMENT, WHETHER ARISING FROM THE BANKRUPTCY
OF THE EMPLOYER OR FOR SOME OTHER REASON.  HENCE, IF EMBASSY RESTAURANT
IS TO BE FOLLOWED, THE UNPAID CONTRIBUTIONS IN THIS CASE DO NOT SATISFY
THE FUNDAMENTAL PURPOSE OF THE SEC. 64A(2) PRIORITY FOR WAGES DUE TO
WORKMEN. 

NOR ARE WE INCLINED TO OVERRULE EMBASSY RESTAURANT'S CONSTRUCTION OF
SEC. 64A(2).  THIS IS A MATTER MORE APPROPRIATELY LEFT TO THE CONGRESS,
WHICH HAS NOT INFREQUENTLY GIVEN ATTENTION TO SEC. 64A OF THE
BANKRUPTCY ACT AND TO THE PRIORITIES IT CREATES.  /4/  THE LATEST
AMENDMENTS TO SEC. 64A OCCURRED IN 1966, IN THE ACTS OF JULY 5, 1966,
80 STAT. 268 AND 80 STAT. 271.  ALTHOUGH THE SECTION WAS COMPLETELY RE
ENACTED IN 1967, /5/  SEC. 64A(2) WAS LEFT UNCHANGED DESPITE THE FACT
THAT IN EVERY CONGRESS SINCE EMBASSY RESTAURANT BILLS HAVE BEEN
INTRODUCED TO OVERRULE OR MODIFY THE RESULT REACHED IN THAT CASE.  /6/ 

DESPITE THE GENERAL POLICY OF THE BANKRUPTCY ACT TO DISTRIBUTE
ASSETS OF THE ESTATE EQUALLY TO CREDITORS, THE PRIORITIES ESTABLISHED
IN SEC. 64A GIVE PRIORITY TO WAGES DUE WORKMEN UP TO $600 IF EARNED
WITHIN THREE MONTHS PRIOR TO BANKRUPTCY.  OTHER UNPAID WAGES ARE
ALLOWABLE AS GENERAL CLAIMS BUT ARE NOT ENTITLED TO PRIORITY.  IF
DELINQUENT CONTRIBUTIONS TO WELFARE AND ANNUITY FUNDS PROVIDING
DEFERRED BENEFITS TO EMPLOYEES WERE TO HAVE EQUAL PRIORITY WITH WAGES
PAYABLE DIRECTLY TO EMPLOYEES, THE MAXIMUM PAYABLE IMMEDIATELY AND
DIRECTLY TO EMPLOYEES WOULD BE REDUCED WHENEVER INDIVIDUAL WAGE CLAIMS
APPROACHED $600 OR WHENEVER THE ASSETS OF THE ESTATE WOULD NOT PERMIT
ALL WAGE CLAIMS TO BE PAID IN FULL.  ALSO, INCREASING THE AMOUNTS
PAYABLE TO SECOND PRIORITY CREDITORS WOULD REDUCE THE ASSETS AVAILABLE
FOR DISTRIBUTION TO LOWER PRIORITY CLAIMANTS AND GENERAL CREDITORS,
INCLUDING WAGE CLAIMANTS NOT ENTITLED TO PRIORITY.  /7/  EMBASSY
RESTAURANT WAS DECIDED NINE YEARS AGO.  IF THERE IS STILL ANY QUESTION
AS TO WHETHER CLAIMS FOR UNPAID CONTRIBUTIONS TO PROVIDE DEFERRED
BENEFITS TO EMPLOYEES SHOULD SHARE THE ASSETS OF BANKRUPTS WITH GENERAL
CREDITORS OR SHOULD BE ENTITLED TO THE LIMITED PRIORITY GRANTED WAGES
DUE TO WORKMEN, ANY NEW RESOLUTION OF THAT QUESTION SHOULD COME FROM
CONGRESS. 

              AFFIRMED. 

/1/ SECTION 64A, 30 STAT. 563 (AS AMENDED BY ACT OF JUNE 22, 1938,
52 STAT. 874, AND ACT OF JULY 30, 1956, 70 STAT. 725), 11 U.S.C.
104(A), PROVIDES IN RELEVANT PART: 

"THE DEBTS TO HAVE PRIORITY, IN ADVANCE OF THE PAYMENT OF DIVIDENDS
TO CREDITORS, AND TO BE PAID IN FULL OUT OF BANKRUPT ESTATES, AND THE
ORDER OF PAYMENT, SHALL BE . . . (2) WAGES AND COMMISSIONS, NOT TO
EXCEED $600 TO EACH CLAIMANT, WHICH HAVE BEEN EARNED WITHIN THREE
MONTHS BEFORE THE DATE OF THE COMMENCEMENT OF THE PROCEEDING, DUE TO
WORKMEN, SERVANTS, CLERKS, OR TRAVELING OR CITY SALESMEN ON SALARY OR
COMMISSION BASIS, WHOLE OR PART TIME, WHETHER OR NOT SELLING
EXCLUSIVELY FOR THE BANKRUPT; AND FOR THE PURPOSES OF THIS CLAUSE, THE
TERM 'TRAVELING OR CITY SALESMAN' SHALL INCLUDE ALL SUCH SALESMEN,
WHETHER OR NOT THEY ARE INDEPENDENT CONTRACTORS SELLING THE PRODUCTS OR
SERVICES OF THE BANKRUPT ON A COMMISSION BASIS, WITH OR WITHOUT A
DRAWING ACCOUNT OR FORMAL CONTRACT . . . . " 

/2/  THE CASES IN THE LOWER COURTS ARE IN AGREEMENT AS TO THE
PURPOSE OF SEC. 64A(2).  SEE 3 COLLIER ON BANKRUPTCY 64.201, AT 2112,
NN. 7-9 AND RELATED TEXT (14TH ED., 1967). 

/3/  THE PLAN ALSO PROVIDES THAT NO PERSON CLAIMING BY OR THROUGH
ANY PARTICIPANT SHALL HAVE ANY RIGHT, TITLE, OR INTEREST IN OR TO THE
ANNUITY FUND.  SECTION 9(F) OF THE PLAN IMPOSES ADDITIONAL LIMITATIONS:
"THE BENEFITS PAYABLE TO PARTICIPANTS OR BENEFICIARIES UNDER THIS PLAN
CANNOT BE ASSIGNED AND SHALL NOT BE LIABLE TO ATTACHMENT, GARNISHMENT
OR OTHER PROCESS, AND SHALL NOT BE TAKEN, APPROPRIATED OR APPLIED BY
ANY LEGAL OR EQUITABLE PROCESS, OR BY OPERATION OF LAW, TO PAY ANY DEBT
OR LIABILITY OF THE PARTICIPANT OR OF ANY BENEFICIARY OR NEXT-OF-KIN
WHO MAY HAVE A RIGHT THEREUNDER, EITHER BEFORE OR AFTER PAYMENT." 

IT SEEMS AGREED IN THIS CASE THAT THE EMPLOYER CONTRIBUTIONS TO THE
FUND ARE NOT TAXABLE TO THE EMPLOYEE AT THE TIME THEY ARE MAE, BUT ONLY
WHEN LATER RECEIVED AS BENEFITS. 

/4/  THE HISTORY OF SEC. 64A(2) IS DEALT WITH IN BOTH THE MAJORITY
AND DISEENTING OPINIONS IN UNITED STATES V. EMBASSY RESTAURANT, 359
U.S. 29 (1959).  FOR A MORE COMPLETE CONSIDERATION SEE 3 COLLIER ON
BANKRUPTCY 64.01, 64.201 (14TH ED., 1967). 

/5/  ACT OF NOVEMBER 28, 81 STAT. 511. 

/6/  H.R. 2076, 90TH CONG., 1ST SESS. (1967); H.R. 991, 89TH CONG.,
1ST SESS. (1965); H.R. 1784, 88TH CONG., 1ST SESS. (1963); H.R. 66,
88TH CONG., 1ST SESS. (1963); H.R. 2274, 87TH CONG., 1ST SESS. (1961);
AND H.R. 9831, 86TH CONG., 2D SESS. (1960). 

/7/  IT IS INSTRUCTIVE THAT WORKMEN'S COMPENSATION CLAIMS WERE NOT
PROVABLE IN BANKRUPTCY UNTIL 1934, WHEN THEY WERE GIVEN A SEVENTH
PRIORITY.  IN 1938 THE PRIORITY FOR COMPENSATION CLAIMS WAS ABOLISHED. 
MOREOVER, TAXES AND SOCIAL SECURITY CONTRIBUTIONS WHICH ARE WITHHELD
FROM WAGES ARE ENTITLED TO A FOURTH PRIORITY AS TAXES RATHER THAN A
SECOND PRIORITY AS WAGES. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

I DO NOT AGREE THAT UNITED STATES V. EMBASSY RESTAURANT, INC., 359
U.S. 29 (1959), CONTROLS THIS CASE.  I BELIEVE THE EMPLOYER'S UNPAID
CONTRIBUTIONS TO THE EMPLOYEES' ANNUITY PLAN ARE "WAGES . . . DUE TO
WORKMEN" WITHIN SEC. 64A(2) OF THE BANKRUPTCY ACT.  THOSE CONTRIBUTIONS
ACCRUED AND UNPAID WITHIN THREE MONTHS BEFORE THE COMMENCEMENT OF THE
BANKRUPTCY PROCEEDINGS ARE ENTITLED TO THE STATUTORY PRIORITY. 

IN THIS CASE, THE EMPLOYEES AND THE EMPLOYER AGREED, IN A COLLECTIVE
BARGAINING AGREEMENT, THAT THE EMPLOYER WOULD COMPENSATE EACH EMPLOYEE
WITH STIPULATED WAGES AND, ADDITIONALLY, $4 PER DAY "FOR EACH DAY
WORKED OR EACH HOLIDAY.  . . . "  THE LATTER SUM, INSTEAD OF BEING PAID
DIRECTLY TO THE EMPLOYEES, WAS REMITTED TO TRUSTEES OF AN ANNUITY
PLAN.  IN THE ACCOUNTS OF THE PLAN, THE SUM REMITTED FOR EACH EMPLOYEE,
AND MEASURED BY HIS DAYS OF WORK, WAS CREDITED TO THAT EMPLOYEE.  THE
EMPLOYEE WAS ENTITLED TO RECEIVE THE SUM CREDITED TO HIS ACCOUNT UPON
RETIREMENT FROM THE INDUSTRY AT AGE 60, DEATH, PERMANENT DISABILITY,
ENTRANCE INTO THE ARMED FORCES, OR CEASING TO BE A PARTICIPANT UNDER
THE PLAN BY LEAVING THE ELECTRICAL INDUSTRY OR BY ACCEPTING EMPLOYEMENT
WITH SOME ELECTRICAL COMPANY THAT IS NOT COVERED BY THE COLLECTIVE
BARGAINING AGREEMENT. 

IT IS UNMISTAKABLY CLEAR (1) THAT THE SUMS IN QUESTION WERE TO BE
PAID AS PART OF THE WAGE BARGAIN BETWEEN EMPLOYER AND EMPLOYEE; (2)
THAT THE SUM DUE EACH EMPLOYEE WAS SPECIFICALLY RELATED TO AND MEASURED
BY HIS WORK; (3) THAT THE SUM WHICH EACH EMPLOYEE EARNED WAS ACCOUNTED
FOR SEPARATELY AND INDIVIDUALLY; HE WAS ENTITLED TO THE AMOUNT PAID TO
THE TRUSTEE ON ACCOUNT OF HIS INDIVIDUAL LABOR; AND (4) THAT
INEVITABLY, AS SURE AS DEATH, THERE WAS TO COME A POINT OF TIME WHEN
THE SUM REMITTED TO THE TRUSTEE ON ACCOUNT OF EACH INDIVIDUAL'S WORK
WOULD BE PAID TO THAT INDIVIDUAL OR HIS HEIRS. 

IN MY JUDGMENT, IT IS IMPOSSIBLE TO DISTINGUISH, ON THE BASIS OF THE
PURPOSE OF THE PRIORITY PROVISIONS OF THE BANKRUPTCY ACT, BETWEEN THESE
PAYMENTS TO THE ANNUITY PLAN AND DIRECT PAYMENTS TO THE EMPLOYEE FOR
HIS LABORS.  THE COURT, HOWEVER, HOLDS THAT PAYMENTS TO THE PLAN DO NOT
SATISFY THE "MANIFEST PURPOSE OF THE PRIORITY," AS THAT PURPOSE WAS
EXPLAINED IN EMBASSY RESTAURANT.  THIS PURPOSE, THE COURT SAYS, WAS TO
ENABLE EMPLOYEES, UPON THE BANKRUPTCY OF THEIR EMPLOYER, PROMPTLY TO
SECURE MONEY DIRECTLY DUE THEM IN BACK WAGES AND THEREBY TO ALLEVIATE
THE HARDSHIP THAT UNEMPLOYMENT BRINGS.  EMBASSY RESTAURANT
DEMONSTRATES, THE COURT SAYS, THAT SINCE THE CONTRIBUTIONS TO THE
ANNUITY PLAN WERE NOT IMMEDIATLEY PAYABLE TO THE EMPLOYEES UPON
BANKRUPTCY, THEY DO NOT FALL WITHIN THE DEFINITION OF "WAGES" FOR
PRIORITY PURPOSES. 

BUT THE PRESENT CASE IS MATERIALLY DIFFERENT FROM EMBASSY
RESTAURANT.  IN THAT CASE, THE EMPLOYEE WAS NEVER ENTITLED TO RECEIVE
THE SUMS WHICH WERE PAID INTO THE FUND ON ACCOUNT OF HIS LABOR.  THESE
SUMS AND THE SUMS PAID BY THE EMPLOYER FOR ALL OTHER EMPLOYEES WERE
USED TO PROVIDE LIFE INSURANCE, SICK BENEFITS, HOSPITAL AND SURGICAL
PAYMENTS, AND OTHER BENEFITS.  AN EMPLOYEE WAS NEVER ENTITLED TO DEMAND
AND RECEIVE PAYMENT OF SUMS THAT HE HAD EARNED.  THESE SUMS WERE NOT
CREDITED TO HIM TO BE PAID UPON HIS DEATH OR RETIREMENT OR OTHER
CONTINGENCIES.     IN A DISSENTING OPINION IN THAT CASE, MR. JUSTICE
BLACK (JOINTED BY THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS) ARGUED
THAT THE MAJORITY MISCONCEIVED THE NATURE OF THE PAYMENTS INTO THE FUND
IN EMBASSY RESTAURANT AND THE PURPOSE OF THE PRIORITY FOR WAGES.  BUT
WE NEED NOT QUARREL WITH THE COURT'S CONCLUSIONS IN EMBASSY RESTAURANT,
FOR PURPOSES OF THE PRESENT CASE.  HERE, IT IS ENTIRELY CLEAR THAT THE
SUMS PAID AND PAYABLE INTO THE FUND WERE PAYABLE TO THE INDIVIDUAL
EMPLOYEE.  THEY WERE HIS.  THEY WERE PART OF HIS WAGES.  ONLY THE TIME
OF RECEIPT WAS DEFERRED UNTIL RETIREMENT AT AGE 60, SEPARATION FROM THE
INDUSTRY, DEATH, ETC.     THERE IS NOTHING WHATEVER IN SEC. 64 TO
INDICATE, AS THE COURT WOULD HAVE US BELIEVE, THAT "WAGES" LOSE THEIR
PRIORITY POSITION IF THEY ARE NOT IMMEDIATELY PAYABLE UPON THE EVENT OF
BANKRUPTCY.  THERE IS NO BASIS WHATEVER, EXCEPT THIS COURT'S IPSE DIXIT
IN THIS CASE, TO SAY THAT THE PRIORITY IS AVAILABLE ONLY TO PROVIDE
"IMMEDIATE SUPPORT FOR WORKMEN DURING THE PERIOD OF FINANCIAL
DISTRESS."  EMBASSY RESTAURANT IS NOT AUTHORITY FOR THIS.  EMBASSY
RESTAURANT IS AUTHORITY FOR THE PROPOSITION THAT WHEN THE "WAGES" ARE
NEVER PAYABLE TO THE EMPLOYEE, BUT BENEFIT HIM ONLY THROUGH PROVIDING
LIFE INSURANCE OR VARIOUS TYPES OF SERVICES, THE PRIORITY IS NOT
APPLICABLE.  THAT IS NOT THE PRESENT CASE. 

I TAKE IT THAT THE PURPOSE OF THE "WAGES" PRIORITY-- JUST AS IN THE
CASE OF ALL OTHER PRIORITIES-- IS TO GIVE A PREFERRED STATUS TO CLAIMS
DEEMED PARTICULARLY MERITORIOUS, SO THAT THE CHANCES THAT THE CLIMANT
WILL RECOVER THE SUMS DUE HIM ON SUCH CLAIMS WILL BE ENHANCED.  "WAGES
. . . DUE TO WORKMEN" ARE IN THIS CATEGORY, AS ARE OTHER CLAIMS SUCH AS
COSTS OF ADMINISTERING THE BANKRUPTCY ESTATE AND TAXES OWED TO THE
UNITED STATES OR ANY STATE.  THE LOWER COURT CASES WHICH THE MAJORITY
CLAIMS ARE "IN AGREEMENT" AS TO THE PURPOSE OF THE "WAGES" PRIORITY /1/
ARE PROBABLY NOT IN AGREEMENT WITH EACH OTHER AT ALL AND CERTAINLY NOT
IN AGREMENT WITH THE MAJORITY'S RESTRICTIVE DEFINITION OF THAT
PURPOSE.  IN RE LAWSAM ELECTRIC CO., INC. 300 F. 736 (D.C.N.Y.), JUDGE
LEARNED HAND SAID:  "THE STATUTE WAS INTENDED TO FAVOR THOSE WHO COULD
NOT BE EXPECTED TO KNOW ANYTHING OF THE CREDIT OF THEIR EMPLOYER, BUT
MUST ACCEPT A JOB AS IT COMES, TO WHOM THE PERSONAL FACTOR IN
EMPLOYMENT IS NOT A PRACTICABLE CONSIDERATION."  IN RE ESTEY, 6
F.SUPP.  570 (D.C.N.Y), IT WAS SAID THAT "THE INTENTION OF CONGRESS WAS
PLAINLY TO GIVE SPECIAL PROTECTION TO A CLASS OF WAGE-EARNERS WHO
GENERALLY HAVE NO SUBSTANTIAL SAVINGS OR OTHER RESERVES TO FALL BACK ON
IN CASE OF ADVERSITY AND THEREFORE CANNOT AFFORD TO LOSE."  CERTAINLY
NEITHER OF THESE STATEMENTS, WHICH THE MAJORITY CITES IN SUPPORT OF ITS
DEFINITION OF THE PURPOSE OF THE "WAGES" PRIORITY, CONSTITUTES
AUTHORITY FOR THE PROPOSITION THAT THE PRIORITY WAS INTENDED ONLY TO
ALLEVIATE THE HARDSHIP CAUSED BY UNEMPLOYMENT FOLLOWING IMMEDIATELY
UPON THE BANKRUPTCY OF AN EMPLOYER.  AS A MATTER OF FACT, RECOGNIZING
THE PRIORITY DOES NOT ASSURE IMMEDIATE PAYMENT.  PAYMENT IS MADE UPON
INTERIM OR FINAL DISTRIBUTION OF THE ESTATE.  PRIORITY MERELY INCREASES
THE PROSPECTS OF RECOVERY.  /2/ 

THE COURT'S DECISION IN THIS CASE, IN MY OPINION, DEPRIVES THE
WORKERS HERE CONCERNED OF THE PROTECTION WHICH CONGRESS ACCORDED THEIR
CLAIMS.  WE SHOULD REVERSE THE JUDGMENT BELOW. 

/1/  SEE ANTE, AT 227, N. 2. 

/2/  EVEN IF I WERE TO ACCEPT THE MAJORITY'S DEFINITION OF THE
PURPOSE OF THE "WAGES" PRIORITY, I STILL COULD NOT AGREE WITH THE
DECISION TO AFFIRM.  FOR THE MAJORITY INDULGES IN A MAJOR, UNEXPLAINED,
ASSUMPTION WITH WHICH I DONOT AGREE:  THE MAJORITY ASSUMES, WITHOUT ANY
BASIS THAT I CAN FIND IN THE RECORD OR ANYWHERE ELSE, THAT UPON THE
BANKRUPTCY OF AN EMPLOYER AN EMPLOYEE IS LIKELY TO SUFFER THE HARDSHIP
OF UNEMPLOYMENT YET UNLIKELY TO SUFFER THE HARDSHIP OF ACCEPTING A JOB
OUTSIDE THE ELECTRICAL INDUSTRY OR WITH AN EMPLOYER WHO IS NOT COVERED
BY THE COLLECTIVE BARGAINING CONTRACT AND ANNUITY PLAN.  OF COURSE, IF
AN EMPLOYEE DOES CHOOSE, UPON THE BANKRUPTCY OF HIS EMPLOYER, TO SEEK
WORK WITH AN EMPLOYER NOT COVERED BY THE CONTRACT, HE CEASES TO
PARTICIPATE IN THE ANNUITY PLAN AND MAY, UNDER THE TERMS OF THAT PLAN,
CLAIM THE MONIES THAT HAVE ACCRUED IN HIS ACCOUNT.  IN THIS PLAUSIBLE
AND, I WOULD SUSPECT, COMMON SITUATION, THE EMPLOYEE RECEIVES HIS
ANNUITY ACCOUNT "IMMEDIATELY" AFTER THE BANKRUPTCY.  I SEE NOT
SIGNIFICANT DIFFERENCE-- AND CERTAINLY THE MAJORITY SUGGESTS NONE--
BETWEEN PAYMENTS THAT MAY ALLEVIATE THE HARDSHIP OF UNEMPLOYMENT CAUSED
BY BANKRUPTCY AND PAYMENTS THAT MAY ALLEVIATE THE HARDSHIP OF
UNATTRACTIVE EMPLOYMENT AFTER A DISCHARGE CAUSED BY BANKRUPTCY. 

HAROLD STERN ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF FOR PETITIONER JOINT INDUSTRY BOARD OF THE ELECTRICAL INDUSTRY
WAS NORMAN ROTHFIELD.  MAX SCHWARTZ FILED A BRIEF FOR PETITIONER
TRUSTEE IN BANKRUPTCY OF A & S ELECTRIC CORP. 

LAWRENCE G. WALLACE ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
ROGOVIN, HARRIS WEINSTEIN, AND CROMBIE J. D. GARRETT. 

J. ALBERT WOLL, LAURENCE GOLD, AND THOMAS E. HARRIS FILED A BRIEF
FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS, AS AMICUS CURIAE, URGING REVERSAL. 
..END :




CARAFAS V. LAVALLEE, 391 U.S. 234 


       CARAFAS V. LAVALLEE, WARDEN. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT. 

        NO. 71.  ARGUED MARCH 27, 1968.-- DECIDED MAY 20, 1968. 


IN 1960 PETITIONER WAS CONVICTED IN NEW YORK STATE CRIMINAL
PROCEEDINGS AND HIS SENTENCE WAS AFFIRMED ON APPEAL WITHOUT OPINION
OVER HIS CONTENTION THAT ILLEGALLY OBTAINED EVIDENCE HAD BEEN
INTRODUCED AGAINST HIM AT HIS TRIAL.  RENEWING THAT CLAIM, PETITIONER
THEREAFTER SOUGHT RELIEF IN THE FEDERAL AND STATE COURTS BY WRIT OF
HABEAS CORPUS.  THE PETITION IN THE PRESENT CASE WAS FILED IN JUNE
1963, WHILE PETITIONER WAS IN CUSTODY.  ON NOVEMBER 5, 1965, THE
DISTRICT COURT, AFTER A HEARING ON THE MERITS ORDERED BY THE COURT OF
APPEALS, DISMISSED THE PETITIONER.  THE DISTRICT COURT ISSUED A
CERTIFICATE OF PROBABLE CUASE.  A NOTICE OF APPEAL WAS FILED, AND THE
PETITIONER MADE APPLICATION IN THE COURT OF APPEALS FOR AN ORDER
ALLOWING HIM TO APPEAL IN FORMA PAUPERIS.  THE STATE OPPOSED THE
APPLICATION AND MOVED TO DISMISS THE APPEAL AS WITHOUT MERIT. 
PETITIONER, REPLYING, OPPOSED THE MOTION TO DISMISS AND RENEWED HIS
APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS.  THE COURT OF
APPEALS ENTERED THE FOLLOWING ORDER WITH RESPECT THERETO:  "APPLICATION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS.  APPLICATION DENIED.  MOTION TO
DISMISS APPEAL GRANTED."  ON MARCH 6, 1967, ABOUT TWO WEEKS AFTER THE
COURT OF APPEALS DENIED A REHEARING, PETITIONER'S SENTENCE EXPIRED AND
HE WAS RELEASED FROM CUSTODY.  ON MARCH 20, 1967, PETITIONER FILED A
PETITION FOR A WRIT OF CERTIORARI IN THIS COURT, WHICH WAS GRANTED
OCTOBER 16, 1967.  RESPONDENT CONTENDS THAT EXPIRATION OF PETITIONER'S
SENTENCE HAS MOOTED THE CASE AND THAT IN ANY EVENT PEITITONER WAS NOT
WRONGFULLY DENIED A FULL APPEAL BY THE COURT OF APPEALS AFTER THE
DISTRICT COURT HAD GRANTED A CERTIOFICATE OF PROBABLE CAUSE.  HELD: 

1.  THE CASE IS NOT MOOT.  PP. 237-240. 

(A) BECAUSE OF THE "DISABILITIES OR BURDENS (WHICH) MAY FLOW FROM"
PETITIONER'S CONVICTION, HE HAS "A SUBSTANTIAL TAKE IN THE JUDGMENT OF
CONVICTION WHICH SURVIVES THE SATISFACTION OF THE SENTENCE IMPOSED ON
HIM."  FISWICK V. UNITED STATES, 329 U.S. 211, 222 (1946).  PP. 237
238. 

(B) UNDER THE FEDERAL HABEAS CORPUS STATUTORY SCHEME, ONCE FEDERAL
JURISDICTION HAS ATTACHED IN THE DISTRICT COURT, IT IS NOT DEFEATED BY
PETITIONER'S RELEASE BEFORE COMPLETION OF THE PROCEEDINGS ON THE
APPLICATION.  THOUGH THE FEDERAL HABEAS CORPUS STATUTE REQUIRES THAT
THE APPLICANT BE "IN CUSTODY" WHEN THE HABEAS CORPUS APPLICATION IS
FILED, THE RELIEF THAT MAY BE GRANTED IS NOT LIMITED TO DISCHARGING THE
APPLICANT FROM PHYSICAL CUSTODY, THE STATUTE PROVIDING THAT "THE COURT
SHALL . . . DISPOSE OF THE MATTER AS LAW AND JUSTICE REQUIRE."  28
U.S.C. 2243.  PARKER V. ELLIS, 362 U.S. 574 (1960), OVERRULED.  PP. 238
240. 

2.  WHERE A CERTIFICATE OF PROBABLE CAUSE HAS BEEN GRANTED, THE
COURT OF APPEALS MUST ALLOW AN APPEAL IN FORMA PAUPERIS (ASSUMING A
REQUISITE SHOWING OF POVERTY), MUST CONSIDER THE APPEAL ON ITS MERITS,
AND MUST INCLUDE IN ITS ORDER ENOUGH TO DEMONSTRATE THE BASIS FOR ITS
ACTION, AS THIS COURT HELD IN NOWAKOWSKI V. MARONEY, 386 U.S.542.  THAT
CASE, THOUGH DECIDED AFTER THE COURT OF APPEALS' SUMMARY DISMISSAL OF
PETITIONER'S APPEAL, GOVERNS THIS CASE WHICH HAD NOT BEEN CONCLUDED AT
THE TIME OF THAT DECISION.  PP. 240-242. 

VACATED AND REMANDED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE HAS A LENGTH PROCEDURAL HISTORY.  IN 1960, PETITIONER WAS
CONVICTED OF BURGLARY AND GRAND LARCENY IN NEW YORK STATE COURT
PROCEEDINGS AND WAS SENTENCED TO CONCURRENT TERMS OF THREE TO FIVE
YEARS.  ON DIRECT APPEAL (FOLLOWING MAPP V. OHIO, 367 U.S. 643 (1961)),
PETITIONER CALIMED THAT ILLEGALLY OBTAINED EVIDENCE HAD BEEN INTRODUCED
AGAINST HIM AT TRIAL.  THE APPELLATE DIVISION AFFIRMED THE CONVICTION
WITHOUT OPINION, PEOPLE V. CARAFAS, 14 APP.DIV.2D 886, 218 N.Y.S.2D 635
(1961), AS DID THE NEW YORK COURT OF APPEALS, 11 N.Y.2D 891, 182 N.E.2D
413 (1962).  /1/  THIS COURT DENIED A PETITIONER FOR A WRIT OF
CERTIORARI.  372 U.S. 948 (1963). 

THEREAFTER, COMPLEX PROCEEDINGS TOOK PLACE IN WHICH PETITIONER
SOUGHT IN BOTH FEDERAL AND STATE COURTS TO OBTAIN RELIEF BY WRIT OF
HABEAS CORPUS, BASED ON HIS CLAIM THAT ILLEGALLY SEIZED EVIDENCE WAS
USED AGAINST HIM.  334 F.2D 331 (1964); PETITION FOR WRIT OF CERTIORARI
DENIED, 381 U.S. 951 (1965).  ON NOVEMBER 5, 1965, THE UNITED STATES
DISTRICT COURT, AS DIRECTED BY THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT (334 F.2D 331 (1964)), HEARD PETITIONER'S CLAIM ON
THE MERITS.  IT DISMISSED HIS PETITION ON THE GROUND THAT HE HAD FAILED
TO SHOW A VIOLATION OF HIS FOURTH AMENDMENT RIGHTS.  PETITIONER
APPEALED IN CIRCUMSTANCES HEREINAFTER RELATED.  THE COURT OF APPEALS
FOR THE SECOND CIRCUIT DISMISSED THE APPEAL.  ON MARCH 20, 1967, A
PETITION FOR A WRIT OF CERTIORARI WAS FILED HERE.  WE GRANTED THE
PETITION, 389 U.S. 896 (1967), TO CONSIDER WHETHER, BECAUSE OF FACTS TO
WHICH WE LATER REFER, THE COURT OF APPEALS' DISMISSAL CONFORMED TO OUR
HOLDING IN NOWAKOWSKI V. MARONEY, 386 U.S. 542 (1967).  BUT FIRST WE
MUST CONSIDER THE STATE'S CONTENTION THAT THIS CASE IS NOW MOOT BECAUSE
PETITIONER HAS BEEN UNCONDITIONALLY RELEASED FROM CUSTODY. 

PETITIONER APPLIED TO THE UNITED STATES DISTRICT COURT FOR A WRIT OF
HABEAS CORPUS IN JUNE 1963.  HE WAS IN CUSTODY AT THAT TIME.  ON MARCH
6, 1867, PETITIONER'S SENTENCE EXPIRED, /2/  AND HE WAS DISCHARGED FROM
THE PAROLE STATUS IN WHICH HE HAD BEEN SINCE OCTOBER 4, 1964.  WE
ISSUED OUR WRIT OF CERTIORARI ON OCTOBER 16, 1967 (389 U.S. 896). 

THE ISSUE PRESENTED, THEN, IS WHETHER THE EXPIRATION OF PETITIONER'S
SENTENCE, BEFORE HIS APPLICATION WAS FINALLY ADJUDICATED AND WHILE IT
WAS AWAITING APPALLATE REVIEW, TERMINATES FEDERAL JURISDICTION WITH
RESPECT TO THE APPLICATION.  RESPONDENT RELIES UPON PARKER V. ELLIS,
362 U.S. 574 (1960), AND UNLESS THIS CASE IS OVERRULED, IT STANDS AS AN
INSUPERABLE BARRIER TO OUR FURTHER CONSIDERATION OF PETITIONER'S CAUSE
OR TO THE GRANT OF RELIEF UPON HIS PETITION FOR A WRIT OF HABEAS
CORPUS. 

PARKER V. ELLIS HELD THAT WHEN A PRISONER WAS RELEASED FROM STATE
PRISON AFTER HAVING SERVED HIS FULL SENTENCE, THIS COURT COULD NOT
PROCEED TO ADJUDICATE THE MERITS OF THE CLAIM FOR RELIEF ON HIS
PETITION FOR HABEAS CORPUS WHICH HE HAD FILED WITH THE FEDERAL DISTRICT
COURT.  THIS COURT HELD THAT UPON PETITIONER'S UNCONDITIONAL RELEASE
THE CASE BECAME "MOOT."  PARKER WAS ANNOUNCED IN A PER CURIAM
DECISION.  /3/ 

IT IS CLEAR THAT PETITIONER'S CLAUSE IS NOT MOOT.  IN CONSEQUENCE OF
HIS CONVICTION, HE CANNOT ENGAGE IN CERTAIN BUSINESSES; /4/  HE CANNOT
SERVE AS AN OFFICIAL OF A LABOR UNION FOR A SPECIFIED PERIOD OF TIME;
/5/  HE CANNOT VOTE IN ANY ELECTION HELD IN NEW YORK STATE; /6/  HE
CANNOT SERVE AS A JUROR.  /7/  BECAUSE OF THESE "DISABILITIES OR
BURDENS (WHICH) MAY FLOW FROM" PETITIONER'S CONVICTION, HE HAS "A
SUBSTANTIAL STAKE IN THE JUDGMENT OF CONVICTION WHICH SURVIVES THE
SATISFACTION OF THE SENTENCE IMPOSED ON HIM."  FISWICK V. UNITED
STATES, 329 U.S. 211, 222 (1946).  ON ACCOUNT OF THESE "COLLATERAL
CONSEQUENCES,"  /8/  THE CASE IS NOT MOOT.  GINSBERG V. NEW YORK, 390
U.S. 629, 633-634, N. 2 (1968); FISWICK V. UNITED STATES, SUPRA, AT
222, N. 10; UNITED STATES V. MORGAN, 346 U.S. 502, 512-513 (1954). 

THE SUBSTANTIAL ISSUE, HOWEVER, WHICH IS POSED BY PARKER V. ELLIS,
IS NOT MOOTNESS IN THE TECHNICAL OR CONSTITUTIONAL SENSE, BUT WHETHER
THE STATUTE DERINING THE HABEAS CORPUS JURISDICTION OF THE FEDERAL
JUDICIARY IN RESPECT OF PERSONS IN STATE CUSTODY IS AVAILABLE HERE.  IN
PARKER V. ELLIS, AS IN THE PRESENT CASE, PETITIONER'S APPLICATION WAS
FILED IN THE FEDERAL DISTRICT COURT WHEN HE WAS IN STATE CUSTODY, AND
IN BOTH THE PETITIONER WAS UNCONDITIONALLY RELEASED FROM STATE CUSTODY
BEFORE HIS CASE COULD BE HEARD IN THIS COURT.  FOR THE REASONS WHICH WE
HERE SUMMARIZE AND WHICH ARE STATED AT LENGTH IN THE DISSENTING
OPINIONS IN PARKER V. ELLIS, WE CONCLUDE THAT UNDER THE STATUTORY
SCHEME, ONCE THE FEDERAL JURISDICTION HAS ATTACHED IN THE DISTRICT
COURT, IT IS NOT DEFEATED BY THE RELEASE OF THE PETITIONER PRIOR TO
COMPLETION OF PROCEEDINGS ON SUCH APPLICATION. 

THE FEDERAL HABEAS CORPUS STATUTE REQUIRES THAT THE APPLICANT MUST
BE "IN CUSTODY" WHEN THE APPLICATION FOR HABEAS CORPUS IS FILED.  THIS
IS REQUIRED NOT ONLY BY THE REPEATED REFERENCES IN THE STATTUE, /9/
BUT ALSO BY THE HISTORY OF THE GREAT WRIT.  /10/  ITS PROVINCE, SHAPED
TO GUARANTEE THE MOST FUNDAMENTAL OF ALL RIGHTS, /11/  IS TO PROVIDE AN
EFFECTIVE AND SPEEDY INSTRUMENT BY WHICH JUDICIAL INQUIRY MAY BE HAD
INTO THE LEGALITY OF THE DETENTION OF A PERSON.  SEE PEYTON V. ROWE,
ANTE, P. 54.  /12/ 

BUT THE STATUTE DOES NOT LIMIT THE RELIEF THAT MAY BE GRANTED TO
DISCHARGE OF THE APPLICANT FROM PHYSICAL CUSTODY.  ITS MANDATE IS BROAD
WITH RESPECT TO THE RELIEF THAT MAY BE GRANTED.  IT PROVIDES THAT "(THE
COURT SHALL . . . DISPOSE OF THE MATTER AS LAW AND JUSTICE REQUIRE." 
28 U.S.C. 2243.  THE 1966 AMENDMENTS TO THE HABEAS CORPUS STATUTE SEEM
SPECIFICALLY TO CONTEMPLATE THE POSSIBILITY OF RELIEF OTHER THAN
IMMEDIATE RELEASE FROM PHYSICAL CUSTODY.  AT ONE POINT, THE NEW SEC.
2244(B) (1964 ED., SUPP II) SPEAKS IN TERMS OF "RELEASE FROM CUSTODY OR
OTHER REMEDY."  SEE PEYTON V. ROWE, SUPRA; WALKER V. WAINWRIGHT, 390
U.S. 335 (1968).  CF. EX PARTE HULL, 312 U.S. 546 (1941). 

IN THE PRESENT CASE, PETITIONER FILED HIS APPLICATION SHORTLY AFTER
JUNE 20, 1963, WHILE HE WAS IN CUSTODY.  HE WAS NOT RELEASED FROM
CUSTODY UNTIL MARCH 6, 1967, TWO WEEKS BEFORE HE FILED HIS PETITION FOR
CERTIORARI HERE.  DURING THE INTERVENING PERIOD HIS APPLICATION WAS
UNDER CONSIDERATION IN VARIOUS COURTS.  PETITIONER IS ENTITLED TO
CONSIDERATION OF HIS APPLICATION FOR RELIEF ON ITS MERITS.  HE IS
SUFFERING, AND WILL CONTINUE TO SUFFER, SERIOUS DISABILITIES BECAUSE OF
THE LAW'S COMPLEXITIES AND NOT BECAUSE OF HIS FAULT, IF HIS CLAIM THAT
HE HAS BEEN ILLEGALLY CONVICTED IS MERITORIOUS.  THERE IS NO NEED IN
THE STATUTE, THE CONSTITUTION, OR SOUND JURISPRUDENCE FOR DENYING TO
PETITIONER HIS ULTIMATE DAY IN COURT. 

THIS CASE ILLUSTRATES THE VALIDITY OF THE CHIEF JUSTICE'S CRITICISM
THAT THE DOCTRINE OF PARKER SIMPLY AGGRAVATES THE HARDSHIPS THAT MAY
RESULT FROM THE "INTOLERABLE DELAYS) IN AFFORDING JUSTICE."  PARKER V.
ELLIS, SUPRA, AT 585 (DISSENTING OPINION).  THE PETITIONER IN THIS CASE
WAS SENTENCED IN 1960.  HE HAS BEEN ATTEMPTING TO LITIGATE HIS
CONSTITUTIONAL CLAIM EVER SINCE.  HIS PATH HAS BEEN LONG-- PARTLY
BECAUSE OF THE INEVITABLE DELAYS IN OUR COURT PROCESSES AND PARTLY
BECAUSE OF THE REQUIREMENT THAT HE EXHAUST STATE REMEDIES.  /13/  HE
SHOULD NOT BE THWARTED NOW AND REQUIRED TO BEAR THE CONSEQUENCES OF
ASSERTEDLY UNLAWFUL CONVICTION SIMPLY BECAUSE THE PATH HAS BEEN SO LONG
THAT HE HAS SERVED HIS SENTENCE.  /14/  THE FEDERAL HABEAS CORPUS
STATUTE DOES NOT REQUIRE THIS RESULT, AND PARKER V. ELLIS MUST BE
OVERRULED. 

WE TURN NOW TO THE SUBTANCE OF THE QUESTION AS TO WHICH WE GRANTED
CERTIORARI.  PETITIONER'S FIRST HEARING ON THE MERITS IN THE FEDERAL
DISTIRCT COURT WAS HELD ON NOVEMBER 5, 1965.  /15/  THE DISTRICT COURT
DISMISSED THE PETITION FOR HABEAS CORPUS, DENYING PETITIONER'S CLAIM
THAT EVIDENCE USED AGAINST HIM HAD BEEN OBTAINED BY AN ILLEGAL SEARCH
AND SEIZURE.  THE DISTRICT COURT ISSUED A CERTIFICATE OF PROBABLE CAUSE
PURSUANT TO 28 U.S.C. 2253 AND ORDERED THAT THE NOTICE OF APPEAL BE
FILED WITHOUT PREPAYMENT OF THE PRESCRIBED FEE.  A NOTICE OF APPEAL WAS
FILED, AND THE PETITIONER APPLIED IN THE COURT OF APPEALS FOR AN ORDER
ALLOWING HIM TO APPEAL IN FORMA PAUPERIS.  28 U.S.C. 1915.  THE STATE
OPPOSED PETITIONER'S APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
AND MOVED TO DISMISS THE APPEAL ON THE GROUND THAT IT WAS WITHOUT
MERIT.  PETITIONER FILED A REPLY IN JULY 1966 IN WHICH HE OPPOSED THE
STATE'S MOTION TO DISMISS AND IN WHICH HE RENEWED HIS PLEA FOR LEAVE TO
APPEAL IN FORMA PAUPERIS.  ON FEBRUARY 3, 1967, THE COURT OF APPEALS
ENTERED THE FOLLOWING ORDER:  "APPLICATION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS.  APPLICATION DENIED.  MOTION TO DISMISS APPEAL
GRANTED."  REHEARING WAS THEREAFTER DENIED.  IT IS THIS ACTION OF THE
COURT OF APPEALS THAT BRINGS INTO ISSUE OUR DECISION IN NOWAKOWSKI V.
MARONEY, 386 U.S. 542 (APRIL 10, 1967). 

IN NOWAKOWSKI, WE HELD THAT "WHEN A DISTRICT JUDGE GRANTS . . . A
CERTIFICATE (OF PROBABLE CAUSE), THE COURT OF APPEALS MUST GRANT AN
APPEAL IN FORMA PAUPERIS (ASSUMING THE REQUISITE SHOWING OF POVERTY),
AND PROCEED TO A DISPOSITION OF THE APPEAL IN ACCORD WITH ITS ORDINARY
PROCEDURE."  AT 543.  ALTHOUGH NOWAKOWSKI WAS DECIDED AFTER THE COURT
OF APPEALS DISMISSED PETITIONER'S APPEAL, ITS HOLDING APPLIES TO A
HABEAS CORPUS PROCEEDING WHICH, LIKE THIS ONE, WAS NOT CONCLUDED AT THE
TIME NOWAKOWSKI WAS DECIDED.  CF. ESKRIDGE V. WASHINGTON PRISON BOARD,
357 U.S. 214 (1958); SEE ALSO LINKLETTER V. WALKER, 381 U.S. 618, 628,
N. 13 AND 639, N. 20 (1965); TEHAN V. SHOTT, 382 U.S. 406, 416 (1966). 

RESPONDENT ARGUES THAT THE DENIAL OF THE MOTION TO PROCEED IN FORMA
PAUPERIS BY THE COURT OF APPEALS IN THIS CASE AND THE DISMISSAL OF THE
APPEAL WERE PERMISSIBLE BECAUSE THE COURT HAD BEFORE IT THE ENTIRE
DISTRICT COURT RECORD AND BECAUSE RESPONDENT'S MOTION TO DISMISS AND
PETITIONER'S REPLY CONTAINED SOME ARGUMENT ON THE MERITS.  NOTHING IN
THE ORDER ENTERED BY THE COURT OF APPEALS, HOWEVER, INDICATES THAT THE
APPEAL WAS DULY CONSIDERED ON ITS MERITS AS NOWAKOWSKI REQUIRES IN
CASES WHERE A CERTIFICATE OF PROBABLE CAUSE HAS BEEN GRANTED.  ALTHOUGH
NOWAKOWSKI DOES NOT NECESSARILY REQUIRE THAT THE COURT OF APPEALS GIVE
THE PARTIES FULL OPPORTUNITY TO SUBMIT BRIEFS AND ARGUMENT IN AN APPEAL
WHICH, DESPITE THE ISSUANCE OF THE CERTIFICATE OF PROBABLE CAUSE, IS
FRIVOLOUS, ENOUGH MUST APPEAR TO DEMONSTRATE THE BASIS FOR THE COURT'S
SUMMARY ACTION.  ANYTHING LESS THAN THIS, AS WE HELD IN NOWAKOWSKI,
WOULD NEGATE THE OFFICE OF THE CERTIFICATE OF PROBABLE CAUSE.  INDEED,
IT APPEARS THAT SINCE NOWAKOWSKI, THE COURT OF APPEALS FOR THE SECOND
CIRCUIT HAS ACCORDED THIS EFFECT TO THAT RULING.  THE STATE INFORMS US
THAT "IT APPEARS TO BE THE POLICY OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT THAT IN CASES WHERE HABEAS CORPUS APPEALS HAVE BEEN
DISMISSED, REARGUMENT WILL BE GRANTED AND THE APPEAL REINSTATED WHERE
THE TIME TO APPLY FOR CERTIORARI HAD NOT EXPIRED PRIOR TO THE DECISION
IN NOWAKOWSKI."  BRIEF FOR RESPONDENT 22-23. 

ACCORDINGLY, THE JUDGMENT BELOW IS VACATED AND THE CASE IS REMANDED
TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE NEW YORK COURT OF APPEALS AMENDED ITS REMITTITUR TO REFLECT
THAT IT HAD PASSED ON PETITIONER'S CONSTITUTIONAL CLAIM.  11 N.Y.2D
969, 183 N.E.2D 697 (1962). 

/2/  IT APPEARS THAT PETITIONER WAS ON BAIL AFTER CONVICTION UNTIL
THIS COURT DENIED HIS EARLIER PETITION FOR A WRIT OF CERTIORARI.  372
U.S. 948 (MARCH 18, 1963). 

/3/  THE CHIEF JUSTICE AND JUSTICES BLACK, DOUGLAS, AND BRENNAN
DISSENTED. 

/4/  E.G., NEW YORK EDUCATION LAW SECS. 6502, 6702; NEW YORK GENERAL
BUSINESS LAW SEC. 74, SUBD. 2; NEW YORK REAL PROPERTY LAW SEC. 440-A;
NEW YORK ALCOHOLIC BEVERAGE CONTROL LAW SEC. 126. 

/5/  73 STAT. 536, 29 U.S.C. 504. 

/6/  NEW YORK ELECTION LAW SEC. 152, SUBD. 2. 

/7/  NEW YORK JUDICIARY LAW SECS. 596, 662. 

/8/  UNDOUBTEDLY THERE ARE OTHERS.  SEE GENERALLY NOTE, CIVIL
DISABILITIES OF FELONIES, 53 VA.L.REV.  403 (1967). 

/9/  SEE 28 U.S.C. 2241, 2242, 2243, 2244, 2245, 2249, 2252, 2254. 

/10/  SEE 9 W.HOLDSWORTH, HISTORY OF ENGLISH LAW 108-125 (1926). 

/11/  E.G., ARTICLE 39 OF THE MAGNA CARTA (SEE 9 W.HOLDSWORTH, AT
112-125).  THE FEDERAL HABEAS CORPUS STATUTE GRANTS JURISDICTION TO
INQUIRE INTO VIOLATIONS OF THE UNITED STATES CONSTITUTION. 

/12/  IF THERE HAS BEEN, OR WILL BE, AN UNCONDITIONAL RELEASE FROM
CUSTODY BEFORE INQUIRY CAN BE MADE INTO THE LEGALITY OF DETENTION, IT
HAS BEEN HELD THAT THERE IS NO HABEAS CORPUS JURISDICTION.  SEE PARKER
V. ELLIS, SUPRA, AT 582, N. 8 (WARREN, C. J., DISSENTING); EX PARTE
BAEZ, 177 U.S. 378 (1900); UNITED STATES EX REL. RIVERA V. REEVES, 246
F.SUPP.  599 (D.C.S.D.N.Y. 1965); BURNETT V. GLADDEN, 228 F.SUPP.  527
(D.C.D. ORE.  1964). 

/13/  PETITIONER WAS CONVICTED IN 1960.  HE TOOK HIS CASE THROUGH
THE STATE APPELLATE PROCESS, AND THIS COURT DENIED A WRIT OF CERTIORARI
IN MARCH 1963.  372 U.S. 948.  IN JUNE 1963 PETITIONER BEGAN HIS QUEST
FOR A WRIT OF HABEAS CORPUS IN THE FEDERAL COURTS.  THE DISTRICT COURT
DENIED THE PETITION WITHOUT PREJUDICE, SUGGESTING, IN VIEW OF WHAT THE
JUDGE THOUGH WAS THE UNSETTLED STATE OF NEW YORK LAW, THAT PETITIONER
REAPPLY TO THE STATE COURTS.  SEE 28 U.S.C. 2254.  PETITIONER DID SO,
AND APPARENTLY AT THE SAME TIME APPEALED TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT.  THE STATE COURTS DENIED RELIEF A
SECOND TIME.  THE UNITED STATES COURT OF APPEALS REVERSED THE DISTRICT
COURT AND ORDERED A HEARING ON THE MERITS.  334 F.2D 331 (1964).  THIS
COURT DENIED THE STATE'S PETITION FOR A WRIT OF CERTIORARI.  381 U.S.
951 (1965).  THE HEARING ORDERED BY THE COURT OF APPEALS WAS HELD BY
THE DISTRICT COURT ON NOVEMBER 5, 1965.  THE PETITION WAS DISMISSED ON
THE MERITS ON MAY 2, 1966.  PETITIONER'S APPEAL TO THE SECOND CIRCUIT
WAS DISMISSED ON FEBRUARY 3, 1967, AND A PETITION FOR REHEARING WAS
DENIED ON FEBRUARY 21, 1967.  A PETITION FOR A WRIT OF CERTIORARI WAS
FILED HERE ON MARCH 20, 1967, AND GRANTED ON OCTOBER 16, 1967, 389 U.S.
896, ABOUT SEVEN YEARS AFTER PETITIONER'S CONVICTION. 

/14/  SEE THOMAS V. CUNNINGHAM, 335 F.2D 67 (C.A. 4TH CIR. 1964). 

/15/  SEE N. 13, SUPRA. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART, CONCURRING. 

ALTHOUGH WE JOINED THE PER CURIAM DECISION IN PARKER V. ELLIS, 362
U.S. 574, WE ARE NOW PERSUADED THAT WHAT THE COURT THERE DECIDED WAS
WRONG INSOFAR AS IT HELD THAT EVEN THOUGH A MAN BE IN CUSTODY WHEN HE
INITIATES A HABEAS CORPUS PROCEEDING, THE STATUTORY POWER OF THE
FEDERAL COURTS TO PROCEED TO A FINAL ADJUDICATION OF HIS CLAIMS DEPENDS
UPON HIS REMAINING IN CUSTODY.  CONSEQUENTLY WE CONCUR IN THE OPINION
AND JUDGMENT OF THE COURT. 

MR. JUSTICE HARLAN ALSO NOTES THAT HIS VIEWS UPON THE ISSUE
DISCUSSED IN HIS SEPARATE CONCURRING OPINION IN PARKER, ID., AT 576,
HAVE NOT CHANGED. 

JAMES J. CALLY ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

BRENDA SOLOFF, ASSISTANT ATTORNEY GENERAL OF NEW YORK, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HER ON THE BRIEF WERE LOUIS J. LEFKOWITZ,
ATTORNEY GENERAL, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL, AND MICHAEL H. RAUCH, ASSISTANT ATTORNEY GENERAL. 
..END :



















UNITED STATES V. UNITED SHOE CORP., 391 U.S. 244 


       UNITED STATES V. UNITED SHOE MACHINERY CORP.

    APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

          DISTRICT OF MASSACHUSETTS. 

        NO. 597.  ARGUED APRIL 1, 1968.-- DECIDED MAY 20, 1968. 


IN 1953 THE DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS HELD
THAT APPELLEE HAD MONOPOLIZED THE MANUFACTURE OF SHOE MACHINERY IN
VIOLATION OF SEC. 2 OF THE SHERMAN ACT.  THE COURT REFUSED THE
GOVERNMENT'S REQUEST THAT APPELLEE BE DIVIDED INTO THREE SEPARATE
COMPANIES AND INSTEAD IMPOSED CERTAIN RESTRICTIONS AND CONDITIONS
DESIGNED "TO RECREATE A COMPETITIVE MARKET."  THE DISTRICT COURT'S
DECISION WAS AFFIRMED BY THIS COURT.  THE DISTRICT COURT'S DECREE
PROVIDED IN PARAGRAPH 18 THAT:  "ON (JANUARY 1, 1965) BOTH PARTIES
SHALL REPORT TO THIS COURT THE EFFECT OF THIS DECREE, AND MAY THEN
PETITION FOR ITS MODICIATION, IN VIEW OF ITS EFFECT IN ESTABLISHING
WORKABLE COMPETITION."  PURSUANT TO THIS PROVISION THE GOVERNMENT
REPORTED ON JANUARY 1, 1965, THAT APPELLEE CONTINUED TO DOMINATE THE
MARKET, THAT WORKABLE COMPETITION HAD NOT BEEN ESTABLISHED, AND THAT
FURTHER RELIEF WAS NEEDED.  THE GOVERNMENT ASKED THAT APPELLEE BE
DIVIDED INTO TWO COMPETING COMPANIES.  THE DISTRICT COURT HELD THAT
UNITED STATES V. SWIFT & CO., 286 U.S. 106 (1932), LIMITED ITS POWER TO
MODIFY THE DECREE TO CASES INVOLVING "(1) A CLEAR SHOWING OF (2)
GREVIOUS WRONG (3) EVOKED BY NEW AND UNFORESEEN CIRCUMSTANCES," AND
SINCE THE OBJECT OF THE DECREE WAS "NOT TO RESTORE WORKABLE COMPETITION
BUT TO MOVE TOWARD ESTABLISHING IT" AND THE "DECREE HAS OPERATED IN THE
MANNER AND WITH THE EFFECT INTENDED," THE GOVERNMENT'S PETITION WAS
DENIED.  HELD: 

1.  THE DISTRICT COURT ERRED IN DENYING THE GOVERNMENT'S PETITION ON
THE AUTHORITY OF UNITED STATES V. SWIFT & CO., SUPRA, BECAUSE THERE THE
DEFENDANTS SOUGHT RELIEF, NOT TO ACHIEVE THE PURPOSES OF THE DECREE'S
PROVISIONS, BUT TO ESCAPE THEIR IMPACT.  THE REQUEST WAS THE OBVERSE OF
THE GOVERNMENT'S ALLEGATION AND REQUEST HERE.  PP. 248-249. 

2.  THE DISTRICT COURT SHOULD DETERMINE WHETHER THE RELIEF IN THIS
CASE HAS MET THE PRESCRIBED STANDARDS AND, IF NOT, SHOULD MODIFY THE
DECREE SO AS TO ACHIEVE THE REQUIRED RESULT.  PP. 249-252. 

(A) IT IS THE TRIAL COURT'S DUTY TO PRESCRIBE RELIEF WHICH WILL
TERMINATE THE ILLEGAL MONOPOLY IN VIOLATION OF SEC. 2 OF THE SHERMAN
ACT AND ENSURE THAT THERE REMAIN NO PRACTICES LIKELY TO RESULT IN
MONOPOLIZATION IN THE FUTURE.  PP. 250-251. 

(B) THE SPECIFIC PROVISIONS OF THE DECREE DID NOT EXHAUST THAT
COURT'S POWER TO AFFORD RELIEF WHICH "SHOULD PUT AN END TO THE
COMBINATION . . . AND BREAK UP OR RENDER IMPOTENT THE MONOPOLY POWER
FOUND TO BE IN VIOLATION OF THE ACT."  UNITED STATES V. GRINNEL CORP.,
384 U.S. 563, 577 (1966).  PP. 251-252. 

266 F.SUPP.  328, REVERSED AND REMANDED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

IN 1953, IN A CIVIL SUIT BROUGHT BY THE UNITED STATES, THE DISTRICT
COURT FOR THE DISTRICT OF MASSACHUSETTS HELD THAT APPELLEE HAD VIOLATED
SEC. 2 OF THE SHERMAN ANTI-TRUST ACT BY MONOPOLIZING THE MANUFACTURE OF
SHOE MACHINERY.  THE COURT FOUND THAT "(A) DEFENDANT HAS, AND
EXERCISES, SUCH OVERWHELMING STRENGTH IN THE SHOE MACHINERY MARKET THAT
IT CONTROLS THAT MARKET, (2) THIS STRENGTH EXCLUDES SOME POTENTIAL, AND
LIMITS SOME ACTUAL, COMPETITION, AND (3) THIS STRENGTH IS NOT
ATTRIBUTABLE SOLELY TO DEFENDANT'S ABILITY, ECONOMIES OF SCALE,
RESEARCH, NATURAL ADVANTAGES, AND ADAPTATION TO INEVITABLE ECONOMIC
LAWS."  UNITED STATES V. UNITED SHOE MACHINERY CORP., 110 F.SUPP.  295,
343 (1953).  THE COURT DID NOT ORDER THE RELIEF REQUESTED BY THE
GOVERNMENT-- THAT APPELLEE BE DISSOLVED INTO THREE SEPARATE SHOE
MACHINERY MANUFACTURING COMPANIES.  RATHER, THE COURT IMPOSED A VARIETY
OF RESTRICTIONS AND CONDITIONS DESIGNED "TO RECREATE A COMPETITIVE
MARKET."  /1/  APPELLEE APPEALED TO THIS COURT, WHICH AFFIRMED THE
DECISION OF THE DISTRICT COURT.  UNITED SHOE MACHINERY CORP. V. UNITED
STATES, 347 U.S. 521 (1954). 

THE DECREE OF THE DISTRICT COURT, ENTERED ON FEBRUARY 18, 1953, AND
SUBSEQUENTLY MODIFIED ON JULY 12 AND SEPTEMBER 17, 1954, PROVIDED IN
PARAGRAPH 18 THAT: 

"ON (JANUARY 1, 1965) BOTH PARTIES SHALL REPORT TO THIS COURT THE
EFFECT OF THIS DECREE, AND MAY THEN PETITION FOR ITS MODIFICATION, IN
VIEW OF ITS EFFECT IN ESTABLISHING WORKABLE COMPETITION.  IF EITHER
PARTY TAKES ADVANTAGE OF THIS PARAGRAPH BY FILING A PETITION, EACH SUCH
PETITION SHALL BE ACCOMPANIED BY AFFIDAVITS SETTING FORTH THE THEN
STRUCTURE OF THE SHOE MACHINERY MARKET AND DEFENDANT'S POWER WITHIN
THAT MARKET."  110 F.SUPP., AT 354.  PURSUANT TO THIS PROVISION, THE
GOVERNMENT REPORTED TO THE DISTRICT COURT ON JANUARY 1, 1965, THAT
APPELLEE CONTINUED TO DOMINATE THE SHOE MACHINERY MARKET, THAT WORKABLE
COMPETITION HAD NOT BEEN ESTABLISHED IN THAT MARKET, AND THAT
ADDITIONAL RELIEF WAS ACCORDINGLY NECESSARY.  THE GOVERNMENT ASKED THAT
APPELLEE BE REQUIRED TO SUBMIT TO THE COURT A PLAN, PURSUANT TO WHICH
UNITED'S BUSINESS WOULD BE RECONSTITUTED SO AS TO FORM TWO FULLY
COMPETING COMPANIES IN THE SHOE MACHINERY MARKET.  IT ALSO REQUESTED
"SUCH OTHER AND FURTHER RELIEF AS MAY BE NECESSARY TO ESTABLISH
WORKABLE COMPETITION IN THE SHOE MACHINERY MARKET." 

THE DISTRICT COURT, AFTER A HEARING, DENIED THE GOVERNMENT'S
PETITION.  /2/  IT HELD THAT UNDER UNITED STATES V. SWIFT & CO., 286
U.S. 106 (1932), ITS POWER TO MODIFY THE ORIGINAL DECREE WAS LIMITED TO
CASES INVOLVING "(1) A CLEAR SHOWING OF (2) GRIEVOUS WRONG (3) EVOKED
BY NEW AND UNFORESEEN CONDITIONS."  UNITED STATES V. UNITED STATES SHOE
MACHINERY CORP., 266 F.SUPP.  328, 330 (1967).  ANALYZING ITS 1953
DECREE, AS AMENDED, THE COURT SAID THAT THE OBJECT OF THE DECREE WAS
"NOT TO RESTORE SO-CALLED WORKABLE COMPETITION BUT TO MOVE TOWARD
ESTABLISHING IT," AND THAT "THE 1953 DECREE HAS OPERATED IN THE MANNER
AND WITH THE EFFECT INTENDED.  IT HAS PUT IN MOTION FORCES WHICH, AIDED
BY NEW TECHNOLOGY, HAVE ERODED UNITED'S POWER AND ALREADY DISSIPATED
MUCH OF THE EFFECT OF UNITED'S MONOPOLIZATION."  266 F.SUPP.,AT 330,
334.  ACCORDINGLY, IN VIEW OF THE STRINGENT REQUIREMENTS OF SWIFT AS
THE COURT CONSTRUED THAT DECTSION, THE DISTRICT COURT DENIED THE
GOVERNMENT'S PETITION. 

FROM THIS DECISION THE GOVERNMENT APPEALED TO THTS COURT.  WE NOTED
PROBABLE JURISDICTION.  389 U.S. 967 (1967).  WE REVERSE. 

        I. 

THE DISTRICT COURT MISCONCEIVED THE THRUST OF THIS COURT'S DECISION
IN SWIFT.  THAT CASE IN NO WAY RESTRICTS THE DISTRICT COURT'S POWER TO
GRANT THE RELIEF REQUESTED BY THE GOVERNMENT IN THE PRESENT CASE.  IN
SWIFT, A CONSENT DECREE HAD BEEN ENTERED IN 1920 ORDERING A MEASURE OF
DIVESTITURE BY AND IMPOSING A VARIETY OF RESTRAINTS UPON THE DEFENDANT
MEAT PACKERS.  IN 1930, AFTER VARIOUS UNSUCCESSFUL ATTEMPTS TO SECURE
MODIFICATION OR VACATION OF THE DECREE, THE PACKERS FILED A PETITION
"TO MODIFY THE CONSENT DECREE AND TO ADAPT ITS RESTRAINTS TO THE NEEDS
OF A NEW DAY," AS JUSTICE CARDOZO PHRASED IT.  286 U.S.,AT 113.  THE
LOWER COURT GRANTED A MEASURE OF RELIEF AND THE UNITED STATES
APPEALED.  THIS COURT REVERSED.  IT EMPHASIZED THE POWER OF A COURT OF
EQUITY "TO MODIFY AN INJUNCTION IN ADAPTION TO CHANGED CONDITIONS
THOUGH IT WAS ENTERED BY CONSENT."  ID., AT 114.  THE QUESTION, IT
HELD, IS "WHETHER ENOUGH HAS BEEN SHOWN TO JUSTIFY ITS EXERCISE."  ID.,
AT 115.  AFTER REVIEWING THE EVIDENCE, THE COURT CONCLUDED THAT THE
DANGER OF MONOPOLY AND OF THE ELIMINATION OF COMPETITION WHICH LED TO
THE INITIAL GOVERNMENT COMPLAINT AND THE DECREE HAD NOT BEEN REMOVED
AND THAT, ALTHOUGH IN SOME RESPECTS THE DECREE HAD BEEN EFFECTUATED,
THERE WAS STILL A DANGER OF UNLAWFUL RESTRAINTS OF TRADE.  THE COURT'S
LANGUAGE, QUOTED AND RELIED ON BY THE TRIAL COURT HERE, TO THE EFFECT
THAT "NOTHING LESS THAN A CLEAR SHOWING OF GRIEVOUS WRONG EVOKED BY NEW
AND UNFORESEEN CONDITIONS SHOULD LEAD US TO CHANGE," ID., AT 119, THE
DECREE, MUST, OF COURSE, BE READ IN LIGHT OF THIS CONTEXT.  SWIFT
TEACHES THAT A DECREE MAY BE CHANGED UPON AN APPROPRIATE SHOWING, AND
IT HOLDS THAT IT MAY NOT BE CHANGED IN THE INTERESTS OF THE DEFENDANTS
IF THE PURPOSES OF THE LITIGATION AS INCORPORATED IN THE DECREE (THE
ELIMINATION OF MONOPOLY AND RESTRICTIVE PRACTICES) HAVE NOT BEEN FULLY
ACHIEVED. 

THE PRESENT CASE IS THE OBVERSE OF THE SITUATION IN SWIFT IF THE
GOVERNMENT'S ALLEGATIONS ARE PROVED.  HERE, THE GOVERNMENT CLAIMS THAT
THE PROVISIONS OF THE DECREE WERE SPECIFICALLY DESIGNED TO ACHIEVE THE
ESTABLISHMENT OF "WORKABLE COMPETITION" BY VARIOUS MEANS AND THAT THE
DECREE HAS FAILED TO ACCOMPLISH THIS RESULT.  BECAUSE TIME AND
EXPERIENCE HAVE DEMONSTRATED THIS FACT, ACCORDING TO THE GOVERNMENT, IT
SEEKS MODIFICATION OF THE DECREE.  NOTHING IN SWIFT PRECLUDES THIS.  IN
SWIFT, THE DEFENDANTS SOUGHT RELIEF NOT TO ACHIEVE THE PURPOSES OF THE
PROVISIONS OF THE DECREE, BUT TO ESCAPE THEIR IMPACT.  ACCORDINGLY, WE
CONCLUDE THAT THE DISTRICT COURT ERRED IN DENYING THE GOVERNMENT'S
PETITION "ON THE AUTHORITY OF UNITED STATFS V. SWIFT & CO., 286 U.S.
106, 119."  266 F.SUPP.,AT 334. 

        II. 

DECISION AS TO THE GOVERNMENT'S PETITION TO MODIFY THE DECREE IN THE
PRESENT CASE MUST BE BASED UPON THE SPECIFIC FACTS AND CIRCUMSTANCES
THAT ARE PRESENTED.  IN URGING AFFIRMANCE OF THE 1953 DECISION, THE
GOVERNMENT ADVISED THIS COURT THAT, IN FRAMING THE DECREE, THE DISTRICT
COURT HAD "PROCEEDED ON THE PREMISE THAT RELATIVELY MILD REMEDIES
SHOULD BE TRIED AS A FIRST RESORT, AND THAT THE POSSIBILITY OF MORE
DRASTIC MEASURES SHOULD BE HELD IN ABEYANCE."  BRIEF OF THE UNITED
STATES, NO. 394, 1953 TERM, 155.  PARAGRAPH 18 OF THE DECREE APPEARED
TO BE IN CONFIRMATION OF THIS STATEMENT SINCE IT EXPRESSLY REQUIRED A
REPORT AFTER 10 YEARS OF EXPERIENCE UNDER THE DECREE AND CONTEMPLATED
THAT PETITIONS FOR MODIFICATION MIGHT BE FILED "IN VIEW OF (THE
DECREE'S) EFFECT IN ESTABLISHING WORKABLE COMPETITION."  PARAGRAPH 18
THEN SPECIFICALLY PROVIDED THAT ANY SUCH PETITION WOULD HAVE TO BE
ACCOMPANIED BY "AFFIDAVITS SETTING FORTH THE THEN STRUCTURE OF THE SHOE
MACHINERY MARKET AND DEFENDANT'S POWER WITHIN THAT MARKET."  /3/ 

THESE SPECIFICATIONS WERE PECULIARLY APT BECAUSE THIS IS A MONOPOLY
CASE UNDER SEC. 2 OF THE SHERMAN ACT AND BECAUSE THE DECREE WAS SHAPED
IN RESPONSE TO FINDINGS OF MONOPOLIZATION OF THE SHOE MACHINERY
MARKET.  THAT THE PURPOSE OF THE 1953 DECREE WAS TO ELIMINATE THIS
UNLAWFUL MARKET DOMINATION WAS MADE CLEAR BEYOND QUESTION BY THE
DISTRICT COURT'S STATEMENT AT THE BEGINNING OF THE SECTION OF ITS
OPINION DEALING WITH RELIEF.  THIS READ AS FOLLOWS: 

     "WHERE A DEFENDANT HAS MONOPOLIZED COMMERCE IN VIOLATION OF

  SEC; 2, THE PRINCIPAL OBJECTS OF THE DECREES ARE TO EXTIRPATE

  PRACTICES THAT HAVE CAUSED OR MAY HEREAFTER CAUSE MONOPOLIZATION,

  AND TO RESTORE WORKABLE COMPETITION IN THE MARKET.  110

  F.SUPP.,AT 346-347. 

IT IS OF COURSE ESTABLISHED THAT, IN A SEC. 2 CASE, UPON APPROPRIATE
FINDINGS OF VIOLATION, IT IS THE DUTY OF THE COURT TO PRESCRIBE RELIEF
WHICH WILL TERMINATE THE ILLEGAL MONOPOLY, DENY TO THE DEFENDANT THE
FRUITS OF ITS STATUTORY VIOLATION, AND ENSURE THAT THERE REMAIN NO
PRACTICES LIKELY TO RESULT IN MONOPOLIZATION IN THE FUTURE.  SEE, E.G.,
UNITED STATES V. GRINNELL CORP., 384 U.S. 563, 577 (1966); SCHINE
THEATRES V. UNITED STATES, 334 U.S. 110, 128-129 (1948); THE TRIAL
COURT IS CHARGED WITH INESCAPABLE RESPONSIBILITY TO ACHIEVE THIS
OBJECTIVE, ALTHOUGH IT MAY, IF CIRCUMSTANCES WARRANT, ACCEPT A FORMULA
FOR ACHIEVING THE RESULT BY MEANS LESS DRASTIC THAN IMMEDIATE
DISSOLUTION OR DIVESTITURE; THE DECREE IN THE PRESENT CASE WAS
CAREFULLY DEVISED WITHIN THE LIMITS OF THIS PRINCIPLE; MEASURES SHORT
OF DIVESTITURE WERE PRESCRIBED WITH PROVISIONS FOR REVIEW AND POSSIBLE
REVISION AFTER 10 YEARS.  /4/ 

THE DISTRICT COURT HAS NOW DENIED THE GOVERNMENT'S PETITION FOR
MODIFICATION OF THE DECREE ON THE GROUND THAT THE DECREE IS "STILL
WORKING AT ITS LONG-RANGE TASK OF FREEING THE MARKET FROM ALL
CONSEQUENCES OF UNITED'S MONOPOLIZATION AND KEEPING THE DOOR WIDE OPEN
FOR THE ARRIVAL OF AN ADEQUATELY PROVIDED CHALLENGER."  266 F.SUPP.,AT
334.  ACCORDING TO THE COURT, THIS WAS THE INTENDED EFFECT OF THE
DECREE. 

IF THE DECREE HAD NOT CONTAINED PARAGRAPH 18-- IF IT HAD BEEN SILENT
AS TO THE TIME FOR SUBMITTING REPORTS AND, IF NECESSARY, PETITIONS FOR
MODIFICATION-- AND IF AFTER 10 YEARS IT WERE SHOWN THAT THE DECREE HAD
NOT ACHIEVED THE ADEQUATE RELIEF TO WHICH THE GOVERNMENT IS ENTITLED IN
A SEC. 2 CASE, IT WOULD HAVE BEEN THE DUTY OF THE COURT TO MODIFY THE
DECREE SO AS TO ASSURE THE COMPLETE EXTIRPATION OF THE ILLEGAL
MONOPOLY.  THE COURT'S POWER TO DO THIS IS CLEAR.  SEE, E.G., UNITED
STATES V. SWIFT & CO;, 286 U.S. 106 (1932); CHRYSLER CORP. V. UNITED
STATES, 316 U.S. 556 (1942).  ITS DUTY IS IMPLICIT IN THE FINDINGS OF
VIOLATION OF SEC. 2 AND IN THE DECISIONS OF THIS COURT AS TO THE TYPE
OF REMEDY WHICH MUST BE PRESCRIBED. 

WE FIND NOTHING IN THE 1953 DECREE, AS AMENDED, OR IN THE DISTRICT
COURT'S OPINION RELATING THERETO WHICH PRESENTS AN OBSTACLE OR
EMBARRASSMENT TO THE APPLICATION OF THIS PRINCIPLE IN THE PRESENT CASE;
IF THE DECREE HAS NOT, AFTER 10 YEARS, ACHIEVED ITS "PRINCIPAL
OBJECTS," NAMELY, "TO EXTIRPATE PRACTICES THAT HAVE CAUSED OR MAY
HEREAFTER CAUSE MONOPOLIZATION, AND TO RESTORE WORKABLE COMPETITION IN
THE MARKET"-- THE TIME HAS COME TO PRESCRIBE OTHER, AND IF NECESSARY
MORE DEFINITIVE, MEANS TO ACHIEVE THE RESULT.  A DECADE IS ENOUGH.  /5/
EVEN IF WE SHOULD ASSUME THAT PARGRAPH 18, AS THE DISTRICT COURT NOW
STATES, HAD ONLY THE LIMITED PURPOSE OF CALLING FOR A 10-YEAR REPORT AS
TO WHETHER THE DECREE WAS "GRADUALLY ERODING UNITED'S 1953 POWER TO
MONOPOLIZE THE MARKET," 266 F;SUPP;,AT 330, ITS SPECIFIC PROVISIONS DID
NOT EXHAUST THE DISTRICT COURT'S POWER.  RELIEF IN A SHERMAN ACT CASE
"SHOULD PUT AN END TO THE COMBINATION AND DEPRIVE THE DEFENDANTS OF ANY
OF THE BENEFITS OF THE ILLEGAL CONDUCT, AND BREAK UP OR RENDER IMPOTENT
THE MONOPOLY POWER FOUND TO BE IN VIOLATION OF THE ACT."  UNITED STATES
V. GRINNELL CORP., 384 U.S. 563, 577 (1966).  SEE ALSO UNITED STATES V.
UNITED STATES GYPSUM CO., 340 U.S. 76, 88-90 (1950); UNITED STATES V.
E. I. DUPONT DENEMOURS & CO., 366 U.S. 316, 326 (1961).  THE DISTRICT
COURT SHOULD PROCEED TO DETERMINE WHETHER THE RELIEF IN THIS CASE HAS
MET THE STANDARDS WHICH THIS COURT HAS PRESCRIBED.  IF IT HAS NOT, THE
DISTRICT COURT SHOULD MODIFY THE DECREE SO AS TO ACHIEVE THE REQUIRED
RESULT WITH ALL APPROPRIATE EXPEDITION. 

   IT IS SO ORDERED. 

/1/  SOME OF THE MAJOR PROVISIONS OF THE DECREE WERE AS FOLLOWS:
UNITED WAS ENJOINED FROM FURTHER MONOPOLIZATION; IT WAS ORDERED TO
OFFER FOR SALE ALL TYPES OF MACHINES (PREVIOUSLY ONLY LEASED) AT "SUCH
TERMS . . . AS DO NOT MAKE IT SUBSTANTIALLY MORE ADVANTAGEOUS FOR A
SHOE FACTORY TO LEASE RATHER THAN TO BUY A MACHINE"; IF UNITED
CONTINUED LEASING IT WAS REQUIRED TO LEASE FOR NO MORE THAN FIVE-YEAR
TERMS UNDER CERTAIN SPECIFIED CONDITIONS; IT WAS NOT TO REFUSE A
PROSPECTIVE CUSTOMER'S REQUEST TO LEASE OR BUY A MACHINE "EXCEPT FOR
GOOD CAUSE"; IT WAS TO SUBMIT A PLAN FOR DISPOSING OF CERTAIN SECTORS
OF ITS BUSINESS; IT WAS TO GRANT TO ANY APPLICANT, EXCEPT A DELIBERATE
INFRINGER, A NONEXCLUSIVE LICENSE UNDER ANY OR ALL PATENTS HELD BY IT
ON REASONABLE NONDISCRIMINATORY ROYALTY TERMS; IT WAS NOT TO ACQUIRE
ANY PATENTS OR PATENT APPLICATIONS EXCEPT THOSE ACQUIRED BY REASON OF
BONA FIDE EMPLOYMENT OF THE INVENTOR, NOR WAS IT TO ACQUIRE PATENTS OR
PATENT APPLICATIONS UNDER EXCLUSIVE LICENSE; IT WAS NOT TO ACQUIRE ANY
SECOND-HAND SHOE MACHINERY OR ANY SHOE MACHINERY MANUFACTURER OR A
MANUFACTURER OR DISTRIBUTOR OF SUPPLIES FOR SHOE FACTORIES. 

/2/ A PETITION BY APPELLEE, SEEKING TO BE RELIEVED OF CERTAIN
RESTRICTIONS CONTINED IN THE ORIGINAL DECREE, WAS SIMILARLY DENIED. 
THE JUDGMENT IN THIS REGARD IS NOT BEFORE US, SINCE APPELLEE HAS NOT
APPEALED TO THIS COURT.     /3/  IN PARAGRAPH 23 OF THE ORIGINAL DECREE
JURISDICTION WAS EXPRESSLY RETAINED "FOR THE PURPOSE OF ENABLING EITHER
OF THE PARTIES TO APPLY TO THIS COURT AT ANY TIME FOR SUCH FURTHER
ORDERS AND DIRECTIONS AS MAY BE APPROPRIATE FOR THE CORRECTION,
CONSTRUCTION, OR CARRYING OUT OF THIS DECREE, AND TO SET ASIDE THE
DECREE AND TAKE FURTHER PROCEEDINGS IF FUTURE DEVELOPMENTS JUSTIFY THAT
COURSE IN THE APPROPRIATE ENFORCEMENT OF THE ANTI-TRUST ACT."  110
F.SUPP.,AT 354. 

/4/  IN REJECTING THE SUGGESTION THAT UNITED BE FORBIDDEN TO LEASE
ON ANY TERMS, THE DISTRICT COURT STATED SPECIFICALLY THAT IT "AGREES
THAT IT WOULD BE UNDESIRABLE, AT LEAST UNTIL MILDER REMEDIES HAVE BEEN
TRIED, TO DIRECT UNITED TO ABOLISH LEASING FORTHWITH."  110 F.SUPP.,AT
349.     /5/  WE EMPHASIZE THAT THERE IS NO ISSUE HERE REGARDING THE
TIMING OF THE GOVERNMENT'S PETITION FOR MODIFICATION.  NO CLAIM IS MADE
THAT THE GOVERNMENT HAS PETITIONED FOR MODIFICATION BEFORE THE RUNNING
OF A REASONABLE PERIOD DURING WHICH THE EFFECTS OF THE ORIGINAL DECREE
HAVE BECOME CLEAR.  MOREOVER, THE GOVERNMENT MAY CLAIM, PERSUASIVELY,
THAT PARGRAPH 18 OF THE ORIGINAL DECREE SPECIFICALLY CONTEMPLATED THAT
THE GOVERNMENT WOULD PETITION WHEN IT DID. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

ASSISTANT ATTORNEY GENERAL TURNER ARGUED THE CAUSE FOR THE UNITED
STATES.  WITH HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD,
FRANCIS X. BEYTAGH, JR., HOWARD E. SHAPIRO, THOMAS R. ASHER, AND
MARGARET H. BRASS. 

RALPH M. CARSON ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE CONRAD W. OBERDORFER, ROBERT D. SALINGER, LLOYD N. CUTLER,
TAGGART WHIPPLE, AND LOUIS L. STANTON, JR. 

JAMES F. RILL, JOHN R. HALLY, AND THOMAS F. SHANNON FILED A BRIEF
FOR THE NATIONAL FOOTWEAR MANUFACTURERS ASSOCATION, INC., ET AL., AS
AMICI CURIAE, URGING AFFIRMANCE. 
..END :























FIRST NAT. BANK V. CITIES SERVICE, 391 U.S. 253 


       FIRST NATIONAL BANK OF ARIZONA V. CITIES SERVICE CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 23.  ARGUED NOVEMBER 9, 1967.-- DECIDED MAY 20, 1968. 


ONE WALDRON (HEREAFTER PETITIONER), IN 1956, FILED AN ANTITRUST
ACTION SEEKING TREBLE DAMAGES AMOUNTING TO $109,000,000 AGAINST SEVEN
LARGE OIL COMPANIES, INCLUDING RESPONDENT (CITIES).  IN ADDITION TO
CHARGING A WORLDWIDE CARTEL MAINTAINED SINCE 1928 BY OIL COMPANIES
OTHER THAN CITIES, THE COMPLAINT CHARGED THOSE COMPANIES WITH
CONSPIRING TO BOYCOTT IRANIAN OIL UNTIL IRAN AGREED TO RETURN ANGLO
IRANIAN'S PROPERTIES WHICH IT HAD NATIONALIZED IN 1951 ALLEGING:  THAT
PETITIONER HAD A FAVORABLE CONTRACT TO PURCHASE IRANIAN OIL OVER A FIVE
YEAR PERIOD; THAT NEGOTIATIONS HAD BEEN CONDUCTED WITH CITIES FOR ITS
PARTICIPATION IN THE OPERATION OF THE IRANIAN OIL INDUSTRY; THAT CITIES
JOINED THE CONSPIRACY, HAVING BEEN BRIBED IN THE LATTER PART OF 1952 BY
GULF AND ANGLO-IRANIAN BY AN OFFICER OF KUWAIT OIL AT PRICES LOWER THAN
PETITIONER'S OFFER; THAT IN 1954 A CONSORTIUM AGREEMENT WAS MADE
WHEREBY ALL THE OIL COMPANIES, INCLUDING CITIES, SHARED ALMOST ALL THE
IRANIAN OIL PRODUCTION; AND THAT THE BOYCOTT CONSPIRACY FRUSTRATED
PETITIONER'S ABILITY TO SELL OIL UNDER HIS CONTRACT.  THE TRIAL JUDGE
GRANTED DEFENSE MOTIONS TO POSTPONE ANSWERING THE COMPLAINT PENDING THE
TAKING OF PETITIONER'S DEPOSITION, AND MEANWHILE PETITIONER COMMENCED
IN SEPTEMBER 1956.  FROM THEN TILL MAY 1962 HE AND HIS ASSOCIATES HAD
THEIR DEPOSITIONS TAKEN (HEREAFTER "WERE DEPOSED") FOR 153 DAYS IN ALL,
SEVEN OF WHICH WERE ATTRIBUTABLE TO CITIES.  VARIOUS STIPULATIONS WHICH
RESULTED IN PROLONGING THE DEPOSITION PERIOD WERE ENTERED INTO AT
PETITIONER'S REQUEST OR WITH HIS , AGREEMENT.  DURING THE COURSE OF HIS
DEPOSITION PETITIONER STATED THAT HE HAD NOT INITIALLY ATTRIBUTED
CITIES' FAILURE TO BUY IRANIAN OIL FROM HIM TO ITS PARTICIPATION IN THE
BOYCOTT BUT THAT IT WAS HIS DISCOVERY OF CITIES' PURCHASE OF KUWAIT OIL
FROM GULF PLUS ITS LATER PARTICIPATION IN THE CONSORTIUM THAT PROMPTED
HIM TO JOIN CITIES AS A CONSPIRATOR.  ACCORDINGLY, IN 1960, CITIES
MOVED FOR SUMMARY JUDGMENT UNDER FED. RULE CIV. PROC. 56, ON THE GROUND
THAT THE AFFIDAVIT OF HILL, ITS OFFICER IN CHARGE OF FOREIGN
OPERATIONS, AND ACCOMPANYING DOCUMENTS CONCLUSIVELY DISPROVED
PETITIONER'S BOYCOTT CONSPIRACY THEORY BY DEMONSTRATING THAT (1) CITIES
HAD NEGOTIATED TO BUY KUWAIT OIL FROM GULF SINCE 1948 AND HAD
SUBSTANTIALLY COMPLETED A FINAL AGREEMENT BEFORE PETITIONER APPROACHED
CITIES AND (2) CITIES HAD ONLY STARTED NEGOTIATIONS TO PARTICIPATE IN
THE CONSORTIUM SOME TWO YEARS AFTER IT WAS ALLEGED TO HAVE JOINED THE
CONSPIRACY AND THE EVENTUAL PARTICIPATION OFFERED TO CITIES IN THE
CONSORTIUM WAS SO SMALL THAT CITIES, FOLLOWING ITS FRUITLESS
OBJECTIONS, TRANSFERRED ITTO RICHFIELD, IN WHICH CITIES HELD A MINORITY
STOCK INTEREST.  THE TRIAL JUDGE, FOLLOWING COUNTERARGUMENTS BY
PETITIONER, THOUGH BELIEVING IT "DOUBTFUL" THAT ANY ISSUE OF MATERIAL
FACT EXISTED AND FEELING THAT CITIES HAD BEEN JOINED ON MERE
"SUSPICION," DEFERRED RULING ON CITIES' SUMMARY JUDGMENT MOTION, BUT
STATED THAT PETITIONER'S PRETRIAL DISCOVERY WOULD BE "CLOSELY
REGULATED."  THEREAFTER HE ORDERED THAT PETITIONER BE ALLOWED TO DEPOSE
HILL UNDER FED. RULE CIV. PROC. 56(F), WHICH PROVIDES FOR COMPARATIVELY
LIMITED DISCOVERY FOR THE PURPOSE OF SHOWING FACTS SUFFICIENT TO
WITHSTAND A SUMMARY JUDGMENT MOTION.  PETITIONER'S SOLE OBJECTION WAS
THAT CITIES'  PRESIDENT, JONES, SHOULD BE DEPOSED RATHER THAN HILL. 
AFTER DEPOSITIONS HAD BEEN TAKEN OF PETITIONER'S ASSOCIATES, PETITIONER
DEPOSED HILL FOR SIX DAYS BETWEEN SEPTEMBER 10, 1962, AND FEBRUARY 27,
1963, AND LATER MOVED FOR ADDITIONAL DISCOVERY, WHEREUPON CITIES
RENEWED ITS SUMMARY JUDGMENT MOTION.  AT ORAL ARGUMENT ON MAY 27, 1963,
THE TRIAL JUDGE REITERATED HIS VIEW THAT PETITIONER COULD POINT TO NO
FACTS SHOWING CITIES' PARTICIPATION IN THE CONSPIRACY AND THAT HILL'S
DEPOSITION AND OTHER DOCUMENTARY EVIDENCE FURTHER DISPROVED
PETITIONER'S THEORIES.  ON JUNE 28, 1963, PETITIONER FILED AN AMENDED
COMPLAINT ELIMINATING MOST OF THE SPECIFIC FACT ALLEGATIONS AND, IN
REGARD TO CITIES OMITTING THE SPECIFIC ALLEGATIONS ABOUT KUWAIT OIL OR
MEMBERSHIP IN THE CONSORTIUM AND INSTEAD MAKING THE GENERAL ALLEGATION
THAT CITIES JOINED THE CONSPIRACY IN A TIME AND MANNER NOT KNOWN TO
PETITIONER AND THAT THE OTHER OIL COMPANIES AND VARIOUS CO-CONSPIRATORS
"SECRETLY THREATENED, INDUCED AND CONSPIRED . . , CITIES . . . TO BREAK
OFF DEALINGS WITH" PETITIONER.  ON JUNE 23, 1964, THE TRIAL JUDGE
DENIED MOTIONS FOR SUMMARY JUDGMENT BY OTHER DEFENDANTS, POSTPONED
FINAL DISPOSITION OF CITIES' MOTION AND GAVE PETITIONER OPPORTUNITY
UNDER RULE 56(F) TO DEPOSE THE THREE SURVIVING MEMBERS OF CITIES'
EXECUTIVE STAFF WHO HAD PARTICIPATED IN THE ALLEGED IRANIAN OIL
DEALINGS AND TO HAVE CERTAIN DOCUMENTS PRODUCED.  THE DEPOSITIONS WERE
COMPLETED AND THE DOCUMENTS PRODUCED IN JULY AND AUGUST 1964.  IN
SEPTEMBER 1964 PETITIONER MOVED FOR THE PRODUCTION OF ALL DOCUMENTS IN
CITIES' OR THE OTHER DEFENDANTS' POSSESSION RELATING TO IRANIAN OIL
BETWEEN JUNE 1952 AND JANUARY 1955, AND DOCUMENTS FROM AND ORAL
EXAMINATION OF CARTER, A FORMER CITIES EMPLOYEE, WHO ACTED AS AN
INTERMEDIARY BETWEEN CITIES AND PETITIONER.  HIS COUNSEL'S SUPPORTING
AFFIDAVIT RELATED FACTS DESIGNED TO SHOW THAT CITIES' FAILURE TO FOLLOW
THROUGH ON ITS ORIGINAL INTEREST IN DEALING WITH PETITIONER WAS
SUBSTANTIAL EVIDENCE OF CITIES' PARTICIPATION IN THE BOYCOTT ALLEGEDLY
ORGANIZED BY THE OTHER DEFENDANTS.  CITIES AGAIN RENEWED ITS SUMMARY
JUDGMENT MOTION AND, FOLLOWING ARGUMENTS ON BOTH MOTIONS, THE TRIAL
JUDGE GRANTED SUMMARY JUDGMENT ON SEPTEMBER 8, 1965, HOLDING THAT
PETITIONER HAD FAILED TO MEET AMENDED RULE 56(E)'S REQUIREMENT THAT A
PARTY OPPOSING A PROPERLY SUPPORTED SUMMARY JUDGMENT MOTION SHOW BY
AFFIDAVIT OR OTHERWISE "SPECIFIC FACTS SHOWING THAT THERE IS A GENUINE
ISSUE FOR TRIAL."  THE COURT RULED AS TO PETITIONER'S CROSS-MOTION FOR
ADDITIONAL DISCOVERY UNDER RULE 56(F) THAT HIS TOTAL FAILURE TO PRODUCE
EVIDENCE TENDING TO SHOW CITIES' PART IN A CONSPIRACY DEMONSTRATED THAT
ADDITIONAL DISCOVERY WOULD BE A FISHING EXPEDITION AND CONSTITUTE
HARASSMENT.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE TRIAL JUDGE'S ORDERS PRIOR TO THE RENDITION OF SUMMARY
JUDGMENT WERE PROPER AND DID NOT PLACE UNFAIR LIMITS ON PETITIONER'S
ACCESS TO RELEVANT INFORMATION.  PP. 270-274; 290-299. 

     (A) PETITIONER HIMSELF FROM THE BEGINNING TOOK THE POSITION

  THAT THE TWO PAYOFFS (THE KUWAIT CONTRACT AND PARTICIPATION IN

 THE CONSORTIUM) WERE THE ONLY LINKS BETWEEN CITIES AND THE

  CONSPIRACY.  BY HILL'S AFFIDAVIT AND SUPPORTING DOCUMENTS CITIES

  APPARENTLY FELT IT COULD DISPROVE THESE CHARGES.  PP. 270-271. 

     (B) THE TRIAL JUDGE DID NOT ABUSE HIS DISCRETION IN ORDERING

  PETITIONER TO LIMIT INITIAL DISCOVERY TO HILL RATHER THAN JONES,

  CITIES' PRESIDENT, WITH WHOM PETITIONER HAD PRIMARILY DEALT;

  SINCE HILL HAD BEEN THE RANKING CITIES OFFICIAL IN CHARGE OF THE

  KUWAIT AND CONSORTIUM TRANSACTIONS IT IS UNREALISTIC TO SUGGEST

THAT JONES COULD HAVE INVOLVED CITIES IN SUCH A LARGE CONSPIRACY

  WITHOUT KNOWLEDGE ON THE PART OF ITS OTHER MAJOR EXECUTIVES; AND

  IN ANY CASE THE ISSUE BECAME MOOT AFTER JONES' DEATH, WHICH

  OCCURRED BEFORE PETITIONER WOULD HAVE BEEN ABLE TO DEPOSE HIM HAD

  THE TRIAL JUDGE PERMITTED HIM TO DO SO.  PP. 272; 294-295. 

     (C) AFTER HILL'S DEPOSITION AND THE ACCOMPANYING DOCUMENTS IN

  ITS SUPPORT PETITIONER NO LONGER SERIOUSLY CONTENDED THAT THE

  EVIDENCE RELATING TO KUWAIT AND CONSORTIUM WAS SUFFICIENT BY

  ITSELF TO RAISE A GENUINE ISSUE OF MATERIAL FACT.  P. 272. 

(D) THE ORDER PERMITTING PETITIONER TO DEPOSE THE SURVIVING

 CITIES OFFICIALS WITH WHOM HE HAD DEALT WAS NOT UNDULY

RESTRICTIVE; AND PETITIONER WAS NOT PREJUDICED BY NOT BEING

  ALLOWED TO DEPOSE OTHER EXECUTIVES AT THE TIME HE WAS ALLOWED TO

  DEPOSE HILL BECAUSE IT WAS NOT UNTIL HE HAD DEPOSED HILL THAT HE

  BEGAN TO SUGGEST OTHER POSSIBLE MOTIVATIONS FOR CITIES TO

  CONSPIRE.  PP. 272-274. 

     (E) AS PETITIONER HIMSELF ACKNOWLEDGES, CITIES WAS IN A
TOTALLY

  DIFFERENT POSITION FROM THE OTHER DEFENDANTS.  THE DISCOVERY

  GIVEN THE OTHER DEFENDANTS DID NOT UNDULY FAVOR CITIES, WHOSE OWN

  DEPOSITION TESTIMONY OF PETITIONER TOTALED ONLY 3 1/2 DAYS, SINCE

  PETITIONER BENEFITED AS MUCH VIS-A-VIS CITIES FROM THE

  DEPOSITIONS TAKEN BY THE OTHER DEFENDANTS AS CITIES DID.  THOUGH

  THE CASE HAS BEEN PENDING IN THE LOWER COURTS 11 YEARS, DURING

  WHICH TIME PETITIONER HAS NOT RECEIVED A FORMAL ANSWER FROM ANY

  DEFENDANT NOR BEEN PERMITTED GENERAL DISCOVERY, CITIES HAS BEEN

THE ONLY PARTY CONSISTENTLY DESIROUS OF EXPEDITING THE

  PROCEEDINGS AND PETITIONER HAS ALWAYS ACQUIESCED IN THE DELAYS. 

  PP. 290-292. 

     (F) EVEN ASSUMING THE DISPUTED CLAIM THAT PETITIONER WAS KEPT

  FROM OBTAINING GENERAL DISCOVERY OF THE OTHER DEFENDANTS DURING

  THE PERIOD HE SOUGHT TO BUILD A CASE AGAINST CITIES, PETITIONER

  HAD DISCOVERY AGAINST THE ONE PARTY HE IS NOW OPPOSING AND THAT

  PARTY WAS A "TANGENTIAL DEFENDANT," WHOSE LINK TO THE OTHER

DEFENDANTS WAS SHOWN TO BE FACTUALLY INCORRECT.  UNDER THOSE

  CIRCUMSTANCES IT WAS PETITIONER'S BURDEN, WHICH HE DID NOT MEET,

  OF SHOWING A SIGNIFICANT LIKELIHOOD THAT DISCOVERY OF THE OTHER

  DEFENDANTS WOULD BE FRUITFUL.  PP. 292-294. 

      (G) PETITIONER HAS NOT SHOWN ANY PREJUDICE BY NOT HAVING BEEN

  ALLOWED TO DEPOSE CARTER, A FORMER EMPLOYEE OF CITIES ORIGINALLY

  LISTED AS ONE OF PETITIONER'S ASSOCIATES, CONCERNING JONES'

  ALLEGED INTERFERENCE WITH CARTER'S EFFORTS AS AN INTERMEDIARY

  BETWEEN CITIES AND PETITIONER TO SEEL THE UNITED STATES

  GOVERNMENT IRANIAN GASOLINE FOR MILITARY USE; AND EVEN IF CARTER

  WOULD NOT VOLUNTARILY HAVE FURNISHED PETITIONER INFORMATION,

  PETITIONER HAS NOT EXPLAINED WHY HE DID NOT TRY TO SECURE

  CARTER'S TESTIMONY IN 1961 (WHEN THE TRIAL JUDGE DESCRIBED

  PETITIONER'S CASE AS "EXTREMELY WEAK") OR 1963 RATHER THAN

  WAITING TILL 1964.  PP. 295-297. 

     (H) THE TIME PERIOD TO WHICH PETITIONER'S DOCUMENTARY REQUESTS

  PERTAIN IS ONE LARGELY RELATING TO ACTIVITIES OUTSIDE THE PERIOD

  COVERED BY THIS PHASE OF THE LAWSUIT, AND IN VIEW OF PETITIONER'S

FAILURE (DESPITE SUBSTANTIAL DISCOVERY) TO OBTAIN SIGNIFICANT

  EVIDENCE OF CONSPIRACY FOR THE PERIOD DURING WHICH IT WAS ALLEGED

  TO HAVE DIRECTLY INJURED HIM, THE TRIAL COURT WAS WARRANTED IN

  DENYING THE ADDITIONAL DOCUMENTARY DISCOVERY PETITIONER

  REQUESTED.  PP. 297-298. 

2.  ON THE FACTS SHOWN SUMMARY JUDGMENT WAS CORRECTLY AWARDED TO
RESPONDENT, SINCE PETITIONER WAS UNABLE TO SHOW SUFFICIENT MATERIAL
FACTS TO RAISE GENUINE ISSUES FOR TRIAL OF HIS CASE AGAINST CITIES. 
PP. 274-288. 

     (A) AFTER IRAN HAD NATIONALIZED ANGLO-IRANIAN'S PROPERTIES,

  ANGLO-IRANIAN, CONTENDING THAT THE NATIONALIZATION VIOLATED

  INTERNATIONAL LAW, ANNOUNCED THAT IT WOULD PROTECT ITS RIGHTS IN

  ANY COUNTRY AND WOULD SUE ANY PURCHASER OF IRANIAN OIL. 

  PETITIONER'S EVIDENCE SHOWED THAT THE OTHER DEFENDANTS AND OTHER

  AMERICAN OIL COMPANIES, FEARFUL THAT IF IRANIAN NATIONALIZATION

OF ANGLO-IRANIAN'S PROPERTY SUCCEEDED, OTHER COUNTRIES WOULD

  FOLLOW SUIT, REFUSED TO DEAL WITH ANY COMPANY HANDLING IRANIAN

  OIL.  P. 278. 

     (B) WHEN THAT COMPELLING EXPLANATION FOR CITIES' FAILURE TO

  PURCHASE IRANIAN OIL IS COUPLED WITH CITIES' SHOWING THAT THE

  KUWAIT DEAL ANTEDATED NATIONALIZATION, THAT CITIES OPPOSED THE

  CONSORTIUM, AND ULTIMATELY REFUSED ITS MINIMAL SHARE THEREIN,

  PETITIONER'S SUGGESTION THAT CITIES WAS "BOUGHT OFF" BECOMES

INSUPPORTABLE.  PP. 278-279. 

     (C) PETITIONER'S CONSISTENT ARGUMENT THAT CITIES' INTERESTS IN

  THIS SITUATION WERE OPPOSED TO THOSE OF THE OTHER DEFENDANTS

  PROMPTS HIM TO INSIST THAT CITIES' MOTIVE FOR CONSPIRING IS NOT

  CONTROLLING, BUT FOR PETITIONER TO SAY THAT CITIES' FAILURE TO

  DEAL WITH HIM SHOWED CITIES' PARTICIPATION IN THE CONSPIRACY IS

  TO RELY ON MOTIVE.  P. 279. 

     (D) A REPORT PREPARED FOR TRANSMISSION TO IRANIAN PREMIER

  MOSSADEGH IN OCTOBER 1952, AFTER JONES RETURNED FROM IRAN AND

  WATSON, CITIES' SENIOR VICE PRESIDENT, ANNOUNCED TO PETITIONER

  THAT CITIES WAS NO LONGER INTERESTED IN IRANIAN OIL, IS USED BY

  PETITIONER IN TWO OPPOSING WAYS AND DOES NOT FURTHER PETITIONER'S

  THEORY OF CONSPIRACY.  PP. 281-282. 

    (E) A LETTER SENT BY JONES TO THE INCOMING SECRETARY OF STATE

  AND ATTORNEY GENERAL IN JANUARY 1953 THAT THE ONLY SOLUTION WAS

  FOR IRAN TO REACH AN ACCOMMODATION WITH THE BRITISH, AND A

  SUPPORTING LEGAL MEMORANDUM THAT IRAN UNDER INTERNATIONAL LAW HAD

  THE RIGHT TO NATIONALIZE ANGLO-IRANIAN'S PROPERTIES, LIKEWISE HAD

  NO PROBATIVE VALUE FOR PETITIONER'S CASE.  PP. 282-283. 

     (F) PETITIONER'S FAILURE TO SELL OIL TO RICHFIELD, OF WHICH

  CITIES WAS A MAJOR THOUGH NOT A CONTROLLING STOCKHOLDER, ADDS

  NOTHING TO THE CASE AGAINST CITIES.  PP. 283-284. 

     (G) JONES' DISASSOCIATING HIMSELF FROM CARTER'S EFFORTS ON

  PETITIONER'S BEHALF TO SELL IRANIAN PRODUCED AVIATION GASOLINE TO

  THE UNITED STATES AIR FORCE OCCURRED AT A TIME WHEN PETITIONER

  CONCEDED THAT CITIES WAS NOT YET A MEMBER OF THE CONSPIRACY AND

  IN ANY CASE SEEMS TO HAVE CONSTITUTED NO MORE THAN A DESIRE BY

  JONES NOT TO BE USED IN SOMEONE ELSE'S FINANCIAL DEALINGS.  P.

  284. 

     (H) IN VIEW OF THE BUSINESS RELATIONSHIP BETWEEN PETITIONER,

  CITIES, AND THE OTHER DEFENDANTS, IT IS MUCH MORE PLAUSIBLE TO

BELIEVE THAT CITIES' INTERESTS COINCIDED, RATHER THAN CONFLICTED,

  WITH THOSE OF PETITIONER.  POLLER V. COLUMBIA BROADCASTING

  SYSTEM, 368 U.S. 464 (1962), DISTINGUISHED.  PP. 284-286. 

     (I) PETITIONER'S POSITION THAT CITIES' FAILURE TO DEAL WITH
HIM

  (THE ONE FACT THAT PETITIONER HAS PRODUCED) IS SUFFICIENTLY

  PROBATIVE OF CONSPIRACY TO WITHSTAND SUMMARY JUDGMENT CANNOT BE

  SUPPORTED WHERE NO INTEREST OF CITIES WAS SHOWN TO PARALLEL THE

  INTERESTS OF THE OTHER DEFENDANTS.  INTERSTATE CIRCUIT, INC. V.

  UNITED STATES, 306 U.S. 208 (1939), AND THEATRE ENTERPRISES, INC.

V. PARAMOUNT DISTRIBUTING CORP., 346 U.S. 537 (1954),

DISTINGUISHED.  PP. 286-288. 

3.  THE LOWER COURTS CORRECTLY HELD THAT AMENDED FED. RULE CIV.
PROC. 56(E) PLACED UPON PETITIONER THE BURDEN OF PRODUCING EVIDENCE OF
CONSPIRACY AFTER CITIES CONCLUSIVELY SHOWED THAT THE FACTS UPON WHICH
PETITIONER RELIED TO SUPPORT HIS CONSPIRACY ALLEGATION WERE NOT
SUSCEPTIBLE OF THE INTERPRETATION HE SOUGHT TO GIVE THEM.  PP. 288-290 

361 F.2D 671, AFFIRMED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

AT ISSUE IN THIS CASE IS THE PROPRIETY OF AN AWARD OF SUMMARY
JUDGMENT IN FAVOR OF RESPONDENT CITIES SERVICE IN A TREBLE-DAMAGE
ANTITRUST ACTION.  THE DISTRICT COURT HELD THERE WAS NO GENUINE ISSUE
AS TO MATERIAL FACTS BETWEEN THE PARTIES AND THAT RESPONDENT WAS
ENTITLED TO JUDGMENT AS A MATTER OF LAW.  38 F.R.D. 170 (D.C.S.D.N.Y.
1965).  THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  361 F.2D
671 (1966).  THIS COURT GRANTED CERTIORARI, 385 U.S. 1024 (1967), TO
DETERMINE WHETHER THE DECISIONS BELOW WERE IN CONFORMITY WITH POLLER V.
COLUMBIA BROADCASTING SYSTEM, INC., 368 U.S. 464 (1962).  WE CONCLUDE
THAT POLLER AND OTHER DECISIONS OF THIS COURT WERE CORRECTLY APPLIED
AND, ACCORDINGLY, WE AFFIRM. 

BECAUSE THE QUESTION WHETHER SUMMARY JUDGMENT IS APPROPRIATE IN ANY
CASE IS ONE TO BE DECIDED UPON THE PARTICULAR FACTS OF THAT CASE, WE
SHALL SET FORTH THE BACKGROUND OF THIS LITIGATION IN SOME DETAIL (PART
I) BEFORE TURNING TO THE SPECIFIC ISSUES PETITIONER RAISES (PARTS II
V). 

     I. 

ON JUNE 11, 1956, PETITIONER WALDRON /1/  FILED A PRIVATE ANTITRUST
COMPLAINT IN THE SOUTHERN DISTRICT OF NEW YORK AGAINST SEVEN LARGE OIL
COMPANIES:  BRITISH PETROLEUM CO., LTD. (FORMERLY ANGLO-IRANIAN OIL
CO.), GULF OIL CORP., /2/  SOCONY MOBIL OIL CO., STANDARD OIL CO. OF
CALIFORNIA, STANDARD OIL CO. OF NEW JERSEY, THE TEXAS CO., AND CITIES
SERVICE CO. THE COMPLAINT CONTAINED ESSENTIALLY TWO SERIES OF
ALLEGATIONS.  THE FIRST WAS COPIED FROM THE COMPLAINT IN A THEN-PENDING
CIVIL ACTION BY THE UNITED STATES AGAINST THOSE DEFENDANTS OTHER THAN
CITIES SERVICE, ALLEGING THE FORMATION AND MAINTENANCE BY THEM OF A
WORLDWIDE OIL CARTEL SINCE 1928.  THE SECOND SERIES OF ALLEGATIONS
DEALT SPECIFICALLY WITH A CONSPIRACY CLAIMED TO HAVE BEEN ENTERED INTO
AT THE TIME OF THE NATIONALIZATION OF THE PROPERTIES OF THE ANGLO
IRANIAN OIL CO. BY THE GOVERNMENT OF IRAN IN MAY 1951.  THE DEFENDANTS
OTHER THAN CITIES SERVICE, IT WAS ASSERTED, AGREED AT THAT TIME TO
BOYCOTT IRANIAN OIL IN ALL WORLD MARKETS UNTIL IRAN SHOULD AGREE TO
RETURN ANGLO-IRANIAN'S PROPERTY AND CONCESSION RIGHTS.  WHILE THE
DISPUTE BETWEEN ANGLO-IRANIAN AND THE IRANIAN GOVERNMENT UNDER PREMIER
MOSSADEGH WAS STILL CONTINUING, WALDRON AND SOME OF HIS ASSOCIATES
ALLEGEDLY SUCCEEDED IN OBTAINING A CONTRACT TO PURCHASE 15,000,000
METRIC TONS OF CRUDE OIL OR REFINED PRODUCTS FROM THE NATIONAL IRANIAN
OIL CO. (NIOC), THE COMPANY FORMED TO TAKE OVER ANGLO-IRANIAN'S
NATIONALIZED PROPERTIES, OVER A FIVE-YEAR PERIOD AT A RATE
SUBSTANTIALLY LESS THAN THE TEN CURRENT POSTED PRICE FOR PERSIAN GULF
OIL.  NIOC IN RETURN AGREED NOT TO DEAL WITH ANYBODY OTHER THAN WALDRON
IN THE UNITED STATES MARKET. 

THE COMPLAINT NEXT STATED THAT THE DEFENDANTS OTHER THAN CITIES
SERVICE CONSPIRED TO PREVENT PETITIONER FROM SELLING ANY OF THE OIL TO
WHICH HE WAS ENTITLED UNDER HIS CONTRACT WITH NIOC.  IT WAS FURTHER
ALLEGED THAT CITIES SERVICE, AFTER FIRST ENGAGING IN EXTENSIVE
NEGOTIATIONS WITH WALDRON WITH AN EYE TOWARD PARTICIPATING IN THE
OPERATION OF THE IRANIAN OIL INDUSTRY, BROKE OFF DEALING AND JOINED THE
CONSPIRACY TO BOYCOTT HIM AS A RESULT OF HAVING RECEIVED WHAT AMOUNTED
TO A BRIBE FROM GULF AND ANGLO-IRANIAN, NAMELY, A LARGE SUPPLY OF OIL
FROM KUWAIT AT A PRICE EVEN LOWER THAN THAT PETITIONER COULD OFFER
CITIES PURSUANT TO HIS CONTRACT WITH NIOC.  FINALLY, THE DEFENDANTS
WERE ALLEGED TO HAVE ENTERED INTO A CONSORTIUM AGREEMENT IN 1954,
PURSUANT TO THEIR ATTEMPT TO MONOPOLIZE MIDDLE EAST OIL PRODUCTION,
WHICH PARCELED OUT SUBSTANTIALLY ALL THE IRANIAN OIL PRODUCTION BETWEEN
THEM.  CITIES SERVICE WAS CLAIMED TO HAVE BEEN PERMITTED TO PURCHASE A
SHARE IN THE CONSORTIUM.  PETITIONER ASSERTED THAT THE BOYCOTT
CONSPIRACY CARRIED OUT BY ALL THE DEFENDANTS COMPLETELY FRUSTRATED HIS
ABILITY TO SELL OIL UNDER HIS CONTRACT AND ACCORDINGLY SOUGHT TREBLE
DAMAGES FROM THEM IN THE AMOUNT OF $109,000,000. 

WITHIN THE TIME SET FOR THE DEFENDANTS TO ANSWER THE COMPLAINT,
VARIOUS OF THEM MOVED TO TAKE PETITIONER'S DEPOSITION, AND ALL OF THEM
MOVED TO POSTPONE THE FILING OF THEIR ANSWERS UNTIL THE COMPLETION OF
THAT DEPOSITION.  THE MOTIONS WERE ACCOMPANIED BY AFFIDAVITS OF COUNSEL
THAT THE LEGAL QUESTIONS PRESENTED BY THE COMPLAINT WERE
EXTRAORDINARILY COMPLEX AND THAT THEY HAD INSUFFICIENT INFORMATION
ABOUT PETITIONER'S BUSINESS DEALINGS WITH THE IRANIAN GOVERNMENT TO
PERMIT THEM ADEQUATELY TO PREPARE THEIR CLIENTS' ANSWERS WITHIN THE 20
DAY TIME LIMIT SET BY RULE 12(A) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  THESE MOTIONS WERE GRANTED BY JUDGE WEINFELD, WHO, IN
ADDITION, STAYED PETITIONER FROM ANY DISCOVERY OF HIS OWN UNTIL
COMPLETION OF THE DEFENDANTS' DISCOVERY, APPARENTLY PURSUANT TO THEN
EXISTING PRACTICE IN THE SOUTHERN DISTRICT.  /3/ 

THE DEPOSITION OF WALDRON COMMENCED ON SEPTEMBER 10, 1956, AND
CONTINUED UNTIL JULY 3, 1957, AT WHICH TIME PETITIONER'S COUNSEL
ANNOUNCED HIS INTENTION TO LIMIT FURTHER EXAMINATION.  NOTHING FURTHER
WAS DONE BY ANY PARTY UNTIL DECEMBER 30, 1957, AT WHICH TIME A MOTION
WAS MADE TO TERMINATE THE TAKING OF WALDRON'S DEPOSITION.  BY THIS TIME
62 DAYS' TESTIMONY HAD BEEN TAKEN OVER A PERIOD OF MORE THAN 15
MONTHS.  ALL ADJOURNMENTS UP TO THIS OINT WERE EITHER AT WALDRON'S
REQUEST OR WITH HIS CONSENT.  MEANWHILE, VARIOUS OF THE DEFENDANTS HAD
NOTICED THE DEPOSITIONS OF PETITIONER'S ASSOCIATES, RICHARD S. NELSON,
JAMES A. BENTLEY, JAMES E. ZOES, RAY CARTER, AND ADDISION BROWN, IN
OCTOBER AND NOVEMBER 1956.  PURSUANT TO SUCCESSIVE STIPULATIONS ENTERED
INTO BETWEEN PETITIONER AND THE DEFENDANTS, THE TAKING OF THESE
DEPOSITIONS HAD BEEN POSTPONED UP TO THE DATE OF PETITIONER'S MOTION TO
TERMINATE THE TAKING OF HIS OWN DEPOSITION.  IN THAT MOTION PETITIONER
ALSO MOVED TO VACATE THE NOTICES TO TAKE DEPOSITIONS OF HIS
ASSOCIATES. 

IN RESPONSE TO PETITIONER'S CLAIMS THAT THE PROTRACTED EXAMINATION
OF HIM BY THE DEFENDANTS CONSTITUTED HARASSMENT AND AN UNDUE BURDEN ON
HIM, THE DEFENDANTS POINTED OUT THAT ONLY ONE OF THEIR NUMBER HAD AS
YET EXAMINED WALDRON AND THAT THE LENGTH OF TIME OVER WHICH THE
EXAMINATION HAD PROCEEDED HAD BEEN WITH HIS COMPLETE ACQUIESCENCE.  AS
FOR PETITIONER'S FINANCIAL HARDSHIP CONTENTION, THE DEFENDANTS
SUGGESTED THAT, IN VIEW OF THE DAMAGES SOUGHT BY PETITIONER, IT WAS NOT
INAPPROPRIATE THAT HE BE REQUIRED TO SPEND CONSIDERABLE TIME CLARIFYING
HIS CLAIMS BEFORE TRIAL.  JUDGE HERLANDS DENIED THE MOTION ON FEBURARY
11, 1958, AFTER ARGUMENT; HE ORDERED, HOWEVER, THAT FURTHER EXAMINATION
OF THE PETITIONER BY THE SEVEN DEFENDANTS BE LIMITED TO 52 WORKING
DAYS, OF WHICH 10 WERE ALLOTTED TO RESPONDENT CITIES SERVICE.  IN
ADDITION 174 1/2 DAYS WERE SCHEDULED FOR THE EXAMINATION OF WALDRON'S
FIVE ASSOCIATES, OF WHICH 31 WENT TO CITIES SERVICE.  THE EXAMINATIONS
WERE TO BE CONSECUTIVE AND WERE SET TO COMMENCE ON MARCH 10, 1958,
UNLESS THE PARTIES AGREED OTHERWISE.  THE DEFENDANTS WERE AUTHORIZED TO
POSTPONE THE FILING OF THEIR ANSWERS UNTIL 30 DAYS AFTER THE COMPLETION
OF THE DEPOSITIONS, AND PETITIONER WAS STAYED FROM UNDERTAKING ANY
DISCOVERY PROCEEDINGS OF HIS OWN DURING THAT PERIOD. 

PURSUANT TO STIPULATION THE CONTINUED EXAMINATION OF PETITIONER DID
NOT RESUME UNTIL SEPTEMBER 15, 1958, AND WAS NOT TERMINATED UNTIL
OCTOBER 1959.  TWENTY-SIX DAYS WERE SPEND DEPOSING WALDRON IN THE
LATTER PART OF 1958 AND ONLY SIX DAYS DURING ALL OF 1959, OF WHICH 3
1/2 WERE UTILIZED BY COUNSEL FOR CITIES SERVICE.  PETITIONER'S
ASSOCIATES WERE DEPOSED BETWEEN JANUARY 1960 AND APRIL 1962 FOR 58
WORKING DAYS, OF WHICH 3 1/2 WERE USED BY COUNSEL FOR CITIES SERVICE. 
WALDERON WAS THEN EXAMINED FOR ONE ADDITIONAL DAY IN 1962. 

THUS, BETWEEN SEPTEMBER 1956 AND MAY 1962, A PERIOD OF OVER 5 1/2
YEARS, WALDRON AND HIS ASSOCIATES WERE DEPOSED FOR A TOTAL OF 153 DAYS,
OF WHICH ONLY SEVEN DAYS WERE ATTRIBUTABLE TO CITIES SERVICE.  THE
VARIOUS STIPULATIONS THAT RESULTED IN PROLONGING THE PERIOD REQUIRED
FOR THE TAKING OF THESE DEPOSITIONS WERE ALL ENTERED INTO EITHER AT THE
REQUEST, OR WITH THE AGREEMENET, OF PETITIONER. 

DURING THE COURSE OF HIS DEPOSITION BY CITIES SERVICE, WALDRON
STATED THAT HE HAD AT FIRST NOT ATTRIBUTED CITIES' FAILURE TO CONCLUDE
SOME SORT OF A DEAL WITH HIM FOR IRANIAN OIL TO ITS PARTICIPATION IN
THE BOYCOTT.  HE EXPLAINED THAT IT WAS HIS DISCOVERY OF CITIES'
PURCHASE OF SUBSTANTIAL AMOUNTS OF KUWAIT OIL FROM GULF, PLUS ITS
SUBSEQUENT PARTICIPATION IN THE 1954 CONSORTIUM, THAT PROMPTED HIM TO
JOIN IT IN HIS COMPLAINT AS A MEMBER OF THE CONSPIRACY.  ACCORDINGLY,
WHEN CITIES MOVED FOR SUMMARY JUDGMENT IN ITS FAVOR IN 1960, IT DID SO
ON THE GROUND THAT THE AFFIDAVIT OF CITIES' SENIOR VICE PRESIDENT IN
CHARGE OF FOREIGN OPERATIONS, GEORGE H. HILL, AND THE ACCOMPANYING
DOCUMENTS FROM CITIES' FILES THAT WERE SUBMITTED IN SUPPORT OF THE
MOTION CONCLUSIVELY DISPROVED PETITIONER'S THEORY THAT IT HAD JOINED
THE ALLEGED BOYCOTT CONSPIRACY BECAUSE IT HAD BEEN BOUGHT OFF BY THE
OTHER CONSPIRATORS. 

IN BRIEF, THE DOCUMENTS DEMONSTRATED THAT CITIES HAD BEEN ENGAGED IN
NEGOTIATIONS WITH GULF /4/  TO PURCHASE KUWAIT CRUDE OIL SINCE 1948,
AND THAT A SUBSTANTIALLY FINAL AGREEMENT, ALTHOUGH NOT THE ACTUAL
CONCLUSION OF A CONTRACT, HAD BEEN REACHED ON THE PROPOSED DEAL PRIOR
TO THE TIME PETITIONER FIRST APPROACHED CITIES.  /5/  AS FOR THE
CONSORTIUM, THE DOCUMENTS SHOWED THAT CITIES HAD ONLY COMMENCED
NEGOTIATIONS WITH THE DEFENDANTS TO OBTAIN PARTICIPATION THEREIN SOME
TWO YEARS AFTER IT WAS ALLEGED TO HAVE JOINED THE CONSPIRACY AND THAT
THE SHARE IT WAS EVENTUALLY OFFERED, OVER ITS STRENUOUS OBJECTIONS, WAS
SO SMALL THAT IT TRANSFERRED THE SHARE TO THE RICHFIELD OIL CO., IN
WHICH IT HELD A MINORITY STOCK INTEREST. 

IN REPLY TO CITIES' MOTION, PETITIONER'S COUNSEL REITERATED HIS
CONTENTION THAT THE COURSE OF DEALINGS BETWEEN WALDRON AND HIS
ASSOCIATES, ON THE ONE HAND, AND VARIOUS OF CITIES' EXECUTIVE
PERSONNEL, ESPECIALLY ITS PRESIDENT, W. ALTON JONES, ON THE OTHER,
RAISED AN INFERENCE OF CONSPIRACY BECAUSE THE MOST PROBABLE CONCLUSION
TO BE DRAWN FROM CITIES' DECISION TO PASS UP THE ASSERTEDLY EXTREMELY
BENEFICIAL DEAL PROPOSED BY PETITIONER, NOTWITHSTANDING ITS NEED FOR
ADDITIONAL SUPPLIES OF IMPORTED OIL, WAS THAT IN SOME MANNER CITIES
EITHER HAD BEEN "REACHED" OR HAD USED ITS NEGOTIATIONS WITH -ALDRON AS
A MEANS OF FORCING ITS WAY INTO THE ALLEGED MIDDLE EAST OIL CARTEL. 
PETITIONER ALSO SUGGESTED THAT CITIES MIGHT WELL HAVE MADE SOME SORT OF
INFORMAL AGREEMENT WITH THE OTHER DEFENDANTS CONCERNING THE CONSORTIUM
THAT WAS NOT REVEALED BY THE DOCUMENTS AND THAT CITIES MIGHT HAVE
EXPECTED, AT THE TIME SUCH AN AGREEMENT WAS MADE, A MORE PROFITABLE
SHARE THEREIN THAN IT WAS EVENTUALLY OFFERED. 

IN RESPONSE TO THESE ARGUMENTS, JUDGE HERLANDS, WHO HAD BY THIS TIME
BEEN ASSIGNED TO THE CASE FOR ALL PURPOSES, HANDED DOWN A MEMORANDUM
DECISION ON MARCH 30, 1961, POSTPONING DETERMINATION OF CITIES' MOTION
FOR SUMMARY JUDGMENT.  IN HIS OPINION JUDGE HERLANDS STATED THAT IT WAS
"DOUBTFUL" WHETHER ANY ISSUE AS TO ANY MATERIAL FACT EXISTED AND THAT
CITIES HAD BEEN NAMED A DEFENDANT ON MERE "SUSPICION."  BECAUSE HE
JUDGED PETITIONER'S CLAIM AGAINST CITIES "SO INSUBSTANTIAL," HE RULED
THAT PETITIONER WOULD NOT BE GIVEN "CARTE BLANCHE AUTHORITY TO CONDUCT
UNTRAMMELED PRE-TRIAL PROCEEDINGS," BUT THAT SUCH PROCEEDINGS WOULD BE
"CLOSELY REGULATED."  SUBSEQUENTLY, JUDGE HERLANDS ENTERED AN ORDER
PROVIDING THAT PETITIONER WAS TO BE ALLOWED TO TAKE THE DEPOSITION OF
HILL, THE CITIES' EXECUTIVE WHO HAD BEEN IN CHARGE OF NEGOTIATING THE
KUWAIT DEAL WITH GULF AND WHO HAD ALSO CARRIED OUT CITIES' ATTEMPTS TO
SECURE A PARTICIPATION IN THE CONSORTIUM. 

AT THE HEARING IN 1961 ON THE PROPOSED ORDER TO IMPLEMENT THE
COURT'S DECISION, COUNSEL FOR WALDRON ASKED TO DEPOSE CITIES' PRESIDENT
JONES FIRST.  CONTRARY TO WHAT APPEARS TO BE THE POSITION TAKEN NOW,
PETITIONER ACKNOWLEDGED AND ACCEPTED JUDGE HERLANDS' ORDER THAT HIS
DISCOVERY OF CITIES WAS TO BE CARRIED OUT PURSUANT TO RULE 56(F), FED.
RULES CIV. PROC., WHICH PROVIDES FOR COMPARATIVELY LIMITED DISCOVERY
FOR THE PURPOSE OF SHOWING FACTS SUFFICIENT TO WITHSTAND A SUMMARY
JUDGMENT MOTION, RATHER THAN RULE 26, WHICH PROVIDES FOR BROAD PRETRIAL
DISCOVERY.  PETITIONER'S SOLE OBJECTION TO THE PROPOSED ORDER WAS THAT
JONES SHOULD BE DEPOSED RATHER THAN HILL. 

IN RESPONSE TO JUDGE HERLANDS' OBSERVATION THAT HILL WAS THE MAN WHO
WAS IN THE BEST POSITION TO PROVIDE INFORMATION ABOUT THE TWO ALLEGED
FACTS RELIED ON IN THE COMPLAINT TO LINK CITIES TO THE CONSPIRACY,
PETITIONER'S COUNSEL FOR THE FIRST TIME ARGUED THAT THE KUWAIT DEAL AND
THE CONSORTIUM AGREEMENT WERE NOT CRUCIAL TO THE CASE.  WHILE
MAINTAINING THE POSITION THAT THOSE TWO ITEMS WERE SIGNIFICANT, COUNSEL
STATED THAT CITIES' MOTIVE FOR ENTERING THE ALLEGED CONSPIRACY WAS
BASICALLY IRRELEVANT.  HE ARGUED THAT THE EVIDENCE SHOWED THAT CITIES
HAD EMBARKED ON A COURSE OF DEALING WITH WALDRON AND THEN INEXPLICABLY
HAD BROKEN IT OFF, AND THAT THIS SEQUENCE OF EVENTS WAS IN ITSELF
SUFFICIENT EVIDENCE OF CONSPIRACY TO WITHSTAND SUMMARY JUDGMENT AND TO
ENTITLE PETITIONER TO SUFFICIENT DISCOVERY TO ASCERTAIN THE REASON FOR
THE BREAKOFF.     THIS ARGUMENT WAS REJECTED AND THE TRIAL JUDGE
CLEARLY STATED THAT TO WITHSTAND SUMMARY JUDGMENT PETITIONER WOULD HAVE
TO PRODUCE SOME FACTUAL EVIDENCE OF CONSPIRACY BEYOND CITIES' MERE
FAILURE TO CARRY THROUGH ON A DEAL FOR IRANIAN OIL.  THE TAKING OF
HILL'S DEPOSITION WAS SCHEDULED, WITHOUT OBJECTION BY PETITIONER, TO
COMMENCE UPON THE COMPLETION OF THE DEPOSITIONS OF PETITIONER'S
ASSOCIATES. 

MORE THAN A YEAR THEN ELAPSED, DURING WHICH TIME, AGAIN PURSUANT TO
STIPULATIONS BETWEEN ALL THE PARTIES, ONLY 25 DAYS WERE SPENT TAKING
THE DEPOSITIONS OF PETITIONER'S ASSOCIATES.  IMMEDIATELY AFTER THE
COMPLETION OF THESE DEPOSITIONS, IN RESPONSE TO MOTIONS TO STRIKE
PORTIONS OF THE COMPLAINT MADE BY VARIOUS DEFENDANTS OTHER THAN CITIES,
PETITIONER ANNOUNCED HIS INTENTION TO AMEND HIS COMPLAINT AND ENTERED
INTO A STIPULATION WITH THE OTHER PARTIES EXTENDING THEIR TIME TO MOVE
OR ANSWER UNTIL 30 DAYS AFTER SERVICE ON THEM OF THE AMENDED
COMPLAINT.  THIS STIPULATION WAS ENTERED INTO ON JUNE 1, 1962,
APPROXIMATELY 30 DAYS PRIOR TO THE TIME BY WHICH, UNDER JUDGE HERLANDS'
PREVIOUS ORDER, THE DEFENDANTS WOULD HAVE BEEN REQUIRED TO ANSWER THE
COMPLAINT OR MOVE FOR SUMMARY JUDGMENT.  SOME FIVE WEEKS LATER, AT THE
REQUEST OF PETITIONER'S COUNSEL, A NEW STIPULATION WAS ENTERED INTO
POSTPONING THE TAKING OF HILL'S DEPOSITION UNTIL SEPTEMBER 10, 1962,
AND STAYING PETITIONER'S UNDERTAKING TO FILE AN AMENDED COMPLAINT
PENDING COMPLETION OF THE HILL DEPOSITION. 

BETWEEN SEPTEMBER 10, 1962, AND FEBURARY 27, 1963, PURSUANT TO
STIPULATIONS BETWEEN THE PARTIES, PETITIONER DEPOSED MR. HILL FOR A
TOTAL OF SIX WORKING DAYS.  THEN, AT THE BEGINNINF OF MAY, PETITIONER
MOVED FOR ADDITIONAL DISCOVERY.  IN RESPONSE TO THIS MOTION RESPONDENT
CITIES SERVICE RENEWED ITS SUMMARY JUDGMENT MOTION IN ADDITION TO
OPPOSING FURTHER DISCOVERY BY PETITIONER.  AT ORAL ARGUMENT ON MAY 27,
1963, JUDGE HERLANDS REITERATED HIS OPINION THAT THUS FAR WALDRON WAS
STILL UNABLE TO POINT TO ANY FACTS TENDING TO SHOW THAT CITIES HAD
PARTICIPATED IN THE ALLEGED CONSPIRACY.  INDEED, THE DEPOSITION
TESTIMONY OF HILL, PLUS VARIOUS ADDITIONAL DOCUMENTARY EVIDENCE
SUPPLIED IN CONNECTION THEREWITH, HAD FURTHER DISPROVED THE KUWAIT AND
CONSORTIUM PAYOFF THEORITES.  THIS EVIDENCE SHOWED THAT CITIES HAD
ACTIVELY RESISTED FORMATION OF THE CONSORTIUM BY THE OTHER DEFENDANTS,
EVEN TO THE EXTENT OF MAKING APPROACHES TO THE UNITED STATES GOVERNMENT
IN THE HOPE OF SECURING ITS INTERVENTION IN THE SITUATION. 

WHILE THE RESPECTIVE MOTIONS WERE PENDING BEFORE JUDGE HERLANDS,
PEITIONER ON JUNE 28, 1963, FILED AN AMENDED COMPLAINT.  IT DIFFERED
FROM THE ORIGINAL COMPLAINT IN THAT MOST OF THE SPECIFIC FACTS ALLEGED
IN THE ORIGINAL WERE REPLACED BY MORE GENERAL ALLEGATIONS OF CONSPIRACY
AND BOYCOTT.  IN REGARD TO CITIES, THE COMPLAINT WAS AMENDED TO OMIT
ALL REFERENCE TO ANY FACTUAL ALLEGATIONS INVOLVING EITHER KUWAIT OIL OR
MEMBERSHIP IN THE 1954 CONSORTIUM.  IN ADDITION, THOSE ALLEGATIONS OF
THE ORIGINAL COMPLAINT WHICH WERE DIRECTED AT THE OTHER DEFENDANTS AND
WHICH HAD SPECIFICALLY EXCLUDED CITIES WERE MADE MORE GENERAL, AND THE
LANGUAGE EXCLUDING CITIES WAS REPLACED BY LANGUAGE REFERRING SIMPLY TO
UNSPECIFIED CO-CONSPIRATORS.  IN PLACE OF THE PREVIOUS SPECIFIC
ALLEGATIONS DIRECTED AT CITIES, THE AMENDED COMPLAINT SUBSTITUTED TWO
NEW FORMULATIONS:  FIRST, A GENERAL ALLEGATION THAT CITIES JOINED THE
CONSPIRACY AT A TIME AND IN A MANNER NOT KNOWN TO THE PLAINTIFF; AND,
SECOND, THAT THE OTHER DEFENDANTS AND VARIOUS OF THEIR CO-CONSPIRATORS
"SECRETLY THREATENED, INDUCED ANC CONSPIRED WITH DEFENDANT CITIES
SERVICE TO BREAK OFF ALL DEALINGS WITH PLAINTIFF." 

JUDGE HERLANDS HELD PETITIONER'S AND CITIES' CROSS-MOTIONS UNDER
ADVISEMENT FOR A LITTLE MORE THAN A YEAR WHILE HE CONSIDERED MOTIONS
FOR SUMMARY JUDGMENT AGAINST PETITINER MADE BY THE OTHER DEFENDANTS. 
THEN, ON JUNE 23, 1964, IN A LONG AND COMPREHENSIVE OPINION DEALING
WITH BOTH SETS OF MOTIONS, HE DENIED THE MOTIONS FOR SUMMARY JUDGMENT
MADE BY THE OTHER DEFENDANTS, AGAINST POSTPONED FINAL DISPOSITION OF
CITIES' MOTION AND GRANTED WALDRON THE OPPORTUNITY TO CONDUCT FURTHER
DISCOVERY OF CITIES UNDER RULE 56(F).  /6/  PRESUMABLY, DECISION ON
PETITIONER'S MOTION WAS DEFERRED SO LONG BECAUSE, HAD THE MOTIONS OF
THE DEFENDANTS OTHER THAN CITIES FOR SUMMARY JUDGMENT BEEN GRANTED,
PETITIONER'S CASE AGAINST CITIES WOULD HAVE ALSO BEEN TERMINATED.  IN
ANY EVENT, THE ORDER IMPLEMENTING THE DECISION PERMITTED PETITIONER TO
DEPOSE ALL THOSE MEMBERS OF CITIES' EXECUTIVE STAFF THEN ALIVE /7/  WHO
HE ALLEGED HAD PARTICIPATED AT ALL IN THE DEALINGS CONCERNING IRANIAN
OIL, NAMELY, BURL S. WATSON, CITIES' CHAIRMAN OF THE BOARD, ALFRED P.
FRAME, CITIES' FIRST VICE PRESIDENT, AND J. EDGAR HESTON, CITIES'
MANAGER OF OIL PRODUCTION.  THE ORDER ALSO DIRECTED CITIES TO PRODUCE
ALL DOCUMENTS AND MEMORANDA RELATING TO (A) THE KUWAIT AND CONSORTIUM
ISSUES, (B) CONVERSATIONS AND COMMUNICATIONS BETWEEN IT AND ANY OTHER
DEFENDANT BETWEEN JUNE 11, 1952, AND OCTOBER 1, 1952, CONCERNING
PETITIONER, HIS ASSOCIATES, AND CITIES' DEALINGS IN CONNECTION WITH
IRANIAN OIL, (C) CONVERSATIONS AND COMMUNICATIONS BETWEEN CITIES AND
ANY OTHER DEFENDANT BETWEEN JUNE 11, 1953, AND SEPTEMBER 30, 1953,
PERTAINING TO NEGOTIATIONS BETWEEN WALDRON AND THE RICHFIELD OIL CORP.
CONCERNING THE PURCHASE BY RICHFIELD OF IRANIAN OIL, AND (D)
CONVERSATIONS AND COMMUNICATIONS BETWEEN ANY DEPONENT FOR CITIES AND
ANY OTHER CITIES' EMPLOYEE INVOLVING THE SUBJECT MATTER DESCRIBED IN
THE PRECEDING CATEGORIES.  THE DEPOSITIONS OF THE THREE CITIES'
EXECUTIVES WERE COMPLETED DURING THE MONTHS OF JULY AND AUGUST 1964 AND
IN CONNECTION THEREWITH MORE THAN 140 DOCUMENTS WERE PRODUCED. 

IN SEPTEMBER 1964 PETITIONER MOVED FOR THE FOLLOWING ADDITIONAL
DISCOVERY:  FIRST, THE PRODUCTION OF ALL DOCUMENTS IN THE POSSESSION OF
CITIES DEALING WITH CITIES' ACTIVITIES IN CONNECTION WITH IRANIAN OIL
BETWEEN JUNE 1952 AND JANUARY 1955; SECOND, THE PRODUCTION OF ALL
DOCUMENTS RELATING TO THE SAME SUBJECT MATTER IN THE POSSESSION OF THE
OTHER DEFENDANTS; AND THIRD, THE PRODUCTION OF ALL RELEVANT DOCUMENTS
FROM, AND ORAL EXAMINATION OF, RAY CARTER, A FORMER CITIES EMPLOYEE WHO
HAD ACTED AS AN INTERMEDIARY BETWEEN CITIES AND PETITIONER IN THEIR
DEALINGS.  PETITIONER FURTHER INDICATED A DESIRE TO DEPOSE VARIOUS
UNSPECIFIED OFFICIALS OF THE OTHER DEFENDANTS AFTER THE COMPLETION OF
THE DISCOVERY DETAILED IN HIS MOTION.  IMMEDIATELY THEREAFTER, IN
OCTOBER 1964, CITIES FOR THE THIRD TIME RENEWED ITS MOTION FOR SUMMARY
JUDGMENT /8/  AND ARGUMENT WAS HAD ON BOTH MOTIONS IN FEBRUARY 1965. 
JUDGE HERLANDS GRANTED CITIES' MOTION ON SEPTEMBER 8, 1965, HOLDING
THAT PETITIONER HAD FAILED TO FULFILL THE REQUIREMENT OF AMENDED RULE
56(E) THAT A PARTY OPPOSING A PROPERLY SUPPORTED SUMMARY JUDGMENT
MOTION MUST PRODUCE BY AFFIDAVIT OR OTHERWISE "SPECIFIC FACTS SHOWING
THAT THERE IS A GENUINE ISSUE FOR TRIAL."  /9/  AS TO PETITIONER'S
CROSS-MOTION FOR ADDITIONAL DISCOVERY UNDER RULE 56(F), THE COURT RULED
THAT PETITIONER'S TOTAL FAILURE BY THAT DATE TO PRODUCE ANY EVIDENCE
TENDING TO SHOW CITIES' PARTICIPATION IN A CONSPIRACY TO BOYCOTT HIM,
DESPITE CONSIDERABLE DISCOVERY, DEMONSTRATED THAT ADDITIONAL DISCOVERY
WOULD BE MERELY A FISHING EXPEDITION AND WOULD UNDULY HARASS
RESPONDENT.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT IN ALL PARTICULARS.  /10/ 

PETITIONER STATES THAT THREE QUESTIONS ARE PRESENTED BY THIS CASE:
FIRST, WHETHER HE WAS IMPROPERLY LIMITED IN THE DISCOVERY PERMITTED HIM
PRIOR TO THE RENDERING OF SUMMARY JUDGMENT (PARTS II, V, INFRA);
SECOND, WHETHER SUFFICIENT MATERIAL FACTS TO RAISE GENUINE ISSUES FOR
TRIAL WERE SHOWN (PART III, INFRA); AND THIRD, WHETHER THE LOWER COURTS
HELD, ERRONEOUSLY, THAT AMENDED RULE 56(E), FED. RULES CIV. PROC.,
PLACES THE BURDEN OF SHOWING THAT THERE IS A GENUINE ISSUE OF MATERIAL
FACT FOR TRIAL ON THE PARTY OPPOSING A MOTION FOR SUMMARY JUDGMENT
(PART IV, INFRA). 

        II. 

WE TURN FIRST TO ONE ASPECT OF PETITIONER'S CONTENTION THAT HIS
DISCOVERY WAS UNDULY RESTRICTED:  WHETHER CERTAIN ORDERS OF THE TRIAL
JUDGE IMPOSED UNFAIR LIMITS ON HIS ACCESS TO RELEVANT INFORMATION.  THE
SECOND ASPECT OF PETITIONER'S DISCOVERY ARGUMENT, ADDRESSED TO WHAT HE
VIEWED AS THE NECESSITY FOR ADDITIONAL DISCOVERY TO ENABLE HIM
ADEQUATELY TO OPPOSE THE SUMMARY JUDGMENT MOTION, WE SHALL DISCUSS IN
PART V OF THE OPINION. 

PETITIONER'S INITIAL COMPLAINT, AS SET OUT MORE FULLY, SUPRA, AT 259
261, SPECIFICALLY ALLEGED THAT CITIES HAD ADHERED TO THE CONSPIRACY BY
REFUSING TO DEAL WITH PETITIONER AFTER BEING BOUGHT OFF BY THE KUWAIT
CONTRACT AND AN OPPORTUNITY TO PARTICIPATE IN THE CONSORTIUM. 
SIMILIARLY, IN HIS DEPOSITION, WALDRON REITERATED HIS BELIEF THAT THE
ONLY LINKS BETWEEN CITIES AND THE CONSPIRACY WERE THOSE TWO PAYOFFS. 
THUS, BY PETITIONER'S OWN DOING, RESPONDENT CITIES SERVICE WAS FROM THE
BEGINNING OF THE LITIGATION PLACED IN A VASTLY DIFFERENT POSITION FROM
THE OTHER ALLEGED CO-CONSPIRATORS.  CITIES, REALIZING THIS, APPARENTLY
FELT THAT IF IT COULD SHOW THAT IT HAD IN FACT NOT RECEIVED ANY PAYOFF
OR BRIBE FROM THE OTHER DEFENDANTS, PETITIONER WOULD ABANDON HIS
CONTENTION THAT IT HAD JOINED THE ALLEGED CONSPIRACY.  ACCORDINGLY,
IMMEDIATELY AFTER IT HAD TAKEN WALDRON'S DEPOSITION, CITIES MADE ITS
MOTION FOR SUMMARY JUDGMENT ACCOMPANIED BY HILL'S AFFIDAVIT AND THE
SUPPORTING DOCUMENTS DESCRIBED, SUPRA, AT 263-264.  WHEN JUDGE HERLANDS
DECLINED TO GRANT CITIES' MOTION AT THAT TIME, HE PERMITTED PETITIONER
TO EXAMINE CITIES ABOUT THOSE SPECIFIC FACTS THAT HAD THERETOFORE BEEN
THE ONLY ONES ALLEGED AS EVIDENCE OF CONSPIRACY ON THE PART OF CITIES,
OTHER THAN ITS FAILURE TO MAKE A DEAL WITH PETITIONER FOR IRANIAN OIL. 
PETITIONER APPEARS TO ARGUE THAT IT WAS ERRONEOUS FOR THE TRIAL COURT
TO LIMIT HIS DISCOVERY INITIALLY TO HILL RATHER THAN JONES, THE PERSON
WITH WHOM HE PRIMARILY DEALT.  HOWEVER, SINCE PETITIONER WAS THE PARTY
WHO HAD INJECTED KUWAIT AND CONSORTIUM INTO THE CASE AND SINCE HILL HAD
BEEN THE RANKING CITIES OFFICIAL IN CHARGE OF BOTH TRANSACTIONS, IT IS
DIFFICULT TO CONCLUDE THAT THE TRIAL JUDGE ABUSED HIS DISCRETION IN
ORDERING PETITIONER TO BEGIN BY EXAMINING HILL. 

EVEN ASSUMING ARGUENDO THAT IT WAS ERROR FOR PETITIONER TO HAVE BEEN
REQUIRED TO BEGIN HIS DISCOVERY WITH HILL RATHER THAN JONES, THE ISSUE
IS MOOT FOR PURPOSES OF APPELLATE REVIEW BECAUSE JONES' ACCIDENTAL
DEATH OCCURRED PRIOR TO THE TIME PETITIONER WOULD HAVE BEEN ABLE TO
COMMENCE DEPOSING HIM HAD HE BEEN PERMITTED BY JUDGE HERLANDS TO DO SO.
THERE IS NO REASON TO BELIEVE THAT PETITIONER WOULD HAVE MADE ANY
GREATER EFFORTS TO SEE THAT THE EXAMINATION OF HIS ASSOCIATES. 
BENTLEY, ZOES, AND BROWN, WAS CARRIED OUT IN LESS THAN THE 13 MONTHS
THAT WERE ACTUALLY TAKEN HAD HE BEEN SCHEDULED TO DEPOSE JONES AT THE
END OF THAT TIME RATHER THAN HILL.  OBVIOUSLY IT WAS JONES' DEATH,
RATHER THAN ANY ACTION TAKEN BY JUDGE HERLANDS, THAT PREVENTED HIS
BEING DEPOSED AT SOME LATER DATE. 

ALTHOUGH PETITIONER HAD BEGUN TO DE-EMPHASIZE THE SIGNIFICANCE OF
KUWAIT AND THE CONSORTIUM TO HIS CLAIM OF CONSPIRACY BY CITIES AT THE
FIRST ARGUMENT ON CITIES' MOTION FOR SUMMARY JUDGMENT, IT WAS NOT UNTIL
AFTER THE ADDITIONAL INFORMATION DESCRIBED ABOVE WAS OBTAINED THROUGH
HILL'S DEPOSITION, AND THE SUPPORTING DOCUMENTS ACCOMPANYING IT, THAT
PETITIONER BEGAN TO STRESS THE CONTENTION THAT CITIES HAD UNDERGONE A
DRAMATIC SHIFT IN ITS ATTITUDE TOWARDS HIM IN SEPTEMBER 1952,
IMMEDIATELY AFTER JONES HAD RETURNED FROM A TRIP TO IRAN ARRANGED FOR
HIM BY WALDRON.  WHILE IT IS PROBABLY TO OVERSTATE THE CASE TO SAY, AS
DOES RESPONDENT, THAT PETITIONER ABANDONED HIS KUWAIT AND CONSORTIUM
CLAIMS AT THIS TIME, IT IS FAIR TO SAY THAT PETITIONER NO LONGER
SERIOUSLY CONTENDED THAT THE EVIDENCE RELATING TO THEM WAS SUFFICIENT
IN ITSELF TO RAISE A GENUINE ISSUE OF MATERIAL FACT. 

AFTER AGAIN DECLINING TO GRANT CITIES' MOTION FOR SUMMARY JUDGMENT,
JUDGE HERLANDS ENTERED AN ORDER PERMITTING FURTHER DISCOVERY OF
CITIES.  IT PROVIDED, AS DESCRIBED IN MORE DETAIL, SUPRA, AT 268-269,
FOR AN EXAMINATION OF THOSE CITIES EXECUTIVES STILL ALIVE WHO
PARTICIPATED IN THE NEGOTIATIONS BETWEEN PETITIONER, CITIES, AND THE
GOVERNMENT OF IRAN.  IT ALSO DIRECTED THE PRODUCTION OF ALL DOCUMENTS
IN CITIES' POSSESSION RELATING TO ANY CONTEMPLATED EALINGS IN IRANIAN
OIL DURING THE PERIOD OF WALDRON'S ACTIVE CONTACT WITH CITIES, I.E.,
BETWEEN JUNE 11, 1952, AND OCTOBER 1, 1952.  /11/ 

THIS ORDER HAD THE EFFECT OF PERMITTING WALDRON TO EXAMINE EVERY
SURVIVING CITIES OFFICIAL WITH WHOM HE HAD DEALT TO ANY SUBSTANTIAL
DEGREE IN HIS ATTEMPTS TO ARRANGE A SALE OF IRANIAN OIL.  HE WAS
PERMITTED TO EXAMINE THEM, AND HAVE PRODUCTION OF ALL DOCUMENTS IN
CONNECTION THEREWITH, CONCERNING ALL THE EVENTS THAT HE HAD SPECIFIED
IN HIS ORIGINAL COMPLAINT OR IN THE TWO PREVIOUS ORAL ARGUMENTS ON
CITIES' MOTION FOR SUMMARY JUDGMENT AS BEING EVIDENCE OF CITIES'
PARTICIPATION IN THE ALLEGED CONSPIRACY.  CERTAINLY THE SCOPE OF THIS
ORDER, VIEWED AS OF THE TIME IT WAS MADE, DOES NOT SEEM OPEN TO ANY
SERIOUS CHALLENGE AS UNDULY RESTRICTIVE, AND PETITIONER DID NOT MAKE
ANY SUCH ARGUMENT AT THE TIME THE ORDER WAS PROPOSED.  IT WAS ONLY WHEN
PETITIONER MOVED FOR ADDITIONAL DISCOVERY IN THE FALL OF 1964 THAT HE
BEGAN SERIOUSLY TO COMPLAIN ABOUT THE ALLEGEDLY LIMITED SCOPE OF THE
PRIOR DISCOVERY ORDER.  ACCORDINGLY, WE SHALL POSTPONE MORE DETAILED
DISCUSSION OF THIS POINT TO PART V, INFRA. 

PETITIONER DID ARGUE THEN, AND STILL CONTENDS NOW, THAT HE WAS
PREJUDICED BY THE FAILURE OF JUDGE HERLANDS TO LET HIM EXAMINE VARIOUS
OTHER CITIES EXECUTIVES, IN ADDITION TO JONES, AT THE TIME HE WAS
PERMITTED TO DEPOSE HILL.  HE BASES THIS CONTENTION ON THE GROUND THAT
MANY OF THESE EXECUTIVES WERE MEN OF ADVANCED YEARS AT THAT TIME AND
THAT THE DEATHS THAT IN FACT ENSUED /12/  COULD THUS HAVE BEEN
REASONABLY FORESEEN.  THE FALLACY IN THIS ARGUMENT IS THAT IT WAS ONLY
AFTER HILL TESTIFIED THAT PETITIONER CHANGED THE FOCUS OF HIS ARGUMENT
BEFORE THE TRIAL JUDGE TO MINIMIZE THE SIGNIFICANCE OF KUWAIT AND
CONSORTIUM AND TO SUGGEST OTHER POSSIBLE MOTIVATIONS FOR CITIES TO
CONSPIRE.  CERTAINLY JUDGE HERLANDS WAS NOT REQUIRED TO ANTICIPATE THAT
PETITIONER WOULD CHANGE THE ENTIRE FACTUAL EMPHASIS OF HIS CASE SO THAT
INDIVIDUALS WHO DID NOT AT THE TIME APPEAR TO BE PARTICULARLY VITAL TO
THE LITIGATION WOULD SUBSEQUENTLY BECOME SO.  MOREOVER, PETITIONER DID
NOT EVEN ASK TO DEPOSE ANY CITIES OFFICIAL WHO SUBSEQUENTLY DIED, OTHER
THAN JONES, AT THE TIME HE WAS PERMITTED TO EXAMINE HILL.  THEREFORE,
PETITIONER'S CLAIM OF PREJUDICIAL ERROR HERE MUST FAIL ALSO. 

      III. 

IN HIS AFFIDAVIT IN SUPPORT OF WALDRON'S MOTION FOR ADDITIONAL
DISCOVERY, PETITIONER'S ATTORNEY DETAILED THE FACTS PRODUCED TO DATE
THAT ASSERTEDLY SHOWED CITIES' PARTICIPATION IN THE CONSPRACY, IN ORDER
BOTH TO SUPPORT HIS CONTENTION THAT ADDITIONAL DISCOVERY WAS NEEDED AND
TO DEMONSTRATE THAT SUMMARY JUDGMENT IN FAVOR OF CITIES SHOULD NOT BE
GRANTED.  WE SHALL FIRST DISCUSS THE PROPRIETY OF JUDGE HERLANDS' AWARD
OF SUMMARY JUDGMENT BEFORE DEALING FURTHER (IN PART V) WITH
PETITIONER'S CONTENTIONS RELATING TO ADDITIONAL DISCOVERY. 

A. 

WHEN PETITIONER MOVED FOR ADDITIONAL DISCOVERY IN 1964 IN OPPOSITION
TO CITIES' STILL PENDING MOTION FOR SUMMARY JUDGMENT, HIS COUNSEL'S
AFFIDAVIT POINTED TO THE FOLLOWING EVIDENCE AS TENDING TO SHOW A
PARTICIPATION BY CITIES IN THE ALLEGED CONSPIRACY /13/  TO BOYCOTT HIS
ATTEMPTS TO RESELL THE IRANIANOIL TO WHICH HE ALLEGEDLY HAD ACCESS
UNDER HIS CONTRACT.  CITIES HAD A NEED TO IMPORT SUBSTANTIAL AMOUNTS OF
CRUDE OIL FOR ITS DOMESTIC OPERATIONS IN THE UNITED STATES, THIS NEED
AMOUNTING TO SOME 100,000 BARRELS PER DAY.  CITIES HAD THERETOFORE BEEN
UNABLE TO OBTAIN AN INDEPENDENT OIL SUPPLY IN THE MIDDLE EAST DESPITE
ITS LONG-EXISTING DESIRE TO DO SO.  THROUGH PETITIONER, CITIES HAD TWO
ASSERTEDLY ATTRACTIVE POSSIBILITIES OF FULFILLING ITS CRUDE OIL NEEDS. 
THE FIRST CONSISTED OF SHORT-TERM PURCHASES OF IRANIAN OIL AT PRICES
SUBSTANTIALLY BELOW THE GOING RATES FOR MIDEAST OIL VIA PETITIONER'S
CONTRACT WITH NIOC.  THE SECOND, IN WHICH CITIES WAS APPARENTLY MORE
INTERESTED AND ON WHICH TENTATIVE AGREEMENT WITH PETITIONER WAS
ALLEGEDLY REACHED, WAS FOR CITIES TO ENTER INTO A LONG-TERM ARRANGEMENT
TO TAKE OVER THE OPERATION OF THE ENTIRE IRANIAN OIL INDUSTRY (OR A
SUBSTANTIAL PORTION THEREOF) IN PLACE OF ANGLO-IRANIAN, AND TO
COMPENSATE WALDRON FOR WHAT WOULD AMOUNT TO A TRANSFER OF HIS CONTRACT
RIGHTS. 

THE EVIDENCE FURTHER SHOWED THAT CITIES WENT TO SUBSTANTIAL LENGTHS
TO EXPLORE THE POSSIBILITIES PRESENTED BY PETITIONER.  WALDRON, AT
JONES' REQUEST, SECURED AN INVITATION FOR JONES, TOGETHER WITH OTHER
CITIES EXECUTIVES, FROM PREMIER MOSSADEGH TO GO TO IRAN TO LOOK OVER
THE PRODUCTION FACILITIES THAT NIOC HAD APPROPRIATED FROM ANGLO
IRANIAN.  UPON EXAMINATION OF THE FACILITIES, THE CITIES EXECUTIVES
CONCLUDED THAT, NOTWITHSTANDING THE DEPARTURE OF THE BRITISH PERSONNEL
WHO HAD PREVIOUSLY BEEN IN CHARGE OF OPERATIONS, THE IRANIANS HAD
MANAGED TO KEEP THEM IN RELATIVELY GOOD OPERATING CONDITION.  THIS
CONCLUSION WAS ORALLY PRESENTED TO MOSSADEGH BY JONES AND A
COMPREHENSIVE WRITTEN REPORT ON SPECIFIC DETAILS WAS PROMISED TO BE
TRANSMITTED LATER.  DURING HIS STAY IN IRAN, JONES ALSO MADE A SIDE
TRIP TO KUWAIT TO VISIT THE KUWAIT OIL COMPANY, OWNED JOINTLY BY ANGLO
IRANIAN AND GULF.  ON THE RETURN OF THE CITIES PARTY TO THE UNITED
STATES, WATSON /14/  INFORMED PETITIONER IN OCTOBER 1952 THAT CITIES
DID NOT PROPOSE TO TAKE ANY STEPS RELATIVE TO OBTAINING IRANIAN OIL,
ALTHOUGH ANOTHER CITIES EXECUTIVE SUBSEQUENTLY INDICATED TO HIM THAT
CITIES HAD NOT ENTIRELY ABANDONED ITS INTEREST IN HIS PROPOSALS. 
HOWEVER, CITIES HAD NO FURTHER SIGNIFICANT DEALINGS WITH WALDRON
THEREAFTER.  MEANWHILE ON SEPTEMBER 21, 1952, CARTER, ACTING ON
PETITIONER'S BEHALF, HAD SENT A TELEGRAM TO SECRETARY OF THE INTERIOR
CHAPMAN OFFERING TO SELL A CARGO OF IRANIAN-PRODUCED AVIATION GASOLINE
TO THE UNITED STATES AIR FORCE.  CARTER STATED THAT JONES HAD SAID THAT
HE WOULD USE HIS GOOD OFFICES TO GET THE UNITED STATES TO PURCHASE THE
GASOLINE.  INSTEAD, JONES CABLED WATSON INSTRUCTIONS TO TELL CHAPMAN
THAT HE WAS DISASSOCIATING HIMSELF FROM CARTER'S EFFORTS AND THAT HE
QUESTIONED THE WISDOM OF CARTER'S PROPOSAL.  THIS WATSON DID. 

SUBSEQUENTLY, IN JANUARY 1953, JONES WROTE TO THE INCOMING SECRETARY
OF STATE AND ATTORNEY GENERAL INFORMING THEM OF HIS BELIEF THAT THE
ONLY SOLUTION TO THE IRANIAN OIL PROBLEM WOULD BE SOME SORT OF
AGREEMENT BETWEEN IRAN AND ANGLO-IRANIAN.  HE ACCOMPANIED THIS MISSIVE
WITH A LEGAL MEMORANDUM WHICH STATED THAT UNDER INTERNATIONAL LAW IRAN
APPEARED TO HAVE THE RIGHT TO NATIONALIZE THE ANGLO-IRANIAN OIL
PROPERTIES, BUT HE ASSERTED THAT THE MEMORANDUM HAD NOT BEEN PREPARED
AS A STEP TOWARD CITIES' INVOLVING ITSELF IN THE IRANIAN SITUATION. 
THREE WEEKS LATER THE FINAL CONTRACT WITH GULF FOR A 15-YEAR SUPPLY OF
21,000 BARRELS PER DAY OF KUWAIT OIL, PLUA AN OPTION FOR AN ADDITIONAL
30,000 BARRELS PER DAY, WAS SIGNED BY CITIES AND GULF. 

MEANSHILE WALDRON CONTINUED HIS UNSUCCESSFUL EFFORTS TO SELL IRANIAN
OIL TO VARIOUS AMERICAN COMPANIES.  IN PARTICULAR, IN JUNE 1953, HE
ENTERED INTO EXTENSIVE NEGOTIATIONS WITH THE RICHFIELD OIL COMPANY, IN
WHICH CITIES HAD ABOUT A ONE-THIRD INTEREST.  ALTHOUGH GREAT INTEREST
WAS SHOWN INITIALLY BY RICHFIELD, PETITIONER WAS TOLD IN SEPTEMBER THAT
IT HAD DECIDED NOT TO PURCHASE IRANIAN OIL AFTER ALL.  THEN, IN 1954
THE CONSORTIUM WAS SET UP TO TAKE BACK ANGLO-IRANIAN'S PROPERTIES AND
CONCESSION FROM NIOC, AND RICHFIELD OBTAINED A SHARE OF ABOUT 1 1/2%
THEREIN.  /15/ 

PETITIONER ARGUES THAT THE INFERENCE THAT CITIES WAS A PARTICIPANT
IN THE ALLEGED CONSPIRACY TO BOYCOTT HIM FOLLOWS FROM THE FOREGOING
FACTS.  EVEN VIEWED WITHOUT REFERENCE TO OTHER FACTS OF RECORD, IT IS
APPARENT THAT PETITIONER'S MAIN ARGUMENT IS THAT CITIES' FAILURE TO
FOLLOW THROUGH ON ITS ORIGINAL SUBSTANTIAL INTEREST IN DEALING WITH HIM
IS SUBSTANTIAL EVIDENCE OF PARTICIPATION IN THE BOYCOTT ALLEGEDLY
ORGANIZED BY THE OTHER DEFENDANTS.  AND UNDOUBTEDLY, GIVEN NO CONTRARY
EVIDENCE, A JURY QUESTION MIGHT WELL BE PRESENTED AS TO CITIES' MOTIVES
IN NOT DEALING WITH WALDRON, CF. POLLER V. COLUMBIA BROADCASTING
SYSTEM, INC., 368 U;S. 464 (1962), NOTWITHSTANDING THAT SUCH A FAILURE
TO DEAL CONCEIVABLY MIGHT ALSO HAVE RESULTED FROM A WHOLE VARIETY OF
NON-CONSPIRATORIAL MOTIVES INVOLVING THE EXERCISE OF BUSINESS JUDGMENT
AS TO THE ATTRACTIVENESS OF THE OPPORTUNITY OFFERED BY PETITIONER. 
HOWEVER, AS WE NEXT SHOW, THE RECORD IN THIS CASE CONTAINS AN
OVERWHELMING AMOUNG OF SUCH CONTRARY EVIDENCE OF CITIES' MOTIVES, MUCH
OF IT SUPPLIED BY PETITIONER HIMSELF. 

        B. 

IMMEDIATELY AFTER THE NATIONALIZATION, ANGLO-IRANIAN PUBLICLY
ANNOUNCED BOTH IN THE NEWS MEDIA AND THROUGHOUT THE OIL INDUSTRY ITS
VIEW THAT THE NATIONALIZATION OF ITS PROPERTIES AND THE ABROGATION OF
ITS CONCESSION RIGHTS AMOUNTED TO AN ILLEGAL ACT UNDER INTERNATIONAL
LAW AND STATED ITS INTENTION TO "TAKE ALL SUCH ACTION AS MAY BE
NECESSARY TO PROTECT ITS RIGHTS IN ANY COUNTRY," INCLUDING THE BRINGING
OF LAWSUITS AGAINST ANY PURCHASER OF IRANIAN OIL.  IN ADDITION, THE
EVIDENCE INTRODUCED BY PETITIONER TENDED TO SHOW THAT THE OTHER MAJOR
OIL COMPANY DEFENDANTS IN THIS SUIT, AS A RESULT OF THEIR FEAR THAT
COUNTRIES IN WHICH THEY HELD CONCESSIONS WOULD FOLLOW THE IRANIAN LEAD
SHOULD THE NATIONALIZATION OF ANGLO-IRANIAN'S PROPERTY BE SUCCESSFUL,
ALSO COMMUNICATED TO CITIES AND OTHER DOMESTIC OIL COMPANIES THEIR
INTENTION TO SUPPORT ANGLO-IRANIAN BY REFUSING TO DEAL WITH ANY COMPANY
THAT HANDLED IRANIAN OIL.  THAT SUCH THREATS WERE BOTH SUBSTANTIAL AND
EFFECTIVE IS DEMONSTRATED BY THE TESTIMONY OF PETITIONER THAT NUMEROUS
AMERICAN OIL COMPANIES, NOT MADE PARTIES DEFENDANT IN THIS ACTION,
REFUSED TO DEAL WITH HIM FOR PRECISELY THE REASON THAT THEY WERE AFRAID
OF RETALIATION.  IN ADDITION, PETITIONER TESTIFIED THAT THE OTHER
DEFENDANTS HAD THREATENED TO BOYCOTT ANY COMPANIES THAT LEASED TANKERS
FOR USE IN TRANSPORTING IRANIAN OIL. 

IT IS THUS CLEAR THAT THE EVIDENCE FURNISHED BY PETITIONER HIMSELF
PROVIDES A MUCH MORE COMPELLING EXPLANATION FOR CITIES' FAILURE TO
PURCHASE IRANIAN IOL THAN DOES HIS ARGUMENT THAT SUCH FAILURE IS
EVIDENCE OF CONSPIRATORIAL BEHAVIOR BY CITIES.  WHEN THIS EXPLANATION
IS PLACED IN JUXTAPOSITION WITH THE EVIDENCE INTRODUCED BY CITIES
SHOWING THAT THE KUWAIT DEAL WAS ARRANGED LONG BEFORE THE
NATIONALIZATION, THAT CITIES OBJECTED CONTINUALLY TO THE FORMATION OF
THE CONSORTIUM, AND THAT CITIES REFUSED THE MINIMAL SHARE OFFERED IT AS
A PROSPECTIVE PARTICIPANT THEREIN AFTER THE FAILURE OF ITS EFFORTS TO
BLOCK THE FORMATION OF THE CONSORTIUM, THE SUGGESTION THAT CITIES WAS
IN SOME MANNER BOUGHT OFF BECOMES INSUPPORTABLE.  PETITIONER ATTEMPTS
TO ESCAPE THE FORCE OF THIS SHOWING BY ARGUING THAT HE IS OBLIGATED NOT
TO DEMONSTRATE WHY CITIES CONSPIRED BUT ONLY TO SHOW THAT CITIES IN
FACT CONSPIRED.  HOWEVER, THIS CONTENTION, THOUGH UNDOUBTEDLY TRUE IN
THE ABSTRACT, HAS LITTLE RELEVANCE TO WALDRON'S THEORY OF HOW HE HAS
INTRODUCED EVIDENCE THAT CITIES IN FACT CONSPIRED. 

PETITIONER HIMSELF CONSISTENTLY ARGUES THAT CITIES' INTERESTS IN
THIS ENTIRE SITUATION WERE DIRECTLY OPPOSED TO THOSE OF THE OTHER
DEFENDANTS.  THE OTHERS HAD LARGE SUPPLIES OF FOREIGN OIL; CITIES DID
NOT.  THE OTHERS ALLEGEDLY WERE MEMBERS OF AN INTERNATIONAL CARTEL TO
CONTROL FOREIGN OIL; CITIES WAS NOT.  THE OTHERS WERE INTERESTED IN RE
ESTABLISHING THE STATUS QUO PRIOR TO NATIONALIZATION; CITIES WAS NOT. 
IT IS DOUBTLESS DUE TO THE DIFFICULTY OF SUGGESTING A MOTIVE FOR CITIES
TO CONSPIRE AGAINST HIM, COUPLED WITH CITIES' DEMONSTRATED INTEREST IN
HIS PROPOSALS FOR SEVERAL MONTHS (TO THE EXTENT THAT CITIES EVEN PAID
WALDRON SEVERAL THOUSAND DOLLARS TO REIMBURSE HIM FOR HIS TIME AND
EXPENSES INCURRED IN ARRANGING JONES' TRIP TO IRAN), THAT PROMPTS
PETITIONER, UNDERSTANDABLY ENOUGH, TO INSIST THAT MOTIVE IS NOT
CONTROLLING IN HIS CASE.  HOWEVER, TO SUGGEST, AS PETITIONER DOES, THAT
CITIES' PARTICIPATION IN THE CONSPIRACY IS SHOWN BY ITS FAILURE TO DEAL
WITH HIM IS ITSELF TO RELY ON MOTIVE. 

OBVIOUSLY IT WOULD NOT HAVE BEEN EVIDENCE OF CONSPIRACY IF CITIES
REFUSED TO DEAL WITH WALDRON BECAUSE THE PRICE AT WHICH HE PROPOSED TO
SELL OIL WAS IN EXCESS OF THAT AT WHICH OIL COULD BE OBTAINED FROM
OTHERS.  THEREFORE, IT IS ONLY THE ATTRACTIVENESS OF PETITIONER'S OFFER
THAT MAKES FAILURE TO TAKE IT UP SUGGESTIVE OF IMPROPER MOTIVES. 
HOWEVER, IT HAS BEEN DEMONSTRATED ABOVE THAT FOR CITIES TO ENTER INTO
ANY DEAL WITH WALDRON FOR IRANIAN OIL WOULD HAVE INVOLVED IT IN A
VARIETY OF UNPLEASANT CONSEQUENCES SUFFICIENT TO DETER IT FROM MAKING
ANY SUCH DEAL.  /16/  THEREFORE, NOT ONLY IS THE INFERENCE THAT CITIES'
FAILURE TO DEAL WAS THE PRODUCT OF FACTORS OTHER THAN CONSPIRACY AT
LEAST EQUAL TO THE INFERENCE THAT IT WAS DUE TO CONSPIRACY, THUS
NEGATING THE PROBATIVE FORCE OF THE EVIDENCE SHOWING SUCH A FAILURE,
BUT THE FORMER INFERENCE IS MORE PROBABLE. 

PETITIONER DOES ATTEMPT TO POINT TO OTHER EVIDENCE BESIDES THE
SIMPLE FAILURE TO DEAL AS SHOWING CONSPIRACY.  /17/  HE PLACES
CONSIDERABLE RELIANCE ON THE REPORT PREPARED FOR TRANSMISSION TO
MOSSADEGH IN OCTOBER 1952, IMMEDIATELY AFTER JONES' RETURN FROM IRAN
AND WATSON'S ANNOUNCEMENT TO WALDRON THAT CITIES WAS NO LONGER
INTERESTED IN IRANIAN OIL.  HE STRESSES TWO ASPECTS OF THE REPORT AS
EVIDENCING CITIES'  PARTICIPATION IN THE BOYCOTT:  FIRST, THE STATEMENT
THAT IT WAS NECESSARY FOR IRAN TO COME TO SOME SORT OF AGREEMENT WITH
THE BRITISH (ANGLO-IRANIAN WAS OWNED 51% BY THE BRITISH GOVERNMENT)
ABOUT COMPENSATION FOR THE CONCESSION RIGHTS AND EXPROPRIATED PROPERTY,
AND SECOND, THE SUGGESTION THAT THERE EXISTED THE POSSIBILITY THAT AN
AMERICAN COMPANY (PRESUMABLY CITIES) WOULD IMPORT SOME IRANIAN OIL
PURCHASED DIRECTLY FROM NIOC.  IT IS INTERESTING TO NOTE THAT
PETITIONER ATTEMPTS TO USE THIS MEMORANDUM IN TWO OPPOSING WAYS.  HE
SUGGESTS, ON THE ONE HAND, THAT THE REFERENCE TO THE NECESSITY FOR
BRITISH COOPERATION IF THE IRANIAN OIL INDUSTRY WERE TO BE REACTIVATED
IS EVIDENCE OF CITIES' ADHERENCE TO THE SCHEME INITIATED BY ANGLO
IRANIAN TO FORCE IRAN TO RETURN THE PROPERTIES, AND, ON THE OTHER, THAT
THE STATEMENT THAT IT WOULD BE POSSIBLE FOR IRAN TO SELL SUBSTANTIAL
AMOUNTS OF OIL WITHOUT SUCH AN AGREEMENT IS EVIDENCE OF CITIES'
CONTINUED INTEREST IN IRANIAN OIL.  IT IS DIFFICULT TO SEE HOW THE
LATTER CONTENTION SUPPORTS AN INFERENCE OF CONSPIRACY.  PETITIONER ALSO
IGNORES THE FACT THAT THE LATTER ALTERNATIVE WAS CHARACTERIZED BY JONES
IN THE REPORT AS LESS DESIRABLE INSOFAR AS IRAN'S LONG-TERM INTERESTS
WERE CONCERNED, AND THAT, WITH REGARD TO CITIES' PARTICIPATION IN SUCH
AN ARRANGEMENT, JONES ALSO STATED THAT "(DEVELOPMENT OF SOME METHOD,
POSSIBLY THROUGH AGREEMENT BETWEEN UNITED STATES AND BRITISH
GOVERNMENTS, (WOULD HAVE TO BE MADE) THAT WOULD ALLOW IRANIAN CRUDE TO
MOVE TO U.S. MARKETS WITHOUT TIE-UPS, LAW SUITS AND OTHER SIMILAR
HARASSMENTS TO THE PURCHASERS OF THE CRUDE." 

PETITIONER ALSO EMPHASIZES THE STATEMENT SENT BY JONES TO THE
INCOMING SECRETARY OF STATE AND ATTORNEY GENERAL THAT THE ONLY SOLUTION
FOR IRAN LAY IN SOME SORT OF ACCOMMODATION WITH THE BRITISH.  SINCE
THIS WAS ALSO THE POSITION TAKEN, IN EFFECT, BY THE OTHER ALLEGED
CONSPIRATORS, PETITIONER SUGGESTS THAT IT TOO SHOWS COMMON PURPOSE. 
HOWEVER, ONCE JONES HAD DECIDED THAT CITIES COULD NOT RISK TRYING TO
BREAK THE BOYCOTT ITSELF, IT WAS MERELY A FACTUAL OBSERVATION TO STATE
THAT IRAN WOULD NOT BE ABLE TO RESTORE THE OPERATION OF ITS OIL
INDUSTRY WITHOUT SOME KIND OF AGREEMENT BEING MADE WITH THE
BOYCOTTERS.  THE USE OF THE PHRASEOLOGY THT THIS WAS THE ONLY
"HONORABLE COURSE"  HARDLY CHANGES THE FACTUAL BACKGROUND OF THE
LETTER.     IN ADDITION, THE STATEMENT IS SUBSTANTIALLY SIMILAR TO THAT
MADE IN THE REPORT INTENDED TO BE SENT TO PREMIER MOSSADEGH ON WHICH
PETITIONER RELIES TO SHOW CITIES' CONTINUED INTEREST IN IRANIAN OIL;
PETITIONER HIMSELF NOTES THAT THE AGREEMENT CONTEMPLATED IN THE REPORT
BETWEEN IRAN AND ANGLO-IRANIAN WOULD INVOLVE AN AMERICAN COMPANY
(HOPEFULLY CITIES) TAKING OVER THE OPERATION OF THE OIL INDUSTRY, WHILE
ANGLO-IRANIAN WOULD BE COMPENSATED FOR ITS PROPERTY.  SINCE ANGLO
IRANIAN WAS INSISTING THAT ITS PROPERTY AND CONCESSION RIGHTS BE
RETURNED TO IT OUTRIGHT, AND WAS REJECTING PROPOSALS TO SUBSTITUTE THE
PAYMENT OF COMPENSATION THEREFOR, THIS PROPOSAL BY JONES IS NOT
REASONABLY SUSCEPTIBLE OF THE INTERPRETATION SOUGHT TO BE PLACED ON IT
BY PETITIONER. 

MOREOVER, THE LETTER WAS ACCOMPANIED BY A LEGAL MEMORANDUM, STATING
THAT IRAN HAD A RIGHT UNDER INTERNATIONAL LAW TO NATIONALIZE ITS OIL
INDUSTRY, THAT RAN DIRECTLY COUNTER TO THE CONSISTENT POSITION TAKEN BY
THE OTHER DEFENDANTS IN THIS CASE.  INDEED, IT WENT TO THE HEART OF
THEIR DEFENSE, SINCE ONE OF THE ARGUMENTS BEING MADE BELOW IS THAT THE
OTHER DEFENDANTS WERE MERELY ACTING TO PROTECT THEIR PROPERTY RIGHTS. 
SEE 231 F.SUPP.,AT 87. 

PETITIONER ARGUES THAT THE FAILURE OF THE RICHFIELD OIL CO. TO DEAL
WITH HIM IS EVIDENCE OF CONSPIRACY BY CITIES BECAUSE CITIES WAS A
MAJOR, ALTHOUGH NOT A CONTROLLING, STOCKHOLDER IN RICHFIELD.  HOWEVER,
ASIDE FROM CITIES' STOCK INTEREST IN RICHFIELD, PETITIONER HAS PRODUCED
NO EVIDENCE OTHER THAN SPECULATION TO CONNECT THIS FAILURE WITH ANY
ACTION BY CITIES.  AS FOR THE PROBATIVE VALUE OF THE FAILURE TO DEAL
WITH WALDRON, THE SAME OBJECTION IS APPLICABLE TO THE PROPOSED
TRANSACTION WITH RICHFIELD THAT HAS BEEN DISCUSSED IN CONNECTION WITH
THE PROPOSED DEAL WITH CITIES, NAMELY, THE PROBABILITY THAT IT WAS DUE
TO A DESIRE TO AVOID DIFFICULTIES THAT WOULD BE PRESENTED BY ANGLO
IRANIAN AND THE OTHER DEFENDANTS; MOREOVER, SINCE PETITIONER'S CONTRACT
HAD EXPIRED BY THE TIME THE DEAL FELL THROUGH, IT IS ALSO POSSIBLE THAT
NO AGREEMENT WAS REACHED BECAUSE WALDRON NO LONGER HAD ANYTHING TO
OFFER.  THEREFORE, THE FAILURE OF PETITIONER TO SELL OIL TO RICHFIELD
ADDS NOTHING TO HIS CASE AGANIST CITIES. 

FINALLY, PETITIONER PLACES GREAT RELIANCE ON JONES' ALLEGED
INTERFERENCE IN HIS EFFORTS TO SELL THE UNITED STATES GOVERNMENT A
CARGO OF GASOLINE FOR MILITARY USE.  ONE DIFFICULTY WITH THIS
CONTENTION IS THAT THE INCIDENT OCCURRED AT A TIME WHEN, PETITIONER
CONCEDED IN THE TRIAL COURT, CITIES WAS NOT YET A MEMBER OF THE
CONSPIRACY.  A MORE BASIC OBJECTION TO IT, HOWEVER, IS THAT IT IS
APPARENT THAT JONES, IN HIS CABLE TO THE SECRETARY OF THE INTERIOR, WAS
PRIMARILY CONCERNED WITH DISASSOCIATING HIMSELF FROM CARTER'S EFFORTS
TO PROMOTE THE SALE, EFFORTS WHICH CARTER INTENDED TO TELL THE
SECRETARY WERE SUPPORTED BY JONES.  UNDER THOSE CIRCUMSTANCES, WHAT
PETITIONER CHARACTERIZES AS VINDICTIVE INTERFERENCE BY JONES APPEARS
FAR MORE LIKELY TO HAVE BEEN A DESIRE NOT TO BE USED IN SOMEONE ELSE'S
FINANCIAL DEALINGS.  IN ANY EVENT, IT IS INSUFFICIENT SUPPORT, IN LIGHT
OF ALL THE OTHER EVIDENCE, ON WHICH TO BASE A CASE FOR PARTICIPATION BY
CITIES IN THE CONSPIRACY. 

        C. 

IN SUPPORT OF HIS CONTENTION THAT SUMMARY JUDGMENT AGAINST HIM WAS
IMPROPER, PETITIONER RELIES HEAVILY UPON POLLER V. COLUMBIA
BROADCASTING SYSTEM, INC., 368 U.S. 464 (1962).  IN POLLER THE
PLAINTIFF CLAIMED THAT CBS CANCELED ITS AFFILIATION AGREEMENT WITH HIS
UHF STATION PURSUANT TO A CONSPIRACY BETWEEN CBS AND SOME THIRD PARTIES
TO DRIVE HIM OUT OF BUSINESS IN ORDER TO GIVE CBS A SHORT-TERM MONOPOLY
OF THE UHF MARKET IN THE MILWAUKEE AREA, AND ULTIMATELY TO ELIMINATE
UHF COMPETITION THERE ENTIRELY.  THE PLAINTIFF INTRODUCED EVIDENCE
SHOWING THAT CBS HAD CANCELED HIS AFFILIATION, THT IT PURCHASED AND
AFFILIATED WITH ANOTHER UHF STATION IN COMPETITION WITH HIM, THAT HE
WAS DRIVEN OUT OF BUSINESS AS A RESULT OF THE COMPETITION WITH THE
OTHER STATION, AND THAT SUBSEQUENTLY CBS TERMINATED THE OPERATION OF
ITS STATION, THEREBY LEAVING THE MILWAUKEE MARKET WITHOUT ANY UHF
SERVICE AT ALL; CBS IN TURN RELIED ON EVIDENCE CONSISTING LARGELY OF
AFFIDAVITS FROM, AND DEPOSITIONS OF, VARIOUS OF ITS EXECUTIVES
ASSERTING THAT THE ACTIONS TAKEN BY IT WERE THE RESULT NOT OF
CONSPIRACY BUT OF ITS LEGITIMATE BUSINESS DECISION TO ENTER INTO
COMPETITION IN THE UHF MARKET IN THE MILWAUKEE AREA.  THE BASIC ISSUE
BETWEEN THE PARTIS, THEREFORE, CONCERNED THE MOTIVES OF CBS IN
CANCELING ITS AFFILIATION WITH THE PLAINTIFF POLLER.  THIS COURT HELD
THT WHERE THERE WAS SUBSTANTIAL FACTUAL EVIDENCE TENDING TO SHOW THE
EXISTENCE OF A CONSPIRACY TO ELIMINATE A COMPETITOR AND WHERE THE
CRUCIAL QUESTION WAS MOTIVE, SUMMARY JUDGMENT WAS PREMATURELY GRANTED
AGAINST THE PLAINTIFF, NOTWITHSTANDING THE FACT THAT THERE WAS ALSO
SUBSTANTIAL EVIDENCE TENDING TO SHOW THE NONEXISTENCE OF CONSPIRATORIAL
BEHAVIOR, 

AT FIRST GLANCE THE PRESENT CASE SEEMS TO PRESENT SUBSTANTIAL
SIMILARITIES TO THE SITUATION IN POLLER IN THAT THE ISSUE AS TO CITIES'
MOTIVE IN FAILING TO CONCLUDE A DEAL WITH PETITIONER IS LIKEWISE BASIC
TO THE LITIGATION HERE.  HOWEVER, THERE ARE CRUCIAL DIFFERENCES BETWEEN
THE TWO CASES.  IN POLLER THE COMPETITIVE RELATIONSHIP BETWEEN CBS AND
THE PLAINTIFF WAS SUCH THT IT WAS PLAUSIBLE FOR THE PLAINTIFF TO ARGUE
THAT CBS HAD EMBARKED ON A PLAN TO DRIVE HIM OUT OF BUSINESS.  IN THIS
CASE, AS WALDRON HAS ADMITTED RIGHT ALONG, THE BUSINESS RELATIONSHIP
BETWEEN HIM, CITIES, AND THE OTHER DEFENDANTS WAS SUCH THAT IT IS MUCH
MORE PLAUSIBLE TO BELIEVE THAT CITIES' INTERESTS COINCIDED, RATHER THAN
CONFLICTED, WITH THOSE OF PETITIONER.  AND, IN FACT, THE COURSE OF
DEALINGS BETWEEN PETITIONER AND CITIES OVER THE STRENUOUS OBJECTION OF
THE OTHER DEFENDANTS GIVES AMPLE EVIDENCE OF PRECISELY THIS SIMILARITY
OF INTEREST.  AS WALDRON HIMSELF CANDIDLY STATED IN THE COURSE OF HIS
DEPOSITION, HE WOULD NOT HAVE ORIGINALLY CONCLUDED CITIES AS A CO
CONSPIRATOR HAD HE NOT CONVEIVED THE IDEA THAT THE ULTIMATE FAILURE OF
CITIES TO DEAL WITH HIM WAS THE RESULT OF SOME SORT OF PAYOFF.  YET AS
DESCRIBED, SUPRA, AT 263-264, 267, CITISES HAS INTRODUCED OVERWHELMING
EVIDENCE THAT NO SUCH PAYOFF WAS EVER MADE OR PROMISED TO IT IN RETURN
FOR AN AGREEMENT NOT TO DEAL WITH WALDRON, A SHOWING WHICH PETITIONER
HAS IN NO WAY REBUTTED.  PETITIONER IS THUS FORCED TO TAKE THE POSITION
THAT THE ONE FACT THAT HE HAS PRODUCED, CITIES' FAILURE TO MAKE A DEAL
WITH HIM FOR IRANIAN OIL, IS SUFFICIENTLY PROBATIVE OF CONSPIRACY TO
ENTITLE HIM TO RESIST SUMMARY JUDGMENT. 

IN SUPPORT OF THIS POSITION, PETITIONER RELIES HEAVILY ON INTERSTATE
CIRCUIT, INC. V. UNITED STATES, 306 U.S. 208 (1939), AND THEATRE
ENTERPRISES, INC. V. PARAMOUNT FILM DISTRIBUTING CORP., 346 U.S. 537
(1954).  IN INTERSTATE CIRCUIT A GROUP OF MOTION PICTURE DISTRIBUTORS,
AT THE REQUEST OF TWO LARGE FIRST-RUN EXHIBITORS, SIMULTANEOUSLY
IMPOSED IDENTICAL RESTRICTIONS ON SUBSEQUENT SHOWINGS OF THE FILMS THEY
DISTRIBUTED; THESE RESTRICTIONS HAD THE EFFECT OF FORCING SUBSEQUENT
RUN EXHIGITORS TO RAISE THEIR ADMISSION PRICES SUBSTANTIALLY IN THE
DIRECTION OF THE PRICES THEN CHARGED BY THE COMPETING FIRST-RUN
EXHIBITORS AT WHOSE BEHEST THE RESTRICTIONS WERE IMPOSED.  THIS IN TURN
TENDED TO RESTRAIN COMPETITION AMONG THE EXHIBITORS BY DEPRIVING THE
SUBSEQUENT-RUN EXHIBITORS OF MUCH OF THEIR ABILITY TO COMPENSATE FOR
THEIR COMPETITIVE DISADVANTAGES BY SELLING TICKETS AT A CONSIDERABLY
LOWER PRICE THAN THAT CHARGED BY THE FIRST-RUN EXHIBITORS.  OTHER
RESTRICTSION PROHIBITING THE SHOWING OF DOUBLE-FEATURES IN SUBSEQUENT
RUN THEATRES WERE IMPOSED WITH SIMILAR ANTICOMPETITIVE EFFECTS.  THERE
WAS NO DIRECT EVIDENCE SHOWING THAT THE DISTRIBUTORS AGREED WITH ONE
ANOTHER TO IMPOSE THE IDENTICAL RESTRICTIONS, BUT IT WAS SHOWN THAT
EACH DISTRIBUTOR KNEW THAT ALL THE OTHER DISTRIBUTORS HAD BEEN
APPROACHED WITH THE SAME PROPOSAL AND THAT THE IMPOSITION OF THE
RESTRICTIONS WOULD BE FEASIBLE ONLY IF ADHERED TO BY ALL DISTRIBUTORS. 
FINALLY, IT WAS SHOWN THAT THE IDENTICAL ACTION TAKEN HAD THE EFFECT OF
CREATING A LIKELIHOOD OF INCREASED PROFITS FOR EACH DISTRIBUTOR.  THIS
COURT HELD THAT ON THE FOREGOING FACTS A TACIT AGREEMENT TO RESTRAIN
COMPETITION BETWEEN THE DISTRIBUTORS COULD PROPERLY BE INFERRED. 

INTERSTATE CIRCUIT DIFFERS FROM THE CASE AT HAND IN PRECISELY THE
SAME WAY THAT POLLER DOES, NAMELY, IN THE INFERENCES OF MOTIVE THAT CAN
REASONABLY BE DRAWN FROM THE FACTS.  THE REASON THAT THE ABSENCE OF
DIRECT EVIDENCE OF AGREEMENT IN INTERSTATE CIRCUIT WAS NOT FATAL IS
THAT THE DISTRIBUTORS ALL HAD THE SAME MOTIVE TO ENTER INTO A TACIT
AGREEMENT.  ADHERENCE TO SUCH AN AGREEMENT WOULD ENABLE THEM TO
INCREASE THEIR ROYALTIES BY FORCING A RISE IN ADMISSION PRICES WITHOUT
THE DANGER OF COMPETITORS ENLARGING THEIR SHARE OF THE SUBSEQUENT-RUN
MARKET BY REFUSING TO IMPOSE SIMILAR RESTRICTIONS.  THAT SUCH A STEP
WOULD ALSO AID THE FIRST-RUN EXHIBITORS PROPOSING IT TO RESTRAIN
COMPETITION BETWEEN THEMSELVES AND SUBSEQUENT-RUN EXHIBITORS WOULD NOT
SIGNIFICANTLY DIMINISH THE ANTI-COMPETITIVE BENEFITS TO BE OBTAINED BY
THE DISTRIBUTORS.  HERE WALDRON IS UNABLE TO POINT TO ANY BENEFITS TO
BE OBTAINED BY CITIES FROM REFUSING TO DEAL WITH HIM AND, THEREFORE,
THE INFERENCE OF CONSPIRACY SOUGHT TO BE DRAWN FROM CITIES'"PARALLEL
REFUSAL TO DEAL"  /18/  DOES NOT LOGICALLY FOLLOW. 

THEATRE ENTERPRISES, ALSO RELIED ON BY PETITIONER, MERELY REITERATED
THE HOLDING OF INTERSTATE CIRCUIT THAT "BUSINESS BEHAVIOR IS ADMISSIBLE
CIRCUMSTANTIAL EVIDENCE FROM WHICH THE FACT FINDER MAY INFER
AGREEMENT," 346 U.S.,AT 540, IN THE COURSE OF RULING THAT THE PARALLEL
BEHAVIOR THERE SHOWN DID RAISE A CONSPIRACY ISSUE FOR THE JURY, WHICH
PERMISSIBLY RESOLVED IT IN THE DEFENDANTS' FAVOR ON THE BASIS OF THE
OTHER CONTRARY EVIDENCE IN THE CASE.  IT DID NOT PURPORT TO DEAL WITH A
SITUATION WHERE THE INTERESTS OF THE PARTIES WHOSE BEHAVIOR WAS
"CONSCIOUSLY PARALLEL" WERE SUBSTANTIALLY DIVERGENT AND THUS IS
INAPPLICABLE HERE.  THUS NEITHER PRECEDENT NOR LOGIC SUPPORTS
PETITIONER'S CONTENTION THAT THE EVIDENCE TO WHICH HE POINTS IS
SIGNIFICANTLY PROBATIVE OF CONSPIRACY AND, THEREFORE, WE HOLD THAT ON
THE FACTS AS SHOWN SUMMARY JUDGMENT WAS CORRECTLY AWARDED TO
RESPONDENT. 

     IV. 

RULE 56(E) OF THE FEDERAL RULES OF CIVIL PROCEDURE STATES THAT
"(WHEN A MOTION FOR SUMMARY JUDGMENT IS MADE AND SUPPORTED . . . AN
ADVERSE PARTY MAY NOT REST UPON THE MERE ALLEGATIONS OR DENIALS OF HIS
PLEADING, BUT HIS RESPONSE . . . MUST SET FORTH SPECIFIC FACTS SHOWING
THAT THERE IS A GENUINE ISSUE FOR TRIAL."  PETITIONER CONTENDS THAT THE
LOWER COURTS MISAPPLIED RULE 56(E) IN THIS CASE AND ERRONEOUSLY PLACED
THE BURDEN ON HIM TO SHOW THAT THERE WAS A MATERIAL ISSUE OF FACT FOR
TRIAL, RATHER THAN FIRST REQUIRING RESPONDENT CITIES SERVICE, THE
MOVANT, TO DEMONSTRATE THE ABSENCE OF A "GENUINE ISSUE AS TO ANY
MATERIAL FACT" UNDER RULE 56(C).  HOWEVER, IT SHOULD BE NOTED THAT THE
DECISIONS BELOW DID NOT PURPORT TO DISCUSS BURDEN OF PROOF AT ALL. 
THEREFORE PETITIONER MUST DEMONSTRATE THAT, REGARDLESS OF WHAT WAS
SPECIFICALLY HELD, THE EFFECT OF THE DECISIONS BELOW WAS TO SO SHIFT
THE BURDEN OF PROOF. 

IT IS TRUE THAT THE ISSUE OF MATERIAL FACT REQUIRED BY RULE 56(C) TO
BE PRESENT TO ENTITLE A PARTY TO PROCEED TO TRIAL IS NOT REQUIRED TO BE
RESOLVED CONCLUSIVELY IN FAVOR OF THE PARTY ASSERTING ITS EXISTENCE;
RATHER, ALL THAT IS REQUIRED IS THAT SUFFICIENT EVIDENCE SUPPORTING THE
CLAIMED FACTUAL DISPUTE BE SHOWN TO REQUIRE A JURY OR JUDGE TO RESOLVE
THE PARTIES' DIFFERING VERSIONS OF THE TRUTH AT TRIAL.  THE CASE AT
HAND PRESENTS PECULIAR DIFFICUTIES BECAUSE THE ISSUE OF FACT CRUCIAL TO
PETITIONER'S CASE IS ALSO AN ISSUE OF LAW, NAMELY THE EXISTENCE OF A
CONSPIRACY.  WHAT RULE 56(E) DOES MAKE CLEAR IS THAT A PARTY CANNOT
REST ON THE ALLEGATIONS CONTAINED IN HIS COMPLAINT IN OPPOSITION TO A
PROPERLY SUPPORTED SUMMARY JUDGMENT MOTION MADE AGAINST HIM.  /19/  YET
THE ANALYSIS OF THE FACTS UNDERTAKEN ABOVE DEMONSTRATES THAT, DUE TO
THE ABSENCE OF PROBATIVE FORCE OF CITIES' FAILURE TO DEAL WITH WALDRON
AS BEING IN ITSELF EVIDENCE OF CONSPIRACY, PETITIONER'S POSITION IS, IN
EFFECT, THAT HE IS ENTITLED TO REST ON THE ALLEGATIONS OF CONSPIRACY
CONTAINED IN HIS PLEADINGS.  THUS PETITIONER REPEATEDLY STATES THAT
CITIES HAS NEVER DISPROVED ITS PARTICIPATION IN THE ALLEGED CONSPIRACY,
DESPITE THE FACT THAT THE ONLY EVIDENCE OF SUCH PARTICIPATION IS HIS
ALLEGATION THAT THE FAILURE TO DEAL RESULTED FROM CONSPIRACY. 

ESSENTIALLY ALL THAT THE LOWER COURTS HELD IN THIS CASE WAS THAT
RULE 56(E) PLACED UPON WALDRON THE BURDEN OF PRODUCING EVIDENCE OF THE
CONSPIRACY HE ALLEGED ONLY AFTER RESPONDENT CITIES SERVICE CONCLUSIVELY
SHOWED THAT THE FACTS UPON WHICH HE RELIED TO SUPPORT HIS ALLEGATION
WERE NOT SUSCEPTIBLE OF THE INTERPRETATION WHICH HE SOUGHT TO GIVE
THEM.  THAT HOLDING WAS CORRECT; TO THE EXTENT THAT PETITIONER'S BURDEN
OF-PROOF ARGUMENT CAN BE INTERPRETED TO SUGGEST THAT RULE 56(E) SHOULD,
IN EFFECT, BE READ OUT OF ANTITRUST CASES AND PERMIT PLAINTIFFS TO GET
TO A JURY ON THE BASIS OF THE ALLEGATIONS IN THEIR COMPLAINTS, COUPLED
WITH THE HOPE THAT SOMETHING CAN BE DEVELOPED AT TRIAL IN THE WAY OF
EVIDENCE TO SUPPORT THOSE ALLEGATIONS, WE DECLINE TO ACCEPT IT.  WHILE
WE RECOGNIZE THE IMPORTANCE OF PRESERVING LITIGANTS' RIGHTS TO A TRIAL
ON THEIR CLAIMS, WE ARE NOT PREPARED TO EXTEND THOSE RIGHTS TO THE
POINT OF REQUIRING THAT ANYONE WHO FILES AN ANTITRUST COMPLAINT SETTING
FORTH A VALID CAUSE OF ACTION BE ENTITLED TO A FULL-DRESS TRIAL
NOTWITHSTANDING THE ABSENCE OF ANY SIGNIFICANT PROBATIVE EVIDENCE
TENDING TO SUPPORT THE COMPLAINT.              V. 

WE HAVE POSTPONED OUR DISCUSSION OF PETITIONER'S CONTENTION THAT HE
SHOULD HAVE BEEN PERMITTED ADDITIONAL DISCOVERY PRIOR TO THE GRANT OF
SUMMARY JUDGMENT TO THIS POINT IN ORDER THAT IT MAY BE EVALUATED IN THE
LIGHT OF WHAT HE HAD SUCCEEDED IN ACCOMPLISHING AS OF THE DATE HE MADE
THE MOTION;

        A. 

PETITIONER MAKE MUCH OF THE FACT THAT THE PRESENT ACTION HAS BEEN
PENDING IN THE LOWER COURTS FOR 11 YEARS AND THAT HE HAS NOT YET
RECEIVED A FORMAL ANSWER TO HIS COMPLAINT FROM ANY DEFENDANT NOR BEEN
PERMITTED ANY GENERAL DISCOVERY.  PETITIONER ALSO COMPLAINS OF THE
INEQUITY OF HIS BEING FACED WITH A MOTION FOR SUMMARY JUDGMENT AFTER
HAVING BEEN DEPOSED FOR THOUSANDS OF PAGES BY THE DEFENDANTS, BUT
BEFORE HE HAS HAD AN OPPORTUNITY TO OBTAIN DISCOVERY FROM THEM.  IN
PARTICULAR, HE EMPHASIZES THAT IN AN ANTITRUST CONSPIRACY CASE
DISCOVERY IS VITAL BECAUSE MOST OF THE EVIDENCE OF CONSPIRACY WILL
NATURALLY BE IN THE HANDS OF THE DEFENDANTS.  HOWEVER, PETITIONER FAILS
TO COME TO GRIPS WITH THE PROBLEMS PRESENTED IN THIS EXTREMELY
COMPLICATED SUIT BY THE FACT THAT ONE OF THE DEFENDANTS, CITIES
SERVICE, HAS FROM THE BEGINNING OF THE LITIGATION ATTEMPTED TO
DISASSOCIATE ITSELF FROM THE OTHERS ON THE GROUND THAT, AS PETITIONER
HIMSELF ACKNOWLEDGED AND INITIALLY ALLEGED, IT WAS IN A TOTALLY
DIFFERENT POSITION FROM THE OTHER DEFENDANTS. 

THUS WHEN PETITIONER EMPHASIZES THE CONSIDERABLE DISCOVERY HAD OF
HIM BY THE DEFENDNATS AS A GROUP, HE IMPLIES THAT CITIES HAS BEEN
UNFAIRLY PERMITTED MORE DISCOVERY OF HIM THAN HE HAS OF IT. HE ATTEMPTS
TO MINIMIZE THE SIGNIFICANCE OF THE FACT THAT CITIES'  PARTICIPATION IN
HIS EXAMINATION AMOUNTED TO A TOTAL OF 3 1/2 DAYS OF DEPOSITION
TESTIMONY BY ARGUING THAT CITIES BENEFITED FROM THE EXTENSIVE
EXAMINATION CONDUCTED BY THE OTHER DEFENDANTS.  THE RECORD REVEALS,
HOWEVER, THAT MUCH OF THE EVIDENCE OBTAINED BY THE OTHER DEFENDANTS IN
DEPOSING PETITIONER AND HIS ASSOCIATES IS RELIED ON HEAVILY BY
PETITIONER HIMSELF TO BOLSTER HIS CASE AGAINST CITIES.  HAD THE RECORD
IN THIS CASE CONSISTED ONLY OF THE EVIDENCE OBTAINED BY PETITIONER FROM
CITIES TOGETHER WITH THE TESTIMONY TAKEN BY CITIES FROM WALDRON,
PETITIONER'S CASE AGAINST CITIES WOULD BE EVEN WEAKER THAN IT IS.  IN
FACT, PETITIONER WOULD UNDOUBTEDLY HAVE CHOSEN TO SUBMIT AFFIDAVITS IN
OPPOSITION TO CITIES' MOTION FOR SUMMARY JUDGMENT CONTAINING MUCH OF
THE SAME MATERIAL INCORPORATED IN HIS AND HIS ASSOCIATES' DEPOSITIONS. 
HENCE PETITIONER BENEFITED AS MUCH VIS-A-VIS CITIES FROM THE
DEPOSITIONS TAKEN BY THE OTHER DEFENDANTS AS CITIES DID.  UNDER SUCH
CIRCUMSTANCES PETITIONER CANNOT JUSTIFIABLY CLAIM THAT CITIES HAS BEEN
GIVEN AN UNFAIR ADVANTAGE BY THE EXTENT OF HIS EXAMINATION BY THE OTHER
DEFENDANTS. 

AS FOR PETITIONER'S GENERAL OBJECTIONS TO THE LENGTH OF TIME THAT
HIS CASE HAS BEEN PENDING, IT IS CLEAR THAT CITIES SERVICE HAS BEEN THE
ONLY PARTY TO THE LITIGATION THAT HAS EXHIBITED ANY CONSISTENT DESIRE
TO EXPEDITE THE PROCEEDINGS, AND THAT, EVEN WHERE POSTPONEMENTS AND
ADJOURNMENTS HAVE BEEN SOUGHT BY EITHER CITIES OR THE OTHER DEFENDANTS,
PETITIONER HAS ALWAYS BEEN WILLING TO ACQUIESCE IN DELAY.  /20/
CERTAINLY PETITIONER CANNOT CLAIM THAT IT WAS THE RESPONSIBILITY OF THE
TRIAL JUDGE TO HURRY MATTERS ALONG BY REJECTING STIPULATIONS ENTERED
INTO BY ALL THE PARTIES TO THE CASE. 

PETITIONER'S MORE VEHEMENT OBJECTIONS HAVE TO DO WITH HIS CLAIM THAT
HE HAS BEEN STAYED FROM OBTAINING GENERAL DISCOVERY OF THE OTHER
DEFENDANTS IN THE CASE THROUGHOUT THE PERIOD DURING WHICH HE HAS SOUGHT
TO BUILD A CASE AGAINST CITIES.  SINCE THERE IS NO INDICATION THAT
PETITIONER WILL BE UNABLE TO OBTAIN GENERAL DISCOVERY AT SOME FUTURE
DATE OF THE OTHER DEFENDANTS FOR USE AGAINST THEM IN THE CASE STILL
PENDING BELOW, THE ISSUE HERE IS WHETHER HE CAN COMPEL CITIES TO REMAIN
A PARTY TO THE LITIGATION PENDING SUCH GENERAL DISCOVERY.  ASSUMING THE
CORRECTNESS OF PETITIONER'S CLAIM THAT HE HAS BEEN STAYED FROM
CONDUCTING SUCH DISCOVERY (A CLAIM DISPUTED NOT ALTOGETHER
UNPERSUASIVELY BY RESPONDENT), THE FACT REMAINS THAT PETITIONER HAS HAD
DISCOVERY OF THE ONE PARTY HE IS PRESENTLY OPPOSING AND, THEREFORE, HIS
RIGHT TO ADDITIONAL DISCOVERY MUST DEPEND ON THE STRENGTH OF HIS
ARGUMENT THAT IT IS NECESSARY TO HIS CASE AGAINST THAT PARTY, 

WHILE PETITIONER NOW ASSERTS THAT HE HAS BEEN VIGOROUSLY DEMANDING
DISCOVERY OF THE OTHER DEFENDANTS RIGH ALONG, THE RECORD REVEALS THAT
BACK IN 1960, ON ONE OF THE OCCASIONS AT WHICH PETITIONER CLAIMS TO
HAVE REQUESTED SUCH DISCOVERY, HIS COUNSEL STATED, "I THINK THE OBVIOUS
PLACE TO BEGIN IS WITH CITIES SERVICE * * * AND WHETHER WE NEED TO GO
FARTHER THAN THAT I DON'T KNOW, AND IT WOULD DEPEND VERY MUCH ON WHAT
TURNED UP THERE . . . . "  IT WAS ONLY AFTER TWO EXAMINATIONS OF CITIES
SERVICE PERSONNEL THAT PETITIONER FINALLY MADE A FORMAL MOTION FOR
DISCOVERY OF THE OTHER DEFENDANTS IN ANTICIPATION OF CITIES' RENEWAL OF
ITS MOTION FOR SUMMARY JUDGMENT.  CITIES' RENEWAL OF ITS MOTION FOR
SUMMARY JUDGMENT.  IN SUPPORT OF THIS MOTION PETITIONER WAS ABLE TO
POINT TO NO SIGNIFICANT EVIDENCE THAT HE HAD TURNED UP TO SHOW ANY
DEALINGS BETWEEN CITIES AND THE OTHER DEFENDANTS, OTHER THAN THE
LARGELY ABANDONED KUWAIT OIL TRANSACTION.  HIS BASIC ARGUMENT WAS, AND
IS, SIMPLY THE GENERAL PROPOSITION THAT IN A CONSPIRACY CASE THE
EVIDENCE IS USUALLY IN THE HANDS OF THE CONSPIRATORS AND THAT,
THEREFORE, HE SHOULD HAVE BEEN PERMITTED TO EXAMINE THE OTHER ALLEGED
CONSPIRATORS TO SEE IF HE COULD OBTAIN ANYTHING FROM THEM THAT WOULD
TEND TO LINK CITIES TO THEM. 

IT IS PROBABLY TRUE THAT IN THE ORDINARY CONSPIRACY CASE A PLAINTIFF
WOULD BE ENTITLED TO OBTAIN DISCOVERY AGAINST ALL THE ALLEGED
CONSPIRATORS INSTEAD OF BEING OBLIGATED TO PROCEED AGAINST THEM
SERIATIM.  HOWEVER, IN THIS CASE, BY THE PLAINTIFF'S OWN DOING, ONE OF
THE ALLEGED CONSPIRATORS WAS SINGLED OUT FROM THE REST AS HAVING JOINED
THE CONSPIRACY AT A MUCH LATER DATE AS THE RESULT OF SPECIFIC
INDUCEMENTS.  BEING PLACED BY PETITIONER'S COMPLAINT IN THE POSITION OF
BEING WHAT MIGHT BE TERMED A TANGENTIAL DEFENDANT, CITIES LEGITIMATELY
ATTEMPTED TO EXTRICATE ITSELF FROM AN EXPENSIVE AND PROTRACTED
LAWSUIT.  WE DO NOT MEAN TO IMPLY THAT A PLAINTIFF SHOULD BE BARRED
FROM CHANGING THE THEORY OF HIS CASE IN RESPONSE TO INFORMATION HE
OBTAINS IN THE COURSE OF DISCOVERY.  BUT WHEN THE EVIDENCE SO OBTAINED
SHOWS BOTH THAT THE DEFENDANT IS IN FACT TANGENTIAL AND THAT THE
ALLEGATIONS BY WHICH HE WAS LINKED TO THE OTHER DEFENDANTS ARE
FACTUALLY INCORRECT, WE THINK THAT A BURDEN SHOULD INDEED BE PLACED ON
THE PARTY CHANGING HIS THEORY TO SHOW A SIGNIFICANT LIKELIHOOD THAT
DISCOVERY OF THE OTHER DEFENDANTS WOULD PRODUCE EVIDENCE DIFFERENT FROM
THAT OBTAINED THUS FAR.  IN THIS CASE PETITIONER HAS ONLY SPECULATION
AS TO WHAT DISCOVERY OF THE OTHER DEFENDANTS WOULD REVEAL ABOUT THEIR
RELATIONS WITH CITIES SERVICE, AND NOT VERY PERSUASIVE SPECULATION AT
THAT, SINCE ALL THE EVIDENCE THUS FAR PRODUCED BY ANY PARTY ON THIS
SUBJECT SUPPORTS THE HYPOTHESIS THAT CITIES WAS OPPOSED TO THE OTHER
DEFENDANTS RATHER THAN IN COLLUSION WITH THEM.  ACCORDINGLY, IT WAS NOT
ERROR ON THE PART OF JUDGE HERLANDS ON THESE FACTS TO DENY THAT PORTION
OF PETITIONER'S MOTION IN OPPOSITION TO SUMMARY JUDGMENT THAT REQUESTED
GENERAL DISCOVERY OF ALL THE OTHER DEFENDANTS IN THIS CASE. 

B. 

PETITIONER ACKNOWLEDGES THE FACT THAT HE HAS HAD SOME DISCOVERY OF
CITIES SERVICE PURSUANT TO COURT ORDER.  HOWEVER, HE CONTENDS
VIGOROUSLY THAT THE DISCOVERY HE HAS OBTAINED HAS BEEN TOO LIMITED TO
ENABLE HIM ADEQUATELY TO RESIST THE MOTION FOR SUMMARY JUDGMENT. 
PETITIONER POINTS OUT THAT HE WAS INITIALLY LIMITED TO TAKING THE
DEPOSITION OF HILL INSTEAD OF JONES, NOTWITHSTANDING THE FACT THAT
JONES WAS THE PERSON AT CITIES WITH WHOM HE PRIMARILY DEALT WITH REGARD
TO THE IRANIAN OIL SITUATION.  HE CLAIMS PREJUDICE FROM THE FACT THAT
JONES DIED BEFORE HE COULD BE DEPOSED IN THAT THOSE CITIES' PERSONNEL
WHOM HE EVENTUALLY DEPOSED, NAMELY, WATSON, FRAME, AND HESTON, WERE NOT
AN ADEQUATE SUBSTITUTE FOR JONES.  HE ALSO ARGUES THAT HE SHOULD HAVE
BEEN ALLOWED TO DEPOSE CARTER.  FINALLY, PETITIONER ASSERTS THAT HIS
EXAMINATION OF THE THREE EXECUTIVES WAS IMPROPERLY LIMITED IN SCOPE BY
JUDGE HERLANDS AND THAT HE SHOULD HAVE BEEN PERMITTED GENERAL ACCESS TO
CITIES' FILES FOR ALL DOCUMENTS IN CONNECTION WITH CITIES' ACTIVITIES
IN IRANIAN OIL BETWEEN THE TIME HE FIRST APPROACHED CITIES AND 1955 IN
ORDER TO COMPENSATE FOR HIS INABILITY TO EXAMINE JONES. 

IT HAS ALREADY BEEN OBSERVED /21/  THAT THE ABSENCE OF TESTIMONY
FROM JONES IN THIS LITIGATION IS LARGELY HAPPENSTANCE, SINCE THERE IS
ABSOLUTELY NO INDICATION THAT JUDGE HERLANDS WOULD NOT HAVE PERMITTED
HIM TO BE DEPOSED WHEN WATSON, FRAME, AND HESTON WERE EXAMINED HAD HE
BEEN AVAILABLE.  IN ADDITION, WHILE IT IS DOUBTLESS TRUE THAT JONES, AS
PRESIDENT OF CITIES, COULD HAVE TESTIFIED MORE AUTHORITATIVELY WITH
REGARD TO CERTAIN OF THE QUESTIONS CONCERNING CITIES' DEALINGS IN
IRANIAN OIL, PETITIONER'S CONSISTENT ATTEMPT TO PORTRAY THOSE CITIES
EXECUTIVES WHO WERE DEPOSED AS UNINFORMED UNDERLINGS IS SUBSTANTIALLY
OVERSTATED.  NOTWITHSTANDING SOME AREAS OF IGNORANCE, WATSON, FRAME,
AND HESTON WERE PRIVY TO A CONSIDERABLE AMOUNT OF INFORMATION IN
CONNECTION WITH CITIES' DEALINGS BOTH WITH IRAN AND WITH THE OTHER
DEFENDANTS.  WHILE JONES MAY HAVE BEEN THE DOMINANT FIGURE IN THE
CITIES OPERATION, IT IS SIMPLY UNREALISTIC FOR PETITIONER TO SUGGEST
THAT JONES COULD HAVE INVOLVED CITIES IN A CONSPIRACY ON THE SCALE
WHICH IS ALLEGED TO HAVE EXISTED HERE WITHOUT ANY KNOWLEDGE ON THE PART
OF THE OTHER MAJOR EXECUTIVES OF THE COMPANY. 

PETITIONER'S DESIRE TO DEPOSE CARTER, WHICH APPEARED FOR THE FIRST
TIME IN THE LITIGATION AT THIS LATE DATE, IS INTERSTING IN LIGHT OF THE
FACT THAT ORIGINALLY CARTER HAD BEEN LISTED AS ONE OF PETITIONER'S
ASSOCIATES AND THE DEFENDANTS HAD FORMALLY NOTICED THEIR INTENTION TO
DEPOSE HIM IN THAT CAPACITY.  PETITIONER DOES NOT ADEQUATELY EXPLAIN
WHY, IF SUCH WERE IN FACT THE CASE, HE REQUIRED A COURT ORDER TO
EXAMINE CARTER, WHO WAS NOT AN EMPLOYEE OF CITIES.  IT SHOULD BE
EMPHASIZED IN THIS CONNECTION THAT SO FAR AS APPEARS FROM THE RECORD
PETITIONER HAS INTRODUCED ABSOLUTELY NO EVIDENCE ON HIS OWN BEHALF IN
THIS CASE EXCEPT THE DEPOSITION TESTIMONY OBTAINED FROM HIMSELF AND HIS
ASSOCIATES BY THE DEFENDANTS AND THE TESTIMONY AND DOCUMENTS OBTAINED
FROM CITIES PURSUANT TO JUDGE HERLANDS' VARIOUS DISCOVERY ORDERS, 

PETITIONER'S COUNSEL STATED IN HIS AFFIDAVIT ATTACHED TO THE
DISCOVERY MOTION THAT CARTER BECAME AN ADHERENT OF CITIES IMMEDIATELY
AFTER PETITIONER FILED HIS COMPLAINT AND IMPLIED THAT CARTER WOULD NOT
VOLUNTARILY TESTIFY.  ASSUMING THAT TO BE TRUE, ALTHOUGH SUCH AN
ASSUMPTION SEEMS OPEN TO QUESTION IN VIEW OF THE ABSENCE OF ANY
SPECIFIC ALLEGATION TO THAT EFFECT, /22/  NO EXPLANATION IS PROFFERED
AS TO WHY PETITIONER DID NOT TRY TO OBTAIN DISCOVERY OF CARTER EARLIER
IF HIS TESTIMONY WERE THOUGHT NECESSARY TO PETITIONER'S CASE. 
PETITIONER WAS AWARE LONG BEFORE LATE 1964 THAT CITIES WAS CONTENDING
THAT IT WAS NOT A MEMBER OF ANY CONSPIRACY THAT MAY HAVE EXISTED
BETWEEN THE OTHER DEFENDANTS, AND THAT IT RESISTED BEING PUT TO THE
EXPENSE OF PARTICIPATING IN WHAT SHOWED EVERY SIGN OF BEING AN
EXTREMELY PROTRACTED LITIGATION.  GIVEN THE FACT THAT JUDGE HERLANDS
HAD STATED, IN DECLINING TO GRANT CITIES' ORIGINAL MOTION FOR SUMMARY
JUDGMENT BACK IN 1961, THAT HE REGARDED PETITIONER'S CASE AGAINST
CITIES AS EXTREMELY WEAK, IT SEEMS QUITE PROPER TO INFER FROM THE
TIMING OF PETITIONER'S INITIAL REQUEST TO DEPOSE CARTER THAT HE DID NOT
REGARD CARTER AS SOMEONE WHOSE TESTIMONY WAS SIGNIFICANTLY LIKELY TO
HLEP HIM RESIST A MOTION FOR SUMMARY JUDGMENT; ON THE CONTRARY, THE
TIMING OF THE INITIAL REQUEST SUGGESTS STONGLY THAT PETITIONER WAS MORE
INTERESTED IN ESTABLISHING GROUNDS ON WHICH TO CONTEND THAT CITIES'
MOTION FOR SUMMARY JUDGMENT SHOULD NOT YET BE GRANTED THAN HE WAS IN
ACTUALLY DISCOVERING WHAT EVIDENCE CARTER WAS IN A POSITION TO FURNISH
TO HIM.  THERE IS NO REAL INDICATION, DESPITE HIS ARGUMENTS TO THE
CONTRARY, THAT PETITIONER OBTAINED INFORMATION IN THE COURSE OF HIS
PRIOR DISCOVERY THAT MADE CARTER A MORE VITAL WITNESS IN 1964 THAN HE
WOULD HAVE BEEN IN 1961 OR 1963. 

AS FOR PETITIONER'S DOCUMENTARY REQUESTS, AND HIS COMPLAINTS ABOUT
IMPROPER LIMITATION OF HIS PREVIOUS DISCOVERY PRESENTED IN SUPPORT
THEREOF, IT IS APPARENT THAT THE TIME PERIOD TO WHICH THEY RELATE IS IN
LARGE PART A PERIOD DURING WHICH PETITIONER WAS NO LONGER HAVING ANY
DEALINGS WITH CITIES.  THIS IS IMPORTANT BECAUSE OF TWO FACTORS CRUCIAL
TO WALDRON'S CONSPIRACY CHARGE AGAINST RESPONDENT:  FIRST, PETITIONER
ARGUES THAT CITIES JOINED THE CONSPIRACY WHEN IT REFUSED TO GO THROUGH
WITH A DEAL THROUGH HIM FOR IRANIAN OIL, NAMELY, IN THE LATTER PART OF
1952, AND SECOND, PETITIONER'S CONTRACT WITH NIOC, THE PROPERTY RIGHT
ALLEGEDLY INTERFERED WITH BY THE ILLEGAL BOYCOTT, EXPIRED IN THE SPRING
OF 1953.  IN ADDITION, PETITIONER HAD AT THE TIME OF THIS MOTION
ALREADY OBTAINED DISCOVERY OF A VERY SUBSTANTIAL NUMBER OF DOCUMENTS
HAVING TO DO WITH CITIES' DEALINGS IN IRANIAN OIL PRIOR TO NOVEMBER 1,
1952, THE LATEST POINT IN TIME EVERY SERIOUSLY SUGGESTED BY PETITIONER
FOR CITIES TO HAVE JOINED THE CONSPIRACY. 

IN A PROPER CASE, OF COURSE, A PARTY MIGHT WELL HAVE THE RIGHT TO
DEMAND DISCOVERY OF DOCUMENTS FROM AN OPPOSING PARTY DEALING WITH
ACTIVITIES DURING A PERIOD OUTSIDE THAT COVERED BY THE SUBJECT MATTER
OF THE LAWSUIT IN ORDER TO PROVIDE SOME INDICATION OF THE RAMIFICATIONS
OF THE ACTIONS FORMING THE BASIS OF THE COMPLAINT. WE DO NOT DOUBT
THAT, HAD PETITIONER INTRODUCED SOME SIGNIFICANT EVIDENCE THAT CITIES
HAD BECOME A MEMBER OF THE ONSPIRACY ALLEGED IN HIS COMPLAINT, MORE
EXTENDED DISCOVERY UNDER RULE 56(F) OF CITIES'  ACTIVITIES SUBSEQUENT
TO ITS REFUSAL TO DEAL WITH HIM WOULD HAVE BEEN PROPER; LIKEWISE, GIVEN
SUFFICIENT EVIDENCE OF CONSPIRACY, BROADER ACCESS TO CITIES' FILES FOR
THE PERIOD WITHIN WHICH PETITIONER HAD ALREADY HAD DISCOVERY WOULD HAVE
BEEN IN ORDER; BUT IN THIS CASE PETITIONER WAS ATTEMPTING, IN EFFECT,
TO OBTAIN DISCOVERY OF PERIPHERAL ASPECTS OF CITIES' ALLEGED
PARTICIPATION IN THE CONSPIRACY, AFTER HAVING FAILED, DESPITE ALREADY
SUBSTANTIAL DISCOVERY, TO OBTAIN ANY SIGNIFICANT EVIDENCE OF CONSPIRACY
FOR THE PERIOD DURING WHICH IT WAS ALLEGED TO HAVE DIRECTLY INJURED
HIM.  IT IS PRECISELY BECAUSE THE DISCOVERY OBTAINABLE UNDER RULE 56(F)
/23/  TO OPPOSE A MOTION FOR SUMMARY JUDGMENT WOULD NORMALLY BE LESS
EXTENSIVE IN SCOPE THAN THE GENERAL DISCOVERY OBTAINABLE UNDER RULE 26,
THAT SUCH A MANNER OF PROCEEDING WAS PROPERLY REFUSED HERE. 

NOTWITHSTANDING WALDRON'S COMPLAINTS ABOUT THE LIMITATIONS PLACED ON
HIS DISCOVERY OF MATERIALS AND WITNESSES, IT IS EVIDENT THAT HE HAS HAD
SUFFICIENT DISCOVERY EITHER TO SUBSTANTIATE HIS CLAIMS OF CONSPIRACY TO
THE EXTENT OF RAISING A MATERIAL ISSUE OF FACT THEREON, OR OF PROVIDING
A BASIS FOR INVESTIGATION OF HIS OWN TO GATHER ADDITIONAL EVIDENCE
DURING THE FIVE YEARS FOR WHICH CITIES' MOTION WAS PENDING BELOW.  THE
FACT THAT PETITIONER ACCOMPLISHED NEITHER OF THESE ENDS WITH THE
DISCOVERY HE OBTAINED IS AMPLE SUPPORT FOR THE TRIAL JUDGE'S
DETERMINATION THAT ADDITIONAL DISCOVERY WOULD BE FUTILE AND WOULD
MERELY OPERATE TO REQUIRE CITIES TO PARTICIPATE FURTHER IN LITIGATION
IN WHICH IT HAD BEEN ORIGINALLY JOINED SOLELY IN THE BASIS OF
CONJECTURE. 

FOR THE FOREGOING REASONS WE HOLD THAT SUMMARY JUDGMENT WAS PROPERLY
AWARDED IN THE COURTS BELOW TO RESPONDENT. 

AFFIRMED. 

/1/  PLAINTIFF, GERALD B. WALDRON, DIED IN NOVEMBER 1964.  HIS
EXECUTOR HAS BEEN SUBSTITUTED AS THE PETITIONER.  WE SHALL REFER TO
BOTH WALDRON AND THE EXECUTOR AS "PETITIONER" OR "WALDRON"
INTERCHANGEABLY. 

/2/  GULF SUBSEQUENTLY SETTLED WITH PETITIONER AND IS NO LONGER A
PARTY DEFENDANT, ALTHOUGH IT REMAINS AS AN ALLEGED CO-CONSPIRATOR. 

/3/  THIS PRACTICE HAS SINCE BEEN CHANGED BY RULE.  SEE 4 MOORE,
FEDERAL PRACTICE PARA 26.13(3), AT 1154 (2D ED. 1967). 

/4/  ANGLO-IRANIAN WAS A CO-OWNER OF THE KUWAIT OIL CO., THE ACTUAL
HOLDER OF THE ENTIRE KUWAIT OIL CONCESSION, BUT DOES NOT APPEAR TO HAVE
PARTICIPATED IN THE NEGOTIATIONS WITH CITIES. 

/5/  PETITIONER ARGUES THAT A "MOST-FAVORED-NATIONS CLAUSE" WAS
INSERTED AT THE LAST MINUTE FOR THE BENEFIT OF CITIES.  THE RECORD
REVEALS THAT THE SO-CALLED CLAUSE WAS SIMPLY A UNILATERAL DECLARATION
FROM GULF IN THE FORM OF A LETTER FROM ITS CHAIRMAN OF THE BOARD THAT
IN THE EVENT OF FUTURE PRICE CHANGES ITS POLICY WOULD BE TO GIVE CITIES
THE BENEFIT OF THE BETTER PRICE. 

/6/  231 F.SUPP.  72. 

/7/  CITIES' PRESIDENT, W. ALTON JONES, DIES IN AN AIRPLANE CRASH ON
MARCH 1, 1962.  THREE OTHER CITIES' EXECUTIVES WHO HAD PARTICIPATED IN
VARYING DEGREES IN CITIES' EXPLORATION OF THE POSSIBILITY OF PURCHASING
IRANIAN OIL HAD ALSO DIES BY THIS TIME. 

/8/  ALTHOUGH PETITIONER'S DISCOVERY MOTION PRECEDED RESPONDENT'S
RENEWAL OF ITS SUMMARY JUDGMENT MOTION, IT IS EVIDENT THAT PETITIONER'S
MOTION WAS MADE WITH FULL KNOWLEDGE THAT A RENEWAL OF RESPONDENT'S
MOTION WOULD SOON BE FORTHCOMING.  IN A VERY REAL SENSE IT WAS THUS A
RESPONSE TO THE SUMMARY JUDGMENT MOTION AND WAS INTENDED TO SERVE AS A
GROUND FOR ARGUING THAT THE MOTION SHOULD NOT BE GRANTED. 

/9/  38 F.R.D. 170. 

/10/  361 F.2D 671 (1966). 

/11/  DOCUMENTS COVERING INTERNAL CITIES' DISCUSSION OF THESE
MATTERS WERE ALSO ORDERED TO BE PRODUCED FOR THE PERIOD FROM OCTOBER 1,
1952, TO NOVEMBER 1, 1952. 

/12/  SEE N. 7, SUPRA. 

/13/  FOR THE PURPOSE OF EVALUATING WALDRON'S CASE AGAINST CITIES,
HIS ALLEGATIONS ABOUT A CONSPIRACY TO BOYCOTT HIM CARRIED OUT BY THE
OTHER DEFENDANTS HEREIN MUST BE TAKEN BOTH AS TRUE AND AS LEGALLY
SUFFICIENT.  WE, OF COURSE, INTIMATE NO OPINION ON THE MERITS OF
PETITIONER'S CLAIMS AGAINST THE OTHER DEFENDANTS THAT ARE STILL PENDING
BELOW. 

/14/  AT THIS DATE WATSON WAS CITIES' SENIOR VICE PRESIDENT.  HE
SUBSEQUENTLY BECAME CHAIRMAN OF THE BOARD. 

/15/  THIS PERCENTAGE WAS MADE UP OF THE THREE EQUAL SHARES
INITIALLY AWARDED TO RICHFIELD, CITIES, AND THE SINCLAIR OIL CORP.
(SINCLAIR ALSO HELD ABOUT A ONE-THIRD STOCK INTEREST IN RICHFIELD.) 
CITIES AND SINCLAIR BOTH TRANSFERRED THEIR SHARES TO RICHFIELD,
APPARENTLY FOR NO CONSIDERATION. 

/16/  IN HIS BRIEF IN THIS COURT PETITIONER DRASTICALLY CHANGES HIS
THEORY OF CONSPIRACY.  HE NOW ARGUES THAT CITIES' PARTICIPATION IN THE
CONSPIRACY WAS OBTAINED BY THREATS OF RETALIATION FROM THE OTHER
DEFENDANTS.  WHILE CONCEIVABLY PETITIONER COULD HAVE ARGUED AT THE
TRIAL LEVEL THAT UNDER WUCH CASES AS KLORS, INC. V. BROADWAY-HALE
STORES, INC., 359 U.S. 207 (1959), AND UNITED STATES V. PARKE, DAVIS &
CO., 362 U.S. 29 (1960), ACQUIESCENCE BECAUSE OF THREATS IN AN ILLEGAL
SCHEME CONCEIVED AND CARRIED OUT BY OTHERS FOR THEIR OWN BENEFIT MAKES
THE ACQUIESCING PARTY A MEMBER OF AN ILLEGAL COMBINATION, WE DECLINE TO
PASS UPON SUCH A CONTENTION WHEN IT IS PRESENTED FOR THE FIRST TIME IN
THIS COURT.  ALTHOUGH AT ONE POINT IN THIS COMPLEX AND PROTRACTED CASE,
WHICH HAS THUS FAR PRODUCED OVER 12,000 PAGES OF RECORD, THE PETITIONER
ALLEGED THAT THE OTHER DEFENDANTS HAVE "SECRETLY THREATENED, INDUCED
AND CONSPIRED WITH DEFENDANT CITIES SERVICE TO BREAK OFF ALL DEALINGS
WITH PLAINTIFF," THIS INTIMATION OF A COERCED ACQUIESCENCE THEORY WAS
NEVER PROPERLY PURSUED.  KLORS AND PARKE, DAVIS HAVE NOT BEEN CITED OR
DISCUSSED BY PETITIONER ONCE IN THE ENTIRE COURSE OF THESE
PROCEEDINGS.  ONE SEARCHES IN VAIN AMONG PETITIONER'S PAPERS PRIOR TO
ARGUMENT IN THIS COURT FOR A SINGLE INTELLIGIBLE STATEMENT OF THIS
THEORY.  IN THESE CIRCUMSTANCES WE CANNOT ATTRIBUTE ERROR TO THE COURTS
BELOW FOR THEIR FAILURE TO DISCERN SUCH A THEORY, NOR WOULD IT BE
APPROPRIATE AT THIS STAGE IN THE CASE FOR US TO PASS UPON PETITIONER'S
THEORY OF COMBINATION THROUGH COERCED ACQUIESCENCE AND THE ACCOMPANYING
DIFFICULT QUESTIONS IT WOULD RAISE CONCERNING CITIES' LIABILITY TO
PETITIONER OR POSSIBLE RIGHTS OVER AGAINST THE OTHER DEFENDANTS. 

/17/  PETITIONER ARGUES THAT CITIES HAS THUS FAR FAILED SPECIFICALLY
TO DENY THE ALLEGATIONS IN HIS COMPLAINT CHARGING IT WITH CONSPIRACY. 
IN HIS ORIGINAL COMPLAINT PETITIONER CHARGED THAT CITIES "(AT THIS TIME
AND BY THESE ACTS (REFERRING TO THE KUWAIT DEAL AND THE CONSORTIUM
AGREEMENT) . . . ENTERED INTO COMBINATION AND CONSPIRACY WITH THE OTHER
DEFENDANTS."  CITIES SUBMITTED AN AFFIDAVIT DENYING THAT KUWAIT OIL AND
A SHARE IN THE CONSORTIUM HAD BEEN GIVEN IT AS PART OF A CONSPIRACY. 
IN OTHER WORDS, CITIES DENIED THE FACTUAL ALLEGATIONS OF PETITIONER BUT
NOT THE ULTIMATE LEGAL CONCLUSION BASED THEREON, NAMELY CONSPIRACY.  A
FAIR READING OF THAT DOCUMENT REQUIRES THAT IT BE GIVEN ITS INTENDED
EFFECT AS A DENIAL OF PETITIONER'S CLAIM AGAINST CITIES.  MOREOVER,
PETITIONER NEVER MADE THIS ARGUMENT IN EITHER OF THE LOWER COURTS
(ESPECIALLY NOT IN THE DISTRICT COURT WHERE CITIES COULD HAVE REMEDIES
ANY DEFECTS IN THE PAPERS SUPPORTING ITS MOTION HAD THEY BEEN POINTED
OUT IN TIME) AND WE ARE NOT DISPOSED TO CONSIDER IT NOW, PARTICULARLY
IN LIGHT OF ITS EXTREME TECHNICALITY AS APPLIED TO THE FACTS OF THIS
CASE. 

PETITIONER ALSO OBJECTS THAT ONLY W. ALTON JONES COULD HAVE
ADEQUATELY DENIED THE ALLEGATIONS OF CONSPIRACY AND URGES, THEREFORE,
THAT CITIES' SUBMISSION OF SUCH AN AFFIDAVIT FROM HILL RATHER THAN FROM
JONES SHOULD BE HELD AGAINST CITIES AS EVIDENCE OF CONSPIRACY. 
HOWEVER, AS PREVIOUSLY POINTED OUT, HILL WAS THE NATURAL PERSON TO
RESPOND TO PETITIONER'S FACTUAL ALLEGATIONS ABOUT KUWAIT AND THE
CONSORTIUM.  SEE SUPRA, AT 271.  CONTRARY TO PETITIONER'S
CHARACTERIZATION OF HILL AS AN ATTORNEY AND AN UNDERLING, HILL WAS AN
EXECUTIVE VICE PRESIDENT OF CITIES, WHO HAD GONE TO LAW SCHOOL MANY
YEARS BEFORE BUT WHO HAD NOT PRACTICED LAW IN A LONG TIME.  AS FOR
PETITIONER'S FAILURE TO EXAMINE JONES, THAT HAS BEEN SHOWN ABOVE TO BE
DUE BASICALLY TO HIS OWN LACK OF DILIGENCE.  SEE ALSO N. 20, INFRA. 

/18/  SEE GENERALLY TURNER, THE DEFINITION OF AGREEMENT UNDER THE
SHERMAN ACT:  CONSCIOUS PARALLELISM AND REFUSAL TO DEAL, 75
HARV.L.REV.  655 (1962). 

/19/  INDEED IT WAS FOR THE PRECISE PURPOSE OF OVERTURNING A LINE OF
CASES IN THE THIRD CIRCUIT HOLDING THAT A PARTY COULD SUCCESSFULLY
OPPOSE SUMMARY JUDGMENT BY RELYING ON HIS WELL-PLEADED ALLEGATIONS THAT
RULE 56(E) WAS AMENDED IN 1963.  SEE 6 MOORE, FEDERAL PRACTICE PARA
56.22(2), AT 2821 (2D ED. 1966). 

/20/  IT MUST BE REMEMBERED THAT THE FACT THAT APPROXIMATELY SIX
YEARS HAD ELAPSED BETWEEN THE DATE PETITIONER FILED HIS COMPLAINT AND
THE COMPLETION OF THE EXAMINATION OF PETITIONER AND HIS ASSOCIATES IS
IN NO WAY THE RESPONSIBILITY OF THE TRIAL JUDGE.  BOTH PARTIES HAD, AS
PRVIOUSLY DESCRIBED, ENTERED INTO NUMEROUS STIPULATIONS POSTPONING THE
TAKING OF DEPOSITIONS FOR MONTHS AT A TIME.  PETITIONER ARGUES THAT HE
CANNOT BE PENALIZED FOR NOT WORKING FULL TIME AT SUPPLYING THE
DEFENDANTS WITH DESPOSITION TESTIMONY.  THIS IS CERTAINLY CORRECT. 
HOWEVER, PETITIONER CANNOT, BY THE SAME TOKEN, ATTEMPT TO PENALIZE
RESPONDENT FOR DELAYS IN WHICH HE ACQUIESCED WITH NO HINT OF
OBJECTION.  CERTAINLY NO ONE WILL CONTEND THAT OVER 5 1/2 YEARS
REPRESENTS AN EXAMPLE OF THE SPEED THAT A PARTY INTEREST IN SECURING A
SWIFT RESOLUTION OF HIS CLAIMS WILL REQUIRE IN ORDER FOR HIMSELF AND
HIS ASSOCIATES TO GIVE 153 DAYS OF TESTIMONY. 

/21/  SEE SUPRA, AT 272. 

/22/  IN FACT, THE AFFIDAVIT SUBMITTED BY PETITIONER'S COUNSEL IN
SUPPORT OF HIS DISCOVERY MOTION IS REPLETE WITH REFERENCES TO THE ILL
USE CARTER ALLEGEDLY SUFFERED AT THE HANDS OF CITIES-- RATHER AN
UNPERSUASIVE ARGUMENT IN SUPPORT OF THE SUGGESTION THAT IN SOME WAY
CITIES HAD PREVENTED WALDRON FROM OBTAINING ACCESS TO CARTER. 

/23/  PETITIONER CONCEDED BELOW THAT HIS DISCOVERY SHOULD PROCEED
UNDER RULE 56(F) RATHER THAN RULE 26. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

THE COURT HERE UPHOLDS A SUMMARY JUDGMENT AGAINST A PLAINTIFF IN A
SUIT FOR TREBLE DAMAGES UNDER THE SHERMAN ANTITRUST ACT.  THE CASE IS A
COMPLEX ONE IN WHICH THE SUMMARY JUDGMENT WAS ENTERED 11 YEARS AFTER
THE ACTION WAS BROUGHT.  IT IS STRANGE, INDEED, THAT DURING THE MORE
THAN 11 YEARS BEFORE THE SUMMARY JUDGMENT WAS ENTERED, THE DEFENDANT
CITIES SERVICE SHOULD HAVE ENJOYED THE LUXURY OF NEVER HAVING BEEN
COMPELLED BY THE COURT TO ANSWER THE COMPLAINT, NEVER HAVING BEEN
REQUIRED EITHER TO ADMIT OR DENY THE PLAINTIFF'S CHARGES THAT THE
DEFENDANT HAD ENTERED INTO A CONSPIRACY TO DESTROY PLAINTIFF'S BUSINESS
BY BOYCOTTING IT.  THERE IS ONE THING STILL STRANGER AND MORE FANTASTIC
ABOUT THE CASE; ALTHOUGH THE COURT PERMITTED THE DEFENDANTS TO
INTERROGATE THE PLAINTIFF FOR 153 DAYS OVER A PERIOD OF 5 1/2 YEARS,
THE SAME COURT REFUSED DURING THE 11 YEARS TO PERMIT THE PLAINTIFF TO
ASK ANY QUESTIONS WHATEVER OF MANY OF CITIES' OFFICERS AND EMPLOYEES
WHO WERE MOST FAMILIAR WITH TRANSACTIONS ABOUT WHICH THE PLAINTIFF
COMPLAINED.  AND ALL THIS WAS DONE IN THE FACE OF OUR HOLDING IN POLLER
V. COLUMBIA BROADCASTING SYSTEM, INC., 368 U.S. 464, 473 (1962), THAT
"SUMMARY PROCEDURES SHOULD BE USED SPARINGLY IN COMPLEX ANTITRUST
LITIGATION" AND THAT "(TRIAL BY AFFIDAVIT IS NO SUBSTITUTE FOR TRIAL BY
JURY WHICH SO LONG HAS BEEN THE HALLMARK OF 'EVEN HANDED JUSTICE.'" 

THE FOLLOWING STATEMENT OF THE WAY THIS SUMMARY JUDGMENT WAS ENTERED
IS SUFFICIENT, I THINK, TO SHOW THE GROSS ERROR OF THE COURT'S
AFFIRMANCE OF THE JUDGMENT. 

IN 1956 PETITIONER WALDRON /1/  BROUGHT SUIT AGAINST THE STANDARD
OIL COMPANY (NEW JERSEY) AND SIX OTHER MAJOR OIL COMPANIES INCLUDING
CITIES SERVICE CO., THE RESPONDENT HERE.  THE COMPLAINT ALLEGED A
GENERAL CONSPIRACY BEGINNING IN 1928 ON THE PART OF ALL THE DEFENDANTS
BUT CITIES.  IT WAS ALLEGED THAT CITIES JOINED THE CONSPIRACY AFTER THE
GOVERNMENT OF IRAN NATIONALIZED THE PROPERTIES OF THE ANGLO-IRANIAN OIL
COMPANY IN MAY 1951, AND THAT THE DEFENDANTS CONSPIRED TOGETHER TO
PREVENT PETITIONER WALDRON FROM SELLING ANY OF THE IRANIAN OIL.  TO
CARRY OUT THE BOYCOTT THE ALLEGED CONSPIRATORS THREATENED ALL OTHER
COMPANIES WITH DIRE ECONOMIC CONSEQUENCES IF THEY DEALT IN THE IRANIAN
OIL.  DESPITE THESE THREATS, CITIES, WHICH DID NOT CONTROL SOURCES OF
OIL ADEQUATE TO SUPPLY ITS CUSTOMERS AND WHICH THEREFORE HAD BEEN
COMPELLED TO BUY FROM THE MAJOR COMPANIES, EXPRESSED TO PETITIONER A
DESIRE TO OBTAIN IRANIAN OIL.  PETITIONER WAS OFFERING TO SELL THE
IRANIAN OIL ON VERY ATTRACTIVE TERMS, AND CITIES AGREED TO GO TO IRAN
IN ORDER TO EVALUATE THE PROSPECTS, PROVIDED IT RECEIVED AN INVITATION
FROM IRANIAN PREMIER MOSSADEGH.  PETITINER THEREUPON WENT TO IRAN,
SECURED A WRITTEN INVITATION FROM THE PREMIER, AND IN DUE COURSE THE
PRESIDENT OF CITIES SERVICE, W. ALTON JONES, WENT TO IRAN, TAKING WITH
HIM OTHER HIGH CITIES OFFICIALS WHO, AS EXPERTS, COULD HELP HIM
APPRAISE THE POSSIBILITIES OF OPERATING THE OLD IRANIAN PLANTS. 
PETITIONER WALDRON ALSO WENT ALONG.  THE INVESTIGATION IN IRAN WAS
MADE, BUT DURING THE TRIP, JONES MADE A SECRET SIDE-TRIP TO KUWAIT TO
PURSUE NEGOTIATIONS FOR BUYING OIL FROM GULF OIL, ONE OF THE ALLEGED
CONSPIRATORS.  JONES' ASSOCIATSE DID NOT ACCOMPANY HIM ON THIS TRIP TO
KUWAIT, AND CITIES MADE EVERY EFFORT TO CONCEAL THE SECRET VISIT FROM
PETITIONER.  IN FACT, AS LATE AS 1960, DURING THE COURSE OF THIS
LAWSUIT, CITIES CONTINUED TO DENY THAT JONES HAD EVER GONE TO KUWAIT
WHILE ON THE IRANIAN TRIP; THE FACT WAS NOT FINALLY REVEALED UNTIL 1964
WHEN PETITIONER WAS AT LAST PERMITTED TO QUESTION SOME OF THE CITIES
OFFICIALS WHO HAD BEEN INVOLVED IN THE IRANIAN TRIP.     AFTER THE TRIP
TO IRAN, CITIES OFFICIALS PREPARED A MEMORANDUM REPORTING FAVORABLY ON
THE PROSPECTS FOR USING IRANIAN OIL, BUT THEN IN OCTOBER 1952 CITIES
ABRUPTLY INFORMED WALDRON THAT IT HAD NO FURTHER INTEREST IN THE
IRANIAN OIL WHICH PETITIONER WAS OFFERING ON SUCH FAVORABLE TERMS.  THE
INTENSE PRESSURE TO WHICH CITIES WAS BEING SUBJECTED AT THIS TIME BY
THE MAJOR COMPANIES IS SUGGESTED BY AN INCIDENT THAT OCCURRED ONLY A
MONTH LATER AT THE ANNUAL CONVENTION OF THE AMERICAN PETROLEUM
INSTITUTE.  JONES, PRESIDENT OF CITIES, HAD BEEN SLATED TO RECEIVE THE
INSTITUTE'S GOLD MEDAL FOR BEING SELECTED OIL MAN OF THE YEAR, BUT AT
THE MEETINGS REPRESENTATIVES OF THE MAJOR COMPANIES THREATENED JONES
THAT THEY WOULD CUT OFF CITIES' SUPPLIES OF ITS SORELY NEEDED CRUDE OIL
IF HE DEALT FURTHER IN IRANIAN OIL, AND HE WAS NOT PRESENTED WITH THE
GOLD MEDAL.  THREE MONTHS LATER THE AGREEMENT BETWEEN CITIES AND GULF
FOR THE PURCHASE OF THE KUWAIT OIL WAS FORMALLY EXECUTED.  THE, AFTER
PETITIONER'S EFFORTS TO SELL THE IRANIAN OIL HAD COMPLETELY FAILED, THE
IRANIAN GOVERNMENT WAS FORCED TO AGREE TO TURN OVER THE NATIONALIZED
PROPERTIES TO A CONSORTIUM OF THE MAJOR OIL COMPANIES, AND CITIES WAS
GRANTED A SMALL SHARE IN THE CONSORTIUM. 

PETITIONER'S ANTITRUST COMPLAINT CHARGED THAT CITIES, WHICH
PREVIOUSLY HAD EAGERLY PURSUED THE PROSPECT OF PURCHASING IRANIAN OIL,
HAD CHANGED ITS VIEWS AND HAD FORGONE ITS CHANCE TO MAKE THE "BILLIONS"
THAT JONES HAD FORESEEN, IN ORDER TO GET THE KUWAIT OIL AND MEMBERSHIP
IN THE CONSORTIUM.  AFTER THE COMPLAINT WAS FILED, CITIES EXAMINED
PETITIONER AT LENGTH, AT THE SAME TIME GETTING THE COURT TO POSTPONE
ITS TIME FOR ANSWERING THE COMPLAINT UNTIL AFTER THESE EXAMINATIONS
COULD BE COMPLETED.  THEN CITIES FILED AFFIDAVITS CHARGING THAT
PETITIONER'S ALLEGATIONS ABOUT THE KUWAIT AND CONSORTIUM DEALS HAD NO
BASIS IN FACT AND MOVED FOR SUMMARY JUDGMENT.  THE COURT DEFERRED
RULING ON THE SUMMARY JUDGMENT MOTION BUT AT THE SAME TIME REFUSED TO
PERMIT PETITIONER TO OBTAIN GENERAL DISCOVERY TO ENABLE HIM TO PROVE
HIS CASE AGAINST CITIES; INSTEAD THE COURT AUTHORIZED A LIMITED
DISCOVERY RELATING ONLY TO THE KUWAIT PURCHASE AND THE CONSORTIUM
ARRANGEMENT; PETITIONER'S INQUIRY WAS ALSO SHARPLY LIMITED BOTH AS TO
THE SUBJECT MATTER AND THE TIME PERIOD OF ANY TRANSACTIONS THAT COULD
BE QUESTIONED.  AT THE SAME TIME THE COURT REFUSED TO PERMIT PETITIONER
TO TAKE THE DEPOSITION OF JONES AND THOSE OF HIS ASSOCIATES WHO HAD THE
GREATEST OPPORTUNITY TO KNOW THE REASONS FOR THE DRASTIC CHANGE IN
CITIES' ATTITUDE ON BUYING IRANIAN OIL.  THE COURT INSTEAD ORDERED THAT
ONLY GEORGE H. HILL, A CITIES VICE PRESIDENT WHO HAD NEVER MET
PETITIONER OR KNOWN ANYTHING ABOUT THE IRANIAN OIL DEAL BUT WHO HAD
BEEN IN CHARGE OF NEGOTIATING THE KUWAIT DEAL AND WHO HAD LED CITIES'
ATTEMPTS TO OBTAIN A SHARE IN THE CONSORTIUM, WOULD BE REQUIRED TO
ANSWER PETITIONER'S QUESTIONS. 

AFTER TAKING THE DEPOSITION OF HILL, PETITIONER FILED AN AMENDED
COMPLAINT WHICH ELIMINATED HIS SPECIFIC RELIANCE ON THE KUWAIT AND
CONSORTIUM DEALS AND STRESSED GENERALLY THAT CITIES' PARTICIPATION IN
THE CONSPIRACY HAD BEEN OBTAINED BY THREATS AND INDUCEMENTS FROM THE
PRINCIPAL CONSPIRATORS.  THE COURT AGAIN POSTPONED A RULING ON CITIES'
MOTION FOR SUMMARY JUDGMENT, AND ORDERED THAT PETITIONER BE PERMITTED
TO MAKE SOME FURTHER DISCOVERY, BUT ONCE AGAIN THE SCOPE OF DISCOVERY
PERMITTED TO PETITIONER WAS SHARPLY LIMITED.  IN ADDITION, CITIES'
PRESIDENT, JONES, HAD DIED DURING THE PERIOD WHEN PETITIONER WAS
RESTRICTED BY THE COURT'S ORDER TO TAKING ONLY THE DEPOSITION OF HILL,
AND THUS PETITIONER WAS NEVER ABLE TO QUESTION THE ONE MAN WHO WAS THE
CRUCIAL FIGURE IN THE ALLEGED IRANIAN TRANSACTIONS.  OF THE SEVEN OTHER
CITIES OFFICIALS WHO HAD BEEN INVOLVED IN THESE TRANSACTIONS, THREE HAD
ALSO DIED DURING THE LONG PERIOD IN WHICH THE COURT HAD STAYED
PETITIONER FROM TAKING THEIR DEPOSITIONS. 

IN SPITE OF THE FACT THAT PETITIONER HAD AMASSED CONSIDERABLE
EVIDENCE OF CITIES' LIABILITY, IN SPITE OF THE FACT THAT CITIES HAD
BEEN GIVEN UNRESTRICTED FREEDOM TO QUESTION PETITIONER WHILE PETITIONER
WAS BARRED FROM GETTING ANY INFORMATION AT ALL FROM CITIES EMPLOYEES
FAMILIAR WITH THE IRANIAN TRANSACTIONS, IN SPITE OF THE FACT THAT THE
DISCOVERY EVENTUALLY ALLOWED TO PETITIONER HAD BEEN SHARPLY RESTRICTED,
IN SPITE OF THE FACT THAT PETITIONER NEVER HAD AN OPPORTUNITY TO
QUESTION FOUR OF THE EIGHT CITIES OFFICIALS WHO HAD BEEN MOST
INTIMATELY CONNECTED WITH THE ALLEGED TRANSACTIONS, AND IN SPITE OF THE
FACT THAT CITIES HAD NEVER BEEN REQUIRED TO ANSWER THE ALLEGATIONS OF
THE COMPLAINT, THE COURT ENTERED SUMMARY JUDGMENT FOR CITIES IN
SEPTEMBER 1965.  38 F.R.D. 170 (1965).  THE COURT OF APPEALS, IN A
SHORT, UNINFORMATIVE OPINION, AFFIRMED THE DECISION OF THE DISTRICT
COURT.  361 F.2D 671 (C.A.2D CIR., 1966). 

        I. 

THE COURT'S ACTION IN AFFIRMING THIS JUDGMENT CANNOT POSSIBLY BE
RECONCILED WITH THIS COURT'S HOLDING IN POLLER V. COLUMBIA BROADCASTING
SYSTEM, SUPRA.  THERE THE COURT WARNED AGAINST USING SUMMARY JUDGMENTS
TO DECIDE COMPLEX ANTITRUST LITIGATION WHERE MOTIVE AND INTENT PLAY
LEADING ROLES.  THIS IS JUST SUCH A CASE.  ITS COMPLEXITY IS SUCH THAT
EVEN WITH A SUMMARY JUDGMENT IT TOOK 11 YEARS TO END IT.  LITERALLY
MONTHS AND YEARS WERE SPENT IN EXAMINAING PLAINTIFF, IN GETTING
AFFIDAVITS AND HOLDING NUMEROUS HEARINGS.  IT IS LITTLE LESS THAN
FARCICAL TO TREAT A CASE THAT EATS UP THAT MUCH TIME AS ONE SUITABLE
FOR A SUMMARY JUDGMENT.  IT CERTAINLY WOULD NOT HAVE TAKEN ONE-TENTH OF
THAT MUCH TIME TO GIVE THE CASE A FULL-DRESS TRIAL, WHERE SWORN
TESTIMONY BEFORE A JURY RATHER THAN AFFIDAVITS PRESENTED TO A JUDGE
COULD HAVE BEEN USED TO ADJUDICATE PLAINTIFF'S RIGHTS IN ACCORDANCE
WITH DUE PROCESS OF LAW.  AN EXCUSE FOR SUMMARY JUDGMENTS HAS ALWAYS
BEEN THAT THEY SAVE TIME.  IF THE TIME HAS COME WHEN THE BEST SPEED
RECORD THEY CAN MAKE IS TO TAKE 11 YEARS TO DECIDE ONE OF THEM, THE
IDEA OF SUMMARY JUDGMENTS AS TIME-SAVERS IS A SNARE AND DELUSION AND
THE BEST SERVICE THAT COULD BE RENDERED IN THIS FIELD WOULD BE TO
ABOLISH SUMMARY JUDGMENT PROCEDURES, ROOT AND BRANCH.  THE PLAIN FACT
IS THAT THIS CASE ILLUSTRATES THAT THE SUMMARY JUDGMENT TECHNIQUE
TEMPTS JUDGES TO TAKE OVER THE JURY TRIAL OF CASES, THUS DEPRIVING
PARTIES OF THEIR CONSTITUTIONAL RIGHT TO TRIAL BY JURY. 

IT SEEMS CLEAR TO ME THAT EVEN WITH PETITIONER'S VERY LIMITED
OPPORTUNITY TO GATHER EVIDENCE IN SUPPORT OF HIS CASE, THERE IS AMPLE
EVIDENCE IN THIS RECORD FROM WHICH A JURY COULD CONCLUDE THAT
RESPONDENT CITIES DID INDEED JOIN THE ALLEGED CONSPIRACY.  PETITIONER
ESTABLISHED THAT CITIES NEEDED MIDDLE EAST OIL, THAT HE WAS OFFERING
IRANIAN OIL ON VERY ATTRACTIVE TERMS, AND THAT CITIES HAD IN A NUMBER
OF WAYS MANIFESTED ITS CONSIDERABLE INTEREST IN PURCHASING THIS OIL. 
SUDDENLY, CITIES ANNOUNCED TO PETITIONER THAT IT DID NOT INTEND TO
PURSUE THE DEAL ANY FURTHER, AND IN FACT TOOK STEPS TO MAKE MORE
DIFFICULT PETITIONER'S EFFORTS TO SELL THE OIL TO OTHERS.  /2/  THIS
REFUSAL TO DEAL COULD OF COURSE BE EXPLAINED BY A NUMBER OF
MOTIVATIONS, BUT PETITIONER CONTENDS THAT THIS RECORD RAISES THE
SIGNIFICANT POSSIBILITY THAT CITIES ACTION WAS PREDOMINANTLY MOTIVATED
NOT BY LEGITIMATE BUSINESS CONSIDERATIONS BUT RATHER BY A DECISION TO
JOIN THE ALLEGED CONSPIRACY, INDUCED EITHER BY THREATS OF THE
CONSPIRATORS OR BY A PAYOFF IN THE FORM OF THE KUWAIT AND CONSORTIUM
DEALS.  THE COURT REJECTS EACH OF THESE THEORIES, ALTHOUGH FOR SHARPLY
CONTRASTING REASONS, AND CONCLUDES THAT DESPITE THE POSSIBLE
ILLEGITIMATE MOTIVIATIONS, EVIDENCE NOW IN THE RECORD SUGGESTS THAT
OTHER MOTIVATIONS WERE, IN THE COURT'S OPINION, MORE PROBABLE.  AS I
HAVE ALREADY INDICATED, I COULD NEVER ACCEPT THIS AS THE APPROPRIATE
STANDARD, UNDER POLLER, SUPRA, FOR DETERMINING WHETHER A DEFENDANT IN A
CASE SUCH AS THIS IS ENTITLED TO SUMMARY JUDGMENT. 

        II. 

THE COURT IN THIS CASE HAS DEPRIVED PLAINTIFF OF HIS RIGHT TO
DISCOVERY ON HIHGLY TECHNICAL AND WHOLLY INDEFENSIBLE GROUNDS.  THE
HEART OF THE COMPLAINT HERE WAS THAT CITIES SERVICE AND OTHERS
CONSPIRED TO BOYCOTT PLAINTIFF'S SALE OF IRANIAN OIL BY USE OF THREATS
AND MONOPOLY POWER IN VIOLATION OF THE ANTITRUST ACTS.  RULE 56(E)
COMPREHENSIVELY PROVIDES FOR THE USE OF DEPOSITIONS AND AFFIDAVITS, AND
RULE 56(F) PROVIDES THAT WHERE IT APPEARS THAT AFFIDAVITS ARE
UNAVAILABLE THE COURT MAY REFUSE THE APPLICATION FOR SUMMARY JUDGMENT,
OR MAY ORDER A CONTINUANCE TO PERMIT AFFIDAVITS TO BE OBTAINED, OR MAKE
SUCH OTHER ORDER AS IS JUST.  THUS IT APPEARS THAT THE RULES
CONTEMPLATE THAT A PARTY MAY NOT BE SHUT OFF FROM AN OPPORTUNITY TO GET
AFFIDAVITS TO GIVE HIM HIS DAY IN COURT.  NO JUDGE IS GRANTED POWER
UNDER RULE 56 OR ANY OTHER RULE TO COMPLETELY DENY A PARTY ALL
OPPORTUNITY TO TAKE DEPOSITIONS OR TO GET AFFIDAVITS ESSENTIALLY NEEDED
TO GET A FAIR TRIAL OF HIS CASE.  SUCH A COURSE OF CONDUCT CANNOT
POSSIBLY BE CALLED "JUST" WITHIN THE MEANING OF RULE 56(F), AND YET
HERE THIS PLAINTIFF, OVER A COURSE OF YEARS, REPEATEDLY PLEADED WITH
THE DISTRICT JUDGE FOR AN OPPORTUNITY TO EXAMINE JONES AND OTHER CITIES
SERVICE EMPLOYEES PARTICULARLY FAMILIAR WITH THE IRANIAN OIL DEAL IN
ORDER TO PRESENT FACTS HE HAD NO OTHER WAY TO OBTAIN.  OF COURSE, A
PARTY WHO IS SUING A COMPANY AND WHO IS DEPENDENT FOR PROOF ON COMPANY
EMPLOYEES MUST HAVE THE FORCE OF THE LAW BEHIND HIM OR HE CANNOT GET
TESTIMONY FROM SUCH EMPLOYEES AGAINST THEIR COMPANY.  THAT THE RULE
MAKERS DID NOT INTEND ANY SUCH BURDENS TO BE IMPOSED UPON DISCOVERY IS
ALSO SHOWN BY RULE 27, WHICH EVEN AUTHORIZES DEPOSITIONS TO BE TAKEN,
BEFORE ANY SUIT IS FILED, BY ANY PERSON WHO FEARS OR EXPECTS THAT HE
MAY BE A PARTY TO AN ACTION. 

THE EXCUSE GIVEN BY THE TRIAL COURT FOR CUTTING OFF PLAINTIFF'S
RIGHT TO DISCOVERY HERE WILL NOT HOLD WATER.  IT WAS THAT BY PLEADING
AT ONE TIME THAT THERE WERE TWO POSSIBLE REASONS FOR CITIES JOINING THE
CONSPIRACY TO BOYCOTT, HE WAS PERFORCE ETERNALLY BARRED FROM EXAMINING
THE DEFENDANTS ABOUT ANY REASONS OTHER THAN THOSE TWO IN ORDER TO GET
MORE COMPLETE INFORMATION AS TO WHY THEY CONSPIRED.  TO UPHOLD THIS
VIEW OF THE DISTRICT COURT IS TO TREAT A LAWSUIT AS A GAME IN WHICH THE
PARTY WHO GETS THERE FIRST WITH THE MOST QUESTIONS WINS THE GAME.  BUT
LAWSUITS ARE NOT GAMES.  THE END OF EACH ONE OF THEM, IF COURTS REMAIN
TRUE TO THE ANCIENT TRADITIONS OF JUSTICE, IS TO TRY EACH CASE IN A WAY
THAT PERMITS TRUTH TO TRIUMPH.  THAT HAS NOT BEEN DONE HERE.  THIS
PETITIONER WAS AND IS YET ENTITLED TO EXAMINE THE CITIES SERVICE
EMPLOYEES STILL LIVING WHO KNOW ABOUT THIS CASE.  LAW AND JUSTICE
REQUIRE IT.  TOO MUCH TIME HAS ALREADY BEEN WASTED IN AN EFFORT TO
PROVIDE A SUMMARY DISPOSITION OF A CASE THAT SHOULD NOT BE DISPOSED OF
THAT WAY. 

I WOULD REVERSE THE CASE AND DIRECT THAT IT GO TO TRAIL. 

/1/  THE ORIGINAL PLAINTIFF WALDRON, LIKE SEVERAL CRUCIAL WITNESSES
IN THIS CASE, IS DEAD AND THIS ACTION IS NOW BEING CARRIED ON BY HIS
EXECUTOR.  FOR THE SAKE CLARITY I WILL REFER TO THE ORIGINAL PLAINTIFF
WALDRON AS THE PETITIONER HERE. 

/2/  THUS, CITIES' PRESIDENT, JONES, INSTRUCTED AN ASSOCIATE TO CABLE
THE SECRETARY OF THE INTERIOR TO ADVISE THE UNITED STATES GOVERNMENT
AGAINST PURCHASING GASOLINE FROM PETITIONER FOR MILITARY USE.  ALTHOUGH
IN THE COURT'S VIEW THIS CABLE WAS "PRIMARILY" DESIGNED TO DISASSOCIATE
JONES FROM PETITIONER'S EFFORTS TO PROMOTE THE SALE, ANTE, AT 284, THIS
IS CERTAINLY A RATHER NARROW VIEW OF A CABLE THAT EXPLICITLY STATES, "I
SERIOUSLY QUESTION WISDOM OF SUCH ACTION."  IN ANY EVENT I CANNOT
UNDERSTAND HOW THIS COURT CAN JUSTIFY TAKING FROM THE JURY THE
RESPONSIBILITY FOR JUDGING THE PRIMARY PURPOSE AND EFFECT OF A PIECE OF
EVIDENCE SUCH AS THIS. 

WILLIAM E. KELLY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE DAVID ORLIN, PREBEN JENSEN, AND ALAN R. WENTZEL. 

SIMON H. RIFKIND ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS EDWARD N. COSTIKYAN. 
..END :












FOOD EMPLOYEES V. LOGAN PLAZA, 391 U.S. 308 


       AMALGAMATED FOOD EMPLOYEES UNION LOCAL 590 ET AL. V. LOGAN

           VALLEY PLAZA, INC., ET AL.

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

NO. 478.  ARGUED MARCH 14, 1968.-- DECIDED MAY 20, 1968. 


RESPONDENT WEIS MARKETS OWNS AND OPERATES A SUPERMARKET IN A LARGE
SHOPPING CENTER COMPLEX OWNED BY RESPONDENT LOGAN VALLEY PLAZA.  IN
FRONT OF WEIS' BUILDING IS A COVERED PORCH AND A PARCEL PICKUP ZONE. 
MEMBERS OF PETITIONER UNION PICKETED WEIS' STORE, CONFINING THE
PICKETING ALMOST ENTIRELY TO THE PARCEL PICKUP ZONE AND THE PORTION OF
THE PARKING AREA ADJACENT THERETO.  THE PICKETING WAS PEACEFUL WITH
SOME SPORADIC AND INFREQUENT CONGESTION OF THE PARCEL PICKUP AREA.  A
PENNSYLVANIA COURT OF COMMON PLEAS ENJOINED "PICKETING AND TRESPASSING
UPON . . . THE (WEIS) STOREROOM, PORCH AND PARCEL PICK-UP AREA . . .
(AND) THE (LOGAN) PARKING AREA," THUS PREVENTING PICKETING INSIDE THE
SHOPPING CENTER.  THAT COURT HELD THE INJUNCTION JUSTIFIED IN ORDER TO
PROTECT RESPONDENTS' PROPERTY RIGHTS AND BECAUSE THE PICKETING WAS
UNLAWFULLY AIMED AT COERCING WEIS TO COMPEL ITS EMPLOYEES TO JOIN A
UNION.  THE PENNSYLVANIA SUPREME COURT AFFIRMED THE ISSUANCE OF THE
INJUNCTION ON THE SOLE GROUND THAT PETITIONERS' CONDUCT CONSTITUTED A
TRESPASS ON RESPONDENTS' PROPERTY.  HELD: 

1.  PEACEFUL PICKETING CARRIED ON IN A LOCATION OPEN GENERALLY TO
THE PUBLIC IS, ABSENT OTHER FACTORS INVOLVING THE PURPOSE OR THE MANNER
OF THE PICKETING, PROTECTED BY THE FIRST AMENDMENT.  PP. 313-315. 

2.  ALTHOUGH THERE MAY BE REGULATION OF THE MANNER IN WHICH
HANDBILLING, OR PICKETING, IS CARRIED OUT, THAT DOES NOT MEAN THAT
EITHER CAN BE BARRED UNDER ALL CIRCUMSTANCES ON PUBLICLY OWNED PROPERTY
SIMPLY BY RECOURSE TO TRADITIONAL CONCEPTS OF PROPERTY LAW CONCERNING
THE INCIDENTS OF OWNERSHIP OF REAL PROPERTY.  PP. 315-316. 

3.  SINCE THE SHOPPING CENTER SERVES AS THE COMMUNITY BUSINESS BLOCK
"AND FREELY ACCESSIBLE AND OPEN TO THE PEOPLE IN THE AREA AND THOSE
PASSING THROUGH," MARSH V. ALABAMA, 326 U.S. 501, 508, THE STATE MAY
NOT DELEGATE THE POWER, THROUGH THE USE OF TRESPASS LAWS, WHOLLY TO
EXCLUDE THOSE MEMBERS OF THE PUBLIC WISHING TO EXERCISE THEIR FIRST
AMENDMENT RIGHTS ON THE PREMISES IN A MANNER AND FOR A PURPOSE
GENERALLY CONSONANT WITH THE USE TO WHICH THE PROPERTY IS ACTUALLY
PUT.  PP. 316-325. 

425 PA. 382, 227 A.2D 874, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER PEACEFUL PICKETING OF A
BUSINESS ENTERPRISE LOCATED WITHIN A SHOPPING CENTER CAN BE ENJOINED ON
THE GROUND THAT IT CONSTITUTES AN UNCONSENTED INVASION OF THE PROPERTY
RIGHTS OF THE OWNERS OF THE LAND ON WHICH THE CENTER IS SITUATED.  WE
GRANTED CERTIORARI TO CONSIDER PETITIONERS' CONTENTIONS THAT THE
DECISIONS OF THE STATE COURTS ENJOINING THEIR PICKETING AS A TRESPASS
ARE VIOLATIVE OF THEIR RIGHTS UNDER THE FIRST AND FOURTEENTH AMENDMENTS
OF THE UNITED STATES CONSTITUTION.  389 U.S. 911 (1967) /1/  .  WE
REVERSE. 

LOGAN VALLEY PLAZA, INC. (LOGAN), ONE OF THE TWO RESPONDENTS HEREIN,
OWNS A LARGE, NEWLY DEVELOPED SHOPPING CENTER COMPLEX, KNOWN AS THE
LOGAN VALLEY MALL, LOCATED NEAR THE CITY OF ALTOONA, PENNSYLVANIA.  THE
SHOPPING CENTER IS SITUATED AT THE INTERSECTION OF PLANK ROAD, WHICH IS
TO THE EAST OF THE CENTER, AND GOOD'S LANE, WHICH IS TO THE SOUTH. 
PLANK ROAD, ALSO KNOWN AS U.S. ROUTE 220, IS A HEAVILY TRAVELED HIGHWAY
ALONG WHICH TRAFFIC MOVES AT A FAIRLY HIGH RATE OF SPEED.  THERE ARE
FIVE ENTRANCE ROADS INTO THE CENTER, THREE FROM PLANK ROAD AND TWO FROM
GOOD'S LANE.  ASIDE FROM THESE FIVE ENTRANCES, THE SHOPPING CENTER IS
TOTALLY SEPARATED FROM THE ADJOINING ROADS BY EARTHEN BERMS.  THE BERMS
ARE 15 FEET WIDE ALONG GOOD'S LANE AND 12 FEET WIDE ALONG PLANK ROAD. 

AT THE TIME OF THE EVENTS IN THIS CASE, LOGAN VALLEY MALL WAS
OCCUPIED BY TWO BUSINESSES, WEIS MARKETS, INC. (WEIS), THE OTHER
RESPONDENT HEREIN, AND SEARS, ROEBUCK AND CO. (SEARS), ALTHOUGH OTHER
ENTERPRISES WERE THEN EXPECTED AND HAVE SINCE MOVED INTO THE CENTER. 
WEIS OPERATES A SUPERMARKET AND SEARS OPERATES BOTH A DEPARTMENT STORE
AND AN AUTOMOBILE SERVICE CENTER.  THE WEIS PROPERTY CONSISTS OF THE
ENCLOSED SUPERMARKET BUILDING, AN OPEN BUT COVERED PORCH ALONG THE
FRONT OF THE BUILDING, AND AN APPROXIMATELY FIVE-FOOT-WIDE PARCEL
PICKUP ZONE THAT RUNS 30 TO 40 FEET ALONG THE PORCH.  THE PORCH
FUNCTIONS AS A SIDEWALK IN FRONT OF THE BUILDING AND THE PICKUP ZONE IS
USED AS A TEMPORARY PARKING PLACE FOR THE LOADING OF PURCHASES INTO
CUSTOMERS' CARS BY WEIS EMPLOYEES. 

BETWEEN THE WEIS BUILDING AND THE HIGHWAY BERMS ARE EXTENSIVE
MACADAM PARKING LOTS WITH PARKING SPACES AND DRIVEWAYS LINED OFF
THEREON.  THESE AREAS, TO WHICH LOGAN RETAINS TITLE, PROVIDE COMMON
PARKING FACILITIES FOR ALL THE BUSINESSES IN THE SHOPPING CENTER.  THE
DISTANCE ACROSS THE PARKING LOTS TO THE WEIS STORE FROM THE ENTRANCES
ON GOOD'S LANE IS APPROXIMATELY 350 FEET AND FROM THE ENTRANCES ON
PLANK ROAD APPROXIMATELY 400 TO 500 FEET.  THE ENTRANCES ON PLANK ROAD
FARTHEST FROM THE WEIS PROPERTY IS THE MAIN ENTRANCE TO THE SHOPPING
CENTER AS A WHOLE AND IS REGULARLY USED BY CUSTOMERS OF WEIS.  THE
ENTRANCE ON PALNK NEAREST TO WEIS IS ALMOST EXCLUSIVELY USED BY PATRONS
OF THE SEARS AUTOMOBILE SERVICE STATION INTO WHICH IT LEADS DIRECTLY. 

ON DECEMBER 8, 1965, WEIS OPENED FOR BUSINESS, EMPLOYING A WHOLLY
NONUNION STAFF OF EMPLOYEES.  A FEW DAYS AFTER IT OPENED FOR BUSINESS,
WEIS POSTED A SIGN ON THE EXTERIOR OF ITS BUILDING PROHIBITING
TRESPASSING OR SOLICITING BY ANYONE OTHER THAN ITS EMPLOYEES ON ITS
PORCH OR PARKING LOT.  ON DECEMBER 17, 1965, MEMBERS OF AMALGAMATED
FOOD EMPLOYEES UNION, LOCAL 590, BEGAN PICKETING WEIS.  THEY CARRIED
SIGNS STATING THAT THE WEIS MARKET WAS NONUNION AND THAT ITS EMPLOYEES
WERE NOT "RECEIVING UNION WAGES OR OTHER UNION BENEFITS."  THE PICKETS
DID NOT INCLUDE ANY EMPLOYEES OF WEIS, BUT RATHER WERE ALL EMPLOYEES OF
COMPETITORS OF WEIS.  THE PICKETING CONTINUED UNTIL DECEMBER 27, DURING
WHICH TIME THE NUMBER OF PICKETS VARIED BETWEEN FOUR AND 13 AND
AVERAGED AROUND SIX.  THE PICKETING WAS CARRIED OUT ALMOST ENTIRELY IN
THE PARCEL PICKUP AREA AND THAT PORTION OF THE PARKING LOT IMMEDIATELY
ADJACENT THERETO.  ALTHOUGH SOME CONGESTION OF THE PARCEL PICKUP AREA
OCCURRED, SUCH CONGESTION WAS SPORADIC AND INFREQUENT.  /2/  THE
PICKETING WAS PEACEFUL AT ALL TIMES AND UNACCOMPANIED BY EITHER THREATS
OR VIOLENCE. 

ON DECEMBER 27, WEIS AND LOGAN INSTITUTED AN ACTION IN EQUITY IN THE
COURT OF COMMON PLEAS OF BLAIR COUNTY, AND THAT COURT IMMEDIATELY
ISSUED AN EX PARTE ORDER ENJOINING PETITIONERS /3/  FROM, INTER ALIA,
"(PICKETING AND TRESPASSING UPON * * * THE (WEIS) STOREROOM, PORCH AND
PARCEL PICK-UP AREA * * * (AND) THE (LOGAN) PARKING AREA AND ALL
ENTRANCES AND EXITS LEADING TO SAID PARKING AREA."  /4/  THE EFFECT OF
THIS ORDER WAS TO REQUIRE THAT ALL PICKETING BE CARRIED ON ALONG THE
BERMS BESIDE THE PUBLIC ROADS OUTSIDE THE SHOPPING CENTER.  PICKETING
CONTINUED ALONG THE BERMS AND, IN ADDITION, HANDBILLS ASKING THE PUBLIC
NOT TO PATRONIZE WEIS BECAUSE IT WAS NONUNION WERE DISTRIBUTED, WHILE
PETITIONERS CONTESTED THE VALIDITY OF THE EX PARTE INJUNCTION.  AFTER
AN EVIDENTIARY HEARING, WHICH RESULTED IN THE ESTABLISHMENT OF THE
FACTS SET FORTH ABOVE, THE COURT OF COMMON PLEAS CONTINUED INDEFINITELY
ITS ORIGINAL EX PARTE INJUNCTION WITHOUT MODIFICATION.  /5/ 

THAT COURT EXPLICITLY REJECTED PETITIONERS' CLAIM UNDER THE FIRST
AMENDMENT THAT THEY WERE ENTITLED TO PICKET WITHIN THE CONFINES OF THE
SHOPPING CENTER, AND THEIR CONTENTION THAT THE SUIT WAS WITHIN THE
PRIMARY JURISDICTION OF THE NLRB.  THE TRIAL JUDGE HELD THAT THE
INJUNCTION WAS JUSTIFIED BOTH IN ORDER TO PROTECT RESPONDENTS' PROPERTY
RIGHTS AND BECAUSE THE PICKETING WAS UNLAWFULLY AIMED AT COERCING WEIS
TO COMPEL ITS EMPLOYEES TO JOIN A UNION.  ON APPEAL THE PENNSYLVANIA
SUPREME COURT, WITH THREE JUSTICES DISSENTING, AFFIRMED THE ISSUANCE OF
THE INJUNCTION ON THE SOLE GROUND THAT PETITIONERS' CONDUCT CONSTITUTED
A TRESPASS ON RESPONDENTS'  PROPERTY.  /6/ 

WE START FROM THE PREMISE THAT PEACEFUL PICKETING CARRIED ON IN A
LOCATION OPEN GENERALLY TO THE PUBLIC IS, ABSENT OTHER FACTORS
INVOLVING THE PURPOSE OR MANNER OF THE PICKETING, PROTECTED BY THE
FIRST AMENDMENT.  THORNHILL V. ALABAMA, 310 U.S. 88 (1940); AFL V.
SWING, 312 U.S. 321 (1941); BAKERY DRIVERS LOCAL 802 V. WOHL, 315 U.S.
769 (1942); TEAMSTERS LOCAL 795 V. NEWELL, 356 U.S. 341 (1958).  TO BE
SURE, THIS COURT HAS NOTED THAT PICKETING INVOLVES ELEMENTS OF BOTH
SPEECH AND CONDUCT, I.E., PATROLLING, AND HAS INDICATED THAT BECAUSE OF
THIS INTERMINGLING OF PROTECTED AND UNPROTECTED ELEMENTS, PICKETING CAN
BE SUBJECTED TO CONTROLS THAT WOULD NOT BE CONSTITUTIONALLY PERMISSIBLE
IN THE CASE OF PURE SPEECH.  SEE, E.G., HUGHES V. SUPERIOR COURT, 339
U.S. 460 (1950); INTERNATIONAL BRO. OF TEAMSTERS V. VOGT, INC., 354
U.S. 284 (1957); COX V. LOUISIANA, 379 U.S. 559 (1965); CAMERON V.
JOHNSON, 390 U.S. 611.  NEVERTHELESS, NO CASE DECIDED BY THIS COURT CAN
BE FOUND TO SUPPORT THE PROPOSITION THAT THE NONSPEECH ASPECTS OF
PEACEFUL PICKETING ARE SO GREAT AS TO RENDER THE PROVISIONS OF THE
FIRST AMENDMENT INAPPLICABLE TO IT ALTOGETHER. 

THE MAJORITY OF THE CASES FROM THIS COURT RELIED ON BY RESPONDENTS,
IN SUPPORT OF THEIR CONTENTION THAT PICKETING CAN BE SUBJECTED TO A
BLANKET PROHIBITION IN SOME INSTANCES BY THE STATES, INVOLVED PICKETING
THAT WAS FOUND EITHER TO HAVE BEEN DIRECTED AT AN ILLEGAL END, E.G.,
GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490 (1949); BUILDING
SERVICE EMPLOYEES LOCAL 262 V. GAZZAM, 339 U.S. 532 (1950); PLUMBERS
LOCAL 10 V. GRAHAM, 345 U.S. 192 (1953), OR TO HAVE BEEN DIRECTED AT
COERCING A DECISION BY AN EMPLOYER WHICH, ALTHOUGH IN ITSELF LEGAL,
COULD VALIDLY BE REQUIRED BY THE STATE TO BE LEFT TO THE EMPLOYER'S
FREE CHOICE, E.G., CARPENTERS LOCAL 213 V. RITTER'S CAFE, 315 U.S. 722
(1942) (SECONDARY BOYCOTT); TEAMSTERS LOCAL 309 V. HANKE, 339 U.S. 470
(1950) (SELF-EMPLOYER UNION SHOP).  COMPARE NLRB V. DENVER BLDG. &
CONST. TRADES COUNCIL, 341 U.S. 675 (1951), AND INTERNATIONAL BRO. OF
ELECTRICAL WORKERS V. NLRB, 341 U.S. 694 (1951). 

THOSE CASES ARE NOT APPLICABLE HERE BECAUSE THEY ALL TURNED ON THE
PURPOSE FOR WHICH THE PICKETING WAS CARRIED ON, NOT ITS LOCATION.  IN
THIS CASE THE PENNSYLVANIA SUPREME COURT SPECIFICALLY DISAVOWED
RELIANCE ON THE FINDING OF UNLAWFUL PURPOSE ON WHICH THE TRIAL COURT
ALTERNATIVELY BASED ITS ISSUANCE OF THE INJUNCTION.  /7/  IT DID
EMPHASIZE THAT THE PICKETS WERE NOT EMPLOYEES OF WEIS AND WERE
DISCOURAGING THE PUBLIC FROM PATRONIZING THE WEIS MARKET.  HOWEVER,
THOSE FACTS COULD IN NO WAY PROVIDE A CONSTITUTIONALLY PERMISSIBLE
INDEPENDENT BASIS FOR THE DECISION BECAUSE THIS COURT HAS PREVIOUSLY
SPECIFICALLY HELD THAT PICKETING OF A BUSINESS ENTERPRISE CANNOT BE
PROHIBITED ON THE SOLE GROUND THAT IT IS CONDUCTED BY PERSONS NOT
EMPLOYEES WHOSE PURPOSE IS TO DISCOURAGE PATRONAGE OF THE BUSINESS. 
AFL V. SWING, 312 U.S. 321 (1941).  COMPARE BAKERY DRIVERS LOCAL 802 V.
WOHL, 315 U.S. 769 (1942).  RATHER, THOSE FACTORS MERELY SUPPORTED THE
COURT'S FINDING OF A TRESPASS BY DEMONSTRATING THAT THE PICKETING TOOK
PLACE WITHOUT THE CONSENT, AND AGAINST THE WILL, OF RESPONDENTS. 

THE CASE SQUARELY PRESENTS, THEREFORE, THE QUESTION WHETHER
PENNSYLVANIA'S GENERALLY VALID RULES AGAINST TRESPASS TO PRIVATE
PROPERTY CAN BE APPLIED IN THESE CIRCUMSTANCES TO BAR PETITIONERS FROM
THE WEIS AND LOGAN PREMISES.  IT IS CLEAR THAT IF THE SHOPPING CENTER
PREMISES WERE NOT PRIVATELY OWNED BUT INSTEAD CONSTITUTED THE BUSINESS
AREA OF A MUNICIPALITY, WHICH THEY TO A LARGE EXTENT RESEMBLE,
PETITIONERS COULD NOT BE BARRED FROM EXERCISING THEIR FIRST AMENDMENT
RIGHTS THERE ON THE SOLE GROUND THAT TITLE TO THE PROPERTY WAS IN THE
MUNICIPALITY.  LOVELL V. GRIFFIN, 303 U.S. 444 (1938); HAGUE V. CI0,
307 U.S. 496 (1939); SCHNEIDER V. STATE, 308 U.S. 147 (1939); JAMISON
V. TEXAS, 318 U.S. 413 (1943).  THE ESSENCE OF THOSE OPINIONS IS THAT
STREETS SIDEWALKS, PARKS, AND OTHER SIMILAR PUBLIC PLACES ARE SO
HISTORICALLY ASSOCIATED WITH THE EXERCISE OF FIRST AMENDMENT RIGHTS
THAT ACCESS TO THEM FOR THE PURPOSE OF EXERCISING SUCH RIGHTS CANNOT
CONSTITUTIONALLY BE DENIED BROADLY AND ABSOLUTELY. 

THE FACT THAT LOVELL, SCHNEIDER, AND JAMISON WERE CONCERNED WITH
HANDBILLING RATHER THAN PICKETING IS IMMATERIAL SO FAR AS THE QUESTION
IS SOLELY ONE OF RIGHT OF ACCESS FOR THE PURPOSE OF EXPRESSION OF
VIEWS.  HANDBILLING, LIKE PICKETING, INVOLVES CONDUCT OTHER THAN
SPEECH, NAMELY, THE PHYSICAL PRESENCE OF THE PERSON DISTRIBUTING
LEAFLETS ON MUNICIPAL PROPERTY.  IF TITLE TO MUNICIPAL PROPERTY IS,
STANDING ALONE, AN INSUFFICIENT BASIS FOR PROHIBITING ALL ENTRY ONTO
SUCH PROPERTY FOR THE PURPOSE OF DISTRIBUTING PRINTED MATTER, IT IS
LIKEWISE AN INSUFFICIENT BASIS FOR PROHIBITING ALL ENTRY FOR THE
PURPOSE OF CARRYING AN INFORMATIONAL PLACARD.  WHILE THE PATROLLING
INVOLVED IN PICKETING MAY IN SOME CASES CONSTITUTE AN INTERFERENCE WITH
THE USE OF PUBLIC PROPERTY GREATER THAN THAT PRODUCED BY HANDBILLING,
IT IS CLEAR THAT IN OTHER CASES THE CONVERSE MAY BE TRUE.  OBVIOUSLY, A
FEW PERSONS WALKING SLOWLY BACK AND FORTH HOLDING PLACARDS CAN BE LESS
OBSTRUCTIVE OF, FOR EXAMPLE, A PUBLIC SIDEWALK THAN NUMEROUS PERSONS
MILLING AROUND HANDING OUT LEAFLETS.  THAT THE MANNER IN WHICH
HANDBILLING, PICKETING, IS CARRIED OUT MAY BE REGULATED DOES NOT MEAN
THAT EITHER CAN BE BARRED UNDER ALL CIRCUMSTANCES ON PUBLICLY OWNED
PROPERTY SIMPLY BY RECOURSE TO TRADITIONAL CONCEPTS OF PROPERTY LAW
CONCERNING THE INCIDENTS OF OWNERSHIP OF REAL PROPERTY. 

THIS COURT HAS ALSO HELD, IN MARSH V. ALABAMA, 326 U.S. 501 (1946),
THAT UNDER SOME CIRCUMSTANCES PROPERTY THAT IS PRIVATELY OWNED MAY, AT
LEAST FOR FIRST AMENDMENT PURPOSES, BE TREATED AS THOUGH IT WERE
PUBLICLY HELD.  IN MARSH, THE APPELLANT, A JEHOVAH'S WITNESS, HAD
UNDERTAKEN TO DISTRIBUTE RELIGIOUS LITERATURE ON A SIDEWALK IN THE
BUSINESS DISTRICT OF CHICKASAW, ALABAMA.  CHICKASAW, A SO-CALLED
COMPANY TOWN, WAS WHOLLY OWNED BY THE GULF SHIPBUILDING CORPORATION. 
"THE PROPERTY CONSISTS OF RESIDENTIAL BUILDINGS, STREETS, A SYSTEM OF
SEWERS, A SEWAGE DISPOSAL PLANT AND A 'BUSINSS BLOCK' ON WHICH BUSINESS
PLACES ARE SITUATED . . . (THE RESIDENTS USE THE BUSINESS BLOCK AS
THEIR REGULAR SHOPPING CENTER.  TO DO SO, THEY NOW, AS THEY HAVE FOR
MANY YEARS, MAKE USE OF A COMPANY-OWNED PAVED STREET AND SIDEWALK
LOCATED ALONGSIDE THE STORE FRONTS IN ORDER TO ENTER AND LEAVE THE
STORES AND THE POST OFFICE.  INTERSECTING COMPANY-OWNED ROADS AT EACH
END OF THE BUSINESS BLOCK LEAD INTO A FOUR-LANE PUBLIC HIGHWAY WHICH
RUNS PARALLEL TO THE BUSINESS BLOCK AT A DISTANCE OF THIRTY FEET. 
THERE IS NOTHING TO STOP HIGHWAY TRAFFIC FROM COMING ONTO THE BUSINESS
BLOCK AND UPON ARRIVAL A TRAVELER MAY MAKE FREE USE OF THE FACILITIES
AVAILABLE THERE.  IN SHORT THE TOWN AND ITS SHOPPING DISTRICT ARE
ACCESSIBLE TO AND FREELY USED BY THE PUBLIC IN GENERAL AND THERE IS
NOTHING TO DISTINGUISH THEM FROM ANY OTHER TOWN AND SHOPPING CENTER
EXCEPT THE FACT THAT THE TITLE TO THE PROPERTY BELONGS TO A PRIVATE
CORPORATION."  326 U.S.,AT 502-503. 

THE CORPORATION HAD POSTED NOTICES IN THE STORES STATING THAT THE
PREMISES WERE PRIVATE PROPERTY AND THAT NO SOLICITATION OF ANY KIND
WITHOUT WRITTEN PERMISSION WOULD BE PERMITTED.  APPELLANT MARSH WAS
TOLD THAT SHE MUST HAVE A PERMIT TO DISTRIBUTE HER LITERATURE AND THAT
A PERMIT WOULD NOT BE GRANTED TO HER.  WHEN SHE DECLARED THAT THE
COMPANY RULE COULD NOT BE UTILIZED TO PREVENT HER FROM EXERCISING HER
CONSTITUTIONAL RIGHTS UNDER THE FIRST AMENDMENT, SHE WAS ORDERED TO
LEAVE CHICKASAW.  SHE REFUSED TO DO SO AND WAS ARRESTED FOR VIOLATING
ALABAMA'S CRIMINAL TRESPASS STATUTE.  IN REVERSING HER CONVICTION UNDER
THE STATUTE, THIS COURT HELD THAT THE FACT THAT THE PROPERTY FROM WHICH
APPELLANT WAS SOUGHT TO BE EJECTED FOR EXERCISING HER FIRST AMENDMENT
RIGHTS WAS OWNED BY A PRIVATE CORPORATION RATHER THAN THE STATE WAS AN
INSUFFICIENT BASIS TO JUSTIFY THE INFRINGEMENT ON APPELLANT'S RIGHT TO
FREE EXPRESSION OCCASIONED THEREBY.  LIKEWISE THE FACT THAT APPELLANT
MARSH WAS HERSELF NOT A RESIDENT OF THE TOWN WAS NOT CONSIDERED
MATERIAL.     THE SIMILARITIES BETWEEN THE BUSINESS BLOCK IN MARSH AND
THE SHOPPING CENTER IN THE PRESENT CASE ARE STRIKING.  THE PERIMETER OF
LOGAN VALLEY MALL IS A LITTLE LESS THAN 1.1 MILES.  INSIDE THE MALL
WERE SITUATED, AT THE TIME OF TRIAL, TWO SUBSTANTIAL COMMERCIAL
ENTERPRISES WITH NUMEROUS OTHERS SOON TO FOLLOW.  /8/  IMMEDIATELY
ADJACENT TO THE MALL ARE TWO ROADS, ONE OF WHICH IS A HEAVLY TRAVELED
STATE HIGHWAY AND FROM BOTH OF WHICH LEAD ENTRANCES DIRECTLY INTO THE
MALL.  ADJOINING THE BUILDINGS IN THE MIDDLE OF THE MALL ARE SIDEWALKS
FOR THE USE OF PEDESTRIANS GOING TO AND FROM THEIR CARS AND FROM
BUILDING TO BUILDING.  IN THE PARKING AREAS, ROADWAYS FOR THE USE OF
VEHICULAR TRAFFIC ENTERING AND LEAVING THE MALL ARE CLEARLY MARKED
OUT.  THE GENERAL PUBLIC HAS UNRESTRICTED ACCESS TO THE MALL PROPERTY. 
THE SHOPPING CENTER HERE IS CLEARLY THE FUNCTIONAL EQUIVALENT OF THE
BUSINESS DISTRICT OF CHICKASAW INVOLVED IN MARSH. 

IT IS TRUE THAT, UNLIKE THE CORPORATION IN MARSH, THE RESPONDENTS
HERE DO NOT OWN THE SURROUNDING RESIDENTIAL PROPERTY AND DO NOT PROVIDE
MUNICIPAL SERVICES THEREFOR.  PRESUMABLY, PETITIONERS ARE FREE TO
CANVASS THE NEIGHBORHOOD WITH THEIR MESSAGE ABOUT THE NONUNION STATUS
OF WEIS MARKET, JUST AS THEY HAVE BEEN PERMITTED BY THE STATE COURTS TO
PICKET ON THE BERMS OUTSIDE THE MALL.  THUS, UNLIKE THE SITUATION IN
MARSH, THERE IS NO POWER ON RESPONDENTS' PART TO HAVE PETITIONERS
TOTALLY DENIED ACCESS TO THE COMMUNITY FOR WHICH THE MALL SERVES AS A
BUSINESS DISTRICT.  THIS FACT, HOWEVER, IS NOT DETERMINATIVE.  IN MARSH
ITSELF THE PRECISE ISSUE PRESENTED WAS WHETHER THE APPELLANT THEREIN
HAD THE RIGHT, UNDER THE FIRST AMENDMENT, TO PASS OUT LEAFLETS IN THE
BUSINESS DISTRICT,SINCE THERE WAS NO SHOWING MADE THERE THAT THE
CORPORATE OWNER WOULD HAVE SOUGHT TO PREVENT THE DISTRIBUTION OF
LEAFLETS IN THE RESIDENTIAL AREAS OF THE TOWN.  WHILE IT IS PROBABLE
THAT THE POWER TO PREVENT TRESPASS BROADLY CLAIMED IN MARSH WOULD HAVE
ENCOMPASSED SUCH AN INCURSION INTO THE RESIDENTIAL AREAS, THE SPECIFIC
FACTS IN THE CASE INVOLVED ACCESS TO PROPERTY USED FOR COMMERCIAL
PURPOSES. 

WE SEE NO REASON WHY ACCESS TO A BUSINESS DISTRICT IN A COMPANY TOWN
FOR THE PURPOSE OF EXERCISING FIRST AMENDMENT RIGHTS SHOULD BE
CONSTITUTIONALLY REQUIRED, WHILE ACCESS FOR THE SAME PURPOSE TO
PROPERTY FUNCTIONING AS A BUSINESS DISTRICT SHOULD BE LIMITED SIMPLY
BECAUSE THE PROPERTY SURROUNDING THE "BUSINESS DISTRICT" IS NOT UNDER
THE SAME OWNERSHIP.  HERE THE ROADWAYS PROVIDED FOR VEHICULAR MOVEMENT
WITHIN THE MALL AND THE SIDEWALKS LEADING FROM BUILDING TO BUILDING ARE
THE FUNCTIONAL EQUIVALENTS OF THE STREETS AND SIDEWALKS OF A NORMAL
MUNICIPAL BUSINESS DISTRICT.  THE SHOPPING CENTER PREMISES ARE OPEN TO
THE PUBLIC TO THE SAME EXTENT AS THE COMMERCIAL CENTER OF A NORMAL
TOWN.  SO FAR AS CAN BE DETERMINED, THE MAIN DISTINCTION IN PRACTICE
BETWEEN USE BY THE PUBLIC OF THE LOGAN VALLEY MALL AND OF ANY OTHER
BUSINESS DISTRICT, WERE THE DECISIONS OF THE STATE COURTS TO STAND,
WOULD BE THAT THOSE MEMBERS OF THE GENERAL PUBLIC WHO SOUGHT TO USE THE
MALL PREMISES IN A MANNER CONTRARY TO THE WISHES OF THE RESPONDENTS
COULD BE PREVENTED FROM SO DOING. 

SUCH A POWER ON THE PART OF THE RESPONDENTS WOULD BE, OF COURSE,
PART AND PARCEL OF THE RIGHTS TRADITIONALLY ASSOCIATED WITH OWNERSHIP
OF PRIVATE PROPERTY.  AND IT MAY WELL BE THAT RESPONDENTS' OWNERSHIP OF
THE PROPERTY HERE IN QUESTION GIVES THEM VARIOUS RIGHTS, UNDER THE LAWS
OF PENNSYLVANIA, TO LIMIT THE USE OF THAT PROPERTY BY MEMBERS OF THE
PUBLIC IN A MANNER THAT WOULD NOT BE PERMISSIBLE WERE THE PROPERTY
OWNED BY A MUNICIPALITY.  ALL WE DECIDE HERE IS THAT BECAUSE THE
SHOPPING CENTER SERVES AS THE COMMUNITY BUSINESS BLOCK "AND IS FREELY
ACCESSIBLE AND OPEN TO THE PEOPLE IN THE AREA AND THOSE PASSING
THROUGH," MARSH V. ALABAMA, 326 U.S.,AT 508, THE STATE MAY NOT DELEGATE
THE POWER, THROUGH THE USE OF ITS TRESPASS LAWS, WHOLLY TO EXCLUDE
THOSE MEMBERS OF THE PUBLIC WISHING TO EXERCISE THEIR FIRST AMENDMENT
RIGHTS ON THE PREMISES IN A MANNER AND FOR.A PURPOSE GENERALLY
CONSONANT WITH THE USE TO WHICH THE PROPERTY IS ACTUALLY PUT.  /9/ 

WE DO NOT HOLD THAT RESPONDENTS, AND AT THEIR BEHEST THE STATE, ARE
WITHOUT POWER TO MAKE REASONABLE REGULATIONS GOVERNING THE EXERCISE OF
FIRST AMENDMENT RIGHTS ON THEIR PROPERTY.  CERTAINLY THEIR RIGHTS TO
MAKE SUCH REGULATIONS ARE AT THE VERY LEAST CO-EXTENSIVE WITH THE
POWERS POSSESSED BY STATES AND MUNICIPALITIES, AND RECOGNIZED IN MANY
OPINIONS OF THIS COURT, TO CONTROL THE USE OF PUBLIC PROPERTY.  THUS
WHERE PROPERTY IS NOT ORDINARILY OPEN TO THE PUBLIC, THIS COURT HAS
HELD THAT ACCESS TO IT FOR THE PURPOSE OF EXERCISING FIRST AMENDMENT
RIGHTS MAY BE DENIED ALTOGETHER.  SEE ADDERLEY V. FLORIDA, 385 U.S. 39
(1966).  EVEN WHERE MUNICIPAL OR STATE PROPERTY IS OPEN TO THE PUBLIC
GENERALLY, THE EXERCISE OF FIRST AMENDMENT RIGHTS MAY BE REGULATED SO
AS TO PREVENT INTERFERENCE WITH THE USE TO WHICH THE PROPERTY IS
ORDINARILY PUT BY THE STATE.  THUS WE HAVE UPHELD A STATUTE PROHIBITING
PICKETING "IN SUCH A MANNER AS TO OBSTRUCT OR UNREASONABLY INTERFERE
WITH FREE INGRESS OR EGRESS TO AND FROM ANY . . . COUNTY . . .
COURTHOUSES."  CAMERON V. JOHNSON, 390 U.S. 611, 616.  LIKEWISE IT HAS
BEEN INDICATED THAT PERSONS COULD BE CONSTITUTIONALLY PROHIBITED FROM
PICKETING "IN OR NEAR" A COURT "WITH THE INTENT OF INTERFERING WITH,
OBSTRUCTING, OR IMPEDING THE ADMINISTRATION OF JUSTICE."  COX V.
LOUISIANA, 379 U.S. 559 (1965). 

IN ADDITION, THE EXERCISE OF FIRST AMENDMENT RIGHTS MAY BE REGULATED
WHERE SUCH EXERICSE WILL UNDLY INTERFERE WITH THE NORMAL USE OF THE
PUBLIC PROPERTY BY OTHER MEMBERS OF THE PUBLIC WITH AN EQUAL RIGHT OF
ACCESS TO IT.  THUS IT HAS BEEN HELD THATPERSONS DESIRING TO PARADE
ALONG CITY STREETS MAY BE REQUIRED TO SECURE A PERMIT IN ORDER THAT
MUNICIPAL AUTHORITIES BE ABLE TO LIMIT THE AMOUNT OF INTERFERENCE WITH
USE OF THE SIDEWALKS BY OTHER MEMBERS OF THE PUBLIC BY REGULATING THE
TIME, PLACE, AND MANNER OF THE PARADE.  COX V. NEW HAMPSHIRE, 312 U.S.
569 (1941); POULOS V. NEW HAMPSHIRE, 345 U.S. 395 (1953).  COMPARE
KOVACS V. COOPER, 336 U.S. 77 (1949) (USE OF SOUND TRUCKS MAKING "LOUD
AND RAUCOUS NOISES" ON PUBLIC STREETS MAY BE PROHIBITED). 

HOWEVER, NONE OF THESE CASES IS APPLICABLE TO THE PRESENT CASE. 
BECAUSE THE PENNSYLVANIA COURTS HAVE HELD THAT "PICKETING AND
TRESPASSING" CAN BE PROHIBITED ABSOLUTELY ON RESPONDENTS' PREMISES, WE
HAVE NO OCCASION TO CONSIDER THE EXTENT TO WHICH RESPONDENTS ARE
ENTITLED TO LIMIT THE LOCATION AND MANNER OF THE PICKETING OR THE
NUMBER OF PICKETS WITHIN THE MALL IN ORDER TO PREVENT INTERFERENCE WITH
EITHER ACCESS TO THE MARKET BUILDING OR VEHICULAR USE OF THE PARCEL
PICKUP AREA AND PARKING LOT.  /10/  LIKEWISE, ADDERLEY FURNISHES NO
SUPPORT FOR THE DECISION BELOW BECAUSE IT IS CLEAR THAT THE PUBLIC HAS
VIRTUALLY UNRESTRICTED ACCESS TO THE PROPERTY AT ISSUE HERE. 
RESPONDENTS SEEK TO DEFEND THE INJUNCTION THEY HAVE OBTAINED BY
CHARACTERIZING THE REQUIREMENT THAT PICKETING BE CARRIED ON OUTSIDE THE
LOGAN MALL PRESMISES AS A REGULATION RATHER THAN A SUPPRESSION OF IT.
ACCEPTING ARGUENDO SUCH A CHARACTERIZATION, THE QUESTION REMAINS, UNDER
THE FIRST AMENDMENT, WHETHER IT IS A PERMISSIBLE REGULATION. 

PETITIONERS' PICKETING WAS DIRECTED SOLELY AT ONE ESTABLISHMENT
WITHIN THE SHOPPING CENTER.  THE BERMS SURROUNDING THE CENTER ARE FROM
350 TO 500 FEET AWAY FROM THE WEIS STORE.  ALL ENTRY ONTO THE MALL
PREMISES BY CUSTOMERS OF WEIS, SO FAR AS APPEARS, IS BY VEHICLE FROM
THE ROADS ALONGSIDE WHICH THE BERMS RUN.  THUS THE PLACARDS BEARING THE
MESSAGE WHICH PETITIONERS SEEK TO COMMUNICATE TO PATRONS OF WEIS MUST
BE READ BY THOSE TO WHOM THEY ARE DIRECTED EITHER AT A DISTANCE SO
GREAT AS TO RENDER THEM VIRTUALLY INDECIPHERABLE-- WHERE THE WEIS
CUSTOMERS ARE ALREADY WITHIN THE MALL-- OR WHILE THE PROSPECTIVE READER
IS MOVING BY CAR FROM THE ROADS ONTO THE MALL PARKING AREAS VIA THE
ENTRANCE WAYS CUT THROUGH THE BERMS.  IN ADDITION, THE PICKETS ARE
PLACED IN SOME DANGER BY BEING FORCED TO WALK ALONG HEAVILY TRAVELED
ROADS ALONG WHICH TRAFFIC MOVES CONSTANTLY AT RATES OF SPEED VARYING
FROM MODERATE TO HIGH.  LIKEWISE, THE TASK OF DISTRIBUTING HANDBILLS TO
PERSONS IN MOVING AUTOMOBILES IS VASTLY GREATER (AND MORE HAZARDOUS)
THAN IT WOULD BE WERE PETITIONERS PERMITTED TO PASS THEM OUT WITHIN THE
MALL TO PEDESTRIANS.  /11/  FINALLY, THE REQUIREMENT THAT THE PICKETING
TAKE PLACE OUTSIDE THE SHOPPING CENTER RENDERS IT VERY DIFFICULT FOR
PETITIONERS TO LIMIT ITS EFFECT TO WEIS ONLY.  /12/ 

IT IS THEREFORE CLEAR THAT THE RESTRAINTS ON PICKETING AND
TRESPASSING APPROVED BY THE PENNSYLVANIA COURTS HERE SUBSTANTIALLY
HINDER THE COMMUNICATION OF THE IDEAS WHICH PETITIONERS SEEK TO EXPRESS
TO THE PATRONS OF WEIS.  THE FACT THAT THE NONSPEECH ASPECTS OF
PETITIONERS' ACTIVITY ARE ALSO RENDERED LESS EFFECTIVE IS NOT
PARTICULARLY COMPELLING IN LIGHT OF THE ABSENCE OF ANY SHOWING, OR
RELIANCE BY THE STATE COURTS THEREON, THAT THE PATROLLING ACCOMPANYING
THE PICKETING SOUGHT TO BE CARRIED ON WAS SIGNIFICANTLY INTERFERING
WITH THE USE TO WHICH THE MALL PROPERTY WAS BEING PUT BY BOTH
RESPONDENTS AND THE GENERAL PUBLIC.  /13/  AS WE OBSERVED EARLIER, THE
MERE FACT THAT SPEECH IS ACCOMPANIED BY CONDUCT DOES NOT MEAN THAT THE
SPEECH CAN BE SUPPRESSED UNDER THE GUISE OF PROHIBITING THE CONDUCT. 
HERE IT IS PERFECTLY CLEAR THAT A PROHIBITION AGAINST TRESPASS ON THE
MALL OPERATES TO BAR ALL SPEECH WITHIN THE SHOPPING CENTER TO WHICH
RESPONDENTS OBJECT.  YET THIS COURT STATED MANY YEARS AGO, "(ONE IS NOT
TO HAVE THE EXERCISE OF HIS LIBERTY OF EXPRESSION IN APPROPRIATE PLACES
ABRIDGED ON THE PLEA THAT IT MAY BE EXERCISED IN SOME OTHER PLACE." 
SCHNEIDER V. STATE, 308 U.S. 147, 163 (1939). 

THE SOLE JUSTIFICATION OFFERED FOR THE SUBSTANTIAL INTERFERENCE WITH
THE EFFECTIVENESS OF PETITIONERS' EXERCISE OF THEIR FIRST AMENDMENT
RIGHTS TO PROMULGATE THEIR VIEWS THROUGH HANDBILLING AND PICKETING IS
RESPONDENTS' CLAIMED ASBOLUTE RIGHT UNDER STATE LAW TO PROHIBIT ANY USE
OF THEIR PROPERTY BY OTHERS WITHOUT THEIR CONSENT.  HOWEVER, UNLIKE A
SITUATION INVOLVING A PERSON'S HOME, NO MEANINGFUL CLAIM TO PROTECTION
OF A RIGHT OF PRIVACY CAN BE ADVANCED BY RESPONDENTS HERE.  NOR ON THE
FACTS OF THE CASE CAN.ANY SIGNIFICANT CLAIM TO PROTECTION OF THE NORMAL
BUSINESS OPERATION OF THE PROPERTY BE RAISED.  NAKED TITLE IS
ESSENTIALLY ALL THAT IS AT ISSUE. 

THE ECONOMIC DEVELOPMENT OF THE UNITED STATES IN THE LAST 20 YEARS
REINFORCES OUR OPINION OF THE CORRECTNESS OF THE APPROACH TAKEN IN
MARSH.  THE LARGE-SCALE MOVEMENT OF THIS COUNTRY'S POPULATION FROM THE
CITIES TO THE SUBURBS HAS BEEN ACCOMPANIED BY THE ADVENT OF THE
SUBURBAN SHOPPING CENTER, TYPICALLY A CLUSTER OF INDIVIDUAL RETAIL
UNITS ON A SINGLE LARGE PRIVATELY OWNED TRACT.  IT HAS BEEN ESTIMATED
THAT BY THE END OF 1966 THERE WERE BETWEEN 10,000 AND 11,000 SHOPPING
CENTERS IN THE UNITED STATES AND CANADA, ACCOUNTING FOR APPROXIMATELY
37% OF THE TOTAL RETAIL SALES IN THOSE TWO COUNTRIES.  /14/ 

THESE FIGURES ILLUSTRATE THE SUBSTANTIAL CONSEQUENCES FOR WORKERS
SEEKING TO CHALLENGE SUBSTANDARD WORKING CONDITIONS, CONSUMERS
PROTESTING SHODDY OR OVERPRICED MERCHANDISE, AND MINORITY GROUPS
SEEKING NONDISCRIMINATORY HIRING POLICIES THAT A CONTRARY DECISION HERE
WOULD HAVE.  BUSINESS ENTERPRISES LOCATED IN DOWNTOWN AREAS WOULD BE
SUBJECT TO ON-THE-SPOT PUBLIC CRITICISM FOR THEIR PRACTICES, BUT
BUSINESSES SITUATED IN THE SUBURBS COULD LARGELY IMMUNIZE THEMSELVES
FROM SIMILAR CRITICISM BY CREATING A CORDON SANITAIRE OF PARKING LOTS
AROUND THEIR STORES.  NEITHER PRECEDENT NOR POLICY COMPELS A RESULT SO
AT VARIANCE WITH THE GOAL OF FREE EXPRESSION AND COMMUNICATION THAT IS
THE HEART OF THE FIRST AMENDMENT. 

THEREFORE, AS TO THE SUFFICIENCY OF RESPONDENTS' OWNERSHIP OF THE
LOGAN VALLEY MALL PREMISES AS THE SOLE SUPPORT OF THE INJUNCTION ISSUED
AGAINST PETITIONERS, WE SIMPLY REPEAT WHAT WAS SAID IN MARSH V.
ALABAMA, 326 U.S.,AT 506, "OWNERSHIP DOES NOT ALWAYS MEAN ABSOLUTE
DOMINION.  THE MORE AN OWNER, FOR HIS ADVANTAGE, OPENS UP HIS PROPERTY
FOR USE BY THE PUBLIC IN GENERAL, THE MORE DO HIS RIGHTS BECOME
CIRCUMSCRIBED BY THE STATUTORY AND CONSTITUTIONAL RIGHTS OF THOSE WHO
USE IT."  LOGAN VALLEY MALL IS THE FUNCTIONAL EQUIVALENT OF A "BUSINESS
BLOCK" AND FOR FIRST AMENDMENT PURPOSES MUST BE TREATED IN
SUBSTANTIALLY THE SAME MANNER.  /15/ 

THE JUDGMENT OF THE SUPREME COURT OF PENNSYLVANIA IS REVERSED AND
THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  PETITIONERS ALSO CONTEND (1) THAT THE STATE COURTS WERE WITHOUT
JURISDICTION IN THIS CASE BECAUSE THE CONTROVERSY INVOLVES ISSUES THAT
ARE WITHIN THE EXCLUSIVE JURISDICTION OF THE NATIONAL LABOR RELATIONS
BOARD, SEE MEAT CUTTERS LOCAL 427 V. FAIRLAWN MEATS, INC., 353 U.S. 20
(1957), AND (2) THAT THE PICKETING HEREIN WAS PROTECTED AS A "CONCERTED
ACTIVITY) FOR . . . MUTUAL AID OR PROTECTION" BY SEC. 7 OF THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED, 49 STAT. 452, 29 U.S.C. 157.  BECAUSE
OF OUR DISPOSITION OF THE CASE, WE DO NOT REACH EITHER CONTENTION. 
/2/  SUCH CONGESTION AS THERE MAY HAVE BEEN WAS REGULATED BY PORTIONS
OF THE ORDER NOT HERE CHALLENGED.  SEE N. 4, INFRA. 

/3/  IN ADDITION TO LOCAL 590, THE PETITIONERS HEREIN ARE VARIOUS
MEMBERS AND OFFICIALS OF THE LOCAL WHO WERE ENGAGED IN THE PICKETING IN
ONE WAY OR ANOTHER. 

/4/  THE COURT ALSO ENJOINED PETITIONERS FROM BLOCKING ACCESS BY
ANYONE TO RESPONDENTS' PREMISES, MAKING ANY THREATS OR USING ANY
VIOLENCE AGAINST CUSTOMERS, EMPLOYEES, AND SUPPLIERS OF WEIS, AND
PHYSICALLY INTERFERING WITH THE PERFORMANCE BY WEIS EMPLOYEES OF THEIR
DUTIES.  PETITIONERS MAKE NO CHALLENGE TO THESE PARTS OF THE ORDER AND
IT APPEARS CONCEDED THAT THERE HAS BEEN NO SUBSEQUENT PICKETING BY
PETITIONERS IN VIOLATION OF THESE PROVISIONS.  A PORTION OF THE ORDER
ALSO DIRECTS THAT NO MORE THAN ".  . . PICKETS" BE USED AT ANY ONE
TIME, BUT NO NUMBER HAS EVER BEEN INSERTED INTO THE BLANK SPACE AND
THUS NO LIMITATION APPEARS TO HAVE EVER BEEN IMPOSED. 

/5/  WE NEED NOT CONCERN OURSELVES WITH DECIDING WHETHER THE
INJUNCTION IS TO BE CHARACTERIZED AS PERMANENT OR TEMPORARY.  SINCE THE
ORDER PROVIDES IN TERMS THAT IT SHALL REMAIN IN EFFECT UNTIL FURTHER
MODIFICATION BY THE COURT AND SINCE THERE IS NO INDICATION THAT ANY
MODIFICATION AFFECTING THE ISSUES PRESENTLY BEFORE US WILL BE
FORTHCOMING AT ANY TIME IN THE NEAR FUTURE, THE JUDGMENT BELOW
UPHOLDING THE ISSUANCE OF THE INJUNCTION IS CLEARLY FINAL FOR PURPOSES
OF REVIEW BY THIS COURT.  COMPARE CONSTRUCTION LABORERS' LOCAL 438 V.
CURRY, 371 U.S. 542 (1963). 

/6/  PETITIONERS DID NOT ARGUE THEIR PRE-EMPTION CONTENTIONS IN
THEIR BRIEF BEFORE THE PENNSYLVANIA SUPREME COURT AND, ACCORDINGLY,
THAT COURT DOES NOT APPEAR TO HAVE PASSED ON THEM. 

/7/  NEEDLESS TO SAY, HAD THE PENNSYLVANIA SUPREME COURT RELIED ON
THE PURPOSE OF THE PICKETING AND HELD IT TO BE ILLEGAL, SUBSTANTIAL
QUESTIONS OF PRE-EMPTION UNDER THE FEDERAL LABOR LAWS WOULD HAVE BEEN
PRESENTED.  COMPARE HOTEL EMPLOYEES LOCAL 255 V. SAX ENTERPRISES, INC.,
358 U.S. 270 (1959). 

/8/  WE ARE INFORMED THAT, IN ADDITION TO WEIS AND SEARS, 15 OTHER
COMMERCIAL ESTABLISHMENTS ARE PRESENTLY SITUATED IN THE SHOPPING
CENTER. 

/9/  THE PICKETING CARRIED ON BY PETITIONERS WAS DIRECTED
SPECIFICALLY AT PATRONS OF THE WEIS MARKET LOCATED WITHIN THE SHOPPING
CENTER AND THE MESSAGE SOUGHT TO BE CONVEYED TO THE PUBLIC CONCERNED
THE MANNER IN WHICH THAT PARTICULAR MARKET WAS BEING OPERATED.  WE ARE,
THEREFORE, NOT CALLED UPON TO CONSIDER WHETHER RESPONDENTS' PROPERTY
RIGHTS COULD, CONSISTENTLY WITH THE FIRST AMENDMENT, JUSTIFY A BAR ON
PICKETING WHICH WAS NOT THUS DIRECTLY RELATED IN ITS PURPOSE TO THE USE
TO WHICH THE SHOPPING CENTER PROPERTY WAS BEING PUT. 

/10/  COMPARE COX V. NEW HAMPSHIRE, SUPRA; COX V. LOUISIANA, SUPRA;
CAMERON V. JOHNSON, SUPRA.  IT SHOULD BE NOTED THAT PORTIONS OF THE
INJUNCTION, NOT CONTESTED HERE BY PETITIONERS, DO ACCOMPLISH PRECISELY
SUCH A REGULATION OF THE PICKETING.  SEE N. 4, SUPRA. 

/11/  RESPONDENTS ARGUE THAT THIS CASE DOES NOT INVOLVE PETITIONERS'
RIGHT TO DISTRIBUTE HANDBILLS, NOTWITHSTANDING THAT THE PROVISION OF
THE INJUNCTION PROHIBITING TRESPASSING WOULD SEEM TO ENCOMPASS ENTRY
FOR THE PURPOSE OF DISTRIBUTING LEAFLETS, BECAUSE THE PETITIONERS WERE
NEVER ENGAGED IN HANDBILLING WITHIN THE MALL.  SIMILARLY RESPONDENTS
SUGGEST THAT THE ONLY QUESTION CONCERNING PICKETING IN THIS CASE
RELATES TO THE PICKETING CARRIED ON IN THE PARCEL PICKUP AREA, SINCE
ALMOST ALL THE PICKETING OCCURRED THERE PRIOR TO THE ISSUANCE OF THE
INJUNCTION.  WE REJECT THE NOTION THAT AN INJUNCTION THAT BY ITS TERMS
CLEARLY PROHIBITS ENTRY ONTO THE ENTIRE MALL PREMISES TO PICKET SHOULD
BE GIVEN THE READING SUGGESTED BY THE RESPONDENTS SIMPLY BECAUSE IT IS
BROADER THAN THE FACTS AT THE TIME REQUIRED.  THE INJUNCTION IS
PRESENTLY STILL OPERATIVE AND NO LIMITING CONSTRUCTION HAS BEEN PLACED
ON IT BY THE PENNSYLVANIA COURTS.  WE SEE NOTHING TO SUGGEST THAT
PETITIONERS COULD NOT BE IMMEDIATELY CITED FOR CONTEMPT IF THEY
VIOLATED THE PLAIN TERMS OF THE INJUNCTION, WHATEVER ITS RELATIONSHIP
TO THEIR PREVIOUS CONDUCT MAY BE.  AS FOR HANDBILLING, THE OPINION OF
THE TRIAL COURT REVEALS THAT IT WAS PREPARED TO ENJOIN THE HANDBILLING
BEING CARRIED ON ALONG THE BERMS HAD RESPONDENTS SO REQUESTED.  GIVEN
THAT, THE SUGGESTION THAT THE ABSOLUTE PROHIBITION AGAINST PETITIONERS'
TRESPASSING ON THE MALL DOES NOT INCLUDE HANDBILLING IS LIKEWISE
TENABLE.  WE DO NOT TREAT PETITIONERS' RIGHT TO DISTRIBUTE LEAFLETS
SEPARATELY IN THIS OPINION SIMPLY BECAUSE A HOLDING THAT PETITIONERS
ARE ENTITLED TO PICKET WITHIN THE MALL OBVIOUSLY EXTENDS TO HANDBILLING
AS WELL AND ALSO BECAUSE PETITIONERS THEMSELVES MAKE NO SEPARATE ISSUE
OF IT. 

/12/  PETITIONERS POINT OUT THAT THEY COULD CONCEIVABLY FIND
THEMSELVES CHARGED WITH CONDUCTING AN ILLEGAL SECONDARY BOYCOTT IF THEY
DO NOT COMPLY WITH THE RULES LAID DOWN BY THE NLRB AND THE COURTS
GOVERNING COMMON SITUS PICKETING.  COMPARE ELECTRICAL WORKERS LOCAL 761
V. NLRB, 366 U.S. 667 (1961). 

/13/  MOREOVER, THE PARTS OF THE INJUNCTION NOT CONTESTED BY
PETITIONERS ALREADY WENT A LONG WAY TOWARDS PREVENTING ANY SUCH
INTERFERENCE.  SEE N. 4, SUPRA. 

/14/  KAYLIN, A PROFILE OF THE SHOPPING CENTER INDUSTRY, CHAIN STORE
AGE, MAY 1966, AT 17. 

/15/  A NUMBER OF STATE COURTS HAVE REACHED SIMILAR CONCLUSIONS AS
TO SHOPPING CENTERS.  SEE, E.G., SCHWARTZ-TORRANCE INVESTMENT CORP. V.
BAKERY WORKERS LOCAL 31, 61 CAL.2D 766, 394 P.2D 921 (1964), CERT.
DENIED, 380 U.S. 906 (1965); MORELAND CORP. V. RETAIL STORE EMPLOYEES
LOCAL 444, 16 WIS.2D 499, 114 N.W.2D 876 (1962).  COMPARE AMALGAMATED
CLOTHING WORKERS V. WONDERLAND SHOPPING CENTER, INC., 370 MICH. 547,
122 N.W.2D 785 (1963) (AFFIRMING FOUR-TO-FOUR A LOWER COURT HOLDING
THAT HANDBILLING IN A SHOPPING CENTER IS PROTECTED BY THE FIRST
AMENDMENT). 

MR. JUSTICE DOUGLAS, CONCURRING. 

PICKETING ON THE PUBLIC WALKWAYS AND PARKING AREA IN RESPONDENTS'
SHOPPING CENTER PRESENTS A TOTALLY DIFFERENT QUESTION FROM AN INVASION
OF ONE'S HOME OR PLACE OF BUSINESS.  WHILE LOGAN VALLEY MALL IS NOT
DEDICATED TO PUBLIC USE TO THE DEGREE OF THE "COMPANY TOWN" IN MARSH V.
ALABAMA, 326 U.S. 501, IT IS CLEAR THAT RESPONDENTS HAVE OPENED THE
SHOPPING CENTER TO PUBLIC USES.  THEY HOLD OUT THE MALL AS "PUBLIC" FOR
PURPOSES OF ATTRACTING CUSTOMERS AND FACILITATING DELIVERY OF
MERCHANDISE.  PICKETING IN REGARD TO LABOR CONDITIONS AT THE WEIS
SUPERMARKET IS DIRECTLY RELATED TO THAT SHOPPING CENTER BUSINESS.  WHY
SHOULD RESPONDENTS BE PERMITTED TO AVOID THIS INCIDENCE OF CARRYING ON
A PUBLIC BUSINESS IN THE NAME OF "PRIVATE PROPERTY"?  IT IS CLEAR TO ME
THAT THEY MAY NOT, WHEN THE PUBLIC ACTIVITY SOUGHT TO BE PROHIBITED
INVOLVES CONSTITUTIONALLY PROTECTED EXPRESSION RESPECTING THEIR
BUSINESS. 

PICKETING IS FREE SPEECH PLUS, THE PLUS BEING PHYSICAL ACTIVITY THAT
MAY IMPLICATE TRAFFIC AND RELATED MATTERS.  HENCE THE LATTER ASPECTS OF
PICKETING MAY BE REGULATED.  SEE BAKERY DRIVERS LOCAL V. WOHL, 315 U.S.
769, 776-777 (CONCURRING OPINION); HUGHES V. SUPERIOR COURT, 339 U.S.
460, 464-465; BUILDING SERVICE UNION V. GAZZAM, 339 U.S. 532, 536-537. 
THUS, THE PROVISIONS OF THE INJUNCTION IN THIS CASE WHICH PROHIBIT THE
PICKETERS FROM INTERFERING WITH EMPLOYEES, DELIVERYMEN, AND CUSTOMERS
ARE PROPER.  IT IS SAID THAT THE PICKETERS MAY BE BANISHED TO THE
PUBLICLY OWNED BERMS, SEVERAL HUNDRED FEET FROM THE TARGET OF THEIR
CRITICISM.  BUT THAT IS TO MAKE "PRIVATE PROPERTY" A SANCTUARY FROM
WHICH SOME MEMBERS OF THE PUBLIC MAY BE EXCLUDED MERELY BECAUSE OF THE
IDEAS THEY ESPOUSE.  LOGAN VALLEY MALL COVERS SEVERAL ACRES AND THE
NUMBER OF PICKETERS AT ANY TIME HAS BEEN SMALL.  THE COURTS OF
PENNSYLVANIA ARE SURELY CAPABLE OF FASHIONING A DECREE THAT WILL ENSURE
NONINTERFERENCE WITH CUSTOMERS AND EMPLOYEES, WHILE ENABLING THE UNION
MEMBERS TO ASSEMBLE SUFFICIENTLY CLOSE TO WEIS'  MARKET TO MAKE
EFFECTIVE THE EXERCISE OF THEIR FIRST AMENDMENT RIGHTS. 

MR. JUSTICE BLACK, DISSENTING. 

WHILE I GENERALLY ACCEPT THE FACTUAL BACKGROUND OF THIS CASE
PRESENTED IN THE COURT'S OPINION, I THINK IT IS IMPORTANT TO FOCUS ON
JUST WHERE THIS PICKETING WHICH WAS ENJOINED BY THE STATE COURTS WAS
ACTUALLY TAKING PLACE.  THE FOLLOWING EXTRACT IS TAKEN FROM THE TRIAL
COURT'S "FINDINGS OF FACT":  /1/ 

"(7) . . . 

"(A) SMALL GROUPS OF MEN AND WOMEN WEARING PLACARDS . . .

 WALKED BACK AND FORTH IN FRONT OF THE WEIS SUPERMARKET, MORE

  PARTICULARLY IN THE PICK-UP ZONE ADJACENT TO THE COVERED PORCH; 

     "(B) OCCASIONAL PICKETING AS ABOVE DESCRIBED HAS TAKEN PLACE
ON THE COVERED PORCH ITSELF"; 

RESPONDENT WEIS MARKETS, INC., THE OWNER-OCCUPANT OF THE SUPERMARKET
HERE BEING PICKETED, OWNS THE REAL PROPERTY ON WHICH IT CONSTRUCTED ITS
STORE, PORCH, AND PARCEL PICKUP ZONE.  RESPONDENT LOGAN VALLEY PLAZA,
INC., OWNS THE OTHER PROPERTY IN THE SHOPPING CENTER, INCLUDING THE
LARGE AREA WHICH HAS BEEN PAVED AND MARKED OFF AS A GENERAL PARKING LOT
FOR CUSTOMERS OF THE SHOPPING CENTER. 

ANYONE FAMILIAR WITH THE OPERATIONS OF A MODERN-DAY SUPERMARKET
KNOWS THE IMPORTANCE OF THE SO-CALLED "PICK-UP ZONE"-- AN AREA WHERE
THE FREQUENTLY NUMEROUS BAGS OF GROCERIES BOUGHT IN THE STORE CAN BE
LOADED CONVENIENTLY INTO THE CUSTOMERS' CARS.  THE PHENOMENON OF THE
SUPERMARKET COMBINED WITH WIDESPREAD OWNERSHIP OF AUTOMOBILES AND
REFRIGERATION FACILITIES HAS MADE THE PURCHASE OF LARGE QUANTITIES OF
GROCERIES ON A SINGLE SHOPPING TRIP A COMMON OCCURRENCE IN THIS
COUNTRY.  AND IN LINE WITH THIS TREND THE STORES HAVE HAD TO FURNISH
ADEQUATE LOADING AREAS AND FACILITIES INCLUDING IN MANY INSTANCES, SUCH
AS HERE FOR EXAMPLE, EXTRA EMPLOYEES TO ASSIST IN LOADING CUSTOMERS'
CARS.  RESPONDENT WEIS' PARCEL PICKUP ZONE IS FAIRLY TYPICAL OF THE
TYPE OF LOADING AREA THAT HAS BEEN PROVIDED:  IT IS LOCATED ALONGSIDE
THE FRONT OF THE STORE AND IS 4 TO 5 FEET WIDE, 30 TO 40 FEET IN
LENGTH, AND IS MARKED OFF WITH BOLD DOUBLE YELLOW LINES; THE WORDS
"PARCEL PICK-UP"  ARE PRINTED IN LARGE LETTERS IN THE ZONE.  TESTIMONY
AT TRIAL SHOWED THAT THIS PICKUP AREA WAS USED "STRICTLY FOR CUSTOMERS
TO COME AND ENTER TO PICK UP THEIR PARCELS WHICH THEY HAD PURCHASED . .
.  THEY DRIVE INTO THIS PARTICULAR AREA, AND THERE THE GROCERIES ARE
LOADED INTO THE CARS BY (WEIS EMPLOYEES) ON . . . PICK-UP DUTY." 

IT SEEMS CLEAR TO ME, IN LIGHT OF THE CUSTOMARY WAY THAT
SUPERMARKETS NOW MUST OPERATE, THAT PICKUP ZONES ARE AS MUCH A PART OF
THESE STORES AS THE INSIDE COUNTERS WHERE CUSTOMERS SELECT THEIR GOODS
OR THE CHECK-OUT AND BAGGING SECTIONS WHERE THE GOODS ARE PAID FOR.  I
CANNOT CONCEIVE HOW SUCH A PICKUP ZONE, EVEN BY THE WILDEST STRETCHING
OF MARSH V. ALABAMA, 325 U.S. 501, COULD EVER BE CONSIDERED DEDICATED
TO THE PUBLIC OR TO PICKETS.  THE VERY FIRST SECTION OF THE INJUNCION
ISSUED BY THE TRIAL COURT IN THIS CASE RECOGNIZES THIS FACT AND IS
AIMED ONLY AT PROTECTING THIS CLEARLY PRIVATE PROPERTY FROM TRESPASS BY
THE PICKETS.  THUS THE ORDEROF THE COURT SEPARATELY ENJOINS PETITIONERS
FROM: 

 "(A) PICKETING AND TRESPASSING UPON THE PRIVATE PROPERTY OF THE

  PLAITIFF WEISS MARKETS, INC., STORE NO. 40, LOCATED AT LOGAN

  VALLEY MALL, ALTOONA, PENNSYLVANIA, INCLUDING AS SUCH PRIVATE

  PROPERTY THE STOREROOM, PORCH AND PARCEL PICK-UP AREA." 

WHILE THERE IS LANGUAGE IN THE MAJORITY OPINION WHICH INDICATES THAT
THE STATE COURTS MAY STILL REGULATE PICKETING ON RESPONDENT WEIS'
PRIVATE PROPERTY, /2/  THIS IS NOT SUFFICIENT.  I THINK THAT THIS COURT
SHOULD DECLARE UNEQUIVOCALLY THAT SECTION (A) OF THE LOWER COURT'S
INJUNCTION IS VALID UNDER THE FIRST AMENDMENT AND THAT PETITIONERS
CANNOT, UNDER THEGUISE OF EXERCISING FIRST AMENDMENT RIGHTS, TRESPASS
ON RESPONDENT WEIS' PRIVATE PROPERTY FOR THE PURPOSE OF PICKETING.  /3/
IT WOULD BE JUST AS SENSIBLE FOR THIS COURT TO ALLOW THE PICKETS TO
STAND ON THE CHECKOUT COUNTERS, THUS INTERFERING WITH CUSTOMERS WHO
WISH TO PAY FOR THIER GOODS, AS IT IS TO APPROVE PICKETING IN THE
PICKUP ZONE WHICH INTERFERES WITH CUSTOMERS' LOADING OF THEIR CARS.  AT
THE VERY LEAST, THIS WHOLLY SEVERABLE PART OF THE INJUNCTION AIMED AT
THE PICKUP ZONE SHOULD BE AFFIRMED BY THE COURT AS VALID UNDER THE
FIRST AMENDMENT.  AND THIS IS IN FACT THE REALLY IMPORTANT PART OF THE
INJUNCTION SINCE, AS THE COURT'S OPINION ADMITS, "(THE PICKETING WAS
CARRIED OUT ALMOST ENTIRELY IN THE PARCEL PICKUP AREA AND THAT PORTION
OF THE PARKING LOT IMMEDIATELY ADJACENT THERETO." 

I WOULD GO FURTHER, HOWEVER, AND HOLD THAT THE ENTIRE INJUNCTION IS
VALID.  /4/  WITH THE EXCEPTION OF THE WEIS PROPERTY MENTIONED ABOVE,
THE LAND ON WHICH THIS SHOPPING CENTER (COMPOSED OF ONLY TWO STORES AT
THE TIME OF TRIAL AND APPROXIMATELY 17 NOW) IS LOCATED IS OWNED BY
RESPONDENT LOGAN VALLEY PLAZA, INC. LOGAN HAS IMPROVED ITS PROPERTY BY
PUTTING SHOPS AND PARKING SPACES THEREON FOR THE USE OF BUSINESS
CUSTOMERS.  NOW PETITIONERS CONTEND THAT THEY CAN COME ONTO LOGAN'S
PROPERTY FOR THE PURPOSE OF PICKETING AND REFUSE TO LEAVE WHEN ASKED,
AND THAT LOGAN CANNOT USE STATE TRESPASS LAWS TO KEEP THEM OUT.  THE
MAJORITY OF THIS COURT AFFIRMS PETITIONERS' CONTENTIONS.  BUT I CANNOT
ACCEPT THEM, FOR I BELIEVE THAT, WHETHER THIS COURT LIKES IT OR NOT,
THE CONSTITUTION RECOGNIZES AND SUPPORTS THE CONCEPT OF PRIVATE
OWNERSHIP OF PROPERTY.  THE FIFTH AMENDMENT PROVIDES THAT "(NO PERSON
SHALL . . . BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE
PROCESS OF LAW; NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE,
WITHOUT JUST COMPENSATION."  THIS MEANS TO ME THAT THERE IS NO RIGHT TO
PICKET ON THE PRIVATE PREMISES OF ANOTHER TO TRY TO CONVERT THE OWNERS
OR OTHERS TO THE VIEWS OF THE PICKETS.  IT ALSO MEANS, I THINK, THAT IF
THIS COURT IS GOING TO ARROGATE TO ITSELF THE POWER TO ACT AS THE
GOVERNMENT'S AGENT TO TAKE A PART OF WEIS' PROPERTY TO GIVE TO THE
PICKETS FOR THEIR USE, THE COURT SHOULD ALSO AWARD WEIS JUST
COMPENSATION FOR THE PROPERTY TAKEN.     IN AFFIRMING PETITIONERS'
CONTENTIONS THE MAJORITY OPINION RELIES ON MARSH V. ALABAMA, SUPRA, AND
HOLDS THAT RESPONDENTS' PROPERTY HAS BEEN TRANSFORMED TO SOME TYPE OF
PUBLIC PROPERTY.  BUT MARSH WAS NEVER INTENDED TO APPLY TO THIS KIND OF
SITUATION.  MARSH DEALT WITH THE VERY SPECIAL SITUATION OF A COMPANY
OWNED TOWN, COMPLETE WITH STREETS, ALLEYS, SEWERS, STORES, RESIDENCES,
AND EVERYTHING ELSE THAT GOES TO MAKE A TOWN.  THE PARTICULAR COMPANY
TOWN INVOLVED WAS CHICKASAW, ALABAMA, WHICH, AS WE STATED IN THE
OPINION, EXCEPT FOR THE FACT THAT IT "IS OWNED BY THE GULF SHIPBUILDING
CORPORATION . . . HAS ALL THE CHARACTERISTICS OF ANY OTHER AMERICAN
TOWN.  THE PROPERTY CONSISTS OF RESIDENTIAL BUILDINGS, STREETS, A
SYSTEM OF SWERES, A SEWAGE DISPOSAL PLANT AND A 'BUSINESS BLOCK' ON
WHICH BUSINESS PLACES ARE SITUATED."  326 U.S.,AT 502.  AGAIN TOWARD
THE END OF THE OPINION WE EMPHASIZED THAT "THE TOWN OF CHICKASAW DOES
NOT FUNCTION DIFFERENTLY FROM ANY OTHER TOWN."  326 U.S.,AT 508.  I
THINK IT IS FAIR TO SAY THAT THE BASIS ON WHICH THE MARSHA DECISION
RESTED WAS THAT THE PROPERTY INVOLVED ENCOMPASSED AN AREA THAT FOR ALL
PRACTICAL PURPOSES HAD BEEN TURNED INTO A TOWN; THE AREA HAD ALL THE
ATTRIBUTES OF A TOWN AND WAS EXACTLY LIKE ANY OTHER TOWN IN ALABAMA.  I
CAN FIND VERY LITTLE RESEMBLANCE BETWEEN THE SHOPPING CENTER INVOLVED
IN THIS CASE AND CHICKASAW, ALABAMA.  THERE ARE NO HOMES, THERE IS NO
SEWAGE DISPOSAL PLANT, THERE IS NOT EVEN A POST OFFICE ON THIS PRIVATE
PROPERTY WHICH THE COURT NOW CONSIDERS THE EQUIVALENT OF A "TOWN."  /5/
INDEED, AT THE TIME THIS INJUNCTION WAS ISSUED, THERE WERE ONLY TWO
STORES ON THE PROPERTY.  NOW THERE ARE SUPPOSED TO BE ABOUT 17, BUT
THEY ARE ALL CONCEDED TO BE "COMMERCIAL ESTABLISHMENTS."  THE REMAINDER
OF THE PROPERTY IN THE CENTER HAS BEEN LAID OUT AS A LARGE PARKING LOT
WITH INDIVIDUALLY MARKED PARKING SPACES PROVIDED FOR BUSINESS
CUSTOMERS.  ALL I CAN SAY IS THAT THIS SOUNDS LIKE A VERY STRANGE
"TOWN" TO ME. 

THE MAJORITY OPINION RECOGNIZES THE PROBLEM WITH TRYING TO DRAW TOO
CLOSE AN ANALOGY TO MARSH, BUT FACES A DILEMMA IN THAT MARSH IS THE
ONLY POSSIBLE AUTHORITY FOR TREATING ADMITTEDLY PRIVATELY OWNED
PROPERTY THE WAY THE MAJORITY DOES.  THUS THE MAJORITY OPINION CONCEDES
THAT "THE RESPONDENTS HERE DO NOT OWN THE SURROUNDING RESIDENTIAL
PROPERTY AND DO NOT PROVIDE MUNICIPAL SERVICES THEREFOR."  BUT THAT IS
NOT CRUCIAL, ACCORDING TO THE MAJORITY, SINCE THE PETITIONER IN MARSH
WAS ARRESTED IN THE BUSINESS DISTRICT OF CHICKASAW.  THE MAJORITY
OPINION THEN CONCLUDES THAT SINCE THE APPELLANT IN MARSH WAS GIVEN
ACCESS TO THE BUSINESS DISTRICT OF A COMPANY TOWN, THE PETITIONERS IN
THIS CASE SHOULD BE GIVEN ACCESS TO THE SHOPPING CENTER WHICH WAS
FUNCTIONING AS A BUSINESS DISTRICT.  BUT I RESPECTFULLY SUGGEST THAT
THIS REASONING COMPLETELY MISREADS MARSH AND BEGS THE QUESTIONS.  THE
QUESTION IS, UNDER WHAT CIRCUMSTANCES CAN PRIVATE PROPERTY BE TREATED
AS THOUGH IT WERE PUBLIC?  THE ANSWER THAT MARSH GIVES IS WHEN THAT
PROPERTY HAS TAKEN ON ALL THE ATTRIBUTES OF A TOWN, I.E., "RESIDENTIAL
BUILDINGS, STREETS, A SYSTEM OF SEWERS, A SEWAGE DISPOSAL PLANT AND A
'BUSINESS BLOCK' ON WHICH BUSINESS PLACES ARE SITUATED."  326 U.S.,AT
502.  I CAN FIND NOTHING IN MARSH WHICH INDICATES THAT IF ONE OF THESE
FEATURES IS PRESENT, E.G., A BUSINESS DISTRICT, THIS IS SUFFICIENT FOR
THE COURT TO CONFISCATE A PART OF AN OWNER'S PRIVATE PROPERTY AND GIVE
ITS USE TO PEOPLE WHO WANT TO PICKET ON IT. 

IN ALLOWING THE TRESPASS HERE, THE MAJORITY OPINION INDICATES THAT
WEIS AND LOGAN INVITED THE PUBLIC TO THE SHOPPING CENTER'S PARKING
LOT.  THIS STATEMENT IS CONTRARY TO COMMON SENSE.  OF COURSE THERE WAS
AN IMPLICIT INVITATION FOR CUSTOMERS OF THE ADJACENT STORES TO COME AND
USE THE MARKED OFF PLACES FOR CARS.  BUT THE WHOLE PUBLIC WAS NO MORE
WANTED THERE THAN THE WOULD BE INVITED TO PARK FREE AT A PAY PARKING
LOT.  IS A STORE OWNER OR ARE SEVERAL OWNERS TOGETHER LESS ENTITLED TO
HAVE A PARKING LOT SET ASIDE FOR CUSTOMERS THAN OTHER PROPERTY OWNERS? 
TO HOLD THAT STORE OWNERS ARE COMPELLED BY LAW TO SUPPLY PICKETING
AREAS FOR PICKETS TO DRIVE STORE CUSTOMERS AWAY IS TO CREATE A COURT
MADE LAW WHOLLY DISREGARDING THE CONSTITUTIONAL BASIS ON WHICH PRIVATE
OWNERSHIP OF PROPERTY RESTS IN THIS COUNTRY.  AND OF COURSE PICKETING,
THAT IS PATROLLING, IS NOT FREE SPEECH AND NOT PROTECTED AS SUCH. 
GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490; HUGHES V. SUPERIOR
COURT, 339 U.S. 460.  THESE PICKETS DO HAVE A CONSTITUTIONAL RIGHT TO
SPEAK ABOUT WEIS' REFUSAL TO HIRE UNION LABOR, BUT THEY DO NOT HAVE A
CONSTITUTIONAL RIGHT TO COMPEL WEIS TO FURNISH THEM A PLACE TO DO SO ON
ITS PROPERTY.  COX V. LOUISIANA, 379 U.S. 559; ADDERLEY V. FLORIDA, 385
U.S. 39; CAMERON V. JOHNSON, 390 U.S. 611. 

FOR THESE REASONS I RESPECTFULLY DISSENT. 

/1/  THIS APPEARS IN THE OPINION OF THE COURT OF COMMON PLEAS OF
BLAIR COUNTY, PENNSYLVANIA, DATED FEBRUARY 14, 1966, AND UNREPORTED. 

/2/  THE MAJORITY OPINION CONTAINS THE FOLLOWING STATEMENT: "BECAUSE
THE PENNSYLVANIA COURTS HAVE HELD THAT 'PICKETING AND TRESPASSING' CAN
BE PROHIBITED ABSOLUTELY ON RESPONDENTS' PREMISES, WE HAVE NO OCCASION
TO CONSIDER THE EXTENT TO WHICH RESPONDENTS ARE ENTITLED TO LIMIT THE
LOCATION AND MANNER OF THE PICKETING OR THE NUMBER OF PICKETS WITHIN
THE MALL IN ORDER TO PREVENT INTERFERENCE WITH EITHER ACCESS TO THE
MARKET BUILDING OR VEHICULAR USE OF THE PARCEL PICKUP AREA AND PARKING
LOT."  ANTE, AT 321.  THIS STATEMENT IGNORES THE FACT THAT THE
INJUNCTION ORDER OF THE COMMON PLEAS COURT CONTAINS SEPARATELY
DESIGNATED SECTIONS WHICH ARE EASILY DIVISIBLE. 

/3/  SINCE THE MAJORITY OPINION DOES NOT REACH ANY ISSUE UNDER THE
NATIONAL LABOR RELATIONS ACT, 29 U.S.C. 141 ET SEQ., NEITHER DO I. MY
DECLARATION CONCERNING THE VALIDITY OF THE INJUNCTION IS CONCERNED WITH
THE FIRST AND FOURTEENTH AMENDMENTS.  I DO NOT FIND THAT THE
INJUNCTION, AND MOST IMPORTANTLY SEC. (A), VIOLATES ANY FIRST AMENDMENT
RIGHTS. 

/4/  SEE N. 3, SUPRA. 

/5/  IN MARSH V. ALABAMA, SUPRA, A DEPUTY OF THE MOBILE COUNTY
SHERIFF, PAID BY THE COMPANY, SERVED AS THE TOWN'S POLICEMAN.  WE ARE
NOT TOLD WHETHER THE LOGAN VALLEY PLAZA SHOPPING CENTER HAD ITS OWN
POLICEMAN. 

MR. JUSTICE HARLAN, DISSENTING. 

THE PETITIONERS ARGUE FOR REVERSAL OF THE DECISION BELOW ON TWO
SEPARATE GROUNDS:  FIRST, THAT PETITIONERS' PICKETING WAS PROTECTED BY
THE FIRST AMENDMENT FROM STATE INJUNCTIVE INTERFERENCE OF THIS KIND;
SECOND, THAT THE PENNSYLVANIA COURTS HAVE STRAYED INTO A SPHERE WHERE
THE POWER OF INITIAL DECISION IS RESERVED BY FEDERAL LABOR LAWS TO THE
NATIONAL LABOR RELATIONS BOARD.  I THINK THAT, IF AVAILABLE, THE SECOND
OR "PRE-EMPTION" GROUND WOULD PLAINLY BE A PREFERABLE BASIS FOR
DECISION.  BECAUSE RELIANCE ON PRE-EMPTION WOULD INVOKE THE AUTHORITY
OF A FEDERAL STATUTE THROUGH THE CONSTITUTION'S SUPREMACY CLAUSE, IT
WOULD AVOID INTERPRETATION OF THE CONSTITUTION ITSELF, WHICH WOULD BE
NECESSARY IF THE CASE WERE TREATED UNDER THE FIRST AMENDMENT.  SEE,
E.G., ZSCHERNIG V. MILLER, 389 U.S. 429, 443, 444-445 (OPINION OF THE
WRITER CONCURRING IN THE RESULT).  DEPENDENCE ON PRE-EMPTION WOULD ALSO
ASSURE THAT THE COURT DOES NOT ITSELF DISRUPT THE STATUTORY SCHEME OF
LABOR LAW ESTABLISHED BY THE CONGRESS, A POINT TO WHICH I SHALL
RETURN. 

ON THE MERITS, IT SEEMS CLEAR FROM THE FACTS STATED BY THE COURT,
SEE ANTE, AT 310-312, AND FROM OUR PAST DECISIONS /1/  THAT THE
PETITIONERS HAVE A SUBSTANTIAL PRE-EMPTION CLAIM.  HOWEVER, UPON
EXAMINATION OF THE RECORD I HAVE COME RELUCTANTLY TO THE CONCLUSION
THAT THIS COURT IS PRECLUDED FROM REACHING THE MERITS OF THAT QUESTION
BECAUSE OF THE PETITIONERS' FAILURE TO RAISE ANY SUCH ISSUE IN THE
PENNSYLVANIA SUPREME COURT.  THE RULE THAT IN CASES COMING FROM STATE
COURTS THIS COURT MAY REVIEW ONLY THOSE ISSUES WHICH WERE PRESENTED TO
THE STATE COURT IS NOT DISCRETIONARY BUT JURISDICTIONAL.  SECTION 1257
OF TITLE 28, WHICH DEFINES THIS COURT'S CERTIORARI JURISDICTION,
STATES: 

     "FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT OF A

  STATE IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE

  SUPREME COURT . . . (BY WRIT OF CERTIORARI, . . . WHERE ANY

  TITLE, RIGHT, PRIVILEGE OR IMMUNITY IS SPECIALLY SET UP OR

  CLAIMED UNDER THE CONSTITUTION, TREATIES OR STATUTES OF . . . THE

  UNITED STATES." 

SINCE THE PENNSYLVANIA SUPREME COURT DID NOT ADVERT IN ITS MAJORITY
OPINION TO THE PRE-EMPTION ISSUE, /2/  IT IS NECESSARY TO DETERMINE
WHETHER THAT QUESTION WAS "SPECIALLY SET UP OR CLAIMED" WITHIN THE
MEANING OF SEC. 1257.  IN DECIDING THAT QUESTION, IT IS RELEVANT AND
USUALLY SUFFICIENT TO ASK WHETHER THE PETITIONERS SATISFIED THE STATE
RULES GOVERNING PRESENTATION OF ISSUES.  SEE, E.G., BECK V. WASHINGTON,
369 U.S. 541, 549-554; WOLFE V. NORTH CAROLINA, 364 U.S. 177, 195; JOHN
V. PAULLIN, 231 U.S. 583, 585.  /3/  RULE 59 OF THE PENNSYLVANIA
SUPREME COURT PROVIDES: 

     "THE (APPELLANT'S) STATEMENT OF THE QUESTIONS INVOLVED MUST
SET

  FORTH EACH QUESTION SEPARATELY, IN THE BRIEFEST AND MOST GENERAL

  TERMS . . . . THIS RULE IS TO BE CONSDIERED IN THE HIGHEST DEGREE

  MANDATORY, ADMITTING NO EXCEPTION; ORDINARLY NO POINT WILL BE

  CONSIDERED WHICH IS NOT THUS SET FORTH IN OR NECESSARILY

  SUGGESTED BY THE STATEMENT OF QUESTIONS INVOLVED." 

THE PENNSYLVANIA SUPREME COURT HAS CONSISTENTLY HELD THAT IT WILL
NOT CONSIDER POINTS NOT PRESENTED IN THE MANNER PRESCRIBED BY THIS
RULE, AND THAT SUCH POINTS ARE REGARDED AS ABANDONED OR WAIVED.  /4/
IN THIS CASE, THE PETITIONERS' STATEMENT OF QUESTIONS INVOLVED DID NOT
REFER TO THE POSSIBILITY OF FEDERAL PRE-EMPTION, /5/  AND OF COURSE THE
PENNSYLVANIA SUPREME COURT'S MAJORITY OPINION DID NOT MENTION IT
EITHER.  A SIMILAR RULE OF THE WASHINGTON SUPREME COURT WAS INVOLVED IN
BECK V. WASHINGTON, SUPRA, AND WE HELD THAT WHEN A DEFENDANT HAS FAILED
TO COMPLY WITH SUCH A RULE "THE ARGUMENT CANNOT BE ENTERTAINED HERE
UNDER AN UNBROKEN LINE OF PRECENDENT.  E.G., FERGUSON V. GEORGIA, 365
U.S. 570, 572 (1961); CAPITAL CITY DAIRY CO. V. OHIO, 183 U.S. 238, 248
(1902)."  369 U.S.,AT 553-554.  /6/  I AM THEREFORE LED TO CONCLUDE
THAT WE HAVE NO JURISDICTION TO CONSIDER THE QUESTION OF PRE-EMPTION. 
/7/ 

TURNING TO THE FIRST AMENDMENT QUESTION, I BELIEVE THAT IN THE
CIRCUMSTANCES IT IS NOT AN APPROPRIATE ONE FOR THIS COURT TO DECIDE. 
THIS CONTROVERSY AROSE IN THE COURSE OF A LABOR UNION'S EFFORTS TO
ACHIEVE LABOR GOALS BY INFORMATIONAL PICKETING.  ALTHOUGH NO PRE
EMPTION QUESTION IS PROPERLY BEFORE US, I DO THINK THAT WE CAN TAKE
NOTICE THAT THIS IS AN AREA IN WHICH CONGRESS HAS ENACTED DETAILED
LEGISLATION, SEE, E.G., 29 U.S.C. 158(B)(7)(C), AND HAS SET UP AN
ADMINISTRATIVE AGENCY TO RESOLVE SUCH DISPUTES IN THE FIRST INSTANCE. 
THE REASON WHY IT WAS DEEMED NECESSARY TO FASHION THE DOCTRINE OF PRE
EMPTION UNDER THE FEDERAL LABOR LAWS WAS THAT IT WOULD BE INTOLERABLY
DISRUPTIVE IF THIS STATUTORY SCHEME WERE INTERPRETED DIFFERENTLY BY
STATE AND FEDERAL COURTS.  SEE, E.G., GARNER V. TEASTERS UNION, 346
U.S. 485, 490-491; SAN DIEGO UNIONS V. GARMON, 359 U.S. 236, 242-245. 
IT SEEMS TO ME THAT A SIMILAR OBJECTION APPLIES TO THIS COURT'S
RESOLUTION OF SUCH DISPUTES BY RESORT TO THE CONSTITUTION.  FOR THE
ESTABLISHMENT BY THIS COURT OF A RIGID CONSTITUTIONAL RULE IN A FIELD
WHERE CONGRESS HAS ATTEMPTED TO STRIKE A DELICATE BALANCE BETWEEN
COMPETING ECONOMIC FORCES, AND IN CIRCUMSTANCES WHERE WE CANNOT KNOW
HOW THE CONTROVERSY WOULD BE SETTLED BY CONGRESS' CHOSEN INSTRUMENT,
MAY ALSO HAVE A CONSIDERABLE DISRUPTIVE EFFECT.  I THEREFORE BELIEVE
THAT WE SHOULD EXERCISE OUR DISCRETION NOT TO REACH THE FIRST AMENDMENT
ISSUE, AND THAT WE SHOULD DISMISS THE WRIT AS IMPROVIDENTLY GRANTED. 
SUCH A DISPOSITION WOULD NOT BE UNFAIR TO THE PETITIONERS, SINCE THE
FAILURE TO BRING THE PRE-EMPTION QUESTION PROPERLY BEFORE US WAS THEIR
OWN. 

/1/  SEE, E.G., CONSTRUCTION LABORERS V. CURRY, 371 U.S. 542, 546
548; HOTEL EMPLOYEES LOCAL 255 V. SAX ENTERPRISES, INC., 358 U.S. 270;
YOUNGDAHL V. RAINFAIR, INC., 355 U.S. 131, 139; NLRB V. BABCOCK &
WILCOX COL, 351 U.S. 105, 112-114; NLRB V. STOWE SPINNING CO., 336 U.S.
226, 229-232; CF. AMALGAMATED MEAT CUTTERS V. FAIRLAWN MEATS, INC., 353
U.S. 20, 24-25.  SEE ALSO MARSHALL FIELD & CO., 98 N.L.R.B. 88, 93,
ENFORCED AS MODIFIED SUB NOM. MARSHALL FIELD & CO. V. NLRB, 200 F.2D
375, 380. 

/2/  WHERE THE HIGHEST STATE COURT HAS ACTUALLY RULED ON A FEDERAL
QUESTION, THIS COURT'S CONCERN WITH THE PROPER RAISING OF THE QUESTION
IN THE STATE COURT DISAPPEARS.  SEE, E.G., RALEY V. OHIO, 360 U.S. 423,
436; WHITNEY V. CALIFORNIA, 274 U.S. 357, 360-361; MANHATTAN LIFE INS.
CO. V. COHEN, 234 U.S. 123, 134. 

/3/  THE ONLY CIRCUMSTANCES IN WHICH A FEDERAL CLAIM WILL BE
ENTERTAINED DESPITE THE PETITIONERS' FAILURE TO RAISE IT BELOW IN THE
PRESCRIBED MANNER ARE WHEN THE STATE'S RULES DO NOT AFFORD A REASONABLE
OPPORTUNITY FOR A HEARING ON THE FEDERAL ISSUE, SEE, E.G., CENTRAL
UNION TEL. CO. V. EDWARDSVILLE, 269 U.S. 190, 194-195, OR ARE APPLIED
IN A DISCRIMINATORY FASHION TO EVADE THE FEDERAL CLAIM, SEE, E.G.,
HARTFORD LIFE INS. CO. V. JOHNSON, 249 U.S. 490, 493.  NO SUCH
ALLEGATION IS MADE IN THIS CASE. 

/4/  SEE, E.G., DUNMORE V. MCMILLAN, 396 PA. 472, 152 A.2D 708;
KUHNS V. BRUGGER, 390 PA. 331, 135 A.2D 395; KERR V. O'DONOVAN, 389 PA.
614, 134 A.2D 213. 

/5/  THE PETITIONERS STATED THAT THE QUESTION INVOLVED WAS: 

"DID THE LOWER COURT ERR IN GRANTING A PRELIMINARY INJUNCTION . . .
WHERE IN A SUIT IN EQUITY BY THE OWNER OF A SHOPPING CENTER AND ONE OF
ITS TENANTS IT IS ESTABLISHED THAT THE APPELLANT-UNION PEACEFULLY
PICKETED NEAR TENANT'S BUILDING WITHIN THE CONFINES OF SAID SHOPPING
CENTER; THAT NO PICKETING EFFORTS WERE DIRECTED TOWARD THE SHOPPING
CENTER OR OTHER TENANTS; THAT PICKETING EFFORTS WERE MERELY TO INFORM
THE PUBLIC OF THE LABOR DISPUTE?"     /6/  SEE ALSO WOLFE V. NORTH
CAROLINA, 364 U.S. 177, 195; PARKER V. ILLINOIS, 333 U.S. 571; CIO V.
MCADORY, 325 U.S. 472, 477. 

/7/  THE PETITIONERS CONTEND THAT THIS COURT HAS JURISDICTION TO
CONSIDER THE PRE-EMPTION ISSUE DESPITE THE PETITIONERS' FAILURE TO
RAISE IT BELOW, BECAUSE THE QUESTION IS ONE OF "SUBJECT MATTER
JURISDICTION."  ALTHOUGH SOME IMPLIED SUPPORT FOR THIS PROPOSITION MAY
BE FOUND IN SEABOARD AIR LINE R. CO. V. DANIEL, 333 U.S. 118, 122-123,
I AM UNABLE TO PERCEIVE HOW THE NATURE OF THE FEDERAL QUESTION INVOLVED
CAN EFFECT THE SPECIFIC LIMITATION ON OUR JURISDICTION CONTAINED IN 28
U.S.C. 1257. 

MR. JUSTICE WHITE, DISSENTING. 

THE REASON WHY LABOR UNIONS MAY NORMALLY PICKET A PLACE OF BUSINESS
IS THAT THE PICKETING OCCURS ON PUBLIC STREETS WHICH ARE AVAILABLE TO
ALL MEMBERS OF THE PUBLIC FOR A VARIETY OF PURPOSES THAT INCLUDE
COMMUNICATION WITH OTHER MEMBERS OF THE PUBLIC.  THE EMPLOYER
BUSINESSMAN CANNOT INTERFERE WITH THE PICKETS' COMMUNICATION BECAUSE
THEY HAVE AS MUCH RIGHT TO THE SIDEWALK AND STREET AS HE DOES AND
BECAUSE THE LABOR LAWS PREVENT SUCH INTERFERENCE UNDER VARIOUS
CIRCUMSTANCES; THE GOVERNMENT MAY NOT INTERFERE ON HIS BEHALF, ABSENT
OBSTRUCTION, VIOLENCE, OR OTHER VALID STATUTORY JUSTIFICATION, BECAUSE
THE FIRST AMENDMENT FORBIDS OFFICIAL ABRIDGMENT OF THE RIGHT OF FREE
SPEECH. 

IN MARSH V. ALABAMA, 326 U.S. 501 (1946), THE COMPANY TOWN WAS FOUND
TO HAVE ALL OF THE ATTRIBUTES OF A STATE-CREATED MUNICIPALITY AND THE
COMPANY WAS FOUND EFFECTIVELY TO BE EXERCISING OFFICIAL POWER AS A
DELEGATE OF THE STATE.  IN THE CONTEXT OF THAT CASE, THE STREETS OF THE
COMPANY TOWN WERE AS AVAILABLE AND AS DEDICATED TO PUBLIC PURPOSES AS
THE STREETS OF AN ORDINARY TOWN.  THE COMPANY OWNER STOOD IN THE SHOES
OF THE STATE IN ATTEMPTING TO PREVENT THE STREETS FROM BEING USED AS
PUBLIC STREETS ARE NORMALLY USED. 

THE SITUATION HERE IS STARKLY DIFFERENT.  AS MR. JUSTICE BLACK SO
CLEARLY SHOWS, LOGAN VALLEY PLAZA IS NOT A TOWN BUT ONLY A COLLECTION
OF STORES.  IN NO SENSE ARE ANY PARTS OF THE SHOPPING CENTER DEDICATED
TO THE PUBLIC FOR GENERAL PURPOSES OR THE OCCUPANTS OF THE PLAZA
EXERCISING OFFICIAL POWERS.  THE PUBLIC IS INVITED TO THE PREMISES BUT
ONLY IN ORDER TO DO BUSINESS WITH THOSE WHO MAINTAIN ESTABLISHMENTS
THERE.  THE INVITATION IS TO SHOP FOR THE PRODUCTS WHICH ARE SOLD. 
THERE IS NO GENERAL INVITATION TO USE THE PARKING LOT, THE PICKUP ZONE,
OR THE SIDEWALK EXCEPT AS AN ADJUNCT TO SHOPPING.  NO ONE IS INVITED TO
USE THE PARKING LOT AS A PLACE TO PARK HIS CAR WHILE HE GOES ELSEWHERE
TO WORK.  THE DRIVEWAYS AND LANES FOR AUTO TRAFFIC ARE NOT OFFERED FOR
USE AS GENERAL THOROUGHFARES LEADING FROM ONE PUBLIC STREET TO
ANOTHER.  THOSE DRIVEWAYS AND PARKING SPACES ARE NOT PUBLIC STREETS AND
THUS AVAILABLE FOR PARADES, PUBLIC MEETINGS, STREETS AND THUS AVAILABLE
FOR PARADES, PUBLIC MEETINGS, OR OTHER ACTIVITIES FOR WHICH PUBLIC
STREETS ARE USED.  IT MAY BE MORE CONVENIENT FOR CARS AND TRUCKS TO CUT
THROUGH THE SHOPPING CENTER TO GET FROM ONE PLACE TO ANOTHER, BUT
SURELY THE COURT DOES NOT MEAN TO SAY THAT THE PUBLIC MAY USE THE
SHOPPING CENTER PROPERTY FOR THIS PURPOSE.  EVEN IF THE PLAZA HAS SOME
ASPECTS OF "PUBLIC" PROPERTY, IT IS NEVERTHELESS TRUE THAT SOME PUBLIC
PROPERTY IS AVAILABLE FOR SOME USES AND NOT FOR OTHERS; SOME PUBLIC
PROPERTY IS NEITHER DESIGNED NOR DEDICATED FOR USE BY PICKETS OR FOR
OTHER COMMUNICATIVE ACTIVITIES.  E.G., ADDERLEY V. FLORIDA, 385 U.S. 39
(1966).  THE POINT IS THAT WHETHER LOGAN VALLEY PLAZA IS PUBLIC OR
PRIVATE PROPERTY, IT IS A PLACE FOR SHOPPING AND NOT A PLACE FOR
PICKETING. 

THE MOST THAT CAN BE SAID IS THAT HERE THE PUBLIC WAS INVITED TO
SHOP, THAT EXCEPT FOR THEIR LOCATION IN THE SHOPPING CENTER DEVELOPMENT
THE STORES WOULD HAVE FRONTED ON PUBLIC STREETS AND SIDEWALKS, AND THAT
THE SHOPPING CENTER OCCUPIED A LARGE AREA.  BUT ON THIS PREMISE THE
PARKING LOT, SIDEWALKS, AND DRIVEWAYS WOULD BE AVAILABLE FOR ALL THOSE
ACTIVITIES WHICH ARE USUALLY PERMITTED ON PUBLIC STREETS.  IT IS SAID
THAT LOGAN VALLEY PLAZA IS SUBSTANTIALLY EQUIVALENT TO A BUSINESS BLOCK
AND MUST BE TREATED AS THOUGH EACH STORE WAS BOUNDED BY A PUBLIC STREET
AND A PUBLIC SIDEWALK.  THIS RATIONALE, WHICH WOULD IMMUNIZE
NONOBSTRUCTIVE LABOR UNION PICKETING, WOULD ALSO COMPEL THE SHOPPING
CENTER TO PERMIT PICKETING ON ITS PROPERTY FOR OTHER COMMUNICATIVE
PURPOSES, WHETHER THE SUBJECT MATTER CONCERNED A PARTICULAR BUSINESS
ESTABLISHMENT OR NOT.  NONOBSTRUCTIVE HANDBILLING FOR RELIGIOUS
PURPOSES, POLITICAL CAMPAIGNING, PROTESTS AGAINST GOVERNMENT POLICIES--
THE COURT WOULD APPARENTLY PLACE ALL OF THESE ACTIVITIES CARRIED OUT ON
LOGAN VALLEY'S PROPERTY WITHIN THE PROTECTION OF THE FIRST AMENDMENT,
ALTHOUGH THE ACTIVITIES MAY HAVE NO CONNECTION WHATSOEVER WITH THE
VIEWS OF THE PLAZA'S OCCUPANTS OR WITH THE CONDUCT OF THEIR
BUSINESSES. 

FURTHERMORE, MY BORTHER BLACK IS SURELY CORRECT IN SAYING THAT IF
THE INVITATION TO THE PUBLIC IS SUFFICIENT TO PERMIT NONOBSTRUCTIVE
PICKETING ON THE SIDEWALKS, IN THE PICKUP ZONE, OR IN THE PARKING AREA,
ONLY ACTUAL INTERFERENCE WITH CUSTOMERS OR EMPLOYEES SHOULD BAR PICKETS
FROM QUIELY ENTERING THE STORE AND MARCHING AROUND WITH THEIR MESSAGE
ON FRONT AND BACK. 

IT IS NOT CLEAR HOW THE COURT MIGHT DRAW A LINE BETWEEN "SHOPPING
CENTERS" AND OTHER BUSINESS ESTABLISHMENTS WHICH HAVE SIDEWALKS OR
PARKING ON THEIR OWN PROPERTY.  ANY STORE INVITES THE PATRONAGE OF
MEMBERS OF THE PUBLIC INTERESTED IN ITS PRODUCTS.  I AM FEARFUL THAT
THE COURT'S DECISION TODAY WILL BE A LICENSE FOR PICKETS TO LEAVE THE
PUBLIC STREETS AND CARRY OUT THEIR ACTIVITIES ON PRIVATE PROPERTY, AS
LONG AS THEY ARE NOT OBSTRUCTIVE.  I DO NOT AGREE THAT WHEN THE OWNER
OF PRIVATE PROPERTY INVITES THE PUBLIC TO DO BUSINESS WITH HIM HE
IMPLIEDLY DEDICATES HIS PROPERTY FOR OTHER USES AS WELL.  I DO NOT
THINK THE FIRST AMENDMENT, WHICH BARS ONLY OFFICIAL INTERFERENCES WITH
SPEECH, HAS THIS REACH.  IN MARSH, THE COMPANY RAN AN ENTIRE TOWN AND
THE STATE WAS DEEMED TO HAVE DEVELOPED UPON THE COMPANY THE TASK OF
CARRYING OUT MUNICIPAL FUNCTIONS.  BUT HERE THE "STREETS" OF LOGAN
VALLEY PLAZA ARE NOT LIKE PUBLIC STREETS; THEY ARE NOT USED AS
THOROUGHFARES FOR GENERAL TRAVEL FROM POINT TO POINT, FOR GENERAL
PARKING, FOR MEETINGS, OR FOR EASTER PARADES. 

IF IT WERE SHOWN THAT CONGRESS HAS THOUGHT IT NECESSARY TO PERMIT
PICKETING ON PRIVATE PROPERTY, EITHER TO FURTHER THE NATIONAL LABOR
POLICY UNDER THE COMMERCE CLAUSE OR TO IMPLEMENT AND ENFORCE THE FIRST
AMENDMENT, WE WOULD HAVE QUITE A DIFFERENT CASE.  BUT THAT IS NOT THE
BASIS ON WHICH THE COURT PROCEEDS, AND I THEREFORE DISSENT. 

BERNARD DUNAU ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WAS LESTER ASHER. 

ROBERT LEWIS ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS SIDNEY APFELBAUM. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ARNOLD ORDMAN, DOMINICK L. MANOLI, AND NORTON J. COME
FOR THE NATIONAL LABOR RELATIONS BOARD; BY J. ALBERT WOLL, LAURENCE
GOLD, AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS; BY S. G. LIPPMAN AND TIM
BORNSTEIN FOR THE RETAIL CLERKS INTERNATIONAL ASSOCIATION, AND BY
MARVIN M. KARPATKIN AND MELVIN L. WULF FOR THE AMERICAN CIVIL LIBERTIES
UNION. 

BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY FRED H.
DAUGHERTY FOR THE INTERNATIONAL COUNCIL OF SHOPPING CENTERS, INC., AND
BY CHARLES J. BARNHILL FOR THE AMERICAN RETAIL FEDERATION. 
..END :



IN RE WHITTINGTON, 391 U.S. 341 


       IN RE WHITTINGTON

        CERTIORARI TO THE COURT OF APPEALS OF OHIO, FAIRFIELD

           COUNTY. 

      NO. 701.  ARGUED APRIL 2, 1968.-- DECIDED MAY 20, 1968. 


PETITIONER, 14 YEARS OF AGE, WAS ADJUDGED A DELINQUENT BY AN OHIO
JUVENILE COURT ON THE BASIS OF THE TRIAL JUDGE'S FINDING THAT THERE WAS
"PROBABLE CAUSE" TO BELIEVE THAT HE HAD COMMITTED SECOND-DEGREE MURDER,
A FELONY IF COMMITTED BY AN ADULT.  HE APPEALED TO A STATE COURT OF
APPEALS ALLEGING THAT THE DELINQUENCY PROCEEDING VIOLATED HIS
FOURTEENTH AMENDMENT DUE PROCESS RIGHTS.  THE APPELLATE COURT AFFIRMED
THE JUDGMENT BELOW AND THE OHIO SUPREME COURT DISMISSED A FURTHER
APPEAL.  AFTER THE PETITION FOR CERTIORARI WAS FILED HERE ON APRIL 11,
1967, PETITIONER WAS BOUND OVER FOR TRIAL AS AN ADULT AND INDICTED FOR
FIRST-DEGREE MURDER.  HELD:  SINCE THE OHIO COURTS HAVE NOT HAD THE
OPPORTUNITY TO ASSESS THE IMPACT OF IN RE GAULT, 387 U.S. 1, DECIDED
MAY 15, 1967, ON PETITIONER'S CONSTITUTIONAL CLAIMS, THE JUDGMENT IS
VACATED AND REMANDED TO THE STATE COURT OF APPEALS FOR RECONSIDERATION
IN LIGHT OF GAULT.  UPON REMAND THE COURT MAY ALSO CONSIDER THE IMPACT,
IF ANY, ON PETITIONER'S QUESTIONS CONCERNING THE INTERVENING JUVENILE
COURT ORDER REQUIRING HIM TO FACE TRIAL IN THE ADULT COURTS. 

13 OHIO APP.2D 11, 233 N.E.2D 333, VACATED AND REMANDED. 

PER CURIAM 

PETITIONER, WHO WAS 14 YEARS OLD AT THE TIME, WAS ADJUDGED A
DELINQUENT BY THE JUVENILE COURT OF FAIRFIELD COUNTY, OHIO, ON
SEPTEMBER 7, 1966, ON THE BASIS OF THE TRIAL JUDGE'S FINDING THAT THERE
WAS "PROBABLE CAUSE" TO BELIEVE THAT HE HAD COMMITTED A CRIME THAT
WOULD BE A FELONY IF COMMITTED BY AN ADULT, NAMELY, SECOND-DEGREE
MURDER.  PETITIONER APPEALED TO THE OHIO COURT OF APPEALS FOR FAIRFIELD
COUNTY, CONTENDING THAT THE PROCEEDING IN THE JUVENILE COURT WHICH
RESULTED IN THE ORDER ADJUDICATING HIM A DELINQUENT VIOLATED HIS RIGHTS
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  SPECIFICALLY
HE ARGUED THAT HE HAD BEEN DETERMINED TO BE A DELINQUENT ON THE BASIS
OF AN UNCONSTITUTIONALLY LOW STANDARD OF PROOF, AND THAT HE HAD BEEN
DENIED HIS CONSTITUTIONAL RIGHTS TO TRIAL BY JURY, TO AN IMPARTIAL
TRIBUNAL, AND TO BAIL PENDING DISPOSITION OF THE CASE AGAINST HIM; HE
ALSO CONTENDED THAT HIS PRIVILEGE AGAINST SELF-INCRIMINATION HAD BEEN
VIOLATED BY THE ADMISSION INTO EVIDENCE AGAINST HIM OF STATEMENTS MADE
IN RESPONSE TO QUESTIONING FROM POLICE OFFICERS.  THE OHIO COURT OF
APPEALS REJECTED THESE CONTENTIONS AND AFFIRMED THE JUDGMENT OF THE
JUVENILE COURT ON JANUARY 3, 1967.  13 OHIO APP.2D 11, 233 N.E.2D 333. 
ON MARCH 15, 1967, THE SUPREME COURT OF OHIO, SUA SPONTE, DISMISSED
PETITIONER'S FURTHER APPEAL ON THE GROUND THAT IT PRESENTED "NO
SUBSTANTIAL CONSTITUTIONAL QUESTION."  PETITIONER THEN FILED A PETITION
FOR CERTIORARI IN THIS COURT, WHICH WE GRANTED, 389 U.S. 819 (1967),
RAISING THE SAME ISSUES PRESENTED IN THE OHIO COURTS. 

UNDER OHIO LAW AN ADJUDICATION THAT A CHILD IS A DELINQUENT CAN HAVE
NUMEROUS SUBSTANTIAL CONSEQUENCES.  FOR EXAMPLE, ONCE SUCH A
DETERMINATION IS MADE THE JUVENILE COURT MAY PLACE THE CHILD IN A
VARIETY OF STATE INSTITUTIONS OR IN A FOSTER HOME.  OHIO REV. CODE SEC.
2151.35.  ANOTHER ALTERNATIVE DISPOSITION IN A CASE WHERE THE CHILD HAS
BEEN FOUND TO HAVE COMMITTED A FELONY IS FOR THE JUVENILE COURT TO BIND
THE CHILD OVER TO THE COURT OF COMMON PLEAS FOR TRIAL UNDER THE
CRIMINAL STATUTES APPLICABLE TO ADULTS.  OHIO REV. CODE SEC. 2151.26. 
/1/  AT THE TIME THE PETITION FOR CERTIORARI WAS FILED IN THIS CASE ON
APRIL 11, 1967, NO DISPOSITION BEYOND THE ADJUDICATION ITSELF AND
ORDERING OF A PHYSICAL AND MENTAL EXAMINATION OF PETITIONER HAD BEEN
MADE BY THE JUVENILE COURT.  WE HAVE SINCE BEEN INFORMED BY THE PARTIES
THAT PETITIONER HAS BEEN BOUND OVER FOR TRIAL AS AN ADULT AND THAT HE
HAS BEEN INDICTED FOR THE CRIME OF FIRST-DEGREE MURDER. 

THE STATE ARGUES VIGOROUSLY THAT, BECAUSE OF THE DISPOSITION
SUBSEQUENTLY MADE BY THE JUVENILE COURT, THE PROCEEDING AT WHICH THE
DETERMINATION OF DELINQUENCY WAS MADE WAS MERELY THE EQUIVALENT OF A
PROBABLE CAUSE HEARING FOR AN ADULT.  PETITIONER, ON THE OTHER HAND,
ASSERTS THAT HIS ADJUDICATION AS A DELINQUENT IS FINAL FOR PURPOSES OF
APPELLATE REVIEW AND THAT SUBSTANTIAL CONSEQUENCES OF THAT DECISION
CONTINUE DESPITE THE SUPERVENING TRANSFER OF JURISDICTION OVER
PETITIONER TO THE ADULT CRIMINAL COURTS.  THE RESOLUTION OF THIS
DISPUTE IS CRUCIAL TO MANY OF THE ISSUES PRESENTED BY PETITIONER,
SINCE, FOR EXAMPLE, IN ORDINARY PROBABLE CAUSE HEARINGS INVOLVING
ADULTS THERE IS NO RIGHT TO EITHER TRIAL BY JURY OR A FINDING OF GUILT
BEYOND A REASONABLE DOUBT.  THE UNRESOLVED QUESTION UNDER OHIO LAW IS
NOT WHETHER THE ADJUDICATION OF DELINQUENCY IS A FINAL, APPEALABLE
ORDER.  THE OHIO COURT OF APPEALS CONSIDERED THAT ISSUE AND RULED THAT
THE ORDER IS APPEALABLE, AND THE OHIO SUPREME COURT NECESSARILY
ACCEPTED THIS CONCLUSION BECAUSE ITS DISMISSAL OF THE APPEAL WAS NOT
BASED ON THE JURISDICTIONAL ISSUE.  THE QUESTION WHICH THE OHIO COURTS
HAVE NOT SETTLED IS WHAT, IF ANY, EFFECT THE "DISPOSITION" ORDER,
ENTERED AFTER THEIR DECISIONS ON THE APPEAL AND AFTER THE PETITION FOR
CERTIORARI WAS FILED HERE, HAS UPON THE PRIOR DELINQUENCY DETERMINATION
MADE BY THE JUVENILE COURT. 

ON THE CONSTITUTIONAL ISSUES, PETITIONER RELIES HEAVILY ON IN RE
GAULT, 387 U.S. 1, WHICH WAS DECIDED ON MAY 15, 1967, SOME TWO MONTHS
AFTER THE DISMISSAL BY THE OHIO SUPREME COURT IN THIS CASE.  IN GAULT,
THIS COURT HELD SQUARELY, FOR THE FIRST TIME, THAT VARIOUS OF THE
FEDERAL CONSTITUTIONAL GUARANTEES ACCOMPANYING ORDINARY CRIMINAL
PROCEEDINGS WERE APPLICABLE TO STATE JUVENILE COURT PROCEEDINGS WHERE
POSSIBLE COMMITMENT TO A STATE INSTITUTION WAS INVOLVED.  BECAUSE THE
OHIO COURTS HAVE NOT HAD THE OPPORTUNITY TO ASSESS THE IMPACT OF THAT
DECISION ON PETITIONER'S CLAIMS, WE DEEM IT APPROPRIATE TO VACATE THE
JUDGMENT OF THE OHIO COURT OF APPEALS AND REMAND THE CASE FOR
RECONSIDERATION IN LIGHT OF GAULT.  UPON SUCH REMAND, THE OHIO COURT
MAY, OF COURSE, ALSO CONSIDER THE IMPACT, IF ANY, ON THE QUESTIONS
RAISED BY PETITIONER OF THE INTERVENING ORDER OF THE JUVENILE COURT
REQUIRING HIM TO FACT TRIAL IN THE ADULT COURTS. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE OHIO COURT
OF APPEALS FOR FAIRFIELD COUNTY FOR CONSIDERATION IN LIGHT OF IN RE
GAULT, 387 U.S. 1 (1967). 

           VACATED AND REMANDED. 

/1/  IN ADDITION, OHIO SPECIFICALLY PROVIDES THAT A DELINQUENCY
JUDGMENT MAY BE CONSIDERED BY ANY COURT WITH RESPECT TO SENTENCING OR
PROBATION IN SUBSEQUENT CRIMINAL PROCEEDINGS.  OHIO REV. CODE SEC.
2151.35.  FOR A GENERAL DISCUSSION OF THE PRACTICAL CONSEQUENCES FOR
JUVENILES OF A DELINQUENCY RECORD, SEE THE PRESIDENT'S COMMISSION ON
LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME
IN A FREE SOCIETY 66-67, 75 (1967), AND ITS TASK FORCE REPORT:
JUVENILE DELINQUENCY AND YOUTH CRIME 92-93, 360-361, 385, 417-418
(1967). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

I WOULD DISMISS THIS CASE BECAUSE THE DETERMINATION OF DELINQUENCY
WHICH WE HAVE BEFORE US IS NOT A FINAL JUDGMENT WITHIN OUR APPELLATE
JURISDICTION OVER PROCEEDINGS IN STATE COURTS.  28 U.S.C. 1257. 
EASTMAN V. OHIO, 299 U.S. 505 (1936): POLAKOW'S REALTY EXPERTS, INC. V.
ALABAMA, 319 U.S. 750 (1943); SEE BERMAN V. UNITED STATES, 302 U.S.
211, 212 (1937); EDWARDS V. CALIFORNIA, 314 U.S. 160, 171 (1941):  R.
STERN & E. GRESSMAN, SUPREME COURT PRACTICE SEC. 3-15 (3D ED. 1962);
ROBERTSON & KIRKHAM'S JURISDICTION OF THE SUPREME COURT OF THE UNITED
STATES, SEC. 39 (R. WOLFSON & P. KURLAND, EDS.  1951).  THE JUVENILE
COURT'S FORMAL ORDER FOUND PETITIONER TO BE DELINQUENT BUT MADE NO
FINAL DISPOSITION OF HIS CASE; IT DID NOT RELINQUISH JURISDICTION TO
THE ADULT COURT, PLACE PETITIONER ON PROBATION, OR COMMIT HIM TO A
JUVENILE INSTITUTION.  SINCE THAT TIME, HOWEVER, THE JUVENILE COURT HAS
ENTERED AN ORDER RELINQUISHING JURISDICTION TO THE ADULT COURT.  THAT
ORDER IS NOW ON APPEAL IN THE COURTS OF OHIO, AND THAT ORDER MAY BE A
FINAL JUDGMENT OF THE JUVENILE COURT FALLING WITHIN THE REACH OF OUR
APPELLATE JURISDICTION.  IF THAT ORDER WERE PROPERLY BEFORE US NOW, IT
WOULD RAISE THE QUESTION OF THE CONSTITUTIONALITY OF THE PROCEDURES
EMPLOYED TO DETERMINE DELINQUENCY WHERE SUCH A DETERMINATION IS A
PREREQUISITE (AS IT MAY BE UNDER OHIO LAW) TO RELINQUISHING
JURISDICTION TO THE ADULT COURT.  I DO NOT BELIEVE THAT TURNOVER
PROCEEDINGS REQUIRE ALL OF THE FORMALITIES WHICH SHOULD ATTEND A
DETERMINATION OF DELINQUENCY FOR PURPOSES OF FINAL DISPOSITION IN THE
JUVENILE COURT ITSELF.  I ALSO HAVE GREAT DOUBT THAT THE FINDING OF
DELINQUENCY IN THIS CASE, AND ANY CONSEQUENCES WHICH NORMALLY ATTACH TO
IT, WOULD IN ANY WAY SURVIVE A TRIAL AND A NOT GUILTY VERDICT IN THE
ADULT COURTS. 

JACK SUPMAN AND DANIEL A. REZNECK ARGUED THE CAUSE FOR PETITIONER. 
WITH THEM ON THE BRIEFS WAS JUDSON C. KISTLER. 

E. RAYMOND MOREHART AND MERRITT W. GREEN ARGUED THE CAUSE FOR THE
STATE OF OHIO.  ON THE BRIEF WITH MR. MOREHART WAS S. FARRELL JACKSON. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY EDWARD Q.
CARR, JR., AND LEON B. POLSKY FOR THE LEGAL AID SOCIETY OF NEW YORK,
AND BY THE DEFENDER'S OFFICE, CLEVELAND LEGAL AID SOCIETY. 

BRIEFS OF AMICI CURIAE WERE FILED BY MR. GREEN FOR THE NATIONAL
COUNCIL OF JUVENILE COURT JUDGES, AND BY GEORGE R. GEORGIEFF, ASSISTANT
ATTORNEY GENERAL OF FLORIDA, FOR THE FLORIDA COUNCIL OF JUVENILE COURT
JUDGES. 
..END :
















DARWIN V. CONNECTICUT, 391 U.S. 346 


       DARWIN V. CONNECTICUT. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           CONNECTICUT. 

        NO. 794, MISC.  DECIDED MAY 20, 1968. 


PETITIONER WAS ARRESTED FOR MURDER ON DECEMBER 6, 1963, AND HELD
INCOMMUNICADO BY POLICE OFFICERS FOR 30 TO 48 HOURS, DURING WHICH THEY
SOUGHT AND FINALLY OBTAINED HIS CONFESSION.  THREE REQUESTS BY
PETITIONER TO COMMUNICATE WITH THE OUTSIDE WORLD, NUMEROUS ATTEMPTS BY
HIS LAWYERS TO COMMUNICATE WITH HIM OR THE OFFICER IN CHARGE OF HIM,
AND THE ISSUANCE OF A WRIT OF HABEAS CORPUS BY A STATE COURT JUDGE WERE
UNAVAILING.  THE TRIAL JUDGE FOUND THAT IT WAS "ROUTINE PROCEDURE" FOR
INVESTIGATING OFFICERS NOT TO BE DISTURBED DURING AN INVESTIGATION. 
WHILE THUS HELD, PETITIONER WAS SUBJECTED BY OFFICERS TO QUESTIONING. 
ALTHOUGH THE TRIAL JUDGE EXCLUDED FROM EVIDENCE AN ORAL CONFESSION
GIVEN ON DECEMBER 7 AFTER PETITIONER HAD "EITHER FAINTED) OR PRETENDED)
TO FAINT," AND A WRITTEN CONFESSION MADE SHORTLY THEREAFTER, THE JUDGE
ADMITTED A WRITTEN CONFESSION GIVEN THE NEXT DAY, DECEMBER 8, AND
EVIDENCE AS TO A PARTIAL RE-ENACTMENT OF THE CRIME.  DURING THAT RE
ENACTMENT, AS HE HAD DONE INTERMITTENTLY WHILE IN CUSTODY, PETITIONER
DISCLAIMED GUILT.  PETITIONER WAS CONVICTED AND THE STATE SUPREME COURT
AFFIRMED.  HELD:  IN VIEW OF THE "TOTALITY OF THE CIRCUMSTANCES" AND
THE ABSENCE OF ANY "BREAK IN THE STREAM OF EVENTS"  INSULATING THE
FINAL EVENTS "FROM THE EFFECT OF ALL THAT WENT BEFORE"  (CLEWIS V.
TEXAS, 386 U.S. 707, 708, 710), THE TRIAL JUDGE ERRED IN HOLDING THE
DECEMBER 8 CONFESSION AND PARTIAL RE-ENACTMENT VOLUNTARY. 

CERTIORARI GRANTED; 155 CONN. 124, 230 A.2D 573, REVERSED AND
REMANDED. 

PER CURIAM. 

PETITIONER WAS CONVICTED OF SECOND DEGREE MURDER AND SENTENCED TO
LIFE IMPRISONMENT.  THE CONNECTICUT SUPREME COURT AFFIRMED THE
JUDGMENT.  155 CONN. 124, 230 A.2D 573 (19671.  PETITIONER SEEKS A WRIT
OF CERTIORARI FROM THIS COURT.  WE GRANT THE WRIT AND REVERSE. 

ON FRIDAY, DECEMBER 6, 1963, PETITIONER WAS ARRESTED ON A CORONER'S
WARRANT CHARGING HIM WITH MURDER.  DURING THAT ENTIRE DAY UNTIL 9 P.M.
PETITIONER WAS SUBJECTED TO QUESTIONING.  SOMETIME THAT EVENING, THE
OFFICER IN CHARGE BROUGHT IN A REVOLVING DISC AND SOUGHT TO PERSUADE
PETITIONER TO LOOK AT IT AND "RELAX."  THE TRIAL JUDGE SAID THAT "(THE
OFFICER) WAS NOT COMPLETELY UNAWARE THAT THIS WAS A COMMON HYPNOTIC
DEVICE."  THE WHEEL TURNED FOR ABOUT HALF AN HOUR, BUT PETITIONER
REFUSED TO LOOK AT IT. 

THE NEXT MORNING THE QUESTIONING RESUMED AND CONTINUED
INTERMITTENTLY UNTIL ABOUT 4 P.M. WHEN PETITIONER FELL FORWARD,
ACCORDING TO THE TRIAL JUDGE, "EITHER FAINTING OR PRETENDING TO
FAINT."  HE WAS REVIVED AND THEN CONFESSED TO THE MURDER, AS
HEREINAFTER DESCRIBED, IN RESPONSE TO QUESTIONING BY THE OFFICER IN
CHARGE. 

DURING THE ENTIRE PERIOD PETITIONER WAS IN CUSTODY, HIS COUNSEL HAD
BEEN MAKING DETERMINED BUT UNSUCCESSFUL EFFORTS TO CONTACT HIM OR THE
OFFICER IN CHARGE OF HIM.  ON FRIDAY, DECEMBER 6, THERE WERE 19 PHONE
CALLS TO VARIOUS POLICE OFFICES, INCLUDING NINE TO THE ONE AT WHICH
PETITIONER WAS HELD.  ON SATURDAY, THERE WERE FIVE CALLS, AND ON
SUNDAY, THERE WAS ONE. 

ON FRIDAY, THERE WAS A PERSONAL VISIT BY ONE OF THE LAWYERS TO THE
POLICE BARRACKS IN STAFFORD SPRINGS WHERE PETITIONER HAD BEEN TAKEN
THAT MORNING.  BUT AT ABOUT THE SAME TIME THAT COUNSEL ARRIVED, THE
OFFICER IN CHARGE TOOK PETITIONER FROM THE BARRACKS AND DROVE HIM
AROUND, APPARENTLY TO PROTECT HIM FROM WHAT THE OFFICER THOUGHT WERE
NEWSPAPERMEN.  /1/  COUNSEL MADE FOUR VISITS TO VARIOUS BARRACKS ON
SATURDAY. 

EACH OF THESE ATTEMPTS WAS MET WITH DISCLAIMERS OF KNOWLEDGE OF THE
WHEREABOUTS OF EITHER PETITIONER OR OF THE OFFICER IN CHARGE.  THE
TRIAL JUDGE FOUND THAT IT WAS "ROUTINE PROCEDURE" FOR INVESTIGATING
OFFICERS NOT TO BE DISTURBED DURING AN INVESTIGATION.  AT ABOUT 1 OR
1:30 P.M. SATURDAY, AT COUNSEL'S REQUEST, A SUPERIOR COURT JUDGE ISSUED
A WRIT OF HABEAS CORPUS.  A DEPUTY SHERIFF WAS INSTRUCTED TO SERVE THE
WRIT UPON THE OFFICER IN CHARGE OF PETITIONER AND UPON THE CORONER
WITHIN HALF AN HOUR.  THE SHERIFF COULD NOT LOCATE THE OFFICER OR THE
CORONER, ALTHOUGH THE PURPOSE OF THIS INQUIRY WAS STATED TO THE
COMMUNICATIONS OFFICER AT THE HARTFORD BARRACKS.  ON SUNDAY, THE
SHERIFF CALLED THE STAFFORD SPRINGS BARRACKS IN SEARCH OF THE OFFICER
AND RECEIVED A CALL INFORMING HIM THAT THE OFFICER WOULD BE AT THE
SUPERIOR COURT AT 2 P.M.  /2/ 

PETITIONER'S FIRST CONFESSION, MADE ORALLY AFTER THE "FAINTING"
INCIDENT ON THE AFTERNOON OF SATURDAY, DECEMBER 7, THE SECOND DAY OF
ARREST AND INTERROGATION, WAS EXCLUDED FROM EVIDENCE BY THE TRIAL
JUDGE.  THE TRIAL JUDGE ALSO EXCLUDED PETITIONER'S WRITTEN CONFESSION
MADE SHORTLY THEREAFTER.  THE TRIAL JUDGE, HOWEVER, ADMITTED A
SUBSEQUENT WRITTEN CONFESSION MADE ON SUNDAY, DECEMBER 8, AND EVIDENCE
AS TO A PARTIAL RE-ENACTMENT OF THE CRIME WHICH PETITIONER STAGED ON
THAT DAY AT THE REQUEST OF THE POLICE.  DURING THE COURSE OF THIS
PARTIAL RE-ENACTMENT, PETITIONER, AS HE HAD DONE INTERMITTENTLY DURING
HIS CUSTODY, DENIED THAT HE COMMITTED THE CRIME.  THE CONNECTICUT
SUPREME COURT AFFIRMED. 

SINCE THE TRIAL IN THIS CASE BEGAN BEFORE THE DECISIONS OF THIS
COURT IN ESCOBEDO V. ILLINOIS, 378 U.S. 478 (1964), AND MIRANDA V.
ARIZONA, 384 U.S. 435 (1966), THESE CASES ARE NOT CONTROLLING.  JOHNSON
V. NEW JERSEY, 384 U.S. 719 (1966).  BUT THEY ARE RELEVANT ON THE ISSUE
OF VOLUNTARINESS.  DAVIS V. NORTH CAROLING, 384 U.S. 737 (1966).  IN
THE PRESENT CASE, PETITIONER'S LAWYERS MADE NUMEROUS ATTEMPTS TO
COMMUNICATE WITH PETITIONER OR WITH THE OFFICER IN CHARGE.  (CF.
ESCOBEDO V. ILLINOIS, SUPRA, MIRANDA V. ARIZONA, SUPRA, AT 465, N.
35.)  A WRIT OF HABEAS CORPUS ISSUED BY A STATE JUDGE AT THE REQUEST OF
PETITIONER'S COUNSEL WAS FRUITLESS; AND PETITIONER ON THREE SEPARATE
OCCASIONS SOUGHT AND WAS DENIED PERMISSION TO COMMUNICATE WITH THE
OUTSIDE WORLD. 

THE INFERENCE IS INESCAPABLE THAT THE OFFICERS KEPT PETITIONER
INCOMMUNICADO FOR THE 30 TO 48 HOURS DURING WHICH THEY SOUGHT AND
FINALLY OBTAINED HIS CONFESSION.  SEE DAVIS V. NORTH CAROLINA, SUPRA,
AT 745-746; HAYNES V. WASHINGTON, 373 U.S. 503 (1963).  CONSIDERING THE
"TOTALITY OF THE CIRCUMSTANCES" (SEE CLEWIS V. TEXAS, 386 U.S. 707
(1967)), WE CONCLUDE THAT THE COURT ERRED IN HOLDING THAT THE
CONFESSION AND THE PARTIAL RE-ENACTMENT WERE VOLUNTARY.  THE DENIAL OF
ACCESS TO COUNSEL AND THE OUTSIDE WORLD CONTINUED THROUGHOUT, AND THERE
WAS "NO BREAK IN THE STREAN OF EVENTS" FROM ARREST THROUGHOUT THE
CONCEDEDLY INVALID CONFESSIONS OF SATURDAY, DECEMBER 7, TO THE
CONFESSION AND RE-ENACTMENT OF SUNDAY, DECEMBER 8, "SUFFICIENT TO
INSULATE" THE FINAL EVENTS "FROM THE EFFECT OF ALL THAT WENT BEFORE." 
CLEWIS V. TEXAS, SUPRA, AT 710.  SEE BEECHER V. ALABAMA, 389 U.S. 35,
36, N. 2 (1967). 

ACCORDINGLY, THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND
THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT BELOW
IS REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH OUR DECISION HEREIN. 

/1/  WHEN INITIALLY ARRESTED, PETITIONER HAD ASKED TO USE THE
TELEPHONE BUT WAS NOT PERMITTED TO DO SO. 

/2/  THE TRIAL JUDGE SPECIFICALLY FOUND THAT THE OFFICER IN CHARGE
KNEW PETITIONER WAS REPRESENTED BY COUNSEL AT THE CORONER'S INQUEST
JUST ONE DAY BEFORE HIS ARREST, AND THAT THE OFFICER CALLED ONE OF
PETITIONER'S LAWYERS ON SUNDAY TO INFORM HIM THAT THERE WOULD BE A
PRESENTMENT AT 2 P.M.  THE TRIAL JUDGE ALSO FOUND THAT THE OFFICER DID
NOT KNOW WHETHER OR NOT COUNSEL WERE ON A RETAINER BASIS OR HAD BEEN
ENGAGED ONLY FOR THE INQUEST. 

MR. JUSTICE WHITE DISSENTS. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I AM UNABLE TO AGREE WITH THE BASIS ON WHICH THE COURT REVERSES
PETITIONER'S CONVICTION.  THE COURTS OF THE STATE OF CONNECTICUT
CONDUCTED A CAREFUL AND CONSCIENTIOUS REVIEW OF THE "TOTALITY OF THE
CIRCUMSTANCES" SURROUNDING PETITIONER'S THREE CONFESSIONS.  IF THE
QUESTION IN THIS CASE WERE SIMPLY WHETHER THE THIRD CONFESSION WAS
COERCIVELY EXTRACTED, I WOULD VOTE TO AFFIRM.  I CANNOT JOIN THE COURT
IN WHAT SEEMS TO ME NO MORE THAN A SUBSTITUTION OF ITS VIEW ON A CLOSE
FACTUAL QUESTION FOR THAT OF THE STATE COURTS. 

IN THIS CASE, HOWEVER, A SPECIAL ELEMENT IS PRESENT.  THE TRIAL
COURT RULED THAT THE PROSECUTION HAD NOT MET ITS BURDEN OF PROVING THAT
PETITIONER'S FIRST TWO CONFESSIONS WERE VOLUNTARILY MADE.  IT THEN
ADMITTED HIS THIRD CONFESSION.  THE CONNECTICUT SUPREME COURT,
AFFIRMING, EVALUATED PETITIONER'S THIRD CONFESSION BY THE RULES THAT
HAD BEEN APPLIED TO THE OTHER TWO:  FINDING THAT THE ATMOSPHERE HAD
CHANGED ENOUGH TO TIP THE BALANCE IN FAVOR OF VOLUNTARINESS, IT FOUND
THIS CONFESSION ADMISSIBLE.  I DO NOT THINK THIS REFLECTED A PROPER
APPROACH TO THE PROBLEM OF MULTIPLE CONFESSIONS. 

A PRINCIPAL REASON WHY A SUSPECT MIGHT MAKE A SECOND OR THIRD
CONFESSION IS SIMPLY THAT, HAVING ALREADY CONFESSED ONCE OR TWICE, HE
MIGHT THINK HE HAS LITTLE TO LOSE BY REPETITION.  IF A FIRST CONFESSION
IS NOT SHOWN TO BE VOLUNTARY, I DO NOT THINK A LATER CONFESSION THAT IS
MERELY A DIRECT PRODUCT OF THE EARLIER ONE SHOULD BE HELD TO BE
VOLUNTARY.  IT WOULD BE NEITHER CONDUCIVE TO GOOD POLICE WORK, NOR FAIR
TO A SUSPECT, TO ALLOW THE ERRONEOUS IMPRESSION THAT HE HAS NOTHING TO
LOSE TO PLAY THE MAJOR ROLE IN A DEFENDANT'S DECISION TO SPEAK A SECOND
OR THIRD TIME. 

IN CONSEQUENCE, WHEN THE PROSECUTION SEEKS TO USE A CONFESSION
UTTERED AFTER AN EARLIER ONE NOT FOUND TO BE VOLUNTARY, IT HAS, IN MY
VIEW, THE BURDEN OF PROVING NOT ONLY THAT THE LATER CONFESSION WAS NOT
ITSELF THE PRODUCT OF IMPROPER THREATS OR PROMISES OR COERCIVE
CONDITIONS, BUT ALSO THAT IT WAS NOT DIRECTLY PRODUCED BY THE EXISTENCE
OF THE EARLIER CONFESSION.  SEE UNITED STATES V. BAYER, 331 U.S. 532,
540-541.  HERE, THE FACTS AS STATED BY THE STATE COURTS FAIL TO SATISFY
THIS ADDITIONAL BURDEN.  PETITIONER'S THIRD CONFESSION FOLLOWED THE
COMPLETION OF HIS INADMISSIBLE SECOND CONFESSION BY ONLY A FEW HOURS. 
/1/  IN THE INTERVAL HE APPEARS TO HAVE TALKED TO NO ONE EXCEPT HIS
JAILORS AND THE CORONER.  THERE IS NO INDICATION THAT HE HAD ANY REASON
TO THINK THAT A THIRD CONFESSION WOULD INCREASE HIS PERIL.  SINCE I
WOULD HOLD ONLY THAT THE STATE COURTS APPLIED THE WRONG STANDARD IN
THIS CASE, I WOULD REMAND FOR FURTHER PROCEEDINGS, IN ORDER TO GIVE THE
PROSECUTION THE OPPORTUNITY TO SHOW THAT THE THIRD CONFESSION WAS NOT
MERELY THE PRODUCT OF THE ERRONEOUS IMPRESSION THAT THE CAT WAS ALREADY
OUT OF THE BAG. 

/1/  THIS COURT INDICATES THAT THE SECOND CONFESSION OCCUREED ON
SATURDAY AND THE THIRD ON SUNDAY.  IN FACT, PETITIONER COMPLETED HIS
SIGNATURE ON THE SECOND CONFESSION ON SUNDAY MORNING AND IMMEDIATELY
THEREAFTER AGREED TO RE-ENACT THE CRIME.  AFTER THE RE-ENACTMENT HE
DICTATED THE THIRD CONFESSION AND HAD SIGNED IT BY 1:50 SUNDAY
AFTERNOON.  ALTHOUGH PETITIONER EXHIBITED SPORADIC HESITATION, THE
EVENTS OF SUNDAY, AS DESCRIBED BY THE SUPREME COURT OF CONNECTICUT,
FORM A CONTINUOUS SEQUENCE.  THE CONNECTICUT COURTS REJECTED THE
ARGUMENT THAT THE SUNDAY COMPLETION OF THE SIGNATURE ON THE SATURDAY
CONFESSION WAS A "VOLUNTARY" ADOPTION OF THAT STATEMENT. 

JOHN F. SHEA, JR., FOR PETITIONER. 

JOEL H. REED II AND ETALO G. GNUTTI FOR RESPONDENT. 
..END :



















WILSON V. CITY OF PORT LAVACA, 391 U.S. 352 


       WILSON V. CITY OF PORT LAVACA ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

  SOUTHERN DISTRICT OF TEXAS. 

        NO. 1238.  DECIDED MAY 20, 1968. 


WHERE THE DISTRICT JUDGE IN WHOSE COURT THE CASE WAS ORIGINALLY FILED
ADOPTS AS HIW OWN A THREE-JUDGE COURT'S DETERMINATION THAT THE CLAIM
WAS NOT "ONE WHICH MUST BE HEARD BY A THREE-JUDGE COURT" AND THAT THE
RELIEF SOUGHT WAS NOT WARRANTED, AN APPEAL LIES TO THE COURT OF APPEALS
AND NOT TO THIS COURT, AND THEREFORE THE JUDGMENT IS VACATED AND
REMANDED TO PERMIT ENTRY OF A FRESH DECREE FROM WHICH A TIMELY APPEAL
MAY BE TAKEN TO THE COURT OF APPEALS. 

285 F.SUPP.  85, VACATED AND REMANDED. 

PER CURIAM 

A THREE-JUDGE FEDERAL COURT, CONVENED PURSUANT TO 28 U.S.C. 2281,
DETERMINED THAT PLAINTIFF'S CLAIM WAS NOT "ONE WHICH MUST BE HEARD BY A
THREE-JUDGE COURT."  285 F.SUPP.  85, 87.  IT ALSO RULED THAT THE
RELIEF SOUGHT BY PLAINTIFF WAS NOT WARRANTED.  THE DISTRICT JUDGE IN
WHOSE COURT THE CASE WAS ORIGINALLY FILED ADOPTED THE ACTION OF THE
COURT AS HIW OWN.  THE RESULTING SITUATION IS SIMILAR, WE THINK, TO
THAT WHICH RESULTS WHEN A SINGLE JUDGE DECLINES TO CONVENE A THREE
JUDGE COURT AND DENIES RELIEF:  AN APPEAL LIES TO THE APPROPRIATE
UNITED STATES COURT OF APPEALS, AND NOT TO THIS COURT.  SCHACKMAN V.
ARNEBERGH, 387 U.S. 427.  IT DOES NOT APPEAR FROM THE RECORD THAT A
PROTECTIVE APPEAL WAS LODGED IN THE COURT OF APPEALS, AND THE TIME TO
DO SO MAY HAVE EXPIRED.  THEREFORE, WE VACATE THE JUDGMENT BELOW AND
REMAND THE CASE TO THE DISTRICT COURT SO THAT IT MAY ENTER A FRESH
DECREE FROM WHICH A TIMELY APPEAL MAY BE TAKEN TO THE COURT OF
APPEALS.  UTILITY COMM'N V. PENNSYLVANIA R. CO., 382 U.S. 281, 282. 

              IT IS SO ORDERED. 

WILLETT WILSON, APPELLANT, PRO SE.
..END :










ZWICKER V. BOLL, 391 U.S. 353 


       ZWICKER ET AL. V. BOLL, DISTRICT ATTORNEY OF DANE COUNTY ET

           AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF WISCONSIN. 

        NO. 573, MISC.  DECIDED MAY 20, 1968. 


270 F.SUPP.  131, AFFIRMED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
MOTION TO AFFIRM IS ALSO GRANTED AND THE JUDGMENT IS AFFIRMED.  CAMERON
V. JOHNSON, 390 U.S. 611. 

MR. JUSTICE DOUGLAS, DISSENTING. 

APPELLANTS ARE GRADUATE AND UNDERGRADUATE STUDENTS AT THE UNIVERSITY
OF WISCONSIN AND ARE ACTIVE IN STUDENT POLITICAL AND CIVIL RIGHTS
ORGANIZATIONS.  THEY BROUGHT AN ACTION IN THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF WISCONSIN, SEEKING A DECLARATORY JUDGMENT THAT THE
WISCONSIN DISORDERLY CONDUCT STATUTE /1/  IS OVERBROAD AND THEREFORE
UNCONSTITUTIONAL ON ITS FACE, OR AN INJUNCTION RESTRAINING STATE
CRIMINAL PROSECUTIONS UNDER THAT STATUTE WHICH WERE PENDING AGAINST
THEM. 

APPELLANTS ALLEGED IN THEIR COMPLAINT THAT PRECEDING THEIR ARRESTS
THEY WERE ENGAGED ONLY IN PEACEFUL AND CONSTITUTIONALLY PROTECTED
PROTEST ACTIVITIES.  APPELLANTS WERE PROTESTING AGAINST AMERICAN POLICY
IN VIETNAM.  THE ARRESTS WERE MADE IN VARIOUS BUILDINGS OF THE
UNIVERSITY OF WISCONSIN IN WHICH APPELLANTS AND OTHERS HAD GATHERED TO
OBJECT TO A CHEMICAL MANUFACTURER OF NAPALM BEING PERMITTED TO CONDUCT
EMPLOYMENT INTERVIEWS IN THE BUILDINGS.  APPELLANTS WERE ARRESTED UNDER
A "DISORDERLY CONDUCT" STATUTE.  WE KNOW THAT SUCH STATUTES
HISTORICALLY HAVE BEEN USED IN REPRISAL AGAINST UNPOPULAR GROUPS OR
PERSONS WHO ESPOUSE UNPOPULAR CAUSES.  CF. BROWN V. LOUISIANA, 383 U.S.
131; COX V. LOUISIANA, 379 U.S. 536; TAYLOR V. LOUISIANA, 370 U.S. 154;
GARNER V. LOUISIANA, 368 U.S. 157.  BUT THAT IS A PRACTICE NO LONGER
PERMISSIBLE NOW THAT THE FIRST AMENDMENT IS APPLICABLE TO THE STATES BY
REASON OF THE FOURTEENTH. 

A THREE-JUDGE COURT WAS CONVENED WHICH DISMISSED THE COMPLAINT AFTER
ORAL ARGUMENT BUT WITHOUT CONDUCTING AN EVIDENTIARY HEARING.  JUDGE
FAIRCHILD, CONCURRING, BELIEVED THAT 28 U.S.C. 2283 /2/  PROHIBITED THE
ISSUANCE OF AN INJUNCTION; JUDGE DOYLE, DISSENTING, WAS OF THE CONTRARY
OPINION.  JUDGE GORDON FOUND IT UNNECESSARY TO REACH THAT QUESTION,
DECIDING RATHER TO ABSTAIN IN FAVOR OF THE STATE CRIMINAL PROCEEDINGS. 

IN ADDITION TO ATTACKING THE STATUTE AS VOID ON ITS FACE FOR
OVERBREADTH, APPELLANTS ALLEGED THAT THEIR ARRESTS WERE MADE AND
PROSECUTIONS INSTITUTED FOR PURPOSES OF HARASSMENT AND IN A
DISCRIMINATORY MANNER ON ACCOUNT OF THEIR POLITICAL BELIEFS.  /3/
APPELLEES IN THEIR ANSWER DENIED THESE ALLEGATIONS AND ATTACHED COPIES
OF THE COMPLAINTS FILED IN THE STATE CRIMINAL PROCEEDINGS WHICH ALLEGED
THAT APPELLANTS WERE INTERFERING WITH CLASSES OR INTERVIEWS IN THE
BUILDINGS BY SPEAKING IN LOUD VOICES OR BY REFUSING TO LEAVE WHEN
REQUESTED TO DO SO. 

WE STATED IN DOMBROWSKI V. PFISTER, 380 U.S. 479, 489-490, THAT THE
ABSTENTION DOCTRINE IN INAPPROPRIATE FOR CASES IN WHICH STATE STATUTES
ARE JUSTIFIABLY CHALLENGED EITHER ON THEIR FACE OF "AS APPLIED FOR THE
PURPOSE OF DISCOURAGING PROTECTED ACTIVITIES."  IN MY VIEW, APPELLANTS
HAVE ADEQUATELY ALLEGED IN THEIR COMPLAINT THAT THEIR ARRESTS AND
PROSECUTIONS WERE EFFECTED IN BAD FAITH AND IN A DISCRIMINATORY MANNER
IN ORDER TO PUNISH AND DISCOURAGE EXERCISE OF CONSTITUTIONALLY
PROTECTED RIGHTS.  SINCE AN ISSUE OF FACT IS PRESENTED, I WOULD REMAND
TO THE COURT BELOW WITH DIRECTIONS TO CONDUCT A PLENARY HEARING ON THE
POINT.  /4/ 

APPELLANTS HAVE ALLEGED IN THEIR COMPLAINT FACTS SURROUNDING THEIR
ARRESTS WHICH SUGGEST HARASSMENT SOLELY ON ACCOUNT OF THE NATURE OF
APPELLANTS' PROTEST.  /5/  MOREOVER, THE CRIMINAL COMPLAINTS FILED
AGAINST SEVERAL OF THE APPELLANTS IN THE STATE COURT, AND APPENDED TO
THE APPELLEES' ANSWER IN THIS CASE, RAISE A STRONG SUSPICION THAT THE
ARRESTS AND PROSECUTIONS WERE CARRIED OUT IN BAD FAITH.  /6/ 

WHERE THERE ARE ALLEGATIONS OF BAD FAITH, HARASSMENT, AND
DISCRIMINATION, CRITICAL EVIDENCE ON THE MATTER CAN ONLY BE DRAWN OUT
UPON CROSS-EXAMINATION OF THE OFFICIALS INVOLVED.  THE QUESTION IS NOT
THE GUILT OR INNOCENCE OF THE PERSONS CHARGED, BUT WHETHER THEIR
ARRESTS WERE MADE AND PROSECUTIONS COMMENCED IN BAD FAITH, FOR PURPOSES
OF HARASSMENT AND IN A DISCRIMINATORY MANNER.  SEE CAMERON V. JOHNSON,
390 U.S. 611, 619-620, 621.  IF THE CHARGE THAT THE STATUTE WAS USED IN
BAD FAITH WERE SHOWN, A FEDERAL CLAIM WOULD BE ESTABLISHED.  /7/  AND
IT WOULD NOT MATTER WHAT THE STATE COURTS LATER DID, FOR THE INTERIM
"CONTINUING HARASSMENT" OF APPELLANTS FOR EXERCISING THEIR FIRST
AMENDMENT RIGHTS WOULD ENTITLE THEM TO RELIEF.  SEE DOMBROWSKI V.
PFISTER, 380 U.S.,AT 490. 

FOR THESE REASONS I WOULD NOTE PROBABLE JURISDICTION, VACATE THE
JUDGMENT BELOW, AND REMAND THE CASE FOR A PRELIMINARY HEARING ON THE
ISSUE OF THE USE OF A DISORDERLY CONDUCT STATUTE TO PUNISH PEOPLE FOR
EXPRESSION OF THEIR UNPOPULAR VIEWS. 

/1/  WIS. STAT. SEC. 947.01 READS IN PERTINENT PART: 

"947.01.  DISORDERLY CONDUCT.  WHOEVER DOES ANY OF THE FOLLOWING MAY
BE FINED NOT MORE THAN $100 OR IMPRISONED NOT MORE THAN 30 DAYS:  (1)
IN A PUBLIC OR PRIVATE PLACE, ENGAGES IN VIOLENT, ABUSIVE, INDECENT,
PROFANE, BOISTEROUS, UNREASONABLY LOUD, OR OTHERWISE DISORDERLY CONDUCT
UNDER CIRCUMSTANCES IN WHICH SUCH CONDUCT TENDS TO CAUSE OR PROVOKE A
DISTURBANCE . . . " 

/2/  28 U.S.C. 2283 PROVIDES: 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

/3/  PARAGRAPHS 12 AND 13 OF APPELLANTS' COMPLAINT ALLEGED: 

"PLAINTIFFS ALLEGE THAT THEIR ARREST UNDER THIS STATUTE IS BASICALLY
FOR THE UNLAWFUL PURPOSE OF DEPRIVING THEM OF THEIR RIGHTS OF FREEDOM
OF SPEECH, ASSEMBLY, ASSOCIATION, AND PETITIONING THEIR GOVERNMENT FOR
A REDRESS OF GRIEVANCES GUARANTEED BY THE FIRST AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND 42 U.S.C. 1983. 
FURTHER ENFORCEMENT OF SECTION 947.01, WISCONSIN STATUTES, THE
DISORDERLY CONDUCT STATUTE, WILL HAVE THE EFFECT OF PUNISHING THOSE
PLAINTIFFS NOW BEING PROSECUTED FOR THE EXERCISE OF RIGHTS, PRIVILEGES
AND IMMUNITIES SECURED TO THEM BY THE CONSTITUTION AND LAWS OF THE
UNITED STATES; HAS (SIX) AND WILL DETER PLAINTIFFS AND OTHERS SIMILARLY
SITUATED FROM THE FUTURE EXERCISE OF THESE RIGHTS, PRIVILEGES AND
IMMUNITIES; HAS ENCOURAGED AND WILL ENCOURAGE DEFENDANTS AND OTHER
STATE, COUNTY OR LOCAL OFFICIALS, ACTING UNDER COLOR OF LAW, TO ENGAGE
IN FURTHER ACTS OF INTIMIDATION, HARASSMENT, THREATS AND OTHER ACTIONS
MEANT TO PREVENT AND DETER PLAINTIFFS AND OTHERS SIMILARLY SITUATED
FROM THE EXERCISE OF THESE RIGHTS, PRIVILEGES, AND IMMUNITIES. 

        .          .          .          . 

"PLAINTIFFS ALLEGE THAT THEIR ARRESTS AND PROSECUTIONS HAVE BEEN AND
ARE BEING CARRIED ON WITH THE BASIC PURPOSE AND EFFECTS OF INTIMIDATING
AND HARASSING THEM AND PUNISHING THEM FOR AND DETERRING THEM FROM,
EXERCISE OF THEIR CONSTITUTIONALLY PROTECTED RIGHTS OF FREE SPEECH AND
ASSEMBLY AND ASSOCIATION TO: 

"1.  OPPOSE AND PROTEST THE POLICIES OF THE UNITED STATES
GOVERNMENT, THE STATE OF WISCONSIN, AND THE UNIVERSITY OF WISCONSIN IN
SUPPORTING AND CONTRIBUTING TO THE WAR EFFORT IN VIETNAM; 

"2.  OPPOSE AND PROTEST THE FOREIGN POLICY OF THE UNITED STATES; 

"3.  OR OTHERWISE PUBLICLY EXPRESS UNPOPULAR AND UNORTHODOX VIEWS ON
PUBLIC ISSUES OF VITAL CONCERN.  "THIS INTIMIDATION AND HARASSMENT OF
PLAINTIFFS IS PURSUANT TO A POLICY OF POLITICAL DISCRIMINATION WHICH IS
ENCOURAGED, FOLLOWED AND ENFORCED BY LEGISLATION INCLUDING THE
DISORDERLY CONDUCT STATUTE, SECTION 947.01 OF THE WISCONSIN STATUTES,
AND BY ACTION OF THE EXECUTIVE OR JUDICIAL BRANCHES OF THE STATE OF
WISCONSIN.  THE DISORDERLY CONDUCT STATUTE, 947.01, WISCONSIN STATUTES,
IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED.  IT PERMITS AND
ENCOURAGES WISCONSIN EXECUTIVE OR JUDICIAL OFFICIALS TO DISCRIMINATE
AGAINST PLAINTIFFS AND OTHERS SIMILARLY SITUATED BY REASON OF POLITICAL
BELIEFS AND IDEAS, AND TO INTIMIDATE AND HARASS BY ARREST, DETENTION,
BRUTALITY, EXCESSIVE BAIL AND PROSECUTION OR THE THREAT THEREOF,
PLAINTIFFS OR ALL WHO EXERCISE THEIR RIGHTS OF FREE SPEECH, ASSEMBLY,
ASSOCIATION AND PETITIONING THEIR GOVERNMENT FOR REDRESS OF GRIEVANCES
TO EXPRESS UNPOPULAR OR UNORTHODOX VIEWS ON PUBLIC ISSUES OF VITAL
CONCERN OR TO PROTEST AND OPPOSE CERTAIN POLICIES OF THE UNITED STATES,
THE STATE OF WISCONSIN OR THE UNIVERSITY OF WISCONSIN ON VITAL PUBLIC
ISSUES, CONTRARY TO THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES." 

/4/ WHETHER SEC. 2283 CONSTITUTES A BAR TO ISSUANCE OF AN INJUNCTION
IS A QUESTION THE COURT HAS REFRAINED FROM DECIDING IN CIRCUMSTANCES
WHER IT APPEARS THAT AN INJUNCTION MIGHT BE IMPROPER ON OTHER GROUNDS. 
SEE CAMERON V. JOHNSON, 390 U.S. 611, 613, N. 3 (MAJORITY OPINION),
628, N. 5 (DISSENTING OPINION). 

/5/  THE COMPLAINT ALLEGES THAT APPELLANT COHEN ATTEMPTED TO ENTER
THE UNIVERSITY'S COMMERCE BUILDING CARRYING SIGNS PROTESTING THE USE OF
NAPALM IN VIETNAM AND THE UNIVERSITY'S POLICY PERMITTING A CHEMICAL
MANUFACTURER OF NAPALM TO CONDUCT EMPLOYMENT INTERVIEWS IN THE
BUILDING.  COHEN, WHO WAS ALONE, WAS STOPPED JUST INSIDE THE DOOR BY
POLICE OFFICERS AND TOLD HE COULD NOT ENTER THE BUILDING WITH SIGNS. 
HE ATTEMPTED TO ENTER WITH THE SIGNS AND WAS GRABBED BY AN OFFICER AND
PUSHED AWAY.  APPELLEE HANSEN (CHIEF OF THE UNIVERSITY'S DEPARTMENT OF
PROTECTION AND SECURITY) WAS SUMMONED.  HE ALLEGEDLY GRABBED COHEN'S
SIGNS AND THREW THEM OUT THE DOOR INTO THE SNOW.  WHEN COHEN ASKED WHY
HE DID THAT, HANSEN ALLEGEDLY REPLIED, "BECAUSE YOU MAKE ME NERVOUS ALL
THE TIME, YOU MAKE ME NERVOUS."  HANSEN THEN ALLEGEDLY JOSTLED COHEN
AND STATED, "I DON'T LIKE YOU."  COHEN AND HANSEN THEN MOVED TO A POINT
IN THE BUILDING WHERE SOME OTHER STUDENTS, INCLUDING APPELLANT ZWICKER,
WERE CONDUCTING A DISCUSSION.  COHEN TOLD THE GROUP THAT HIS SIGNS HAD
BEEN DESTROYED; OTHER SIGNS APPEARED AND ONE WAS HANDED TO COHEN. 
HANSEN ALLEGEDLY BEGAN YELLING THAT PEOPLE COULD NOT TALK IN THE
BUILDING AND COULD NOT HAVE SIGNS, AND THEN BEGAN TEARING UP THE
SIGNS.  SOME JOSTLING AND SHOVING APPARENTLY ENSUED AS POLICE ALLEGEDLY
ATTEMPTED TO GRAB THE SIGNS.  ANOTHER UNIVERSITY OFFICIAL THEN TOLD
COHEN TO LEAVE THE BUILDING.  WHEN COHEN ASKED WHAT REGULATION OF THE
UNIVERSITY HE HAD BROKEN, THE OFFICIAL ALLEGEDLY REPLIED, "I DON'T
KNOW, BUT THE LOOKS OF YOU IS ENOUGH."  COHEN WAS THEN ARRESTED AND
TAKEN FROM THE BUILDING. 

/6/  THESE DOCUMENTS SUGGEST THAT THE ARRESTS MAY HAVE BEEN MADE
BECAUSE THE APPELLANTS WERE A NUISANCE TO THE UNIVERSITY RATHER THAN
BECAUSE OF "DISORDERLY CONDUCT UNDER CIRCUMSTANCES IN WHICH SUCH
CONDUCT TENDS TO CAUSE OR PROVOKE A DISTURBANCE."  WIS. STAT. SEC.
947.01(1). 

FOR EXAMPLE, WHILE THE COMPLAINT AGAINST APPELLANT WEBB FORMALLY
CHARGES DISORDERLINESS AND TENDENCY TO CAUSE A DISTURBANCE, NOTHING IN
THE COMPLAINT'S STATEMENT OF "ESSENTIAL FACTS" SUPPORTS THE CHARGE. 
THE COMPLAINT ALLEGES THAT WEBB "WAS ENGAGED IN A PROTEST DEMONSTRATION
IN THE CHEMICAL ENGINEERING BUILDING ON THE UNIVERSITY OF WISCONSIN
MADISON CAMPUS.  DEFENDANT WAS SITTING IN AN INTERVIEW ROOM INTERFERING
WITH INTERVIEWS WHICH WERE BEING CONDUCTED FOR THE STUDENTS OF THE
UNIVERSITY FOR PROSPECTIVE EMPLOYMENT.  DEFENDANT WAS ASKED TO LEAVE
SEVERAL TIMES AND REFUSED."  OTHER COMPLAINTS ALLEGED SIMILAR FACTS;
STILL OTHERS ALLEGED THAT CERTAIN APPELLANTS SPOKE IN LOUD VOICES AND
THEREBY DISRUPTED CLASSES, LANGUAGE WHICH MIGHT COME WITHIN THE SCOPE
OF SEC. 947.01(1) ("UNREASONABLY LOUD . . . CONDUCT (TENDING) TO CAUSE
OR PROVOKE A DISTURBANCE").  BUT IF APPELLANTS CAN DEMONSTRATE AT AN
EVIDENTIARY HEARING THAT, AS THEY ALLEGE, THE STATUTE HAS BEEN
PURPOSEFULLY OR INTENTIONALLY ENFORCED AGAINST THEM IN A DISCRIMINATORY
MANNER TO SUPPRESS THE IDEAS WHICH THEY ESPOUSE, APPELLANTS COULD NOT
CONSTITUTIONALLY BE CONVICTED.  SEE SNOWDEN V. HUGHES, 321 U.S. 1;
NOTE, DISCRIMINATORY LAW ENFORCEMENT AND EQUAL PROTECTION FROM THE LAW,
59 YALE L.J. 354 (1950).  CF. BROWN V. LOUISIANA, 383 U.S. 131, 141
142.  AND SEE PEOPLE V. DARCY, 59 CAL.APP.2D 342, 360, 139 P.2D 118,
129 (CAL.DIST.CT.APP.  1943) (DISSENTING OPINION).  ("IT IS MUCH BETTER
FOR SOCIETY THAN AN ACCUSED SHOULD GO FREE, THAN FOR OUR CRIMINAL
PROCESSES TO BE POLLUTED BY PROSECUTIONS FOUNDED ON PREJUDICE AGAINST
AND HATRED FOR THE POLITICAL BELIEFS OF THE ACCUSED.") 

/7/  42 U.S.C. 1983 PROVIDES: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

MELVYN ZARR, WILLIAM M. KUNSTLER, AND ANTHONY G. AMSTERDAM FOR
APPELLANTS. 

BRONSON C. LAFOLLETTE, ATTORNEY GENERAL OF WISCONSIN, AND WILLIAM A.
PLATZ, THOMAS A. LOCKYEAR, AND CHARLES A. BLECK, ASSISTANT ATTORNEYS
GENERAL, FOR APPELLEES. 
..END :























SEFERI V. IVES, 391 U.S. 359 


       SEFERI ET AL. V. IVES, STATE HIGHWAY COMMISSIONER. 

        APPEAL FROM THE SUPREME COURT OF CONNECTICUT. 

        NO. 1241.  DECIDED MAY 20, 1968. 


155 CONN. 580, 236 A.2D 83, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

ALBERT L. COLES FOR APPELLANTS. 

ROBERT K. KILLIAN, ATTORNEY GENERAL OF CONNECTICUT, AND JACK RUBIN
AND CLEMENT J. KICHUK, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEE. 
..END :










NORTH AMERICAN VAN LINES V. UNITED STATES, 391 U.S. 359 


       NORTH AMERICAN VAN LINES, INC. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF INDIANA. 

 NO. 1295.  DECIDED MAY 20, 1968. 


277 F.SUPP.  741, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MARTIN A. WEISSERT FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL TURNER,
ROBERT W. GINNANE, AND BETTY JO CHRISTIAN FOR THE UNITED STATES ET AL.,
AND ALAN F. WHOLSTETTER FOR SMYTH OVERSEAS VAN LINES, INC., ET AL.,
APPELLEES. 
..END :







GOLDBLATT V. CITY OF DALLAS, 391 U.S. 360 


       GOLDBLATT V. CITY OF DALLAS. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF TEXAS. 

        NO. 1317.  DECIDED MAY 20, 1968. 


279 F.SUPP.  106, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 

JOSEPH A. DEVANY FOR APPELLANT. 

N. ALEX BICKLEY, TED P. MACMASTER, AND H. P. KUCERA FOR APPELLEE. 
..END :









HOWARD V. OHIO, 391 U.S. 360 


       HOWARD V. OHIO. 

        APPEAL FROM THE SUPREME COURT OF OHIO. 

        NO. 1217, MISC.  DECIDED MAY 20, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION OT DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

NEIL K. EVANS FOR APPELLANT. 

JOHN T. CORRIGAN FOR APPELLEE. 
..END :







BROOKS V. BRILEY, 391 U.S. 361 


       BROOKS ET AL. V. BRILEY, MAYOR OF NASHVILLE, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF TENNESSEE. 

NO. 1285, MISC.  DECIDED MAY 20, 1968. 


274 F.SUPP.  538, AFFIRMED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
MOTION TO AFFIRM IS ALSO GRANTED AND THE JUDGMENT IS AFFIRMED.  CAMERON
V. JOHNSON, 390 U.S. 611. 

MR. JUSTICE DOUGLAS DISSENTS. 

WILLIAM M. KUNSTLER, ARTHUR KINOY, HOWARD MOORE, JR., AND MORTON
STAVIS FOR APPELLANTS. 

GEORGE F. MCCANLESS, ATTORNEY GENERAL OF TENNESSEE, THOMAS E. FOX,
ASSISTANT ATTORNEY GENERAL, EDWIN F. HUNT, AND ROBERT E. KENDRICK FOR
APPELLEES. 
..END :



JACKSON V NELSON, 391 U.S. 361 


       JACKSON V. NELSON, WARDEN. 

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 1446, MISC.   DECIDED MAY 20, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














WALKER V. CALIFORNIA, 391 U.S. 362 


       WALKER V. CALIFORNIA. 

        APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN

           FRANCISCO. 

        NO. 1392, MISC.  DECIDED MAY 20, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









RUBECK V. NEW YORK, 391 U.S. 362 


       RUBECK V. NEW YORK. 

        APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF

           NEW YORK, FOURTH JUDICIAL DEPARTMENT. 

        NO. 1536, MISC.  DECIDED MAY 20, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

BRUCE K. CARPENTER FOR APPELLANT. 

MICHAEL F. DILLON FOR APPELLEE. 
..END :








FEDERAL POWER COMM. V. PAN AMERICAN PETROLEUM CORP., 391 U.S. 363 


       FEDERAL POWER COMMISSION V. PAN AMERICAN PETROLEUM CORP. ET

           AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT. 

        NO. 227.  DECIDED MAY 20, 1968.  /1/ 


CERTIORARI GRANTED; 376 F.2D 161, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED AND THE JUDGMENTS
ARE VACATED.  THE CASES ARE REMANDED TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF
FEDERAL POWER COMMISSION V. SUNRAY DX OIL CO., ANTE, P. 9. 

/1/  TOGETHER WITH NO. 415, LONG ISLAND LIGHTING CO. ET AL. V. PAN
AMERICAN PETROLEUM CORP. ET AL., ALSO ON PETITION FOR WRIT OF
CERTIORARI TO THE SAME COURT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

SOLICITOR GENERAL MARSHALL, RICHARD A. SOLOMON, PETER H. SCHIFF, AND
JOEL YOHALEM FOR PETITIONER IN NO. 227.  BERTRAM D. MOLL AND MORTON L.
SIMONS FOR LONG ISLAND LIGHTING CO., SAMUEL GRAFF MILLER FOR
PHILADELPHIA ELECTRIC CO., AND KENT H. BROWN FOR PUBLIC SERVICE
COMMISSION OF THE STATE OF NEW YORK, PETITIONERS IN NO. 415. 

J. P. HAMMOND, WILLIAM J. GROVE, CARROLL L. GILLIAM, AND PHILIP R.
EHRENKRANZ FOR PAN AMERICAN PETROLEUM CORP., CECIL N. COOK AND NEAL
POWERS, JR., FOR COCKRELL ET AL., CECIL E. MUNN FOR GENERAL AMERICAN
OIL CO. OF TEXAS, BRUCE R. MERRILL AND THOMAS H. BURTON FOR CONTINENTAL
OIL CO., H. H. HILLYER, JR., FOR J. RAY MCDERMOTT & CO., INC., OLIVER
L. STONE AND THOMAS G. JOHNSON FOR SHELL OIL CO., MURRAY CHRISTIAN AND
H. W. VARNER FOR SUPERIOR OIL CO., AND PAUL W. HICKS, ROBERT W.
HENDERSON, AND DONALD K. YOUNG FOR PLACID OIL CO. ET AL., RESPONDENTS
IN BOTH CASES. 
..END :







BRANIGIN V. DUDDLESTON, 391 U.S. 364 


       BRANIGIN ET AL. V. DUDDLESTON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

  SOUTHERN DISTRICT OF INDIANA. 

        NO. 1252.  DECIDED MAY 20, 1968.  /1/ 


284 F.SUPP.  176, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

/1/  TOGETHER WITH NO. 1263, SUMMERS V. DUDDLESTON ET AL., ALSO ON
APPEAL FROM THE SAME COURT. 

MR. JUSTICE HARLAN, FOR REASONS CONTAINED IN HIS MEMORANDUM OF MARCH
4, 1968 (390 U.S. 932, SUB NOM.  BRANIGIN V. GRILLS), IN WHICH HE
ACQUIESCED IN THE DENIAL OF STAYS OF ENFORCEMENT OF THE DISTRICT
COURT'S JUDGMENT, ALSO ACQUIESCES IN THE COURT'S AFFIRMANCE OF THAT
JUDGMENT. 

JOHN J. DILLON, ATTORNEY GENERAL OF INDIANA, AND CHARLES S. WHITE
FOR APPELLANTS IN NO. 1252.  MARSHALL F. KIZER FOR APPELLANT IN NO.
1263. 

LESLIE DUVALL AND WILLIAM H. SPARRENBERGER FOR APPELLEES IN BOTH
CASES. 
..END :




















CALIFORNIA V. PHILLIPS PETROLEUM CO., 391 U.S. 365 


       CALIFORNIA ET AL. V. PHILLIPS PETROLEUM CO. ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT. 

        NO. 373.  DECIDED MAY 20, 1968.  /1/ 


CERTIORARI GRANTED; 377 F.2D 278, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED AND THE JUDGMENTS
ARE VACATED.  THE CASES ARE REMANDED TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF THE
PERMIAN BASIN AREA RATE CASES, 390 U.S. 747. 

/1/  TOGETHER WITH NO. 380, PACIFIC GAS & ELECTRIC CO. ET AL. V.
PHILLIPS PETROLEUM CO. ET AL., AND NO. 385, FEDERAL POWER COMMISSION V.
PHILLIPS PETROLEUM CO. ET AL., ALSO ON PETITIONS FOR WRITS OF
CERTIORARI TO THE SAME COURT. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

MARY MORAN PAJALICH AND J. CALVIN SIMPSON FOR PETITIONERS IN NO.
373.  FREDERICK T. SEARLS AND MALCOLM H. FURBUSH FOR PACIFIC GAS &
ELECTRIC CO., C. HAYDEN AMES FOR SAN DIEGO GAS & ELECTRIC CO., AND JOHN
ORMASA FOR SOUTHERN CALIFORNIA GAS CO. ET AL., PETITIONERS IN NO. 380. 
SOLICITOR GENERAL MARSHALL AND RICHARD A. SOLOMON FOR PETITIONER IN NO.
385. 

TOM P. HAMILL, R. D. HAWORTH, JAMES L. ARMOUR, WILLIAM H. TABB, AND
CARROLL L. GILLIAM FOR RESPONDENT MOBIL OIL CORP. IN ALL THREE CASES. 
..END :













BROOKLYN UNION GAS CO. V. STANDARD OIL CO. OF TEXAS, 391 U.S. 366 


       BROOKLYN UNION GAS CO. ET AL. V. STANDARD OIL CO. OF TEXAS

           ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE TENTH CIRCUIT. 

        NO. 503.  DECIDED MAY 20, 1968. 


CERTIORARI GRANTED; 376 F.2D 578, REVERSED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  FEDERAL POWER COMMISSION V. SUNRAY DX OIL CO., ANTE, P. 9. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

EDWIN F. RUSSELL AND BARBARA M. SUCHOW FOR BROOKLYN UNION GAS CO.,
BERTRAM D. MOLL AND MORTON L. SIMONS FOR LONG ISLAND LIGHTING CO., AND
KENT H. BROWN FOR PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK,
PETITIONERS. 

MARTIN N. ERCK AND FRANK S. TROIDL FOR RESPONDENT HUMBLE OIL &
REFINING CO.; THOMAS G. CROUCH, ROBERT W. HENDERSON, AND DONALD K.
YOUNG FOR RESPONDENT HUNT; SHERMAN S. POLAND FOR RESPONDENT COATES;
ROBERT V. SMITH FOR RESPONDENT PATCHIN-WILMOTH INDUSTRIES, INC.; J.
EVANS ATTWELL AND W. H. DRUSHEL, JR., FOR RESPONDENT CLARK FUEL
PRODUCING CO; WILLIAM K. TELL, JR., WILLIAM R. SLYE, AND JAMES D.
ANNETT FOR RESPONDENT TEXACO INC.; PHILLIP D. ENDOM, ROBERT E. MAY, AND
FRANCIS H. CASKIN FOR RESPONDENT SUN OIL CO.; HOMER E. MCEWEN, JR., FOR
RESPONDENT SUNRAY DX OIL CO.; RICHARD F. REMMERS FOR RESPONDENT SOHIO
PETROLEUM CO.; AND KIEL BOONE FOR RESPONDENT COX. 
..END :













MATHIS V. UNITED STATES, 391 U.S. 1 


       MATHIS V. UNITED STATES

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 726.  ARGUED APRIL 2-3, 1968.-- DECIDED MAY 6, 1968. 


PETITIONER, WHO WAS IN A STATE PRISON, WAS QUESTIONED BY AN INTERNAL
REVENUE SERVICE INVESTIGATOR ABOUT CERTAIN TAX RETURNS IN A "ROUTINE
TAX INVESTIGATION," WITHOUT ANY WARNINGS THAT ANY EVIDENCE HE GAVE
COULD BE USED AGAINST HIM, THAT HE HAD A RIGHT TO REMAIN SILENT, AND A
RIGHT TO COUNSEL, OR THAT ONE WOULD BE APPOINTED FOR HIM IF HE WAS
UNABLE TO AFFORD COUNSEL.  DOCUMENTS AND ORAL STATEMENTS OBTAINED FROM
PETITIONER WERE INTRODUCED IN HIS CRIMINAL TRIAL FOR FILING FALSE
CLAIMS FOR TAX REFUNDS.  HE WAS CONVICTED AND HIS CONVICTION WAS
AFFIRMED BY THE COURT OF APPEALS.  HELD:  PURSUANT TO MIRANDA V. UNITED
STATES, 384 U.S. 456 (1966), PETITIONER WAS ENTITLED TO WARNINGS OF HIS
RIGHT TO BE SILENT AND RIGHT TO COUNSEL.  TAX INVESTIGATIONS, WHICH
FREQUENTLY LEAD TO CRIMINAL PROSECUTION, ARE NOT IMMUNE FROM THE
MIRANDA WARNING REQUIREMENT TO BE GIVEN TO A PERSON IN CUSTODY, WHETHER
OR NOT SUCH CUSTODY IS IN CONNECTION WITH THE CASE UNDER
INVESTIGATION.  PP. 3-5. 

376 F.2D 595, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED BY A JURY IN A UNITED STATES DISTRICT COURT
ON TWO COUNTS CHARGING THAT HE KNOWINGLY FILED FALSE CLAIMS AGAINST THE
GOVERNMENT IN VIOLATION OF 18 U.S.C. 287 /1/  AND SENTENCED TO 30
MONTHS' IMPRISONMENT ON EACH COUNT, THE SENTENCES TO RUN CONCURRENTLY. 
THE FRAUDS CHARGED WERE CLAIMS FOR TAX REFUNDS GROWING OUT OF
PETITIONER'S INDIVIDUAL INCOME TAXES FOR 1960 AND 1961.  BOTH INCOME
TAX RETURNS FOR THESE TWO YEARS ASSERTED RECEIPTS OF INCOME FROM TWO
DIFFERENT COMPANIES WHICH THE GOVERNMENT AGENTS WERE UNABLE TO LOCATE
AND WHICH EVIDENCE OFFERED TENDED TO SHOW WERE NONEXISTENT.  THE AMOUNT
OF INCOME CLAIMED IN EACH TAX RETURN WAS CALCULATED IN SUCH A WAY AS TO
SHOW THAT THESE TWO NONEXISTENT EMPLOYERS HAD WITHHELD TAXES SUFFICIENT
TO JUSTIFY SUBSTANTIAL REFUNDS TO PETITIONER.  THE GOVERNMENT PAID THE
1960 TAX REFUND TO PETITIONER OF $885.60 AS CLAIMED, BUT THE RECORD
FAILS TO SHOW WHETHER THE 1961 CLAIMED REFUND WAS PAID.  A PART OF THE
EVIDENCE ON WHICH THE CONVICTION RESTED CONSISTED OF DOCUMENTS AND ORAL
STATEMENTS OBTAINED FROM PETITIONER BY A GOVERNMENT AGENT WHILE
PETITIONER WAS IN PRISON SERVING A STATE SENTENCE.  BEFORE ELICITING
THIS INFORMATION, THE GOVERNMENT AGENT DID NOT WARN PETITIONER THAT ANY
EVIDENCE HE GAVE THE GOVERNMENT COULD BE USED AGAINST HIM, AND THAT HE
HAD A RIGHT TO REMAIN SILENT IF HE DESIRED AS WELL AS A RIGHT TO THE
PRESENCE OF COUNSEL AND THAT IF HE WAS UNABLE TO AFFORD COUNSEL ONE
WOULD BE APPOINTED FOR HIM.  AT TRIAL PETITIONER SOUGHT SEVERAL TIMES
WITHOUT SUCCESS TO HAVE THE JUDGE HOLD HEARINGS OUT OF THE PRESENCE OF
THE JURY TO PROVE THAT HIS STATEMENTS TO THE REVENUE AGENT WERE GIVEN
WITHOUT THESE WARNINGS AND SHOULD THEREFORE NOT BE USED AS EVIDENCE
AGAINST HIM.  FOR THIS CONTENTION HE RELIED EXCLUSIVELY ON OUR CASE OF
MIRANDA V. ARIZONA, 384 U.S. 436 (1966).  THE DISTRICT COURT REJECTED
THIS CONTENTION AS DID THE COURT OF APPEALS IN AFFIRMING.  376 F.2D
595.  WE GRANTED CERTIORARI TO DECIDE WHETHER THE MIRANDA CASE CALLS
FOR REVERSAL.  WE HOLD THAT IT DOES. 

THERE CAN BE NO DOUBT THAT THE DOCUMENTS AND ORAL STATEMENTS GIVEN
BY PETITIONER TO THE GOVERNMENT AGENT AND USED AGAINST HIM WERE
STRONGLY INCRIMINATING.  /2/  IN THE MIRANDA CASE THIS COURT'S OPINION
STATED AT SOME LENGTH THE CONSTITUTIONAL REASONS WHY ONE IN CUSTODY WHO
IS INTERROGATED BY OFFICERS ABOUT MATTERS THAT MIGHT TEND TO
INCRIMINATE HIM IS ENTITLED TO BE WARNED "THAT HE HAS THE RIGHT TO
REMAIN SILENT, THAT ANYTHING HE SAYS CAN BE USED AGAINST HIM IN A COURT
OF LAW, THAT HE HAS THE RIGHT TO THE PRESENCE OF AN ATTORNEY, AND THAT
IF HE CANNOT AFFORD AN ATTORNEY ONE WILL BE APPOINTED FOR HIM PRIOR TO
ANY QUESTIONING IF HE SO DESIRES."  384 U.S.,AT 479.  THE GOVERNMENT
HERE SEEKS TO ESCAPE APPLICATION OF THE MIRANDA WARNINGS ON TWO
ARGUMENTS:  (1) THAT THESE QUESTIONS WERE ASKED AS A PART OF A ROUTINE
TAX INVESTIGATION WHERE NO CRIMINAL PROCEEDINGS MIGHT EVEN BE BROUGHT,
AND (2) THAT THE PETITIONER HAD NOT BEEN PUT IN JAIL BY THE OFFICERS
QUESTIONING HIM, BUT WAS THERE FOR AN ENTIRELY SEPARATE OFFENSE.  THESE
DIFFERENCES ARE TOO MINOR AND SHADOWY TO JUSTIFY A DEPARTURE FROM THE
WELL-CONSIDERED CONCLUSIONS OF MIRANDA WITH REFERENCE TO WARNINGS TO BE
GIVEN TO A PERSON HELD IN CUSTODY. 

IT IS TRUE THAT A "ROUTINE TAX INVESTIGATION" MAY BE INITIATED FOR
THE PURPOSE OF A CIVIL ACTION RATHER THAN CRIMINAL PROSECUTION.  TO
THIS EXTENT TAX INVESTIGATIONS DIFFER FROM INVESTIGATIONS OF MURDER,
ROBBERY, AND OTHER CRIMES.  BUT TAX INVESTIGATIONS FREQUENTLY LEAD TO
CRIMINAL PROSECUTIONS, JUST AS THE ONE HERE DID.  IN FACT, THE LAST
VISIT OF THE REVENUE AGENT TO THE JAIL TO QUESTION PETITIONER TOOK
PLACE ONLY EIGHT DAYS BEFORE THE FULL-FLEDGED CRIMINAL INVESTIGATION
CONCEDEDLY BEGAN.  AND, AS THE INVESTIGATING REVENUE AGENT WAS
COMPELLED TO ADMIT, THERE WAS ALWAYS THE POSSIBILITY DURING HIS
INVESTIGATION THAT HIS WORK WOULD END UP IN A CRIMINAL PROSECUTION.  WE
REJECT THE CONTENTION THAT TAX INVESTIGATIONS ARE IMMUNE FROM THE
MIRANDA REQUIREMENTS FOR WARNINGS TO BE GIVEN A PERSON IN CUSTODY. 

THE GOVERNMENT ALSO SEEKS TO NARROW THE SCOPE OF THE MIRANDA HOLDING
BY MAKING IT APPLICABLE ONLY TO QUESTIONING ONE WHO IS "IN CUSTODY" IN
CONNECTION WITH THE VERY CASE UNDER INVESTIGATION.  THERE IS NO
SUBSTANCE TO SUCH A DISTINCTION, AND IN EFFECT IT GOES AGAINST THE
WHOLE PURPOSE OF THE MIRANDA DECISION WHICH WAS DESIGNED TO GIVE
MEANINGFUL PROTECTION TO FIFTH AMENDMENT RIGHTS.  WE FIND NOTHING IN
THE MIRANDA OPINION WHICH CALLS FOR A CURTAILMENT OF THE WARNINGS TO BE
GIVEN PERSONS UNDER INTERROGATION BY OFFICERS BASED ON THE REASON WHY
THE PERSON IS IN CUSTODY.  IN SPEAKING OF "CUSTODY" THE LANGUAGE OF THE
MIRANDA OPINION IS CLEAR AND UNEQUIVOCAL: 

     "TO SUMMARIZE, WE HOLD THAT WHEN AN INDIVIDUAL IS TAKEN INTO

  CUSTODY OR OTHERWISE DEPRIVED OF HIS FREEDOM BY THE AUTHORITIES

  IN ANY SIGNIFICANT WAY AND IS SUBJECTED TO QUESTIONING, THE

  PRIVILEGE AGAINST SELF-INCRIMINATION IS JEOPARDIZED."  384

  U.S.,AT 478. 

AND THE OPINION GOES ON TO SAY THAT THE PERSON SO HELD MUST BE GIVEN
THE WARNINGS ABOUT HIS RIGHT TO BE SILENT AND HIS RIGHT TO HAVE A
LAWYER. 

THUS, THE COURTS BELOW WERE WRONG IN PERMITTING THE INTRODUCTION OF
PETITIONER'S SELF-INCRIMINATING EVIDENCE GIVEN WITHOUT WARNING OF HIS
RIGHT TO BE SILENT AND RIGHT TO COUNSEL.  THE CAUSE IS REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

IT IS SO ORDERED. 

/1/  18 U.S.C. 287 PROVIDES:  "WHOEVER MAKES OR PRESENTS TO ANY
PERSON OR OFFICER IN THE CIVIL, MILITARY, OR NAVAL SERVICE OF THE
UNITED STATES, OR TO ANY DEPARTMENT OR AGENCY THEREOF, ANY CLAIM UPON
OR AGAINST THE UNITED STATES, OR ANY DEPARTMENT OR AGENCY THEREOF,
KNOWING SUCH CLAIM TO BE FALSE, FICTITIOUS, OR FRAUDULENT, SHALL BE
FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR
BOTH." 

/2/  INTERNAL REVENUE AGENT LAWLESS TESTIFIED THAT ON OCTOBER 30,
1964, HE INTERVIEWED PETITIONER IN THE FLORIDA STATE PENITENTIARY TO
DETERMINE IF THE 1960 RETURN HAD BEEN PREPARED BY PETITIONER AND TO
OBTAIN PETITIONER'S CONSENT IN WRITING TO EXTEND THE STATUTE OF
LIMITATIONS ON THE 1960 RETURN.  AT THIS INTERVIEW PETITIONER
IDENTIFIED THE 1960 TAX RETURN AND THE SIGNATURE THEREON AS HIS; HE
ALSO SIGNED THE EXTENSION FORM.  AGAIN ON MARCH 2, 1965, AGENT LAWLESS
INTERVIEWED PETITIONER AT THE PENITENTIARY, AND THIS TIME PETITIONER
IDENTIFIED THE 1961 TAX RETURN AND SIGNATURE THEREON AS HIS AND SIGNED
AN EXTENSION FORM FOR THIS RETURN.  THE FIFTH AMENDMENT," 384 U.S.,AT
526, AND BECAUSE I DISAGREED WITH THE COURT'S "ASSESSMENT OF THE (NEW)
RULE'S CONSEQUENCES MEASURED AGAINST COMMUNITY VALUES," 384 U.S.,AT
537.  I CONTINUE TO BELIEVE THAT THE DECISION IN MIRANDA WAS AN
EXTRAVAGANT AND UNWISE INTERPRETATION OF THE FIFTH AMENDMENT, AND I
WOULD PREFER THAT MIRANDA BE ABANDONED, THUS AVOIDING THE REVERSAL OF
THIS CRIMINAL CONVICTION BECAUSE OF INTRODUCTION AT TRIAL OF STATEMENTS
BY THE PETITIONER THAT WERE UNQUESTIONABLY VOLUNTARY BY TRADITIONAL
STANDARDS BUT WERE MA-E WITHOUT THE PETITIONER'S HAVING RECEIVED THE SO
CALLED MIRANDA WARNINGS. 

HOWEVER, EVEN WERE I TO AGREE THAT MIRANDA WAS CORRECTLY DECIDED, I
WOULD NOT JOIN THE UNEXPLAINED EXTENSION WHICH THE COURT GIVES MIRANDA
IN THIS CASE.  AT ISSUE ARE TWO QUESTIONS /1/ ASKED OF PETITIONER BY AN
INTERNAL REVENUE AGENT IN THE COURSE OF A CIVIL INVESTIGATION.  THE
INTERVIEW WAS INDISTINGUISHABLE FROM THE THOUSANDS OF INQUIRIES INTO
TAX LIABILITY MADE ANNUALLY AS A NECESSARY ADJUNCT TO OPERATION OF OUR
TAX SYSTEM.  THE COURT SAID IN MIRANDA THAT "PROPER SAFEGUARDS" WERE
NEEDED FOR "IN-CUSTODY INTERROGATION OF PERSONS SUSPECTED OR ACCUSED OF
CRIME," 384 U.S.,AT 467.  IN THIS CASE THE MAJORITY STATES THAT
CRIMINAL INVESTIGATION OF MATHIS BEGAN SOON AFTER THE SECOND OF THE
VISITS TO HIM OF REVENUE AGENT LAWLESS.  THIS SUGGESTS A VIEW,
UNSUPPORTED BY THE RECORD BEFORE US, THAT THE CIVIL INVESTIGATION HAD
RAISED SUSPICIONS OF CRIMINAL CONDUCT BY MATHIS AT THE TIME OF THIS
VISIT.  /2/  HOWEVER, THE MAJORITY ALSO SAYS THAT "TAX INVESTIGATIONS
FREQUENTLY LEAD TO CRIMINAL PROSECUTIONS," A HINT THAT ANY IN-CUSTODY
QUESTIONING BY AN EMPLOYEE OF THE GOVERNMENT MUST BE PRECEDED BY
WARNINGS IF IT IS WITHIN THE IMMENSELY BROAD AREA OF INVESTIGATIONS
WHICH "FREQUENTLY LEAD" TO CRIMINAL INVESTIGATIONS WHICH "FREQUENTLY
LEAD" TO CRIMINAL INQUIRIES.  FORTUNATELY, VOLUNTARY COMPLIANCE WITH
CIVIL REGULATION IS WIDESPREAD IN THIS COUNTRY.  NEVERTHELESS,
COMPLIANCE MUST BE SUPPLEMENTED AND ENCOURAGED BY CONSTANT AND
WIDESPREAD INVESTIGATIONS, DURING WHICH QUESTIONS ARE ASKED AND DATA
ARE REQUESTED BY EMPLOYEES OF THE GOVERNMENT WHOSE GOAL IS ONLY TO
SETTLE FAIRLY THE CIVIL ACCOUNTS BETWEEN THE UNITED STATES AND ITS
CITIZENS.  SOMETIMES, OF COURSE, THE POSSIBILITY OF A CRIMINAL
VIOLATION IS DISCOVERED THROUGH SUCH INQUIRIES.  I HAD NOT THOUGHT THAT
MIRANDA EXTENDED ITS CHECKLIST OF WARNINGS TO THESE CIVIL
INVESTIGATIONS.  CERTAINLY THE EXPLANATION OF THE NEED FOR WARNINGS
GIVEN IN THE MIRANDA OPINION DOES NOT COVER CIVIL INVESTIGATIONS, AND
THE COURT'S OPINION IN THIS CASE FURNISHES NO ADDITIONAL SUPPORT. 

THE COURT IS EQUALLY CAVALIER IN CONCLUDING THAT PETITIONER WAS "IN
CUSTODY" IN THE SENSE IN WHICH THAT PHRASE WAS USED IN MIRANDA.  THE
STATE OF FLORIDA WAS CONFINING PETITIONER AT THE TIME HE ANSWERED AGENT
LAWLESS' QUESTIONS.  BUT MIRANDA RESTED NOT ON THE MERE FACT OF
PHYSICAL RESTRICTION BUT ON A CONCLUSION THAT COERCION-- PRESSURE TO
ANSWER QUESTIONS-- USUALLY FLOWS FROM A CERTAIN TYPE OF CUSTODY, POLICE
STATION INTERROGATION OF SOMEONE CHARGED WITH OR SUSPECTED OF A CRIME. 
ALTHOUGH PETITIONER WAS CONFINED, HE WAS AT THE TIME OF INTERROGATION
IN FAMILIAR SURROUNDINGS.  NEITHER THE RECORD NOR THE COURT SUGGESTS
REASONS WHY PETITIONER WAS "COERCED" INTO ANSWERING LAWLESS' QUESTIONS
ANY MORE THAN IS THE CITIZEN INTERVIEWED AT HOME BY A REVENUE AGENT OR
INTERVIEWED IN A REVENUE SERVICE OFFICE TO WHICH CITIZENS ARE REQUESTED
TO COME FOR INTERVIEWS.  THE RATIONALE OF MIRANDA HAS NO RELEVANCE TO
INQUIRIES CONDUCTED OUTSIDE THE ALLEGEDLY HOSTILE AND FORBIDDING
ATMOSPHERE SURROUNDING POLICE STATION INTERROGATION OF A CRIMINAL
SUSPECT.  THE COURT'S WILLINGNESS TO REVERSE WITHOUT EXPLAINING WHY THE
REASONS GIVEN FOR THE MIRANDA DECISION HAVE ANY RELEVANCE TO THE FACTS
OF THIS CASE IS DEEPLY TROUBLING. 

/1/  PETITIONER WAS ASKED WHETHER TAX RETURNS RECEIVED BY THE
GOVERNMENT BEARING HIS NAME HAD IN FACT BEEN PREPARED BY HIM AND
WHETHER HE WOULD CONSENT TO AN EXTENSION OF THE STATUTE OF LIMITATIONS
FOR CAUSES OF ACTION ARISING FROM THOSE RETURNS. 

/2/  A CIVIL INVESTIGATOR IS REQUIRED, WHENEVER AND AS SOON AS HE
FINDS "DEFINITE INDICATIONS OF FRAUD OR CRIMINAL POTENTIAL," TO REFER A
CASE TO THE INTELLIGENCE DIVISION FOR INVESTIGATION BY A DIFFERENT
AGENT WHO WORKS REGULARLY ON CRIMINAL MATTERS.  IN THE CASE BEFORE US,
SUCH A REFERENCE WAS MADE EIGHT DAYS AFTER THE SECOND VISIT TO
PETITIONER BY AGENT LAWLESS.  THE CRIMINAL AGENT VISITED PETITIONER,
GAVE HIM THE FULL SET OF "MIRANDA WARNINGS," AND WAS TOLD PETITIONER
DID NOT WISH TO DISCUSS THE CASE WITH HIM.  NO FURTHER QUESTIONS WERE
ASKED. 

NICHOLAS J. CAPUANO, BY APPOINTMENT OF THE COURT, 389 U.S. 966,
ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
ROGOVIN, AND JOSEPH M. HOWARD. 
..END :



FPC V. SUNRAY DX OIL CO., 391 U.S. 9 


       FPC V. SUNRAY DX OIL CO.

        FEDERAL POWER COMMISSION V. SUNRAY DX OIL CO. ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT. 

        NO. 60.  ARGUED JANUARY 22-23, 1968.-- DECIDED MAY 6,
1968. 

           /1A/ 


THE FEDERAL POWER COMMISSION (FPC) HAS DECIDED TO RELY ON AREA RATE
PROCEEDINGS TO ESTABLISH JUST AND REASONABLE RATES FOR PRODUCER SALES
UNDER SECS. 4 AND 5 OF THE NATURAL GAS ACT.  PENDING COMPLETION OF
THOSE PROCEEDINGS THE FPC HAS RESTED INTERIM PRODUCER REGULATION ON
SEC. 7.  UNDER THAT SECTION, NATURAL GAS MAY BE SOLD ONLY PURSUANT TO
AN FPC CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, WHICH UNDER
SEC. 7(E) MAY BE CONDITIONED "IN SUCH MANNER AS THE PUBLIC CONVENIENCE
AND NECESSITY MAY REQUIRE."  IN ATLANTIC RFG.  CO. V. PUBLIC SERV.
COMM'N (CATCO), 360 U.S. 378, THIS COURT HELD THAT THE FPC SHOULD USE
ITS SEC. 7 CONDITIONING POWER TO PREVENT LARGE INITIAL CONTRACT PRICE
ADVANCES, PENDING THE DETERMINATION UNDER SECS. 4 AND 5 OF JUST AND
REASONABLE RATES, WHICH WOULD BECOME EFFECTIVE ONLY PROSPECTIVELY.  THE
FPC THEREAFTER BEGAN TO USE ITS CONDITIONING POWER TO DETERMINE MAXIMUM
INITIAL PRICES AT WHICH SALES COULD OCCUR, BASING THESE "IN-LINE"
PRICES UPON CURRENT PRICES IN THE AREA OF THE PROPOSED SALE BUT
EXCLUDING CURRENT PRICES WHICH FOR VARIOUS REASONS WERE "SUSPECT."  IN
UNITED GAS IMPROVEMENT CO. V. CALLERY PROPERTIES, INC., 382 U.S. 223,
THIS COURT GENERALLY APPROVED THIS REGULATORY APPROACH, HOLDING THAT
THE FPC MIGHT PROPERLY REFUSE TO HEAR COST EVIDENCE IN SUCH "IN-LINE"
PRICE PROCEEDINGS, AND THAT WHEN ISSUANCE OF PERMANENT CERTIFICATES
WERE HELD ERRONEOUS ON JUDICIAL REVIEW, THE FPC MIGHT ON REMAND IMPOSE
NEW CERTIFICATE CONDITIONS FOR REFUNDS OF AMOUNTS PREVIOUSLY COLLECTED
ABOVE THE SUBSEQUENTLY DETERMINED IN-LINE PRICE.  ON SEPTEMBER 28,
1960, THE FPC BEGAN ITS POST-CATCO REGULATION OF SALES IN TEXAS
RAILROAD COMMISSION DISTRICTS 2, 3, AND 4, THE THREE TEXAS GULF COAST
DISTRICTS WHICH ARE INVOLVED IN THESE PROCEEDINGS, BY ISSUING ITS
GENERAL POLICY STATEMENT, ANNOUNCING A GUIDELINE CEILING PRICE FOR NEW
SALES IN EACH DISTRICT OF 18[ PER MCF.  ON MARCH 23, 1964, AT THE
CONCLUSION OF THE DISTRICT 4 (AMERADA) PROCEEDING, THE FPC DETERMINED
AN IN-LINE PRICE OF 16[ PER MCF FOR SALES CONTRACTED AFTER THE ISSUANCE
OF THE POLICY STATEMENT.  THE FPC RELIED PRIMARILY ON A COMPARISON OF
PRICES IN CONTRACTS ENTERED INTO SINCE THE POLICY STATEMENT AND DURING
THE PRECEDING TWO YEARS.  THE FPC NOTED THAT 82% OF POST-POLICY
STATEMENT SALES WERE AT 16[ OR MORE PER MCF.  IT GAVE "SOME MEASURE OF
WEIGHT" TO ITS 18[ POLICY STATEMENT GUIDELINE PRICE.  SOME WEIGHT WAS
ALSO ACCORDED TO PRICES UNDER TEMPORARY CERTIFICATES BECAUSE ONLY 1.4%
OF THE GAS IN THE AREA WAS MOVING UNDER PERMANENT CERTIFICATES, THOUGH
THE FPC WAS MINDFUL THAT THE TEMPORARY PRICES WERE "SUSPECT" AND TOOK
THEIR UNRELIABILITY INTO ACCOUNT WHEN IT REJECTED THE 17.2[ AVERAGE
CONTRACT PRICE.  THE FPC'S CONDITIONAL CERTIFICATION OF PROPOSED SALES
IN DISTRICT 4 WAS APPEALED TO THE COURT OF APPEALS FOR THE TENTH
CIRCUIT.  THAT COURT UPHELD THE FPC'S PRICE LINE AGAINST CONTENTIONS BY
CERTAIN CONSUMERS AND DISTRIBUTORS (THE "SEABOARD INTERESTS") THAT THE
16[ PRICE WAS TOO HIGH AND THAT IN FIXING THAT PRICE THE FPC ERRED IN
TAKING ACCOUNT OF PRICES AT WHICH GAS HAD BEEN SOLD UNDER TEMPORARY
CERTIFICATES.  ON SEPTEMBER 22, 1965, THE FPC ISSUED ITS IN-LINE PRICE
ORDERS IN THE DISTRICT 2 (SINCLAIR) AND DISTRICT 3 (HAWKINS)
PROCEEDINGS REAFFIRMING AN EARLIER ESTABLISHED PRICE OF 16[ FOR THE PRE
POLICY STATEMENT PERIOD IN DISTRICT 3, AND FOR THE LATER PERIOD FIXING
A 16[ PRICE IN DISTRICT 2 AND 17[ IN DISTRICT 3.  IN FIXING THE 16[
DISTRICT 2 PRICE THE FPC GAVE FULL WEIGHT TO THE PERMANENTLY
CERTIFICATED PRICES AT WHICH ABOUT 40% OF THE GAS IN THE AREA WAS THEN
MOVING; SOME BUT "NOT UNDUE" FORCE TO THE TEMPORARY PRICES AT WHICH 60%
OF THE GAS CURRENTLY FLOWED; ACCORDED "SOME WEIGHT"  TO THE ORIGINAL,
UNCONDITIONED PRICES IN THE AREA AND TO THE 16[ VOLUMETRIC MEDIAN AND
15.29[ VOLUMETRIC WEIGHTED AVERAGE PRICES FOR POST-POLICY STATEMENT
SALES; AND RECOGNIZED THAT 53% OF THE GAS IN THE AREA WAS MOVING AT
PRICES AT OR BELOW 16[.  IN FIXING THE 16[ DISTRICT 3 PRICE THE FPC
GAVE FULL FORCE TO PERMANENTLY CERTIFICATED SALES OF SMALL VOLUMES OF
GAS BELOW 16[ AND COMPARATIVELY LARGE VOLUMES AT 16[ AND 16.2[;
CONSIDERED THE FACT THAT A LITTLE LESS THAN HALF THE TOTAL VOLUME OF
GAS WAS SOLD AT 16[ OR LESS; GAVE "SOME WEIGHT" TO PERMANENTLY
CERTIFICATED SALES OF VERY LARGE VOLUMES AT 17.5[ OR ABOVE (EVEN THOUGH
THOSE WERE REGARDED AS "SUSPECT" PRICES); AND APPARENTLY CONSIDERED THE
WEIGHTED AVERAGE PRICE OF 15.16[ FOR ALL EXCEPT THE LATTER SUSPECT
SALES.  IN FIXING THE 17[ DISTRICT 3 PRICE THE FPC GAVE FULL WEIGHT TO
THE PERMANENTLY CERTIFICATED SALES OF MODERATE VOLUMES OF GAS AT 15[
AND 16.2[, A SMALL VOLUME AT 16.5[, AND LARGE VOLUMES AT 18[; GAVE
"SOME WEIGHT" TO TEMPORARY PRICES; NOTED THAT THE 17[ PRICE REFLECTED
THE WEIGHTED AVERAGE OF 16.17[ FOR PERMANENTLY CERTIFICATED SALES;
ACCORDED SOME WEIGHT TO ORIGINAL, UNCONDITIONED PRICES IN THE AREA; AND
CONSIDERED THE FACT THAT 43% OF ALL PERMANENTLY CERTIFICATED AREA SALES
WERE AT OR ABOVE 17[.  THE FPC'S ORDERS CONDITIONALLY CERTIFICATING THE
PROPOSED SALES IN DISTRICTS 2 AND 3 WERE APPEALED TOGETHER TO THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, WHICH SUSTAINED THE
SEABOARD INTERESTS' CONTENTION THAT THE POST-POLICY STATEMENT PRICES
FOR DISTRICTS 2 AND 3 WERE TOO HIGH AND THAT THE FPC ERRED IN
CONSIDERING TEMPORARY AND UNCONDITIONED PRICES.  IT REJECTED SUPERIOR
OIL COMPANY'S CONTENTION THAT THE INITIAL PRICES IN DISTRICT 3 FOR BOTH
PRE- AND POST-POLICY STATEMENT PERIODS WERE TOO LOW, SUPERIOR HAVING
URGED THAT THE FPC ERRONEOUSLY EXCLUDED FROM CONSIDERATION NINE LARGE
VOLUME SALES AT 20[ PER MCF WHEN IT SET THE 16[ PRICE IN DISTRICT 3;
THAT IN FIXING THE INITIAL PRICES THE FPC ERRONEOUSLY EXCLUDED A NUMBER
OF 1955-1956 SALES AT 17.5[ TO COASTAL TRANSMISSION COMPANY; THAT WITH
RESPECT TO BOTH TIME PERIODS THE FPC ERRONEOUSLY FAILED TO CONSIDER
PRICES EMBODIED IN SETTLEMENT ORDERS; THAT THE FPC FAILED TO TAKE
ENOUGH NOTICE OF TEMPORARY PRICES AND REFUSED TO CONSIDER PRICES OF
INTRASTATE SALES; AND THAT FOR BOTH PERIODS THE FPC HAD INCORRECTLY
RELIED ON ESTIMATED RATHER THAN ACTUAL VOLUMES OF GAS SOLD.  THE FPC
DID NOT EXPRESSLY CONSIDER WHETHER ANY OF THE "IN-LINE" PRICES IT FIXED
WERE SUITABLE WHEN REGARDED AS REFUND FLOORS, I.E., A LEVEL BELOW WHICH
THE FPC MAY NOT ORDER REFUNDS PURSUANT TO SEC. 4(E) OF THE NATURAL GAS
ACT.  MOST OF THE PRODUCERS IN THE DISTRICT 4 PROCEEDING HAD APPLIED
FOR AND BEEN GRANTED TEMPORARY CERTIFICATES UNDER SEC. 7(C) OF THE ACT,
THOSE CERTIFICATES AUTHORIZING THEM TO SELL GAS AT OR BELOW 18[ PER
MCF, THE THEN-GUIDELINE PRICE.  EIGHT CERTIFICATES PROVIDED FOR REFUNDS
SHOULD THE EVENTUAL IN-LINE PRICE BE LOWER THAN THAT CHARGED UNDER THE
TEMPORARY CERTIFICATE; THE OTHER CERTIFICATES CONTAINED ONLY GENERAL
CAUTIONARY LANGUAGE RESPECTING FURTHER FPC ACTION.  THE FPC ULTIMATELY
ORDERED THE DISTRICT 4 PRODUCERS TO REFUND SUMS COLLECTED UNDER THE
TEMPORARY CERTIFICATES IN EXCESS OF THE IN-LINE RATE.  THE COURT OF
APPEALS FOR THE TENTH CIRCUIT HELD THAT THE FPC LACKED POWER TO ORDER
REFUNDS OF AMOUNTS COLLECTED UNDER UNCONDITIONED TEMPORARY
CERTIFICATES, REASONING THAT TO PERMIT SUCH REFUNDS WOULD UNDERMINE
PRODUCER CONFIDENCE AND DESTROY STABILITY.  IN THE DISTICT 2 AND
DISTRICT 3 PROCEEDINGS THE NEW YORK PUBLIC SERVICE COMMISSION CONTENDED
THAT THERE WAS NO PUBLIC NEED FOR THE GAS AND ALLEGED THAT SEVERAL
PIPELINES WERE ALREADY OBLIGATED BY CONTRACT EITHER TO TAKE MORE GAS
THAN THEY COULD FORESEEABLY USE OR TO PAY FOR IT.  THE FPC REFUSED TO
GIVE MORE THAN PERFUNCTORY CONSIDERATION TO THIS "NEED"  ISSUE, WHICH
IT CONCLUDED SHOULD BE DEALT WITH IN PIPELINE RATHER THAN PRODUCER
PROCEEDINGS.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
HELD THAT THE FPC ERRED IN NOT MEETING THE NEED ISSUE IN THE PRODUCER
CERTIFICATION PROCEEDING.  HELD: 

1.  THE POST-PLICY STATEMENT PERIOD INITIAL PRICE OF 16[ PER MCF IN
DISTRICT 4 WAS NOT BASED ON IMPERMISSIBLE FACTORS AND WAS NOT
UNREASONABLE.  PP. 28-30. 

(A) THE FPC DID NOT ABUSE ITS DISCRETION IN GIVING SOME WEIGHT TO
THE GUIDELINE AND TEMPORARY PRICES (ESPECIALLY SINCE 98.6% OF THE GAS
WAS FLOWING UNDER TEMPORARY CERTIFICATES), SINCE BOTH THOSE TYPES OF
PRICES, LIKE PERMANENTLY CERTIFICATED PRICES, GIVE SOME INDICATION OF
COST TRENDS.  P. 29. 

(B) THE 16[ PRICE, WHICH WAS AT THE LOWER END OF THE SPECTRUM OF
CURRENT PRICES CONSIDERED BY THE FPC, WAS WITHIN THE "ZONE OF
REASONABLENESS" WITHIN WHICH THE FPC HAS RATE-SETTING DISCRETION, AND
SATISFIED THE CATCO MANDATE AGAINST ABRUPT PRICE RISES.  PP. 29-30. 

2.  THE FPC DID NOT ABUSE ITS DISCRETION IN ESTABLISHING THE IN-LINE
PRICES IN DISTRICTS 2 AND 3.  PP. 32-36. 

(A) THE FPC'S CONSIDERATION OF TEMPORARY AND UNCONDITIONED CONTRACT
PRICES WAS PROPER.  P. 32. 

(B) THE 16[ AND 17[ INITIAL PRICES WERE WITHIN THE "ZONE OF
REASONABLENESS" AND DID NOT BREACH THE CATCO DIRECTIVE.  P. 32. 

(C) THE FPC PROPERLY DISCOUNTED THE FORCE OF THE 20[ SALES WHICH
WERE OUT OF LINE WITH RESPECT TO THE POST-CATCO PRICE STRUCTURE AND
WHICH THE FPC HAD REASON TO BELIEVE WOULD HAVE BEEN SET ASIDE ON
JUDICIAL REVIEW HAD IT NOT BEEN FOR A PROCEDURAL DEFECT.  P. 34. 

(D) THE PRICES TO COASTAL TRANSMISSION COMPANY (A PIPELINE COMPANY
WHICH AT THE TIME OF THE SALES DID NOT HAVE A CERTIFICATE AND WAS NOT
YET IN OPERATION) WERE PROPERLY DISCOUNTED BY THE FPC, AS THOSE PRICES
MAY HAVE INCLUDED A HIGHER-THAN-NORMAL ALLOWANCE FOR RISK.  PP. 34-35. 

(E) THE FPC HAD DISCRETION TO DISREGARD THE PRICES EMBODIED IN THE
SETTLEMENT ORDERS AS NOT SUPPLYING INDEPENDENT EVIDENCE OF MARKET
TRENDS.  P. 35. 

(F) THE FPC GAVE ADEQUATE CONSIDERATION TO TEMPORARY PRICES, AND IT
PROPERLY REJECTED EVIDENCE OF INTRASTATE PRICES AS NOT COVERING THE
ENTIRE AREA OR BEING REPRESENTATIVE.  P. 35. 

(G) ACTUAL VOLUMES OF GAS SOLD DURING 1962 AND 1963 WERE NOT KNOWN
AND FPC'S RELIANCE ON ESTIMATED VOLUMES WAS THEREFORE JUSTIFIED.  PP.
35-36. 

3.  AN IN-LINE PRICE IS A "REFUND FLOOR" BELOW WHICH THE FPC MAY NOT
ORDER REFUNDS UNDER SEC. 4(E) OF THE NATURAL GAS ACT.  PP. 22-24. 

4.  THE IN-LINE PRICES FIXED HERE WERE NOT IMPERMISSIBLY HIGH WHEN
VIEWED AS REFUND FLOORS.  PP. 36-40. 

(A) THOUGH IT WAS REGRETTABLE THAT THE FPC DID NOT EXPLICITLY
CONSIDER WHETHER OR NOT THE IN-LINE PRICES IT FIXED WERE SUITABLE WHEN
REGARDED AS REFUND FLOORS, IT WAS NOT OBLIGED IN THIS INSTANCE TO DO
SO.  SEE CALLERY, SUPRA.  P. 37. 

(B) THE 16[ PRICE IN THE DISTRICT 4 PROCEEDING WAS NOT BEYOND THE
FPC'S POWER WHEN VIEWED AS A REFUND FLOOR SINCE IT WAS NEAR THE LOWER
END OF THE PRICE RANGE SUGGESTED BY THE PRICE EVIDENCE.  P. 38. 

(C) THE 16[ PRICE IN THE DISTRICT 2 PROCEEDING AND THE 17[ PRICE IN
THE SIMILAR DISTRICT 3 PROCEEDING (NEITHER OF WHICH IS LIKELY TO EXCEED
THE PROBABLE TEXAS GULF COAST AREA RATE) WERE WITHIN THE FPC'S
AUTHORITY WHEN VIEWED AS REFUND FLOORS; DESPITE THE WEAKNESSES IN THE
FPC'S OPINION WITH RESPECT TO THESE ASPECTS, IT IS DESIRABLE TO
TERMINATE THIS PROTRACTED AND OUTMODED PROCEEDING.  PP. 39-40. 

5.  IN THE EXERCISE OF ITS POWER TO CONDITION PERMANENT CERTIFICATES
UNDER SEC. 7(E), THE FPC MAY REQUIRE PRODUCERS TO REFUND AMOUNTS
COLLECTED UNDER OUTSTANDING, UNCONDITIONED TEMPORARY CERTIFICATES IN
EXCESS OF THE FINALLY ESTABLISHED IN-LINE PRICE.  PP. 43-45. 

(A) PARTIES, AT LEAST THOSE OTHER THAN THE PRODUCER ITSELF, MAY
CHALLENGE A TEMPORARY CERTIFICATE AT THE TIME A PERMANENT CERTIFICATE
IS APPLIED FOR, NOTWITHSTANDING THE TIME LIMITS ON APPEAL SET OUT IN
SEC. 19(B) OF THE ACT.  PP. 43-44. 

(B) TO HOLD THAT REFUNDS COULD NOT BE ORDERED FOR THE INTERIM PERIOD
ON THE GROUND URGED BY THE PRODUCERS THAT A TEMPORARY CERTIFICATE
CREATES VESTED RIGHTS WHICH MAY BE ALTERED ONLY PROSPECTIVELY WOULD
CONTRAVENE THE OBJECTIVES OF THE NATURAL GAS ACT.  P. 44. 

(C) WHEN A PRODUCER, DUE TO AN EMERGENCY, HAS REQUESTED PERMISSION
TO DELIVER GAS BEFORE NORMAL CERTIFICATION PROCEDURES ARE COMPLETED, IT
IS NOT UNFAIR IN RETURN FOR THAT PERMISSION THAT WHEN THOSE PROCEDURES
ARE TERMINATED THE PRODUCER'S TERMS MAY BE RETROSPECTIVELY ALTERED TO
CONFORM TO THE PUBLIC INTEREST.  PP. 44-45. 

6.  NEITHER THE PROCEDURE FOLLOWED NOR THE RESULT REACHED BY THE FPC
IN ORDERING REFUNDS CONSTITUTED AN ABUSE OF DISCRETION BECAUSE OF THE
PARTICULAR CIRCUMSTANCES OF THE AMERADA PROCEEDING.  PP. 45-47. 

7.  THE FPC DID NOT ABUSE ITS DISCRETION IN DECIDING THAT THE
QUESTION WHETHER THE GAS TO BE SOLD IS ACTUALLY NEEDED BY THE PUBLIC
CAN BE BETTER DEALT WITH IN PIPELINE RATHER THAN PRODUCER PROCEEDINGS. 
PP. 47-52. 

(A) DATA ABOUT THE PURCHASING PIPELINE'S TOTAL GAS SUPPLY, ITS TAKE
OR-PAY SITUATION UNDER OUTSTANDING SALES CONTRACTS, THE PURCHASING
PIPELINE'S CUSTOMERS AND THE ALTERNATIVE USES FOR GAS BY OTHER
PIPELINES WHICH MIGHT BUY IT ARE NOT IN THE PRODUCERS' BUT IN THE
PIPELINES' POSSESSION.  P. 49. 

(B) THE PIPELINE PROCEEDINGS, SUPPLEMENTED BY OTHER FORMS OF
REGULATION AVAILABLE TO THE FPC, WILL, SO FAR AS APPEARS FROM THE
PRESENT RECORD, PROVIDE AN ADEQUATE FORUM IN WHICH TO CONFRONT BOTH THE
TAKE-OR-PAY AND END-USE ASPECTS OF THE NEED ISSUE.  PP. 50-52.     NOS.
60, 61, AND 62, 370 F.2D 181, AFFIRMED IN PART, REVERSED IN PART; NOS.
80 AND 98, 376 F.2D 578, AND NOS. 111, 143, 144, AND 231, 126
U.S.APP.D.C. 26, 373 F.2D 816, REVERSED.     MR. JUSTICE HARLAN
DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT QUESTIONS ARISING OUT OF THE ISSUANCE BY THE
FEDERAL POWER COMMISSION, PURSUANT TO SEC. 7 OF THE NATURAL GAS ACT, 52
STAT. 824, AS AMENDED, 15 U.S.C. 717F, OF "PERMANENT" CERTIFICATES
AUTHORIZING PRODUCERS TO SELL NATURAL GAS TO PIPELINES FOR
TRANSPORTATION AND RESALE IN INTERSTATE COMMERCE. 

AN UNDERSTANDING OF THE ISSUES REQUIRES SOME BACKGROUND.  SECTION
7(C) OF THE NATURAL GAS ACT PROVIDES THAT A NATURAL GAS COMPANY MAY
ENGAGE IN A SALE OF NATURAL GAS SUBJECT TO THE COMMISSION'S
JURISDICTION ONLY IF IT HAS OBTAINED FROM THE COMMISSION A CERTIFICATE
OF PUBLIC CONVENIENCE AND NECESSITY.  SUCH A "PERMANENT" CERTIFICATE
MAY ISSUE ONLY AFTER NOTICE AND HEARING TO INTERESTED PARTIES, ALTHOUGH
A PROVISO TO SEC. 7(C) ENABLES THE COMMISSION IN CASES OF EMERGENCY TO
ISSUE TEMPORARY CERTIFICATES WITHOUT NOTICE AND HERING, PENDING THE
DETERMINATION OF AN APPLICATION FOR A PERMANENT CERTIFICATE.  SECTION
7(E) STATES THAT PERMANENT CERTIFICATES ARE TO BE GRANTED IF, AND ONLY
IF, THE COMMISSION FINDS THAT THE PROPOSED SALE "IS OR WILL BE REQUIRED
BY THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY . . . "  THAT
"SUCH REASONABLE TERMS AND CONDITIONS AS THE PUBLIC CONVENIENCE AND
NECESSITY MAY REQUIRED." 

PRIOR TO 1954, THE COMMISSION CONSTRUED THE NATURAL GAS ACT AS
EMPOWERING IT TO REGULATE ONLY SALES OF GAS BY PIPELINES AND NOT SALES
BY PRODUCERS.  THIS COURT HELD TO THE CONTRARY IN PHILLIPS PETROLEUM
CO. V. WISCONSIN, 347 U.S. 672.  SINCE THEN, THE COMMISSION HAS BEEN
ENGAGED IN A CONTINUING EFFORT TO ADAPT THE PROVISIONS OF THE ACT TO
REGULATION OF PRODUCER SALES.  THE METHOD FINALLY RESOLVED UPON FOR
DETERMINING THE "JUST AND REASONABLE" RATE AT WHICH SEC. 4 OF THE ACT
REQUIRES THAT NATURAL GAS BE SOLD WAS TO CONDUCT A NUMBER OF AREA RATE
PROCEEDINGS, LOOKING TO THE ESTABLISHMENT OF MAXIMUM PRODUCER RATES
WITHIN EACH PRODUCING AREA.  THIS METHOD OF REGULATION HAS RECENTLY
BEEN APPROVED BY US IN THE PERMIAN BASIN AREA RATE CASES, 390 U.S.
747.  OTHER AREA RATE PROCEEDINGS ARE UNDERWAY, AND THEY WILL
EVENTUALLY ENCOMPASS AREAS ACCOUNTING FOR SOME 90% OF ALL THE GAS SOLD
IN INTERSTATE COMMERCE.  SEE ID., AT 758, N. 18. 

THE DECISION TO RELY ON AREA RATE REGULATION AS THE MEANS FOR
ESTABLISHING JUST AND REASONABLE RATES UNDER SECS. 4 AND 5 OF THE ACT,
AND ITS IMPLEMENTATION, HAVE THUS FAR OCCUPIED MORE THAN A DECADE. 
DURING THIS PERIOD, THE COMMISSION WAS OBLIGED TO REST INTERIM PRODUCER
RATE REGULATION ON SEC. 7.  IN THE EARLY YEARS FOLLOWING THIS COURT'S
FIRST PHILLIPS DECISION, SUPRA, THE COMMISSION TOOK A NARROW VIEW OF
ITS SEC. 7 POWERS, AND THE FIELD PRICE OF NATURAL GAS BEGAN TO SOAR. 
/1/  MATTERS CAME TO A HEAD IN THE SO-CALLED CATCO PROCEEDING, IN WHICH
THE COMMISSION CERTIFICATED THE SALE OF THE LARGEST QUANTITY OF NATURAL
GAS THERETOFORE DEDICATED TO INTERSTATE COMMERCE AT A PRICE ABOVE THOSE
THEN PREVAILING, ON THE GROUND THAT IF IT DENIED THE CERTIFICATE THE
REFUSAL OF PRODUCERS TO DEDICATE THE GAS MIGHT RESULT IN AN EVENTUAL
SHORTAGE IN SUPPLY.  THIS COURT HELD IN ATLANTIC RFG.  CO. V. PUBLIC
SERV. COMM'N (CATCO), 360 U.S. 378, THAT THE COMMISSION SHOULD HAVE
DONE MORE. 

THE COURT BEGAN IN CATCO BY STATING THAT THE NATURAL GAS ACT "WAS SO
FRAMED AS TO AFFORD CONSUMERS A COMPLETE PERMANENT AND EFFECTIVE BOND
OF PROTECTION FROM EXCESSIVE RATES AND CHARGES."  360 U.S.,AT 388.  THE
COURT THEN NOTED THAT THE ACT REQUIRED THAT ALL RATES CHARGED BE "JUST
AND REASONABLE."  HOWEVER, THE COURT STATED THAT THE DETERMINATION OF
JUST AND REASONABLE RATES UNDER SECS. 4 AND 5 WAS PROVING TO BE
INORDINATELY TIME-CONSUMING, AND THAT, BECAUSE THOSE RATES BECAME
EFFECTIVE ONLY PROSPECTIVELY, THE CONSUMER HAD NO PROTECTION FROM
EXCESS CHARGES COLLECTED DURING THE PENDENCY OF THOSE PROCEEDINGS.  THE
COURT SAID: 

     "(THE INORDINATE DELAY PRESENTLY EXISTING IN THE PROCESSING OF

  SEC. 5 PROCEEDINGS REQUIRES A MOST CAREFUL SCRUTINY AND

  RESPONSIBLE REACTION TO INITIAL PRICE PROPOSALS OF PRODUCERS

  UNDER SEC. 7 . . . THE FACT THAT PRICES HAVE LEAPED FROM ONE

PLATEAU TO THE HIGHER LEVELS OF ANOTHER . . . (MAKES) PRICE A

  CONSIDERATION OF PRIME IMPORTANCE.  THIS IS THE MORE IMPORTANT

  DURING THIS FORMATIVE PERIOD WHEN THE GROUND RULES OF PRODUCER

  REGULATION ARE BEING EVOLVED . . . THE CONGRESS, IN SEC. 7(E),

  HAS AUTHORIZED THE COMMISSION TO CONDITION CERTIFICATES IN SUCH

  MANNER AS THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE. 

  WHERE THE PROPOSED PRICE IS NOT IN KEEPING WITH THE PUBLIC

  INTEREST BECAUSE IT IS OUT OF LINE OR BECAUSE ITS APPROVAL MIGHT

  RESULT IN A TRIGGERING OF GENERAL PRICE RISES OR AN INCREASE IN

  THE APPLICANT'S EXISTING RATES BY REASON OF 'FAVORED NATION'

 CLAUSES OR OTHERWISE, THE COMMISSION IN THE EXERCISE OF ITS

  DISCRETION MIGHT ATTACH SUCH CONDITIONS AS IT BELIEVES

  NECESSARY."  360 U.S.,AT 391. 

AFTER THE CATCO DECISION, THE COMMISSION, UNDER THE SCRUTINY OF THE
COURTS, BEGAN TO WORK OUT A SYSTEM FOR DETERMINING THE MAXIMUM INITIAL
PRICES AT WHICH GAS SHOULD MOVE, PURSUANT TO CONTRACTS OF SALE, DURING
THE INTERVAL PRECEDING ESTABLISHMENT OF JUST AND REASONABLE RATES.  IT
BASED THIS "IN-LINE" PRICE UPON CURRENT PRICES FOR GAS IN THE AREA OF
THE PROPOSED SALE, TAKING INTO ACCOUNT THE POSSIBILITY THAT THE
PROPOSED RATE MIGHT RESULT IN OTHER PRICE RISES DUE TO MOST-FAVORED
NATION CLAUSES.  /2/  THE COMMISSION AND COURTS GENERALLY EXCLUDED FROM
CONSIDERATION OR GAVE DIMINISHED WEIGHT TO THOSE CURRENT PRICES WHICH
WERE "SUSPECT" BECAUSE THEY WERE EMBODIED IN PERMANENT CERTIFICATES
STILL SUBJECT TO JUDICIAL REVIEW; BECAUSE THEY WERE CONTAINED IN
TEMPORARY CERTIFICATES ISSUED ON THE EX PARTE REPRESENTATIONS OF
PRODUCERS; OR BECAUSE THEY HAD BEEN CERTIFICATED IN PROCEEDINGS WHICH
OCCURRED BEFORE THIS COURT'S CATCO DECISION OR IN PROCEEDINGS FROM
WHICH REPRESENTATIVES OF EAST COAST CONSUMERS AND DISTRIBUTORS
(COMMONLY REFERRED TO AS THE "SEABOARD INTERESTS") HAD BEEN ERRONEOUSLY
EXCLUDED.  /3/  AFTER SOME HESITATION, /4/  THE COMMISSION DECIDED TO
BAR PRODUCERS FROM PRESENTING COST EVIDENCE AT IN-LINE PRICE
PROCEEDINGS, ON THE GROUND THAT ITS ADMISSION WOULD MAKE THE HEARINGS
TOO LONG-DRAWN-OUT.  AFTER DETERMINING THE IN-LINE PRICE, THE
COMMISSION CONDITIONED THE PERMANENT CERTIFICATE TO PROVIDE THAT THE
PRODUCER COULD NOT INITIALLY SELL THE GAS AT A GREATER PRICE.  THE
COMMISSION ALSO BEGAN TO CONDITION CERTIFICATES SO AS TO LIMIT THE
LEVEL TO WHICH THE PRICE MIGHT BE RAISED, PURSUANT TO ESCALATION
CLAUSES IN THE CONTRACT, DURING A GIVEN PERIOD OR PENDING COMPLETION OF
THE RELEVANT AREA RATE PROCEEDING.  /5/ 

THIS COURT GENERALLY APPROVED THIS METHOD OF REGULATION IN UNITED
GAS IMPROVEMENT CO. V. CALLERY PROPERTIES, INC., 382 U.S. 223.  THERE
THE COURT HELD THAT THE COMMISSION MIGHT PROPERLY REFUSE TO HEAR COST
EVIDENCE IN IN-LINE PROCEEDINGS, AND THAT THE COMMISSION MIGHT IMPOSE
MORATORIA ON PRICE INCREASES ABOVE SPECIFIED LEVELS.  THE COURT ALSO
HELD IN CALLERY THAT WHEN ISSUANCE OF PERMANENT CERTIFICATES IS HELD ON
JUDICIAL REVIEW TO HAVE BEEN ERRONEOUS, THE COMMISSION MAY ON REMAND
INSERT IN THE NEW CERTIFICATES CONDITIONS REQUIRING REFUND OF AMOUNTS
COLLECTED UNDER THE ERRONEOUSLY ISSUED CERTIFICATES IN EXCESS OF THE
SUBSEQUENTLY DETERMINED IN-LINE PRICE. 

THE CASES NOW BEFORE US ORIGINATED IN PRODUCER APPLICATIONS FOR
PERMANENT CERTIFICATES TO SELL GAS PRODUCED IN THREE TEXAS RAILROAD
COMMISSION DISTRICTS ON THE TEXAS GULF COAST, UNDER CONTRACTS ENTERED
INTO BETWEEN 1958 AND 1963.  THE COMMISSION'S CONDITIONAL CERTIFICATION
OF PROPOSED SALES IN DISTRICT 4, 31 F.P.C. 623, WAS APPEALED TO THE
COURT OF APPEALS FOR THE TENTH CIRCUIT.  THAT COURT UPHELD THE
COMMISSION'S PRICE LINE AGAINST CHALLENGES BY BOTH PRODUCERS AND THE
SEABOARD INTERESTS, REJECTING IN PARTICULAR THE CHARGE OF THE SEABOARD
INTERESTS THAT THE COMMISSION ERRED IN TAKING ACCOUNT OF PRICES AT
WHICH GAS HAD BEEN SOLD UNDER TEMPORARY CERTIFICATES.  370 F.2D 181. 
IN THE SAME OPINION, THE TENTH CIRCUIT STATED THAT THE COMMISSION HAD
NO POWER TO ORDER REFUNDS OF AMOUNTS COLLECTED BY PRODUCERS IN THE PAST
UNDER TEMPORARY CERTIFICATES WHICH CONTAINED NO REFUND CONDITIONS AND
HAD NOT BEEN APPEALED, AND IT SUBSEQUENTLY REITERATED THAT VIEW IN
REVERSING ON APPEAL A COMMISSION DECISION, 36 F.P.C. 309, ORDERING THE
DISTRICT 4 PRODUCERS TO MAKE SUCH REFUNDS.  376 F.2D 578. 

ORDERS OF THE COMMISSION CONDITIONALLY CERTIFICATING THE PROPOSED
SALES IN DISTRICTS 2 AND 3, 34 F.P.C. 897 AND 930, WERE APPEALED
TOGETHER TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 
IN A SINGLE OPINION, THAT COURT HELD THAT IN THE CIRCUMSTANCES OF THE
CASES BEFORE IT THE COMMISSION HAD ERRED IN GIVING WEIGHT TO SALES
UNDER TEMPORARY CERTIFICATES WHEN IT SET THE IN-LINE PRICES.  NO ISSUE
AS TO REFUND POWER WAS RAISED IN THE DISTRICT OF COLUMBIA APPEAL, BUT
THE COURT DID HOLD THAT THE COMMISSION COMMITTED FURTHER ERROR IN
RESERVING TO PIPELINE PROCEEDINGS THE QUESTION, RAISED BY SEABOARD
INTERESTS, OF WHETHER THERE WAS A PUBLIC NEED FOR THE GAS WHICH WAS TO
BE SOLD.  126 U.S.APP.D.C. 26, 373 F.2D 816. 

WE GRANTED CERTIORARI AND CONSOLIDATED THE CASES FOR ARGUMENT, 389
U.S. 811, TO CONSIDER THE FOLLOWING MATTERS:  (A) DID THE COMMISSION
ERR IN DETERMINING THE IN-LINE PRICES HERE IN ISSUE?  (2) MAY THE
COMMISSION ORDER REFUNDS OF AMOUNTS COLLECTED UNDER UNCONDITIONED
TEMPORARY CERTIFICATES IN EXCESS OF THE EVENTUALLY DETERMINED IN-LINE
PRICE?  (3) MUST THE COMMISSION, ON REQUEST OF INTERESTED PARTIES,
DECIDE IN THE CERTIFICATION PROCEEDING ITSELF WHETHER THE GAS TO BE
SOLD IS ACTUALLY NEEDED BY THE PUBLIC, OR MAY IT PROPERLY DEAL WITH
THAT ISSUE ONLY IN PIPELINE PROCEEDINGS?  FOR REASONS WHICH FOLLOW, WE
AFFIRM THE DECISION OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT AND
REVERSE THAT OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT ON THE IN-LINE PRICE QUESTION.  WE REVERSE THE DECISION OF THE
TENTH CIRCUIT ON THE REFUND ISSUE AND THAT OF THE DISTRICT OF COLUMBIA
CIRCUIT ON THE MATTER OF "NEED."  WE UPHOLD THE ORDERS OF THE
COMMISSION IN FULL. 

        I. 

THE FIRST ISSUE IS WHETHER THE COMMISSION ACTED CORRECTLY IN SETTING
THE IN-LINE PRICES HERE UNDER REVIEW.  IN ORDER ADEQUATELY TO RESOLVE
THAT QUESTION, IT IS NECESSARY TO HAVE A MORE PRECISE IDEA OF THE
FUNCTIONS OF IN-LINE PRICES. 

ONE FUNCTION OF AN IN-LINE PRICE IS THAT IT SERVES AS A "CEILING" ON
THE RATE AT WHICH GAS MAY BE SOLD UNDER THE CERTIFICATE CONTAINING THE
PRICE CONDITION.  HOWEVER, ITS EFFECT IN PREVENTING CONTRACTUALLY
AUTHORIZED PRICE RISES IS LEGALLY LIMITED, FOR UNDER SEC. 4 OF THE ACT
A PRODUCER IS FREE, UPON 30 DAYS' NOTICE TO THE COMMISSION, TO RAISE
ITS PRICE TO THE EXTENT THAT ITS CONTRACT PERMITS, SUBJECT TO THE
COMMISSION'S POWER UNDER SEC. 4(E) TO SUSPEND THE EFFECTIVENESS OF THE
INCREASE FOR A PERIOD OF FIVE MONTHS AND TO ORDER REFUNDS IF THE
INCREASED RATE TURNS OUT TO BE HIGHER THAN THE JUST AND REASONABLE RATE
THEREAFTER FOUND FOR THE AREA.  /6/ 

A SECOND FUNCTION OF AN IN-LINE PRICE IS THAT IT CONSTITUTES A
"FLOOR" BELOW WHICH THE COMMISSION MAY NOT ORDER REFUNDS UNDER SEC.
4(E) OF THE ACT.  SECTION 4(E) STATES THAT UPON THE FILING OF A SEC. 4
RATE INCREASE, THE COMMISSION MAY ON ITS OWN AUTHORITY UNDERTAKE A
HEARING TO DETERMINE WHETHER THE RATE IS JUST AND REASONABLE,
SIMULTANEOUSLY SUSPENDING THE RATE INCREASE FOR UP TO FIVE MONTHS.  IF
THE SUSPENSION PERIOD EXPIRES BEFORE THE COMPLETION OF THE HEARING, THE
COMMISSION MAY 

"BY ORDER, REQUIRE THE NATURAL-GAS COMPANY TO FURNISH A BOND . . .
TO REFUND ANY AMOUNTS ORDERED BY THE COMMISSION, TO KEEP ACCURATE
ACCOUNTS IN DETAIL OF ALL AMOUNTS RECEIVED BY REASON OF SUCH INCREASE .
. . , AND, UPON COMPLETION OF THE HEARING AND DECISION, TO (SIC) ORDER
SUCH NATURAL-GAS COMPANY TO REFUND, WITH INTEREST, THE PORTION OF SUCH
INCREASED RATES OR CHARGES BY ITS DECISION FOUND NOT JUSTIFIED."  THE
COMMISSION'S PRACTICE HAS BEEN THAT WHEN A PRODUCER RILES A RATE
INCREASE ON A CONTRACT IN AN AREA WHERE AN AREA RATE PROCEEDING IS IN
PROGRESS, ITS APPLICATION IS CONSOLIDATED INTO THE AREA RATE
PROCEEDING, THEREBY RENDERING IT SUBJECT TO THE REFUND PROVISION OF
SEC. 4(E).  /7/ 

IT HAS SOMETIMES BEEN CONTENDED THAT WHEN A PRODUCER OPERATING UNDER
A NONREVIEWABLE PERMANENT CERTIFICATE INCREASES ITS PRICE UNDER SEC. 4,
THE PERMANENTLY CERTIFICATED PRICE IS NOT A LOWER LIMIT ON THE REFUND
POWER, AND THAT IF THE EVENTUAL JUST AND REASONABLE AREA RATE IS BELOW
THE PERMANENTLY CERTIFICATED PRICE, THE COMMISSION MAY ORDER A REFUND
NOT MERELY OF THE PRICE INCREASE BUT OF THE ENTIRE DIFFERENCE BETWEEN
THE INCREASED RATE AND THE JUST AND REASONABLE RATE.  /8/  THE
COMMISSION HAS NEVER PASSED ON THIS CONTENTION, /9/  AND THIS COURT HAS
TWICE REJECTED IT IN DICTUM.  IN SUNRAY MID-CONTINENT OIL CO. V. FPC,
364 U.S. 137, 146, THE COURT INTERPRETED SEC. 4(E) AS MEANING THAT "THE
COMMISSION IS EMPOWERED TO REQUIRE THE COMPANY TO COLLECT THE INCREMENT
UNDER BOND AND ACCOUNTING, AND REFUND IT IF IT COULD NOT MAKE OUT ITS
CASE FOR THE INCREASE."  IN CALLERY, SUPRA, THE COURT STATED THAT "(THE
FIXING OF AN INITIAL 'IN-LINE' PRICE ESTABLISHES A FIRM PRICE AT WHICH
A PRODUCER MAY OPERATE, PENDING DETERMINATION OF A JUST AND REASONABLE
RATE, WITHOUT ANY CONTINGENT OBLIGATION TO MAKE REFUNDS SHOULD A JUST
AND REASONABLE RATE TURN OUT TO BE LOWER THAN THE 'IN-LINE' PRICE." 
382 U.S.,AT 227. 

NOS. 60, 61, AND 62, 370 F.2D 181, AFFIRMED IN PART, REVERSED IN
PART; NOS. 80 AND 98, 376 F.2D 578, AND NOS. 111, 143, 144, AND 231,
126 U.S.APP.D.C. 26, 373 F.2D 816, REVERSED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT QUESTIONS ARISING OUT OF THE ISSUANCE BY THE
FEDERAL POWER COMMISSION, PURSUANT TO SEC. 7 OF THE NATURAL GAS ACT, 52
STAT. 824, AS AMENDED, 15 U.S.C. 717F, OF "PERMANENT" CERTIFICATES
AUTHORIZING PRODUCERS TO SELL NATURAL GAS TO PIPELINES FOR
TRANSPORTATION AND RESALE IN INTERSTATE COMMERCE. 

AN UNDERSTANDING OF THE ISSUES REQUIRES SOME BACKGROUND.  SECTION
7(C) OF THE NATURAL GAS ACT PROVIDES THAT A NATURAL GAS COMPANY MAY
ENGAGE IN A SALE OF NATURAL GAS SUBJECT TO THE COMMISSION'S
JURISDICTION ONLY IF IT HAS OBTAINED FROM THE COMMISSION A CERTIFICATE
OF PUBLIC CONVENIENCE AND NECESSITY.  SUCH A "PERMANENT" CERTIFICATE
MAY ISSUE ONLY AFTER NOTICE AND HEARING TO INTERESTED PARTIES, ALTHOUGH
A PROVISO TO SEC. 7(C) ENABLES THE COMMISSION IN CASES OF EMERGENCY TO
ISSUE TEMPORARY CERTIFICATES WITHOUT NOTICE AND HERING, PENDING THE
DETERMINATION OF AN APPLICATION FOR A PERMANENT CERTIFICATE.  SECTION
7(E) STATES THAT PERMANENT CERTIFICATES ARE TO BE GRANTED IF, AND ONLY
IF, THE COMMISSION FINDS THAT THE PROPOSED SALE "IS OR WILL BE REQUIRED
BY THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY . . . "  THAT
"SUCH REASONABLE TERMS AND CONDITIONS AS THE PUBLIC CONVENIENCE AND
NECESSITY MAY REQUIRED." 

PRIOR TO 1954, THE COMMISSION CONSTRUED THE NATURAL GAS ACT AS
EMPOWERING IT TO REGULATE ONLY SALES OF GAS BY PIPELINES AND NOT SALES
BY PRODUCERS.  THIS COURT HELD TO THE CONTRARY IN PHILLIPS PETROLEUM
CO. V. WISCONSIN, 347 U.S. 672.  SINCE THEN, THE COMMISSION HAS BEEN
ENGAGED IN A CONTINUING EFFORT TO ADAPT THE PROVISIONS OF THE ACT TO
REGULATION OF PRODUCER SALES.  THE METHOD FINALLY RESOLVED UPON FOR
DETERMINING THE "JUST AND REASONABLE" RATE AT WHICH SEC. 4 OF THE ACT
REQUIRES THAT NATURAL GAS BE SOLD WAS TO CONDUCT A NUMBER OF AREA RATE
PROCEEDINGS, LOOKING TO THE ESTABLISHMENT OF MAXIMUM PRODUCER RATES
WITHIN EACH PRODUCING AREA.  THIS METHOD OF REGULATION HAS RECENTLY
BEEN APPROVED BY US IN THE PERMIAN BASIN AREA RATE CASES, 390 U.S.
747.  OTHER AREA RATE PROCEEDINGS ARE UNDERWAY, AND THEY WILL
EVENTUALLY ENCOMPASS AREAS ACCOUNTING FOR SOME 90% OF ALL THE GAS SOLD
IN INTERSTATE COMMERCE.  SEE ID., AT 758, N. 18. 

THE DECISION TO RELY ON AREA RATE REGULATION AS THE MEANS FOR
ESTABLISHING JUST AND REASONABLE RATES UNDER SECS. 4 AND 5 OF THE ACT,
AND ITS IMPLEMENTATION, HAVE THUS FAR OCCUPIED MORE THAN A DECADE. 
DURING THIS PERIOD, THE COMMISSION WAS OBLIGED TO REST INTERIM PRODUCER
RATE REGULATION ON SEC. 7.  IN THE EARLY YEARS FOLLOWING THIS COURT'S
FIRST PHILLIPS DECISION, SUPRA, THE COMMISSION TOOK A NARROW VIEW OF
ITS SEC. 7 POWERS, AND THE FIELD PRICE OF NATURAL GAS BEGAN TO SOAR. 
/1/  MATTERS CAME TO A HEAD IN THE SO-CALLED CATCO PROCEEDING, IN WHICH
THE COMMISSION CERTIFICATED THE SALE OF THE LARGEST QUANTITY OF NATURAL
GAS THERETOFORE DEDICATED TO INTERSTATE COMMERCE AT A PRICE ABOVE THOSE
THEN PREVAILING, ON THE GROUND THAT IF IT DENIED THE CERTIFICATE THE
REFUSAL OF PRODUCERS TO DEDICATE THE GAS MIGHT RESULT IN AN EVENTUAL
SHORTAGE IN SUPPLY.  THIS COURT HELD IN ATLANTIC RFG.  CO. V. PUBLIC
SERV. COMM'N (CATCO), 360 U.S. 378, THAT THE COMMISSION SHOULD HAVE
DONE MORE. 

THE COURT BEGAN IN CATCO BY STATING THAT THE NATURAL GAS ACT "WAS SO
FRAMED AS TO AFFORD CONSUMERS A COMPLETE PERMANENT AND EFFECTIVE BOND
OF PROTECTION FROM EXCESSIVE RATES AND CHARGES."  360 U.S.,AT 388.  THE
COURT THEN NOTED THAT THE ACT REQUIRED THAT ALL RATES CHARGED BE "JUST
AND REASONABLE."  HOWEVER, THE COURT STATED THAT THE DETERMINATION OF
JUST AND REASONABLE RATES UNDER SECS. 4 AND 5 WAS PROVING TO BE
INORDINATELY TIME-CONSUMING, AND THAT, BECAUSE THOSE RATES BECAME
EFFECTIVE ONLY PROSPECTIVELY, THE CONSUMER HAD NO PROTECTION FROM
EXCESS CHARGES COLLECTED DURING THE PENDENCY OF THOSE PROCEEDINGS.  THE
COURT SAID: 

     "(THE INORDINATE DELAY PRESENTLY EXISTING IN THE PROCESSING OF

  SEC. 5 PROCEEDINGS REQUIRES A MOST CAREFUL SCRUTINY AND

  RESPONSIBLE REACTION TO INITIAL PRICE PROPOSALS OF PRODUCERS

  UNDER SEC. 7 . . . THE FACT THAT PRICES HAVE LEAPED FROM ONE

PLATEAU TO THE HIGHER LEVELS OF ANOTHER . . . (MAKES) PRICE A

  CONSIDERATION OF PRIME IMPORTANCE.  THIS IS THE MORE IMPORTANT

  DURING THIS FORMATIVE PERIOD WHEN THE GROUND RULES OF PRODUCER

  REGULATION ARE BEING EVOLVED . . . THE CONGRESS, IN SEC. 7(E),

  HAS AUTHORIZED THE COMMISSION TO CONDITION CERTIFICATES IN SUCH

  MANNER AS THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE. 

  WHERE THE PROPOSED PRICE IS NOT IN KEEPING WITH THE PUBLIC

  INTEREST BECAUSE IT IS OUT OF LINE OR BECAUSE ITS APPROVAL MIGHT

  RESULT IN A TRIGGERING OF GENERAL PRICE RISES OR AN INCREASE IN

  THE APPLICANT'S EXISTING RATES BY REASON OF 'FAVORED NATION'

 CLAUSES OR OTHERWISE, THE COMMISSION IN THE EXERCISE OF ITS

  DISCRETION MIGHT ATTACH SUCH CONDITIONS AS IT BELIEVES

  NECESSARY."  360 U.S.,AT 391. 

AFTER THE CATCO DECISION, THE COMMISSION, UNDER THE SCRUTINY OF THE
COURTS, BEGAN TO WORK OUT A SYSTEM FOR DETERMINING THE MAXIMUM INITIAL
PRICES AT WHICH GAS SHOULD MOVE, PURSUANT TO CONTRACTS OF SALE, DURING
THE INTERVAL PRECEDING ESTABLISHMENT OF JUST AND REASONABLE RATES.  IT
BASED THIS "IN-LINE" PRICE UPON CURRENT PRICES FOR GAS IN THE AREA OF
THE PROPOSED SALE, TAKING INTO ACCOUNT THE POSSIBILITY THAT THE
PROPOSED RATE MIGHT RESULT IN OTHER PRICE RISES DUE TO MOST-FAVORED
NATION CLAUSES.  /2/  THE COMMISSION AND COURTS GENERALLY EXCLUDED FROM
CONSIDERATION OR GAVE DIMINISHED WEIGHT TO THOSE CURRENT PRICES WHICH
WERE "SUSPECT" BECAUSE THEY WERE EMBODIED IN PERMANENT CERTIFICATES
STILL SUBJECT TO JUDICIAL REVIEW; BECAUSE THEY WERE CONTAINED IN
TEMPORARY CERTIFICATES ISSUED ON THE EX PARTE REPRESENTATIONS OF
PRODUCERS; OR BECAUSE THEY HAD BEEN CERTIFICATED IN PROCEEDINGS WHICH
OCCURRED BEFORE THIS COURT'S CATCO DECISION OR IN PROCEEDINGS FROM
WHICH REPRESENTATIVES OF EAST COAST CONSUMERS AND DISTRIBUTORS
(COMMONLY REFERRED TO AS THE "SEABOARD INTERESTS") HAD BEEN ERRONEOUSLY
EXCLUDED.  /3/  AFTER SOME HESITATION, /4/  THE COMMISSION DECIDED TO
BAR PRODUCERS FROM PRESENTING COST EVIDENCE AT IN-LINE PRICE
PROCEEDINGS, ON THE GROUND THAT ITS ADMISSION WOULD MAKE THE HEARINGS
TOO LONG-DRAWN-OUT.  AFTER DETERMINING THE IN-LINE PRICE, THE
COMMISSION CONDITIONED THE PERMANENT CERTIFICATE TO PROVIDE THAT THE
PRODUCER COULD NOT INITIALLY SELL THE GAS AT A GREATER PRICE.  THE
COMMISSION ALSO BEGAN TO CONDITION CERTIFICATES SO AS TO LIMIT THE
LEVEL TO WHICH THE PRICE MIGHT BE RAISED, PURSUANT TO ESCALATION
CLAUSES IN THE CONTRACT, DURING A GIVEN PERIOD OR PENDING COMPLETION OF
THE RELEVANT AREA RATE PROCEEDING.  /5/ 

THIS COURT GENERALLY APPROVED THIS METHOD OF REGULATION IN UNITED
GAS IMPROVEMENT CO. V. CALLERY PROPERTIES, INC., 382 U.S. 223.  THERE
THE COURT HELD THAT THE COMMISSION MIGHT PROPERLY REFUSE TO HEAR COST
EVIDENCE IN IN-LINE PROCEEDINGS, AND THAT THE COMMISSION MIGHT IMPOSE
MORATORIA ON PRICE INCREASES ABOVE SPECIFIED LEVELS.  THE COURT ALSO
HELD IN CALLERY THAT WHEN ISSUANCE OF PERMANENT CERTIFICATES IS HELD ON
JUDICIAL REVIEW TO HAVE BEEN ERRONEOUS, THE COMMISSION MAY ON REMAND
INSERT IN THE NEW CERTIFICATES CONDITIONS REQUIRING REFUND OF AMOUNTS
COLLECTED UNDER THE ERRONEOUSLY ISSUED CERTIFICATES IN EXCESS OF THE
SUBSEQUENTLY DETERMINED IN-LINE PRICE. 

THE CASES NOW BEFORE US ORIGINATED IN PRODUCER APPLICATIONS FOR
PERMANENT CERTIFICATES TO SELL GAS PRODUCED IN THREE TEXAS RAILROAD
COMMISSION DISTRICTS ON THE TEXAS GULF COAST, UNDER CONTRACTS ENTERED
INTO BETWEEN 1958 AND 1963.  THE COMMISSION'S CONDITIONAL CERTIFICATION
OF PROPOSED SALES IN DISTRICT 4, 31 F.P.C. 623, WAS APPEALED TO THE
COURT OF APPEALS FOR THE TENTH CIRCUIT.  THAT COURT UPHELD THE
COMMISSION'S PRICE LINE AGAINST CHALLENGES BY BOTH PRODUCERS AND THE
SEABOARD INTERESTS, REJECTING IN PARTICULAR THE CHARGE OF THE SEABOARD
INTERESTS THAT THE COMMISSION ERRED IN TAKING ACCOUNT OF PRICES AT
WHICH GAS HAD BEEN SOLD UNDER TEMPORARY CERTIFICATES.  370 F.2D 181. 
IN THE SAME OPINION, THE TENTH CIRCUIT STATED THAT THE COMMISSION HAD
NO POWER TO ORDER REFUNDS OF AMOUNTS COLLECTED BY PRODUCERS IN THE PAST
UNDER TEMPORARY CERTIFICATES WHICH CONTAINED NO REFUND CONDITIONS AND
HAD NOT BEEN APPEALED, AND IT SUBSEQUENTLY REITERATED THAT VIEW IN
REVERSING ON APPEAL A COMMISSION DECISION, 36 F.P.C. 309, ORDERING THE
DISTRICT 4 PRODUCERS TO MAKE SUCH REFUNDS.  376 F.2D 578. 

ORDERS OF THE COMMISSION CONDITIONALLY CERTIFICATING THE PROPOSED
SALES IN DISTRICTS 2 AND 3, 34 F.P.C. 897 AND 930, WERE APPEALED
TOGETHER TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 
IN A SINGLE OPINION, THAT COURT HELD THAT IN THE CIRCUMSTANCES OF THE
CASES BEFORE IT THE COMMISSION HAD ERRED IN GIVING WEIGHT TO SALES
UNDER TEMPORARY CERTIFICATES WHEN IT SET THE IN-LINE PRICES.  NO ISSUE
AS TO REFUND POWER WAS RAISED IN THE DISTRICT OF COLUMBIA APPEAL, BUT
THE COURT DID HOLD THAT THE COMMISSION COMMITTED FURTHER ERROR IN
RESERVING TO PIPELINE PROCEEDINGS THE QUESTION, RAISED BY SEABOARD
INTERESTS, OF WHETHER THERE WAS A PUBLIC NEED FOR THE GAS WHICH WAS TO
BE SOLD.  126 U.S.APP.D.C. 26, 373 F.2D 816. 

WE GRANTED CERTIORARI AND CONSOLIDATED THE CASES FOR ARGUMENT, 389
U.S. 811, TO CONSIDER THE FOLLOWING MATTERS:  (A) DID THE COMMISSION
ERR IN DETERMINING THE IN-LINE PRICES HERE IN ISSUE?  (2) MAY THE
COMMISSION ORDER REFUNDS OF AMOUNTS COLLECTED UNDER UNCONDITIONED
TEMPORARY CERTIFICATES IN EXCESS OF THE EVENTUALLY DETERMINED IN-LINE
PRICE?  (3) MUST THE COMMISSION, ON REQUEST OF INTERESTED PARTIES,
DECIDE IN THE CERTIFICATION PROCEEDING ITSELF WHETHER THE GAS TO BE
SOLD IS ACTUALLY NEEDED BY THE PUBLIC, OR MAY IT PROPERLY DEAL WITH
THAT ISSUE ONLY IN PIPELINE PROCEEDINGS?  FOR REASONS WHICH FOLLOW, WE
AFFIRM THE DECISION OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT AND
REVERSE THAT OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT ON THE IN-LINE PRICE QUESTION.  WE REVERSE THE DECISION OF THE
TENTH CIRCUIT ON THE REFUND ISSUE AND THAT OF THE DISTRICT OF COLUMBIA
CIRCUIT ON THE MATTER OF "NEED."  WE UPHOLD THE ORDERS OF THE
COMMISSION IN FULL. 

        I. 

THE FIRST ISSUE IS WHETHER THE COMMISSION ACTED CORRECTLY IN SETTING
THE IN-LINE PRICES HERE UNDER REVIEW.  IN ORDER ADEQUATELY TO RESOLVE
THAT QUESTION, IT IS NECESSARY TO HAVE A MORE PRECISE IDEA OF THE
FUNCTIONS OF IN-LINE PRICES. 

ONE FUNCTION OF AN IN-LINE PRICE IS THAT IT SERVES AS A "CEILING" ON
THE RATE AT WHICH GAS MAY BE SOLD UNDER THE CERTIFICATE CONTAINING THE
PRICE CONDITION.  HOWEVER, ITS EFFECT IN PREVENTING CONTRACTUALLY
AUTHORIZED PRICE RISES IS LEGALLY LIMITED, FOR UNDER SEC. 4 OF THE ACT
A PRODUCER IS FREE, UPON 30 DAYS' NOTICE TO THE COMMISSION, TO RAISE
ITS PRICE TO THE EXTENT THAT ITS CONTRACT PERMITS, SUBJECT TO THE
COMMISSION'S POWER UNDER SEC. 4(E) TO SUSPEND THE EFFECTIVENESS OF THE
INCREASE FOR A PERIOD OF FIVE MONTHS AND TO ORDER REFUNDS IF THE
INCREASED RATE TURNS OUT TO BE HIGHER THAN THE JUST AND REASONABLE RATE
THEREAFTER FOUND FOR THE AREA.  /6/ 

A SECOND FUNCTION OF AN IN-LINE PRICE IS THAT IT CONSTITUTES A
"FLOOR" BELOW WHICH THE COMMISSION MAY NOT ORDER REFUNDS UNDER SEC.
4(E) OF THE ACT.  SECTION 4(E) STATES THAT UPON THE FILING OF A SEC. 4
RATE INCREASE, THE COMMISSION MAY ON ITS OWN AUTHORITY UNDERTAKE A
HEARING TO DETERMINE WHETHER THE RATE IS JUST AND REASONABLE,
SIMULTANEOUSLY SUSPENDING THE RATE INCREASE FOR UP TO FIVE MONTHS.  IF
THE SUSPENSION PERIOD EXPIRES BEFORE THE COMPLETION OF THE HEARING, THE
COMMISSION MAY 

"BY ORDER, REQUIRE THE NATURAL-GAS COMPANY TO FURNISH A BOND . . .
TO REFUND ANY AMOUNTS ORDERED BY THE COMMISSION, TO KEEP ACCURATE
ACCOUNTS IN DETAIL OF ALL AMOUNTS RECEIVED BY REASON OF SUCH INCREASE .
. . , AND, UPON COMPLETION OF THE HEARING AND DECISION, TO (SIC) ORDER
SUCH NATURAL-GAS COMPANY TO REFUND, WITH INTEREST, THE PORTION OF SUCH
INCREASED RATES OR CHARGES BY ITS DECISION FOUND NOT JUSTIFIED."  THE
COMMISSION'S PRACTICE HAS BEEN THAT WHEN A PRODUCER RILES A RATE
INCREASE ON A CONTRACT IN AN AREA WHERE AN AREA RATE PROCEEDING IS IN
PROGRESS, ITS APPLICATION IS CONSOLIDATED INTO THE AREA RATE
PROCEEDING, THEREBY RENDERING IT SUBJECT TO THE REFUND PROVISION OF
SEC. 4(E).  /7/ 

IT HAS SOMETIMES BEEN CONTENDED THAT WHEN A PRODUCER OPERATING UNDER
A NONREVIEWABLE PERMANENT CERTIFICATE INCREASES ITS PRICE UNDER SEC. 4,
THE PERMANENTLY CERTIFICATED PRICE IS NOT A LOWER LIMIT ON THE REFUND
POWER, AND THAT IF THE EVENTUAL JUST AND REASONABLE AREA RATE IS BELOW
THE PERMANENTLY CERTIFICATED PRICE, THE COMMISSION MAY ORDER A REFUND
NOT MERELY OF THE PRICE INCREASE BUT OF THE ENTIRE DIFFERENCE BETWEEN
THE INCREASED RATE AND THE JUST AND REASONABLE RATE.  /8/  THE
COMMISSION HAS NEVER PASSED ON THIS CONTENTION, /9/  AND THIS COURT HAS
TWICE REJECTED IT IN DICTUM.  IN SUNRAY MID-CONTINENT OIL CO. V. FPC,
364 U.S. 137, 146, THE COURT INTERPRETED SEC. 4(E) AS MEANING THAT "THE
COMMISSION IS EMPOWERED TO REQUIRE THE COMPANY TO COLLECT THE INCREMENT
UNDER BOND AND ACCOUNTING, AND REFUND IT IF IT COULD NOT MAKE OUT ITS
CASE FOR THE INCREASE."  IN CALLERY, SUPRA, THE COURT STATED THAT "(THE
FIXING OF AN INITIAL 'IN-LINE' PRICE ESTABLISHES A FIRM PRICE AT WHICH
A PRODUCER MAY OPERATE, PENDING DETERMINATION OF A JUST AND REASONABLE
RATE, WITHOUT ANY CONTINGENT OBLIGATION TO MAKE REFUNDS SHOULD A JUST
AND REASONABLE RATE TURN OUT TO BE LOWER THAN THE 'IN-LINE' PRICE." 
382 U.S.,AT 227.     WE ADHERE TO THE DICTA IN CALLERY AND SUNRAY MID
CONTINENT.  THAT OUTCOME COMPORTS BETTER WITH THE LANGUAGE OF SEC. 4(E)
THAN DOES THE ALTERNATIVE.  IT IS TRUE THAT SEC. 4(E) IN TERMS GIVES
THE COMMISSION POWER TO REFUND "THE PORTION OF SUCH INCREASED RATES OR
CHARGES" FOUND TO BE EXCESSIVE, AND DOES NOT EXPRESSLY LIMIT THE REFUND
TO THE RATE INCREASE OR INCREMENT.  HOWEVER, THE ACCOUNTING PROVISION,
WHICH APPEARS EARLIER IN THE SAME SENTENCE, REQUIRES THAT THE PRODUCER
ACCOUNT ONLY FOR THE "AMOUNTS RECEIVED BY REASON OF SUCH INCREASE."  IF
IT HAD BEEN INTENDED THAT THE REFUND OBLIGATION SHOULD EXTEND TO
GREATER AMOUNTS, THE ACCOUNTING REQUIREMENT LOGICALLY SHOULD HAVE
EXTENDED TO THEM ALSO.  VIEWING THE ACT MORE BROADLY, THERE IS ANOTHER
REASON WHY THIS INTERPRETATION OF SEC. 4(E) IS PREFERABLE.  IT SEEMS
INCONTESTABLE THAT IF A PRODUCER CONSISTENTLY SELLS GAS AT THE PRICE
SPECIFIED IN A FINAL, PERMANENT CERTIFICATE, AND DOES NOT ATTEMPT TO
INCREASE ITS PRICE, THE COMMISSION MAY NOT ORDER IT TO MAKE REFUNDS
SIMPLY BECAUSE THE JUST AND REASONABLE RATE FOR ITS AREA TURNS OUT TO
BE BELOW THE IN-LINE PRICE.  THIS WOULD AMOUNT TO A REPARATION ORDER,
AND THIS COURT HAS REPEATEDLY HELD THAT THE COMMISSION HAS NO
REPRATIONG POWER.  /10/  IT WOULD BE ANOMALOUS TO TREAT AN INCREASED
PRICE AS A TRIGGER FOR A REFUND OBLIGATION WHICH WOULD LEAVE THE
PRODUCER WITH A SMALLER NET RETURN THAN IF IT HAD NEVER INCREASED ITS
PRICE AT ALL.  WE THEREFORE CONSIDER AND HOLD THAT AN INITIAL PRICE
WHICH IS AUTHORIZED IN A FINAL, UNCONDITIONED PERMANENT CERTIFICATE IS
A LOWER LIMIT BELOW WHICH A REFUND CANNOT BE ORDERED UNDER SEC. 4(E). 

SINCE AN INITIAL PRICE AND A REFUND FLOOR CONCEIVABLY MAY SERVE
SIGNIFICANTLY DIFFERENT ENDS, /11/  WE SHALL GIVE SEPARATE
CONSIDERATION TO THESE TWO FUNCTIONS OF THE IN-LINE PRICES NOW UNDER
REVIEW.  IT IS APPROPRIATE TO BEGIN WITH THE INITIAL PRICE FUNCTION,
BECAUSE IN THE PROCEEDINGS BEFORE US THE COMMISSION APPARENTLY VIEWED
THE IN-LINE PRICES IT WAS SETTING ALMOST ENTIRELY AS INITIAL PRICES AND
GAVE NO EXPLICIT CONSIDERATION TO THEIR EFFECTS AS REFUND FLOORS.  /12/

        A. 

THE THRUST OF THIS COURT'S CATCO OPINION WAS THAT THE COMMISSION
SHOULD USE ITS SEC. 7 CONDITIONING POWER TO PREVENT LARGE JUMPS IN
INITIAL CONTRACT PRICES, PENDING THE DETERMINATION OF JUST AND
REASONABLE RATES.  AT ONE TIME, THE COMMISSION APPARENTLY HOPED THAT BY
RECEIVING ABRIDGED COST EVIDENCE IT COULD ESTABLISH MAXIMUM INITIAL
PRICES WHICH WOULD BE NEAR APPROXIMATIONS OF THE JUST AND REASONABLE
RATES WHICH WOULD LATER BE ESTABLISHED.  THE COMMISSION EVENTUALLY
CONCLUDED THAT THIS HOPE WAS ILL-FOUNDED, AND IN CALLERY THIS COURT
APPROVED THE COMMISSION'S EXCLUSION OF COST DATA FROM CERTIFICATION
HEARINGS.  SEE 382 U.S.,AT 228 AND N. 3. 

IN VIEW OF THE COMMISSION'S DECISION TO RELY SOLELY UPON
CONTEMPORANEOUS CONTRACT PRICES IN SETTING INITIAL RATES, THERE CAN BE
NO ASSURANCE THAT AN INITIAL PRICE ARRIVED AT BY THE COMMISSION WILL
BEAR ANY PARTICULAR RELATIONSHIP TO THE JUST AND REASONABLE RATE.  ANY
SUCH ASSURANCE WOULD NECESSARILY BE BASED ON A BELIEF THAT THE CURRENT
CONTRACT PRICES IN AN AREA APPROXIMATE CLOSELY THE "TRUE" MARKET PRICE-
THE JUST AND REASONABLE RATE.  ALTHOUGH THERE IS DOUBTLESS SOME
RELATIONSHIP, AND SOME ECONOMISTS HAVE ARGUED THAT IT IS INTIMATE, /13/
SUCH A BELIEF WOULD CONTRADICT THE BASIC ASSUMPTION THAT HAS CAUSED
NATURAL GAS PRODUCTION TO BE SUBJECTED TO REGULATION AND WHICH MUST
HAVE UNDERLAIN THIS COURT'S CATCO DECISION-- NAMELY, THAT THE
PURCHASING PIPELINE, WHOSE COST OF PURCHASE IS A CURRENT OPERATING
EXPENSE WHICH THE PIPELINE IS ENTITLED TO PASS ON TO ITS CUSTOMERS AS
PART OF ITS RATES, LACKS SUFFICIENT INCENTIVE TO BARGAIN PRICES DOWN. 
/14/ 

ONE WAY IN WHICH THE COMMISSION MIGHT HAVE FULFILLED THE CATCO
MANDATE TO ENSURE THAT THE LACK OF PURCHASER BARGAINING INCENTIVE DID
NOT RESULT IN TOO DRASTIC AN INTERIM PRICE RISE WOULD HAVE BEEN TO
FREEZE PRICES AT THEIR PRE-CATCO LEVELS.  HOWEVER, THIS WOULD HAVE
RESULTED IN LOCKING INTO THE PRICE STRUCTURE SOME OF THE ABRUPT LEAPS
IN PRICE WHICH HAD OCCURRED PRIOR TO CATCO, AS WELL AS RISKING THE
EVENTUAL EROSION OF PRODUCER INCENTIVE THROUGH DISREGARD OF RISING
COSTS.  HENCE, IT WAS REASONABLE FOR THE COMMISSION TO SET INITIAL
PRICES BY REFERENCE TO CONTEMPORARY CONTRACT PRICES, WHICH, THOUGH NOT
AN ACCURATE REFLECTION OF THE "TRUE" MARKET PRICE, WERE THE ONLY
INDIRECT EVIDENCE AVAILABLE TO THE COMMISSION OF COST TRENDS.  AND IT
WAS ALSO WITHIN THE COMMISSION'S DISCRETION TO EXCLUDE, WHERE POSSIBLE,
THOSE CONTRACT PRICES STILL SUBJECT TO COMMISSION AND COURT REVIEW,
BECAUSE THOSE PRICES MIGHT REFLECT PRICE JUMPS IMPERMISSIBLE UNDER
CATCO. 

THUS, THE INITIAL PRICE DOCTRINE AS IT HAD DEVELOPED BY THE TIME OF
CALLERY, SEE 382 U.S.,AT 226-228, WAS A RATIONAL AND PERMISSIBLE WAY OF
IMPLEMENTING THE CATCO REQUIREMENT.  TURNING TO THE PARTICULAR
PROCEEDING NOW UNDER REVIEW, WE HOLD THAT THE METHODS THERE USED BY THE
COMMISSION WERE ALSO ACCEPTABLE WAYS OF DETERMINING INITIAL PRICES. 

ON SEPTEMBER 28, 1960, THE COMMISSION BEGAN ITS POST-CATCO
REGULATION OF SALES IN THE DISTRICTS HERE INVOLVED BY ISSUING ITS
STATEMENT OF GENERAL POLICY NO. 61-1, 24 F.P.C. 818.  THE POLICY
STATEMENT ANNOUNCED THE CEILING PRICE AT WHICH NEW SALES WOULD BE
CERTIFICATED IN EACH DISTRICT.  FOR EACH OF TEXAS RAILROAD COMMISSION
DISTRICTS 2, 3, AND 4, THE POLICY STATEMENT CEILING WAS 18[ PER MCF
(THOUSAND CUBIC FEET) OF GAS.  WITH RESPECT TO DISTRICT 4, THE
COMMISSION ON AUGUST 30, 1962, DETERMINED AN IN-LINE PRICE OF 15[ PER
MCF FOR SALES CONTRACTED PRIOR TO SEPTEMBER 28, 1960, THE DATE OF THE
POLICY STATEMENT.  28 F.P.C. 401.  THAT DECISION IS NOT IN ISSUE HERE. 
ON THE SAME DATE, THE COMMISSION SCHEDULED A PROCEEDING, KNOWN AS THE
AMERADA PROCEEDING, TO DETERMINE THE IN-LINE PRICE FOR SALES CONTRACTED
BETWEEN SEPTEMBER 28, 1960, AND AUGUST 30, 1962.  28 F.P.C. 396. 

ON MARCH 23, 1964, THE COMMISSION TERMINATED THE AMERADA PROCEEDING
BY ISSUING THE FIRST OF THE ORDERS HERE UNDER REVIEW.  31 F.P.C. 623. 
THE COMMISSION DETERMINED THAT THE IN-LINE PRICE FOR THE PERIOD UNDER
STUDY SHOULD BE 16[ PER MCF.  IN REACHING THIS CONCLUSION, THE
COMMISSION RELIED PRIMARILY ON A COMPARISON OF PRICES IN CONTRACTS
ENTERED INTO DURING THE TWO-YEAR LIFE OF THE POLICY STATEMENT AND THE
PRECEDING TWO YEARS, ON THE GROUND THAT THE IN-LINE PRICE SHOULD MIRROR
THE PRICE AT WHICH SUBSTANTIAL QUANTITIES OF GAS WERE CURRENTLY MOVING
IN INTERSTATE COMMERCE. 

THIS DESIRE TO REFLECT CURRENT CONDITIONS ALSO CAUSED THE COMMISSION
TO GIVE SOME WEIGHT TO PRICES UNDER TEMPORARY CERTIFICATES, BECAUSE
ONLY 1.4% OF THE GAS IN THE AREA WAS CURRENTLY MOVING UNDER PERMANENT
CERTIFICATES.  THE COMMISSION RECOGNIZED THAT THESE TEMPORARY PRICES
WERE "SUSPECT," AND THAT THEY LARGELY CONSISTED OF THE VERY PRICES
WHOSE "IN-LINENESS" WAS THEN BEING DETERMINED.  HOWEVER, THE COMMISSION
DECIDED THAT THE RISK OF CONSIDERING SUCH PRICES WAS OVERBALANCED BY
THE FACT THAT NOT TO TAKE THEM INTO ACCOUNT WOULD BE TO IGNORE THE
PRICES AT WHICH THE GREAT BULK OF GAS WAS THEN MOVING IN COMMERCE.  THE
COMMISSION DID TAKE THE UNRELIABILITY OF THE TEMPORARY PRICES INTO
CONSIDERATION WHEN IT REFUSED TO ACCEPT TH 17.2[ AVERAGE CONTRACT PRICE
FOR ALL SALES AS THE IN-LINE PRICE, RELYING AS WELL UPON ITS BELIEF
THAT "THE TEACHINGS OF CATCO REQUIRE THAT WE DRAW THE LINE AT THE
LOWEST REASONABLE LEVEL."  31 F.P.C.,AT 736.  THE COMMISSION ALSO
PLACED "SOME MEASURE OF WEIGHT" ON ITS POLICY STATEMENT GUIDELINE PRICE
PROMULGATED IN 1960.  THE COMMISSION FURTHER NOTED THAT 82% OF THE GAS
SOLD UNDER POST-POLICY STATEMENT CONTRACTS MOVED AT 16[ OR MORE PER
MCF, AND STATED THAT "(IN THE FINAL ANALYSIS OUR ACTION IN FIXING THE
PRICE AT WHICH THESE SALES SHOULD BE CERTIFICATED REQUIRES AN EXERCISE
OF OUR INFORMED JUDGMENT AND UTILIZATION OF THE EXPERTISE DEVELOPED IN
THE HANDLING OF THOUSANDS OF PRODUCER CERTIFICATE APPLICATIONS."  31
F.P.C.,AT 636-637. 

ON APPEAL, THE TENTH CIRCUIT APPROVED THE COMMISSION'S PARTIAL
RELIANCE UPON TEMPORARY PRICES AND UPON ITS POLICY STATEMENT.  370 F.2D
181.  THAT DECISION IS CHALLENGED BY THE SEABOARD INTERESTS, WHO CLAIM
THAT THE COMMISSION'S RELIANCE UPON THESE "IMPROPER" FACTORS CAUSED IT
TO SET TOO HIGH A PRICE FOR THE POST-POLICY STATEMENT PERIOD. 

WE CANNOT CONCLUDE, GIVEN THE EXTRAORDINARY DISCRETION WHICH
NECESSARILY ATTENDS SUCH A FINDING AS THE COMMISSION WAS REQUIRED TO
MAKE, THAT THE COMMISSION TOOK INTO ACCOUNT ANY IMPERMISSIBLE FACTORS
OR THAT THE RESULTING INITIAL PRICE WAS TOO HIGH AS A MATTER OF LAW. 
THE SEABOARD INTERESTS APPARENTLY CONCEDE THAT CONTRACT PRICES ARE
RELEVANT IN FIXING INITIAL PRICES, FOR THEY DO NOT OBJECT TO THE
COMMISSION'S CONSIDERATION OF PERMANENTLY CERTIFICATED PRICES.  THEY
COMPLAIN ONLY OF THE WEIGHT GIVEN THE GUIDELINE AND TEMPORARILY
CERTIFICATED PRICES.  HOWEVER, PERMANENTLY CERTIFICATED PRICES ARE
GERMANE ONLY BECAUSE THEY PROVIDE SOME INDICATION OF COST TRENDS.  SEE
SUPRA, AT 25-26.  GUIDELINE AND TEMPORARY PRICES MAY SERVE THE SAME
FUNCTION. 

THE COMMISSION'S DISTRICT 4 GUIDELINE PRICE, THOUGH ITS EXACT LEVEL
WAS ADMITTEDLY ARBITRARY, DID PLACE A "LID" ON CONTRACT PRICES IN THE
AREA FOR THE PERIOD.  THE GUIDELINE PRICE WAS THEREFORE RELEVANT TO THE
DETERMINATION OF INITIAL PRICES INSOFAR AS CONTRACT PRICES IN THE AREA
WOULD HAVE BEEN HIGHER BUT FOR THE GUIDELINE PRICE, AND TO THE EXTENT
THAT THOSE HIGHER PRICES WOULD HAVE REPRESENTED COST TRENDS AND NOT
MERELY THE ABSENCE OF A FREE MARKET.  THE COMMISSION EVIDENTLY DID NOT
GIVE THE GUIDELINE PRICE GREAT WEIGHT, SINCE IT SET THE INITIAL RATE
SOME 2[ LOWER.  WE THINK THAT THE WEIGHT GIVEN WAS JUSTIFIED. 

CONSIDERATION OF THE TEMPORARY PRICES WAS ALSO WARRANTED BECAUSE
THEY POINTED TO COST TRENDS, ESPECIALLY IN LIGHT OF THE FACT THAT 98.6%
OF THE GAS WAS THEN FLOWING UNDER TEMPORARY CERTIFICATES.  THEIR USE
HAD AN ADDITIONAL JUSTIFICATION.  IN DISTRICT 4, THE SEABOARD INTERESTS
EVIDENTLY CHALLENGED ALMOST ALL APPLICATIONS FOR PERMANENT CERTIFICATES
AT PRICES ABOVE 15[ PER MCF, THEREBY GREATLY DELAYING THE ISSUANCE OF
PERMANENT CERTIFICATES AT HIGHER LEVELS.  /15/ HAD THE COMMISSION
REFUSED TO CONSIDER ANY BUT PERMANENTLY CERTIFICATED PRICES IN SETTING
THE INITIAL PRICE, IT WOULD IN EFFECT HAVE ALLOWED THE SEABOARD
INTERESTS TO DETERMINE THAT PRICE.  WE CONSIDER THAT THE COMMISSION DID
NOT ABUSE ITS DISCRETION IN GIVING THE TEMPORARY PRICES SOME WEIGHT. 

FINALLY, WE HOLD THAT THE CEILING PRICE OF 16[ WAS WITHIN THE "ZONE
OF REASONABLENESS" WITHIN WHICH THE COURTS MAY NOT SET ASIDE RATES
ADOPTED BY THE COMMISSION, SEE, E.G., FPC V. NATURAL GAS PIPELINE CO.,
315 U.S. 575, 585-586, AND THAT IT FULFILLED THE CATCO MANDATE NOT TO
ALLOW ABRUPT PRICE RISES.  THE 16[ PRICE WAS AT THE LOWER END OF THE
SPECTRUM OF CURRENT PRICES CONSIDERED BY THE COMMISSION, AND IT
EMBODIED ONLY A 1[ PRICE RISE. 

TO DETERMINE THE IN-LINE PRICES IN TEXAS RAILROAD COMMISSION
DISTRICTS 2 AND 3, FOR WHICH THE POLICY STATEMENT HAD ALSO SET A
CEILING PRICE OF 18[ PER MCF FOR SALES AFTER SEPTEMBER 28, 1960, THE
COMMISSION SET TWO SEPARATE PROCEEDINGS.  THE DISTRICT 2 OR SINCLAIR
PROCEEDING, SCHEDULED ON MARCH 25, 1964, INVOLVED THE ESTABLISHMENT OF
IN-LINE PRICES FOR SALES UNDER CONTRACTS EXECUTED BETWEEN MAY 12, 1958,
AND JANUARY 1, 1964.  /16/  THE DISTRICT 3 OR HAWKINS PROCEEDING,
INITIATED ON MARCH 30, 1964, INVOLVED SALES UNDER CONTRACTS EXECUTED
BETWEEN SEPTEMBER 16, 1958, AND OCTOBER 1, 1963.  SEE 31 F.P.C. 725. 
IN BOTH PROCEEDINGS, THE COMMISSION BEGAN BY DIVIDING ALL OF THE SALES
IN QUESTION INTO TWO GROUPS, THOSE CONTRACTED PRIOR TO THE DATE OF THE
POLICY STATEMENT AND THOSE CONTRACTED AFTERWARD.  THE TWO PROCEEDINGS
WERE TERMINATED BY TWO COMMISSION ORDERS OF SEPTEMBER 22, 1965,
DETERMINING IN-LINE PRICES FOR EACH AREA DURING EACH PERIOD.  34 F.P.C.
897, 930. 

IN THE DISTRICT 2 OR SINCLAIR PROCEEDING THE COMMISSION SET AN
INITIAL PRICE OF 15[ PER MCF FOR THE PRE-POLICY STATEMENT PERIOD AND
16[ FOR THE LATER PERIOD.  THE 15[ PRICE IS NOT HERE IN ISSUE.  THE
SEABOARD INTERESTS CONTEND THAT THE 16[ PRICE WAS TOO HIGH.  IN FIXING
THE 16[ PRICE, THE COMMISSION TOOK INTO ACCOUNT FIVE FACTORS.  FIRST,
IT APPARENTLY GAVE FULL WEIGHT TO THE PERMANENTLY CERTIFICATED PRICES
AT WHICH ABOUT 40% OF THE GAS IN THE AREA WAS CURRENTLY MOVING. 
SECOND, IT GAVE SOME BUT "NOT UNDUE" FORCE TO THE TEMPORARY PRICES AT
WHICH 60% OF THE GAS CURRENTLY FLOWED.  THIRD, IT ASSIGNED "SOME
WEIGHT" TO THE ORIGINAL, UNCONDITIONED CONTRACT PRICES IN THE AREA, ON
THE GROUND THAT THOSE PRICES "DO SHOW ECONOMIC TRENDS IN THE AREA."  34
F.P.C.,AT 937.  FOURTH, THE COMMISSION TOOK INTO CONSIDERATION THE 16[
VOLUMETRIC MEDIAN PRICE AND THE 15.29[ VOLUMETRIC WEIGHTED AVERAGE
PRICE OF ALL PERMANENTLY AND TEMPORARILY CERTIFICATED SALES IN THE AREA
AFTER THE DATE OF THE POLICY STATEMENT.  FIFTH, IT TOOK INTO ACCOUNT
THE FACT THAT 53% OF THE GAS IN THE AREA WAS PRESENTLY MOVING AT PRICES
AT OR BELOW 16[. 

IN THE DISTRICT 3 OR HAWKINS PROCEEDING, THE COMMISSION FIXED AN
INITIAL PRICE OF 17[ PER MCF FOR THE POST-POLICY STATEMENT PERIOD AND
REAFFIRMED AN EARLIER-ESTABLISHED 16[ INITIAL PRICE FOR PREVIOUS
SALES.  THE SEABOARD INTERESTS ATTACK THE 17[ PRICE AS TOO HIGH. 
SUPERIOR OIL COMPANY ASSERTS THAT BOTH PRICES ARE TOO LOW.  WE CONFINE
OURSELVES AT PRESENT TO THE CONTENTION OF THE SEABOARD INTERESTS.  IN
ARRIVING AT THE 17[ PRICE, THE COMMISSION CONSIDERED FIVE FACTORS. 
FIRST, IT GAVE FULL WEIGHT TO THE PERMANENTLY CERTIFICATED SALES OF
MODERATE VOLUMES OF GAS AT 15[ AND 16.2[, A SMALL VOLUME AT 16.5[, AND
LARGE VOLUMES AT 18[.  SECOND, IT ACCORDED "SOME WEIGHT" TO TEMPORARY
PRICES.  THIRD, IT NOTED THAT THE 17[ PRICE "(REFLECTS) THE WEIGHTED
AVERAGE PRICE OF 16.17 CENTS" FOR PERMANENTLY CERTIFICATED SALES.  34
F.P.C.,AT 903.  FOURTH, IT GAVE "SOME WEIGHT" TO ORIGINAL,
UNCONDITIONED CONTRACT PRICES, FOR EXACTLY THE SAME REASON AS IN
SINCLAIR.  SEE 34 F.P.C.,AT 902.  FIFTH, THE COMMISSION TOOK INTO
CONSIDERATION THE FACT THAT 43% OF ALL PERMANENTLY CERTIFICATED SALES
IN THE AREA WERE AT PRICES AT OR ABOVE 17[.     ON APPEAL, THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SUSTAINED THE CHALLENGE OF
THE SEABOARD INTERESTS TO BOTH THE SINCLAIR AND HAWKINS POST-POLICY
STATEMENT PRICES, HOLDING THAT IT WAS ERROR FOR THE COMMISSION TO GIVE
ANY CONSIDERATION TO TEMPORARY AND UNCONDITIONED CONTRACT PRICES.  126
U.S.APP.D.C. 26, 373 F.2D 816.  THAT DECISION IS ATTACKED BY ALL OF THE
PRODUCER PARTIES. 

THE PRODUCERS ASSERT THAT THE COURT OF APPEALS ERRED IN HOLDING THAT
THE COMMISSION SHOULD NOT HAVE TAKEN INTO ACCOUNT TEMPORARY AND
UNCONDITIONED CONTRACT PRICES WHEN IT FIXED THE POST-POLICY STATEMENT
PRICES FOR DISTRICTS 2 AND 3.  WE SUSTAIN THIS CONTENTION.  IT IS TRUE
THAT IN DISTRICTS 2 AND 3 A MUCH LARGER PERCENTAGE OF THE GAS WAS
CURRENTLY MOVING UNDER PERMANENT CERTIFICATES THAN IN DISTRICT 4. 
HOWEVER, FOR REASONS WHICH APPEAR IN OUR DISCUSSION OF THE DISTRICT 4
PROCEEDINGS, SEE SUPRA, AT 28-29, THE TEMPORARY AND UNCONDITIONED
CONTRACT PRICES WERE NONETHELESS GERMANE AS INDICATING COST TRENDS. 
/17/  THE COMMISSION ACKNOWLEDGED THEIR RELATIVE UNRELIABILITY BY
ACCORDING THEM ONLY A DIMINISHED FORCE.  IN THESE CIRCUMSTANCES, WE
CANNOT CONCLUDE THAT THE COMMISSION EXCEEDED ITS AUTHORITY BY GIVING
THEM ANY WEIGHT AT ALL. 

NOR DO WE FIND ANY ERROR IN THE COMMISSION'S SELECTION OF THE 16[
AND 17[ INITIAL PRICES FROM THE INFORMATION BEFORE IT.  ALTHOUGH THESE
PRICES, AND PARTICULARLY THE 17[ PRICE IN HAWKINS, RANGED NEARER THE
HIGH END OF THE PRICE SPECTRUM THAN DID THE DISTRICT 4 PRICE, WE CANNOT
SAY THAT EITHER WAS SO HIGH AS TO FALL OUTSIDE THE "ZONE OF
REASONABLENESS" WITHIN WHICH THE COMMISSION HAS RATE-SETTING
DISCRETION.  SEE SUPRA, AT 29.  AND SINCE THE INTITIAL PRICES DECIDED
UPON WERE ONLY 1[ ABOVE THOSE PREVIOUSLY PREVAILING, THEY DID NOT
BREACH THE CATCO DIRECTIVE TO AVOID EXCESSIVELY LARGE PRICE INCREASES. 

THE SUPERIOR OIL COMPANY CONTENDS THAT THE INITIAL PRICES
ESTABLISHED IN DISTRICT 3 FOR BOTH THE PRE- AND POST-POLICY STATEMENT
PERIOD WERE TOO LOW FOR A NUMBER OF REASONS, MAINLY BECAUSE THE
COMMISSION EXCLUDED FROM CONSIDERATION CERTAIN RELATIVELY HIGH PRICES
AT WHICH GAS WAS PRESENTLY BEING SOLD IN THE AREA.  ALL OF THESE
CHALLENGES WERE REJECTED BY THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE DATA CONSIDERED BY THE COMMISSION IN SETTING THE 17[ DISTRICT 3
POST-POLICY STATEMENT PRICE HAVE ALREADY BEEN DESCRIBED.  SEE SUPRA, AT
31.  IN ESTABLISHING THE 16[ PRE-POLICY STATEMENT PRICE, THE COMMISSION
TOOK INTO ACCOUNT FOUR FACTORS.  FIRST, IT GAVE FULL FORCE TO
PERMANENTLY CERTIFICATED SALES OF SMALL VOLUMES OF GAS AT PRICES BELOW
16[ AND OF COMPARATIVELY LARGE VOLUMES AT 16[ AND 16.2[.  SECOND, IT
TOOK INTO CONSIDERATION THE FACE THAT 72% OF ALL SALES, COMPRISING "A
LITTLE MORE THAN HALF" THE TOTAL VOLUME OF GAS, OCCURRED AT PRICES OF
16[ OR LESS.  THIRD, THE COMMISSION GAVE "SOME WEIGHT" TO PERMANENTLY
CERTIFICATED SALES OF VERY LARGE VOLUMES OF GAS AT 17.5[ OR ABOVE, EVEN
THOUGH IT REGARDED THOSE PRICES AS SUSPECT.  FOURTH, THE COMMISSION
APPARENTLY TOOK INTO ACCOUNT THE WEIGHTED AVERAGE PRICE OF 15.16[ FOR
ALL SALES EXCEPT THE SUSPECT SALES AT 17.5[ AND ABOVE. 

SUPERIOR'S MOST STRONGLY PRESSED CONTENTION IS THAT THE COMMISSION
ERRED IN ALLEGEDLY FAILING TO CONSIDER NINE LARGE-VOLUME SALES AT 20[
PER MCF WHEN IT SET THE 16[ INITIAL PRICE FOR THE PRE-POLICY STATEMENT
PERIOD.  THE COMMISSION RECOGNIZED IN ITS OPINION THAT THE INCLUSION OF
THESE SALES AT FULL STRENGTH WOULD HAVE A "STRONG (UPWARD) EFFECT" UPON
THE AVERAGE OF ALL PRICES FOR THE PERIOD.  HOWEVER, IT CONCLUDED THAT
THE IMPACT OF THE PRICE SHOULD BE "DISCOUNTED."  THE COMMISSION NOTED
THAT 

"SIX OF THE NINE SALES WERE INVOLVED IN TRUNKLINE GAS CO., ET AL.,
21 FPC 704 . . . , WITH RESPECT TO WHICH (THE NEW YORK PUBLIC SERVICE
COMMISSION'S) PETITION FOR REVIEW WAS DISMISSED BECAUSE NOT TIMELY." 
34 F.P.C.,AT 902.  THE COMMISSION THEN QUOTED FROM AN EARLIER DECISION,
TEXACO SEABOARD INC., 29 F.P.C. 593, 597, IN WHICH IT DISCOUNTED THE
EFFECT OF THE SAME SALES ON THE GROUND THAT THEY "WOULD HAVE BEEN SET
ASIDE, FOR FAILURE TO PERMIT A PROPER PARTY TO INTERVENE, SAVE FOR THE
PROCEDURAL DEFECT IN THE PSC REVIEW ACTION IN THE TRUNKLINE CASE."  THE
COMMISSION WENT ON TO POINT OUT THAT TWO OF THE THREE REMAINING 20[
SALES ALSO HAD BEEN CERTIFICATED IN PROCEEDINGS FROM WHICH THE
EXCLUSION OF THE NEW YORK COMMISSION HAD BEEN UPHELD ON THE SAME
PROCEDURAL GROUND.  /18/ 

WE THINK THAT THE COMMISSION ACTED WITHIN ITS DISCRETION IN
DISCOUNTING THE FORCE OF THESE 20[ SALES.  THOSE SALES WERE OUT OF LINE
WITH RESPECT TO THE PRICE STRUCTURE WHICH EMERGED AFTER CATCO, AND THE
COMMISSION HAD REASON TO BELIEVE THAT THEY WOULD HAVE BEEN SET ASIDE ON
JUDICIAL REVIEW HAD IT NOT BEEN FOR A PROCEDURAL DEFECT.  WE DO NOT
THINK THAT THE COMMISSION WAS COMPELLED TO GIVE FULL WEIGHT TO THESE
PRICES. 

SUPERIOR ALSO CONTENDS THAT THE INITIAL PRICES ESTABLISHED FOR THE
PRE-POLICY STATEMENT PERIOD WERE TOO LOW BECAUSE THE COMMISSION
EXCLUDED FROM CONSIDERATION A NUMBER OF 1955-1956 SALES AT 17.5[ TO
COASTAL TRANSMISSION COMPANY.  IN JUSTIFICATION FOR GIVING DISCOUNTED
EFFECT TO THESE PRICES, THE COMMISSION AGAIN CITED ITS TEXACO SEABOARD
DECISION, 29 F.P.C. 593, IN WHICH IT ALSO DISCOUNTED THOSE SALES. 
AMONG THE JUSTIFICATIONS PUT FORWARD IN TEXACO SEABOARD WAS THE FACT
THAT COASTAL WAS AT THE TIME OF THE SALES A NEW PIPELINE COMPANY, WHICH
NEITHER HAD A CERTIFICATE NOR WAS YET IN OPERATION, SO THAT THE PRICES
MAY HAVE INCLUDED A HIGHER-THAN-NORMAL ALLOWANCE FOR RISK.  WE THINK
THAT THIS FACTOR ALONE WAS SUFFICIENT TO JUSTIFY THE COMMISSION'S
EXERCISE OF DISCRETION IN DISCOUNTING THESE SALES. 

SUPERIOR NEXT ASSERTS THAT WITH RESPECT TO BOTH TIME PERIOD THE
COMMISSION ERRED IN FAILING TO TAKE ACCOUNT OF CERTAIN PRICES EMBODIED
IN SETTLEMENT ORDERS.  IT IS CONCEDED BY SUPERIOR THAT ALL OF THESE
SETTLEMENTS OCCURRED AT THE THEN-PREVAILING GUIDELINE OR IN-LINE PRICES
ENFORCED BY THE COMMISSION.  /19/  WE HOLD THAT THE HEARING EXAMINER
AND THE COMMISSION HAD DISCRETION TO DISREGARD THESE SALES, SINCE THEY
DID NOT SUPPLY INDEPENDENT EVIDENCE OF MARKET TRENDS. 

SUPERIOR FURTHER COMPLAINS OF THE COMMISSION'S ALLEGED FAILURE TO
TAKE ENOUGH NOTICE OF TEMPORARY PRICES AND ITS REFUSAL TO CONSIDER
PRICES OF INTRASTATE SALES.  THE COMMISSION DID GIVE SOME CONSIDERATION
TO TEMPORARY PRICES, SEE SUPRA, AT 31, 33, AND FOR REASONS WHICH APPEAR
SUFFICIENTLY FROM WHAT HAS GONE BEFORE, SEE SUPRA, AT 26, WE HOLD THAT
IT DID NOT ERR IN REFUSING TO GIVE THEM MORE WEIGHT.  WE ALSO HOLD THAT
THE COMMISSION ACTED WITHIN ITS DISCRETION WHEN IT REJECTED EVIDENCE OF
INTRASTATE PRICES SUBMITTED BY THE PRODUCERS ON THE GROUND THAT" 

"THESE PRICES DO NOT COVER THE ENTIRE AREA NOR IS THERE ANYTHING TO
SHOW THAT THEY ARE REPRESENTATIVE SO AS TO MAKE THEM COMPARABLE TO THE
INTERSTATE ARRAYS."  34 F.P.C.,AT 904.  FINALLY, SUPERIOR ASSERTS THAT
THE COMMISSION ACTED INCORRECTED IN RELYING ON ESTIMATED RATHER THAN
ACTUAL VOLUMES OF GAS SOLD DURING BOTH PERIODS.  WE FIND ACCEPTABLE THE
COMMISSION'S JUSTIFICATION, WHICH WAS THAT ACTUAL VOLUMES WERE NOT
KNOWN FOR THE YEARS 1962 AND 1963.  MOREOVER, USE OF ACTUAL VOLUMES
WOULD HAVE MADE NO SIGNIFICANT DIFFERENCE, SINCE SUPERIOR AGREES /20/
THAT THE ONLY RESULT WOULD HAVE BEEN TO GIVE ENHANCED FORCE TO THE 20[
SALES, WHICH PROPERLY WERE GIVEN ONLY SLIGHT WEIGHT.  /21/

        B. 

WE NOW TURN TO THE QUESTION WHETHER THE PRICE LEVELS ESTABLISHED BY
THE COMMISSION IN THESE PROCEEDINGS WERE PROPER WHEN REGARDED AS REFUND
FLOORS.  THIS COURT STATED IN CATCO THAT THE NATURAL GAS ACT "WAS SO
FRAMED AS TO AFFORD CONSUMERS A COMPLETE, PERMANENT AND EFFECTIVE BOND
OF PROTECTION FROM EXCESSIVE RATES AND CHARGES."  360 U.S.,AT 388. 
SINCE THE NATURAL GAS ACT NOWHERE REFERS TO "IN-LINE" PRICES, THE
"EXCESSIVE RATES" REFERRED TO MUST BE RATES IN EXCESS OF THE JUST AND
REASONABLE RATE AT WHICH SEC. 4(A) COMMANDS THAT ALL GAS MUST MOVE. 
LOGICALLY, THIS WOULD SEEM TO IMPLY THAT TO ASSURE THE "COMPLETE,
PERMANENT AND EFFECTIVE BOND OF PROTECTION" REFERRED TO, ANY RATE
PERMITTED TO BE CHARGED DURING THE INTERIM PERIOD BEFORE A JUST AND
REASONABLE RATE CAN BE DETERMINED MUST BE ACCOMPANIED BY A CONDITION
RENDERING THE PRODUCER LIABLE FOR REFUNDS DOWN TO THE JUST AND
REASONABLE RATE, SHOULD THAT RATE PROVE LOWER THAN THE INITIAL RATE
SPECIFIED IN THE CERTIFICATE. 

DESPITE THIS APPARENT LOGIC, THE COMMISSION SEEMS NEVER TO HAVE
IMPOSED A REFUND CONDITION OF THIS TYPE, THOUGH IT HAS OCCASIONALLY
CONSIDERED THE FUNCTION OF AN IN-LINE PRICE AS A REFUND FLOOR IN
DETERMINING THE LEVEL OF THE PRICE.  /22/  THE COURTS SEEM NEVER TO
HAVE SUGGESTED THAT THE COMMISSION IMPOSE SUCH CONDITIONS.  IN CALLERY,
SUPRA, THIS COURT WITHOUT DISSENT APPROVED THE COMMISSION'S IMPOSITION
OF AN INITIAL PRICE UNACCOMPANIED BY ANY SUCH REFUND CONDITION.  THE
CALLERY COURT ALSO HELD, OVER A SINGLE DISSENT, THAT IN COMPELLING
PRODUCERS TO REFUND EXCESS AMOUNTS CHARGED UNDER PERMANENT CERTIFICATES
LATER INVALIDATED ON JUDICIAL REVIEW. 

"THE COMMISSION COULD PROPERLY MEASURE THE REFUND BY THE DIFFERENCE
BETWEEN THE RATES CHARGED AND THE 'IN-LINE' RATES TO WHICH THE ORIGINAL
CERTIFICATES SHOULD HAVE BEEN CONDITIONED.  THE COURT OF APPEALS WOULD
DELAY THE PAYMENT OF THE REFUND UNTIL THE 'JUST AND REASONABLE' RATE
COULD BE DETERMINED.  WE HAVE SAID ELSEWHERE THAT IT IS THE DUTY OF THE
COMMISSION, 'WHERE REFUNDS ARE FOUND DUE, TO DIRECT THEIR PAYMENT AT
THE EARLIEST POSSIBLE MOMENT CONSISTENT WITH DUE PROCESS.'  FEDERAL
POWER COMM'N V. TENNESSEE GAS TRANSMISSION CO., 371 U.S. 145, 155." 
382 U.S.,AT 230.  IN VIEW OF THE FACT THAT AN INITIAL PRICE AND A
REFUND FLOOR MIGHT BE USED TO ACHIEVE DISTINCT REGULATORY GOALS, SEE
SUPRA, N. 11, IT SEEMS REGRETTABLE THAT THE COMMISSION AND COURTS
APPARENTLY HAVE NEVER ENTERTAINED THE POSSIBILITY OF SEPARATING THESE
TWO ASPECTS OF AN "IN-LINE PRICE" IN PARTICULAR CASES.  HOWEVER, WE
THINK THAT IN LIGHT OF CALLERY AND THE OTHER PRECEDENTS THE COMMISSION
WAS NOT OBLIGED IN THIS INSTANCE TO GIVE EXPLICIT CONSIDERATION TO THE
ESTABLISHMENT OF A DISTINCT REFUND FLOOR.  THE SAME FACTORS ARE PRESENT
HERE AS IN CALLERY.  THE NEED TO SPEED REFUNDS TO CONSUMERS AND TO
ASSURE PRODUCERS OF A FIRM PRICE ARE IDENTICAL.  WE CANNOT SAY,
THEREFORE, THAT THE COMMISSION BREACHED ANY DUTY IN FAILING EXPRESSLY
TO CONSIDER WHETHER THE PRICES IT FIXED WERE SUITABLE WHEN REGARDED AS
REFUND FLOORS. 

ALTHOUGH WE HAVE APPROVED THE IN-LINE PRICES IN THESE CASES WHEN
LOOKED AT AS INITIAL PRICES, WE HAVE YET TO EXAMINE THEM IN THEIR ROLE
AS REFUND FLOORS.  VIEWING THEM IN THAT WAY, WE HOLD THAT THEY WERE NOT
IMPERMISSIBLY HIGH.  IN THE DISTRICT 4 OR AMERADA PROCEEDING, THE ONLY
DISPUTED PRICE IS THE 16[ PRICE FOR THE POST-POLICY STATEMENT PERIOD. 
THE COMMISSION FIXED THAT PRICE AT A POINT NEAR THE LOWER END OF THE
PRICE RANGE SUGGESTED BY THE PRICE EVIDENCE BEFORE IT, STATING: 

"WHILE THERE IS EVIDENCE THAT POINTS IN THE DIRECTION OF A HIGHER
PRICE WE BELIEVE THE TEACHINGS OF CATCO REQUIRE THAT WE DRAW THE LINE
AT THE LOWEST REASONABLE LEVEL."  31 F.P.C.,AT 637.  WE CONSIDER THAT
THE 16[ PRICE WAS NOT BEYOND THE COMMISSION'S POWER, WHEN REGARDED AS A
REFUND FLOOR. 

IN THE DISTRICT 2 OR SINCLAIR PROCEEDING, THE ONLY PRICE ASSAILED AS
TOO HIGH IS THE 16[ PRICE FOR THE POST-POLICY STATEMENT PERIOD.  THAT
PRICE WAS NEARER THE HIGH END OF THE SPECTRUM OF SUGGESTED PRICES THAN
WAS THE PRICE ESTABLISHED IN DISTRICT 4.  THE COMMISSION DID NOT
ENUNCIATE THE GENERAL PRINCIPLE WHICH MOTIVATED IT IN SELECTING THE 16[
PRICE LEVEL.  /23/  ALTHOUGH IT WOULD HAVE BEEN PREFERABLE FOR THE
COMMISSION TO HAVE EXPLAINED ITS REASONING, WE BELIEVE THAT THE PRICE
WAS PERMISSIBLE WHEN REGARDED AS A REFUND FLOOR.  THE 16[ PRICE
EMBODIED AN INCREASE OF ONLY 1[ PER MCF OVER THE PREVIOUSLY PREVAILING
PRICE.  SUCH EVIDENCE AS IS NOW AVAILABLE INDICATES THAT THE 16[ PRICE
PROBABLY WILL NOT EXCEED THE JUST AND REASONABLE PRICE WHICH WILL BE
ESTABLISHED FOR THE TEXAS GULF COAST IN A PENDING AREA RATE
PROCEEDING.  /24/ IN ADDITION, WE ARE NOT UNMOVED BY THE OBVIOUS
DESIRABILITY OF BRINGING TO A CLOSE THIS ALREADY PROLONGED PROCEEDING,
WHICH BELONGS TO AN ERA OF REGULATION APPARENTLY NOW ENDED.  /25/  WE
THEREFORE HOLD THAT, DESPITE THE WEAKNESSES IN THE COMMISSION'S
OPINION, THE PRICE ESTABLISHED WAS WITHIN THE COMMISSION'S AUTHORITY
WHEN SEEN AS A REFUND FLOOR. 

IN THE DISRICT 3 OR HAWKINS CASE, THE ONLY PRICE CHALLENGED AS
EXCESSIVE IS THE 17[ PRICE FOR THE POST-POLICY STATEMENT PERIOD.  THE
DISTRICT 3 PROCEEDING WAS SIMILAR TO THAT IN DISTRICT 2 (SINCLAIR). 
THE PRICE DECIDED UPON WAS AGAIN NEARER THE HIGH END OF THE SUGGESTED
RANGE WAS AGAIN NEARER THE HIGH END OF THE SUGGESTED RANGE THAN THAT IN
DISTRICT 4; AGAIN THE COMMISSION DID NOT ARTICULATE THE GENERAL
PRINCIPLES WHICH MOTIVATED IT.  /26/  THE DISTRICT 3 PRICE IS EVEN MORE
VULNERABLE TO ATTACH THAN THAT IN DISTRICT 2, BECAUSE IT IS 1[ HIGHER
AND THEREFORE MORE LIKELY TO BE ABOVE THE JUST AND REASONABLE RATE FOR
THE TEXAS GULF COAST.  YET SIMILAR CONSIDERATIONS LEAD US TO APPROVE IT
AS BEING WITHIN THE COMMISSION'S BROAD DISCRETION.  THE 17[ PRICE
REPRESENTED ONLY A 1[ INCREASE OVER THE PREVIOUS DISTRICT 3 PRICE.  THE
FRAGMENTARY EVIDENCE NOW AVAILABLE ABOUT THE FORTHCOMING JUST AND
REASONABLE RATE INDICATES THAT IT WILL BE ONLY SLIGHTLY, IF AT ALL,
BELOW 17[.  /27/  IT IS AGAIN DESIRABLE THAT A PROLONGED AND OUTMODED
PROCEEDING BE BROUGHT FINALLY TO A CLOSE.  HENCE, WE ARE CONSTRAINED TO
HOLD THAT THE 17[ DISTRICT 3 PRICE WAS NOT EXCESSIVE AS A MATTER OF
LAW, WHEN LOOKED AT AS A REFUND FLOOR.              II. 

THE NEXT MAJOR ISSUE IS WHETHER THE COMMISSION ACTED WITHIN ITS
POWERS WHEN IT ORDERED THE PRODUCERS IN THE DISTRICT 4 OR AMERADA
PROCEEDING TO REFUND AMOUNTS PREVIOUSLY COLLECTED UNDER UNCONDITIONED
TEMPORARY CERTIFICATES, TO THE EXTENT THAT THE PRICES CHARGED UNDER
THOSE CERTIFICATES EXCEEDED THE EVENTUAL IN-LINE PRICE. 

        A. 

PROVISO WHICH PERMITS THE COMMISSION TO "ISSUE A TEMPORARY CERTIFICATE
IN CASES OF EMERGENCY, TO ASSURE MAINTENANCE OF ADEQUATE SERVICE OR TO
SERVE PARTICULAR CUSTOMERS, WITHOUT NOTICE OR HEARING, PENDING THE
DETERMINATION OF AN APPLICATION FOR A CERTIFICATE."  MOST OF THE
PRODUCERS INVOLVED IN THE AMERADA PROCEEDING APPLIED FOR AND WERE
GRANTED SUCH TEMPORARY CERTIFICATES, AUTHORIZING THEM TO SELL GAS AT OR
BELOW THE THEN-GUIDELINE PRICE OF 18[ PER MCF.  THE "EMERGENCY" WHICH
MOST OF THESE PRODUCERS CITED TO JUSTIFY THE ISSUANCE OF THE
CERTIFICATES WAS AN ECONOMIC EMERGENCY WHICH THREATENED THEM WITH LOSS
OF ALL OR PART OF THEIR GAS SUPPLY UNLESS DELIVERIES COULD BEGIN.  /28/
EIGHT OF THE CERTIFICATES CONTAINED A CONDITION SPECIFYING THAT SHOULD
THE EVENTUAL IN-LINE PRICE BE LOWER THAN THAT CHARGED UNDER THE
CERTIFICATE, A REFUND OF THE DIFFERENCE MIGHT BE ORDERED.  THE OTHER,
ALTHOUGH THEY DID CONTAIN GENERAL CAUTIONARY LANGUAGE RESPECTING
FURTHER COMMISSION ACTION.  /29/ 

THE HISTORY OF THE REFUND ORDERS NOW UNDER REVIEW IS AS FOLLOWS. 
WHEN SEABOARD INTERESTS PROPOSED THE RETROACTIVE IMPOSITION OF REFUNDS
IN VIRTUALLY IDENTICAL CIRCUMSTANCES IN THE 1962 SKELLY OIL COMPANY
PROCEEDING, THE COMMISSION DECIDED NOT TO ORDER REFUNDS BECAUSE "THE
PRODUCERS HERE HAVE BEEN OPERATING . . . PURSUANT TO EFFECTIVE
TEMPORARY CERTIFICATES CONTAINING NO PRICE CONDITION, THE VALIDITY OF
WHICH (HAS) NEVER BEEN CHALLENGED ON APPEAL."  28 F.P.C. 401, 413.  IN
DENYING REHEARING IN SKELLY, THE COMMISSION AMPLIFIED ITS REASONS,
STATING THAT BECAUSE THERE WAS IN THE TEMPORARY CERTIFICATES NO
EXPLICIT LANGUAGE TO WARN THE PRODUCERS OF THE POSSIBILITY OF A REFUND,
"TO PROCEED NOW AND ORDER THE PRODUCERS TO MAKE REFUNDS WOULD NOT BE
EQUITABLE REGARDLESS OF ANY ULTIMATE RIGHT WE MAY HAVE TO ORDER SUCH
REFUNDS."  28 F.P.C. 1065, 1069.  WHILE SKELLY WAS PENDING ON APPEAL IN
THE DISTRICT OF COLUMBIA CIRCUIT, THE SEABOARD INTERESTS MOVED THE
COMMISSION TO INSERT PROSPECTIVE REFUND CONDITIONS IN THE TEMPORARY
CERTIFICATES OF PRODUCERS IN THE AMERADA PROCEEDING NOW BEFORE US.  IN
DENYING THAT REQUEST, THE COMMISSION STATED THAT, BECAUSE THE PRODUCERS
HAD RELIED ON THE ABSENCE OF REFUND CONDITIONS WHEN THEY DEDICATED
THEIR GAS TO INTERSTATE COMMERCE, TO IMPOSE PROSPECTIVE REFUND
CONDITIONS WOULD "SO DENATURE THE VALUE OF A COMMISSION AUTHORIZATION
AS TO PLACE ANY RELIANCE UPON OUR ACTIONS IN THIS AREA IN SERIOUS
JEOPARDY."  29 F.P.C.,AT 225. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT HELD ON
APPEAL IN SKELLY, 117 U.S.APP.D.C. 287, 32 F.2D 242, NOT ONLY THAT THE
COMMISSION HAD POWER TO ORDER RETROACTIVE REFUNDS BUT THAT IN THE
SKELLY PROCEEDING ITSLEF IT SHOULD SUBJECT THE QUESTION TO "A BROADER
AND MORE PENETRATING ANALYSIS."  117 U.S.APP.D.C.,AT 295, 329 F.2D,AT
250.  IN ITS SUBSEQUENT IN-LINE PRICE DECISION IN AMERADA, THE
COMMISSION NOTED THAT IN SKELLY THE COURT OF APPEALS HAD MADE IT CLEAR
THAT THE REFUND POWER DID NOT DEPEND UPON THE PRESENCE OF EXPRESS
REFUND CONDITIONS BUT UPON EQUITABLE CONSIDERATIONS.  SINCE THE
HERAINGS BEFORE THE COMMISSION IN AMERADA HAD TAKEN PLACE PRIOR TO THE
DECISION ON APPEAL IN SKELLY, THE COMMISSION DEFERRED DECISION OF THE
REFUND QUESTION IN AMERADA, SO THAT THE PARTIES MIGHT SUBMIT FURTHER
BRIEFS.  SEE 31 F.P.C.,AT 638-639.  AFTER FULL BRIEFING OF THE REFUND
ISSUE, THE COMMISSION ORDERED THE AMERADA PRODUCERS TO REFUND ALL SUMS
COLLECTED UNDER THE TEMPORARY CERTIFICATES IN EXCESS OF THE IN-LINE
RATE, WITH THE EXCEPTION OF AMOUNTS EXPENDED FOR ROYALTIES AND
PRODUCTION TAXES PRIOR TO THE DATE OF THE DECISION ON APPEAL IN SKELLY
AND IN REASONABLE RELIANCE UPON THE COMMISSION'S ORDERS.  36 F.P.C.
309. 

ON APPEAL OF THE COMMISSION'S AMERADA ORDER SETTING THE IN-LINE
PRICE AND DEFERRING THE REFUND QUESTION, THE COURT OF APPEALS FOR THE
TENTH CIRCUIT NOTED THE ISSUANCE OF THE SUBSEQUENT COMMISSION ORDER
COMPELLING REFUNDS AND HELD THAT THE REFUND ISSUE WAS RIPE FOR JUDICIAL
REVIEW.  RELYING IN PART UPON ITS EARLIER DECISION IN SUNRAY MID
CONTINENT OIL CO. V. FPC, 270 F.2D 404, THE TENTH CIRCUIT HELD THAT THE
COMMISSION LACKED POWER TO ORDER REFUNDS OF AMOUNTS COLLECTED UNDER
UNCONDITIONED TEMPORARY CERTIFICATES.  370 F.2D 181.  IT REASONED THAT
TO PERMIT SUCH REFUNDS WOULD UNDERMINE PRODUCER CONFIDENCE AND DESTROY
STABILITY.  WHEN THE COMMISSION'S REFUND ORDERS WERE THEMSELVES
APPEALED, THE TENTH CIRCUIT REAFFIRMED ITS POSITION IN A PER CURIAM
OPINION.  376 F.2D 578. 

        B. 

WE CONSIDER THAT IN SO HOLDING THE TENTH CIRCUIT ERRED.  THE
PRODUCERS' INITIAL CONTENTION IN SUPPORT OF THE OPINION BELOW IS THAT
TEMPORARY CERTIFICATES ARE APPEALABLE ORDERS, AND THAT UNDER SEC. 19(B)
OF THE NATURAL GAS ACT, 15 U.S.C. 717RB), REVIEW MUST BE SOUGHT WITHIN
60 DAYS OF THE ISSUANCE OF THE CERTIFICATE AND NOT, AS HERE, AT THE
TIME OF APPLICATION FOR A PERMANENT CERTIFICATE.  WE FIND THIS ARGUMENT
UNPERSUASIVE.  TEMPORARY CERTIFICATES NORMALLY ARE ISSUED EX PARTE,
UPON RECEIPT OF AN APPLICATION FROM A PRODUCER IN THE FORM OF A
LETTER.  /30/  THIS PROCEDURE IS AUTHORIZED BY A PROVISO TO SEC. 7(C)
OF THE ACT, QUOTED SUPRA, AT 40, WHICH PERMITS THE COMMISSION TO ISSUE
TEMPORARY CERTIFICATES WITHOUT ANY NOTICE TO POTENTIALLY INTERESTS
PERSONS.  /31/  HENCE, NO ONE BUT THE PRODUCER RECIPIENT MAY BE AWARE
OF THE ISSUANCE OF A TEMPORARY CERTIFICATE WITHIN THE APPEAL PERIOD. 

MOREOVER, TO HOLD THAT A TEMPORARY CERTIFICATE MUST BE CHALLENGED
IMMEDIATELY OR NOT AT ALL, AS THE PRODUCERS SUGGEST, MIGHT ENCOURAGE
APPEALS WHICH WOULD IMPAIR THE USEFULNESS OF TEMPORARY CERTIFICATES. 
TEMPORARY CERTIFICATES ARE INTENDED TO PERMIT IMMEDIATE DELIVERY OF GAS
IN EMERGENCIES.  TO DELAY THE ISSUANCE OF THE CERTIFICATE AND THE FLOW
OF THE GAS UNTIL THE COMPLETION OF JUDICIAL REVIEW WHICH MIGHT CONSUME
MONTHS OR YEARS WOULD SEVERELY HAMPER THE PERFORMANCE OF THIS
FUNCTION.  WE THEREFORE HOLD THAT PARTIES, AT LEAST THOSE OTHER THAN
THE PRODUCER ITSELF, /32/  MAY CHALLENGE A TEMPORARY CERTIFICATE AT THE
TIME A PERMANENT CERTIFICATE IS APPLIED FOR. 

THE PRODUCERS' SECOND ARGUMENT IS THAT A TEMPORARY CERTIFICATE IS A
"FINAL" ORDER CREATING VESTED RIGHTS, AND THAT IT MAY BE ALTERED ONLY
PROSPECTIVELY.  THIS CONTENTION IS RELATED TO THE LAST, AND HAS MUCH
THE SAME FLAW.  TO ENCOURAGE EARLY ATTACK ON TEMPORARY CERTIFICATES
WOULD DIMINISH THEIR UTILITY.  YET TO DISCOURAGE PROMPT CHALLENGES AND
SIMULTANEOUSLY TO HOLD THAT REFUNDS COULD NOT BE ORDERED FOR THE
INTERIM PERIOD WOULD IN LARGE PART FRUSTRATE THE OBJECTIVES OF THE
NATURAL GAS ACT BY ALLOWING PRODUCERS TO OPERATE FOR LONG INTERVALS
/33/  ON THE BASIS OF THEIR OWN REPRESENTATIONS AND WITH ONLY MINIMAL
REGULATION BY THE COMMISSION. 

THE PRODUCERS' THIRD CONTENTION, WHICH COINCIDES WITH THE RATIONALE
OF THE TENTH CIRCUIT BELOW AND IN ITS PREVIOUS DECISION IN SUNRAY MID
CONTINENT, SUPRA, IS THAT TEMPORARY CERTIFICATE MUST BE RETROACTIVELY
UNMODIFIABLE IN ORDER THAT PRODUCERS MAY BE ASSURED OF A FIRM PRICE AT
WHICH TO OPERATE.  WE CANNOT ACCEPT THIS REASONING.  WHEN A PRODUCER
HAS REQUESTED PERMISSION TO BEGIN DELIVERY OF GAS PRIOR TO COMPLETION
OF NORMAL CERTIFICATION PROCEDURES, DUE TO AN EMERGENCY, WE THINK IT
NOT UNFAIR THAT IN RETURN FOR THAT PERMISSION IT ACCEPT THE RISK THAT
AT THE TERMINATION OF THOSE PROCEDURES THE TERMS PROPOSED BY IT MAY BE
RETROSPECTIVELY ALTERED TO CONFORM TO THE PUBLIC INTEREST. 

WE ARE STRENGTHENED IN THAT VIEW BY THIS COURT'S DECISION IN
CALLERY, SUPRA.  THE COURT THERE HELD THAT WHEN A PERMANENT
CERTIFICATE, CONTAINING NO REFUND CONDITION, IS HELD ON JUDICIAL REVIEW
TO HAVE EMBODIED TOO HIGH AN IN-LINE PRICE, THE COMMISSION MAY ON
REMAND CONDITION THE NEW PERMANENT CERTIFICATE TO REQUIRE REFUND OF THE
EXCESSIVE CHARGES RECEIVED UNDER THE OLD.  IF THE PRODUCER EXPECTATIONS
CREATED BY A PERMANENT CERTIFICATE MAY THUS BE OVERRIDDEN BY THE PUBLIC
INTEREST, THEN THE SURELY LESSER RELIANCE INDUCED BY AN "UNCONDITIONED"
TEMPORARY CERTIFICATE ISSUED ON THE PRODUCER'S OWN REPRESENTATIONS
SHOULD NOT BAR A LATER REFUND REQUIREMENT.  FOR ALL OF THESE REASONS,
WE HOLD THAT IN THE EXERCISE OF ITS POWER TO CONDITION PERMANENT
CERTIFICATES UNDER SEC. 7(E), THE COMMISSION MAY REQUIRE PRODUCERS TO
REFUND AMOUNTS COLLECTED UNDER OUTSTANDING, UNCONDITIONED TEMPORARY
CERTIFICATES IN EXCESS OF THE FINALLY ESTABLISHED IN-LINE PRICE.  /34/

C. 

IT REMAINS TO BE CONSIDERED WHETHER THE COMMISSION WAS PRECLUDED
FROM EXERCISING ITS REFUND POWER IN THE PARTICULAR CIRCUMSTANCES OF THE
AMERADA PROCEEDING.  /35/  THE BACKGROUND AND NATURE OF THE AMERADA
REFUND ORDERS HAVE ALREADY BEEN DESCRIBED.  WE CONDLUDE THAT NEITHER
THE PROCEDURE FOLLOWED NOR THE RESULT REACHED BY THE COMMISSION IN
IMPOSING THE AMERADA REFUNDS AMOUNTED TO AN ABUSE OF DISCRETION. 

THE PRODUCERS ASSERT THAT THEY WERE ENTITLED TO AN IRREVOCABLE
ASSURANCE OF PRICE IN ORDER THAT THEY MIGHT RATIONALLY DECIDE WHETHER
TO DEDICATE THEIR GAS TO INTERSTATE COMMERCE, AND SO THAT THEY MIGHT
PLAN THEIR BUDGETS DURING THE LIVES OF THE TEMPORARY CERTIFICATES. 
HOWEVER, WE BELIEVE THAT SUCH GENERALLY WORDED ARGUMENTS ARE FORECLOSED
BY OUR DECISION UPHOLDING THE COMMISSION'S REFUND POWER, FOR IN THE
COURSE OF THAT DECISION WWE REJECTED THE PRODUCERS' CLAIM THAT THEY
WERE LEGALLY ENTITLED TO AN ASSURANCE OF A FIRM PRICE AT WHICH TO
OPERATE.  SEE SUPRA, AT 44-45. 

THE PRODUCERS FURTHER CONTEND THAT THE COMMISSION'S REPEATED
INDICATIONS THAT IT WOULD NOT ORDER REFUNDS, SEE SUPRA, AT 41-42, MADE
THE ORDERING OF REFUNDS INEQUITABLE IN THIS INSTANCE, IN THAT THE
COMMISSION'S PRONOUNCEMENTS CAUSED THE PRODUCERS TO PLACE UNUSUAL
RELIANCE UPON THE PRICES AUTHORIZED BY THE TEMPORARY CERTIFICATES. 
HOWEVER, THIS KIND OF RELIANCE IS PRECISELY WHAT THE COMMISSION GAVE
THE PRODUCERS AN OPPORTUNITY TO PROVE ON RE-BRIEFING.  WE CANNOT SAY
THAT THE COMMISSION EXCEEDED ITS DISCRETION IN FINDING THAT THE
PRODUCERS DID NOT SHOW SUCH RELIANCE AS TO DEPRIVE THE COMMISSION
ENTIRELY OF REFUND POWER IN THIS CASE.  WE NOTE FURTHER THAT THE
COMMISSION DID GIVE CONSIDERATION TO INDIVIDUAL PLEAS FOR RELIEF FROM
THE REFUND OBLIGATION, DUE TO ALLEGED HARDSHIP, /36/  AND THAT IN ORDER
PROCEEDINGS THE COMMISSION HAS GRANTED SUCH RELIEF.  /37/  THEREFORE,
ALTHOUGH IT IS REGRETTABLE THAT THE ROAD WHICH LEAD TO THESE REFUND
REQUIREMENTS COULD NOT HAVE BEEN STRAIGHTER, /38/  WE HOLD THAT THE
COMMISSION DID NOT EXCEED ITS AUTHORITY. 

        III. 

THE THIRD AND LAST MAJOR ISSUE IS WHETHER THE COMMISSION ERRED IN
FAILING TO MAKE A REASONED FINDING THAT THERE WAS A PUBLIC NEED FOR THE
GAS CERTIFICATED IN THE DISTRICT 2 AND DISTRICT 3 (SINCLAIR AND
HAWKINS) PROCEEDINGS.  IN THOSE PROCEEDINGS, THE NEW YORK PUBLIC
SERVICE COMMISSION ASSERTED THAT THERE WAS NO PUBLIC NEED FOR THE GAS,
ALLEGING IN PARTICULAR THAT SEVERAL OF THE PURCHASING PIPELINES WERE
ALREADY OBLIGATED UNDER "TAKE-OR-PAY" PROVISIONS OF EXISTING CONTRACTS
EITHER TO TAKE MORE GAS THAN THEY COULD FORESEEABLY USE OR TO PAY FOR
IT.  /39/ 

IN BOTH PROCEEDINGS, THE COMMISSION REFUSED TO GIVE MORE THAN
PERFUNCTORY CONSIDERATION TO THE ISSUE OF "NEED."  ITS STATED
JUSTIFICATION WAS THAT THE NEED QUESTION SHOULD BE DEALT WITH IN
PIPELINE RATHER THAN PRODUCER PROCEEDINGS.  THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT HELD THAT THE COMMISSION ERRED IN
DECLINING TO COME TO GRIPS WITH THE NEED ISSUE IN THE COURSE OF
PRODUCER CERTIFICATION.  126 U.S.APP.D.C. 26, 373 F.2D 816.  THAT COURT
HELD THAT THE COMMISSION SHOULD HAVE DIRECTED ITSELF NOT ONLY TO THE
TAKE-OR-PAY POSITIONS OF THE PURCHASING PIPELINES BUT TO THE QUESTION
WHETHER THOSE PIPELINES PROPOSED TO SELL THE GAS TO CUSTOMERS WHO WOULD
USE IT IN AN "ECONOMICALLY 'INFERIOR' WAY." 

THE COMMISSION REGULATES PIPELINES IN A NUMBER OF DIFFERENT WAYS. 
WHEN A PIPELINE MUST EXPAND ITS FACILITIES SIGNIFICANTLY IN ORDER TO
TAKE ON NEW SUPPLIES OF GAS, IT IS REQUIRED BY SEC. 7(C) OF THE NATURAL
GAS ACT, 15 U.S.C. 717FC), TO OBTAIN A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY, WHICH MAY BE ISSUED ONLY AFTER NOTICE AND
HEARING.  IN THESE CERTIFICATION PROCEEDINGS, THE COMMISSION CONSIDERS
MANY MATTERS, INCLUDING THE NEEDS OF THE PIPELINE'S CUSTOMERS AND ITS
GAS SUPPLY.  /40/  THE COMMISSION ALSO GRANTS PIPELINES SO-CALLED
"BUDGET" AUTHORITY TO SPEND LIMITED AMOUNTS ON GAS-PURCHASING
FACILITIES ON AN ANNUAL BASIS, WITHOUT FURTHER COMMISSION APPROVAL. 
/41/  THIS AUTHORITY IS GRANTED ONLY AFTER NOTICE AND OPPORTUNITY FOR
OBJECTION.  /42/  IN ADDITION, THE COMMISSION REQUIRES PERIODIC REPORTS
FROM ALL PIPELINES, /43/  AND COLLECTS AND PUBLISHES MATERIAL ON THE
SUPPLY OF GAS, INCLUDING DATA ON THE PIPELINES' TAKE-OR-PAY POSITIONS. 
/44/     WE THINK THAT THE COMMISSION DID NOT ABUSE ITS DISCRETION IN
DECIDING THAT THE NEED ISSUE, IN BOTH ITS TAKE-OR-PAY AND END-USE /45/
ASPECTS, CAN BE BETTER DEALT WITH IN SUCH PIPELINE PROCEEDINGS THAN IN
PRODUCER PROCEEDINGS.  TO RESOLVE THE TAKE-OR-PAY ISSUE, IT IS
NECESSARY TO HAVE INFORMATION ABOUT THE TOTAL GAS SUPPLY OF THE
PURCHASING PIPELINE, ITS OUTSTANDING SALES CONTRACTS, AND ITS TAKE-OR
PAY SITUATION UNDER THOSE CONTRACTS.  THESE DATA NORMALLY WILL BE IN
THE POSSESSION OF THE PIPELINE, BUT NOT OF THE PRODUCER.  DECISION OF
THE END-USE QUESTION MUST BE BASED ON INFORMATION NOT ONLY ABOUT THE
CUSTOMERS OF THE PURCHASING PIPELINE BUT ABOUT THE ALTERNATIVE USES TO
WHICH THE GAS MIGHT BE PUT BY OTHER PIPELINES WHICH MIGHT BUY IT.  THIS
INFORMATION WILL BE KNOWN COLLECTIVELY BY A NUMBER OF PIPELINES; AN
INDIVIDUAL PRODUCER CANNOT EVEN KNOW WHAT CUSTOMER OF THE PURCHASING
PIPELINE WILL RECEIVE THE GAS IT SUPPLIES.  /46/  ALTHOUGH IT MIGHT BE
POSSIBLE FOR THE COMMISSION TO REQUIRE THE RELEVANT PIPELINE OR
PIPELINES TO FURNISH ALL THIS INFORMATION IN EACH PRODUCER
CERTIFICATION PROCEEDING, /47/  THAT PROCEDURE WOULD BE CUMBERSOME AND
WOULD LENGTHEN THE PRODUCER PROCEEDINGS, WHICH WE HAVE PREVIOUSLY
COMMENDED THE COMMISSION FOR ENDEAVORING TO SHORTEN.  /48/ 

IN THE SECOND PLACE, THERE IS REASON TO BELIEVE THAT THE PIPELINE
PROCEEDINGS, SUPPLEMENTED BY OTHER FORMS OF REGULATION AVAILABLE TO THE
COMMISSION, WILL PROVIDE AN ADEQUATE FORUM IN WHICH TO CONFRONT BOTH
ASPECTS OF THE NEED ISSUE.  TURNING FIRST TO THE TAKE-OR-PAY QUESTION,
WE NOTE THAT THE COMMISSION HAS EVINCED A CONTINUING CONCERN ABOUT IT.
THE CURRENT ADVERSE TAKE-OR-PAY POSITIONS OF SOME PIPELINES, STRESSED
BY THE SEABOARD INTERESTS IN THESE PROCEEDINGS, APPARENTLY WERE DUE IN
SOME PART TO A PRE-1964 COMMISSION REQUIREMENT THAT EACH PIPELINE
MAINTAIN A TWELVE-YEAR SUPPLY OF GAS, IN ORDER TO ASSURE ADEQUATE
RESERVES.  IN 1964 THIS REQUIREMENT WAS MADE MORE FLEXIBLE.  /49/  THE
COMMISSION IN 1965 ORDERED PIPELINES TO SUBMIT MORE DETAILED REPORTS ON
THEIR CONTRACTUAL TAKE-OR-PAY PROVISIONS.  /50/  AND IN 1967, AT THE
TERMINATION OF A RULE-MAKING PROCEEDING BEGUN IN 1961, THE COMMISSION
PRESCRIBED BY RULE THAT CONTRACTUAL TAKE-OR-PAY PROVISIONS MUST ALLOW
THE PURCHASING PIPELINE AT LEAVE FIVE YEARS IN WHICH TO TAKE GAS
PREVIOUSLY PAID FOR WITHOUT MAKING ADDITIONAL PAYMENTS.  /51/ 

THUS, THE COMMISSION ITSELF HAS TAKEN STEPS TO ALLEVIATE TAKE-OR-PAY
PROBLEMS.  PERSONS WHO WANT THE COMMISSION TO TAKE ADDITIONAL ACTION
HAVE ADEQUATE OPPORTUNITY TO PRESENT THEIR VIEWS DURING THE
COMMISSION'S RULE-MAKING /52/  OR PIPELINE PROCEEDINGS.  IF A PIPELINE
MUST BUILD SUBSTANTIAL NEW FACILITIES TO HANDLE THE GAS IN QUESTION,
THEN INTERESTED PERSONS MAY EXPRESS THEIR OBJECTIONS IN THE
CERTIFICATION PROCEEDING.  /53/  THOSE WHO BELIEVE THAT A PIPELINE
WHICH SEEKS "BUDGET" AUTHORITY IS IN SUCH A TAKE-OR-PAY POSITION THAT
IT SHOULD NOT BE ALLOWED TO ACQUIRE NEW GAS MAY ASK THAT THE AUTHORITY
BE DENIED OR CONDITIONED.  ALTHOUGH SOME GAS MAY BE TAKEN BY PIPELINES
THROUGH EXISTING FACILITIES, WITHOUT EVEN "BUDGET" AUTHORITY, /54/
THESE OPPORTUNITIES FOR A HEARING SEEM SUFFICIENT TO PROTECT THE PUBLIC
INTEREST. 

THE COMMISSION HAS UNDERTAKEN TO ASSURE THAT GAS IS NOT DEVOTED TO
WASTEFUL END USES, AND THIS COURT HAS UPHELD ITS EXERCISE OF SUCH
AUTHORITY.  SEE FPC V. TRANSCONTINENTAL GAS PIPE LINE CORP., 365 U.S.
1.  THE COMMISSION HAS DEALT WITH THIS QUESTION PRIMARILY IN PIPELINE
CERTIFICATION PROCEEDINGS.  /55/  THIS DOES NOT SEEM INAPPROPRIATE,
SINCE ANY NEW USE OF SIGNIFICANT AMOUNTS OF GAS WILL NORMALLY ENTAIL
THE ERECTION OF SUBSTANTIAL NEW PIPELINE FACILITIES, REQUIRING
CERTIFICATION.  PERSONS WHO ANTICIPATE THAT A PIPELINE WHICH IS SEEKING
"BUDGET" AUTHORITY WILL DEVOTE THE GAS TO INFERIOR END USES MAY REQUEST
THAT THE AUTHORITY BE WITHHELD OR LIMITED.  WE BELIEVE THAT THESE
OPPORTUNITIES FOR OBJECTION ARE ADEQUATE TO PROTECT THE PUBLIC INTEREST
IN CONSERVATION OF GAS. 

OF COURSE, OUR APPROVAL OF THE COMMISSION'S DECISION TO DEAL WITH
THE NEED QUESTION IN PIPELINE PROCEEDINGS DOES NOT IMPLY THAT THE
COMMISSION MAY NEGLECT ITS STATUTORY DUTY TO ASSURE THAT SALES OF GAS
ARE REQUIRED BY THE PUBLIC "NECESSITY."  /56/  THIS STATUTORY
OBLIGATION IMPLIES THAT WHEN INTERESTED PARTIES ASSERT THAT THE
COMMISSION HAS PERMITTED OR IS ABOUT TO PERMIT THE SALE OF SIGNIFICANT
QUANTITIES OF UNNEEDED GAS, THEN THE COMMISSION MUST SUPPLY AN ADEQUATE
FORUM IN WHICH TO HEAR THEIR CONTENTIONS.  WE HOLD ONLY THAT, SO FAR AS
APPEARS FROM THE RECORD BEFORE US, PIPELINE PROCEEDINGS CAN SERVE AS
SUCH A FORUM.  IF SUBSEQUENT EVENTS SHOULD DEMONSTRATE THAT EXISTING
PIPELINE PROCEEDINGS, ARE INADEQUATE, THEN THE COMMISSION MUST PROVIDE
NEW ARENAS FOR OBJECTION. 

FOR THE FOREGOING REASONS, WE AFFIRM THE DECISION OF THE COURT OF
APPEALS FOR THE TENTH CIRCUIT AND REVERSE THAT OF THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT ON THE IN-LINE PRICE ISSUE.  WE
REVERSE THE DECISION OF THE TENTH CIRCUIT ON THE QUESTION OF REFUNDS
AND THAT OF THE DISTRICT OF COLUMBIA CIRCUIT ON THE MATTER OF NEED. 

              IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

/1A/  TOGETHER WITH NO. 61, UNITED GAS IMPROVEMENT CO. V. SUNRAY DX
OIL CO. ET AL., NO. 62, BROOKLYN UNION GAS CO. ET AL. V. FEDERAL POWER
COMMISSION ET AL., NO. 80, FEDERAL POWER COMMISSION V. STANDARD OIL CO.
OF TEXAS, A DIVIDION OF CHEVRON OIL CO., ET AL., AND NO. 97, UNITED GAS
IMPROVEMENT CO. V. SUNRAY DX OIL CO., ALSO ON CERTIORARI TO THE SAME
COURT; NO. 111, SHELL OIL CO. V. PUBLIC SERVICE COMMISSION OF NEW YORK,
NO. 143, SKELLY OIL CO. ET AL. V. PUBLIC SERVICE COMMISSION OF NEW YORK
ET AL., NO. 144, FEDERAL POWER COMMISSION V. PUBLIC SERVICE COMMISSION
OF NEW YORK ET AL., AND NO. 231, SUPERIOR OIL CO. V. FEDERAL POWER
COMMISSION ET AL., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

/1/  SEE GENERALLY JOHNSON, PRODUCER RATE REGULATION IN NATURAL GAS
CERTIFICATION PROCEEDINGS: CATCO IN CONTEXT, 62 COL.L.REV.  773, 782
788 (1962). 

/2/  SEE, E.G., UNITED GAS IMPROVEMENT CO. V. FPC, 283 F.2D 817;
PUBLIC SERV. COMM'N V. FPC, 109 U.S.APP.D.C. 292, 287 F.2D 146; UNITED
GAS IMPROVEMENT CO. V. FPC, 287 F.2D 159; UNITED GAS IMPROVEMENT CO. V.
FPC, 290 F.2D 133 AND 147; CALIFORNIA OIL CO., W. DIV. V. FPC, 315 F.2D
652. 

A TWO-PARTY MOST-FAVORED-NATION CLAUSE ASSURES A PRODUCER THAT HE
WILL RECEIVE THE HIGHEST PRICE CURRENTLY BEING PAID BY HIS PURCHASER TO
ANY PRODUCER IN THE SAME AREA.  A THREE-PARTY MOST-FAVORED-NATION
CLAUSE GUARANTEES A PRODUCER THE HIGHEST PRICE PRESENTLY BEING PAID TO
ANY PRODUCER IN THE AREA BY ANY PURCHASER.  SEE, E.G., PURE OIL CO., 25
F.P.C. 383. 

/3/  SEE, E.G., UNITED GAS IMPROVEMENT CO. V. FPC, 283 F.2D 817;
UNITED GAS IMPROVEMENT CO. V. FPC, 287 F.2D 159; TEXACO SEABOARD INC.,
29 F.P.C. 593; HASSIE HUNT TRUST (OPERATOR), 30 F.P.C. 1438, AFF'D SUB
NOM. CONTINENTAL OIL CO. V. FPC, 378 F.2D 510. 

/4/  SEE UNITED GAS IMPROVEMENT CO. V. CALLERY PROPERTIES, INC., 382
U.S. 223, 228, N. 3. 

/5/  SEE, E.G., PLACID OIL CO., 30 F.P.C. 283.  IN 1961, THE
COMMISSION BY RULE PROSPECTIVELY LIMITED THE FORMS OF THE ESCALATION
CLAUSES THEMSELVES.  SEE INFRA, N. 6. 

/6/  IN THE CASES BEFORE US, THE COMMISSION DID UTILIZE ITS
AUXILIARY POWER, SEE SUPRA, AT 19-20, TO LIMIT THE AMOUNT OF SUCH SEC.
4 INCREASES, BUT THE PRODUCERS REMAINED FREE AFTER SIX MONTHS (I.E., 30
DAYS' NOTICE PLUS FIVE MONTHS' SUSPENSION) TO RAISE THEIR PRICES AT
LEAST 10%, IF THEIR CONTRACTS PERMITTED.  IN 1961, AFTER MANY OF THE
CONTRACTS IN THESE CASES HAD BEEN ENTERED INTO, THE COMMISSION ISSUED A
RULE WHICH PROSPECTIVELY LIMITED THE TYPES OF ESCALATION CLAUSES WHICH
MIGHT BE INCLUDED IN CONTRACTS.  SEE ORDER NO. 232, 25 F.P.C. 379. 
THIS ORDER WAS MODIFIED BY ORDER NO. 242, 27 F.P.C. 339.  SEE ALSO 18
CFR 154.93; FPC V. TEXACO INC., 377 U.S. 33, 42-44. 

/7/  SEE, E.G., 30 F.P.C. 1354, 1357. 

/8/  SEE, E.G., 2 JOINT INITIAL STAFF BRIEF, HUGOTON-ANADARKO-TEXAS
GULF COAST AREA RATE PROCEEDINGS, F.P.C. DOCKET NOS. AR 64-1 AND AR 64
2, AT 486-488. 

/9/  THE COMMISSION SPECIFICALLY RESERVED DECISION OF THIS QUESTION
IN ITS DECISION IN THE PERMIAN BASIN AREA RATE PROCEEDING.  SEE 34
F.P.C. 1068, 1074-1075. 

/10/  SEE, E.G., FPC V. HOPE NATURAL GAS CO., 320 U.S. 591, 618;
MONTANA-DAKOTA UTILS.  CO. V. NORTHWESTERN PUBLIC SERV. CO., 341 U.S.
246, 254. 

/11/  FOR EXAMPLE, IN SOME SITUATIONS A RELATIVELY HIGH INITIAL
PRICE MIGHT BE THOUGHT DESIRABLE TO ENCOURAGE PRODUCERS TO DEVELOP NEW
RESERVES BUT A LOWER REFUND FLOOR MIGHT BE DEEMED NECESSARY TO PROTECT
CONSUMERS. 

/12/  SEE 31 F.P.C.,AT 629-637; 34 F.P.C.,AT 900-904, 933-938. 

/13/  SEE, E.G., M. ADELMAN, THE SUPPLY AND PRICE OF NATURAL GAS 25
(1962). 

/14/  SEE, E.G., PERMIAN BASIN AREA RATE CASES, 390 U.S.,AT 792-795;
E. NEUNER, THE NATURAL GAS INDUSTRY 148-177, 209-290 (1960). 

/15/  SEE BRIEF FOR SUNRAY DX OIL COMPANY ET AL. 11, 23-26. 

/16/  SEE 4 JOINT APPENDIX 128. 

/17/  THE SEABOARD INTERESTS APPARENTLY FOLLOWED THE SAME COURSE IN
DISTRICTS 2 AND 3 AS IN DISTRICT 4, CHALLENGING ALL APPLICATIONS FOR
PERMANENT CERTIFICATES AT PRICES ABOVE 15[ PER MCF.  SEE BRIEF FOR
SHELL OIL COMPANY ET AL. 6-8, 19-21. 

/18/  SEE 34 F.P.C.,AT 902, N. 3.  IT APPEARS THAT THE LAST OF THE
SALES WAS ALSO IN THIS CATEGORY.  SEE IBID.; 3 JOINT APPENDIX 131, 136,
N.D; AUSTRAL OIL CO., 22 F.P.C. 658 AND 858. 

/19/  SEE BRIEF FOR THE SUPERIOR OIL COMPANY 36, N. 48. 

/20/  SEE ID., AT 39-40. 

/21/  SUPERIOR ALSO CLAIMS THAT THE COMMISSION ABUSED ITS DISCRETION
BY CONSIDERING SALES AT PRICES BELOW 14[ IN FIXING THE INITIAL RATES
FOR BOTH PERIODS, EVEN THOUGH IT HAD EXCLUDED SUCH SALES IN PREVIOUS
DISTRICT 3 IN-LINE PROCEEDINGS.  SUPERIOR DID NOT MENTION THIS POINT IN
ITS PETITION FOR REHEARING BEFORE THE COMMISSION.  SEE 3 JOINT APPENDIX
314(I); EXCEPTIONS OF THE SUPERIOR OIL COMPANY TO THE DECISION OF THE
HEARING EXAMINER, IN THE MATTER OF H. L. HAWKINS & H. L. HAWKINS , JR.
(OPERATOR), F.P.C. DOCKET NO. G-18077.  HENCE, THE QUESTION IS NOT
PROPERLY BEFORE US.  SEE NATURAL GAS ACT SEC. 19(B), 15 U.S.C. 717RB). 

/22/  SEE, E.G., TEXACO SEABOARD INC., 29 F.P.C. 593, 599. 

/23/  THE HEARING EXAMINER, WHO ALSO ARRIVED AT A 16[ PRICE,
APPARENTLY RELIED UPON A GENERAL STANDARD DIFFERENT FROM THAT USED BY
THE COMMISSION IN THE DISTRICT 4 OR AMERADA PROCEEDINGS, SUPRA.
QUOTING FROM THE COMMISSION'S OPINIONS IN TEXACO-SEABOARD INC., 27
F.P.C. 482, 485, AND HASSIE HUNT TRUST (OPERATOR), 30 F.P.C. 1438,
1445, THE EXAMINER SAID: 

"' . . . THE PRICE DOES NOT ACCORD WITH THE HIGHEST PRICE OR PRICES
PERMANENTLY AUTHORIZED BUT FALLS BETWEEN THE HIGHEST GROUP OF PRICES
AND THE MEDIAN PRICE.'"  34 F.P.C.,AT 952. 

/24/  THE COMMISSION STAFF HAS RECOMMENDED A JUST AND REASONABLE
RATE OF 16.8[ PER MCF FOR NEW GAS-WELL GAS SOLD IN THE TEXAS GULF COAST
UNDER CONTRACTS DATED AFTER DECEMBER 31, 1960, AND DELIVERED AT A
CENTRAL POINT.  SEE 2 JOINT INITIAL STAFF BRIEF, HUGUTON-ANADARKO-TEXAS
GULF COAST AREA RATE PROCEEDINGS, F.P.C. DOCKET NOS. AR 64-1 AND AR 64
2, AT 375.  THE SUGGESTED JUST AND REASONABLE RATE FOR POST-1960 NEW
GAS-WELL GAS DELIVERED AT THE WELLHEAD IS 16.4[ PER MCF.  IBID. ABOUT
90% OF TEXAS GULF COAST GAS IS CENTRALLY DELIVERED.  SEE ID., AT 390
391. 

/25/  DURING ORAL ARGUMENT, COUNSEL FOR THE COMMISSION STATED THAT
THE COMMISSION HAS SUSPENDED ALL CONTESTED IN-LINE PRICE PROCEEDINGS
PENDING COMPLETION OF THE AREA RATE PROCEEDINGS FOR THE AREAS
INVOLVED.  THE JUST AND REASONABLE RATES DETERMINED IN THOSE
PROCEEDINGS APPARENTLY WILL AUTOMATICALLY BECOME THE IN-LINE PRICES FOR
THOSE AREAS.  CF. PERMIAN BASIN AREA RATE CASES, 390 U.S.,AT 822, N.
14. 

/26/  THE HEARING EXAMINER WAS EQUALLY UNSPECIFIC.  SEE 34 F.P.C.,AT
914 ET SEQ. 

/27/  SEE SUPRA, N. 24. 

/28/  SEE BRIEF FOR THE FEDERAL POWER COMMISSION 49, N. 37. 

/29/THE CERTIFICATES CONTAINED PROVISIONS TO THE EFFECT THAT; 

"THIS ACCEPTANCE FOR FILING SHALL NOT BE CONSTRUED AS CONSTITUTING
APPROVAL OF ANY RATE . . .; NOR SHALL SUCH ACCEPTANCE BE DEEMED AS
RECOGNITION OF ANY CLAIMED CONTRACTUAL RIGHT OR OBLIGATION . . .; AND
SUCH ACCEPTANCE IS WITHOUT PREJUDICE TO ANY FINDINGS OR ORDERS WHICH
MAY BE MADE IN THE FINAL DISPOSITION OF THIS PROCEEDING . . . "  SEE,
E.G., 1 JOINT APPENDIX 71-72. 

/30/  SEE, E.G., 1 JOINT APPENDIX 78-81; 18 CFR 157.17. 

/31/  COUNSEL FOR THE COMMISSION STATED ON ORAL ARGUMENT THAT IN THE
EARLY 1960'S THE COMMISSION, ON ITS OWN INITIATIVE, DID BEGIN TO MAKE
INFORMATION ABOUT ISSUANCE OF TEMPORARY CERTIFICATES AVAILABLE TO THE
PUBLIC AT ITS OFFICE. 

/32/  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS HELD THAT THE
PRODUCER ITSELF MUST CHALLENGE THE CERTIFICATE WITHIN 60 DAYS AFTER IT
IS ISSUED.  TEXACO, INC. V. FPC, 290 F.2D 149.  THERE IS NO OCCASION
FOR US TO PASS ON THE CORRECTNESS OF THAT DECISION.     /33/  SOME OF
THE PRODUCERS INVOLVED IN THE AMERADA PROCEEDING DELIVERED GAS UNDER
TEMPORARY CERTIFICATES FOR MORE THAN 2 1/2 YEARS.  E.G., COMPARE 1
JOINT APPENDIX 71 WITH ID., AT 166. 

/34/  NO PARTY HAS CONTENDED THAT THE REFUNDS SHOULD HAVE BEEN BASED
ON THE EVENTUAL JUST AND REASONABLE RATE, AND WE THINK IT CLEAR THAT
THE COMMISSION DID NOT EXCEED ITS AUTHORITY IN FOUNDING THEM ON THE IN
LINE PRICE.  SEE SUPRA, AT 36-37; UNITED GAS IMPROVEMENT CO. V. CALLERY
PROPERTIES, INC., 382 U.S. 223, 230. 

/35/  BECAUSE THE COURT OF APPEALS HELD THAT THE COMMISSION LACKED
POWER TO REQUIRE REFUNDS, IT DID NOT PASS ON THE PRODUCERS' CONTENTIONS
THAT THE REFUNDS ACTUALLY ORDERED WERE INEQUITABLE.  THOSE CONTENTIONS
WERE PRESENTED TO THIS COURT IN THE PRODUCERS' REPLY BRIEF.  ALTHOUGH
WE NORMALLY DO NOT REVIEW ORDERS OF ADMINISTRATIVE AGENCIES IN THE
FIRST INSTANCE, SEE, E.G., FPC V. UNITED GAS PIPE LINE CO., 386 U.S.
237, 247, WE CONSIDER IT APPROPRIATE IN THIS INSTANCE TO RESOL-E THIS
QUESTION WITHOUT REMAND TO THE COURT BELOW FOR INITIAL CONSIDERATION,
IN ORDER THAT THIS EXTENDED PROCEEDING MAY AT LAST COME TO AN END. 
COMPARE, E.G., PERMIAN BASIN AREA RATE CASES, 390 U.S.,AT 822, N. 114;
CHICAGO & N.W.R. CO. V. ATCHISON, T. & S.F.R. CO., 387 U.S. 326, 355
356. 

/36/  SEE 36 F.P.C. 962 (MEMORANDUM OPINION AND ORDER CONFIRMING
AMERADA ORDER REQUIRING REFUNDS). 

/37/  SEE TURNBULL & ZOCH DRILLING CO., 36 F.P.C. 164, 166-167. 

/38/  CF. 1 JOINT APPENDIX 159-162 (UNREPORTED OPINIONS OF
COMMISSIONERS MORGAN AND ROSS CONCURRING IN THE COMMISSION'S FEB. 5,
1963, DENIAL OF PROSPECTIVE REFUND CONDITIONS IN AMERADA). 

/39/  A CONTRACTUAL "TAKE-OR-PAY" PROVISION OBLIGATES A PIPELINE,
OVER A STATED PERIOD, TO TAKE AN AVERAGE AMOUNT OF GAS OR TO PAY FOR
IT.  A "MAKE-UP" PERIOD IS ALSO SPECIFIED, DURING WHICH THE PIPELINE
MAY TAKE THE GAS PREVIOUSLY PAID FOR WITHOUT FURTHER PAYMENTS.  THE
"PREPAYMENTS" FOR GAS NOT YET TAKEN USUALLY ARE CAPITALIZED AND
INCLUDED IN THE PIPELINE'S RATE BASE. 

/40/  SEE, E.G., TRANSWESTERN PIPELINE CO., 36 F.P.C. 176, 191-199;
TRANSCONTINENTAL GAS PIPE LINE CORP., F.P.C. DOCKET NO. CP 65-181
(PHASE II), OPINION NO. 532, NOV. 6, 1967.  SEE ALSO FPC V.
TRANSCONTINENTAL GAS PIPE LINE CORP., 365 U.S. 1. 

/41/  AT PRESENT, "BUDGET" AUTHORITY PERMITS A PIPELINE TO EXPEND ON
GAS-PURCHASING FACILITIES THE LESSER OF $5,000,000 OR 1.5% OF ITS
EXISTING PLANT INVESTMENT, WITH THE TOTAL COST OF ANY SINGLE GAS
PURCHASE PROJECT NOT TO EXCEED THE LESSER OF $500,000 OR 25% OF THE
TOTAL BUDGET AMOUNT.  SEE 18 CFR 157.7(B). 

/42/  SEE ID., SEC. 157.9 ET SEQ. ANNUAL REPORTS MUST BE MADE TO THE
COMMISSION DESCRIBING THE PRIOR YEAR'S CONSTRUCTION.  ID., SEC.
157.7(B)(3). 

/43/  SEE ID., SEC. 260.7. 

/44/  SEE FEDERAL POWER COMMISSION, ANNUAL REPORTS, 1963-1967;
FEDERAL POWER COMMISSION, THE GAS SUPPLIES OF INTERSTATE NATURAL GAS
PIPELINE COMPANIES, CALENDAR AYERS 1963 AND 1964 (FEBRUARY 1966);
FEDERAL POWER COMMISSION, THE GAS SUPPLIES OF INTERSTATE NATURAL GAS
PIPELINE COMPANIES, CALENDAR YEARS 1964 AND 1965 (AUGUST 1967). 

/45/  THE PRODUCERS ASSERT THAT THE END-USE ASPECT OF THE NEED ISSUE
IS NOT PROPERLY BEFORE US BECAUSE THE NEW YORK PUBLIC SERVICE
COMMISSION FAILED TO RAISE THE ISSUE IN ITS PETITION FOR REHEARING
BEFORE THE COMMISSION, A- REQUIREC BY SEC. 19(B) OF THE ANTURAL GAS
ACT, 15 U.S.C. 717RB).  SINCE THE COURT OF APPEALS DID RULE ON THE END
USE QUESTION, AND SINCE WE HOLD IN FAVOR OF THE PRODUCERS ON ALL PARTS
OF THE NEED ISSUE, WE THINK IT APPROPRIATE TO REACH THE QUESTION
WITHOUT PASSING UPON THE PRODUCERS' PROCEDURAL CLAIM. 

/46/  SEE CALIFORNIA V. LO-VACA GATHERING CO., 379 U.S. 366, 369
370; MISSISSIPPI RIVER FUEL CORP. V. FPC, 102 U.S.APP.D.C. 238, 252
F.2D 619, 623-625. 

/47/  THE COMMISSION ELSEWHERE HAS CONCEDED THAT THE ADMINISTRATIVE
BURDEN OF SUCH A PROCEDURE WOULD NOT BE UNBEARABLE.  SEE MEMORANDUM FOR
THE FEDERAL POWER COMMISSION IN AUSTRAL OIL CO. V. FPC, NO. 504,
OCTOBER TERM, 1967, AT 5-6. 

/48/  SEE FPC V. HUNT, 376 U.S. 515, 527; UNITED GAS IMPROVEMENT CO.
V. CALLERY PROPERTIES, INC., 382 U.S. 223, 228, N. 3. 

/49/  SEE ORDER NO. 279, 31 F.P.C. 750. 

/50/  SEE ORDER NO. 301, 34 F.P.C. 76. 

/51/  SEE ORDER NO. 334, 37 F.P.C. 110. 

/52/  SEE 18 CFR 1.3 (NOTICE REQUIREMENT FOR SUBSTANTIVE RULEMAKING
PROCEEDINGS). 

/53/  THE SEABOARD INTERESTS APPARENTLY ACHIEVED CONSIDERABLE
SUCCESS IN A PIPELINE CERTIFICATION PROCEEDING WHICH GREW OUT OF THE
SINCLAIR PROCEEDING NOW UNDER REVIEW.  SEE LONE STAR GAS CO., 36 F.P.C.
497; LONE STAR GAS CO., F.P.C. DOCKET NO. CP 65-118, ORDER VACATING
CERTIFI-ATES, SEPT. 15, 1967. 

/54/  COUNSEL FOR THE COMMISSION ESTIMATED ON ORAL ARGUMENT THAT 25%
OF THE GAS INVOLVED IN THE SINCLAIR AND HAWKINS PROCEEDINGS COULD BE
ATTACHED AT EXISTING FACILITIES. 

/55/  SEE SUPRA, AT 48 AND N. 40. 

/56/  THE COMMISSION HAS ATTEMPTED TO FULFILL THIS DUTY BY
REGULATING BOTH THE TAKE-OR-PAY AND END-USE ASPECTS OF THE NEED
QUESTION.  SEE SUPRA, AT 48, 50, 51. 

PETER H. SCHIFF ARGUED THE CAUSE FOR THE FEDERAL POWER COMMISSION. 
WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, RALPH S.
SPRITZER, HARRIS WEINSTEIN, RICHARD A. SOLOMON, AND JOEL YOHALEM. 

WILLIAM T. COLEMAN, JR., AND MORTON L. SIMONS ARGUED THE CAUSE FOR
THE PUBLIC SERVICE COMMISSION OF NEW YORK ET AL. (CONSUMER-DISTRIBUTOR
GROUP).  WITH MR. COLEMAN ON THE BRIEFS FOR THE UNITED GAS IMPROVEMENT
CO. WERE ROBERT W. MARIS, RICHARDSON DILWORTH, AND HAROLD E. KOH.  WITH
MR. SIMONS ON THE BRIEFS FOR THE CONSUMER-DISTRIBUTOR GROUP WERE SAMUEL
GRAFF MILLER, KENT H. BROWN, EDWIN F. RUSSELL, BARBARA M. SUCHOW,
BERTRAM D. MOLL, AND BARBARA M. SIMONS. 

WILLIAM K. TELL, JR., THOMAS G. JOHNSON, WILLIAM T. KILBOURNE II,
FRANCIS H. CASKIN, AND JUSTIN R. WOLF ARGUED THE CAUSE FOR THE SUNRAY
DX OIL CO. ET AL. (PRODUCERS).  WITH MESSRS.  TELL AND CASKIN ON THE
BRIEFS FOR THE SUNRAY DX OIL CO. ET AL. WERE HOMER E. MCEWEN, JR.,
WILLIAM R. SLYE, JAMES D. ANNETT, PHILLIP D. ENDOM, ROBERT E. MAY,
RICHARD F. REMMERS, KIEL BOONE, MARTIN N. ERCK, FRANK S. TROIDL, THOMAS
G. CROUCH, ROBERT W. HENDERSON, DONALD K. YOUNG, WARREN M. SPARKS,
SHERMAN S. POLAND, ROBERT V. SMITH, VERNON W. WOODS, J. EVANS ATTWELL,
AND W. H. DRUSHEL, JR. WITH MR. JOHNSON ON THE BRIEFS FOR THE SHELL OIL
CO. ET AL. WERE MESSRS.  ERCK, TROIDL, POLAND, BERNARD A. FOSTER, JR.,
AND OLIVER L. STONE.  WITH MR. KILBOURNE ON THE BRIEFS FOR THE SUPERIOR
OIL CO. WERE MURRAY CHRISTIAN, H. W. VARNER, AND HOMER J. PENN.  WITH
MR. WOLF ON THE BRIEFS FOR THE STANDARD OIL CO. OF TEXAS WERE FRANCIS
R. KIRKHAM AND LOUISE C. POWELL. 

J. P. HAMMOND, HAROLD H. YOUNG, JR., WM. J. GROVE, CARROLL L.
GILLIAM, AND PHILLIP R. EHRENKRANZ FILED A BRIEF FOR THE PAN AMERICAN
PETROLEUM CORP., AS AMICUS CURIAE. 
..END :



















INTERSTATE CIRCUIT V. CITY OF DALLAS, 391 U.S. 53 


       INTERSTATE CIRCUIT, INC., ET AL. V. CITY OF DALLAS. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

        NO. 42.  DECIDED MAY 6, 1968.  /1/

CERTIORARI GRANTED; 366 F.2D 590, VACATED AND REMANDED. 


PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS
VACATED AND THE CASES ARE REMANDED TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF THE
OPINION OF THIS COURT IN INTERSTATE CIRCUIT, INC. V. CITY OF DALLAS,
390 U.S. 676, DECIDED APRIL 22, 1968. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS WOULD GRANT CERTIORARI AND
REVERSE THE JUDGMENT OF THE COURT OF APPEALS FOR THE REASONS STATED IN
THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN GINSBERG V. NEW YORK,
390 U.S. 629, 650, DECIDED APRIL 22, 1968. 

/1/  TOGETHER WITH NO. 44, CITY OF DALLAS V. INTERSTATE CIRCUIT,
INC., ET AL., ALSO ON PETITION FOR WRIT OF CERTIORARI TO THE SAME
COURT. 

GROVER HARTT, JR., AND EDWIN TOBOLOWSKY FOR PETITIONERS IN NO. 42. 

N. ALEX BICKLEY AND TED P. MACMASTER FOR PETITIONER IN NO. 44 AND
FOR RESPONDENT IN NO. 42. 
..END :



















PERMIAN BASIN AREA RATE CASES, 390 U.S. 747 


       PERMIAN BASIN AREA RATE CASES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 TENTH CIRCUIT. 

        ARGUED DECEMBER 5-7, 1967.-- DECIDED MAY 1, 1968.  /1A/ 


FOLLOWING THIS COURT'S DECISION IN PHILLIPS PETROLEUM CO. V.
WISCONSIN, 347 U.S. 672, HOLDING THAT INDEPENDENT PRODUCERS ARE
"NATURAL GAS COMPANIES)" WITHIN THE MEANING OF SEC. 2(6) OF THE NATURAL
GAS ACT, THE FEDERAL POWER COMMISSION (FPC) STRUGGLED UNDER A HEAVY
ADMINISTRATIVE BURDEN IN ATTEMPTING TO DETERMINE WHETHER PRODUCERS'
RATES WERE JUST AND REASONABLE UNDER SECS. 4(A) AND 5(A) BY EXAMINING
EACH PRODUCER'S COST OF SERVICE.  IN 1960 THE FPC ANNOUNCED THAT IT
WOULD BEGIN A SERIES OF PROCEEDINGS UNDER SEC. 5(A) IN WHICH IT WOULD
DETERMINE MAXIMUM PRODUCERS' RATES FOR EACH MAJOR PRODUCING AREA.  A
STATEMENT OF GENERAL POLICY WAS ISSUED BY THE FPC, ASSERTING ITS
AUTHORITY TO DETERMINE AND REQUIRE APPLICATION THROUGHOUT A PRODUCING
AREA OF MAXIMUM RATES FOR PRODUCERS' INTERSTATE SALES, TENTATIVELY
DESIGNATING CERTAIN AREAS AS PRODUCING UNITS FOR RATE REGULATION (THREE
OF WHICH AREAS WERE CONSOLIDATED FOR THIS PROCEEDING), AND PROVIDING
TWO SERIES OF AREA GUIDELINE PRICES, FOR INITIAL FILINGS AND FOR
INCREASED RATES.  THIS FIRST AREA PROCEEDING WAS INITIATED IN 1960, AND
IN 1965 THE FPC ISSUED ITS DECISION, DEVISING FOR THE PERMIAN BASIN
AREA A RATE STRUCTURE WITH TWO AREA MAXIMUM PRICES, ONE FOR NATURAL GAS
PRODUCED FROM GAS WELLS, AND DEDICATED TO INTERSTATE COMMERCE AFTER
JANUARY 1, 1961, AND THE OTHER, AND LOWER, PRICE FOR ALL OTHER NATURAL
GAS PRODUCED IN THE AREA.  THE FPC FOUND THAT PRICE COULD BE AN
INCENTIVE FOR EXPLORATION AND PRODUCTION OF NEW GAS-WELL GAS, WHILE
SUPPLIES OF ASSOCIATED AND DISSOLVED GAS AND PREVIOUSLY COMMITTED
RESERVES OF GAS-WELL GAS WERE RELATIVELY UNRESPONSIVE TO PRICE
VARIATIONS.  THE FPC DID NOT USE PREVAILING FIELD PRICES IN CALCULATING
RATES, BUT UTILIZED COMPOSITE COST DATA FROM PUBLISHED SOURCES AND FROM
PRODUCERS'  COST QUESTIONNAIRES, ESTABLISHING THE NATIONAL COSTS IN
1960 OF FINDING AND PRODUCING GAS-WELL GAS, AND, FOR ALL OTHER GAS,
DERIVING THE JUST AND REASONABLE RATE FROM HISTORICAL COSTS OF GAS-WELL
GAS PRODUCED IN THE PERMIAN BASIN IN 1960, WITH A LOCAL AND HISTORICAL
EMPHASIS.  THE UNCERTAINTIES OF JOINT COST ALLOCATION MADE IT DIFFICULT
TO COMPUTE THE COST OF GAS PRODUCED IN ASSOCIATION WITH OIL, BUT THE
FPC FOUND THAT THE COSTS OF SUCH GAS WERE LESS THAN THOSE INCURRED IN
PRODUCING FLOWING GAS-WELL GAS.  EACH MAXIMUM RATE INCLUDES A RETURN TO
THE PRODUCER OF 12% ON AVERAGE PRODUCTION INVESTMENT BASED ON THE FPC'S
TWO SERIES OF COST COMPUTATIONS.  A SYSTEM OF QUALITY AND BTU
ADJUSTMENTS WAS PROVIDED FOR.  THE FOLLOWING RATES WERE DETERMINED:
16.5[ PER MCF (INCLUDING STATE PRODUCTION TAXES) IN TEXAS, AND 15.5[
(EXCLUDING STATE PRODUCTION TAXES) IN NEW MEXICO, FOR GAS-WELL GAS
DEDICATED TO INTERSTATE COMMERCE AFTER JANUARY 1, 1961; 14.5[ PER MFC
(INCLUDING TAXES) IN TEXAS, AND 13.5[ PER MCF (EXCLUDING TAXES) IN NEW
MEXICO, FOR FLOWING GAS, INCLUDING OIL-WELL GAS AND GAS-WELL GAS
DEDICATED TO INTERSTATE COMMERCE BEFORE 1961; 9[ PER MCF MINIMUM FOR
ALL GAS OF PIPELINE QUALITY.  THE FPC DECLARED THAT IT WOULD PROVIDE
SPECIAL RELIEF IN HARDSHIP CASES; THAT SMALL PRODUCERS (ANNUAL NATIONAL
SALES NOT ABOVE 10,000,000 MCF) NEED NOT ADJUST PRICES FOR QUALITY AND
BTU DEFICIENCIES; THAT IT WOULD REQUIRE A MORATORIUM UNTIL JANUARY 1,
1968, FOR FILING UNDER SEC. 4(D) FOR PRICES ABOVE THE APPLICABLE AREA
MAXIMUM; THAT THE USE OF INDEFINITE ESCALATION CLAUSES TO INCREASE
PREVAILING CONTRACT PRICES ABOVE THE AREA MAXIMUM WAS THEREAFTER
PROHIBITED; AND THAT REFUNDS WERE REQUIRED OF THE IDFFERENCE BETWEEN
AMOUNTS COLLECTED BY PRODUCERS IN PERIODS SUBJECT TO REFUND AND THE
AMOUNTS PERMITTED UNDER THE AREA RATE.  THE COURT OF APPEALS HELD THAT
THE FPC HAD AUTHORITY TO IMPOSE MAXIMUM AREA RATES, SUSTAINED (BUT
STAYED ENFORCEMENT OF) THE MORATORIUM ON SEC. 4(D) FILINGS, APPROVED
THE TWO-PRICE SYSTEM AND THE EXEMPTION FOR SMALL PRODUCERS, BUT
CONCLUDED THAT THE REQUIREMENTS OF FPC V. HOPE NATURAL GAS CO., 320
U.S. 591, WERE NOT SATISFIED.  IT HELD THAT THE FPC HAD NOT PROPERLY
CALCULATED THE FINANCIAL CONSEQUENCES OF THE QUALITY AND BTU
ADJUSTMENTS, HAD NOT MADE ESSENTIAL FINDINGS AS TO AGGREGATE REVENUE,
AND HAD NOT PRECISELY INDICATED THE CIRCUMSTANCES IN WHICH INDIVIDUAL
PRODUCERS COULD OBTAIN RELIEF FROM AREA RATES.  ON REHEARING, THE COURT
ALSO HELD THAT REFUNDS WERE PERMISSIBLE ONLY IF AGGREGATE ACTUAL AREA
REVENUES EXCEEDED AGGREGATE PERMISSIBLE AREA REVENUES, AND ONLY TO THE
AMOUNT OF THE EXCESS, APPORTIONED ON "SOME EQUITABLE CONTRACT-BY
CONTRACT BASIS."  HELD:

1.  A PRESUMPTION OF VALIDITY ATTACHES TO EACH EXERCISE OF THE FPC'S
EXPERTISE, AND THOSE WHO WOULD OVERTURN ITS JUDGMENT UNDERTAKE "THE
HEAVY BURDEN OF MAKING A CONVINCING SHOWING THAT IT IS INVALID BECAUSE
IT IS UNJUST AND UNREASONABLE IN ITS CONSEQUENCES."  FPC V. HOPE
NATURAL GAS CO., SUPRA, AT 602.  PP. 766-767. 

2.  THE FPC HAS CONSTITUTIONAL AND STATUTORY AUTHORITY TO ADOPT A
SYSTEM OF AREA REGULATION AND TO IMPOSE SUPPLEMENTARY REQUIREMENTS. 
PP. 768-790. 

     (A) AREA MAXIMUM RATES, DETERMINED IN CONFORMITY WITH THE

  NATURAL GAS ACT, AND INTENDED TO BALANCE INVESTOR AND CONSUMER

 INTERESTS, ARE CONSTITUTIONALLY PERMISSIBLE.  PP. 769-770. 

     (B) IN THESE CIRCUMSTANCES THE FPC'S BROAD GUARANTEES OF

  SPECIAL RELIEF WERE NOT INADEQUATE OR EXCESSIVELY IMPRECISE.  PP.

  771-772. 

     (C) THE FPC DID NOT ABUSE ITS DISCRETION BY ITS REFUSAL TO

  STAY, PRO TANTO, ENFORCEMENT OF THE AREA RATES PENDING

  DISPOSITIONS OF PRODUCERS' PETITIONS FOR SPECIAL RELIEF.  PP.

  773-774. 

    (D) AREA REGULATION IS CONSISTENT WITH THE TERMS OF THE ACT AND

  IS WITHIN THE STATUTORY AUTHORITY GRANTED THE FPC TO CARRY OUT

  ITS BROAD RESPONSIBILITIES; PP. 774-777. 

     (E) THE FPC MAY UNDER SECS. 5 AND 16 OF THE ACT IMPOSE A

  MORATORIUM ON THE FILING UNDER SEC. 4(D) OF PROPOSED RATES HIGHER

  THAN THOSE DETERMINED TO BE JUST AND REASONABLE, AND THE

  RELATIVELY BRIEF MORATORIUM DECLARED HERE DID NOT EXCEED OR ABUSE

  THE FPC'S AUTHORITY.  PP. 777-781. 

     (F) UNDER THE AUTHORITY OF SEC. 5(A) THE FPC PERMISSIBLY

  RESTRICTED THE APPLICATION OF INDEFINITE ESCALATION CLAUSES.  PP.

  781-784. 

     (G) THE PROBLEMS AND PUBLIC FUNCTIONS OF SMALL PRODUCERS
DIFFER

  SUFFICIENTLY TO PERMIT THEIR SEPARATE CLASSIFICATION, AND THE

  EXEMPTIONS CREATED FOR THEM BY THE FPC COMPORT WITH THE TERMS AND

  PURPOSES OF ITS STATUTORY RESPONSIBILITIES.  PP. 784-787. 

     (H) THE REGULATORY AREA DESIGNATED IN THIS FIRST AREA

  PROCEEDING WAS BOTH CONVENIENT AND FAMILIAR, AND THE FPC WAS NOT

  OBLIGED UNDER THESE CIRCUMSTANCES TO INCLUDE AMONG THE DISPUTED

  ISSUES QUESTIONS OF THE PROPER SIZE AND COMPOSITION OF THE

  REGULATORY AREA.  PP. 787-789. 

3.  THE RATE STRUCTURE DEVISED FOR NATURAL GAS PRODUCED IN THE
PERMIAN BASIN DID NOT EXCEED THE FPC'S AUTHORITY; AND THE "HEAVY
BURDEN" OF ATTACKING THE VALIDITY OF THAT RATE STRUCTURE HAS NOT BEEN
SATISFIED.  PP. 790-813. 

     (A) THE RESPONSIBILITIES OF A REVIEWING COURT ARE TO DETERMINE

  WHETHER THE FPC ABUSED OR EXCEEDED ITS AUTHORITY, WHETHER EACH OF

 THE ORDER'S ESSENTIAL ELEMENTS IS SUPPORTED BY SUBSTANTIAL

  EVIDENCE, AND WHETHER THE ORDER MAY REASONABLY BE EXPECTED TO

  MAINTAIN FINANCIAL INTEGRITY, ATTRACT NEEDED CAPITAL, AND FAIRLY

  COMPENSATE INVESTORS FOR RISKS THEY HAVE ASSUMED, WHILE

  APPROPRIATELY PROTECTING RELEVANT PUBLIC INTERESTS, BOTH EXISTING

  AND FORESEEABLE.  PP. 791-792. 

     (B) WHILE FIELD PRICES MAY HAVE SOME RELEVANCE IN THE

  CALCULATION OF JUST AND REASONABLE RATES, THE FPC WAS NOT

  COMPELLED, ON THIS RECORD, TO ADOPT FIELD PRICES AS THE BASIS OF

  ITS COMPUTATIONS OF AREA RATES.  PP. 792-795. 

     (C) THE TWO-PRICE RATE STRUCTURE, WHICH IS PERMISSIBLE UNDER

  THE ACT, WILL PROVIDE A USEFUL INCENTIVE TO EXPLORATION AND

  PREVENT EXCESSIVE PRODUCER PROFITS, AND THUS PROTECT BOTH PRESENT

  AND FUTURE CONSUMER INTERESTS.  PP. 795-799. 

     (D) THE FPC MAY EMPLOY "ANY FORMULA OR COMBINATION OF
FORMULAS"

  IT WISHES AND IS FREE "TO MAKE THE PRAGMATIC ADJUSTMENTS WHICH

  MAY BE CALLED FOR BY PARTICULAR CIRCUMSTANCES,"  AS LONG AS THE

  CONSEQUENCES ARE NOT ARBITRARY OR UNREASONABLE.  FPC V. NATURAL

  GAS PIPELINE CO., 315 U.S. 575, 586.  P. 800. 

     (E) IN CALCULATING COST DATA FOR THE TWO MAXIMUM RATES BY

  SELECTION OF DIFFERING GEOGRAPHICAL BASES AND TIME PERIODS THE

  FPC DID NOT ABUSE ITS AUTHORITY, AS ITS SELECTIONS COMPORTED WITH

  THE LOGIC OF ITS SYSTEM OF INCENTIVE PRICING.  PP. 800-803. 

     (F) THE FPC'S USE OF FLOWING GAS-WELL GAS COST DATA TO

  CALCULATE THE RATE FOR OLD GAS, DISREGARDINT THE COSTS OF GAS

  PRODUCED IN ASSOCIATION WITH OIL, WAS ESSENTIALLY PRAGMATIC, AND

  ITS JUDGMENT WAS WARRANTED UNDER THE CIRCUMSTANCES.  PP.803-805. 

     (G) THE COMPUTATION OF THE RATE BASE BY DETERMINING AN AVERAGE

  NET PRODUCTION INVESTMENT TO WHICH THE FPC APPLIED A CONSTANT

  RATE OF RETURN, WAS WITHIN THE FPC'S DISCRETION, AND WAS NOT

  ARBITRARY OR UNREASONABLE.  PP. 805-806. 

      (H) THE SELECTION OF 12% AS THE PROPER RATE OF RETURN FOR GAS

  OF PIPELINE QUALITY WAS SUPPORTED BY SUBSTANTIAL EVIDENCE THAT

  THE RATE WILL BE LIKE TO "MAINTAIN FINANCIAL INTEGRITY, TO

  ATTRACT CAPITAL, AND TO COMPENSATE INVESTORS FOR THE RISKS

  ASSUMED."  PP. 806-808. 

(I) IT WAS NOT IMPERMISSIBLE FOR THE FPC TO TREAT QUALITY

ADJUSTMENTS AS A RISK OF PRODUCTION, AND ITS PROMULGATION OF

  QUALITY STANDARDS WAS ACCOMPANIED BY ADEQUATE FINDINGS AS TO

  THEIR REVENUE CONSEQUENCES.  PP. 808-812. 

4. THE FPC'S RATE STRUCTURE WAS NOT HERE BEEN SHOWN TO DENY
PRODUCERS REVENUES CONSONANT WITH JUST AND REASONABLE RATES.  PP. 813
822. 

     (A) THE FPC NEED NOT PROVIDE FORMAL FINDINGS IN ABSOLUTE
DOLLAR

  AMOUNTS AS TO REVENUE AND REVENUE REQUIREMENTS; IT IS ENOUGH IF

  IT PROFFERS FINDINGS AND CONCLUSIONS SUFFICIENTLY DETAILED TO

  PERMIT REASONED EVALUATION OF THE PURPOSES AND IMPLICATIONS OF

  ITS ORDER.  P. 814. 

     (B) THE FPC PERMISSIBLY DISCOUNTED THE PRODUCERS' RELIANCE
UPON

  THE RELATIONSHIP BETWEEN GAS RESERVES AND PRODUCTION TO ESTABLISH

  THE INADEQUACY OF THE RATE STRUCTURE.  PP. 616-818. 

     (C) THE CONTENTION THAT SINCE THE AREA MAXIMUM RATES WERE

  DERIVED FROM AVERAGE COSTS THEY CANNOT, WITHOUT FURTHER

  ADJUSTMENT, PROVIDE AGGREGATE REVENUE EQUAL TO THE PRODUCERS'

  AGGREGATE REQUIREMENTS HAS NOT BEEN SUSTAINED.  PP. 818-821. 

     (D) THE FPC'S AUTHORITY TO ABROGATE EXISTING CONTRACT PRICES

  DEPENDS UPON ITS CONCLUSION THAT THEY "ADVERSELY AFFECT THE

  PUBLIC INTEREST," AND IT PROPERLY APPLIED THAT AUTHORITY IN

SETTING A MINIMUM AREA PRICE OF 9[ PER MCF AND DECLINING TO APPLY

  IT TO PRICES LESS THAN THE TWO AREA MAXIMUM RATES.  PP. 820-821. 

5.  SINCE IT HAS BEEN ALMOST EIGHT YEARS SINCE THESE PROCEEDINGS
WERE COMMENCED, AND THE REMAINING ISSUES, WHICH WERE NOT DECIDED BY THE
COURT OF APPEALS, WERE BRIEFED AND ARGUED AT LENGTH IN THIS COURT, NO
USEFUL PURPOSE WOULD BE SERVED BY FURTHER PROCEEDINGS IN THE COURT OF
APPEALS.  PP. 823-824. 

6.  THE FPC'S ORDERS REQUIRING REFUNDS OF (1) AMOUNTS CHARGED IN
EXCESS OF THE APPLICABLE AREA RATES FOR PERIODS FOLLOWING THE EFFECTIVE
DATE OF ITS ORDER AND (2) AMOUNGS COLLECTED IN EXCESS OF AREA RATES
DURING PREVIOUS PERIODS IN WHICH PRODUCERS' PRICES WERE SUBJECT TO
REFUND UNDER SEC. 4(E), WERE WITHIN ITS AUTHORITY.  IT REASONABLY
CONCLUDED THAT THE ADOPTION OF A SYSTEM OF REFUNDS CONDITIONED ON
FINDINGS AS TO AGGREGATE AREA REVENUES WOULD PROVE INEQUITABLE TO
CONSUMERS AND DIFFICULT TO ADMINISTER EFFECTIVELY.  PP. 825-828. 

375 F.2D 6 AND 35, AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.     MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THESE CASES STEM FROM PROCEEDINGS COMMENCED IN 1960 BY THE FEDERAL
POWER COMMISSION UNDER SEC. 5(A) OF THE NATURAL GAS ACT, /1B/  52 STAT.
823, 15 U.S.C. 717DA), TO DETERMINE MAXIMUM JUST AND REASONABLE RATES
FOR SALES IN INTERSTATE COMMERCE /2/  OF NATURAL GAS PRODUCED IN
PERMIAN BASIN.  /3/  24 F.P.C. 1121.  THE COMMISSION CONDUCTED EXTENDED
HEARINGS, /4/  AND IN 1965 ISSUED A DECISION THAT BOTH PRESCRIBED SUCH
RATES AND PROVIDED VARIOUS ANCILLARY REQUIREMENTS.  34 F.P.C. 159 AND
1068.  ON PEITIONS FOR REVIEW, THE COURT OF APPEALS FOR THE TENTH
CIRCUIT SUSTAINED IN PART AND SET ASIDE IN PART THE COMMISSION'S
ORDERS.  375 F.2D 6 AND 35.  BECAUSE THESE PROCEEDINGS BEGAN A NEW ERA
IN THE REGULATION OF NATURAL GAS PRODUCERS, WE GRANTED CERTIORARI AND
CONSOLIDATED THE CASES FOR BRIEFING AND EXTENDED ORAL ARGUMENT.  387
U.S. 902, 388 U.S. 906, 389 U.S. 817.  FOR REASONS THAT FOLLOW, WE
REVERSE IN PART AND AFFIRM IN PART THE JUDGMENTS OF THE COURT OF
APPEALS, AND SUSTAIN IN THEIR ENTIRETY THE COMMISSION'S ORDERS. 

        I. 

THE CIRCUMSTANCES THAT LED ULTIMATELY TO THESE PROCEEDINGS SHOULD
FIRST BE RECALLED.  THE COMMISSION'S AUTHORITY TO REGULATE INTERSTATE
SALES OF NATURAL GAS IS DERIVED ENTIRELY FROM THE NATURAL GAS ACT OF
1938.  52 STAT. 821.  THE ACT'S PROVISIONS DO NOT SPECIFICALLY EXTEND
TO PRODUCERS OR TO WELLHEAD SALES OF NATURAL GAS, /5/  AND THE
COMMISSION DECLINED UNTIL 1954 TO REGULATE SALES BY INDEPENDENT
PRODUCERS /6/ TO INTERSTATE PIPELINES.  /7/  ITS EFFORTS TO REGULATE
SUCH SALES BEGAN ONLY AFTER THIS COURT HELD IN 1954 THAT INDEPENDENT
PRODUCERS ARE "NATURAL-GAS COMPANIES)" WITHIN THE MEANING OF SEC. 2(6)
OF THE ACT.  15 U.S.C. 717A(6); PHILLIPS PETROLEUM CO. V. WISCONSIN,
347 U.S. 672.  THE COMMISSION HAS SINCE LABORED WITH OBVIOUS DIFFICULTY
TO REGULATE A DIVERSE AND GROWING INDUSTRY UNDER THE TERMS OF AN ILL
SUITED STATUTE. 

THE COMMISSION INITIALLY SOUGHT TO DETERMINE WHETHER PRODUCERS'
RATES WERE JUST AND REASONABLE WITHIN THE MEANING OF SECS. 4(A) /8/
AND 5(A) BY EXAMINATION OF EACH PRODUCER'S COSTS OF SERVICE.  /9/
ALTHOUGH THIS METHOD HAS BEEN WIDELY EMPLOYED IN VARIOUS RATE-MAKING
SITUATIONS, /10/  IT ULTIMATELY PROVED INAPPROPRIATE FOR THE REGULATION
OF INDEPENDENT PRODUCERS.  PRODUCERS OF NATURAL GAS CANNOT USEFULLY BE
CLASSED AS PUBLIC UTILITIES.  /11/  THEY ENJOY NO FRANCHISES OR
GUARANTEED AREAS OF SERVICE.  THEY ARE INTENSELY COMPETITIVE VENDORS OF
A WASTING COMMODITY THEY HAVE ACQUIRED ONLY BY COSTLY AND OFTEN
UNREWARDED SEARCH.  THEIR UNIT COSTS MAY RISE OR DECLINE WITH THE
VAGARIES OF FORTUNE.  THE VALUE OF THE PUBLIC OF THE SERVICES THEY
PERFORM IS MEASURED BY THE QUANTITY AND CHARACTER OF THE NATURAL GAS
THEY PRODUCE, AND NOT BY THE RESOURCES THEY HAVE EXPENDED IN ITS
SEARCH; THE COMMISSION AND THE CONSUMER ALIKE ARE CONCERNED PRINCIPALLY
WITH "WHAT (THE PRODUCER) GETS OUT OF THE GROUND, NOT . . . WHAT HE
PUTS INTO IT . . . . "  FPC V. HOPE NATURAL GAS CO., 320 U.S. 591, 649
(SEPARATE OPINION .  THE EXPLORATION FOR AND THE PRODUCTION OF NATURAL
GAS ARE THUS "MORE ERRATIC AND IRREGULAR AND UNPREDICTABLE IN RELATION
TO INVESTMENT THAN ANY PHASE OF ANY OTHER UTILITY BUSINESS."  ID., AT
647.  MOREOVER, THE NUMBER BOTH OF INDEPENDENT PRODUCERS AND OF
JURISDICTIONAL SALES IS LARGE, /12/  AND THE ADMINISTRATIVE BURDENS
PLACED UPON THE COMMISSION BY AN INDIVIDUAL COMPANY COSTS-OF-SERVICE
STANDARD WERE THEREFORE EXTREMELY HEAVY.  /13/ 

IN CONSEQUENCE, THE COMMISSION'S REGULATION OF PRODUCERS' SALES
BECAME INCREASINGLY LABORIOUS, UNTIL, IN 1960, IT WAS DESCRIBED AS THE
"OUTSTANDING EXAMPLE IN THE FEDERAL GOVERNMENT OF THE BREAKDOWN OF THE
ADMINISTRATIVE PROCESS."  /14/  THE COMMISSION IN 1960 ACKNOWLEDGED THE
GRAVITY OF ITS DIFFICULTIES, /15/  AND ANNOUNCED THAT IT WOULD COMMENCE
A SERIES OF PROCEEDINGS UNDER SEC. 5(A) IN WHICH IT WOULD DETERMINE
MAXIMUM PRODCUERS' RATES FOR EACH OF THE MAJOR PRODUCING AREAS.  /16
ONE MEMBER OF THE COMMISSION HAS SUBSEQUENTLY DESCRIBED THESE EFFORTS
AS "ADMITTEDLY . . . EXPERIMENTAL . . . . "  /17/  THESE CASES PLACE IN
QUESTION THE VALIDITY OF THE FIRST SUCH PROCEEDING.  /18/ 

THE PERIMETER OF THIS PROCEEDING WAS DRAWN BY THE COMMISSION IN ITS
SECOND PHILLIPS DECISION AND IN ITS STATE OF GENERAL POLICY NO. 61-1. 
THE COMMISSION IN HILLIPS ASSERTED THAT IT POSSESSES STATUTORY AUTHORTY
BOTH TO DETERMINE AND TO REQUIRE THE APPLICATION THROUGHOUT A PRODUCING
AREA OF MAXIMUM RATES FOR PRODUCERS' INTERSTATE SALES.  /19/  IT
AVERRED THAT THE ADOPTION OF AREA MAXIMUM RATES WOULD APPRECIABLY
REDUCE ITS ADMINISTRATIVE DIFFICULTIES, FACILITATE EFFECTIVE
REGULATION, AND ULTIMATELY PROVE BETTER SUITED TO THE CHARACTERISTICS
OF THE NATURAL GAS INDUSTRY.  EACH OF THESE CONCLUSIONS WAS REAFFIRMED
IN THE COMMISSION'S OPINION IN THESE PROCEEDINGS.  /20/  ITS STATEMENT
OF GENERAL POLICY TENTATIVELY DESIGNATED VARIOUS GEOGRAPHICAL AREAS AS
PRODUCING UNITS FOR PURPOSES OF RATE REGULATION; IN ADDITION, THE
COMMISSION THERE PROVIDED TWO SERIES OF AREA GUIDELINE PRICES, /21/
WHICH WERE EXPECTED TO HELP TO DETERMINE "WHETHER PROPOSED INITIAL
RATES SHOULD BE CERTIFICATED WITHOUT A PRICE CONDITION AND WHETHER
PROPOSED RATE CHANGES SHOULD BE ACCEPTED OR SUSPENDED."  /22/  THE
COMMISSION CONSOLIDATED THREE OF THE PRODUCING AREAS LISTED IN THE
STATEMENT OF GENERAL POLICY FOR PURPOSES OF THIS PROCEEDING. 

THE RATE STRUCTURE DEVISED BY THE COMMISSION FOR THE PERMIAN BASIN
INCLUDES TWO AREA MAXIMUM PRICES.  THE COMMISSION PROVIDED ONE AREA
MAXIMUM PRICE FOR NATURAL GAS PRODUCED FROM GAS WELLS AND DEDICATED TO
INTERSTATE COMMERCE AFTER JANUARY 1, 1961.  /23/  IT CREATED A SECOND,
AND LOWER, AREA MAXIMUM PRICE FOR ALL OTHER NATURAL GAS PRODUCED IN THE
PERMIAN BASIN.  THE COMMISSION REASONED THAT IT MAY EMPLOY PRICE
FUNCTIONALLY, AS A TOOL TO ENCOURAGE DISCOVERY AND PRODUCTION OF
APPROPRIATE SUPPLIES OF NATURAL GAS.  IT FOUND THAT PRICE COULD SERVE
AS A MEANINGFUL INCENTIVE TO EXPLORATION AND PRODUCTION ONLY FOR GAS
WELL GAS COMMITTED TO INTERSTATE COMMERCE SINCE 1960; THE SUPPLIES OF
ASSOCIATED AND DISSOLVED GAS, /24/  AND OF PREVIOUSLY COMMITTED
RESERVES OF GAS-WELL GAS, WERE, IN CONTRAST, FOUND TO BE RELATIVELY
UNRESPONSIVE TO VARIATIONS IN PRICE.  THE COMMISSION EXPECTED THAT ITS
ADOPTION OF SEPARATE MAXIMUM PRICES WOULD BOTH PROVIDE A SUITABLE
INCENTIVE TO EXPLORATION AND PREVENT EXCESSIVE PRODUCER PROFITS. 

THE COMMISSION DECLINED TO CALCULATE AREA RATES FROM PREVAILING
FIELD PRICES.  INSTEAD, IT DERIVED THE MAXIMUM JUST AND REASONABLE RATE
FOR NEW GAS-WELL GAS FROM COMPOSITE COST DATA, OBTAINED FROM PUBLISHED
SOURCES AND FROM PRODUERS THROUGH A SERIES OF COST QUESTIONNAIRES. 
THIS INFORMATION WAS INTENDED IN COMBINATION TO ESTABLISH THE NATIONAL
COSTS IN 1960 OF FINDING AND PRODUCING GAS-WELL GAS; IT WAS UNDERSTOOD
NOT TO REFLECT ANY VARIATIONS IN COST PECULIAR EITHER TO THE PERMIAN
BASIN OR TO PERIODS PRIOR TO 1960.  THE MAXIMUM JSUT AND REASONABLE
RATE FOR ALL OTHER GAS WAS DERIVED CHIEFLY FROM THE HISTORICAL COSTS OF
GAS-WELL GAS PRODUCED IN THE PERMIAN BASIN IN 1960; THE EMPHASIS WAS
HERE ENTIRELY LOCAL AND HISTORICAL.  THE COMMISSION BELIEVED THAT THE
UNCERTAINTIES OF JOINT COST ALLOCATION MADE IT DIFFICULT TO COMPUTE
ACCURATELY THE COST OF GAS PRODUCED IN ASSOCIATION WITH OIL.  /25/  IT
HELD, HOWEVER, THAT THE COSTS OF SUCH GAS COULD NOT BE GREATER, AND
MUST SURELY BE SMALLER, THAN THOSE INCURRED IN THE PRODUCTION OF
FLOWING GAS-WELL GAS.  IN ADDITION, THE COMMISSION STATED THAT THE
EXIGENCIES OF ADMINISTRATION DEMANDED THE SMALLEST POSSIBLE NUMBER OF
SEPARATE AREA RATES. 

EACH OF THE AREA MAXIMUM RATES ADOPTED FOR THE PERMAIN BASIN
INCLUDES A RETURN TO THE PRODUCER OF 12% ON AVERAGE PRODUCTION
INVESTMENT, CALCULATED FROM THE COMMISSION'S TWO SERIES OF COST
COMPUTATIONS.  THE COMMISSION ASSUMED FOR THIS PURPOSE THAT PRODUCTION
COMMENCES ONE YEAR AFTER INVESTMENT, THAT GAS WELLS DEPLETE UNIFORMLY,
AND THAT THEY ARE TOTALLY DEPLETED IN 20 YEARS.  THE RATE OF RETURN WAS
SELECTED AFTER STUDY OF THE RETURNS RECENTLY PERMITTED TO INTERSTATE
PIPELINES, BUT, IN ADDITION, WAS INTENDED TO TAKE FULLY INTO ACCOUNT
THE GREATER FINANCIAL RISKS OF EXPLORATION AND PRODUCTION.  THE
COMMISSION RECOGNIZED THAT PRODUCERS ARE HOSTAGES TO GOOD FORTUNE; THEY
MUST EXPECT THAT THEIR PROGRAMS OF EXPLORATION WILL FREQUENTLY PROVE
UNSUCCESSFUL, OR THAT ONLY GAS OF SUBSTANDARD QUALITY WILL BE FOUND. 

THE ALLOWANCES INCLUDED IN THE RETURN FOR THE UNCERTAINTIES OF
EXPLORATION WERE, HOWEVER, PARALLELED BY A SYSTEM OF QUALITY AND BTU
ADJUSTMENTS.  /26/  THE COMMISSION HELD THAT GAS OF LESS THAN PIPELINE
QUALITY MUST BE SOLD AT REDUCED PRICES, AND IT PROVIDED FOR THIS
PURPOSE A SYSTEM OF QUALITY STANDARDS.  THE PRICE REDUCTION APPROPRIATE
IN EACH SALE IS TO BE MEASURED BY THE COST OF THE PROCESSING NECESSARY
TO RAISE THE GAS TO PIPELINE QUALITY; THESE COSTS ARE TO BE DETERMINED
BY AGREEMENT BETWEEN THE PARTIES TO THE SALE, SUBJECT TO REVIEW AND
APPROVAL BY THE COMMISSION.  THE COMMISSION ULTIMATELY INDICATED THAT
IT WOULD ACCEPT ANY AGREEMENT WHICH REFLECTS "A GOOD FAITH EFFORT TO
APPROXIMATE THE PROCESSING COSTS INVOLVED . . . . "  34 F.P.C. 1068,
1071.  IN ADDITION, THE COMMISSION PRESCRIBED THAT GAS WITH A BTU
CONTENT OF LESS THAN 1,000 PER CUBIC FOOT MUST BE SOLD AT A PRICE
PROPORTIONATELY LOWER THAN THE APPLICABLE AREA MAXIMUM, AND THAT GAS
WITH A BTU CONTENT GREATER THAN 1,050 PER CUBIC FOOT MAY BE SOLD AT A
PRICE PROPROTIONATELY HIGHER THAN THE AREA MAXIMUM.  THE COMMISSION
ACKNOWLEDGED THAT THE AGGREGATE REVENUE CONSEQUENCES OF THESE
ADJUSTMENTS COULD NOT BE PRECISELY CALCULATED, ALTHOUGH ITS OPINION
DENYING APPLICATIONS FOR REHEARING PROVIDED ESTIMATES OF THE AVERAGE
PRICE REDUCTIONS THAT WOULD BE NECESSARY.  ID., AT 1073. 

THE COMMISSION DERIVED FROM THESE CALCULATIONS THE FOLLOWING RATES
FOR THE PERMIAN BASIN.  /27/  GAS-WELL GAS, INCLUDING ITS RESIDUE, AND
GAS-CAP GAS, DEDICATED TO INTERSTATE COMMERCE AFTER JANUARY 1, 1961,
MAY BE SOLD AT 16.5[ PER MCF (INCLUDING STATE PRODUCTION TAXES) IN
TEXAS, AND 15.5[ (EXCLUDING STATE PRODUCTION TAXES) IN NEW MEXICO. 
/28/  FLOWING GAS, INCLUDING OIL-WELL GAS AND GAS-WELL GAS DEDICATED TO
INTERSTATE COMMERCE BEFORE JANUARY 1, 1961, MAY BE SOLD AT 14.5[ PER
MCF (INCLUDING TAXES) IN TEXAS, AND 13.5[ PER MCF (EXCLUDING TAXES) IN
NEW MEXICO.  FURTHER, THE COMMISSION CREATED A MINIMUM JUST AND
REASONABLE RATE OF 9[ PER MCF FOR ALL GAS OF PIPELINE QUALITY SOLD
UNDER ITS JURISDICTION WITHIN THE PERMIAN BASIN.  IT FOUND THAT
EXISTING CONTRACTS THAT INCLUDED LOWER RATES WOULD "ADVERSELY AFFECT
THE PUBLIC INTEREST."  FPC V. SIERRA PACIFIC POWER CO., 350 U.S. 348,
355.  THE COMMISSION PERMITTED PRODUCERS TO FILE UNDER SEC. 4(D), 15
U.S.C. 717CD), /29/  FOR THE AREA MINIMUM RATE DESPITE EXISTING
CONTRACTUAL LIMITATIONS, AND WITHOUT THE CONSENT OF THE PURCHASER. 

THE COMMISSION ACKNOWLEDGED THAT AREA MAXIMUM RATES DERIVED FROM
COMPOSITE COST DATA MIGHT IN INDIVIDUAL CASES PRODUCE HARDSHIP, AND
DECLARED THAT IT WOULD, IN SUCH CASES, PROVIDE SPECIAL RELIEF.  IT
EMPHASIZED THAT EXCEPTIONS TO THE AREA RATES WOULD NOT BE READILY OR
FREQUENTLY PERMITTED, BUT DECLINED TO INDICATE IN DETAIL IN WHAT
CIRCUMSTANCES RELIEF WOULD BE GIVEN. 

THIS RATE STRUCTURE IS SUPPLEMENTED BY A SERIES OF ANCILLARY
REQUIREMENTS.  FIRST, THE COMMISSION PROVIDED VARIOUS SPECIAL
EXEMPTIONS FOR PRODUCERS WHOSE ANNUAL JURISDICTIONAL SALES THROUGHOUT
THE UNITED STATES DO NOT EXCEED 10,000,000 MCF.  THE PRICES IN SALES BY
THESE RELATIVELY SMALL PRODUCERS NEED NOT BE ADJUSTED FOR QUALITY AND
BTU DEFICIENCIES.  MOREOVER, THE COMMISSION BY SEPARATE ORDER COMMENCED
A RULE-MAKING PROCEEDING TO REDUCE THE SMALL PRODUCERS' REPORTING AND
FILING OBLIGATIONS UNDER SECS. 4 AND 7, 15 U.S.C. 717C, F. 34 F.P.C.
434. 

SECOND, THE COMMISSION IMPOSED A MORATORIUM UNTIL JANUARY 1, 1968,
UPON FILINGS UNDER SEC. 4(D) FOR PRICES IN EXCESS OF THE APPLICABLE
AREA MAXIMUM RATE.  THE COMMISSION CONCLUDED THAT SUCH A MORATORIUM WAS
IMPERATIVE IF THE ADMINISTRATIVE BENEFITS OF AN AREA PROCEEDING WERE TO
BE PRESERVED.  FURTHER, IT PERMANENTLY PROHIBITED THE USE OF INDEFINITE
ESCALATION CLAUSES TO INCREASE PREVAILING CONTRACT PRICES ABOVE THE
APPLICABLE AREA MAXIMUM RATE.  /30/ 

FINALLY, THE COMMISSION ANNOUNCED THAT, BY FURTHER ORDER, IT WOULD
REQUIRE REFUNDS OF THE DIFFERENCE BETWEEN AMOUNTS THAT INDIVIDUAL
PRODUCERS HAD ACTUALLY COLLECTED IN PERIODS SUBJECT TO REFUND, AND THE
AMOUNTS THAT WOULD HAVE BEEN PERMISSIBLE UNDER THE APPLICABLE AREA
RATE, INCLUDING ANY NECESSARY QUALITY ADJUSTMENTS.  /31/  SMALL
PRODUCERS, ALTHOUGH OBLIGED TO MAKE REFUNDS, ARE NOT REQUIRED TO TAKE
INTO PRICE REDUCTIONS FOR QUALITY DEFICIENCIES, UNLESS THEY WISH TO
TAKE ADVANTAGE OF UPWARD ADJUSTMENTS IN PRICE BECAUSE OF HIGH BTU
CONTENT.  THE COMMISSION REJECTED THE EXAMINER'S CONCLUSION THAT
REFUNDS WERE APPROPRIATE ONLY IF THE AGGREGATE AREA REVENUE ACTUALLY
COLLECTED EXCEEDS THE AGGREGATE AREA REVENUE PERMISSIBLE UNDER THE
APPLICABLE AREA RATES.  IT HELD THAT SUCH A FORMULA WOULD PROVE BOTH
INEQUITABLE TO PURCHASERS AND DIFFICULT FOR THE COMMISSION TO
ADMINISTER EFFECTIVELY. 

    (H) THE SELECTION OF 12% AS THE PROPER RATE OF RETURN FOR GAS

  OF PIPELINE QUALITY WAS SUPPORTED BY SUBSTANTIAL EVIDENCE THAT

  THE RATE WILL BE LIKE TO "MAINTAIN FINANCIAL INTEGRITY, TO

  ATTRACT CAPITAL, AND TO COMPENSATE INVESTORS FOR THE RISKS

  ASSUMED."  PP. 806-808. 

(I) IT WAS NOT IMPERMISSIBLE FOR THE FPC TO TREAT QUALITY

ADJUSTMENTS AS A RISK OF PRODUCTION, AND ITS PROMULGATION OF

  QUALITY STANDARDS WAS ACCOMPANIED BY ADEQUATE FINDINGS AS TO

  THEIR REVENUE CONSEQUENCES.  PP. 808-812. 

4. THE FPC'S RATE STRUCTURE WAS NOT HERE BEEN SHOWN TO DENY
PRODUCERS REVENUES CONSONANT WITH JUST AND REASONABLE RATES.  PP. 813
822. 

     (A) THE FPC NEED NOT PROVIDE FORMAL FINDINGS IN ABSOLUTE
DOLLAR

  AMOUNTS AS TO REVENUE AND REVENUE REQUIREMENTS; IT IS ENOUGH IF

  IT PROFFERS FINDINGS AND CONCLUSIONS SUFFICIENTLY DETAILED TO

  PERMIT REASONED EVALUATION OF THE PURPOSES AND IMPLICATIONS OF

  ITS ORDER.  P. 814. 

     (B) THE FPC PERMISSIBLY DISCOUNTED THE PRODUCERS' RELIANCE
UPON

  THE RELATIONSHIP BETWEEN GAS RESERVES AND PRODUCTION TO ESTABLISH

  THE INADEQUACY OF THE RATE STRUCTURE.  PP. 616-818. 

     (C) THE CONTENTION THAT SINCE THE AREA MAXIMUM RATES WERE

  DERIVED FROM AVERAGE COSTS THEY CANNOT, WITHOUT FURTHER

  ADJUSTMENT, PROVIDE AGGREGATE REVENUE EQUAL TO THE PRODUCERS'

  AGGREGATE REQUIREMENTS HAS NOT BEEN SUSTAINED.  PP. 818-821. 

     (D) THE FPC'S AUTHORITY TO ABROGATE EXISTING CONTRACT PRICES

  DEPENDS UPON ITS CONCLUSION THAT THEY "ADVERSELY AFFECT THE

  PUBLIC INTEREST," AND IT PROPERLY APPLIED THAT AUTHORITY IN

SETTING A MINIMUM AREA PRICE OF 9[ PER MCF AND DECLINING TO APPLY

  IT TO PRICES LESS THAN THE TWO AREA MAXIMUM RATES.  PP. 820-821. 

5.  SINCE IT HAS BEEN ALMOST EIGHT YEARS SINCE THESE PROCEEDINGS
WERE COMMENCED, AND THE REMAINING ISSUES, WHICH WERE NOT DECIDED BY THE
COURT OF APPEALS, WERE BRIEFED AND ARGUED AT LENGTH IN THIS COURT, NO
USEFUL PURPOSE WOULD BE SERVED BY FURTHER PROCEEDINGS IN THE COURT OF
APPEALS.  PP. 823-824. 

6.  THE FPC'S ORDERS REQUIRING REFUNDS OF (1) AMOUNTS CHARGED IN
EXCESS OF THE APPLICABLE AREA RATES FOR PERIODS FOLLOWING THE EFFECTIVE
DATE OF ITS ORDER AND (2) AMOUNGS COLLECTED IN EXCESS OF AREA RATES
DURING PREVIOUS PERIODS IN WHICH PRODUCERS' PRICES WERE SUBJECT TO
REFUND UNDER SEC. 4(E), WERE WITHIN ITS AUTHORITY.  IT REASONABLY
CONCLUDED THAT THE ADOPTION OF A SYSTEM OF REFUNDS CONDITIONED ON
FINDINGS AS TO AGGREGATE AREA REVENUES WOULD PROVE INEQUITABLE TO
CONSUMERS AND DIFFICULT TO ADMINISTER EFFECTIVELY.  PP. 825-828. 

375 F.2D 6 AND 35, AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THESE CASES STEM FROM PROCEEDINGS COMMENCED IN 1960 BY THE FEDERAL
POWER COMMISSION UNDER SEC. 5(A) OF THE NATURAL GAS ACT, /1B/  52 STAT.
823, 15 U.S.C. 717DA), TO DETERMINE MAXIMUM JUST AND REASONABLE RATES
FOR SALES IN INTERSTATE COMMERCE /2/  OF NATURAL GAS PRODUCED IN
PERMIAN BASIN.  /3/  24 F.P.C. 1121.  THE COMMISSION CONDUCTED EXTENDED
HEARINGS, /4/  AND IN 1965 ISSUED A DECISION THAT BOTH PRESCRIBED SUCH
RATES AND PROVIDED VARIOUS ANCILLARY REQUIREMENTS.  34 F.P.C. 159 AND
1068.  ON PEITIONS FOR REVIEW, THE COURT OF APPEALS FOR THE TENTH
CIRCUIT SUSTAINED IN PART AND SET ASIDE IN PART THE COMMISSION'S
ORDERS.  375 F.2D 6 AND 35.  BECAUSE THESE PROCEEDINGS BEGAN A NEW ERA
IN THE REGULATION OF NATURAL GAS PRODUCERS, WE GRANTED CERTIORARI AND
CONSOLIDATED THE CASES FOR BRIEFING AND EXTENDED ORAL ARGUMENT.  387
U.S. 902, 388 U.S. 906, 389 U.S. 817.  FOR REASONS THAT FOLLOW, WE
REVERSE IN PART AND AFFIRM IN PART THE JUDGMENTS OF THE COURT OF
APPEALS, AND SUSTAIN IN THEIR ENTIRETY THE COMMISSION'S ORDERS. 

        I. 

THE CIRCUMSTANCES THAT LED ULTIMATELY TO THESE PROCEEDINGS SHOULD
FIRST BE RECALLED.  THE COMMISSION'S AUTHORITY TO REGULATE INTERSTATE
SALES OF NATURAL GAS IS DERIVED ENTIRELY FROM THE NATURAL GAS ACT OF
1938.  52 STAT. 821.  THE ACT'S PROVISIONS DO NOT SPECIFICALLY EXTEND
TO PRODUCERS OR TO WELLHEAD SALES OF NATURAL GAS, /5/  AND THE
COMMISSION DECLINED UNTIL 1954 TO REGULATE SALES BY INDEPENDENT
PRODUCERS /6/ TO INTERSTATE PIPELINES.  /7/  ITS EFFORTS TO REGULATE
SUCH SALES BEGAN ONLY AFTER THIS COURT HELD IN 1954 THAT INDEPENDENT
PRODUCERS ARE "NATURAL-GAS COMPANIES)" WITHIN THE MEANING OF SEC. 2(6)
OF THE ACT.  15 U.S.C. 717A(6); PHILLIPS PETROLEUM CO. V. WISCONSIN,
347 U.S. 672.  THE COMMISSION HAS SINCE LABORED WITH OBVIOUS DIFFICULTY
TO REGULATE A DIVERSE AND GROWING INDUSTRY UNDER THE TERMS OF AN ILL
SUITED STATUTE. 

THE COMMISSION INITIALLY SOUGHT TO DETERMINE WHETHER PRODUCERS'
RATES WERE JUST AND REASONABLE WITHIN THE MEANING OF SECS. 4(A) /8/
AND 5(A) BY EXAMINATION OF EACH PRODUCER'S COSTS OF SERVICE.  /9/
ALTHOUGH THIS METHOD HAS BEEN WIDELY EMPLOYED IN VARIOUS RATE-MAKING
SITUATIONS, /10/  IT ULTIMATELY PROVED INAPPROPRIATE FOR THE REGULATION
OF INDEPENDENT PRODUCERS.  PRODUCERS OF NATURAL GAS CANNOT USEFULLY BE
CLASSED AS PUBLIC UTILITIES.  /11/  THEY ENJOY NO FRANCHISES OR
GUARANTEED AREAS OF SERVICE.  THEY ARE INTENSELY COMPETITIVE VENDORS OF
A WASTING COMMODITY THEY HAVE ACQUIRED ONLY BY COSTLY AND OFTEN
UNREWARDED SEARCH.  THEIR UNIT COSTS MAY RISE OR DECLINE WITH THE
VAGARIES OF FORTUNE.  THE VALUE OF THE PUBLIC OF THE SERVICES THEY
PERFORM IS MEASURED BY THE QUANTITY AND CHARACTER OF THE NATURAL GAS
THEY PRODUCE, AND NOT BY THE RESOURCES THEY HAVE EXPENDED IN ITS
SEARCH; THE COMMISSION AND THE CONSUMER ALIKE ARE CONCERNED PRINCIPALLY
WITH "WHAT (THE PRODUCER) GETS OUT OF THE GROUND, NOT . . . WHAT HE
PUTS INTO IT . . . . "  FPC V. HOPE NATURAL GAS CO., 320 U.S. 591, 649
(SEPARATE OPINION .  THE EXPLORATION FOR AND THE PRODUCTION OF NATURAL
GAS ARE THUS "MORE ERRATIC AND IRREGULAR AND UNPREDICTABLE IN RELATION
TO INVESTMENT THAN ANY PHASE OF ANY OTHER UTILITY BUSINESS."  ID., AT
647.  MOREOVER, THE NUMBER BOTH OF INDEPENDENT PRODUCERS AND OF
JURISDICTIONAL SALES IS LARGE, /12/  AND THE ADMINISTRATIVE BURDENS
PLACED UPON THE COMMISSION BY AN INDIVIDUAL COMPANY COSTS-OF-SERVICE
STANDARD WERE THEREFORE EXTREMELY HEAVY.  /13/ 

IN CONSEQUENCE, THE COMMISSION'S REGULATION OF PRODUCERS' SALES
BECAME INCREASINGLY LABORIOUS, UNTIL, IN 1960, IT WAS DESCRIBED AS THE
"OUTSTANDING EXAMPLE IN THE FEDERAL GOVERNMENT OF THE BREAKDOWN OF THE
ADMINISTRATIVE PROCESS."  /14/  THE COMMISSION IN 1960 ACKNOWLEDGED THE
GRAVITY OF ITS DIFFICULTIES, /15/  AND ANNOUNCED THAT IT WOULD COMMENCE
A SERIES OF PROCEEDINGS UNDER SEC. 5(A) IN WHICH IT WOULD DETERMINE
MAXIMUM PRODCUERS' RATES FOR EACH OF THE MAJOR PRODUCING AREAS.  /16
ONE MEMBER OF THE COMMISSION HAS SUBSEQUENTLY DESCRIBED THESE EFFORTS
AS "ADMITTEDLY . . . EXPERIMENTAL . . . . "  /17/  THESE CASES PLACE IN
QUESTION THE VALIDITY OF THE FIRST SUCH PROCEEDING.  /18/ 

THE PERIMETER OF THIS PROCEEDING WAS DRAWN BY THE COMMISSION IN ITS
SECOND PHILLIPS DECISION AND IN ITS STATE OF GENERAL POLICY NO. 61-1. 
THE COMMISSION IN HILLIPS ASSERTED THAT IT POSSESSES STATUTORY AUTHORTY
BOTH TO DETERMINE AND TO REQUIRE THE APPLICATION THROUGHOUT A PRODUCING
AREA OF MAXIMUM RATES FOR PRODUCERS' INTERSTATE SALES.  /19/  IT
AVERRED THAT THE ADOPTION OF AREA MAXIMUM RATES WOULD APPRECIABLY
REDUCE ITS ADMINISTRATIVE DIFFICULTIES, FACILITATE EFFECTIVE
REGULATION, AND ULTIMATELY PROVE BETTER SUITED TO THE CHARACTERISTICS
OF THE NATURAL GAS INDUSTRY.  EACH OF THESE CONCLUSIONS WAS REAFFIRMED
IN THE COMMISSION'S OPINION IN THESE PROCEEDINGS.  /20/  ITS STATEMENT
OF GENERAL POLICY TENTATIVELY DESIGNATED VARIOUS GEOGRAPHICAL AREAS AS
PRODUCING UNITS FOR PURPOSES OF RATE REGULATION; IN ADDITION, THE
COMMISSION THERE PROVIDED TWO SERIES OF AREA GUIDELINE PRICES, /21/
WHICH WERE EXPECTED TO HELP TO DETERMINE "WHETHER PROPOSED INITIAL
RATES SHOULD BE CERTIFICATED WITHOUT A PRICE CONDITION AND WHETHER
PROPOSED RATE CHANGES SHOULD BE ACCEPTED OR SUSPENDED."  /22/  THE
COMMISSION CONSOLIDATED THREE OF THE PRODUCING AREAS LISTED IN THE
STATEMENT OF GENERAL POLICY FOR PURPOSES OF THIS PROCEEDING. 

THE RATE STRUCTURE DEVISED BY THE COMMISSION FOR THE PERMIAN BASIN
INCLUDES TWO AREA MAXIMUM PRICES.  THE COMMISSION PROVIDED ONE AREA
MAXIMUM PRICE FOR NATURAL GAS PRODUCED FROM GAS WELLS AND DEDICATED TO
INTERSTATE COMMERCE AFTER JANUARY 1, 1961.  /23/  IT CREATED A SECOND,
AND LOWER, AREA MAXIMUM PRICE FOR ALL OTHER NATURAL GAS PRODUCED IN THE
PERMIAN BASIN.  THE COMMISSION REASONED THAT IT MAY EMPLOY PRICE
FUNCTIONALLY, AS A TOOL TO ENCOURAGE DISCOVERY AND PRODUCTION OF
APPROPRIATE SUPPLIES OF NATURAL GAS.  IT FOUND THAT PRICE COULD SERVE
AS A MEANINGFUL INCENTIVE TO EXPLORATION AND PRODUCTION ONLY FOR GAS
WELL GAS COMMITTED TO INTERSTATE COMMERCE SINCE 1960; THE SUPPLIES OF
ASSOCIATED AND DISSOLVED GAS, /24/  AND OF PREVIOUSLY COMMITTED
RESERVES OF GAS-WELL GAS, WERE, IN CONTRAST, FOUND TO BE RELATIVELY
UNRESPONSIVE TO VARIATIONS IN PRICE.  THE COMMISSION EXPECTED THAT ITS
ADOPTION OF SEPARATE MAXIMUM PRICES WOULD BOTH PROVIDE A SUITABLE
INCENTIVE TO EXPLORATION AND PREVENT EXCESSIVE PRODUCER PROFITS. 

THE COMMISSION DECLINED TO CALCULATE AREA RATES FROM PREVAILING
FIELD PRICES.  INSTEAD, IT DERIVED THE MAXIMUM JUST AND REASONABLE RATE
FOR NEW GAS-WELL GAS FROM COMPOSITE COST DATA, OBTAINED FROM PUBLISHED
SOURCES AND FROM PRODUERS THROUGH A SERIES OF COST QUESTIONNAIRES. 
THIS INFORMATION WAS INTENDED IN COMBINATION TO ESTABLISH THE NATIONAL
COSTS IN 1960 OF FINDING AND PRODUCING GAS-WELL GAS; IT WAS UNDERSTOOD
NOT TO REFLECT ANY VARIATIONS IN COST PECULIAR EITHER TO THE PERMIAN
BASIN OR TO PERIODS PRIOR TO 1960.  THE MAXIMUM JSUT AND REASONABLE
RATE FOR ALL OTHER GAS WAS DERIVED CHIEFLY FROM THE HISTORICAL COSTS OF
GAS-WELL GAS PRODUCED IN THE PERMIAN BASIN IN 1960; THE EMPHASIS WAS
HERE ENTIRELY LOCAL AND HISTORICAL.  THE COMMISSION BELIEVED THAT THE
UNCERTAINTIES OF JOINT COST ALLOCATION MADE IT DIFFICULT TO COMPUTE
ACCURATELY THE COST OF GAS PRODUCED IN ASSOCIATION WITH OIL.  /25/  IT
HELD, HOWEVER, THAT THE COSTS OF SUCH GAS COULD NOT BE GREATER, AND
MUST SURELY BE SMALLER, THAN THOSE INCURRED IN THE PRODUCTION OF
FLOWING GAS-WELL GAS.  IN ADDITION, THE COMMISSION STATED THAT THE
EXIGENCIES OF ADMINISTRATION DEMANDED THE SMALLEST POSSIBLE NUMBER OF
SEPARATE AREA RATES. 

EACH OF THE AREA MAXIMUM RATES ADOPTED FOR THE PERMAIN BASIN
INCLUDES A RETURN TO THE PRODUCER OF 12% ON AVERAGE PRODUCTION
INVESTMENT, CALCULATED FROM THE COMMISSION'S TWO SERIES OF COST
COMPUTATIONS.  THE COMMISSION ASSUMED FOR THIS PURPOSE THAT PRODUCTION
COMMENCES ONE YEAR AFTER INVESTMENT, THAT GAS WELLS DEPLETE UNIFORMLY,
AND THAT THEY ARE TOTALLY DEPLETED IN 20 YEARS.  THE RATE OF RETURN WAS
SELECTED AFTER STUDY OF THE RETURNS RECENTLY PERMITTED TO INTERSTATE
PIPELINES, BUT, IN ADDITION, WAS INTENDED TO TAKE FULLY INTO ACCOUNT
THE GREATER FINANCIAL RISKS OF EXPLORATION AND PRODUCTION.  THE
COMMISSION RECOGNIZED THAT PRODUCERS ARE HOSTAGES TO GOOD FORTUNE; THEY
MUST EXPECT THAT THEIR PROGRAMS OF EXPLORATION WILL FREQUENTLY PROVE
UNSUCCESSFUL, OR THAT ONLY GAS OF SUBSTANDARD QUALITY WILL BE FOUND. 

THE ALLOWANCES INCLUDED IN THE RETURN FOR THE UNCERTAINTIES OF
EXPLORATION WERE, HOWEVER, PARALLELED BY A SYSTEM OF QUALITY AND BTU
ADJUSTMENTS.  /26/  THE COMMISSION HELD THAT GAS OF LESS THAN PIPELINE
QUALITY MUST BE SOLD AT REDUCED PRICES, AND IT PROVIDED FOR THIS
PURPOSE A SYSTEM OF QUALITY STANDARDS.  THE PRICE REDUCTION APPROPRIATE
IN EACH SALE IS TO BE MEASURED BY THE COST OF THE PROCESSING NECESSARY
TO RAISE THE GAS TO PIPELINE QUALITY; THESE COSTS ARE TO BE DETERMINED
BY AGREEMENT BETWEEN THE PARTIES TO THE SALE, SUBJECT TO REVIEW AND
APPROVAL BY THE COMMISSION.  THE COMMISSION ULTIMATELY INDICATED THAT
IT WOULD ACCEPT ANY AGREEMENT WHICH REFLECTS "A GOOD FAITH EFFORT TO
APPROXIMATE THE PROCESSING COSTS INVOLVED . . . . "  34 F.P.C. 1068,
1071.  IN ADDITION, THE COMMISSION PRESCRIBED THAT GAS WITH A BTU
CONTENT OF LESS THAN 1,000 PER CUBIC FOOT MUST BE SOLD AT A PRICE
PROPORTIONATELY LOWER THAN THE APPLICABLE AREA MAXIMUM, AND THAT GAS
WITH A BTU CONTENT GREATER THAN 1,050 PER CUBIC FOOT MAY BE SOLD AT A
PRICE PROPROTIONATELY HIGHER THAN THE AREA MAXIMUM.  THE COMMISSION
ACKNOWLEDGED THAT THE AGGREGATE REVENUE CONSEQUENCES OF THESE
ADJUSTMENTS COULD NOT BE PRECISELY CALCULATED, ALTHOUGH ITS OPINION
DENYING APPLICATIONS FOR REHEARING PROVIDED ESTIMATES OF THE AVERAGE
PRICE REDUCTIONS THAT WOULD BE NECESSARY.  ID., AT 1073. 

THE COMMISSION DERIVED FROM THESE CALCULATIONS THE FOLLOWING RATES
FOR THE PERMIAN BASIN.  /27/  GAS-WELL GAS, INCLUDING ITS RESIDUE, AND
GAS-CAP GAS, DEDICATED TO INTERSTATE COMMERCE AFTER JANUARY 1, 1961,
MAY BE SOLD AT 16.5[ PER MCF (INCLUDING STATE PRODUCTION TAXES) IN
TEXAS, AND 15.5[ (EXCLUDING STATE PRODUCTION TAXES) IN NEW MEXICO. 
/28/  FLOWING GAS, INCLUDING OIL-WELL GAS AND GAS-WELL GAS DEDICATED TO
INTERSTATE COMMERCE BEFORE JANUARY 1, 1961, MAY BE SOLD AT 14.5[ PER
MCF (INCLUDING TAXES) IN TEXAS, AND 13.5[ PER MCF (EXCLUDING TAXES) IN
NEW MEXICO.  FURTHER, THE COMMISSION CREATED A MINIMUM JUST AND
REASONABLE RATE OF 9[ PER MCF FOR ALL GAS OF PIPELINE QUALITY SOLD
UNDER ITS JURISDICTION WITHIN THE PERMIAN BASIN.  IT FOUND THAT
EXISTING CONTRACTS THAT INCLUDED LOWER RATES WOULD "ADVERSELY AFFECT
THE PUBLIC INTEREST."  FPC V. SIERRA PACIFIC POWER CO., 350 U.S. 348,
355.  THE COMMISSION PERMITTED PRODUCERS TO FILE UNDER SEC. 4(D), 15
U.S.C. 717CD), /29/  FOR THE AREA MINIMUM RATE DESPITE EXISTING
CONTRACTUAL LIMITATIONS, AND WITHOUT THE CONSENT OF THE PURCHASER. 

THE COMMISSION ACKNOWLEDGED THAT AREA MAXIMUM RATES DERIVED FROM
COMPOSITE COST DATA MIGHT IN INDIVIDUAL CASES PRODUCE HARDSHIP, AND
DECLARED THAT IT WOULD, IN SUCH CASES, PROVIDE SPECIAL RELIEF.  IT
EMPHASIZED THAT EXCEPTIONS TO THE AREA RATES WOULD NOT BE READILY OR
FREQUENTLY PERMITTED, BUT DECLINED TO INDICATE IN DETAIL IN WHAT
CIRCUMSTANCES RELIEF WOULD BE GIVEN. 

THIS RATE STRUCTURE IS SUPPLEMENTED BY A SERIES OF ANCILLARY
REQUIREMENTS.  FIRST, THE COMMISSION PROVIDED VARIOUS SPECIAL
EXEMPTIONS FOR PRODUCERS WHOSE ANNUAL JURISDICTIONAL SALES THROUGHOUT
THE UNITED STATES DO NOT EXCEED 10,000,000 MCF.  THE PRICES IN SALES BY
THESE RELATIVELY SMALL PRODUCERS NEED NOT BE ADJUSTED FOR QUALITY AND
BTU DEFICIENCIES.  MOREOVER, THE COMMISSION BY SEPARATE ORDER COMMENCED
A RULE-MAKING PROCEEDING TO REDUCE THE SMALL PRODUCERS' REPORTING AND
FILING OBLIGATIONS UNDER SECS. 4 AND 7, 15 U.S.C. 717C, F. 34 F.P.C.
434. 

SECOND, THE COMMISSION IMPOSED A MORATORIUM UNTIL JANUARY 1, 1968,
UPON FILINGS UNDER SEC. 4(D) FOR PRICES IN EXCESS OF THE APPLICABLE
AREA MAXIMUM RATE.  THE COMMISSION CONCLUDED THAT SUCH A MORATORIUM WAS
IMPERATIVE IF THE ADMINISTRATIVE BENEFITS OF AN AREA PROCEEDING WERE TO
BE PRESERVED.  FURTHER, IT PERMANENTLY PROHIBITED THE USE OF INDEFINITE
ESCALATION CLAUSES TO INCREASE PREVAILING CONTRACT PRICES ABOVE THE
APPLICABLE AREA MAXIMUM RATE.  /30/ 

FINALLY, THE COMMISSION ANNOUNCED THAT, BY FURTHER ORDER, IT WOULD
REQUIRE REFUNDS OF THE DIFFERENCE BETWEEN AMOUNTS THAT INDIVIDUAL
PRODUCERS HAD ACTUALLY COLLECTED IN PERIODS SUBJECT TO REFUND, AND THE
AMOUNTS THAT WOULD HAVE BEEN PERMISSIBLE UNDER THE APPLICABLE AREA
RATE, INCLUDING ANY NECESSARY QUALITY ADJUSTMENTS.  /31/  SMALL
PRODUCERS, ALTHOUGH OBLIGED TO MAKE REFUNDS, ARE NOT REQUIRED TO TAKE
INTO PRICE REDUCTIONS FOR QUALITY DEFICIENCIES, UNLESS THEY WISH TO
TAKE ADVANTAGE OF UPWARD ADJUSTMENTS IN PRICE BECAUSE OF HIGH BTU
CONTENT.  THE COMMISSION REJECTED THE EXAMINER'S CONCLUSION THAT
REFUNDS WERE APPROPRIATE ONLY IF THE AGGREGATE AREA REVENUE ACTUALLY
COLLECTED EXCEEDS THE AGGREGATE AREA REVENUE PERMISSIBLE UNDER THE
APPLICABLE AREA RATES.  IT HELD THAT SUCH A FORMULA WOULD PROVE BOTH
INEQUITABLE TO PURCHASERS AND DIFFICULT FOR THE COMMISSION TO
ADMINISTER EFFECTIVELY.     ON PETITIONS FOR REVIEW, THE COURT OF
APPEALS FOR THE TENTH CIRCUIT HELD THAT THE COMMISSION HAD AUTHORITY
UNDER THE NATURAL GAS ACT TO IMPOSE MAXIMUM AREA RATES UPON PRODUCERS'
JURISDICTIONAL SALES.  IT SUSTAINED, BUT STAYED ENFORCEMENT OF, THE
COMMISSION'S MORATORIUM UPON FILINGS UNDER SEC. 4(D) IN EXCESS OF THE
APPLICABLE AREA MAXIMUM RATE.  IT APPROVED BOTH THE COMMISSIONS' TWO
PRICE SYSTEM AND ITS EXEMPTIONS FOR SMALL PRODUCERS.  NONETHELESS, THE
COURT CONCLUDED THAT THE COMMISSION FAILED TO SATISFY THE REQUIREMENTS
DEVISED BY THIS COURT IN FPC V. HOPE NATURAL GAS CO., SUPRA.  IT HELD
THAT THE COMMISSION HAD NOT PROPERLY CALCULATED THE FINANCIAL
CONSEQUENCES OF THE QUALITY AND BTU ADJUSTMENTS, HAD NOT MADE ESSENTIAL
FINDINGS AS TO AGGREGATE REVENUE, AND HAD NOT INDICATED WITH
APPROPRIATE PRECISION THE CIRCUMSTANCES IN WHICH RELIEF FROM THE AREA
RATES MAY BE OBTAINED BY INDIVIDUAL PRODUCERS.  375 F.2D Y. ON
REHEARING, THE COURT ALSO HELD THAT THE COMMISSION'S TREATMENT OF
REFUNDS WAS ERRONEOUS; IT CONCLUDED THAT REFUNDS WERE PERMISSIBLE ONLY
IF AGGREGATE ACTUAL AREA REVENUES HAVE EXCEEDED AGGREGATE PERMISSIBLE
AREA REVENUES, AND ONLY TO THE AMOUNT OF THE EXCESS, APPORTIONED ON
"SOME EQUITABLE CONTRACT-BY-CONTRACT BASIS."  THE COURT OF APPEALS
ORDERED THE CASES REMANDED TO THE COMMISSION FOR FURTHER PROCEEDINGS
CONSISTENT WITH ITS OPINIONS.  375 F.2D 35. 

        II. 

THE PARTIES BEFORE THIS COURT HAVE TOGETHER ELECTED TO PLACE IN
QUESTION VIRTUALLY EVERY DETAIL OF THE COMMISSION'S LENGTH
PROCEEDINGS.  /32/  IT MUST BE SAID AT THE OUTSET THAT, IN ASSESSING
THESE DISPARATE CONTENTIONS, THIS COURT'S AUTHORITY IS ESSENTIALLY
NARROW AND CIRCUMSCRIBED. 

THAT THE "FINDING OF THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY
SUBSTANITAL EVIDENCE, SHALL BE CONCLUSIVE."  MORE IMPORTANT, WE HAVE
HERETOFORE EMPHASIZED THAT CONGRESS HAS ENTRUSTED THE REGULATION OF THE
NATURAL GAS INDUSTRY TO THE INFORMED JUDGMENT OF THE COMMISSION, AND
NOT TO THE PREFERENCES OF REVIEWING COURTS.  A PRESUMPTION OF VALIDITY
THEREFORE ATTACHES TO EACH EXERCISE OF THE COMMISSION'S EXPERTISE, AND
THOSE WHO WOULD OVERTURN THE COMMISSION'S JUDGMENT UNDERTAKE "THE HEAVY
BURDEN OF MAKING A CONVINCING SHOWING THAT IT IS INVALID BECAUSE IT IS
UNJUST AND UNREASONABLE IN ITS CONSEQUENCES."  FPC V. HOPE NATURAL GAS
CO., SUPRA, AT 602.  WE ARE NOT OBLIGED TO EXAMINE EACH DETAIL OF THE
COMMISSION'S DECISION; IF THE "TOTAL EFFECT OF THE RATE ORDER CANNOT BE
SAID TO BE UNJUST AND UNREASONABLE, JUDICIAL INQUIRY UNDER THE ACT IS
AT AN END."  IBID. 

MOREOVER, THIS COURT HAS OFTEN ACKNOWLEDGED THAT THE COMMISSION IS
NOT REQUIRED BY THE CONSTITUTION OR THE NATURAL GAS ACT TO ADOPT AS
JUST AND REASONABLE ANY PARTICULAR RATE LEVEL; RATHER, COURTS ARE
WITHOUT AUTHORITY TO SET ASIDE ANY RATE SELECTED BY THE COMMISSION
WHICH IS WITHIN A "ZONE OF REASONABLENESS."  FPC V. NATURAL GAS
PIPELINE CO., 315 U.S. 575, 585.  NO OTHER RULE WOULD BE CONSONANT WITH
THE BROAD RESPONSIBILITIES GIVEN TO THE COMMISSION BY CONGRESS; IT MUST
BE FREE, WITHIN THE LIMITATIONS IMPOSED BY PERTINENT CONSTITUTIONAL AND
STATUTORY COMMANDS, TO DEVISE METHODS OF REGULATION CAPABLE OF
EQUITABLE RECONCILING DIVERSE AND CONFLICTING INTERESTS.  IT IS ON
THESE PREMISES THAT WE PROCEED TO ASSESS THE COMMISSION'S ORDERS. 

        III. 

THE ISSUES IN CONTROVERSY MAY CONVENIENTLY BE DIVIDED INTO FOUR
CATEGORIES.  IN THE FIRST ARE QUESTIONS OF THE COMMISSION'S STATUTORY
AND CONSTITUTIONAL AUTHORITY TO EMPLOY AREA REGULATION AND TO IMPOSE
VARIOUS ANCILLARY REQUIREMENTS.  IN THE SECOND ARE QUESTIONS OF THE
VALIDITY OF THE RATE STRUCTURE ADOPTED BY THE COMMISSION FOR NATURAL
GAS PRODUCED IN THE PERMIAN BASIN.  THE THIRD INCLUDES QUESTIONS OF THE
ACCURACY OF THE COST AND OTHER DATA FROM WHICH THE COMMISSION DERIVED
THE TWO AREA MAXIMUM PRICES.  IN THE FOURTH ARE QUESTIONS OF THE
VALIDITY OF THE REFUND OBLIGATIONS IMPOSED BY THE COMMISSION. 

WE TURN FIRST TO QUESTIONS OF THE COMMISSION'S CONSTITUTIONAL AND
STATUTORY AUTHORITY TO ADOPT A SYSTEM OF AREA REGULATION AND TO IMPOSE
VARIOUS SUPPLEMENTARY REQUIREMENTS.  THE MOST FUNDAMENTAL OF THESE IS
WHETHER THE COMMISSION MAY, CONSISTENTLY WITH THE CONSTITUTION AND THE
NATURAL GAS ACT, REGULATE PRODUCERS' INTERSTATE SALES BY THE
PRESCRIPTION OF MAXIMUM AREA RATES, RATHER THAN BY PROCEEDINGS
CONDUCTED ON AN INDIVIDUAL PRODUCER BASIS.  THIS QUESTION WAS LEFT
UNANSWERED IN WISCONSIN V. FPC, 373 U.S. 294.  /3/  ITS SOLUTION
REQUIRES CONSIDERATION OF A SERIES OF INTERRELATED PROBLEMS. 

IT IS PLAIN THAT THE CONSTITUTION DOES NOT FORBID THE IMPOSITION, IN
APPROPRIATE CIRCUMSTANCES, OF MAXIMUM PRICES UPON COMMERCIAL AND OTHER
ACTIVITIES.  A LEGISLATIVE POWER TO CREATE PRICE CEILINGS HAS, IN
"COUNTRIES WHERE THE COMMON LAW PREVAILS," BEEN "CUSTOMARY FROM TIME
IMMEMORIAL . . . . "  MUNN V. ILLINOIS, 94 U.S. 113, 133.  ITS EXERCISE
HAS REGULARLY BEEN APPROVED BY THIS COURT.  SEE, E.G., TAGG BROS. V.
UNITED STATES, 280 U.S. 420; BOWLES V. WILLINGHMA, 321 U.S. 503.  NO
MORE DOES THE CONSTITUTION PROHIBIT THE DETERMINATION OF RATES THROUGH
GROUP OR CLASS PROCEEDINGS.  THIS COURT HAS REPEATEDLY RECOGNIZED THAT
LEGISLATURES AND ADMINISTRATIVE AGENCIES MAY CALCULATE RATES FOR A
REGULATED CLASS WITHOUT FIRST EVALUATING THE SEPARATE FINANCIAL
POSITION OF EACH MEMBER OF THE CLASS; IT HAS BEEN THOUGHT TO BE
SUFFICIENT IF THE AGENCY HAS BEFORE IT REPRESENTATIVE EVIDENCE, AMPLE
IN QUANTITY TO MEASURE WITH APPROPRIATE PRECISION THE FINANCIAL AND
OTHER REQUIREMENTS OF THE PERTINENT PARTIES.  SEE TAGG BROS. V. UNITED
STATES, SUPRA; ACKER V. UNITED STATES, 298 U.S. 426; UNITED STATES V.
CORRICK, 298 U.S. 435.  COMPARE NEW ENGLAND DIVISIONS CASE, 261 U.S.
184, 196-199; UNITED STATES V. ABILENE & S.R. CO., 265 U.S. 274, 290
291; NEW YORK V. UNITED STATES, 331 U.S. 284; CHICAGO & N.W.R. CO. V.
A., T. & S.F.R. CO., 387 U.S. 326, 341. 

NO CONSTITUTIONAL OBJECTION ARISES FROM THE IMPOSITION OF MAXIMUM
PRICES MERELY BECAUSE "HIGH COST OPERATORS MAY BE MORE SERIOUSLY
AFFECTED . . . THAN OTHERS, " BOWLES V. WILLINGHAM, SUPRA, AT 518, OR
BECAUSE THE VALUE OF REGULATED PROPERTY IS REDUCED AS A CONSEQUENCE OF
REGULATION.  FPC V. HOPE NATURAL GAS CO., SUPRA, AT 601.  REGULATION
MAY, CONSISTENTLY WITH THE CONSTITUTION, LIMIT STRINGENTLY THE RETURN
RECOVERED ON INVESTMENT, FOR INVESTORS' INTERESTS PROVIDE ONLY ONE OF
THE VARIABLES IN THE CONSTITUTIONAL CALCULUS OF REASONABLENESS. 
COVINGTON & LEXINGTON TURNPIKE CO. V. SANDFORD, 164 U.S. 578, 596. 

IT IS, HOWEVER, PLAIN THAT THE "POWER TO REGULATE IS NOT A POWER TO
DESTROY," STONE V. FARMERS' LOAN & TRUST CO., 116 U.S. 307, 331;
COVINGTON & LEXINGTON TURNPIKE CO. V. SANDFORD, SUPRA, AT 593; AND THAT
MAXIMUM RATES MUST BE CALCULATED FOR A REGULATED CLASS IN CONFORMITY
WITH THE PERTINENT CONSTITUTIONAL LIMITATIONS.  PRICE CONTROL IS
"UNCONSTITUTIONAL . . . IF ARBITRARY, DISCRIMINATORY, OR DEMONSTRABLY
IRRELEVANT TO THE POLICY THE LEGISLATURE IS FREE TO ADOPT . . . . "
NEBBIA V. NEW YORK, 291 U.S. 502, 539.  NONETHELESS, THE JUST AND
REASONABLE STANDARD OF THE NATURAL GAS ACT "COINCIDES" WITH THE
APPLICABLE CONSTITUTIONAL STANDARDS, FPC V. NATURAL GAS PIPELINE CO.,
SUPRA, AT 386, AND ANY RATE SELECTED BY THE COMMISSION FROM THE BROAD
ZONE OF REASONABLENESS PERMITTED BY THE ACT CANNOT PROPERLY BE ATTACKED
AS CONFISCATORY.  ACCORDINGLY, THERE CAN BE NO CONSTITUTIONAL OBJECTION
IF THE COMMISSION, IN ITS CALCULATION OF RATES, TAKES FULLY INTO
ACCOUNT THE VARIOUS INTERESTS WHICH CONGRESS HAS REQUIRED IT TO
RECONCILE.  WE DO NOT SUGGEST THAT MAXIMUM RATES COMPUTED FOR A GROUP
OR GEOGRAPHICAL AREA CAN NEVER BE CONFISCATORY; WE HOLD ONLY THAT ANY
SUCH RATES, DETERMINED IN CONFORMITY WITH THE NATURAL GAS ACT, AND
INTENDED TO "BALANCE) . . . THE INVESTOR AND THE CONSUMER INTERESTS,"
ARE CONSTITUTIONALLY PERMISSIBLE.  FPC V. HOPE NATURAL GAS CO., SUPRA,
AT 603. 

ONE ADDITIONAL CONSTITUTIONAL CONSIDERATION REMAINS.  THE PRODUCERS
HAVE URGED, AND CERTAIN OF THIS COURT'S DECISIONS MIGHT BE UNDERSTOOD
TO HAVE SUGGESTED, THAT IF MAXIMUM RATES ARE JOINTLY DETERMINED FOR A
GROUP OR AREA, THE MEMBERS OF THE REGULATED CLASS MUST, UNDER THE
CONSTITUTION, BE PROFFERED OPPORTUNITIES EITHER TO WITHDRAW FROM THE
REGULATED ACTIVITY OR TO SEEK SPECIAL RELIEF FROM THE GROUP RATES. 
/34/  WE NEED NOT DETERMINE WHETHER THIS IS IN EVERY SITUATION
CONSTITUTIONALLY IMPERATIVE, FOR SUCH ARRANGEMENTS HAVE HERE BEEN
PROVIDED BY THE COMMISSION, AND WE CANNOT NOW HOLD THEM INADEQUATE. 

THE COMMISSION DECLARED THAT A PRODUCER SHOULD BE PERMITTED
"APPROPRIATE RELIEF" IF IT ESTABLISHES THAT IT "OUT-OF-POCKET EXPENSES
IN CONNECTION WITH THE OPERATION OF A PARTICULAR WELL" EXCEED ITS
REVENUE FROM THE WELL UNDER THE APPLICABLE AREA PRICE.  34 F.P.C., AT
226.  IT DID NOT INDICATE WHICH OPERATING EXPENSES WOULD BE PERTINENT
FOR THESE CALCULATIONS.  /35/  THE COMMISSION ACKNOWLEDGED THAT THERE
MIGHT BE OTHER CIRCUMSTANCES IN WHICH RELIEF SHOULD BE GIVEN, BUT
DECLINED TO ENUMERATE THEM.  IT EMPHASIZED, HOWEVER, THAT A PRODUCER'S
INABILITY TO RECOVER EITHER ITS UNSUCCESSFUL EXPLORATION COSTS OR THE
FULL 12% RETURN ON ITS PRODUCTION INVESTMENT WOULD NOT, WITHOUT MORE,
WARRANT RELIEF.  IT ANNOUNCED THAT IN MANY SITUATIONS IT WOULD
AUTHORIZE ABANDONMENT UNDER SEC. 7(B), 15 U.S.C. 717FB), /36/  RATHER
THAN AN EXCEPTION TO THE AREA MAXIMUM PRICE.  FINALLY, THE COMMISSION
HELD THAT THE BURDEN WOULD BE UPON THE PRODUCER TO ESTABLISH THE
PROPRIETY OF AN EXCEPTION, AND THAT IT THEREFORE WOULD NOT STAY
ENFORCEMENT OF THE AREA RATES PENDING DISPOSITION OF INDIVIDUAL
PETITIONS FOR SPECIAL RELIEF. 

THE COURT OF APPEALS HELD THAT THESE ARRANGEMENTS WERE INADEQUATE. 
IT FOUND THE COMMISSION'S DESCRIPTION OF ITS INTENTIONS VAGUE.  THE
COURT WOULD REQUIRE THE COMMISSION TO PROVIDE "GUIDELINES WHICH IF
FOLLOWED BY AN AGGRIEVED PRODUCER WILL PERMIT IT TO BE HEARD PROMPTLY
AND TO HAVE A STAY OF THE GENERAL RATE ORDER UNTIL ITS CLAIM FOR
EXEMPTION IS DECIDED."  375 F.2D, AT 30.  WE CANNOT AGREE.  IT WOULD
DOUBTLESS BE DESIRABLE IF THE COMMISSION PROVIDED, AS QUICKLY AS MAY BE
PRUDENT, A MORE PRECISE SUMMARY OF ITS CONDITIONS FOR SPECIAL RELIEF,
BUT IT WAS NOT OBLIGED TO DELAY AREA REGULATION UNTIL SUCH GUIDELINES
COULD BE PROPERLY DRAWN.  THE COMMISSION QUITE REASONABLY BELIEVED THAT
THE TERMS OF ANY EXCEPTIONAL RELIEF SHOULD BE DEVELOPED AS ITS
EXPERIENCE WITH AREA REGULATION LENGTHENS.  MOREOVER, AREA REGULATION
OF PRODUCER PRICES IS AVOWEDLY STILL EXPERIMENTAL IN ITS TERMS AND
UNCERTAIN IN ITS ULTIMATE CONSEQUENCES; IT IS ENTIRELY POSSIBLE THAT
THE COMMISSION MAY LATER FIND ITS AREA REATE STRUCTURE FOR THE PERMIAN
BASIN REQUIRES SIGNIFICANT MODIFICATION.  /37/  WE CANNOT NOT HOLD
THAT, IN THESE CIRCUMSTANCES, THE COMMISSION'S BROARD GUARANTEES OF
SPECIAL RELIEF WERE INADEQUATE OR EXCESSIVELY IMPRECISE. 

NOR IS THERE REASON NOW TO SUPPOSE THAT PETITIONS FOR RELIEF WILL
NOT BE EXPEDITIOUSLY EVALUATED; FOR THE COMMISSION HAS GIVEN ASSURANCE
THAT THEY WILL BE "DISPOSED OF AS PROMPTLY AS POSSIBLE."  /38/  IF IT
SUBSEQUENTLY APPEARS THAT THE COMMISION'S PROVISIONS FOR SPECIAL RELIEF
ARE FOR ANY REASON IMPERMISSIBLY DILATORY, THIS QUESTION MAY THEN BE
RECONSIDERED. 

FURTHERMORE, IT IS PERTINENT THAT THE COMMISSION MAY SUPPLEMENT ITS
PROVISIONS FOR SPECIAL RELIEF BY PERMITTING ABANDONMENT OF UNPROFITABLE
ACTIVITIES.  THE PRODUCERS URGE THAT THIS SOURCE OF RELIEF MUST BE
DISREGARDED, SINCE IT IS ENTIRELY CONDITIONAL UPON THE COMMISSION'S
ASSENT.  IT IS ENOUGH FOR PRESENT PURPOSES THAT THE COMMISSION HAS IN
OTHER CIRCUMSTANCES ALLOWED ABANDONMENT, /39/  AND THAT IT HAS
INDICATED THAT IT WILL, IN APPROPRIATE CASES, AUTHORIZE IT HERE. 
INDEED, THE COMMISSION HAS ALREADY ACKNOWLEDGED THAT ONLY IN
"EXCEPTIONAL SITUATIONS" WOULD THE ABANDONMENT OF UNPROFITABLE
FACILITIES PROVE DETRIMENTAL TO CONSUMERS, AND THUS IMPERMISSIBLE UNDER
SEC. 7(B).  34 F.P.C., AT 226. 

FINALLY, WE CANNOT AGREE THAT THE COMMISSION ABUSED ITS DISCRETION
BY ITS REFUSAL TO STAY, PRO TANTO, ENFORCEMENT OF THE AREA REATES
PENDING DISPOSITION OF PRODUCERS' PETITIONS FOR SPECIAL RELIEF.  THE
COURT OF APPEALS WOULD EVIDENTLY REQUIRE THE COMMISSION AUTOMATICALLY
TO ISSUE SUCH A STAY EACH TIME A PRODUCER SEEKS RELIEF.  THIS IS
PLAINLY INCONSISTENT WITH THE ESTABLISHED RULE THAT A PARTY IS NOT
ORDINARILY GRANTED A STAY OF AN ADMINISTRATIVE ORDER WITHOUT AN
APPROPRIATE SHOWING OF IRREPARABLE INJURY.  SEE, E.G., VIRGINIA
PETROLEUM JOBBERS ASSN. V. FPC, 259 F.2D 921, 925.  MOREOVER, THE
ISSUANCE OF A STAY OF AN ADMINISTRATIVE ORDER PENDING DISPOSITION BY
THE COMMISSION OF A MOTION TO "MODIFY OR SET ASIDE, IN WHOLE OR IN
PART" THE ORDER IS A MATTER COMMITTED BY THE NATURAL GAS ACT TO THE
COMMISION'S DISCRETION.  SECS. 19(A), (C), 15 U.S.C. 717RA), (C).  WE
HAVE NO REASON NOW TO BELIEVE THAT IT WOULD IN ALL CASES PROVE AN ABUSE
OF DISCRETION FOR THE COMMISSION TO DENY A STAY OF THE AREA RATE
ORDER.  THERE MIGHT BE MANY SITUATIONS IN WHICH A STAY WOULD BE
INAPPROPRIATE; AT A MINIMUM, THE COMMISSION IS ENTITLED TO GIVE CAREFUL
CONSIDERATION TO THE SUBSTANTIALITY OF THE CLAIM FOR RELIEF, AND TO THE
CONSEQUENCES OF ANY DELAY IN THE FULL ADMINISTRATION OF THE AREA RATE
STRUCTURE.  WE THEREFORE DECLINE TO BIND THE COMMISSION TO ANY
INFLEXIBLE OBLIGATION; WE SHALL ASSUME THAT IT WILL, IN SITUATIONS IN
WHICH STAYS PROVE APPROPRIATE, PROPERLY EXERCISE ITS STATUTORY
AUTHORITY. 

FOR THE REASONS INDICATED, WE FIND NO CONSTITUTIONAL INFIRMITY IN
THE COMMISSION'S ADOPTION OF AN AREA MAXIMUM RATE SYSTEM FOR THE
PERMIAN BASIN. 

WE CONSIDER NEXT THE CLAIMS THAT THE COMMISSION HAS EXCEEDED THE
AUTHORITY GIVEN IT BY THE NATURAL GAS ACT.  THE FIRST AND MOST
IMPORTANT OF THESE QUESTIONS IS WHETHER, DESPITE THE ABSENCE OF ANY
CONSTITUTIONAL DEFICIENCY, AREA REGULATION IS INCONSISTENT WITH THE
TERMS OF THE ACT.  THE PRODUCERS THAT SEEK REVERSAL OF THE JUDGMENTS
BELOW OFFER THREE PRINCIPAL CONTENTIONS ON THIS QUESTION.  FIRST, THEY
EMPHASIZE THAT THE ACT UNIFORMLY EMPLOYS THE SINGULAR TO DESCRIBE THOSE
SUBJECT TO ITS REQUIREMENTS; SEC. 4(A), FOR EXAMPLE, PROVIDES THAT
RATES RECEIVED BY "ANY NATURAL-GAS COMPANY" MUST BE JUST AND
REASONABLE.  IT IS URGED THAT THE DRAFTSMAN'S CHOICE OF NUMBER
INDICATES THAT EACH PRODUCER'S RATES MUST BE INDIVIDUALLY COMPUTED FROM
EVIDENCE OF ITS OWN FINANCIAL POSITION.  WE CANNOT INFER SO MUCH FROM
SO LITTLE; WE SEE NO MORE IN THE DRAFTSMAN'S CHOICE OF PHRASE THAN THAT
THE ACT'S OBLIGATIONS ARE IMPOSED SEVERALLY UPON EACH PRODUCER. 
RELIANCE IN NEXT PLACED UPON ONE SENTENCE IN THE REPORT OF THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, WHICH IN 1937 RECOMMENDED
PASSAGE OF THE NATURAL GAS ACT.  THE COMMITTEE REMARKED THAT THE "BILL
PROVIDES FOR REGULATION ALONG RECOGNIZED AND MORE OR LESS STANDARIZED
LINES."  H.R. REP. NO. 709, 75TH CONG., 1ST SESS., 3.  IT ADDED THAT
THE BILL'S PROVISIONS INCLUDED NOTHING "NOVEL."  IBID.  WE FIND THESE
STATEMENTS ENTIRELY INCONCLUSIVE, PARTICULARLY SINCE, AS THE COMMITTEE
DOUBTLESS WAS AWARE, REGULATION BY GROUP OR CLASS WAS A RECOGNIZED
ADMINISTRATIVE METHOD EVEN IN 1937.  COMPARE TAGG BROS. V. UNITED
STATES, SUPRA; NEW ENGLAND DIVISIONS CASE, SUPRA.  SEE ALSO H.R. REP.
NO. 77, 67TH CONG., 1ST SESS., 10-11; H.R. REP. NO. 456, 66TH CONG.,
1ST SESS., 29-30. 

FINALLY, THE PRODUCERS URGE THAT TWO OPINIONS OF THIS COURT
ESTABLISH THE INCONSISTENCY OF AREA REGULATION WITH THE NATURAL GAS
ACT.  IT IS ASSERTED THAT THE FAILURE OF A MAJORITY OF THE COURT TO
ADOPT THE REASONING OF MR. JUSTICE JACKSON'S SEPARATE OPINION IN FPC V.
HOPE NATURAL GAS CO., SUPRA, IMPLIEDLY REJECTED THE SYSTEM OF
REGULATION NOW SELECTED BY THE COMMISSION.  WE FIND THIS WITHOUT
FORCE.  THE COURT IN HOPE EMPHASIZED THAT WE MAY NOT IMPOSE METHODS OF
REGULATION UPON THE DISCRETION OF THE COMMISSION; FOR PURPOSES OF
JUDICIAL REVIEW, THE VALIDITY OF A RATE ORDER IS DETERMINED BY "THE
RESULT REACHED NOT THE METHOD EMPLOYED."  320 U.S.,AT 602; SEE ALSO FPC
V. NATURAL GAS PIPELINE CO., SUPRA, AT 587.  THE COURT THERE DID NOT
REJECT AREA REGULATION; IT REPUDIATED INSTEAD THE SUGGESTION THAT
COURTS MAY PROPERLY REQUIRE THE COMMISSION TO EMPLOY ANY PARTICULAR
REGULATORY FORMULA OR COMBINATION OF FORMULAE. 

THE PRODUCERS NEXT RELY UPON A DICTUM IN THE OPINION OF THE COURT IN
BOWLES V. WILLINGHAM, SUPRA.  THE COURT REMARKED THAT "UNDER OTHER
PRICE-FIXING STATUTES SUCH AS THE NATURAL GAS ACT OF 1938 . . .
CONGRESS HAS PROVIDED FOR THE FIXING OF RATES WHICH ARE JUST AND
REASONABLE IN THEIR APPLICATION TO PARTICULAR PERSONS OR COMPANIES." 
321 U.S.,AT 517.  THE DICTUM IS IMPRECISE, BUT EVEN IF IT WERE NOT, WE
COULD NOT AGREE THAT IT CAN NOW BE CONTROLLING.  THE CONSTRUCTION OF
THE NATURAL GAS ACT WAS NOT EVEN OBLIQUELY AT ISSUE IN BOWLES, AND THIS
COURT DOES NOT DECIDE IMPORTANT QUESTIONS OF LAW BY CURSORY DICTA
INSERTED IN UNRELATED CASES.  WHATEVER THE DICTUM'S MEANING, WE DO NOT
REGARD IT AS DECISIVE HERE.  COMPARE WISCONSIN V. FPC, 373 U.S. 294,
310. 

THERE ARE, MOREOVER, OTHER FACTORS THAT INDICATE PERSUASIVELY THAT
THE NATURAL GAS ACT SHOULD BE UNDERSTOOD TO PERMIT AREA REGULATION. 
THE ACT WAS INTENDED TO CREATE, THROUGH THE EXERCISE OF THE NATIONAL
POWER OVER INTERSTATE COMMERCE, "AN AGENCY FOR REGULATING THE WHOLESALE
DISTRIBUTION TO PUBLIC SERVICE COMPANIES OF NATURAL GAS MOVING
INTERSTATE"; ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S. 498, 506;
IT WAS FOR THIS PURPOSE EXPECTED TO "BALANCE) . . . THE INVESTOR AND
THE CONSUMER INTERESTS."  FPC V. HOPE NATURAL GAS CO., SUPRA, AT 603. 
THIS COURT HAS REPEATEDLY HELD THAT THE WIDTH OF ADMINISTRATIVE
AUTHORITY MUST BE MEASURED IN PART BY THE PURPOSES FOR WHICH IT WAS
CONFERRED; SEE, E.G., PIEDMONT & NORTHERN R. CO. V. COMM'N, 286 U.S.
299; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 193-194; NATIONAL
BROADCASTING CO. V. UNITED STATES, 344 U.S. 298, 311.  SURELY THE
COMMISSION'S BROAD RESPONSIBILITIES THEREFORE DEMAND A GENEROUS
CONSTRUCTION OF ITS STATUTORY AUTHORITY.  /40/ 

SUCH A CONSTRUCTION IS CONSISTENT WITH THE VIEW OF ADMINISTRATIVE
RATE MAKING UNIFORMLY TAKEN BY THIS COURT.  THE COURT HAS SAID THAT THE
"LEGISLATIVE DISCRETION IMPLIED IN THE RATE MAKING POWER NECESSARILY
EXTENDS TO THE ENTIRE LEGISLATIVE PROCESS, EMBRACING THE METHOD USED IN
REACHING THE LEGISLATIVE DETERMINATION AS WELL AS THAT DETERMINATION
ITSELF."  LOS ANGELES GAS CO. V. RAILROAD COMM'N, 289 U.S. 287, 304. 
AND SEE SAN DIEGO LAND & TOWN CO. V. JASPER, 189 U.S. 439, 446.  IT
FOLLOWS THAT RATE-MAKING AGENCIES ARE NOT BOUND TO THE SERVICE OF ANY
SINGLE REGULATORY FORMULA; THEY ARE PERMITTED, UNLESS THEIR STATUTORY
AUTHORITY OTHERWISE PLAINLY INDICATES, "TO MAKE THE PRAGMATIC
ADJUSTMENTS WHICH MAY BE CALLED FOR BY PARTICULAR CIRCUMSTANCES."  FPC
V. NATURAL GAS PIPELINE CO., SUPRA, AT 586. 

WE ARE UNWILLING, IN THE CIRCUMSTANCES NOW PRESENTED, TO DEPART FROM
THESE PRINCIPLES.  THE COMMISSION HAS ASSERTED, AND THE HISTORY OF
PRODUCER REGULATION HAS CONFIRMED, THAT THE ULTIMATE ACHIEVEMENT OF THE
COMMISSION'S REGULATORY PURPOSES MAY EASILY DEPEND UPON THE CONTRIVANCE
OF MORE EXPEDITIOUS ADMINISTRATIVE METHODS.  THE COMMISSION BELIEVES
THAT THE ELEMENTS OF SUCH METHODS MAY BE FOUND IN AREA PROCEEDINGS. 
"(CONSIDERATIONS OF FEASIBILITY AND PRACTICALITY ARE CERTAINLY GERMANE"
TO THE ISSUES BEFORE US.  BOWLES V. WILLINGHAM, SUPRA, AT 517.  WE
CANNOT, IN THESE CIRCUMSTANCES, CONCLUDE THAT CONGRESS HAS GIVEN
AUTHORITY INADEQUATE TO ACHIEVE WITH REASONABLE EFFECTIVENESS THE
PURPOSES FOR WHICH IT HAS ACTED. 

WE MUST NOW CONSIDER WHETHER THE COMMISSION EXCEEDED ITS STATUTORY
AUTHORITY BY THE PROMULGATION OF VARIOUS SUPPLEMENTARY REQUIREMENTS. 
THE FIRST OF THESE IS ITS IMPOSITION OF A MORATORIUM UNTIL JANUARY 1,
1968, UPON FILINGS UNDER SEC. 4(D) FOR PRICES IN EXCESS OF THE
APPLICABLE AREA MAXIMUM RATE.  ALTHOUGH THE PERIOD FOR WHICH THE
MORATORIUM WAS TO BE EFFECTIVE HAS EXPIRED, THE ORDER IS NOT WITHOUT
CONTINUING EFFECT.  THE COURT OF APPEALS STAYED ENFORCEMENT OF THE
MORATORIUM UNTIL FINAL DISPOSITION OF THE PETITIONS FOR REVIEW, AND A
NUMBER OF RATE INCREASES HAVE THEREFORE BECOME EFFECTIVE SUBJECT TO
INVALIDATION AND REFUND IF THE MORATORIUM ORDER IS NOW UPHELD.  SEE
BRIEF FOR THE FEDERAL POWER COMMISSION 69, N. 44. 

THE VALIDITY OF THE MORATORIUM ORDER TURNS PRINCIPALLY UPON
CONSTRUCTION OF SECS. 4 AND 5 OF THE ACT.  SECTION 4(D) /41/  PROVIDES
THAT NO MODIFICATION IN EXISTING RATE SCHEDULES MAY BE MADE BY A
NATURAL GAS COMPANY EXCEPT AFTER 30 DAYS' NOTICE TO THE COMMISSION. 
WHEN THE COMMISSION RECEIVES SUCH NOTICE, IT IS PERMITTED BY SEC. 4(E),
/42/  UPON COMPLAINT OR ON ITS OWN MOTION, TO SUSPEND THE PROPOSED RATE
SCHEDULE FOR A PERIOD NOT TO EXCEED FIVE MONTHS.  THE COMMISSION IS TO
EMPLOY THE PERIOD OF SUSPENSION TO CONDUCT HEARINGS UPON THE LAWFULNESS
OF THE PROPOSED RATES.  IF AT THE END OF THE SUSPENSION PERIOD
APPROPRIATE ORDERS HAVE NOT BEEN ISSUED, THE PROPOSED RATE SCHEDULE
BECOMES EFFECTIVE, SUBJECT ONLY TO A REFUND OBLIGATION.  IN CONTRAST,
SEC. 5(A) /43/  PERMITS THE COMMISSION, UPON COMPLAINT FROM A PUBLIC
AGENCY OR A GAS DISTRIBUTING COMPANY, OR ON ITS OWN MOTION, TO CONDUCT
PROCEEDINGS TO DETERMINE WHETHER EXISTING RATES ARE JUST AND
REASONABLE, AND TO PRESCRIBE RATES "TO BE THEREAFTER OBSERVED AND IN
FORCE . . . . "  THESE INVESTIGATORY POWERS ARE NOT CONDITIONAL UPON
THE FILING BY A NATURAL GAS COMPANY OF ANY PROPOSED CHANGE IN EXISTING
RATES. 

CERTAIN OF THE PRODUCERS URGE THAT SECS. 4 AND 5 MUST IN COMBINATION
BE UNDERSTOOD TO PRECLUDE MORATORIA UPON FILINGS UNDER SEC. 4(D).  THEY
ASSERT THAT THE PERIOD OF EFFECTIVENESS OF A RATE DETERMINATION UNDER
SEC. 5(A) IS LIMITED BY SEC. 4(E); THEY REASON THAT SEC. 4(D) CREATES
AN UNRESTRICTED RIGHT TO FILE RATE CHANGES, AND THAT SUCH CHANGES MAY,
UNDER SEC. 4(E), BE SUSPENDED FOR A PERIOD NO LONGER THAN FIVE MONTHS. 
IF THIS CONSTRUCTION WERE ACCEPTED, IT WOULD FOLLOW THAT AREA
PROCEEDINGS WOULD TERMINATE IN RATE LIMITATIONS THAT COULD BE
DISREGARDED BY PRODUCERS FIVE MONTHS AFTER THEIR PROMULGATION.  THE
RESULT, AS THE COMMISSION OBSERVED, WOULD BE THAT "THE CONCLUSION OF
ONE AREA PROCEEDING WOULD ONLY SIGNAL THE BEGINNING OF THE NEXT, AND
JUST AND REASONABLE RATES FOR CONSUMERS WOULD ALWAYS BE ONE AREA
PROCEEDING AWAY."  34 F.P.C., AT 228. 

WE CANNOT CONSTRUE THE COMMISSION'S STATUTORY AUTHORITY SO
RESTRICTIVELY.  NOTHING IN SEC. 5(A) IMPOSES LIMITATIONS OF TIME UPON
THE EFFECTIVENESS OF RATE DETERMINATIONS ISSUED UNDER IT; RATHER, THE
THEREAFTER OBSERVED . . . . "  MOREOVER, THIS COURT HAS ALREADY
DECLINED TO FIND IN SEC. 4(D) OR SEC. 4(E) AN "INVINCIBLE RIGHT TO
RAISE PRICES SUBJECT ONLY TO A SIX-MONTH DELAY AND REFUND LIABILITY." 
UNITED GAS V. CALLERY PROPERTIES, 382 U.S. 223, 232 (OPINION CONCURRING
IN PART AND DISSENTING IN PART).  SECTION 4(D) MERELY REQUIRES NOTICE
TO THE COMMISSION AS A CONDITION OF ANY MODIFICATION OF EXISTING RATES;
IT PROVIDES THAT A "CHANGE CANNOT BE MADE WITHOUT THE PROPER NOTICE TO
THE COMMISSION; IT DOES NOT SAY UNDER WHAT CIRCUMSTANCES A CHANGE CAN
BE MADE."  UNITED GAS CO. V. MOBILE GAS CORP., 350 U.S. 332, 339. 
(EMPHASIS IN ORIGINAL.)  NOR DOES SEC. 4(E) RESTRICT THE COMMISSION'S
AUTHORITY UNDER SEC. 5(A); IT PERMITS THE COMMISSION TO PRESERVE AN
EXISTING SITUATION PENDING CONSIDERATION OF A PROPOSED CHANGE IN RATES,
AND THEREAFTER TO ISSUE AN ORDER RETROACTIVELY FORBIDDING THE CHANGE;
BUT THE "SCOPE AND PURPOSE OF THE COMMISSION'S REVIEW (UNDER SEC. 5(A))
REMAIN THE SAME . . . . "  ID., AT 341. 

THE DEFICIENCIES OF THE PRODUCERS' CONSTRUCTION OF SECS. 4 AND 5 ARE
ILLUSTRATED BY UNITED GAS V. CALLERY PROPERTIES, SUPRA.  THE COURT HELD
IN CALLERY THAT PERMANENT CERTIFICATIONS ISSUED UNDER SEC. 7 MAY BE
CONDITIONED, EVEN UPON REMAND, BY A MORATORIUM UPON FILINGS UNDER SEC.
4(D) FOR RATES IN EXCESS OF A SPECIFIED CEILING.  AT ISSUE WERE
CONDITIONS IMPOSED UNDER SEC. 7(E) PRIOR TO THE DETERMINATION OF JUST
AND REASONABLE RATES; BUT NOTHING IN THE PERTINENT STATUTORY PROVISIONS
SUGGESTS THAT THE COMMISSION'S AUTHORITY UNDER SEC. 5(A) IS MORE
NARROW.  INDEED, IF THE PRODUCERS' CONSTRUCTION OF SECS. 4 AND 5 WERE
ADOPTED, WE SHOULD BE FORCED TO THE UNCOMFORTABLE RESULT THAT FILINGS
UNDER SEC. 4(D) MAY BE PRECLUDED BY THE COMMISSION'S RELATIVELY SUMMARY
DETERMINATION OF A PROVISIONAL IN-LINE PRICE, BUT NOT BY ITS FORMAL
ADJUDICATION, AFTER FULL DELIBERATION, OF A JUST AND REASONABLE PRICE. 
THE CONSEQUENCES OF SUCH A CONSTRUCTION WOULD, AS THE COMMISSION
OBSERVED, BE THE ENERVATION OF SEC. 5 AND THE EFFECTIVE DESTRUCTION OF
AREA REGULATION.  WE ARE, IN THE ABSENCE OF COMPELLING EVIDENCE THAT
SUCH WAS CONGRESS' INTENTION, UNWILLING TO PROHIBIT ADMINISTRATIVE
ACTION IMPERATIVE FOR THE ACHIEVEMENT OF AN AGENCY'S ULTIMATE
PURPOSES.  WE HAVE FOUND NO SUCH EVIDENCE HERE, AND THEREFORE HOLD THAT
THE COMMISSION MAY UNDER SECS. 5 AND 16 RESTRICT FILINGS UNDER SEC.
4(D) OF PROPOSED RATES HIGHER THAN THOSE DETERMINED BY THE COMMISSION
TO BE JUST AND REASONABLE. 

THE QUESTION REMAINS WHETHER THE IMPOSITION BY THE COMMISSION OF A
MORATORIUM UNTIL JANUARY 1, 1968, WAS A PERMISSIBLE EXERCISE OF THIS
AUTHORITY.  THE COMMISSION FOUND THAT IN 1960 THE COSTS OF GAS
PRODUCTION HAD RECNETLY BEEN, AND WOULD FORESEEABLY REMAIN, "REMARKABLY
STEADY"; /44/  IT REASONED THAT IN THESE CIRCUMSTANCES A MORATORIUM OF
2 1/2 YEARS, SUBJECT TO "MODIFICATION OF ITS ORIGINAL DECISION AFTER
APPROPRIATE PROCEEDINGS HELD IN THAT DOCKET,"  /45/  WOULD BOTH
FACILITATE ORDERLY ADMINISTRATION AND SATISFACTORILY ASSURE THE
PROTECTION OF PRODUCERS'  RIGHTS.  INDIVIDUAL PRODUCERS WOULD NOT HAVE
BEEN PREVENTED BY THE MORATORIUM FROM SEEKING RELIEF FROM THE MAXIMUM
AREA RATES; RELIEF WOULD HAVE BEEN POSSIBLE BOTH THROUGH THE
COMMISSION'S PROVISIONS FOR SPECIAL EXEMPTIONS AND THROUGH MOTIONS FOR
MODIFICATION OR TERMINATION OF THE MORATORIUM.  THIS IS NOT A CASE IN
WHICH THE COMMISSION HAS SOUGHT TO BIND PRODUCERS, WITHOUT RECOURSE AND
IN THE FACE OF CHANGING CIRCUMSTANCES, TO AN UNCHANGING RATE
STRUCTURE. 

WE CANNOT, GIVEN THE APPARENT STABILITY OF PRODUCTION COSTS, THE
COMMISSION'S RELATIVE INEXPERIENCE WITH AREA REGULATION, AND THE
ADMINISTRATIVE BURDENS OF CONCURRENT AREA PROCEEDINGS, HOLD THAT THIS
ARRANGEMENT WAS IMPERMISSIBLE.  WE NEED NOT ATTEMPT TO PRESCRIBE THE
LIMITATIONS OF THE COMMISSION'S AUTHORITY UNDER SECS. 5 AND 16 TO
IMPOSE MORATORIA UPON SEC. 4(D) FILINGS; IN PARTICULAR, WE INTIMATE NO
VIEWS ON THE PROPRIETY OF MORATORIA CREATED IN CIRCUMSTANCES OF
CHANGING COSTS.  THESE AND OTHER DIFFICULT ISSUES MAY MORE PROPERLY
AWAIT BOTH CLARIFICATION OF THE COMMISSION'S INTENTIONS AND THE
NECESSITIES OF THE PARTICULAR CIRCUMSTANCES.  WE HOLD ONLY THAT THIS
RELATIVELY BRIEF MORATORIUM DID NOT, IN THE CIRCUMSTANCES HERE
PRESENTED, EXCEED OR ABUSE THE COMMISSION'S AUTHORITY. 

A COLLATERAL ISSUE OF STATUTORY AUTHORITY MUST BE CONSIDERED.  THE
COMMISSION SUPPLEMENTED ITS MORATORIUM BY PROHIBITING PRICE INCREASES
THAT EXCEED THE AREA MAXIMUM RATES, IF THE INCREASES ARE THE PRODUCTS
OF CERTAIN VARIETIES OF CONTRACTUAL PRICE ESCALATION CLAUSES.  UNLIKE
THE MORE GENERAL MORATORIUM UPON FILINGS UNDER SEC. 4(D), THIS
PROSCRIPTION IS WITHOUT LIMIT OF TIME.  THE COMMISSION'S ORDER IS
APPLICABLE TO THE MOST-FAVORED-NATION, SPIRAL ESCALATION, AND
REDETERMINATION CLAUSES /46/  THAT IN 1961 IT ENTIRELY FORBADE IN
CONTRACTS EXECUTED ON OR AFTER APRIL 3, 1961; /47/  THE ADDITIONAL
LIMITATION PROVIDED HERE BY THE COMMISSION WAS INTENDED TO RESTRICT THE
USE OF CLAUSES INCLUDED IN CONTRACTS EXECUTED BEFORE THE DATE OF
EFFECTIVENESS OF THE COMMISSION'S EARLIER ORDERS.  THE COMMISSION
REASONED, AS HAD THE EXAMINER, THAT TO PERMIT PRODUCERS TO BREACH THE
AREA MAXIMUM RATES BY IMPLEMENTATION OF SUCH CLAUSES WOULD NOT BE "IN
ACCORDANCE WITH THE PRINCIPLES UPON WHICH A RATE STRUCTURE SHOULD BE
BASED."  34 F.P.C., AT 236.     INDEFINITE ESCALATION CLAUSES "CAUSE
PRICE INCREASES . . . TO OCCUR WITHOUT REFERENCE TO THE CIRCUMSTANCES
OR ECONOMICS OF THE PARTICULAR OPERATION, BUT SOLELY BECAUSE OF WHAT
HAPPENS UNDER ANOTHER CONTRACT."  34 F.P.C., AT 373.  THERE IS
SUBSTANTIAL EVIDENCE /48/  THAT IN DESIGN AND FUNCTION THEY ARE
"INCOMPATIBLE WITH THE PUBLIC INTEREST . . . . "  ORDER NO. 232, 25
F.P.C. 379, 380.  INDEED, THIS COURT HAS ALREADY ENTIRELY SUSTAINED THE
COMMISSION'S 1962 ORDER.  FPC V. TEXACO, 377 U.S. 33. 

THE PRODUCERS DO NOT SUGGEST THAT THE COMMISSION AND COURT WERE THERE
MISTAKEN; THEY URGE INSTEAD THAT THE COMMISSION HAS ACTED
INCONSISTENTLY WITH ITS DECISION IN PURE OIL CO., 25 F.P.C. 383, AND
THAT IT HAS WRONGLY INVALIDATED EXISTING CONTRACTS.  THE COMMISSION
DECLINED IN PURE OIL TO DECLARE UNENFORCEABLE ESCALATION CLAUSES
INCLUDED IN PREVIOUSLY EXECUTED CONTRACTS.  IT REASONED THAT SINCE THE
CONTRACTS LACKED SEVERABILITY PROVISIONS, TO STRIKE THE ESCALATION
CLAUSES WOULD, UNDER "FAMILIAR PRINCIPLES OF LAW," DESTROY THE
CONTRACTS; IT FEARED THAT THIS WOULD PROVE "MANY TIMES" MORE
PREJUDICIAL TO THE PUBLIC INTEREST THAN WOULD THE ESCALATION CLAUSES. 
ID., AT 388-389.  THE PRODUCERS ASSERT THAT THE COMMISSION HAS NOW
COMMITTED THE ERROR THAT IT AVOIDED IN PURE OIL.  THE COMMISSION
REJOINS THAT IT HAS NOT STRICKEN THE ESCALATION CLAUSES; IT HAS MERELY
LIMITED THEIR APPLICATION TO PRICES NO HIGHER THAN THE AREA MAXIMUM
RATES.  ALTERNATIVELY, THE COMMISSION AVERS THAT EVEN IF THE CONTRACTS
HAVE BEEN FRUSTRATED, NEITHER THE PUBLIC NOR THE PRODUCERS CAN SUFFER,
SINCE PRODUCERS' PRICES MAY BE AS HIGH AS, BUT NOT HIGHER THAN, THE
AREA MAXIMUM. 

WE THINK THAT THE COMMISSION DID NOT EXCEED OR ABUSE ITS AUTHORITY. 
COMMISSION MAY DETERMINE WHETHER "ANY RULE, REGULATION, PRACTICE, OR
CONTRACT AFFECTING . . . (ANY) RATE . . . IS UNJUST, UNREASONABLE,
UNDULY DISCRIMINATORY, OR PREFERENTIAL . . . ," AND PRESCRIBE THE
"RULES, REGULATION, PRACTICE, OR CONTRACT TO BE THEREAFTER OBSERVED . .
. . "  ALTHOUGH THE NATURAL GAS ACT IS PREMISED UPON A CONTINUING
SYSTEM OF PRIVATE CONTRACTING, UNITED GAS CO. V. MOBILE GAS CORP.,
SUPRA, THE COMMISSION HAS PLENARY AUTHORITY TO LIMIT OR TO PROSCRIBE
CONTRACTUAL ARRANGEMENTS THAT CONTRAVENE THE RELEVANT PUBLIC
INTERESTS.  COMPARE FPC V. SIERRA PACIFIC POWER CO., 350 U.S. 348.  NOR
MANY ITS ORDER PROPERLY BE SET ASIDE MERELY BECAUSE THE COMMISSION HAS
ON AN EARLIER OCCASION REACHED ANOTHER RESULT; ADMINISTRATIVE
AUTHORITIES MUST BE PERMITTED, CONSISTENTLY WITH THE OBLIGATIONS OF DUE
PROCESS, TO ADAPT THEIR RULES AND POLICIES TO THE DEMANDS OF CHANGING
CIRCUMSTANCES.  COMPARE AMERICAN TRUCKING V. A., T. & S.F.R. CO., 387
U.S. 397, 416.  SEE 2 K.DAVIS, ADMINSTRATIVE LAW TREATISE 18.09, AT 610
(1958).  WE NEED NOT, FOR PRESENT PURPOSES, CALCULATE WHAT COLLATERAL
CONSEQUENCES, IF ANY, THE COMMISSION'S ORDER MAY HAVE FOR THE TERMS OR
VALIDITY OF THE CONTRACTS IT REACHES; WE HOLD ONLY THAT THE COMMISSION
HAS HERE PERMISSIBLY RESTRICTED THE APPLICATION OF INDEFINITE
ESCALATION CLAUSES. 

THE NEXT SUPPLEMENTARY ORDER TO BE CONSIDERED IS THE COMISSION'S
CREATION OF VARIOUS EXEMPTIONS FOR THE SMALLER PRODUCERS.  THE
DIFFICULTIES OF THE SMALLER PRODUCERS DIFFER ONLY IN EMPHASIS FROM
THOSE OF THE LARGER INDEPENDENT PRODUCERS AND THE INTEGRATED PRODUCER
DISTRIBUTORS; BUT THESE DIFFERENCES ARE NOT WITHOUT RELEVANT
IMPORTANCE.  /49/  ALTHOUGH THE RESOURCES OF THE SMALL PRODUCERS ARE
ORDINARILY MORE LIMITED, THEIR ACTIVITIES ARE CHARACTERISTICALLY
FINANCIALLY MORE HAZARDOUS.  /50/  IT APPEARS THAT THEY DRILL A
DISPROPORTIONATELY LARGE NUMBER OF EXPLORATORY WELLS, AND THAT THESE
ARE FREQUENTLY IN AREAS IN WHICH RELATIVELY LITTLE EXPLORATION HAS
PREVIOUSLY OCCURRED.  /51/  THEIR CONTRIBUTION TO THE SEARCH FOR NEW
GAS RESERVES IS THEREFORE SIGNIFICANT, BUT IT IS MADE AT
CORRESPONDINGLY GREATER FINANCIAL RISKS AND AT HIGHER UNIT COSTS.  THE
RECORD BEFORE THE COMMISSION INCLUDED EVIDENCE THAT, FOR THIS AND OTHER
REASONS, SMALL PRODUCERS HAVE REGULARLY SUFFERED HIGHER PERCENTAGES OF
DRY WELLS, AND HIGHER AVERAGE COSTS PER MCF OF PRODUCTION.  /52/  AT
THE SAME TIME, THE COMMISSION FOUND THAT SMALL PRODUCERS ARE THE SOURCE
OF ONLY A MINOR SHARE OF THE TOTAL NATIONAL GAS PRODUCTION, AND THAT
THE PRICES THEY HAVE RECEIVED HAVE FOLLOWED CLOSELY THOSE OBTAINED BY
THE LARGER PRODUCERS.  /53/ 

THE COMMISSION REASONED THAT, IN THESE CIRCUMSTANCES, CAREFULLY
SELECTED SPECIAL ARRANGEMENTS FORSMALL PRODUCERS WOULD NOT IMPROPERLY
INCREASE CONSUMER PRICES.  MOREOVER, IT CONCLUDED THAT SUCH EXEMPTIONS
MIGHT USEFULLY BOTH STREAMLINE THE ADMINISTRATIVE PROCESS AND
STRENGTHEN THE SMALL PRODUCERS' FINANCIAL POSITION.  /54/  THE
COMMISSION PROVIDED TWO FORMS OF SPECIAL RELIEF:  FIRST, IT RELEASED
SMALL PRODUCERS FROM THE REQUIREMENT THAT QUALITY ADJUSTMENTS BE MADE
IN PRICE; /55/  AND SECOND, IT COMMENCED A RULE-MAKING PROCEEDING
INTENDED TO RELIEVE THEM FROM VARIOUS FILING AND REPORTING
OBLIGATIONS.  SEE 34 F.P.C. 434.  THE COMMISSION ASSERTED THAT THE
CONSEQUENCES FOR CONSUMER PRICES OF THE FIRST WOULD BE DE MINIMIS; IT
EXPECTED THAT THE SECOND WOULD MEASURABLY REDUCE THE SMALL PRODUCERS'
REGULATORY EXPENSES.  /56/ 

WE CONCLUDE THAT THESE ARRANGEMENTS DID NOT EXCEED THE COMMISSION'S
STATUTORY AUTHORITY.  WE RECOGNIZE THAT THE LANGUAGE OF SECS. 5 AND 7
IS WITHOUT EXCEPTION OR QUALIFICATION, BUT IT MUST ALSO BE NOTED THAT
THE COMMISSION IS EMPOWERED, FOR PURPOSES OF ITS RULES AND REGULATIONS,
TO "CLASSIFY PERSONS AND MATTERS WITHIN ITS JURISDICTION AND PRESCRIBE
DIFFERENT REQUIREMENTS FOR DIFFERENT CLASSES OF PERSONS OR MATTERS." 
SEC. 16, 15 U.S.C. 717O.  THE PROBLEMS AND PUBLIC FUNCTIONS OF THE
SMALL PRODUCERS DIFFER SUFFICIENTLY TO PERMIT THEIR SEPARATE
CLASSIFICATION, AND THE EXEMPTIONS CREATED BY THE COMMISSION FOR THEM
ARE FULLY CONSISTENT WITH THE TERMS AND PURPOSES OF ITS STATUTORY
RESPONSIBILITIES.  IT IS NOT WITHOUT RELEVANCE THAT THIS COURT HAS
PREVIOUSLY EXPRESSED THE BELIEF THAT SIMILAR ARRANGEMENTS WOULD
AMELIORATE THE COMMISSION'S ADMINISTRATIVE DIFFICULTIES.  SEE FPC V.
HUNT, 376 U.S. 515, 527. 

FINALLY, WE CONSIDER ONE ADDITIONAL QUESTION.  CERTAIN OF THE
PRODUCERS HAVE URGED THAT, HAVING ADOPTED A SYSTEM OF AREA REGULATION,
THE COMMISSION IMPROPERLY DESIGNATED THE PERMIAN BASIN AS A REGULATORY
AREA.  IT IS CONTENDED THAT THE COMMISSION FAILED TO PROVIDE
APPROPRIATE OPPORTUNITIES FOR BRIEFING AND ARGUMENT ON QUESTIONS OF THE
SIZE AND COMPOSITION OF THE AREA.  WE MUST, BEFORE CONSIDERING THE RATE
STRUCTURE DEVISED FOR THE PERMIAN BASIN BY THE COMMISSION, EXAMINE THIS
CONTENTION. 

THE COMMISSION'S DESIGNATION OF THE PERMIAN BASIN AS A REGULATORY
AREA STEMMED FROM ITS STATEMENT OF GENERAL POLICY, ISSUED SEPTEMBER 28,
1960.  24 F.P.C. 818.  THE COMMISSION THERE ANNOUNCED ITS INTENTION TO
REGULATE PRODUCERS'  INTERSTATE SALES THROUGH THE IMPOSITION OF MAXIMUM
AREA PRICES; IT PROVIDED, FOR THIS PURPOSE, A PROVISIONAL SYSTEM OF
GUIDELINE PRICES FOR THE PRINCIPAL PRODUCING AREAS.  THE COMMISSION
AVERRED THAT THESE AREAS, ALTHOUGH "NOT NECESSARILY IN COMPLETE ACCORD
WITH GEOGRAPHICAL AND ECONOMIC FACTORS," ARE "CONVENIENT AND WELL
KNOWN."  ID., AT 819.  IT DECLARED THAT, AS "EXPERIENCE AND CHANGING
FACTORS" REQUIRE, IT WAS PREPARED TO ALTER THE AREAS TO ELIMINATE ANY
INEQUITIES.  IBID. 

ON DECEMBER 23, 1960, THE COMMISSION ORDERED THE INSTITUTION OF THIS
PROCEEDING, FOR WHICH IT MERGED THREE OF THE PRODUCING AREAS SEPARATELY
LISTED BY THE STATEMENT OF GENERAL POLICY.  24 F.P.C. 1121.  IT
UNEQUIVOCALLY ANNOUNCED THAT "NO USEFUL PURPOSE WOULD BE SERVED AT THIS
TIME BY DELAYING THE DISCHARGE OF OUR PRIMARY RESPONSIBILITY . . . BY
ENTERTAINING ISSUES . . . THAT THE AREAS WE HAVE DELINEATED . . . MIGHT
BE INAPPROPRIATE FOR RATEMAKING PURPOSES."  ID., AT 1122.  IT APPEARS
THAT NO HEARINGS WERE CONDUCTED, AND NO EVIDENCE TAKEN, ON THE
PROPRIETY OF THE AREAS THUS DESIGNATED BY THE COMMISSION FOR INCLUSION
IN THIS PROCEEDING. 

WE DO NOT DOUBT THAT SIGNIFICANT ECONOMIC CONSEQUENCES MAY, IN
CERTAIN SITUATIONS, RESULT FROM THE DEFINITION OF BOUNDARIES AMONG
REGULATORY AREAS.  THE CALCULATION OF AVERAGE COSTS MIGHT, FOR EXAMPLE,
BE INFLUENCED BY THE INCLUSION OR OMISSION OF A GIVEN GROUP OF
PRODUCERS; AND THE LOSS OR RETENTION OF A PRICE DIFFERENTIAL BETWEEN
REGULATORY AREAS MIGHT PROVE DECISIVE TO THE SUCCESS OF MARGINAL
PRODUCERS.  NONETHELESS, WE HOLD THAT THE COMMISSION DID NOT ABUSE ITS
STATUTORY AUTHORITY BY ITS REFUSAL TO COMPLICATE STILL FURTHER ITS
FIRST AREA PROCEEDING BY INCLUSION OF ISSUES RELATING TO THE PROPER
SIZE AND COMPOSITION OF THE REGULATORY AREA. 

IT MUST FIRST BE EMPHASIZED THAT THE REGULATORY AREA DESIGNATED BY
THE COMMISSION WAS EVIDENTLY BOTH CONVENIENT AND FAMILIAR.  THERE IS
NOT EVIDENCE BEFORE US, AND THE PRODUCERS HAVE NOT ALLEGED, THAT THE
PERMIAN BASIN, AS IT WAS DEFINED BY THE COMMISSION, DOES NOT FIT EITHER
WITH PREVAILING INDUSTRY PRACTICE OR WITH OTHER PROGRAMS OF STATE OR
FEDERAL REGULATION.  /57/  MOREOVER, THE COMMISSION WAS ALREADY
CONFRONTED BY AN EXTRAORDINARY VARIETY OF DIFFICULT ISSUES OF FIRST
IMPRESSION; IT QUITE REASONABLY PREFERRED TO SIMPLIFY, SO FAR AS
POSSIBLE, ITS PROCEEDINGS.  FINALLY, IT IS NOT AMISS TO NOTE THAT THE
COMMISSION EVIDENTLY HAS MORE RECNTLY PERMITTED CONSIDERATION OF
SIMILAR QUESTIONS IN AREA PROCEEDINGS.  COMPARE AREA RATE PROCEEDING
(HUGOTON-ANADARKO AREA), 31 F.P.C. 888, 891.  WE ASSUME THAT,
CONSISTENT WITH THIS PRACTICE AND WITH THE TERMS OF ITS STATEMENT OF
GENERAL POLICY, THE COMMISSION NOW WOULD, UPON AN ADEQUATE REQUEST,
PERMIT INTERESTED PARTIES TO OFFER EVIDENCE AND ARGUMENT ON THE
PROPRIETY OF MODIFICATION OF THE PERMIAN BASIN REGULATORY AREA.  WE
HOLD ONLY THAT THE COMMISSION WAS NOT OBLIGED, IN THE CIRCUMSTANCES OF
THIS CASE, TO INCLUDE AMONG THE DISPUTED ISSUES QUESTIONS OF THE PROPER
SIZE AND COMPOSITION OF THE REGULATORY AREA. 

WE THEREFORE CONCLUDE THAT THE COMMISSION DID NOT, IN THESE
PROCEEDINGS, VIOLATE PERTINENT CONSTITUTIONAL LIMITATIONS, AND THAT ITS
ADOPTION OF A SYSTEM OF PRICE REGULATION, SUPPLEMENTED BY PROVISIONS
FOR A MORATORIUM UPON CERTAIN PRICE INCREASES AND FOR EXCEPTIONS FOR
SMALLER PRODUCERS, DID NOT ABUSE OR EXCEED ITS AUTHORITY.  WE
ACCORDINGLY TURN TO VARIOUS QUESTIONS THAT HAVE BEEN RAISED RESPECTING
THE PROPRIETY OF THE RATE STRUCTURE DEVISED BY THE COMMISSION FOR THE
PERMIAN BASIN. 

        IV. 

IT IS IMPORTANT FIRST TO DELINEATE THE CRITERIA BY WHICH WE SHALL
ASSES THE COMMISSION'S RATE STRUCTURE.  /58/  WE MUST REITERATE THAT
THE BREADTH AND COMPLEXITY OF THE COMMISSION'S RESPONSIBILITIES DEMAND
THAT IT BE GIVEN EVERY REASONABLE OPPORTUNITY TO FORMULATE METHODS OF
REGULATION APPROPRIATE FOR THE SOLUTION OF ITS INTENSELY PRACTICAL
DIFFICULTIES.  THIS COURT HAS THEREFORE REPEATEDLY STATED THAT THE
COMMISSION'S ORDERS MAY NOT BE OVERTURNED IF THEY PRODUCE "NO ARBITRARY
RESULT."  FPC V. NATURAL GAS PIPELINE CO., SUPRA, AT 586; FPC V. HOPE
NATURAL GAS CO., SUPRA, AT 602.  ALTHOUGH NEITHER LAW NOR ECONOMICS HAS
YET DEVISED GENERALLY ACCEPTED STANDARDS FOR THE EVALUATION OF RATE
MAKING ORDERS, /59/  IT MUST, NONETHELESS, BE OBVIOUS THAT REVIEWING
COURTS WILL REQUIRE CRITERIA MORE DISCRIMINATING THAN JUSTICE AND
ARBITRARINESS IF THEY ARE SENSIBLY TO APPRAISE THE COMMISSION'S
ORDERS.  THE COURT IN HOPE FOUND APPROPRIATE CRITERIA BY INQUIRING
WHETHER "THE RETURN TO THE EQUITY OWNER (IS) COMMENSURATE WITH RETURNS
ON INVESTMENTS IN OTHER ENTERPRISES HAVING CORRESPONDING RISKS, " AND
WHETHER THE RETURN WAS "SUFFICIENT TO ASSURE CONFIDENCE IN THE
FINANCIAL INTEGRITY OF THE ENTERPRISE, SO AS TO MAINTAIN ITS CREDIT AND
TO ATTRACT CAPITAL."  ID., AT 603.  AND COMPARE S.W. TEL. CO. V. PUBLIC
SERV. COMM., 262 U.S. 276, 290-292 (DISSENTING OPINION).  BUT SEE
EDGERTON, VALUE OF THE SERVICE AS A FACTOR IN RATE MAKING, 32
HARV.L.REV.  516.  THESE CRITERIA, SUITABLY MODIFIED TO REFLECT THE
SPECIAL CIRCUMSTANCES OF AREA REGULATION, REMAIN PERTINENT, BUT THEY
SCARCELY EXHAUST THE RELEVANT CONSIDERATIONS. 

THE COMMISSION CANNOT CONFINE ITS INQUIRIES EITHER TO THE
COMPUTATION OF COSTS OF SERVICE OR TO CONJECTURES ABOUT THE PROSPECTIVE
RESPONSES OF THE CAPITAL MARKET; IT IS INSTEAD OBLIGED AT EACH STEP OF
ITS REGULATORY PROCESS TO ASSESS THE REQUIREMENTS OF THE BROAD PUBLIC
INTERESTS ENTRUSTED TO ITS PROTECTION BY CONGRESS.  ACCORDINLY, THE
"END RESULT"  /60/  OF THE COMMISSION'S ORDERS MUST BE MEASURED AS MUCH
BY THE SUCCESS WITH WHICH THEY PROTECT THOSE INTERESTS AS BY THE
EFFECTIVENESS WITH WHICH THEY "MAINTAIN . . . CREDIT AND . . . ATTRACT
CAPITAL." 

IT FOLLOWS THAT THE RESPONSIBILITIES OF A REVIEWING COURT ARE
ESSENTIALLY THREE.  FIRST, IT MUST DETERMINE WHETHER THE COMMISSION'S
ORDER, VIEWED IN LIGHT OF THE RELEVANT FACTS AND OF THE COMMISSION'S
BROAD REGULATORY DUTIES, ABUSED OR EXCEEDED ITS AUTHORITY.  SECOND, THE
COURT MUST EXAMINE THE MANNER IN WHICH THE COMMISSION HAS EMPLOYED THE
METHODS OF REGULATION WHICH IT HAS ITSELF SELECTED, AND MUST DECIDE
WHETHER EACH OF THE ORDER'S ESSENTIAL ELEMENTS IS SUPPORTED BY
SUBSTANTIAL EVIDENCE.  THIRD, THE COURT MUST DETERMINE WHETHER THE
ORDER MAY REASONABLY BE EXPECTED TO MAINTAIN FINANCIAL INTEGRITY,
ATTRACT NECESSARY CAPITAL, AND FAIRLY COMPENSATE INVESTORS FOR THE
RISKS THEY HAVE ASSUMED, AND YET PROVIDE APPROPRIATE PROTECTION TO THE
RELEVANT PUBLIC INTERESTS, BOTH EXISTING AND FORESEEABLE.  THE COURT'S
RESPONSIBILITY IS NOT TO SUPPLANT THE COMMISSION'S BALANCE OF THESE
INTERESTS WITH ONE MORE NEARLY TO ITS LIKING, BUT INSTEAD TO ASSURE
ITSELF THAT THE COMMISSION HAS GIVEN REASONED CONSIDERATION TO EACH OF
THE PERTINENT FACTORS.  JUDICIAL REVIEW OF THE COMMISSION'S ORDERS WILL
THEREFORE FUNCTION ACCURATELY AND EFFICACIOUSLY ONLY IF THE COMMISSION
INDICATES FULLY AND CAREFULLY THE METHODS BY WHICH, AND THE PURPOSES
FOR WHICH, IT HAS CHOSEN TO ACT, AS WELL AS ITS ASSESSMENT OF THE
CONSEQUENCES OF ITS ORDERS FOR THE CHARACTER AND FUTURE DEVELOPMENT OF
THE INDUSTRY.  WE ARE, IN ADDITION, OBLIGED AT THIS JUNCTURE TO GIVE
WEIGHT TO THE UNUSUAL DIFFICULTIES OF THIS FIRST AREA PROCEEDING; WE
MUST, HOWEVER, EMPHASIZE THAT THIS WEIGHT MUST SIGNIFICANTLY LESSEN AS
THE COMMISSION'S EXPERIENCE WITH AREA REGULATION LENGTHENS.  WE SHALL
EXAMINE THE VARIOUS ISSUES PRESENTED BY THE RATE STRUCTURE IN LIGHT OF
THESE INTERRELATED CRITERIA.     THE FIRST ISSUE IS WHETHER THE
COMMISSION PROPERLY REJECTED THE PRODUCERS' CONTENTION THAT AREA RATES
SHOULD BE DERIVED FROM FIELD, OR CONTRACT, PRICES.  THE PRODUCERS HAVE
URGED THAT PREVAILING CONTRACT PRICES PROVIDE AN ACCURATE INDEX OF
AGGREGATE REVENUE REQUIREMENTS, AND THAT THEY ARE AN APPROPRIATE
MECHANISM FOR THE PROTECTION OF CONSUMER INTERESTS.  THE RECORD BEFORE
THE COMMISSION, HOWEVER, SUPPORTS ITS CONCLUSION THAT COMPETITION
CANNOT BE EXPECTED TO REDUCE FIELD PRICES IN THE PERMIAN BASIN TO THE
"LOWEST POSSIBLE REASONABLE RATE CONSISTENT WITH THE MAINTENANCE OF
ADEQUATE SERVICE IN THE PUBLIC INTERESTS."  ATLANTIC RFG.  CO. V.
PUBLIC SERVICE COMM'N, 360 U.S. 378, 388. 

THE FIELD PRICE OF NATURAL GAS PRODUCED IN THE PERMIAN BASIN HAS IN
RECENT YEARS STEADILY AND SIGNIFICANTLY INCREASED.  /61/  THESE
INCREASES ARE IN PART THE PRODUCTS OF A RELATIVELY INELASTIC SUPPLY AND
STEEPLY RISING DEMAND; BUT THEY ARE ALSO SYMPTOMATIC OF THE
DEFICIENCIES OF THE MARKET MECHANISM IN THE PERMIAN BASIN.  PRODUCERS'
CONTRACTS HAVE IN THE PAST CHARACTERISTICALLY INCLUDED INDEFINITE
ESCALATION CLAUSES.  THESE CLAUSES, IN COMBINATION WITH THE PRICE
LEADERSHIP OF A FEW LARGE PRODUCERS, /62/  AND WITH THE INABILITY OR
UNWILLINGNESS OF INTERSTATE PIPELINES TO BARGAIN VIGOROUSLY FOR REDUCED
PRICES, /63/  HAVE CREATED CIRCUMSTANCES IN WHICH PRICE INCREASES
UNCONNECTED WITH CHANGES IN COST MAY READILY BE OBTAINED.  THESE MARKET
IMPERFECTIONS, OPERATIVE DESPITE AN "ESSENTIALLY MONOPSONISTIC
ENVIRONMENT,"  /64/  HAVE ACCENTUATED THE CONSEQUENCES OF INELASTIC
SUPPLY AND SHARPLY RISING DEMAND.  ONCE AN INCREASE HAS BEEN OBTAINED
BY THE LARGER PRODUCERS, THE ESCALATION CLAUSES HAVE GUARANTEED SIMILAR
INCREASES TO OTHERS.  /65/  IN CONTRAST, CONSUMERS HAVE BEEN LEFT
WITHOUT EFFECTIVE PROTECTION AGAINST STEADILY RISING PRICES.  THEIR
ALTERNATIVE SOURCES OF ENERGY ARE IN PRACTICE FEW, AND THE DEMAND FOR
NATURAL GAS, PARTICULARLY IN CALIFORNIA, IS THEREFORE RELATIVELY
UNRESPONSIVE TO PRICE INCREASES.  /66/  THE CONSUMER IS THUS OBLIGED TO
RELY UPON THE COMMISSION TO PROVIDE "A COMPLETE, PERMANENT AND
EFFECTIVE BOND OF PROTECTION FROM EXCESSIVE RATES AND CHARGES." 
ATLANTIC RFG.  CO. V. PUBLIC SERVICE COMM'N, SUPRA, AT 388. 

WE DO NOT NOW HOLD, AND THE COMMISSION HAS NOT SUGGESTED, /67/  THAT
FIELD PRICES ARE WITHOUT RELEVANCE TO THE COMMISSION'S CALCULATION OF
JUST AND REASONABLE RATES UNDER SEC. 5(A).  THE RECORDS IN SUBSEQUENT
AREA PROCEEDINGS MAY MORE CLEARLY ESTABLISH THAT THE MARKET MECHANISM
WILL ADEQUATELY PROTECT CONSUMER INTERESTS.  /68/  WE HOLD ONLY THAT,
ON THIS RECORD, THE COMMISSION WAS NOT COMPELLED TO ADOPT FIELD PRICES
AS THE BASIS OF ITS COMPUTATIONS OF AREA REATES. 

WE NEXT EXAMINE THE COMMISSION'S DECISION TO CREATE TWO MAXIMUM AREA
RATES FOR THE PERMIAN BASIN.  UNDER THE COMMISSION'S RATE STRUCTURE,
THE APPLICABLE MAXIMUM PRICE FOR A PRODUCER'S SALE IS DETERMINED BOTH
BY THE MOMENT AT WHICH THE GAS WAS FIRST DEDICATED TO THE INTERSTATE
MARKET, AND BY THE METHOD BY WHICH THE GAS WAS PRODUCED.  IT FOLLOWS
THAT TWO PRODUCERS, SIMULTANEOUSLY OFFERING GAS OF EDENTICAL QUALITY
AND BTU CONTENT, MAY BE CONFRONTED BY DIFFERENT MAXIMUM PRICES. 

THE PREMISES OF THIS ARRANGEMENT ARE TWO.  FIRST, THE COMMISSION
EVIDENTLY BELIEVED THAT PRICE SHOULD BE EMPLOYED FUNCTIONALLY, AS A
TOOL TO ENCOURAGE THE PRODUCTION OF APPROPRIATE SUPPLIES OF NATURAL
GAS.  A PRICE IS THUS JUST AND REASONABLE WITHIN THE MEANING OF SECS.
4(A) AND 5(A) NOT MERELY BECAUSE IT IS "SOMEBODY'S IDEA OF RETURN ON A
'RATE BASE,'"  /69/  BUT BECAUSE IT RESULTS IN SATISFACTORY PROGRAMS OF
EXPLORATION, DEVELOPMENT AND PRODUCTION. 

SECOND, THE COMMISSION CONCLUDED THAT PRICE COULD USEFULLY SERVE AS
AN INCENTIVE TO EXPLORATION AND PRODUCTION ONLY IF IT WERE COMPUTED
ACCORDING TO THE METHOD BY WHICH GAS IS PRODUCED.  NATURAL GAS PRODUCED
JOINTLY WITH OIL IS NECESSARILY A RELATIVELY UNIMPORTANT BY-PRODUCT. 
THE VALUE OF OIL-WELL GAS IS ON AVERAGE ONLY ONE-SEVENTEENTH THAT OF
THE OIL WITH WHICH IT IS PRODUCED.  SEE 34 F.P.C., AT 322.  IT CANNOT
BE SEPARATELY SOUGHT OR INDEPENDENTLY PRODUCED; ITS PRODUCTION IS
EFFECTIVELY RESTRICTED BY STATE REGULATIONS INTENDED TO ENCOURAGE THE
CONSERVATION OF OIL.  ACCORDINGLY, THE SUPPLY OF OIL-WELL GAS IS, AS
THE EXAMINER OBSERVED, "ALMOST PERFECTLY INELASTIC."  ID., AT 323. 

ON THE OTHER HAND, GAS-WELL GAS IS PRODUCED INDEPENDENTLY OF OIL,
AND OF STATE RESTRICTIONS ON OIL PRODUCTION.  MORE IMPORTANT, THE
COMMISSION FOUND THAT A SEPARATE SEARCH CAN NOW BE CONDUCTED FOR GAS
RESERVOIRS; CUMULATIVE DRILLING EXPERIENCE PERMITS AT LEAST THE LARGER
PRODUCERS TO DIRECT THEIR PROGRAMS OF EXPLORATION AND DEVELOPMENT TO
THE SEARCH FOR GAS.  /70/  THE SUPPLY OF GAS-WELL GAS IS THEREFORE
RELATIVELY ELASTIC, AND ITS PRICE CAN MEANINGFULLY BE EMPLOYED BY THE
COMMISSION TO ENCOURAGE EXPLORATION AND PRODUCTION.  THE COMMISSION
REASONED THAT A HIGHER MAXIMUM RATE FOR GAS-WELL GAS DEDICATED TO
INTERSTATE COMMERCE AFTER THE APPROXIMATE MOMENT AT WHICH A SEPARATE
SEARCH BECAME WIDELY POSSIBLE WOULD PROVIDE AN EFFECTIVE INCENTIVE. 
/71/  CORRESPONDINGLY, THE COMMISSION ADOPTED A RELATIVELY LOW PRICE
FOR ALL OTHER NATURAL GAS PRODUCED IN THE PERMIAN BASIN, SINCE PRICE
COULD NOT SERVE AS AN INCENTIVE, AND SINCE ANY PRICE ABOVE AVERAGE
HISTORICAL COSTS, PLUS AN APPROPRIATE RETURN, WOULD MERELY CONFER
WINDFALLS. 

WE FIND NO OBJECTION UNDER THE NATURAL GAS ACT TO THIS DUAL
ARRANGEMENT.  WE HAVE EMPHASIZED THAT COURTS ARE WITHOUT AUTHORITY TO
SET ASIDE ANY RATE ADOPTED BY THE COMMISSION WHICH IS WITHIN A "ZONE OF
REASONABLENESS."  FPC V. NATURAL GAS PIPELINE CO., SUPRA, AT 585.  THE
COMMISSION MAY, WITHIN THIS ZONE, EMPLOY PRICE FUNCTIONALLY IN ORDER TO
ACHIEVE RELEVANT REGULATORY PURPOSES; IT MAY, IN PARTICULAR, TAKE FULLY
INTO ACCOUND THE PROBABLE CONSEQUENCES OF A GIVEN PRICE LEVEL FOR
FUTURE PROGRAMS OF EXPLORATION AND PRODUCTION.  NOTHING IN THE PURPOSES
OR HISTORY OF THE ACT FORBIDS THE COMMISSION TO REQUIRE DIFFERENT
PRICES FOR DIFFERENT SALES, EVEN IF THE DISTINCTIONS ARE UNRELATED TO
QUALITY, IF THESE ARRANGEMENTS ARE "NECESSARY OR APPROPRIATE TO CARRY
OUT THE PROVISIONS OF THIS ACT."  SEC. 16, 15 U.S.C. 717O.  WE HOLD
THAT THE STATUTORY "JUST AND REASONABLE" STANDARD PERMITS THE
COMMISSION TO REQUIRE DIFFERENCES IN PRICE FOR SIMULTANEOUS SALES OF
GAS OF IDENTICAL QUALITY, IT IT HAS PERMISSIBLY FOUND THAT SUCH
DIFFERENCES WILL EFFECTIVELY SERVE THE REGULATORY PURPOSES CONTEMPLATED
BY CONGRESS. 

THE COMMISSION'S RESPONSIBILITIES INCLUDE THE PROTECTION OF FUTURE,
AS WELL AS PRESENT, CONSUMER INTERESTS.  IT HAS HERE FOUND, ON THE
BASIS OF SUBSTANTIAL EVIDENCE, THAT A TWO-PRICE RATE STRUCTURE WILL
BOTH PROVIDE A USEFUL INCENTIVE TO EXPLORATION AND PREVENT EXCESSIVE
PRODUCER PROFITS.  IN THESE CIRCUMSTANCES, THERE IS NO OBJECTION UNDER
THE NATURAL GAS ACT TO THE PRICE DIFFERENTIALS REQUIRED BY THE
COMMISSION. 

THE SYMMETRY OF THE COMMISSION'S INCENTIVE PROGRAM IS, HOWEVER,
MARRED.  THE COMMISSION HELD IN 1965 THAT THE HIGHER MAXIMUM RATE
SHOULD BE APPLICABLE TO GAS-WELL GAS COMMITTED TO INTERSTATE COMMERCE
SINCE JANUARY 1, 1961.  IT IS DIFFICULT TO SEE HOW THE HIGHER RATE
COULD REASONABLY HAVE BEEN EXPECTED TO ENCOURAGE, RETROSPECTIVELY,
EXPLORATION AND PRODUCTION THAT HAD ALREADY OCCURRED.  THERE IS THUS
FORCE IN COMMISSIONER ROSS' CONTENTION THAT THIS THIS ARRANGEMENT IS
NOT FULLY CONSISTENT WITH THE LOGIC OF THE TWO-PRICE SYSTEM.  /72/ 

NONETHELESS, WE ARE CONSTRAINED TO HOLD THAT THIS WAS A PERMISSIBLE
EXERICE OF THE COMMISSION'S DISCRETION.  THE COMMISSION BELIEVED THAT
ITS STATEMENT OF GENERAL POLICY, ISSUED SEPTEMBER 28, 1960, HAD CREATED
REASONABLE EXPECTATIONS AMONG PRODUCERS THAT HIGHER RATES WOULD
THEREAFTER BE PERMITTED FOR INITIAL FILINGS UNDER SEC. 7.  /73/  THE
COMMISSION EVIDENTLY CONCLUDED THAT FAIRNESS OBLIGED IT TO SATISFY, AT
LEAST IN PART, THOSE EXPECTATIONS.  WE MUST ALSO RECOGNIZE THAT AN
UNEXPECTED DOWNWARD REVISION OF THE GUIDELINE PRICE FOR INITIAL
FILINGS, WITH ACCOMPANYING REFUNDS, MIGHT HAVE SERIOUSLY DIMINISHED THE
PRODUCERS' CONFIDENCE IN INTERSTATE PRICES, AND PERHAPS THREATENED THE
FUTURE INTERSTATE SUPPLY OF NATURAL GAS.  /74/  WE CAN ASSUME THAT THE
COMMISSION GAVE ATTENTION TO THIS POSSIBILITY.  COMPARE 34 F.P.C., AT
188.  THESE FACTORS PROVIDE A PERMISSIBLE BASIS FOR THIS EXERCISE OF
THE COMMISSION'S AUTHORITY. 

WE MUST NEXT EXAMINE THE METHODS BY WHICH THE COMMISSION REACHED THE
TWO MAXIMUM RATES IT CREATED FOR GAS PRODUCED IN THE PERMIAN BASIN. 
THE COMMISSION JUSTIFIED ITS ADOPTION OF A TWO-PRICE RATE STRUCTURE BY
RELIANCE UPON FUNCTIONAL PRICING; IT SUGGESTED THAT TWO PRICES, WITH AN
APPROPRIATE DIFFERENTIAL, MAY BE USED SO AS BOTH TO PROVIDE AN
INCENTIVE TO EXPLORATION AND TO RESTRICT TO REASONABLE LEVELS
PRODUCERS' PROFITS.  IN TURN, IT COMPUTED THE TWO AREA MAXIMUM PRICES
DIRECTLY FROM COSTS OF SERVICE, WITHOUT ALLOWANCES FOR NONCOST
FACTORS.  THE PRICE DIFFERENTIAL WHICH THE COMMISSION EXPECTS TO SERVE
AS AN INCENTIVE IS THE PRODUCT OF DIFFERENCES IN THE TIME PERIODS AND
GEOGRAPHICAL AREAS FOR WHICH COSTS WERE COMPUTED, AND NOT TO NONCOST
ADDITIVES TO COST COMPONENTS.  FINALLY, THE COMMISSION, BY ITS ADOPTION
OF A MORATORIUM UNTIL JANUARY 1, 1968, CREATED A TEMPORARY PRICE FREEZE
IN THE PERMIAN BASIN.  /76/ 

ALTHOUGH WE WOULD EXPECT THAT THE COMMISSION WILL HEREAFTER INDICATE
MORE PRECISELY THE FORMULAE BY WHICH IT INTENDS TO PROCEED, WE SEE NO
OBJECTION TO ITS USE OF A VARIETY OF REGULATORY METHODS.  PROVIDED ONLY
THAT THEY DO NOT TOGETHER PRODUCE ARBITRARY OR UNREASONABLE
CONSEQUENCES, THE COMMISSION MAY EMPLOY ANY "FORMULA OR COMBINATION OF
FORMULAS?"  IT WISHES, AND IS FREE "TO MAKE THE PRAGMATIC ADJUSTMENTS
WHICH MAY BE CALLED FOR BY PARTICULAR CIRCUMSTANCES."  FPC V. NATURAL
GAS PIPELINE CO., SUPRA, AT 586.  WE HAVE ALREADY CONSIDERED THE
COMMISSION'S ADOPTION OF A TWO-PRICE SYSTEM AND OF A MORATORIUM, AND
HAVE CONCLUDED THAT THEY ARE EACH REASONABLY CALCULATED TO ACHIEVE
APPROPRIATE REGULATORY PURPOSES.  IT REMAINS NOW TO EXAMINE ITS
COMPUTATION OF THE AREA MAXIMUM PRICES FROM THE PRODUCERS' COSTS OF
SERVICE. 

THE COMMISSION DERIVED THE MAXIMUM RATE FOR NEW GAS-WELL FROM
COMPOSITE COST DATA INTENDED TO EVIDENCE THE NATIONAL COSTS IN 1960 OF
FINDING AND PRODUCING GAS-WELL GAS.  IT REASONED THAT THESE COSTS
SHOULD BE COMPUTED FROM NATIONAL, AND NOT AREA, DATA BECAUSE, FIRST,
THE LARGER PRODUCERS CONDUCT NATIONAL PROGRAMS OF EXPLORATION, AND,
SECOND, "MUCH, IF NOT MOST, OF THE RELEVANT INFORMATION"  /77/  WAS
AVAILABLE ONLY ON A NATIONAL BASIS.  IT HELD, IN ADDITION, THAT COSTS
IN THE PERMIAN BASIN DID NOT "VARY SUFFICIENTLY FROM THE NATIONAL
AVERAGE TO WARRANT A DIFFERENT TREATMENT . . . . "  34 F.P.C., AT 191. 
THE COMMISSION FOUND THAT 1960 COST DATA SHOULD BE USED, AND HISTORICAL
DATA DISREGARDED, BECAUSE ONLY RELATIVELY CURRENT COST DATA WOULD
ADEQUATELY GUARANTEE AN EFFECTIVE INCENTIVE FOR FUTURE EXPLORATION AND
PRODUCTION.  THE COMMISSION WAS OBLIGED TO OBIAIN THE RELEVANT COST
DATA FROM A VARIETY OF SOURCES.  NATURAL GAS PRODUCERS HAVE NOT YET
BEEN REQUIRED TO ADOPT ANY UNIFORM SYSTEM OF ACCOUNTS, AND NO PRIVATE
OR PUBLIC AGENCY HAD IN 1965 COLLECTED ALL THE PERTINENT INFORMATION. 
MANY OF THE DATA WERE TAKEN FROM NATIONALLY PUBLISHED STATISTICS; /78/
THE BALANCE WAS DERIVED FROM QUESTIONNAIRES COMPLETED BY THE
PRODUCERS.  THE COMMISSION CONCLUDED THAT THESE SOURCES "IN COMBINATION
PROVIDE AN ADEQUATE BASIS FOR THE COSTS WE HAVE FOUND."  IBID. 

THE MAXIMUM JUST AND REASONABLE RATE FOR ALL OTHER PERMIAN BASIN GAS
WAS CALCULATED FROM COST DATA INTENDED TO REFLECT THE HISTORICAL COSTS
OF GAS-WELL GAS PRODUCED IN 1960 IN THE PERMIAN BASIN.  THE EXAMINER
HAD COMPUTED THIS RATE BY ESSENTIALLY THE SAME METHOD HE HAD USED FOR
NEW GAS-WELL GAS, WITH CERTAIN COST COMPONENTS ADJUSTED BY BACK
TRENDING.  THE COMMISSION'S STAFF, ON THE OTHER HAD, OFFERED A
COMPREHENSIVE STUDY OF HISTORICAL COSTS OF SERVICE.  THE COMMISSION
ADOPTED BOTH METHODS, USING THE EXAMINER'S BACK-TRENDED COST
COMPUTATIONS AS A CHECK UPON THE ACCURACY OF THE STAFF'S PRESENTATION. 

THE COMMISSION REASONED THAT EXCESSIVE PRODUCER PROFITS COULD BE
MINIMIZED ONLY IF THE RATE FOR FLOWING GAS WERE DERIVED FROM THE MOST
PRECISE AVAILABLE EVIDENCE OF ACTUAL HISTORICAL COSTS.  IT THEREFORE
HELD THAT THESE COSTS SHOULD BE TAKEN FROM AREA, AND NOT NATIONAL,
DATA. 

THE COMMISSION'S STAFF OBTAINED THE DATA NECESSARY FOR ITS
COMPUTATION OF HISTORICAL COSTS FROM QUESTIONNAIRES COMPLETED BY
PRODUCERS.  THE INFORMATION USED BY THE STAFF, AND ULTIMATELY ADOPTED
BY THE COMMISSION, WAS TAKEN FROM QUESTIONNAIRES SUBMITTED BY 42 MAJOR
PRODUCERS, WHICH TOGETHER ACCOUNT FOR 75% OF ALL THE GAS PRODUCED IN
THE BASIN, AND 85% OF ALL THE GAS-WELL GAS.  NONETHELESS, SOME TWO
THIRDS OF ALL THE GAS PRODUCED IN THE PERMIAN BASIN IS OIL-WELL GAS,
AND SUN OIL ESTIMATES THAT THE STAFF'S GAS-WELL GAS DATA WERE THUS
APPLICABLE ONLY TO SOME 15.3% OF THE TOTAL PRODUCTION OF NATURAL GAS IN
THE BASIN IN 1960.  /79/     WE HOLD THAT THE COMMISSION, IN
CALCULATING COST DATA FOR THE TWO MAXIMUM RATES BY DIFFERING
GEOGRAPHICAL BASES AND TIME PERIODS, DID NOT ABUSE ITS AUTHORITY.  THE
COMMISSION'S USE OF SEPARATE SOURCES OF DATA FOR THE TWO RATES
PERMITTED THE CREATION OF A PRICE DIFFERENTIAL BETWEEN THEM WITHOUT THE
INCLUSION OF NONCOST COMPONENTS.  ITS SELECTION OF TIME PERIODS AND
GEOGRAPHICAL BASES WERE ENTIRELY CONSISTENT WITH THE LOGIC OF ITS
SYSTEM OF INCENTIVE PRICING.  IN THESE CIRCUMSTANCES, WE CAN FIND NO
TENABLE OBJECTION TO THIS ASPECT OF THE COMMISSION'S RATE STRUCTURE. 

IT IS FURTHER CONTENDED THAT THE COMMISSION IMPERMISSIBLY USED
FLOWING GAS-WELL DATA TO CALCULATE THE MAXIMUM RATE FOR OLD GAS,
THEREBY DISREGARDING ENTIRELY THE COSTS OF GAS PRODUCED IN ASSOCIATION
WITH OIL.  THE COMMISSION'S EXPLANATION WAS ESSENTIALLY PRAGMATIC.  IT
REASONED THAT THE UNCERTAINTIES OF JOINT COST ALLOCATION PRECLUDE
ACCURATE COMPUTATIONS OF THE COST OF CASINGHEAD AND RESIDUE GAS. 
FURTHER, THE COMMISSION AVERRED THAT IT IS ADMINISTRATIVELY IMPERATIVE
TO SIMPLIFY, SO FAR AS POSSIBLE, THE AREA RATE STRUCTURE.  THE
COMMISSION REGARDED ITS ADOPTION OF A SINGLE AREA MAXIMUM PRICE FOR ALL
GAS, EXCEPT NEW GAS-WELL GAS, ITS RESIDUE AND GAS-CAP GAS, AS "AN
IMPORTANT STEP TOWARD SIMPLIFIED AND REALISTIC AREA PRICE REGULATION." 
34 F.P.C., AT 211. 

WE CANNOT SAY THAT THESE ARRANGEMENTS ARE IMPERMISSIBLE.  THERE IS
AMPLE SUPPORT FOR THE COMMISSION'S JUDGMENT THAT THE APPORTIONMENT OF
ACTUAL COSTS BETWEEN TWO JOINTLY PRODUCED COMMODITIES, ONLY ONE OF
WHICH IS REGULATED BY THE COMMISSION, IS INTRINSICALLY UNRELIABLE. 
/80/  IT IS TRUE THAT CERTAIN OF THE COSTS OF GAS-WELL GAS MUST ALSO BE
APPORTIONED, BY THE COMMISSION REASONABLY CONCLUDED THAT THESE
DIFFICULTIES ARE RELATIVELY LESS SEVERE.  /81/  THE COMMISSION WAS, IN
ADDITION, ENTITLED TO GIVE GREAT WEIGHT TO THE ADMINISTRATIVE
IMPORTANCE OF A SIMPLIFIED RATE STRUCTURE.  FINALLY, IT IS RELEVANT
THAT THE COMMISSION FOUND THAT THE COST OF CASINGHEAD AND RESIDUE GAS
COULD NOT BE HIGHER, AND, IF EXPLORATION AND DEVELOPMENT COSTS ARE
REALISTICALLY DISCOUNTED, MUST SURELY BE LOWER THAN THE COSTS OF
FLOWING GAS-WELL GAS.  /82/  THESE CONSIDERATIONS IN COMBINATION
WARRANTED THE COMMISSION'S JUDGMENT THAT A SINGLE AREA MAXIMUM PRICE
FOR ALL OTHER THAN NEW GAS-WELL GAS SHOULD BE IMPOSED, AND THAT THIS
MAXIMUM RATE SHOULD BE DERIVED ENTIRELY FROM THE HISTORIC COSTS OF
FLOWING GAS-WELL GAS. 

WE TURN NOW TO THE COMMISSION'S COMPUTATION OF THE PROPER RATE
BASE.  THE COMMISSION'S METHOD HERE DIFFERED SIGNIFICANTLY FROM THAT
FREQUENTLY PREFERRED BY REGULATORY AUTHORITIES.  IT DID NOT USE A
DECLINING RATE BASE AND RETURN, BUT INSTEAD COMPUTED AN AVERAGE NET
PRODUCTION INVESTMENT, TO WHICH IT APPLIED A CONSTANT RATE OF RETURN. 
THE COMMISSION ASSUMED FOR THIS PURPOSE THAT A GAS WELL DEPLETES AT A
UNIFORM RATE, AND THAT IT IS, ON AVERAGE, TOTALLY DEPLETED IN 20
YEARS.  IT FOUND THAT THE ANNUAL CAPITAL -RECOVERY COST, INCLUDING
DEPLETION, DEPRECIATION, AND AMORTIZATION, WAS 3.95[ PER MCF.  ALLOWING
ONE YEAR FOR A LAG BETWEEN INVESTMENT AND FIRST PRODUCTION, THE
COMMISSION OBTAINED AN AVERAGE PRODUCTION INVESTMENT OF 43.45[ PER
MCF.  THE PROPER RETURN PER MCF WAS THEN CALCULATED BY MULTIPLYING THIS
FIGURE BY THE RATE OF RETURN. 

THE PRODUCERS ARGUE THAT THIS HAS THE EFFECT OF POSTPONING REVENUE,
AND THUS DISCOUNTING ITS PRESENT VALUE; THEY SUGGEST THAT THE
COMMISSION SHOULD PROPERLY HAVE EMPLOYED A DECLINING INVESTMENT BASE
AND RETURN.  THIS IS A QUESTION PECULIARLY WITHIN THE COMMISSION'S
DISCRETION, AND, WHILE THE METHOD ADOPTED BY THE COMMISSION WAS
EVIDENTLY LESS FAVORABLE TO THE PRODUCERS THAN VARIOUS OTHER POSSIBLE
FORMULAE, WE CANNOT HOLD THAT IT WAS ARBITRARY OR UNREASONABLE. 

WE NEXT CONSIDER WHETHER THE RATE OF RETURN ADOPTED BY THE
COMMISSION WAS A PERMISSIBLE EXERCISE OF ITS REGULATORY AUTHORITY.  THE
COMMISSION FIRST ASSERTED THAT RATES OF RETURN MUST BE ASSESSED BY A
COMPARABLE-EARNINGS STANDARD.  UNDER SUCH A STANDARD, EARNINGS SHOULD
BE PERMITTED THAT ARE "EQUAL TO THAT GENERALLY BEING MADE AT THE SAME
TIME AND IN THE SAME GENERAL PART OF THE COUNTRY ON INVESTMENTS IN
OTHER BUSINESS UNDERTAKINGS WHICH ARE ATTENDED BY CORRESPONDING RISKS
AND UNCERTAINTIES."  BLUEFIELD CO. V. PUBLIC SERVICE COMM., 262 U.S.
679, 692; FPC V. HOPE NATURAL GAS CO., SUPRA, AT 603.  ALTHOUGH OTHER
STANDARDS MIGHT PROPERLY HAVE BEEN EMPLOYED, /83/  THE COMMISSION'S
DECISION TO EXAMINE COMPARABLE EARNINGS WAS FULLY CONSISTENT WITH
PREVAILING ADMINISTRATIVE PRACTICE, AND MANIFESTLY WAS NOT AN ABUSE OF
ITS AUTHORITY. 

THE COMMISSION RELIED FOR PURPOSES OF COMPARISON CHIEFLY UPON THE
RATES OF RETURN THAT HAVE RECENTLY BEEN PERMITTED TO THE INTERSTATE
PIPELINES.  IT FOUND THAT PIPELINES HAD BEEN GIVEN RETURNS OF 6.0 TO
6.5% ON NET INVESTMENT, WITH A YIELD ON EQUITY OF 10 TO 12%.  /84/  THE
COMMISSION NOTED THAT PRODUCERS CHARACTERISTICALLY HAVE LESS LONG-TERM
DEBT THAN PIPELINES, /85/  AND THAT THE FINANCIAL RISKS OF PRODUCTION
ARE SOMEWHAT GREATER THAN THOSE OF TRANSMISSION.  /86/  IT REAONSED
THAT THESE DIFFERENCES WARRANTED AMORE GENEROUS RATE OF RETURN FOR
PRODUCERS.  IN ADDITION, THE COMMISSION STATED THAT THE RISK OF FINDING
GAS OF LESS THAN PIPELINE QUALITY, CREATED BY THE COMMISSION'S
PROMULGATION OF QUALITY AND BTU STANDARDS, SHOULD BE REFLECTED IN THE
RATE OF RETURN.  FINALLY, THE COMMISSION SOUGHT TO DETERMINE THE RATE
OF RETURN RECENTLY EARNED BY PRODUCERS OF NATURAL GAS.  IT FOUND THAT
ACCURATE RATES OF RETURN COULD NOT BE CALCULATED WITH ASSURANCE,
ALTHOUGH THE COMMISSION'S STAFF OFFERED EVIDENCE OF AN AVERAGE RETURN
FOR NINE COMPANIES OVER FIVE YEARS OF 12.4% ON NET INVESTMENT.  /87/
THE COMMISSION CONCLUDED THAT, DESPITE ITS STATISTICAL DEFICIENCIES,
THIS AND SIMILAR EVIDENCE MUST BE GIVEN "HEAVY CONSIDERATION IN THE
DECISIONAL PROCESS."  37 F.P.C., AT 203. 

ON BALANCE, THE COMMISSION SELECTED 12% AS THE PROPER RATE OF RETURN
FOR GAS OF PIPELINE QUALITY.  WE THINK THAT THIS JUDGMENT WAS SUPPORTED
BY SUBSTANTIAL EVIDENCE, AND THAT IT DID NOT EXCEED OR ABUSE THE
COMMISSION'S AUTHORITY.  THE EVIDENCE BEFORE THE COMMISSION FAIRLY
SUGGESTS THAT THIS RATE WILL BE LIKELY TO "MAINTAIN (THE PRODUCERS')
FINANCIAL INTEGRITY, TO ATTRACT CAPITAL, AND TO COMPENSATE (THEIR)
INVESTORS FOR THE RISKS ASSUMED . . . . "  FPC V. HOPE NATURAL GAS CO.,
SUPRA, AT 605.  FURTHER, THE DISTRIBUTORS AND PUBLIC AGENCIES BEFORE
THE COURT HAVE NOT SUGGESTED, AND WE FIND NO REASON TO BELIEVE, THAT
THIS RETURN WILL EXCEED THE PROPER REQUIREMENTS OF THE INDUSTRY.  /88/
CERTAINLY, AS WE SHALL SHOW BELOW, THIS RETURN IS NO MORE THAN
COMPARABLE TO THAT CHARACTERISTICALLY ALLOWED INTERSTATE PIPELINES. 

NONETHELESS, THERE REMAINS ONE FURTHER ISSUE ESSENTIAL TO AN
ACCURATE APPRAISAL OF THE RETURN PERMITTED BY THE COMMISSION.  THE
COMMISSION'S COMPUTATION OF THE RATE OF RETURN WAS SPECIFICALLY
PREMISED IN PART ON THE ADDITIONAL FINANCIAL RISKS CREATED FOR
PRODUCERS BY THE COMMISSION'S PROMULGATION OF QUALITY AND BTU
STANDARDS.  /89/  ITS OPINION IN THESE PROCEEDINGS INCLUDED A SERIES OF
SPECIFIC QUALITY STANDARDS.  /90/  THE COMMISSION RULED THAT GAS THAT
FAILS TO SATISFY THESE STANDARDS MUST BE SOLD AT PRICES LOWER THAN THE
APPLICABLE AREA MAXIMUM; THE AMOUNT OF THE REDUCTION NECESSARY IN EACH
SALE IS TO BE INITIALLY DETERMINED BY THE PARTIES, SUBJECT TO REVIEW BY
THE COMMISSION.  FURTHER, NATURAL GAS WITH A BTU CONTENT OF LESS THAN
1,000 PER CUBIC FOOT MUST BE SOLD AT A PRICE PROPORTIONATELY LOWER THAN
THE APPLICABLE AREA MAXIMUM, AND GAS WITH A BTU CONTENT OF MORE THAN
1,050 PER CUBIC FOOT MAY BE SOLD AT A PRICE PROPORTIONATELY HIGHER THAN
THE AREA MAXIMUM.  /91/  THE COMMISSION CONCEDED THAT IT COULD NOT
PRECISELY DETERMINE THE REVENUE CONSEQUENCES OF THESE ADJUSTMENTS,
ALTHOUGH ITS OPINION DENYING APPLICATIONS FOR REHEARING PROVIDED
VARIOUS ESTIMATES.  IT APPEARS TO BE CONCEDED THAT THE QUALITY OF GAS
PRODUCED IN THE BASIN IS CHARACTERISTICALLY LOWER THAN THE COMMISSION'S
STANDARDS, AND THAT THE STANDARDS ARE THEREFORE LIKELY TO BE MORE
SIGNIFICANT THAN THEY MIGHT BE IN OTHER PRODUCING AREAS. 

THE PRODUCERS URGE, AND THE COURT OF APPEALS HELD, THAT THIS
ARRANGEMENT IS DOUBLY ERRONEOUS.  FIRST, IT TREATS AS A RISK WHAT
PROPERLY IS A COST, AND THUS EVADES THE NECESSITY OF APPROPRIATE
FINDINGS ON THE REVENUE CONSEQUENCES OF THE QUALITY ADJUSTMENTS. 
SECOND, IT REDUCES THE RATE OF RETURN ACTUALLY PERMITTED INDIVIDUAL
PRODUCERS TO AN UNASCERTAINABLE FIGURE OF LESS THAN 12%, AND THUS
PREVENTS AN ACCURATE APPRAISAL OF ITS SUFFICIENCY.  WE FIND BOTH
SUGGESTIONS UNPERSUASIVE. 

WE CANNOT NOW HOLD THAT IT WAS IMPERMISSIBLE FOR THE COMMISSION TO
TREAT THE QUALITY ADJUSTMENTS AS A RISK OF PRODUCTION.  IT MUST BE
RECALLED THAT THE COMMISSION WAS IN THIS FIRST AREA RATE CASE UNABLE TO
DETERMINE WITH PRECISION THE AVERAGE AMOUNT OF THE NECESSARY PRICE
REDUCTIONS, AND THAT IT THUS WOULD HAVE BEEN DIFFICULT TO HAVE INCLUDED
THEM AS COSTS, AS THE COURT OF APPEALS SUGGESTED.  FURTHER, WE
RECOGNIZE THAT THE COMMISSION'S METHOD, PREMISED ON AGREEMENT BETWEEN
THE PARTIES TO EACH SALE, HAS AT LEAST THE ADVANTAGE OF REQUIRING
DISCRETE AND ACCURATE ADJUSTMENTS FOR EACH TRANSACTION.  FINALLY, AS WE
SHALL SHOW BELOW, TREATMENT OF THESE ADJUSTMENTS AS RISKS OF PRODUCTION
DID NOT IN THIS CASE RESULT IN INADEQUATE FINDINGS, AND DOES NOT
PREVENT PROPER APPRAISAL OF THE RATE OF RETURN PERMITTED BY THE
COMMISSION.  IN ANY EVENT, THE COMMISSIONS DISCRETION IN SUCH MATTERS
IS NECESSARILY BROAD, AND ITS CHOICE CANNOT BE SAID TO HAVE ABUSED ITS
DISCRETION. 

THE COMMISSION ESTIMATED IN ITS OPINION DENYING APPLICATIONS FOR
REHEARING THAT THE QUALITY ADJUSTMENTS WOULD RESULT IN AVERAGE PRICE
REDUCTIONS OF FROM 0.7[ TO 1.5[ PER MCF.  IN TURN, THE AMOUNT OF THESE
ADJUSTMENTS WILL BE REDUCED BY PRICE INCREASES FOR HIGH BTU CONTENT,
AND BY REVENUE FROM PLANT LIQUIDS.  /92/  WE BELIEVE THAT, IN THE
CIRCUMSTANCES PRESENTED, THESE ESTIMATES WERE ADEQUATE.  THE
COMMISSION'S INFORMATION ABOUT EXISTING CONTRACTS WAS EVIDENTLY NOT
SUFFICIENTLY COMPLETE TO PERMIT PRECISE CALCULATIONS FROM PREVIOUS
EXPERIENCE.  MOREOVER, SINCE THE ADJUSTMENTS ARE TO BE, IN THE FIRST
INSTANCE, THE PRODUCT OF AGREEMENT BETWEEN THE PARTIES, A DIMENSION OF
UNCERTAINTY IS NECESSARILY CREATED.  DESPITE THESE DIFFICULTIES, THE
COMMISSION PROVIDED REASONABLY SPECIFIC ESTIMATES OF THE RANGE OF
ADJUSTMENTS THAT IT BELIEVED WOULD RESULT.  WE ARE ENTITLED NOW TO TAKE
NOTICE THAT THESE ARE CONFIRMED BY SUBSEQUENT EVENTS.  /93/  WE HOLD
THAT THE COMMISSION'S PROMULGATION OF QUALITY STANDARDS WAS ACCOMPANIED
BY ADEQUATE FINDINGS AS TO THEIR REVENUE CONSEQUENCES. 

THE COMMISSION DID NOT PROVIDE SPECIFIC FINDINGS AS TO THE EFFECT OF
THESE REVENUE ADJUSTMENTS UPON THE PRODUCERS' RATE OF RETURN.  THIS WAS
AN UNFORTUNATE OMISSION, BUT IT DOES NOT PRECLUDE EVALUATION OF THE
COMMISSION'S CONCLUSIONS.  IT WOULD APPEAR, AND COUNSEL FOR THE
COMMISSION HAVE ESTIMATED, THAT THE RATE OF RETURN "ON AVERAGE QUALITY"
NATURAL GAS SOLD IN THE PERMIAN BASIN MIGHT, AFTER QUALITY
ADJUSTMENTS, YIELD "AS LITTLE" AS 10 TO 12% ON EQUITY.  /94/  THESE
FIGURES PRESUMABLY MUST BE ADJUSTED UPWARD FOR SALES OF PIPELINE
QUALITY GAS, SALES OF GAS WITH A HIGH BTU CONTENT, AND REVENUE FROM
PLANT LIQUIDS.  EVEN AS ADJUSTED, HOWEVER, THE AGGREGATE RETURN
PERMITTED TO PRODUCERS WILL APPARENTLY EXCEED ONLY SLIGHTLY THAT
CUSTOMARILY ALLOWED PIPELINES, FOR THE QUANTITIES OF PIPELINE QUALITY
AND HIGH BTU CONTENT GAS PRODUCED IN THE PERMIAN BASIN ARE EVIDENTLY
QUITE SMALL.  NEVERTHELESS, THE RECORD BEFORE THE COMMISSION CONTAINED
EVIDENCE SUFFICIENT TO ESTABLISH THAT THESE RATES, AS ADJUSTED, WILL
MAINTAIN THE INDUSTRY'S CREDIT AND CONTINUE TO ATTRACT CAPITAL. 
ALTHOUGH THE COMMISSION'S POSITION MIGHT AT SEVERAL PLACES USEFULLY BE
CLARIFIED, /95/  THE PRODUCERS HAVE NOT SATISFIED THE "HEAVY BURDEN"
PLACED UPON THOSE WHO WOULD SET ASIDE ITS DECISIONS.  /96/

        V. 

WE HAVE CONCLUDED THAT THE VARIOUS SEGMENTS OF THE COMMISSION'S RATE
STRUCTURE DO NOT SEPARATELY EXCEED OR ABUSE ITS AUTHORITY. 
NONETHELESS, CERTAIN OF THE PRODUCERS HAVE ARGUED VIGOROUSLY THAT THE
AGGREGATE REVENUE PERMITTED BY THE RATE STRUCTURE IS, OR MIGHT BE,
INADEQUATE.  THEY URGE THAT THE IMPOSITION OF MAXIMUM PRICES COMPUTED
FROM COMPOSITE COSTS REDUCES CONTRACT PRICES TO A MAXIMUM PREMISED ON A
COST AVERAGE; AND THEY CONCLUDE THAT THE COMMISSION HAS THEREFORE
DENIED THEM THE REVENUE NECESSARY FOR APPROPRIATE PROGRAMS OF
EXPLORATION AND DEVELOPMENT.  RELATED QUESTIONS TROUBLED THE COURT OF
APPEALS.  IT HELD THAT THE COMMISSION MUST, UNDER HOPE, PLACE IN
BALANCE REVENUE AND REQUIREMENTS, AND THAT FINDINGS MUST BE PROVIDED
THAT WILL PERMIT REVIEWING COURTS TO ASSESS THE SKILL WITH WHICH THE
COMMISSION HAS EMPLOYED ITS SCALES.  ALTHOUGH WE SUSTAIN, FOR REASONS
STATED ABOVE, THE COMMISSION'S RATE STRUCTURE, WE BELIEVE IT PROPER TO
EXAMINE THESE ADDITIONAL CONTENTIONS. 

THREE INTERRELATED QUESTIONS ARE PERTINENT.  FIRST, THE ADEQUACY OF
THE COMMISSION'S AGGREGATE REVENUE FINDINGS MUST BE ASSESSED.  SECOND,
WE MUST CONSIDER THE PRODUCERS' CONTENTIONS THAT THE COMMISSION HAS
SIGNIFICANTLY UNDERESTIMATED THE DEFICIENCIES OF PRESENT PROGRAMS OF
EXPLORATION.  FINALLY, WE MUST DETERMINE WHETHER THE COMMISSIONS USE OF
AVERAGE COSTS HAS CREATED A RATE STRUCTURE THAT IS UNJUST AND
UNREASONABLE IN ITS CONSEQUENCES. 

WE TURN INITIALLY TO THE ADEQUACY OF THE COMMISSION'S REVENUE
FINDINGS.  IT MUST BE EMPHASIZED THAT WE PERCEIVE NO IMPERATIVE
OBLIGATION UPON THE COMMISSION, UNDER EITHER THE NATURAL GAS ACT OR THE
DECISIONS OF THIS COURT, TO PROVIDE AN APPARATUS OF FORMAL FINDINGS, IN
TERMS OF ABSOLUTE DOLLAR AMOUNGS, AS TO AGGREGATE REVENUE AND AGGREGATE
REVENUE REQUIREMENTS.  IT IS ENOUGH IF THE COMMISSION PROFFERS FINDINGS
AND CONCLUSIONS SUFFICIENTLY DETAILED TO PERMIT REASONED EVALUATION OF
THE PURPOSES AND IMPLICATIONS OF ITS ORDER.  COMPARE CHICAGO & N.W.R.
CO. V. A. T. & S.F.R. CO., 387 U.S. 326, 345-347.  AS WE SHALL SHOW,
THE COMMISSION'S REVENUE FINDINGS WERE NOT, IN THE CIRCUMSTANCES OF
THESE PROCEEDINGS, UNDULY IMPRECISE.  THE AMBIGUITIES ABOUT WHICH THE
COURT OF APPEALS EXPRESSED CONCERN WERE TWO.  FIRST, THE COURT FAULTED
THE COMMISSION FOR THE IMPRECISION OF ITS FINDINGS AS TO THE REVENUE
CONSEQUENCES OF THE QUALITY AND BTU ADJUSTMENTS.  WE HAVE ALREADY FOUND
ADEQUATE THE COMMISSION'S ESTIMATES OF THE NECESSARY PRICE REDUCTIONS. 
SECOND, THE COURT STATED THAT THE RATE STRUCTURE COULD NOT BE
ACCURATELY ASSESSED, SINCE THE COMMISSION HAS INCORPORATED IN ITS
CALCULATIONS BOTH COST AND NONCOST FACTORS; IT BELIEVED THAT "THE
COMMISSION DECISION RIDES TWO HORSES AND WE HAVE NO WAY OF KNOWING THE
OUTCOME OF THE RACE.  375 F.2D, AT 34. 

WE FIND THIS UNPERSUASIVE.  ALTHOUGH THE COMMISSION'S EXPOSITION OF
THESE QUESIONS MIGHT HAVE BEEN MORE CAREFULLY DRAWN, IT HAS QUITE
APPROPRIATELY INCORPORATED IN ITS CALCULATIONS FACTORS OTHER THAN
PRODUCERS' COSTS.  /97/  COST AND NONCOST FACTORS DO NOT, AS THE COURT
OF APPEALS SUPPOSED, RACE ONE AGAINST THE OTHER; THEY MUST BE, AS THEY
ARE HERE, HARNESSED SIDE BY SIDE.  THE COMMISSION'S RESPONSIBILITIES
NECESSARILY OBLIGE IT TO GIVE CONTINUING ATTENTION TO VALUES THAT MAY
BE REFLECTED ONLY IMPERFECTLY BY PRODUCERS' COSTS; A REGULATORY METHOD
THAT EXCLUDED AS IMMATERIAL ALL BUT CURRENT OR PROJECTED COSTS COULD
NOT PROPERLY SERVE THE CONSUMER INTERESTS PLACED UNDER THE COMMISSION'S
PROTECTION.  WE HAVE ALREADY CONSIDERED EACH OF THE POINTS AT WHICH THE
COMMISSION HAS GIVEN WEIGHT TO NONCOST FACTORS, AND HAVE FOUND ITS
JUDGMENTS CONSISTENT WITH THE TERMS AND PURPOSES OF ITS STATUTORY
AUTHORITY.  /98/  THERE IS NO REASON NOW TO RETURN THESE CASES TO THE
COMMISSION FOR CLARIFICATION OF THESE ISSUES.  /99/ 

NOR CAN WE HOLD THAT THE COMMISSION HAS UNDERESTIMATED THE
DEFICIENCIES OF CURRENT PROGRAMS OF EXPLORATION.  THE PRODUCERS'
ARGUMENT HAS BEEN UNIFORMLY PREMISED UPON THE ASSERTION THAT THE RATIO
OF PROVED RECOVERABLE RESERVES TO CURRENT PRODUCTION IS AN ACCURATE
INDEX OF THE INDUSTRY'S FINANCIAL REQUIREMENTS.  THE PRODUCERS URGE
THAT THIS RATIO HAS DANGEROUSLY DECLINED, /100/  AND CONCLUDE THAT ANY
REDUCTION OF PREVAILING FIELD PRICES WILL JEOPARDIZE ESSENTIAL PROGRAMS
OF EXPLORATION.  THERE IS, HOWEVER, SUBSTANTIAL EVIDENCE THAT ADDITIONS
TO RESERVES HAVE NOT BEEN UNSATISFACTORILY LOW, /101/  AND THAT RECENT
VARIATIONS IN THE RATIO OF RESERVES TO PRODUCTION ARE OF QUITE LIMITED
SIGNIFICANCE.  /102/  NOTHING IN THE RECORD ESTABLISHES AS PROPER OR
EVEN MINIMAL ANY PARTICULAR RATIO.  /103/  WE DO NOT SUGGEST, NOR DID
THE COMMISSION, /104/  THAT THE COMMISSION SHOULD NOT CONTINUOUSLY
ASSESS THE LEVEL AND SUCCESS OF EXPLORATION, OR THAT THE RELATIONSHIP
BETWEEN RESERVES AND PRODUCTION IS NOT A USEFUL BENCHMARK OF THE
INDUSTRY'S FUTURE.  WE HOLD ONLY THAT THE COMMISSION HERE PERMISSIBLY
DISCOUNTED THE PRODUCERS'  RELIANCE UPON THIS RELATIONSHIP TO ESTABLISH
THE INADEQUACY OF ITS RATE STRUCTURE. 

FINALLY, WE TURN TO THE CONTENTION THAT THESE AREA MAXIMUM RATES
WERE DERIVED FROM AVERAGED COSTS, AND THEREFORE CANNOT, WITHOUT FURTHER
ADJUSTMENT, PROVIDE AGGREGATE REVENUE EQUAL TO THE PRODUCERS' AGGREGATE
REQUIREMENTS.  THE PRODUCERS THAT SUPPORT THE JUDGMENTS BELOW EMPHASIZE
THAT REVENUE IN 1960 FROM ALL JURISDICTIONAL SALES IN THE PERMIAN BASIN
AVERAGED 12.72[ PER MCF.  /105/  THEY CONTEND THAT THIS REVENUE WILL,
UNDER THE COMMISSION'S ORDER, BE REDUCED BY THE AMOUNT OF ANY NECESSARY
QUALITY DEDUCTIONS, BY REFUNDS, AND BY LOSS OF REVENUE FROM ABROGATION
OF CONTRACT PRICES ABOVE THE AREA MAXIMUM RATES.  THE PRODUCER CONCLUDE
THAT THE COMMISSION'S RATE STRUCTURE WILL NECESSARILY CAUSE REVENUE
DEFICIENCIES, MEASURED BY THE DIFFERENCE BETWEEN ACTUAL AVERAGE REVENUE
(12.72[ LESS THESE ADJUSTMENTS) AND 14.5[ PER MCF, THE RATE ASSERTEDLY
FOUND BY THE COMMISSION TO BE JUST AND REASONABLE FOR FLOWING GAS. 
THEY URGED THAT THE COMMISSION WAS PROPERLY OBLIGED TO BALANCE REVENUE
AND COSTS EITHER BY INCREASING THE AREA MINIMUM RATE, OR BY PLACING THE
AREA MAXIMUM RATES ABOVE AVERAGE COSTS. 

THE INADEQUACIES OF THIS REASONING ARE SEVERAL.  FIRST, IT NEGLECTS
IMPORTANT CHARACTERISTICS OF THE RATE STRUCTURE.  WE UNDERSTAND THE
COMMISSION, DESPITE CERTAIN INFELICITIES OF ITS OPINION, /106/  TO HOLD
THAT THE JUST AND REASONABLE RATE FOR OLD GAS NOT OF PIPELINE QUALITY
IS 14.5[ PER MCF, LESS THE COST OF PROCESSING NECESSARY TO RAISE IT TO
PIPELINE QUALITY.  THE COMMISSION'S NET JUST AND REASONABLE RATE FOR
SUCH GAS IS THEREFORE 13.0 CENTS TO 13.8[, AND NOT 14.5[ PER MCF. 
/107/ FURTHER, AVERAGE UNIT REVENUE WILL NOT BE SIMULTANEOUSLY REDUCED,
AS THE PRODUCERS HAVE SUGGESTED, BY REFUNDS AND BY ABROGATION OF ABOVE
CEILING FIELD PRICES.  AS TO THE PAST, THE TWO ARE IN LARGE PART
SYNONYMOUS; AS TO THE FUTURE, ONLY THE LATTER WILL BE APPLICABLE. 

MOREOVER, THE COMMISSION'S COMPUTATION OF ITS AREA RATES WAS NOT
INTENDED TO REFLECT WITH COMPLETE FIDELITY EITHER THE PRODUCERS'
AVERAGE COSTS OR THEIR SOURCES OF REVENUE.  FIRST, THE ACTUAL AVERAGE
UNIT COSTS OF CASINGHEAD AND RESIDUE GAS ARE SUBSTANTIALLY LOWER THAN
THE AVERAGE UNIT COSTS OF FLOWING GAS-WELL GAS; /108/  YET THE MAXIMUM
RATE FOR ALL ASSOCIATED AND FLOWING GAS WAS DERIVED ENTIRELY FROM THE
LATTER.  IT FOLLOWS THAT THE PRODUCERS' NET REVENUES FROM SALES OF
CASINGHEAD AND RESIDUE GAS WILL PROVE HIGHER THAN THE RETURN FORMALLY
PERMITTED BY THE COMMISSION.  SECOND, PRODUCERS RECEIVE SIGNIFICANT
PAYMENTS FOR LIQUID HYDROCARBONS EXTRACTED BY THE PIPELINES DURING
THEIR PROCESSING OF GAS-WELL GAS.  /109/  THE MAXIMUM RATE FOR NEW GAS
WELL GAS EVIDENTLY TAKES INTO ACCOUNT ONLY PART OF THESE RECEIPTS, AND
THAT FOR OLD GAS-WELL GAS DISREGARDS ALTOGETHER THIS SOURCE OF
ADDITIONAL REVENUE.  /110/  THIRD, SOME 20% OF ALL THE GAS SOLD UNDER
THE COMMISSION'S JURISDICTION IN THE PERMIAN BASIN IS CONTROLLED BY
SPRABERRY CONTRACTS, BY WHICH PRODUCERS ARE PAID FOR LIQUIDS PROCESSED
BY THE PIPELINES FROM OIL-WELL GAS.  /111/  MUCH OF THE GAS SOLD AT
PRICES BELOW THE APPLICABLE AREA MAXIMUM RATE IS GOVERNED BY SUCH
CONTRACTS.  /112/  THIS SOURCE OF REVENUE WAS NOT INCORPORATED IN THE
COMMISSION'S CALCULATION OF THE MAXIMUM RATE FOR OIL-WELL GAS.  THE
COMMISSION WAS UNABLE TO COMPUTE WITH PRECISION THE REVENUE OBTAINED BY
PRODUCERS FROM THESE DISPARATE SOURCES, BUT IT ESTIMATED IT TO BE
"SUBSTANTIAL."  34 F.P.C., AT 1073. 

FINALLY, THE PRODUCERS HAVE IGNORED THE LIMITS OF THE COMMISSION'S
STATUTORY AUTHORITY.  THIS COURT HAS HELD, UNDER THE FEDERAL POWER ACT,
THAT THE COMMISSION MAY NOT ABROGATE EXISTING CONTRACTUAL ARRANGEMENTS
UNLESS THE CONTRACT PRICE IS SO "LOW AS TO ADVERSELY AFFECT THE PUBLIC
INTEREST-- AS WHERE IT MIGHT IMPAIR THE FINANCIAL ABILITY OF THE PUBLIC
UTILITY TO CONTINUE ITS SERVICE, CAST UPON OTHER CONSUMERS AN EXCESSIVE
BURDEN, OR BE UNDULY DISCRIMINATORY."  FPC V. SIERRA PACIFIC POWER CO.,
350 U.S. 348, 355.  IT IS NOT ENOUGH, THE COURT THERE HELD, THAT THE
CONTRACT PRICE PERMITS LESS THAN A FAIR RETURN; THE COMMISSION MAY NOT,
ABSENT EVIDENCE OF INJURY TO THE PUBLIC INTEREST, RELIEVE A REGULATED
COMPANY OF "ITS IMPROVIDENT BARGAIN."  IBID.  THE PERTINENT PROVISIONS
OF THE FEDERAL POWER ACT "ARE IN ALL MATERIAL RESPECTS SUBSTANTIALLY
IDENTICAL TO THE EQUIVALENT PROVISIONS OF THE NATURAL GAS ACT."  ID.,
AT 353.  IT FOLLOWS THAT THE COMMISSION WAS HERE WITHOUT AUTHORITY TO
ABROGATE EXISTING CONTRACT PRICES UNLESS IT FIRST CONCLUDED THAT THEY
"ADVERSELY AFFECT THE PUBLIC INTEREST."  AND SEE FPC V. TENNESSEE GAS
CO., 371 U.S. 145, 153.  THE COMMISSION FOUND THAT FIELD PRICES OF LESS
THAN 9[ PER MCF HAD SUCH CONSEQUENCES, BUT IT DECLINED SO TO HOLD FOR
ALL PRICES LESS THAN THE TWO AREA MAXIMUM RATES.  /113/  THERE WAS NO
EVIDENCE BEFORE THE COMMISSION THAT REQUIRED A DIFFERENT RESULT, OR
THAT WOULD NOW PERMIT THIS COURT TO SET ASIDE THE COMMISSION'S
JUDGMENT. 

IT DOES NOT, HOWEVER, NECESSARILY FOLLOW THAT THE COMMISSION WAS
FORBIDDEN TO CONSIDER, AS IT SELECTED MAXIMUM RATES WITHIN THE ZONE OF
REASONABLENESS, THE AGGREGATE REVENUE DEFICIENCIES THAT MIGHT RESULT
FROM IMPROVIDENT CONTRACTUAL LIMITATIONS.  WITHIN THIS ZONE, THE
COMMISSION IS PERMITTED TO GIVE WEIGHT TO THE CONSEQUENCES UPON
PRODUCERS, AND THEREBY UPON SUPPLY, OF SUCH LIMITATIONS.  NONETHELESS,
THE COMMISSION PERMISSIBLY DECLINED TO MAKE ADJUSTMENTS IN THE AREA
RATES BECAUSE OF PREVAILING CONTRACT PRICES.  IT RECOGNIZED THAT SUCH
ADJUSTMENTS WOULD INCREASE THE COST OF NATURAL GAS TO SOME GROUPS OF
CONSUMERS, IN ORDER SIMPLY TO OFFSET BARGAINS PREVIOUSLY OBTAINED BY
OTHERS. 

THE REGULATORY SYSTEM CREATED BY THE ACT IS PREMISED ON CONTRACTUAL
AGREEMENTS VOLUNTARILY DEVISED BY THE REGULATED COMPANIES; IT
CONTEMPLATES ABROGATION OF THESE AGREEMENTS ONLY IN CIRCUMSTANCES OF
UNEQUIVOCAL PUBLIC NECESSITY.  SEE UNITED GAS CO. V. MOBILE GAS CORP.,
350 U.S. 332.  THERE WAS HERE NOEVIDENCE OF FINANCIAL OR OTHER
DIFFICULTIES THAT REQUIRED THE COMMISSION TO RELIEVE THE PRODUCERS,
EVEN OBLIQUELY, FROM THE BURDENS OF THEIR CONTRACTUAL OBLIGATIONS.  WE
DO NOT SUGGEST THAT THE COMMISSION NEED NOT CONTINUOUSLY EVALUATE THE
REVENUE AND OTHER CONSEQUENCES OF ITS AREA RATE STRUCTURES.  A
PRINCIPAL ADVANTAGE OF AREA REGULATION IS THAT IT CENTERS ATTENTION
UPON THE INDUSTRY'S AGGREGATE PROBLEMS, AND WE MAY EXPECT THAT, AS THE
COMMISSION'S EXPERIENCE WITH AREA REGULATION LENGTHENS, IT WILL TREAT
THESE IMPORTANT QUESTIONS MORE PRECISELY AND EFFICACIOUSLY.  WE HOLD
ONLY THAT, IN THE CIRCUMSTANCES HERE PRESENTED, THE COMMISSION'S RATE
STRUCTURE HAS NOT BEEN SHOWN TO DENY PRODUCERS REVENUES CONSONANT WITH
JUST AND REASONABLE RATES.  /114/

        VI. 

THERE REMAIN FOR CONSIDERATION VARIOUS ADDITIONAL OBJECTIONS BY THE
PRODUCERS TO THE COMMISSION'S COST DETERMINATIONS, AND TO THE SOURCES
OF INFORMATION FROM WHICH THOSE DETERMINATIONS WERE DERIVED.  THESE
QUESTIONS WERE NOT DECIDED BY THE COURT OF APPEALS.  ALTHOUGH THIS
COURT ORDINARILY DOES NOT REVIEW AN ADMINISTRATIVE RECORD IN THE FIRST
INSTANCE, UNITED STATES V. GREAT NORTHERN R. CO., 343 U.S. 562, 578;
SEABOARD AIR LINE R. CO. V. UNITED STATES, 382 U.S. 154, 157; THERE ARE
PERSUASIVE REASONS NOW TO REACH AND DECIDE THESE REMAINING ISSUES. 
ALMOST EIGHT YEARS HAVE ELAPSED SINCE THE COMMISSION COMMENCED THESE
PROCEEDINGS; WE ARE CONVINCED THAT PRODUCERS' RATES MAY BE FAIRLY AND
EFFECTIVELY REGULATED ONLY AFTER THIS AND THE OTHER AREA PROCEEDINGS
NOW BEFORE THE COMMISSION HAVE BEEN SUCCESSFULLY TERMINATED.  THESE
ISSUES WERE BRIEFED AND ARGUED AT LENGTH BEFORE THIS COURT; VERY
EXTENDED ADDITIONAL PROCEEDINGS WOULD DOUBTLESS BE NECESSARY IN ORDER
TO REVIEW THEM YET AGAIN. 

MOREOVER, THE CIRCUMSTANCES HERE PARALLEL CLOSELY THOSE IN CHICAGO &
N.W.R. CO. V. A., T. & S.F.R. CO., 387 U.S. 326.  IT WAS THERE SAID
THAT THE PRESENTATION AND DISCUSSION OF EVIDENCE ON COST ISSUES
CONSTITUTED A DOMINANT PART OF THE LENGTHY ADMINISTRATIVE HEARINGS, AND
THE ISSUES WERE THOROUGHLY EXPLORED AND CONTESTED BEFORE THE
COMMISSION.  ITS FACTUAL FINDINGS AND TREATMENT OF ACCOUNTING PROBLEMS
CONCERNED MATTERS RELATING ENTIRELY TO THE SPECIAL AND COMPLEX
PECULIARITIES OF THE RAILROAD INDUSTRY.  OUR PREVIOUS DESCRIPTION OF
THE COMMISSION'S DISPOSITION OF THESE MATTERS IS SUFFICIENT TO SHOW
THAT ITS CONCLUSIONS HAD REASONED FOUNDATION AND WERE WITHIN THE AREA
OF ITS EXPERT JUDGMENT."  ID., AT 356.  THIS REASONING IS ENTIRELY
APPLICABLE TO THE CIRCUMSTANCES PRESENTED HERE; WE HOLD, AS DID THE
COURT THERE, THAT NO USEFUL PURPOSE WOULD BE SERVED BY FURTHER
PROCEEDINGS IN THE COURT OF APPEALS, AND THAT THERE IS NO LEGAL
INFIRMITY IN THE COMMISSION'S FINDINGS.  /115/

        VII. 

LASTLY, WE REACH QUESTIONS OF THE VALIDITY OF THE REFUND OBLIGATIONS
IMPOSED BY THE COMMISSION'S ORDERS.  TWO CATEGORIES OF REFUNDS WERE
CREATED.  FIRST, PRODUCERS MUST RETURN AMOUNTS CHARGED IN EXCESS OF THE
APPLICABLE AREA RATES, INCLUDING QUALITY AND BTU ADJUSTMENTS, FOR
PERIODS FOLLOWING SEPTEMBER 1, 1965, THE DATE OF EFFECTIVENESS OF THE
COMMISSION'S ORDER.  34 F.P.C., AT 243.  THE COMMISSION IMPOSED
INTEREST OF 7% UPON THESE REFUNDS.  /116/  SECOND, PRODUCERS MUST
REFUND AMOUNTS COLLECTED IN EXCESS OF THE APPLICABLE AREA RATES,
INCLUDING QUALITY AND BTU ADJUSTMENTS, DURING PREVIOUS PERIODS IN WHICH
THEIR PRICES WERE SUBJECT TO REFUND UNDER SEC. 4(E) SUCH OBLIGATIONS
ULTIMATELY ARISE FROM FILINGS BY THE PRODUCERS UNDER SEC. 4(D) FOR
INCREASES IN EXISTING PRICE SCHEDULES.  THE APPROPRIATE INTEREST ON
THESE REFUNDS WAS HELD TO BE THAT SPECIFIED IN EACH SEC. 4(E)
PROCEEDING.  /117/  REFUNDS IN BOTH CATEGORIES WERE, UNDER THE
COMMISSION'S ORDER, TO BE MEASURED BY COMPARISON OF INDIVIDUAL COMPANY
PRICE SCHEDULES WITH THE APPLICABLE AREA RATES. 

THE COURT OF APPEALS INITIALLY SUSTAINED THE COMMISSION'S REFUND
ORDERS.  375 F.2D, AT 33.  ON PETITIONS FOR REHEARING, HOWEVER, THE
COURT HELD THAT "NO REFUND OBLIGATION MAY BE IMPOSED FOR A PERIOD IN
WHICH THERE IS A GROUP REVENUE DEFICIENCY."  ID., AT 36.  THE COURT
BELIEVED THIS TO BE AN ESSENTIAL COROLLARY OF THE COMMISSION'S ASSERTED
OBLIGATION TO BRING INTO BALANCE GROUP COSTS AND GROUP REVENUES; IT
WOULD HAVE PERMITTED THE COMMISSION TO ORDER REFUNDS ONLY IN PERIODS IN
WHICH AGGREGATE REVENUE IS FOUND TO EXCEED AGGREGATE REVENUE
REQUIREMENTS, AND ONLY AS TO THE AMOUNT OF THE EXCESS.  THE COMMISSION
WAS EXPECTED TO APPORTION ANY REFUNDS "ON SOME EQUITABLE CONTRACT-BY
CONTRACT BASIS."  IBID. 

WE FIND THE COURTS REASONING UNPERSUASIVE.  THE COMMISSION MAY, IN
THE COURSE OF ITS EXAMINATION OF THE PRODUCERS' FINANCIAL POSITIONS,
CONSIDER THE POSSIBLE REFUND CONSEQUENCES OF ITS RATE-MAKING ORDERS;
BUT ITS POWER TO ORDER REFUNDS IS NOT LIMITED TO SITUATIONS IN WHICH
GROUP REVENUES EXCEED GROUP REVENUE REQUIREMENTS.  AREA REGULATION
OFFERS A MORE EXPEDITIOUS METHOD FOR THE CALCULATION OF JUST AND
REASONABLE RATES, AND IT WILL NECESSARILY MORE RIGOROUSLY FOCUS THE
COMMISSION'S ATTENTION UPON THE PRODUCERS' COMMON PROBLEMS.  IT DOES
NOT, HOWEVER, LESSEN THE SIGNIFICANCE, OR MODIFY THE INCIDENTS, OF
FINDINGS THAT SPECIFIC RATE LEVELS ARE OR ARE NOT JUST AND REASONABLE
WITHIN THE MEANING OF SECS. 4(A) AND 5(A).  A RATE FOUND TO BE UNJUST
AND UNREASONABLE IS DECLARED BY SEC. 4(A) TO BE UNLAWFUL; IF THE RATE
HAS BEEN THE SUBJECT OF A RATE SCHEDULE MODIFICATION UNDER SEC. 4(D),
THE COMMISSION IS EMPOWERED BY SEC. 4(E) TO ORDER ITS REFUND.  WE CAN
SEE NO WARRANT, EITHER IN THE ACT OR IN THE TERMS OF THE COMMISSION'S
ORDERS, NOW TO IMPOSE ANY ADDITIONAL LIMITATIONS UPON THE COMMISSION'S
AUTHORITY; WE HOLD THAT THE COMMISSION'S DISCRETION IS NOT CONSTRICTED
IN THE FASHION DESCRIBED BY THE COURT OF APPEALS. 

WISCONSIN V. FPC, SUPRA, DOES NOT REQUIRE A DIFFERENT RESULT.  IT
DID NOT, AS THE COURT OF APPEALS EVIDENTLY SUPPOSED, CREATE ANY
IMPERATIVE PROCEDURE FOR THE DISPOSITION OF REFUNDS FROM LOCKED-IN
RATES.  /118/  THE COMMISSION THERE HELD THAT, GIVEN ITS DECISION TO
BEGIN A SYSTEM OF AREA REGULATION, IT WAS NOT IN THE PUBLIC INTEREST
"TO REOPEN THESE PROCEEDINGS, TO DETERMINE A COST OF SERVICE ON THE
BASIS OF COMPLETELY NEW EVIDENCE AND TO ATTEMPT TO DETERMINE RATES ON
THE BASIS OF PHILLIPS' INDIVIDUAL COST OF SERVICE."  24 F.P.C., AT
1009.  NO JUST AND REASONABLE RATES HAD BEEN, OR COULD THEN HAVE BEEN,
CALCULATED FOR PHILLIPS' SALES IN THE RELEVANT PERIODS.  THE COMMISSION
DID NOT URGE, /119/  AND THIS COURT DID NOT HOLD, THAT PHILLIPS'
REVENUE DEFICIENCIES IMPOSED A LIMITATION UPON THE COMMISSION'S
AUTHORITY TO REQUIRE REFUNDS; THE COURT MERELY SUSTAINED THE
COMMISSION'S REFUSAL, IN THE CIRCUMSTANCES THERE PRESENTED, TO PURSUE
FURTHER A LENGTHY AND BURDENSOME SERIES OF SEC. 4(E) PROCEEDINGS.  SEE
ALSO HUNT OIL CO., 28 F.P.C. 623; AND WISCONSIN V. FPC, SUPRA, AT 306,
N. 15. 

THE COMMISSION REASONABLY CONCLUDED THAT THE ADOPTION OF A SYSTEM OF
REFUNDS CONDITIONED ON FINDINGS AS TO AGGREGATE AREA REVENUES WOULD
PROVE BOTH INEQUITABLE TO CONSUMERS AND DIFFICULT TO ADMINISTER
EFFECTIVELY.  SUCH ARRANGEMENTS WOULD REQUIRE CONSUMERS TO ACCEDE TO
UNJUST AND UNREASONABLE PRICES MERELY BECAUSE OTHER PRICES, PERHAPS
ULTIMATELY BENEFITING OTHER CONSUMERS, HAD PROVED IMPROVIDENT.  NOR
WOULD THESE ARRANGEMENTS NECESSARILY SERVED THE INTERESTS OF THE
IMPROVIDENT PRODUCERS; THEY MIGHT MERELY PERMIT MORE PRUDENT
COMPETITORS TO ESCAPE REFUNDS ON CONCEDEDLY UNLAWFUL PRICES.  /120/  WE
HOLD THAT THE COMMISSION'S REFUND ORDERS DO NOT EXCEED OR ABUSE ITS
STATUTORY AUTHORITY.  /21/ 

THE MOTIONS FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE ARE DENIED, THE
JUDGMENT OF THE COURT OF APPEALS ARE AFFIRMED IN PART AND REVERSED IN
PART, AS HEREIN INDICATED, AND THE CASES ARE REMANDED TO THAT COURT FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1A/  NO. 90, CONTINENTAL OIL COM. ET AL. V. FEDERAL POWER
COMMISSION; NO. 95, SUPERIOR OIL CO. V. FEDERAL POWER COMMISSION; NO.
98, NEW MEXICO ET AL. A. FEDERAL POWER COMMISSION; NO. 99, SUN OIL CO.
V. FEDERAL POWER COMMISSION ET AL.; NO 100, CALIFORNIA ET AL V. SKELLY
OIL CO. ET AL.; NO. 101, HUNT OIL CO. ET AL. V. FEDERAL POWER
COMMMISSION; NO. 102, PACIFIC GAS & ELECTRIC CO. ET AL. V. SKELLY OIL
CO. ET AL.; NO. 105, BASS ET AL. V. FEDERAL POWER COMMISSION; NO. 117
FEDERAL POWER COMMISSION V. SKELLY OIL CO. ET AL.; NO 181, CITY OF LOS
ANGELES V. SKELLY OIL CO. ET AL; NO. 261, CITY AND COUNTY OF SAN
FRANCISCO V. SKELLY OIL CO. ET AL.; NO. 262, CITY OF SAN DIEGO V.
SKELLY OIL CO. ET AL.; NO. 266, STANDARD OIL CO. OF TEXAS, A DIVISION
OF CHEVRON OIL CO. V. FEDERAL POWER COMMISSION; AND NO. 388, MOBILE OIL
CORP. ET AL. V. FEDERAL POWER COMMISSION. 

/1B/  SECTION 5(A) PROVIDES IN PERTINENT PART THAT "WHENEVER THE
COMMISSION, AFTER A HEARING HAD UPON ITS OWN MOTION OR UPON COMPLAINT
OF ANY STATE, MUNICIPALITY, STATE COMMISSION, OR GAS DISTRIBUTING
COMPANY, SHALL FIND THAT ANY RATE, CHARGE, OR CLASSIFICATION DEMANDED,
OBSERVED, CHARGED, OR COLLECTED BY ANY NATURAL-GAS COMPANY IN
CONNECTION WITH ANY TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO
THE JURISDICTION OF THE COMMISSION, OR THAT ANY RULE, REGULATION,
PRACTICE, OR CONTRACT AFFECTING SUCH RATE, CHARGE, OR CLASSIFICATION IS
UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR PREFERENTIAL, THE
COMMISSION SHALL DETERMINE THE JUST AND REAONSABLE RATE, CHARGE,
CLASSIFICATION, RULE, REGULATION, PRACTICE, OR CONTRACT TO BE
THEREAFTER OBSERVED AND IN FORCE, AND SHALL FIX THE SAME BY ORDER . . .
. " 

/2/  SECTION 1(B), 15 U.S.C. 717(B), PROVIDES IN PART THAT THE
"PROVISIONS OF THIS CHAPTER SHALL APPLY . . . TO THE SALE IN INTERSTATE
COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR
DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE . . . . "  WE SHALL,
FOR CONVENIENCE, HEREAFTER DESCRIBE SALES WITHIN THE COMMISSION'S
REGULATORY AUTHORITY AS "JURISDICTIONAL" OR "INTERSTATE" SALES. 

/3/  THE PERMIAN BASIN WAS DEFINED BY THE COMMISSION'S ORDER
COMMENCING THESE PROCEEDINGS SO AS TO INCLUDE TEXAS RAILROAD COMMISSION
DISTRICT NOS. 7-C AND 8, AND THE NEW MEXICO COUNTIES OF LEA, EDDY, AND
CHAVES.  AREA RATE PROCEEDING NO. AR61-1, 24 F.P.C. 1121, 1125. 

/4/  THERE WERE SOME 384 PARTIES BEFORE THE COMMISSION, INCLUDING
336 GAS PRODUCERS.  HEARINGS BEGAN ON OCTOBER 11, 1961, AND CLOSED ON
SEPTEMBER 10, 1963.  THE FINAL TRANSCRIPT INCLUDED MORE THAN 30,000
PAGES.  THE EXAMINER'S DECISION WAS ISSUED ON SEPTEMBER 17, 1964.  THE
COMMISSION HEARD THREE DAYS OF ORAL ARGUMENT, AND ISSUED ITS DECISION
ON AUGUST 5, 1965.  A SUPPLEMENTARY OPINION DENYING APPLICATIONS FOR
REHEARING WAS ISSUED ON OCTOBER 4, 1965. 

/5/  INDEED, SEC. 1(B), 15 U.S.C. 717(B), PROVIDES IN PART THAT THE
"PROVISIONS OF THIS CHAPTER . . . SHALL NOT APPLY TO . . . THE
PRODUCTION OR GATHERING OF NATURAL GAS." 

/6/  INDEPENDENT PRODUCERS ARE THOSE THAT DO "NOT ENGAGE IN THE
INTERSTATE TRANSMISSION OF GAS FROM THE PRODUCING FIELDS TO CONSUMER
MARKETS AND (ARE) NOT AFFILIATED WITH ANY INTERSTATE NATURAL-GAS
PIPELINE COMPANY."  PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672,
675. 

/7/  THIS POSITION WAS FIRST ADOPTED BY THE COMMISSION IN COLUMBIAN
FUEL CORP., 2 F.P.C. 200.  SEE ALSO BILLINGS GAS CO., 2 F.P.C. 288; FIN
KER OIL & GAS PRODUCTION CO., 6 F.P.C. 92; TENNESSEE GAS & TRANSMISSION
CO., 6 F.P.C. 98. 

/8/  SECTION 4(A), 15 U.S.C. 717CA), PROVIDES THAT "ALL RATES AND
CHARGES MADE, DEMANDED OR RECEIVED BY ANY NATURAL-GAS COMPANY FOR OR IN
CONNECTION WITH THE TRANSPORTATION OR SALE OF NATURAL GAS SUBJECT TO
THE JURISDICTION OF THE COMMISSION, AND ALL RULES AND REGULATIONS
AFFECTING OR PERTAINING TO SUCH RATES OR CHARGES, SHALL BE JUST AND
REASONABLE, AND ANY SUCH RATE OR CHARGE THAT IS NOT JUST AND REASONABLE
IS HEREBY DECLARED TO BE UNLAWFUL." 

/9/  SEE GENERALLY PHILLIPS PETROLEUM CO., 24 F.P.C. 537, 542. 

/10/  IT HAS BEEN OBSERVED THAT COSTS-OF-SERVICE STANDARDS ARE "MOST
GENERALLY ACCEPTED IN THE REGULATION OF THE LEVELS OF RATES" CHARGED BY
BOTH PUBLICLY AND PRIVATELY OWNED UTILITIES.  J. BONBRIGHT, PINCIPLES
OF PUBLIC UTILITY RATES 67 (1961). 

/11/  IT HAS BEEN SAID THAT "THE PRIMARY, EVEN THOUGH NOT THE SOLE,
DISTINGUISHING FEATURE OF A PUBLIC UTILITY ENTERPRISE IS TO BE FOUND IN
A TECHNOLOGY OFPRODUCTION AND TRANSMISSION WHICH ALMOST INEVITABLY
LEADS TO A COMPLETE OR PARTIAL MONOPOLY OF THE MARKET FOR THE
SERVICE."  BONBRIGHT, SUPRA, AT 10.  SEE ALSO SUNRAY OIL CO. V. FPC,
364 U.S. 137, 160 (DISSENTING OPINION). 

/12/ THE COMMISSION IN ITS SECOND PHILLIPS OPINION STATED THAT THERE
WERE THEN 3,372 INDEPENDENT PRODUCERS WITH RATES ON FILE; THESE
PRODUCERS HAD ON FILE 11,091 RATE SCHEDULES AND 33,231 SUPPLEMENTS OF
THOSE SCHEDULES.  THERE WERE, AT THE MOMENT OF THE COMMISSION'S
OPINION, 570 PRODUCERS INVOLVED IN 3,278 RATE INCREASE FILINGS AWAITING
HEARINGS AND DECISIONS.  24 F.P.C., AT 545.  SEE FOR LISTINGS BY SALES
OF NATURAL GAS PRODUCERS, FEDERAL POWER COMMISSION, SALES BY PRODUCERS
OF NATURAL GAS TO NATURAL GAS PIPELINE COMPANIES 1963, 1 (1965). 

/13/  THE COMMISSION STATED IN ITS SECOND PHILLIPS OPINION THAT "IF
OUR PRESENT STAFF WERE IMMEDIATELY TRIPLED, AND IF ALL NEW EMPLOYEES
WOULD BE AS COMPETENT AS THOSE WE NOW HAVE, WE WOULD NOT REACH A
CURRENT STATUS IN OUR INDEPENDENT PRODUCER RATE WORK UNTIL 2043 A.D.--
EIGHTY-TWO AND ONE HALF YEARS FROM NOW."  24 F.P.C., AT 546.  IT ADDED
THAT IF "THE PLAN OF RATE REGULATION WERE HERE ANNOUNCE IS NOW LAWFUL,"
IT WOULD FOLLOW THAT "AS A PRACTICAL MATTER, ADEQUATE REGULATION OF
PRODUCERS APPEARS TO BE IMPOSSIBLE UNDER EXISTING LAW."  ID., AT 547. 

/14/  LANDIS, REPORT ON REGULATORY AGENCIES TO THE PRESIDENT-ELECT,
PRINTED FOR USE OF THE SENATE COMMITTEE ON THE JUDICIARY, 86TH CONG.,
2D SESS., 54.  CONTRAST LANDIS, THEORETICAL AND PRACTICAL
CONSIDERATIONS WITH REFERENCE TO PRICE REGULATION IN PRODUCTION AND
TRANSMISSION OF NATURAL GAS, 13TH OIL & GAS INST.  401, 406 (1962). 

/15/  PHILLIPS PETROLEUM CO., SUPRA, AT 542-548. 

/16/  ID., AT 547; STATEMENT OF GENERAL POLICY NO. 61-1, 24 F.P.C.
818. 

/17/  AREA RATE PROCEEDING (HUGOTON-ANADARKO AREA) NO. AR64-1, 30
F.P.C. 1354, 1359 (DISSENTING OPINION OF COMMISSIONER ROSS). 

/18/  WE ARE INFORMED THAT FOUR OTHER AREA PROCEEDINGS ARE PENDING
IN VARIOUS STAGES BEFORE THE COMMISSION.  THESE, IN COMBINATION WITH
THE PRESENT PROCEEDING, REACH SOME 90% OF THE SALES OF NATURAL GAS
SUBJECT TO THE COMMISSION'S JURISDICTION.  BRIEF FOR THE FEDERAL POWER
COMMISSION 14-15. 

/19/  PHILLIPS PETROLEUM CO., SUPRA, AT 548. 

/20/  IT IS PROPER TO NOTE THAT CERTAIN OF THE COMMISSION'S
STATEMENTS IN PHILLIPS CONCERNING THE DIFFICULTIES OF UNIT COST
COMPUTATIONS DO NOT APPEAR TO HAVE BEEN ENTIRELY REAFFIRMED IN ITS
OPINION IN THESE PROCEEDINGS, THE TWO OPINIONS ARE, HOWEVER, BROADLY
CONSISTENT, AND THE COMMISSION IS NOT, IN ANY EVENT, FORBIDDEN "TO
ADAPT (ITS) RULES AND PRACTICES TO THE NATION'S NEEDS IN A VOLATILE,
CHANGING ECONOMY."  AMERICAN TRUCKING V. A., T. & S.F.R. CO., 387 U.S.
397, 416. 

/21/  THE STATEMENT PROVIDED SEPARATE GUIDELINE PRICES FOR INITIAL
FILINGS AND FOR INCREASED RATES.  THE COMMISSION SAID MERELY THAT
"PRICES IN NEW CONTRACTS ARE, AND IN MANY CASES BY VIRTUE OF ECONOMIC
FACTORS, MUST BE HIGHER THAN THE PRICES CONTAINED IN OLD CONTRACTS." 
24 F.P.C., AT 819.  THE GUIDELINE PRICES APPLICABLE TO THE PRODUCING
AREAS SUBSEQUENTLY INCLUDED IN THESE PROCEEDINGS WERE IN EACH CASE 16[
AND 11[ PER MCF, WITH THE HIGHER PRICE FOR INITIAL FILINGS. 

/22/  STATEMENT OF GENERAL POLICY NO. 61-1, SUPRA, AT 818. 

/23/  THE COMMISSION DEFINED GAS-WELL GAS AS "GAS FROM DRY GAS
RESERVOIRS AND GAS CONDENSATE RESERVOIRS, AND GAS FROM GAS-CAP WELLS." 
IT ADDED THAT GAS-CAP GAS IS "A SPECIAL CATEGORY OF GAS FROM AN OIL
RESERVOIR THAT CAN BE PRODUCED FREE FROM THE INFLUENCE OF OIL
PRODUCTION."  34 F.P.C. 159, 189 AND N. 23.  RESIDURE GAS DERIVED FROM
NEW GAS-WELL GAS IS ALSO TO BE SUBJECT TO HIGHER MAXIMUM RATE.  SEE
ID., AT 211. 

/24/  NATURAL GAS IS VARIOUSLY CLASSIFIED, AND CERTAIN OF THE
DESCRIPTIVE NAMES THAT WILL BE EMPLOYED IN THIS OPINION SHOULD BE
BRIEFLY EXPLAINED.  CASINGHEAD GAS IS "THE COMMON NAME FOR GAS PRODUCED
FROM OIL WELLS IN CONJUNCTION WITH THE PRODUCTION OF OIL."  34 F.P.C.,
AT 208.  RESIDURE GAS IS "THE GAS REMAINING AFTER CASINGHEAD GAS OR GAS
WELL GAS HAS BEEN PROCESSED TO REMOVE LIQUIDS PRESENT IN THE RAW GAS
STREAM IN THE FORM OF VAPOR OR DROPLETS."  ID., AT 210.  ASSOCIATED GAS
IS "(FREE NATURAL GAS IN IMMEDIATE CONTACT, BUT NOT IN SOLUTION, WITH
CRUDE OIL IN THE FIELD OR RESERVOIR."  AMERICAN GAS ASSOCIATION, 1966
GAS FACTS 246 (1966).  DISSOLVED GAS IS THAT "IN SOLUTION WITH CRUDE
OIL IN THE RESERVOIR."  IBID.  OIL-WELL GAS ENCOMPASSES ASSOCIATED,
DISSOLVED, AND CASINGHEAD GAS, TOGETHER WITH RESIDUE DERIVED FROM
CASINGHEAD GAS.  IN ADDITION, WE SHALL ADOPT THE COMMISSION'S USAGE,
AND ON OCCASIION DESCRIBE GAS SUBJECT TO THE LOWER MAXIMUM RATE AS
"OLD" OR "FLOWING" GAS.  34 F.P.C., AT 212, N. 31. 

/25/  JOINT COSTS "ARE INCURRED WHEN PRODUCTS CANNOT BE SEPARATELY
PRODUCED . . . . "  COMPARE THE FOLLOWING:  "PRODUCTS ARE 'TRULY JOINT'
IF THEY MUST BE PRODUCED TOGETHER AND IN CONSTANT PROPORTIONS.  TRULY
JOINT COSTS ARE VARIABLE COSTS.  THEY VARY (AS A TOTAL) WITH THE OUTPUT
OF THE ENTIRE SET (FIXED COMBINATION) OF JOINT PRODUCTS."  F. MACHLUP,
THE ECONOMICS OF SELLERS' COMPETITION 21 (1952).  AND SEE BONBRIGHT,
SUPRA, AT 354-357.  IT APPEARS TO BE CONCEDED THAT EVEN GAS-WELL GAS
HAS COSTS JOINTLY, AS WELL AS IN COMMON, WITH PETROLEUM, BUT THE
COMMISSION EVIDENTLY, AND PERMISSIBLY, BELIEVED THAT THE DIFFICULTIES
OF ALLOCATION CONNECTED WITH GAS-WELL GAS WERE RELATIVELY
UNCOMPLICATED.  SEE 34 F.P.C., AT 214-215, 339. 

/26/  A BTU, OR BRITISH THERMAL UNIT, IS THE AMOUNT OF HEAT REQUIRED
TO RAISE THE TEMPERATURE OF ONE POUND OF WATER ONE DEGREE FAHRENHEIT
UNDER STATED CONDITIONS OF PRESSURE AND TEMPERATURE. 

/27/  TABULAR SUMMARIES OF THE COST COMPONENTS FROM WHICH THE
DISTRIBUTORS AND THE PRODUCERS DERIVED RECOMMENDED RATES FOR NEW GAS
WELL GAS MAY BE FOUND IN THE EXAMINER'S OPINION.  34 F.P.C., AT 343. 
BASED ON ALLOWANCES FOR PRODUCTION INVESTMENT COSTS, RETURN,
EXPLORATORY COSTS, ROYALTY AND PRODUCTION TAXES, AND OTHER FACTORS, THE
PRODUCERS RECOMMENDED A RATE OF 23.24[ PER MCF; THE DISTRIBUTORS
DERIVED FROM THE SAME FACTORS A RATE OF 15.39[ PER MCF.  SEE ALSO ID.,
AT 357.  SIMILAR TABLES SUMMARIZING THE COMMISSION'S FINDINGS WERE
INCLUDED IN ITS OPINION.  ID., AT 192, 220. 

/28/  THE COMMISSION EXCLUDED NEW MEXICO STATE PRODUCTION TAXES
BECAUSE THEY ARE NOT UNIFORM THROUGHOUT THE THREE COUNTIES.  SEE THE
COMMISSION'S OPINION DENYING APPLICATIONS FOR REHEARING, 34 F.P.C., AT
1074.     /29/  SECTION 4(D), 15 U.S.C. 717CD), PROVIDES IN PART THAT
"(UNLESS THE COMMISSION OTHERWISE ORDERS, NO CHANGE SHALL BE MADE BY
ANY NATURAL-GAS COMPANY IN ANY SUCH RATE, CHARGE, CLASSIFICATION, OR
SERVICE, OR IN ANY RULE, REGULATION, OR CONTRACT RELATING THERETO,
EXCEPT AFTER THRITY DAYS' NOTICE TO THE COMMISSION AND TO THE PUBLIC." 

/30/  THE RESTRICTED CONTRACT PROVISIONS INCLUDED MOST-FAVORED
NATION, SPIRAL ESCALATION AND REDETERMINATION CLAUSES.  SEE PURE OIL
CO., 25 F.P.C. 383, 388, N. 3.  THEY WERE SAID BY THE EXAMINER TO
"CAUSE PRICE INCREASES . . . TO OCCUR WITHOUT REFERENCE TO THE
CIRCUMSTANCES OR ECONOMICS . . . . "  34 F.P.C., AT 373 (INITIAL
DECISION OF THE PRESIDING EXAMINER).     /31/  MANY OF THE REFUND
OBLIGATIONS IN QUESTION HERE STEM FROM THE CONSOLIDATION OF PROCEEDINGS
CONDUCTED IN CONNECTION WITH FILINGS FOR RATE INCREASES UNDER SEC.
4(D).  FOR PURPOSES OF THESE FILINGS AND OF THE ATTENDANT REFUND
OBLIGATIONS, THESE PROCEEDINGS WERE CONDUCTED UNDER SEC. 4(E).  AREA
RATE PROCEEDING NO. AR61-1, 24 F.P.C. 1121. 

/32/  THE VARIOUS PARTIES BEFORE THE COURT HAVE TAKEN QUITE
DISPARATE POSITIONS.  THE DISTRIBUTING COMPANIES, WITH THE EXCEPTION OF
AMICI, AND THE PUBLIC AUTHORITIES, WITH THE EXCEPTIONS OF THE STATE OF
TEXAS AND NEW MEXICO, HAVE ALL SUPPORTED THE COMMISSION'S ORDERS IN
THEIR ENTIRETY.  THEY URGE THAT "CONSUMERS . . . HAVE WAITED LONG
ENOUGH," AND ASSERT THAT "NO GOOD PURPOSE CAN BE SERVED BY FURTHER
PROCEEDINGS."  SEE JOINT BRIEF FOR THE CITY OF SAN DIEGO AND THE CITY
AND COUNTY OF SAN FRANCISCO 24.  CERTAIN OF THE PRODUCERS SUPPORT THE
JUDGMENT BELOW; OTHERS CHALLENGE THE VALIDITY OF PORTIONS OF THE
COMMISSION'S ORDERS THAT WERE SUSTAINED BELOW.  WE HAVE, NONETHELESS,
FREQUENTLY NOT INDICATED WHICH OF THE PARTIES JOIN, AND WHICH OPPOSE,
VARIOUS CONTENTIONS.  THIS DOES NOT SUGGEST THAT WE DO NOT RECOGNIZE
DIFFERENCES IN POSITION; WE WANT MERELY TO SIMPLIFY, SO FAR AS
POSSIBLE, AN ALREADY LENGTHY OPINION. 

ONE FURTHER COMMENT IS PERTINENT.  THE ORGANIZATION AND PRESENTATION
OF ISSUES IS, OF COURSE, A MATTER FOR THE JUDGMENT OF COUNSEL. 
NONETHELESS, IT IS PROPER TO REMARK THAT THE EFFECTIVENESS AND CLARITY
WITH WHICH ISSUES ARE PRESENTED IN CASES OF THIS COMPLEXITY MIGHT BE
SIGNIFICANTLY INCREASED IF EVEN GREATER EFFORTS WERE MADE TO FOCUS AND
CONSOLIDATE ARGUMENTATION ON BEHALF OF PARTIES WITH ESSENTIALLY SIMILAR
VIEWS. 

/33/  THE OPINION OF THE COURT STATED SIMPLY THAT "(WE RECOGNIZE THE
UNUSUAL DIFFICULTIES INHERENT IN REGULATING THE PRICE OF A COMMODITY
SUCH AS NATURAL GAS.  WE RESPECT THE COMMISSION'S CONSIDERED JUDGMENT,
BACKED BY SOUND AND PERSUASIVE REASONING, THAT THE INDIVIDUAL COMPANY
COST-OF-SERVICE METHOD IS NOT A FEASIBLE OR SUITABLE ONE FOR REGULATING
THE RATES OF INDEPENDENT PRODUCERS.  WE SHARE THE COMMISSION'S HOPES
THAT THE AREA APPROACH MAY PROVE TO BE THE ULTIMATE SOLUTION."  373
U.S., AT 310 (NOTE OMITTED). 

/34/  COMPARE BOWLES V. WILLINGHAM, SUPRA, AT 517. 

/35/  THE COURT OF APPEALS REMARKED THAT "(OUT-OF-POCKET EXPENSES
ARE NOT DEFINED AND WE DO NOT KNOW WHAT THEY INCLUDE."  375 F.2D, AT
30.  IT IS CERTAINLY TRUE THAT THE COMMISSION PROFFERED NO DEFINITION,
BUT WE CANNOT REGARD THIS AS A FATAL OMISSION. 

/36/  SECTION 7(B), 15 U.S.C. 717FB), PROVIDES THAT "(NO NATURAL-GAS
COMPANY SHALL ABANDON ALL OR ANY PORTION OF ITS FACILITIES SUBJECT TO
THE JURISDICTION OF THE COMMISSION, OR ANY SERVICE RENDERED BY MEANS OF
SUCH FACILITIES, WITHOUT THE PERMISSION AND APPROVAL OF THE COMMISSION
FIRST HAD AND OBTAINED, AFTER DUE HEARING, AND A FINDING BY THE
COMMISSION THAT THE AVAILABLE SUPPLY OF NATURAL GAS IS DEPLETED TO THE
EXTENT THAT THE CONTINUANCE OF SERVICE IS UNWARRANTED, OR THAT THE
PRESENT OR FUTURE PUBLIC CONVENIENCE OR NECESSITY PERMIT SUCH
ABANDONMENT." 

/37/  INDEED, COMMISSIONER ROSS HAS ALREADY URGED THAT THE
COMMISSION MODIFY ITS AREA PROCEEDINGS SO AS TO REFLECT THE ESSENTIALLY
NATIONAL CHARACTER OF THE RELEVANT ISSUES.  AREA RATE PROCEEDING
(HUGOTON-ANADARKO AREA) NO. AR64-1, 30 F.P.C. 1354, 1359-1362
(DISSENTING OPINION).  MOREOVER, WE NOTE THE "ESSENTIAL AMALGAMATION"
OF THE HUGOTON-ANADARKO AND TEXAS GULF COAST AREA PROCEEDINGS BEFORE
THE COMMISSION, WHERE "IDENTICAL ISSUES WERE HEARD ON A JOINT RECORD." 
1 JOINT INITIAL STAFF BRIEF IN AREA RATE PROCEEDINGS NOS. AR64-1 AND
AR64-2, 1.  FINALLY, WE MUST EMPHASIZE THAT WE UNDERSTAND THE PRESENT
PROCEEDING TO BE MERELY THE FIRST OF MANY STEPS TOWARD A MORE
EXPEDITIOUS AND EFFECTIVE SYSTEM OF REGULATION. 

/38/  34 F.P.C., AT 227. 

/39/  SEE, E.G., TRANSCONTINENTAL GAS PIPE LINE CORP., 34 F.P.C.
584. 

/40/  WE OBTAIN ADDITIONAL ASSISTANCE FROM SEC. 16; IT PROVIDES THAT
THE COMMISSION "SHALL HAVE POWER TO PERFORM ANY AND ALL ACTS, AND TO
PRESCRIBE . . . SUCH ORDERS, RULES, AND REGULATIONS AS IT MAY FIND
NECESSARY OR APPROPRIATE TO CARRY OUT THE PROVISIONS OF THIS" ACT.  15
U.S.C. 717O. 

/41/  SECTION 4(D) IS SET OUT AT N. 29, SUPRA. 

/42/  SECTION 4(E), 15 U.S.C. 717CE), PROVIDES IN PART THAT
"(WHENEVER ANY SUCH NEW SCHEDULE IS FILED THE COMMISSION SHALL HAVE
AUTHORITY, EITHER UPON COMPLAINT . . . OR UPON ITS OWN INITIATIVE . . .
TO ENTER UPON A HEARING CONCERNING THE LAWFULNESS OF SUCH RATE, CHARGE,
CLASSIFICATION, OR SERVICE; AND, PENDING SUCH HEARING AND THE DECISION
THEREON, THE COMMISSION . . . MAY SUSPEND THE OPERATION OF SUCH
SCHEDULE AND DEFER THE USE OF SUCH RATE . . . BUT NOT FOR A LONGER
PERIOD THAN FIVE MONTHS BEYOND THE TIME WHEN IT WOULD OTHERWISE GO INTO
EFFECT; AND AFTER FULL HEARINGS, EITHER COMPLETED BEFORE OR AFTER THE
RATE, CHARGE CLASSIFICATION, OR SERVICE GOES INTO EFFECT, THE
COMMISSION MAY MAKE SUCH ORDERS WITH REFERENCE THERETO AS WOULD BE
PROPER IN A PROCEEDING INITIATED AFTER IT HAD BECOME EFFECTIVE.  IF THE
PROCEEDING HAS NOT BEEN CONCLUDED AND AN ORDER MADE AT THE EXPIRATION
OF THE SUSPENSION PERIOD . . . THE PROPOSED CHANGE OF RATE . . . SHALL
GO INTO EFFECT.  WHERE INCREASED RATES OR CHARGES ARE THUS MADE
EFFECTIVE, THE COMMISSION MAY, BY ORDER, REQUIRE THE NATURAL-GAS
COMPANY TO FURNISH A BOND . . . AND, UPON COMPLETION OF THE HEARING AND
DECISION, TO ORDER SUCH NATURAL-GAS COMPANY TO REFUND, WITH INTEREST,
THE PROTION OF SUCH INCREASED RATES OR CHARGES BY ITS DECISION FOUND
NOT JUSTIFIED." 

/43/  SEE N. 1, SUPRA. 

/44/  34 F.P.C., AT 228. 

/45/  ID., AT 230. 

/46/  THE COMMISSION HAS ELSEWHERE PROVIDED BRIEF DEFINITIONS OF THE
PERTINENT TYPES OF CLAUSES.  SEE GENERALLY PURE OIL CO., 25 F.P.C.
383.  TWO-PARTY MOST-FAVORED-NATION CLAUSES ARE THOSE "ACTIVATED BY
HIGHER PRICES PAID TO ANY OTHER SUPPLIER BY THE SAME PURCHASER."  THREE
PARTY MOST-FAVORED-NATION CLAUSES ARE "ACTIVATED BY HIGHER PRICES PAID
TO ANY OTHER SUPPLIER BY ANY PURCHASER."  SPIRAL ESCALATION CLAUSES
PROVIDE "THAT IN THE EVENT THE PRICE WHICH THE BUYER RECEIVES FOR THE
GAS IS INCREASED, THE PRICE CONCURRENTLY PAID BY THE BUYER TO THE
SUPPLIER UNDER THE CONTRACT SHALL BE INCREASED IN PROPORTION TO THE
BUYER'S INCREASE."  REDETERMINATION CLAUSES PROVIDE "THAT THE PRICE
CURRENTLY PAID UNDER THE CONTRACT SHALL BE SUBJECT TO UPWARD ADJUSTMENT
AT CERTAIN SPECIFIED TIMES TO REFLECT THE AVERAGE OF THE HIGHEST PRICES
THEN PAID BY BUYERS TO OTHER SUPPLIERS FOR GAS DELIVERED UNDER
SUBSTANTIALLY SIMILAR TERMS AND CONDITIONS."  ID., AT 388, N. 3. 

/47/  ORDER NO. 232, 25 F.P.C. 379.  THIS WAS SUBSEQUENTLY MODIFIED
BY ORDER NO. 242, 27 F.P.C. 339.  SEE 18 CFR 154.93. 

/48/  THE COMMISSION STATED IN ITS ORDER NO. 242 THAT INDEFINITE
ESCALATION CLAUSES "HAVE CREATED A SIGNIFICANT PORTION OF THE
ADMINISTRATIVE BURDENS UNDER WHICH THIS COMMISSION IS LABORING," AND
THAT THEY PRODUCE A "FLOOD OF ALMOST SIMULTANEOUS FILINGS" THAT "BEAR
NO APPARENT RELATIONSHIP TO THE ECONOMIC REQUIREMENTS OF THE PRODUCERS
WHO FILE THEM."  27 F.P.C. 339, 340.  SEE ALSO 5 JOINT APPENDIX 1858
1859. 

/49/  THE COMMISSION DEFINED A SMALL PRODUCER AS ONE "SELLING
JURISDICTIONALLY LESS THAN 10,000,000 MCF ANNUALLY ON A NATIONWIDE
BASIS."  34 F.P.C., AT 235.  SEE FURTHER THE TESTIMONY OF PRODUCER
WITNESS ABEL, 1 JOINT APPENDIX 339-342.  THIS WOULD INCLUDE SOME 250 OF
THE FILING PRODUCERS IN THE PERMIAN BASIN, LEAVING SOME 40 LARGE
PRODUCERS.  UNDER THIS DEFINITION, THERE ARE SOME 2,000 SMALL PRODUCERS
IN THE UNITED STATES, AND 75 LARGE PRODUCERS.  34 F.P.C., AT 235.  SEE
ALSO FEDERAL POWER COMMISSION, SALES BY PRODUCERS OF NATURAL GAS TO
NATURAL GAS PIPELINE COMPANIES 1963, 1-6 (1965). 

/50/  THE EXAMINER OBSERVED THAT THE "BASIC DIFFERENCE BETWEEN THE
SMALL AND THE LARGE PRODUCER IS THAT THE RISKS OF THE BUSINESS ARE
MATIERALLY DIFFERENT FOR EACH."  34 F.P.C., AT 360.  COMPARE 1 JOINT
APPENDIX 318-319, 328-332. 

/51/  THESE QUESTIONS WERE DISCUSSED AT LENGTH IN TESTIMONY BEFORE
THE EXAMINER ON BEHALF OF THE TEXAS INDEPENDENT PRODUCERS AND ROYALTY
OWNERS ASSOCIATION, AND OTHERS.  SEE GENERALLY 5 JOINT APPENDIX 1655
1714, 1773-1787; 1 ID., AT 224-232, 255.  AND SEE SUPPLEMENT TO JOINT
APPENDIX 3S-6S. 

/52/  THE EXAMINER STATED THAT SMALL PRODUCERS HAD "RELATIVELY
LARGER DRY HOLE EXPENSES, A SMALL PROPORTION OF GEOLOGICAL AND
GEOPHYSICAL EXPENSES, AND A SMALLER PROPORTION OF LEASE ACQUISITION
EXPENDITURES"; HE ADDED THAT THEY HAD RELATIVELY LARGER DEPLETION,
DEPRECIATION, AND AMORTIZATION EXPENSES.  34 F.P.C., AT 361.  THE
EXAMINER ALSO FOUND THAT THE "RATIOS OF INCOME AVAILABLE FOR INCOME
TAXES, CASH DIVIDENDS, AND WORKING CAPITAL TO NET INVESTMENT WERE 7.8,
2.5, AND 7.4 FOR THE LARGE PRODUCERS, SMALL PRODUCERS AND FOR THE
WEIGHTED AVERAGE."  IBID.  SEE ALSO TESTIMONY AT 3 JOINT APPENDIX 1114
1116. 

/53/  THE COMMISSION FOUND THAT THEY PROVIDE ONLY ABOUT 15% OF THE
TOTAL SUPPLY OF NATURAL GAS MOVING IN INTERSTATE COMMERCE, AND THAT
"THEY USUALLY CANNOT OBTAIN MORE FOR THEIR GAS THAN THE REGULATED PRICE
WE FIX FOR THE MAJOR PRODUCERS."  34 F.P.C., AT 234.  AND SEE ID., AT
363.  ON THE OTHER HAND, THE COMMISSION NOTED THAT IN SPECIFIC
SITUATIONS THE SMALL PRODUCERS MIGHT HAVE A VERY IMPORTANT PORTION OF
THE RELEVANT MARKET.  ID., AT 235.  THE EXAMINER INDICATED THAT "(FEWER
THAN 50" LARGE PRODUCERS SELL 87% OF THE GAS SOLD FROM THE PERMIAN
BASIN UNDER THE COMMISSION'S JURISDICTION.  ID., AT 361. 

/54/  IT SHOULD BE NOTED THAT THE SMALL PRODUCERS DID NOT AT FIRST
WISH ANY SPECIAL EXEMPTIONS; THEY EVIDENTLY FEARED THAT ANY SUCH
EXEMPTIONS MIGHT CAUSE THE COMMISSION TO IGNORE THEIR DIFFICULTIES, AND
ULTIMATELY PERHAPS TO PERMIT THEM TO BE PRICED OUT OF THE INDUSTRY. 
THESE DICUSSIONS MAY BE TRACED AT 5 JOINT APPENDIX 16-92-1714. 

/55/  CORRESPONDINGLY, THE SMALL PRODUCERS NEED NOT TAKE QUALITY
ADJUSTMENTS INTO ACCOUNT FOR PURPOSES OF REFUNDS, UNLESS THEY WISH TO
TAKE ADVANTAGE OF UPWARD PRICE ADJUSTMENTS BECAUSE OF HIGH BTU
CONTENT.  34 F.P.C., AT 233. 

/56/  IT IS PERTINENT THAT THE COMMISSION ESTIMATED REGULATORY
EXPENSES, FOR PURPOSES OF THE CALCULATION OF AREA MAXIMUM RATES, AT
0.14[ PER MCF.  THE COMMISSION STATED THAT "NO PARTICIPANT DISPUTES ITS
INCLUSION . . . . "  34 F.P.C., AT 197.  IN CONTRAST, IT HAS BEEN
ESTIMATED THAT THE TOTAL COSTS TO PRODUCERS OF THE COMMISSION'S
REGULATION ARE SOME 1.164[ PER MCF.  OF THIS TOTAL, 0.039[ ARE SAID TO
ARISE FROM ADMINISTRATION, 0.809[ FROM DELAY, AND 0.316[ FROM
CONTINGENCIES.  SEE GERWIG, NATURAL GAS PRODUCTION:  A STUDY OF COSTS
OF REGULATION, 5 J.LAW & ECON.  69, 85, 86, 88. 

/57/  IT IS PERTINENT THAT MUCH OF THE COST AND OTHER DATA UPON
WHICH THE COMMISSION RELIED REFLECTED NATIONAL, AND NOT AREA OR LOCAL,
CIRCUMSTANCES.  FURTHER, THE COMMISSION FOUND THAT PRODUCTION COSTS IN
THE PERMIAN BASIN DID NOT "VARY SUFFICIENTLY FROM THE NATIONAL AVERAGE
TO WARRANT A DIFFERENT TREATMENT . . . . "  34 F.P.C., AT 191. 
MOREOVER, NO PARTY OFFERED A COMPREHENSIVE COST STUDY PREMISED ON A
LARGER PERMIAN BASIN, ALTHOUGH CERTAIN INFORMATION RELEVANT TO ADJACENT
AREAS WAS PRESENTED.  SEE 1 JOINT APPENDIX 37-41; 6 ID., AT 15E.  BUT
SEE 1 ID., AT 242-244. 

/58/  THE RATE STRUCTURE IS SUMMARIZED ABOVE, AT 759-764. 

/59/  ECONOMISTS HAVE FREQUENTLY PROVED MORE CANDID ABOUT THESE
DIFFICULTIES.  SOCIAL WELFARE AND PUBLIC INTEREST STANDARDS HAVE BEEN
DESCRIBED AS "ALMOST UNIQUE IN THE EXTREME VAGUENESS OF (THEIR)
ULTIMATE VERBAL NORM."  BONBRIGHT, SUPRA, AT 27.  SIMILARLY, IT IS SAID
THAT NO WRITER "WHOSE VIEWS ON PUBLIC UTILITY RATES COMMAND RESPECT
PURPORTS TO FIND A SINGLE YARDSTICK BY SOLE REFERENCE TO WHICH RATES
THAT ARE REASONABLE OR SOCIALLY DESIRABLE CAN BE DISTINGUISHED FROM
RATES THAT ARE UNREASONABLE OR ADVERSE TO THE PUBLIC INTEREST."  ID.,
AT 76.  BUT COMPARE NATIONAL BROADCASTING CO. V. UNITED STATES, 319
U.S. 190, 216. 

/60/  THIS PHRASE WAS TAKEN BY THE COURT OF APPEALS AS THE SUBSTANCE
OF THE OPINION OF THE COURT IN FPC V. HOPE NATURAL GAS CO., SUPRA.  THE
COURT CONTRASTED UNFAVORABLY THE COMMISSION'S ASSERTION THAT IT HAD
FOUND A "FAIR RELATIONSHIP" BETWEEN THE CONSUMER INTERESTS AND THE
PRODUCERS' COST.  SEE 34 F.P.C., AT 1074; 375 F.2D, AT 34.  WE ARE
UNABLE TO FIND IN THE VERBAL DIFFERENCES BETWEEN THESE TWO PHRASES ANY
OBJECTION TO THE COMMISSION'S ORDERS.  THE COMMISSION'S EXERCISE OF ITS
REGULATORY AUTHORITY MUST BE ASSESSED IN LIGHT OF ITS PURPOSES AND
CONSEQUENCES, AND NOT BE REFERENCES TO ISOLATED PHRASES FROM PREVIOUS
CASES. 

/61/  THE COMMISSION FOUND THAT THE 2.8[ PER MCF PAID AS AN AVERAGE
PRICE IN 1947 HAD RISEN TO 9.0[ IN 1954, AND TO 13.8[ IN 1960.  IN
1960, EL PASO, THE DOMINANT PIPELINE COMPANY IN THE BASIN, RENEGOTIATED
ITS CONTRACTS AND OFFERED PRICES RANGING FROM 13.5[ TO 17[ PER MCF.  34
F.P.C., AT 182.  THE EXAMINER POINTED OUT THAT BETWEEN 1947 AND 1960,
THE AVERAGE PRICE PAID NATIONALLY BY PIPELINES TRBLED, FROM 4.95[ TO
15.61[ PER MCF.  ID., AT 312.  AND SEE 2 JOINT APPENDIX 423-432. 

/62/  IT APPEARS THAT FIVE PRODUCERS WERE RESPONSIBLE IN 1960 FOR
MORE THAN ONE-HALF OF ALL THE NATURAL GAS SOLD FROM THE BASIN UNDER THE
COMMISSION'S REGULATION.  FIFTEEN PRODUCERS ACCOUNTED FOR ALMOST THREE
FOURTHS OF THE SALES.  SEE MEMORANDUM OF THE TEXAS INDEPENDENT
PRODUCERS AND ROYALTY OWNERS ASSOCIATION, 5 JOINT APPENDIX 1775, 1780. 
SEE ALSO ANALYSIS OF INDEPENDENT RODUCER RATE SCHEDULES, 6 JOINT
APPENDIX 275E-293E.  THESE QUESTIONS ARE VERY USEFULLY DISCUSSED BY
DISTRIBUTOR WITNESS KAHN AT 2 JOINT APPENDIX 410-432.  HE NOTES THE
SIGNIFICANCE OF "A SHARPLY RISING DEMAND OPERATING ON A SLUGGISHLY
RESPONDING SUPPLY,"  ID., AT 423, BUT ALSO EMPHASIZES THE IMPORTANCE OF
THE ESCALATION CLAUSES AND OF VARIOUS MARKET IMPERFECTIONS.    /63/
THE COMMISSION STATED THAT "THE ENTIRE HISTORY OF PIPELINE PURCHASING
ACTIVITY, SINCE THE END OF THE EL PASO MONOPOLY IN THE PERMIAN BASIN,
HAS BEEN CHARACTERIZED BY THE OVERRIDING NEEDS OF THE PIPELINES TO
CONTRACT FOR THE LARGE BLOCKS OF UNCOMMITTED RESERVES ESSENTIAL TO
MAINTAIN THEIR COMPETITIVE POSITION IN DEVELOPING MARKETS . . . AND
THEIR INABILITY TO ACCOMPLISH THIS OBJECTIVE EXCEPT AT EVER INCREASING
PRICES."  34 F.P.C., AT 182.  IT IS NOTEWORTHY THAT, DESPITE THE
OBVIOUS IMPORTANCE OF THESE PROCEEDINGS, THE PIPELINE COMPANIES DID NOT
TAKE AN ACTIVE PART HERE, IN THE COURT OF APPEALS OR BEFORE THE
COMMISSION.  SEE ALSO 2 JOINT APPENDIX 423-432.  BUT SEE 4 ID., AT 1384
1388. 

/64/  THE PHRASE IS COMMISSIONER OCONNOR'S.  34 F.P.C., AT 252
(OPINION CONCURRING AND DISSENTING ON LIMITED ISSUE).  IT IS PROPER TO
NOTE THAT HE WOULD HAVE MUCH WIDER USE OF FIELD PRICES FOR THE
CALCULATION OF THE AREA RATES.  MONOPSONY IS THE TERM USED TO DESCRIBE
A SITUATION IN WHICH THE RELEVANT MARKET FOR A FACTOR OF PRODUCTION IS
DOMINATED BY A SINGLE PURCHASER.  SEE J. ROBINSON, THE ECONOMICS OF
IMPERFECT COMPETITION 215 (1933).  THE RELEVANT MARKET HERE IS THAT FOR
UNCOMMITTED RESERVES.  SEE 2 JOINT APPENDIX 410.  FINALLY, FOR A
GENERAL EXAMINATION OF THE USEFULNESS OF THE COMPETITIVE MODEL FOR
REGULATION, SEE BONBRIGHT, SUPRA, AT 106-108. 

/65/  IT SHOULD BE OBSERVED THAT THE SIGNIFICANCE OF THE ESCALATION
CLAUSES WILL PRESUMABLY BE DIMINISHED BY THE COMMISSION'S SERIES OF
ORDERS RESTRICTING THEIR USE. 

/66/  SOME 85% OF THE GAS SOLD IN INTERSTATE COMMERCE FROM THE
PERMIAN BASIN IS ULTIMATELY CONSUMED IN CALIFORNIA.  34 F.P.C., AT 174,
312.  THE DEMAND FOR NATURAL GAS AMONG RESIDENTIAL AND COMMERCIAL
CONSUMERS, ONCE THEY HAVE PURCHASED THE NECESSARY EQUIPMENT, IS
RELATIVELY INELASTIC.  ID., AT 313.  THE DEMAND AMONG INDUSTRIAL
CONSUMERS IS MORE RESPONSIVE TO PRICE, BUT RESTRICTIONS IN CALIFORNIA
ON THE USE OF VARIOUS INDUSTRIAL FUELS HAVE LEFT INDUSTRIAL DEMAND LESS
RESPONSIVE TO PRICE THERE THAN IN OTHER PARTS OF THE COUNTRY.  ID., AT
313-314. 

/67/  INDEED, THE COMMISSION EXPLICITLY STATED THAT "(WE RECOGNIZE
THAT THE HISTORY OF NEGOTIATED PRICES IN THE AREA IS AN IMPORTANT
ELEMENT TO BE CONSIDERED IN REACHING OUR DECISION."  34 F.P.C.,AT 181. 

/68/  WE NOTE THAT ECNOMISTS HAVE SOMETIMES CONCLUDED THAT THE
MARKET MECHANISM WORKS SATISFACTORILY IN THE NATURAL GAS INDUSTRY. 
"THERE IS . . . NO QUESTION BUT THAT THE FIELD PRICE OF GAS IN THE
UNITED STATES IS COMPETITIVELY DETERMINED."  ADELMAN, SUPRA, AT 39. 
SEE ALSO E. NEUNER, THE NATURAL GAS INDUSTRY 125-134, 238-290 (1960). 
IN CONTRAST, PROFESSOR KAHN SAID OF OIL AND GAS THAT "FEW OTHER
INDUSTRIES IN OUR ENTIRE ECONOMY . . . ARE SO INSULATED . . . FROM THE
NORMAL FORCES OF THE MARKET."  2 JOINT APPENDIX 607.  BUT SEE 1 ID., AT
217-218, 280-281.  AND SEE R. HOOLEY, FINANCING THE NATURAL GAS
INDUSTRY 5-25 (1961). 

/69/  COLORADO INTERSTATE CO., V. FPC, 324 U.S. 581, 612 (CONCURRING
OPINION). 

/70/  THE EXAMINER FOUND THAT THE LARGER PRODUCERS COULD NOT PREDICT
WITH HIGH ACCURACY WHETHER DRILLING IN A PARTICULAR AREA WOULD BE
LIKELY TO PRODUCE ASSOCIATED OR UNASSOCIATED GAS.  34 F.P.C.,AT 325,
329.  THIS APPEARS PRIMARILY TO BE THE CONSEQUENCE OF ACCUMULATED
EXPERIENCE, AND NOT OF ANY IMPROVEMENT IN TECHNOLOGY.  SEE ALSO 2 JOINT
APPENDIX 558, 581; 1 ID., AT 56, 307-308.  USEFUL STATISTICAL EVIDENCE
OF PREDICTABILITY MAY BE FOUND IN PRODUCER TESTIMONY.  SEE 3 ID., AT
952-955, 963, 965-967, 1079-1080.  AND SEE 7 ID., AT 572E-575E.  IT
SHOULD BE NOTED THAT THE COMMISSION'S STAFF DENIED THAT GAS COULD BE
SEPARATELY SOUGHT.  3 ID., AT 933-934. 

/71/  ESTIMATES OF THE MOMENT AT WHICH DIRECTIONAL SERACH BECAME
POSSIBLE VARIED; ONE WITNESS TESTIFIED THAT PHILLIPS REGARD JANUARY 1,
1959, AS AN APPROPRIATE DATE OF CALCULATION.  1 JOINT APPENDIX 56. 

/72/  SEE 34 F.P.C.,AT 273.  BUT CONTRAST THE TESTIMONY OF
DISTRIBUTOR WITNESS KAHN, WHO RECOGNIZED THAT IT WOULD BE "IN SOME
MEASURE ARBITRARY" TO GIVE THE LOWER PRICE TO GAS WELLS THAT BEGAN
PRODUCTION AFTER 1960 BUT BEFORE THE COMMISSION'S FINAL DECISION IN
THESE PROCEEDINGS.  2 JOINT APPENDIX 635. 

/73/  THE STATEMENT PROVIDED A GUIDELINE PRICE OF 16[ PER MCF FOR
INITIAL FILINGS, AND 11 CENTS PER MCF FOR PREVIOUSLY COMMITTED GAS.  24
F.P.C.,AT 820.  THE COMMISSION INDICIATED THAT THIS WAS IN RECOGNITION
OF "ECONOMIC FACTORS."  ID., AT 819. 

/74/  IT IS PERTINENT THAT GERWIG FOUND THAT A PREMIUM OF 1.16[ PER
MCF IS NECESSARY BEFORE PRODUCERS RATIONALLY ENTER THE INTERSTATE
MARKET.  GERWIG, SUPRA, AT 85.  SEE ALSO KITCH, THE PERMIAN BASIN AREA
RATE CASES AND THE REGULATORY DETERMINATION OF PRICE, 116 U.PA.L.REV. 
191, 207.  COMPARE JOHNSON, PRODUCER RATE REGULATION IN NATURAL GAS
CERTIFICATION PROCEEDINGS:  CATCO IN CONTEXT, 62 COL.L.REV.  773, 784,
N. 61.  FINALLY, SEE THE TESTIMONY OF PRODUCER WITNESS FOSTER, 1 JOINT
APPENDIX 142-144. 

/75/  WE SEE NO OBJECTION TO THE COMMISSION'S PREFERENCE FOR JANUARY
1, 1961, INSTEAD OF DECEMBER 23, 1960, THE DATE ON WHICH IT ISSUED THE
ORDER COMMENCING THESE PROCEEDINGS.  THIS CHOICE WAS ADEQUATELY
JUSTIFIED BY ADMINISTRATIVE CONVENIENCE. 

/76/  IT SHOULD BE OBSERVED THAT THE WITNESS CHIEFLY RESPONSIBLE FOR
THE CONTRIVANCE OF THE TWO-PRICE SYSTEM ULTIMATELY ADOPTED BY THE
COMMISSION, SEE 2 JOINT APPENDIX 510-513, 576-585, 601-611, HAS
ELSEWHERE DESCRIBED THE NEED FOR CLOSE RESTRAINTS ON INCREASES IN THE
PRICE OF NATURAL GAS.  KAHN, EONOMIC ISSUES IN REGULATING THE FIELD
PRICE OF NATURAL GAS, 50 AM.ECON.REV.  506, 510-514.  SEE ALSO KITCH,
SUPRA, AT 211-212. 

/77/  34 F.P.C.,AT 191.  AND SEE ID., AT 339-340. 

/78/  IT SHOULD BE NOTED THAT THE PARTIES PROFFERED A LIST OF
SOURCES OF INFORMATION, TO WHICH THE EXAMINER GAVE HIS APPROVAL.  SEE 1
JOINT APPENDIX 291-305, 309-310.  THESE WERE SAID BY THE PARTIES TO BE
"RECOGNIZED, PURBLISHED STATISTICAL DATA SOURCES."  ID., AT 292.  THE
COMMISSION DESCRIBED THEM AS "WELL-RECOGNIZED AND AUTHORITATIVE."  34
F.P.C.,AT 191.  NONETHELESS, CAREFUL EFFORTS WERE MADE TO DETERMINE
WHETHER THESE AND OTHER SOURCES OF EVIDENCE, INCLUDING THE PRODUCERS'
QUESTIONNAIRES, WERE, AS TO THE VARIOUS COST COMPONENTS, ACCURATELY
REPRESENTATIVE OF THE RELEVANT GROUPS OF PRODUCERS.  SEE, E.G., ID., AT
377, 378, 380, 381, 384, 387, 392, 393. 

/79/  THREE SETS OF QUESTIONNAIRES WERE USED.  APPENDIX A WAS
APPLICABLE TO ALL PRODUCERS, AND CONCERNED CHIEFLY DRILLING COSTS. 
APPENDIX B WAS REQUIRED OF OF LARGE PRODUCERS, AND CONCERNED COSTS,
REVENUES AND PRODUCTION.  APPENDIX C WAS A SIMPLIFIED VERSION OF
APPENDIX B, WHICH SMALL PRODUCERS WERE PERMITTED TO USE.  THE PRODUCERS
HAVE ARGUED VIGOROUSLY THAT THESE QUESTIONNAIRES DID NOT PROVIDE A
SUFFICIENT BASIS FOR THE COMMISSION'S FINDINGS.  WE CANNOT AGREE.  THE
COMMISSION REASONABLY CONCLUDED, AS HAD THE EXAMINER, THAT THE APPENDIX
C QUESTIONNAIRES RECEIVED FROM SMALL PRODUCERS WERE NOT NECESSARILY
REPRESENTATIVE.  34 F.P.C.,AT 214.  AND SEE 3 JOINT APPENDIX 1117
1118.  MOREOVER, THE ADDITION OF THE APPENDIX C DATA FROM THE SMALL
PRODUCERS WOULD EVIDENTLY NOT HAVE PRODUCED A SIGNIFICANT CHANGE IN THE
ULTIMATE COST COMPONENTS.  SEE 34 F.P.C.,AT 214, 392-393, 400. 
FURTHER, THE COMMISSION FOUND THAT THE RESPONSE TO THE APPENDIX B
QUESTIONNAIRES RECEIVED FROM 25 SMALL PRODUCERS WOULD HAVE "CHANGED)
THE RESULTS.  ID., AT 214, N. 34.  OF THE 43 LARGE PRODUCERS THAT FILED
APPENDIX B QUESTIONNAIRES, THE STAFF AND COMMISSION DISREGARDED ONLY
ONE, WHICH HAD NOT BEEN PROPERLY COMPLETED.  SEE GENERALY 2 JOINT
APPENDIX 731-748; 3 ID.,AT 753-761.  IN THESE CIRCUMSTANCES, THE
COMMISSION CONCLUDED, WE THINK REASONABLY, THAT "THE DATA PROVIDED BY
THE MAJOR PRODUCERS WITH RESPECT TO THEIR PERMIAN PRODUCTION WAS FULLY
REPRESENTATIVE OF AREA COSTS . . . . "  34 F.P.C.,AT 214.  THIS COURT
HAS REPEATEDLY HELD THAT ADMINISTRATIVE AGENCIES MAY "PROCEED ON A
GROUP BASIS . . . ON 'EVIDENCE WHICH THE COMMISSION ASSUMED WAS TYPICAL
IN CHARACTER, AND AMPLE IN QUANTITY' TO JUSTIFY ITS FINDINGS . . . . "
CHICAGO & N.W.R. CO. V. A., T. & S.F.R. CO., 387 U.S. 326, 341, QUOTING
NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 196-197.  THE COMMISSION HAS
HERE REASONABLY FOUND THAT THE EVIDENCE BEFORE IT SATISFIED THESE
REQUIREMENTS; WE THEREFORE FIND NO OBJECTION. 

/80/  SEE GENERALLY THE EXAMINER'S DISCUSSION, 34 F.P.C., AT 393
400.  ECONOMISTS HAVE DESCRIBED THESE DIFFICULTIES WITH REPETITIVE
PUNGENCY.  "TO MAKE LABORIOUS COMPUTATIONS PURPORTING TO DIVIDE (SUCH)
COSTS IS 'NONSENSE ON STILTS,' AND HAS NO MORE MEANING THAN THE FAMOUS
EXAMPLE OF PREDICTING THE BANANA CROP BY ITS CORRELATION WITH
EXPENDITURES OF THE ROYAL NAVY."  ADELMAN, SUPRA, AT 25.  SEE ALSO
MACHLUP, SUPRA, N. 25, AT 21; BONBRIGHT, SUPRA, AT 339-342.  COMPARE
ECKSTEIN, NATURAL GAS AND PATTERNS OF REGULATION, 36 HARV.BUS.REV. 
126, 129-133; AND KAHN, SUPRA, AT 510-514. 

/81/  BY ONE ESTIMATE, THE COSTS OF NONASSOCIATED GAS ARE 45%
SEPARATE, 31% JOINT, AND 24% COMMON.  SEE 34 F.P.C.,AT 339.  ALL OF THE
COSTS OF ASSOCIATED GAS ARE JOINT.  IBID.  BUT SEE KITCH, SUPRA, AT
202. 

/82/  34 F.P.C.,AT 1072.  NOE OF THE DISTRIBUTORS OR PUBLIC AGENCIES
BEFORE THE COURT, EXCEPT AMICI, HAVE ARGUED THAT THIS PERMITS
EXCESSIVELY GENEROUS RETURNS TO PRODUCERS.  INDEED, REPRESENTATIVES OF
THE CONSUMERS WHO ULTIMATELY PURCHASE MOST OF THE GAS PRODUCED IN THE
PERMIAN BASIN HAVE URGED US TO AVOID "LONG EXTENSIVE DELAYS" AND TO
AFFIRM THE COMMISSION'S ORDERS IN THEIR ENTIRETY.  SEE, E.G., BRIEF FOR
THE CITY OF LOS ANGELES 6; JOINT BRIEF FOR THE CITY OF SAN DIEGO AND
THE CITY AND COUNTY OF SAN FRANCISCO 24; BRIEF FOR PEOPLE OF THE STATE
OF CALIFORNIA 63.  THESE PARTIES DID NOT PETITION THE COURT OF APPEALS
TO REVIEW THE COMMISSION'S ORDERS, AND PARTICIPATED BELOW ONLY AS
INTERVENORS IN FULL SUPPORT OF THE COMMISSION'S POSITION.  EVEN
ASSUMING ARGUENDO THAT THESE QUESTIONS ARE NOT NOW FORECLOSED BY SEC.
19(B), WE CAN FIND NO BASIS ON WHICH TO SET ASIDE THE AREA RATES AS
EXCESSIVE.  AS WE SHALL SHOW BELOW, THE RATE OF RETURN PERMITTED THE
PRODUCERS DOES NOT SUBSTANTIALLY EXCEED THAT ORDINARILY ALLOWED TO
PIPELINES.  FURTHER, IT MUST BE RECALLED THAT THE AREA MAXIMUM RATES
WERE, EVEN BEFORE ADJUSTMENT FOR QUALITY AND BTU DEFICIENCIES, INTENDED
TO APPROXIMATE AVERAGE UNIT COSTS.  FINALLY, WE NOTE THAT THE
COMMISSION'S AREA RATE FOR NEW GAS-WELL GAS, AFTER ADJUSTMENT FOR
AVERAGE QUALITY DEFICIENCIES, VERY NEARLY EQUALS THAT ORIGINALLY
PROPOSED BY DISTRIBUTOR AND CONSUMER REPRESENTATIVES.  COMPARE 34
F.P.C.,AT 343, AND AT 1073.  WE CANNOT SAY THAT THE COMMISSION'S RATES
ARE ABOVE THE "ZONE OF REASONABLENESS" PERMITTED BY THE NATURAL GAS
ACT. 

/83/  THESE QUESTIONS ARE USEFULLY DISCUSSED IN BONBRIGHT, SUPRA, AT
240-283.  SEE ALSO THE COMMISSION'S DISCUSSION OF THE TRUE YIELD
METHOD.  34 F.P.C.,AT 202.  COMPARE 4 JOINT APPENDIX 1267, 1406-1416. 
AND SEE THE INITIAL DECISION OF THE PRESIDING EXAMINER IN AREA RATE
PROCEEDING (SOUTHERN LOUISIANA AREA), NO. AR61-2, ISSUED DECEMBER 30,
1966, AT 75-85. 

/84/  34 F.P.C.,AT 201.  COMPARE ID., AT 343-352.  AND SEE FOR
ESTIMATES OF MORE RECENT EQUITY ALLOWANCES, BRIEF FOR THE FEDERAL POWER
COMMISSION 144, N. 16. 

/85/  THE EXAMINER FOUND THAT NONINTEGRATED PRODUCERS HAD AN AVERAGE
DEBT OF APPROXIMATELY 12%.  THE PIPELINES WERE FOUND TO HAVE DEBTS
"SOMETIMES AS LARGE AS UP PERCENT OF TOTAL CAPITALIZATION . . . . "  34
F.P.C.,AT 345.  SEE ALSO CONTRASTING TESTIMONY AT 1 JOINT APPENDIX 173
177; AND 2 ID., AT 614-616.  IT IS PROPER TO OBSERVE THAT IT HAS
SOMETIMES BEEN ARGUED THAT THE LEVERAGE OF HIGH BORROWINGS ITSELF
CREATES CERTAIN FINANCIAL RISKS.  BUT SEE G. STIGLER, CAPITAL AND RATES
OF RETURN IN MANUFACTURING INDUSTRIES 64, N. 15 (1963).  FINALLY, IT
SHOULD BE NOTED THAT RISK HAS ON OCCASION BEEN REGARDED AS CAUSE FOR A
REDUCTION OF THE RATE OF RETURN.  SEE C. HARDY, RISK AND RISK-BEARING
37-38 (1931). 

/86/  AS WILL APPEAR BELOW, WE FIND THE COMMISSION'S DISCUSSION OF
RELATIVE FINANCIAL RISKS IMPRECISE.  THERE IS, HOWEVER, A PLAIN
STATEMENT IN THE COMMISSION'S OPINION TO THE EFFECT THAT EXPLORATION
AND PRODUCTION ARE FINANCIALLY MORE HAZARDOUS THAN TRANSMISSION.  SEE
34 F.P.C.,AT 201.  THE COMMISSION DID NOT INDICATE CLEARLY WHETHER IT
CONSIDERED PRODUCTION TAKEN IN THE AGGREGATE AS MORE HAZARDOUS THAN THE
AFFAIRS OF AN INDIVIDUAL PIPELINE COMPANY, OR INDEED EVEN WHETHER IT
CONSIDERED SUCH AGGREGATE CALCULATIONS RELEVANT. 

/87/  SEE THE DISCUSSION AT 34 F.P.C.,AT 203-204.  AND SEE ID., AT
349-352.  FINALLY, SEE 3 JOINT APPENDIX 850-936. 

/88/  BUT SEE KITCH, SUPRA, AT 201.  SEE ALSO STIGLER, SUPRA, AT 62
64. 

/89/  IT HAS BEEN ARGUED WITH FORCE THAT THE PRODUCERS WERE NOT
GIVEN FAIR NOTICE THAT THE COMMISSION MIGHT PROMULGATE SUCH STANDARDS. 
IT APPEAS THAT THE COMMISSION DID NOT ANNOUNCE IN TERMS THAT IT MIGHT
CREATE QUALITY STANDARDS, AND THAT IT TACITLY DENIED A MOTION TO
CONSOLIDATE THIS PROCEEDING WITH A RULE-MAKING PROCEEDING INTENDED TO
DEVISE NATIONAL QUALITY STANDARDS.  WE CANNOT SAY THAT THE COMMISSION
IMPERMISSIBLY REFUSED TO COMPLICATE STILL FURTHER THIS PROCEEDING BY
THE ADDITION OF ISSUES CENTERING ON NATIONAL QUALITY STANDARDS. 
MOREOVER, THE GENERAL TERMS OF THE COMMISSION'S ORDER COMMENCING THIS
PROCEEDING REASONABLY ENCOMPASSED QUESTIONS OF QUALITY STANDARDS, 24
F.P.C. 1121, 1124, AND WE DO NOT REGARD THE COMMISSION'S DENIAL OF THE
CONSOLIDATION MOTION AS FORECLOSING THE ULTIMATE ADOPTION OF SUCH
STANDARDS.  THE PRODUCERS' MOTION WAS PREMISED ON THE DESIRABILITY OF
NATIONAL STANDARDS, AND EXPLICITLY RECOGNIZED THAT PRICES AND
IDFFERENCES IN QUALITY "ARE SO INEXTRICABLY TIED TOGETHER THAT THEY
CANNOT BE MEANINGFULLY SEPARATED ONE FROM THE OTHER."  9 JOINT APPENDIX
69D, 71D.  WE CANNOT HOLD THAT THE COMMISSION DENIED THE PRODUCERS FAIR
NOTICE THAT IT MIGHT AS A CONSEQUENCE OF THESE HEARINGS IMPOSE QUALITY
STANDARDS.     /90/  IT IS ARGUED VIGOROUSLY THAT THE STANDARDS ADOPTED
BY THE COMMISSION LACK SUBSTANTIAL BASIS IN THE RECORD.  EMPHASIS IS
PLACED CHIEFLY ON THE EXAMINER'S STATEMENT THAT IT WOULD BE "PROBABLY
IMPOSSIBLE ON THIS RECORD . . . TO ESTABLISH A COMPLETE SET OF
DIFFERENTIALS FOR THE VARIOUS VALUE AND QUALITY CHARACTERISTICS OF
GAS."  34 F.P.C.,AT 368.  SEE ALSO 1 JOINT APPENDIX 123-136.  WE
BELIEVE THIS STATEMENT TO BE INAPPOSITE TO THE ISSUES BEFORE US.  THE
COMMISSION DID NOT CREATE SUCH A SET OF DIFFERENTIALS; IT MERELY
POSITED A SERIES OF PIPELINE STANDARDS, AND PLACED THE RESPONSIBILITY
FOR REACHING SPECIFIC PRICE DIFFERENTIALS UPON THE PARTIES TO EACH
SALE.  IT INDICATED THAT IT WOULD ACCEPT ANY AGREEMENT THAT APPEARED TO
BE A GOOD-FAITH EFFORT TO DETERMINE THE PERTINENT PROCESSING COSTS.  IT
SHOULD BE NOTED THAT AT LEAST ONE WITNESS TESTIFIED THAT NEGOTIATION
AMONG THE RELEVANT PARTIES IS THE PROPER METHOD FOR MEASUREMENT OF
PROCESSING COSTS.  SEE 3 JOINT APPENDIX 983.  FURTHER, VARIOUS
ESTIMATES OF QUALITY ADJUSTMENTS WERE PROVIDED BY WITNESSES BEFORE THE
EXAMINER.  SEE 5 ID., AT 1769-1771, 1867-1899, 1907-1908.  WE CONCLUDE
THAT THE COMMISSION'S FINDINGS ON THESE QUESTIONS ARE ADEQUATELY
SUPPORTED BY THE RECORD. 

/91/  COMMISSIONER O'CONNOR ARGUED FORCEFULLY IN A CONCURRING AND
DISSENTING OPINION THAT THE COMMISSION'S ADOPTION OF HIGH AND LOW BTU
STANDARDS WAS UNFAIR TO PRODUCERS.  34 F.P.C.,AT 267-268.  THE COURT OF
APPEALS INDICATED THAT IT WAS UNABLE TO UNDERSTAND THE REASONS FOR THE
DUAL STANDARD.  375 F.2D, AT 31.  WE AGREE THAT THE COMMISSION MIGHT
HAVE DEALT MORE CLEARLY WITH THESE QUESTIONS, BUT WE HAVE FOUND NO
BASIS ON WHICH WE CAN SET ASIDE ITS JUDGMENT.  THE COMMISSION FOUND
THAT, BY PREVAILING PRACTICE, THE MINIMUM BTU STANDARD IN THE PERMIAN
BASIN WAS 1,000 PER CUBIC FOOT; THE AVERAGE BTU CONTENT IS, HOWEVER, IN
A RANGE OF 1,034 TO 1,042 PER CUBIC FOOT.  34 F.P.C.,AT 223, 267-268. 
IT CONCLUDED THAT IT WOULD REQUIRE DOWNWARD PRICE ADJUSTMENTS ONLY
WHERE BTU CONTENT IS LESS THAN 1,000, AND PERMIT UPWARD ADJUSTMENT ONLY
WHERE IT EXCEEDS 1,050 PER CUBIC FOOT.  ALTHOUGH THIS IS EVIDENTLY LESS
FAVORABLE TO PRODUCERS THAN OTHER POSSIBLE FORMULAE, WE HAVE FOUND NO
EVIDENCE THAT SUGGESTS THAT IT IS ARBITRARY, OR AN ABUSE OF THE
COMMISSION'S AUTHORITY.  COMPARE INITIAL DECISION, AREA RATE PROCEEDING
(SOUTHERN LOUISIANA AREA), NO. AR61-2, ISSUED DECEMBER 30, 1966, AT 180
183. 

/92/  THE COMMISSION POINTED OUT THAT SELLERS OF GAS-WELL GAS
RECEIVE PAYMENTS FOR "LIQUID HYDROCARBONS EXTRACTED FROM THE GAS BY THE
PIPELINES."  34 F.P.C.,AT 1073.  THESE PAYMENTS MAY AMOUNT TO 0.6 CENTS
TO 0.8 CENTS MCF IN THE PERMIAN BASIN.  IBID.  AN ALLOWANCE OF ONLY
0.2[ PER MCF WAS INCORPORATED BY STIPULATION IN THE NEW GAS-WELL GAS
RATE.  ID., AT 388.  MOREOVER, PRODUCERS RECEIVE "SUBSTANTIAL PAYMENTS"
FOR LIQUIDS EXTRACTED FROM OIL-WELL GAS SOLD UNDER SPRABERRY
CONTRACTS.  ID., AT 1073.  AND SEE N. 111, INFRA.  COMPARE 34 F.P.C.,AT
208-209. 

/93/  THE COMMISSION'S ORDER ACCEPTING QUALITY STATEMENTS FILED BY
PRODUCERS IN THE PERMIAN BASIN INDICATES THAT THE ADJUSTMENTS AVERAGE
0.78[ PER MCF FOR OLD GAS-WELL GAS, AND 0.86[ PER MCF FOR OLD RESIDUE
GAS.  37 F.P.C. 52, 53. 

/94/  BRIEF FOR THE FEDERAL POWER COMMISSION 141. 

/95/  THE COMMISSION EMPHASIZED THAT BECAUSE EXPLORATION "IS FRAUGHT
WITH UNCERTAINTIES FOREIGN TO ITS TRANSMISSION," A "GREATER RETURN"
SHOULD BE ALLOWED.  34 F.P.C.,AT 201.  NONETHELESS, AS WE HAVE FOUND,
THE RATE OF RETURN ACTUALLY PERMITTED BY THE COMMISSION, AFTER
ALLOWANCE FOR QUALITY AND OTHER ADJUSTMENTS, DOES NOT SUBSTANTIALLY
EXCEED THAT PERMITTED TO PIPELINES.  WE NOTE, HOWEVER, THAT THE RISKS
INCIDENTAL TO EXPLORATION HAVE NOT ALWAYS BEEN THOUGHT TO BE GREATLY IN
EXCESS OF THOSE INCIDENTAL TO TRANSMISSION.  SEE KITCH, SUPRA, AT 201. 
AND SEE ON THE INSURANCE PRINCIPLE, NELSON, PERCENTAGE DEPLETION AND
NATIONAL SECURITY, REPRINTED IN FEDERAL TAX POLICY FOR ECONOMIC GROWTH
AND STABILITY, PAPERS SUBMITTED TO THE JOINT COMMITTEE ON THE ECONOMIC
REPORT, 84TH CONG., 1ST SESS., 463, 470 (COMM. PRINT 1955).  SEE ALSO
DIRLAM, NATURAL GAS:  COST, CONSERVATION, AND PRICING, 48 AM.ECON.REV. 
491, 498.  AND COMPARE 3 JOINT APPENDIX 907. 

/96/  FPC V. HOPE NATURAL GAS CO., SUPRA, AT 602. 

/97/  THE COMMISSION FIRST EMPHASIZED THAT "WE MAKE CLEAR THAT WE DO
NOT CONFINE OURSELVES TO A COST CALCULATION IN DETERMINING JUST AND
REASONABLE RATES."  34 F.P.C.,AT 190.  IT LATER SAID THAT "THERE IS NO
JUSTIFICATION IN THIS AREA FOR ANY ADJUSTMENT OF A COST-DETERMINING
CEILING PRICE."  IT ADDED THAT "NO SUCH (NONCOST) ADJUSTMENTS ARE
REQUIRED IN THE PERMIAN BASIN."  ID., AT 207.  YET IT IS QUITE PLAIN
THAT THE COMMISSION'S RATE STRUCTURE IS, AND WAS INTENDED TO BE,
SIGNIFICANTLY INFLUENCED BY "NON-COST CONSIDERATIONS."  UNFORTUNATELY,
THE COMMISSION NEVER PAUSED TO RECONCILE THESE GENERAL OBSERVATIONS
WITH THE SPECIFIC TERMS OF ITS RATE STRUCTURE. 

/98/  WE UNDERSTAND THE PRINCIPAL POINTS AT WHICH THE COMMISSION
EMPLOYED NONCOST FACTORS TO BE FOUR.  IT USED THE LOGIC OF FUNCTIONAL
PRICING TO JUSTIFY BOTH ITS TWO-PRICE RATE STRUCTURE AND ITS SELECTIONS
OF SOURCES OF COST DATA.  SECOND, IT EXPLAINED ITS IMPOSITION OF A
SINGLE MAXIMUM RATE UPON ALL OLD GAS BY, AMONG OTHER REASONS, THE
IMPORTANCE OF A RELATIVELY UNCOMPLICATED RATE STRUCTURE.  THIRD, THE
COMMISSION JUSTIFIED ITS ADOPTION OF A TEMPORARY PERIOD OF PRICE
RESTRICTION BY THE EXIGENCIES OF AREA REGULATION.  FOURTH, THE
COMMISSION BASED ITS CALCULATION OF THE RATE OF RETURN UPON RISK
FACTORS THAT IT DID NOT DIRECTLY REDUCE TO COST COMPONENTS. 

/99/  WE ARE COGNIZANT, AS PRESUMABLY IS THE COMMISSION, OF THE
FORCEFUL ARGUMENT THAT THE COMPUTATION OF RATES FROM COSTS IS
ULTIMATELY CIRCULAR.  SEE KITCH, SUPRA, AT 195-196; COMPARE KAHN,
SUPRA, AT 510-514.  SEE ALSO ECKSTEIN, SUPRA, AT 129-131.  THE
COMMISSION HAS NOT, HOWEVER, RELIED SIMPLY UPON COST COMPUTATIONS, AND
WE HAVE FOUND NO BASIS ON WHICH WE COULD NOW PROPERLY SET ASIDE THE
COMMISSION'S ORDERS.  WE ASSUME THAT THE COMMISSION WILL CONTINUE TO
EXAMINE BOTH THE PREMISES OF ITS REGULATORY METHODS AND THE
CONSEQUENCES FOR THE INDUSTRY'S FUTURE OF ITS RATE-MAKING ORDERS. 
NOTHING UNDER THE ACT OR THE CASES OF THIS COURT COMPELS THE COMMISSION
TO REDUCE ITS REGULATORY FUNCTIONS TO SELF-FULFILLING PROPHECIES. 
COMPARE CITY OF DETROIT V. FPC, 230 F.2D 810, 818. 

/100/  THE RATIO "HAS BEEN AS HIGH AS 32.5 TO 1 IN 1946 AND IT HAS
STEADILY DECLINED TO ABOUT 18.7 TO 1 IN 1963 . . . . "  34 F.P.C.,AT
183.  AT YEAR END OF 9165, PROVED RECOVERABLE RESERVES TOTALED 286.5
TRILLION CUBIC FEET; WITHDRAWALS IN 1965 WERE 16.25 TRILLION CUBIC
FEET.  AMERICAN GAS ASSOCIATION, 1966 GAS FACTS 1 (1966).  THESE
QUESTIONS MAY BE TRACED IN TESTIMONY AT 1 JOINT APPENDIX 20-34, 76-95,
97-111, 352-360; 2 ID., AT 459-471.  SEE ALSO HOOLEY, SUPRA, 5-25. 

/101/  IN 1965, "(GROSS ADDITIONS TO RESERVES AGGREGATED 21.3
TRILLION CUBIC FEET, THE THIRD HIGHEST SINCE THE NATURAL GAS RESERVES
COMMITTEE INITIATED ITS REPORTS IN 1946."  AMERICAN GAS ASSOCIATION,
SUPRA, AT 5.  FURTHER, "(OVER THE PAST TWENTY YEARS, GROSS ADDITIONS
HAVE RESULTED IN MORE THAN 343 TRILLION CUBIC FEET BEING ADDED TO THE
NATION'S PROVED RESERVES OF NATURAL GAS.  DURING THIS SAME PERIOD, NET
PRODUCTION OF NATURAL GAS TOTALED 207 TRILLION CUBIC FEET."  IBID.  SEE
FOR SIMILAR EVIDENCE, AMERICAN GAS ASSOCIATION, 1967 GAS FACTS 5
(1967).  IT IS, HOWEVER, PROPER TO RECOGNIZE THAT THE RATIO OF NEW
DISCOVEREIES TO ANNUAL NET PRODUCTION HAS GENERALLY DECLINED SINCE
1946, ALTHOUGH THE DECLINE IS NEITHER STEEP NOR CONSISTENT.  SEE 34
F.P.C., AT 319; 1 JOINT APPENDIX 76-95, 97-111.  AND SEE GENERALLY
CRAM, INTRODUCTION TO THE PROBLEM OF DEVELOPING ADEQUATE SUPPLIES OF
NATURAL GAS, SOUTHWESTERN LEGAL FOUNDATION, ECONOMICS OF THE GAS
INDUSTRY 1 (1962). 

/102/  IT IS PERTINENT THAT THE AMERICAN GAS ASSOCIATION IN 1957
OBSERVED OF THE RESERVES-TO-PRODUCTION RATIO THAT SO "LONG AS NEW
ADDITIONS EXCEED PRODUCTION THERE NEED BE LITTLE CAUSE FOR CONCERN
ABOUT SUCH AN HYPOTHETICAL RATIO."  1957 GAS FACTS 6 (1957).  SEE FOR
SIMILAR EVIDENCE 34 F.P.C.,AT 309-317. 

/103/  THE PRODUCERS HAVE ARGUED VIGOROUSLY THAT 20 TO 1 IS THE
MINIMUM RESERVES-TO-PRODUCTION RATIO.  THERE IS, HOWEVER, AMPLE
EVIDENCE TO SUPPORT THE COMMISSION'S JUDGMENT THAT LOWER RATIOS ARE
PERMISSIBLE.  ONE INTERVENOR WITNESS FORCEFULLY DESCRIBED THE CONCERN
FOR THAT RATIO AS A "NEUROTIC PREOCCUPATION."  1 JOINT APPENDIX 357. 
SEE ALSO ID., AT 352-360; AND 2 ID., AT 459-471.  THESE QUESTIONS ARE
USEFULLY DISCUSSED IN TERRY, FUTURE LIFE OF THE NATURAL GAS INDUSTRY,
SOUTHWESTERN LEGAL FOUNDATION, SUPRA, AT 275, 284-285; AND IN
NETSCHERT, ECONOMIC ASPECTS OF NATURAL GAS SUPPLY, ID., AT 27, 56-68. 

/104/  INDEED, THE COMMISSION DESCRIBED THE ADEQUACY OF RESERVES AS
"AN IMPORTANT FACTOR IN OUR DETERMINATION HERE," AND SAID THAT IT WILL
"CONTINUE TO BE AN IMPORTANT FACTOR IN REVIEWING AREA RATES IN THE
FUTURE . . . . "  34 F.P.C.,AT 185. 

/105/  THERE APPEARS TO BE SOME UNCERTAINTY ABOUT THE APPROPRIATE
FIGURES.  COMPARE BRIEF FOR THE FEDERAL POWER COMMISSION 96.  THE
PRODUCERS' USE OF 12.72[ PER MCF IS SUPPORTED BY 7 JOINT APPENDIX
538E. 

/106/  CERTAIN OF THE PRODUCERS URGE THAT THE COMMISSION DESCRIBED
14.5[ AND 16.5[, UNADJUSTED FOR QUALITY DEFICIENCIES, AS THE JUST AND
REASONABLE RATES FOR THE PERMIAN BASIN.  THIS ELLIPSIS MAY SOMETIMES
HAVE ENTERED THE COMMISSION'S OPINION, BUT ON FAIR READING ITS
INTENTIONS SEEM ENTIRELY CLEAR.  SEE 34 F.P.C.,AT 239. 

/107/  IT IS PERTINENT TO REITERATE THAT THE COMMISSION HAS RECNTLY
CALCULATED THE ACTUAL ADJUSTMENTS REQUIRED BY THE QUALITY STATEMENTS
FILED BY PRODUCERS IN THE PERMIAN BASIN THROUGH AUGUST 31, 1966, AS
0.78[ PER MCF FOR OLD GAS-WELL GAS AND 0.86[ PER MCF FOR OLD RESIDUE
GAS.  AREA RATE RPOCEEDING (PERMIAN BASIN AREA), 37 F.P.C. 52, 53. 

/108/  THE COMMISSION STATED THAT "THE EVIDENCE IN THE RECORD MAKES
CLEAR THAT WITH RESPECT TO CASINGHEAD GAS AND RESIDUE GAS DERIVED
THEREFROM (WHICH TOGETHER MAKE UP BY FAR THE LARGEST SHARE OF THE
PERMIAN GAS SUBJECT TO QUALITY ADJUSTMENTS) THE COSTS ARE SUBSTANTIALLY
BELOW THE 14.5 CENTS PER MCF CEILING PRICE."  34 F.P.C.,AT 1072.  AND
SEE ID., AT 356-360. 

/109/  THE COMMISSION POINTED OUT THAT THERE WAS EVIDENCE THAT
SUGGESTED THAT THESE PAYMENTS AVERAGE 0.6[ TO 0.8[ PER MCF FOR GAS-WELL
GAS IN THE PERMIAN BASIN.  34 F.P.C.,AT 1073. 

/110/  THE NEW GAS-WELL GAS RATE INCLUDES A CREDIT OF 0.2[ PER MCF
FOR PLANT LIQUIDS.  34 F.P.C.,AT 197, 1073.  THIS FIGURE WAS DETERMINED
BY STIPULATION.  ID., AT 388.  NO SUCH CREDIT WAS INCLUDED IN THE
FLOWING GAS RATE. 

/111/  THE SPRABERRY, OR EL PASO, CONTRACT IS ONE WHICH PROVIDES
"FOR THE PURCHASE OF CASINGHEAD GAS BY A PIPELINE WHICH PROCESSES THE
GAS, PAYS THE PRODUCER A PERCENTAGE OF THE PROCEEDS FORM THE SALE OF
THE EXTRACTED LIQUIDS, PLUS A FIXED PRICE FOR THE RESIDUE GAS DELIVERED
TO THE PIPELINE."  34 F.P.C.,AT 208.  THE PRESIDING EXAMINER WOULD HAVE
ESSENTIALLY PROHIBITED SUCH CONTRACTS IN THE PERMIAN BASIN, BUT THE
COMMISSION DECLINED TO DO SO.  NONETHELESS, IT ASSERTED JURISDICTION,
WE THINK PROPERLY, OVER THE SALE OF CASINGHEAD GAS UNDER THE CONTRACT. 
THE COMMISSION INDICATED THAT THE PRODUCERS' REVENUE FROM THE CONTRACTS
FOR THE EXTRACTED LIQUIDS IS "SUBSTANTIAL."  34 F.P.C.,AT 1073. 

/112/  COMPARE 34 F.P.C.,AT 209 AND 1072. 

/113/  THE COMMISSION'S CALCULATION OF THE MINIMUM RATE WAS,
HOWEVER, LEFT LARGELY UNEXPLAINED.  THE COMMISSION CLEARLY FOUND THAT
"THE ESTABLISHMENT OF MINIMUM RATES IN THIS CASE IS IN THE PUBLIC
INTEREST AND THAT THE PRICE IMPACE ON THE CONSUMER WILL BE DE
MINIMIS."  34 F.P.C.,AT 231.  IT FAILED TO OFFER ANY EXPLANATION OF ITS
SELECTION OF 9[ AS THE MINIMUM RATE, RELYING ENTIRELY ON THE EXAMINER'S
PREFERENCE FOR THAT FIGURE.  THE EXAMINER ADOPTED TWO MINIMUM RATES:
9[ PER MCF FOR RESIDUE AND GAS-WELL GAS, AND 7[ PER MCF FOR CASINGHEAD
GAS.  HIS CALCULATIONS WERE EVIDENTLY PREMISED ON HIS COMPUTATION OF
THE REVENUE STANDARD FOR THE VARIOUS CLASSES OF NATURAL GAS.  SEE ID.,
AT 369.  THE COMPOSITE EXPLANATION FOR THE CHOICE OF 9[ AS THE AREA
MINIMUM RATE IS THUS IMPRECISE.  NONETHELESS, THE COMMISSION REASONABLY
CONCLUDED THAT A MINIMUM RATE WAS IMPERATIVE, AND THERE IS NO EVIDENCE
BEFORE US THAT PERMITS THE CONCLUSION THAT ITS SELECTION WAS UNJUST OR
UNREASONABLE. 

/114/  TWO ADDITIONAL ISSUES SHOULD PROPERLY BE SEPARATELY
CONSIDERED.  FIRST, THE STATES OF TEXAS AND NEW MEXICO HAVE URGED THAT
WE RECONSIDER HOPE, AND REQUIRE THE COMMISSION TO GIVE SPECIAL WEIGHT
TO THE PROBABLE EFFECTS OF ITS ORDERS ON THE ECONOMICS OF PRODUCING
STATES.  WE HAVE EXAMINED THESE CONTENTIONS, BUT DECLINE TO MODIFY THE
TREATMENT OF THE SIMILAR QUESTIONS IN HOPE.  SEE 320 U.S.,AT 607-614. 
AS WE SAID THERE, WE DO NOT "SUGGEST THAT CONGRESS WAS UNMINDFUL OF THE
INTERESTS OF THE PRODUCING STATES . . . WHEN IT DRAFTED THE NATURAL GAS
ACT."  ID., AT 612.  BUT TO GO AS FAR AS TEXAS AND NEW MEXICO NOW ASK
"RAISES QUESTIONS TO POLICY WHICH GO BEYOND OUR PROVINCE."  ID., AT
614.     SECOND, THE COMMISSION INDICATED THAT IT WOULD APPLY THESE
AREA RATES TO SALES INITIATED DURING THE PENDENCY OF THESE
PROCEEDINGS.  34 F.P.C.,AT 237.  SEE ORDER ISSUING CERTIFICATES, ID.,
AT 418.  THE EFFECT OF THIS ORDER IS TO IMPOSE THESE RATES AS THE IN
LINE RATE FOR THE PERMIAN BASIN FOR PERIODS PRIOR TO THE COMMISSION'S
DECISION IN THESE PROCEEDINGS.  SEE GENERALLY UNITED GAS V. CALLERY
PROPERTIES, 382 U.S. 223-228.  THE COURT OF APPEALS FOUND IT UNNCESSARY
TO DECIDE THE PROPRIETY OF THIS ARRANGEMENT.  375 F.2D, AT 35-36. 
NONETHELESS, WE BELIEVE THAT IN THE CIRCUMSTANCES HERE PRESENTED IT IS
APPROPRIATE TO RESOLVE THIS ISSUE WITHOUT AWAITING CONSIDERATION BY
THAT COURT.  COMPARE CHICAGO & N.W.R. CO. V. A., T. & S.F.R. CO., 387
U.S. 326, 255-256.  WE HOLD THAT THE COMMISSION WAS NOT FORBIDDEN TO
EMPLOY THE AREA RATES AS THE IN-LINE RATE FOR PURPOSES OF SALES
INITIATED AFTER COMMENCEMENT OF ITS PROCEEDINGS, BUT BEFORE ITS FINAL
DECISION.  THE AREA RATES WERE PROPERLY CALCULATED AS THE JUST AND
REASONABLE RATES FOR THE PERMIAN BASIN FOR PERIOD SUBSEQUENT TO THE
PERIODS AT ISSUE, ON THE BASIS OF COST FACTORS BELIEVED TO BE STABLE
THROUGHOUT THESE PERIODS.  AS THE COMMISSION OBSERVED, TO PREVENT THEIR
USE AS THE IN-LINE RATE "WOULD REQUIRE AN UNENDING SUCCESSION OF
INSTITUTED PRIOR TO THE INSTITUTION OF THE PROCEEDING."  34 F.P.C.,AT
237.  WE NEED NOT, HOWEVER, DETERMINE FOR WHAT FURTHER PERIODS OR IN
WHAT OTHER CIRCUMSTANCES THE COMMISSION MAY USE UNADJUSTED AREA RATES
AS IN-LINE RATES.  ORDERS INVOLVING SEC. 7 PROCEEDINGS COMMENCED AFTER
THE COMMISSION'S DECISION IN THESE PROCEEDINGS WERE NOT BEFORE THE
COMMISSION, AND ARE NOT NOW BEFORE THE COURT. 

/115/  IT IS, HOWEVER, PROPER TO TAKE SPECIAL NOTICE OF VARIOUS
ARGUMENTS THAT HAVE BEEN VIGOROUSLY PRESSED BY CERTAIN OF THE
PRODUCERS.  FIRST, IT IS URGED THAT THE COMMISSION SHOULD HAVE INCLUDED
AN ALLOWANCE FOR FEDERAL INCOME TAXES IN THE RATE FOR NEW GAS-WELL
GAS.  IT APPEARS THAT THE PRODUCERS ORIGINALLY PRESENTED NO EVIDENCE
SUPPORTING SUCH AN ALLOWANCE, AND THT PRODUCER WITNESSES DID NOT
INCLUDE SUCH COSTS IN THEIR COMPUTATIONS.  FURTHER, THERE WAS EVIDENCE
THAT THE COMPUTATION OF SUCH AN ALLOWANCE WOULD BE DIFFICULT, SEE 3
JOINT APPENDIX 992, AND THAT, IN ANY EVENT, THE PRODUCERS WILL INCUR
"NO FEDERAL INCOME TAX LIABILITY AT ANY RETURN UP TO 15 PERCENT."  34
F.P.C.,AT 206.  IN THESE CIRCUMSTANCES, WE THINK THAT THE COMMISSION
DID NOT ERR IN EXCLUDING SUCH AN ALLOWANCE. 

SECOND, IT IS URGED THAT THE COMMISSION FAILED TO INCLUDE AN
ADEQUATE ALLOWANCE FOR EXPLORATION COSTS.  WE MUST EMPHASIZE THAT WE
PERCEIVE NO OBLIGATION UPON THE COMMISSION, UNDER THE CONSTITUTION OR
THE NATURAL GAS ACT, TO PERMIT RECOVERY OF ALL EXPLORATION COSTS,
REGARDLESS OF THEIR AMOUNT AND PRUDENCE.  ALTHOUGH OTHER METHODS OF
COMPUTING THESE COSTS MIGHT HAVE BEEN USED BY THE COMMISSION, SEE ID.,
AT 192-193, WE HAVE FOUND NOTHING THAT WOULD PROPERLY PERMIT REVERSAL
OF THE COMMISSION'S JUDGMENT. 

FINALLY, SUN OIL ASSERTS THAT IT WAS AT VARIOUS POINTS DENIED DUE
PROCESS.  IT IS ENOUGH TO SAY THAT WE HAVE EXAMINED THESE CONTENTIONS,
AND FIND THEM WITHOUT SUBSTANCE. 

/116/  WE NOTE THAT THE TERMS OF THE STAY ENTERED BY THE COURT OF
APPEALS ON JANUARY 20, 1966, WOULD REDUCE THIS RATE OF INTEREST TO 4
1/2%.  SEE 12 TRANSCRIPT OF RECORD 12, 13-14.  THE COURT OFFERED NO
EXPLANATION OF THIS MODIFICATION OF THE COMMISSION'S ORDERS.  WE
PERCEIVE NO BASIS FOR THE COURT'S ORDER, PARTICULARLY SINCE THE
QUESTION WAS EVIDENTLY NOT RAISED IN THE PRODUCERS' APPLICATIONS TO THE
COMMISSION FOR REHEARING.  SEE SEC. 19(B), 15 U.S.C. 717RB).  AND SEE
WISCONSIN V. FPC, 373 U.S. 294, 307.  WE HOLD THAT THE COMMISSION'S
ORDER IMPOSING INTEREST AT 7% MUST BE RESTORED. 

/117/  WE UNDERSTAND THESE INTEREST RATES TO BE IN SOME CASES 6% AND
IN OTHERS 7%.  BRIEF FOR THE FEDERAL POWER COMMISSION 169. 

/118/  A LOCKED-IN RATE IS ONE IN WHICH AN "INCREASED RATE IS LATER
SUPERSEDED BY A FURTHER INCREASE . . . . "  IT IS THUS "EFFECTIVE ONLY
FOR THE LIMITED INTERVENING PERIOD, CALLED THE 'LOCKED-IN' PERIOD, AND
RETAINS SIGNIFICANCE IN SEC. 4(E) PROCEEDINGS ONLY IN RESPECT OF ITS
REFUNDABILITY IF FOUND UNLAWFUL."  WISCONSIN V. FPC, SUPRA, AT 298, N.
5. 

/119/  SEE BRIEF FOR THE FEDERAL POWER COMMISSION IN NOS. 72, 73,
74, OCTOBER TERM, 1962, 48-53. 

/120/  COMPARE FPC V. TENNESSEE GAS CO., 371 U.S. 145, 152-153. 

/121/  WE NOTE THAT MOBIL AND OTHERS HAVE ARGUED VIGOROUSLY THAT THE
COMMISSION'S REFUND FORMULAE WOULD IMPOSE OBLIGATIONS TO REFUND AMOUNTS
BELOW THE "LAST CLEAN RATE."  THE LATTER IS A RATE ESTABLISHED BY A
FINAL PERMANENT CERTIFICATE UNCONDITIONED BY A REFUND OBLIGATION UNDER
EITHER SEC. 7 OR SEC. 4(E).  THE COMMISSION CONCLUDED THAT IT NEED NOT
REACH THIS QUESTION SINCE "NO SUCH SITUATION HAS BEEN PRESENTED AS
RESULTING FROM OUR ORDER HEREIN."  34 F.P.C.,AT 1074-1075.  AND SEE
GULF OIL CORP., 35 F.P.C. 375.  GIVEN THE COMMISSION'S POSTPONEMENT OF
THE QUESTION, WE INTIMATE NO VIEWS ON THE PROPER LIMITATIONS OF THE
COMMMISSION'S AUTHORITY IN THIS REGARD. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I. 

WHAT THE COURT DOES TODAY CANNOT BE RECONCILED WITH THE CONSTRUCTION
GIVEN THE NATURAL GAS ACT BY FPC V. HOPE NATURAL GAS CO., 320 U.S. 591,
602.  IN THAT CASE WE SAID, IN DETERMINING WHETHER A RATE HAD BEEN
PROPERLY FOUND TO BE "JUST AND REASONABLE" UNDER THE ACT, THAT 

(1) "IT IS THE RESULT REACHED NOT THE METHOD EMPLOYED WHICH IS
CONTROLLING"; 

(2) IT IS "NOT THEORY BUT THE IMPACT OF THE RATE ORDER WHICH
COUNTS"; 

(3) "IF THE TOTAL EFFECT OF THE RATE ORDER CANNOT BE SAID TO BE UNJUST
AND UNREASONABLE, JUDICIAL INQUIRY UNDER THE ACT IS AT AN END." 

THE AREA RATE ORDERS CHALLENGED HERE ARE BASED ON AVERAGES.  /1/  NO
SINGLE PRODUCER'S ACTUAL COSTS, ACTUAL RISKS, ACTUAL RETURNS,ARE
KNOWN. 

THE "RESULT REACHED" AS TO ANY PRODUCER IS NOT KNOWN. 

THE "IMPACT OF THE RATE ORDER" ON ANY PRODUCER IS NOT KNOWN. 

THE "TOTAL EFFECT" OF THE RATE ORDER ON A SINGLE PRODUCER IS NOT
KNOWN. 

IT IS SAID, HOWEVER, THAT IF ANY PRODUCER IS AGGRIEVED, IT MAY APPLY
FOR RELIEF AND IF IT FAILS TO OBTAIN RELIEF IT CAN RESORT TO THE
COURTS.  BUT UNLESS WE KNOW THE STANDARDS WHICH WILL GOVERN IN CASE IT
APPLIES FOR RELIEF, WE ARE, WITH ALL RESPECT, MOUTHING MERE WORDS WHEN
WE SAY THE RATE IS "JUST AND REASONABLE."  IN ABSENCE OF KNOWLEDGE, WE
CANNOT POSSIBLY PERFORM OUR FUNCTION OF JUDICIAL REVIEW, LIMITED THOUGH
IT BE. 

IT WAS URGED IN THE SEPARATE OPINION OF MR. JUSTICE JACKSON IN HOPE
THAT A SYSTEM OF REGULATION BE AUTHORIZED WHICH WOULD CENTER NOT ON THE
PRODUCER BUT ON THE PRODUCT "WHICH WOULD BE REGULATED WITH AN EYE TO
AVERAGE OR TYPICAL PRODUCING CONDITIONS IN THE FIELD."  320 U.S.,AT
652.  BUT THE COURT REJECTED THAT APPROACH, SAYING THAT SECS. 4(A) AND
5(A) OF THE NATURAL GAS ACT CONTAINED "ONLY THE CONVENTIONAL STANDARDS
OF RATE-MAKING FOR NATURAL GAS COMPANIES."  ID., AT 616. 

GROUP REGULATION OF RATES IS NOT, OF COURSE, NOVEL.  IT HAS AT TIMES
BEEN AUTHORIZED.  THE FEDERAL AVIATION ACT OF 1958, SEC. 1002(E), 72
STAT. 789, 49 U.S.C. 1482(E), PERMITS IT.  AND SEE GENERAL PASSENGER
FARE INVESTIGATION, 32 C.A.B. 291.  UNDER THE WAR POWER, EXTENSIVE
PRICE REGULATION ON A GROUP BASIS WAS SUSTAINED.  BOWLES V. WILLINGHAM,
321 U.S. 503, 517-519.  THE INTERSTATE COMMERCE COMMISSION HAS
UNDERTAKEN IT, AS REVEALED BY THE DIVISIONS OF REVENUE CASES.  NEW
ENGLAND DIVISIONS CASE, 261 U.S. 184; UNITED STATES V. ABILENE & S.R.
CO., 265 U.S. 274; CHICAGO & N.W. R. CO. V. A., T. & S.F.R. CO., 387
U.S. 326.  SEE ALSO SEC. 15 OF THE INTERSTATE COMMERCE ACT, AS AMENDED,
24 STAT. 384, 49 U.S.C. 15(3).  THE REQUIREMENT IN THE DIVISIONS OF
REVENUE CASES IS THAT THE GROUP EVIDENCE BE "TYPICAL IN CHARACTER, AND
AMPLE IN QUANTITY, TO JUSTIFY THE FINDING MADE IN RESPECT TO EACH
DIVISION OF EACH RATE OF EVERY CARRIER."  261 U.S.,AT 196-197.  IN
OTHER WORDS, WHERE THE RATES FIXED WILL RECOVER THE TYPICAL GROUP COST
OF SERVICE, THE INDIVIDUAL PRODUCER'S RIGHT TO A MINIMUM OF ITS
OPERATING EXPENSES AND CAPITAL CHARGES IS PROTECTED.  COST OF SERVICE
INCLUDES OPERATING EXPENSES AND CAPITAL CHARGES.  FPC V. NATURAL GAS
PIPELINE CO., 315 U.S., 607 (CONCURRING OPINION).  WITH THAT PROTECTION
I CAN SEE NO REASON WHY GROUP RATES MAY NOT BE SANCTIONED HERE.  BUT
MORE IS REQUIRED THAN THE COMMISSION UNDERTOOK TO DO IN THESE CASES. 

IN THE PRESENT CASES THE COMMISSION FOUND AVERAGES; BUT THERE ARE NO
FINDINGS AS TO THE TYPICALITY AND REPRESENTATIVE NATURE OF THOSE
AVERAGES.  /2/  WE CERTAINLY CANNOT TAKE JUDICIAL NOTICE THAT THE
AVERAGES ARE TYPICAL.  MR. JUSTICE BRANDEIS IN THE LEADING DIVISIONS OF
REVENUE CASE SAID THAT "AVERAGES ARE APT TO BE MISLEADING" AND THEY
CANNOT BE ACCEPTED "AS A SUBSTITUTE FOR TYPICAL EVIDENCE."  265 U.S.,AT
291.  CF. AMERICAN MOTORS CORP. V. FTC, 384 F.2D 247, 251-259, 260-262
(C.A. 6TH CIR. 1967). 

THE COMMISSION FOUND NO MEDIAN.  MOREOVER, AS WE OBSERVED IN ANOTHER
CONTEXT, IT DID NOT FIND WHAT WAS "THE AVERAGE COST" OF GROUPS MADE UP
OF INDIVIDUAL MEMBERS WHO HAVE "A CLOSE RESEMBLANCE" WHEN IT COMES TO
THE "ESSENTIAL POINT OR POINTS WHICH DETERMINE THE COSTS CONSIDERED." 
UNITED STATES V. BORDEN CO., 370 U.S. 460, 469. 

WITH RESPECT TO THE COST OF NEW GAS-WELL GAS, THE COMMISSION DID NOT
DETERMINE WHETHER THE AVERAGE COSTS COMPILED FROM THE QUESTIONNAIRES OR
DERIVED FROM INDUSTRY-WIDE DATA WERE TYPICAL OR REPRESENTATIVE. 

IN FINDING THE COST OF FLOWING GAS, THE COMMISSION NOTED THAT THE
1960 LEVEL OF COSTS COMPILED BY THE STAFF IN LARGE PART FROM THE
QUESTIONNAIRE RESPONSES WAS "FAIRLY REPRESENTATIVE OF THE COSTS DURING
THE THREE YEAR PERIOD ENDING IN 1960" (34 F.P.C. 159, 213) AND THAT
"(THE 1960 TEST YEAR IS . . . TYPICAL OF CURRENT AND FUTURE COSTS OF
THE FLOWING GAS . . . . "  IBID.  THIS REFERENCE TO "REPRESENTATIVE"
AND "TYPICAL" COSTS, HOWEVER, DEALT ONLY WITH THE QUESTION OF TIME--
I.E., THE STAFFS USED OF 1960 DATA IN DEVELOPING ITS COMPOSITE COST
PRESENTATION WAS DEEMED PERMISSIBLE SINCE 1960 WAS FOUND TO BE A
TYPICAL AND RESPRESENTATIVE YEAR. 

THE COURT PROFESSES TO FIND THAT THE COMMISSION ADEQUATELY
DETERMINED THAT THE AVERAGES IT EMPLOYED WERE "TYPICAL" AND
"REPRESENTATIVE."  ANTE, AT 802-803, N. 79.  BUT THE STATEMENTS PLUCKED
FROM THE COMMISSION'S OPINION DO NOT SUPPORT THAT INTERPRETATION. 

THE COMMISSION ALSO OBSERVED, WITH RESPECT TO THE QUESTIONNAIRE
DATA, THAT 42 OF THE MAJOR PRODUCERS (REPRESENTING ALL BUT ONE OF THE
MAJOR PRODUCERS IN THE PERMIAN AREA) RESPONDED ON THE APPENDIX B
QUESTIONNAIRES.  THE COMMISSION AGREED WITH THE EXAMINER THAT "THE DATA
PROVIDED BY THE MAJOR PRODUCERS WITH RESPECT TO THEIR PERMIAN
PRODUCTION WAS FULLY REPRESENTATIVE OF AREA COSTS," AND THAT EXCLUSION
OF THE APPENDIX C RETURNS FROM SMALL PRODUCERS WOULD HAVE ONLY A DE
MINIMIS EFFECT.  34 F.P.C.,AT 214.  BUT ALTHOUGH THE DATA SUBMITTED BY
THE MAJOR PRODUCERS WERE FOUND TO BE TYPICAL DATA FOR THE AREA, AND I
ASSUME ALSO FOR THE MAJOR PRODUCERS IN THE AREA, THERE ARE NO FINDINGS
WHETHER THE AVERAGES COMPILED FROM THE DATA WERE TYPICAL OR
REPRESENTATIVE OF THE COSTS OF THOSE MAJOR PRODUCERS OR OF OTHER
PRODUCERS IN THE AREA. 

THE COMMISSION'S STATEMENT TAHT THE SOURCES USED "IN COMBINATION
PROVIDE AN ADEQUATE BASIS FOR COSTS WE HAVE FOUND" CERTAINLY CANNOT BE
READ AS A FINDING THAT THOSE SOURCES WERE "TYPICAL AND
REPRESENTATIVE."  NOR DOES THE FACT THAT THE SOURCES WERE "RECOGNIZED,
PUBLISHED STATISTICAL DATA SOURCES," OR "WELL-RECOGNIZED AND
AUTHORITATIVE," MEAN THEY ALSO CONTAINED TYPICAL AND REPRESENTATIVE
AVERAGES. 

AN AVERAGE COST IS NOT ONLY APT TO BE "MISLEADING"; IT MAY INDEED
NOT BE REPRESENTATIVE OF ANY PRODUCER. 

THE COMMISSION ALLOWED A 12% RATE OF RETURN, THE RETURN BEING "ON
CAPITAL INVESTED IN FINDING NEW GAS WELL GAS."  34 F.P.C.,AT 306, 343. 
"PRODUCTION INVESTMENT COSTS" CONSTITUTED THIS "CAPITAL INVESTED" AND
WERE THE BASES TO WHICH THE COMMISSION APPLIED THE 12% RATE TO ARRIVE
AT A RETURN OF 5.21[ PER MCF TO BE INCLUDED IN THE RATE BASE FOR NEW
GAS-WELL GAS.  34 F.P.C.,AT 197, 204.  THESE "PRODUCTION INVESTMENT
COSTS" INCLUDED SUCCESSFUL WELL COSTS, LEASE ACQUISITION COSTS, AND THE
COST OF OTHER PRODUCTION FACILITIES.  BUT THEY WERE LIKEWISE DETERMINED
ON THE BASIS OF AVERAGES.  SEE 34 F.P.C.,AT 197-198, 295, 377-382. 

THE AVERAGE PER CAPITA INCOME OF A MIDDLE EAST KINGDOM IS SAID TO BE
$1,800 A YEAR.  BUT SINCE ONE MAN-- OR FAMILY-- GETS MOST OF THE MONEY,
$1,800 A YEAR DESCRIBES ONLY A MYTHICAL RESIDENT OF THAT COUNTRY. 

THE 12% RETURN ALLOWED BY THE COMMISSION AND COMPUTED ON AN AVERAGE
COST BASIS MAY LIKEWISE HAVE NO RELATION WHATEVER TO THE REALITY OF THE
ACTUAL COSTS OF ANY PRODUCER. 

ONE PRODUCER'S COST, THOUGH VARYING FROM YEAR TO YEAR, MAY AVERAGE
OUT AT $1 PER MCF.  ANOTHER'S MAY AVERAGE OUT AT 5[ PER MCF.  DOES THAT
MAKE 52.5[ PER MCF REPRESENTATIVE OF EITHER PRODUCER OR TYPICAL OF ALL
PRODUCERS, OR, INDEED, TYPICAL OF ANY PRODUCER, EVEN IF THE 52.5[ PER
MCF IS STABLE OVER THE ENTIRE PERIOD OF YEARS? 

THE COMMISSION COULD FOLLOW THE HEAD OF THE INTERSTATE COMMERCE
COMMISSION AND PRODUCE RATES ON A GROUP BASIS.  BUT IT SIMPLY HAS NOT
DONE SO IN ANY RATIONAL WAY. 

AVERAGES ARE APT TO TAKE US WITH ALICE INTO WONDERLAND.  THAT IS ONE
REASON WHY THE CASE SHOULD BE REMANDED TO THE COMMISSION FOR FURTHER
FINDINGS. 

THE COMMISSION WILL ALLOW INDIVIDUAL APPLICATION FOR RELIEF FROM
THESE NEW RATES.  BUT IT HAS NOT PRESCRIBED THE TERMS AND CONDITIONS ON
WHICH RELIEF WILL BE GRANTED.  IT HAS SAID, HOWEVER, THAT AN INDIVIDUAL
PRODUCER MUST SHOW MORE THAN THAT ITS COST OF SERVICE IS GREATER THAN
THE AVERAGES ON WHICH THE RATE IS BASED.  34 F.P.C.,AT 180.     IN A
REGULATED INDUSTRY THERE IS NO CONSTITUTIONAL GUARANTEE THAT THE MOST
INEFFICIENT WILL SURVIVE.  HEGEMAN FARMS CORP. V. BALDWIN, 293 U.S.
163, 170-171. 

THAT ASSUMES, HOWEVER, AN ABILITY TO WITHDRAW FROM THE BUSINESS. 
BUT A PRODUCER OF NATURAL GAS MAY NOT ABANDON ITS EXISTING FACILITIES
THAT SUPPLY THE INTERSTATE MARKET WITHOUT COMMISSION APPROVAL.  UNITED
GAS PIPE LINE CO. V. FPC, 385 U.S. 83. 

THE COMMISSION SAYS THAT A PRODUCER WILL BE ABLE TO OBTAIN RELIEF TO
COVER ITS OUT-OF-POCKET EXPENSES.  34 F.P.C.,AT 226.  DO THEY INCLUDE
RETURN, DEPRECIATION, DEPLETION, EXPLORATION, DEVELOPMENT, AND
OVERHEAD?  THE COURT OF APPEALS DID NOT KNOW (375 F.2D, AT 30); AND WE
CERTAINLY DO NOT.  THE REMAND BY THE COURT OF APPEALS FOR FURTHER
DEFINITION WAS THEREFORE CLEARLY NECESSARY.  FOR EVEN IF WE NEED NOT
KNOW THE PRECISE IMPACT OF THE NEW GROUP RATE ON EACH PRODUCER AT THE
TIME OF THE GROUP RATE ORDER, WE CERTAINLY MUST KNOW THE CONDITIONS ON
WHICH A PRODUCER CAN GET RELIEF BEFORE WE CAN SAY THAT A RATE AS TO IT
IS "JUST AND REASONABLE." 

ALTHOUGH WE ASSUME THAT THE ACT AUTHORIZES GROUP RATE-MAKING, WE
CANNOT DISREGARD THE BASIC STRUCTURE OF THE ACT, PATTERNED ON THE
"CONVENTIONAL STANDARDS OF RATE-MAKING" (FPC V. HOPE NATURAL GAS CO.,
SUPRA, AT 616) AND PROVIDING IN SECS. 4(A) AND 5(A) THAT ALL RATES OF
"ANY" NATURAL GAS COMPANY BE "JUST AND REASONABLE."  BEYOND THE GROUP
IS THE SINGLE PRODUCER; BEYOND THE COMMUNITY OF PRODUCERS IS THE
INDIVIDUAL.  THE ULTIMATE THRUST OF THE ACT REACHES THE INDIVIDUAL
PRODUCER; AND UNLESS WE KNOW WHAT THE GROUP RATE IN FINAL ANALYSIS DOES
TO IT OR DISABLES IT FROM DOING WE CANNOT PERFORM OUR DUTY OF JUDICIAL
REVIEW. 

 II. 

IF WE MOVE TO THE REGULATION OF THE GROUP AS SUCH AND CONSIDER THE
IMPACT OF THESE RATE ORDERS ON IT, WE ARE LIKEWISE NOT ABLE ON THE
PRESENT RECORD TO PERFORM OUR FUNCTION OF JUDICIAL REVIEW. 

IT IS IMPOSSIBLE TO SAY WHETHER THE PROPER REVENUE REQUIREMENTS OF
THE GROUP CAN BE SATISFIED UNDER THIS RATE ORDER.  FOR THE COSTS
REPRESENT AVERAGES; AND THERE IS NO WAY FOR US TO FIND FROM THE RECORD
WHETHER THESE AVERAGES ARE TYPICAL AND WHAT THE IMPACT OF THE RATES ON
THE GROUP WILL BE.

THE ERROR IS COMPUNDED WHEN THE COSTS USED ARE THE PURPORTED COSTS
OF GAS-WELL GAS AND DO NOT INCLUDE THE COSTS OF CASINGHEAD GAS,
RESIDURE GAS DERIVED THEREFROM, AND GAS-WELL GAS FROM COMBINATION
LEASES.  THE COMMISSION CONCLUDED THAT THE COSTS OF CASINGHEAD GAS AND
RESIDUE GAS PRODUCED THEREFROM DID NOT EXCEED THE COSTS FOR GAS-WELL
GAS.  YET AT THE SAME TIME IT REJECTED PROFFERED EVIDENCE OF HIGHER
COSTS OF PROCESSING GAS TO REMOVE LIQUID HYDROCARBONS.  COMMISSION
EXPERTISE SHOULD NOT BE ALLOWED TO MAKE ITS OWN "FACTS" TO JUSTIFY THE
DESIRED RESULT. 

BEYOND THAT ARE THE QUALITY ADJUSTMENTS.  UPWARD PRICE ADJUSTMENTS
ARE PERMITTED FOR BTU CONTENT ABOVE 1,050 PER CUBIC FOOD AND DOWNWARD
ADJUSTMENTS FOR BTU CONTENT BELOW 1,000.  THE COMMISSION WAS CONCERNED
WITH THE VALUE OF THE "ENERGY CONTENT OF THE GAS, WHICH IN REALITY IS
WHAT THE CONSUMER IS PURCHASING."  34 F.P.C.,AT 223. 

WITH THAT STANDARD IN MIND IT ALLOWED PRICE REDUCTIONS 

(1) WHERE THE GAS CONTAINS MORE THAN 10 GRAINS OF HYDROGEN SULPHIDE
OR 200 GRAINS OF TOTAL SULPHUR PER MCF; 

(2) WHERE IT CONTAINS MORE THAN .009 POUND PER MCF OF WATER; 

(3) WHERE IT CONTAINS MORE THAN 3% BY VOLUME OF CARBOND DIOXIDE; 

(4) WHERE THE GAS PRESSURE IS LESS THAN 500 POUNDS PER SQUARE INCH. 

WHEN ANY OF THESE STANDARDS ARE NOT MET, THE APPLIABLE CEILING PRICE
IS ADJUSTED DOWNWARD BY THE NET COST OF PROCESSING THE GAS TO BRING IT
UP TO STANDARD. 

UNDER THE COMMISSION'S STANDARDS ABOUT 90% OF THE FLOWING GAS MOVING
INTERSTATE FROM THE PERMIAN BASIN IS NOT OF THE PIPELINE QUALITY THAT
THE COMMISSION HAS PRESCRIBED.  375 F.2D, AT 30.  WHAT THE COSTS WILL
BE TO CONVER THE GAS TO THESE NEW STANDARDS IS NOT FOUND IN THIS
RECORD.  PERHAPS THIS DEFICIENCY IS DUE TO THE FACT THAT THE
COMMISSION, ALMOST AS AN AFTERTHOUGHT AND NOT WITH CLEAR, ADVANCE
NOTICE, DECIDED TO DEAL WITH DETAILED QUALITY STANDARDS.  BUT WITHOUT
KNOWING THESE COSTS THROUGH COMPETENT EVIDENCE, NEITHER WE NOR THE
COMMISSION HAS ANY WAY EVEN TO GUESS AT WHETHER THE RATES WILL SATISFY
THE CRITERIA OF HOPE. 

        III. 

THE COURT APPROVES THE COMMISSION'S TREATMENT OF THE QUALITY
ADJUSTMENTS AS A RISK OF PRODUCTION.  BUT WHETHER THEY BE LABELED A
RISK OF PRODUCTION OR A COST WOULD SEEM TO BE IRRELEVANT.  THAT IS A
MATTER OF SEMANTICS AS FAR AS THE STANDARDS OF HOPE ARE CONCERNED.  FOR
THE QUESTION IS WHETHER WE CAN REASONABLY DETERMINE THE END RESULT FROM
THE COMPUTATIONS OF THE COMMISSION, INCLUDING BOTH RISK AND COST
FACTORS. 

ANY UNKNOWN COST IS A RISK.  BUT THE COMMISSION SHOULD NOT BE
PERMITTED TO EXCUSE ITS FAILURE TO SOLICIT OR PROFFER APPROPRIATE
EVIDENCE CONCERNING THE COST OF CONVERTING GAS INTO PIPELINE QUALITY BY
LABELING THAT COST A "RISK."  THE COURT OF APPEALS RECOGNIZED THIS
POINT.  SEE 375 F.2D, AT 31-32, 35.  COMMISSIONER O'CONNOR NOTED IN HIS
OPINION CONCURRING IN THE DENIAL OF REHEARING THAT:  "TO BURY THE
QUALITY IMPACT IN OUR RATE OF RETURN DETERMINATION IS TO OVERLOOK THE
BASIS FOR THE 12 PER CENT ALLOWANCE:  COMPARABLE RETURN ON EQUITY OF 10
12 PER CENT BY THE FAR LESS RISKY OPERATIONS OF TRANSMISSION
COMPANIES."  34 F.P.C.,AT 1081.  AND, AS ONE COMMENTATOR RECENTLY
OBSERVED: 

  "THE COMMISSION STATED THAT THE RATE OF RETURN ALSO REFLECTED

  THE RISK OF FINDING GAS OF LESS THAN PIPELINE QUALITY-- A CLEVER

  WAY OF AVOIDING THE QUALITY DISCOUNT PROBLEM.  SINCE THERE WAS NO

  EVIDENCE IN THE RECORD AS TO WHAT THOSE DISCOUNTS WOULD BE, ONE

  CAN ONLY SAY THAT 'RISKS' WERE INVOLVED.  IT IS A NOVEL DOCTRINE,

  INDEED, THAT THE RATE OF RETURN SHOULD BE ADJUSTED TO REFLECT THE

  RISK THAT THE REGULATORY COST COMPUTATIONS ARE INCORRECT."  /3/ 

THE COURT CONCEDES THAT THE LACK OF SPECIFIC FINDINGS CONCERNING THE
EFFECT OF THE QUALITY ADJUSTMENTS UPON THE RATE OF RETURN WAS "AN
UNFORTUNATE OMISSION."  ANTE, AT 812.  BUT IT PROCEEDS TO SCRATCH ABOUT
FOR EVIDENCE TO SUPPORT THE COMMISSION.  WITH ALL RESPECT, THERE IS NO
COMPETENT EVIDENCE IN THE RECORD TO PERMIT A MEANINGFUL DETERMINATION
OF THE IMPACT OF THE QUALITY DEDUCTIONS.  /4/  THE COURT OF APPEALS WAS
CLEARLY CORRECT IN REMANDING TO THE COMMISSION FOR PROPER FINDINGS ON
THIS POINT. 

BEHIND THE VENEER OF THE COURT'S OPINION MAY BE AN UNSTATED PREMISE
THAT THE COMPLEXITY OF THE TASK OF REGULATING THE WELLHEAD PRICE OF GAS
SOLD BY PRODUCERS IS BOTH SO GREAT AND SO NOVEL THAT THE COMMISSION
MUST BE GIVEN GREAT LEEWAY.  BUT THE PERMISSIBLE BOUNDS, SO FAR AS
JUDICIAL REVIEW IS CONCERNED, ARE PASSED WHEN GUESSWORK IS SUBSTITUTED
FOR REASONED FINDINGS, WHEN THE COMMISSION CAN AVOID FINDING "COSTS" BY
THE CONVENIENCE OF CALLING THEM "RISKS," WHEN RATES OF RETURN ARE
COMPUTED FOR THOSE MYTHICAL PRODUCERS WHO HAPPEN TO MEET THE "AVERAGE"
SPECIFICATIONS. 

IF THE TASK OF REGULATING PRODUCER SALES WITHIN THE FRAMEWORK OF THE
NATURAL GAS ACT IS AS DIFFICULT AS THE PRESENT CASES ILLUSTRATE,
PERHAPS THE PROBLEM SHOULD BE RETURNED TO CONGRESS.  BUT CERTAINLY WE
DO LITTLE TODAY TO ADVANCE THE CAUSE OF RESPONSIBLE ADMINISTRATIVE
IRRESPONSIBILITY BY MAKING AN AGENCY'S FIAT AD ADEQUATE SUBSTITUTE FOR
SUPPORTED FINDINGS. 

        IV. 

NEW MEXICO AND TEXAS, IN WHICH THE PERMIAN BASIN IS LOCATED, HAVE
COMPREHENSIVE OIL AND GAS CONSERVATION CODES.  /5/  A SUBSTANTIAL
PORTION OF THEIR TAXES ON THE PRODUCTION OF NATURAL GAS WITHIN THEIR
BOUNDARIES GOES INTO SCHOOL FUNDS.  THEY SAY THAT THE "PUBLIC INTEREST"
ENTRUSTED TO THE COMMISSION BY 15 U.S.C. 717(A) INCLUDES THE INTEREST
OF THE STATES WHERE THE GAS IS FOUND.  THEY CLAIM THAT PRICING CAN BE
DISASTROUS TO THE PRODUCING STATES AND URGE THE NEED FOR THREEFOLD
FINDINGS BY THE COMMISSION TO ENSURE AN ADEQUATE SUPPLY OF NATURAL GAS
FOR FUTURE USE: 

     "FIRST, THE COMMISSION MUST DETERMINE THE QUANTITY OF GAS

  NEEDED TO CONSTITUTE AN ADEQUATE FUTURE SUPPLY.  SECONDLY, IT

  MUST MAKE A CONCLUSION AS TO THE LEVEL OF EXPLORATION AND

  DEVELOPMENT WHICH WILL PRODUCE THE NEEDED GAS SUPPLY.  FINALLY,

  IT MUST PRESCRIBE A RATE WHICH WILL ELICIT THAT LEVEL OF

  EXPLORATION AND DEVELOPMENT." 

THEY ARGUE THAT WHERE COMMISSION RATES ARE LOWER THAN EXISTING
CONTRACT RATES, CONTINUED OPERATION IS UNECONOMICAL IN MANY SO-CALLED
"STRIPPER FIELD": 

     "ALTHOUGH DAILY PER WELL PRODUCTION FROM THESE FIELDS IS

  RELATIVELY LOW, THEIR COMBINED REMAINING RECOVERABLE RESERVES

NEVERTHELESS CONSTITUTE A CONSIDERABLE PERCENTAGE OF THE TOTAL

  RESERVES FOR THE AREA WHICH WILL BE FOREEVER LOST IF IT BECOMES

  NECESSARY TO PLUG AND ABANDON THESE FIELDS FOR ECONOMIC

  REASONS." 

THE COURT OF APPEALS DID NOT ENTERTAIN THESE OBJECTIONS (375 F.2D,
AT 18) BECAUSE IT READ THE HOPE CASE AS FORECLOSING THEM. 

HOPE, HOWEVER, DID NOT INVOLVE REGULATION OF PRODUCERS OF NATURAL
GAS, ONLY INTERSTATE PIPELINES.  AT THAT TIME, PHILLIPS PETROLEUM CO.
V. WISCONSIN, 347 U.S. 672, GIVING THE COMMISSION AUTHORITY OVER THESE
PRODUCERS, HAD NOT BEEN DECIDED.  IN HOPE WE ASSUMED THAT THE ACT MEANT
WHAT IT SAID IN SEC. 1(B) WHEN IT DID NOT EXTEND FEDERAL CONTROL TO THE
"PRODUCTION OR GATHERING OF NATURAL GAS."  WE WERE NOT THEN REVIEWING A
FEDERAL ORDER FIXING WELLHEAD GAS PRICES FOR PRODUCERS.  WELLHEAD GAS
WAS NOT EVEN INVOLVED IN THE HOPE CASE.  WE WERE CONCERNED THERE WITH
ABUSES AND OVERREACHING BY PIPELINE COMPANIES.  WE SAID: 

     "IF THE COMMISSION IS TO BE COMPELLED TO LET THE STOCKHOLDERS

  OF NATURAL GAS COMPANIES HAVE A FEAST SO THAT THE PRODUCING

  STATES MAY RECEIVE CRUMBS FROM THAT TABLE, THE PRESENT ACT MUST

  BE REDESIGNED.  SUCH A PROJECT RAISES QUESTIONS OF POLICY WHICH

GO BEYOND OUR PROVINCE."  320 U.S., AT 614. 

NOW THAT PHILLIPS HAS PUT THE PRICES OF PRODUCERS UNDER FEDERAL
CONTROL, THE INTERESTS OF THE PRODUCING STATES MUST BE CONSIDERED,
APPRAISED, AND WEIGHED AS AN IMPORTANT INGREDIENT OF THE "PUBLIC
INTEREST."  REGULATION OF WELLHEAD PRICES BY THE COMMISSION DIRECTY
INFLUENCES THE LEVEL AND FEASIBILITY OF PRODUCTION, AND CAN
SIGNIFICANTLY AFFECT THE PRODUCING STATES' REGULATION OF PRODUCTION. 
SEE PHILLIPS PETROLEUM CO. V. WISCONSIN, SUPRA, AT 689-690 (DISSENTING
OPINION).  /6/ 

AS THE COURT TODAY SAYS IN ANOTHER CONTEXT, PRICE IN FUNCTIONAL
TERMS CAN BE "A TOOL TO ENCOURAGE" THE PRODUCTION OF GAS.  ANTE, AT
760.  THE EFFECT OF PRICE ON THE REGULATORY RESPONSIBILITIES OF THE
SEVERAL STATES MUST THEREFORE BE WEIGHED, UNLESS CONTRARY TO THE
MANDATE OF THE ACT REGULATION OF PRODUCTION IS TO PASS INTO FEDERAL
HANDS. 

WHAT THE MERITS MAY BE ON THIS ISSUE WE DO NOT KNOW.  THE MATTER IS
COMPLICATED.  FOR EXAMPLE, IT SEEMS THAT THE REVENUES OF THE PROCESSING
PLANTS ARE DERIVED PRIMARILY (ABOUT 80%) FROM THE LIQUIDS WHICH THEY
EXTRACT FROM THE CASINGHEAD GAS, RATHER THAN FROM THE SALE OF THE
RESIDUE GAS.  WE DO NOT KNOW HOW TO APPRAISE THE CHANCES THAT THIS GAS
WOULD BE FLARED RATHER THAN PROCESSED IF THE PRICE WERE TOO LOW.  FOR
EXAMPLE, IT MIGHT BE THAT THE PROCESSING PLANTS WOULD CONTINUE TO
PURCHASE AND PROCESS CASINGHEAD GAS AS LONG AS THE REVENUES FROM THE
LIQUIDS EXTRACTED PLUS THOSE FROM THE RESIDUE GAS PROCESSED EXCEEDED
THE COST OF GATHERING, PROCESSING, AND MARKETING THE GAS.  AS LONG AS
THERE IS A MARKET FOR THE RESIDUE GAS REMAINING AFTER EXTRACTION OF THE
LIQUIDS, IT MIGHT BE THAT THE PROCESSOR WOULD SELL IT AT ALMOST ANY
PRICE RATHER THAN FLARE IT, IN ORDER TO RECOVER AT LEAST PART OF HIS
COSTS.  THIS ASSUMES, OF COURSE, THAT THE PROCESSOR HAS ALREADY MADE
THE INVESTMENT IN EQUIPMENT NECESSARY TO PURIFY THE RESIDUE GAS TO MAKE
IT SALABLE, AND THAT THE OPERATING COSTS OF THIS PROCESS ARE NOT
PROHIBITIVE.  CONCEIVABLY, THE PRICE OF THE RESIDUE GAS COULD INFLUENCE
THE PROCESSING PLANTS IN DECIDING WHETHER TO MAINTAIN OR INSTALL THE
EQUIPMENT AND PROCEDURES NECESSARY TO MAKE SALABLE QUALITY RESIDUE GAS
AS THE LIQUIDS ARE BEING EXTRACTED.  WE DO NOT KNOW HOW MANY PROCESSORS
DO NOT NOW HAVE THAT NECESSARY EQUIPMENT OR THE COST OF OPERATING AND
MAINTAINING THAT EQUIPMENT. 

IF THE PROCESSOR IS WILLING TO GATHER AND PROCESS THE GAS BECAUSE OF
THE VALUE OF THE LIQUIDS EXTRACTED, IT MIGHT BE THAT A PRODUCER WOULD
BE WILLING TO SELL ITS CASINGHEAD GAS RATHER THAN FLARE IT, IN ORDER TO
OBTAIN SOME PAYMENT FOR THE GAS.  ON THE OTHER HAND, THE PRICE OF THE
CASINGHEAD GAS MIGHT WELL BE CRITICAL FOR MARGINAL PRODUCERS, WHOSE
REVENUES FROM THE SALE OF CASINGHEAD GAS JUSTIFY KEEPING THEIR OIL
WELLS IN PRODUCTION.  BUT WE HAVE NO EVIDENCE CONCERNING HOW MANY OIL
PRODUCERS IN THE PERMIAN BASIN AREA COULD BE TERMED "MARGINAL." 

IT MAY BE THAT THE POSTURE OF HOPE WAS THE REASON WHY THIS PHASE OF
THE CASE WAS NOT DEVELOPED.  WHATEVER THE REASON, IT MUST BE DEVELOPED
IF THE INTEREST OF THE PRODUCING STATES IS NOT BY JUDICIAL FIAT TO BE
SUBJECTED ENTIRELY TO COMPLETE FEDERAL SUPREMACY, CONTRARY TO THE
PROMISE OF THE NATURAL GAS ACT. 

/1/  IN ITS EFFORT TO DETERMINE COSTS OF PRODUCTION, THE COMMISSION
SENT OUT QUESTIONNAIRES (APPENDICES A, B, AND C), TO 458 PRODUCERS IN
THE PERMIAN BASIN AREA, 361 OF WHICH WERE NAMED RESPONDENTS IN THESE
PROCEEDINGS.  APPENDICES B AND C INQUIRED AS TO PRODUCTION COSTS;
APPENDIX A COVERED DRILLING COSTS.  APPENDIX B WAS A COMPREHENSIVE
QUESTIONNAIRE DESIGNED FOR MAJOR PRODUCERS, WHILE APPENDIX C WAS A
SIMPLIFIED FORM FOR SMALL PRODUCERS (THOSE WITH UNDER 10,000,000 MCF IN
NATIONWIDE JURISDICTIONAL SALES IN 1960).  SMALL PRODUCERS, HOWEVER,
COULD ANSWER EITHER APPENDIX B OR C. 

THE COMMISSION RECEIVED COMPLETE RESPONSES ON APPENDIX B FROM 67
PRODUCERS, OF WHICH 25 WERE SMALL PRODUCERS.  RESPONSES TO APPENDIX C
WERE FILED BY 105 SMALL PRODUCERS.  (SOME OF THE RESPONSES REPRESENTED
COMPOSITE DATA FOR MORE THAN ONE COMPANY.)  THE COMMISSION EXCLUDED THE
APPENDIX C REPLIES FROM CONSIDERATION.  34 F.P.C. 159, 213-214.     THE
COMMISSION'S STAFF USED THESE RESPONSES TO DEVELOP A COMPOSITE COST OF
SERVICE STUDY.  THE STAFF ARRANGED THE APPENDIX B REPLIES ON VARIOUS
CHARTS, ARRAYING THE DATA FROM HIGH TO LOW IN RESPECT TO VARIOUS
CATEGORIES (E.G., TOTAL UNIT COSTS AND ALLOWANCES, CASH EXPENSE UNIT
COSTS).  THEN, WEIGHTED COST AVERAGES WERE COMPUTED-- I.E., THE REPLIES
ON APPENDIX B WERE GIVEN A WEIGHT PROPORTIONAL TO THE VOLUME MCF
COVERED BY THE RESPONSES. 

IN ESTABLISHING THE RATE FOR NEW GAS-WELL GAS, THE COMMISSION
ELECTED TO PROCEED BY DETERMINING COSTS ON A NATIONAL, RATHER THAN AN
AREA, BASIS.  34 F.P.C.,AT 191.  IT USED THE PERMIAN QUESTIONNAIRE
RESPONSES, HOWEVER, AS "A VITAL SOURCE OF INFORMATION," IBID.,
EMPLOYING THEM IN DETERMINING VARIOUS COMPONENTS OF THE FINAL NATIONAL
AVERAGE COST.  SEE ID., AT 191-200.  THE COMMISSION ALSO TURNED TO
VARIOUS "WELL-RECOGNIZED AND AUTHORITATIVE INDUSTRY DATA SOURCES
(WHICH) WERE UTILIZED BY VARIOUS WITNESSES IN THE PROCEEDING."  ID., AT
191.  THESE INCLUDED SUCH SOURCES AS THE UNITED STATES CENSUS BUREAU'S
CENSUS OF MINERAL INDUSTRIES FOR 1958 (WHEREVER THIS SOURCE WAS USED,
THE FIGURES WERE TRENDED TO 1960 ON THE BASIS OF THE PERMIAN
QUESTIONNAIRE DATA), THE 1961 CHASE MANHATTAN BANK'S ANNUAL ANALYSIS OF
THE PETROLEUM INDUSTRY, AND THE 1958 JOINT ASSOCIATION SURVEY (A SURVEY
MADE BY THREE INDUSTRY TRADE GROUPS BASED ON QUESTIONNAIRES MAILED TO
ALL MEMBER COMPANIES). 

VARIOUS ADJUSTMENTS WERE MADE BECAUSE OF FACTORS SUCH AS ATYPICAL
YEARS OR THE PERMIAN QUESTIONNAIRE DATA BEING DISPROPORTIONATE TO THE
NATIONAL FIGURES.  SEE 34 F.P.C.,AT 194-196. 

THE COMMISSION'S RATE FOR FLOWING GAS WAS BASED PRIMARILY ON THE
QUESTIONNAIRE DATA WHICH HAD BEEN COMPILED BY THE STAFF INTO A
COMPOSITE COST OF SERVICE STUDY.  THE COMMISSION IN THIS INSTANCE BASED
THE CEILING PRICE ON PERMIAN BASIN AREA COSTS, ALTHOUGH IT USED
NATIONWIDE DATA IN DETERMINING EXPLORATION AND DEVELOPMENT COSTS.  SEE
34 F.P.C.,AT 212-218.  AND, ALTHOUGH THE TERM "FLOWING GAS" WAS DEFINED
TO INCLUDE CASINGHEAD GAS, RESIDUE GAS DERIVED THEREFROM, AND OLD GAS
WELL GAS, THE COMMISSION USED ONLY THE COSTS OF THE OLD GAS-WELL GAS IN
DETERMINING THE AREA RATE.  ID., AT 208-212. 

/2/  NOR DID THE COMMISSION DISCUSS THE DISTRIBUTION OF THE DATA
WITHIN THE GROUPING BEING CONSIDERED-- THAT IS, MATTERS OF THE
CONCENTRATION, SYMMETRY, AND UNIFORMITY OF THE DATA. 

THE COMMISSION ASSERTS IN THIS COURT THAT "WHILE PRODUCER COSTS VARY
WIDELY FROM YEAR TO YEAR ON AN INDIVIDUAL-COMPANY BASIS, IN THE LONG
RUN THE COSTS OF MOST PRODUCERS TEND TO APPROXIMATE THE INDUSTRY
AVERAGE."  IN SUPPORT OF THIS ASSERTION, IT CITES RECORD TESTIMONY AND
REFERS TO THE EXISTENCE OF FAIRLY STABLE INDUSTRY AVERAGES FOR DRILLING
COSTS OF SUCCESSFUL WELLS AS COMPARED WITH ERRATIC FIGURES FOR
INDIVIDUAL COMPANIES.  APART FROM THE FACT THAT NOT ALL OF THE
TESTIMONY CITED STANDS FOR THE PROPOSITION STATED BY THE COMMISSION,
BUT INDICATES AT MOST ONLY THAT THERE IS LESS INSTABILITY IN INDIVIDUAL
PRODUCERS; COSTS OVER TIME RATHER THAN THAT THEY TEND TO AVERAGE OUT,
THERE WAS CONFLICTING TESTIMONY ON THE POINT OF REPRESENTATIVENESS
OFFERED BY A WITNESS FOR THE SUN OIL COMPANY, WHO SHOWED THAT CERTAIN
AVERAGES WERE NOT REPRESENTATIVE OF THE BASIC DATA BECAUSE THE
DISTRIBUTION OF THE DATA WAS SO WIDELY SPREAD AND SKEWED FROM THE
MEAN.  THE FACT THAT THERE WERE NO COMPREHENSIVE COST DATA SUITABLE FOR
SUPPLYING ALL THE NECESSARY ELEMENTS OF A COST STUDY (SEE 34 F.P.C.,AT
191) DOES NOT EXCUSE THE COMMISSION FROM FINDING WHETHER THE DATA IT
CHOSE TO USE WERE TYPICAL AND REPRESENTATIVE.  IN FACT, THE NECESSITY
OF MAKING SUCH A FINDING IS ACCENTUATED, BECAUSE OF THE NUMBER OF
DIFFERENT SOURCES ENTERING INTO THE COMPUTATION OF VIRTUALLY ALL OF THE
INDIVIDUAL COST COMPONENTS.  SEE 34 F.P.C.,AT 191-207, 212-218. 

THE COMMISSION STATED THAT IT WOULD USE NATIONAL RATHER THAN AREA
DATA IN ARRIVING AT A COST FOR NEW GAS-WELL GAS, NOTING: "IT MAY BE
THAT IN SOME AREAS PRODUCTION COSTS MAY VARY SUFFICIENTLY FROM THE
NATIONAL AVERAGE TO WARRANT A DIFFERENT TREATMENT BUT ON THE RECORD IN
THIS CASE WE AGREE THAT COST OF NEW GAS-WELL SHOULD BE DETERMINED ON
THE BASIS OF NATIONWIDE DATA."  34 F.P.C.,AT 191.  SINCE THE COMMISSION
WAS DISCUSSING THE USE OF AREA VERSUS NATIONAL COSTS, THAT STATEMENT AT
MOST SUGGESTS ONLY THAT THE PERMIAN BASIN COMPOSITE COSTS DID NOT VARY
SUFFICIENTLY FROM THE NATIONAL AVERAGE COSTS TO WARRANT NOT USING THE
LATTER, RATHER THAN THAT THE COMMISSION WAS COMPARING THE NATIONAL
AVERAGE WITH INDIVIDUAL PRODUCER COSTS IN THE PERMIAN BASIN. 

PERHPAS FOR A GROUP AS LARGE AND DIVERSIFIED AS THAT INVOLVED IN
THIS CASE, TYPICAL AND REPRESENTATIVE AVERAGES CANNOT BE COMPUTED. 
HUNT OIL COMPANY PRESSES THIS POINT STRONGLY, CONTENDING THAT WIDE
VARIATIONS IN UNIT COSTS ARE AN INHERENT CHARACTERISTIC OF GAS AND THAT
A UNIFORM CEILING RATE FIXED AT THE AVERAGE COMPOSITE COST LEVEL IS
UNLAWFUL PER SE BECAUSE OF THE WIDE DISPARITY IN COSTS AMONG DIFFERENT
CATEGORIES OF GAS AS WELL AS AMONG DIFFERENT PRODUCERS.  THE COMMISSION
ITSELF NOTED THIS FACT OF WIDE VARIATION IN INDIVIDUAL COSTS AS PART OF
ITS JUSTIFICATION FOR BASING COSTS ON OVERALL PRODUCER EXPERIENCE (SEE
34 F.P.C.,AT 179); BUT, AS POINTED OUT, IT FAILED TO GO FORWARD AND
DETERMINE WHETHER THE AVERAGES USED TO CONSTRUCT THIS OVERALL PRODUCER
EXPERIENCE WERE TYPICAL AND REPRESENTATIVE.  IF THEY WERE NOT, THEN
PERHAPS THE COMMISSION COULD HAVE SUBDIVIDED THE GROUP UNTIL IT ARRIVED
AT GROUPINGS WHOSE MEMBERS POSSESSED ESSENTIALLY SIMILAR
CHARACTERISTICS.  CF. UNITED STATES V. BORDEN CO., 370 U.S. 460, 469. 
THIS WOULD NOT MEAN THAT THE COMMISSION WOULD IN EFFECT BE RETURNING TO
AN INDIVIDUAL PRODUCER REGULATORY METHOD; RATHER, THE COMMISSION COULD
STOP THE SUBDIVISION AT THAT POINT WHERE GROUP AVERAGES BECAME TYPICAL
AND REPRESENTATIVE.  BUT, AS THIS CASE NOW STANDS, THE COMMISSION HAS
NOT MADE THE NECESSARY FINDINGS; AND, OF COURSE, THIS COURT, LACKING
THE REQUIRED EXPERTISE, CANNOT UNDERTAKE TO SUPPLY THOSE FINDINGS FOR
THE COMMISSION, NOR IS IT OUR FUNCTION TO DO SO.  SEE, E.G., UNITED
STATES V. ABILENE & S.R. CO., 265 U.S. 274. 

/3/  KITCH, THE PERMIAN BASIN AREA RATE CASES AND THE REGULATORY
DETERMINATION OF PRICE, 116 U.PA.L.REV.  191, 201 (1967) (FOOTNOTE
OMITTED). 

/4/  COUNSEL FOR THE COMMISSION OBSERVE IN THEIR BRIEF TO THIS COURT
THAT "(NO MORE PRECISE DETERMINATION WAS POSSIBLE IN THE STATE OF THE
RECORD" THAN THE 0.7[ TO 1.5[ RANGE FOR THE AVERAGE ADJUSTMENT FOR
QUALITY PREDICTED BY THE COMMISSION IN ITS OPINION DENYING REHEARING. 
SEE 34 F.P.C.,AT 1073.  COUNSEL ALSO CITE TO CERTAIN RECORD TESTIMONY
AND EXHIBITS TO SUPPORT THE COMMISSION'S DETERMINATION OF THIS 0.7[ TO
1.5[ RANGE. 

IT SHOULD BE NOTED FIRST THAT THE 07[ TO 1.5[ PREDICTION IS AN
AVERAGE.  IT HAVE ALREADY DICUSSED THE MISLEADING NATURE OF AVERAGES
NOT FOUND TO BE TYPICAL AND REPRESENTATIVE, AND THOSE OBSERVATIONS ARE
EQUALLY PERTINENT HERE.  MOREOVER, WE HAVE NO IDEA WHETHER THE
COMMISSION RELIED IN MAKING ITS PREDICTION ON ANY OF THE SOURCES CITED
BY COMMISSION COUNSEL TO THIS COURT. 

IN COMPUTING THE 0.7[ TO 1.5[ RANGE IN ITS OPINION DENYING
REHEARING, THE COMMISSION APPARENTLY RELIED ON COMMISSIONER O'CONNOR'S
STATEMENT IN HIS CONCURRING OPINION TO THE INITIAL DECISION THAT THE
AVERAGE ADJUSTMENT WOULD BE BETWEEN 1.0[ TO 1.7[, AND THEN ADJUSTED
THOSE FIGURES TO ALLOW FOR CERTAIN CHANGES MADE WITH RESPECT TO QUALITY
STANDARDS IN THE DECISION DENYING REHEARING.  BUT AT THE TIME OF THE
COMMISSION'S INITIAL DECISION, COMMISSIONER O'CONNOR DID NOT AND COULD
NOT KNOW THE COSTS INCURRED BY THE PIPELINES IN BRINGING GAS UP TO
PIPELINE QUALITY, FOR THE PIPLINES' PROCESSING COSTS WERE NOT IN THE
RECORD.  COMMISSIONER O'CONNOR BASED HIS ESTIMATE IN LARGE PART ON
CONTRACT EXHIBITS, AS IS EVIDENT FROM HIS OPINION; AND HE NOTED THAT A
PRECISE ADJUSTMENT FOR QUALITY COULD NOT BE ASCERTAINED FROM THOSE
EXHIBITS.  SEE 34 F.P.C.,AT 266.  HIS VIEW OF THE EVIDENCE ON THIS
POINT WAS CLEARLY STATED IN HIS OPINION CONCURRING IN THE DENIAL OF
REHEARING, IN WHICH HE OBSERVED THAT THE RECORD "DOES NOT PERMIT A
MEANINGFUL DETERMINATION OF THE IMPACT."  34 F.P.C.,AT 1081. 

COMMISSION COUNSEL ALSO NOTE THE EXAMINER'S FINDING THAT 1[
REPRESENTED A REASONABLE ESTIMATE FOR BRINING NEW GAS-WELL GAS UP TO
PIPELINE QUALITY AND 1[ TO 1.5[ FOR OLD GAS-WELL GAS.  BUT, AS COUNSEL
ADMIT, THIS FINDING WAS NOT MADE IN CONJUNCTION WITH DEFINING PIPELINE
QUALITY STANDARDS ON WHICH THE COSTS OF CONFORMING THE QUALITY OF THE
GAS WOULD BE BASED.  IN FACT, THE EXAMINER CONCLUDED THAT:  "THIS
RECORD DOES NOT PERMIT THE DETERMINATION OF A COMPLETE SET OF QUALITY
AND VALUE DIFFERENTIALS."  34 F.P.C.,AT 370. 

THE PERCENTAGE CALCULATIONS TRANSLATING THE 0.7[ TO 1.5[ RANGE INTO
TERMS OF RATE OF RETURN, WHICH RELIED UPON BY THE COURT, WERE PRESENTED
BY COMMISSION COUNSEL TO THIS COURT AND DO NOT APPEAR IN THE
COMMISSION'S OPINION OR IN THE RECORD. 

/5/  SEE N.M. STAT. ANN., C. 65 (1953); TEX. STAT. ANN., ART. 6004
6066D (1962).  IN 1935, TEXAS, NEW MEXICO, KANSAS, OKLAHOMA, ILLINOIS,
AND COLORADO AGREED UPON AN INTERSTATE COMPACT FOR THE CONSERVATION OF
OIL AND GAS.  CONGRESS SUBSEQUENTLY GAVE ITS CONSENT TO THE COMPACT ON
AUGUST 27, 1935, FOR A PERIOD OF TWO YEARS.  PUB. RES. NO. 64, 49 STAT.
939.  THE COMPACT HAS BEEN EXTENDED BY THE COMPACTING STATES, WITH THE
CONSENT OF CONGRESS, FOR SUCCESSIVE PERIODS WITHOUT INTERRUPTION, THE
LATEST EXTENSION BEING FROM SEPTEMBER 1, 1967, TO SEPTEMBER 1, 1969. 
PUB. L. NO. 90-185, 81 STAT. 560. 

/6/  SEE ALSO H.R. DOC. NO. 342, 84TH CONG., 2D SESS., 2 (1956). 

RICHARD A. SOLOMON ARGUED THE CAUSE FOR THE FEDERAL POWER
COMMISSION.  WITH HIM ON THE BRIEF WERE SOLICITOR GENERAL MARSHALL,
RALPH S. SPRITZER, RICHARD A. POSNER, PETER H. SCHIFF, LEO E. FORQUER,
DAVID J. BARDIN AND ALAN J. ROTH. 

J. CALVIN SIMPSON ARGUED THE CAUSE FOR THE PUBLIC UTILITIES
COMMISSION OF CALIFORNIA; MALCOLM H. FURBUSH ARGUED THE CAUSE FOR THE
PACIFIC GAS & ELECTRIC CO.; JOHN ORMASA ARGUED THE CAUSE FOR THE
PACIFIC LIGHTING GAS SUPPLY CO. ET AL., AND C. HAYDEN AMES ARGUED THE
CAUSE FOR THE SAN DIEGO GAS & ELECTRIC CO., ALL IN SUPPORT OF THE ORDER
OF THE FEDERAL POWER COMMISSION.  WITH MR. SIMPSON ON THE BRIEF FOR THE
PUBLIC UTILITIES COMMISSION OF CALIFORNIA WAS MARY MORAN PAJALICH. 
WITH MESSRS.  FURBUSH, ORMASA AND AMES ON THE BRIEF FOR PACIFIC GAS &
ELECTRIC CO. ET AL. WAS FREDERICK T. SEARLS.  ROBERT ARNEBERGH FILED A
BRIEF FOR THE CITY OF LOS ANGELES, AND EDWARD T. BUTLER AND THOMAS M.
O'CONNOR FILED A BRIEF FOR THE CITY OF SAN DIEGO AND THE CITY AND
COUNTY OF SAN FRANCISCO, IN SUPPORT OF THE ORDER OF THE FEDERAL POWER
COMMISSION. 

BRUCE R. MERRIL ARGUED THE CAUSE FOR THE CONTINENTAL OIL CO.;
CRAWFORD C. MARTIN, ATTORNEY GENERAL, ARGUED THE CAUSE FOR THE STATE OF
TEXAS; BOSTON E. WITT, ATTORNEY GENERAL, ARUGED THE CAUSE FOR THE STATE
OF NEW MEXICO; HERBERT W. VARNER ARGUED THE CAUSE FOR THE SUPERIOR OIL
CO.; ROBERT W. HENDERSON ARGUED THE CAUSE FOR THE HUNT OIL CO. ET AL.;
J. EVANS ATTWELL ARGUED THE CAUSE FOR BASS ET AL.; JUSTIN R. WOLF
ARGUED THE CAUSE FOR THE STANDARD OIL CO. OF TEXAS; JAMES L. ARMOUR
ARGUED THE CAUSE FOR THE MOBIL OIL CORP.; LOUIS FLAX ARGUED THE CAUSE
FOR THE SUN OIL CO., AND CARROLL L. GILLIAM AND OLIVER L. STONE ARGUED
THE CAUSE FOR THE AMERADA PETROLEUM CORP. ET AL., ALL IN OPPOSITION TO
THE ORDER OF THE FEDERAL POWER COMMISSION.  WITH MR. MERRILL ON THE
BRIEF FOR THE CONTINENTAL OIL CO. ET AL. WERE THOMAS H. BURTON, CECIL
N. COOK, NEAL POWERS, JR., AND LLOYD F. THANHOUSER.  WITH MESSRS. 
MARTIN AND WITT ON THE BRIEF FOR THE STATE OF TEXAS ET AL. WERE GEORGE
M. COWDEN, FIRST ASSISTANT ATTORNEY GENERAL OF TEXAS, HOUGHTON
BROWNLEE, JR., LINWARD SHIVERS AND C. DANIEL JONES, JR., ASSISTANT
ATTORNEYS GENERAL OF TEXAS, A. J. CARUBBI, JR., AND WILLIAM J. COOLEY,
SPECIAL ASSISTANT ATTORNEY GENERAL OF NEW MEXICO.  WITH MR. VARNER ON
THE BRIEF FOR THE SUPERIOR OIL CO. WERE HOMER J. PENN AND MURRAY
CHRISTIAN.  WITH MR. HENDERSON ON THE BRIEF FOR THE HUNT OIL CO. ET AL.
WERE PAUL W. HICKS AND DONALD K. YOUNG.  WITH MR. ATTWELL ON THE BRIEF
FOR BASS ET AL. WAS W. H. DRUSHEL, JR. WITH MR. WOLF ON THE BRIEF FOR
THE STANDARD OIL CO. OF TEXAS WAS FRANCIS R. KIRKHAM.  WITH MR. ARMOUR
ON THE BRIEF FOR MOBIL OIL CORP. ET AL. WERE THOMAS P. HAMILL, ROBERT
D. HAWORTH AND WILLIAM H. TABB.  WITH MR. FLAX ON THE BRIEF FOR THE SUN
OIL CO. WERE PHILLIP D. ENDOM AND ROBERT E. MAY.  WITH MESSRS.  GILLIAM
AND STONE ON THE BRIEF FOR THE AMERADA PETROLEUM CORP. ET AL. WERE
JOSEPH W. MORRIS, EDWIN S. NAIL, EDWARD J. KREMER, JR., ROBERT E. WADE,
BERNARD A. FOSTER, JR., GRAYDON D. LUTHEY, WARREN M. SPARKS, MARTIN E.
ERCK, CLAYTON L. ORN, JOSEPH F. DIVER, H. Y. ROWE, W. W. HEARD, J. P.
HAMMOND T. C. MCCORKLE, WILLIAM H. EMERSON, KENNETH HEADY, JOHN R.
REBMAN, JEROME M. ALPER, THOMAS G. JOHNSON, CHARLES E. MCGEE, SHERMAN
S. POLAND, RICHARD F. REMMERS, HOMER E. MCEWEN, JR., WILLIAM K. TELL,
JR., WILLIAM R. SLYE AND JOHN C. SNODGRASS.  JOHN DAVENPORT FILED A
BRIEF FOR TEXAS INDEPENDENT PRODUCERS & ROYALTY OWNERS ASSOCIATION ET
AL., IN OPPOSITION TO THE ORDER OF THE FEDERAL POWER COMMISSION. 

BRIEFS OF AMICI CURIAE WERE FILED BY LOUIS J. LEFKOWITZ, ATTORNEY
GENERAL OF NEW YORK, KENT H. BROWN AND MORTON L. SIMONS FOR THE PUBLIC
SERVICE COMMISSION OF THE STATE OF NEW YORK; BY J. DAVID MANN, JR.,
JOHN E. HOLTZINGER, JR., BERTRAM D. MOLL, WILLIAM T. COLEMAN, JR.,
ROBERT W. MARIS, C. WILLIAM COOPER, EDWARD S. KIRBY, JAMES R. LACEY,
EDWIN F. RUSSELL, JR., BARBARA M. SUCHOW, JOHN W. GLENDERING, JR., JOHN
S. SCHMID AND DALE A. WRIGHT FOR THE ASSOCIATED GAS DISTRIBUTORS GROUP,
AND BY VINCENT P. MCDEVITT AND SAMUEL GRAFF MILLER FOR THE PHILADELPHIA
ELECTRIC CO.
..END :













ST. AMANT V. THOMPSON, 390 U.S. 727 


       ST. AMANT V. THOMPSON. 

        CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

        NO. 517.  ARGUED APRIL 4, 1968.-- DECIDED APRIL 29.  1968. 


PETITIONER MADE A TELEVISED POLITICAL SPEECH IN THE COURSE OF WHICH
HE READ QUESTIONS WHICH HE HAD PUT TO A UNION MEMBER, ALBIN, AND
ALBIN'S ANSWERS; THE ANSWERS FALSELY CHARGED RESPONDENT, A PUBLIC
OFFICIAL, WITH CRIMINAL CONDUCT.  RESPONDENT SUED PETITIONER FOR
DEFAMATION AND WAS AWARDED DAMAGES BY THE TRIAL JUDGE.  THE TRIAL
JUDGE, HAVING CONSIDERED NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254
(1964), DECIDED AFTER THE TRIAL, DENIED A MOTION FOR A NEW TRIAL.  AN
INTERMEDIATE APPELLATE COURT REVERSED THE TRIAL COURT'S JUDGMENT,
HAVING FOUND THAT PETITIONER HAD NOT ACTED WITH ACTUAL MALICE WITHIN
THE MEANING OF THE NEW YORK TIMES RULE, I.E., WITH KNOWLEDGE THAT
PETITIONER'S STATEMENTS WERE FALSE OR WITH RECKLESS DISREGARD OF
WHETHER THEY WERE FALSE OR NOT.  THE STATE SUPREME COURT REVERSED,
FINDING THAT THERE HAD BEEN SUFFICIENT EVIDENCE THAT PETITIONER HAD
ACTED IN "RECKLESS DISREGARD" IN THAT PETITIONER HAD NO PERSONAL
KNOWLEDGE OF RESPONDENT'S ACTIVITIES' RELIED SOLELY ON ALBIN'S
AFFIDAVIT THOUGH THERE WAS NO EVIDENCE AS TO ALBIN'S VERACITY; FAILED
TO VERIFY THE INFORMATION WITH OTHERS WHO MIGHT KNOW THE FACTS; DID NOT
CONSIDER WHETHER THE STATEMENTS WERE DEFAMATORY; AND MISTAKENLY
BELIEVED THAT HE HAD NO RESPONSIBILITY FOR THE BROADCAST BECAUSE HE WAS
MERELY QUOTING ALBIN.  HELD:  IN ORDER THAT IT CAN BE FOUND THAT A
DEFENDANT, WITHIN THE MEANING OF THE NEW YORK TIMES, ACTED IN "RECKLESS
DISREGARD" OF WHETHER A DEFAMATORY STATEMENT WHICH HE MADE ABOUT A
PUBLIC OFFICIAL IS FALSE OR NOT, THERE MUSE BE SUFFICIENT EVIDENCE TO
PERMIT THE CONCLUSION THAT THE DEFENDANT HAD SERIOUS DOUBTS AS TO THE
TRUTH OF HIS PUBLICATION.  PP. 730-733. 

(A) IN A DEFAMATION ACTION BY A PUBLIC OFFICIAL RECKLESS CONDUCT IS
NOT MEASURED BY WHETHER A REASONABLY PRUDENT MAN WOULD HAVE PUBLISHED
THE STATEMENT OR WOULD HAVE INVESTIGATED BEFORE PUBLISHING.  P. 731. 

(B) THE PEOPLE'S STAKE IN THE CONDUCT OF PUBLIC OFFICIALS IS SO
GREAT THAT NEITHER THE DEFENSE OF TRUTH NOR THE STANDARD OF ORDINARY
CARE WOULD ADEQUATELY IMPLEMENT FIRST AMENDMENT POLICIES.  PP. 731
732. 

(C) A DEFENDANT'S TESTIMONY THAT HE ACTED IN GOOD FAITH IS NOT
CONCLUSIVE AS TO THAT ISSUE, SINCE THE FACT FINDER IN THE LIGHT OF ALL
THE SURROUNDING CIRCUMSTANCES MUST DETERMINE WHETHER THE PUBLICATION
WAS INDEED MADE IN GOOD FAITH.  P. 732. 

(D) THE EVIDENCE IN THIS CASE IS NOT SUFFICIENT TO PERMIT THE
CONCLUSION THAT PETITIONER ACTED IN RECKLESS DISREGARD OF WHETHER THE
STATEMENTS ABOUT RESPONDENT WERE FALSE OR NOT.  PP. 732-733. 

250 LA. 405, 196 SO.2D 255, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE LOUISIANA SUPREME
COURT, IN SUSTAINING A JUDGMENT FOR DAMAGES IN A PUBLIC OFFICIAL'S
DEFAMATION ACTION, CORRECTLY INTERPRETED AND APPLIED THE RULE OF NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964), THAT THE PLAINTIFF IN
SUCH AN ACTION MUST PROVE THAT THE DEFAMATORY PUBLICATION "WAS MADE
WITH 'ACTUAL MALICE'-- THAT IS, WITH THE KNOWLEDGE THAT IT WAS FALSE OR
WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR NOT."  376 U.S.,AT
279-280. 

ON JUNE 27, 1962, PETITIONER ST. AMANT, A CANDIDATE FOR PUBLIC
OFFICE, MADE A TELEVISED SPEECH IN BATON ROUGE, LOUISIANA.  IN THE
COURSE OF THIS SPEECH, ST. AMANT READ A SERIES OF QUESTIONS WHICH HE
HAD PUT TO J. D. ALBIN, A MEMBER OF A TEAMSTERS UNION LOCAL, AND
ALBIN'S ANSWERS TO THOSE QUESTIONS.  THE EXCHANGE CONCERNED THE
ALLEGEDLY NEFARIOUS ACTIVITIES OF E. G. PARTIN, THE PRESIDENT OF THE
LOCAL, AND THE ALLEGED RELATIONSHIP BETWEEN PARTIN AND ST. AMANT'S
POLITICAL OPPONENT.  ONE OF ALBIN'S ANSWERS CONCERNED HIS EFFORTS TO
PREVENT PARTIN FROM SECRETING UNION RECORDS; IN THIS ANSWER ALBIN
REFERRED TO HERMAN A. THOMPSON, AN EAST BATON ROUGE PARISH DEPUTY
SHERIFF AND RESPONDENT HERE: 

"NOW, WE KNOW THAT THIS SAFE WAS GONNA BE MOVED THAT NIGHT, BUT
IMAGINE OUR PREDICAMENT, KNOWING OF ED'S CONNECTIONS WITH THE SHERIFF'S
OFFICE THROUGH HERMAN THOMPSON, WHO MADE RECENT VISITS TO THE HALL TO
SEE ED.  WE ALSO KNOW OF MONEY THAT HAD PASSED HANDS BETWEEN ED AND
HERMAN THOMPSON . . . FROM ED TO HERMAN.  WE ALSO KNOW OF HIS
CONNECTIONS WITH STATE TROOPER LIEUTENANT JOE GREEN.  WE KNOW WE
COULDN'T GET ANY HELP FROM THERE AND WE DIDN'T KNOW HOW FAR THAT HE WAS
INVOLVED IN THE SHERIFF'S OFFICE OR THE STATE POLICE OFFICE THROUGH
THAT, AND IT WAS OUT OF THE JURISDICTION OF THE CITY POLICE."  /1/ 

THOMPSON PROMPTLY BROUGHT SUIT FOR DEFAMATION, CLAIMING THAT THE
PUBLICATION HAD "IMPUTED) . . . GROSS MISCONDUCT" AND "INFERRED)
CONDUCT OF THE MOST NEFARIOUS NATURE."  THE CASE WAS TRIED PRIOR TO THE
DECISION IN NEW YORK TIMES CO. V. SULLIVAN, SUPRA.  THE TRIAL JUDGE
RULED IN THOMPSON'S FAVOR AND AWARDED $5,000 IN DAMAGES.  THEREAFTER,
IN THE COURSE OF ENTERTAINING AND DENYING A MOTION FOR A NEW TRIAL, THE
COURT CONSIDERED THE RULING IN NEW YORK TIMES, FINDING THAT RULE NO
BARRIER TO THE JUDGMENT ALREADY ENTERED.  THE LOUISIANA COURT OF APPEAL
REVERSED BECAUSE THE RECORD FAILED TO SHOW THAT ST. AMANT HAD ACTED
WITH ACTUAL MALICE, AS REQUIRED BY NEW YORK TIMES.  184 SO.2D 314
(1966).  THE SUPREME COURT OF LOUISIANA REVERSED THE INTERMEDIATE
APPELLATE COURT.  250 LA. 405, 196 SO.2D 255 (1967).  IN ITS VIEW,
THERE WAS SUFFICIANT EVIDENCE THAT ST. AMANT RECKLESSLY DISREGARDED
WHETHER THE STATEMENTS ABOUT THOMPSON WERE TRUE OR FALSE.  WE GRANTED A
WRIT OF CERTIORARI.  389 U.S. 1033 (1968). 

FOR PURPOSES OF THIS CASE WE ACCEPT THE DETERMINATIONS OF THE
LOUISIANA COURTS THAT THE MATERIAL PUBLISHED BY ST. AMANT CHARGED
THOMPSON WITH CRIMINAL CONDUCT, THAT THE CHARGE WAS FALSE, AND THAT
THOMPSON WAS A PUBLIC OFFICIAL /2/  AND SO HAD THE BURDEN OF PROVING
THAT THE FALSE STATEMENTS ABOUT THOMPSON WERE MADE WITH ACTUAL MALICE
AS DEFINED IN NEW YORK TIMES CO. V. SULLIVAN AND LATER CASES.  WE
CANNOT, HOWEVER, AGREE WITH EITHER THE SUPREME COURT OF LOUISIANA OR
THE TRIAL COURT THAT THOMPSON SUSTAINED THIS BURDEN. 

PURPORTING TO APPLY THE NEW YORK TIMES MALICE STANDARD, THE
LOUISIANA SUPREME COURT RULED THAT ST. AMANT HAD BROADCAST FALSE
INFORMATION ABOUT THOMPSON RECKLESSLY, THOUGH NOT KNOWINGLY.  SEVERAL
REASONS WERE GIVEN FOR THIS CONCLUSION.  ST. AMANT HAD NO PERSONAL
KNOWLEDGE OF THOMPSON'S ACTIVITIES; HE RELIED SOLELY ON ALBIN'S
AFFIDAVIT ALTHOUGH THE RECORD WAS SILENT AS TO ALBIN'S REPUTATION FOR
VERACITY; HE FAILED TO VERIFY THE INFORMATION WITH THOSE IN THE UNION
OFFICE WHO MIGHT HAVE KNOWN THE FACTS; HE GAVE NO CONSIDERATION TO
WHETHER OR NOT THE STATEMENTS DEFAMED THOMPSON AND WENT AHEAD HEEDLESS
OF THE CONSEQUENCES' AND HE MISTAKENLY BELIEVED HE HAD NO
RESPONSIBILITY FOR THE BROADCAST BECAUSE HE WAS MERELY QUOTING ALBIN'S
WORDS. 

THESE CONSIDERATIONS FALL SHORT OF PROVING ST. AMANT'S RECKLESS
DISREGARD FOR THE ACCURACY OF HIS STATEMENTS ABOUT THOMPSON.  "RECKLESS
DISREGARD," IT IS TRUE, CANNOT BE FULLY ENCOMPASSED IN ONE INFALLIBLE
DEFINITION.  INEVITABLY ITS OUTER LIMITS WILL BE MARKED OUT THROUGH
CASE-BY-CASE ADJUDICATION, AS IS TRUE WITH SO MANY LEGAL STANDARDS FOR
JUDGING CONCRETE CASES, WHETHER THE STANDARD IS PROVIDED BY THE
CONSTITUTION, STATUTES, OR CASE LAW.  OUR CASES, HOWEVER, HAVE
FURNISHED MEANINGFUL GUIDANCE FOR FURTHER DEFINITION OF A RECKLESS
PUBLICATION.  IN NEW YORK TIMES, SUPRA, THE PLAINTIFF DID NOT SATISFY
HIS BURDEN BECAUSE THE RECORD FAILED TO SHOW THAT THE PUBLISHER WAS
AWARE OF THE LIKELIHOOD THAT HE WAS CIRCULATING FALSE INFORMATION.  IN
GARRISON V. LOUISIANA, 379 U.S. 64 (1964), ALSO DECIDED BEFORE THE
DECISION OF THE LOUISIANA SUPREME COURT IN THIS CASE, THE OPINION
EMPHASIZED THE NECESSITY FOR A SHOWING THAT A FALSE PUBLICATION WAS
MADE WITH A "HIGH DEGREE OF AWARENESS OF . . . PROBABLE FALSITY."  379
U.S.,AT 74.  MR. JUSTICE HARLAN'S OPINION IN CURTIS PUBLISHING CO. V.
BUTTS, 388 U.S. 130, 153 (1967), STATED THAT EVIDENCE OF EITHER
DELIBERATE FALSIFICATION OR RECKLESS PUBLICATION "DESPITE THE
PUBLISHER'S AWARENESS OF PROBABLE FALSITY" WAS ESSENTIAL TO RECOVERY BY
PUBLIC OFFICIALS IN DEFAMATION ACTIONS.  THESE CASES ARE CLEAR THAT
RECKLESS CONDUCT IS NOT MEASURED BY WHETHER A REASONABLY PRUDENT MAN
WOULD HAVE PUBLISHED, OR WOULD HAVE INVESTIGATED BEFORE PUBLISHING. 
THERE MUST BE SUFFICIENT EVIDENCE TO PERMIT THE CONCLUSION THAT THE
DEFENDANT IN FACT ENTERTAINED SERIOUS DOUBTS AS TO THE TRUTH OF HIS
PUBLICATION.  PUBLISHING WITH SUCH DOUBTS SHOWS RECKLESS DISREGARD FOR
TRUTH OF FALSITY AND DEMONSTRATES ACTUAL MALICE. 

IT MAY BE SAID THAT SUCH A TEST PUTS A PREMIUM ON IGNORANCE,
ENCOURAGES THE IRRESPONSIBLE PUBLISHER NOT TO INQUIRE, AND PERMITS THE
ISSUE TO BE DETERMINED BY THE DEFENDANT'S TESTIMONY THAT HE PUBLISHED
THE STATEMENT IN GOOD FAITH AND UNAWARE OF ITS PROBABLE FALSITY. 
CONCEDEDLY THE RECKLESS DISREGARD STANDARD MAY PERMIT RECOVERY IN FEWER
SITUATIONS THAN WOULD A RULE THAT PUBLISHERS MUST SATISFY THE STANDARD
OF THE REASONABLE MAN OR THE PRUDENT PUBLISHER.  BUT NEW YORK TIMES AND
SUCCEEDING CASES HAVE EMPHASIZED THAT THE STAKE OF THE PEOPLE IN PUBLIC
BUSINESS AND THE CONDUCT OF PUBLIC OFFICIALS IS SO GREAT THAT NEITHER
THE DEFENSE OF TRUTH NOR THE STANDARD OF ORDINARY CARE WOULD PROTECT
AGAINST SELF-CENSORSHIP AND THUS ADEQUATELY IMPLEMENT FIRST AMENDMENT
POLICIES.  NEITHER LIES NOR FALSE COMMUNICATIONS SERVE THE ENDS OF THE
FIRST AMENDMENT, AND NO ONE SUGGESTS THEIR DESIRABILITY OR FURTHER
PROLIFERATION.  BUT TO INSURE THE ASCERTAINMENT AND PUBLICATION OF THE
TRUTH ABOUT PUBLIC AFFAIRS, IT IS ESSENTIAL THAT THE FIRST AMENDMENT
PROTECT SOME ERRONEOUS PUBLICATIONS AS WELL AS TRUE ONES.  WE ADHERE TO
THIS VIEW AND TO THE LINE WHICH OUR CASES HAVE DRAWN BETWEEN FALSE
COMMUNICATIONS WHICH ARE PROTECTED AND THOSE WHICH ARE NOT. 

THE DEFENDANT IN A DEFAMATION ACTION BROUGHT BY A PUBLIC OFFICIAL
CANNOT, HOWEVER, AUTOMATICALLY INSURE A FAVORABLE VERDICT BY TESTIFYING
THAT HE PUBLISHED WITH A BELIEF THAT THE STATEMENTS WERE TRUE.  THE
FINDER OF FACT MUST DETERMINE WHETHER THE PUBLICATION WAS INDEED MADE
IN GOOD FAITH.  PROFESSIONS OF GOOD FAITH WILL BE UNLIKELY TO PROVE
PERSUASIVE, FOR EXAMPLE, WHERE A STORY IS FABRICATED BY THE DEFENDANT,
IS THE PRODUCT OF HIS IMAGINATION, OR IS BASED WHOLLY ON AN UNVERIFIED
ANONYMOUS TELEPHONE CALL.  NOR WILL THEY BE LIKELY TO PREVAIL WHEN THE
PUBLISHER'S ALLEGATIONS ARE SO INHERENTLY IMPROBABLE THAT ONLY A
RECKLESS MAN WOULD HAVE PUT THEM IN CIRCULATION.  LIKEWISE,
RECKLESSNESS MAY BE FOUND WHERE THERE ARE OBVIOUS REASONS TO DOUBT THE
VERACITY OF THE INFORMANT OR THE ACCURACY OF HIS REPORTS.  /3/ 

BY NO PROPER TEST OF RECKLESS DISREGARD WAS ST. AMANT'S BROADCAST A
RECKLESS PUBLICATION ABOUT A PUBLIC OFFICER.  NOTHING REFERRED TO BY
THE LOUISIANA COURTS INDICATES AN AWARENESS BY ST. AMANT OF THE
PROBABLE FALSITY OF ALBIN'S STATEMENT ABOUT THOMPSON.  FAILURE TO
INVESTIGATE DOES NOT IN ITSELF ESTABLISH BAD FAITH.  NEW YORK TIMES CO.
V. SULLIVAN, SUPRA, AT 287-288.  ST. AMANT'S MISTAKE ABOUT HIS PROBABLE
LEGAL LIABILITY DOES NOT EVIDENCE A DOUBTFUL MIND ON HIS PART.  THAT HE
FAILED TO REALIZE THE IMPORT OF WHAT HE BROADCAST-- AND WAS THUS
"HEEDLESS" OF THE CONSEQUENCES FOR THOMPSON-- IS SIMILARLY COLORLESS. 
CLOSER TO THE MARK ARE CONSIDERATIONS OF ALBIN'S RELIABILITY.  HOWEVER,
THE MOST THE STATE COURT COULD SAY WAS THAT THERE WAS NO EVIDENCE IN
THE RECORD OF ALBIN'S REPUTATION VERACITY, AND THIS FACT MERELY
UNDERLINES THE FAILURE OF THOMPSON'S EVIDENCE TO DEMONSTRATE A LOW
COMMUNITY ASSESSMENT OF ALBIN'S TRUSTWORTHINESS OR UNSATISFACTORY
EXPERIENCE WITH HIM BY ST. AMANT. 

OTHER FACTS IN THIS RECORD SUPPORT OUR VIEW.  ST. AMANT MADE HIS
BROADCAST IN JUNE 1962.  HE HAD KNOWN ALBIN SINCE OCTOBER 1961, WHEN HE
FIRST MET WITH MEMBERS OF THE DISSIDENT TEAMSTERS FACTION.  ST. AMANT
TESTIFIED THAT HE HAD VERIFIED OTHER ASPECTS OF ALBIN'S INFORMATION AND
THAT HE HAD AFFIDAVITS FROM OTHERS.  MOREOVER ALBIN SWORE TO HIS
ANSWERS, FIRST IN WRITING AND LATER IN THE PRESENCE OF NEWSMEN. 
ACCORDING TO ALBIN, HE WAS PREPARED TO SUBSTANTIATE HIS CHARGES.  ST.
AMANT KNEW THAT ALBIN WAS ENGAGED IN AN INTERNAL STRUGGLE IN THE UNION;
ALBIN SEEMED TO ST. AMANT TO BE PLACING HIMSELF IN PERSONAL DANGER BY
PUBLICLY AIRING THE DETAILS OF THE DISPUTE. 

BECAUSE THE STATE COURT MISUNDERSTOOD AND MISAPPLIED THE ACTUAL
MALICE STANDARD WHICH MUST BE OBSERVED IN A PUBLIC OFFICIAL'S
DEFAMATION ACTION, THE JUDGMENT IS REVERSED AND THE CASE REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  ST. AMANT HAD PRECEDED THIS QUESTION AND ANSWER WITH OTHER
ANSWERS BY ALBIN ASSERTING THAT PARTIN, ON LEARNING THAT A UNION MEMBER
HAD WRITTEN TO THE SECRETARY OF LABOR CHARGING THAT PARTIN HAD BEEN
STEALING UNION FUNDS, HAD BECOME "PRETTY RILED UP" AND HAD DECIDED TO
"GET RID OF THE SAFE" CONTAINING THE UNION RECORDS. 

/2/  THE LOUISIANA SUPREME COURT CONCLUDED, AFTER CONSIDERING STATE
LAW, THAT A DEPUTY SHERIFF HAS "SUBSTANTIAL RESPONSIBILITY FOR OR
CONTROL OVER THE CONDUCT OF GOVERNMENTAL AFFAIRS," THE TEST ESTABLISHED
BY ROSENBLATT V. BAER, 383 U.S. 75, 85 (1966), "AT LEAST WHERE LAW
ENFORCEMENT AND POLICE FUNCTIONS ARE CONCERNED."  250 LA., AT 422, 196
SO.2D, AT 261. 

/3/  SEE, E.G., CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 169
170 (WARREN, C.J., CONCURRING IN THE RESULT), AND 172 (BRENNAN, J.,
DISSENTING (1967). 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE JUDGMENT OF
THE COURT FOR THE REASONS SET OUT IN THEIR CONCURRING OPINIONS IN NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 293 (1964), AND GARRISON V.
LOUISIANA, 379 U.S. 64, 79, 80 (1964). 

MR. JUSTICE FORTAS, DISSENTING. 

I DO NOT BELIEVE THAT PETITIONER SATISFIED THE MINIMAL STANDARDS OF
CARE SPECIFIED BY NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964). 
THE AFFIDAVIT THAT PETITIONER BROADCAST CONTAINED A SERIOUSLY LIBELOUS
STATEMENT DIRECTED AGAINST RESPONDENT.  RESPONDENT WAS A PUBLIC
OFFICIAL.  HE WAS NOT PETITIONER'S ADVERSARY IN THE POLITICAL CONTEST. 
PETITIONER'S CASUAL, CARELESS, CALLOUS USE OF THE LIBEL CANNOT BE
RATIONALIZED AS RESULTING FROM THE HEAT OF A CAMPAIGN.  UNDER NEW YORK
TIMES, THIS LIBEL WAS BROADCAST BY PETITIONER WITH "ACTUAL MALICE"--
WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR NOT.  THE PRINCIPLE
OF CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130 (1967), IN MY OPINION,
SHOULD LEAD US TO AFFIRMANCE HERE. 

THE FIRST AMENDMENT IS NOT SO FRAGILE THAT IT REQUIRES US TO
IMMUNIZE THIS KIND OF RECKLESS, DESTRUCTIVE INVASION OF THE LIFE, EVEN
OF PUBLIC OFFICIALS, HEEDLESS OF THEIR INTERESTS AND SENSITIVITIES. 
THE FIRST AMENDMENT IS NOT A SHELTER FOR THE CHARACTER ASSASSINATOR,
WHETHER HIS ACTION IS HEEDLESS AND RECKLESS OR DELIBERATE.  THE FIRST
AMENDMENT DOES NOT REQUIRE THAT WE LICENSE SHOTGUN ATTACKS ON PUBLIC
OFFICIALS IN VIRTUALLY UNLIMITED OPEN SEASON.  THE OCCUPATION OF PUBLIC
OFFICEHOLDER DOES NOT FORFEIT ONE'S MEMBERSHIP IN THE HUMAN RACE.  THE
PUBLIC OFFICIAL SHOULD BE SUBJECT TO SEVERE SCRUTINY AND TO FREE AND
OPEN CRITICISM.  BUT IF HE IS NEEDLESSLY, HEEDLESSLY, FALSELY ACCUSED
OF CRIME, HE SHOULD HAVE A REMEDY IN LAW.  NEW YORK TIMES DOES NOT
PRECLUDE THIS MINIMAL STANDARD OF CIVILIZED LIVING. 

PETITIONER HAD A DUTY HERE TO CHECK THE RELIABILITY OF THE LIBELOUS
STATEMENT ABOUT RESPONDENT.  IF HE HAD MADE A GOOD-FAITH CHECK, I WOULD
AGREE THAT HE SHOULD BE PROTECTED EVEN IF THE STATEMENT WERE FALSE,
BECAUSE THE INTEREST OF PUBLIC OFFICIALS IN THEIR REPUTATION MUST
ENDURE THIS DEGREE OF ASSAULT.  BUT SINCE HE MADE NO CHECK, I AGREE
WITH THE SUPREME COURT OF LOUISIANA THAT NEW YORK TIMES DOES NOT
PROHIBIT RECOVERY.     I WOULD AFFIRM. 

RUSSEL J. SCHONEKAS ARGUED THE CASUE AND FILED A BRIEF FOR
PETITIONER. 

ROBERT L. KLEINPETER ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT. 
..END :













HANNER V. DEMARCUS, 390 U.S. 736 


       HANNER V. DEMARCUS ET UX.

        CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

        NO. 497.  ARGUED MARCH 28, 1968.-- DECIDED APRIL 29, 1968. 


102 ARIZ. 105, 425 P.2D 837, CERTIORARI DISMISSED. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

RESPONDENT WAS APPOINTED SPECIAL MASTER IN AN ARIZONA DIVORCE
PROCEEDING WHERE PETITIONER, JOSEPHINE HANNER, WAS DEFENDANT.  THE
DIVORCE COURT ORDERED PETITIONER TO PAY RESPONDENT'S $5,072.10 SPECIAL
MASTER'S FEE.  RESPONDENT OBTAINED A WRIT OF EXECUTION AND LEVIED ON
CERTAIN REAL PROPERTY OF PETITIONER, WHICH RESPONDENT PURCHASED AT THE
EXECUTION SALE FOR THE AMOUNT OF JUDGMENT, LATER ACQUIRING A SHERIFF'S
DEED.  THE ONLY NOTICE OF THE EXECUTION AND JUDICIAL SALE WAS BY
NEWSPAPER PUBLICATION AND PUBLIC POSTING.  THREE YEARS AFTER THE
EXECUTION, RESPONDENT COMMENCED A QUIET-TITLE ACTION IN ARIZONA COURT. 
PETITIONER PLEADED AS AN AFFIRMATIVE DEFENSE THAT THE EXECUTION AND
DEED WERE "NULL AND VOID AND OF NO EFFECT" BECAUSE NEITHER RESPONDENT
NOR THE SHERIFF GAVE HER ACTUAL NOTICE OF THE EXECUTION AND JUDICIAL
SALE, ALTHOUGH RESPONDENT KNEW HER ADDRESS AND THAT OF HER ATTORNEY IN
THE DIVORCE ACTION.  RESPONDENT WAS GRANTED SUMMARY JUDGMENT, AND, ON
APPEAL TO THE ARIZONA SUPREME COURT, PETITIONER URGED THAT BECAUSE NO
ACTUAL NOTICE WAS GIVEN HER, THE PROCEDURE FOR EXECUTION VIOLATED THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PETITIONER URGED THE
STATE SUPREME COURT TO CONSTRUE RULE 53(A) OF THE ARIZONA RULES OF
CIVIL PROCEDURE, CONCERNING MASTER'S FEES, TO REQUIRE ACTUAL NOTICE TO
THE DEBTOR OF EXECUTION, IN ORDER TO AVOID THE CONSTITUTIONAL PROBLEM. 
THAT COURT, HOWEVER, HELD THAT RULE 53(A) DID NOT REQUIRE NOTICE OF
EXECUTION, BUT MERELY OF THE UNDERLYING DEBT, AND CONCLUDED THAT THE
PROCEDURE DID NOT DENY DUE PROCESS. 

IN HER PETITION FOR WRIT OF CERTIORARI, MRS. HANNER URGED THAT THE
FAILURE TO GIVE HER ACTUAL NOTICE OF THE EXECUTION PREJUDICED HER IN
THREE RESPECTS:  (1) SHE WAS UNABLE TO INVOKE PER PRIVILEGE UNDER STATE
LAW, ARIZ. REV. STAT. ANN. SEC. 12-1562, TO SPECIFY WHICH PROPERTY THE
SHERIFF SHOULD SEIZE TO SATISFY THE DEBT; (2) SHE WAS UNABLE TO DEMAND
THAT THE SHERIFF COMPLY WITH ARIZ. REV. STAT. ANN. SEC. 12-1553,
PROVIDING THAT EXECUTION BE LEVIED ON PERSONAL PROPERTY RATHER THAN
REALTY, WHERE THE PERSONALTY IS SUFFICIENT TO SATISFY THE JUDGMENT; AND
(3) RESPONDENT WAS ENABLED TO ACQUIRE FOR LESS THAN $5,100 LAND WHICH
HE IN THE DIVORCE CASE HAD VALUED AT $20,000 AND WHICH PETITIONER
VALUES AT $40,000, BECAUSE PETITIONER, NOT KNOWING OF THE JUDICIAL
SALE, WAS UNABLE TO PROTECT HER INTERESTS. 

IN HIS BRIEF OPPOSING CERTIORARI, RESPONDENT ARGUED THAT THE ONLY
FEDERAL QUESTION PRESENTED, WHETHER ACTUAL NOTICE OT THE JUDGMENT
DEBTOR OF EXECUTION AND JUDICIAL SALE WAS REQUIRED BY PROCEDURAL DUE
PROCESS, HAD BEEN DECIDED IN ENDICOTT JOHNSON CORP. V. ENCYCLOPEDIA
PRESS, 266 U.S. 285, WHICH HELD THAT NOTICE OF THE UNDERLYING DEBT
SUFFICED.  WE GRANTED CERTIORARI TO DETERMINE WHETHER ENDICOTT SHOULD
BE OVERRULED.  389 U.S. 926. 

IN HIS BRIEF ON THE MERITS, RESPONDENT CHANGED POSITION AND ARGUED
THAT THE ENDICOTT QUESTION WAS NOT PROPERLY BEFORE THIS COURT. 
FACT REQUIRE THAT THE DEBTOR BE GIVEN ACTUAL NOTICE.  IT IS URGED THAT
BY FAILING TO INVOKE THESE SECTIONS BUT INSTEAD ARGUING THAT RULE 53(A)
WAS UNCONSTITUTIONAL UNLESS CONSTRUED TO REQUIRE ACTUAL NOTICE
PETITIONER BYPASSED STATE GROUNDS WHICH MIGHT HAVE ENTITLED HER TO
RELIEF. 

THE OFFICER TO SATISFY A JUDGMENT AGAINST THE PROPERTY OF THE DEBTOR
"OUT OF THE PERSONAL PROPERTY OF THE DEBTOR, AND IF SUFFICIENT PERSONAL
PROPERTY CANNOT BE FOUND, THEN OUT OF HIS REAL PROPERTY . . . ." 
LEVYING OFFICER THE PROPERTY HE DESIRES TO BE LEVIED ON, AND IF THE
OFFICER DEEMS IT SUFFICIENT TO SATISFY THE EXECUTION, HE SHALL MAKE
LEVY ON NO OTHER PROPERTY." 

IN BLASINGAME V. WALLACE, 32 ARIZ. 580, 261 P. 42, THE ARIZONA
SUPREME COURT HELD THESE PROVISIONS WERE "NOT MANDATORY" BUT THAT THE
JUDICIAL SALE "MAY BE SET ASIDE WHERE IT IS SHOWN THAT THE JUDGMENT
DEBTOR HAD SUFFICIENT PERSONAL PROPERTY WHICH COULD HAVE BEEN APPLIED
UPON THE JUDGMENT, AND THAT THE OFFICER KNEW IT, OR BY THE EXERCISE OF
REASONABLE DILIGENCE COULD HAVE DISCOVERED IT, AND FAILED TO LEVY UPON
IT, BUT INSTEAD LEVIED UPON AND SOLD FOR THE AMOUNT OF THE JUDGMENT
REAL PROPERTY WORTH MANY TIMES THAT SUM."  ID., AT 586, 261 P., AT 44. 

WE DO NOT KNOW PRECISELY WHAT PETITIONER ARGUED IN THE SUPREME COURT
OF ARIZONA BECAUSE THE BRIEFS OF THE PARTIES IN THAT COURT HAVE NOT
BEEN MADE A PART OF THE RECORD HERE.  IT APPEARS, HOWEVER, FROM THE
SKETCHY RECORD THAT IS BEFORE US THAT SHE DID MAKE TIMELY OBJECTION
THAT THE SHERIFF DID NOT CONSULT WITH HER RESPECTING THE PROPERTY UPON
WHICH HE WOULD LEVY.  IN HER AFFIDAVIT OPPOSING SUMMARY JUDGMENT
PETITIONER MADE TWO SEPARATE AND DISTINCT ARGUMENTS REGARDING NOTICE. 
THE FIRST STATES:  "AFFIANTS ALLEGE THAT AT NO TIME DID . . . THESE
AFFIANTS RECEIVE ANY NOTICE FROM THE SAID CECIL DEMARCUS OR HIS AGENTS
OR HIS ATTORNEY AS REQUIRED BY RULE 53(A) RULES OF CIVIL PROCEDURE FOR
THE SUPREME COURTS OF THE STATE OF ARIZONA, WHICH IS A MATERIAL ISSUE
OF FACT AS TO WHETHER THE NOTICE REQUIRED BY SAID RULE 53(A) WAS GIVEN
TO THESE DEFENDANTS BY THE PLAINTIFF." 

IN THE NEXT PARAGRAPH OF THE AFFIDAVIT PETITIONER MADE A DIFFERENT
ALLEGATTION RESPECTING NOTICE:  "AFFIANTS FURTHER ALLEGE THAT AT NO
TIME DID THEY RECEIVE ANY NOTICE FROM THE SHERIFF OF MARICOPA COUNTY,
STATE OF ARIZONA AS TO ANY EXECUTION ISSUED OUT OF THE ABOVE ENTITLED
COURT OF SAID LOTS . . . . "  SINCE PETITIONER'S POSITION WAS THAT RULE
53(A), RELATING TO SPECIAL MASTERS, REQUIRED THE MASTER TO GIVE NOTICE,
THE ALLEGATIONS RESPECTING FAILURE OF THE SHERIFF TO GIVE NOTICE COULD
ONLY BE RELEVANT UNDER THE STATE'S BLASINGAME DOCTRINE.  THE FACT THAT
THIS AFFIDAVIT WAS BEFORE THE STATE SUPREME COURT, COUPLED WITH
RESPONDENT'S CONCESSION THAT PETITIONER ARGUED THERE THAT IF ACTUAL
NOTICE WERE NOT PROVIDED FOR DUE PROCESS WOULD BE VIOLATED, COMPELS THE
CONCLUSION THAT FOR PURPOSES OF THIS COURT'S REVIEW OF FEDERAL
QUESTIONS PETITIONER ADEQUATELY PRESENTED TO THE ARIZONA COURTS THE
ISSUE OF THE APPLICABILITY OF BLASINGAME, EVEN THOUGH SHE MAY NOT HAVE
CITED THAT CASE OR SEC. 12-1553 AND 12-1562 UNTIL HER PETITION FOR
REHEARING.  MOREOVER, THIS COURT WILL NOT DECLINE TO DECIDE A
CONSTITUTIONAL QUESTION SIMPLY BECAUSE OF A STATE'S TECHNICALITIES
RESPECTING BRIEFING AND PLEADING.  SEE NAACP V. ALABAMA, 377 U.S. 288;
WRIGHT V. GEORGIA, 373 U.S. 284; STAUB V. CITY OF BAXLEY, 355 U.S. 313,
318. 

WHEN THE JUDGMENT BELOW IS VIEWED AS HODLING BY NECESSITY THAT
BLASINGAME DOES NOT ENTITLE PETITIONER TO RELIEF, IT IS UNQUESTIONABLE
THAT THE ARIZONA SUPREME COURT HAS HELD CONSTITUTIONAL A PROCEDURE FOR
EXECUTION OF JUDGMENT AND JUDICIAL SALE IN WHICH THE DEBTOR RECEIVES NO
ACTUAL NOTICE OF THESE PROCEEDINGS.  /1/  WITH ALL DUE RESPECT, ONLY A
BARON PARKE /2/  WOULD SAY THAT THE FEDERAL QUESTION RESPECTING NOTICE
HAD NOT BEEN RAISED AND THEREFORE THAT THE WRIT SHOULD BE DISMISSED AS
IMPROVIDENTLY GRANTED. 

THE PROPRIETY OF OVERRULING ENDICOTT JOHNSON CORP. V. ENCYCLOPEDIA
PRESS, SUPRA, IS THEREFORE SQUARELY PRESENTED. 

ENDICOTT WAS DECIDED IN 1924, AND ITS HOLDING THAT DUE PROCESS DOES
NOT REQUIRE NOTIFYING A JUDGMENT DEBTOR OF EXECUTION OF HIS PROPERTY
HAS NEVER BEEN REAFFIRMED BY THIS COURT.  SIGNIFICANTLY, THE COURT IN
ENDICOTT DID NOT HOLD THAT ABSENCE OF ANY NOTICE AT ALL WAS
PERMISSIBLE, BUT RATHER THAT THE JUDGMENT DEBTOR, HAVING HAD HIS DAY IN
COURT AND BEING AWARE OF THE JUDGMENT AGAINST HIM, IS EXPECTED TO KNOW
THAT EXECUTION MAY FOLLOW. 

SINCE THE ENDICOTT DECISION, THERE HAS BEEN NOT ONLY AN EXPANSION OF
THE SCOPE OF THE NOTICE REQUIREMENT ITSELF (E.G., ARMSTRONG V. MANZO,
380 U.S. 545 (ADOPTION); LAMBERT V. CALIFORNIA, 355 U.S. 225 (FELON'S
DUTY TO REGISTER); COVEY V. TOWN OF SOMERS, 351 U.S. 141 (PROPERTY TAX
FORECLOSURE)), /3/  BUT A NEW APPROACH TO THE CONSTITUTIONAL
SUFFICIENCY OF THE MEANS OF GIVING NOTICE IN PARTICULAR TYPES OF
CASES.  MULLANE V. CENTRAL HANOVER TR. CO., 339 U.S. 306; WALKER V.
HUTCHINSON CITY, 352 U.S. 112; SCHROEDER V. CITY OF NEW YORK, 371 U.S.
208.  "THE MEANS EMPLOYED MUST BE SUCH AS ONE DESIROUS OF ACTUALLY
INFORMING THE (OPPOSING PARTY) MIGHT RESONABLY ADOPT TO ACCOMPLISH
IT."  MULLANE V. CENTRAL HANOVER TR. CO., 339 U.S., AT 315. 

THE ENDICOTT RATIONALE THAT A PARTY WHO HAS LITIGATED A CASE AND HAD
A JUDGMENT TAKEN AGAINST HIM IS DEEMED, FOR PURPOSES OF DUE PROCESS, TO
BE ON NOTICE OF FURTHER PROCEEDINGS IN THE SAME ACTION WAS REJECTED IN
GRIFFIN V. GRIFFIN, 327 U.S. 220.  THERE THE WIFE WON A DIVORCE FROM
HER HUSBAND IN 1926 AND AN AWARD OF $3,000 PER YEAR ALIMONY.  IN 1938,
WITHOUT NOTIFYING HER EX-HUSBAND, THE DEBTOR, SHE OBTAINED A JUDGMENT
FOR ALIMONY ARREARS AND A WRIT OF EXECUTION.  UNDER THE APPLICABLE NEW
YORK LAW, THE HUSBAND COULD HAVE DEFEATED LIABILITY FOR THE ACCRUED
ARREARAGE BY PROOF, FOR EXAMPLE, THAT THE WIFE HAD REMARRIED OR OF
CHANGE OF CIRCUMSTANCES, SUCH AS COMPARATIVE FINANCIAL STATUS,
WARRANTING RETROACTIVE MODIFICATION OF THE ALIMONY AWARD. 

WE HELD FAILURE TO GIVE ACTUAL NOTICE TO THE HUSBAND OF THE 1938
PROCEEDINGS VIOLATED DUE PROCESS, SAYING:  "WHILE IT IS UNDOUBTEDLY
TRUE THAT THE 1926 DECREE, TAKEN WITH THE NEW YORK PRACTICE ON THE
SUBJECT, GAVE PETITIONER NOTICE AT THE TIME OF ITS ENTRY THAT FURTHER
PROCEEDINGS MIGHT BE TAKEN TO DOCKET IN JUDGMENT FORM THE OBLIGATION TO
PAY INSTALLMENTS ACCRUING UNDER THE DECREE, WE FIND IN THIS NO GROUND
FOR SAYING THAT DUE PROCESS DOES NOT REQUIRE FURTHER NOTICE OF THE TIME
AND PLACE OF SUCH FURTHER PROCEEDINGS, INASMUCH AS THEY UNDERTOOK
SUBSTANTIALLY TO AFFECT HIS RIGHTS IN WAYS IN WHICH THE 1926 DECREE DID
NOT."  ID., AT 229. 

DOES NOT GRIFFIN POINT THE WAY TO THE DEMANDS OF DUE PROCESS IN THE
INSTANT CASE?  THE FURTHER PROCEEDINGS IN MRS. HANNER'S CASE--
EXECUTION AND JUDICIAL SALE-- CERTAINLY "UNDERTOOK SUBSTANTIALLY TO
AFFECT (HER) RIGHTS."  IN GRIFFIN SUBSTANTIAL PROPERTY RIGHTS WERE AT
STAKE AT FURTHER PROCEEDINGS BECAUSE STATE LAW ENTITLED THE DEBTOR TO
REDUCE HIS DEBT ON PROOF OF CHANGED CIRCUMSTANCES; IN THE INSTANT CASE
SUBSTANTIAL PROPERTY RIGHTS WERE AT STAKE BECAUSE STATE LAW GAVE THE
DEBTOR THE RIGHT TO SELECT THE PROPERTY TO BE LEVIED ON AND TO
EFFECTIVELY PREVENT RESPONDENT FROM SEIZING PROPERTY WORTH $20,000 OR
$40,000 FOR A $5,072.10 JUDGMENT.  IS THERE ANY MORE REASON TO ACCEPT
IN THIS CASE THE ENDICOTT FICTION OF CONSTRUCTION NOTICE BECAUSE OF
KNOWLEDGE OF THE UNDERLYING JUDGMENT THAT THERE WAS IN GRIFFIN? 

WE SHOULD FACE THE QUESTION WHETHER IN LIGHT OF OUR RECENT DECISIONS
ENDICOTT SHOULD BE OVERRULED. 

/1/  RULE 53(A) PROVIDES IN RELEVANT PART:  "(WHEN THE PARTY ORDERED
TO PAY THE COMPENSATION ALLOWED BY THE COURT (TO A MASTER) DOES NOT PAY
IT AFTER NOTICE AND WITHIN THE TIME PRESCRIBED BY THE COURT, THE MASTER
IS ENTITLED TO A WRIT OF EXECUTION AGAINST THE DELINQUENT PARTY."  THE
ARIZONA SUPREME COURT HELD:  "A CURSORY READING OF THE RULE MAKES IT
EVIDENT THAT THE WORD 'NOTICE' REFERS TO A NOTICE TO THE DEBTOR OF HIS
OBLIGATION AND THAT THE RULE DOES NOT THEN FURTHER REQUIRE A NOTICE OF
AN INTENT TO EXECUTE, ONCE NOTIFICATION OF THE JUDGMENT IS PROPERLY
GIVEN.  THEREFORE WHETHER OR NOT (PETITIONER) HAD ACTUAL NOTICE OF THE
INTENDED EXECUTION IS IMMATERIAL . . . RULE 54(A) . . . IS CLEAR IN ITS
TERMS.  IF THE COMPENSATION IS NOT PAID, THE RULE PROVIDES A MEANS BY
WHICH PAYMENT MAY BE SECURED.  WE DISAGREE WITH DEFENDANT'S CONTENTION
THAT THIS METHOD IS EITHER VAGUE OR LACKING IN THE PROTECTIONS
GUARANTEED BY THE DUE PROCESS CLAUSES OF EITHER THE ARIZONA OR FEDERAL
CONSTITUTIONS."  KNIGHT V. DEMARCUS, 102 ARIZ. 105, 107-108, 425 P.2D
837, 839-840. 

/2/  SIR JAMES PARKE SERVED ON ENGLAND;S BENCH FROM 1828-1855.  "HIS
FAULT WAS AN ALMOST SUPERSTITIOUS REVERENCE FOR THE DARK TECHNICALITIES
OF SPECIAL PLEADING."  15 DICTIONARY OF NATIONAL BIOGRAPHY 226. 

/3/  "ENGRAINED IN OUR CONCEPT OF DUE PROCESS IS THE REQUIREMENT OF
NOTICE.  NOTICE IS SOMETIMES ESSENTIAL SO THAT THE CITIZEN HAD THE
CHANCE TO DEFEND CHARGES.  NOTICE IS REQUIRED BEFORE PROPERTY INTERESTS
ARE DISTURBED, BEFORE ASSESSMENTS ARE MADE, BEFORE PENALTIES ARE
ASSESSED.  NOTICE IS REQUIRED IN A MYRIAD OF SITUATIONS WHERE A PENALTY
OR FORFEITURE MIGHT BE SUFFERED FOR MERE FAILURE TO ACT."  LAMBERT V.
CALIFORNIA, 355 U.S. 225, 228. 

MR. JUSTICE BRENNAN, DISSENTING. 

I AGREE WITH MY BROTHER DOUGLAS, FOR THE REASONS STATED IN HIS
DISSENTING OPINION, THAT THE FEDERAL QUESTION RESPECTING NOTICE WAS
RAISED AND THEREFORE THAT WE HAVE THE DUTY TO DECIDE WHETHER ENDICOTT
JOHNSON CORP. V. ENCYCLOPEDIA PRESS, 266 U.S. 285, SHOULD BE
OVERRULED.  IN MY VIEW THE SITUATION IN THIS CASE IS INDISTINGUISHABLE
FROM THAT IN ENDICOTT-- BOTH INVOLVE MONEY JUDGMENTS AND PRESENT THE
IDENTICAL QUESTION WHETHER ACTUAL NOTICE TO THE JUDGMENT DEBTOR OF
EXECUTION AND JUDICIAL SALE WAS REQUIRED BY PROCEDURAL DUE PROCESS.  IN
THAT CIRCUMSTANCE THE JUDGMENT BEFORE US CANNOT BE REVERSED WITHOUT
OVERRULING ENDICOTT.  SINCE THE COURT REFUSES TO CONSIDER WHETHER
ENDICOTT SHOULD BE OVERRULED, I SEE NO ALTERNATIVE BUT TO VOTE TO
AFFIRM ON ITS AUTHORITY.     PHILIP M. HAGGERTY ARGUED THE CAUSE FOR
PETITIONER.  WITH HIM ON THE BRIEFS WAS RAYMOND R. WEIN. 

N. PIKE JOHNSON, JR., ARGUED THE CAUSE FOR RESPONDENTS.  ON THE
BRIEF WAS ROBERT JOHN WALTON. 
..END :







HOSACK V. SMILEY, 390 U.S. 744 


       HOSACK ET AL. V. SMILEY ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLORADO. 

        NO. 1196.  DECIDED APRIL 29, 1968. 


276 F.SUPP.  876, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MELVIN L. WULF FOR APPELLANTS. 

DUKE W. DUNBAR, ATTORNEY GENERAL OF COLORADO, AND JOHN P. HOLLOWAY,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :









SOUTHERN PACIFIC CO. V. UNITED STATES, 390 U.S. 744 


       SOUTHERN PACIFIC CO. ET AL. V. UNITED STATES ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF NEBRASKA. 

        NO. 1159.  DECIDED APRIL 29, 1968. 


277 F.SUPP.  671, AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

ALAN C. FURTH, ROBERT L. PIERCE, WILLIAM P. HIGGINS AND G. CLARK
CUMMINGS FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL TURNER,
ROBERT W. GINNANE AND BETTY JO CHRISTIAN FOR THE UNITED STATES ET AL.;
ERNEST PORTER, DENNIS MCCARTHY, E. L. VANDELLEN, WALTER G. TREANOR AND
E. BARRETT PRETTYMAN, JR., FOR DENVER & RIO GRANDE WESTERN RAILROAD CO.
ET AL., APPELLEES. 
..END :





ROADWAY EXPRESS, INC. V. DIRECTOR, DIVISION OF TAXATION, 390 U.S.
745 


       ROADWAY EXPRESS, INC. V. DIRECTOR, DIVISION OF TAXATION. 

        APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

        NO. 1225.  DECIDED APRIL 29, 1968. 


50 N.J. 471, 236 A.2D 577, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 

NICHOLAS CONOVER ENGLISH FOR APPELLANT. 

ARTHUR J. SILLS, ATTORNEY GENERAL OF NEW JERSEY, AND ELIAS ABELSON
AND JEFFREY R. LOWE, DEPUTY ATTORNEYS GENERAL, FOR APPELLEE. 
..END :





DELLA ROCCA V. UNITED STATES, 390 U.S. 745 


       DELLA ROCCA V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT. 

        NO. 1105.  DECIDED APRIL 29, 1968. 


CERTIORARI GRANTED; 388 F.2D 525, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
VACATED.  THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF HAYNES V.
UNITED STATES, ANTE, P. 85, AND SIMMONS V. UNITED STATES, ANTE, P.
377. 

JEROME LEWIS AND THOMAS R. NEWMAN FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :






SIMS V. COHEN, 390 U.S. 746 


       SIMS V. COHEN, ACTING SECRETARY OF HEALTH, EDUCATION, AND

           WELFARE. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

        NO. 386, MISC.  DECIDED APRIL 29, 1968. 


CERTIORARI GRANTED, 378 F.2D 70, REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
HOPKINS V. COHEN, ANTE.  P. 530. 

THE CHIEF JUSTICE AND MR. JUSTICE WHITE DISSENT FOR THE REASONS
STATED IN THE DISSENTING OPINION OF MR. JUSTICE WHITE IN HOPKINS V.
COHEN, ANTE, P. 535. 

MR JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

H. H. GEARINGER FOR PETITIONER. 

SOLICITOR GENERAL MARSHALL FOR RESPONDENT. 

ISREAL STEINGOLD FOR THE AMERICAL TRIAL LAWYERS ASSOCIATION, AS
AMICUS CRUIAE, IN SUPPORT OF THE PETITION. 
..END :

















BARBER V. PAGE, 390 U.S. 719 


       BARBER V. PAGE, WARDEN. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           TENTH CIRCUIT. 

        NO. 703.  ARGUED MARCH 28, 1968.-- DECIDED APRIL 23, 1968. 


PETITIONER AND ONE WOODS WERE JOINTLY CHARGED WITH ARMED ROBBERY. 
DURING THE PRELIMINARY HEARING WOODS WAIVED HIS PRIVILEGE AGAINST SELF
INCRIMINATION AND TESTIFIED, INCRIMINATING PETITIONER.  PETITIONER'S
COUNSEL DID NOT CROSS-EXAMINE WOODS.  WHEN PETITIONER WAS TRIED IN
OKLAHOMA SEVEN MONTHS LATER, WOODS WAS IN A FEDERAL PRISON IN TEXAS. 
THE STATE OF OKLAHOMA MADE NO EFFORT TO OBTAIN WOODS' RESENCE AT TRIAL
BUT INTRODUCED, OVER PETITIONER'S OBJECTION ON THE GROUND OF
DEPRIVATION OF HIS RIGHT TO BE CONFRONTED WITH THE WITNESSES AGAINST
HIM, THE TRANSCRIPT OF WOODS' TESTIMONY AT THE PRELIMINARY HEARING ON
THE BASIS THAT HE WAS OUT OF THE STATE AND THUS UNAVAILABLE TO
TESTIFY.  PETITIONER WAS CONVICTED.  HE SOUGHT FEDERAL HABEAS CORPUS
CLAIMING DEPRIVATION OF HIS RIGHT OF CONFRONTATION, BUT HIS CONTENTION
WAS REJECTED BY THE DISTRICT COURT, AND THE COURT OF APPEALS AFFIRMED. 
HELD: 

1.  WHILE THERE IS A TRADITIONAL EXECPTION TO THE CONFRONTATION
REQUIREMENT WHERE A WITNESS IS UNAVAILABLE AND HAS GIVEN TESTIMONY AT
PREVIOUS JUDICIAL PROCEEDINGS AGAINST THE SAME DEFENDANT WHICH WAS
SUBJECT TO CROSS-EXAMINATION BY THAT DEFENDANT, THE WITNESS IS NOT
"UNAVAILABLE" FOR THE PURPOSES OF THAT EXCEPTION UNLESS THE
PROSECUTORIAL AUTHORITIES HAVE MADE A GOOD-FAITH EFFORT TO OBTAIN HIS
PRESENCE AT TRIAL.  PP. 722-725. 

2.  PETITIONER'S FAILURE TO CROOS-EXAMINE AT THE PRELIMINARY HEARING
DID NOT CONSTITUTE A WAIVER OF THE RIGHT OF CONFRONTATION AT THE
SUBSEQUENT TRIAL; AND EVEN IF PETITIONER HAD CROSS-EXAMINED THE WITNESS
AT THE HEARING HE WOULD NOT HAVE WAIVED HIS RIGHT OF CONFRONTATION,
SINCE IT IS BASICALLY A TRIAL RIGHT, AND INCLUDES BOTH THE OPPORTUNITY
TO CROSS-EXAMINE AND THE OCCASION FOR THE JURY TO WEIGH THE DEMEANOR OF
THE WITNESS.  P. 725. 

381 F.2D 479, REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER PETITIONER WAS DEPRIVED OF HIS
SIXTH AND FOURTEENTH AMENDMENT RIGHT TO BE CONFRONTED WITH THE
WITNESSES AGAINST HIM AS HIS TRIAL IN OKLAHOMA FOR ARMED ROBBERY, AT
WHICH THE PRINCIPAL EVIDENCE AGAINST HIM CONSISTED OF THE READING OF A
TRANSCRIPT OF THE PRELIMINARY HEARING TESTIMONY OF A WITNESS WHO AT THE
TIME OF TRIAL WAS INCARCERATED IN A FEDERAL PRISON IN TEXAS. 

PETITIONER AND ONE WOODS WERE JOINTLY CHARGED WITH THE ROBBERY, AND
AT THE PRELIMINARY HEARING WERE REPRESENTED BY THE SAME RETAINING
COUNSEL, A MR. PARKS.  DURING THE COURSE OF THE HEARING, WOODS AGREED
TO WAIVE HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  PARKS THEN WITHDREW
AS WOODS' ATTORNEY BUT CONTINUED TO REPRESENT PETITIONER.  THEREUPON
WOODS PROCEEDED TO GIVE TESTIMONY THAT INCRIMINATED PETITIONER.  PARKS
DID NOT CROSS-EXAMINE WOODS, ALTHOUGH AN ATTORNEY FOR ANOTHER
CODEFENDANT DID. 

BY THE TIME PETITIONER WAS BROUGHT TO TRIAL SOME SEVEN MONTHS LATER,
WOODS WAS INCARCERATED IN A FEDERAL PENITENTIARY IN TEXARKANA, TEXAS,
ABOUT 225 MILES FROM THE TRIAL COURT IN OKLAHOMA.  THE STATE PROPOSED
TO INTRODUCE AGAINST PETITIONER THE TRANSCRIPT OF WOODS' TESTIMONY AT
THE PRELIMINARY HEARING ON THE GROUND THAT WOODS WAS UNAVAILABLE TO
TESTIFY BECAUSE HE WAS OUTSIDE THE JURISDICTION.  PETITIONER OBJECTED
TO THAT COURSE ON THE GROUND THAT IT WOULD DEPRIVE HIM OF HIS RIGHT TO
BE CONFRONTED WITH THE WITNESSES AGAINST HIM.  HIS OBJECTION WAS
OVERRULED AND THE TRANSCRIPT WAS ADMITTED AND READ TO THE JURY, WHICH
FOUND HIM GUILTY.  ON APPEAL THE OKLAHOMA COURT OF CRIMINAL APPEALS
AFFIRMED HIS CONVICTION.  BARBER V. STATE, 388 P.2D 320 (OKLA. CRIM.
APP. 1963). 

PETITIONER THEN SOUGHT FEDERAL HABEAS CORPUS, CLAIMING THAT THE USE
OF THE TRANSCRIPT OF WOODS' TESTIMONY IN HIS STATE TRIAL DEPRIVED HIM
OF HIS FEDERAL CONSTITUTIONAL RIGHT TO CONFRONTATION IN VIOLATION OF
THE SIXTH AND FOURTEENTH AMENDMENTS.  HIS CONTENTION WAS REJECTED BY
THE DISTRICT COURT AND ON APPEAL THE COURT OF APPEALS FOR THE TENTH
CIRCUIT, ONE JUDGE DISSENTING, AFFIRMED.  381 F.2D 479 (1966).  WE
GRANTED CERTIORARI, 389 U.S. 819 (1967), TO CONSIDER PETITIONER'S
DENIAL OF CONFRONTATION CLAIM, AND WE REVERSE. 

MANY YEARS AGO THIS COURT STATED THAT "(THE PRIMARY OBJECT OF THE
(CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT) . . . WAS TO PREVENT
DEPOSITIONS OR EX PARTE AFFIDAVITS . . . BEING USED AGAINST THE
PRISONER IN LIEU OF A PERSONAL EXAMINATION AND CROSS-EXAMINATION OF THE
WITNESS IN WHICH THE ACCUSED HAS AN OPPORTUNITY, NOT ONLY OF TESTING
THE RECOLLECTION AND SIFTING THE CONSCIENCE OF THE WITNESS, BUT OF
COMPELLING HIM TO STAND FACE TO FACE WITH THE JURY IN ORDER THAT THEY
MAY LOOK AT HIM, AND JUDGE BY HIS DEMEANOR UPON THE STAND AND THE
MANNER IN WHICH HE GIVES HIS TESTIMONY WHETHER HE IS WORTHY OF
BELIEF."  MATTOX V. UNITED STATES, 156 U.S. 237, 242-243 (1895).  MORE
RECENTLY, IN HOLDING THE SIXTH AMENDMENT RIGHT OF CONFRONTATION
APPLICABLE TO THE STATES THROUGH THE FOURTEENTH AMENDMENT, THIS COURT
SAID, "THERE ARE FEW SUBJECTS, PERHAPS, UPON WHICH THIS COURT AND OTHER
COURTS HAVE BEEN MORE NEEARLY UNANIMOUS THAN IN THEIR EXPRESSIONS OF
BELIEF THAT THE RIGHT OF CONFRONTATION AND CROSS-EXAMINATION IS AN
ESSENTIAL AND FUNDAMENTAL REQUIREMENT FOR THE KIND OF FAIR TRIAL WHICH
IS THIS COUNTRY'S CONSTITUTIONAL GOAL."  POINTER V. TEXAS, 380 U.S.
400, 405 (1965).  SEE ALSO DOUGLAS V. ALABAMA, 380 U.S. 415 (1965). 

IT IS TRUE THAT THERE HAS TRADITIONALLY BEEN AN EXCEPTION TO THE
CONFRONTATION REQUIREMENT WHERE A WITNESS IS UNAVAILABLE AND HAS GIVEN
TESTIMONY AT PREVIOUS JUDICIAL PROCEEDINGS AGAINST THE SAME DEFENDANT
WHICH WAS SUBJECT TO CROSS-EXAMINATION BY THAT DEFENDANT.  E.G., MATTOX
V. UNITED STATES, SUPRA (WITNESSES WHO TESTIFIED IN ORIGINAL TRIAL DIED
PRIOR TO THE SECOND TRIAL).  THIS EXCEPTION HAS BEEN EXPLAINED AS
ARISING FROM NECESSITY AND HAS BEEN JUSTIFIED ON THE GROUND THAT THE
RIGHT OF CROSS-EXAMINATION INITIALLY AFFORDED PROVIDES SUBSTANTIAL
COMPLIANCE WITH THE PURPOSES BEHIND THE CONFRONTATION REQUIREMENT.  SEE
5 WIGMORE, EVIDENCE 1395-1396, 1402 (3D ED. 1940); C. MCCORMICK,
EVIDENCE SECS. 231, 234 (1954). 

HERE THE STATE ARGUES THAT THE INTRODUCTION OF THE TRANSCRIPT IS
WITHIN THAT EXCEPTION ON THE GROUNDS THAT WOODS WAS OUTSIDE THE
JURISDICTION AND THEREFORE "UNAVAILABLE" AT THE TIME OF TRIAL, AND THAT
THE RIGHT OF CROSS-EXAMINATION WAS AFFORDED PETITIONER AT THE
PRELIMINARY HEARING, ALTHOUGH NOT UTILIZED THEN BY HIM.  FOR THE
PURPOSE OF THIS DECISION WE SHALL ASSUME THAT PETITIONER MADE A VALID
WAIVER OF HIS RIGHT TO CROSS-EXAMINE WOODS AT THE PRELIMINARY HEARING,
ALTHOUGH SUCH AN ASSUMPTION SEEMS OPEN TO CONSIDERABLE QUESTION UNDER
THE CIRCUMSTANCES.  /1/ 

WE START WITH THE FACT THAT THE STATE MADE ABSOLUTELY NO EFFORT TO
OBTAIN THE PRESENCE OF WOODS AT TRIAL OTHER THEN TO ASCERTAIN THAT HE
WAS IN A FEDERAL PRISON OUTSIDE OKLAHOMA.  IT MUST BE ACKNOWLEDGED THAT
VARIOUS COURTS /2/ AND COMMENTATORS /3/  HAVE HERETOFORE ASSUMED THAT
THE MERE ABSENCE OF A WITNESS FROM THE JURISDICTION WAS SUFFICIENT
GROUND FOR DISPENSING WITH CONFRONTATION ON THE THEORY THAT "IT IS
IMPOSSIBLE TO COMPEL HIS ATTENDANCE BECAUSE THE PROCESS OF THE TRIAL
COURT IS OF NO FORCE WITHOUT THE JURISDICTION, AND THE PARTY DESIRING
HIS TESTIMONY IS THEREFORE HELPLESS."  5 WIGMORE, EVIDENCE 1404 (3D ED.
1940). 

WHATEVER MAY HAVE BEEN THE ACCURACY OF THAT THEORY AT ONE TIME, IT
IS CLEAR THAT AT THE PRESENT TIME INCREASED COOPERATION BETWEEN THE
STATES THEMSELVES AND BETWEEN THE STATES AND THE FEDERAL GOVERNMENT HAS
LARGELY DEPRIVED IT OF ANY CONTINUING VALIDITY IN THE CRIMINAL LAW. 
/4/  FOR EXAMPLE, IN THE CASE OF A PROSPECTIVE WITNESS CURRENTLY IN
FEDERAL CUSTODY, 28 U.S.C. 2241(C)(5) GIVES GIVERAL COURTS THE POWER TO
ISSUE WRITS OF HABEAS CORPUS AD TESTIFICANDUM AT THE REQUEST OF STATE
PROSECUTORIAL AUTHORITIES.  SEE GILMORE V. UNITED STATES, 129 F.2D 199,
202 (C.A. 10TH CIR. 1942); UNITED STATES V. MCGAHA, 205 F.SUPP.  949
(D.C.E.D. TENN. 1962).  IN ADDITION, IT IS THE POLICY OF THE UNITED
STATES BUREAU OF PRISONS TO PERMIT FEDERAL PRISONERS TO TESTIFY IN
STATE COURT CRIMINAL PROCEEDINGS PURSUANT TO WRITS OF HABEAS CORPUS AD
TESTIFICANDUM ISSUED OUT OF STATE COURTS.  /5/  CF. LAWRENCE V.
WILLINGHAM, 373 F.2D 731 (C.A. 10TH CIR. 1967) (HABEAS CORPUS AD
PROSEQUENDUM). 

IN THIS CASE THE STATE AUTHORITIES MADE NO EFFORT TO AVAIL
THEMSELVES OF EITHER OF THE ABOVE ALTERNATIVE MEANS OF SEEKING TO
SECURE WOODS' PRESENT AT PETITIONER'S TRIAL.  THE COURT OF APPEALS
MAJORITY APPEARS TO HAVE REASONED THAT BECAUSE THE STATE WOULD HAVE HAD
TO REQUEST AN EXERCISE OF DISCRETION ON THE PART OF FEDERAL
AUTHORITIES, IT WAS UNDER NO OBLIGATION TO MAKE ANY SUCH REQUEST.  YET
AS JUDGE ALDRICH, SITTING BY DESIGNATION, POINTED OUT IN DISSENT BELOW,
"THE POSSIBILITY OF A REFUSAL IS NOT THE EQUIVALENT OF ASKING AND
RECEIVING A REBUFF."  381 F.2D, AT 481.  IN SHORT, A WITNESS IS NOT
"UNAVAILABLE" FOR PURPOSES OF THE FOREGOING EXCEPTION TO THE
CONFRONTATION REQUIREMENT UNLESS THE PROSECUTORIAL AUTHORITIES HAVE
MADE A GOOD-FAITH EFFORT TO OBTAIN HIS PRESENCE AT TRIAL.  THE STATE
MADE NO SUCH EFFORT HERE, AND, SO FAR AS THIS RECORD REVEALS, THE SOLE
REASON WHY WOODS WAS NOT PRESENT TO TESTIFY IN PERSON WAS BECAUSE THE
STATE DID NOT ATTEMPT TO SEEK HIS PRESENCE.  THE RIGHT OF CONFRONTATION
MAY NOT BE DISPENSED WITH SO LIGHTLY. 

THE STATE ARGUES THAT PETITIONER WAIVED HIS RIGHT TO CONFRONT WOODS
AT TRIAL BY NOT CROSS-EXAMINING HIM AT THE PRELIMINARY HEARING.  THAT
CONTENTION IS UNTENABLE.  NOT ONLY WAS PETITIONER UNAWARE THAT WOODS
WOULD BE IN A FEDERAL PRISON AT THE TIME OF HIS TRIAL, BUT HE WAS ALSO
UNAWARE THAT, EVEN ASSUMING WOODS' INCARCERATION, THE STATE WOULD MAKE
NO EFFORT TO PRODUCE WOODS' AT TRIAL.  TO SUGGEST THAT FAILURE TO CROSS
EXAMINE IN SUCH CIRCUMSTANCES CONSTITUTES A WAIVER OF THE RIGHT OF
CONFRONTATION AT A SUBSEQUENT TRIAL HARDLY COMPORTS WITH THIS COURT'S
DEFINITION OF A WAIVER AS "AN INTENTIONAL RELINQUISHMENT OR ABANDONMENT
OF A KNOWN RIGHT OR PRIVILEGE."  JOHNSON V. ZERBST, 304 U.S. 458, 464
(1938); BROOKHART V. JANIS, 384 U.S. 1, 4 (1966). 

MOREOVER, WE WOULD REACH THE SAME RESULT ON THE FACT OF THIS CASE
HAD PETITIONER'S COUNSEL ACTUALLY CROSS-EXAMINED WOODS AT THE
PRELIMINARY HEARING.  SEE MOTES V. UNITED STATES, 178 U.S. 458 (1900). 
THE RIGHT TO CONFRONTATION IS BASICALLY A TRIAL RIGHT.  IT INCLUDES
BOTH THE OPPORTUNITY TO CROSS-EXAMINE AND THE OCCASION FOR THE JURY TO
WEIGH THE DEMEANOR OF THE WITNESS.  A PRELIMINARY HEARING IS ORDINARILY
A MUCH LESS SEARCHING EXPLORATION INTO THE MERITS OF A CASE THAN A
TRIAL, SIMPLY BECAUSE ITS FUNCTION IS THE MORE LIMITED ONE OF
DETERMINING WHETHER PROBABLE CAUSE EXISTS TO HOLD THE ACCUSED FOR
TRIAL.  WHILE THERE MAY BE SOME JUSTIFICATION FOR HOLDING THAT THE
OPPORTUNITY FOR CROSS-EXAMINATION OF A WITNESS AT A PRELIMINARY HEARING
SATISFIES THE DEMANDS OF THE CONFRONTATION CLAUSE WHERE THE WITNESS IS
SHOWN TO BE ACTUALLY UNAVAILABLE, THIS IS NOT, AS WE HAVE POINTED OUT,
SUCH A CASE.  /6/ 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT IS
REVERSED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  SINCE WOODS AND HIS ATTORNEY PARKS PRESUMABLY DISCUSSED WOODS'
CONNECTION WITH THE CRIME BEFORE THE PRELIMINARY HEARING, IT WOULD SEEM
HIGHLY PROBABLE THAT EFFECTIVE CROSS-EXAMINATION BY PARKS OF WOODS
WOULD HAVE NECESSITATED COVERING MATERIAL ABOUT WHICH WOODS HAS MADE
CONFIDENTIAL COMMUNICATIONS TO PARKS.  WHILE THE STATE MAY BE CORRECT
IN ASSERTING THAT WOODS HAD WAIVED, UNDER OKLAHOMA LAW, HIS RIGHT TO
ASSERT THE ATTORNEY-CLIENT PRIVILEGE AS TO THOSE MATTERS BY TESTIFYING,
AT THE VERY LEAST SERIOUS ETHICAL QUESTIONS WOULD SEEM TO BE PRESENTED
TO PARKS UNDER THOSE CIRCUMSTANCES.  AND IN FACT, THE CASES CITED BY
THE STATE IN SUPPORT OF ITS CONTENTION THAT THE ATTORNEY-CLIENT
PRIVILEGE WOULD NOT HAVE BARRED CROSS-EXAMINATION BY PARKS INVOLVED
SITUATIONS WHERE THE CLIENT HAD TESTIFIED ABOUT THE EXISTENCE AND
NATURE OF THE COMMUNICATIONS BETWEEN HIMSELF AND HIS ATTORNEY PRIOR TO
THE INTRODUCTION OF THE ATTORNEY'S TESTIMONY BY WAY OF REBUTTAL.  E.G.,
BROWN V. STATE, 9 OKLA.CRIM.  382, 132 P. 359 (1913); BORING V. HARBER,
130 OKLA. 251, 267 P. 252 (1927).  AS FAR AS THE RECORD REVEALS, WOODS
DID NOT TESTIFY ABOUT ANY COMMUNICATIONS BETWEEN HIMSELF AND PARKS AND
HENCE THE APPLICABILITY OF THE FOREGOING CASES IS QUESTIONABLE. 

/2/  SEE CASES COLLECTED IN 5 WIGMORE, EVIDENCE 1404, N. 5 (3D ED.,
1964 SUPP.). 

/3/  E.G., C. MCCORMICK, EVIDENCE SEC. 234 (1954). 

/4/  FOR WITNESSES NOT IN PRISON, THE UNIFORM ACT TO SECURE THE
ATTENDANCES OF WITNESSES FROM WITHOUT A STATE IN CRIMINAL PROCEEDINGS
PROVIDES A MEANS BY WHICH PROSECUTING AUTHORITIES FROM ONE STATE CAN
OBTAIN AN ORDER FROM A COURT IN THE STATE WHERE THE WITNESS IS FOUND
DIRECTING THE WITNESS TO APPEAR IN COURT IN THE FIRST STATE TO
TESTIFY.  THE STATE SEEKING HIS APPEARANCE MUST BAY THE WITNESS A
SPECIFIED SUM AS A TRAVEL ALLOWANCE AND COMPENSATION FOR HIS TIME.  AS
OF 1967 THE UNIFORM ACT WAS IN FORCE IN 45 STATES, THE DISTRICT OF
COLUMBIA, THE CANAL ZONE, PUERTO RICO, AND THE VIRGIN ISLANDS.  SEE 9
UNIFORM LAWS ANN. 50 (1967 SUPP.).  FOR WITNESSES IN PRISON, QUITE
PROBABLY MANY STATE COURTS WOULD UTILIZE THE COMMON-LAW WRIT OF HABEAS
CORPUS AD TESTIFICANDUM AT THE REQUEST OF PROSECUTORIAL AUTHORITIES OF
A SISTER STATE UPON A SHOWING THAT ADEQUATE SAFEGUARDS TO KEEP THE
PRISONER IN CUSTODY WOULD BE MAINTAINED. 

/5/  DEPARTMENT OF JUSTICE, UNITED STATES MARSHALS MANUAL SEC. 720.04
720.06.  CF. BRIEF FOR THE UNITED STATES AS AMICUS CURIAE, SMITH V.
HOOEY, NO. 495, MISC., OCTOBER TERM, 1967 (HABEAS CORPUS AD
PROSEQUENDUM 

MR. JUSTICE HARLAN, CONCURRING. 

I AGREE THAT THE STATE'S FAILURE TO ATTEMPT TO OBTAIN THE PRESENCE
OF THE WITNESS DENIED PETITIONER DUE PROCESS, AND I THEREFORE CONCUR IN
THE OPINION OF THE COURT ON THE PREMISES OF MY OPINION IN POINTER V.
TEXAS, 380 U.S. 400, 408. 

IRA C. ROTHGERBER, JR., BY APPOINTMENT OF THE COURT, 389 U.S. 910,
ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

CHARLES L. OWENS, ASSISTANT ATTORNEY GENERAL OF OKLAHOMA, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WAS G. T. BLANKENSHIP,
ATTORNEY GENERAL. 
..END :













UNITED STATES V. COLEMAN, 390 U.S. 599 


       UNITED STATES ET AL. V. COLEMAN ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

        NINTH CIRCUIT. 

        NO. 630.  ARGUED MARCH 28, 1968.-- DECIDED APRIL 22, 1968. 


RESPONDENT COLEMAN SOUGHT A PATENT TO LANDS IN A NATIONAL FOREST
PREDICATED ON 30 U.S.C. 22, UNDER WHICH TITLE TO LAND OWNED BY THE
UNITED STATES CONTAINING "VALUABLE MINERAL DEPOSITS" MAY BE ISSUED TO
THE DISCOVERER OF THE DEPOSITS, AND ON 30 U.S.C. 161 ALLOWING CLAIMS TO
LANDS "CHIEFLY VALUABLE FOR BUILDING STONE."  COLEMAN CONTENDED THAT
DEPOSITS OF QUARTZITE (ONE OF THE MOST COMMON OF ALL SOLID MATERIALS)
QUALIFIED UNDER THOSE PROVISIONS.  THE SECRETARY OF THE INTERIOR DENIED
THE PATENT APPLICATION, HOLDING (1) THAT TO QUALIFY FOR A PATENT UNDER
SEC. 22 IT MUST BE SHOWN THAT THE MINERAL CAN BE "EXTRACTED, REMOVED
AND MARKETED AT A PROFIT," A TEST WHICH ON THE LARGELY UNDISPUTED
EVIDENCE COLEMAN COULD NOT MEET, AND (2) THAT THE QUARTZITE WAS A
"COMMON VARIETY OF STONE" WHICH, UNDER 30 U.S.C. 611, COULD NOT QUALIFY
FOR A CLAIM UNDER THE MINING LAWS.  WHEN COLEMAN REMAINED ON THE LAND,
THE GOVERNMENT BROUGHT THIS EJECTMENT ACTION AGAINST COLEMAN AND HIS
LESSEE AND THEY COUNTERCLAIMED FOR ISSUANCE OF A PATENT.  THE DISTRICT
COURT RENDERED SUMMARY JUDGMENT FOR THE GOVERNMENT.  THE COURT OF
APPEALS REVERSED.  HELD: 

1.  THE DETERMINATION OF THE SECRETARY OF THE INTERIOR THAT THE
QUARTZITE DID NOT QUALIFY AS A VALUABLE MINERAL DEPOSIT BECAUSE IT
COULD NOT BE MARKETED AT A PROFIT MUST BE UPHELD AS A REASONABLE
INTERPRETATION OF 30 U.S.C. 22.  PP. 601-603. 

2.  THE SECRETARY CORRECTLY RULED THAT "(IN VIEW OF THE IMMENSE
QUANTITIES OF IDENTICAL STONE FOUND IN THE AREA OUTSIDE THE CLAIMS, THE
STONE MUST BE CONSIDERED A 'COMMON VARIETY'" AND THUS UNDER 30 U.S.C.
611 IS EXCLUDED FROM THE MINING LAWS.  PP. 603-605. 

363 F.2D 190, 379 F.2D 555, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1956 RESPONDENT COLEMAN APPLIED TO THE DEPARTMENT OF THE INTERIOR
FOR A PATENT TO CERTAIN PUBLIC LANDS BASED ON HIS ENTRY ONTO AND
EXPLORATION OF THESE LANDS AND HIS DISCOVERY THERE OF A VARIETY OF
STONE CALLED QUARTZITE, ONE OF THE MOST COMMON OF ALL SOLID MATERIALS. 
IT WAS, AND STILL IS, RESPONDENT COLEMAN'S CONTENTION THAT THE
QUARTZITE DEPOSITS QUALIFY AS "VALUABLE MINERAL DEPOSITS" UNDER 30
U.S.C. 22 /1/  AND MAKE THE LAND "CHIEFLY VALUABLE FOR BUILDING STONE"
UNDER 30 U.S.C. 161.  /2/  THE SECRETARY OF THE INTERIOR HELD THAT TO
QUALIFY AS "VALUABLE MINERAL DEPOSITS" UNDER 30 U.S.C. 22 IT MUST BE
SHOWN THAT THE MINERAL CAN BE "EXTRACTED, REMOVED AND MARKETED AT A
PROFIT"-- THE SO-CALLED "MARKETABILITY TEST."  BASED ON THE LARGELY
UNDISPUTED EVIDENCE IN THE RECORD, THE SECRETARY CONCLUDED THAT THE
DEPOSITS CLAIMED BY RESPONDENT COLEMAN DID NOT MEET THAT CRITERION.  AS
TO THE ALTERNATIVE "CHIEFLY VALUABLE FOR BUILDING STONE" CLAIM, THE
SECRETARY HELD THAT RESPONDENT COLEMAN'S QUARTZITE DEPOSITS WERE A
"COMMON VARIETY)" OF STONE WITHIN THE MEANING OF 30 U.S.C. 611, /3/
AND THUS THEY COULD NOT SERVE AS THE BASIS FOR A VALID MINING CLAIM
UNDER THE MINING LAWS.  THE SECRETARY DENIED THE PATENT APPLICATION,
BUT RESONDENT COLEMAN REMAINED ON THE LAND, FORCING THE GOVERNMENT TO
BRING THIS PRESENT ACTION IN EJECTMENT IN THE DISTRICT COURT AGAINST
RESPONDENT COLEMAN AND HIS LESSEE, RESPONDENT MCCLENNAN.  THE
RESPONDENTS FILED A COUNTERCLAIM SEEKING TO HAVE THE DISTRICT COURT
DIRECT THE SECRETARY TO ISSUE A PATENT TO THEM.  THE DISTRICT COURT,
AGREEING WITH THE SECRETARY, RENDERED SUMMARY JUDGMENT FOR THE
GOVERNMENT.  ON APPEAL THE COURT OF APPEALS FOR THE NINTH CIRCUIT
REVERSED, HOLDING SPECIFICALLY THAT THE TEST OF PROFITABLE
MARKETABILITY WAS NOT A PROPER STANDARD FOR DETERMINING WHETHER A
DISCOVERY OF "VALUABLE MINERAL DEPOSITS" UNDER 30 U.S.C. 22 HAD BEEN
MADE AND THAT BUILDING STONE COULD NOT BE DEEMED A "COMMON VARIETY)"
OF STONE UNDER 30 U.S.C. 611.  WE GRANTED THE GOVERNMENT'S PETITION FOR
CERTIORARI BECAUSE OF THE IMPORTANCE OF THE DECISION TO THE UTILIZATION
OF THE PUBLIC LANDS.  389 U.S. 970. 

WE CANNOT AGREE WITH THE COURT OF APPEALS AND BELIEVE THAT THE
RULINGS OF THE SECRETARY OF THE INTERIOR WERE PROPER.  THE SECRETARY'S
DETERMINATION THAT THE QUARTZITE DEPOSITS DID NOT QUALIFY AS VALUABLE
MINERAL DEPOSITS BECAUSE THE STONE COULD NOT BE MARKETED AT A PROFIT
DOES NO VIOLENCE TO THE STATUTE.  INDEED, THE MARKETABILITY TEST IS AN
ADMIRABLE EFFORT TO IDENTIFY WITH GREATER PRECISION AND OBJECTIVITY THE
FACTORS RELEVANT TO A DETERMINATION THAT A MINERAL DEPOSIT IS
"VALUABLE."  IT IS A LOGICAL COMPLEMENT TO THE "PRUDENT-MAN TEST" WHICH
THE SECRETARY HAS BEEN USING TO INTERPRET THE MINING LAWS SINCE 1894. 
UNDER THIS "PRUDENT-MAN TEST" IN ORDER TO QUALIFY AS "VALUABLE MINERAL
DEPOSITS," THE DISCOVERED DEPOSITS MUST BE OF SUCH A CHARACTER THAT "A
PERSON OF ORDINARY PRUDENCE WOULD BE JUSTIFIED IN THE FURTHER
EXPENDITURE OF HIS LABOR AND MEANS, WITH A REASONABLE PROSPECT OF
SUCCESS, IN DEVELOPING A VALUABLE MINE.  . . . " CASTLE V. WOMBLE, 19
L.D. 455, 457 (1894).  THIS COURT HAS APPROVED THE PRUDENT-MAN
FORMULATION AND INTERPRETATION ON NUMEROUS OCCASIONS.  SEE, FOR
EXAMPLE, CHRISMAN V. MILLER, 197 U.S. 313, 322; CAMERON V. UNITED
STATES, 252 U.S. 450, 459; BEST V. HUMBOLDT PLACER MINING CO., 371 U.S.
334, 335-336.  UNDER THE MINING LAWS CONGRESS HAS MADE PUBLIC LANDS
AVAILABLE TO PEOPLE FOR THE PURPOSE OF MINING VALUABLE MINERAL DEPOSITS
AND NOT FOR OTHER PURPOSES.  /4/  THE OBVIOUS INTENT WAS TO REWARD AND
ENCOURAGE THE DISCOVERY OF MINERALS THAT ARE VALUABLE IN AN ECONOMIC
SENSE.  MINERALS WHICH NO PRUDENT MAN WILL EXTRACT BECAUSE THERE IS NO
DEMAND FOR THEM AT A PRICE HIGHER THAN THE COST OF EXTRACTION AND
TRANSPORTATION ARE HARDLY ECONOMICALLY VALUABLE.  THUS, PROFITABILITY
IS AN IMPORTANT CONSIDERATION IN APPLYING THE PRUDENT-MAN TEST, AND THE
MARKETABILITY TEST WHICH THE SECRETARY HAS USED HERE MERELY RECOGNIZES
THIS FACT. 

THE MARKETABILITY TEST ALSO HAS THE ADVANTAGE OF THROWING LIGHT ON A
CLAIMANT'S INTENTION, A MATTER WHICH IS INEXTRICABLY BOUND TOGETHER
WITH VALUABLENESS.  FOR EVIDENCE THAT A MINERAL DEPOSIT IS NOT OF
ECONOMIC VALUE AND CANNOT IN ALL LIKELIHOOD BE OPERATED AT A PROFIT MAY
WELL SUGGEST THAT A CLAIMANT SEEKS THE LAND FOR OTHER PURPOSES. 
INDEED, AS THE GOVERNMENT POINTS OUT, THE FACTS OF THIS CASE-- THE
THOUSANDS OF DOLLARS AND HOURS SPENT BUILDING A HOME ON 720 ACRES IN A
HIGHLY SCENIC NATIONAL FOREST LOCATED TWO HOURS FROM LOS ANGELES, THE
LACK OF AN ECONOMICALLY FEASIBLE MARKET FOR THE STONE, AND THE IMMENSE
QUANTITIES OF IDENTICAL STONE FOUND IN THE AREA OUTSIDE THE CLAIMS--
MIGHT WELL BE THOUGHT TO RAISE A SUBSTANTIAL QUESTION AS TO RESPONDENT
COLEMAN'S REAL INTENTION. 

FINALLY, WE THINK THAT THE COURT OF APPEALS' OBJECTION TO THE
MARKETABILITY TEST ON THE GROUND THAT IT INVOLVES THE IMPOSITION OF A
DIFFERENT AND MORE ONEROUS STANDARD ON CLAIMS FOR MINERALS OF
WIDESPREAD OCCURRENCE THAN FOR RARER MINERALS WHICH HAVE GENERALLY BEEN
DEALT WITH UNDER THE PRUDENT-MAN TEST IS UNWARRANTED.  AS WE HAVE
POINTED OUT ABOVE, THE PRUDENT-MAN TEST AND THE MARKETABILITY TEST ARE
NOT DISTINCT STANDARDS, BUT ARE COMPLEMENTARY IN THAT THE LATTER IS A
REFINEMENT OF THE FORMER.  WHILE IT IS TRUE THAT THE MARKETABILITY TEST
IS USUALLY THE CRITICAL FACTOR IN CASES INVOLVING NONMETALLIC MINERALS
OF WIDESPREAD OCCURRENCE, THIS IS ACCOUNTED FOR BY THE PERFECTLY
NATURAL REASON THAT PRECIOUS METALS WHICH ARE IN SMALL SUPPLY AND FOR
WHICH THERE IS A GREAT DEMAND, SELL AT A PRICE SO HIGH AS TO LEAVE
LITTLE ROOM FOR DOUBT THAT THEY CAN BE EXTRACTED AND MARKETED AT A
PROFIT. 

WE BELIEVE THAT THE SECRETARY OF THE INTERIOR WAS ALSO CORRECT IN
RULING THAT "(IN VIEW OF THE IMMENSE QUANTITIES OF IDENTICAL STONE
FOUND IN THE AREA OUTSIDE THE CLAIMS, THE STONE MUST BE CONSIDERED A
'COMMON VARIETY'" AND THUS MUST FALL WITHIN THE EXCLUSIONARY LANGUAGE
OF SEC. 3 OF THE 1955 ACT 69 STAT. 368, 30 U.S.C. 611, WHICH DECLARES
THAT "(A) DEPOSIT OF COMMON VARIETIES OF . . . STONE . . . SHALL NOT BE
DEEMED A VALUABLE MINERAL DEPOSIT WITHIN THE MEANING OF THE MINING
LAWS.  . . . "  RESPONDENTS RELY ON THE EARLIER 1892 ACT, 30 U.S.C.
161, WHICH MAKES THE MINING LAWS APPLICABLE TO "LANDS THAT ARE CHIEFLY
VALUABLE FOR BUILDING STONE" AND CONTEND THAT THE 1955 ACT HAS NO
APPLICATION TO BUILDING STONE, SINCE, ACCORDING TO RESPONDENTS, "(STONE
WHICH IS CHIEFLY VALUABLE AS BUILDING STONE IS, BY THAT VERY FACT, NOT
A COMMON VARIETY OF STONE."  THIS WAS ALSO THE REASONING OF THE COURT
OF APPEALS.  BUT THIS ARGUMENT COMPLETELY FAILS TO TAKE INTO ACCOUNT
THE REASON WHY CONGRESS FELT COMPELLED TO PASS THE 1955 ACT WITH ITS
MODIFICATION OF THE MINING LAWS.  THE LEGISLATIVE HISTORY MAKES CLEAR
THAT THIS ACT (30 U.S.C. 611) WAS INTENDED TO REMOVE COMMON TYPES OF
SAND, GRAVEL, AND STONE FROM THE COVERAGE OF THE MINING LAWS, UNDER
WHICH THEY SERVED AS A BASIS FOR CLAIMS TO LAND PATENTS, AND TO PLACE
THE DISPOSITION OF SUCH MATERIALS UNDER THE MATERIALS ACT OF 1947, 61
STAT. 681, 30 U.S.C. 601, WHICH PROVIDES FOR THE SALE OF SUCH MATERIALS
WITHOUT DISPOSING OF THE LAND ON WHICH THEY ARE FOUND.  FOR EXAMPLE,
THE CHAIRMAN OF THE HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS
EXPLAINED THE 1955 ACT AS FOLLOWS: 

"THE REASON WE HAVE DONE THAT IS BECAUSE SAND, STONE, GRAVEL . . .
ARE REALLY BUILDING MATERIALS, AND ARE NOT THE TYPE OF MATERIAL
CONTEMPLATED TO BE HANDLED UNDER THE MINING LAWS, AND THAT IS PRECISELY
WHERE WE HAVE HAD SO MUCH ABUSE OF THE MINING LAWS.  . . . " 101
CONG.REC.  8743.  SIMILARLY, THE SENATE COMMITTEE REPORT STATED THAT
THE BILL WAS INTENDED TO: 

     "PROVIDE THAT DEPOSITS OF COMMON VARIETIES OF SAND, BUILDING

  STONE, GRAVEL, PUMICE, PUMICITE, AND CINDERS ON THE PUBLIC LANDS,

  WHERE THEY ARE FOUND IN WIDESPREAD ABUNDANCE, SHALL BE DISPOSED

  OF UNDER THE MATERIALS ACT OF 1947 (61 STAT. 681), RATHER THAN

  UNDER THE MINING LAW OF 1872."  S. REP. NO. 554, 84TH CONG., 1ST

 SESS, 2. 

THUS WE READ 30 U.S.C. 611, PASSED IN 1955, AS REMOVING FROM THE
COVERAGE OF THE MINING LAWS "COMMON VARIETIES" OF BUILDING STONE, BUT
LEAVING 30 U.S.C. 161, THE 1892 ACT, ENTIRELY EFFECTIVE AS TO BUILDING
STONE THAT HAS "SOME PROPERTY GIVING IT DISTINCT AND SPECIAL VALUE"
(EXPRESSLY EXCLUDED UNDER SEC. 611). 

FOR THESE REASONS WE HOLD THAT THE UNITED STATES IS ENTITLED TO
EJECT RESPONDENTS FROM THE LAND AND THAT RESPONDENTS' COUNTERCLAIM FOR
A PATENT MUST FAIL.  THE CASE IS REVERSED AND REMANDED TO THE COURT OF
APPEALS FOR THE NINTH CIRCUIT FOR FURTHER PROCEEDINGS TO CARRY OUT THIS
DECISION. 

       IT IS SO ORDERED. 

/1/  THE CORNERSTONE OF FEDERAL LEGISLATION DEALING WITH MINERAL
LANDS IS THE ACT OF MAY 10, 1872, 17 STAT. 91, 30 U.S.C. 22, WHICH
PROVIDES IN SEC. 1 THAT CITIZENS MAY ENTER AND EXPLORE THE PUBLIC
DOMAIN AND, IF THEY FIND "VALUABLE MINERAL DEPOSITS," MAY OBTAIN TITLE
TO THE LAND ON WHICH SUCH DEPOSITS ARE LOCATED BY APPLICATION TO THE
DEPARTMENT OF THE INTERIOR.  THE SECRETARY OF THE INTERIOR IS "CHARGED
WITH SEEING . . . THAT VALID CLAIMS . . . (ARE) RECOGNIZED, INVALID
ONES ELIMINATED, AND THE RIGHTS OF THE PUBLIC PRESERVED."  CAMERON V.
UNITED STATES, 252 U.S. 450, 460. 

/2/  THE 1872 ACT, SUPRA, WAS SUPPLEMENTED IN 1892 BY THE PASSAGE OF
THE ACT OF AUGUST 4, 1892, 27 STAT. 348, 30 U.S.C. 161, WHICH PROVIDES
IN SEC. 1 IN PERTINENT PART:  "THAT ANY PERSON AUTHORIZED TO ENTER
LANDS UNDER THE MINING LAWS OF THE UNITED STATES MAY ENTER LANDS THAT
ARE CHIEFLY VALUABLE FOR BUILDING STONE UNDER THE PROVISIONS OF THE LAW
IN RELATION TO PLACER MINERAL CLAIMS.  . . . " 

/3/  SECTION 3 OF THE ACT OF JULY 23, 1955, 69 STAT. 368, 30 U.S.C.
611, PROVIDES IN PERTINENT PART AS FOLLOWS:  "A DEPOSIT OF COMMON
VARIETIES OF SAND, STONE, GRAVEL, PUMICE, PUMICITE, OR CINDERS SHALL
NOT BE DEEMED A VALUABLE MINERAL DEPOSIT WITHIN THE MEANING OF THE
MINING LAWS OF THE UNITED STATES SO AS TO GIVE EFFECTIVE VALIDITY OF
ANY MINING CLAIM HEREAFTER LOCATED UNDER SUCH MINING LAWS.  . . .
'COMMON VARIETIES' AS USED IN THIS ACT DOES NOT INCLUDE DEPOSITS OF
SUCH MATERIALS WHICH ARE VALUABLE BECAUSE THE DEPOSIT HAS SOME PROPERTY
GIVING IT DISTINCT AND SPECIAL VALUE.  . . . " 

/4/  17 STAT. 92, 30 U.S.C. 29, PROVIDES IN PERTINENT PART AS
FOLLOWS:  "A PATENT FOR ANY LAND CLAIMED AND LOCATED FOR VALUABLE
DEPOSITS MAY BE OBTAINED IN THE FOLLOWING MANNER:  ANY PERSON . . .
HAVING CLAIMED AND LOCATED A PIECE OF LAND FOR SUCH PURPOSES . . . MAY
FILE.  . . . " 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

FRANK J. BARRY ARGUED THE CAUSE FOR THE UNITED STATES ET AL. ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
MARTZ, ROBERT S. RIFKIND, ROGER P. MARQUIS AND GEORGE R. HYDE. 

HOWARD A. TWITTY ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE GEORGE W. NILSSON, W. HOWARD GRAY, EDWARD A. MCCABE AND
MONTA W. SHIRLEY. 

WINSTON S. HOWARD AND DON H. SHERWOOD FILED A BRIEF FOR THE NEW
JERSEY ZINC CO., AS AMICUS CURIAE. 
..END :













STERN V. SOUTH CHESTER TUBE CO., 390 U.S. 606 


       STERN V. SOUTH CHESTER TUBE CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

 THIRD CIRCUIT. 

        NO. 486.  ARGUED MARCH 25, 1968.-- DECIDED APRIL 22, 1968. 


THE DISTRICT COURT DISMISSED A DIVERSITY ACTION BROUGHT BY
PETITIONER, A STOCKHOLDER OF RESPONDENT, A PENNSYLVANIA CORPORATION,
SEEKING AN ORDER DIRECTING RESPONDENT TO PERMIT HIM TO INSPECT ITS
RECORDS, AS AUTHORIZED BY STATE STATUTE (ENFORCEABLE BY COMPULSORY
STATE JUDICIAL ORDER), ON THE GROUND THAT SUCH AN ORDER IS IN THE
NATURE OF A WRIT OF MANDAMUS AND THE COURT DID NOT HAVE JURISDICTION
UNDER THE ALL WRITS ACT TO ISSUE SUCH ORDER WHERE THAT IS THE ONLY
RELIEF SOUGHT.  THE COURT OF APPEALS AFFIRMED.  HELD:  NEITHER THE ALL
WRITS ACT NOR ANY OTHER PRINCIPLE OF FEDERAL LAW BARS THE GRANTING OF
THE MANDATORY EQUITABLE RELIEF SOUGHT IN THIS CASE.  KANPP V. LAKE
SHORE R. CO., 197 U.S. 536 (1905), DISTINGUISHED.  PP. 608-610. 

378 F.2D 205, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A RESIDENT OF NEW YORK, WHO OWNED STOCK WORTH $10,000 OR
MORE IN THE RESPONDENT SOUTH CHESTER TUBE COMPANY, A CORPORATION,
BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYVANIA, WHERE RESPONDENT WAS INCORPORATED AND
MAINTAINED ITS BUSINESS HEADQUARTERS.  ALLEGING THAT THE CORPORATION
HAD MANY TIMES DENIED PETITIONER'S REQUESTS TO INSPECT ITS BOOKS AND
RECORDS AS AUTHORIZED BY PA. STAT. ANN., TIT. 15, SEC. 2852-308B
(1958), /1/  THE COMPLAINT REQUESTED THE COURT TO ENTER AN ORDER
DIRECTING THE CORPORATION TO PERMIT SUCH AN INSPECTION.  JURISDICTION
WAS INVOKED UNDER 28 U.S.C. 1332(A), WHICH VESTS JURISDICTION IN THE
DISTRICT COURTS WHERE THE MATTER IN CONTROVERSY EXCEEDS THE SUM OF
$10,000 AND WHERE THE PARTIES ARE CITIZENS OF DIFFERENT STATES.  THE
RESPONDENT ANSWERED, ADMITTING PARTS OF THE ALLEGATIONS OF THE
COMPLAINT AND DENYING OTHERS.  RESPONDENT ALSO MOVED TO DISMISS THE
ACTION FOR LACK OF JURISDICTION OF THE SUBJECT MATTER ON THE TWO
FOLLOWING GROUNDS: 

     "1.  THE ONLY RELIEF SOUGHT IN THIS DIVERSITY ACTION IS AN

  ORDER TO COMPEL THE DEFENDANT COMPANY TO ALLOW THE PLAINTIFF, A

  MINORITY SHAREHOLDER, TO INSPECT CERTAIN CORPORATE RECORDS.  SUCH

  AN ORDER IS IN THE NATURE OF A WRIT OF MANDAMUS.  UNDER THE ALL

  WRITS ACT, THIS UNITED STATES DISTRICT COURTS DOES NOT HAVE

JURISDICTION TO ISSUE AN ORDER IN THE NATURE OF A WRIT OF

MANDAMUS IN A CASE IN WHICH THAT WRIT IS THE ONLY RELIEF SOUGHT. 

     "2.  . . . THAT RIGHT OF INSPECTION IS NOT SUBJECT TO ANY

  MONETARY VALUATION.  SINCE DIVERSITY JURISDICTION DEPENDS UPON

  THE EXISTENCE OF AN AMOUNT IN CONTROVERSY WHICH IS CAPABLE OF

  SUCH MONETARY VALUATION (IN EXCESS OF $10,000), NO JURISDICTION

  EXISTS IN THIS COURT." 

THE DISTRICT COURT DISMISSED ON THE FIRST GROUND OF THE MOTION, 252
F.SUPP.  329 (D.C.E.D. PA. 1966), AND THE COURT OF APPEALS AFFIRMED ON
THE SAME GROUND, 378 F.2D 205 (C.A.3D CIR. 1967).  FOR REASONS TO BE
STATED WE HOLD THAT THESE RULINGS ON THE MANDAMUS POINT WERE ERRONEOUS
AND REVERSE THE JUDGMENT BELOW. 

THE COURTS BELOW VIEWED PETITIONER'S COMPLAINT AS IN EFFECT A PLEA
FOR A WRIT OF MANDAMUS AND RELIED ON A LONG LINE OF CASES WHICH HAVE
INTERPRETED THE ALL WRITS ACT /2/  TO DENY POWER TO ISSUE THIS WRIT
WHEN IT IS THE ONLY RELIEF DOUGHT.  A WRIT OF MANDAMUS, SO THESE CASES
HOLD, CAN ISSUE ONLY IN AID OF JURISDICTION ACQUIRED TO GRANT SOME
OTHER FORM OF RELIEF.  SEE 'M'INTIRE V. WOOD, 7 CRANCH 504 (1813);
ROSENBAUM V. BAUER, 120 U.S. 450 (1887); COVINGTON BRIDGE CO. V. HAGER,
203 U.S. 109 (1906).  WE THINK, HOWEVER, THAT THE COURTS BELOW ERRED IN
CONCLUDING THAT THE RELIEF SOUGHT HERE IS "MANDAMUS" WITHIN THE MEANING
OF THESE CASES.  PRACTICALLY ALL THE CASES RELIED ON BY RESPONDENT AND
THE COURTS BELOW INVOLVED MANDAMUS IN ITS ORIGINAL SENSE-- A SUIT
AGAINST A PUBLIC OFFICER TO COMPEL PERFORMANCE OF SOME "MINISTERIAL"
DUTY.  ALTHOUGH THE WORD "MANDAMUS" IS ALSO FREQUENTLY USED TO DESCRIBE
ORDERS THAT COMPEL AFFIRMATIVE ACTION BY PRIVATE PARTIES, THE
CONSIDERATIONS THAT COME INTO PLAY HERE CERTAINLY DIFFER FROM THE
PROBLEMS INVOLVED WHEN THE COURTS SEEK TO COMPEL ACTION BY PUBLIC
OFFICIALS. 

SO FAR AS WE ARE AWARE, THERE IS ONLY ONE CASE IN WHICH THIS COURT
HAS HELD A FEDERAL DISTRICT COURT WITHOUT JURISDICTION TO ISSUE A WRIT
OF MANDAMUS AGAINST A PRIVATE PARTY.  IN KNAPP V. LAKE SHORE R. CO.,
197 U.S. 536 (1905), THE INTERSTATE COMMERCE COMMISSION HAD FILED A
"PETITION FOR MANDAMUS" IN THE FEDERAL COURT, SEEKING TO COMPEL A
RAILROAD COMPANY TO FILE CERTAIN REPORTS AS REQUIRED BY SEC. 20 OF THE
INTERSTATE COMMERCE ACT.  THE COURT APPLIED THE PRINCIPLE OF THE
EARLIER CASES INVOLVING PUBLIC OFFICERS AND HELD THAT MANDAMUS WOULD
NOT LIE AGAINST THE RAILROAD COMPANY DEFENDANT.  BUT THE COURT WAS
CAREFUL TO NOTE THAT RELIEF AGAINST THE RAILROAD MIGHT BE AVAILABLE IN
THE FORM OF A "WRIT OF INJUNCTION OR OTHER PROPER PROCESS, MANDATORY OR
OTHERWISE."  ID., AT 543.  THE DISTINCTION DRAWN BY THE COURT IN KNAPP
BETWEEN MANDAMUS AND A MANDATORY INJUNCTION SEEMS FORMALISTIC IN THE
PRESENT DAY AND AGE, BUT IT MUST BE REMEMBERED THAT KNAPP WAS DECIDED
BEFORE THE SIMPLIFICATION OF THE RULES OF PLEADING AND, MORE
IMPORTANTLY, BEFORE THE MERGER OF LAW AND EQUITY.  SINCE A WRIT OF
MANDAMUS COULD BE ISSUED ONLY IN AN ACTION AT LAW, WHILE AN INJUNCTION,
WHETHER MANDATORY OR PROHIBITIVE, WAS AN EQUITABLE REMEDY, THE
DISTINCTION REFERRED TO IN KNAPP WAS A FAMILIAR ONE IN THE JUDICIAL
SYSTEM OF THE TIME. 

WE NEED NOT NOW DECIDE WHETHER KNAPP PROPERLY EXTENDED THE MANDAMUS
BAR TO SUITS FOR RELIEF AGAINST PRIVATE PARTIES OR EVEN WHETHER THE
DISTINCTION BETWEEN MANDAMUS AND MANDATORY INJUNCTIONS CAN SURVIVE THE
MERGER OF LAW AND EQUITY AND THE SIMPLIFICATION OF THE RULES OF
PLEADING.  IN THE PRESENT CASE PETITIONER DID NOT EVEN FALL INTO THE
TRAP OF USING THE POSSIBLY FATAL LABEL, "MANDAMUS"; INSTEAD HE SIMPLY
ASKED THE COURT "TO ORDER THE DEFENDANT TO PERMIT PLAINTIFF TO EXAMINE
(ITS RECORDS)."  THUS, EVEN UNDER THE BROADEST POSSIBLE READING OF THE
KNAPP DECISION, THE ALL WRITS ACT WOULD NOT DENY A FEDERAL COURT POWER
TO ISSUE THE RELIEF SOUGHT HERE. 

WE FIND NO OTHER PRINCIPLE OF FEDERAL LAW, WHETHER JUDGE-MADE,
STATUTORY, OR CONSTITUTIONAL, WHICH BARS THE GRANTING OF A MANDATORY
REMEDY HERE.  PETITIONER UNDOUBTEDLY HAS A RIGHT, UNDER THE SUBSTANTIVE
LAW OF THE STATE, TO INSPECT THE RECORDS OF THE CORPORATION IN WHICH HE
HOLDS STOCK, AND SINCE HE HAS NO ADEQUATE REMEDY AT LAW, THE FEDERAL
COURT HAS JURISDICTION TO GRANT RELIEF UNDER ITS TRADITIONAL EQUITY
POWER.  WE NEED NOT DECIDE WHETHER THIS IS A CASE WHERE SUCH A FEDERAL
REMEDY CAN BE PROVIDED EVEN IN THE ABSENCE OF A SIMILAR STATE REMEDY,
SKELLY OIL CO. V. PHILLIPS CO., 339 U.S. 667, 674 (1950); CF. GUFFEY V.
SMITH, 237 U.S. 101 (1915), BECAUSE IT IS CLEAR THAT STATE LAW HERE
ALSO PROVIDES FOR ENFORCEMENT OF THE SHAREHOLDER'S RIGHT BY A
COMPULSORY JUDICIAL ORDER.  SEE PA. STAT. ANN., TIT. 12, SEC. 1911
(1967).  WHILE THE STATE LABELS THE RIGHT OF ACTION "MANDAMUS," WHAT
THE PENNSYLVANIA STATUTE ACTUALLY DOES IT TO AUTHORIZE AN ACTION TO
COMPEL PENNSYLVANIA CORPORATIONS TO PERMIT INSPECTION OF THEIR RECORDS
BY THEIR SHAREHOLDERS, AND THE LABEL USED UNDER STATE PRACTICE OF
COURSE HAS NO BEARING ON THE QUESTION WHETHER THE FEDERAL COURTS HAVE
POWER TO GRANT THE KIND OF RELIEF ACTUALLY SOUGHT.  CONSEQUENTLY THE
DISTRICT COURT HERE DOES HAVE POWER TO ISSUE THE PROPER ORDERS TO
ENFORCE PETITIONER'S STATE-GRANTED RIGHT TO INSPECT THE CORPORATE
RECORDS. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1/  "EVERY SHAREHOLDER SHALL HAVE A RIGHT TO EXAMINE, IN PERSON OR
BY AGENT OR ATTORNEY, AT ANY REASONABLE TIME OR TIMES, FOR ANY
REASONABLE PURPOSE, THE SHARE REGISTER, BOOKS OR RECORDS OF ACCOUNT,
AND RECORDS OF THE PROCEEDINGS OF THE SHAREHOLDERS AND DIRECTORS, AND
MAKE EXTRACTS THEREFROM." 

/2/  1 STAT. 81 (1789), AS AMENDED, 28 U.S.C. 1651(A): 

"THE SUPREME COURT AND ALL COURTS ESTABLISHED BY ACT OF CONGRESS MAY
ISSUE ALL WRITS NECESSARY OR APPROPRIATE IN AID OF THEIR RESPECTIVE
JURISDICTIONS AND AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW." 

DAVID FREEMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS RICHARD H. WELS. 

RICHARD P. BROWN, JR., ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON
THE BRIEF WAS RALPH EARLE II.
..END :















CAMERON V. JOHNSON, 390 U.S. 611 


       CAMERON ET AL. V. JOHNSON GOVERNOR OF MISSISSIPPI, ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF MISSISSIPPI. 

        NO. 699.  ARGUED MARCH 5-6, 1968.-- DECIDED APRIL 22,
1968. 


APPELLANTS, TO PROTEST RACIAL VOTING DISCRIMINATION AND ENCOURAGE
NEGRO REGISTRATION, PICKETED THE FORREST COUNTY, MISSISSIPPI, VOTING
REGISTRATION OFFICE IN THE COUNTY COURTHOUSE EACH WEEKDAY FROM JANUARY
23 TO MAY 18, 1964, WALKING IN A "MARCH ROUTE" SET OFF BY THE SHERIFF
WITH BARRICADES TO FACILITATE ACCESS TO THE COURTHOUSE.  ON APRIL 8 THE
LEGISLATURE ENACTED THE MISSISSIPPI ANTI-PICKETING LAW, WHICH, AS
AMENDED, PROHIBITS "PICKETING . . . IN SUCH A MANNER AS TO OBSTRUCT OR
UNREASONABLY INTERFERE WITH FREE INGRESS OR EGRESS TO AND FROM ANY
COUNTY . . . COURTHOUSES.  . . . "  ON APRIL 9 THE SHERIFF READ THE NEW
LAW TO THE PICKETS, ORDERED THEM TO DISPERSE, AND REMOVED THE
BARRICADES.  WHEN THE PICKETS THE NEXT MORNING RESUMED MARCHING ALONG
THE NOW UNMARKED ROUTE THEY WERE ARRESTED FOR VIOLATING THE ANTI
PICKETING STATUTE.  OTHER ARRESTS WERE MADE THAT AFTERNOON, ON APRIL
11, AND ON MAY 18.  ON APRIL 13 APPELLANTS BROUGHT THIS ACTION SEEKING
A JUDGMENT DECLARING THAT THE ANTI-PICKETING LAW IS AN INVALID
REGULATION OF EXPRESSION BECAUSE OF OVERBREADTH AND VAGUENESS AND AN
INJUNCTION AGAINST ITS ENFORCEMENT IN THE PROSECUTIONS AGAINST THEM OR
OTHERWISE, CONTENDING THAT THE PROSECUTIONS WERE SOLELY TO DISCOURAGE
THEIR FREEDOM OF EXPRESSION.  FOLLOWING INITIAL DISMISSAL OF THE
COMPLAINT AND THIS COURT'S REMAND (381 U.S. 741) FOR RECONSIDERATION IN
THE LIGHT OF THE INTERVENING DECISION IN DOMBROWSKI V. PFISTER, 380
U.S. 479, AN EVIDENTIARY HEARING WAS HELD AND THE THREE-JUDGE DISTRICT
COURT AGAIN DISMISSED THE COMPLAINT, HOLDING THAT THE STATUTE WAS NOT
VOID ON ITS FACE AND THAT APPELLANTS HAD FAILED TO SHOW SUFFICIENT
IRREPARABLE INJURY TO WARRANT INJUNCTIVE RELIEF.  HELD: 

1.  THE MISSISSIPPI ANTI-PICKETING LAW IS A VALID REGULATORY
STATUTE; IT IS CLEAR AND PRECISE AND IS NOT OVERLY BROAD SINCE IT DOES
NOT PROHIBIT PICKETING UNLESS IT OBSTRUCTS OR UNREASONABLY INTERFERES
WITH INGRESS AND EGRESS TO OR FROM THE COURTHOUSE.  PP. 615-617. 

2.  THIS COURT'S INDEPENDENT EXAMINATION OF THE RECORD DOES NOT
DISCLOSE THAT THE OFFICIALS ACTED IN BAD FAITH TO HARASS APPELLANTS'
EXERCISE OF THE RIGHT TO FREE EXPRESSION; THAT THE STATUTE WAS ADOPTED
TO HALT APPELLANTS' PICKETING; OR THAT THE STATE HAD NO EXPECTATION OF
SECURING VALID CONVICTIONS.  THIS IS THEREFORE NOT A CASE WHERE A
FEDERAL EQUITY COURT "BY WITHDRAWING THE DETERMINATION OF GUILT FROM
STATE COURTS COULD RIGHTLY AFFORD (APPELLANTS) ANY PROTECTION WHICH
THEY COULD NOT SECURE BY PROMPT TRIAL AND APPEAL PURSUED TO THIS
COURT."  DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157, 164.  DOMBROWSKI,
SUPRA, DISTINGUISHED.  PP. 617-622. 

262 F.SUPP.  873, AFFIRMED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS BROUGHT THIS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF
IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.  THEY
SOUGHT A JUDGMENT DECLARING THAT THE MISSISSIPPI ANTI-PICKETING LAW /1/
IS AN OVERLY BROAD AND VAGUE REGULATION OF EXPRESSION, AND THEREFORE
VOID ON ITS FACE.  THEY ALSO SOUGHT A PERMANENT INJUNCTION RESTRAINING
APPELLEES-- THE GOVERNOR AND OTHER MISSISSIPPI OFFICIALS-- FROM
ENFORCING THE STATUTE IN PENDING OR FUTURE CRIMINAL PROSECUTIONS OR
OTHERWISE, ALLEGING THAT THE THEN PENDING PROSECUTIONS AGAINST THEM FOR
VIOLATING THE STATUTE /2/  WERE PART OF A PLAN OF SELECTIVE ENFORCEMENT
ENGAGED IN BY APPELLEES WITH NO EXPECTATION OF SECURING CONVICTIONS,
BUT SOLELY TO DISCOURAGE APPELLANTS FROM PICKETING TO PROTEST RACIAL
DISCRIMINATION IN VOTER REGISTRATION AND TO ENCOURAGE NEGRO CITIZEN TO
ATTEMPT TO REGISTER TO VOTE. 

A THREE-JUDGE COURT INITIALLY CONSIDERED THE ISSUES ON THE AMENDED
COMPLAINT AND ANSWERS, AND DISMISSED THE COMPLAINT "IN THE EXERCISE OF
ITS SOUND JUDICIAL DISCRETION" AND "IN FURTHERANCE OF THE DOCTRINE OF
ABSTENTION," HAVING CONCLUDED "THAT SUCH EXTRAORDINARY RELIEF IS NOT
DUE OR SUGGESTED IN THIS CASE.  . . . "  244 F.SUPP.  846, 849.  WE
VACATED THE DISMISSAL, 381 U.S. 741, AND REMANDED FOR RECONSIDERATION
IN LIGHT OF OUR INTERVENING DECISION IN DOMBROWSKI V. PFISTER, 380 U.S.
479.  /3/  ON REMAND THE THREE-JUDGE COURT /4/  CONDUCTED AN
EVIDENTIARY HEARING AND AGAIN DISMISSED, THIS TIME WITH PREJUDICE.  262
F.SUPP.  873.  WE NOTED PROBABLE JURISDICTION.  389 U.S. 809.  WE
AFFIRM. 

  I. 

THE MISSISSIPPI ANTI-PICKETING LAW WAS ENACTED BY THE MISSISSIPPI
LEGISLATURE AND SIGNED BY THE GOVERNOR ON APRIL 8, 1964, AND BECAME
EFFECTIVE IMMEDIATELY.  THE FORREST COUNTY VOTING REGISTRATION OFFICE
IS HOUSED IN THE COUNTY COURTHOUSE IN HATTIESBURG.  THE COURTHOUSE IS
SET BACK A DISTANCE FROM THE STREET AND IS REACHED BY SEVERAL PAVED
WALKS SURROUNDING GRASS PLOTS AND A MONUMENT.  ON JANUARY 22, 1964,
CIVIL RIGHTS ORGANIZATIONS FOSTERING INCREASED VOTER REGISTRATION OF
NEGRO CITIZENS STAGED A LARGE DEMONSTRATION ON THE COURTHOUSE SITE. 
THEREAFTER THEY MAINTAINED A PICKET LINE ON THE GROUNDS EVERY DAY
EXCEPT SUNDAY FROM JANUARY 23 UNTIL MAY 18, 1964.  TO FACILITATE ACCESS
TO THE COURTHOUSE THE SHERIFF AT THE OUTSET BLOCKED OFF WITH BARRICADES
A SMALL "MARCH ROUTE" AREA WITHIN THE GROUNDS TO THE RIGHT OF THE MAIN
ENTRANCE TO THE COURTHOUSE, WHERE THE PICKETS, USUALLY FEW IN NUMBER,
WERE ALLOWED TO PICKET UNTIL APRIL 9.  ON APRIL 9, THE DAY FOLLOWING
THE ENACTMENT OF THE ANTI-PICKETING LAW, THE SHERIFF ACCOMPANIED BY
OTHER COUNTY OFFICIALS, READ THE NEW LAW TO THE PICKETS AT THE "MARCH
ROUTE" AND DIRECTED THEM TO DISPERSE, WHICH THEY DID.  THE SHERIFF ALSO
REMOVED THE BARRICADES MARKING THE "MARCH ROUTE."  ON THE MORNING OF
APRIL 10, THE PICKETS, NOW INCREASED TO 35 OR 40 PERSONS, APPEARED AT
THE COURTHOUSE AND RESUMED PICKETING ALONG THE NOW UNMARKED "MARCH
ROUTE."  THE PICKETS WERE ARRESTED AND FORMALLY CHARGED WITH VIOLATION
OF THE ANTI-PICKETING STATUTE.  OTHERS WERE ARRESTED THAT AFTERNOON. 
SEVEN MORE PICKETS WERE ARRESTED AND CHARGED ON THE MORNING OF APRIL
11.  THE COMPLAINT IN THIS ACTION WAS FILED APRIL 13.  PICKETING
NONETHELESS CONTINUED ON THE "MARCH ROUTE" EVERY DAY UNTIL MAY 18, BUT
NO FURTHER ARRESTS WERE MADE UNTIL MAY 18, WHEN NINE PICKETS WERE
ARRESTED AND CHARGED.  ALL PICKETING STOPPED THEREAFTER. 

        II. 

THE DISTRICT COURT'S RESPONSE ON THE REMAND TO RECONSIDER THE CASE
IN LIGHT OF DOMBROWSKI WAS FIRST TO RENDER A DECLARATORY JUDGMENT, CF.
ZWICKLER V. KOOTA, 389 U.S. 241, /5/  THAT THE STATUTE WAS NOT VOID ON
ITS FACE, REJECTING APPELLANTS' CONTENTION THAT IT IS SO BROAD, VAGUE,
INDEFINITE, AND LACKING IN DEFINITELY ASCERTAINABLE STANDARDS AS TO BE
UNCONSTITUTIONAL ON ITS FACE.  WE AGREE WITH THE DISTRICT COURT. 

APPELLANTS ADVANCE A TWO-PRONGED ARGUMENT.  FIRST, THEY ARGUE THAT
THE STATUTE FORBIDS PICKETING IN TERMS "SO VAGUE THAT MEN OF COMMON
INTELLIGENCE MUST NECESSARILY AGREE AT ITS MEANING AND DIFFER AS TO ITS
APPLICATION.  . . . "  CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S.
385, 391.  /6/  BUT THE STATUTE PROHIBITS ONLY "PICKETING . . . IN SUCH
A MANNER AS TO OBSTRUCT OR UNREASONABLY INTERFERE WITH FREE INGRESS OR
EGRESS TO AND FROM ANY . . . COUNTY . . . COURTHOUSES.  . . . "  THE
TERMS "OBSTRUCT" AND "UNREASONABLY INTERFERE" PLAINLY REQUIRE NO
"GUESSING) AT (THEIR) MEANING."  APPELLANTS FOCUS ON THE WORD
"UNREASONABLY."  /7/  IT IS A WIDELY USED AND WELL UNDERSTOOD WORD AND
CLEARLY SO WHEN JUXTAPOSED WITH "OBSTRUCT" AND "INTERFERE."  WE
CONCLUDE THAT THE STATUTE CLEARLY AND PRECISELY DELINEATES ITS REACH IN
WORDS OF COMMON UNDERSTANDING.  /8/  IT IS "A PRECISE AND NARROWLY
DRAWN REGULATORY STATUTE EVINCING A LEGISLATIVE JUDGMENT THAT CERTAIN
SPECIFIC CONDUCT BE . . . PROSCRIBED."  EDWARDS V. SOUTH CAROLINA, 372
U.S. 229, 236. 

THE SECOND PRONG OF APPELLANTS' ARGUMENT IS THAT THE STATUTE, EVEN
ASSUMING THAT IT IS "LACKING NEITHER CLARITY NOR PRECISION, IS VOID FOR
'OVERBREADTH,' THAT IS, THAT IT OFFENDS THE CONSTITUTIONAL PRINCIPLE
THAT 'A GOVERNMENTAL PURPOSE TO CONTROL OR PREVENT ACTIVITIES
CONSTITUTIONALLY SUBJECT TO STATE REGULATION MAY NOT BE ACHIEVED BY
MEANS WHICH SWEEP UNNECESSARILY BROADLY AND THEREBY INVADE THE AREA OF
PROTECTED FREEDOMS.'"  ZWICKLER V. KOOTA, SUPRA, AT 250.  /9/  THE
ARGUMENT CENTERS ON THE FACT THAT THE PROSCRIPTION OF THE STATUTE
EMBRACES PICKETING EMPLOYED AS A VEHICLE FOR CONSTITUTIONALLY PROTECTED
PROTEST.  BUT "PICKETING AND PARADING (ARE) SUBJECT TO REGULATION EVEN
THOUGH INTERTWINED WITH EXPRESSION AND ASSOCIATION," COX V. LOUISIANA,
379 U.S. 559, 563, /10/  AND THIS STATUTE DOES NOT PROHIBIT PICKETING
SO INTERTWINED UNLESS ENGAGED IN A MANNER WHICH OBSTRUCTS OR
UNREASONABLY INTERFERES WITH INGRESS OR EGRESS TO OR FROM THE
COURTHOUSE.  PROHIBITION OF CONDUCT WHICH HAS THIS EFFECT DOES NOT
ABRIDGE CONSTITUTIONAL LIBERTY "SINCE SUCH ACTIVITY BEARS NO NECESSARY
RELATIONSHIP TO THE FREEDOM TO . . . DISTRIBUTE INFORMATION OR
OPINION."  SCHNEIDER V. STATE, 308 U.S. 147, 161.  THE STATUTE IS
THEREFORE "A VALID LAW DEALING WITH CONDUCT SUBJECT TO REGULATION SO AS
TO VINDICATE IMPORTANT INTERESTS OF SOCIETY AND . . . THE FACT THAT
FREE SPEECH IS INTERMINGLED WITH SUCH CONDUCT DOES NOT BRING WITH IT
CONSTITUTIONAL PROTECTION."  COX V. LOUISIANA, SUPRA, AT 564. 

        III. 

THE DISTRICT COURT'S FURTHER RESPONSE ON REMAND TO RECONSIDER THE
CASE IN LIGHT OF DOMBROWSKI WAS TO DENY INJUNCTIVE RELIEF, AFTER AN
EVIDENTIARY HEARING, ON FINDINGS THAT APPELLANTS FAILED TO SHOW
SUFFICIENT IRREPARABLE INJURY TO JUSTIFY SUCH RELIEF.  APPELLANTS ARGUE
IN THIS COURT THAT THE RECORD DISCLOSES SUFFICIENT IRREPARABLE INJURY
TO ENTITLE THEM TO THE INJUNCTION SOUGHT, EVEN IF THE STATUTE IS
CONSTITUTIONAL ON ITS FACE. 

DOMBROWSKI RECOGNIZED, 380 U.S.,AT 483-485, THE CONTINUING VALIDITY
OF THE MAXIM THAT A FEDERAL DISTRICT COURT SHOULD BE SLOW TO ACT "WHERE
ITS POWERS ARE INVOKED TO INTERFERE BY INJUNCTION WITH THREATENED
CRIMINAL PROSECUTIONS IN A STATE COURT," DOUGLAS V. CITY OF JEANNETTE,
319 U.S. 157, 162; SEE SWICKLER V. KOOTA, SUPRA, AT 253.  FEDERAL
INTERFERENCE WITH A STATE'S GOOD-FAITH ADMINISTRATION OF ITS CRIMINAL
LAWS "IS PECULIARLY INCONSISTENT WITH OUR FEDERAL FRAME WORK" AND A
SHOWING OF "SPECIAL CIRCUMSTANCES" BEYOND THE INJURY INCIDENTAL TO
EVERY PROCEEDING BROUGHT LAWFULLY AND IN GOOD FAITH IS REQUISITE TO A
FINDING OF IRREPARABLE INJURY SUFFICIENT TO JUSTIFY THE EXTRAORDINARY
REMEDY OF AN INJUNCTION.  380 U.S.,AT 484.  WE FOUND SUCH "SPECIAL
CIRCUMSTANCES" IN DOMBROWSKI.  THE PROSECUTIONS THERE BEGUN AND
THREATENED WERE NOT, AS HERE, FOR VIOLATION OF A STATUTE NARROWLY
REGULATING CONDUCT WHICH IS INTERTWINED WITH EXPRESSION, BUT FOR
ALLEGED VIOLATIONS OF VARIOUS SECTIONS OF EXCESSIVELY BROAD LOUISIANA
STATUTES REGULATING EXPRESSION ITSELF-- THE LOUISIANA SUBVERSIVE
ACTIVITIES AND COMMUNIST CONTROL LAW AND THE COMMUNIST PROPAGANDA
CONTROL LAW.  THESE STATUES WERE CHALLENGED AS OVERLY BROAD AND VAGUE
REGULATIONS OF EXPRESSION.  DESPITE STATE COURT ACTIONS QUASHING ARREST
WARRANTS AND SUPPRESSING EVIDENCE PURPORTEDLY SEIZED IN ENFORCING THEM,
LOUISIANA OFFICIALS CONTINUED TO THREATEN PROSECUTIONS OF DOMBROWSKI
AND HIS CO-APPELLANTS UNDER THEM.  IN THAT CONTEXT, WE HELD THAT A CASE
OF "THE THREAT OF IRREPARABLE INJURY REQUIRED BY TRADITIONAL DOCTRINES
OF EQUITY" WAS MADE OUT.  380 U.S.,AT 490.  WE HELD FURTHER THAT THE
ALLEGED VIOLATIONS OF WHICH INDICTMENTS HAD BEEN OBTAINED WHILE THE
CASE WAS PENDING IN THE FEDERAL COURT) WERE PATENTLY UNCONSTITUTIONAL
ON THEIR FACE, AND REMANDED WITH DIRECTION TO FRAME AN APPROPRIATE
INJUNCTION RESTRAINING PROSECUTION OF THE INDICTMENTS. 

IN SHORT, WE VIEWED DOMBROWSKI TO BE A CASE PRESENTING A SITUATION
OF THE "IMPROPRIETY OF (STATE OFFICIALS) INVOKING THE STATUTE IN BAD
FAITH TO IMPOSE CONTINUING HARASSMENT IN ORDER TO DISCOURAGE
APPELLANTS' ACTIVITIES.  . . . "  380 U.S.,AT 490.  IN CONTRAST, THE
DISTRICT COURT EXPRESSLY FOUND IN THIS CASE "THAT THERE WAS NO
HARASSMENT, INTIMIDATION, OR OPPRESSION OF THESE COMPLAINANTS IN THEIR
EFFORTS TO EXERCISE THEIR CONSTITUTIONAL RIGHTS, BUT THEY WERE ARRESTED
AND THEY ARE BEING PROSECUTED IN GOOD FAITH FOR THEIR DELIBERATE
VIOLATION OF THAT PART OF THE STATUTE WHICH DENOUNCES INTERFERENCE WITH
THE ORDERLY USE OF COURTHOUSE FACILITIES BY ALL CITIZENS ALIKE."  262
F.SUPP.,AT 876, SEE ALSO 244 F.SUPP.,AT 848-849.  WE CANNOT SAY FROM
OUR INDEPENDENT EXAMINATION OF THE RECORD THAT THE DISTRICT COURT ERRED
IN DENYING INJUNCTIVE RELIEF. 

ANY CHILLING EFFECT ON THE PICKETING AS A FORM OF PROTEST AND
EXPRESSION THAT FLOWS FROM GOOD-FAITH ENFORCEMENT OF THIS VALID STATUTE
WOULD NOT, OF COURSE, CONSTITUTE THAT ENFORCEMENT AN IMPERMISSIBLE
INVASION OF PROTECTED FREEDOMS.  COX V. LOUISIANA, SUPRA, AT 564. 
APPELLANTS' CASE THAT THERE ARE "SPECIAL CIRCUMSTANCES" ESTABLISHING
IRREPARABLE INJURY SUFFICIENT TO JUSTIFY FEDERAL INTERVENTION MUST
THEREFORE COME DOWN TO THE PROPOSITION THAT THE STATUTE WAS ENFORCED
AGAINST THEM, NOT BECAUSE THE MISSISSIPPI OFFICIALS IN GOOD FAITH
REGARDED THE PICKETING AS VIOLATING THE STATUTE, BUT IN BAD FAITH AS
HARASSING APPELLANTS' EXERCISE OF PROTECTED EXPRESSION WITH NO
INTENTION OF PRESSING THE CHARGES OR WITH NO EXPECTATION OF OBTAINING
CONVICTIONS, KNOWING THAT APPELLANTS' CONDUCT DID NOT VIOLATE THE
STATUTE.  WE AGREE WITH THE DISTRICT COURT THAT THE RECORD DOES NOT
ESTABLISH THE BAD FAITH CHARGED.  THIS IS THEREFORE NOT A CASE IN WHICH
" . . . A FEDERAL COURT OF EQUITY BY WITHDRAWING THE DETERMINATION OF
GUILT FROM THE STATE COURTS COULD RIGHTLY AFFORD (APPELLANTS) ANY
PROTECTION WHICH THEY COULD NOT SECURE BY PROMPT TRIAL AND APPEAL
PURSUED TO THIS COURT."  DOUGLAS V. CITY OF JEANNETTE, SUPRA, AT 164. 
WE HAVE NOT HESITATED ON DIRECT REVIEW TO STRIKE DOWN APPLICATIONS OF
CONSTITUTIONAL STATUTES WHICH WE HAVE FOUND TO BE UNCONSTITUTIONALLY
APPLIED TO SUPPRESS PROTECTED FREEDOMS.  SEE COX V. LOUISIANA, SUPRA;
WRIGHT V. GEORGIA, 373 U.S. 284; EDWARDS V. SOUTH CAROLINA, SUPRA. 

APPELLANTS ARGUE THAT THE ADOPTION OF THE STATUTE IN THE CONTEXT OF
THE PICKETING AT THE COURTHOUSE, AND ITS IMMEDIATE ENFORCEMENT BY THE
ARRESTS ON APRIL 10 AND 11, PROVIDE COMPELLING EVIDENCE THAT THE
STATUTE WAS CONCEIVED AND ENFORCED SOLELY TO BRING A HALT TO THE
PICKETING.  APPELLANTS BUTTRESS THEIR ARGUMENT BY CHARACTERIZING AS
"INDEFENSIBLE ENTRAPMENT" THE ENFORCEMENT OF THE STATUTE ON APRIL 10
AGAINST PICKETING CONDUCT WHICH COUNTY OFFICIALS HAD PERMITTED FOR
ALMOST THREE MONTHS ALONG THE "MARCH ROUTE" MARKED OUT BY THE OFFICIALS
THEMSELVES.  THIS ARGUMENT NECESSARILY IMPLIES THE SUGGESTION THAT HAD
THE STATUTE BEEN LAW WHEN THE PCIKETING STARTED IN JANUARY IT WOULD NOT
HAVE BEEN ENFORCED.  THERE IS NO SUPPORT WHATEVER IN THE RECORD FOR
THAT PROPOSITION.  THE MORE REASONABLE INFERENCE IS THAT THE
AUTHORITIES BELIEVED THAT UNTIL ENACTMENT OF THE STATUTE ON APRIL 8
THEY HAD NO CHOICE BUT TO ALLOW THE PICKETING.  IN ANY EVENT, UPON THE
ADOPTION OF THE LAW, IT BECAME THE DUTY OF THE AUTHORITIES IN GOOD
FAITH TO ENFORCE IT, AND TO PROSECUTE FOR PICKETING THAT VIOLATED THAT
LAW.  SIMILARLY, INSOFAR AS APPELLANTS ARGUE THAT SELECTIVE ENFORCEMENT
WAS SHOWN BY THE FAILURE TO ARREST THOSE WHO WERE PICKETING FROM APRIL
11 TO MAY 18, THE SHORT ANSWER IS THAT IT IS AT LEAST AS REASONABLE TO
INFER FROM THE RECORD THAT THE AUTHORITIES DID NOT REGARD THEIR CONDUCT
IN THAT PERIOD AS VIOLATING THE STATUTE.  INDEED, THE FACT THAT NO
ARRESTS WERE MADE OVER THAT FIVE-WEEK PERIOD IS ITSELF SOME SUPPORT FOR
THE DISTRICT COURT'S REJECTION OF APPELLANTS' PRIMARY CONTENTION THAT
APPELLEES USED THE STATUE IN BAD FAITH TO DISCOURAGE THE PICKETS FROM
PICKETING TO FOSTER INCREASED VOTER REGISTRATION OF NEGRO CITIZENS. 

NOR ARE WE PERSUADED BY THE ARGUMENT THAT, BECAUSE THE EVIDENCE
ADDUCED AT THE HEARING OF THE PICKETS' CONDUCT THROUGHOUT THE PERIOD
WOULD NOT BE SUFFICIENT, IN THE VIEW OF APPELLANTS, TO SUSTAIN
CONVICTIONS ON A CRIMINAL TRIAL, IT WAS DEMONSTRATED THAT THE STATE HAD
NO EXPECTATION OF SECURING VALID CONVICTIONS.  DOMBROWSKI V. PFISTER,
SUPRA, AT 490.  THIS ARGUMENT MISTAKENLY SUPPOSES THAT "SPECIAL
CIRCUMSTANCES" JUSTIFYING INJUNCTIVE RELIEF APPEAR IF IT IS NOT SHOWN
THAT THE STATUE WAS IN FACT VIOLATED.  BUT THE QUESTION FOR THE
DISTRICT COURT WAS NOT THE GUILT OR INNOCENCE OF THE PERSONS CHARGED;
THE QUESTION WAS WHETHER THE STATUTE WAS ENFORCED AGAINST THEM WITH NO
EXPECTATION OF CONVICTIONS BUT ONLY TO DISCOURAGE EXERCISE OF PROTECTED
RIGHTS.  THE MERE POSSIBILITY OF ERRONEOUS APPLICATION OF THE STATUTE
DOES NOT AMOUNT "TO THE IRREPARABLE INJURY NECESSARY TO JUSTIFY A
DISRUPTION OF ORDERLY STATE PROCEEDINGS."  DOMBROWSKI V. PFISTER,
SUPRA, AT 485.  THE ISSUE OF GUILT OR INNOCENCE IS FOR THE STATE COURT
AT THE CRIMINAL TRIAL; THE STATE WAS NOT REQUIRED TO PROVE APPELLANTS
GUILTY IN THE FEDERAL PROCEEDING TO ESCAPE THE FINDING THAT THE STATE
HAD NO EXPECTATION OF SECURING VALID CONVICTIONS.  /11/  APPELLANTS SAY
THAT THE PICKETING WAS NONOBSTRUCTIVE, BUT THE STATE CLAIMS QUITE THE
CONTRARY, AND THE RECORD IS NOT TOTALLY DEVOID OF SUPPORT FOR THE
STATE'S CLAIM. 

APPELLANTS ARGUE THAT SELECTIVE ENFORCEMENT WAS SHOWN BY THE
EVIDENCE THAT SUBSEQUENT TO THE ARRESTS OF THE PICKETS PARADES WERE
HELD IN HATTIESBURG DURING WHICH THE STREETS OF THE DOWNTOWN AREA,
INCLUDING THE LOCALE OF THE COURTHOUSE, WERE CORDONED OFF DURING
DAYTIME BUSINESS HOURS AND THE SIDEWALKS WERE OBSTRUCTED BY CROWDS OF
SPECTATORS DURING THE PARADES.  BUT THIS STATUTE IS NOT AIMED AT
OBSTRUCTIONS RESULTING FROM PARADES ON THE CITY STREETS.  ALL THAT IT
PROHIBITS IS THE OBSTRUCTION OF OR UNREASONABLE INTERFERENCE WITH
INGRESS AND EGRESS TO AND FROM PUBLIC BUILDINGS, INCLUDING COURTHOUSES,
AND WITH TRAFFIC ON THE STREETS OR SIDEWALKS ADJACENT TO THOSE
BUILDINGS.  THERE WAS NO EVIDENCE OF CONDUCT OF THAT NATURE AT ANY
OTHER PLACE WHICH WOULD HAVE BROUGHT THE STATUTE INTO PLAY, LET ALONE
EVIDENCE THAT THE AUTHORITIES ALLOWED SUCH CONDUCT WITHOUT ENFORCING
THE STATUTE. 

              AFFIRMED. 

/1/  THE STATUTE AS AMENDED IS CODIFIED AS MISS.  CODE ANN. SEC.
2318.5 (SUPP. 1966), AND IN PERTINENT PART PROVIDES: 

"1.  IT SHALL BE UNLAWFUL FOR ANY PERSON, SINGLY OR IN CONCERT WITH
OTHERS, TO ENGAGE IN PICKETING OR MASS DEMONSTRATIONS IN SUCH A MANNER
AS TO OBSTRUCT OR UNREASONABLY INTERFERE WITH FREE INGRESS OR EGRESS TO
AND FROM ANY PUBLIC PREMISES, STATE PROPERTY, COUNTY OR MUNICIPAL
COURTHOUSES, CITY HALLS, OFFICE BUILDINGS, JAILS, OR OTHER PUBLIC
BUILDINGS OR PROPERTY OWNED BY THE STATE OF MISSISSIPPI, OR ANY COUNTY
OR MUNICIPAL GOVERNMENT LOCATED THEREIN, OR WITH THE TRANSACTION OF
PUBLIC BUSINESS OR ADMINISTRATION OF JUSTICE THEREIN OR THEREON
CONDUCTED OR SO AS TO OBSTRUCT OR UNREASONABLY INTERFERE WITH FREE USE
OF PUBLIC STREETS, SIDEWALKS, OR OTHER PUBLIC WAYS ADJACENT OR
CONTIGUOUS THERETO. 

"2.  ANY PERSON GUILTY OF VIOLATING THIS ACT SHALL BE DEEMED GUILTY
OF A MISDEMEANOR AND, UPON CONVICTION THEREOF, SHALL BE FINED NOT MORE
THAN FIVE HUNDRED DOLLARS ($500.00), OR IMPRISONED IN JAIL NOT MORE
THAN SIX (6) MONTHS, OR BOTH SUCH FINE AND IMPRISONMENT." 

/2/  ALL OF THE PROSECUTIONS WERE REMOVED UNDER 28 U.S.C. 1443 TO
THE FEDERAL COURTS.  FOLLOWING OUR OPINION IN CITY OF GREENWOOD V.
PEACOCK, 384 U.S. 808, THE CASES WERE REMANDED TO THE STATE COURTS. 
HARTFIELD V. MISSISSIPPI, 363 F.2D 869.  THEY WERE SUBSEQUENTLY STAYED
BY THE DISTRICT COURT AND ARE PRESENTLY STAYED PENDING OUR DECISION ON
THIS APPEAL. 

/3/  OUR PER CURIAM STATED, 381 U.S. 741-742:  "ON REMAND, THE
DISTRICT COURT SHOULD FIRST CONSIDER WHETHER 28 U.S.C. 2283 (1958 ED.) 
BARS A FEDERAL INJUNCTION IN THIS CASE, SEE 380 U.S.,AT 484, N. 2.  IF
SEC. 2283 IS NOT A BAR, THE COURT SHOULD THEN DETERMINE WHETHER RELIEF
IS PROPER IN LIGHT OF THE CRITERIA SET FORTH IN DOMBROWSKI."  THE
DISTRICT COURT HELD THAT SEC. 2283 PROHIBITED THE COURT FROM ENJOINING
OR ABATING THE CRIMINAL PROSECUTIONS INITIATED AGAINST THE APPELLANTS
PRIOR TO THE FILING OF THE SUIT ON APRIL 13, 1964, AND FURTHER, THAT 42
U.S.C. 1983 CREATES NO EXCEPTION TO SEC. 2283.  262 F.SUPP.  873, 878. 
WE FIND IT UNNECESSARY TO RESOLVE EITHER QUESTION AND INTIMATE NO VIEW
WHATEVER UPON THE CORRECTNESS OF THE HOLDING OF THE DISTRICT COURT. 

/4/  THE THREE-JUDGE DISTRICT COURT WHICH RENDERED THE INITIAL
DECISION CONSISTED OF CIRCUIT JUDGE RIVES AND DISTRICT COURT JUDGES
MIZE AND COX.  UPON THE DEATH OF JUDGE MIZE, CIRCUIT JUDGE COLEMAN WAS
DESIGNATED TO SERVE IN HIS STEAD.  CIRCUIT JUDGE RIVES DISSENTED FROM
HIS COLLEAGUES ON BOTH OCCASIONS.  SEE 244 F.SUPP.,AT 856, 262
F.SUPP.,AT 881. 

/5/  IN THE INTIIAL DECISION THE DISTRICT COURT DECLINED TO PASS ON
THE STATUTE'S CONSTITUTIONALTIY, HOLDING THAT THE CASE WAS ONE FOR
ABSTENTION.  244 F.SUPP.,AT 855-856.  IN ZWICKLER WE HELD THAT IT WAS
ERROR IN THE ABSENCE OF SPECIAL CIRCUMSTANCES TO ABSTAIN AND REFUSE TO
RENDER A DECLARATORY JUDGMENT AND, FURTHER, SAID, AT 254:  "A REQUEST
FOR A DECLARATORY JUDGMENT THAT A STATE STATUTE IS OVERBROAD ON ITS
FACE MUST BE CONSIDERED INDEPENDENTLY OF ANY REQUEST FOR INJUNCTIVE
RELIEF AGAINST THE ENFORCEMENT OF THAT STATUTE.  WE HOLD THAT A FEDERAL
DISTRICT COURT HAS THE DUTY TO DECIDE THE APPROPRIATENESS AND THE
MERITS OF THE DECLARATORY REQUEST IRRESPECTIVE OF ITS CONCLUSION AS TO
THE PROPRIETY OF THE ISSUANCE OF THE INJUNCTION." 

/6/  SEE ASHTON V. KENTUCKY, 384 U.S. 195, 200-201. 

/7/  THE APPELLANTS SUGGEST THAT THE AMENDMENT TO THE STATUTE WHICH
TWICE INSERTS THE WORD "UNREASONABLY" "RAISES NEW QUESTIONS OF
UNCONSTITUTIONAL VAGUENESS AND OVERBREADTH NOT BEFORE THIS COURT ON THE
ORIGINAL APPEAL."  THE DISTRICT COURT REJECTED THIS ARGUMENT, 262
F.SUPP.,AT 879:  "PLAINTIFFS . . . ARGUE THAT THE ADDITION OF THE WORD
'UNREASONABLY' TO THE STATUTE MADE IT EVEN MORE VAGUE AND INDEFINITE,
BUT WE DISAGREE.  THE WORD 'UNREASONABLE' SEEMS TO HAVE BEEN WELL
UNDERSTOOD BY THE FOUNDERS OF THE REPUBLIC WHEN THEY USED IT IN THE
FOURTH AMENDMENT, WHERE IT REMAINS, AND IS ENFORCED, AS IT SHOULD BE,
TO THIS DAY."  JUDGE RIVES, IN DISSENT, 262 F.SUPP.,AT 897, N. 58,
FOUND THAT THE ADDITION OF THE WORD TO THE STATUTE DID NOT ALTER ITS
SCOPE.  "ON THE CONTRARY, THE DEFENDANTS ARGUE THAT THE STATUTE SHOULD
ALWAYS HAVE BEEN INTERPRETED AS IF THIS WORD WERE PRESENT AND THAT THE
PERSONS ARRESTED DID UNREASONABLY BLOCK THE COURT HOUSE." 

/8/  SEE CAMERON V. JOHNSON, 381 U.S.,AT 749-750 (DISSENTING OPINION
OF BLACK, J.); ID., AT 757 (DISSENTING OPINION OF WHITE, J.). 

/9/  SEE NAACP V. ALABAMA, 377 U.S. 288, 307; SEE ALSO SWICKLER V.
KOOTA, 389 U.S. 241, 249-250; KEYISHIAN V. BOARD OF REGENTS, 385 U.S.
589, 609; APTHEKER V. SCRETARY OF STATE, 378 U.S. 500, 508-509; NAACP
V. BUTTON, 371 U.S. 415, 438; SHELTON V. TUCKER, 364 U.S. 479, 488;
CANTWELL V. CONNECTICUT, 310 U.S. 296, 304-307; SCHNEIDER V. STATE, 308
U.S. 147, 161, 165. 

/10/  SEE SCHNEIDER V. STATE, 308 U.S. 147, 161; GIBONEY V. EMPIRE
STORAGE & ICE CO., 336 U.S. 490, 499-500; NAACP V. ALABAMA, 357 U.S.
449, 460-462; NAACP V. BUTTON, 371 U.S. 415, 438-439. 

/11/  SEE 244 F.SUPP.,AT 849:  "(THIS COURT INDICATES NOTHING AS TO
THE GUILT OR INNOCENCE OF THE PLAINTIFFS . . . "; 262 F.SUPP.,AT 876:
"WE DO NOT SIT IN THIS PROCEEDING TO DETERMINE THE GUILT OR INNOCENCE
OF THE PLAINTIFFS.  . . . " 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

IN MY OPINION, DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965), REQUIRES
THAT THE DECISION OF THE COURT BELOW BE REVERSED. 

I AGREE THAT THE STATUTE IN QUESTION IS NOT "UNCONSTITUTIONAL ON ITS
FACE."  BUT THAT CONCLUSION IS NOT THE END OF THE MATTER.  DOMBROWSKI
STANDS FOR THE PROPOSITION THAT "THE ABSTENTION DOCTRINE IS
INAPPROPRIATE FOR CASES . . . WHERE . . . STATUTES ARE JUSTIFIABLY
ATTACKED ON THEIR FACE AS ABRIDGING FREE EXPRESSION, OR AS APPLIED FOR
THE PURPOSE OF DISCOURAGING PROTECTED ACTIVITIES."  380 U.S.,AT 489
490. 

DOMBROWSKI ESTABLISHES THAT THE FEDERAL COURTS WILL GRANT RELIEF
WHEN "DEFENSE OF THE STATE'S CRIMINAL PROSECUTION WILL NOT ASSURE
ADEQUATE VINDICATION" OF FIRST AMENDMENT RIGHTS.  380 U.S.,AT 485. 
ACCORDING TO DOMBROWSKI, THIS CONDITION EXISTS WHEN THE STATE HAS
INVOKED THE CRIMINAL LAW IN BAD FAITH AND FOR THE PURPOSE OF HARASSING
AND DISRUPTING THE EXERCISE OF THOSE RIGHTS.  FEDERAL COURTS ARE
AVAILABLE TO ENJOIN THE INVOCATION OF STATE CRIMINAL PROCESS WHEN THAT
PROCESS IS ABUSIVELY INVOKED "WITHOUT ANY HOPE OF ULTIMATE SUCCESS, BUT
ONLY TO DISCOURAGE" THE ASSERTION OF CONSTITUTIONALLY PROTECTED
RIGHTS.  380 U.S.,AT 490.  SEE ALSO CITY OF GREENWOOD V. PEACOCK, 384
U.S. 808, 829 (1966). 

DOMBROWSKI IS STRONG MEDICINE.  IT INVOLVES INTERPOSITION OF FEDERAL
POWER AT THE THRESHOLD STAGE OF THE ADMINISTRATION OF STATE CRIMINAL
LAWS.  DOMBROWSKI'S REMEDY IS JUSTIFIED ONLY WHEN FIRST AMENDMENT
RIGHTS, WHICH ARE BASIC TO OUR FREEDOM, ARE IMPERILED BY CALCULATED,
DELIBERATE STATE ASSAULT.  AND THOSE WHO SEEK FEDERAL INTERVENTION BEAR
A HEAVY BURDEN TO SHOW THAT THE STATE, IN PROSECUTING THEM, IS NOT
ENGAGED IN USE OF ITS POLICE POWER FOR LEGITIMATE ENDS, BUT IS
DELIBERATELY INVOKING IT TO HARASS OR SUPPRESS FIRST AMENDMENT RIGHTS. 
DOMBROWSKI SHOULD NEVER BE INVOKED WHEN THE STATE IS, IN SUBSTANCE AND
TRUTH, ENGAGED IN THE ENFORCEMENT OF VALID CRIMINAL LAWS.  ORDINARILY,
THE PRESUMPTION THAT THE STATE'S MOTIVE WAS LAW ENFORCEMENT AND NOT
INTERFERENCE WITH SPEECH OR ASSEMBLY WILL CARRY THE DAY. 

I APPROACH THE PROBLEM OF THE PRESENT CASE WITH THIS MODEST VIEW OF
DOMBROWSKI'S SCOPE.  EVEN SO, IN MY JUDGMENT, DOMBROWSKI COMMANDS
REVERSAL OF THE JUDGMENT IN THIS CASE.  DOMBROWSKI MEANS PRECIOUS
LITTLE, I SUBMIT, IF THE PRESUMPTION SUPPORTING STATE ACTION IS NOT
OVERCOME BY FACTS SUCH AS THOSE BEFORE US NOW. 

ON JANUARY 22, 1964, CIVIL RIGHTS ORGANIZATIONS WHOSE MEMBERS AND
ADHERENTS ARE REPRESENTED IN THIS CLASS ACTION BY APPELLANTS BEGAN TO
PICKET THE FORREST COUNTY VOTING REGISTRATION OFFICE, WHICH IS LOCATED
IN THE HATTIESBURG, MISSISSIPPI, COURTHOUSE.  THE PICKETING WAS
DESIGNED TO PROTEST RACIAL DISCRIMINATION IN VOTER REGISTRATION AND TO
ENCOURAGE NEGRO CITIZENS OF THE COUNTY TO REGISTER.  ON THAT DAY, THERE
WAS A LARGE CROWD OF SEVERAL HUNDRED PERSONS GATHERED NEAR THE
COURTHOUSE.  THE PICKETING CONTINUED FROM JANUARY 22 UNTIL MAY 18,
EVERY DAY EXCEPT SUNDAY.  AFTER THE INITIAL PERIOD CULMINATING IN THE
FIRST ARRESTS ON APRIL 10, THE NUMBER OF PICKETS VARIED FROM SEVEN TO
10. 

SHORTLY AFTER THE FIRST DAY OF PICKETING, THE SHERIFF MARKED OUT A
"MARCH ROUTE."  THE PICKETS THEREAFTER CONFINED THEMSELVES TO THIS
ROUTE.  THEY WERE ALLOWED TO CONTINUE PICKETING UNMOLESTED.  THE MARCH
ROUTE NEVER TOOK THE PICKETS DIRECTLY IN FRONT OF ANY ENTRANCE TO THE
COURTHOUSE.  THE PICKETING WAS, BY ALL ACCOUNTS, PEACEFUL AND WITHOUT
INCIDENT.  THE PICKETS AT FIRST SANG, CHANTED, PREACHED, AND PRAYED,
BUT WITHIN A FEW DAYS AND BEGINNING WELL BEFORE THE TIME OF THE
ARRESTS, THEY CONFINED THEMSELVES TO A SLOW, QUIET WALK.  THIS
CONTINUED THROUGHOUT THE RELEVANT DATES. 

THE EVIDENCE IN THIS RECORD THAT THE PICKETING INTERFERED WITH OR
EVEN INCONVENIENCED PEDESTRIANS IS NEGLIBIBLE.  /1/  THERE IS NO
EVIDENCE THAT ACCESS TO THE COURTHOUSE WAS ACTUALLY OBSTRUCTED.  IF THE
PICKETS HAD BEEN DISORDERLY OR HAD OBSTRUCTED USE OF THE SIDEWALKS OR
ACCESS TO THE COURTHOUSE, THE POLICE, SUBJECT TO CONSTITUTIONAL
LIMITATIONS, COULD HAVE ARRESTED THEM UNDER VARIOUS STATUTES.  /2/  BUT
THE RECORD IS CLEAR:  THE PICKETS CONFINED THEMSELVES TO THE LINE OF
MARCH DESIGNATED BY THE POLICE THEMSELVES, AND THEY WERE QUIET AND
ORDERLY.  THEY REMAINED AT SOME CONSIDERABLE DISTANCE FROM AT LEAST
THREE ENTRANCES TO THE COURTHOUSE, INCLUDING THE PRINCIPAL ONE AT THE
TOP OF THE COURTHOUSE STEPS.  THERE WAS NO REASON FOR THEIR ARREST. 
THEY WERE OBEYING, NOT DISOBEYING, THE POLICE. 

FOR ABOUT TWO AND A HALF MONTHS, FROM JANUARY 22, 1964, TO APRIL 10,
1964, THE POLICE STOOD BY.  THE PICKETS MARCHED ON THE PRESCRIBED
ROUTE.  NOBODY HAD ANY DIFFICULTY OF PASSAGE OR OF ACCESS TO THE PUBLIC
BUILDING. 

THEN ON APRIL 8, 1964, THE MISSISSIPPI LEGISLATURE ENACTED A LAW
WHICH, I BELIEVE, MAY FAIRLY BE CHARACTERIZED AS A DIRECTIVE TO THE
POLICY THAT THE PICKETING IN HATTIESBURG SHOULD BE STOPPED--
FORTHWITH.  THIS LAW, AS AMENDED, FORBADE "PICKETING . . . IN SUCH A
MANNER AS TO OBSTRUCT OR UNREASONABLY INTERFERE WITH FREE INGRESS OR
EGRESS TO AND FROM ANY . . . COURTHOUSES . . . . " 

THE LAW WAS SIGNED BY THE GOVERNOR ON THE SAME DAY IT WAS PASSED BY
THE STATE LEGISLATURE, AND DELIVERED BY MESSENGER TO WAITING LAW
ENFORCEMENT OFFICIALS IN HATTIESBURG ON THE FOLLOWING DAY.  AS SOON AS
THE LAW WAS BROUGHT TO THOSE OFFICIALS ON APRIL 9, THEY READ IT ALOUD
TO THE PICKETS AND ASKED THEM TO DISPERSE.  THERE WAS THEN ONLY A SMALL
GROUP OF PICKETS.  THE FOLLOWING MORNING, APIRL 10, WHEN PICKETS
RETURNED TO THE MARCH ROUTE, THE FIRST ARRESTS WERE MADE.  A LARGE
NUMBER OF PERSONS WERE PICKETING ON THAT DAY, 35 OR 40 OF THEM, BECAUSE
THEY ANTICIPATED ARRESTS.  IN THE SAME AFTERNOON, ONLY A WOMAN AND SOME
SCHOOL CHILDREN WERE PICKETING.  ALL WERE ARRESTED.  ON THE NEXT DAY,
APRIL 11, NINE PERSONS WERE DEMONSTRATING; SEVEN WERE ARRESTED.  THE
PICKETING CONTINUED EVERY DAY EXCEPT SUNDAY.  ON MAY 18, AGAIN, THERE
WERE NINE PICKETS, AND ALL WERE ARRESTED.  THERE WAS NO FURTHER
PICKETING. 

APART FROM THE MORNING OF APIRL 10, /3/  AT NONE OF THE TIMES WHEN
ARRESTS WERE MADE IS THERE A SHRED OF EVIDENCE THAT THE APRIL 8 STATUTE
WAS VIOLATED.  THERE IS NO SUGGESTION THAT THE FEW PICKETS PRESENT ON
THE AFTERNOON OF APRIL 10, ON APRIL 11, OR ON MAY 18, BLOCKED ACCESS TO
OR EGRESS FROM THE COURTHOUSE, OR OBSTRUCTED THE WALKS.  /4/     I
SUBMIT THAT THIS RECORD COMPELS THE FOLLOWING CONCLUSIONS: 

1.  THE PICKETS WERE ARRESTED AND PROSECUTED "WITHOUT ANY HOPE OF
ULTIMATE SUCCESS."  THERE IS NO EVIDENCE THAT THEIR ACTIVITIES
"OBSTRUCTED) . . . OR UNREASONABLY INTERFERED) WITH INGRESS OR EGRESS
TO AND FROM ANY . . . COURTHOUSES.  . . . " 

THE MEAGER, INSUBSTANTIAL EVIDENCE OF INCONVENIENCE TO PEDESTRIANS,
WHICH I HAVE SUMMARIZED IN NOTES 1 AND 4 ABOVE, COULD NOT BE USED TO
SUPPORT A CONVICTION UNDER THE LANGUAGE OF THIS SPECIFIC, NARROWLY
PHRASED STATUTE.  SEE THOMPSON V. LOUISVILLE, 362 U.S. 199 (1960); CF.
BROWN V. LOUISIANA, 383 U.S. 131 (1966) (OPINION OF FORTAS, J.).  EVEN
IF WE ASSUME THAT THIS RECORD SHOWS THAT SOME PEDESTRIANS WERE
INCONVENIENCED, THAT IS NOT THE SAME THING AS BLOCKING THE DOORS OF THE
COURTHOUSE.  I AGREE THAT, IN AN INJUNCTIVE PROCEEDING LIKE THE PRESENT
ACTION, THE STATE DOES NOT HAVE TO PROVE THE VIOLATION OF LAW BEYOND A
REASONABLE DOUBT AND ESTABLISH THAT IT IS NOT CONSTITUTIONALLY
PROTECTED.  BUT, IF DOMBROWSKI MEANS ANYTHING, THE STATE MUST CERTAINLY
SHOW MORE THAN THERE IS IN THIS RECORD. 

2.  THE ARRESTS AND THEIR SEQUENCE DEMONSTRATE THAT THE STATE WAS
NOT HERE ENGAGED IN POLICING ACCESS TO THE COURTHOUSE OR EVEN FREEDOM
OF THE SIDEWALKS, BUT IN A DELIBERATE PLAN TO PUT AN END TO THE VOTING
RIGHTS DEMONSTRATION.  THIS IS SHOWN BY THE FACTS (1) THAT THE PICKETS
MARCHED IN THE LINE LAID OUT BY THE POLICE THEMSELVES; (2) THAT THE
POLICE DID NOT INTERFERE FOR TWO AND A HALF MONTHS; (3) THAT THE
LEGISLATURE PASSED A RIFLE-SHOT LAW, NEATLY DIRECTED TO THIS PARTICULAR
SITUATION; (4) THAT THEREUPON THE POLICE SET OUT TO BREAK UP THE
PICKETING; (5) THAT THE NUMBER, VOLUME, AND CHARACTERISTICS OF THE
PICKETING CERTAINLY WERE NOT MORE OBSTRUCTIVE ON THE DAYS OF THE LAST
THREE ARRESTS THAN ON ANY OTHER DAYS IN WHICH THE PICKETING OCCURRED
AND WAS TOLERATED. 

IN MY OPINION, THESE CONCLUSIONS DEMONSTRATE THAT THE PICKETS WERE
NOT ARRESTED AS A RESULT OF GOOD-FAITH ADMINISTRATION OF THE CRIMINAL
LAW.  THEY WERE ARRESTED FOR THE PURPOSE OF PUTTING A STOP TO A
PEACEFUL, ORDERLY DEMONSTRATION PROTECTED BY THE FIRST AMENDMENT IN
PRINCIPLE AND IN THE MANNER OF EXECUTION HERE.  THEY WERE NOT ARRESTED
BECAUSE THEY BLOCKED ACCESS TO THE COURTHOUSE.  THERE IS POWERFUL
EVIDENCE IN THIS RECORD THAT THE STATE CANNOT POSSIBLY ANTICIPATE A
CONVICTION OF THE PICKETS WHICH WILL WITHSTAND THE TESTS THIS COURT HAS
LAID DOWN IN THE FIRST AMENDMENT AND FOURTEENTH AMENDMENT AREAS; AND IT
REQUIRES MORE INDULGENCE THAN THIS COURT HAS PERMITTED IN CASES
INVOLVING FIRST AMENDMENT FREEDOMS FOR US TO SAY THAT THE STATE HAS
MADE A TOLERABLE SHOWING TO THE CONTRARY. 

I WOULD REVERSE THE JUDGMENT BELOW AND REMAND FOR THE ENTRY OF AN
APPROPRIATE ORDER.  /5/ 

/1/  WITH RESPECT TO THE ARRESTS MADE ON THE MORNING OF APRIL 10,
THERE ARE SOME UNIMPRESSIVE SHREDS OF SUCH EVIDENCE:  THE TESTIMONY OF
THE HOME DEMONSTRATION AGENT THAT, IN PROCEEDING OUTSIDE FROM HER
OFFICE (LOCATED IN THE COURTHOUSE) TO THE OFFICE OF THE COUNTY AGENT
(ALSO LOCATED IN THE COURTHOUSE) TO THE OFFICE OF THE COUNTY AGENT
(ALSO LOCATED IN THE COURTHOUSE), SHE FOUND THAT THE PICKETS "WERE SO
CLOSE TOGETHER THAT I HAD TO WAIT FOR JUST A MOMENT TO GET IN LINE AND
I FELL IN LINE WITH THEM AND STARTED WEAVING BACK AND FORTH UNTIL I
REACHED THE FRONT STEPS AND THEN DROPPED OUT OF THE LINE"; IN ADDITION,
THE PRESIDENT OF THE FORREST COUNTY BOARD OF SUPERVISORS, ATTRACTED TO
THE SCENE BY "CURIOSITY AS MUCH AS ANYTHING ELSE," TESTIFIED THAT IN
HIS "OPINION" A SIDE ENTRANCE TO THE COURTHOUSE WAS OBSTRUCTED BY THE
PICKETS. 

/2/  MISS.  CODE ANN. SECS. 2087.5, 2087.9 (1966 SUPP.) (DISORDERLY
CONDUCT); MISS.  CODE ANN. SEC. 2089.5 (1966 SUPP.) (DISTURBANCE OF THE
PEACE); MISS.  CODE ANN. SEC. 2090.5 (1957) (DISTURBANCE IN PUBLIC
PLACE).  THE RECORD IN FACT SHOWS THAT IN THE EARLY PERIOD OF PICKETING
SOME ARRESTS FOR BREACH OF THE PEACE WERE MADE. 

/3/  SEE N. 1, SUPRA. 

/4/  THERE WERE ON EACH OF THESE OCCASIONS FEWER THAN 10 PICKETS
WALKING AROUND A GRASSY PLOT ON THE "MARCH ROUTE," A PATH THAT MEASURED
WELL OVER 100 FEET IN LENGTH.  THERE IS SOME INDICATION OF A CONTENTION
THAT ON THESE OCCASIONS THE PICKETS WERE WALKING CLOSELY BUNCHED.  BUT
AS CIRCUIT JUDGE RIVES, DISSENTING IN THE COURT BELOW, POINTED OUT, 10
PICKETS WALKING CLOSELY BUNCHED COULD NOT POSSIBLE HAVE OBSTRUCTED ANY
ENTRANCE TO THE COURTHOUSE FOR MORE THAN A SMALL FRACTION OF THE TIME
NECESSARY TO PROCEED AROUND THE PLOT.  AND IN ANY EVENT, THERE IS NO
EVIDENCE OF ANYONE HAVING ACTUALLY BEEN IMPEDED IN ATTEMPTING TO GAIN
ACCESS TO THE COURTHOUSE ON THESE DATES. 

/5/  IN VIEW OF THE FACT THAT THE MAJORITY DOES NOT REACH THE ISSUE,
I CONSIDER IT INAPPROPRIATE TO DISCUSS WHETHER THE ANTI-INJUNCTION
STATUTE, 28 U.S.C. 2283, CONSTITUTES A BAR TO DOMBROWSKI RELIEF IN THIS
CASE.  SEE, HOWEVER, CITY OF GREENWOOD V. PEACOCK, 384 U.S. 808, 829
(1966). 

BENJAMIN E. SMITH AND ARTHUR KINOY ARGUED THE CAUSE FOR APPELLANTS. 
WITH THEM ON THE BRIEF WERE WILLIAM M. KUNSTLER, MORTON STAVIS AND
BRUCE C. WALTZER. 

WILL S. WELLS, ASSISTANT ATTORNEY GENERAL OF MISSISSIPPI, ARGUED THE
CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE JOE T. PATTERSON,
ATTORNEY GENERAL, AND WILLIAM A. ALLAIN, ASSISTANT ATTORNEY GENERAL. 
..END :


















GINSBERG V. NEW YORK, 390 U.S. 629 


       GINSBERG V. NEW YORK. 

        APPEAL FROM THE APPELLATE TERM OF THE SUPREME COURT OF NEW

           YORK, SECOND JUDICIAL DEPARTMENT. 

        NO. 47.  ARGUED JANUARY 16, 1968.-- DECIDED APRIL 22,
1968. 


APPELLANT, WHO OPERATED A STATIONERY STORE AND LUNCHEONETTE, WAS
CONVICTED OF SELLING "GIRLIE" MAGAZINES TO A 16-YEAR-OLD BOY IN
VIOLATION OF SEC. 484-H OF THE NEW YORK PENAL LAW.  THE STATUTE MAKES
IT UNLAWFUL "KNOWINGLY TO SELL . . . TO A MINOR" UNDER 17 "(A) ANY
PICTURE . . . WHICH DEPICTS NUDITY . . . AND WHICH IS HARMFUL TO
MINORS," AND "(B) ANY . . . MAGAZINE . . . WHICH CONTAINS (SUCH
PICTURES) AND WHICH, TAKEN AS A WHOLE, IS HARMFUL TO MINORS." 
APPELLANT'S CONVICTION WAS AFFIRMED BY THE APPELLATE TERM OF THE
SUPREME COURT.  HE WAS DENIED LEAVE TO APPEAL TO THE NEW YORK COURT OF
APPEALS.  HELD: 

1.  THE MAGAZINES HERE INVOLVED ARE NOT OBSCENE FOR ADULTS AND
APPELLANT IS NOT BARRED FROM SELLING THEM TO PERSONS 17 YEARS OF AGE OR
OLDER.  PP. 634-635. 

2.  OBSCENITY IS NOT WITHIN THE AREA OF PROTECTED SPEECH OR PRESS,
ROTH V. UNITED STATES, 354 U.S. 476, 485, AND THERE IS NO ISSUE HERE OF
THE OBSCENITY OF THE MATERIAL INVOLVED AS APPELLANT DOES NOT ARGUE THAT
THE MAGAZINES ARE NOT "HARMFUL TO MINORS."  P. 635. 

3.  IT IS NOT CONSTITUTIONALLY IMPERMISSIBLE FOR NEW YORK, UNDER
THIS STATUTE, TO ACCORD MINORS UNDER 17 YEARS OF AGE A MORE RESTRICTED
RIGHT THAN THAT ASSURED TO ADULTS TO JUDGE AND DETERMINE FOR THEMSELVES
WHAT SEX MATERIAL THEY MAY READ AND SEE.  PP. 637-643. 

(A) THE STATE HAS POWER TO ADJUST THE DEFINITION OF OBSCENITY AS
APPLIED TO MINORS, FOR EVEN WHERE THERE IS AN INVASION OF PROTECTED
FREEDOMS "THE POWER OF THE STATE TO CONTROL THE CONDUCT OF CHILDREN
REACHES BEYOND THE SCOPE OF ITS AUTHORITY OVER ADULTS."  PRINCE V.
MASSACHUSETTS, 321 U.S. 158, 170.  PP. 638-639. 

(B) CONSTITUTIONAL INTERPRETATION HAS CONSISTENTLY RECOGNIZED THAT
THE PARENTS' CLAIM TO AUTHORITY IN THE REARING OF THEIR CHILDREN IS
BASIC IN OUR SOCIETY, AND THE LEGISLATURE COULD PROPERLY CONCLUDE THAT
THOSE PRIMARILY RESPONSIBLE FOR CHILDREN'S WELL-BEING ARE ENTITLED TO
THE SUPPORT OF LAWS DESIGNED TO AID DISCHARGE OF THAT RESPONSIBILITY. 
P. 639. 

(C) THE STATE HAS AN INDEPENDENT INTEREST IN PROTECTING THE WELFARE
OF CHILDREN AND SAFEGUARDING THEM FROM ABUSES.  PP. 640-641. 

(D) THIS COURT CANNOT SAY THAT THE STATUTE, IN DEFINING OBSCENITY ON
THE BASIS OF ITS APPEAL TO MINORS UNDER 17, HAS NO RATIONAL RELATION TO
THE OBJECTIVE OF SAFEGUARDING SUCH MINORS FROM HARM.  PP. 641-643. 

4.  SUBSECTIONS (F) AND (G) OF SEC. 484-H ARE NOT VOID FOR
VAGUENESS.  PP. 643-645. 

(A) THE NEW YORK COURT OF APPEALS, IN BOOKCASE, INC. V. BRODERICK,
18 N.Y.2D 71, 76, 218 N.E.2D 668, 671, CONSTRUED THE DEFINITION OF
OBSCENITY "HARMFUL TO MINORS" IN SUBSECTION (F) "AS VIRTUALLY IDENTICAL
TO" THIS COURT'S MOST RECENT STATEMENT OF THE ELEMENTS OF OBSCENTIY IN
MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 418, AND ACCORIDNGLY THE
DEFINITION GIVES ADEQUATE NOTICE OF WHAT IS PROHIBITED AND DOES NOT
OFFEND DUE PROCESS REQUIREMENTS.  P. 643. 

(B) SINCE THE NEW YORK LEGISLATURE'S ATTENTION WAS DRAWN TO PEOPLE
V. FINKELSTEIN, 9 N.Y.2D 342, 174 N.E.2D 470, WHICH DEFINED THE NATURE
OF SCIENTER FOR NEW YORK'S GENERAL OBSCENITY STATUTE, WHEN IT
CONSIDERED SEC. 484-H, IT MAY BE INFERRED THAT THE REFERENCE IN
PROVISION (I) OF SUBSECTION (G) TO KNOWLEDGE OF THE "CHARACTER AND
CONTENT" OF THE MATERIAL INCORPORATES THE GLOSS GIVEN THE TERM
"CHARACTER" IN PEOPLE V. FINKELSTEIN.  P. 644. 

(C) PROVISION (II) OF SUBSECTION (G) STATES EXPRESSLY THAT A
DEFENDANT MUST BE ACQUITTED ON THE GROUND OF "HONEST MISTAKE" IF HE
PROVES THAT HE MADE "A REASONABLE BONA FIDE ATTEMPT TO ASCERTAIN THE
TRUE AGE OF SUCH MINOR."  P. 645. 

AFFIRMED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE CONSTITUTIONALITY OF ITS FACE
OF A NEW YORK CRIMINAL OBSCENITY STATUTE WHICH PROHIBITS THE SALE TO
MINORS UNDER 17 YEARS OF AGE OF MATERIAL DEFINED TO BE OBSCENE ON THE
BASIS OF ITS APPEAL TO THEM WHETHER OR NOT IT WOULD BE OBSCENE TO
ADULTS. 

APPELLANT AND HIS WIFE OPERATE "SAM'S STATIONERY AND LUNCHEONETTE"
IN BELLMORE, LONG ISLAND.  THEY HAVE A LUNCH COUNTER, AND, AMONG OTHER
THINGS, ALSO SELL MAGAZINES INCLUDING SOME SO-CALLED "GIRLIE"
MAGAZINES.  APPELLANT WAS PROSECUTED UNDER TWO INFORMATIONS, EACH IN
TWO COUNTS, WHICH CHARGED THAT HE PERSONALLY SOLD A 16-YEAR-OLD BOY TWO
"GIRLIE" MAGAZINES ON EACH OF TWO DATES IN OCTOBER 1965, IN VIOLATION
OF SEC. 484-H OF THE NEW YORK PENAL LAW.  HE WAS TRIED BEFORE A JUDGE
WITHOUT A JURY IN NASSAU COUNTY DISTRICT COURT AND WAS FOUND GUILTY ON
BOTH COUNTS.  /1/  THE JUDGE FOUND (1) THAT THE MAGAZINES CONTAINED
PICTURES WHICH DEPICTED FEMALE "NUDITY" IN A MANNER DEFINED IN
SUBSECTION 1(B), THAT IS "THE SHOWING OF . . . FEMALE . . . BUTTOCKS
WITH LESS THAN A FULL OPAQUE COVERING, OR THE SHOWING OF THE FEMALE
BREAST WITH LESS THAN A FULL OPAQUE COVERING OF ANY PORTION THEREOF
BELOW THE TOP OF THE NIPPLE . . . , " AND (2) THAT THE PICTURES WERE
"HARMFUL TO MINORS" IN THAT THEY HAD, WITHIN THE MEANING OF SUBSECTION
1(F) "THAT QUALITY OF . . . REPRESENTATION . . . OF NUDITY . . .
(WHICH) . . . (I) REDOMINANTLY APPEALS TO THE PRURIENT, SHAMEFUL OR
MORBID INTEREST OF MINORS, AND (II) IS PATENTLY OFFENSIVE TO PREVAILING
STANDARDS IN THE ADULT COMMUNITY AS A WHOLE WITH RESPECT TO WHAT IS
SUITABLE MATERIAL FOR MINORS, AND (III) IS UTTERLY WITHOUT REDEEMING
SOCIAL IMPORTANCE FOR MINORS."  HE HELD THAT BOTH SALES TO THE 16-YEAR
OLD BOY THEREFORE CONSTITUTED THE VIOLATION UNDER SEC. 484-H OF
"KNOWINGLY TO SELL . . . TO A MINOR"  UNDER 17 OF "(A) ANY PICTURE . .
. WHICH DEPICTS NUDITY . . . AND WHICH IS HARMFUL TO MINORS," AND "(B)
ANY . . . MAGAZINE . . . WHICH CONTAINS . . . (SUCH PICTURES) . . . AND
WHICH, TAKEN AS A WHOLE, IS HARMFUL TO MINORS."  THE CONVICTION WAS
AFFIRMED WITHOUT OPINION BY THE APPELLATE TERM, SECOND DEPARTMENT, OF
THE SUPREME COURT.  APPELLANT WAS DENIED LEAVE TO APPEAL TO THE NEW
YORK COURT OF APPEALS AND THEN APPEALED TO THIS COURT.  WE NOTED
PROBABLE JURISDICTION.  388 U.S. 904.  WE AFFIRM.  /2/

        I. 

THE "GIRLIE" PICTURE MAGAZINES INVOLVED IN THE SALES HERE ARE NOT
OBSCENE FOR ADULTS, REDRUP V. NEW YORK, 386 U.S. 767.  /3/  BUT SEC.
484-H DOES NOT BAR THE APPELLANT FROM STOCKING THE MAGAZINES AND
SELLING THEM TO PERSONS 17 YEARS OF AGE OR OLDER, AND THEREFORE THE
CONVICTION IS NOT INVALID UNDER OUR DECISION IN BUTLER V. MICHIGAN, 352
U.S. 380. 

OBSCENITY IS NOT WITHIN THE AREA OF PROTECTED SPEECH OR PRESS.  ROTH
V. UNITED STATES, 354 U.S. 476, 485.  THE THREE-PRONGED TEST OF
SUBSECTION 1(F) FOR JUDGING THE OBSCENITY OF MATERIAL SOLD TO MINORS
UNDER 17 IS A VARIABLE FROM THE FORMULATION FOR DETERMINING OBSCENITY
UNDER ROTH STATED IN THE PLURALITY OPINION IN MEMOIRS V. MASSACHUSETTS,
383 U.S. 413, 418.  APPELLANT'S PRIMARY ATTACH UPON SEC. 484-H IS
LEVELS AT THE POWER OF THE STATE TO ADAPT THIS MEMOIRS FORMULATION TO
DEFINE THE MATERIAL'S OBSCENITY ON THE BASIS OF ITS APPEAL TO MINORS,
AND THUS EXCLUDE MATERIAL SO DEFINED FROM THE AREA OF PROTECTED
EXPRESSION.  HE MAKES NO ARGUMENT THAT THE MAGAZINES ARE NOT "HARMFUL
TO MINORS" WITHIN THE DEFINITION OF SUBSECTION 1(F).  THUS "(NO ISSUE
IS PRESENTED . . . CONCERNING THE OBSCENITY OF THE MATERIAL INVOLVED." 
ROTH, SUPRA, AT 481, N. 8. 

THE NEW YORK COURT OF APPEALS "UPHELD THE LEGISLATURE'S POWER TO
EMPLOY VARIABLE CONCEPTS OF OBSCENITY"  /4/  IN A CASE IN WHICH THE
SAME CHALLENGE TO STATE POWER TO ENACT SUCH A LAW WAS ALSO ADDRESSED TO
SEC. 484-H.  BOOKCASE, INC. V. BRODERICK, 18 N.Y.2D 71, 218 N.E.2D 668,
APPEAL DISMISSED FOR WANT OF A PROPERLY PRESENTED FEDERAL QUESTION, SUB
NOM. BOOKCASE, INC. V. LEARY, 385 U.S. 12.  IN SUSTAINING STATE POWER
TO ENACT THE LAW, AT COURT OF APPEALS SAID, BOOKCASE, INC. V.
BRODERICK, AT 75, 218 N.E.2D, AT 671: 

 "(MATERIAL WHICH IS PROTECTED FOR DISTRIBUTION TO ADULTS IS NOT

  NECESSARILY CONSTITUTIONALLY PROTECTED FROM RESTRICTION UPON ITS

  DISSEMINATION TO CHILDREN.  IN OTHER WORDS, THE CONCEPT OF

  OBSCENITY OR OF UNPROTECTED MATTER MAY VARY ACCORDING TO THE

  GROUP TO WHOM THE QUESTIONABLE MATERIAL IS DIRECTED OR FROM WHOM

  IT IS QUARANTINED.  BECAUSE OF THE STATE'S EXIGENT INTEREST IN

  PREVENTING DISTRIBUTION TO CHILDREN OF OBJECTIONABLE MATERIAL, IT

  CAN EXERCISE ITS POWER TO PROTECT THE HEALTH, SAFETY, WELFARE AND

MORALS OR ITS COMMUNITY BY BARRING THE DISTRIBUTION TO CHILDREN

  OF BOOKS RECOGNIZED TO BE SUITABLE FOR ADULTS." 

APPELLANT'S ATTACK IS NOT THAT NEW YORK WAS WITHOUT POWER TO DRAW THE
LINE AT AGE 17.  RATHER, HIS CONTENTION IS THE BROAD PROPOSITION THAT
THE SCOPE OF THE CONSTITUTIONAL FREEDOM OF EXPRESSION SECURED TO A
CITIZEN TO READ OR SEE MATERIAL CONCERNED WITH SEX CANNOT BE MADE TO
DEPEND UPON WHETHER THE CITIZEN IS AN ADULT OR A MINOR.  HE ACCORDINGLY
INSISTS THAT THE DENIAL TO MINORS UNDER 17 OF ACCESS TO MATERIAL
CONDEMNED BY SEC. 484-H, INSOFAR AS THAT MATERIAL IS NOT OBSCENE FOR
PERSONS 17 YEARS OF AGE OR OLDER, CONSTITUTES AND UNCONSTITUTIONAL
DEPRIVATION OF PROTECTED LIBERTY. 

WE HAVE NO OCCASION IN THIS CASE TO CONSIDER THE IMPACT OF THE
GUARANTEES OF FREEDOM OF EXPRESSION UPON THE TOTALITY OF THE
RELATIONSHIP OF THE MINOR AND THE STATE, CF.  IN RE GAULT, 387 U.S. 1,
13.  IT IS ENOUGH FOR THE PURPOSES OF THIS CASE THAT WE INQUIRE WHETHER
IT WAS CONSTITUTIONALLY IMPERMISSIBLE FOR NEW YORK, INSOFAR AS SEC. 484
H DOES SO, TO ACCORD MINORS UNDER 17 A MORE RESTRICTED RIGHT THAN THAT
ASSURED TO ADULTS TO JUDGE AND DETERMINE FOR THEMSELVES WHAT SEX
MATERIAL THEY MAY READ OR SEE.  WE CONCLUDE THAT WE CANNOT SAY THAT THE
STATUTE INVADES THE AREA OF FREEDOM OF EXPRESSION CONSTITUTIONALLY
SECURED TO MINORS.  /5/ 

APPELLANT ARGUES THAT THERE IS AN INVASION OF PROTECTED RIGHTS UNDER
SEC. 484-H CONSTITUTIONALLY INDISTINGUISHABLE FROM THE INVASIONS UNDER
THE NEBRASKA STATUTE FORBIDDING CHILDREN TO STUDY GERMAN, WHICH WAS
STRUCK DOWN IN MEYER V. NEBRASKA, 262 U.S. 390; THE OREGON STATUTE
INTERFERING WITH CHILDREN'S ATTENDANCE AT PRIVATE AND PARAOCHIAL
SCHOOLS, WHICH WAS STRUCK DOWN IN PIERCE V. SOCIETY OF SISTERS, 286
U.S. 510; AND THE STATUTE COMPELLING CHILDREN AGAINST THEIR RELIGIOUS
SCRUPLES TO GIVE THE FLAG STATUTE, WHICH WAS STRUCK DOWN IN WEST
VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624.  WE REJECT
THAT ARGUMENT.  WE DO NOT REGARD NEW YORK'S REGULATION IN DEFINING
OBSCENITY ON THE BASIS OF ITS APPEAL TO MINORS UNDER 17 AS INVOLVING AN
INVASION OF SUCH MINOR'S CONSTITUTIONALLY PROTECTED FREEDOMS.  RATHER
SEC. 484-H SIMPLY ADJUSTS THE DEFINITION OF OBSCENITY "TO SOCIAL
REALITIES BY PERMITTING THE APPEAL OF THIS TYPE OF MATERIAL TO BE
ASSESSED IN TERMS OF THE SEXUAL INTERESTS . . . " OF SUCH MINORS. 
MISHKIN V. NEW YORK, 383 U.S. 502, 509; BOOKCASE, INC. V. BRODERICK,
SUPRA, AT 75, 218 N.E.2D, AT 671.  THAT THE STATE HAS POWER TO MAKE
THAT ADJUSTMENT SEEMS CLEAR, FOR WE HAVE RECOGNIZED THAT EVEN WHERE
THERE IS AN INVASION OF PROTECTED FREEDOMS "THE POWER OF THE STATE TO
CONTROL THE CONDUCT OF CHILDREN REACHES BEYOND THE SCOPE OF ITS
AUTHORITY OVER ADULTS . . . "  PRINCE V. MASSACHUSETTS, 321 U.S. 158,
170.  /6/  IN PRINCE WE SUSTAINED THE CONVICTION OF THE GUARDIAN OF A
NINE-YEAR-OLD GIRL, BOTH MEMBERS OF THE SECT OF JEHOVAH'S WITNESSES,
FOR VIOLATING THE MASSACHUSETTS CHILD LABOR LAW BY PERMITTING THE GIRL
TO SELL THE SECT'S RELIGIOUS TRACTS ON THE STREETS OF BOSTON. 

THE WELL-BEING OF ITS CHILDREN IS OF COURSE A SUBJECT WITHIN THE
STATE'S CONSTITUTIONAL POWER TO REGULATE, AND, IN OUR VIEW, TWO
INTERESTS JUSTIFY THE LIMITATIONS IN SEC. 484-H UPON THE AVAILABILITY
OF SEX MATERIAL TO MINORS UNDER 17, AT LEAST IF IT WAS RATIONAL FOR THE
LEGISLATURE TO FIND THAT THE MINORS' EXPOSURE TO SUCH MATERIAL MIGHT BE
HARMFUL.  FIRST OF ALL, CONSTITUTIONAL INTERPRETATION HAS CONSISTENTLY
RECOGNIZED THAT THE PARENTS' CLAIM TO AUTHORITY IN THEIR HOUSEHOLD TO
DIRECT THE REARING OF THEIR CHILDREN IS BASIC IN THE STRUCTURE OF OUR
SOCIETY.  "IT IS CARDINAL WITH US THAT THE CUSTODY, CARE AND NURTURE OF
THE CHILD RESIDE FIRST IN THE PARENTS, WHOSE PRIMARY FUNCTION AND
FREEDOM INCLUDE PREPARATION FOR OBLIGATIONS THE STATE CAN NEITHER
SUPPLY NOR HINDER."  PRINCE V. MASSACHUSETTS, SUPRA, AT 166.  THE
LEGISLATURE COULD PROPERLY CONCLUDE THAT PARENTS AND OTHERS, TEACHERS
FOR EXAMPLE, WHO HAVE THIS PRIMARY RESPONSIBILITY FOR CHILDREN'S WELL
BEING ARE ENTITLED TO THE SUPPORT OF LAWS DESIGNED TO AID DISCHARGE OF
THAT RESPONSIBILITY.  INDEED, SUBSECTION 1(F)(II) OF SEC. 484-H
EXPRESSLY RECOGNIZES THE PARENTAL ROLE IN ASSESSING SEX-RELATED
MATERIAL HARMFUL TO MINORS ACCORDING "TO PREVAILING STANDARDS IN THE
ADULT COMMUNITY AS A WHOLE WITH RESPECT TO WHAT IS SUITABLE MATERIAL
FOR MINORS."  MOREOVER, THE PROHIBITION AGAINST SALES TO MINORS DOES
NOT BAR PARENTS WHO SO DESIRE FROM PURCHASING THE MAGAZINES FOR THEIR
CHILDREN.  /7/ 

THE STATE ALSO HAS AN INDEPENDENT INTEREST IN THE WELL-BEING OF ITS
YOUTH.  THE NEW YORK COURT OF APPEALS SQUARELY BOTTOMED ITS DECISION ON
THAT INTEREST IN BOOKCASE, INC. V. BRODERICK, SUPRA, AT 75, 218 N.E.2D,
AT 671.  JUDGE FULD, NOW CHIEF JUDGE FULD, ALSO EMPHASIZED TIS
SIGNIFICANCE IN THE EARLIER CASE OF PEOPLE V. KAHAN, 15 N.Y.2D 311, 206
N.E.2D 333, WHICH HAD STRUCK DOWN THE FIRST VERSION OF SEC. 484-H ON
GROUNDS OF VAGUENESS.  IN HIS CONCURRING OPINION, ID., AT 312, 206
N.E.2D, AT 334, HE SAID: 

 "WHILE THE SUPERVISION OF CHILDREN'S READING MAY BEST BE LEFT

  TO THEIR PARENTS, THE KNOWLEDGE THAT PARENTAL CONTROL OR GUIDANCE

  CANNOT ALWAYS BE PROVIDED AND SOCIETY'S TRANSCENDENT INTEREST IN

  PROTECTING THE WELFARE OF CHILDREN JUSTIFY REASONABLE REGULATION

  OF THE SALE OF MATERIAL TO THEM.  IT IS, THEREFORE, ALTOGETHER

  FITTING AND PROPER FOR A STATE TO INCLUDE IN A STATUTE DESIGNED

  TO REGULATE THE SALE OF PORNOGRAPHY TO CHILDREN SPECIAL

  STANDARDS, BROADER THAN THOSE EMBODIED IN LEGISLATION AIMED AT

  CONTROLLING DISSIMINATION OF SUCH MATERIAL TO ADULTS." 

IN PRINCE V. MASSACHUSETTS, SUPRA, AT 165, THIS COURT, TOO,
RECOGNIZED THAT THE STATE HAS AN INTEREST "TO PROTECT THE WELFARE OF
CHILDREN" AND TO SEE THAT THEY ARE "SAFEGUARDED FROM ABUSES" WHICH
MIGHT PREVENT THEIR "GROWTH INTO FREE AND INDEPENDENT WELL-DEVELOPED
MEN AND CITIZENS."  THE ONLY QUESTION REMAINING, THEREFORE, IS WHETHER
THE NEW YORK LEGISLATURE MIGHT RATIONALLY CONCLUDE, AS IT HAS, THAT
EXPOSURE TO THE MATERIALS PROSCRIBED BY SEC. 484-H CONSTITUTES SUCH AN
"ABUSE". 

MATERIAL CONDEMNED BY SEC. 484-H IS "A BASIC FACTOR IN IMPAIRING THE
ETHICAL AND MORAL DEVELOPMENT OF OUR YOUTH AND A CLEAR AND PRESENT
DANGER TO THE PEOPLE OF THE STATE."  IT IS VERY DOUBTFUL THAT THIS
FINDING EXPRESSES AN ACCEPTED SCIENTIFIC FACT.  /8/  BUT OBSCENITY IS
NOT PROTECTED EXPRESSION AND MAY BE SUPPRESSED WITHOUT A "CLEAR AND
PRESENT DANGER" IN ITS APPLICATION TO PROTECTED SPEECH.  ROTH V. UNITED
STATES, SUPRA, AT 486-487.  /9/  TO SUSTAIN STATE POWER TO EXCLUDE
MATERIAL DEFINED AS OBSCENITY BY SEC. 484-H REQUIRES ONLY THAT WE BE
ABLE TO SAY THAT IT WAS NOT IRRATIONAL FOR THE LEGISLATURE TO FIND THAT
EXPOSURE TO MATERIAL CONDEMNED BY THE STATUTE IS HARMFUL TO MINORS.  IN
MEYER V. NEBRASKA, SUPRA, AT 400, WE WERE ABLE TO SAY THAT CHILDREN'S
KNOWLEDGE OF THE GERMAN LANGUAGE "CANNOT REASONABLY BE REGARDED AS
HARMFUL."  THAT CANNOT BE SAID BY US OF MINOR'S READING AND SEEING SEX
MATERIAL.  TO BE SURE, THERE IS NO LACK OF "STUDIES" WHICH PURPORT TO
DEMONSTRATE THAT OBSCENITY IS OR IS NOT "A BASIC FACTOR IN IMPAIRING
THE ETHICAL AND MORAL DEVELOPMENT OF . . . YOUTH AND A CLEAR AND
PRESENT DANGER TO THE PEOPLE OF THE STATE."  BUT THE GROWING CONSENSUS
OF COMMENTATORS IS THAT "WHILE THESE STUDIES ALL AGREE THAT A CAUSAL
LINK HAS NOT BEEN DEMONSTRATED, THEY ARE EQUALLY AGREED THAT A CAUSAL
LINK HAS NOT BEEN DISPROVED EITHER."  /10/  WE DO NOT DEMAND OF
LEGISLATURES "SCIENTIFICALLY CERTAIN CRITERIA OF LEGISLATION."  NOBLE
STATE BANK V. HASKELL, 219 U.S. 104, 110.  WE THEREFORE CANNOT SAY THAT
SEC. 484-H, IN DEFINING THE OBSCENITY OF MATERIAL ON THE BASIS OF ITS
APPEAL TO MINORS UNDER 17, HAS NO RATIONAL RELATION TO THE OBJECTIVE OF
SAFEGUARDING SUCH MINORS FROM HARM. 

        II. 

APPELLANT CHALLENGES SUBSECTIONS (F) AND (G) OF SEC. 484-H AS IN ANY
EVENT VOID FOR VAGUENESS.  THE ATTACK ON SUBSECTION (F) IS THAT THE
DEFINITION OF OBSCENITY "HARMFUL TO MINORS" IS SO VAGUE THAT AN HONEST
DISTRIBUTOR OF PUBLICATIONS CANNOT KNOW WHEN HE MIGHT BE HELD TO HAVE
VIOLATED SEC. 484-H.  BUT THE NEW YORK COURT OF APPEALS CONSTRUED THIS
DEFINITION TO BE "VIRTUALLY IDENTICAL TO THE SUPREME COURT'S MOST
RECENT STATEMENT OF THE ELEMENTS OF OBSCENTIY.  (MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 418)," BOOKCASE, INC. V. BRODERICK, SURPA,
AT 76, 218 N.E.2D, AT 672.  THE DEFINITION THEREFORE GIVES "MEN IN
ACTING ADEQUATE NOTICE OF WHAT IS PROHIBITED" AND DOES NOT OFFEND THE
REQUIREMENTS OF DUE PROCESS.  ROTH V. UNITED STATES, SUPRA, AT 492; SEE
ALSO WINTERS V. NEW YORK, 333 U.S. 507, 520.     AS IS REQUIRED BY
SMITH V. CALIFORNIA, 361 U.S. 147, SEC. 484-H PROHIBITS ONLY THOSE
SALES MADE "KNOWINGLY".  THE CHALLENGE TO THE SCIENTER REQUIREMENT OF
SUBSECTION (G) CENTERS ON THE DEFINITION OF "KNOWINGLY" INSOFAR AS IT
INCLUDES "REASON TO KNOW" OF "A BELIEF OR GROUND FOR BELIEF WHICH
WARRANTS FURTHER INSPECTION OR INQUIRY OF BOTH:  (I) THE CHARACTER AND
CONTENT OF ANY MATERIAL DESCRIBED HEREIN WHICH IS REASONABLY
SUSCEPTIBLE OF EXAMINATION BY THE DEFENDANT, AND (II) THE AGE OF THE
MINOR, PROVIDED HOWEVER, THAT AN HONEST MISTAKE SHALL CONSTITUTE AN
EXCUSE FROM LIABILITY HEREUNDER IF THE DEFENDANT MADE A REASONABLE BONA
FIDE ATTEMPT TO ASCERTAIN THE TRUE AGE OF SUCH MINOR." 

AS TO (I), SEC. 484-H WAS PASSED AFTER THE NEW YORK COURT OF APPEALS
DECIDED PEOPLE V. FINKELSTEIN, 9 N.Y.2D 342, 174 N.E.2D 470, WHICH READ
THE REQUIREMENT OF SCIENTER INTO NEW YORK'S GENERAL OBSCENITY STATUTE,
SEC. 1141 OF THE PENAL LAW.  THE CONSTITUTIONAL REQUIREMENT OF
SCIENTER, IN THE SENSE OF KNOWLEDGE OF THE CONTENTS OF MATERIAL, RESTS
ON THE NECESSITY "TO AVOID THE HAZARD OF SELF-CENSORSHIP OF
CONSTITUTIONALLY PROTECTED MATERIAL AND TO COMPENSATE FOR THE
AMBIGUITIES INHERENT IN THE DEFINITION OF OBSCENITY,"  MISHKIN V. NEW
YORK, SUPRA, AT 511.  THE COURT OF APPEALS IN FINKELSTEIN INTERPRESTED
SEC. 1141 TO REQUIRE "THE VITAL ELEMENT OF SCIENTER" AND DEFINED THAT
REQUIREMENT IN THESE TERMS:  "A READING OF THE STATUTE (SEC. 1141) AS A
WHOLE CLEARLY INDICATES THAT ONLY THOSE WHO ARE IN SOME MANNER AWARE OF
THE CHARACTER OF THE MATERIAL THEY ATTEMPT TO DISTRIBUTE SHOULD BE
PUNISHED.  IT IS NOT INNOCENT BUT CALCULATED PURVEYANCE OF FILTH WHICH
IS EXORCISED . . . "  9 N.Y.2D, AT 344-345, 174 N.E.2D, AT 471.  IN
MISHKIN V. NEW YORK, SUPRA, AT 510-511, WE HELD THAT A CHALLENGE TO THE
VALIDITY OF SEC. 1141 FOUNDED ON SMITH V. CALIFORNIA, SUPRA, WAS
FORECLOSED IN LIGHT OF THIS CONSTRUCTION.  WHEN SEC. 484-H WAS BEFORE
THE NEW YORK LEGISLATURE ITS ATTENTION WAS DIRECTED TO PEOPLE V.
FINKELSTEIN, AS DEFINING THE NATURE OF SCIENTER REQUIRED TO SUSTAIN THE
STATUTE.  1965 N.Y.S.LEG.ANN.  54-56.  WE MAY THEREFORE INTER THAT THE
REFERENCE IN PROVISION (I) TO KNOWLEDGE OF "THE CHARACTER AND CONTENT
OF ANY MATERIAL DESCRIBED HEREIN" INCORPORATES THE GLOSS GIVEN THE TERM
"CHARACTER" IN PEOPLE V. FINKELSTEIN.  IN THAT CIRCUMSTANCE MISHKIN
REQUIRES REJECTION OF APPELLANT'S CHALLENGE TO PROVISION (I) AND MAKES
IT UNNECESSARY FOR US TO DEFINE FURTHER TODAY "WHAT SORT OF MENTAL
ELEMENT IS REQUISITE TO A CONSTITUTIONALLY PERMISSIBLE PROSECUTION,"
SMITH, V. CALIFORNIA, SUPRA. AT 154. 

APPELLANT ALSO ATTACKS PROVISION (II) AS IMPERMISSIBLY VAGUE.  THIS
ATTACK HOWEVER IS LEVELED ONLY AT THE PROVISO ACCORDING THE DEFENDANT A
DEFENSE OF "HONEST MISTAKE" AS TO THE AGE OF THE MINOR.  APPELLANT
ARGUES THAT "THE STATUTE DOES NOT TELL THE BOOKSELLER WHAT EFFORT HE
MUST TAKE BEFORE HE CAN BE EXCUSED."  THE ARGUMENT IS WHOLLY WITHOUT
MERIT.  THE PROVISO STATES EXPRESSLY THAT THE DEFENDANT MUST BE
ACQUITTED ON THE GROUND OF "HONEST MISTAKE" IF THE DEFENDANT PROVES
THAT HE MADE "A REASONABLE BONA FIDE ATTEMPT TO ASCERTAIN THE TRUE AGE
OF SUCH MINOR."  CF. 1967 PENAL LAW SEC. 235-22(2), N. 1, SUPRA.

              AFFIRMED. 

/1/  APPELLANT MAKES NO ATTACK UPON SEC. 484-H AS APPLIED.  WE
THEREFORE HAVE NO OCCASION TO CONSIDER THE SUFFICIENCY OF THE EVIDENCE
OR SUCH ISSUES AS BURDEN OF PROOF, WHETHER EXPERT EVIDENCE IS EITHER
REQUIRED TO PERMISSIBLE, OR ANY OTHER QUESTIONS WHICH MIGHT BE
PERTINENT TO THE APPLICATION OF THE STATUTE.  APPELLANT DOES ARGUE THAT
BECAUSE THE TRIAL JUDGE INCLUDED A FINDING THAT TWO OF THE MAGAZINES
"CONTAINED VERBAL DESCRIPTIONS AND NARRATIVE ACCOUNTS OF SEXUAL
EXCITEMENT AND SEXUAL CONDUCT," AN OFFENSE NOT CHARGED IN THE
INFORMATIONS, THE CONVICTION MUST BE SET ASIDE UNDER COLE V. ARKANSAS,
333 U.S. 196.  BUT THIS CASE WAS TRIED AND THE APPELLANT WAS FOUND
GUILTY ONLY ON THE CHARGES OF SELLING MAGAZINES CONTAINING PICTURES
DEPICTING FEMALE NUDITY.  IT IS THEREFORE NOT A CASE WHERE DEFENDANT
WAS TRIED AND CONVICTED OF A VIOLATION OF ONE OFFENSE WHEN HE WAS
CHARGED WITH A DISTINCTLY AND SUBSTANTIALLY DIFFERENT OFFENSE. 

THE FULL TEST OF SEC. 484-H IS ATTACHED AS APPENDIX A. IT WAS
ENACTED IN L. 1965, C. 327, TO REPLACE AN EARLIER VERSION HELD INVALID
BY THE NEW YORK COURT OF APPEALS IN PEOPLE V. KAHAN, 15 N.Y.2D 311, 206
N.E.2D 333, AND PEOPLE V. BOOKCASE, INC., 14 N.Y.2D 409, 201 N.E.2D
14.  SECTION 484-H IN TURN WAS REPLACED BY L. 1967, C. 791, NOW SEC.
235.20-235.22 OF THE PENAL LAW.  THE MAJOR CHANGED UNDER THE 1967 LAW
ADDED A PROVISION THAT THE ONE CHARGED WITH A VIOLATION "IS PRESUMED TO
(SELL) WITH KNOWLEDGE OF THE CHARACTER AND CONTENT OF THE MATERIAL SOLD
. . . , " AND THE PROVISION THAT "IT IS AN AFFIRMATIVE DEFENSE THAT:
(A) THE DEFENDANT HAD REASONABLE CAUSE TO BELIEVE THAT THE MINOR
INVOLVED WAS SEVENTEEN YEARS OLD OR MORE; AND (B) SUCH MINOR EXHIBITED
TO THE DEFENDANT A DRAFT CARDS, DIVER'S LICENSE, BIRTH CERTIFICATE OR
OTHER OFFICIAL OR APPARENTLY OFFICIAL DOCUMENT PURPORTING TO ESTABLISH
THAT SUCH MINOR WAS SEVENTEEN YEARS OLD OR MORE."  NEITHER ADDITION IS
INVOLVED IN THIS CASE.  WE INTIMATE NO VIEW WHATEVER UPON THE
CONSTITUTIONAL VALIDITY OF THE PRESUMPTION.  SEE IN GENERAL SMITH V.
CALIFORNIA, 361 U.S. 147; SPEISER V. RANDALL, 357 U.S. 513; 41
N.Y.U.L.REV.  791 (1966); 30 ALBANY.REV.  133 (1966). 

THE 1967 LAW ALSO REPEALED OUTRIGHT SEC. 484-I WHICH HAD BEEN
ENACTED ONE WEEK AFTER SEC. 484-H.  L. 1965, C. 327.  IT FORBADE SALES
TO MINORS UNDER THE AGE OF 18.  THE NEW YORK COURT OF APPEALS SUSTAINED
ITS VALIDITY AGAINST THE CHALLENGE THAT IT WAS VOID FOR VAGUENESS. 
PEOPLE V. TANNENBAUM, 18 N.Y.2D 268, 220 N.E.2D 783.  FOR AN ANALYSIS
OF SEC. 484-I AND A COMPARISON WITH SEC. 484-H SEE 33 BROOKLYN L.REV. 
329 (1967). 

/2/  THE CASE IS NOT MOOT.  THE APPELLANT MIGHT HAVE BEEN SENTENCED
TO ONE YEAR'S IMPRISONMENT, OR A $500 FINE OR BOTH.  N.Y. PENAL LAW
SEC. 1937.  THE TRIAL JUDGE HOWEVER EXERCISED AUTHORITY UNDER N.Y.
PENAL LAW SEC. 2188 AND ON MAY 17, 1966, SUSPENDED SENTENCE ON ALL
COUNTS.  UNDER SEC. 470-A OF THE NEW YORK CODE OF CRIMINAL PROCEDURE,
THE JUDGE COULD THEREAFTER RECALL APPELLANT AND IMPOSE SENTENCE ONLY
WITHIN ONE YEAR, OR BEFORE MAY 17, 1967.  THE JUDGE DID NOT DO SO.
ALTHOUGH ST. PIERRE V. UNITED STATES, 319 U.S. 41, HELD THAT A CRIMINAL
CASE HAD BECOME MOOT WHEN THE PETITIONER FINISHED SERVING HIS SENTENCE
BEFORE DIRECT REVIEW IN THIS COURT, ST. PIERRE ALSO RECOGNIZED THAT THE
CASE WOULD NOT HAVE BEEN MOOT HAD "PETITIONER SHOWN THAT UNDER EITHER
STATE OR FEDERAL LAW FURTHER PENALTIES OR DISABILITIES CAN BE IMPOSED
ON HIM AS RESULT OF THE JUDGMENT WHICH HAS NOT BEEN SATISFIED."  ID.,
AT 43.  THE STATE OF NEW YORK CONCEDES IN ITS BRIEF IN THE COURT
ADDRESSED TO MOOTNESS "THAT CERTAIN DISABILITIES DO FLOW FROM THE
CONVICTION."  THE BRIEF STATES THAT AMONG THESE IS "THE POSSIBILITY OF
INELIGIBILITY FOR LICENSING UNDER STATE AND MUNICIPAL LICENSE LAWS
REGULATING VARIOUS LAWFUL OCCUPATIONS . . . "  SINCE THE ARGUMENT, THE
PARTIES ADVISED THE COURT THAT, ALTHOUGH THIS IS THE FIRST TIME
APPELLANT HAS BEEN CONVICTED OF ANY CRIME, THIS CONVICTION MIGHT RESULT
IN THE REVOCATION OF THE LICENSE REQUIRED BY MUNICIPAL LAW AS A
PREREQUISITE TO ENGAGING IN THE LUNCHEONETTE BUSINESS HE CARRIES ON IN
BELLMORE, NEW YORK.  BELLMORE IS AN "UNINCORPORATED VILLAGE" WITHIN THE
TOWN OF HEMPSTEAD, LONG ISLAND, 1967 N.Y.S.LEG.MAN.  1154.  THE TOWN
HAS A LICENSING ORDINANCE WHICH PROVIDES THAT THE "COMMISSIONER OF
BUILDINGS . . . MAY SUSPEND OR REVOKE ANY LICENSE ISSUED, IN HIS
DISCRETION, FOR . . . (E) CONVICTION OF ANY CRIME."  LL 21, TOWN OF
HEMPSTEAD, EFF. DECEMBER 1, 1966, SEC. 8.1(E).  IN THESE CIRCUMSTANCES
THE CASE IS NOT MOOT SINCE THE CONVICTION MAY ENTAIL COLLATERAL
CONSEQUENCES SUFFICIENT TO BRING THE CASE WITHIN THE ST. PIERRE
EXCEPTION.  SEE FISWICK V. UNITED STATES, 329 U.S. 211, 220-222.  WE
WERE NOT ABLE TO REACH THAT CONCLUSION IN TANNENBAUM V. NEW YORK, 388
U.S. 439, OR JACOBS V. NEW YORK, 388 U.S. 431, IN WHICH THE APPEALS
WERE DISMISSED AS MOOT.  IN TANNENBAUM THERE WAS NO CONTENTION THAT THE
CONVICTIONS UNDER THE NOW REPEALED SEC. 484-I ENTAILED ANY COLLATERAL
CONSEQUENCES.  IN JACOBS THE APPEAL WAS DISMISSED ON MOTION OF THE
STATE, WHICH ALLEGED, INTER ALIA, THAT NEW YORK LAW DID NOT IMPOSE "ANY
FURTHER PENALTY UPON CONVICTION OF THE MISDEMEANOR HERE IN ISSUE." 
APPELLANT DID NOT THERE SHOW, OR CONTEND, THAT HIS LICENSE MIGHT BE
REVOKED FOR "CONVICTION OF ANY CRIME"; HE ASSERTED ONLY THAT THE
CONVICTION MIGHT BE THE BASIS OF A SUSPENSION UNDER A PROVISION OF THE
ADMINISTRATIVE CODE OF THE CITY OF NEW YORK REQUIRING THE DEPARTMENT OF
LICENSES TO ASSURE THAT MOTION PICTURE THEATRES ARE NOT CONDUCTED IN A
MANNER OFFENSIVE TO "PUBLIC MORALS." 

/3/  ONE OF THE MAGAZINES WAS AN ISSUE OF THE MAGAZINE "SIR."  WE
HELD IN GENT V. ARKANSAS, DECIDED WITH REDRUP V. NEW YORK, 386 U.S.
767, 769, THAT AN ARKANSAS STATUTE WHICH DID NOT REFLECT A SPECIFIC AND
LIMITED STATE CONCERN FOR JUVENILES WAS UNCONSTITUTIONAL INSOFAR AS IT
WAS APPLIED TO SUPPRESS DISTRIBUTION OF ANOTHER ISSUE OF THAT
MAGAZINE.  OTHER CASES WHICH TURNED ON FINDINGS OF NONOBSCENITY OF THIS
TYPE OF MAGAZINE INCLUDE:  CENTRAL MAGAZINE SALES, LTD. V. UNITED
STATES, 389 U.S. 50; CONNER V. CITY OF HAMMOND, 389 U.S. 48; POTOMAC
NEWS CO. V. UNITED STATES, 389 U.S. 47; MAZES V. OHIO, 388 U.S. 453; A
QUANTITY OF BOOKS V. KANSAS, 388 U.S. 452; BOOKS, INC. V. UNITED
STATES, 388 U.S. 449; ADAY V. UNITED STATES, 388 U.S. 447; AVANSINO V.
NEW RYOK, 388 U.S. 446; SHEPERD V. NEW YORK, 388 U.S. 444; FRIEDMAN V.
NEW YORK, 388 U.S. 441; KENEY V. NEW YORK, 338 U.S. 440; SEE ALSO
ROSENBLOOM V. VIRGINIA, 388 U.S. 450; SUNSHINE BOOK CO. V. SUMMERFELD,
355 U.S. 372. 

/4/ PEOPLE V. TANNENBAUM, 18 N.Y.2D 268, 270, 220 N.E.2D 783, 785,
DISMISSED AS MOOT, 388 U.S. 439.  THE CONCEPT OF VARIABLE OBSCENITY IS
DEVELOPED IN LOCKHART & MCCLURE, CENSORSHIP OF OBSCENITY:  THE
DEVELOPING CONSTITUTIONAL STANDARDS, 45 MINNS.L.REV.  5 (1960).  AT 85
THE AUTHORS STATE: 

"VARIABLE OBSCENITY . . . FURNISHES A USEFUL ANALYTICAL TOOL FOR
DEALING WITH THE PROBLEM OF DENYING ADOLESCENTS ACCESS TO MATERIAL
AIMED AT A PRIMARY AUDIENCE OF SEXUALLY MATURE ADULTS.  FOR VARIABLE
OBSCENITY FOCUSES ATTENTION UPON THE MAKE-UP OF PRIMARY AND PERIPHERAL
AUDIENCES IN VARYING CIRCUMSTANCES, AND PROVIDES A REASONABLY
SATISFACTORY MEANS FOR DELINEATING THE OBSCENE IN EACH CIRCUMSTANCE." 
CIRCUMSTANCE. 

/5/  SUGGESTIONS THAT LEGISLATURES MIGHT GIVE ATTENTION TO LAWS
DEALING SPECIFICALLY WITH SAFEGUARDING CHILDREN AGAINST PORNOGRAPHIC
MATERIAL HAVE BEEN MADE BY MANY JUDGES AND COMMENTATORS.  SEE, E.G.,
JACOBELLIS V. OHIO, 378 U.S. 184, 195 (OPINION OF JUSTICES BRENNAN AND
GOLDBERG); ID., AT 201 (DISSENTING OPINION OF THE CHIEF JUSTICE);
GINZBERG V. UNITED STATES, 383 U.S. 463, 498, N. 1 (DISSENTING OPINION
OF MR. JUSTICE STEWART); INTERSTATE CIRCUIT, INC. V. CITY OF DALLAS,
366 F.2D 590, 593; IN RE LOUISIANA NEWS CO., 187 F.SUPP.  241, 247;
UNITED STATES V. LEVINE, 83 F.2D 156; UNITED STATES V. DENNETT, 39 F.2D
564; R. KUH, FOOLISH FIGLEAVES, 258-260 (1967); EMERSON, TOWARD A
GENERAL THEORY OF THE FIRST AMENDMENT, 72 YALE L.J. 877, 939 (1963);
GERBER, A SUGGESTED SOLUTION TO THE RIDDLE OF OBSCENITY, 112
U.PA.L.REV.  834, 848 (1964); HENKIN, MORALS AND THE CONSTITUTION; THE
SIN OF OBSCENITY, 63 COL.L.REV.  391, 413, N. 68 (1963); KALVEN, THE
METAPHYSICS OF THE LAW OF OBSCENITY, 1960 SUP.CT.REV.  1, 7; MAGRATH,
THE OBSCENITY CASES: GRAPES OF ROTH, 1966 SUP.CT.REV.  7, 75. 

THE OBSCENITY LAWS OF 35 OTHER STATES INCLUDE PROVISIONS REFERRING
TO MINORS.  THE LAWS ARE LISTED IN APPENDIX B TO THIS OPINION.  NONE IS
A PRECISE COUNTERPART OF NEW YORK'S SEC. 484-H AND WE IMPLY NO VIEW
WHATEVER QUESTIONS OF THEIR CONSTITUTIONALITY. 

/6/  MANY COMMENTATORS, INCLUDING MANY COMMITTED TO THE PROPOSITION
THAT "(NO GENERAL RESTRICTION ON EXPRESSION IN TERMS OF 'OBSCENITY'
CAN . . . BE RECONCILED WITH THE FIRST AMENDMENT," RECOGNIZE THAT "THE
POWER OF THE STATE TO CONTROL THE CONDUCT OF CHILDREN REACHES BEYOND
THE SCOPE OF ITS AUTHORITY OVER ADULTS," AND ACCORDINGLY ACKNOWLEDGE A
SUPERVENING STATE INTEREST IN THE REGULATION OF LITERATURE SOLD TO
CHILDREN, EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT, 72
YALE L.J. 877, 938, 939 (1963): 

"DIFFERENT FACTOS COME INTO PLAY, ALSO, WHERE THE INTEREST AT STAKE
IS THE EFFECT OF EROTIC EXPRESSION UPON CHILDREN.  THE WORLD OF
CHILDREN IS NOT STRICTLY PART OF THE ADULT REALM OF FREE EXPRESSION. 
THE FACTOR OF IMMATURITY, AND PERHAPS OTHER CONSIDERATIONS, IMPOSE
DIFFERENT RULES.  WITHOUT ATTEMPTING HERE TO FORMULATE THE PRINCIPLES
RELEVANT TO FREEDOM OF EXPRESSION FOR CHILDREN, IT SUFFICES TO SAY THAT
REGULATIONS OF COMMUNICATION ADDRESSED TO THEM NEED NOT CONFORM TO THE
REQUIREMENTS OF THE FIRST AMENDMENT IN THE SAME WAY AS THOSE APPLICABLE
TO ADULTS." 

SEE ALSO GERBER, SUPRA, AT 848; KALVEN, SUPRA, AT 7; MAGRATH, SUPRA,
AT 75.  PRINCE V. MASSACHUSETTS IS URGED TO BE CONSTITUTIONAL AUTHORITY
FOR SUCH REGULATION.  SEE, E.G., KUH, SUPRA, AT 258-260; COMMENT,
EXCLUSION OF CHILDREN FROM VIOLENT MOVIES, 67 COL.L.REV.  1149, 1159
1160 (1967); NOTE, CONSTITUTIONAL PROBLEMS IN OBSCENTIY LEGISLATION
PROTECTING CHILDREN, 54 GEO.L.J. 1379 (1966). 

/7/  ONE COMMENTATOR WHO ARGUES THAT OBSCENITY LEGISLATION MIGHT BE
CONSTITUTIONALLY DEFECTIVE AS AN IMPOSITION OF A SINGLE STANDARD OF
PUBLIC MORALITY WOULD GIVE EFFECT TO THE PARENTAL ROLE AND ACCEPT LAWS
RELATING ONLY TO MINORS.  HENKIN, MORALS AND THE CONSTITUTION:  THE SIN
OF OBSCENITY, 63 COL.L.REV.  391, 413, N. 68 (1963):     "ONE MUST
CONSIDER ALSO HOW MUCH DIFFERENCE IT MAKES IF LAWS ARE DESIGNED TO
PROTECT ONLY THE MORALS OF A CHILD.  WHILE MANY OF THE CONSTITUTIONAL
ARGUMENTS AGAINST MORALS LEGISLATION APPLY EQUALLY TO LEGISLATION
PROTECTING THE MORALS OF CHILDREN, ONE CAN WELL DISTINGUISH LAWS WHICH
DO NOT IMPOSE A MORALITY ON CHILDREN, BUT WHICH SUPPORT THE RIGHT OF
PARENTS TO DEAL WITH THE MORALS OF THEIR CHILDREN AS THEY SEE FIT." 

SEE ALSO ELIAS, SEX PUBLICATIONS AND MORAL CORRUPTION:  THE SUPREME
COURT DILEMMA, 9 WM. & MARY L. REV. 302, 320-321 (1967).     /8/
COMPARE MEMOIRS V. MASSACHUSETTS, 383 U.S., AT 424 (OPINION OF DOUGLAS,
J.)  WITH ID., AT 441 (OPINION OF CLARK, J.).  SEE KUH, SUPRA, CC. 18
19; GAYLIN, BOOK REVIEW, 77 YALE L.J. 579, 591-595 (1968); MAGRATH,
SUPRA, AT 52. 

/9/  OUR CONCLUSION IN ROTH, AT 486-487, THAT THE CLEAR AND PRESENT
DANGER TEST WAS IRRELEVANT TO THE DETERMINATION OF OBSCENITY MADE IT
UNNECESSARY IN THAT CASE TO CONSIDER THE DEBATE AMONG THE AUTHORITIES
WHETHER EXPOSURE TO PORNOGRAPHY CAUSED ANTISOCIAL CONSEQUENCES.  SEE
ALSO MISHKIN V. NEW YORK, SUPRA; GINZBERG V. UNITED STATES, SUPRA;
MEMOIRS V. MASSACHUSETTS, SUPRA. 

/10/  MAGRATH, SUPRA, AT 52.  SEE, E.G., ID., AT 49-56; DIBBLE,
OBSCENITY: A STATE QUARANTINE TO PROTECT CHILDREN, 39 SO.CAL.L.REV. 
345 (1966); WALL, OBSCENITY AND YOUTH:  THE PROBLEM AND A POSSIBLE
SOLUTION, CRIM. L. BULL., VOL. 1, NO. 8, PP. 28-30 (1965); NOTE, 55
CAL.L.REV.  926, 934 (1967); COMMENT, 34 FORD.L.REV.  692, 694 (1966). 
SEE ALSO J. PAUL & M. SCHWARTZ, FEDERAL CENSORHSIP:  OBSCENITY IN THE
MAIL, 191-192; BLAKEY, BOOK REVIEW, 41 NOTRE DAME LAW.  1055, 1060, N.
46 (1966); GREEN, OBSCENITY, CENSORSHIP, 6 AND JUVENILE DELINQUENCY, 14
U.TORONTO L.REV.  229, 246 (1962); LOCKHART & MCCLURE, LITERATURE, THE
LAW OF OBSCENITY, AND THE CONSTITUTION, 38 MINN.L.REV.  295, 373-385
(1954); NOTE, 52 KY.L.J. 429, 447 (1964).  BUT DESPITE THE VIGOR OF THE
ONGOING CONTROVERSY WHETHER OBSCENE MATERIAL WILL PERCEPTIBLY CREATE A
DANGER OF ANTISOCIAL CONDUCT, OR WILL PROBABLY INDUCE ITS RECIPIENTS TO
SUCH CONDUCT, A MEDICAL PRACTITIONER RECENTLY SUGGESTED THAT THE
POSSIBILITY OF HARMFUL EFFECTS TO YOUTH CANNOT BE DISMISSED AS
FRIVOLOUS.  DR. GAYLIN OF THE COLUMBIA UNIVERSITY PSYCHOANALYTIC
CLINIC, REPORTING ON THE VIEWS OF SOME PSYCHIATRISTS IN 77 YALE L.J.,AT
592-593, SAID: 

"IT IS IN THE PERIOD OF GROWTH (OF YOUTH) WHEN THESE PATTERNS OF
BEHAVIOR ARE LAID DOWN, WHEN ENVIRONMENTAL STIMULI OF ALL SORTS MUST BE
INTEGRATED INTO A WORKABLE SENSE OF SELF, WHEN SENSUALITY IS BEING
DEFINED AND FEARS ELABORATED, WHEN PLEASURE CONFRONTS SECURITY AND
IMPULSE ENCOUNTERS CONTROL-- IT IS IN THIS PERIOD, UNDRAMATICALLY AND
WITH TIME, THE LEGALIZED PORNOGRAPHY MAY CONCEIVABLY BE DAMAGING." 

DR. GAYLIN EMPHASIZES THAT A CHILD MIGHT NOT BE AS WELL PREPARED AS
AN ADULT TO MAKE AN INTELLIGENT CHOICE AS TO THE MATERIAL HE CHOOSES TO
READ: 

(PSYCHIATRISTS . . . MADE A DISTINCTION BETWEEN THE READING OF
PORNOGRAPHY, AS UNLIKELY TO BE PER SE HARMFUL, AND THE PERMITTING OF
THE READING OF PORNOGRAPHY WHICH WAS CONCEIVED AS POTENTIALLY
DESTRUCTIVE.  THE CHILD IS PROTECTED IN HIS READING OF PORNOGRAPHY,
WHICH WAS CONCEIVED AS POTENTIALLY DESTRUCTIVE.  THE CHILD IS PROTECTED
IN HIS READING OF PORNOGRAPHY BY THE KNOWLEDGE THAT IT IS PORNOGRAPHIC,
I.E., DISAPPROVED.  IT IS OUTSIDE OF PARENTAL STANDARDS AND NOT A PART
OF HIS INDENTIFICATION PROCESSES.  TO OPENLY PERMIT IMPLIES PARENTAL
APPROVAL AND EVEN SUGGESTS SEDUCTIVE ENCOURAGEMENT.  IF THIS IS SO OF
PARENTAL APPROVAL, IT IS EQUALLY SO OF SOCIETAL APPROVAL-- ANOTHER
POTENT INFLUENCE ON THE DEVELOPING EGO."  ID., AT 594. 

(FOR CONCURRING OPINION OF MR. JUSTICE HARLAN SEE POST, P. 704.) 

        APPENDIX A TO OPINION OF THE COURT. 

NEW YORK PENAL LAW SEC. 484-H AS ENACTED BY L. 1965, C. 327,
PROVIDES: 

SEC. 484-H.  EXPOSING MINORS TO HARMFUL MATERIALS 

1.  DEFINITIONS.  AS USED IN THIS SECTION: 

(A) "MINOR" MEANS ANY PERSON UNDER THE AGE OF SEVENTEEN YEARS. 

(B)"NUDITY" MEANS THE SHOWING OF THE HUMAN MALE OR FEMALE GENITALS,
PUBIC AREA OR BUTTOCKS WITH LESS THAN A FULL OPAQUE COVERING, OR THE
SHOWING OF THE FEMALE BREAST WITH LESS THAN A FULLY OPAQUE COVERING OF
ANY PORTION THEREOF BELOW THE TOP OF THE NIPPLE, OR THE DEPICTION OF
COVERED MALE GENITALS IN A DISCERINIBLY TURGID STATE. 

(C) "SEXUAL CONDUCT" MEANS ACTS OF MASTURBATION, HOMOSEXUALITY,
SEXUAL INTERCOURSE, OR PHYSICAL CONTACT WITH A PERSON'S CLOTHED OR
UNCLOTHED GENITALS, PUBIC AREA, BUTTOCKS OR, IF SUCH PERSON BE A
FEMALE, BREAST. 

(D) "SEXUAL EXCITEMENT" MEANS THE CONDITION OF HUMAN OR FEMALE
GENITALS WHEN IN A STATE OF SEXUAL STIMULATION OR AROUSAL. 

(E) "SADO-MASOCHISTIC ABUSE" MEANS FLAGELLATION OR TORTURE BY OR
UPON A PERSON CLAD IN UNDERGARMENTS, A MASK OR BIZARRE COSTUME, OR THE
CONDITION OF BEING FETTERED, BOUND OR OTHERWISE PHYSICALLY RESTRAINED
ON THE PART OF ONE SO CLOTHED. 

(F) "HARMFUL TO MINORS" MEANS THAT QUALITY OF ANY DESCRIPTION OR
REPRESENTATION, IN WHATEVER FORM, OF NUDITY, SEXUAL CONDUCT, SEXUAL
EXCITEMENT, OR SADO-MASOCHISTIC ABUSE, WHEN IT: 

(I) PREDOMINANTLY APPEALS TO THE PRURIENT, SHAMEFUL OR MORBID
INTEREST OF MINORS, AND 

(II) IS PATENTLY OFFENSIVE TO PREVAILING STANDARDS IN THE ADULT
COMMUNITY AS A WHOLE WITH RESPECT TO WHAT IS SUITABLE MATERIAL FOR
MINORS, AND 

(III) IS UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE FOR MINORS. 

(G) "KNOWINGLY" MEANS HAVING GENERAL KNOWLEDGE OF, OR REASON TO
KNOW, OR A BELIEF OR GROUND FOR BELIEF WHICH WARRANTS FURTHER
INSPECTION OR INQUIRY OF BOTH: 

(I) THE CHARACTER AND CONTENT OF ANY MATERIAL DESCRIBED HEREIN WHICH
IS REASONABLY SUSCEPTIBLE OF EXAMINATION BY THE DEFENDANT, AND 

(II) THE AGE OF THE MINOR, PROVIDED HOWEVER, THAT AN HONEST MISTAKE
SHALL CONSTITUTE AN EXCUSE FROM LIABILITY HEREUNDER IF THE DEFENDANT
MADE A REASONABLE BONA FIDE ATTEMPT TO ASCERTAIN THE TRUE AGE OF SUCH
MINOR. 

2.  IT SHALL BE UNLAWFUL FOR ANY PERSON KNOWINGLY TO SELL OR LOAN
FOR MONETARY CONSIDERATION TO A MINOR: 

(A) ANY PICTURE, PHOTOGRAPH, DRAWING, SCULPTURE, MOTION PICTURE
FILM, OR SIMILAR VISUAL REPRESENTATION OR IMAGE OF A PERSON OR PORTION
OF THE HUMAN BODY WHICH DEPICTS NUDITY, SEXUAL CONDUCT OR SADO
MASOCHISTIC ABUSE AND WHICH IS HARMFUL TO MINORS, OR 

(B) ANY BOOK, PAMPHLET, MAGAZINE, PRINTED MATTER HOWEVER REPRODUCED,
OR SOUND RECORDING WHICH CONTAINS ANY MATTER ENUMERATED IN PARAGRAPH
(A) OF SUBDIVISION TWO HEREOF, OR EXPLICIT AND DETAILED VERBAL
DESCRIPTIONS OR NARRATIVE ACCOUNT OF SEXUAL EXCITEMENT, SEXUAL CONDUCT
OR SADO-MASOCHISTIC ABUSE AND WHICH, TAKEN AS A WHOLE, IS HARMFUL TO
MINORS. 

3.  IT SHALL BE UNLAWFUL FOR ANY PERSON KNOWINGLY TO EXHIBIT FOR A
MONETARY CONSIDERATION TO A MINOR OR KNOWINGLY TO SELL TO A MINOR AN
ADMISSION TICKET OR PASS OR KNOWINGLY TO ADMIT A MINOR FOR A MONETARY
CONSIDERATION TO PREMISES WHEREON THERE IS EXHIBITED, A MOTION PICTURE,
SHOW OR OTHER PRESENTATION WHICH, IN WHOLE OR IN PART, DEPICTS NUDITY,
SEXUAL CONDUCT OR SADO-MASOCHISTIC ABUSE AND WHICH IS HARMFUL TO
MINORS. 

4.  A VIOLATION OF ANY PROVISION SHALL CONSTITUTE A MISDEMEANOR. 

        APPENDIX B TO OPINION OF THE COURT. 

STATE OBSCENITY STATUTES HAVING SOME PROVISION REFERRING TO
DISTRIBUTION TO MINORS ARE: 

CAL. PEN.  CODE SEC. 311-312 (SUPP. 1966); COLO. REV. STAT. ANN.
SEC. 49-9-16 TO 40-9-27 (1963); CONN. GEN. STAT. REV. SEC. 53-243 TO 53
245 (SUPP. 1965); DEL. CODE ANN., TIT. 11, SEC. 435, 711-713 (1953);
FLA. STAT. ANN. SEC. 847.011-847.06 (1965 AND SUPP. 1968); GA. CODE
ANN. SEC. 26-6301 TO 26-6309A (SUPP. 1967); HAWAII REV. LAW SEC. 267-8
(1955); IDAHO CODE ANN. SEC. 18-1506 TO 18-1510 (SUPP. 1967); ILL. ANN.
STAT. C. 38, SEC. 11-20 TO 11-21 (SUPP. 1967); IOWA CODE ANN. SEC.
725.4-725.12 (1950); KE REV. STAT. SEC. 436.100-436.130, 436.540
436.580 (1963 AND SUPP. 1966); LA. REV. STAT. SEC. 14:91.11, 14:92,
14:106 (SUPP. 1967); ME. REV. STAT. ANN., TIT. 17, SEC. 2901-2905
(1964); MD. ANN. CODE, ART. 27, SEC. 417-425 (1957 AND SUPP. 1967);
MASS. GEN. LAWS ANN., C. 272, SEC. 28-33 (1959 AND SUPP. 2968); MICH.
STAT. ANN. SEC. 28-575-28.579 (1954 AND SUPP. 1968); MO. ANN. STAT.
SEC. 563.270-563.310 (1953 AND SUPP. 1967); MONT. REV. CODES ANN. SEC.
94-3601 TO 94-3606 (1947 AND SUPP. 1967); NEB. REV. STAT. SEC. 28
926.09 TO 28-926.10 (1965 CUM. SUPP.); NEV. REV. STAT. SEC. 201.250,
207.180 (1965); N.H. REV. STAT. ANN. SEC. 571-A:1 TO 571-A:5 (SUPP.
1967); N.C. GEN. STATE.  SEC.  14-189 (SUPP. 1967); N.D. CENT. CODE
SEC. 12-21-07 TO 12-21-09 (1960); OHIO REV. CODE ANN. SEC. 2903.10
2903.11, 2905.34-2905.39 (1954 AND SUPP. 1966); OKLA. STAT. ANN., TIT.
21, SEC. 1021-1024, 1032-1039 (1958 AND SUPP. 1967); PA. STAT. ANN.,
TIT. 18, SEC. 3831-3833, 4524 (1963 AND SUPP. 1967); R.I. GEN. LAWS
ANN. SEC. 11-31.1 TO 11-31-10 (1956 AND SUPP. 1967); S.C. CODE ANN.
SEC. 16-414.1 TO 16-421 (1962 AND SUPP. 1967); TEX. PEN.  CODE, ARTS.
526, 527B (1952 AND SUPP. 1967); UTAH CODE ANN. SEC. 76-39-5, 76-39-17
(SUPP. 1967); VT. STAT. ANN., TIT. 13, SEC. 2801-2805 (1959); VA. CODE
ANN. SEC. 18.1-227 TO 18.1-236.3 (1960 AND SUPP. 1966); W.VA. CODE ANN.
SEC. 61-8-11 (1966); WYO. STAT. ANN. SEC. 6-103, 7-148 (1957). 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

A DOCTRINAIRE, KNEE-JERK APPLICATION OF THE FIRST AMENDMENT WOULD,
OF COURSE, DICTATE THE NULLIFICATION OF THIS NEW YORK STATUTE.  /1/
BUT THAT RESULT IS NOT REQUIRED I THINK, IF WE BEAR IN MIND WHAT IT IS
THAT THE FIRST AMENDMENT PROTECTS. 

THE FIRST AMENDMENT GUARANTEES LIBERTY OF HUMAN EXPRESSION IN ORDER
TO PRESERVE IN OUR NATION WHAT MR. JUSTICE HOLMES CALLED A "FREE TRADE
IN IDEAS."  /2/  TO THAT END, THE CONSTITUTION PROTECTS MORE THAN JUST
A MAN'S OF EACH MAN TO DECIDE FOR HIMSELF WHAT HE WILL READ AND TO WHAT
HE WILL LISTEN.  THE CONSTITUTION GUARANTEES, IN SHORT, A SOCIETY OF
FREE CHOICE.  SUCH A SOCIETY PRESUPPOSES THE CAPACITY OF ITS MEMBERS TO
CHOOSE. 

WHEN EXPRESSION OCCURS IN A SETTING WHERE THE CAPACITY TO MAKE A
CHOICE IS ABSENT, GOVERNMENT REGULATION OF THAT EXPRESSION MAY CO-EXIST
WITH AND EVEN IMPLEMENT FIRST AMENDMENT GUARANTEES.  SO IT WAS THAT
THIS COURT SUSTAINED A CITY ORDINANCE PROHIBITING PEOPLE FROM IMPOSING
THEIR OPINIONS ON OTHERS "BY WAY OF SOUND TRUCKS WITH LOUD AND RAUCOUS
NOISES ON CITY STREETS."  /3/  AND SO IT WAS THAT MY BROTHERS BLACK AND
DOUGLAS THOUGHT THAT THE FIRST AMENDMENT ITSELF PROHIBITS A PERSON FROM
FOISTING HIS UNINVITED VIEWS UPON THE MEMBERS OF A CAPTIVE AUDIENCE. 
/4/ 

I THINK A STATE MAY PERMISSIBLY DETERMINE THAT, AT LEAST IN SOME
PRECISELY DELINEATED AREAS, A CHILD /5/-- LIKE SOMEONE IN A CAPTIVE
AUDIENCE-- IS NOT POSSESSED OF THAT FULL CAPACITY FOR INDIVIDUAL CHOICE
WHICH IS THE PRESUPPOSITION OF FIRST AMENDMENT GUARANTEES.  IT IS ONLY
UPON SUCH A PREMISE, I SHOULD SUPPOSE, THAT A STATE MAY DEPRIVE
CHILDREN OF OTHER RIGHTS-- THE RIGHT TO MARRY, FOR EXAMPLE, OR THE
RIGHT TO MARRY, FOR EXAMPLE, OR THE RIGHT TO VOTE-- DEPRIVATIONS THAT
WOULD BE CONSTITUTIONALLY INTOLERABLE FOR ADULTS.  /6/ 

I CANNOT HOLD THAT THIS STATE LAW, ON ITS FACE, /7/  VIOLATES THE
FIRST AND FOURTEENTH AMENDMENTS. 

/1/  THE FIRST AMENDMENT IS MADE APPLICABLE TO THE STATES THROUGH
THE FOURTEENTH AMENDMENT.  STROMBERG V. CALIFORNIA, 283 U.S. 359. 

/2/  ABRAMS V. UNITED STATES, 250 U.S. 616, 630 (DISSENTING
OPINION). 

/3/  KOVACS V. COOPER, 336 U.S. 77, 86. 

/4/  PUBLIC UTILITIES COMM'N V. PLLAK, 343 U.S. 451, 466 (DISSENTING
OPINION OF MR. JUSTICE BLACK), 467 (DISSENTING OPINION OF MR. JUSTICE
DOUGLAS). 

/5/  THE APPELLANT DOES NOT CHALLENGE NEW YORK'S POWER TO DRAW THE
LINE AT AGE 17, AND I INTIMATE NO VIEW UPON THAT QUESTION. 

/6/  COMPARE LOVING V. VIRGINIA, 388 U.S. 1, 12; CARRINGTON V. RASH,
380 U.S. 89, 96. 

/7/  AS THE COURT NOTES, THE APPELLANT MAKES NO ARGUMENT THAT THE
MATERIAL IN THIS CASE WAS NOT "HARMFUL TO MINORS" WITHIN THE STATUTORY
DEFINITION, OR THAT THE STATUTE WAS UNCONSTITUTIONALLY APPLIED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

WHILE I WOULD BE WILLING TO REVERSE THE JUDGMENT ON THE BASIS OF
REDRUP V. NEW YORK, 386 U.S. 767, FOR THE REASONS STATED BY MY BROTHER
FORTAS, MY OBJECTIONS STRIKE DEEPER. 

IF WE WERE IN THE FIELD OF SUBSTANTIVE DUE PROCESS AND SEEKING TO
MEASURE THE PROPRIETY OF STATE LAW BY THE STANDARDS OF THE FOURTEENTH
AMENDMENT, I SUPPOSE THERE WOULD BE NO DIFFICULTY UNDER OUR DECISIONS
IN SUSTAINING THIS ACT.  FOR THERE IS A VIEW HELD BY MANY THT THE SO
CALLED "OBSCENE" BOOK OR TRACT OR MAGAZINE HAS A DELETERIOUS EFFECT
UPON THE YOUNG, ALTHOUGH I SERIOUSLY DOUBT THE WISDOM OF TRYING BY LAW
TO PUT THE FRESH, EVANESCENT, NATURAL BLOSSOMING OF SEX IN THE CATEGORY
OF "SIN." 

THAT, HOWEVER, WAS THE VIEW OF OUR PRECEPTOR IN THIS FIELD, ANTHONY
COMSTOCK, WHO WAGED HIS WAR AGAINST "OBSCENITY" FROM THE YEAR 1872
UNTIL HIS DEATH IN 1915.  SOME OF HIS VIEWS ARE SET FORTH IN HIS BOOK
TRAPS FOR THE YOUNG, FIRST PUBLISHED IN 1883, EXCERPTS FROM WHICH I SET
OUR IN APPENDIX I TO THIS OPINION. 

THE TITLE OF THE BOOK REFERS TO "TRAPS" CREATED BY SATAN "FOR BOYS
AND GIRLS ESPECIALLY."  COMSTOCK, OF COURSE, OPERATED ON THE THEORY
THAT EVERY HUMAN HAS AN "INBORN TENDENCY TOWARD WRONGDOING WHICH IS
RESTRAINED MAINLY BY FEAR OF THE FINAL JUDGMENT."  IN HIS VIEW ANY BOOK
WHICH TENDED TO REMOVE THAT FEAR IS A PART OF THE "TRAP" WHICH SATAN
CREATED.  HENCE, COMSTOCK WOULD HAVE CONDMENED A MUCH WIDER RANGE OF
LITERATURE THAN THE PRESENT COURT IS APPARENTLY INCLINED TO DO.  /1/ 
IT WAS COMSTOCK WHO WAS RESPONSIBLE FOR THE FEDERAL ANTI-OBSCENITY ACT
OF MARCH 3, 1873.  17 STAT. 598.  IT WAS HE WHO WAS ALSO RESPONSIBILE
FOR THE NEW YORK ACT WHICH SOON FOLLOWED.  HE WAS RESPONSIBLE FOR THE
ORGANIZATION OF THE NEW YORK SOCIETY FOR THE SUPPRESSION OF VICE, WHICH
BY ITS ACT OF INCORPORATION WAS GRANTED ONE-HALF OF THE FINES LEVIED ON
PEOPLE SUCCESSFULLY PROSECUTED BY THE SOCIETY OR ITS AGENTS. 

I WOULD CONCLUDE FROM COMSTOCK AND HIS TRAPS FOR THE YOUNG AND FROM
OTHER AUTHORITIES THAT A LEGISLATURE COULD NOT BE SAID TO BE WHOLLY
IRRATIONAL /2/  (FERGUSON V. SKRUPA, 372 U.S. 726; AND SEE WILLIAMSON
V. LEE OPTICAL CO., 348 U.S. 483; DANIEL V. FAMILY INS. CO., 336 U.S.
220; OLSEN V. NEBRASKA, 313 U.S. 236) IF IT DECIDED THAT SALE OF
"OBSCENE" MATERIAL TO THE YOUNG SHOULD BE BANNED. 

THE PROBLEM UNDER THE FIRST AMENDMENT, HOWEVER, HAS ALWAYS SEEMED TO
ME TO BE QUITE DIFFERENT.  FOR ITS MANDATE (ORIGINALLY APPLICABLE ONLY
TO THE FEDERAL GOVERNMENT BUT NOW APPLICABLE TO THE STATES AS WELL BY
REASON OF THE FOURTEENTH AMENDMENT) IS DIRECTED TO ANY LAW "ABRIDGING
THE FREEDOM OF SPEECH, OR OF THE PRESS."  I APPRECIATE THAT THERE ARE
THOSE WHO THINK THAT "OBSCENITY" IS IMPLIEDLY EXCLUDED; BUT I HAVE
INDICATED ON PRIOR OCCASIONS WHY I HAVE BEEN UNABLE TO REACH THAT
CONCLUSION.  /4/  SEE GINZBURG V. UNITED STATES, 383 U.S. 463, 482
(DISSENTING OPINION); JACOBELLIS V. OHIO, 378 U.S. 184, 196 (CONCURRING
OPINION OF MR. JUSTICE BALCK); ROTH V. UNITED STATES, 354 U.S. 476, 508
(DISSENTING OPINION).  AND THE COROLLARY OF THAT VIEW, AS I EXPRESSED
IT IN PUBLIC UTILITIES COMM'N V. POLLACK, 343 U.S. 451, 467, 468
(DISSENTING OPINION), IS THAT BIG BROTHER CAN NO MORE SAY WHAT A PERSON
SHALL LISTEN TO OR READ THAN HE CAN SAY WHAT SHALL BE PUBLISHED. 

THIS IS NOT TO SAY THAT THE COURT AND ANTHONY COMSTOCK ARE WRONG IN
CONCLUDING THAT THE KIND OF LITERATURE NEW YORK CONDEMNS DOES HARM.  AS
A MATTER OF FACT, THE NOTION OF CENSORSHIP IS FOUNDED ON THE BELIEF
THAT SPEECH AND PRESS SOMETIMES DO HARM AND THEREFORE CAN BE
REGULATED.  I ONCE VISITED A FOREIGN NATION WHERE THE REGIME OF
CENSORSHIP WAS SO STRICT THAT ALL I COULD FIND IN THE BOOKSTALLS WERE
TRACTS ON RELIGION AND TRACTS ON MATHEMATICS.  TODAY THE COURT
DETERMINES THE CONSTITUTIONALLY OF NEW YORK'S LAW REGULATING THE SALE
OF LITERATURE TO CHILDREN ON THE BASIS OF THE REASONABLENESS OF THE LAW
IN LIGHT OF THE WELFARE OF THE CHILD.  IF THE PROBLEM OF STATE AND
FEDERAL REGULATION OF "OBSCENITY" IS IN THE FIELD OF SUBSTANTIVE DUE
PROCESS, I SEE NO REASON TO LIMIT THE LEGISLATURES TO PROTECTING
CHILDREN ALONE.  THE "JUVENILE DELINQUENTS" I HAVE KNOWN ARE MOSTLY
OVER 50 YEARS OF AGE.  IF RATIONALITY IS THE MEASURE OF THE VALIDITY OF
THIS LAW, THEN I CAN SEE HOW MODERN ANTHONY COMSTOCKS COULD MAKE OUT A
CASE FOR "PROTECTING"  MANY GROUPS IN OUR SOCIETY, NOT MERELY
CHILDREN. 

WHILE I FIND THE LITERATURE AND MOVIES WHICH COME TO US FOR
CLEARANCE EXCEEDINGLY DULL AND BORING, I UNDERSTAND HOW SOME CAN AND DO
BECOME VERY EXCITED AND ALARMED TO THINK THAT SOMETHING SHOULD BE DONE
TO STOP THE FLOW.  IT IS ONE THING FOR PARENTS /5/  AND THE RELIGIOUS
ORGANIZATIONS TO BE ACTIVE AND INVOLVED.  IT IS QUITE A DIFFERENT
MATTER FOR THE STATE TO BECOME IMPLICATED AS A CENSOR.  AS I READ THE
FIRST AMENDMENT, IT WAS DESIGNED TO KEEP THE STATE AND THE HANDS OF ALL
STATE OFFICIALS OFF THE PRINTING PRESSES OF AMERICA AND OFF THE
DISTRIBUTION SYSTEMS FOR ALL PRINTED LITERATURE.  ANTHONY COMSTOCK
WANTED IT THE OTHER WAY; HE INDEED PUT THE POLICE AND PROSECUTOR IN THE
MIDDLE OF THIS PUBLISHING BUSINESS. 

I THINK IT WOULD REQUIRE A CONSTITUTIONAL AMENDMENT TO ACHIEVE THAT
RESULT.  IF THERE WERE A CONSTITUTIONAL AMENDMENT, PERHAPS THE PEOPLE
OF THE COUNTRY WOULD COME UP WITH SOME NATIONAL BOARD OF CENSORSHIP. 
CENSORS ARE, OF COURSE, PROPELLED BY THEIR OWN NEUROSES.  /6/  THAT IS
WHY A UNIVERSALLY ACCEPTED DEFINITION OF OBSCENITY IS IMPOSSIBLE.  ANY
DEFINITION IS INDEED HIGHLY SUBJECTIVE, TURNING ON THE NEUROSIS OF THE
CENSOR.  THOSE WHO HAVE A DEEP-SEATED, SUBCONSCIOUS CONFLICT MAY WELL
BECOME EITHER GREAT CRUSADERS AGAINST A PARTICULAR KIND OF LITERATURE
OR AVID CUSTOMERS OF IT.  /7/  THAT, OF COURSE, IS THE DANGER OF
LETTING ANY GROUP OF CITIZENS BE THE JUDGES OF WHAT OTHER PEOPLE, YOUNG
OR OLD, SHOULD READ.  THOSE WOULD BE ISSUES TO BE CANVASSED AND DEBATED
IN CASE OF A CONSTITUTIONAL AMENDMENT CREATING A REGIME OF CENSORSHIP
IN THE COUNTRY.  AND IF THE PEOPLE, IN THEIR WISDOM, LAUNCHED US ON
THAT COURSE, IT WOULD BE CONSIDERED CHOICE. 

TODAY THIS COURT SITS AS THE NATION'S BOARD OF CENSORS.  WITH ALL
RESPECT, I DO NOT KNOW OF ANY GROUP IN THE COUNTRY LESS QUALIFIED
FIRST, TO KNOW WHAT OBSCENITY IS WHEN THEY SEE IT, AND SECOND TO HAVE
ANY CONSIDERED JUDGMENT AS TO WHAT THE DELETERIOUS OR BENEFICIAL IMPACT
OF A PARTICULAR PUBLICATION MAY BE ON MINDS EITHER YOUNG OR OLD. 

I WOULD AWAIT A CONSTITUTIONAL AMENDMENT THAT AUTHORIZED THE MODERN
ANTHONY COMSTOCKS TO CENSOR LITERATURE BEFORE PUBLISHERS, AUTHORS, OR
DISTRIBUTORS CAN BE FINED OR JAILED FOR WHAT THEY PRINT AND SELL. 

/1/  TWO WRITERS HAVE EXPLAINED COMSTOCK AS FOLLOWS: 

"HE MUST HAVE KNOWN THAT HE COULD NOT WALL OUT FROM HIS MIND ALL
EROTIC FANCIES, AND SO HE TURNED ALL THE MORE FIERCELY UPON THE
RIBALDRY OF OTHERS."  H. BROUN & M. LEECH, ANTHONY COMSTOCK 27 (1927). 

A NOTABLE FORERUNNER OF COMSTOCK WAS AN ENGLISHMAN, THOMAS BOWDLER. 
ARMED WITH A TALENT FOR DISCOVERING THE "OFFENSIVE," BOWDLER EXPURGATED
SHAKESPEARE'S PLAYS AND GIBBON'S HISTORY OF THE DECLINE AND FALL OF THE
ROMAN EMPIRE.  THE RESULT WAS "THE FAMILY SHAKESPEARE," FIRST PUBLISHED
IN 10 VOLUMES IN 1818, AND A VERSION OF GIBBON'S FAMILY HISTORY
"OMITTING EVERYTHING OF AN IMMORAL OR IRRELIGIOUS NATURE, AND
INCIDENTALLY REARRANGING THE ORDER OF CHAPTERS TO BE IN THE STRICT
CHRONOLOGY SO DEAR TO THE OBSESSIONAL HEART."  M. WILSON, THE
OBSESSIONAL COMPROMISE, A NOTE ON THOMAS BOWDLER (1965) (PAPER IN
LIBRARY OF THE AMERICAN PSYCHIATRIC ASSOCIATION, WASHINGTON, D.C.). 

/2/  "THE EFFECTIVENESS OF MORE SUBTLE FORMS OF CENSORSHIP AS AN
INSTRUMENT OF SOCIAL CONTROL CAN BE VERY GREAT.  THEY ARE EFFECTIVE
OVER A WIDER FIELD OF BEHAVIOR THAN IS PROPAGANDA IN THAT THEY AFFECT
CONVIVIAL AND 'PURELY PERSONAL' BEHAVIOR. 

"THE PRINCIPLE IS THAT CERTAIN VERBAL FORMULAE SHALL NOT BE STATED,
IN PRINT OR IN CONVERSATION; FROM THIS THE RESTRICTION EXTENDS TO THE
DISCUSSION OF CERTAIN TOPICS.  A PERHAPS QUITE RATIONALLY FORMULATED
TABOO IS IMPOSED; IT BECOMES A QUASI-RELIGIOUS FACTOR FOR THE MEMBERS
OF THE GROUP WHO SUBSCRIBE TO IT.  IF THEY ARE A MAJORITY, AND THE
TABOO DOES NOT AFFECT SOME MASTER-SYMBOL OF AN INFLUENTIAL MINORITY, IT
IS APT TO BECOME QUITE UNIVERSAL IN ITS EFFECT.  A GREAT NUMBER OF
TABOOS-- TO EXPRESSIVE AND TO OTHER ACTS-- ARE EMBODIED IN THE MORES OF
ANY PEOPLE.  THE SANCTION BEHIND EACH TABOO LARGELY DETERMINES ITS
DURABILITY-- IN THE SENSE OF RESISTANCE OPPOSED TO THE DEVELOPMENT OF
CONTRADICTORY COUNTER-MORES, OR OF SIMPLE DISINTEGRATION FROM FAILURE
TO GIVE RETURNS IN PERSONAL SECURITY.  IF IT IS TO SUCCEED FOR A LONG
TIME, THERE MUST BE RECURRENT REAFFIRMATIONS OF THE TABOO IN CONNECTION
WITH THE SANCTIONING POWER. 

"THE OCCASIONAL CIRCULATION OF STORIES ABOUT A BREACH OF THE TABOO
AND THE EVIL CONSEQUENCES THAT FLOWED FROM THIS TO THE OFFENDER AND TO
THE PUBLIC CAUSE (THE SANCTIONING POWER) WELL SERVES THIS PURPOSE. 
CENSORSHIP OF THIS SORT HAS THE COLOR OF VOLUNTARY ACCEPTANCE OF A
RITUALISTIC AVOIDANCE, IN BEHALF OF ONESELF AND THE HIGHER POWER.  A
VIOLATION, AFTER THE PRIMITIVE PATTERNS TO WHICH WE HAVE ALL BEEN
EXPOSED, STRIKES AT BOTH THE SINNER AND HIS GOD."  THE WILLIAM ALANSON
WHITE PSYCHIATRIC FOUNDATION MEMORANDUM:  PROPOGANDA & CENSORSHIP, 3
PSYCHIATRY 628, 631 (1940). 

/3/  AND SEE GAYLIN, BOOK REVIEW:  THE PRICKLY PROBLEMS OF
PORNOGRAPHY, 77 YALE L.J. 579, 594. 

/4/ MY BROTHER HARLAN SAYS THAT NO OTHER JUSTICE OF THIS COURT, PAST
OR PRESENT, HAS EVER "STATED HIS ACCEPTANCE" OF THE VIEW THAT
OBSCENITY" IS WITHIN THE PROTECTION OF THE FIRST AND FOURTEENTH
AMENDMENTS.  POST, AT 705.  THAT OBSERVATION, HOWEVER, SHOULD NOT BE
UNDERSTOOD AS DEMONSTRATING THAT NO OTHER MEMBERS OF THIS COURT, SINCE
ITS FIRST TERM IN 1790, HAVE ADHERED TO THE VIEW OF MY BROTHER BLACK
AND MYSELF.  FOR THE ISSUE "WHETHER OBSCENITY IS UTTERANCE WITHIN THE
AREA OF PROTECTED SPEECH AND PRESS" WAS ONLY "SQUARELY PRESENTED" TO
THIS COURT FOR THE FIRST TIME IN 1957.  ROTH V. UNITED STATES, 354 U.S.
476, 481.  THIS IS INDEED UNDERSTANDABLE, FOR THE STATE LEGISLATURES
HAVE BORNE THE MAIN BURDEN IN ENACTING LAWS DEALING WITH "OBSCENITY";
AND THE STRICTURES OF THE FIRST AMENDMENT WERE NOT APPLIED TO THEM
THROUGH THE FOURTEENTH UNTIL COMPARATIVELY LATE IN OUR HISTORY.  IN
GITLOW V. NEW YORK, 268 U.S. 652, DECIDED IN 1925, THE COURT ASSUMED
THAT THE RIGHT OF FREE SPEECH WAS AMONG THE FREEDOMS PROTECTED AGAINST
STATE INFRINGEMENT BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  SEE ALSO WHITNEY V. CALIFORNIA, 274 U.S. 357, 371, 373;
FISKE V. KANSAS, 274 U.S. 380.  IN 1931, STROMBERG V. CALIFORNIA, 283
U.S. 359, HELD THAT THE RIGHT OF FREE SPEECH WAS GUARANTEED IN FULL
MEASURE BY THE FOURTEENTH AMENDMENT.  BUT EVEN AFTER THESE EVENTS
"OBSCENITY" CASES WERE NOT INUNDATING THIS COURT; AND EVEN AS LATE AS
1948, THE COURT COULD SAY THAT IN MANY STATE OBSCENITY STATUTES HAD
"LAIN DORMANT FOR DECADES."  WINTERS V. NEW YORK, 333 U.S. 507, 511. 
IN SEVERAL CASES PRIOR TO ROTH, THE COURT REVIEWED CONVICTIONS UNDER
FEDERAL STATUTES FORBIDDING THE SNEDING OF "OBSCENE" MATERIALS THROUGH
THE MAILS.  BUT IN NONE OF THESE CASES WAS THE QUESTION SQUARELY
PRESENTED OR DECIDED WHETHER "OBSCENTIY" WAS PROTECTED SPEECH UNDER THE
FIRST AMENDMENT; RATHER, THE ISSUES WERE LIMITED TO MATTERS OF
STATUTORY CONSTRUCTION, OR QUESTIONS OF PROCEDURE, SUCH AS THE
SUFFICIENCY OF THE INDICTMENT.  SEE UNITED STATES V. CHASE, 135 U.S.
255; GRIMM V. UNITED STATES, 156 U.S. 604; ROSEN V. UNITED STATES, 161
U.S. 29; SWEARINGEN V. UNITED STATE, 161 U.S. 486; BARTELL V. UNITED
STATES, 227 U.S. 427; DYSART V. UNITED STATES, 272 U.S. 655; UNITED
STATES V. LIMEHOUSE, 285 U.S. 424.  THUS, ROTH V. UNITED STATES, SUPRA,
WHICH INVOLVED BOTH A CHALLENGE TO 18 U.S.C. 1461 (PUNISHING THE
MAILING OF "OBSCENE" MATERIAL) AND, IN A CONSOLIDATED CASE (ALBERTS V.
CALIFORNIA), AN ATTACK UPON CAL.PEN.CODE SEC. 311 (PROHIBITING, INTER
ALIA, THE KEEPING FOR SALE OR ADVERTISING OF "OBSCENE" MATERIAL), WAS
THE FIRST CASE AUTHORITATIVELY TO MEASURE FEDERAL AND STATE OBSCENITY
STATUTES AGAINST THE PROHIBITIONS OF THE FIRST AND FOURTEENTH
AMENDMENTS.  I CANNOT SPEAK FOR THOSE WHO PRECEDED US IN TIME; BUT
NEITHER CAN I INTERPRET OCCASIONAL UTTERANCES SUGGESTING THAT
"OBSCENITY" WAS NOT PROTECTED BY THE FIRST AMENDMENT AS CONSIDERED
EXPRESSIONS OF THE VIEWS OF ANY PARTICULAR JUSTICES OF THE COURT.  SEE,
E.G., CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571-572; BEAUHARNAIS
V. ILLINOIS, 343 U.S. 250, 266.  THE MOST THAT CAN BE SAID, THEN, IS
THAT NO OTHER MEMBERS OF THIS COURT SINCE 1957 HAVE ADHERED TO THE VIEW
OF MY BROTHER BLACK AND MYSELF. 

/5/  SEE APPENDIX II TO THIS OPINION. 

/6/  REVEREND FR. JUAN DE CASTANIZA OF THE 16TH CENTURY EXPLAINED
THOSE WHO DENOUNCED OBSCENITY AS EXPRESSLY ONLY THEIR OWN FEELINGS.  IN
HIS VIEW THEY HAD TOO MUCH REASON TO SUSPECT THEMSELVES OF BEING
"OBSCENE," SINCE "VACIOUS MEN ARE ALWAYS PRONE TO THINK OTHERS LIKE
THEMSELVES."  T. SCHROEDER, A CHALLENGE TO SEX CENSORS 44-45 (1938). 

"OBSCENITY, LIKE WITCHCRAFT . . . CONSISTS, BROADLY SPEAKING, OF A
(DELUSIONAL) PROJECTION OF CERTAIN EMOTIONS (WHICH, AS THE VERY WORD
IMPLIES, EMANATE FROM WITHIN) TO EXTERNAL THINGS AND AN ENDOWMENT OF
SUCH THINGS (OR IN THE CASE OF WITCHCRAFT, OF SUCH PERSONS) WITH THE
MORAL QUALITIES CORRESPONDING TO THESE INWARD STATES . . . . 

"THUS PERSONS RESPONSIBLE FOR THE PERSISTENT ATTEMPTS TO SUPPRESS
THE DISSEMINATION OF POPULAR KNOWLEDGE CONCERNING SEX MATTERS BETRAY
THEMSELVES UNWITTINGLY AS THE BEARERS OF THE VERY IMPULSES THEY WOULD
SO OSTENTATIOUSLY HELP OTHERS TO AVOID.  SUCH PERSONS SHOULD KNOW
THROUGH THEIR OWN EXPERIENCE THAT IGNORANCE OF A SUBJECT DOES NOT
INSURE IMMUNITY AGAINST THE EVILS OF WHICH IT TREATS, NOR DOES THE
PROPITIATORY ACT OF NOISY PUBLIC DISAPPROVAL OF CERTAIN EVILS SIGNIFY
INNOCENCE OR PERSONAL PURITY."  VANTESLAAR, BOOK REVIEW, 8 J.ABNORMAL
PSYCHOLOGY 282, 286 (1913). 

/7/  SEE APPENDIX III TO THIS OPINION. 

APPENDIX I TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING. 

A. COMSTOCK, TRAPS FOR THE YOUNG 20-22 (1883). 

AND IT CAME TO PASS THAT AS SATAN WENT TO AND FRO UPON THE EARTH,
WATCHING HIS TRAPS AND REJOICING OVER HIS NUMEROUS VICTIMS, HE FOUND
ROOM FOR IMPROVEMENT IN SOME OF HIS SCHEMES.  THE DAILY PRESS DID NOT
MEET ALL HIS REQUIREMENTS.  THE WEEKLY ILLUSTRATED PAPERS OF CRIME
WOULD DO FOR YOUNG MEN AND SPORTS, FOR BROTHELS, GIN-MILLS, AND
THIEVES' RESORTS, BUT WERE FOUND TO BE SO GROSS, SO LIBIDOUS, SO
MONSTROUS, THAT EVERY DECENT PERSON SPUREND THEM.  THEY WERE EXCLUDED
FROM THE HOME ON SIGHT.  THEY WERE TOO HIGH-PRICED FOR CHILDREN, AND
TOO CUMBERSOME TO BE CONVENIENTLY HID FROM THE PARENT'S EYE OR CARRIED
IN THE BOY'S POCKET.  SO HE RESOLVED TO MAKE ANOTHER TRAP FOR BOYS AND
GIRLS ESPECIALLY. 

HE ALSO RESOLVED TO MAKE THE MOST OF THESE VILE ILLUSTRATED WEEKLY
PAPERS, BY LINING THE NEWS-STANDS AND SHOP-WINDOWS ALONG THE PATHWAY OF
THE CHILDREN FROM HOME TO SCHOOL AND CHURCH, SO THAT THEY COULD NOT GO
TO AND FROM THESE PLACES OF INSTRUCTION WITHOUT GIVING HIM OPPORTUNITY
TO DEFILE THEIR PURE MINDS BY FLAUNTING THESE ATROCITIES BEFORE THEIR
EYES. 

AND SATAN REJOICED GREATLY THAT PROFESSING CHRISTIANS WERE SILENT
AND APPARENTLY ACQUIESCED IN HIS PLANS.  HE FOUND THAT OUR MOST REFINED
MEN AND WOMEN WENT FREELY TO TRADE WITH PERSONS WHO DISPLAYED THESE
TRAPS FOR SALE; THAT FEW, IF ANY, HAD MORAL COURAGE TO ENTER A PROTEST
AGAINST THIS PUBLIC DISPLAY OF INDECENCIES, AND SCARCELY ONE IN ALL THE
LAND HAD THE BOLDNESS TO SAY TO THE DEALER IN FILTH, "I WILL NOT GIVE
YOU ONE CENT OF MY PATRONAGE SO LONG AS YOU SELL THESE DEVIL-TRAPS TO
RUIN THE YOUNG."  AND HE WAS PROUD OF PROFESSING CHRISTIANS AND
RESPECTABLE CITIZENS ON THIS ACCOUNT, AND CAUSED HONORABLE MENTION TO
BE MADE OF THEM IN GENERAL ORDER TO HIS IMPS, BECAUSE OF THE QUIET AND
ORDERLY ASSISTANCE THUS RENDERED HIM.     SATAN STIRRED UP CERTAIN OF
HIS WILLING TOOLS ON EARTH BY THE PROMISE OF A FEW PALTRY DOLLARS TO
IMPROVE GREATLY ON THE DEATH-DEALING QUALITY OF THE WEEKLY DEATH-TRAPS,
AND FORTHWITH CAME A SERIES OF NEW SNARES OF FASCINATING CONSTRUCTION,
SMALL AND TEMPTING IN PRICE, AND BAITED WITH HIGH-SOUNDING NAMES. 
THESE SURE-RUIN TRAPS COMPRISE A LARGE VARIETY OF HALF-DIME NOVELS,
FIVE AND TEN CENT STORY PAPERS, AND LOW-PRICED PAMPHLETS FOR BOYS AND
GIRLS. 

THIS CLASS INCLUDES THE SILLY, INSIPID TALE, THE COARSE, SLANGY
STORY IN THE DIALECT OF THE BARROOM, THE BLOOK-AND-THUNDER ROMANCE OF
BORDER LIFE, AND THE EXAGGERATED DETAILS OF CRIME, REAL AND IMAGINARY. 
SOME HAVE HIGHLY COLORED SENSAT-ONAL REPORTS OF REAL CRIMES, WHILE
OTHERS, AND BY FAR THE LARGER NUMBER, DEAL WITH MOST IMPROBABLE
CREATIONS OF FICTION.  THE UNREAL FAR OUTSTRIPS THE REAL.  CRIMES ARE
GILDED, AND LAWLESSNESS IS PAINTED TO RESEMBLE VALOR, MAKING A BID FOR
BANDITS, BRIGANDS, MURDERERS, THIEVES, AND CRIMINALS IN GENERAL.  WHO
WOULD GO TO THE STATE PRISON, THE GAMBLING SALOON, OR THE BROTHEL TO
FIND A SUITABLE COMPANION FOR THE CHILD?  YET A MORE INSIDIOUS FOE IS
SELECTED WHEN THESE STORIES ARE ALLOWED TO BECOME ASSOCIATES FOR THE
CHILD'S MIND AND TO SHAPE AND DIRECT THE THOUGHTS. 

THE FINEST FRUITS OF CIVILIZATION ARE CONSUMED BY THESE VERMIN. 
NAY, THESE PRODUCTS OF CORRUPT MINDS ARE THE EGGS FROM WHICH ALL KINDS
OF VILLAINIES ARE HATCHED.  PUT THE ENTIRE BATCH OF THESE STORIES
TOGETHER, AND I CHALLENGE THE PUBLISHERS AND VENDORS TO SHOW A SINGLE
INSTANCE WHERE ANY BOY OR GIRL HAS BEEN ELEVATED IN MORALS, OR WHERE
ANY NOBLE OR REFINED INSTINCT HAS BEEN DEVELOPED BY THEM. 

THE LEADING CHARACTER IN MANY, IF NOT IN THE VEST MAJORITY OF THESE
STORIES, IS SOME BOY OR GIRL WHO POSSESSES USUALLY EXTRAORDINARY BEAUTY
OF COUNTENANCE, THE MOST SUPERB CLOTHING, ABUNDANT WEALTH, THE STRENGTH
OF A GIANT, THE AGILITY OF A SQUIRREL, THE CUNNING OF A FOX, THE BRAZEN
EFFRONTERY OF THE MOST DARING VILLAIN, AND WHO IS UTTERLY DESTITUTE OF
ANY REGARD FOR THE LAWS OF GOD OR MAN.  SUCH A ONE IS FOREMOST AMONG
DESPERADOES, THE COMPANION AND BEAU-IDEAL OF MAIDENS, AND THE HIGH
FAVORITE OF SOME RICH PERSON, WHO BY HIS PATRONAGE AND INDORSEMENT
LIFTS THE YOUNG VILLAIN INTO LOFTY POSITIONS IN SOCIETY, AND PROVIDES
LIBERALLY OF HIS WEALTH TO SECURE HIM IMMUNITY FOR HIS CRIMES.  THESE
STORIES LINK THE PURE MAIDEN WITH THE MOST FOUL AND LOATHSOME
CRIMINALS.  MANY OF THEM FAVOR VIOLATION OF MARRIAGE LAWS AND CHEAPEN
FEMALE VIRTUE. 

        APPENDIX II TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING. 

        A SPECIAL TO THE WASHINGTON POST

     (MARCH 3, 1968)

        BY

        AUSTIN C. WEHRWEIN 

WHITE BEAR LAKE, MINN., MARCH 2.-- FACED WITH THE THREAT OF A LAW
SUIT, THE SCHOOL BOARD IN THIS COMMUNITY OF 12,000 NORTH OF ST. PAUL IS
REVIEWING ITS MANDATORY SEX EDUCATION COURSES, BUT OFFICIALS EXPRESSED
FEAR THAT THEY COULDN'T PLEASE EVERYBODY. 

MOTHERS THREATENED TO PICKET AND KEEP THEIR CHILDREN HOME WHEN SEX
EDUCATION FILMS ARE SCHEDULED.  MRS. ROBERT MURPHY, THE MOTHER OF FIVE
WHO LED THE PROTESTS, CHARGED THAT THE ELEMENTARY SCHOOL "TOOK THE
PRIVACY OUT OF MARRIAGE." 

"NOW," SHE SAID, "OUR KIDS KNOW WHAT A SHUT BEDROOM DOOR MEANS.  THE
PROGRAM IS TAKING THEIR CHILDHOOD AWAY.  THE THIRD GRADERS WENT IN TO
SEE A MOVIE ON BIRTH AND CAME OUT ADULTS." 

SHE SAID SECOND-GRADE GIRLS HAVE TAKEN TO WALKING AROUND WITH "APPLES
AND ORANGES UNDER THEIR BLOUSES."  HER SEVENTH-GRADE SON WAS GIVEN A
STUDY SHEET ON MENSTRUATION, SHE SAID, DEMANDING "WHY SHOULD A SEVENTH
GRADE BOY HAVE TO KNOW ABOUT MENSTRUATION?" 

MRS. MURPHY, WHO FEARS THE PROGRAM WILL LEAD TO EXPERIMENTATION,
SAID THAT IT WAS "PAGAN" AND ARGUED THAT EVEN ANIMALS DON'T TEACH THEIR
YOUNG THOSE THINGS "BEFORE THEY'RE READY." 

"ONE BOY IN OUR BLOCK TOLD HIS MOTHER, 'GUESS WHAT, NEXT OUR
TEACHER'S GONNA TELL US HOW DADDY FERTILIZED YOU,'" REPORTED MRS.
MARTIN CAPEDER.  "THEY DON'T NEED TO KNOW ALL THAT." 

BUT NORMAN JENSEN, PRINCIPAL OF LINCOLN SCHOOL, SAID THAT THE
PROGRAM, WHICH RUNS FROM KINDERGARTEN THROUGH THE 12TH GRADE, WAS
APPROVED BY THE SCHOOL'S DISTRICT'S PTA COUNCIL, THE WHITE BEAR LAKE
MINISTERIAL ASSOCIATION AND THE DISTRICT SCHOOL BOARD.  IT WAS BASED,
HE SAID, ON POOLS THAT SHOWED 80 PER CENT OF THE CHILDREN GOT NO HOME
SEX EDUCATION, AND THE CURRICULUM WAS DESIGNED TO BE "MATTER-OF-FACT." 

THE PROTESTING PARENTS INSISTED THEY HAD NO OBJECTION TO SEX
EDUCATION AS SUCH, BUT SAID SOME GIRLS SHOULD NOT GET IT UNTIL AGE 12,
AND BOYS ONLY AT AGE 15-- "OR WHEN THEY START SHAVING." 

(IN NEARBY ST. PAUL PARK, 71 PARENTS HAVE FORMED A GROUP CALLED
"CONCERNED PARENTS AGAINST SEX EDUCATION" AND ARE PLANNING LEGAL ACTION
TO PREVENT SEX EDUCATION FROM KINDERGARTEN THROUGH SEVENTH GRADE.  THEY
HAVE ALSO ASKED EQUAL TIME WITH THE PTAS OF EIGHT SCHOOLS IN THE
DISTRICT "TO DISCUSS TOPICS SUCH AS MASTURBATION, CONTRACEPTIVES,
UNQUALIFIED INSTRUCTORS, RELIGIOUS BELIEF, MORALITY AND ATTITUDES.") 

THE WHITE BEAR PROTESTERS HAVE PRESENTED THE SCHOOL BOARD WITH A
LIST OF TERMS AND DEFINITIONS DEEMED OBJECTIONABLE.  DESIGNED FOR THE
SEVENTH GRADE, IT INCLUDED VAGINA, CLITORIS, ERECTION, INTERCOURSE AND
COPULATION.  A FILM, CALLED "FERTILIZATION AND BIRTH" DEPICTS A WOMAN
GIVING BIRTH.  IT HAS BEEN MADE OPTIONAL AFTER BEING SHOWN TO ALL
CLASSES. 

MRS. GINNY MCKAY, A PRESIDENT OF ONE OF THE LOCAL PTAS DEFENDED THE
PROGRAM, SAYING "SEX IS A NATURAL AND BEAUTIFUL THING.  WE (THE PTA)
REALIZED THAT THE PARENTS HAD TO GET AROUND TO WHERE THE KIDS HAVE BEEN
FOR A LONG TIME." 

BUT MRS. MURPHY PREDICTED THIS RESULT:  "INSTEAD OF 15 (SIC) AND 15
YEAR-OLD PREGNANT GIRLS, THEY'LL HAVE 12 AND 13-YEAR-OLD PREGNANT
GIRLS." 

        APPENDIX III TO OPINION OF MR. JUSTICE DOUGLAS,
DISSENTING. 

      (A.)  T. SCHROEDER, OBSCENE LITERATURE AND CONSTITUTIONAL

           LAW 277-278 (1911). 

IT THUS APPEARS THAT THE ONLY UNIFYING ELEMENT GENERALIZED IN THE
WORD "OBSCENE," (THAT IS, THE ONLY THING COMMON TO EVERY CONCEPTION OF
OBSCENITY AND INDECENCY), IS SUBJECTIVE, IS AN AFFILIATED EMOTION OF
DISAPPROVAL.  THIS EMOTION UNDER VARYING CIRCUMSTANCES OF TEMPERAMENT
AND EDUCATION IN DIFFERENT PERSONS, AND IN THE SAME PERSON IN DIFFERENT
STAGES OF DEVELOPMENT, IS AROUSED BY ENTIRELY DIFFERENT STIMULI, AND BY
FEAR OF THE JUDGMENT OF OTHERS, AND SO HAS BECOME ASSOCIATED WITH AN
INFINITE VARIETY OF EVER CHANGING OBJECTIVES, WITH NOT EVEN ONE COMMON
CHARACTERISTIC IN OBJECTIVE NATURE; THAT IS, IN LITERATURE OR ACT. 

SINCE FEW MEN HAVE IDENTICAL EXPERIENCES, AND FEW STILL EVOLVE TO AN
AGREEMENT IN THEIR CONCEPTIONAL AND EMOTIONAL ASSOCIATIONS, IT MUST
FOLLOW THAT PRACTICALLY NONE HAVE THE SAME STANDARDS FOR JUDGING THE
"OBSCENE," EVEN WHEN THEIR CONCLUSIONS AGREE.  THE WORD "OBSCENE," LIKE
SUCH WORDS AS DELICATE, UGLY, LOVABLE, HATEFUL, ETC., IS AN ABSTRACTION
NOT BASED UPON A REASONED, NOR SENSE-PERCEIVED, LIKENESS BETWEEN
OBJECTIVES, BUT THE SELECTION OR CLASSIFICATION UNDER IT IS MADE, ON
THE BASIS OF SIMILARITY IN THE EMOTIONS AROUSED, BY AN INFINITE VARIETY
OF IMAGES; AND EVERY CLASSIFICATION THUS MADE, IN TURN, DEPENDS IN EACH
PERSON UPON HIS FEARS, HIS HOPES, HIS PRIOR EXPERIENCE, SUGGESTIONS,
EDUCATION, AND THE DEGREE OF NEURO-SEXUAL OR PSYCHO-SEXUAL HEALTH. 
BECAUSE IT IS A MATTER WHOLLY OF EMOTIONS, IT HAS COME TO BE THAT "MEN
THINK THEY KNOW BECAUSE THEY FEEL, AND ARE FIRMLY CONVINCED BECAUSE
STRONGLY AGITATED." 

THIS, THEN, IS A DEMONSTRATION THAT OBSCENITY EXISTS ONLY IN THE
MINDS AND EMOTIONS OF THOSE WHO BELIEVE IN IT, AND IS NOT A QUALITY OF
A BOOK OR PICTURE.  SINCE, THEN, THE GENERAL CONCEPTION "OBSCENE" IS
DEVOID OF EVERY OBJECTIVE ELEMENT OF UNIFICATION; AND SINCE THE
SUBJECTIVE ELEMENT, THE ASSOCIATED EMOTION, IS INDEFINABLE FROM ITS
VERY NATURE, AND INCONSTANT AS TO THE CHARACTER OFTHE STIMULUS CAPABLE
OF AROUSING IT, AND VARIABLE AND IMMEASURABLE AS TO ITS RELATIVE
DEGREES OF INTENSITY, IT FOLLOWS THAT THE "OBSCENE" IS INCAPABLE OF
ACCURATE DEFINITION OR A GENERAL TEST ADEQUATE TO SECURE UNIFORMITY OF
RESULT, IN ITS APPLICATION BY EVERY PERSON, TO EACH BOOK OF DOUBTFUL
"PURITY". 

BEING SO ESSENTIALLY AND INEXTRICABLY INVOLVED WITH HUMAN EMOTIONS
THAT NO MAN CAN FRAME SUCH A DEFINITION OF THE WORD "OBSCENE," EITHER
IN TERMS OF THE QUALITIES OF A BOOK, OR SUCH THAT, BY IT ALONE, ANY
JUDGMENT WHATEVER IS POSSIBLE, MUCH LESS IT IS POSSIBLE THAT BY ANY
SUCH ALLEGED "TEST" EVERY OTHER MAN MUST REACH THE SAME CONCLUSION
ABOUT THE OBSCENITY OF EVERY CONCEIVABLE BOOK.  THEREFORE, THE SO
CALLED JUDICIAL "TESTS" OF OBSCENITY ARE NOT STANDARDS OF JUDGMENT,
BUT, ON THE CONTRARY, BY EVERY SUCH "TEST" THE RULE OF DECISION IS
ITSELF UNCERTAIN, AND IN TERMS INVOKES THE VARYING EXPERIENCES OFTHE
TESTERS WITHIN THE FOGGY REALM OF PROBLEMATICAL SPECULATION ABOUT
PSYCHIC TENDENCIES, WITHOUT THE HELP OF WHICH THE "TEST" ITSELF IS
MEANINGLESS AND USELESS.  IT FOLLOWS THAT TO EACH PERSON THE "TEST," OF
CRIMINALITY, WHICH SHOULD BE A GENERAL STANDARD OF JUDGMENT,
UNAVOIDABLY BECOMES A PERSONAL AND PARTICULAR STANDARD, DIFFERING IN
ALL PERSONS ACCORDING TO THOSE VARYING EXPERIENCES WHICH THEY READ INTO
THE JUDICIAL "TEST."  IT IS THIS WHICH MAKES UNCERTAIN, AND THEREFORE,
ALL THE MORE OBJECTIONABLE, ALL THE PRESENT LAWS AGAINST OBSCENITY. 
LATER IT WILL BE SHOWN THAT THIS UNCERTAINTY IN THE CRITERIA OF GUILT
RENDERS THESE LAWS UNCONSTITUTIONAL. 

        (B).  KALLEN, THE ETHICAL ASPECTS OF CENSORSHIP, IN 5
SOCIAL

  MEANING OF LEGAL CONCEPTS 34, 50-51 (N.Y.U. 1953). 

TO THIS AUTHORITARIAN'S WILL, DIFFERENCE IS THE SAME THING AS
INFERIORITY, WICKEDNESS AND CORRUPTION; HE CAN APPREHEND IT ONLY AS A
DEVOTION TO ERROR AND A COMMITMENT TO SIN.  HE CAN ACKNOWLEDGE IT ONLY
IF HE ATTRIBUTES TO IT MORAL TURPITUDE AND INTELLECTUAL VICE.  ABOVE
ALL, DIFFERENCE MUST BE FOR HIM, BY ITS SIMPLE EXISTENCE, AN AGRESSION
AGAINST THE GOOD, THE TRUE, THE BEAUTIFUL AND THE RIGHT.  HIS
IMPERATIVE IS TO DESTROY IT; IF HE CANNOT DESTROY IT, TO CONTAIN IT; IF
HE CANNOT CONTAIN IT, TO HUNT IT DOWN, CUT IF OFF AND SHUT IT OUT. 

CERTAIN SCHOOLS OF PSYCHOLOGY SUGGEST THAT THIS AGRESSION IS NEITHER
SIMPLE NOR WHOLLY AGRESSION.  THEY SUGGEST THAT IT EXPRESSES A
COMPULSIVE NEED TO BRING TO OPEN CONTEMPLATION THE SECRET PARTS OF THE
CENSOR'S PSYCHOSOMATIC PERSONALITY, AND A NOT LESS POTENT NEED TO KEEP
THE SECRET AND NOT SUFFER THE SHAMEFACED DISHONOR OF THEIR NAKED
EXPOSURES.  THE CENSOR'S ACTIVITIES, IN THAT THEY CALL FOR A CONSTANT
PUBLIC PREOCCUPATION WITH SUCH SECRET PARTS, FREE HIS PSYCHE FROM THE
PENALTIES OF SUCH CONCERN WHILE TRANSVALUING AT THE SAME TIME HIS
PURSUIT AND INSPECTION OF THE OBSCENE, THE INDECENT, THE PORNOGRAPHIC,
THE BLASPHEMOUS AND THE OTHERWISE SHAMEFUL INTO AN HONORABLE DEFENSE OF
THE PUBLIC MORALS.  THE CENSOR, BY PURPORTING, QUITE UNCONSCIOUS OF HIS
ACTUAL DYNAMIC, TO PROTECT THE YOUNG FROM CORRUPTION, FREES HIS
CONSCIOUSNESS TO DWELL UPON CORRUPTION WITHOUT SHAME OR DISHONOR. 
THUS, ANTHONY COMSTOCK COULD SAY WITH OVERT SINCERITY:  "WHEN THE
GENIUS OF THE ARTS PRODUCES OBSCENE, LEWD AND LASCIVIOUS IDEAS, THE
DEADLY EFFECT UPON THE YOUNG IS JUST AS PERCEPTIBLE AS WHEN THE SAME
IDEAS ARE REPRESENTED BY GROSS EXPERIENCE IN PROSE AND POETRY . . . IF
THROUGH THE EYE AND EAR THE SENSUOUS BOOK, PICTURE OR STORY IS ALLOWED
TO ENTER, THE THOUGHTS WILL BE CORRUPTED, THE CONSCIENCE SEARED, SO
SUCH THINGS REPRODUCED BY FANCY IN THE THOUGHTS AWAKEN FORCES OF EVIL
WHICH WILL EXPLODE WITH IRRESISTIBLE FORCE CARRYING TO DESTRUCTION
EVERY HUMAN SAFEGUARD TO VIRTUE AND HONOR."  DID NOT EVIL BERNARD SHAW,
WHO GAVE THE ENGLISH LANGUAGE THE WORD COMSTOCKERY, DECLARE HIMSELF, IN
HIS PREFACE TO THE SHEWING-UP OF BALNCO POSNET, "A SPECIALIST IN
IMMORAL, HERETICAL PLAYS . . . TO FORCE THE PUBLIC TO RECONSIDER ITS
MORALS?"  SO THE BRACE COMSTOCK PASSIONATELY EXPLORED AND FOUGHT THE
OUTER EXPRESSIONS OF THE INNER FORCES OF EVIL AND THUS SAVED VIRTUE AND
HONOR FROM DESTRUCTION. 

BUT COULD THIS OBSERVATION OF HIS BE MADE, SAVE ON THE BASIS OF
INTROSPECTION AND NOT THE SCIENTIFIC STUDY OF OTHERS?  FOR SUCH A STUDY
WOULD REVEAL, FOR EACH SINGLE INSTANCE OF WHICH IT WAS TRUE, HUNDREDS
OF THOUSANDS OF OTHERS WHICH IT WAS FALSE.  LIKE THE CORRELATION OF
MISFORTUNE WITH THE SIXTH DAY OF THE WEEK OR THE NUMBER 13, THIS BASIC
COMSTOCKERY SIGNALIZES A FEAR-PROJECTED SUPERSTITION.  IT IS AN
EXTERNALIZATION OF ANXIETY AND FEAR, NOT A FACT OBJECTIVELY STUDIES AND
APPRAISED.  AND THE ANXIETY AND FEAR ARE REACTION-FORMATIONS OF THE
CENSOR'S INNER SELF. 

OF COURSE, THIS IS AN INCOMPLETE DESCRIPTION OF THE MOTIVATION AND
LOGIC OF CENSORSHIP.  IN THE GREAT CENSORIAL ESTABLISHMENTS OF THE
TRADITION, THESE MORE OR LESS UNCONSCIOUS DRIVES ARE USUALLY ITEMS OF A
SYNDROME WHOSE DOMINANTS ARE EITHER GREED FOR PELF, POWER, AND
PRESTIGE, REINFORCED BY ANXIETY THAT THEY MIGHT BE LOST, OR ANXIETY
THAT THEY MIGHT BE LOST REINFORCED BY INSATIABLE DEMANDS FOR MORE. 

AUTHORITARIAN SOCIETIES USUALLY INSURE THESE GOODS BY MEANS OF A
PRESCRIPTIVE CREED AND CODE FOR WHICH THEIR RULERS CLAIM SUPERNATURAL
ORIGINS AND SUPERNATURAL SANCTIONS.  THE ENFORCEMENT OF THE
PRESCRIPTIONS IS NOT ENTRUSTED TO A CENSOR ALONE.  THE ULTIMATE POLICE
POWER IS HELD BY THE CENTRAL HIERARCHY, AND THE CENSORSHIP OF THE ARTS
IS ONLY ONE DEPARTMENT OF THE THOUGHT-POLICING. 

        (C).  CRAWFORD, LITERATURE AND THE PSYCHOPATHIC, 10

           PSYCHOANALYTIC REVIEW 440-445-446 (1923). 

OBJECTION, THEN, TO MODERN WORKS ON THE GROUND THAT THEY ARE, IN THE
WORDS OF THE OBJECTORS, "IMMORAL", IS MADE PRINCIPALLY ON THE BASIS OF
AN ACTUAL DESIRE TO KEEP SEXUAL PSYCHOPATHIES INTACT, OR TO KEEP THE
GENERAL SCHEME OF REPRESSION, WHICH INEVITABLY INVOLVES PSYCHOPATHIC
CONDITIONS, INTACT.  THE ACTIVITIES OF PERSONS PROFESSIONALLY OR
OTHERWSIE DEFINITELY CONCERNED WITH CENSORSHIP FURNISH PROOF EVIDENT
ENOUGH TO THE STUDENT OF SUCH MATTERS THAT THEY THEMSELVES ARE HIGHLY
ABNORMAL.  IT IS SAFE TO SAY THAT EVERY CENSORSHIP HAS A PSYCHOPATH
BACK OF IT. 

CARRIED TO A LOGICAL END, CENSORSHIP WOULD INEVITABLY DESTROY ALL
LITERARY ART. EVERY SEXUAL ACT IS AN INSTINCTIVE FEELING OUT FOR AN
UNDERSTANDING OF LIFE.  LITERARY ART, LIKE EVERY OTHER TYPE OF CREATIVE
EFFORT, IS A FORM OF SUBLIMIATION.  IT IS A MORE CONSCIOUS SEEKING FOR
THE SAME UNDERSTANDING THAT THE COMMON MAN INSTINCTIVELY SEEKS.  THE
LITERARY ARTIST, HAVING ATTAINED UNDERSTANDING, COMMUNICATES THAT
UNDERSTANDING TO HIS READERS.  THAT UNDERSTANDING, WHETHER OF SEXUAL OR
OTHER MATTERS, IS CERTAIN TO COME INTO CONFLICT WITH POPULAR BELIEFS,
FEARS, AND TABOOS BECAUSE THESE ARE, FOR THE MOST PART, BASED ON ERROR
. . . . (THE PRESENCE OF AN OPINION CONCERNING WHICH ONE THINKS IT
WOULD BE UNPROFITABLE, IMMORAL, OR UNWISE TO INQUIRE IS, OF ITSELF,
STRONG EVIDENCE THAT THAT OPINION IS NONRATIONAL.  MOST OF THE MORE
DEEP-SEATED CONVICTIONS OF THE HUMAN RACE BELONG TO THIS CATEGORY. 
ANYONE WHO IS SEEKING FOR UNDERSTANDING IS CERTAIN TO ENCOUNTER THIS
NONRATIONAL ATTITUDE. 

THE ACT OF SUBLIMATION ON THE PART OF THE WRITER NECESSARILY
INVOLVES AN ACT OF SUBLIMATION ON THE PART OF THE READER.  THE TYPICAL
PSYCHOPATHIC PATIENT AND THE TYPICAL PUBLIC HAVE ALIKE A DEEP-ROOTED
UNCONSCIOUS AVERSION TO SUBLIMATION.  INFERIORITY AND OTHER COMPLEXES
ENTER IN TO MAKE THE INDIVIDUAL FEEL THAT ACTS OF SUBLIMATION WOULD
DESTROY HIS COMFORTABLE, THOUGH ILLUSORY, SENSE OF SUPERIORITY.  AGAIN,
THERE IS THE REALIZATION ON THE PART OF THE MASS OF PEOPLE THAT THEY
ARE UNABLE TO SUBLIMATE AS THE ARTIST DOES, AND TO ADMIT HIS POWER AND
RIGHT TO DO SO INVOLVES DESTRUCTION OF THE SPECIOUS SENSE OF
SUPERIORITY TO HIM.  IT IS THESE TWO FORMS OF AVERSION OT SUBLIMATION
WHICH ACCOUNT FOR A CONSIDERABLE PART OF PUBLIC OBJECTION TO THE ARTS.
THE COMMON MAN AND HIS LEADER, THE PSYCHOPATHIC REFORMER, ARE AIMING
UNCONSCIOUSLY AT LEVELING HUMANITY TO A PLAN OF PATHOLOGICAL
MEDIOCRITY. 

TO THE STUDENT OF ABNORMAL PSYCHOLOGY THE LEGEND, POPULAR
LITERATURE, AND LITERATURE REVELATORY OF ACTUAL TABOOS, IN THE POPULAR
LITERATURE OF THE DAY HE DISCOVERS THIS REINFORCED BY THE MASS OF
CONTEMPORARY AND LOCAL TABOOS, IN LITERATURE THAT AIMS TO BE
REALISTICALLY REVELATORY OF LIFE HE FINDS MATERIAL FOR STUDY SUCH AS HE
CAN HARDLY OBTAIN FROM ANY GROUP OF PATIENTS.  THE FRANKNESS WHICH HE
SEEKS IN VAIN FROM THE PERSONS WITH WHOM HE COMES INTO PERSONAL
CONTACT, HE CAN FIND IN LITERATURE.  IT IS A FIELD IN WHICH ADVANCES
MAY BE MADE COMPARABLE TO THE ADVANCES OF ACTUAL SCIENTIFIC RESEARCH. 

MOREOVER, THE STUDENT OF ABNORMAL PSYCHOLOGY WILL COMMEND REALISTIC,
REVELATORY LITERATURE NOT ONLY TO HIS PATIENTS, WHO ARE SUFFERING FROM
SPECIFIC PSYCHOPATHIC DIFFICULTIES, BUT TO THE PUBLIC GENERALLY.  HE
WILL REALIZE THAT IT IS ONE OF THE MOST IMPORTANT FACTORS IN THE
DEVELOPMENT OF HUMAN FREEDOM.  NO ONE IS LESS FREE THAN PRIMITIVE MAN. 
THE FARTHER WE CAN GET FROM THE ATTITUDE OF THE LEGEND AND ITS SLIGHTLY
MORE CIVILIZED SUCCESSOR, POPULAR LITERATURE, THE NEARER WE SHALL BE TO
A SIGNFICANT WAY OF LIFE. 

    (D).  J. RINALDO, PSYCHOANALYSIS OF THE "REFORMER" 56-60

           (1921). 

THE OTHER ASPECT OF THE HUMANIST MOVEMENT IS A VERY SOUR AND
DISGRUNTLED PURITANISM, WHICH SEEMS AT FIRST GLANCE TO PROTECT AND
CONTRADICT EVERY STEP IN THE LIBIDINOUS DEVELOPMENT.  AS A MATTER OF
FACT IT IS JUST AS MUCH AN HYSTERICAL OUTBURST AS THE MOST SENSUOUS
FLESH MASSES OF RUBENS, OR THE SINUOUS SQUIRMING LINES OF LOUIS XV
DECORATION.  BOTH ARE REACTIONS TO THE SAME MORBID PAST EXPERIENCE. 

THE PURITAN LIKE THE SENSUALIST REBELS AT THE VERY BEGINNING AGAINST
THE RESTRAINT OF CELIBACY.  UNFORTUNATELY, HOWEVER,HE FINDS HIMSELF
UNABLE TO SATISFY THE LIBIDO IN EITHER NORMAL GRATIFICATION OR HEALTHY
CONVERTED ACTIVITIES.  HIS CONDITION IS AS MUCH ONE OF SUPER-EXCITEMENT
AS THAT OF THE LIBERTINE.  UNABLE TO FIND SATISFACTION IN OTHER WAYS,
FROM WHICH FOR ONE REASON OR ANOTHER HE IS INHIBITED, HE DEVELOPS A
MORBID IRRITATION, CONTRADICTING, BREAKING, PROHIBITING AND THWARTING
THE MANIFESTATIONS OF THE VERY EXCITING CAUSES. 

NOT BEING ABLE TO PRODUCE BEAUTIFUL THINGS HE ARMS THEM, SMASHING
STAINED GLASS WINDOWS, DESTROYING SCULPTURES, CUTTING DOWN MAY-POLES,
FORBIDDING DANCES, CLIPPING THE HAIR, COVERING THE BODY WITH HIDEOUS
MISSHAPEN GARMENTS AND SILENCING LAUGHTER AND SONG.  HE CANNOT BUILD SO
HE MUST DESTROY.  HE CANNOT CREATE SO HE HINDERS CREATION.  HIS IS A
SORT OF SOCIAL ABORTIONIST AND LIKE AN ABORTIONIST ONLY COMES INTO HIS
OWN WHEN THERE IS AN ILLEGITIMATE BRAT TO BE TORN FROM THE WOMB.  HE
CRIES AGAINST SIN, BUT IT IS THE PLEASURE OF SIN RATHER THAN THE SIN HE
FIGHTS.  IT IS THE ENJOYMENT HE IS DENIED THAT HE HATES. 

FROM NO AGE OR CLIME OR CONDITION IS HE ABSENT; BUT NEVER IS HE A
DOMINANT AND DECIDING FACTOR IN SOCIETY TILL THAT SOCIETY HAS PASSED
THE BOUNDS OF SANITY.  THOSE WHO WAIT THE MIDWIFE NEVER CALL IN THE
ABORTIONIST, NOR DOES HE EVER CURE THE REAL SICKNESS OF HIS AGE.  THAT
HE DOES SURVIVE ABNORMAL PERIODS TO PUT HIS IMPRESS ON THE REPRESSIONS
OF LATER DAYS IS DUE TO THE PECULIAR ECONOMY OF HIS BEHAVIOR.  THE
LIBERTINE DESTROYS HIMSELF, DEVOURING HIS SUBSTANCE IN SELF
SATISFACTION.  THE REFORMER DEVOURS OTHERS, BEING SOMEWHAT IN THE
NATURE OF A TAX ON VICE, LIVING BY THE VERY HYSTERIA THAT DESTROYS HIS
HOMOLOGOUS OPPOSITE. 

IN OUR OWN DAY WE HAVE REACHED ANOTHER OF THOSE CRITICAL PERIODS
STRIKINGLY SIMILAR IN ITS PSYCHOLOGICAL SYMPTOMS AND REACTIONS, AT
LEAST, TO DECADENT ROME.  WE HAVE THE SAME DEVELOPMENT OF EXTRAVAGANT
RELIGIOUS CULTS, SPIRITISM, DOWIEISM, "THE PURPLE MOTHER," ALL EAGERLY
SEIZED UPON, FILLING THE WORLD WITH CLAMOR AND FRENZY; THE SAME MAD
SEEKING FOR PLEASURE, THE SAME BREAKING AND SCATTERING IN FORMS, THE
SAME ORGY OF GLUTTONY AND EXTRAVAGANCE, THE SAME CRUDE EMOTIONALISM IN
ART, LETTER AND THE THEATER, THE SAME DEFORMED AND INVERTED SEXUAL
LIFE. 

HOMO-SEXUALISM MAY NOT BE OPENLY ADMITTED, BUT THE "SISSY" AND HIS
RED NECKTIE ARE A FAMILIAR AND EASILY UNDERSTOOD PROPERTY OF POPULAR
JEST AND PANTOMIME.  IT IS ALL A MAD JAZZ JUMBLE OF HYSTERICAL
INCONGRUITIES, DOG DINNERS, MONKEY MARRIAGES, CUBISM, BIRTH CONTROL,
FEMINISM, FREE-LOVE, VERSE LIBRE, AND MOVING PICTURES.  THROUGH IT ALL
RUNS THE STRIDENT NOTE OF PURITANISM.  AS ONE GROWS SO DOES THE OTHER. 
NEITHER SEEMS TO PRECEDE TO FOLLOW. 

IT WOULD BE A RASH MAN INDEED WHO WOULD ATTEMPT TO GIVE LATER
BEGINNINGS TO THE REFORM MOVEMENTS THAN TO THE LICENSE THEY SEEM SO
STRONGLY TO CONTRADICT.  SIGNIFICANT INDEED IS THAT FACT THAT THEIR
VERY LICENSE IS THE STRONGEST APPEAL OF THE REFORMER.  EVERY MOVIE MUST
PREACH A SERMON AND HAVE A PROPER ENDING, BUT THE ATTEMPTED RAPE IS AS
SELDOM MISSING AS THE TELEPHONE; AND IT IS THIS THAT THRILLS AND IS
EXPECTED TO THRILL. 

THE SAME SEXUAL PARADOX WE SAW IN THE EUNUCH PRIESTS AND HARLOT
PRIESTESSES OF ISIS WE SEE IN THE VICE-CRUSADING, VICE-PANDERING
REFORMERS.  BACK OF IT ALL LIES A MORBID SEXUAL CONDITION, WHICH IS AS
MUCH BEHIND THE ANTI-ALCOHOLISM OF THE PROHIBITIONIST, AS BEHIND THE
CROPPED HEAD OF HIS PURITAN FATHER, AND AS MUCH BEHIND THE
BIRTHCONTROL, VICE-CRUSADING VIRGINS AS BEHIND THEIR MORE AMIABLE
SISTERS OF APHRODITE. 

INTERPRETED THEN IN THE LGIHT OF THEIR HISTORY, LIBERTINISM AND
REFORMISM CANNOT BE DIFFERENTIATED AS CAUSE AND EFFECT, ACTION AND
REACTION, BUT MUST BE ASSOCIATED AS A TWO-FOLD MANIFESTATION OF THE
SAME THING, AS HYSTERICAL CONDITION.  THEY DIFFER IN EXTERNALS, ONLY
INSOFAR AS ONE OPERATES IN LICENSE AND THE OTHER IN REPRESSION, BUT
BOTH HAS THE SAME GENESIS AND THEIR DEVELOPMENT IS SIMULTANEOUS. 

        (E).  H. LASSWELL, PSYCHOPATHOLOGY AND POLITICS 94-96

           (1930). 

ANOTHER SIGNIFICANT PRIVATE MOTIVE, WHOSE ORGANIZATION DATES FROM
EARLY FAMILY DAYS, BUT WHOSE INFLUENCE WAS PROMINENT IN ADULT BEHAVIOR,
WAS A'S STRUGGLE TO MAINTAIN HIS SEXUAL REPRESSIONS.  ("A" IS AN
UNIDENTIFIED, NONFICTIONAL PERSON WHOSE LIFE HISTORY WAS STUIDED BY THE
AUTHOR.)  HE ERECTED HIS VERY ELABORATE PERSONAL PROHIBITIONS INTO
GENERALIZED PROHIBITIONS FOR ALL SOCIETY, AND JUST AS HE LAID DOWN THE
LAW AGAINST BROTHER-HATRED, HE CONDEMNED "IRREGULAR" SEXUALITY AND
GAMBLING AND DRINKING, ITS ASSOCIATED INDULGENCES.  HE WAS DRIVEN TO
PROTECT HIMSELF FROM HIMSELF BY SO MODIFYING THE ENVIRONMENT THAT HIS
SEXUAL IMPULSES WERE LEAST OFTEN AROUSED, BUT IT IS SIGNIFICANT THAT HE
GRANTED PARTIAL INDULGENCE TO HIS REPRESSED SEXUALITY BY ENGAGING IN
VARIOUS ACTIVITIES CLOSELY ASSOCIATED WITH SEXUAL OPERATIONS.  THUS HIS
SERMONS AGAINST VICE ENABLE HIM TO LET HIS MIND DWELL UPON RICH
FANTASIES OF SEDUCTION.  HIS CRUSADING VENTURES BROUGHT HIM TO HOUSES
OF ILL FAME, WHERE PARTLY CLAD WOMEN WERE DISCOVERABLE IN BACK ROOMS. 
THESE ACTIVITIES WERE RATIONALIZED BY ARGUING THAT IT WAS UP TO HIM AS
A LEADER OF THE MORAL FORCES OF THE COMMUNITY TO REMOVE TEMPTATION FROM
THE PATH OF YOUTH.  AT NO TIME DID HE MAKE AN OBJECTIVE INQUIRY INTO
THE MANY FACTORS IN SOCIETY WHICH INCREASE OR DIMINISH PROSTITUTION. 
HIS MOTIVES WERE OF SUCH AN ORDER THAT HE WAS PREVENTED FROM SELF
DISCIPLINE BY PROLONGED INSPECTION OF SOCIAL EXPERIENCE. 

THAT A WAS NEVER ABLE TO ABOLISH HIS SEXUALITY IS SUFFICIENTLY
EVIDENT IN HIS NIGHT DREAMS AND DAY DREAMS.  IN SPITE OF HIS EFFORTS TO
"FIGHT" THESE MANIFESTATIONS OF HIS "ANTISOCIAL IMPULSES," THEY
CONTINUED TO APPEAR.  AMONG THE DIRECT AND IMPORTANT CONSEQUENCES WHICH
THEY PRODUCED WAS A SENSE OF SIN, NOT ONLY A SENSE OF SEXUAL SIN, BUT A
GROWING CONVICTION OF HYPOCRISY.  HIS "BATTLE" AGAINST "EVIL" IMPULSES
WAS ONLY PARTIALLY SUCCESSFUL, AND THIS PRODUCED A PROFOUND FEELING OF
INSECURITY. 

THIS SELF-PUNISHING STRAIN OF INSECURITY MIGHT BE ALLEVIATED, HE
FOUND, BY PUBLICLY REAFFIRMING THE CREED OF REPRESSION, AND BY
DISTRACTING ATTENTION TO OTHER MATTERS.  A'S RAPID MOVEMENTS, DOGMATIC
ASSERTIONS, AND DIVERSIFIED ACTIVITIES WERE MEANS OF ESCAPE FROM THIS
GNAWING SENSE OF INCAPACITY TO COPE WITH HIS OWN DESIRES AND TO MASTER
HIMSELF.  UNCERTAIN OF HIS POWER TO CONTROL HIMSELF, HE WAS VERY BUSY
ABOUT CONTROLLING OTHERS, AND ENGAGED IN ENDLESS COMMITTEE SESSIONS,
PERSONAL CONFERENCES, AND PUBLIC MEETINGS FOR THE PURPOSE.  HE ALWAYS
MANAGED TO SUBMERGE HIMSELF IN A BUZZING LIFE OF CEASELESS ACTIVITY; HE
COULD NEVER STAND PRIVACY AND SOLITUTE, SINCE IT DROVE HIM TO A SENSE
OF FUTILITY; AND HE COULDN'T UNDERTAKE PROLONGED AND LABORIOUS STUDY,
SINCE HIS FEELING OF INSECURITY DEMANDED DAILY EVIDENCE OF HIS
IMPORTANCE IN THE WORLD. 

A'S SEXUAL DRIVES CONTINUED TO MANIFEST THEMSELVES, AND TO CHALLENGE
HIS RESISTANCES.  HE WAS CONTINUALLY ALARMED BY THE LURING FEAR THAT HE
MIGHT BE IMPOTENT.  ALTHOUGH HE PROPOSED MARRIAGE TO TWO GIRLS WHEN HE
WAS A THEOLOGY STUDENT, IT IS SIGNIFICANT THAT HE CHOSE GIRLS FROM HIS
IMMEDIATE ENTOURAGE, AND EFFECTED AN ALMOST INSTANTANEOUS RECOVERY FROM
HIS DISAPPOINTMENTS.  THIS WARRANTS THE INFERENCE THAT HE WAS
CONSIDERABLY RELIEVED TO POSTPONE THE TEST OF HIS POTENCY, AND THIS
INFERENCE IS STRENGTHENED BY THE LONG YEARS DURING WHICH HE CHEERFULLY
ACQUIESCED IN THE POSTPONEMENT OF HIS MARRIAGE TO THE WOMAN WHO FINALLY
BECAME HIS WIFE.  HE LIVED WITH PEOPLE WHO VALUED SEXUAL POTENCY,
PARTICULARLY IN ITS CONVENTIONAL AND BIOLOGICAL DEMONSTRATION IN
MARRIAGE AND CHILDREN, AND HIS UNMARRIED STATE WAS THE OBJECT OF GOOD
NATURED COMMENT.  HIS PASTORAL DUTIES REQUIRED HIM TO "MAKE CALLS"  ON
SISTERS OF THE CHURCH, AND IN SPITE OF THE CHEER WHICH HE WAS SOMETIMES
ABLE TO BRING TO THE BEDRIDDEN, THERE WAS A FAINT WHISPER OF A DOUBT
THAT THIS WAS REALLY A MAN'S JOB.  AND THOUGH PREACHING WAS A SOCIALLY
RESPECTABLE OCCUPATION, THERE WAS SOMETHING OF THE RIDICULOUS IN THE
FACT THAT ONE WHO HAD EXPERIENCED VERY LITTLE OF LIFE SHOULD PASS FOR A
PRIVILEGED CENSOR OF ALL MANKIND. 

MR. JUSTICE FORTAS, DISSENTING. 

THIS IS A CRIMINAL PROSECUTION.  SAM GINSBERG AND HIS WIFE OPERATE A
LUNCHEONETTE AT WHICH MAGAZINES ARE OFFERED FOR SALE.  A 16-YEAR-OLD
BOY WAS ENLISTED BY HIS MOTHER TO GO TO THE LUNCHEONETTE AND BUY SOME
"GIRLIE" MAGAZINES SO THAT GINSBERG COULD BE PROSECUTED.  HE WENT
THERE, PICKED TWO MAGAZINES FROM A DISPLAY CASE, PAID FOR THEM, AND
WALKED OUT.  GINSBERG'S OFFENSE WAS DULY REPORTED TO THE AUTHORITIES. 
THE POWER OF THE STATE OF NEW YORK WAS INVOKED.  GINSBERG WAS
PROSECUTED AND CONVICTED.  THE COURT IMPOSED ONLY A SUSPENDED
SENTENCE.  BUT AS THE MAJORITY HERE POINTS OUT, UNDER NEW YORK LAW THIS
CONVICTION MAY MEAN THAT GINSBERG WILL LOSE THE LICENSE NECESSARY TO
OPERATE HIS LUNCHEONETTE.     THE TWO MAGAZINES THAT THE 16-YEAR-OLD
BOY SELECTED ARE VULGAR "GIRLIE" PERIODICALS.  HOWEVER TASTELESS AND
TAWDRY THEY MAY BE WE HAVE RULED (AS THE COURT ACKNOWLEDGES) THAT
MAGAZINES INDISTINGUISHABLE FROM THEM IN CONTENT AND OFFENSIVENESS ARE
NOT "OBSCENE" WITHIN THE CONSTITUTIONAL STANDARDS HERETOFORE APPLIED. 
SEE, E.G., GENT V. ARKANSAS, 386 U.S. 767 (1967).  THESE RULINGS HAVE
BEEN IN CASES INVOLVING ADULTS. 

THE COURT AVOIDS FACING THE PROBLEM WHETHER THE MAGAZINES IN THE
PRESENT CASE ARE "OBSCENE" WHEN VIEWED BY A 16-YEAR-OLD BOY, ALTHOUGH
NOT "OBSCENE" WHEN VIEWED BY SOMEONE 17 YEARS OF AGE OR OLDER.  IT SAYS
THAT GINSBERG'S LAWYER DID NOT CHOOSE TO CHALLENGE THE CONVICITON ON
THE GROUND THAT THE MAGAZINES ARE NOT "OBSCENE."  HE CHOSE ONLY TO
ATTACK THE STATUTE ON ITS FACE.  THEREFORE, THE COURT REASONS, WE NEED
NOT LOOK AT THE MAGAZINES AND DETERMINE WHETHER THEY MAY BE EXCLUDED
FROM THE AMBIT OF THE FIRST AMENDMENT AS "OBSCENE" FOR THE PURPOSES OF
THIS CASE.  BUT THIS COURT HAS MADE STRONG AND COMPREHENSIVE STATEMENTS
ABOUT ITS DUTY IN FIRST AMENDMENT CASES-- STATEMENTS WITH WHICH I
AGREE.  SEE, E.G., JACOBELLIS V. OHIO, 378 U.S. 184, 187-190 (1964)
(OPINION OF BRENNAN, J.).  /1/

IN MY JUDGMENT, THE COURT CANNOT PROPERLY AVOID ITS FUNDAMENTAL DUTY
TO DEFINE "OBSCENTIY" FOR PURPOSES OF CENSORSHIP OF MATERIAL SOLD TO
YOUTHS, MERELY BECAUSE OF COUNSEL'S POSITION.  BY SO DOING THE COURT
AVOIDS THE ESSENCE OF THE PROBLEM; FOR IF THE STATE'S POWER TO CENSOR
FREED FROM THE PROHIBITIONS OF THE FIRST AMENDMENT DEPENDS UPON
OBSCENITY, AND IF OBSCENITY TURNS ON THE SPECIFIC CONTENT OF THE
PUBLICATION, HOW CAN WE SUSTAIN THE CONVICTION HERE WITHOUT DECIDING
WHETHER THE PARTICULAR MAGAZINES IN QUESTION ARE OBSCENE? 

THE COURT CERTAINLY CANNOT MEAN THAT THE STATES AND CITIES AND
COUNTIES AND VILLAGES HAVE UNLIMITED POWER TO WITHHOLD ANYTHING AND
EVERYTHING THAT IS WRITTEN OR PICTORIAL FROM YOUNGER PEOPLE.  BUT IT
HERE JUSTIFIES THE CONVICTION OF SAM GINSBERG BECAUSE OF THE IMPACT OF
THE CONSTITUTION, IT SAYS, IS VARIABLE, AND WHAT IS NOT OBSCENE FOR AN
ADULT MAY BE OBSCENE FOR A CHILD.  THIS IT CALLS "VARIABLE OBSCENITY." 
I DO NOT DISAGREE WITH THIS, BUT I INSIST THAT TO ASSESS THE PRINCIPLE-
CERTAINLY TO APPLY TO IT-- THE COURT MUST DEFINE IT.  WE MUST KNOW THE
EXTENT TO WHICH LITERATURE OR PICTURES MAY BE LESS OFFENSIVE THAN ROTH
REQUIRES IN ORDER TO BE "OBSCENE" FOR PURPOSES OF A STATUTE CONFINED TO
YOUTH.  SEE ROTH V. UNITED STATES, 354 U.S. 476 (1957). 

I AGREE THAT THE STATE IN THE EXERCISE OF ITS POLICE POWER-- EVEN IN
THE FIRST AMENDMENT DOMAIN-- MAY MAKE PROPER AND CAREFUL
DIFFERENTIATION BETWEEN ADULTS AND CHILDREN.  BUT I DO NOT AGREE THAT
THIS POWER MAY BE USED ON AN ARBITRARY, FREE-WHEELING BASIS.  THIS IS
NOT A CASE WHERE, ON ANY STANDARD ENUNCIATED BY THE COURT, THE
MAGAZINES ARE OBSCENE, NOR ONE WHERE THE SELLER IS AT FAULT. 
PETITIONER IS BEING PROSECUTED FOR THE SALE OF MAGAZINES WHICH HE HAD A
RIGHT UNDER THE DECISIONS OF THIS COURT TO OFFER FOR SALE, AND HE IS
BEING PROSECUTED WITHOUT PROOF OF "FAULT"-- WITHOUT EVEN A CLAIM THAT
HE DELIBERATELY, CALCULATEDLY SOUGHT TO INDUCE CHILDREN TO BUY
"OBSCENE" MATERIAL.  BOOKSELLING SHOULD NOT BE A HAZARDOUS PROFESSION. 

THE CONVICTION OF GINSBERG ON THE PRESENT FACTS IS A SERIOUS
INVASION OF FREEDOM.  TO SUSTAIN THE CONVICTION WITHOUT INQUIRY AS TO
WHETHER THE MATERIAL IS "OBSCENE" AND WITHOUT ANY EVIDENCE OF PUSHING
OR PANDERING, IN FACE OF THIS COURT'S ASSERTED SOLICITUDE FOR FIRST
AMENDMENT VALUES, IS TO GIVE THE STATE A ROLE IN THE REARING OF
CHILDREN WHICH IS CONTRARY TO OUR TRADITIONS AND TO OUR CONCEPTION OF
FAMILY RESPONSIBILITY.  CF. IN RE GAULT, 387 U.S. 1 (1967).  IT BEGS
THE QUESTION TO PRESENT THIS UNDEFINED, UNLIMITED CENSORSHIP AS AN AID
TO PARENTS IN THE REARING OF THEIR CHILDREN.  RATHER, ITS UNDEFINED AND
UNLIMITED APPROVAL OF STATE CENSORSHIP IN THIS AREA DENIES TO CHILDREN
FREE ACCESS TO BOOKS AND WORKS OF ART TO WHICH MANY PARENTS MAY WISH
THEIR CHILDREN TO HAVE UNINHIBITED ACCESS.  FOR DENIAL OF ACCESS TO
THESE MAGAZINES, WITHOUT ANY STANDARD OR DEFINITION OF THEIR ALLEGEDLY
DISTINGUISHING CHARACTERISTICS, IS ALSO DENIAL OF ACCESS TO GREAT WORKS
OF ART AND LITERATURE. 

IF THIS STATUTE WERE CONFINED TO THE PUNISHMENT OF PUSHERS OR
PANDERERS OF VULGAR LITERATURE I WOULD NOT BE SO CONCERNED BY THE
COURT'S FAILURE TO CIRCUMSCRIBE STATE POWER BY DEFINING ITS LIMITS IN
TERMS OF THE MEANING OF "OBSCENITY" IN THIS FIELD.  THE STATE'S POLICE
POWER MAY, WITHIN VERY BROAD LIMITS, PROTECT THE PARENTS AND THEIR
CHILDREN FROM PUBLIC AGGRESSION OF PANDERERS AND PUSHERS.  THIS IS
DEFENSIBLE ON THE THEORY THAT THEY CANNOT PROTECT THEMSELVES FROM SUCH
ASSAULTS.  BUT IT DOES NOT FOLLOW THAT THE STATE MAY CONVICT A PASSIVE
LUNCHEONETTE OPERATOR OF A CRIME BECAUSE A 16-YEAR-OLD BOY MALICIOUSLY
AND DESIGNEDLY PICKS UP AND PAYS FOR TWO GIRLIE MAGAZINES WHICH ARE
PRESUMABLY NOT OBSCENE. 

I WOULD THEREFORE REVERSE THE CONVICTION ON THE BASIS OF REDRUL V.
NEW YORK, 386 U.S. 767 (1967) AND GINZBERG V. UNITED STATES, 383 U.S.
463 (1966). 

/1/  "(WE REAFFIRM THE PRINCIPLE THAT, IN 'OBSCENTIY' CASES AS IN
ALL OTHERS INVOLVING RIGHTS DERIVED FROM THE FIRST AMENDMENT GUARANTEES
OF FREE EXPRESSION, THIS COURT CANNOT AVOID MAKING AN INDEPENDENT
CONSTITUTIONAL JUDGMENT ON THE FACTS OF THE CASE AS TO WHETHER THE
MATERIAL INVOLVED IS CONSTITUTIONALLY PROTECTED."  378 U.S., AT 190. 
SEE COX V. LOUISIANA, 379 U.S. 536, 545, N. 8 (1965). 

EMANUEL REDFELD ARGUED THAT CAUSE FOR APPELLANT.  WITH HIM ON THE
BRIEF WAS BENJAMIN E. WINSTON. 

WILLIAM CAHN ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE BRIEF
WAS GEORGE DANZIG LEVINE. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY OSMOND K.
FRAENKEL, EDWARD J. ENNIS, MELVIN L. WULF AND ALAN H. LEVINE FOR THE
AMERICAN CIVIL LIBERTIES UNION ET AL., BY MORRIS B. ABRAM AND JAY
GREENFIELD FOR THE COUNCIL OF PERIODICAL DISTRIBUTORS ASSOCIATION,
INC., BY HORACE S. MANGES AND MARSHALL C. BERGER FOR THE AMERICAN BOOK
PUBLISHERS COUNCIL, INC., AND BY IRWIN KARP FOR THE AUTHORS LEAGUE OF
AMERICA, INC. 

BRIEF OF AMICUS CRUIAE, URGING AFFIRMANCE, WAS FILED BY CHARLES H.
KEATING, JR., AND JAMES J. CLANCY FOR THE CITIZENS FOR DECENT
LITERATURE, INC.
..END :
























INTERSTATE CIRCUIT V. DALLAS, 390 U.S. 676 


       INTERSTATE CIRCUIT, INC. V. CITY OF DALLAS. 

    APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, FIFTH

           SUPREME JUDICIAL DISTRICT. 

        NO. 56.  ARGUED JANUARY 15-16, 1968.-- DECIDED APRIL 22,

1968.  /1A/ 


APPELLEE, THE CITY OF DALLAS, ENACTED AN ORDINANCE ESTABLISHING A
MOTION PICTURE CLASSIFICATION BOARD TO CLASSIFY FILMS AS SUITABLE OR
NOT SUITABLE FOR YOUNG PERSONS, WHO ARE DEFINED AS THOSE UNDER 16 YEARS
OLD.  IN CLASSIFYING A PICTURE AS "NOT SUITABLE FOR YOUNG PERSONS" THE
BOARD MUST FOLLOW STANDARDS SET FORTH IN THE ORDINANCE AND FIND THAT,
IN ITS JUDGMENT, THE FILM DESCRIBED OR PORTRAYS (1) BRUTALIT-, CRIMINAL
VIOLENCE, OR DEPRAVITY IN SUCH A MANNER AS LIKELY TO INCITE YOUNG
PERSONS TO CRIME OR DELINQUENCY OR (2) "SEXUAL PROMISCUITY OR EXTRA
MARITAL OR ABNORMAL SEXUAL RELATIONS IN SUCH A MANNER AS . . . LIKELY
TO INCITE OR ENCOURAGE DELINQUENCY OR SEXUAL PROMISCUITY ON THE PART OF
YOUNG PERSONS OR TO APPEAL TO THEIR PRURIENT INTEREST."  A FILM SHALL
BE CONSIDERED LIKELY TO PRODCUE SUCH RESULTS IF IN THE BOARD'S JUDGMENT
"THERE IS A SUBSTANTIAL PROBABILITY THAT IT WILL CREATE THE IMPRESSION
ON YOUNG PERSONS THAT SUCH CONDUCT IS PROFITABLE, DESIRABLE,
ACCEPTABLE, RESPECTABLE, PRAISEWORTHY OR COMMONLY ACCEPTED."  IF THE
EXHIBITOR DOES NOT ACCEPT THE BOARD'S "NOT SUITABLE"  CLASSIFICATION,
THE BOARD MUST FILE SUIT TO ENJOIN THE SHOWING OF THE PICTURE AND THE
BOARD'S DETERMINATION IS SUBJECT TO DE NOVO REVIEW.  THE ORDINANCE IS
ENFORCEABLE BY A MISDEMEANOR PENALTY, INJUNCTION, AND LICENSE
REVOCATION.  ACTING PURSUANT TO THE ORDINANCE THE BOARD, WITHOUT GIVING
REASONS FOR ITS DETERMINATION, CLASSIFIED AS "NOT SUITABLE FOR YOUNG
PERSONS" THE FILM "VIVA MARIA", FOR WHICH APPELLANTS ARE RESPECTIVELY
THE EXHIBITOR AND DISTRIBUTOR.  FOLLOWING THE EXHIBITOR'S NOTICE OF
NONACCEPTANCE OF THE BOARD'S CLASSIFICATION, APPELLEE PETITIONED FOR AN
INJUNCTION ALLEGING IN TERMS OF THE ORDINANCE THAT THE CLASSIFICATION
WAS WARRANTED BECAUSE OF THE FILM'S PORTRAYAL OF SEXUAL PROMISCUITY. 
TWO BOARD MEMBERS TESTIFIED AT THE HEARING THAT SEVERAL SCENES
PORTRAYING MALE-FEMALE RELATIONSHIPS CONTRAVENED "ACCEPTABLE AND
APPROVED BEHAVIOR."  THE TRIAL JUDGE, CONCLUDING THAT THERE WERE "TWO
OR THREE FEATURES IN THE PICTURE THAT LOOK TO ME WOULD BE UNSUITABLE TO
YOUNG PEOPLE," ISSUED AN INJUNCTION.  THE APPELLATE COURT, WITHOUT
LIMITING THE STANDARDS OF THE ORDINANCE, AFFIRMED.  HELD:  THE
ORDINANCE IS VIOLATIVE OF THE FIRST AND FOURTEENTH AMENDMENTS AS BEING
UNCONSTITUTIONALLY VAGUE SINCE IT LACKS "NARROWLY DRAWN, REASONABLE AND
DEFINITE STANDARDS FOR THE OFFICIALS TO FOLLOW,"  NIEMOTKO V. MARYLAND,
340 U.S. 268, 271 (1951).  PP. 682-691. 

(A) MOTION PICTURES ARE PROTECTED BY THE FIRST AMENDMENT AND CANNOT
BE REGULATED EXCEPT BY PRECISE AND DEFINITE STANDARDS.  PP. 682-683. 

(B) THE VICE OF VAGUENESS IS PARTICULARLY PRONOUNCED WHERE
EXPRESSION IS SUBJECTED TO LICENSING.  P. 683. 

(C) VAGUE CENSORSHIP STANDARDS ARE NOT CURED MERELY BY DE NOVO
JUDICIAL REVIEW AND UNLESS NARROWED BY INTERPRETATION ONLY ENCOURAGE
ERRATIC ADMINISTRATION.  P. 685. 

(D) THE TERM "SEXUAL PROMISCUITY" IS NOT DEFINED IN THE ORDINANCE
AND WAS NOT INTERPRETED IN THE STATE COURTS.  THE FAILURE TO LIMIT THAT
TERM OR RELATED TERMS USED IN THE ORDINANCE AND THE BREADTH OF THE
STANDARD "PROFITABLE, DESIRABLE, ACCEPTABLE, RESPECTABLE, PRAISEWORTHY
OR COMMONLY ACCEPTED" GIVE THE CENSOR A ROVING COMMISSION.  PP. 687
688. 

(E) THE EVIL OF VAGUENESS IS NOT CURED BECAUSE THE REGULATION OF
EXPRESSION IS ONE OF CLASSIFICATION RATHER THAN DIRECT SUPPRESSION OR
WAS ADOPTED FOR THE SALUTARY PURPOSE OF PROTECTING CHILDREN.  PP. 688
689. 

402 S.W.2D 770, REVERSED AND REMANDED 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE AN EXHIBITOR AND THE DISTRIBUTOR OF A MOTION PICTURE
NAMED "VIVA MARIA," WHICH, PURSUANT TO A CITY ORDINANCE, THE MOTION
PICTURE CLASSIFICATION BOARD OF THE APPELLEE CITY OF DALLAS CLASSIFIED
AS "NOT SUITABLE FOR YOUNG PERSONS."  A COUNTY COURT UPHELD THE BOARD'S
DETERMINATION AND ENJOINED EXHIBITION OF THE FILM WITHOUT ACCEPTANCE BY
APPELLANTS OF THE REQUIREMENTS IMPSOED BY THE RESTRICTED
CLASSIFICATION.  THE TEXAS COURT OF CIVIL APPEALS AFFIRMED, /1/  AND WE
NOTED PROBABLE JURISDICTION, 387 U.S. 903, TO CONSIDER THE FIRST AND
FOURTEENTH AMENDMENT ISSUES RAISED BY APPELLANTS WITH RESPECT TO
APPELLEE'S CLASSIFICATION ORDINANCE. 

THAT ORDINANCE, ADOPTED IN 1965, MAY BE SUMMARIZED AS FOLLOWS.  /2/
IT ESTABLISHES A MOTION PICTURE CLASSIFICATION BOARD, COMPOSED OF NINE
APPOINTED MEMBERS, ALL OF WHOM SERVE WITHOUT PAY.  THE BOARD CLASSIFIES
FILMS AS "SUITABLE FOR YOUNG PERSONS" OR AS "NOT SUITABLE FOR YOUNG
PERSONS," YOUNG PERSONS BEING DEFINED AS CHILDREN WHO HAVE NOT REACHED
THEIR 16TH BIRTHDAY.  AN EXHIBITOR MUST BE SPECIALLY LICENSED TO SHOW
"NOT SUITABLE" FILMS. 

THE ORDINANCE REQUIRES THE EXHIBITOR, BEFORE ANY INITIAL SHOWING OF
A FILM, TO FILE WITH THE BOARD A PROPOSED CLASSIFICATION OF THE FILM
TOGETHER WITH A SUMMARY OF ITS PLOT AND SIMILAR INFORMATION.  THE
PROPOSED CLASSIFICATION IS APPROVED IF THE BOARD AFFIRMATIVELY AGREES
WITH IT, OR TAKES NO ACTION UPON IT WITHIN FIVE DAYS OF ITS FILING. 

IF A MAJORITY OF THE BOARD IS DISSATISFIED WITH THE PROPOSED
CLASSIFICATION, THE EXHIBITOR IS REQUIRED TO PROJECT THE FILM BEFORE AT
LEAST FIVE MEMBERS OF THE BOARD AT THE EARLIEST PRACTICABLE TIME.  AT
THE SHOWING, THE EXHIBITOR MAY ALSO PRESENT TESTIMONY OR OTHER SUPPORT
FOR HIS PROPOSED CLASSIFICATION.  WITHIN TWO DAYS THE BOARD MUST ISSUE
ITS CLASSIFICATION ORDER.  SHOULD THE EXHIBITOR DISAGREE, HE MUST FILE
WITHIN TWO DAYS /3/  A NOTICE OF NONACCEPTANCE.  THE BOARD IS THEN
REQUIRED TO GO TO COURT WITHIN THREE DAYS TO SEEK A TEMPORARY
INJUNCTION, AND A HEARING IS REQUIRED TO BE SET ON THAT APPLICATION
WITHIN FIVE DAYS THEREAFTER; IF THE EXHIBITOR AGREES TO WAIVE NOTICE
AND REQUESTS A HEARING ON THE MERITS OF A PERMANENT INJUNCTION, THE
BOARD IS REQUIRED TO WAIVE ITS APPLICATION FOR A TEMPORARY INJUNCTION
AND JOIN THE THE EXHIBITOR'S REQUEST.  IF AN INJUNCTION DOES NOT ISSUE
WITHIN 10 DAYS OF THE EXHIBITOR'S NOTICE OF NONACCEPTANCE, THE BOARD'S
CLASSIFICATION ORDER IS SUSPENDED.  /4/  THE ORDINANCE DOES NOT DEFINE
THE SCOPE OF JUDICIAL REVIEW OF THE BOARD'S DETERMINATION, BUT THE
COURT OF CIVIL APPEALS HELD THAT DE NOVO REVIEW IN THE TRIAL COURT WAS
REQUIRED.  /5/  IF AN INJUNCTION ISSUES AND THE EXHIBITOR SEEKS
APPELLATE REVIEW, OR IF AN INJUNCTION IS REFUSED AND THE BOARD APPEALS,
THE BOARD MUST WAIVE ALL STATUTORY NOTICES AND TIMES, AND JOIN A
REQUEST OF THE EXHIBITOR, TO ADVANCE THE CASE ON THE APPELLATE COURT'S
DOCKET, I.E., DO EVERYTHING IT CAN TO ASSURE A SPEEDY DETERMINATION. 

THE ORDINANCE IS ENFORCED PRIMARILY BY A MISDEMEANOR PENALTY:  AN
EXHIBITOR IS SUBJECT TO A FINE OF UP TO $200 IF HE EXHIBITS A FILM THAT
IS CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS" WITHOUT ADVERTISEMENTS
CLEARLY STATING ITS CLASSIFICATION OR WITHOUT THE CLASSIFICATION BEING
CLEARLY POSTED, EXHIBITS ON THE SAME PROGRAM A SUITABLE AND A NOT
SUITABLE FILM, KNOWINGLY ADMITS A YOUTH UNDER AGE 16 TO VIEW THE FILM
WITHOUT HIS GUARDIAN OR SPOUSE ACCOMPANYING HIM, /6/  MAKES ANY FALSE
OR WILLFULLY MISLEADING STATEMENT IN SUBMITTING A FILM FOR
CLASSIFICATION, OR EXHIBITS A NOT SUITABLE FILM WITHOUT HAVING A VALID
LICENSE THEREFOR. 

THE SAME PENALTY IS APPLICABLE TO A YOUTH WHO OBTAINS ADMISSION TO A
NOT SUITABLE FILM BY FALSLEY GIVING HIS AGE AS 16 YEARS OR OVER, AND TO
ANY PERSON WHO SELLS OR GIVES TO A YOUTH UNDER 16 A TICKET TO A NOT
SUITABLE FILM, OR MAKES ANY FALSE STATEMENTS TO ENABLE SUCH A YOUTH TO
GAIN ADMISSION.  /7/ 

OTHER MEANS OF ENFORCEMENT, AS AGAINST THE EXHIBITOR, ARE PROVIDED. 
REPEATED VIOLATIONS OF THE ORDINANCE, OR PERSISTENT FAILURE "TO USE
REASONABLE DILIGENCE TO DETERMINE WHETHER THOSE SEEKING ADMITTANCE TO
THE EXHIBITION OF A FILM CLASSIFIED 'NOT SUITABLE FOR YOUNG PERSONS'
ARE BELOW THE AGE OF SIXTEEN," MAY BE THE BASIS FOR REVOCATION OF A
LICENSE TO SHOW NOT SUITABLE FILMS.  /8/  SUCH A PERSISTENT FAILURE, OR
EXHIBITION OF A NOT SUITABLE FILM BY AN EXHIBITOR WITH THREE
CONVICTIONS UNDER THE ORDINANCE, INTER ALIA, ARE DEFINED AS "PUBLIC
NUISANCES," WHICH THE BOARD MAY SEEK TO RESTRAIN BY A SUIT FOR
INJUNCTIVE RELIEF. 

THE SUBSTANTIVE STANDARDS GOVERNING CLASSIFICATION ARE AS FOLLOWS: 

"'NOT SUITABLE FOR YOUNG PERSONS' MEANS: "(1) DESCRIBING OR
PROTRAYING BRUTALITY, CRIMINAL VIOLENCE OR DEPRAVITY IN SUCH A MANNER
AS TO BE, IN THE JUDGMENT OF THE BOARD, LIKELY TO INCITE OR ENCOURAGE
CRIME OR DELINQUENCY ON THE PART OF YOUNG PERSONS; OR "(2) DESCRIBING
OR PORTRAYING NUDITY BEYOND THE CUSTOMARY LIMITS OF CANDOR IN THE
COMMUNITY, OR SEXUAL PROMISCUITY OR EXTRA-MARITAL OR ABNORMAL SEXUAL
RELATIONS IN SUCH A MANNER AS TO BE, IN THE JUDGMENT OF THE BOARD,
LIKELY TO INCITE OR ENCOURAGE DELINQUENCY OR SEXUAL PROMISCUITY ON THE
PART OF YOUNG PERSONS OR TO APPEAL TO THEIR PRURIENT INTEREST. 

   "A FILM SHALL BE CONSIDERED 'LIKELY TO INCITE OR ENCOURAGE'

  CRIME DELINQUENCY OR SEXUAL PROMISCUITY ON THE PART OF YOUNG

  PERSONS, IF , IN THE JUDGMENT OF THE BOARD, THERE IS A

  SUBSTANTIAL PROBABILITY THAT IT WILL CREATE THE IMPRESSION ON

  YOUNG PERSONS THAT SUCH CONDUCT IS PROFITABLE, DESIRABLE,

  ACCEPTABLE, RESPECTABLE, PRAISEWORTHY OR COMMONLY ACCEPTED.  A

  FILM SHALL BE CONSIDERED AS APPEALING TO 'PRURIENT INTEREST' OF

  YOUNG PERSONS, IF IN THE JUDGMENT OF THE BOARD, ITS CALCULATED OR

  DOMINANT EFFECT ON YOUNG PERSONS IS SUBSTANTIALLY TO AROUSE

  SEXUAL DESIRE.  IN DETERMINING WHETHER A FILM IS 'NOT SUITABLE

  FOR YOUNG PERSONS,' THE BOARD SHALL CONSIDER THE FILM AS A WHOLE,

  RATHER THAN ISOLATED PORTIONS, AND SHALL DETERMINE WHETHER ITS

  HARMFUL EFFECTS OUTWEIGH ARTISTIC OR EDUCATIONAL VALUES SUCH FILM

  MAY HAVE FOR YOUNG PERSONS." 

APPELLANTS ATTACK THOSE STANDARDS AS UNCONSTITUTIONALLY VAGUE.  WE
AGREE.  MOTION PICTURES ARE, OF COURSE, PROTECTED BY THE FIRST
AMENDMENT, JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495 (1952), AND
THUS WE START WITH THE PREMISE THAT "(PRECISION OF REGULATION MUST BE
THE TOUCHSTONE," NAACP V. BUTTON, 371 U.S. 415, 438 (1963).  AND WHILE
IT IS TRUE THAT THIS COURT REFUSED TO STRIKE DOWN, AGAINST A BROAD AND
GENERALIZED ATTACK, A PRIOR RESTRAINT REQUIREMENT THAT MOTION PICTURES
BE SUBMITTED TO CENSORS IN ADVANCE OF EXHIBITION, TIMES FILM CORP. V.
CITY OF CHICAGO, 365 U.S. 43 (1961), THERE HAS BEEN NO RETREAT IN THIS
AREA FROM RIGOROUS INSISTENCE UPON PROCEDURAL SAFEGUARDS AND JUDICIAL
SUPERINTENDENCE OF THE CENSOR'S ACTION.  SEE FREEDMAN V. MARYLAND, 380
U.S. 51 (1965).  /9/ 

IN WINTERS V. NEW YORK, 333 U.S. 507 (1948), THIS COURT STRUCK DOWN
AS VAGUE AND INDEFINITE A STATUTORY STANDARD INTERPRETED BY THE STATE
COURT TO BE "CRIMINAL NEWS OR STORIES OF DEEDS OF BLOODSHED OR LUST, SO
MASSED AS TO BECOME VEHICLES FOR INCITING VIOLENT AND DEPRAVED CRIMES .
. . . "  ID., AT 518, IN JOSEPH BURSTYN, INC. V. WILSON, SUPRA, THE
COURT DEALT WITH A FILM LICENSING STANDARD OF "SACRILEGIOUS," WHICH WAS
FOUND TO HAVE SUCH AN ALL-INCLUSIVE DEFINITION AS TO RESULT IN
"SUBSTANTIALLY UNBRIDLED CENSORSHIP."  343 U.S.,AT 502.  FOLLOWING
BURSTYN, THE COURT HELD THE FOLLOWING FILM LICENSING STANDARDS TO BE
UNCONSTITUTIONALLY VAGUE:  "OF SUCH CHARACTER AS TO BE PREJUDICIAL TO
THE BEST INTERESTS OF THE PEOPLE OF SAID CITY," GELLING V. TEXAS, 343
U.S. 960 (1952); "MORAL, EDUCATIONAL OR AMUSING AND HARMLESS," SUPERIOR
FILMS, INC. V. DEPARTMENT OF EDUCATION, 346 U.S. 587 (1954); "APPROVE
SUCH FILMS . . . (AS) ARE MORAL AND PROPER; . . . DISAPPROVE SUCH AS
ARE CRUEL, OBSCENE, INDECENT OR IMMORAL, OR SUCH AS TEND TO DEBASE OR
CORRUPT MORALS," HOLMBY PRODUCTIONS, INC. V. VAUGHN, 350 U.S. 870
(1955).  /10/  SEE ALSO KINGSLEY INT'L PICTURES CORP. V. REGENTS, 360
U.S. 684, 699-702 (CLARK, J., CONCURRING IN RESULT). 

THE VICE OF VAGUENESS IS PARTICULARLY PRONOUNCED WHERE EXPRESSION IS
SOUGHT TO BE SUBJECTED TO LICENSING.  IT MAY BE UNLIKELY THAT WHAT
DALLAS DOES IN RESPECT TO THE LICENSING OF MOTION PICTURES WOULD HAVE A
SIGNIFICANT EFFECT UPON FILM MAKERS IN HOLLYWOOD OR EUROPE.  BUT WHAT
DALLAS MAY CONSTITUTIONALLY DO, SO MAY OTHER CITIES AND STATES. 
INDEED, WE ARE TOLD THAT THIS ORDINANCE IS BEING SUED AS A MODEL FOR
LEGISLATION IN OTHER LOCALITIES.  THUS, ONE WHO WISHES TO CONVEY HIS
IDEAS THROUGH THAT MEDIUM, WHICH OF COURSE INCLUDES ONE WHO IS
INTERESTED NOT SO MUCH IN EXPRESSSION AS IN MAKING MONEY, MUST CONSIDER
WHETHER WHAT HE PROPOSES TO FILM, AND HOW HE PROPOSES TO FILM IT, IS
WITHIN THE TERMS OF CLASSIFICATION SCHEMES SUCH AS THIS.  IF HE IS
UNABLE TO DETERMINE WHAT THE ORDINANCE MEANS, HE RUNS THE RISK OF BEING
FORECLOSED, IN PRACTICAL EFFECT, FROM A SIGNIFICANT PORTION OF THE
MOVIE-GOING PUBLIC.  RATHER THAN RUN THAT RISK, HE MIGHT CHOOSE NOTHING
BUT THE INNOCUOUS, PERHAPS SAVE FOR THE SO-CALLED "ADULT"  PICTURE. 
MOREOVER, A LOCAL EXHIBITOR WHO CANNOT AFFORD TO RISK LOSING THE
YOUTHFUL AUDIENCE WHEN A FILM MAY BE OF MARGINAL INTEREST TO ADULTS--
PERHAPS A "VIVA MARIA"-- MAY CONTRACT TO SHOW ONLY THE TOTALLY INANE. 
THE VAST WASTELAND THAT SOME HAVE DESCRIBED IN REFERENCE TO ANOTHER
MEDIUM MIGHT BE A VERDANT PARADISE IN COMPARISON.  THE FIRST AMENDMENT
INTERESTS HERE ARE, THEREFORE, BROADER THAN MERELY THOSE OF THE FILM
MAKER, DISTRIBUTOR, AND EXHIBITOR, AND CERTAINLY BROADER THAN THOSE OF
YOUTHS UNDER 16. 

OF COURSE, AS THE COURT SAID IN JOSEPH BURSTYN, INC. V. WILSON, 343
U.S.,AT 502, "(IT DOES NOT FOLLOW THAT THE CONSTITUTION REQUIRES
ABSOLUTE FREEDOM TO EXHIBIT EVERY MOTION PICTURE OF EVERY KIND AT ALL
TIMES AND ALL PLACES."  WHAT DOES FOLLOW AT THE LEAST, AS THE CASES
ABOVE ILLUSTRATE, IS THAT THE RESTRICTIONS IMPOSED CANNOT BE SO VAGUE
AS TO SET "THE CENSOR . . . ADRIFT UPON A BOUNDLESS SEA . . . , " ID.,
AT 504.  IN SHORT, AS JUSTICE FRANKFURTER SAID, "LEGISLATION MUST NOT
BE SO VAGUE, THE LANGUAGE SO LOOSE, AS TO LEAVE TO THOSE WHO HAVE TO
APPLY IT TOO WIDE A DISCRETION . . . , " KINGSLEY INT'L PICTURES CORP.
V. REGENTS, 360 U.S.,AT 694 (CONCURRING IN RESULT), ONE REASON BEING
THAT "WHERE LICENSING IS RESTED, IN THE FIRST INSTANCE, IN AN
ADMINISTRATIVE AGENCY, THE AVAILABLE JUDICIAL REVIEW IS IN EFFECT
RENDERED INOPERATIVE (BY VAGUENESS)," JOSEPH BURSTYN, INC. V. WILSON,
SUPRA, AT 532 (CONCURRING IN OPINION).  THUS, TO THE EXTENT THAT VAGUE
STANDARDS DO NOT SUFFICIENTLY GUIDE THE CENSOR, THE PROBLEM IS NOT
CURED MERELY BY AFFORDING DE NOVO JUDICIAL REVIEW.  VAGUE STANDARDS,
UNLESS NARROWED BY INTERPRETATION, ENCOURAGE ERRATIC ADMINISTRATION
WHETHER THE CENSOR BE ADMINISTRATIVE OR JUDICIAL; "INDIVIDUAL
IMPRESSIONS BECOME THE YARDSTICK OF ACTION, AND RESULT IN REGULATION IN
ACCORDANCE WITH THE BELIEFS OF THE INDIVIDUAL CENSOR RATHER THAN
REGULATION BY LAW," KINGSLEY INT'L PICTURES CORP. V. REGENTS, SUPRA, AT
701 (CLARK, J. CONCURRING IN RESULT).  /11/ 

THE DANGERS INHERENT IN VAGUENESS ARE STRIKINGLY ILLUSTRATED IN
THESE CASES.  FIVE MEMBERS OF THE BOARD VIEWED "VIVA MARIA".  EIGHT
MEMBERS VOTED TO CLASSIFY IT IS "NOT SUITABLE FOR YOUNG PERSONS," THE
NINTH MEMBER NOT VOTING.  THE BOARD GAVE NO REASONS FOR ITS
DETERMINATION.  /12/  APPELLEE ALLEGED IN ITS PETITION FOR AN
INJUNCTION THAT THE CLASSIFICATION WAS WARRANTED BECAUSE THE FILM
PROTRAYED "SEXUAL PROMISCUITY IN SUCH A MANNER AS TO BE IN THE JUDGMENT
OF THE BOARD LIKELY TO INCITE OR ENCOURAGE DELINQUENCY OR SEXUAL
PROMISCUITY ON THE PART OF YOUNG PERSONS OR TO APPEAL TO THEIR PRURIENT
INTERESTS."  TWO BOARD MEMBERS, A CLERGYMAN AND A LAWYER, TESTIFIED AT
THE HEARING.  EACH ADVERTED TO SEVERAL SCENES IN THE FILM WHICH, IN
THEIR OPINION, PORTRAYED MALE-FEMALE RELATIONSHIPS IN A WAY CONTRARY TO
"ACCEPTABLE AND APPROVED BEHAVIOR."  EACH ACKNOWLEDGED, IN REFERENCE TO
SCENES IN WHICH CLERGYMEN WERE INVOLVED IN VIOLENCE, MOST OF WHICH WAS
FARCICAL, THAT "SACRILEGE" MIGHT HAVE ENTERED INTO THE BOARD'S
DETERMINATION.  AND BOTH CONCEDED THAT THE ASSERTED PORTRAYAL OF
"SEXUAL PROMISCUITY"  WAS IMPLICIT RATHER THAN EXPLICIT, I.E., THAT IT
WAS THE PRODUCT OF INFERENCE BY, AND IMAGINATION OF, THE VIEWER. 

SO FAR AS "JUDICIAL SUPERINTENDENCE"  /13/  AND DE NOVO REVIEW ARE
CONCERNED, THE TRIAL JUDGE, AFTER VIEWING THE FILM AND HEARING
ARGUMENT, STATED MERELY:  "OH, I REALIZE YOU GENTLEMEN MIGHT BE RIGHT. 
THERE ARE TWO OR THREE FEATURES IN THIS PICTURE THAT LOOK TO ME WOULD
BE UNSUITABLE FOR YOUNG PEOPLE . . . . SO I ENJOIN THE EXHIBITOR . . .
FROM EXHIBITING IT."  NOR DID THE COURT OF CIVIL APPEALS PROVIDE MUCH
ENLIGHTENMENT OR A NARROWING DEFINITION OF THE ORDINANCE.  UNITED
ARTISTS ARGUED THAT THE OBSCENITY STANDARDS SIMILAR TO THOSE SET FORTH
IN ROTH V. UNITED STATES, 354 U.S. 476 (1957), AND OTHER DECISIONS OF
THIS COURT OUGHT TO BE CONTROLLING.  /15/  THE MAJORITY OF THE COURT OF
CIVIL APPEALS HELD, ALTERNATIVELY, (1) THAT SUCH CASES WERE NOT
APPLICABLE BACAUSE THE LEGISLATION INVOLVED IN THEM RESULTED IN
SUPPRESSION OF THE OFFENDING EXPRESSION RATHER THAN ITS CLASSIFICATION;
(2) THAT IF OBSCENITY STANDARDS WERE APPLICABLE THEN "VIVA MARIA" WAS
OBSCENE AS TO ADULTS (A PATENTLY UNTENABLE CONCLUSION; AND (3) THAT IF
OBSCENITY STANDARDS WERE MODIFIED AS TO CHILDREN, THE FILM WAS OBSCENE
AS TO THEM, A CONCLUSION WHICH WAS NOT IN TERMS GIVEN AS A NARROWING
INTERPRETATION OF ANY SPECIFIC PROVISION OF THE ORDINANCE.  402 S.W.2D
770, 775-776.  IN REGARD TO THE LAST ALTERNATIVE HOLDING, WE MUST
CONCLUDE THAT THE COURT IN EFFECT RULED THAT THE "PROTRAYAL . . . OF
SEXUAL PROMISCUITY AS ACCEPTABLE," ID., AT 775, IS IN ITSELF OBSCENE AS
TO CHILDREN.  /16/  THE COURT ALSO HELD THAT THE STANDARDS OF THE
ORDINANCE WERE "SUFFICIENTLY DEFINITE."  IBID. 

THUS, WE ARE LEFT MERELY WITH THE FILM AND DIRECTED TO THE WORDS OF
THE ORDINANCE.  THE TERM "SEXUAL PROMISCUITY" IS NOT THERE DEFINED /17/
AND WAS NOT INTERPRETED IN THE STATE COURTS.  IT COULD EXTEND,
DEPENDING UPON ONE'S MORAL JUDGMENT, FROM THE OBVIOUS TO ANY SEXUAL
CONTACTS OUTSIDE A MARITAL RELATIONSHIP.  THE DETERMINATIVE MANNER OF
THE "DESCRIBING OR PORTRAYING" OF THE SUBJECTS COVERED BY THE ORDINANCE
(SEE SUPRA, AT 681), INCLUDING "SEXUAL PROMISCUITY," IS DEFINED AS
"SUCH A MANNER AS TO BE, IN THE JUDGMENT OF THE BOARD, LIKELY TO INCITE
OR ENCOURAGE DELINQUENCY OR SEXUAL PROMISCUITY ON THE PART OF YOUNG
PERSONS.  A FILM IS SO "'LIKELY TO INCITE OR ENCOURAGE' CRIME
DELINQUENCY OR SEXUAL PROMISCUITY ON THE PART OF YOUNG PERSONS, IF, IN
THE JUDGMENT OF THE BOARD, THERE IS A SUBSTANTIAL PROBABILITY THAT IS
WILL CREATE THE IMPRESSION ON YOUNG PERSONS THAT SUCH CONDUCT IS
PROFITABLE, DESIRABLE, ACCEPTABLE, RESPECTABLE PRAISEWORTHY OR COMMONLY
ACCEPTED."  IT MIGHT BE EXCESSIVE LITERALISM TO INSIST, AS DO
APPELLANTS, THAT BECAUSE THOSE LAST SIX ADJECTIVES ARE STATED IN THE
DISJUNCTIVE, THEY REPRESENT SEPARATE AND ALTERNATIVE SUBTLE
DETERMINATIONS THE BOARD IS TO MAKE, ANY OF WHICH RESULTS IN A NOT
SUITABLE CLASSIFICATION.  NONETHELESS, "(WHAT MAY BE TO ONE VIEWER THE
GLORIFICATION OF AN IDEA AS BEING 'DESIRABLE, ACCEPTABLE OR PROPER' MAY
TO THE NOTIONS OF ANOTHER BE ENTIRELY DEVOID OF SUCH A TEACHING.  THE
ONLY LIMITS ON THE CENSOR'S DISCRETION IS HIS UNDERSTANDING OF WHAT IS
INCLUDED WITHIN THE TERM 'DESIRABLE, ACCEPTABLE OR PROPER.'  THIS IS
NOTHING LESS THAN A ROVING COMMISSION.  . . . "  KINGSLEY INT'L
PICTURES CORP. V. REGENTS, 360 U.S.,AT 701, (CLARK, J., CONCURRING IN
RESULT).  /18/ 

VAGUENESS AND THE ATTENDANT EVILS WE HAVE EARLIER DESCRIBED, SEE
SUPRA, AT 683-685, ARE NOT RENDERED LESS OBJECTIONABLE BECAUSE THE
REGULATION OF EXPRESSION IS ONE OF CLASSIFICATION RATHER THAN DIRECT
SUPPRESSION.  CF. BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58 (1963). 
/19/  NOR IS IT AN ANSWER TO AN ARGUMENT THAT A PARTICULAR REGULATION
OF EXPRESSION IS VAGUE TO SAY THAT IT WAS ADOPTED FOR THE SALUTARY
PURPOSE OF PROTECTING CHILDREN.  THE PERMISSIBLE EXTENT OF VAGUENESS IS
NOT DIRECTLY PROPORTIONAL TO, OR A FUNCTION OF, THE EXTENT OF THE POWER
TO REGULATE OR CONTROL EXPRESSION WITH RESPECT TO CHILDREN.  AS CHIEF
JUDGE FULD HAS SAID: 

     "IT IS . . . ESSENTIAL THAT LEGISLATION AIMED AT PROTECTING

  CHILDREN FROM ALLEGEDLY HARMFUL EXPRESSION-- NO LESS THAN

  LEGISLATION ENACTED WITH RESPECT TO ADULTS-- BE CLEARLY DRAWN AND

  THAT THE STANDARDS ADOPTED BE REASONABLY PRECISE SO THAT THOSE

  WHO ARE GOVERNED BY THE LAW AND THOSE THAT ADMINISTER IT WILL

  UNDERSTAND ITS MEANING AND APPLICATION."  PEOPLE V. KAHAN, 15

  N.Y.2D 311, 313, 206 N.E.2D 33, 335 (1965) (CONCURRING OPINION). 

  /20/

THE VICES-- THE LACK OF GUIDANCE TO THOSE WHO SEEK TO ADJUST THEIR
CONDUCT AND TO THOSE WHO SEEK TO ADMINISTER THE LAW, AS WELL AS THE
POSSIBLE PRACTICAL CURTAILING OF THE EFFECTIVENESS OF JUDICIAL REVIEW--
ARE THE SAME. 

IT IS NOT OUR PROVINCE TO DRAFT LEGISLATION.  SUFFICE IT TO SAY THAT
WE HAVE RECOGNIZED THAT SOME BELIEVE "MOTION PICTURES POSSESS A GREATER
CAPACITY FOR EVIL, PARTICULARLY AMONG THE YOUTH OF A COMMUNITY, THAN
OTHER MODES OF EXPRESSION," JOSEPH BURSTYN, INC. V. WILSON, SUPRA, AT
502, AND WE HAVE INDICATED MORE GENERALLY THAT BECAUSE OF ITS STRONG
AND ABIDING INTEREST IN YOUTH, A STATE MAY REGULATE THE DISSEMINATION
TO JUVENILES OF, AND THEIR ACCESS TO, MATERIAL OBJECTIONABLE TO THEM,
BUT WHICH A STATE CLEARLY COULD NOT REGULATE AS TO ADULTS.  GINSBERG V.
NEW YORK, ANTE, P. 629.  /21/  HERE WE CONCLUDE ONLY THAT "THE ABSENCE
OF NARROLWLY DRAWN, REASONABLE AND DEFINITE STANDARDS FOR THE OFFICIALS
TO FOLLOW," NIEMOTKO V. MARYLAND, 340 U.S. 268, 271 (1951), IS FATAL. 
/22/ 

THE JUDGMENT OF THE TEXAS COURT OF CIVIL APPEALS IS REVERSED AND THE
CASES ARE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

              IT IS SO ORDERED. 

/1A/  TOGETHER WITH NO. 64, UNITED ARTISTS CORP. V. CITY OF DALLAS,
ON APPEAL FROM THE SAME COURT. 

/1/  402 S.W.2D 770 (1966).  THE TEXAS SUPREME COURT DENIED
DISCRETIONARY REVIEW AND THEREFORE THE APPEAL IS FROM THE JUDGMENT OF
THE COURT OF CIVIL APPEALS.  28 U.S.C. 1257(2). 

/2/  THE ORDINANCE IS SET FORTH IN AN APPENDIX TO THIS OPINION.  THE
PARTIES DISAGREE AS TO THE MEANING OF CERTAIN OF ITS PROVISIONS THAT
HAVE NOT BEEN AUTHORITATIVELY INTERPRETED BY COURTS OF THE STATE.  THE
DIFFERENCES ARE NOT MATERIAL TO OUR DECISION, HOWEVER, AND THE SUMMARY
OF THE ORDINANCE IN THE TEXT ABOVE SHOULD NOT BE TAKEN AS ACCEPTANCE BY
US OF ANY OF THE PARTIES' CONFLICTING INTERPRETATIONS, NOR AS
EXPRESSING ANY VIEW ON THE VALIDITY OF PROVISIONS OF THE ORDINANCE NOT
CHALLENGED HERE. 

/3/  THE TWO-DAY PERIOD IS APPARENTLY PART OF AN ATTEMPT TO ASSURE
PROMPT FINAL DETERMINATION.  THE ORDINANCE ALSO PROVIDES THAT "ANY
INITIAL OR SUBSEQUENT EXHIBITOR" MAY SEEK RECLASSIFICATION OF A FILM
PREVIOUSLY CLASSIFIED. 

/4/  APPELLANTS ASSERT THAT, DESPITE THE SEEMINGLY CLEAR WORDS OF
THE SUSPENSION PROVISION, EXHIBITORS IN PRACTICE HAVE NOT BEEN FREE TO
SHOW FILMS WITHOUT A NOT SUITABLE NOTIFICATION WHILE A COURT CHALLENGE
IS PENDING, EVEN THOUGH AN INJUNCTION HAS NOT ISSUED WITHIN THE 10-DAY
PERIOD.  SEE N. 2, SUPRA. 

/5/  402 S.W.2D.  770, 774-775. 

/6/  APPELLEE SAYS THAT YOUTHS UNDER 16 YEARS OF AGE ACCOMPANIED
THROUGHOUT THE SHOWING OF THE PICTURE BY A GUARDIAN (PARENT) OR SPOUSE,
MAY ATTEND NOT SUITABLE FILMS.  APPELLANTS READ THE ORDINANCE AS MAKING
THE EXISTENCE OF SUCH ACCOMPANIMENT SOLELY A MATTER OF DEFENSE SHOULD A
CRIMINAL PROSECUTION ENSUE.  SEE N. 2, SUPRA. 

/7/  SEE N. 6, SUPRA.  IT APPEARS THAT A PARENT WHO PRUCHASES A
TICKET TO A NOT SUITABLE FILM AND GIVES IT TO HIS CHILD IS SUBJECT TO
THE MISDEMEANOR PENALTY OF THE ORDINANCE.  TO BE SURE, APPELLEE
INDICATED AT ORAL ARGUMENT THAT CRIMINAL SANCTIONS HAVE NOT BEEN SOUGHT
AGAINST ANYONE UNDER THE ORDINANCE. 

/8/  IN RELATED LITIGATION, THE PROVISION FOR REVOCATION OF THE
SPECIAL LICENSE WAS HELD UNCONSTITUTIONAL AS VIOLATIVE OF BUTLER V.
MICHIGAN, 352 U.S. 380 (1957), BY DISTRICT JUDGE HUGHES, 249 F.SUPP. 
19, 25 (D.C.N.D. TEX., 1965), AND THAT RULING WAS NOT CHALLENGED ON
APPEAL.  SEE INTERSTATE CIRCUIT, INC. V. CITY OF DALLAS, 366 F.2D 590,
593, N. 5 (C.A. 5TH CIR. 1966). 

/9/  SEE ALSO TEITEL FILM CORP. V. CUSACK, ANTE, P. 139. 

/10/  THERE ARE NUMEROUS STATE CASES TO THE SAME EFFECT.  SEE, E.G.,
POLICE COMMISSIONER V. SIEGEL ENTERPRISES, INC., 223 MD. 110, 162 A.2D
727, CERT. DENIED, 364 U.S. 909 (1960) ("VIOLENT BLOODSHED, LUST OR
IMMORALITY OR WHICH, FOR A CHILD BELOW THE AGE OF EIGHTEEN, ARE
OBSCENE, LEWD, LASCIVIOUS, FILTHY, INDECENT OR DISGUSTING AND SO
PRESENTED AS REASONABLY TO TEND TO INCITE SUCH A CHILD TO VIOLENCE OR
DEPRAVED OR IMMORAL ACTS"); PEOPLE V. KAHAN, 15 N.Y.2D 311, 206 N.E.2D
333 (1965); PEOPLE V. BOOKCASE, INC., 14 N.Y.2D 409, 201 N.E.2D 14
(1964) ("DESCRIPTIONS OF ILLICIT SEX OR SEXUAL IMMORALITY"); HALLMARK
PRODUCTIONS, INC V. CARROLL, 384 PA. 348, 121 A.2D 584 (1956)
("SACRILEGIOUS, OBSCENE, INDECENT, OR IMMORAL, OR SUCH AS TEND . . . TO
DEBASE OR CORRUPT MORALS").  IN PARAMOUNT FILM DISTRIBUTING CORP. V.
CITY OF CHICAGO, 172 F.SUPP.  69 (D.C.N.D. ILL. 1959), IT WAS
ALTERNATIVELY HELD THAT THE STANDARD "TENDS TOWARD CREATING A HARMFUL
IMPRESSION ON THE MINDS OF CHILDREN" WAS INDEFINITE; THAT PROVISION HAD
NO FURTHER LEGISLATIVE OR JUDICIAL DEFINITION AND IS THEREFORE UNLIKE
THE STATUTE IN GENSBERG V. NEW YORK, ANTE, AT 643, WHERE THE PHRASE
"HARMFUL TO MINORS" IS SPECIFICALLY AND NARROWLY DEFINED IN ACCORDANCE
WITH TESTS THIS COURT HAS SET FORTH FOR JUDGING OBSCENITY. 

/11/  SEE ALSO AMSTERDAM, NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN
THE SUPREME COURT, 109 U.PA.L.REV.  67, 90 (1960); KLEIN, FILM
CENSORSHIP:  THE AMERICAN AND BRITISH EXPERIENCE, 12 VILL.L.REV.  419,
428 (1967). 

/12/  THE ORDINANCE DOES NOT REQUIRE THE BOARD TO GIVE REASONS FOR
ITS ACTION.  COMPARE ACLU V. CITY OF CHICAGO, 12 ILL.APP.2D 278, 286,
141 N.W.2D 56, 60 (1957): 

"(THE CENSORING AUTHORITY, IN REFUSING TO ISSUE A PERMIT FOR SHOWING
THE FILM, SHOULD BE OBLIGED TO SPECIFY REASONS FOR SO DOING . . . . THE
TRIAL COURT, AS WELL AS THE REVIEWING COURT, WOULD THEN HAVE A RECORD,
IN ADDITION TO THE FILM ITSELF, ON WHICH TO DECIDE WHETHER THE BAN
SHOULD BE APPROVED . . . . WITHOUT SUCH PROCEDURE, THE COURTS BECOME,
NOT ONLY THE FINAL TRIBUNAL TO PASS UPON FILMS, BUT THE ONLY TRIBUNAL
TO ASSUME THE RESPONSIBILITIES OF THE CENSORING AUTHORITY." 

ACCORD, ZENITH INT'L FILM CORP. V. CITY OF CHICAGO, 291 F.2D 785
(C.A. 7TH CIR. 1961).  SEE ALSO NOTE, 71 HARV.L.REV.  326, 338 (1957). 

/13/  BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58, 70 (1963).  SEE
FREEDMAN V. MARYLAND, SUPRA. 

/14/  IN RESPONSE TO A REQUEST THAT HE MAKE FINDINGS, THE TRIAL
JUDGE STATED:  "I DECLINE.  I HAVE SO MANY IRONS FOR A LITTLE FELLOW. 
I HAVE TAKEN ON MORE THAN I CAN DO, TRYING TO DECIDE A BIG CASE HERE,
AND I HAVE GOT OTHERS AT HOME AND HERE IN THE HILL COUNTY WHERE I HAVE
BEEN HELPING OUT, AND I DO NOT HAVE TIME TO DO IT.  I DELCINE." 

/15/  APPELLANTS ALSO CONTEND HERE THAT, IN ADDITION TO ITS
VAGUENESS, THE ORDINANCE IS INVALID BECAUSE IT AUTHORIZES THE RESTRAINT
OF FILMS ON CONSTITUTIONALLY IMPERMISSIBLE GROUNDS, ARGUING THAT THE
LIMITS ON REGULATION OF EXPRESSION ARE THOSE OF OBSCENITY, OR AT LEAST
OBSCENITY AS JUDGED FOR CHILDREN.  IN LIGHT OF OUR DISPOSITION ON
VAGUENESS GROUNDS, WE DO NOT REACH THAT ISSUE. 

/16/  A CONCURRING JUSTICE OF THAT COURT, WITH WHOM THE AUTHOR OF THE
MAJORITY OPINION AGREED, SPECIFICALLY REJECTED THE VIEW THAT OBSCENITY
STANDARDS WERE RELEVANT AT ALL IN DETERMINING THE LIMITS OF THE
ORDINANCE.  BUT NOTHING IN THAT OPINION CLARIFIES THAT STANDARDS
ADOPTED.  402 S.W.2D, AT 777-779. 

/17/ APPELLEE ADOPTED AN AMENDMENT TO THE ORDINANCE IN MARCH 1966,
WHICH IS NOT INVOLVED HERE.  IT DEFINES "SEXUAL PROMISCUITY" AS
"INDISCRIMINATE SEXUAL INTIMACIES BEYOND THE CUSTOMARY LIMITS OF CANDOR
IN THE COMMUNITY, AND SAID TERM AS DEFINED HEREIN SHALL INCLUDE, BUT
NOT BE LIMITED TO SEXUAL INTERCOURSE AS THAT TERM IS DEFINED." 

/18/  AN ALTERNATIVE TO "LIKELY TO INCITE" BECAUSE THE PORTRAYAL
MIGHT "CREATE THE THE IMPRESSION . . . (THE) CONDUCT IS PROFITABLE,
DESIRABLE," ETC., IS SET FORTH IN THE ORDINANCE.  THAT IS IF THE MANNER
OF PRESENTATION IS "LIKELY . . . TO APPEAL TO THEIR (YOUNG PERSONS')
PRURIENT INTEREST."  THAT ALTERNATIVE, HOWEVER, WAS NOT RELIED UPON BY
THE BOARD MEMBERS WHO TESTIFIED, NOR BY THE APPELLATE COURT. 

/19/  IN BANTAM BOOKS, THE COMMISSION THERE CHARGED WITH REVIEWING
MATERIAL "MANIFESTLY TENDING TO THE CORRUPTION OF THE YOUTH" (372 U.S.,
AT 59) HAD NO DIRECT REGULATORY OR SUPPRESSING FUNCTIONS, ALTHOUGH ITS
INFORMAL SANCTIONS WERE FOUND TO ACHIEVE THE SAME RESULT.  THE COURT
HELD THAT "SYSTEM OF INFORMAL CENSORSHIP" (ID., AT 71) TO VIOLATE THE
FOURTEENTH AMENDMENT.  ONE IMPORTANT FACTOR IN THAT DECISION WAS THE
COMMISSION'S "VAGUE AND UNINFORMATIVE" MANDATE, WHICH THE COMMISSION IN
PRACTICE HAD "DONE NOTHING TO MAKE . . . MORE PRECISE."  IBID.  SEE
ALSO I. CARMEN, MOVIES, CENSORSHIP, AND THE LAW, PASSIM (1966); KLEIN,
FILM CENSORSHIP:  THE AMERICAN AND BRITISH EXPERIENCE, 12 VILL.L.REV. 
419, 455 (1967); NOTE, 71 HARV.L.REV.  326, 342 (1957). 

/20/  SEE ALSO, E.G., KATZEV V. COUNTY OF LOS ANGELES, 52 CAL.2D
360, 341 P.2D 310 (1959) (MAGAZINE SALES TO MINORS UNDER AGE 18);
PEOPLE V. BOOKCASE, INC., SUPRA, N. 10 (BOOK SALES TO MINORS UNDER 18);
POLICE COMMISSIONER V. SIEGAL ENTERPRISES, INC., SUPRA, N. 10 (SALE OF
CERTAIN PUBLICATIONS TO THOSE UNDER 18); PARAMOUNT FILM DISTRIBUTING
CORP. V. CITY OF CHICAGO, SUPRA, N. 10 (SPECIAL LICENSE FOR FILMS
DEEMED OBJECTIONABLE FOR THOSE UNDER AGE 21). 

/21/  ON AGE CLASSIFICATION WITH REGARD TO VIEWING MOTION PICTURES,
SEE GENERALLY I. CARMEN, MOVIES, CENSORSHIP, AND THE LAW 247-260
(1966); NOTE, 69 YALE L.J. 141 (1959). 

/22/  APPELLANTS ALSO ASSERT THAT THE CITY ORDINANCE VIOLATES THE
TEACHINGS OF FREEDMAN V. MARYLAND, SUPRA, BECAUSE IT DOES NOT SECURE
PROMPT STATE APPELLATE REVIEW.  THE ASSURANCE OF A "PROMPT FINAL
JUDICIAL DECISION" (380 U.S.,AT 59) IS MADE HERE, WE THINK BY THE
GUARANTY OF A SPEEDY DETERMINATION IN THE TRIAL COURT (IN THIS CASE
NINE DAYS AFTER THE BOARD'S CLASSIFICATION).  SEE TEITEL FILM CORP. V.
CUSACK, ANTE, P. 139.  NOR IS FREEDMAN VIOLATED BY THE REQUIREMENT THAT
THE EXHIBITOR FILE A NOTICE OF NONACCEPTANCE OF THE BOARD'S
CLASSIFICATION.  TO BE SURE, IT IS EMPHASIZED IN FREEDMAN THAT "ONLY A
PROCEDURE REQUIRING A JUDICIAL DETERMINATION SUFFICES TO IMPOSE A VALID
FINAL RESTRAINT" (380 U.S.,AT 58), AND HERE IS THE EXHIBITOR CHOOSES
NOT TO FILE THE NOTICE OF NONACCEPTANCE, THE BOARD'S DETERMINATION IS
FINAL WITHOUT JUDICIAL APPROVAL.  BUT WE ARE NOT CONSTRAINED TO VIEW
THAT PROCEDURE AS INVALID IN THE ABSENCE OF A SHOWING THAT IT HAS ANY
SIGNIFICANTLY GREATER EFFECT THAN WOULD THE EXHIBITOR'S DECISION NOT TO
CONTEST IN COURT THE BOARD'S SUIT FOR A TEMPORARY INJUNCTION.  THE
ORDINANCE PROVIDES THAT THE BOARD HAS THE BURDEN OF GOING TO COURT TO
SEEK A TEMPORARY INJUNCTION, ONCE THE EXHIBITOR HAS INDICATED HIS
NONACCEPTANCE, AND PROCEEDING BEFORE THE BOARD.  THERE IT HAS THE
BURDEN OF SUSTAINING ITS CLASSIFICATION.     FINALLY, APPELLANT UNITED
ARTISTS CONTENDS THE ORDINANCE UNCONSTITUTIONALLY INFRINGES UPON ITS
RIGHTS BY NOT PROVIDING FOR PARTICIPATION BY A DISTRIBUTOR, WHO MIGHT
WISH TO CONTEST WHERE AN EXHIBITOR WOULD NOT.  OF COURSE THE
DISTRIBUTOR MUST BE PERMITTED TO CHALLENGE THE CLASSIFICATION, CF.
BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58, 64, N. 6 (1963), BUT THE
APPELLEE ASSURES US HE MAY (SEE N. 2, SUPRA) AND UNITED ARTISTS WAS
PERMITTED TO INTERVENE IN THE TRIAL COURT. 

        APPENDIX TO OPINION OF THE COURT. 

CHAPTER 46A OF THE 1960 REVISED CODE OF CIVIL AND CRIMINAL
ORDINANCES OF THE CITY OF DALLAS, AS AMENDED, PROVIDES: 


(A) "FILM" MEANS ANY MOTION PICTURE FILM OR SERIES OF FILMS, WHETHER
FULL LENGTH OR SHORT SUBJECT, BUT DOES NOT INDUCE NEWSREELS PORTRAYING
ACTUAL CURRENT EVENTS OR PICTORIAL NEWS OF THE DAY. 

(B) "EXHIBIT" MEANS TO PROJECT A FILM AT ANY MOTION PICTURE THEATER
OR OTHER PUBLIC PLACE WITHIN THE CITY OF DALLAS TO WHICH TICKETS ARE
SOLD FOR ADMISSION. 

(C) "EXHIBITOR" MEANS ANY PERSON, FILM OR CORPORATION WHICH EXHIBITS
A FILM. 

(D) "YOUNG PERSON" MEANS ANY PERSON WHO HAS NOT ATTAINED HIS
SIXTEENTH BIRTHDAY. 

(E) "BOARD" MEANS THE DALLAS MOTION PICTURE CLASSIFICATION BOARD
ESTABLISHED BY SECTION 46A-2 OF THIS ORDINANCE. 

(F) "NOT SUITABLE FOR YOUNG PERSONS" MEANS: 

(1) DESCRIBING OF PORTRAYING BRUTALITY, CRIMINAL VIOLENCE OR DEPRAVITY
IN SUCH A MANNER AS TO BE, IN THE JUDGMENT OF THE BOARD, LIKELY TO
INCITE OR ENCOURAGE CRIME OR DELINQUENCY OF THE PART OF YOUNG PERSONS;
OR 

(2) DESCRIBING OR PORTRAYING NUDITY BEYOND THE CUSTOMARY LIMITS OF
CANDOR IN THE COMMUNITY, OR SEXUAL PROMISCUITY OR EXTRA-MARITAL OR
ABNORMAL SEXUAL RELATIONS IN SUCH A MANNER AS TO BE, IN THE JUDGMENT OF
THE BOARD, LIKELY TO INCITE OR ENCOURAGE DELINQUENCY OR SEXUAL
PROMISCUITY ON THE PART OF YOUNG PERSONS OR TO APPEAL TO THEIR PRURIENT
INTEREST. 

A FILM SHALL BE CONSIDERED "LIKELY TO INCITE OR ENCOURAGE" CRIME
DELINQUENCY OR SEXUAL PROMISCUITY ON THE PART OF YOUNG PERSONS, IF, IN
THE JUDGMENT OF THE BOARD, THERE IS A SUBSTANTIAL PROBABILITY THAT IT
WILL CREATE THE IMPRESSION ON YOUNG PERSONS THAT SUCH CONDUCT IS
PROFITABLE, DESIRABLE, ACCEPTABLE RESPECTABLE, PRAISEWORTHY OR COMMONLY
ACCEPTED.  A FILM SHALL BE CONSIDERED AS APPEALING TO "PRURIENT
INTEREST" OF YOUNG PERSONS, IF IN THE JUDGMENT OF THE BOARD, ITS
CALCULATED OR DOMINANT EFFECT ON YOUNG PERSONS IS SUBSTANTIALLY TO
AROUSE SEXUAL DESIRE.  IN DETERMINING WHETHER A FILM IS "NOT SUITABLE
FOR YOUNG PERSONS," THE BOARD SHALL CONSIDER THE FILMS AS A WHOLE,
RATHER THAN ISOLATED PORTIONS, AND SHALL DETERMINE WHETHER ITS HARMFUL
EFFECTS OUTWEIGH ARTISTIC OR EDUCATIONAL VALUES SUCH FILM MAY HAVE FOR
YOUNG PERSONS. 

(G) "CLASSIFY" MEANS TO DETERMINE WHETHER A FILM IS:  7 (1) SUITABLE
FOR YOUNG PERSONS, OR;

  (2) NOT SUITABLE FOR YOUNG PERSONS. 

(H) "ADVERTISEMENT" MEANS ANY COMMERCIAL PROMOTION MATERIAL
INITIATED BY AN EXHIBITOR DESIGNED TO BRING A FILM TO PUBLIC ATTENTION
OR TO INCREASE THE SALE OF TICKETS TO EXHIBITIONS OF SAME, WHETHER BY
NEWSPAPER, BILLBOARD, MOTION PICTURE, TELEVISION, RADIO, OR OTHER MEDIA
WITHIN OR ORIGINATING WITHIN THE CITY OF DALLAS. 

(I) "INITIAL EXHIBITION" MEANS THE FIRST EXHIBITION OF ANY FILM
WITHIN THE CITY OF DALLAS. 

(J) "SUBSEQUENT EXHIBITION" MEANS ANY EXHIBITION SUBSEQUENT TO THE
INITIAL EXHIBITION, WHETHER BY THE SAME OR A DIFFERENT EXHIBITOR. 

(K) "FILE" MEANS TO DELIVER TO THE CITY SECRETARY FOR SAFEKEEPING AS
A PUBLIC RECORD FOR THE CITY OF DALLAS. 

(L) "CLASSIFICATION ORDER" MEANS ANY WRITTEN DETERMINATION BY A
MAJORITY OF THE BOARD CLASSIFYING A FILM, OR GRANTING OR REFUSING AN
APPLICATION FOR CHANGE OF CLASSIFICATION. 

(M) THE TERM "BOARD" AS USED AND APPLIED IN SUBSECTION (A) OF
ENFORCE THIS ORDINANCE AND THE CITY ATTORNEY OF THE CITY OF DALLAS WHEN
REPRESENTING THE BOARD OR THE CITY OF DALLAS. 


THERE IS HEREBY CREATED A BOARD TO BE KNOWN AS THE DALLAS MOTION
PICTURE CLASSIFICATION BOARD WHICH SHALL BE COMPOSED OF A CHAIRMAN AND
EIGHT MEMBERS TO BE APPOINTED BY THE MAYOR AND CITY COUNCIL OF THE CITY
OF DALLAS, WHOSE TERMS SHALL BE THE SAME AS MEMBERS OF THE CITY
COUNCIL.  SUCH MEMBERS SHALL SERVE WITHOUT PAY AND SHALL ADOPT SUCH
RULES AND REGULATIONS AS THEY DEEM BEST GOVERNING THEIR ACTION,
PROCEEDING AND DELIBERATIONS AND TIME AND PLACE OF MEETING.  THESE
RULES AND REGULATIONS SHALL BE SUBJECT TO APPROVAL OF THE CITY
COUNCIL.  IF A VACANCY OCCURS UPON THE BOARD BY DEATH, RESIGNATION OR
OTHERWISE, THE GOVERNING BODY OF THE CITY OF DALLAS SHALL APPOINT A
MEMBER TO FILL SUCH VACANCY FOR THE UNEXPIRED TERM. 

THE CHAIRMAN AND ALL MEMBERS OF THE BOARD SHALL BE GOOD, MORAL, LAW
ABIDING CITIZENS OF THE CITY OF DALLAS AND SHALL BE CHOSEN SO FAR AS
REASONABLY PRACTICABLE IN SUCH A MANNER THAT THEY WILL REPRESENT A
CROSS SECTION OF THE COMMUNITY.  INSOFAR AS PRACTICABLE, THE MEMBERS
APPOINTED TO THE BOARD SHALL BE PERSONS EDUCATED AND EXPERIENCED IN ONE
OR MORE OF THE FOLLOWING FIELDS:  ART, DRAMA, LITERATURE, PHILOSOPHY,
SOCIOLOGY, PSYCHOLOGY, HISTORY, EDUCATION, MUSIC, SCIENCE OR OTHER
RELATED FIELDS.  THE CITY SECRETARY SHALL ACT AS SECRETARY OF THE
BOARD. 


(A) BEFORE ANY INITIAL EXHIBITION, THE EXHIBITOR SHALL FILE A
PROPOSED CLASSIFICATION OF THE FILM TO BE EXHIBITED, STATING THE TITLE
OF THE FILM AND THE NAME OF THE PRODUCER, AND GIVING A SUMMARY OF THE
PLOT AND SUCH OTHER INFORMATION AS THE BOARD MAY BY RULE REQUIRE,
TOGETHER WITH THE CLASSIFICATION PROPOSED BY THE EXHIBITOR.  THE BOARD
SHALL EXAMINE SUCH PROPOSED CLASSIFICATION, AND IF IT APPROVES SAME,
SHALL MARK IT "APPROVED" AND FILE IT AS ITS OWN CLASSIFICATION ORDER. 
IF THE BOARD FAILS TO ACT, THAT IS, EITHER FILE A CLASSIFICATION ORDER
OR HOLD A HEARING WITHIN FIVE (5) DAYS AFTER SUCH PROPOSED
CLASSIFICATION IS FILED, THE PORPOSED CLASSIFICATION SHALL BE
CONSIDERED APPROVED. 

(B) IF UPON EXAMINATION OF THE PROPOSED CLASSIFICATION A MAJORITY OF
THE BOARD IS NOT SATISFIED THAT IT IS PROPER, THE CHAIRMAN SHALL DIRECT
THE EXHIBITOR TO PROJECT THE FILM BEFORE ANY FIVE (5) OR MORE MEMBERS
OF THE BOARD, AT A SUITABLY EQUIPPED PLACE AND AT A SPECIFIED TIME,
WHICH SHALL BE THE EARLIEST TIME PRACTICABLE WITH DUE REGARD TO THE
AVAILABILITY OF THE FILM.  THE EXHIBITOR, OR HIS DESIGNATED
REPRESENTATIVE, MAY AT SUCH TIME MAKE SUCH STATEMENT TO THE BOARD IN
SUPPORT OF HIS PROPOSED CLASSIFICATION AND PRESENT SUCH TESTIMONY AS HE
MAY DESIRE.  WITHIN TWO (2) DAYS, THE BOARD SHALL MAKE AND FILE ITS
CLASSIFICATION OF THE FILM IN QUESTION. 

(C) ANY INITIAL OR SUBSEQUENT EXHIBITOR MAY FILE AN APPLICATION FOR
A CHANGE IN THE CLASSIFICATION OF ANY FILM PREVIOUSLY CLASSIFIED.  NO
EXHIBITOR SHALL BE ALLOWED TO FILE MORE THAN ONE (1) APPLICATION FOR
CHANGE OF CLASSIFICATION OF THE SAME FILM.  SUCH APPLICATION SHALL
CONTAIN A SWORN STATEMENT OF THE GROUNDS UPON WHICH THE APPLICATION IS
BASED.  UPON FILING OF SUCH APPLICATION, THE CITY SECRETARY SHALL BRING
IT IMMEDIATELY TO THE ATTENTION OF THE CHAIRMAN OF THE BOARD, WHO UPON
APPLICATION BY THE EXHIBITOR SHALL SET A TIME AND PLACE FOR A HEARING
AND SHALL NOTIFY THE APPLICANTS AND ALL INTERESTED PARTIES, INCLUDING
ALL EXHIBITORS WHO MAY BE EXHIBITING OR PREPARING TO EXHIBIT THE FILM. 
THE BOARD SHALL VIEW THE FILM AND AT SUCH HEARING, HEAR THE STATEMENTS
OF ALL INTERESTED PARTIES, AND ANY PROPER TESTIMONY THAT MAY BE
OFFERED, AND SHALL WITHIN TWO (2) DAYS THEREAFTER MAKE AND FILE ITS
ORDER APPROVING OR CHANGING SUCH CLASSIFICATION.  IF THE CLASSIFICATION
OF A FILM IS CHANGED AS A RESULT OF SUCH HEARING TO THE CLASSIFICATION
"NOT SUITABLE FOR YOUNG PERSONS," THE EXHIBITORS SHOWING THE FILM SHALL
HAVE SEVEN (7) DAYS IN WHICH TO ALTER THEIR ADVERTISING AND AUDIENCE
POLICY TO COMPLY WITH SUCH CLASSIFICATION. 

(D) UPON FILING BY THE BOARD OF ANY CLASSIFICATION ORDER, THE CITY
SECRETARY SHALL IMMEDIATELY ISSUE AND MAIL A NOTICE OF CLASSIFICATION
TO THE EXHIBITOR INVOLVED AND TO ANY OTHER EXHIBITOR WHO SHALL REQUEST
SUCH NOTICE. 

(E) A CLASSIFICATION SHALL BE BINDING ON ANY SUBSEQUENT EXHIBITOR
UNLESS AND UNTIL HE OBTAINS A CHANGE OF CLASSIFICATION IN THE MANNER
ABOVE PROVIDED. 


(A) IT SHALL BE UNLAWFUL FOR ANY EXHIBITOR OR HIS EMPLOYEE: 

(1) TO EXHIBIT ANY FILM WHICH HAS NOT BEEN CLASSIFIED AS PROVIDED IN
THIS ORDINANCE. 

(2) TO EXHIBIT ANY FILM CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS"
IF ANY CURRENT ADVERTISEMENT OF SUCH FILM BY SUCH EXHIBITOR FAILS TO
STATE CLEARLY THE CLASSIFICATION OF SUCH FILM. 

(3) TO EXHIBIT ANY FILM CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS"
WITHOUT KEEPING SUCH CLASSIFICATION POSTED PROMINENTLY IN FRONT OF THE
THEATRE IN WHICH SUCH FILM IS BEING EXHIBITED. 

(4) KNOWINGLY TO SELL OR GIVE TO ANY YOUNG PERSON A TICKET TO ANY
FILM CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS." 

(5) KNOWINGLY TO PERMIT ANY YOUNG PERSON TO VIEW THE EXHIBITION OF
ANY FILM CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS." 

(6) TO EXHIBIT ANY FILM CLASSIFED "NOT SUITABLE FOR YOUNG PERSONS"
OR ANY SCENE OR SCENES FROM SUCH A FILM, OR FROM AN UNCLASSIFIED FILM
WHETHER A MOVING OR STILL, IN THE SAME THEATRE AND ON THE SAME PROGRAM
WITH A FILM CLASSIFIED "SUITABLE FOR YOUNG PERSONS"; PROVIDED THAT ANY
ADVERTISING PREVIEW OR TRAILER CONTAINING A SCENE OR SCENES FROM AN
UNCLASSIFIED FILM OR A FILM CLASSIFED "NOT SUITABLE FOR YOUNG PERSONS"
MAY BE SHOWN AT ANY TIME IF SAME HAS BEEN SEPARATELY CLASSIFIED AS
"SUITABLE FOR YOUNG PERSONS" UNDER THE PROVISIONS OF SECTION 46A-3 OF
THIS ORDINANCE. 

(7) TO MAKE ANY FALSE OR WILLFULLY MISLEADING STATEMENT IN ANY
PROPOSED CLASSIFICATION, APPLICATION FOR CHANGE OF CLASSIFICATION, OR
ANY OTHER PROCEEDING BEFORE THE BOARD. 

(8) TO EXHIBIT ANY FILM CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS"
WITHOUT HAVING IN FORCE THE LICENSE HEREINAFTER PROVIDED. 

(B) IT SHALL BE UNLAWFUL FOR ANY YOUNG PERSON: 

(1) TO GIVE HIS AGE FALSELY AS SIXTEEN (16) YEARS OF AGE OR OVER,
FOR THE PURPOSE OF GAINING ADMITTANCE TO AN EXHIBITION OF A FILM
CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS." 

(2) TO ENTER OR REMAIN IN THE VIEWING ROOM OF ANY THEATER WHERE A
FILM CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS" IS BEING EXHIBITED. 

(3) TO STATE FALSELY THAT HE OR SHE IS MARRIED FOR THE PURPOSE OF
GAINING ADMITTANCE TO AN EXHIBITION OF A FILM CLASSIFIED AS "NOT
SUITABLE FOR YOUNG PERSONS." 

(C) IT SHALL BE UNLAWFUL FOR ANY PERSON: 

(1) TO SELL OR GIVE ANY YOUNG PERSON A TICKET TO AN EXHIBITION OF A
FILM CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS." 

(2) TO MAKE ANY FALSE OR WILLFULLY MISLEADING STATEMENT IN AN
APPLICATION FOR CHANGE OF CLASSIFICATION OR IN ANY PROCEEDING BEFORE
THE BOARD. 

(3) TO MAKE ANY FALSE STATEMENTS FOR THE PURPOSE OF ENABLING ANY
YOUNG PERSON TO GAIN ADMITTANCE TO THE EXHIBITION OF A FILM CLASSIFIED
AS "NOT SUITABLE FOR YOUNG PERSONS." 

(D) TO THE EXTENT THAT ANY PROSECUTION OR OTHER PROCEEDING UNDER
THIS ORDINANCE, INVOLVES THE ENTERING, PURCHASING OF A TICKET, OR
VIEWING BY A YOUNG PERSON OF A FILM CLASSIFIED "NOT SUITABLE FOR YOUNG
PERSONS," IT SHALL BE A VALID DEFENSE THAT SUCH YOUNG PERSON WAS
ACCOMPANIED BY HIS PARENT OR LEGALLY APPOINTED GUARDIAN, HUSBAND OR
WIFE, THROUGHOUT THE VIEWING OF SUCH FILM. 


EVERY EXHIBITOR HOLDING A MOTION PICTURE THEATRE OR MOTION PICTURE
SHOW LICENSE ISSUED PURSUANT TO CHAPTER 46 OF THE 1960 REVISED CODE OF
CIVIL AND CRIMINAL ORDINANCES OF THE CITY OF DALLAS SHALL BE ENTITLED
TO ISSUANCE OF A LICENSE BY THE CITY SECRETARY TO EXHIBIT FILMS
CLASSIFIED "NOT SUITABLE FOR YOUNG PERSONS." 


WHENEVER THE CITY ATTORNEY OR ANY PERSON ACTING UNDER HIS DIRECTION,
OR ANY TEN (10) CITIZENS OF THE CITY OF DALLAS, SHALL FILE A SWORN
COMPLAINT WITH THE CITY SECRETARY THAT ANY EXHIBITOR HAS REPEATEDLY
VIOLATED THE PROVISIONS OF THIS ORDINANCE, OR THAT ANY EXHIBITOR HAS
PERSISTENTLY FAILED TO USE REASONABLE DILIGENCE TO DETERMINE WHETHER
THOSE SEEKING ADMITTANCE TO THE EXHIBITION OF A FILM CLASSIFIED "NOT
SUITABLE FOR YOUNG PERSONS" ARE BELOW THE AGE OF SIXTEEN (16), THE CITY
SECRETARY SHALL IMMEDIATELY BRING SUCH COMPLAINT TO THE ATTENTION OF
THE CITY COUNCIL WHO SHALL SET A TIME AND PLACE FOR HEARING SUCH
COMPLAINT AND CAUSE NOTICE OF SUCH HEARING TO BE GIVEN TO THE
COMPLAINANTS AND TO THE EXHIBITOR INVOLVED.  THE CITY COUNCIL SHALL
HAVE AUTHORITY TO ISSUE SUBPOENAS REQUIRING WITNESSES TO APPEAR AND
TESTIFY AT SUCH HEARING, AND ANY PARTY TO SUCH HEARING SHALL BE
ENTITLED TO SUCH PROCESS.  IF, AFTER HEARING THE EVIDENCE, THE CITY
COUNCIL SHALL FIND THE CHARGES IN SUCH COMPLAINT TO BE TRUE, IT SHALL
ISSUE AND FILE AN ORDER REVOKING OR SUSPENDING THE LICENSE ABOVE
PROVIDED, INSOFAR AS IT GRANTS THE PRIVILEGE OF SHOWING SUCH CLASSIFIED
PICTURES, FOR A SPECIFIC PERIOD NOT TO EXCEED ONE (1) YEAR, OR MAY
ISSUE A REPRIMAND IF IT IS SATISFIED THAT SUCH VIOLATION WILL NOT
CONTINUE. 

THE CITY COUNCIL LIKEWISE, AFTER NOTICE AND HEARING, MAY REVOKE OR
SUSPEND THE LICENSE OF ANY EXHIBITOR WHO HAS REFUSED TO UNREASONABLY
FAILED TO PRODUCE OR DELAYED THE SUBMISSION OF A FILM FOR REVIEW, WHEN
REQUESTED BY THE BOARD.     SECTION 46A-7.  JUDICIAL REVIEW: 

(A) WITHIN TWO (2) DAYS AFTER THE FILING OF ANY CLASSIFICATION BY
THE BOARD, OTHER THAN AN ORDER APPROVING THE CLASSIFICATION PROPOSED BY
AN EXHIBITOR, ANY EXHIBITOR MAY FILE A NOTICE OF NON-ACCEPTANCE OF THE
BOARD'S CLASSIFICATION, STATING HIS INTENTION TO EXHIBIT THE FILM IN
QUESTION UNDER A DIFFERENT CLASSIFICATION.  THEREUPON IT SHALL BE THE
DUTY OF THE BOARD TO DO THE FOLLOWING: 

(1) WITHIN THREE (3) DAYS THEREAFTER TO MAKE APPLICATION TO A
DISTRICT COURT OF DALLAS COUNTY, TEXAS, FOR A TEMPORARY AND PERMANENT
INJUNCTION TO ENJOIN SUCH DEFENDANT-EXHIBITOR, BEING THE EXHIBITOR WHO
CONTESTS THE CLASSIFICATION, FROM EXHIBITING THE FILM IN QUESTION
CONTRARY TO THE PROVISIONS OF THIS ORDINANCE. 

(2) TO HAVE SAID APPLICATION FOR TEMPORARY INJUNCTION SET FOR
HEARING WITHIN FIVE (5) DAYS AFTER THE FILING THEREOF.  IN THE EVENT
THE DEFENDANT-EXHIBITOR APPEARS AT OR BEFORE THE TIME OF THE HEARING OF
SUCH TEMPORARY INJUNCTION, WAIVES THE NOTICE OTHERWISE PROVIDED BY THE
TEXAS RULES OF CIVIL PROCEDURE, AND REQUESTS THAT AT THE TIME SET FOR
SUCH HEARING THE COURT PROCEED TO HEAR THE CASE UNDER THE TEXAS RULES
OF CIVIL PROCEDURE FOR PERMANENT INJUNCTION ON ITS MERITS, THE BOARD
SHALL BE REQUIRED TO WAIVE ITS APPLICATION FOR TEMPORARY INJUNCTION AND
SHALL JOIN IN SUCH REQUEST.  IN THE EVENT THE DEFENDANT-EXHIBITOR DOES
NOT WAIVE NOTICE AND/OR DOES NOT REQUEST AN YEARLY HEARING ON THE
BOARD'S APPLICATION FOR PERMANENT INJUNCTION, IT SHALL NEVERTHELESS BE
THE DUTY OF THE BOARD TO OBTAIN THE EARLIEST POSSIBLE SETTING FOR SUCH
HEARING UNDER THE PROVISIONS OF STATE LAW AND THE TEXAS RULES OF CIVIL
PROCEDURE. 

(3) IF THE INJUNCTION IS GRANTED BY THE TRIAL COURT AND THE
DEFENDANT-EXHIBITOR APPEALS TO THE COURT OF CIVIL APPEALS, THE BOARD
SHALL WAIVE ANY AND ALL STATUTORY NOTICES AND TIMES AS PROVIDED FOR IN
THE TEXAS STATE STATUTES AND TEXAS RULES OF CIVIL PROCEDURE, AND SHALL
WITHIN FIVE (5) DAYS AFTER RECEIVING A COPY OF APPEALING EXHIBITOR'S
BRIEF, FILE ITS REPLY BRIEF, IF REQUIRED, AND BE PREPARED TO SUBMIT THE
CASE UPON ORAL SUBMISSION OR TAKE ANY OTHER REASONABLE ACTION REQUESTED
BY THE APPEALING EXHIBITOR, JOINTLY WITH SUCH EXHIBITOR, REQUEST THE
COURT OF CIVIL APPEALS TO ADVANCE THE CAUSE UPON THE DOCKET AND TO GIVE
IT A PREFERENTIAL SETTING THE SAME AS IS AFFORDED AN APPEAL FROM A
TEMPORARY INJUNCTION OR OTHER PREFERENTIAL MATTERS. 

(4) IF THE COURT OF CIVIL APPEALS SHOULD BY ITS JUDGMENT OF THE
TRIAL COURT GRANTING THE INJUNCTION AND THE APPEALING EXHIBITOR SHOULD
FILE AN APPLICATION FOR WRIT OF ERROR TO THE TEXAS SUPREME COURT, THE
BOARD SHALL BE REQUIRED TO WAIVE ANY AND ALL NOTICES AND TIMES AS
PROVIDED FOR IN THE TEXAS STATE STATUTES AND THE TEXAS RULES OF CIVIL
PROCEDURE, AND SHALL WITHIN FIVE (5) DAYS AFTER RECEIVING A COPY OF THE
APPLICATION FOR WRIT OF ERROR, FILE ITS REPLY BRIEF, IF REQUIRED, AND
BE PREPARED TO SUBMIT THE CASE UPON ORAL SUBMISSION OR TAKE ANY OTHER
REASONABLE ACTION REQUESTED BY THE APPEALING EXHIBITOR TO EXPEDITE THE
SUBMISSION OF THE CASE TO THE SUPREME COURT AND SHALL UPON REQUEST OF
THE APPEALING EXHIBITOR, JOINTLY WITH SUCH EXHIBITOR, REQUEST THE
SUPREME COURT TO ADVANCE THE CAUSE UPON THE DOCKET AND TO GIVE IT A
PREFERENTIAL SETTING THE SAME AS IS AFFORDED AN APPEAL FROM A TEMPORARY
INJUNCTION OR OTHER PREFERENTIAL MATTERS. 

(5 ) IF THE DISTRICT COURT DENIES THE BOARD'S APPLICATION FOR
INJUNCTION, AND THE BOARD ELECTS TO APPEAL, THE BOARD SHALL BE REQUIRED
TO WAIVE ALL PERIODS OF TIME ALLOWED IT BY THE TEXAS RULES OF CIVIL
PROCEDURE AND IF A MOTION FOR A NEW TRIAL IS REQUIRED, SHALL FILE SAID
MOTION WITHIN TWO (2) DAYS AFTER THE SIGNING OF THE JUDGMENT, (OR ON
THE FOLLOWING MONDAY IF SAID PERIOD ENDS ON A SATURDAY OR SUNDAY, OR ON
THE DAY FOLLOWING IF THE PERIOD ENDS ON A LEGAL HOLIDAY), SHALL NOT
AMEND SAID MOTION AND SHALL OBTAIN A HEARING ON SUCH MOTION WITHIN FIVE
(5) DAYS TIME.  IF NO MOTION FOR NEW TRIAL IS REQUIRED AS A
PREREQUISITE TO AN APPEAL UNDER THE TEXAS RULES OF CIVIL PROCEDURE, THE
BOARD SHALL NOT FILE SUCH A MOTION.  WITHIN TEN (10) DAYS AFTER THE
JUDGMENT IS SIGNED BY THE DISTRICT COURT DENYING SUCH INJUNCTION OR
WITHIN TEN (10) DAYS AFTER THE ORDER OVERRULING THE BOARD'S MOTION FOR
NEW TRIAL IS SIGNED, IF SUCH MOTION IS REQUIRED, THE BOARD SHALL
COMPLETE ALL STEPS NECESSARY FOR THE PERFECTION OF ITS APPEAL TO THE
COURT OF CIVIL APPEALS, INCLUDING THE FILING OF THE TRANSCRIPT,
STATEMENT OF FACTS AND APPELLANT'S BRIEF.  FAILURE TO DO SO SHALL
CONSTITUTE AN ABANDONMENT OF THE APPEAL.  ON FILING THE RECORD WITH THE
COURT OF CIVIL APPEALS, THE BOARD SHALL FILE A MOTION TO ADVANCE
REQUESTING THE COURT TO GIVE A PREFERENTIAL SETTING THE SAME AS IS
AFFORDED AN APPEAL FROM A TEMPORARY INJUNCTION OR OTHER PREFERENTIAL
MATTERS. 

(6) IF THE COURT OF CIVIL APPEALS REVERSES THE TRIAL COURT AFTER THE
TRIAL COURT HAS GRANTED AN INJUNCTION, OR IF THE COURT OF CIVIL APPEALS
REFUSES TO REVERSE THE TRIAL COURT AFTER THAT COURT HAS FAILED TO GRANT
AN INJUNCTION, THEN IF THE BOARD DESIRES TO APPEAL FROM THE DECISION OF
THE COURT OF CIVIL APPEALS BY WRIT OF ERROR TO THE SUPREME COURT OF THE
STATE OF TEXAS, IT MUST FILE ITS MOTION FOR REHEARING WITHIN TWO (2)
DAYS OF RENDITION OF THE COURT OF CIVIL APPEALS (OR ON THE FOLLOWING
MONDAY, IF SAID PERIOD ENDS ON A SATURDAY OR SUNDAY, OR ON THE DAY
FOLLOWING IF THE PERIOD ENDS ON A LEGAL HOLIDAY), AND SHALL FILE ITS
APPLICATION FOR WRIT OF ERROR WITHIN TEN (10) DAYS AFTER THE COURT OF
CIVIL APPEALS' ORDER OVERRULING SUCH MOTION FOR REHEARING, AND FAILURE
TO DO SO SHALL WAIVE ALL RIGHTS TO APPEAL FROM THE DECISION OF THE
COURT OF CIVIL APPEALS.  AT THE TIME OF FILING THE APPLICATION FOR WRIT
OF ERROR, THE BOARD SHALL ALSO REQUEST THE SUPREME COURT TO GIVE THE
CASE A PREFERENTIAL SETTING AND ADVANCE THE SAME ON THE DOCKET. 

(B) THE FILING OF SUCH NOTICE OF NON-ACCEPTANCE SHALL NOT SUSPEND OR
SET ASIDE THE BOARD'S ORDER, BUT SUCH ORDER SHALL BE SUSPENDED AT THE
END OF TEN (10) DAYS AFTER THE FILING OF SUCH NOTICE UNLESS AN
INJUNCTION IS ISSUED WITHIN SUCH PERIOD. 

(C) FAILURE OF ANY EXHIBITOR TO FILE THE NOTICE OF NON-ACCEPTANCE
WITHIN TWO (2) DAYS AS REQUIRED IN SUBDIVISION (1) OF THIS SECTION 46A
7, SHALL CONSTITUTE ACCEPTANCE OF SUCH CLASSIFICATION ORDER AND SUCH
EXHIBITOR SHALL BE BOUND BY SUCH ORDER IN ALL SUBSEQUENT PROCEEDINGS
EXCEPT SUCH PROCEEDINGS AS MAY BE IN CONNECTION WITH ANY APPLICATION
FOR CHANGE OF CLASSIFICATION MAY BE HAD IN CONNECTION WITH ANY
APPLICATION FOR CHANGE OF CLASS UNDER SUBSECTION (C) OF SECTION 46A-3
ABOVE. 


THE FOLLOWING ACTS ARE DECLARED TO BE PUBLIC NUISANCES: 

(A) ANY VIOLATION OF SUBDIVISIONS (1), (2), (3), OR (6), OF
SUBDIVISION (A) OF SECTION 46A-4 OF THIS ORDINANCE. 

(B) ANY EXHIBITION OF A FILM CLASSIFED AS "NOT SUITABLE FOR YOUNG
PERSONS" AT WHICH MORE THAN THREE (3) YOUNG PERSONS ARE ADMITTED. 

(C) ANY EXHIBITION OF A FILM CLASSIFIED AS "NOT SUITABLE FOR YOUNG
PERSONS" BY AN EXHIBITOR WHO FAILS TO USE REASONABLE DILIGENCE TO
DETERMINE WHETHER PERSONS ADMITTED TO SUCH EXHIBITIONS ARE PERSONS
UNDER THE AGE OF SIXTEEN (16) YEARS. 

(D) ANY EXHIBITION OF A FILM CLASSIFIED AS "NOT SUITABLE FOR YOUNG
PERSONS" BY AN EXHIBITOR WHO HAS BEEN CONVICTED OF AS MANY AS THREE (3)
VIOLATIONS OF SUBDIVISIONS (4) OR (5) OF SUBDIVISION (A) OF SECTION 46A
4 OF THIS ORDINANCE IN CONNECTION WITH THE EXHIBITION OF THE SAME
FILM. 


WHENEVER THE BOARD HAS PROBABLE CAUSE TO BELIEVE THAT ANY EXHIBITOR
HAS COMMITTED ANY OF THE ACTS DECLARED IN SECTION 46A-8 ABOVE TO BE A
PUBLIC NUISANCE, THE BOARD SHALL HAVE THE DUTY TO MAKE APPLICATION TO A
COURT OF COMPETENT JURISDICTION FOR AN INJUNCTION RESTRAINING THE
COMMISSION OF SUCH ACTS. 


NOTHING IN THIS ORDINANCE SHALL BE CONSTRUED TO REGULATE PUBLIC
EXHIBITIONS PRE-EMPTED BY ARTICLE 527 OF THE PENAL CODE OF THE STATE OF
TEXAS, AS AMENDED. 


SHOULD ANY SECTION, SUBSECTION, SENTENCE, PROVISION, CLAUSE OR
PHRASE BE HELD TO BE INVALID FOR ANY REASON, SUCH HOLDING SHALL NOT
RENDER INVALID ANY OTHER SECTION, SUBSECTION, SENTENCE, PROVISION,
CLAUSE OR PHRASE OF THIS ORDINANCE, AND THE SAME ARE DEEMED SEVERABLE
FOR THIS PURPOSE. 

ORDINANCE SHALL BE GUILTY OF A MISDEMEANOR AND UPON CONVICITON THEREOF
SHALL BE SUBJECT TO A FINE NOT TO EXCEED TWO HUNDRED DOLLARS ($200.00)
AND EACH OFFENSE SHALL BE DEEMED TO BE A SEPARATE VIOLATION AND
PUNISHABLE AS A SEPARATE OFFENSE, AND EACH DAY THAT A FILM IS EXHIBITED
WHICH HAS NOT BEEN CLASSIFIED ACCORDING TO THIS ORDINANCE SHALL BE A
SEPARATE OFFENSE. 

COUNCIL OF THE CITY OF DALLAS ON APRIL 6, 1965, BE AND THE SAME IS
HEREBY IN ALL THINGS REPEALED AND HELD FOR NAUGHT, AND THIS ORDINANCE
IS ENACTED IN LIEU THEREOF. 

THE CITY COUNCIL OF THE CITY OF DALLAS HAS BEEN DECLARED TO BE
UNENFORCEABLE IN THE COURT BY THE FEDERAL DISTRICT COURT, CREATES AN
URGENCY AND AN EMERGENCY IN THE PRESERVATION OF THE PUBLIC PEACE,
COMFORT AND GENERAL WELFARE AND REQUIRES THAT THIS ORDINANCE SHALL TAKE
EFFECT IMMEDIATELY FROM AND AFTER ITS PASSAGE, AND IT IS ACCORDINGLY SO
ORDAINED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 

AS I INDICATED IN MY DISSENTING OPINION IN GINSBERG V. NEW YORK,
ANTE, P. 650, IF WE ASSUME ARGUENDO THAT THE CENSORSHIP OF OBSCENE
PUBLICATIONS, WHETHER FOR CHILDREN OR FOR ADULTS, IS IN THE AREA OF
SUBSTANTIVE DUE PROCESS, THE STATES HAVE A VERY WIDE RANGE INDEED FOR
DETERMINING WHAT KIND OF MOVIE, NOVEL, POEM, OR ARTICLE IS HARMFUL.  IF
THAT WERE THE TEST, I WOULD AGREE WITH MY BROTHER HARLAN THAT THE
STANDARD OF "SEXUAL PROMISCUITY" IN THIS DALLAS ORDINANCE IS
SUFFICIENTLY PRECISE AND DISCRIMINATING FOR MODERN MAN TO APPLY
INTELLIGENTLY. 

MY APPROACH TO THESE PROBLEMS IS, OF COURSE, QUITE DIFFERENT.  I
REACH THE RESULT THE COURT REACHES FOR THE REASONS STATED IN MY
DISSENTING OPINIONS IN GINSBERG AND OTHER CASES AND THEREFORE CONCUR IN
REVERSING THE PRESENT JUDGMENT. 

MR. JUSTICE HARLAN, CONCURRING IN NO. 47, ANTE, P. 629, AND
DISSENTING IN NOS. 56 AND 64. 

THESE CASES USHER THE COURT INTO A NEW PHASE OF THE INTRACTABLE
OBSCENITY PROBLEM:  MAY A STATE PREVENT THE DISSEMINATION OF OBSCENE OR
OTHER OBNOXIOUS MATERIAL TO JUVENILES UPON STANDARDS LESS STRINGENT
THAN THOSE WHICH WOULD GOVERN ITS DISTRIBUTION TO ADULTS? 

IN NO. 47, THE GINSBERG CASE, THE COURT UPHOLDS A NEW YORK STATUTE
APPLICABLE ONLY TO JUVENILES WHICH, AS CONSTRUED BY THE STATE COURTS,
IN EFFECT EMBODIES IN DILUTED FORM THE "ADULT" OBSCENITY STANDARDS
ESTABLISHED BY ROTH V. UNITED STATES, 354 U.S. 476, AND THE PREVAILING
OPINION IN MEMOIRS V. MASSACHUSETTS, 383 U.S. 413.  IN NOS. 56 AND 64,
THE INTERSTATE CIRCUIT AND UNITED ARTISTS CASES, THE COURT STRIKES DOWN
ON THE GROUND OF VAGUENESS A SIMILAR DALLAS ORDINANCE, NOT COUCHED,
HOWEVER, ENTIRELY IN OBSCENITY TERMS.  IN NONE OF THESE CASES DOES THE
COURT PASS JUDGMENT ON THE PARTICULAR MATERIAL CONDEMNED BY THE STATE
COURTS. 

AS THE COURT ENTERES THIS NEW AREA OF OBSCENITY LAW IT IS WELL TO
TAKE STOCK OF WHERE WE ARE AT PRESENT IN THIS CONSTITUTIONAL FIELD. 
THE SUBJECT OF OBSCENITY HAS PRODUCED A VARIETY OF VIEWS AMONG THE
MEMBERS OF THE COURT UNMATCHED IN ANY OTHER COURSE OF CONSTITUTIONAL
ADJUDICATION.  /1/  TWO MEMBERS OF THE COURT STEADFASTLY MAINTAIN THAT
THE FIRST AND FOURTEENTH AMENDMENTS RENDER SOCIETY POWERLESS TO PROTECT
ITSELF AGAINST THE DISSEMINATION OF EVEN THE FILTHIEST MATERIALS.  /2/
NO OTHER MEMBER OF THE COURT, PAST OR PRESENT, HAS EVER STATED HIS
ACCEPTANCE OF THAT POINT OF VIEW.  BUT THERE IS AMONG PRESENT MEMBERS
OF THE COURT A SHARP DIVERGENCE AS TO THE PROPER APPLICATION OF THE
STANDARDS IN ROTH, SUPRA, /3/  MEMOIRS, SUPRA, /4/  AND GINZBURG V.
UNITED STATES, 383 U.S. 463, /5/  FOR JUDGING WHETHER GIVEN MATERIAL IS
CONSTITUTIONALLY PROTECTED OR UNPROTECTED.  MOST OF THE PRESENT
JUSTICES WHO BELIEVE THE "OBSCENITY" IS NOT BEYOND THE PALE OF
GOVERNMENTAL CONTROL SEEMINGLY CONSIDER THAT THE ROTH-MEMOIRS-GINZBURG
TESTS PERMIT SUPPRESSION OF MATERIAL THAT FALLS SHORT OF SO-CALLED
"HARD CORE PORNOGRAPHY," ON EQUAL TERMS AS BETWEEN FEDERAL AND STATE
AUTHORITY.  /6/  ANOTHER VIEW IS THAT ONLY "HARD CORE PORNOGRAPHY" MAY
BE SUPPRESSED, WHETHER BY FEDERAL OR STATE AUTHORITY.  /7/  AND STILL
ANOTHER VIEW, THAT OF THIS WRITER, IS THAT ONLY "HARD CORE PORNOGRAPHY"
MAY BE SUPPRESSED BY THE FEDERAL GOVERNMENT, WHEREAS UNDER THE
FOURTEENTH AMENDMENT STATES ARE PERMITTED WIDER AUTHORITY TO DEAL WITH
OBNOXIOUS MATTER THAN MIGHT BE JUSTIFIABLE UNDER A STRICT APPLICATION
OF THE ROTH-MEMOIRS-GINZBURG RULES.  /8/ 

THERE ARE ALSO DIFFERENCES AMONG US AS TO HOW OUR APPELLATE PROCESS
SHOULD WORK IN REVIEWING OBSCENITY DETERMINATIONS.  ONE VIEW IS THAT WE
SHOULD SIMPLY EXAMINE THE PROCEEDINGS BELOW TO ASCERTAIN WHETHER THE
LOWER FEDERAL OR STATE COURTS HAVE MADE A GENUINE EFFORT TO APPLY THE
ROTH-MEMOIRS-GINZBURG TESTS, AND THAT IF SUCH IS THE CASE, THEIR
DETERMINATIONS THAT THE QUESTIONED MATERIAL IS OBSCENE SHOULD BE
ACCEPTED, MUCH AS WOULD ANY FINDINGS OF FACT.  /9/  ANOTHER VIEW IS
THAT THE QUESTION OF WHETHER PARTICULAR MATERIAL IS OBSCENE INHERENTLY
ENTAILS A CONSTITUTIONAL JUDGMENT FOR WHICH THE COURT HAS ULTIMATE
RESPONSIBILITY, AND HENCE THAT IT IS INCUMBENT UPON US TO JUDGE FOR
OURSELVES, DE NOVO AS IT WERE, THE OBSCENITY VEL NON OF THE CHALLENGED
MATTER.  /10/     THE UPSHOT OF ALL THIS DIVERGENCY IN VIEWPOINT IS
THAT ANYONE WHO UNDERTAKES TO EXAMINE THE COURT'S DECISIONS SINCE ROTH
WHICH HAVE HELD PARTICULAR MATERIAL OBSCENE OR NOT OBSCENE WOULD FIND
HIMSELF IN UTTER BEWILDERMENT.  /11/  FROM THE STANDPOINT OF THE COURT
ITSELF THE CURRENT APPROACH HAS REQUIRED US TO SPEND AN INORDINATE
AMOUNT OF TIME IN THE ABSURD BUSINESS OF PERUSING THE VIEWING THE
MISERABLE STUFF THAT POURS INTO THE COURT, MOSTLY IN STATE CASES, ALL
TO NO BETTER END THAN SECOND-GUESSING STATE JUDGES.  IN ALL EXCEPT RARE
INSTANCES, I VENTURE TO SAY, NO SUBSTANTIAL FREE-SPEECH INTEREST IS AT
STAKE, GIVEN THE RIGHT OF THE STATES TO CONTROL OBSCENITY. 

I BELIEVE THAT NO IMPROVEMENT IN THIS CHAOTIC STATE OF AFFAIRS IS
LIKELY TO COME UNTIL IT IS RECOGNIZED THAT THIS WHOLE PROBLEM IS
PRIMARILY ONE OF STATE CONCERN, AND THAT THE CONSTITUTION TOLERATES
MUCH WIDER AUTHORITY AND DISCRETION IN THE STATES TO CONTROL THE
DISSEMINATION OF OBSCENE MATERIALS THAN IT DOES IN THE FEDERAL
GOVERNMENT.  REITERATING THE VIEWPOINT THAT I HAVE EXPRESSED IN EARLIER
OPINIONS, I WOULD LIMIT FEDERAL CONTROL OF OBSCENE MATERIALS TO THOSE
WHICH ALL WOULD RECOGNIZE AS WHAT HAS BEEN CALLED "HARD CORE
PORNOGRAPHY," AND WOULD WITHHOLD THE FEDERAL JUDICIAL HAND FROM
INTERFERING WITH STATE DETERMINATIONS EXCEPT IN INSTANCES WHERE THE
STATE ACTION CLEARLY APPEARS TO BE BUT THE PRODUCT OF PRUDISH
OVERZEALOUSNESS.  SEE ROTH V. UNITED STATES, SUPRA, AT 496; MANUAL
ENTERPRISES V. DAY, 370 U.S. 478; JACOBELLIS V. OHIO, 378 U.S. 184,
203; MEMOIRS V. MASSACHUSETTS, SUPRA, AT 455.  AND IN THE JUVENILE
FIELD I THINK THAT THE CONSTITUTION IS STILL MORE TOLERANT OF STATE
POLICY AND ITS APPLICATIONS.  IF CURRENT DOCTRINAIRE VIEWS AS TO THE
REACH OF THE FIRST AMENDMENT INTO STATE AFFAIRS ARE THOUGHT TO STAND IN
THE WAY OF SUCH A FUNCTIONAL APPROACH, I WOULD REVERT TO BASIC
CONSTITUTIONAL CONCEPTS THAT UNTIL RECENT TIMES HAVE BEEN RECOGNIZED
AND RESPECTED AS THE FUNDAMENTAL GENIUS OF OUR FEDERAL SYSTEM, NAMELY
THE ACCEPTANCE OF WIDE STATE AUTONOMY IN LOCAL AFFAIRS. 

I COME NOW TO THE CASES AT HAND.  IN NO. 47, GINSBERG, I CONCUR IN
THE JUDGMENT AND JOIN THE OPINION OF THE COURT, FULLY PRESERVING,
HOWEVER, THE VIEWS REPEATEDLY EXPRESSED IN MY EARLIER OPINIONS IN THIS
FIELD. 

IN NOS. 56 AND 64, THE INTERSTATE CIRCUIT AND UNITED ARTISTS CASES,
I RESPECTFULLY DISSENT.  I DO NOT AGREE THAT THE DALLAS ORDINANCE CAN
BE STRUCK DOWN, AS THE COURT NOW HOLDS, ON THE SCORE OF VAGUENESS.  THE
AMBIGUITIES ABOUT WHICH THE COURT EXPRESSES CONCERN ARE ESSENTIALLY
TWO.  /12/  FIRST, THE ORDINANCE DOES NOT INCLUDE A DEFINITION OF
"SEXUAL PROMISCUITY."  /13/  SECOND, THE ORDINANCE PROVIDES THAT A FILM
"SHALL BE CONSIDERED 'LIKELY TO INCITE OR ENCOURAGE' CRIME DELINQUENCY
OR SEXUAL PROMISCUITY . . . IF, IN THE JUDGMENT OF THE BOARD, THERE IS
A SUBSTANTIAL PROBABILITY THAT IT WILL CREATE THE IMPRESSION ON YOUNG
PERSONS THAT SUCH CONDUCT IF PROFITABLE, DESIRABLE, ACCEPTABLE,
RESPECTABLE, PRAISEWORTHY OR COMMONLY ACCEPTED."  THE COURT IS
CONCERNED THAT MANY MAY DISAGREE AS TO WHETHER ANY SPECIFIC MATERIALS
CREATE SUCH IMPRESSIONS ON YOUNG PERSONS. 

THESE SEEM TO ME ENTIRELY INADEQUATE GROUNDS ON WHICH TO STRIKE DOWN
THE ORDINANCE.  IT MUST BE GRANTED, OF COURSE, THAT PEOPLE MAY DIFFER
AS TO THE APPLICATION OF THESE STANDARDS; BUT THE CENTRAL LESSON OF
THIS COURT'S EFFORTS IN THIS AREA IS THAT UNDER ALL VERBAL FORMULAE,
INCLUDING EVEN THIS COURT'S OWN DEFINITION OF OBSCENITY, REASONABLE MEN
CAN, AND ORDINARILY DO, DIFFER AS TO THE PROPER ASSESSMENT OF
CHALLENGED MATERIALS.  THE TRUTH IS THE THE COURT HAS DEMANDED GREATER
PRECISION OF LANGUAGE FROM THE CITY OF DALLAS THAN THE COURT CAN ITSELF
GIVE, OR EVEN THAN CAN SENSIBLY BE EXPECTED IN THIS AREA OF THE LAW. 

THE COURT HAS NOT ALWAYS ASKED SO MUCH.  /14/  IN ROTH, THE FEDERAL
STATUTE UNDER WHICH THE PETITIONER HAD BEEN SENTENCED TO GIVE YEARS'
IMPRISONMENT FORBADE THE MAILING OF MATERIAL THAT WAS "OBSCENE, LEWD,
LASCIVIOUS, OR FILTHY . . . OR OTHER PUBLICATION OF AN INDECENT
CHARACTER."  /15/  354 U.S.,AT 491.  IN ALBERTS V. CALIFORNIA, THE
COMPANION CASE TO ROTH, THE CALIFORNIA STATUTE PROVIDED THAT THE
MATERIALS MUST HAVE A "TENDENCY TO DEPRAVE OR CORRUPT ITS READERS." 
ID., AT 498.  NO DEFINITIONS WERE INCLUDED IN EITHER STATUTE, YET THE
COURT THERE EXPLICITLY REJECTED THE ARGUMENT THAT THEY DID NOT "PROVIDE
REASONABLY ASCERTAINABLY STANDARDS OF GUILT . . . ."  ID., AT 491.  THE
COURT RECOGNIZED THAT THE TERMS OF OBSCENITY STATUTES ARE NECESSARILY
IMPRECISE, BUT EMPHASIZED, QUOTING UNITED STATES V. PETRILLO, 332 U.S.
1, 7-8, THAT THE "'CONSTITUTION DOES NOT REQUIRE IMPOSSIBLE STANDARDS';
ALL THAT IS REQUIRED IS THAT THE LANGUAGE 'CONVEYS SUFFICIENTLY
DEFINITE WARNING AS TO THE PROSCRIBED CONDUCT WHEN MEASURED BY COMMON
UNDERSTANDING AND PRACTICES.  . . . '"  /16/  IBID.  YET IT SHOULD BE
REPEATED THAT THE INTERSTATE CIRCUIT CASES, UNLIKE ROTH AND ALBERTS,
INVOLVE MERELY THE CLASSIFICATION, NOT THE PROSCRIPTION BY CRIMINAL
PROSECUTION, OF OBJECTIONABLE MATERIALS.  IN MY OPINION, THE ORDINANCE
DOES NOT FAIL EITHER TO GIVE ADEQUATE NOTICE OF THE FILMS THAT ARE TO
BE RESTRICTED, OR TO PROVIDE SUFFICIENTLY DEFINITE STANDARDS FOR ITS
ADMINISTRATION.  /17/ 

ALTHOUGH THE COURT FINDS IT UNNECESSARY TO PASS JUDGMENT UPON THE
MATERIALS INVOLVED IN THESE CASES, I CONSIDER IT PREFERABLE TO FACE
THAT QUESTION.  UPON THE PREMISES SET FORTH IN MY ROTH AND MEMOIRS
OPINIONS, AND REITEREATED HERE, I WOULD HOLD THAT IN CONDEMNING THESE
MATERIALS NEW YORK AND THE CITY OF DALLAS HAVE ACTED WITHIN
CONSTITUTIONAL LIMITS. 

I WOULD AFFIRM THE JUDGMENTS IN ALL THREE CASES. 

/1/  IN THE FOLLOWING 13 OBSCENITY CASES FROM THE DATE ROTH WAS
DECIDED, IN WHICH SIGNED OPINIONS WERE WRITTEN FOR A DECISION OR
JUDGMENT OF THE COURT, THERE HAS BEEN A TOTAL OF 55 SEPARATE OPINIONS
AMONG THE JUSTICES.  KINGSLEY BOOKS, INC. V. BROWN, 354 U.S. 436 (FOUR
OPINIONS); ROTH V. UNITED STATES, SUPRA (FOUR OPINIONS); KINGSLEY INT'L
PICTURES CORP. V. REGENTS, 360 U.S. 684 (SIX OPINIONS); SMITH V.
CALIFORNIA, 361 U.S. 147 (FIVE OPINIONS); TIMES FILM CORP. V. CHICAGO,
365 U.S. 43 (THREE OPINIONS); MARCUS V. SEARCH WARRANT, 367 U.S. 717
(TWO OPINIONS); MANUAL ENTERPRISES V. DAY, 370 U.S. 478 (THREE
OPINIONS); BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58 (FOUR OPINIONS);
JACOBELLIS V. OHIO, 378 U.S. 184 (SIX OPINIONS); A QUANTITY OF BOOKS V.
KANSAS, 378 U.S. 205 (FOUR OPINIONS); MEMOIRS V. MASSACHUSETTS, SUPRA
(FIVE OPINIONS); GINZBURG V. UNITED STATES, 383 U.S. 463 (FIVE
OPINIONS); MISHKIN V. NEW YORK, 383 U.S. 502 (FOUR OPINIONS). 

/2/  SEE ROTH V. UNITED STATES, SUPRA, AT 508 (DISSENTING OPINION);
JACOBELLIS V. OHIO, SUPRA, AT 196 (SEPARATE OPINION); GINZBURG V.
UNITED STATES, SUPRA, AT 476, 482 (DISSENTING OPINIONS). 

/3/  ROTH STATED THE TEST TO BE "WHETHER TO THE AVERAGE PERSON,
APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME OF THE
MATERIAL TAKEN AS A WHOLE APPEALS TO PURIENT INTEREST."  354 U.S.,AT
489 (NOTE OMITTED). 

/4/  MEMOIRS ELABORATED THE ROTH TEST AS FOLLOWS:  "IT MUST BE
ESTABLISHED THAT (A) THE DOMINANT THEME OF THE MATERIAL TAKEN AS A
WHOLE APPEALS TO THE PRURIENT INTEREST IN SEX; (B) THE MATERIAL IS
PATENTLY OFFENSIVE BECAUSE IF AFFRONTS CONTEMPORARY COMMUNITY STANDARDS
RELATING TO THE DESCRIPTION OR REPRESENTATION OF SEXUAL MATTERS; AND
(C) THE MATERIAL IS UTTERLY WITHOUT REDEEMING SOCIAL VALUE."  383
U.S.,AT 418. 

/5/  THE GINZBURG "TEST" IS DIFFICULT TO STATE WITH ANY PRECISION. 
THE COURT HELD THAT "IN CLOSE CASES EVIDENCES OF PANDERING MAY BE
PROBATIVE WITH RESPECT TO THE NATURE OF THE MATERIAL IN QUESTION AND
THUS SATISFY THE ROTH TEST."  383 U.S.,AT 474.  BUT THIS "SIMPLY
ELABORATES THE TEST BY WHICH THE OBSCENITY VEL NON OF THE MATERIAL MUST
BE JUDGED."  ID., AT 475.  YET EVIDENCE OF PANDERING MAY "SUPPORT THE
DETERMINATION THAT THE MATERIAL IS OBSCENE EVEN THOUGH IN OTHER
CONTEXTS THE MATERIAL WOULD ESCAPE SUCH CONDEMNATION."  ID., AT 476. 
PANDERING ITSELF EVIDENTLY ENCOMPASSES EVERY FORM OF THE "'BUSINESS OF
PURVEYING TEXTUAL OR GRAPHIC MATTER OPENLY ADVERTISED TO APPEAL TO THE
EROTIC INTEREST OF THEIR CUSTOMERS.'"  ID., AT 467 (NOTE OMITTED). 

/6/  SEE, E.G., JACOBELLIS V. OHIO, SUPRA, AT 193-195 (OPINION OF
BRENNAN, J.). 

/7/  SEE ID., AT 197 (CONCURRING OPINION OF STEWART, J.). 

/8/  SEE ROTH V. UNITED STATES, SUPRA, AT 496 (CONCURRING AND
DISSENTING OPINION); MEMOIRS V. MASSACHUSETTS, SUPRA, AT 455
(DISSENTING OPINION). 

/9/  SEE JACOBELLIS V. OHIO, SUPRA, AT 202 (DISSENTING OPINION). 

/10/  SEE JACOBELLIS, AT 190 (OPINION OF BRENNAN, J.); ROTH V.
UNITED STATES, SUPRA, AT 497-498 (CONCURRING AND DISSENTING OPINION);
KINGSLEY INT'L PICTURES CORP. V. REGENTS, SUPRA, AT 708 (CONCURRING IN
RESULT). 

/11/  SEE, E.G., KENEY V. NEW YORK, 388 U.S. 440; FRIEDMAN V. NEW
YORK, 388 U.S. 441; RATNER V. CALIFORNIA, 388 U.S. 442; COBERT V. NEW
YORK, 388 U.S. 443; SHEPERD V. NEW YORK, 388 U.S. 444; AVANSINO V. NEW
YORK, 388 U.S. 446; ADAY V. UNITED STATES, 388 U.S. 447; CORINTH
PUBLICATIONS, INC. V. WESBERRY, 388 U.S. 449; ROSENBLOOM V. VIRGINIA,
388 U.S. 450; A QUANTITY OF COPIES OF BOOKS V. KANSAS, 388 U.S. 454;
MAZES V. OHIO, 388 U.S. 453; SCHACKMAN V. CALIFORNIA, 388 U.S. 454;
LANDAU V. FORDING, 388 U.S. 456; POTOMAC NEWS CO. V. UNITED STATES, 389
U.S. 47; CONNER V. CITY OF HAMMOND, 389 U.S. 48; CENTRAL MAGAZINE
SALES, LTD. V. UNITED STATES, 389 U.S. 50; CHANCE V. CALIFORNIA, 389
U.S. 89. 

/12/  THE COURT EMPHASIZES AT GREATER LENGTH THE FAILURE OF THE
BOARD AND THE TEXAS COURTS TO PROFFER ANY CLARIFICATION OF THE
ORDINANCE.  THIS COMPELS EXAMINATION OF THE ORDINANCE'S TERMS, BUT IT
DOES NOT, OF COURSE, OFFER ANY INDEPENDENT BASIS FOR A CONCLUSION THAT
THE ORDINANCE IS AMBIGUOUS. 

/13/  THE COURT ACKNOWLEDGES THAT THE CITY HAS SINCE ADOPTED A
DEFINITION OF SEXUAL PROMISCUITY, BUT IT EXPRESSES NO VIEWS AS TO THE
DEFINITION'S ADEQUACY. 

/14/  IT IS PERTINENT TO NOTE THAT A MAJORITY OF THE COURT DID NOT
HOLD THAT THE NEW YORK STATUTE AT ISSUE IN KINGSLEY INT'L PICTURES BADE
THE EXHIBITION OF A FILM "WHICH PORTRAYS ACTS OF SEXUAL IMMORALITY'  .
. . OR . . . PRESENTS SUCH ACTS AS DESIRABLE, ACCEPTABLE OR PROPER
PATTERNS OF BEHAVIOR."  ID., AT 685.  IT APPEARS THAT ONLY THE OPINION
OF MR. JUSTICE CLARK, CONCURRING IN THE RESULT, UPON WHICH THE COURT
NOW RELIES SO HEAVILY, DESCRIBED THIS STANDARD AS VAGUE.  INDEED, MR.
JUSTICE FRANKFURTER SAID IN HIS SEPARATE OPINION THAT THE "COURT DOES
NOT STRIKE THE LAW DOWN BECAUSE OF VAGUENESS . . . ."  ID., AT 695. 
SEE ALSO ID., AT 704.  MR. JUSTICE FRANKFURTER WENT ON TO SAY THAT
"'(SEXUAL IMMORALITY' IS NOT A NEW PHRASE IN THIS BRANCH OF LAW AND ITS
IMPLICATIONS DOMINATE THE CONTEXT.  I HARDLY CONCEIVE TI POSSIBLE THAT
THE COURT WOULD STRIKE DOWN AS UNCONSTITUTIONAL THE FEDERAL STATUTE
AGAINST MAILING LEWD, OBSCENE AND LASICIVOUS MATTER, WHICH HAS BEEN THE
LAW OF THE LAND FOR NEARLY A HUNDRED HEARS, SEE THE ACT OF MARCH 3,
1865, 13 STAT. 507, AND MARCH 3, 1873, 17 STAT. 599, WHATEVER SPECIFIC
INSTANCES MAY BE FOUND NOT WITHIN ITS ALLOWABLE PROHIBITION.  IN
SUSTAINING THIS LEGISLATION THIS COURT GAVE THE WORDS 'LEWD, OBSCENE,
AND LASCIVIOUS' CONCRETENESS BY SAYING THAT THE CONCERN 'SEXUAL
IMMORALITY.'"  ID., AT 695-696. 

/15/  THE STATUTE INVOLVED IN ROTH NOW PROVIDES IN PART THAT IS IS A
CRIMINAL OFFENSE TO IMPORT OR TRANSPORT IN INTERSTATE COMMERCE ANY
"OBSCENE, LEWD, LASCIVIOUS, OR FILTHY BOOK, PAMPHLET, PICTURE, MOTION
PICTURE FILM, PAPER, LETTER, WRITING, PRINT, OR OTHER MATTER OF
INDECENT CHARACTER . . . ."  18 U.S.C. 1462.  SIMILARLY, SEC. 1461
PROVIDES THAT IT IS A CRIMINAL OFFENSE TO MAIL ANY "OBSCENE, LEWD,
LASCIVIOUS, INDECENT, FILTHY OR VILE" ARTICLE.  SEE ALSO SEC. 1463,
1464, 1465.  ALTHOUGH EACH OF THESE SECTIONS MAKES PROFUSE USE OF THE
DISJUNCTIVE, NO DEFINITIONS OF ANY OF THESE DESCRIPTIVE TERMS ARE
PROVIDED. 

/16/  THE COURT WENT ON TO SAY THAT IT "IS ARGUED THAT BECAUSE
JURIES MAY REACH DIFFERENT CONCLUSIONS AS TO THE SAME AMTERIAL, THE
STATUTES MUST BE HELD TO BE INSUFFICIENTLY PRECISE TO SATISFY DUE
PROCESS REQUIREMENTS.  BUT, IT IS COMMON EXPERIENCE THAT DIFFERENT
JURIES MAY REACH DIFFERENT RESULTS UNDER ANY CRIMINAL STATUTE.  THIS IS
ONE OF THE CONSEQUENCES WE ACCEPT UNDER OUR JURY SYSTEM."  354 U.S.,AT
492, N. 30.  PRECISELY SIMILAR REASONING SHOULD BE APPLICABLE TO BOARDS
LIKE THAT CREATED BY THE DALLAS ORDINANCE, ALTHOUGH THE COST OF
DIFFERENCES IN RESULT IS HERE MEASURED (AT LEAST INITIALLY) BY FILM
CLASSIFICATIONS, AND NOT BY LENGTHY TERMS OF IMPRISONMENT. 

/17/  IT IS DIFFICULT TO SEE HOW THE COURT COULD SUPPOSE THAT ITS
MEMOIRS FORMULA OFFERS MORE PRECISE WARNINGS TO FILM MAKERS THAN DOES
THE DALLAS ORDINANCE.  SURELY THE COURT CANNOT NOW BELIEVE THAT
"REDEEMING SOCIAL VALUE," "PATENT OFFENSIVENESS," AND "PRURIENT
INTEREST" ARE, PARTICULARLY AS MODIFIFED SO AS TO APPLY TO CHILDREN,
TERMS OF COMMON UNDERSTANDING AND CLARITY.  MOREOVER, ONE WONDERS
WHETHER THE PANDERING RATIONALE ADOPTED IN GINZBURG V. UNITED STATES,
SUPRA, IS THOUGHT TO GIVE MORE "GUIDANCE TO THOSE WHO SEEK TO ADJUST
THEIR CONDUCT" THAN DOES THE DALLAS ORDINANCE.  IT IS DIFFICULT TO
IMAGINE ANY STANDARD MORE VAGUE, OR MORE OVERBROAD, THAN THE "NEW
SUBJECTIVITY" CREATED BY THE COURT'S SEARCH FOR THE "LEER OF THE
SENSUALIST."  SEE MAGRATH, THE OBSCENITY CASES:  GRAPES OF ROTH, 1966
SUP.CT.REV.  7, 61. 

GROVER HARTT, JR., ARGUED THE CAUSE FOR APPELLANT IN NO. 56.  WITH
HIM ON THE BRIEFS WAS EDWIN TOBOLOWSKY.  LOUIS NIZER ARGUED THE CAUSE
FOR APPELLANT IN NO. 64.  WITH HIM ON THE BRIEFS WERE PAUL CARRINGTON
AND DAN MCELROY. 

N. ALEX BICKLEY ARGUED THE CAUSE FOR APPELLEE IN BOTH CASES.  WITH
HIM ON THE BRIEFS WAS TED P. MACMASTER.     BRIEFS OF AMICI CURIAE,
URGING REVERSAL IN NO. 64, WERE FILED BY IRWIN KARP FOR THE AUTHORS
LEAGUE OF AMERICA, INC., AND BY OSMOND K. FRAENKEL, EDWARD J. ENNIS,
MELVIN L. WULF AND ALAN H. LEVINE FOR THE AMERICAN CIVIL LIBERTIES
UNION ET AL.
..END :






TIMES MIRROR CO. V. UNITED STATES, 390 U.S. 712 


       TIMES MIRROR CO. V. UNITED STATES. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL

         DISTRICT OF CALIFORNIA. 

        NO. 1162.  DECIDED APRIL 22, 1968. 


274 F.SUPP.  606, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN WOULD NOTE PROBABLE JURISDICTION AND SET THE CASE
FOR ORAL ARGUMENT. 

JULIAN O. VONKALINOWSKI, FOR APPELLANT. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL TURNER AND
BERNARD M. HOLLANDER FOR THE UNITED STATES. 
..END :





HASWELL V. POWELL, 390 U.S. 712 


       HASWELL V. POWELL, SECRETARY OF STATE OF ILLINOIS. 

        APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

     NO. 1055.  DECIDED APRIL 22, 1968. 


38 ILL.2D 161, 230 N.E.2D 178, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF SUBSTANTIAL FEDERAL QUESTION. 

JOHN C. TUCKER FOR APPELLANT. 

WILLIAM G. CLARK, ATTORNEY GENERAL OF ILLINOIS, AND JOHN J. O'TOOLE
AND ROBERT F. NIX, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEE. 
..END :










TILL V. NEW MEXICO, 390 U.S. 713 


       TILL V. NEW MEXICO. 

        APPEAL FROM THE SUPREME COURT OF NEW MEXICO. 

        NO. 1189, MISC.  DECIDED APRIL 22, 1968. 


78 N.M. 255, 430 P.2D 752, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

GLADYS TOWLES ROOT FOR APPELLANT. 
..END :












SCAFATI V. GREENFIELD, 390 U.S. 713 


       SCAFATI, CORRECTIONAL SUPERINTENDENT V. GREENFIELD. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF MASSACHUSETTS. 

NO. 1104.  DECIDED APRIL 22, 1968. 


277 F.SUPP.  644, AFFIRMED. 

PER CURIAM. 

THE MOTION OF APPELLEE FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED.  THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS
AFFIRMED. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE WOULD NOTE PROBABLE
JURISDICTION AND SET THE CASE FOR ORAL ARGUMENT. 

ELLIOT L. RICHARDSON, ATTORNEY GENERAL OF MASSACHUSETTS, WILLIE J.
DAVIS AND HOWARD M. MILLER, ASSISTANT ATTORNEYS GENERAL, AND RICHARD L.
LEVINE, DEPUTY ASSISTANT ATTORNEY GENERAL, FOR APPELLANT. 
..END :





ANDERSON V. TIEMANN, 390 U.S. 714 


       ANDERSON ET AL. V. TIEMANN ET AL.

        APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

        NO. 1218.  DECIDED APRIL 22, 1968. 


182 NEB. 393, 155 N.W.2D 322, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

RAY C. SIMMONS FOR APPELLANTS. 

CLARENCE A. H. MEYER, ATTORNEY GENERAL OF NEBRASKA, GERALD S.
VITAMVAS, DEPUTY ATTORNEY GENERAL, AND RICHARD H. WILLIAMS, SPECIAL
ASSISTANT ATTORNEY GENERAL, FOR APPELLEES. 
..END :










NATIONWIDE MUTUAL INSURANCE CO. V. VAAGE, 390 U.S. 714 


       NATIONWIDE MUTUAL INSURANCE CO. V. VAAGE ET AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF NEW YORK. 

        NO. 1177.  DECIDED APRIL 22, 1968. 


265 F.SUPP.  556, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 

CHARLES G. PILLON AND THOMAS A. ZIEBARTH FOR APPELLANT. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL, AND JOEL LEWITTES,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEES ROCKEFELLER ET AL.
..END :







CITY OF NEW YORK V. UNITED STATES, 390 U.S. 715 


       CITY OF NEW YORK ET AL. V. UNITED STATES ET AL.

       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           NORTHERN DISTRICT OF ILLINOIS. 

        NO. 1141.  DECIDED APRIL 22, 1968.  /1/ 


AFFIRMED. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED THE THE JUDGMENT IS AFFIRMED. 

/1/  TOGETHER WITH NO. 1146, SCHOOL DISTRICT OF PHILADELPHIA ET AL.
V. UNITED STATES ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

MR. JUSTICE BLACK WOULD NOTE PROBABLE JURISDICTION AND SET THE CASES
FOR ORAL ARGUMENT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

LEE A. FREEMAN, WILLIAM G. CLARK, ATTORNEY GENERAL OF ILLINOIS,
JOSEPH L. ALIOTO, JOHN J. DILLON, ATTORNEY GENERAL OF INDIANA, ELLIOT
L. RICHARDSON, ATTORNEY GENERAL OF MASSACHUSETTS, ROBERT L. MEADE,
ASSISTANT ATTORNEY GENERAL OF MASSACHUSETTS, WILLIAM B. SAXBE, ATTORNEY
GENERAL OF OHIO, DAVID G. BUDD, ASSISTANT ATTORNEY GENERAL OF OHIO,
CRAWFORD C. MARTIN, ATTORNEY GENERAL OF TEXAS, THOMAS W. MACK,
ASSISTANT ATTORNEY GENERAL OF TEXAS, C. DONALD ROBERTSON, ATTORNEY
GENERAL OF WEST VIRGINIA, BENJAMIN F. YANCEY, JR., DEPUTY ATTORNEY
GENERAL OF WEST VIRGINIA, BRONSON C. LAFOLLETTE, ATTORNEY GENERAL OF
WISCONSIN, GOERGE F. SIEKER AND THEODORE L. PRIEBE, ASSISTANT ATTORNEYS
GENERAL OF WISCONSIN, J. LEE RANKIN, RAYMOND R. SIMON, THOMAS M.
O'CONNOR AND ROBERT M. DESKY FOR APPELLANTS IN NO. 1141.  DAVID BERGER
AND HERBERT B. NEWBERG FOR APPELLANTS IN NO. 1146. 

SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY GENERAL TURNER FOR
THE UNITED STATES IN BOTH CASES.  HORACE S. MANGES, DONALD J.
WILLIAMSON, DON H. REUBEN, LAWRENCE GUNNELS, BERNARD G. SEGAL, EDWARD
W. MULLINIX, ALBERT E. JENNER, JR., PHILIP W. TONE, W. DONALD
MCSWEENEY, HARRY I. RAND, SAMUEL WEISBARD, HARRY BUCHMAN, ROBERT H.
DAVISON, GEROGE B. CHRISTENSEN, H. TEMPLETON BROWN, LEE N. ABRAMS,
JAMES F. DWYER, LEO ROSEN, ROGER BRYANT HUNTING AND ROBERT C. KECK FOR
APPELLEES HARPER & ROW, PUBLISHERS, INC., ET AL., IN BOTH CASES. 
..END :




SAFEGUARD MUTUAL INSURANCE CO. V. HOUSING AUTHORITY OF THE CITY OF
CAMDEN, 390 U.S. 716 



       SAFEGUARD MUTUAL INSURANCE CO. V. HOUSING AUTHORITY OF THE

           CITY OF CAMDEN ET AL.

        APPEAL FROM THE SUPERIOR COURT OF NEW JERSEY. 

        NO. 1208.  DECIDED APRIL 22, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MALCOLM W. BERKOWITZ AND SIDNEY W. BOOKBINDER FOR APPELLANT. 

BRYAN B. MCKERNAN FOR APPELLEE HOUSING AUTHORITY OF THE CITY OF
CAMDEN. 
..END :





HORLOCK V. OGLESBY, 390 U.S. 718 


       HORLOCK V. OGLESBY ET UX.

        APPEAL FROM THE SUPREME COURT OF INDIANA. 

        NO. 1217.  DECIDED APRIL 22, 1968. 


-- IND.-- , 231 N.E.2D 810, APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

JOHN D. CLOUSE FOR APPELLANT. 

THEODORE LOCKYEAR FOR APPELLEES. 
..END :











EDWARDS V. PACIFIC FRUIT EXPRESS CO., 390 U.S. 538 


       EDWARDS V. PACIFIC FRUIT EXPRESS CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

      NINTH CIRCUIT. 

        NO. 465.  ARGUED MARCH 14, 1968.-- DECIDED APRIL 8, 1968. 


PETITIONER, AN EMPLOYEE OF RESPONDENT COMPANY WHICH OWNS, MAINTAINS,
AND LEASES REFRIGERATOR CARS TO RAILROADS, WAS INJURED AND BROUGHT THIS
ACTION AGAINST RESPONDENT CHARGING IT WAS A "COMMON CARRIER BY
RAILROAD" AND LIABLE FOR DAMAGES UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT.  THE DISTRICT COURT GRANTED RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT AND THE COURT OF APPEALS AFFIRMED.  HELD:  IN LIGHT OF THE
LEGISLATIVE HISTORY, CONSISTENT JUDICIAL DECISIONS HOLDING REFRIGERATOR
CAR COMPANIES NOT COMMON CARRIERS BY RAILROAD, AND THE ADMINSTRATION OF
THE ACT FOR 60 YEARS, SUCH COMPANIES ARE NOT WITHIN THE COVERAGE OF THE
ACT.  PP. 539-543. 

378 F.2D 54, AFFIRMED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL EMPLOYERS' LIABILITY ACT PROVIDES THAT EVERY COMMON
CARRIER BY RAILROAD ENGAGED IN INTERSTATE COMMERCE SHALL BE LIABLE IN
DAMAGES FOR THE INJURY OR DEATH OF ITS EMPLOYEES RESULTING IN WHOLE OR
IN PART FROM THE NEGLIGENCE OF THE RAILROAD OR ITS AGENTS OR RESULTING
FROM DEFECTS IN ITS EQUIPMENT DUE TO ITS NEGLIGENCE.  /1/  THE QUESTION
IN THIS CASE IS WHETHER THE RESPONDENT PACIFIC FRUIT EXPRESS COMPANY IS
A "COMMON CARRIER BY RAILROAD." 

THE RESPONDENT IS THE LARGEST COMPANY OF ITS KIND IN THE UNITED
STATES.  IT OWNS, MAINTAINS, AND LEASES REFRIGERATOR CARS TO RAILROADS
TO TRANSPORT PERISHABLE PRODUCTS IN COMMERCE.  BECAUSE IT REPAIRS ITS
OWN CARS, IT ALSO OWNS BUILDINGS, PLANTS, SWITCHING TRACKS, AND
EQUIPMENT TO MAKE THESE REPAIRS.  WHILE THE RAILROADS TO WHICH ITS CARS
ARE LEASED TRANSPORT THEM AS DIRECTED, THE RESPONDENT EXPRESS COMPANY
RESERVES THE RIGHT TO HAVE THE CARS DIVERTED TO CARRY OUT ITS OWN
BUSINESS PLANS.  THE PETITIONER EDWARDS WORKS AS AN ICEMAN AT ONE OF
RESPONDENT'S REPAIR AND CONCENTRATION PLANTS.  HIS DUTIES ARE TO
TRANSPORT ICE AND HELP STORE IT IN CARS FOR CARRIAGE BY THE RAILROADS. 
WHILE DRIVING A COMPANY MOTOR VEHICLE IN THE PERFORMANCE OF HIS DUTY AS
AN EMPLOYEE FOR RESPONDENT, HE WAS THROWN VIOLENTLY TO THE GROUND,
COVERED WITH BURNING GASOLINE AND SEVERELY BURNED.  HE LATER BROUGHT
THIS ACTION AGAINST RESPONDENT, CHARGING IT WAS A "COMMON CARRIER BY
RAILROAD" AND LIABLE FOR DAMAGES UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT.  CONTENDING THAT IT WAS NOT A RAILROAD WITHIN THE MEANING OF THE
ACT, RESPONDENT COMPANY MOVED FOR A SUMMARY JUDGMENT WHICH THE DISTRICT
COURT GRANTED.  THE COURT OF APPEALS AFFIRMED, 378 F.2D 54, AND WE
GRANTED CERTIORARI.  389 U.S. 912.  WE AGREE WITH BOTH COURTS AND
AFFIRM. 

IN CONDUCTING ITS BUSINESS OF PROVIDING AND SERVICING INSULATED
RAILROAD CARS FOR THE CARRIAGE OF PERISHABLE COMMODITIES, IT IS
UNDOUBTEDLY TRUE THAT RESPONDENT PERFORMS SOME RAILROAD FUNCTIONS.  FOR
EXAMPLE, IT MAINTAINS AND TAKES CARE OF RAILROAD CARS WHICH ARE LEASED
TO RAILROADS FOR TRANSPORTATION IN INTERSTATE COMMERCE.  IT SERVICES
THESE CARS WHILE IN TRANSIT AND CONTROLS THEIR EVENTUAL DESTINATION. 
AND RESPONDENT HAS YARDS AND FACILITIES FOR THE REPAIR AND STORAGE OF
ITS REFRIGERATOR CARS.  THE QUESTION IS WHETHER SUCH FUNCTIONS AS THESE
ARE SUFFICIENT TO CONSTITUTE RESPONDENT A "COMMON CARRIER BY
RAILROAD."  FOR THE ANSWER TO THIS QUESTION WE MUST LOOK TO PAST
JUDICIAL DECISIONS INTERPRETING THE FEDERAL EMPLOYERS' LIABILITY ACT
AND ALSO THE LEGISLATIVE HISTORY SURROUNDING THE ACT. 

THIS COURT HAS HELD THAT THE WORDS "COMMON CARRIER BY RAILROAD" MEAN
"ONE WHO OPERATES A RAILROAD AS A MEANS OF CARRYING FOR THE PUBLIC,--
THAT IS TO SAY, A RAILROAD COMPANY ACTING AS A COMMON CARRIER.  THIS
VIEW NOT ONLY IS IN ACCORD WITH THE ORDINARY ACCEPTATION OF THE WORDS,
BUT IS ENFORCED BY THE MENTION OF CARS, ENGINES, TRACK, ROADBED AND
OTHER PROPERTY PERTAINING TO A GOING RAILROAD.  . . . "  WELLS FARGO &
CO. V. TAYLOR, 254 U.S. 175, 187-188.  THIS INTERPRETATION OF THE ACT
WITH ITS REFERENCES TO "OPERATING) A RAILROAD" AND A "GOING RAILROAD"
WOULD INDICATE THAT THE BUSINESS OF RENTING REFRIGERATOR CARS TO
RAILROADS OR SHIPPERS AND PROVIDING PROTECTIVE SERVICE IN THE
TRANSPORTATION OF PERISHABLE COMMODITIES IS NOT OF ITSELF THAT OF A
"COMMON CARRIER BY RAILROAD."  AND INDEED THE WELLS FARGO DECISION HELD
THAT EXPRESS COMPANIES WERE NOT WITHIN THE COVERAGE OF THE ACT.  /2/
IN AN EVEN EARLIER CASE, ROBINSON V. BALTIMORE & OHIO R. CO., 237 U.S.
84, THIS COURT HELD THAT A PULLMAN CAR PORTER WAS NOT AN EMPLOYEE OF A
RAILROAD, HENCE, NOT WITHIN THE COVERAGE OF THE ACT.  THESE DECISIONS
ARE BASED ON THE RATIONALE THAT THERE EXIST A NUMBER OF ACTIVITIES AND
FACILITIES WHICH, WHILE USED IN CONJUNCTION WITH RAILROADS AND CLOSELY
RELATED TO RAILROADING, ARE YET NOT RAILROADING ITSELF.  IN FACT, THIS
COURT POINTED OUT IN THE ROBINSON CASE, IN DISCUSSING THE COVERAGE OF
THE FEDERAL EMPLOYERS'  LIABILITY ACT, THAT, "IT WAS WELL KNOWN THAT
THERE WERE ON INTERSTATE TRAINS PERSONS ENGAGED IN VARIOUS SERVICES FOR
OTHER MASTERS.  CONGRESS, FAMILIAR WITH THIS SITUATION, DID NOT USE ANY
APPROPRIATE EXPRESSION WHICH COULD BE TAKEN TO INDICATE A PURPOSE TO
INCLUDE SUCH PERSONS AMONG THOSE TO WHOM THE RAILROAD COMPANY WAS TO BE
LIABLE UNDER THE ACT."  237 U.S.,AT 94. 

IN 1939 CONGRESS SUBSTANTIALLY AMENDED THE FEDERAL EMPLOYERS'
LIABILITY ACT.  BECAUSE OF SUCH DECISIONS AS WELLS FARGO, SUPRA, AND
ROBINSON, SUPRA, ONE OF THE PROPOSED AMENDMENTS /3/  WOULD HAVE CHANGED
THE COVERAGE LANGUAGE OF SEC. 1 OF THE ACT TO READ AS FOLLOWS:  "EVERY
COMMON CARRIER BY RAILROAD, INCLUDING EVERY EXPRESS COMPANY, FREIGHT
FORWARDING COMPANY, AND SLEEPING-CAR COMPANY, ENGAGED IN COMMERCE.  . .
. "  OBVIOUSLY THE PROPOSALWAS DESIGNED TO NULLIFY THIS COURT'S
CONSTRUCTION OF THE ACT WHICH HAD EXLCUDED EMPLOYEES OF SLEEPING-CAR
COMPANIES AND EXPRESS COMPANIES.  IN COMMITTEE THE PROPOSAL RECEIVED
LITTLE SUPPORT AND WAS EVEN OPPOSED BY CERTAIN SEGMENTS OF ORGANIZED
LABOR, AND IT FAILED TO PASS.  /4/  BY REFUSING TO BROADEN THE MEANING
OF RAILROADS, CONGRESS DECLINED TO EXTEND THE COVERAGE OF THE ACT TO
ACTIVITIES AND FACILITIES INTIMATELY ASSOCIATED WITH THE BUSINESS OF
COMMON CARRIER BY RAILROAD. 

EQUALLY SIGNIFICANT IS THE FACT THAT IN THE YEARS IMMEDIATELY
PRECEDING THE 1939 AMENDMENT TO THE FEDERAL EMPLOYERS' LIABILITY ACT,
CONGRESS HAD ENACTED OTHER MAJOR LABOR AND SOCIAL TRANSPORTATION
LEGISLATION IN WHICH REFRIGERATOR CAR COMPANIES WERE EXPRESSLY
INCLUDED.  FOR EXAMPLE, IN THE DECADE OF THE 1930'S CONGRESS PASSED THE
FOLLOWING ACTS WHICH SPECIFICALLY EXTEND COVERAGE TO "ANY COMPANY . . .
WHICH OPERATES ANY EQUIPMENT OR FACILITIES OR PERFORMS ANY SERVICE . .
. IN CONNECTION WITH . . . REFRIGERATION OR ICING . . . OF PROPERTY
TRANSPORTED BY RAILROAD . . . ":  (1) AN AMENDMENT TO THE RAILWAY LABOR
ACT, 48 STAT. 1185 (1934), 45 U.S.C. 151.  THE ACT AS ORIGINALLY
PASSED, 44 STAT. 577 (1926), DID NOT SPECIFICALLY INCLUDE REFRIGERATOR
CAR COMPANIES.  CONGRESS AMENDED IT TO DO SO.  (2) THE RAILROAD
RETIREMENT ACT OF 1934, 48 STAT. 1283, HELD UNCONSTITUTIONAL IN
RAILROAD RETIRMENT BOARD V. ALTON R. CO., 295 U.S. 330 (1935).  (3) THE
RAILROAD RETIREMENT ACT (1935), 49 STAT. 967, AND (4) THE CARRIERS'
TAXING ACT, 49 STAT. 974 (1935), BOTH OF WHICH WERE PASSED TO OVERCOME
THE CONSTITUTIONAL OBJECTION TO THE ACT OF 1934.  (5) THE RAILROAD
RETIREMENT ACT OF 1937, 50 STAT. 307, 45 U.S.C. 228A ET SEQ. (1937). 
(6) THE CARRIERS' TAXING ACT OF 1937, 50 STAT. 435.  (7) THE RAILROAD
UNEMPLOYMENT INSURANCE ACT, 52 STAT. 1094, 45 U.S.C. 351 ET SEQ.
(1938).  YET IN 1939, WHEN IT CAME TO THE AMENDMENT OF THE FEDERAL
EMPLOYERS' LIABILITY ACT, CONGRESS MADE NO MENTION OF REFRIGERATOR CAR
COMPANIES. 

IN LIGHT OF THIS HISTORY IT IS NOT SURPRISING THAT THERE ARE ONLY
FOUR REPORTED CASES WHERE SUITS HAVE BEEN FILED ALLEGING THAT
REFRIGERATOR CAR COMPANIES LIKE RESPONDENT ARE COVERED BY THE FEDERAL
EMPLOYERS' LIABILITY ACT-- ALL REFUSING TO HOLD LIABILITY UNDER THE
ACT.  THE FIRST WAS GAULDEN V. SOUTHERN APCIFIC CO., 174 F.2D 1022
(C.A. 9TH CIR. 1949), WHERE SUIT WAS BROUGHT BY AN ICEMAN EMPLOYED BY
THE VERY REFRIGERATOR CAR COMPANY INVOLVED HERE.  THE COURT OF APPEALS
AFFIRMED THE DISTRICT COURT'S OPINION (78 F.SUPP.  651) HOLDING THAT
SUCH A REFRIGERATOR CAR COMPANY WAS NOT A "COMMON CARRIER BY
RAILROAD."  IN A SUBSEQUENT CASE THE THIRD CIRCUIT, CITING THE GAULDEN
OPINION, HELD THAT ANOTHER REFRIGERATOR CAR COMPANY "WHICH CONDUCTED A
BUSINESS SIMILAR IN ALL CRITICAL ASPECTS TO THAT OF" PACIFIC FRUIT
EXPRESS COMPANY, WAS NOT A "COMMON CARRIER BY RAILROAD."  HETMAN V.
FRUIT GROWERS EXPRESS CO., 346 F.2D 947 (C.A.3D CIR. 1965).  THERE HAVE
ALSO BEEN TWO STATE CASES INVOLVING THIS VERY RESPONDENT WHICH DENIED
LIABILITY.  IN BOTH AGUIRRE V. SOUTHERN PACIFIC CO., 232 CAL.APP.2D
636, 43 CAL.RPTR.  73, AND MOLETON V. UNION PAC. R. CO., 118 UTAH 107,
219 P.2D 1080, CERT. DENIED, 340 U.S. 932, THE COURTS CONCLUDED THAT
RESPONDENT WAS NOT A "COMMON CARRIER BY RAILROAD." 

THUS, FOR 60 YEARS THE FEDERAL EMPLOYERS' LIABILITY ACT HAS BEEN
ADMINISTERED WITH THE UNDERSTANDING THAT REFRIGERATOR CAR COMPANIES ARE
NOT INCLUDED WITHIN THE TERMS OF THE ACT.  DURING THAT TIME INJURED
EMPLOYEES HAVE BEEN TAKEN CARE OF UNDER STATUE COMPENSATION LAWS.  IN
FACT THE PETITIONER HERE HAS ALREADY DRAWN MORE THAN $6,000 UNDER THE
CALIFORNIA COMPENSATION LAW.  THE QUESTION OF WHETHER EMPLOYEES SHALL
RELY ON STATE COMPENSATION OR ON THE FEDERAL EMPLOYERS' LIABILITY ACT
IS A PURE QUESTION OF LEGISLATIVE POLICY, CONCERNING WHICH APPARENTLY
EVEN THE LABOR ORGANIZATIONS MOST INTERESTED HAVE BEEN DIVIDED.  UNDER
THESE CIRCUMSTNACES WE DO NOT THINK THIS COURT SHOULD DEPART FROM 60
YEARS OF HISTORY TO DO WHAT IS A JOB FOR CONGRESS. 

              AFFIRMED. 

/1/  35 STAT. 65, AS AMENDED, 45 U.S.C. 51. 

/2/  EXPRESS COMPANIES WERE AGAIN EXCLUDED IN THE SUBSEQUENT CASE OF
JONES V. NEW YORK CENT. R. CO., 182 F.2D 326 (C.A. 6TH CIR. 1950),
RELYING ON THE WELLS FARGE DECISION. 

/3/  S. 1708, 76TH CONG., 1ST SESS. (1939). 

/4/  HEARINGS BEFORE SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY ON AMENDING THE FEDERAL EMPLOYERS' LIABILITY ACT, 76TH CONG.,
1ST SESS., 57, 58 (1939). 

ARNE WERCHICK ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS # DAVID S. LEVINSON. 

JOHN J. CORRIGAN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS DONALD O. ROY. 

CLIFTON HILDEBRAND FILED A BRIEF FOR THE BROTHERHOOD OF RAILWAY
CARMEN OF AMERICA ET AL., AS AMICI CURIAE, URGING REVERSAL. 
..END :


















IN RE RUFFALO, 390 U.S. 544 


       IN RE RUFFALO. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 73.  ARGUED MARCH 4, 1968.-- DECIDED APRIL 8, 1968. 


PETITIONER, A TRIAL LAWYER, WHO HANDLED MANY FEDERAL EMPLOYERS'
LIABILITY ACT (FELA) CASES, WAS CHARGED BY THE OHIO BOARD OF
COMMISSIONERS ON GRIEVANCES AND DISCIPLINE WITH 12 MISCONDUCT COUNTS. 
TWO CHARGES INVOLVED SOLICITING FELA PLAINTIFFS AS CLIENTS THROUGH
ORLANDO, A RAILROAD EMPLOYEE.  AT THE HEARINGS BEFORE THE BOARD BOTH
ORLANDO AND PETITIONER TESTIFIED THAT ORLANDO DID NOT SOLICIT CLIENTS
FOR PETITIONER BUT MERELY INVESTIGATED CASES FOR HIM, IN SOME OF WHICH
ORLANDO'S EMPLOYER WAS A DEFENDANT.  THEREAFTER THE BOARD ADDED A
MISCONDUCT CHARGE, NO. 13, BASED ON PETITIONER'S HIRING OF ORLANDO TO
INVESTIGATE ORLANDO'S OWN EMPLOYER.  THE BOARD FOUND PETITIONER GUILTY
OF SEVEN COUNTS OF MISCONDUCT, INCLUDING NO. 13, CONCERNING WHICH THE
BOARD RELIED SOLELY ON THE TESTIMONY OF PETITIONER AND ORLANDO.  ON
REVIEW THE OHIO SUPREME COURT FOUND THE EVIDENCE SUFFICIENT TO SUSTAIN
ONLY NO. 13 AND ONE OTHER CHARGE.  THE COURT'S ORDER INDEFINITELY
SUSPENDING PETITIONER FROM THE PRACTICE OF LAW BECAME FINAL AND IS NOT
HERE ON REVIEW.  THERE FOLLOWED PROCEEDINGS BASED ON THE STATE COURT'S
SUSPENSION ORDER TO BAR PETITIONER FROM PRACTICING IN THE COURT OF
APPEALS.  THE COURT OF APPEALS, RELYING SOLELY ON THE OHIO COURT'S
RECORD AND FINDINGS, HELD THAT ONE CHARGE, NO. 13, JUSTIFIED
PETITIONER'S DISBARMENT IN THAT COURT.  HELD:  THE LACK OF NOTICE TO
PETITIONER, PRIOR TO THE TIME HE AND ORLANDO TESTIFIED, THAT
PETITIONER'S EMPLOYMENT OF ORLANDO WOULD BE CONSIDERED A DISBARMENT
OFFENSE DEPRIVED PETITIONER OF PROCEDURAL DUE PROCESS.  PP. 547-552. 

(A) THOUGH STATE DISBARMENT ACTION IS ENTITLED TO RESPECT, IT IS NOT
CONCLUSIVELY BINDING ON THE FEDERAL COURTS.  THEARD V. UNITED STATES,
354 U.S. 278, 281-282.  P. 547. 

(B) A LAWYER CHARGED WITH MISCONDUCT IN A DISBARMENT PROCEEDING IS
ENTITLED TO PROCEDURAL DUE PROCESS, WHICH INCLUDES FAIR NOTICE OF
CHARGE.  P. 550. 

(C) PETITIONER HAD NO NOTICE THAT HIS EMPLOYMENT OF ORLANDO WOULD BE
CONSIDERED A DISBARMENT OFFENSE UNTIL AFTER BOTH PETITIONER AND ORLANDO
HAD TESTIFIED.  PP. 550-551. 

370 F.2D 447, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS ORDERED INDEFINITELY SUSPENDED FROM THE PRACTICE OF
LAW BY THE SUPREME COURT OF OHIO ON TWO FINDINGS OF ALLEGED
MISCONDUCT.  MAHONING COUNTY BAR ASSN. V. RUFFALO, 176 OHIO ST. 263,
199 N.E.2D 396.  THAT ORDER BECAME FINAL AND IS NOT HERE ON REVIEW. 
THE FEDERAL DISTRICT COURT, AFTER ORDERING PETITIONER TO SHOW CAUSE WHY
HE SHOULD NOT BE DISBARRED, FOUND THAT THERE WAS NO MISCONDUCT.  IN RE
RUFFALO, 249 F.SUPP.  432 (D.C.N.D. OHIO).  THE COURT OF APPEALS
LIKEWISE ORDERED PETITIONER TO SHOW CAUSE WHY HE SHOULD NOT BE STRICKEN
FROM THE ROLL OF THAT COURT ON THE BASIS OF OHIO'S DISBARMENT ORDER. 
THE MAJORITY HELD THAT WHILE ONE OF THE TWO CHARGES MIGHT NOT JUSTIFY
DISCIPLINE, THE OTHER ONE DID; AND IT DISBARRED PETITIONER FROM
PRACTICE IN THAT COURT.  370 F.2D 447 (C.A. 6TH CIR.).  THE DISSENTING
JUDGE THOUGHT THAT NEITHER CHARGE JUSTIFIED SUSPENSION FROM PRACTICE. 
/1/  ID., AT 460.  THE CASE IS HERE ON A WRIT OF CERTIORARI.  389 U.S.
815. 

PETITIONER WAS AN ACTIVE TRIAL LAWYER WHO HANDLED MANY FEDERAL
EMPLOYERS' LIABILITY ACT CASES.  THE ASSOCIATION OF AMERICAN RAILROADS
INVESTIGATED HIS HANDLING OF CLAIMS AND REFERRED CHARGES OF IMPROPRIETY
TO THE PRESIDENT OF THE MAHONING COUNTY BAR ASSOCIATION WHO WAS ALSO
LOCAL COUNSEL FOR THE BALTIMORE & OHIO RAILROAD CO. SEE IN RE RUFFALO,
249 F.SUPP.  432, 435, N. 3.  THE MAHONING COUNTY BAR ASSOCIATION THEN
FILED THE CHARGES AGAINST PETITIONER. 

IN THE STATE COURT PROCEEDINGS, UPON WHICH THE DECISION OF THE COURT
OF APPEALS RELIED (SEE RULE 6(3) OF THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT), THE OHIO BOARD OF COMMISSIONERS ON GRIEVANCES
AND DISCIPLINE ORIGINALLY CHARGED PETITIONER WITH 12 COUNTS OF
MISCONDUCT.  CHARGES NOS. 4 AND 5 ACCUSED PETITIONER OF SOLICITING FELA
PLAINTIFFS AS CLIENTS THROUGH AN AGENT, MICHAEL ORLANDO.  AT THE
HEARINGS WHICH FOLLOWED, BOTH ORLANDO AND PETITIONER TESTIFIED THAT
ORLANDO DID NOT SOLICIT CLIENTS FOR PETITIONER BUT MERELY INVESTIGATED
FELA CASES FOR HIM.  IT WAS BROUGHT OUT THAT SOME OF ORLANDO'S
INVESTIGATIONS INVOLVED CASES WHERE HIS EMPLOYER, THE BALTIMORE & OHIO
RAILROAD, WAS DEFENDANT.  IMMEDIATELY AFTER HEARING THIS TESTIMONY, THE
BOARD, ON THE THIRD DAY OF HEARINGS, ADDED A CHARGE NO. 13 AGAINST
PETITIONER BASED ON HIS HIRING ORLANDO TO INVESTIGATE ORLANDO'S OWN
EMPLOYER.  COUNSEL FOR PETITIONER OBJECTED, STATING: 

"OH, I OBJECT TO THAT VERY HIGHLY.  THERE IS NOTHING MORALLY WRONG
AND THERE IS NOTHING LEGALLY WRONG WITH IT. . . . WHEN DOES THE END OF
THESE AMENDMENTS COME?  I MEAN THE LAST MINUTE YOU ARE HERE, (COUNSEL
FOR THE COUNTY BAR ASSOCIATION) MAY BRING IN ANOTHER AMENDMENT.  I
THINK THIS GENTLEMAN (PETITIONER) HAS A RIGHT TO KNOW BEFOREHAND WHAT
THE CHARGES ARE AGAINST HIM AND BE HEARD ON THOSE CHARGES." 

MOTION TO STRIKE CHARGE NO. 13 WAS DENIED, BUT THE BOARD GAVE
PETITIONER A CONTINUANCE IN ORDER TO HAVE TIME TO RESPOND TO THE NEW
CHARGE. 

THE STATE BOARD FOUND PETITIONER GUILTY OF SEVEN COUNTS OF
MISCONDUCT, INCLUDING NO. 13.  ON REVIEW, THE SUPREME COURT OF OHIO
FOUND THE EVIDENCE SUFFICIENT TO SUSTAIN ONLY TWO CHARGES, ONE OF THEM
BEING NO. 13, BUT CONCLUDED THAT THE TWO VIOLATIONS REQUIRED
DISBARMENT.  THE ONLY CHARGE ON WHICH THE COURT OF APPEALS ACTED WAS
NO. 13, WHICH READS AS FOLLOWS: 

     "THAT RESPONDENT DID CONSPIRE WITH ONE, MICHAEL ORLANDO, AND

  PAID SAID MICHAEL ORLANDO MONEYS FOR PREPARING LAWSUITS AGAINST

  THE B. & O. RAILROAD, THE EMPLOYER OF SAID MICHAEL ORLANDO,

  DURING ALL THE PERIODS OF TIME EXTENDING FROM 1957 TO JULY OF

  1961, WELL KNOWING THAT SAID PRACTICE WAS DECEPTIVE IN ITS NATURE

AND WAS MORALLY AND LEGALLY WRONG AS RESPECTS THE EMPLOYEE,

 MICHAEL ORLANDO, TOWARD HIS EMPLOYER, THE B. & O. RAILROAD

  COMPANY." 

THOUGH ADMISSION TO PRACTICE BEFORE A FEDERAL COURT IS DERIVATIVE
FROM MEMBERSHIP IN A STATE BAR, DISBARMENT BY THE STATE DOES NOT RESULT
IN AUTOMATIC DISBARMENT BY THE FEDERAL COURT.  THOUGH THAT STATE ACTION
IS ENTITLED TO RESPECT, IT IS NOT CONCLUSIVELY BINDING ON THE FEDERAL
COURTS.  THEARD V. UNITED STATES, 354 U.S. 278, 281-282. 

PETITIONER, ACTIVE IN THE TRIAL OF FELA CASES, HIRED A RAILROAD MAN
TO HELP INVESTIGATE THE CASES.  HE WAS ORLANDO, A NIGHT-SHIFT CAR
INSPECTOR FOR THE BALTIMORE & OHIO RAILROAD CO. THERE WAS NO EVIDENCE
THAT ORLANDO EVER INVESTIGATED A CASE IN THE YARD WHERE HE WORKED AS
INSPECTOR.  THERE WAS NO EVIDENCE THAT HE EVER INVESTIGATED ON COMPANY
TIME.  ORLANDO HAD NO ACCESS TO CONFIDENTIAL INFORMATION; AND THERE WAS
NO CLAIM HE EVER REVEALED SECRET MATTERS OR BREACHED ANY TRUST.  IT IS
CLEAR FROM THE RECORD THAT PETITIONER CHOSE A RAILROAD MAN TO HELP HIM
INVESTIGATE THOSE CLAIMS BECAUSE ORLANDO KNEW RAILROADING. 

ONE FEDERAL GUIDEPOST IN THIS FIELD IS CONTAINED IN SEC. 10 OF THE
FEDERAL EMPLOYERS' LIABILITY ACT, AS AMENDED, 53 STAT. 1404, 45 U.S.C.
60, WHICH WAS ENACTED TO ENCOURAGE EMPLOYEES OF COMMON CARRIERS TO
FURNISH INFORMATION "TO A PERSON IN INTEREST," AS TO FACTS INCIDENT TO
THE INJURY OR DEATH OF AN EMPLOYEE.  /2/ 

THE OHIO SUPREME COURT, HOWEVER, INCLUDED THAT "ONE WHO BELIEVES
THAT IT IS PROPER TO EMPLOY AND PAY ANOTOHER TO WORK AGAINST THE
INTERESTS OF HIS REGULAR EMPLOYER IS NOT QUALIFIED TO BE A MEMBER OF
THE OHIO BAR."  176 OHIO AT.,AT 269, 199 N.E.2D, AT 401. 

WE ARE URGED TO HOLD THAT PETITIONER'S EFFORTS TO CONCEAL THIS
EMPLOYMENT RELATIONSHIP AND THE LIKELIHOOD OF A CONFLICT OF INTEREST
REQUIRE THE FEDERAL COURTS TO RESPECT THE DECISION OF THE OHIO SUPREME
COURT AS BEING WITHIN THE RANGE OF; DISCRETION. 

WE DO NOT PURSUE THAT INQUIRY.  NOR DO WE STOP TO INQUIRE WHETHER
THE PROCEEDING WAS DEFECTIVE BECAUSE THE BAR ASSOCIATION, THE AGENCY
THAT MADE THE CHARGES AGAINST PETITIONER, WAS HEADED BY COUNSEL FOR THE
BALTIMORE & OHIO RAILROAD CO. AGAINST WHICH PETITIONER FILED SEVERAL OF
HIS CLAIMS.  FOR THERE IS ONE OTHER ISSUE DISPOSITIVE OF THE CASE WHICH
REQUIRES REVERSAL. 

AS NOTED, THE CHARGE (NO. 13) FOR WHICH PETITIONER STANDS DISBARRED
WAS NOT IN THE ORIGINAL CHARGES MADE AGAINST HIM.  IT WAS ONLY AFTER
BOTH HE AND ORLANDO HAD TESTIFIED THAT THIS ADDITIONAL CHARGE WAS
ADDED.  THEREAFTER, NO ADDITIONAL EVIDENCE AGAINST PETITIONER RELATING
TO CHARGE NO. 13 WAS TAKEN.  RATHER, COUNSEL FOR THE COUNTY BAR
ASSOCIATION SAID: 

"WE WILL STIPULATE THAT AS FAR AS WE ARE CONCERNED, THE ONLY FACTS
THAT WE WILL INTRODUCE IN SUPPORT OF SPECIFICATION NO. 13 ARE THE
STATEMENTS THAT MR. RUFFALO HAS MADE HERE IN OPEN COURT AND THE
TESTIMONY OF MIKE ORLANDO FROM THE WITNESS STAND.  THOSE ARE THE ONLY
FACTS WE HAVE TO SUPPORT THIS SPECIFICATION NO. 13." 

THERE WAS NO DE NOVO HEARING BEFORE THE COURT OF APPEALS.  RATHER,
IT RESTED ON THE OHIO COURT'S RECORD AND FINDINGS: 

     "WE HAVE BEFORE US, AND HAVE REVIEWED, THE ENTIRE RECORD

  DEVELOPED BY THE OHIO PROCEEDINGS, BUT THINK IT PROPER TO DISPOSE

OF THE MATTER PRIMARILY UPON THE CHARGES ON WHICH THE OHIO COURT

  DISCIPLINED MR. RUFFALO.  THE FACTS AS TO THESE ARE NOT IN

  DISPUTE.  WE CONSIDER WHETHER WE FIND INSUPPORTABLE THE OHIO

  COURT'S DETERMINATION THAT SUCH FACTS DISCLOSED UNPROFESSIONAL

  CONDUCT WARRANTING THE DISCIPLINE IMPOSED AND WHETHER THEY

  WARRANT SIMILAR DISCIPLINE BY US."  370 F.2D, AT 449. 

THE COURT OF APPEALS PROCEEDED TO ANALYZE THE "ADMITTED FACTS OF CHARGE
NO. 13" AS FOUND BY THE OHIO COURT AND THE OHIO COURT'S RULING ON THOSE
FACTS.  ID., AT 450-452. 

IF THERE ARE ANY CONSTITUTIONAL DEFECTS IN WHAT THE OHIO COURT DID
CONCERNING CHARGE 13, THOSE DEFECTS ARE REFLECTED IN WHAT THE COURT OF
APPEALS DECIDED.  THE COURT OF APPEALS STATED: 

"WE DO NOT FIND IN THE RECORD OF THE STATE PROCEEDINGS, 'SUCH AN
INFIRMITY OF PROOF AS TO THE FACTS FOUND TO HAVE ESTABLISHED THE WANT
OF . . . (RUFFALO'S) FAIR PRIVATE AND PROFESSIONAL CHARACTER' TO LEAD
US TO A CONVICTION THAT WE CANNOT, CONSISTENT WITH OUR DUTY, 'ACCEPT AS
FINAL THE CONCLUSION' OF THE SUPREME COURT AND THE OHIO BAR."  ID., AT
453. 

WE TURN THEN TO THE QUESTION WHETHER IN OHIO'S PROCEDURE THERE WAS
ANY LACK OF DUE PROCESS. 

DISBARMENT, DESIGNED TO PROTECT THE PUBLIC, IS A PUNISHMENT OR
PENALTY IMPOSED ON THE LAWYER.  EX PARTE GARLAND, 4 WALL, 333, 380;
SPEVACK V. KLEIN, 385 U.S. 511, 515.  HE IS ACCORDINGLY ENTITLED TO
PROCEDURAL DUE PROCESS, WHICH INCLUDES FAIR NOTICE OF THE CHARGE.  SEE
IN RE OLIVER, 333 U.S. 257, 273.  IT WAS SAID IN RANDALL V. BRIGHAM, 7
WALL.  523, 540, THAT WHEN PROCEEDINGS FOR DISBARMENT ARE "NOT TAKEN
FOR MATTERS OCCURRING IN OPEN COURT, IN THE PRESENCE OF THE JUDGES,
NOTICE SHOULD BE GIVEN TO THE ATTORNEY OF THE CHARGES MADE AND
OPPORTUNITY AFFORDED HIM FOR EXPLANATION AND DEFENCE."  THEREFORE, ONE
OF THE CONDITIONS THIS COURT CONSIDERS IN DETERMINING WHETHER
DISBARMENT BY A STATE SHOULD BE FOLLOWED BY DISBARMENT HERE IS WHETHER
"THE STATE PROCEDURE FROM WANT OF NOTICE OR OPPORTUNITY TO BE HEARD WAS
WANTING IN DUE PROCESS."  SELLING V. RADFORD, 243 U.S. 46, 51. 

IN THE PRESENT CASE PETITIONER HAD NO NOTICE THAT HIS EMPLOYMENT OF
ORLANDO WOULD BE CONSIDERED A DISBARMENT OFFENSE UNTIL AFTER BOTH HE
AND ORLANDO HAD TESTIFIED AT LENGTH ON ALL THE MATERIAL FACTS
PERTAINING TO THIS PHASE OF THE CASE.  AS JUDGE EDWARDS, DISSENTING
BELOW, SAID, "SUCH PROCEDURAL VIOLATION OF DUE PROCESS WOULD NEVER PASS
MUSTER IN ANY NORMAL CIVIL OR CRIMINAL LITIGATION."  /3/  370 F.2D, AT
462 

THESE ARE ADVERSARY PROCEEDINGS OF A QUASI-CRIMINAL NATURE.  CF. IN
RE GAULT, 387 U.S. 1, 33.  THE CHARGE MUST BE KNOWN BEFORE THE
PROCEEDINGS COMMENCE.  THEY BECOME A TRAP WHEN, AFTER THEY ARE
UNDERWAY, THE CHARGES ARE AMENDED ON THE BASIS OF TESTIMONY OF THE
ACCUSED.  HE CAN THEN BE GIVEN NO OPPORTUNITY TO EXPUNGE THE EARLIER
STATEMENTS AND START AFRESH.  /4/ 

HOW THE CHARGE WOULD HAVE BEEN MET HAD IT BEEN ORIGINALLY INCLUDED
IN THOSE LEVELED AGAINST PETITIONER BY THE OHIO BOARD OF COMMISSIONERS
ON GRIEVANCES AND DISCIPLINE NO ONE KNOWS. 

THIS ABSENCE OF FAIR NOTICE AS TO THE REACH OF THE GRIEVANCE
PROCEDURE AND THE PRECISE NATURE OF THE CHARGES DEPRIVED PETITIONER OF
PROCEDURAL DUE PROCESS. 

              REVERSED. 

/1/  AFTER THE COURT OF APPEALS DECISION DISBARRING PETITIONER, THE
DISTRICT COURT, WHICH HAD DEFERRED A FINAL ORDER PENDING THE DECISION
OF THE COURT OF APPEALS, SUSPENDED PETITIONER FROM PRACTICE IN THE
DISTRICT COURT.  THE DISTRICT COURT JUDGE SAID HE HAD AN "ABIDING
CONVICTION" THAT HIS PRIOR DECISION FINDING NO GROUNDS FOR SUSPENSION
WAS CORRECT BUT CONCLUDED THAT ORDERLY ADMINISTRATION OF JUSTICE
REQUIRED THE DISTRICT COURT TO DEFER TO ITS COURT OF APPEALS.  THE
DISTRICT COURT'S ORDER IS NOT BEFORE US FOR REVIEW. 

/2/  45 U.S.C. 60 PROVIDES IN PART: 

"ANY CONTRACT, RULE, REGULATION, OR DEVICE WHATSOEVER, THE PURPOSE,
INTENT, OR EFFECT OF WHICH SHALL BE TO PREVENT EMPLOYEES OF ANY COMMON
CARRIER FROM FURNISHING VOLUNTARILY INFORMATION TO A PERSON IN INTEREST
AS TO THE FACTS INCIDENT TO THE INJURY OR DEATH OF ANY EMPLOYEE, SHALL
BE VOID, AND WHOEVER, BY THREAT, INTIMIDATION, ORDER, RULE, CONTRACT,
REGULATION, OR DEVICE WHATSOEVER, SHALL ATTEMPT TO PREVENT ANY PERSON
FROM FURNISHING VOLUNTARILY SUCH INFORMATION TO A PERSON IN INTEREST,
OR WHOEVER DISCHARGES OR OTHERWISE DISCIPLINES OR ATTEMPTS TO
DISCIPLINE ANY EMPLOYEE FOR FURNISHING VOLUNTARILY SUCH INFORMATION TO
A PERSON IN INTEREST, SHALL, UPON CONVICTION THEREOF, BE PUNISHED BY A
FINE OF NOT MORE THAN $1,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR,
OR BY BOTH SUCH FINE AND IMPRISONMENT, FOR EACH OFFENSE:  PROVIDED,
THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO VOID ANY CONTRACT,
RULE, OR REGULATION WITH RESPECT TO ANY INFORMATION CONTAINED IN THE
FILES OF THE CARRIER, OR OTHER PRIVILEGED OR CONFIDENTIAL REPORTS." 

/3/  RULE 15(A), FEDERAL RULES OF CIVIL PROCEDURE, PROVIDES IN
PART: 

"A PARTY MAY AMEND HIS PLEADING ONCE AS A MATTER OF COURSE AT ANY
TIME BEFORE A RESPONSIVE PLEADING IS SERVED OR, IF THE PLEADING IS ONE
TO WHICH NO RESPONSIVE PLEADING IS PERMITTED AND THE ACTION HAS NOT
BEEN PLACED UPON THE TRIAL CALENDAR, HE MAY SO AMEND IT AT ANY TIME
WITHIN 20 DAYS AFTER IT IS SERVED.  OTHERWISE A PARTY MAY AMEND HIS
PLEADING ONLY BY LEAVE OF COURT OR BY WRITTEN CONSENT OF THE ADVERSE
PARTY; AND LEAVE SHALL BE FREELY GIVEN WHEN JUSTICE SO REQUIRES." 

/4/  THE OHIO STATE BAR ASSOCIATION AND MAHONING COUNTY BAR
ASSOCIATION, AMICI CURIAE IN SUPPORT OF THE ORDER OF THE COURT OF
APPEALS, ARGUE THAT THERE WAS NO DUE PROCESS VIOLATION BECAUSE THE
STATE BOARD GAVE PETITIONER SEVERAL MONTHS TO RESPOND TO CHARGE NO.
13.  THIS ARGUMENT OVERLOOKS THE FACT THAT SERIOUS PREJUDICE TO
PETITIONER MAY WELL HAVE OCCURRED BECAUSE OF THE CONTENT OF THE
ORIGINAL 12 SPECIFICATIONS OF MISCONDUCT.  HE MAY WELL HAVE BEEN LULLED
"INTO A FALSE SENSE OF SECURITY" (BOWIE V. CITY OF COLUMBIA, 378 U.S.
347, 352) THAT HE COULD REBUT CHARGES NOS. 4 AND 5 BY ROOF THAT ORLANDO
WAS HIS INVESTIGATOR RATHER THAN A SOLICITOR OF CLIENTS.  IN THAT
POSTURE HE HAD "NO REASON EVEN TO SUSPECT" (IBID) THAT IN DOING SO HE
WOULD BE, BY HIS OWN TESTIMONY, IRREVOCABLY ASSURING HIS DISBARMENT
UNDER CHARGES NOT YET MADE.     MR. JUSTICE BLACK, FOR REASONS STATED
IN THE COURT'S OPINION AND MANY OTHERS, AGREES WITH THE COURT'S
JUDGMENT AND OPINION. 

MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I SEE NO NEED TO DECIDE WHETHER THE NOTICE GIVEN PETITIONER OF THE
CHARGE THAT FORMED THE BASIS OF HIS SUBSEQUENT FEDERAL DISBARMENT WAS
ADEQUATE TO AFFORD HIM CONSTITUTIONAL DUE PROCESS IN THE STATE
PROCEEDINGS.  FOR I THINK THAT THEARD V. UNITED STATES, 354 U.S. 278,
LEAVES US FREE TO HOLD, AS I WOULD, THAT SUCH NOTICE SHOULD NOT BE
ACCEPTED AS ADEQUATE FOR THE PURPOSES OF DISBARMENT FROM A FEDERAL
COURT.  ON THAT BASIS, I CONCUR IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE MARSHALL JOINS, CONCURRING
IN THE RESULT. 

THE COURT REVERSES PETITIONER'S DISBARMENT BY THE COURT OF APPEALS
FOR THE SIXTH CIRCUIT BECAUSE PETITIONER HAD INADEQUATE NOTICE PRIOR TO
HIS EARLIER STATE DISBARMENT PROCEEDING OF THE CHARGES WHICH THE
MAHONING COUNTY BAR ASSOCIATION WAS BRINGING AGAINST HIM AT THAT
PROCEEDING.  THE STATE DISBARMENT, HOWEVER, IS NOT BEFORE US.  WE
DENIED A PETITION FOR CERTIORARI SEEKING REVIEW OF IT.  RUFFALO V.
MAHONING COUNTY BAR ASSN., 379 U.S. 931 (1964).  OUR WRIT IN THE
INSTANT CASE EXTENDS ONLY TO PETITIONER'S DISBARMENT BY THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT.  THE QUESTION THEREFORE IS WHETHER THE
DEFECTIVE NOTICE IN PETITIONER'S STATE DISBARMENT PROCEEDING SO
INFECTED THAT FEDERAL PROCEEDING THAT JUSTICE REQUIRES REVERSAL OF THE
FEDERAL DETERMINATION. 

IN ANSWERING THAT QUESTION WE MUST INQUIRE INTO THE NATURE OF THE
PROCEEDING THAT TOOK PLACE IN THE COURT OF APPEALS.  THAT COURT WAS
OBLIGATED TO DETERMINE FOR ITSELF THE FACTS OF THE ATTORNEY'S CONDUCT
AND WHETHER THAT CONDUCT HAD BEEN SO GRIEVOUS AS TO REQUIRE
DISBARMENT.  THEARD V. UNITED STATES, 354 U.S. 278 (1957).  THE COURT
OF APPEALS ASKED PETITIONER TO "SHOW CAUSE IF ANY HE HAS . . . WHY HE
SHOULD NOT BE STRICKEN FROM THE ROLL OF COUNSEL OF THIS COURT."  IN
RESPONSE TO THAT ORDER PETITIONER FILED A RESPONSE AND BRIEF.  THE OHIO
STATE BAR ASSOCIATION FILED A BRIEF ALSO, URGING PETITIONER'S
DISBARMENT.  THE CAUSE WAS ARGUED ORALLY TO A PANEL OF THE COURT OF
APPEALS. 

IN HIS BRIEF AND ORAL ARGUMENT, PETITIONER DID NOT TAKE ISSUE WITH
THE DETERMINATIONS OF FACT THAT HAD BEEN MADE BY THE OHIO SUPREME
COURT.  THE COURT OF APPEALS GAVE PETITIONER A FULL OPPORTUNITY TO
ASSERT THAT THE STATE COURT HAD NOT ACCURATELY DETERMINED THE FACTS OF
HIS CONDUCT-- AND TO ASSERT, HAD HE WISHED TO DO SO, THAT THE LATE
POINT AT WHICH HE LEARNED THAT EMPLOYING CAR INSPECTOR ORLANDO WOULD BE
ONE GROUND FOR DISBARMENT HAD PREJUDICED THE FACTUAL RECORD FORMED IN
THE STATE COURT.  PETITIONER, NOT DISPUTING THE LOWER COURT'S FACTUAL
CONCLUSIONS, MADE NO SUCH OBJECTION.  /1/  INSTEAD PETITIONER'S
RESPONSE IN THE COURT OF APPEALS WAS THAT THE AGREED FACTS OF HIS
CONDUCT WERE NOT A SUFFICIENT BASIS FOR DISBARMENT.  IN REACHING ITS
CONCLUSION ON THAT QUESTION THE COURT OF APPEALS PROPERLY GAVE WEIGHT
TO THE VIEWS OF THE STATE COURT JUDGES WHO HAD PASSED ON THE ISSUE. 
PETITIONER, HOWEVER, HAD FULL AND FAIR OPPORTUNITY TO PUT TO THE COURT
OF APPEALS HIS CONTRARY VIEW.  I MUST THEREFORE CONCLUDE THAT NO
PROCEDURAL DEFECT SUPPORTS REVERSAL OF THE DECISION OF THE COURT OF
APPEALS, AND THAT THE ASSERTED DEFECT RELIED UPON BY THE COURT, SINCE
NOT RAISED BY PETITIONER BELOW OR HERE, IS NOT PROPERLY BEFORE US.  I
AM THEREFORE CONSTRAINED TO DEAL WITH THE CENTRAL QUESTION POSED BY
THIS CASE, WHETHER IT WAS PROPER FOR THE COURT OF APPEALS, IN MAKING
THE INDEPENDENT DETERMINATION OF PETITIONER'S FITNESS TO REMAIN A
MEMBER OF ITS BAR MANDATED BY THEARD V. UNITED STATES, SUPRA, TO DISBAR
PETITIONER FOR HAVING HIRED AN EMPLOYEE OF THE B. & O. RAILROAD TO
INVESTIGATE FACTS RELEVANT TO DAMAGE SUITS AGAINST THE RAILROAD BROUGHT
BY OTHER EMPLOYEES WHO HAD RETAINED PETITIONER TO REPRESENT THEM.  WE
MUST DETERMINE WHETHER THE COURT OF APPEALS SATISFIED ITS DUTY "NOT TO
DISBAR EXCEPT UPON THE CONVICTION THAT, UNDER THE PRINCIPLES OF RIGHT
AND JUSTICE, (IT IS) CONSTRAINED SO TO DO."  SELLING V. RADFORD, 243
U.S. 46, 51 (1917). 

A RELEVANT INQUIRY IN APPRAISING A DECISION TO DISBAR IS WHETHER THE
ATTORNEY STRICKEN FROM THE ROLLS CAN BE DEEMED TO HAVE BEEN ON NOTICE
THAT THE COURTS WOULD CONDEMN THE CONDUCT FOR WHICH HE WAS REMOVED. 
THE COURT OF APPEALS FOR THE SIXTH CIRCUIT HAD PROVIDED PETITIONER AND
THE OTHER MEMBERS OF ITS BAR WITH A GENERAL STANDARD FOR DISBARMENT: 

     "WHEN IT IS SHOWN TO THE COURT THAT ANY MEMBER OF ITS BAR HAS

  BEEN SUSPENDED OR DISBARRED FROM PRACTICE IN ANY OTHER COURT OF

  RECORD, OR HAS BEEN GUILTY OF CONDUCT UNBECOMING A MEMBER OF THE

BAR OF THE COURT, THE MEMBER WILL BE FORTHWITH SUSPENDED FROM

  PRACTICE BEFORE THE COURT AND NOTICE OF HIS SUSPENSION WILL BE

  MAILED TO HIM, AND UNLESS HE SHOWS GOOD CAUSE TO THE CONTRARY

  WITHIN 40 DAYS THEREAFTER, HE WILL BE FURTHER SUSPENDED OR

  DISBARRED FROM PRACTICE BEFORE THE COURT."  RULE 6(3), COURT OF

  APPEALS FOR THE SIXTH CIRCUIT.  /2/ 

EVEN WHEN A DISBARMENT STANDARD IS AS UNSPECIFIC AS THE ONE BEFORE
US, MEMBERS OF A BAR CAN BE ASSUMED TO KNOW THAT CERTAIN KINDS OF
CONDUCT, GENERALLY CONDEMNED BY RESPONSIBLE MEN, WILL BE GROUNDS FOR
DISBARMENT.  THIS CLASS OF CONDUCT CERTAINLY INCLUDES THE CRIMINAL
OFFENSES TRADITIONALLY KNOWN AS MALUM IN SE.  IT ALSO INCLUDES CONDUCT
WHICH ALL RESPONSIBLE ATTORNEYS WOULD RECOGNIZE AS IMPROPER FOR A
MEMBER OF THE PROFESSION. 

THE CONDUCT FOR WHICH THE COURT OF APPEALS DISBARRED PETITIONER
CANNOT, HOWEVER, BE SO CHARACTERIZED.  SOME RESPONSIBLE ATTORNEYS, LIKE
THE JUDGE WHO REFUSED TO ORDER PETITIONER DISBARRED FROM PRACTICE IN
THE NORTHERN DISTRICT OF OHIO, 249 F.SUPP.  432 (1965), WOULD
UNDOUBTEDLY FIND NO IMPROPRIETY AT ALL IN HIRING A RAILROAD WORKER, A
MAN WITH THE KNOWLEDGE AND EXPERIENCE TO SELECT RELEVANT INFORMATION
AND APPRAISE RELEVANT FACTS, TO "MOONLIGHT"-- WORK ON HIS OWN TIME--
COLLECTING DATA.  ON THE OTHER HAND SOME, LIKE THE OFFICIALS OF THE
MAHONING COUNTY AND OHIO STATE BAR ASSOCIATIONS, WOULD BELIEVE THAT
ENCOURAGING A MAN TO DO WORK ARGUABLY AT ODDS WITH HIS CHIEF EMPLOYER'S
INTERESTS IS UNETHICAL.  THE APPRAISAL OF PETITIONER'S CONDUCT IS ONE
ABOUT WHICH REASONABLE MEN DIFFER, NOT ONE IMMEDIATELY APPARENT TO ANY
SCRUPULOUS CITIZEN WHO CONFRONTS THE QUESTION.  /3/ I WOULD HOLD THAT A
FEDERAL COURT MAY NOT DEPRIVE AN ATTORNEY OF THE OPPORTUNITY TO
PRACTICE HIS PROFESSION ON THE BASIS OF A DETERMINATION AFER THE FACT
THAT CONDUCT IS UNETHICAL IF RESPONSIBLE ATTORNEYS WOULD DIFFER IN
APPRAISING THE PROPRIETY OF THAT CONDUCT.  I EXPRESS NO OPINION ABOUT
WHETHER THE COURT OF APPEALS, AS PART OF A CODE OF SPECIFIC RULES FOR
THE MEMBERS OF ITS BAR, COULD PROSCRIBE THE CONDUCT FOR WHICH
PETITIONER WAS DISBARRED. 

/1/  INDEED, PETITIONER DID NOT SUGGEST TO THIS COURT, AS A REASON
FOR REVERSAL, THAT HE HAD LEARNED OF THE GROUND FOR DISBARMENT TOO LATE
IN THE STATE COURT PROCEEDING. 

/2/  THE COURT OF APPEALS DID NOT APPLY ITS RULE LITERALLY:  "WE
SHOULD PRELIMINARILY OBSERVE THAT OUR OWN RULE 6(3) . . . COULD BE READ
AS AUTOMATICALLY STRIKING FROM OUR ROLL OF COUNSEL THE NAME OF ANY
LAWYER DISBARRED IN ANY COURT OF RECORD.  IT HAS BEEN AMENDED AND WE
CONSIDER THIS MATTER IN KEEPING WITH THE REQUIREMENTS AND ADMONITIONS
OF THEARD V. UNITED STATES, 354 U.S. 278, . . . AND SELLING V. RADFORD,
243 U.S. 46.  . . . THESE DECISIONS FORBID FEDERAL COURTS FROM ACTING
IN TOTAL RELIANCE ON A STATE JUDGMENT.  WE HAVE BEFORE US, AND HAVE
REVIEWED, THE ENTIRE RECORD DEVELOPED BY THE OHIO PROCEEDINGS, BUT
THINK IT PROPER TO DISPOSE OF THE MATTER PRIMARILY UPON THE CHARGES ON
WHICH THE OHIO COURT DISCIPLINED MR. RUFFALO.  THE FACTS AS TO THESE
ARE NOT IN DISPUTE."  370 F.2D 447, 449 (1966) (NOTE OMITTED). 

/3/  AS THE COURT POINTS OUT, THERE WAS NO EVIDENCE BEFORE ANY OF
THE STATE OR FEDERAL COURTS WHICH APPRAISED PETITIONER'S CONDUCT THAT
THE MAN HE EMPLOYED HAD EVER INVESTIGATED A CASE IN THE YARD WHERE HE
WORKED, INVESTIGATED ON COMPANY TIME, OR BEEN GIVEN ACCESS TO
CONFIDENTIAL RAILROAD INFORMATION. 

CRAIG SPANGENBERG ARGUED THE CAUSE AND FILED BRIEFS FOR PETITIONER. 

THOMAS V. KOYKKA ARGUED THE CAUSE FOR THE OHIO STATE AND MAHONING
COUNTY BAR ASSOCIATIONS.  WITH HIM ON THE BRIEF WERE SAMUEL T. GAINES,
WALTER A. PORTER, P. PAUL PUSATERI AND HENRY C. ROBINSON. 
..END :













AVCO CORP. V. AERO LODGE 735, 390 U.S. 557 


       AVCO CORP. V. AERO LODGE NO. 735, INTERNATIONAL ASSOCIATION

           OF MACHINISTS & AEROSPACE WORKERS, ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 445.  ARGUED MARCH 11, 1968.-- DECIDED APRIL 8, 1968. 


PETITIONER, EMPLOYER, BROUGHT SUIT IN A TENNESSEE COURT TO ENJOIN
RESPONDENT UNION AND ITS MEMBERS FROM STRIKING IN VIOLATION OF A "NO
STRIKE" CLAUSE IN THE COLLECTIVE BARGAINING AGREEMENT.  THE STATE COURT
ISSUED AN EX PARTE INJUNCTION.  RESPONDENTS MOVED IN FEDERAL DISTRICT
COURT FOR REMOVAL OF THE CASE, AND DISSOLUTION OF THE INJUNCTION.  THE
DISTRICT COURT RULED THAT THE ACTION WAS WITHIN ITS ORIGINAL
JURISDICTION, DENIED A MOTION TO REMAND TO THE STATE COURT, AND
DISSOLVED THE INJUNCTION.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  SINCE THIS ACTION IS BASED ON SEC. 301 OF THE LABOR MANAGEMENT
RELATIONS ACT, IT IS CONTROLLED BY FEDERAL SUBSTANTIVE LAW, EVEN THOUGH
BROUGHT IN A STATE COURT, AND REMOVAL IS BUT ONE ASPECT OF THE "PRIMACY
OF THE FEDERAL JUDICIARY IN DECIDING QUESTIONS OF FEDERAL LAW."  P.
560. 

2.  THIS SUIT CLEARLY ARISES UNDER THE "LAWS OF THE UNITED STATES,"
WITHIN THE MEANING OF THE REMOVAL STATUTE, 28 U.S.C. 1441(B), AND IS
WITHIN THE "ORIGINAL JURISDICTION" OF THE DISTRICT COURT UNDER SECS.
1441(A) AND (B).  P. 560. 

3.  THE NATURE OF THE RELIEF AVAILABLE AFTER JURISDICTION ATTACHES
IS DIFFERENT FROM THE QUESTION WHETHER THE COURT HAS JURISDICTION TO
ADJUDICATE THE CONTROVERSY.  P. 561. 

376 F.2D 337, AFFIRMED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER FILED A SUIT IN A STATE COURT IN TENNESSEE TO ENJOIN
RESPONDENT UNION AND ITS MEMBERS AND ASSOCIATES FROM STRIKING AT
PETITIONER'S PLANT.  THE HEART OF THE COMPLAINT WAS A "NO-STRIKE"
CLAUSE IN THE COLLECTIVE BARGAINING AGREEMENT BY WHICH "GRIEVANCES"
WERE TO BE SETTLED AMICABLY OR BY BINDING ARBITRATION.  THE ELIGIBILITY
OF EMPLOYEES FOR PROMOTION ENGENDERED DISPUTES-- ALLEGEDLY SUBJECT TO
THE GRIEVANCE PROCEDURE-- WHICH SO FAR AS APPEARS INVOLVED NO VIOLENCE
OR TRESPASS BUT WHICH RESULTED IN WORK STOPPAGES AND A WALKOUT BY
EMPLOYEES.  THE STATE COURT ISSUED AN EX PARTE INJUNCTION. 

RESPONDENTS THEN MOVED IN THE FEDERAL DISTRICT COURT FOR REMOVAL OF
THE CASE.  /1/ A MOTION TO REMAND TO THE STATE COURT WAS MADE AND
DENIED, THE DISTRICT COURT RULING THAT THE ACTION WAS WITHIN ITS
ORIGINAL JURISDICTION.  THE DISTRICT COURT GRANTED RESPONDENTS' MOTION
TO DISSOLVE THE INJUNCTION ISSUED BY THE TENNESSEE COURT.  THE COURT OF
APPEALS AFFIRMED.  376 F.2D 337.  WE GRANTED THE PETITION FOR
CERTIORARI (389 U.S. 819) BECAUSE OF AN APPARENT CONFLICT BETWEEN THE
DECISION BELOW AND AMERICAN DREDGING CO. V. LOCAL 25, 338 F.2D 837,
FROM THE COURT OF APPEALS FOR THE THIRD CIRCUIT. 

THE STARTING POINT IS SEC. 301 OF THE LABOR MANAGEMENT RELATIONS
ACT, 1947, 61 STAT. 156, 29 U.S.C. 185, WHICH, WE HELD IN TEXTILE
WORKERS V. LINCOLN MILLS, 353 U.S. 448, WAS FASHIONED BY CONGRESS TO
PLACE SANCTIONS BEHIND AGREEMENTS TO ARBITRATE GRIEVANCE DISPUTES.  WE
STATED: 

"WE CONCLUDE THAT THE SUBSTANTIVE LAW TO APPLY IN SUITS UNDER SEC.
301(A) IS FEDERAL LAW, WHICH THE COURTS MUST FASHION FROM THE POLICY OF
OUR NATIONAL LABOR LAWS.  . . . THE LABOR MANAGEMENT RELATIONS ACT
EXPRESSLY FURNISHES SOME SUBSTANTIVE LAW.  IF POINTS OUT WHAT THE
PARTIES MAY OR MAY NOT DO IN CERTAIN SITUATIONS.  OTHER PROBLEMS WILL
LIE IN THE PENUMBRA OF EXPRESS STATUTORY MANDATES.  SOME WILL LACK
EXPRESS STATUTORY SANCTION BUT WILL BE SOLVED BY LOOKING AT THE POLICY
OF THE LEGISLATION AND FASHIONING A REMEDY THAT WILL EFFECTUATE THAT
POLICY.  THE RANGE OF JUDICIAL INVENTIVENESS WILL BE DETERMINED BY THE
NATURE OF THE PROBLEM.  . . . FEDERAL INTERPRETATION OF THE FEDERAL LAW
WILL GOVERN, NOT STATE LAW.  . . . BUT STATE LAW, IF COMPATIBLE WITH
THE PURPOSE OF SEC. 301, MAY BE RESORTED TO IN ORDER TO FIND THE RULE
THAT WILL BEST EFFECTUATE THE FEDERAL POLICY.  . . . ANY STATE LAW
APPLIED, HOWEVER, WILL BE ABSORBED AS FEDERAL LAW AND WILL NOT BE AN
INDEPENDENT SOURCE OF PRIVATE RIGHTS."  353 U.S.,AT 456-457. 

AN ACTION ARISING UNDER SEC. 301 IS CONTROLLED BY FEDERAL
SUBSTANTIVE LAW EVEN THOUGH IT IS BROUGHT IN A STATE COURT.  /2/
HUMPHREY V. MOORE, 375 U.S. 335; LOCAL 174 V. LUCAS FLOUR CO., 369 U.S.
95; CHARLES DOWD BOX CO. V. COURTNEY, 368 U.S. 502.  REMOVAL IS BUT ONE
ASPECT /3/  OF "THE PRIMACY OF THE FEDERAL JUDICARY IN DECIDING
QUESTIONS OF FEDERAL LAW."  SEE ENGLAND V. MEDICAL EXAMINERS, 375 U.S.
411, 415-416. 

IT IS THUS CLEAR THAT THE CLAIM UNDER THIS COLLECTIVE BARGAINING
AGREEMENT IS ONE ARISING UNDER THE "LAWS OF THE UNITED STATES" WITHIN
THE MEANING OF THE REMOVAL STATUTE.  28 U.S.C. 1441(B).  IT LIKEWISE
SEEMS CLEAR THAT THIS SUIT IS WITHIN THE "ORIGINAL JURISDICTION" OF THE
DISTRICT COURT WITHIN THE MEANING OF 28 U.S.C. 1441(A) AND (B).  IT IS
TRUE THAT THE COURT BY A 5-TO-3 DECISION IN SINCLAIR REFINING CO. V.
ATKINSON, 370 U.S. 195, HELD THAT ALTHOUGH A CASE WAS PROPERLY IN THE
FEDERAL DISTRICT COURT BY REASON OF SEC. 301, THE NORRIS-LAGUARDIA ACT
BARS THAT COURT FROM ISSUING AN INJUNCTION IN THE LABOR DISPUTE.  THE
NATURE OF THE RELIEF AVAILABLE AFTER JURISDICTION ATTACHES IS, OF
COURSE, DIFFERENT FROM THE QUESTION WHETHER THERE IS JURISDICTION TO
ADJUDICATE THE CONTROVERSY.  THE RELIEF IN SEC. 301 CASES VARIES-- FROM
SPECIFIC PERFORMANCE OF THE PROMISE TO ARBITRATE (TEXTILE WORKERS V.
LINCOLN MILLS, SUPRA), TO ENFORCEMENT OR ANNULMENT OF AN ARBITRATION
AWARD (UNITED STEEL WORKERS V. ENTERPRISE WHEEL & CAR CORP., 363 U.S.
593), TO AN AWARD OF COMPENSATORY DAMAGES (ATKINSON V. SINCLAIR
REFINING CO., 370 U.S. 238), AND THE LIKE.  SEE SMITH V. EVENING NEWS
ASSN., 371 U.S. 195, 199-200.  BUT THE BREADTH OR NARROWNESS OF THE
RELIEF WHICH MAY BE GRANTED UNDER FEDERAL LAW IN SEC. 301 CASES IS A
DISTINCT QUESTION FROM WHETHER THE COURT HAS JURISDICTION OVER THE
PARTIES AND THE SUBJECT MATTER.  ANY ERROR IN GRANTING OR DESIGNING
RELIEF "DOES NOT GO TO THE JURISDICTION OF THE COURT."  SWIFT & CO. V.
UNITED STATES, 276 U.S. 311, 331.  CF. ZWICKLER V. KOOTA, 389 U.S. 241,
254-255.  WHEN THE COURT IN SINCLAIR REFINING CO. V. ATKINSON, SUPRA,
AT 215, SAID THAT DISMISSAL OF A COUNT IN THE COMPLAINT ASKING FOR AN
INJUNCTION WAS CORRECT "FOR LACK OF JURISDICTION UNDER THE NORRIS
LAGUARDIA ACT," IT MEANT ONLY THAT THE FEDERAL DISTRICT COURT LACKED
THE GENERAL EQUITY POWER TO GRANT THE PARTICULAR RELIEF.  /4/ 

TITLE 28 U.S.C. 1337 SAYS THAT "THE DISTRICT COURTS SHALL HAVE
ORIGINAL JURISDICTION OF ANY CIVIL ACTION OR PROCEEDING ARISING UNDER
ANY ACT OF CONGRESS REGULATING COMMERCE.  . . . "  IT IS THAT ORIGINAL
JURISDICTION THAT A SEC. 301 ACTION INVOKES.  TEXTILE WORKERS V.
LINCOLN MILLS, SUPRA, AT 457. 

              AFFIRMED. 

/1/  28 U.S.C. 1441 PROVIDES IN RELEVANT PART: 

"ACTIONS REMOVABLE GENERALLY. 

"(A) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY ACT OF CONGRESS, ANY
CIVIL ACTION BROUGHT IN A STATE COURT OF WHICH THE DISTRICT COURTS OF
THE UNITED STATES HAVE ORIGINAL JURISDICTION, MAY BE REMOVED BY THE
DEFENDANT OR THE DEFENDANTS, TO THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT AND DIVISION EMBRACING THE PLACE WHERE SUCH ACTION IS
PENDING. 

"(B) ANY CIVIL ACTION OF WHICH THE DISTRICT COURTS HAVE ORIGINAL
JURISDICTION FOUNDED ON A CLAIM OR RIGHT ARISING UNDER THE
CONSTITUTION, TREATIES OR LAWS OF THE UNITED STATES SHALL BE REMOVABLE
WITHOUT REGARD TO THE CITIZENSHIP OR RESIDENCE OF THE PARTIES.  . . .
" 

/2/  WE FIND IT UNNECESSARY TO RULE ON THE HOLDING OF THE COURT OF
APPEALS BELOW THAT "THE REMEDIES AVAILABLE IN STATE COURTS ARE LIMITED
TO THE REMEDIES AVAILABLE UNDER FEDERAL LAW."  376 F.2D, AT 343.  THAT
CONCLUSION WOULD SUGGEST THAT STATE COURTS ARE PRECLUDED BY SEC. 4 OF
THE NORRIS-LAGUARDIA ACT FROM ISSUING INJUNCTIONS IN LABOR DISPUTES,
EVEN THOUGH THE DEFENDANT DOES NOT EXERCISE HIS RIGHT-- WHICH WE
CONFIRM TODAY-- TO REMOVE THE CASE TO THE DISTRICT COURT UNDER 28
U.S.C. 1441(B), AND THE STATE COURT THEREFORE RETAINS JURISDICTION OVER
THE ACTION.  WE HAVE NO OCCASION TO RESOLVE THAT MATTER HERE, SINCE
RESPONDENTS DID ELECT TO HAVE THE CASE REMOVED. 

/3/  SEE A. DOBIE, HANDBOOK OF FEDERAL JURISDICTION AND PROCEDURE
346 (1928); H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 727-733, 1019-1020 (1953). 

/4/  ANOTHER QUESTION RAISED HERE IS WHETHER THE DISTRICT COURT, TO
WHICH THE ACTION HAD BEEN REMOVED, SHOULD HAVE DISSOLVED THE INJUNCTION
ISSUED BY THE TENNESSEE STATE COURT.  THERE IS, OF COURSE, NO QUESTION
OF THE POWER OF THE DISTRICT COURT TO DISSOLVE THE INJUNCTION.  SEE 28
U.S.C. 1450.  WHETHER IT DID SO BECAUSE IT FELT THAT ACTION WAS
REQUIRED BY SINCLAIR REFINING CO. V. ATKINSON, 370 U.S. 195, OR BECAUSE
OF ITS EQUITY POWERS OR BOTH IS NOT CLEAR.  BUT THE COURT OF APPEALS
WENT MUCH FURTHER AND SAID IN A DICTUM THAT "THE REMEDIES AVAILABLE IN
STATE COURTS ARE LIMITED TO THE REMEDIES AVAILABLE UNDER FEDERAL LAW." 
376 F.2D, AT 343.  WE RESERVE DECISION ON THOSE QUESTIONS. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
BRENNAN JOIN, CONCURRING. 

I AGREE THAT THE CASE BEFORE US WAS REMOVABLE TO THE FEDERAL
DISTRICT COURT UNDER 28 U.S.C. 1441. 

THE DISTRICT JUDGE NOT ONLY DENIED A MOTION TO REMAND THE CASE TO
THE STATE COURT BUT ALSO DISSOLVED THE STATE COURT INJUNCTION, AND IT
IS ONLY BY VIRTUE OF THE LATTER ORDER THAN AN APPEAL WAS POSSIBLE AT
THIS STAGE OF THE LITIGATION.  AMERICAN DREDGING CO. V. LOCAL 25, 338
F.2D 837, 838, N. 2. 

AS THE COURT SAYS, IT IS NOT CLEAR WHETHER OR NOT THE DISTRICT JUDGE
DISSOLVED THE INJUNCTION "BECAUSE (HE) FELT THAT ACTION WAS REQUIRED BY
SINCLAIR REFINING CO. V. ATKINSON, 370 U.S. 195," ANTE, AT 561, N. 4. 
ACCORDINGLY, THE COURT EXPRESSLY RESERVES DECISION ON THE EFFECT OF
SINCLAIR IN THE CIRCUMSTANCES PRESENTED BY THIS CASE.  THE COURT WILL,
NO DOUBT, HAVE AN OPPORTUNITY TO RECONSIDER THE SCOPE AND CONTINUING
VALIDITY OF SINCLAIR UPON AN APPROPRIATE FUTURE OCCASION. 

J. MACK SWIGERT ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE WARREN G. SULLIVAN, DON A. BANTA, WILLIAM WALLER, ROBERT G.
MCCULLOUGH AND JOHN B. HOLLISTER. 

BERNARD DUNAU ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE PLATO E. PAPPS, CECIL D. BRANSTETTER AND CARROL D. KILGORE. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY JEROME
POWELL, ROBERT M. SCOTT AND WILLIAM H. WILLCOX FOR THE CHAMBER OF
COMMERCE OF THE UNITED STATES ET AL., AND BY HERMAN LAZARUS AND HAROLD
JACOBS FOR THE LABOR RELATIONS COMMITTEE OF COUNCIL OF STATE CHAMBERS
OF COMMERCE ET AL. 

BRIEF OF AMICUS CURIAE, URGING AFFIRMANCE, WAS FILED BY J. ALBERT
WOLL, LAURENCE GOLD AND THOMAS E. HARRIS FOR THE AMERICAN FEDERATION OF
LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS. 
..END :




















UNITED STATES V. JOHNSON, 390 U.S. 563 


       UNITED STATES V. JOHNSON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF GEORGIA. 

        NO. 482.  ARGUED MARCH 14, 1968.-- DECIDED APRIL 8, 1968. 


THOUGH THE EXCLUSIVE-REMEDY PROVISION OF THE CIVIL RIGHTS ACT OF
1964, SEC. 207(B), CONFINES THE ENFORCEMENT OF SUBSTANTIVE RIGHTS UNDER
THE ACT TO INJUNCTIVE RELIEF, AND THUS BARS CRIMINAL ACTION AGAINST
PROPRIETORS AND OWNERS OF FACILITIES FOR REFUSAL TO SERVE NEGROES, IT
DOES NOT FORECLOSE CRIMINAL ACTION AGAINST OUTSIDERS HAVING NO RELATION
TO THE PROPRIETORS OR OWNERS.  THE DISTRICT COURT, THEREFORE, ERRED IN
DISMISSING AN INDICTMENT UNDER 18 U.S.C. 241 AGAINST OUTSIDE HOODLUMS
FOR CONSPIRING TO ASSAULT NEGROES FOR EXERCISING THEIR FEDERAL RIGHTS
UJDER THE ACT.  PP. 564-567. 

269 F.SUPP.  706, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER CONSPIRACIES BY OUTSIDE HOODLUMS
TO ASSAULT NEGROES FOR EXERCISING THEIR RIGHT TO EQUALITY IN PUBLIC
ACCOMMODATIONS UNDER SEC. 201 OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT.
243, 42 U.S.C. 2000A, ARE SUBJECT ONLY TO A CIVIL SUIT FOR AN
INJUNCTION AS PROVIDED IN SEC. 204 OF THAT ACT, 42 U.S.C. 2000A-3, OR
WHETHER THEY ARE ALSO SUBJECT TO CRIMINAL PROSECUTION UNDER 18 U.S.C.
241, WHICH PROVIDES FINE AND IMPRISONMENT FOR A CONSPIRACY "TO INJURE,
OPPRESS, THREATEN, OR INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR
ENJOYMENT OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION
OR LAWS OF THE UNITED STATES, OR BECAUSE OF HIS HAVING SO EXERCISED THE
SAME.  . . . " 

THE INDICTMENT CHARGED A CONSPIRACY TO INJURE AND INTIMIDATE THREE
NEGROES IN THE EXERCISE OF THEIR RIGHT TO PATRONIZE A RESTAURANT.  THE
DEFENDANTS, WHO WERE OUTSIDERS, NOT CONNECTED WITH THE RESTAURANT, ARE
CHARGED WITH HAVING USED VIOLENCE AGAINST THESE NEGROES FOR HAVING
RECEIVED SERVICE AT THE RESTAURANT, THE PURPOSE OF THE CONSPIRACY BEING
IN PART "TO DISCOURAGE THEM AND OTHER NEGRO CITIZENS FROM SEEKING
SERVICE" THERE "ON THE SAME BASIS AS WHITE CITIZENS." 

THE FACTS ARE NOT DEVELOPED BECAUSE THE DISTRICT COURT GRANTED A
MOTION TO DISMISS THE INDICTMENT ON THE GROUND THAT SEC. 207(B) OF THE
ACT /1/  MAKES THE PROVISION FOR RELIEF BY INJUNCTION THE EXCLUSIVE
REMEDY UNDER THE ACT.  THE CASE IS HERE ON APPEAL.  18 U.S.C. 3731.  WE
NOTED PROBABLE JURISDICTION.  389 U.S. 910. 

THE LEGISLATIVE HISTORY CONTAINS LANGUAGE WHICH TO THE DISTRICT
COURT SEEMED TO PRECLUDE REMEDY BY INDICTMENT.  SENATOR HUMPHREY, FLOOR
MANAGER OF THE BILL, EXPLAINED SEC. 207(B): 

"THIS WOULD MEAN, FOR EXAMPLE, THAT A PROPRIETOR WHO, IN THE FIRST
INSTANCE, LEGITIMATELY-- BUT ERRONEOUSLY-- BELIEVES HIS ESTABLISHMENT
IS NOT COVERED BY SECTION 201 OR 202 NEED NOT FEAR A JAIL SENTENCE OR A
DAMAGE ACTION IF HIS JUDGMENT AS TO COVERAGE OF TITLE II IS WRONG." 
110 CONG.REC.  9767. 

SENATOR YOUNG AGREED: 

     "THE ENFORCEMENT PROVISIONS OF TITLE II ARE BASED ON THE

  SPECIFIC PROHIBITION IN SECTION 203 AGAINST DENYING OR

  INTERFERING WITH THE RIGHT TO THE NONDISCRIMINATORY USE OF

  FACILITIES COVERED BY THE TITLE.  IN CASE OF A VIOLATION, THE

  AGGRIEVED PERSON WOULD BE ABLE TO SUE FOR AN INJUNCTION TO END

  THE DENIAL OR INTERFERENCE.  . . . THE PROHBITIONS OF TITLE II

  WOULD BE ENFORCED ONLY BY CIVIL SUITS FOR AN INJUNCTION.  NEITHER

  CRIMINAL PENALTIES NOR THE RECOVERY OF MONEY DAMAGES WOULD BE

  INVOLVED."  110 CONG.REC.  7384. 

SENATOR MAGNUSON ADDED: 

   "MOREOVER, IN EVERY CASE, A JUDICIAL DETERMINATION OF COVERAGE

  MUST BE MADE PRIOR TO THE ENTRY OF ANY ORDER REQUIRING THE OWNER

  TO STOP DISCRIMINATION.  THUS, NO ONE WOULD BECOME SUBJECT TO ANY

  CONTEMPT SANCTIONS-- THE ONLY SANCTIONS PROVIDED FOR IN THE ACT,

  UNTIL AFTER IT HAS BEEN JUDICIALLY DETERMINED THAT HIS

  ESTABLISHMENT IS SUBJECT TO THE ACT AND HE HAS BEEN ORDERED BY

  THE COURT TO END THIS DISCRIMINATION, AND HE HAS VIOLATED THAT

  COURT ORDER."  110 CONG.REC.  7405. 

THAT LEGISLATIVE HISTORY MAKES CLEAR THAT THE "PROPRIETOR" OR
"OWNER" IS NOT TO BE SUBJECTED TO CRIMINAL LIABILITY, WHERE HE HAS NOT
HAD A CHANCE TO LITIGATE WHETHER HIS FACILITIES ARE SUBJECT TO THE
ACT.  BUT NO PROPRIETOR OR OWNER IS HERE INVOLVED.  OUTSIDE HOODLUMS
ARE CHARGED WITH THE CONSPIRACY; AND THE HISTORY OF FEDERAL LAW, AS
APPLICABLE TO THEM, IS CLEAR.  18 U.S.C 241 IS DERIVED FROM THE
ENFORCEMENT ACT OF 1870, SEC. 6, 16 STAT. 141, AND, AS NOTED, PROTECTS
THE CITIZEN "IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT OR
PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES."  THE RIGHT TO SERVICE IN A RESTAURANT IS SUCH A "RIGHT," AT
LEAST BY VIRTUE OF THE 1964 ACT.  WE SAID IN UNITED STATES V. PRICE,
383 U.S. 787, 801, IN REFERENCE TO 18 U.S.C. 241, "WE THINK THAT
HISTORY LEAVES NO DOUBT THAT, IF WE ARE TO GIVE SEC. 241 THE SCOPE THAT
ITS ORIGINS DICTATE, WE MUST ACCORD IT A SWEEP AS BROAD AS ITS
LANGUAGE." 

WE HAVE OVER THE YEARS GIVEN PROTECTION TO MANY FEDERAL RIGHTS UNDER
SEC. 241.  /2/  WE REFUSE TO BELIEVE THAT HOODLUMS OPERATING IN THE
FASHION OF THE KU KLUX KLAN, WERE GIVEN PROTECTION BY THE 1964 ACT FOR
VIOLATING THOSE "RIGHTS" OF THE CITIZEN THAT SEC. 241 WAS DESIGNED TO
PROTECT. 

IMMEDIATELY AFTER THE PROVISION IN SEC. 207(B) STATING THAT THE
REMEDIES PROVIDED "SHALL BE THE EXCLUSIVE MEANS OF ENFORCING THE RIGHTS
BASED ON THIS TITLE," IS A FURTHER PROVISION STATING THAT "NOTHING IN
THIS TITLE SHALL PRECLUDE ANY INDIVIDUAL OR ANY STATE OR LOCAL AGENCY
FROM ASSERTING ANY RIGHT BASED ON ANY OTHER FEDERAL OR STATE LAW NOT
INCONSISTENT WITH THIS TITLE . . . OR FROM PURSUING ANY REMEDY, CIVIL
OR CRIMINAL, WHICH MAY BE AVAILABLE FOR THE VINDICATION OR ENFORCEMENT
OF SUCH RIGHT."  THERE IS, THEREFORE, WITHIN THE FOUR CORNERS OF SEC.
207(B) EVIDENCE THAT IT WAS NOT DESIGNED AS PRE-EMPTING EVERY OTHER
MODE OF PROTECTING A FEDERAL "RIGHT" OR AS GRANTING IMMUNITY TO THOSE
WHO HAD LONG BEEN SUBJECT TO THE REGIME OF SEC. 241. 

IT IS, OF COURSE, TRUE THAT SEC. 203(B) OF THE ACT, 42 U.S.C. SEC.
2000A-2(B), BARS THE USE OF VIOLENCE AGAINST THOSE WHO ASSERT THEIR
RIGHTS UNDER THE ACT, AND THAT THEREFORE A REMEDY BY WAY OF AN
INJUNCTION COULD BE OBTAINED BY THE PARTY AGGRIEVED UNDER SEC. 204(A). 
A LIKE REMEDY IS AVAILABLE TO THE ATTORNEY GENERAL BY REASON OF SEC.
206(A).  BUT AS WE READ THE ACT, THE EXCLUSIVE-REMEDY PROVISION OF SEC.
207(B) WAS INSERTED ONLY TO MAKE CLEAR THAT THE SUBSTANTIVE RIGHTS TO
PUBLIC ACCOMMODATION DEFINED IN SEC. 201 AND SEC. 202 ARE TO BE
ENFORCED EXCLUSIVELY BY INJUNCTION.  PROPRIETORS AND OWNERS ARE NOT TO
BE PROSECUTED CRIMINALLY FOR MERE REFUSAL TO SERVE NEGROES.  BUT THE
ACT DOES NOT PURPORT TO DEAL WITH OUTSIDERS; NOR CAR WE IMAGINE THAT
CONGRESS DESIRED TO GIVE THEM A BRAND NEW IMMUNITY FROM PROSECUTION
UNDER 18 U.S.C. 241-- A STATUTE THAT ENCOMPASSES "ALL OF THE RIGHTS AND
PRIVILEGES SECURED TO CITIZENS BY ALL OF THE CONSTITUTION AND ALL OF
THE LAWS OF THE UNITED STATES."  UNITED STATES V. PRICE, SUPRA, AT
800. 

REVERSED. 

/1/  SECTION 207(B) OF THE ACT, 42 U.S.C. 2000A-6(B), PROVIDES: 

"THE REMEDIES PROVIDED IN THIS TITLE SHALL BE THE EXCLUSIVE MEANS OF
ENFORCING THE RIGHTS BASED ON THIS TITLE, BUT NOTHING IN THIS TITLE
SHALL PRECLUDE ANY INDIVIDUAL OR ANY STATE OR LOCAL AGENCY FROM
ASSERTING ANY RIGHT BASED ON ANY OTHER FEDERAL OR STATE LAW NOT
INCONSISTENT WITH THIS TITLE, INCLUDING ANY STATUTE OR ORDINANCE
REQUIRING NONDISCRIMINATION IN PUBLIC ESTABLISHMENTS OR ACCOMMODATIONS,
OR FROM PURSUING ANY REMEDY, CIVIL OR CRIMINAL, WHICH MAY BE AVAILABLE
FOR THE VINDICATION OR ENFORCEMENT OF SUCH RIGHT." 

/2/  SEE, E.G., UNITED STATES V. CLASSIC, 313 U.S. 299 (THE RIGHT TO
VOTE); UNITED STATES V. GUEST, 383 U.S. 745 (RIGHT TO TRAVEL); UNITED
STATES V. WADDELL, 112 U.S. 76 (THE RIGHT TO PERFECT A HOMESTEAD);
LOGAN V. UNITED STATES, 144 U.S. 263 (THE RIGHT TO BE FREE OF VIOLENCE
WHILE IN THE CUSTODY OF A FEDERAL MARSHAL); UNITED STATES V. MASON, 213
U.S. 115 (THE RIGHT OF FEDERAL OFFICERS TO PERFORM THEIR DUTIES);
UNITED STATES V. PRICE, 383 U.S. 787 (FOURTEENTH AMENDMENT RIGHTS). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

I REGRET THAT I CANNOT JOIN THE OPINION OF THE COURT.  THERE IS, OF
COURSE, NO QUESTION OF THE REPREHENSIBILITY OF THE APPELLEES' ALLEGED
CONDUCT.  BUT THE ISSUE IS WHETHER CONGRESS HAS SUBJECTED THIS CONDUCT
TO FEDERAL CRIMINAL PROSECUTION. 

243, SECURES THE RIGHT TO EQUAL ENJOYMENT OF PLACES OF PUBLIC
ACCOMMODATION.  SECTION 203 PROHIBITS INTERFERENCE WITH THAT RIGHT IN
ANY OF THREE WAYS: 

"NO PERSON SHALL (A) WITHHOLD, DENY, OR ATTEMPT TO WITHHOLD OR DENY,
OR DEPRIVE OR ATTEMPT TO DEPRIVE, ANY PERSON OF ANY RIGHT OR PRIVILEGE
SECURED BY SECTION 201 OR 202, OR (B) INTIMIDATE, THREATEN, OR COERCE,
OR ATTEMPT TO INTIMIDATE, THREATEN, OR COERCE ANY PERSON WITH THE
PURPOSE OF INTERFERING WITH ANY RIGHT OR PRIVILEGE SECURED BY SECTION
201 OR 202 OR (C) PUNISH OR ATTEMPT TO PUNISH ANY PERSON FOR EXERCISING
OR ATTEMPTING TO EXERCISE ANY RIGHT OR PRIVILEGE SECURED BY SECTION 201
OR 202." 

OF SEC. 203.  SECTION 206 PROVIDES FOR INJUNCTIVE ACTIONS BY THE
ATTORNEY GENERAL AGAINST PATTERNS OR PRACTICES OF RESISTANCE TO
ENJOYMENT OF TITLE II RIGHTS.  FINALLY SEC. 207(B) STATES: 

"THE REMEDIES PROVIDED IN THIS TITLE SHALL BE THE EXCLUSIVE MEANS OF
ENFORCING THE RIGHTS BASED ON THIS TITLE.  . . . "  /1/ 

THE PLAIN LANGUAGE OF THE EXCLUSIVE REMEDIES CLAUSE OF SEC. 207 THUS
CLEARLY PRECLUDES A CRIMINAL PROSECUTION FOR INTERFERING WITH RIGHTS
SECURED BY TITLE II.  /2/  AND THE VERY LEGISLATIVE HISTORY CITED BY
THE COURT LEAVES NO DOUBT THAT A SPECIFIC PURPOSE OF THAT CLAUSE WAS TO
PREVENT CRIMINAL PROSECUTIONS UNDER 18 U.S.C. 241.  IT WAS UPON THAT
UNDERSTANDING THAT CONGRESS ENACTED THE LEGISLATION. 

THE COURT'S EFFORT TO DISTINGUISH BETWEEN REFUSAL OF SERVICE BY A
PROPRIETOR AND VIOLENT INTERFERENCE BY THIRD PARTIES IS NOT ONLY
WITHOUT ANY SUPPORT IN THE LANGUAGE OF SEC. 207 BUT ALSO IS BELIED BY
SEC. 203 OF THE TITLE, QUOTED ABOVE.  THAT SECTION CLEARLY PROHIBITS
INTIMIDATION AND COERCION BY THIRD PERSONS AS WELL AS REFUSAL OF
SERVICE BY A PROPRIETOR.  CONGRESS, THEREFORE, WAS EXPLICITLY AWARE OF
THE KIND OF CONDUCT ALLEGED IN THIS CASE WHEN IT ENACTED TITLE II, AND
CONGRESS PROVIDED IN SEC. 207 THAT THE EXCLUSIVE REMEDY TO PROHIBIT
SUCH CONDUCT MUST BE BY INJUNCTION. 

THE EXCLUSIVE REMEDIES PROVIDED BY CONGRESS TO PROTECT THE RIGHTS
SECURED BY TITLE II OF THE 1964 ACT ARE UNDOUBTEDLY INEFFECTIVE IN A
CASE LIKE THIS.  BUT I CANNOT, FOR THAT REASON, JOIN IN REWRITING THE
LAW THAT CONGRESS SO CLEARLY ENACTED. 

I RESPECTFULLY DISSENT. 

/1/  SECTION 207 CONTAINS A PROVISO; BUT THE UNITED STATES, WHICH
BROUGHT THIS PROSECUTION, IS CONSPICUOUSLY ABSENT FROM THE LIST OF
THOSE TO WHOM THE PROVISO APPLIES: 

"(NOTHING IN THIS TITLE SHALL PRECLUDE ANY INDIVIDUAL OR ANY STATE
OR LOCAL AGENCY FROM ASSERTING ANY RIGHT BASED ON ANY OTHER FEDERAL OR
STATE LAW NOT INCONSISTENT WITH THIS TITLE, INCLUDING ANY STATUTE OR
ORDINANCE REQUIRING NONDISCRIMINATION IN PUBLIC ESTABLISHMENTS OR
ACCOMMODATIONS, OR FROM PURSUING ANY REMEDY, CIVIL OR CRIMINAL, WHICH
MAY BE AVAILABLE FOR THE VINDICATION OR ENFORCEMENT OF SUCH RIGHT." 

/2/  THE INDICTMENT DID NOT ALLEGE INJURY TO ANY RIGHTS OTHER THAN
THOSE ESTABLISHED BY TITLE II OF THE CIVIL RIGHTS ACT OF 1964. 

RALPH S. SPRITZER ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD AND ASSISTANT ATTORNEY GENERAL
DOAR. 

ROBERT B. THOMPSON, BY APPOINTMENT OF THE COURT, POST, P. 917,
ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WAS REUBEN A.
GARLAND. 
..END :























UNITED STATES V. JACKSON, 390 U.S. 570 


       UNITED STATES V. JACKSON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF CONNECTICUT. 

        NO. 85.  ARGUED DECEMBER 7, 1967.-- DECIDED APRIL 8, 1968. 


THE FEDERAL KIDNAPPING ACT PROVIDES THAT INTERSTATE KIDNAPERS "SHALL
BE PUNISHED (1) BY DEATH IF THE KIDNAPED PERSON HAS NOT BEEN LIBERATED
UNHARMED, AND IF THE VERDICT OF THE JURY SHALL SO RECOMMEND, OR (2) BY
IMPRISONMENT FOR ANY TERM OF YEARS OR FOR LIFE, IF THE DEATH PENALTY IS
NOT IMPOSED."  THE DISTRICT COURT DISMISSED THE COUNT OF AN INDICTMENT
CHARGING APPELLEES WITH VIOLATING THE ACT BECAUSE IT MAKES "THE RISK OF
DEATH" THE PRICE FOR ASSERTING THE RIGHT TO TRIAL BY JURY AND THUS
"IMPAIRS . . . FREE EXERCISE" OF THAT CONSTITUTIONAL RIGHT.  THE
GOVERNMENT APPEALED DIRECTLY TO THIS COURT.  HELD:  THE DEATH PENALTY
CLAUSE IMPOSES AN IMPERMISSIBLE BURDEN UPON THE EXERCISE OF A
CONSTITUTIONAL RIGHT, BUT THAT PROVISION IS SEVERABLE FROM THE
REMAINDER OF THE ACT AND THE UNCONSTITUTIONALITY OF THAT CLAUSE DOES
NOT REQUIRE THE DEFEAT OF THE ACT AS A WHOLE.  PP. 572-591. 

262 F.SUPP.  716, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL KIDNAPPING ACT, 18 U.S.C. 1201(A), PROVIDES: 

"WHOEVER KNOWINGLY TRANSPORTS IN INTERSTATE . . . COMMERCE, ANY PERSON
WHO HAS BEEN UNLAWFULLY . . . KIDNAPED . . . AND HELD FOR RANSOM . . .
OR OTHERWISE . . . SHALL BE PUNISHED (1) BY DEATH IF THE KIDNAPED
PERSON HAS NOT BEEN LIBERATED UNHARMED, AND IF THE VERDICT OF THE JURY
SHALL SO RECOMMEND, OR (2) BY IMPRISONMENT FOR ANY TERM OF YEARS OR FOR
LIFE, IF THE DEATH PENALTY IS NOT IMPOSED."  THIS STATUTE THUS CREATES
AN OFFENSE PUNISHABLE BY DEATH "IF THE VERDICT OF THE JURY SHALL SO
RECOMMEND."  THE STATUTE SETS FORTH NO PROCEDURE FOR IMPOSING THE DEATH
PENALTY UPON A DEFENDANT WHO WAIVES THE RIGHT TO JURY TRIAL OR UPON ONE
WHO PLEADS GUILTY. 

ON OCTOBER 10, 1966, A FEDERAL GRAND JURY IN CONNECTICUT RETURNED AN
INDICTMENT CHARGING IN COUNT ONE THAT THREE NAMED DEFENDANTS, THE
APPELLEES IN THIS CASE, HAD TRANSPORTED FROM CONNECTICUT TO NEW JERSEY
A PERSON WHO HAD BEEN KIDNAPED AND HELD FOR RANSOM, AND WHO HAD BEEN
HARMED WHEN LIBERATED.  /1/  THE DISTRICT COURT DISMISSED THIS COUNT OF
THE INDICTMENT, /2/  HOLDING THE FEDERAL KIDNPAING ACT UNCONSTITUTIONAL
BECAUSE IT MAKES "THE RISK OF DEATH" THE PRICE FOR ASSERTING THE RIGHT
TO JURY TRIAL, AND THEREBY "IMPAIRS . . . FREE EXERCISE" OF THAT
CONSTITUTIONAL RIGHT.  /3/  THE GOVERNMENT APPEALED DIRECTLY TO THIS
COURT, /4/  AND WE NOTED PROBABLE JURISDICTION.  /5/  WE REVERSE. 

WE AGREE WITH THE DISTRICT COURT THAT THE DEATH PENALTY PROVISION OF
THE FEDERAL KIDNAPING ACT IMPOSES AN IMPERMISSIBLE BURDEN UPON THE
EXERCISE OF A CONSTITUTIONAL RIGHT, BUT WE THINK THAT PROVISION IS
SEVERABLE FROM THE REMAINDER OF THE STATUTE.  THERE IS NO REASON TO
INVALIDATE THE LAW IN ITS ENTIRELY SIMPLY BECAUSE ITS CAPITAL
PUNISHMENT CLAUSE VIOLATES THE CONSTITUTION.  THE DISTRICT COURT
THEREFORE ERRED IN DISMISSING THE KIDNAPING COUNT OF THE INDICTMENT. 

    I. 

ONE FACT AT LEAST IS OBVIOUS FROM THE FACE OF THE STATUTE ITSELF:
IN AN INTERSTATE KIDNAPING CASE WHERE THE VICTIM HAS NOT BEEN LIBERATED
UNHARMED, THE DEFENDANT'S ASSERTION OF THE RIGHT TO JURY TRIAL MAY COST
HIM HIS LIFE, FOR THE FEDERAL STATUTE AUTHORIZES THE JURY-- AND ONLY TO
JURY-- TO RETURN A VERDICT OF DEATH.  THE GOVERNMENT DOES NOT DISPUTE
THIS PROPOSITION.  WHAT IT DISPUTES IS THE CONCLUSION THAT THE STATUTE
THEREBY SUBJECTS THE DEFENDANT WHO SEEKS A JURY TRIAL TO AN INCREASED
HAZARD OF CAPITAL PUNISHMENT.  AS THE GOVERNMENT CONSTRUES THE STATUTE,
A DEFENDANT WHO ELECTS TO BE TRIED BY A JURY CANNOT BE PUT TO DEATH
EVEN IF THE JURY SO RECOMMENDS-- UNLESS THE TRIAL JUDGE AGREES THAT
CAPITAL PUNISHMENT SHOULD BE IMPOSED.  MOREOVER, THE ARGUMENT GOES, A
DEFENDANT CANNOT AVOID THE RISK OF DEATH BY ATTEMPTING TO PLEAD GUILTY
OR WAIVE JURY TRIAL.  FOR EVEN IF THE TRIAL JUDGE ACCEPTS A GUILTY PLEA
OR APPROVES A JURY WAIVER, THE JUDGE REMAINS FREE, IN THE GOVERNMENT'S
VIEW OF THE STATUTE, TO CONVENE A SPECIAL JURY FOR THE LIMITED PURPOSE
OF DECIDING WHETHER TO RECOMMEND THE DEATH PENALTY.  THE GOVERNMENT
THUS CONTENDS THAT, WHETHER OR NOT THE DEFENDANT CHOOSES TO SUBMIT TO A
JURY THE QUESTION OF HIS GUILT, THE DEATH PENALTY MAY BE IMPOSED IF AND
ONLY IF BOTH JUDGE AND JURY CONCUR IN ITS IMPOSITION.  ON THIS
UNDERSTANDING OF THE STATUE, THE GOVERNMENT CONCLUDES THAT THE DEATH
PENALTY PROVISION OF THE KIDNAPING ACT DOES NOT OPERATE TO PENALIZE THE
DEFENDANT WHO CHOOSES TO CONTEST HIS GUILT BEFORE A JURY.  IT IS
UNNECESSARY TO DECIDE HERE WHETHER THIS CONCLUSION WOULD FOLLOW FROM
THE STATUTORY SCHEME THE GOVERNMENT ENVISIONS, /6/  FOR IT IS NOT IN
FACT THE SCHEME THAT CONGRESS ENACTED. 

AT THE OUTSET, WE REJECT THE GOVERNMENT'S ARGUMENT THAT THE FEDERAL
KIDNAPING ACT GIVES THE TRIAL JUDGE DISCRETION TO SET ASIDE A JURY
RECOMMENDATION OF DEATH.  SO FAR AS WE ARE AWARE, NOT ONCE IN THE
ENTIRE 34-YEAR HISTORY OF THE ACT HAS A JURY'S RECOMMENDATION OF DEATH
BEEN DISCARDED BY A TRIAL JUDGE.  /7/  THE GOVERNMENT WOULD APPARENTLY
HAVE US ASSUME EITHER THAT TRIAL JUDGES HAVE ALWAYS AGREED WITH JURY
RECOMMENDATIONS OF CAPITAL PUNISHMENT UNDER THE STATUTE-- AN
UNREALISTIC ASSUMPTION AT BEST /8/  -- OR THAT THEY HAVE ABDICATED
THEIR STATUTORY DUTY TO EXERCISE INDEPENDENT JUDGMENT ON THE ISSUE OF
PENALTY.  IN FACT, THE EXPLANATION IS A FAR SIMPLER ONE.  THE STATUTE
UNEQUIVOCALLY STATES THAT, "IF THE VERDICT OF THE JURY SHALL SO
RECOMMEND," THE DEFENDANT "SHALL BE PUNISHED . . . BY DEATH.  . . . "
THE WORD IS "SHALL," NOT "MAY."  /9/  IN ACCEDING WITHOUT EXCEPTION TO
JURY RECOMMENDATIONS OF DEATH, TRIAL JUDGES HAVE SIMPLY CARRIED OUT THE
MANDATE OF THE STATUTE. 

THE GOVERNMENT NONETHELESS URGES THAT WE OVERLOOK CONGRESS' CHOICE
OF THE IMPERATIVE.  WHATEVER MIGHT HAVE BEEN ASSUMED IN THE PAST, WE
ARE NOW ASKED TO CONSTRUE THE STATUTE SO AS TO ELIMINATE THE JURY'S
POWER TO FIX THE DEATH PENALTY WITHOUT THE APPROVAL OF THE PRESIDING
JUDGE.  "(THIS READING," IT IS SAID, WOULD CONFORM "TO THE LONG
TRADITION THAT MAKES THE TRIAL JUDGE IN THE FEDERAL COURTS THE ARBITER
OF THE SENTENCE."  AND SO IT WOULD.  THE DIFFICULTY IS THAT CONGRESS
INTENTIONALLY DISCARDED THAT TRADITION WHEN IT PASSED THE FEDERAL
KIDNAPING ACT.  OVER THE FORCEFULLY ARTICULATED OBJECTION THAT JURY
SENTENCING WOULD REPRESENT AN UNWARRANTED DEPARTURE FROM SETTLED
FEDERAL PRACTICE, /10/  CONGRESS REJECTED A VERSION OF THE KIDNAPING
ACT THAT WOULD HAVE LEFT PUNISHMENT TO THE COURT'S DISCRETION /11/  AND
INSTEAD CHOSE AN ALTERNATIVE THAT SHIFTED FROM A SINGLE JUDGE TO A JURY
OF 12 TO ONUS OF INFLICTING THE PENALTY OF DEATH.  /12/  TO ACCEPT THE
GOVERNMENT'S SUGGESTION THAT THE JURY'S SENTENCING ROLE BE TREATED AS
MERELY ADVISORY WOULD RETURN TO THE JUDGE THE ULTIMATE DUTY THAT
CONGRESS DELIBERATELY PLACED IN OTHER HANDS. 

THE THRUST OF THE CLAUSE IN QUESTION WAS CLEARLY EXPRESSED BY THE
HOUSE JUDICIARY COMMITTEE THAT DRAFTED IT:  ITS PURPOSE WAS, QUITE
SIMPLY, "TO PERMIT THE JURY TO DESIGNATE A DEATH PENALTY FOR THE
KIDNAPER."  /13/  THE FACT THAT CONGRESS CHOSE THE WORD "RECOMMEND" TO
DESCRIBE WHAT THE JURY WOULD DO IN DESIGNATING PUNISHMENT CANNOT
OBSCURE THE BASIC CONGRESSIONAL OBJECTIVE OF MAKING THE JURY RATHER
THAN THE JUDGE THE ARBITER OF THE DEATH SENTENCE.  THE GOVERNMENT'S
CONTRARY CONTENTION CANNOT STAND. 

EQUALLY UNTENABLE IS THE GOVERNMENT'S ARGUMENT THAT THE KIDNAPING
ACT AUTHORIZES A PROCEDURE UNIQUE IN THE FEDERAL SYSTEM-- THAT OF
CONVENING A SPECIAL JURY, WITHOUT THE DEFENDANT'S CONSENT, FOR THE SOLE
PURPOSE OF DECIDING WHETHER HE SHOULD BE PUT TO DEATH.  WE ARE TOLD
INITIALLY THAT THE FEDERAL KIDNAPING ACT AUTHORIZES THIS PROCEDURE BY
IMPLICATION.  THE GOVERNMENT'S REASONING RUNS AS FOLLOWS:  THE
KIDNAPING ACT PERMITS THE INFLICTION OF CAPITAL PUNISHMENT WHENEVER A
JURY SO RECOMMENDS.  THE ACT DOES NOT STATE IN SO MANY WORDS THAT THE
JURY RECOMMENDING CAPITAL PUNISHMENT MUST BE A JURY IMPANELED TO
DETERMINE GUILT AS WELL.  THEREFORE THE ACT AUTHORIZES INFLICTION OF
THE DEATH PENALTY ON THE RECOMMENDATION OF A JURY SPECIALLY CONVENED TO
DETERMINE PUNISHMENT.  THE GOVERNMENT FINDS SUPPORT FOR THIS ANALYSIS
IN A SEVENTH CIRCUIT DECISION CONSTRUING THE FEDERAL KIDNAPING ACT TO
MEAN THAT THE DEATH PENALTY MAY BE IMPOSED WHENEVER "AN AFFIRMATIVE
RECOMMENDATION (IS) MADE BY A JURY," INCLUDING A JURY CONVENED SOLELY
FOR THAT PURPOSE AFTER THE COURT HAS ACCEPTED A GUILTY PLEA.  SEADLUND
V. UNITED STATES, 97 F.2D 742, 748, ACCORD, ROBINSON V. UNITED STATES,
264 F.SUPP.  146, 153.  BUT THE STATUTE DOES NOT SAY "A JURY."  IT SAYS
"THE JURY."  AT LEAST WHEN THE DEFENDANT DEMANDS TRIAL BY JURY ON THE
ISSUE OF GUILT, THE GOVERNMENT CONCEDES THAT "THE VERDICT OF THE JURY
MEANS WHAT THOSE WORDS NATURALLY SUGGEST:  THE GENERAL VERDICT OF
CONVICTION OR ACQUITTAL RETURNED BY THE JURY THAT PASSES UPON GUILT OR
INNOCENCE.  THUS, WHEN SUCH A JURY HAS BEEN CONVENED, THE STATUTORY
REFERENCE IS TO THAT JURY ALONE, NOT TO A JURY IMPANELED AFTER
CONVICTION FOR THE LIMITED PURPOSE OF DETERMINING PUNISHMENT.  /14/
YET THE GOVERNMENT ARGUES THAT, WHEN THE ISSUE OF GUILT HAS BEEN TRIED
TO A JUDGE OR HAS BEEN ELIMINATED ALTOGETHER BY A PLEA OF GUILT, "THE
VERDICT OF THE JURY" AT ONCE ASSUMES A COMPLETELY NEW MEANING.  IN SUCH
A CASE, IT IS SAID, "THE VERDICT OF THE JURY" MEANS THE RECOMMENDATION
OF A JURY CONVENED FOR THE SOLE PURPOSE OF DECIDING WHETHER THE ACCUSED
SHOULD LIVE OR DIE. 

THE GOVERNMENT WOULD HAVE US GIVE THE STATUTE THIS STRANGELY
BIFURCATED MEANING WITHOUT THE SLIGHTEST INDICATION THAT CONGRESS
CONTEMPLATED ANY SUCH SCHEME.  NOT A WORD IN THE LEGISLATIVE HISTORY SO
MUCH AS HINTS THAT A CONVICTION ON A PLEA OF GUILTY OR A CONVICTION BY
A COURT SITTING WITHOUT A JURY MIGHT BE FOLLOWED BY A SEPARATE
SENTENCING PROCEEDINGS BEFORE A PENALTY JURY.  IF THE POWER TO IMPANEL
SUCH A JURY HAD BEEN RECOGNIZED ELSEWHERE IN THE FEDERAL SYSTEM WHEN
CONGRESS ENACTED THE FEDERAL KIDNAPING ACT, PERHAPS CONGRESS' TOTAL
SILENCE ON THE SUBJECT COULD BE VIEWED AS A TACIT INCORPORATION OF THIS
SENTENCING PRACTICE INTO THE NEW LAW.  BUT THE BACKGROUND AGAINST WHICH
CONGRESS LEGISLATED WAS BARREN OF ANY PRECEDENT FOR THE SORT OF
SENTENCING PROCEDURE WE ARE TOLD CONGRESS IMPLIEDLY AUTHORIZED. 

THE GOVERNMENT NONETHELESS MAINTAINS THAT CONGRESS' FAILURE TO
PROVIDE FOR THE INFLICTION OF THE DEATH PENALTY UPON THOSE WHO PLEAD
GUILTY OR WAIVE JURY TRIAL WAS NO MORE THAN AN OVERSIGHT THAT THE
COURTS CAN AND SHOULD CORRECT.  AT LEAST TWICE, CONGRESS HAS EXPRESSLY
AUTHORIZED THE INFLICTION OF CAPITAL PUNISHMENT UPON DEFENDANTS
CONVICTED WITHOUT A JURY, /15/  BUT EVEN ON THE ASSUMPTION THAT THE
FAILURE OF CONGRESS TO DO SO HERE WAS WHOLLY INADVERTENT, IT WOULD
HARDLY BE THE PROVINCE OF THE COURTS TO FASHION A REMEDY.  ANY ATTEMPT
TO DO SO WOULD BE FRAUGHT WITH THE GRAVEST DIFFICULTIES:  IF A SPECIAL
JURY WERE CONVENED TO RECOMMEND A SENTENCE, HOW WOULD THE PENALTY
HEARING PROCEED?  WHAT WOULD EACH SIDE BE REQUIRED TO SHOW?  WHAT
STANDARD OF PROOF WOULD GOVERN?  TO WHAT EXTENT WOULD CONVENTIONAL
RULES OF EVIDENCE BE ABROGATED?  WHAT PRIVILEGES WOULD THE ACCUSED
ENJOY?  CONGRESS, UNLIKE THE STATE LEGISLATURES THAT HAVE AUTHORIZED
JURY PROCEEDINGS TO DETERMINE THE PENALTY IN CAPITAL CASES, /16/  HAS
ADDRESSED ITSELF TO NONE OF THESE QUESTIONS.  /17/

IT IS ONE THING TO FILL A MINOR GAP IN A STATUTE-- TO EXTRAPOLATE
FROM ITS GENERAL DESIGN DETAILS THAT WERE INADVERTENTLY OMITTED.  IT IS
QUITE ANOTHER THING TO CREATE FROM WHOLE CLOTH A COMPLEX AND COMPLETELY
NOVEL PROCEDURE AND TO THRUST IT UPON UNWILLING DEFENDANTS FOR THE SOLE
PURPOSE OF RESCUING A STATUTE FROM A CHARGE OF UNCONSTITUTIONALITY.  WE
RECOGNIZE THAT TRIAL JUDGES SITTING IN FEDERAL KIDNAPING CASES HAVE ON
OCCASION CHOSEN THE LATTER COURSE, ATTEMPTING TO FASHION ON AN AD HOC
BASIS THE GROUND RULES FOR PENALTY PROCEEDINGS BEFORE A JURY.  /18/  WE
DO NOT KNOW WHAT KINDS OF RULES PARTICULAR FEDERAL JUDGES HAVE ADOPTED,
HOW WIDELY SUCH RULES HAVE VARIED, OR HOW FAIRLY THEY HAVE BEEN
APPLIED.  BUT ONE THING AT LEAST IS CLEAR:  INDIVIDUALS FORCED TO
DEFEND THEIR LIVES IN PROCEEDINGS TAILOR-MADE FOR THE OCCASION MUST DO
SO WITHOUT THE GUIDANCE THAT DEFENDANTS ORDINARILY FIND IN A BODY OF
PROCEDURAL AND EVIDENTIARY RULES SPELLED OUT IN ADVANCE OF TRIAL.  /19/
THE GOVERNMENT NOTES WITH APPROVAL "THE DECISIONAL TREND WHICH HAS
SOUGHT . . . TO PLACE THE MOST HUMANE CONSTRUCTION ON CAPITAL
LEGISLATION."  YET IT ASKS US TO EXTEND THE CAPITAL PUNISHMENT
PROVISION OF THE FEDERAL KIDNAPING ACT IN A NEW AND UNCHARTED
DIRECTION, WITHOUT THE COMPULSION OF A LEGISLATIVE MANDATE AND WITHOUT
THE BENEFIT OF LEGISLATIVE GUIDANCE.  THAT WE DECLINE TO DO.

        II. 

UNDER THE FEDERAL KIDNAPING ACT, THEREFORE, THE DEFENDANT WHO
ABANDONS THE RIGHT TO CONTEST HIS GUILT BEFORE A JURY IS ASSURED THAT
HE CANNOT BE EXECUTED; THE DEFENDANT INGENUOUS ENOUGH TO SEEK A JURY
ACQUITTAL STANDS FOREWARNED THAT, IF THE JURY FINDS HIM GUILTY AND DOES
NOT WISH TO SPARE HIS LIFE, HE WILL DIE.  OUR PROBLEM IS TO DECIDE
WHETHER THE CONSTITUTION PERMITS THE ESTABLISHMENT OF SUCH A DEATH
PENALTY, APPLICABLE ONLY TO THOSE DEFENDANTS WHO ASSERT THE RIGHT TO
CONTEST THEIR GUILT BEFORE A JURY.  THE INEVITABLE EFFECT OF ANY SUCH
PROVISION IS, OF COURSE, TO DISCOURAGE ASSERTION OF THE FIFTH AMENDMENT
RIGHT NOT TO PLEAD GUILTY /20/  AND TO DETER EXERCISE OF THE SIXTH
AMENDMENT RIGHT TO DEMAND A JURY TRIAL.  IF THE PROVISION HAD NO OTHER
PURPOSE OR EFFECT THAN TO CHILL THE ASSERTION OF CONSTITUTIONAL RIGHTS
BY PENALIZING THOSE WHO CHOOSE TO EXERCISE THEM, THEN IT WOULD BE
PATENTLY UNCONSTITUTIONAL.  BUT, AS THE GOVERNMENT NOTES, LIMITING THE
DEATH PENALTY TO CASES WHERE THE JURY RECOMMENDS ITS IMPOSITION DOES
HAVE ANOTHER OBJECTIVE:  IT AVOIDS THE MORE DRASTIC ALTERNATIVE OF
MANDATORY CAPITAL PUNISHMENT IN EVERY CASE.  IN THIS SENSE, THE
SELECTIVE DEATH PENALTY PROCEDURE ESTABLISHED BY THE FEDERAL KIDNAPING
ACT MAY BE VIEWED AS AMELIORATING THE SEVERITY OF THE MORE EXTREME
PUNISHMENT THAT CONGRESS MIGHT HAVE WISHED TO PROVIDE.  /21/ 

THE GOVERNMENT SUGGESTS THAT, BECAUSE THE ACT THUS OPERATES "TO
MITIGATE THE SEVERITY OF PUNISHMENT," IT IS IRRELEVANT THAT IT "MAY
HAVE THE INCIDENTAL EFFECT OF INDUCING DEFENDANTS NOT TO CONTEST IN
FULL MEASURE."  /22/  WE CANNOT AGREE.  WHATEVER MIGHT BE SAID OF
CONGRESS' OBJECTIVES, THEY CANNOT BE PURSUED BY MEANS THAT NEEDLESSLY
CHILL THE EXERCISE OF BASIC CONSTITUTIONAL RIGHTS.  CF. UNITED STATES
V. ROBEL, 389 U.S. 258; SHELTON V. TUCKER, 364 U.S. 479, 488-489.  THE
QUESTION IS NOT WHETHER THE CHILLING EFFECT IS "INCIDENTAL" RATHER THAN
INTENTIONAL; THE QUESTION IS WHETHER THAT EFFECT IS UNNECESSARY AND
THEREFORE EXCESSIVE.  IN THIS CASE THE ANSWER TO THAT QUESTION IS
CLEAR.  THE CONGRESS CAN OF COURSE MITIGATE THE SEVERITY OF CAPITAL
PUNISHMENT.  THE GOAL OF LIMITING THE DEATH PENALTY TO CASES IN WHICH A
JURY RECOMMENDS IT IS AN ENTIRELY LEGITIMATE ONE.  BUT THAT GOAL CAN BE
ACHIEVED WITHOUT PENALIZING THOSE DEFENDANTS WHO PLEAD NOT GUILTY AND
DEMAND JURY TRIAL.  IN SOME STATES, FOR EXAMPLE, THE CHOICE BETWEEN
LIFE IMPRISONMENT AND CAPITAL PUNISHMENT IS LEFT TO A JURY IN EVERY
CASE-- REGARDLESS OF HOW THE DEFENDANT'S GUILT HAS BEEN DETERMINED. 
/23/  GIVEN THE AVAILABILITY OF THIS AND OTHER ALTERNATIVES, IT IS
CLEAR THAT THE SELECTIVE DEATH PENALTY PROVISION OF THE FEDERAL
KIDNAPING ACT CANNOT BE JUSTIFIED BY ITS OSTENSIBLE PURPOSE.  WHATEVER
THE POWER OF CONGRESS TO IMPOSE A DEATH PENALTY FOR VIOLATION OF THE
FEDERAL KIDNAPING ACT, CONGRESS CANNOT IMPOSE SUCH A PENALTY IN A
MANNER THAT NEEDLESSLY PENALIZES THE ASSERTION OF A CONSTITUTIONAL
RIGHT.  SEE GRIFFIN V. CALIFORNIA, 380 U.S. 609.  /24/ 

IT IS NO ANSWER TO URGE, AS DOES THE GOVERNMENT, THAT FEDERAL TRIAL
JUDGES MAY BE RELIED UPON TO REJECT COERCED PLEAS OF GUILTY AND
INVOLUNTARY WAIVERS OF JURY TRIAL.  FOR THE EVIL IN THE FEDERAL STATUTE
IS NOT THAT IT NECESSARILY COERCES GUILTY PLEAS AND JURY WAIVERS BUT
SIMPLY THAT IT NEEDLESSLY ENCOURAGES THEM.  A PROCEDURE NEED NOT BE
INHERENTLY COERCIVE IN ORDER THAT IT BE HELD TO IMPOSE AN IMPERMISSIBLE
BURDEN UPON THE ASSERTION OF A CONSTITUTIONAL RIGHT.  THUS THE FACT
THAT THE FEDERAL KIDNAPING ACT TENDS TO DISCOURAGE DEFENDANTS FROM
INSISTING UPON THEIR INNOCENCE AND DEMANDING TRIAL BY JURY HARDLY
IMPLIES THAT EVERY DEFENDANT WHO ENTERS A GUILTY PLEA TO A CHARGE UNDER
THE ACT DOES SO INVOLUNTARILY.  /25/ THE POWER TO REJECT COERCED GUILTY
PLEAS AND INVOLUNTARY JURY WAIVERS MIGHT ALLEVIATE, BUT IT CANNOT
TOTALLY ELIMINATE, THE CONSTITUTIONAL INFIRMITY IN THE CAPITAL
PUNISHMENT PROVISION OF THE FEDERAL KIDNAPING ACT. 

THE GOVERNMENT ALTERNATIVELY PROPOSES THAT THIS COURT, IN THE
EXERCISE OF ITS SUPERVISORY POWERS, SHOULD SIMPLY INSTRUCT FEDERAL
JUDGES SITTING IN KIDNAPING CASES TO REJECT ALL ATTEMPTS TO WAIVE JURY
TRIAL AND ALL EFFORTS TO PLEAD GUILTY, HOWEVER VOLUNTARY AND WELL
INFORMED SUCH ATTEMPTED WAIVERS AND PLEAS MIGHT BE.  IN THAT WAY, WE
COULD ASSURE THAT EVERY DEFENDANT CHARGED IN A FEDERAL COURT WITH
AGGRAVATED KIDNAPING WOULD FACE A POSSIBLE DEATH PENALTY, AND THAT NO
DEFENDANT TRIED UNDER THE FEDERAL STATUTE WOULD BE INDUCED TO FORGO A
CONSTITUTIONAL RIGHT.  BUT OF COURSE THE INEVITABLE CONSEQUENCE OF THIS
"SOLUTION" WOULD BE TO FORCE ALL DEFENDANTS TO SUBMIT TO TRIAL, HOWEVER
CLEAR THEIR GUILT AND HOWEVER STRONG THEIR DESIRE TO ACKNOWLEDGE IT IN
ORDER TO SPARE THEMSELVES AND THEIR FAMILIES THE SPECTACLE AND EXPENSE
OF PROTRACTED COURTROOM PROCEEDINGS.  IT IS TRUE THAT A DEFENDANT HAS
NO CONSTITUTIONAL RIGHT TO INSIST THAT HE BE TRIED BY A JUDGE RATHER
THAN A JURY, SINGER V. UNITED STATES, 380 U.S. 24, AND IT IS ALSO TRUE
"THAT A CRIMINAL DEFENDANT HAS (NO) ABSOLUTE RIGHT TO HAVE HIS GUILTY
PLEA ACCEPTED BY THE COURT."  LYNCH V. OVERHOLSER, 369 U.S. 705, 719. 
BUT THE FACT THAT JURY WAIVERS AND GUILTY PLEAS MAY OCCASIONALLY BE
REJECTED HARDLY IMPLIES THAT ALL DEFENDANTS MAY BE REQUIRED TO SUBMIT
TO A FULL-DRESS JURY TRIAL AS A MATTER OF COURSE.  QUITE APART FROM THE
CRUEL IMPACT OF SUCH A REQUIREMENT UPON THOSE DEFENDANTS WHO WOULD
GREATLY PREFER NOT TO CONTEST THEIR GUILT, IT IS CLEAR-- AS EVEN THE
GOVERNMENT RECOGNIZES-- THAT THE AUTOMATIC REJECTION OF ALL GUILTY
PLEAS "WOULD ROB THE CRIMINAL PROCESS OF MUCH OF ITS FLEXIBILITY."  AS
ONE FEDERAL COURT HAS OBSERVED:  /26/ 

     "THE POWER OF A COURT TO ACCEPT A PLEA OF GUILTY IS
TRADITIONAL

  AND FUNDAMENTAL.  ITS EXISTENCE IS NECESSARY FOR THE . . .

  PRACTICAL . . . ADMINISTRATION OF THE CRIMINAL LAW. 

  CONSEQUENTLY, IT SHOULD REQUIRE AN UNAMBIGUOUS EXPRESSION ON THE

  PART OF THE CONGRESS TO WITHHOLD THIS AUTHORITY IN SPECIFIED

CASES." 

IF ANY SUCH APPROACH SHOULD BE INAUGURATED IN THE ADMINISTRATION OF A
FEDERAL CRIMINAL STATUTE, WE CONCLUDE THAT THE IMPETUS MUST COME FROM
CONGRESS, NOT FROM THIS COURT.  THE CAPITAL PUNISHMENT PROVISION OF THE
FEDERAL KIDNAPING ACT CANNOT BE SAVED BY JUDICIAL RECONSTRUCTION. 

        III. 

THE REMAINING QUESTION IS WHETHER THE STATUTE AS A WHOLE MUST FALL
SIMPLY BECAUSE ITS DEATH PENALTY CLAUSE IS CONSTITUTIONALLY DEFICIENT. 
THE DISTRICT COURT EVIDENTLY ASSUMED THAT IT MUST, FOR THAT COURT
DISMISSED THE KIDNAPING INDICTMENT.  WE DISAGREE.  AS WE SAID IN
CHAMPLIN RFG.  CO. V. COMMISSION, 286 U.S. 210, 234: 

"THE UNCONSTITUTIONALITY OF A PART OF AN ACT DOES NOT NECESSARILY
DEFEAT . . . THE VALIDITY OF ITS REMAINING PROVISIONS.  UNLESS IT IS
EVIDENT THAT THE LEGISLATURE WOULD NOT HAVE ENACTED THOSE PROVISIONS
WHICH ARE WITHIN ITS POWER, INDEPENDENTLY OF THAT WHICH IS NOT, THE
INVALID PART MAY BE DROPPED IF WHAT IS LEFT IS FULLY OPERATIVE AS A
LAW."  /27/ UNDER THIS TEST, IT IS CLEAR THAT THE CLAUSE AUTHORIZING
CAPITAL PUNISHMENT IS SEVERABLE FROM THE REMAINDER OF THE KIDNAPING
STATUTE AND THAT THE UNCONSTITUIONALITY OF THAT CLAUSE DOES NOT REQUIRE
THE DEFEAT OF THE LAW AS A WHOLE.  SEE MCDOWELL V. UNITED STATES, 274
F.SUPP.  426, 429.  CF. SPILLERS V. STATE, . . . NEV. . . . , . . . ,
436 P.2D 18, 23-24. 

THE CLAUSE IN QUESTION IS A FUNCTIONALLY INDEPENDENT PART OF THE
FEDERAL KIDNAPING ACT.  ITS ELIMINATION IN NO WAY ALTERS THE
SUBSTANTIVE REACH OF THE STATUTE AND LEAVES COMPLETELY UNCHANGED ITS
BASIC OPERATION.  UNDER SUCH CIRCUMSTANCES, IT IS QUITE INCONCEIVABLE
THAT THE CONGRESS WHICH DECIDED TO AUTHORIZE CAPITAL PUNISHMENT IN
AGGRAVATED KIDNAPING CASES WOULD HAVE CHOSEN TO DISCARD THE ENTIRE
STATUTE IF INFORMED THAT IT COULD NOT INCLUDE THE DEATH PENALTY CLAUSE
NOW BEFORE US.  /28/ 

IN THIS CASE IT HAPPENS THAT HISTORY CONFIRMS WHAT COMMON SENSE
ALONE WOULD SUGGEST:  THE LAW AS ORIGINALLY ENACTED IN 1932 CONTAINED
NO CAPITAL PUNISHMENT PROVISION.  /29/  A MAJORITY OF THE HOUSE HAD
FAVORED THE DEATH PENALTY BUT HAD YIELDED TO OPPOSITION IN THE SENATE
AS A MATTER OF EXPEDIENCY.  /30/  ONLY ONE CONGRESSMAN HAD EXPRESSED
THE VIEW THAT THE LAW WOULD NOT BE WORTH ENACTING WITHOUT CAPITAL
PUNISHMENT.  /31/  THE MAJORITY OBVIOUSLY FELT OTHERWISE.  /32/  WHEN
THE DEATH PENALTY WAS ADDED IN 1934, THE STATUTE WAS LEFT SUBSTANTIALLY
UNCHANGED IN EVERY OTHER RESPECT.  /33/  THE BASIC PROBLEM THAT HAD
PROMPTED ENACTMENT OF THE LAW IN 1932-- THE DIFFICULTY OF RELYING UPON
STATE AND LOCAL AUTHORITIES TO INVESTIGATE AND PROSECUTE INTERSTATE
KIDNAPING /34/  -- HAD NOT VANISHED DURING THE INTERVENING TWO YEARS. 
IT IS THEREFORE CLEAR THAT CONGRESS WOULD HAVE MADE INTERSTATE
KIDNAPING A FEDERAL CRIME EVEN IF THE DEATH PENALTY PROVISION HAD BEEN
RULED OUT FROM THE BEGINNING.  IT WOULD BE DIFFICULT TO IMAGINE A MORE
COMPELLING CASE FOR SEVERABILITY. 

IN AN EFFORT TO SUGGEST THE CONTRARY, THE APPELLEES INSIST THAT THE
1934 AMENDMENT "DID NOT MERELY INCREASE THE PENALTIES FOR KIDNAPING; IT
CHANGED THE WHOLE THRUST OF THE ACT."  THEY NOTE THAT CONGRESS
DELIBERATELY LIMITED CAPITAL PUNISHMENT TO THOSE KIDNAPERS WHOSE
VICTIMS ARE NOT LIBERATED UNHARMED.  SUCH A DIFFERENTIAL PENALTY
PROVISION, THE APPELLEES ARGUE, IS NEEDED TO DISCOURAGE KIDNAPERS FROM
INJURING THOSE WHOM THEY ABDUCT.  /35/  THE APPELLEES CONTEND THAT,
WITHOUT ITS CAPITAL PUNISHMENT CLAUSE, THE FEDERAL KIDNAPING ACT WOULD
NOT DISTINGUISH "THE PENALTIES APPLICABLE TO THOSE WHO DO AND THOSE WHO
DO NOT HARM OR KILL THEIR VICTIMS."  STRESSING THE OBVIOUS
CONGRESSIONAL CONCERN FOR THE VICTIM'S SAFETY, THEY CONCLUDE THAT "IT
IS DOUBTFUL THAT CONGRESS WOULD INTEND FOR THE STATUE TO STAND ABSENT
SUCH A FEATURE."  THIS ARGUMENT IS WRONG AS A MATTER OF HISTORY, FOR
CONGRESS ENACTED THE STATUTE "ABSENT SUCH A FEATURE."  /36/  IT IS
WRONG AS A MATTER OF FACT, FOR THE LENGTH OF IMPRISONMENT IMPOSED UNDER
THE ACT CAN OBVIOUSLY BE MADE TO REFLECT THE KIDNAPER'S TREATMENT OF
HIS VICTIM.  AND IT IS WRONG AS A MATTER OF LOGIC, FOR NOTHING COULD
MORE COMPLETELY OBLITERATE THE DISTINCTION BETWEEN "THE PENALTIES
APPLICABLE TO THOSE WHO DO AND THOSE WHO DO NOT HARM OR KILL THEIR
VICTIMS" THAN THE TOTAL INVALIDATION OF ALL THE PENALTIES PROVIDED BY
THE FEDERAL KIDNAPING ACT-- THE PRECISE RESULT SOUGHT BY THE
APPELLEES. 

THUS THE INFIRMITY OF THE DEATH PENALTY CLAUSE DOES NOT REQUIRE THE
TOTAL FRUSTRATION OF CONGRESS' BASIC PURPOSE-- THAT OF MAKING
INTERSTATE KIDNAPING A FEDERAL CRIME.  BY HOLDING THE DEATH PENALTY
CLAUSE OF THE FEDERAL KIDNAPING ACT UNENFORCEABLE, WE LEAVE THE STATUTE
AN OPERATIVE WHOLE, FREE OF ANY CONSTITUTIONAL OBJECTION.  THE
APPELLEES MAY BE PROSECUTED FOR VIOLATING THE ACT, BUT THEY CANNOT BE
PUT TO DEATH UNDER ITS AUTHORITY. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

          IT IS SO ORDERED. 

/1/  COUNT ONE: 

"ON OR ABOUT SEPTEMBER 2, 1966, CHARLES JACKSON, ALSO KNOWN AS
'BATMAN,' ALSO KNOWN AS 'BUTCH'; AND GLENN WALTER ALEXANDER DE LA
MOTTE; AND JOHN ALBERT WALSH, JR., THE DEFENDANTS HEREIN, DID KNOWINGLY
TRANSPORT IN INTERSTATE COMMERCE FROM MILFORD IN THE DISTRICT OF
CONNECTICUT TO ALPINE, NEW JERSEY, ONE JOHN JOSEPH GRANT, III, A PERSON
WHO HAD THERETOFORE BEEN UNLAWFULLY SEIZED, KIDNAPPED, CARRIED AWAY AND
HELD BY THE DEFENDANTS HEREIN, FOR RANSOM AND REWARD AND FOR THE
PURPOSE OF AIDING THE SAID DEFENDANTS TO ESCAPE ARREST, AND THE SAID
JOHN JOSEPH GRANT, III, WAS HARMED WHEN LIBERATED, IN VIOLATION OF
TITLE 18, U.S.C.  SECTION 1201(A)." 

/2/  COUNT TWO, CHARGING TRANSPORTATION OF A STOLEN MOTOR VEHICLE
FROM CONNECTICUT TO NEW YORK IN VIOLATION OF 18 U.S.C. 2312, HAS NOT
BEEN CHALLENGED AND IS NOT NOW BEFORE US. 

/3/  262 F.SUPP.  716, 718. 

/4/  18 U.S.C. 3731. 

/5/  387 U.S. 929. 

/6/  EVEN IF THE GOVERNMENT'S INTERPRETATION WERE SOUND, THE
VALIDITY OF ITS CONCLUSION WOULD STILL BE FAR FROM CLEAR.  AS THE
DISTRICT COURT OBSERVED, "EVEN IF THE TRIAL COURT HAS THE POWER TO
SUBMIT THE ISSUE OF PUNISHMENT TO A JURY, THAT POWER IS DISCRETIONARY,
ITS EXERCISE UNCERTAIN."  262 F.SUPP.  716, 717-718.  THE GOVERNMENT
ASSUMES THAT A JUDGE WHO WOULD ACCEPT THE DEATH PENALTY RECOMMENDATION
APPENDED TO A JURY VERDICT OF GUILT IS A JUDGE WHO WOULD EXERCISE HIS
DISCRETIONARY POWER TO CONVENE A PENALTY JURY IF THE DEFENDANT WERE TO
PLEAD GUILTY OR SUBMIT TO A BENCH TRIAL.  BUT THE MERE FACT THAT A
JUDGE WOULD DEFER TO THE JURY'S RECOMMENDATION HARDLY IMPLIES THAT HE
WOULD TAKE THE EXTRAORDINARY STEP OF CONVENING A PENALTY JURY AFTER
ACCEPTING A PLEA OF GUILTY OR APPROVING A WAIVER OF JURY TRIAL.  EVEN
IF THE GOVERNMENT'S STATUTORY POSITION WERE CORRECT, THE FACT WOULD
REMAIN THAT THE DEFENDANT CONVICTED ON A GUILTY PLEA OR BY A JUDGE
COMPLETELY ESCAPES THE THREAT OF CAPITAL PUNISHMENT UNLESS THE TRIAL
JUDGE MAKES AN AFFIRMATIVE DECISION TO COMMENCE A PENALTY HEARING AND
TO IMPANEL A SPECIAL JURY FOR THAT PURPOSE, WHEREAS THE DEFENDANT
CONVICTED BY A JURY AUTOMATICALLY INCURS A RISK THAT THE SAME JURY WILL
RECOMMEND THE DEATH PENALTY AND THAT THE JUDGE WILL ACCEPT ITS
RECOMMENDATION. 

/7/  ONE DISTRICT JUDGE HAS INDICATED THAT HE WOULD NOT FEEL BOUND
BY A JURY RECOMMENDATION OF DEATH IN A KIDNAPING CASE, SEE ROBINSON V.
UNITED STATES, 264 F.SUPP.  146, 151-153, BUT THE QUESTION WAS NOT
DIRECTLY BEFORE HIM SINCE THE CASE INVOLVED A PETITION FOR POST
CONVICTION RELIEF.  ALTHOUGH FEDERAL JURIES HAVE RECOMMENDED CAPITAL
PUNISHMENT IN A NUMBER OF KIDNAPING CASES, COUNSEL FOR THE GOVERNMENT
STATED AT ORAL ARGUMENT IN THIS COURT THAT HE WAS AWARE OF NO CASE IN
WHICH SUCH A RECOMMENDATION HAD BEEN SET ASIDE. 

/8/  SEE H. KALVEN & H. ZEISEL, THE AMERICAN JURY 436-444 (1966). 

/9/ THE GOVERNMENT NOTES THAT THE WORD "SHALL" PRECEDES BOTH
ALTERNATIVE PUNISHMENTS:  THE OFFENDER "SHALL BE PUNISHED (1) BY DEATH
IF THE KIDNAPED PERSON HAS NOT BEEN LIBERATED UNHARMED, AND IF THE
VERDICT OF THE JURY SHALL SO RECOMMEND, (2) BY IMPRISONMENT.  . . . "
BUT THE NOTION THAT JUDICIAL DISCRETION IS THEREBY AUTHORIZED IS
DISPELLED BY THE QUALIFICATION ATTACHED TO THE SECOND ALTERNATIVE:  "BY
IMPRISONMENT . . . IF THE DEATH PENALTY IS NOT IMPOSED."  ALTHOUGH IT
IS TRUE THAT THE JUDGE RATHER THAN THE JURY IS FORMALLY RESPONSIBLE FOR
IMPOSING SENTENCE IN A FEDERAL CRIMINAL CASE, THOSE QUALIFYING WORDS
WOULD STATE A POINTLESS TRUISM UNLESS THEY WERE MEANT TO REFER TO THE
JURY'S RECOMMENDATION:  THE OFFENDER "SHALL BE PUNISHED (1) BY DEATH .
. . IF THE VERDICT OF THE JURY SHALL SO RECOMMEND, OR (2) BY
IMPRISONMENT" IF THE JURY'S VERDICT DOES NOT SO RECOMMEND.  TO ACCEPT
THE GOVERNMENT'S READING OF THE STATUTE WOULD MAKE ITS FINAL PHRASE A
COMPLETE REDUNDANCY, ANOMALOUS INDEED IN A STATUTE THAT CONGRESS HAS
TWICE PRUNED OF EXCESS VERBIAGE.  SEE REVISER'S NOTE FOLLOWING 18
U.S.C. 1201. 

NOTHING IN THE LANGUAGE OR HISTORY OF THE FEDERAL KIDNAPING ACT
POINTS TO ANY SUCH RESULT.  ON THE CONTRARY, AN EXAMINATION OF THE
DEATH PENALTY PROVISION IN ITS ORIGINAL FORM DEMONSTRATES THAT CONGRESS
COULD NOT HAVE INTENDED THE MEANING THE GOVERNMENT NOW SEEKS TO
ATTRIBUTE TO IT.  FOR THE STATUTE AS IT STOOD IN 1934 PROVIDED THAT THE
OFFENDER "SHALL, UPON CONVICTION, BE PUNISHED (1) BY DEATH IF THE
VERDICT OF THE JURY SHALL SO RECOMMEND, PROVIDED THAT THE SENTENCE OF
DEATH SHALL NOT BE IMPOSED BY THE COURT IF, PRIOR TO ITS IMPOSITION,
THE KIDNAPED PERSON HAS BEEN LIBERATED UNHARMED, OR (2) IF THE DEATH
PENALTY SHALL NOT APPLY NOR BE IMPOSED THE CONVICTED PERSON SHALL BE
PUNISHED BY IMPRISONMENT IN THE PENITENTIARY FOR SUCH TERM OF YEARS AS
THE COURT IN ITS DISCRETION SHALL DETERMINE.  . . . "  48 STAT. 781. 
IN THIS FORM, THE STATUTORY LANGUAGE SIMPLY WILL NOT SUPPORT THE
INTERPRETATION THAT THE OFFENDER "SHALL BE PUNISHED BY DEATH OR BY
IMPRISONMENT" IF THE JURY RECOMMENDS THE DEATH PENALTY.  FOR THE
STATUTE IN THIS FORM MAKES UNMISTAKABLY CLEAR THAT, IF THE DEATH
PENALTY APPLIES-- I.E., IF THE JURY HAS RECOMMENDED DEATH-- THEN THE
PUNISHMENT SHALL BE DEATH UNLESS, BEFORE THE JUDGE HAS IMPOSED
SENTENCE, THE VICTIM HAS BEEN LIBERATED UNHARMED.  THERE IS ABSOLUTELY
NO REASON TO THINK THAT THE PURELY FORMAL TRANSFORMATIONS THROUGH WHICH
THE STATUTE HAS PASSED SINCE 1934 WERE INTENDED TO ALTER THIS BASIC
PENALTY STRUCTURE. 

/10/  SEE 75 CONG.REC.  13288, 13295-13297 (1932). 

/11/  AS ORIGINALLY DRAFTED, THE KIDNAPING ACT HAD PROVIDED FOR
PUNISHMENT "BY DEATH OR IMPRISONMENT . . . FUR SUCH TERM OF YEARS AS
THE COURT IN ITS DISCRETION SHALL DETERMINE.  . . . "  75 CONG.REC. 
13288 (1932). 

/12/  A NUMBER OF CONGRESSMEN FEARED THAT EMPOWERING JUDGES TO
IMPOSE CAPITAL PUNISHMENT MIGHT MAKE SOME JURORS UNDULY RELUCTANT TO
CONVICT.  SEE 75 CONG.REC.  13289, 13294 (1932).  TO THE EXTENT THAT
THIS CONCERN WAS RESPONSIBLE FOR THE DECISION TO REQUIRE A JURY
RECOMMENDATION OF DEATH AS A PREREQUISITE TO THE IMPOSITION OF CAPITAL
PUNISHMENT, IT IS OF COURSE IMMATERIAL WHETHER OR NOT THE JURY'S
RECOMMENDATION IS BINDING ON THE TRIAL JUDGE.  BUT, AS THE GOVERNMENT
CONCEDES, MANY OF THE CONGRESSMEN WHO FAVORED JURY DETERMINATION OF THE
DEATH PENALTY DID SO LARGELY BECAUSE SUCH A SCHEME WOULD TAKE FROM THE
JUDGE THE ONUS OF INFLICTING CAPITAL PUNISHMENT.  SEE, E.G., 75
CONG.REC.  13297. 

/13/  H.R. REP. NO. 1457, 73D CONG.,2D SESS., 2 (1934) 

/14/  IF THE JURY'S VERDICT OF GUILT INCLUDES NO DEATH PENALTY
RECOMMENDATION, THE JUDGE CAN IMPOSE NO PENALTY BEYOND IMPRISONMENT. 
HE CANNOT CONVENE ANOTHER JURY TO RECOMMEND CAPITAL PUNISHMENT.  SEE
UNITED STATES V. DRESSLER, 112 F.2D 972, 980. 

/15/  IN A STATUTE FORBIDDING THE WRECKING OF TRAINS, CONGRESS
PROVIDED THAT ("WHOEVER IS CONVICTED OF ANY SUCH CRIME, WHICH HAS
RESULTED IN THE DEATH OF ANY PERSON, SHALL BE SUBJECT . . . TO THE
DEATH PENALTY . . . IF THE JURY SHALL IN ITS DISCRETION SO DIRECT, OR,
IN THE CASE OF A PLEA OF GUILTY, IF THE COURT IN ITS DISCRETION SO
DIRECT, OR, IN THE CASE OF A PLEA OF GUILTY, IF THE COURT IN ITS
DISCRETION SHALL SO ORDER."  62 STAT. 794 (1948), 18 U.S.C. 1992.  AND
IN A STATUTE PROHIBITING THE DESTRUCTION OF AIRCRAFT, CONGRESS PROVIDED
THAT VIOLATORS WHOSE CONDUCT CAUSES DEATH "SHALL BE SUBJECT . . . TO
THE DEATH PENALTY . . . IF THE JURY SHALL IN ITS DISCRETION SO DIRECT,
OR, IN THE CASE OF A PLEA OF GUILTY, OR A PLEA OF NOT GUILTY WHERE THE
DEFENDANT HAS WAIVED A TRIAL BY JURY, IF THE COURT IN ITS DISCRETION
SHALL SO ORDER."  70 STAT. 540 (1956), 18 U.S.C. 34. 

THE LANGUAGE OF THE AIRCRAFT-WRECKING STATUTE, 18 U.S.C. 34, IS OF
PARTICULAR INTEREST HERE BECAUSE IT REFLECTS A CONGRESSIONAL AWARENESS
OF THE PRECISE PROBLEM THE GOVERNMENT SUGGESTS CONGRESS OVERLOOKED IN
THE KIDNAPING AREA:  IN A LETTER ADDRESSED TO THE CHAIRMAN OF THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, WILLIAM P. ROGERS, THEN
DEPUTY ATTORNEY GENERAL, SUGGESTED ON BEHALF OF THE JUSTICE DEPARTMENT
THAT THE BILL THEN UNDER CONSIDERATION SHOULD BE AMENDED BY THE
ADDITION OF THE PHRASE "OR IN THE CASE OF A PLEA OF NOT GUILTY WHERE
THE DEFENDANT HAS WAIVED TRIAL BY JURY."  THE LETTER STATED: 

"UNDER THE PRESENT PHRASEOLOGY IT IS DOUBTFUL WHETHER THE COURT
COULD INVOKE THE DEATH PENALTY IN A SITUATION WHERE THE DEFENDANT HAS
ENTERED A PLEA OF NOT GUILTY, WAIVED HIS RIGHT TO A TRIAL BY JURY, AND
ASKED TO BE TRIED BY THE COURT."  2 U.S.C. CONGRESSIONAL AND
ADMINISTRATIVE NEWS, 84TH CONG., 2D SESS., 3149-3150 (1956). 

CONGRESS INSERTED THE SUGGESTED LANGUAGE IN THE AIRCRAFT STATUTE AS
ENACTED ON JULY 14, 1956.  LESS THAN A MONTH LATER, CONGRESS
RECONSIDERED THE KIDNAPING ACT AND ADDED A TECHNICAL AMENDMENT, 70
STAT. 1043 (1956), BUT INCLUDED NO PROVISION TO AUTHORIZE THE
IMPOSITION OF THE DEATH PENALTY UPON DEFENDANTS WHO PLEAD GUILTY OR
WAIVE THE RIGHT TO JURY TRIAL. 

/16/  SEE CAL. PENAL CODE SEC. 190.1 (SUPP. 1966); CONN. GEN. STAT.
REV. SEC. 53-10 (SUPP. 1965); PA. STAT. ANN., TIT. 18, SEC. 4701
(1963); N.Y. PENAL LAW SECS. 125.30, 125.35 (1967). 

/17/  THE COMPLEX PROBLEMS PRESENTED BY SEPARATE PENALTY PROCEEDINGS
HAVE FREQUENTLY BEEN NOTED.  SEE, E.G., FRADY V. UNITED STATES, 121
U.S.APP.D.C. 78, 109-110, 348 F.2D 84, 115-116 (BURGER, J., CONCURRING
IN PART AND DISSENTING IN PART); NOTE, THE CALIFORNIA PENALTY TRIAL, 52
CALIF.L.REV.  386 (1964); NOTE, THE TWO-TRIAL SYSTEM IN CAPITAL CASES,
39 N.Y.U.L.REV.  50 (1964).  SEE ALSO KUH, A PROSECUTOR CONSIDERS THE
MODEL PENAL CODE, 63 COL.L.REV.  608, 615 (1963).  IT IS NOT SURPRISING
THE COURTS CONFRONTED WITH SUCH PROBLEMS HAVE CONCLUDED THAT THEIR
SOLUTION REQUIRES "COMPREHENSIVE LEGISLATIVE AND NOT PIECEMEAL JUDICIAL
ACTION."  STATE V. MOUNT, 30 N.J. 195, 224, 152 A.2D 343, 358
(CONCURRING OPINION).  SEE ALSO PEOPLE V. FRIEND, 47 CAL.2D 749, 763,
306 P.2D 463, 471, N. 7.  BUT SEE UNITED STATES V. CURRY, 358 F.2D 904,
914-915. 

/18/  THE GOVERNMENT INFORMS US THAT AT LEAST THREE OF THE
DEFENDANTS WHO PLEADED GUILTY IN CASES ARISING UNDER THE FEDERAL
KIDNAPING ACT HAVE BEEN SENTENCED TO DEATH ON THE RECOMMENDATION OF
SPECIAL PENALTY JURIES CONVENED TO DETERMINE PUNISHMENT. 

/19/  EVEN IN STATES WITH LEGISLATIVELY ESTABLISHED JURY PROCEEDINGS
ON THE PENALTY ISSUE, DEFENSE ATTORNEYS HAVE NOT ALWAYS BEEN PREPARED
TO TAKE ADVANTAGE OF THOSE FEATURES OF THE PENALTY TRIAL DESIGNED TO
BENEFIT THEIR CLIENTS.  SEE NOTE, EXECUTIVE CLEMENCY IN CAPITAL CASES,
39 N.Y.U.L.REV.  136, 167 (1964).  IF THE RELATIVE NOVELTY OF PENALTY
PROCEEDINGS HAS THUS IMPAIRED EFFECTIVE REPRESENTATION IN JURISDICTIONS
WHERE THE CONTOURS OF SUCH PROCEEDINGS HAVE BEEN FIXED BY STATUTE, IT
SEEMS CLEAR THAT THE DIFFICULTIES FOR THE DEFENSE WOULD BE EVEN MORE
FORMIDABLE UNDER THE AMORPHOUS CASE-BY-CASE SYSTEM THAT THE GOVERNMENT
ASKS US TO LEGITIMIZE TODAY.  IT IS NO WONDER THAT THE SECOND CIRCUIT,
WHILE NOT FORECLOSING TWO-STAGE TRIALS ALTOGETHER, WAS "LOATH TO COMPEL
UNWILLING DEFENDANTS TO SUBMIT" TO THEM.  UNITED STATES V. CURRY, 358
F.2D 904, 914. 

/20/  IT IS ESTABLISHED THAT DUE PROCESS FORBIDS CONVICTING A
DEFENDANT ON THE BASIS OF A COERCED GUILTY PLEA.  SEE, E.G., HERMAN V.
CLAUDY, 350 U.S. 116. 

/21/  SEE UNITED STATES V. CURRY, 358 F.2D 904, 913-914 AND N. 8. 
SEE ALSO ANDRES V. UNITED STATES, 333 U.S. 740, 753-754 (FRANKFURTER,
J., CONCURRING). 

/22/  SEE MCDOWELL V. UNITED STATES, 274 F.SUPP.  426, 431.  SEE ALSO
LABOY V. NEW JERSEY, 266 F.SUPP.  581, 585. 

/23/  SEE, E.G., WASH. REV. CODE 9.48.030, 10.01.060, 10.49.010
(1956).  CF. CAL. PENAL CODE SEC. 190.1 (SUPP. 1966). 

/24/  IN AN OPINION BY JUSTICE ZENOFF, SPILLERS V. STATE, . . . NEV.
. . . , . . . , 436 P.2D 18, 22-23, THE SUPREME COURT OF NEVADA HAS
RECENTLY HELD UNCONSTITUTIONAL A STATE PENALTY SCHEME IMPOSING CAPITAL
PUNISHMENT FOR FORCIBLE RAPE RESULTING IN GREAT BODILY INJURY "IF THE
JURY BY THEIR VERDICT AFFIX THE DEATH PENALTY."  NEV. REV. STAT. SEC.
200.360(1) (1963). 

/25/  SEE LABOY V. NEW JERSEY, 266 F.SUPP.  581, 584.  SO, TOO, IN
GRIFFIN V. CALIFORNIA, 380 U.S. 609, THE COURT HELD THAT COMMENT ON A
DEFENDANT'S FAILURE TO TESTIFY IMPOSES AN IMPERMISSIBLE PENALTY ON THE
EXERCISE OF THE RIGHT TO REMAIN SILENT AT TRIAL.  YET IT OBVIOUSLY DOES
NOT FOLLOW THAT EVERY DEFENDANT WHO EVER TESTIFIED AT A PRE-GRIFFIN
TRIAL IN A STATE WHERE THE PROSECUTION COULD HAVE COMMENTED UPON HIS
FAILURE TO DO SO IS ENTITLED TO AUTOMATIC RELEASE UPON THE THEORY THAT
HIS TESTIMONY MUST BE REGARDED AS COMPELLED. 

/26/  UNITED STATES V. WILLIS, 75 F.SUPP.  628, 630. 

/27/  THE APPELLEES CORRECTLY NOTE THAT CHAMPLIN WAS A CASE WHERE
CONGRESS HAD INCLUDED A CLAUSE EXPRESSLY AUTHORIZING THE SEVERANCE OF
ANY INVALID PROVISION, A FACT UPON WHICH THIS COURT RELIED IN
RECOGNIZING "A PRESUMPTION THAT, ELIMINATING INVALID PARTS, THE
LEGISLATURE WOULD HAVE BEEN SATISFIED WITH WHAT REMAINED.  . . . "  286
U.S. 210, 235.  BUT WHATEVER RELEVANCE SUCH AN EXPLICIT CLAUSE MIGHT
HAVE IN CREATING A PRESUMPTION OF SEVERABILITY, SEE ELECTRIC BOND CO.
V. COMM'N, 303 U.S. 419, 434, THE ULTIMATE DETERMINATION OF
SEVERABILITY WILL RARELY TURN ON THE PRESENCE OR ABSENCE OF SUCH A
CLAUSE.  THUS, FOR EXAMPLE, THE COURT IN CHAMPLIN, AFTER STATING THE
BASIC TEST QUOTED ABOVE, CITED CASES IN WHICH INVALID STATUTORY
PROVISIONS HAD BEEN SEVERED DESPITE THE ABSENCE OF ANY PROVISION FOR
SEVERABILITY.  POLLOCK V. FARMERS' LOAN & TRUST CO., 158 U.S. 601, 635;
REAGAN V. FARMERS' LOAN & TRUST CO., 154 U.S. 362, 395-396; FIELD V.
CLARK, 143 U.S. 649, 695-696. 

/28/  AS THIS COURT OBSERVED IN REAGAN V. FARMERS' LOAN & TRUST CO.,
154 U.S. 362, 396, "IT IS NOT TO BE PRESUMED THAT THE LEGISLATURE WAS
LEGISLATING FOR THE MERE SAKE OF IMPOSING PENALTIES, BUT THE PENALTIES
. . . WERE SIMPLY IN AID OF THE MAIN PURPOSE OF THE STATUTE.  THEY MAY
FAIL, AND STILL THE GREAT BODY OF THE STATUTE HAVE OPERATIVE FORCE, AND
THE FORCE CONTEMPLATED BY THE LEGISLATURE IN ITS ENACTMENT." 

/29/  THE ORIGINAL FEDERAL KIDNAPING ACT, 47 STAT. 326, PROVIDED: 

"THAT WHOEVER SHALL KNOWINGLY TRANSPORT OR CAUSE TO BE TRANSPORTED,
OR AID OR ABET IN TRANSPORTING, IN INTERSTATE OR FOREIGN COMMERCE, ANY
PERSON WHO SHALL HAVE BEEN UNLAWFULLY SEIZED, CONFINED, INVEIGLED,
DECOYED, KIDNAPED, ABDUCTED, OR CARRIED AWAY BY ANY MEANS WHATSOEVER
AND HELD FOR RANSOM OR REWARD SHALL, UPON CONVICTION, BE PUNISHED BY
IMPRISONMENT IN THE PENITENTIARY FOR SUCH TERM OF YEARS AS THE COURT,
IN ITS DISCRETION, SHALL DETERMINE.  . . . " 

/30/  THE SENATE JUDICIARY COMMITTEE HAD OPPOSED CAPITAL PUNISHMENT
AND HAD REPORTED THE KIDNAPING LAW IN A VERSION THAT AUTHORIZED NO
PENALTY BEYOND "IMPRISONMENT . . . FOR SUCH TERM OF YEARS AS THE COURT,
IN ITS DISCRETION, SHALL DETERMINE."  S. REP. NO. 765, 72D CONG., 1ST
SESS., 2 (1932); 75 CONG.REC.  11878 (1932).  IN THE ENSUING DEBATES,
SOME MEMBERS OF THE HOUSE OPPOSED THE DEATH PENALTY ON PRINCIPLE.  75
CONG.REC.  13285, 13289-13290, 13294 (1932).  OTHERS ARGUED THAT THE
THREAT OF CAPITAL PUNISHMENT WOULD ENCOURAGE KIDNAPERS TO KILL THEIR
VICTIMS LEST THEIR TESTIMONY LEAD TO CONVICTION AND EXECUTION.  ID., AT
13285, 13304.  MOST FAVORED THE DEATH PENALTY IN SOME FORM, SEE ID., AT
13283-13284, 13286-13287, 13295, BUT FEARED THAT EFFORTS TO PERSUADE
THE SENATE TO ACCEPT A CAPITAL PUNISHMENT PROVISION WOULD OCCASION
FURTHER DELAY AND MIGHT CAUSE ULTIMATE DEFEAT.  ID., AT 13288, 13299,
13303.  THE MAJORITY THEREFORE COMPROMISED THEIR VIEWS AND ACCEPTED THE
SENATE VERSION OF THE BILL.  ID., AT 13304.  SEE BOMAR, THE LINDBERGH
LAW, 1 LAW & CONTEMP.  PROB.  435, 440 (1934). 

/31/  CONGRESSMAN DYER OF MISSOURI HAD STATED THAT WITHOUT THE DEATH
PENALTY "THE LEGISLATION WOULD NOT BE WORTH ANYTHING, BECAUSE EVERY
STATE NOW HAS A KIDNAPING LAW AND FEW OF THEM PROVIDE THE DEATH
PENALTY."  75 CONG.REC.  13287 (1932). 

/32/  CONGRESSMAN COCHRAN OF MISSOURI, WHO HAD INTRODUCED THE
ORIGINAL BILL (H.R. 5657) WITH A DEATH PENALTY CLAUSE, STRESSED THAT
HIS OBJECTIVE WAS THE PROMPT ENACTMENT OF A FEDERAL KIDNAPING LAW; TO
THAT END, HE WAS "WILLING TO GO ALONG AND STRIKE OUT THE DEATH
PENALTY."  75 CONG.REC.  13296 (1932); SEE ALSO ID., AT 13284, 13299,
13304.  CONGRESSMAN LAGUARDIA OF NEW YORK PUT THE MATTER SUCCINCTLY:
"(IF WHAT CONGRESS IS LOOKING FOR IS A HEADLINE, LEAVE THE DEATH
PENALTY IN; BUT IF WE ARE LOOKING FOR A REAL BILL THAT WILL BE A
DETERRENT TO KIDNAPPING, TAKE THE SENATE BILL.  (APPLAUSE.)"  ID., AT
13299.  SHORTLY, THEREAFTER, THE HOUSE PASSED THE SENATE VERSION OF THE
ACT.  ID., AT 13304. 

/33/  BY 1934, THE SENATE'S ATTITUDE TOWARD CAPITAL PUNISHMENT HAD
CHANGED MARKEDLY.  IN THAT YEAR THE SENATE PASSED A BILL (S. 2841)
AUTHORIZING PUNISHMENT "BY IMPRISONMENT FOR NOT LESS THAN 10 YEARS, OR
BY DEATH" FOR KILLING OR KIDNAPING IN CONNECTION WITH A BANK ROBBERY. 
78 CONG.REC.  5738 (1934).  THE HOUSE JUDICIARY COMMITTEE AMENDED THE
SENATE PROVISION TO ITS PRESENT FORM, SEE 18 U.S.C. 2113(E), LIMITING
THE DEATH PENALTY TO THOSE CASES WHERE "THE VERDICT OF THE JURY SHALL
SO DIRECT."  H.R. REP. NO. 1461, 73D CONG., 2D SESS., 1 (1934). 

THE HOUSE JUDICIARY COMMITTEE HAD NOT FORGOTTEN THAT ITS ATTEMPT TO
INCLUDE SIMILAR LANGUAGE IN THE KIDNAPING ACT OF 1932, SEE H.R. REP.
NO. 1493, 72D CONG., 1ST SESS., 1 (1932), HAD BEEN DEFEATED "IN THE
RUSH TO DRAFT AND ENACT A (KIDNAPING) BILL SUITABLE TO BOTH HOUSES
BEFORE ADJOURNMENT."  FINLEY, THE LINDBERGH LAW, 28 GEO.L.J. 908, 914,
N. 24 (1940).  TAKING ITS CUE FROM THE BANK ROBBERY LEGISLATION, THE
HOUSE COMMITTEE FOUND AN IDEAL OPPORTUNITY TO REASSERT ITS 1932
POSITION IN A SENATE BILL (S. 2252) THAT HAD BEGUN AS A TECHNICAL
AMENDMENT TO THE 1932 KIDNAPING ACT.  SEE 78 CONG.REC.  5737 (1934). 
IN S. 2252, THE SENATE RETAINED THE BASIC PUNISHMENT OF "IMPRISONMENT
IN THE PENITENTIARY FOR SUCH TERM OF YEARS AS THE COURT, IN ITS
DISCRETION, SHALL DETERMINE," SEE N. 29, SUPRA, BUT THE HOUSE JUDICIARY
COMMITTEE ADDED THE ALTERNATIVE PENALTY OF "DEATH IF THE VERDICT OF THE
JURY SHALL SO RECOMMEND, PROVIDED THAT THE SENTENCE OF DEATH SHALL NOT
BE IMPOSED BY THE COURT IF, PRIOR TO ITS IMPOSITION, THE KIDNAPED
PERSON HAS BEEN LIBERATED UNHARMED.  . . . "  H.R. REP. NO. 1457, 73D
CONG., 2D SESS., 1 (1934); 78 CONG.REC.  8127-8128 (1934). 

AFTER INITIAL DISAGREEMENT IN THE SENATE, ID., AT 8263-8264, AND A
CONFERENCE, ID., AT 8322; H.R. REP. NO. 1595, 73D CONG., 2D SESS.
(1934), THE SENATE ACCEPTED THE HOUSE ADDITION TO S. 2252 WITHOUT
DEBATE, 78 CONG.REC.  8767, 8775, 8778, 8855-8857 (1934), AND THE
RESULTING STATUTE, 48 STAT. 781 (1934), EMPLOYED SUBSTANTIALLY THE SAME
LANGUAGE AS THAT NOW APPEARING IN 18 U.S.C. 1201(A).  AS AMENDED IN
1934, THE FEDERAL KIDNAPING ACT, 48 STAT. 781, THUS PROVIDED: 
"WHOEVER SHALL KNOWINGLY TRANSPORT OR CAUSE TO BE TRANSPORTED, OR AID
OR ABET IN TRANSPORTING, IN INTERSTATE OR FOREIGN COMMERCE, ANY PERSON
WHO SHALL HAVE BEEN UNLAWFULLY SEIZED, CONFINED, INVEIGLED, DECOYED,
KIDNAPED, ABDUCTED, OR CARRIED AWAY BY ANY MEANS WHATSOEVER AND HELD
FOR RANSOM OR REWARD OR OTHERWISE, EXCEPT, IN THE CASE OF A MINOR, BY A
PARENT THEREOF, SHALL, UPON CONVICTION, BE PUNISHED (1) BY DEATH IF THE
VERDICT OF THE JURY SHALL SO RECOMMEND, PROVIDED THAT THE SENTENCE OF
DEATH SHALL NOT BE IMPOSED BY THE COURT IF, PRIOR TO ITS IMPOSITION,
THE KIDNAPED PERSON HAS BEEN LIBERATED UNHARMED, OR (2) IF THE DEATH
PENALTY SHALL NOT APPLY NOR BE IMPOSED THE CONVICTED PERSON SHALL BE
PUNISHED BY IMPRISONMENT IN THE PENITENTIARY FOR SUCH TERM OF YEARS AS
THE COURT IN ITS DISCRETION SHALL DETERMINE.  . . . " 

/34/  IN LATE 1931 THE AMERICAN PUBLIC BECAME SERIOUSLY CONCERNED
ABOUT THE MOUNTING INCIDENCE OF PROFESSIONAL KIDNAPING AND THE APPARENT
INABILITY OF STATE AND LOCAL AUTHORITIES TO COPE WITH THE INTERSTATE
ASPECTS OF THE PROBLEM.  SEE FISHER & MCGUIRE, KIDNAPING AND THE SO
CALLED LINDBERGH LAW, 12 N.Y.U.L.Q.REV.  646, 652-653 (1935).  BECAUSE
OF ITS GEOGRAPHICAL POSITION, THE CITY OF ST. LOUIS "HAD EXPERIENCED
NUMEROUS KIDNAPINGS IN WHICH THE HANDICAP OF STATE LINES HAD HINDERED
OR DEFEATED HER POLICE OFFICERS."  BOMAR, THE LINDBERGH LAW, 1 LAW &
CONTEMP.  PROB.  435 (1934).  LARGELY IN RESPONSE TO THIS EXPERIENCE,
SENATOR PATTERSON AND CONGRESSMAN COCHRAN, BOTH OF MISSOURI, INTRODUCED
IDENTICAL BILLS (S. 1525, H.R. 5657) IN THE HOUSE AND SENATE, 75
CONG.REC.  275, 491 (1931), FORBIDDING THE TRANSPORTATION IN INTERSTATE
OR FOREIGN COMMERCE OF ANY PERSON "KIDNAPED . . . AND HELD FOR RANSOM
OR REWARD, OR . . . FOR ANY OTHER UNLAWFUL PURPOSE."  SEVERAL MONTHS
AFTER THE KIDNAPING OF THE LINDBERGH BABY IN MARCH 1932, CONGRESS
ENACTED THE FIRST FEDERAL KIDNAPING ACT, SEE N. 29, SUPRA, A SLIGHTLY
MODIFIED VERSION OF THE BILLS INTRODUCED BY PATTERSON AND COCHRAN. 

/35/  SEE BOMAR, THE LINDBERGH LAW, 1 LAW & CONTEMP.  PROB.  435,
440 AND N. 36.  ONE MIGHT LEGITIMATELY DOUBT THE ABILITY OF THE DEATH
PENALTY CLAUSE TO ACHIEVE THIS SUPPOSED OBJECTIVE.  IN THAT REGARD, IT
HAS BEEN OBSERVED THAT "(THE ADVANTAGE TO THE KIDNAPPER IN KILLING HIS
VICTIM IS OBVIOUS AND IMMEDIATE, FOR THE (GOVERNMENT'S) BEST WITNESS,
PERHAPS ITS WHOLE CASE, WILL BE PUT OUT OF THE WAY.  THUS A SENTENCE OF
LIFE IMPRISONMENT INSTEAD OF DEATH MAY NOT SUFFICE TO INDUCE A
KIDNAPPER TO REFRAIN FROM KILLING HIS VICTIM, EVEN IF THE KIDNAPPER IS
AWARE OF THE MITIGATION PROVISION-- ITSELF A SUPPOSITION NOT ALWAYS
TRUE."  NOTE, A RATIONALE OF THE LAW OF KIDNAPPING, 53 COL.L.REV.  540,
550 (1953). 

MOREOVER, AS THIS COURT HAS INTERPRETED THE STATUTE, THE DEATH
PENALTY MAY BE IMPOSED SO LONG AS "THE KIDNAPPED PERSON . . . WAS STILL
SUFFERING FROM . . . INJURIES WHEN LIBERATED."  ROBINSON V. UNITED
STATES, 324 U.S. 282, 285.  AS A RESULT, "(ONCE (AN) INJURY HAS TAKEN
PLACE, THE INDUCEMENT HELD OUT BY THE STATUTE NECESSARILY IS EITHER TO
HOLD THE VICTIM UNTIL CURE IS EFFECTED OR TO DO AWAY WITH HIM SO THAT
EVIDENCE, BOTH OF THE INJURY AND OF THE KIDNAPPING, IS DESTROYED." 
ID., AT 289 (RUTLEDGE, J., DISSENTING). 

/36/  CONGRESS WAS CERTAINLY AWARE WHEN IT PASSED THE ORIGINAL
KIDNAPING ACT OF 1932 THAT "(THE VICTIM MAY BE MURDERED OR SLAIN" IF
THE KIDNAPER "HAS NOTHING TO GAIN BY (KEEPING) THE VICTIM . . .
ALIVE."  75 CONG.REC.  13285 (1932).  SUCH CONSIDERATIONS MIGHT HAVE
BEEN INFLUENTIAL IN THE OMISSION OF ANY DEATH PENALTY PROVISION IN
1932, SEE ROBINSON V. UNITED STATES, 324 U.S. 282, 289, N. 4 (RUTLEDGE,
J., DISSENTING), BUT NOT A SINGLE MEMBER OF CONGRESS EVEN HINTED THAT
THE ANTI-KIDNAPPING LAW SHOULD BE DEFEATED ALTOGETHER IN THE INTEREST
OF THE VICTIM'S SAFETY.  GIVEN THE LAW'S FUNDAMENTAL OBJECTIVE OF
PREVENTING INTERSTATE KIDNAPING IN THE FIRST INSTANCE, ANY SUCH
SUGGESTION WOULD HAVE BEEN UNTHINKABLE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

THE COURT STRIKES DOWN A PROVISION OF THE FEDERAL KIDNAPING ACT
WHICH AUTHORIZES ONLY THE JURY TO IMPOSE THE DEATH PENALTY.  NO
QUESTION IS RAISED ABOUT THE DEATH PENALTY ITSELF OR ABOUT THE
PROPRIETY OF JURY PARTICIPATION IN ITS IMPOSITION, BUT CONFINING THE
POWER TO IMPOSE THE DEATH PENALTY TO THE JURY ALONE IS HELD TO BURDEN
IMPERMISSIBLY THE RIGHT TO A JURY TRIAL BECAUSE IT MAY EITHER COERCE OR
ENCOURAGE PERSONS TO PLEAD GUILTY OR TO WAIVE A JURY AND BE TRIED BY
THE JUDGE.  IN MY VIEW, HOWEVER, IF THE VICE OF THE PROVISION IS THAT
IT MAY INTERFERE WITH THE FREE CHOICE OF THE DEFENDANT TO HAVE HIS
GUILT OR INNOCENCE DETERMINED BY A JURY, THE COURT NEEDLESSLY
INVALIDATES A MAJOR PORTION OF AN ACT OF CONGRESS.  THE COURT ITSELF
SAYS THAT NOT EVERY PLEA OF GUILTY OR WAIVER OF JURY TRIAL WOULD BE
INFLUENCED BY THE POWER OF THE JURY TO IMPOSE THE DEATH PENALTY.  IF
THIS IS SO, I WOULD NOT HOLD THE PROVISION UNCONSTITUTIONAL BUT WOULD
REVERSE THE JUDGMENT, MAKING IT CLEAR THAT PLEAS OF GUILTY AND WAIVERS
OF JURY TRIAL SHOULD BE CAREFULLY EXAMINED BEFORE THEY ARE ACCEPTED, IN
ORDER TO MAKE SURE THAT THEY HAVE BEEN NEITHER COERCED NOR ENCOURAGED
BY THE DEATH PENALTY POWER IN THE JURY. 

BECAUSE THIS STATUE MAY BE PROPERLY INTERPRETED SO AS TO AVOID
CONSTITUTIONAL QUESTIONS, I WOULD NOT TAKE THE FIRST STEP TOWARD
INVALIDATION OF STATUTES ON THEIR FACE BECAUSE THEY ARGUABLY BURDEN THE
RIGHT TO JURY TRIAL. 

RALPH S. SPRITZER ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL VINSON, RICHARD A. POSNER, BEATRICE ROSENBERG AND MARSHALL
TAMOR GOLDING. 

STEVEN B. DUKE ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON THE
BRIEF FOR APPELLEE JACKSON WAS STEPHEN I. TRAUB.  IRA B. GRUDBERG WAS
ON THE BRIEF FOR APPELLEE WALSH. 
..END :










FONTAINE V. CALIFORNIA, 390 U.S. 593 


       FONTAINE V. CALIFORNIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL
OF

CALIFORNIA, FIRST APPELLATE DISTRICT. 

        NO. 854, MISC.  DECIDED APRIL 8, 1968. 


PETITIONER WAS CONVICTED ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE OF
SELLING MARIHUANA TO AN INFORMER, WHO DISAPPEARED DURING THE PERIOD THE
STATE DELAYED BRINING THE CASE TO TRIAL.  THE DISTRICT COURT OF APPEAL
(ON THE BASIS OF GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965), DECIDED
AFTER PETITIONER'S TRIAL) HELD THAT THE PROSECUTOR'S COMMENTS ON
PETITIONER'S FAILURE TO TESTIFY AND THE TRIAL COURT'S INSTRUCTION THAT
THE JURY COULD DRAW ADVERSE INFERENCES FROM PETITIONER'S SILENCE
VIOLATED PETITIONER'S PRIVILEGE AGAINST SELF-INCRIMINATION BUT THAT THE
ERROR WAS HARMLESS.  THE STATE SUPREME COURT DENIED REVIEW.  FOLLOWING
THIS COURT'S REMAND OF THE CASE IN THE LIGHT OF CHAPMAN V. CALIFORNIA,
386 U.S. 18 (1967), THE COURT OF APPEAL REINSTATED ITS FORMER OPINION
BUT RECITED THAT THE CONSTITUTIONAL ERROR WAS HARMLESS "BEYOND A
REASONABLE DOUBT."  HELD:  IN THE ABSENCE OF TESTIMONY OF THE INFORMER
SUPPORTING THE STATE'S VERSION OF DISPUTED ISSUES, THE STATE HAS NOT
MET ITS BURDEN OF PROVING BEYOND A REASONABLE DOUBT THAT THE ERRONEOUS
COMMENTS OF THE PROSECUTOR AND THE TRIAL JUDGE'S INSTRUCTION DID NOT
CONTRIBUTE TO THE PETITIONER'S CONVICTION.  CHAPMAN V. CALIFORNIA,
SUPRA, AT 24, 25-26. 

CERTIORARI GRANTED; 252 CAL.APP.2D 73, 60 CAL.RPTR.  325, REVERSED. 

PER CURIAM. 

THE PETITIONER ALLEGEDLY MADE TWO SALES OF MARIHUANA TO AN INFORMER
IN JUNE AND JULY 1963.  HE WAS NOT INDICTED UNTIL MID-OCTOBER 1963. 
ACCORDING TO THE STATE, THE DELAY WAS DUE TO THE STATE'S DESIRE TO USE
THE INFORMER IN OTHER NARCOTICS CASES.  BY THE TIME THE CASE CAME TO
TRIAL, THE INFORMER HAD DISAPPEARED.  EVIDENCE AS TO THE ALLEGED
PURCHASES FROM PETITIONER CONSISTED OF TAPED TELEPHONE CONVERSATIONS
WHICH PETITION CLAIMS ARE AMBIGUOUS, AND THE TESTIMONY OF POLICE
OFFICIALS.  SOME OF THE POLICE OBSERVED THE TRANSACTIONS BETWEEN
PETITIONER AND THE INFORMER, BUT UNDER CIRCUMSTANCES WHICH PETITIONER
ARGUES LEAVE SUBSTANTIAL DOUBT THAT THE SELLER WAS IN FACT THE
PETITIONER. 

THE JURY FOUND PETITIONER GUILTY, BUT THE TRIAL JUDGE ORDERED A NEW
TRIAL BECAUSE OF THE STATE'S DELAY WHICH HAD MADE THE INFORMER
UNAVAILABLE.  THE CALIFORNIA DISTRICT COURT OF APPEAL REVERSED THE
TRIAL JUDGE'S RULING, 237 CAL.APP.2D 320, 46 CAL.RPTR.  855 (1965).  IT
HELD THAT THE FAILURE TO PRODUCE THE INFORMER DID NOT DENY A FAIR
TRIAL. 

AT THE TRIAL, WHICH TOOK PLACE BEFORE OUR DECISION IN GRIFFIN V.
CALIFORNIA, 380 U.S. 609 (1965), THE PROSECUTOR HAD COMMENTED UPON
PETITIONER'S FAILURE TO TAKE THE STAND.  HIS COMMENT WAS AS FOLLOWS: 

     "HOW DO WE KNOW THE DEFENDANT KNEW IT WAS MARIJUANA?  WELL, I

  GUESS IF HE DIDN'T KNOW IT WAS MARIJUANA HE COULD HAVE TAKEN THE

  STAND AND TOLD US THAT HE DIDN'T KNOW IT WAS MARIJUANA AND

  THEREBY SUBJECT HIMSELF TO CROSS-EXAMINATION, IF HE CHOSE NOT

  TO. 

     "HIS HONOR WILL INSTRUCT YOU THEN ON THE EFFECT THAT IT MAY

  HAVE, ANY CONCLUSIONS OR INFERENCES YOU MAY DRAW FROM THE FACT

  THAT HE WOULDN'T TAKE THE STAND AND TESTIFY.  . . . 

     "WELL, LADIES AND GENTLEMEN, THAT IS THE CASE.  YOU HEARD THE

 EVIDENCE.  YOU HEARD THE ARGUMENTS OF COUNSEL.  YOU HAVEN'T HEARD

  FROM THE DEFENDANT.  I WILL ASK YOU TO TAKE THAT INTO

  CONSIDERATION, TAKE INTO CONSIDERATION THE INFERENCE WHICH YOU

  MAY DRAW BECAUSE HE DIDN'T CHOOSE TO DEFEND HIMSELF AND WHAT HE

  MAY HAVE SAID IN THAT RESPECT.". 

THE TRIAL JUDGE HAD INSTRUCTED THE JURY THAT IT COULD DRAW ADVERSE
INFERENCES FROM PETITIONER'S SILENCE.  /1/  GRIFFIN WAS DECIDED BETWEEN
THE TIME OF TRIAL AND THE APPELLATE DECISION.  THE DISTRICT COURT OF
APPEAL HELD THAT THE PROSECUTOR'S ARGUMENT AND THE JUDGE'S COMMENT
VIOLATED PETITIONER'S PRIVILEGE AGAINST SELF-INCRIMINATION UNDER
GRIFFIN.  HOWEVER, THE COURT OF APPEAL FOUND THE CONSTITUTIONAL ERROR
HARMLESS UNDER THE CALIFORNIA HARMLESS-ERROR RULE PREVAILING AT THAT
TIME.  THE STATE SUPREME COURT DECLINED TO REVIEW THE CASE. 

SUBSEQUENTLY, WE DECIDED CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1967),
WHICH DISAPPROVED OF CALIFORNIA' HARMLESS-ERROR RULE AS APPLIED TO
FEDERAL CONSTITUTIONAL ERRORS.  THEREAFTER, WE GRANTED A PETITION FOR A
WRIT OF CERTIORARI IN THE INSTANT CASE, VACATED THE JUDGMENT BELOW, AND
REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN.  386 U.S. 263
(1967).  ON REMAND, THE DISTRICT COURT OF APPEAL REINSTATED ITS FORMER
OPINION EXCEPT THAT IT REWROTE THE PORTION DEALING WITH HARMLESS
ERROR.  THIS TIME IT RECITED THAT THE CONSTITUTIONAL ERROR IN THIS CASE
WAS HARMLESS "BEYOND A REASONABLE DOUBT"-- THE STANDARD ANNOUNCED IN
CHAPMAN.  PEOPLE V. FONTAINE, 252 CAL.APP.2D 73, 60 CAL.RPTR.  325. 

THE DISPUTED ISSUES AT THE TRIAL CENTERED PRINCIPALLY UPON WHETHER
THE PETITIONER KNOWINGLY TRANSFERRED WAX BAGS OF MARIHUANA TO THE
INFORMER.  THE PETITIONER CLAIMED PREJUDICE AS A RESULT OF THE
UNAVAILABILITY OF THE INFORMER.  WE NEED NOT DECIDE WHETHER THIS,
STANDING ALONE, WOULD ENTITLE THE PETITIONER TO REVERSAL OF THE
DECISION BELOW BECAUSE IT IS CLEAR THAT IN THE ABSENCE OF TESTIMONY OF
THE INFORMER SUPPORTING THE STATE'S VERSION OF THE DISPUTED ISSUES, IT
WAS ERROR FOR THE COURT BELOW TO HOLD THAT THE COMMENTS OF THE
PROSECUTOR AND THE TRIAL JUDGE WERE HARMLESS "BEYOND A REASONABLE
DOUBT." 

THESE COMMENTS UPON PETITIONER'S FAILURE TO TAKE THE STAND VIOLATED
HIS CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  GRIFFIN V.
CALIFORNIA, SUPRA.  THE JURY HAD BEEN ASKED TO CONVICT PETITIONER ON
THE BASIS OF CIRCUMSTANTIAL EVIDENCE, IN THE ABSENCE OF TESTIMONY FROM
THE STATE'S AGENT WHO ALLEGEDLY MADE THE PURCHASES FROM PETITIONER.  IN
THESE CIRCUMSTANCES, THE STATE HAS NOT MET ITS BURDEN OF PROVING BEYOND
A REASONABLE DOUBT THAT THE ERRONEOUS COMMENTS AND INSTRUCTION DID NOT
CONTRIBUTE TO PETITIONER'S CONVICTION.  CHAPMAN V. CALIFORNIA, 386
U.S.,AT 24, 25-26. 

ACCORDINGLY, THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND
THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED AND THE JUDGEMENT IS

         REVERSED. 

/1/  "IT IS A CONSTITUTIONAL RIGHT OF A DEFENDANT IN A CRIMINAL
TRIAL THAT HE MAY NOT BE COMPELLED TO TESTIFY.  THUS, WHETHER OR NOT HE
DOES TESTIFY RESTS ENTIRELY IN HIS OWN DECISION.  AS TO ANY EVIDENCE OR
FACTS AGAINST HIM WHICH THE DEFENDANT CAN REASONABLY BE EXPECTED TO
DENY OR EXPLAIN BECAUSE OF FACTS WITHIN HIS KNOWLEDGE, IF HE DOES NOT
TESTIFY OR IF, THOUGH HE DOES TESTIFY, HE FAILS TO DENY OR EXPLAIN SUCH
EVIDENCE, THE JURY MAY TAKE THAT FAILURE INTO CONSIDERATION AS TENDING
TO INDICATE THE TRUTH OF SUCH EVIDENCE AND AS INDICATING THAT AMONG THE
INFERENCES THAT MAY BE REASONABLY DRAWN THEREFROM THOSE UNFAVORABLE TO
THE DEFENDANT ARE THE MORE PROBABLE." 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT
OF THE STATE COURT. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND DERALD E.
GRANBERG AND LOUISE H. RENNE, DEPUTY ATTORNEYS GENERAL, FOR
RESPONDENT. 
..END :













INCORPORATED VILLAGE OF PORT JEFFERSON V. BOARD OF SUPERVISORS, 390
U.S. 597 



       INCORPORATED VILLAGE OF PORT JEFFERSON ET AL. V. BOARD OF

           SUPERVISORS OF THE COUNTY OF SUFFOLK ET AL.

        APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

        NO. 1152.  DECIDED APRIL 8, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

WILLIAM M. JOHNSON FOR APPELLANTS. 

STANLEY S. CORWIN FOR BOARD OF SUPERVISORS OF SUFFOLK COUNTY ET AL.,
AND FREDERICK MARS FOR RECEIVER OF TAXES OF THE TOWN OF BROOKHAVEN,
APPELLEES. 
..END :




BERTERA'S HOPEWELL FOODLAND V. MASTERS, 390 U.S. 597 


       BERTERA'S HOPEWELL FOODLAND, INC. V. MASTERS, DISTRICT

           ATTORNEY, ET AL.

        APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

        NO. 1132.  DECIDED APRIL 8, 1968. 


428 PA. 20, 236 A.2D 197, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

HUBERT I. TEITELBAUM AND MARTIN M. SHEINMAN FOR APPELLANT. 
..END :











JEHOVAH'S WITNESSES IN THE STATE OF WASHINGTON V. KING COUNTY
HOSPITAL, 390 U.S. 598 



       JEHOVAH'S WITNESSES IN THE STATE OF WASHINGTON ET AL. V.

           KING COUNTY HOSPITAL UNIT NO. 1 (HARBORVIEW) ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF WASHINGTON. 

        NO. 1111.  DECIDED APRIL 8, 1968. 


278 F.SUPP.  488, AFFIRMED. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED, PRINCE V. MASSACHUSETTS, 321 U.S. 158. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE HARLAN WOULD NOTE PROBABLE
JURISDICTION AND SET THE CASE FOR ORAL ARGUMENT. 

VICTOR V. BLACKWELL, DANIEL BRINK AND KENNETH S. JACOBS FOR
APPELLANTS. 

JOHN J. O'CONNELL, ATTORNEY GENERAL OF WASHINGTON, JAMES B. WILSON,
ASSISTANT ATTORNEY GENERAL, AND JAMES E. KENNEDY FOR APPELLEES. 
..END :





















HOPKINS V. COHEN, 390 U.S. 530 


       HOPKINS V. COHEN, ACTING SECRETARY OF HEALTH, EDUCATION, AND

           WELFARE. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT. 

        NO. 276.  ARGUED MARCH 11-12, 1968.-- DECIDED APRIL 2,

           1968. 


THE PROVISION IN SEC. 206(B)(1) OF THE SOCIAL SECURITY ACT LIMITING
AN ATTORNEY'S FEE TO "25 PERCENT OF THE TOTAL OF THE PAST-DUE BENEFITS
TO WHICH THE CLAIMANT IS ENTITLED BY REASON OF SUCH JUDGMENT," HELD,
DOES NOT RESTRICT THE FEE TO THE PERCENTAGE OF THE ACCRUED BENEFITS
AWARDED THE PERMANENTLY DISABLED CLAIMANT, BUT INCLUDES AS WELL THE
BENEFITS ACCRUED TO HIS DEPENDENTS BY VIRTUE OF THE DISABILITY.  PP.
531-535. 

374 F.2D 726, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE CEILING ON AN ATTORNEY'S FEE UNDER SEC.
206(B)(1) OF THE SOCIAL SECURITY ACT, AS AMENDED, /1/  79 STAT. 403, 42
U.S.C. 406(B)(1) (1964 ED., SUPP. II), IS BASED ON THE BENEFITS
RECEIVED BY THE CLAIMANT ALONE OR MAY BE BASED ALSO ON THE BENEFITS
THAT OTHER DEPENDENT MEMBERS OF HIS FAMILY RECEIVE BY VIRTUE OF THE
CLAIMANT'S DISABILITY. 

RESPONDENT RULED THAT PETITIONER /2/  WAS NOT TOTALLY AND
PERMANENTLY DISABLED WITHIN THE MEANING OF THE ACT.  THE DISTRICT COURT
REVERSED AND AWARDED THE CLAIMANT'S ATTORNEY A FEE EQUAL TO 25% OF THE
BENEFITS ACCRUING TO THE CLAIMANT ALONE.  THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT AFFIRMED.  374 F.2D 726.  BECAUSE ITS RULING AS TO
ATTORNEY FEES CONFLICTED WITH DECISIONS OF THE FOURTH CIRCUIT (SEE
REDDEN V. CELEBREZZE, 361 F.2D 815; LAMBERT V. CELEBREZZE, 361 F.2D
677), WE GRANTED THE PETITION FOR CERTIORARI.  389 U.S. 811. 

THE DISABLED CLAIMANT QUALIFIES UNDER SEC. 223 OF THE ACT (42 U.S.C.
423 (1964 ED., SUPP. II) AND FIGURES HIS PRIMARY BENEFITS UNDER SEC.
215 OF THE ACT (42 U.S.C. 415 (1964 ED., SUPP. II)). 

THE CLAIMANTS WHO RECEIVE BENEFITS AS RELATIVES OF THE DISABLED
PERSON WHO QUALIFIES UNDER SEC. 223, FIGURE THEIR ELIGIBILITY AND
AMOUNT OF BENEFITS UNDER SEC. 202 OF THE ACT (42 U.S.C. 402 (1964 ED.,
SUPP. II); WIFE, SEC. 202(B); CHILD, SEC. 202(D); WIDOW, SEC. 202(E);
WIDOWER, SEC. 202(F); MOTHER, SEC. 202(G); PARENT, SEC. 202(H). 

PAYABLE TO THE WIFE ON THE DISABILITY OF THE HUSBAND, AND IN (D)(1) AND
(D)(2) THE DISABILITY BENEFITS OF THE CHILD OF THE DISABLED CLAIMANT. 
THE WIFE (SEC. 202(B)(1((A)) AND THE CHILD (SEC. 202(D)(1)(A)) MAY FILE
FOR THESE BENEFITS.  BUT THEY NEED NOT ALWAYS DO SO THEMSELVES, /3/
FOR THE ACT MAKES THE RIGHT TO SUCH BENEFITS DEPENDENT PRIMARILY ON THE
STATUS AND CONDITION OF THOSE DEPENDENT PERSONS. 

THE WIFE AND CHILD EACH COMPUTE THEIR BENEFITS ON THE BASIS OF A
PERCENTAGE SHARE OF THE DISABLED CLAIMANT'S PRIMARY BENEFITS DETERMINED
UNDER SEC. 223.  SEE SECS. 202(B)(2) /4/  AND 202(D)(2).  THE MAXIMUM
FAMILY BENEFIT DEPENDS UPON THE AMOUNT OF THE PRIMARY BENEFIT TO WHICH
THE DISABLED CLAIMANT IS ENTITLED.  SEE SECS. 215(A) AND 203(A).  THE
SCHEME OF THE ACT THUS PROCEEDS FROM A RECOGNITION OF AN INTIMATE
RELATIONSHIP BETWEEN THE VARYING AMOUNTS OF BENEFITS DUE THE DISABLED
CLAIMANT AND HIS DEPENDENTS. 

HOPKINS WAS RECEIVING DISABILITY PAYMENTS UNDER SEC. 223 BETWEEN
MARCH 1961 AND DECEMBER 1962; HIS WIFE AND TWO CHILDREN WERE ALSO
RECEIVING BENEFITS DURING THIS SAME PERIOD AS DEPENDENTS OF A RECIPIENT
OF DISABILITY PAYMENTS (SEC. 202).  IN DECEMBER 1962 THESE BENEFITS
WERE TERMINATED, ON THE GROUND THAT PETITIONER WAS NO LONGER "DISABLED"
WITHIN THE MEANING OF THE ACT.  PETITIONER EXHAUSTED HIS
ADMINISTRATIVE REMEDIES, AND THEN SOUGHT REVIEW IN THE DISTRICT COURT. 
THE DISTRICT COURT'S ORDER REVERSED THE ADMINISTRATIVE DECISION AS TO
DISABILITY.  AND PURSUANT TO THIS ORDER THE DIRECTOR OF THE BUREAU OF
DISABILITY INSURANCE WROTE PETITIONER AS FOLLOWS: 

     "BASED ON THE RECENT AMENDMENTS TO THE SOCIAL SECURITY ACT,
YOU

  ARE ENTITLED TO RECEIVE $123.10.  YOUR WIFE AND THE TWO CHILDREN

  ARE EACH ENTITLED TO RECEIVE $51.50.  THESE NEW MONTHLY RATES ARE

  EFFECTIVE BEGINNING JANUARY 1965. 

     "SECTION 206(B)(1) OF THE SOCIAL SECURITY ACT PROVIDES THAT

  (YOUR ATTORNEY MAY ASK THE COURT TO APPROVE A FEE NOT TO EXCEED

  25 PERCENT OF POST-BENEFITS DUE YOU.  WE ARE, THEREFORE,

  WITHHOLDING THE AMOUNT OF $936.20, WHICH REPRESENTS 25 PERCENT OF

  YOUR PAST-DUE BENEFITS OF $3,744.00 PENDING ACTION BY THE COURT

 ON THE AMOUNT OF THE ATTORNEY FEE.  THE AMOUNT WITHHELD WILL BE

  APPLIED AGAINST THE FEE SET BY THE COURT AND WILL BE MAILED

  DIRECTLY TO YOUR ATTORNEY; AND REMAINING AMOUNT WILL BE SENT TO

  YOU. 

     "BENEFIT PAYMENTS FOR YOU AND YOUR WIFE WILL CONTINUE TO BE

  COMBINED.  THE NEXT HUSBAND-WIFE CHECK WILL BE FOR $5,032.60. 

  THIS REPRESENTS PAYMENT FOR JANUARY 1963 THROUGH DECEMBER 1965. 

  YOU WILL RECEIVE THIS CHECK WITHIN A FEW DAYS.  AFTER THAT, THE

  REGULAR MONTHLY CHECK FOR $174.60 WILL BE SENT SHORTLY AFTER THE

  MONTH FOR WHICH IT IS PAYABLE. 

     "THE CHILDREN'S CHECK FOR THE PERIOD OF JANUARY 1963 THROUGH

  DECEMBER 1963, (SIC), IN THE AMOUNT OF $3,463.50, WILL BE SENT TO

  YOU SHORTLY.  AFTER THAT, THEIR MONTHLY, REGULAR CHECK FOR

  $103.00 WILL BE SENT TO YOU AS USUAL." 

SPEAKS OF "THE PAST-DUE BENEFITS TO WHICH THE CLAIMANT IS ENTITLED." 
RESPONDENT ARGUES THAT ONLY A PLAINTIFF CAN SATISFY SUCH A DESCRIPTION,
NOT A NONPARTY.  IT IS ALSO URGED THAT DEPENDENTS WHO ARE NOT JOINED AS
PARTIES HAVE NOT RECEIVED A JUDGMENT AND THAT THE BENEFITS ACCRUING TO
THE WIFE AND THE CHILDREN ARE NOT BENEFITS TO WHICH THE HUSBAND, THE
ONLY CLAIMANT, IS "ENTITLED" WITHIN THE MEANING OF SEC. 206(B)(1). 

THAT SEEMS TO US TO BE TOO TECHNICAL A CONSTRUCTION OF THE ACT WHICH
WE NEED NOT ADOPT.  IN THIS INSTANCE, PROOF OF THE HUSBAND'S "CLAIM"
/5/  RESULTS IN A PACKAGE OF BENEFITS TO HIS IMMEDIATE FAMILY; AND
THOSE BENEFITS INURE TO THE BENEFIT OF THE HEAD OF THE FAMILY WHO FILES
THE "CLAIM." 

THE LEGISLATIVE HISTORY OF SEC. 206(B)(1) SPEAKS OF THE DESIRE OF
CONGRESS TO REDUCE "CONTINGENT FEE" ARRANGEMENTS AND TO RESTRICT AN
ATTORNEY'S FEE TO AN AMOUNT "NOT IN EXCESS OF 25 PERCENT OF ACCRUED
BENEFITS."  /6/  WE FIND NOTHING IN THE HISTORY OF SEC. 206(B)(1) THAT
WOULD LIKEWISE RESTRICT THOSE "ACCRUED BENEFITS" TO AMOUNTS OWED THE
CLAIMANT, AS DISTINGUISHED FROM HIS DEPENDENTS, VIZ., THE WIFE AND THE
CHILDREN. 

              REVERSED. 

/1/  42 U.S.C. 406(B)(1) PRESENTLY PROVIDES: 

"WHENEVER A COURT RENDERS A JUDGMENT FAVORABLE TO A CLAIMANT UNDER
THIS SUBCHAPTER WHO WAS REPRESENTED BEFORE THE COURT BY AN ATTORNEY,
THE COURT MAY DETERMINE AND ALLOW AS PART OF ITS JUDGMENT A REASONABLE
FEE FOR SUCH REPRESENTATION, NOT IN EXCESS OF 25 PERCENT OF THE TOTAL
OF THE PAST-DUE BENEFITS TO WHICH THE CLAIMANT IS ENTITLED BY REASON OF
SUCH JUDGMENT, AND THE SECRETARY MAY, NOTWITHSTANDING THE PROVISIONS OF
PAYMENT TO SUCH ATTORNEY OUT OF, AND NOT IN ADDITION TO, THE AMOUNT OF
SUCH PAST-DUE BENEFITS.  IN CASE OF ANY SUCH JUDGMENT, NO OTHER FEE MAY
BE PAYABLE OR CERTIFIED FOR PAYMENT FOR SUCH REPRESENTATION EXCEPT AS
PROVIDED IN THIS PARAGRAPH." 

/2/  "PETITIONER," AS USED IN THIS OPINION, REFERS TO RAYMOND
HOPKINS, THE SOCIAL SECURITY CLAIMANT.  THE INTEREST INVOLVED IN THE
CASE, AS IT REACHES THIS COURT ON THE ISSUE OF THE PROPER AMOUNT OF THE
ATTORNEY'S FEE, IS, HOWEVER, THAT OF HOPKINS' ATTORNEY, ALLEN SHARP. 

/3/  SEE 20 CFR 404.603-404.604.  NOR ARE THE WIFE AND CHILDREN
REQUIRED TO BECOME PARTIES TO PROCEEDINGS ON REVIEW OF AN
ADMINISTRATIVE DETERMINATION.  SEE 42 U.S.C. 405(B) AND (G); AND 20 CFR
404.909-404.910; 404.916-404.919; 404.945; 404.951. 

/4/  THE SOCIAL SECURITY AMENDMENTS OF 1967 CHANGED FORMER SEC.
202(B) TO READ: 

"EXCEPT AS PROVIDED IN SUBSECTION (Q), SUCH WIFE'S INSURANCE BENEFIT
FOR EACH MONTH SHALL BE EQUAL TO WHICHEVER OF THE FOLLOWING IS THE
SMALLER:  (A) ONE-HALF OF THE PRIMARY INSURANCE AMOUNT OF HER HUSBAND
(OR, IN THE CASE OF A DIVORCED WIFE, HER FORMER HUSBAND) FOR SUCH
MONTH, OR (B) $105."  PUB. L. NO. 90-248, SEC. 103 (JAN. 2, 1968). 

/5/  THE RECORD REVEALS THAT PETITIONER APPLIED FOR BENEFITS FOR HIS
TWO CHILDREN IN HIS INITIAL APPLICATION FOR DISABILITY PAYMENTS. 
ALTHOUGH THAT APPLICATION DID NOT ENCOMPASS A CLAIM FOR BENEFITS ON
BEHALF OF HIS WIFE, IT IS MADE CLEAR IN THE APPLICATION THAT HIS WIFE
WAS ALSO APPLYING FOR BENEFITS.  IT DOES NOT APPEAR, HOWEVER, WHETHER
THE SEPARATE APPLICATION FOR WIFE'S BENEFITS WAS FILED BY HER OR BY
PETITIONER ON HER BEHALF.  SEE N. 3, SUPRA.  NO QUESTION IS RAISED
CONCERNING THE PROPRIETY OF THE CLAIMS THAT WERE FILED.  NOR IS THIS A
CASE WHERE ANY QUESTION HAS BEEN RAISED CONCERNING THE RIGHT OF THE
WIFE OR CHILDREN TO BENEFITS.  RATHER, THE WIFE AND CHILDREN HAD BEEN
RECEIVING THEM AS DEPENDENTS OF A DISABLED PERSON UNTIL THEY WERE
TERMINATED BY RESPONDENT'S ERRONEOUS DECISION THAT THE HUSBAND WAS NO
LONGER DISABLED.  WHEN THAT DECISION WAS REVERSED BY THE DISTRICT
COURT, THE ONLY IMPEDIMENT STANDING IN THE WAY OF THE RECEIPT OF PAST
DUE BENEFITS BY THE WIFE AND CHILDREN WAS REMOVED.  IN A REALISTIC
SENSE, THEN, THE ATTORNEY WAS REPRESENTING FULLY THE INTERESTS OF THE
WIFE AND CHILDREN WHEN HE LITIGATED THE QUESTION OF THE HUSBAND'S
DISABILITY. 

/6/  S. REP. NO. 404, PT. I, 89TH CONG., 1ST SESS., 122. 

"IT HAS COME TO THE ATTENTION OF THE COMMITTEE THAT ATTORNEYS HAVE
UPON OCCASION CHARGED WHAT APPEAR TO BE INORDINATELY LARGE FEES FOR
REPRESENTING CLAIMANTS IN FEDERAL DISTRICT COURT ACTIONS ARISING UNDER
THE SOCIAL SECURITY PROGRAM.  USUALLY, THESE LARGE FEES RESULT FROM A
CONTINGENT-FEE ARRANGEMENT UNDER WHICH THE ATTORNEY IS ENTITLED TO A
PERCENTAGE (FREQUENTLY ONE-THIRD TO ONE-HALF) OF THE ACCRUED BENEFITS. 
SINCE LITIGATION NECESSARILY INVOLVES A CONSIDERABLE LAPSE OF TIME, IN
MANY CASES LARGE AMOUNTS OF ACCRUED BENEFITS, AND CONSEQUENTLY LARGE
LEGAL FEES, ARE PAYABLE IF THE CLAIMANT WINS HIS CASE. 

"THE COMMITTEE BILL WOULD PROVIDE THAT WHENEVER A COURT RENDERS A
JUDGMENT FAVORABLE TO A CLAIMANT, IT WOULD HAVE EXPRESS AUTHORITY TO
ALLOW AS PART OF ITS JUDGMENT A REASONABLE FEE, NOT IN EXCESS OF 25
PERCENT OF ACCRUED BENEFITS, FOR SERVICES RENDERED IN CONNECTION WITH
THE CLAIM; NO OTHER FEE WOULD BE PAYABLE.  . . . " 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

AS THE COURT RECOGNIZES, SEC. 206(B)(1) ENTITLES THE ATTORNEY OF A
SOCIAL SECURITY BENEFITS CLAIMANT TO A FEE "NOT IN EXCESS OF 25 PERCENT
OF THE TOTAL OF THE PAST-DUE BENEFITS TO WHICH THE CLAIMANT IS ENTITLED
BY REASON OF SUCH JUDGMENT.  . . . "  THE COURT CHARACTERIZES THE
NORMAL AND NATURAL READING OF THIS LANGUAGE AS "TOO TECHNICAL A
CONSTRUCTION . . . WHICH WE NEED NOT ADOPT."  FROM THE UNDISPUTED FACT
THAT BENEFITS ACCRUING TO THE DEPENDENTS OF A CLAIMANT INURE TO THE
BENEFIT OF THE CLAIMANT AS HEAD OF THE FAMILY, THE COURT SEEMS TO
CONCLUDE THAT IT MAY READ "CLAIMANT" TO MEAN "CLAIMANT AND HIS
DEPENDENTS."  BECAUSE I SEE NO JUSTIFICATION FOR THIS RESULT, EITHER IN
THE LANGUAGE OF THE STATUTE OR ITS HISTORY, I DISSENT. 

RESPECT TO "A CLAIMANT UNDER THIS TITLE WHO WAS REPRESENTED BEFORE THE
COURT BY AN ATTORNEY.  . . . "  THE ATTORNEY MAY RECEIVE NO MORE THAN
25% OF THE BENEFITS PAYABLE TO SUCH A CLAIMANT "BY REASON OF SUCH
JUDGMENT.  . . . "  ONLY PLAINTIFFS CAN MEET THE SEC. 206(B)(1)
DEFINITION OF A "CLAIMANT."  THEREFORE, DEPENDENTS WHO ARE NOT JOINED
AS PARTIES IN A SUIT FOR PAST-DUE BENEFITS ARE NOT "CLAIMANTS," FOR
THEY ARE NOT BEFORE THE COURT, ARE NOT REPRESENTED IN COURT, AND DO NOT
RECEIVE A JUDGMENT.  IN THIS CASE ONLY PETITIONER, AND NOT HIS WIFE AND
CHILDREN, WAS THE PLAINTIFF IN THE COURT BELOW.  AS IS TRUE IN MOST
SUCH CASES, PETITIONER'S WIFE AND CHILDREN WERE DETERMINED IN SEPARATE
ADMINISTRATIVE PROCEEDINGS TO BE DEPENDENTS ELIGIBLE FOR SECONDARY
BENEFITS UNDER SEC. 202.  THEIR ENTITLEMENT OF SEC. 202 BENEFITS SHOULD
PETITIONER BE FOUND ENTITLED TO BENEFITS UNDER SEC. 223 WAS NOT
DISPUTED AND WAS NOT AN ISSUE BEFORE THE COURT BELOW.  SINCE PETITIONER
WAS THE SOLE CLAIMANT BEFORE THE COURT, AND THE ONLY PARTY FOR WHOM HIS
LAWYER PROVIDED REPRESENTATION IN THAT COURT, I CANNOT ESCAPE THE
CONCLUSION THAT THE LAWYER WAS ONLY ENTITLED TO A MAXIMUM OF 25% OF THE
PAST-DUE BENEFITS PAYABLE TO PETITIONER.  THE SITUATION MIGHT WELL BE
DIFFERENT IN A CASE WHERE THE DEPENDENTS WERE ACTIVE PLAINTIFFS BEFORE
THE COURT AND WHERE THE PRIMARY CLAIMANT'S ATTORNEY PROVIDED EFFECTIVE
REPRESENTATION FOR THE SECONDARY CLAIMANTS AS WELL. 

AS THE COURT MAKES CLEAR, THE PURPOSE OF SEC. 206(B)(1) WAS TO
REDUCE CONTINGENT FEE ARRANGEMENTS BY LIMITING THE MAXIMUM FEES
RECOVERABLE BY ATTORNEYS.  THE COURT SOMEHOW CONCLUDES THAT THIS CLEAR
LEGISLATIVE PURPOSE MILITATES FOR A CONSTRUCTION OF THE STATUE WHICH IS
AGAINST ITS CLEAR WORDING AND WHICH HAS THE RESULT OF ONCE AGAIN
PERMITTING ATTORNEYS TO OBTAIN A VERY HIGH PERCENTAGE OF THE BENEFITS
PAYABLE TO SOCIAL SECURITY CLAIMANTS.  THE LEGISLATIVE HISTORY,
HOWEVER, SUPPORTS THE PLAIN LANGUAGE OF THE STATUE.  INDEED, THE COURT
FAILS TO MENTION THAT THIS VERY CASE WAS GENERATED INITIALLY BY A CLAIM
MADE BY PETITIONER'S LAWYER THAT A CONTINGENT FEE CONTRACT SIGNED BY
PETITIONER, WHICH WOULD HAVE GIVEN HIS LAWYER 40% OF THE AWARD, SHOULD
BE GIVEN EFFECT BECAUSE ENTERED INTO PRIOR TO THE PASSAGE OF SEC.
206(B)(1).  IT WAS JUST SUCH CONTINGENT FEES THAT CONGRESS MEANT TO
PROHIBIT.  BY ITS PRESENT RULING THE COURT GIVES MERE LIP SERVICE TO
THE LEGISLATIVE MANDATE WHILE EFFECTIVELY UNDOING IT IN PRACTICE.  FOR
THE FOREGOING REASONS I RESPECTFULLY DISSENT.     ALLEN SHARP AND
HAROLD H. GEARINGER ARGUED THE CAUSE FOR PETITIONER.  WITH THEM ON THE
BRIEFS WAS ISRAEL STEINGOLD. 

HARRIS WEINSTEIN ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL WEISL
AND MORTON HOLLANDER. 
..END :








BANKS V. CHICAGO GRAIN TRIMMERS, 390 U.S. 459 


       BANKS V. CHICAGO GRAIN TRIMMERS ASSN., INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT. 

        NO. 59.  ARGUED JANUARY 17, 1968.-- DECIDED APRIL 1, 1968. 


PETITIONER FILED A CLAIM AGAINST HER LATE HUSBAND'S EMPLOYER FOR
COMPENSATION DEATH BENEFITS UNDER THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT, ALLEGING THAT HIS FALL AT HOME ON JANUARY
30, 1961, FROM WHICH HE LATER DIED, RESULTED FROM A WORK-CONNECTED
INJURY SUSTAINED ON JANUARY 26.  A DEPARTMENT OF LABOR DEPUTY
COMMISSIONER REJECTED THE CLAIM FOR FAILURE TO ESTABLISH A WORK
CONNECTED INJURY.  THEREAFTER, PETITIONER DISCOVERED AN EYEWITNESS TO A
WORK-CONNECTED INJURY TO HER HUSBAND ON JANUARY 30 ABOUT TWO HOURS
BEFORE THE FALL AT HOME WHICH RESULTED IN HIS DEATH, AND FILED A SECOND
COMPENSATION CLAIM AGAINST THE EMPLOYER.  PRIOR TO THE HEARING THEREON,
PETITIONER BROUGHT A WRONGFUL DEATH ACTION AGAINST A THIRD PARTY BASED
ON THE JANUARY 30 INJURY.  THE JURY RETURNED A VERDICT FOR $30,000, BUT
THE JUDGE RULED THAT A MOTION FOR A NEW TRIAL WOULD BE GRANTED UNLESS
PETITIONER CONSENTED TO A REMITTITUR OF $11,000.  WITHOUT CONSULTING
THE EMPLOYER, PETITIONER ACCEPTED THE REMITTITUR AND A JUDGMENT FOR
$19,000 WAS ENTERED.  THE DEPUTY COMMISSIONER, AFTER HEARINGS, ENTERED
AN AWARD FOR PETITIONER IN THE SECOND COMPENSATION CLAIM.  RESPONDENTS
BROUGHT AN ACTION IN THE DISTRICT COURT TO SET ASIDE THE AWARD.  THE
DISTRICT COURT AFFIRMED, BUT THE COURT OF APPEALS REVERSED, HOLDING
THAT THE SECOND COMPENSATION ACTION WAS BARRED BY THE DOCTRINE OF RES
JUDICATA.  HELD: 

1.  THE SECOND CLAIM WAS NOT BARRED BY RES JUDICATA, BUT COMES
WITHIN THE SCOPE OF SEC. 22 OF THE ACT, WHICH PROVIDES FOR REVIEW
"BECAUSE OF A MISTAKE IN A DETERMINATION OF FACT" BY THE DEPUTY
COMMISSIONER "AT ANY TIME PRIOR TO ONE YEAR AFTER REJECTION OF A
CLAIM," AND PERMITS HIM TO "AWARD COMPENSATION" AFTER SUCH REVIEW.  PP.
462-465. 

2.  AN ORDER OF REMITTITUR IS A JUDICIAL DETERMINATION OF
RECOVERABLE DAMAGES, AND PETITIONER'S ACCEPTANCE OF THE REMITTITUR IN
HER THIRD-PARTY LAWSUIT WAS NOT A COMPROMISE WITHIN THE MEANING OF SEC.
33(G) OF THE ACT.  PP. 465-467. 

3.  THE DEPUTY COMMISSIONER'S FINDING THAT THERE WAS A CAUSAL
CONNECTION BETWEEN THE JANUARY 30 WORK-CONNECTED INJURY TO PETITIONER'S
HUSBAND AND HIS FALL AT HOME TWO HOURS LATER WAS SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE AND MUST BE AFFIRMED.  P.
467. 

369 F.2D 344, REVERSED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON JANUARY 30, 1961, SHORTLY AFTER RETURNING HOME FROM WORK, THE
PETITIONER'S HUSBAND SUFFERED A FALL THAT RESULTED IN HIS DEATH OF
FEBRUARY 12.  ON FEBRUARY 20, 1961, THE PETITIONER ON BEHALF OF HERSELF
AND HER THREE MINOR CHILDREN FILED A CLAIM AGAINST HER HUSBAND'S
EMPLOYER, /1/  THE RESPONDENT, FOR COMPENSATION DEATH BENEFITS UNDER
THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT.  44 STAT.
1424, 33 U.S.C. 901-950.  THE PETITIONER ALLEGED THAT HER HUSBAND'S
FALL ON JANUARY 30 HAD RESULTED FROM A WORK-CONNECTED INJURY SUFFERED
ON JANUARY 26.  A HEARING WAS HELD BEFORE A DEPARTMENT OF LABOR DEPUTY
COMMISSIONER; AND ON JUNE 8, 1961, THE DEPUTY COMMISSIONER REJECTED THE
PETITIONER'S CLAIM FOR FAILURE TO ESTABLISH THAT HER HUSBAND'S DEATH
HAD RESULTED FROM A WORK-CONNECTED INJURY.  /2/  THE PETITIONER DID NOT
BRING AN ACTION IN DISTRICT COURT TO SET ASIDE THE DEPUTY
COMMISSIONER'S RULING.  33 U.S.C. 921.  SOME TIME AFTER THE DEPUTY
COMMISSIONER'S DECISION, THE PETITIONER DISCOVERED AN EYEWITNESS TO A
WORK-CONNECTED INJURY SUFFERED BY HER HUSBAND ON JANUARY 30, THE SAME
DAY AS HIS FALL AT HOME.  ON AUGUST 22, 1961.  THE PETITIONER FILED A
SECOND COMPENSATION ACTION AGAINST THE RESPONDENT-- THIS TIME ALLEGING
THAT THE FALL RESULTED FROM AN INJURY SUFFERED ON JANUARY 30. 

ON SEPTEMBER 8, 1961, THE PETITIONER BEGAN A WRONGFUL-DEATH ACTION
IN THE NORTHERN DISTRICT OF ILLINOIS AGAINST A THIRD PARTY, THE NORRIS
GRAIN COMPANY, ALLEGING THAT HER HUSBAND'S FALL RESULTED FROM THE SAME
JANUARY 30 INJURY.  ON MAY 3, 1963, A JURY RENDERED A VERDICT OF
$30,000 FOR THE PETITIONER IN THAT LAWSUIT.  THE GRAIN COMPANY MOVED
FOR A NEW TRIAL, AND THE TRIAL JUDGE RULED THAT THE MOTION WOULD BE
GRANTED UNLESS THE PETITIONER CONSENTED TO A REMITTITUR OF $11,000.  ON
MAY 16, 1963, WITHOUT CONSULTING THE RESPONDENT, THE PETITIONER
ACCEPTED THE REMITTITUR.  JUDGMENT WAS ENTERED FOR $19,000. 

ON AUGUST 29, 1963, A HEARING ON THE PETITIONER'S SECOND
COMPENSATION ACTION COMMENCED.  ON JANUARY 27, 1964, THE DEPUTY
COMMISSIONER ENTERED FINDINGS OF FACT AND AN AWARD FOR THE PETITIONER. 
THE RESPONDENT BROUGHT AN ACTION IN DISTRICT COURT TO SET THE AWARD
ASIDE.  THE DISTRICT COURT AFFIRMED, BUT THE COURT OF APPEALS
REVERSED.  369 F.2D 344.  WE GRANTED CERTIORARI TO CONSIDER QUESTIONS
CONCERNING THE ADMINISTRATION OF THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT.  389 U.S. 813. 

THE COURT OF APPEALS HELD THAT THE PETITIONER'S SECOND COMPENSATION
ACTION WAS BARRED BY THE DOCTRINE OF RES JUDICATA.  THE PETITIONER
CONTENDS THAT THAT DOCTRINE IS DISPLACED IN THIS CASE BY THE OPERATION
OF SEC. 22 OF THE ACT, /3/  WHICH PROVIDES: 

     "UPON HIS OWN INITIATIVE, OR UPON THE APPLICATION OF ANY PARTY

  IN INTEREST, ON THE GROUND OF A CHANGE IN CONDITIONS OR BECAUSE

  OF A MISTAKE IN A DETERMINATION OF FACT BY THE DEPUTY

  COMMISSIONER, THE DEPUTY COMMISSIONER MAY, AT ANY TIME PRIOR TO

  ONE YEAR AFTER THE DATE OF THE LAST PAYMENT OF COMPENSATION,

  WHETHER OR NOT A COMPENSATION ORDER HAS BEEN ISSUED, OR AT ANY

TIME PRIOR TO ONE YEAR AFTER THE REJECTION OF A CLAIM, REVIEW A

  COMPENSATION CASE IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED

  (FOR ORIGINAL CLAIMS), AND IN ACCORDANCE WITH SUCH SECTION ISSUE

  A NEW COMPENSATION ORDER WHICH MAY TERMINATE, CONTINUE,

  REINSTATE, INCREASE, OR DECREASE SUCH COMPENSATION, OR AWARD

  COMPENSATION."  33 U.S.C. 922. 

THE PETITIONER ASSERTS THAT HER SECOND COMPENSATION ACTION CAME
UNDER SEC. 22 BECAUSE IT CHALLENGED A CHALLENGED A "DETERMINATION OF
FACT BY THE DEPUTY COMMISSIONER" IN HER ORIGINAL COMPENSATION ACTION--
NAMELY, THE FINDING THAT HER HUSBAND'S FALL DID NOT RESULT FROM A WORK
CONNECTED INJURY.  THE RESPONDENT ARGUES THAT "A MISTAKE IN A
DETERMINATION OF FACT" IN SEC. 22 REFERS ONLY TO CLERICAL ERRORS AND
MATTERS CONCERNING AN EMPLOYEE'S DISABILITY, NOT TO MATTERS CONCERNING
AN EMPLOYER'S LIABILITY.  CONCEDING THAT NOTHING IN THE STATUTORY
LANGUAGE SUPPORTS THIS READING, THE RESPONDENT CONTENDS THAT THE
LEGISLATIVE HISTORY REVEALS CONGRESS' LIMITED PURPOSE.  /4/ 

AND HARBOR WORKERS' COMPENSATION ACT IN 1927.  44 STAT. 1437.  AT THAT
TIME THE SECTION PROVIDED FOR REVIEW BY THE DEPUTY COMMISSIONER ONLY ON
THE GROUND OF A "CHANGE IN CONDITIONS."  THE DEPUTY COMMISSIONER WAS
AUTHORIZED BY THE SECTION TO "TERMINATE, CONTINUE, INCREASE, OR
DECREASE" THE ORIGINAL COMPENSATION AWARD; REVIEW WAS PERMITTED ONLY
"DURING THE TERM OF AN AWARD." 

FROM 1930 TO 1933, THE UNITED STATES EMPLOYEES' COMPENSATION
COMMISSION, WHICH WAS CHARGED WITH ADMINISTERING THE ACT, RECOMMENDED
IN ITS ANNUAL REPORTS THAT SEC. 22 BE AMENDED TO PERMIT REVIEW BY THE
DEPUTY COMMISSIONER AT ANY TIME.  14TH ANN. REP. OF THE UNITED STATES
EMPLOYEES' COMPENSATION COMMISSION (HEREAFTER USECC) 75 (1930); 15TH
ANN.REP.<USECC 77 (1931); 16TH ANN.REP.USECC 49 (1932); 17TH
ANN.REP.USECC 18 (1933).  /5/  IN 1934 CONGRESS, WHILE NOT ADOPTING THE
RECOMMENDATION ENTIRELY, RESPONDED BY AMENDING SEC. 22 TO PERMIT REVIEW
"ANY TIME PRIOR TO ONE YEAR AFTER THE DATE OF THE LAST PAYMENT OF
COMPENSATION."  /6/  48 STAT. 807.  AT THE SAME TIME CONGRESS ADDED A
SECOND GROUND FOR REVIEW BY THE DEPUTY COMMISSIONER:  "A MISTAKE IN A
DETERMINATION OF FACT."  THE PURPOSE OF THIS AMENDMENT WAS TO "BROADEN
THE GROUNDS ON WHICH A DEPUTY COMMISSIONER CAN MODIFY AN AWARD" BY
ALLOWING MODIFICATION WHERE "A MISTAKE IN A DETERMINATION OF FACT MAKES
SUCH MODIFICATION DESIRABLE IN ORDER TO RENDER JUSTICE UNDER THE ACT." 
S. REP. NO. 588, 73D CONG., 2D SESS. 3-4 (1934); H.R. REP. NO.1244, 73D
CONG., 2D SESS., 4 (1934). 

IN ITS ANNUAL REPORTS FOR 1934-1936, THE COMPENSATION COMMISSION
RECOMMENDED THAT SEC. 22 BE FURTHER AMENDED TO APPLY IN CASES WHERE THE
ORIGINAL COMPENSATION CLAIM IS REJECTED BY THE DEPUTY COMMISSIONER. 
18TH ANN.REP.USECC 38 (1934); 19TH ANN.REP.USECC 49 (1935); 20TH
ANN.REP.USECC 52 (1936).  CONGRESS RESPONDED IN 1938 BY AMENDING SEC.
22 TO PERMIT REVIEW BY THE DEPUTY COMMISSIONER "AT ANY TIME PRIOR TO
ONE YEAR AFTER THE REJECTION OF A CLAIM" AND TO ALLOW THE DEPUTY
COMMISSIONER AFTER SUCH REVIEW TO "AWARD COMPENSATION."  52 STAT.
1167.  THE PURPOSE OF THIS AMENDMFNT WAS TO EXTEND "THE ENLARGED
AUTHORITY THEREIN (1934 AMENDMENT) PROVIDED TO CASES IN WHICH THE
ACTION OF THE DEPUTY COMMISSIONER HAS BEEN A REJECTION OF THE CLAIM." 
S.REP.  NO. 1988, 75TH CONG., 3D SESS., 8 (1938); H.R. REP. NO. 1945,
75TH CONG., 3D SESS., 8 (1938). 

WE FIND NOTHING IN THIS LEGISLATIVE HISTORY TO SUPPORT THE
RESPONDENT'S ARGUMENT THAT A "DETERMINATION OF FACT" MEANS ONLY SOME
DETERMINATION OF FACT AND NOT OTHERS.  THE RESPONDENT POINTS OUT THAT
THE RECOMMENDATIONS OF THE COMPENSATION COMMISSION PRIOR TO THE 1934
AMENDMENT REFERRED TO ANALOGOUS STATE LAWS; BUT THOSE RECOMMENDATIONS
DEALT WITH THE TIME PERIOD IN WHICH REVIEW WAS TO BE AVAILABLE, NOT
WITH THE GROUNDS FOR REVIEW.  THE RESPONDENT HAS REFERRED US TO NO
DECISION, STATE OR FEDERAL, HOLDING THAT A STATUTE PERMITTING REVIEW OF
DETERMINATIONS OF FACT IS LIMITED TO ISSUES RELATING TO DISABILITY.  IN
THE ABSENCE OF PERSUASIVE REASONS TO THE CONTRARY, WE ATTRIBUTE TO THE
WORDS OF A STATUTE THEIR ORDINARY MEANING, /7/  AND WE HOLD THAT THE
PETITIONER'S SECOND COMPENSATION ACTION, FILED A FEW MONTHS AFTER THE
REJECTION OF HER ORIGINAL CLAIM, CAME WITHIN THE SCOPE OF SEC. 22. 
/5/ 

THE RESPONDENT RAISED TWO OTHER ISSUES IN THE COURT OF APPEALS,
WHICH THAT COURT FOUND UNNECESSARY TO REACH.  THESE ISSUES HAVE BEEN
FULLY BRIEFED AND ARGUED IN THIS COURT; AND IN ORDER TO BRING THIS
LITIGATION TO A CLOSE, WE DISPOSE OF THEM HERE. 

ACT PERMITS AN INDIVIDUAL ENTITLED TO COMPENSATION TO SUE A THIRD PARTY
FOR DAMAGES.  33 U.S.C. 933(A).  IF NO SUCH SUIT IS BROUGHT AND
COMPENSATION IS ACCEPTED FROM THE EMPLOYER UNDER AN AWARD, THE RIGHTS
OF THE EMPLOYEE AGAINST THIRD PARTIES ARE ASSIGNED TO THE EMPLOYER.  33
U.S.C. 933(B) AND (C).  IF, AS IN THIS CASE, A SUIT IS BROUGHT AGAINST
A THIRD PARTY, THE EMPLOYER IS LIABLE IN COMPENSATION ONLY TO THE
EXTENT THAT ALLOWABLE COMPENSATION BENEFITS EXCEED THE RECOVERY FROM
THE THIRD PARTY.  33 U.S.C. 933(F).  SECTION 33(G) OF THE ACT FURTHER
PROVIDES: 

     "IF COMPROMISE WITH SUCH THIRD PERSON IS MADE BY THE PERSON

  ENTITLED TO COMPENSATION . . . OF AN AMOUNT LESS THAN THE

COMPENSATION TO WHICH SUCH PERSON OR REPRESENTATIVE WOULD BE

  ENTITLED TO UNDER THIS CHAPTER THE EMPLOYER SHALL BE LIABLE FOR

  COMPENSATION . . . ONLY IF SUCH COMPROMISE IS MADE WITH HIS

  WRITTEN APPROVAL."  33 U.S.C. 933(G). 

THE RESPONDENT CONTENDS THAT THE PETITIONER'S ACCEPTANCE OF THE
JUDICIALLY ORDERED REMITTITUR OF $11,000 IN HER THIRD-PARTY LAWSUIT WAS
A "COMPROMISE" WITHIN THE MEANING OF SEC. 33(G).  WE DISAGREE. 

THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT WAS MODELED
ON THE NEW YORK EMPLOYEE'S COMPENSATION STATUTE.  LAWSON V. SUWANNEE
S.S. CO., 336 U.S. 198, 205; H.R. REP. NO. 1190, 69TH CONG., 1ST SESS.,
2 (1926).  UNDER THE ANALOGOUS PROVISION OF THAT ACT, THE NEW YORK
COURT OF APPEALS HAS HELD THAT A REMITTITUR IS NOT A COMPROMISE. 

  PLAINTIFF'S STIPULATION CONSENTING TO TAKE THAT PORTION OF THE
VERDICT JUDICIALLY DETERMINED

  AS BEING NOT EXCESSIVE, DOES NOT FALL WITHIN ANY RECOGNIZED
MEANING OF THE WORD

  'COMPROMISE.'"  GALLAGHER V. CAROL CONSTRUCTION CO. 272 N.Y. 127,
129, 5 N.E.2D 63, 64. 

AN ORDER OF REMITTITUR IS A JUDICIAL DETERMINATION OF RECOVERABLE
DAMAGES; IT IS NOT AN AGREEMENT AMONG THE PARTIES INVOLVING MUTUAL
CONCESSIONS.  SECTION 33(G) PROTECTS THE EMPLOYER AGAINST HIS
EMPLOYEE'S ACCEPTING TOO LITTLE FOR HIS CAUSE OF ACTION AGAINST A THIRD
PARTY.  THAT DANGER IS NOT PRESENT WHEN DAMAGES ARE DETERMINED, NOT BY
NEGOTIATIONS BETWEEN THE EMPLOYEE AND THE THIRD PARTY, BUT RATHER BY
THE INDEPENDENT EVALUATION OF A TRIAL JUDGE.  CF. BELL V. O'HEARNE, 284
F.2D 777. 

FINALLY, THE RESPONDENT ATTACKS THE DEPUTY COMMISSIONER'S FINDING OF
FACT THAT THERE WAS A CAUSAL CONNECTION BETWEEN THE WORK-CONNECTED
INJURY SUFFERED BY THE PETITIONER'S HUSBAND ON JANUARY 30 AND HIS FALL
AT HOME SOME TWO HOURS LATER.  THE DEPUTY COMMISSIONER'S FINDING MUST
BE AFFIRMED IF SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD
CONSIDERED AS A WHOLE.  O'LEARY V. BROWN-PACIFIC-MAXON, INC., 340 U.S.
504.  THE DISTRICT COURT HELD THAT THE DEPUTY COMMISSIONER'S FINDING
WAS SUPPORTED BY SUBSTANTIAL EVIDENCE, AND WE AGREE.  WHILE SOME OF THE
TESTIMONY OF THE PETITIONER'S MEDICAL EXPERT WAS ARGUABLY INCONSISTENT
WITH OTHER PARTS OF HIS TESTIMONY, IT WAS WITHIN THE PROVINCE OF THE
DEPUTY COMMISSIONER TO CREDIT PART OF THE WITNESS'  TESTIMONY WITHOUT
ACCEPTING IT ALL. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  THE PETITIONER'S HUSBAND HAD WORKED FOR THE CHICAGO GRAIN
TRIMMERS ASSOCIATION, INC. (HEREAFTER RESPONDENT) AS A GRAIN TRIMMER
SINCE 1934.  GRAIN TRIMMERS LOAD AND UNLOAD GRAIN-CARRYING BARGES AND
VESSELS. 

/2/  IT IS NOT ENTIRELY CLEAR FROM THE DEPUTY COMMISSIONER'S
DECISION WHETHER IT RESTED ON INSUFFICIENT PROOF OF A CAUSAL NEXUS
BETWEEN THE JANUARY 26 INJURY AND THE JANUARY 30 FALL OR ON
INSUFFICIENT PROOF THAT THE ALLEGED JANUARY 26 INJURY IN FACT OCCURRED
AT ALL. 

/3/  THE PETITIONER ALSO CONTENDS THAT (1) THE DOCTRINE OF RES
JUDICATA DOES NOT APPLY TO ADMINISTRATIVE COMPENSATION CASES GENERALLY,
AND (2) IF RES JUDICATA DOES APPLY, HER SECOND ACTION DID NOT ARISE OUT
OF THE SAME CAUSE OF ACTION AS DID HER FIRST.  WE DO NOT REACH THESE
CONTENTIONS. 

/4/  THE RESPONDENT DOES NOT RELY ON EITHER OF THE REASONS GIVEN BY
THE COURT OF APPEALS FOR HOLDING SEC. 22 INAPPLICABLE:  (1) THAT THE
DEPUTY COMMISSIONER WAS NOT AWARE OF BANKS' JANUARY 30 INJURY UNTIL
MORE THAN ONE YEAR AFTER THE PETITIONER'S ORIGINAL CLAIM WAS REJECTED,
AND (2) THAT THE PETITIONER'S SECOND COMPENSATION ACTION DID NOT
DISPUTE THE ORIGINAL FINDINGS OF FACT OF THE DEPUTY COMMISSIONER.  THE
PETITIONER FILED HER SECOND COMPENSATION ACTION WITHIN A FEW MONTHS
AFTER THE ORIGINAL CLAIM WAS REJECTED; IT IS IRRELEVANT THAT THE
HEARING OCCURRED MORE THAN A YEAR LATER.  CANDADO STEVEDORING CORP. V.
WILLARD, 185 F.2D 232.  THE QUESTION OF THE CAUSATION OF THE
PETITIONER'S HUSBAND'S FALL IS OBVIOUSLY ONE OF FACT, CF. O'LEARY V.
BROWN-PACIFIC-MAXON, INC., 340 U.S. 504; THE CASE CITED BY THE COURT OF
APPEALS, FLAMM V. HUGHES, 329 F.2D 378, IS UTTERLY INAPPOSITE SINCE IT
DEALT WITH THE POSSIBILITY OF LITIGATING A QUESTION OF CONSTITUTIONAL
LAW IN A SEC. 22 PROCEEDING. 

/5/  IN 1928 THE COMMISSION RECOMMENDED THAT "AN AMENDMENT BE
ADOPTED WHICH WILL GIVE DEPUTY COMMISSIONERS THE CONTINUING AUTHORITY
TO REOPEN CASES THAT IS USUALLY CONFERRED UPON COMPENSATION BOARDS"
BECAUSE "SITUATIONS ARE CONTINUALLY ARISING IN WHICH THE ACTION TAKEN
BY A DEPUTY COMMISSIONER IN CORRECTING AN ERROR IN AN ORDER MAY GIVE
RISE TO CONTROVERSY AND RESULT IN A FAILURE TO DO JUSTICE TO EITHER THE
EMPLOYER OR THE EMPLOYEE."  12TH ANN.REP.USECC 40 (1928).  IT IS NOT AT
ALL CLEAR JUST WHAT THE COMMISSION THUS MEANT TO RECOMMEND.  IN ANY
EVENT THIS RECOMMENDATION WAS NOT REPEATED IN LATER ANNUAL REPORTS, AND
THERE IS NO EVIDENCE THAT CONGRESS AT ANY TIME SOUGHT TO ADOPT IT.
(COMPARE THE COMMITTEE REPORTS TO THE 1934 AMENDMENT TO SEC. 22, WHICH
CONTAIN SPECIFIC REFERENCES TO THE 17TH ANN.REP.USECC (1933).  S. REP.
NO. 588, 73D CONG. 2D SESS., 3 (1934); H.R. REP. NO. 1244, 73D CONG.,
2D SESS., 4 (1934).     /6/  CONGRESS ALSO ADDED AUTHORITY FOR THE
DEPUTY COMMISSIONER TO "REINSTATE" COMPENSATION AS WELL AS TO
TERMINATE, CONTINUE, INCREASE, OR DECREASE IT. 

/7/  IT IS TRUE THAT THE STATUTE AS ENACTED IN 1927, PERMITTING
REVIEW ONLY "ON THE GROUND OF A CHANGE IN CONDITIONS," MIGHT HAVE
SUPPORTED A DISTINCTION BETWEEN ISSUES OF DISABILITY AND LIABILITY. 
BUT AFTER THE 1934 AND 1938 AMENDMENTS, PERMITTING REVIEW OF "A
DETERMINATION OF FACT" AND AUTHORIZING THE DEPUTY COMMISSIONER TO
"AWARD COMPENSATION" EVEN WHERE THE ORIGINAL CLAIM IS REJECTED, THE
ASSERTED DISTINCTION CAN DRAW NO SUPPORT FROM THE STATUTORY LANGUAGE. 

/8/  IT IS IRRELEVANT FOR PURPOSES OF SEC. 22 THAT THE PETITIONER
LABELED HER SECOND ACTION A CLAIM FOR COMPENSATION RATHER THAN AN
APPLICATION FOR REVIEW SO LONG AS THE ACTION IN FACT COMES WITHIN THE
SCOPE OF THE SECTION.  CANDADO STEVEDORING CORP. V. WILLARD, 185 F.2D
232. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

HAROLD A. LIEBENSON ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WAS EDWARD G. RASZUS. 

MARK A. BRAUN ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WAS THOMAS P. SMITH. 
..END :




PEORIA TRIBE V. UNITED STATES, 390 U.S. 468 


       PEORIA TRIBE OF INDIANS OF OKLAHOMA ET AL. V. UNITED

           STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

        NO. 219.  ARGUED JANUARY 15, 1968.-- DECIDED APRIL 1,
1968. 


PETITIONER INDIAN TRIBE AND THE UNITED STATES ENTERED INTO A TREATY
IN 1854, PURSUANT TO WHICH CERTAIN TRIBAL LANDS WERE TO BE SOLD AT
PUBLIC AUCTION BY THE UNITED STATES FOR THE TRUBE'S BENEFIT.  THE
PRESIDENT COULD BE ANY TIME PAY TO THE TRIBE ANY OR ALL OF THE
PROCEEDS, WITH THE BALANCE TO BE INVESTED IN BONDS, "THE INTEREST TO BE
ANNUALLY PAID" TO THE TRIBE.  THE INDIAN CLAIMS COMMISSTON FOUND THAT
THE UNITED STATES VIOLATED THE TREATY BY SELLING MOST OF THE LANDS IN
1857 BY PRIVATE SALES AT PRICES LOWER THAN WOULD HAVE PREVATLED AT
PUBLIC AUCTION, AND FOUND THE DIFFERENCE TO BE $172,726.  PETITIONER
SOUGHT REVIEW IN THE COURT OF CLAIMS ON THE ISSUE OF THE MEASURE OF ITS
DAMAGES FOR THE TREATY'S VIOLATION, CONTENDING THAT THE UNITED STATES
IS LIABLE FOR THAT SUM PLUS THE AMOUNT IT WOULD HAVE PRODUCED IF
INVESTED AND THE INCOME "ANNUALLY PAID."  THE COURT OF CLAIMS REJECTED
THIS CONTENTION.  HELD:  THE GOVERNMENT'S OBLIGATION UNDER THE TREATY
WAS TO INVEST THE SUM AND TO PAY ITS ANNUAL INCOME TO THE TRIBE "UNTIL
THE MONEY IS PAID OVER," AND THE CASE IS REMANDED TO THE COURT OF
CLAIMS FOR FURTHER REMAND TO THE INDIAN CLAIMS COMMISSION TO DETERMINE,
NOT INTEREST ON THE CLAIM, BUT THE MEASURE OF DAMAGES RESULTING FROM
THE GOVERNMENT'S FAILURE TO INVEST THE PROCEEDS THAT WOULD HAVE BEEN
RECEIVED HAD THE TREATY NOT BEEN VIOLATED.  PP. 471-473. 

177 CT.CL. 762, 369 F.2D 1001, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON MAY 30, 1854, THE PEORIA TRIBE OF INDIANS OF OKLAHOMA, PETITIONER,
/1/  AND THE UNITED STATES, RESPONDENT, ENTERED INTO A TREATY UNDER
WHICH THE TRIBE RESERVED A PORTION OF ITS LNDS AND CEDED THE REMAINDER,
AMOUNTING TO SOME 208,585 ACRES, TO BE SOLD AT PUBLIC AUCTION BY THE
UNITED STATES FOR THE TRIBE'S BENEFIT.  10 STAT. 1082.  THIS WAS
PROVIDED FOR IN ARTICLE 4 OF THE TREATY: 

"(THE PRESIDENT SHALL IMMEDIATELY CAUSE THE RESIDUE OF THE CEDED
LANDS TO BE OFFERED FOR SALE AT PUBLIC AUCTION . . . AND IN
CONSIDERATION OF THE CESSIONS HEREINBEFORE MADE, THE UNITED STATES
AGREE TO PAY TO THE SAID INDIANS, AS HEREINAFTER PROVIDED, ALL THE
MONEYS ARISING FROM THE SALES OF SAID LANDS AFTER DEDUCTING THEREFROM
THE ACTUAL COST OF SURVEYING, MANAGING, AND SELLING THE SAME." 

ARTICLE 7 OF THE TREATY FURTHER PROVIDED: 

"AND AS THE AMOUNT OF THE ANNUAL RECEIPTS FROM THE SALES OF THEIR
LANDS, CANNOT NOW BE ASCERTAINED, IT IS AGREED THAT THE PRESIDENT MAY,
FROM TIME TO TIME, AND UPON CONSULTATION WITH SAID INDIANS, DETERMINE
HOW MUCH OF THE NET PROCEEDS OF SAID SALES SHALL BE PAID THEM, AND HOW
MUCH SHALL BE INVESTED IN SAFE AND PROFITABLE STOCKS, THE INTEREST TO
BE ANNUALLY PAID TO THEM, OR EXPENDED FOR THEIR BENEFIT AND
IMPROVEMENT." 

IN THIS CASE THE INDIAN CLAIMS COMMISSION FOUND THAT THE UNITED
STATES VIOLATED THE TREATY IN 1857 BY SELLING MOST OF THE CEDED LANDS,
SOME 207,759 ACRES, NOT BY PUBLIC AUCTION, BUT BY PRIVATE SALES AT
APPRAISED PRICES LOWER THAN WOULD HAVE PREVAILED AT PUBLIC AUCTION. 
THE COMMISSION FOUND THAT THE UNITED STATES THUS RECEIVED FOR THE LANDS
$172,726 LESS THAN IT WOULD HAVE RECEIVED IF THE SALES HAD BEEN MADE AS
REQUIRED BY THE TREATY.  15 IND.L.COMM.  123.  NEITHER PARTY QUESTIONS
THESE FINDINGS. 

THE PETITIONER, HOWEVER, SOUGHT REVIEW IN THE COURT OF CLAIMS UPON
THE ISSUE OF THE MEASURE OF ITS DAMAGES FOR THE TREATY'S VIOLATION--
CONTENDING THAT BY VIRTUE OF ARTICLE 7 OF THE TREATY, THE UNITED STATES
IS LIABLE NOT ONLY FOR THE $172,726, BUT IN ADDITION FOR THE AMOUNT
THAT THAT SUM WOULD HAVE PRODUCED IF "INVESTED IN SAFE AND PROFITABLE
STOCKS, THE INTEREST TO BE ANNUALLY PAID . . . "  /2/  THE COURT OF
CLAIMS, TWO JUDGES DISSENTING, REJECTED THIS CONTENTION, 177 CT.CL.
762, 369 F.2D 1001, AND WE GRANTED CERTIORARI TO CONSIDER IT.  389 U.S.
814. 

IN SUPPORTING THE JUDGMENT OF THE COURT OF CLAIMS, THE RESPONDENT
RELIFS HEAVILY UPON THE GENERAL RULE THAT THE UNITED STATES IS NOT
LIABLE FOR INTEREST ON CLAIMS AGAINST IT.  /3/  THIS GENERAL RULE, AS
THE RESPONDENT POINTS OUT HAS BEEN HELD TO BE FULLY APPLICABLE TO THE
CLAIMS OF INDIAN TRIBES.  /4/  BUT THIS IS NOT A CASE WHERE THE COURT
IS ASKED TO EXERCISE "THE POWER TO AWARD INTEREST AGAINST THE UNITED
STATES," UNITED STATES V. N.Y. RAYON IMPORTING CO., 329 U.S. 654, 663. 
THE ISSUE, RATHER, CONCERNS THE MEASURE OF DAMAGES FOR THE TREATY'S
VIOLATION IN THE LIGHT OF THE GOVERNMENT'S OBLIGATIONS UNDER THAT
TREATY. 

UNDER ARTICLE 7 OF THE TREATY, THE UNITED STATES COULD AT ANY TIME
PAY TO THE TRIBE ALL OR ANY PART OF THE PROCEEDS RECEIVED FROM THE
SALES OF THE LANDS AT PUBLIC AUCTION.  BUT UNTIL THE PROCEEDS WERE PAID
OVER, THE UNITED STATES WAS OBLIGATED TO INVEST THEM AND PAY THE ANNUAL
INCOME TO THE TRIBE.  THE UNITED STATES WAS NOT FREE MERELY TO HOLD THE
PROCEEDS WITHOUT INVESTING THEM.  THE ISSUE IN THIS CASE, THEREFORE, IS
WHETHER THE OBLIGATION OF THE UNITED STATES TO INVEST UNPAID PROCEEDS
APPLIES TO PROCEEDS WHICH, BY VIRTUE OF THE UNITED STATES' VIOLATION OF
THE TREATY, WERE NEVER IN FACT RECEIVED. 

OUR DECISION IS LARGELY CONTROLLED BY UNITED STATES V. BLACKFEATHER,
155 U.S. 180.  THERE AN 1831 TREATY OBLIGATED THE UNITED STATES TO SELL
CERTAIN INDIAN LANDS AT PUBLIC AUCTION AND TO PLACE ALL PROCEEDS IN
EXCESS OF A STATED AMOUNT IN A FUND FOR THE BENEFIT OF THE INDIANS. 
THE FUND COULD BE DISSOLVED AND PAID OVER TO THE INDIANS "DURING THE
PLEASURE OF CONGRESS," BUT UNTIL ITS DISSOLUTION, THE UNITED STATES WAS
OBLIGATED TO PAY THE INDIANS AN "ANNUITY" UPON THE RETAINED FUND.  THE
LANDS WERE SOLD AND THE PROCEEDS WERE PAID TO THE INDIANS IN 1852.  IN
1893 THE COURT OF CLAIMS HELD THAT THE UNITED STATES HAD VIOLATED THE
TREATY BY SELLING SOME OF THE LANDS AT PRIVATE SALES RATHER THAN AT
PUBLIC AUCTION, RESULTING IN THE REALIZATION OF LOWER PRICES.  /5/
THIS COURT HELD THAT THE OBLIGATION TO PAY THE "ANNUITY" APPLIED TO THE
DIFFERENTIAL THAT WOULD HAVE BEEN RECEIVED IF THE LANDS HAD BEEN SOLD
AT PUBLIC AUCTION IN ACCORD WITH THE TREATY, AND THAT THIS OBLIGATION
EXTENDED BEYOND THE DISSOLUTION OF THE FUND BY CONGRESS IN 1852: 

     "WHILE THE TREATY BOUND THE GOVERNMENT TO PAY A FIVE PER CENT

  ANNUITY UNTIL THE DISSOLUTION OF THE FUND, WHICH DISSOLUTION TOOK

  PLACE SEPTEMBER 28, 1852, WHEN THE SUM OF $37,180.58, THE AMOUNT

  OF THE FUND RESULTING FROM ACTUAL SALES, WAS PAID OVER TO THE

  CHIEFS OF THE TRIBE, THIS DISSOLUTION TERMINATED THE STIPULATION

  FOR THE ANNUITY ONLY PRO TANTO.  IF THE GOVERNMENT HAD ORIGINALLY

  ACCOUNTED FOR THE WHOLE AMOUNT FOR WHICH THE COURT BELOW HELD IT

  TO BE LIABLE, IT WOULD HAVE PAID FIVE PER CENT UPON THIS AMOUNT

  UNTIL THE WHOLE FUND WAS PAID OVER.  THE FUND AS TO THIS AMOUNT

  BEING NOT YET DISTRIBUTED, THE OBLIGATION TO PAY THE FIVE PER

  CENT ANNUITY CONTINUES UNTIL THE MONEY IS PAID OVER . . . "  155

  U.S.,AT 193. 

SIMILARLY IN THE CASE BEFORE US, WE HOLD THAT THE OBLIGATION TO
?NVEST THE $172,726 AND TO PAY ITS ANNUAL INCOME TO THE TRIBE
"CONTINUES UNTIL THE MONEY IS PAID OVER."  CF.  UNITED STATES V. MILLE
LAC CHIPPEWAS, 229 U.S. 498.  AS THE DISSENTERS IN THE COURT OF CLAIMS
RIGHTLY POINTED OUT,

"INDIAN TREATIES 'ARE NOT TO BE INTERPRETED NARROWLY, AS SOMETIMES
MAY BE WRITINGS EXPRESSED IN WORDS OF ART EMPLOYED BY CONVEYANCERS, BUT
ARE TO BE CONSTRUED IN THE SENSE IN WHICH NATURALLY THE INDIANS WOULD
UNDERSTAND THEM.'  UNITED STATES V. SHOSHONE TRIBE, 304 U.S. 111, 116
(1938).  '(THEY ARE TO BE CONSTRUED, SO FAR AS POSSIBLE, IN THE SENSE
IN WHICH THE INDIANS UNDERSTOOD THEM, AND "IN A SPIRIT WHICH GENEROUSLY
RECOGNIZES THE FULL OBLIGATION OF THIS NATION TO PROTECT THE INTERESTS
OF A DEPENDENT PEOPLE."  TULEE V. WASHINGTON, 315 U.S. 681, 684-85 . .
. '"  177 CT.CO.,AT 771, 369 F.2D, AT 1006-1007. 

SINCE THE INDIAN CLAIMS COMMISSION AND THE COURT OF CLAIMS
ERRONEOUSLY HELD THAT THE UNITED STATES IS NOT LIABLE FOR ITS FAILURE
TO INVEST THE PROCEEDS THAT WOULD HAVE BEEN RECEIVED HAD THE UNITED
STATES NOT VIOLATED THE TREATY, THEY HAD NO OCCASION TO DETERMINE THE
MEASURE OF DAMAGES RESULTING FROM THIS LIABILITY.  ACCORDINGLY, WE
REMAND THIS CASE TO THE COURT OF CLAIMS FOR FURTHER REMAND TO THE
INDIAN CLAIMS COMMISSION IN ORDER TO DETERMINE THAT QUESTION.  /6/ 

THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  THE SINGULAR FORM IS USED THROUGHOUT FOR THE PETITIONERS, WHO
WERE PREVIOUSLY KNOWN AS THE CONFEDERATED TRIBE OF THE PEORIA,
KASKASKIA, WEA AND PIANKESHAW INDIANS. 

/2/  THE PARTIES ARE AGREED THAT "THE TERMS 'STOCKS' AND 'INTEREST'
SHOULD BE UNDERSTOOD TO TNCLUDE BONDS OR OTHER SECURITIES AND DIVIDENDS
OR OTHER INCOME BONDS OR OTHER SECURITIES AND DIVIDENDS OR OTHER
INCOME, RESPECTIVELY."  RESPONDENT'S BRIEF 11, N. 4.  THE TERM "STOCKS"
WAS USED IN OTHER TREATIES OF THE PERIOD TO REFER TO WHAT WOULD TODAY
BE CALLED BONDS.  SEE, E.G., CHEROKEE NATION V. UNITED STATES, 270 U.S.
476, 492.  SEE ALSO REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS,
NOVEMBER 26, 1853, H. DOC. NO. 1, 33D CONG., 1ST SESS., 243, 263.  THE
INVESTMENTS ACTUALLY MADE PURSUANT TO THE TREATY IN THE PRESENT CASE
WERE PURCHASES OF STATE BONDS. 

/3/  SEE, E.G., UNITED STATES V. THAYER-WEST POINT HOTEL CO., 329
U.S. 585; UNITED STATES V. N.Y. RAYON IMPORTING CO., 329 U.S. 654;
UNITED STATES V. GOLTRA, 312 U.S. 203. 

/4/  SEE, E.G., UNITED STATES V. ALCEA BAND OF TILLAMOOKS, 341 U.S.
48; UNITED STATES V. OMAHA TRIBE OF INDIANS, 253 U.S. 275, 283;
CONFEDERATED SALISH & KOOTENAI TRIBES V. UNITED STATES, 175 CT.CL.
451. 

/5/  BLACKFEATHER V. UNITED STATES, 28 CT.CL. 447. 

/6/  THE RESPONDENT DID NOT BRIEF OR ARGUE THE QUESTION OF HOW TO
MEASURE THESE DAMAGES.  THE PETITIONER SUGGESTED THAT THESE DAMAGES
MIGHT BE MEASURED BY LOOKING TO THE RATE OF INTEREST WHICH THE UNITED
STATES HAS PAID ON INDIAN FUNDS OVER THE SAME PERIOD, ARGUING FOR THIS
APPROACH BY ANALOGY TO PRIVATE TRUST LAW.  THE PETITIONER ALSO POINTS
OUT THAT CONGRESS AT ONE TIME CONSIDERED THE UNITED STATES' TREATY
OBLIGATIONS TO "INVEST IN SAFE AND PROFITABLE STOCKS" SATISFIED BY AN
ANNUAL APPROPRIATION FOR THE INDIANS OF AN AMOUNT EQUIVALENT TO AN
INTEREST PAYMENT.  SEE REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS,
NOVEMBER 30, 1852, S. DOC. NO. 1, 32D CONG., 2D SESS., 293, 300-301;
REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS, NOVEMBER, 26, 1853,
SUPRA, N. 2. 

BECAUSE THE UNITED STATES IS NOT LIABLE FOR INTEREST ON JUDGMENTS IN
THE ABSENCE OF AN EXPRESS CONSENT THERETO, IT CANNOT BE LIABLE FOR
INTEREST ON THE ANNUAL INCOME PAYMENTS NOT MADE.  THEREFORE, IF AN
INTEREST RATE MEASURE IS ADOPTED BY THE COMMISSION, IT MUST BE SIMPLE
AND NOT COMPOUND INTEREST. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

JACK JOSEPH ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEFS WAS LOUIS L. ROCHMES. 

ROBERT S. RIFKIND ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY
GENERAL HARRISON AND ROGER P. MARQUIS. 
..END :



AVERY V. MIDLAND COUNTY, 390 U.S. 474 


       AVERY V. MIDLAND COUNTY ET AL.

        CERTIORARI TO THE SUPREME COURT OF TEXAS. 

        NO. 39.  ARGUED NOVEMBER 14, 1967.-- DECIDED APRIL 1,
1968. 


THE MIDLAND COUNTY, TEXAS, COMMISSIONERS COURT IS THE GOVERNING BODY
FOR THAT COUNTY, AND LIKE OTHER SUCH BODIES IS ESTABLISHED BY THE
STATE'S CONSTITUTION AND STATUTES.  IT CONSISTS OF FIVE MEMBERS-- A
COUNTY JUDGE, ELECTED AT LARGE FROM THE ENTIRE COUNTY, AND FOUR
COMMISSIONERS, ONE ELECTED FROM EACH OF THE FOUR DISTRICTS (PRECINCTS)
INTO WHICH THE COUNTY IS DIVIDED.  COMMISSIONERS COURTS EXERCISE BROAD
GOVERNMENTAL FUNCTIONS IN THE O0NTIES INCLUDING THE SETTING OF TAX
RATES, EQUALIZATION OF ASSESSMENTS, ISSUANCE OF BONDS, AND ALLOCATION
OF FUNDS; AND THEY HAVE WIDE DISCRETION OVER EXPENDITURES.  ONE
DISTRICT OF MIDLAND COUNTY, WHICH INCLUDES ALMOST ALL THE CITY OF
MIDLAND, HAD A POPULATION OF 67,906, ACCORDING TO 1963 ESTIMATES.  THE
OTHERS, ALL RURAL AREAS, HAD POPULATIONS RESPECTIVELY, OF ABOUT 852;
414; AND 828.  IN THIS ACTION CHALLENGING THE COUNTY'S DISTRICTING
PETITIONER ALLEGED THAT THE GROSS DISPARITY IN POPULATION DISTRIBUTION
AMONG THE FOUR DISTRICTS VIOLATED THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  THREE OF THE FOUR COMMISSIONERS TESTIFIED AT
TRIAL THAT POPULATION WAS NOT A MAJOR FACTOR IN THE DISTRICTING
PROCESS.  THE TRIAL COURT RULED FOR PETITIONER THAT EACH DISTRICT UNDER
THE STATE'S CONSTITUTIONAL APPORTIONMENT STANDARD SHOULD HAVE
"SUBSTANTIALLY THE SAME NUMBER OF PEOPLE."  AN INTERMEDIATE APPELLATE
COURT REVERSED.  THE STATE SUPREME COURT REVERSED THAT JUDGMENT,
HOLDING THAT UNDER THE FEDERAL AND STATE CONSTITUTIONS THE DISTRICTTNG
SCHEME WAS IMPERMISSIBLE "FOR THE REASONS STATED BY THE TRIAL COURT." 
IT HELD, HOWEVER, THAT THE WORK ACTUALLY DONE BY THE COUNTY
COMMISSIONERS "DISPROPORTIONATELY CONCERNS THE RURAL AREAS" AND THAT
SUCH FACTORS AS "NUMBER OF QUALIFIED VOTERS, LAND AREAS, GEOGRAPHY,
MILES OF COUNTY ROADS, AND TAXABLE VALUES" COULD JUSTIFY APPORTIONMENT
OTHERWISE THAN ON A BASIS OF SUBSTANTIALLY EQUAL POPULATIONS.  HELD:
LOCAL UNITS WITH GENERAL GOVERNMENTAL POWERS OVER AN ENTIRE GEOGRAPHIC
AREA MAY NOT, CONSISTENTLY WITH THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, BE APPORTIONED AMONG SINGLE-MEMBER DISTRICTS OF
SUBSTANTIALLY UNEQUAL POPULATION.  REYNOLDS V. SIMS, 377 U.S. 533
(1964).  PP. 478-486. 

(A) THE EQUAL PROTECTION CLAUSE REACHES THE EXERCISE OF STATE POWER,
WHETHER EXERCISED BY THE STATE OR A POLITICAL SUBDIVISION.  P. 479. 

(B) ALTHOUGH THE STATE LEGISLATURE MAY ITSELF BE PROPERLY
APPORTIONED THE FOURTEENTH AMENDMENT REQUIRES THAT CITIZENS NOT BE
DENIED EQUAL REPRESENTATION IN POLITICAL SUBDIVISIONS WHICH ALSO HAVE
BROAD POLICY-MAKING FUNCTIONS.  P. 481. 

(C) THE COMMISSIONERS COURT PERFORMS SOME FUNCTIONS NORMALLY THOUGHT
OF AS "LEGISLATIVE," AND OTHERS TYPICALLY CHARACTERIZED IN OTHER TERMS;
BUT, REGARDLESS OF THE LABELS, THIS BODY HAS THE POWER TO MAKE A LARGE
NUMBER OF DECISIONS HAVING A BROAD IMPACT ON ALL THE CITIZENS OF THE
COUNTY.  PP. 482-483. 

(D) THOUGH THE MIDLAND COUNTY COMMISSIONERS MAY CONCENTRATE THEIR
ATTENTION ON RURAL ROADS, THEIR DECISIONS ALSO AFFECT CITIZENS IN THE
CITY OF MIDLAND.  P. 484. 

406 S.W.2D 422, VACATED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A TAXPAYER AND VOTER IN MIDLAND COUNTY, TEXAS, SOUGHT A
DETERMINATION BY THIS COURT THAT THE EXAS SUPREME COURT ERRED IN
CONCLUDING THAT SELECTION OF THE MIDLAND COUNTY COMMISSIONERS COURT
FROM SINGLE-MEMBER DISTRICTS OF SUBSTANTIALLY UNEQUAL POPULATION DID
NOT NECESSARILY VIOLATE THE FOURTEENTH AMENDMENT.  WE GRANTED REVIEW,
388 U.S. 905 (1967), BECAUSE APPLICATION OF THE ONE MAN, ONE VOTE
PRINCIPLE OF REYNOLDS V. SIMS, 377 U.S. 533 (1964), TO UNITS OF LOCAL
GOVERNMENT IS OF BROAD PUBLIC IMPORTANCE.  WF HOLD THAT PETITIONER, AS
A RESIDENT OF MIDLAND COUNTY, AS A RIGHT TO A VOTE FOR THE
COMMISSIONERS COURT OF SUBSTANTIALLY EQUAL WEIGHT TO THE VOTE OF EVERY
OTHER RESIDENT. 

MIDLAND COUNTY HAS A POPULATION OF ABOUT 70,000.  THE COMMISSIONERS
COURT IS COMPOSED OF FIVE MEMBERS.  ONE, THE COUNTY JUDGE, IS ELECTED
AT LARGE FROM THE ENTIRE COUNTY, AND IN PRACTICE CASTS A VOTE ONLY TO
BREAK A TIE.  THE OTHER FOUR ARE COMMISSIONERS CHOSEN FROM DISTRICTS. 
THE POPULATION OF THOSE DISTRICTS, ACCORDING TO THE 1963 ESTIMATES THAT
WERE RELIED UPON WHEN THIS CASE WAS TRIED, WAS RESPECTIVELY 67,906;
852; 414; AND 828.  THIS VAST IMBALANCE RESULTED FROM PLACING IN A
SINGLE DISTRICT VIRTUALLY THE ENTIRE CITY OF MIDLAND, MIDLAND COUNTY'S
ONLY URBAN CENTER, IN WHICH 95% OF THE COUNTY'S POPULATION RESIDES. 

THE COMMISSIONERS COURT IS ASSIGNED BY THE TEXAS CONSTITUTION AND BY
VARIOUS STATUTORY ENACTMENTS WITH A VARIETY OF FUNCTIONS.  ACCORDING TO
THE COMMENTARY TO VERNON'S TEXAS STATURES, THE COURT: 

"IS THE GENERAL GOVERNING BODY OF THE COUNTY.  IT ESTABLISHES A
COURTHOUSE AND JAIL, APPOINTS NUMEROUS MINOR OFFICIALS SUCH AS THE
COUNTY HEALTH OFFICER, FILLS VACANCIES IN THE COUNTY OFFICES, LETS
CONTRACTS IN THE NAME OF THE COUNTY, BUILDS ROADS AND BRIDGES,
ADMINISTERS THE COUNTY'S PUBLIC WELFARE SERVICES, PERFORMS NUMEROUS
DUTIES INR GARD TO ELECTIONS, SETS THE COUNTY TAX RATE, ISSUES BONDS,
ADOPTS THE COUNTY BUDGET, AND SERVES AS A BOARD OF EQUALIZATION FOR TAX
ASSESSMENTS."  /1/ THE COURT IS ALSO AUTHORIZED, AMONG OTHER
RESPONSIBILITIES, TO BUILD AND RUN A HOSPITAL, TEX. REV. CIV. STAT.
ANN., ART. 4492 (1966), AN AIRPORT, ID., ART. 2351 (1964), AND
LIBRARIES, ID., ART. 1677 (1962).  IT FIXES BOUNDARIES OF SCHOOL
DISTRICTS WITHIN THE COUNTY, ID., ART. 2766 (1965), MAY ESTABLISH A
REGIONAL PUBLIC HOUSING AUTHORITY, ID., ART. 1269K, SEC. 23A (1963),
AND DETERMINES THE DISTRICTS FOR ELECTION OF ITS OWN MEMBERS, TEX.
CONST., ART. V, SEC. 18. 

PETITIONER SUED THE COMMISSIONERS COURT AND ITS MEMBERS IN THE
MIDLAND COUNTY DISTRICT COURT, ALLEGING THAT THE DISPARITY IN DISTRICT
POPULATION VIOLATED THE FOURTEENTH AMENDMENT AND THAT HE HAD STANDING
AS A RESIDENT, TAXPAYER, AND VOTER IN THE DISTRICT WITH THE LARGEST
POPULATION.  THREE OF THE FOUR COMMISSIONERS TESTIFIED AT THE TRIAL,
ALL TELLING THE COURT (AS INDEED THE POPULATION STATISTICS FOR THE
ESTABLISHED DISTRICTS DEMONSTRATED) THAT POPULATION WAS NOT A MAJOR
FACTOR IN THE DISTRICTING PROCESS.  THE TRIAL COURT RULED FOR
PETITIONER.  IT MADE NO EXPLICIT REFERENCE TO THE FOURTEENTH AMENDMENT,
BUT SAID THE APPORTIONMENT PLAN IN EFFECT WAS NOT "FOR THE CONVENIENCE
OF THE PEOPLE," THE APPORTIONMENT STANDARD ESTABLISHED BY ART. V, SEC.
18, OF THE TEXAS CONSTITUTION.  THE COURT ORDERED THE DEFENDANT
COMMISSIONERS TO ADOPT A NEW PLAN IN WHICH EACH PRECINCT WOULD HAVE
"SUBSTANTIALLY THE SAME NUMBER OF PEOPLE." 

THE TEXAS COURT OF CIVIL APPEALS REVERSED THE JUDGMENT OF THE
DISTRICT COURT AND ENTERED JUDGMENT FOR THE RESPONDENTS, 397 S.W.2D 919
(1965).  IT HELD THAT NEITHER FEDERAL NOR STATE LAW CREATED A
REQUIREMENT THAT TEXAS COUNTY COMMISSIONERS COURTS BE DISTRICTED
ACCORDING TO POPULATION. 

THE TEXAS SUPREME COURT REVERSED THE COURT OF CIVIL APPEALS, 406
S.W.2D 422 (1966).  IT HELD THAT UNDER "THE REQUIREMENTS OF THE TEXAS
AND THE UNITED STATES CONSTITUTIONS" THE PRESENT DISTRICTING SCHEME WAS
IMPERMISSIBLE "FOR THE REASONS STATED BY THE TRIAL COURT."  406 S.W.
2D, AT 425.  HOWEVER, THE SUPREME COURT DISAGREED WITH THE TRIAL
COURT'S CONCLUSION THAT PRECINCTS MUST HAVE SUBSTANTIALLY EQUAL
POPULATIONS, STATING THAT SUCH FACTORS AS "NUMBER OF QUALIFIED VOTERS,
LAND AREAS, GEOGRAPHY, MILES OF COUNTY ROADS ANDT AXABLE VALUES" COULD
BE CONSIDERED.  406 S.W. 2D, AT 428.  IT ALSO DECREED THAT NO TEXAS
COURTS COULD REDISTRICT THE COMMISSIONERS COURT.  "THIS IS THE
RESPONSIBILITY OF THE COMMISSIONERS COURT AND IS TO BE ACCOMPLISHED
WITHIN THE CONSTITUTIONAL BOUNDARIES WE HAVE SOUGHT TO DELINEATE."  406
S.W. 2D, AT 428-429.  /2/ 

IN REYNOLDS V. SIMS, SUPRA, THE EQUAL PROTECTION CLAUSE WAS APPLIED
TO THE APPORTIONMENT OF STATE LEGISLATURES.  EVERY QUALIFIED RESIDENT,
REYNOLDS DETERMINED, HAS THE RIGHT TO A BALLOT FOR ELECTION OF STATE
LEGISLATORS OF EQUAL WEIGHT TO THE VOTE OF EVERY OTHER RESIDENT, AND
THAT RIGHT IS INFRINGED WHEN LEGISLATORS ARE ELECTED FORM DISTRICTS OF
SUBSTANTIALLY UNEQUAL POPULATION.  THE QUESTION NOW BEFORE US IS
WHETHER THE FOURTEENTH AMENDMENT LIKEWISE FORBIDS THE ELECTION OF LOCAL
GOVERNMENT OFFICIALS FROM DISTRICTS OF DISPARATE POPULATION.  AS HAS
ALMOST EVERY COURT WHICH HAS ADDRESSED ITSELF TO THIS QUESTION, /3/  WE
HOLD THAT IT DOES.  /4/ 

THE EQUAL PROTECTION CLAUSE REACHES THE EXERCISE OF STATE POWER
HOWEVER MANIFESTED, WHETHER EXERCISED DIRECTLY OR THROUGH SUBDIVISIONS
OF THE STATE. 

"THUS THE PROHIBITIONS OF THE FOURTEENTH AMENDMENT EXTEND TO ALL
ACTION OF THE STATE DENYING EQUAL PROTECTION OF THE LAWS; WHATEVER THE
AGENCY OF THE STATE TAKING THE ACTION . . . "  COOPER V. AARON, 258
U.S. 1, 17 (1958). 

ALTHOUGH THE FORMS AND FUNCTIONS OF LOCAL GOVERNMENT AND THE
RELATIONSHIPS AMONG THE VARIOUS UNITS ARE MATTERS OF STATE CONCERN, IT
IS NOW BEYOND QUESTION THAT A STATE'S POLITICAL SUBDIVISIONS MUST
COMPLY WITH THE FOURTEENTH AMENDMENT.  /5/  THE ACTIONS OF LOCAL
GOVERNMENT ARE THE ACTIONS OF THE STATE.  A CITY, TOWN, OR COUNTY MAY
NO MORE DENY THE EQUAL PROTECTION OF THE LAWS THAN IT MAY ABRIDGE
FREEDOM OF SPEECH, ESTABLISH AN OFFICIAL RELIGION, ARREST WITHOUT
PROBABLE CAUSE, OR DENY DUE PROCESS OF LAW. 

WHEN THE STATE APPORTIONS ITS LEGISLATURE, IT MUST HAVE DUE REGARD
FOR THE EQUAL PROTECTION CLAUSE.  SIMILARLY, WHEN THE STATE DELEGATES
LAWMAKING POWER TO LOCAL GOVERNMENT AND PROVIDES FOR THE ELECTION OF
LOCAL OFFICIALS FROM DISTRICTS SPECIFIED BY STATUTE, ORDINANCE, OR
LOCAL CHARTER, IT MUST INSURE THAT THOSE QUALIFIED TO VOTE HAVE THE
RIGHT TO AN EQUALLY EFFECTIVE VOICE IN THE ELECTION PROCESS.  IF VOTERS
RESIDING IN OVERSIZE DISTRICTS ARE DENIED THEIR CONSTITUTIONAL RIGHT TO
PARTICIPATE IN THE ELECTION OF STATE LEGISLATORS, PRECISELY THE SAME
KIND OF DEPRIVATION OCCURS WHEN THF MEMBERS OF A CITY COUNCIL, SCHOOL
BOARD, OR COUNTY GOVERNING BOARD ARE ELECTED FROM DISTRICTS OF
SUBSTANTIALLY UNEQUAL POPULATION.  IF THE FIVE SENATORS REPRESENTING A
CITY IN THE STATE LEGISLATURE MAY NOT BE ELECTED FROM DISTRICTS RANGING
IN SIZE FROM 50,000 TO 500,000, NEITHER IS IT PERMISSIBLE TO ELECT THE
MEMBERS OF THE CITY COUNCIL FROM THOSE SAME DISTRICTS.  IN EITHER CASE,
THE VOTES OF SOME RESIDENTS HAVE GREATER WEIGHT THAN THOSE OF OTHERS;
IN BOTH CASES THE EQUAL PROTECTION OF THE LAWS HAS BEEN DENIED. 

THAT THE STATE LEGISLATURE MAY ITSELF BE PROPERLY APPORTIONED DOES
NOT EXEMPT SUBDIVISIONS FROM THE FOURTEENTH AMENDMENT.  WHILE STATE
LEGISLATURES EXERCISE EXTENSIVE POWER OVER THEIR CONSTITUENTS AND OVER
THE VARIOUS UNITS OF LOCAL GOVERNMENT, THE STATES UNIVERSALLY LEAVE
MUCH POLICY AND DECISIONMAKING TO THEIR GOVERNMENTAL SUBDIVISIONS. 
LEGISLATORS ENACT MANY LAWS BUT DO NOT ATTEMPT TO REACH THOSE COUNTLESS
MATTERS OF LOCAL CONCERN NECESSARILY LEFT WHOLLY OR PARTLY TO THOSE WHO
GOVERN AT THE LOCAL LEVEL.  WHAT IS MORE, IN PROVIDING FOR THE
GOVERNMENTS OF THEIR CITIES, COUNTIES, TOWNS, AND DISTRICTS, THE STATES
CHARACTERISTICALLY PROVIDE FOR REPRESENTATIVE GOVERNMENT-- FOR
DECISIONMAKING AT THE LOCAL LEVEL BY REPRESENTATIVES ELECTED BY THE
PEOPLE.  AND, NOT INFREQUENTLY, THE DELEGATION OF POWER TO LOCAL UNITS
IS CONTAINED IN CONSTITUTIONAL PROVISIONS FOR LOCAL HOME RULE WHICH ARE
IMMUNE FROM LEGISLATIVE INTERFERENCE.  IN A WORD, INSTITUTIONS OF LOCAL
GOVERNMENT HAVE ALWAYS BEEN A MAJOR ASPECT OF OUR SYSTEM, AND THEIR
RESPONSIBLE AND RESPONSIVE OPERATION IS TODAY OF INCREASING IMPORTANCE
TO THE QUALITY OF LIFE OF MORE AND MORE OF OUR CITIZENS.  WE THEREFORE
SEE LITTLE DIFFERENCE, IN TERMS OF THE APPLICATION OF THE EQUAL
PROTECTION CLAUSE AND OF THE PRINCIPALS OF REYNOLDS V. SIMS, BETWEEN
THE EXERCISE OF STATE POWER THROUGH LEGISLATURES AND ITS EXERCISE BY
ELECTED OFFICIALS IN THE CITIES, TOWNS, AND COUNTIES.  /6/ 

WE ARE URGED TO PERMIT UNEQUAL DISTRICTS FOR THE MIDLAND COUNTY
COMMISSIONERS COURT ON THE GROUND THAT THE COURT'S FUNCTIONS ARE NOT
SUFFICIENTLY "LEGISLATIVE."  THE PARTIES HAVE DEVOTED MUCH EFFORT TO
URGING THAT ALTERNATIVE LABELS-- "ADMINISTRATIVE" VERSUS "LEGISLATIVE"-
BE APPLIED TO THE COMMISSIONERS COURT.  AS THE BRIEF DESCRIPTION OF
THE COURT'S FUNCTIONS ABOVE AMPLY DEMONSTRATES, THIS UNIT OF LOCAL
GOVERNMENT CANNOT EASILY BE CLASSIFIED IN THE NEAT CATEGORIES FAVORED
BY CIVICS TEXTS.  THE TEXAS COMMISSIONERS COURTS ARE ASSIGNED SOME
TASKS WHICH WOULD NORMALLY BE THOUGHT OF AS "LEGISLATIVE," OTHERS
TYPICALLY ASSIGNED TO "EXECUTIVE" OR "ADMINISTRATIVE" DEPARTMENTS, AND
STILL OTHERS WHICH ARE "JUDICIAL."  IN THTS REGARD MIDLAND COUNTY'S
COMMISSIONERS COURT IS REPRESENTATIVE OF MOST OF THE GENERAL GOVERNING
BODIES OF AMERICAN CITIES, COUNTIES, TOWNS, AND VILLAGES.  /7/  ONE
KNOWLEDGEABLE COMMENTATOR HAS WRITTEN OF "THE STATES' VARIED, PRAGMATIC
APPROACH IN ESTABLISHING GOVERNMENTS."  R. WOOD, IN POLITICS AND
GOVERNMENT IN THE UNITED STATES 891-892 (A. WESTIN ED. 1965).  THAT
APPROACH HAS PRODUCED A STAGGERING NUMBER OF GOVERNMENTAL UNITS-- THE
PRELIMINARY CALCULATION BY THE BUREAU OF THE CENSUS FOR 1967 IS THAT
THERE ARE 81,304 "UNITS OF GOVERNMENT" IN THE UNITED STATES /8/  -- AND
AN EVEN MORE STAGGERING DIVERSITY.  NONETHELESS, WHILE SPECIAL-PURPOSE
ORGANIZATIONS ABOUND AND IN MANY STATES THE ALLOCATION OF FUNCTIONS
AMONG UNITS RESULTS IN INSTANCES OF OVERLAP AND VACUUM, VIRTUALLY EVERY
AMERICAN LIVES WITHIN WHAT HE AND HIS NEIGHBORS REGARD AS A UNIT OF
LOCAL GOVERNMENT WITH GENERAL RESPONSIBILITY AND POWER FOR LOCAL
AFFAIRS.  IN MANY CASES CITIZENS RESIDE WITHIN AND ARE SUBJECT TO TWO
SUCH GOVERNMENTS A CITY AND A COUNTY. 

THE MIDLAND COUNTY COMMISSIONERS COURT IS SUCH A UNIT.  WHILE THE
TEXAS SUPREME COURT FOUND THAT THE COMMISSIONERS COURT'S LEGISLATIVE
FUNCTIONS ARE "NEGLIGIBLE," 406 S.W.2D, AT 426, THE COURT DOES HAVE
POWER TO MAKE A LARGE NUMBER OF DECISIONS HAVING A BROAD RANGE OF
IMPACTS ON ALL THE CITIZENS OF THE COUNTY.  IT SETS A TAX RATE,
EQUALIZES ASSESSMENTS, AND ISSUES BONDS.  IT THEN PREPARES AND ADOPTS A
BUDGET FOR ALLOCATING THE COUNTY'S FUNDS, AND IS GIVEN BY STATUTE A
WIDE RANGE OF DISCRETION IN CHOOSING THE SUBJECTS ON WHICH TO SPEND. 
IN ADOPTING THE BUDGET THE COURT MAKES BOTH LONG-TERM JUDGMENTS ABOUT
THE WAY MIDLAND COUNTY SHOULD DEVELOP-- WHETHER INDUSTRY SHOULD BE
SOLICITED, ROADS IMPROVED, RECREATION FACILITIES BUILT, AND LAND SET
ASIDE FOR SCHOOLS-- AND IMMEDIATE CHOICES AMONG COMPETING NEEDS. 

THE TEXAS SUPREME COURT CONCLUDED THAT THE WORK ACTUALLY DONE BY THE
COMMISSIONERS COURT "DISPROPORTIONATELY CONCERNS) THE RURAL AREAS,"
406 S.W.2D, AT 428.  WERE THE COMMISSIONERS COURT A SPECIAL-PURPOSE
UNIT OF GOVERNMENT ASSIGNED THE PERFORMANCE OF FUNCTIONS AFFECTING
DEFINABLE GROUPS OF CONSTITUENTS MORE THAN OTHER CONSTITUENTS, WE WOULD
HAVE TO CONFRONT THE QUESTION WHETHER SUCH A BODY MAY BE APPORTIONED IN
WAYS WHICH GIVE GREATER INFLUENCE TO THE CITIZENS MOST AFFECTED BY THE
ORGANIZATION'S FUNCTIONS.  THAT QUESTION, HOWEVER, IS NOT PRESENTED BY
THIS CASE, FOR WHILE MIDLAND COUNTY AUTHORITIES MAY CONCENTRATE THEIR
ATTENTION ON RURAL ROADS, THE RELEVANT FACT IS THAT THE POWERS OF THE
COMMISSIONERS COURT INCLUDE THE AUTHORITY TO MAKE A SUBSTANTIAL NUMBER
OF DECISIONS THAT AFFECT ALL CITIZENS, WHETHER THEY RESIDE INSIDE OR
OUTSIDE THE CITY LIMITS OF MIDLAND.  THE COMMISSIONERS MAINTAIN
BUILDINGS, ADMINISTER WELFARE SERVICES, AND DETERMINE SCHOOL DISTRICTS
BOTH INSIDE AND OUTSIDE THE CITY.  THE TAXES IMPOSED BY THE COURT FALL
EQUALLY ON ALL PROPERTY IN THE COUNTY.  INDEED, IT MAY NOT BE MERE
COINCIDENCE THAT A BODY APPORTIONED WITH THREE OF ITS FOUR VOTING
MEMBERS CHOSEN BY RESIDENTS OF THE RURAL AREA SURROUNDING THE CITY
DEVOTES MOST OF ITS ATTENTION TO THE PROBLEMS OF THAT AREA, WHILE
PAYING FOR ITS EXPENDITURES WITH A TAX IMPOSED EQUALLY ON CITY
RESIDENTS AND THOSE WHO LIVE OUTSIDE THE CITY.  AND WE MIGHT POINT OUT
THAT A DECISION NOT TO EXERCISE A FUNCTION WITHIN THE COURT'S POWER-- A
DECISION, FOR EXAMPLE, NOT TO BUILD AN AIRPORT OR A LIBRARY, OR NOT TO
PARTICIPATE IN THE FEDERAL FOOD STAMP PROGRAM-- IS JUST AS MUCH A
DECISION AFFECTING ALL CITIZENS OF THE COUNTY AS AN AFFIRMATIVE
DECISION. 

THE EQUAL PROTECTION CLAUSE DOES NOT, OF COURSE, REQUIRE THAT THE
STATE NEVER DISTINGUISH BETWEEN CITIZENS, BUT ONLY THAT THE
DISTINCTIONS THAT ARE MADE NOT BE ARBITRARY OR INVIDIOUS.  THE
CONCLUSION OF REYNOLDS V. SIMS WAS THAT BASES OTHER THAN POPULATION
WERE NOT ACCEPTABLE GROUNDS FOR DISTINGUISHING AMONG CITIZENS WHEN
DETERMINING THE SIZE OF DISTRICTS USED TO ELECT MEMBERS OF STATE
LEGISLATURES.  WE HOLD TODAY ONLY THAT THE CONSTITUTION PERMITS NO
SUBSTANTIAL VARIATION FROM EQUAL POPULATION IN DRAWING DISTRICTS FOR
UNITS OF LOCAL GOVERNMENT HAVING GENERAL GOVERNMENTAL POWERS OVER THE
ENTIRE GEOGRAPHIC AREA SERVED BY THE BODY.     THIS COURT IS AWARE OF
THE IMMENSE PRESSURES FACING UNITS OF LOCAL GOVERNMENT, AND OF THE
GREATLY VARYING PROBLEMS WITH WHICH THEY MUST DEAL.  THE CONSTITUTION
DOES NOT REQUIRE THAT A UNIFORM STRAITJACKET BIND CITIZENS IN DEVISING
MECHANISMS OF LOCAL GOVERNMENT SUITABLE FOR LOCAL NEEDS AND EFFICIENT
IN SOLVING LOCAL PROBLEMS.  LAST TERM, FOR EXAMPLE, THE COURT UPHELD A
PROCEDURE FOR CHOOSING A SCHOOL BOARD THAT PLACED THE SELECTION WITH
SCHOOL BOARDS OF COMPONENT DISTRICTS EVEN THOUGH THE COMPONENT BOARDS
HAD EQUAL VOTES AND SERVED UNEQUAL POPULATIONS.  SAILORS V. BOARD OF
EDUCATION, 387 U.S. 105 (1967).  THE COURT RESTED ON THE ADMINISTRATIVE
NATURE OF THE AREA SCHOOL BOARD'S FUNCTIONS AND THE ESSENTIALLY
APPOINTIVE FORM OF THE SCHEME EMPLOYED.  IN DUSCH V. DAVIS, 387 U.S.
112 (1967), THE COURT PERMITTED VIRGINIA BEACH TO CHOOSE ITS
LEGISLATIVE BODY BY A SCHEME THAT INCLUDED AT-LARGE VOTING FOR
CANDIDATES, SOME OF WHOM HAD TO BE RESIDENTS OF PARTICULAR DISTRICTS,
EVEN THOUGH THE RESIDENCE DISTRICTS VARIED WIDELY IN POPULATION. 

THE SAILORS AND DUSCH CASES DEMONSTRATE THAT THE CONSTITUTION AND
THIS COURT ARE NOT ROADBLOCKS IN THE PATH OF INNOVATION, EXPERIMENT,
AND DEVELOPMENT AMONG UNITS OF LOCAL GOVERNMENT.  WE WILL NOT BAR WHAT
PROFESSOR WOOD HAS CALLED "THE EMERGENCE OF A NEW IDEOLOGY AND
STRUCTURE OF PUBLIC BODIES, EQUIPPED WITH NEW CAPACITIES AND
MOTIVATIONS . . . "  R. WOOD, 1400 GOVERNMENTS, AT 175 (1961).  OUR
DECISION TODAY IS ONLY THAT THE CONSTITUTION IMPOSES ONE GROUND RULE
FOR THE DEVELOPMENT OF ARRANGEMENTS OF LOCAL GOVERNMENT:  A REQUIREMENT
THAT UNITS WITH GENERAL GOVERNMENTAL POWERS OVER AN ENTIRE GEOGRAPHIC
AREA NOT BE APPORTIONED AMONG SINGLE-MEMBER DISTRICTS OF SUBSTANTIALLY
UNEQUAL POPULATION. 

THE JUDGMENT BELOW IS VACATED AND THE CASE IS REMANDED FOR
DISPOSITION NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  INTERPRETIVE COMMENTARY, VERNON'S ANN. TEX. CONST., ART. V,
SEC. 18 (1955).  SEE ALSO W. BENTON, TEXAS:  ITS GOVERNMENT AND
POLITICS 360-370 (1966); MUNICIPAL AND COUNTY GOVERNMENT (J. CLAUNCH
ED. 1961); C. MCCLESKEY, THE GOVERNMENT AND POLITICS OF TEXAS (1966). 

/2/  THE TEXAS SUPREME COURT DETERMINED THAT NEITHER THE STATE NOR
THE FEDERAL CONSTITUTION REQUIRES THAT POPULATION BE THE SOLE BASIS FOR
APPORTIONING THE MIDLAND COUNTY COMMISSIONERS COURT.  THERE IS
THEREFORE NO INDEPENDENT STATE GROUND FOR THE REFUSAL TO AWARD THE
RELIEF REQUESTED BY PETITIONER.  AND SINCE THE SUPREME COURT OPINION
CONTEMPLATED NO FURTHER PROCEEDINGS IN THE LOWER TEXAS COURTS, A "FINAL
JUDGMENT" THAT POPULATION DOES NOT GOVERN THE APPORTIONMENT OF THE
COMMISSIONERS COURT IS BEFORE US.  SEE MERCANTILE NAT. BANK V.
LANGDEAU, 371 U.S. 555 (1963); CONSTRUCTION LABORERS V. CURRY, 371 U.S.
542 (1963); RADIO STATION WOW V. JOHNSON, 326 U.S. 120 (1945). 

/3/  CASES IN WHICH THE HIGHEST STATE COURTS APPLIED THE PRINCIPLES
OF REYNOLD V. SIMS TO UNITS OF LOCAL GOVERNMENT INCLUDE MILLER V. BOARD
OF SUPERVISORS, 63 CAL.2D 343, 405 P.2D 857, 46 CAL.RPTR.  617 (1965);
MONTGOMERY COUNTY COUNCIL V. GARROTT, 243 MD. 634, 222 A.2D 164 (1966);
HANLON V. TOWEY, 274 MINN. 187, 142 N.W.2D 741 (1966); ARMENTROUT V.
SCHOOLER, 409 S.W.2D 138 (MO. 1966); SEAMAN V. FEDOURICH, 16 N.Y.2D 94,
209 N.ED.2D 778, 262 N.Y.S.2D 444 (1965); BAILEY V. JONES, 81 S.D. 617,
139 N.W.2D 385 (1966); STATE EX REL. SONNEBORN V. SYLVESTER, 26 WIS.2D
43, 132 N.W.2D 249 (1965).  NEWBOLD V. OSSER, 425 PA. 478, 230 A.2D 54
(1967), SEEMED TO ASSUME APPLICATION OF REYNOLDS.  IN OPPOSITION TO
THESE CASES ARE ONLY THE DECISION OF THE TEXAS SUPREME COURT IN THE
CASE BEFORE US AND BROUWER V. BRONKEMA, 377 MICH. 616, 141 N.W.2D 98
(1966), IN WHICH THE EIGHT JUSTICES OF THE MICHIGAN SUPREME COURT
DIVIDED EVENLY ON THE QUESTION. 

AMONG THE MANY FEDERAL COURT CASES APPLYING REYNOLDS V. SIMS TO
LOCAL GOVERNMENT ARE HYDEN V. BAKER, 286 F.SUPP.  475 (D.C.M.D. TENN.
1968); MARTINOLICH V. DEAN, 256 F.SUPP.  612 (D.C.S.D. MISS.  1966);
STRICKLAND V. BURNS, 256 F.SUPP.  824 (D.C.M.D. TENN. 1966); ELLIS V.
MAYOR OF BALTIMORE, 234 F.SUPP.  945 (D.C. MD. 1964), AFFIRMED AND
REMANDED, 352 F.2D 123 (C.A. 4TH CIR. 1965). 

/4/  A PRECEDENT FREQUENTLY CITED IN OPPOSITION TO THIS CONCLUSION
IS TEDESCO V. BOARD OF SUPERVISORS, 43 SO.2D 514 (LA. CT. APP. 1949),
APPEAL DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION, 339 U.S.
940 (1950).  PETITIONER POINTS OUT THAT THE EQUAL PROTECTION CLAUSE WAS
NOT INVOKED IN TUDESCO, WHERE THE DISTRICTING OF THE NEW ORLEANS CITY
COUNCIL WAS CHALLENGED UNDER THE PRIVILEGES AND IMMUNITIES CLAUSE.  A
MORE REALISTIC ANSWER IS THAT TEDESCO, DECIDED 12 YEARS BEFORE BAKER V.
CARR, 369 U.S. 186 (1962), HAS BEEN SEVERLY UNDERMINDED BY BAKER AND
THE SUCCEEDING APPORTIONMENT CASES.  SEE, AMONG THE GREAT MANY CASES SO
CONCLUDING, DELOZIER V. TYRONE AREA SCHOOL BD., 247 F.SUPP.  30
(D.C.W.D. PA. 1965). 

/5/  COOPER V. AARON, 358 U.S. 1, 16 (1958); SEE, E.G., SEE V. CITY
OF SEATTLE, 387 U.S. 541 (1967); THOMPSON V. CITY OF LOUISVILLE, 362
U.S. 199 (1960); TERMINIELLO V. CHICAGO, 337 U.S. 1 (1949). 

/6/  INEQUITABLE APPORTIONMENT OF LOCAL GOVERNING BODIES OFFENDS THE
KONSTITUTION EVEN IF ADOPTED BY A PROPERLY APPORTIONED LEGISLATURE
REPRESENTING THE MAJORITY OF THE STATE'S CITIZENS.  THE MAJORITY OF A
STATE-- BY CONSTITUTIONAL PROVISION, BY REFERENDUM, OR THROUGH
ACCURATELY APPORTIONED REPRESENTATIVES-- CAN NO MORE PLACE A MINORITY
IN OVERSIZE DISTRICTS WITHOUT DEPRIVING THAT MINORITY OF EQUAL
PROTECTION OF THE LAWS THAN THEY CAN DEPRIVE THE MINORITY OF THE BALLOT
ALTOGETHER, OR IMPOSE UPON THEM A TAX RATE IN EXCESS OF THAT TO BE PAID
BY EQUALLY SITUATED MEMBERS OF THE MAJORITY.  GOVERNMENT-- NATIONAL,
STATE, AND LOCAL-- MUST GRANT TO EACH CITIZEN THE EQUAL PROTECTION OF
ITS LAWS, WHICH INCLUDES AN EQUAL OPPORTUNITY TO INFLUENCE THE ELECTION
OF LAWMAKERS, NO MATTER HOW LARGE THE MAJORITY WISHING TO DEPRIVE OTHER
CITIZENS OF EQUAL TREATMENT OR HOW SMALL THE MINORITY WHO OBJECT TO
THEIR MISTREATMENT.  LUCAS V. COLORADO GENERAL ASSEMBLY, 377 U.S. 713
(1964), STANDS AS A SQUARE ADJUDICATION BY THIS COURT OF THESE
PRINCIPLES. 

/7/  MIDLAND COUNTY IS APPARENTLY UNTYPICAL IN CHOOSING THE MEMBERS
OF ITS LOCAL GOVERNING BODY FROM DISTRICTS.  "PON THE BASIS OF
AVAILABLE FIGURES, COUPLED WTTH ROUGH ESTIMATES FROM SAMPLINGS MADE OF
THE SITUATIONS IN VARIOUS STATES, IT APPEARS THAT ONLY ABOUT 25 PER
CENT OF . . . LOCAL GOVERNMENT GOVERNING BOARDS ARE ELECTED, IN WHOLE
OR IN PART FROM DISTRICTS OR, WHILE AT LARGE, UNDER SCHEMES INCLUDING
DISTRICT RESIDENCE REQUIREMENTS."  BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE 22, M. 31, FILED IN SAILORS V. BOARD OF EDUCATION, 387
U.S. 105 (1967), AND THE OTHER 1966 TERM LOCAL REAPPORTIONMENT CASES. 

/8/  U.S. DEPT. OF COMMERCE, BUREAU OF THE CENSUS, CENSUS OF
GOVERNMENTS UNITS IN 1967, AT 1 (PRELIM.  REPT.  OCT. 1967). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATTON OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, DISSENTING. 

I COULD NOT DISAGREE MORE WITH THIS DECISION, WHICH WHOLLY
DISREGARDS STATUROTY LIMITATIONS UPON THE APPELLATE JURISDICTION OF
THIS COURT IN STATE CASES AND AGAIN BETRAYS SUCH INSENSITIVITY TO THE
APPROPRIATE DIVIDING LINES BETWEEN THE JUDICIAL AND POLITICAL FUNCTIONS
UNDER OUR CONSTITUTIONAL SYSTEM. 

        I. 

I BELIEVE THAT THIS COURT LACKS JURISDICTION OVER THIS CASE BECAUSE,
PROPERLY ANALYZED, THE TEXAS JUDGMENT MUST BE SEEN EITHER TO REST ON AN
ADEQUATE STATE GROUND OR TO BE WANTING IN "FINALITY."  THE HISTORY OF
THE TEXAS PROCEEDINGS, AS RELATED IN THE COURT'S OPINION, ANTE, AT 477
478, CLEARLY REVEALS THAT THE DECISION OF THE TEXAS SUPREME COURT
DISALLOWING THE PRESENT COUNTY APPORTIONMENT SCHEME RESTS UPON A STATE
AS WELL AS A FEDERAL GROUND.  THE STATE GROUND-- ART. V, SEC. 18, OF
THE TEXAS CONSTITUTION-- WAS CLEARLY ADEQUATE TO SUPPORT THE RESULT. 
THIS SHOULD SUFFICE TO DEFEAT THE EXERCISE OF THIS COURT'S
JURISDICTION.  SEE, E.G., DEPARTMENT OF MENTAL HYGIENE V. KIRCHNER, 380
U.S. 194; HERB V. ITCAIRN, 324 U.S. 117, 125-126. 

NOR DOES THIS COURT HAVE JURTSDICTION TO REVIEW THE TEXAS SUPREME
COURT'S STATEMENT HTAT IN REAPPORTIONING THE COUNTY IN THE FUTURE THE
COUNTY COMMISSIONERS MAY TAKE INTO ACCOUNT FACTORS OTHER THAN
POPULATION.  THAT HOLDING OBVIOUSLY DOES NOT AMOUNT OT A "(FINAL
JUDGMENT" WITHIN THE MEANING OF 28 U.S.C. 1257.  /1/  THE TRADITIONAL
TEST OF FINALITY OF STATE COURT JUDGMENTS HAS BEEN WHETHER THE JUDGMENT
LEAVES MORE THAN A MINISTERIAL ACT TO BE DONE.  SEE, E.G., POPE V.
ATLANTIC COAST LINE R. CO., 345 U.S. 379, 382; REPUBLIC NATURAL GAS CO.
V. OKLAHOMA, 334 U.S. 62, 68.  IT IS CLEAR THAT THE ACTS WHICH MUST BE
PERFORMED IN ORDER TO BRING ABOUT A NEW APPORTIONMENT OF MIDLAND COUNTY
ARE VERY FAR FROM MINISTERIAL IN CHARACTER, AND CONCEIVABLY MIGHT EVEN
RESULT IN SATISFYING PETITIONER'S DEMANDS WITHOUT FURTHER LITIGATION. 
FOR EXAMPLE, SINCE THE STATEMENT OF THE TEXAS SUPREME COURT REGARDING
NONPOPULATION FACTORS WAS MERELY ADVISORY AND NOT MANDATORY, THE COUNTY
COMMISSIONERS MIGHT CHOOSE TO REAPPORTION THE COUNTY SOLELY ON THE
BASTS OF POPULATION, THUS LEAVING PETITIONER WITH NOTHING ABOUT WHICH
TO COMPLAIN.  SINCE THE REQUIREMENT OF FINALITY IS AN UNWAIVABLE
CONDITION OF THIS COURT'S JURISDICTION, SEE E.G., MARKET ST. R. CO. V.
RAILRAOD COMM'N, 324 U.S. 548, 551, I CONSIDER THAT THIS CASE IS NOT
PROPERLY BEFORE US. 

ON THESE SCORES, I WOULD DISMISS THE WRIT AS IMPROVIDENTLY GRANTED. 

        II. 

ON THE MERITS, WHICH I REACH ONLY BECAUSE THE COURT HAS DONE SO, I
CONSIDER THIS DECISION, WHICH EXTENDS THE STATE APPORTIONMENT RULE OF
REYNOLDS V. SIMS, 377 U.S. 533, TO AN ESTIMATED 80,000 UNITS OF LOCAL
GOVERNMENT THROUGHOUT THE LAND, BOTH UNJUSTIFIABLE AND ILL-ADVISED. 

I CONTINUE TO THINK THAT THESE ADVENTURES OF THE COURT IN THE REALM
OF POLITICAL SCIENCE ARE BEYOND ITS CONSTITUTIONAL POWERS, FOR REASONS
SET FORTH AT LENGTH IN MY DISSENTING OPINION IN REYNOLDS, 377 U.S.AT
589 ET SEQ. HOWEVER, NOW THAT THE COURT HAS DECIDED OTHERWISE, JUDICIAL
SELF-DISCIPLINE REQUIRES ME TO FOLLOW THE POLITICAL DOGMA NOW
CONSTITUTIONALLY EMBEDDED IN CONSEQUENCE OF THAT DECISION.  I AM NOT
FORECLOSED, HOWEVER, FROM REMONSTRATING AGAINST THE EXTENSION OF THAT
DECISION TO NEW AREAS OF GOVERNMENT.  AT THE PRESENT JUNCTURE I CONTENT
MYSELF WITH STATING TWO PROPOSITIONS WHICH, IN MY VIEW, STAND STRONGLY
AGAINST WHAT IS DONE TODAY.  THE FIRST IS THAT THE "PRACTICAL
NECESSITIES" WHICH HAVE BEEN THOUGHT BY SOME TO JUSITFY THE PROFOUND
BREAK WITH HISTORY THAT WAS MADE IN 1962 BY THIS COURT'S DECISION IN
BAKER V. CARR, 369 U.S. 186, /2/  ARE NOT PRESENT HERE.  THE SECOND IS
THAT NOTWITHSTANDING REYNOLDS THE "ONE MAN, ONE VOTE" IDEOLOGY DOES NOT
PROVIDE AN ACCEPTABLE FORMULA FOR STRUCTURING LOCAL GOVERNMENTAL
UNITS. 

        A. 

THE ARGUMENT MOST GENERALLY HEARD FOR JUSTIFYING THE ENTRY OF THE
FEDERAL COURTS INTO THE FIELD OF STATE LEGISLATIVE APPORTIONMENT IS
THAT SINCE STATE LEGISLATURES HAD WIDELY FAILED TO CORRECT SERIOUS
MALAPPORTIONMENTS IN THEIR OWN STRUCTURE, AND SINCE NO OTHER MEANS OF
REDRESS HAD PROVED AVAILABLE THROUGH THE POLITICAL PROCESS, THIS COURT
WAS ENTITLED TO STEP INTO THE PICTURE.  /3/  WHILE I CONTINUE TO REJECT
THAT THESIS AS FURNISHING AN EXCUSE FOR THE FEDERAL JUDICIARY'S
STRAYING OUTSIDE ITS PROPER CONSTITUTIONAL ROLE, AND WHILE I CONTINUE
TO BELIEVE THAT IT BODES ILL FOR THE COUNTRY AND THE ENTIRE FEDERAL
JUDICIAL SYSTEM IF THIS COURT DOES NOT FIRMLY SET ITS FACE AGAINST THIS
LOOSE AND SHORT-SIGHTED POINT OF VIEW, THE IMPORTANT THING FOR PRESENT
PURPOSES IS THAT NO SUCH JUSTIFICATION CAN BE BROUGHT TO BEAR IN THIS
INSTANCE. 

NO CLAIM IS MADE IN THIS CASE THAT AVENUES OF POLITICAL REDRESS ARE
NOT OPEN TO CORRECT ANY MALAPPORTIONMENT IN ELECTIVE LOCAL GOVERNMENTAL
UNITS, AND IT IS DIFFICULT TO ENVISAGE HOW SUCH A SITUATION COULD
ARISE.  LOCAL GOVERNMENTS ARE CREATURES OF THE STATES, AND THEY MAY BE
REFORMED EITHER BY THE STATE LEGISLATURES, WHICH ARE NOW REQUIRED TO BE
APPORTIONED ACCORDING TO REYNOLDS, OR BY AMENDMENT OF STATE
CONSTITUTIONS.  /4/  IN THESE CIRCUMSTANCES, THE ARGUMENT OF PRACTICAL
NECESSITY HAS NO FORCE.  THE COURT, THEN, SHOULD WITHHOLD ITS HAND
UNTIL SUCH A SUPPOSED NECESSITY DOES ARISE, BEFORE INTRUDING ITSELF
INTO THE BUSINESS OF RESTRUCTURING LOCAL GOVERNMENTS ACROSS THE
COUNTRY. 

THERE IS ANOTHER REASON WHY THE COURT SHOULD AT LEAST WAIT FOR A
SUITABLE PERIOD BEFORE APPLYING THE REYNOLDS DOGMA TO LOCAL
GOVERNMENTS.  THE ADMINISTRATIVE FEASIBILITY OF JUDICIAL APPLICATION OF
THE "ONE MAN, ONE VOTE" RULE TO THE APPORTIONMENT EVEN OF STATE
LEGISLATURES HAS NOT YET BEEN DEMONSTRATED.  A NUMBER OF SIGNIFICANT
ADMINISTRATIVE QUESTIONS REMAIN UNANSWERED, /5/  ANDT HE BURDEN ON THE
FEDERAL COURTS HAS BEEN SUBSTANTIAL.  WHEN THIS HAS THUS FAR BEEN THE
OUTCOME OF APPLYING THE RULE TO 50 STATE LEGISLATURES, IT SEEMS MOST
UNWISE AT THIS TIME TO EXTEND IT TO SOME 80,000 UNITS OF LOCAL
GOVERNMENT, WHOSE BEWILDERING VARIETY IS SURE TO MULTIPLY THE PROBLEMS
WHICH HAVE ALREADY ARISEN AND TO CAST FURTHER BURDENS, OF IMPONDERABLE
DIMENSION, ON THE FEDERAL COURTS.  I AM FRANKLY ASTONISHED AT THE EASE
WITH WHICH THE COURT HAS PROCEEDED TO FASTEN UPON THE ENTIRE COUNTRY AT
ITS LOWEST POLITICAL LEVELS THE STRONG ARM OF THE FEDERAL JUDICIARY,
LET ALONG A PARTICULAR POLITICAL IDEOLOGY WHICH HAS BEEN THE SUBJECT OF
WIDE DEBATE AND DIFFERENCES FROM THE BEGINNINGS OF OUR NATION.  /6/
   B. 

THERE ARE ALSO CONVINCING FUNCTIONAL REASONS WHY THE REYNOLDS RULE
SHOULD NOT APPLY TO LOCAL GOVERNMENTAL UNITS AT ALL.  THE EFFECT OF
REYNOLDS WAS TO READ A LONG DEBATED POLITICAL THEORY-- THAT THE ONLY
PERMISSIBLE BASIS FOR THE SELECTION OF STATE LEGISLATORS IS ELECTION BY
MAJORITY VOTE WITHIN AREAS WHICH ARE THEMSELVES EQUAL IN POPULATION--
INTO THE UNITED STATES CONSTITUTION, THEREBY FORECLOSING THE STATES
FROM EXPERIMENTING WITH LEGISLATURES RATIONALLY FORMED IN OTHER WAYS. 
EVEN ASSUMING THAT THIS RESULT COULD BE JUSTIFIED ON THE STATE LEVEL,
BECAUSE OF THE SUBSTANTIAL IDENTITY IN FORM AND FUNCTION OF THE STATE
LEGISLATURES, AND BECAUSE OF THE ASSERTED PRACTICAL NECESSITIES FOR
FEDERAL JUDICIAL INTERFERENCE REFERRED TO ABOVE, THE "ONE MAN, ONE
VOTE" THEORY IS SURELY A HAZARDOUS GENERALIZATION ON THE LOCAL LEVEL. 
AS HAS BEEN NOTED PREVISOULY, NO "PRACTICAL NECESSITY"  HAS BEEN
ASSERTED TO JUSTIFY APPLICATION OF THE RULE TO LOCAL GOVERNMENTS.  MORE
IMPORTANT, THE GREATER AND MORE VARIED RANGE OF FUNCTIONS PERFORMED BY
LOCAL GOVERNMENTAL UNITS IMPLIES THAT FLEXIBILITY IN THE FORM OF THEIR
STRUCTURE IS EVEN MORE IMPORTANT THAN AT THE STATE LEVEL, AND THAT BY
DEPRIVING LOCAL GOVERNMENTS OF THIS NEEDED ADAPTABILITY THE COURT'S
HOLDING MAY INDEED DEFEAT THE VERY GOALS OF REYNOLDS. 

THE PRESENT CASE AFFORDS ONE EXAMPLE OF WHY THE "ONE MAN, ONE VOTE"
RULE IS ESPECIALLY INAPPROPRIATE FOR LOCAL GOVERNMENTAL UNITS.  THE
TEXAS SUPREME COURT HELD AS A MATTER OF TEXAS LAW: 

"THEORETICALLY, THE COMMISSIONERS COURT IS THE GOVERNING BODY OF THE
COUNTY AND THE COMMISSIONERS REPRESENT ALL THE RESIDENTS, BOTH URBAN
AND RURAL, OF THE COUNTY.  BUT DEVELOPMENTS DURING THE YEARS HAVE
GREATLY NARROWED THE SCOPE OF THE FUNCTIONS OF THE COMMISSIONERS COURT
AND LIMITED ITS MAJOR RESPONSIBILITIES TO THE NONURBAN AREAS OF THE
COUNTY.  IT HAS COME TO PASS THAT THE CITY GOVERNMENT . . . IS THE
MAJOR CONCERN OF THE CITY DWELLERS AND THE ADMINISTRATION OF THE
AFFAIRS OF THE COUNTY IS THE MAJOR CONCERN OF THE RURAL DWELLERS."  406
S.W.2D 422, 428. 

DESPITE THE SPECIALIZED ROLE OF THE COMMISSIONERS COURT, THE
MAJORITY HAS UNDERTAKEN TO BRING IT WITHIN THE AMBIT OF REYNOLDS SIMPLY
BY CLASSIFYING IT AS "A UNIT OF LOCAL GOVERNMENT WITH GENERAL
RESPONSIBILITY AND POWER FOR LOCAL AFFAIRS."  SEE ANTE, AT 483. 
ALTHOUGH THIS APPROACH IS INTENDED TO AFFORD "EQUAL PROTECTION" TO ALL
VOTERS IN MIDLAND COUNTY, IT WOULD SEEM THAT IT IN FACT DISCRIMINATES
AGAINST THE COUNT'S RURAL INHABITANTS.  THE COMMISSIONERS COURT, AS
FOUND BY THE TEXAS SUPREME COURT, PERFORMS MORE FUNCTIONS IN THE AREA
OF THE COUNTY OUTSIDE MIDLAND CITY THAN IT DOES WITHIN THE CITY
LIMITS.  THEREFORE, EACH RURAL RESIDENT HAS A GREATER INTEREST IN ITS
ACTIVITIES THAN EACH CITY DWELLER.  YET UNDER THE MAJORITY'S FORMULA
THE URBAN RESIDENTS ARE TO HAVE A DOMINANT VOICE IN THE COUNTY
GOVERNMENT, PRECISELY PROPORTIONAL TO THEIR NUMBERS, AND LITTLE OR NO
ALLOWANCE MAY BE MADE FOR THE GREATER STAKE OF THE RURAL INHABITANTS IN
THE COUNTY GOVERNMENT. 

THIS PROBLEM IS NOT A TRIVIAL ONE AND IS NOT CONFINED TO MIDLAND
COUNTY.  IT STEMS FROM THE FACT THAT LOCAL GOVERNMENTS, UNLIKE STATE
GOVERNMENTS, ARE OFTEN SPECIALIZED IN FUNCTION.  /7/  APPLICATION OF
THE EYNOLDS RULE TO SUCH LOCAL GOVERNMENTS PREVENTS THE ADOPTION OF
APPORTIONMENTS WHICH TAKE INTO ACCOUNT THE EFFECT OF THIS
SPECIALIZATION, AND THEREFORE MAY RESULT IN A DENIAL OF EQUAL TREATMENT
TO THOSE UPON WHOM THE EXERCISE OF THE SPECIAL POWERS HAS UNEQUAL
IMPACT.  UNDER TODAY'S DECISION, THE ONLY APPARENT ALTERNATIVE IS TOC
LASSIFY THE GOVERNMENTAL UNIT AS OTHER THAN "GENERAL" IN POWER AND
RESPONSIBILITY, THEREBY, PRESUMABLY, AVOIDING APPLICATION OF THE
REYNOLDS RULE.  NEITHER OUTCOME SATISFIES REYNOLDS' AVOWED PURPOSE:  TO
ASSURE "EQUALITY" TO ALL VOTERS.  THE RESULT ALSO DEPRIVES LOCALITIES
OF THE DESIRABLE OPTION OF ESTABLISHING SLIGHTLY SPECIALIZED, ELECTIVE
UNITS OF GOVERNMENT, SUCH AS TEXAS' COUNTY COMMISSIONERS COURT, AND
VARYING THE SIZE OF THE CONSTITUENCIES SO AS RATIONALLY TO FAVOR THOSE
WHOM THE GOVERNMENT AFFECTS MOST.  THE MAJORITY HAS CHOSEN EXPLICITLY
TO DENY LOCAL GOVERNMENTS THIS ALTERNATIVE BY REJECTING EVEN THE
SOLUTION OF THE TEXAS SUPREME COURT, WHICH HELD THAT THE PRESENT COUNTY
APPORTIONMENT WAS IMPERMISSIBLE BUT WOULD HAVE ALLOWED THE NEW
APPORTIONMENT TO REFLECT FACTORSRELATED TO THE SPECIAL FUNCTIONS OFT HE
COUNTY COMMISSIONERS COURT, SUCH AS "LAND AREAS, GEOGRAPHY, MILES OF
COUNTY ROADS AND TAXABLE VALUES," 406 S.W.2D, AT 428, AS WELL AS
POPULATION. 

DESPITE THE MAJORITY'S DECLARATION THAT IT IS NOT IMPOSING A
"STRAITJACKET" ON LOCAL GOVERNMENTAL UNITS, SEE ANTE, AT 485, ITS
SOLUTION IS LIKELY TO HAVE OTHER UNDESIRABLE "FREEZING" EFFECTS ON
LOCAL GOVERNMENT.  ONE READILY FORESEEABLE EXAMPLE IS IN THE CRUCIAL
FIELD OF METROPOLITAN GOVERNMENT.  A COMMON PATTERN OF DEVELOPMENT IN
THE NATION'S URBAN AREAS HAS BEEN FOR THE LESS AFFLUENT CITIZENS TO
MIGRATE TO OR REMAIN WITHIN THE CENTRAL CITY, WHILE THE MORE WEALTHY
MOVE TO THE SUBURBS AND COME INTO THE CITY ONLY TO WORK.  /8/  THE
RESULT HAS BEEN TO IMPOSE A RELATIVELY HEAVIER TAX BURDEN UPON CITY
TAXPAYERS AND TO FRAGMENTIZE GOVERNMENTAL SERVICES IN THE METROPOLITAN
AREA.  /9/  AN OFT-PROPOSED SOLUTION TO THESE PROBLEMS HAS BEEN THE
INSTITUTION OF AN INTEGRATED GOVERNMENT ENCOMPASSING THE ENTIRE
METROPOLITAN AREA.  /10/  IN MANY INSTANCES, THE SUBURBS MAY BE
INCLUDED IN SUCH A METROPOLITAN UNIT ONLY BY MAJORITY VOTE OF THE
VOTERS IN EACH SUBURB.  /11/  AS A PRACTICAL MATTER, THE SUBURBANITIES
OFTEN WILL BE RELUCTANT TO JOIN THE METROPOLITAN GOVERNMENT UNLESS THEY
RECEIVE A SHARE IN THE GOVERNMENT PROPORTIONAL TO THE BENEFITS THEY
BRING WITH THEM AND NOT MERELY TO THEIR NUMBERS.  /12/  THE CITY
DWELLERS MAY BE READY TO CONCEDE THIS MUCH, IN RETURN FOR THE ABILITY
TO TAX THE SUBURBS.  UNDER THE MAJORITY'S PRONOUNCEMENTS, HOWEVER, THIS
RATIONAL COMPROMISE WOULD BE FORBIDDEN:  THE METROPOLITAN GOVERNMENT
MUST BE APPORTIONED SOLELY ON THE BASIS OF POPULATION IF IT IS A
"GENERAL" GOVERNMENT. 

THESE FUNCTIONAL CONSIDERATIONS REINFORCE MY BELIEF THAT THE "ONE
MAN, ONE VOTE" RULE, WHICH POSSESSES THE SIMPLISTIC DEFECTS INHERENT IN
ANY JUDICIALLY IMPOSED SOLUTION OF A COMPLEX SOCIAL PROBLEM, /13/ IS
ENTIRELY INAPPROPRIATE FOR DETERMINING THE FORM OF THE COUNTRY'S LOCAL
GOVERNMENTS. 

NO BETTER DEMONSTRATION OF THIS PROPOSITION COULD HAVE BEEN MADE
THAN THAT AFFORDED BY THE ADMIRABLE ANALYSIS CONTAINED IN THE
DISSENTING OPINION OF MY BROTHER FORTAS.  BUT, WITH RESPECT, MY
BROTHER'S PROJECTED SOLUTION OF THE MATTER IS NO LESS UNSATISFACTORY. 
FOR IT WOULD BID FAIR TO PLUNGE THIS COURT INTO AN AVALANCHE OF LOCAL
REAPPORTIONMENT CASES WITH NO FIRMER CONSTITUTIONAL ANCHORS THAN ITS
OWN NOTIONS OF WHAT CONSTITUTES "EQUAL PROTECTION" IN ANY GIVEN
INSTANCE. 

WITH DEFERENCE, I THINK THAT THE ONLY SURE-FOOTED WAY OF AVOIDING,
ON THE ONE HAND, THE INEQUITIES INHERENT IN TODAY'S DECISION, AND ON
THE OTHER, THE MORASS OF PITFALLS THAT WOULD FOLLOW FROM MY BROTHER
FORTAS' APPROACH, IS FOR THIS COURT TO DECLINE TO EXTEND THE
CONSTITUTIONAL EXPERIMENT OF REYNOLDS, AND TO LEAVE THE STRUCTURING OF
LOCAL GOVERNMENTAL UNITS TO THE POLITICAL PROCESS WHERE IT BELONGS. 

/1/  28 U.S.C. 1257 PROVIDES:  "FINAL JUDGMENTS OR DECREES RENDERED
BY THE HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE HAD, MAY
BE REVIEWED BY THE SUPREME COURT AS FOLLOWS.  . . " 

/2/  THE MAGNITUDE OF THIS BREAK WAS IRREFUTABLY DEMONSTRATED BY MR.
JUSTICE FRANKFURTER IN HIS DISSENTING OPINION IN BAKER, 369 U.S.,AT
266, 300-323. 

/3/  SEE THE CONCURRING OPINION OF MR. JUSTICE CLARK IN BAKER V.
CARR, 369 U.S. 186, 251, 258-259; AUERBACH, THE REAPPORTIONMENT CASES:
ONE PERSON, ONE VOTE-- ONE VOTE, ONE VALUE, 1964 SUP.CT.REV.  1, 68
70. 

/4/  SEE, E.G., UNITED STATES ADVISORY COMMISSION ON
INTERGOVERNMENTAL RELATIONS, STATE CONSTITUTIONAL AND STATUTORY
RESTRICTIONS UPON THE STRUCTURAL, FUNCTIONAL, AND PERSONNEL POWERS OF
LOCAL GOVERNMENT 23-61 (1962); WEINSTEIN, THE EFFECT OF THE FEDERAL
REAPPORTIONMENT DECISIONS ON COUNTIES AND OTHER FORMS OF MUNICIPAL
GOVERNMENT, 65 COL.L.REV.  21, 23, N. 9 (1965). 

/5/  ONE SUCH QUESTION IS THE EXTENT TO WHICH AN APPORTIONMENT MAY
TAKE INTO ACCOUNT POPULATION CHANGES WHICH OCCUR BETWEEN DECENNIAL
CENSUSES.  CF. LUCAS V. RHODES, 389 U.S. 212 (DISSENTING OPINION OF
THIS WRITER).  ANOTHER IS THE DEGREE OF POPULATION VARIATION WHICH IS
CONSTITUTIONALLY PERMISSIBLE.  SEE SWANN V. ADAMS, 385 U.S. 440; CF.
ROCKEFELLER V. WELLS, 389 U.S. 421 (DISSENTING OPINION OF THIS
WRITER). 

/6/  SEE THE DISSENTING OPINION OF MR. JUSTICE FRANKFURTER IN BAKER
V. CARR, 369 U.S. 186, 266, 300-324. 

/7/  SEE GENERALLY W. ANDERSON & E. WEIDNER, STATE AND LOCAL
GOVERNMENT 85-103 (1951). 

/8/  SEE, E.G., W. ANDERSON & E. WEIDNER, SUPRA, AT 171-174; UNITED
STATES ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS FOR USE OF
HOUSE COMMITTEE ON GOVERNMENT OPERATIONS, 87TH CONG., 1ST SESS.,
GOVERNMENTAL STRUCTURE, ORGANIZATION, AND PLANNING IN METROPOLITAN
AREAS 7 (COMM. PRINT 1961)). 

/9/  SEE, E.G., UNITED STATES ADVISORY COMMISSION ON
INTERGOVERNMENTAL RELATIONS, ALTERNATIVE APPROACHES TO GOVERNMENTAL
REORGANIZATION IN METROPOLITAN AREAS 8-9 (1962); UNITED STATES ADVISORY
COMMISSION ON INTERGOVERNMENTAL RELATIONS FOR USE OF HOUSE COMMITTEE ON
GOVERNMENT OPERATIONS, 87TH CONG., 1ST SESS., GOVERNMENTAL STRUCTURE,
ORGANIZATION, AND PLANNING IN METROPOLITAN AREAS 15-16 (COMM. PRINT
1961). 

/10/  SEE, E.G., W. ANDERSON & E. WEIDNER, SUPRA, AT 174-179; UNITED
STATES ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, ALTERNATIVE
APPRAOCHES TO GOVERNMENTAL REORGANIZATION IN METROPOLITAN AREAS
(1962). 

/11/  SEE, E.G., UNITED STATES ADVISORY COMMISSION ON
INTERGOVERNMENTAL RELATIONS, STATE CONSTITUTIONAL AND STATUTORY
RESTRUCTIONS UPON THE STRUCTURAL, FUNCTIONAL, AND PERSONNEL POWERS OF
LOCAL GOVERNMENT 38, 44053 (1962). 

/12/  SEE WEINSTEIN, THE EFFECT OF THE FEDERAL REAPPORTIONMENT
DECISIONS ON COUNTIES AND OTHER FORMS OF MUNICIPAL GOVERNMENT, 65
COL.L.REV.  21, 37 AND N. 67 (1965); CF. UNITED STATES ADVISORY
COMMISSION ON INTERGOVERNMENTAL RELATIONS, FACTORS AFFECTING VOTER
REACTIONS TO GOVERNMENTAL REORGANIZATION IN METROPOLITAN AREAS 26-27
(1962). 

/13/  CF. H. HART & A. SACKS, THE LEGAL PROCESS 662-669 (TENT.  ED.
1958). 

MR. JUSTICE FORTAS, DISSENTING. 

I WOULD DISMISS THE WRIT IN THIS CASE AS IMPROVIDENTLY GRANTED.  THE
TEXAS SUPREME COURT HELD THE DISTRICTING SCHEME UNLAWFUL UNDER THE
TEXAS CONSTITUTION.  IT ORDERED REDISTRICTING.  IN THIS DIFFICULT AND
DELICATE AREA I WOULD AWAIT THE RESULT OF THE REDISTRICTING SO THAT WE
MAY PASS UPON THE FINAL PRODUCT OF TEXAS' EXERCISE OF ITS GOVERNMENTAL
POWERS, IN TERMS OF OUR CONSTITUTIONAL RESPONSIBILITY, AND NOT UPON A
SCHEME WHICH TEXAS ITSELF HAS INVALIDATED.  /1/ 

THE COURT'S OPINION ARGUES (ANTE, AT 478, N. 2) THAT THE TEXAS
SUPREME COURT'S ORDER IS A FINAL JUDGMENT BECAUSE IT CONTEMPLATES NO
FURTHER PROCEEDINGS IN THE TEXAS COURTS, ALTHOUGH IT HOLDS THE PRESENT
DISTRICTING UNLAWFUL AND REQUIRES THE COMMISSIONERS COURT TO
REDISTRICT.  I DO NOT REACH THIS POINT. 

THE COURT ACTS NOW TO SUPERIMPOSE ITS OWN FORMULA BECAUSE IT
DISAGREES WITH THE STANDARD FOR REDISTRICING THAT THE TEXAS SUPREME
COURT STATES.  THAT STANDARD DIRECTED REDISTRICING ON THE BASIS OF THE
"NUMBER OF QUALIFIED VOTERS, LAND AREAS, GEOGRAPHY, MILES OF COUNTY
ROADS AND TAXABLE VALUES."  406 S.W.2D 422, 428.  THIS STANDARD MAY OR
MAY NOT PRODUCE A RESULT WHICH THIS COURT OR I WOULD FIND
CONSTITUTIONALLY ACCEPTABLE.  WE CANNOT KNOW IN ADVANCE HOW THE MELANGE
OF FACTORS STATED BY THE TEXAS COURT WOULD EMERGE FROM THE MIXING
MACHINE OF THE TEXAS AUTHORITIES WHO WOULD DEAL WITH THE PROBLEM.  IT
IS CLEAR THAT THE EXTREME IMBALANCE NOW PREVAILING WOULD BE ELIMINATED,
BECAUSE THE TEXAS SUPREME COURT HAS HELD IT UNCONSTITUTIONAL.  IT MIGHT
BE THAT THE SUBSTITUTE FINALLY WORKED OUT WOULD BE SUCH THAT A MAJORITY
OF THIS COURT WOULD NOT REJECT IT AS A DENIAL OF EQUAL PROTECTION OF
THE LAWS.  AFTER ALL, AT THE LAST TERM OF THIS COURT, WE ACCEPTED AS
PASSING THE SCRUTINY OF THE CONSTITUION, THE LESS-THAN-MATHEMATICALLY
PERFECT PLANS IN DUSCH V. DAVIS, 387 U.S. 112 (1967), AND SAILORS V.
BOARD OF EDUCATION, 387 U.S. 105 (1967), 

THE COURT, HOWEVER, NOW PLUNGES TO ADJUDICATION OF THECASE OF
MIDLAND COUNTY, TEXAS, IN MIDSTREAM, APPARENTLY BECAUSE IT REJECTS ANY
RESULT THAT MIGHT EMERGE WHICH DEVIATES FROM THE LITERAL THRUST OF ONE
MAN, ONE VOTE.  SINCE IT NOW ADOPTS THIS SIMPLISTIC APPROACH,
APPARENTLY THE MAJORITY BELIEVES THAT IT MIGHT AS WELL SAY SO AND SAVE
TEXAS THE LABOR OF DEVISING AN ANSWER. 

I AM IN FUNDAMENTAL DISAGREEMENT.  I BELIEVE, AS I SHALL DISCUSS,
THAT IN THE CIRCUMSTANCES OF THIS CASE EQUAL PROTECTION OF THE LAWS MAY
BE ACHIEVED-- AND PERHAPS CAN ONLY BE ACHIEVED-- BY A SYSTEM WHICH
TAKES INTO ACCOUNT A COMPLEX OF VALUES AND FACTORS, AND NOT MERELY THE
ARITHMETIC SIMPLICITY OF ONE EQUALS ONE.  DUSCH AND SAILORS WERE WISELY
AND PRUDENTLY DECIDED.  THEY REFLECT A REASONED, CONSERVATIVE,
EMPIRICAL APPROACH TO THE INTRICATE PROBLEM OF APPLYING CONSTITUTIONAL
PRINCIPLE TO THE COMPLEXITIES OF LOCAL GOVERNMENT.  I KNOW OF NO REASON
WHY WE NOW ABANDON THIS REASONABLE AND MODERATE APPROACH TO THE PROBLEM
OF LOCAL SUFFRAGE AND ADOPT AN ABSOLUTE AND INFLEXIBLE FORMULA WHICH IS
POTENTIALLY DESTRUCTIVE OF IMPORTANT POLITICAL AND SOCIAL VALUES. 
THERE IS NO REASON WHY WE SHOULD INSIST THAT THERE IS AND CAN BE ONLY
ONE RULE FOR VOTERS IN LOCAL GOVERNMENTAL UNITS-- THAT DISTRICTS FOR
UNITS OF LOCAL GOVERNMENT MUST BE DRAWN SOLELY ON THE BASIS OF
POPULATION.  I BELIEVE THERE ARE POWERFUL REASONS WHY, WHILE INSISTING
UPON REASONABLE REGARD FOR THE POPULATION-SUFFRAGE RATIO, WE SHOULD
REJECT A RIGID, THEORETICAL, AND AUTHORITARIAN APPROACH TO THE PROBLEMS
OF LOCAL GOVERNMENT.  IN THIS COMPLEX AND INVOLVED AREA, WE SHOULD BE
CAREFUL AND CONSERVATIVE IN OUR APPLICATION OF CONSTITUTIONAL
IMPERATIVES, FOR THEY ARE POWERFUL.     CONSTITUTIONAL COMMANDMENTS ARE
NOT SURGICAL INSTURMENTS.  THEY HAVE A TENDENCY TO HACK DEEPLY-- TO
AMPUTATE.  AND WHILE I HAVE NO DOUBT THAT, WITH THE GROWTH OF SUBURBIA
AND EXURBIA, THE PROBLEM OF ALLOCATING LOCAL GOVERNMENT FUNCTIONS AND
BENEFITS URGENTLY REQUIRES ATTENTION, I AM PERSUADED THAT IT DOES NOT
CALL FOR THE HATCHET OF ONE MAN, ONE VOTE.  IT IS OUR DUTY TO INSIST
UPON DUE REGARD FOR THE VALUE OF THE INDIVIDUAL VOTE BUT NOT TO IGNORE
REALITIES OR TO BYPASS THE ALTERNATIVES THAT LEGISLATIVE ALTERATION
MIGHT PROVIDE. 

        I. 

I AGREE THAT APPLICATION OF THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION, DECREED BY THIS COURT IN THE CASE OF STATE LEGISLATURES,
CANNOT STOP AT THAT POINT.  OF COURSE LOCAL GOVERNMENTAL UNITS ARE
SUBJECT TO THE COMMANDS OF THE EQUAL PROTECTION CLAUSE.  COOPER V.
AARON, 358 U.S. 1, 17 (1958).  THAT MUCH IS EASY.  THE DIFFICULT
QUESTION, AND THE ONE WHICH THE COURT SLIGHTS, IS:  WHAT DOES THE EQUAL
PROTECTION CLAUSE DEMAND WITH REGARD TO LOCAL GOVERNMENTAL UNITS? 

REYNOLDS V. SIMS, 377 U.S. 533 (1964), STANDS FOR THE GENERAL
PROPOSITION THAT THE DEBASEMENT OF THE RIGHT TO VOTE THROUGH
MALAPPORTIONMENT IS OFFENSIVE TO THEEQUAL PROTECTION CLAUSE.  IT HOLDS
THAT WHERE THE ALLEGEDLY DEBASED VOTE RELATES TO THE STATE LEGISLATURE,
A JUDICIAL REMEDY IS AVAILABLE TO ADJUDICATE A CLAIM OF SUCH
DEBASEMENT, AND THAT, SUBJECT TO SOME PERMISSIBLE DEVIATION, THE REMEDY
IS TO REQUIRE REAPPORTIONMENT ON A POPULATION BASIS.  ALTHOUGH THE
COURT'S OPINION CAREFULLY EMPHASIZES THE APPROPRIATENESS OF ALLOWING
LATITUDE TO MEET LOCAL AND SPECIAL CONDITIONS, 377 U.S.,AT 577-581, ITS
INSISTENCE UPON THE NEED FOR GENERAL CORRESPONDENCE OF VOTING RIGHTS TO
POPULATION HAS COME TO BE CALLED THE ONE MAN, ONE VOTE RULE.  /2/ 

THIS RULE IS APPROPRIATE TO THE SELECTION OF MEMBERS OF A STATE
LEGISLATURE.  THE PEOPLE OF A STATE ARE SIMILARILY AFFECTED BY THE
ACTION OF THE STATE LEGISLATURE.  ITS FUNCTIONS ARE COMPREHENSIVE AND
PERVASIVE.  THEY ARE NOT SPECIALLY CONCENTRATED UPON THE NEEDS OF
PARTICULAR PARTS OF THE STATE OR ANY SEPARATE GROUP OF CITIZENS.  AS
THE COURT IN REYNOLDS SAID, EACH CITIZEN STANDS IN "THE SAME RELATION"
TO THE STATE LEGISLATURE.  ACCORDINGLY, VARIATIONS FROM SUBSTANTIAL
POPULATION EQUALITY IN ELECTIONS FOR THE STATE LEGISLATURE TAKE AWAY
FROM THE INDIVIDUAL VOTER THE EQUALITY WHICH THE CONSTITUTION
MANDATES.  THEY AMOUNT TO A DEBASEMENT OF THE CITIZEN'S VOTE AND OF
THIS CITIZENSHIP.  /3/ 

BUT THE SAME CANNOT BE SAID OF ALL LOCAL GOVERNMENTAL UNITS, AND
CERTAINLY NOT OF THE UNIT INVOLVED IN THIS CASE.  MIDLAND COUNTY'S
COMMISSIONERS COURT HAS SPECIAL FUNCTIONS-- DIRECTED PRIMARILY TO ITS
RURAL AREA AND RURAL POPULATION.  ITS POWERS ARE LIMITED AND
SPECIALIZED, IN LIGHT OF ITS MISSIONS.  RESIDENTS OF MIDLAND COUNTY DO
NOT BY ANY MEANS HAVE THE SAME RIGHTS AND INTERESTS AT STAKE IN THE
ELECTION OF THE COMMISSIONERS.  EQUAL PROTECTION OFTHEIR RIGHTS MAY
CERTAINLY TAKE INTO ACCOUNT THE REALITY OF THE RIGHTS AND INTERESTS OF
THE VARIOUS SEGMENTS OF THE VOTING POPULATION.  IT DOES NOT REQUIRE
THAT THEY ALL BE TREATED ALIKE, REGARDLESS OF THE STARK DIFFERENCE IN
THE IMPACT OF THE COMMISSIONERS COURT UPON THEM.  "EQUAL PROTECTION"
RELATES TO THE SUBSTANCE OF CITIZENS' RIGHTS AND INTERESTS.  IT DEMANDS
PROTECTION ADAPTED TO SUBSTANCE; IT DOES NOT INSIST UPON, OR EVEN
PERMIT, PRESCRIPTION BY ARBITRARY FORMULA WHICH WRONGLY ASSUMES THAT
THE INTERESTS OF ALL CITIZENS IN THE ELECTED BODY ARE THE SAME. 

IN MY JUDGMENT, THE COURT DEPARTS FROM REYNOLDS WHEN IT HOLDS,
BROADLY AND GENERALLY, THAT "THE FOURTEENTH AMENDMENT . . . FORBIDS THE
ELECTION OF LOCAL GOVERNMENT OFFICIALS FROM DISTRICTS OF DISPARATE
POPULATION."  ANTE, AT 478.  THIS HOLDING, LITERALLY APPLIED AS THE
COURT COMMANDS, COMPLETELY IGNORES THE COMPLEXITIES OF LOCAL GOVERNMENT
IN THE UNITED STATES-- COMPLEXITIES WHICH, REYNOLDS ITSELF STATES,
DEMAND LATITUDE OF PRESCRIPTIONS.  THE SIMPLICITY OF THE COURT'S RULING
TODAY DOES NOT COMPORT WITH THE LACK OF SIMPLICITY WHICH CHARACTERIZES
THE MISCELLANY WHICH CONSTITUTES OUR LOCAL GOVERNMENTS. 

        II. 

AS OF THE BEGINNING OF 1967, THERE WERE 81,253 UNITS OF LOCAL
GOVERNMENT IN THE UNITED STATES.  THIS FIGURE INCLUDES 3,049 COUNTY
GOVERNMENTS, 18,051 MUNICIPAL GOVERNMENTS, 17,107 TOWNSHIP GOVERNMENTS,
21,782 SCHOOL DISTRICTS, AND 21,264 OTHER SPECIAL DISTRICTS.  /4/
THESE UNITS VARY GREATLY IN POWERS, STRUCTURE, AND FUNCTION.  THE
CITIZEN IS USUALLY SUBJECT TO SEVERAL LOCAL GOVERNMENTS WITH
OVERLAPPING JURISDICTION. 

THE COURT IN THIS CASE CONCEDES THAT IN A "SPECIAL-PURPOSE UNIT OF
GOVERNMENT," THE RIGHTS OF CERTAIN CONSTITUENTS MAY BE MORE AFFECTED
THAN THE RIGHTS OF OTHERS.  IT IMPLIES THAT THE ONE MAN, ONE VOTE RULE
MAY NOT APPLY IN SUCH CASES.  SEE ANTE, AT 483-484.  BUT IT SAYS THAT
WE DO NOT HERE HAVE TO CONFRONT THE IMPLICATIONS OF SUCH A SITUATION. 
I DO NOT AGREE. 

I SUBMIT THAT THE PROBLEM PRESENTED BY MANY, PERHAPS MOST, COUNTY
GOVERNMENTS (AND BY MIDLAND COUNTY IN PARTICULAR) IS PRECISELY THE SAME
AS THOSE ARISING FROM SPECIAL-PURPOSE UNITS, HAVE ONLY SLIGHT IMPACT ON
SOME OF THEIR CONSTITUENTS AND A VAST AND DIRECT IMPACT ON OTHERS. 
THEY AFFECT DIFFERENT CITIZENS RESIDINGWITHIN THEIR GEORGRAPHICAL
JURISDICTIONS IN DRASTICALLY DIFFERENT WAYS.  /5/ 

STUDY OF COUNTY GOVERNMENT LEAVES ONE WITH TWO CLEAR IMPRESSIONS:
THAT THE VARIATIONS FROM UNIT TO UNIT ARE GREAT; AND THAT THE ROLE AND
STRUCTURE OF COUNTY GOVERNMENT ARE CURRENTLY IN A STATE OF FLUX.  /6/
COUNTY GOVERNMENTS DIFFER DIFFER IN EVERY SIGNIFICANT WAY: NUMBER OF
CONSTITUENTS, AREA GOVERNED, /7/  NUMBER OF COMPETING OR OVERLAPPING
GOVERNMENT UNITS WITHIN THE COUNTY, /8/  FORM, AND MEANS OF SELECTION
OF THE GOVERNING BOARD, /9/  SERVICES PROVIDED, /10/  THE NUMBER AND
FUNCTION OF INDEPENT COUNTY OFFICIALS, /11/  AND SOURCES OF REVENUE. 
/12/ 

SOME GENERALIZATIONS CAN BE MADE ABOUT COUNTY GOVERNMENTS.  FIRST,
MOST COUNTIES TODAY PERFORM CERTAIN BASIC FUNCTIONS DELEGATED BY THE
STATE:  ASSESSMENT OF PROPERTY, COLLECTION OF PROPERTY TAXES, RECORDING
OF DEEDS AND OTHER DOCUMENTS, MAINTENANCE OF RURAL ROADS, POOR RELIEF,
LAW ENFORECEMENT, AND THE ADMINISTRATION OF ELECTORAL AND JUDICIAL
FUNCTIONS.  SOME COUNTIES HAVE BEGUN TO DO MORE, ESPECIALLY BY THE
ASSUMPTION OF MUNICIPAL AND POLICY-MAKING FUNCTION.  /13/  BUT MOST
COUNTIES STILL ACT LARGELY AS ADMINISTRATIVE INSTRUMENTALITIES OF THE
STATE.  /14/ 

SECOND, "(THE ABSENCE OF A SINGLE CHIEF EXECUTIVE AND DIFFUSION OF
RESPONSIBILITY AMONG NUMEROUS INDEPENDENTLY ELECTED OFFICIALS ARE
GENERAL CHARACTERISTICS OF COUNTY GOVERNMENT IN THE UNITED STATES." 
/15/  THOSE WHO HAVE WRITTEN ON THE SUBJECT HAVE INVARIABLY POINTED TO
THE EXTENSIVE POWERS EXERCISED WITHIN THE GEOGRAPHICAL REGION OF THE
COUNTY BY OFFICIALS ELECTED ON A COUNTYWIDE BASIS AND BY SPECIAL
DISTRICTS ORGANIZED TO PERFORM SPECIFIC TASKS.  OFTEN THESE INDEPENDENT
OFFICIALS AND ORGANS PERFORM CRUCIAL FUNCTIONS OF GREAT IMPORTANCE TO
ALL THE PEOPLE WITHIN THE COUNTY.  /16/ 

THESE GENERALIZATIONS APPLY WITH PARTICULAR FORCE IN THIS CASE.  THE
POPULATION OF MIDLAND COUNTY IS CHIEFLY IN A SINGLE URBAN AREA.  /17/
THAT URBAN AREA HAS ITS OWN MUNICIPAL GOVERNMENT WHICH, BECAUSE OF HOME
RULE, /18/  HAS RELATIVE AUTONOMY AND AUTHORITY TO DEAL WITH URBAN
PROBLEMS.  IN CONTRAST, THE MIDLAND COUNTY GOVERNMENT LIKE COUNTY
GOVERNMENTS GENERALLY, ACTS PRIMARILY AS AN ADMINISTRATIVE ARM OF THE
STATE.  IT PROVIDES A CONVENIENT AGENCY FOR THE STATE TO COLLECT TAXES,
HOLD ELECTIONS, ADMINISTER JUDICIAL AND PEACE-KEEPING FUNCTION, IMPROVE
ROADS, AND PERFORM OTHER FUNCTIONS WHICH ARE THE ORDINARY DUTIES OF THE
STATE.  THE POWERS OF THE COMMISSIONERS COURT, WHICH IS THE GOVERNING
BODY OF MIDLAND COUNTY, ARE STRICTLY LIMITED BY STATUTE AND
CONSTITUTIONAL PROVISION.  /19/  ALTHOUGH A MERE LISTING OF THESE
AUTHORIZING STATUTES AND CONSTITUTIONAL PROVISIONS WOULD SEEM TO
INDICATE THAT THE COMMISSIONERS COURT HAS SIGNIFICANT AND GENERAL
POWER, THIS IMPRESSION IS SOMEWHAT ILLUSORY BECAUSE VERY OFTEN THE
PROVISIONS WHICH GRANT THE POWER ALSO CIRCUMSCRIBE ITS EXERCISE WITH
DETAILED LIMITATIONS. 

FOR EXAMPLE, THE PETITIONER CITES ART. VIII, SEC. 9, OF THE TEXAS
CONSTITUTION AND ARTICLE 2352 OF THE TEXAS CIVIL STATUTES AS GRANTING
THE COMMISSIONERS COURT AUTHORITY TO LEVY TAXES.  YET, AT THE TIME THIS
SUIT WAS TRIED, ART. VIII, SEC. 9, PROVIDED THAT NO COUNTY COULD LEVY A
TAX IN EXCESS OF 80 CENTS ON $100 PROPERTY VALUATION.  AND ARTICLE 2352
ALLOCATED THAT 80 CENTS AMONG THE FOUR "CONSTITUTIONAL PURPOSES"
MENTIONED IN ART. VIII, SEC. 9 (NOT MORE THAN 25 CENTS FOR GENERAL
COUNTY PURPOSES, NOT MORE THAN 15 CENTS FOR THE JURY FUND, NOT MORE
THAN 15 CENTS FOR ROADS AND BRIDGES, AND NOT MORE THAN 25 CENTS FOR
PERMANENT IMPROVEMENTS).  /20/ 

ANOTHER EXAMPLE IS THE AUTHORITY TO ISSUE BONDS.  IT IS TRUE, AS THE
MAJORITY NOTES, THAT THE COMMISSIONERS COURT DOES HAVE THIS AUTHORITY. 
YET TITLE 22 OF THE TEXAS CIVIL STATUTES SETS UP A DETAILED CODE
CONCERNING HOW AND FOR WHAT PURPOSES BONDS MAY BE ISSUED. 
SIGNIFICANTLY, ARTICLE 701 PROVIDES THAT COUNTY BONDS "SHALL NEVER BE
ISSUED FOR ANY PURPOSE" UNLESS THE BOND ISSUE HAS BEEN SUBMITTED TO THE
QUALIFIED PROPERTY-TAXPAYING VOTERS OF THE COUNTY. 

MORE IMPORTANT THAN THE STATUTORY AND CONSTITUTIONAL LIMITATIONS,
THE LIMITED POWER AND FUNCTION OF THE COMMISSIONERS COURT ARE REFLECTED
IN WHAT IT ACTUALLY DOES.  THE RECORD AND BRIEFS DO NOT GIVE A COMPLETE
PICTURE OF THE WORKINGS OF THE COMMISSIONERS COURT.  BUT IT IS APPARENT
THAT THE COMMISSIONERS ARE PRIMARILY CONCERNED WITH RURAL AFFAIRS, AND
MORE PARTICULARLY WITH RURAL ROADS.  ONE COMMISSIONER TESTIFIED BELOW
THAT THE LARGEST ITEM IN THE COUNTY BUDGET WAS FOR ROADS AND BRIDGES. 
/21/  AND, ACCORDING TO THAT COMMISSIONER, THE COUNTY DOES NOT MAINTAIN
STREETS WITHIN THE CITY OF MIDLAND.  THE COMMISSIONERS SEEM QUITE
CONTENT TO LET THE CITY COUNCIL HANDLE CITY AFFAIRS.  "THE THING ABOUT
IT IS, THE CITY OF MIDLAND HAS THE CITY COUNCIL AND THA MAYOR TO RUN
ITS BUSINESS, . . . AND WE HAVE A WHOLE COUNTY TO RUN . . . " 

AS THE TEXAS SUPREME COURT STATED: 

"THEORETICALLY, THE COMMISSIONERS COURT IS THE GOVERNING BODY OF THE
COUNTY AND THE COMMISSIONERS REPRESENT ALL THE RESIDENTS, BOTH URBAN
AND RURAL, OF THE COUNTY.  BUT DEVELOPMENTS DURING THE YEARS HAVE
GREATLY NARROWED THE SCOPE OF THE FUNCTIONS OF THE COMMISSIONERS COURT
AND LIMITED ITS MAJOR RESPONSIBILITIES TO THE NONURBAN AREAS OF THE
COUNTY.  IT HAS COME TO PASS THAT THE CITY GOVERNMENT WITH ITS
LEGISLATIVE, EXECUTIVE AND JUDICIAL BRANCHES, IS THE MAJOR CONCERN OF
THE CITY DWELLERS AND THE ADMINISTRATION OF THE AFFAIRS OF THE COUNTY
IS THEM AJOR CONCERN OF THE RURAL DWELLERS."  406 S.W.2D, AT 428. 

MOREOVER, EVEN WITH REGARD TO THOSE AREAS SPECIFICALLY DELEGATED TO
THE COUNTY GOVERNMENT BY STATUTE OR CONSTITUTIONAL PROVISION, THE
COMMISSIONERS COURT SOMETIMES DOES NOT HAVE THE POWER TO MAKE
DECISIONS.  WITHIN THE COUNTY GOVERNMENT THERE ARE NUMEROUS DEPARTMENTS
WHICH ARE CONTROLLED BY OFFICIALS ELECTED INDEPENDENTLY OF THE
COMMISSIONERS COURT AND OVER WHOM THE COMMISSIONERS COURT DOES NOT
EXERCISE CONTROL.  THE COMMISSIONERS VIEW THEMSELVES PRIMARILY AS ROAD
COMMISSIONERS.  "THE OTHER DEPARTMENT HEADS REALLY HAVE THE SAY IN THAT
DEPARTMENT.  WE MERELY APPROVE THE SALARY.  WE DO NOT HIRE ANYONE IN
ANY DEPARTMENT IN MIDLAND COUNTY EXCEPT THE ROAD DEPARTMENT.  THE
DEPARTMENT HEADS OF THE OTHER DEPARTMENTS DO HIRE THE EMPLOYEES." 
/22/ 

AS THE TEXAS SUPREME COURT STATED, "THE COUNTY COMMISSIONERS COURT
IS NOT CHARGED WITH THE MANAGEMENT AND CONTROL OF ALL OF THE COUNTY'S
BUSINESS AFFAIRS . . . (THE VARIOUS OFFICIALS ELECTED BY ALL THE VOTERS
OF THE COUNTY HAVE SPHERES THAT ARE DELEGATED TO THEM BY LAW AND WITHIN
WHICH THE COMMISSIONERS COURT MAY NOT INTERFERE OR USURP."  406 S.W.2D,
AT 428.  THESE OFFICIALS, ELECTED ON A DIRECT, ONE MAN, ONE VOTE,
COUNTYWIDE BASIS, INCLUDE THE ASSESSOR AND COLLECTOR OF TAXES, THE
COUNTY ATTORNEY, THE SHERIFF, THE TREASURER, THE COUNTY CLERK, AND THE
COUNTY SURVEYOR.  /23/  THE COUNTY JUDGE, WHO IS THE PRESIDING OFFICER
OF THE COMMISSIONERS COURT, IS ALSO ELECTED ON A COUNTYWIDE BASIS. 
/24/  OTHER COUNTY OFFICIALS AND EMPLOYEES ARE APPOINTED BY THE
COMMISSIONERS COURT.  /25/ 

THE ELECTED OFFICIALS ARE GENERALLY RESIDENTS OF THE CITY, PROBABLY
BECAUSE OF ITS PREPONDERANT VOTE.  A COMMISSIONER TESTIFIED THAT "EVERY
ELECTED OFFICIAL . . . IN MIDLAND COUNTY TODAY (EXCEPT THE THREE RURAL
COMMISSIONERS), AND IT HAS BEEN WAY BACK FOR YEARS, HAS BEEN ELECTED BY
THE PEOPLE THAT LIVE HERE IN THE CITY LIMITS OF MIDLAND."  ANOTHER
COMMISSIONER TESTIFIED THAT OF ABOUT 150 EMPLOYEES OF THE COUNTY, ONLY
FOUR OF THOSE WHO WERE NOT ELECTED LIVED IN THE RURAL PRECINCTS.  OF
ALL THE ELECTED OFFICIALS ONLY THE THREE RURAL COMMISSIONERS LIVED
OUTSIDE THE CITY LIMITS.  /26/  AND, AS I HAVE NOTED, THE FIFTH MEMBER
OF THE COMMISSIONERS COURT, ITS CHAIRMAN, IS THE COUNTY JUDGE WHO IS
ELECTED AT LARGE IN THE COUNTY.  /27/  IT IS APPARENT THAT THE CITY
PEOPLE HAVE MUCH MORE CONTROL OVER THE COUNTY GOVERNMENT THAN THE
ELECTION OF THE COMMISSIONERS COURT WOULD INDICATE.  MANY OF THE COUNTY
FUNCTIONS WHICH MOST CONCERN THE CITY, FOR EXAMPLE, TAX ASSESSMENT AND
COLLECTION, ARE UNDER THE JURISDICTION OF OFFICIALS ELECTED BY THE
COUNTY AT LARGE.  /28/     IN SUM, THE COMMISSIONERS COURT'S FUNCTIONS
AND POWERS ARE QUITE LIMITED, AND THEY ARE DEFINED AND RESTRICTED SO
THAT THEIR PRIMARY AND PREPONDERANT IMPACT IS ON THE RURAL AREAS AND
RESIDENTS.  THE EXTENT OF ITS IMPACT ON THE CITY IS QUITE LIMITED.  TO
THE EXTENT THAT THERE IS DIRECT IMPACT ON THE CITY, THE RELEVANT
POWERS, IN IMPORTANT RESPECTS, ARE PLACED IN THE HANDS OF OFFICIALS
ELECTED ON A ONE MAN, ONE VOTE BASIS.  INDEED, VIEWED IN TERMS OF THE
REALITIES OF RIGHTS AND POWERS, IT APPEARS THAT THE CITY RESIDENTS HAVE
THE POWER TO ELECT THEOFFICIALS WHO ARE MOST IMPORTANT TO THEM, AND THE
RURAL RESIDENTS HAVE THE ELECTORAL POWER WITH RESPECT TO THE
COMMISSIONERS COURT WHICH EXERCISES POWERS IN WHICH THEY ARE PRIMARILY
INTERESTED.     IN FACE OF THIS, TO HOLD THAT "NO SUBSTANTIAL
VARIATION" FROM EQUAL POPULATION MAY BE ALLOWED UNDER THE EQUAL
PROTECTION CLAUSE IS TO IGNORE THE SUBSTANCE OF THE RIGHTS AND POWERS
INVOLVED.  IT DENIES-- IT DOES NOT IMPLEMENT-- SUBSTANTIVE EQUALITY OF
VOTING RIGHTS.  IT IS LIKE INSISTING THAT EACH STOCKHOLDER OF A
CORPORATION HAVE ONLY ONE VOTE EVEN THOUGH THE STAKE OF SOME MAY BE $1
AND THE STAKE OF OTHERS $1,000.  THE CONSTITUTION DOES NOT FORCE SUCH A
RESULT.  EQUAL PROTECTION OF THE LAWS IS NOT SERVED BY IT. 

DESPITE THE FACT, AS I HAVE SHOWN, THAT MANY GOVERNMENTAL POWERS IN
THE COUNTY ARE EXERCISED BY OFFICIALS ELECTED AT LARGE AND THAT THE
POWERS OF THE COMMISSIONERS COURT ARE LIMITED, THE COURT INSISTS THAT
THE COMMISSIONERS COURT IS A UNIT WITH "GENERAL GOVERNMENTAL POWERS." 
THIS SIMPLY IS NOT SO EXCEPT IN THE MOST SUPERFICIAL SENSE.  THE COURT
IS IMPRESSED BY THE FACT THAT THE JURISDICTION OF THE COMMISSIONERS
COURT EXTENDS OVER THE ENTIRE AREA OF THE COUNTY.  BUT THIS IS MORE
FORM THAN REALITY. 

SUBSTANCE, NOT SHIBBOLETH, SHOULD GOVERN IN THIS ADMITTEDLY COMPLEX
AND SUBTLE AREA; AND THE SUBSTANCE IS THAT THE GEOGRAPHICAL EXTENT OF
THE COMMISSIONERS COURT IS OF VERY LIMITED MEANING.  MIDLAND COUNTY'S
COMMISSIONERS COURT HAS ITS PRIMARY FOCUS IN NONURBAN AREAS AND UPON
THE NONURBAN PEOPLE.  TRUE, THE COUNTY'S REVENUES COME LARGELY FROM THE
CITY OF MIDLAND.  BUT THE COMMISSIONERS COURT FIXES THE TAX RATE
SUBJECT TO THE SPECIFIC LIMITATIONS PROVIDED BY THE LEGISLATURE.  IT
MUST SPEND TAX REVENUES IN THE CATEGORIES AND PERCENTAGES WHICH THE
LEGISLATURE FIXES.  TAXES ARE ASSESSED AND COLLECTED, NOT BY IT, BYT BY
AN OFFICIAL ELECTED ON A COUNTYWIDE BASIS.  IT IS QUITE LIKELY THAT IF
THE CITY DWELLERS WERE GIVEN CONTROL OF THE COMMISSIONERS COURT, THEY
WOULD REDUCE THE LOAD BECAUSE IT IS SPENT PRIMARILY IN THE RURAL AREA. 
THIS IS A STATE MATTER.  IF THE STATE LEGISLATURE, IN WHICH PRESUMABLY
THE CITY DWELLERS ARE FAIRLY REPRESENTED (REYNOLDS V. SIMS), WISHES TO
REDUCE THE LOAD, IT MAY DO SO.  BUT UNLESS WE ARE READY TO ADOPT THE
POSITION THAT THE FEDERAL CONSTITUTION FORBIDS A STATE FROM TAXING CITY
DWELLERS TO AID THEIR RURAL NEIGHBORS, THE FACT THAT CITY DWELLERS PAY
MOST TAXES SHOULD NOT DETERMINE THE COMPOSITION OF THE COUNTY GOVERNING
BODY.  WE SHOULD NOT USE TAX IMPACT AS THE SOLE OR CONTROLLING BASIS
FOR VOTE DISTRIBUTION.  IT IS MERELY ONE IN A NUMBER OF FACTORS,
INCLUDING THE FUNCTIONAL IMPACT OF THE COUNTY GOVERNMENT, WHICH SHOULD
BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER A PARTICULAR VOTING
ARRANGEMENT RESULTS IN REASONABLE RECOGNITION OF THE RIGHTS AND
INTERESTS OF CITIZENS.  CERTAINLY, NEITHER TAX IMPACT NOR THE
RELATIVELY FEW SERVICES RENDERED WITHIN THE CITY OF MIDLAND SHOUDL
COMPEL THE STATE TO VEST PRACTICALLY ALL VOTING POWER IN THE CITY
RESIDENTS TO THE VIRTUAL DENIAL OF A VOICE TO THOSE WHO ARE DEPENDENT
ON THE COUNTY GOVERNMENT FOR ROADS, WELFARE, AND OTHER ESSENTIAL
SERVICES. 

        III. 

I HAVE SAID THAT IN MY JUDGMENT WE SHOULD NOT DECIDE THIS CASE BUT
SHOULD GIVE TEXAS A CHANCE TO COME UP WITH AN ACCEPTABLE RESULT. 
TEXAS' OWN COURTS HOLD THAT THE PRESENT SYSTEM IS CONSTITUTIONALLY
INTOLERABLE.  THE 1963 POPULATION ESTIMATES RELIED UPON IN THIS CASE
SHOW THAT THE DISTRICT WHICH INCLUDES MOST OF THE CITY OF MIDLAND WITH
67,906 PEOPLE HAS ONE REPRESENTATIVE, AND THE THREE RURAL DISTICTS,
EACH OF WHICH HAS ITS OWN REPRESENTATIVE, HAVE 852; 414; AND 828 PEOPLE
RESPECTIVELY.  WHILE IT MAY BE THAT THIS CANNOT BE REGARDED AS
SATISFYING THE EQUAL PROTECTION CLAUSE UNDER ANY VIEW, I SUGGEST THAT
APPLYING THE COURT'S FORMULA MERELY ERRS IN THE OPPOSITE DIRECTION:
ONLY THE CITY POPULATION WILL BE REPRESENTED, AND THE RURAL AREAS WILL
BE ELIMINATED FROM A VOICE IN THE COUNTY GOVERNMENT TO WHICH THEY MUST
LOOK FOR ESSENTIAL SERVICES.  WITH ALL RESPECT, I SUMBIT THAT THIS IS A
DESTRUCTIVE RESULT.  IT KILLS THE VERY VALUE WHICH IT PURPORTS TO
SERVE.  TEXAS SHOULD HAVE A CHANCE TO DEVISE A SCHEME WHICH, WITHIN
WIDE TOLERANCE, ELIMINATES THE GROSS UNDERREPRESENTATION OF THE CITY,
BUT AT THE SAME TIME PROVIDES AN ADEQUATE, EFFECTIVE VOICE FOR THE
NONURBAN, AS WELL AS THE URBAN, AREAS AND PEOPLES.  /29/ 

/1/  THE TEXAS SUPREME COURT NOTED THAT THE COMMISSIONERS COURT, AND
NOT TEXAS' JUDICIAL COURTS, HAS POWER TO REDISTRICT.  THIS VIEW MAY
PROVE TO BE TROUBLESOME, BUT WE ARE NOT BOUND TO ANTICIPATE EITHER THAT
THE COMMISSIONERS COURT WILL NOT PROPERLY DO THE JOB OR THAT TEXAS WILL
NOT OTHERWISE PUT ITS HOUSE IN ORDER IN MIDLAND COUNTY. 

/2/  REYNOLDS V. SIMS DID NOT PUT THE EQUAL PROTECTION CLAUSE TO A
RADICAL OR NEW USE.  ITS HOLDING IS IN THE MAINSTREAM OF OUR EQUAL
PROTECTION CASES.  OUR CASES HOLD THAT PEOPLE WHO STAND IN THE SAME
RELATIONSHIP TO THEIR GOVERNMENT CANNOT BE TREATED DIFFERENTLY BY THAT
GOVERNMENT.  TO DO SO WOULD BE TO MARK THEM AS INFERIOR, "IMPLYING
INFERIORITY IN CIVIL SOCIETY" (STRAUDER V. WEST VIRGINIA, 100 U.S. 303,
308 (1880), OR "INFERIORITY AS TO THEIR STATUS IN THE COMMUNITY"
(BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 494 (1954).  IT WOULD BE TO
TREAT THEM AS IF THEY WERE, SOMEHOW, LESS THAN PEOPLE. 

/3/  "SINCE LEGISLATURES ARE RESPONSIBLE FOR ENACTING LAWS BY WHICH
ALL CITIZENS ARE TO BE GOVERNED, THEY SHOULD BE BODIES WHICH ARE
COLLECTIVELY RESPONSIVE TO THE POPULAR WILL.  AND THE CONCEPT OF EQUAL
PROTECTION HAS BEEN TRADITIONALLY VIEWED AS REQUIRING THE UNIFORM
TREATMENT OF PERSONS STANDING IN THE SAME RELATION TO THE GOVERNMENTAL
ACTION QUESTIONED OR CHALLENGED.  WITH RESPECT TO THE ALLOCATION OF
LEGISLATIVE REPRESENTATION, ALL VOTERS, AS CITIZENS OF A STATE, STAND
IN THE SAME RELATION REGARDLESS OF WHERE THEY LIVE . . . TO THE EXTENT
THAT A CITIZEN'S RIGHT TO VOTE IS DEBASED, HE IS THAT MUCH LESS A
CITIZEN."  377 U.S.,AT 567. 

/4/  U.S. DEPT. OF COMMERCE, BUREAU OF THE CENSUS, CENSUS OF
GOVERNMENTS 1967, GOVERNMENTAL UNITS IN 2967, AT 1 (PRELIM.  REPT. 
COT. 1967). 

/5/  IF THESE COMPLEXITIES DO NOT EXIST IN A GIVEN CASE (THAT IS, IF
THE FUNCTIONS OF THE GOVERNING UNIT INVOLVED HAVE AN ESSENTIALLY EQUAL
IMPACT UPON ALL THE CITIZENS WITHIN ITS GEOGRAPHICAL JURISDICTION),
THEN THE ONE MAN, ONE VOTE RULE WOULD APPLY AS IT DID IN REYNOLDS. 
SOME CITY COUNCILS, FOR EXAMPLE, ARE IN EFFECT MINIATURE STATE
LEGISLATURES.  SOME COUNTY GOVERNING UNITS HAVE GEOGRAPHICAL
JURISDICTION WHICH IS CO-EXTENSIVE WITH A CITY OR WHICH INCLUDES ONLY
REASONABLY HOMOGENEOUS RURAL AREAS. 

/6/  SEE C. ADRIAN, STATE AND LOCAL GOVERNMENTS 210-217 (1960); C.
SNIDER, LOCAL GOVERNMENT IN RURAL AMERICA 119-139 (1957) (HEREAFTER
CITED AS SNIDER); INTERNATIONAL UNION OF LOCAL AUTHORITIES, LOCAL
GOVERNMENT IN THE UNITED STATES OF AMERICA 13-14 (1961) (HEREAFTER
CITED AS LOCAL GOVERNMENT); NATIONAL MUNICIPAL LEAGUE, MODEL COUNTY
CHARTER XI-XXXVIII (1956).  SEE GENERALLY S. DUNCOMBE, COUNTY
GOVERNMENT IN AMERICA (1966) (HEREAFTER CITED AS DUNCOMBE). 

/7/  SEE DUNCOMBE 3-5. 

/8/  SEE U.S. DEPT. OF COMMERCE, BUREAU OF THE CENSUS, CENSUS OF
GOVERNMENTS:  1962, GOVERNMENTAL ORGANIZATION, TABLE 17. 

/9/  SEE U.S. DEPT OF COMMERCE, BUREAU OF THE CENSUS, GOVERNING
BOARDS OF COUNTY GOVERNMENTS:  1965. 

/10/  SEE DUNCOME 70-102. 

/11/  SEE DUNCOMBE 41063. 

/12/  SEE U.S. SEPT. OF COMERCE, BUREAU OF THE CENSUS, CENSUS OF
GOVERNMENTS:  1962, FINANCES OF COUNTY GOVERNMENTS, TABLE 11. 

/13/  SEE DUNCOMBE 13-14. 

/14/  SEE W. ANDERSON & E. WEIDNER, STATE AND LOCAL GOVERNMENT 30-31
(1951); SNIDER 131-134. 

/15/  LOCAL GOVERNMENT, AT 14. 

/16/  SEE, E.G., IBID; DUNCOMBE 41-63; SNIDER 44-45, 252-254. 

/17/  IN 1962 THE POPULATION OF MIDLAND COUNTY WAS 67,717.  MORE
THAN 62,000 LIVED IN THE URBAN AREA GOVERNED BY THE MUNICIPAL
GOVERNMENT.  U.S. DEPT. OF COMMERCE, BUREAU OF THE CENSUS, CENSUS OF
GOVERNMENTS:  1962, GOVERNMENTAL ORGANIZATION 186. 

/18/  TEX. CONST., ART. XI, SEC. 5, R. YOUNG, THE PLACE SYSTEM IN
TEXAS ELECTIONS (INSTITUTE OF PUBLIC AFFAIRS, UNIVERSITY OF TEXAS,
1965) 38. 

/19/  SEE W. BENTON, TEXAS, ITS GOVERNMENT AND POLITICS 360-362
(1966) (HEREAFTER CITED AS BENTON); S. MACCORKLE AND D. SMITH, TEXAS
GOVERNMENT 339-340 (1964) (HEREAFTER CITED AS MACCORKLE); C. PATTERSON,
S. MALISTER, AND G. HESTER, STATE AND LOCAL GOVERNMENT IN TEXAS 384
385, 388 (1961) (HEREAFTER CITED AS PATTERSON); MUNICIPAL AND COUNTY
GOVERNMENT 113-114 (J. CLAUNCH ED. 1961); F. GANTT, I. DAWSON, AND L.
HAGARD (EDS.), GOVERNING TEXAS, DOCUMENTS AND READINGS 254 (1966); C.
MCCLESKEY, THE GOVERNMENT AND POLITICS OF TEXAS 303-304, 305 (1966)
(HEREAFTER CITED AS MCCLESKEY).  THERE IS A HOME-RULE PROVISION IN THE
TEXAS CONSTITUTION WHICH APPLIES TO COUNTIES, ART. IX, SEC. 3.  BUT
THAT PROVISION IS VIRTUALLY UNWORKABLE AND, AS OF 1966, THERE WERE NO
COUNTIES OPERATING UNDER HOME RULE.  BENTON 372-375.  SEE ALSO MCLESKEY
304, AND MACCORKLE 341. 

/20/  THE 1967 AMENDMENT TO ART. VIII, SEC. 9, MAINTAINS THE 80 CENT
LIMITATION AND STILL SPEAKS OF "THE FOUR CONSTITUTIONAL PURPOSES."  IT
PROVIDES, THOUGH, THAT THE COUNTY "MAY" PUT ALL TAX MONEY INTO ONE
GENERAL FUND WITHOUT REGARD TO THE PURPOSE OR THE SOURCE OF EACH TAX. 
FOR A DISCUSSION OF THE COUNTY'S TAXING POWER AND OTHER SOURCES OF
COUNTY REVENUE, SEE BENTON 367-368. 

/21/  THIS TESTIMONY APPEARS IN THE TYPED TRANSCRIPT OF RECORD BUT
NOT IN THE PORTIONS PRINTED BY THE PARTIES. 

/22/  SEE N. 21, SUPRA.  COMMENTATORS ON TEXAS LOCAL GOVERNMENT HAVE
NOTED THIS LACK OF CONTROL BY THE COMMISSIONERS COURT.  SEE, E.G.,
MACCORKLE 344-345; MCCLESKEY 307, 310; BENTON 369. 

/23/  ARTICLE VIII, SEC. 14, ART. V, SEC. 21; ART. V, SEC. 23; ART.
SVI, SEC. 44; ART. V, SEC. 20; AND ART. SVI, SEC. 44, OF THE TEXAS
CONSTITUTION RESPECTIVELY. 

/24/  ARTICLE V, SECS. 15, 18, OF THE TEXAS CONSTITUTION. 

/25/  FOR A DESCRIPTION OF COUNTY OFFICIALS GENERALLY AND OF THEIR
FUNCTIONS, SEE MCLESKEY 306-310, MACCORKLE 335-339, AND PATTERSON 390
392.  FOR A LISTING OF COUNTY OFFICIALS WHO ARE ELECTED SEE U.S. DEPT.
OF COMMERCE, BUREAU OF THE CENSUS, CENSUS OF GOVERNMENTS 1967, ELECTIVE
OFFICES OF STATE AND LOCAL GOVERNMENTS 117-118 (PRELIM.  REPT.  AUG.
1967). 

/26/  SEE N. 21, SUPRA. 

/27/  NOTE 24, SUPRA.  THERE WAS TESTIMONY BELOW TO THE EFFECT THAT
THE COUNTY JUDGE VOTES ONLY IN CASE OF A TIE VOTE.  BUT IT APPEARS THAT
THIS LIMITATION MAY BE SELF-IMPOSED.  "THE COUNTY JUDGE ENJOYS EQUAL
VOTING RIGHTS WITH ALL THE OTHER MEMBERS OF THE COMMISSIONERS' COURT,
WHICH INCLUDES THE RIGHT TO MAKE OR SECOND ANY MOTION AND THE RIGHT TO
VOTE WHETHER THERE BE A TIE AMONG THE VOTES OF OTHER MEMBERS OF THE
COURT OF NOT."  1 OPINIONS OF THE ATTORNEY GENERAL OF TEXAS 453 (NO. 0
1716, 1939).  SEE MCLESKEY 307, N. 27. 

/28/  THE ASSESSOR AND COLLECTOR OF TAXES IS ELECTED BY THE
QUALIFIED VOTERS OF THE COUNTY AT LARGE.  TEX. CONST., ART. VIII, SEC.
14; U.S. DEPT. OF COMMERCE, BUREAU OF THE CENSUS, CENSUS OF GOVERNMENTS
1967, ELECTIVE OFFICES OF STATE AND LOCAL GOVERNMENTS 117 (PRELIM. 
REPT.  AUG. 1967).  THE COMMISSIONERS COURT HAS POWER TO ADJUST THE
ASSESSOR AND COLLECTOR'S VALUATION.  ART. VIII, SEC. 18, OF THE TEXAS
CONSTITUTION.  HOWEVER, TESTIMONY BELOW INDICATED THAT THE
COMMISSIONERS COURT SITS TO HEAR TAXPAYER COMPLAINTS ONLY A FEW DAYS
EACH YEAR.  THE COMMISSIONERS COURT DOES NOT GO OVER THE ASSESSOR AND
COLLECTOR'S TAX RENDITION SHEETS BEFORE HE SENDS NOTICES TO THE
TAXPAYERS. 

/29/  CF. WEINSTEIN, THE EFFECT OF THE FEDERAL REAPPORTIONMENT
DECISIONS ON COUNTIES AND OTHER FORMS OF MUNICIPAL GOVERNMENT, 65
COL.L.REV.  21, 40-49 (1965). 

MR. JUSTICE STEWART, DISSENTING. 

I WOULD DISMISS THE WRIT AS IMPROVIDENTLY GRANTED FOR THE REASONS
STATED BY MR. JUSTICE HARLAN AND MR. JUSTICE FORTAS. 

SINCE THE COURT DOES REACH THE MERITS, HOWEVER, I ADD THAT I AGREE
WITH MOST OF WHAT IS SAID IN THE THOROUGH DISSENTING OPINION OF MR.
JUSTICE FORTAS.  INDEED, I WOULD JOIN THAT OPINION WERE IT NOT FOR THE
AUTHOR'S UNQUESTIONING ENDORSEMENT OF THE DOCTRINE OF REYNOLDS V. SIMS,
377 U.S. 533.  I CONTINUE TO BELIEVE THAT THE COURT'S OPINION IN THAT
CASE MISAPPLIED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
- THAT THE APPORTIONMENT OF THE LEGISLATIVE BODY OF A SOVEREIGN STATE,
NO LESS THAN THE APPORTIONMENT OF A COUNTY GOVERNMENT, IS FAR TOO
SUBTLE AND COMPLICATED A BUSINESS TO BE RESOLVED AS A MATTER OF
CONSTITUTIONAL LAW IN TERMS OF SIXTH-GRADE ARITHMETIC.  MY VIEWS IN
THAT SCORE, SET OUT AT LENGTH ELSEWHERE, /1/  CLOSELY PARALLEL THOSE
EXPRESSED BY MR. JUSTICE FORTAS IN THE PRESENT CASE. 

/1/  LUCAS V. COLORADO GENERAL ASSEMBLY, 377 U.S. 713, 744
(DISSENTING OPINION). 

LYNDON L. OLSON ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

W. B. BROWDER, JR., AND F. H. PANNILL ARGUED THE CAUSE AND FILED A
BRIEF FOR RESPONDNETS. 

FRANCIS X. BEYTAGH, JR., BY SPECIAL LEAVE OF COURT, ARGUED THE CAUSE
FOR THE UNITED STATES, AS AMICUS CURIAE, URGING REVERSAL.  WITH HIM ON
THE BRIEF WERE ACTING SOLICITOR GENERAL SPRITZER AND ASSISTANT ATTORNEY
GENERAL DOAR.     LOUIS J. LEFKOWITZ, ATTORNEY GENERAL, AND DANIEL M.
COHEN AND ROBERT W. IMRIE, ASSISTANT ATTORNEYS GENERAL, FILED A BRIEF
FOR THE STATE OF NEW YORK, AS AMICUS CURIAE, URGING REVERSAL. 
..END :



JOHNSON V. MASSACHUSETTS, 390 U.S. 511 


       JOHNSON V. MASSACHUSETTS. 

        CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

        NO. 702.  ARGUED MARCH 6-7, 1968.-- DECIDED APRIL 1, 1968. 


AFTER HEARING ORAL ARGUMENT AND STUDYING THE RECORD OF THIS CASE
INVOLVING THE ISSUE OF THE VOLUNTARINESS OF A CONFESSION, THE COURT
DISMISSES THE WRIT OF CERTIORARI AS IMPROVIDENTLY GRANTED. 

352 MASS. 311, 225 N.E.2D 360, CERTIORARI DISMISSED. 

PER CURIAM. 

IN 1964 PETITIONER WAS TRIED AND CONVICTED IN A MASSACHUSETTS
SUPERIOR COURT FOR MURDER, ARMED ROBBERY, AND OTHER OFFENSES.  THE
CONVICTION WAS AFFIRMED BY THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS.  COMMONWEALTH V. JOHNSON, 352 MASS. 311, 225 N.E.2D
360.  WE GRANTED CERTIORARI BECAUSE THERE APPEARED TO BE SUBSTANTIAL
QUESTIONS CONCERNING THE VOLUNTARINESS OF A CONFESSION OF PETITIONER
WHICH WAS ADMITTED IN EVIDENCE AT HIS TRIAL.  AFTER ORAL ARGUMENT AND
STUDY OF THE RECORD, WE HAVE REACHED THE CONCLUSION THAT THE RECORD
RELEVANT TO THE CONSTITUTIONAL CLAIMS NOW ASSERTED IS INSUFFICIENT TO
PERMIT DECISION OF THOSE CLAIMS.  /1/  THE WRIT IS THEREFORE DISMISSED
AS IMPROVIDENTLY GRANTED.  CF. SMITH V. MISSISSIPPI, 373 U.S. 238;
MASSACHUSETTS V. PAINTEN, 389 U.S. 560. 

              IT IS SO ORDERED. 

/1/  PETITIONER'S CLAIM ON VOIR DIRE WAS THAT HIS CONFESSION WAS
BEATEN OUT OF HIM BY POLICE.  THE TRIAL JUDGE FOUND AS A FACT THAT IT
WAS NOT.  AT THE TRIAL ITSELF PETITIONER DID NOT ATTACK THE
VOLUNTARINESS OF THE CONFESSION ON ANY OTHER GROUND, OR RAISE THE OTHER
CONSTITUTIONAL CHALLENGES ARGUED IN THIS COURT.  THE DEFENSE AT THE
TRIAL WAS PRIMARILY DIRECTED AT PERSUADING THE JURY NOT TO IMPOSE THE
DEATH PENALTY.  THE PETITIONER MADE AN UNSWORN STATEMENT TO THE JURY AT
THE CLOSE OF SUMMATIONS IN WHICH HE SAID, "ALL THE EVIDENCE WHICH THE
PROSECUTOR PRESENTED TO YOU WAS TRUE.  THERE WAS NO SENSE IN MY TAKING
THE STAND BECAUSE ALL THE EVIDENCE POINTS TO ME. . . . ALL THAT I ASK
IS JUST CLEMENCY.  . . . I PUT MY LIFE INTO YOUR HANDS.  PLEASE
RECOMMEND CLEMENCY, LIFE IMPRISONMENT." 

MR. JUSTICE MARSHALL, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
FORTAS JOIN, DISSENTING. 

PETITIONER WAS CONVICTED OF THE FIRST-DEGREE MURDER OF A POLICE
OFFICER AND SENTENCED TO DEATH.  HE URGES THAT AN INVOLUNTARY
CONFESSION WAS USED IN EVIDENCE AGAINST HIM, IN VIOLATION OF DUE
PROCESS. 

THE FACTS CONCERNING THE MAKING OF THE STATEMENT ARE NOT IN
CONTROVERSY.  AFTER THE SHOOTING OF THE POLICE OFFICER IN THE EVENING
OF AUGUST 1, 1963, PETITIONER DROVE OFF IN A CAR.  HE WAS SEEN BY OTHER
POLICE OFFICERS WHO HAD BEEN CALLED TO THE SCENE BY A POLICE ALARM AND
WHO PROCEEDED TO PURSUE HIM IN THEIR CAR.  AFTER A CHASE AT HIGH SPEEDS
FOR SEVERAL BLOCKS, DURING THE COURSE OF WHICH PETITIONER'S AUTOMOBILE
STRUCK A WALL AND CAROMED OFF SEVERAL PARKED CARS, PETITIONER CRASHED
INTO A BUS.  HE LIMPED AWAY FROM THE HEAVILY DAMAGED CAR IN AN ATTEMPT
TO FLEE BUT WAS ALMOST IMMEDIATELY APPREHENDED BY THE POLICE. 

PETITIONER WAS TAKEN TO A POLICE STATION AND BOOKED AT 9:35 P.M.  HE
WAS FIRST PLACED IN A CELL AND THEN TAKEN TO POLICE HEADQUARTERS
SOMETIME AFTER 10:15 P.M.  BETWEEN MIDNIGHT AND 5 A.M. HE WAS PLACED IN
A LINEUP FOR IDENTIFICATION PURPOSES UPON FOUR SEPARATE OCCASIONS. 
DURING THIS PERIOD PETITIONER WAS CONSTANTLY SURROUNDED BY LARGE
NUMBERS OF POLICEMEN.  VARIOUS POLICE WITNESSES ESTIMATED THE NUMBER OF
OFFICERS PRESENT IN THE LINEUP ROOM ALONE AT FROM 45 TO 100, AND AT
LEAST 32 OFFICERS TESTIFIED AT THE HEARING ON THE NEW TRIAL MOTION TO
HAVING HAD SOME CONTACT WITH PETITIONER DURING THE COURSE OF THE
NIGHT.  NUMEROUS WITNESSES IDENTIFIED PETITIONER AS THE KILLER DURING
THE FOUR LINEUPS, ALTHOUGH HE CONTINUALLY MAINTAINED HIS INNOCENCE IN
THE FACE OF THEIR ACCUSATIONS.  APART FROM THE LINEUPS, PETITIONER WAS
ALSO QUESTIONED INTERMITTENTLY DURING THIS PERIOD.  AT ABOUT 5:50 A.M.,
AUGUST 2, PETITIONER BEGAN TO GIVE THE INCULPATORY STATEMENTS, IN
RESPONSE TO POLICE QUESTIONS, THAT WERE INTRODUCED AGAINST HIM.  IT IS
CLEAR THE THE INTERROGATION OF PETITIONER WAS CARRIED ON FOR THE SOLE
PURPOSE OF ELICITING INCRIMINATING STATEMENTS FROM HIM, SINCE HE HAD
ALREADY BEEN POSITIVELY IDENTIFIED NUMEROUS TIMES, WHILE IN LINEUPS, AS
THE KILLER. 

PETITIONER HAS A SIXTH-GRADE EDUCATION AND AN I.Q. OF 86.  DURING
THE PERIOD OF OVER EIGHT HOURS IN WHICH HE WAS IN POLICE CUSTODY PRIOR
TO CONFESSING, HE WAS AT NO TIME ADVISED OF HIS RIGHT TO REMAIN SILENT
OR HIS RIGHT TO CONSULT WITH AN ATTORNEY, AND THE TRIAL JUDGE FOUND AS
A FACT THAT PETITIONER WAS NOT AWARE OF HIS RIGHTS AT THE TIME HE
CONFESSED.  AT THE TIME OF HIS ARREST PETITIONER WAS BLEEDING FROM A
CUT AN INCH OR AN INCH AND ONE-HALF LONG ON THE SIDE OF HIS HEAD. 
DURING THE VARIOUS LINEUPS TO WHICH HE WAS SUBJECTED, PETITIONER
CONSTANTLY HAD BLOOD VISIBLE ON HIS FACE OR HEAD.  TWO DOCTORS LATER
EXAMINED PETITIONER, ONE ON AUGUST 10, AND THE OTHER ON AUGUST 14. 
THEY REPORTED THE FOLLOWING:  "HE (PETITIONER) HAS HEADACHES AND
DIZZINESS WHEN HE BENDS DOWN AND GETS UP.  HE HAD A BLACKOUT SPELL IN
THE POLICE STATION.  THINGS APPEAR BLURRY TO HIM.  HE HAS VOMITED A
COUPLE OF TIMES."  TWO WEEKS AFTER HIS ARREST AND CONFESSION,
PETITIONER UNDERWENT A BRAIN OPERATION FOR A SUBDURAL HEMATOMA; THE
SURGEON WHO OPERATED ON HIM TESTIFIED THAT THE HEMATOMA "COULD HAVE
BEEN THERE ANYWHERE FROM ONE TO TWO WEEKS." 

ON THESE FACTS THE TRIAL COURT FOUND PETITIONER'S CONFESSION
VOLUNTARY, THAT IS THE RESULT OF HIS "FREE CHOICE TO ADMIT, TO DENY, OR
TO REFUSE TO ANSWER."  LISENBA V. CALIFORNIA, 314 U.S. 219, 241
(1941).  WHILE IT IS TRUE THAT SOME OF THIS COURT'S EARLIER DECISIONS
IN VOLUNTARINESS CASES (RELIED ON BY THE STATE HERE) ARE NOT
INCONSISTENT WITH SUCH A HOLDING, E.G., LISENBA V. CALIFORNIA, SUPRA;
GALLEGOS V. NEBRASKA, 342 U.S. 55 (1951); STEIN V. NEW YORK, 346 U.S.
156 (1953), I HAD THOUGHT THAT MORE RECENT DECISIONS OF THIS COURT
WOULD HAVE MADE IT ABUNDANTLY CLEAR THAT A CONFESSION OBTAINED UNDER
THE CIRCUMSTANCES PRESENT HERE WOULD BE INVOLUNTARY AND
CONSTITUTIONALLY INADMISSIBLE AGAINST ITS MAKER.  SEE, E.G., CULOMBE V.
CONNECTICUT, 367 U.S. 568 (1961); HAYNES V. WASHINGTON, 373 U.S. 503
(1963); DAVIS V. NORTH CAROLINA, 384 U.S. 737 (1966); CLEWIS V. TEXAS,
386 U.S. 707 (1967). 

THE COURT SAYS THAT IT FINDS THE RECORD IN THIS CAPITAL CASE TOO
"INSUFFICIENT" TO PERMIT A RESOLUTION OF PETITIONER'S CONSTITUTIONAL
CLAIM.  I AM UNABLE TO AGREE, SINCE THE EVIDENCE ON THE QUESTION OF
VOLUNTARINESS IS LARGELY UNDISPUTED.  I AM PARTICULARLY UNABLE TO
UNDERSTAND THE COURT'S DISPOSITION OF THIS CASE, AFTER FULL ORAL
ARGUMENT, IN LIGHT OF ITS DISPOSITION OF GREENWALD V. WISCONSIN, POST,
P. 519, IN WHICH IT FINDS A CONFESSION INVOLUNTARY AND REVERSES,
WITHOUT ARGUMENT, ON FACTS WHICH ARE, IF ANYTHING, LESS COMPELLING ON
THE ISSUE OF INVOLUNTARINESS THAN THE FACTS IN THE PRESENT CASE. 

TO BE SURE, PETITIONER CHALLENGED THE VOLUNTARINESS OF HIS
CONFESSION AT TRIAL ONLY ON THE THEORY, WHICH WAS REJECTED, THAT HE HAD
BEEN SUBJECTED TO PHYSICAL ABUSE BY THE POLICE.  HOWEVER, IN THE COURSE
OF THE HEARING ON THAT CHALLENGE THE CIRCUMSTANCES AS OUTLINED ABOVE
EMERGED FROM THE TESTIMONY OF THE POLICE AND WERE SPECIFICALLY FOUND AS
FACTS BY THE TRIAL JUDGE.  YET, ONCE HE CONCLUDED THERE HAD BEEN NO
PHYSICAL ABUSE, THE TRIAL JUDGE DID NOT GO ON TO CONSIDER THE
VOLUNTARINESS OF PETITIONER'S CONFESSION IN LIGHT OF "THE TOTALITY OF
THE CIRCUMSTANCES," GREENWALD V. WISCONSIN, SUPRA, AT 521, UNDER WHICH
IT WAS OBTAINED.  WHILE THE SUPREME JUDICIAL COURT STATED THAT
PETITIONER SHOULD HAVE RAISED AT TRIAL THE THEORY OF INVOLUNTARINESS OF
WHICH HE NOW RELIES, ITS OPINION REVEALS THAT IT THEN WENT ON THE PASS
ON THAT EVIDENCE ITSELF, IN THE COURSE OF RULING ON PETITIONER'S
REQUEST FOR A NEW TRIAL, AND FOUND THE CONFESSION VOLUNTARY. 
ACCORDINGLY, I DO NOT FEEL THAT IT IS NECESSARY FOR US TO DECIDE
WHETHER THE TRIAL JUDGE WAS UNDER A DUTY SUA SPONTE TO CONSIDER A
THEORY OF INVOLUNTARINESS NOT INITIALLY RAISED BY PETITIONER, SINCE IT
APPEARS THAT SUCH FACTS WERE CONSIDERED AND PASSED ON IN THE COURSE OF
APPELLATE REVIEW IN THE STATE COURT. 

I RESPECTFULLY DISSENT. 

JOHN M. HARRINGTON, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM
ON THE BRIEFS WAS JOHN A. PIKE. 

BRIAN E. CONCANNON, SPECIAL ASSISTANT ATTORNEY GENERAL OF
MASSACHUSETTS, ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WERE ELLIOT L. RICHARDSON, ATTORNEY GENERAL, JOHN M. FINN, DEPUTY
ASSISTANT ATTORNEY GENERAL, AND HOWARD M. MILLER, ASSISTANT ATTORNEY
GENERAL. 
..END :






HOGUE V. SOUTHERN R. CO., 390 U.S. 516 


       HOGUE V. SOUTHERN RAILWAY CO.

        CERTIORARI TO THE COURT OF APPEALS OF GEORGIA. 

        NO. 889.  DECIDED APRIL 1, 1968. 


PLAINTIFF UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT WHO ATTACKS A
PREVIOUSLY EXECUTED RELEASE ON GROUNDS OF MUTUAL MISTAKE OF FACT IS NOT
REQUIRED TO TENDER BACK TO HIS EMPLOYER THE CONSIDERATION RECEIVED FOR
THE RELEASE IN ORDER TO MAINTAIN THE ACTION.  EXCEPT AS THE RELEASE MAY
OTHERWISE BAR RECOVERY, THE SUM PAID SHALL BE DEDUCTED FROM ANY AWARD
DETERMINED TO BE DUE THE INJURED EMPLOYEE. 

116 GA.APP.  194, 158 S.E.2D 412, REVERSED AND REMANDED. 

PER CURIAM. 

WE GRANTED THE PETITION FOR CERTIORARI IN THIS CASE OVER THE
OPPOSITION OF THE RESPONDENT CARRIER.  POST, P. 903.  THE WRIT PRESENTS
FOR REVIEW A JUDGMENT IN FAVOR OF THE RESPONDENT CARRIER ENTERED BY THE
GEORGIA COURT OF APPEALS UPON A HOLDING THAT A PLAINTIFF UNDER THE
FEDEARAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS AMENDED, 45 U.S.C.
51 ET SEQ., WHO ATTACKS A PREVIOUSLY EXECUTED RELEASE ON GROUNDS OF
MUTUAL MISTAKE OF FACT, MUST, AS A CONDITION TO BRINGING HIS SUIT,
TENDER BACK TO HIS CARRIER EMPLOYER THE CONSIDERATION HE RECEIVED FOR
THE RELEASE.  116 GA.APP.  194, 156 S.E.2D 412, CERTIORARI DENIED BY
THE SUPREME COURT OF GEORGIA.  RESPONDENT CARRIER HAS NOW FILED BEFORE
ARGUMENT A "MEMORANDUM CONFESSION ERROR" WHICH STATES "THAT ITS
INSISTENCE BEFORE THE GEORGIA COURTS THAT THE APPLICABLE LAW REQUIRED A
TENDER, AND THE DECISION OF THE GEORGIA COURT OF APPEALS REQUIRING A
TENDER WERE ERRONEOUS.  ACCORDINGLY, RESPONDENT DOES NOT DESIRE TO
OFFER BRIEF OR ARGUMENT AGAINST PETITIONER ON THIS ISSUE, AND CONFESSES
ERROR." 

PETITIONER HAD SUFFERED AN INJURY TO A KNEE WHILE WORKING IN
RESPONDENT CARRIER'S SHOPS.  HE EXECUTED A RELEASE FOR A CONSIDERATION
OF $105, AND DID NOT OFFER TO RETURN THE CONSIDERATION BEFORE
INSTITUTING THIS ACTION.  HE PLEADED THAT THE RELEASE WAS OBTAINED BY
REASON OF A MISTAKE OF FACT OF BOTH PARTIES AS TO THE EXTENT OF HIS
INJURIES, ALLEGING SPECIFICALLY THAT HE AND THE CARRIER HAD RELIED ON
THE ASSURANCES OF THE CARRIER'S DOCTOR THAT HE HAD ONLY A BRUISED KNEE
AND WAS NOT PERMANENTLY INJURED, WHEREAS LATER IT WAS DETERMINED THAT
HIS INJURY WAS PERMANENT AND RESULTED IN HIS HAVING TWO OPERATIONS, ONE
OF WHICH CAUSED HIM TO LOSE A KNEECAP. 

THE QUESTION WHETHER A TENDER BACK OF THE CONSIDERATION WAS A
PREREQUISITE TO THE BRINGING OF THE SUIT IS TO BE DETERMINED BY FEDERAL
RATHER THAN STATE LAW.  DICE V. AKRON, C. & Y.R. CO., 342 U.S. 359,
361.  WE REJECT THE SUGGESTION THAT A TENDER BACK OF THE CONSIDERATION
IS EXCUSED ONLY WHERE FRAUD ENTERS INTO THE EXECUTION OF THE RELEASE. 
SEE, E.G., GRAHAM V. ATCHISON, T. & S.F.R. CO., 176 F.2D 819, 826.  WE
HOLD THAT A TENDER BACK IS ALSO NOT REQUISITE WHEN IT IS PLEADED THAT
THE CARRIER AND THE EMPLOYEE ENTERED INTO THE RELEASE FROM MUTUAL
MISTAKE AS TO THE NATURE AND EXTENT OF THE EMPLOYEE'S INJURIES.  WE
HAVE HELD THAT AN EXPRESS AGREEMENT OF AN INJURED EMPLOYEE WHO OBTAINED
FUNDS FROM A CARRIER TO HELP DEFRAY LIVING EXPENSES FIRST TO RETURN THE
SUM PAID AS A PREREQUISITE TO THE FILING AND MAINTENANCE OF AN ACTION
UNDER THE FELA WAS VOID UNDER SEC. 5 OF THE ACT.  /1/  DUNCAN V.
THOMPSON, TRUSTEE, 315 U.S. 1.  THERE IS NO OCCASION TO DECIDE WHETHER
THE RELEASE HERE INVOLVED VIOLATED SEC. 5.  IT IS SUFFICIENT FOR THE
PURPOSES OF THIS DECISION TO NOTE THAT A RULE WHICH REQUIRED A REFUND
AS A PREREQUISITE TO INSTITUTION OF SUIT WOULD BE "WHOLLY INCONGRUOUS
WITH THE GENERAL POLICY OF THE ACT TO GIVE RAILROAD EMPLOYEES A RIGHT
TO RECOVER JUST COMPENSATION FOR INJURIES NEGLIGENTLY INFLICTED BY
THEIR EMPLOYERS."  DICE V. AKRON, C. & Y.R. CO., SUPRA, AT 362.  RATHER
IT IS MORE CONSISTENT WITH THE OBJECTIVES OF THE ACT TO HOLD, AS WE DO,
THAT IT SUFFICES THAT, EXCEPT AS THE RELEASE MAY OTHERWISE BAR
RECOVERY, THE SUM PAID SHALL BE DEDUCTED FROM ANY AWARD DETERMINED TO
BE DUE TO THE INJURED EMPLOYEE.  CF. CALLEN V. PENNSYLVANIA R. CO., 332
U.S. 625. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

 IT IS SO ORDERED. 

/1/  SECTION 5, AS SET FORTH IN 45 U.S.C. 55, IS AS FOLLOWS: 

"ANY CONTRACT, RULE, REGULATION, OR DEVICE WHATSOEVER, THE PURPOSE
OR INTENT OF WHICH SHALL BE TO ENABLE ANY COMMON CARRIER TO EXEMPT
ITSELF FROM ANY LIABILITY CREATED BY THIS CHAPTER, SHALL TO THAT EXTENT
BE VOID:  PROVIDED, THAT IN ANY ACTION BROUGHT AGAINST ANY SUCH COMMON
CARRIER UNDER OR BY VIRTUE OF ANY OF THE PROVISIONS OF THIS CHAPTER,
SUCH COMMON CARRIER MAY SET OFF THEREIN ANY SUM IT HAS CONTRIBUTED OR
PAID TO ANY INSURANCE, RELIEF BENEFIT, OR INDEMNITY THAT MAY HAVE BEEN
PAID TO THE INJURED EMPLOYEE OR THE PERSON ENTITLED THERETO ON ACCOUNT
OF THE INJURY OR DEATH FOR WHICH SAID ACTION WAS BROUGHT." 

MR. JUSTICE HARLAN, UPON CONSIDERATION OF THE CONFESSION OF ERROR
FILED HERE BY THE RESPONDENT AND IN LIGHT OF THE RECORD, WOULD VACATE
THE JUDGMENT OF THE COURT OF APPEALS OF THE STATE OF GEORGIA AND REMAND
THE CASE FOR FURTHER APPROPRIATE PROCEEDINGS. 

SAMUEL D. HEWLETT, JR., FOR PETITIONER. 

CHARLES A. HORSKY FOR RESPONDENT. 
..END :



















GREENWALD V. WISCONSIN, 390 U.S. 519 


       GREENWALD V. WISCONSIN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           WISCONSIN. 

        NO. 417, MISC.  DECIDED APRIL 1, 1968. 


ON THE "TOTALITY OF THE CIRCUMSTANCES" SURROUNDING PETITIONER'S
INCULPATORY STATEMENTS ADMITTED INTO EVIDENCE AT THE TRIAL WHICH
RESULTED IN HIS CONVICTIONS (LACK OF:  COUNSEL (DESPITE PETITIONER'S
REMARK THAT HE WAS "ENTITLED" TO COUNSEL), FOOD, SLEEP, MEDICATION, AND
ADEQUATE WARNINGS AS TO CONSTITUTIONAL RIGHTS), HELD SUCH STATEMENTS
WERE NOT VOLUNTARY. 

CERTIORARI GRANTED; 35 WIS.2D 146, 150 N.W.2D 507, REVERSED. 

PER CURIAM. 

PETITIONER WAS CHARGED WITH TWO BURGLARIES AND ONE ATTEMPTED
BURGLARY.  HE ENTERED PLEAS OF NOT GUILTY TO EACH COUNT.  BEFORE TRIAL,
PETITIONER REQUESTED A HEARING ON THE VOLUNTARINESS OF CERTAIN ORAL
ADMISSIONS AND A WRITTEN CONFESSION HE HAD GIVEN WHILE IN POLICE
CUSTODY.  THE HEARING WAS HELD AND THE TRIAL COURT FOUND THAT THE
STATEMENTS HAD BEEN VOLUNTARILY MADE.  PETITIONER WAIVED JURY TRIAL. 
THE STATEMENTS WERE ADMITTED IN EVIDENCE AND HE WAS CONVICTED ON ALL
THREE COUNTS.  ON EACH OF THEM HE WAS SENTENCED TO AN INDETERMINATE
TERM OF NOT MORE THAN FIVE YEARS, WITH THE SENTENCES TO RUN
CONCURRENTLY.  THE WISCONSIN SUPREME COURT, ON APPEAL, AFFIRMED THE
CONVICTIONS.  IT AGREED WITH THE TRIAL COURT THAT THE STATEMENTS IN
QUESTION WERE VOLUNTARY.  PETITIONER SOUGHT A WRIT OF CERTIORARI.  WE
GRANT THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, GRANT THE
WRIT, AND REVERSED THE JUDGMENT BELOW. 

PETITIONER, WHO HAS A NINTH-GRADE EDUCATION, WAS ARRESTED ON
SUSPICION OF BURGLARY SHORTLY BEFORE 10:45 ON THE EVENING OF JANUARY
20, 1965.  HE WAS TAKEN TO A POLICE STATION.  HE WAS SUFFERING FROM
HIGH BLOOD PRESSURE, A CONDITION FOR WHICH HE WAS TAKING MEDICATION
TWICE A DAY.  PETITIONER HAD LAST TAKEN FOOD AND MEDICATION, BEFORE HIS
ARREST, AT 4 P.M.  HE DID NOT HAVE MEDICATION WITH HIM AT THE TIME OF
THE ARREST.  AT THE POLICE STATION, PETITIONER WAS INTERROGATED FROM
10:45 UNTIL MIDNIGHT.  HE WAS NOT ADVISED OF HIS CONSTITUTIONAL
RIGHTS.  PETITIONER REPEATEDLY DENIED GUILT.  NO INCRIMINATING
STATEMENTS WERE MADE AT THIS TIME. 

PETITIONER WAS BOOKED AND FINGERPRINTED AND SOMETIME AFTER 2 A.M.,
HE WAS TAKEN TO A CELL IN THE CITY JAIL.  A PLANK FASTENED TO THE WALL
SERVED AS HIS BED.  PETITIONER CLAIMS HE DID NOT SLEEP.  AT 6 A.M.,
PETITIONER WAS LED FROM THE CELL TO A "BULLPEN."  AT 8:30 HE WAS PLACED
IN A LINEUP.  AT 8:45, HIS INTERROGATION RECOMMENCED.  IT WAS CONDUCTED
BY SEVERAL OFFICERS AT A TIME, IN A SMALL ROOM.  PETITIONER TESTIFIED
THAT IN THE COURSE OF THE MORNING HE WAS NOT OFFERED FOOD AND THAT HE
CONTINUED TO BE WITHOUT MEDICATION.  FOR AN HOUR OR TWO HE REFUSED TO
ANSWER ANY QUESTIONS.  WHEN HE DID SPEAK, IT WAS TO DENY, ONCE AGAIN,
HIS GUILT. 

SOMETIME AFTER 10 A.M., PETITIONER WAS ASKED TO WRITE OUT A
CONFESSION.  HE REFUSED, STATING THAT "IT WAS AGAINST MY CONSTITUTIONAL
RIGHTS" AND THAT HE WAS "ENTITLED TO HAVE A LAWYER."  THESE STATEMENTS
WERE IGNORED.  NO FURTHER REFERENCE WAS MADE TO AN ATTORNEY, BY
PETITIONER OR BY THE POLICE OFFICERS. 

AT ABOUT 11 A.M. PETITIONER BEGAN A SERIES OF ORAL ADMISSIONS
CULMINATING IN A FULL ORAL CONFESSION AT ABOUT 11:30.  AT NOON HE WAS
OFFERED FOOD.  THE CONFESSION WAS REDUCED TO WRITING AROUND 1 P.M.
JUST BEFORE THE CONFESSION WAS REDUCED TO WRITING, PETITIONER WAS
ADVISED OF HIS CONSTITUTIONAL RIGHTS.  ACCORDING TO HIS TESTIMONY, HE
CONFESSED BECAUSE "I KNEW THEY WEREN'T GOING TO LEAVE ME ALONE UNTIL I
DID." 

IT IS OUR DUTY, IN A CASE SUCH AS THIS, TO MAKE AN EXAMINATION OF
THE RECORD IN ORDER TO ASCERTAIN WHETHER PETITIONER'S STATEMENTS WERE
VOLUNTARY.  /1/  SEE DAVIS V. NORTH CAROLINA, 384 U.S. 737, 741-742
(1966).  WE BELIEVE THAT, CONSIDERING THE "TOTALITY OF THE
CIRCUMSTANCES" SURROUNDING THE STATEMENTS, SEE CLEWIS V. TEXAS, 386
U.S. 707 (1967), IT WAS ERROR FOR THE SUPREME COURT OF WISCONSIN TO
CONCLUDE THAT THEY WERE VOLUNTARILY MADE.  WE REACH THIS DECISION AS IN
CLEWIS, WITHOUT REFERENCE TO DISPUTED TESTIMONY TAKEN AT THE PRETRIAL
HEARING. 

ALL OF THE ABOVE RECITED FACTS ARE, UNDER OUR DECISIONS, RELEVANT TO
THE CLAIM THAT THE STATEMENTS WERE INVOLUNTARY:  THE LACK OF COUNSEL,
ESPECIALLY IN VIEW OF THE ACCUSED'S STATEMENT THAT HE DESIRES COUNSEL
(SEE JOHNSON V. NEW JERSEY, 384 U.S. 719, 730, 735 (1966); CF. ESCOBEDO
V. ILLINOIS, 378 U.S. 478 (1964); THE LACK OF FOOD, SLEEP, AND
MEDICATION (SEE CLEWIS V. TEXAS, 386 U.S. 707 (1967)); THE LACK OF
INADEQUACY OF WARNINGS AS TO CONSTITUTIONAL RIGHTS (SEE CULOMBE V.
CONNECTICUT, 367 U.S. 568, 630 (1961); JOHNSON V. NEW JERSEY, 384 U.S.
719, 730 (1966)).  CONSIDERING THE TOTALITY OF THESE CIRCUMSTANCES, WE
DO NOT THINK IT CREDIBLE THAT PETITIONER'S STATEMENTS WERE THE PRODUCT
OF HIS FREE AND RATIONAL CHOICE. 

ACCORDINGLY, THE JUDGMENT BELOW IS REVERSED. 

/1/  PETITIONER'S TRIAL BEGAN BEFORE THE DATE OF OUR DECISION IN
MIRANDA V. ARIZONA, 384 U.S. 436 (1966).  ALTHOUGH PETITIONER'S TRIAL
WAS AFTER THE DATE OF OUR DECISION IN ESCOBEDO V. ILLINOIS, 378 U.S.
478 (1964), WE NEED NOT AND DO NOT DECIDE WHETHER THAT DECISION WOULD,
IN ITSELF, REQUIRE REVERSAL OF PETITIONER'S CONVICTIONS.  SEE JOHNSON
V. NEW JERSEY, 384 U.S. 719 (1966). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

I CANNOT AGREE THAT THE PETITIONER'S CONFESSION WAS INVOLUNTARY AS A
MATTER OF LAW.  WHEN HE WAS TAKEN TO THE POLICE STATION FOR QUESTIONING
HE WAS NEARLY 30 YEARS OLD AND WAS BY NO MEANS A STRANGER TO THE
CRIMINAL LAW.  HE WAS QUESTIONED FOR LITTLE MORE THAN AN HOUR ONE
EVENING AND FOR LESS THAN FOUR HOURS THE NEXT MORNING.  HE WAS NEITHER
ABUSED NOR THREATENED AND WAS PROMISED NO BENEFIT FOR CONFESSING.  THE
COURT SAYS THAT THE OFFICERS DID NOT TELL HIM ABOUT HIS "CONSTITUTIONAL
RIGHTS."  BUT WHAT THE COURT FAILS TO MENTION IS THAT THE PETITIONER
HIMSELF TESTIFIED THAT, DURING HIS INTERROGATION, "HE KNEW HE HAD A
CONSTITUTIONAL RIGHT TO REFUSE TO ANSWER ANY QUESTIONS, . . . HE KNEW
ANYTHING HE SAID COULD BE USED AGAINST HIM, AND . . . HE KNEW HE HAD A
CONSTITUTIONAL RIGHT TO RETAIN COUNSEL."  35 WIS.2D 146, 151, 150
N.W.2D 507, 509.  MOREOVER, ALTHOUGH THE COURT'S OPINION MIGHT CONVEY A
CONTRARY IMPRESSION, THE PETITIONER HIMSELF TESTIFIED THAT AT NO TIME
BETWEEN HIS ARREST AND HIS CONFESSION DID HE EXPRESS TO ANYONE A DESIRE
FOR FOOD OR FOR MEDICATION. 

THE JUDGE WHO CONDUCTED THE PRETRIAL HEARING HELD THAT THE STATE HAD
THE BURDEN OF PROVING "BEYOND A REASONABLE DOUBT" THAT THE PETITIONER'S
DECISION TO CONFESS WAS THE PRODUCT OF HIW OWN UNFETTERED WILL. 
APPLYING THIS STANDARD, THE JUDGE FOUND THAT THE "TOTALITY OF THE
CIRCUMSTANCES" CONFRONTING THE PETITIONER WAS NOT "COERCIVE IN ANY
PHYSICAL OR PSYCHOLOGICAL RESPECT" AND THAT HE HAD MADE A "FREE AND
DELIBERATE CHOICE TO ADMIT HIS GUILT."  THESE FINDINGS WERE REVIEWED
AND AFFIRMED BY THE SUPREME COURT OF WISCONSIN IN A CONSCIENTIOUS AND
THOROUGH OPINION.  35 WIS.2D 146, 150 N.W.2D 507. 

GIVEN THE EVIDENCE ON WHICH THE CONCLUSIONS OF THE STATE COURTS WERE
BASED, IT IS NOT SURPRISING THAT THE PETITIONER HAS COMPLETELY
ABANDONED ANY CLAIM THAT HIS CONFESSION WAS COERCED.  THAT CLAIM IS
ADVANCED HERE NOT BE THE PETITIONER BUT BY THIS COURT, WHICH HAS NOT
ONLY RAISED THE ISSUE ON ITS OWN MOTION BUT DECIDED IT IN THE
PETITIONER'S FAVOR, WITHOUT GIVING WISCONSIN ANY OPPORTUNITY TO BRIEF
OR ARGUE THE QUESTION ON THE MERITS.  /1/ 

/1/  THE PETITIONER DOES NOT RAISE, AND THE COURT DOES NOT REACH THE
QUESTION WHETHER HIS CONFESSION WAS INADMISSIBLE UNDER ESCOBEDO V.
ILLINOIS, 378 U.S. 478. 

BRONSON C. LAFOLLETTE, ATTORNEY GENERAL OF WISCONSIN, FOR
RESPONDENT. 
..END :














ANDERSON V. NELSON, 390 U.S. 523 


       ANDERSON V. NELSON, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 652, MISC.  DECIDED APRIL 1, 1968. 


COMMENT ON PETITIONER'S FAILURE TO TESTIFY CANNOT BE LABELED HARMLESS
ERROR WHERE SUCH COMMENT IS EXTENSIVE, WHERE AN INFERENCE OF GUILT FROM
SILENCE IS STRESSED TO THE JURY AS A BASIS FOR CONVICTION, AND WHERE
THERE IS EVIDENCE THAT COULD HAVE SUPPORTED ACQUITTAL. 

CERTIORARI GRANTED; 379 F.2D 330, REVERSED. 

PER CURIAM. 

PETITIONER ANDERSON WAS CONVICTED AFTER JURY TRIAL IN CALIFORNIA
COURTS OF FORGERY AND THE STATE DISTRICT COURT OF APPEAL AFFIRMED,
FINDING ALL ERRORS NONPREJUDICIAL UNDER THE STATE'S HARMLESS ERROR
RULE.  AFTER THE CALIFORNIA SUPREME COURT RETURNED TO PETITIONER
UNFILED HIS PETITION FOR HEARING IN THAT COURT, WITH THE NOTATION THAT
IT WAS NOT TIMELY, PETITIONER SOUGHT HABEAS CORPUS RELIEF IN FEDERAL
DISTRICT COURT.  THE DISTRICT COURT ISSUED THE WRIT, HOLDING THAT THE
PROSECUTOR'S COMMENT ON THE FAILURE OF PETITIONER TO TESTIFY AT HIS
TRIAL, MADE IN VIOLATION OF GRIFFIN V. CALIFORNIA, 380 U.S. 609, WAS
NOT HARMLESS ERROR.  THE STATE APPEALED.  ONE WEEK AFTER ORAL ARGUMENT,
OUR DECISION IN CHAPMAN V. CALIFORNIA, 386 U.S. 18, WAS HANDED DOWN. 
APPLYING THE CHAPMAN STANDARD, THE MAJORITY OF THE COURT OF APPEALS
CONCLUDED THAT THE GRIFFIN ERROR WAS HARMLESS "BEYOND A REASONABLE
DOUBT."  WILSON V. ANDERSON, 379 F.2D 330, 335.  JUDGE ELY DISSENTED. 

WE AGREE WITH JUDGE ELY THAT COMMENT ON A DEFENDANT'S FAILURE TO
TESTIFY CANNOT BE LABELED HARMLESS ERROR IN A CASE WHERE SUCH COMMENT
IS EXTENSIVE, WHERE AN INFERENCE OF GUILT FROM SILENCE IS STRESSED TO
THE JURY AS A BASIS OF CONVICTION, AND WHERE THERE IS EVIDENCE THAT
COULD HAVE SUPPORTED ACQUITTAL.  WE FIND THIS IS SUCH A CASE. 

THE BOOKKEEPER FOR A TRUCKING FIRM HAD WRITTEN A $196 PAYROLL CHECK TO
EMPLOYEE MICHAEL PITTMAN AND HAD PLACED IT IN THE FIRM'S OFFICE.  THE
CHECK DISAPPEARED AT A TIME EITHER SHORTLY BEFORE OR AFTER PETITIONER
WAS IN THE FIRM'S OFFICE ASKING FOR A JOB.  TWO DAYS LATER PETITIONER
HAD POSSESSION OF THE CHECK AND ASKED GASOLINE STATION OPERATOR KERNEN
TO CASH IT FOR HIM.  ACCORDING TO KERNEN, PETITIONER TOLD HIM HE HAD
BEEN WORKING FOR THE TRUCKING FIRM AND IT WAS HIS PAYROLL CHECK. 
KERNEN WAS ACQUAINTED WITH PETITIONER, KNEW HIM AS WILLY, AND KNEW HE
WAS THE BROTHER OF JIM ANDERSON, WHO HAD A CHARGE ACCOUNT WITH KERNEN. 
KERNEN TOLD PETITIONER HE DID NOT HAVE ENOUGH MONEY ON HAND TO CASH THE
$196 CHECK, BUT THEY AGREED TO APPLY $112 TO JIM ANDERSON'S ACCOUNT,
WITH PETITION PETITIONER TAKING $84.  ACCORDING TO KERNEN'S TESTIMONY,
PETITIONER THAN BORROWED A PEN FROM HIM AND ENDORSED THE NAME MICHAEL
PITTMAN ON THE CHECK.  WHEN THE CHECK WAS RETURNED TO KERNEN BY THE
BANK, HE MET WITH POLICE AND IDENTIFIED PETITIONER FROM A POLICE "MUG
SHOT." 

THE ARRESTING OFFICER TESTIFIED THAT HE ASKED PETITIONER ABOUT THE
INCIDENT AND THAT PETITIONER ADMITTED CASHING THE CHECK BUT DENIED HE
ENDORSED IT.  PETITIONER TOLD THE OFFICER HE WAS IN A BAR WHEN AN
UNKNOWN PERSON CAME UP TO HIM AND SAID HE WANTED TO CASH A CHECK. 
PETITIONER TOOK IT TO THE SERVICE STATION AND SUBSTITUTED $112 HE HAD
ON HIS PERSON FOR THE AMOUNT WITHHELD BY KERNEN. 

PETITIONER DID NOT TESTIFY AND PRESENTED NO EVIDENCE.  THE TRIAL
COURT INSTRUCTED THE JURY ON INFERENCES TO BE DRAWN FROM PETITIONER'S
SILENCE AS FOLLOWS: 

     "AS TO ANY EVIDENCE OR FACTS AGAINST HIM WHICH THE DEFENDANT

  CAN REASONABLY BE EXPECTED TO DENY OR EXPLAIN BECAUSE OF FACTS

  WITHIN HIS KNOWLEDGE, IF HE DOES NOT TESTIFY . . . THE JURY MAY

TAKE THAT FAILURE INTO CONSIDERATION AS TENDING TO INDICATE THE

  TRUTH OF SUCH EVIDENCE AND AS INDICATING THAT AMONG THE

  INFERENCES THAT MAY BE REASONABLY DRAWN THEREFROM, THOSE

  UNFAVORABLE TO THE DEFENDANT ARE THE MORE PROBABLE." 

IT IS CONCEDED THAT THOSE INSTRUCTIONS VIOLATED GRIFFIN.  IT IS ALSO
CONCEDED THAT THE PROSECUTOR'S COMMENTS /1/  VIOLATED GRIFFIN. 

WHILE THE EVIDENCE AGAINST PETITIONER WAS SUFFICIENT TO CONVICT, THE
FACTS THAT PETITIONER ALLEGEDLY FORGED THE NAME MICHAEL PITTMAN IN THE
PRESENCE OF AN ACQUAINTANCE OF PETITIONER'S WHO KNEW HIM AS WILLY, THE
BROTHER OF JIM ANDERSON, THAT PETITIONER ALLEGEDLY CHOSE TO CASH A
WORTHLESS CHECK AT A PLACE WEHRE HE WAS KNOWN AND OPENLY AGREED TO HAVE
THE MAJOR PORTION OF THE PROCEEDS APPLIED TO HIS BROTHER'S ACCOUNT AND
YET, AFTER ALL THIS, DID NOT FLEE THE COUNTY COULD BE VIEWED AS CASTING
DOUBT ON THE PROSECUTION'S CASE, PERHAPS ON KERNEN'S VERACITY.  IN THIS
POSTURE, WE CANNOT SAY THAT THE PROSECUTOR'S EXTENSIVE ARGUMENT ASKING
THE JURY TO OVERLOOK INFERENCES FAVORABLE TO PETITIONER BECAUSE HE
INVOKED HIS CONSTITUTIONAL RIGHT NOT TO TESTIFY WAS, IN THE WORDS OF
CHAPMAN, "HARMLESS BEYOND A REASONABLE DOUBT."  386 U.S.,AT 24.  SINCE
PETITIONER IS ENTITLED TO RELIEF FOR THIS REASON, WE DO NOT REACH THE
OTHER QUESTIONS HE SEEKS TO RAISE.  NOR ARE WE PERSUADED BY
RESPONDENT'S CONTENTION THAT PETITIONER'S LATE FILING OF A PETITION FOR
HEARING IN THE STATE SUPREME COURT CONSTITUTED A DELIBERATE BYPASS OF
STATE REMEDIES, PRECLUDING HIM FROM HABEAS CORPUS RELIEF IN FEDERAL
COURTS.  SEE FAY V. NOIA, 372 U.S. 391.  CF. HENRY V. MISSISSIPPI, 379
U.S. 443 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED AND THE JUDGMENT IS

              REVERSED. 

/1/ SEE THE APPENDIX TO THIS OPINION. 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT
OF THE COURT OF APPEALS. 

        APPENDIX TO PER CURIAM. 

THE PROSECUTOR STATED IN ARGUMENT: 

"NOW, ONE OTHER THING THE JUDGE WILL INSTRUCT YOU-- HE TOLD YOU-- HE
TOUCHED ON THIS WHEN WE WERE PICKING THE JURY:  THE DEFENDANT, AS MR.
ANDERSON HAS DONE, IN A CRIMINAL CASE, HE DOESN'T HAVE TO TAKE THE
STAND.  THAT'S HIS CHOICE.  HE CAN TAKE THE STAND IF HE CHOOSES.  HE
DOESN'T HAVE TO.  I CAN'T CALL HIM TO THE STAND; THE JUDGE CAN'T DEMAND
THAT HE GET ON THE STAND.  THAT'S COMPLETELY UP TO HIM.  HE IS NOT
REQUIRED TO, UNDER OUR LAW, TO TESTIFY. 

"THE JUDGE WILL ALSO INSTRUCT YOU THAT THE JURY MAY CONSIDER THAT,
BECAUSE OF HIS FAILURE TO TESTIFY, THAT IF HE HAD CERTAIN FACTS WHICH
WOULD BE EXPECTED TO BE WITHIN HIS KNOWLEDGE, THAT HE COULD EXPLAIN OR
DENY CERTAIN THINGS, THAT THE JURY MAY CONSIDER THIS.  IN OTHER WORDS,
BY THAT I MEAN SUCH AS IN THIS CASE, MR. ANDERSON COULD HAVE GOTTEN ON
THE STAND AND TOLD YOU, 'NO, I DIDN'T SIGN THAT,' OR, 'I WASN'T UP TO
THE CALVERTS (TRUCKING FIRM) AND SOMEBODY ELSE TOLD ME ABOUT IT, AS I
TOLD SERGEANT SONBERG (THE ARRESTING OFFICER).' 

"IN OTHER WORDS, YOU CAN CONSIDER THAT, WHEN A PERSON COULD BE
EXPECTED TO KNOW SOMETHING ABOUT SOMETHING, AND HE DOESN'T TELL YOU
WHAT OBVIOUSLY HE MUST KNOW, WHY, THEN YOU CAN DRAW CERTAIN INFERENCES
FROM THAT. 

"AND, AS I SAY, LADIES AND GENTLEMEN, THERE IS NO EVIDENCE ON BEHALF
- THAT THE DEFENDANT HAS PUT IN HERE. 

"SO, THE ONLY WAY WE CAN BE ATTACKED IS THAT WE HAVEN'T PROVEN CASE,
WE HVEN'T MADE OUT A CASE BECAUSE OF CERTAIN SUSPICIONS OR INFERENCES
OR SOMETHING LIKE THAT, SHOWING THERE WAS ANOTHER MAN, OR SOMETHING
LIKE THAT.  THAT HASN'T BEEN TESTIFIED TO HERE. 

"NOW, YOU CAN'T GUESS AS TO WHAT MR. ANDERSON WOULD OR WOULD NOT
HAVE TESTIFIED TO IF HE DID GET ON THE STAND, BECAUSE YOU HAVEN'T HEARD
IT.  YOU WILL HAVE TO BASE YOUR DECISION ON THOSE DOCUMENTS AND THE
PEOPLE YOU HAVE HEARD HERE.  IF YOU DON'T BELIEVE ANY OF THEM, YOU WILL
PROBABLY NOT FIND HIM GUILTY; BUT IF YOU DO BELIEVE THEM-- THERE HAS
BEEN NO CONTRADITION, NOBODY HAS CONTRADICTED THEM AT ALL-- THEN YOU
ARE ONLY LED TO ONE CONCLUSION, AND THAT SIMPLY IS THE FACT THAT THE
DEFENDANT IS THE ONE THAT PASSED THAT CHECK, AND IS GUILTY HERE. 

"REMEMBER, YOU HAVE NO CONFLICTING EVIDENCE ON THE OTHER SIDE.  YOU
EITHER WOULD HAVE TO DISBELIEVE THE CALVERTS, MICHAEL PITTMAN, AND MR.
KERNEN AND SERGEANT SONBERG AND THE REST OF THEM. 

"NO ONE CAME IN AND SAID, 'NO, THAT ISN'T IT; HE WAS SOMEWHERE
ELSE.'  YOU HEARD NOTHING LIKE THAT, LADIES AND GENTLEMEN. 

"THERE HASN'T BEEN ANY EVIDENCE THAT HAS BEEN PRODUCED TO CONTROVERT
IT.  NOBODY HAS COME IN HERE AND TOLD YOU MR. ANDERSON WAS SOMEWHERE
ELSE, OR HE DIDN'T DO IT, OR HE DIDN'T COME UP AND GET THAT CHECK, AND
'I DIDN'T KNOW ANYTHING ABOUT IT, AND I WENT IN THERE INNOCENTLY TO
PASS IT.'  HE DIDN'T TELL YOU THAT AT ALL. 

"I GIVE HIM CREDIT FOR NOT GETTING UP ON THE STAND AND TRYING TO
TELL YOU A LIE.  AT LEAST HE HAD THE ABILITY TO SIT THERE AND NOT SAY
ANYTHING, RATHER THAN TRY TO GET UP AND TELL YOU A WHOLE LOT OF
HOGWASH.  I'LL AT LEAST GIVE HIM THAT MUCH CREDIT. 

"THERE IS SOME DISPUTED EVIDENCE THAT MR. ANDERSON SHOWED UP WITH
THIS CHECK AND PASSED IT ON KERNEN ON THE 29TH. 

"NOW, IF HE GOT IT SOME INNOCENT WAY, IF SOMEBODY GAVE IT TO HIM,
THAT HE DIDN'T KNOW, THEN HE SHOULD HAVE GOTTEN UP ON THE STAND TO TELL
US ABOUT IT.  AND DON'T YOU THINK IF THAT IS WHAT HAPPENED, HE WOULD
HAVE?  I WOULD; YOU WOULD.  YOU WOULD BEAT A PATH TO THAT STAND, AT
LEAST TO GET UP THERE AND TELL THEM WHAT HAPPENED.  BUT THAT ISN'T THE
SITUATION HERE. 

"NOW, WE DON'T KNOW WHAT MR. ANDERSON'S STORY IS, BECAUSE YOU
HAVEN'T HEARD IT. 

"THAT'S WHAT HE TOLD SERGEANT SONBERG, THREE COMPLETELY PHONY,
DIFFERENT VERSIONS OF IT. 

"YOU DIDN'T SEE HIM GET UP, YOU DIDN'T HEAR THE WORDS FROM HIM,
BECAUSE HE DIDN'T GET UP ON THE STAND.  YOU DON'T KNOW WHAT HIS STORY
MAY BE TODAY.  HE MIGHT HAVE TOLD YOU ANOTHER STORY, THAT HE WAS FLYING
AROUND UP IN ALASKA, OR SOMETHING LIKE THAT.  I DON'T KNOW." 

CHARLES A. LEGGE FOR PETITIONER. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFO NIA, FOR RESPONDENT. 
..END :





VARNUM V. CALIFORNIA, 390 U.S. 529 


       VARNUM V. CALIFORNIA. 

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 869, MISC.  DECIDED APRIL 1, 1968. 


66 CAL.2D 808, 427 P.2D 772, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














ATLANTIC INSURANCE CO. V. STATE BOARD OF EQUALIZATION OF CALIFORNIA,
390 U.S. 529 



       ATLANTIC INSURANCE CO. ET AL. V. STATE BOARD OF EQUALIZATION

           OF CALIFORNIA. 

        APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FIRST

           APPELLATE DISTRICT. 

        NO. 1129.  DECIDED APRIL 1, 1968. 


255 CAL.APP.2D 1, 62 CAL.RPTR.  784, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

BERT W. LEVIT AND VICTOR B. LEVIT FOR APPELLANTS. 

THOMAS C. LYNCH, ATTORNEY GENERAL OF CALIFORNIA, AND HAROLD B. HAAS,
ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :























PROTECTIVE COMMITTEE V. ANDERSON, 390 U.S. 414 


       PROTECTIVE COMMITTEE FOR INDEPENDENT STOCKHOLDERS OF TMT

           TRAILER FERRY, INC. V. ANDERSON, TRUSTEE IN BANKRUPTCY,

           ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 38.  ARGUED NOVEMBER 7-8, 1967.-- DECIDED MARCH 25,

           1968. 


TMT TRAILER FERRY, INC. (TMT), THE DEBTOR IN THIS PROTRACTED
REORGANIZATION PROCEEDING, WAS INCORPORATED IN 1954, AND ENGAGES IN
TRANSPORTING LOADED TRUCK TRAILERS AND OTHER FREIGHT BETWEEN FLORIDA
AND PUERTO RICO ON SEA-GOING BARGES.  TMT INCURRED SUBSTANTIAL DEBTS
AND LOSSES FROM THE UNSUCCESSFUL CONVERSION OF A NAVY LSD BY A DRYDOCK
AND REPAIR COMPANY (M-S).  BETWEEN 1954 AND 1957 TMT ISSUED MORE THAN
4,000,000 SHARES OF COMMON STOCK, MANY OF WHICH WERE ACQUIRED BY
INSIDERS AT LOW PRICES AND DISPOSED OF TO THE PUBLIC IN ALLEGED
VIOLATION OF THE SECURITIES ACT OF 1933 AT RELATIVELY HIGH PRICES.  AS
A RESULT OF THESE AND OTHER TRANSACTIONS TMT BECAME UNABLE TO MEET ITS
OBLIGATIONS AND A REORGANIZATION PROCEEDING WAS STARTED BY AN
INVOLUNATRY PETITION FILED AGAINST TMT IN JUNE 1957.  IN 1959 THE
DISTRICT COURT, SOLELY ON THE BASIS OF DOCUMENTS AND RECORDS AND
WITHOUT A HEARING, DECLARED TMT INSOLVENT.  IT HELD THAT THE ORIGINAL
STOCKHOLDERS HAD NO FURTHER INTEREST IN THE REORGANIZED COMPANY, AND
CONFIRMED A REORGANIZATION PLAN WHICH WOULD HAVE GIVEN CONTROL OF TMT
TO HOLDERS OF PREFERRED SHIP MORTGAGES ON TMT'S VESSELS (THE "CAPLAN
MORTGAGE") EVEN THOUGH THE DISTRICT COURT HAD QUESTIONED, AND THE
TRUSTEE (RESPONDENT ANDERSON) HAD OBJECTED TO, THE VALIDITY OF THE
CLAIMS.  A SUCCESSOR TRUSTEE THEREAFTER PETITIONED IN EFFECT THAT THE
ORDER CONFIRMING THE PLAN BE VACATED OBECAUSE OF AN ALLEGEDLY ILLEGAL
AGREEMENT BETWEEN THE CAPLAN MORTGAGE HOLDERS AND M-S.  THE PETITIONER
COMMITTEE APPEALED, OBJECTING TO THE TRAIAL COURT'S FAILURE TO MAKE AN
INVESTIGATION AND TO CONDUCT A HEARING ON INSOLVENCY.  THE SEC THEN
PETITIONED THE TRIAL COURT TO INVESTIGATE ITS CLAIMS THAT THE PLAN WAS
UNFAIR.  THE PARTIES AGREED ON AN INVESTIGATION, WHICH RESPONDENT
ANDERSON AS REINSTATED TRUSTEE CONDUCTED.  ANDERSON'S INVESTIGATION
CONCLUDED THAT TMT'S BUSINESS HAD BEEN "WRECKED BY GROSS MISMANAGEMENT"
AND "UNSOUND EXPANSION," THAT TMT HAD SUBSTANTIAL CAUSES OF ACTION
AGAINST THE PRINCIPAL CAPLAN MORTGAGE HOLDERS FOR DIVERTING CORPORATE
OPPORTUNITIES THROUGH FLAGRANT ABUSE OF THEIR CONTROL AND INSIDE
POSITIONS, AND THAT, THE MORTGAGE WAS A "A FRAUDULENT TRANSFER NOT
GIVEN FOR FAIR CONSIDERATION."  THEREAFTER THE TRIAL COURT VACATED ITS
ORDER CONFIRMING THE 1959 PLAN AND THE COURT OF APPEALS AFFIRMED. 
AFTER THE TRIAL COURT SET ASIDE THE 1959 PLAN, NO HEARINGS WERE HELD ON
THE TRUSTEE'S AND THE SEC'S OBJECTIONS TO THE CAPLAN MORTGAGE CLAIM. 
THE MORTGAGE WAS NOT SET ASIDE AS A FRAUDULENT TRANSFER, NOR WAS IT
DECIDED TO USE THE CLAIMS AGAINST THE CAPLAN MORTGAGE HOLDERS AS
SETOFFS.  THE SEC, WHICH CONTENDED AFTER ITS OWN INVESTIGATION THAT
THERE WERE GROUNDS FOR DISALLOWING THE M-S CLAIMS, FILED DETAILED
SPECIFICATIONS OF ITS OBJECTIONS TO THOSE CLAIMS BASED UPON M-S'
ALLEGED NEGLIGENCE AND OTHER FACTORS.  THE SEC AND TRUSTEE SOUGHT
REFERENCE OF THE M-S CLAIMS TO A MASTER BUT LATER THE TRUSTEE MOVED FOR
THE ALLOWANCE OF THE CLAIMS ON THE GROUND THAT THERE WAS ONLY A
"REMOTE" POSSIBILITY OF MATERIALLY REDUCING THEM.  DESPITE HIS OWN
DOUBTS, AND WITHOUT FURTHER INVESTIGATION, THE TRIAL JUDGE ULTIMATELY
CONFIRMED THE M-S CLAIMS IN FULL AS UNSECURED CLAIMS.  IN 1962 TWO NEW
REORGANIZATION PLANS WERE PROPOSED:  THE "INTERNAL PLAN," RECOMMENDED
BY ANDERSON, INVOLVING ISSUANCE OF NEW COMMON STOCK TO CREDITORS AND
COMPROMISES" OF (1) THE CAPLAN MORTGAGE WHEREBY THE MORTGAGE HOLDERS
WERE TO RECEIVE IN CASH WHAT THEY HAD PUT UP FOR THE MORTGAGE, PLUS
INTEREST ON THE PRINCIPAL FROM THE ORIGINAL DUE DATE, AND (2) THE M-S
CLAIMS WHEREBY THEY WERE ALSO ALLOWED IN THEIR FULL AMOUNT AS UNSECURED
CLAIMS, UNDER AN ARRANGEMENT WHEREBY M-S WOULD RECEIVE 40% OF THE
REORGANIZED COMPANY'S COMMON STOCK; AND THE "CASH PLAN" INVOLVING
SIMILAR "COMPROMISES" AND SELLING THE DEBTOR'S ASSETS FOR CASH TO
PERSONS UNCONNECTED WITH THE COMPANY, THE CASH TO BE DISTRIBUTED TO
CREDITORS.  THE COMMITTEE AND THE SEC OBJECTED, INTER ALIA, THAT TMT'S
STOCKHOLDERS WERE EXCLUDED FROM BOTH PLANS.  FOLLOWING VALUATION
HEARINGS WHICH DID NOT INCLUDE FULL TESTIMONY ABOUT THE COMPANY'S
FUTURE PROSPECTS, THE DISTRICT COURT CONCLUDED THAT ITS GOING-CONCERN
VALUE, BASED ON CURRENT EARNINGS, WAS $2,780,000.  SINCE CREDITORS'
CLAIMS WERE ALMOST EXCLUDED TMT'S STOCKHOLDERS FROM PARTICIPATION IN
THE REORGANIZED COMPANY.  THE DISTRICTCOURT APPROVED BOTH PLANS,
OBSERVING IN CONNECTION WITH "COMPROMISING" THE CAPLAN MORTGAGE AND M-S
CLAIMS THAT SUCCESSFUL LITIGATION AGAINST THE CLAIMANTS "WOULD TAKE
POSSIBLY YEARS TO CONCLUDE" AND HOLDING THE COMPROMISES "FAIR AND
EQUITABLE" UNDER THE CIRCUMSTANCES.  A MAJORITY OF ALL CLASSES OF
CREDITORS ACCEPTED THE INTERNAL PLAN, WHICH THAT COURT CONFIRMED IN
FEBRUARY 1963.  THE COURT OF APPEALS REMANDED THE CASE TO THE DISTRICT
COURT TO DETERMINE THE FEASIBILITY OF THE PLAN IF THE GOVERNMENT'S
NONTAX CLAIMS WERE GIVENPRIORITY, WHICH IT HELD WAS REQUIRED.  THE
DISTRICT COURT, AFTER HEARINGS, APPROVED THE PLAN AS AMENDED TO INCLUDE
AN IMMEDIATE CASH PAYMENT TO THE GOVERNMENT AND ASSUMED THAT THE COURT
OF APPEALS HAD IN EFFECT AFFIRMED ITS OTHER ORDERS AND, REFUSING TO
RECONSIDER THE COMMITTEE'S AND SEC'S CONTENTIONS WITH REGARD TO THE
CAPLAN MORTGAGE AND M-S CLAIMS, AFFIRMED THE PLAN, WHICH THE CREDITORS
HAD ACCEPTED.  THE COMMITTEE AGAIN APPEALED.  THE COURT OF APPEALS
RULED THAT ITS EARLIER DECISION LEFT OPEN ALL ISSUED NOT PREVIOUSLY
DISCUSSED OR DECIDED BUT, FINDING NO ABUSE OF DISCRETION OR CLEAR
ERROR, REFUSED TO REMAND THE CASE AND AFFIRMED ALL JUDGMENTS AND ORDERS
OF THE DISTRICT COURT, STATING THAT "(THIS . . . LITIGATION MUST AT
LONG LAST BE BROUGHT TO AN END."  DEALING WITH THE DISTRICT COURT'S
APPROVAL OF THE COMPROMISES IN FIVE SENTENCES, THE COURT OF APPEALS
NOTED THAT "NOT A SINGLE CREDITOR HAS EVER COMPLAINED OF EITHER
COMPROMISE."  HELD: 

1.  THE COURT OF APPEALS ERRED IN AFFIRMING THE DISTRICT COURT'S
APPROVAL OF COMPROMISES INVOLVING SUBSTANTIAL RECOGNITION OF THE CLAIMS
AGAINST THE DEBROR FILED BY THE CAPLAN GROUP AND M-S IN VIEW OF THE
INADEQUACY OF THE RECORD FOR ASSESSING THE FAIRNESS OF THE PROPOSED
COMPROMISES.  PP. 424-441. 

(A) A BANKRUPTCY JUDGE HAS THE DUTY OF DETERMINING THAT A PROPOSED
COMPROMISE FORMING PART OF A REORGANIZATION PLAN IS FAIR AND EQUITABLE;
HE MUST ASCERTAIN ALL FACTS NECESSARY TO DETERMINE THE PROBABILITIES OF
SUCCESS SHOULD CLAIMS BE LITIGATED.  P. 424. 

(B) THE RECORD HERE PROVIDES A REVIEWING COURT WITH NO BASIS FOR
DISTINGUISHING BETWEEN WELL-REASONED CONCLUSIONS OF THE TRIAL COURT AND
MERE CONCLUSORY LANGUAGE UNSUPPORTED BY EVALUATION OF THE FACTS OR
ANALYSIS OF LAW.  P. 434. 

(C) AN UNFAIR REORGANIZATION PLAN MAY NOT BE APPROVED BY A
BANKRUPTCY COURT EVEN THOUGH THE VAST MAJORITY OF CREDITORS HAVE
APPROVED IT.  P. 435. 

(D) APPROVAL OF COMPROMISES IS MORE QUESTIONABLE WHEN THE AVAILABLE
FACTS INDICATE THE INADVISABILITY OF COMPROMISE THAN WHEN THERE ARE NO
FACTS POINTING EITHER WAY.  P. 436. 

(E) THE FACTS IN THE RECORD INDICATE THE PROBABLE EXISTENCE OF VALID
AND VALUABLE CAUSES OF ACTION, ANDSINCE THERE WERE NO FACTS PERMITTING
A REASONED JUDGMENT THAT THESE CLAIMS SHOULD BE COMPROMISED AS THE PLAN
PROVIDES, APPROVAL OF THE COMPROMISES WAS NOT JUSTIFIED.  PP. 438-441. 

2.  THE DISTRICT COURT ERRED IN RELYING UPON ONLY THE DEBTOR'S PAST
EARNINGS IN DETERMINING ITS VALUE AS A GOING CONCERN.  WITHOUT HAVING
EVIDENCE RELATING TO THE DEBTOR'S FUTURE PROSPECTS, THE COURT COULD NOT
ASSESS ITS GOING-CONCERN VALUE OR PROPERLY DETERMINE THAT THE DEBTOR
WAS INSOLVENT.  PP. 441-453. 

(A) WHETHER A REORGANIZATION PLAN EXCLUDING JUNIOR INTERESTS (HERE
STOCKHOLDERS) MEETS THE STATUTORY REQUIREMENT THAT THE PLAN BE "FAIR
AND EQUITABLE" DEPENDS UPON THE VALUE OF THE REORGANIZED COMPANY. 
SINCE THE DISTRICT COURT DID NOT APPLY THE PROPER VALUATION STANDARDS,
ITS DETERMINATION OF INSOLVENCY WAS IMPROPER AND THE REORGANIZATION
PALN CANNOT STAND.  P. 441. 

(B) THE VALUATION OF A COMPANY UNDERGOING REORGANIZATION MUST
INCLUDE AN ESTIMATE BASED ON AN INFORMED JUDGMENT EMBRACING ALL FACTS
RELEVANT TO FUTURE EARNING CAPACITY.  P. 442. 

(C) THE VALUE OF THE DEBTOR'S BUSINESS DEPENDED "NOT ON THE INHERENT
VALUE OF ITS ASSETS BUT PRIMARILY ON MAINTAINING A HIGH LEVEL OF
EARNINGS."  P. 443. 

(D) THE TRIAL JUDGE'S STEADFAST REFUSAL TO CONSIDER THE COMPANY'S
VALUE ONCE IT WAS OUT OF THE REORGANIZATION PROCEEDINGS CONSTITUTED AN
ERROR WHICH INFECTED HIS CONCLUSION THAT THE DEBTOR WAS INSOLVENT.  P.
444. 

(E) IN THE CIRCUMSTANCES OF THIS CASE, WHICH INVOLVE A COMPANY WHICH
HAD ESTABLISHED AND INCREASED ITS SHARE OF A HIGHLY COMPETITIVE MARKET
DESPITE INTENSE COMPETITION AND MAJOR INTERNAL CRISES, AN ADEQUATE
NOTION OF ITS GOING-CONCERN VALUE REQUIRED LOOKING TO THE FUTURE AS
WELL AS THE PAST.  P. 446. 

(F) THE INFORMATION INTRODUCED AT THE TWO INSOLVENCY HEARINGS WAS
INADEQUATE FOR EVEN A ROUGH EVALUATION OF TMT'S FUTURE PROSPECTS, A
SITUATION WHICH RESULTED FROM THE TRIAL JUDGE'S HOSTILITY TO EVIDENCE
CONCERNING THE COMPANY'S FUTURE.  PP. 447-451. 

364 F.2D 936, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES A CORPORATE REORGANIZATION UNDER CHAPTER X OF THE
BANKRUPTCY ACT, 52 STAT. 883, 11 U.S.C. 501-676.  IN THE MOST RECENT
PROCEEDINGS /1/  THE DISTRICT COURT APPROVED AN AMENDED PLAN OF
REORGANIZATION AND DISCHARGED THE PETITIONER COMMITTEE.  /2/  THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED, 364 F.2D 936 (1966).  WE
GRANTED CERTIORARI, 387 U.S. 929 (1967), BECAUSE THIS CASE PRESENTS
IMPORTANT QUESTIONS UNDER THE BANKRUPTCY LAWS.  SINCE WE BELIEVE THE
COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE DISTRICT COURT,
WE REVERSE THE JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT
WITH THE VIEWS EXPRESSED BELOW. 

        I. 

THE DEBTOR, TMT TRAILER FERRY, INC., WAS INCORPORATED IN 1954.  ITS
PRINCIPAL BUSINESS IS TRANSPORTING FREIGHT BETWEEN FLORIDA AND PUERTO
RICO.  IT PIONEERED "FISHYBACK" TRANSPORT, THE OCEAN-GOING EQUIVALENT
OF "PIGGYBACK" TRANSPORT.  FREIGHT LOADED INTO HIGHWAY TRAILERS IS
ROLLED ON AND OFF SEA-GOING BARGES WITHOUT REHANDLING.  IN ITS ORIGINAL
OPERATIONS TMT USED RENTED TUGS TO TOW CONVERTED NAVY LST'S LOADED WITH
SUCH TRAILERS AND OTHER FREIGHT.  LATER IT UNDERTOOK TO CONVERT A SELF
PROPELLED NAVY LSD FOR USE IN ITS BUSINESS.  SUBSTANTIAL DEBTS AND
LOSSES AROSE FROM THE UNSUCCESSFUL CONVERSION AND CONSEQUENT FAILURE IN
SERVICE OF THIS SHIP, DUBBED THE CARIB QUEEN. 

IN ADDITION, BETWEEN 1954 AND 1957, MORE THAN 4,000,000 SHARES OF
TMT COMMON STOCK WERE ISSUED, MANY OF THEM ACQUIRED AT LOW PRICES BY
PERSONS CLOSE TO THE COMPANY AND DISPOSED OF TO THE PUBLIC AT
RELATIVELY HIGH PRICES.  AS A RESULT OF THESE TRANSACTIONS AND OTHERS,
TMT BECAME UNABLE TO MEET ITS OBLIGATIONS, AND A REORGANIZATION
PROCEEDING WAS INITIATED AGAINST IT BY INVOLUNTARY PETITION IN JUNE
1957.  THE DEBTOR CONSENTED TO REORGANIZATION, AND C. GORDON ANDERSON
WAS APPOINTED TRUSTEE.  THE MOTION OF THE HOLDERS OF PREFERRED SHIP
MORTGAGES ON THE DEBTOR'S VESSELS (THE CAPLAN MORTGAGE) TO FORECLOSE
THEIR LIENS WAS DENIED BY THE TRIAL COURT.  ON APPEAL FROM THIS ORDER,
IT WAS POINTED OUT THAT NO PLAN OF REORGANIZATION HAD YET BEEN
PROPOSED, THAT THE POSSIBILITY OF SUCCESSFUL REORGANIZATION HAD NOT
BEEN EXPLORED, AND THAT NO EVIDENCE HAD BEEN RECEIVED TO SUPPORT ANY OF
THE COURT'S ORDERS.  THE COURT OF APPEALS REVERSED AND REMANDED WITH
INSTRUCTIONS THAT THE HOLDERS OF THE CAPLAN MORTGAGE BE PERMITTED TO
FORECLOSE UNLESS ADEQUATE PROVISION WAS MADE TO PROTECT THEIR INTERESTS
OR UNLESS THEY WOULD NOT BE PREJUDICED BY FURTHER DELAY. 

UPON REMAND THE TRIAL COURT HELD APPROPRIATE HEARINGS.  IT WAS
DETERMINED THAT THE DEBTOR WAS BEING OPERATED IN A MANNER WHICH WOULD
PRODUCE SUBSTANTIAL PROFITS.  A PLAN OF REORGANIZATION WAS PROPOSED
WHICH WOULD HAVE GIVEN THE CAPLAN MORTGAGE GROUP ALL THE COMMON STOCK
IN THE REORGANIZED COMPANY, A SUBSTANTIAL PORTION OF THE PREFERRED
STOCK, AND CONTROL OF THE BOARD OF DIRECTORS.  IN FEBRUARY 1959,
WITHOUT A HEARING CALLED FOR THAT PURPOSE AND SOLELY ON THE BASIS OF
DOCUMENTS AND RECORDS, THE TRIAL COURT DECLARED THE DEBTOR INSOLVENT
AND HELD THAT THE ORIGINAL STOCKHOLDERS HAD NO FURTHER INTEREST IN THE
REORGANIZED CORPORATION.  IN MARCH 1959 THE PLAN OF OF REORGANIZATION
WAS CONFIRMED, AND ANDERSON RESIGNED AS TRUSTEE TO BECOME PRESIDENT OF
THE REORGANIZED COMPANY.  A NEW TRUSTEE WAS APPOINTED, AND HE SOUGHT IN
EFFECT TO VACATE THE ORDER CONFIRMING THE PLAN.  HIS PETITION ALLEGED
THAT THE HOLDERS OF THE CAPLAN MORTGAGE AND MIRRILL-STEVENS DRY DOCK &
REPAIR CO. (M-S), ANOTHER SUBSTANTIAL CREDITOR, HAD ENTERED INTO AN
UNDISCLOSED AGREEMENT IN VIOLATION OF SEC. 221 OF CHAPTER X, 52 STAT.
897, 11 U.S.C. 621, AN AGREEMENT ACCORDING TO WHICH THE CAPLAN MORTGAGE
GROUP WOULD PAY M-S IN ORDER TO PROCURE ITS CONSENT TO THE PLAN OF
REORGANIZATION.  THIS PETITION WAS DENIED, THE SUCCESSOR TRUSTEE WAS
REMOVED, AND ANDERSON WAS REINSTATED AS TRUSTEE. 

THE PETITIONER COMMITTEE APPEALED FROM THE ORDER CONFIRMING THE
REORGANIZATION PLAN.  OBJECTION WAS MADE TO THE FAILURE OF THE TRIAL
COURT TO ORDER AN INVESTIGATION INTO THE CLAIMS OF CERTAIN CREDITORS
AND TO THE FAILURE TO CONDUCT A HEARING ON INSOLVENCY.  WHILE THAT
APPEAL WAS PENDING, THE CAPLAN GROUP, SUPPORTED BY ANDERSON, PETITIONED
THE TRIAL COURT TO CONSUMMATE THE CONFIRMED PLAN.  THE SECURITIES AND
EXCHANGE COMMISSION, HOWEVER, FILED A PETITION IN THE TRIAL COURT
SEEKING AN INVESTIGATION.  /3/  IT ALLEGED THAT AN INVESTIGATION WOULD
DISCLOSE THAT THE PLAN WAS UNFAIR BECAUSE IT TURNED THE CORPORATION
OVER TO PERSONS WHO HAD DEALT EXTENSIVELY IN THE STOCK OF THE DEBTOR IN
TRANSACTIONS WHICH WERE PROBABLY ILLEGAL.  IT WAS AGREED AMONG THE
PARTIES THAT AN INVESTIGATION SHOULD BE MADE. 

ANDERSON, IN HIS RE-ESTABLISHED ROLE AS TRUSTEE, CONDUCTED THE
INVESTIGATION.  FOURTEEN DAYS OF HEARINGS WERE HELD, 2,200 PAGES OF
TESTIMONY TRANSCRIBED, AND SOME 60 EXHIBITS COLLECTED.  ANDERSON'S
REPORT FROM THIS INVESTIGATION COVERS 40 PAGES IN THE ORIGINAL RECORD. 
HE CONCLUDED THAT THE DEBTOR'S BUSINESS HAD BEEN "WRECKED BY GROSS
MISMANAGEMENT, BY UNWISE AND UNSOUND EXPANSION FINANCED PRIMARILY
THROUGH THE SALE OF SECURITIES IN DISREGARD OF THE PROTECTIVE
PROVISIONS OF THE SECURITIES ACT OF 1933," AND THAT THE DEBTOR HAD
SUBSTANTIAL CAUSES OF ACTION AGAINST HOLDERS OF THE CAPLAN MORTGAGE. 
UPON THE RECOMMENDATION OF ANDERSON, THE TRIAL COURT VACATED ITS ORDER
CONFIRMING THE 1959 PLAN, AND THE COURT OF APPEALS AFFIRMED.  /4/ 

EARLY IN 1962 TWO NEW PLANS OF REORGANIZATION WERE PROPOSED.  THE
"INTERNAL PLAN," RECOMMENDED BY ANDERSON, PROVIDED FOR REORGANIZING THE
DEBTOR BY ISSUING NEW COMMON STOCK TO CREDITORS AND INVOLVED
"COMPROMISES" OF THE CAPLAN MORTGAGE AND M-S CLAIMS.  THE "CASH PLAN"
ENTAILED SIMILAR "COMPROMISES" AS WELL AS SELLING THE DEBTOR'S ASSETS
FOR CASH TO PERSONS UNCONNECTED WITH THE COMPANY AND DISTRIBUTING THE
CASH TO CREDITORS.  NEITHER PLAN PROVIDED FOR ANY PARTICIPATION BY
STOCKHOLDERS.  THE COMMITTEE, SUPPORTED BY THE SEC, OBJECTED TO THE
EXCLUSION OF STOCKHOLDERS FROM BOTH PLANS, AND OPPOSED THE INTERNAL
PLAN BECAUSE IT CONTEMPLATED THAT ANDERSON WOULD BECOME PRESIDENT OF
THE REORGANIZED COMPANY.  AFTER HEARINGS ON VALUATION, THE DISTRICT
COURT FOUND THE DEBTOR INSOLVENT AND APPROVED BOTH PLANS AS FAIR,
EQUITABLE, AND FEASIBLE.  A MAJORITY OF ALL CLASSES OF CREDITORS OTHER
THAN THE UNITED STATES ACCEPTED THE INTERNAL PLAN, AND THE DISTRICT
COURT CONFIRMED IT IN FEBRUARY 1963.  THE COMMITTEE APPEALED, SUPPORTED
BY THE SEC, ARGUING THAT THE PLAN WRONGLY EXCLUDED STOCKHOLDERS AND
IMPROPERLY CONTEMPLATED THAT ANDERSON WOULD BECOME PRESIDENT.  THE
COURT OF APPEALS RULED, WITHOUT REACHING THE OTHER CONTENTIONS, THAT IT
WAS PERMISSIBLE FOR THE PLAN TO CONTEMPLATE THAT ANDERSON WOULD BECOME
PRESIDENT, /5/  BUT IT HELD IN A SEPARATE APPEAL THAT THE PLAN WAS
DEFECTIVE FOR NOT GIVING PRIORITY TO THE GOVERNMENT'S NONTAX CLAIMS. 
/6/  THE CASE WAS ACCORDINGLY REMANDED TO THE DISTRICT COURT FOR
DETERMINATION OF WHETHER THE PLAN WOULD BE FEASIBLE IF THE GOVERNMENT'S
CLAIMS WERE GIVEN FULL PRIORITY. 

ON REMAND FURTHER HEARINGS WERE HELD, THE DISTRICT COURT FOUND THAT
IF THE GOVERNMENT'S NONTAX CLAIMS WERE GIVEN PRIORITY THE PLAN WOULD BE
FEASIBLE, AND AMENDMENTS WERE AUTHORIZED WHICH PROVIDED FOR IMMEDIATE
CASH PAYMENT TO THE GOVERNMENT.  THE COURT REGARDED THE FAILURE OF THE
COURT OF APPEALS TO REVERSE ITS OTHER ORDERS AS IN EFFECT AN AFFIRMANCE
OF THEM, AND IT REFUSED TO CONSIDER AGAIN THE CONTENTIONS OF THE
COMMITTEE AND THE SEC.  THE CREDITORS ACCEPTED THE AMENDED PLAN AND,
OVER THE OBJECTIONS OF THE COMMITTEE AND THE SEC THAT THE PLAN WAS NOT
FAIR OR EQUITABLE, THE DISTRICT COURT AFFIRMED IT.  THE COMMITTEE AGAIN
APPEALED, AND THE COURT OF APPEALS RULED THAT ITS EARLIER DECISION HAD
LEFT OPEN ALL ISSUES NOT IN TERMS DISCUSSED AND DECIDED.  /7/  PASSING
OVER THE FACT THAT THE DISTRICT COURT HAD CONSIDERED THE CASE IN
ERRONEOUS LEGAL PERSPECTIVE, AND EMPHASIZING THAT ITS OBLIGATION WAS TO
DETERMINE WHETHER THE TRIAL JUDGE HAD "ABUSED HIS DISCRETION" OR
REACHED CONCLUSIONS WHICH WERE "CLEARLY ERRONEOUS," THE COURT OF
APPEALS REFUSED TO REMAND THE CASE.  STATING THAT "(THIS . . .
LITIGATION MUST AT LONG LAST BE BROUGHT TO AN END,"  THE COURT OF
APPEALS AFFIRMED ALL JUDGMENTS AND ORDERS OF THE DISTRICT COURT.  THE
COMMITTEE, AGAIN SUPPORTED BY THE SEC, HAS PRESENTED A NUMBER OF
QUESTIONS ON CERTIORARI TO THIS COURT.  /8/  BECAUSE OF THE VIEW WE
TAKE OF THIS CASE, IT IS NECESSARY TO CONSIDER ONLY THE QUESTIONS OF
WHETHER IT WAS ERROR TO AFFIRM THE DISTRICT COURT'S APPROVAL OF
COMPROMISES OF SUBSTANTIAL CLAIMS AGAINST THE DEBTOR, AND WHETHER IT
WAS ERROR TO AFFIRM THE DISTRICT COURT'S JUDGMENT THAT THE DEBTOR WAS
INSOLVENT, WHEN THAT JUDGMENT WAS RENDERED WITHOUT CONSIDERING THE
FUTURE ESTIMATED EARNINGS OF THE REORGANIZED COMPANY. 

        II. 

COMPROMISES ARE "A NORMAL PART OF THE PROCESS OF REORGANIZATION." 
CASE V. LOS ANGELES LUMBER PRODS.  CO., 308 U.S. 106, 130 (1939).  IN
ADMINISTERING REORGANIZATION PROCEEDINGS IN AN ECONOMICAL AND PRACTICAL
MANNER IT WILL OFTEN BE WISE TO ARRANGE THE SETTLEMENT OF CLAIMS AS TO
WHICH THERE ARE SUBSTANTIAL AND REASONABLE DOUBTS.  AT THE SAME TIME,
HOWEVER, IT IS ESSENTIAL THAT EVERY IMPORTANT DETERMINATION IN
REORGANIZATION PROCEEDINGS RECEIVE THE "INFORMED, INDEPENDENT JUDGMENT"
OF THE BANKRUPTCY COURT.  NATIONAL SURETY CO. V. CORIELL, 289 U.S.
426, 436 (1933).  THE REQUIREMENTS OF SECS. 174 AND 221(2) OF CHAPTER
X, 52 STAT. 891, 897, 11 U.S.C. 574, 621(2), THAT PLANS OF
REORGANIZATION BE BOTH "FAIR AND EQUITABLE," APPLY TO COMPROMISES JUST
AS TO OTHER ASPECTS OF REORGANIZATIONS.  ASHBACH V. KIRTLEY, 389 F.2D
159 (C.A. 8TH CIR. 1961); CONWAY V. SILESIAN-AMERICAN CORP., 186 F.2D
210 (C.A. 2D CIR. 1950).  THE FACT THAT COURTS DO NOT ORDINARILY
SCRUTINIZE THE MERITS OF COMPROMISES INVOLVED IN SUITS BETWEEN
INDIVIDUAL LITIGANTS CANNOT AFFECT THE DUTY OF A BANKRUPTCY COURT TO
DETERMINE THAT A PROPOSED COMPROMISE FORMING PART OF A REORGANIZATION
PLAN IS FAIR AND EQUITABLE.  IN RE CHICAGO RAPID TRANSIT CO., 196 F.2D
484 (C.A. 7TH CIR. 1952).  THERE CAN BE NO INFORMED AND INDEPENDENT
JUDGMENT AS TO WHETHER A PROPOSED COMPROMISE IS FAIR AND EQUITABLE
UNTIL THE BANKRUPTCY JUDGE HAS APPRISED HIMSELF OF ALL FACTS NECESSARY
FOR AN INTELLIGENT AND OBJECTIVE OPINION OF THE PROBABILITIES OF
ULTIMATE SUCCESS SHOULD THE CLAIM BE LITIGATED.  FURTHER, THE JUDGE
SHOULD FORM AN EDUCATED ESTIMATE OF THE COMPLEXITY, EXPENSE, AND LIKELY
DURATION OF SUCH LITIGATION, THE POSSIBLE DIFFICULTIES OF COLLECTING ON
ANY JUDGMENT WHICH MIGHT BE OBTAINED, AND ALL OTHER FACTORS RELEVANT TO
A FULL AND FAIR ASSESSMENT OF THE WISDOM OF THE PROPOSED COMPROMISE. 
BASIC TO THIS PROCESS IN EVERY INSTANCE, OF COURSE, IS THE NEED TO
COMPARE THE TERMS OF THE COMPROMISE WITH THE LIKELY REWARDS OF
LITIGATION.  IT IS HERE THAT WE MUST START IN THE PRESENT CASE. 

THE CAPLAN MORTGAGE, CONSISTING OF PREFERRED SHIP MORTGAGES ON THE
DEBTOR'S VESSELS, BEARS A FACE AMOUNT OF $330,000.  THE HOLDERS PAID
$280,500 FOR IT.  UNDER THE PROPOSED COMPROMISE, THE HOLDERS WOULD
RECEIVE $280,500 PAID IN FICE ANNUAL CASH INSTALLMENTS, PLUS INTEREST
FROM THE ORIGINAL DUE DATE.  /9/  THE CLAIMS FILED AGAINST THE DEBTOR'S
ESTATE BY M-S TOTALED $1,628,284, OF WHICH $574,580 WAS SAID TO BE
SECURED BY MARITIME LIENS ON THE DEBTOR'S VESSELS.  UNDER THE TERMS OF
THE COMPROMISE, THESE CLAIMS ARE TO BE ALLOWED IN FULL, AFTER REDUCING
THEM ALL TO THE STATUS OF UNSECURED CLAIMS.  AS WITH OTHER UNSECURED
CLAIMS, THEY WOULD BE PAID FOR BY ISSUING COMMON STOCK IN THE
REORGANIZED COMPANY.  M-S WOULD WIND UP HOLDING APPROXIMATELY 40% OF
THE STOCK IN THE NEW COMPANY.  /10/  A GLANCE AT THESE TERMS MAKES IT
CLEAR THAT THE COMPROMISES INVOLVE SUBSTANTIAL RECOGNITION OF THE
CLAIMS FILED BY THE CAPLAN GROUP AND M-S AGAINST THE DEBTOR.  WHETHER
COMPROMISING ON THESE TERMS WAS FAIR AND EQUITABLE TO THE DEBTOR, THE
OTHER CREDITORS, AND THE STOCKHOLDERS DEPENDS UPON THE PROPER
ASSESSMENT OF THE CLAIMS WHICH THE DEBTOR ALLEGEDLY HAD AGAINST BOTH
THE CAPLAN GROUP AND M-S. 

THE CAPLAN MORTGAGE WAS THE FOCAL POINT OF THE 1960 INVESTIGATION
CONDUCTED BY THE TRUSTEE, ANDERSON.  THE MORTGAGE WAS ENTERED INTO
SHORTLY BEFORE THE PETITION IN BANKRUPTCY WAS FILED.  IT WAS NEEDED TO
RAISE CHASH TO MEET PAYMENTS DUE ON THE CARIB QUEEN.  AFTER AN
EXTENSIVE INVESTIGATION, ANDERSON CONCLUDED THAT THE MORTGAGE WAS A
FRAUDULENT TRANSFER NOT GIVEN FOR FAIR CONSIDERATION.  ANDERSON'S
REPORT SUCCINCTLY STATED THE UNFAIRNESS OF THE TERMS OF THE MORTGAGE: 

     "THE CAPLAN GROUP PAID $280,500 CASH FOR THE MORTGAGE TO TMT

  WHICH PAID ALL OF THE EXPENSES OF THE TRANSACTION.  THE MORTGAGE

  WAS FOR $330,000 PAYABLE IN SEVEN MONTHS AND IS CONVERTIBLE INTO

  COMMON STOCK AT THE OPTION OF THE HOLDERS, ONE SHARE OF COMMON

  FOR EACH $1.25 OF PRINCIPAL AMOUNT OF THE MORTGAGE.  THIS GAVE

  THE CAPLAN GROUP AN EFFECTIVE INTEREST RATE OF 30% PER ANNUM

  PRIOR TO MATURITY AND AN OPPORTUNITY TO STRADDLE BECAUSE OF THE

  CONVERSION FEATURE.  IF TMT PROSPERED, THEY COULD CONVERT THE

  MORTGAGE INTO COMMON STOCK FOR WHICH THEY WOULD HAVE PAID LITTLE

  MORE THAN $1.00 PER SHARE; IF TMT DID NOT, THE CAPLAN MORTGAGE

  WAS IN A SENIOR POSITION AND CONSTITUTED A LIEN ON TMT'S PRIME

  ASSETS, ABSOLUTELY NECESSARY TO THE COMPANY'S OPERATION.  SINCE

  THE CARIB QUEEN HAD BROKEN DOWN, THE VESSELS ENCUMBERED BY THE

  MORTGAGE WERE THE MAIN PRODUCERS OF INCOME FOR THE COMPANY." 

ANDERSON FOUND THAT THERE WAS "AMPLE EVIDENCE" TO SUPPORT THIS VIEW
OF THE MORTGAGE, AND THAT THEREFORE THE MORTGAGE SHOULD BE TREATED AS
NULL AND VOID.  SO TREATING IT WOULD NOT RELEASE TMT FROM THE
OBLIGATION TO REPAY THE MONEY RECEIVED, BUT IN CLAIMING THAT AMOUNT THE
HOLDERS OF THE MORTGAGE WOULD HAVE NO HIGHER STATUS THAN GENERAL
UNSECURED CREDITORS.  /11/     IN ADDITION, ANDERSON'S REPORT CONCLUDED
THAT THE PRINCIPAL HOLDERS OF THE CAPLAN MORTGAGE, ABRAMS, SHAFFER, AND
ERDMAN, HAD DIVERTED CORPORATE OPPORTUNITIES THROUGH THE FLAGRANT ABUSE
OF THEIR CONTROL, FIDUCIARY OR INSIDE POSITIONS, AND SHOULD BE MADE TO
ACCOUNT FOR THE PROFITS THEY HAD MADE.  NEARLY HALF OF THE ROUGHLY
4,000,000 SHARES OF OUTSTANDING TMT COMMON STOCK REACHED THE PUBLIC VIA
PURPORTED PRIVATE OFFERINGS THROUGH ABRAMS AND SHAFFER.  THESE TWO MEN
EXERCISED A HIGH DEGREE OF CONTROL OVER THE AFFAIRS OF THE COMPANY AND
ERDMAN WENT ALONG WITH THEM AND PARTICIPATED IN MANY OF THEIR
TRANSACTIONS.  ANDERSON FOUND THAT THESE THREE OCCUPIED A FIDUCIARY
RELATIONSHIP WITH TMT, AT LEAST INSOFAR AS ISSUANCE OF CAPITAL STOCK TO
THEM WAS CONCERNED.  "THEY TOOK ADVANTAGE OF THEIR INSIDE POSITION TP
OBTAIN STOCK FOR LESS THAN THE MARKET PRICE WHICH THEY SOLD TO THE
PUBLIC WITHOUT ANY REGISTRATION UNDER THE SECURITIES ACT AND IN
APPARENT VIOLATION OF THE PRIVATE OFFERING EXEMPTION UNDER WHICH ALL OF
THE STOCK WAS ISSUED."  THE ACTIVITIES OF THESE THREE MEN SUBSTANTIALLY
LESSENED TMT'S CHANCES OF OBTAINING FINANCING FROM REPUTABLE FINANCIAL
INSTITUTIONS "AND BY THE TIME THE CAPLAN MORTGAGE WAS EXECUTED THEY
WERE IN A POSITION TO DICTATE TERMS WHICH TMT WOULD BE FORCED TO
ACCEPT."  ANDERSON'S REPORT CONTINUED: 

     "IT IS THE OPINION OF THE TRUSTEE THAT PERSONS SUCH AS ABRAMS,

  SHAFFER AND ERDMAN WHO COME IN AS CREDITORS OF TMT UNDER THE

  CAPLAN MORTGAGE . . . SHOULD BE BARRED IN THIS EQUITY PROCEEDING

  FROM PROFITING AT TMT'S EXPENSE.  THEIR CLAIMS SHOULD BE REDUCED

  BY THE PROFITS THEY HAVE MADE ON SALES OF TMT STOCK WHICH THEY

  ACQUIRED FOR PRIVATE INVESTMENT PURPOSES, BUT WHICH THEY SOLD IN

VIOLATION OF THE LAW AT GREAT PROFIT TO THEMSELVES.  THESE

 PROFITS ARE EITHER ADMITTED OR READILY ASCERTAINABLE AND SHOULD

  BE RETURNED TO THE COMPANY." 

CHARACTERIZING THE CONDUCT OF ABRAMS, SHAFFER, AND ERDMAN IN ACQUIRING
UNREGISTERED TMT STOCK WITH NO INTENTION OF HOLDING IT FOR INVESTMENT
AS A "FRAUD," ANDERSON INDICATED THE POSSIBILITY OF LIABILITY UNDER THE
SEC'S RULE 10B-5.  /12/  ANDERSON SAID THAT AT A MINIMUM THEIR CLAIMS
SHOULD BE SUBORDINATED TO THOSE OF INNOCENT CREDITORS.  /13/ 

AS A RESULT OF THE REPORT FILED BY TRUSTEE ANDERSON, THE ORDER
CONFIRMING THE 1959 PLAN OF REORGANIZATION WAS VACATED.  OTH THE
TRUSTEE AND THE SEC FILED OBJECTIONS TO THE CAPLAN MORTGAGE CLAIM,
GROUNDED ON THE REASONS PRESENTED IN THE REPORT OF THE INVESTIGATION. 
THE DISTRICT COURT NEVER HELD HEARINGS ON THESE OBJECTIONS.  THE
MORTGAGE WAS NOT SET ASIDE AS A FRAUDULENT TRANSFER, NOR WAS IT DECIDED
TP USE THE CLAIMS AGAINST ABRAMS, SHAFFER, AND ERDMAN AS SETOFFS OR AS
A MEANS OF SUBORDINATING THE MORTGAGE CLAIMS.  RATHER, THE INTERNAL
PLAN OF REORGANIZATION WAS APPROVED BY THE DISTRICT COURT, PROVIDING
FOR A "COMPROMISE" OF THE CAPLAN MORTGAGE ALONG THE LINES ALREADY
INDICATED.  THE HOLDERS OF THE MORTGAGE WERE TO RECEIVE IN CASH WHAT
THEY HAD PUT UP FOR THE MORTGAGE, PLUS INTEREST ON THE PRINCIPAL FROM
THE ORIGINAL DUE DATE.  /14/ 

SEPARATE FROM THE CAPLAN MORTGAGE CLAIMS WERE THE CLAIMS FILED BY M
S, THE COMPANY IN CHARGE OF CONVERTING THE NAVY LSD INTO THE SELF
PROPELLED TRAILERSHIP WHICH TMT CHRISTENED THE CARIB QUEEN.  THESE
CLAIMS TOTALED $1,628,284, OF WHICH OVER $1,000,000 WAS FOR THE UNPAID
BALANCE DUE FOR CONVERTING THE CARIB QUEEN.  MARITIME LIENS ON OTHER
VESSELS OWNED BY TMT ALLEGEDLY SECURED $574,580 WORTH OF THESE CLAIMS. 
THE UNITED STATES, IN ITS POSITION AS A SUBSTANTIAL CREDITOR OF TMT,
FILED OBJECTIONS TO M-S CLAIMS, STATING THAT NONE OF THEM WERE ENTITLED
TO STATUS AS SECURED CLAIMS "FOR THE REASON THAT THEY AROSE MORE THAN
ONE YEAR PRIOR TO THE COMMENCEMENT OF THE REORGANIZATION PROCEEDINGS
HERE."  IT ALSO CONTENDED THAT THE CLAIMS HAD NO STATUS AS SECURED LIEN
CLAIMS, FOR "IT IS A RECOGNIZED PRINCIPLE OF ADMIRALTY AND MARITIME LAW
THAT CLAIMS FOR THE CONSTRUCTION OR RECONSTRUCTION OF VESSELS DO NOT
GIVE RISE TO MARITIME LIENS."  WHETHER THE PORTION OF THE CLAIMS FOR
WHICH M-S ASSERTS SECURED STATUS IS ACTUALLY ENTITLED TO THAT STATUS
HAS NEVER BEEN DETERMINED.  THE "COMPROMISE" OF THE M-S CLAIMS AMOUNTED
TO ALLOWING THEM IN THEIR ENTIRETY AS UNSECURED CLAIMS. 

ON THE MAIDEN VOYAGE OF THE CARIB QUEEN A SERIES OF BOILER FAILURES
CAUSED THE VESSEL TO BREAK DOWN AND NECESSITATED EXTENSIVE REPAIRS.  IN
NOVEMBER 1958 THE PETITIONER COMMITTEE NOTIFIED THE IDSTRICT COURT THAT
IN ITS OPINION THE "SERIES OF CATASTROPHES" WHICH HAD BEFALLEN THE
CARIB QUEEN WAS DUE TO "FAULTY DESIGN, INADEQUATE INSPECTION, DEFECTIVE
WORK ON THE REMODELING AND LATER REPAIR OF THE SHIP, HASTY AND IMPROPER
PREPARATIONS FOR A HAZARDOUS SEA VOYAGE AND UTILIZATION OF THE SHIP IN
A SERVICE FOR WHICH SHE WAS NOT FITTED AND IN AN UNSEAWORTHY
CONDITION."  THE COMMITTEE THOUGHT THAT TMT HAD CAUSES OF ACTION WHICH
COULD LEAD TO THE RECOVERY OF SUBSTANTIAL SUMS OF MONEY.  ALTHOUGH
ANDERSON'S REPORT ON HIS SUBSEQUENT INVESTIGATION OF THE AFFAIRS OF TMT
DEALT WITH CAUSES OF ACTION OTHER THAN THOSE ASSOCIATED WITH THE CAPLAN
MORTGAGE, IT MADE NO MENTION OF ANY CLAIMS TMT MIGHT HAVE AGAINST M-S.
THE SEC OBJECTED TO THE M-S CLAIMS, STATING THAT THERE WERE GROUNDS FOR
DISALLOWING THEM AND THAT THE MATTER SHOULD BE REFERRED TO A SPECIAL
MASTER FOR INVESTIGATION.  TRUSTEE ANDERSON ALSO SOUGHT REFERENCE OF
THESE CLAIMS TO A SPECIAL MASTER.  ON SEPTEMBER 1, 1961, THE SEC FILED
DETAILED SPECIFICATIONS OF ITS OBJECTIONS TO THE M-S CLAIMS, BASED ON
ITS OWN INVESTIGATION INTO THEM.  THE SEC STATED THAT THE DEBTOR 

     "HAS MERITORIOUS DEFENSES AND AN OFFSET OR COUNTERCLAIM
BECAUSE

  M-SA) DID NOT PROPERLY CONVERT THE VESSEL; (B) DID NOT COMPLY

  WITH THE TERMS OF THE CONTRACT; (C) DID NOT PROPERLY REPAIR THE

  VESSEL; AND (D) PERFORMED CERTAIN WORK FOR AND FURNISHED CERTAIN

  MATERIALS TO TMT, WITH NO AGREEMENT AS TO PRICE; M-S HAS FAILED

  TO ESTABLISH THE VAL,E OF SUCH WORK AND MATERIALS." 

THE SEC DESCRIBED WITH SOME PARTICULARITY THE FACTS WHICH HAD LED IT
TO THIS CONCLUSION.  THE MOST IMPORTANT OF THESE RELATED TO THE BOILER
FAILURE WHICH OCCURRED SHORTLY AFTER M-S DELIVERED THE CARIB QUEEN FOR
ITS MAIDEN VOYAGE.  WITHIN 48 HOURS OF SAILING FROM JACKSONVILLE,
FLORIDA, BOUND FOR SAN JUAN, PUERTO RICO, IT WAS DISCOVERED THAT A
BOILER AND SEVERAL TUBES WERE LEAKING.  TUBES OVERHEATED, RUPTURED, AND
WERE DISTORTED AS A RESULT OF SCALE WHICH HAD FORMED ON THEIR INNER
SURFACES.  THE SEC ATTRIBUTED THE SCALE TO M-S' NEGLIGENCE IN RUNNING
THE BOILERS WITH RAW WATER.  THE SEC ALSO STATED THAT THE IMPROPER
PRIMING OF THE BOILERS THAT OCCURRED ON THE FIRST TRIP WAS DUE TO
INSTALLATION OF INCORRECT BAFFLES BY M-S.  M-S HAD UNDERTAKEN TO MAKE
THE REQUIRED REPAIRS, AND THE SEC STATED THAT THIS REPAIR WORK WAS
PERFORMED NEGLIGENTLY, LEADING TO FURTHER TUBE FAILURES.  PART OF THE M
S CLAIMS WAS FOR UNPAID CHARGES FOR THIS REPAIR WORK.  M-S FILED AN
ANSWER ON SEPTEMBER 1 WHICH ADMITTED THAT WHEN THE CARIB QUEEN WAS
DELIVERED IT WAS SUFFERING FROM "CERTAIN CONSTRUCTION DEFICIENCIES,"
BUT DENIED ANY LIABILITY.  IT CONTENDED THAT ITS ASSERTED LIEN CLAIMS
WERE SECURED AND THAT IT AHD PERFORMED THE REPAIR WORK IN A PROPER
MANNER. 

ALTHOUGH THE SEC AND THE TRUSTEE HAD SOUGHT REFERENCE OF THE M-S
CLAIMS TO A SPECIAL MASTER FOR A HEARING, NO SUCH HEARING WAS EVER
HELD.  INSTEAD, THE TRUSTEE SUBSEQUENTLY MOVED FOR THE SUMMARY
ALLOWANCE OF THE CLAIMS ON THE GROUND THAT THERE WAS ONLY A "REMOTE"
POSSIBILITY OF MATERIALLY REDUCING THEM BY LITIGATING THE OBJECTIONS
FILED AGAINST THEM, AND THAT SUCH LITIGATION WOULD CAUSE "UNNECESSARY
DELAY."  /15/  AT THE HEARING DURING WHICH THE TRUSTEE PRESENTED HIS
MOTION FOR ALLOWING THE M-S CLAIMS IN FULL, NO FURTHER EXPLANATION OF
THIS RECOMMENDATION WAS PROVIDED.  COUNSEL FOR THE COMMITTEE PROTESTED
THAT "THIS IS NOT A REPORT, THIS IS A BARE STATEMENT OF CONCLUSION." 
THE TRIAL JUDGE HIMSELF RECOGNIZED THE IMPORTANCE OF THE QUESTION.  HE
SAID: 

     "I AM CONCERNED MYSELF.  I DO KNOW THAT WHOEVER TURNED THAT

  VESSEL (THE CARIB QUEEN) LOOSE WITH THE BOILERS IN IT, SOMEBODY

  MADE A BAD MISTAKE.  I DON'T KNOW WHO IT WAS." 

THE MATTER WAS PUT OVER, AND SUBSEQUENTLY THE COMMITTEE, SUPPORTED BY
THE COMMISSION, THE DEPARTMENT OF JUSTICE, AND THE CAPLAN MORTGAGE
GROUP, FILED OBJECTIONS.  NOTWITHSTANDING THESE OBJECTIONS, AND THE
DOUBTS THAT HE HAD EARLIER EXPRESSED, THE TRIAL JUDGE CONFIRMED THE
CLAIMS IN FULL AS UNSECURED CLAIMS WITHOUT FURTHER INVESTIGATION OF
THEM.  M-S, UNDER THE CONFIRMED PLAN, IS TO RECEIVE 40% OF THE COMMON
STOCK OF THE REORGANIZED COMPANY. 

ON JULY 11, 1962, THE TRIAL COURT FILED ITS OPINION AND ORDER
APPROVING BOTH THE INTERNAL AND THE CASH PLANS OF REORGANIZATION.  THE
INTERNAL PLAN CONTAINED THE PROVISIONS FOR "COMPROMISING" THE CAPLAN
MORTGAGE AND M-S CLAIMS.  WITH REGARD TO THESE SETS OF CLAIMS, THE
TRIAL COURT STATED THAT "IT WAS APPARENT" THAT SUCCESSFUL LITIGATION OF
THE CLAIMS TMT HAD AGAINST THE HOLDERS OF THESE CLAIMS "WOULD TAKE
POSSIBLY YEARS TO CONCLUDE . . . "  THE COURT CONTINUED: 

     "IT IS THE OPINION OF THE COURT THAT THESE COMPROMISES ARE
FAIR

AND EQUITABLE UNDER THE CIRCUMSTANCES AND THEY ARE HEREBY

APPROVED FOR INCLUSION IN THE INTERNAL PLAN.  THE COURT APPROVES

  THE OPINION EXPRESSED BY THE ATTORNEY FOR THE TRUSTEE THAT NO

  BETTER COMPROMISES CAN BE OBTAINED FOR THE DEBROR, THAT THE

  PROSPECT OF MATERIAL REDUCTION IN THE AMOUNT OF THESE CLAIMS DOES

  NOT WARRANT THE EXTENSIVE LITIGATION THAT WOULD OTHERWISE BE

  REQUIRED, AND THAT THE PROSPECT OF RECOVERIES BEYOND THE AMOUNT

  OF THE CLAIMS AS URGED BY THE SECURITIES AND EXCHANGE COMMISSION

  AND THE STOCKHOLDERS' COMMITTEE IS TOO REMOTE FOR SERIOUS

  CONSIDERATION . . . THE ALTERNATIVE TO APPROVAL OF THESE

  COMPROMISES IS EXTENSIVE LITIGATION AT HEAVY EXPENSE TO THE

  DEBTOR AND UNNECESSARY DELAY IN REORGANIZATION CONTRARY TO THE

  INTENT AND PURPOSE OF CHAPTER X OF THE BANKRUPTCY ACT." 

THIS STATEMENT CONSTITUTES THE ONLY, AND THE LAST, /16/  WORD THAT THE
TRIAL COURT SAID ON THE MERITS OF THE COMPROMISES OF THE CAPLAN
MORTGAGE AND M-S CLAIMS.  WITHOUT REFERENCE TO ANY OF THE OBJECTIONS
THAT HAD BEEN FILED OR TO THE SUBSTANTIAL FACTS IN THE RECORD TENDING
TO CAST DOUBT UPON THE CAPLAN MORTGAGE AND M-S CLAIMS, THE COURT
ACCEPTED THE BALD CONCLUSIONS OF THE TRUSTEE.  THIS DESPITE THE FACT
THAT THE TRUSTEE HAD ONCE CONCLUDED THAT THE CAPLAN MORTGAGE WAS NULL
AND VOID AND THAT TMT HAD SIZEABLE SETOFFS AGAINST ITS HOLDERS.  THIS
DESPITE THE FACT THAT THE TRUSTEE HAD ONCE SOUGHT REFERENCE OF THE M-S
CLAIMS TO A SPECIAL MASTER FOR INVESTIGATION.  THIS DESPITE THE FACT
THAT THE TRUSTEE HAD NEVER PLACED ON THE RECORD ANY OF THE FACTS OF HIS
SUBSEQUENT INVESTIGATION AND HAD NEVER PROVIDED ANY EXPLANATION OF WHY
HE HAD COMPLETELY REVERSED HIS FIELD ON THESE CLAIMS.  ALTHOUGH AT THIS
POINT IN THE PROCEEDINGS IT WAS CLEAR THAT NDERSON WAS TO BECOME
PRESIDENT OF THE REORGANIZED COMPANY, AND THOUGH THE TRIAL COURT WAS
UNDERSTANDABLY EAGER TO WIND UP THESE PROTRACTED PROCEEDINGS, THERE
NOWHERE APPEARS AN ADEQUATE EXPLANATION FOR THE TRUSTEE'S CURSORY,
CONCLUSORY RECOMMENDATION OF THESE "COMPROMISES," OR THE PERFUNCTORY,
ALMOST OFFHAND, MANNER IN WHICH THE COURT ACCEPTED THAT
RECOMMENDATION. 

IF THE QUOTED STATEMENT OF THE TRIAL COURT HAD BEEN THE RESULT OF AN
ADEQUATE AND INTELLIGENT CONSIDERATION OF THE MERITS OF THE CLAIMS, THE
DIFFICULTIES OF PURSUING THEM, THE POTENTIAL HARM TO THE DEBTOR'S
ESTATE CAUSED BY DELAY, AND THE FAIRNESS OF THE TERMS OF SETTLEMENT,
THEN IT WOULD WITHOUT QUESTION HAVE BEEN JUSTIFIABLE TO APPROVE THE
PROPOSED COMPROMISES.  IT IS ESSENTIAL, HOWEVER, THAT A REVIEWING COURT
HAVE SOME BASIS FOR DISTINGUISHING BETWEEN WELL-REASONED CONCLUSIONS
ARRIVED AT AFTER A COMPREHENSIVE CONSIDERATION OF ALL RELEVANT FACTORS,
AND MERE BOILER-PLATE APPROVAL PHRASED IN APPROPRIATE LANGUAGE BUT
UNSUPPORTED BY EVALUATION OF THE FACTS OR ANALYSIS OF THE LAW.  HERE
THEREIS NO EXPLANATION OF HOW THE STRENGTHS AND WEAKNESSES OF THE
DEBTOR'S CAUSES OF ACTION WERE EVALUATED OR UPON WHAT GROUND IT WAS
CONCLUDED THAT A SETTLEMENT WHICH ALLOWED THE CREDITOR'S CLAIMS IN
MAJOR PART WAS "FAIR AND EQUITABLE."  ALTHOUGH WE ARE TOLD THAT THE
ALTERNATIVE TO SETTLEMENT WAS "EXTENSIVE LITIGATION AT HEAVY EXPENSE"
AND "UNNECESSARY DELAY," THERE IS NO EVIDENCE THAT THIS CONCLUSION WAS
BASED ON AN EDUCATED ESTIMATE OF THE COMPLEXITY, EXPENSE, AND LIKELY
DURATION OF THE LITIGATION.  LITIGATION AND DEALY ARE ALWAYS THE
ALTERNATIVE TO SETTLEMENT, AND WHETHER THAT ALTERNATIVE IS WORTH
PURSUING NECESSARILY DEPENDS UPON A REASONED JUDGMENT AS TO THE
PROBABLE OUTCOME OF LITIGATION.  THE COMPLAINT VOICED BY COUNSEL FOR
THE PETITIONER COMMITTEE TO THE TRUSTEE'S REPORT ON THE COMPROMISES,
THAT "THIS IS A BARE STATEMENT OF CONCLUSION," SEEMS EQUALLY APPLICABLE
TO THE TRIAL COURT'S STATEMENT APPROVING THOSE COMPROMISES.  IN THESE
CIRCUMSTANCES IT WAS ERROR TO AFFIRM THAT ASPECT OF THE DISTRICT
COURT'S JUDGMENT APPROVING INCLUSION OF THE PROPOSED COMPROMISES IN THE
INTERNAL PLAN OF REORGANIZATION. 

THE COURT OF APPEALS DEALT WITH THE DISTRICT COURT'S APPROVAL OF THE
COMPROMISES IN FIVE SENTENCES.  NOTING THAT IT WAS ONLY THE COMMITTEE
AND THE SEC THAT WERE COMPLAINING, AND REMARKING THAT IT WAS UNLIKELY
THAT DISALLOWANCE OF THE COMPROMISES WOULD RESULT IN SOLVENCY, IT FELT
THAT IT WAS "SIGNIFICANT THAT NOT A SINGLE CREDITOR HAS EVER COMPLAINED
OF EITHER COMPROMISE."  364 F.2D 936, 941.  THE QUESTION OF INSOLVENCY
WILL BE RETURNED TO SHORTLY.  THE ARGUMENT THAT THE COMPROMISES WERE
PROPERLY APPROVED BECAUSE NO CREDITORS OBJECTED TO THEM SEEMS DOUBLY
DUBIOUS.  WHEN A BANKRUPTCY COURT EITHER FAILS ADEQUATELY TO
INVESTIGAGE POTENTIAL LEGAL CLAIMS HELD BY THE DEBTOR, OR REFUSES TO
PROVIDE AN ADEQUATE EXPLANATION OF THE BASIS FOR APPROVING COMPROMISES,
IT IS SCARCELY SURPRISING THAT CREDITORS FAIL TO COME FORWARD WITH
OBJECTIONS TO THE COMPROMISES.  MOREOVER, THIS COURT HAS HELD THAT A
PLAN OF REORGANIZATION WHICH IS UNFAIR TO SOME PERSONS MAY NOT BE
APPROVED BY THE COURT EVEN THOUGH THE VAST MAJORITY OF CREDITORS HAVE
APPROVED IT.  /17/     THE PRINCIPAL ARGUMENT OF THE RESPONDENT
SUPPORTING AFFIRMANCE OF THE ORDER APPROVING THE COMPROMISES IS THAT
"THE DISTRICT COURT HAD BEFORE IT A THOROUGH RECORD CONCERNING THE
FACTS AND ISSUES WITH RESPECT TO THE COMPROMISES OF THESE TWO CLAIMS." 
RESPONDENT'S BRIEF 38.  WITH REGARD TO THE CAPLAN MORTGAGE CLAIM,
RESPONDENT POINTS OUT THAT THE FACTS AND CIRCUMSTANCES SURROUNDING IT
WERE THOROUGHLY DOCUMENTED IN ANDERSON'S REPORT OF HIS INVESTIGATION. 
IT IS DIFFICULT TO SEE HOW THIS STRENGTHENS RESPONDENT'S POSITION,
HOWEVER, FOR THE REPORT CAREFULLY DOCUMENTED THE CONCLUSION THAT THE
CAPLAN MORTGAGE WAS A FRAUDULENT TRANSFER AND THAT CLAIMS AGAINST THE
INDIVIDUAL HOLDERS OF THE MORTGAGE COULD BE USED AS SETOFFS.  THE
DISTRICT COURT'S APPROVAL OF THE PROPOSED COMPROMISE IN THE FACE OF THE
FACTS AND CONCLUSIONS CONTAINED IN THE TRUSTEE'S REPORT IS MORE
DIFFICULT TO UNDERSTAND THAN WOULD BE APPROVAL ENTERED ON A BLANK
SLATE.  RESPONDENT ALSO POINTS OUT THAT THE TRIAL COURT HAD BEFORE IT
AN ANSWER TO ANDERSON'S REPORT, THE VARIOUS OBJECTIONS FILED TO THE
MORTGAGE CLAIM, THE CLAIM ITSELF, AND THE RECOMMENDATIONS OF THE
CREDITORS' COMMITTEE, THE TRUSTEE AND THE TRUSTEE'S COUNSEL FAVORING
THE PROPOSED SETTLEMENT.  THE OBJECTIONS FILED TO THE CLAIM MILITATE
AGAINST THE ADVISABILITY OF COMPROMISE, HOWEVER, AND THE OTHER MATTERS
REFERRED TO CONSIST EITHER OF CONCLUSORY DENIALS OF LIABILITY OR
CONCLUSORY STATEMENTS THAT THE CLAIMS SHOULD BE COMPROMISED.  THERE IS
NOTHING IN ALL THESE DOCUMENTS WHICH COULD PROVIDE A SOUND BASIS FOR
CONCLUDING THAT THE CLAIMS AGAINST THE MORTGAGE AND ITS HOLDERS WERE
UNMERITORIOUS.  /18/  IF THE TRIAL COURT EVER HAD BEFORE IT FACTS WHICH
SHOWED THE CLAIMS AGAINST THE CAPLAN MORTGAGE AND ITS HOLDERS TO BE
WITHOUT MERIT, OR IF THE COURT EVER DISCOVERED SOUND GROUNDS FOR
THINKING THAT THE DELAY INCIDENT TO LITIGATION OR THE UNLIKELIHOOD OF
OBTAINING AN ADEQUATE RECOVERY, MADE COMPROMISE ADVISABLE, NOTHING IN
THIS RECORD INDICATES IT. 

WITH REGARD TO THE M-S CLAIMS, RESPONDENT CONTENDS THAT THE RECORD
CONTAINS "AN ABUNDANCE OF PLEADINGS AND ALLEGATIONS" RESPECTING THEM. 
RESPONDENT'S BRIEF 33.  TO MAKE AN INFORMED AND INDEPENDENT JUDGMENT,
HOWEVER, THE COURT NEEDS FACTS, NOT ALLEGATIONS.  RESPONDENT ALSO
CONTENDS THAT THERE WERE SUFFICIENT FACTS IN THE RECORD, AND PROVIDES A
LONG LIST OF REFERENCES TO THE PLACES IN THE RECORD WHERE THESE FACTS
CAN BE FOUND.  IF, INDEED, THE RECORD CONTAINED ADEQUATE FACTS TO
SUPPORT THE DECISION OF THE TRIAL COURT TO APPROVE THE PROPOSED
COMPROMISES, A REVIEWING COURT WOULD BE PROPERLY RELUCTANT TO ATTACH
THAT ACTION SOLELY BECAUSE THE COURT FAILED ADEQUATELY TO SET FORTH ITS
REASONS OR THE EVIDENCE ON WHICH THEY WERE BASED.  THE DEFICIENCY IN
THIS CASE, HOWEVER, IS NOT A MERELY FORMAL ONE.  THE EVIDENCE REFERRED
TO BY RESPONDENT IS ANALYZED AT GREATER LENGTH IN THE MARGIN.  /19/
HERE IT IS WNOUGH TO SAY THAT TO THE EXTENT THAT THE RECORD CONTAINS
SOLID FACTS OF THE SORT NECESSARY FOR APPRAISING THE MERITS OF THE
CLAIMS AGAINST M-S, VIRTUALLY ALL OF THEM POINT TO THE PROBABLE
EXISTENCE OF VALID AND VALUABLE CAUSES OF ACTION.  BALANCING THESE
FACTS ARE NOTHING BUT BALD ASSERTIONS TO THE CONTRARY AND GENERAL
CONCLUSIONS FOR WHICH FOUNDATIONS NOWHERE APPEAR.  PARTICULARLY
NOTEWORTHY IS THE FACT THAT, DESPITE FREQUENT REQUESTS FOR AN
INVESTIGATION, AND NOTWITHSTANDING THE FACT THAT THE AVAILABLE EVIDENCE
POINTED TO PROBABLY VALID CLAIMS AGAINST M-S, NO INVESTIGATION OF THESE
MATTERS WAS EVER UNDERTAKEN OR OFEREED BY THE TRIAL COURT.  IT IS
DIFFICULT TO IMAGINE HOW AN INFORMED AND INDEPENDENT DECISION IN FAVOR
OF COMPROMISING THE M-S CLAIMS IN THE FULL AMOUNT AS UNSECURED CLAIMS
COULD HAVE BEEN REACHED ON THE PRESENT STATE OF THE RECORD. 

THE RECORD BEFORE US LEAVES US COMPLETELY UNINFORMED AS TO WHETHER
THE TRIAL COURT EVER EVALUATED THE MERITS OF THECAUSES OF ACTIONS HELD
BY THE DEBTOR, THE PROSPECTS AND PROBLEMS OF LITIGATING THOSE CLAIMS,
OR THE FAIRNESS OF THE TERMS OF COMPROMISE.  MORE THAN THIS, THE RECORD
IS DEVOID OF FACTS WHICH WOULD HAVE PERMITTED AS REASONED JUDGMENT THAT
THE CLAIMS OF ACTIONS SHOULD BE SETTLED IN THIS FASHION.  IN REACHING
THIS CONCLUSION, HOWEVER, IT IS NECESSARY TO EMPHASIZE THAT WE INTIMATE
NO OPINION AS TO THE MERITS OF THE DEBTOR'S CAUSES OF ACTION OR AS TO
THE ACTUAL FAIRNESS OF THE PROPOSED COMPROMISES.  TO THE CONTRARY, IT
IS CLEAR THAT THE PRESENT RECORD IS INADEQUATE FOR ASSESSING EITHER,
AND THAT A REMAND IS NECESSARY TO PERMIT FURTHER HEARINGS TO BE HELD. 
ONLY AFTER FURTHER INVESTIGATION CAN IT BE DETERMINED WHETHER, AND ON
WHAT TERMS, THESE CLAIMS SHOULD BE COMPROMISED. 

       III. 

UNDER SECS. 174, 221(2), OF CHAPTER X, 52 STAT. 891, 897, 11 U.S.C.
574, 621(2), A BANKRUPTCY COURT IS NOT TO APPROVE OR CONFIRM A PLAN OF
REORGANIZATION UNLESS IT IS FOUND TO BE "FAIR AND EQUITABLE."  THIS
STANDARD INCORPORATES THE ABSOLUTE PRIORITY DOCTRINE UNDER WHICH
CREDITORS AND STOCKHOLDERS MAY PARTICIPATE ONLY IN ACCORDANCE WITH
THEIR RESPECTIVE PRIORITIES, AND "IN ANY PLAN OF CORPORATE
REORGANIZATION UNSECURED CREDITORS ARE ENTITLED TO PRIORITY OVER
STOCKHOLDERS TO THE FULL EXTENT OF THEIR DEBTS . . . "  SEC V. UNITED
STATES REALTY & INPROVEMENT CO., 310 U.S. 434, 452 (1940).  SINCE
PARTICIPATION BY JUNIOR INTEREST DEPENDS UPON THE CLAIMS OF SENIOR
INTERESTS BEING FULLY SATISFIED, WHETHER A PLAN OF REORGANIZATION
EXCLUDING JUNIOR INTERESTS IS FAIR AND EQUITABLE DEPENDS UPON THE VALUE
OF THE REORGANIZED COMPANY.  IN THE PRESENT CASE THE DISTRICT COURT
EXCLUDED THE STOCKHOLDERS FROM PARTICIPATION BECAUSE OF ITS FINDING
THAT THE DEBTOR WAS INSOLVENT.  SINCE THE DETERMINATION OF INSOLVENCY
WAS NOT MADE IN ACCORDANCE WITH THE PROPER STANDARDS OF VALUATION,
NEITHER THE APPROVAL NOR THE CONFIRMATION OF THE PLAN CAN STAND. 

THE APPROPRIATE STANDARD FOR VALUING A COMPANY UNDERGOING
REORGANIZATION WAS SET OUT AT LENGTH IN CONSOLIDATED ROCK PRODUCTS CO.
V. DUBOIS, 312 U.S. 510, 526 (1941): 

     "AS MR. JUSTICE HOLMES SAID IN GALVESTON, H. & S.A. RY. CO. V.

  TEXAS, 210 U.S. 217, 226, 'THE COMMERCIAL VALUE OF PROPERTY

  CONSISTS IN THE EXPECTATION OF INCOME FROM IT.'  . . . SUCH

  CRITERION IN THE APPROPRIATE ONE HERE, SINCE WE ARE DEALING WITH

  THE ISSUE OF SOLVENCY ARISING IN CONNECTION WITH REORGANIZATION

  PLANS INVOLVING PRODUCTIVE PROPERTIES . . . THE CRITERION OF

  EARNING CAPACITY IS THE ESSENTIAL ONE IF THE ENTERPRISE IS TO BE

 FREED FROM THE HEAVY HAND OF PAST ERRORS, MISCALCULATIONS OR

  DISASTER, AND IF THE ALLOCATION OF SECURITIES AMONG THE VARIOUS

  CLAIMANTS IS TO BE FAIR AND EQUITABLE . . . SINCE ITS APPLICATION

  REQUIRES A PREDICTION AS TO WHAT WILL OCCUR IN THE FUTURE, AN

  ESTIMATE, AS DISTINGUISHED FROM MATHEMATICAL CERTITUDE, IS ALL

  THAT CAN BE MADE.  BUT THAT ESTIMATE MUST BE BASED ON AN INFORMED

  JUDGMENT WHICH EMBRACES ALL FACTS RELEVANT TO FUTURE EARNING

  CAPACITY AND HENCE TO PRESENT WORTH, INCLUDING, OF COURSE, THE

  NATURE AND CONDITION OF THE PROPERTIES, THE PAST EARNINGS RECORD,

  AND ALL CIRCUMSTANCES WHICH INDICAT WHETHER OR NOT THAT RECORD IS

  A RELIABLE CRITERION OF FUTURE PERFORMANCE."  /20/ 

IN THE PRESENT CASE THE BOOK VALUE OF THE DEBTOR'S ASSETS ON MAY 31,
1962, WAS $1,887,185.77.  CLAIMS AGAINST THE DEBTOR TOTALED
$5,477,370.05.  THE ACTUAL FAIR VALUE OF THE DEBTOR'S TOTAL ASSETS WAS
$2,238,387.62 AND THEIR NET VALUE WAS $1,978,481.73.  ALTHOUGH THESE
FIGURES SHOW THAT LIABILITIES FAR EXCEEDED ASSETS, THEY ARE NOT OF
CONTROLLING IMPORTANCE.  THE DISTRICT COURT RECOGNIZED THAT GOING
CONCERN VALUE, NOT BOOK OR APPRAISAL VALUE, MUST GOVERN DETERMINATION
OF THE FAIRNESS OF THE PLANS OF REORGANIZATION, AND RESPONDENT CONCEDS
THAT THE VALUE OF TMT'S BUSINESS DEPENDED "NOT ON THE INHERENT VALUE OF
ITS ASSETS BUT PRIMARILY ON MAINTAINING A HIGH LEVEL OF EARNINGS." 
BRIEF FOR RESPONDENT 42. 

AT THE VALUATION HEARINGS THE TRUSTEE STATED THAT HIS ANALYSIS OF
THE FINANCIAL STRUCTURE AND BUSINESS OF THE DEBTOR RESULTED IN A GOING
CONCERN VALUE OF $2,031,403.72.  A VALUATION EXPERT PRESENTED BY THE
TRUSTEE ESTIMATED THE GOING-CONCERN VALUE AT BETWEEN $1,607,692 AND
$1,800,000.  HE ARRIVED AT HIS CONCLUSION BY MULTIPLYING HIS ESTIMATE
OF THE FUTURE EARNINGS OF THE COMPANY BY 7.7, A FIGURE BASED ON THE
ASSUMPTION THAT EARNINGS WOULD BE 13% OF VALUE.  THE VALUATION EXPERT
PRESENTED BY THE COMMITTEE CONCLUDED THAT ESTIMATED FUTURE EARNINGS
AFTER TAXES WOULD BE $327,500, AND MULTIPLYING THIS BY A PRICE-EARNINGS
RATIO OF 13.8, ARRIVED AT THE CONCLUSION THAT TMT HAD A VALUE OF
$4,519,500.  THE TRIAL JUDGE TOOK AN INTERMEDIATE POSITION.  BY
PROJECTING CURRENT EARNINGS OF THE DEBTOR FOR THE FIRST FIVE MONTHS OF
1962 OVER THE REMAINDER OF THE YEAR, HE CONCLUDED THAT PRE-TAX EARNINGS
WOULD BE $568,000.  REDUCED BY ESTIMATED INCOME TAXES AND CAPITALIZED
AT 10%, THIS YIELDED A GOING-CONCERN VALUE OF $2,780,000.  SINCE THIS
FIGURE FELL WELL BELOW THE $5,477,370.05 OF OUTSTANDING CLAIMS, HE
CONCLUDED THAT THE DEBTOR WAS INSOLVENT.  ON THIS BASIS THE PLAN WAS
APPROVED AND CONFIRMED. 

WHEN THE COURT OF APPEALS REMANDED TO THE DISTRICT COURT FOR
REORGANIZATION PLAN AFTER GIVING FULL PRIORITY TO THE GOVERNMENT'S
CLAIMS, THE DISTRICT COURT CONCLUDED THAT TMT WAS "MORE INSOLVENT NOW
THAN IT WAS IN 1962," FOR EARNINGS HAD DECLINED FROM THE HIGH POINT OF
1962, AND THE COURT'S INITIAL DETERMINATION HAD BEEN BASED ON THE
PROJECTED EARNINGS FOR THAT YEAR.  THE DECLINE IN EARNINGS HAD OCCURRED
EVEN THOUGH THE VOLUME OF BUSINESS HAD GROWN SUBSTANTIALLY, FOR
INCREASED COMPETITION FROM LARGE STEAMSHIP LINES SERVING PUERTO RICO
HAD FORCED.  TMT TO LOWER ITS REATES AND THUS ITS MARGIN OF PROFIT. 
THE DISTRICT COURT REAFFIRMED ITS FINDING OF INSOLVENCY.  ON APPEAL,
THE COURT OF APPEALS STATED THAT IT DID NOT HAVE TO DETERMINE UHETHER
OR NOT THE DISTRICT COURT'S FINDING OF INSOLVENCY WAS ACCURATELY
COMPUTED, BUT MERELY WHETHER IT WAS "CLEARLY ERRONEOUS."  ON THIS BASIS
THE CONCLUSION OF INSOLVENCY WAS AFFIRMED. 

IN A COMPLEX CASE OF THIS NATURE IT IS NOT THE PROVINCE OF THIS
COURT TO ATTEMPT TO RETRY ISSUES OF FACT WHICH HAVE BEEN FULLY
LITIGATED BELOW.  INDEED, AS THE COURT OF APPEALS STATED, MUCH WEIGHT
MUST BE GIVEN TO THE LONG FAMILIARITY OF THE DISTRICT JUDGE WITH THE
DEBTOR AND TO HIS EVALUATION OF THE WITNESSES WHO TESTIFIED IN HIS
PRESENCE.  IN THE FACE OF CONFLICTING EXPERT TESTIMONY AS TO THE GOIND
CONCERN VALUE OF THE DEBTOR BASED ON CURRENT EARNINGS, THE TRIAL JUDGE
ADOPTED A POSITION IN BETWEEN.  WE ARE NOT DISPOSED TO DISPUTE THE
CONCLUSION OF THE COURT OF APPEALS THAT THIS DETERMINATION BY THE TRIAL
JUDGE WAS NOT "CLEARLY ERRONEOUS."  HOWEVER, EXAMINATION OF THE FACTS
OF THIS CASE DEMONSTRATES THAT THE DISTRICT COURT DID NOT HAVE BEFORE
IT ALL OF THE EVIDENCE AND TESTIMONY RELATING TO THE FUTURE PROBLEMS
AND PROSPECTS OF THE COMPANY WHICH WERE NECESSARY TO ASSESS ITS VALUE
AS A GOING CONCERN.  INDEED, THE TRIAL JUDGE STEADFASTLY REFUSED TO
CONSIDER THE VALUE OF THE COMPANY ONCE IT WAS OUT OF THE REORGANIZATION
PROCEEDINGS.  IN THIS THERE WAS ERROR, AND IT WAS AN ERROR WHICH
INFECTED THE CONCLUSIONS OF THE TRIAL COURT THAT THE DEBTOR WAS
INSOLVENT.  EVALUATIONS OF EVIDENCE REACHED BY THE ACCURATE APPLICATION
OF ERRONEOUS LEGAL STANDARDS ARE ERRONEOUS LEGAL STANDARDS ARE
ERRONEOUS EVALUATIONS. 

TMT PLAYS A MINOR BUT UNIQUE ROLE IN CARRYING GOODS BETWEEN PUERTO
RICO AND THE UNITED STATES.  THIS DOMESTIC OFFSHORE TRADE IS HIGHLY
COMPETITIVE AND GENERALLY UNPROFITABLE.  THE HIGH DENSITY, HIGH VOLUME,
AND HIGH OPERATING-COST TRADE WITH PUERTO RICO FLOWS IN AND THROUGH THE
NORTH ATLANTIC PORTS.  TMT, OPERATING IN A TRIANGLE BETWEEN SAN JUAN,
MIAMI, AND JACKSONVILLE, IS CONFINED TO THE LOW DENSITY, LOW INVESTMENT
SOUTH ATLANTIC TRADE.  TMT CARRIES ONLY ABOUT 2% OF THE TOTAL TRADE
WITH PUERTO RICO, AND THE DOMINANT CARRIER IN THE MARKET IS IN DIRECT
COMPETITION WITH IT IN ITS HOME PORT OF JACKSONVILLE.  WHEN TMT ENTERED
THE MARKET WITH ITS NOVEL IDEA OF CARRYING ROLL-ON AND ROLL-OFF FREIGHT
IN TOWED VESSELS, THE MARKET WAS RIPE FOR AN INNOVATION OF THIS SORT. 
HOWEVER, THE ILLS WHICH PLAGUED ITS EARLY YEARS THREW TMT INTO
BANKRUPTCY IN 1957.  PREVENTED BY THE EXIGENCIES OF THE BANKRUPTCY
PROCEEDING FROM CAPITALIZING ON THE NOVEL IDEA IT HAD INTRODUCED, TMT
HAS WATCHED THE DEVELOPMENT OF CONTAINER SHIPPING, WHICH HAS TAKEN OVER
A LARGE SHARE OF THE UNITED STATES-PUERTO RICO TRADE FOR WHICH IT MIGHT
OTHERWISE HAVE HOPED TO COMPETE.  ONETHELESS, TMT REMAINS THE ONLY ROLL
ON AND ROLL-OFF CARRIER IN THE TRADE, AND IT HAS SEEN ITS OWN BUSINESS
RISE 10% TO 20% A YEAR DUE TO THE INCREASED FREQUENCY OF DIRECT TO
CAPITALIZE ON ITS NOVEL IDEA, IT HAS REMAINED IN A STRONG COMPETITIVE
POSITION.  TRADE WITH PUERTO RICO HAS INCREASED STEADILY AND RAPIDLY,
AND TMT'S BUSINESS HAS GROWN COMMENSURATELY.  DESPITE A DESTRUCTIVE
RATE WAR WHICH MARKEDLY LOWERED THE REVENUES EARNED PER VOYAGE, TMT
INCREASED ITS REVENUE FROM $3,801,000 IN 1962, WHEN THE FIRST
INSOLVENCY HEARING WAS HELD, TO $4,779,000 IN 1964, THE LATEST YEAR IN
THE RECORD.  BETWEEN THE 1962 AND THE 1965 HEARINGS THE FLEET OF
VESSELS WAS INCREASED FROM THREE TO FIVE AND THE NUMBER OF TRUCK
TRAILERS FROM 350 TO 670.  MOREOVER, IN THE 1965 HEARING THE BUEINESS
MANAGER COULD REPORT THAT AFTER IT PAID THE FORTHCOMING INSTALLMENT FOR
THE RECONVERSION OF ONE OF ITS VESSELS, THE COMPANY WOULD HAVE NO
FURTHER SIGNIFICANT OUTSTANDING INDEBTEDNESS.  TMT HAS CONTINUED TO BE
THE ONLY UNSUBSIDIZED CARRIER IN THE SOUTH ATLANTIC TRADE, THE ONLY ONE
THAT MAKES MONEY.  DESPITE THE INCREASE IN VOLUME AND REVENUE, HOWEVER,
THE RATE WAR AND OTHER FACTORS SUCH AS RISING COSTS CAUSED NET EARNINGS
TO DROP AFTER 1962, AND THEY HAVE NOT YET REGAINED THE LEVEL
ESTABLISHED THAT YEAR.  TMT'S TAX-LOSS CARRY-OVER HAS EXPIRED, WITH THE
RESULT THAT EARNINGS ARE NOW SUBSTANTIALLY REDUCED BY FEDERAL TAXES. 
THE GENERAL TRADE PICTURE BETWEEN PUERTO RICO AND THE UNITED STATES IS
IN FLUX, AND TH RATES APPLICABLE TO THE TRADE ARE UNDERGOING CONTINUING
REVISION AND INVESTIGATION.  THE VESSELS TMT USES ARE OLD AND IN NEED
OF REPLACEMENT.  THE SUPPLY OF LST'S HAS NEARLY DRIED UP, AND IT SEEMS
TO BE UNDERSTOOD THAT THE REPLACEMENT VE-SELS WILL HAVE TO BE BUILT
FROM SCRATCH.     IN SHORT, TMT WOULD SEEM TO BE A COMPANY WHICH HAS
ESTABLISHED, PRESERVED, AND INCREASED ITS SHARE OF A HIGHLY COMPETITIVE
MARKET DESPITE INTENSE COMPETITION AND MAJOR INTERNAL CRISES.  IT
OPERATES IN A MARKET UNDERGOING SUBSTANTIAL CHANGE AND IS ITSELF FACED
WITH THE IMMINENT NEED TO RE-EQUIP ITS FLEET.  IN THESE CIRCUMSTANCES,
AN ADEQUATE NOTION OF THE GOING-CONCERN VALUE OF TMT COULD BE OBTAINED
ONLY BY LOOKING TO THE FUTURE AS WELL AS THE PAST.  AGAINST THIS
BACKGROUND WE MUST EXAMINE THE INFORMATION WHICH THE TRIAL COURT HAD
BEFORE IT FOR ASSESSING THE FUTURE PROSPECTS OF TMT.  THE BASIC SOURCE
FOR INFORMATION OF THESE MATTERS WAS, OF COURSE, THE TRUSTEE AND HIS
BUSINESS MANAGER.  A SHORT SUMMARY OF THE HIGHLIGHTS OF THEIR TESTIMONY
AS IT RELATED TO THE FUTURE PROSPECTS OF TMT WILL DEMONSTRATE THE
INADEQUACY OF THE INFORMATION PROVIDED THE TRIAL JUDGE FOR MAKING THIS
CRUCIAL DETERMINATION. 

AT THE FIRST INSOLVENCY HEARING THE BUSINESS MANAGER ATTEMPTED TO
ESTIMATE THE EARNINGS OF THE COMPANY FOR THE NEXT FOUR YEARS, BUT HE
MADE HIS PROJECTIONS SOLELY ON THE BUSINESS AS IT THEN WAS.  ALTHOUGH
TMT HAD ATTAINED THE MAXIMUM NUMBER OF VOYAGES POSSIBLE WITH THE FLEET
IT THEN HAD, THE BUSINESS MANAGER HAD NOT LOOKED INTO THE POSSIBILITY
OF CHARTERING ADDITIONAL VESSELS.  THE TRUSTEE TESTIFIED THAT SEVERAL
VESSELS WOULD HAVE TO BE REPLACED IN THE NEXT TWO YEARS, BUT ADMITTED
THAT HE WAS UNABLE TO PREDICT WHAT SUCH VESSELS WOULD COST.  WHEN THE
TRUSTEE WAS ASKED IF THERE WAS FORESEEABLE ROOM FOR EXPANSION OF TMT'S
BUSINESS, THE COURT AGREED WITH AN OBJECTION THAT THIS WAS BEYOND THE
SCOPE OF THE VALUATION HEARING.  THE TRUSTEE'S EXPERT ON VALUATION GAVE
HIS OPINION AS TO GOING-CONCERN VALUE SOLELY ON THE BASIS OF THE
TRUSTEE'S PROJECTION OF EARNINGS, WHICH IN TURN WAS BASED WHOLLY ON
PAST EARNINGS.  THOSE EARNINGS FIGURES HAD BEEN DRAWN UP SOME TIME
PRIOR TO THE HEARING, AND IT WAS CONCEDED THAT THEY MIGHT HAVE COME OUT
DIFFERENTLY IF THE PROJECTION HAD BEEN MADE AT THE TIME OF THE
VALUATION HEARING.  WHEN ASKED IF HE WOULD ATTEMPT TO PREDICT WHETHER
THE COMPANY WOULD BE ABLE TO PAY DIVIDENDS ONCE IT WAS OUT OF
REORGANIZATION, OF WHETHER LARGE CAPITAL INVESTMENTS WOULD SOAK UP ALL
EARNINGS, THE TRUSTEE'S EXPERT REPLIED THAT HE HAD NOT BEEN ASKED TO
CONSIDER THAT QUESTION AND DID NOT THINK IT LEGITIMATE.  ALTHOUGH HE
AGREED THAT REASONABLY FORESEEABLE CHANGES AND IMPROVEMENTS SHOULD BE
TAKEN INTO ACCOUNT IN VALUING THE COMPANY, HE STATED THAT HE HAD BEEN
GIVEN NO INFORMATION ON WHICH TO MAKE SUCH PREDICTIONS. 

AT THE SECOND HEARING ON THE VALUE OF THE COMPANY, THE BUSINESS
MANAGER ADMITTED THAT HE HAD MADE NO NEW PROJECTION OF FUTURE EXPENSES,
REVENUE, OR INCOME, EVEN THOUGH THREE YEARS HAD PASSED AND THE BUSINESS
OUTLOOK OF THE FIRM WAS MARKEDLY DIFFERENT.  ALTHOUGH TMT'S FLEET HAD
GROWN IN THE INTERIM FROM THREE TO FIVE VESSELS, AND THERE WAS AN
IMMINENT NEED FOR REPLACEMENT OF THE OLDER SHIPS, THE BUSINESS MANAGER
WAS UNABLE TO PREDICT THE LIKELY IMPACT ON EARNINGS OF THE ACQUISITION
OF NEWER VESSELS.  HE STATED THAT THE NEW VESSELS WOULD BE TOWED CRAFT
THAT LOADED FROM THE STERN, AND THAT THEY WERE APT TO COST BETWEEN
$1,250,000 AND THAT THEY WERE APT TO COST BETWEEN $1,250,000 AND
$1,500,000 EACH.  HOWEVER, THOUGH SOME STUDIES AND INQUIRIES HAD BEEN
CONDUCTED, THERE WERE NO FINAL OR DEFINITE PLANS OR DRAWINGS FOR THE
NEW SHIPS.  ALTHOUGH NEW, BETTER, AND MORE EFFICIENT VESSELS WERE
NEEDED SOON TO IMPROVE THE COMPANY'S COMPETITIVE SITUATION, IN THE
PRESENT STATE OF PLANNING IT WOULD BE TWO YEARS AFTER THE COMPANY WAS
OUT OF REORGANIZATION BEFORE NEW VESSELS WOULD BE OBTAINED.  AT THE
SECOND HEARING, AS AT THE FIRST, THE BUSINESS MANAGER COULD GIVE NO
ESTIMATE OF WHAT PORTION OF THE ADMINISTRATION COSTS OF RUNNING TMT WAS
DUE TO THE REORGANIZATION PROCEEDINGS.  ALTHOUGH HE THOUGH THAT TRADE
BETWEEN THE UNITED STATES AND PUERTO RICO WAS INCREASING, HE DID NOT
KNOW HOW MUCH OR IN WHAT WAYS.  THOUGH HE THOUGHT THAT TMT'S SHARE OF
THE PUERTO RICAN TRADE WAS REMAINING COMPARATIVELY CONSTANT, HE DID NOT
KNOW FOR CERTAIN.  HE ALSO DID NOT KNOW WHAT PORTION OF TMT'S PRESENT
VOLUME OF BUSINESS WAS ATTRIBUTABLE TO DIRECT PIGGYBACK INTERCHANGE. 

THE DATA WHICH THE TRUSTEE AND HIS BUSINESS MANAGER HAD SUBMITTED
WITH REGARD TO PAST INCOME AND EXPENSES UNDOUBTEDLY PROVIDED A CLEAR
PICTURE OF WHAT THE COMPANY HAD BEEN EXPERIENCEING IN THE PAST.  GIVEN,
HOWEVER, THAT IS WAS A RELATIVELY SMALL AND YOUNG COMPANY MUCH IN NEED
OF INTERNAL REBUILDING AND OPERATING IN A MARKET UNDERGONG IMPORTANT
ECONOMIC AND TECHNOLOGICAL CHANGE, IT WAS ESSENTIAL THAT SOME CLEAR
IDEA BE GAINED OF ITS FUTURE PROSPECTS.  IT SEEMS PERFECTLY OBVIOUS
THAT THE INFORMATION INTRODUCED AT THE TWO HEARINGS WAS INADEQUATE FOR
GAINING EVEN A ROUGH IDEA OF TMT'S FUTURE PROSPECTS. 

THE FUNDAMENTAL REASON THAT THERE WAS INSUFFICIENT EVIDENCE
CONCERNING THE FUTURE PROSPECTS OF TMT WAS THAT THE TRIAL COURT SHOWED
ITSELF UNALTERABLY HOSTILE TO INQUIRIES DIRECTED TO TMT'S FUTURE. 
DURING THE FIRST HEARING THE FOLLOWING INTERCHANGE TOOK PLACE WHEN THE
COURT CUT OFF A QUESTION AIMED AT DETERMINING WHETHER THE VOLUME OF
TMT'S SOUTHBOUND TRAFFIC COULD BE INCREASED DURING THE OFF-PEAK
SEASON: 

     "Q.  BUT IF THIS ENTERPRISE WEREOUT FROM UNDER THE
PROCEEDINGS, WOULD IT? 

     "THE COURT.  WELL, WE ARE DEALING WITH AN ORGANIZATION THAT IS

  IN.  LET'S ASSUME THAT IT WILL STAY RIGHT THERE AND TRY TO GET

 THE VALUE.  IT IS NOT GOING TO GET OUT UNTIL IT IS REORGANIZED. 

     "MR. MASON.  WE ARE TRYING TO GET THE VALUE WHEN REORGANIZED. 

     "THE COURT.  THAT IS OF NO IMPORTANCE TO ME.  LET'S VALUE IT
AS

  IT NOW EXISTS TO DETERMINE WHAT SHOULD BE DONE IN THESE

  PROCEEDINGS." 

AT A LATER TIME, WHEN COUNSEL AGAIN SOUGHT TO ESTABLISH THAT THE PROPER
WAY TO VALUE THE COMPANY WAS TO TRY TO DETERMINE FORESEEABLE FACTORS
WHICH WOULD AFFECT FUTURE EARNINGS, THE COURT PRE-EMPTED THE ANSWER BY
REMARKING, "MR. WITNESS, WE DO NOT WANT POSSIBILITIES."  STILL LATER,
THE JUDGE SAID: 

"ALL THESE PROJECTIONS INTO THE FUTURE ARE NOT GOING TO BOTHER THE
COURT.  THESE CREDITORS HAVE WAITED TOO LONG TO GET THEIR MONEY.  WE
HAVE HAD THIS THING FOR YEARS AND YEARS.  I IMAGINE MOST OF THEM LONG
SINCE HAVE GONE TO THE POORHOUSE OR GIVEN UP."  ONE CAN EASILY
SYMPATHIZE WITH THE DESIRE OF A COURT TO TERMINATE BANKRUPTCY
REORGANIZATION PROCEEDINGS, FOR THEY ARE FREQUENTLY PROTRACTED.  THE
NEED FOR EXPEDITION, HOWEVER, IS NOT A JUSTIFICATION FOR ABANDONING
PROPER STANDARDS.  IT IS ALSO EASY TO SHARE THE COURT'S CONCERN THAT
CREDITORS RECEIVE THEIR MONEY AS PROMPTLY AS POSSIBLE.  HOWEVER, THE
RIGHT OF STOCKHOLDERS TO PARTICIPATE AT ALL HUNG ON THERESULT OF THE
VALUATION PROCEEDINGS; SEDULOUSLY ELIMINATING ALL INQUIRY INTO THE
FUTURE MAY, IN THIS CONTEXT, HAVE CAUSED THE RIGHTS OF THE STOCKHOLDERS
TO HAVE BEEN RELINQUISHED BY DEFAULT. 

ALTHOUGH THREE YEARS ELAPSED BEFORE THENEXT HEARING, THE JUDGE
DISPLAYED THE SAME UNWILLINGNESS TO PERMIT INQUIRY INTO THE FUTURE
PROSPECTS OF TMT.  WHEN COUNSEL FOR THE SEC TRIED TO OPEN UP THE
SUBJECT, THE FOLLOWING DIALOGUE OCCURRED: 

    "MR. GONSEN.  WE HAVE NO STARTLING FIGURES, BUT A SERIES OF

  QUESTIONS RELATING TO THE POSSIBLE FUTURE PROSPECTS OF THIS

  COMPANY. 

      "THE COURT.  THERE IS NO POSSIBLE FUTURE PROSPECTS OTHER THAN

  WHAT IS GOING ON.  IT IS POSSIBLE IT WILL BECOME THE GREATEST

  FLEET IN THE WORLD AND IT IS POSSIBLE TO GO BANKRUPT IN A FEW

  MONTHS.  AS A MATTER OF FACT, IF THE COMPETITION HAD SUCCEEDED IN

  THEIR PLANS, YOU WOULD HAVE NO PROBLEM HERE, THEY WOULD HAVE BEEN

  SOLD. 

"MR. GONSEN.  DO I UNDERSTAND YOU HONOR DOES NOT DESIRE ME TO EXAMINE
AS TO EVALUATION? 

     "THE COURT.  YOU DO." 

PERHAPS THE PROPER READING OF THE RELUCTANCE OF THE JUDGE TO GO INTO
FUTURE PROSPECTS AT THE SECOND HEARING WAS THAT IN HIS VIEW THE ISSUE
OF INSOLVENCY WAS NO LONGER IN THE CASE.  THE COURT OF APPEALS HAD
RULED ON THE QUESTION OF WHETHER THE TRUSTEE COULD BE THE PRESIDENT OF
THE REORGANIZED COMPANY AND WHETHER THE GOVERNMENT'S NONTAX CLAIMS
SHOULD BE ALLOWED IN FULL WITHOUT DISCUSSING THE OTHER ISSUES.  IN THE
TRIAL JUDGE'S VIEW, THE COURT OF APPEALS'  FAILURE TO SPEAK ON OTHER
ISSUES CONSTITUTED AFFIRMANCE.  ON THE APPEAL FROM THE SECOND HEARING,
HOWEVER, THE COURT OF APPEALS TOOK PAINS TO POINT OUT THE ERROR IN THIS
CONCLUSION.  THE RESULT OF THE TRIAL COURT'S RULING WAS TO EXCLUDE FROM
THE HEARING THE GENERAL ISSUE OF INSOLVENCY AND TO LIMIT THE HEARING TO
THE QUESTION OF WHETHER DEVELOPMENTS BETWEEN THE FIRST AND SECOND
HEARINGS HAD RENDERED THE PLAN UNFEASIBLE IN LIGHT OF THE NECESSITY OF
GIVING FULL PRIORITY TO THE GOVERNMENT'S NONTAX CLAIMS.  IN SUCH
CIRCUMSTANCES IT MIGHT BE EXPECTED THAT THE COURT OF APPEALS WOULD HAVE
EXAMINED THE RECORD TO SEE IF THE FACTS SUPPORTED THE CONCLUSION WHICH
THE TRIAL JUDGE HAD FELT FORECLOSED FROM HAVING TO MAKE AGAIN, BUT
WHICH WAS IN FACT STILL IN THE CASE.  INSTEAD, HOWEVER, THE COURT OF
APPEALS MERELY QUOTED AT LENGTH FROM THE TRIAL COURT'S CONCLUSIONS THAT
THE PLAN WAS FEASIBLE AND STATED THAT THE RULING THAT THE COMPANY WAS
STILL INSOLVENT WAS NOT CLEARLY ERRONEOUS. 

AT THE CLOSE OF THE SECOND HEARING THE SEC AND THE COMMITTEE ARGUED
VIGOROUSLY THAT THE ISSUE OF VALUATION WAS STILL OPEN AND THAT FUTURE
PROSPECTS SHOULD HAVE BEEN CONSIDERED BY THE JUDGE.  ALTHOUGH ITS VIEW
OF THE EFFECT OF THE APPEAL FROM THE FIRST HEARING DID NOT REQUIRE IT
TO DO SO, THE COURT ADDRESSED ITSELF TO THE MERITS OF THIS CONTENTION
IS ITS OPINION AND ORDER APPROVING THE AMENDED PLAN OF REORGANIZATION: 

     "THE SEC AND THE STOCKHOLDERS COMMITTEE INSIST, AS THEY DID

  DURING THE VALUATION HEARINGS IN 1962, THAT THE COURT SHOULD HAVE

  REQUIRED EVIDENCE OF FUTURE EARNINGS, SUBSEQUENT TO

  REORGANIZATION, BASED UPON ESTIMATES OF REVENUES AND EXPENSES

AFTER SUBSTANTIAL CHANGES IN OPERATIONS AND ACQUISITION AND

 SUBSTITUTION OF NEW TYPE VESSELS AND OTHER EQUIPMENT, AND BASED

  UPON EXPANDED OPERATIONS EXPECTED TO TAKE PLACE UNDER PRIVATE

  MANAGEMENT.  HOWEVER, NEITHER THE TRUSTEE (NOR THE COURT CAN

  ANTICIPATE WHAT THE REORGANIZED COMPANY WILL DO, AND ANY

  ESTIMATES OF FUTURE EARNINGS UNDER DIFFERENT CIRCUMSTANCES OF

  OPERATION WOULD BE SPECULATIVE AND UNRELIABLE." 

THIS WAS NOT A CORRECT STATEMENT OR APPLICATION OF THE LAW.  THIS COURT
HAS DECLARED THAT IN EVERY CASE IT IS INCUMBENT UPON THE REORGANIZATION
COURT TO CONSIDER "ALL FACTS RELEVANT TO FUTURE EARNING CAPACITY . . .
INCLUDING . . . ALL CIRCUMSTANCES WHICH INDICATE WHETHER OR NOT (THE
PAST EARNINGS) RECORD IS A RELIABLE CRITERION OF FUTURE PERFORMANCE." 
CONSOLIDATED ROCK PRODUCTS CO. V. DUBOIS, SUPRA.  IF IT IS SHOWN THAT
THE RECORD OF PAST EARNINGS IS NOT A RELIABLE CREITERION OF FUTURE
PERFORMANCE, THE COURT MUST FORM AN ESTIMATE OF FUTURE PERFORMANCE BY
INQUIRING INTO ALL FORESEEABLE FACTORS WHICH MAY AFFECT FUTURE
PROSPECTS.  IN FORMING THIS ESTIMATE, "MATHEMATICAL CERTITUDE"  IS
NEITHER EXPECTED NOR REQUIRED. 

IN THIS CASE WE HAVE A COMPANY ENGAGED IN A HOTLY COMPETITIVE
MARKET, A MARKET EXPERIENCING A SEVERE RATE WAR WHICH WOULD PROBABLY
ALTER THE RELATIVE STANDINGS OF THE COMPETITORS.  THE MARKET AS A WHOLE
WAS WITNESSING SUBSTANTIAL TECHNOLOGICAL CHANGE, AND TMT ITSELF WAS ONE
OF THE PRIME INNOVATORS.  TMT'S PRINCIPAL MARKET, PUERTO RICO, WAS
UNDERGOING CONSIDERABLE EXPANSION.  IT WAS SHOWN WITHOUT CONTRADICTION
THAT TMT NEEDED TO REPLACE ITS PRESENT FLEET WITH NEW AND DIFFERENT
SHIPS.  IT SHOULD HAVE BEEN CLEAR TO THE TRIAL COURT THAT THE
CIRCUMSTANCES BROUGHT OUT AT THE TWO HEARINGS SHOWED THAT THE PAST
EARNINGS RECORD WAS NOT A RELIABLE CREITERION OF FUTURE PERFORMANCE,
AND THAT SOUND EVALUATION OF THE COMPANY AS A GOING CONCERN REQUIRED
EXAMINATION OF THE FUTURE PROSPECTS OF THE COMPANY.  THE COURT WAS NOT
DEALING WITH AN ESTABLISHED COMPANY IN A STATIC MARKET, NOR WAS IT
BEING ASKED TO VALUE THE COMPANY'S FUTURE PROSPECTS BY HYPOTHESIZING
UNFORESEEABLE CHANGES IN OPERATIONS OR MARKET STRUCTURE.  IT WAS
EVIDENT THAT CERTAIN SPECIFIC AND PREDICTABLE ALTERATIONS WOULD HAVE TO
BE MADE IN THE EQUIPMENT AND OPERATIONS OF THE COMPANY IN ORDER TO MEET
FORESEEABLE ALTERATIONS IN THE MARKET.  THE TRIAL COURT SHUT ITS EYES
TO THESE IMPORTANT DEVELOPMENTS AND IN SO DOING IGNORED A CARDINAL
PRINCIPLE OF PROPER EVALUATION. 

        IV. 

BECAUSE ONLY PAST EARNINGS WERE RELIED UPON IN THIS CASE IN
DETERMINING THE VALUE OF THE DEBTOR AS A GOING CONCERN, WE REVERSE AND
REMAND TO THE COURT OF APPEALS WITH DIRECTIONS TO REMAND TO THE
DISTRICT COURT TO HOLD NEW HEARINGS ON VALUATION.  WITHOUT IN ANY WAY
PREJUDGING THE ISSUE, IT IS POSSIBLE THAT WHEN THE COMPROMISES
DISCUSSED IN PART II OF THIS OPINION ARE RECONSIDERED, AND WHEN THE
COMPANY IS PROPERLY VALUED BY TAKING INTO ACCOUNT ITS FUTURE PROSPECTS,
THE COMPANY WILL BE FOUND NOT TO BE INSOLVENT.  SUCH A FINDING WOULD
PERMIT STOCKHOLDERS TO PARTICIPATE.  THERE IS, THEREFORE, NO POINT IN
CONSIDERING AT THIS JUNCTURE THE QUESTION PRESENTED BY THE PETITIONER
CONCERNING THE STOCKHOLDERS' CLAIMS UNDER THE FEDERAL SECURITIES LAWS. 
SINCE THE COMMITTEE WILL, OF COURSE, BE ENTITLED TO PARTICIPATE IN THE
NEW HEARINGS OF VALUATION AND INSOLVENCY, THE ORDER OF THE DISTRICT
COURT DISCHARGING IT IS VACATED.  SO DOING, HOWEVER, REFLECTS NO
OPINION ON THE MERITS OF THE ARGUMENTS PRESENTED IN THIS COURT BY
PETITIONER AS TO WHY IT SHOULD NOT HAVE BEEN DISCHARGED.  FINALLY,
THERE IS NO NECESSITY TO DETERMINE WHETHER IT WAS IMPROPER TO
CONTEMPLATE MAKING THE TRUSTEE PRESIDENT OF THE REORGANIZED COMPANY.  A
GREAT DEAL OF TIME HAS PASSED SINCE THAT WAS DEEMED AN ADVISABLE PLAN,
AND INTERVENING CIRCUMSTANCES MAY WELL HAVE ALTERED THE VIEWS OF THE
PARTICIPANTS.  SINCE NEW HEARINGS ON VALUATION AND INSOLVENCY WILL
FURTHER PROTRACT THESE PROCEEDINGS, IT SEEMS ADVISABLE TO PUT THAT
QUESTION ASIDE. 

FOR THE REASONS STATED IN THIS OPINION, WE REVERSE AND REMAND TO THE
COURT OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  THIS CASE HAS BEEN IN THE FEDERAL COURTS FOR OVER 10 YEARS. 
THE EARLIER REPORTED DECISIONS CONSIST OF THE FOLLOWING:  CAPLAN V.
ANDERSON, 256 F.2D 416 (C.A. 5TH CIR. 1958); CAPLAN V. ANDERSON, 259
F.2D 283 (C.A. 5TH CIR. 1958)' TMT TRAILER FERRY, INC. V. ANDERSON, 292
F.2D 455 (C.A. 5TH CIR. 1961), CERT. DENIED SUB NOM. SHAFFER V.
ANDERSON, 368 U.S. 956 (1962); UNITED STATES V. ANDERSON, 334 F.2D 111
(C.A. 5TH CIR.), CERT. DENIED, 379 U.S. 879 (1964); IN RE TMT TRAILER
FERRY, INC., 334 F.2D 118 (C.A. 5TH CIR. 1964). 

/2/  THE ORDER OF THE DISTRICT COURT DISCHARGING THE PETITIONER
COMMITTEE WAS LATER MODIFIED TO PERMIT THE COMMITTEE TO PROSECUTE
APPEALS FROM THAT DECISION. 

/3/  THE SEC PARTICIPATED AS A PARTY IN BOTH THE DISTRICT COURT AND
THE COURT OF APPEALS, AND HAS APPEARED AS AN UNNAMED RESPONDENT BEFORE
THIS COURT.  SEE 52 STAT. 890, 894, 11 U.S.C. 572, 608.  THIS COURT
REQUESTED THE GOVERNMENT TO EXPRESS ITS VIEWS AT THE PETITION STAGE,
386 U.S. (1967).  FOR THE MOST PART THE SEC HAS TAKEN POSITIONS
CONSISTENT WITH THOSE OF THE PETITIONER COMMITTEE. 

/4/  TMT TRAILER FERRY, INC. V. ANDERSON, 292 F.2D 455 (C.A. 5TH
CIR. 1961), CERT. DENIED SUB NOM. SHAFFER V. ANDERSON, 368 U.S. 956
(1962).  THE COMMITTEE'S EARLIER APPEAL ATTACKING THE CONFIRMATION OF
THE 1959 PLAN, WHICH HAD BEEN CONSOLIDATED WITH THIS APPEAL BY THE
CAPLAN MORTGAGE GROUP, WAS MOOTED BY THE ORDER OF THE TRIAL COURT
VACATING THE CONFIRMATION. 

/5/  IN RE TMT TRAILER FERRY, INC., 334 F.2D 118 (C.A. 5TH CIR.
1964). 

/6/  UNITED STATES V. ANDERSON, 334 F.2D 111 (C.A. 5TH CIR.), CERT.
DENIED, 379 U.S. 879 (1964). 

/7/  PROTECTIVE COMMITTEE V. ANDERSON, 364 F.2D 936, 939 (C.A. 5TH
CIR. 1966). 

/8/  THE OTHER ISSUES, BRIEFED AND ARGUED AT LENGTH, ARE SUCCINCTLY
STATED IN THE BRIEF FILED BY THE SEC: 

"1.  WHETHER UNDER CHAPTER X OF THE BANKRUPTCY ACT, WHICH PROVIDES
FOR A DISINTERESTED TRUSTEE AS THE FOCAL POINT OF THE REORGANIZATION,
THE TRUSTEE IS PRECLUDED FROM ASS,MING THE PRESIDENCY OF THE
REORGANIZED COMPANY; AND WHETHER A PLAN THAT CONTEMPLATES THAT RESULT
MAY BE CONFIRMED. 

        .          .          .          . 

"4.  WHETHER THE COURTS BELOW ERRED IN REFUSING TO CONSIDER THE
MERITS OF THE STOCKHOLDERS' CLAIMS BASED ON ASSERTED VIOLATIONS OF THE
SECURITIES LAWS. 

"5.  WHETHER THE DISTRICT COURT ERRED IN DISCHARGING THE
STOCKHOLDERS' COMMITTEE BEFORE THE REORGANIZATION PROCEEDINGS WERE
COMPLETED, ON THE BASIS OF ITS FINDING THAT THE DEBTOR WAS INSOLVENT." 
BRIEF FOR SEC 2, 3. 

/9/  THE INTEREST IS TO BE TREATED AS AN UNSECURED CLAIM PAYABLE IN
COMMON STOCK IN THE REORGANIZED COMPANY.  THE PLAN CONFIRMED BY THE
COURT WAS LATER AMENDED TO PROVIDE THAT THE HOLDERS OF THE CAPLAN
MORTGAGE WOULD RECEIVE $250,000 IN CASH AT THE DATE OF CONSUMMATION OF
THE REORGANIZATION PLAN, RATHER THAN $280,500 OVER FIVE YEARS. 

/10/  SINCE THE REST OF THE VOTING STOCK WILL GO TO THE OTHER
NUMEROUS AND SCATTERED GENERAL CREDITORS, PETITIONER ARGUES THAT M-S'
40% OWNERSHIP WILL GIVE IT INITIAL WORKING CONTROL OF THE REORGANIZED
COMPANY.  PETITIONER'S BRIEF 28, 29. 

/11/  ACCORDINGLY, TO PAY HOLDERS OF THE CAPLAN MORTGAGE $280,500 IN
CASH, EVEN THOUGH ONLY THE AMOUNT THEY PAID FOR THE MORTGAGE, WOULD BE
A SUBSTANTIAL PREFERMENT OF THEM WHEN THE REORGANIZATION PLAN ALLOWS
GENERAL UNSECURED CREDITORS ONLY A PRO RATA PORTION OF SOME 1,300,000
SHARES OF NEW COMMON STOCK IN THE REORGANIZED COMPA4Y. 

/12/  17 CFR 240.10B-5; PROMULGATED BY THE SEC PURSUANT TO SEC.
10(B) OF THE SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 891, 15 U.S.C.
78J. 

/13/  SUCH SUBORDINATION WOULD EFFECTIVELY ELIMINATE THEIR CLAIMS IF
TMT WERE AS INSOLVENT AS THE COURT SUBSEQUENTLY FOUND. 

/14/  THESE TERMS WERE LATER MODIFIED, AS INDICATED IN N. 9, SUPRA. 

/15/  THE TRUSTEE REACHED THIS CONCLUSION AFTER AN INVESTIGATION
DESCRIBED BY HIM IN FULL AS FOLLOWS:  "(THE TRUSTEE, WITH THE
ASSISTANCE OF ATTORNEYS IN THE OFFICE OF HIS COUNSEL, INVESTIGATED THE
FACTS ALLEGED IN THE SPECIFICATIONS OF OBJECTIONS FILED BY THE SEC AND
IN THE ANSWER OF MERRILL-STEVENS.  THIS INVESTIGATION CONSISTED OF AN
EXAMINATION OF NUMEROUS DOCUMENTS ASSEMBLED BY THE SEC DURING ITS
INVESTIGATION, TOGETHER WITH COPIES OF STATEMENTS MADE BY INDIVIDUALS
WHICH HAD BEEN OBTAINED DURING THE INVESTIGATION.  ALSO EXAMINED WERE
NUMEROUS DOCUMENTS AND STATEMENTS FURNISHED BY MERRIL-STEVENS IN
SUPPORT OF ITS ANSWER TO THE SPECIFICATIONS OF OBJECTIONS BY THE SEC."
THE TRUSTEE DID NOT SET OUT ANY FINDINGS OF FACT WHICH HE ARRIVED AT IN
THE COURSE OF THIS "INVESTIGATION," AND PROVIDED NO EXPLANATION OF THE
REASONING WHICH HAD LED TO HIS "CONSIDERED OPINION" THAT THE M-S CLAIMS
SHOULD BE ALLOWED IN FULL. 

/16/  IN DECEMBER 1964, AFTER THE CASE HAD BEEN REMANDED FOR THE
SECOND TIME BY THE COURT OF APPEALS, THE COMMITTEE SOUGHT AN ORDER FOR
PRODUCTION OF DOCUMENTS RELATING TO THE CARIB QUEEN, ALLEGING THEY
WOULD SHOW THAT TMT HAD A CAUSE OF ACTION AGAINST M-S AND THE CAPLAN
GROUP.  THE COMMITTEE SAID THESE PARTIES HAD ACTED "IN COLLUSION WITH
MEMBERS OF THE DEBTOR'S OLD MANAGEMENT AND CONTROL GROUP TO DEFRAUD THE
MARITIME ADMINISTRATION AND THE DEBTOR BY MISREPRESENTATION OF THE
RECONVERSION CONTRACT PRICE AND BY PREMATURE RELEASE OF THE VESSEL
WITHOUT PROPER COMPLIANCE WITH THE REQUIREMENTS OF THE RECONVERSION
CONTRACT.  THE SAME DOCUMENTS ALSO BEAR ON THE PROPRIETY OF THE
COMPROMISES . . . "  AT THE HEARING HELD ON THIS MOTION IT APPEARED
THAT THESE DOCUMENTS WERE HELD BY THE MARITIME ADMINISTRATION, WHICH
HAD NO OBJECTION TO TURNING THEM OVER BUT WISHED THE COURT TO ISSUE A
FORMAL ORDER SO THAT ALL PARTIES COULD HAVE ACCESSTO THEM.  THE COURT
DENIED THE MOTION, SAYING "THERE IS NOTHING IN THE MOTION THAT SHOWS
THAT THESE DOCUMENTS ARE MATERIAL TO ANY ISSUE BEFORE THIS COURT." 

WHEN RECONFIRMING THE PLAN AFTER THE SECOND REMAND, THE COURT ADDED
NOTHING TO THE EXPLANATION QUOTED IN THE TEXT, FOR IT ERRONEOUSLY
CONCLUDED THAT APPROVAL OF THE SETTLEMENT HAD ALREADY BEEN AFFIRMED BY
THE COURT OF APPEALS. 

/17/  CASE V. LOS ANGELES LUMBER RODS.  CO., 308 U.S. 106 (1939). 
"(WHERE A PLAN IS NOT FAIR AND EQUITABLE AS A MATTER OF LAW IT CANNOT
BE APPROVED BY THE COURT . . . CONGRESS HAS REQUIRED BOTH THAT THE
REQUIRED PERCENTAGES OF EACH CLASS OF SECURITY HOLDERS APPROVE THE PLAN
AND THAT THE PLAN BE FOUND TO BE "FAIR AND EQUITABLE.'  THE FORMER IS
NOT A SUBSTITUTE FOR THE LATTER."  ID., AT 114.     /18/  THE ANSWER
FILED TO THE ANDERSON REPORT OCCUPIES SEVEN PAGES IN THE RECORD.  ASIDE
FROM BARE STATEMENTS THAT INSUFFICIENT FACTS WERE FOUND AND THAT THE
TRUSTEE'S CONCLUSIONS WERE NOT CONCEDED, IT OPPOSES VACATING THE
ORIGINAL PLAN OF REORGANIZATION ALMOST WHOLLY ON GROUNDS OF ESTOPPEL,
LACHES, RES JUDICATA, AND RELIANCE.  THE CLAIM ITSELF MERELY DETAILS
THE TERMS OF THE MORTGAGE AND THE AMOUNTS DUE UNDER IT.  THE
RECOMMENDATIONS FAVORING SETTLEMENT STATED ONLY THAT THE MERITS OF THE
CLAIMS HAD BEEN EXAMINED, THAT THE POSSIBILITY OF RECOVERY WAS REMOTE,
AND THAT LITIGATION WOULD CAUSE "UNNECESSARY DELAY." 

/19/  RESPONDENT CONTENDS THAT THE TRIAL COURT COULD HAVE RENDERED
AN INFORMED DECISION ON THE MERITS OF THE M-S COMPROMISE OF THE BASIS
OF THE FOLLOWING MATTERS IN THE RECORD: 

(1) THE SUMMARY OF M-S' PROOF OF CLAIM (THE FULL PROOF NOT HAVING
BEEN INCLUDED IN THE RECORD).  THIS MERELY STATED THE AMOUNTS CLAIMED
BY M-S AND THE LIENS ASSERTED TO SECURE SOME OF THE CLAIMS. 

(2) THE 1958 LETTER FROM THE COMMITTEE TO THE COURT.  THIS ASSERTED
THAT TMT HAD GOOD CAUSES OF ACTION AGAINST M-S WHICH WOULD RESULT IN
SUBSTANTIAL RECOVERY.  WITH REGARD TO THE CARIB QUEEN, IT ACCUSD M-S OF
"FAULTY DESIGN, INADEQUATE INSPECTION, DEFECTIVE WORK ON THE REMODELING
AND LATER REPAIR OF THE SHIP, HASTY AND IMPROPER PREPARATIONS FOR A
HAZARDOUS SEA VOYAGE AND UTILIZATION OF THE SHIP IN A SERVICE FOR WHICH
SHE WAS NOT FITTED AND IN AN UNSEAWORTH CONDITION." 

(3) THE TRUSTEE'S REPORT.  THIS MERELY STATED A FEW FACTS RELATING
TO THE BREAKDOWN OF THE CARIB QUEEN ON HER MAIDEN VOYAGE, AND THE
EXPENSES INCURRED IN CONNECTION WITH THE CARIB QUEEN. 

(4) THE SEC'S SPECIFICATIONS IN SUPPORT OF THE OBJECTIONS TO THE M-S
CLAIMS.  THIS WAS A REPORT OF THE SEC'S INDEPENDENT INVESTIGATION OF
THE M-S CLAIMS.  PIT SET OUT IN SOME DETAIL THE FACTS SUPPORTING ITS
CONTENTION THAT TMT HAD GOOD DEFENSES OR SETOFFS BECAUSE "M-S (A) DID
NOT PROPERLY CONVERT THE VESSEL; (B) DID NOT COMPLY WITH THE TERMS OF
THE CONTRACT; (C) DID NOT PROPERLY REPAIR THE VESSEL; AND (D) PERFORMED
CERTAIN WORK FOR AND FURNISHED CERTAIN MATERIALS TO TMT, WITH NO
AGREEMENT AS TO PRICE; M-S HAS FAILED TO ESTABLISH THE VALUE OF SUCH
WORK AND MATERIALS." 

(5) THE M-S ANSWER TO THESE SPECIFICATIONS.  THIS WAS PRINICIPALLY A
FORMAL DOCUMENT AND CONTAINED NO ADDITIONAL FACTS OR ARGUMENTS.  IT
ADMITTED THAT THE CARIB QUEEN WAS SUFFERING CONSTRUCTION DEFICIENCIES
WHEN DELIVERED TO TMT AND THAT THERE WAS A BOILER FAILURE ON THE FIRST
VOYAGE, BUT DENIED LIABILITY. 

(6) THE MOTION FOR ALLOWANCE OF THE CLAIM FILED ON BEHALF OF THE
TRUSTEE.  THIS SUMMARIZED THE PROCEEDINGS RELATING TO THE M-S CLAIMS. 
NOTING THAT THE SEC HAD FILED DETAILED SPECIFICATIONS OF ITS
OBJECTIONS, AND THAT THE SPECIAL MASTER APPOINTED BY THE COURT HAD HELD
NO HEARINGS, IT STATED THAT THE TRUSTEE AND HIS ATTORNEYS HAD EXAMINED
THE DOCUMENTS RELATING TO THE M-S CLAIMS.  THE MOTION STATED THAT THE
TRUSTEE HAD TRIED UNSUCCESSFULLY TO GET M-S TO REDUCE ITS CLAIMS, THAT
THE POSSIBILITY OF RECOVERING THROUGH LITIGATION WAS REMOTE, AND THAT
LITIGATION WOULD CAUSE UNNECESSARY DELAY.  THESE CONCLUSIONS WERE
NEITHER EXPANDED UPON NOR EXPLAINED. 

(7) OBJECTIONS OF THE UNITED STATES TO THE ABOVE MOTION.  THE UNITED
STATES OPPOSED THE M-S CLAIMS ON THE GROUNDS THAT NONE OF THEM WERE
ENTITLED TO SECURED STATUS.  THEY HAD ARISEN MORE THAN A YEAR PRIOR TO
THE BANKRUPTCY PROCEEDINGS, AND CLAIMS FOR RECONSTRUCTING VESSELS DO
NOT GIVE RISE TO MARITIME LIENS. 

(8) THE TRANSCRIPT OF THE HEARINGS HELD ON THE MOTION FOR ALLOWANCE
OF THE CLAIMS.  THE TRANSCRIPT OF THIS PORTION OF THE HEARING OCCUPIES
FIVE PAGES.  MOST OF IT WAS DEVOTED TO THE QUESTION OF HOW MUCH TIME
THE COMMITTEE WOULD BE ALLOWED FOR FILING A MEMORANDUM OBJECTING TO THE
PROPOSED COMPROMISE.  THE COURT WAS TOLD THAT THE TRUSTEE AND HIS
LAWYERS HAD LOOKED AT THE RELEVANT PAPERS, THAT THE POSSIBILITY OF
RECOVERY WAS REMOTE, AND THAT LITIGATION WOULD CAUSE UNNECESSARY
DELAY.  NO FACTS OR ARGUMENTS TO SUPPORT THESE CONCLUSIONS WERE
PRESENTED.  COUNSEL FOR THE COMMITTEE OBJECTED THAT THIS WAS NOT A
REPORT BUT A BARE STATEMENT OF CONCLUSION.  THE COURT INDICATED THAT
SOMEONE HAD BEEN AT FAULT OVER THE BOILER BREAKDOWN. 

(9) THE COMMITTEE'S SPECIFICATION OF OBJECTIONS TO THE M-S CLAIMS. 
THIS 35-PAGE REPORT, 22 PAGES OF WHICH ARE DEVOTED TO THE CARIB QUEEN
CONTRACT, WAS THE RESULT OF AN INDEPENDENT EXAMINATION CONDUCTED BY THE
COMMITTEE INTO THE M-S CLAIMS.  THE COMMITTEE CHARGED M-S WITH FAULTY
DESIGN, CONSTRUCTION, AND REPAIR OF THE CARIB QUEEN.  WITH REGARD TO
TWO OTHER SHIPS ON WHICH M-S WORKED FOR TMT, THE COMMITTEE CHARGED M-S
WITH RESPONSIBILITY FOR THE SWAMPING OF ONE ON ITS TRIAL TRIP, AND WITH
FAILING TO GET COAST GUARD APPROVAL OF THE OTHER.  THE COMMITTEE ALSO
CLAIMED THAT THE MARITIME LIENS ASSERTED BY M-S HAD BEEN REDUCED BY
PAYMENTS ON ACCOUNT, AND THAT THE ORIGINAL TMT MANAGEMENT, M-S, AND
ABRAMS AND SHAFFER HAD WORKED TOGETHER IN A COLLUSIVE RELATIONSHIP
DESIGNED TO MAKE LARGE PROFITS BY SELLING CHEAPLY PURCHASED STOCK TO
THE PUBLIC AT INFLATED VALUES.  SOME IDEA OF THE FACTUAL PARTICULARITY
OF THE COMMITTEE'S OBJECTIONS IS PROVIDED BY THE ABBREVIATED
SUBHEADINGS OF THEIR CHARGES AGAINST M-S IN CONNECTION WITH THE CARIB
QUEEN.  THE COMMITTEE STATED THAT TMT HAD CAUSES OF ACTION GROWING OUT
OF THE FACT THAT M-S (A) FAILED TO SECURE PROPER CERTIFICATES OF WORK
COMPLETION AFFECTING THE CLASSIFICATION AND RATING OF THE VESSEL, (B)
FAILED TO FIT RIVETED CRACK-ARRESTING SEAMS, (C) FAILED TO PRODUCE A
VESSEL OF3,050 SHAFTHORSEPOWER PER SHAFT, PROPELLER SPEED OF 216
R.P.M., AND SPEED IN SERVICE OF 15 1/2 KNOTS, (D) FAILED TO PRODUCE A
SHIP OF HIGH ENOUGH CLASSIFICATION AND RATING, (E) FAILED TO CLEAN THE
BOILERS CHEMICALLY, (F) WRONGLY ASSUMED THAT THE BOILERS HAD BEEN
PROPERLY PROTECTED UP TO THE TIME OF CONVERSION, (G) FAILED TO USE
DISTILLED WATER IN ITS PRELIMINARY RUNNING OF THE BOILERS, (H)
IMPROPERLY CONNECTED THE PIPING, (I) INSTALLED INCORRECT BAFFLE PLATES,
(J) FAILED TO CLEAN THE BOILERS ADEQUATELY WHEN PERFORMING THE REPAIR
WORK, (K) FAILED TO INSTALL THE VENTILATING SYSTEM PROPERLY, (L)
INSTALLED AN INADEQUATE AND INAPPROPRIATE EVAPORATOR, (M) FAILED TO PUT
THE FEED WATER REGULATOR AND THE FEED PUMP GOVERNOR INTO PROPER WORKING
ORDER, (N) FAILED TO INSTALL A BOILER COMPOUND INJECTOR PUMP, (O)
FAILED TO PROVIDE EQUIPMENT FOR COPING WITH THE EXCESSIVE OXYGEN
CONTENT OF THE WATER IN THE SYSTEM, AND (P) WAS RESPONSIBLE FOR
DEFICIENCIES IN THE ELECTRICAL SYSTEM.  IN ADDITION, THE COMMITTEE
STATED THAT M-S WAS IMPROPERLY CLAIMING FOR REPAIR WORK DONE UNDER ITS
GUARANTEE OBLIGATION, AND THAT M-S HAD INCLUDED CLAIMS FOR WORK DONE AS
TO WHICH NO AMOUNT HAD EVER BEEN AGREED UPON. 

(10) THE STATEMENT BY THE SEC SUPPORTING THE COMMITTEE'S
SPECIFICATION OF OBJECTIONS.  THE SEC, WHILE NOT NECESSARILY AGREEING
WITH ALL THE ALLEGATIONS AND CONTENTIONS OF THE COMMITTEE, FELT THAT
THE COMMITTEE HAD DEMONSTRATED THAT M-S SHOULD BE REQUIRED TO PROVE ITS
CLAIMS AT A JUDICIAL HEARING. 

IN ADDITION TO THESE MATTERS OF RECORD, RESPONDENT REFERS TO SEVERAL
MATTERS NOT IN THE RECORD, WHICH ARE SAID TO SUPPORT THE PROPRIETY OF
ACCEPTING THE COMPROMISES.  MATTERS NOT IN THE RECORD AND NOT PROPERLY
THE SUBJECT OF JUDICIAL NOTICE CANNOT FORM THE BASIS OF JUDICIAL
CONFIRMATION OF A PLAN OF REORGANIZATION.  THEY ARE EQUALLY UNAVAILING
ON REVIEW. 

/20/  FURTHER ON THE SUBJECT OF VALUATION, SEE 2 J. BONBRIGHT,
VALUATION OF PROPERTY 880-881 (1937); 6A COLLIER, BANKRUPTCY PARAS.
10.13 AND 11.05 (14TH ED. 1965); H. GUTHMANN & H. DOUGALL, CORPORATE
FINANCIAL POLICY 656-657 (4TH ED. 1962).  SEE ALSO FRANK, EPITHETICAL
JURISPRUDENCE AND THE WORK OF THE SECURITIES AND EXCHANGE COMMISSION IN
THE ADMINISTRATION OF CHAPTER X OF THE BANKRUPTCY ACT, 18
N.Y.U.L.Q.REV.  317, 342, N. 68 (1941):  "VALUE IS THE PRESENT WORTH OF
FUTURE ANTICIPATED EARNINGS.  IT IS NOT DIRECTLY DEPENDENT ON PAST
EARNINGS; THESE LATTER ARE IMPORTANT ONLY AS A GUIDE IN THE PREDICTION
OF FUTURE EARNINGS." 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAND, WHOM MR. JUSTICE STEWART AND MR. JUSTICE FORTAS
JOIN, DISSENTING. 

IN MY OPINION, THE ONLY QUESTION WHICH COULD BE THOUGHT EVEN
REMOTELY TO JUSTIFY THE PRESENCE OF THIS CASE IN THIS COURT IS WHETHER
THE TRUSTEE, BY VIRTUE OF HIS OFFICE, WAS AS A MATTER OF LAW
DISQUALIFIED FROM BEING SELECTED AS PRESIDENT OF THE REORGANIZED
COMPANY.  THE COURT, HOWEVER, DOES NOT DECIDE THAT QUESTION.  THE
REVIEW OF THE MASSIVE RECORD IN THESE REORGANIZATION PROCEEDINGS, WHICH
HAVE BEEN IN THE COURTS FOR OVER 10 YEARS AND ON SIX OCCASIONS BEFORE
THE COURT OF APPEALS AT VARIOUS STAGES, IS NOT IN MY VIEW AN
APPROPRIATE TASK FOR THIS COURT.  BELIEVING THAT THIS DECISION BODES
LITTLE BUT FURTHER DELAY IN BRINGING THIS PROTRACTED PROCEEDING TO A
CONCLUSION, I FEEL JUSTIFIED IN VOTING TO DISMISS THE WRIT AS
IMPROVIDENTLY GRANTED, DESPITE THE FACT THAT THE CASE WAS BROUGHT HERE
ON AN UNRESTRICTED WRIT.  SINCE THE COURT DOES NOT REACH THE
"DISQUALIFICATION" ISSUE, I CONSIDER IT INAPPROPRIATE FOR ME, AS AN
INDIVIDUAL JUSTICE, TO EXPRESS MY OWN VIEWS UPON IT. 

IRWIN L. LANGBEIN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS IRMA S. MASON. 

WILLIAM P. SIMMONS, JR., ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENT ANDERSON.  M. JAMES SPITZER ARGUED THE CAUSE FOR RESPONDENTS
SHAFFER ET AL. UITH HIM ON THE BRIEF WERE RONALD J. OFFENKRANTZ AND
JACKSON L. PETERS. 

DAVID FERBER, BY SPECIAL LEAVE OF COURT, ARGUED THE CAUSE FOR
RESPONDENT SECURITIES AND EXCHANGE COMMISSION.  WITH HIM ON THE BRIEFS
WERE SOLICITOR GENERAL GRISWOLD, RALPH S. SPRITZER, DANIEL M. FRIEDMAN,
PHILIP A. LOOMIS, JR., AND PAUL GONSON. 
..END :















ALITALIA-LINEE AEREE ITALIANE V. LISI, 390 U.S. 455 


       ALITALIA-LINEE AEREE ITALIANE, S.P.A. V. LISI ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SECOND CIRCUIT. 

        NO. 70.  ARGUED MARCH 11, 1968.-- DECIDED MARCH 25, 1968. 


370 F.2D 508, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENTS ARE AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

GEORGE N. TOMPKINS, JR., ARGUED THE CAUSE FOR PETITIONER.  WITH HIM
ON THE BRIEFS WAS AUSTIN P. MAGNER. 

THEODORE E. WOLCOTT ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 

BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY EDWIN
LONGCOPE FOR THE UNITED KINGDOM OF GREAT BRITIAN AND NORTHERN IRELAND;
BY ROBERT MACCRATE FOR CANADA; BY ALFRED C. CLAPP FOR THE REPUBLIC OF
ITALY; AND BY JOHN E. STEPHEN, JOSEPH F. HEALY, JR., HAROLD L. WARNER,
JR., CARL S. ROWE AND PAUL G. PENNOYER, JR., FOR THE AIR TRANSPORT
ASSOCIATION OF AMERICA ET AL. 

BRIEFS OF AMICI CURIAE, URGINA AFFIRMANCE, WERE FILED BY SAMUEL
LANGERMAN AND WALTER H. BECKHAM, JR., FOR THE AMERICAN TRIAL LAWYERS
ASSOCIATION, BY STUART M. SPEISER FOR ARNOLD HOLTZMAN, AND BY LEE S.
KREINDLER FOR BATES BLOCK. 

BRIEFS OF AMICI CURIAE WERE FILED BY SOLICITOR GENERAL GRISWOLD,
MORTON HOLLANDER AND JOSEPH B. GOLDMAN FOR THE CIVIL AERONAUTICS BOARD,
AND BY WILLIAM A. JENNINGS FOR THE AIRLINE PASSENGERS ASSOCIATION. 
..END :











ANDERSON V. JOHNSON, 390 U.S. 456 


       ANDERSON V. JOHNSON, WARDEN. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT. 

        NO. 700.  ARGUED MARCH 6, 1968.-- DECIDED MARCH 25, 1968. 


371 F.2D 84, JUDGMENT REMAINS IN EFFECT. 

PER CURIAM. 

FOUR MEMBERS OF THE COURT WOULD REVERSE.  FOUR MEMBERS OF THE COURT
WOULD DISMISS THE WRITE AS IMPROVIDENTLY GRANTED.  CONSEQUENTLY, THE
JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
REMAINS IN EFFECT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

J. BRAD REED ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 

ED R. DAVIES ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WAS GEORGE F. MCCANLESS, ATTORNEY GENERAL OF TENNESSEE. 
..END :



ORTEGA V. MICHIGAN, 390 U.S. 457 


       ORTEGA V. MICHIGAN. 

        APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

        NO. 1163, MISC.  DECIDED MARCH 25, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

..END :















REED ENTERPRISES V. CLARK, 390 U.S. 457 


       REED ENTERPRISES ET AL. V. CLARK, ATTORNEY GENERAL ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF COLUMBIA. 

        NO. 1092.  DECIDED MARCH 25, 1968. 


278 F.SUPP.  372, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

STANLEY FLEISHMAN, DAVID REIN AND SAM ROSENWEIN FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON AND
PHILIP R. MONAHAN FOR APPELLEES. 
..END :
























LAHMAN V. W. E. GOULD & CO., 390 U.S. 458 


       LAHMAN, ADMINISTRATRIX, V. W. E. GOULD & CO. ET AL.

        APPEAL FROM THE APPELLATE COURT OF ILLINOIS, FIRST

           DISTRICT. 

        NO. 1103.  DECIDED MARCH 25, 1968. 


82 ILL.APP.2D 220, 226 N.E.2D 443, APPEAL DISMISSED AND CERTIORARI
DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

RAYMOND HARKRIDER FOR APPELLANT. 

CALVIN P. SAWYIER FOR APPELLEES W. E. GOULD & CO. ET AL.
..END :







FERIS V. BALCOM, 390 U.S. 458 


       FERIS ET AL., DBA FERIS BROS. TRUCKING CO. V. BALCOM ET AL.,

           DBA D & L LOGGING CO., ET AL.

   APPEAL FROM THE SUPREME COURT OF OREGON. 

        NO. 1101.  DECIDED MARCH 25, 1968. 


-- ORE.-- , 432 P.2D 684, APPEAL DISMISSED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

ROBERT W. GILLEY FOR APPELLANTS. 
..END :











FTC V. FRED MEYER, INC., 390 U.S. 341 


       FEDERAL TRADE COMMISSION V. FRED MEYER, INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           NINTH CIRCUIT. 

        NO. 27.  ARGUED NOVEMBER 6, 1967.-- DECIDED MARCH 18,
1968. 


THE FEDERAL TRADE COMMISSION (FTC) RULED THAT RESPONDENTS, THE
CORPORATE OWNER OF A CHAIN OF SUPERMARKETS (MEYER) AND TWO OF ITS
OFFICERS, HAD UNLAWFULLY INDUCED SUPPLIERS TO ENGAGE IN DISCRIMINATORY
PRICING AND SALES PROMOTION ACTIVITIES PROHIBITED BY SECS. 2(A) AND
2(D) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT.  THE
FTC HELD THAT SEC. 2(D) PROHIBITS A SUPPLIER FROM GRANTING PROMOTIONAL
ALLOWANCES TO A DIRECT-BUYING RETAILER LIKE MEYER, UNLESS THE
ALLOWANCES ARE ALSO MADE AVAILABLE TO WHOLESALERS WHO PURCHASE FROM THE
SUPPLIER AND RESELL TO THE DIRECT-BUYING RETAILER'S COMPETITORS.  THE
COURT OF APPEALS ADOPTED RESPONDETS' VIEW THAT THE STATUTORY
REQUIREMENT OF PROPORTIONAL EQUALITY AMONG "CUSTOMERS COMPETING IN THE
DISTRIBUTION" OF PRODUCTS CONCERNED COMPETITION AT THE SAME FUNCTIONAL
LEVEL OF DISTRIBUTION, WHICH DID NOT INCLUDE COMPETITION BETWEEN DIRECT
BUYING RETAILERS AND WHOLESALERS, AND THAT RETAILERS COMPETING WITH
MEYER WERE NOT CUSTOMERS OF THE SUPPLIERS BUT WERE CUSTOMERS OF THE
WHOLESALERS.  THE COURT SET ASIDE THAT PORTION OF THE FTC ORDER WHICH
BARRED RESPONDENTS FROM INDUCING SUPPLIERS TO GRANT THEM PROMOTIONAL
ALLOWANCES NOT AVAILABLE TO "CUSTOMERS WHO RESELL TO PURCHASERS WHO
COMPETE WITH RESPONDENTS IN THE RESALE OF SUCH SUPPLIER'S PRODUCTS." 
HELD:  ON THE FACTS OF THIS CASE, SEC. 2(D) REACHES ONLY DISCRIMINATION
BETWEEN CUSTOMERS COMPETING FOR RESALES AT THE SAME FUNCTIONAL LEVEL. 
PP. 348-358. 

(A) THE ACT DOES NOT MANDATE PROPORTIONAL EQUALITY BETWEEN THE
DIRECT-BUYING RETAILER, MEYER, AND THE WHOLESALERS.  PP. 348-349, 355
357. 

(B) "CUSTOMER" IN SEC. 2(D) INCLUDES A RETAILER WHO BUYS THROUGH
WHOLESALERS AND COMPETES WITH A DIRECT-BUYING RETAILER IN THE RESALE OF
THE SUPPLIER'S PRODUCTS.  PP. 348-352. 

(C) THE FTC FOUND THAT MEYER COMPETED IN THE RESALE OF CERTAIN
SUPPLIERS' PRODUCTS WITH OTHER RETAILERS IN THE AREA WHO PURCHASED THE
PRODUCTS THROUGH WHOLESALERS, AND THE COURT OF APPEALS DID NOT DISTRUB
THIS FINDING.  P. 354. 

(D) SINCE IN THIS CASE THE DIRECT IMPACT OF THE DISCRIMINATORY
PROMOTIONAL ALLOWANCES IF FELT BY THE DISFAVORED RETAILERS, THE MOST
REASONABLE CONSTRUCTION OF SEC. 2(D) IS ONE WHICH PLACES ON THE
SUPPLIER THE RESPONSIBILITY FOR MAKING PROMOTIONAL ALLOWANCES AVAILABLE
TO THOSE RESELLERS WHO COMPETE DIRECTLY WITH THE FAVORED BUYER.  P.
357. 

(E) A SUPPLIER MAY, CONSISTENTLY WITH THE OTHER PROVISIONS OF THE
ANTITRUST LAWS, UTILIZE HIS WHOLESALERS TO DISTRIBUTE PAYMENTS OR
ADMINISTER PROMOTIONAL PROGRAMS, AS LONG AS THE SUPPLIER ASSUMES
RESPONSIBILITY, UNDER THE FTC'S RULES, FOR SEEING THAT THE ALLOWANCES
ARE MADE AVAILABLE TO ALL WHO COMPETE IN THE RESALE OF HIS PRODUCTS. 
P. 358. 

359 F.2D 351, REVERSED IN PART AND REMANDED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL TRADE COMMISSION, AFTER EXTENSIVE PROCEEDINGS, RULED
THAT RESPONDENTS, THE CORPORATE OWNER OF A CHAIN OF SUPERMARKETS AND
TWO OF ITS OFFICERS, HAD UNLAWFULLY INDUCED CERTAIN SUPPLIERS TO ENGAGE
IN DISCRIMINATORY PRICING AND SALES PROMOTIONAL ACTIVITIES PROHIBITED
BY SECS. 2(A) AND 2(D) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON
PATMAN ACT.  /1/  63 F.T.C.-- (1963).  THE COURT OF APPEALS FOR THE
NINTH CIRCUIT DISAGREED WITH THE COMMISSION'S CONSTRUCTION OF SEC. 2(D)
AND REVERSED IN PART ITS RULING THAT THE SECTION HAD BEEN VIOLATED. 
359 F.2D 351 (1966).  WE GRANTED CERTIORARI, 386 U.S. 907 (1967),
BECAUSE THE CASE PRESENTS IMPORTANT QUESTIONS CONCERNING THE SCOPE OF A
KEY PROVISION OF THE ROBINSON-PATMAN ACT. 

        I. 

TO GRANT ADVERTISING OR OTHER SALES PROMOTIONAL ALLOWANCES TO ONE
"CUSTOMER" WHO RESELLS THE SUPPLIER'S "PRODUCTS OR COMMODITIES" UNLESS
THE ALLOWANCES ARE "AVAILABLE ON PROPORTIONALLY EQUAL TERMS TO ALL
OTHER CUSTOMERS COMPETING IN THE DISTRIBUTION OF SUCH PRODUCTS OR
COMMODITIES."  /2/  ALTHOUGH WE HAVE LIMITED OUR REVIEW OF THIS CASE TO
ONE ASPECT OF THE ALLEGED SEC 2(D) VIOLATIONS, /3/  FULL UNDERSTANDING
OF THE ISSUES REQUIRES A BRIEF EXPOSITION OF THE FACTS FROM WHICH THE
COMMISSION CONCLUDED THAT RESPONDENTS HAD INCUDED VIOLATIONS OF BOTH
SECS. 2(A) AND 2(D).  THE RELEVANT FACTS FOUND BY THE COMMISSION WERE
NOT DISTURBED BY THE COURT OF APPEALS. 

RESPONDENT FRED MEYER, INC., OPERATES A CHAIN OF 13 SUPERMARKETS IN
THE PORTLAND, OREGON, AREA WHICH ENGAGE IN THE RETAIL SALE OF
GROCERIES, DRUGS, VARIETY ITESM, AND A LIMITED LINE OF CLOTHING.  IN
1957 MEYER'S SALES EXCEEDED $40,000,000.  ACCORDING TO ITS 1960
PROSPECTUS, IT MADE ONE-FOURTH OF THE RETAIL FOOD SALES IN THE PORTLAND
AREA AND WAS THE SECOND LARGEST SELLER OF ALL GOODS IN THAT AREA. 
SINCE 1936 MEYER HAS CONDUCTED ANNUALLY A FOUR-WEEK PROMOTIONAL
CAMPAIGN IN ITS STORES BASED ON THE DISTRIBUTION OF COUPON BOOKS TO
CONSUMERS.  THE BOOKS USUALLY CONTAIN 72 PAGES, EACH PAGE FEATURING A
SINGLE PRODUCT BEING SOLD BY MEYER AT A REDUCED PRICE.  THE CONSUMER
BUYS THE BOOK FOR A NOMINAL SUM OF 10[ AND MUST SURRENDER THE
APPROPRIATE COUPON WHEN MAKING HIS PURCHASE OF GOODS.  A COUPON OFTEN
REPRESENTS A REDUCTION OF ONE-THIRD OR MORE FROM MEYER'S REGULAR PRICE
FOR THE FEATURED ITEM, AND THE COVER OF THE 1957 BOOK STATED THAT THE
USE OF ALL 72 COUPONS WOULD RESULT IN TOTAL SAVINGS OF MORE THAN $54. 
THE PROMOTIONAL CAMPAIGN IS HIGHLY SUCCESSFUL.  MEYER SOLD 138,700
BOOKS IN 1957 AND 121,270 IN 1958.  ASDIE FROM THE NOMINAL 10[ PAID BY
CONSUMERS FOR THE COUPON BOOKS, MEYER FINANCES THE PROMOTION BY
CHARGING THE SUPPLIER OF EACH FEATURED PRODUCT A FEE OF AT LEAST $350
FOR EACH COUPON-PAGE ADVERTISING HIS PRODUCT.  /4/  SOME PARTICIPATING
SUPPLIERS FURTHER UNDERWRITE THE PROMOTION BY GIVING MEYER PRICE
REDUCTIONS ON ITS PURCHASES OF FEATURED ITEMS, BY REPLACING AT NO COST
A PERCENTAGE OF THE GOODS SOLD BY MEYER DURING THE CAMPAIGN, OR BY
REDEEMING COUPONS IN CASH AT AN AGREED RATE. 

THE COMMISSION CONCLUDED THAT THIS PROMOTIONAL SCHEME, AS CONDUCTED
IN THE YEARS 1956 THROUGH 1958, VIOLATED SECS. 2(D) AND 2(A) IN THE
FOLLOWING RESPECTS:  FIRST, THE $350 PAID TO MEYER BY EACH OF FOUR
SUPPLIERS PARTICIPATING IN THE CAMPAIGNS REPRESENTED PROMOTIONAL
ALLOWANCES PAID IN VIOLATION OF SEC. 2(D) BECAUSE SIMILAR ALLOWANCES
WERE NOT MADE AVAILABLE ON PROPORTIONALLY EQUAL TERMS TO COMPETITING
CUSTOMERS.  SECOND, THE ADDITIONAL VALUE GIVEN MEYER BY THESE SUPPLIERS
IN THE FORM OF DISCOUNTS, FREE REPLACEMENTS OF GOODS SOLD AND COUPON
REDEMPTIONS AMOUNTED TO PRICE DISCRIMINATION PROHIBITED BY SEC. 2(A). 
/5/  THE COMMISSION HELD THAT BY INDUCING THE SUPPLIERS TO DISCRIMINATE
IN PRICE, RESPONDENTS HAD VIOLATED SEC. 2(F) OF THE ACT, /6/  AND THAT
BY INDUCING THEM TO GRANT DISCRIMINATORY PROMOTIONAL ALLOWANCES,
RESPONDENTS HAD ENGAGED IN AN UNFAIR METHOD OF COMPETITION IN VIOLATION
OF SEC 5(A) OF THE FEDERAL TRADE COMMISSION ACT.  /7/ 

BOTH BEFORE THE COMMISSION AND IN THE COURT OF APPEALS, RESPONDENTS
ARGUED THAT IT WAS NOT ESTABLISHED THAT TWO PARTICIPATING SUPPLIERS,
TRI-VALLEY PACKING ASSOCIATION AND IDAHO CANNING COMPANY, HAD VIOLATED
SEC. 2(D).  MEYER PURCHASED DIRECTLY FROM BOTH OF THESE SUPPLIERS.  TRI
VALLEY PARTICIPATED IN THE 1957 PROMOTION BY PAYING MEYER $350 FOR A
COUPON-PAGE FEATURING TRI-VALLEY'S BRAND OF CANNED PEACHES BY REPLACING
IN MERCHANDISE EVERY THIRD CAN SOLD BY MEYER ON THE COUPON'S OFFER OF
THREE CANS FOR THE PRICE OF TWO.  THE COMMISSION FOUND THAT TWO
WHOLESALERS, HUDSON HOUSE AND WADHAMS & CO., BOTH OF WHICH RESOLD TO
MEYER'S RETAIL COMPETITORS, HAD BEEN DISFAVORED IN THESE TRANSACTIONS
IN THAT HUDSON HOUSE HAD PURCHASED CANNED PEACHES FROM TRI-VALLEY AND
BOTH HUDSON HOUSE AND WADHAMS HAD PURCHASED CANNED CORN FROM IDAHO
CANNING, BUT NEITHER OF THE TWO WHOLESLAERS HAD BEEN ACCORDED
PROMOTIONAL ALLOWANCES COMPARABLE TO THOSE RECEIVED BY MEYER. 
RESPONDENTS ARUGED THAT, PURELY AS A MATTER OF STATUTORY CONSTRUCTION,
TRI-VALLEY AND IDAHO CANNING COULD NOT HAVE VIOLATED THE REQUIREMENT OF
PROPORTIONAL EQUALITY AMONG "CUSTOMERS COMPETING IN THE DISTRIBUTION"
OF THEIR PRODUCTS BECAUSE (1) MEYER, A RETAILER, WAS NOT "COMPETING" IN
THE DISTRIBUTION OF CANNED CORN AND PEACHES WITH THE DISFAVORED
WHOLESALERS, HUDSON HOUSE AND WADHAMS, AND (2) THE RETAILERS FOUND BY
THE COMMISSION TO BE COMPETING WITH MEYER IN THE RESALE OF THESE
PRODUCTS WERE NOT "CUSTOMERS" OF TRI-VALLEY AND IDAHO CANNING BUT WERE
CUSTOMERS OF HUDSON HOUSE AND WADHAMS. 

THE COMMISSION REJECTED THIS READING OF SEC. 2(D), NOTING THAT, IF
RESPONDENTS' VIEW PREVAILED, A RETAILER BUYING FROM A WHOLESALER AND
HAVING NO DIRECT DEALINGS WITH HIS SUPPLIER WOULD RECEIVE NO PROTECTION
AGAINST DISCRIMINATORY PROMOTIONAL ALLOWANCES GIVEN HIS COMPETITOR WHO
PURCHASED DIRECTLY FROM THE SUPPLIER.  THE COMMISSION HELD THAT SEC.
2(D) PROHIBITS A SUPPLIER FROM GRANTING PROMOTIONAL ALLOWANCES TO A
DIRECT-BUYING RETAILER, SUCH AS MEYER, UNLESS THE ALLOWANCES ARE ALSO
MADE AVAILABLE TO WHOLESALERS WHO PURCHASE FROM THE SUPPLIER AND RESELL
TO THE DIRECT-BUYING RETAILER'S COMPETITORS.  ACCORDINGLY, THE
COMMISSION'S CEASE-AND-DESIST ORDER INCLUDED A PROVISION BARRING
RESPONDENTS FROM INDUCING SUPPLIERS TO GRANT THEM PROMOTIONAL
ALLOWANCES NOT AVAILABLE TO "CUSTOMERS WHO RESLL TO PURCHASERS WHO
COMPETE WITH RESPONDENTS IN THE RESALE OF SUCH SUPPLIER'S PRODUCTS." 
63 F.T.C.,AT -- .  ONE COMMISSIONER, WHILE AGREEING WITH THE MAJORITY
THAT RESPONDENTS HAD INDUCED TRI-VALLEY AND IDAHO CANNING TO VIOLATE
SEC. 2(D), DISSENTING INPART ON THE GROUND THAT THE ORDER SHOULD HAVE
REQUIRED THE PROMOTIONAL ALLOWANCES TO BE MADE AVAILABLE TO THE
RETAILERS COMPETING WITH MEYER RATHER THAN TO WHOLESALERS WHO RESOLD TO
THEM.  /8/  THUS, IN HIS VIEW, THE COMPETING RETAILERS WERE "CUSTOMERS"
OF TRI-VALLEY AND IDAHO CANNING WITHIN THE MEANING OF THE STATUTE.  THE
COURT OF APPEALS ADOPTED THE INTERPRETATION OF SEC. 2(D) URGED BY THE
RESPONDENTS.  CONSEQUENTLY, IT SET ASIDE THE PORTION OF THE
COMMISSION'S ORDER SET OUT ABOVE. 

WE AGREE WITH THE COMMISSION THAT THE PROSCRIPTION OF SEC. 2(D)
REACHES THE KIND OF DISCRIMINATORY PROMOTIONAL ALLOWANCES GRANTED MEYER
BY TRI-VALLEY AND IDAHO CANNING.  THEREFORE, WE REVERSE THE JUDGMENT OF
THE COURT OF APPEALS ON THIS POINT.  HOWEVER, BECAUSE WE HAVE CONCLUDED
THAT MEYER'S RETAIL COMPETITORS, RATHER THAN THE TWO WHOLESALERS, WERE
COMPETING CUSTOMERS UNDER THE STATUTE, WE ALSO REMAND THE CASE FOR
APPROPRIATE MODIFICATION OF THE COMMISSION'S ORDER.  WE DEAL FIRST WITH
RESPONDENTS' ARGUEMENTS, SECOND WITH THE OPINION OF THE COURT OF
APPEALS, AND THIRD WITH THE COMMISSION'S ORDER. 

II. 

RESPONDENTS PRESS UPON US A VIEW OF SEC. 2(D) WHICH LEAVES RETAILERS
WHO BUY FROM WHOLESALERS FOR THE MOST PART UNPROTECTED FROM
DISCRIMINATORY PROMOTIONAL ALLOWANCES GRANTED THEIR DIRECT-BUYING
COMPETITORS.  WE ARE TOLD THAT SEC. 2(D) IN SPECIFIC TERMS REQUIRES
THIS RESULT.  TO BENEFIT FROM THE STATUTE'S REQUIREMENT OF PROPORTIONAL
EQUALITY, IT IS URGED, A BUYER MUST BE A "COMPETING CUSTOMER" WITHIN
THE NARROWEST SENSE OF THAT PHRASE.  THUS, THE WHOLESALERS IN THIS CASE
ARE NOT COMPETING CUSTOMERS BECAUSE THEY DO NOT COMPETE WITH MEYER, AND
THE RETAILERS WHO DO COMPETE WITH MEYER IN THE RESALE OF THE SUPPLIERS'
PRODUCTS ARE OUTSIDE THE PROTECTION OF SEC. 2(D) BECAUSE THEY ARE NOT
CUSTOMERS OF THE SUPPLIERS.  FOR REASONS STATED BELOW, WE AGREE WITH
RESPONDENTS THAT, ON THE FACTS OF THIS CASE, SEC. 2(D) REACHES ONLY
DISCRIMINATION BETWEEN CUSTOMERS COMPETING FOR RESALES AT THE SAME
FUNCTIONAL LEVEL AND, THEREFORE, DOES NOT MANDATE PROPORTIONAL EQUALITY
BETWEEN MEYER AND THE TWO WHOLESALERS.  /9/  BUT WE CANNOT ACCEPT THE
SECOND HALF OF THIS ARGUMENT, FOR IT RESTS ON A NARROW DEFINITION OF
"CUSTOMER" WHICH BECOMES WHOLLY UNTENTABLE WHEN VIEWED IN LIGHT OF THE
CENTRAL PURPOSE OF SEC. 2(D) AND THE ECONOMIC REALITIES WITH WHICH ITS
FRAMERS WERE CONCERNED. 

CONCEDING THAT THE ROBINSON-PATMAN AMENDMENTS BY NO MEANS REPRESENT
AN EXEMPLAR OF LEGISLATIVE CLARITY, /10/  WE CANNOT, IN THE ABSENCE OF
AN UNMISTAKABLE DIRECTIVE, CONSTRUE THE ACT IN A MANNER WHICH RUNS
COUNTER TO THE BROAD GOALS WHICH CONGRESS INTENDED IT TO EFFECTUATE. 
SEE, E.G., FTC V. SUN OIL CO., 371 U.S. 505, 516-521 (1963); ELIZABETH
ARDEN SALES CORP. V. GUS BLASS CO., 150 F.2D 988, 991-993 (C.A. 8TH
CIR.), CERT. DENIED, 326 U.S. 773 (1945).  WE START WITH THE
PROPOSITION THAT "(THE ROBINSON-PATMAN ACT WAS ENACTED IN 1936 TO CURB
AND PROHIBIT ALL DEVICES BY WHICH LARGE BUYERS GAINED DISCRIMINATORY
PREFERENCES OVER SMALLER ONES BY VIRTUE OF THEIR PURCHASING POWER." 
FTC V. HENRY BROACH & CO., 363 U.S. 166, 168 (1960).  THE ROLE WITHIN
THE STATUTORY SCHEME WHICH CONGRESS INTENDED FOR SEC. 2(D) IS WELL
DOCUMENTED IN THE LEGISLATUVE HISTORY.  AN INVESTIGATION OF CHAIN STORE
BUYING PRACTICES UNDERTAKEN BY THE FEDERAL TRADE COMMISSION, AT
CONGRESS' REQUEST, /11/  HAD INDICATED THAT SEC 2 OF THE CLAYTON ACT
WAS AN INADEQUATE DETERRENT AGAINST OUTRIGHT PRICE DISCRIMINATION. 
/12/  THE INVESTIGATION ALSO REVEALED THAT CERTAIN PRACTICES BY WHICH
LARGE BUYERS INDUCED CONCESSIONS WHICH THEIR SMALLER COMPETITORS COULD
NOT OBTAIN WERE WHOLLY BEYOND THE REACH OF SEC. 2.  /13/  IT IS
SIGNIFICANT THAT CONGRESSIONAL CONCERN HAD FOCUSED ON THE BUYING
PRACTICES OF LARGE RETAILERS, PARTICULARLY THE CHAIN STORES, BECAUSE IT
WAS FELT THAT THEY WERE THREATENING THE CONTINUED EXISTENCE OF THE
INDEPENDENT MERCHANT.  /14/  INDEED, BEFORE CONGRESS ACTED, SOME STATES
HAD ATTEMPTED TO LIMIT THE GROWTH OF RETAIL CHAINS THROUGH EXPRESS
PROHIBITIONS AGAINST FURTHER EXTENSIONS AND THROUGH TAXATION.  /15/ ONE
OF THE PRACTICES DISCLOSED BY THE COMMISSION'S INVESTIGATION WAS THAT
BY WHICH LARGE RETAILERS INDUCED CONCESSIONS FROM SUPPLIERS IN THE FORM
OF ADVERTISING AND OTHER SALES PROMOTIONAL ALLOWANCES.  /16/  THE
DRAFTSMAN OF THE PROVISION WHICH EVENTUALLY EMERGED AS SEC. 2(D)
EXPLAINED THAT, EVEN WHEN SUCH PAYMENTS WERE MADE FOR ACTUAL SALES
PROMOTIONAL SERVICES, THEY WERE A FORM OF INDIRECT PRICE DISCRIMINATION
BECAUSE THE RECIPIENT OF THE ALLOWANCES COULD SHIFT PART OF HIS
ADVERTISING COSTS TO HIS SUPPLIER WHILE HIS DISFAVORED COMPETITOR COULD
NOT.  /17/  THAT CONGRESS ADOPTED THIS VIEW OF THE PRACTICE IT SOUGHT
TO ELIMINATE BY SEC. 2(D) IS DEMONSTRATED BY THE WORDS USED BY THE
SENATE JUDICIARY COMMITTEE IN RECOMMENDING ENACTMENT OF THE SECTION: 

     "STILL ANOTHER FAVORED MEDIUM FOR THE GRANTING OF OPPRESSIVE

  DISCRIMINATIONS IS FOUND IN THE PRACTICE OF LARGE BUYER CUSTOMERS

  TO DEMAND, AND OF THEIR SELLERS TO GRANT, SPECIAL ALLOWANCES IN

  PURPORTED PAYMENT OF ADVERTISING AND OTHER SALES PROMOTIONAL

  SERVICES, WHICH THE CUSTOMER AGREES TO RENDER WITH REFERENCE TO

  THE SELLER'S PRODUCTS, OR SOMETIMES WITH REFERENCE TO HIS

  BUSINESS GENERALLY.  SUCH AN ALLOWANCE BECOMES UNJUST WHEN THE

  SERVICE IS NOT RENDERED, AS AGREED AND PAID FOR, OR WHEN, IF

RENDERED, THE PAYMENT IS GROSSLY IN EXCESS OF ITS VALUE, OR WHEN

  IN ANY CASE THE CUSTOMER IS DERIVING FROM IT EQUAL BENEFIT TO HIS

  OWN BUSINESS AND IS THUS ENABLED TO SHIFT TO HIS VENDOR

  SUBSTANTIAL PORTIONS OF HIS OWN AEVERTISING COST, WHILE HIS

  SMALLER COMPETITOR, UNABLE TO COMMAND SUCH ALLOWANCES, CANNOT DO

  SO."  /18/

CONGRESS CHOSE TO DETER SUCH INDIRECT PRICE DISCRIMINATION BY
PROHIBITING THE GRANTING OF SALES PROMOTIONAL ALLOWANCES TO ONE
CUSTOMER UNLESS ACCORDED ON PROPORTIONALLY EQUAL TERMS TO ALL COMPETING
CUSTOMERS. 

OF COURSE, NEITHER THE COMMITTEE REPORT NOR OTHER PARTS OF THE
LEGISLATIVE HISTORY IN SO MANY WORDS DEFINE "CUSTOMER" TO INCUDE
RETAILERS WHO PURCHASE THROUGH WHOLESALERS AND COMPETE WITH DIRECT
BUYERS IN RESALES.  BUT A NARROWER READING OF SEC. 2(D) WOULD LEAD TO
THE FOLLOWING ANOMALOUS RESULT.  ON THE ONE HAND, DIRECTBUYING
RETAILERS LIKE MEYER, WHO RESELL LARGE QUANTITIES OF THEIR SUPPLIERS'
PRODUCTS AND THEREFORE FIND IT FEASIBLE TO UNDERTAKE THE TRADITIONAL
WHOLESALING FUNCTIONS FOR THEMSELVES, WOULD BE PROTECTED BY THE
PROVISION FROM THE GRANTING OF DISCRIMINATORY PROMOTIONAL ALLOWANCES TO
THEIR DIRECT-BUYING COMPETITORS.  ON THE OTHER HAND, SMALLER RETAILERS
WHOSE ONLY ACCESS TO SUPPLIERS IS THROUGH INDEPENDENT WHOLESALERS WOULD
NOT BE ENTITLED TO THIS PROTECTION.  SUCH A RESULT WOULD BE
DIAMETRICALLY OPPOSED TO CONGRESS' CLEARLY STATED INTENT TO IMPROVE THE
COMPETITIVE POSITION OF SMALL RETALERS BY ELIMINATING WHAT WAS REGARDED
AS AN ABUSIVE FROM OF DISCRIMINATION.  IF WE WERE TO READ "CUSTOMER" AS
EXCLUDING RETAILERS WHO BUY THROUGH WHOLESALERS AND COMPETE WITH DIRECT
BUYERS, WE WOULD FRUSTRATE THE PURPOSE OF SEC. 2(D).  WE EFFECTUATE IT
BY HOLDING THAT THE SECTION INCLUDES SUCH COMPETING RETAILERS WITHIN
THE PROTECTED CLASS. 

III. 

THE COMMISSION DID NOT PRESS IN THE COURT OF APPEALS THE POSITION OF
ONE COMMISSIONER THAT RETAILERS WHO PURCHASED THROUGH HUDSON HOUSE AND
WADHAMS AND COMPETED WITH MEYER IN RESALES WERE CUSTOMERS OF TRI-VALLEY
AND IDAHO CANNING.  CONSEQUENTLY, THAT COURT GAVE ALMOST NO
CONSIDERATION TO THE CONSTRUCTION OF SEC. 2(D) WHICH WE HOLD TO BE THE
PROPER ONE.  CITING ITS PRIOR RULING IN TRI-VALLEY PACKING ASSN. V.
FTC, 329 F.2D 694, 709-710 (C.A. 9TH CIR. 1964), THE COURT MERELY
STATED THAT A SEC. 2(D) VIOLATION COULD NOT BE MADE OUT UNLESS (1) TRI
VALLEY AND IDAHO CANNING HAD IN SOME WAY DEALT DIRECTLY WITH RETAILERS
COMPETING WITH MEYER, AND (2) CANNED PEACHES AND CORN SOLD BY THE TWO
SUPPLIERS COULD BE TRACED THROUGH HUDSON HOUSE AND WADHAMS TO THE
SHELVES OF THE COMPETING RETAILERS.  359 F.2D, AT 359-360, 362-363.  IN
VIEW OF THE COURT OF APPEALS, THESE TWO REQUIREMENTS COMPOSE THE
ELEMENTS OF THE "INDIRECT CUSTOMER"  DOCTRINE UNDER WHICH THE
COMMISSION AND THE COURTS IMPOSE SEC. 2(D) LIABILITY WHEN A SUPPLIER IN
EFFECT SUPPLANTS HIS INTERMEDIATE DISTRIBUTORS IN DEALINGS WITH THOSE
TO WHOM THE DISTRIBUTORS AND FAVORS SOME OF THE DISTRIBUTORS' ACCOUNTS
OVER OTHERS.  SEE AMERICAN NEWS CO. V. FTC, 300 F.2D 104, 109 (C.A. 2D
CIR.), CERT. DENIED, 371 U.S. 824 (1962); K.S. CORP. V. CHEMSTRAND
CORP. 298 F.SUPP.  310, 312-313 (D.C.S.D.N.Y. 1961).  KAY WINDSOR
FROCKS, INC., 51 F.T.C. 89, 95-95 T954); F. ROWE, PRICE DISCRIMINATION
UNDER THE ROBINSON-PATMAN ACT 398-399 (1962), 90 (1964 SUPP.).  WE NEED
NOT AND DO NOT QUESTION THE VALIDITY OF THIS DOCTRINE AS APPLIED TO
PIERCE A SUPPLIER'S UNREALISTIC CLAIM THAT A RESELLER FAVORED BY HIM IS
ACTUALLY THE CUSTOMER OF AN INTERMEDIATE DISTRIBUTOR.  NOR DO WE REACH
THE QUESTION WHETHER A RETAILER MAY SUCCEED IN A PRIVATE ACTION BASED
ON SEC. 2(D) WITHOUT PROVING THAT HE IN FACT RESOLD THE SUPPLIER'S
PRODUCT IN COMPETITION WITH A FAVORED BUYER.  IN THE CASE BEFORE US, IT
IS CONCEDED THAT MEYER WAS A CUSTOMER OF TRI-VALLEY AND IDAHO CANNING. 
MOREOVER, AS INDICATED BY ITS APPROVAL OF THE COMMISSION'S SEC. 2(A)
RULING, THE COURT OF APPEALS DID NOT QUESTION THE COMMISSION'S FINDING
THAT MEYER COMPETED IN THE RESALE OF TRI-VALLEY AND IDAHO CANNING
PRODUCTS WITH RETAILERS WHO PURCHASED THROUGH HUDSON HOUSE AND
WADHAMS.  /19/  GIVEN THESE FINDINGS, IT WAS UNNECESSARY FOR THE
COMMISSION TO RESORT TO THE INDIRECT CUSTOMER DOCTRINE.  WHETHER
SUPPLIERS DEAL DIRECTLY WITH DISFAVORED COMPETITORS OR NOT, THEY CAN,
AND HERE DID, AFFORD A DIRECT BUYER THE KIND OF COMPETITIVE ADVANTAGE
WHICH SEC. 2(D) WAS INTENDED TO ELIMINATE.  IN LIGHT OF OUR HOLDING
THAT "CUSTOMERS" IN SEC. 2(D) INCLUDES RETAILERS WHO BUY THROUGH
WHOLESALERS AND COMPETE WITH A DIRECT BUYER IN THE RESALE OF THE
SUPPLIER'S PRODUCT, THE REQUIREMENT OF DIRECT DEALING BETWEEN THE
SUPPLIER AND DISFAVORED COMPETITORS IMPOSED BY THE COURT OF APPEALS
RESTS ON TOO NARROW A READING OF THE STATUTE.  FURTHER, IN LIGHT OF THE
COMMISSION'S FINDING THAT MEYER COMPETED IN THE RESLE OF THE IDAHO
CANNING AND TRI-VALLEY PRODUCTS WITH OTHER RETAILERS IN THE AREA WHO
PURCHASED THROUGH HUDSON HOUSE AND WADHAMS AND IN LIGHT OF THE FACT
THAT THE COURT OF APPEALS DID NOT DISTURB THIS FINDING, THE COURT
MISAPPREHENDED THE COMMISSION'S BURDENIN REQUIRING IT TO TRACE THOSE
PRODUCTS TO THE SHELVES OF THE DISFAVORED RETAILERS. 

        IV. 

THE COMMISSION'S VIEW OF THE IMPACT OF RESPONDETS' ARGUMENT IN NO
WAY CONFLICTS WITH OUR OWN.  IN REJECTING RESPONDENTS' CONSTRUCTION OF
SEC. 2(D), THE COMMISSION OBSERVED: 

"THE NET RESULT OF THIS ARGUMENT IS THAT THE ENTIRE STRUCTURE OF
'INDEPENDENT' FOOD MERCHANTS-- INCLUDING THE TRADITIONAL WHOLESALER AND
HIS NUMEROUS, SMALL RETAILER-CUSTOMERS-- ARE PLACED COMPLETELY OUTSIDE
THE PALE OF SECTION 2(D) OF THE AMENDED CLAYTON ACT INSOFAR AS THEIR
COMPETITION WITH THE DIRECT-BUYING 'CHAINS' IS CONCERNED. 

        .         .          .          . 

     "WE ARE NOT PERSUADED THAT CONGRESS EITHER INTENDED OR
EFFECTED

  ANY SUCH RESULT WHEN IT PASSED SECTION 2(D).  IN THE FIRST PLACE,

  SUCH A CONSTRUCTION GOES SQUARELY AGAINST THE WELL-KNOWN PURPOSES

  OF THE ACT ITSELF, NAMELY, TO GIVE THE 'INDEPENDENT' FOOD SELLERS

  AN EVEN BREAK IN THEIR COMPETITION WITH THE 'CHAINS.'"  /20/

BUT RATHER THAN CONCLUDING, AS WE HAVE, THAT RETAILERS WHO PURCHASED
THROUGH HUDSON HOUSE AND WADHAMS AND COMPETED WITH MEYER IN RESALES
WERE DISFAVORED CUSTOMERS OF TRI-VALLEY AND IDAHO CANNING, A MAJORITY
OF THE COMMISSION HELD THAT THE WHOLESALERS, HUDSON HOUSE AND WADHAMS,
WERE THE CUSTOMERS ENTITLED TO PROMOTIONAL ALLOWANCES ON PROPORTIONALLY
EQUAL TERMS WITH MEYER.  ALTHOUGH WE APPROACH THE COMMISSION'S RULING
WITH THE DEFERENCE DUE THE AGENCY CHARGED WITH DAY-TO-DAY
ADMINISTRATION OF THE ACT, WE HOLD THAT, AT LEAST ON THE FACTS BEFORE
US, SEC. 2(D) DOES NOT REQUIRE PROPORTIONAL EQUALITY BETWEEN MEYER AND
THE TWO WHOLESALERS. 

THE COMMISSION BELIEVED IT FOUND SUPPORT FOR ITS POSITION IN THE
LANGUAGE OF SEC. 2(D) ITSELF, WHICH REQUIRES THAT PROMOTIONAL
ALLOWANCES BE ACCORDED ON PROPORTIONALLY EQUAL TERMS TO "CUSTOMERS
COMPETING IN THE DISTRIBUTION" OF A SUPPLIER'S PRODUCT, RATHER THAN
MERELY TO CUSTOMERS COMPETING IN RESALES.  THE MAJORITY REASONED THAT
HUDSON HOUSE AND WADHAMS, WHEN THEY RESOLD TO MEYER'S RETAIL
COMPETITORS, WERE COMPETING WITH MEYER IN THE DISTRIBTUION OF TRI
VALLEY AND IDAHO CANNING PRODUCTS BECAUSE THE TWO WHOLESALERS WERE
"SEEKING EXACTLY THE SAME CONSUMER DOLLARS THAT RESPONDENTS ARE
AFTER."  63 F.T.C.,AT -- , WHILE IT CANNOT BE DOUBTED THAT CONGRESS
REASONABLY COULD HAVE EMPLOYED SUCH A BROAD CONCEPT OF COMPETITION IN
SEC. 2(D), WE DO NOT BELIEVE THAT THE USE OF THE WORD "DISTRIBUTION"
RATHER THAN "RESALE" IS A CLEAR INDICATION THAT IT DID, AND WHAT
DISCUSSION THERE WAS OF THE PROMOTIONAL ALLOWANCE PROVISION DURING THE
CONGRESSIONAL HEARINGS INDICATES THAT THE SECTION WAS MEANT TO IMPOSE
PROPORTIONAL EQUALITY ONLY WHERE BUYERS COMPETED ON THE SAME FUNCTIONAL
LEVEL.  THUS, IN REPORTING THE PROVISION, BOTH THESENATE AND HOUSE
JUDICIARY COMMITTEES USED THE FOLLOWING EXAMPLE: 

"TO ILLUSTRATE:  WHERE, AS WAS REVEALED IN THE HEARINGS EARLIER
REFERRED TO IN THIS REPORT, A MANUFACTURER GRANTS A PARTICULAR CHAIN
DISTRIBUTOR AN ADVERTISING ALLOWANCE OF A STATED AMOUNT PER MONTH PER
STORE IN WHICH THE FORMER'S GOODS ARE SOLD, A COMPETING CUSTOMER WITH A
SMALLER NUMBER OF STORES, BUT EQUALLY ABLE TO FURNISH THE SAME SERVICE
PER STORE, AND UNDER.CONDITIONS OF THE SAME VALUE TO THE SELLER, WOULD
BE ENTITTLED TO A SIMILAR ALLOWANCE ON THAT BASIS."  /21/ THIS
ILLUSTRATION AND OTHERS WHICH COULD BE CITED ARE NOT CONCLUSIVE, BUT
THEY DO STRONGLY SUGGEST THAT THE COMPETITION WITH WHICH CONGRESS WAS
CONCERNED IN SEC. 2(D) WAS THAT BETWEEN BUYERS WHO COMPETED IN RESALES
OF THE SUPPLIER'S PRODUCTS.  AND, AS STATED ABOVE, CONGRESS'  OBJECTIVE
WAS TO A SSURE THAT ALL SELLERS, REGARDLESS OF SIZE, COMPETING DIRECTLY
FOR THE SAME CUSTOMERS WOULD RECEIVE EVEN-HANDED TREATMENT FROM THEIR
SUPPLIERS.  /22/  WE NOTED IN FTC V. SUN OIL CO., 371 U.S. 505 (1963),
THAT WHEN CONGRESS WISHED TO EXPAND THE MEANING OF COMPETITION TO
INLCUDE MORE THAN RESELLERS OPERATING ON THE SAME FUNCTIONAL LEVEL, IT
KNEW HOW TO DO SO IN UNMISTAKABLE TERMS.  IT DID SO IN SEC.  TY OF THE
ACT BY PROHIBITING PRICE DISCRIMINATION WHICH MAY "INJURE, DESTROY, OR
PREVENT COMPETITION WITH ANY PERSON WHO EITHER GRANTS OR KNOWINGLY
RECEIVES THE BENEFIT OF SUCH DISCRIMINATION, OR WITH CUSTOMERS OF
EITHER OF THEM."  ID., AT 514-515; SEE FTC V. MORTON SALT CO., 334 U.S.
37, 55 (1948).  WE STATED IN SUN OIL THAT: 

"THERE IS NO REASON APPEARING ON THE FACE OF THE STATUTE TO ASSUME
THAT CONGRESS INTENDED TO INVOKE BY OMISSION IN SEC. 2(B) THE SAME
BROAD MEANING OF COMPETITION OR COMPETITOR WHICH IT EXPLICITLY PROVIDED
BY INCLUSION IN SEC. 2(A); THE REASONABLE INFERENCE IS QUITE THE
CONTRARY."  /23/ IN THE PRESENT CASE, TOO, WE THINK "THE REASONABLE
INFERENCE" IS THAT CONGRESS DID NOT INTEND SUCH A BROAD MEANING OF
COMPETITION IN SEC. 2(D).  WE RECOGNIZE THAT IT WOULD BE BOTH
INAPPROPRIATE AND UNWISE TO ATTEMPT TO FORMULATE AN ALL-EMBRACING RULE
APPLYING THE ELUSIVE LANGUAGE OF THE SECTION TO EVERY SYSTEM OF
DISTRIBUTION A SUPPLIER MIGHT DEVISE FOR GETTING HIS PRODUCT TO THE
CONSUMER.  BUT, ON THE CONCRETE FACTS HERE PRESENTED, IT IS CLEAR THAT
THE DIRECT IMPACT OF MEYER'S RECEIVING DISCRIMINATORY PROMOTIONAL
ALLOWANCES IS FELT BY THE DISFAVORED RETAILERS WITH WHOM MEYER COMPETES
IN RESALES.  WE CANNOT ASSUME WITHOUT A CLEAR INDICATION FROM CONGRSS
THAT SEC. 2(D) WAS INTENDED TO COMPEL THE SUPPLIER TO PAY THE
ALLOWANCES TO A RESELLER FURTHER UP THE DISTRIBUTIVE CHAIN WHO MIGHT OR
MIGHT NOT PASS THEM ON TO THE LEVEL WHERE THE IMPACT WOULD BE FELT
DIRECTLY.  WE CONDLUDE THAT THE MOST REASONABLE CONSTRUCTION OF SEC.
2(D) IS ONE WHICH PLACES ON THE SUPPLIER THE RESPONSIBILITY FOR MAKING
PROMOTIONAL ALLOWANCES AVAILABLE TO THOSE RESELLERS WHO COMPETE
DIRECTLY WITH THE FAVORED BUYER. 

THE COMMISSION ARGUES HERE THAT THE VIEW WE TAKE OF SEC. 2(D) IS
IMPRACTICABLE BECAUSE SUPPLIERS WILL NOT ALWAYS FIND IT FEASIBLE TO
BYPASS THEIR WHOLESALERS AND GRANT PROMOTIONAL ALLOWANCES DIREECTLY TO
THEIR NUMEROUS RETAIL OUTLETS.  OUR DECISION DOES NOT NECESSITATE SUCH
BYPASSING.  WE HOLD ONLY THAT, WHEN A SUPPLIER GIVES ALLOWANCE TO A
DIRECT-BUYING RETAILER, HE MUST ALSO MAKE THEM AVAILABLE ON COMPARABLE
TERMS TO THOSE WHO BUY HIS PRODUCTS THROUGH WHOLESALERS AND COMPETE
WITH THE DIRECT BUYER IN RESALES.  NOTHING WE HAVE SAID BARS A
SUPPLIER, CONSISTENTLY WITH OTHER PROVISIONS OF THE ANTITRUST LAWS,
FROM UTILIZING HIS WHOLESALERS TO DISTRIBUTE PAYMENTS OR ADMINISTER A
PROMOTIONAL PROGRAM, SO LONG AS THE SUPPLIER TAKES RESPONSIBILITY,
UNDER RULES AND GUIDES PROMULGATED BY THE COMMISSION FOR THE REGULATION
OF SUCH PRACTICES, /24/  FOR SEEING THAT THE ALLOWANCES ARE MADE
AVAILABLE TO ALL WHO COMPETE IN THE RESALE OF HIS PRODUCT. 

THE JUDGMENT OF THE COURT OF APPEALS, INSOFAR AS IT HELD THAT THE
PROMOTIONAL ALLOWANCES GRANTED MEYER BY TRI-VALLEY AND IDAHO CANNING
DID NOT VIOLATE SEC. 2(D), IS REVERSED.  THE CASE IS REMANDED TO THE
COURT OF APPEALS WITH DIRECTIONS TO REMAND TO THE COMMISSION FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

IT IS SO ORDERED. 

/1/  38 STAT. 730, AS AMENDED, 49 STAT. 1526, 1527, 15 U.S.C. 13(A),
13(D).  SECTION (2A) PROVIDES IN PERTINENT PART: 

"(IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY, . . . WHERE THE EFFECT OF SUCH DISCRIMINATION MAY BE . . . TO
INJURE, DESTROY, OR PREVENT COMPETITION WITH ANY PERSON, WHO EITHER
GRANTS OR KNOWINGLY RECEIVES THE BENEFIT OF SUCH DISCRIMINATION, OR
WITH CUSTOMERS OF EITHER OF THEM: . . . " 


"(IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE TO PAY OR
CONTRACT FOR THE PAYMENT OF ANYTHING OF VALUE TO OR FOR THE BENEFIT OF
A CUSTOMER OF SUCH PERSON IN THE COURSE OF SUCH COMMERCE AS
COMPENSATION OR IN CONSIDERATION FOR ANY SERVICES OR FACILITIES
FURNISHED BY OR THROUGH SUCH CUSTOMER IN CONNECTION WITH THE
PROCESSING, HANDLING, SALE, OR OFFERING FOR SALE OF ANY PRODUCTS OR
COMMODITIES MANUFACTURED, SOLD, OR OFFERED FOR SALE BY SUCH PERSON,
UNLESS SUCH PAYMENT OR CONSIDERATION IS AVAILABLE ON PROPORTIONALLY
EQUAL TERMS TO ALL OTHER CUSTOMERS COMPETING IN THE DISTRIBUTION OF
SUCH PRODUCTS OR COMMODITIES." 

/2/  SEE N. 1, SUPRA. 

/3/  THE COMMISSION AND RESPONDENTS FILED SEPARATE PETITIONS FOR
CERTIORARI TO REVIEW DIFFERENT RULINGS OF THE COURT OF APPEALS. 
RESPONDENTS CONTENDED (1) THAT THE COMMISSION HAD FAILED TO SHOW THAT
RESPONDENTS' INDUCEMENT OF SECS. 2(A) AND 2(D) VIOLATIONS HAD BEEN
KNOWING AND (2) THAT THE COMMISSION'S ORDER PROHIBITING FUTURE
INDUCEMENT OF SEC. 2(D) VIOLATIONS WAS TOO BROAD.  THE COMMISSION'S
PETITION RAISED THE QUESTION "(WHETHER A SUPPLIER'S GRANTING TO A
RETAILER WHO BUYS DIRECTLY FROM IT PROMOTIONAL ALLOWANCES THAT ARE NOT
MADE AVAILABLE TO A WHOLESALER WHO RESELLS TO RETAILERS COMPETING WITH
THE DIRECT-BUYING RETAILER VIOLATES SECTION 2(D) OF THE ROBINSON-PATMAN
ACT."  THE COMMISSION ALSO PRESENTED AN ADDITIONAL QUESTION WHICH IT
SOUGHT TO RESERVE ONLY IF RESPONDENTS' PETITION WAS GRANTED.  WE DENIED
RESPONDENTS' PETITION, 386 U.S. 908 (1967), AND SPEVIDICALLY LIMITED
OUR REVIEW ON THE COMMISSION'S PETITION TO THE ISSUE OF STATUTORY
INTERPRETATION THEREIN PRESENTED.  386 U.S. 907 (1967). 

/4/  THE COMMISSION FOUND THAT THE TOTAL OF $25,200 RECEIVED BY
MEYER FROM 72 PARTICIPATING SUPPLIERS IN EACH OF THE YEARS 1956 AND
1957 MORE THAN COVERED MEYER'S COST OF PUBLISHING, DISTRIBUTING, AND
PUBLICIZING THE COUPON BOOKS IN THOSE YEARS.  THE COMMISSION
CHARACTERIZED AS "CLEAR PROFIT: THE $13,870 PAID MEYER BY CONSUMER
PURCHASERS OF THE BOOKS IN 1957. 

/5/  SEE N. 1, SUPRA.     /6/  15 U.S.C. 13(F): 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, KNOWINGLY TO INDUCE OR RECEIVE A
DISCRIMINATION IN PRICE WHICH IS PROHIBITED BY THIS SECTION." 

/7/  38 STAT. 719, AS AMENDED, 66 STAT. 632, 15 U.S.C. 45(A): 

"(1) UNFAIR METHODS OF COMPETITION IN COMMERCE, AND UNFAIR OR
DECEPTIVE ACTS OR PRACTICES IN COMMERCE, ARE HEREBY DELCARED UNLAWFUL. 

        .     .          .          . 

"(6) THE COMMISSION IS HEREBY EMPOWERED AND DIRECTED TO PREVENT
PERSONS, PARTNERSHIPS, OR CORPORATIONS . . . FROM USING UNFAIR METHODS
OF COMPETITION IN COMMERCE OR DECEPTIVE ACTS OR PRACTICES IN
COMMERCE." 

/8/  63 F.T.C.,AT -- (COMMISSIONER ELMAN, CONCURRING IN PART AND
DISSENTING IN PART). 

/9/  THIS CASE, IN ITS PRESENT POSTURE, DOES NOT PRESENT THE
QUESTION WHETHER THE FUNCTIONAL LABEL USED BY A MANUFACTURER OR
RESELLER REFLECTS HIS ACTUAL POSITION IN THE DISTRIBUTIVE CHAIN. 
COMPARE FTC V. RUBEROID CO., 343 U.S. 470, 475 (1952); CF. FTC V.
SIMPLICITY PATTERN CO., 360 U.S. 55, 62-63 (1959). 

/10/  AUTOMATIC CANTEEN CO. V. FTC, 346 U.S. 61, 65 (1953); SEE F.
ROWE, PRICE DISCRIMINATION UNDER THE ROBINSON-PATMAN ACT 20 (1962). 

/11/  S. RE. NO. 224, 70TH CONG., 1ST SESS., 69 CONG.RE. 7857
(1928). 

/12/  FEDERAL TRADE COMMISSION, FINAL REPORT ON THE CHAIN-STORE
INVESTIGATION, S. DOC. NO. 4, 74TH CONG., 1ST SESS., 63-65, 90-91, 96
97 (1935). 

/13/  ID., AT 57-65.  SEE ALSO HEARINGS BEFORE THE SPECIAL:OUSE
COMMITTEE ON INVESTIGATION OF AMERICAN RETAIL FEDERATION, 74TH CONG.,
1ST SESS. (1935). 

/14/  SEE C. AUSTIN, PRICE DISCRIMINATION AND RELATED PROBLEMS UNDER
THE ROBINSON-PATMAN ACT 6-11 (2D REV.ED. 1959).  IN PRESENTING HIS BILL
TO THE HOUSE JUDICIARY COMMITTEE, REPRESENTATIVE PATMAN STATED: 

"I BELIEVE IT IS THE OPINION OF EVERYONE WHO HAS STUDIED THIS
SUBJECT, THAT THE DAY OF THE INDEPENDENT MER CHANT IS GONE UNLESS
SOMETHING IS DONE AND DONE QUICKLY.  HE CANNOT POSSIBLY SURVIVE UNDER
THAT SYSTEM.  SE WE HAVE REACHED THE CROSSROADS; WE MUST EITHER TURN
THE GOOD AND GROCERY BUSINESS OF THIS . . . COUNTRY OVER TO A FEW
CORPORATE CHAINS, OR WE HAVE GO TTO PASS LAWS THAT WILL GIVE THE
PEOPLE, WHO BUILT THIS COUNTRY IN TIME OF PEACE AND WHO SAVED IT IN
TIME OF WAR, AN OPPORTUNITY TO EXIST-- NOT TO FIVE THEM ANY SPECIAL
RIGHTS, SPECIAL PRIVILEGES, OR SPECIAL BENEFITS, BUT JUST TO DENY THEIR
COMPETITORS THE SPECIAL BENEFITS THAT THEY ARE GETTING, THAT THEY
SHOULD NOT BE PERMITTED TO HAVE."  HEARINGS ON H.R. 8442, 4995, AND
5062 BEFORE THE OUSE COMMITTEE ON THE JUDICIARY, 74TH CONG., 1ST SESS.,
5-6 (1935). 

/15/  SEE FEDERAL TRADE COMMISSION, FINAL REPORT ON THE CHAIN-STORE
INVESTIGATION, SUPRA, N. 12, AT 78-82. 

/16/  ID., AT 44-46, 61.  SEE ALSO HEARINGS BEFORE THE SPECIAL HOUSE
COMMITTEE ON INVESTIGATION OF AMERICAN RETAIL FEDERATION, 74TH CONG.,
1ST SESS., VOL. 3, NO. 1, AT 66-88 (1935) 

/17/  HEARINGS ON BILLS TO AMEND THE CLAYTON ACT BEFORE A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY, 74TH CONG., 2D
SESS., 464 (1936) (MR. TEEGARDEN). 

/18/  S. PRE.  NO. 1502, 74TH CONG., 2D SESS., 7 (1936).  THE HOSE
JUDICIARY COMMITTEE REPORTED THE PROVISION FAVORABLE INDENTICAL TERMS. 
H.R. REP. NO. 2287, 74TH CONG., 2D SESS., 15-16 (1936). 

/19/  THE COMMISSION'S SEC. 2(A) AND SEC. 2(D) RULINGS WERE BOTH
BASED ON FINDINGS THAT RETAILERS IN THE PORTLAND AREA WHO PURCHASED
THROUGH HUDSON HOUSE AND WADHAMS COMPETED WITH MEYER IN THE RESALE OF
IDAHO CANNING CORN AND TRI-VALLEY PEACHES.  THE COURT OF APPEALS COULD
NOT HAVE CONSISTENTLY SET ASIDE THESE FINDINGS WITH REGARD TO THE SEC.
2(D) VIOLATIONS WHILE UPHOLDING THEM WITH RESPECT TO SEC. 2(A). 

/20/  63 F.T.C.,AT 00. 

/21/  S. REP. NO. 1502, 74TH CONG., 2D SESS., 8 (1936); H.R. REP.
NO. 2287, 74TH CONG., 2D SESS., 16 (1936). 

/22/  SEE N. 14, SUPRA. 

/23/  371 U.S.,AT 515. 

/24/  SEE 16 CFR SECS. 1.55-1.56; CF. "GUIDES FOR ALLOWANCES AND
SERVICES," 1 CCH TRADE REG.REP.PARA.  3980, AT 6073-6079. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE FORTAS, CONCURRING. 

I AGREE WITH THE RESULT IN THIS CASE AND I JOIN THE COURT'S
OPINION.  THE NET OF OUR DECISION, AS I SEE IT, IS THIS.  THE STATUTE
PERMITS A SUPPLIER TO MAKE PAYMENT TO RETAILERS FOR SERVICES AND
FACILITIES ONLY IF SUCH PAYMENT OR ITS EQUIVALENT IS MADE AVAILABLE TO
ALL COMPETING RETAILERS HANDLING THE SUPPLIER'S PRODUCT.  IF THEY
CHOOSE TO RENDER THE SAME OR EQUIVALENT SERVICE OR FURNISH THE SAME OR
EQUIVALENT FACILITIES, THEY ARE ENTITLED TO THE SAME PAYMENT.  /1/  I
BELIEVE THAT THIS RESULF, OBVIOUSLY INTENDED BY THE CONGRESS, CAN BEST
BE SQUARED WITH THE LANGUAGE OF SEC. 2(D) BY THE DEVICE OF REGARDING
THE WHOLESALER AND HIS RETAIL CUSTOMER AS A UNIT FOR PURPOSES OF THAT
OPPORTUNITY TO PRACTICIPATE BE AFFORDED TO THE COMPETING RETAILER, AND
NOT MERELY TO THE WHOLESALER.  THIS IS THE PLAIN THRUST AND PURPOSE OF
THE SECTION.  THE SUPPLIR MAY SATISFY THIS OBLIGATION BY DIRECT DEALING
WITH THE COMPETING RETAILER OR BY ARRANGEMENT WITH THE WHOLESALER
REASONABLY DESIGNED TO TRANSMIT TO THE RETAILER PARTICIPATION IN THE
PROGRAM IF THE RETAILER CHOOSES TO ACCEPT. 

/1/  WE NEED NOT HERE CONSIDER REFINEMENTS OF THE PROBLEM-- E.G.,
THE DUTY OF THE SUPPLIER TO TAILOR HIS OFFER SO THAT IT IS WITHIN THE
PRACTICAL CAPABILITY OF ALL COMPETING RETAILERS; OR NEGATIVELY, TO
AVOID MAKING AN OFFER WHICH DOES NOT PERMIT FAIR PARTICIPATION BY ALL
TYPES OF RETAILERS OF THE PRODUCT, AS A PRACTICAL MATTER. 

MR. JUSTICE HARLAN, DISSENTING. 

I DISSENT BECAUSE I BELIEVE THE TIME HAS COME FOR A CHANGE IN
APPROACH TO ROBINSON-PATMAN ACT CASES THAT AS HERE, CAN ONLY BE DECIDED
BY A JUDICIAL TOUR DE FORCE.  NO DOUBT, THE BROAD PURPOSE OF THE ACT
WAS TO PROTECT SMALL SELLERS FROM THE ADVANTAGES THEIR LARGER
COMPETITORS CAN OBTAIN THROUGH GREATER BUYING POWER.  IN IMPLEMENTING
THIS PURPOSE, HOWEVER, THE STATUTE IMPOSES A HODGEPODGE OF CONFUSING,
/1/  INCONSISTENT, /2/  AND FREQUENTLY MISDIRECTED /3/  RESTRICTIONS. 
IN SUCH A SITUATION IT SEEMS TO ME THE WISER COURSE FOR THIS COURT TO
HEW AS CLOSELY AS POSSIBLE TO THE WANDERING LINE THAT THE STATUTE HAS
DRAWN (WITH DUE DEFERENCE TO THE EXPERTISE OF THE COMMISSION CHARGED
WITH ENFORCING THE STATUTE) AND NOT TO READ INTO THE ACT ITS OWN
NOTIONS OF HOW BEST TO PROTECT "LITTLE PEOPLE" FROM "BIG PEOPLE." 

IN THIS CASE, CERTAIN SUPPLIERS MADE PROMOTIONAL ALLOWANCES TO THE
COMPANY, A DIRECT-BUYING RETAILER.  THE ACT PROVIDES THAT IF
PROMOTIONAL ALLOWANCES ARE MADE TO ONE CUSTOMER THEY MUST ALSO BE MADE,
ON A BASIS OF PROPORTIONAL EQUALITY, TO ALL OTHER "CUSTOMERS COMPETING
IN THE DISTRIBTION" OF THE SUPPLIERS PRODUCT.  THE SUPPLIERS HERE
INVOVLED DID NOT MAKE THE PROMOTIONAL ALLOWANCES GIVEN TO THE COMPANY
AVAILABLE TO CERTAIN RETAILERS WHOCOMPETE WITH IT BUT WHO BUY NOT FROM
THE SUPPLERS THEMSELVES BUT FROM WHOLESALERS WHO IN TURN BUY FROM THE
SUPPLIERS.  THE COURT NOW HOLDS, FOR THE FIRST TIME, 32 YEARS AFTER THE
PASSAGE OF THE ACT, THAT ALTHOUGH THESE DISFAVORED RETAILERS ARE NOT
LITERALLY "CUSTOMERS" OF THE SUPPLIERS, THE "BROAD GOALS" OF THE ACT
REQUIRE THEM TO BE TREATED AS IF THEY WERE. 

UNFORTUNATELY, NOTHING IN THE ACT AND NOT ONE WORD OF LEGISLATIVE
HISTORY THE COURT HAS FOUND SUGGEST THAT CONGRESS MEANT THE WORD
"CUSTOMERS" TO MEAN "NONCUSTOMERS WHO THE COURT THINGS NEED
PROTECTION."  THE FEDERAL TRADE COMMISSION REFUSED TO ACCEPT THE
SUGGESTION OF ONE COMMISSIONER THAT THIS UNEXPECTED NONLITERAL READING
OF THE WORD WOULD BEST EFFECTUATE THE ACT'S PURPOSES, SO THAT
COMMISSION EXPERTISE CANNOT IN THIS INSTANCE BE BROUGHT TO BEAR IN
SUPPORT OF THE COURT'S CONSTRUCTION. 

FURTHERMORE, THE FAILURE OF THE ACT TO EXTEND EXPLICIT PROTECTION IN
THE PRESENT SITUATION CANNOT BE DISMISSED AS MERE LEGISLATIVE
OVERSIGHT.  COMPELLING SUPPLIERS TO MAKE PROMOTIONAL ALLOWANCES
AVAILABLE TO RETAILERS WITH WHOM THEY DO NOT DEAL IS NO SIMPLE MATTER. 
THE SUPPLIER COULD DEAL THROUGH HIS WHOLESALERS, IMPOSING RESTRICTIONS
ON THEM TO GUARANTEE THAT AN "ALLOWANCE" IS ACTUALLY PASSED THROUGH TO
RETAILERS, ONLY BY RUNNING AFOUL OF THE SHERMAN ACT.  /4/  NOR WOULD IT
SIMPLIFY MATTERS TO MAKE THE ALLOWANCES DIRECTLY AVAILABLE TO
RETAILERS:  BY HYPOTHESIS, THE RETAILERS IN QUESTION ARE TOO SMALL TO
MAKE DIRECT DEALING EFFICIENT, AND IN ANY EVENT THE SUPPLIERS AND
RETAILERS WOULD CONSTANTLY RISK A SHERMAN ACT CHARGE, BY THE WHOLESALER
IN THE MIDDLE, THAT THEY WERE CONSPIRING IN RESTRAINT OF HIM.  /5/ 

IN ADDITION, UNDER THE PRESENT CIRCUMSTANCES THE VERY IDEA OF
"PROPORTIONAL EQUALITY" IS ALMOST MEANINGLESS.  THE SUPPLER IS ASKED TO
OFFER "EQUAL" PROMOTIONAL ALLOWANCES TO A DIRECT-BUYING CHAIN AND A SET
OF SMALL RETAILERS WHO BUY THROUGH WHOLESALERS WHO PRESUMABLY CARRY
MUCH OF THE PROMOTION LOAD; THE SUPPLIER RISKS TREBLE DAMAGES IF HIS
GUESS AS TO WHAT IS EVEN-HANDED TREATMENT TURNS OUT TO BE ERRONEOUS. 
EVEN IF IT WERE DESIRABLE TO FORCE SUPPLIERS TO SUBMIT EVERY PROMOTION
TO THE FTC FOR ADVANCE APPROVAL, THE COMMISSION'S REFUSAL TO REQUIRE
EQUALITY BETWEEN CUSTOMERS AND NONCUSTOMERS HERE DOES NOT INDICATE THAT
THE EXPERTS ARE SANGUINE ABOUT THE POSSIBLITY OF WORKING OUT A RATIONAL
DEFINITION OF PROPORTIONAL EQUALITY UNDER THESE CIRCUMSTANCES. 

THE SUPPLIER CAN, OF COURSE, RESOLUTELY REFUSE TO ENTER INTO
PROMOTIONAL PROGRAMS, A COURSE OF ACTION THAT WOULD EFFECTIVELYAVOID
FAVORING LARGE DISTRIBUTORS.  IN DOING SO, HOWEVER, HE WOULD BE
ABANDONING ONE SIGNIFICANT FORM OF COMPETITION WITH HIS FELLOW
SUPPLIERS, AND WOULD RISK THE DISFAVOR OF RETAILERS WHO MIGHT PREVAIL
ON DIFFERENTLYSITUATED AND LESS TIMOROUR COMPETITIVE SUPPLIERS FOR
ASSISTANCE. 

CONGRESS, CONCERNED ASIT WAS FOR SMALL RETAILERS, DID NOT EXPLICITLY
IMPOSE THE PARTICULAR RESTRICTION ON SUPPLIERS ANNOUNCED TODAY.  SINCE,
FOR ALL WE KNOW, OMISSION MAY HAVE BEEN DELIBERATE IN LIGHT OF
PRACTICAL CONSIDERATION, I PREFER TO TAKE THE STATUTE AS WE FIND IT.
THIS COURSE OF ACTION HERE AND IN SIMILARLY OPAQUE CASES MIGHT AT LEAST
ENCOURAGE THE CONGRESS TO GIVE THIS NOTORIOUSLY AMORPHOUS STATUTE THE
THOROUGH OVERHAULING THAT HAS LONG BEEN DUE.  /6/  ON THIS BASIS I
CONSIDER THAT THIS CASE SHOULD GO FOR THE RESONDENTS. 

/1/  SEE, E.G., F. ROWE, PRICE DISCRIMINATION UNDER THE ROBINSON
PATMAN ACT 534; STEDMAN, TWENTY-FOUR YEARS OF THE ROBINSON-PATMAN ACT,
1960 WIS.L.REV.  197, 218. 

/2/  SEE, E.G., LEVI, THE ROBINSON-PATMAN ACT-- IS IT IN THE PUBLIC
INTEREST?, 1 ABA ANTITRUST SECTION 60 (1952 1953).  AS PROFESSOR LEVI
NOTED, PUBLISHED CRITICISM OF THE ACT IS UNSPORTINGLY EASY TO FIND:
"THE LITERATURE ON THE ACT HAS BECOME SOMETHING OF A CONTEST OF
WITTICISMS TO RELIEVE AN OTHERWISE DREARY PICTURE."  IBID.  AN EXAMPLE
IS EINE LKEINE JURISTISCHE SCHLUMMERGESCHICHTE, 79 HARV.L.REV.  921. 

/3/  SEE, E.G., SHNIDERMAN, THE IMPACT OF THE ROBINSON-PATMAN ACT ON
PRICING FLEXIBILITY, 57 NW.U.L.REV.  173; AUSTERN, PRESUMPTION AND
PERCIPIENCE ABOUT COMPETITIVE EFFECT UNDER SECTION 2 OF THE CLAYTON
ACT, 81 HARV.L.REV.  773.  THE CONFUSION IS ALL THE MORE UNFORTUNATE IN
A FIELD WHERE ACTUAL CONFLICTING OBJECTIVES ARE MANY:  "COMPETITIVE"
PURPOSES ARE OFTEN AT ODDS WITH "PROTECTIVE" PURPOSES; THE DEFENSE OF
TRADERS AT ONE LEVEL OF DISTRIBUTION MAY BE INCONSISTENT WITH THE
LIBERTY OF TRADERS AT ANOTHER LEVEL, AND WITH THE INTERESTS OF
CONSUMERS. 

/4/  UNDER ALBRECHT V. HERALD CO., ANTE, P. 145, IT WOULD PRESUMABLY
BE UNLAWFUL PER SE FOR A SUPPLIER TO ATTEMPT TO PREVENT HIS WHOLESALERS
FROM ABOSRBING THE ALLOWANCE BY CHARGING HIGHER PRICES. 

/5/  UNDER ALBRECHT, SUPRA, N.4, IT IS DIFFICULT TO SEE WHY AN
AGREEMENT BETWEEN SUPPLIER AND RETAILER SUFFICIENT TO INSURE THAT
WHOLESALERS IN THE MIDDLE DO NOT ABSORB PROMOTIONAL ALLOWANCES WOULD
NOT CONSTITUTE A COMBINATION IN RESTRAINT OF THESE WHOLESALERS. 

/6/  SEE FRIENDLY, THE GAP IN LAWMAKING-- JUDGES WHO CAN'T AND
LEGISLATORS WHO WON'T, 63 COL.L.REV.  787, 794:  "THE TINIEST FRACTION
OF THE TIME SPENT BY LAWYERS, LEGAL WRITERS, ADMINISTRATORS, AND JUDGES
IN AN UNSUCCESSFUL ENDEAVOR TO ELUCIDATE THE OBSCURITIES OF THIS
STATUTE WOULD HAVE SUFFICED TO PUT THE HOUSE IN ORDER ONCE THE PROBLEMS
WERE REVEALED; BUT THAT TIME HAS NOT BEEN SPENT." 

MR. JUSTICE STEWART, DISSENTING. 

ACT, MAKES IT UNLAWFUL FOR A SUPPLIER TO GRANT TO A CUSTOMER A
PROMOTIONAL ALLOWANCE WHICH IS NOT AVAILABLE TO "ALL OTHER CUSTOMERS
COMPETING IN THE DISTRIBUTION OF SUCH PRODUCTS OR COMMODITIES."  THE
FEDERAL TRADE COMMISSION HELD THAT THE RESPONDENT RETAILER HAD VIOLATED
SEC. 2(D) BY INDUCING CERTAIN OF ITS DIRECT SUPPLIERS TO GRANT IT
PROMOTIONAL ALLOWANCES WHICH WERE NOT AVAILABLE TO WHOLESALERS WHO SOLD
THE SUPPLIERS' PRODUCTS TO RETAILERS COMPETING WITH THE RESPONDENT. 
/1/  THE COURT OF APPEALS REFUSED TO ENFORCE THIS PART OF THE
COMMISSION'S ORDER ON THE GROUND THAT THE WHOLESALERS WERE NOT
CUSTOMERS "COMPETING" WITH THE RESPONDENT.  WE GRANTED CERTIORARI
LIMITED TO A SINGLE QUESTION:     "WHETHER A SUPPLIER'S GRANTING TO A
RETAILER WHO BUYS DIRECTLY FROM IT PROMOTIONAL ALLOWANCES THAT ARE NOT
MADE AVAILABLE TO A WHOLESALER WHO RESELLS TO RETAILERS COMPETING WITH
THE DIRECT-BUYING RETAILER VIOLATES SECTION 2(D) OF THE ROBINSON-PATMAN
ACT."  386 U.S. 907. 

THE COURT TODAY AGREES WITH THE COURT OF APPEALS' ANSWER TO THIS
QUESTION AND HOLDS THAT WHOLESALERS ARE NOT CUSTOMERS "COMPETING" WITH
THE RESPONDENT.  BUT THE COURT NEVERTHELESS GOES ON TO HOLD THAT SEC.
2(D) WAS VIOLATED UPON A THEORY NOT ARGUED HERE BY EITHER PARTY.  THE
THEORY IS THAT RETAILERS WHO ARE IN FACT CUSTOMERS OF IND EPENDENT
WHOLESALERS ARE SOMEHOW ALSO "CUSTOMERS" OF THE SUPPLIERS OF THOSE
WHOLESALERS.  THE COMMISSION HAS NEVER SUGGESTED THAT THIS CASE WOULD
TURN ON ANY SUCH CONSTRUCTION OF THE TERM "CUSTOMER."  /2/ CF. SEC V.
CHENERY CORP., 381 U.S. 80 

BECAUSE THE COURT OF APPEALS WAS CORRECT IN REJECTING THE
COMMISSION'S CONSTRUCTION OF SEC. 2(D), I WOULD AFFIRM ITS JUDGMENT. 
BUT, AT THE VERY LEAST, THE CASE SHOULD BE REMANDED IN ORDER TO GIVE
THE RESPONDENT NOTICE AND AN OPPORTUNITY TO DEFEND AGAINST THE NOVEL
CONSTRUCTION OF SEC. 2(D) UNDER WHICH THE COURT TODAY FINDS THE
RESPONDENT TO BE A VIOLATOR OF THE LAW.  DUE PROCESS REQUIRES NO LESS. 
CF. COLE V. ARKANSAS, 333 U.S. 196. 

/1/  IN THIS OPINION THE TERM "RESPONDENT" REFERS TO FRED MEYER,
INC. 

/2/  ON COMMISSIONER ATTEMPT-D IN VAIN TO PERSUADE THE COMMISSION TO
ACCEPT THE THEORY WHICH THECOURT TODAY ADOPTS:  "WHAT MADE THIS
PRACTICE ILLEGAL, AS I SEE IT, IS THAT THE ALLOWANCES WERE NOT ALSO
MADE AVAILABLE ON PROPORTIONALLY EQUAL TERMS TO MEYER'S RETAIL
COMPETITORS.  BUT THAT IS NOT THE COMMISSION'S VIEW OF THE LAW."  63
F.T.C.,AT -- (COMMISSIONER ELMAN, CONCURRING IN PART AND DISSENTING IN
PART). 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR PETITIONER.  ON THE BRIEF
WERE SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL TURNER,
FRANCIS X. BEYTAGH, JR., JAMES MCI.  HENDERSON AND E. K. ELKINS. 

EDWARD F. HOWREY ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE TERRENCE C. SHEEHY AND GEORGE W. MEAD. 

MORRIS B. ABRAM FILED A BRIEF FOR THE ATLANTIC COAST INDEPENDENT
DISTRIBUTORS ASSOCIATION, INC., AS AMICUS CURIAE, URGING REVERSAL. 

GEORGE H. WEIL FILED A BRIEF FOR CLAIROL INCORPOATED, AS AMICUS
CURIAE, URGING AFFIRMANCE. 
..END :




















POAFPYBITTY V. SKELLY OIL CO., 390 U.S. 365 


       POAFPYBITTY ET AL. V. SKELLY OIL CO.

        CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. 

        NO. 65.  ARGUED JANUARY 24, 1968.-- DECIDED MARCH 18,
1968. 


PETITIONERS, COMANCHE INDIANS, BROUGHT THIS ACTION FOR BREACH OF AN
OIL AND GAS LEASE WHICH THEY HAD EXECUTED TO RESPONDENT WITH THE
APPROVAL OF THE ACTING COMMISSIONER OF INDIAN AFFAIRS INVOLVING LAND
WHICH THEY HELD UNDER TRUST PATENTS ISSUED BY THE UNITED STATES UNDER
THE GENERAL ALLOTMENT ACT OF 1887, AS AMENDED.  THAT ACT PROVIDED THAT
INDIVIDUAL INDIANS WERE TO BE ALLOTTED LAND ON THEIR RESERVATIONS WHICH
THE UNITED STATES WAS TO HOLD "IN TRUST FOR THE SOLE USE AND BENEFIT OF
THE INDIAN" ALLOTTEES.  DURING THE 25-YEAR TRUST PERIOD, WHICH HAS BEEN
REPEATEDLY EXTENDED, RESTRICTED INDIAN LAND MAY BE SOLD OR LEASED ONLY
WITH THE CONSENT OF THE SECRETARY OF THE INTERIOR.  LEASING OF ALLOTTED
LAND FOR MINING PURPOSES "BY SAID ALLOTTEE" IS EXPRESSLY AUTHORIZED (25
U.S.C. 396).  THE SECRETARY OF THE INTERIOR MUST APPROVE THE LEASE BUT
IS NOT THE LESSOR AND CANNOT GENERALLY LEASE SUCH LAND ON HIS OWN
AUTHORITY.  THE SECRETARY HAS PROMULGATED EXTENSIVE REGULATIONS FOR THE
OPERATION, DEVELOPMENT, AND CONTROL OF, AND IS EMPOWERED TO CANCEL, THE
LEASES.  A PROVISION IN THE LEASE HERE INVOLVED (SEC. 6) AUTHORIZES THE
SECRETARY TO CANCEL THE LEASE "BEFORE RESTRICTIONS ARE REMOVED" AND
PROVIDES THAT THE LESSOR SHALL HAVE REMEDIES FOR BREACH OF CONTRACT
THEREAFTER.  THE TRIAL COURT SUSTAINED RESPONDENT'S DEMURRER.  THE
OKLAHOMA SUPREME COURT AFFIRMED, HOLDING THAT THE TERMS OF THE LEASE
AND INTERIOR DEPARTMENT REGULATIONS PRECLUDED PETITIONERS FROM SUING. 
HELD:  PETITIONERS HAVE STANDING TO MAINTAIN THIS ACTION.  PP. 368
376. 

(A) FEDERAL RESTRICTIONS PREVENTING AN INDIAN FROM SELLING OR
LEASING HIS ALLOTTED LAND WITHOUT THE CONSENT OF THE GOVERNMENT AND THE
FACT THAT THE GOVERNMENT AS GUARDIAN OF THE INDIAN CAN SUE TO PROTECT
ALLOTMENTS DO NOT PRECLUDE THE INDIAN LANDOWNER FROM MAINTAINING A SUIT
TO PROTECT HIS RIGHTS.  HECKMAN V. UNITED STATES, 224 U.S. 413 (1913). 
PP. 368-372. 

(B) NOTHING IN THE DETAILED REGULATORY SCHEME FOR SUPERVISION BY THE
SECRETARY OF THE INTERIOR OF OIL AND GAS LEASES OF ALLOTTED LAND
DIMINISHES AN INDIAN'S RIGHT TO MAINTAIN AN ACTION TO PROTECT HIS
LEASE.  PP. 372-374. 

(C) IN VIEW OF THE FORMIDABLE ADMINISTRATIVE PROBLEMS OF DISCHARGING
ITS TRUST OBLIGATIONS OVER THE VERY LARGE NUMBER OF SCATTERED INDIAN
ALLOTMENTS, THE UNITED STATES HAS SUPPORTED PETITIONERS' POSITION THAT
THEY HAVE CAPACITY TO SUE UNDER THE OIL AND GAS LEASE.  P. 374. 

(D) THE SECRETARY'S POWER TO CANCEL A LEASE OF ALLOTTED LAND DOES
NOT FORECLOSE LESS DRASTIC RELIEF FOR BREACHES OF ITS TERMS.  P. 374. 

(E) SECTION 6 OF THE LEASE DOES NOT DENY ALL REMEDIES OTHERWISE
AVAILABLE TO THE INDIAN PRIOR TO REMOVAL OF FEDERAL RESTRICTIONS ON HIS
POWER TO ALIENATE THE LAND.  P. 375. 

(F) RESPONDENT'S CONTENTION THAT THE JUDGMENT SHOULD BE SUSTAINED ON
AVAILABLE ADEQUATE STATE PROCEDURAL GROUNDS IS NOT TENABLE SINCE THE
OKLAHOMA SUPREME COURT'S DECISION RESTED SOLELY ON FEDERAL GROUNDS. 
PP. 375-376. 

REVERSED AND REMANDED. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF COURT. 

THE QUESTION PRESENTED IS WHETHER PETITIONERS, WHO ARE COMANCHE
INDIANS, HAVE STANDING TO SUE UNDER AN OIL AND GAS LEASE APPROVED BY
THE DEPARTMENT OF THE INTERIOR FOR USE ON LAND HELD BY INDIANS UNDER
TRUST PATENTS ISSUED BY THE UNITED STATES. 

IN 1947 THE ACTING COMMISSIONER OF INDIAN AFFAIRS APPROVED AN OIL AND
GAS LEASE WHICH PETITIONERS HAD EXECUTED TO RESPONDENT, SKELLY OIL
COMPANY, ON THE FORM PRESCRIBED BY THE DEPARTMENT OF THE INTERIOR.  THE
FIRST WELL WAS DRILLED IN 1956, AND SEVEN PRODUCING WELLS WERE SOON
COMPLETED.  IN 1961 PETITIONERS RETAINED COUNSEL WITH THE APPROVAL OF
THE DEPARTMENT OF THE INTERIOR /1/  AND BROUGHT THIS DAMAGE ACTION
AGAINST RESPONDENT IN THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA,
ALLEGING THAT RESPONDENT HAD BREACHED THE EXPRESS AND IMPLIED COVENANTS
IN THE LEASE AND HAD THEREBY IMPAIRED PETITIONERS' ROYALTIES. 
RESPONDENT NOTIFIED THE DEPARTMENT OF THE INTERIOR AND THE BUREAU OF
INDIAN AFFAIRS OF THE LITIGATION, BUT THE GOVERNMENT MADE NO ATTEMPT TO
INTERVENE IN THE PROCEEDINGS.  THE PETITION FILED IN THE DISTRICT COURT
ASSERTED THAT RESPONDENT HAD PERMITTED NATURAL GAS BEING PRODUCED FROM
THE WELLS TO ESCAPE DESPITE THE FACT THAT THERE WAS A PIPELINE LESS
THAN A MILE FROM THE LAND.  /2/  PETITIONERS CLAIMED THAT RESPONDENT
IGNORED THEIR REQUEST THAT THE GAS BE MARKETED AND CONTINUED TO ALLOW
THE GAS TO BE WASTED IN VIOLATION OF THE TERMS OF THE LEASE.  /3/  THE
DISTRICT COURT SUSTAINED RESPONDENT'S DEMURRER AND DISMISSED THE
PETITION.  THE SUPREME COURT OF OKLAHOMA AFFIRMED ON THE GROUND THAT
PETITIONERS WERE PRECLUDED FROM SUING BY THE PROVISIONS OF THE LEASE
AND BY THE REGULATIONS PROMULGATED BY THE SECRETARY OF THE INTERIOR TO
CONTROL OIL AND GAS LEASES ON RESTRICTED INDIAN LAND.  /4/  WE GRANTED
CERTIORARI, 389 U.S. 814 (1967), TO DETERMINE WHETHER THE FEDERAL
RESTRICTIONS IMPOSED ON THE INDIANS PREVENTED THEM FROM VINDICATING
THEIR RIGHTS.  IN OUR VIEW, THE DECISION BELOW UNDULY RESTRICTS THE
RIGHT OF THE INDIANS TO SEEK JUDICIAL RELIEF FOR A CLAIMED INJURY TO
THEIR INTERESTS UNDER THE OIL AND GAS LEASE. 

THE TRUST PATENTS TO THE LAND IN QUESTION WERE ISSUED TO PETITIONERS
UNDER THE GENERAL ALLOTMENT ACT OF 1887, 24 STAT. 388, AS AMENDED, 25
U.S.C. 331-358, WHICH PROVIDED THAT INDIVIDUAL INDIANS WERE TO BE
ALLOTTED LAND ON THEIR RESERVATIONS /5/  AND THAT THE UNITED STATES WAS
TO HOLD THE LAND "IN TRUST FOR THE SOLE USE AND BENEFIT OF THE INDIAN"
ALLOTTEES FOR A 25-YEAR PERIOD.  25 U.S.C. 348.  DURING THE TRUST
PERIOD, WHICH HAS BEEN REPEATEDLY EXTENDED, /6/  RESTRICTED INDIAN LAND
MAY BE SOLD OR LEASED ONLY WITH THE CONSENT OF THE SECRETARY OF THE
INTERIOR.  IN OUR VIEW, THESE RESTRICTIONS ON THE INDIAN'S CONTROL OF
HIS LAND ARE MERE INCIDENTS OF THE PROMISES MADE BY THE UNITED STATES
IN VARIOUS TREATIES TO PROTECT INDIAN LAND AND HAVE NO EFFECT ON THE
INDIAN'S CAPACITY TO INSTITUTE THE COURT ACTION NECESSARY TO PROTECT
HIS PROPERTY.  IN ORDER TO FULFILL THESE NATIONAL PROMISES TO SAFEGUARD
INDIAN LAND AND AT THE SAME TIME "TO PREPARE THE INDIANS TO TAKE THEIR
PLACE AS INDEPENDENT, QUALIFIED MEMBERS OF THE MODERN BODY POLITIC,"
BOARD OF COUNTY COMM'RS V. SEBER, 318 U.S. 705, 715 (1943), THE
ALLOTMENT SYSTEM WAS CREATED WITH THE INDIANS RECEIVING OWNERSHIP
RIGHTS IN THE LAND WHILE THE UNITED STATES RETAINED THE POWER TO
SCRUTINIZE THE VARIOUS TRANSACTIONS BY WHICH THE INDIAN MIGHT BE
SEPARATED FROM THAT PROPERTY.  SQUIRE V. CAPOEMAN, 351 U.S. 1, 9
(1956).  SEE, E.G., 18 CONG.REC.  190-192 (1886).  THIS DUAL PURPOSE OF
THE ALLOTMENT SYSTEM WOULD BE FRUSTRATED UNLESS BOTH THE INDIAN AND THE
UNITED STATES WERE EMPOWERED TO SEEK JUDICIAL RELIEF TO PROTECT THE
ALLOTMENT.  THE OBLIGATION AND POWER OF THE UNITED STATES TO INSTITUTE
SUCH LITIGATION TO AID THE INDIAN IN THE PROTECTION OF HIS RIGHTS IN
HIS ALLOTMENT WERE RECOGNIZED IN UNITED STATES V. RICKERT, 188 U.S. 432
(1903); HECKMAN V. UNITED STATES, 224 U.S. 413 (1912); AND UNITED
STATES V. CANDELARIA, 271 U.S. 432 (1926).  SEE GENERALLY FEDERAL
INDIAN LAW 326-341 (DEPT. OF INTERIOR, (1958).  IN HECKMAN, AN ACTION
BROUGHT BY THE UNITED STATES TO SET ASIDE AN IMPROPER CONVEYANCE OF
RESTRICTED LAND, THIS COURT REALIZED THAT THE ALLOTMENT SYSTEM CREATED
INTERESTS IN BOTH THE INDIAN AND THE UNITED STATES.  /7/  "A TRANSFER
OF THE ALLOTMENTS IS NOT SIMPLY A VIOLATION OF THE PROPRIETARY RIGHTS
OF THE INDIAN.  IT VIOLATES THE GOVERNMENTAL RIGHTS OF THE UNITES
STATES."  224 U.S.,AT 438.  IN HOLDING THAT THE UNITED STATES COULD SUE
TO PROTECT THE ALLOTMENT, THE COURT INDICATED THAT THE GOVERNMENT COULD
EITHER BRING THE NECESSARY SUIT ITSELF OR ALLOW THE LITIGATION TO BE
PROSECUTED BY THE INDIAN. 

     "IN WHAT CASES THE UNITED STATES WILL UNDERTAKE TO REPRESENT

  INDIAN OWNERS OF RESTRICTED LANDS IN SUITS OF THIS SORT IS LEFT

  UNDER THE ACTS OF CONGRESS TO THE DISCRETION OF THE EXECUTIVE

  DEPARTMENT.  THE ALLOTTEE MAY BE PERMITTED TO BRING HIS OWN

  ACTION, OR IF SO BROUGHT THE UNITED STATES MAY AID HIM IN ITS

  CONDUCT . . . AND WHEN THE UNITED STATES ITSELF UNDERTAKES TO

REPRESENT THE ALLOTTEES OF LANDS UNDER RESTRICTION AND BRINGS

  SUIT TO CANCEL PROHIBITED TRANSFERS, SUCH ACTION NECESSARILY

  PRECLUDES THE PROSECUTION BY THE ALLOTTEES OF ANY OTHER SUIT FOR

  A SIMILAR PURPOSE RELATING TO THE SAME PROPERTY."  ID., AT 446. 

LATER DECISIONS FOLLOWED THE IMPLICATIONS OF HECKMAN AND HELD THAT
THE RIGHT OF THE UNITED STATES TO INSTITUTE A SUIT TO PROTECT THE
ALLOTMENT DID NOT DIMINISH THE INDIAN'S RIGHT TO SUE ON HIS OWN
BEHALF.  IN CREEK NATION V. UNITED STATES, 318 U.S. 629 (1943), THIS
COURT HELD THAT INDIAN TRIBES HAD THE POWER TO SUE A RAILROAD FOR THE
IMPROPER USE OF INDIAN LAND EVEN THOUGH THE TRIBES COULD NOT SUE THE
UNITED STATES FOR ITS FAILURE TO COLLECT THE SUMS ALLEGEDLY DUE.  /8/
THE COURT STATED, "THAT THE UNITED STATES ALSO HAD A RIGHT TO SUE DID
NOT NECESSARILY PRECLUDE THE TRIBES FROM BRINGING THEIR OWN ACTIONS." 
ID., AT 640.  ACCORD, LANE V. PUEBLO OF SANTA ROSA, 249 U.S. 110
(1919); SKOKOMISH INDIAN TRIBE V. FRANCE, 269 F.2D 555 (C.A. 9TH CIR.
1959).  NOR DOES THE EXISTENCE OF THE GOVERNMENT'S POWER TO SUE AFFECT
THE RIGHTS OF THE INDIVIDUAL INDIAN.  /9/  "A RESTRICTED INDIAN IS NOT
WITHOUT CAPACITY TO SUE OR TO BE SUED WITH RESPECT TO HIS AFFAIRS,
INCLUDING HIS RESTRICTED PROPERTY . . . BOTH THE ACT OF APRIL 12, 1926
AND THE DECISION . . . IN HECKMAN V. UNITED STATES . . . RECOGNIZE
CAPACITY IN A RESTRICTED INDIAN TO SUE OR DEFEND ACTIONS IN HIS OWN
BEHALF SUBJECT ONLY TO THE RIGHT OF THE GOVERNMENT TO INTERVENE." 
SADLER V. PUBLIC NAT. BANK & TRUST CO., 172 F.2D 870, 874 (C.A. 10TH
CIR. 1949).  AND IN CHOCTAW & CHICKASAW NATIONS V. SEITZ, 193 F.2D 456,
459 (C.A. 10TH CIR. 1951), THE COURT STATED THAT HECKMAN, SUPRA, LANE,
SUPRA, AND CANDELARIA, SUPRA, "CLEARLY RECOGNIZED THE RIGHTS OF
RESTRICTED INDIANS AND INDIAN TRIBES OR PUEBLOS TO MAINTAIN ACTIONS
WITH RESPECT TO THEIR LANDS, ALTHOUGH THE UNITED STATES WOULD NOT BE
BOUND BY THE JUDGMENT IN SUCH AN ACTION, TO WHICH IT WAS NOT A PARTY,
BROUGHT BY THE RESTRICTED INDIAN OR AN INDIAN TRIBE OR PUEBLO."  IN
BROWN V. ANDERSON, 61 OKLA. 136, 160 P. 724 (1916), THE OKLAHOMA
SUPREME COURT ITSELF HELD THAT HECKMAN HAD "FULLY ANSWERED" THE
ARGUMENT THAT ONLY THE UNITED STATES AS GUARDIAN OF THE INDIAN COULD
BRING A SUIT TO CANCEL AN IMPROPER CONVEYANCE OF A RESTRICTED INDIAN
ALLOTMENT.  THE COURT HELD: 

     "OSBORNE ANDERSON, THE DEFENDANT IN ERROR, ALTHOUGH A FULL

  BLOOD INDIAN, WAS A CITIZEN OF THE UNITED STATES AND OF THE STATE

  OF OKLAHOMA.  NO GOOD REASON APPEARS WHY HE SHOULD BE DENIED THE

  PRIVILEGE OF APPEALING TO THE COURTS OF THE STATE THE SAME AS ANY

  OTHER CITIZEN TO ENFORCE HIS RIGHTS TO PROPERTY, EVEN THOUGH
SUCH

  PROPERTY BE LAND UPON WHICH RESTRICTIONS AGAINST ALIENATION HAVE

  BEEN IMPOSED BY AN ACT OF CONGRESS."  61 OKLA.,AT 138-139, 160

  P.,AT 726. 

SEE BELL V. FITZPATRICK, 53 OKLA. 574, 157 P. 334 (1916); L. MILLS,
OKLAHOMA INDIAN LAND LAWS SEC. 328 (1924).  WE AGREE THAT THE FEDERAL
RESTRICTIONS PREVENTING THE INDIAN FROM SELLING OR LEASING HIS ALLOTTED
LAND WITHOUT THE CONSENT OF A GOVERNMENTAL OFFICIAL DO NOT PREVENT THE
INDIAN LANDOWNER, LIKE OTHER PROPERTY OWNERS, FROM MAINTAINING SUITS
APPROPRIATE TO THE PROTECTION OF HIS RIGHTS. 

THERE REMAINS THE QUESTION WHETHER THE TERMS OF THE OIL AND GAS
LEASE OR THE REGULATIONS PROMULGATED BY THE SECRETARY OF THE INTERIOR
TO GOVERN THOSE LEASES PREVENT THE INDIANS FROM SEEKING JUDICIAL RELIEF
FOR AN ALLEGED IMPAIRMENT OF THEIR INTERESTS UNDER THE LEASE. 
RESPONDENT ARGUES THAT THE SECRETARY HAS SUCH COMPLETE CONTROL OVER THE
LEASE THAT ONLY HE CAN INSTITUTE THE NECESSARY COURT ACTION. 

THE LEASING OF ALLOTTED LAND FOR MINING PURPOSES "BY SAID ALLOTTEE"
IS EXPRESSLY AUTHORIZED BY 25 U.S.C. 396.  ALTHOUGH THE APPROVAL OF THE
SECRETARY IS REQUIRED, HE IS NOT THE LESSOR AND HE CANNOT GRANT THE
LEASE ON HIS OWN AUTHORITY.  /10/  THE SECRETARY IS AUTHORIZED TO
PROMULGATE REGULATIONS CONTROLLING THE OPERATION AND DEVELOPMENT OF THE
LEASE AND TO ISSUE NECESSARY WRITTEN INSTRUCTIONS TO THE LESSEE.  IBID.
SEE GENERALLY 25 CFR 172.1-172.33 (1967); 30 CFR 221.1-221.67 (1967). 
THE LESSEE IS REQUIRED TO FURNISH A SURETY BOND, IN AN AMOUNT
SATISFACTORY TO THE SECRETARY, GUARANTEEING COMPLIANCE WITH THE TERMS
OF THE LEASE, WHICH INCORPORATE THE REGULATIONS OF THE SECRETARY.  25
U.S.C. 396C.  THE SECRETARY HAS THE POWER TO INSPECT THE LEASED
PREMISES AND THE BOOKS AND RECORDS OF THE LESSEE.  25 CFR 172.25
(1967).  THE SECRETARY ALSO HAS THE POWER TO IMPOSE SUCH RESTRICTIONS
AS TO THE TIME FOR THE DRILLING OF WELLS OR THE PRODUCTION FROM ANY
WELL "AS IN HIS JUDGMENT MAY BE NECESSARY OR PROPER FOR THE PROTECTION
OF THE NATURAL RESOURCES OF THE LEASED LAND AND IN THE INTERESTS OF THE
INDIAN LESSOR."  25 CFR 172.24 (1967).  THE LESSEE MUST FURNISH THE
SECRETARY WITH A MONTHLY REPORT DISCLOSING ALL OPERATIONS CONDUCTED ON
THE LEASE, 30 CFR 221.60-221.65 (1967), AND MUST PAY THE ROYALTIES TO
THE SECRETARY WHO DEPOSITS THEM TO THE CREDIT OF THE INDIAN LESSOR.  25
CFR 172.14, 172.16 (1967).  THE LESSEE AGREES TO DRILL WELLS WHICH THE
SECRETARY DETERMINES ARE NECESSARY TO PROTECT THE LEASED LAND FROM
DRAINAGE BY ANOTHER WELL ON ADJOINING PROPERTY.  30 CFR 221.21 (1967). 
FINALLY, THE LESSEE IS OBLIGATED TO PREVENT THE WASTE OF OIL AND GAS
AND AGREES TO PAY THE INDIAN LESSOR THE FULL VALUE OF ALL GAS WASTED,
UNLESS THE SECRETARY DETERMINES AT THE REQUEST OF THE LESSEE THAT THE
WASTE WAS SANCTIONED BY STATE AND FEDERAL LAW.  30 CFR 221.18, 221.35
(1967). 

WHILE THE UNITED STATES HAS EXERCISED ITS SUPERVISORY AUTHORITY OVER
OIL AND GAS LEASES IN CONSIDERABLE DETAIL, WE FIND NOTHING IN THIS
REGULATORY SCHEME WHICH WOULD PRECLUDE PETITIONERS FROM SEEKING
JUDICIAL RELIEF FOR AN ALLEGED VIOLATION OF THE LEASE.  IF THE
GOVERNMENT DOES DETERMINE THAT THERE HAS BEEN WASTE IN VIOLATION OF A
LEASE, IT WILL OF COURSE SATISFY ITS TRUST OBLIGATIONS BY FILING THE
NECESSARY COURT ACTION.  HOWEVER, THERE IS NOTHING IN THE LEASE OR
REGULATIONS REQUIRING THE INDIANS TO SEEK ADMINISTRATIVE ACTION FROM
THE GOVERNMENT INSTEAD OF INSTITUTING LEGAL PROCEEDINGS ON THEIR OWN. 
THE EXISTENCE OF THE POWER OF THE UNITED STATES TO SUE UPON A VIOLATION
OF THE LEASE NO MORE DIMINISHES THE RIGHT OF THE INDIAN TO MAINTAIN AN
ACTION TO PROTECT THAT LEASE THAN THE GENERAL POWER OF THE UNITED
STATES TO SAFEGUARD AN ALLOTMENT AFFECTED THE CAPACITY OF THE INDIAN TO
PROTECT THAT ALLOTMENT.  FURTHERMORE, THE BUREAU OF INDIAN AFFAIRS,
WHICH IS THE AGENCY OF THE DEPARTMENT OF THE INTERIOR CHARGED WITH
FULFILLING THE TRUST OBLIGATIONS OF THE UNITED STATES, IS FACED "WITH
AN ALMOST STAGGERING PROBLEM IN ATTEMPTING TO DISCHARGE ITS TRUST
OBLIGATIONS WITH RESPECT TO THOUSANDS UPON THOUSANDS OF SCATTERED
INDIAN ALLOTMENTS.  IN SOME CASES, THE ADEQUATE FULFILLMENT OF TRUST
RESPONSIBILITIES ON THESE ALLOTMENTS WOULD UNDOUBTEDLY INVOLVE
ADMINISTRATIVE COSTS RUNNING MANY TIMES THE INCOME VALUE OF THE
PROPERTY."  H.R. REP. NO. 2503, 82D CONG., 2D SESS., 23 (1952). 
RECOGNIZING THESE ADMINISTRATIVE BURDENS AND REALIZING THAT THE
INDIAN'S RIGHT TO SUE SHOULD NOT DEPEND ON THE GOOD JUDGMENT OR ZEAL OF
A GOVERNMENT ATTORNEY, THE UNITED STATES HAS INDICATED ITS SUPPORT OF
PETITIONERS' POSITION THAT INDIANS HAVE A CAPACITY TO SUE UNDER THE OIL
AND GAS LEASE.  /11/ 

THE REGULATIONS DO EMPOWER THE SECRETARY TO CANCEL A LEASE "FOR GOOD
CAUSE UPON APPLICATION OF THE LESSOR OR LESSEE, OR IF AT ANY TIME THE
SECRETARY IS SATISFIED THAT THE PROVISIONS OF THE LEASE OR OF ANY
REGULATIONS HERETOFORE OR HEREAFTER PRESCRIBED HAVE BEEN VIOLATED."  25
CFR 172.23 (1967).  HOWEVER, THERE IS NO JUSTIFICATION FOR CONCLUDING
THAT THE SEVERE SANCTION OF CANCELLATION OF THE LEASE IS THE ONLY
RELIEF FOR ALL BREACHES OF THE LEASE TERMS OR FOR ANY FAILURE TO PAY
ROYALTIES.  BOTH THE LESSOR AND THE LESSEE MAY WISH TO RESOLVE THEIR
DISAGREEMENT BY THE PAYMENT OF DAMAGES AND NOT BY THE CANCELLATION OF A
BASICALLY SATISFACTORY LEASE.     NOR IS THE CAPACITY OF THE INDIAN
DEFEATED BY SEC. 6 OF THE LEASE, WHICH PROVIDES THAT THE SECRETARY MAY
CANCEL THE LEASE "BEFORE RESTRICTIONS ARE REMOVED," AND CONCLUDES,
"PROVIDED, THAT AFTER RESTRICTIONS ARE REMOVED THE LESSOR SHALL HAVE
AND BE ENTITLED TO ANY AVAILABLE REMEDY IN LAW OR EQUITY FOR BREACH OF
THIS CONTRACT BY THE LESSEE."  /12/  THERE IS NO WARRANT FOR IMPLYING
BY NEGATIVE INFERENCE FROM THIS PROVISO A DENIAL OF ALL REMEDIES
OTHERWISE AVAILABLE TO THE INDIAN PRIOR TO THE REMOVAL OF THE FEDERAL
RESTRICTIONS ON HIS POWER TO ALIENATE THE LAND.  SECTION 6 MERELY
PROVIDES THAT WHEN THE FEDERAL RESTRICTIONS ON ALIENATION ARE
TERMINATED, THE FEDERAL SUPERVISION OVER THE LEASE WILL LIKEWISE COME
TO AN END, WITHOUT IMPAIRING THE CONTINUING RIGHTS OF THE INDIAN. 
COMPARE 25 CFR 172.28 (1967).  /13/ 

RESPONDENT'S ARGUMENT THAT THE JUDGMENT IN ITS FAVOR SHOULD BE
SUSTAINED ON AVAILABLE ADEQUATE STATE PROCEDURAL GROUNDS IS UNTENABLE. 
SINCE THE OKLAHOMA SUPREME COURT'S DECISION RESTED SOLELY ON FEDERAL
GROUNDS, THAT COURT MUST HAVE EITHER REJECTED OR FAILED TO REACH THE
ASSERTED STATE GROUNDS.  FURTHERMORE, WE INTIMATE NO VIEW ON THE MERITS
OF THE CASE.  IF THE LESSEE HAS CONFORMED TO ALL OF THE REQUIREMENTS OF
THE FEDERAL REGULATIONS AND HAS NOT BREACHED ANY OF THE TERMS OF THE
LEASE, THE SUIT MAY FAIL.  WE MERELY HOLD THAT THE INDIAN LESSORS HAVE
THE CAPACITY TO MAINTAIN AN ACTION SEEKING DAMAGES FOR THE ALLEGED
BREACH OF THE OIL AND GAS LEASE.  ACCORDINGLY, THE JUDGMENT OF THE
SUPREME COURT OF OKLAHOMA IS REVERSED AND THE CAUSE IS REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  THE AREA DIRECTOR OF THE BUREAU OF INDIAN AFFAIRS APPROVED A
CONTRACT BETWEEN PETITIONERS AND AN ATTORNEY FOR LEGAL SERVICES TO BE
RENDERED IN CONNECTION WITH THIS LITIGATION.  THE AREA DIRECTOR HAS
BEEN DELEGATED THE AUTHORITY TO APPROVE THE EMPLOYMENT OF ATTORNEYS FOR
INDIVIDUAL INDIANS WHO MAY BE COMPENSATED ON A QUANTUM MERUIT BASIS
FROM RESTRICTED TRUST FUNDS.  SECTION 269 OF ORDER 551 OF THE
COMMISSIONER OF INDIAN AFFAIRS, 16 FED.REG.  2939 (1951), AS AMENDED,
22 FED.REG.  6066 (1957). 

/2/  THE PETITION ALSO ALLEGED THAT THE WASTE OF NATURAL GAS
VIOLATED SEC. 86.3 OF THE OKLAHOMA OIL AND GAS CONSERVATION ACT.  OKLA.
STAT. TIT. 52, SEC. 86.3 (1951).  IN RESPONSE TO A MOTION TO REQUIRE
PETITIONERS TO ELECT BETWEEN OR STATE SEPARATELY A CAUSE OF ACTION
UNDER THE LEASE AND ONE BASED ON TORT, THE DISTRICT COURT, WITH THE
APPROVAL OF THE PARTIES, STRUCK THE ALLEGED VIOLATION OF THE
CONSERVATION STATUTE FROM THE PETITION.  AFTER PETITIONERS ANNOUNCED
THAT THE PETITION THEN STATED ONLY ONE CAUSE OF ACTION WHICH SOUGHT
RECOVERY FOR THE BREACH OF THE LEASE, THE DISTRICT COURT DENIED THE
MOTION. 

/3/ THE LEASE PROVIDES: 

"3.  IN CONSIDERATION OF THE FOREGOING, THE LESSEE HEREBY AGREES:

        .          . .          . 

"(F) DILIGENCE, PREVENTION OF WASTE.-- TO EXERCISE REASONABLE
DILIGENCE IN DRILLING AND OPERATING WELLS FOR OIL AND GAS ON THE LANDS
COVERED HEREBY, WHILE SUCH PRODUCTS CAN BE SECURED IN PAYING
QUANTITIES; TO CARRY ON ALL OPERATIONS HEREUNDER IN A GOOD AND
WORKMANLIKE MANNER IN ACCORDANCE WITH APPROVED METHODS AND PRACTICE,
HAVING DUE REGARD FOR THE PREVENTION OF WASTE OF OIL OR GAS DEVELOPED
ON THE LAND . . . " SEE 30 CFR 221.18, 221.35 (1967). 

/4/  THE OPINION OF THE OKLAHOMA SUPREME COURT IS NOT REPORTED. 

/5/  INDIANS ARE EXPRESSLY AUTHORIZED TO INSTITUTE PROCEEDINGS
AGAINST THE UNITED STATES TO ESTABLISH THEIR RIGHT TO AN ALLOTMENT.  25
U.S.C. 345. 

/6/  SEE NOTE FOLLOWING 25 U.S.C. 348.  AND SEE 25 U.S.C. 462, WHICH
PROVIDES:  "THE EXISTING PERIODS OF TRUST PLACED UPON ANY INDIAN LANDS
AND ANY RESTRICTION ON ALIENATION THEREOF ARE EXTENDED AND CONTINUED
UNTIL OTHERWISE DIRECTED BY CONGRESS." 

/7/  "THIS NATIONAL INTEREST IS NOT TO BE EXPRESSED IN TERMS OF
PROPERTY, OR TO BE LIMITED TO THE ASSERTION OF RIGHTS INCIDENT TO THE
OWNERSHIP OF A REVERSION OR TO THE HOLDING OF A TECHNICAL TITLE IN
TRUST."  HECKMAN V. UNITED STATES, 224 U.S. 413, 437 (1912), QUOTED
WITH APPROVAL IN UNITED STATES V. HELLARD, 322 U.S. 363, 366 (1944). 

/8/  INDIANS OF COURSE ARE NOW AUTHORIZED TO BRING CLAIMS AGAINST
THE UNITED STATES.  SEE INDIAN CLAIMS COMMISSION ACT, 60 STAT. 1049
(1946), 25 U.S.C. 70-70W.  FOR CLAIMS ARISING AFTER AUGUST 13, 1946,
SEE 29 U.S.C. 1505, CONFERRING JURISDICTION ON THE COURT OF CLAIMS. 

/9/  "(THE RIGHTS OF RESTRICTED INDIANS AND INDIAN TRIBES OR PUEBLOS
TO MAINTAIN ACTIONS WITH RESPECT TO THEIR LANDS ARE CLEARLY RECOGNIZED,
ALTHOUGH THE UNITED STATES MIGHT NOT BE BOUND BY A JUDGMENT IN SUCH AN
ACTION TO WHICH IT WAS NOT A PARTY."  FEDERAL INDIAN LAW 336 (1958). 

/10/  A PROVISO TO SEC. 396 DOES GIVE THE SECRETARY THE POWER TO
OFFER LEASES ON HIS OWN IF THE ALLOTTEE IS DECEASED AND THE HEIRS HAVE
NOT BEEN DETERMINED OR CANNOT BE FOUND.  25 U.S.C. 396. 

/11/  THE MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE STATES,
AT 7: 

"IN SUM, RESPONDENT'S CONTENTION THAT, UNTIL THE TRUSTEESHIP IS
ENDED, THE INDIAN LANDOWNERS ARE DISABLED FROM MAINTAINING SUIT FOR
BREACH OF A LEASE THEY HAVE GRANTED OF THEIR OWN PROPERTY IS
UNSUPPORTED IN THE GOVERNING STATUTES, THE IMPLEMENTING REGULATIONS, OR
THE TERMS OF THE LEASE." 

/12/  SECTION 6 OF THE LEASE PROVIDES: 

"6.  CANCELLATION AND FORDEITURE.-- WHEN, IN THE OPINION OF THE
SECRETARY OF THE INTERIOR, THERE HAS BEEN A VIOLATION OF ANY OF THE
TERMS AND CONDITIONS OF THIS LEASE BEFORE RESTRICTIONS ARE REMOVED, THE
SECRETARY OF THE INTERIOR SHALL HAVE THE RIGHT AT ANY TIME AFTER 30
DAYS NOTICE TO THE LESSEE, SPECIFYING THE TERMS AND CONDITIONS
VIOLATED, AND AFTER A HEARING, IF THE LESSEE SHALL SO REQUEST WITHIN 30
DAYS OF RECEIPT OF NOTICE, TO DECLARE THIS LEASE NULL AND VOID, AND THE
LESSOR SHALL THEN BE ENTITLED AND AUTHORIZED TO TAKE IMMEDIATE
POSSESSION OF THE LAND:  PROVIDED, THAT AFTER RESTRICTIONS ARE REMOVED
THE LESSOR SHALL HAVE AND BE ENTITLED TO ANY AVAILABLE REMEDY IN LAW OR
EQUITY FOR BREACH OF THIS CONTRACT BY THE LESSEE." 

/13/  THE REGULATION DEALING WITH THE REMOVAL OF RESTRICTIONS AVOIDS
THE DANGER OF A NEGATIVE INFERENCE BY STATING:  "OIL AND GAS LEASES . .
. ON LAND FROM ALL OF WHICH RESTRICTIONS AGAINST ALIENATION HAVE BEEN
OR SHALL BE REMOVED, EVEN IF SUCH LEASES CONTAIN PROVISIONS AUTHORIZING
SUPERVISION BY THE DEPARTMENT, SHALL, AFTER SUCH REMOVAL OF
RESTRICTIONS AGAINST ALIENATION, BE OPERATED ENTIRELY FREE FROM SUCH
SUPERVISION, AND THE AUTHORITY AND POWER DELEGATED TO THE SECRETARY OF
THE INTERIOR IN SAID LEASES SHALL CEASE . . . " 25 CFR 172.28 (1967). 

CHARLES HILL JOHNS ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON
THE BRIEFS WAS HOUSTON BUS HILL. 

JOHN H. CANTRELL ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS S. W. WELLS. 

SOLICITOR GENERAL GRISWOLD, ACTING ASSISTANT ATTORNEY GENERAL
WILLIAMS AND ROGER P. MARQUIS FILED A BRIEF FOR THE UNITED STATES, AS
AMICUS CURIAE, URGING REVERSAL. 
..END :






















SIMMONS V. UNITED STATES, 390 U.S. 377 


       SIMMONS ET AL. V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

   SEVENTH CIRCUIT. 

        NO. 55.  ARGUED JANUARY 15, 1968.-- DECIDED MARCH 18,
1968. 


A FEDERALLY INSURED SAVINGS AND LOAN ASSOCIATION (HEREAFTER "THE
BANK") WAS ROBBED BY TWO UNMASKED MEN.  FIVE BANK EMPLOYEES WITNESSED
THE ROBBERY, AND ON THE DAY IT OCCURRED GAVE THE FBI WRITTEN
STATEMENTS.  PETITIONERS, SIMMONS AND GARRETT, AND ANOTHER (ANDREWS)
WERE SUBSEQUENTLY INDICTED FOR THE CRIME.  IN THE AFTERNOON OF THE DAY
OF THE ROBBERY, FBI AGENTS MADE A WARRANTLESS SEARCH OF ANDREWS'
MOTHER'S HOUSE AND FOUND TWO SUITCASES IN THE BASEMENT, ONE OF WHICH
CONTAINED INCRIMINATING ITEMS.  THE NEXT MORNING FBI AGENTS OBTAINED
AND (WITHOUT INDICATING THE PROGRESS OF THE INVESTIGATION OR SUGGESTING
WHO THE SUSPECTS WERE) SHOWED SEPARATELY TO EACH OF THE FIVE BANK
EMPLOYEE WITNESSES SOME SNAPSHOTS CONSISTING MOSTLY OF GROUP PICTURES
OF ANDREWS, SIMMONS, AND OTHERS.  EACH WITNESS IDENTIFIED PICTURES OF
SIMMONS AS ONE OF THE ROBBERS.  NONE IDENTIFIED ANDREWS.  LATER SOME OF
THESE WITNESSES VIEWED INDETERMINATE NUMBERS OF PICTURES AND ALL
IDENTIFIED SIMMONS.  THREE OF THE EMPLOYEES IDENTIFIED GARRETT AS THE
SECOND ROBBER FROM OTHER PHOTOGRAPHS.  BEFORE TRIAL GARRETT MOVED TO
SUPPRESS THE GOVERNMENT'S EXHIBIT OF THE SUITCASE CONTAINING THE
INCRIMINATING ITEMS AS HAVING BEEN SEIZED IN VIOLATION OF HIS FOURTH
AMENDMENT RIGHTS.  TO ESTABLISH HIS STANDING SO TO MOVE, GARRETT
TESTIFIED THAT THE SUITCASE WAS SIMILAR TO ONE HE HAD OWNED AND THAT HE
OWNED THE CLOTHING FOUND THEREIN.  THE DISTRICT COURT DENIED THE MOTION
TO SUPPRESS.  GARRETT'S TESTIMONY AT THE "SUPPRESSION" HEARING WAS,
OVER HIS OBJECTION, ADMITTED AGAINST HIM AT TRIAL.  ALL FIVE BANK
EMPLOYEE WITNESSES POSITIVELY IDENTIFIED SIMMONS IN COURT AS ONE OF THE
ROBBERS AND THREE IDENTIFIED GARRETT, THE TWO OTHERS TESTIFYING THAT
THEY DID NOT GET A GOOD LOOK AT HIM.  THE DISTRICT COURT DENIED A
DEFENSE REQUEST UNDER 18 U.S.C. 3500 (THE JENCKS ACT) FOR THE
PRODUCTION OF THE PHOTOGRAPHS SHOWN TO THE WITNESSES BEFORE TRIAL, THE
DEFENSE APPARENTLY CLAIMING THAT THEY WERE INCORPORATED IN THE WRITTEN
STATEMENTS, WHICH THE GOVERNMENT HAD MADE AVAILABLE TO THE DEFENSE. 
THAT ACT PROVIDES THAT AFTER A WITNESS HAS TESTIFIED FOR THE GOVERNMENT
IN A FEDERAL CRIMINAL PROSECUTION THE GOVERNMENT MUST, ON A DEFENSE
REQUEST, PRODUCE ANY "STATEMENT OF THE WITNESS" IN THE GOVERNMENT'S
POSSESSION "WHICH RELATES TO THE SUBJECT MATTER AS TO WHICH THE WITNESS
HAS TESTIFIED."  PETITIONERS AND ANDREWS WERE CONVICTED.  EACH
PETITIONER'S CONVICTION (BUT NOT ANDREWS') WAS AFFIRMED BY THE COURT OF
APPEALS.  SIMMONS ASSERTS THAT THE PRETRIAL IDENTIFICATION PROCEDURE
THROUGH USE OF THE PHOTOGRAPHS WAS SO UNDULY PREJUDICIAL AS FATALLY TO
TAINT HIS CONVICTION.  BOTH PETITIONERS CLAIM ERROR IN THE DISTRICT
COURT'S REFUSAL TO ORDER PRODUCTION OF THE PICTURES UNDER THE JENCKS
ACT.  GARRETT URGES VIOLATION OF HIS CONSTITUTIONAL RIGHTS WHEN
TESTIMONY IN SUPPORT OF HIS "SUPPRESSION" MOTION WAS ADMITTED AGAINST
HIM AT TRIAL.  HELD: 

1.  IN THE LIGHT OF THE TOTALITY OF THE CIRCUMSTANCES SURROUNDING
THIS CASE, THE IDENTIFICATION PROCEDURE THROUGH USE OF THE PHOTOGRAPHS
WAS NOT SUCH AS TO DENY SIMMONS DUE PROCESS OF LAW OR TO CALL FOR
REVERSAL UNDER THE COURT'S SUPERVISORY AUTHORITY.  PP. 383-386. 

  (A) EACH CASE INVOLVING PRETRIAL INITIAL IDENTIFICATION BY
PHOTOGRAPHS MUST BE CONSIDERED ON ITS OWN FACTS; AND CONVICTIONS BASED
ON EYEWITNESS IDENTIFICATION AT TRIAL FOLLOWING SUCH PRETRIAL
IDENTIFICATION WILL BE SET ASIDE ON THE GROUND OF PREJUDICE ONLY IF THE
PRETRIAL IDENTIFICATION PROCEDURE WAS SO IMPERMISSIBLY SUGGESTIVE AS TO
GIVE RISE TO A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
MISIDENTIFICATION.  P. 384. 

  (B) HERE RESORT TO PHOTOGRAPHIC IDENTIFICATION BY THE FBI WAS
NECESSARY:  A SERIOUS FELONY HAD BEEN COMMITTED; THE PERPETRATORS WERE
AT LARGE; THE INCONCLUSIVE CLUES LED TO ANDREWS AND SIMMONS; AND THE
AGENTS HAD TO DETERMINE SWIFTLY IF THEY WERE ON THE RIGHT TRACK.  PP.
384-385. 

  (C) IN THE CIRCUMSTANCES OF THIS CASE THERE WAS LITTLE CHANCE
THAT THE PROCEDURE WOULD LEAD TO MISIDENTIFICATION OF SIMMONS.  PP. 385
386. 

2.  SINCE NONE OF THE PHOTOGRAPHS WAS ACQUIRED OR SHOWN TO THE
WITNESSES UNTIL THE DAY AFTER THE WITNESSES GAVE STATEMENTS TO THE FBI,
THE DISTRICT COURT CORRECTLY HELD THAT THE PHOTOGRAPHS WERE NOT PART OF
THOSE STATEMENTS AND HENCE NOT PRODUCIBLE FOR THE DEFENSE UNDER THE
JENCKS ACT.  P. 387. 

3.  IN VIEW OF ALL THE ATTENDANT CIRCUMSTANCES, INCLUDING THE
STRENGTH OF THE EYEWITNESS IDENTIFICATION OF SIMMONS, THE DISTRICT
COURT'S REFUSAL (APART FROM ANY REQUIREMENT OF THE JENCKS ACT) TO ORDER
PRODUCTION OF THE PHOTOGRAPHS WAS NOT AN ABUSE OF ITS DISCRETION AS TO
SIMMONS.  PP. 388-389. 

4.  WHEN A DEFENDANT TESTIFIES IN SUPPORT OF A MOTION TO SUPPRESS
EVIDENCE ON FOURTH AMENDMENT GROUNDS, HIS TESTIMONY MAY NOT BE
THEREAFTER ADMITTED AGAINST HIM AT TRIAL ON THE ISSUE OF GUILT UNLESS
HE MAKES NO OBJECTION.  PP. 389-394. 

  (A) GARRETT JUSTIFIABLY BELIEVED THAT HIS TESTIMONY THAT HE OWNED
THE SUITCASE WAS NECESSARY TO SHOW THAT HE HAD STANDING TO CLAIM THAT
IT WAS ILLEGALLY SEIZED; HENCE, THE TESTIMONY WAS AN INTEGRAL PART OF
HIS FOURTH AMENDMENT EXCLUSION CLAIM.  PP. 390-391. 

  (B) THE RATIONALE OF THE COURTS BELOW FOR THEIR HOLDINGS THAT
GARRETT'S TESTIMONY WAS ADMISSIBLE WHEN THE MOTION TO SUPPRESS HAD
FAILED WAS THAT THE TESTIMONY HAD BEEN "VOLUNTARILY" GIVEN AND RELEVANT
AND THEREFORE WAS ADMISSIBLE LIKE ANY OTHER PRIOR TESTIMONY OR
ADMISSION.  PP. 391-392. 

  (C) THIS RULE NOT ONLY IMPOSES A CONDITION WHICH MAY DETER A
DEFENDANT FROM MAKING A FOURTH AMENDMENT OBJECTION; AS A PRACTICAL
MATTER, IT MAKES A DEFENDANT WHO WISHES TO ESTABLISH STANDING DO SO AT
THE RISK THAT HIS WORDS MAY LATER BE USED TO INCRIMINATE HIM.  P. 393. 

  (D) IN THE CIRCUMSTANCES OF THIS CASE, IT IS INTOLERABLE THAT ONE
CONSTITUTIONAL RIGHT SHOULD HAVE TO BE SURRENDERED IN ORDER TO ASSERT
ANOTHER.  P. 394. 

371 F.2D 296, AFFIRMED IN PART, REVERSED AND REMANDED IN PART. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS ISSUES ARISING OUT OF THE PETITIONERS' TRIAL AND
CONVICTION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE ARMED ROBBERY OF A FEDERALLY INSURED
SAVINGS AND LOAN ASSOCIATION. 

THE EVIDENCE AT TRIAL SHOWED THAT AT ABOUT 1:45 P.M. ON FEBRUARY 27,
1964, TWO MEN ENTERED A CHICAGO SAVINGS AND LOAN ASSOCIATION.  ONE OF
THEM POINTED A GUN AT A TELLER AND ORDERED HER TO PUT MONEY INTO A SACK
WHICH THE GUNMAN SUPPLIED.  THE MEN REMAINED IN THE BANK ABOUT FIVE
MINUTES.  AFTER THEY LEFT, A BANK EMPLOYEE RUSHED TO THE STREET AND SAW
ONE OF THE MEN SITTING ON THE PASSENGER SIDE OF A DEPARTING WHITE 1960
THUNDERBIRD AUTOMOBILE WITH A LARGE SCRAPE ON THE RIGHT DOOR.  WITHIN
AN HOUR POLICE LOCATED IN THE VICINITY A CAR MATCHING THIS
DESCRIPTION.  THEY DISCOVERED THAT IT BELONGED TO A MRS. REY, SISTER-IN
LAW OF PETITIONER SIMMONS.  SHE TOLD THE POLICE THAT SHE HAD LOANED THE
CAR FOR THE AFTERNOON TO HER BROTHER, WILLIAM ANDREWS. 

AT ABOUT 5:15 P.M. THE SAME DAY, TWO FBI AGENTS CAME TO THE HOUSE OF
MRS. MAHON, ANDREWS' MOTHER, ABOUT HALF A BLOCK FROM THE PLACE WHERE
THE CAR WAS THEN PARKED.  /1/  THE AGENTS HAD NO WARRANT, AND AT TRIAL
IT WAS DISPUTED WHETHER MRS. MAHON GAVE THEM PERMISSION TO SEARCH THE
HOUSE.  THEY DID SEARCH, AND IN THE BASEMENT THEY FOUND TWO SUITCASES,
OF WHICH MRS. MAHON DISCLAIMED ANY KNOWLEDGE.  ONE SUITCASE CONTAINED,
AMONG OTHER ITEMS, A GUN HOLSTER, A SACK SIMILAR TO THE ONE USED IN THE
ROBBERY, AND SEVERAL COIN CARDS AND BILL WRAPPERS FROM THE BANK WHICH
HAD BEEN ROBBED. 

THE FOLLOWING MORNING THE FBI OBTAINED FROM ANOTHER OF ANDREWS'
SISTERS SOME SNAPSHOTS OF ANDREWS AND OF PETITIONER SIMMONS, WHO WAS
SAID BY THE SISTER TO HAVE BEEN WITH ANDREWS THE PREVIOUS AFTERNOON. 
THESE SNAPSHOTS WERE SHOWN TO THE FIVE BANK EMPLOYEES WHO HAD WITNESSED
THE ROBBERY.  EACH WITNESS IDENTIFIED PICTURES OF SIMMONS AS
REPRESENTING ONE OF THE ROBBERS.  A WEEK OR TWO LATER, THREE OF THESE
EMPLOYEES IDENTIFIED PHOTOGRAPHS OF PETITIONER GARRETT AS DEPICTING THE
OTHER ROBBER, THE OTHER TWO WITNESSES STATING THAT THEY DID NOT HAVE A
CLEAR VIEW OF THE SECOND ROBBER. 

THE PETITIONERS, TOGETHER WITH WILLIAM ANDREWS, SUBSEQUENTLY WERE
INDICTED AND TRIED FOR THE ROBBERY, AS INDICATED.  JUST PRIOR TO THE
TRIAL, GARRETT MOVED TO SUPPRESS THE GOVERNMENT'S EXHIBIT CONSISTING OF
THE SUITCASE CONTAINING THE INCRIMINATING ITEMS.  IN ORDER TO ESTABLISH
HIS STANDING SO TO MOVE, GARRETT TESTIFIED THAT, ALTHOUGH HE COULD NOT
IDENTIFY THE SUITCASE WITH CERTAINTY, IT WAS SIMILAR TO ONE HE HAD
OWNED, AND THAT HE WAS THE OWNER OF CLOTHING FOUND INSIDE THE
SUITCASE.  THE DISTRICT COURT DENIED THE MOTION TO SUPPRESS.  GARRETT'S
TESTIMONY AT THE "SUPPRESSION" HEARING WAS ADMITTED AGAINST HIM AT
TRIAL. 

DURING THE TRIAL, ALL FIVE BANK EMPLOYEE WITNESSES IDENTIFIED
SIMMONS AS ONE OF THE ROBBERS.  THREE OF THEM IDENTIFIED GARRETT AS THE
SECOND ROBBER, THE OTHER TWO TESTIFYING THAT THEY DID NOT GET A GOOD
LOOK AT THE SECOND ROBBER.  THE DISTRICT COURT DENIED THE PETITIONERS'
REQUEST UNDER 18 U.S.C. 3500 (THE SO-CALLED JENCKS ACT) FOR PRODUCTION
OF THE PHOTOGRAPHS WHICH HAD BEEN SHOWN TO THE WITNESSES BEFORE TRIAL. 

THE JURY FOUND SIMMONS AND GARRETT, AS WELL AS ANDREWS, GUILTY AS
CHARGED.  ON APPEAL, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
AFFIRMED AS TO SIMMONS AND GARRETT, BUT REVERSED THE CONVICTION OF
ANDREWS ON THE GROUND THAT THERE WAS INSUFFICIENT EVIDENCE TO CONNECT
HIM WITH THE ROBBERY.  371 F.2D 296. 

WE GRANTED CERTIORARI AS TO SIMMONS AND GARRETT, 388 U.S. 906, TO
CONSIDER THE FOLLOWING CLAIMS.  FIRST, SIMMONS ASSERTS THAT HIS
PRETRIAL IDENTIFICATION BY MEANS OF PHOTOGRAPHS WAS IN THE
CIRCUMSTANCES SO UNNECESSARILY SUGGESTIVE AND CONDUCIVE TO
MISIDENTIFICATION AS TO DENY HIM DUE PROCESS OF LAW, OR AT LEAST TO
REQUIRE REVERSAL OF HIS CONVICTION IN THE EXERCISE OF OUR SUPERVISORY
POWER OVER THE LOWER FEDERAL COURTS.  SECOND, BOTH PETITIONERS CONTEND
THAT THE DISTRICT COURT ERRED IN REFUSING DEFENSE REQUESTS FOR
PRODUCTION UNDER 18 U.S.C. 3500 OF THE PICTURES OF THE PETITIONERS
WHICH WERE SHOWN TO EYEWITNESSES PRIOR TO TRIAL.  THIRD, GARRETT URGES
THAT HIS CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN TESTIMONY GIVEN BY
HIM IN SUPPORT OF HIS "SUPPRESSION"  MOTION WAS ADMITTED AGAINST HIM AT
TRIAL.  FOR REASONS WHICH FOLLOW, WE AFFIRM THE JUDGMENT OF THE COURT
OF APPEALS AS TO SIMMONS, BUT REVERSE AS TO GARRETT. 

        I. 

THE FACTS AS TO THE IDENTIFICATION CLAIM ARE THESE.  AS HAS BEEN
NOTED PREVIOUSLY, FBI AGENTS ON THE DAY FOLLOWING THE ROBBERY OBTAINED
FROM ANDREWS' SISTER A NUMBER OF SNAPSHOTS OF ANDREWS AND SIMMONS. 
THERE SEEM TO HAVE BEEN AT LEAST SIX OF THESE PICTURES, CONSISTING
MOSTLY OF GROUP PHOTOGRAPHS OF ANDREWS, SIMMONS, AND OTHERS.  LATER THE
SAME DAY, THESE WERE SHOWN TO THE FIVE BANK EMPLOYEES WHO HAD WITNESSED
THE ROBBERY AT THEIR PLACE OF WORK, THE PHOTOGRAPHS BEING EXHIBITED TO
EACH EMPLOYEE SEPARATELY.  EACH OF THE FIVE EMPLOYEES IDENTIFIED
SIMMONS FROM THE PHOTOGRAPHS.  AT LATER DATES, SOME OF THESE WITNESSES
WERE AGAIN INTERVIEWED BY THE FBI AND SHOWN INDETERMINATE NUMBERS OF
PICTURES.  AGAIN, ALL IDENTIFIED SIMMONS.  AT TRIAL, THE GOVERNMENT DID
NOT INTRODUCE ANY OF THE PHOTOGRAPHS, BUT RELIED UPON IN-COURT
IDENTIFICATION BY THE FIVE EYEWITNESSES, EACH OF WHOM SWORE THAT
SIMMONS WAS ONE OF THE ROBBERS. 

IN SUPPORT OF HIS ARGUMENT, SIMMONS LOOKS TO LAST TERM'S "LINEUP"
DECISIONS-- UNITED STATES V. WADE, 388 U.S. 218, AND GILBERT V.
CALIFORNIA, 388 U.S. 263-- IN WHICH THIS COURT FIRST DEPARTED FROM THE
RULE THAT THE MANNER OF AN EXTRA-JUDICIAL IDENTIFICATION AFFECTS ONLY
THE WEIGHT, NOT THE ADMISSIBILITY, OF IDENTIFICATION TESTIMONY AT
TRIAL.  THE RATIONALE OF THOSE CASES WAS THAT AN ACCUSED IS ENTITLED TO
COUNSEL AT ANY "CRITICAL STAGE OF THE PROSECUTION," AND THAT A POST
INDICTMENT LINEUP IS SUCH A "CRITICAL STAGE."  SEE 388 U.S.,AT 236
237.  SIMMONS, HOWEVER, DOES NOT CONTEND THAT HE WAS ENTITLED TO
COUNSEL AT THE TIME THE PICTURES WERE SHOWN TO THE WITNESSES.  RATHER,
HE ASSERTS SIMPLY THAT IN THE CIRCUMSTANCES THE IDENTIFICATION
PROCEDURE WAS SO UNDULY PREJUDICIAL AS FATALLY TO TAINT HIS
CONVICTION.  THIS IS A CLAIM WHICH MUST BE EVALUATED IN LIGHT OF THE
TOTALITY OF SURROUNDING CIRCUMSTANCES.  SEE STOVALL V. DENNO, 388 U.S.
293,AT 302; PALMER V. PEYTON, 359 F.2D 199.  VIEWED IN THAT CONTEXT, WE
FIND THE CLAIM UNTENABLE. 

IT MUST BE RECOGNIZED THAT IMPROPER EMPLOYMENT OF PHOTOGRAPHS BY
POLICE MAY SOMETIMES CAUSE WITNESSES TO ERR IN IDENTIFYING CRIMINALS. 
A WITNESS MAY HAVE OBTAINED ONLY A BRIEF GLIMPSE OF A CRIMINAL, OR MAY
HAVE SEEN HIM UNDER POOR CONDITIONS.  EVEN IF THE POLICE SUBSEQUENTLY
FOLLOW THE MOST CORRECT PHOTOGRAPHIC IDENTIFICATION PROCEDURES AND SHOW
HIM THE PICTURES OF A NUMBER OF INDIVIDUALS WITHOUT INDICATING WHOM
THEY SUSPECT, THERE IS SOME DANGER THAT THE WITNESS MAY MAKE AN
INCORRECT IDENTIFICATION.  THIS DANGER WILL BE INCREASED IF THE POLICE
DISPLAY TO THE WITNESS ONLY THE PICTURE OF A SINGLE INDIVIDUAL WHO
GENERALLY RESEMBLES THE PERSON HE SAW, OR IF THEY SHOW HIM THE PICTURES
OF SEVERAL PERSONS AMONG WHICH THE PHOTOGRAPH OF A SINGLE SUCH
INDIVIDUAL RECURS OR IS IN SOME WAY EMPHASIZED.  /2/  THE CHANCE OF
MISIDENTIFICATION IS ALSO HEIGHTENED IF THE POLICE INDICATE TO THE
WITNESS THAT THEY HAVE OTHER EVIDENCE THAT ONE OF THE PERSONS PICTURED
COMMITTED THE CRIME.  /3/  REGARDLESS OF HOW THE INITIAL
MISIDENTIFICATION COMES ABOUT, THE WITNESS THEREAFTER IS APT TO RETAIN
IN HIS MEMORY THE IMAGE OF THE PHOTOGRAPH RATHER THAN OF THE PERSON
ACTUALLY SEE, REDUCING THE TRUSTWORTHINESS OF SUBSEQUENT LINEUP OR
COURTROOM IDENTIFICATION.  /4/ 

DESPITE THE HAZARDS OF INITIAL IDENTIFICATION BY PHOTOGRAPH, THIS
PROCEDURE HAS BEEN USED WIDELY AND EFFECTIVELY IN CRIMINAL LAW
ENFORCEMENT, FROM THE STANDPOINT BOTH OF APPREHENDING OFFENDERS AND OF
SPARING INNOCENT SUSPECTS THE IGNOMINY OF ARREST BY ALLOWING
EYEWITNESSES TO EXONERATE THEM THROUGH SCRUTINY OF PHOTOGRAPHS.  THE
DANGER THAT USE OF THE TECHNIQUE MAY RESULT IN CONVICTIONS BASED ON
MISIDENTIFICATION MAY BE SUBSTANTIALLY LESSENED BY A COURSE OF CROSS
EXAMINATION AT TRIAL WHICH EXPOSES TO THE JURY THE METHOD'S POTENTIAL
FOR ERROR.  WE ARE UNWILLING TO PROHIBIT ITS EMPLOYMENT, EITHER IN THE
EXERCISE OF OUR SUPERVISORY POWER OR, STILL LESS, AS A MATTER OF
CONSTITUTIONAL REQUIREMENT.  INSTEAD, WE HOLD THAT EACH CASE MUST BE
CONSIDERED ON ITS OWN FACTS, AND THAT CONVICTIONS BASED ON EYEWITNESS
IDENTIFICATION AT TRIAL FOLLOWING A PRETRIAL IDENTIFICATION BY
PHOTOGRAPH WILL BE SET ASIDE ON THAT FROUND ONLY IF THE PHOTOGRAPHIC
IDENTIFICATION PROCEDURE WAS SO IMPERMISSIBLY SUGGESTIVE AS TO GIVE
RISE TO A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
MISIDENTIFICATION.  THIS STANDARD ACCORDS WITH OUR RESOLUTION OF A
SIMILAR ISSUE IN STOVALL V. DENNO.  388 U.S. 293, 301-302, AND WITH
DECISIONS OF OTHER COURTS ON THE QUESTION OF IDENTIFICATION BY
PHOTOGRAPH.  /5/ 

APPLYING THE STANDARD TO THIS CASE, WE CONCLUDE THAT PETITIONER
SIMMONS' CLAIM ON THIS SCORE MUST FAIL.  IN THE FIRST PLACE, IT IS NOT
SUGGESTED THAT IT WAS UNNECESSARY FOR THE FBI TO RESORT TO PHOTOGRAPHIC
IDENTIFICATION IN THIS INSTANCE.  A SERIOUS FELONY HAD BEEN COMMITTED. 
THE PERPETRATORS WERE STILL AT LARGE.  THE INCONCLUSIVE CLUES WHICH LAW
ENFORCEMENT OFFICIALS POSSESSED LED TO ANDREWS AND SIMMONS.  IT WAS
ESSENTIAL FOR THE FBI AGENTS SWIFTLY TO DETERMINE WHETHER THEY WERE ON
THE RIGHT TRACK, SO THAT THEY COULD PROPERLY DEPLOY THEIR FORCES IN
CHICAGO AND, IF NECESSARY, ALERT OFFICIALS IN OTHER CITIES.  THE
JUSTIFICATION FOR THIS METHOD OF PROCEDURE WAS HARDLY LESS COMPELLING
THAN THAT WHICH WE FOUND TO JUSTIFY THE "ONE-MAN LINEUP" IN STOVALL V.
DENNO, SUPRA. 

IN THE SECOND PLACE, THERE WAS IN THE CIRCUMSTANCES OF THIS CASE
LITTLE CHANCE THAT THE PROCEDURE UTILIZED LED TO MISIDENTIFICATION OF
SIMMONS.  THE ROBBERY TOOK PLACE IN THE AFTERNOON IN A WELL-LIGHTED
BANK.  THE ROBBERS WORE NO MASKS.  FIVE BANK EMPLOYEES HAD BEEN ABLE TO
SEE THE ROBBER LATER IDENTIFIED AS SIMMONS FOR PERIODS RANGING UP TO
FIVE MINUTES.  THOSE WITNESSES WERE SHOWN THE PHOTOGRAPHS ONLY A DAY
LATER, WHILE THEIR MEMORIES WERE STILL FRESH.  AT LEAST SIX PHOTOGRAPHS
WERE DISPLAYED TO EACH WITNESS.  APPARENTLY, THESE CONSISTED PRIMARILY
OF GROUP PHOTOGRAPHS, WITH SIMMONS AND ANDREWS EACH APPEARING SEVERAL
TIMES IN THE SERIES.  EACH WITNESS WAS ALONE WHEN HE OR SHE SAW THE
PHOTOGRAPHS.  THERE IS NO EVIDENCE TO INDICATE THAT THE WITNESSES WERE
TOLD ANYTHING ABOUT THE PROGRESS OF THE INVESTIGATION, OR THAT THE FBI
AGENTS IN ANY OTHER WAY SUGGESTED WHICH PERSONS IN THE PICTURES WERE
UNDER SUSPICION. 

UNDER THESE CONDITIONS, ALL FIVE EYEWITNESSES IDENTIFIED SIMMONS AS
ONE OF THE ROBBERS.  NONE IDENTIFIED ANDREWS, WHO APPARENTLY WAS AS
PROMINENT IN THE PHOTOGRAPHS AS SIMMONS.  THESE INITIAL IDENTIFICATIONS
WERE CONFIRMED BY ALL FIVE WITNESSES IN SUBSEQUENT VIEWINGS OF
PHOTOGRAPHS AND AT TRIAL, WHERE EACH WITNESS IDENTIFIED SIMMONS IN
PERSON.  NOTWITHSTANDING CROSS-EXAMINATION, NONE OF THE WITNESSES
DISPLAYED ANY DOUBT ABOUT THEIR RESPECTIVE IDENTIFICATIONS OF SIMMONS. 
TAKEN TOGETHER, THESE CIRCUMSTANCES LEAVE LITTLE ROOM FOR DOUBT THAT
THE IDENTIFICATION OF SIMMONS WAS CORRECT, EVEN THOUGH THE
IDENTIFICATION PROCEDURE EMPLOYED MAY HAVE IN SOME RESPECTS FALLEN
SHORT OF THE IDEAL.  /6/  WE HOLD THAT IN THE FACTUAL SURROUNDINGS OF
THIS CASE THE IDENTIFICATION PROCEDURE USED WAS NOT SUCH AS TO DENY
SIMMONS DUE PROCESS OF LAW OR TO CALL FOR REVERSAL UNDER OUR
SUPERVISORY AUTHORITY. 

        II. 

IT IS NEXT CONTENDED, BY BOTH PETITIONERS, THAT IN ANY EVENT THE
DISTRICT COURT ERRED IN REFUSING A DEFENSE REQUEST THAT THE PHOTOGRAPHS
SHOWN TO THE WITNESSES PRIOR TO TRIAL BE TURNED OVER TO THE DEFENSE FOR
PURPOSES OF CROSS-EXAMINATION.  THIS CLAIM TO PRODUCTION IS BASED ON 18
U.S.C. 3500, THE SO-CALLED JENCKS ACT.  THAT ACT, PASSED IN RESPONSE TO
THIS COURT'S DECISION IN JENCKS V. UNITED STATES, 353 U.S. 657,
PROVIDES THAT AFTER A WITNESS HAS TESTIFIED FOR THE GOVERNMENT IN A
FEDERAL CRIMINAL PROSECUTION THE GOVERNMENT MUST, ON REQUEST OF THE
DEFENSE, PRODUCE ANY "STATEMENT . . . OF THE WITNESS IN THE POSSESSION
OF THE UNITED STATES WHICH RELATES TO THE SUBJECT MATTER AS TO WHICH
THE WITNESS HAS TESTIFIED."  FOR THE ACT'S PURPOSES, AS THEY RELATE TO
THIS CASE, A "STATEMENT" IS DEFINED AS "A WRITTEN STATEMENT MADE BY
SAID WITNESS AND SIGNED OR OTHERWISE ADOPTED OR APPROVED BY HIM . . .
" 

WRITTEN STATEMENTS OF THIS KIND WERE TAKEN FROM ALL FIVE
EYEWITNESSES BY THE FBI ON THE DAY OF THE ROBBERY.  APPARENTLY NONE
WERE TAKEN THEREAFTER.  WHEN THESE STATEMENTS WERE PRODUCED BY THE
GOVERNMENT AT TRIAL PURSUANT TO SEC. 3500, THE DEFENSE ALSO CLAIMED THE
RIGHT TO LOOK AT THE PHOTOGRAPHS "UNDER 3500."  THE DISTRICT JUDGE
DENIED THESE REQUESTS. 

THE PETITIONERS' THEORY SEEMS TO BE THAT THE PHOTOGRAPHS WERE
INCORPORATED IN THE WRITTEN STATEMENTS OF THE WITNESSES, AND THAT THEY
THEREFORE HAD TO BE PRODUCED UNDER SEC. 3500.  THE LEGISLATIVE HISTORY
OF THE JENCKS ACT DOES CONFIRM THAT PHOTOGRAPHS MUST BE PRODUCED IF
THEY CONSTITUTE A PART OF A WRITTEN STATEMENT.  /7/  HOWEVER, THE
RECORD IN THIS CASE DOES NOT BEAR OUT THE PETITIONERS' CLAIM THAT THE
PICTURES INVOLVED HERE WERE PART OF THE STATEMENTS WHICH WERE APPROVED
BY THE WITNESSES AND, THEREFORE, PRODUCIBLE UNDER SEC. 3500.  IT
APPEARS THAT ALL SUCH STATEMENTS WERE MADE ON THE DAY OF THE ROBBERY. 
AT THAT TIME, THE FBI AND POLICE HAD NO PICTURES OF THE PETITIONERS. 
THE FIRST PICTURES WERE NOT ACQUIRED AND SHOWN TO THE WITNESSES UNTIL
THE MORNING OF THE FOLLOWING DAY.  HENCE, THEY COULD NOT POSSIBLY HAVE
BEEN A PART OF THE STATEMENTS MADE AND APPROVED BY THE WITNESSES THE
DAY OF THE ROBBERY.     THE PETITIONERS SEEM ALSO TO SUGGEST THAT,
QUITE APART FROM SEC. 3500, THE DISTRICT COURT'S REFUSAL OF THEIR
REQUEST FOR THE PHOTOGRAPHS AMOUNTED TO AN ABUSE OF DISCRETION.  THE
PHOTOGRAPHS WERE NOT REFERRED TO BY THE GOVERNMENT IN ITS CASE-IN
CHIEF.  THEY WERE FIRST ASKED FOR BY THE DEFENSE AFTER THE DIRECT
EXAMINATION OF THE FIRST EYEWITNESS, ON THE SECOND DAY OF THE TRIAL. 
WHEN THE DEFENSE REQUESTED THE PICTURES, COUNSEL FOR THE GOVERNMENT
NOTED THAT THERE WERE A "MULTITUDE" OF PICTURES AND STATED THAT IT
MIGHT BE DIFFICULT TO IDENTIFY THOSE WHICH WERE SHOWN TO PARTICULAR
WITNESSES.  HOWEVER, HE INDICATED THAT THE GOVERNMENT WAS WILLING TO
FURNISH ALL OF THE PICTURES, IF THEY COULD BE FOUND.  THE DISTRICT
COURT, REFERRING TO THE FACT THAT PRODUCTION OF THE PHOTOGRAPHS WAS NOT
REQUIRED UNDER SEC. 3500, STATED THAT IT WOULD NOT STOP THE TRIAL IN
ORDER TO HAVE THE PICTURES MADE AVAILABLE. 

ALTHOUGH THE PICTURES MIGHT HAVE BEEN OF SOME ASSISTANCE TO THE
DEFENSE, AND ALTHOUGH IT DOUBTLESS WOULD HAVE BEEN PREFERABLE FOR THE
GOVERNMENT TO HAVE LABELED THE PICTURES SHOWN TO EACH WITNESS AND KEPT
THEM AVAILABLE FOR TRIAL, /8/  WE HOLD THAT IN THE CIRCUMSTANCES THE
REFUSAL OF THE DISTRICT COURT TO ORDER THEIR PRODUCTION DID NOT AMOUNT
TO AN ABUSE OF DISCRETION, AT LEAST AS TO PETITIONER SIMMONS.  /9/  THE
DEFENSE SURELY KNEW THAT PHOTOGRAPHS HAD PLAYED A ROLE IN THE
IDENTIFICATION PROCESS.  YET THERE WAS NO ATTEMPT TO HAVE THE PICTURES
PRODUCED PRIOR TO TRIAL PURSUANT TO FED. RULE CRIM. PROC. 16.  WHEN
PRODUCTION OF THE PICTURES WAS SOUGHT AT TRIAL, THE DEFENSE DID NOT
EXPLAIN WHY THEY WERE NEEDED, BUT SIMPLY ARGUED THAT PRODUCTION WAS
REQUIRED UNDER SEC. 3500.  MOREOVER, THE STRENGTH OF THE EYEWITNESS
IDENTIFICATIONS OF SIMMONS RENDERS IT HIGHLY UNLIKELY THAT
NONPRODUCTION OF THE PHOTOGRAPHS CAUSED HIM ANY PREJUDICE. 

        III. 

FINALLY, IT IS CONTENDED THAT IT WAS REVERSIBLE ERROR TO ALLOW THE
GOVERNMENT TO USE AGAINST GARRETT ON THE ISSUE OF GUILT THE TESTIMONY
GIVEN BY HIM UPON HIS UNSUCCESSFUL MOTION TO SUPPRESS AS EVIDENCE THE
SUITCASE SEIZED FROM MRS. MAHON'S BASEMENT AND ITS CONTENTS.  THAT
TESTIMONY ESTABLISHED THAT GARRETT WAS THE OWNER OF THE SUITCASE. 
/10/ 

IN ORDER TO EFFECTUATE THE FOURTH AMENDMENT'S GUARANTEE OF FREEDOM
FROM UNREASONABLE SEARCHES AND SEIZURES, THIS COURT LONG AGO CONFERRED
UPON DEFENDANTS IN FEDERAL PROSECUTIONS THE RIGHT, UPON MOTION AND
PROOF, TO HAVE EXCLUDED FROM TRIAL EVIDENCE WHICH HAD BEEN SECURED BY
MEANS OF AN UNLAWFUL SEARCH AND SEIZURE.  WEEKS V. UNITED STATES, 232
U.S. 383.  MORE RECENTLY, THIS COURT HAS HELD THAT "THE EXCLUSIONARY
RULE IS AN ESSENTIAL PART OF BOTH THE FOURTH AND FOURTEENTH AMENDMENTS
. . . " MAPP V. OHIO, 367 U.S. 643, 657. 

HOWEVER, WE HAVE ALSO HELD THAT RIGHTS ASSURED BY THE FOURTH
AMENDMENT ARE PERSONAL RIGHTS, AND THAT THEY MAY BE ENFORCED BY
EXCLUSION OF EVIDENCE ONLY AT THE INSTANCE OF ONE WHOSE OWN PROTECTION
WAS INFRINGED BY THE SEARCH AND SEIZURE.  SEE, E.G., JONES V. UNITED
STATES, 362 U.S. 257, 260-261.  AT ONE TIME, A DEFENDANT WHO WISHED TO
ASSERT A FOURTH AMENDMENT OBJECTION WAS REQUIRED TO SHOW THAT HE WAS
THE OWNER OR POSSESSOR OF THE SEIZED PROPERTY OR THAT HE HAD A
POSSESSORY INTEREST IN THE SEARCHED PREMISES.  /11/  IN PART TO AVOID
HAVING TO RESOLVE THE ISSUE PRESENTED BY THIS CASE, WE RELAXED THOSE
STANDING REQUIREMENTS IN TWO ALTERNATIVE WAYS IN JONES V. UNITED
STATES, SUPRA.  FIRST, WE HELD THAT WHEN, AS IN JONES, POSSESSION OF
THE SEIZED EVIDENCE IS ITSELF AN ESSENTIAL ELEMENT OF THE OFFENSE WITH
WHICH THE DEFENDANT IS CHARGED, THE GOVERNMENT IS PRECLUDED FROM
DENYING THAT THE DEFENDANT HAS THE REQUISITE POSSESSORY INTEREST TO
CHALLENGE THE ADMISSION OF THE EVIDENCE.  SECOND, WE HELD ALTERNATIVELY
THAT THE DEFENDANT NEED HAVE NO POSSESSORY INTEREST IN THE SEARCHED
PREMISES IN ORDER TO HAVE STANDING; IT IS SUFFICIENT THAT HE BE
LEGITIMATELY ON THOSE PREMISES WHEN THE SEARCH OCCURS.  THROUGHOUT THIS
CASE, PETITIONER GARRETT HAS JUSTIFIABLY, AND WITHOUT CHALLENGE FROM
THE GOVERNMENT, PROCEEDED ON THE ASSUMPTION THAT THE STANDING
REQUIREMENTS MUST BE SATISFIED.  /12/  ON THAT PREMISE, HE CONTENDS
THAT TESTIMONY GIVEN BY A DEFENDANT TO MEET SUCH REQUIREMENTS SHOULD
NOT BE ADMISSIBLE AGAINST HIM AT TRIAL ON THE QUESTION OF GUILT OR
INNOCENCE.  WE AGREE. 

UNDER THE STANDING RULES SET OUT IN JONES, THERE WILL BE OCCASIONS,
EVEN IN PROSECUTIONS FOR NONPOSSESSORY OFFENSES, WHEN A DEFENDANT'S
TESTIMONY WILL BE NEEDED TO ESTABLISH STANDING.  THIS CASE SERVES AS AN
EXAMPLE.  GARRETT EVIDENTLY WAS NOT IN MRS. MAHON'S HOUSE AT THE TIME
HIS SUITCASE WAS SEIZED FROM HER BASEMENT.  THE ONLY, OR AT LEAST THE
MOST NATURAL, WAY IN WHICH HE COULD FOUND STANDING TO OBJECT TO THE
ADMISSION OF THE SUITCASE WAS TO TESTIFY THAT HE WAS ITS OWNER.  /13/
THUS, HIS TESTIMONY IS TO BE REGARDED AS AN INTEGRAL PART OF HIS FOURTH
AMENDMENT EXCLUSION CLAIM.  UNDER THE RULE LAID DOWN BY THE COURTS
BELOW, HE COULD GIVE THAT TESTIMONY ONLY BY ASSUMING THE RISK THAT THE
TESTIMONY WOULD LATER BE ADMITTED AGAINST HIM AT TRIAL.  TESTIMONY OF
THIS KIND, WHICH LINKS A DEFENDANT TO EVIDENCE WHICH THE GOVERNMENT
CONSIDERS IMPORTANT ENOUGH TO SEIZE AND TO SEEK TO HAVE ADMITTED AT
TRIAL, MUST OFTEN BE HIGHLY PREJUDICIAL TO A DEFENDANT.  THIS CASE
AGAIN SERVES AS AN EXAMPLE, FOR GARRETT'S ADMITTED OWNERSHIP OF A
SUITCASE WHICH ONLY A FEW HOURS AFTER THE ROBBERY WAS FOUND TO CONTAIN
MONEY WARPPERS TAKEN FROM THE VICTIMIZED BANK WAS UNDOUBTEDLY A STRONG
PIECE OF EVIDENCE AGAINST HIM.  WITHOUT HIS TESTIMONY, THE GOVERNMENT
MIGHT HAVE FOUND IT HARD TO PROVE THAT HE WAS THE OWNER OF THE
SUITCASE.  /14/ 

THE DILEMMA FACED BY DEFENDANTS LIKE GARRETT IS MOST EXTREME IN
PROSECUTIONS FOR POSSESSORY CRIMES, FOR THEN THE TESTIMONY REQUIRED FOR
STANDING ITSELF PROVES AN ELEMENT OF THE OFFENSE.  WE ELIMINATED THAT
HOBSON'S CHOICE IN JONES V. UNITED STATES, SUPRA, BY RELAXING THE
STANDING REQUIREMENTS.  THIS COURT HAS NEVER CONSIDERED SQUARELY THE
QUESTION WHETHER DEFENDANTS CHARGED WITH NONPOSSESSORY CRIMES, LIKE
GARRETT, ARE ENTITLED TO BE RELIEVED OF THEIR DILEMMA ENTIRELY.  /15/
THE LOWER COURTS WHICH HAVE CONSIDERED THE MATTER, BOTH BEFORE AND
AFTER JONES, HAVE WITH TWO EXCEPTIONS AGREED WITH THE HOLDINGS OF THE
COURTS BELOW THAT THE DEFENDANT'S TESTIMONY MAY BE ADMITTED WHEN, AS
HERE, THE MOTION TO SUPPRESS HAS FAILED.  /16/  THE REASONING OF SOME
OF THESE COURTS WOULD SEEM TO SUGGEST THAT THE TESTIMONY WOULD BE
ADMISSIBLE EVEN IF THE MOTION TO SUPPRESS HAD SUCCEEDED, /17/ BUT THE
ONLY COURT WHICH HAS ACTUALLY DECIDED THAT QUESTION HELD THAT WHEN THE
MOTION TO SUPPRESS SUCCEEDS THE TESTIMONY GIVEN IN SUPPORT OF IT IS
EXCLUDABLE AS A "FRUIT" OF THE UNLAWFUL SEARCH.  /18/  THE RATIONALE
FOR ADMITTING THE TESTIMONY WHEN THE MOTION FAILS HAS BEEN THAT THE
TESTIMONY IS VOLUNTARILY GIVEN AND RELEVANT, AND THAT IT IS THEREFORE
ENTITLED TO ADMISSION ON THE SAME BASIS AS ANY OTHER PRIOR TESTIMONY OR
ADMISSION OF A PARTY.  /19/ 

IT SEEMS OBVIOUS THAT A DEFENDANT WHO KNOWS THAT HIS TESTIMONY MAY
BE ADMISSIBLE AGAINST HIM AT TRIAL WILL SOMETIMES BE DETERRED FROM
PRESENTING THE TESTIMONIAL PROOF OF STANDING NECESSARY TO ASSERT A
FOURTH AMENDMENT CLAIM.  THE LIKELIHOOD OF INHIBITION IS GREATEST WHEN
THE TESTIMONY IS KNOWN TO BE ADMISSIBLE REGARDLESS OF THE OUTCOME OF
THE MOTION TO SUPPRESS.  BUT EVEN IN JURISDICTIONS WHERE THE
ADMISSIBILITY OF THE TESTIMONY DEPENDS UPON THE OUTCOME OF THE MOTION,
THERE WILL BE A DETERRENT EFFECT IN THOSE MARGINAL CASES IN WHICH IT
CANNOT BE ESTIMATED WITH CONFIDENCE WHETHER THE MOTION WILL SUCCEED. 
SINCE SEARCH-AND-SEIZURE CLAIMS DEPEND HEAVILY UPON THEIR INDIVIDUAL
FACTS, /20/  AND SINCE THE LAW OF SEARCH AND SEIZURE IS IN A STATE OF
FLUX, /21/  THE INCIDENCE OF SUCH MARGINAL CASES CANNOT BE SAID TO BE
NEGLIGIBLE.  IN SUCH CIRCUMSTANCES, A DEFENDANT WITH A SUBSTANTIAL
CLAIM FOR THE EXCLUSION OF EVIDENCE MAY CONCLUDE THAT THE ADMISSION OF
THE EVIDENCE, TOGETHER WITH THE GOVERNMENT'S PROOF LINKING IT TO HIM,
IS PREFERABLE TO RISKING THE ADMISSION OF HIS OWN TESTIMONY CONNECTING
HIMSELF WITH THE SEIZED EVIDENCE. 

THE RULE ADOPTED BY THE COURTS BELOW DOES NOT MERELY IMPOSE UPON A
DEFENDANT A CONDITION WHICH MAY DETER HIM FROM ASSERTING A FOURTH
AMENDMENT OBJECTION-- IT IMPOSES A CONDITION OF A KIND TO WHICH THIS
COURT HAS ALWAYS BEEN PECULIARLY SENSITIVE.  FOR A DEFENDANT WHO WISHES
TO ESTABLISH STANDING MUST DO SO AT THE RISK THAT THE WORDS WHICH HE
UTTERS MAY LATER BE USED TO INCRIMINATE HIM.  THOSE COURTS WHICH HAVE
ALLOWED THE ADMISSION OF TESTIMONY GIVEN TO ESTABLISH STANDING HAVE
REASONED THAT THERE IS NO VIOLATION OF THE FIFTH AMENDMENT'S SELF
INCRIMINATION CLAUSE BECAUSE THE TESTIMONY WAS VOLUNTARY.  /22/  AS AN
ABSTRACT MATTER, THIS MAY WELL BE TRUE.  A DEFENDANT IS "COMPELLED" TO
TESTIFY IN SUPPORT OF A MOTION TO SUPRESS ONLY IN THE SENSE THAT IF HE
REFRAINS FROM TESTIFYING HE WILL HAVE TO FORGO A BENEFIT, AND TESTIMONY
IS NOT ALWAYS INVOLUNTARY AS A MATTER OF LAW SIMPLY BECAUSE IT IS GIVEN
TO OBTAIN A BENEFIT.  /23/  HOWEVER, THE ASSUMPTION WHICH UNDERLIES
THIS REASONING IS THAT THE DEFENDANT HAS A CHOICE:  HE MAY REFUSE TO
TESTIFY AND GIVE UP THE BENEFIT.  /24/  WHEN THIS ASSUMPTION IS APPLIED
TO A SITUATION IN WHICH THE "BENEFIT" TO BE GAINED IS THAT AFFORDED BY
ANOTHER PROVISION OF THE BILL OF RIGHTS, AN UNDENIABLE TENSION IS
CREATED.  THUS, IN THIS CASE GARRETT WAS OBLIGED EITHER TO GIVE UP WHAT
HE BELIEVED, WITH ADVICE OF COUNSEL, TO BE A VALID FOURTH AMENDMENT
CLAIM OR, IN LEGAL EFFECT, TO WAIVE HIS FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION.  IN THESE CIRCUMSTANCES, WE FIND IT
INTOLERABLE THAT ONE CONSTITUTIONAL RIGHT SHOULD HAVE TO BE SURRENDERED
IN ORDER TO ASSERT ANOTHER.  WE THEREFORE HOLD THAT WHEN A DEFENDANT
TESTIFIES IN SUPPORT OF A MOTION TO SUPPRESS EVIDENCE ON FOURTH
AMENDMENT GROUNDS, HIS TESTIMONY MAY NOT THEREAFTER BE ADMITTED AGAINST
HIM AT TRIAL ON THE ISSUE OF GUILT UNLESS HE MAKES NO OBJECTION. 

FOR THE FOREGOING REASONS, WE AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS SO FAR AS IT RELATES TO PETITIONER SIMMONS.  WE REVERSE THE
JUDGMENT WITH RESPECT TO PETITIONER GARRETT, AND AS TO HIM REMAND THE
CASE TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 

/1/  MRS. MAHON ALSO TESTIFIED THAT AT ABOUT 3:30 P.M. THE SAME DAY
SIX MEN WITH GUNS FORCED THEIR WAY INTO AND RANSACKED HER HOUSE. 
HOWEVER, THESE MEN WERE NEVER IDENTIFIED, AND THEY APPARENTLY TOOK
NOTHING. 

/2/  SEE P. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 74-77
(1965). 

/3/  SEE ID., AT 82-83. 

/4/  SEE ID., AT 68-70. 

/5/  SEE, E.G., PEOPLE V. EVANS, 39 CAL.2D 242, 246 P.2D 636. 

/6/  THE RELIABILITY OF THE IDENTIFICATION PROCEDURE COULD HAVE BEEN
INCREASED BY ALLOWING ONLY ONE OR TWO OF THE FIVE EYEWITNESSES TO VIEW
THE PICTURES OF SIMMONS.  IF THUS IDENTIFIED, SIMMONS COULD LATER HAVE
BEEN DISPLAYED TO THE OTHER EYEWITNESSES IN A LINEUP, THUS PERMITTING
THE PHOTOGRAPHIC IDENTIFICATION TO BE SUPPLEMENTED BY A CORPOREAL
IDENTIFICATION, WHICH IS NORMALLY MORE ACCURATE.  SEE P. WALL, EYE
WITNESS IDENTIFICATION IN CRIMINAL CASES 83 (1965); WILLIAMS,
IDENTIFICATION PARADES, (1955) CRIM. L. REV. 525, 531.  ALSO, IT
PROBABLY WOULD HAVE BEEN PREFERABLE FOR THE WITNESSES TO HAVE BEEN
SHOWN MORE THAN SIX SNAPSHOTS, FOR THOSE SNAPSHOTS TO HAVE PICTURED A
GREATER NUMBER OF INDIVIDUALS, AND FOR THERE TO HAVE BEEN
PROPORTIONALLY FEWER PICTURES OF SIMMONS.  SEE WALL, SUPRA, AT 74-82;
WILLIAMS, SUPRA, AT 530. 

/7/  IN THE DISCUSSION OF THE BILL ON THE FLOOR OF THE SENATE,
SENATOR O'MAHONEY, SPONSOR OF THE BILL IN THE SENATE, STATED THAT
PHOTOGRAPHS PER SE WERE NOT REQUIRED TO BE PRODUCED UNDER THE BILL, BUT
THAT "(IF THE PICTURES HAVE ANYTHING TO DO WITH THE STATEMENT OF THE
WITNESS . . . OF COURSE THAT WOULD BE PART OF IT.  . . . " 103
CONG.REC.  16489. 

/8/  SEE P. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 84
(1965); WILLIAMS, IDENTIFICATION PARADES, (1955) CRIM. L. REV. 525,
530. 

/9/  GARRETT WAS ALSO INITIALLY IDENTIFIED FROM PHOTOGRAPHS, BUT AT
A LATER DATE THAN SIMMONS.  HE WAS IDENTIFIED BY FEWER WITNESSES THAN
WAS SIMMONS, AND EVEN THOSE WITNESSES HAD LESS OPPORTUNITY TO SEE HIM
DURING THE ROBBERY THAN THEY DID SIMMONS.  THE RECORD IS OPAQUE AS TO
THE NUMBER AND TYPE OF PHOTOGRAPHS OF GARRETT WHICH WERE SHOWN TO THESE
WITNESSES, AND AS TO THE CIRCUMSTANCES OF THE SHOWINGS.  HOWEVER, IT IS
UNNECESSARY TO DECIDE WHETHER GARRETT WAS PREJUDICED BY THE DISTRICT
COURT'S FAILURE TO ORDER PRODUCTION OF THE PICTURES AT TRIAL, SINCE WE
ARE REVERSING GARRETT'S CONVICTION ON OTHER GROUNDS. 

/10/  ALTHOUGH PETITIONER SIMMONS OBJECTED AT TRIAL TO THE ADMISSION
OF GARRETT'S TESTIMONY, THE CLAIM WAS NOT PRESSED ON HIS BEHALF HERE. 
GARRETT DID NOT MENTION SIMMONS IN HIS TESTIMONY, AND THE DISTRICT
COURT INSTRUCTED THE JURY TO CONSIDER THE TESTIMONY ONLY WITH REFERENCE
TO GARRETT. 

/11/  SEE, E.G., JONES V. UNITED STATES, 362 U.S. 257, AT 262;
EDWARDS, STANDING TO SUPPRESS UNREASONABLY SEIZED EVIDENCE, 47
NW.U.L.REV.  471 (1952).     /12/  IT HAS BEEN SUGGESTED THAT THE
ADOPTION OF A "POLICE-DETERRENT" RATIONALE FOR THE EXCLUSIONARY RULE,
SEE LINKLETTER V. WALKER, 381 U.S. 618, LOGICALLY DICTATES THAT A
DEFENDANT SHOULD BE ABLE TO OBJECT TO THE ADMISSION AGAINST HIM OF ANY
UNCONSTITUTIONALLY SEIZED EVIDENCE.  SEE COMMENT, STANDING TO OBJECT TO
AN UNREASONABLE SEARCH AND SEIZURE, 34 U.CHI.L.REV.  342 (1967); NOTE,
STANDING TO OBJECT TO AN UNLAWFUL SEARCH AND SEIZURE, 1965 WASH.U.L.Q.
488.  HOWEVER, THAT ARGUMENT IS NOT ADVANCED IN THIS CASE, AND WE DO
NOT CONSIDER IT. 

/13/  THE RECORD SHOWS THAT MRS. MAHON, THE OWNER OF THE PREMISES
FROM WHICH THE SUITCASE WAS TAKEN, DISCLSIMED ALL KNOWLEDGE OF ITS
PRESENCE THERE AND OF ITS OWNERSHIP. 

/14/  THE GOVERNMENT CONCEDES THAT THERE WERE NO IDENTIFYING MARKS
ON THE OUTSIDE OF THE SUITCASE.  SEE BRIEF FOR THE UNITED STATES 33. 

/15/  IN JONES, THE ONLY REFERENCE TO THE SUBJECT WAS A STATEMENT
THAT "(THE DEFENDANT) HAS BEEN FACED . . . WITH THE CHANCE THAT THE
ALLEGATIONS MADE ON THE MOTION TO SUPPRESS MAY BE USED AGAINST HIM AT
THE TRIAL, ALTHOUGH THAT THEY MAY IS BY NO MEANS AN INEVITABLE
HOLDING.  . . . " 362 U.S.,AT 262. 

/16/  SEE HELLER V. UNITED STATES, 57 F.2D 627; KAISER V. UNITED
STATES, 239 F.2D 93; MONROE V. UNITED STATES, 320 F.2D 277; UNITED
STATES V. TAYLOR, 326 F.2D 277; UNITED STATES V. AIRDO, 380 F.2D 103;
UNITED STATES V. LINDSLY, 7 F.2D 247, REV'D ON OTHER GROUNDS, 12 F.2D
771.  CONTRA, SEE BAILEY V. UNITED STATES, 128 U.S.APP.D.C. 354, 389
F.2D 305; UNITED STATES V. LEWIS, 270 F.SUPP.  807, 810, N. 1
(DICTUM). 

/17/  SEE, E.G., HELLER V. UNITED STATES, 57 F.2D 627; MONROE V.
UNITED STATES, 320 F.2D 277. 

/18/  SEE SAFARIK V. UNITED STATES, 62 F.2D 892, REHEARING DENIED,
63 F.2D 369.  ACCORD, FOWLER V. UNITED STATES, 239 F.2D 93 (DICTUM);
CF. FABRI V. UNITED STATES, 24 F.2D 185. 

/19/  SEE CASES CITED IN N. 16, SUPRA. 

/20/  SEE, E.G., UNITED STATES V. RABINOWITZ, 339 U.S. 56, 63. 

/21/  E.G., COMPARE WARDEN V. HAYDEN, 387 U.S. 294, WITH GOULED V.
UNITED STATES, 255 U.S. 298; COMPARE CAMARA V. MUNICIPAL COURT, 387
U.S. 523, WITH FRANK V. MARYLAND, 359 U.S. 360. 

/22/  SEE, E.G., HELLER V. UNITED STATES, 57 F.2D 627. 

/23/  FOR EXAMPLE, TESTIMONY GIVEN FOR HIS OWN BENEFIT BY A
PLAINTIFF IN A CIVIL SUIT IS ADMISSIBLE AGAINST HIM IN A SUBSEQUENT
CRIMINAL PROSECUTION.  SEE 4 WIGMORE, EVIDENCE SEC. 1066 (3D ED. 1940);
8 ID., SEC. 2276 (MCNAUGHTON REV. 1961). 

/24/  IBID. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN AFFIRMANCE OF THE CONVICTION OF SIMMONS BUT DISSENT FROM
REVERSAL OF GARRETT'S CONVICTION.  I SHALL FIRST DISCUSS SIMMONS'
CASE. 

1.  SIMMONS' CHIEF CLAIM IS THAT HIS "PRETRIAL IDENTIFICATION (WAS)
SO UNNECESSARILY SUGGESTIVE AND CONDUCIVE TO IRREPARABLE MISTAKEN
IDENTIFICATION, THAT HE WAS DENIED DUE PROCESS OF LAW."  THE COURT
REJECTS THIS CONTENTION.  I AGREE WITH THE COURT BUT FOR QUITE
DIFFERENT REASONS.  THE COURT'S OPINION RESTS ON A LENGTHY DISCUSSION
OF INFERENCES THAT THE JURY COULD HAVE DRAWN FROM THE EVIDENCE OF
IDENTIFYING WITNESSES.  A MERE SUMMARY READING OF THE EVIDENCE AS
OUTLINED BY THIS COURT SHOWS THAT ITS DISCUSSION IS CONCERNED WITH THE
WEIGHT OF THE TESTIMONY GIVEN BY THE IDENTIFYING WITNESSES.  THE WEIGHT
OF THE EVIDENCE, HOWEVER, IS NOT A QUESTION FOR THE COURT BUT FOR THE
JURY, AND DOES NOT RAISE A DUE PROCESS ISSUE.  THE DUE PROCESS QUESTION
RAISED BY SIMMONS IS, AND SHOULD BE HELD TO BE, FRIVOULOUS.  THE
IDENTIFYING WITNESSES WERE ALL PRESENT IN THE BANK WHEN IT WAS ROBBED
AND ALL SAW THE ROBBERS.  THE DUE PROCESS CONTENTION REVOLVES AROUND
THE CIRCUMSTANCES UNDER WHICH THESE WITNESSES IDENTIFIED PICTURES OF
THE ROBBERS SHOWN TO THEM, AND THESE CIRCUMSTANCES ARE RELEVANT ONLY TO
THE WEIGHT THE IDENTIFICATION WAS ENTITLED TO BE GIVEN.  THE COURT,
HOWEVER, CONSIDERS SIMMONS' CONTENTION ON THE PREMISE THAT A DENIAL OF
DUE PROCESS COULD BE FOUND IN THE "TOTALITY OF CIRCUMSTANCES" OF THE
PICTURE IDENTIFICATION.  I DO NOT BELIEVE THE DUE PROCESS CLAUSE OR ANY
OTHER CONSTITUTIONAL PROVISION VESTS THIS COURT WITH ANY SUCH WIDE
RANGING, UNCONTROLLABLE POWER.  A TRIAL ACCORDING TO DUE PROCESS OF LAW
IS A TRIAL ACCORDING TO THE "LAW OF THE LAND"-- THE LAW AS ENACTED BY
THE CONSTITUTION OR THE LEGISLATIVE BRANCH OF GOVERNMENT, AND NOT
"LAWS" FORMULATED BY THE COURTS ACCORDING TO THE "TOTALITY OF THE
CIRCUMSTANCES."  SIMMONS' DUE PROCESS CLAIM HERE SHOULD BE DENIED
BECAUSE IT IS FRIVOLOUS.  /1/  FOR THESE REASONS I VOTE TO AFFIRM
SIMMONS'  CONVICTION. 

2.  I AGREE WITH THE COURT, IN PART FOR REASONS IT ASSIGNS, THAT THE
DISTRICT COURT DID NOT COMMIT ERROR IN DECLINING TO PERMIT THE
PHOTOGRAPHS USED TO BE TURNED OVER TO THE DEFENSE FOR PURPOSES OF CROSS
EXAMINATION. 

3.  THE COURT MAKES NEW LAW IN REVERSING GARRETT'S CONVICTION ON THE
GROUND THAT IT WAS ERROR TO ALLOW THE GOVERNMENT TO USE AGAINST HIM
TESTIMONY HE HAD GIVEN UPON HIS UNSUCCESSFUL MOTION TO SUPPRESS
EVIDENCE ALLEGEDLY SEIZED IN VIOLATION OF THE FOURTH AMENDMENT.  THE
TESTIMONY USED WAS GARRETT'S STATEMENT IN THE SUPPRESSION HEARING THAT
HE WAS THE OWNER OF A SUITCASE WHICH CONTAINED MONEY WRAPPERS TAKEN
FROM THE BANK THAT WAS ROBBED.  THE COURT IS CERTAINLY GUILTY OF NO
OVERSTATEMENT IN SAYING THAT THIS "WAS UNDOUBTEDLY A STRONG PIECE OF
EVIDENCE AGAINST (GARRETT)."  ANTE, AT 391.  IN FACT, ONE MIGHT GO
FURTHER AND SAY THAT THIS TESTIMONY, ALONG WITH THE STATEMENTS OF THE
EYEWITNESSES AGAINST HIM, SHOWED BEYOND ALL QUESTION THAT GARRETT WAS
ONE OF THE BANK ROBBERS.  THE QUESTION THEN IS WHETHER THE GOVERNMENT
IS BARRED FROM OFFERING A TRUTHFUL STATEMENT MADE BY A DEFENDANT AT A
SUPPRESSION HEARING IN ORDER TO PREVENT THE DEFENDANT FROM WINNING AN
ACQUITTAL ON THE FALSE PREMISE THAT HE IS NOT THE OWNER OF THE PROPERTY
HE HAS ALREADY SWORN THAT HE OWNS.  MY ANSWER TO THIS QUESTION IS
"NO."  THE COURT'S ANSWER IS "YES" ON THE PREMISE THAT "A DEFENDANT WHO
KNOWS THAT HIS TESTIMONY MAY BE ADMISSIBLE AGAINST HIM AT TRIAL WILL
SOMETIMES BE DETERRED FROM PRESENTING THE TESTIMONIAL PROOF OF STANDING
NECESSARY TO ASSERT A FOURTH AMENDMENT CLAIM."  ANTE, AT 392-393. 

FOR THE COURT, THOUGH NOT FOR ME, THE QUESTION SEEMS TO BE WHETHER
THE DISADVANTAGES ASSOCIATED WITH DETERRING A DEFENDANT FROM TESTIFYING
ON A MOTION TO SUPPRESS ARE SIGNIFICANT ENOUGH TO OFFSET THE ADVANTAGES
OF PERMITTING THE GOVERNMENT TO USE SUCH TESTIMONY WHEN RELEVANT AND
PROBATIVE TO HELP CONVICT THE DEFENDANT OF A CRIME.  THE COURT ITSELF
CONCEDES, HOWEVER, THAT THE DETERRENT EFFECT ON WHICH IT RELIES COMES
INTO PLAY, AT MOST, ONLY IN "MARGINAL CASES" IN WHICH THE DEFENDANT
CANNOT ESTIMATE WHETHER THE MOTION TO SUPPRESS WILL SUCCEED.  ANTE, AT
393.  THE VALUE OF PERMITTING THE GOVERNMENT TO USE SUCH TESTIMONY IS,
OF COURSE, SO OBVIOUS THAT IT IS USUALLY LEFT UNSTATED, BUT IT SHOULD
NOT FOR THAT REASON BE IGNORED.  THE STANDARD OF PROOF NECESSARY TO
CONVICT IN A CRIMINAL CASE IS HIGH, AND QUITE PROPERLY SO, BUT FOR THIS
REASON HIGHLY PROBATIVE EVIDENCE SUCH AS THAT INVOLVED HERE SHOULD NOT
LIGHTLY BE HELD INADMISSIBLE.  FOR ME THE IMPORTANCE OF BRINGING GUILTY
CRIMINALS TO BOOK IS A FAR MORE CRUCIAL CONSIDERATION THAN THE
DESIRABILITY OF GIVING DEFENDANTS EVERY POSSIBLE ASSISTANCE IN THEIR
ATTEMPTS TO INVOKE AN EVIDENTIARY RULE WHICH ITSELF CAN RESULT IN THE
EXCLUSION OF HIGHLY RELEVANT EVIDENCE. 

THIS LEAVES FOR ME ONLY THE POSSIBLE CONTENTION THAT GARRETT'S
TESTIMONY WAS INADMISSIBLE UNDER THE FIFTH AMENDMENT BECAUSE IT WAS
COMPELLED.  OF COURSE, I COULD NEVER ACCEPT THE COURT'S STATEMENT THAT
"TESTIMONY IS NOT ALWAYS INVOLUNTARY AS A MATTER OF LAW SIMPLY BECAUSE
IT IS GIVEN TO OBTAIN A BENEFIT."  ANTE, AT 394.  NO MATTER WHAT
PROFESSOR WIGMORE MAY HAVE THOUGHT ABOUT THE SUBJECT, IT HAS ALWAYS
BEEN CLEAR TO ME THAT ANY THREAT OF HARM OR PROMISE OF BENEFIT IS
SUFFICIENT TO RENDER A DEFENDANT'S STATEMENT INVOLUNTARY.  SEE SHOTWELL
MFG. CO. V. UNITED STATES, 371 U.S. 341, 367 (1963) (DISSENTING
OPINION).  THE REASON WHY THE FIFTH AMENDMENT POSES NO BAR TO
ACCEPTANCE OF GARRET'S TESTIMONY IS NOT, THEREFORE, THAT A PROMISE OF
BENEFIT IS NOT GENERALLY FATAL.  RATHER, THE ANSWER IS THAT THE
PRIVILEGE AGAINST SELF-INCRIMINATION HAS ALWAYS BEEN CONSIDERED A
PRIVILEGE THAT CAN BE WAIVED, AND THE VALIDITY OF THE WAIVER IS, OF
COURSE, NOT UNDERMINED BY THE INEVITABLE FACT THAT BY TESTIFYING, A
DEFENDANT CAN OBTAIN THE "BENEFIT" OF A CHANCE TO HELP HIS OWN CASE BY
THE TESTIMONY HE GIVES.  WHEN GARRETT TOOK THE STAND AT THE SUPPRESSION
HEARING, HE VALIDLY SURRENDERED HIS PRIVILEGE WITH RESPECT TO THE
STATEMENTS HE ACTUALLY MADE AT THAT TIME, AND SINCE THESE STATEMENTS
WERE THEREFORE NOT "COMPELLED," THEY COULD BE USED AGAINST HIM FOR ANY
SUBSEQUENT PURPOSE. 

THE CONSEQUENCE OF THE COURT'S HOLDING, IT SEEMS TO ME, IS THAT
DEFENDANTS ARE ENCOURAGED TO COME INTO COURT, EITHER IN PERSON OR
THROUGH OTHER WITNESSES, AND SWEAR FALSELY THAT THEY DO NOT OWN
PROPERTY, KNOWING AT THE VERY MOMENT THEY DO SO THAT THEY HAVE ALREADY
SWORN PRECISELY THE OPPOSITE IN A PRIOR COURT PROCEEDING.  THIS IS BUT
TO PERMIT LAWLESS PEOPLE TO PLAY DUCKS AND DRAKES WITH THE BASIC
PRINCIPLES OF THE ADMINISTRATION OF CRIMINAL LAW. 

THERE IS CERTAINLY NO LANGUAGE IN THE FOURTH AMENDMENT WHICH GIVES
SUPPORT TO ANY SUCH DEVICE TO HOBBLE LAW ENFORCEMENT IN THIS COUNTRY. 
WHILE OUR CONSTITUTION DOES PROVIDE PROCEDURAL SAFEGUARDS TO PROTECT
DEFENDANTS FROM ARBITRARY CONVICTIONS, THAT GOVERNMENTAL CHARTER HOLDS
OUT NO PROMISES TO STULTIFY JUSTICE BY ERECTING BARRIERS TO THE
ADMISSIBILITY OF RELEVANT EVIDENCE VOLUNTARILY GIVEN IN A COURT OF
JUSTICE.  UNDER THE FIRST PRINCIPLES OF ETHICS AND MORALITY A DEFENDANT
WHO SECURES A COURT ORDER BY TELLING THE TRUTH SHOULD NOT BE ALLOWED TO
SEEK A COURT ADVANTAGE LATER BASED ON A PREMISE DIRECTLY OPPOSITE TO
HIS PRIOR SOLEMN JUDICIAL OATH.  THIS COURT SHOULD NOT LEND THE
PRESTIGE OF ITS HIGH NAME TO SUCH A JUSTICE-DEFEATING STRATAGEM.  I
WOULD AFFIRM GARRETT'S CONVICTION. 

/1/ ALTHOUGH SIMMONS'"QUESTIONS PRESENTED" RAISE NO SUCH CONTENTION,
THE COURT DECLINES TO USE ITS "SUPERVISORY POWER" TO HOLD SIMMONS'
RIGHTS WERE VIOLATED BY THE IDENTIFICATION METHODS.  ONE MUST LOOK TO
THE CONSTITUTION IN VAIN, I THINK, TO FIND A "SUPERVISORY POWER" IN
THIS COURT TO REVERSE CASES LIKE THIS ON SUCH A GROUND. 

MR. JUSTICE WHITE, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN PARTS I AND II OF THE COURT'S OPINION BUT DISSENT FROM
THE REVERSAL OF GARRETT'S CONVICTION SUBSTANTIALLY FOR THE REASONS
GIVEN BY MR. JUSTICE BLACK IN HIS SEPARATE OPINION. 

RAYMOND J. SMITH ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE JOHN POWERS CROWLEY AND GEORGE F. CALLAGHAN. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES. 
WITH HIM ON THE BRIEF WERE ASSISTANT ATTORNEY GENERAL VINSON, BEATRICE
ROSENBERG AND MERVYN HAMBURG. 
..END :
























NEWMAN V. PIGGIE PARK ENTERPRISES, 390 U.S. 400 


       NEWMAN ET AL. V. PIGGIE PARK ENTERPRISES, INC., ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FOURTH CIRCUIT. 

        NO. 339.  ARGUED MARCH 7, 1968.-- DECIDED MARCH 18, 1968. 


ONE WHO SUCCEEDS IN OBTAINING AN INJUNCTION UNDER TITLE II OF THE
CIVIL RIGHTS ACT OF 1964 SHOULD ORDINARILY RECOVER AN ATTORNEY'S FEE
UNDER SEC. 204(B) UNLESS SPECIAL CIRCUMSTANCES WOULD RENDER SUCH AN
AWARD UNJUST, AND SHOULD NOT BE LIMITED, AS THE COURT OF APPEALS HELD,
TO AN AWARD OF COUNSEL FEES ONLY IF THE DEFENSES ADVANCED WERE "FOR
PURPOSES OF DELAY AND NOT IN GOOD FAITH." 

377 F.2D 433, MODIFIED AND AFFIRMED. 

PER CURIAM. 

THE PETITIONERS INSTITUTED THIS CLASS ACTION UNDER TITLE II OF THE
CIVIL RIGHTS ACT OF 1964, SEC. 204(A), 78 STAT. 244, 42 U.S.C. 2000A
3(A), TO ENJOIN RACIAL DISCRIMINATION AT FIVE DRIVE-IN RESTAURANTS AND
A SANDWICH SHOP OWNED AND OPERATED BY THE RESPONDENTS IN SOUTH
CAROLINA.  THE DISTRICT COURT HELD THAT THE OPERATION OF EACH OF THE
RESPONDENTS' RESTAURANTS AFFECTED COMMERCE WITHIN THE MEANING OF SEC.
201(C)(2), 78 STAT. 243, 42 U.S.C. 1000AC)(2), AND FOUND, ON UNDISPUTED
EVIDENCE, THAT NEGROES HAD BEEN DISCRIMINATED AGAINST AT ALL SIX OF THE
RESTAURANTS.  256 F.SUPP.  941, 947, 951.  BUT THE DISTRICT COURT
ERRONEOUSLY CONCLUDED THAT TITLE II DOES NOT COVER DRIVE-IN RESTAURANTS
OF THE SORT INVOLVED IN THIS CASE.  256 F.SUPP.,AT 951-953.  THUS THE
COURT ENJOINED RACIAL DISCRIMINATION ONLY AT THE RESPONDENTS'  SANDWICH
SHIP.  ID., AT 953. 

THE COURT OF APPEALS REVERSED THE DISTRICT COURT'S REFUSAL TO ENJOIN
DISCRIMINATION AT THE DRIVE-IN ESTABLISHMENTS, 377 F.2D 433, 435-436,
AND THEN DIRECTED ITS ATTENTION TO THAT SECTION OF TITLE II WHICH
PROVIDES THAT "THE PREVAILING PARTY" IS ENTITLED TO "A REASONABLE
ATTORNEY'S FEE" IN THE COURT'S "DISCRETION."  SEC. 204(B), 78 STAT.
244, 42 U.S.C. 2000A-3(B).  /1/  IN REMANDING THE CASE, THE COURT OF
APPEALS INSTRUCTED THE DISTRICT COURT TO AWARD COUNSEL FEES ONLY TO THE
EXTENT THAT THE RESPONDENTS' DEFENSES HAD BEEN ADVANCED "FOR PURPOSES
OF DELAY AND NOT IN GOOD FAITH."  377 F.2D, AT 437.  WE GRANTED
CERTIORARI TO DECIDE WHETHER THIS SUBJECTIVE STANDARD PROPERLY
EFFECTUATES THE PURPOSES OF THE COUNSEL-FEE PROVISION OF TITLE II OF
THE CIVIL RIGHTS ACT OF 1964.  389 U.S. 815.  WE HOLD THAT IT DOES
NOT. 

WHEN THE CIVIL RIGHTS ACT OF 1964 WAS PASSED, IT WAS EVIDENT THAT
ENFORCEMENT WOULD PROVE DIFFICULT AND THAT THE NATION WOULD HAVE TO
RELY IN PART UPON PRIVATE LITIGATION AS A MEANS OF SECURING BROAD
COMPLIANCE WITH THE LAW.  /2/  A TITLE II SUIT IS THUS PRIVATE IN FORM
ONLY.  WHEN A PLAINTIFF BRINGS AN ACTION UNDER THAT TITLE, HE CANNOT
RECOVER DAMAGES.  IF HE OBTAINS AN INJUNCTION, HE DOES SO NOT FOR
HIMSELF ALONE BUT ALSO AS A "PRIVATE ATTORNEY GENERAL," VINDICATING A
POLICY THAT CONGRESS CONSIDERED OF THE HIGHEST PRIORITY.  /3/  IF
SUCCESSFUL PLAINTIFFS WERE ROUTINELY FORCED TO BEAR THEIR OWN
ATTORNEYS' FEES, FEW AGGRIEVED PARTIES WOULD BE IN A POSITION TO
ADVANCE THE PUBLIC INTEREST BY INVOKING THE INJUNCTIVE POWERS OF THE
FEDERAL COURTS.  CONGRESS THEREFORE ENACTED THE PROVISION FOR COUNSEL
FEES-- NOT SIMPLY TO PENALIZE LITIGANTS WHO DELIBERATELY ADVANCE
ARGUMENTS THEY KNOW TO BE UNTENABLE BUT, MORE BROADLY, TO ENCOURAGE
INDIVIDUALS INJURED BY RACIAL DISCRIMINATION TO SEEK JUDICIAL RELIEF
UNDER TITLE II.  /4/ 

IT FOLLOWS THAT ONE WHO SUCCEEDS IN OBTAINING AN INJUNCTION UNDER
THAT TITLE SHOULD ORDINARILY RECOVER AN ATTORNEY'S FEE UNLESS SPECIAL
CIRCUMSTANCES WOULD RENDER SUCH AN AWARD UNJUST.  BECAUSE NO SUCH
CIRCUMSTANCES ARE PRESENT HERE, /5/  THE DISTRICT COURT ON REMAND
SHOULD INCLUDE REASONABLE COUNSEL FEES AS PART OF THE COSTS TO BE
ASSESSED AGAINST THE RESPONDENTS.  AS SO MODIFIED, THE JUDGMENT OF THE
COURT OF APPEALS IS

              AFFIRMED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

/1/  "IN ANY ACTION COMMENCED PURSUANT TO THIS SUBCHAPTER, THE
COURT, IN ITS DISCRETION, MAY ALLOW THE PREVAILING PARTY, OTHER THAN
THE UNITED STATES, A REASONABLE ATTORNEY'S FEE AS PART OF THE COSTS,
AND THE UNITED STATES SHALL BE LIABLE FOR COSTS THE SAME AS A PRIVATE
PERSON."  42 U.S.C. 2000A-3(B). 

/2/  IN THIS CONNECTION, IT IS NOTEWORTHY THAT 42 U.S.C. 2000A-3(A)
PERMITS INTERVENTION BY THE ATTORNEY GENERAL IN PRIVATELY INITIATED
TITLE II SUITS "OF GENERAL PUBLIC IMPORTANCE" AND PROVIDES THAT, "IN
SUCH CIRCUMSTANCES AS THE COURT MAY DEEM JUST," A DISTRICT COURT MAY
"APPOINT AN ATTORNEY FOR (THE) COMPLAINANT AND MAY AUTHORIZE THE
COMMENCEMENT OF THE CIVIL ACTION WITHOUT THE PAYMENT OF FEES, COSTS, OR
SECURITY."  ONLY WHERE A "PATTERN OR PRACTICE" OF DISCRIMINATION IS
REASONABLY BELIEVED TO EXIST MAY THE ATTORNEY GENERAL HIMSELF INSTITUTE
A CIVIL ACTION FOR INJUNCTIVE RELIEF.  42 U.S.C. 2000A-5. 

/3/  SEE S. REP. NO. 872, 88TH CONG., 2D SESS., PT. 1, AT 11, 24
(1964); H.R. REP. NO. 914, 88TH CONG., 1ST SESS., PT. 1, AT 18 (1963);
H.R. REP. NO. 914, 88TH CONG., 1ST SESS., PT. 2, AT 1-2 (1963). 

/4/  IF CONGRESS' OBJECTIVE HAD BEEN TO AUTHORIZE THE ASSESSMENT TO
ATTORNEYS' FEES AGAINST DEFENDANTS WHO MAKE COMPLETELY GROUNDLESS
CONTENTIONS FOR PURPOSES OF DELAY, NO NEW STATUTORY PROVISION WOULD
HAVE BEEN NECESSARY, FOR IT HAS LONG BEEN HELD THAT A FEDERAL COURT MAY
AWARD COUNSEL FEES TO A SUCCESSFUL PLAINTIFF WHERE A DEFENSE HAS BEEN
MAINTAINED "IN BAD FAITH, VEXATIOUSLY, WANTONLY, OR FOR OPPRESSIVE
REASONS."  6 MOORE'S FEDERAL PRACTICE 1352 (1966 ED.). 

/5/  INDEED, THIS IS NOT EVEN A BORDERLINE CASE, FOR THE RESPONDENTS
INTERPOSED DEFENSES SO PATENTLY FRIVOLOUS THAT A DENIAL OF COUNSEL FEES
TO THE PETITIONERS WOULD BE MANIFESTLY INEQUITABLE.  THUS, FOR EXAMPLE,
THE "FACT THAT THE DEFENDANTS HAD DISCRIMINATED BOTH AT (THE) DRIVE-INS
AND AT (THE SANDWICH SHOP) WAS . . . DENIED . . . (ALTHOUGH) THE
DEFENDANTS COULD NOT AND DID NOT UNDERTAKE AT THE TRIAL TO SUPPORT
THEIR DENIALS.  INCLUDABLE IN THE SAME CATEGORY ARE DEFENDANTS'
CONTENTION, TWICE PLEADED AFTER THE DECISION IN KATZENBACH V. MCCLUNG,
379 U.S. 294, . . . THAT THE ACT WAS UNCONSTITUTIONAL ON THE VERY
GROUNDS FORECLOSED BY MCCLUNG; AND DEFENDANTS' CONTENTION THAT THE ACT
WAS INVALID BECAUSE IT 'CONTRAVENES THE WILL OF GOD' AND CONSTITUTES AN
INTERFERENCE WITH THE 'FREE EXERCISE OF THE DEFENDANT'S RELIGION.'" 
377 F.2D 433, 437-438 (SEPARATE OPINION OF JUDGE WINTER). 

JACK GREENBERG ARGUED THE CAUSE FOR PETITIONERS.  WITH HIM ON THE
BRIEF WERE JAMES M. NABRIT III, MICHAEL MELTSNER, MATTHEW J. PERRY,
LINCOLN C. JENKINS, JR., AND HEMPHILL P. PRIDE II. 

NO APPEARANCE FOR RESPONDENTS. 
..END :













BIGGERS V. TENNESSEE, 390 U.S. 404 


       BIGGERS V. TENNESSEE. 

        CERTIORARI TO THE SUPREME COURT OF TENNESSEE. 

        NO. 237.  ARGUED JANUARY 15, 1968.-- DECIDED MARCH 18,

           1968. 


-- TENN.-- , 411 S.W.2D 696, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

PER CURIAM. 

THE JUDGMENT BELOW IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING.  /1/ 

PETITIONER WAS INDICTED FOR A RAPE COMMITTED WHEN HE WAS 16 YEARS
OLD, WAS CONVICTED, AND AFTER A TRIAL BY A JURY SENTENCED TO 20 YEARS,
FIRST TO A JUVENILE FACILITY AND LATER TO PRISON.  THE SUPREME COURT OF
TENNESSEE AFFIRMED THE JUDGMENT OF CONVICTION.  BIGGERS V. STATE,--
TENN.-- , 411 S.W.2D 696. 

ON THE NIGHT OF JANUARY 22, 1965, MRS. BEAMER WAS AT HOME SEWING,
WHEN AN INTRUDER WITH A BUTCHER KNIFE IN HIS HAND GRABBED HER FROM THE
REAR.  HER SCREAMS BROUGHT HER 13-YEAR-OLD DAUGHTER, WHO, ARRIVING AT
THE SCENE, ALSO STARTED TO SCREAM.  THE INTRUDER SAID TO MRS. BEAMER,
"YOU TELL HER TO SHUT UP, OR I'LL KILL YOU BOTH."  MRS. BEAMER ORDERED
HER DAUGHTER TO A BEDROOM, AND THE INTRUDER TOOK MRS. BEAMER OUT OF THE
HOUSE TO A SPOT TWO BLOCKS AWAY AND RAPED HER. 

DURING THE NEXT SEVEN MONTHS THE POLICE SHOWED MRS. BEAMER NUMEROUS
POLICE PHOTOGRAPHS, ONE OF WHICH, SHE SAID, SHOWED A MAN WHO "HAD
FEATURES" LIKE THE INTRUDER.  THE CASE LAY DORMANT.  MRS. BEAMER WAS
UNABLE TO DESCRIBE THE RAPIST OTHER THAN TO STATE HE WAS FAT AND
"FLABBY," HAD A YOUTHFUL VOICE, SMOOTH SKIN, AND "SORT OF BUSHY" HAIR. 

ON AUGUST 17, 1965, PETITIONER, STILL ONLY 16 YEARS OLD, WAS
ARRESTED FOR THE RAPE OF ANOTHER WOMAN.  ON THE SAME DAY THE POLICE
BROUGHT MRS. BEAMER TO THE POLICE STATION TO "LOOK AT A SUSPECT."  THEY
BROUGHT PETITIONER TO THE DOORWAY OF THE ROOM WHERE SHE SAT.  SHE ASKED
THE POLICE TO HAVE HIM SPEAK AND THEY TOLD HIM TO REPEAT THE WORDS
SPOKEN BY THE RAPIST, "SHUT UP, OR I'LL KILL YOU."  ONLY AFTER HE HAD
SPOKEN DID MRS. BEAMER IDENTIFY PETITIONER AS THE MAN WHO HAD RAPED
HER; SHE TESTIFIED THAT IT WAS PETITIONER'S VOICE THAT "WAS THE FIRST
THING THAT MADE ME THINK IT WAS THE BOY."  SO FAR AS THE RECORD
INDICATES, AT THE TIME OF THIS CONFRONTATION NEITHER THE PARENTS OF
PETITIONER NOR ANY ATTORNEY ACTING FOR HIM HAD BEEN ADVISED OF THE
INTENDED MEETING WITH MRS. BEAMER. 

THE INDICTMENT FOLLOWED.  AT THE TRIAL THE DAUGHTER TESTIFIED TO
WHAT SHE HAD SEEN THE EVENING OF THE RAPE, BUT WAS UNABLE TO IDENTIFY
PETITIONER AS THE RAPIST.  THE ONLY EVIDENCE CONNECTING HIM WITH THE
RAPE WAS MRS. BEAMER'S STATION-HOUSE IDENTIFICATION.  SHE DID NOT
IDENTIFY HIM IN THE COURTROOM.  /2/  SHE TESTIFIED THAT SHE HAD
IDENTIFIED HIM BY HIS SIZE, HIS VOICE, HIS SMOOTH SKIN, AND HIS BUSHY
HAIR.  THREE OF THE FIVE POLICE OFFICERS WHO WERE PRESENT AT THE
IDENTIFICATION TESTIFIED OVER OBJECTION IN CORROBORATION OF MRS.
BEAMER'S REACTION AT THE CONFRONTATION. 

THIS PROCEDURE OF IDENTIFICATION VIOLATES, OF COURSE, UNITED STATES
V. WADE, 388 U.S. 218, AND GILBERT V. CALIFORNIA, 388 U.S. 263.  THOSE
WERE CASES OF LINEUPS AND THIS WAS NOT.  YET, THOUGH THEY RECOGNIZED A
SUSPECT'S RIGHT TO COUNSEL AT THAT CRITICAL STATE, THE COURT ANNOUNCED
THEY WOULD NOT HAVE RETROACTIVE EFFECT. 

STOVALL V. DENNO, 388 U.S. 293, AND SIMMONS V. UNITED STATES, ANTE,
P. 377, MAKE IT CLEAR, HOWEVER, THAT INDEPENDENT OF ANY RIGHT TO
COUNSEL CLAIM, A PROCEDURE OF IDENTIFICATION MAY BE "SO UNNECESSARILY
SUGGESTIVE AND CONDUCIVE TO IRREPARABLE MISTAKEN IDENTIFICATION" THAT
DUE PROCESS OF LAW IS DENIED WHEN EVIDENCE OF THE IDENTIFICATION IS
USED AT TRIAL.  STOVALL V. DENNO, SUPRA, AT 302.  THE CLAIM THAT MRS.
BEAMER'S IDENTIFICATION OF PETITIONER FALLS WITHIN THIS RULE "MUST BE
EVALUATED IN LIGHT OF THE TOTALITY OF SURROUNDING CIRCUMSTANCES"  WITH
THE VIEW OF DETERMINING IF THE PROCEDURE IN PETITIONER'S CASE "WAS SO
UNDULY PREJUDICIAL AS FATALLY TO TAINT HIS CONVICTION."  SIMMONS V.
UNITED STATES, SUPRA. 

IN SIMMONS, IDENTIFICATION BY USE OF PHOTOGRAPHS RATHER THAN A
LINEUP WAS UPHELD BECAUSE THE BANK ROBBERS WERE STILL AT LARGE, THE FBI
HAD TO QUICKLY DETERMINE WHETHER IT WAS ON THE RIGHT TRACK IN LOOKING
FOR SIMMONS, THE WITNESSES' MEMORIES WERE FRESH SINCE THE ROBBERY WAS
BUT A DAY OLD, AND BECAUSE THE PHOTOS PICTURED PERSONS IN ADDITION TO
PETITIONER.  IN STOVALL, A SINGLE-SUSPECT CONFRONTATION HELD IN A
HOSPITAL ROOM WAS FOUND TO COMPORT WITH DUE PROCESS BECAUSE THE
STABBING VICTIM, THE SOLE SOURCE OF IDENTIFICATION, WAS IN DANGER OF
DEATH-- TO HAVE CONDUCTED A LINEUP WOULD HAVE ENTAILED PERHAPS FATAL
DELAY. 

WE HAVE NO SUCH PROBLEM OF COMPELLING URGENCY HERE.  THERE WAS AMPLE
TIME TO CONDUCT A TRADITIONAL LINEUP.  THIS CONFRONTATION WAS CRUCIAL. 
PETITIONER STOOD TO BE FREE OF THE CHARGE OR TO ACCOUNT FOR IT,
DEPENDENT ON WHAT MRS. BEAMER SAID.  WHATEVER MAY BE SAID OF LINEUPS,
SHOWING A SUSPECT SINGLY TO A VICTIM IS PREGNANT WITH PREJUDICE.  THE
MESSAGE IS CLEAR:  THE POLICE SUSPECT THIS MAN.  THAT CARRIES A
POWERFULLY SUGGESTIVE THOUGHT.  EVEN IN A LINEUP THE ABILITY TO
IDENTIFY THE CRIMINAL IS SEVERELY LIMITED BY NORMAL HUMAN FALLIBILITIES
OF MEMORY AND PERCEPTION.  WHEN THE SUBJECT IS SHOWN SINGLY, HAVOC IS
MORE LIKELY TO BE PLAYED WITH THE BEST-INTENDED RECOLLECTIONS. 

AS NOTED, IN SIMMONS, WHERE IDENTIFICATION WAS BY PHOTOGRAPH, THE
COURT STRESSED THAT IDENTIFICATION WAS MADE ONLY A DAY AFTER THE CRIME
WHILE "MEMORIES WERE STILL FRESH."  ID., AT 385.  HERE, HOWEVER, MRS.
BEAMER CONFRONTED PETITIONER SEVEN MONTHS AFTER THE RAPE, AND THE
SHARPNESS OF HER RECALL WAS BEING SEVERELY TESTED.  IN SIMMONS, TOO,
THE COURT EMPHASIZED THAT THE FIVE WITNESSES HAD SEEN THE ROBBERS "IN A
WELL-LIGHTED BANK."  IBID.  HERE, HOWEVER, THERE WAS "(N)O LIGHT IN THE
HALL" WHERE MRS. BEAMER WAS FIRST ASSAULTED; FROM THAT HALL, THE
ASSAILANT TOOK HER OUT OF THE HOUSE THROUGH A KITCHEN WHERE THERE WAS
"NO LIGHT," AND THE RAILROAD TRACK WHERE THE RAPE OCCURRED WAS
ILLUMINATED ONLY BY THE MOON.  INDEED, THE BEST VIEW MRS. BEAMER HAD OF
PETITIONER WAS IN THE HALL BY INDIRECT LIGHT FROM A NEARBY BEDROOM. 

IN SIMMONS, THE RECORD DID NOT INDICATE THAT THE FBI TOLD THE
WITNESSES WHICH OF THE MEN IN THE PHOTOGRAPHS WERE SUSPECTS.  HERE, ON
THE OTHER HAND, THE POLICE TOLD MRS. BEAMER WHEN THEY BROUGHT HER TO
THE STATION HOUSE THAT THE MAN SHE WOULD SEE WAS A "SUSPECT." 

MOREOVER, UNLIKE THE SIMMONS CASE, IDENTIFICATION HERE RESTED
LARGELY ON VOICE.  THE FACT THAT PETITIONER HAD "THE VOICE OF AN
IMMATURE YOUTH," TO USE MRS. BEAMER'S WORDS, MERELY PUT HIM IN A LARGE
CLASS AND DID NOT RELATE HIM TO SPEECH PECULIAR TO HIM.  COICE
IDENTIFICATIONS INVOLVE "GRAVE DANGER OF PREJUDICE TO THE SUSPECT," AS
THE COURT OF APPEALS FOR THE FOURTH CIRCUIT SAID IN PALMER V. PEYTON,
359 F.2D 199, 201.  NO ONE ELSE IDENTIFIED PETITIONER.  THE DAUGHTER
COULD NOT; AND MRS. BEAMER DID NOT IDENTIFY HIM IN THE COURTROOM. 
PETITIONER WAS YOUNG AND APPARENTLY HAD NO PREVIOUS POLICE RECORD. 
THERE WAS NO OTHER SHRED OF EVIDENCE AGAINST HIM. 

UNDER THE CIRCUMSTANCES OF THIS CASE IT SEEMS PLAIN THAT THE POLICE
MAXIMIZED THE SUGGESTION THAT PETITIONER COMMITTED THE CRIME. 

OF COURSE, DUE PROCESS IS NOT ALWAYS VIOLATED WHEN THE POLICE FAIL
TO ASSEMBLE A LINEUP BUT CONDUCT A ONE-MAN SHOWUP.  PLAINLY HERE,
HOWEVER, THE HIGHLY SUGGESTIVE ATMOSPHERE THAT HAD BEEN GENERATED BY
THE MANNER IN WHICH THIS SHOWUP WAS ARRANGED AND CONDUCTED COULD NOT
HAVE FAILED TO AFFECT MRS. BEAMER'S JUDGMENT; WHEN SHE WAS PRESENTED
WITH NO ALTERNATIVE CHOICES, "THERE (WAS) THEN A STRONG PREDISPOSITION
TO OVERCOME DOUBTS AND TO FASTEN GUILT UPON THE LONE SUSPECT."  PALMER
V. PEYTON, SUPRA, AT 201.  THE CONCLUSION IS INESCAPABLE THAT THE
ENTIRE ATMOSPHERE CREATED BY THE POLICE SURROUNDING MRS. BEAMER'S
IDENTIFICATION WAS SO SUGGESTIVE THAT USE AT TRIAL OF HER STATION-HOUSE
IDENTIFICATION CONSTITUTED A VIOLATION OF DUE PROCESS.  SINCE THIS WAS
THE ONLY EVIDENCE OF IDENTIFICATION, THERE CAN BE NO QUESTION OF
HARMLESS ERROR.  SEE CHAPMAN V. CALIFORNIA, 386 U.S. 18. 

PETITIONER IS ENTITLED TO A NEW TRIAL UNAFFECTED BY MRS. BEAMER'S
STATION-HOUSE IDENTIFICATION AND THE TESTIMONY OF THE POLICE OFFICERS
WHO WERE PRESENT WHEN IT TOOK PLACE.  SEE GILBERT V. CALIFORNIA, SUPRA,
AT 272-273. 

THE FACT THAT PETITIONER IS A NEGRO, AND MRS. BEAMER ALSO, IS OF
COURSE IRRELEVANT TO THE DUE PROCESS QUESTION. 

/1/  AS RESPECTS THE PRACTICE OF JUSTICES SETTING FORTH THEIR VIEWS
IN A CASE WHERE THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT,
SEE COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 412-415, 422; OSMAN V.
DOUDS, 339 U.S. 846, 847; IN RE ISSERMAN, 345 U.S. 286; 348 U.S. 1;
RALEY V. OHIO, 360 U.S. 423, 440; EATON V. PRICE, 364 U.S. 263, 264. 

/2/  RESPONDENT CONTENDS THAT MRS. BEAMER MADE AN IN-COURT
IDENTIFICATION OF PETITIONER AS THE RAPIST.  BUT THE PORTIONS OF THE
RECORD RELIED ON DO NOT SUPPORT THIS CLAIM.  AFTER MRS. BEAMER HAD
DESCRIBED THE STATION-HOUSE IDENTIFICATION, THE PROSECUTOR ASKED HER,
"IS THERE ANY DOUBT IN YOUR MIND TODAY?"  SHE REPLIED, "NO, THERE'S NO
DOUBT."  THE INFERENCE TO BE DRAWN IS THAT MRS. BEAMER HAD NO CURRENT
DOUBT AS TO THE CORRECTNESS OF HER PREVIOUS IDENTIFICATION OF
PETITIONER AT THE POLICE STATION. 

MICHAEL MELTSNER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE JACK GREENBERG, ANTHONY G. AMSTERDAM, AVON N. WILLIAMS AND
Z. ALEXANDER LOOBY. 

THOMAS E. FOX, DEPUTY ATTORNEY GENERAL OF TENNESSEE, ARGUED THE
CAUSE FOR RESPONDENT.  ON THE BRIEF WERE GEORGE F. MCCANLESS, ATTORNEY
GENERAL, AND ROBERT F. HEDGEPATH, ASSISTANT ATTORNEY GENERAL. 
..END :



SULLIVAN V. GEORGIA, 390 U.S. 410 


       SULLIVAN V. GEORGIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           GEORGIA. 

        NO. 1131, MISC.  DECIDED MARCH 18, 1968. 


CERTIORARI GRANTED; 223 GA. 643, 157 S.E.2D 247, REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME
COURT OF GEORGIA IS REVERSED.  WHITUS V. GEORGIA, 385 U.S. 545. 

CHARLES MORGAN, JR., MORRIS BROWN AND MELVIN L. WULF FOR
PETITIONER. 

ARTHUR K. BOLTON, ATTORNEY GENERAL OF GEORGIA, G. ERNEST TIDWELL,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, MARION O. GORDON, ASSISTANT
ATTORNEY GENERAL, AND WILLIAM R. CHILDERS, JR., DEPUTY ASSISTANT
ATTORNEY GENERAL, FOR RESPONDENT. 
..END :




SHAKIN V. BOARD OF MEDICAL EXAMINERS OF CALIFORNIA, 390 U.S. 410 


       SHAKIN V. BOARD OF MEDICAL EXAMINERS OF CALIFORNIA. 

        APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 1071.  DECIDED MARCH 18, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

BURTON MARKS AND HARVEY A. SCHNEIDER FOR APPELLANT. 
..END :












MCBRIDE V. SMITH, 390 U.S. 411 


       MCBRIDE V. SMITH, COMMANDANT, UNITED STATES COAST GUARD. 

        ON PETITION FOR REHEARING. 

        NO. 1105, OCTOBER TERM, 1966.  DECIDED MARCH 18, 1968. 


REHEARING GRANTED AND DENIAL OF CERTIORARI, 387 U.S. 932, VACATED. 
CERTIORARI GRANTED; 369 F.2D 65, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR REHEARING IS GRANTED AND THE ORDER OF MAY 29, 1967,
DENYING CERTIORARI IS VACATED.  THE PETITION FOR A WRIT OF CERTIORARI
IS GRANTED, THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT VACATED AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR FURTHER
CONSIDERATION IN LIGHT OF SCHNEIDER V. SMITH, ANTE, P. 17, IN
ACCORDANCE WITH THE SUGGESTION OF THE SOLICITOR GENERAL AND UPON AN
INDEPENDENT EXAMINATION OF THE ENTIRE RECORD. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS PETITION. 

MELVIN L. WULF AND MARVIN M. KARPATKIN FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD FOR RESPONDENT. 
..END :























MCSURELY V. RATLIFF, 390 U.S. 412 


       MCSURELY ET AL. V. RATLIFF ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN

       DISTRICT OF KENTUCKY. 

        NO. 1113.  DECIDED MARCH 18, 1968. 


APPEAL DISMISSED.  STAY HERETOFORE GRANTED, POST, PL. 914, CONTINUED
FOR 30 DAYS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  THE STAY HERETOFORE GRANTED, POST, P. 914, IS
CONTINUED FOR 30 DAYS IN ORDER TO AFFORD THE APPELLANTS AN OPPORTUNITY
TO APPLY TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FOR A STAY.  IF SUCH TIMELY APPLICATION IS MADE, THE STAY ENTERED BY
THIS COURT SHALL REMAIN IN EFFECT UNTIL THE COURT OF APPEALS ACTS ON
THAT APPLICATION. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 

DAN JACK COMBS, ARTHUR KINOY, WILLIAM M. KUNSTLER AND MORTON STAVIS
FOR APPELLANTS. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :



















REED V. MISSISSIPPI, 390 U.S. 413 


       REED V. MISSISSIPPI. 

        APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

        NO. 858, MISC.  DECIDED MARCH 18, 1968. 


199 SO.2D 803, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT THE PAPERS SHOULD BE
TREATED AS A PETITION FOR A WRIT OF CERTIORARI AND THAT CERTIORARI BE
GRANTED. 

JOE T. PATTERSON, ATTORNEY GENERAL OF MISSISSIPPI, AND GUY N.
ROGERS, ASSISTANT ATTORNEY GENERAL, FOR APPELLEE. 
..END :







NORFOLK & W.R. CO. V. TAX COMM'N., 390 U.S. 317 


       NORFOLK & WESTERN RAILWAY CO. ET AL. V. MISSOURI STATE TAX

           COMMISSION ET AL.

        APPEAL FROM THE SUPREME COURT OF MISSOURI. 

        NO. 324.  ARGUED JANUARY 25, 1968.-- DECIDED MARCH 11,

           1968. 


APPELLANT N & W, A PREDOMINANTLY COAL-CARRYING RAILROAD WITH
OPERATIONS CENTERED IN THE EASTERN PART OF THE COUNTRY AND WHICH OWNED
NO FIXED PROPERTY AND ONLY MINIMAL ROLLING STOCK IN MISSOUR, LEASED THE
PROPERTY OF THE WABASH RAILROAD AND BECAME OBLIGATED TO PAY 1965 TAXES
ON FIXED PROPERTY AND ROLLING STOCK LOCATED IN MISSOURI.  A STATE
STATUTE PRESCRIBES A FORMULA FOR DETERMINING THE AMOUNT OF ROLLING
STOCK OF AN INTERSTATE RAILROAD THAT MISSOURI SHALL ASSESS FOR PURPOSES
OF AD VALOREM TAXATION.  THE STATUTE APPORTIONS TO MISSOURI A PART OF
THE ENTIRE VALUE OF ALL ROLLING STOCK OF AN INTERSTATE RAILROAD ON THE
RATIO OF MILES OPERATED IN MISSOURI TO THE RAILROAD'S TOTAL ROAD
MILEAGE.  APPLYING THAT FORMULA, WHICH RESULTED IN THE POSTULATION THAT
N & W'S ROLLING STOCK IN MISSOURI CONSTITUED 8.2824% OF ITS TOTAL
ROLLING STOCK, , THE MISSOURI TAX COMMISSION PUT N & W'S ROLLING STOCK
ASSESSMENT AT $19,891,757.  N & W CHALLENGED THE ASSESSMENT, WHICH IT
SHOWED WAS MORE THAN 2 1/2 TIMES THE VALUE OF N & W'S ROLLING STOCK IN
THE STATE ON TAX DAY AND MORE THAN TWICE WABASH'S ASSESSMENT FOR
PRACTICALLY THE SAME PROPERTY IN THE PREVIOUS YEAR.  NEITHER N & W'S
ROLLING STOCK IN MISSOURI (ABOUT 2.71% OF N & W'S TOTAL ROLLING STOCK
BY NUMBER OF UNITS AMD 3.16% BY VALUE), THE OVERWHELMING AMOUNT OF
WHICH HAD BEEN LEASED FROM WABASH, NOR THE MISSOURI OPERATIONS OF N & W
AND WABASH HAD MATERIALLY INCREASED IN THE INTERVENING PERIOD.  N & W'S
COAL OPERATIONS REQUIRE A GREAT DEAL OF SPECIALIZED EQUIPMENT, SCARCELY
ANY OF WHICH ENTERS MISSOURI, AND TRAFFIC DENSITY ON MISSOURI TRACKS IS
BUT 54% OF TRAFFIC DENSITY ON THE N & W SYSTEM AS A WHOLE.  THE TAX
COMMISSION'S ASSESSMENT AGAINST N & W WAS AFFIRMED ON APPEAL.  THE
MISSOURI SUPREME COURT HELD THAT USE OF THE MILEAGE FORMULA COULD BE
JUSTIFIED ON THE THEORY THAT THE ROLLING STOCK REGULARLY EMPLOYED IN
ONE STATE HAS AN "ENHANCED VALUE" WHEN CONNECTED TO "AN INTEGRATED
OPERATIONAL WHOLE."  HELD: 

1.  APPLICATION OF THE MILEAGE FORMULA RESULTED IN AN ASSESSMENT
WHICH ON THE RECORD IN THIS CASE WENT FAR BEYOND THE VALUE OF
APPELLANTS' ROLLING STOCK IN MISSOURI AND VIOLATED THE DUE PROCESS AND
COMMERCE CLAUSES.  PP. 323-329. 

(A) A STATE MAY IMPOSE A PROPERTY TAX UPON ITS FAIR SHARE OF AN
INTERSTATE TRANSPORTATION ENTERPRISE, INCLUDING A PORTION OF THE
ENTERPRISE'S INTANGIBLE VALUE.  PP. 323-324. 

  (B) THOUGH A STATE HAS CONSIDERABLE LATITUDE IN DEVISING FORMULAS
TO MEASURE TANGIBLE PROPERTY WITHIN ITS BORDERS, IT IS NOT ENTITLED TO
TAX TANGIBLE OR INTANGIBLE PROPERTY UNCONNECTED WITH THE STATE.  PP.
324-325. 

  (C) APPELLANTS' EVIDENCE SATISFIED THE BURDEN WHICH RESTS ON A
RAILROAD ATTACKING A MILEAGE FORMULA OF SHOWING THAT THE FORMULA
REACHED ASSETS OUTSIDE THE STATE, AND MISSOUR HAS NOT COUNTERED SUCH
EVIDENCE HERE.  PP. 326-327. 

  (D) THOUGH THIS COURT'S DECISIONS RECOGNIZE THE PRACTICAL
DIFFICULTIES IN APPLYING A MILEAGE FORMULA, THEY FORBID AN UNEXPLAINED
DISCREPANCY AS GROSS AS THAT HERE REVEALED.  P. 327. 

  (E) THE RECORD IS TOTALLY BARREN OF EVIDENCE RELATING TO THE
ENHANCED VALUE OF PROPERTY IN MISSOURI BY REASON OF THE INCORPORATION
OF SUCH PROPERTY INTO THE ENTIRE N & W SYSTEM.  PP. 327-329. 

2.  THE MISSOURI SUPREME COURT MAY REMAND THE CASE TO THE
APPROPRIATE TRIBUNAL TO REOPEN THE RECORD FOR ADDITIONAL EVIDENCE
SUPPORTING THE ASSESSMENT.  P. 330. 

426 S.W.2D 362, VACATED AND REMANDED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE BRINGS BEFORE US, ONCE AGAIN, TROUBLESOME PROBLEMS ARISING
FROM STATE TAXATION OF AN INTERSTATE COMMERCIAL ENTERPRISE.  AT ISSUE
IS A TAX ASSESSMENT PURSUANT TO A MISSOURI STATUTE SPEICFYING THE
MANNER IN WHICH RAILROAD ROLLING STOCK IS TO BE ASSESSED FOR THE
STATE'S AD VALOREM TAX ON THAT PROPERTY.  /1/ 

IN 1964 THE NORFOLK & WESTERN RAILWAY CO. (N & W), A VIRGINIA
CORPORATION WITH INTERSTATE RAIL OPERATIONS, LEASED ALL OF THE PROPERTY
OF APPELLANT WABASH RAILROAD COMPANY.  THE WABASH OWNED SUBSTANTIAL
FIXED PROPERTY AND ROLLING STOCK, AND DID SUBSTANTIAL BUSINESS IN
MISSOURI AS WELL AS IN OTHER STATES.  PRIOR TO THE LEASE, N & W OWNED
NO FIXED PROPERTY AND ONLY A MINIMAL AMOUNT OF ROLLING STOCK IN
MISSOURI.  N & W IS PRIMARILY A COAL-CARRYING RAILROAD.  MUCH OF ITS
EQUIPMENT AND ALL OF ITS SPECIALIZED COAL-CARRYING EQUIPMENT ARE
GENERALLY LOCATED IN THE COAL REGIONS OF VIRGINIA, WEST VIRGINIA, AND
KENTUCKY, AND ALONG THE COAL-FERRYING ROUTES FROM THOSE REGIONS TO THE
EASTERN SEABORAD THE THE GREAT ALKES.  SCARCELY ANY OF THE SPECIALIZED
EQUIPMENT EVER ENTERS MISSOURI.  ACCORDING TO APPELLANTS, THE WABASH
PROPERTY IN MISSOURI WAS LEASED BY N & W IN ORDER TO DIVERSIFY ITS
BUSINESS, NOT TO PROVIDE THE OPPORTUNITY FOR AN INTEGRATED THROUGH
MOVEMENT OF TRAFFIC. 

BY THE TERMS OF THE LEASE, THE N & W BECAME OBLIGATED TO PAY THE
1965 TAXES ON THE PROPERTY OF THE WABASH IN MISSOURI AND ELSEWHERE. 
/2/  UPON RECEIVING NOTICE OF THE 1965 ASSESSMENT FROM THE APPELLEE
MISSOURI TAX COMMISSION, THE N & W FILED A REQUEST FOR AN ADJUSTMENT
AND HEARING BEFORE THE COMMISSION.  THE HEARING WAS HELD, AND THE
COMMISSION SUSTAINED ITS ASSESSMENT AGAINST THE TAXPAYER'S CHALLENGE. 
ON JUDICIAL REVIEW, THE COMMISSION'S DECISION WAS AFFIRMED WITHOUT
OPINION BY THE CIRCUIT COURT OF COLE COUNTY, AND THEN BY THE SUPREME
COURT OF MISSOURI.  APPELLANTS FILED AN APPEAL IN THIS COURT,
CONTENDING THAT THE ASSESSMENT IN EFFECT REACHED PROPERTY NOT LOCATED
IN MISSOURI AND THUS VIOLATED THE DUE PROCESS CLAUSE AND THE COMMERCE
CLAUSE OF THE UNITED STATES CONSTITUTION.  WE NOTED PROBABLE
JURISDICTION.  389 U.S. 810 (1967). 

        I. 

THE MISSOURI PROPERTY TAXABLE TO THE N & W WAS ASSESSED BY THE STATE
TAX COMMISSION AT $31,298,939.  OF THIS SUM, $12,177,597 RELATES TO
FIXED PROPERTY WITHIN THE STATE, AS ASSESSMENT THAT IS NOT CHALLENEGED
BY APPELLANTS.  THEIR ATTACK IS AIMED ONLY AT THAT PORTION OF THE
ASSESSMENT RELATING TO ROLLING STOCK, $19,981,757.  /3/ 

WITH RESPECT TO THE ASSESSMENT OF ROLLING STOCK, THE COMMISSION USED
THE FAMILIAR MILEAGE FORMULA AUTHORIZED BY THE MISSOURI STATUTE.  IN
RELEVANT PART, THIS PROVIDES (SEC. 151.060 SUBD. 3): 

" . . . WHEN ANY RAILROAD SHALL EXTEND BEYOND THE LIMITS OF THIS
STATE AND INTO ANOTHER STATE IN WHICH A TAX IS LEVIED AND PAID ON THE
ROLLING STOCK OF SUCH ROAD, THEN THE SAID COMMISSION SHALL ASSESS,
EQUALIZE AND ADJUST ONLY SUCH PROPORTION OF THE TOTAL VALUE OF ALL THE
ROLLING STOCK OF SUCH RAILROAD COMPANY AS THE NUMBER OF MILES OF SUCH
ROAD IN THIS STATE BEARS TO THE TOTAL LENGTH OF THE ROAD AS OWNED OR
CONTROLLED BY SUCH COMPANY." 

THE COMMISSION ARRIVED AT THE ASSESSMENT OF ROLLING STOCK BY FIRST
DETERMINING THE VALUE OF ALL ROLLING STOCK, REGARDLESS OF WHERE
LOCATED, OWNED OR LEASED BY THE N & W AS OF THE TAX DAY, JANUARY 1,
1965.  VALUE WAS ASCERTAINED BY TOTALING THE ORIGINAL COST, LESS
ACCRUED DEPRECIATION AT 5% A YEAR UP TO 75% OF COST, OF EACH
LOCOMOTIVE, CAR, AND OTHER PIECE OF MOBILE EQUIPMENT.  TO THE TOTAL
VALUE, $513,309,877, WAS APPLIED AN "EQUALIZING FACTOR" OF 45%,
EMPLOYED IN ASSESSING ALL RAILROAD PROPERTY IN AN ATTEMPT TO BRING SUCH
ASSESSMENTS DOWN TO THE LEVEL OF OTHER PROPERTY ASSESSMENT IN
MISSOURI.  THE COMMISSION NEXT FOUND THAT 8.2824% OF ALL THE MAIN AND
BRANCH LINE ROAD (EXCLUDING SECONDARY AND SIDE TRACKS) OWNED, LEASED,
OR CONTROLLED BY THE N & W WAS SITUATED IN MISSOURI.  THIS PERCENTAGE
WAS APPLIED TO THE EQUALIZED VALUE OF ALL N & W ROLLING STOCK, AND THE
RESULTING FIGURE WAS $19,981,757. 

THERE IS NO SUGGESTION IN THIS CASE THAT THE COMMISSION FAILED TO
FOLLOW THE LITERAL COMMAND OF THE STATUTE.  THE PROBLEM ARISES BECAUSE
OF APPELLANTS' CONTENTION THAT, IN MECHANICALLY APPLYING THE STATUTORY
FORMULA, THE COMMISSION HERE ARRIVED AT AN UNCONSCIONABLE AND
UNCONSTITUTIONAL RESULT.  IT IS THEIR SUBMISSION THAT THE ASSESSMENT
WAS SO FAR OUT OF LINE WITH THE ACTUAL FACTS OF RECORD WITH RESPECT TO
THE VALUE OF TAXABLE ROLLING STOCK IN THE STATE AS TO AMOUNT TO AN
UNCONSTITUTIONAL ATTEMPT TO EXERCISE STATE TAXING POWER ON OUT-OF-STATE
PROPERTY. 

APPELLANTS SUBMITTED EVIDENCE BASED UPON AN INVENTORY OF ALL N & W
ROLLING STOCK THAT WAS ACTUALLY IN MISSOURI ON TAX DAY.  THE EQUALIZED
VALUE OF THIS ROLLING STOCK, CALCULATED ON THE SAME COST-LESS
DEPRECIATION BASIS EMPLOYED BY THE COMMISSION, WAS APPROXIMATELY
$,7600,000, AS COMPARED WITH THE ASSESSED VALUE OF $19,981,000. 
APPELLANTS ALSO SUBMITTED EVIDENCE TO SHOW THAT THE TAX-DAY INVENTORY
WAS NOT UNUSUAL.  THE EVIDENCE SHOWED THAT, BOTH BEFORE AND IN THE
MONTHS IMMEDIATELY AFTER THE WABASH LEASE, THE EQUALISED VALUE OF THE N
& W ROLLING STOCK ACTUALLY IN MISSOURI NEVER RANGED FAR ABOVE THE
$7,600,000 FIGURE.  IN THE PRECEDING YEAR, 1964, THE ROLLING STOCK
ASSESSMENT AGAINST THE WABASH WAS ONLY $9,177,683, AND APPELLANTS
DEMONSTRATED THAT NEITHER THE AMOUNT OF ROLLING STOCK IN MISSOURI NOR
THE MISSOURI OPERATIONS OF THE N & W AND WABASH HAD MATERIALLY
INCREASED IN THE INTERVENING PERIOD.  /4/  THE ASSESSMENT OF THE FIXED
PROPERTIES (FOR WHICH NO MILEAGE FORMULA WAS APPLIED) HARDLY INCREASED
BETWEEN 1964 AND 1965.  IN 1964, PRIOR TO THE LEASE, THE FIXED
PROPERTIES IN MISSOURI WERE ASSESSED AT $12,092,594; IN 1965, AFTER THE
LEASE, THE ASSESSMENT WAS $12,177,597. 

THE SUPREME COURT OF MISSOURI CONCLUDED THAT THE RESULT REACHED BY
THE COMMISSION WAS JUSTFIABLE.  IT POINTED OUT THAT THE STATUTORY
METHOD USED BY THE COMMISSION PROCEEDS ON THE ASSUMPTION THAT "ROLLING
STOCK IS SUBSTANTIALLY EVENLY DIVIDED THROUGHOUT THE RAILROAD'S ENTIRE
SYSTEM, AND THE PERCENTAGE OF ALL UNITS WHICH ARE LOCATED IN MISSOURI
AT ANY GIVEN TIME, OR FOR ANY GIVEN PERIOD OF TIME, WILL BE
SUBSTANTIALLY THE SAME AS THE PERCENTAGE OF ALL THE MILES OF ROAD OF
THE RAILROAD LOCATED IN MISSOURI."  IT THEN HELD THAT THE EVALUATION
FOUND BY THE COMMISSION COULD BE JUSTIFIED ON THE THEORY OF
"ENHANCEMENT," ALTHOUGH THE COMMISSION HAD NOT REFERRED TO THAT
PRINCIPLE.  THE COURT DESCRIBED THE THEORY AS FOLLOWS: 

"THE THEORY UNDERLYING SUCH METHOD OF ASSESSMENT IS THAT ROLLING
STOCK REGULARLY EMPLOYED IN ONE STATE HAS AN ENCHANCED OR AUGMENTED
VALUE WHEN IT IS CONNECTED TO, AND BECAUSE OF ITS CONNECTION WITH, AN
INTEGRATED OPERATIONAL WHOLE AND MAY, THEREFORE, BE TAXED ACCORDING TO
ITS VALUE 'AS PART OF THE SYSTEM, ALTHOUGH THE OTHER PARTS BE OUTSIDE
THE STATE;-- IN OTHER WORDS, THE TAX MAY BE MADE TO COVER THE ENHANCED
VALUE WHICH COMES TO THE PROPERTY IN THE STATE THROUGH ITS ORGANIC
RELATION TO THE SYSTEM.'  PULLMAN CO. V. RICHARDSON, 216 U.S. 330,
338."  THE COURT CORRECTLY NOTED, HOWEVER, THAT "EVEN IF THE VALIDITY
OF SUCH METHODS BECONCEDED, THE RESULTS, TO BE VALID, MUST BE FREE OF
EXCESSIVENESS AND DISCRIMINATION."  IT CONCLUDED THAT IN THE PRESENT
CASE, THE RESULT REACHED BY THE COMMISSION UAS JUSTIFIABLE.  WE
DISAGREE.  IN OUR OPINION, THE ASSESSMENT VIOLATES THE DUE PROCESS AND
COMMERCE CLAUSES OF THE CONSTITUTION. 

        II. 

ESTABLISHED PRINCIPLES ARE NOT LACKING IN THIS MUCH DISCUSSED AREA
OF THE LAW.  IT IS OF COURSE SETTLED THAT A STATE MAY IMPOSE A PROPERTY
TAX UPON ITS FAIR SHARE OF AN INTERSTATE TRANSPORTATION ENTERPRISE. 
MARYE V. BALTIMORE & OHIO R. CO., 127 U.S. 117, 123-124 (1888);
PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141 U.S. 18 (1891); OTT V.
MISSISSIPPI VALLEY BARGE LINE CO., 336 U.S. 169 (1949); BRANIFF
AIRWAYS, INC. V. NEBRASKA STATE BOARD OF EQUALIZATION AND ASSESSMENT,
347 U.S. 590 (1954).  THAT FAIR SHARE MAY BE REGARDED AS THE VALUE,
APPROPRIATELY ASCERTAINED, OF TANGIBLE ASSETS PERMANENTLY OR HABITUALLY
EMPLOYED IN THE TAXING STATE, INCLUDING A PORTION OF THE INTANGIBLE, OR
"GOING-CONCERN," VALUE OF THE ENTREPRISE.  RAILWAY EXPRESS AGENCY V.
VIRGINIA, 347 U.S. 359, 364 (1954); CUDAHY PACKING CO. V. MINNESOTA,
246 U.S. 450, 455 (1918); ADAMS EXPRESS CO. V. OHIO STATE AUDITOR, 166
U.S. 185, 218-255 (1897).  THE VALUE MAY BE ASCERTAINED BY REFERENCE TO
THE TOTAL SYSTEM OF WHICH THE INTRASTATE ASSETS ARE A PART.  AS THE
COURT HAS STATED THE RULE, "THE TAX MAY BE MADE TO COVER THE ENHANCED
VALUE WHICH COMES TO THE (TANGIBLE) PROPERTY IN THE STATE THROUGH ITS
ORGANIC RELATION TO THE (INTERSTATE) SYSTEM."  PULLMAN CO. V.
RICHARDSON, 261 U.S. 330, 338 (1923).  GOING-CONCERN VALUE, OF COURSE,
IS AN ELUSIVE CONCEPT NOT SUSCEPTIBLE OF EXACT MEASUREMENT.  ROWLEY V.
CHICAGO & N.W.R. CO., 293 U.S. 102, 109 (1934); NASHVILLE, C. & ST.
L.R. CO. V. BROWNING, 310 U.S. 362, 365-366 (1940).  AS A CONSEQUENCE,
THE STATES HAVE BEEN PERMITTED CONSIDERABLE LATITUDE IN DEVISING
FORMULAS TO MEASURE THE VALUE OF TANGIBLE PROPERTY LOCATED WITHIN THEIR
BORDERS.  UNION TANK LINE CO. V. WRIGHT, 249 U.S. 275, 282 (1919). 
SUCH FORMULAS USUSALLY INVOLVE A DETERMINATION OF THE PERCENTAGE OF THE
TAXPAYER'S TANGIBLE ASSETS SITUATED IN THE TAXING STATE AND THE
APPLICATION OF THIS PERCENTAGE TO A FIGURE REPRESENTING THE TOTAL GOING
CONCERN VALUE OF THE ENTERPRISE.  SEE, E.G., ROWLEY V. CHICAGO & N.W.R.
CO., 293 U.S. 102 (1934); PITTSBURGH, C., C. & ST. L.R. CO. V. BACKUS,
254 U.S. 421 (1894).  A NUMBER OF SUCH FORMULAS HAVE BEEN SUSTAINED BY
THE COURT, EVEN THOUGH IT COULD NOT BE DEMONSTRATED THAT THE RESULTS
THEY YIELDED WERE PRECISE EVALUATIONS OF ASSETS LOCATED WITHIN THE
TAXING STATE.  SEE, E.G., NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310
U.S. 362, 365-366 (1940). 

ON THE OTHER HAND, THE COURT HAS INSISTED FOR MANY YEARS THAT A
STATE IS NOT ENTITLED TO TAX TANGIBLE OR INTANGIBLE PROPERTY THAT IS
UNCONNECTED WITH THE STATE.  THE DELAWARE RAILROAD TAX, 18 WALL.  206,
229 (1874); FARGO V. HART, 193 U.S. 490, 499 (1904).  IN SOME CASES THE
COURT HAS CONCLUDED THAT STATES HAVE, IN FACT, CAST THEIR TAX BURDEN
UPON PROPERTY LOCATED BEYOND THEIR BORDERS.  FARGO V. HART, 193 U.S.
490, 499, 503 (1904); UNION TANK LINE CO. V. WRIGHT, 249 U.S. 275, 283
286 (1919); WALLACE V. HINES, 253 U.S. 66, 69-70 (1920); SOUTHERN R.
CO. V. KENTUCKY, 274 U.S. 76, 81-84 (1927).  THE TAXATION OF PROPERTY
NOT LOCATED IN THE TAXING STATE IS CONSTITUTIONALLY INVALID, BOTH
BECAUSE IT IMPOSES AN ILLEGITIMATE RESTRAINT ON INTERSTATE COMMERCE AND
BECAUSE IT DENIES TO THE TAXPAYER THE PROCESS THAT IS HIS DUE.  /5/  A
STATE WILL NOT BE PERMITTED, UNDER THE SHELTER OF AN IMPRECISE
ALLOCATION FORMULA OR BY IGNORING THE PECULIARITIES OF A GIVEN
ENTERPRISE, TO "PROJECT THE TAXING POWER OF THE STATE PLAINLY BEYOND
ITS BORDERS."  NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362,
365 (1940).  ANY FORMULA USED MUST BEAR A RATIONAL RELATIONSHIP, BOTH
ON ITS FACE AND IN ITS APPLICATION, TO PROPERTY VALUES CONNECTED WITH
THE TAXING STATE.  FARGO V. HART, 193 U.S. 490, 499-500 (1904).  /6/

        III. 

APPLYING THESE PRINCIPLES TO THE FACTS OF THE CASE NOW BEFORE US, WE
CONCLUDE THAT MISSOURI'S ASSESSMENT OF N & W'S ROLLING STOCK CANNOT BE
SUSTAINED.  THIS COURT HAS, IN VARIOUS CONTEXTS, PERMITTED MILEAGE
FORMULAS AS A BASIS FOR TAXATION.  SEE, E.G., PITTSBURGH, C., C. & ST.
L.R. CO. V. BACKUS, 154 U.S. 421 (1894).  A RAILROAD CHALLENGING THE
RESULT REACHED BY THE APPLICATION OF SUCH A FORMULA HAS A HEAVY
BURDEN.  SEE BUTLER BROTHERS V. MCCOLGAN, 315 U.S. 501, 507 (1942);
NORFOLK & WESTERN R. CO. V. NORTH CAROLINA, 297 U.S. 682, 688 (1936). 
IT IS CONFRONTED BY THE VASTNESS OF THE STATE'S TAXING POWER AND THE
LATITUDE THAT THE EXERCISE OF THAT POWER MUST BE GIVEN BEFORE IT
ENCOUNTERS CONSTITUTIONAL RESTRAINTS.  ITS TASK IS TO SHOW THAT
APPLICATION OF THE MILEAGE METHOD IN ITS CASE HAS RESULTED IN SUCH
GROSS OVERREACHING, BEYOND THE VALUES REPRESENTED BY THE INTRASTATE
ASSETS PURPORTED TO BE TAXED, AS TO VIOLATE THE DUE PROCESS AND
COMMERCE CLAUSES OF THE CONSTITTUION.  CF. CAPITOL GREYHOUND LINES V.
BRICE, 339 U.S. 542, 547 (1950).  BUT HERE THE APPELLANTS HAVE BORNE
THAT BURDEN, AND THE STATE HAS MADE NO EFFORT TO OFFSET THE CONVINCING
CASE THAT THEY HAVE MADE. 

HERE, THE RECORD SHOWS THAT RIGID APPLICATION OF THE MILEAGE FORMULA
LED TO A GROSSLY DISTORTED RESULT.  THE ROLLING STOCK IN MISSOURI WAS
ASSESSED TO N & W AT $19,981,757.  IT WAS PRACTICALLY THE SAME PROPERTY
THAT HAS BEEN ASSESSED THE PRECEDING YEAR AT $9,177,683 TO THE WABASH. 
APPELLANTS INTRODUCED EVIDENCE OF THE RESULTS OF AN ACTUAL COUNT OF THE
ROLLING STOCK IN MISSOURI.  ON THE BASIS OF THIS ACTUAL COUNT, THE
EQUALIZED ASSESSMENT WOULD HAVE BEEN LESS THAN HALF OF THE VALUE
ASSESSED BY THE STATE COMMISSION.  THE COMMISSION'S MILEAGE FORMULA
RESULTED IN POSTULATING THAT N & W'S ROLLING STOCK USUALLY EMPLOYED IN
THE STATE COMPRISED ONLY ABOUT 2.71% BY NUMBER OF UNITS (AND ONLY 3.16%
BY COST-LESS-DEPRECIATION VALUE) OF THE TOTAL N&W FLEET.     OUR
DECISIONS RECOGNIZE THE PRACTICAL DIFFICULTIES INVOVLED AND DO NOT
REQUIRE ANY CLOSE CORRESPONDENCE BETWEEN THE RESULT OF COMPUTATIONS
USING THE MILEAGE FORMULA AND THE VALUE OF PROPERTY ACTUALLY LOCATED IN
THE STATE, BUT OUR CASES CERTAINLY FORBID AN UNEXPLAINED DISCREPANCY AS
GROSS AS THAT IN THIS CASE.  /7/  SUCH DISCREPANCY CERTAINLY MEANS THAT
THE IMPACT OF THE STATE TAX IS NOT CONFINED TO INTRASTATE PROPERTY EVEN
WITHIN THE BROAD TOLERANCE PERMITTED.  THE FACTS OF LIFE DO NOT NEATLY
LEND THEMSELVES TO THE NICETIES OF CONSTITUTIONALISM; BUT NEITHER DOES
THE CONSTITUTION TOLERATE ANY RESULT, HOWEVER DISTORTED, JUST BECAUSE
IT IS THE PRODUCT OF A CONVENIENT MATHEMATICAL FORMULA WHICH, IN MOST
SITUATIONS, MAY PRODUCE A TOLERABLE PRODUCT. 

THE BASIC DIFFICULTY HERE IS THAT THE RECORD IS TOTALLY BARREN OF
ANY EVIDENCE RELATING TO ENHANCEMENT OR TO GOING-CONCERN OR INTANGIBLE
VALUE, OR TO ANY OTHER FACTOR WHICH MIGHT OFFSET THE DEVASTATING EFFECT
OF THE DEMONSTRATED DISCREPANCY.  THE MISSOURI SUPREME COURT ATTEMPTED
TO JUSTIFY THE RESULT BY REFERENCE TO "ENHANCED" VALUE, BUT THE
MISSOURI COMMISSION MADE NO EFFORT TO SHOW SUCH VALUE OR TO MEASURE THE
EXTENT TO WHICH IT MIGHT BE ATTRIBUTED TO THE ROLLING STOCK IN THE
STATE.  IN FACT, N & W SHOWED THAT IT IS CHIEFLY A COAL-CARRYING
RAILROAD, 70% OF WHOSE 1964 REVENUE WAS DERIVED FROM COAL TRAFFIC.  IT
DEMONSTRATED THAT ITS COAL OPERATIONS REQUIRE A GREAT DEAL OF
SPECIALIZED EQUIPMENT, SCARCELY ANY OF WHICH EVER ENTERS MISSOURI.  IT
SHOWED THAT TRAFFIC DENSITY ON ITS MISSOURI TRACKS WAS ONLY 54% OF
TRAFFIC DENSITY ON THE N & W SYSTEM AS A WHOLE.  FINALLY, IT PROVED
THAT THE OVERWHELMING MAJORITY OF ITS ROLLING STOCK REGULARLY PRESENT
IN MISSOURI WAS ROLLING STOCK IT HAS LEASED FROM THE WABASH.  AS LONG
AGO AS PITTSBURGH, C., C. & ST. L.R. CO. V. BACKUS, 154 U.S. 421
(1894), WE INDICATED THAT AN OTHERWISE VALID MILEAGE FORMULA MIGHT NOT
BE VALIDLY APPLIED TO ASCERTAIN THE VALUE OF TANGIBLE ASSETS WITHIN THE
TAXING STATE IN EXCEPTIONAL SITUATIONS, FOR EXAMPLE, "WHERE IN CERTAIN
LOCALITIES THE COMPANY IS ENGAGED IN A PARTICULAR KIND OF BUSINESS
REQUIRING FOR SOLE USE IN SUCH LOCALITIES AN EXTRA AMOUNT OF ROLLING
STOCK."  ID., AT 431.  BY THE N & W. ITS DECISION THAT THESE DATA DID
NOT PLACE THIS CASE WITHIN THE BY TNE N&W.  ITS DECISION THAT THESE
DATA DID NOT PLACE THIS CASE WITHIN THE REALM OF "EXCEPTIONAL
SITUATIONS" RECOGNIZED BY THIS COURT WAS APPARENTLY BASED ON THE
CONCLUSION THAT THE LEASE TRANSACTION BETWEEN WABASH AND THE N & W HAD
INCREASED THE VALUE OF TANGIBLE ASSETS FORMERLY BELONGING TO THE TWO
SEPARATE LINES.  THIS MAY BE TRUE, BUT IT DOES NOT FOLLOW THAT THE
CONSTITUTION PERMITS US, WITHOUT EVIDENCE AS TO THE AMOUNT OF
ENHANCEMENT THAT MAY BE ASSUMED, TO BRIDGE THE CHASM BETWEEN THE
FORMULA AND THE FACTS OF RECORD.  THE DIFFERENCE BETWEEN THE ASSESSED
VALUE AND THE ACTUAL VALUE AS SHOWN BY THE EVIDENCE TO WHICH WE HAVE
REFERRED IS TOO GREAT TO BE EXPLAINED BY THE MERE ASSERTION, WITHOUT
MORE, THAT IT IS DUE TO AN ASSUMED AND NONPARTICULARIZED INCREASE IN
INTANGIBLE VALUE.  SEE WALLACE V. HINES, 253 U.S. 66, 69 (1920). 

AS THE COURT RECOGNIZED IN FARGO V. HART, 193 U.S. 490, 499-500
(1904), CARE MUST BE EXERCISED LEST THE MILEAGE FORMULA 

"BE MADE A MEANS OF UNLAWFULLY TAXING THE PRIVILEGE, OR PROPERTY
OUTSIDE THE STATE, UNDER THE NAME OF ENHANCED VALUE OR GOOD WILL, IF IT
IS NOT CLOSELY CONFINED TO ITS TRUE MEANING.  SO LONG AS IT FAIRLY MAY
BE ASSUMED THAT THE DIFFERENT PARTS OF A LINE ARE ABOUT EQUAL IN VALUE
A DIVISION BY MILEAGE IS JUSTIFIABLE.  BUT IT IS RECOGNIZED IN THE
CASES THAT IF FOR INSTANCE A RAILROAD COMPANY HAD TERMINALS IN ONE
STATE EQUAL IN VALUE TO ALL THE REST OF THE LINE THROUGH AN ANOTHER,
THE LATTER STATE COULD NOT MAKE USE OF THE UNITY OF THE ROAD TO
EQUALIZE THE VALUE OF EVERY MILE.  THAT WOULD BE TAXING PROPERTY
OUTSIDE OF THE STATE UNDER A PRETENSE."  WE REPEAT THAT IT IS NOT
NECESSARY THAT A STATE DEMONSTRATE THAT ITS USE OF THE FORMULA HAS
RESULTED IN AN EXACT MEASURE OF VALUE.  BUT WHEN A TAXPAYER COMES
FORWARD WITH STRONG EVIDENCE TENDING TO PROVE THAT THE MILEAGE FORMULA
WILL YIELD A GROSSLY DISTORTED RESULT IN ITS PARTICULAR CASE, THE STATE
IS OBLIGED TO COUNTER THAT EVIDENCE OR TO MAKE THE ACCOMMODATIONS
NECESSARY TO ASSURE THAT ITS TAXING POWER IS CONFINED TO ITS
CONSTITUTIONAL LIMITS.  IF IT FAILS TO DO SO AND IF THE RECORD SHOWS
THAT THE TAXPAYER HAS SUSTAINED THE BURDEN OF PROOF TO SHOW THAT THE
TAX IS SO EXCESSIVE AS TO BURDEN INTERSTATE COMMERCE, THE TAXPAYER MUST
PREVAIL. 

        IV. 

ACCORDINGLY, WE CONCLUDE THAT, ON THE PRESENT RECORD, MISSOURI HAS
IN THIS CASE EXCEEDED THE LIMITS OF HER CONSTITUTIONAL POWER TO TAX, AS
DEFINED BY THE DUE PROCESS AND COMMERCE CLAUSES.  IT WILL BE OPEN TO
THE MISSOURI SUPREME COURT, SO FAR AS OUR ACTION TODAY IS CONCERNED, TO
REMAND THE CASE TO THE APPROPRIATE TRIBUNAL TO REOPEN THE RECORD FOR
ADDITIONAL EVIDENCE TO SUPPORT THE ASSESSMENT.  WE VACATE THE JUDGMENT
OF THE SUPREME COURT OF MISSOURI AND REMAND THE CAUSE TO IT FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH OUR DECISION. 

              VACATED AND REMANDED. 

/1/  THE TAX IN QUESTION APPLIES TO "ALL REAL PROPERTY . . . (AND)
TANGIBLE PERSONAL PROPERTY . . . OWNED, HIRED OR LEASED BY ANY RAILROAD
COMPANY . . . IN THIS STATE."  INTANGIBLE PERSONAL PROPERTY IS
EXPLICITLY EXEMPTED FROM THIS TAX.  MO. REV. STAT. SEC. 151.010
(1959). 

/2/  AS OF JANUARY 1, 1966, THE N&W PURCHASED THE WABASH ROLLING
STOCK THAT IT HAD PREVIOUSLY LEADED, WHILE CONTINUING TO LEASE WABASH
FIXED PROPERTY.  THIS CHANGE IN THE RELATIONSHIP BETWEEN N&W AND THE
WABASH HAS NO EFFECT ON THE ISSUES PRESENTED TO US.  OUR ANALYSIS WOULD
APPLY BOTH BEFORE AND AFTER THE PURCHASE OF THE WABASH ROLLING STOCK. 

/3/  THE COMMISSION DEDUCTED FROM THE SUM OF THESE TWO FIGURES
$860,415, REPRESENTING AN "ECONOMIC FACTOR" WHICH IS ALLOWED TO ALL
RAILROADS IN VARYING AMOUNTS.  EXACTLY THE SAME DEDUCTION HAD BEEN
ALLOWED THE WABASH IN EACH OF THE PRECEDING YEARS. 

/4/  APPELLANTS FURTHER ARGUE THAT THE ARBITRARINESS OF THE RESULT
REACHED HERE IS SHOWN BY THE FACT THAT IF THE ROLLING STOCK IN MISSOURI
HAD BEEN TAXABLE TO THE WABASH IN 1965, RATHER THAN TO N & W, THE
APPLICATION OF THE FORMULA TO THE SAME ROLLING STOCK WOULD HAVE
RESULTED IN AN ASSESSMENT OF LITTLE MORE THAN HALF OF THAT WHICH WAS
ACTUALLY LEVIED ($10,103,340). 

/5/  WE HAVE SAID:  "THE PROBLEM UNDER THE COMMERCE CLAUSE IS TO
DETERMINE 'WHAT PORTION OF AN INTERSTATE ORGANISM MAY APPROPRIATELY BE
ATTRIBUTED TO EACH OF THE VARIOUS STATES IN WHICH IT FUNCTIONS.' 
NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362, 365.  SO FAR AS
DUE PROCESS IS CONCERNED THE ONLY QUESTION IS WHETHER THE TAX IN
PRACTICAL OPERATION HAS RELATION TO OPPORTUNITIES, BENEFITS, OR
PROTECTION CONFERRED OR AFFORDED BY THE TAXING STATE.  SEE WISCONSIN V.
J.C. PENNEY CO., 311 U.S. 435, 444.  THOSE REQUIREMENTS ARE SATISFIED
IF THE TAX IS FAIRLY APPORTIONED TO THE COMMERCE CARRIED ON WITHIN THE
STATE."  OTT V. MISSISSIPPI VALLEY BARGE LINE CO., 336 U.S. 169, 174
(1949).  NEITHER APPELLANTS NOR APPELLEES CONTEND THAT THESE TWO
ANALYSES BEAR DIFFERENT IMPLICATIONS INSOFAR AS OUR PRESENT CASE IS
CONCERNED. 

/6/  AS THE COURT STATED IN WALLACE V. HINES, 253 U.S.,AT 69:  "THE
ONLY REASON FOR ALLOWING A STATE TO LOOK BEYOND ITS BORDERS WHEN IT
TAXES THE PROPERTY OF FOREIGN CORPORATIONS IS THAT IT MAY GET THE TRUE
VALUE OF THE THINGS WITHIN IT, WHEN THEY ARE PART OF AN ORGANIC SYSTEM
OF WIDE EXTENT, THAT GIVES THEM A VALUE ABOVE WHAT THEY OTHERWISE WOULD
POSSESS.  THE PURPOSE IS NOT . . . TO OPEN TO TAXATION WHAT IS NOT
WITHIN THE STATE.  THEREFORE NO PROPERTY OF . . . AN INTERSTATE ROAD
SITUATED ELSEWHERE CAN BE TAKEN INTO ACCOUNT UNLESS IT CAN BE SEEN IN
SOME PLAIN AND FAIRLY INTELLIGIBLE WAY THAT IT ADDS TO THE VALUE OF THE
ROAD AND THE RIGHTS EXERCISED IN THE STATE." 

/7/  "(IF THE RATIO OF THE VALUE OF THE PROPERTY IN (THE STATE) TO
THE VALUE OF THE WHOLE PROPERTY OF THE COMPANY BE LESS THAN THAT WHICH
THE LENGTH OF THE ROAD IN (THE STATE) BEARS TO ITS ENTIRE LENGTH, . . .
A TAX IMPOSED UPON THE PROPERTY IN (THE STATE) ACCORDING TO THE RATIO
OF THE LENGTH OF ITS RAOD TO THE LENGTH OF THE WHOLE ROAD MUST
NECESSARILY FALL UPON PROPERTY OUT OF THE STATE."  THE DELAWARE
RAILROAD TAX, 18 WALL.  206, 230-231 (1874). 

MR. JUSTICE BLACK, DISSENTING. 

IT IS ESTABLISHED LAW, AS THE COURT APPARENTLY RECOGNIZED IN ITS
OPINION, THAT AN INTERSTATE COMPANY CHALLENGING A STATE APPORTIONMENT
OF THE COMPANY'S PROPERTY TAXABLE IN THE STATE HAS THE HEAVY BURDEN OF
PROVING BY "CLEAR AND COGENT EVIDENCE" THAT THE APPORTIONMENT IS
GROSSLY AND FLAGRANTLY EXCESSIVE.  SEE, E.G., RAILWAY EXPRESS AGENCY V.
VIRGINIA, 358 U.S. 434, 444, AND CASES CITED.  I AGREE WITH THE SUPREME
COURT OF MISSOURI THAT APPELLANT RAILROAD FAILED TO MEET THAT BURDEN
AND WOULD THEREFORE AFFIRM ITS JUDGMENT.  SEE ITS OPINION AT 426 S.W.2D
362. 

IT IS TRUE THAT MOST OF THE CARS USED IN MISSOURI BY N&W WERE OWNED
BY THE WABASH RAILROAD AND THAT BEFORE TRANSFER TO N&W THEY HAD BEEN
ASSESSED AT WABASH RAILROAD AND THAT BEFORE TRANSFER TO N & W THEY HAD
BEEN ASSESSED AT DOES NOT PROVE THAT THE HIGHER ASSESSMENT WAS TOO
MUCH.  FOR, AS THE SUPREME COURT OF MISSOURI OINTED OUT, THIS COURT HAS
HELD THAT "A MERE INCREASE IN THE ASSESSMENT DOES NOT PROVE THAT THE
LAST ASSESSMENT IS WRONG.  SOMETHING MORE IS NECESSARY BEFORE IT CAN BE
ADJUDGED THAT THE ASSESSMENT IS ILLEGAL AND EXCESSIVE . . . "
PITTSBURGH, C., C. & ST. L.R. CO. V. BACKUS, 154 U.S. 421, 432.  THE
COURT BELOW HELD, AND THIS COURT AGREES, THAT IN PRICING THE VALUE OF
THE ROLLING STOCK THE COMMISSION WAS AUTHORIZED TO CONSIDER INTANGIBLE
VALUES, SUCH AS GOOD WILL AND VALUES ADDED BECAUSE OF THE ENHANCEMENT
TO THE PROPERTY IN MISSOURI BROUGHT ABOUT BY BEING MERGED INTO THE
ENTIRE N & W SYSTEM THIS CONSIDERATION OF ENHANCED VALUE IS NOT NEW
(SEE, E.G., PULLMAN CO. V. RICHARDSON, 261 U.S. 330, 338), AND, AS THE
COURT POINTS OUT, IT IS BECAUSE OF THIS INTANGIBLE FACTOR OF
ENHANCEMENT THAT STATES ARE ALLOWED WIDE DISCRETION IN DETERMINING THE
VALUE OF TANGIBLE PROPERTY LOCATED WITHIN THEIR BORDERS.  THUS, MILEAGE
FORMULAS, SUCH AS THE ONE USED HERE, HAVE GENERALLY BEEN UPHELD.  AS
THIS COURT SAID IN NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S.
362, "IN BASING ITS APPORTIONMENT ON MILEAGE, THE TENNESSEE COMMISSION
ADOPTED A FAMILIAR AND FREQUENTLY SANCTIONED FORMULA (CASES CITED)." 
310 U.S.,AT 365.  IT HAS NEVER BEEN CONTENDED THAT MILEAGE FORMULAS ARE
COMPLETELY ACCURATE, BUT BECAUSE STATES MUST CONSIDER SUCH INTANGIBLES
AS ENHANCEMENT VALUE, THESE FORMULAS ARE ALLOWED EXCEPT WHERE THE
TAXPAYER CAN SHOW, AS THE COURT PUTS IT, "THAT APPLICATION OF THE
MILEAGE METHOD IN ITS CASE HAS RESULTED IN GROSS OVERREACHING, BEYOND
THE VALUES REPRESENTED BY THE INTRASTATE ASSETS PURPORTED TO BE TAXED,
AS TO VIOLATE THE DUE PROCESS AND COMMERCE CLAUSES OF THE
CONSTITUTION."  I DO NOT BELIEVE THAT APPELLANTS HAVE MADE SUCH A
SHOWING HERE.  THE FATAL FLAW WITH THE APPELLANTS' CASE IS THAT THEY
HAVE NOT PROVED THAT THE TAX IS EXCESSIVE WHEN POSSIBLE ENHANCEMENT OF
VALUE DUE TO THE MERGER IS CONSIDERED.  THE COURT'S OPINION ADMITS AS
MUCH WHEN IT SAYS THAT "THE RECORD IS TOTALLY BARREN OF ANY EVIDENCE
RELATING TO ENHANCEMENT OR TO GOING-CONCERN OR INTANGIBLE VALUE, OR TO
ANY OTHER FACTOR . . . "  WHERE I DIFFER WITH THE COURT IS THAT I
BELIEVE THE BURDEN OF PROOF IS ON THE RAILROAD TO SHOW THAT THE TAX IS
EXCESSIVE UNDER ALL CONSIDERATIONS RATHER THAN ON THE COMMISSION TO
SHOW SUFFICIENT ENHANCEMENT OF VALUE TO JUSTIFY THE TAX. 

THIS COURT HAS RECOGNIZED BEFORE, AND INDEED THE MAJORITY PAYS LIP
SERVICE TO THE FACT TODAY, THAT IT IS IMPOSSIBLE FOR A STATE TO DEVELOP
TAX STATUTES WITH MATHEMATICAL PERFECTION.  INDEED, AS WAS STATED IN
INTERNATIONAL HARVESTER CO. V. EVATT, 329 U.S. 416:  "UNLESS A PALPABLY
DISPROPORTIONATE RESULT COMES FROM AN APPORTIONMENT, A RESULT WHICH
MAKES IT PATENT THAT THE TAX IS LE VIED UPON INTERSTATE COMMERCE RATHER
THAN UPON AN INTRASTATE PRIVILEGE, THIS COURT HAS NOT BEEN WILLING TO
NULLIFY HONEST STATE EFFORTS TO MAKE APPORTIONMENTS."  329 U.S.,AT 422
423.  AND THE "BURDEN IS ON THE TAXPAYER TO MAKE OPPRESSION MANIFEST BY
CLEAR AND COGENT EVIDENCE."  NORFOLK & WESTERN R. CO. V. NORTH
CAROLINA, 297 U.S. 682, 688.  SINCE APPELLANTS HERE DID NOT PROVE THAT
THE ENHANCED VALUE /1/  OF THE ROLLING STOCK WAS LESS THAN THE TAX
ASSESSMENT, OR THAT THE STATE WAS IMPOSING ON N & W TAXES THAT WERE
EXORBITANT ON THE FULL VALUE OF ALL ITS PROPERTY, CF. CAPITOL GREYHOUND
LINES V. BRICE, 339 U.S. 542, I WOULD AFFIRM THE DECISION OF THE
MISSOURI SUPREME COURT. 

/1/  THIS IS A FAMILIAR PRINCIPLE OF VALUATION IN SUCH TAX CASES. 
SEE FARGO V. HART, 193 U.S. 490, 499; GALVESTON, H & S.A.R. CO. V.
TEXAS, 210 U.S. 217, 225; UNITED STATES EXPRESS CO. V. MINNESOTA, 223
U.S. 335, 347; UNION TANK LINE CO. V. WRIGHT, 249 U.S. 275, 282. 

WILLIAM H. ALLEN ARUGED THE CAUSE FOR APPELLANTS.  WITH HIM ON THE
BRIEFS WERE CHARLES L. BACON, FREDERICK BEIHL, JAMES E. CARR, MELVIN J.
STROUSE AND CHRISTOPHER S. BOND. 

WILLIAM A. PETERSON, ASSISTANT ATTORNEY GENERAL OF MISSOURI, ARGUED
THE CAUSE FOR APPELLEES.  WITH HIM ON THE BRIEF WERE NORMAN H.
ANDERSON, ATTORNEY GENERAL, THOMAS J. DOWNEY, FIRST ASSISTANT ATTORNEY
GENERAL, AND WALTER W. NOWOTNY, JR., ASSISTANT ATTORNEY GENERAL. 
..END :
















LEE V. WASHINGTON, 390 U.S. 333 


       LEE, COMMISSIONER OF CORRECTIONS OF ALABAMA, ET AL. V.

           WASHINGTON ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF ALABAMA. 

        NO. 75.  ARGUED NOVEMBER 7, 1967.-- DECIDED MARCH 11,
1968. 


A THREE-JUDGE DISTRICT COURT DECLARED ALABAMA STATUTES REQURING
RACIAL SEGREGATION IN PRISONS UNCONSTITUTIONAL AND ESTABLISHED A
SCHEDULE FOR DESEGREATION.  THE STATE'S CHALLENGES OF THE JUDGMENT
BASED ON FED. RULE CIV. PROC. 23 (RELATING TO CLASS ACTIONS), THE
CLAIMED CONSTITUTIONALITY OF THE STATUTES, AND THE FAILURE TO ALLOW FOR
NECESSARY PRISON SECURITY AND DISCIPLINE, HELD TO BE WITHOUT MERIT. 

263 F.SUPP.  327, AFFIRMED. 

PER CURIAM. 

THIS APPEAL CHALLENGES A DECREE OF A THREE-JUDGE DISTRICT COURT
DELCARING THAT CERTAIN ALABAMA STATUTES VIOLATE THE FOURTEENTH
AMENDMENT TO THE EXTENT THAT THEY REQUIRE SEGREGATION OF THE RACES IN
PRISONS AND JAILS, AND ESTABLISHING A SCHEDULE FOR DESEGREGATION OF
THESE INSTITUTIONS.  THE STATE'S CONTENTIONS THAT RULE 23 OF THE
FEDERAL RULES OF CIVIL PROCEDURE, WHICH RELATES TO CLASS ACTIONS, WAS
VIOLATED IN THIS CASE AND THAT THE CHALLENGED STATUTES ARE NOT
UNCONSTITUTIONAL ARE WITHOUT MERIT.  THE REMAINING CONTENTION OF THE
STATE IS THAT THE SPECIFIC ORDERS DIRECTING DESEGREGATION OF PRISONS
AND JAILS MAKE NO ALLOWANCE FOR THE NECESSITIES OF PRISON SECURITY AND
DISCIPLINE, BUT WE DO NOT SO READ THE "ORDER, JUDGMENT AND DECREE" OF
THE DISTRICT COURT, WHICH WHEN READ AS A WHOLE WE FIND
UNEXCEPTIONABLE. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART,
CONCURRING. 

IN JOINING THE OPINION OF THE COURT, WE WISH TO MAKE EXPICIT
SOMETHING THAT IS LEFT TO BE GATHERED ONLY BY IMPLICATION FROM THE
COURT'S OPINION.  THIS IS THAT PRISON AUTHORITIES HAVE THE RIGHT,
ACTING IN GOOD FAITH AND IN PARTICULARIZED CIRCUMSTANCES, TO TAKE INTO
ACCOUNT RACIAL TENSIONS IN MAINTAINING SECURITY, DISCIPLINE, AND GOOD
ORDER IN PRISONS AND JAILS.  WE ARE UNWILLING TO ASSUME THAT STATE OR
LOCAL PRISON AUTHORITIES MIGHT MISTAKENLY REGARD SUCH AN EXPLICIT
PRONOUNCEMENT AS EVINCING ANY DILUTION OF THIS COURT'S FIRM COMMITMENT
TO THE FOURTEENTH AMENDMENT'S PROHIBITION OF RACIAL DISCRIMINATION. 

NICHOLAS S. HARE, SPECIAL ASSISTNT ATTORNEY GENERAL OF ALABAMA,
ARGUED THE CASE FOR APPELLANTS.  WTIH HIM ON THE BRIEFS WERE MACDONALD
GALLION, ATTORNEY GENERAL, GORDON MADISON, ASSISTANT ATTORNEY GENERAL,
AND J. M. BRECKENRIDGE. 

CHARLES MORGON, JR., ARGUED THE CAUSE FOR APPELLEES.  WITH HIM ON
THE BRIEF WERE ORZELL BILLINGSLEY, JR., AND MELVIN L. WULF. 
..END :












WALKER V. WAINRIGHT, 390 U.S. 335 


       WALKER V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

    ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

    NO. 786, MISC.  DECIDED MARCH 11, 1968. 


PETITIONER, UNDER LIFE SENTENCE FOR MURDER, WAS LATER SENTENCED TO
FIVE YEARS FOR ASSAULT, TO COMMENCE WHEN HE HAD COMPLETED THE MURDER
SENTENCE.  PETITIONER CHALLENGED THE MURDER CONVICTION ON
CONSTITUTIONAL GROUNDS, BUT THE DISTRICT COURT DENIED A WRIT OF HABEAS
CORPUS ON THE SOLE GROUND THAT, IN VIEW OF THE SENTENCE FOR ASSAULT, A
FAOVRABLE DECISION WOULD NOT RESULT IN THE PETITIONER'S IMMEDIATE
RELEASE FROM PRISON, AND THAT THE COURT WAS THEREFORE POWERLESS TO
CONSIDER HIS CLAIMS.  THE COURT OF APPEALS REJECTED HIS APPLICATION FOR
A CERTIFICATE OF PROBABLE CAUSE.  HELD:  WHATEVER ITS OTHER FUNCTIONS,
THE WRIT OF HABEAS CORPUS IS AVAILABLE TO TEST THE LEGALITY OF A
PRISONER'S CURRENT DETENTION, AND IT IS IMMATERIAL THAT ANOTHER PRISON
TERM MIGHT AWAIT HIM IF HE SHOULD ESTABLISH THE UNCONSTITUTIONALITY OF
HIS PRESENT IMPRISONMENT. 

CERTIORARI GRANTED; REVERSED AND REMANDED. 

PER CURIAM. 

ON SEPTEMBER 30, 1960, THE PETITIONER WAS CONVICTED OF FIRST DEGREE
MURDER AND WAS SENTENCED TO LIFE IMPRISONMENT.  ON MAY 25, 2965, HE WAS
FOUND GUILTY OF AGGRAVATED ASSAULT AND WAS SENTENCED TO FIVE YEARS IN
THE STATE PENITENTIARY, TO TO COMMENCE WHEN HE HAD COMPLETED SERVING
THE SENTENCE FOR MURDER. 

HAVING ATTEMPTED WITHOUT SUCCESS TO CHALLENGE HIS MURDER CONVICTION
ON FEDERRAL CONSTITUTIONAL GROUNDS IN THE STATE COURTS, THE PETITIONER
SOUGHT A WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA.  HE CONTENDED THAT HE HAD BEEN
DEPRIVED OF COUNSEL AT HIS PRELIMINARY HEARING, THAT A COERCED
CONFESSION HAD BEEN USED AGAINST HIM AT TRIAL, AND THAT HE HAD BEEN
DENIED THE RIGHT TO AN EFFECTIVE APPEAL. 

THE DISTRICT COURT OBSERVED THAT, EVEN IF THE PETITIONER'S
CONTENTIONS WERE ACCEPTED AND HIS MURDER CONVICTION REVERSED, HE WOULD
STILL FACE A FIVE-YEAR PRISON TERM FOR AGGRAVATED ASSAULT.  BECAUSE A
FAVORABLE DECISION ON THE MURDER CONVICTION WOULD NOT RESULT IN THE
PETITIONER'S IMMEDIATE RELEASE FROM PRISON, THE DISTRICT COURT THOUGHT
ITSELF POWERLESS TO CONSIDER THE MERITS OF HIS CLAIMS AND THEREFORE
DENIED HIS HABEAS CORPUS PETITION WITHOUT FURTHER CONSIDERATION.  IN
SHORT, THE DISTRICT COURT HELD THAT THE PETITIONER COULD NOT CHALLENGE
HIS LIFE SENTENCE UNTIL AFTER HE HAD SERVED IT.  THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT SUMMARILY REJECTED THE
PETITIONER'S APPLICATION FOR A CERTIFICATE OF PROBABLE CAUSE, AND HE
THEN SOUGHT REVIEW IN THIS COURT. 

IN REACHING ITS CONCLUSION, THE DISTRICT COURT RELIEF UPON MCNALLY
V. HILL, 293 U.S. 131, FOR THE BROAD PROPOSITION THAT THE "WRIT OF
HABEAS CORPUS MAY NOT BE USED AS A MEANS OF SECURING JUDICIAL DECISION
OF A QUESTION WHICH, EVEN IF DETERMINED IN THE PRISONER'S FAVOR, COULD
NOT RESULT IN HIS IMMEDIATE RELEASE."  THE MCNALLY DECISION, HOWEVER,
HELD ONLY THAT A PRISONER CANNOT EMPLOY FEDERAL HABEAS CORPUS TO ATTACK
A "SENTENCE WHICH (HE) HAS NOT BEGUN TO SERVE."  293 U.S.,AT 138.  HERE
THE DISTRICT COURT HAS TURNED THAT DOCTRINE INSIDE OUT BY TELLING THE
PETITIONER THAT HE CANNOT ATTACK THE LIFE SENTENCE HE HAS BEGUN TO
SERVE-- UNTIL AFTER HE HAS FINISHED SERVING IT.  WE NEED NOT CONSIDER
THE CONTINUED VITALITY OF THE MCNALLY HOLDING IN THIS CASE, FOR NEITHER
MCNALLY NOR ANYTHING ELSE IN OUR JURISPRUDENCE CAN SUPPORT THE
EXTRAORDINARY PREDICAMENT IN WHICH THE DISTRICT COURT HAS PLACED THIS
PETITIONER. 

WHATEVER ITS OTHER FUNCTIONS, THE GREAT AND CENTRAL OFFICE OF THE
WRIT OF HABEAS CORPUS IS TO TEST THE LEGALITY OF A PRISONER'S CURRENT
DETENTION.  THE PETITIONER IS NOW SERVING A LIFE SENTENCE IMPOSED
PURSUANT TO A CONVICTION FOR MURDER.  IF, AS HE CONTENDS, THAT
CONVICTION WAS OBTAINED IN VIOLATION OF THE CONSTITUTION, THEN HIS
CONFINEMENT IS UNLAWFUL.  IT IS IMMATERIAL THAT ANOTHER PRISON TERM
MIGHT STILL AWAIT HIM EVEN IF HE SHOULD SUCCESSFULLY ESTABLISH THE
UNCONSTITUTIONALITY OF HIS PRESENT IMPRISONMENT. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR CERTIORARI ARE GRANTED, THE JUDGMENT IS REVERSED, AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. 

              IT IS SO ORDERED. 
..END :










HETTLEMAN V. CHICAGO LAW INSTITUTE, 390 U.S. 338 


       HETTLEMAN ET AL. V. CHICAGO LAW INSTITUTE ET AL.

        APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

  NO. 961.  DECIDED MARCH 11, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

JULIUS L. SHERWIN FOR APPELLANTS. 

WILLIAM G. CLARK, ATTORNEY GENERAL OF ILLINOIS, JOHN J. O'TOOLE,
ASSISTANT ATTORNEY GENERAL, JOHN J. STAMOS, EDWARD J. HLADIS AND RONALD
BUTLER FOR APPELLEES. 
..END :








LOOKRETIS V. UNITED STATES, 390 U.S. 338 


       LOOKRETIS V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF OF APPEALS FOR THE SEVENTH CIRCUIT. 

        NO. 913.  DECIDED MARCH 11, 1968. 


CERTIORARI GRANTED; 385 F.2D 487, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED, AND THE CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF
CHAPMAN V. CALIFORNIA, 386 U.S. 18, AND MARCHETTI V. UNITED STATES,
ANTE, P. 39. 

MR. JUSTICE WHITE IS OF THE OPINION THAT THE PETITION FOR A WRIT OF
CERTIORARI SHOULD BE DENIED. 

MAURICE J. WALSH FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :




WISEMAN V. BARBY, 390 U.S. 339 


       WISEMAN, DIRECTOR OF INTERNAL REVENUE FOR THE DISTRICT OF

           OKLAHOMA V. BARBY ET UX.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

    COURT OF APPEALS FOR THE TENTH CIRCUIT. 

        NO. 871.  DECIDED MARCH 11, 1968. 


CERTIORARI GRANTED; 380 F.2D 121, REVERSED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  COMMISSIONER V. P.G. LAKE, INC., 356 U.S. 260. 

MR. JUSTICE STEWART AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
THE PETITION FOR A WRIT OF CERTIORARI SHOULD BE GRANTED AND THE CASE
SET DOWN FOR ORAL ARGUMENT. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT THE PETITION FOR A WRIT
OF CERTIORARI SHOULD BE DENIED. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL ROGOVIN,
HARRIS WEINSTEIN AND GRANT W. WIPRUD FOR PETITIONER. 

JOHN K. SPECK FOR RESPONDENTS. 
..END :




















FELTON V. CITY OF PENSACOLA, 390 U.S. 340 


       FELTON ET AL. V. CITY OF PENSACOLA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF

         APPEAL OF FLORIDA, FIRST DISTRICT. 

        NO. 934.  DECIDED MARCH 11, 1968. 


CERTIORARI GRANTED; 200 SO.2D 842, REVERSED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT, IS REVERSED. 
REDRUP V. NEW YORK, 386 U.S. 767. 

THE CHIEF JUSTICE WOULD GRANT THE PETITION AND REVERSE BECAUSE OF
THE FAILURE OF THE TRIAL COURT TO ADHERE TO THE STANDARD FOR JUDGING
OBSCENITY ANNOUNCED IN ROTH V. UNITED STATES, 354 U.S. 476. 

MR. JUDTICE HARLAN WOULD AFFIRM THE JUDGMENT OF THE STATE COURT UPON
THE PREMISES STATED IN HIS SEPARATE OPINION IN ROTH V. UNITED STATES,
354 U.S. 476, 496, AND HIS DISSENTING OPINION IN MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455. 

STANLEY FLEISHMAN, SAM ROSENWEIN AND HUGH W. GIBERT FOR
PETITIONERS. 

DAVE CATON FOR RESPONDENT. 
..END :




















FMC V. SVENSKA AMERIKA LINIEN, 390 U.S. 238 


       FEDERAL MARITIME COMMISSION ET AL. V. AKTIEBOLAGET SVENSKA

           AMERIKA LINIEN (SWEDISH AMERICAN LINE) ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT. 

        NO. 257.  ARGUEN JANUARY 25, 1968.-- DECIDED MARCH 6,
1968. 

           /1A/ 


THE AMERICAN SOCIEITY OF TRAVEL AGENTS FILED A COMPLAINT CHALLENGING
CERTAIN PRACTICES OF RESPONDENTS, MEMBERS OF TWO TRANSATLANTIC
PASSENGER STEAMSHIP CONFERENCES, INCLUDING (1) THE "TYING RULE" OF ONE
CONFERENCE PROHIBITING AGENTS BOOKING PASSAGE ON CONFERENCE SHIPS FROM
SELLING PASSAGE ON COMPETING, NONCONFERENCE LINES, AND (2) THE
"UNANIMITY RULE" OF THE OTHER CONFERENCE REQUIRING UNANIMOUS ACTION BY
CONFERENCE MEMBERS BEFORE MAXIMUM COMMISSION RATES PAYABLE TO TRAVEL
AGENTS MAY BE CHANGED.  THE FEDERAL MARITIME COMMISSION (FMC) AFTER
HEARINGS DISAPPROVED BOTH RULES UNDER SEC. 15 OF THE SHIPPING ACT,
1916, WHICH AUTHORIZES FMC DISAPPROVAL OF ANY AGREEMENT THAT IT FINDS
"UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN CARRIERS . . . , OR TO
OPERATE TO THE DETRIMENT OF THE COMMERCE OF THE UNITED STATES, OR TO BE
CONTRARY TO THE PUBLIC INTEREST, OR TO BE IN VIOLATION OF THIS
CHAPTER."  THE COURT OF APPEALS SET ASIDE THE ORDER AND REMANDED THE
CASE TO THE FMC FOR MORE DETAILED FINDINGS AND EXPLANATIONS.  ON REMAND
THE FMC AGAIN DISAPPROVED BOTH RULES AND THE COURT OF APPEALS AGAIN SET
ASIDE THE FMC ORDER.  THE FMC FOUND THAT THE UNANIMITY RULE BLOCKED THE
DESIRES OF A MAJORITY OF THE CONFERENCE FOR A COMMISSION RATE INCREASE;
PREVENTED CONFERENCE MEMBERS FROM COMPETING EFFECTIVELY WITH THE
AIRLINES (BY KEEPING THEM FROM INCREASING COMMISSIONS TO TRAVEL AGENTS
ON SHIP TRAVEL AND THUS ENCOURAGING THE AGENTS TO PROMOTE SHIP TRAVEL
OVER AIR TRAVEL); AND INJURED THE UNDECIDED TRAVELER WHO HAD NO
OPPORTUNITY TO DEAL WITH AN AGENT UNINFLUENCED BY HIS OWN ECONOMIC
INTEREST FAVORING THE AIRLINES.  THE FMC FOUND THAT THE TYING RULE
DENIED PASSENGERS THE ADVANTAGES OF BEING ABLE TO DEAL WITH A TRAVEL
AGENT WHO CAN SELL ANY MEANS OF TRAVEL; DENIED AGENTS THE ABILITY TO
SERVE PASSENGERS WISHING TO TRAVEL ON NONCONFERENCE LINES; AND DENIED
NONCONFERENCE LINES THE OPPORTUNITY TO REACH THE 80% OF TRANSATLANTIC
SHIP PASSENGERS WHO BOOK TRAVEL THROUGH CONFERENCE-APPOINTED AGENTS. 
IN REACHING THE CONCLUSION THAT BOTH RULES WERE DETRIMENTAL TO THE
COMMERCE OF THE UNITED STATES AND CONTRARY TO THE PUBLIC INTEREST AND
THAT THE TYING RULE WAS UNJUSTLY DISCRIMINATORY AS BETWEEN CARRIERS,
THE FMC RELIED ON THE FAILURE OF RESPONDENTS TO ESTABLISH LEGITIMATE
OBJECTIVES FOR RULES THAT CONTRAVENED ANTITRUST PRINCIPLES, A STANDARD
WHICH THE COURT OF APPEALS HELD WAS NOT AUTHORIZED BY THE TESTS FOR
ILLEGALITY SET FORTH IN THE STATUTE.  HELD: 

1.  THE SHIPPING ACT, 1916, CONFERS ONLY A LIMITED IMMUNITY FROM THE
ANTITRUST LAWS, AND THE ANTITRUST TEST FORMULATED BY THE FMC, BEING AN
APPROPRIATE REFINEMENT OF THE STATUTORY "PUBLIC INTEREST" STANDARD,
SHOULD HAVE BEEN UPHELD.  PP. 242-246. 

2.  THE FMC'S CONCLUSIONS SUPPORTING ITS DISAPPROVAL OF THE
UNANIMITY RULE, IN PART GROUNDED UPON INFERENCES PERMISSIBLE FROM THE
RECORD, WERE BASED UPON SUBSTANTIAL EVIDENCE AND SHOULD HAVE BEEN
UPHELD BY THE COURT OF APPEALS.  PP. 246-250. 

3.  THERE WAS NO SHOWING MADE THAT THE TYPING RULE WAS NECESSARY TO
SERVE THE STABILITY OF THE CONFERENCE, THAT CONFERENCE MEMBERS ACTUALLY
BORE SUBSTANTIAL PORTIONS OF THE EXPENSE OF SELECTING AND SUPERVISING
THE TRAVEL AGENTS, OR THAT THE RULE SERVED ANY OTHER LEGITIMATE
PURPOSE; AND THE FMC WAS THEREFORE WARRANTED IN CONCLUDING THAT THE
ABSOLUTE PROHIBITION AGAINST AGENTS DEALING WITH NONCONFERENCE LINES
WAS UNJUSTIFIED.  PP. 250-252. 

4.  SINCE THESE PROCEEDINGS WERE COMMENCED EIGHT YEARS AGO, HAVE
BEEN TWICE APPEALED TO REVIEWING COURTS, AND THE FMC'S FINDINGS ARE
SUPPORTED BY SUBSTANTIAL EVIDENCE, THE COURT OF APPEALS IS DIRECTED TO
AFFIRM THE FMC'S ORDER.  PP. 252-253. 

125 U.S.APP.D.C. 359, 372 F.2D 932, REVERSED AND REMANDED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THE SE CASES IS WHETHER THE FEDERAL
MARITIME COMMISSION PROPERLY DISAPPROVED TWO PROVISIONS OF SEVERAL
SHIPPING CONFERENCE AGREEMENTS.  ONE OF THE PROVISIONS UNDER ATTACK,
THE SO-CALLED TYING RULE, PROHIBITS TRAVEL AGENTS WHO BOOK PASSAGE ON
SHIPS PARTICIPATING IN THE CONFERENCES FROM SELLING PASSAGE ON
COMPETING, NONCONFERENCE LINES.  THE SECOND PROVISION, KNOWN AS THE
UNANIMITY RULE, REQUIRES UNANIMOUS ACTION BY CONFERENCE MEMBERS BEFORE
THE MAXIMUM RATE OF COMMISSIONS PAYABLE TO TRAVEL AGENTS MAY BE
CHANGED. 

THE COMMISSION'S AUTHORITY IN THIS AREA STEMS FROM THE SHIPPING ACT,
1916.  /1/  SECTION 15 OF THIS ACT, AS AMENDED, REQUIRES COMMON
CARRIERS BY WATER TO SUBMIT MOST OF THEIR COOPERATIVE AGREEMENTS TO THE
COMMISSION AND DIRECTS IT TO: 

"DISAPPROVE, CANCEL OR MODIFY ANY AGREEMENT, OR ANY MODIFICATION OR
CANCELLATION THEREOF, WHETHER OR NOT PREVIOUSLY APPROVED BY IT, THAT IT
FINDS TO BE UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN CARRIERS,
SHIPPERS, EXPORTERS, IMPORTERS, OR PORTS, OR BETWEEN EXPORTERS FROM THE
UNITED STATES AND THEIR FOREIGN COMPETITORS, OR TO OPERATE TO THE
DETRIMENT OF THE COMMERCE OF THE UNITED STATES, OR TO BE CONTRARY TO
THE PUBLIC INTEREST, OR TO BE IN VIOLATION OF THIS CHAPTER . . . " IN
1959 PROCEEDINGS WERE INITIATED BEFORE THE FEDERAL MARITIME BOARD,
PREDECESSOR AGENCY TO THE PRESENT FEDERAL MARITIME COMMISSION, ON THE
COMPLAINT OF THE AMERICAN SOCIETY OF TRAVEL AGENTS, PETITIONER IN NO.
258.  THE SOCIETY CHALLENGED A NUMBER OF THE PRACTICES OF TWO
CONFERENCES COMPOSED OF STEAMSHIP LINES THAT FURNISH PASSENGER SERVICE
ACROSS THE ATLANTIC.  AFTER EXTENSIVE INVESTIGATION AND HEARINGS BEFORE
A COMMISSION EXAMINER, THE COMMISSION DISAPPROVED BOTH THE TYING AND
UNANIMITY RULES AND ORDERED THEM ELIMINATED.  7 F.M.C. 737 (1964).  THE
COURT OF APPEALS, HOWEVER, SET ASIDE THE ORDER AND REMANDED THE CASE TO
THE COMMISSION FOR MORE DETAILED FINDINGS AND EXPLANATIONS.  122
U.S.APP.D.C. 59, 351 F.2D 756 (1965).  ON REMAND THE COMMISSION AGAIN
DISAPPROVED BOTH RULES.  THE TYING RULE WAS FOUND DETRIMENTAL TO THE
COMMERCE OF THE UNITED STATES AND CONTRARY TO THE PUBLIC INTEREST.  --
F.M.C. -- (1966).  ON APPEAL, THE COURT OF APPEALS AGAIN SET ASIDE THE
ORDER, HOLDING THAT THE COMMISSION'S NEW OPINION HAD NOT REMEDIED THE
DEFECTS NOTED IN THE PRIOR DECISION ON APPEAL, 125 U.S.APP.D.C. 359,
372 F.2D 932 (1967), AND WE GRANTED CERTIORARI, 389 U.S. 816 (1967). 
WE HOLD THAT THE COMMISSION'S ORDER WAS SUPPORTED IN ALL RESPECTS BY
ADEQUATE FINDINGS AND ANALYSIS.  WE THEREFORE REVERSE THE JUDGMENT OF
THE COURT OF APPEALS AND APPROVE THE ORDER OF THE COMMISSION. 

        I. 

AN UNDERSTANDING OF THE ISSUES IN THESE CASES WILL BE FACILITATED BY
A VERY BRIEF DISCUSSION OF THE PURPOSES OF THESE SHIPPING CONFERENCES
AND THE FEDERAL STATUTES ENACTED TO REGULATE THEM.  MAJOR AMERICAN AND
FOREIGN STEAMSHIP LINES WHICH COMPETE FOR TRAFFIC ALONG THE SAME ROUTES
HAVE LONG JOINED TOGETHER IN CONFERENCES TO FIX RATES AND OTHER
CHARGES, ALLOCATE TRAFFIC, AND IN OTHER WAYS MODERATE THE RIGORS OF
COMPETITION.  DESPITE TRADITIONAL HOSTILITY TO ANTICOMPETITIVE
ARRANGEMENTS OF THIS KIND, HOWEVER, CONGRESS FOUND AFTER EXTENSIVE
INVESTIGATION THAT THE COOPERATIVE ACTIVITY OF THESE CONFERENCES WAS TO
SOME EXTENT IN THE PUBLIC INTEREST.  THE HOUSE COMMITTEE THAT CONDUCTED
THE PRIMARY INQUIRY REPORTED THAT THE CONFERENCES PROMOTED: 

"REGULARITY AND FREQUENCY OF SERVICE, STABILITY AND UNIFORMITY OF
RATES, ECONOMY IN THE COST OF SERVICE, BETTER DISTRIBUTION OF SAILINGS,
MAINTENANCE OF AMERICAN AND EUROPEAN RATES TO FOREIGN MARKETS ON A
PARITY, AND EQUAL TREATMENT OF SHIPPERS THROUGH THE ELIMINATION OF
SECRET ARRANGEMENTS AND UNDERHANDED METHODS OF DISCRIMINATION."  H.R.
DOC. NO. 805, 63D CONG., 2D SESS. 416.  THESE ADVANTAGES, THE COMMITTEE
CONCLUDED, COULD PROBABLY NOT BE PRESERVED IN THE FACE OF UNRESTRICTED
COMPETITION, AND ACCORDINGLY IT RECOMMENDED THAT THE INDUSTRY BE
GRANTED SOME EXEMPTION FROM THE ANTITRUST LAWS.  ON THE OTHER HAND, THE
COMMITTEE STRESSED THAT AN UNQUALIFIED EXEMPTION WOULD BE UNDESIRABLE. 
THE CONFERENCES HAD ABUSED THEIR POWER IN THE PAST AND MIGHT DO SO IN
THE FUTURE UNLESS THEY WERE SUBJECTED TO SOME FORM OF EFFECTIVE
GOVERNMENTAL SUPERVISION.  IN RESPONSE TO THESE FINDINGS CONGRESS
ENACTED THE SHIPPING ACT, 1916.  THE STATUTE NOT ONLY OUTLAWED A NUMBER
OF SPECIFIC ABUSES BUT SET UP THE UNITED STATES SHIPPING BOARD, A
PREDECESSOR OF THE PRESENT FEDERAL MARITIME COMMISSION, WITH PERMANENT
AUTHORITY UNDER SEC. 15 OF THE ACT TO MODIFY OR DISAPPROVE CONFERENCE
AGREEMENTS.  THE ANTITRUST IMMUNITY CONFERRED WAS, AS THE HOUSE
COMMITTEE HAD RECOMMENDED, A LIMITED ONE-- ONLY AGREEMENTS RECEIVING
THE APPROVAL OF THE BOARD WERE EXEMPTED.  ORIGINALLY THE BOARD COULD
DISAPPROVE AN AGREEMENT ON ONLY THREE GROUNDS:  UNJUST DISCRIMINATION,
DETRIMENT TO COMMERCE, OR ILLEGALITY UNDER ONE OF THE SPECIFIC
PROVISIONS OF THE ACT.  IN 1959, HOWEVER, CONGRESS BEGAN AN EXTENSIVE
REVIEW OF REGULATION UNDER THE SHIPPING ACT, /2/  AND AMENDMENTS PASSED
IN 1961 IN RESPONSE TO THESE STUDIES /3/  INCLUDED A PROVISION GRANTING
CONSIDERABLY BROADER AUTHORITY BY PERMITTING DISAPPROVAL UNDER SEC. 15
OF ANY AGREEMENT FOUND TO BE "CONTRARY TO THE PUBLIC INTEREST."  THE
SCHEME OF REGULATION ADOPTED THUS PERMITS THE CONFERENCES TO CONTINUE
OPERATION BUT INSURES THAT THEIR IMMUNITY FROM THE ANTITRUST LAWS WILL
BE SUBJECT TO CAREFUL CONTROL. 

        II. 

A CRUCIAL ISSUE IN THESE CASES IS RESPONDENTS' CHALLENGE TO THE
COMMISSION'S RELIANCE ON ANTITRUST POLICY AS A BASIS FOR DISAPPROVING
THESE RULES.  SINCE THE CONTENTION IS EQUALLY RELEVANT TO ANALYSIS OF
THE TYING AND UNANIMITY RULES, WE CONSIDER IT AT THE OUTSET. 

THE COMMISSION HAS FORMULATED A PRINCIPLE THAT CONFERENCE RESTRAINTS
WHICH INTERFERE WITH THE POLICIES OF ANTITRUST LAWS WILL BE APPROVED
ONLY IF THE CONFERENCES CAN "BRING FORTH SUCH FACTS AS WOULD
DEMONSTRATE THAT THE . . . RULE WAS REQUIRED BY A SERIOUS
TRANSPORTATION NEED, NECESSARY TO SECURE IMPORTANT PUBLIC BENEFITS OR
IN FUTHERANCE OF A VALID REGULATORY PURPOSE OF THE SHIPPING ACT."  SEE
- F.M.C., AT -- .  IN THE PRESENT CASES, BUT FOR THE PARTIAL IMMUNITY
GRANTED BY THE ACT, BOTH THE TYING AND UNANIMITY RULES UNDOUBTEDLY
WOULD BE HELD ILLEGAL UNDER THE ANTITRUST LAWS, AND RESPONDENTS FAILED
TO SATISFY THE COMMISSION THAT THE RULES WERE NECESSARY TO FURTHER SOME
LEGITIMATE INTEREST.  THE COMMISSION FOUND THIS SUFFICIENT REASON TO
DISAPPROVE THE RULES, BUT THE COURT OF APPEALS DISAGREED.  EMPHASIZING
THAT "(THE STATUTORY LANGUAGE AUTHORIZES DISAPPROVAL ONLY WHEN THE
COMMISSION FINDS AS A FACT THAT THE AGREEMENT OPERATES IN ONE OF THE
FOUR WAYS SET OUT IN THE SECTION BY CONGRESS," THE COURT HELD, "WE DO
NOT READ THE STATUTE AS AUTHORIZING DISAPPROVAL OF AN AGREEMENT ON THE
GROUND THAT IT RUNS COUNTER TO ANTITRUST PRINCIPLES . . . "  122
U.S.APP.D.C.,AT 64; 351 F.2D,AT 761 (OPINION ON FIRST APPEAL). 

INSOFAR AS THIS HOLDING RESTS ON THE ABSENCE OF AN EXPLICIT
ANTITRUST TEST AMONG THE "FOUR WAYS SET OUT IN THE SECTION," WE THINK
THE COURT OF APPEALS WAS EXCESSIVELY FORMALISTIC IN ITS APPRAOCH TO THE
COMMISSION'S FINDINGS.  BY ITS VERY NATURE AN ILLEGAL RESTRAINT OF
TRADE IS IN SOME WAYS "CONTRARY TO THE PUBLIC INTEREST," AND THE
COMMISSION'S ANTITRUST STANDARD, INVOLVING AN ASSESSMENT OF THE
NECESSITY FOR THIS RESTRAINT IN TERMS OF LEGITIMATE COMMERCIAL
OBJECTIVES, SIMPLY GIVES UNDERSTANDABLE CONTENT TO THE BRAOD STATUTORY
CONCEPT OF "THE PUBLIC INTEREST."  CERTAINLY ANY RESERVATIONS THE COURT
OF APPEALS MAY HAVE HAD ON THIS POINT SHOULD HAVE BEEN DISPELLED BY THE
COMMISSION'S CAREFUL EXPLANATION ON REMAND OF THE CONNECTION BETWEEN
ITS ANTITRUST STANDARD AND THE PUBLIC INTEREST REQUIREMENT.  SEE --
F.M.C., AT -- .  AS LONG AS THE COMMISSION INDICATES WHICH OF THE
STATUTORY STANDARDS IS THE ULTIMATE AUTHORITY FOR ITS DISAPPROVAL, WE
CAN SEE NO OBJECTION TO THE COMMISSION'S CASTING ITS PRIMARY ANALYSIS
IN TERMS OF THE REQUIREMENTS OF ITS ANTITRUST TEST. 

RESPONDENTS ARGUE MORE BROADLY, HOWEVER, THAT THE ANTITRUST TEST IS
NOT A PERMISSIBLE ELABORATION OF THE STATUTORY STANDARDS.  THEY CONTEND
THAT THE WHOLE PURPOSE OF THE STATUTORY SCHEME WOULD BE DEFEATED IF
INCOMPATIBILITY WITH THE ANTITRUST LAWS CAN BE A SUFFICIENT REASON FOR
DENYING IMMUNITY FROM THESE LAWS.  CONGRESS, IT IS ARGUED, HAS ALREADY
DECIDED THAT THERE IS A JUSTIFICATION FOR INTRUSIONS ON OUR ANTITRUST
POLICY BY THE CONFERENCE SYSTEM, AND ACCORDINGLY THE COMMISSION CANNOT
REQUIRE FURTHER JUSTIFICATIONS FROM THE SHIPPING LINES BUT MUST ITSELF
DEMONSTRATE THE WAY IN WHICH THE STATUTORY REQUIREMENTS ARE VIOLATED. 

RESPONDENTS' ARGUMENTS, HOWEVER, ARE NOT EVEN SUPERFICIALLY
PERSUASIVE.  CONGRESS HAS, IT IS TRUE, DECIDED TO CONFER ANTITRUST
IMMUNITY UNLESS THE AGREEMENT IS FOUND TO VIOLATE CERTAIN STATUTORY
STANDARDS, BUT AS ALREADY INDICATED, ANTITRUST CONCEPTS ARE INTIMATELY
INVOLVED IN THE STANDARDS CONGRESS CHOSE.  THE COMMISSION'S APPROACH
DOES NOT MAKE THE PROMISE OF ANTITRUST IMMUNITY MEANINGLESS BECAUSE A
RESTRAINT THAT WOULD VIOLATE THE ANTITRUST LAWS WILL STILL BE APPROVED
WHENEVER A SUFFICIENT JUSTIFICATION FOR ITS EXISTS.  /4/  NOR DOES THE
COMMISSION'S TEST, BY REQUIRING THE CONFERENCE TO COME FORWARD WITH A
JUSTIFICATION FOR THE RESTRAINT, IMPROPERLY SHIFT THE BURDEN OF PROOF. 
THE COMMISSION MUST OF COURSE ADDUCE SUBSTANTIAL EVIDENCE TO SUPPORT A
FINDING UNDER ONE OF THE FOUR STANDARDS OF SEC. 15, BUT ONCE AN
ANTITRUST VIOLATION IS ESTABLISHED, THIS ALONE WILL NORMALLY CONSTITUTE
SUBSTANTIAL EVIDENCE THAT THE AGREEMENT IS "CONTRARY TO THE PUBLIC
INTEREST," UNLESS OTHER EVIDENCE IN THE RECORD FAIRLY DETRACTS FROM THE
WEIGHT OF THIS FACTOR.  IT IS NOT UNREASONABLE TO REQUIRE THAT A
CONFERENCE ADOPTING A PARTICULAR RULE TO GOVERN ITS OWN AFFAIRS, FOR
REASONS BEST KNOWN TO THE CONFERENCE ITSELF, MUST COME FORWARD AND
EXPLAIN TO THE COMMISSION WHAT THOSE REASONS ARE.  WE THEREFORE HOLD
THAT THE ANTITRUST TEST FORMULATED BY THE COMMISSION IS AN APPROPRIATE
REFINEMENT OF THE STATUTORY "PUBLIC INTEREST" STANDARD. 

III. 

WE TURN THEN TO THE COMMISSION'S ANALYSIS OF THE SPECIFIC IMPACT OF
THE UNANIMITY RULE.  THE RULE IS EMBODIED IN THE BASIC AGREEMENT OF THE
CARRIERS IN THE ATLANTIC PASSENGER STEAMSHIP CONFERENCE, AN ASSOCIATION
OF THE MAJOR LINES SERVING PASSENGER TRAFFIC BETWEEN EUROPE AND THE
UNITED STATES AND CANADA.  ARTICLE 6(A) OF THIS AGREEMENT PROVIDES THAT
THE RATE OF COMMISSION WHICH MEMBER LINES MAY PAY TO THEIR AGENTS MUST
BE ESTABLISHED BY UNANIMOUS AGREEMENT OF THE MEMBER LINES.  IN
ADDITION, ARTICLE 3(D) OF THE AGREEMENT PERMITS THE SUBCOMMITTEE WITH
PRIMARY RESPONSIBILITY FOR SUGGESTING COMMISSION RATES TO MAKE
RECOMMENDATIONS TO THE FULL CONFERENCE ONLY WHEN SUBCOMMITTEE MEMBERS
ARE IN UNANIMOUS ACCORD. 

THE COMMISSION NOTED THAT AT THE TIME OF ITS HEARINGS, THE
COMMISSION PAID BY CONFERENCE MEMBERS TO TRAVEL AGENTS WAS
SUBSTANTIALLY LOWER THAN THAT PAID BY THE AIRLINES.  BY THE TIME THE
COMMISSION WROTE ITS OPINION ON REMAND, THE CONFERENCE HAD RAISED ITS
COMMISSION TO THE LEVEL OFFERED BY THE AIRLINES, BUT THE EFFECTIVE
COMMISSION EARNED BY TRAVEL AGENTS REMAINED LOWER ON OCEAN TRAVEL
BECAUSE BOOKING PASSAGE BY SEA REQUIRES THREE TO FOUR TIMES AS MUCH OF
A TRAVEL AGENT'S TIME AS IS REQUIRED TO BOOK AIR TRAVEL.  THE
COMMISSION FOUND THAT THE UNANIMITY RULE WAS RESPONSIBLE FOR THE
EXISTING DISPARITY BETWEEN EFFECTIVE COMMISSIONS ON AIR AND SEA TRAVEL
AND FOR THE DELAYS IN CONFERENCE ACTION TO RECTIFY THE SITUATION.  ON
THREE SPECIFIC OCCASIONS, LACK OF UNANIMITY PREVENTED THE CONFERENCE
SUBCOMMITTEE FROM RECOMMENDING AN INCREASE, EVEN THOUGH A MAJORITY WAS
RECORDED AS BEING IN FAVOR OF THE PROPOSALS.  THE COMMISSION ALSO
REFERRED TO SEVERAL OTHER OCCASIONS ON WHICH THE CONFERENCE AND ITS
SUBCOMMITTEE FAILED TO TAKE ACTION.  BECAUSE MINUTES APPARENTLY WERE
NOT TAKEN FOR THESE MEETINGS, THE COMMISSION WAS UNABLE TO DETERMINE
WITH CERTAINTY WHETHER THE UNANIMITY RULE HAD FRUSTRATED THE WILL OF A
MAJORITY ON THESE OCCASIONS. 

THE COMMISSION THEN FOUND THAT AS A RESULT OF THE RELATIVELY
ADVANTAGIOUS COMMISSION ON SALES OF AIR TRAVEL, THERE WAS A DEFINITE
TENDENCY FOR TRAVEL AGENTS TO ENCOURAGE THEIR CUSTOMERS TO TRAVEL BY
AIR RATHER THAN BY SEA.  THIS SITUATION IN TURN NOT ONLY INJURED THE
MAJORITY OF THE SHIPPING LINES BY DIVERTING BUSINESS TO THE AIRLINES,
BUT ALSO INJURED THE UNDECIDED TRAVELER, WHO LOST THE OPPORTUNITY TO
DEAL WITH AN AGENT WHOSE RECOMMENDATIONS WOULD NOT BE INFLUENCED BY HIS
OWN ECONOMIC INTEREST.  THE COMMISSION ALSO FOUND THAT RESPONDENTS HAD
FAILED TO ESTABLISH ANY IMPORTANT PUBLIC INTEREST SERVED BY THE
UNANIMITY RULE.  UNDER THESE CIRCUMSTANCES THE COMMISSION CONCLUDED
THAT THE RULE WAS DETRIMENTAL TO COMMERCE BY FOSTERING A DECLINE IN
TRAVEL BY SEA, AND CONTRARY TO THE PUBLIC INTEREST IN THE MAINTENANCE
OF A SOUND AND INDEPENDENT MERCHANT MARINE.  THE COMMISSION ALSO FOUND
THE RULE CONTRARY TO THE PUBLIC INTEREST IN THAT IT INVADED THE
PRINCIPLES OF THE ANTITRUST LAWS MORE THAN WAS NECESSARY TO FURTHER ANY
VALID REGULATORY PURPOSE.     WE FIND THE COMMISSION'S ANALYSIS SOUND
AND THE EVIDENCE IN SUPPORT OF ITS CONCLUSIONS MORE THAN AMPLE. 
RESPONDENTS ATTACK THE INITIAL FINDINGS THAT THE UNANIMITY RULE HAS
BLOCKED THE DESIRES OF THE MAJORITY TO RAISE THE COMMISSION RATE, BUT
THE ARGUMENT REDUCES TO AN INSISTENCE THAT THE COMMISSION ESTABLISH
THIS POINT BY CONCLUSIVE PROOF.  IT IS TRUE THAT THERE IS NO SPECIFIC
EVIDENCE IN THE RECORD REVEALING THAT AT ANY OF THE CONFERENCE MEETINGS
WHERE NO ACTION WAS TAKEN, A MAJORITY FAVORED AN IMMEDIATE INCREASE. 
/5/  BUT THE MARITIME COMMISSION FACES NO SUCH RIGOROUS STANDARD OF
PROOF.  THE ISSUE TO BE DECIDED WAS A PURELY FACTUAL ONE, AND THE
COMMISSION WAS ENTITLED TO DRAW INFERENCES AS TO THE WISHES OF THE
MAJOIRTY FROM THE RECORD AS A WHOLE.  THE RECORD SHOWED BEYOND DOUBT
THAT IN SEVERAL INSTANCES A MAJORITY OF THE SUBCOMMITTEE FAVORED AN
INCREASE, AND FACED WITH THE LACK OF PROOF ONE WAY OR THE OTHER AS TO
THE WISHES OF THE MAJORITY OF THE FULL CONFERENCE, THE COMMISSION ACTED
REASONABLY IN ASSUMING THAT THE VIEWS OF THE SUBCOMMITTEE WERE NOT
DIAMETRICALLY OPPOSED TO THAT OF THE ENTIRE MEMBERSHIP.  IN ADDITION,
IT IS UNDISPUTED THAT THE RULE ON SEVERAL OCCASIONS OPERATED TO PREVENT
A MAJORITY OF THE SUBCOMMITTEE FROM PRESENTING ITS RECOMMENDATIONS TO
THE FULL CONFERENCE, AND THE COMMISSION COULD REASONABLY CONCLUDE THAT
THIS IMPACT ON THE SUBCOMMITTEE SERVED IN ITSELF TO DELAY OR PREVENT
ACTION BY THE FULL CONFERENCE.  ALTHOUGH ANY CONCLUSION AS TO THE
COMMISSION RATE THAT WOULD HAVE PREVAILED UNDER A DIFFERENT VOTING
PROCEDURE MUST TO SOME EXTENT REST ON "CONJECTURE," THE COURT BELOW
MISCONCEIVED ITS REVIEWING FUNCTION WHEN IT FOUND THIS A SUFFICIENT
BASIS FOR SETTING THE COMMISSION'S FINDING ASIDE.  HAVING CORRECTLY
NOTED THAT POSITIVE PROOF ON VARIOUS ASPECTS OF THE CASE WAS SIMPLY NOT
AVAILABLE ONE WAY OR THE OTHER, THE COMMISSION WAS FULLY ENTITLED TO
DRAW INFERENCES ON THESE POINTS FROM THE INCOMPLETE EVIDENCE THAT WAS
AVAILABLE.  "CONJECTURE" OF THIS KIND, WHEN BASED ON INFERENCES THAT
ARE REASONABLE IN LIGHT OF HUMAN EXPERIENCE GENERALLY OR WHEN BASED ON
THE COMMISSION'S SPECIAL FAMILIARITY WITH THE SHIPPING INDUSTRY, IS
FULLY WITHIN THE COMPETENCE OF THIS ADMINISTRATIVE AGENCY AND SHOULD BE
RESPECTED BY THE REVIEWING COURTS. 

RESPONDENTS' ATTACK ON THE FINDING THAT THE COMMISSION DISPARITY
AFFECTED THE RECOMMENDATIONS OF TRAVEL AGENTS SUFFERS FROM THIS SAME
MISCONCEPTION OF THE COMMISSION'S TASK.  IT IS TRUE THAT NO AGENT
TESTIFIED THAT HE HAD EVER PERSUADED A CUSTOMER TO TRAVEL BY AIR OVER
THE CUSTOMER'S PREFERENCE TO TRAVEL BY SEA.  AGENTS HEAVILY DEPENDENT
ON CONFERENCE BUSINESS COULD HARDLY BE EXPECTED TO MAKE SUCH AN
ADMISSION, BUT ONE AGENT DID GO SO FAR AS TO CONCEDE THAT UNDER SOME
CIRCUMSTANCES, THERE WAS A "DEFINITE TENDENCY" TO ENCOURAGE A CUSTOMER
TO CHOOSE AIR TRAVEL BECAUSE "IT IS EASIER TO SELL" AND "YOU MAKE MORE
MONEY."  THIS AMPLY SUPPORTS THE COMMISSION'S CONCLUSION. 

THE FINAL PROBLEM IS RESPONDENTS' CLAIM THAT THE RULE IS JUSTIFIED
BECAUSE NONE OF THE MEMBER LINES, THE AMERICAN-FLAG MINORITY IN
PARTICULAR, WISHES TO SURRENDER CONTROL OVER BASIC FINANCIAL DECISIONS
TO A MAJORITY OF ITS COMPETITORS.  THIS IS A BEWILDERING CONTENTION, TO
SAY THE LEAST.  THE RULE MAY ENABLE A SINGLE LINE TO PROTECT ITSELF
FROM A MAJORITY DECISION, BUT THE RULE IN NO WAY GUARANTEES THAT LINE
CONTROL OVER ITS OWN FINANCIAL DECISIONS.  LACK OF UNANIMITY UNDER THIS
PARTICULAR RULE DOES NOT LEAVE THE LINES FREE TO MAKE INDEPENDENT
DECISIONS, /6/  BUT SIMPLY FREEZES THE EXISTING SITUATION.  IN THIS WAY
CONTROL OVER THE BASIC FINANCIAL DECISIONS OF ALL LINES IS
"SURRENDERED" NOT TO THE MAJORITY BUT TO ANY SINGLE LINE THAT HAPPENS
TO OPPOSE CHANGE.  WE THEREFORE FIND THAT THE COMMISSION'S CONCLUSIONS
WITH RESPECT TO THE UNANIMITY RULE WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE AND SHOULD HAVE BEEN UPHELD BY THE COURT OF APPEALS. 

        IV. 

THE TYING RULE IS IMPOSED BY THE SECOND CONFERENCE INVOLVED IN THESE
CASES, THE TRANS-ATLANTIC PASSENGER STEAMSHIP CONFERENCE.  THIS
CONFERENCE IS COMPOSED OF THE MAJOR LINES PROVIDING PASSENGER SERVICE
BETWEEN AMERICA AND EUROPE, AND IT HAS SUBSTANTIALLY THE SAME
MEMBERSHIP AS THE CONFERENCE WHICH IS FORMALLY RESPONSIBLE FOR THE
UNANIMITY RULE ALREADY CONSIDERED.  THE TYING RULE PROHIBITS ALL TRAVEL
AGENTS AUTHORIZED TO BOOK PASSAGE FOR THE MEMBER LINES "FROM SELLING
PASSAGE TICKETS FOR ANY STEAMER NOT CONNECTED WITH THE FLEETS OF THE
MEMBER LINES."  THE RULE DOES NOT PROHIBIT THESE AGENTS FROM ARRANGING
AIR TRAVEL. 

AS THE COMMISSION CORRECTLY NOTED, THIS RULE SERIOUSLY INTERFERES
WITH THE PURPOSES OF THE ANTITRUST LAWS.  UNDER THE SHERMAN ACT, ANY
AGREEMENT BY A GROUP OF COMPETITORS TO BOYCOTT A PARTICULAR BUYER OR
GROUP OF BUYERS IS ILLEGAL PER SE.  UNITED STATES V. GENERAL MOTORS,
384 U.S. 127, 146-147 (1966); KLOR'S V. BROADWAY-HALE STORES, 359 U.S.
207 (1959).  AND THE CONFERENCE'S TYING RULE SPECIFICALLY INJURES THREE
DISTINCT SETS OF INTERESTS.  IT DENIES PASSENGERS THE ADVANTAGES OF
BEING ABLE TO DEAL WITH A ATRAVEL AGENT WHO CAN SELL ANY MEANS OF
TRAVEL.  IT DENIES AGETNS THE ABILITY TO SERVE PASSENGERS WHO WISH TO
TRAVEL ON NONCONFERENCE LINES.  MOST IMPORTANT, IT DENIES NONCONFERENCE
LINES THE OPPORTUNITY TO REACH EFFECTIVELY THE 80% OF ALL TRANSATLANTIC
STEAMSHIP PASSENGERS WHO BOOK THEIR TRAVEL THROUGH CONFERENCE-APPOINTED
AGENTS. 

GIVEN THESE EFFECTS OF THE RULE, WHICH ARE NOT SERIOUSLY DISPUTED,
IT WAS INCUMBENT UPON THE CONFERENCE TO ESTABLISH A JUSTIFICATION FOR
THE RULE IN TERMS OF SOME LEGITIMATE OBJECTIVE.  ONE OF THE POSSIBLE
PURPOSES OF THE RULE IS TO ELIMINATE THE COMPETITION OF THE
NONCONFERENCE LINES, BUT THIS IS NOT A PERMISSIBLE OBJECTIVE UNDER THE
SHIPPING ACT, SEE FEDERAL MARITIME BOARD V. ISBRANDTSEN CO., 356 U.S.
481, 491-493 (1958), AND RESPONDENTS QUITE PROPERLY DO NOT PRESS IT.
RESPONDENTS DO CONTEND, HOWEVER, THAT THE RULE IS JUSTIFIED AS A MEANS
OF PRESERVING THE STABILITY OF THE CONFERENCE.  BY CHOOSING AND
SUPERVISING RESPONSIBLE AGENTS WHO WILL BOOK STEAMSHIP PASSAGE ONLY FOR
ITS MEMBERS, THE CONFERENCE CREATES AN INCENTIVE FOR MEMBERS TO REMAIN
IN THE CONFERENCE AND FOR OTHER LINES TO JOIN.  THE COMMISSION FOUND NO
INDICATION, HOWEVER, THAT ELIMINATION OF THE RULE WOULD IN FACT
JEOPARDIZE THE STABILITY OF THE CONFERENCE.  ALTHOUGH NO EVIDENCE IN
THE RECORD ACTUALLY TENDS TO REFUTE RESPONDENTS' THEORY, /7/  IT IS
ALSO CLEAR THAT RESPONDENTS FAILED TO COME FORWARD WITH ANY EVIDENCE TO
SUPPORT THEIR CLAIM.  THE THEORY WAS THEREFORE INSUFFICIENT TO JUSTIFY
THE UNDENIABLE INJURY TO INTERESTS ORDINARILY PROTECTED BY THE
ANTITRUST LAWS. 

EQUALLY INSUBSTANTIAL IS THE SECOND JUSTIFICATION PRESENTED BY
RESPONDENTS, THAT THE CONFERENCE MEMBERS BEAR THE EXPENSE OF SELECTING
AND SUPERVISING QUALIFIED AGENTS AND THAT OTHER LINES WHO WISH TO TAKE
ADVANTAGE OF THESE EFFORTS SHOULD PAY THEIR FAIR SHARE BY JOINING THE
CONFERENCE.  THE COMMISSION FOUND THAT MOST OF THE EXPENSES INCURRED BY
THE CONFERENCE WERE IN FACT REIMBURSED BY THE AGENTS THEMSELVES THROUGH
ANNUAL FEES.  MANY OF THE PROMOTIONAL ACTIVITIES WERE PAID FOR BY
INDIVIDUAL LINES, AND INADDITION THESE ARRANGMENTS OFTEN REQUIRED
MATCHING CONTRIBUTIONS BY THE AGENTS.  IN LIGHT OF THESE FACTORS THE
COMMISSION PROPERLY CONCLUDED THAT ALTHOUGH THE CONFERENCE'S EFFORTS
MIGHT ENTITLE IT TO EXERCISE SOME CONTROL OVER THE AGENTS' ACTIVITIES,
THERE WAS NO JUSTIFICATION FOR COMPLETELY PROHIBITING THE AGENTS FROM
DEALING WITH NONCONFERENCE LINES. 

THESE CIRCUMSTANCES TAKEN TOGETHER PROVIDE SUBSTANTIAL SUPPORT FOR
ALL THREE OF THE COMMISSION'S FINDINGS-- THAT THE RULE IS DETRIMENTAL
TO THE COMMERCE OF THE UNITED STATES BY INJURING PASSENGERS, AGENTS,
AND NONCONFERENCE LINES, THAT THE RULE IS INJUSTLY DISCRIMINATORY AS
BETWEEN CONFERENCE AND NONCONFERENCE CARRIERS, AND THAT THE RULE IS
CONTRARY TO THE PUBLIC INTEREST BY UNNECESSARILY INVADING THE POLICIES
OF THE ANTITRUST LAWS. 

        V. 

FOR THE REASONS INDICATED THE COMMISSION PROPERLY DISAPPROVED THE
TYING AND UNANIMITY RULES INVOLVED IN THESE CASES.  THESE PROCEEDINGS
WERE COMMENCED MORE THAN EIGHT YEARS AGO, AND THIS IS THE SECOND TIME
THE CONTROVERSY HAS BEEN APPEALED TO THE REVIEWING COURTS.  ON THE
SECOND APPEAL TO THE COURT OF APPEALS, THAT COURT TOOK THE
EXTRAORDINARY COURSE OF SIMPLY REVERSING WITHOUT REMANDING TO THE
COMMISSION FOR FURTHER ACTION.  SINCE WE HAVE FOUND THAT THE
COMMISSION'S FINDINGS AND ORDER ARE SUPPORTED BY SUBSTANTIAL EVIDENCE,
AND SINCE THERE ARE NO OTHER MERITORIOUS CONTENTIONS RAISED BY THE
RESPONDENTS, WE THINK IT IS TIME FOR A FINAL DISPOSITION OF THE
PROCEEDINGS.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE
CASES ARE REMANDED WITH DIRECTIONS TO AFFIRM THE ORDER OF THE
COMMISSION. 

         IT IS SO ORDERED. 

/1A/  TOGETHER WITH NO. 258, AMERICAN SOCIETY OF TRAVEL AGENTS, INC.
V. AKTIEBOLAGET SVENSKA AMERIKA LINIEN (SWEDISH AMERICAN LINE) ET AL.,
ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  39 STAT. 728, AS AMENDED, 46 U.S.C. 801 ET SEQ. 

/2/  SEE HEARINGS BEFORE ANTITRUST SUBCOMMITTEE OF HOUSE COMMITTEE
ON THE JUDICIARY, ON MONOPOLY PROBLEMS IN REGULATED INDUSTRIES:  OCEAN
FREIGHT INDUSTRY, 86TH CONG., 1ST AND 2D SESS., SER.  14, PT. 1, VOLS,
I-V, AND PT. 2, VOLS.  I-II (1959-1960), 87TH CONG., 1ST SESS., SER. 
10, PT. 3, VOLS.  I-II (1961): HEARINGS BEFORE SPECIAL SUBCOMMITTEE ON
STEAMSHIP CONFERENCES OF HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES, STEAMSHIP CONFERENCE STUDY, 86TH CONG., 1ST SESS., PTS 1-3
(1959); H.R. REP. NO. 1419, 87TH CONG., 2D SESS. (1962). 

/3/  75 STAT. 762. 

/4/  FOR THIS REASON THE COMMISSION'S ANTITRUST STANDARD IS ENTIRELY
CONSISTENT WITH RESPONDENTS' EVIDENCE OF A CONGRESSIONAL RECOGNITION AT
THE TIME THE "CONTRARY TO THE PUBLIC INTEREST" TEST WAS ADDED IN 1961,
THAT "OUR TRADITIONAL ANTITRUST CONCEPTS CANNOT BE FULLY APPLIED TO
THIS ASPECT OF INTERNATIONAL COMMERCE."  S. REP. NO. 860, 87TH CONG.,
1ST SESS., 2 (1961).  AND FOR THE SAME REASON RESPONDENTS' RELIANCE ON
SEABORAD AIR LINE R. CO. V. UNITED STATES, 382 U.S. 154 (1965), AND
MINNEAPOLIS & ST. LOUIS R. CO. V. UNITED STATES, 361 U.S. 173 (1959),
IS MIS PLACED.  THE ANTITRUST STANDARD FORMULATED HERE IS IN FULL
ACCORD WITH THE KIND OF ACCOMMODATION BETWEEN ANTITRUST AND REGULATORY
OBJECTIVES APPROVED BY THIS COURT IN THOSE CASES.  INDEED WE HAVE
STRESSED THAT SUCH AN ACCOMMODATION DOES NOT AUTHORIZE THE AGENCY IN
QUESTION TO IGNORE THE ANTITRUST LAWS.  E.G., MCLEAN TRUCKING CO. V.
UNITED STATES, 321 U.S. 67, 79-80 (1944). 

/5/  RESPONDENTS CORRECTLY POINT OUT THAT THERE IS NO SUPPORT FOR
THE COMMISSION'S FINDING THAT THE MAJOIRTY OF THE MEMBERS WERE UNABLE
TO ACT AT THE MEETING OF FEBRUARY-MARCH 1956 BECAUSE OF A VETO
EXERCISED BY ONE LINE.  IT DOES APPEAR THAT AT THE MEETING OF MAY 3,
1960, A MAJORITY FAVORED AN INCREASE, BUT THEMEMORANDUM DISCLOSING THIS
DOES NOT INDICATE CLEARLY WHETHE THE MAJORITY PREFERRED TO PUT THE
INCREASE INTO EFFECT IMMEDIATELY, OR FAVORED THE ACTUAL DECISION TO
DEFER CONSIDERATION. 

/6/  COMPARE IATA TRAFFIC CONFERENCE RESOLUTION, 6 C.A.B. 639, 645
(1946).  THESE AIRLINE CONFERENCES LEAVE THE INDIVIDUAL MEMBERS FREE TO
INITIATE THEIR OWN RATES WHEN UNANIMOUS AGREEMENT CANNOT BE REACHED. 

/7/  THE COMMISSION'S REFERENCE TO THE FACT THT THE CARIBBEAN CRUISE
TRADE OPERATES WITHOUT A TYING RULE DOES NOT SEEM TO MEET RESPONDENTS'
CONTENTION.  SINCE THE CARIBBEAN CRUISE TRADE OPERATES WITHOUT A
CONFERENCE AT ALL, THE LACK OF ATYING RULE WOULD IN NO WAY INDICATE THE
EXTENT TO WHICH SUCH A RULE TENDS TO STRENGTHEN MEMBERSHIP IN
CONFERENCES. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT REACHED BY THE COURT, SUBSTANTIALLY FOR THE
REASONS STATED IN THE COURT'S OPINION.  HOWEVER, I CANNOT JOIN IN THE
COURT'S GENERAL STATEMENTS, ANTE, AT 244-246, CONCERNING THE
RELATIONSHI BETWEEN THE ANTITRUST LAWS AND THE "CONTRARY TO THE PUBLIC
INTEREST" STANDARD OF SEC. 15 OF THE SHIPPING ACT.  IT SEEMS PLAIN THAT
THE "CONTRARY TO THE PUBLIC INTEREST" TEST WAS INTNEDED TO COMPREHEND
FACTORS UNIQUE TO THE SHIPPING INDUSTRY AS WELL AS THOSE EMBODIED IN
THE ANTITRUST LAWS.  HENCE, I BELIEVE THAT UNDER THE ACT THE COMMISSION
MAY NOT PLACE UPON A SHIPPING CONFERENCE THE BURDEN OF JUSTIFYING AN
AGREEEMNT UNTIL THE COMMISSION HAS DETERMINED THAT IN LIGHT OF BOTH
SHIPPING AND ANTITRUST FACTORS THE AGREEMENT WOULD BE "CONTRARY TO THE
PUBLIC INTEREST" IN THE ABSENCE OF FURTHER EXPLANATION. 

IRWIN A. SEIBEL ARGUED THE CAUSE FOR PETITIONERS IN NO. 257.  WITH
HIM ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL TURNER, LOUIS F. CLAIBORNE, ROBERT N. KATZ AND GORDON M. SHAW. 

ROBERT J. SISK ARGUED THE CAUSE FOR PETITIONER IN NO. 258.  WITH HIM
ON THE BRIEFS WERE HAROLD S. BARRON AND GLEN A. WILKINSON. 

EDWARD R. NEAHER ARUGED THE CAUSE FOR RESPONDENTS IN BOTH CASES. 
WITH HIM ON THE BRIEF WERE CARL S. ROWE AND GERTRUDE S. ROSENTHAL. 
..END :
















NLRB V. UNITED INSURANCE CO., 390 U.S. 254 


       NATIONAL LABOR RELATIONS BOARD V. UNITED INSURANCE CO. OF

           AMERICA ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SEVENTH CIRCUIT. 

        NO. 178.  ARGUED JANUARY 23-24, 1968.-- DECIDED MARCH 6,

           1968.  /1A/ 


PETITIONER INSURANCE WORKERS UNION SEEKS TO REPRESENT RESPONDENT
INSURANCE COMPANY'S "DEBIT AGENTS."  THE COMPANY REFUSED TO RECOGNIZE
THE UNION, CLAIMING THAT THE AGENTS WERE IND EPENDENT CONTRACTORS
RATHER THAN EMPLOYEES.  THE NATIONAL LABOR RELATIONS BOARD (NLRB) IN
THE ENSUING UNFAIR LABOR PRACTICE PROCEEDING DETERMINED UNDER THE
COMMON LAW OF AGENCY THAT THE AGENTS WERE EMPLOYEES.  IT FOUND THAT THE
AGENTS DO NOT OPERATE THEIR OWN INDEPENDENT BUSINESSES, BUT PERFORM
FUNCTIONS THAT ARE AN ESSENTIAL PART OF THE COMPANY'S NORMAL
OPERATIONS; ARE TRAINED BY COMPANY SUPERVISORY PERSONNEL; DO BUSINESS
IN THE COMPANY'S NAME AND ORDINARILY SELL ONLY THE COMPANY'S POLICIES;
OPERATE UNDER TERMS AND CONDITIONS ESTABLISHED AND CHANGED UNILATERALLY
BY THE COMPANY; ACCOUNT FOR FUNDS UNDER STRICK COMPANY PROC EDURES;
RECEIVE THE BENEFIT OF THE COMPANY'S VACATION PLAN AND GROUP INSURANCE
AND PENSION FUND; AND HAVE A PERMANENT WORKING ARRANGEMENT UNDER WHICH
THEY MAY CONTINUE WITH THE COMPANY AS LONG AS THEIR PERFORMANCE IS
SATISFACTORY.  THE COURT OF APPEALS REFUSED TO ENFORCE THE NLRB'S
ORDER.  HELD:  THE NLRB'S DETERMINATION THAT THE AGENTS WERE COMPANY
EMPLOYEES AND NOT INDEPENDENT CONTRACTORS REPRESENTED A CHOICE BETWEEN
TWO FAIRLY CONFLICTING VIEWS, AND ITS ORDER SHOULD HAVE BEEN ENFORCED
BY THE COURT OF APPEALS.  PP. 256-260. 

371 F.2D 316, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN ITS INSURANCE OPERATIONS RESPONDENT UNITED INSURANCE COMPANY USES
"DEBIT AGENTS" WHOSE PRIMARY FUNCTIONS ARE COLLECTING PREMIUMS FROM
POLICYHOLDERS, PREVENTING THE LAPSING OF POLICIES, AND SELLING SUCH NEW
INSURANCE AS TIME ALLOWS.  THE INSURANCE WORKERS INTERNATIONAL UNION,
HAVING WON A CERTIFICATION ELECTION, SEEKS TO REPRESENT THE DEBIT
AGENTS, AND THE QUESTION BEFORE US IS WHETHER THESE AGENTS ARE
"EMPLOYEES" WHO ARE PROTECTED BY THE NATIONAL LABOR RELATIONS ACT OR
"INDEPENDENT CONTRACTORS" WHO ARE EXPRESSLY EXEMPTED FROM THE ACT.  /1/
RESPONDENT COMPANY REFUSED TO RECOGNIZE THE UNION, CLAIMING THAT ITS
DEBIT AGENTS WERE INDEPENDENT CONTRACTORS RATHER THAN EMPLOYEES.  IN
THE ENSUING UNFAIR LABOR PRACTICE PROCEEDING THE NATIONAL LABOR
RELATIONS BOARD HELD THAT THESE AGENTS WERE EMPLOYEES AND ORDERED THE
COMPANY TO BARGAIN COLLECTIVELY WITH THE UNION.  15 N.L.R.B. 38.  ON
APPEAL THE COURT OF APPEALS FOUND THAT THE DEBIT AGENTS WERE
INDEPENDENT CONTRACTORS AND REFUSED TO ENFORCE THE BOARD'S ORDER.  371
F.2D 316 (C.A. 7TH CIR.).  THE IMPORTANCE OF THE QUESTION IN THE
CONTEXT INVOLVED TO THE ADMINISTRATION OF THE NATIONAL LABOR RELATIONS
ACT PROMPTED US TO GRANT THE PETITIONS OF THE BOARD AND THE UNION FOR
CERTIORARI.  389 U.S. 815 

AT THE OUTSET THE CRITICAL ISSUE IS WHAT STANDARD OR STANDARDS
SHOULD BE APPLIED IN DIFFERENTIATING "EMPLOYEE" FROM "INDEPENDENT
CONTRACTOR" AS THOSE TERMS ARE USED IN THE ACT.  INITIALLY THIS COURT
HELD IN NLRB V. HEARST PUBLICATIONS, 322 U.S. 111, THAT "WHETHER . . .
THE TERMS 'EMPLOYEE' INCLUDES (PARTICULAR) WORKERS . . . MUST BE
ANSWERED PRIMARILY FROM THE HISTORY, TERMS AND PURPOSES OF THE
LEGISLATION."  322 U.S.,AT 124.  THUS THE STANDARD WAS ONE OF ECONOMIC
AND POLICY CONSIDERATIONS WITHIN THE LABOR FIELD.  CONGRESSIONAL
REACTION TO THIS CONSTRUCTION OF THE ACT WAS ADVERSE AND CONGRESS
PASSED AN AMENDMENT SPECIFICALLY EXCLUDING "ANY INDIVIDUAL HAVING THE
STATUS OF AN INDEPENDENT CONTRACTOR" FROM THE DEFINITION OF "EMPLOYEE"
CONTAINED IN SEC. 2(3) OF THE ACT.  THE OBVIOUS PURPOSE OF THIS
AMENDMENT WAS TO HAVE THE BOARD AND THE COURTS APPLY GENERAL AGENCY
PRINCIPLES IN DISTINGUISHING BETWEEN EMPLOYEES AND INDEPENDENT
CONTRACTORS UNDER THE ACT.  /2/  AND BOTH PETITIONERS AND RESPONDENTS
AGREE THAT THE PROPER STANDARD HERE IS THE LAW OF AGENCY.  THUS THERE
IS NO DOUBT THAT WE SHOULD APPLY THE COMMON-LAW AGENCY TEST HERE IN
DISTINGUISHING AN EMPLOYEE FROM AN INDEPENDENT CONTRACTOR. 

SINCE AGENCY PRINCIPLES ARE TO BE APPLIED, SOME FACTUAL BACKGROUND
SHOWING THE RELATIONSHIP BETWEEN THE DEBIT AGENTS AND RESPONDENT
COMPANY IS NECESSARY.  THESE BASIC FACTS ARE STATED IN THE BOARD'S
OPINION AND WILL BE VERY BRIEFLY SUMMARIZED HERE.  RESPONDENT HAS
DISTRICT OFFICES IN MOST STATES WHICH ARE RUN BY A MANAGER WHO USUALLY
HAS SEVERAL ASSISTANT MANAGERS UNDER HIM.  EACH ASSISTANT MANAGER HAS A
STAFF OF FOUR OR FIVE DEBIT AGENTS, AND THE TOTAL NUMBER OF SUCH AGENTS
CONNECTED WITH RESPONDENT COMPANY IS APPROXIMATELY 3,300.  NEW AGENTS
ARE HIRED BY DISTRICT MANAGERS, AFTER INTERVIEWS; THEY NEED HAVE NO
PRIOR EXPERIENCE AND ARE ASSIGNED TO A DISTRICT OFFICE UNDER THE
SUPERVISION OF AN ASSISTANT DISTRICT MANAGER.  ONCE HE IS HIRED, A
DEBIT AGENT IS ISSUED A DEBIT BOOK WHICH CONTAINS THE NAMES AND
ADDRESSES OF THE COMPANY'S EXISTING POLICYHOLDERS IN A RELATIVELY
CONCENTRATED GEOGRAPHIC AREA.  THIS BOOK IS COMPANY PROPERTY AND MUST
BE RETURNED TO THE COMPANY UPON TERMINATION OF THE AGENT'S SERVICE. 
THE MAIN JOB OF THE DEBIT AGENTS IS TO COLLECT PREMIUMS FROM THE
POLICYHOLDERS LISTED IN THIS BOOK.  THEY ALSO TRY TO PREVENT THE
LAPSING OF POLICIES AND SELL NEW INSURANCE WHEN TIME ALLOWS.  THE
COMPANY COMPENSATES THE AGENTS AS AGREED TO IN THE "AGENT'S COMMISSION
PLAN" UNDER WHICH THE AGENT RETAINS 20% OF HIS WEEKLY PREMIUM
COLLECTIONS ON INDUSTRIAL INSURANCE AND 10% FROM HOLDERS OF ORDINARY
LIFE, AND 50% OF THE FIRST YEAR'S PREMIUMS ON NEW ORDINARY LIFE
INSURANCE SOLD BY HIM.  THE COMPANY PLAN ALSO PROVIDES FOR BONUSES AND
OTHER FRINGE BENEFITS FOR THE DEBIT AGENTS, INCLUDING A VACATION-WITH
PAY PLAN AND PARTICIPATION IN A GROUP INSURANCE AND PROFIT-SHARING
PLAN.  AT THE BEGINNING OF AN AGENT'S SERVICE AN ASSISTANT DISTRICT
MANAGER ACCOMPANIES THE NEW AGENT ON HIS ROUNDS TO ACQUAINT HIM WITH
HIS CUSTOMERS AND SHOW HIM THE APPROVED COLLECTION AND SELLING
TECHNIQUES.  THE AGENT IS ALSO SUPPLIED WITH A COMPANY "RATE BOOK,"
WHICH THE AGENT IS EXPECTED TO FOLLOW, CONTAINING DETAILED INSTRUCTIONS
ON HOW TO PERFORM MANY OF HIS DUTIES.  AT THIS TIME THE AGENT USUALLY
ATTENDS STAFF MEETINGS FOR THE DISCUSSION OF THE LATEST COMPANY SALES
TECHNIQUES, COMPANY DIRECTIVES, ETC.  COMPLAINTS AGAINST AN AGENT ARE
INVESTIGATED BY THE MANAGER OR ASSISTANT MANAGER, AND, IF WELL FOUNDED,
THE MANAGER TALKS WITH THE AGENT TO "SET HIM STRAIGHT."  AGENTS WHO
HAVE POOR PRODUCTION RECORDS, OR WHO FAIL TO MAINTAIN THEIR ACCOUNTS
PROPERLY OR TO FOLLOW COMPANY RULES, ARE "CAUTIONED."  THE DISTRICT
MANAGER SUBMITS A WEEKLY REPORT TO THE HOME OFFICE, SPECIFYING, AMONG
OTHER THINGS, THE AGENTS WHOSE RECORDS ARE BELOW AVERAGE; THE AMOUNTS
OF THEIR DEBITS, THEIR COLLECTION PERCENTAGES, ARREARS, AND PRODUCTION;
AND WHAT ACTION THE DISTRICT MANAGER HAS TAKEN TO REMEDY THE PRODUCTION
"LETDOWN."  IF IMPROVEMENT DOES NOT FOLLOW, THE COMPANY ASKS SUCH
AGENTS TO "RESIGN," OR EXERCISES ITS RIGHTS UNDER THE "AGENT'S
COMMISSION PLAN" TO FIRE THEM "AT ANY TIME." 

THERE ARE INNUMERABLE SITUATIONS WHICH ARISE IN THE COMMON LAW WHERE
IT IS DIFFICULT TO SAY WHETHER A PARTICULAR INDIVIDUAL IS AN EMPLOYEE
OR AN INDEPENDENT CONTRACTOR, /3/  AND THESE CASES PRESENT SUCH A
SITUATION.  ON THE ONE HAND THESE DEBIT AGENTS PERFORM THEIR WORK
PRIMARILY AWAY FROM THE COMPANY'S OFFICES AND FIX THEIR OWN HOURS OF
WORK AND WORK DAYS; AND CLEARLY THEY ARE NOT AS OBVIOUSLY EMPLOYEES AS
ARE PRODUCTION WORKERS IN A FACTORY.  ON THE OTHER HAND, HOWEVER, THEY
DO NOT HAVE THE INDEPENDENT, NOR ARE THEY ALLOWED THE INITIATIVE AND
DECISION-MAKING AUTHORITY, NORMALLY ASSOCIATED WITH AN INDEPENDENT
CONTRACTOR.  IN SUCH A SITUATION AS THIS THERE IS NO SHORTHAND FORMULA
OR MAGIC PHRASE THAT CAN BE APPLIED TO FIND THE ANSWER, BUT ALL OF THE
INCIDENTS OF THE RELATIONSHIP MUST BE ASSESSED AND WEIGHED WITH NO ONE
FACTOR BEING DECISIVE.  WHAT IS IMPORTANT IS THAT THE TOTAL FACTUAL
CONTEXT IS ASSESSED IN LIGHT OF THE PERTINENT COMMON-LAW AGENCY
PRINCIPLES.  WHEN THIS IS DONE, THE DECISIVE FACTORS IN THESE CASES
BECOME THE FOLLOWING:  THE AGENTS DO NOT OPERATE THEIR OWN INDEPENDENT
BUSINESSES, BUT PERFORM FUNCTIONS THAT ARE AN ESSENTIAL PART OF THE
COMPANY'S NORMAL OPERATIONS; THEY NEED NOT HAVE ANY PRIOR TRAINING OR
EXPERIENCE, BUT ARE TRAINED BY COMPANY SUPERVISORY PERSONNEL; THEY DO
BUSINESS IN THE COMPANY'S NAME WITH CONSIDERABLE ASSISTANCE AND
GUIDANCE FROM THE COMPANY AND ITS MANAGERIAL PERSONNEL AND ORDINARILY
SELL ONLY THE COMPANY'S POLICIES; THE "AGENT'S COMMISSION PLAN" THAT
CONTAINS THE TERMS AND CONDITIONS UNDER WHICH THEY OPERATE IS
PROMULGATED AND CHANGED UNILATERALLY BY THE COMPANY; THE AGENTS ACCOUNT
TO THE COMPANY FOR THE FUNDS THEY COLLECT UNDER AN ELABORATE AND
REGULAR REPORTING PROCEDURE; THE AGENTS RECEIVE THE BENEFITS OF THE
COMPANY'S VACATION PLAN AND GROUP INSURANCE AND PENSION FUND; AND THE
AGENTS HAVE A PERMANENT WORKING ARRANGEMENT WITH THE COMPANY UNDER
WHICH THEY MAY CONTINUE AS LONG AS THEIR PERFORMANCE IS SATISFACTORY. 
PROBABLY THE BEST SUMMATION OF WHAT THESE FACTORS MEAN IN THE REALITY
OF THE ACTUAL WORKING RELATIONSHIP WAS GIVEN BY THE CHAIRMAN OF THE
BOARD OF RESPONDENT COMPANY IN A LETTER TO DEBIT AGENTS ABOUT THE TIME
THIS UNFAIR LABOR PRACTICE PROCEEDING AROSE: 

"IF ANY AGENT BELIEVES HE HAS THE POWER TO MAKE HIS OWN RULES AND
PLAN OF HANDLING THE COMPANY'S BUSINESS, THEN THAT AGENT SHOULD HAND IN
HIS RESIGNATION AT ONCE, AND IF WE LEARN THAT SAID AGENT IS NOT GOING
TO OPERATE IN ACCORDANCE WITH THE COMPANY'S PLAN, THEN THE COMPANY WILL
BE FORCED TO MAKE THE AGENTS FINAL (SIC). 

     "THE COMPANY IS GOING TO HAVE ITS BUSINESS MANAGED IN YOUR

  DISTRICT THE SAME AS ALL OTHER COMPANY DISTRICTS IN THE MANY

  STATES WHERE SAID OFFICES ARE LOCATED.  THE OTHER COMPANY

  OFFICIALS AND I HAVE MANAGED THE UNITED INSURANCE COMPANY OF

  AMERICA'S OPERATIONS FOR OVER 45 YEARS VERY SUCCESSFULLY, AND WE

  ARE GOING TO CONTINUE THE SAME SUCCESSFUL PLAN OF OPERATION, AND

  WE WILL NOT ALLOW ANYONE TO INTERFERE WITH US AND OUR SUCCESSFUL

  PLAN." 

THE BOARD EXAMINED ALL OF THESE FACTS AND FOUND THAT THEY SHOWED THE
DEBIT AGENTS TO BE EMPLOYEES.  THIS WAS NOT A PURELY FACTUAL FINDING BY
THE BOARD, BUT INVOLVED THE APPLICATION OF LAW TO FACTS-- WHAT DO THE
FACTS ESTABLISH UNDER THE COMMON LAW OF AGENCY:  EMPLOYEE OR
INDEPENDENT CONTRACTOR?  IT SHOULD ALSO BE POINTED OUT THAT SUCH A
DETERMINATION OF PURE AGENCY LAW INVOLVED NO SPECIAL ADMINISTRATIVE
EXPERTISE THAT A COURT DOES NOT POSSESS.  ON THE OTHER HAND, THE
BOARD'S DETERMINATION WAS A JUDGMENT MADE AFTER A HEARING WITH
WITNESSES AND ORAL ARGUMENT HAD BEEN HELD AND ON THE BASIS OF WRITTEN
BRIEFS.  SUCH A DETERMINATION SHOULD NOT BE SET ASIDE JUST BECAUSE A
COURT WOULD, AS AN ORIGINAL MATTER, DECIDE THE CASE THE OTHER WAY.  AS
WE SAID IN UNIVERSAL CAMERA CORP. V. N.L.R.B., 340 U.S. 474, "NOR DOES
IT (THE REQUIREMENT OF CANVASSING THE WHOLE RECORD) MEAN THAT EVEN AS
TO MATTERS NOT REQUIRING EXPERTISE A COURT MAY DISPLACE THE BOARD'S
CHOICE BETWEEN TWO FAIRLY CONFLICTING VIEWS, EVEN THOUGH THE COURT
WOULD JUSTIFIABLE HAVE MADE A DIFFERENT CHOICE HAD THE MATTER BEEN
BEFORE IT DE NOVO."  340 U.S.,AT 488.  HERE THE LEAST THAT CAN BE SAID
FOR THE BOARD'S DECISION IS THAT IT MADE A CHOICE BETWEEN TWO FAIRLY
CONFLICTING VIEWS, AND UNDER THESE CIRCUMSTANCES THE COURT OF APPEALS
SHOULD HAVE ENFORCED THE BOARD'S ORDER.  IT WAS ERROR TO REFUSE TO DO
SO.

              REVERSED. 

/1A/  TOGETHER WITH N. 179, INSURANCE WORKERS INTERNATIONAL UNION,
AFL-CIO V. NATIONAL LABOR RELATIONS BOARD ET AL., ALSO ON CERTIORARI TO
THE SAME COURT. 

/1/  THE NATIONAL LABOR RELATIONS ACT, AS AMENDED (61 STAT. 136, 73
STAT. 519, 29 U.S.C. 151 ET SEQ.), PROTECTS AN "EMPLOYEE" ONLY AND
SPECIFICALLY EXCLUDES "ANY INDIVIDUAL HAVING THE STATUS OF AN
INDEPENDENT CONTRACTOR."  (SEC. 2(3).) 

/2/  SEE 93 CONG.REC.  6441-6442, 2 LEG.HIST.OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, P. 1537.  SEE ALSO H.R. REP. NO. 245, 80TH CONG.,
1ST SESS., 18, 1 LEG.HIST., 1947, P. 309; H.R. CONF. REP. NO. 510, 80TH
CONG., 1ST SESS., 32-33, 1 LEG.HIS., 1947, PP. 536-537. 

/3/  SEE ANNOTATED CASES IN 55 A.L.R. 289 ET SEQ. AND 61 A.L.R. 218
ET SEQ. 

MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

DOMINICK L. MANOLI ARGUED THE CAUSE FOR THE NATIONAL LABOR RELATIONS
BOARD, PETITIONER IN NO. 178 AND RESPONDENT IN NO. 179.  WITH HIM ON
THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ARNOLD ORDMAN AND NORTON J.
COME. 

ISAAC N. GRONER ARGUED THE CAUSE AND FILED A BRIEF FOR THE INSURANCE
WORKERS INTERNATIONAL UNION, AFL-CIO, PETITIONER IN NO. 179 AND
RESPONDENT IN NO. 178. 

BERNARD G. SEGAL ARGUED THE CAUSE FOR THE UNITED INSURANCE CO. OF
AMERICA, RESPONDENT IN BOTH CASES.  WITH HIM ON THE BRIEF WERE SAMUEL
D. SLADE AND HERBERT G. KEENE, JR. 

SHAYLE P. FOX FILED A BRIEF FOR THE AMERICAN RETAIL FEDERATION, AS
AMICUS CURIAE, URGING AFFIRMANCE. 
..END :










VOLKSWAGENWERK V. FMC., 390 U.S. 261 


       VOLKSWAGENWERK AKTIENGESELLSCHAFT V. FEDERAL MARITIME

           COMMISSION ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT. 

        NO. 69.  ARGUED NOVEMBER 13, 1967.-- DECIDED MARCH 6,
1968. 


THE PACIFIC MARITIME ASSOCIATIN (PMA), REPRESENTING THE PACIFIC COAST
SHIPPING INDUSTRY EMPLOYERS, AND THE INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION REACHED AN AGREEMENT WHEREBY THE UNION CONSENTED
TO THE USE OF LABOR-SAVING DEVICES AND THE ELIMINATION OF CERTAIN
RESTRICTIVE WORK PRACTICES IN RETURN FOR PMA'S PROMISE TO CREATE A
$29,000,000 FUND TO MITIGATE THE EFFECT OF TECHNOLOGICAL UNEMPLOYMENT. 
THE AGREEMENT RESERVED TO PMA THE RIGHT TO DETERMINE HOW TO RAISE THE
FUND FROM ITS MEMBERS.  PMA APPROVED AN ASSESSMENT PER "REVENUE TON,"
BASED EITHER ON WEIGHT (2,000 POUNDS) OR MEASUREMENT (40 CUBIC FEET),
DETERMINED BY THE MANNER IN WHICH CARGO HAD CUSTOMARILY BEEN
MANIFESTED, WITH THE EXCEPTION OF AUTOMOBILES, WHICH WERE TO BE
DECLARED BY MEASUREMENT.  FOR PETITIONER'S AUTOMOBILES THE ASSESSMENT
CAME TO $2.35 PER VEHICLE, AN INCREASE IN UNLOADING COSTS OF 22.5%,
RATHER THAN 25 CENTS UNDER AN ASSESSMENT BY WEIGHT, OR ABOUT 2.4%
INCREASE IN COSTS, COMPARABLE TO THE AVERAGE FUND ASSESSMENT OF 2.2%
FOR ALL OTHER GENERAL CARGO.  PETITIONER OBTAINED A STAY OF THE ACTION
BROUGHT BY PMA TO COLLECT THE ASSESSMENT FROM THE TERMINAL COMPANY
UNLOADING PETITIONER'S AUTOMOBILES, TO PERMIT IT TO INVOKE THE PRIMARY
JURISDICTION OF THE FEDERAL MARITIME COMMISSION (FMC) TO DETERMINE
WHETHER THE ASSESSMENTS WERE CLAIMED UNDER AN AGREEMENT REQUIRED TO BE
FILED WITH AND APPROVED BY THE FMC UNDER SEC. 15 OF THE SHIPPING ACT,
1916, AND WHETHER THE ASSESSMENTS VIOLATED SECS. 16 AND 17 OF THAT
ACT.  THE FMC DISMISSED PETITIONER'S COMPLAINT, HOLDING THAT THE
AGREEMENT DID NOT "AFFECT COMPETITION" AND DID NOT COME WITHIN SEC. 15
IN THE ABSENCE OF AN ADDITIONAL AGREEMENT BY PMA TO PASS ON ALL OR A
PORTION OF THE ASSESSMENTS TO THE CARRIERS AND SHIPPERS SERVED BY THE
TERMINAL OPERATORS; THAT SEC. 16 WAS NOT VIOLATED SINCE PETITIONER HAD
NOT SHOWN ANY UNEQUAL TREATMENT BETWEEN ITS CARS AND OTHER AUTOMOBILES
OR CARGO COMPETITIVE THEREWITH; AND THAT THERE WAS NO VIOLATION OF SEC.
17 SINCE THE PETITIONER HAD RECEIVED "SUBSTANTIAL BENEFITS" IN RETURN
FOR THE ASSESSMENT.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE AGREEMNT WAS REQUIRED TO BE FILED WITH THE FMC UNDER SEC. 15
OF THE ACT.  PP. 268-278. 

  (A) THE FMC RECOGNIZED THAT THE ASSESSMENT FORMULA WAS A
"COOPERATIVE WORKING AGREEMENT" CLEARLY WITHIN THE PLAIN LANGUAGE OF
SEC. 15.  P. 271. 

  (B) IN HOLDING THAT THE AGREEMEND DID NOT "AFFECT COMPETITION:
THE FMC IGNORED ECONOMIC REALITIES WHICH REQUIRED MOST OF THE
ASSESSMENTS TO BE PASSED ON.  P. 273. 

  (C) THE FMC HAS NOT PREVIOUSLY LIMITED SEC. 15 TO HORIZONAL
AGREEMENTS AMONG COMPETITORS, BUT HAS APPLIED IT TO OTHER AGREEMENTS
WITHIN ITS LITERAL TERMS.  P. 274. 

  (D) THE LEGISLATIVE HISTORY OF THIS BROAD STATUTE INDICATES THAT
CONGRESS INTENDED TO SUBJECT TO THE SCRUTINY OF A SPECIALIZED AGENCY
THE MYRIAD OF RESTRICTIVE MARITIME AGREEMENTS.  PP. 275-276. 

  (E) WHILE THE FMC MAY DETERMINE THAT SOME DE MINIMIS OR ROUTINE
AGREEMENTS NEED NOT BE FILED UNDER SEC. 15, THIS AGREEMENT, LEVYING
$29,000,000, BINDING THE WHOLE PACIFIC COAST SHIPPING INDUSTRY, AND
RESULTING IN SUBSTANTIALLY INCREASED STEVEDORING AND TERMINAL CHARGES,
WAS NEITHER DE MINIMIS NOR ROUTINE.  PP. 276-277. 

  (F) THE ONLY AGREEMENT INVOLVED HERE IS THE ONE AMONG PMA MEMBERS
ALLOCATING THE IMPACT OF THE FUND LEVY; AND ONLY THE ASSESSMENT ON
AUTOMOBILES IS CHALLENGED.  P. 278. 

2.  WHEN THE AGREEMENT IS FILED, THE FMC MAY CONSIDER ANEW WHETHER
THE MERE ABSENCE OF A COMPETITIVE RELATIONSHIP SHOULD FORECLOSE INQUIRY
UNDER SEC. 16.  PP. 279-280. 

3.  THE PROPER INQUIRY UNDER SEC. 17 IS WHETHER THE CHARGE LEVIED IS
IS REASONABLYRELATED TO THE SERVICE RENDERED.  PP. 280-282. 

125 U.S.APP.D.C. 282, 371 F.2D 747, REVERSED AND REMANDED. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, A GERMAN MANUFACTURER OF AUTOMOBILES, IS ONE OF THE
LARGEST USERS OF THE PORTS ON THE WEST COAST OF THE UNITED STATES,
DELIVERING THROUGH THEM MORE THAN 40,000 VEHICLES EACH YEAR, THE
MAJOIRTY TRANSPORTED THERE BY VESSELS CHARTERED BY THE PETITIONER
RATHER THAN BY COMMON CARRIER.  THIS CASE GROWS OUT OF THE PETITIONER'S
CLAIM THAT CHARGES IMPOSED UPON THE UNLOADING OF ITS AUTOMOBILES AT
PACIFIC COAST PORTS ARE IN VIOLATION OF THE SHIPPING ACT, 1916, AS
AMENDED.  39 STAT. 728, 46 U.S.C. 801 ET SEQ. THE DISPUTE HAS A LONG
AND SOMEWHAT COMPLICATED HISTORY. 

THE PACIFIC MARITIME ASSOCIATION (THE ASSOCIATION) IS AN EMPLOYER
ORGANIZATION OF SOME 120 PRINCIPAL COMMON CARRIERS BY WATER,
STEVEDORING CONTRACTORS, AND MARINE TERMINAL OPERATORS, REPRESENTING
THE PACIFIC COAST SHIPPING INDUSTRY.  THE PRIMARY FUNCTION OF THE
ASSOCIATION IS TO NEGOTIATE AND ADMINISTER COLLECTIVE BARGAINING
CONTRACTS WITH UNIONS REPRSENTING ITS MEMBERS' EMPLOYEES, OF WHICH THE
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION (ILWU) IS ONE. 
IN LATE 1960 THE ASSOCIATION AND ILWU REACHED A MILESTONE AGREEMENT
WHICH, IT WAS HOPED, WOULD END A LONG AND TROUBLED HISTORY OF LABOR
DISCORD ON THE WEST COAST WATERFRONT.  /1/  THE ILWU AGREED TO THE
INTRODUCTION OF LABOR-SAVING DEVIDES AND THE ELIMINATION OF CERTAIN
RESTRICTIVE WORK PRACTICES.  IN RETURN, THE ASSOCIATION AGREED TO
CREATE OVER THE PERIOD FROM 1961 TO 1966 A "MECHANIZATION AND
MODERNIZATION FUND" OF $29,000,000 (THE MECH FUND) TO BE USED TO
MITIGATE THE IMPACT UPON EMPLOYEES OF TECHNOLOGICAL UNEMPLOYMENT.  /2/
THE AGREEMENT SPECIFICALLY RESERVED TO THE ASSOCIATION ALONE THE RIGHT
TO DETERMINE HOW TO RAISE THE MECH FUND FROM ITS MEMBERS, AT THE RATE
OF SOME $5,000,000 A YEAR. 

A COMMITTEE OF THE ASSOCIATION INVESTIGATED VARIOUS POSSIBLE
FORMULAS FOR COLLECTING THE FUND FROM THE STEVEDORING CONTRACTORS AND
TTERMINAL OPERATORS-- I.E., THOSE ASSOCIATION MEMBERS WHO WERE
EMPLOYERS OF WORKERS REPRESENTED BY THE ILWU.  A MAJORITY OF THE
COMMITTEE RECOMMENDED THAT THE MECH FUND ASSESSMENT BE BASED SOLELY ON
TONNAGE HANDLED, AND THIS RECOMMENDATION WAS ADOPTED BY THE ASSOCIATION
MEMBERSHIP.  /3/  UNDER THIS FORMULA, GENERAL CARGO WAS ASSESSED AT 27
1/2[ PER "REVENUE TON."  /4/  A REVENUE TONE IS BASED EITHER ON WEIGHT
(2,000 LBS. ONE TON) OR MEASUREMENT (40 CU. FT. ONE TON).  WHETHER
TONNAGE DECLARATIONS ON A PARTICULAR ITEM OF CARGO WERE TO BE BY WEIGHT
OR BY MEASUREMENT WAS TO DEPEND, WITH ONE EXCEPTION, UPON HOW THAT
CARGO HAD CUSTOMARILY BEEN MANIFESTED (AND REPORTED TO THE ASSOCIATION
FOR DUES PURPOSES) IN 1959.  THE ONE EXCEPTION WAS AUTOMOBILES, FOR
WHICH THERE HAD BEEN NO UNIFORM MANIFESTING CUSTOM.  /5/  THE
ASSOCIATION DECIDED THAT AUTOMOBILES WERE TO BE DECLARED BY MEASUREMENT
FOR MECH FUND PURPOSES, REGARDLESS OF HOW THEY WERE OR HAD BEEN
MANIFESTED. 

UNLIKE SHIPPERS BY COMMON CARRIER, THE PETITIONER MUST ARRANGE AND
PAY FOR THE UNLOADING OF ITS OWN CHARTERED VESSELS UPON THEIR ARRIVAL
IN PORT.  FOR THIS PURPOSE IT HAS SINCE 1954 CONTRACTED WITH MARINE
TERMINALS CORPORATION AND MARINE TERMINALS CORPORATION OF LOS ANGELES
(TERMINALS), WHICH ARE MEMBERS OF THE ASSOCIATION, FOR THE PERFORMANCE
OF STEVEDORING AND RELATED SERVICES IN UNLOADING VEHICLES FROM THE
PETITIONER'S CHARTERED SHIPS IN WEST COAST PORTS, AT A NEGOTIATED
PRICE.  PRIOR TO THE MECH FUND ASSESSMENT AGREEMENT, TERMINALS' CHARGE
TO THE PETITIONER FOR THESE UNLOADING SERVICES WAS $10.45 PER VEHICLE,
OF WHICH ABOUT A DOLLAR PRESENTED TERMINALS' PROFIT.  WHEN THE VEHICLES
WERE ASSESSED FOR THE MECH FUND BY MEASUREMENT, THE ASSESSMENT CAME TO
$2.35 PER VEHICLE-- REPRESENTING, IF PASSED ON TO THE PETITIONER, AN
INCREASE IN UNLOADING COSTS OF 22.5%.  /6/  IF THE VEHICLES HAD BEEN
ASSESSED BY WEIGHT (0.9 TONS) RATHER THAN BY MEASUREMENT (8.7 TONS),
/7/  THE ASSESSMENT WOULD HAVE BEEN 25[ PER VEHICLE-- AN INCREASE OF
ABOUT 2.4%, COMPARABLE TO THE AVERAGE MECH FUND ASSESSMENT OF 2.2% FOR
ALL OTHER GENERAL CARGO.  ASSESSMENT BY MEASUREMENT RATHER THAN BY
WEIGHT THUS RESULTED IN AN ASSESSMENT RATE FOR THE PETITIONER'S
AUTOMOBILES OF 10 TIMES THAT FOR OTHER WEST COAST CARGO-- ALTHOUGH
AUTOMOBILES HAD LESS TO GAIN THAN OTHER CARGO FROM THE MECH FUND
AGREEMENT.  /8/  THE PETITIONER AND TERMINALS BOTH PROTESTED THESE
SEEMING INEQUITIES TO A COMMITTEE OF THE ASSOCIATION SET UP TO HANDLE
SUCH CLAIMS, BUT WITHOUT SUCCESS.  /9/ 

THE PETITIONER REFUSED TO PAY ANY ADDITIONAL CHARGE RESULTING FROM
THE ASSOCIATION'S LEVY, AND TERMINALS, WHILE CONTINUING TO UNLOAD
VOLKSWAGEN AUTOMOBILES FOR THE PETITIONER, DID NOT PAY ITS RESULTING
ASSESSMENT TO THE ASSOCIATION.  THE ASSOCIATION SUED TERMINALS IN A
FEDERAL COURT IN CALIFORNIA FOR ITS FAILURE TO PAY THE MECH FUND
ASSESSMENTS; TERMINALS ADMITTED ALL THE ALLEGATIONS OF THE COMPLAINT
AND IMPLEADED THE PETITIONER AS A DEFENDANT.  THE PETITIONER THEN
OBTAINED A STAY OF THAT ACTION TO PERMIT IT TO INVOKE THE PRIMARY
JURISDICTION OF THE FEDERAL MARITIME COMMISSION, IN ORDER TO DETERMINE
THE FOLLOWING ISSUES: 

     "1.  WHETHER THE ASSESSMENTS CLAIMED FROM (THE PETITIONER) ARE

  BEING CLAIMED PURSUANT TO AN AGREEMENT OR UNDERSTANDING WHICH IS

  REQUIRED TO BE FILED WITH AND APPROVED BY THE FEDERAL MARITIME

  COMMISSION UNDER SECTION 15 OF THE SHIPPING ACT, 1916, AS

  AMENDED, 46 U.S.C. 814 (1961), BEFORE IT IS LAWFUL TO TAKE ANY

  ACTION THEREUNDER, WHICH AGREEMENT HAS NOT BEEN SO FILED AND

  APPROVED. 

     "2.  WHETHER THE ASSESSMENTS CLAIMED FROM (THE PETITIONER)

  RESULT IN SUBJECTING THE AUTOMOBILE CARGOES OF (THE PETITIONER)

  TO UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE IN VIOLATION

  OF SECTION 16 OF THE SHIPPING ACT, 1916, AS AMENDED, 46 U.S.C.

  815 (1961). 

     "3.  WHETHER THE ASSESSMENTS CLAIMED FROM (THE PETITIONER)

CONSTITUTE AN UNJUST AND UNREASONABLE PRACTICE IN VIOLATION OF

  SECTION 17 OF THE SHIPPING ACT, 1916, AS AMENDED, 46 U.S.C. 816

  (1961)." 

THE PETITIONER THEN BEGAN THE PRESENT PROCEEDINGS BY FILING A
COMPLAINT WITH THE COMMISSION RAISING THE ABOVE ISSUES.  THE PETITIONER
ALLEGED THAT THE ASSOCIATION WAS DOMINATED BY COMMON CARRIERS /10/
WHICH HAD AGREED UPON THE ASSESSMENT FORMULA IN ORDER TO SHIFT A
DISPROPORTIONATE SHARE OF THE MECH FUND ASSESSMENT ONTO THE PETITIONER,
WHICH DID NOT PATRONIZE THOSE COMMON CARRIERS.  /11/  THE COMMISSION,
AFTER A HEARING, UPHELD THE INITIAL DECISION OF ITS EXAMINER AND
DISMISSED THE COMPLAINT, WITH TWO DISSENTS.  /12/  THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED, /13/ AND WE GRANTED
CERTIORARI TO CONSIDER IMPORTANT QUESTIONS UNDER THE SHIPPING ACT. 
/14/

        I. 

THE PETITIONER'S PRIMARY CONTENTION-- SUPPORTED BY THE UNITED
STATES, A PARTY-RESPONDENT-- IS THAT IMPLEMENTATION OF THE
ASSOCIATION'S FORMULA FOR LEVYING THE MECH FUND ASSESSMENTS WAS
UNENFORCEABLE, BECAUSE THE AGREEMENT AMONG ASSOCIATION MEMBERS IMPOSING
THAT FORMULA WAS NOT FILED WITH THE COMMISSION IN ACCORD WITH SEC. 15
OF THE ACT.  THAT SECTION PROVIDES THAT THERE BE FILED WITH THE
COMMISSION "EVERY AGREEMENT" AMONG PERSONS SUBJECT TO THE ACT 

"FIXING OR REGULATING TRANSPORTATION RATES OR FARES; GIVING OR
RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER SPECIAL PRIVILEGES OR
ADVANTAGES; CONTROLLING, REGULATING, PREVENTING, OR DESTROYING
COMPETITION; POOLING OR APPORTIONING EARNINGS, LOSSES, OR TRAFFIC;
ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE NUMBER AND
CHARACTER OF SAILINGS BETWEEN PORTS; LIMITING OR REGULATING IN ANY WAY
THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO BE CARRIED;
OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL, OR
COOPERATIVE WORKING ARRANGEMENT . . . "  /15/ 

UNTIL SUBMITTED TO AND APPROVED BY THE COMMISSION, "IT SHALL BE
UNLAWFUL TO CARRY OUT IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, ANY
SUCH AGREEMENT . . . "  /16/  THE COMMISSION IS DIRECTED TO DISAPPROVE
ANY AGREEMENT 

"THAT IT FINDS TO BE UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN
CARRIERS, SHIPPERS, EXPORTERS, IMPORTERS, OR PORTS, OR BETWEEN
EXPORTERS FROM THE UNITED STATES AND THEIR FOREIGN COMPETITORS, OR TO
OPERATE TO THE DETRIMENT OF THE COMMERCE OF THE UNITED STATES, OR TO BE
CONTRARY TO THE PUBLIC INTEREST, OR TO BE IN VIOLATION OF (THE ACT) . .
. "  /17/ 

AN AGREEMENT FILED WITH AND APPROVED BY THE COMMISSION IS IMMUNIZED
FROM CHALLENGE UNDER THE ANTITRUST LAWS.  /18/ 

THE COMMISSION HELD THAT, ALTHOUGH THE MECH FUND ASSESSMENT FORMULA
WAS A "COOPERATIVE WORKING AGREEMENT" CLEARLY WITHIN THE PLAIN LANGUAGE
OF SEC. 15, IT NONETHELESS WAS NOT THE KIND OF AGREEMENT REQUIRED TO BE
FILED WITH THE COMMISSION UNDER THAT SECTION: 

     "ALTHOUGH THE LITERAL LANGUAGE OF SECTION 15 IS BROAD ENOUGH
TO

  ENCOMPASS ANY 'COOPERATIVE WORKING ARRANGEMENT' ENTERED INTO BY

PERSONS SUBJECT TO THE ACT, THE LEGISLATIVE HISTORY IS CLEAR THAT

  THE STATUTE WAS INTENDED BY CONGRESS TO APPLY ONLY TO THOSE

  AGREEMENTS INVOLVING PRACTICES WHICH AFFECT THAT COMPETITION

  WHICH IN THE ABSENCE OF THE AGREEMENT WOULD EXIST BETWEEN THE

  PARTIES WHEN DEALING WITH THE SHIPPING OR TRAVELING PUBLIC OR

  THEIR REPRESENTATIVES. 

     .          .          .          . 

     "IT IS NOT CONTESTED THAT THE MEMBERSHIP OF (THE ASSOCIATION)

  ENTERED INTO AN AGREEMENT AS TO THE MANNER OF ASSESSING ITS OWN

  MEMBERSHIP FOR THE COLLECTION OF THE 'MECH' FUND.  SUCH AN

  AGREEMENT, HOWEVER, DOES NOT FALL WITHIN THE CONFINES OF SECTION

  15 AS, STANDING BY ITSELF, IT HAS NO IMPACT UPON OUTSIDERS.  WHAT

  MUST BE DEMONSTRATED BEFORE A SECTION 15 AGREEMENT MAY BE SAID TO

  EXIST IS THAT THERE WAS AN ADDITIONAL AGREEMENT BY THE

  (ASSOCIATION) MEMBERSHIP TO PASS ON ALL OR A PORTION OF ITS

  ASSESSMENTS TO THE CARRIERS AND SHIPPERS SERVED BY THE TERMINAL

  OPERATORS."  9 F.M.C.,AT 82-83. 

THE COURT OF APPEALS AFFIRMED.  THAT COURT FELT ITSELF CONFINED BY
OUR DECISION IN CONSOLO V. FMC, 383 U.S. 607, TO DETERMINING SIMPLY
WHETHER COMMISSION'S RULING WAS SUPPORTED BY "SUBSTANTIAL EVIDENCE." 
WITH "DUE DEFERENCE TO THE EXPERTISE OF THE COMMISSION," IT CONCLUDED
"(ALBEIT WITH SOME HESITATION) THAT THERE IS SUBSTANTIAL EVIDENCE IN
THE RECORD CONSIDERED AS A WHOLE TO SUPPORT THE COMMISSION'S
DECISION."  124 U.S.APP.D.C.,AT 290, 371 F.2D, AT 755. 

THE ISSUE IN THIS CASE, HOWEVER, RELATES NOT TO THE SUFFICIENCY OF
EVIDENCE BUT TO THE CONSTRUCTION OF A STATUTE.  THE CONSTRUCTION PUT ON
A STATUTE BY THE AGENCY CHARGED WITH ADMINISTERING IT IS ENTITLED TO
DEFERENCE BY THE COURTS, AND ORDINARILY THAT CONSTRUCTION WILL BE
AFFIRMED IF IT HAS A "REASONABLE BASIS IN LAW."  NLRB V. HEARST
PUBLICATIONS, 322 U.S. 111, 131; UNEMPLOYMENT COMMISSION V. ARAGON, 329
U.S. 143, 153-154.  BUT THE COURTS ARE THE FINAL AUTHORITIES ON ISSUES
OF STATUTORY CONSTRUCTION, FTC V. COLGATE-PALMOLIVE CO., 380 U.S. 374,
385, AND "ARE NOT OBLIGED TO STAND ASIDE AND RUBBER-STAMP THEIR
AFFIRMANCE OF ADMINISTRATIVE DECISIONS THAT THEY DEEM INCONSISTENT WITH
A STATUTORY MANDATE OR THAT FRUSTRATE THE CONGRESSIONAL POLICY
UNDERLYING A STATUTE."  NLRB V. BROWN, 380 U.S. 278, 291.  "THE
DEFERNECE OWED TO AN EXPERT TRIBUNAL CANNOT BE ALLOWED TO SLIP INTO A
JUDICIAL INERTIA . . . "  AMERICAN SHIP BUILDING CO. V. NLRB, 380 U.S.
300, 318.  CF. FMB V. ISBRANDTSEN CO., 356 U.S. 481, 499-500 (WHERE
THIS COURT OVERTURNED THE COMMISSION'S CONSTRUCTION OF SEC. 14 OF THE
SHIPPING ACT). 

IN LIMITING SEC. 15 TO AGREEMENTS WHICH "AFFECT COMPETITION" AND IN
FINDING THAT THE ASSESSMENT AGREEMENT DID NOT SO "AFFECT COMPETITION,"
THE COMMISSION IN THIS CASE USED THAT PHRASE IN A HIGHLY ARTIFICIAL
SENSE-- BY REQURING "AN ADDITIONAL AGREEMENT BY THE (ASSOCIATION)
MEMBERSHIP TO PASS ON ALL OR A PORTION OF ITS ASSESSMENTS . . . "
THERE IS NO QUESTION THAT THE ASSESSMENT AGREEMENT NECESSARILY AFFECTED
THE COST STRUCTURES OF, AND THE CHARGES LEVIED BY, INDIVIDUAL
ASSOCIATION MEMBERS.  MOST, THOUGH NOT ALL, OF THE STEVEDORING
CONTRACTORS AND TERMINAL OPERATORS DID PASS THE ASSESSMENT ON.  THE
ECONOMIC REALITIES WERE SUCH THAT MANY OF THEM HAD NO CHOICE-- A FACT
OF WHICH THEY APPRISED THE ASSOCIATION AT THE TIME THE ASSESSMENT
ARRANGEMENT WAS BEING DEVISED.  /19/  IN THE CASE OF TERMINALS, THE
ASSESSMENT IT HAD TO PAY ON VOLKSWAGEN AUTOMOBILES WAS MORE THAN TWICE
ITS PROFIT MARGIN. 

THE COMMISSION THUS TOOK AN EXTREMELY NARROW VIEW OF A STATUTE THAT
USES EXPANSIVE LANGUAGE.  IN SUPPORT OF THAT VIEW, THE COMMISSION
ARGUED IN THIS COURT THAT A NARROW CONSTRUCTION OF SEC. 15 SHOULD BE
ADOPTED IN ORDER TO MINIMIZE THE NUMBER OF AGREEMENTS THAT MAY RECEIVE
ANTITRUST EXEMPTION.  HOWEVER, ANTITRUST EXEMPTION RESULTS, NOT WHEN AN
AGREEMENT IS SUBMITTED FOR FILING, BUT ONLY WHEN THE AGREEMENT IS
ACTUALLY APPROVED; AND IN DECIDING WHETHER TO APPROVE AN AGREEMENT, THE
COMMISSION IS REQUIRED UNDER SEC. 15 TO CONSIDER ANTITRUST
IMPLICATIONS.  /20/  FMC V. AKTIEBOLAGET SVENSKA AMERIKA LINIEN, ANTE,
P. 238; SEE ALSO ISBRANDTSEN CO. V. UNITED STATES, 93 U.S.APP.D.C. 293,
211 F.2D 51.  /21/     THE COMMISSION ITSELF HAS NOT HERETOFORE LIMITED
SEC. 15 TO HORIZONTAL AGREEMENTS AMONG COMPETITORS, BUT HAS APPLIED IT
TO OTHER TYPES OF AGREEMENTS COMING WITHIN ITS LITERAL TERMS.  SEE,
E.G., AGREEMENTS NOS. 8225 AND 8225-1, BETWEEN GREATER BATON ROUGE PORT
COMMISSION AND CARGILL, INC., 5 F.M.B. 648 (1959), AFFIRMED, 287 F.2D
86, AND AGREEMENT NO. T-4; TERMINAL LEASE AGREEMENT AT LONG BEACH,
CALIFORNIA, 8 F.M.C. 521 (1965).  APPLYING SEC. 15 TO LEASE
AGREEMENTS.  /22/  IN THE LATTER CASE, DECIDED ONLY FOUR MONTHS BEFORE
ITS DECISION IN THE CASE BEFORE US THE COMMISSION SAID:

"SECTION 15 DESCRIBES IN UNAMBIGUOUS LANGUAGE THOSE AGREEMENTS THAT
MUST BE FILED; IT DOES NOT SPEAK OF AGREEMENTS PER SE VIOLATIVE OF THE
SHERMAN ACT.  SINCE THE WORDING OF SECTION 15 IS CLEAR, WE NEED NOT
REFER TO THE LEGISLATIVE HISTORY; THERE IS SIMPLY NO AMBIGUITY TO
RESOLVE."  8 F.M.C.,AT 531.  TO LIMIT SEC. 15 TO AGREEMENTS THAT
"AFFECT COMPETITION," AS THE COMMISSION USED THAT PHRASE IN THE PRESENT
CASE, SIMPLY DOES NOT SQUARE WITH THE STRUCTURE OF THE STATUTE.  /23/ 

THE LEGISLATIVE HISTORY OFFERS NO SUPPORT FOR A DIFFERENT VIEW.  THE
GENESIS OF THE SHIPPING ACT WAS THE "ALEXANDER REPORT" IN 1914.  24 FMB
V. ISBRANDTSEN CO., 356 U.S. 481, 490.  WHILE IT IS TRUE THAT THE
ATTENTION OF THAT CONGRESSIONAL COMMITTEE WAS FOCUSED PRIMARILY UPON
THE PRACTICES THAT HAD CARTELIZED MUCH OF THE MARITIME INDUSTRY, IT IS
CLEAR THAT THE CONCERNS OF ITS INQUIRY WERE FAR MORE BROADLY RANGING. 
THE REPORT SUMMED UP THE TESTIMONY BEFORE THE COMMITTEE: 

"NEARLY ALL THE STEAMSHIP LINE REPRESENTATIVES . . . EXPRESSED
THEMSELVES AS NOT OPPOSED TO GOVERNMENT SUPERVISION . . . AND APPROVAL
OF ALL AGREEMENTS OR ARRANGEMENTS WHICH STEAMSHIP LINES MAY HAVE
ENTERED INTO WITH OTHER STEAMSHIP LINES, WITH SHIPPERS, OR WITH OTHER
CARRIERS AND TRANSPORTATION AGENCIES.  ON THE OTHER HAND, THE SHIPPERS
WHO APPEARED AS WITNESSES . . . WERE IN THE GREAT MAJORITY OF INSTANCES
FAVORABLE TO A COMPREHENSIVE SYSTEM OF GOVERNMENT SUPERVISION . . .
(AND) THE APPROVAL OF CONTRACTS, AGREEMENTS, AND ARRANGEMENTS, AND THE
GENERAL SUPERVISION OF ALL CONDITIONS OF WATER TRANSPORTATION WHICH
VITALLY AFFECT THE INTERESTS OF SHIPPERS."  ALEXANDER REPORT, AT 418. 
THE COMMITTEE RECOMMENDED, AMONG OTHER THINGS: 

     "THAT ALL CARRIERS ENGAGED IN THE FOREIGN TRADE OF THE UNITED

  STATES, PARTIES TO ANY AGREEMENTS, UNDERSTANDINGS, OR CONFERENCE

  ARRANGEMENTS HEREINAFTER REFERRED TO, BE REQUIRED TO FILE FOR

  APPROVAL . . . A COPY OF ALL WRITTEN AGREEMENTS (OR A COMPLETE

MEMORANDUM IF THE UNDERSTANDING OR AGREEMENT IS ORAL) ENTERED

  INTO (1) WITH ANY OTHER STEAMSHIP COMPANIES, FIRMS, OR LINES

  ENGAGED DIRECTLY OR INDIRECTLY IN THE AMERICAN TRADE, OR (2) WITH

  AMERICAN SHIPPERS, RAILROADS OR OTHER TRANSPORTATION AGENCIES." 

  ALEXANDER REPORT, AT 419-420. 

NOTHING IN THE LEGISLATIVE HISTORY SUGGESTS THAT CONGRESS, IN ENACTING
SEC. 15 OF THE ACT, MEANT TO DO LESS THAN FOLLOW THIS RECOMMENDATION OF
THE ALEXANDER REPORT AND SUBJECT TO THE SCRUTINY OF A SPECIALIZED
GOVERNMENT AGENCY THE MYRIAD OF RESTRICTIVE AGREEMENTS IN THE MARITIME
INDUSTRY.  /25/ 

THIS IS NOT TO SAY THAT THE COMMISSION IS WITHOUT POWER TO
DETERMINE, AFTER APPROPRIATE ADMINISTRATIVE PROCEEDINGS, THAT SOME
TYPES OR CLASSES OF AGREEMENTS COMING WITHIN THE LITERAL PROVISIONS OF
SEC. 15 ARE OF SUCH A DE MINIMIS OR ROUTINE CHARACTER AS NOT TO REQUIRE
FORMAL FILING.  SINCE THE COMMISSION'S DECISION IN THE PRESENT CASE,
CONGRESS HAD EXPLICITLY GIVEN IT SUCH AUTHORITY: 

   "THE FEDERAL MARITIME COMMISSION, UPON APPLICATION OR ON ITS

  OWN MOTION, MAY BE ORDER OR RULE EXEMPT FOR THE FUTURE ANY CLASS

  OF AGREEMENTS BETWEEN PERSONS SUBJECT TO THIS CHAPTER OR ANY

  SPECIFIED ACTIVITY OF SUCH PERSONS FROM ANY REQUIREMENT OF THIS

  CHAPTER, OR INTERCOASTAL SHIPPING ACT, 1933, WHERE IT FINDS THAT

  SUCH EXEMPTION WILL NOT SUBSTANTIALLY IMPAIR EFFECTIVE REGULATION

  BY THE FEDERAL MARITIME COMMISSION, BE UNJUSTLY DISCRIMINATORY,

  OR BE DETRIMENTAL TO COMMERCE. 

     "THE COMMISSION MAY ATTACH CONDITIONS TO ANY SUCH EXEMPTIONS

  AND MAY, BY ORDER, REVOKE ANY SUCH EXEMPTION."  /26/  46 U.S.C.

  833A (1964 ED., SUPP. II). 

BUT THE AGREEMENT WITH WHICH WE DEAL HERE-- LEVYING $29,000,000 OVER
FIVE YEARS, BINDING ALL PRINCIPAL CARRIERS, STEVEDORING CONTRACTORS,
AND TERMINAL OPERATORS ON THE PACIFIC COAST, AND NECESSARILY RESULTING
IN SUBSTANTIALLY INCREASED STEVEDORING AND TERMINAL CHARGES-- WAS
NEITHER DE MINIMIS NOR ROUTINE.  WE HOLD THAT THIS AGREEMENT WAS
REQUIRED TO BE FILED UNDER SEC. 15 OF THE ACT. 

IT IS TO BE EMPHASIZED THAT THE ONLY AGREEMENT INVOLVED IN THIS CASE
IS THE ONE AMONG MEMBERS OF THE ASSOCIATION ALLOCATING THE IMPACT OF
THE MECH FUND LEVY.  WE ARE NOT CONCERNED HERE WITH THE AGREEMENT
CREATING THE ASSOCIATION OR WITH THE COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE ASSOCIATION AND THE ILWU.  NO CLAIM HAS BEEN MADE IN THIS
CASE THAT EITHER OF THOSE AGREEMENTS WAS SUBJECT TO THE FILING
REQUIREMENTS OF SEC. 15.  THOSE AGREEMENTS, REFLECTING THE NATIONAL
LABOR POLICY OF FREE COLLECTIVE BARGAINING BY REPRESENTATIVES OF THE
PARTIES' OWN UNFETTERED CHOICE, FALL IN AN AREA OF CONCERN TO THE
NATIONAL LABOR RELATIONS BOARD, AND NOTHING WE HAVE SAID IN THIS
OPINION IS TO BE UNDERSTOOD AS QUESTIONING THEIR CONTINUING VALIDITY. 
BUT IN NEGOTIATING WITH THE ILWU, THE ASSOCIATION INSISTED THAT ITS
MEMBERS WERE TO HAVE THE EXCLUSIVE RIGHT TO DETERMINE HOW THE MECH FUND
WAS TO BE ASSESSED, AND A CLAUSE TO THAT EFFECT WAS INCLUDED IN THE
COLLECTIVE BARGAINING AGREEMENT.  THAT ASSESSMENT ARRANGEMENT,
AFFECTING ONLY RELATIONSHIPS AMONG ASSOCIATION MEMBERS AND THEIR
CUSTOMERS, IS ALL THAT IS BEFORE US IN THIS CASE.  MOREOVER, SO FAR AS
THE RECORD SHOWS, ONLY THE ASSESSMENT ON AUTOMOBILES IS NOW CHALLENGED,
AND THERE IS NO REASON TO SUPPOSE THAT THE COMMISSION WILL NOT CONSIDER
EXPEDITIOUS APPROVAL OF SO MUCH OF THE AGREEMENT AS IS NOT IN DISPUTE. 

        II. 

THE PETITIONER ALSO ATTACKED THE ASSOCIATION'S ASSESSMENT OF ITS
AUTOMOBILES UNDER SEC. 16 AND SEC. 17 OF THE SHIPPING ACT.  SECTION 16
MAKES IT UNLAWFUL "TO SUBJECT ANY PARTICULAR PERSON, LOCALITY, OR
DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE PREJUDICE OR
DISADVANTAGE,"  /27/  AND SEC. 17 FORBIDS ANY "UNJUST OR UNREASONABLE"
REGULATION OR PRACTICE "RELATING TO OR CONNECTED WITH THE RECEIVING,
HANDLING, STORING, OR DELIVERING OF PROPERTY.?  /28/  THE COMMISSION
RULED THAT NEITHER OF THESE SECTIONS HAD BEEN VIOLATED, AND THE COURT
OF APPEALS AFFIRMED. 

IF THE AGREEMENT IS NOW FILED UNDER SEC. 15, THE COMMISSION WILL BE
CALLED UPON AGAIN TO CONSIDER THE EFFECT OF SECS. 16 AND 17, SINCE AN
AGREEMENT THAT VIOLATES A SPECIFIC PROVISION OF THE ACT MUST BE
DISAPPROVED.  /29/  ACCORDINGLY, IT IS NOT INAPPROPRIATE, WITHOUT NOW
PASSING UPONTHE ULTIMATE MERITS OF THE SEC. 16 AND 17 ISSUES, TO GIVE
BRIEF CONSIDERATIONTO THE COMMISSION'S HANDLING OF THOSE ISSUES UPON
THE PRESENT RECORD. 

THE COMMISSION RULED THAT THE PETITIONER HAD FAILED TO DEMONSTRATE
ANY "UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE" UNDER SEC. 16
SOLELY BECAUSE IT HAD NOT SHOWN ANY UNEQUAL TREATMENT AS BETWEEN ITS
AUTOMOBILES AND OTHER AUTOMOBILES OR CARGO COMPETITIVE WITH
AUTOMOBILES.  IN SO RULING, THE COMMISSION APPLIED THE "COMPETITIVE
RELATIONSHIP" DOCTRINE WHICH IT HAS DEVELOPED IN CASES CONCERNING RATES
FOR CARRIAGE OF GOODS BY SEA.  /30/  BUT THE COMMISSION, IN CASES NOT
INVOLVING FREIGHT RATES AND THE PARTICULARIZED ECONOMICS THAT RESULT
FROM A VESSEL'S FINITE CARGO CAPACITY, /31/  HAS OFTEN FOUND SEC. 16
VIOLATIONS EVEN IN THE ABSENCE OF A "COMPETITIVE RELATIONSHIP."  SEE,
E.G., PRACTICES, ETC., OF SAN FRANCISCO BAY AREA TERMINALS, 2 U.S.M.C.
588 (1941) AND 709 (1944), AND STORAGE PRACTICES AT LONGVIEW,
WASHINGTON, 6 F.M.B. 178 (1960), INVOLVING STORAGE CHARGES; AND NEW
YORK FOREIGN FREIGHT FORWARDERS AND BROKERS ASSN. V. FMC, 337 F.2D 289,
INVOLVING FREIGHT FORWARDERS' FEES.  IN A PROCEEDING SUBSEQUENT TO ITS
DECISION IN THE PRESENT CASE, THE COMMISSION EXPLICITLY DISPENSED
WITHTHE COMPETITIVE RELATIONSHIP REQUIREMENT WITH RESPECT TO PORT "FREE
TIME."  INVESTIGATION OF FREE TIME PRACTICES-- PORT OF SAN DIEGO, 9
F.M.C. 525 (1966); CF. CALIFORNIA V. UNITED STATES, 320 U.S. 577.  SEE
ALSO INVESTIGATION ON HOUSEHOLD GOODS, NORTH ATLANTIC MEDITERRANEAN
FREIGHT CONFERENCE, F.M.C. DOCKET NO. 66-49 (JUNE 30, 1967).  WHEN THE
AGREEMENT IN THE PRESENT CASE IS FILED, THE COMMISSION MAY CONSIDER
ANEW WHETHER THE MERE ABSENCE OF A COMPETITIVE RELATIONSHIP SHOULD
FORECLOSE FURTHER SEC. 16 INQUIRY.  /32/ 

WITH RESPECT TO SEC. 17, THE COMMISSION FOUND THAT THE ASSESSMENT
UPON THE PETITIONER'S AUTOMOBILES WAS NOT "UNREASONABLE," BECAUSE THE
PETITIONER HAD RECEIVED ,SUBSTANTIAL BENEFITS" IN RETURN FOR THE
ASSESSMENT, AND THERE WAS NO SHOWING OF A DELIBERATE INTENT TO IMPOSE
AN UNFAIR BURDEN UPON THE PETITIONER.  THIS, WE THINK, REFLECTS FAR TOO
NARROW A VIEU OF SEC. 17.  IT MAY BE THAT A RELATIVELY SMALL CHARGE
IMPOSED UNIFORMLY FOR THE BENEFIT OF AN ENTIRE GROUP CAN BE REASONABLE
UNDER SEC. 17, EVEN THOUGH NOT ALL MEMBERS OF THE GROUP RECEIVE EQUAL
BENEFITS.  SEE EVANS COOPERAGE CO. V. BOARD OF COMMISSIONERS OF THE
PORT OF NEW ORLEANS, 6 F.M.B. 415.  /33/  BUT HERE A RELATIVELY LARGE
CHARGE WAS UNEQUALLY IMPOSED.  THE BENEFITS RECEIVED BY THE PETITIONER
MAY HAVE BEEN SUBSTANTIAL, BUT OTHER CARGO RECEIVED GREATER BENEFITS AT
ONE-TENTH THE COST.  /34/  MOREOVER, THE QUESTION OF REASONABLENESS
UNDER SEC. 17 DOES NOT DEPEND UPON UNLAWFUL OR DISCRIMINATORY INTENT. 
AS THE COMMISSION ITSELF HAS SAID: 

"(SECTIONS 16 AND 17) PROSCRIBE AND MAKE UNLAWFUL CERTAIN CONDUCT,
WITHOUT REGARD TO INTENT.  THE OFFENSE IS COMMITTED BY THE MERE DOING
OF THE ACT, AND THE QUESTION OF INTENT IS NOT INVOLVED."  HELLENIC
LINES LTD.-- VIOLATION OF SECTIONS 16 (FIRST) AND 17, 7 F.M.C. 673, 675
676 (1964).  CF. UNITED STATES V. ILLINOIS CENTRAL R. CO., 263 U.S.
515, 523-526; ICC V. CHICAGO G.W.R. CO., 209 U.S. 108. 

THE QUESTION UNDER SEC. 17 IS NOT WHETHER THE PETITIONER HAS
RECEIVED SOME SUBSTANTIAL BENEFIT AS THE RESULT OF THE MECH FUND
ASSESSMENT, BUT WHETHER THE CORRELATION OF THAT BENEFIT TO THE CHARGES
IMPOSED IS REASONABLE.  THE "SUBSTANTIAL BENEFITS" MEASURE OF
UNREASONABLENESS USED BY THE COMMISSION IN THIS CASE IS FAR TOO BLUNT
AN INSTRUMENT.  NOTHING IN THE LANGUAGE OR HISTORY OF THE STATUTE
SUPPORTS SO TORTUED A CONSTRUCTION OF THE PHRASE "JUST AND
REASONABLE."  THE COMMISSION HAS CITED NO SIMILAR CONSTRUCTION OF THE
PHRASE BY ANY OTHER REGULATORY AGENCY OR COURT.  INDEED, IN PAST
DECISIONS THE COMMISSION ITSELF HAS NOT APPLIED ANY TEST.  SEE
CALIFORNIA STEVEDORE & BALLAST CO. V. STOCKTON ELEVATORS, INC., 8
F.M.B. 97 (1964), AND PRACTICES, ETC., OF SAN FRANCISCO BAY AREA
TERMINALS, 2 U.S.M.C. 588 (1941), AFFIRMED, 320 U.S. 577, WHERE THE
COMMISSION FOUND VIOLATIONS OF SEC. 17 EVEN THOUGH THE BENEFITS
RECEIVED WERE CLEARLY SUBSTANTIAL.  THE PROPER INQUIRY UNDER SEC. 17,
IS, IN A WORD, WHETHER THE CHARGE LEVIED IS REASONABLY RELATED TO THE
SERVICE RENDERED. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  ALL PARTIES AGREE THAT THIS AGREEMENT WAS AN ENLIGHTENED,
FORWARD-LOOKING STEP IN WEST COAST LONGSHORE LABOR RELATIONS.  SEE
KOSSORIS, WORKING RULES IN WEST COAST LONGSHORING, 84 MONTHLY LABOR
REV. 1 (1961); KILLINGSWORTH, THE MODERNIZATION OF WEST COAST LONGSHORE
WORK RULES, 15 IND. & LAB.REL.REV.  295 (1962); ILWU (AMERICAN MAIL
LINE), 144 N.L.R.B. 1432, 1442 (1963). 

THE AGREEMENT WAS NOT SIGNED IN FINAL FORM UNTIL NOVEMBER 15, 1961,
ALTHOUGH IT WAS IMPLEMENTED IN MANY RESPECTS PRIOR TO THAT DATE. 

/2/  THE AGREEMENT HAS BEEN CONTINUED, AND THE MECH FUND IS STILL
BEING COLLECTED AND PAID OUT. 

/3/  A MINORITY OF THE COMMITTEE RECOMMENDED THAT THE MECH FUND BE
RAISED BY THE SAME FORMULA BY WHICH THE ASSOCIATION'S DUES WERE LEVIED-
A FORMULA COMBINING BOTH TONNAGE HANDLED AND MAN-HOURS EMPLOYED, IN A
RATION OF 40/60. 

ALTHOUGH THE MECH FUND WAS INITIALLY ASSESSED ENTIRELY ON THE BASIS
OF TONNAGE, THE FORMULA WAS LATER AMENDED TO ASSESS EMPLOYERS OF MARINE
CLERKS ON A MAN-HOUR BASIS.  ABOUT 12% OF THE FUND WAS COLLECTED IN
THIS WAY. 

/4/  BULK CARGO WAS ASSESSED AT 5 1/2[ PER REVENUE TON.  IN DECEMBER
1961, THE RATES WERE INCREASED TO 28 1/2[ FOR GENERAL CARGO AND 9[ FOR
BULK CARGO. 

/5/  ON CHARTERED VESSLES AUTOMOBILES ARE MANIFESTED ON A UNIT BASIS
(SHOWIG WEIGHT AND SOMETIMES MEASUREMENT).  ON COMMON CARRIERS BOTH
WEIGHT AND MEASUREMENT ARE SHOWN.  IN COASTWISE TRADE AUTOMOBILES ARE
MANIFESTED BY WEIGHT. 

/6/  SOME TIME AFTER THE ASSESSMENT AGREEMENT WAS IMPLEMENTED,
TERMINALS' CHARGE TO THE PETITIONER EXCLUSIVE OF THE ASSESSMENT
DECREASED.  THE AMOUNT OF THE DECREASE DOES NOT APPEAR IN THE RECORD. 

/7/  THESE FIGURES REPRESENT A WEIGHTED AVERAGE OF THE PETITIONER'S
TWO MODEL LINES AT THE TIME OF THE ASSESSMENT AGREEMENT.  PASSENGER
MODELS WERE 0.8 TON BY WEIGHT AND 7.8 TONS BY MEASUREMENT; UNLOADING
COSTS INITIALLY INCREASED AN ESTIMATED 22%.  TRANSPORTER MODELS WERE
1.1 TONS BY WEIGHT AND 11.4 TONS BY MEASUREMENT; UNLOADING COSTS
INITIALLY INCREASED AN ESTIMATED 31%. 

/8/  WHEN THE MECH FUND AGREEMENT WAS REACHED, THE UNLOADING OF
AUTOMOBILES WAS ALREADY SO HIGHLY MECHANIZED THAT THERE WAS LITTLE
LIKELIHOOD OF IMPROVEMENT.  HENCE SHIPPERS OF AUTOMOBILES STOOD TO
RECEIVE FROM THE AGREEMENT ONLY THE GENERAL BENEFITS OF A STABLE LABOR
SITUATION, SUCH AS FREEDOM FROM STRIKES AND SLOWDOWNS. 

/9/  THE COMMITTEE DID MAKE DOWNWARD ADJUSTMENTS FOR SCRAP METAL AND
LUMBER. 

/10/  BY VIRTUE OF THE ASSOCIATION'S BYLAWS, CARRIERS CONTROL THE
BOARD OF DIRECTORS AND A-L MEMBERSHIP VOTES.  BOTH THE COMMITTEE WHICH
DEVISED THE ASSESSMENT FORMULA AND THE ONE WHICH LATER RULED ON CLAIMS
OF INEQUITIES WERE MADE UP ENTIRELY OF CARRIERS; NEITHER COMMITTEE HAD
A SINGLE MEMBER WHO WAS A STEVEDORING CONTRACTOR OR TERMINAL OPERATOR. 
/11/  THE PETITIONER IS THE LARGEST SHIPPER OF DRY CARGO BY CHARTER
TO WEST COAST PORTS.  IT SHIPS MORE THAN 75% OF ITS VEHICLES BY CHARTER
AND MOST OF THE REST BY COMMON CARRIERS WHICH ARE NOT MEMBERS OF THE
ASSOCIATION.  ABOUT TWO-THIRDS OF ALL AUTOMOBILES IMPORTED THROUGH WEST
COAST PORTS ARE VOLKSWAGENS.  IT APPEARS THAT NO OTHER IMPORTER OF
AUTOMOBILES THROUGH WEST COAST PORTS USES CHARTERED VESSELS.     MOST,
BUT NOT ALL, OF THE STEVEDORING CONTRACTORS AND TERMINAL OPERATORS
PASSED THE MECH FUND ASSESSMENT ON TO THEIR CUSTOMERS.  IN MOST
INSTANCES THESE CUSTOMERS WERE COMMON CARRIERS WHO WERE MEMBERS OF THE
ASSOCIATION.  THE MEMBER CARRIERS DID NOT PASS THE ASSESSMENT ON TO
SHIPPERS.  HENCE, EXCEPT IN SITUATIONS LIKE THE PETITIONER'S, THE COST
OF THE MECH FUND WAS BORNE BY ASSOCIATION MEMBERS. 

/12/  VOLKSWAGENWERK AKTIENGESELLSCHAFT V. MARINE TERMINALS CORP., 9
F.M.C. 77. 

/13/  VOLKSWAGENWERK AKTIENGESELLSCHAFT V. FMC, 125 U.S.APP.D.C.
282, 371 F.2D 747. 

/14/  388 U.S. 909. 

/15/  "EVERY COMMON CARRIER BY WATER, OR OTHER PERSON SUBJECT TO
THIS CHAPTER, SHALL FILE IMMEDIATELY WITH THE COMMISSION A TRUE COPY,
OR, IF ORAL, A TRUE AND COMPLETE MEMORANDUM, OF EVERY AGREEMENT WITH
ANOTHER SUCH CARRIER OR OTHER PERSON SUBJECT TO THIS CHAPTER, OR
MODIFICATION OR CANCELLATION THEREOF, TO WHICH IT MAY BE A PARTY OR
CONFORM IN WHOLE OR IN PART, FIXING OR REGULATING TRANSPORTATION RATES
OR FARES; GIVING OR RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER
SPECIAL PRIVILEGES OR ADVANTAGES; CONTROLLING, REGULATING, PREVENTING,
OR DESTROYING COMPETITION; POOLING OR APPORTIONING EARNINGS, LOSSES, OR
TRAFFIC; ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE
NUMBER AND CHARACTER OF SAILINGS BETWEEN PORTS; LIMITING OR REGULATING
IN ANY WAY THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO
BE CARRIER; OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL,
OR COOPERATIVE WORKING ARRANGEMENT.  THE TERM 'AGREEMENT' IN THIS
46 U.S.C. 814. 

THE ORIGINAL STATUTE IN 1916 REQUIRED FILING WITH THE UNITED STATES
SHIPPING BOARD.  39 STAT. 728, 729, 733.  THE SHIPPING BOARD WAS
SUCCEEDED IN 1933 BY THE UNITED STATES SHIPPING BOARD BUREAU OF THE
DEPARTMENT OF COMMERCE, EXEC. ORDER NO. 6166, SEC. 12(1933); IN 1936 BY
THE UNITED STATES MARITIME COMMISSION, 49 STAT. 1985; IN 1950 BY THE
FEDERAL MARITIME BOARD, 64 STAT. 1273; AND IN 1961 BY THE FEDERAL
MARITIME COMMISSION, 75 STAT. 840.  IN THIS OPINION THE FEDERAL
MARITIME COMMISSION AND ITS PREDECESSORS ARE COLLECTIVELY REFERRED TO
AS THE COMMISSION. 

/16/  "ANY AGREEMENT AND ANY MODIFICATION OR CANCELLATION OF ANY
AGREEMENT NOT APPROVED, OR DISAPPROVED, BY THE COMMISSION SHALL BE
UNLAWFUL, AND AGREEMENTS, MODIFICATIONS, AND CANCELLATIONS SHALL BE
LAWFUL ONLY WHEN AND AS LONG AS APPROVED BY THE COMMISSION; BEFORE
APPROVAL OR AFTER DISAPPROVAL IT SHALL BE UNLAWFUL TO CARRY OUT IN
WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, ANY SUCH AGREEMENT,
MODIFICATION, OR CANCELLATION; EXCEPT THAT TARIFF RATES, FARES, AND
CHARGES, AND CLASSIFICATIONS, RULES, AND REGULATIONS EXPLANATORY
THEREOF (INCLUDING CHANGES IN SPECIAL RATES AND CHARGES COVERED BY
BETWEEN SUCH RATES AND CHARGES AND THE RATES AND CHARGES APPLICABLE TO
NONCONTRACT SHIPPERS) AGREED UPON BY APPROVED CONFERENCES, AND CHANGES
AND AMENDMENTS THERETO, IF OTHERWISE IN ACCORDANCE WITH LAW, SHALL BE
PERMITTED TO TAKE EFFECT WITHOUT PRIOR APPROVAL UPON COMPLIANCE WITH
THE PUBLICATION AND FILING REQUIREMENTS OF SECTION 817(B) OF THIS TITLE
AND WITH THE PROVISIONS OF ANY REGULATIONS THE COMMISSION MAY ADOPT." 
46 U.S.C. 814. 

/17/  "THE COMMISSION SHALL BY ORDER, AFTER NOTICE AND HEARING,
DISAPPROVE, CANCEL OR MODIFY ANY AGREEMENT, OR ANY MODIFICATION OR
CANCELLATION THEREOF, WHETHER OR NOT PREVIOUSLY APPROVED BY IT, THAT IT
FINDS TO BE UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN CARRIERS,
SHIPPERS, EXPORTERS, IMPORTERS, OR PORTS, OR BETWEEN EXPORTERS FROM THE
UNITED STATES AND THEIR FOREIGN COMPETITORS, OR TO OPERATE TO THE
DETRIMENT OF THE COMMERCE OF THE UNITED STATES, OR TO BE CONTRARY TO
THE PUBLIC INTEREST, OR TO BE IN VIOLATION OF THIS CHAPTER, AND SHALL
APPROVE ALL OTHER AGREEMENTS, MODIFICATIONS, OR CANCELLATIONS.  NO SUCH
AGREEMENT SHALL BE APPROVED, NOR SHALL CONTINUED APPROVAL BE PERMITTED
FOR ANY AGREEMENT (1) BETWEEN CARRIERS NOT MEMBERS OF THE SAME
CONFERENCE OR CONFERENCES OF CARRIERS SERVING DIFFERENT TRADES THAT
WOULD OTHERWISE BE NATURALLY COMPETITIVE, UNLESS IN THE CASE OF
AGREEMENTS BETWEEN CARRIERS, EACH CARRIER, OR IN THE CASE OF AGREEMENT
BETWEEN CONFERENCES, EACH CONFERENCE, RETAINS THE RIGHT OF INDEPENDENT
ACTION, OR (2) IN RESPECT TO ANY CONFERENCE AGREEMENT, WHICH FAILS TO
PROVIDE REASONABLE AND EQUAL TERMS AND CONDITIONS FOR ADMISSION AND
READMISSION TO CONFERENCE MEMBERSHIP OF OTHER QUALIFIED CARRIERS IN THE
TRADE, OR FAILS TO PROVIDE THAT ANY MEMBER MAY WITHDRAW FROM MEMBERSHIP
UPON REASONABLE NOTICE WITHOUT PENALTY FOR SUCH WITHDRAWAL. 

"THE COMMISSION SHALL DISAPPROVE ANY SUCH AGREEMENT, AFTER NOTICE
AND HEARING, ON A FINDING OF INADEQUATE POLICING OF THE OBLIGATIONS
UNDER IT, OR OF FAILURE OR REFUSAL TO ADOPT AND MAINTAIN REASONABLE
PROCEDURES FOR PROMPTLY AND FAIRLY HEARING AND CONSIDERING SHIPPERS'
REQUESTS AND COMPLAINTS."  46 U.S.C. 814. 

/18/  "EVERY AGREEMENT, MODIFICATION, OR CANCELLATION LAWFUL UNDER
THIS SECTION, OR PERMITTED UNDER SECTION 813A OF THIS TITLE, SHALL BE
EXCEPTED FROM THE PROVISIONS OF SECTIONS 1-11 AND 15 OF TITLE 15, AND
AMENDMENTS AND ACTS SUPPLEMENTARY THERETO."  46 U.S.C. 814. 

/19/  THE DISSENTING OPINION OF COMMISSIONER PATTERSON VIGOROUSLY
ATTACKED THE COMMISSION'S FINDING THAT THERE WAS NO IMPLIED
UNDERSTANDING AMONG THE ASSOCIATION MEMBERS THAT THE ASSESSMENT WOULD
BE PASSED ON.  9 F.M.C.,AT 101-104.  THE COURT OF APPEALS FOUND
CONSIDERABLE EVIDENCE IN SUPPORT OF COMMISSIONER PATTERSON'S VIEW.  125
U.S.APP.D.C.,AT 290, N. 7, 371 F.2D, AT 290, N. 7, 371 F.2D, AT 755, N.
7.  HOWEVER, APPLYING THE SUBSTANTIAL EVIDENCE RULE, THE COURT UPHELD
THE COMMISSION'S FINDING, ALTHOUGH INDICATING THAT IT MIGHT HAVE FOUND
THE FACTS DIFFERENTLY ITSELF.  124 U.S.APP.D.C.,AT 290-291, 371 F.2D,
AT 755, 756. 

/20/  ONE OF THE STANDARDS FOR APPROVAL UNDER SEC. 15, ADDED IN
1961, 75 STAT. 763, IS WHETHER OR NOT THE AGREEMENT IS "CONTRARY TO THE
PUBLIC INTEREST."  SEE N. 17, SUPRA.  "WE THINK IT NOW BEYOND DISPUTE
THAT 'THE PUBLIC INTEREST' WITHIN THE MEANING OF SECTION 15 INCLUDES
THE NATIONAL POLICY EMBODIED IN THE ANTITRUST LAWS."  MEDITERRANEAN
POOLS INVESTIGATION, 9 F.M.C. 264, 289. 

ANY AGREEMENT SUBJECT TO SEC. 15 FILING THAT IS NOT BOTH FILED AND
APPROVED IS NOT ONLY ILLEGAL UNDER SEC. 15 BUT ALSO SUBJECT TO ATTACK
UNDER THE ANTITRUST LAWS.  CARNATION CO. V. PACIFIC WESTBOUND
CONFERENCE, 383 U.S. 213. 

/21/  "(THE SHIPPING ACT SPECIFICALLY PROVIDES MACHINERY FOR
LEGALIZING THAT WHICH WOULD OTHERWISE BE ILLEGAL UNDER THE ANTI-TRUST
LAWS.  THE CONDITION UPON WHICH SUCH AUTHORITY IS GRANTED IS THAT THE
AGENCY ENTRUSTED WITH THE DUTY TO PROTECT THE PUBLIC INTEREST
SCRUTINIZE THE AGREEMENT TO MAKE SURE THAT THE CONDUCT THUS LEGALIZED
DOES NOT INVADE THE PROHIBITIONS OF THE ANTI-TRUST LAWS ANY MORE THAN
IS NECESSARY TO SERVE THE PURPOSES OF THE REGULATORY STATUTE."  93
U.S.APP.D.C.,AT 299, 211 F.2D, AT 57. 

/22/  SEE ALSO STATEMENT OF COMMISSION CHAIRMAN HARLLEE REQUESTING
FROM CONGRESS THE AUTHORITY FOR THE COMMISSION TO EXEMPT FROM SEC. 15
SUCH OTHERWISE INCLUDED AGREEMENTS AS THOSE BETWEEN TWO FREIGHT
FORWARDERS IN DIFFERENT PORTS TO PERFORM SERVICES FOR EACH OTHER.  H.R.
REP.NO. 2248, 89TH CONG., 2D SESS., 4-5 (1966). 

/23/  SECTION 15 REQUIRES FILING OF "EVERY AGREEMENT" IN ANY OF
SEVEN CATEGORIES, AND ONE OF THE SEVEN COMPRISES ALL AGREEMENTS WHICH
"REGULATE) . . . COMPETITION."  SEE N. 15, SUPRA.  THE OTHER SIX
CATEGORIES WOULD BE RENDERED VIRTUALLY MEANINGLESS BY THE COMMISSION'S
CONSTRUCTION. 

/24/  HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, REPORT ON
STEAMSHIP AGREEMENTS AND AFFILIATIONS, H.R. DOC. NO. 805, 63D CONG., 2D
SESS., 415-424 (1914). 

/25/  THE RECOMMENDATIONS OF THE ALEXANDER REPORT WERE INCORPORATED
INTO BOTH THE HOUSE AND SENATE REPORTS ON THE SHIPPING ACT.  H.R. REP.
NO. 659, 64TH CONG., 1ST SESS., 27-32 (1916); S. REP. NO. 689, 64TH
CONG., 1ST SESS., 7-12 (1916). 

/26/  THE NEED FOR THIS PROVISION IS SET FORTH IN S. REP. NO. 1459,
89TH CONG., 2D SESS., 2 (1966): 

"THE FEDERAL MARITIME COMMISSION UNDER THE SHIPPING ACT, 1916,
REGULATES CERTAIN OPERATIONS OF WATER CARRIERS AND OTHER PERSONS
SUBJECT TO THE ACT WHICH HAVE ONLY SLIGHT EFFECT ON THE FOREIGN
COMMERCE OF THIS COUNTRY AND ARE NOT SIGNIFICANT IN THE OVERALL DESIGN
OF REGULATION CONTEMPLATED BY THE 1916 ACT.  EXACTING COMPLIANCE WITH
WITH THE ACT UNDER THESE CIRCUMSTANCES HAS PROVEN UNNECESSARILY COSTLY
TO THE CARRIER AND THE GOVERNMENT. 

"THE AUTHORITY CONFERRED UNDER THIS LEGISLATION WILL RELIEVE THE
COMMISSION AND AFFECTED CARRIERS OF AN UNDUE REGULATORY BURDEN.  IN
ADDITION, A GENERAL EXEMPTION WILL PRECLUDE THE NECESSITY FOR A
PIECEMEAL APPROACH IN THE FUTURE." 

PRIOR TO THIS 1966 AMENDMENT, THE COMMISSION HAD TAKEN SOME STEPS TO
PROTECT ITSELF FROM DE MINIMIS FILINGS.  IN SECTION 15 INQUIRY, 1
U.S.S.B. 121 (1927), THE COMMISSION HELD "ROUTINE" INTRACONFERENCE
CHANGES AND TRANSACTIONS NOT SUBJECT TO SEC. 15.  IN ORANJE LINE V.
ANCHOR LINE, 6 F.M.B. 199, 209 (1961), THE COMMISSION CONSTRUED ITS
DECISION IN LOS ANGELES BY-PRODUCTS CO. V. BARBER S.S. LINES, 2
U.S.M.C. 106 (1939), AS HOLDING JOINT ADVERTISING NOT SUBJECT TO SEC.
15.  PROCEEDING UNDER GENERAL POWER TO ISSUE REGULATIONS CONFERRED ON
IT IN 1961, 46 U.S.C. 841A, THE COMMISSION EXEMPTED AT LEAST ONE CLASS
OF DE MINIMIS AGREEMENTS IN 46 CFR SECS. 530.5(D)(4) AND (5), DEALING
WITH CERTAIN TERMINAL AGREEMENTS. 

/27/  "IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY WATER, OR
OTHER PERSON SUBJECT TO THIS CHAPTER, EITHER ALONE OR IN CONJUNCTION
WITH ANY OTHER PERSON, DIRECTLY OR INDIRECTLY-- 

"FIRST.  TO MAKE OR GIVE ANY UNDUE OR UNREASONABLE PREFERENCE OR
ADVANTAGE TO ANY PARTICULAR PERSON, LOCALITY, OR DESCRIPTION OF TRAFFIC
IN ANY RESPECT WHATSOEVER, OR TO SUBJECT ANY PARTICULAR PERSON,
LOCALITY, OR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER . . . "  46 U.S.C.
815. 

/28/  "EVERY SUCH CARRIER AND EVERY OTHER PERSON SUBJECT TO THIS
CHAPTER SHALL ESTALBISH, OBSERVE, AND ENFORCE JUST AND REASONABLE
REGULATIONS AND PRACTICES RELATING TO OR CONNECTED WITH THE RECEIVING,
HANDLING, STORING, OR DELIVING OF PROPERTY.  WHENEVER THE BOARD FINDS
THAT ANY SUCH REGULATION OR PRACTICE IS UNJUST OR UNREASONABLE IT MAY
DETERMINE, PRESCRIBE, AND ORDER ENFORCED A JUST AND REASONABLE
REGULATION OR PRACTICE."  46 U.S.C. 816. 

/29/  SEE N. 17, SUPRA. 

/30/  SEE, E.G., BOSTON WOOL TRADE ASSN. V. M. & M.T. CO., 1
U.S.S.B. 24 (1921); EAGLE-OTTAWA LEATHER CO. V. GOODRICH TRANSIT CO., 1
U.S.S.B. 101 (1926); PHILADELPHIA OCEAN TRAFFIC BUREAU V. EXPORT S.S.
CORP., 1 U.S.S.B. 538 (1936); HUBER MFG. CO. V. N.V. STOOMVAART
MAATSCHAPPIJ "NEDERLAND," 4 F.M.B. 343 (1953); WEST INDIES FRUIT CO. V.
FLOTA MERCANTE, 7 F.M.C. 66 (1962). 

/31/  SEE S. BROSS, OCEAN SHIPPING 189-190 (1956); C. CUFLEY, OCEAN
FREIGHTS AND CHARTERING 400-407 (1962). 

/32/  THE INTERSTATE COMMERCE COMMISSION HAS A COMPETITIVE
RELATIONSHIP RULE WITH RESPECT TO SEC. 3(1) OF THE INTERSTATE COMMERCE
ACT, 54 STAT. 902, 49 U.S.C. 3(1), RHEEM MFG. CO. V. CHICAGO, R.I. &
P.R. CO., 273 I.C.C. 185; UNITED STATES V. GREAT NORTHERN R. CO., 301
I.C.C. 21.  HOWEVER, THAT COMMISSION HAS SAID: 

"THIS COMMISSION HAS NEVER HELD THAT COMPETITION IS AN INDISPENSABLE
ELEMENT IN A SITUATION OF UNDUE PREJUDICE AND PREFERENCE, ALTHOUGH IT
HAS FREQUENTLY SAID THAT 'ORDINARILY,' OR 'GENERALLY,' A COMPETITIVE
RELATION MUST APPEAR."  JOSEPH A. GODDARD REALTY CO. V. NEW YORK, C. &
ST. L.R. CO., 229 I.C.C. 497, 501. 

/33/  IN THE EVANS COOPERAGE CASE THE COMMISSION UPHELD A UNIFORM
WHARFAGE CHARGE WHICH WAS IMPOSED ON ALL THOSE WHO USED THE WHARF, EVEN
THOUGH THE VARIOUS USERS OF THE WHARF DID NOT ALL RECEIVE PRECISELY
EQUAL BENEFITS FROM IT.  BUT THE COMMISSION LOOKED BEYOND "SUBSTANTIAL
BENEFITS" TO THE RELATIONSHIP BETWEEN THE SERVICE AND THE CHARGE: 

"THE (COMMISSION OF THE PORT OF NEW ORLEANS) HAS MADE A CHARGE TO
HELP DEFRAY ITS COSTS OF OPERATING FACILITIES AS MEASURED BY CARGO
HANDLED IN THE AREA AND THE ONLY QUESTION IS WHETHER ITS FACILITIES ARE
BEING USED AND THE COMMISSION IS PERFORMING A SERVICE REASONABLY
RELATED TO ITS CHARGES.  THE EXAMINER CONSIDERED THE EVIDENCE AND FOUND
THAT IT WAS."  6 F.M.B.,AT 418-419. 

/34/  SEE N. 8, SUPRA. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

ALTHOUGH I AGREE WITH THE CONCLUSIONS REACHED BY THE COURT IN THIS
CASE, I DEEM IT DESIRABLE TO AMPLIFY THE REASONS, AS I SEE THEM, FOR
WHAT IS DECIDED TODAY.  MORE ESPECIALLY, I THINK THAT FURTHER
JUSTIFICATION IS NEEDED FOR THE COURT'S DECISION (1) THAT THE
"ASSESSMENT AGREEMENT" FALLS WITHIN THE COMMISSION'S JURISDICTION UNDER
SEC. 15 NOTWITHSTANDING ITS INTIMATE CONNECTION WITH THE UNDERLYING
COLLECTIVE BARGAINING AGREEMENT; AND (2) THAT THE COMMISSION SHOULD
GIVE FURTHER CONSIDERATION TO THE SECS. 16 AND 17 ISSUES
NOTWITHSTANDING THAT IT HAS ALREADY DETERMINED THEM.              I. 

THE PACIFIC MARITIME ASSOCIATION IS A MULTI-EMPLOYER COLLECTIVE
BARGAINING GROUP.  ITS "ASSESSMENT AGREEMENT" DIRECTLY IN QUESTION HERE
IS CLOSELY RELATED TO A COLLECTIVE BARGAINING AGREEMENT COVERING A
SUBJECT ABOUT WHICH EMPLOYERS ARE REQUIRED TO BARGAIN, "TERMS AND
CONDITIONS OF EMPLOYMENT."  /1/  THIS UNDERLYING LABOR AGREEMENT WAS,
ACCORDING TO APPARENTLY UNANIMOUS INDUSTRY AND EXPERT OPINION, A HIGHLY
DESIRABLE STEP FORWARD IN THE SHIPPING INDUSTRY. 

MULTI-EMPLOYER COLLECTIVE BARGAINING UNITS HAVE LONG BEEN RECOGNIZED
AS AS AMONG THE UNIT CLASSIFICATIONS THAT THE NATIONAL LABOR RELATIONS
BOARD MAY DEEM "APPROPRIATE."  IN LABOR BOARD V. TRUCK DRIVERS UNION,
353 U.S. 87, WE HELD THAT CONGRESS INTENDED 

"THAT THE BOARD SHOULD CONTINUE ITS ESTABLISHED ADMINISTRATIVE
PRACTICE OF CERTIFYING MULTI-EMPLOYER UNITS, AND INTENDED TO LEAVE TO
THE BOARD'S SPECIALIZED JUDGMENT THE INEVITABLE QUESTIONS CONCERNING
MULTI-EMPLOYER BARGAINING BOUND TO ARISE IN THE FUTURE."  ID., AT 96. 
WE SPECIFICALLY REFERRED TO LONGSHORING AS AN INDUSTRY WITH A LONG
HISTORY OF MULTI-EMPLOYER BARGAINING, AND WE NOTED 

"COGENT EVIDENCE THAT IN MANY INDUSTRIES THE MULTIEMPLOYER
BARGAINING BASIS WAS A VITAL FACTOR IN THE EFFECTUATION OF THE NATIONAL
POLICY OF PROMOTING LABOR PEACE THORUGH STRENGHTENED COLLECTIVE
BARGAINING."  ID., AT 95.  THE BOARD HAS AUTHORIZED A MULTI-EMPLOYER
BARGAINING UNIT FOR WEST COAST SHIPPING, AND THE LABOR AGREEMENT THAT
FORMS THE BACKGROUND TO THIS CASE IS ADDITIONAL "COGENT EVIDENCE." 

AT THE SAME TIME, THE VERY EXISTENCE OF MULTI-EMPLOYER UNITS, AND
THE OBVIOUS NEED FOR THE EMPLOYERS INVOLVED TO AGREE ON COLLECTIVE
POLICY, MUST INVARIABLY H AVE COMPETITIVE EFFECTS.  THE SIGNATORIES TO
A COLLECTIVE BARGAINING AGREEMENT ARE FREQUENTLY, BY THE VERY ACT OF
SIGNING, AGREEING WITH THEIR OWN COMPETITORS ON MATTERS SUCH AS LABOR
COSTS, CERTAIN NONLABOR COSTS, SERVICES TO BE PROVIDED TO THE PUBLIC,
AND (INDIRECTLY) PRICE INCREASES. 

MULTI-EMPLOYER COLLECTIVE BARGAINING MUST THEREFORE BE RECONCILED
WITH THE SOMETIMES COMPETING POLICIES OF FEDERAL LAWS PROMOTING AND
REGULATING COMPETITION, VIZ., THE ANTITRUST LAWS AND, IN THE CASE OF
MARITIME LABOR RELATIONS, THE SHIPPING ACT.  THIS IS A PROBLEM ON WHICH
CONGRESS HAS PROVIDED RELATIVELY LITTLE DIRECT GUIDANCE, /2/  BUT IT IS
ONE OF A KIND THAT THE COURT HAS REPEATEDLY GRAPPLED WITH SINCE ALLEN
BRADLEY CO. V. UNION, 325 U.S. 797.  IT IS A PROBLEM OF LINE-DRAWING. 

THE COURT, NOTING THAT THE ASSESSMENT AGREEMENT LEVIED $29,000,000
THUS "NECESSARILY RESULTING IN SUBSTANTIALLY INCREASED STEVEDORING AND
TERMINAL CHARGES," ANTE, AT 277, HOLDS THAT THE ASSESSMENT AGREEMENT
MUST BE FILED UNDER SEC. 15 OF THE ACT.  IT SAYS THAT THE UNDERLYING
LABOR AGREEMENT IS NOT BEFORE US AND THE "CONTINUING VALIDITY" OF THAT
AGREEMENT IS NOT BROUGHT INTO QUESTION BY TODAY'S DECISION.  ANTE, AT
278. 

ON THE OTHER HAND, MY BROTHER DOUGLAS ARUGES THAT ON THE COURT'S
PREMISE THE ASSESSMENT AGREEMENT COULD NOT BE DISTINGUISHED FROM ANY
COLLECTIVE BARGAINING AGREEMENT THAT "RAISED LABOR COSTS BEYOND THE
POINT AT WHICH PMA MEMBERS COULD BE EXPECTED TO ABSORB THOSE COSTS
WITHOUT RAISING PRICES OR CHARGES."  POST, AT 313.  HE FURTHER CONTENDS
THAT IF PART OF A COLLECTIVE BARGAINING AGREEMENT IS SUBJECT TO
COMMISSION APPROVAL, THIS WILL STIFLE LABOR NEGOTIATION.  /3/
CONSEQUENTLY, HE SUGGESTS THAT A PROPER ACCOMMODATION BETWEEN "LABOR"
AND "COMPETITION" INTERESTS CAN BE REACHED BY EXEMPTING BOTH LABOR
AGREEMENTS AND LABOR-RELATED AGREEMENTS FROM THE FILING REQUIREMENT OF
SEC. 15 BUT LEAVING THEM SUBJECT TO THE SPECIFIC PROHIBITIONS OF THE
ANTITRUST LAWS AND SECS. 16 AND 17 OF THE SHIPPING ACT. 

THIS SUGGESTED ACCOMMODATION SEEMS TO ME DEMONSTRABLY WRONG.  IN THE
FIRST PLACE, AS THE COURT NOTES, THE FILING REQUIREMENT OF SEC. 15 WAS
DRAFTED BROADLY, AND THE FILING-AND-APPROVAL PROCESS INCLUDES REVIEW OF
QUESTIONS ARISING UNDER SECS. 16 AND 17, AND SPECIFICALLY CREATES AN
EXEMPTION FROM ANTITRUST ATTACK.  HENCE, IF THE QUESTION WERE SIMPLY
WHETHER SUBSTANTIVE CHALLENGE TO A MARITIME AGREEMENT (DEALING WITH
LABOR OR WITH ANY OTHER MATTER) IS TO TAKE PLACE IN ADVANCE OF
IMPLEMENTATION OF THE AGREEMENT OR, INSTEAD, DURING ITS OPERATION, I
SHOULD HAVE THOUGHT IT CLEAR THAT CONGRESS CHOSE THE FORMER
ALTERNATIVE.  FURTHERMORE, I WOULD FIND IT VERY DIFFICULT TO SEE WHY
PROVISION FOR ADVANCE APPROVAL AND EXEMPTION OF LABOR-RELATED
AGREEMENTS WOULD NOT BE PREFERABLE, FROM THE STANDPOINT OF FACILITATING
COLLECTIVE BARGAINING, TO THE "WAIT-AND-SEE" APPROACH. 

THE REAL DIFFICULTY IN THIS CASE IS NOT TO DISTINGUISH BETWEEN
AGREEMENTS THAT MUST BE FILED AND AGREEMENTS WHOSE IMPACT ON
COMPETITION WILL BE EVALUATED AFTER IMPLEMENTATION, BUT TO DEFINE THE
COMMISSION'S JURISDICTION IN SUCH A WAY THAT (WHETHER CHALLENGES ARISE
BEFORE OR AFTER IMPLEMENTATION) THE COMMISSION WILL NOT IMPROPERLY BE
BROUGHT INTO LABOR MATTERS WHERE IT DOES NOT BELONG.  THE COURT'S ONLY
SUGGESTION IS THAT THE LABOR AGREEMENTS INVOLVED IN THIS CASE "FALL IN
AN AREA OF CONCERN TO THE NATIONAL LABOR RELATIONS BOARD."  ANTE, AT
278. 

MORE CIRCUMSPECT ANALYSIS THAN THIS IS NEEDED, I BELIEVE.  IN THE
FIRST PLACE, SINCE THE LATER VALIDITY AND ANTITRUST IMMUNITY OF ALL
AGREEMENTS SUBJECT TO SEC. 15 DEPEND UPON FILING, IT IS DESIRABLE THAT
SIGNATORIES TO AGREEMENTS BE GIVEN MORE PRECISE INSTRUCTIONS THAN THAT
THEY NEED NOT FILE IF THEY ARE IN AN AREA OF LABOR BOARD "CONCERN." 
FURTHERMORE, I SEE NO WARRANT FOR ASSUMING, IN ADVANCE, THAT A MARITIME
AGREEMENT MUST ALWAYS FALL NEATLY INTO EITHER THE LABOR BOARD OR
MARITIME COMMISSION DOMAIN; A SINGLE CONTRACT MIGHT WELL RAISE ISSUES
OF CONCERN TO BOTH. 

THE COMMISSION TOOK THE POSITION THAT SEC. 15 OF THE ACT, REQUIRING
FILLING, WAS MEANT TO APPLY "ONLY TO THOSE AGREEMENTS INVOLVING
PRACTICES WHICH AFFECT TAHT COMPETITION WHICH IN THE ABSENCE OF THE
AGREEMENT WOULD EXIST BETWEEN THE PARTIES WHEN DEALING WITH THE
SHIPPING OR TRAVELING PUBLIC OR THEIR REPRESENTATIVES."  /4/  I AGREE
WITH THE COURT'S CONCLUSION THAT PROPER APPLICATION OF THAT PRINCIPLE
TO THIS CASE WOULD REQUIRE THE OPPOSITE RESULT FROM THE ONE THE
COMMISSIONREACHED.  THE DIFFICULTY, HOWEVER, IS THAT THE PRINCIPLE IS
EXCESSIVELY BROAD:  ANY SIGNIFICANT MULTI-EMPLOYER AGREEMENT ON
ECONOMIC MATTERS "AFFECTS COMPETITION" WITH RESPECT TO PRICES AND
SERVICES TO THE PUBLIC, EVEN IF IT IS A COLLECTIVE BARGAINING AGREEMENT
OR AN EMPLOYER AGREEMENT COLLATERAL THERETO. 

SINCE MARITIME EMPLOYERS ARE PERMITTED TO BARGAIN AS A GROUP, AND
SINCE THEY ARE REQUIRED TO BARGAIN ABOUT CERTAIN SUBJECTS, THE
RESULTING AGREEMENTS MUST HAVE SOME EXEMPTION FROM THE FILING
REQUIREMENTS OF SEC. 15 AND FROM SUCCESSFUL CHALLENGE UNDER THE
ANTITRUST LAWS OR UNDER THE SUBSTANTIVE PRINCIPLES IN SECS. 16 AND 17
OF THE SHIPPING ACT.  THE EXACT EXTENT OF THE "LABOR EXEMPTION" OR
LABOR IMMUNITY" FROM STATUTES REGULATING COMPETITION HAS TROUBLED THIS
COURT BEFORE; /5/  HOWEVER, SINCE NO COLLECTIVE BARGAINING AGREEMENT IN
THE MARITIME INDUSTRY IS NOW BEFORE US, IT WOULD BE INAPPROPRIATE TO
SUGGEST THE AFFIRMATIVE EXTENT OF THE IMMUNITY.  THE IMPORTANT POINT IN
THIS CASE IS AN OPPOSITE AND TWO-EDGED ONE:  THE ASSESSMENT AGREEMENT
BEFORE US IS NOT IMMUNE OR EXEMPT, FOR IT RAISES "SHIPPING"  PROBLEMS
LOGICALLY DISTINCT FROM THE INDUSTRY'S LABOR PROBLEMS; AT THE SAME
TIME, COMMISSION REVIEW ITSELF MUST BE CIRCUMSCRIBED BY THE EXISTENCE
OF LABOR PROBLEMS THAT IT IS NOT EQUIPPED TO RESOLVE. 

THE ASSESSMENT AGREEMENT WAS, OF COURSE, CONSEQUENT UPON THE LABOR
AGREEMENT COMMITTING PMA TO RAISE THE FUND.  THE UNION SIDE WAS
CONCERNED WITH A GUARANTEE THAT THE FUND WOULD BE RAISED SOMEHOW, AND
THE LABOR AGREEMENT GUARANTEED ONLY THAT MUCH.  BUT WHENEVER ANY MULTI
EMPLOYER BARGAINING UNIT AGREES TO PROVIDE BENEFIT FOR EMPLOYEES THERE
ARISES A PROBLEM OF HOW TO ALLOCATE THE COSTS AMONG THE VARIOUS
EMPLOYERS AND (IN CONSEQUENCE) AMONG THEIR CUSTOMERS. 

OFTEN, THE "ALLOCATION" DECISION FOLLOWS DIRECTLY FROM THE TERMS OF
THE LABOR AGREEMENT.  IN THE CASE OF A MULTI-EMPLOYER AGREEMENT TO
RAISE WAGES, FOR EXAMPLE, EACH EMPLOYER SIMPLY BEARS THE COST OF
BENEFITIMG HIS OWN EMPLOYEES.  IN THE PRE SENT CASE, HAD IT BEEN
POSSIBLE TO MAKE THE LEVY ON EACH EMPLOYER DIRECTLY PROPORTIONAL TO,
AND ROUGHLY SIMULTANEOUS WITH, THE SAVINGS TO THAT EMPLOYER FROM
MODERNIZATION, TWO THINGS WOULD HAVE FOLLOWED:  THE "ALLOCATION"
DECISION COULD BE SAID TO STEM DIRECTLY FROM THE TERMS OF THE LABOR
AGREEMENT, AND THE MODERNIZATION PROGRAM WOULD "PAY FOR ITSELF" AS IT
WENT ALONG, LEAVING SHIPPING CUSTOMERS UNAFFECTED. 

THE PMA, HOWEVER, DID NOT (AND PRESUMABLY COULD NOT) APPORTION COSTS
IN THIS MANNER.  TO THE EXTENT THAT, UNDER THE PLAN CHOSEN, INDIVIDUAL
EMPLOYERS WERE UNABLE TO ABSORB THE LEVY AND DEBIT IT AGAINST FUTURE
SAVINGS FROM MODERNIZATION, THE DECISION HOW MUCH EACH EMPLOYER WAS TO
PAY NECESSARILY AFFECTED THAT EMPLOYER'S CUSTOMERS AS A CLASS.  TO THE
EXTENT THAT THE PLAN WENT ON TO DETERMINE WHICH OF AN EMPLOYER'S
CUSTOMERS WOULD ULTIMATELY PAY WHICH SHARE OF AN EMPLOYER'S DUES, THE
AGREEMENT ALSO MADE CHOICES AMONG CUSTOMERS OF AN INDIVIDUAL EMPLOYER. 

THE COMMISSION NEVERTHELESS HELD THAT THE AGREEMENT DID NOT "AFFECT
COMPETITION" BECAUSE THERE WAS "NO AGREEMENT" TO PASS THE LEVY ON TO
INDIVIDUAL CUSTOMERS.  WHETHER THE ERROR BE DEEMED ONE OF "FACT" OR ONE
OF "LAW" THESE CONCLUSIONS ARE IRRECONCILABLE WITH REALITY.  TERMINAL
COMPANIES SUCH AS MTC COMPETE WITH EACH OTHER FOR THE BUSINESS OF
UNLOADING VOLKSWAGENS.  THE ALLOCATION AGREEMENT INVOLVED IN THIS CASE
INCREASES THE COST TO A TERMINAL COMPANY OF UNLOADING ONE VOLKSWAGEN BY
$2.35.  THIS IS A SUBSTANTIAL (25%) INCREASE IN THE COMPANY'S COST FOR
HANDLING THIS ONE PRODUCT.  SINCE THE MECHANIZATION AND MODERNIZATION
PROGRAM IS NOT EXPECTED TO PRODUCE A SIGNIFICANT (MUCH LESS A
COMPENSATORY) SAVING IN THE OTHER COSTS OF HANDLING VOLKSWAGENS, NO
TERMINAL COMPANY COULD, IN THE LONG RUN, "ABSORB" THIS COST:  COMPANIES
DO NOT ABSORB COSTS THAT ARE NOT EXPECTED TO PAY DIVIDENDS IN THE
FUTURE.  /6/  MTC'S ONLY CHOICE WAS WHETHER TO PASS THE $2.35 ON
DIRECTLY TO VOLKSWAGEN OR TO PASS IT ON TO ITS OTHER CUSTOMERS TO DEAL
WITH OTHER TERMINAL COMPANIES NOT BEARING THE VOLKSWAGEN CURSE, MTC WAS
IN PRACTICE COMPELLED TO PASS AT LEAST A LARGE PART OF THE ADDITIONAL
COST ON TO VOLKSWAGEN. 

THE STATEMENTS OF NUMEROUS OFFICIALS OF THE PARTICIPATING COMPANIES
TO THE EFFECT THAT THERE WERE NO "AGREEMENTS" AFFECTING VOLKSWAGEN
(STATEMENTS CONSTITUTING IN LARGE PART THE "SUBSTANTIAL EVIDENCE" ON
WHICH THE COMMISSION IS SUPPOSED TO HAVE RELIED, 125 U.S.APP.D.C.,AT
291, 371 F.2D, AT 756), ARE AT BEST QUIBBLES ABOUT THE MEANING OF
WORDS.  THE MEMBERS OF THE ASSOCIATION MUST BE TAKEN TO HAVE AGREED TO
THE OBVIOUS CONSEQUENCES OF THE PAPER THEY ALL SIGNED.  THAT PAPER DID
NOT DESTROY PRICE COMPETITION FOR VOLKSWAGEN'S TRADE; NOR WOULD A
SPECIFIC AGREEMENT TO "PASS ON" THE ADDITIONAL $2.35 CHARGE HAVE DONE
SO.  BUT THE ALLOCATION AGREEMENT MADE VOLKSWAGEN A LESS DESIRABLE
CUSTOMER TO EACH AND EVERY TERMINAL COMPANY UNLESS IT DID PASS ON THE
$2.35 CHARGE.  HOW THE COMMISSION COULD CONCLUDE THAT THIS COLLECTIVE
IMPOSITION, BY THE TERMINAL COMPANIES ON THEMSELVES, OF A HEAVY TAX FOR
HANDLING ONE KIND OF PRODUCT DID NOT "AFFECT" COMPETITION AMONG THEM
FOR THE TRADE OF SHIPPERS OF THAT PRODUCE I SIMPLY CANNOT UNDERSTAND. 

COMMISSION REVIEW OF THE FAIRNESS OF THE AGREEMENT ALLOCATING THE
COST BURDEN OF MECHANICZATION DOES NOT MEAN COMMISSION REVIEW OF A
LABOR AGREEMENT AND DOES NOT IMPLY CONSEQUENCES IN CONFLICT WITH
NATIONAL LABOR POLICY.  WHETHER TO MECHANIZE, OR OTHERWISE MODERNIZE,
AND WHAT PROVISION SHOULD BE MADE FOR DISPLACED WORKERS, ARE OBVIOUSLY
MATTERS OF UNION CONCERN, AND NEGOTIATIONS ABOUT THESE THINGS SHOULD BE
GOVERNED BY THE LAW OF COLLECTIVE BARGAINING.  RESOLUTION OF SUCH
QUESTIONS BY A DECISION TO CREATE A "MECH FUND" GAVE RISE TO A
SUBSIDIARY "ALLOCATION" QUESTION.  THE UNION WAS CONCERNED THAT THE
QUESTION RECEIVE SOME ANSWER, BUT HAD NO PROPER INTEREST IN WHICH OF
THE POSSIBLE COST ALLOCATION PLANS WAS ADOPTED, SO LONG AS ANY SUCH
PLAN RAISED THE AMOUNT PROMISED.  ON THE OTHER HAND, IN THE PRESENT
CASE NO ONE HAS SUGGESTED THAT MARITIME COMMISSION REVIEW OF A
PARTICULAR METHOD OF COST ALLOCATION MAY PROPERLY REACH THE QUESTION
WHETHER THE OBLIGATION NECESSITATING THE ALLOCATION SHOULD HAVE BEEN
ENTERED INTO, OR THAT THE COMMISSION MAY REJECT AN ALLOCATION PLAN WHEN
THERE ARE NO PREFERABLE ALTERNATIVE ROUTES TO COLLECTION OF THE
NECESSARY AMOUNT.  REVIEW OF THE FAIRNESS AND PROPRIETY OF THE USES TO
WHICH THE TAX MONEY, ONCE COLLECTED, IS PUT.  WHEN THE COURT NOTES THAT
ONLY THE ASSESSMENT AGREEMENT MUST BE FILED AND EXAMINED, IT SEEMS
CLEAR THAT IT CONTEMPLATES A COMMISSION EXAMINATION STARTING FROM THE
PREMISE THAT THE OBLIGATION TO COLLECT THE MECH FUND WILL BE FULFILLED;
AT ISSUE WILL BE ONLY THE PROPRIETY OF THE CHOICE OF THE ROUTE TO THAT
OBJECTIVE. 

        II. 

WITH RESPECT TO THE SECS. 16 AND 17 ISSUES, I CONSIDER THAT THE
COMMISSION'S APPROACH TO THOSE QUESTIONS RESTED, AS INDEED THE COURT'S
OPINION NOW INTIMATES, UPON AN ERRONEOUS UNDERSTANDING OF THE
"ASSESSMENT AGREEMENT" NECESSITATING RECONSIDERATION OF THOSE MATTERS
ON REMAND OF THE CASE. 

THE AGREEMENT THAT WAS BEFORE THE COMMISSION WAS, SO FAR AS APPEARS,
QUITE UNLIKE ANY AGREEMENT THAT BODY HAD CONSIDERED BEFORE.  IT DEALT
NEITHER WITH A CHARGE FOR PARTICULARIZED SERVICES IN THE CARRYING,
HANDLING, OR STORAGE OF GOODS, NOR WITH HOW SUCH SERVICES WOULD BE
PROVIDED.  RATHER, THE AGREEMENT LEVIED A "TAX" ON ASSOCIATION MEMBERS,
A TAX WHICH (INSOFAR AS THE MODERNIZATION PROGRAM DID NOT DIRECTLY "PAY
ITS OWN WAY") WOULD BE PASSED ON TO MEMBERS' CUSTOMERS AND ULTIMATELY
TO THE PUBLIC.  THE TAX WOULD BE USED TO PAY FOR A GENERAL BENEFIT TO
THE SHIPPING INDUSTRY, BUT THE ALLOCATION OF THAT TAX BORE NO DIRECT
RELATIONSHIP TO BENEFITS RECEIVED BY CUSTOMERS.     THE COURT HOLDS
THAT IT WAS ERROR FOR THE COMMISSION TO REJECT CHALLENGES TO THIS
AGREEMENT UNDER SEC. 16 SIMPLY BECAUSE THERE WAS NO SHOWING THAT THE
TAX WAS DISCRIMINATORY AS BETWEEN COMPETITIVE CUSTOMERS.  IT DECLARES
THAT SUCH A RULE MAY BE SOUND IN CASES INVOLVING RATES FOR SEA CARRIAGE
OF GOODS BECAUSE OF THE "PARTICULARIZED ECONOMICS" RESULTING FROM THE
FINITE CAPACTIY OF SHIPS, BUT THAT IT IS NOT SOUND ELSEWHERE, INCLUDING
THIS CASE, FOR UNSPECIFIED REASONS.     ON THE SURFACE, IT MIGHT APPEAR
THAT THE ARGUMENT SHOULD BE THE OTHER WAY AROUND:  IT MAKES SOME SNESE
TO SPEAK OF AN "UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE" TO, SAY,
WATERMELONS OVER AUTOMOBILES WHEN THEY ARE "COMPETING" FOR A FINITE
AMOUNT OF SHIPPING SPACE; IT BECOMES MUCH MORE DIFFICULT TO FIND
ANYTHING THAT CAN BE CALLED A "PREFERENCE" BETWEEN SUCH PRODUCTS WITH
RESPECT TO ANY SERVICES THAT ARE AVAILABLE TO BOTH IN UNLIMITED
QUANTITIES. 

MY BROTHER DOUGLAS STATES THAT THE COMMISSION HAS CONSISTENTLY
ADHERED TO ITS INSISTENCE UPON A COMPETITIVE RELATIONSHIP BETWEEN THE
PRODUCT PREFERRED AND THE PRODUCT DISADVANTAGED, EXCEPT WHERE "THERE
ARE SERVICES THAT ARE NOT DEPENDENT UPON THE NATURE OF THE CARGO AND
THE VARIOUS CHARGES THEREFOR."  POST, AT 314, N. 30.  YET, IF EVER IT
WAS CLEAR THAT "THE NATURE OF THE (PRODUCTS)" WAS NOT THE BASIS FOR A
DIFFERENCE IN RATES, IT IS IN THIS CASE. 

THE TRUE SOLUTION OF THE MATTER, IT SEEMS TO ME, IS THAT IN EACH
SITUATION THE PROBLEM HAS BEEN TO DEVISE SOME WORKABLE BASIS FOR
DETERMINING WHETHER RATES ARE FAIR VIS-A-VIS OTHER RATES.  ITSIMPLY
WOULD NOT BE FEASIBLE, AS THE SECOND CIRCUIT HAS NOTED, /8/  TO ASSESS
THE FAIRNESS OF CHARGES FOR SHIPPING HEAVY INDUSTRIAL EQUIPMENT BY
COMPARISON WITH THE COST OF SHIPPING BANANAS.  THE NOTION OF A
"PREFERENCE" FOR BANANAS OVER HEAVY EQUIPMENT IS SIMPLY TOO ELUSIVE TO
BE IMPLEMENTED.  AT THE SAME TIME, WHEN THE SERVICE RENDERED IS, FOR
EXAMPLE, PROCURING INSURANCE OR ARRANGING FOR CARTAGE, THE NATURE OF
THE PRODUCT HAS VERY LITTLE TO DO WITH EITHER THE VALUE TO THE CUSTOMER
OF THE SERVICES RENDERED OR THE COST OF SUPPLYING THEM; IN SUCH CASES
THE COMMISSION HAS QUITE REASONABLY HELD THAT CHARGING DIFFERENT
CLASSES OF SHIPPERS DIFFERENT AMOUNTS FOR EQUIVALENT SERVICES MAY BE
PREFERENTIAL.  /9/ 

IN THE PRESENT CASE, THE PROBLEM BEFORE PMA WAS THE ALLOCATION OF A
PRE-SPECIFIED TOTAL COST AMONG ITS VARIOUS MEMBERS AND THEIR
CUSTOMERS.  SINCE THIS WAS VERY MUCH A CASE OF FIRST IMPRESSION, THE
COMMISSION WOULD HAVE DONE WELL TO GO BACK TO THE LANGUAGE OF SEC. 16,
WHICH PROSCRIBES ANY "UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE TO
ANY . . . DESCRIPTION OF TRAFFIC IN ANY RESPECT WHATSOEVER."  /10/
CERTAINLY, SINCE A "MODERNIZATION TAX" ON ANY ONE GROUP OF CUSTOMERS
LOWERED, BY AN EQUIVALENT AMOUNT, THE COST OF MODERNIZATION TO OTHERS
OBLIGATED TO PAY FOR IT, AN UNFAIR ALLOCATION OF THE BURDEN COULD
PROPERLY BE DESCRIBED AS A "PREFERENCE" BETWEEN THAT "DESCRIPTION OF
TRAFFIC" BEARING A HEAVY BURDEN AND THAT "DESCRIPTION OF TRAFFIC" WHOSE
BURDEN WAS CORRESPONDINGLY LIGHTENED. 

THE REAL DIFFICULTY IN THIS CASE IS TO FORMULATE A WORKABLE
DEFINITION OF WHETHER THE BURDENS HAVE BEEN "UNFAIRLY" ALLOCATED. 
OBVIOUSLY, AS THE DEBATES IN THE PMA INDICATE, THERE WAS NO "PERFECT"
WAY TO APPORTION THE COSTS.  ANY ANALYSIS OF THE PRESENT PROBLEM MUST
LEAVE ROOM FOR THE IMPLEMENTATION OF SOME UNIFORM, PRACTICAL, GENERAL
RULE OF ASSESSMENT EVEN THOUGH IT HAVE SOME FEATURES THAT ARE LESS
DESIRABLE THAN SOME ALTERNATIVE IMPERFECT RULE.  THE DIFFICULTY WITH
THE METHOD OF ASSESSMENT ADOPTED BY PMA IS THAT IT WAS NOT UNIFORM AND
GENERAL BUT MADE SPECIAL PROVISION FOR AUTOMOBILES.  THE FACT THAT ALL
AUTOMOBILES ARE TREATED ALIKE SHOULD NOT HAVE PREVENTED THE COMMISSION
FROM INQUIRING WHETHER SPECIAL TREATMENT FOR THIS CLASS OF GOODS WAS
NECESSARY UNDER THE CIRCUMSTANCES AND, IF SO, WHETHER THE SPECIAL RULE
ADOPTED WAS THE FAIREST THAT COULD BE DEVISED. 

THE COMMISSION'S INTERPRETATION OF SEC. 17 WAS ALSO ERRONEOUS.  THE
COMMISSION HELD THAT SINCE PETITIONER RECEIVED SUBSTANTIAL BENEFITS
FROM THE MODERNIZATION PROGRAM IT WOULD NOT MAKE MINUTE INQUIRY INTO
WHETHER PETITIONER'S BENEFITS PRECISELY CORRESPONDED TO THE COSTS
IMPOSED.  THE FIRST DIFFICULTY IS WITH THE CONCLUSION THAT PETITIONER
RECEIVED "SUBSTANTIAL BENEFITS."  PETITIONER APPARENTLY IS NOT IN A
POSITION TO PROFIT APPRECIABLY FROM MARITIME MODERNIZATION.  PETITIONER
WILL, OF COURSE, BENEFIT FROM ANY LESSENING OF LABOR DISPUTES IN
SHIPPING AND RELATED SERVICES; BUT THE ONLY DISRUPTIONS THAT ARE
AVOIDED BY THE LABOR AGREEMENT REACHED HERE ARE THOSE THAT WOULD
OTHERWISE HAVE RESULTED FROM THE EFFORTS OF OTHER SHIPPERS AND OF
MARITIME EMPLOYERS TO INSITUTE THE VERY MODERNIZATION PRACTICES THAT
WILL NOT BENEFIT PETITIONER.  IT MAY BE THAT THOSE WHO WILL DIRECTLY
BENEFIT FROM MODERNIZATION AND THOSE WHO WILL BENEFIT ONLY FROM
INCREASED STABILITY DURING THE COURT OF A MODERNIZATION PROGRAM IN
WHICH THEY HAVE NO INTEREST (AND WHICH OTHERS HAVE IMPOSED ON THEM)
SHOULD BOTH PAY PART OF THE COST OF THE MECH FUND.  HOWEVER, THE
EXISTENCE OF SUCH A CATEGORICAL DIFFERENCE BETWEEN THE BENEFITS
RECEIVED BY DIFFERENCE GROUPS SHOULD AT LEAST INVITE INQUIRY WHETHER
CHARGES ARE AS APPROPRIATELY PROPORTIONED AS WOULD BE FEASIBLE. 

IN FACT, THE TAX ASSESSED IS NOT "EQUAL" AS BETWEEN VOLKSWAGEN AND
OTHER SHIPPERS WHO WILL BENEFIT MORE.  THE CHARGE TO MTC PER VOLKSWAGEN
WAS FIGURED ON A DIFFERENT BASIS FROM THE ASSESSMENTS FOR HANDLING
OTHER PRODUCTS; THE FIGURE REACHED WAS A SUBSTANTIALLY HIGHER
PERCENTAGE OF EXISTING COSTS AND CHARGES; AND THE FIGURE WAS SO HIGH
THAT THE ADDITIONAL COST APPARENTLY COULD NOT BE ABSORBED AND DEBITED
AGAINST FUTURE SAVINGS FROM MODERNIZATION BUT HAD TO BE PASSED ON TO
THE CUSTOMER.  OF COURSE CHARGES NEED ONLY BE "REASONABLY" RELATED TO
BENEFITS, AND NOT PERFECTLY OR EXACTLY RELATED, EVANS COOPERAGE CO. V.
BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS, 6 F.M.B. 415, 418,
BUT IN THIS CASE INQUIRY CEASED BEFORE IT HAD REACHED EVEN THAT NEARER
POINT. 

FINDING NO DISAGREEMENT IN PRINCIPLE BETWEEN MYSELF AND THE COURT, I
JOIN THE COURT'S OPINION UPON THE PREMISES STATED IN THIS OPINION. 

/1/  61 STAT. 142, 29 U.S.C. 158(D). 

/2/  SECTION 6 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. 17,
PROVIDES THAT "(THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR
ARTICLE OF COMMERCE."  SECTION 15 OF THE SHIPPING ACT, 39 STAT. 733, 46
U.S.C. 814, PROVIDES THAT AGREEMENTS FILED AND APPROVED BY THE
COMMISSION "SHALL BE EXCEPTED FROM THE PROVISIONS OF SECTIONS 1-11 AND
15 OF TITLE 15 (ANTITRUST PROVISIONS) . . . 

/3/  OF COURSE, CONGRESS DID NOT, IN SEC. 15, REQUIRE "GOOD"
AGREEMENTS TO BE FILED AND EXEMPT BAD ONES.  NOR DID CONGRESS PROVIDE A
SPECIAL EXEMPTION FOR CASES IN WHICH IT WOULD CREATE A SPECIAL HARDSHIP
TO REQUIRE FILING OF AN AGREEMENT THAT WAS NOT FILED WHEN IT SHOULD
HAVE BEEN.  MY BROTHER DOUGLAS IS MAKING A MUCH MORE RELEVANT AND
SERIOUS POINT THAN THAT THE COURT'S DECISION WILL DO INCIDENTAL DAMAGE
TO A "GOOD" AGREEMENT. 

/4/  9 F.M.C.,AT 82. 

/5/  E.G., MINE WORKERS V. PENNINGTON, 381 U.S. 657; MEAT CUTTERS V.
JEWEL TEA, 381 U.S. 676; CF. KENNEDY V. LONG ISLAND R. CO., 310 F.2D
366, 372-374.  IN MINE WORKERS THE COURT SAID, "WE THINK IT BEYOND
QUESTION THAT A UNION MAY CONCLUDE A WAGE AGREEMENT WITH THE MULTI
EMPLOYER BARGAINING UNIT WITHOUT VIOLATING THE ANTITRUST LAWS . . . "
381 U.S.,AT 664.  IT SEEMS EQUALLY OBVIOUS THAT THE EMPLOYERS ARE NOT
VIOLATING THE ANTITRUST LAWS EITHER WHEN THEY CONFER ABOUT WAGE POLICY
PREPARATORY TO BARGAINING OR WHEN THEY SIGN AN AGREEMENT. 

/6/  THE FACT THAT THE FIGURE $2.35 WAS IN FACT ARITHMETICALLY
LARGER THAN MTC'S COMPUTED PROFIT PER VOLKSWAGEN ON THE ACCOUNTING
BASIS MTC USED IS OF COURSE NOT IN ITSELF CRITICAL.  IF MTC'S COMPUTED
PROFIT PER VEHICLE HAD BEEN $2.36, IT WOULD HAVE HAD NEVERTHELESS TO
MAKE UP THE $2.35 ADDITIONAL COST SOMEWHERE. 

/7/  THE FACT THAT THE "LABOR" AGREEMENT AND THE "ASSESSMENT"
AGREEMENT WERE ON DIFFERENT PIECES OF PAPER IS OF COURSE NOT CRITICAL. 
WHAT IS IMPORTANT IS THAT THE WHOLE PROCESS RAISED BOTH LABOR PROBLEMS
AND DISTINCT SHIPPING PROBLEMS.  IT WOULD NOT BE IMPOSSIBLE FOR THERE
TO BE A SINGLE AGREEMENT RAISING SOME PROBLEMS OF LABOR BOARD "CONCERN"
AND OTHER, SEPARATE PROBLEMS APPROPRIATE TO COMMISSION REVIEW. 

/8/  NEW YORK FOREIGN FREIGHT FORWARDERS AND BROKERS ASSN. V. FMC,
337 F.2D 289, 299. 

/9/ IBID.; SEE, E.G., INVESTIGATION OF FREE TIME PRACTICES-- PART OF
SAN DIEGO, 9 F.M.C. 525. 

/10/  46 U.S.C. 815. 

MR. JUSTICE FORTAS, CONCURRING IN THE JUDGMENT. 

I AGREE WITH THE JUDGMENT AND WITH PART I OF THE OPINION HEREIN.  I
DO NOT UNDERSTAND THAT THE COURT'S OPINION PURPORTS TO DETERMINE THE
EFFECT OF SECS. 16 AND 17, AND I BELIEVE THAT THE COURT CERTAINLY
SHOULD NOT DO SO.  I DO NOT JOIN PART II OF THE OPINION DEALING WITH
THESE SECTIONS. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I BELIEVE THE COURT HAS MISCONSTRUED SEC. 15 OF THE SHIPPING ACT,
1916; /1/  AND I FEAR THAT ITS ERRONEOUS CONSTRUCTION WILL CAUSE
SERIOUS DISRUPTION IN THE PROCESS OF COLLECTIVE BARGAINING IN THE
MARITIME INDUSTRY.  IF THE TARIFF EXACTED FROM PETITIONER IS
DISCRIMINATORY OR UNREASONABLE, SECS. 16 AND 17 OF THE SHIPPING ACT /2/
PROVIDE A REMEDY.  IF IT VIOLATES THE ANTITRUST LAWS, THERE IS ALSO A
REMEDY, AS I SHALL INDICATE.  BUT TO REQUIRE THE FUNDING PART OF
MARITIME COLLECTIVE BARGAINING AGREEMENTS TO RECEIVE PRIOR APPROVAL
FROM THE MARITIME COMMISSION IS TO USE A SLEDGE HAMMER TO FIX A WATCH. 
I CANNOT READ SEC. 15 SO AS TO ATTRIBUTE TO CONGRESS SUCH A HEAVY
HANDED MANAGEMENT OF SENSITIVE LABOR PROBLEMS. 

THE COLLECTIVE BARGAINING AGREEMENT INVOLVED IN THIS CASE, WITH ITS
MECHANIZATION AND MODERNIZATION FUND (MECH FUND), CANNOT BE EVALUATED
PROPERLY WITHOUT AN UNDERSTANDING OF MARITIME LABOR RELATIONS AND
TECHNOLOGICAL DEVELOPMENTS IN THE SHIPPING INDUSTRY. 

THE HISTORY OF MARITIME LABOR RELATIONS IN THIS COUNTRY HAS BEEN
PUNCTUATED WITH LENGTHY MAJOR STROKES AND CONTINUOUS MINOR
DISRUPTIONS.  /3/  THE MARITIME INDUSTRY HAS LONG BEEN FACED WITH
PROBLEMS OF INSTABILITY-- ECONOMIC AND MANAGERIAL.  EMPLOYMENT FOR
MARITIME WORKERS IS GENERALLY BOTH IRREGULAR AND INSECURE.  /4/  THAT
CONDITION LIES BEHIND THE LARGE NUMBER OF MAJOR STRIKES AND WORK
STOPPAGES ON OUR COASTS. 

BECAUSE THE SHIPPING INDUSTRY IS VITALLY IMPORTANT BOTH TO OUR
NATIONAL COMMERCE AND NATIONAL DEFENSE, THE FEDERAL GOVERNMENT HAS
MAINTAINED A SPECIAL INTEREST IN TRYING TO PROMOTE ITS GROWTH AND
STABILITY.  THE SHIPPING ACT, 1916, IS ONE EXAMPLE OF THIS CONCERN. 
/5/  WITH RESPECT TO MARITIME LABOR RELATIONS, HOWEVER, THE ACTIVITIES
OF THE FEDERAL GOVERNMENT WERE, UNTIL OUR ENTRY INTO WORLD WAR I,
PRIMARILY DEVOTED TO LAWS PROTECTING OR DISCIPLINING SEAMEN AS
INDIVIDUAL WORKERS.  THE WAR YEARS SAW THE GOVERNMENT ACTIVELY
ENCOURAGING COLLECTIVE BARGAINING IN THE MARITIME INDUSTRY, ITS EFFORTS
RESULTING BY 1920 IN A SIGNIFICANT EXPANSION OF COLLECTIVE BARGAINING. 
THERE FOLLOWED A GENERAL RETROGRESSION, WITH WAGES AND WORKING
CONDITIONS REACHING LOW LEVELS.  THAT CONDITION PREVAILED UNTIL THE
HIGHLY DISRUPTIVE AND VIOLENT PACIFIC COAST STRIKE OF 1934. 

THAT STRIKE WAS THE PRODUCT OF DEEP-SEATED GRIEVANCES OF MARITIME
EMPLOYEES REGARDING LOW WAGES AND POOR WORKING CONDITIONS.  /6/  THE
SITUATION ON THE ATLANTIC COAST WAS NOT MUCH BETTER.  ALTHOUGH AN
AGREEMENT WAS REACHED IN LATE 1934 FOR ATLANTIC COAST WORKERS, LABOR
RELATIONS REMAINED UNSTABLE AND WORK STOPPAGES WERE RAMPANT.  ON BOTH
COASTS, INTRO-UNION ANDINTER-UNION DISAGREEMENTS, COUPLED WITH EMPLOYER
UNION HOSTILITY, MADE AGREEMENT HIGHLY DIFFICULT.  QUICKIE STRIKES
DOTTED THE PORTS, AND ANOTHER GENERAL STRIKE FOLLOWED IN 1936.  ON THE
PACIFIC COAST, THE EMPLOYERS AND THE ILWU (WHICH HAD ACHIEVED
RECOGNITION AFTER THE 2934 STRIKE) WERE IN CONSTANT CONFLICT THROUGH
1948, WHEN STILL ANOTHER GENERAL STRIKE ERUPTED.  THIS PERIOD, FROM
1934 TO 1948, HAS BEEN APTLY DESCRIBED AS SOMETHING LIKE "CLASS
WARFARE."  /7/ 

     "THE ILWU (THEN A PART OF THE AFL INTERNATIONAL LONGSHOREMEN'S

  ASSOCIATION) GAINED FORMAL EMPLOYER REOCGNITION AS A RESULT OF

  THE GENERAL STRIKE OF 1934, WHICH FOLLOWED YEARS OF EXPLOITATION

  AND ABUSE OF LONGSHOREMEN BY THEIR EMPLOYERS.  THE BITTERNESS

WHICH HAD CHARACTERIZED THE INDUSTRY CARRIED OVER INTO THE

  SUBSEQUENT EMPLOYER-UNION RELATIONSHIP.  THE EMPLOYERS DID THEIR

  BEST TO BREAK THE UNION, AND THE UNION RETALIATED JUST AS

  MILITANTLY.  THE YEARS WHICH FOLLOWED WERE AMONG THE STORMIEST IN

  U.S. LABOR HISTORY.  BETWEEN 1934 AND 1948, THE WEST COAST HAD

  OVER 20 MAJOR PORT STRIKES, MORE THAN 300 DAYS OF COASTWIDE

  STRIKES, ABOUT 1,300 LOCAL 'JOB ACTION' STRIKES, AND ABOUT 250

  ARBITRATION AWARDS."  /8/ 

DURING THE STORMY 1930'S, THE FEDERAL GOVERNMENT WAS GREATLY
EXPANDING ITS ROLE IN LABOR RELATIONS.  THE NIRA AND NLRA GREATLY
REVIVED UNIONISM AMONG BOTH SEAMEN AND LONGSHOREMEN IN ADDITION TO
WORKERS IN OTHER INDUSTRIES.  THOSE ACTS GUARANTEED THE RIGHT OF
COLLECTIVE BARGAINING AND OFFERED A MEANS FOR RECOGNITION OF UNIONS;
THE UNIONS GAINED MEMBERS AND STRENGTH.  AND WITH STRONGER UNIONS,
COLLECTIVE BARGAINING BECAME MORE WIDESPREAD.  BUT THE EXPLOSIVE
SITUATION IN THE MARITIME INDUSTRY WAS NOT SOLVED BY THESE GENERAL
ENACTMENTS, AND CONGRESS PASSED A SERIES OF LAWS TO DEAL WITH THE LABOR
PROBLEMS IN THAT INDUSTRY.  FIRST WAS THE MERCHANT MARINE ACT, 1936, 49
STAT. 1985, CREATING A UNITED STATES MARITIME COMMISSION TO INVESTIGATE
CONDITIONS OF SEAMEN ON SHIPS AND TO DETERMINE MINIMUM WAGE SCALES AND
WORKING CONDITIONS ON VESSELS THAT WERE RECEIVING GOVERNMENT
SUBSIDIES.  DESPITE THE 1936 ACT, LABOR RELATIONS DID NOT IMPROVE
SIGNIFICANTLY; AND CONGRESS IN 1938 AMENDED THE ACT, CREATING A
MARITIME LABOR BOARD (MLB) WITH THE DUTY OF ENCOURAGING COLLECTIVE
BARGAINING AND ASSISTING IN THE PEACEFUL SETTLEMENT OF LABOR DISPUTES
THROUGH MEDIATION.  A PROVISION OF THE 1938 AMENDMENT, SEC. 1005, 52
STAT. 967, REQUIRED ALL MARITIME EMPLOYERS TO FILE WITH THE MLB WITHIN
30 DAYS A COPY OF EVERY CONTRACT WITHANY GROUP OF ITS EMPLOYEES
COVERING WAGES, HOURS, RULES, AND WORKING CONDITIONS.  ANY NEW CONTRACT
OR CHANGE IN AN EXISTING CONTRACT ALSO HAD TO BE FILED WITH THE BOARD. 
THE CONTRACTS DID NOT REQUIRE APPROVAL BY THE BOARD, BUT WERE TO BE
USED TO ASSIST THE BOARD IN ITS MEDIATION ACTIVITIES AND IN ITS
PROMOTION OF PEACEFUL SETTLEMENT OF LABOR DISPUTES.  /9/ 

THE BOARD WAS INSTRUCTED IN THE 1938 ACT TO SUBMIT TO CONGRESS BY
1940 ITS RECOMMENDATIONS FOR ESTABLISHING A PERMANENT FEDERAL MARITIME
LABOR POLICY ENSURING STABLE LABOR RELATIONS.  THE BOARD IN ITS 1940
REPORT CONCLUDED THAT CONDITIONS IN THE INDUSTRY WERE STILL UNEASY, AND
RECOMMENDED A PERMANENT FEDERAL BODY WITH WIDE JURISDICTION OVER
QUESTIONS OF MARITIME LABOR-- INCLUDING REPRESENTATION /10/  AND
SETTLEMENT DISPUTES.  THE 1938 ACT PROVIDED THAT THE BOARD WAS TO BE
DISCONTINUED IN 1941; BUT IN 1940 CONGRESS EXTENDED IT LIFE UNTIL MID
1942 TO PERMIT FURTHER STUDIES BY THE BOARD AND CONGRESS.  NOTHING MORE
WAS DONE UNTIL 1955 WHEN CONGRESS AGAIN TURNED ITS ATTENTION
SPECIFICALLY TO THE PROBLEMS OF MARITIME LABOR RELATIONS.  /11/  IN THE
MEANTIME, THE MLB HAD EXPIRED.  ALTHOUGH SEVERAL BILLS WERE INTRODUCED
PROVIDING FOR SPECIALIZED FEDERAL CONTROL OVER MARITIME LABOR
RELATIONS, NO SPECIAL MACHINERY WAS ESTABLISHED; AND THE MARITIME
INDUSTRY REMAINS SUBJECT TO THE VARIOUS PROVISIONS OF FEDERAL LABOR
LAWS.  /12/ 

IN 1948 ANOTHER GENERAL MARITIME STRIKE ROCKED THE PACIFIC COAST. 
FOLLOWING THAT STRIKE, WHICH LASTED ABOUT 100 DAYS, THERE WAS A "PERIOD
OF RELATIVE CALM."  /13/  THE 1948 STRIKE HAD LED TO A CHANGE IN
EMPLOYER LEADERSHIP, A LESS HOSTILE ATTITUDE ON THE PART OF THE UNION
LEADERSHIP, AND A CONSEQUENT LESSENING OF TENSION ALONG THE PACIFIC
COAST.  BOTH SIDES RECOGNIZED THAT THE REDUCTION OF STRIFE WAS
DESIRABLE SINCE A SUBSTANTIAL AMOUNT OF TRAFFIC HAD BEEN DIVERTED FROM
THE PACIFIC COAST TO OTHER PORTS OR TO OTHER MEANS OF TRANSPORTATION ON
ACCOUNT OF CHRONIC MARITIME LABOR DIFFICULTIES AND WORK STOPPAGES.  BUT
DESPITE THE REDUCTION IN HOSTILITY BETWEEN LABOR AND MANAGEMENT,
SOLUTIONS TO PROBLEMS WERE NOT READILY FORTHCOMING.  BUSINESS WAS BAD
FOR THE SHIPPING COMPANIES-- FOREIGH COMPETITORS HAD CUT HEAVILY INTO
THE MARKET, AND A DECLINE IN BUSINESS MEANT LESS WORK FOR BOTH SEAMEN
AND LONGSHOREMENT.  MODERNIZATION WAS SORELY NEEDED, BUT IT WAS ALSO
GREATLY FEARED, FOR MECHANIZATION WOULD CUT OUT JOBS.  BUT WITHOUT
IMPROVED TECHNIQUES AND FACILITIES, THE EMPLOYERS COULD NOT REGAIN A
STRONG COMPETITIVE POSITION.  /14/  IN ADDITION TO LACK OF MODERN
EQUIPMENT, EMPLOYERS WERE FURTHER HAMPERED BY HIGHLY RESTRICTIVE WORK
RULES THAT HAD BEEN IN EFFECT SIN,E THE 1930'S, SUCH AS MULTIPLE
HANDLING, /15/ SLING-LOAD WEIGHT, /16/  AND GANG-SIZE RESTRICTIONS. 

IT IS ONLY AGAINST THIS BACKGROUND OF CHRONIC STRIKES AND
RESTRICTIVE LABOR PRACTICES THAT THE TREMENDOUS IMPACT OF THE MECH FUND
CAN BE APPRECIATED.  THAT WAS THE HEART OF THE 1960-1961 SETTLEMENT. 
AS NOTED BY ONE COMMENTATOR INTIMATELY ACQUAINTED WITH THE NEGOTIATIONS
OF THE PARTIES, "(THIS AGREEMENT DID NOT SPRING FULLBLOWN FROM THE BROW
OF ZEUS, OR FROM THE BRAIN OF BRIDGES."  /18/  RATHER, "(THE AGREEMENT,
WHICH WAS HAMMERED OUT IN 5 MONTHS OF NEGOTIATIONS ENDING IN OCTOBER
1960, CULMINATED 4 YEARS OF DISCUSSION BETWEEN THE PMA AND THE ILWU." 
/19/ 

EARNEST BARGAINING BEGAN IN 1957.  PMA WANTED TO OBTAIN A GUARANTEE
FROM THE ILWU THAT STRIKES AND WORK STOPPAGES WOULD NOT RESULT FROM THE
INTRODUCTION AND USE OF MECHANIZATION AND OTHER LABOR-SAVING DEVICES. 
IN RETURN, THE UNION WANTED ITS WORKERS TO SHARE IN THE COST SAVINGS
RESULTING FROM MODERNIZATION, AND DESIRED ASSURANCES THAT CHANGES IN
WORK METHODS WOULD NEITHER CREATE UNSAFE WORKING CONDITIONS NOR
ACCELERATE THE PRODUCTIVITY REQUIRED OF INDIVIDUAL WORKERS.  AFTER TWO
YEARS OF PRELIMINARY NEGOTIATIONS, AN AGREEMENT WAS MADE IN AUGUST 1959
WHICH PROVIDED FOR A FURTHER STUDY OF THE PROBLEMS OF MECHANIZATION AND
FOR THE ESTABLISHMENT BY PMA OF A FUND OF $1,500,000 FOR THE BENEFIT OF
UNION WORKERS.  /20/ 

NEGOTIATIONS BEGINNING IN MAY 1960 LED TO A "MEMORANDUM OF AGREEMENT
ON MECHANIZATION AND MODERNIZATION," CONCLUDED IN OCTOBER 1960, AND
PROVIDING FOR A $29,000,000 TRUST FUND TO BE FINANCED BY PMA.  THE FUND
WAS TO CONSIST OF THE $1,500,000 DUE UNDER THE 1959 AGREEMENT PLUS
ANOTHER $27,500,000 TO BE ACCUMULATED OVER A FIVE-AND-ONE-HALF-YEAR
PERIOD AT THE RATE OF $5,000,000 PER YEAR.  THE FUND WAS TO BE USED TO
PROTECT LONGSHOREMENT AND MARINE CLERKS FROM THE CONSEQUENCES OF
REDUCED EMPLOYMENT CAUSED BY MECHANIZATION.  THE AGREEMENT WAS TO ENTER
INTO FORCE UPON APPROVAL BY THE MEMBERS OF PMA AND THE ILWU, AND WAS TO
EXPIRE ON JULY 1, 1966.  /21/  THE AGREEMENT ALSO PROVIDED MANAGEMENT
WITH THE RELATIVELY FREE REIN IT HAD SOUGHT TO ELIMINATE RESTRICTIVE
WORK PRACTICES.  THE FORMER PRACTICE OF MULTIPLE HANDLING WAS
ELIMINATED, AND THE MINIMUM SIZE OF A GANG FOR LOADING AND UNLOADING
OPERATIONS WAS SPECIFIED.  THE SLING-LOAD LIMIT FOR LOADS WAS TO REMAIN
UNCHANGED IF THE MANNER OF OPERATION WAS THE SAME AS WHEN THE LIMIT WAS
FIRST NEGOTIATED; OTHERWISE, THE EMPLOYER COULD SET THE WEIGHT,
PROVIDED THAT HE ACTED "WITHIN SAFE AND PRACTICAL LIMITS AND WITHOUT
SPEED UP OF THE INDIVIDUAL." 

THUS, THE AGREEMENT SATISFIED THE DESIRE OF EMPLOYERS TO MODERNIZE
AND ELIMINATE OUTMODED AND RESTRICTIVE WORK RULES, AND AT THE SAME TIME
PROVIDED A MEASURE OF SECURITY FOR THE WORKERS WHOSE JOBS WOULD BE
AFFECTED BY THE USE OF THE NEW DEVICES.  THE AGREEMENT, HOWEVER, LEFT
OPEN THE QUESTION OF HOW THE EMPLOYERS' CONTRIBUTIONS OF $5,000,000 A
YEAR WOULD BE RAISED.  THE QUESTION OF A PROPER METHOD OF ASSESSMENT
HAD BEEN DISCUSSED BY THE UNION AND MANAGEMENT DURING THE PROCEDING
NEGOTIATIONS; SEVERAL SUGGESTIONS WERE OFFERED BY THE PARTIES.  BUT IN
RETURN FOR A COMMITMENT FROM THE PMA MEMBERS OBLIGATING THEMSELVES
INDIVIDUALLY AND COLLECTIVELY TO THE PAYMENT OF THE FUND, THE ILWU
AGREED TO PERMIT PMA TO ESTABLISH THE METHOD OF PAYMENT. 

PMA THEN SET UP A WORK IMPROVEMENT FUND COMMITTEE TO DETERMINE THE
BEST METHOD OF RAISING THE MONEY.  THAT COMMITTEE CONSIDERED VARIOUS
BASES FOR ASSESSING CONTRIBUTIONS-- MAN-HOURS OF EACH EMPLOYER, CARGO
TONNAGE, A COMBINATION OF THE TWO, CARGO TONNAGE MOVING IN CONTAINERS,
MEASUREMENT OF IMPROVEMENTS IN LONGSHORE PRODUCTIVIITY.  THE COMMITTEE
MAJORITY RECOMMENDED A CARGO TONNAGE BASIS; ITS REASON FOR DOING SO
WERE SUMMARIZED BY THE COURT BELOW AS FOLLOWS: 

     "THE COMMITTEE RECOMMENDED A FORMULA BASED ON CARGO TONNAGE AS

  A 'ROUGH-AND-READY' WAY TO DIVIDE THE COST, ADMITTEDLY LACKING

  THE REFINEMENT OF THE PRODUCTIVITY MEASUREMENT METHOD BUT ALSO

  LACKING ITS INFEASIBILITY AND AVOIDING THE INEQUITY OF THE

  MAN-HOUR METHOD WHEREBY CONTRIBUTIONS ARE IN INVERSE PROPORTION

  TO BENEFITS RECEIVED.  IT CONSIDERED THAT CARGO VOLUME THOUGH NOT

  NECESSARILY PROPORTIONAL WAS SOME INDICATOR OF STEVEDORING

  ACTIVITIES AND THAT ADMINISTRATIVE SIMPLICITY WAS A CARDINAL

  CONSIDERATION. 

     "THE COMMITTEE RECOGNIZED FURTHER THAT THERE WERE ALSO

  OBJECTIONABLE FEATURE OF THE TONNAGE FORMULA BUT CONSIDERED THESE

  TO BE LESS WEIGHTY THAN THE OBJECTIONS INHERING IN THE OTHER

  FORMULAE.  IT RECOMMENDED THAT THE FORMULA BE REVIEWED TO PREVENT

  THE CONTINUATION OF ANY HARDSHIP OR INEQUITY THAT MIGHT

  DEVELOP."  /22/ 

IN RECOMMENDING THE TONNAGE FORMULA, THE COMMITTEE NOTED THAT THE
SAME SYSTEM WAS USED FOR ASSESSING A PART OF PMA DUES.  IT HAD ALSO
BEEN THEPRACTICE OF PMA TO USE A TONNAGE FORMULA FOR ASSESSMENTS
ALLOCATING OTHER TYPES OF LABOR COSTS, SUCH AS JOINT MAINTENANCE OF
DISPATCH HALLS AND THE PAYMENT OF ARBITARTORS' SALARIES.  /23/  IN
FACT, IT APPEARS THAT THE ILWU HAD ITSELF PROPOSED A TONNAGE FORMULA
DURING THE NEGOTIATIONS AND ASKED THAT IT BE INCORPORATED INTO THE
COLLECTIVE BARGAINING AGREEMENT; BUT PMA RESISTED THIS APPROACH,
APPARENTLY WISHING TO KEEP ITS OPTIONS OPEN AND FEARING THAT
INCORPORATION IN THE AGREEMENT MIGHT TEND TO COMMIT THE PMA TO A FIXED
FORMULA THAT WOULD ALSO BE INCLUDED IN A FUTURE AGREEMENT.  THE TONNAGE
FORMULA RECOMMENDED BY THE COMMITTEE WAS SUBSEQUENTLY ADOPTED BY THE
PMA MEMBERSHIP. 

IT WAS SPECIFICALLY PROVIDED IN THE AGREEMENT THAT EACH EMPLOYER
WOULD ABIDE BY THE FORMULA ADOPTED BY THE ASSOCIATION; AND THIS PROMISE
TO COMPLY WAS THE QUID PRO QUO FOR THE UNION'S AGREEMENT NOT TO WRITE
ANY PARTICULAR FORMULA INTO THE CONTRACT OR TAKE PART IN THE
DETERMINATION OF THE METHOD OF ASSESSMENT.  /24/  THUS THE PMA DECISION
ON THE METHOD OF ASSESSMENT WAS PART AND PARCEL OF THE COLLECTIVE
BARGAINING AGREEMENT.  INDEED, THE MODERNIZATION PLAN WAS THE HEART OF
THAT AGREEMENT, AND THE SUBSEQUENT ASSESSMENT PLAN MERELY IMPLEMENTED
THE EMPLOYERS' DUTY UNDER THE COLLECTIVE BARGAINING AGREEMENT TO
ESTABLISH A FUND SPECIFICALLY MARKED TO PROTECT MARITIME WORKERS
AGAINST THE FAR-REACHING EFFECTS OF MODERNIZATION. 

PMA TREATED THE FINANCING OF THE FUND AS AN INTEGRAL PART OF THE
COLLECTIVE BARGAINING PROCESS.  THE COMMITTEE ESTABLISHED BY PMA TO
RECOMMEND A FUNDING FORMULA WAS APPOINTED BY THE NEGOTIATING COMMITTEE
WHICH WORKED ON THE COLLECTIVE BARGAINING AGREEMENT; /25/  AND THE PMA
MEMBERSHIP RATIFIED BOTH THE COLLECTIVE BARGAINING AGREEMENT AND THE
FUNDING FORMULA AT THE SAME TIME. 

IT IS NOT, I SUBMIT, OSSIBLE, AS A PRACTICAL MATTER, TO SEPARATE THE
MECH FUND PROVISION IN THE COLLECTIVE BARGAINING AGREEMENT FROM THE
SUBSEQUENT DECISION OF THE PMA MEMBERSHIP CONCER-ING HOW THE FUND WAS
TO BE RAISED.  A COLLECTIVE BARGAINING AGREEMENT IS THE PRODUCT OF
NEGOTIATIONS.  HOW CAN NEGOTIATORS SITTING AT A TABLE ARRIVE AT AN
AGREEMENT IF THEY KNOW THAT A MAJOR PART OF IT DEPENDS ON THE APPROVAL
OF THE FEDERAL MARITIME COMMISSION?  HOW MANY MONTHS-- OR YEARS-- WILL
IT TAKE TO GET APPROVAL?  WHAT WILL HAPPEN MEANWHILE?  WILL NOT THE
IMPOSITION OF THAT KIND OF ADMINISTRATIVE SUPERVISION BRING AN END TO,
OR AT LEAST PARTIALLY PARALYZE, COLLECTIVE BARGAINING? 

THE MECH FUND IS A LABOR EXPENSE.  INCREASED LABOR COSTS NORMALLY
ARE PASSED ON AT LEAST IN PART BY INCREASED PRICES.  WHEN THE AUTO
WORKERS WERE RECENTLY NEGOTIATING WITH GENERAL MOTORS FOR A GUARANTEED
ANNUAL WAGE, WHAT WOULD HAVE BEEN THE CONSEQUENCE IF NOTHING COULD HAVE
BEEN DECIDED UNTIL A FEDERAL AGENCY HAD DETERMINED WHETHER THE IMPACT
ON PRICES OR ON THE ECONOMY WAS PROPER?  I CAN IMAGINE A REGIME OF
TOTAL CONTROLS WHERE SUCH PRIOR APPROVAL WOULD BE REQUIRED.  BUT WE
HAVE NO SUCH REGIME AT PRESENT; AND I CAN SEE NO POSSIBLE JUSTIFICATION
FOR A JUDICIALLY CREATED ONE IN THE EXPLOSIVE MARITIME FIELD.  TO M EET
THE COSTS INCREASED BY ANY COLLECTIVE BARGAINING AGREEMENT, A COMPANY
MIGHT HAVE TO RAISE ITS PRICES AND PASS AT LEAST PART OF THE ADDED COST
ON TO THE CONSUMER.  BUT THIS HAPPENS ALL THE TIME IN THE MARITIME
INDUSTRY, AS WELL AS IN OTHER INDUSTRIES, AND DOES NOT CONSTITUTE RATE
FIXING OF THE TYPE AT WHICH THE SHIPPING ACT IS AIMED.  THERE IS
NOTHING IN THELEGISLATIVE HISTORY OF THE SHIPPING ACT WHICH SUGGESTS
THAT SEC. 15 GIVES THE FMC THE POWER OR LICENSE TO OVERSEE LABOR
NEGOTIATIONS.  BUT THAT IS THE EFFECT OF WHAT THE COURT DOES TODAY WHEN
IT DECIDES THAT THE EMPLOYERS' AGREEMENT HERE MUST BE SUBMITTED TO THAT
BODY FOR APPROVAL. 

MY BROTHER HARLAN SUGGESTS THAT THE ASSESSMENT AGREEMENT CAN BE
DISTINGUISHED FROM THE COLLECTIVE BARGAINING AGREEMENT BECAUSE "(THE
UNION WAS CONCERNED THAT THE QUESTION (OF HOW THE COST BURDEN OF THE
FUND WAS TO BE ALLOCATED) RECEIVE SOME ANSWER, BUT HAD NO PROPER
INTEREST IN WHICH OF THE POSSIBLE COST ALLOCATION PLANS WAS ADOPTED . .
. "  (ANTE, AT 290).  BUT TO ARGUE THAT THE UNION DOES NOT CARE FROM
WHAT SOURCE THE PMA GETS THE MONEY FOR THE FUND IS BOTH QUESTIONABLE
/26/  AND IRRELEVANT, FOR SUCH AN APPROACH IGNORES THE FACT THAT THERE
ARE TWO PARTIES TO A COLLECTIVE BARGAINING AGREEMENT.  THE PMA MEMBERS
DO CARE HOW THEY WILL BE ASSESSED $27,500,000 FOR A FUND DEDICATED TO
THE BENEFIT OF THEIR EMPLOYEES.  THE MECH FUND WAS THE KEY PROVISION IN
THE AGREEMENT, AND WITHOUT IT THERE MAY WELL HAVE BEEN NO AGREEMENT AT
ALL.  THE PARTIES SHOULD NOT BE EXPECTED TO WAIT TO SETTLE THEIR
DIFFERENCES WHILE THE FMC DECIDES UNDER SEC. 15 WHETHER THE EMPLOYERS'
FUNDING PLAN IS IN THEPUBLIC INTEREST.  SPEEDY RESOLUTION OF LABOR
DISPUTES BY COLLECTIVE BARGAINING HAS BEEN THE CONSISTENT FEDERAL
POLICY. 

THE SOLICITOR GENERAL WOULD HAVEUS ATOMIZE THE COLLECTIVE BARGAINING
AGREEMENT AND TREAT THE SCHEDULE OF CHARGES THAT CREATE THE FUND AS A
MERE "SIDE AGREEMENT."  BUT WITHOUT THE SO-CALLED "SIDE AGREEMENT"
THERE WOULD HAVE BEEN NO COLLECTIVE BARGAINING AGREEMENT.  AND IT MUST
BE REMEMBERED THAT SEC. 15, IF APPLICABLE, REQUIRES THAT AN AGREEMENT
BE FILED "IMMEDIATELY WITH THE COMMISSION."  WHAT WOULD HAVE TO BE
FILED IS THE ENTIRE AGREEMENT, NOT MERELY THE PROVISO TO WHICH
PETITIONER NOW OBJECTS.  THE COMMISSION THEN MUST GIVE NOTICE AND A
HEARING AND "DISAPPROVE, CANCEL OR MODIFY" THE AGREEMENT.  WHICH
PERSONS WOULD BE ENTITLED TO PARTICIPATE IN THE HEARING PRESENTS AN
INITIAL PROBLEM.  /27/  THEREAFTER, WHAT PROVISIONS WOULD BECOME THE
TARGET IN THE HEARING IS CONJECTURAL.  THE TARGET MIGHT BE SMALL OR
LARGE.  BUT CERTAINLY NO COLLECTIVE BARGAINING AGREEMENT COULD BECOME
OPERATIVE UNTIL ITS UNDERPINNING-- THE FUND-- WAS THOROUGHLY
LITIGATED.  MEANWHILE YEARS MIGHT PASS AS THE CONTEST WOUND ITS WAY
SLOWLY THROUGH VARIOUS TRIBUNALS AND THE LABOR PROBLEMS CONTINUED TO
FESTER.     THIS IS WHAT MY BROTHER HARLAN OVERLOOKS WHEN HE SUGGESTS
THAT ADVANCE APPROVAL OF "LABOR-RELATED AGREEMENTS" MIGHT BE MORE
DESIRABLE FROM THE STANDPOINT OF FACILITATING COLLECTIVE BARGAINING
THAN LEAVING OPEN THE QUESTION WHETHER THE AGREEMENT, OR PARTS OF IT,
WOULD BE SUBJECT TO THE ANTITRUST LAWS.  PRESUMABLY, HE MEANS THAT
LEGAL UNCERTAINTY CONCERNING THE POSSIBLE VULNERABILITY OF CERTAIN
PROVISIONS OF AN AGREEMENT TO ATTACK UNDER THE ANTITRUST LAWS MIGHT
STALL NEGOTIATIONS OR LEAD SOME ASSOCIATION MEMBERS TO DECLINE TO
COOPERATE IN CARRYING OUT THE AGREEMENT, FEARING A TREBLE-DAMAGE
ACTION.  TO BE SURE, THE PARTIES TO A COLLECTIVE BARGAINING PACT MUST
FRAME THEIR AGREEMENT TO FIT WITHIN THE STANDARDS OF THE ANTITRUST LAWS
OR ANY OTHER GOVERNING STATUTES.  BUT WITHOUT A REQUIREMENT OF ADVANCE
APPROVAL OF THE TERMS OF THE AGREEMENT, THEY REMAIN FREE TO BARGAIN
SPEEDILY.  FRUSTRATION OF THE COLLECTIVE BARGAINING PROCESS COMES NOT
SO MUCH FROM THE POSSIBILITY THAT ONE OR MORE PROVISIONS IN A
COLLECTIVE BARGAINING PACT MIGHT BE FOUND ILLEGAL AT SOME FUTURE DATE
UNDER THE ANTITTURST LAWS, OR OTHER STATUTES SUCH AS SECS. 16 AND 17 OF
THE SHIPPING ACT, BUT RATHER FROM THE UNDUE AND POSSIBLY LENGTHY
FREEZING OR STULTIFICATION OF SOLUTIONS TO TROUBLESOME LABOR PROBLEMS
WHILE AN INTIMATE PART OF THE PROPOSED AGREEMENT IS SENT TO THE FMC FOR
APPROVAL. 

WITH ALL RESPECT, THE COURT'S APPROACH IN REQUIRING THE FUNDING PLAN
TO BE SUBMITTED TO THE FMC FOR APPROVAL UNDER SEC. 15 OF THE SHIPPING
ACT WILL FRUSTRATE LEGITIMATE AND SPEEDY COLLECTIVE BARGAINING IN THE
MARITIME INDUSTRY.  NEITHER THE COURT NOR MY BROTHER HARLAN IS ABLE TO
REFER TO ANY LEGISLATIVE HISTORY WHICH INDICATES THAT CONGRESS
CONSIDERED THE SHIPPING ACT TO REQUIRE THE FILING OF LABOR AGREEMENTS
OR PROVISIONS OF THOSE AGREEMENTS UNDER SEC. 15.  /28/  THE COURT
INSTEAD TAKES THE APPROACH THAT THE SHIPPING ACT PROVISIONS WERE
PURPOSELY DRAWN BROAD ENOUGH TO ENCOMPASS ASSOCIATION AGREEMENTS WHICH
HAVE MORE THAN A DE MINIMIS EFFECT ON COMMERCE.  THIS RATIONALE WOULD
REQUIRE THE FILING OF ANY COLLECTIVE BARGAINING PROVISION AGREED TO BY
PMA MEMBERS THAT RAISED LABOR COSTS BEYOND THE POINT AT WHICH PMA
MEMBERS COULD BE EXPECTED TO ABSORB THOSE COSTS WIHOUT RAISING PRICES
OR CHARGES. 

THE COURT MAY WELL MEAN, AS MY BROTHER HARLAN SUGGESTS, THAT THE
"OBLIGATION TO COLLECT THE MECH FUND," CONTAINED IN THE COLLECTIVE
BARGAINING AGREEMENT, IS NOT TO BE EXAMINED BY THE COMMISSION ON
REMAND, BUT RATHER THE QUESTION IS TO BE LIMITED TO THE "PROPRIETY OF
THE CHOICE OF THE ROUTE TO THAT OBJECTIVE."  BUT THAT MISSES THE MARK. 
MY POINT IS THAT THE LATTER QUESTION IS AS MUCH A PART OF THE
BARGAINING PROCESS AS THE FORMER.  COMMISSION CONTROL OVER EITHER
QUESTION RUNS SUBSTANTIAL RISK OF FRUSTRATING AGREEMENT BY THE PARTIES
ON BOTH ISSUES, NOT TO MENTION OTHER MATTERS IN THE COLLECTIVE
BARGAINING PACT.  FOR EXAMPLE, IF AN ALLOCATION FORMULA SATISFACTORY TO
PMA MEMBERS AND TO THE COMMISSION COULD NOT BE DEVISED, THE FUND MIGHT
NEVER BE ESTABLISHED, REQUIRNG PERHAPS OTHER CHANGES IN THE AGREEMENT,
SUCH AS HIGHER WAGES OR CONTINUANCE OF SOME OR ALL OF THE RESTRICTIVE
WORK RULES. 

IF THE PRESENT PRACTICE IS AN ABUSE, THERE IS AN EXISTING REMEDY. 
THIS AGREEMENT BETWEEN EMPLOYERS COULD OF COURSE BE CHALLENGED IN THE
COURTS AS VIOLATIVE OF THE ANTITRUST LAWS.  /29/  MOREOVER, SECS. 16
AND 17 OF THE SHIPPING ACT AFFORD PROTECTION TO FOREIGN COMMERCE IN
CASES OF UNDUE DISCRIMINATION OR UNREASONABLE PRACTICES AFFECTING THAT
COMMERCE.  WHILE I CANNOT SAY THAT THE COMMISSION ERRED IN FINDING NO
VIOLATION OF SEC. 16, I CONCUR IN A REMAND TO THE COMMISSION FOR
FURTHER FINDINGS UNDER SEC. 17.  /30/  IF THE FINDING IS FOR PETITION,
THERE MAY BE AN INCIDENTAL AND AFTER-THE-FACT EFFECT ON THE PROVISIONS
OF THE COLLECTIVE BARGAINING AGREEMENT.  BUT IT WILL NOT PRODUCE THE
PARALYZING EFFECT WHICH WILL FOLLOW WHEN PRIOR APPROVAL IS REQUIRED. 
THE APPLICATION OF SECS. 16 AND 17 IN PARTICULAR INSTANCES CAN INDEED
REALISTICALLY BE COMPARED WITH ENFORCEMENT OF FEDERAL ANTITRUST LAWS
DIRECTED AGAINST SPECIFIC PRACTICES. 

/1/  SECTION 15 PROVIDES, IN RELEVANT PART, THAT EVERY PERSON
SUBJECT TO THE SHIPPING ACT "SHALL FILE IMMEDIATELY WITH THE
COMMISSION" EVERY AGREEMENT WITH ANOTHER PERSON SUBJECT TO THE ACT:
"FIXING OR REGULATING TRANSPORTATION RATES OR FARES; GIVING OR
RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER SPECIAL PRIVILEGES OR
ADVANTAGES; CONTROLLING, REGULATING, PRE VENTING, OR DESTROYING
COMPETITION; POOLING OR APPORTIONING EARNINGS, LOSSES, OR TRAFFIC;
ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE NUMBER AND
CHARACTER OF SAILINGS BETWEEN PORTS; LIMITING OR REGULATING IN ANY WAY
THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO BE CARRIER;
OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL, OR
COOPERATIVE WORKING AGREEMENT."  46 U.S.C. 814 (SEC. 15). 

THE COMMISSION IS INSTRUCTED IN SEC. 15 TO "DISAPPROVE, CANCEL OR
MODIFY ANY AGREEMENT" WHICH IT FINDS, AFTER NOTICE AND HEARING, TO BE
"UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN CARRIERS, SHIPPERS,
EXPORTERS, IMPORTERS, OR PORTS, OR BETWEEN EXPORTERS FROM THE UNITED
STATES AND THEIR FOREIGN COMPETITORS, OR TO OPERATE TO THE DETRIMENT OF
THE COMMERCE OF THE UNITED STATES, OR TO THE CONTRARY TO THE PUBLIC
INTEREST, OR TO BE IN VIOLATION OF THIS CHAPTER . . . " 

ANY AGREEMENT WHICH IS NOT APPROVED, OR WHICH IS DISAPPROVED, BY THE
COMMISSION IS DECLARED BY SEC. 15 TO BE "UNLAWFUL."  AND IT IS ALSO
PROVIDED THAT "BEFORE APPROVAL OR AFTER DISAPPROVAL IT SHALL BE
UNLAWFUL TO CARRY OUT IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, ANY
SUCH AGREEMENT . . . " 

/2/  THOSE SECTIONS READ, IN RELEVANT PART: 

"IT SHALL BE UNLAWFUL FOR ANY . . . PERSON SUBJECT TO THIS CHAPTER,
EITHER ALONE OR IN CONJUNCTION WITH ANY OTHER PERSON, DIRECTLY OR
INDIRECTLY . . . TO SUBJECT ANY PARTICULAR PERSON, LOCALITY, OR
DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE PREJUDICE OR
DISADVANTAGE IN ANY RESPECT WHATSOEVER . . . "  46 U.S.C. 815 (SEC.
16). 

"EVERY . . . PERSON SUBJECT TO THIS CHAPTER SHALL ESTABLISH,
OBSERVE, AND ENFORCE JUST AND REASONABLE REGULATIONS AND PRACTICES
RELATING TO OR CONNECTED WITH THE RECEIVING, HANDLING, STORING, OR
DELIVERING OF PROPERTY.  WHENEVER THE BOARD FINDS THAT ANY SUCH
REGULATION OR PRACTICE IS UNJUST OR UNREASONABLE IT MAY DETERMINE,
PRESCRIBE, AND ORDER ENFORCED A JUST AND REASONABLE REGULATION OR
PRACTICE."  46 U.S.C. 816 (SEC. 17). 

/3/  FOR A COMPREHENSIVE STUDY OF THE HISTORY OF LABOR RELATIONS IN
THE MARITIME INDUSTRY UP TO 1940, SEE MARITIME LABOR BOARD, REPORT TO
THE PRESIDENT AND TO THE CONGRESS, H.R. DOC. NO. 646, 76TH CONG., 3D
SESS. (1940).  FOR A VALUABLE HISTORY OF MARITIME LABOR RELATIONS ON
THE WEST COAST, SEE B. SCHNEIDER, INDUSTRIAL RELATIONS IN THE WEST
COAST MARITIME INDUSTRY, INSTITUTE OF INDUSTRIAL RELATIONS, UNIVERSITY
OF CALIFORNIA (BERKELEY, 1958). 

/4/  LONGSHOREMENT AND SEAMEN DEPEND, OF COURSE, ON THE MAMOUNT OF
WORK TO BE DONE.  IF BUSINESS IS BAD, THE WORKERS ARE WITHOUT WORK AND
WITHOUT PAY.  WITH RESPECT TO LONGSHOREMENT ON THE PACIFIC COAST,
HIRING IS DONE THROUGH HIRING HALLS OPERATED JOINTLY BY THE UNION AND
MANAGEMENT.  EMPLOYERS CAN OBTAIN LONGSHOREMEN ONLY THROUGH THESE
HALLS, AND ONLY FOR SPECIFIC JOBS.  NO LONGSHOREMAN MAY BE EMPLOYED
STEADILY BY ANY ONE EMPLOYER; RATHER, EACH IS DISPATCHED TO AN EMPLOYER
AS PART OF A GANG TO PERFORM A SPECIFIC LOADING OR UNLOADING JOB.  SEE
KOSSORIS, WORKING RULES IN WEST COAST LONGSHORING, 84 MONTHLY LABOR
REV. 1 (1961), FOR AN ACCOUNT OF THE HIRING PRACTICE ON THE WEST
COAST. 

/5/  THIS ACT WAS THE DIRECT RESULT OF THE ALEXANDER REPORT OF
1914.  HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, H.R. DOC. NO.
805, 63D CONG., 2D SESS. (1914). 

/6/  IN THAT STRIKE THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
DEMANDED WAGE INCREASED, A SIX-HOUR DAY, A CLOSED SHOP, AND UNION
CONTROL OF HIRING HALLS.  THE EMPLOYERS REFUSED TO ACCEDE TO THESE
DEMANDS, AND THE ENSUING STRIKE TIED UP SHIPPING FOR ALMOST THREE
MONTHS AT ALL PACIFIC PORTS.  PRESIDENT ROOSEVELT APPOINTED A NATIONAL
LONGSHOREMEN'S BOARD TO INTERVENE, AFTER A MEDIATION BOARD HAD FAILED
TO SETTLE THE DISPUTE.  THE UNION AND MANAGEMENT AGREED TO SUBMIT TO
ARBITRATION BY THE BOARD, AND TO END THE STRIKE WHILE ARBITRATION WAS
PROCEEDING.  BOTH SIDES AGREED TO ABIDE BY THE BOARD'S DECISION.  THE
ARBITRATION PROCEEDINGS TOOK SEVERAL MONTHS, AND THE AWARD WHICH WAS
EVENTUALLY RENDERED REPRESENTED SUBSTANTIAL GAINS FOR THE UNION. 
HIRING HALLS WERE TO BE OPERATED JOINTLY, WAGE INCREASES WERE GRANTED,
AND A SIX-HOUR DAY ESTABLISHED.  IN ADDITION, PORT LABOR RELATIONS
COMMITTEES WERE ESTABLISHED ON WHICH BOTH EMPLOYERS AND THE UNION WERE
REPRESENTED EQUALLY,; AND ALL ISSUES NOT DECIDED BY THOSE COMMITTEES
WERE TO BE SUBMITTED TO ARBITRATION. 

/7/  KILLINGSWORTH, THE MODERNIZATION OF WEST COAST LONGSHORE WORK
RULES, 15 IND. & LAB.REL.REV.  295, 296 (1962). 

/8/  KOSSORIS, SUPRA, N. 4, AT 1. 

/9/  IT WAS NOTED IN A 1941 HOUSE COMMITTEE REPORT ON A BILL
PROVIDING FOR A TWO-YEAR EXTENSION OF THE MLB THAT THE MLB WAS THE
"ONLY GOVERNMENT AGENCY WITH WHICH COPIES OF ALL LABOR AGREEMENT ARE
REQUIRED TO BE FILED AND THESE HAVE BEEN STUDIED BY THE BOARD WITH A
VIEW TO PROMOTING STABLE LABOR RELATIONS IN THE MARITIME INDUSTRY." 
HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, TWO-YEAR EXTENSION OF
THE MARITIME LABOR BOARD, H.R. REP. NO. 354, 77TH CONG., 1ST SESS., 2
(1941). 

/10/  UNDER THE 1938 ACT, QUESTIONS OF REPRESENTATION WERE RESERVED
TO THE NLRB.  SECTION 1002 OF THE MERCHANT MARINE ACT, AS AMENDED,
PROVIDED THAT: 

"THE PROVISIONS OF THIS TITLE SHALL NOT IN ANY MANNER AFFECT OR BE
CONSTRUED TO LIMIT THE PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT,
NOR SHALL ANY OF THE UNFAIR LABOR PRACTICES LISTED THEREIN BE
CONSIDERED A DISPUTE FOR THE PURPOSES OF THIS TITLE.  QUESTIONS
CONCERNING THE REPRESENTATION OF EMPLOYEES OF A MARITIME EMPLOYER SHALL
BE CONSIDERED AND DETERMINED BY THE NATIONAL LABOR RELATIONS BOARD IN
ACCORDANCE WITH THE PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT:
PROVIDED, HOWEVER, THAT NOTHING IN THIS TITLE SHALL CONSTITUTE A REPEAL
OR OTHERWISE AFFECT THE ENFORCEMENT OF ANY OF THE NAVIGATION LAWS OF
THE UNITED STATES OR ANY OTHER LAWS RELATING TO SEAMEN."  52 STAT.
965. 

/11/  HEARINGS ON H.R. 5734, BEFORE THE HOUSE COMMITTEE ON MERCHANT
MARINE AND FISHERIES, 84TH CONG., 1ST AND 2D SESS. (1955-1956). 

/12/  SEE, E.G., HANNA MINING CO. V. MARINE ENGINEERS, 382 U.S. 181
(PRE-EMPTION OF STATE LAW BY FEDERAL LABOR ENACTMENTS); MCCULLOCH V.
SOCIEDAD NACIONAL, 372 U.S. 10 (JURISDICTION OF NLRB OVER EMPLOYEES OF
FOREIGH-FLAG SHIPS); MARINE ENGINEERS V. INTERLAKE S.S. CO., 370 U.S.
173 (PRE-EMPTION); MARINK COOKS V. PANAMA S.S. CO., 362 U.S. 365
(APPLICATION OF NORRIS-LAGUARDIA ACT); BENZ V. COMPANIA NAVIERA
HIDALGO, 353 U.S. 138 (APPLICATION OF LABOR MANAGEMENT RELATIONS ACT TO
DISPUTES BETWEEN MARITIME EMPLOYEES AND FOREIGN SHIPS); LONGSHOREMEN V.
JUNEAU SPRUCE CORP., 343 U.S. 237 (RIGHT OF ACTION BY EMPLOYER AGAINST
UNION UNDER SEC. 303(A)(4) OF L.M.R.A.); NLRB V. PITTSBURGH S.S.CO.,
337 U.S. 31 (REPRESENTATION; REFUSAL TO BARGAIN); NLRB V. WATERMAN S.S.
CORP., 309 U.S. 206 (UNFAIR LABOR PRACTICE). 

/13/  KOSSORIS, SUPRA, N. 4, AT 2. 

/14/  AS ONE COMMENTATOR NOTED IN 1961: 

"THE LONGSHORE INDUSTRY IS TECHNOLOGICALLY AMONG THE MOST BACKWARD. 
AN INDUSTRIAL ENGINEER FROM ANY ONE OF THE MASS PRODUCTION INDUSTRIES
WOULD BE HORRIFIED TO FIND SACKS OF COFFEE ON THE SAN FRANCISCO DOCKS
BEING HANDLED JUST AS THEY HAVE BEEN HANDLED SINCE SAILING SHIP DAYS. 
NO ONE OF THE MANY SEPARATE CORPORATE LINKS IN THE TRANSPORTATION CHAIN
HAS SUFFICIENT INTEREST IN GREATER EFFICIENCY TO FORCE THE CHANGES IN
COFFEE HANDLING METHODS, FOR EXAMPLE, WHICH, TO BE EFFECTIVE, MUST
START IN BRAZIL AND BE CARRIED RIGHT THROUGHT TO HILLS BROTHERS OR
FOLGERS IN SAN FRANCISCO."  FIARLEY, THE "ILWU-PMA MECHANIZATION AND
MODERNIZATION AGREEMENT, 12 LAB.L.J. 664, 665 (1961). 

THE FIRST BIG CHANGE IN TECHNOLOGY ALONG THE DOCKS, NOTES MR.
FAIRLEY, WAS THE USE OF LIFT TRUCKS, PROPELLED BY WARTIME DEMANDS FOR
GREATER EFFICIENCY DURING WORLD WAR II.  SINCE THAT TIME, NEW METHODS
OF BULK HANDLING OF CARGO HAVE BEEN DEVELOPED, AND UNIT LOADS HAVE BEEN
INCREASINGLY USED (SUCH AS THOSE MADE BY GLUING ITEMS TOGETHER OR
STRAPPING THEM TOGETHER OR CONTAINERIZING THEM).  ID., AT 666.  ONE OF
THE MOST EFFICIENT OPERATIONS OF CONTAINERIZATION HAS BEEN USED BY THE
MATSON NAVIGATION CO. IN AUGUST 1964 THAT COMPANY CUT ITS RATES BY
NEARLY 10%, CITING COST REDUCTIONS MADE POSSIBLE BY A SHIP IMPROVEMENT
AND "CONTAINERIZATION" PLAN.  THE PLAN RELATES TO CONTAINER CARGO,
WHERE THE CONTAINERS ARE BOXES HOLDING UP TO 40 TONS OF FREIGHT.  THEY
ARE LOADED AT A FACTORY OR DISTRIBUTION POINT AND LIFTED ABOARD A SHIP
AND UNLOADED AS SINGLE UNITS.  MATSON CO. REPORTED THAT IT TOOK ABOUT
850 MAN-HOURS TO LOAD AND UNLOAD A SPECIALLY DESIGNED CONTAINER SHIP
CARRYING 6,500 TONS USING MECHANIZED EQUIPMENT.  THE SAME CARGO CARRIED
IN CONVENTIONAL LOOSE FORM WOULD TAKE 11,000 MAN-HOURS (ABOUT 13 TIMES
AS MUCH LABOR) TO LOAD AND UNOAD.  AN ADDED ATTRACTION OF THIS SAVING
IN TIME IS THE FACT THAT THE SHIPS GET IN AND OUT OF PORT FASTER,
PROVIDING ADDITIONAL COST SAVINGS.  FOR EXAMPLE, MATSON'S CONTAINER
SHIPS STAY IN PORT LESS THAN A DAY, COMPRED WITH FIVE DAYS FOR A
CONVENTIONAL SHIP.  SHIPPERS ESTIMATE THAT IT COST IN 1964 ABOUT $3,000
TO $5,000 FOR SUCH THINGS AS DEPRECIATION, SEAMEN'S WAGES AND PIER
CHARGES FOR EACH DAY A SHIP STAYS IN PORT.  THE WALL STREET JOURNAL,
NOV. 20, 1964, AT 8, COL. 2.  FOR A MORE TOROUGH CONSIDERATION OF THE
CHANGES IN TECHNOLOGY THAT PROMISE GREAT BENEFITS FOR THE SHIPPING
INDUSTRY, SEE THE COMPREHENSIVE EIGHT-VOLUME STUDY OF THE UNITED STATES
DEPARTMENT OF LABOR, MANPOWER UTILIZATION, JOB SECURITY IN THE
LONGSHORE INDUSTRY (1964).  SEE ALSO SHILS, INDUSTRIAL UNREST IN THE
NATION'S MARITIME INDUSTRY, 15 LAB.L.J. 337, 356-358 (WHERE THE AUTHOR
NOTES IMPROVEMENTS IN CONSTRUCTION OF VESSELS, THE USE OF HIGHLY
MECHANIZED CARGO SHIPS, CHANGES IN ENGINE ROOM OPERATION, IN THE DECK
DEPARTMENT AND IN THE STEWARD DEPARTMENT, AND A NEW LINE OF SEMI
AUTOMATED VESSLES); O. HAGEL & L. GOLDBLATT, MEN AND MACHINES, JOINT
PUBLICATION OF THE I.L.W.U. AND P.M.A. (SAN FRANCISCO, 1963).     /15/
MULTIPLE HANDLING REFERS TO THE LABOR PRACTICE REQURING THE CARGO TO
TOUCH THE "SKIN OF THE DOCK" AFTER BEING UNLOADED BEFORE SOMEONE OTHER
THAN A LONGSHOREMAN CAN HANDLE IT.  FOR LOADING OF CARGO, ONLY THE
LONGSHOREMAN CAN PLACE IT ON THE SHIP AFTER A TEAMSTER HAS UNLOADED IT
FROM HIS TRUCK ONTO THE DOCK.  KOSSORIA, SUPRA, N. 4, AT 2. 

/16/  SLING-LOAD WEIGHT IS THE WEIGHT LIMIT FOR A LOAD OF CARGO.  IN
1961 THE MAXIMUM WEIGHT WAS USUALLY ABOUT 2,100 POUNDS PER PALLET
(ALTHOUGH MUCH HEAVIER LOADS APPARENTLY COULD HAVE BEEN CARRIED
SAFELY).  LARGER PALLETS WERE "SKIMMED DOWN" TO 2,100 POUNDS BY
LONGSHOREMEN.  IBID. 

/17/  EACH MAJOR PORT WOULD HAVE ITS OWN RULES STIPULATING THE
NUMBER OF MEN NEEDED ON GANGS.  FREQUENTLY, THE NUMBER WAS MORE THAN
WAS NEEDED FOR THE JOB.  FOR EXAMPLE, THE "FOUR-ON FOUR-OFF" GANG
REQURIED EIGHT MEN IN THE HOLD OF A SHIP, ALTHOUGH ONLY FOUR ACTUALLY
WORKED WHILE THE OTHER FOUR RESTED.  ID., AT 3.  SEE GENERALLY
KILLINGSWORTH, SUPRA, N. 7; P. HARTMENT, UNION WORK RULES:  A BREIF
THEORETICAL ANALYSIS AND SOME EMPIRICAL RESULTS, U. OF ILL. BULL.,
INSTITUTE OF LABOR & INDUSTRIAL RELATIONS (1967). 

/18/  FAIRLEY, SUPRA, N. 14, AT 666. 

/19/  KOSSORIS, SUPRA, N. 4, AT 1. 

/20/  ALTHOUGH THE METHOD OF RAISING THIS AMOUNT OF MONEY WAS NOT
SPECIFIED IN THE AGREEMENT, PMA ACCUMULATED THE FUND BY ASSESSING ITS
MEMBERS UNDER A MAN-HOUR FORMULA. 

/21/  IN AUGUST 1966 A NEW AGREEMENT WAS SIGNED WHICH CONTINUED THE
MECH FUND UNTIL 1971; BUT THIS TIME THE EMPLOYERS AGREED TO PAY EVEN
MORE INTO THE FUND EACH YEAR-- $6,900,000.  BOTH THE UNION AND THE
EMPLOYERS WERE HIGHLY SATISFIED WITH THE WAY THE PLAN HAD WORKED.  FOR
A GENERAL DESCRIPTION OF THE 1966 CONTRACT, SEE BUSINESS WEEK, JULY 30,
1966, AT 108; KOSSORIS, 1966 WEST COAST LONGSHORE NEGOTIATIONS, 89
MONTHLY LABOR REV. 1067.  KOSSORIS POINTS OUT THE GREAT EFFECT HWICH
ABOLITION OF RESTRICTIVE WORK PRACTICES AND INCREASED USE OF MODERN
TECHNOLOGY HAD HAD FOR THE EMPLOYERS:  "TONNAGE INCREASED BY ABOUT 32
PERCENT; BUT MAN-HOURS REMAINED ABOUT THE SAME.  DESPITE AN INCREASE
OVER THE PERIOD OF 56 CENTS IN THE BASIC WAGE AND LIBERALIZATION OF
FRINGE BENEFITS, INCLUDING THE $5 MILLION THE EMPLOYERS PAID INTO THE
FUND, THE COST PER TON DROPPED FROM $6.26 TO $6.16 . . . MAKING
ALLOWANCE FOR ALL IMPORTANT FACTORS INVOVLED, THE GAIN TO EMPLOYERS
FROM THE M&M AGREEMENT MAY BE PLACED CONSERVATIVELY AS WELL IN EXCESS
OF $150 MILLION.  SUBTRACTING FROM THIS THE $27.5 MILLION PAID INTO THE
M&M FUND OVER THE 5 1/2 YEAR PERIOD OF THE LAST CONTRACT MAKES THE
EMPLOYER ESTIMATE OF $120 MILLION NET GAIN APPEAR REALISTIC."  ID., AT
1068-1069. 

/22/  125 U.S.APP.D.C. 282, 293, 371 F.2D 747, 758 (1967). 

/23/  WE ARE TOLD THAT THIS IS NOT THE FIRST TIME THAT PMA MEMBERS
HAVE ENTERED INTO AGREEMENTS AMONG THEMSELVES TO FORM AND FINANCE THEIR
COLLECTIVE BARGAINING AGREEMENTS.  THEY HAVE AGREED TO THE PRESENTATION
OF UNIFORM BARGAINING TERMS, AND HAVE PROVIDED, THROUGH AGREEMENTS
AMONG THEMSELVES, FOR THE ADMINISTRATION AND IMPLEMENTATION OF THEIR
UNION CONTRACTS.  ALL OF THESE WOULD AFFECT TRANSPORTATION RATES.  IN
ESSENCE, SUCH AGREEMENTS, NO LESS THAN THE FUNDING METHOD EMPLOYED BY
PMA, HAVE ESTABLISHED UNIFORM COSTS FOR ALL EMPLOYERS OF MARITIME LABOR
- INDEED THE PRIMARY OBJECT OF INDUSTRY-WIDE BARGAINING HAS BEEN TO
ESTABLISH UNIFORM WAGES, FRINGE BENEFITS, AND WORKING CONDITIONS. 

/24/  MR. PAUL ST.SURE, PRESIDENT OF PMA, TESTIFIED: 

"IT (THE METHOD OF PAYMENT OF THE FUND) WAS A DEFINITE PART OF THE
NEGOTIATIONS IN THAT THE UNION TOOK A POSITION WITH REGARD TO THE
METHOD OF COLLECTION.  PMA TOOK A POSITION WITH REGARD TO THE METHOD OF
COLLECTION.  THERE WERE DISCUSSIONS WITH THE UNION DURING NEGOTIATION
AS TO THE PROBLEMS THAT HAD BEEN PRESENTED BY THE METHOD OF COLLECTION
USED WITH RELATION TO THE MILLION DOLLARS AND A HALF. 

"WE DISCUSSED WITHTHE UNION THE DIFFERENCES OF OPINION AMONG OUR OWN
MEMBERS AS TO THE EQUITABLE METHOD OF PROVIDING FOR THE COLLECTION OF
THIS MONEY. 

"WE ENDED UP WITH AN AGREEMENT BY THE UNION THAT, INASMUCH AS THE
EMPLOYER MEMBERS OF THE BARGAINING UNIT HAD COMMITTED THEMSELVES
SPECIFICALLY TO THE PAYMENT OF THE SUM, THAT WHEREAS THEY WERE
INTERESTED IN THE ASSURANCE THAT THE SUM WOULD BE COLLECTED, THEY WOULD
ALLOW US TO WORK OUT AMONG OURSELVES THE METHOD OF ACTUAL COLLECTION
WITHIN THE MEMBERSHIP OF PMA." 

SUCH ACTION, HOWEVER, DID NOT MAKE THE UNION A DISINTERESTED PARTY;
RATHER, THE UNION CERTAINLY HAD A CONTINUING INTEREST IN THE METHOD OF
FINANCING THE FUND.  MR. ST.SURE, WHO WAS DEEPLY INVOLVED SINCE 1948 IN
NEGOTIATIONS WITH THE ILWU, TESTIFIED: 

"THERE WAS A CONTINUING INTEREST AND A CONTINUING CONCERN AS TO
WHETHER OR NOT THE COLLECTIONS UNDER THE FUND WERE BEING MET. 
OBVIOUSLY THEY HAVE, BY JOINT TRUSTEESHIP, JOINT CUSTODY OF THE FUND,
AND I CAN ASSURE YOU THAT THEY WERE ALERT AS TO WHETHER OR NOT THE
METHOD OF THE CUSTODY, WAS WORKING, BECAUSE THEY BELIEVED THIS AND, IN
FACT, KNEW IT WAS THEIR MONEY TO SPEND IN ACCORDANCE WITH THE
AGREEMENT. 

.          .          .          . 

"AFTER ALL, THIS WAS A CONTINUING RELATIONSHIP THAT WE HAVE, BY THE
COLLECTIVE BARGAINING AGREEMENT,AND MY EXPERIENCE WOULD SUGGEST TO ME
THAT WE COULDN'T HAVE ADOPTED THE METHOD WHICH WOULD DEFEAT THE VERY
PURPOSE FOR UHICH WE HAD REACHED A BARGAIN WITHOUT HAVING FURTHER
NEGOTIATIONS." 

THE HEARING EXAMINER STATED IN HIS OPINION THAT MR. ST.SURE
TESTIFIED THAT THE ILWU'S INTEREST IN THE METHOD TO BE ADOPTED, CEASED
AFTER IT WAS AGREED THAT THE METHOD OF COLLECTION WAS TO BE RESERVED TO
PMA."  IN THE PRINTED RECORD BEFORE THE COURT, HOWEVER, I FIND NO
REFERENCE IN MR. ST.SURE'S TESTIMONY TO A LACK OF INTEREST ON THE PART
OF THE UNION CONCERNING THE METHOD OF CO-LECTION OF THE FUND.  THE
HEARING EXAMINER DOES NOT INDICATE THE TESTIMONY ON WHICH HIS
INTERPRETATION OF MR. ST.SURE'S PRESENTATION IS BASED; AND, AT THE
LEAST, THAT PART OF HIS TESTIMONY QUOTED WOULD APPEAR TO RAISE A STRONG
DOUBT WHETHER IT COULD BE SAID THAT THE INTEREST OF THE UNION CEASED. 
IN ANY EVENT, IT IS CLEAR FROM MR. ST.SURE'S TESTIMONY THAT THE METHOD
OF COLLECTION WAS A PRIME TOPIC OF NEGOTIATIONS BETWEEN THE PARTIES,
AND THAT THE EMPLOYERS' DECISION ON THE MATTER WAS INTIMATELY TIED WITH
THE COLLECTIVE BARGAINING AGREEMENT. 

/25/  MR. ST.SURE TESTIFIED: 

"WELL, THIS WAS STILL PART OF THE BARGAINING PROCESS.  WE WERE STILL
ACTUALLY TRYING TO CONCLUDE THE BARGAIN WHICH WE HAD DEVELOPED AND HAD
SIGNED A MEMORANDUM TO COVER.  WE STILL HAD THE RESPONSIBILITY AS A
NEGOTIATING COMMITTEE OF REPORTING BACK TO THE BOARD OF DIRECTORS, AND
THEN TO THE MEMBERSHIP, AND THIS WAS SIMPLY A CONVENIENT MEANS OF
CALLING IN SOME MEN THAT WE FELT WERE MORE EXPERT IN THIS FIELD THAN
THE NEGOTIATORS WERE WHO WERE OPERATING PEOPLE TO MAKE A RECOMMENDATION
AS TO A METHOD OF PAYMENT." 

/26/  SEE N. 24, SUPRA. 

/27/  SEE FMC RULE 5(1), 46 CFR 502.72 (PETITIONS FOR INTERVENTION
IN FMC PROCEEDINGS).  SEE ALSO FMC RULE 10(C), 46 CFR 502.143 (NOTICE
OF HEARINGS). 

/28/  INDEED, THE LEGISLATIVE HISTORY WOULD APPEAR TO BE TO THE
CONTRARY.  SEE N. 9, SUPRA. 

/29/  THE CIRCUMSTANCES THAT THE FUNDING PLAN ORIGINATED IN
COLLECTIVE BARGAINING AND WAS A PART OF A COLLECTIVE BARGAINING
AGREEMENT WOULD NOT AUTOMATICALLY CREATE AN EXEMPTION FROM THE
ANTITRUST LAWS.  SEE MINE WORKERS V. PENNINGTON, 381 U.S. 657; MEAT
CUTTERS V. JEWEL TEA, 381 U.S. 676; ALLEN BRADLEY CO. V. UNION, 325
U.S. 797. 

/30/  THE COMMISSION HELD UNDER SEC. 16 THAT THAT SECTION IS
VIOLATED ONLY IF THERE IS DISCRIMINATION BETWEEN COMPETITORS, WHICH WAS
NOT THE SITUATION HERE BECAUSE THE MARINE TERMINAL COMPANIES HAVE
IMPOSED NO HIGHER CHARGES ON VOLKSWAGENS THAN ON OTHER AUTOMOBILES. 
ALTHOUGH SUCH AN INTERPRETATION IS SUPPORTED BY THE CONSTRUCTION PLACED
ON SEC. 3(1) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 3(1), UNITD
STATES V. GREAT NORTHERN R. CO., 301 I.C.C. 21, 26-27, ON WHICH SEC. 16
OF THE SHIPPING ACT IS MODELED, UNITED STATES NAV. CO. V. CUNARD S.S.
CO., 284 U.S. 474, 480-481, IT HAS BEEN SUGGESTED THAT THE COMMISSION
HAS UNDERMINED ITS OWN RULE BY NOT REQUIRING A COMPETITIVE RELATIONSHIP
IN CASES NOT INVOLVING FREIGHT RATES:  INVESTIGATION OF FREE TIME
PRACTICES-- PORT OF SAN DIEGO, 9 F.M.C. 525 (1966) (PORT FREE TIME);
NEW YORK FOREIGN FREIGHT FORWARDERS AND BROKERS ASSN. V. FMC, 337 F.2D
289 (C.A. 2D CIR. 1964), CERT. DENIED, 380 U.S. 910 (BILLING METHODS OF
FREIGHT FORWARDERS); SWIFT & CO. V. GULF & SOUTH ATLANTIC HAVANA
CONFERENCE, 6 F.M.B. 215 (1961) (ROUTE RESTRICTIONS); STORAGE PRACTICES
AT LONGVIEW, WASHINGTON, 6 F.M.B. 178 (1960) (STORAGE CHARGES). 
MOREOVER, IT IS ARGUED THAT THE COMPETITIVE RELATIONSHIP TEST EMPLOYED
BY THE ICC UNDER SEC 3(1) OF THE INTERSTATE COMMERCE ACT IS NOT "AN
INDISPENSABLE ELEMENT IN A SITUATION OF UNDUE PREJUDICE AND PREFERENCE
. . . "  JOSEPH A. GODDARD REALTY CO. V. NEW YORK, C. & ST. L.R. CO.,
229 I.C.C. 497, 501.  THE MARITIME COMMISSION'S REFUSAL TO REQUIRE A
COMPETITIVE RELATIONSHIP INCERTAIN CASES, HOWEVER, HAS DILUTED THAT
PRINCIPLE ONLY IN THOSE SITUATIONS IN WHICH THERE ARE SERVICES THAT ARE
NOT DEPENDENT UPON THE NATURE OF THE CARGO AND THE AVRIOUS CHARGES
THEREFOR.  IN THE INSTANT CASE, HOWEVER, THERE ARE DIFFERENT CHARGES
LEVIED DEPENDING UPON THE NATURE OF THE CARGO INVOVLED.  PETITIONER
CONCEDED BEFORE THE HEARING EXAMINER THAT ((WE DO NOT CLAIM THAT THE
MEASUREMENT FORMULA 'REGARDLESS OF HOW MANIFESTED' SUBJECTS VOLKSWAGEN
AUTOMOBILES TO 'PREJUDICE OR DISADVANTAGE' AS COMPARED TO OTHER
AUTOMOBILES, AND WE ADMIT THAT THERE IS NO OTHER CARGO CLASSIFICATION
IN COMPETITION WITH AUTOMOBILES."  THE COMPETITIVE RELATIONSHIP RULE
HAS BEEN APPLIED CONSISTENTLY BY THE COMMISSION IN APPROPRIATE
CIRCUMSTANCES.  THE SAME RULE HAS ALSO BEEN USED BY THE ICC.  SINCE I
CANNOT SAY IN THE CIRCUMSTANCES OF THIS CASE THAT THE REQUIREMENT OF A
COMPETITIVE RELATIONSHIP IS UNREASONABLE OR INCONSISTENT WITH THE
PROVISIONS OF THE SHIPPING ACT, I WOULD DEFER TO THE COMMISSION'S
EXPERTISE.  CONSOLO V. FMC, 383 U.S. 607 

WITH RESPECT TO SEC. 17, THE COMMISSION EXPRESSLY NOTED THAT (1) THE
MEASUREMENT BASIS FOR ASSESSING AUTOMOBILES RESULTED IN AN ASSESSMENT
ALMOST 10 TIMES GREATER THAN A WEIGHT BASIS ($2.35 PER VEHICLE AS
AGAINST APPROXIMATELY $0.25); (2) THAT ALTHOUGH OTHER CARGO WAS
ASSESSED AS MANIFESTED, VEHICLES WERE ALWAYS ASSESSED ON A MEASUREMENT
BASIS; AND (3) WHILE AUTOMOBILE CARGO WOULD PROBABLY RECEIVE ONLY
GENERAL BENEFITS FROM THE MECHANIZATION PLAN (SUCH AS FREEDOM FROM
STRIKES AND SLOWDOWNS), SUCHCARGO, UNLIKE SOME OTHER CARGO, WAS
UNLIKELY TO BENEFIT FROM TECHNOLOGICAL IMPROVEMENTS IN LOADING AND
UNLOADING.  YET, THE COMMISSION HELD THAT THE DIFFERENCE IN TREATMENT
WAS NOT UNREASONABLE BECAUSE ALTHOUGH AUTOMOBILE CARGO MAY NOT HAVE
BENEFITED AS MUCH AS OTHER CARGO, IT DID RECEIVE "SUBSTANTIAL BENEFITS"
FROM THE MECHANIZATION AGREEMENT.  AS THE COURT HOLDS, HOWEVER, SUCH A
STANDARD, WHICH FOCUSES ON ONLY THE BENEFITS RECEIVED, REPRESENTS TOO
NARROW A VIEW OF SEC. 17.  WHAT PETITIONER IS CONTESTING ESSENTIALLY IS
PMA'S DECISION TO ADOPT AS THE REVENUE TON FOR AUTOMOBILES NOT A WEIGHT
TON (2,000 POUNDS) BUT A MEASUREMENT TON EXPRESSED IN VOLUMETRIC TERMS
(40 CUBIC FEET/TON).  SINCE THE AVERAGE VOLKSWAGEN WEIGHS ONLY 1,800
POUNDS, BUT MEASURES ABOUT 8.7 TONS ON A VOLUME BASIS, IT IS BEING
ASSESSED $2.35 COMPARED WITH THE $0.25 IT WOULD OTHERWISE HAVE TO PAY
ON THE BASIS OF A WEIGHT-TON MEASUREMENT.  IT IS ARGUED THAT THIS
EXACTION IS GROSSLY DISPROPORTIONATE IN LIGHT OF THE LIMITED BENEFITS
WHICH PETITIONER COULD EXPECT TO RECEIVE FROM THE ME CHANIZATION
AGREEMENT AS COMPARED WITH THOSE WHICH OTHER SHIPPERS COULD
ANTICIPATE.  TO FOCUS AN INQUIRY SOLELY ON THE BENEFITS RECEIVED MAY
OBSCURE THE DISPARITY BETWEEN THE CHARGES ULTIMATELY FALLING UPON
PETITIONER AND THOSE EXACTED FROM OTHER SHIPPERS.  THE COMMISSION
SHOULD COMPARE THE BENEFITS RECEIVED WITH THE CHARGES IMPOSED ON
PETITIONER'S CARGO AND WITH THOSE LEVIED UPON OTHER CARGO, WHICH
RECEIVES SUBSTANTIALLY SIMILAR BENEFITS, BEFORE THE QUESTION OF
REASONABLENESS CAN BE RESOLVED.  THIS DETERMINATION IS FOR THE
COMMISSION TO MAKE IN THE FIRST INSTANCE. 

WALTER HERZFELD ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE CECELIA H. GOETZ, RICHARD A. WHITING, ROBERT J. CORBER AND
STANLEY J. MADDEN. 

RICHARD A. POSNER ARUGED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE ACTING SOLICITOR GENERAL SPRITZER, ASSISTANT ATTORNEY
GENERAL TURNER, HOWARD E. SHAPIRO AND MILTON J. GROSSMAN. 

ROBERT N. KATZ ARGUED THE CAUSE AND FILED A BRIEF FOR RESPONDENT
FEDERAL MARITIME COMMISSION.  GARY J. TORRE ARGUED THE CAUSE FOR
RESPONDENTS PACIFIC MARITIME ASSOCIATION ET AL.  WITH HIM ON THE BRIEF
FOR PACIFIC MARITIME ASSOCIATION WERE EDWARD D. RANSOM AND R. FREDERIC
FISHER.  ON THE BRIEF FOR MARINE TERMINALS CORP. WERE OWEN JAMESON AND
WILLIAM W. SCHWARZER. 

NORMAN LEONARD FILED A BRIEF FOR THE INTERNATIONAL LONGSHOREMEN'S &
WAREHOUSEMEN'S UNION, AS AMICUS CURIAE, URGING AFFIRMANCE. 
..END :









SEC V. NEW ENGLAND ELEC. SYSTEM, 390 U.S. 207 


       SECURITIES AND EXCHANGE COMMISSION V. NEW ENGLAND ELECTRIC

           SYSTEM ET AL.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIRST CIRCUIT. 

        NO. 305.  ARGUED JANUARY 18, 1968.-- DECIDED MARCH 5,
1968. 


THIS COURT PREVIOUSLY HELD (384 U.S. 176) THAT THE SEC WAS WARRANTED
IN RULING THAT SEC 11(B)(1)(A) OF THE PUBLIC UTILITY HOLDING COMPANY
ACT OF 1935 PROHIBITS A PUBLIC UTILITY HOLDING COMPANY FROM RETAINING
AN INTEGRATED ELECTRIC SYSTEM UNLESS THE GAS SYSTEM COULD NOT BE
OPERATED SEPARATELY WITHOUT A LOSS OF ECONOMICES CAUSING A SERIOUS
IMPAIRMENT OF THAT SYSTEM.  AFTER REMAND, THE COURT OF APPEALS REVIEWED
THE EVIDENCE AND CONCLUDED THAT THE SEC ERRED IN FINDING THAT NEW
ENGLAND ELECTRIC SYSTEM FAILED TO PROVE A CASE FOR RETENTION OF ITS
INTEGRATED GAS SYSTEM.  HELD:  SINCE THE SEC'S DETERMINATION THAT
DIVESTITURE OF THE GAS SYSTEM WOULD NOT ENTAIL A LOSS OF ECONOMIES
LIKELY TO CAUSE SERIOUS IMPAIRMENT OF THE SYSTEM INVOLVED THE
APPLICATION OF EXPERT JUDGMENT WHICH HAD ADEQUATE SUPPORT IN THE
RECORD, THE COURT OF APPEALS SHOULD HAVE AFFIRMED THE SEC ORDER AND
SHOULD NOT HAVE INDULGED IN AN UNWARRANTED INCURSION INTO THE
ADMINISTRATIVE DOMAIN.  PP. 211-221. 

376 F.2D 107, REVERSED AND REMANDED. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT NEW ENGLAND ELECTRIS SYSTEM (NEES), A HOLDING COMPANY
REGISTERED UNDER SEC. 5 OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF
1935, /1/  CONTROLS BOTH AN INTEGRATED ELECTRIC UTILITY SYSTEM AND AN
INTEGRATED GAS UTILITY SYSTEM.  /2/  SECTION 11(B) OF THE ACT REQUIRES
THE SECURITIES AND EXCHANGE COMMISSION TO LIMIT THE OPERATIONS OF A
HOLDING COMPANY SYSTEM TO A SINGLE INTEGRATED PUBLIC UTILITY SYSTEM,
EXCEPT THE COMMISSION MAY PERMIT PERMIT THE HOLDING COMPANY TO CONTINUE
CONTROL OF ANY ADDITIONAL INTEGRATED UTILITY SYSTEM THAT THE COMMISSION
DETERMINES, AMONG OTHER THINGS, "CANNOT BE OPERATED AS AN INDEPENDENT
SYSTEM WITHOUT THE LOSS OF SUBSTANTIAL ECONOMIES WHICH CAN BE SECURED
BY THE RETENTION OF CONTROL BY SUCH HOLDING COMPANY OF SUCH SYSTEM . .
. "  /3/  IN 1957 THE SECURITIES AND EXCHANGE COMMISSION INSTITUTED
PROCEEDINGS TO DETERMINE WHETHER NEES SHOULD BE PERMITTED TO RETAIN
CONTROL OF BOTH THE ELECTRIC AND GAS SYSTEMS.  THE COMMISSION INITIALLY
FOUND THAT THE ELECTRIC COMPANIES CONSTITUTED A SINGLE INTEGRATED
ELECTRIC UTILITY SYSTEM, 38 S.E.C. 193 (1958), AND NEES ELECTED TO
RETAIN THOSE COMPANIES AS ITS PRINCIPAL SYSTEM.  NEES URGED, HOWEVER,
THAT IT SHOULD ALSO BE PERMITTED TO RETAIN THE GAS SYSTEM.  AFTER
EXTENSIVE HEARINGS, THE COMMISSION REFUSED RESPONDENT PERMISSION TO DO
SO, AND ORDERED THE GAS SYSTEM DIVESTED.  41 S.E.C. 888 (1964). 

IN REACHING ITS CONCLUSION THE COMMISSION CONSTRUED THE STATUTORY
PHRASE "LOSS OF SUBSTANTIAL ECONOMIES" IN CLAUSE A OF SEC. 11(B)(1) TO
REQUIRE A SHOWING THAT THE "ADDITIONAL SYSTEM CANNOT BE OPERATED UNDER
SEPARATE OWNERSHIP WITHOUT THE LOSS OF ECONOMIES SO IMPORTANT AS TO
CAUSE A SERIOUS IMPAIRMENT OF THAT SYSTEM."  IN ITS FIRST REVIEW OF THE
COMMISSION'S ORDER, THE COURT OF APEPALS FOR THE FIRST ACIRCUIT HELD
THAT THE COMMISSION HAD ERRONEOUSLY CONSTRUED THE STATUTE; IN THE
COURT'S VIEW, "LOSS OF SUBSTANTIAL ECONOMIES" MERELY "CALLED FOR A
BUSINESS JUDGMENT OF WHAT WOULD BE A SIGNIFICANT LOSS.  THE COURT
THEREFORE SET ASIDE THE COMMISSION'S ORDER AND REMANDED FOR
RECONSIDERATION IN LIGHT OF THAT TEST.  346 F.2D 399, 406.  WE
REVERSED, APPROVING THE COMMISSION'S CONSTRUCTION AND REMANDED TO THE
COURT OF APPEALS FOR REVIEW OF THE CHALLENGED ORDER IN LIGHT OF THE
PROPER MEANING OF THE STATUTORY TERM.  SEC V. NEW ENGLAND ELECTRIC
SYSTEM, 384 U.S. 176 (NEES I).  ON REMAND, THE COURT OF APPEALS AGAIN
SET ASIDE THE COMMISSION'S ORDER.  376 F.2D 107.  /4/  THAT COURT,
"AFTER A FRESH REVIEW OF ALL THE EVIDENCE," CONCLUDED "THAT
THECOMMISSION'S OPINION DOES NOT REVEAL THAT APPLICATION OF BOTH REASON
AND EXPERIENCE TO FACTS WHICH MERITS ENDORSEMENT AS THE RESPONSIBLE
EXERCISE OF EXPERTISE."  ID., AT 111.  WE GRANTED CERTIORARI.  389 U.S.
816.  WE REVERSE AND REMAND TO THE COURT OF APPEALS WITH DIRECTION TO
ENTER A JUDGMENT AFFIRMING THE COMMISSION'S ORDER. 

THE QUESTION FOR OUR DECISION IS WHETHER THE COURT OF APPEALS
PROPERLY HELD THAT, ON THE RECORD, THE COMMISSION ERRED IN FINDING THE
NEES FAILED TO PROVE A CASE FOR RETENTION OF THE INTEGRATED GAS UTILITY
SYSTEM.  WE ADDRESS THAT QUESTION AGAINST THE BACKGROUND OF A
CONGRESSIONAL OBJECTIVE TO PROTECT CONSUMER INTERESTS THROUGH THE
ELIMINATION OF 'RESTRAINT OF FREE AND INDEPENDENT COMPETITION.'  . . .
ONE OF THE EVILS THAT HAD RESULTED FROM CONTROL OF UTILITIES BY HOLDING
COMPANIES WAS THE RENTENTION IN ONE SYSTEM OF BOTH GAS AND ELECTRIC
PROPERTIES AND THE FAVORING OF ONE OF THESE COMPETING FORMS OF ENERGY
OVER THE OTHER."  NEES 1, 384 U.S., AT 183.  /5/ CONGRESS THEREFORE
ORDAINED SEPARATE OWNERSHIP-- AND DIVESTITURE WHERE NECESSARY TO REDUCE
HOLDINGS TO ONE SYSTEM-- AS THE "'VERY HEART' OF THE ACT."  ID., AT
180.  ALTHOUGH CONGRESS WAS AWARE THAT SOME ECONOMIC LOSS MIGHT BE
SUFFERED BY THE PARENT HOLDING COMPANY OR THE SEPARATED INTEGRATED
UTILITY, CONGRESS RELENTED ONLY TO THE EXTENT OF AUTHORIZING THE
COMMISSION TO PERMIT RETENTION OF AN ADDITIONAL INTEGRATED UTILITY IF
THAT PERMISSION MIGHT BE GRANTED UNDER THE NARROW EXCEPTION PROVIDED BY
SEC. 11(B)(1).  BUT "RETENTION OF AN 'ADDITIONAL' INTEGRATED SYSTEM IS
DECIDEDLY THE EXCEPTION," AND THE BURDEN IS ON THE HOLDING COMPANY TO
SATISFY THE "STRINGENT TEST" SET BY THE STATUTE.  ID., AT 180, 182, CF.
UNITED STATES V. FIRST CITY NAT. BANK, 386 U.S. 361, 366. 

CONGRESS COMMITTED TO THE COMMISSION THE TASK OF DETERMINING WHETHER
A HOLDING COMPANY HAS MET THE BURDEN OF SHOWING THAT ITS SITUATION
FALLS WITHIN THE NARROW EXCEPTION UNDER SEC. 11(B)(1).  THE CLAUSE A
DETERMINATION WHETHER SEPARATION ENTAILS A LOSS OF ECONOMIES LIKELY TO
CAUSE A SERIOUS IMPAIRMENT OF THE SYSTEM INVOLVES AN ELEMENT OF
PREDICTION WHICH NECESSARILY CALLS FOR DIFFICLUT AND EXPERT JUDGMENT. 
THAT JUDGMENT REQUIRES THE ASSESSMENT OF MANY SUBTLE AND OFTEN
INTANGIBLE FACTORS NOT EASILY EXPRESSED IN PRECISE OR QUANTIFIABLE
TERMS.  THIS IS THE VERY NATURE OF ECONOMIC FORECASTING.  THE TASK
CALLS FOR EXPERTISE AND IS NOT SIMPLY "AN EXERCISE IN COUNTING
COMMONPLACES."  UNITED STATES V. DRUM, 368 U.S. 370, 384; SEE NEES I,
384 U.S.,AT 184 185.  JUDICIAL REVIEW OF THAT EXPERT JUDGMENT IS
NECESSARILY A LIMITED ONE.  SEE GRAY V. POWELL, 314 U.S. 402, 412-413;
NLRB V. HEARST PUBLICATIONS, 322 U.S. 111, 131; ATLANTIC REF. CO. V.
FTC, 381 U.S. 357, 367-368; UNITED STATES V. DRUM, SUPRA, AT 375-376. 
CONGRESS EXPRESSLY PROVIDED THAT "(THE FINDINGS OF THE COMMISSION AS TO
THE FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE." 
15 U.S.C. 79XA); SEE UNIVERSAL CAMERA CORP. V. NLRB, 340 U.S. 474; CF.
NLRB V. ERIE RESISTOR CORP., 373 U.S. 221, 236.  IN OUR VIEW, THE COURT
OF APPEALS IN THIS CASE INDULGED IN AN UNWARRANTED INCURSION INTO THE
ADMINISTRATIVE DOMAIN.  /6/  THE COMMISSION'S ORDER HAS ADEQUATE
SUPPORT IN THE RECORD AND SHOULD HAVE BEEN AFFIRMED. 

AS OF 1958, THE TEST YEAR SELECTED FOR PURPOSES OF THESE
PROCEEDINGS, /7/  NEES' EIGHT GAS SUBSIDIARIES PROVIDED RETAIL SERVICE
TO SOME 237,000 CUSTOMERS IN A RELATIVELY COMPACT 660-SQUARE-MILE
FRANCHISE AREA IN MASSACHUSETTS.  NEES' ELECTRIC COMPANIES ALSO SERVED
75% OF THIS AREA AND ABOUT 78% OF THE GAS CUSTOMERS WERE ALSO ELECTRIC
CUSTOMERS.  NEES' GROSS INVESTMENT IN GAS PLANT AND EQUIPMENT WAS ABOUT
$56,300,000 AND GROSS GAS REVENUES FOR 1958 WERE ABOUT $22,700,000. 
THE EIGHT GAS COMPANIES WERE ORGANIZED ADMINISTRATIVELY AS A GAS
DIVISION WITH CENTRALIZED MANAGEMENT, MARKETING AND SUPPLY, OPERATIONS,
AND MERCHANDISING DEPARTMENTS.  /8/  THE CHIEF EXECUTIVE OF THE GAS
DIVISION WAS ALSO PRESIDENT OF EACH GAS COMPANY AND ULTIMATELY
RESPONSIBLE TO NEES' VICE PRESIDENT IN CHARGE OF MANAGEMENT; IN SHORT,
TOP MANAGEMENT RESTED WITH EXECUTIVES HAVING JOINT CONTROL OVER BOTH
ELECTRIC AND GAS OPERATIONS. 

THE COMMISSION HAD BEFORE IT A "SEVERANCE STUDY," A COST ANALYSIS
AND PROJECTION PREPARED FOR NEES BY A PROFESSIONAL PUBLIC UTILITIES
MANAGEMENT CONSULTING FIRM, EBASCO SERVICES, INC. THIS STUDY PROJECTED
A LOSS OF ECONOMICS OF APPROXIMATELY $1,100,000 ANNUALLY FOR THE GAS
SYSTEM AS THE RESULT OF ITS SEPARATION FROM NEES.  THE COMMISSION DEALT
WITH THIS STUDY IN ALATERNATIVE WAYS.  IT ANALYZED THE STUDY AND
CONCLUDED THAT "(THE EBASCO ESTIMATE IS INADEQUATELY SUPPORTED IN A
NUMBER OF IMPORTATNT ASPECTS AND LEAVES CONSIDERABLE DOUBTS WHICH (NEES
HAS) NOT SATISFACTORILY OVERCOME IN THE RECORD."  THEN IT WENT ON TO
FIND THAT EVEN IF THE ESTIMATED $1,100,000 IN LOSS OF ECONOMIES WERE
ACCEPTED AS ACCURATE "IT WOULD NOT LEAD US TO CONCLUDE THAT SUCH A LOSS
IS SO SUBSTANTIAL, WHEN COMPARED WITH THE LOSS OF ECONOMIES INVOLVED IN
PRIOR DIVESTMENT CASES AND VIEWED IN LIGHT OF THE OBJECTIVES OF THE
ACT, AS TO WARRANT RETENTION OF THE GAS PROPERTIES . . . "  41
S.E.C.,AT 895, 897.  BECAUSE WE CONCLUDE THAT THE RECORD SUPPRTS THE
COMMISSION'S DECISION ON THE LATTER GROUND, WE HAVE NO OCCASION TO
CONSIDER WHETHER THE COMMISSION'S STRICTURES ON THE RELIABILITY OF THE
EBASCO STUDY ARE WELL FOUNDED. 

THE COMMISSION'S ULTIMATE FINDING THAT THE PROJECTED $1,100,000 LOSS
OF ECONOMIES ANNUALLY DID NOT CONSTITUTE A LOSS OF "SUBSTANTIAL"
ECONOMIES WITHIN CLUASE A OF SEC. 11(B)(1) WAS REACHED PRIMARILY UPON
THE BASIS OF ITS SUBSIDIARY FINDINGS UPON THREE MATTERS: (1) THAT NEES'
ESTIMATED LOSSES WERE NOT SIGNIFICANTLY OUT OF LINE WITH THOSE FOUND
INSUBSTANTIAL IN PREVIOUS CASES:  (2) THAT OTHER NONAFFILIATED
MASSACHUSETTS GAS COMPANIES, /9/  ALL BUT ONE OF THEM SMALLER THAN NEES
GAS SYSTEM, ARE APPARENTLY ABLE TO OPERATE SUCCESSFULLY WITHOUT
ELECTRIC UTILITY AFFILIATIONS; (3) THAT NEES DID NOT ESTABLISH THAT
INDEPENDENT MANAGEMENT DEVOTED SOLELY TO PROMOTING GAS SALES WOULD NOT
RESULT IN BENEFITS TO OFFSET SOME OF THE PROJECTED LOSSES.  THE COURT
OF APPEALS HELD THAT NONE OF THE THREE SUBSIDIARY FINDINGS WAS
SUPPORTED BY SUBSTANTIAL EVIDENCE.  WE DISAGREE. 

        I. 

THE COMMISSION, CONSISTENT WITH ITS PRACTICE IN PRIOR CASES, /10/
WEIGHED NEES' ESTIMATED $1,100,000 LOSSES IN RELATIVE RATHER THAN
ABSOLUTE TERMS, CALCULATING THE LOSSES AS A PERCENTAGE OF NEES' 1958
REVENUES, EXPENSES, AND INCOME.  /11/  IT FOUND THAT THESE LOSS RATIONS
TO BE "LOWER OR NOT SIGNIFICANTLY HIGHER THAN CORRESPONDING RATIOS OF
GAS SYSTEMS WHOSE DIVESTMENT WE HAVE REQUIRED ON THE GROUND THAT THE
ESTIMATED LOSS OF ECONOMIES WAS NOT SUBSTANTIAL WITHIN THE MEANING OF
CLAUSE A."  41 S.E.C.,AT 898.  THE CASES WITH WHICH THESE PARTICULAR
COMPARISONS WERE MADE INVOLVED COMPANIES OUTSIDE MASSACHUSETTS.  /12/
THE COURT OF APPEALS HELD THAT THE COMPARISONS WITH THE LOSS RATIOS OF
COMPANIES INVOLVED IN PRIOR CASES WERE "LARGELY IRRELEVANT" BECAUSE " .
. . THESE RATIOS ARE SIGNIFICANT ONLY AS THEY AFFECT THE INVESTMENT
STRUCTURE OF THE COMPANIES IN THE PARTICULAR CASE, AND DIFFERENT
COMPANIES MAY BE COMPARED ONLY ON THE ASSUMPTION THAT BOTH OPERATE AT
THE SAME LEVEL."  376 F.2D, AT 113, 115.  THE COURT'S ULTIMATE
CONCLUSION WAS THAT ONLY COSE ANALYSIS OF NEES' OWN "PARTICULAR
CIRCUMSTANCES" WAS RELEVANT TO THE COMMISSION'S INQUIRY. 

IT IS SIGNIFICANT, HOWEVER, THAT THE COURT OF APPEALS' CRITICISM OF
THE COMMISSION'S USE OF RATIOS RELIED HEAVILY ON THE COURT'S READING OF
THE STATISTICAL DATA IN EVIDENCE AS SHOWING THAT THE PROJECTED LOSS OF
ECONOMIES "WOULD DECREASE (NEES') RATE OF RETURN FROM 6.4 PER CENT IN
1959 TO 4.1 PER CENT ON THE PROJECTED BASIS," OR SOME 30% BELOW, "AN
AVERAGE RATE OF 5.9 PER CENT OF THE NONAFFILIATED MASSACHUSETTS GAS
COMPANIES . . . "  376 F.2D, AT 114.  BUT, AS THE COMMISSION HAS NOTED,
THE COURT'S COMPUTATION THAT THE SEPARATED COMPANIES WOULD REALIZE A
RETURN OF ONLY 4.1% CONTAINED A SERIOUS ERROR, FOR IT OVERLOOKED THE
ALLOWANCE TO BE MADE FOR INCOME TAX DEDUCTIONS GENERATED BY THE
PROJECTED LOSSES.  THE ACTUAL RATE OF RETURN TAKING SUCH DEDUCTIONS
INTO ACCOUNT WOULD BE A SIGNIFICANTLY HIGHER 5.2%.  /13/ 

IN ANY EVENT, WE MAY AGREE THAT THE RATIONS OF LOSSES OF REVENUES,
EXPENSES, AND INCOME ARE NECESSARILY AFFECTED BY DIFFERENCES IN CAPITAL
STRUCTURE, MANAGEMENT, MARKET POSITION, AND OTHER FACTORS.  BUT IT BY
NO MEANS FOLLOWS THAT THE COMMISSION'S COMPARISONS ARE FOR THAT REASON
IRRELEVANT TO THE DETERMINATION WHETHER A PROJECTED LOSS OF ECONOMIES
IS SO IMPORTANT AS TO CAUSE A SERIOUS IMPAIRMENT OF THE SEPARATED
SYSTEM.  IT WAS WELL WITHIN THE RANGE OF THE COMMISSION'S
ADMINISTRATIVE DISCRETION TO USE THE LOSS RATIOS, AS IT DID, "AS A
GUIDE IN ADJUDICATING THE PENDING CASE."  PHILADELPHIA CO., 28 S.E.C.
35, 50, N. 24.  THE COMMISSION IN ITS EXPERT JUDGMENT MAY SO EMPLOY
EVALUATIVE FACTORS IT CONSIDERS RELEVANT.  /14/ 

INDEED, NEES APPARENTLY RECOGNIZED THAT ITS BURDEN TO ESTABLISH THAT
ITS SITUATION COMES WITHIN CLAUSE A INCLUDED THE BURDEN OF SHOWING THAT
THE PROJECTED LOSS OF ECONOMIES WOULD BE MORE SERIOUS FOR ITS SEPARATED
SYSTEM THAN THE COMPARABLE LEVEL OF LOSSES IN THE OTHER CASES ALREADY
DECIDED BY THE COMMISSION.  RESPONDENT ATTEMPTED TO PROVE THAT THE GAS
SYSTEM'S DISTANCE FROM SOURCES OF SUPPLY GIVES IT ONLY A VERY NARROW
COMPETITIVE ADVANTAGE OVER OIL AS A FULE, AND, FURTHER, THAT THE
SYSTEM'S GROWTH POTENTIAL IS MORE LIMITED BY A LACK OF NEW HOUSING
EXPANSION IN THE AREA SERVICED BY THE GAS COMPANIES.  AS WE SHALL SEE
BELOW, THE COMMISSION GOUND THAT NEES HAD NOT MADE A CASE IN EITHER
RESPECT INSOFAR AS THOSE MATTERS BORE ON WHETHER THE PROJECTED LOSS OF
ECONOMIES THREATENED SERIOUS IMPAIRMENT OF THE SEPARATED SYSTEM. 

        II. 

THE COMMISSION'S RESORT TO DATA CONCERNING THE OPERATIONS OF THE
NONAFFILIATED MASSACHUSETTS GAS COMPANIES WAS A RESPONSE TO NEES'
ARGUMENT, SUPPORTED BY THE MASSACHUSETTS DEPARTMENT OF PUBLIC
UTILITIES, THAT THE PROJECTED LOSS OF ECONOMIES FROM SEPARATION OF THE
GAS SYSTEM WOULD REQUIRE THE GAS COMPANIES TO SEEK RATE INCREASES WHICH
MIGHT SERIOUSLY IMPAIR OR DESTROY ANY HOPE OF A SUCCESSFUL OPERATION. 
NATURAL GAS IN 1959 ENJOYED IN NEW ENGLAND THE SMALLEST PRICE ADVANTAGE
OVER OIL OF ANY SECTION OF THE COUNTRY.  THE ANNUAL DIFFERENTIAL WAS $7
OVER OIL FOR A TYPICAL NEW ENGLAND HOUSE COMPARED WITH $27 TO $118 IN
FAVOR OF GAS IN THE REST OF THE COUNTRY.  /15/  NEES CONTENDED THAT THE
PREDICTED RATE INCREASE WOULD SUBSTANTIALLY OR ENTIRELY ELIMINATE THE
GAS SYSTEM'S ALREADY NARROW PRICE ADVANTAGE OVER OIL COMPETITORS.  THE
COMMISSION'S ANSWER WAS TO INQUIRE ABOUT THE ECONOMIC HEALTH OF THE
ALREADY NONAFFILIATED MASSACHUSETTS GAS COMPANIES.  THE COMMISSION
FOUND THAT THESE COMPANIES WERE APPARENTLY ABLE TO EARN A FAIR RETURN
ALTHOUGH NOT ENJOYING THE SUPPOSED ADVANTAGES OF AFFILIATION WITH
ELECTRIC UTILITIES; AND IT COULD FIND NO EVIDENCR THAT THEY DID NOT
FACE THE SAME COMPETITIVE CONDITIONS AS NEES.  /16/  THE COMMISSION
FOUND FURTHER THAT, DESPITE NEES' INSISTENCE THAT ITS MARKET CONDITIONS
DIFFERED FROM THE NONAFFILIATED COMPANIES BECAUSE OF RELATIVE STAGNANT
FRANCHISE AREAS OFFERING LESS SALES GROWTH, /17/  THERE WAS NO EVIDENCE
THAT THIS WOULD PREVENT THE SEPARATED GAS SYSTEM-- WHICH WOULD EMERGE
AS THE SECOND LARGEST INDEPENDENT IN THE STATE-- FROM COMPETING AS
EFFECTIVELY AS THE SMALLER INDEPENDENTS WHO HAD LONG HELD THEIR OWN. 
FINALLY, THE COMMISSION NOTED THAT AFTER SEVERANCE THE GAS SYSTEM'S
OPERATING RATIO WOULD BE MORE FAVORABLE OR ONLY SLIGHTLY HIGHER THAN
THE RATIOS OF NINE INDEPENDENTS AND THEREFORE CONCLUDED THAT IT "WOULD
BE ENTERING THE REALM OF SPECULATION AT THIS TIME TO ASSUME THAT RATE
INCREASES WOULD ENSUE FROM SEVERANCE."  41 S.E.C.,AT 899.  /18/ 

THE COURT OF APPEALS REJECTED THE COMPARISON OF THESE OPERATING
RATIOS, AGAIN ON THE GROUND THAT SUCH RATIOS FAIL TO TAKE ACCOUNT OF
SPECIAL CHARACTERISTICS OF INDIVDUAL COMPANIES.  THE COURT OBSERVED
THAT SINCE ALL NEW ENGLAND GAS COMPANIES OPERATED ON A "SMALL CUSHION .
. . (THE SIGNIFICANCE OF THIS IS NOT NEGATED BY OBSERVING THAT NON-NEES
COMPANIES, THE ONLY ONES AFFECTED BY THE COMMISSION'S ORDER."  376
F.2D, AT 113.  THE COURT FURTHER HELD "IRRELEVANT THE COMPARISON OF
OPERATING RATIOS, SINCE A BUSINESS MAY OPERATE RELATIVELY EFFICIENTLY,
YET AT A LEVEL TOO LOW TO ATTRACT INVESTORS."  376 F.2D, AT 114, N.6. 
FOR THE REASONS ALREADY STATED FOR OUR DISAGREEMENT WITH THE COURT OF
APPEALS' VIEW OF THE COMMISSION'S USE OF OTHER RATIOS, WE DISAGREE THAT
THIS COMPARISON WAS EITHER IRRELEVANT OR OUTSIDE THE LIMITS OF THE
COMMISSION'S ADMINISTRATIVE DISCRETION.  THE DISCRETION AND EVALUATION
OF AN ECONOMIC PROJECTION IS A FUNCTION CONGRESS COMMITTED TO THE
COMMISSION, NOT THE COURTS.  A COURT MAY BELIEVE IT WOULD HAVE DONE THE
JOB DIFFERENTLY AND BETTER; BUT JUDICIAL INQUIRY MUST BE ADDRESSED TO
WHETHER WHAT THE COMMISSION DID IS FATAL TO ITS ULTIMATE CONCLUSION
THAT THE HOLDING COMPANY FAILED TO CARRY ITS BURDEN OF SHOWING A LOSS
OF "SUBSTANTIAL" ECONOMIES WITHIN THE MEANING OF CLAUSE A. IN ASSESSING
NEES' FORECAST OF THE NEED FOR RATE INCREASES BECAUSE OF THE PROJECTED
LOSS OF ECONOMIES, IT WAS PROPER FOR THE COMMISSION TO CONSIDER THE
PERFORMANCE OF OTHER MASSACHUSETTS GAS COMPANIES WHICH WERE ALREADY
OPERATING INDEPENDENTLY.  NEES WAS AFFORDED EVERY OPPORTUNITY TO
SUSTAIN ITS BURDEN OF SHOWING THAT THE SEPARATED GAS SYSTEM WOULD
WITHER INTO CRITICAL HEALTH DESPITE THE CONTRARY INFERENCES SUGGESTED
BY THE COMPARISON MADE BY THE COMMISSION.  IT CANNOT BE A BASIS FOR
FINDING ERROR THAT THE COMMISSION FOUND THE ATTEMPT UNPERSUASIVE, GIVEN
THE GAS SYSTEM'S SIZE, /19/  AND THE PROGNOSIS OF EFFICIENCIES
COMPARABLE TO THOSE ACHIEVED BY THE INDEPENDENTS.  /20/

     III. 

THE COMMISSION CONCEIVED THAT THE PROJECTED LOSS OF ECONOMIES WOULD
IN SOME MEASURE BE OFFSET BY ADVANTAGES REALIZED BY THE SEPARATED
SYSTEM UNDER THE DIRECTION OF "A MANAGEMENT SOLELY INTERESTED IN AND
DEVOTED TO THE GAS OPERATIONS . . ."  41 S.E.C.,AT 901.  NEES, AGAIN
SUPPORTED BY THE MASSACHUSETTS DEPARTMENT OF PUBLIC UTILITIES, TOOK THE
POSITION THAT ITS OPERATION OF THE COMPANIES HAD ALREADY ACHIEVED ALL
POSSIBLE BENEFITS OF INTERSERVICE COMPETITION.  THE COMMISSION FOUND
THE ARGUMENT UNPERSUASIVE, RELYING AGAIN ON A COMPARISON WITH THE
UNAFFILIATED MASSACHUSETTS GAS COMPANIES.  THIS WAS A COMPARISON OF THE
SALES PERFORMANCE OF THE GAS COMPANIES UNDER NEES MANAGEMENT WITH THE
SALES PERFORMANCES OF THE INDEPENDENTS.  ALL SEVEN OF THE COMPARABLE
INDEPENDENTS SHOWED SUBSTANTIALLY HIGHER GAS SALES AND REVENUES PER
CUSTOMER AND LOWER CUSTS TO CUSTOMERS.  /21/  THE COMMISSION FOUND
UNPERSUASIVE NEES' EXPLANATION THAT THIS WAS ACCOUNTED FOR BY THE
GREATER RESIDENTIAL GROWTH POTENTIAL OF THE AREAS SERVICED BY THE
INDEPENDENTS.  /22/ 

THE COURT OF APPEALS HELD THAT THE TEST OF "SERIOUS IMPAIRMENT"
UNDER CLAUSE A ALREADY TOOK ACCOUNT OF OFFSETTING BENEFITS TO BE
REALIZED FROM SEPARATION AND THEREFORE "THAT DONE, THE GENERAL JUDGMENT
HAS NO INDEPENDENT SIGNIFICANCE IN AN INDIVIDUAL CASE."  376 F.2D, AT
115 116.  WHATEVER THE MERIT OF THE GENERAL PREMISE, SEE NEES I, 384
U.S.,AT 184-185, WE UNDERSTAND THE COMMISSION'S FINDING TO HAVE BEEN
SIMPLY THAT THE PROJECTED $1,100,000 LOSS OF ECONOMIES DID NOT IN FACT
TAKE INTO ACCOUNT ANY OFFSETTING BENEFITS ON THE ASSUMPTION THAT JOINT
OPERATION HAD ALREADY ACHIEVED THE ADVANTAGES OF INDEPENDENCE.  SEE 41
S.E.C.,AT 900-901.  THE COMMISSION'S CONCLUSION THAT NEES' ASSUMPTION
WAS NOT PROVED HAS SUPPORT IN THE RECORD AND THE COURT OF APPEALS WAS
NOT JUSTIFIED IN REJECTING IT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT WITH DIRECTION TO ENTER A JUDGMENT AFFIRMING THE
COMMISSION'S ORDER. 

              IT IS SO ORDERED. 

/1/  49 STAT. 812, 15 U.S.C. 79E. 

/2/  AT THE TIME OF THIS PROCEEDING, THE INTEGRATED ELECTRIC UTILITY
SYSTEM CONSISTED OF SEVEN ELECTRIC UTILITY COMPANIES SERVING PARTS OF
NEW HAMPSIRE, MASSACHUSETTS, RHODE ISLAND, AND CONNECTICUT.  THE
INTEGRATED GAS UTILITY SYSTEM CONSISTED OF EIGHT MASSACHUSETTS GAS
COMPANIES.  NEES ALSO CONTROLLED A SERVICE COMPANY WHICH PROVIDED
SERVIDES FOR THE WHOLE NEES OPERATIONS. 

/3/  SECTION 11(B) OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF
1935, 49 STAT. 820, 15 U.S.C. 79DB), PROVIDES IN PERTINENT PART:  "IT
SHALL BE THE DUTY OF THE COMMISSION, AS SOON AS PRACTICABLE AFTER
JANUARY 1, 1938: 

"(1) TO REQUIRE BY ORDER, AFTER NOTICE AND OPPORTUNITY FOR HEARING,
THAT EACH REGISTERED HOLDING COMPANY, AND EACH SUBSIDIARY COMPANY
THEREOF, SHALL TAKE SUCH ACTION AS THE COMMISSION SHALL FIND NECESSARY
TO LIMIT THE OPERATIONS OF THE HOLDING-COMPANY SYSTEM OF WHICH SUCH
COMPANY IS A PART TO A SINGLE INTEGRATED PUBLIC-UTILITY SYSTEM . . .:
PROVIDED, HOWEVER, THAT THE COMMISSION SHALL PERMIT A REGISTERED
HOLDING COMPANY TO CONTINUE TO CONTROL ONE OR MORE ADDITIONAL
INTEGRATED PUBLIC-UTILITY SYSTEMS, IF, AFTER NOTICE AND OPPORTUNITY FOR
HEARING, IT FINDS THAT-- 

"(A) EACH OF SUCH ADDITIONAL SYSTEMS CANNOT BE OPERATED AS AN
INDEPENDENT SYSTEM WITHOUT THE LOSS OF SUBSTANTIAL ECONOMIES WHICH CAN
BE SECURED BY THE RETENTION OF CONTROL BY SUCH HOLDING COMPANY OF SUCH
SYSTEM . . . " 

/4/  ON REMAND, THE COURT OF APPEALS INTERPRETED THE "SERIOUS
IMPAIRMENT" STANDARD AS REQUIRING PROOF ONLY OF "A CONDITION ALLOWING
SURVIVAL BUT NOT ON A SOUND OR 'HEALTHFUL CONTINUING' BASIS," RATHER
THAN PROOF THAT SEVERANCE "WILL RESULT IN IMMINENT BANKRUPTCY . . . "
376 F.2D, AT 109.  THE COMMISSION HAS NOT CONTESTED THIS INTERPRETATION
IN THIS COURT. 

/5/  "BY FOSTERING COMPETITION BETWEEN GAS AND ELECTRIC UTILITY
COMPANIES, THE ACT PROMOTES WHAT HAS BEEN DESCRIBED AS 'VARIEGATED
COMPETITION.'"  NEES I, 384 U.S.,AT 184, N.15. 

/6/  THE FOLLOWING PASSAGE IS FROM THE COURT'S OPINION ON REMAND: 

"EVEN WITHOUT THE BURDEN OF PROVING LIKELY DEMISE, (NEES') BURDEN
IS, AS THE COURT SAID, TO MEET 'A MUCH MORE STRINGENT TEST' THAN THAT
OF A PROBABLE SIGNIFICANT LOSS.  BUT, IF THE STANDARD TO BE APPLIED TO
(NEES) IS STRINGENT, SO IS THE LEVEL OF ANALYSIS AND EXPERTISE TO BE
EXERCISED BY THE COMMISSION.  WE HAVE, ONLY AFTER A FRESH REVIEW OF ALL
THE EVIDENCE IN THE LIGHT OF THIS MOST STRINGENT PRACTICAL STANDARD,
CONCLUDED THAT THE COMMISSION'S OPINION DOES NOT REVEAL THAT
APPLICATION OF BOTH REASON AND EXPERIENCE TO FACTS WHICH MERITS
ENDORSEMENT AS THE RESPONSIBLE EXERCISE OF EXPERTISE."  376 F.2D, AT
111. 

/7/  THIS WAS THE LATEST YEAR FOR WHICH AUDITED FINANCIAL STATEMENTS
WERE AVAILABLE AT THE TIME OF THE HEARING BEFORE THE COMMISSION.  41
S.E.C.,AT 889, N.3. 

/8/  ALL BUT ONE OF THE EIGHT COMPANIES ARE LOCATED WITHIN 48 MILES
OF THE DIVISION HEADQUARTERS; ONE IS 80 MILES AWAY. 

/9/  "NONAFFILIATED" OR "INDEPENDENT" REFERS TO GAS COMPANIES NOT
HAVING ANY ELECTRIC AFFILIATIONS AND GAS COMPANIES NOT JOINTLY OPERATED
WITH ELECTRIC COMPANIES SERVING THE SAME FRANCHISE AREA. 

/10/  E.G., PHILADELPHIA CO., 28 S.E.C. 35, 50 52 (1948); GENERAL
PUB. UTIL.  CORP., 32 S.E.C. 807, 837 (1951). 

/11/  THE LOSSES WOULD AMOUNT TO:  4.8% OF OPERATING REVENUES; 6.0%
OF OPERATING REVENUE DEDUCTIONS (EXCLUDING FEDERAL INCOME TAXES); 23.3%
OF GROSS INCOME (BEFORE FEDERAL INCOME TAXES); 29.9% OF NET INCOME
(BEFORE TAXES). 

/12/  SEE ENGINEERS PUB. SERVICE CO., 12 S.E.C. 41, 55-61, 78-81
(1942); NORTH AMER.  CO., 18 S.E.C. 611 (1945); PHILADELPHIA CO., 28
S.E.C. 35, 45-53 (1948); GENERAL PUB. UTIL.  CORP., 32 S.E.C. 807, 814
815, 823-839 (1951).  MIDDLE SO. UTIL., INC., 35 S.E.C. 1 (1953), 36
S.E.C. 383 (1955).  THE RELEVANT FINANCIAL DATA FOR EACH CASE ARE
SUMMARIZED IN AN APPENDIX TO THE COMMISSION'S OPINION.  41 S.E.C., AT
905. 

/13/  RATE OF RETURN IS THE PERCENTAGE OF NET OPERATING INCOME TO
THE RATE BASE, WHICH IS FIXED BY A FORMULA TIED GENERALLY TO THE VALUE
OF CAPITAL ASSETS.  THE SOURCE OF THE 4.1% FIGURE APPEARS TO HAVE BEEN
THE COURT OF APPEALS.  THE 4.1% WAS APPARENTLY DERIVED AS FOLLOWS:
(TABLE OMITTED) HOWEVER, THE $1,100,000 PROJECTED LOSS WOULD GENERATE
INCOME TAX DEDUCTIONS OF ROUGHLY 50% INCREASING THE NUMERATOR OF THE
FRACTION (C) FROM $1,952,388 TO $2,501,688, AND THE RATE OF RETURN TO
5.2%.  THE NEES BRIEF RELIES ON THE 4.1% FIGURE, BUT NEES HAS NOT
CHALLENGED THE COMMISSION'S RECALCULATION. 

THE 1959 RATES OF RETURN FOR THE COMPARABLE NONAFFILIATED
MASSACHUSETTS COMPANIES WERE AS FOLLOWS:  (TABLE OMITTED) (RESP.  EX.
117; R. 1436.) 

/14/  ALTHOUGH THE PARTIES ARE IN DISPUTE AS TO THE VALIDITY OF SOME
OF THE DATA DRAWN FROM THE PREVIOUS CASES, WE DO NOT CONSIDER IT
NECESSARY TO BECOME INVOLVED IN THAT CONTROVERSY.  SUFFICE IT TO SAY
THAT WE DO NOT THINK THE COMMISSION IN LOOKING TO THE DATA FOR GUIDANCE
EXCEEDED THE BOUNDS OF REASON OR ADMINISTRATIVE DISCRETION. 

/15/  GAS TO NEW ENGLAND WAS PIPED ALL THE WAY FROM TEXAS, WHEREAS
OIL WAS SHIPPED IN BY TANKER.  NEES ESTIMATED THE AVERAGE HOME HEATING
COST TO BE $166 FOR GAS, $173 FOR OIL; AND IT WAS IN RESIDENTIAL SPACE
HEATING THAT NEES FOUND ITS CHIEF MARKET. 

/16/  NEES CALCULATED THE COMPOSITE RATE OF RETURN FOR ITS GAS
SYSTEM AT 6.6% FOR 1958 AND 6.4% FOR 1959.  (RESP.  EX. 114; R. 1431.) 
THE AVERAGE FOR SEVEN COMPARABLE INDEPENDENTS WAS 6.3% IN 1958 AND 5.9%
IN 1959.  (RESP.  EX. 117; R. 1436.) 

/17/  NEES CITES AS PRIME EVIDENCE IN THIS REGARD THE TESTIMONY OF
ROBERT CAHAL, AN EBASCO MARKETING CONSULTANT WHO HAD TO SOME EXTENT
ANALYZED THE THE MARKETING CONDITIONS NEES FACED.  THE SUBSTANCE OF HIS
TESTIMONY WAS THAT (A) GAS AND OIL ARE HIGHLY COMPETITIVE IN THE STATE,
WITH OIL BEING WELL ENTRENCHED IN MANY AREAS SO THAT THE MAJOR SOURCE
OF GROWTH HAS TO BE IN NEW RESIDENT CONSTRUCTION; (B) IN MASSACHUSETTS
GROWTH IS IN THE SUBURBS WITH TOWNS PROPER BEING RELATIVELY STAGNANT;
(C) GAS COMPANIES ARE LIMITED BY THEIR FRANCHISE AREA, PRISONERS OF THE
CHARACTERISTICS OF THEIR PARTICULAR COMMUNITIES; (D) THE INDEPENDENTS
ARE NOT NECESSARILY COMPARABLE WITH NEES BECAUSE THEY MAY BE IN AREAS
OF HIGHER GROWTH; (E) INDEPENDENTS HAVING SUCH AREAS IN HAVERHILL,
LOWELL, SPRINGFIELD, WORCESTER, BROCKTON-TAUNTON; ALL OF THEM HAVING
GROWTH GREATER (BUT UNSPECIFIED AS TO DEGREE) THAN ANY NEES GAS COMPANY
EXCEPT NORWOOD. 

THE COMMISSION NOTED, WITHOUT COMMENT, THAT THE POPULATION INCREASE
IN NEES' FRANCHISE AREAS BETWEEN 1950 AND 1960 WAS ONLY 11% AS COMPARED
WITH 18% IN THE AREAS OF SEVEN INDEPENDENTS.  41 S.E.C.,AT 899, N. 23. 

/18/  THE OPERATING RATIO IS "THE PERCENTAGE OF TOTAL OPERATING
REVENUE DEDUCTIONS (OTHER THAN DEPRECIATION, AMORTIZATION OF
CONVERSATION COSTS, AND FEDERAL INCOME TAXES) TO TOTAL OPERATING
REVENUES."  41 S.E.C.,AT 899, N. 25.  THE RATIO "AFFORDS A MEASURE FOR
DETERMINING THE EFFICIENCY WITH WHICH THE ENTERPRISE IS CONDUCTED AND
WHILE ITS VALUE IS GREATER IN COMPARING THE YEAR TO YEAR TREND IT HAS A
LIMITED USE IN COMPARING VERY SIMILAR ENTERPRISES."  MOODY'S PUBLIC
UTILITY MANUAL IX (1967).  NEES' RATIO WAS FIXED AT 76.41%, AS WELL AS
THEIR MEDIAN AND MEAN RATIOS OF 74.87% AND 76.35% RESPECTIVELY. 
INDIVIDUAL RATIOS ARE CITED AT 41 S.E.C.,AT 899, N. 26. 

/19/  THE COMMISSION MAY PROPERLY REGARD SIZE OF OPERATION TO BE A
RELEVANT FACTOR.  ONE OF CONGRESS' CONCERNS IN PROVIDING THE EXCEPTION
INVOLVED HERE WAS TO PROTECT SMALL COMPANIES LIKELY TO FAIL IF
SEPARATED FROM THE PARENT HOLDING COMPANY.  CF. NEES I, 384 U.S.,AT
181; NORTH AMER.  CO. V. SEC., 327 U.S. 686, 697.  SEE ALSO H.R. REP.
NO. 1903, 74TH CONG., 1ST SESS., 68-71; S. DOC. NO. 92, 70TH CONG., 1ST
SESS., PT. 72-A, AT 831, 835.  AND NEES' SIZE, ESPECIALLY GIVEN ITS
RELATIVELY COMPACT FRANCHISE AREA, IS SOME INDICATION OF ITS
COMPETITIVE POSITION. 

/20/  SEE N. 18, SUPRA, AND ACCOMPANYING TEXT. 

/21/  THE BREAKDOWN WAS AS FOLLOWS:  (TABLE OMITTED) EQUIVALENT DATA
FOR THE NORWOOD GAS COMPANY, THE NEES SUBSIDIARY ASSERTED TO HAVE
GROWTH POTENTIAL COMPARABLE TO THE INDEPENDENTS, SEE N. 17, SUPRA, WERE
AS FOLLOWS (1958 AND (1959) FIGURES): SALES-- 51.8 AND 60.4
MCF/CUSTOMER; REVENUES-- $112.59 AND $125.66/CUSTOMER; COST TO
CUSTOMERS-- $2.17 AND $2.08/MCF.  41 S.E.C.,AT 901, NN. 29-30.  SEE R.
1446-1447, 1449-1450.     /22/  "(NO SPECIFIC DEMONSTRATION OF THE
EXISTENCE OR EXTENT OF SUCH A CASUAL RELATION WAS PRESENTED."  41
S.E.C.,AT 901.  SEE ALSO N. 21, SUPRA. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

GIVEN THE EARLIER DECISION OF THE COURT IN THIS CASE, SEC V. NEW
ENGLAND ELECTRIC SYSTEM, 384 U.S. 176, WHICH I CONTINUE TO BELIEVE
WRONGLY CONSTRUED THE STATUTE BUT BY WHICH I CONSIDER MYSELF BOUND, I
JOIN TODAY'S OPINION OF THE COURT. 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ROBERT S. RIFKIND, PHILIP A.
LOOMIS, JR., DAVID FERBER, ROGER S. FOSTER AND RICHARD E. NATHAN. 

JOHN R. QUARLES ARGUED THE CAUSE FOR RESPONDENTS.  WITH HIM ON THE
BRIEF WERE RICHARD B. DUNN, RICHARD W. SOUTHGATE AND JOHN J. GLESSNER
III. 

GEORGE SPIEGEL FILED A BRIEF FOR THE MUNICIPAL ELECTRIC ASSOCIATION
OF MASSACHUSETTS, AS AMICUS CURIAE, URGING REVERSAL. 
..END :
























UNITED STATES V. HABIG, 390 U.S. 222 


       UNITED STATES V. HABIG ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           SOUTHERN DISTRICT OF INDIANA. 

        NO. 107.  ARGUED JANUARY 17, 1968.-- DECIDED MARCH 5,
1968. 


WHERE ALLEGEDLY FALSE TAX RETURNS WERE FILED AFTER THE STATUTORY DUE
DATE (EXTENSIONS HAVING BEEN GRANTED), THE APPLICABLE STATUTE OF
LIMITATIONS (26 U.S.C. 6531) HELD TO RUN FROM THE DATES THE ALLEGED
OFFENSES WERE COMMITTED, I.E., THE DATES ON WHICH THE RETURNS WERE
FILED, NOT FROM THE STATUTORY DUE DATE.  PP. 224-227. 

270 F.SUPP.  929, REVERSED AND REMANDED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

APPELLEES WERE INDICTED FOR CRIMES RELATING TO ALLEGEDLY FALSE INCOME
TAX RETURNS.  THE DISTRICT COURT DISMISSED COURTS 4 AND 6 OF THE
INDICTMENT, CHARGING AN ATTEMPT TO EVADE TAXES BY FILING OF A FALSE
RETURN (26 U.S.C. 7201) AND AIDING IN THE PREPARATION AND PRESENTATION
OF A FALSE RETURN (26 U.S.C. 7206(2), ON THE GROUND THAT THE SIX-YEAR
STATUTE OF LIMITATIONS, 26 U.S.C. 6531, BARRED PROSECUTION UNDER THOSE
COUNTS.  270 F.SUPP.  929.  THE UNITED STATES FILED NOTICE OF APPEAL TO
THIS COURT UNDER 18 U.S.C. 3731.  WE NOTED PROBABLE JURISDICTION.  389
U.S. 810. 

THE QUESTION PRESENTED IS THE CONSTRUCTION OF SECS. 6531 AND 6513(A)
OF THE INTERNAL REVENUE CODE OF 1954 (26 U.S.C. 6531 AND 6513(A)).  IT
IS SQUARELY RAISED BY THE FACTS OF THIS CASE.  THE INDICTMENT WAS FILED
ON AUGUST 12, 1966.  THE INCOME TAX RETURNS INVOLVED IN COUNTS 4 AND 6
WERE FILED ON AUGUST 12 AND 25, 1960.  SECTION 6531 LIMITS THE TIME
WHEN INDICTMENTS MAY BE FILED FOR THE CHARGED OFFENSES TO SIX YEARS
"NEXT AFTER THE COMMISSION OF THE OFFENSE." 

THE OFFENSES INVOLVED IN COUNTS 4 AND 6 ARE COMMITTED AT THE TIME
THE RETURN IS FILED.  SEE, E.G., SWALLOW V. UNITED STATES, 307 F.2D 81,
83 (C.A. 10TH CIR. 1962); BENHAM V. UNITED STATES, 215 F.2D 472, 473
(C.A. 5TH CIR. 1954); BUTZMAN V. UNITED STATES, 205 F.2D 343, 350-351
(C.A.6TH CIR. 1953); UNITED STATES V. YEOMAN-HENDERSON, INC. 193 F.2D
867, 869 (C.A. 7TH CIR. 1953); UNITED STATES V. CROESSANT, 178 F.2D 96,
98 (C.A. 3D CIR. 1949); CAVE V. UNITED STATES, 159 F.2D 464, 467 (C.A.
8TH CIR. 1947).  SIX YEARS HAD NOT QUITE ELAPSED FROM THE COMMISSION OF
THE CRIMES IN THE PRESENT CASE TO THE FILING OF THE INDICTMENT. 
APPELLEES DO NOT CONTEST THE CHRONOLOGICAL CALCULATION.  BUT BECAUSE OF
SEC. 6513(A) OF THE CODE, THEY SAY THAT THE CRITICAL DATE HERE IS NOT
THE DATE WHEN THE RETURNS WERE ACTUALLY FILED BUT THE DATE WHEN THEY
WERE INITIALLY DUE TO BE FILED, VIZ., MAY 15, AND NOT AUGUST 15, 1960. 

THE BASIS FOR THIS CONTENTION IS AS FOLLOWS:  SECTION 6531, WHICH
PRESCRIBES THE SIX-YEAR PERIOD OF LIMITATIONS ALSO SAYS THAT "(FOR THE
PURPOSE OF DETERMINING (SUCH) PERIODS OF LIMITATION . . . THE RULES OF
OF MAY 15, 1960, THE CORPORATIONS OBTAINED EXTENSIONS OF TIME TO AUGUST
15, 1960.  ACCORDINGLY, IF THE SIX-YEAR PERIOD OF LIMITATIONS RUNS NOT
FROM THE DATE OF ACTUAL FILING (AUGUST 12 AND 15, 1960) BUT FROM THE
ORIGINAL DUE DATE OF THE RETURNS (MAY 15, 1960), THE INDICTMENT, HAVING
BEEN FILED ON AUGUST 12, 1966, WAS SEVERAL MONTHS TOO LATE. 


        "SECTION 6513.  TIME RETURN DEEMED FILED AND TAX CONSIDERED

           PAID. 

     "(A) EARLY RETURN OR ADVANCE PAYMENT OF TAX.-- FOR PURPOSES OF

  SECTION 6511 (RELATING TO CLAIMS FOR CREDIT OR REFUND), ANY

  RETURN FILED BEFORE THE LAST DAY PRESCRIBED FOR THE FILING

  THEREOF SHALL BE CONSIDERED AS FILED ON SUCH LAST DAY.  FOR

  PURPOSES OF SECTION 6511(B)(2) AND (C) AND SECTION 6512 (RELATING

  TO SUITS IN THE TAX COURT), PAYMENT OF ANY PORTION OF THE TAX

  MADE BEFORE THE LAST DAY PRESCRIBED FOR THE PAYMENT OF TAX SHALL

  BE CONSIDERED MADE ON SUCH LAST DAY.  FOR PURPOSES OF THIS

  SUBSECTION, THE LAST DAY PRESCRIBED FOR FILING THE RETURN OR

PAYING THE TAX SHALL BE DETERMINED WITHOUT REGARD TO ANY

EXTENSION OF TIME GRANTED THE TAXPAYER AND WITHOUT REGARD TO ANY

  ELECTION TO PAY THE TAX IN INSTALLMENTS." 

APPELLEES' ARGUMENT IS THAT BY REASON FOR THE THIRD SENTENCE OF SEC.
6513(A), THE STARTING DATE FOR COMPUTING THE SIX-YEAR LIMITATIONS
PERIOD IS TO BE DETERMINED BY THE ORIGINAL DUE DATE OF THE RETURN, MAY
15, 1960, "WITHOUT REGARD TO ANY EXTENSION OF THE TIME GRANTED THE
TAXPAYER."  THE DISTRICT COURT AGREED.  IN OTHER CASES, THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT, HULL . UNITED STATES, 356 F.2D 919
(1966), AND THE DISTRICT COURTS FOR THE NORTHERN DISTRICT OF OHIO,
UNITED STATES V. DOELKER, 211 F.SUPP.  663 (1962), AND THE DISTRICT OF
NEW JERSEY, UNITED STATES V. ALPER, 200 F.SUPP.  155 (1961), HAVE SO
HELD.  THE DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO HAS ARRIVED AT
THE CONTRARY RESULT.  UNITED STATES V. HENSLEY, 257 F.SUPP.  987
(1966). 

ON THE OTHER HAND, THE GOVERNMENT ARUGES THAT APPELLEES' CONTENTION,
DESPITE ITS SUPPORT IN THE DECISIONS OF SEVERAL COURTS, IS NECESSARILY
BASED UPON THE SURPRISING ASSERTION THAT CONGRESS INTENDED THE
LIMITATIONS PERIOD TO BEGIN TO RUN BEFORE APPELLEES COMMITTED THE ACTS
UPON WHICH THE CRIMES WERE BASED.  IT ARGUES THAT THIS RESULT CANNOT BE
SQUARED WITH THE LANGUAGE OF THE CODE OR THE INTENT OF CONGRESS.  WE
PERFORCE AGREE WITH THE GOVERNMENT'S ANALYSIS. 

APPLY WHEN A RETURN IS FILED OR A TAX IS PAID BEFORE THE STATUTORY
DEADLINE.  THE FIRST TWO SENTENCES PROVIDE THAT THE LIMITATIONS PERIODS
ON CLAIMS FOR REFUNDS AND TAX SUITS (26 U.S.C. 6511, 6512), WHEN THE
RETURN HAS BEEN FILED OR PAYMENT MADE IN ADVANCE OF THE DATE
"PRESCRIBED" THEREFOR, SHALL NOT BEGIN TO RUN ON THE EARLY DATE, BUT ON
THE "PRESCRIBED" DATE.  THE THIRD SENTENCE STATES THAT, FOR "PURPOSES
OF (THE) SUBSECTION," THE DATE "PRESCRIBED" FOR FILING OR PAYMENT SHALL
BE DETERMINED ON THE BASIS FIXED BY STATUTE OR REGULATIONS, WITHOUT
REGARD TO ANY EXTENSION OF TIME.  THE NET EFFECT OF THE LANGUAGE IS TO
PROLONG THE LIMITATIONS PERIOD WHEN, AND ONLY WHEN, A RETURN IS FILED
OR TAX PAID IN ADVANCE OF THE STATUTORY DEADLINE. 

THERE IS NO REASON TO BELIEVE THAT SEC. 6531, BY REFERENCE TO THE
"RULES OF SECTION 6513" EXPANDS THE EFFECT AND OPERATION OF THE LATTER
BEYOND ITS OWN TERMS SO AS TO MAKE IT APPLICABLE TO SITUATIONS OTHER
THAN THOSE INVOLVING EARLY FILING OR ADVANCE PAYMENT.  THE REFERENCE TO
SEC. 6513 IN SEC 6531 EXTENDS THE PERIOD WITHIN WHICH CRIMINAL
PROSECTUION MAY BE BEGUN ONLY WHEN THE LIMITATIONS PERIOD WOULD ALSO BE
EXTENDED FOR THE REFUNDS AND TAX SUITS EXPRESSLY DEALT WITH IN SEC.
6513-- ONLY WHEN THERE HAS BEEN EARLY FILING OR ADVANCE PAYMENT.  IN
OTHER WORDS, IF A TAXPAYER ANTICIPATES THE APRIL 15 FILING DATE BY
FILING HIS RETURN ON JANUARY 15, THE SIX-YEAR LIMITATIONS PERIOD FOR
PROSECUTIONS UNDER SEC. 6531 COMMENCES TO RUN ON APRIL 15. 
PRACTICALLY, THE EFFECT OF THE REFERENCE TO SEC. 6513 IN SEC. 6531 IS
TO GIVE THE GOVERNMENT THE ADMINISTRATIVE ASSISTANCE FOR PURPOSES OF
ITS CRIMINAL TAX INVESTIGATIONS, OF A UNIFORM EXPIRATION DATE FOR MOST
TAXPAYERS, DESPITE VARIATIONS IN THE DATES OF ACTUAL FILING. 

THE LEGISLATIVE HISTORY SUPPORTS THIS READING.  THE FIRST
PREDECESSOR OF SEC. 6513(A) WAS ENACTED IN 1942.  SEE SEC. 332(B)(4) OF
THE 1939 CODE, ADDED BY ACT OF OCTOBER 21, 1942, C. 619, SEC. 169(A),
56 STAT. 877.  THIS SECTION APPLIED ONLY TO CIVIL INCOME TAX REFUND
PROCEEDINGS.  THE REPORT OF THE HOUSE WAYS AND MEANS COMMITTEE (H.R.
REP. NO. 2333, 77TH CONG., 2D SESS., 119) STATES:

     "IF THE TAXPAYER FILES HIS RETURN BEFORE THE LAST DAY ON WHICH

  IT IS DUE, THE PERIOD IN WHICH HE CAN FILE A CLAIM FOR REFUND

 UNDER THE PROVISIONS OF SECTION 322(B)(1), MEASURED FROM THE DATE

  THE RETURN WAS FILED, WILL EXPIRE SOONER THAN WOULD BE THE CASE

  IF HE WAITED UNTIL SUCH LAST DAY.  SECTION 150 OF THE BILL ADDS

  PARAGRAPH (4) TO SECTION 322(B) TO PROVIDE THAT THE PERIOD OF

  LIMITATIONS WITH RESPECT TO CREDIT OR REFUND IS MEASURED FROM THE

  LAST DAY PRESCRIBED FOR THE FILING OF THE RETURN IN CASES WHERE

  THE RETURN IS FILED BEFORE SUCH LAST DAY.  THIS PROVISION DOES

  NOT APPLY TO TAXPAYERS WHO ARE GIVEN THE BENEFIT OF AN EXTENSION

  OF TIME IN WHICH TO FILE THEIR RETURNS, AND FILE THE RETURN

  BEFORE THE LAST DAY OF THE EXTENDED PERIOD . . . "

ACCORD, S. REP. NO. 1631, 77TH CONG., 2D SESS., 156.  THEN, IN ADOPTING
THE 1954 CODE, THE CONTESTED REFERENCE TO SEC. 6513 WAS ADDED TO SEC.
6531.  THE HOUSE AND SENATE REPORTS EXPRESSLY CONFIRMED THAT THE SEC.
6513 STILL ENCOMPASSED "THE EXISTING . . . RULE AS TO EARLY RETURNS AND
ADVANCE PAYMENT."  H.R. REP. NO. 1337, 83D CONG., 2D SESS., A 416; S.
REP. NO. 1622, 83D CONG., 2D SESS., 587. 

THE LANGUAGE OF SEC. 6513(A) DOES NOT PURPORT TO APPLY WHEN A RETURN
IS FILED DURING AN EXTENSION OF TIME.  THE LEGISLATIVE HISTORY IS TO
THE SAME EFFECT.  ACCORDINGLY, ALTHOUGH WE REITERATE THE PRINCIPLE THAT
CRIMINAL LIMITATIONS STATUTES ARE "TO BE LIBERALLY INTERPRETED IN FAVOR
OF REPOSE," UNITED STATES V. SCHARTON, 285 U.S. 518, 522 (1932), WE
CANNOT READ THE STATUTE AS APPELLEES URGE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS. 

              REVERSED AND REMANDED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

HARRIS WEINSTEIN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL ROGOVIN, JOSEPH M. HOWARD AND VINCENT P. RUSSO. 

LESTER M. PONDER ARUGED THE CAUSE FOR APPELLESS.  WITH HOM ON THE
BRIEF WERE ANTON DIMITROFF AND FRED P. BAMBERGER. 
..END :



UNITED STATES V. NEIFERT-WHITE CO., 390 U.S. 228 


       UNITED STATES V. NEIFERT-WHITE CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

    NINTH CIRCUIT. 

        NO. 267.  ARGUED JANUARY 18, 1968.-- DECIDED MARCH 5,
1968. 


THE FALSE CLAIMS ACT, WHICH WAS ENACTED "BROADLY TO PROTECT THE FUNDS
AND PROPERTY OF THE GOVERNMENT FROM FRAUDULENT CLAIMS, REGARDLESS OF
THE PARTICULAR FORM, OR FUNCTION, OF THE GOVERNMENTAL INSTRUMENTALITY
UPON WHICH SUCH CLAIMS WERE MADE," RAINWATER V. UNITED STATES, 356 U.S.
590, 592 (1958), HELD TO APPLY TO THE SUPPLYING OF FALSE INFORMATION IN
SUPPORT OF AN APPLICATION TO THE COMMODITY CREDIT CORPORATION FOR A
LONA.  PP. 229-233. 

372 F.2D 372, REVERSED AND REMANDED. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BY THE UNITED STATES TO RECOVER STATUTORY
FORFEITURES UNDER THE FALSE CLAIMS ACT.  /1/  THE QUESTION IS WHETHER
THE ACT APPLIES TO THE SUPPLYING OF FALSE INFORMATION IN SUPPORT OF AN
APPLICATION TO A FEDERAL AGENCY, THE COMMODITY CREDIT CORPORATION
(CCC), FOR A LOAN.  THE DISTRICT COURT DISMISSED THE ACTION ON THE
GROUND THAT AN APPLICATION FOR A CCC LOAN, AS DISTINGUISHED FROM A
CLAIM FOR PAYMENT OF AN OBLIGATION OWED BY THE GOVERNMENT, IS NOT A
"CLAIM: WITHIN THE MEANING OF THE ACT.  THE COURT OF APPEALS FOR THE
NINTH CIRCUIT AFFIRMED.  WE GRANTED CERTIORARI.  389 U.S. 814 (1967). 

THE CCC IS AUTHORIZED TO MAKE LOANS TO GRAIN GROWERS TO FINANCE THE
CONSTRUCTION OR PURCHASE OF STORAGE FACILITIES.  SEC. 4(H) OF THE
COMMODITY CREDIT CORPORATION CHARTER ACT, AS AMENDED, 62 STAT. 1071, 15
U.S.C. 714BH).  PURSUANT TO ITS AUTHORITY UNDER STATUTE, 15 U.S.C.
714BD), THE CCC HAS ADOPTED REGULATIONS PROVIDNG FOR THE GRANTING OF
LOANS IN AMOUNTS NOT TO EXCEED 80% OF THE ACTUAL PURCHASE PRICE OF
STORAGE BINS.  A GRAIN GROWER WHO DESIRES TO APPLY FOR A LOAN IS
REQUIRED TO SUPPORT HIS APPLICATION BY AN INVOICE SHOWING THE PURCHASE
PRICE AND THE AMOUNT OF THE DOWN PAYMENT MADE BY HIM.  23 FED.REG. 
9687. 

SINCE THE GOVERNMENT'S COMPLAINT WAS DISMISSED FOR FAILURE TO STATE
A CAUSE OF ACTION, THE ALLEGATIONS OF THE COMPLAINT MUST BE TAKEN AS
TRUE FOR PRESENT PURPOSES.  ACCORDING TO THE COMPLAINT, RESPONDENT IS A
DEALER IN GRAIN STORAGE BINS.  IN 1959, IN SELLING BINS TO 12 GRAIN
FRAMERS, ONE OF RESPONDENT'S OFFICERS PREPARED INVOICES IN WHICH THE
PURCHASE PRICE WAS DELIBERATELY OVERSTATED.  THE PURPOSE WAS
FRAUDULENTLY TO INDUCE THE CCC TO EXTEND LOANS TO RESPONDENT'S
CUSTOMERS IN AMOUNTS EXCEEDING 80% OF THE ACTUAL PURCHASE PRICE.  THE
INVOICES WERE SUBMITTED TO THE CCC ALONG WITH THE LOAN APPLICATIONS,
AND THE AGENCY RELIED ON THE OVERSTATED PURCHASE PRICE IN DETERMINING
THE AMOUNT OF LOANS THAT WERE SUBSEQUENTLY MADE.  THE UNITED STATES
CLAIMS THE STATUTORY FORFEITURE OF $2,000 FOR EACH OF THE 12 ALLEGED
VIOLATIONS OF THE ACT. 

THE ISSUE IN THIS CASE IS NARROW AND PRECISE:  DOES THE FALSE CLAIMS
ACT REACH "CLAIMS" FOR FAVORABLE ACTION BY THE GOVERNMENT UPON
APPLICATIONS FOR LAONS OR IS IT CONFINED TO "CLAIMS" FOR PAYMENTS DUE
AND OWING FROM THE GOVERNMENT?  /2/  IT IS RESPONDENT'S POSITION THAT
THE TERM "CLAIMS" IN THE ACT MUST BE READ IN ITS NARROW SENSE TO
INCLUDE ONLY A DEMAND BASED UPON THE GOVERNMENT'S LIABILITY TO THE
CLAIMANT.  RESPONDENT RELIES UPON UNITED STATES V. COHN, 270 U.S. 339
(1926), AND UNITED STATES V. MCNINCH, 356 U.S. 595 (1958), TO SUPPORT
THIS NARROW READING. 

COHN INVOLVED A CRIMINAL PROCEEDING UNDER AN EARLIER VERSION OF THE
PRESENT FALSE CLAIMS ACT.  /3/  IT CONCERNED A FRAUDULENT APPLICATION
TO OBTAIN THE RELEASE OF MERCHANDISE WHICH DID NOT BELONG TO THE UNITED
STATES AND WHICH WAS BEING HELD BY THE CUSTOMS AUTHORITIES AS BAILEE
ONLY.  THE CASE DID NOT INVOLVE AN ATTEMPT, BYFRAUD, TO CAUSE THE
GOVERNMENT TO PART WITH ITS MONEY OR PROPERTY, EITHER IN DISCHARGE OF
AN OBLIGATION OR IN RESPONSE TO AN APPLICATION FOR DISCRETIONARY
ACTION.  THE LANGUAGE IN THE COURT'S OPINION UPON WHICH RESPONDENT
RELIES CANNOT BE TAKEN AS A DECISION UPON A POINT WHICH THE FACTS OF
THE CASE DID NOT PRESENT.  /4/ 

IN MCNINCH, THE GOVERNMENT BROUGHT SUIT FOR DAMAGES AND FORFEITURES
UNDER THE FALSE CLAIMS ACT, IN ITS PRESENT FORM, AGAINST PERSONS WHO
HAD FILED FRAUDULENT APPLICATIONS FOR HOME-MODERNIZATION LOANS WITH A
PRIVATE BANK WHICH WAS REGULARLY INSURED BY THE FEDERAL HOUSING
ADMINISTRAITON AGAINST LOSSES ON SUCH LOANS.  THE BANK GRANTED THE
LOANS SOUGHT BY DEFENDANTS, WHICH WERE "ROUTINELY" INSURED BY THE FHA. 
356 U.S.,AT 597, N. 4.  THIS COURT HELD THAT SINCE FHA "DISBURSES NO
FUNDS NOR DOES IT OTHERWISE SUFFER IMMEDIATE FINANCIAL DETRIMENT," ID.,
AT 599, THE TRANSACTION WAS NOT WITHIN THE AMBIT OF THE FALSE CLAIMS
ACT.  THE COURT EMPHASIZED THE DISTINCTION BETWEEN CONTRACTS OF
INSURANCE AGAINST LOSS SUCH AS THOSE INVOLVED IN MCNINCH, AND
TRANSACTIONS IN WHICH THE UNITED STATES PAYS OR LENDS MONEY.  FOR
PURPOSES OF THE PRESENT CASE, WE NEED NOT RECONSIDER THE VALIDITY OF
THIS DISTINCTION.  IT IS SUFFICIENT TO NOTE THAT THE INSTANT CASE
INVOVLES A FALSE STATEMENT MADE WITH THE PURPOSE AND EFFECT OF INDUCING
THE GOVERNMENT IMMEDIATELY TO PART WITH MONEY. 

THE PRECISE QUESTION PRESENTED BY THIS CASE HAS NEVER BEEN
CONSIDERED BY THE COURT.  HOWEVER, BOTH THE HISTORY AND THE LANGUAGE OF
FALSE CLAIMS ACT, AS WELL AS THE THRUST OF OUR PRIOR DECISIONS,
INDICATE THE ANSWER TO OUR PRESENT INQUIRY.  THE ORIGINAL FALSE CLAIMS
ACT WAS PASSED IN 1863 AS ARESULT OF INVESTIGATIONS OF THE FRAUDULENT
USE OF GOVERNMENT FUNDS DURING THE CIVIL WAR.  DEBATES AT THE TIME
SUGGEST THAT THE ACT WAS INTENDED TO REACH ALL TYPES OF FRAUD, WITHOUT
QUALIFICATION, THAT MIGHT RESULT IN FINANCIAL LOSS TO THE GOVERNMENT. 
/5/  IN ITS PRESENT FORM THE ACT IS BROADLY PHRASED TO REACH ANY PERSON
WHO MAKES OR CAUSES TO BE MADE "ANY CLAIM UPON OR AGAINST" THE UNITED
STATES, OR WHO MAKEA A FLASE "BILL, RECEIPT, . . . CLAIM, . . .
AFFIDAVIT, OR DEPOSITION: FOR THE PURPOSE OF "OBTAINING OR AIDING TO
OBTAIN THE PAYMENT OR APPROVAL OF" SUCH A FALSE CLAIM.  IN THE VARIOUS
CONTEXTS IN WHICH QUESTIONS OF THE PROPER CONSTRUCTION OF THE ACT HAS
BEEN PRESENTED, THE COURT HAS CONSISTENTLY REFUSED TO ACCEPT A RIGID,
RESTRICTIVE READING, EVEN AT THE TIME WHEN THE STATUTE IMPOSED CRIMINAL
SANCTIONS AS WELL AS CIVIL.  /6/  SEE, E.G., UNITED STATES EX REL.
MARCUS V. HESS, 317 U.S. 537 (1943). 

ON THE VERY DAY THAT THIS COURT DECIDED MCNINCH, IT ALSO DECIDED
THREE CASES HOLDING THAT A FRAUDULENT APPLICATION FOR A LOAN SUBMITTED
TO THE CCC WAS A CLAIM AGAINST THE GOVERNMENT OF THE UNITED STATES,
WITHIN THE MEANING OF THE FALSE CLAIMS ACT.  /7/  THE QUESTION DEBATED
IN THOSE CASES WAS NOT THE MEANING OF THE WORD "CLAIM," BUT WHETHER THE
CCC, A WHOLLY OWNED GOVERNMENT CORPORATION, WAS " THE GOVERNMENT OF THE
UNITED STATES, OR ANY DEPARTMENT OR OFFICER THEREOF" WITHIN THE MEANING
OF THE STATUTE.  IN THE COURSE OF ITS OPINION ON THIS MATTER, THE COURT
NOTED THAT THE OBJECTIVE OF CONGRESS IN ENACTING THE FALSE CLAIMS ACT
"WAS BROADLY TO PROTECT THE FUNDS AND PROPERTY OF THE GOVERNMENT FROM
FRAUDULENT CLAIMS, REGARDLESS OF THE PARTICULAR FORM, OR FUNCTION, OF
THE GOVERNMENT INSTRUMENTALITY UPON WHICH SUCH CLAIMS WERE MADE" AND
THAT "(BY ANY ORDINARY STANDARD THE LANGUAGE OF THE ACT IS CERTAINLY
COMPREHENSIVE ENOUGH TO ACHIEVE THIS PURPOSE."  RAINWATER V . UNITED
STATES, 356 U.S. 590, 592 (1958). 

ANALOGOUS REASONING LEADS US TO HOLD TODAY THAT THE FALSE CLAIMS ACT
SHOULD NOT BE GIVEN THE NARROW READING THAT RESPONDENT URGES.  THIS
REMEDIAL STATUTE REACHES BEYOND "CLIAMS" WHICH MIGHT BE LEGALLY
ENFORCED, TO ALL FRAUDULENT ATTEMPTS TO CAUSE THE GOVERNMENT TO PAY OUT
SUMS OF MONEY.  WE BELIEVE THE TERM "CLAIM," AS USED IN THE STAUTTE, IS
BROAD ENOUGH TO REACH THE CONDUCT ALLEGED BY THE GOVERNMENT IN ITS
COMPLAINT.  ACCORDINGLY, WE REVERSE THE JUDGMENT OF THE COURT OF
APPEALS AND REMAND THE CASE FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH
THIS OPINION. 

  REVERSED AND REMANDED. 

/1/  IN RELEVANT PART, THE STATUTE PROVIDES AS FOLLOWS: 

R.S. SEC. 3490 (1874): 

"ANY PERSON . . . WHO SHALL DO OR COMMIT ANY OF THE ACTS PROHIBITED
BY ANY OF THE PROVISIONS OF SECTION FIFTY-FOUR HUNDRED AND THIRTY
EIGHT, TITLE 'CRIMES,' SHALL FORFEIT AND PAY TO THE UNITED STATES THE
SUM OF TWO THOUSAND DOLLARS, AND, IN ADDITION, DOUBLE THE AMOUNT OF
DAMAGES WHICH THE UNITED STATES MAY HAVE SUSTAINED BY REASON OF THE
DOING OR COMMITTING SUCH ACT . . . " 

R.S. SEC. 5438 (1874): 

"EVERY PERSON WHO MAKES OR CAUSES TO BE MADE, OR PRESENTS OR CAUSES
TO BE PRESENTED, FOR PAYMENT OR APPROVAL, TO OR BY ANY PERSON OR
OFFICER IN THE CIVIL, MILITARY, OR NAVAL SERVICE OF THE UNITED STATES,
ANY CLAIM UPON OR AGAINST THE GOVERNMENT OF THE UNITED STATES, OR ANY
DEPARTMENT OR OFFICER THEREOF, KNOWING SUCH CLAIM TO BE FALSE,
FICTITIOUS, OR FRAUDULENT, OR WHO, FOR THE PURPOSE OF OBTAINING OR
AIDING TO OBTAIN THE PAYMENT OR APPROVAL OF SUCH CLAIM, MAKES, USES, OR
CAUSES TO BE MADE OR USED, ANY FALSE BILL, RECEIPT, VOUCHER, ROLL,
ACCOUNT, CLAIM, CERTIFICATE, AFFIDAVIT, OR DEPOSITION, KNOWING THE SAME
TO CONTAIN ANY FRAUDULENT OR FICTITIOUS STATEMENT OR ENTRY, OR WHO
ENTERS INTO ANY AGREEMENT, COMBINATION, OR CONSPIRACY TO DEFRAUD THE
GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT OR OFFICER THEREOF,
BY OBTAINING OR AIDING TO OBTAIN THE PAYMENT OR ALLOWANCE OF ANY FALSE
OR FRAUDULENT CLAIM, . . . SHALL BE IMPRISONED AT HARD LABOR FOR NOT
LESS THAN ONE NOR MORE THAN FIVE YEARS, OR FINED NOT LESS THAN ONE
THOUSAND NOR MORE THAN FIVE THOUSAND DOLLARS." 

THE CRIMINAL ASPECT OF THIS STATUTORY SCHEME HAS BEEN ALTERED AND
CODIFIED IN 18 U.S.C. 287 AND 18 U.S.C. 1001; SEE N. 2, INFRA.  THE
CIVIL (FORFEITURE) PROVISIONS HAVE BEEN CODIFIED, UNALTERED, IN 31
U.S.C. 231, BUT THE ABOVE-CITED VERSION OF THESE PROVISIONS CONTINUES
TO BE THE OFFICIAL ONE.  THE ABOVE-QUOTED PROVISIONS SURVIVE ONLY
INSOFAR AS CIVIL LIABILITY IS CONCERNED. 

/2/  NO OTHER ISSUE IS PRESENTED.  THE STATUTE EXPRESSLY REACHES
PERSONS WHO FALSIFY A "RECEIPT" "FOR THE PURPOSE OF . . . AIDING TO
OBTAIN THE PAYMENT OR APPROVAL OF (A) CLAIM."  SEE N. 1, SUPRA. 

/3/  SEE N. 1, SUPRA.  THE CRIMINAL ASPECT OF THE ORIGINAL FALSE
CLAIMS ACT HAS BEEN CARRIED FORWARD IN TWO SEPARATE CRIMINAL STATUTES
CURRENTLY IN FORCE.  SECTION 187 OF TITLE 18 MAKES IT A CRIME FOR A
PERSON TO PRESENT "ANY CLAIM UPON OR AGAINST THE UNITED STATES, OR ANY
DEPARTMENT OR AGENCY THEREOF, KNOWING SUCH CLAIM TO BE FALSE,
FICTITIOUS, OR FRAUDULENT." 

"(WHOEVER . . . KNOWINGLY AND WILLFULLY FALSIFIES, CONCEALS OR COVERS
UP BY ANY TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKES ANY FALSE,
FICTITIOUS OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKES OR
USES ANY FALSE WRITING OR DOCUMENT KNOWING THE SAME TO CONTAIN ANY
FALSE, FICTITIOUS OR FRAUDULENT STATEMENT OR ENTRY." 

RESPONDENT HAS BEEN INDICTED UNDER STILL ANOTHER CRIMINAL STATUTE,
15 U.S.C. 714MA), WHICH PROHIBITS THE MAKING OF FALSE STATEMENTS FOR
THE PURPOSE OF INFLUENCING THE CCC. 

/4/  "(IT IS CLEAR, IN THE LIGHT OF THE ENTIRE CONTEXT, THAT IN THE
PRESENT STATUTE, THE PROVISION RELATING TO THE PAYMENT OR APPROVAL OF A
'CLAIM UPON OR AGAINST' THE GOVERNMENT RELATES SOLELY TO THE PAYMENT OR
APPROVAL OF A CLAIM FOR MONEY OR PROPERTY TO WHICH A RIGHT IS ASSERTED
AGAINST THE GOVERNMENT, BASED UPON THE GOVERNMENT'S OWN LIABILITY TO
THE CLAIMANT."  270 U.S.,AT 345-346. 

/5/  SEE CONG. GLOBE, 37TH CONG., 3D SESS., 952-958. 

/6/  SEE N. 1, SUPRA. 

/7/  THE PRINCIPAL CASE WAS RAINWATER V. UNITED STATES, 356 U.S. 590
(1958).  REFERENCE WAS MADE TO THE OTHER TWO CASES, CATO BROS. V.
UNITED STATES AND TOEPLEMAN V. UNITED STATES, IN THE COURSE OF THE
OPINION OF MCNINCH. 

MR. JUSTICE MARHSALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

JOHN S. MARTIN, JR., ARGUED THE CAUSE FOR THE UNITED STATES.  WITH
HIM ON THE BRIEFS WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY
GENERAL WEISL, JOHN C. ELDRIDGE AND ROBERT V. ZENER. 

PATRICK F. HOOKS ARUGED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE
BRIEF WAS MICHAEL J. HUGHES. 
..END :






















HARRIS V. UNITED STATES, 390 U.S. 234 


       HARRIS V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           DISTRICT OF COLUMBIA CIRCUIT. 

        NO. 92.  ARGUED JANUARY 18, 1968.-- DECIDED MARCH 5, 1968. 


PURSUANT TO A DEPARTMENTAL REGULATION, A POLICE OFFICER SEARHCED AN
IMPOUNDED CAR HELD AS EVIDENCE OF A ROBBERY.  THE SEARCH COMPLETED, THE
OFFICER OPENED THE CAR DOOR FOR THE PURPOSE OF ROLLING UP A WINDOW AND
THUS PROTECTING THE CAR AND ITS CONTENTS.  ON OPENING THE DOOR, THE
OFFICER SAW, EXPOSED TO PLAIN VIEW, THE AUTOMOBILE REGISTRATION CARD
BELONGING TO THE VICTIM OF THE ROBBERY.  THIS CARD WAS USED AS EVIDENCE
IN PETITIONER'S TRIAL.  PETITIONER'S CONVICTION WAS AFFIRMED BY THE
COURT OF APPEALS OVER HIS CONTENTION THAT THE CARD HAD BEEN ILLEGALLY
SEIZED FOLLOWING A WARRANTLESS SEARCH.  HELD:  THE CARD WAS SUBJECT TO
SEIZURE AND INTRODUCIBLE IN EVIDENCE SINCE IT WAS NOT DISCOVERED BY
MEANS OF A SEARCH IN THE TECHNICAL SENSE, BUT WAS PLAINLY VISIBLE TO
THE OFFICER WHO HAD A RIGHT TO BE IN A POSITION OF VIEWING IT. 

125 U.S.APP.D.C. 231, 370 F.2D 477, AFFIRMED. 

PER CURIAM. 

PETITIONER WAS CHARGED WITH ROBBERY UNDER THE DISTRICT OF COLUMBIA
CODE.  D.C. CODE ANN. SEC. 22-2901.  AT HIS TRIAL IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, PETITIONER MOVED TO
SUPPRESS AN AUTOMOBILE REGISTRATION CARD BELONGING TO THE ROBBERY
VICTIM, WHICH THE GOVERNMENT SOUGHT TO INTRODUCE IN EVIDENCE.  THE
TRIAL COURT, AFTER A HEARING, RULED THT THE CARD WAS ADMISSIBLE. 
PETITIONER WAS CONVICTED OF THE CRIME CHARGED AND SENTENCED TO
IMPRISONMENT FOR A PERIOD OF TWO TO SEVEN YEARS.  ON APPEAL, A PANEL OF
THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
REVERSED, HOLDING THAT THE CARD HAD BEEN OBTAINED BY MEANS OF AN
UNLAWFUL SEARCH.  THE GOVERNMENT'S PETITION FOR REHEARING EN BANC WAS,
HOWEVER, GRANTED, AND THE FULL COURT OF APPEALS AFFIRMED PETITIONER'S
CONVICTION, WITH TWO JUDGES DISSENTING.  WE GRANTED CERTIORARI TO
CONSIDER THE PROBLEM PRESENTED UNDER THE FOURTH AMENDMENT.  386 U.S.
1003 (1967).  WE AFFIRM. 

PETITIONER'S AUTOMOBILE HAD BEEN SEEN LEAVING THE SITE OF THE
ROBBERY.  THE CAR WAS TRACED AND PETITIONER WAS ARRESTED AS HE WAS
ENTERING IT, NEAR HIS HOME.  AFTER A CURSORY SEARCH OF THE CAR, THE
ARRESTING OFFICER TOOK PETITIONER TO A POLICE STATION.  THE POLICE
DECIDED TO IMPOUND THE CAR AS EVIDENCE, AND A CRANE WAS CALLED TO TWO
IT TO THE PRECINCT.  IT REACHED THE PRECINCT ABOUT AN HOUR AND A
QUARTER AFTER PETITIONER.  AT THIS MOMENT, THE WINDOWS OF THE CAR WERE
OPEN AND THE DOOR UNLOCKED.  IT HAD BEGUN TO RAIN. 

A REGULATION OF THE METROPOLITAN POLICE DEPARTMENT REQUIRES THE
OFFICER WHO TAKES AN IMPOUNDED VEHICLE IN CHARGE TO SEARCH THE VEHICLE
THOROUGHLY, TO REMOVE ALL VALUABLES FROM IT, AND TO ATTACH TO THE
VEHICLE A PROPERTY TAG LISTING CERTAIN INFORMATION ABOUT THE
CIRCUMSTANCES OF THE IMPOUNDING.  PURSUANT TO THIS REGULATION, AND
WITHOUT A WARRANT, THE ARRESTING OFFICER PROCEEDED TO THE LOT TO WHICH
PETITIONER'S CAR HAD BEEN TOWED, IN ORDER TO SEARCH THE VEHICLE, TO
PLACE A PROPERTY TAG ON IT, TO ROLL UP THE WINDOWS, AND TO LOCK THE
DOORS.  THE OFFICER ENTERED ON THE DRIVER'S SIDE, SEARCHED THE CAR, AND
TIED A PROPERTY TAG ON THE STEERING WHEEL.  STEPPING OUT OF THE CAR, HE
ROLLED UP AN OPEN WINDOW ON ONE OF THE BACK DOORS.  PROCEEDING TO THE
FRONT DOOR ON THE PASSENGER SIDE, THE OFFICER OPENED THE DOOR IN ORDER
TO SECURE THE WINDOW AND DOOR.  HE THEN SAW THE REGISTRATION CARD,
WHICH LAY FACE UP ON THE METAL STRIPPING OVER WHICH THE DOOR CLOSES. 
THE OFFICER RETURNED TO THE PRECINCT, BROUGHT PETITIONER TO THE CAR,
AND CONFRONTED PETITIONER WITH THE REGISTRATION CARD.  PETITIONER
DISCLAIMED ALL KNOWLEDGE OF THE CARD.  THE OFFICER THEN SEIZED THE CARD
AND BROUGHT IT INTO THE PRECINCT.  RETURNING TO THE CAR, HE SEARCHED
THE TRUNK, ROLLED UP THE WINDOWS, AND LOCKED THE DOORS. 

THE SOLE QUESTION FOR OUR CONSIDERATION IS WHETHER THE OFFICER
DISCOVERED THE REGISTRATION CARD BY MEANS OF AN ILLEGAL SEARCH.  WE
HOLD THAT HE DID NOT.  THE ADMISSIBILITY OF EVIDENCE FOUND AS A RESULT
OF A SEARCH UNDER THE POLICE REGULATION IS NOT PRESENTED BY THIS CASE. 
THE PRECISE AND DETAILED FINDINGS OF THE DISTRICT COURT, ACCEPTED BY
THE COURT OF APPEALS, WERE TO THE EFFECT THAT THE DISCOVERY OF THE CARD
WAS NOT THE RESULT OF A SEARCH OF THE CAR, BUT OF A MEASURE TAKEN TO
PROTECT THE CAR WHILE IT WAS IN POLICE CUSTODY.  NOTHING IN THE FOURTH
AMENDMENT REQUIRES THE POLICE TO OBTAIN A WARRANT IN THESE NARROW
CIRCUMSTANCES. 

ONCE THE DOOR HAD LAWFULLY BEEN OPENED, THE REGISTRATION CARD, WITH
THE NAME OF THE ROBBERY VICTIM ON IT, WAS PLAINLY VISIBLE.  IT HAS LONG
BEEN SETTLED THAT OBJECTS FALLING IN THE PLAIN VIEW OF AN OFFICER WHO
HAS A RIGHT TO BE IN THE POSITION TO HAVE THAT VIEW ARE SUBJECT TO
SEIZURE AND MAY BE INTRODUCED IN EVIDENCE.  KER V. CALIFORNIA, 374 U.S.
23, 42-43 (1963); UNITED STATES V. LEE, 274 U.S. 559 (1927); HESTER V.
UNITED STATES, 265 U.S. 57 (1924). 

              AFFIRMED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THOUGH PRESTON V. UNITED STATES, 376 U.S. 364, IS NOT MENTIONED IN
THE COURT'S OPINION, I ASSUME IT HAS SURVIVED BECAUSE IN THE PRESENT
CASE (1) THE CAR WAS LAWFULLY IN POLICE CUSTODY, AND THE POLICE WERE
RESPONSIBLE FOR PROTECTING THE CAR; (2) WHILE ENGAGED IN THE
PERFORMANCE OF THEIR DUTY TO PROTECT THE CAR, AND NOT ENGAGED IN AN
INVENTORY OR OTHER SEARCH OF THE CAR, THEY CAME ACROSS INCRIMINATING
EVIDENCE. 

PAUL H. WEINSTEIN ARUGED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WAS ALURENCE LEVITAN. 

FRANCIS X. BEYTAGH, JR., ARGUED THE CAUSE FOR THE UNITED STATES.  ON
THE BRIEF WERE ACTING ATTORNEY GENERAL VINSON, BEATRICE ROSENBERG AND
JULIA P. COOPER. 
..END :





ALBRECHT V. HERALD CO., 390 U.S. 145 


       ALBRECHT V. HERALD CO., DBA GLOBE-DEMOCRAT PUBLISHING CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           EIGHTH CIRCUIT. 

        NO. 43.  ARGUED NOVEMBER 9, 1967.-- DECIDED MARCH 4, 1968. 


PETITIONER, AN INDEPENDENT NEWSPAPER CARRIER, BOUGHT FROM RESPONDENT
AT WHOLESALE AND SOLD AT RETAIL COPIES OF RESPONDENT'S MORNING
NEWSPAPER UNDER AN EXCLUSIVE TERRITORY ARRANGEMENT WHICH WAS TERMINABLE
IF A CARRIER EXCEEDED THE MAXIMUM RETAIL PRICE ADVERTISED BY
RESPONDENT.  WHEN PETITIONER EXCEEDED THAT PRICE, RESPONDENT PROTESTED
TO PETITIONER, AND THEN INFORMED PETITIONER'S SUBSCRIBERS THAT IT WOULD
ITSELF DELIVER THE PAPER AT THE LOWER PRICE.  RESPONDENT ENGAGED AN
AGENCY (MILNE) TO SOLICIT PETITIONER'S CUSTOMERS.  ABOUT 300 OF
PETITIONER'S 1200 SUBSCRIBERS SWITCHED TO DIRECT DELIVERY BY
RESPONDENT.  RESPONDENT LATER TURNED THESE CUSTOMERS OVER, WITHOUT
COST, TO ANOTHER CARRIER (KRONER), WHO WAS AWARE OF RESPONDENT'S
PURPOSE AND WHO KNEW THAT HE MIGHT HAVE TO RETURN THE ROUTE IF
PETITIONER DISCONTINUED HIS PRICING PRACTICE.  REPONDENT TOLD
PETITIONER THAT HE COULD HAVE HIS CUSTOMERS BACK IF HE ADHERED TO THE
SUGGESTED PRICE.  PETITIONER FILED A TREBLE-DAMAGE COMPLAINT WHICH, AS
LATER AMENDED, CHARGED A COMBINATION IN RESTRAINT OF TRADE IN VIOLATION
OF SEC; 1 OF THE SHERMAN ACT, BETWEEN RESPONDENT, PETITIONER'S
CUSTOMERS, MILNE, AND KRONER.  PETITIONER'S APPOINTMENT AS CARRIER WAS
TERMINATED AND PETITIONER SOLD HIS ROUTE.  THE JURY FOUND FOR
RESPONDENT AND THE TRIAL COURT DENIED PETITIONER'S MOTION FOR JUDGMENT
N.O.V., WHICH ASSERTED THAT THE UNDISPUTED FACTS SHOWED AS A MATTER OF
LAW A COMBINATION TO FIX A RESALE PRICE WHICH WAS PER SE ILLEGAL UNDER
UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29 (1960), AND LIKE
CASES.  THE COURT OF APPEALS AFFIRMED, HOLDING THAT RESPONDENT'S
CONDUCT WAS WHOLLY UNILATERAL AND NOT IN RESTRAINT OF TRADE.  HELD: 

1.  THE UNCONTROVERTED FACTS SHOWED A COMBINATION WITHIN SEC. 1 OF
THE SHERMAN ACT BETWEEN RESPONDENT, MILNE, AND KRONER, TO FORCE
PETITIONER TO CONFORM TO RESPONDENT'S ADVERTISED RETAIL PRICE.  UNITED
STATES V. PARKE, DAVIS & CO., SUPRA, FOLLOWED.  PP. 149-150. 

2.  SINCE FIXING MAXIMUM AS WELL AS MINIMUM RESALE PRICES BY
AGREEMENT OR COMBINATION IS A PER SE VIOLATION OF SEC. 1 OF THE ACT,
THE COURT OF APPEALS ERRED IN HOLDING THAT THERE WAS NO RESTRAINT OF
TRADE.  KIEFER-STEWART CO. V. SEAGRAM & SONS, INC., 340 U.S. 211
(1951), FOLLOWED.  PP. 151-153. 

3.  THE COURT OF APPEALS ALSO ERRED IN ASSUMING ON THE RECORD HERE
THAT IT WAS NECESSARY TO PERMIT RESPONDENT TO IMPOSE A PRICE CEILING TO
PREVENT THE PRICE GOUGING MADE POSSIBLE BY EXCLUSIVE TERRITORIES, FOR
NEITHER THE EXISTENCE OF EXCLUSIVE TERRITORIES NOR THE DEALERS'
RESULTANT ECONOMIC POWER WAS IN ISSUE; AND THE COURT WAS NOT ENTITLED
TO ASSUME THAT THE EXCLUSIVE RIGHTS GRANTED BY RESPONDENT WERE VALID
UNDER SEC. 1 OF THE ACT, EITHER ALONE OR IN CONJUNCTION WITH A PRICE
FIXING SCHEME.  PP. 153-154. 

367 F.2D 517, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

A JURY RETURNED A VERDICT FOR RESPONDENT IN PETITIONER'S SUIT FOR
TREBLE DAMAGES FOR VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  /1/
JUDGMENT WAS ENTERED ON THE VERDICT AND THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT AFFIRMED.  367 F.2D 517 (1966).  THE QUESTION IS WHETHER
THE DENIAL OF PETITIONER'S MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT WAS CORRECTLY AFFIRMED BY THE COURT OF APPEALS.  BECAUSE THIS
CASE PRESENTS IMPORTANT ISSUES UNDER THE ANTITRUST LAWS, WE GRANTED
CERTIORARI.  386 U.S. 941 (1967). 

WE TAKE THE FACTS FROM THOSE STATED BY THE COURT OF APPEALS. 
RESPONDENT PUBLISHES THE GLOBE-DEMOCRAT, A MORNING NEWSPAPER
DISTRIBUTED IN THE ST. LOUIS METROPOLITAN AREA BY INDEPENDENT CARRIERS
WHO BUY PAPERS AT WHOLESALE AND SELL THEM AT RETAIL.  THERE ARE 172
HOME DELIVERY ROUTES.  RESPONDENT ADVERTISES A SUGGESTED RETAIL PRICE
IN ITS NEWSPAPER.  CARRIERS HAVE EXCLUSIVE TERRITORIES WHICH ARE
SUBJECT TO TERMINATION IF PRICES EXCEED THE SUGGESTED MAXIMUM. 
PETITIONER, WHO HAD ROUTE 99, ADHERED TO THE ADVERTISED PRICE FOR SOME
TIME BUT IN 1961 RAISED THE PRICE TO CUSTOMERS.  /2/  AFTER MORE THAN
ONCE OBJECTING TO THIS PRACTICE, RESPONDENT WROTE PETITIONER ON MAY 20,
1964, THAT BECAUSE HE WAS OVERCHARGING AND BECAUSE RESPONDENT HAD
RESERVED THE RIGHT TO COMPETE SHOULD THAT HAPPEN, SUBSCRIBERS ON ROUTE
99 WERE BEING INFORMED BY LETTER THAT RESPONDENT WOULD ITSELF DELIVER
THE PAPER TO THOSE WHO WANTED IT AT THE LOWER PRICE.  IN ADDITION TO
SENDING THESE LETTERS TO PETITIONER'S CUSTOMERS, RESPONDENT HIRED MILNE
CIRCULATION SALES, INC., WHICH SOLICITED READERS FOR NEWSPAPERS, TO
ENGAGE IN TELEPHONE AND HOUSE-TO-HOUSE SOLICITATION OF ALL RESIDENTS ON
ROUTE 99.  AS A RESULT, ABOUT 300 OF PETITIONER'S 1,200 CUSTOMERS
SWITCHED TO DIRECT DELIVERY BY RESPONDENT.  MEANWHILE, RESPONDENT
CONTINUED TO SELL PAPERS TO PETITIONER BUT WARNED HIM THAT SHOULD HE
CONTINUE TO OVERCHARGE, RESPONDENT WOULD NOT HAVE TO DO BUSINESS WITH
HIM.  SINCE RESPONDENT DID NOT ITSELF WANT TO ENGAGE IN HOME DELIVERY,
IT ADVERTISED A NEW ROUTE OF 314 CUSTOMERS AS AVAILABLE WITHOUT COST. 
ANOTHER CARRIER, GEORGE KRONER, TOOK OVER THE ROUTE KNOWING THAT
RESPONDENT WOULD NOT TOLERATE OVERCHARGING AND UNDERSTANDING THAT HE
MIGHT HAVE TO RETURN THE ROUTE IF PETITIONER DISCONTINUED HIS PRICING
PRACTICE.  /3/  ON JULY 27 RESPONDENT TOLD PETITIONER THAT IT WAS NOT
INTERESTED IN BEING IN THE CARRIER BUSINESS AND THAT PETITIONER COULD
HAVE HIS CUSTOMERS BACK AS LONG AS HE CHARGED THE SUGGESTED PRICE. 
PETITIONER BROUGHT THIS LAWSUIT ON AUGUST 12.  IN RESPONSE,
PETITIONER'S APPOINTMENT AS A CARRIER WAS TERMINATED AND PETITIONER WAS
GIVEN 60 DAYS TO ARRANGE THE SALE OF HIS ROUTE TO A SATISFACTORY
REPLACEMENT.  PETITIONER SOLD HIS ROUTE FOR $12,000, $1,000 MORE THAN
HE HAD PAID FOR IT BUT LESS THAN HE COULD HAVE GOTTEN HAD HE BEEN ABLE
TO TURN OVER 1,200 CUSTOMERS INSTEAD OF 900.  /4/ 

PETITIONER'S COMPLAINT CHARGED A COMBINATION OR CONSPIRACY IN
RESTRAINT OF TRADE UNDER SEC. 1 OF THE SHERMAN ACT.  /5/  AT THE CLOSE
OF THE EVIDENCE THE COMPLAINT WAS AMENDED TO CHARGE ONLY A COMBINATION
BETWEEN RESPONDENT AND "PLAINTIFF'S CUSTOMERS AND/OR MILNE CIRCULATION
SALES, INC. AND/OR GEORGE KRONER."  THE CASE WENT TO THE JURY ON THIS
THEORY, THE JURY FOUND FOR RESPONDENT, AND JUDGMENT IN ITS FAVOR WAS
ENTERED ON THE VERDICT.  THE COURT DENIED PETITIONER'S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT, WHICH ASSERTED THAT UNDER UNITED
STATES V. PARKE, DAVIS & CO;, 362 U.S. 29 (1960), AND LIKE CASES, THE
UNDISPUTED FACTS SHOWED AS A MATTER OF LAW A COMBINATION TO FIX RESALE
PRICES OF NEWSPAPERS WHICH WAS PER SE ILLEGAL UNDER THE SHERMAN ACT. 
THE COURT OF APPEALS AFFIRMED.  IN ITS VIEW "THE UNDISPUTED EVIDENCE
FAILED) TO SHOW A SHERMAN ACT VIOLATION," BECAUSE RESPONDENT'S CONDUCT
WAS WHOLLY UNILATERAL AND THERE WAS NO RESTRAINT OF TRADE.  THE
PREVIOUS DECISIONS OF THIS COURT WERE DEEMED INAPPOSITE TO A SITUATION
IN WHICH A SELLER ESTABLISHES MAXIMUM PRICES TO BE CHARGED BY A
RETAILER ENJOYING AN EXCLUSIVE TERRITORY AND IN WHICH THE SELLER, WHO
WOULD BE ENTITLED TO REFULSE TO DEAL, SIMPLY ENGAGES IN COMPETITION
WITH THE OFFENDING RETAILER.  WE DISAGREE WITH THE COURT OF APPEALS AND
REVERSE ITS JUDGMENT. 

ON THE UNDISPUTED FACTS RECITED BY THE COURT OF APPEALS RESPONDENT'S
CONDUCT CANNOT BE DEEMED WHOLLY UNILATERAL AND BEYOND THE REACH OF SEC.
1 OF THE SHERMAN ACT.  THAT SECTION COVERS COMBINATIONS IN ADDITION TO
CONTRACTS AND CONSPIRACIES, EXPRESS OR IMPLIED.  THE COURT MADE THIS
QUITE CLEAR IN UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29 (1960),
WHERE IT HELD THAT AN ILLEGAL COMBINATION TO FIX PRICES RESULTS IF A
SELLER SUGGESTS RESALE PRICES AND SECURES COMPLAINCE BY MEANS IN
ADDITION TO THE "MERE ANNOUNCEMENT OF HIS POLICY AND THE SIMPLE REFUSAL
TO DEAL.  . . . "  ID., AT 44.  PARKE DAVIS HAD SPECIFIED RESALE PRICES
FOR BOTH WHOLESALERS AND RETAILERS AND HAD REQUIRED WHOLESALERS TO
REFUSE TO DEAL WITH NON-COMPLYING RETAILERS.  IT WAS FOUND TO HAVE
CREATED A COMBINATION "WITH THE RETAILERS AND THE WHOLESALERS TO
MAINTAIN RETAIL PRICES.  . . . "  ID., AT 45.  THE COMBINATION WITH
RETAILERS AROSE BECAUSE THEIR ACQUIESCENCE IN THE SUGGESTED PRICES WAS
SECURED BY THREATS OF TERMINATION; THE COMBINATION WITH WHOLESALERS
AROSE BECAUSE THEY COOPERATED IN TERMINATING PRICE-CUTTING RETAILERS. 

IF A COMBINATION AROSE WHEN PARKE DAVIS THREATENED ITS WHOLESALERS
WITH TERMINATION UNLESS THEY PUT PRESSURE ON THEIR RETAIL CUSTOMERS,
THEN THERE CAN BE NO DOUBT THAT T COMBINATION AROSE BETWEEN RESPONDENT,
MILNE, AND KRONER TO FORCE PETITIONER TO CONFORM TO THE ADVERTISED
RETAIL PRICE.  WHEN RESPONDENT LEARNED THAT PETITIONER WAS
OVERCHARGING, IT HIRED MILNE TO SOLICIT CUSTOMERS AWAY FROM PETITIONER
IN ORDER TO GET PETITIONER TO REDUCE HIS PRICE.  IT WAS THROUGH THE
EFFORTS OF MILNE, AS WELL AS BECAUSE OF RESPONDENT'S LETTER TO
PETITIONER'S CUSTOMERS, THAT ABOUT 300 CUSTOMERS WERE OBTAINED FOR
KRONER.  MILNE'S PRUPOSE WAS UNDOUBTEDLY TO EARN ITS FEE, BUT IT WAS
AWARE THAT THE AIM OF THE SOLICITATION CAMPAIGN WAS TO FORCE PETITIONER
TO LOWER HIS PRICE.  KRONER KNEW THAT RESPONDENT WAS GIVING HIM THE
CUSTOMER LIST AS PART OF A PROGRAM TO GET PETITIONER TO CONFORM TO THE
ADVERTISED PRICE, AND HE KNEW THAT HE MIGHT HAVE TO RETURN THE
CUSTOMERS IF PETITIONER ULTIMATELY COMPLIED WITH RESPONDENT'S DEMANDS. 
HE UNDERTOOK TO DELIVER PAPERS AT THE SUGGESTED PRICE AND MATERIALLY
AIDED IN THE ACCOMPLISHMENT OF RESPONDENT'S PLAN.  GIVEN THE
UNCONTRADICTED FACTS RECITED BY THE COURT OF APPEALS, THERE WAS A
COMBINATION WITHIN THE MEANING OF SEC. 1 BETWEEN RESPONDENT, MILNE, AND
KRONER, AND THE COURT OF APPEALS ERRED IN HOLDING TO THE CONTRARY. 
/6/ 

THE COURT OF APPEALS ALSO HELD THERE WAS NO RESTRAINT OF TRADE,
DESPITE THE LONG-ACCEPTED RULE IN SEC. 1 CASES THAT RESALE PRICE FIXING
IS A PER SE VIOLATION OF THE LAW WHETHER DONE BY AGREEMENT OR
COMBINATION.  /7/  UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392
(1927); UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150 (1940);
KIEFER-STEWART CO. V. SEAGRAM & SONS, 340 U.S. 211 (1951); UNITED
STATES V. MCKESSON & ROBBINS, INC., 351 U.S. 305 (1956). 

IN KIEFER-STEWART, SUPRA, LIQUOR DISTRIBUTORS COMBINED TO SET
MAXIMUM RESALE PRICES.  THE COURT OF APPEALS HELD THE COMBINATION LEGAL
UNDER THE SHERMAN ACT BECAUSE IN ITS VIEW SETTING MAXIMUM PRICES " . .
. CONSTITUTED NO RESTRAINT ON TRADE AND NO INTERFERENCE WITH
PLAINTIFF'S RIGHT TO ENGAGE IN ALL THE COMPETITION IT DESIRED."  182
F.2D 228, 235 (C.A. 7TH CIR. 1950).  THIS COURT REJECTED THAT VIEW AND
REVERSED THE COURT OF APPEALS, HOLDING THAT AGREEMENTS TO FIX MAXIMUM
PRICES "NO LESS THAN THOSE TO FIX MINIMUM PRICES, CRIPPLE THE FREEDOM
TO TRADERS AND THEREBY RESTRAIN THEIR ABILITY TO SELL IN ACCORDANCE
WITH THEIR OWN JUDGMENT."  /8/  340 U.S. 211, 313. 

WE THINK KIEFER-STEWART WAS CORRECTLY DECIDED AND WE ADHERE TO IT.
MAXIMUM AND MINIMUM PRICE FIXING MAY HAVE DIFFERENT CONSEQUENCES IN
MANY SITUATIONS.  BUT SCHEMES TO FIX MAXIMUM PRICES, BY SUBSTITUTING
THE PERHAPS ERRONEOUS JUDGMENT OF A SELLER FOR THE FORCES OF THE
COMPETITIVE MARKET, MAY SEVERELY INTRUDE UPON THE ABILITY OF BUYERS TO
COMPETE AND SURVIVE IN THAT MARKET.  COMPETITION, EVEN IN A SINGLE
PRODUCT, IS NOT CAST IN A SINGLE MOLD.  MIXIMUM PRICES MAY BE FIXED TOO
LOW FOR THE DEALER TO FURNISH SERVICES ESSENTIAL TO THE VALUE WHICH
GOODS HAVE FOR THE CONSUMER OR TO FURNISH SERVICES AND CONVENIENCES
WHICH CONSUMERS DESIRE AND FOR WHICH THEY ARE WILLING TO PAY.  MAXIMUM
PRICE FIXING MAY CHANNEL DISTRIBUTION THROUGH A FEW LARGE OR
SPECIFICALL ADVANTAGED DEALERS WHO OTHERWISE WOULD BE SUBJECT TO
SIGNIFICANT NONPRICE COMPETITION.  MOREOVER, IF THE ACTUAL PRICE
CHARGED UNDER A MAXIMUM PRICE SCHEME IS NEARLY ALWAYS THE FIXED MAXIMUM
PRICE, WHICH IS INCREASINGLY LIKELY AS THE MAXIMUM PRICE APPROACHES THE
ACTUAL COST OF THE DEALER, THE SCHEME TENDS TO ACQUIRE ALL THE
ATTRIBUTES OF AN ARRANGEMENT FIXING MINIMUM PRICES.  /9/  IT IS OUR
VIEW, THEREFORE, THAT THE COMBINATION FORMED BY THE RESPONDENT IN THIS
CASE TO FORCE PETITIONER TO MAINTAIN A SPECIFIED PRICE FOR THE RESALE
OF THE NEWSPAPERS WHICH HE HAD PURCHASED FROM RESPONDENT CONSTITUTED,
WITHOUT MORE, AN ILLEGAL RESTRAINT OF TRADE UNDER SEC. 1 OF THE SHERMAN
ACT. 

WE ALSO REJECT THE SUGGESTION OF THE COURT OF APPEALS THAT KIEFER
STEWART IS INAPPOSITE AND THAT MAXIMUM PRICE FIXING IS PERMISSIBLE IN
THIS CASE.  THE COURT OF APPEALS REASONED THAT SINCE RESPONDENT GRANTED
EXCLUSIVE TERRITORIES, A PRICE CEILING WAS NECESSARY TO PROTECT THE
PUBLIC FROM PRICE GOUGING BY DEALERS WHO HAD MONOPOLY POWER IN THEIR
OWN TERRITORIES.  BUT NEITHER THE EXISTENCE OF EXCLUSIVE TERRITORIES
NOR THE ECONOMIC POWER THEY MIGHT PLACE IN THE HANDS OF THE DEALERS WAS
AT ISSUE BEFORE THE JURY.  LIKEWISE, THE EVIDENCE TAKEN WAS NOT
DIRECTED TO THE QUESTION OF WHETHER EXCLUSIVE TERRITORIES HAD BEEN
GRANTED OR IMPOSED AS THE RESULT OF AN ILLEGAL COMBINATION IN VIOLATION
OF THE ANTITRUST LAWS.  CERTAINLY ON THE RECORD BEFORE US THE COURT OF
APPEALS WAS NOT ENTITLED TO ASSUME, AS ITS REASONING NECESSARILY DID,
THAT THE EXCLUSIVE RIGHTS GRANTED BY RESPONDENT WERE VALID UNDER SEC. 1
OF THE SHERMAN ACT, EITHER ALONE OR IN CONJUNCTION WITH A PRICE-FIXING
SCHEME.  SEE UNITED STATES V. ARNOLD, SCHWINN & CO., 388 U.S. 365, 373,
379 (1967).  THE ASSERTION THAT ILLEGAL PRICE FIXING IS JUSTIFIED
BECAUSE IT BLUNTS THE PERNICIOUS CONSEQENCES OF ANOTHER DISTRIBUTION
PRACTICE IS UNPERSUASIVE.  IF, AS THE COURT OF APPEALS SAID, THE
ECONOMIC IMPACT OF TERRITORIAL EXCLUSIVITY WAS SUCH THAT THE PUBLIC
COULD BE PROTECTED ONLY BY OTHERWISE ILLEGAL PRICE FIXING INTSELF
INJURIOUS TO THE PUBLIC, THE ENTIRE SCHEME MUST FALL UNDER SEC. 1 OF
THE SHERMAN ACT. 

IN SUM, THE EVIDENCE CITED BY THE COURT OF APPEALS MAKES IT CLEAR
THAT A COMBINATION IN RESTRAINT OF TRADE EXISTED.  ACCORDINGLY, IT WAS
ERROR TO AFFIRM THE JUDGMENT OF THE DISTRICT COURT WHICH DENIED
PETITIONER'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.  THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED
TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              REVERSED AND REMANDED. 

/1/  SECTION 1 OF THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C. 1, IN PART
PROVIDES THAT "EVERY CONTRACT, COMBINATION IN THE FORM OF TRUST OR
OTHERWISE, OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE AMONG THE
SEVERAL STATES, OR WITH FOREIGN NATIONS, IS DECLARED TO BE ILLEGAL.  .
. . " 

/2/  THE RECORD INDICATES THAT PETITIONER RAISED HIS PRICE BY 10
CENTS A MONTH. 

/3/  THE RECORD SHOWS THAT ABOUT THIS TIME PETITIONER LOWERED HIS
PRICE TO RESPONDENT'S ADVERTISED PRICE.  ALTHOUGH PETITIONER NOTIFIED
ALL HIS CUSTOMERS OF THIS CHANGE, RESPONDENT APPARENTLY REMAINED
UNAWARE OF IT. 

/4/  KRONER TESTIFIED AT TRIAL THAT HE SOLD THE CUSTOMERS HE HAD
WITHIN ROUTE 99 TO PETITIONER'S VENDEE FOR $3,600. 

/5/  PETITIONER ALSO CHARGED RESPONDENT WITH TORTIOUS INTERFERENCE
WITH BUSINESS RELATIONS UNDER STATE LAW, BUT THIS COUNT WAS DISMISSED
BEFORE TRIAL. 

/6/  PETITIONER'S ORIGINAL COMPLAINT BROADLY ASSERTED AN ILLEGAL
COMBINATION UNDER SEC. 1 OF THE SHERMAN ACT.  UNDER PARKE, DAVIS
PETITIONER COULD HAVE CLAIMED A COMBINATION BETWEEN RESPONDENT AND
HIMSELF, AT LEAST AS OF THE DAY HE UNWILLINGLY COMPLIED WITH
RESPONDENT'S ADVERTISED PRICE.  LIKEWISE, HE MIGHT SUCCESSFULLY HAVE
CLAIMED THAT RESPONDENT HAD COMBINED WITH OTHER CARRIERS BECAUSE THE
FIRMLY ENFORCED PRICE POLICY APPLIED TO ALL CARRIERS, MOST OF WHOM
ACQUIESCED IN IT.  SEE UNITED STATES V. ARNOLD, SCHWINN & CO., 388 U.S.
365, 372 (1967).  THESE ADDITIONAL CLAIMS, HOWEVER, APPEAR TO HAVE BEEN
ABANDONED BY PETITIONER WHEN HE AMENDED HIS COMPLAINT IN THE TRIAL
COURT. 

PETITIONER'S AMENDED COMPLAINT DID ALLEGE A COMBINATION BETWEEN
RESPONDENT AND PETITIONER'S CUSTOMERS.  BECAUSE OF OUR DISPOSITION OF
THIS CASE IT IS UNNECESSARY TO PASS ON THIS CLAIM.  IT WAS NOT,
HOWEVER, A FRIVOLOUS CONTENTION.  SEE FEDERAL TRADE COMMISSION V. BEECH
NUT PACKING CO., 257 U.S. 441 (1922); GIRARDI V. GATES RUBBER CO. SALES
DIV., INC., 325 F.2D 196 (C.A. 9TH CIR. 1963); GRAHAM V. TRIANGLE
PUBLICATIONS, INC., 233 F.SUPP.  825 (D.C.E.D. PA. 1964, AFF'D PER
CURIAM, 344 F.2D 775 (C.A. 3D CIR. 1965).     /7/  OUR BROTHER HARLAN
SEEMS TO STATE THAT SUPPLIERS HAVE NO INTEREST IN PROGRAMS OF MINIMUM
RESALE PRICE MAINTENANCE, AND HENCE THAT SUCH PROGRAMS ARE
"ESSENTIALLY" HORIZONTAL AGREEMENTS BETWEEN DEALERS EVEN WHEN THEY
APPEAR TO BE IMPOSED UNILATERALLY AND INDIVIDUALLY BY A SUPPLIER ON
EACH OF HIS DEALERS.  ALTHOUGH THE EMPIRICAL BASIS FOR DETERMINING
WHETHER OR NOT MANUFACTURERS BENEFIT FROM MINIMUM RESALE PRICE PROGRAMS
APPEARS TO BE INCONCLUSIVE, IT SEEMS BEYOND DISPUTE THAT A SUBSTANTIAL
NUMBER OF MANUFACTURERS FORMULATE AND ENFORCE COMPLICATED PLANS TO
MAINTAIN RESALE PRICES BECAUSE THEY DEEM THEM ADVANTAGEOUS.  SEE E.
GRETHER, PRICE CONTROL UNDER FAIR TRADE LEGISLATION, C. X (1939);
FEDERAL TRADE COMMISSION, REPORT ON RESALE PRICE MAINTENANCE 5-11, 59
(1945); SLECT COMMITTEE ON SMALL BUSINESS, FAIR TRADE:  THE PROBLEM AND
THE ISSUES, H.R. REP. NO. 1292, 82D CONG., 2D SESS. (1952); BOWMAN, THE
PREREQUISITES AND EFFECTS OF RESALE PRICE MAINTENANCE, 22 U.CHI.L.REV. 
825, 832-843 (1955); COREY, FAIR TRADE PRICING:  A REAPPRAISAL, 30
HAR.BUS.REV.NO. 5, P. 47 (1952); FULDA, RESALE PRICE MAINTENANCE, 21
U.CHI,L.REV.  175, 184-186 (1954).  AS A THEORETICAL MATTER, IT IS NOT
DIFFICULT TO CONCEIVE OF SITUATIONS IN WHICH MANUFACTURERS WOULD
RIGHTLY REGARD MINIMUM RESALE PRICE MAINTENANCE TO BE IN THEIR
INTEREST.  MAINTAINING MINIMUM RESALE PRICES WOULD BENEFIT
MANUFACTURERS WHEN THE TOTAL DEMAND FOR THEIR PRODUCT WOULD NOT BE
INCREASED AS MUCH BY THE LOWER PRICES BROUGHT ABOUT BY DEALER
COMPETITION AS BY SOME OTHER NONPRICE, DEMAND-CREATING ACTIVITY.  IN
PARTICULAR, WHEN TOTAL CONSUMER DEMAND (AT LEAST WITHIN THAT PRICE
RANGE MARKED AT THE BOTTOM BY THE MINIMUM COST OF MANUFACTURE AND
DISTRIBUTION AND AT THE TOP BY THE HIGHEST PRICE AT WHICH A PRICE
MAINTENANCE SCHEME CAN OPERATE EFFECTIVELY) IS AFFECTED LESS BY PRICE
THAN BY THE NUMBER OF RETAIL OUTLETS FOR THE PRODUCT, THE AVAILABILITY
OF DEALER SERVICES, OR THE IMPACT OF ADVERTISING AND PROMOTION, IT WILL
BE IN THE INTEREST OF MANUFACTURERS TO SQUELCH PRICE COMPETITION
THROUGH A SCHEME OF RESALE PRICE MAINTENANCE IN ORDER TO CONCENTRATE ON
NONPRICE COMPETITION.  FINALLY, IF THE RETAIL PRICE OF EACH OF A GROUP
OF COMPETING PRODUCTS IS STABILIZED THROUGH MANUFACTURER-IMPOSED PRICE
MAINTENANCE SCHEMES, THE DANGER TO ALL THE MANUFACTURERS OF SEVERE
INTERBRAND PRICE COMPETITION IS APT TO BE ALLEVIATED. 

/8/  OUR BROTHER HARLAN APPEARS TO READ KIEFER-STEWART AS
PROHIBITING ONLY COMBINATIONS OF SUPPLIERS TO SQUEEZE RETAILERS FROM
THE TOP.  UNDER THIS VIEW, SCARCELY DERIVABLE FROM THE OPINION IN THAT
CASE, SIGNED CONTRACTS BETWEEN A SINGLE SUPPLIER AND HIS MANY DEALERS
TO FIX MAXIMUM RESALE PRICES WOULD NOT VIOLATE THE SHERMAN ACT.  WITH
ALL DEFERENCE, WE REJECT THIS VIEW, WHICH SEEMS TO STEM FROM THE NOTION
THAT THERE CAN BE NO AGREEMENT VIOLATIVE OF SEC. 1 UNLESS THAT
AGREEMENT ACCRUES TO THE BENEFIT OF BOTH PARTIES, AS DETERMINED IN
ACCORDANCE WITH SOME A PRIORI ECONOMIC MODEL.  CF. COMMENT, THE PER SE
ILLEGALITY OF PRICE-FIXING-- SANS POWER, PURPOSE, OR EFFECT, 19
U.CHI.L.REV.  837 (1952). 

/9/  IN KIEFER-STEWART AFTER THE MANUFACTURER ESTABLISHED THE
MAXIMUM PRICE AT WHICH ITS PRODUCT COULD BE SOLD, IT FAIR-TRADED THE
PRODUCT SO AS TO FIX THAT PRICE AS THE LEGALLY PERMISSIBLE MINIMUM. 
182 F.2D, AT 230-231. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, THERE IS A WORD I WOULD ADD,
THIS IS A "RULE OF REASON" CASE STEMMING FROM STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, 62.  WHETHER AN EXCLUSIVE TERRITORIAL
FRANCHISE IN A VERTICAL ARRANGEMENT IS PER SE UNREASONABLE UNDER THE
ANTITRUST LAWS IS A MUCH MOOTED QUESTION.  A FIXING OF PRICES FOR
RESALE IS CONSPICUOUSLY UNREASONABLE, BECAUSE OF THE GREAT LEVERAGE
THAT PRICE HAS OVER THE MARKET.  UNITED STATES V. SOCONY-VACUUM OIL
CO., 310 U.S. 150, 221.  THE COURT QUITE PROPERLY REFUSES TO SAY
WHETHER IN THE NEWSPAPER DISTRIBUTION BUSINESS AN EXCLUSIVE TERRITORIAL
FRANCHISE IS ILLEGAL. 

THE TRADITIONAL DISTRIBUTING AGENCY IS THE NEIGHBORHOOD NEWSPAPER
BOY.  WHETHER HE WOULD HAVE THE TIME, ACUMEN, EXPERIENCE, OR FINANCIAL
RESOURCES TO WAGE COMPETITIVE WARFARE WITHOUT THE PROTECTION OF A
TERRITORIAL FRANCHISE IS AT LEAST DOUBTFUL.  HERE, HOWEVER, WE HAVE A
DISTRIBUTION SYSTEM WHICH HAS THE CHARACTERISTICS OF A LARGE RETAIL
ENTERPRISE.  PETITIONER'S BUSINESS REQUIRES PRACTICALLY FULL TIME.  HE
PURCHASED HIS ROUTE FOR $11,000, RECEIVING A LIST OF SUBSCRIBERS, A
USED TRUCK, AND A NEWSPAPER-TYING MACHINE.  AT THE TIME HIS DISPUTE
WITH RESPONDENT AROSE, THERE WERE 1,200 SUBSCRIBERS ON THE ROUTE, AND
THAT ROUTE COVERED "THE WHOLE NORTHEAST SECTION" OF A "BIG CITY." 
DELIVERIES HAD TO BE MADE BY MOTOR VEHICLE AND ALTHOUGH THEY WERE
USUALLY COMPLETED BY 6 O'CLOCK IN THE MORNING, THE REST OF THE WORKDAY
WAS SPENT IN BILLING, RECEIVING PHONE CALLS, ARRANGING FOR NEW SERVICE,
OR IN PLACING "STOP"  OR "START" ORDERS ON EXISTING SERVICE. 
PETITIONER AT TIMES HIRED A STAFF TO TIE AND TO WRAP NEWSPAPERS. 

UNDER OUR DECISIONS /1A/  THE LEGALITY OF EXCLUSIVE TERRITORIAL
FRANCHISES IN THE NEWSPAPER DISTRIBUTION BUSINESS WOULD HAVE TO BE
TRIED AS A FACTUAL ISSUE; AND THAT WAS NOT DONE HERE. 

THE CASE IS THEREFORE CLOSE TO WHITE MOTOR CO. V. UNITED STATES, 372
U.S. 253, WHERE BEFORE RULING ON THE LEGALITY OF A TERRITORIAL
RESTRICTION IN A VERTICAL ARRANGEMENT, WE REMANDED FOR FINDINGS ON "THE
ACTUAL IMPACT OF THESE ARRANGEMENTS ON COMPETITION."  ID., AT 263. 

/1A/  "EVERY AGREEMENT CONCERNING TRADE, EVERY REGULATION OF TRADE,
RESTRAINS.  TO BIND, TO RESTRAIN, IS OF THEIR VERY ESSENCE.  THE TRUE
TEST OF LEGALITY IS WHETHER THE RESTRAINT IMPOSED IS SUCH AS MERELY
REGULATES AND PERHAPS THEREBY PROMOTES COMPETITION OR WHETHER IT IS
SUCH AS MAY SUPPRESS OR EVEN DESTROY COMPETITION OR WHETHER IT IS SUCH
AS MAY SUPPRESS OR EVEN DESTROY COMPETITION.  TO DETERMINE THAT
QUESTION THE COURT MUST ORDINARILY CONSIDER THE FACTS PECULIAR TO THE
BUSINESS TO WHICH THE RESTRAINT IS APPLIED; ITS CONDITION BEFORE AND
AFTER THE RESTRAINT WAS IMPOSED; THE NATURE OF THE RESTRAINT AND ITS
EFFECT, ACTUAL OR PROBABLE.  THE HISTORY OF THE RESTRAINT, THE EVIL
BELIEVED TO EXIST, THE REASON FOR ADOPTING THE PARTICULAR REMEDY, THE
PURPOSE OR END SOUGHT TO BE ATTAINED, ARE ALL RELEVANT FACTS.  THIS IS
NOT BECAUSE A GOOD INTENTION WILL SAVE AN OTHERWISE OBJECTIONABLE
REGULATION OR THE REVERSE; BUT BECAUSE KNOWLEDGE OF INTENT MAY HELP THE
COURT TO INTERPRET FACTS AND TO PREDICT CONSEQUENCES."  CHICAGO BOARD
OF TRADE V. UNITED STATES, 246 U.S. 231, 238.  CF. UNITED STATES V;
PARKE, DAVIS & CO., 362 U.S. 29 (ECONOMICS OF THE DRUG DISTRIBUTION
BUSINESS); UNITED STATES V. ARNOLD, SCHWINN & CO;, 388 U.S; 365
(ECONOMICS OF THE BICYCLE BUSINESS).  IN THE LATTER CASE WE NOTED THAT
THE EVIDENCE OF RECORD "ELABORATELY SETS FORTH INFORMATION AS TO THE
TOTAL MARKET INTERACTION AND INTERBRAND COMPETITION, AS WELL AS THE
DISTRIBUTION PROGRAM AND PRACTICES;"  388 U.S.,AT 367. 

MR. JUSTICE HARLAN, DISSENTING. 

WHILE I ENTIRELY AGREE WITH THE VIEWS EXPRESSED BY MY BROTHER
STEWART AND HAVE JOINED HIS DISSENTING OPINION, THE COURT'S DISREAGRD
OF CERTAIN ECONOMIC CONSIDERATIONS UNDERLYING THE SHERMAN ACT WARRANTS
ADDITIONAL COMMENT. 

        I. 

THE PRACTICE OF SETTING GENUINE PRICE "CEILINGS," THAT IS MAXIMUM
PRICES, DIFFERS FROM THE PRACTICE OF FIXING MINIMUM PRICES, AND NO
ACCUMULATION OF PRONOUNCEMENTS FROM THE OPINIONS OF THIS COURT CAN
RENDER THE TWO ECONOMICALLY EQUIVALENT. 

THE ALLEGATION OF A COMBINATION OF PERSONS TO FIX MAXIMUM PRICES
UNDOUBTEDLY STATES A SHERMAN ACT CAUSE OF ACTION.  IN ORDER FOR A
PLAINTIFF TO WIN SUCH A SEC. 1 CASE, HOWEVER, HE MUST BE ABLE TO PROVE
THE EXISTENCE OF THE ALLEGED COMBINATION, AND THE DEFENDANT MUST BE
UNABLE, EITHER BY VIRTUE OF A PER SE RULE OR BY FAILURE OF PROOF AT
TRIAL, TO SHOW AN ADEQUATE JUSTIFICATION.  IT IS ON THESE TWO POINTS
THAT PRICE CEILINGS DIFFER FROM PRICE FLOORS:  TO HOLD THAT A
COMBINATION MAY BE INFERRED FROM THE VERTICAL DICTATION OF A MAXIMUM
PRICE SIMPLY BECAUSE IT MAY BE PERMISSIBLE TO INFER A COMBINATION FROM
THE VERTICAL DICTATION OF A MINIMUM PRICE IGNORES ECONOMIC REALITY; TO
CONCLUDE THAT NO ACCEPTABLE JUSTIFICATION FOR FIXING MAXIMUM PRICES CAN
BE FOUND SIMPLY BECAUSE THERE IS NO ACCEPTABLE JUSTIFICATION FOR FIXING
MAXIMUM PRICES CAN BE FOUND SIMPLY BECAUSE THERE IS NO ACCEPTABLE
JUSTIFICATION FOR FIXING MINIMUM PRICES IS TO SUBSTITUTE BLINDNESS FOR
ANALYSIS. 

RESALE PRICE MAINTENANCE, A PRACTICE NOT INVOLVED HERE, LESSENS
HORIZONTAL INTRABRAND COMPETITION.  THE EFFECTS, HIGHER PRICES, LESS
EFFICIENT USE OF RESOURCES, AND AN EASIER LIFE FOR THE RESELLERS, ARE
THE SAME WHETHER THE PRICE MAINTENANCE POLICY TAKES THE FORM OF A
HORIZONTAL CONSPIRACY AMONG RESELLERS OR OF VERTICAL DICTATION BY A
MANUFACTURER PLUS RESELLER ACQUIESCENCE; THIS MEANS TWO THINGS.  FIRST,
IT IS FREQUENTLY POSSIBLE TO INFER A COMBINATION OF RESELLERS BEHIND
WHAT IS PRESENTED TO THE WORLD AS A VERTICAL AND UNILATERAL PRICE
POLICY, BECAUSE IT IS THE RESELLERS AND NOT THE MANUFACTURER WHO REAP
THE DIRECT BENEFITS OF THE POLICY.  SECOND, PRICE FLOORS ARE PROPERLY
CONSIDERED PER SE RESTRAINTS, IN THE SENSE THAT ONCE A COMBINATION TO
CREATE THEM HAS BEEN DEMONSTRATED, NO PROFFERED JUSTIFICATION IS AN
ACCEPTABLE DEFENSE.  FOLLOWING THE RULE OF REASON, COMBINATIONS TO FIX
PRICE FLOORS ARE INVARIABLY UNREASONABLE:  TO THE EXTENT THAT THEY
ACHIEVE THEIR OBJECTIVE, THEY ACT TO THE DIRECT DETRIMENT OF THE PUBLIC
INTEREST AS VIEWED IN THE SHERMAN ACT.  IN THE ABSENCE OF
COUNTERVAILING FAIR TRADE LAWS, ALL ASSERTED JUSTIFICATIONS ARE, UPON
EXAMINATION, FOUND WANTING, EITHER BECAUSE THEY ARE TOO TRIVIAL OR
ELUSIVE TO WARRANT THE EXPENSE OF A TRIAL (AS IS THE CASE, FOR EXAMPLE,
WITH A DEFENSE THAT PRICE FLOORS MAINTAIN THE PRESTIGE OF A PRODUCT) OR
BECAUSE THEY RUN COUNTER TO SHERMAN ACT PREMISES (AS IS THE CASE WITH
THE DEFENSE THAT PRICE MAINTENANCE ENABLES INEFFICIENT SELLERS TO STAY
IN BUSINESS). 

VERTICALLY IMPOSED PRICE CEILINGS ARE, AS A MATTER OF ECONOMIC FACT
THAT THIS COURT'S WORDS CANNOT CHANGE, AN ALTOGETHER DIFFERENT MATTER. 
OTHER THINGS BEING EQUAL, A MANUFACTURER WOULD LIKE TO RESTRICT THOSE
DISTRIBUTING HIS PRODUCT TO THE LOWEST FEASIBLE PROFIT MARGIN, FOR IN
THIS WAY HE ACHIEVES THE LOWEST OVERALL PRICE TO THE PUBLIC AND THE
LARGEST VOLUME.  WHEN A MANUFACTURER DICTATES A MINIMUM RESALE PRICE HE
IS RESPONDING TO THE INTEREST OF HIS CUSTOMERS, WHO MAY TREAT HIS
PRODUCT BETTER IF THEY HAVE A SECURE HIGH MARGIN OF PROFITS.  WHEN THE
SAME MANUFACTURER DICTATES A PRICE CEILING, HOWEVER, HE IS ACTING
DIRECTLY IN HIS OWN INTEREST, AND THERE IS NOT ROOM FOR THE INFERENCE
THAT HE IS MERELY A MECHANISM FOR ACCOMPLISHING ANTICOMPETITIVE
PURPOSES OF HIS CUSTOMERS.  /1/ 

FURTHERMORE, THE RESTRAINT IMPOSED BY PRICE CEILINGS IS OF A
DIFFERENT ORDER FROM THAT IMPOSED BY PRICE FLOORS.  IN THE PRESENT CASE
THE COURT USES AGAIN THE FALLACIOUS ARGUMENT THAT PRICE CEILINGS AND
PRICE FLOORS MUST BE EQUALLY UNREASONABLE BECAUSE BOTH "CRIPPLE THE
FREEDOM OF TRADERS AND THEREBY RESTRAIN THEIR ABILITY TO SELL IN
ACCORDANCE WITH THEIR OWN JUDGMENT."  /2/  THE FACT OF THE MATTER IS
THAT THIS STATEMENT DOES NOT IN ITSELF JUSTIFY A PER SE RULE IN EITHER
THE MAXIMUM OR MINIMUM PRICE CASE, AND THAT THE REAL JUSTIFICATION FOR
A PER SE RULE IN THE CASE OF MINIMUMS HAS NOT BEEN SHOWN TO EXIST IN
THE CASE OF MAXIMUMS. 

IT HAS LONG BEEN RECOGNIZED THAT ONE OF THE OBJECTIVES OF THE SHERMAN
ACT WAS TO PRESERVE, FOR SOCIAL RATHER THAN ECONOMIC REASONS, A HIGH
DEGREE OF INDEPENDENCE, MULTIPLICITY, AND VARIETY IN THE ECONOMIC
SYSTEM.  RECOGNITION OF THIS OBJECTIVE DOES NOT, HOWEVER, REQUIRE THIS
COURT TO HOLD THAT EVERY COMMERCIAL ACT THAT FETTERS THE FREEDOM OF
SOME TRADER IS A PROPER SUBJECT FOR A PER SE RULE IN THE SENSE THAT IT
HAS NO ADEQUATE PROVABLE JUSTIFICATION.  SEE, E.G., WHITE MOTOR CO. V.
UNITED STATES, 372 U.S. 253.  THE PER SE TREATMENT OF PRICE MAINTENANCE
IS JUSTIFIED BECAUSE ANALYSIS ALONE, WITHOUT THE BURDEN OF A TRIAL IN
EACH INDIVIDUAL CASE, DEMONSTRATES THAT PRICE FLOORS ARE INVARIABLY
HARMFUL ON BALANCE.  /3/  PRICE CEILINGS ARE A DIFFERENT MATTER:  THEY
DO NOT LESSEN HORIZONTAL COMPETITION; THEY DRIVE PRICES TOWARD THE
LEVEL THAT WOULD BE SET BY INTENSE COMPETITION, AND THEY CANNOT GO
BELOW THIS LEVEL UNLESS THE MANUFACTURER WHO DICTATES THEM AND THE
CUSTOMER WHO ACCEPTS THEM HAVE BOTH MISCALCULATED.  SINCE PRICE
CEILINGS REFLECT THE MANUFACTURER'S VIEW THAT THERE IS INSUFFICIENT
COMPETITION TO DRIVE PRICES DOWN TO A COMPETITIVE LEVEL, THEY HAVE THE
ARGUABLE JUSTIFICATION THAT THEY PREVENT RETAILERS OR WHOLESALERS FROM
REAPING MONOPOLY OR SUPERCOMPETITIVE PROFITS. 

WHEN PRICE FLOORS AND PRICE CEILINGS ARE PLACED SIDE BY SIDE, THEN,
AND THE QUESTION IS ASKED OF EACH, "DOES ANALYSIS JUSTIFY A NO-TRIAL
RULE?"  THE ANSWERS MUST BE QUITE DIFFERENT.  BOTH PRACTICES SHARE THE
NEGATIVE ATTRIBUTE THAT THEY RESTRICT INDIVIDUAL DISCRETION IN THE
PRICING AREA, BUT ONLY THE FORMER IMPOSES UPON THE PUBLIC THE MUCH MORE
SIGNIFICANT EVIL OF LESSENED COMPETITION, AND, AS JUST SEEN, THE LATTER
HAS AN IMPORTANT ARGUABLE JUSTIFICATION THAT THE FORMER DOES NOT
POSSESS.  AS THE COURT'S OPINION PARTIALLY BUT INEXPLICITLY RECOGNIZES,
IN A MAXIMUM PRICE CASE THE ASSERTED JUSTIFICATION MUST BE MET ON ITS
MERITS, AND NOT BY INCANTATION OF A PER SE RULE DEVELOPED FOR AN
ALTOGETHER DIFFERENT SITUATION.  /4/

        II.     THE COURT'S DISCOVERY IN THIS CASE OF (A) A
COMBINATION AND (B) A RESTRAINT THAT IS PER SE UNREASONABLE IS BESET
WITH PITFALLS.  THE COURT RELIES DIRECTLY ON COMBINATIONS WITH MILNE
AND KRONER, TWO THIRD PARTIES WHO WERE SIMPLY HIRED AND PAID TO DO
TELEPHONING AND DISTRIBUTING JOBS THAT RESPONDENT COULD AS EFFECTIVELY
HAVE DONE ITSELF.  NEITHER HAD ANY SPECIAL INTEREST IN RESPONDENT'S
OBJECTIVE OF SETTING A PRICE CEILING.  IF THE CRITICAL QUESTION IS
WHETHER A COMPANY PAYS ONE OF ITS OWN EMPLOYEES TO PERFORM A ROUTINE
TASK, OR HIRES AN OUTSIDER TO DO THE SAME THING THE REQUIREMENT OF A
"COMBINATION" IN RESTRAINT OF TRADE HAS LOST ALL SIGNIFICANT MEANING. 
THE POINT IS MORE THAN THAT THE WORDS IN A STATUTE OUGHT TO BE TAKEN TO
MEAN SOMETHING OF SUBSTANCE.  THE PREMISE OF SEC. 1 ADJUDICATION HAS
ALWAYS BEEN THAT IT IS QUITE PROPER FOR A FIRM TO SET ITS OWN PRICES
AND DETERMINE ITS OWN TERRITORIES, BUT THAT IT MAY NOT DO SO IN
CONJUNCTION WITH ANOTHER FIRM WITH WHICH, IN COMBINATION, IT CAN
GENERATE MARKET POWER THAT NEITHER WOULD OTHERWISE HAVE.  A FIRM IS NOT
"COMBINING" TO FIX ITS OWN PRICES OR TERRITORY SIMPLY BECAUSE IT HIRES
OUTSIDE ACCOUNTANTS, MARKET ANALYSTS, ADVERTISERS BY TELEPHONE OR
OTHERWISE, OR DELIVERY BOYS.  ONCE IT IS RECOGNIZED THAT KRONER HAD NO
INTEREST WHATEVER IN FORCING HIS COMPETITOR TO LOWER HIS PRICE, AND WAS
MERELY BEING PAID TO PERFORM A DELIVERY JOB THAT RESPONDENT COULD HAVE
DONE ITSELF, IT IS CLEAR RESPONDENT'S ACTIVITY WAS IN ITS ESSENCE
UNILATERAL. 

THE COURT, QUITE EVIDENTLY DISSATISFIED WITH THE MILNE AND KRONER
THEORIES OF COMBINATION, GOES ON TO SUGGEST TWO OTHERS NOT CLAIMED. 
FIRST, IT IS SAID, PETITIONER MIGHT HAVE ALLEGED A COMBINATION WITH
OTHER CARRIERS WHO ACCEPTED RESPONDENT'S MAXIMUM PRICE.  THE DIFFICULTY
WITH THIS THESIS IS THAT SUCH A "COMBINATION" WOULD HAVE BEEN WHOLLY
IRRELEVANT TO WHAT WAS DONE TO PETITIONER.  IN A PRICE MAINTENANCE
SITUATION, EACH DISTRIBUTOR DOES HAVE AN INTERST IN PREVENTING OTHERS
FROM BREAKING THE PRICE LINE AND DRIVING EVERYONE'S PRICES DOWN, AND
THERE IS THUS A REAL SYMPHONY OF INTERESTS BEHIND THE PRESSURE EXERTED
ON ANY INDIVIDUAL RETAILER.  HOWEVER, IN CONTRAST, THE EFFECTIVENESS OF
A PRICE CEILING IMPOSED ON ONE DISTRIBUTOR DOES NOT DEPEND UPON THE
IMPOSITION OF CEILINGS ON OTHER DISTRIBUTORS, BE THEY COMPETITIVE OR
NOT.  EACH DISTRIBUTOR'S MAXIMUM PRICE AGREEMENT IS, FOR REASONS
ALREADY DISCUSSED, A VERTICAL MATTER ONLY, INDEPENDENT OF AGREEMENTS BY
OTHER DEALERS.  HENCE THE RESULT OF THE COURT'S THEORY HERE WOULD BE TO
MAKE WHAT WAS DONE TO THIS PETITIONER ILLEGAL BECAUSE OF THE
COINCIDENTAL EXISTENCE OF UNRELATED SIMILAR AGREEMENTS, AND TO BASE
PETITIONER'S RIGHT TO RECOVER UPON ACTIVITIES THAT ARE ALTOGETHER
IRRELEVANT TO WHATEVER HARM HE HAS SUFFERED. 

THE COURT ALSO SUGGESTS THAT, UNDER PARKE, DAVIS, "PETITIONER COULD
HAVE CLAIMED A COMBINATION BETWEEN RESPONDENT AND HIMSELF, AT LEAST AS
OF THE DAY HE UNWILLINGLY COMPLIED WITH RESPONDENT'S ADVERTISED
PRICE."  THIS THEORY IS INTRIGUING, BECAUSE ALTHOUGH IT IS UNSOUND ON
ITS FACE, IT HAS WITHIN IT THE RING OF SOMETHING FAMILIAR.  OBVIOUSLY
IT MAKES NO SENSE TO DENY RECOVERY TO A PRESSURED RETAILER WHO RESISTS
TEMPTATION TO THE LAST AND GRANT IT TO ONE WHO MOMENTARILY YIELDS BUT
IS RESTORED TO VIRTUE BY THE VISION OF TREBLE DAMAGES.  IT IS NOT THE
MOMENTARY ACQUIESCENCE BUT THE PUNISHMENT FOR REFUSING TO ACQUIESCE
THAT DOES THE DAMAGE ON WHICH RECOVER IS BASED. 

THE COURT'S DIFFICULTIES ON ALL OF ITS THEORIES STEM FROM ITS
UNWILLINGNESS TO FACE THE ULTIMATE CONCLUSION AT WHICH IT HAS ACTUALLY
ARRIVED:  IT IS UNLAWFUL FOR ONE PERSON TO DICTATE PRICE FLOORS OR
PRICE CEILINGS TO ANOTHER; ANY PRESSURE BROUGHT TO BEAR IN SUPPORT OF
SUCH DICTATION RENDERS THE DICTATOR LIABLE TO ANY DICTATEE WHO IS
DAMAGED.  THE REASON FOR THE COURT'S RELUCTANCE TO STATE THIS
CONCLUSION BLUNTLY IS TRANSPARENT:  THIS STATEMENT OF THE MATTER TAKES
NO ACCOUNT OF THE ABSENCE OF A COMBINATION OR CONSPIRACY. 

THIS DOES NOT MEAN, HOWEVER, THAT NO COMBINATION OR CONSPIRACY COULD
EVER BE INFERRED IN SUCH AN OSTENSIBLY UNILATERAL SITUATION.  IT WOULD
OFTEN BE PROPER TO INFER, IN SITUATIONS IN WHICH A MANUFACTURER
DICTATES A MINIMUM PRICE TO A RETAILER, THAT THE MANUFACTURER IS THE
MECHANISM FOR ENFORCING A VERY REAL COMBINATIORIAL RESTRAINT AMONG
RETAILERS WHO SHOULD BE COMPETING HORIZONTALLY.  /5/  INSTEAD OF
UNDERTAKING TO ANALYZE WHEN THIS INFERENCE WOULD BE PROPER, THE COURT
HAS IN THE PAST FOLLOWED THE ROUGH APPROXIMATION ADOPTED IN PARKE,
DAVIS:  /6/  THERE IS NO "COMBINATION" WHEN A MANUFACTURER SIMPLY
STATES A RESALE PRICE AND ANNOUNCES THAT HE WILL NOT DEAL WITH THOSE
WHO DEPART FROM IT; THERE IS A COMBINATION WHEN THE MANUFACTURER GOES
ONE INCH FURTHER.  THE MAGICAL QUALITY IN THIS TRANSFORMATION IS MORE
APPARENT THAN REAL, FOR THE UNDERLYING HORIZONTAL COMBINATION MAY
FREQUENTLY BE THERE AND THE COURT HAS SIMPLY FAILED TO STATE WHAT IT
IS.  /7/ 

WHEN A MANUFACTURER DICTATES A MAXIMUM PRICE, HOWEVER, THE PARKE,
DAVIS APPROACH DOES NOT YIELD EVEN A SATISFACTORY ROUGH ANSWER TO THE
QUESTION "(IS THERE A COMBINATION?"  FOR THE MANUFACTURER WHO PURPORTS
TO ACT UNILATERALLY IN DICTATING A MAXIMUM PRICE REALLY IS ACTING
UNILATERALLY.  NO ONE IS ECONOMICALLY INTERESTED IN THE PRICE SQUEEZE
BUT HIMSELF.  HAD THE COURT BEEN IN THE HABIT OF ANALYZING THE
ECONOMICS ON WHICH THE INFERENCE OF A COMBINATION MAY BE BASED, IT
WOULD HAVE SEEN THAT EVEN IF COMBINATIONS TO FIX MAXIMUM PRICES ARE AS
ILLEGAL AS COMBINATIONS TO FIX MINIMUM PRICES THE CIRCUMSTANCES UNDER
WHICH A COMBINATION TO FIX MAXIMUM PRICES MAY BE INFERRED ARE DIFFERENT
FROM THOSE WHICH IMPLY A COMBINATION TO KEEP PRICES UP. 

IT WAS FOR THIS REASON THAT IN KIEFER-STEWART CO. V. SEAGRAM & SONS,
340 U.S. 211, THE ONLY CASE IN THIS COURT IN WHICH MAXIMUM RESALE
PRICES HAVE ACTUALLY BEEN HELD UNLAWFUL, THE KEY QUESTION WAS WHETHER
THERE WAS AN ACTUAL HORIZONTAL COMBINATION OF MANUFACTURERS TO IMPOSE
ON RETAILERS A MAXIMUM RESALE PRICE.  THE COURT REFUSED TO HOLD THAT
DICTATION OF PRICE CEILINGS TO A SINGLE RETAILER BY A SINGLE
MANUFACTURER WAS UNLAWFUL, BUT INSTEAD INSISTED UPON, AND FOUND, A
SITUATION IN WHICH TWO MANUFACTURERS, IN THEIR COMMON INTEREST,
COMBINED TO IMPOSE UPON RETAILERS A CONDITION OF DOING BUSINESS WHICH
THEY MIGHT NOT HAVE BEEN ABLE TO DEMAND INDIVIDUALLY. 

KIEFER-STEWART'S TREATMENT OF THE COMBINATION REQUIREMENT IS
INSTRUCTIVE.  ANY MANUFACTURER IS AT PERFECT LIBERTY TO SET THE PRICES
AT WHICH HE WILL SELL TO RETAILERS, AND IN THAT WAY MAXIMIZE HIS
PROFITS WHILE LESSENING THEIRS.  COMPETITION, THAT IS THE THREAT THAT
THE PURCHASING SELLER WILL SIMPLY TURN TO ANOTHER MANUFACTURER,
PREVENTS THE MANUFACTURER FROM RAISING HIS PRICES BEYOND A CERTAIN
POINT.  IT IS PER SE UNLAWFUL, HOWEVER, FOR TWO MANUFACTURERS TO
COMBINE TO RAISE THEIR PRICES TOGETHER, RENDERING EACH OF THEM SECURE
BECAUSE THE RETAILER OR WHOLESALER HAS NOWHERE ELSE TO TURN.  FROM THE
MANUFACTURER'S VIEWPOINT, PUTTING A CEILING ON THE RESALE PRICE MAY BE
SIMPLY AN ALTERNATIVE MEANS TO THE END OF MAXIMIZING HIS OWN PROFITS BY
LESSENING DISTRIBUTION COSTS:  INSTEAD OF SQUEEZING THE RESELLER FROM
THE BOTTOM HE SQUEEZES FROM THE TOP.  THE HOLDING OF KIEFER-STEWART WAS
THAT THE SQUEEZE FROM THE TOP, LIKE THE SQUEEZE FROM THE BOTTOM, WAS
LAWFUL UNLESS BY A COMBINATION OF PERSONS BETWEEN WHOM COMPETITION
WOULD OTHERWISE HAVE LIMITED THE POWER TO SQUEEZE FROM EITHER
DIRECTION.  NO COMBINATION OF THE KIND REQUIRED IN KIEFER-STEWART
EXISTS HERE, AND THE COURT HAS FOUND NO SENSIBLE SUBSTITUTE THEORY OF
COMBINATION. 

THE COURT'S SECOND DIFFICULTY IN THIS CASE IS TO STATE WHY
IMPOSITION OF PRICE CEILINGS IS A PER SE UNLAWFUL RESTRAINT.  THE
RESPONDENT OFFERED AS A DEFENSE THE CONTENTION THAT SINCE THERE WAS NO
COMPETITION BETWEEN DISTRIBUTORS TO KEEP RESALE PRICES DOWN, A FIXED
MAXIMUM PRICE WAS IN THE INTEREST OF BOTH THE RESPONDENT ITSELF AND THE
PUBLIC.  THE COURT, RECOGNIZING THAT DESPITE SCATTERED DICTA ABOUT
MAXIMUM AND MINIMUM PRICES BOTH BEING PER SE ILLEGAL THERE WAS HERE AN
ALLEGED JUSTIFICATION THAT WOULD HAVE TO BE FACED ON ITS MERITS,
ATTEMPTS TO SHOW THAT THE DEFENSE MAY BE DISPOSED OF WITHOUT HEARING
EVIDENCE ON IT. 

THE COURT HAS NOT BEEN PERSUASIVE.  THE QUESTION IN THIS CASE IS NOT
WHETHER DICTATION OF MAXIMUM PRICES IS EVER ILLEGAL, BUT WHETHER IT IS
ALWAYS ILLEGAL.  PETITIONER IS SEEKING, AND NOW RECEIVES, A JUDGMENT
NOTWITHSTANDING THE VERDICT OF A JURY THAT HE HAD FAILED TO SHOW THAT
THE PRACTICE WAS UNREASONABLE IN THIS CASE.  THE BEST THE COURT CAN DO
IS TO LIST CERTAIN UNFORTUNATE CONSEQUENCES THAT MAXIMUM PRICE
DICTATION MIGHT HAVE IN OTHER CASES BUT WAS NOT SHOWN TO HAVE HERE. 
THEN, IN REJECTING THE SIGNIFICANT AFFIRMATIVE JUSTIFICATION OFFERED
FOR RESPONDENT'S PRACTICE, THE COURT MERELY SAYS, "THE ASSERTION THAT
ILLEGAL PRICE FIXING IS JUSTIFIED BECAUSE IT BLUNTS THE PERNICIOUS
CONSEQUENCES OF ANOTHER DISTRIBUTION PRACTICE IS UNPERSUASIVE."  ANTE,
AT 154.  I SHALL IGNORE THE INSERTION OF THE WORD "ILLEGAL," WHICH
MERELY ASSUMES THE CONCLUSION.  I CANNOT UNDERSTAND WHY, IN DECIDING
WHETHER A PRACTICE IS AN UNREASONABLE RESTRAINT OF TRADE, THE COURT
FINDS IT "UNPERSUASIVE" THAT THE PRACTICE BLUNTS PERNICIOUS ATTRIBUTES
OF AN EXISTING DISTRIBUTION SYSTEM. 

THE COURT'S ONLY ANSWER IS THAT THE COURTS BELOW DID NOT CONSIDER
WHETHER THE EXISTING DISTRIBUTION SYSTEM MIGHT ITSELF BE ILLEGAL.  BUT
EVEN ASSUMING THAT RESPEONDENT CAN CONCEIVABLY BE PENALIZED FOR FAILURE
TO RAISE THE QUESTION WHETHER THE DISTRIBUTION SYSTEM, UNCHALLENGED BY
PETITIONER, WAS LAWFUL, THE COURT'S ARGUMENT FALLS SHORT.  THE COURT
HAS DECIDED THAT EXCLUSIVE TERRITORIES AND CONSEQUENT MARKET POWER CAN
NEVER BE A JUSTIFICATION FOR DICTATION OF MAXIMUM PRICES BECAUSE
EXCLUSIVE TERRITORIES ARE SOMETIMES UNLAWFUL.  BUT THEY ARE NEITHER
ALWYAS UNLAWFUL NOR HAVE THEY BEEN DEMONSTRATED TO BE UNLAWFUL IN THIS
CASE. 

IT MAY WELL BE THAT THE MECHANICS OF NEWSPAPER DISTRIBUTION ARE SUCH
THAT A CITY QUITE NATURALLY DIVIDES ITSELF INTO ONE OR MORE RELATIVELY
EXCLUSIVE TERRITORIES (SOMETIMES CALLED "PAPER ROUTES"), GIVING EACH
DISTRIBUTOR A LARGE DEGREE OF MONOPOLY POWER.  IT IS HARDLY FARFETCHED
TO ASSUME THAT A NEWSPAPER MIGHT BE ABLE TO PROVE (IF GIVEN THE
OPPORTUNITY IT IS TODAY DENIED) THAT ROUGH TERRITORIAL EXCLUSIVITY IS
SIMPLY A FACT OF ECONOMIC LIFE IN THE NEWSPAPER DISTRIBUTING BUSINESS,
BOTH BECAUSE THE NATURE OF THE ENTERPRISE DICTATES COMPACTNESS OF
ROUTES AND BECAUSE THE NUMBER OF DISTRIBUTORS THAT A PARTICULAR AREA
CAN SUSTAIN IS NECESSARILY SO SMALL THAT THEY NATURALLY FALL INTO
OLIGOPOLISTIC RESPECT FOR EACH OTHER'S TERRITORIES, AND INTO A PATTERN
OF PRICE LEADERSHIP. 

THERE IS NO QUESTION THAT THE IDEAL SITUATION, FROM THE POINT OF
VIEW OF BOTH THE PUBLISHER AND THE PUBLIC, IS TO HAVE A VERY LARGE
NUMBER OF DISTRIBUTORS INTENSELY VYING WITH EACH OTHER IN BOTH PRICE
AND SERVICE.  THIS SITUATION, HOWEVER, MAY BE ONE THAT IT IS IMPOSSIBLE
TO ACHIEVE IN SOME, PERHAPS IN ALL, CITIES.  IT SEEMS QUITE POSSIBLE
THAT A PUBLISHER WHO DOES NOT WANT TO DO HIS OWN DISTRIBUTING MUST LIVE
WITH THE FACT THAT THERE WILL ALWAYS BE A RELATIVELY SMALL NUMBER OF
COMPETING DISTRIBUTORS, WHO CONSEQUENTLY WILL BE LIKELY TO FALL INTO
LAWFUL BUT UNDESIRABLE OLIGOPOLISTIC BEHAVIOR-- PRICE LEADERSHIP AND
TERRITORIAL EXCLUSIVITY. 

CONFRONTED BY THIS SITUATION, THE PUBLISHER, WHO IS COMPETING WITH
OTHER PUBLISHERS IN, AMONG OTHER THINGS, PRICE AND SERVICE TO THE
PUBLIC, WILL SEEK TO PROVIDE EFFICIENT DISTRIBUTION SERVICE AT THE
LOWEST POSSIBLE PRICE.  THESE OBJECTIVES WOULD BE REALIZED BY INTENSE
COMPETITION WITHOUT THE PUBLISHER'S INTERFERENCE, BUT IN THE ABSENCE OF
SUCH COMPETITION THE PUBLISHER MUST TAKE STEPS OF HIS OWN. 

THE PRESENT RESPONDENT TOOK TWO STEPS.  FIRST, IT INSISTED ON THE
RIGHT TO APPROVE EACH DISTRIBUTOR.  NATURALLY, SINCE NEWSPAPERMEN ARE
NOTORIOUSLY REALISTIC, IT REFERRED TO THE ACQUISITION OF A
DISTRIBUTORSHIP AS THE PURCHASE OF A "ROUTE."  SECOND, IT SET A MAXIMUM
HOME DELIVERY PRICE AND ENFORCED IT; THE PRICE COULD NOT BE BELOW THE
LEVEL THAT PERFECT COMPETITION WOULD DICTATE WITHOUT DRIVING THE
DISTRIBUTORS OUT OF BUSINESS AND DEFEATING THE PUBLISHER'S WHOLE
OBJECTIVE.  HENCE THE PRICE SET CANNOT BE SUPPOSED TO HAVE BEEN
UNREASONABLE.  /8/  RESPONDENT HAD NO NEED TO GO TO THE EXGREME OF
CUTTING OFF DISTRIBUTORS PREFERRING TO DO A HIGH-PROFIT, LOW-VOLUME
BUSINESS, AND DID NOT DO SO.  IT SIMPLY ADVERTISED THE MAXIMUM HOME
DELIVERY PRICE AND CREATED COMPETITION WITH ANY DISTRIBUTOR NOT
OBSERVING IT.  TODAY'S DECISION LEAVES RESPONDENT WITH NO ALTERNATIVE
BUT TO USE ITS OWN TRUCKS. 

FOR THE REASONS STATED IN MY BROTHER STEWART'S OPINION AND THOSE
STATED HERE, I WOULD AFFIRM THE JUDGMENT BELOW. 

/1/  SEE THE OPINION OF JUDGE COFFIN IN QUINN V. MOBIL OIL CO., 375
F.2D 273, 276. 

/2/  KIEFER-STEWART CO. V. SEAGRAM & SONS, 340 U.S. 211, 213. 

/3/  SEE THE ANALYSIS IN THE LEADING CASE, UNITED STATES V; TRENTON
POTTERIES CO., 273 U.S. 392, AT 395-402.  PRICE FLOORS, OR OTHER
AGREEMENTS TO PREVENT PRICE CUTTING, ARE THERE HELD TO BE PER SE
UNREASONABLE BECAUSE THEY INEVITABLY LESSEN COMPETITION.  THERE IS NO
REFERENCE TO THE PURELY COLLATERAL EFFECT OF LIMITING INDIVIDUAL TRADER
DISCRETION, STILL LESS TO A PROGRAM SUCH AS THE ONE INVOLVED IN THIS
CASE THAT DOES NOT INHIBIT COMPETITIVE PRICE CUTTING. 

/4/  THE SAME POINTS MAY BE MADE FROM THE PERSPECTIVE OF THE
RETAILERS OR WHOLESALERS SUBJECT TO THE PRICE DICTATION; WHEN THE ISSUE
IS MINIMUM RESALE PRICES, THOSE SELLERS WHO ARE MORE EFFICIENT AND
AMBITIOUS ARE LIKELY TO OBJECT TO PRICE RESTRICTIONS, WHILE THE LAZIER
AND LESS EFFICIENT SELLERS WILL WELCOME THEIR PROTECTION.  WHEN THE
ISSUE IS PRICE CEILINGS, THE MATTER IS DIFFERENT.  ASSUMING THE
CEILINGS ARE HIGH ENOUGH TO PERMIT A RETURN THAT WILL ENABLE THE SELLER
TO STAY IN BUSINESS, A SELLER WILL OBJECT TO PRICE CEILINGS ONLY
BECAUSE THEY DENY HIM THE SUPERCOMPETITIVE RETURN THAT THE
IMPERFECTIONS OF COMPETITION WOULD OTHERWISE PERMIT.  AT THE SAME TIME,
IN STARK CONTRAST TO THE SITUATION INVILVED IN RESALE PRICE
MAINTENANCE, NO SELLER HAS ANY INTEREST IN INSISTING THAT PRICE
CEILINGS BE IMPOSED ON HIS COMPETITIORS; HE IS NOT WORRIED THAT THEY
MAY SELL AT A HIGHER PRICE THAN HIS OWN.  HUS WHILE RESALE PRICE
MAINTENANCE ESTABLISHES WHAT IS THE EQUIVALENT OF A SINGLE HORIZONTAL
RESTRAINT ON OTHERWISE COMPETITIVE SELLERS, PRICE CEILINGS ESTABLISH
MERELY A SERIES OF DISTINCT VERTICAL RELATIONSHIPS BETWEEN MANUFACTURER
AND SELLER, WITH NO ONE SELLER ECONOMICALLY INTERESTED IN THE
MAINTENANCE OF THE VERTICAL RELATIONSHIP WITH ANY OTHER SELLER. 

/5/  SEE TURNER, THE DEFINITION OF AGREEMENT UNDER THE SHERMAN ACT:
CONSCIOUS PARRALLELISM AND REFUSALS TO DEAL, 75 HARV.L.REV.  655. 
PROFESSOR TURNER (AS HE THEN WAS) SUGGESTED THE OVERRULING OF UNITED
STATES V. COLGATE & CO., 250 U.S. 300, ARGUING, INTER ALIA, THAT
COLGATE BEHAVIOR BY A MANUFACTURER TENDS TO PRODUCE TACIT OR IMPLIED
MINIMUM PRICE AGREEMENTS AMONG OTHERWISE COMPETITIVE RETAILERS.  HE
SUGGESTED THAT "IT SHOULD BE PERFECTLY CLEAR TO ANY MANUFACTURER THAT A
POLICY OF REFUSING TO DEAL WITH PRICE CUTTERS IS NO MORE NOR LESS THAN
AN INVITATION (TO RETAILERS) TO AGREE (WITH EACH OTHER AS WELL AS WITH
THE MANUFACTURER) ON . . . A MINIMUM PRICE.  . . . "  ID., AT 689. 

/6/  UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29. 

/7/  I THOUGHT AT THE TIME PARKE, DAVIS WAS DECIDED (SEE MY
DISSENTING OPINION IN THAT CASE, 362 U.S.,AT 49) AND CONTINUE TO
BELIEVE, THAT THE RESULT REACHED COULD NOT BE SUPPORTED ON THE
MAJORITY'S REASONING.  I AM FRANK TO SAY, HOWEVER, THAT I NOW CONSIDER
THAT THE PARKE, DAVIS RESULT CAN BE SUPPORTED ON PROFESSOR TURNER'S
RATIONALE.  SEE TURNER, SUPRA, N. 5, AT 684-691.  FURTHER REFLECTION ON
THE MATTER ALSO LEADS ME TO SAY THAT MY STATEMENT IN DISSENT TO THE
EFFECT THAT PARKE, DAVIS HAD OVERRULED THE COLGATE CASE WAS OVERDRAWN,
AND FURTHER THAT I AM NOT YET PREPARED TO SAY THAT PROFESSOR TURNER'S
RATIONALE NECESSARILY CARRIES THE TOTAL DISCARD OF COLGATE. 

/8/  REASONABLENESS IS ALSO EVIDENCED BY THE ABUNDANCE OF PERSONS
WILLING TO DISTRIBUTE NEWSPAPERS AT OR BELOW THE FIXED CEILINGS.  THE
POINT IS NOT AFFECTED BY THE FACT THAT THE DISTRIBUTORS WILLING TO
ACCEPT RESPONDENT'S CONDITIONS WERE BUYING MONOPOLIES.  THE PRINCIPAL
VIRTUE OF A MONOPOLIY IS THE POWER OF THE MONOPOLIST TO CHARGE
SUPERCOMPETITIVE PRICES.  HENCE IT CANNOT BE ARGUED THAT THE CEILINGS
MIGHT HAVE PROVED TOO LOW TO ATTRACT BUYERS BUT FOR THE FACT THAT THEY
WERE ACCOMPANIED BY MONOPOLY POWER. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN JOINS,
DISSENTING. 

THE RESPONDENT IS THE PUBLISHER OF THE ONLY DAILY MORNING NEWSPAPER
IN ST. LOUIS.  THE PETITIONER WAS ONE OF SOME 170 INDEPENDENT
DISTRIBUTORS WHO BOUGHT COPIES OF THE PAPER FROM THE RESPONDENT AND
SOLD THEM TO HOUSEHOLDERS.  EACH DISTRIBUTOR HAD AN EXCLUSIVE TERRITORY
SUBJECT ONLY TO THE CONDITION THAT HIS RESALE PRICE NOT EXCEED A STATED
MAXIMUM.  WHEN THE PETITIONER'S PRICE DID EXCEED THAT MAXIMUM, THE
RESPONDENT ALLOWED AND INDEED ACTIVELY ASSISTED ANOTHER DISTRIBUTOR TO
ENTER THE PETITIONER'S TERRITORY AND COMPETE WITH HIM.  THE COURT TODAY
HOLDS THAT THIS LATTER PRACTICE BY THE RESPONDENT SUBJECTED IT TO
ANTITRUST LIABILITY TO THE PETITIONER.  I CANNOT UNDERSTAND WHY. 

THE CASE WAS LITIGATED THROUGHOUT BY BOTH PARTIES UPON THE PREMISE
THAT THE RESPONDENT'S GRANTING OF AN EXCLUSIVE TERITORY TO EACH
DISTRIBUTOR WAS A PERFECTLY PERMISSIBLE PRACTICE.  UPON THAT PREMISE
THE JUDGMENT OF THE COURT OF APPEALS WAS OBVIOUSLY CORRECT.  FOR THE
RESPONDENT'S CONDUCT HERE WAS IN FURTHERANCE OF, NOT CONTRARY TO, THE
PURPOSES OF THE ANTITRUST LAWS.  THE PETITIONER WAS A MONOPOLIST WITHIN
HIS OWN TERRITORY; HE WAS THE ONLY PERSON WHO COULD SELL FOR HOME
DELIVERY THE CITY'S ONLY DAILY MORNING NEWSPAPER.  BUT FOR THE FACT
THAT RESPONDENT PROVIDED COMPETITION ABOVE A CERTAIN PRICE LEVEL, THE
HOUSEHOLDERS WOULD HAVE BEEN TOTALLY WITHOUT PROTECTION FROM THE
PETITIONER'S MONOPOLY POSITION.  THE CASES CITED BY THE PETITIONER,
SUCH AS KIEFER-STEWART CO. V. SEAGRAM & SONS, 340 U.S. 211, AND UNITED
STATES V. PARKE, DAVIS & CO., 362 U.S. 29, DID NOT INVOLVE MONOPOLY
PRODUCTS DISTRIBUTED THROUGH EXCLUSIVE TERRITORIES AND ARE THUS TOTALLY
INAPPLICABLE HERE.  THE THRUST OF THOSE DECISIONS IS THAT THE RESELLER
SHOULD BE FREE TO MAKE HIS OWN INDEPENDENT PRICING DETERMINATION.  BUT
THAT CANNOT BE A PROPER OBJECTIVE WHERE THE RESELLER IS A MONOPOLIST. 
/1/  TO THE EXTENT THAT THE RESPONDENT PREVENTED THE PETITIONER FROM
RAISING HIS PRICE ABOVE THAT WHICH WOULD HAVE PREVAILED IN A
COMPETITIVE MARKET, THE RESPONDENT'S ACTIONS WERE FULLY COMPATIBLE WITH
THE ANTITRUST LAWS.  /2/ 

BUT, SAYS THE COURT, THE ORIGINAL GRANT OF AN EXCLUSIVE TERRITORY TO
THE PETITIONER MAY HAVE ITSELF VIOLATED THE ANTITRUST LAWS.  PUTTING
ASIDE THE FACT THAT THIS QUESTION WAS NOT BRIEFED OR ARGUED EITHER HERE
OR IN THE COURT BELOW, I FAIL TO UNDERSTAND HOW THE ILLEGALITY OF THE
PETITIONER'S EXCLUSIVE TERRITORY COULD CONCEIVABLY HELP HIS CASE.  THE
PETITIONER ENJOYED THE BENEFITS OF HIS EXCLUSIVE TERRITORY SUBJECT TO
THE CONDITION THAT HE KEEP HIS PRICE AT OR BELOW A STATED MAXIMUM. 
WHEN HE DID CHARGE MORE, THE RESPONDENT TOOK STEPS TO FORCE THE
PETITIONER'S PRICE DOWN BY INTRODUCING COMPETITION INTO HIS TERRITORY. 
IF IT WAS ILLEGAL IN THE FIRST PLACE FOR THE PETITIONER TO ENJOY A
CONDITIONAL MONOPOLY, I AM AT A LOSS TO UNDERSTAND HOW THE RESPONDENT
CAN BE LIABLE TO THE PETITIONER FOR NOT PERMITTING HIM A COMPLETE
MONOPOLY. 

THE COURT IN THIS CASE DOES MORE, I THINK, THAN SIMPLY DEPART FROM
THE FULE OF REASON.  /3/  STANDARD OIL CO. V. UNITED STATES, 221 U.S.
1.  THE COURT TODAY STANDS THE SHERMAN ACT ON ITS HEAD.  /4/ 

/1/  SEE ELMAN, "PETRIFIED OPINIONS" AND COMPETITIVE REALITIES, 66
COL.L.REV.  625, 633 (1966). 

/2/  BECAUSE THE MAJOR PORTION OF THE RESPONDENT'S INCOME DERIVES
FROM ADVERTISING RATHER THAN FROM SALES TO DISTRIBUTORS, THE
RESPONDENT'S SELF-INTEREST IS IN KEEPING THE RETAIL PRICE OF THE PAPER
LOW IN ORDER TO INCREASE CIRCULATION AND THEREBY INCREASE ADVERTISING
REVENUES.  HOWEVER, NEITHER THE PETITIONER NOR THE COURT SUGGESTS THAT
THE MAXIMUM SET BY THE RESPONDENT WAS LESS THAN THE PRICE THAT WOULD
HAVE PREVAILED IF THERE HAD BEEN COMPETITION AMONG THE DISTRIBUTORS. 

/3/  SEE GENERALLY ELMAN, "PETRIFIED OPINIONS" AND COMPETITIVE
REALITIES, 66 COL.L.REV.  625 (1966).  "IT SHOULD BE PLAIN WHY THERE IS
A REAL DANGER OF THE ABUSE OF THE PER SE PRINCIPLE BY THOSE PREDISPOSED
TO OFFER MECHANICAL OR DOGMATIC SOLUTIONS TO LEGAL PROBLEMS.  IN EVERY
ANTITRUST CASE THERE ARE TWO ROUTES TO A FINDING OF ILLEGALITY:
CRITICALLY ANALYZING THE COMPETITIVE EFFECTS AND POSSIBLE
JUSTIFICATIONS OF THE CHALLENGED PRACTICE; OR SUBSUMING IT UNDER ONE OF
THE PER SE RULES.  THE LATTER ROUTE IS NATURALLY THE MORE TEMPTING; IT
IS EASIER TO CLASSIFY A PRACTICE IN A FORBIDDEN CATEGORY THAN TO
DEMONSTRATE FROM THE GROUND UP, AS IT WERE, WHY IT IS AGAINST PUBLIC
POLICY AND SHOULD BE FORBIDDEN."  ID., AT 627. 

/4/  "THE SUPREME COURT SHOWS A GROWING DETERMINATION IN ITS
ANTITRUST DECISIONS TO CONVERT LAWS DESIGNED TO PROMOTE COMPETITION
INTO LAWS WHICH REGULATE OR HAMPER THE COMPETITIVE PROCESS."  BOWMAN,
RESTRAINT OF TRADE BY THE SUPREME COURT:  THE UTAH PIE CASE, 77 YALE
L.J. 70 (1967). 

GRAY L. DORSEY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WAS DONALD S. SIEGEL. 

LON HOCKER ARGUED THE CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF
WAS THOMAS NEWMAN. 

ARTHUR B. HANSON FILED A BRIEF FOR THE AMERICAN NEWSPAPER PUBLISHERS
ASSOCIATION, AS AMICUS CURIAE, URGING AFFIRMANCE. 
..END :















UNITED STATES V. THIRD NAT. BANK, 390 U.S. 171 


       UNITED STATES V. THIRD NATIONAL BANK IN NASHVILLE ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

           DISTRICT OF TENNESSEE. 

   NO. 86.  ARGUED DECEMBER 11, 1967.-- DECIDED MARCH 4, 1968. 


THIRD NATIONAL BANK IN NASHVILLE AND NASHVILLE BANK AND TRUST CO.,
THE SECOND AND FOURTH LARGEST BANKS IN DAVIDSON COUNTY, TENNESSEE,
MERGED ON AUGUST 18, 1964.  AFTER THE MERGER THE THREE LARGEST BANKS
HAD 97.9% OF THE TOTAL BANK ASSETS IN THE COUNTY, AND THE TWO LARGEST
BANKS HAD 76.7%.  THE GOVERNMENT'S SUIT CHALLENGING THE MERGER HAD NOT
COME TO TRIAL WHEN THE BANK MERGER ACT OF 1966 TOOK EFFECT, ON FEBRUARY
21, 1966.  THE ACT DID NOT PROVIDE ANTITRUST IMMUNITY FOR THE MERGER
BUT DID STATE THAT COURTS "SHALL APPLY THE SUBSTANTIVE RULE OF LAW SET
FORTH" IN THE ACT TO PENDING CASES.  SECTION 5 OF THE ACT PROHIBITS
APPROVAL OF A MERGER WHOSE EFFECT "MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION" UNLESS THE ANTICOMPETITIVE EFFECTS "ARE CLEARLY OUTWEIGHED
IN THE PUBLIC INTEREST BY THE PROBABLE EFFECT OF THE TRANSACTION IN
MEETING THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE SERVED."  THE
DISTRICT COURT ASSERTED THAT THE ACT ALTERED THE STANDARDS USED IN
DETERMINING WHETHER A MERGER VIOLATED SEC. 7 OF THE CLAYTON ACT AND
SEC. 1 OF THE SHERMAN ACT AND MANDATED A RETURN TO UNITED STATES V.
COLUMBIA STEEL CO., 334 U.S. 495 (1948).  THE COURT FOUND THAT
NASHVILLE BANK AND TRUST WAS A "STAGNANT AND FLOUNDERING BANK,"
SUFFERING FROM LACK OF YOUNG AND AGGRESSIVE OFFICERS.  IT HELD THAT THE
MERGER WOULD NOT TEND SUBSTANTIALLY TO LESSEN COMPETITION AND ALSO THAT
ANY ANTICOMPETITIVE EFFECT WOULD BE OUTWEIGHED BY BENEFITS TO THE
"CONVENIENCE AND NEEDS OF THE COMMUNITY."  HELD: 

1.  THE BANK MERGER ACT OF 1966 REQUIRES DE NOVO INQUIRY BY THE
DISTRICT COURTS INTO THE VALIDITY OF BANK MERGERS TO DETERMINE WHETHER
THE MERGER OFFENDS THE ANTITRUST LAWS, AND, IF IT DOES, WHETHER THE
BANKS HAVE ESTABLISHED THAT THE MERGER IS JUSTIFIED BY BENEFITS TO THE
"CONVENIENCE AND NEEDS OF THE COMMUNITY."  UNITED STATES V. FIRST CITY
NATIONAL BANK OF HOUSTON, 386 U.S. 361 (1967).  P. 178. 

2.  THE ACT, WHICH ADOPTED THE LANGUAGE OF SEC. 7 OF THE CLAYTON
ACT, "SUBSTANTIALLY TO LESSEN COMPETITION," DID NOT PROVIDE A DIFFERENT
ANTITRUST STANDARD FOR BANK CASES, AND THEREFORE THE DISTRICT COURT
APPLIED AN ERRONEOUS CLAYTON ACT STANDARD TO THE MERGER.  PP. 181-182. 

3.  ON THE FACTS OF THIS CASE, THE MERGER DID TEND SUBSTANTIALLY TO
LESSEN COMPETITION IN THE NASHVILLE COMMERCIAL BANKING MARKET.  P.
183. 

4.  THE LOWER COURT MISAPPREHENDED THE MEANING OF THE PHRASE
"CONVENIENCE AND NEEDS OF THE COMMUNITY," AND MISUNDERSTOOD THE WEIGHT
TO BE GIVEN THE RELEVANT FACTORS IN DETERMINING WHETHER THE
ANTICOMPETITIVE EFFECTS ARE "CLEARLY OUTWEIGHED IN THE PUBLIC INTERES"
BY THE EFFECTS ON THE CONVENIENCE AND NEEDS OF THE COMMUNITY.  PP. 184
192. 

  (A) WHILE THE DISTRICT COURT NOTED THE INCREASED LOAN CAPACITY OF
THE MERGED BANK, IT WAS NOT SPECIFIC IN DESCRIBING THE BENEFICIAL
CONSEQUENCES THEREOF TO THE NASHVILLE COMMUNITY, OR IN DEFINING THE
VALUE OF SUCH INCREASE, ESPECIALLY AS COMPARED WITH LESS DESIRABLE
RESULTS OF THE MERGER.  P. 186. 

  (B) THE DISTRICT COURT'S ANALYSIS DID NOT EXPLORE POSSIBLE WAYS
OF SATISFYING THE COMMUNITY'S CONVENIENCE AND NEEDS WITHOUT MERGER.  IT
WAS INCUMBENT ON THE BANKS TO DEMONSTRATE THAT THEY MADE REASONABLE
EFFORTS TO SOLVE NASHVILLE BANK AND TRUST'S MANAGEMENT DILEMMA SHORT OF
MERGER WITH A MAJOR COMPETITOR.  P. 189. 

  (C) THE FINDINGS OF THE DISTRICT COURT DO NOT SUFFICIENTLY
ESTABLISH THE UNAVAILABILITY OF ALTERNATIVE SOLUTIONS TO NASHVILLE BANK
AND TRUST'S PROBLEMS.  PP. 190-192. 

5.  THE CASE IS REMANDED SO THAT THE LOWER COURT CAN CONSIDER AGAIN
THE ACT'S APPLICATION TO THE FACTS OF THIS MERGER; AND SINCE THE
DISTRICT COURT HEARD THIS CASE BEFORE HOUSTON BANK, SUPRA, WAS DECIDED,
IT MAY WISH TO CONSIDER REOPENING THE RECORD TO PERMIT THE PRESENTATION
OF NEW EVIDENCE IN LIGHT OF THE INTERVENING INTERPRETATIONS OF THE
ACT.  P. 192. 

260 F.SUPP.  869, REVERSED AND REMANDED. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE UNITED STATES APPEALS FROM A DISTRICT COURT
DECISION /1/  UPHOLDING THE MERGER OF THIRD NATIONAL BANK IN NASHVILLE
AND NASHVILLE BANK AND TRUST COMPANY AGAINST CHALLENGE UNDER SEC. 7 OF
THE CLAYTON ACT.  THE COURT BELOW CONCLUDED THAT THE MERGER, WHICH
JOINED THE SECOND LARGEST AND THE FOURTH LARGEST BANKS IN DAVIDSON
COUNTY, TENNESSEE, INTO A BANK WHICH IMMEDIATELY AFTER THE MERGER WAS
THE COUNTY'S LARGEST BANK BUT SINCE HAS BECOME THE SECOND LARGEST,
WOULD NOT TEND SUBSTANTIALLY TO LESSEN COMPETITION AND ALSO THAT ANY
ANTICOMPETITIVE EFFECT WOULD BE OUTWEIGHED BY THE "CONVENIENCE AND
NEEDS OF THE COMMUNITY TO BE SERVED."  WE DISAGREE WITH THE DISTRICT
COURT ON BOTH ISSUES.  WE HOLD THAT THE UNITED STATES ESTABLISHED THAT
THIS MERGER WOULD TEND TO LESSEN COMPETITION, AND ALSO THAT THE
DISTRICT COURT DID NOT POINT TO COMMUNITY BENEFITS IN TERMS OF
"CONVENIENCE AND NEEDS"  SUFFICIENT TO OUTWEIGH THE ANTICOMPETITIVE
IMPACT. 

        I. 

LIKE OTHER URBAN CENTERS IN THE SOUTHEAST, NASHVILLE HAS GROWN
STEADILY SINCE WORLD WAR II IN BOTH POPULATION AND ECONOMIC ACTIVITY. 
COMMERCIAL BANKS, AS "THE INTERMEDIARIES IN MOST FINANCIAL
TRANSACTIONS,"  /2/  GREW ALONG WITH THEIR CITY.  FROM 1955 TO 1964,
FOR EXAMPLE, TOTAL ASSETS OF ALL BANKS LOCATED IN DAVIDSON COUNTY
INCREASED FROM $548,300,000 TO $1,053,700,000, AN INCREASE OF 92.2%.
THE NUMBER OF BANKS HARDLY CHANGED.  INDEED, SINCE 1927 THERE HAS BEEN
ONLY ONE NEW BANK IN THE COUNTY, CAPITAL CITY BANK, AND AT THE TIME OF
THIS MERGER IT HAD ACHIEVED ONLY .9% OF THE COUNTY'S BANK ASSETS.  THE
OTHER BANKS AT THE TIME OF THE MERGER, AND THEIR PERCENTAGE OF TOTAL
BANK ASSETS IN DAVIDSON COUNTY, WERE FIRST AMERICAN NATIONAL, 38.3%;
THIRD NATIONAL, 33.6%; COMMERCE UNION, 21.2%; NASHVILLE BANK, 4.8%; AND
THREE SMALL BANKS, TWO OF THEM LOCATED IN DAVIDSON COUNTY TOWNS OUTSIDE
NASHVILLE, .6%, .3%, AND .3%.  /3/  THE MERGER BEFORE US THUS JOINED
ONE OF THE THREE VERY LARGE BANKS IN NASHVILLE AND THE ONE MIDDLE-SIZED
BANK.  ITS RESULT WAS TO INCREASE FROM 93.1% TO 97;9% THE PERCENTAGE OF
TOTAL ASSETS HELD BY THE THREE LARGEST BANKS AND FROM 71.9% TO 76.7%
THE PERCENTAGE HELD BY THE TWO LARGEST INSTITUTIONS. 

THE TWO MERGING BANKS PLAYED SIGNIFICANTLY DIFFERENT ROLES IN
NASHVILLE BANKING.  THIRD NATIONAL WAS CHARACTERIZED BY THE COMPTROLLER
OF THE CURRENCY AS ONE OF THE STRONGEST AND BEST MANAGED BANKS IN THE
NATION AND BY THE DISTRICT COURT AS "STRONG, DYNAMIC AND AGGRESSIVE." 
/4/  IT HAD "A HISTORY OF INNOVATING SERVICES OR PROMPTLY PROVIDING NEW
SERVICES,"  /5/  A RECRUITMENT PROGRAM AT LOCAL UNIVERSITIES, A
CONTINUOUS AUDIT PROGRAM, AND A LEGAL LENDING LIMIT OF $2,000,000.  IT
HAD 14 BRANCHES AT THE TIME OF THE MERGER AND SERVED AS CORRESPONDENT
FOR SMALLER BANKS LOCATED THROUGHOUT THE CENTRAL SOUTH. 

NASHVILLE BANK AND TRUST APPROACHED THE MERGER WITH A MORE CHECKERED
HISTORY AND A LESS DYNAMIC PRESENT.  UNTIL 1956 IT WAS LARGELY A TRUST
INSTITUTION.  IN THAT YEAR, UNDER THE DIRECTION OF W. S. HACKWORTH, IT
CHANGED ITS NAME FROM NASHVILLE TRUST COMPANY AND EMBARKED ON A DRIVE
TO BECOME A FULL-SERVICE COMMERCIAL BANK.  THIS PROGRAM ENJOYED
CONSIDERABLE SUCCESS.  BETWEEN 1955 AND 1964, NASHVILLE BANK'S DEPOSITS
GREW FROM $20,800,000 TO $45,500,000, AND ITS LOANS AND DISCOUNTS FROM
$8,100,000 TO $22,800,000.  IN BOTH CATEGORIES IT GREW FASTER THAN THE
COUNTY AVERAGE AND FASTER THAN THIRD NATIONAL.  THIS GROWTH, HOWEVER,
OCCURRED AT A SUBSTANTIALLY FASTER RATE BEFORE 1960 THAN AFTER THAT
YEAR.  BEFORE 1960 IT WAS GROWING MORE RAPIDLY THAN THE OTHER BANKS IN
THEY COUNTY, AND AFTER THAT YEAR MORE SLOWLY.  ITS SHARE OF TOTAL
NASHVILLE BANKING BUSINESS THUS DECLINED FROM A HIGH OF 5.72% ON JUNE
30, 1960, TO 4.83% ON JUNE 30, 1964. 

THE DISTRICT COURT MADE ELABORATE FINDINGS AS TO WHY NASHVILLE BANK
AND TRUST "REACHED A PLATEAU ON WHICH IT REMAINED UNTIL THE DATE OF THE
MERGER" AND WHY IN THIS PERIOD "IT WAS A STAGNANT AND FLOUNDERING
BANK."  /6/  FROM THOSE FINDINGS, AND FROM THE BROAD PICTURE OF
NASHVILLE BANK'S HISTORY AND OPERATIONS WHICH EMERGES FROM THE
TESTIMONY AND EXHIBITS IN THIS CASE, IT APPEARS THAT THE PRINCIPAL
REASON WAS THAT KEY MEMBERS OF ITS MANAGEMENT, THE MEN WHO HAD BEEN
RESPONSIBLE FOR THE BANKS'S PROGRESS IN THE LATE 1950'S, HAD ADVANCED
IN AGE AND EITHER RETIRED OR SLOWED THEIR ACTIVITIES.  THE BANK'S
OFFICIALS NONETHELESS MADE BUT SCANT EFFORTS TO RECRUIT AND ADVANCE
YOUNG TALENT.  NASHVILLE BANK PAID SUBSTANTIALLY LOWER SALARIES THAN
THE OTHER NASHVILLE BANKS, HAD NO FUNDED PENSION PLAN, AND CONDUCTED NO
SYSTEMATIC RECRUITING PROGRAM.  ON JANUARY 1, 1964, THE BANK'S BOARD OF
DIRECTORS HAD 13 MEMBERS, OF WHOM FOUR WERE 75 OR OVER, NINE WERE 65 OR
OLDER, AND 11 WERE 63 OR OLDER.  OF THE SIX DEPARTMENT HEADS FOUR WERE
65 OR OLDER AND THE OTHER TWO WERE 59.  THE AVERAGE AGE OF THE 15
OFFICERS WORKING OUTSIDE THE TRUST DEPARTMENT WERE OVER 60.  THE
DISTRICT COURT PAINTED IN SOMBER HUES THE BANKING POLICIES AND THE
ECONOMIC RESULTS WHICH SEEMED TO FLOW FROM THE FAILURE TO HIRE YOUNG
TALENT.  ESSENTIALLY, NASHVILLE BANK WAS NOT AGGRESSIVE OR EFFICIENT,
AND IT HAD STOPPED GROWING, SO THAT IT COULD NOT OPEN BRANCHES (IT HAD
ONLY ONE) OR EMBARK ON A CORRESPONDENT BANKING PROGRAM.  IT WAS
NEVERTHELESS AN INSTITUTION OF SUBSTANTIAL SIZE, WITH ASSETS OF
$50,900,000 AND DEPOSITS OF $45,500,000.  IT WAS PROFITABLE, AND IT
OFFERED SOMEWHAT DIFFERENT SERVICES, OCCASIONALLY AT SOMEWHAT LOWER
RATES, THAN ITS COMPETITORS. 

IN JANUARY 1964, THE INDIVIDUALS WHO HAD OWNED CONTROLLING SHARES OF
NASHVILLE BANK AND TRUST DECIDED TO SELL 10,845 SHARES, A CONTROLLING
INTEREST, TO A GROUP OF PROMINENT NASHVILLE CITIZENS HEADED BY WILLIAM
WEAVER.  THE PRICE WAS $350 PER SHARE.  IN FEBRUARY 1964, THE WEAVER
GROUP OPENED NEGOTIATIONS LOOKING TO A MERGER WITH COMMERCE UNION BANK,
NASHVILLE'S THIRD LARGEST.  THE NEGOTIATIONS WERE UNSUCCESSFUL,
HOWEVER, BECAUSE WEAVER DEMANDED $460 PER SHARE WHILE COMMERCE UNION
OFFERED ONLY $360.  WEAVER THEN NEGOTIATED THE SALE TO THIRD NATIONAL,
AT A PRICE OF ABOUT $420 PER SHARE.  THE MERGER WAS APPROVED BY THE
BOARDS OF DIRECTORS OF BOTH BANKS ON MARCH 12, 1964, AND, AFTER
APPROVAL BY THE COMPTROLLER OF THE CURRENCY, WAS CONSUMMATED ON AUGUST
18, 1964. 

        II. 

THE LEGISLATIVE HISTORY OF THE BANK MERGER ACT OF 1966 /7/  LEAVES
NO DOUBT THAT THE ACT WAS PASSED TO MAKE SUBSTANTIAL CHANGES IN THE LAW
APPLICABLE TO BANK MERGERS.  CONGRESS WAS EVIDENTLY DISSATISFIED WITH
THE 1960 BANK MERGER ACT AS THAT ACT WAS INTERPRETED IN UNITED STATES
V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321 (1963), AND IN UNITED
STATES V. FIRST NATIONAL BANK & TRUST CO., OF LEXINGTON, 376 U.S. 665
(1964), AND WISHED TO ALTER BOTH THE PROCEDURES BY WHICH THE JUSTICE
DEPARTMENT CHALLENGES BANK MERGERS AND THE LEGAL STANDARD WHICH COURTS
APPLY IN JUDGING THOSE MERGERS.  THE RESULTING STATUTE, HOWEVER, AS
SOME MEMBERS OF CONGRESS RECOGNIZED, /8/  WAS MORE CLEAR AND MORE
SPECIFIC IN PRESCRIBING NEW PROCEDURES FOR TESTING MERGERS THAN IN
EXPOUNDING THE NEW STANDARD BY WHICH THEY SHOULD BE JUDGED. 

LAST TERM, IN UNITED STATES V. FIRST CITY NATIONAL BANK OF HOUSTON,
386 U.S. 361 (1967), THIS COURT INTERPRETED THE PROCEDURAL PROVISIONS
OF THE 1966 ACT, HOLDING THAT THE BANK MERGER ACT PROVIDED FOR
CONTINUED SCRUTINY OF BANK MERGERS UNDER THE SHERMAN ACT AND THE
CLAYTON ACT, BUT HAD CREATED A NEW DEFENSE, WITH THE MERGING BANKS
HAVING THE BURDEN OF PROVING THAT DEFENSE.  THE TASK OF THE DISTRICT
COURTS WAS TO INQUIRE DE NOVO INTO THE VALIDITY OF A BANK MERGER
APPROVED BY THE RELEVANT BANK REGULATORY AGENCY TO DETERMINE, FIRST,
WHETHER THE MERGER OFFENDED THE ANTITRUST LAWS AND, SECOND, IF IT DID,
WHETHER THE BANKS HAD ESTABLISHED THAT THE MERGER WAS NONETHELESS
JUSTIFIED BY "THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE
SERVED."  HOUSTON BANK RESERVED "ALL QUESTIONS" CONCERNING THE
SUBSTANTIVE MEANING OF THE "CONVENIENCE AND NEEDS" DEFENSE.  SEE 386
U.S.,AT 369, N.1. 

        III. 

THE PROCEEDINGS THAT HAVE OCCURRED UNTIL NOW REGARDING VALIDITY OF
THE MERGER HERE BEFORE US HAVE BEEN SCRAMBLED AND CONFUSED, LARGELY
BECAUSE THE RELEVANT STATUTE, THE 1966 BANK MERGER ACT, BECAME LAW JUST
PRIOR TO THE TRIAL AND DID NOT RECEIVE ITS FIRST INTERPRETATION BY THIS
COURT, IN HOUSTON BANK, UNTIL THE DECISION BELOW HAD BEEN RENDERED. 

THE TWO BANKS AGREE TO MERGE ON MARCH 12, 1964.  ON APRIL 27, 1964,
THEY APPLIED TO THE COMPTROLLER OF THE CURRENCY FOR APPROVAL, AS THE
1960 BANK MERGER ACT REQUIRED.  PURSUANT TO THAT ACT, THE FEDERAL
RESERVE BOARD, THE FEDERAL DEPOSIT INSURANCE CORPORATION, AND THE
DEPARTMENT OF JUSTICE REPORTED TO THE COMPTROLLER OF THE CURRENCY ON
"THE COMPETITIVE FACTORS INVOLVED."  THE FEDERAL RESERVE BOARD REPORTED
THAT THE MERGER "WOULD HAVE CLEARLY ADVERSE EFFECTS ON COMPETITION" BY
"ELIMINATING) DIRECT COMPETITION WHICH EXISTS BETWEEN PARTICIPANTS AND
. . . INCREASING) SIGNIFICANTLY . . . ALREADY HEAVY CONCENTRATION.  . .
."  THE FEDERAL DEPOSIT INSURANCE CORPORATION REPORTED THAT "THE EFFECT
OF THE PROPOSED MERGER ON COMPETITION WOULD BE UNFAVORABLE."  THE
DEPARTMENT OF JUSTICE REPORTED THAT THE MERGER "WOULD HAVE SEVERE
ANTICOMPETITIVE EFFECTS UPON BANKING COMPETITION IN METROPOLITAN
NASHVILLE."  THE COMPTROLLER OF THE CURRENCY, HOWEVER, CONCLUDED THAT
THE MERGER WOULD NOT LESSEN COMPETITION AND WOULD "IMPROVE THE CHARTER
BANK'S ABILITY TO SERVE THE CONVENIENCE AND NEEDS OF THE NASHVILLE
PUBLIC."  ON AUGUST 4, 1964, HE APPROVED THE MERGER. 

ON AUGUST 10, 1964, THE UNITED STATES, AS THIS COURT'S DECISION IN
PHILADELPHIA BANK AUTHORIZED, SUED IN FEDERAL DISTRICT COURT CHARGING
THAT THE PROPOSED MERGER WAS IN VIOLATION OF SEC. 7 OF THE CLAYTON ACT
/9/  AND SEC; 1 OF THE SHERMAN ACT.  /10/  ON AUGUST 18, 1964, THE
DISTRICT COURT REFUSED THE GOVERNMENT'S REQUEST FOR A PRELIMINARY
INJUNCTION STAYING CONSUMMATION, AND ON THAT DAY THE TWO BANKS MERGED. 

THE ANTITRUST SUIT AGAINST THE MERGER HAD NOT COME TO TRIAL WHEN, ON
FEBRUARY 21, 1966, THE BANK MERGER ACT OF 1966 TOOK EFFECT.  CONGRESS
HAD DEVOTED MUCH ATTENTION TO THE IMPACT OF THAT ACT ON BANK MERGERS
STILL IN THE PROCESS OF LITIGATION.  IN SEC. 2 OF THE ACT, 80 STAT. 10,
CONGRESS EXCLUDED FROM ALL ANTITRUST LIABILITY /11/  MERGERS WHICH HAD
BEEN CONSUMMATED BEFORE JUNE 17, 1963, THE DATE OF THIS COURT'S
PHILADELPHIA BANK DECISION, AND THOSE CONSUMMATED BETWEEN JUNE 17,
1963, AND FEBRUARY 21, 1966, AS TO WHICH THE ATTORNEY GENERAL HAD NOT
BEGUN LITIGATION ON FEBRUARY 21, 1966.  HOWEVER, ALTHOUGH CONGRESS
CONSIDERED AMENDMENTS WHICH WOULD HAVE PROVIDED ANTITRUST IMMUNITY ALSO
FOR THOSE BANK MERGERS /12/  CONSUMMATED AFTER JUNE 17, 1963, AND
ALREADY THE SUBJECT OF LITIGATION, A DECISION WAS MADE TO LEAVE THOSE
MERGERS SUBJECT TO LIABILITY, APPARENTLY /13/  BECAUSE THE MERGING
PARTIES HAD KNOWN, FROM PHILADELPHIA BANK THAT THEIR CONSUMMATION WAS
WITH THE RISK OF AN EVENTUAL ORDER TO DISSOLVE.  CONGRESS DID PROVIDE,
IN SEC. 2(C) OF THE ACT, THAT COURTS HEARING SUCH CASES "SHALL APPLY
THE SUBSTANTIVE RULE OF LAW SET FORTH" IN THE ACT. 

SINCE THE TRIAL HAD BEEN HELD AFTER THE 1966 ACT TOOK EFFECT, AND
SINCE THE COMPTROLLER OF THE CURRENCY AND OTHER WITNESSES, DIRECTED BY
COUNSEL, HAD ADDRESSED THEMSELVES TO THE STATUTORY LANGUAGE CONTAINED
IN THAT ACT, THE DISTRICT COURT SAW NO NEED TO REMAND TO THE
COMPTROLLER FOR A NEW OPINION IN LIGHT OF THE ACT, AS WAS ORDERED IN
UNITED STATES V. CROCKER-ANGLO NATIONAL BANK, 263 F.SUPP.  125
(D.C.N.D. CAL. 1966).  PROCEEDING TO DECIDE THE CASE, THE DISTRICT
JUDGE HELD THAT UNDER THE NEW ACT, VIOLATION OF ANTITRUST STANDARDS WAS
"PRIMARILY A LEGAL ISSUE . . . (ON WHICH COURTS SHOULD MAKE) AN
INDEPENDENT DETERMINATION," WHILE "CONVENIENCE AND NEEDS OF THE
COMMUNITY IS, IN THE LANGUAGE OF THE CROCKER-ANGLO OPINION, 'PLAINLY
AND UNQUESTIONABLY A LEGISLATIVE OR ADMINISTRATIVE DETERMINATION'  . .
. (ON WHICH) THE COMPTROLLER'S FINDINGS SHOULD NOT BE DISTRUBED UNLESS
THEY ARE UNSUPPORTED BY SUBSTANTIAL EVIDENCE."  /14/  THE COURT
CONCLUDED THAT THE MERGER DID NOT OFFEND ANTITRUST STANDARDS AND THAT
THE COMPTROLLER'S CONCLUSION THAT IT WOULD BENEFIT THE COMMUNITY WAS
SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE RELIEF SOUGHT BY THE JUSTICE
DEPARTMENT WAS DENIED. 

        IV. 

THE DISTRICT COURT ASSERTED THAT ONE EFFECT OF THE BANK MERGER ACT
OF 1966 WAS TO ALTER THE STANDARDS USED IN DETERMINING WHETHER A MERGER
IS IN VIOLATION OF SEC. 7 OF THE CLAYTON ACT AND SEC. 1 OF THE SHERMAN
ACT.  ESSENTIALLY, THE DISTRICT COURT MANDATED A RETURN TO UNITED
STATES V. COLUMBIA STEEL CO., 334 U.S. 495 (1948), WHICH THIS COURT HAS
HELD TO BE "CONFINED TO ITS SPECIAL FACTS."  LEXINGTON BANK, 376
U.S.,AT 672.  IN LATER CASES, ESPECIALLY PHILADELPHIA BANK, SUPRA;
LEXINGTON BANK, SUPRA; UNITED STATES V. ALUMINUM CO. OF AMERICA, 377
U.S. 271 (1964); AND UNITED STATES V. CONTINENTAL CAN CO., 378 U.S. 441
(1964), THIS COURT HAS REJECTED THE COLUMBIA STEEL APPROACH TO
DETERMINING WHETHER A MERGER WILL TEND "SUBSTANTIALLY TO LESSEN
COMPETITION."  WE FIND IN THE 1966 ACT, WHICH ADOPTED PRECISELY THAT
SEC. 7 CLAYTON ACT PHRASE, AS WELL AS THE "RESTRAINT OF TRADE" LANGUAGE
OF SHERMAN ACT SEC. 1, NO INTENTION TO ADOPT AN "ANTITRUST STANDARD"
FOR BANK CASES DIFFERENT FROM THAT USED GENERALLY IN THE LAW.  /15/
ONLY ONE CONCLUSION CAN BE DRAWN FROM THE EXHAUSTIVE LEGISLATIVE
DELIBERATIONS THAT PRECEDED PASSAGE OF THE ACT:  CONGRESS INTENDED BANK
MERGERS FIRST TO BE SUBJECT TO THE USUAL ANTITRUST ANALYSIS; IF A
MERGER FAILED THAT SCRUTINY, IT WAS TO BE PERMISSIBLE ONLY IF THE
MERGING BANKS COULD ESTABLISH THAT THE MERGER'S BENEFITS TO THE
COMMUNITY WOULD OUTWEIGH ITS ANTICOMPETITIVE DISADVANTAGES.  SEE
HOUSTON BANK, SUPRA.  CONGRESSMAN MINISH SPOKE IN TUNE WITH THE
LANGUAGE OF THE ACT AND THE STATEMENTS OF HIS COLLEAGUES WHEN HE SAID: 

     "IT SHOULD ALSO BE CLEAR FROM THE LANGUAGE OF PARAGRAPH (5)(B)

  OF THIS BILL, WHICH ESTABLISHES THIS SINGLE STANDARD, THAT THE

 COMPETITIVE FACTOR TO BE USED IS DRAWN DIRECTLY FROM CLAYTON ACT

  SECTION 7 AND SHERMAN ACT SECTION 1.  THUS, ALL OF THE PRINCIPLES

  DEVELOPED OVER THE LAST 75 YEARS IN REGARD TO THESE STATUTES,

  SUCH AS THE DEFINITION OF RELEVANT MARKET AND THE FAILING COMPANY

  DOCTRINE ARE CARRIED FORWARD UNCHANGED BY THIS PROPOSED

  LEGISLATION."  /16/ 

WE THEREFORE HOLD THAT THE DISTRICT COURT EMPLOYED AN ERRONEOUS
STANDARD IN APPLYING SEC. 7 OF THE CLAYTON ACT TO THE MERGER.  IN
ADDITION WE HOLD THAT, APPRAISED BY THE TEST ENUNCIATED IN RECENT
CLAYTON ACT CASES, THE TENDENCY OF THE MERGER SUBSTANTIALLY TO LESSEN
COMPETITION IS APPARENT; NASHVILLE HAD THREE LARGE BANKS AND ONE OF
MIDDLE SIZE.  IN THIS MERGER THE BANK OF MIDDLE SIZE WAS ABSORBED BY
THE SECOND LARGEST OF THE BIG BANKS.  BY THE MERGER THE MARKET SHARE OF
THE THREE LARGEST BANKS ROSE FROM 93% TO 98%; THE MERGED BANK ALONE HAD
ALMOST 40% OF THE NASHVILLE BANKING BUSINESS.  IN ADDITION, THE RECORD
IS REPLETE WITH EVIDENCE THAT NASHVILLE BANK AND TRUST WAS IN FACT AN
IMPORTANT COMPETITIVE ELEMENT IN CERTAIN, THOUGH NOT IN ALL, FACETS OF
NASHVILLE BANKING; IT OFFERED SOMEWHAT DIFFERENT SERVICES, AT SOMEWHAT
DIFFERENT RATES, FROM THOSE OFFERED BY OTHER BANKS, AND SOME CUSTOMERS
FOUND THOSE SERVICES DESIRABLE.  ALTHOUGH NASHVILLE BANK FAILED TO
INCREASE ITS PERCENTAGE SHARE OF THE NASHVILLE BANKING MARKET AFTER
1960, THE ABSOLUTE SIZE OF ITS BUSINESS INCREASED STEADILY FROM 1956,
WHEN IT ENTERED SERIOUSLY INTO THE COMMERCIAL BANKING MARKET, TO THE
DATE OF THE MERGER.  THROUGHOUT THIS PERIOD IT WAS PROFITABLE.  THE
RECORD PERMITS NO CONCLUSION THAT NASHVILLE BANK WAS IN ANY WAY A
"FAILING" COMPANY.  SEE INTERNATIONAL SHOE CO. V. FTC, 280 U.S. 291
(1930).  ON THESE FACTS, THE CONCLUSION IS INESCAPABLE THAT THE MERGER
OF THIRD NATIONAL BANK IN NASHVILLE WITH NASHVILLE BANK AND TRUST CO.
TENDED TO LESSEN COMPETITION IN THE NASHVILLE COMMERCIAL BANKING
MARKET.  PHILADELPHIA BANK, SUPRA.

        V. 

BECAUSE THE DISTRICT COURT ERRONEOUSLY CONCLUDED THT THE MERGER
WOULD NOT TEND TO LESSEN COMPETITION, ITS CONCLUSION UPON WEIGHING THE
COMPETITIVE EFFECT AGAINST THE ASSERTED BENEFITS TO THE COMMUNITY IS
SUSPECT.  TO WEIGH ADEQUATELY ONE OF THESE FACTORS AGAINST THE OTHER
REQUIRES A PROPER CONCLUSION AS TO EACH.  HAVING DECIDED THAT THE COURT
BELOW ERRED IN ASSESSING COMPETITIVE IMPACT, WE SHOULD REMAND, SO THAT
THE DISTRICT COURT CAN PERFORM AGAIN THE BALANCING PROCESS MANDATED BY
THE ACT.  /17/ 

THERE IS, HOWEVER, AN ADDITIONAL REASON TO REMAND.  IN OUR VIEW, THE
DISTRICT COURT MISAPPREHENDED THE MEANING OF THE PHRASE "CONVENIENCE
AND NEEDS OF THE COMMUNITY"; IT MISUNDERSTOOD THE WEIGHT TO BE GIVEN
THE RELEVANT FACTORS WHEN SEEKING TO DETERMINE WHETHER THE
ANTICOMPETITIVE EFFECTS OF A MERGER ARE "CLEARLY OUTWEIGHED IN THE
PUBLIC INTEREST BY THE PROBABLE EFFECT OF THE TRANSACTION IN MEETING
THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE SERVED." 

THE PURPOSE OF THE BANK MERGER ACT WAS TO PERMIT CERTAIN BANK
MERGERS EVEN THOUGH THEY TENDED TO LESSEN COMPETITION IN THE RELEVANT
MARKET.  CONGRESS FELT THAT THE ROLE OF BANKS IN A COMMUNITY'S ECONOMIC
LIFE WAS SUCH THAT THE PBULIC INTEREST WOULD SOMETIMES BE SERVED BY A
BANK MERGER EVEN THOUGH THE MERGER LESSENED COMPETITION.  THE PUBLIC
INTEREST WAS THE ULTIMATE TEST IMPOSED.  THIS IS CLEAR NOT ONLY FROM
THE LNAGUAGE OF THE ACT BUT FROM THE STATEMENTS OF THOSE WHO SUPPORTED
IT WHILE THE ACT WAS UNDER CONSIDERATION: 

     "MR. ASHLEY.  . . . IN OTHER WORDS, THE MERGER MUST BE SHOWN
TO

  BE SUFFICIENTLY BENEFICIAL IN MEETING THE CONVENIENCE AND NEEDS

  OF THE COMMUNITY TO BE SERVED THAT, ON BALANCE, IT MAY PROPERLY

  BE REGARDED AS IN THE PUBLIC INTEREST. 

        .          .          .          . 

     MR. MULTER.  . . . I BELIEVE IT WAS THE INTENTION OF THE

  CONGRESS ORIGINALLY IN 1960 WHEN WE ENACTED THE BANK MERGER ACT

 THAT THE PUBLIC INTEREST SHOULD BE PARAMOUNT IN MAKING ANY

  DETERMINATION WITH REFERENCE TO A MERGER.  THE WORDS 'IN THE

  PUBLIC INTEREST' ARE AGAIN WRITTEN INTO THIS BILL NOW AND WILL

  REMAIN IN THE LAW SO THAT THERE WILL BE NO QUESTION BUT THAT THE

  COURTS AND THE AGENCIES MUST TAKE THE PUBLIC INTEREST INTO

  ACCOUNT. 

        .   .          .          . 

     "MR. ASHLEY.  IS THE GENTLEMAN SAYING, AS I BELIEVE HE IS,
THAT

  IT IS THE CONSENSUS OF THE COMMITTEE, IN DRAFTING THIS BILL, THAT

  THE PUBLIC INTEREST IS TO BE CONSIDERED AS COMBINING THE

  CONSIDERATION BOTH OF THE ANTICOMPETITIVE FACTORS OF A PARTICULAR

MERGER ON THE ONE HAND, AND, ON THE OTHER, THE NEEDS AND

 CONVENIENCE OF THE COMMUNITY THAT MAY DERIVE FROM THAT MERGER,

  WHICH, AS I SAY, MAY RESULT IN A DIMINUTION OF COMPETITION; IN

  OTHER WORDS, THAT THE PUBLIC INTEREST HAS GOT TO INVOLVE A

  CONSIDERATION OF BOTH OF THESE RATHER CONSIDERABLE FACTORS? 

     "MR. STEPHENS.  THAT IS CORRECT.  . . . "  112 CONG.REC. 
2446, 2449, 2450. 

IT IS PLAIN THAT CONGRESS CONSIDERED BOTH COMPETITION IN COMMERCIAL
BANKING AND SATISFACTION OF "THE CONVENIENCE AND NEEDS OF THE
COMMUNITY" TO BE IN THE PUBLIC INTEREST.  IT CONCLUDED THAT A MERGER
SHOULD BE JUDGED IN TERMS OF ITS OVERALL EFFECT UPON THE PUBLIC
INTEREST.  IF A MERGER POSED A CHOICE BETWEEN PRESERVING COMPETITION
AND SATISFYING THE REQUIREMENTS OF CONVENIENCE AND NEED, THE INJURY AND
BENEFIT WERE TO BE WEIGHED AND DECISION WAS TO REST ON WHICH
ALTERNATIVE BETTER SERVED THE PUBLIC INTEREST; 

THE NECESSITY OF CHOOSING IS MOST CLEARLY POSED WHERE THE PROPOSED
MERGER WOULD CREATE AN INSTITUTION WITH CAPABILITIES FOR SERVING THE
PUBLIC INTEREST NOT POSSESSED BY EITHER OF THE TWO MERGING INSTITUTIONS
ALONE AND WHERE THE POTENTIAL COULD BE REALIZED ONLY THROUGH MERGER. 
THUS, IT MIGHT BE CLAIMED, AS IT IS IN THIS CASE, THAT A COMBINED BANK
WOULD HAVE A GREATER LENDING CAPACITY AND HENCE BE BETTER EQUIPPED TO
SERVE THE FINANCIAL NEEDS OF THE COMMUNITY.  IN PHILADELPHIA BANK, 374
U.S.,AT 370-371, THIS COURT, ACTING UNDER THE 1960 BANK MERGER ACT,
REJECTED THE RELEVANCE OF THE COMBINED BANK'S ABILITY TO SERVE
PHILADELPHIA BY MAKING LARGE LOANS THAT COULD OTHERWISE ONLY BE
OBTAINED IN NEW YORK.  THE COURT FOUND NO STATUTORY AUTHORIZATION FOR
CONSIDERING SUCH A BENEFIT IN APPRAISING THE LEGALITY OF A MERGER. 
EXPRESSIONS IN CONGRESS DURING CONSIDERATION OF THE 1966 ACT SUGGEST
THAT ONE PURPOSE OF THAT ACT WAS TO GIVE THIS FACTOR, NOT PREVIOUSLY
RELEVANT IN APPRAISING BANK MERGERS, SUITABLE WEIGHT IN JUDGING THEIR
VALIDITY.  /18/  IN THE CASE BEFORE US THE DISTRICT COURT'S FINDINGS OF
FACT SUGGEST THAT THE NEW BANK, WITH A 20% GREATER LENDING LIMIT THAN
THIRD NATIONAL BANK PREVIOUSLY HAD, WAS ABLE TO MAKE LARGER LOANS, FOR
WHICH NASHVILLE AREA COMPANIES HAD PREVIOUSLY TO GO TO CHICAGO OR NEW
YORK.  THE DISTRICT COURT ALSO STATED THAT BECAUSE THIRD NATIONAL BANK
OPERATED WITH A HIGHER LOANS-TO-DEPOSITS RATIO THAN NASHVILLE BANK AND
TRUST, COMBINING THEIR DEPOSITS AND APPLYING THE THIRD NATIONAL BANK
RATIO TO THE TOTAL INCREASED AVAILABLE LENDING CAPACITY IN NASHVILLE BY
ABOUT $2,800,000.  BUT THE DISTRICT COURT WAS NOT SPECIFIC IN
DESCRIBING THE BENEFICIAL CONSEQUENCES OF SUCH RESULTS FOR THE
NASHVILLE COMMUNITY, OR IN DEFINING THE VALUE OF THESE ADDITIONS,
ESPECIALLY AS COMPARED WITH THE OTHER, AND LESS DESIRABLE, RESULTS OF
THE MERGER.  ABSENT SUCH FINDINGS, THE INCREASED LENDING CAPACITY OF
THE NEW BANK WEIGHS VERY LITTLE IN THE BALANCE. 

CONGRESS WAS ALSO CONCERNED ABOUT BANKS IN DANGER OF COLLAPSE--
BANKS NOT SO DEEPLY IN TROUBLE AS TO CALL FORTH THE TRADITIONAL
"FAILING COMPANY" DEFENSE, BUT NONETHELESS IN DANGER OF BECOMING BEFORE
LONG FINANCIALLY UNSOUND INSTITUTIONS.  /19/  CONGRESS SEEMS TO HAVE
FELT THAT A BANK FAILURE IS A MUCH GREATER COMMUNITY CATASTROPHE THAN
THE FAILURE OF AN INDUSTRIAL OR RETAIL ENTERPRISE, AND THAT A MUCH
SMALLER RISK OF FAILURE THAN THAT REQUIRED BY THE FAILING COMPANY
DOCTRINE SHOULD BE SUFFICIENT TO JUSTIFY THE RATHER RADICAL PREVENTIVE
STEP OF AN ANTICOMPETITIVE MERGER.  THE FINDINGS OF FACT OF THE
DISTRICT COURT INCLUDED THE INFORMATION THAT NASHVILLE BANK AND TRUST
COMPANY HAD A HIGHER THAN USUAL PERCENTAGE OF UNSOUND LOANS, THE RESULT
OF UNSATISFACTORY PROCEDURES FOR INVESTIGATING AND JUDGING CREDIT
RISKS, AND THAT ITS "RATING" HAD BEEN CHANGED IN 1962 FROM
"SATISFACTORY" TO "FAIR."  THE DISTRICT COURT DREW NO CONCLUSION ABOUT
THE EXTENT OF THE DANGER THESE CONDITIONS POSED FOR NASHVILLE BANK AND
TRUST'S FUTURE, ABOUT THE FEASIBILITY OF CRATIVE MEASURES SHORT OF
MERGER, OR ABOUT BHETHER OTHER HEALTHY ASPECTS OF THE BANK'S CONDITION-
FOR INSTANCE ITS STEADY PROFITABILITY, INCLUDING AFTER-TAX EARNINGS OF
$368,000 IN 1963 /20/  -- REMOVED ANY DANGER OF FAILURE IN THE
FORESEEABLE FUTURE; ABSENT FINDINGS AND CONCLUSIONS OF THIS NATURE,
/21/  THE DISTRICT COURT SEEMED TO BE HOLDING THAT THE MERGER SHOULD BE
APPROVED SIMPLY BECAUSE NASHVILLE BANK AND TRUST COMPANY COULD BE A
BETTER BANK AND COULD RENDER BETTER BANKING SERVICES. 

THE DISTRICT COURT, IT APPEARS, CONSIDERED THE MERGER BENEFICIAL TO
THE COMMUNITY BECAUSE NASHVILLE BANK AND TRUST HAD ONLY ONE BRANCH,
BECAUSE IT HAD NO PROGRAM OF CORRESPONDENT BANKING, BECAUSE ITS
OPERATIONS WERE NOT COMPUTERIZED, BECAUSE IT EMPHASIZED REAL ESTATE
LOANS RATHER THAN COMMERCIAL LOANS, BECAUSE ITS MANAGEMENT WAS OLD AND
UNABLE TO RENDER SOUND BUSINESS ADVICE TO BORROWERS, BECAUSE IT WAS NOT
RECRUITING NEW TALENT, AND BECAUSE ITS SALARY SCALE WAS LOW.  HENCE A
MERGER WAS JUSTIFIED BECAUSE IT WOULD SOLVE THESE PROBLEMS AND PRODUCE
AN INSTITUTION WHICH, IN THE WORDS OF THE HOUSE REPORT, WOULD BE
CAPABLE OF 

"FURNISHING BETTER OVERALL SERVICE TO THE COMMUNITY, EVEN THOUGH THE
REDUCTION IN THE NUMBER OF COMPETING UNITS, OR THE CONCENTRATION IN THE
SHARE OF THE MARKET IN ONE OR MORE LINES OF COMMERCE, MIGHT RESULT
UNDER GENERAL ANTITRUST LAW CRITERIA IN A SUBSTANTIAL LESSENING OF
COMPETITION."  H.R. REP. NO. 1221, 89TH CONG., 2D SESS., 3. 

UNDENIABLY, NASHVILLE BANK AND TRUST HAD SIGNIFICANT PROBLEMS OF THE
KIND OUTLINED IN THE FINDINGS OF THE DISTRICT COURT, PROBLEMS WHICH
WERE PRIMARILY ROOTED IN UNSATISFACTORY AND BACKWARD MANAGEMENT.  JUST
AS SURELY, SECURING BETTER BANKING SERVICE FOR THE COMMUNITY IS A
PROPER ELEMENT FOR CONSIDERATION IN WEIGHING CONVENIENCE AND NEED
AGAINST THE LOSS OF COMPETITION.  NOR IS THERE ANY DOUBT ON THIS RECORD
THAT MERGER WITH THIRD NATIONAL WOULD VERY PROBABLY END THE MANAGERIAL
PROBEMS OF NASHVILLE BANK AND TRUST AND SECURE THE BETTER USE OF ITS
ASSETS IN THE PUBLIC INTEREST.  THUS IF THE GAINS IN BETTER SERVICE
OUTWEIGHED THE ANTICOMPETITIVE DETRIMENT AND THE MERGER WAS ESSENTIAL
TO SECURE THIS NET GAIN TO THE PUBLIC INTEREST, THE MERGER SHOULD BE
APPROVED. 

BUT THIS ANALYSIS PUTS ASIDE POSSIBLE WAYS OF SATISFYING THE
REQUIREMENT OF CONVENIENCE AND NEED WITHOUT RESORT TO MERGER.  IF THE
INJURY TO THE PUBLIC INTEREST FLOWING FROM THE LOSS OF COMPETITION
COULD BE AVOIDED AND THE CONVENIENCE AND NEEDS OF THE COMMUNITY BE
EFITED IN WAYS SHORT OF MERGER BUT WITHIN THE COMPETENCE OF REASONABLY
ABLE BUSINESSMEN, THE SITUATION IS RADICALLY DIFFERENT.  IN SUCH
CIRCUMSTANCES, WE SERIOUSLY DOUBT THAT CONGRESS INTENDED A MERGER TO BE
AUTHORIZED BY EITHER THE BANKING AGENCIES OR THE COURTS.  IF, FOR
EXAMPLE, JUST PRIOR TO THIS MERGER, AN EXPERIENCED BANKER WITH
COMPETENT ASSOCIATES HAD OFFERED TO TAKE OVER THE ACTIVE MANAGEMENT OF
THE BANK OR ANOTHER COMPETENT BUSINESSMAN WITH A WILLINGNESS TO TACKLE
THE MANAGEMENT PROBLEMS OF THE BANK HAD OFFERED TO BUY OUT THE WEAVER
INTERESTS AT AN ACCEPTABLE PRICE, IT SEEMS OBVIOUS THAT THE WEAVER
GROUP, WHICH SEEKS TO JUSTIFY THE MERGER IN TERMS OF PRODUCING AN
INSTITUTION RENDERING BETTER BANKING SERVICE, SHOULD NOT BE PERMITTED
TO MERGE AND TO IGNORE AN AVAILABLE ALTERNATIVE.  OTHERWISE, THE
BENEFITS OF COMPETITION, ACKNOWLEDGED BY CONGRESS, WOULD BE SACRIFICED
NEEDLESSLY.  FOR THE SAME REASONS, WE THINK IT WAS INCUMBENT UPON THOSE
SEEKING TO MERGE IN THIS CASE TO DEMONSTRATE THAT THEY MADE REASONABLE
EFFORTS TO SOLVE THE MANAGEMENT DILEMMA OF NASHVILLE BANK SHORT OF
MERGER WITH A MAJOR COMPETITOR BUT FAILED IN THESE ATTEMPTS, OR THAT
NAY SUCH EFFORST WOULD HAVE BEEN UNLIKELY TO SUCCEED. 

THIS SEEMS TO US THE MOST RATIONAL READING OF THE ACT, WHICH WAS A
COMPROMISE AND SATISFIED NONE OF THE PROTAGONISTS IN THIS EXTENDED
CONTROVERSY.  THE ACT DIRECTS THE AGENCIES AND THE COURTS TO CONSIDER
MANAGERIAL AS WELL AS FINANCIAL RESOURCES IN WEIGHING A PROPOSED
MERGER.  HOWEVER, THE ACT REQUIRES AS WELL THAT THE "FUTURE PROSPECTS
OF THE EXISTING AND PROPOSED INSTITUTIONS" BE APPRAISED.  PART OF SUCH
APPRAISAL, WHERE MANAGERIAL DEFICIENCIES EXIST AS THEY DO IN THIS CASE,
IS DETERMINING WHETHER THE MERGING BANK IS CAPABLE OF OBTAINING ITS OWN
IMPORVED MANAGEMENT.  THIS TEST DOES NOT DEMAND THE IMPOSSIBLE OR THE
UNREASONABLE.  IT MERELY INSISTS THAT BEFORE A MERGER INJURIOUS TO THE
PUBLIC INTEREST IS APPROVED, A SHOWING BE MADE THAT THE GAIN EXPECTED
FROM THE MERGER CANNOT REASONABLY BE EXPECTED THROUGH OTHER MEANS. 
THE QUESTION WE THEREFORE FACE IS WHETHER THE FINDINGS OF THE DISTRICT
COURT SUFFICIENTLY OR RELIABLY ESTABLISH THE UNAVAILABILITY OF
ALTERNATIVE SOLUTIONS TO THE WOES OF NASHVILLE BANK AND TRUST COMPANY. 
IN OUR VIEW, THEY DO NOT.  THE DISTRICT COURT DESCRIBED THE NATURE AND
EXTENT OF THE BANK'S MANAGERIAL SHORTCOMINGS.  IT NOTED THAT THE WEAVER
GROUP HAD DISCUSSED THESE MATTERS EXTENSIVELY WITH A NUMBER OF PERSONS,
INCLUDING BANKERS, AND HAD LEARNED THAT RECRUITING NEW MANAGEMENT WOULD
BE "EXTREMELY DIFFICULT" AT THE SALARIES PAID BY NASHVILLE BANK.  AND
IT CONCLUDED THAT MANAGEMENT PROCUREMENT WAS DIFFICULT FOR BANKS IN
GENERAL AND AN "ALMOST INSOLUBLE" PROBLEM FOR NASHVILLE BANK AND
TRUST. 

JUST HOW INSOLUBLE WAS NOT MADE CLEAR.  THE DISTRICT COURT DID NOT
ASK WHETHER THE WEAVER GROUP HAD MADE CONCRETE EFFORTS TO RECRUIT NEW
MANAGEMENT, ESPECIALLY A CHIEF EXECUTIVE OFFICER, WHO WAS NEEDED MOST. 
THE RECORD SEEMS CLEAR THAT THEY MADE NO PROPOSALS TO ANY INDIVIDUAL
PROSPECTS IN OR OUTSIDE OF NASHVILLE, SAVE ONE RATHER CASUAL LETTER TO
A BANKING ACQUAINTANCE IN NEW YORK, AND THAT THEY NEITHER SOUGHT NOR
CARED TO SEEK THE HELP OF FIRMS SPECIALIZING IN FINDING OR FURNISHING
NEW MANAGEMENT.  /22/  THE COURT MADE NO REFERENCE TO THE POSSIBILITY
THAT THE NEW OWNERS THEMSELVES MIGHT HAVE TAKEN ACTIVE CHARGE OF THE
BANK.  NONE OF THEM WAS A BANKER, BUT THEIR SUCCESSFUL PREDECESSOR
HACKWORTH HAD NOT BEEN ONE BEFORE BECOMING PRESIDENT OF NASHVILLE
BANK.  /23/  NOR DID THE COURT ASSESS THE POSSIBILITY OF A SALE TO
OTHERS WHO MIGHT HAVE BEEN WILLING TO FACE UP TO THE MANAGEMENT
DIFFICULTIES OVER A MORE EXTENDED PERIOD.  WE FIND NOTHING IN THE
FINDINGS INDICATING THAT A BANK WITH ASSETS OF $50,000,000 WAS SIMPLY
TOO SMALL TO ATTRACT COMPETENT MANAGEMENT /24/  OR THAT THE WEAVER
GROUP, THE NEW OWNERS, WERE INTRANSIGENTLY INSISTING ON UNREASONABLY
CONSERVATIVE MANAGERIAL POLICIES.  INDEED, THE WEAVER GROUP INCLUDED
COMPETENT AND EXPERIENCED MEN WHO REALIZED THE DESIRABILITY OF
IMPROVING AN UNSATISFACTORY SITUATION.  RATHER THAN MAKING SERIOUS
EFFORTS TO DO SO THEMSELVES OR TO SELL TO OTHERS WHO WOULD, THEY
PREFERRED TO MERGE WITH A COMPETING BANK-- A STEP WHICH PRODUCED A
PROFIT OF $750,000 ON A TWO-MONTH INVESTMENT OF $3,800,000. 

THE BURDEN OF SHOWING THAT AN ANTICOMPETITIVE BANK MERGER WOULD BE
IN THE PUBLIC INTEREST BECAUSE OF THE BENEFITS IT WOULD BRING TO THE
CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE SERVED RESTS ON THE
MERGING BANKS.  HOUSTON BANK, SUPRA.  A SHOWING THAT ONE BANK NEEDED
MORE LIVELY AND EFFICIENT MANAGEMENT, ABSENT A SHOWING THAT THE
ALTERNATIVE MEANS FOR SECURING SUCH MANAGEMENT WITHOUT A MERGER WOULD
PRESENT UNUSUALLY SEVERE DIFFICULTIES, CANNOT BE CONSIDERED TO SATISFY
THAT BURDEN; 

WE THEREFORE CONCLUDE THAT THE DISTRICT COURT WAS IN ERROR IN
HOLDING THAT THE FACTORS IT CITED AS WAYS IN WHICH THIS MERGER
BENEFITED THE NASHVILLE COMMUNITY WERE SUFFICIENT TO OUTWEIGH THE
ANTICOMPETITIVE EFFECTS OF THE MERGER.  THE CASE MUST BE REMANDED SO
THAT THE DISTRICT COURT CAN CONSIDER AGAIN THE APPLICATION OF THE BANK
MERGER ACT TO THE FACTS OF THIS MERGER.  BECAUSE THE DISTRICT COURT
HEARD THIS CASE BEFORE HOUSTON BANK WAS DECIDED, IT MAY WISH TO
CONSIDER REOPENING THE RECORD, SO THAT THE PARTIES WILL HAVE AN
OPPORTUNITY TO PRESENT NEW EVIDENCE IN LIGHT OF THE INTERVENING
INTERPRETATIONS OF THE ACT.  THE JUDGMENT BELOW IS REVERSED AND THE
CASE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

              IT IS SO ORDERED. 

/1/  THE OPOINION OF THE DISTRICT COURT IS REPORTED AT 260 F.SUPP. 
869 (D.C.M.D. TENN. 1966).  ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW
ARE UNREPORTED.  PROBABLE JURISDICTION WAS NOTED AT 388 U.S. 905
(1967). 

/2/  UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 326
(1963). 

/3/  WE CITE PERCENTAGES OF TOTAL ASSETS FOR CONVENIENCE, NOT
BECAUSE THEY ARE ALONE A VALID INDICATION OF A BANK'S MARKET SHARE. 
THE PERCENTAGES OF TOTAL DEPOSITS AND OF TOTAL LOANS HELD BY THE EIGHT
DAVIDSON COUNTY BANKS VARIED SIGNIFICANTLY FROM THE PERCENTAGES OF
TOTAL ASSETS.  SEE THE DISTRICT COURT'S FINDING OF FACT NO. 66. 

/4/  206 F.SUPP.,AT 881. 

/5/  FINDING OF FACT NO. 91. 

/6/  FINDING OF FACT NO; 134, 

/7/  80 STAT. 7, 12 U.S.C. 1828(C) (1964 ED., SUPP. II).  THE ACT
PROVIDES, IN RELEVANT PART: 

"(5) THE RESPONSIBLE AGENCY SHALL NOT APPROVE-- 

"(A) ANY PROPOSED MERGER TRANSACTION WHICH WOULD RESULT IN A
MONOPOLY, OR WHICH WOULD BE IN FURTHERANCE OF ANY COMBINATION OR
CONSPIRACY TO MONOPOLIZE OR TO ATTEMPT TO MONOPOLIZE THE BUSINESS OF
BANKING IN ANY PART OF THE UNITED STATES, OR 

"(B) ANY OTHER PROPOSED MERGER TRANSACTION WHOSE EFFECT IN ANY
TO TEND TO CREATE A MONOPOLY, OR WHICH IN ANY OTHER MANNER WOULD BE IN
RESTRAINT OF TRADE, UNLESS IT FINDS THAT THE ANTICOMPETITIVE EFFECTS OF
THE PROPOSED TRANSACTION ARE CLEARLY OUTWEIGHED IN THE PUBLIC INTEREST
BY THE PROBABLE EFFECT OF THE TRANSACTION IN MEETING THE CONVENIENCE
AND NEEDS OF THE COMMUNITY TO BE SERVED. 

"IN EVERY CASE, THE RESPONSIBLE AGENCY SHALL TAKE INTO CONSIDERATION
THE FINANCIAL AND MANAGERIAL RESOURCES AND FUTURE PROSPECTS OF THE
EXISTING AND PROPOSED INSTITUTIONS, AND THE CONVENIENCE AND NEEDS OF
THE COMMUNITY TO BE SERVED. 

        .          .          .          . 

"(7) . . . . 

"(B) IN ANY JUDICIAL PROCEEDING ATTACKING A MERGER TRANSACTION
APPROVED UNDER PARAGRAPH (5) ON THE GROUND THAT THE MERGER TRANSACTION
ALONE AND OF ITSELF CONSTITUTED A VIOLATION OF ANY ANTITRUST LAWS OTHER
THAN (SEC. 2 OF THE SHERMAN ACT), THE STANDARDS APPLIED BY THE COURT
SHALL BE IDENTICAL WITH THOSE THAT THE BANKING AGENCIES ARE DIRECTED TO
APPLY UNDER PARAGRAPH (5)." 

/8/  SEE, E.G., 112 CONG.REC.  2447 (REMARKS OF CONGRESSMAN FINO). 

/9/  38 STAT. 731, AS AMENDED, 64 STAT. 1125, 15 U.S.C. 18. 

/10/  26 STAT. 209, 15 U.S.C. 1.  THE UNITED STATES APPEALED TO THIS
COURT ONLY FROM THE DISMISSAL OF THE SEC. 7 CLAYTON ACT CHARGE.  THE
SEC. 1 SHERMAN ACT COUNT IS THEREFORE NOT BEFORE US. 

/11/  LIABILITY FOR MONOPOLIZATION UNDER SEC. 2 OF THE SHERMAN ACT
WAS NOT EXCLUDED. 

/12/ THREE MERGERS ARE IN THIS CATEGORY:  THE NASHVILLE MERGER AT
ISSUE HERE; A CALIFORNIA MERGER, SEE UNITED STATES V. CROCKER-ANGLO
NATIONAL BANK, 263 F.SUPP.  125 (D.C.N.D. CAL. 1966); AND A ST. LOUIS
MERGER.  SEE H.R. REP. NO. 1221, 89TH CONG., 2D SESS., 4. 

/13/  SEE, E.G., 112 CONG.REC.  2465 (REMARKS OF CONGRESSMAN
ASHLEY). 

/14/  260 F.SUPP.,AT 874.  IF THE DISTRICT COURT FAILED TO REVIEW
THE ISSUES IN THE CASE DE NOVO, AS THIS QUOTATION SUGGESTS, IT
COMMITTED ERROR.  HOUSTON BANK, SUPRA.  OTHER STATEMENTS IN THE OPINION
AND FINDINGS BELOW SUGGEST THAT A DE NOVO JUDGMENT MAY ALSO HAVE BEEN
REACHED BY THE DISTRICT COURT.  OUR DISPOSITION OF THE CASE MAKES IT
UNNECESSARY TO DECIDE WHETHER UNDUE DEFERENCE WAS PAID TO THE
COMPTROLLER'S JUDGMENT. 

/15/  WE ALSO FIND IN THE ACT NO INTENTION TO ALTER THE TRADITIONAL
METHODS OF DEFINING RELEVANT MARKETS IN WHICH TO APPRAISE THE
ANTICOMPETITIVE EFFECT OF A MERGER, AND SO AGREE WITH THE DISTRICT
COURT THAT COMMERCIAL BANKING IN DAVIDSON COUNTY WAS THE RELEVANT
MARKET FOR APPRAISING THIS MERGER. 

/16/  112 CONG.REC.  2451.  SEE ALSO 112 CONG.REC.  2441-2442 (REMARKS
OF CONGRESSMAN PATMAN); 112 CONG.REC.  2455 (REMARKS OF CONGRESSMAN
REUSS); 112 CONG.REC.  2655 (STATEMENT OF SENATOR ROBERTSON). 

/17/  ALTHOUGH THE DISTRICT COURT ERRONEOUSLY DETERMINED THE
ANTITRUST IMPACT OF THE MERGER, ITS JUDGMENT THAT THE MERGER WAS NOT
UNLAWFUL UNDER THE ACT MAY NEVERTHELESS HAVE RESULTED FROM A SUFFICIENT
WEIGHING OF THE EVIDENCE BEFORE IT.  SOME OF THE FINDINGS BELOW SUGGEST
THE VIEW THAT THE MERGER WOULD TEND TO LESSEN COMPETITION BUT THAT THIS
ANTICOMPETITIVE EFFECT WOULD BE OUTWEIGHED BY BENEFITS TO THE
COMMUNITY.  THE ARGUMENT NEED NOT BE PURSUED, HOWEVER, SINCE WE HOLD
THAT THE DISTRICT COURT ALSO MISAPPLIED THE ACT'S CONVENIENCE-AND-NEEDS
PROVISION; 

/18/  SEE, E.G., 112 CONG.REC.  2663 (REMARKS OF SENATOR
ROBERTSON). 

/19/  SEE, E.G., 112 CONG.REC.  2459-2460 (REMARKS OF CONGRESSMAN
MULTER). 

/20/  IN FINDING OF FACT NO. 181 THE DISTRICT COURT CONCLUDED THAT
THE BANK'S "APPARENTLY GOOD EARNINGS RECORD" WOULD HAVE BEEN
DIMINISHED, ABSENT A MERGER, BY "THE EXPENDITURES WHICH NEEDED TO BE
MADE FOR THE PROPER MAINTENANCE OF THE BANK."  AMONG THESE EXPENDITURES
WERE INCREASED SALARIES, AUTOMATION, AND ESTABLISHMENT OF ADDITIONAL
BRANCH OFFICES.  THERE IS NO REASON TO THINK THAT SUCH INVESTMENT OF
ACCRUED PROFITS WOULD NOT HAVE BEEN REWARDED WITH A FAIR RETURN IN THE
FORM OF INCREASED FUTURE PROFITS. 

/21/  THE DISTRICT COURT DID CONCLUDE, IN FINDING OF FACT NO. 184,
THAT THE MERGER WAS "A BUSINESS NECESSITY" FOR NASHVILLE BANK AND TRUST
CO. THIS GENERAL CONCLUSION, WITHOUT SUPPORTING FINDINGS, HARDLY
ESTABLISHES THE POSSIBILITY OF EVENTUAL FAILURE. 

/22/  AN OFFICIAL OF A COMPANY SPECIALIZING IN RECRUITMENT OF
EXECUTIVES DID TESTIFY FOR THE BANKS AT THE TRIAL.  IN HIS OPINION,
RECRUITING EXECUTIVES FOR NASHVILLE BANK AND TRUST WOULD HAVE BEEN
EXTREMELY DIFFICULT. 

/23/  THE RECORD CONTAINS THE REVEALING STATEMENT BY WILLIAM C.
WEAVER, JR., THE LEADING MEMBER OF THE GROUP WHICH OWNED THE BANK AT
THE TIME OF THE MERGER: 

"WE FINALLY CONCLUDED BEFORE WE AGREED TO THE MERGER AGREEMENT WITH
THE THIRD NATIONAL BANK THAT, IF ONE OF US, ONE OF OUR GROUP, WAS
UNABLE TO GO DOWN THERE TO THE TRUST COMPANY AND DEVOTE FULL TIME TO
ITS AFFAIRS-- I WOULD LIKE TO SAY RIGHT HERE THAT NONE OF US IN THE
GROUP HAD ANY COMMERCIAL BANKING EXPERIENCE, AND THAT WAS A SERIOUS
PROBLEM. 

"BUT WE CONCLUDED THAT IF WE WERE UNABLE TO DEVOTE OUR FULL TIME TO
THE AFFAIRS OF THE BANK, IT WOULD BE IN THE BEST INTERESTS OF THE
CUSTOMERS OF THE BANK, THE EMPLOYEES OF THE BANK, THE STOCKHOLDERS OF
THE BANK, AND THE NASHVILLE COMMUNITY, FOR US TO MERGE WITH THE THIRD
NATIONAL BANK."  MR. WEAVER SEEMS TO HAVE FELT THAT ONE OR MORE MEMBERS
OF THE NEW OWNERSHIP GROUP WOULD HAVE BEEN ABLE TO FURNISH SATISFACTORY
EXECUTIVE LEADERSHIP FOR THE BANK. 

/24/  CAPITAL CITY BANK, FOUNDED IN 1960 AND BUT ONE-FOURTH THE SIZE
OF NASHVILLE BANK AND TRUST CO., WAS APPARENTLY FLOURISHING; 

IN THIS REGARD, A RECENT STUDY CONCLUDED THAT "THE SMALL BANK CAN
COMPETE SUCCESSFULLY WITH THE LARGE BANK-- IF IT HAS THE WILL TO DO
SO."  KOHN, COMPETITIVE CAPABILITIES OF SMALL BANKS, 60 BANKING,
JANUARY 1968, AT 64, REPORTING ON THE NEW YORK STATE BANKING
DEPARTMEN'S RESEARCH STUDY, THE FUTURE OF SMALL BANKS. 

MR. JUSTICE FOTAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

MY UNDERSTANDING OF THE PROCEDURAL STRUCTURE OF THE BANK MERGER ACT
OF 1966, /1/  BASED ON OUR DECISION LAST TERM IN UNITED STATES V. FIRST
CITY NATIONAL BANK OF HOUSTON, 386 U.S. 361, 364, IS THAT THE ACT
REQUIRES THE DISTRICT COURT TO ENGAGE IN A TWO-STEP PROCESS.  FIRST,
THE DISTRICT COURT MUST DECIDE WHETHER THE MERGER, CONSIDERED SOLELY
FROM AN ANTITRUST VIEWPOINT, WOULD VIOLATE THE CLAYTON ACT STANDARD
EMBODIED IN THE BANK MERGER ACT.  IF IT WOULD NOT, THE INQUIRY IS
OVER.  IF THERE WOULD BE A CIOLATION, THEN THE DISTRICT COURT MUST GO
ON TO DECIDE WHETHER "THE ANTICOMPETITIVE EFFECTS OF THE PROPOSED
TRANSACTION ARE CLEARLY OUTWEIGHED IN THE PUBLIC INTEREST BY THE
PROBABLE EFFECT OF THE TRANSACTION IN MEETING THE CONVENIENCE AND NEEDS
OF THE COMMUNITY TO BE SERVED."  /2/  IN MAKING THE LATTER DECISION,
THE DISTRICT COURT MUST AGAIN EVALUATE THE ANTITRUST FACTOR, THIS TIME
IN A LESS POLAR WAY.  FOR A COMPARATIVELY MINOR VIOLATION OF THE
CLAYTON ACT, LIKE THAT IN THIS CASE, OBVIOUSLY MAY BE MORE READILY
OUTWEIGHED BY FACTORS RELATING TO "CONVENIENCE AND NEEDS" THAN MAY A
RELATIVELY SERIOUS INFRACTION. 

TURNING TO THE APPLICATION OF THE ACT TO THIS CASE, THE FIRST
QUESTION IS WHETHER THE MERGER, AS AN ANTITRUST MATTER, WOULD VIOLATE
THE CLAYTON ACT.  I CONTINUE TO DISAGREE, PARTICULARLY IN THE BANKING
FIELD, WITH THE "NUMBERS GAME" TEST FOR DETERMINING CLAYTON ACT
VIOLATIONS WHICH WAS ADOPTED BY THIS COURT IN UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321.  HOWEVER, I CONSIDER MYSELF
BOUND BY THAT DECISION, AND UNDER ITS DICTATES I CONCUR IN THE COURT'S
FINDING THAT THIS MERGER WOULD VIOLATE THE ACT; 

I ALSO CONCUR IN THE COURT'S DECISION THAT THIS CASE MUST BE
REMANDED SO THAT THERE MAY BE A NEW APPLICATION OF THE SECOND-STEP
BALANCING PROCESS.  IN THIS CASE, WHICH WAS DECIDED BEFORE OUR DECISION
IN HOUSTON BANK, SUPRA, THE DISTRICT COURT EITHER OMITTED THE FIRST OF
THE TWO INDICATED PROCEDURAL STEPS OR CONCLUDED, INCORRECTLY, THAT THE
MERGER WOULD NOT VIOLATE THE CLAYTON ACT.  /3/  IN EITHER EVENT, THE
ERROR MAY HAVE CAUSED THE DISTRICT COURT TO MISCONCEIVE THE ANTITRUST
"THRESHOLD" AT WHICH THE SECOND-STEP BALANCING PROCESS WAS INTENDED TO
COME INTO PLAY.  THIS, IN TURN, MAY HAVE LED THE COURT TO GIVE THE
"ANTICOMPETITIVE EFFECT" OF THE MERGER A DIFFERENT WEIGHT IN THE
BALANCE THAN WAS INTENDED BY THE FRAMERS OF THE BANK MERGER ACT. 
HENCE, THE CASE MUST BE REMANDED TO THE DISTRICT COURT SO THAT IT MAY
REWEIGH THE COMPETING FACTORS IN LIGHT OF THE CORRECT ANTITRUST
THRESHOLD. 

WITH REGARD TO THE "CONVENIENCE AND NEEDS" SIDE OF THE BALANCE, I AM
IN ACCORD WITH THE COURT'S RULING THAT A MERGER SHOULD NOT BE APPROVED
UNDER THE 1966 ACT UNLESS THE DISTRICT COURT FINDS THAT THE BENEFITS
CONFERRED UPON THE COMMUNITY BY THE MERGER COULD NOT REASONABLY HAVE
BEEN ACHIEVED IN OTHER WAYS.  UNLIKE THE COURT, HOWEVER, I CONCLUDE
FROM THE RECORD THAT THE DISTRICT COURT DID MAKE ADEQUATE FINDINGS ON
THIS ISSUE.  THE RECORD REVEALS THAT MANY WITNESSES TESTIFIED THAT
NASHVILLE BANK HAD PROBLEMS OF REAL MAGNITUDE, THE GREATEST BEING TO
FIND REPLACEMENTS FOR KEY EXECUTIVES.  MR. WEAVER, THE LEADER OF THE
GROUP WHICH PURCHASED CONTROL OF THE BANK NOT LONG BEFORE THE MERGER,
TESTIFIED THAT INITIALLY HIS GROUP HAD INTENDED TO OPERATE THE BANK
THEMSELVES, BUT THAT TALKS WITH MANY BANKERS HAD CONVINCED HIM THAT HIS
GROUP COULD NOT SOLVE THE BANK'S PROBLEMS.  THE HEAD OF AN EXECUTIVE
PLACEMENT FIRM TESTIFIED THAT HE DID NOT BELIEVE THAT HE COULD HAVE
FOUND NEW EXECUTIVES FOR NASHVILLE BANK, IN LIGHT OF ITS OVERALL
SITUATION.  /4/  ALTHOUGH THERE WAS TESTIMONY IN REBUTTAL, INCLUDING
THAT OF ANOTHER RECRUITER OF EXECUTIVES, TO THE EFFECT THAT THE
PROBLEMS WERE NOT UNSOLVABLE, I CANNOT CONCLUDE THAT THE DISTRICT COURT
COMMITTED ERROR WHEN IT HELD THAT 

"WHILE THERE IS SOME CONFLICT, THE PREPONDERANCE OF THE EVIDENCE IS
THAT IT WOULD HAVE BEEN PRACTICALLY IMPOSSIBLE WITHIN ANY REASONABLE
PERIOD OF TIME TO OBTAIN ADEQUATE MANAGERIAL REPLACEMENTS EITHER FROM
WITHIN THE BANK OR FROM THE OUTSIDE, A PRODUCT OF THE BANK'S FAILURE .
.; TO PROVIDE ITSELF WITH THE FACILITIES, PROCEDURES AND EQUIPMENT
REQUIRED TO MAINTAIN A COMPETITIVE POSTURE."  260 F.SUPP.  869, 881. 

IN SUM, WHAT I WOULD CONSIDER TO BE THE SCOPE OF THE PROCEEDINGS ON
REMAND IS THIS.  IN LIGHT OF OUR HOLDING THAT A CLAYTON ACT VIOLATION
HAS BEEN MADE OUT, FURTHER CONSIDERATION OF THE FIRST-STEP ANTITRUST
ISSUE BY THE DISTRICT COURT IS FORECLOSED.  BELIEVING, AS I DO BUT
CONTRARY TO THE COURT, THAT THE FINDINGS ALREADY MADE BY THE DISTRICT
COURT AS TO THE ALTERNATIVES TO MERGER ARE ADEQUATE, IN MY VIEW THE
ONLY QUESTION FOR THE DISTRICT COURT TO CONSIDER RESPECTING THE SECOND
STEP IS WHETHER, BECAUSE OF ITS CHARACTER IN LIGHT OF THE ANTITRUST
STANDARD NOW SET FORTH, THE ANTITRUST VIOLATION SHOULD YIELD TO OTHER
FACTORS BEARING ON PUBLIC "CONVENIENCE AND NEEDS." 

/1/  80 STAT. 7, 12 U.S.C. 1828(C) (1964 ED;, SUPP. II). 

/2/  BANK MERGER ACT OF 1966, AMENDING SEC. 18(C)(5)(B) OF THE
FEDERAL DEPOSIT INSURANCE ACT, 12 U.S.C. 1828(C)(5)(B) (1964 ED., SUPP.
II). 

/3/  THE DISTRICT COURT'S OPINION IS UNCLEAR AS TO WHETHER THE COURT
CONSIDERED IT NECESSARY TO MAKE A DISCRETE FINDING UNDER THE CLAYTON
ACT. 

/4/  AN ACCOUNT OF NASHVILLE BANK'S OVERALL SITUATION APPEARS IN THE
COURT'S OPINION, ANTE, AT 175-176. 

DANIEL M. FRIEDMAN ARGUED THE CAUSE FOR THE UNITED STATES.  ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
TURNER, RICHARD A. POSNER AND BARRY GROSSMAN. 

E. WILLIAM HENRY ARGUED THE CAUSE FOR APPELLEES THIRD NATIONAL BANK
IN NASHVILLE ET AL. WITH HIM ON THE BRIEF WERE PAUL A. PORTER, DENNIS
G. LYONS, FRANK M. FARRIS, JR., EDWIN F. HUNT AND JOHN J. HOOKER, JR.
JOSEPH J. O'MALLEY ARGUED THE CAUSE FOR APPELLEE CAMP, COMPTROLLER OF
THE CURRENCY.  WITH HIM ON THE BRIEF WERE ROBERT BLOOM AND CHARLES H.
MCENERNEY, JR.
..END :






ROBERTS V. WARDEN, MARYLAND PENITENTIARY, 390 U.S. 196 


       ROBERTS V. WARDEN, MARYLAND PENITENTIARY. 

  APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

          FOURTH CIRCUIT. 

        NO. 950, MISC.  DECIDED MARCH 4, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :












RAINWATER V. FLORIDA, 390 U.S. 196 


       RAINWATER ET AL. V. FLORIDA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF

  APPEAL OF FLORIDA, THIRD DISTRICT. 

        NO. 18.  DECIDED MARCH 4, 1968. 


CERTIORARI GRANTED; 186 SO.2D 278, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF
THE COURT BELOW IS VACATED, AND THE CASE IS REMANDED FOR FURTHER
CONSIDERATION IN THE LIGHT OF MARCHETTI V. UNITED STATES, ANTE, P. 39. 
CF. HOFFA V. UNITED STATES, 387 U.S. 231; KOLOD V. UNITED STATES, ANTE,
P. 136. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

ALFRED L. SCANLAN AND J. EDWARD WORTON FOR PETITIONERS. 

SOLICITOR GENERAL MARSHALL FILED A MEMORANDUM FOR THE UNITED
STATES. 
..END :
























WYNN V. BYRNE, COUNTY PROSECUTOR, 390 U.S. 197 


       WYNN ET AL. V. BYRNE, COUNTY PROSECUTOR. 

 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

       DISTRICT OF NEW JERSEY. 

        NO. 977.  DECIDED MARCH 4, 1968. 


VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEW JERSEY IS VACATED AND THE CAUSE IS REMANDED TO THAT COURT FOR
FURTHER PROCEEDINGS.  MOODY V. FLOWERS, 387 U.S. 97, AT 104. 

MR. JUSTICE BLACK WOULD AFFIRM THE JUDGMENT. 

ROBERT L. CARTER, MARTIN GARBUS AND MORTON STAVIS FOR APPELLANTS. 

THOMAS P. FORD, JR., FOR APPELLEE. 
..END :






LEE V. KANSAS CITY, MISSOURI, 390 U.S. 197 


       LEE V. KANSAS CITY, MISSOURI. 

        APPEAL FROM THE SUPREME COURT OF MISSOURI. 

        NO. 383.  DECIDED MARCH 4, 1968. 


414 S.W.2D 251, VACATED AND REMANDED. 

PER CURIAM. 

THE JUDGMENT OF THE SUPREME COURT OF MISSOURI IS VACATED AND THE
CASE IS REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN THE LIGHT
OF MARCHETTI V. UNITED STATES, ANTE, P. 39. 

MICHAEL J. DRAPE FOR APPELLANT. 

JACK L. SIMMS FOR APPELLEE. 
..END :










ROBISON V. UNITED STATES, 390 U.S. 198 


       ROBISON V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE NINTH CIRCUIT. 

        NO. 451, MISC.  DENIED MARCH 4, 1968. 


CERTIORARI GRANTED; 379 F.2D 338, VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  IN LIGHT OF THE REPRESENTATIONS
OF THE SOLICITOR GENERAL AND OUR OWN INDEPENDENT CONSIDERATION OF THE
ENTIRE RECORD, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA FOR FURTHER
CONSIDERATION. 

SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES. 
..END :







ARGO V. ALABAMA, 390 U.S. 198 


       ARGO V. ALABAMA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           ALABAMA. 

        NO. 121, MISC.  DECIDED MARCH 4, 1968. 


CERTIORARI GRANTED; 280 ALA. 707, 195 SO.2D 819, VACATED AND
REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF ALABAMA FOR FURTHER
CONSIDERATION IN LIGHT OF LONG V. DISTRICT COURT OF IOWA, 385 U.S.
192; 

MACDONALD GALLION, ATTORNEY GENERAL OF ALABAMA, AND JOHN C. TYSON
III, ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :






JONES V. RUSSELL, WARDEN, 390 U.S. 199 


       JONES V. RUSSELL, WARDEN. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

TENNESSEE. 

        NO. 407, MISC.  DECIDED MARCH 4, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  UPON THE REPRESENTATIONS OF THE
ATTORNEY GENERAL AND OUR OWN INDEPENDENT CONSIDERATION OF THE ENTIRE
CASE, THE JUDGMENT IS VACATED AND THE CASE REMANDED TO THE SUPREME
COURT OF TENNESSEE FOR FURTHER PROCEEDINGS. 

GEORGE F. MCCANLESS, ATTORNEY GENERAL OF TENNESSEE, AND PAUL E.
JENNINGS, ASSISTANT ATTORNEY GENERAL, FOR RESPONDENT. 
..END :







JUSTICE V. UNITED STATES, 390 U.S. 199 


       JUSTICE ET UX. V. UNITED STATES ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN

           DISTRICT OF KENTUCKY. 

        NO. 570.  DECIDED MARCH 4, 1968. 


274 F.SUPP.  283, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

FRANCIS D. BURKE FOR APPELLANTS. 

ACTING SOLICITOR GENERAL SPRITZER, ASSISTANT ATTORNEY GENERAL
ROGOVIN AND JOSEPH M. HOWARD FOR THE UNITED STATES ET AL.
..END :









DECESARE V. UNITED STATES, 390 U.S. 200 


       DECESARE ET AL. V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

   COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

        NO. 11.  DECIDED MARCH 4, 1968.  /1/ 


CERTIORARI GRANTED; NO. 11, 356 F.2D 107; NO. 17, 361 F;2D 220; NO.
19, 363 F.2D 374; NO. 24, 366 F.2D 770; NO. 30, 368 F.2D 692; NO. 45,
369 F.2D 106; AND NO. 567, 375 F.2D 1012, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, THE JUDGMENTS OF
THE COURTS BELOW ARE VACATED, AND THE CASES ARE REMANDED FOR FURTHER
CONSIDERATION IN THE LIGHT OF MARCHETTI V. UNITED STATES, ANTE, P. 39. 
SEE ALSO 28 U.S.C. 2106 AND GROSSO V; UNITED STATES, ANTE, P. 62. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF NOS. 11, 17, 19, 24, 30, AND 45. 

ALLEN DAVID STOLAR FOR PETITIONERS IN NO. 11.  NEWTON B. SCHWARTZ
FOR PETITIONER IN NO. 17.  OLLIE LANCASTER, JR., FOR PETITIONERS IN NO.
19.  FRANCIS L. GIORDANO FOR PETITIONER IN NO. 24.  PATRICK T. MCGAHN,
JR., FOR PETITIONER IN NO. 30.  ROBERT J. O'HANLON AND RICHARD L. DALY
FOR PETITIONER IN NO. 45.  B. CLARENCE MAYFIELD FOR PETITIONER IN NO.
567. 

SOLICITOR GENERAL MARSHALL FOR THE UNITED STATES IN NO. 11. 
SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON, BEATRICE
ROSENBERG AND MERVYN HAMBURG FOR THE UNITED STATES IN NO. 17. 
SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON, MISS
ROSENBERG AND ROBERT G. MAYSACK FOR THE UNITED STATES IN NOS. 19 AND
30.  SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VISON, MISS
ROSENBERG AND SIDNEY M. GLAZER FOR THE UNITED STATES IN NO. 24. 
SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON, MISS
ROSENBERG AND KIRBY W. PATTERSON FOR THE UNITED STATES IN NO. 45. 
ACTING SOLICITOR GENERAL SPRITZER, ASSISTANT ATTORNEY GENERAL VINSON
AND MISS ROSENBERG FOR THE UNITED STATES IN NO. 567. 
..END :









COSTELLO V. UNITED STATES, 390 U.S. 201 


       COSTELLO V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT. 

        NO. 3.  DECIDED MARCH 4, 1968. 


352 F.2D 848, VACATED AND REMANDED. 

PER CURIAM. 

UPON THE SUGGESTION OF MOOTNESS BY REASON OF THE DEATH OF THE
PETITIONER, THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT IS VACATED AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT FOR SUCH DISPOSITION AS
LAW AND JUSTICE REQUIRE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

IRA B. GRUDBERG AND JACOB D. ZELDES FOR PETITIONER. 

SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON,
FRANCIS X. BEYTAGH, JR., BEATRICE ROSENBERG AND THEODORE GEORGE
GILINSKY FOR THE UNITED STATES. 
..END :























PICCIOLI V. UNITED STATES, 390 U.S. 202 


       PICCIOLI V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SECOND CIRCUIT. 

        NO. 4.  DECIDED MARCH 4, 1968.  /1/ 


CERTIORARI GRANTED; NO. 4, 352 F.2D 856; NO. 5, 354 F.2D 224; NO. 6,
354 F.2D 27; NO. 10, 355 F.2D 924, 356 F.2D 324; NO. 32, 367 F.2D 347;
NO. 374, 379 F.2D 394; AND NO. 2, MISC., 352 F.2D 848, VACATED AND
REMANDED. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, THE JUDGMENTS OF
THE COURTS BELOW ARE VACATED, AND THE CASES ARE REMANDED FOR FURTHER
CONSIDERATION IN THE LIGHT OF MARCHETTI V. UNITED STATES, ANTE, P. 39. 

/1/  TOGETHER WITH NO. 5, MILLO V. UNITED STATES; NO. 6, GRASSIA V.
UNITED STATES; NO. 10, DRISCOLL ET AL. V; UNITED STATES; NO. 32, SERAO
ET AL. V. UNITED STATES; NO. 374, BRIEOLE V. UNITED STATES; AND NO. 2,
MISC., GJANCI V. UNITED STATES, ALL ON PETITIONS FOR WRITS OF
CERTIORARI.  NOS. 5, 6, 32, AND 2, MISC., ARE TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT, NO. 374 TO THE THIRD CIRCUIT,
AND NO. 10 TO THE FIRST CIRCUIT.  THE MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS IN NO. 2, MISC., IS ALSO GRANTED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

ALFRED BELINKIE FOR PETITIONER IN NO. 4; EDWARD G. BURSTEIN FOR
PETITIONER IN NO. 5.  DAVID GOLDSTEIN AND JACOB D. ZELDES FOR
PETITIONER IN NO; 6.  FRANCIS J. DIMENTO, PAUL J; BURNS AND RONALD R.
POPEO FOR PETITIONERS IN NO; 10.  ALBERT J; KRIEGER AND ROBERT KASANOF
FOR PETITIONERS IN NO. 32.  MAX M. BARR FOR PETITIONER IN NO. 374; 

SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON,
BEATRICE ROSENBERG AND MARSHALL TAMOR GOLDING FOR THE UNITED STATES IN
NO. 4 AND NO. 2, MISC.  SOLICITOR GENERAL MARSHALL FOR THE UNITED
STATES IN NOS. 5, 6 AND 10.  SOLICITOR GENERAL MARSHALL, ASSISTANT
ATTORNEY GENERAL VINSON AND MISS ROSENBERG FOR THE UNITED STATES IN NO.
32.  ACTING SOLICITOR GENERAL SPRITZER, ASSISTANT ATTORNEY GENERAL
VINSON, MISS ROSENBERG AND JEROME M. FEIT FOR THE UNITED STATES IN NO.
374. 
..END :




FORGETT V. UNITED STATES, 390 U.S. 203 


       FORGETT V. UNITED STATES. 

        ON PETITION FOR REHEARING. 

        NO. 861, OCTOBER TERM, 1965.  DECIDED MARCH 4, 1968. 


REHEARING GRANTED AND DENIAL OF CERTIORARI, 383 U.S. 926, VACATED. 
CERTIORARI GRANTED; 349 F.2D 601, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR REHEARING IS GRANTED, THE ORDER OF FEBRARY 28,
1966, DENYING CERTIORARI IS VACATED, THE PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
IS GRANTED, THE JUDGMENT OF THAT COURT IS VACATED, AND THE CASE
REMANDED FOR FURTHER CONSIDERATION IN THE LIGHT OF HAYNES V. UNITED
STATES, ANTE, P. 85. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

CHARLES J. IRWIN, EUGENE GRESSMAN AND ARTHUR L. ABRAMS ON THE
PETITION FOR REHEARING. 
..END :




STONE V. UNITED STATES, 390 U.S. 204 


       STONE V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

        NO. 9.  DECIDED MARCH 4, 1968.  /1/ 


CERTIORARI GRANTED; NO. 9, 357 F.2D 257; NO. 14, 361 F.2D 153; NO.
77, 374 F.2D 227; NO. 121, 370 F.2D 987; NO. 798, 379 F.2D 946; AND NO.
1024, 386 F.2D 177, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, THE JUDGMENTS OF
THE COURTS BELOW ARE VACATED AND THE CASES ARE REMANDED FOR FURTHER
CONSIDERATION IN THE LIGHT OF MARCHETTI V. UNITED STATES, ANTE, P. 39,
AND GROSSO V; UNITED STATES, ANTE, P. 62. 

/1/  TOGETHER WITH NO. 14, CONTI ET AL. V. UNITED STATES; NO. 77,
ROSS V. UNITED STATES; NO. 121, DONLON V. UNITED STATES; NO. 798,
ANGELINI V. UNITED STATES; AND NO. 1024, PIZZARELLO V. UNITED STATES,
ALL ON PETITIONS FOR WRITS OF CERTIORARI.  NO. 77 IS TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, NOS. 14 AND 1024 TO THE
SECOND CIRCUIT, NO. 121 TO THE THIRD CIRCUIT, AND NO. 798 TO THE
SEVENTH CIRCUIT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF NOS. 9, 14, 77, AND 121. 

CHARLES W. TESSMER AND EMMETT COLVIN, JR., FOR PETITIONER IN NO. 9. 
WILLIAM T. GRIFFIN FOR PETITIONERS IN NO. 14.  SEYMOUR SAMUELS, JR.,
AND WILLIAM R. WILLIS, JR., FOR PETITIONER IN NO. 77.  ANNA R. LAVIN
AND RICHARD E. GORMAN FOR PETITIONER IN NO. 798.  JAMES G. STARKEY FOR
PETITIONER IN NO. 1024. 

FORMER SOLICITOR GENERAL MARSHALL FOR THE UNITED STATES IN NO. 9. 
FORMER SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON,
BEATRICE ROSENBERG AND THEODORE GEORGE GILINSKY FOR THE UNITED STATES
IN NO. 14.  FORMER SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY
GENERAL VINSON, MISS ROSENBERG AND MERVYN HAMBURG FOR THE UNITED STATES
IN NO. 77.  FORMER SOLICITOR GENERAL MARSHALL, ASSISTANT ATTORNEY
GENERAL VINSON, MISS ROSENBERG AND MARSHALL TAMOR GOLDING FOR THE
UNITED STATES IN NO. 121.  SOLICITOR GENERAL GRISWOLD, ASSISTANT
ATTORNEY GENERAL VINSON AND MISS ROSENBERG FOR THE UNITED STATES IN NO.
798.  SOLICITOR GENERAL GRISWOLD FOR THE UNITED STATES IN NO. 1024. 
..END :



ORTEGA V. MICHIGAN, 390 U.S. 204 


       ORTEGA V. MICHIGAN. 

        APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

        NO. 965, MISC.  DECIDED MARCH 4, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














ANDERSON V. GEORGIA, 390 U.S. 206 


       ANDERSON ET AL. V. GEORGIA. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

GEORGIA. 

        NO. 329, MISC.  DECIDED MARCH 4, 1968. 


CERTIORARI GRANTED; 223 GA. 174, 154 S.E.2D 246, REVERSED. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENTS OF THE SUPREME
COURT OF GEORGIA ARE REVERSED.  WHITUS V. GEORGIA, 385 U.S. 545. 

MR. JUSTICE HARLAN WOULD SET THE CASE FOR PLENARY CONSIDERATION. 

JACK GREENBERG, CHARLES STEPHEN RALSTON AND MICHAEL MELTSNER FOR
PETITIONERS. 

ARTHUR K. BOLTON, ATTORNEY GENERAL OF GEORGIA, G. ERNEST TIDWELL,
EXECUTIVE ASSISTANT ATTORNEY GENERAL, AND MARION O. GORDON, ASSISTANT
ATTORNEY GENERAL, FOR RESPONDENT. 
..END :



MARCHETTI V. UNITED STATES, 390 U.S. 39 


       MARCHETTI V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OR APPEALS FOR THE

SECOND CIRCUIT. 

        NO. 2.  ARGUED JANUARY 17-18, 1967.-- REARGUED OCTOBER 10,

           1967.-- DECIDED JANUARY 29, 1968. 


PETITIONER WAS CONVICTED FOR CONSPIRING TO EVADE PAYMENT OF THE
OCCUPATIONAL TAX RELATING TO WAGERS IMPOSED BY 26 U.S.C. 4411, FOR
EVADING SUCH PAYMENT, AND FOR FAILING TO COMPLY WITH SEC. 4412, WHICH
REQUIRES THOSE LIABLE FOR THE OCCUPATIONAL TAX TO REGISTER ANNUALLY
WITH THE INTERNAL REVENUE SERVICE AND TO SUPPLY DETAILED INFORMATION
FOR WHICH A SPECIAL FORM IS PRESCRIBED.  UNDER OTHER PROVISIONS OF THE
INTERRELATED STATUTORY SYSTEM FOR TAXING WAGERS, REGISTRANTS MUST
"CONSPICUOUSLY" POST AT THEIR BUSINESS PLACES OR KEEP ON THEIR PERSONS
STAMPS SHOWING PAYMENT OF THE TAX; MAINTAIN DAILY WAGERING RECORDS; AND
KEEP THEIR BOOKS OPEN FOR INSPECTION.  PAYMENT OF THE OCCUPATIONAL
TAXES IS DECLARED NOT TO EXEMPT PERSONS FROM FEDERAL OR STATE LAWS
WHICH BROADLY PROSCRIBE WAGERING, AND FEDERAL TAX AUTHORITIES ARE
REQUIRED BY SEC. 6107 TO FURNISH PROSECUTING OFFICERS LISTS OF THOSE
WHO HAVE PAID THE OCCUPATIONAL TAX.  PETITIONER, WHOSE ALLEGED WAGERING
ACTIVITIES SUBJECTED HIM TO POSSIBLE STATE OR FEDERAL PROSECUTION,
CONTENDED THAT THE STATUTORY REQUIREMENTS TO REGISTER AND TO PAY THE
OCCUPATIONAL TAX VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. 
THE COURT OF APPEALS AFFIRMED, RELYING ON UNITED STATES V. KAHRIGER,
345 U.S. 22, AND LEWIS V. UNITED STATES, 348 U.S. 419, WHICH HELD THE
PRIVILEGE UNAVAILABLE IN A SITUATION LIKE THE ONE HERE INVOLVED. 
HELD: 

1.  THE RECOGNIZED PRINCIPLE THAT TAXES MAY BE IMPOSED UPON UNLAWFUL
ACTIVITIES IS NOT AT ISSUE HERE.  P. 44. 

2.  PETITIONER'S ASSERTION OF HIS FIFTH AMENDMENT PRIVILEGE AGAINST
SELF-INCRIMINATION BARRED HIS PROSECUTION FOR VIOLATING THE FEDERAL
WAGERING TAX STATUTES.  PP. 48-61. 

  (A) ALL THE REQUIREMENTS FOR REGISTRATION AND PAYMENT OF THE
OCCUPATIONAL TAX WOULD HAVE HAD THE DIRECT AND UNMISTAKABLE CONSEQUENCE
OF INCRIMINATING PETITIONER.  PP. 48-49. 

  (B) PETITIONER DID NOT WAIVE HIS CONSTITUTIONAL PRIVILEGE BY
FAILING TO ASSERT IT WHEN THE TAX PAYMENTS WERE DUE.  PP. 50-51. 

  (C) UNITED STATES V. KAHRIGER, SUPRA, LEWIS V. UNITED STATES,
SUPRA, BOTH PRO TANTO OVERRULED.  PP. 50-54. 

  (D) THE PREMISES SUPPORTING SHAPIRO V. UNITED STATES, 335 U.S. 1
(VIZ., THAT THE RECORDS BE ANALOGOUS TO PUBLIC DOCUMENTS AND OF A KIND
WHICH THE REGULATED PARTY HAS CUSTOMARILY KEPT, AND THAT THE STATUTORY
REQUIREMENTS BE ESSENTIALLY REGULATORY RATHER THAN AIMED AT A
PARTICULAR GROUP SUSPECTED OF CRIMINAL ACTIVITIES), DO NOT APPLY TO THE
FACTS OF THIS CASE AND THEREFORE SHAPIRO'S "REQUIRED RECORDS" DOCTRINE
IS NOT CONTROLLING.  PP. 55-57. 

  (E) PERMITTING CONTINUED ENFORCEMENT OF THE REGISTRATION AND
OCCUPATIONAL TAX PROVISIONS BY IMPOSING RESTRICTIONS AGAINST THE USE BY
PROSECUTING AUTHORITIES OF INFORMATION OBTAINED THEREUNDER MIGHT
IMPROPERLY CONTRAVEN CONGRESS' PURPOSE IN ADOPTING THE WAGERING TAXES
AND IMPEDE ENFORCEMENT OF STATE GAMBLING LAWS. 

352 F.2D 848, REVERSED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT UNDER TWO INDICTMENTS WHICH CHARGED VIOLATIONS
OF THE FEDERAL WAGERING TAX STATUTES.  THE FIRST INDICTMENT AVERRED
THAT PETITIONER AND OTHERS CONSPIRED TO EVADE PAYMENT OF THE ANNUAL
OCCUPATIONAL TAX IMPOSED BY 26 U.S.C. 4411.  THE SECOND INDICTMENT
INCLUDED TWO COUNTS:  THE FIRST ALLEGED A WILLFUL FAILURE TO PAY THE
OCCUPATIONAL TAX, AND THE SECOND A WILLFUL FAILURE TO REGISTER, AS
REQUIRED BY 26 U.S.C. 4412, BEFORE ENGAGING IN THE BUSINESS OF
ACCEPTING WAGERS. 

AFTER VERDICT, PETITIONER UNSUCCESSFULLY SOUGHT TO ARREST JUDGMENT,
IN PART ON THE BASIS THAT THE STATUTORY OBLIGATIONS TO REGISTER AND TO
PAY THE OCCUPATIONAL TAX VIOLATED HIS FIFTH AMENDMENT PRIVILEGE AGAINST
SELF-INCRIMINATION.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMED, 352 F.2D 848, ON THE AUTHORITY OF UNITED STATES V. KAHRIGER,
345 U.S. 22, AND LEWIS V. UNITED STATES, 348 U.S. 419. 

WE GRANTED CERTIORARI TO RE-EXAMINE THE CONSTITUTIONALITY UNDER THE
FIFTH AMENDMENT OF THE PERTINENT PROVISIONS OF THE WAGERING TAX
STATUTES, AND MORE PARTICULARLY TO CONSIDER WHETHER KAHRIGER AND LEWIS
STILL HAVE VITALITY.  /1/  383 U.S. 942.  FOR REASONS WHICH FOLLOW, WE
HAVE CONCLUDED THAT THESE PROVISIONS MAY NOT BE EMPLOYED TO PUNISH
CRIMINALLY THOSE PERSONS WHO HAVE DEFENDED A FAILURE TO COMPLY WITH
THEIR REQUIREMENTS WITH A PROPER ASSERTION OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION.  THE JUDGMENT BELOW IS ACCORDINGLY REVERSED. 

        I. 

THE PROVISIONS IN ISSUE HERE ARE PART OF AN INTERRELATED STATUTORY
SYSTEM FOR TAXING WAGERS.  THE SYSTEM IS BROADLY AS FOLLOWS.  SECTION
4401 OF TITLE 26 IMPOSES UPON THOSE ENGAGED IN THE BUSINESS OF
ACCEPTING WAGERS AN EXCISE TAX OF 10% OF THE GROSS AMOUNT OF ALL WAGERS
THEY ACCEPT, INCLUDING THE VALUE OF CHANCES PURCHASED IN LOTTERIES
CONDUCTED FOR PROFIT.  PARIMUTUEL WAGERING ENTERPRISES, COIN-OPERATED
DEVICES, AND STATE-CONDUCTED SWEEPSTAKES ARE EXPRESSLY EXCLUDED FROM
TAXATION.  26 U.S.C. 4402 (1964 ED., SUPP. II).  SECTION 4411 IMPOSES
IN ADDITION AN OCCUPATIONAL TAX OF $50 ANNUALLY, BOTH UPON THOSE
SUBJECT TO TAXATION UNDER SEC. 4401 AND BOTH UPON THOSE SUBJECT TO
TAXATION UNDER SEC. 4401 AND UPON THOSE WHO RECEIVE WAGERS ON THEIR
BEHALF. 

THE TAXES ARE SUPPLEMENTED BY ANCILLARY PROVISIONS CALCULATED TO
ASSURE THEIR COLLECTION.  IN PARTICULAR, SEC. 4412 REQUIRES THOSE
LIABLE FOR THE OCCUPATIONAL TAX TO REGISTER EACH YEAR WITH THE DIRECTOR
OF THEIR LOCAL INTERNAL REVENUE DISTRICT.  THE REGISTRANTS MUST SUBMIT
INTERNAL REVENUE SERVICE FORM 11-C, /2/  AND UPON IT MUST PROVIDE THEIR
RESIDENCE AND BUSINESS ADDRESSES, MUST INDICATE WHETHER THEY ARE
ENGAGED IN THE BUSINESS OF ACCEPTING WAGERS, AND MUST LIST THE NAMES
AND ADDRESSES OF THEIR AGENTS AND EMPLOYEES.  THE STATUTORY OBLIGATIONS
TO REGISTER AND TO PAY THE OCCUPATIONAL TAX ARE ESSENTIALLY INSEPARABLE
ELEMENTS OF A SINGLE REGISTRATION PROCEDURE; /3/  FORM 11-C THUS
CONSTITUTES BOTH THE APPLICATION FOR REGISTRATION AND THE RETURN FOR
THE OCCUPATIONAL TAX.  /4/ 

IN ADDITION, REGISTRANTS ARE OBLIGED TO POST THE REVENUE STAMPS WHICH
DENOTE PAYMENT OF THE OCCUPATIONAL TAX "CONSPICUOUSLY" IN THEIR
PRINCIPAL PLACES OF BUSINESS, OR, IF THEY LACK SUCH PLACES, TO KEEP THE
STAMPS ON THEIR PERSONS, AND TO EXHIBIT THEM UPON DEMAND TO ANY
TREASURY OFFICER.  26 U.S.C. 6806(C).  THEY ARE REQUIRED TO PRESERVE
DAILY RECORDS INDICATING THE GROSS AMOUNT OF THE WAGERS AS TO WHICH
THEY ARE LIABLE FOR TAXATION, AND TO PERMIT INSPECTION OF THEIR BOOKS
OF ACCOUNT.  26 U.S.C. 4403, 4423.  MOREOVER, EACH PRINCIPAL INTERNAL
REVENUE OFFICE IS INSTRUCTED TO MAINTAIN FOR PUBLIC INSPECTION A
LISTING OF ALL WHO HAVE PAID THE OCCUPATIONAL TAX, AND TO PROVIDE
CERTIFIED COPIES OF THE LISTING UPON REQUEST TO ANY STATE OR LOCAL
PROSECUTING OFFICER.  26 U.S.C. 6107.  FINALLY, PAYMENT OF THE WAGERING
TAXES IS DECLARED NOT TO "EXEMPT ANY PERSON FROM ANY PENALTY PROVIDED
BY A LAW OF THE UNITED STATES OR OF ANY STATE FOR ENGAGING" IN ANY
TAXABLE ACTIVITY.  26 U.S.C. 4422. 

        II. 

THE ISSUE BEFORE US IS NOT WHETHER THE UNITED STATES MAY TAX
ACTIVITIES WHICH A STATE OR CONGRESS HAS DECLARED UNLAWFUL.  THE COURT
HAS REPEATEDLY INDICATED THAT THE UNLAWFULNESS OF AN ACTIVITY DOES NOT
PREVENT ITS TAXATION, AND NOTHING THAT FOLLOWS IS INTENDED TO LIMIT OR
DIMINISH THE VITALITY OF THOSE CASES.  SEE, E.G., LICENSE TAX CASES, 5
WALL.  462.  THE ISSUE IS INSTEAD WHETHER THE METHODS EMPLOYED BY
CONGRESS IN THE FEDERAL WAGERING TAX STATUTES ARE, IN THIS SITUATION,
CONSISTENT WITH THE LIMITATIONS CREATED BY THE PRIVILEGE AGAINST SELF
INCRIMINATION GUARANTEED BY THE FIFTH AMENDMENT.  WE MUST FOR THIS
PURPOSE FIRST EXAMINE THE IMPLICATIONS OF THESE STATUTORY PROVISIONS. 

WAGERING AND ITS ANCILLARY ACTIVITIES ARE VERY WISELY PROHIBITED
UNDER BOTH FEDERAL AND STATE LAW.  FEDERAL STATUTES IMPOSE CRIMINAL
PENALTIES UPON THE INTERSTATE TRANSMISSION OF WAGERING INFORMATION, 18
U.S.C. 1084; UPON INTERSTATE AND FOREIGH TRAVEL OR TRANSPORTATION IN
AID OF RACKETEERING ENTERPRISES, DEFINED TO INCLUDED GAMBLING, 18
U.S.C. 1952; UPON LOTTERIES CONDUCTED THROUGH USE OF THE MAILS OR
BROADCASTING, 18 U.S.C. 1301-1304; AND UPON THE INTERSTATE
TRANSPORTATION OF WAGERING PARAPHERNALIA, 18 U.S.C. 1953. 

STATE AND LOCAL ENACTMENTS ARE MORE COMPREHENSIVE.  THE LAWS OF
EVERY STATE, EXCEPT NEVADA, INCLUDE BROAD PROHIBITIONS AGAINST
GAMBLING, WAGERING, AND ASSOCIATED ACTIVITIES.  /5/  EVERY STATE
FORBIDS, WITH ESSENTIALLY MINOR AND CAREFULLY CIRCUMSCRIBED EXCEPTIONS,
LOTTERIES.  /6/  EVEN NEVADA, WHICH PERMITS MANY FORMS OF GAMBLING,
RETAINS CRIMINAL PENALTIES UPON LOTTERIES AND CERTAIN OTHER WAGERING
ACTIVITIES TAXABLE UNDER THESE STATUTES.  NEV. REV. STAT. SECS.
293.603, 462.010-462.080, 465.010 (1957). 

CONNECTICUT, IN WHICH PETITIONER ALLEGEDLY CONDUCTED HIS ACTIVITIES,
HAS ADOPTED A VARIETY OF MEASURES FOR THE PUNISHMENT OF GAMBLING AND
WAGERING.  IT PUNISHES "(ANY PERSON, WHETHER AS PRINCIPAL, AGENT OR
SERVANT, WHO OWNS, POSSESSES, KEEPS, MANAGES, MAINTAINS OR OCCUPIES"
PREMISES EMPLOYED FOR PURPOSES OF WAGERING OR POOL SELLING.  CONN. GEN.
STAT. REV. SEC. 53-295 (1958).  IT IMPOSES CRIMINAL PENALTIES UPON ANY
PERSON WHO POSSESSES, KEEPS, OR MAINTAINS PREMISES IN WHICH POLICY
PLAYING OCCURS, OR LOTTERIES ARE CONDUCTED, AND UPON ANY PERSON WHO
BECOMES THE CUSTODIAN OF BOOKS, PROPERTY, APPLIANCES, OR APPARATUS
EMPLOYED FOR WAGERING.  CONN. GEN. STAT. REV. SEC. 53-298 (1958).  SEE
ALSO SECS. 53-273, 53-290, 53-293.  IT PROVIDES ADDITIONAL PENALTIES
FOR THOSE WHO CONSPIRE TO ORGANIZE OR CONDUCT UNLAWFUL WAGERING
ACTIVITIES.  CONN. GEN. STAT. REV. SEC. 54-197 (1958).  EVERY ASPECT OF
PETITIONER'S WAGERING ACTIVITIES THUS SUBJECTED HIM TO POSSIBLE STATE
OR FEDERAL PROSECUTION.  BY ANY STANDARD, IN CONNECTICUT AND THROUGHOUT
THE UNITED STATES, WAGERING IS "AN AREA PERMEATED WITH CRIMINAL
STATUTES," AND THOSE ENGAGED IN WAGERING ARE A GROUP "INHERENTLY
SUSPECT OF CRIMINAL ACTIVITIES."  ALBERTSON V. SACB, 382 U.S. 70, 79. 

INFORMATION OBTAINED AS A CONSEQUENCE OF THE FEDERAL WAGERING TAX
LAWS IS READILY AVAILABLE TO ASSIST THE EFFORST OF STATE AND FEDERAL
AUTHORITIES TO ENFORCE THESE PENALTIES.  SECTION 6107 OF TITLE 26
REQUIRES THE PRINCIPAL INTERNAL REVENUE OFFICES TO PROVIDE TO
PROSECUTING OFFICERS A LISTING OF THOSE WHO HAVE PAID THE OCCUPATIONAL
TAX.  SECTION 6806(C) OBLIGES TAXPAYERS EITHER TO POST THE REVENUE
STAMP "CONSPICUOUSLY" IN THEIR PRINCIPAL PLACES OF BUSINESS, OR TO KEEP
IT ON THEIR PERSONS, AND TO PRODUCE IT ON THE DEMAND OF TREASURY
OFFICERS.  EVIDENCE OF THE POSSESSION OF A FEDERAL WAGERING TAX STAMP,
OR OF PAYMENT OF THE WAGERING TAXES, HAS OFTEN BEEN ADMITTED AT TRIAL
IN STATE AND FEDERAL PROSECUTIONS FOR GAMBLING OFFENSES; /7/  SUCH
EVIDENCE HAS DOUBTLESS PROVED USEFUL EVEN MORE FREQUENTLY TO LEAD
PROSECUTING AUTHORITIES TO OTHER EVIDENCE UPON WHICH CONVICTIONS HAVE
SUBSEQUENTLY BEEN OBTAINED.  /8/  FINALLY, WE ARE OBLIGED TO NOTICE
THAT A FORMER COMMISSIONER OF INTERNAL REVENUE HAS ACKNOWLEDGED THAT
THE SERVICE "MAKES AVAILABLE" TO LAW ENFORCEMENT AGENCIES THE NAMES AND
ADDRESSES OF THOSE WHO HAVE PAID THE WAGERING TAXES, AND THAT IT IS IN
"FULL COOPERATION" WITH THE EFFORTS OF THE ATTORNEY GENERAL OF THE
UNITED STATES TO SUPPRESS ORGANIZED GAMBLING.  CAPLIN, THE GAMBLING
BUSINESS AND FEDERAL TAXES, 8 CRIME & DELIN.  371, 372, 377. 

IN THESE CIRCUMSTANCES, IT CAN SCARCELY BE DENIED THAT THE
OBLIGATIONS TO REGISTER AND TO PAY THE OCCUPATIONAL TAX CREATED FOR
PETITIONER "REAL AND APPRECIABLE," AND NOT MERELY "IMAGINARY AND
UNSUBSTANTIAL," HAZARDS OF SELF-INCRIMINATION.  REG. V. BOYES, 1 B.& S.
311, 330; BROWN V. WALKER, 161 U.S. 591, 599-600; ROGERS V. UNITED
STATES, 340 U.S. 367, 374.  PETITIONER WAS CONFRONTED BY A
COMPREHENSIVE SYSTEM OF FEDERAL AND STATE PROHIBITIONS AGAINST WAGERING
ACTIVITIES; HE WAS REQUIRED, ON PAIN OF CRIMINAL PROSECTUION, TO
PROVIDE INFORMATION WHICH HE MIGHT REASONABLY SUPPOSE WOULD BE
AVAILABLE TO PROSECUTING AUTHORITIES, AND WHICH WOULD SURELY PROVE A
SIGNIFICANT "LINK IN A CHAIN"  /9/  OF EVIDENCE TENDING TO ESTABLISH
HIS GUILT.  /10/  UNLIKE THE INCOME TAX RETURN IN QUESTION IN UNITED
STATES V. SULLIVAN, 274 U.S. 259, EVERY PORTION OF THESE REQUIREMENTS
HAD THE DIRECT AND UNMISTAKABLE CONSEQUENCE OF INCRIMINATING
PETITIONER; THE APPLICATION OF THE CONSTITUTIONAL PRIVILEGE TO THE
ENTIRE REGISTRATION PROCEDURE WAS IN THIS INSTANCE NEITHER "EXTREME"
NOR "EXTRAVAGANT."  SEE ID., AT 263.  IT WOULD APPEAR TO FOLLOW THAT
PETITIONER'S ASSERTION OF THE PRIVILEGE AS A DEFENSE TO THIS
PROSECUTION WAS ENTIRELY PROPER, AND ACCORDINGLY SHOULD HAVE SUFFICED
TO PREVENT HIS CONVICTION. 

NONETHELESS, THIS COURT HAS TWICE CONCLUDED THAT THE PRIVILEGE
AGAINST SELF-INCRIMINATION MAY NOT APPROPRIATELY BE ASSERTED BY THOSE
IN PETITIONER'S CIRCUMSTANCES.  UNITED STATES V. KAHRIGER, SUPRA; LEWIS
V. UNITED STATES, SUPRA.  WE MUST THEREFORE CONSIDER WHETHER THOSE
CASES HAVE CONTINUING FORCE IN LIGHT OF OUR MORE RECENT DECISIONS. 
MOREOVER, WE MUST ALSO CONSIDER THE RELEVANCE OF CERTAIN COLLATERAL
LINES OF AUTHORITY; IN PARTICULAR, WE MUST DETERMINE WHETHER EITHER THE
"REQUIRED RECORDS" DOCTRINE, SHAPIRO V. UNITED STATES, 335 U.S. 1, OR
RESTRICTIONS PLACED UPON THE USE BY PRESECUTING AUTHORITIES OF
INFORMATION OBTAINED AS A CONSEQUENCE OF THE WAGERING TAXES, CF. MURPHY
V. WATERFRONT COMMISSION, 378 U.S. 52, SHOULD BE UTILIZED TO PRECLUDE
ASSERTION OF THE CONSTITUTIONAL PRIVILEGE IN THIS SITUATION.  TO THESE
QUESTIONS WE TURN. 

      III. 

THE COURT'S OPINION IN KAHRIGER SUGGESTED THAT A DEFENDANT UNDER
INDICTMENT FOR WILLFUL FAILURE TO REGISTER UNDER SEC. 4412 CANNOT
PROPERLY CHALLENGE THE CONSTITUTIONALITY UNDER THE FIFTH AMENDMENT OF
THE REGISTRATION REQUIREMENT.  FOR THIS POINT, THE COURT RELIED
ENTIRELY UPON MR. JUSTICE HOLMES' OPINION FOR THE COURT IN UNITED
STATES V. SULLIVAN, SUPRA. THE TAXPAYER IN SULLIVAN WAS CONVICTED OF
WILLFUL FAILURE TO FILE AN INCOME TAX RETURN, DESPITE HIS CONTENTION
THAT THE RETURN WOULD HAVE OBLIGED HIM TO ADMIT VIOLATIONS OF THE
NATIONAL PROHIBITION ACT.  THE COURT AFFIRMED THE CONVICTION, AND
REJECTED THE TAXPAYER'S CLAIM OF THE PRIVILEGE.  IT CONCLUDED THAT MOST
OF THE RETURN'S QUESTIONS WOULD NOT HAVE COMPELLED THE TAXPAYER TO MAKE
INCRIMINATING DISCLOSURES, AND THAT IT WOULD HAVE BEEN "AN EXTREME IF
NOT AN EXTRAVAGANT APPLICATION" OF THE PRIVILEGE TO PERMIT HIM TO DRAW
WITHIN IT THE ENTIRE RETURN.  274 U.S.,AT 263. 

THE COURT IN SULLIVAN WAS EVIDENTLY CONCERNED, FIRST, THAT THE CLAIM
BEFORE IT WAS AN UNWARRANTED EXTENSION OF THE SCOPE OF THE PRIVILEGE,
AND, SECOND, THAT TO ACCEPT A CLAIM OF PRIVILEGE NOT ASSERTED AT THE
TIME THE RETURN WAS DUE WOULD "MAKE THE TAXPAYER RATHER THAN A TRIBUNAL
THE FINAL ARBITER OF THE MERITS OF THE CLAIM."  ALBERTSON V. SACB, 382
U.S. 70, 79.  NEITHER REASON SUFFICES TO PREVENT THIS PETITIONER'S
ASSERTION OF THE PRIVILEGE.  THE FIRST IS, AS WE HAVE INDICATED,
INAPPLICABLE, AND WE FIND THE SECOND UNPERSUASIVE IN THIS SITUATION. 
EVERY ELEMENT OF THESE REQUIREMENTS WOULD HAVE SERVED TO INCRIMINATE
PETITIONER; TO HAVE REQUIRED HIM TO PRESENT HIS CLAIM TO TREASURY
OFFICERS WOULD HAVE OBLIGED HIM "TO PROVE GUILT TO AVOID ADMITTING
IT."  UNITED STATES V. KAHRIGER, SUPRA, AT 34 (CONCURRING OPINION).  IN
THESE CIRCUMSTANCES, WE CANNOT CONCLUDE THAT HIS FAILURE TO ASSERT THE
PRIVILEGE TO TREASURY OFFICIALS AT THE MOMENT THE TAX PAYMENTS WERE DUE
IRRETRIEVABLY ABANDONED HIS CONSTITUTIONAL PROTECTION.  PETITIONER IS
UNDER SENTENCE FOR VIOLATION OF STATUTORY REQUIREMENTS WHICH HE
CONSISTENTLY ASSERTED AT AND AFTER TRIAL TO BE UNCONSTITUTIONAL; NO
MORE CAN HERE BE REQUIRED. 

THE COURT HELD IN LEWIS THAT THE REGISTRATION AND OCCUPATIONAL TAX
REQUIREMENTS DO NOT INFRINGE THE CONSTITUTIONAL PRIVILEGE BECAUSE THEY
DO NOT COMPEL SELF-INCRIMINATION, BUT MERELY IMPOSE ON THE GAMBLER THE
INITIAL CHOICE OF WHETHER HE WISHES, AT THE COST OF HIS CONSTITUTIONAL
PRIVILEGE, TO COMMENCE WAGERING ACTIVITIES.  THE COURT REASONED THAT
EVEN IF THE REQUIRED DISCLOSURES MIGHT PROVE INCRIMINATING, THE GAMBLER
NEED NOT REGISTER OR PAY THE OCCUPATIONAL TAX IF ONLY HE ELECTS TO
CEASE, OR NEVER TO BEGIN, GAMBLING.  THERE IS, THE COURT SAID, "NO
CONSTITUTIONAL RIGHT TO GAMBLE."  348 U.S.,AT 423;     WE FIND THIS
REASONING NO LONGER PERSUASIVE.  THE QUESTION IS NOT WHETHER PETITIONER
HOLDS A "RIGHT" TO BE COMPELLED TO GIVE EVIDENCE AGAINST HIMSELF.  THE
CONSTITUTIONAL PRIVILEGE WAS INTENDED TO SHIELD THE GUILTY AND
IMPRUDENT AS WELL AS THE INNOCENT AND FORESIGHTED; IF SUCH AN INFERENCE
OF ANTECEDENT CHOICE WERE ALONE ENOUGH TO ABROGATE THE PRIVILEGE'S
PROTECTION, IT WOULD BE EXCLUDED FROM THE SITUATIONS IN WHICH IT HAS
HISTORICALLY BEEN GUARANTEED, AND WITHHELD FROM THOSE WHO MOST REQUIRE
IT.  SUCH INFERENCES, BOTTOMED ON WHAT MUST ORDINARILY BE A FICTION,
HAVE PRECISELY THE INFIRMITIES WHICH THE COURT HAS FOUND IN OTHER
CIRCUMSTANCES IN WHICH IMPLIED OR UNINFORMED WAIVERS OF THE PRIVILEGE
HAVE BEEN SAID TO HAVE OCCURRED.  SEE, E.G., CARNLEY V. COCHRAN, 369
U.S. 506.  COMPARE JOHNSON V. ZERBST, 304 U.S. 458; AND GLASSER V.
UNITED STATES, 315 U.S. 60.  TO GIVE CREDENCE TO SUCH "WAIVERS" WITHOUT
THE MOST DELIBERATE EXAMINATION OF THE CIRCUMSTANCES SURROUNDING THEM
WOULD ULTIMATELY LICENSE WIDESPREAD EROSION OF THE PRIVILEGE THROUGH
"INGENIOUSLY DRAWN LEGISLATION."  MORGAN, THE PRIVILEGE AGAINST SELF
INCRIMINATION, 34 MINN.L.REV.  1, 37.  WE CANNOT AGREE THAT THE
CONSTITUTIONAL PRIVILEGE IS MEANINGFULLY WAIVED MERELY BECAUSE THOSE
"INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES"  HAVE BEEN COMMANDED EITHER
TO CEASE WAGERING OR TO PROVIDE INFORMATION INCRIMINATING TO
THEMSELVES, AND HAVE ULTIMATELY ELECTED TO DO NEITHER. 

THE COURT HELD IN BOTH KAHRIGER AND LEWIS THAT THE REGISTRATION AND
OCCUPATIONAL TAX REQUIREMENTS ARE ENTIRELY PROSPECTIVE IN THEIR
APPLICATION, AND THAT THE CONSTITUTIONAL PRIVILEGE, SINCE IT OFFERS
PROTECTION ONLY AS TO PAST AND PRESENT ACTS, IS ACCORDINGLY
UNAVAILABLE.  THIS REASONING APPEARS TO US TWICE DEFICIENT:  FIRST, IT
OVERLOOKS THE HAZARDS HERE OF INCRIMINATION AS TO PAST OR PRESENT ACTS;
AND SECOND, IT IS HINGED UPON AN EXCESSIVELY NARROW VIEW OF THE SCOPE
OF THE CONSTITUTIONAL PRIVILEGE. 

SUBSTANTIAL HAZARDS OF INCRIMINATION AS TO PAST OR PRESENT ACTS
PLAINLY MAY STEM FROM THE REQUIREMENTS TO REGISTER AND TO PAY THE
OCCUPATIONAL TAX.  SEE GENERALLY MCKEE, THE FIFTH AMENDMENT AND THE
FEDERAL GAMBLING TAX, 5 DUKE B.J. 86.  IN THE FIRST PLACE, SATISFACTION
OF THOSE REQUIREMENTS INCREASES THE LIKELIHOOD THAT ANY PAST OR PRESENT
GAMBLING OFFENSES WILL BE DISCOVERED AND SUCCESSFULLY PROSECUTED.  IT
BOTH CENTERS ATTENTION UPON THE REGISTRANT AS A GAMBLER, AND COMPELS
"INJURIOUS DISCLOSURES)"  /11/  WHICH MAY PROVIDE OR ASSIST IN THE
COLLECTION OF EVIDENCE ADMISSIBLE IN A PROSECUTION FOR PAST OR PRESENT
OFFENSES.  THESE OFFENSES NEED NOT INCLUDE ACTUAL GAMBLING; THEY MIGHT
INVOLVE ONLY THE CUSTODY OR TRANSPORTATION OF GAMBLING PARAPHERNALIA,
OR OTHER PREPARATIONS FOR FUTURE GAMBLING.  FURTHER, THE ACQUISITION OF
A FEDERAL GAMBLING TAX STAMP, REQUIRING AS IT DOES THE DECLARATION OF A
PRESENT INTENT TO COMMENCE GAMBLING ACTIVITIES, OBLIGES EVEN A
PROSPECTIVE GAMBLER TO ACCUSE HIMSELF OF CONSPIRACY TO VIOLATE EITHER
STATE GAMBLING PROHIBITIONS, OR FEDERAL LAWS FORBIDDING THE USE OF
INTERSTATE FACILITIES FOR GAMBLING PURPOSES.  SEE, E.G., ACKLEN V.
STATE, 196 TENN. 314, 267 S.W.2D 101. 

THERE IS A SECOND, AND MORE FUNDAMENTAL, DEFICIENCY IN THE REASONING
OF KAHRIGER AND LEWIS.  ITS LINCHPIN IS PLAINLY THE PREMISE THAT THE
PRIVILEGE IS ENTIRELY INAPPLICABLE TO PROSPECTIVE ACTS; FOR THIS THE
COURT IN KAHRIGER COULD VOUCH AS AUTHORITY ONLY A GENERALIZATION AT 8
WIGMORE, EVIDENCE 2259C (3D ED. 1940).  /12/  WE SEE NO WARRANT FOR SO
RIGOROUS A CONSTRAINT UPON THE CONSTITUTIONAL PRIVILEGE.  HISTORY, TO
BE SURE, OFFERS NO READY ILLUSTRATIONS OF THE PRIVILEGE'S APPLICATION
TO PROSPECTIVE ACTS, BUT THE OCCASIONS ON WHICH SUCH CLAIMS MIGHT
APPROPRIATELY HAVE BEEN MADE MUST NECESSARILY HAVE BEEN VERY
INFREQUENT.  WE ARE, IN ANY EVENT, BID TO VIEW THE CONSTITUTIONAL
COMMANDS AS "ORGANIC LIVING INSTITUTIONS," WHOSE SIGNIFICANCE IS "VITAL
NOT FORMAL."  GOMPERS V. UNITED STATES, 233 U.S. 604, 610. 

THE CENTRAL STANDARD FOR THE PRIVILEGE'S APPLICATION HAS BEEN
WHETHER THE CLAIMANT IS CONFRONTED BY SUBSTANTIAL AND "REAL," AND NOT
MERELY TRIFLING OR IMAGINARY, HAZARDS OF INCRIMINATION.  ROGERS V.
UNITED STATES, 340 U.S. 367, 374; BROWN V. WALKER, 161 U.S. 591, 600. 
THIS PRINCIPLE DOES NOT PERMIT THE RIGID CHRONOLOGICAL DISTINCTION
ADOPTED IN KAHRIGER AND LEWIS.  WE SEE NO REASON TO SUPPOSE THAT THE
FORCE OF THE CONSTITUTIONAL PROHIBITION IS DIMINISHED MERELY BECAUSE
CONFESSION OF A GUILTY PURPOSE PRECEDES THE ACT WHICH IT IS
SUBSEQUENTLY EMPLOYED TO EVIDENCE.  YET, IF THE FACTUAL SITUATIONS IN
WHICH THE PRIVILEGE MAY BE CLAIMED WERE INFLEXIBLY DEFINED BY A
CHRONOLOGICAL FORMULA, THE POLICIES WHICH THE CONSTITUTIONAL PRIVILEGE
IS INTENDED TO SERVE COULD EASILY BE EVADED.  MOREOVER, ALTHOUGH
PROSPECTIVE ACTS WILL DOUBTLESS ORDINARILY INVOLVE ONLY SPECULATIVE AND
INSUBSTANTIAL RISKS OF INCRIMINATION, THIS WILL SCARCELY ALWAYS PROVE
TRUE.  AS WE SHALL SHOW, IT IS NOT TRUE HERE.  WE CONCLUDE THAT IT IS
NOT MERE TIME TO WHICH THE LAW MUST LOOK, BUT THE SUBSTANTIALITY OF THE
RISKS OF INCRIMINATION. 

THE HAZARDS OF INCRIMINATION CREATED BY SECS. 4411 AND 4412 AS TO
FUTURE ACTS ARE NOT TRIFLING OR IMAGINARY.  PROSPECTIVE REGISTRANTS CAN
REASONABLY EXPECT THAT REGISTRATION AND PAYMENT OF THE OCCUPATIONAL TAX
WILL SIGNIFICANTLY ENHANCE THE LIKELIHOOD OF THEIR PROSECUTION FOR
FUTURE ACTS, AND THAT IT WILL READILY PROVIDE EVIDENCE WHICH WILL
FACILITATE THEIR CONVICTIONS.  INDEED, THEY CAN REASONABLY FEAR THAT
REGISTRATION, AND ACQUISITION OF A WAGERING TAX STAMP, MAY SERVE AS
DECISIVE EVIDENCE THAT THEY HAVE IN FACT SUBSEQUENTLY VIOLATED STATE
GAMBLING PROHIBITIONS.  COMPARE ALA. CODE, TIT. 14, SECS. 302(8)-(10)
(1958); GA. CODE ANN. SEC. 26-6413 (SUPP. 1967).  INSUBSTANTIAL CLAIMS
OF THE PRIVILEGE AS TO ENTIRELY PROSPECTIVE ACTS MAY CERTAINLY BE
ASSERTED, BUT SUCH CLAIMS ARE NOT HERE, AND THEY NEED ONLY BE
CONSIDERED WHEN A LITIGANT HAS THE TEMERITY TO PURSUE THEM. 

WE CONCLUDE THAT NOTHING IN THE COURT'S OPINIONS IN KAHRIGER AND
LEWIS NOW SUFFICES TO PRECLUDE PETITIONER'S ASSERTION OF THE
CONSTITUTIONAL PRIVILEGE AS A DEFENSE TO THE INDICTMENTS UNDER WHICH HE
WAS CONVICTED.  TO THIS EXTENT KAHRIGER AND LEWIS ARE OVERRULED. 

        IV. 

WE MUST NEXT CONSIDER THE RELEVANCE IN THIS SITUATION OF THE
"REQUIRED RECORDS" DOCTRINE, SHAPIRO V. UNITED STATES, 335 U.S. 1.  IT
IS NECESSARY FIRST TO SUMMARIZE BRIEFLY THE CIRCUMSTANCES IN SHAPIRO. 
PETITIONER, A WHOLESALER OF FRUIT AND PRODUCE, WAS OBLIGED BY A
REGULATION ISSUED UNDER THE AUTHORITY OF THE EMERGENCY PRICE CONTROL
ACT TO KEEP AND "PRESERVE FOR EXAMINATION" VARIOUS RECORDS "OF THE SAME
KIND AS HE HAS CUSTOMARILY KEPT.  . . . "  MAXIMUM PRICE REGULATION
426, SEC. 14, 8 FED.REG.  9546, 9548-9549 (1943).  HE WAS SUBSEQUENTLY
DIRECTED BY AN ADMINISTRATIVE SUBPOENA TO PRODUCE CERTAIN OF THESE
RECORDS BEFORE ATTORNEYS OF THE OFFICE OF PRICE ADMINISTRATION. 
PETITIONER COMPLIED, BUT ASSERTED HIS CONSTITUTIONAL PRIVILEGE.  IN A
PROSECUTION FOR VIOLATIONS OF THE PRICE CONTROL ACT, PETITIONER URGED
THAT THE RECORDS HAD FACILITATED THE COLLECTION OF EVIDENCE AGAINST
HIM, AND CLAIMED IMMUNITY FROM PROSECUTION UNDER SEC; 202(G) OF THE
ACT, 56 STAT; 30.  PETITIONER WAS NONETHELESS CONVICTED, AND HIS
CONVICTION WAS AFFIRMED.  159 F.2D 890. 

ON CERTIORARI, THIS COURT HELD BOTH THAT SEC. 202(G) DID NOT CONFER
IMMUNITY UPON PETITIONER, AND THAT HE COULD NOT PROPERLY CLAIM THE
PROTECTION OF THE PRIVILEGE AS TO RECORDS WHICH HE WAS REQUIRED BY
ADMINISTRATIVE REGULATION TO PRESERVE.  ON THE SECOND QUESTION, THE
COURT RELIED UPON THE CASES WHICH HAVE HELD THAT A CUSTODIAN OF PUBLIC
RECORDS MAY NOT ASSERT THE PRIVILEGE AS TO THOSE RECORDS, AND
REITERATED A DICTUM IN WILSON V. UNITED STATES, 221 U.S. 361, 380,
SUGGESTING THAT "THE PRIVILEGE WHICH EXISTS AS TO PRIVATE PAPERS CANNOT
BE MAINTAINED IN RELATION TO 'RECORDS REQUIRED BY LAW TO BE KEPT IN
ORDER THAT THERE MAY BE SUITABLE INFORMATION OF TRANSACTIONS WHICH ARE
THE APPROPRIATE SUBJECTS OF GOVERNMENTAL REGULATION AND THE ENFORCEMENT
OF RESTRICTIONS VALIDLY ESTABLISHED.'"  /13/  335 U.S.,AT 33.  THE
COURT CONSIDERED THAT "IT CANNOT BE DOUBTED" THAT THE RECORDS IN
QUESTION HAD "PUBLIC ASPECTS," AND THUS HELD THAT PETITIONER, AS THEIR
CUSTODIAN, COULD NOT PROPERLY ASSERT THE PRIVILEGE AS TO THEM.  ID., AT
34. 

WE THINK THAT NEITHER SHAPIRO NOR THE CASES UPON WHICH IT RELIED ARE
APPLICABLE HERE.  /14/  COMPARE GENERALLY NOTE, REQUIRED INFORMATION
AND THE PRIVILEGE AGAINST SELF-INCRIMINATION, 65 COL.L.REV.  681; AND
MCKAY, SELF-INCRIMINATION AND THE NEW PRIVACY, 1967 SUP.CT.REV.  193,
214-217.  MOREOVER, WE FIND IT UNNECESSARY FOR PRESENT PURPOSES TO
PURSUE IN DETAIL THE QUESTION, LEFT UNANSWERED IN SHAPIRO, OF WHAT
"LIMITS . . . THE GOVERNMENT CANNOT CONSTITUTIONALLY EXCEED IN
REQUIRING THE KEEPING OF RECORDS.  . . . "  335 U.S.,AT 32.  IT IS
ENOUGH THAT THERE ARE SIGNIFICANT POINTS OF DIFFERENCE BETWEEN THE
SITUATIONS HERE AND IN SHAPIRO WHICH IN THIS INSTANCE PRECLUDE, UNDER
ANY FORMULATION, AN APPROPRIATE APPLICATION OF THE "REQUIRED RECORDS"
DOCTRINE. 

EACH OF THE THREE PRINCIPAL ELEMENTS OF THE DOCTRINE, AS IT IS
DESCRIBED IN SHAPIRO, IS ABSENT FROM THIS SITUATION.  FIRST, PETITIONER
MARCHETTI WAS NOT, BY THE PROVISIONS NOW AT ISSUE, OBLIGED TO KEEP AND
PRESERVE RECORDS "OF THE SAME KIND AS HE HAS CUSTOMARILY KEPT"; HE WAS
REQUIRED SIMPLY TO PROVIDE INFORMATION, UNRELATED TO ANY RECORDS WHICH
HE MAY HAVE MAINTAINED, ABOUT HIS WAGERING ACTIVITIES.  THIS
REQUIREMENT IS NOT SIGNIFICANTLY DIFFERENT FROM A DEMAND THAT HE
PROVIDE ORAL TESTIMONY.  COMPARE MCKAY, SUPRA, AT 221.  SECOND,
WHATEVER "PUBLIC ASPECTS" THERE WERE TO THE RECORDS AT ISSUE IN
SHAPIRO, THERE ARE NONE TO THE INFORMATION DEMANDED FROM MARCHETTI. 
THE GOVERNMENT'S ANXIETY TO OBTAIN INFORMATION KNOWN TO A PRIVATE
INDIVIDUAL DOES NOT WITHOUT MORE RENDER THAT INFORMATION PUBLIC; IF IT
DID, NO ROOM WOULD REMAIN FOR THE APPLICATION OF THE CONSTITUTIONAL
PRIVILEGE.  NOR DOES IT STAMP INFORMATION WITH A PUBLIC CHARACTER THAT
THE BOVERNMENT HAS FORMALIZED ITS DEMANDS IN THE ATTIRE OF A STATUTE;
IF THIS ALONE WERE SUFFICIENT, THE CONSTITUTIONAL PRIVILEGE COULD BE
ENTIRELY ABROGATED BY ANY ACT OF CONGRESS.  THIRD, THE REQUIREMENTS AT
ISSUE IN SHAPIRO WERE IMPOSED IN "AN ESSENTIALLY NON-CRIMINAL AND
REGULATORY AREA OF INQUIRY" WHILE THOSE HERE ARE DIRECTED TO A
"SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES."  CF.
ALBERTSON V. SACB, 382 U.S. 70, 79.  THE UNITED STATES' PRINCIPAL
INTEREST IS EVIDENTLY THE COLLECTION OF REVENUE, AND NOT THE PUNISHMENT
OF GAMBLERS, SEE UNITED STATES V. CALAMARO, 354 U.S. 351, 358; BUT THE
CHARACTERISTICS OF THE ACTIVITIES ABOUT WHICH INFORMATION IS SOUGHT,
AND THE COMPOSITION OF THE GROUPS TO WHICH INQUIRIES ARE MADE, READILY
DISTINGUISH THIS SITUATION FROM THAT IN SHAPIRO.  THERE IS NO NEED TO
EXPLORE FURTHER THE ELEMENTS AND LIMITATIONS OF SHAPIRO AND THE CASES
INVOLVING PUBLIC PAPERS; THESE POINTS OF DIFFERENCE IN COMBINATION
PRECLUDE ANY APPROPRIATE APPLICATION OF THOSE CASES TO THE PRESENT
ONE. 

        V. 

FINALLY, WE HAVE BEEN URGED BY THE UNITED STATES TO PERMIT CONT8NUED
ENFORCEMENT OF THE REGISTRATION AND OCCUPATIONAL TAX PROVISIONS,
DESPITE THE DEMANDS OF THE CONSTITUTIONAL PRIVILEGE, BY SHIELDING THE
PRIVILEGE'S CLAIMANTS THROUGH THE IMPOSITION OF RESTRICTIONS UPON THE
USE BY FEDERAL AND STATE AUTHORITIES OF INFORMATION OBTAINED AS A
CONSEQUENCE OF COMPLIANCE WITH THE WAGERING TAX REQUIREMENTS.  IT IS
SUGGESTED THAT THESE RESTRICTIONS MIGHT BE SIMILAR TO THOSE IMPOSED BY
THE COURT IN MURPHY V. WATERFRONT COMMISSION, 378 U.S. 52. 

THE CONSTITUTION OF COURSE OBLIGES THIS COURT TO GIVE FULL
RECOGNITION TO THE TAXING POWERS AND TO MEASURES REASONABLY INCIDENTAL
TO THEIR EXERCISE.  BUT WE ARE EQUALLY OBLIGED TO GIVE FULL EFFECT TO
THE CONSTITUTIONAL RESTRICTIONS WHICH ATTEND THE EXERCISE OF THOSE
POWERS.  WE DO NOT, AS WE HAVE SAID, DOUBT CONGRESS' POWER TO TAX
ACTIVITIES WHICH ARE, WHOLLY OR IN PART, UNLAWFUL.  NOR CAN IT BE
DOUBTED THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION MAY NOT PROPERLY
BE ASSERTED IF OTHER PROTECTION IS GRANTED WHICH "IS SO BROAD AS TO
HAVE THE SAME EXTENT IN SCOPE AND EFFECT" AS THE PRIVILEGE ITSELF. 
COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 585.  THE GOVERNMENT'S
SUGGESTION IS THUS IN PRINCIPLE AN ATTRACTIVE AND APPARENTLY PRACTICAL
RESOLUTION OF THE DIFFICULT PROBLEM BEFORE US.  COMPARE MANSFIELD, THE
ALBERTSON CASE:  CONFLICT BETWEEN THE PRIVILEGE AGAINST SELF
INCRIMINATION AND THE GOVERNMENT'S NEED FOR INFORMATION, 1966
SUP.CT.REV.  103, 159; AND MCKAY, SUPRA, AT 232.  NONETHELESS, WE THINK
THAT IT WOULD BE ENTIRELY INAPPROPRIATE IN THE CIRCUMSTANCES HERE FOR
THE COURT TO IMPOSE SUCH RESTRICTIONS. 

THE TERMS OF THE WAGERING TAX SYSTEM MAKE QUITE PLAIN THAT CONGRESS
INTENDED INFORMATION OBTAINED AS A CONSEQUENCE OF REGISTRATION AND
PAYMENT OF THE OCCUPATIONAL TAX TO BE PROVIDED TO INTERESTED
PROSECUTING AUTHORITIES.  SEE 26 U.S.C. 6107.  /15/  THIS HAS EVIDENTLY
BEEN THE CONSISTENT PRACTICE OF THE REVENUE SERVICE.  WE MUST THEREFORE
ASSUME THAT THE IMPOSITION OF USE-RESTRICTIONS WOULD DIRECTLY PRECLUDE
EFFECTUATION OF A SIGNIFICATN ELEMENT OF CONGRESS'  PURPOSES IN
ADOPTING THE WAGERING TAXES.  /16/  MOREOVER, THE IMPOSITION OF SUCH
RESTRICTIONS WOULD NECESSARILY OBLIGE STATE PROSECUTING AUTHORITIES TO
ESTABLISH IN EACH CASE THAT THEIR EVIDENCE WAS UNTAINTED BY ANY
CONNECTION WITH INFORMATION OBTAINED AS A CONSEQUENCE OF THE WAGERING
TAXES; /17/  THE FEDERAL REQUIREMENTS WOULD THUS BE PROTECTED ONLY AT
THE COST OF HAMPERING, PERHAPS SERIOUSLY, ENFORCEMENT OF STATE
PROHIBITIONS AGAINST GAMBLING.  WE CANNOT KNOW HOW CONGRESS WOULD
ASSESS THE COMPETING DEMANDS OF THE FEDERAL TREASURY AND OF STATE
GAMBLING PROHIBITIONS; WE ARE, HOWEVER, ENTIRELY CERTAIN THAT THE
CONSTITUTION HAS ENTRUSTED TO CONGRESS, AND NOT TO THIS COURT, THE TASK
OF STRIKING AN APPROPRIATE BALANCE AMONG SUCH VALUES.  /18/  WE
THEREFORE MUST DECIDE THAT IT WOULD BE IMPROPER FOR THE COURT TO IMPOSE
RESTRICTIONS OF THE KIND URGED BY THE UNITED STATES.              VI. 
WE ARE FULLY COGNIZANT OF THE IMPORTANCE FOR THE UNITED STATES'
VARIOUS FISCAL AND REGULATORY FUNCTIONS OF TIMELY AND ACCURATE
INFORMATION, COMPARE MANSFIELD, SUPRA, AND MELTZER, REQUIRED RECORDS,
THE MCCARRAN ACT, AND THE PRIVILEGE AGAINST SELF-INCRIMINATION, 18
U.CHI.L.REV.  687; BUT OTHER METHODS, ENTIRELY CONSISTENT WITH
CONSTITUTIONAL LIMITATIONS, EXIST BY WHICH CONGRESS MAY OBTAIN SUCH
INFORMATION.  SEE GENERALLY COUNSELMAN V. HITCHCOCK, SUPRA, AT 585;
COMPARE MURPHY V. WATERFRONT COMMISSION, SUPRA.  ACCORDINGLY, NOTHING
WE DO TODAY WILL PREVENT EITHER THE TAXATION OR THE REGULATION BY
CONGRESS OF ACTIVITIES OTHERWISE MADE UNLAWFUL BY STATE OR FEDERAL
STATUTES. 

NONETHELESS, WE CAN ONLY CONCLUDE, UNDER THE WAGERING TAX SYSTEM AS
PRESENTLY WRITTEN, THAT PETITIONER PROPERLY ASSERTED THE PRIVILEGE
AGAINST SELF-INCRIMINATION, AND THAT HIS ASSERTION SHOULD HAVE PROVIDED
A COMPLETE DEFENSE TO THIS PROSECUTION.  THIS DEFENSE SHOULD HAVE
REACHED BOTH THE SUBSTANTIVE COUNTS FOR FAILURE TO REGISTER AND TO PAY
THE OCCUPATIONAL TAX, AND THE COUNT FOR CONSPIRACY TO EVADE PAYMENT OF
THE TAX.  WE EMPHASIZE THAT WE DO NOT HOLD THAT THESE WAGERING TAX
PROVISIONS ARE AS SUCH CONSTITUTIONALLY IMPERMISSIBLE; WE HOLD ONLY
THAT THOSE WHO PROPERLY ASSERT THE CONSTITUTIONAL PRIVILEGE AS TO THESE
PROVISIONS MAY NOT BE CRIMINALLY PUNISHED FOR FAILURE TO COMPLY WITH
THEIR REQUIREMENTS.  IF, IN DIFFERENT CIRCUMSTANCES, A TAXPAYER IS NOT
CONFRONTED BY SUBSTANTIAL HAZARDS OF SELF-INCRIMINATION, OR IF HE IS
OTHERWISE OUTSIDE THE PRIVILEGE'S PROTECTION, NOTHING WE DECIDE TODAY
WOULD SHIELD HIM FROM THE VARIOUS PENALTIES PRESCRIBED BY THE WAGERING
TAX STATUTES. 

THE JUDGMENT OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  CERTIORARI WAS ORIGINALLY GRANTED IN COSTELLO V. UNITED STATES,
383 U.S. 942, TO CONSIDER THESE ISSUES.  UPON COSTELLO'S DEATH,
CERTIORARI WAS GRANTED IN THE PRESENT CASE.  385 U.S. 1000.  MARCHETTI
AND COSTELLO, WITH OTHERS, WERE CONVICTED AT THE SAME TRIAL OF
IDENTICAL OFFENSES, ARISING FROM THE SAME SERIES OF TRANSACTIONS. 
CERTIORARI BOTH HERE AND IN COSTELLO WAS LIMITED TO THE FOLLOWING
QUESTIONS:  "DO NOT THE FEDERAL WAGERING TAX STATUTES HERE INVOLVED
VIOLATE THE PETITIONER'S PRIVILEGE AGAINST SELF-INCRIMINATION
GUARANTEED BY THE FIFTH AMENDMENT?  SHOULD NOT THIS COURT, ESPECIALLY
IN VIEW OF ITS RECENT DECISION IN ALBERTSON V. SUBVERSIVE ACTIVITIES
CONTROL BOARD, 382 U.S. 70 (1965), OVERRULE UNITED STATES V. KAHRIGER,
345 U.S. 22 (1953), AND LEWIS V. UNITED STATES, 348 U.S. 419 (1955)?" 
AFTER ARGUMENT, THE CASE WAS RESTORED TO THE CALENDAR, AND SET FOR
REARGUMENT AT THE 1967 TERM.  388 U.S. 903.  COUNSEL WERE ASKED TO
ARGUE, IN ADDITION TO THE ORIGINAL QUESTIONS, THE FOLLOWING:  "(1) WHAT
RELEVANCE, IF ANY, HAS THE RQUIRED RECORDS DOCTRINE, SHAPIRO V. UNITED
STATES, 335 U.S. 1, TO THE VALIDITY UNDER THE FIFTH AMENDMENT OF THE
REGISTRATION AND SPECIAL OCCUPATIONAL TAX REQUIREMENTS OF 26 U.S.C.
4411, 4412?  (2) CAN AN OBLIGATION TO PAY THE SPECIAL OCCUPATIONAL TAX
REQUIRED BY 26 U.S.C 4411 BE SATISFIED WITHOUT FILING THE REGISTRATION
STATEMENT PROVIDED FOR BY 26 U.S.C. 4412?" 

/2/  A JULY 1963 REVISION OF FORM 11-C MODIFIED THE FORM OF CERTAIN
OF ITS QUESTIONS.  THE RECORD DOES NOT INDICATE WHICH VERSION OF THE
RETURN WAS AVAILABLE TO PETITIONER AT THE TIME OF THE OMISSIONS FOR
WHICH HE WAS CONVICTED.  THE MINOR VERBAL VARIATIONS BETWEEN THE TWO DO
NOT AFFECT THE RESULT WHICH WE REACH TODAY. 

/3/  THE TREASURY REGULATIONS PROVIDE THAT A STAMP, EVIDENCING
PAYMENT OF THE OCCUPATIONAL TAX, MAY NOT BE ISSUED UNLESS THE TAXPAYER
BOTH SUBMITS FORM 11-C AND TENDERS THE FULL AMOUNT OF THE TAX.  26 CFR
44.4901-1(C).  ACCORDINGLY, THE REVENUE SERVICE HAS REFUSED TO ACCEPT
THE $50 TAX UNLESS IT IS ACCOMPANIED BY THE COMPLETED REGISTRATION
FORM; AND IT HAS CONSISTENTLY BEEN UPHELD IN THAT PRACTICE.  SEE UNITED
STATES V. WHITING, 311 F.2D 191; UNITED STATES V. MUNGIOLE, 233 F.2D
204; COMBS V. SNYDER, 101 F.SUPP.  531, AFF'D, 342 U.S. 939.  THE
UNITED STATES HAS IN THIS CASE ACKNOWLEDGED THAT THE REGISTRATION AND
OCCUPATIONAL TAX PROVISIONS ARE NOT REALISTICALLY SEVERABLE.  BRIEF ON
REARGUMENT 37-41. 

/4/  IN HIS TRIAL TESTIMONY IN GROSSO V. UNITED STATES, DECIDED
HEREWITH, POST, P. 62, W. DEAN STRUBLE, TECHNICAL ADVISOR TO THE
DISTRICT DIRECTOR OF INTERNAL REVENUE, PITTSBURGH, PENNSYLVANIA,
DESCRIBED FORM 11-C AS FOLLOWS:  "A FORM 11-C SERVES TWO PURPOSES.  THE
FIRST IS AN APPLICATION FOR REGISTRY FOR A WAGERING TAX STAMP.  AFTER
THE APPLICATION IS PROPERLY FILED AND THE TAX PAID, AT THAT TIME THE
FORM 11-C BECOMES A SPECIAL TAX RETURN."  TRANSCRIPT OF RECORD 90. 

/5/  THE FOLLOWING ILLUSTRATE THE STATE GAMBLING AND WAGERING
STATUTES UNDER WHICH ONE ENGAGED IN ACTIVITIES TAXABLE UNDER THE
FEDERAL PROVISIONS AT ISSUE HERE MIGHT INCUR CRIMINAL PENALTIES.  ALA.
CODE, TIT. 14, C. 46 (1958); ALASKA LAWS, TIT. 65, C. 13 (1949); ARIZ.
REV. STAT. ANN. SEC. 13-438 (1956); ARK. STAT. ANN., TIT. 41, C. 20
(1947); CAL. PEN.  CODE SECS. 330-337A (1956); COLO. REV. STAT. ANN.,
C. 40, ART. 10 (1963); DEL. CODE ANN., TIT. 11, SECS. 665-669 (1953);
D.C. CODE ANN. SECS. 22-1504 TO 22-1511 (1967); FLA. STAT., C. 849
(1965); GA. CODE ANN., C. 26-64 (1953); HAWAII REV. LAWS, C. 288
(1955); IDAHO CODE ANN., TIT. 18, C. 38 (1948); ILL. REV. SGAT., C. 38,
ART. 28 (1965).  IND.  ANN. STAT., TIT. 10, C. 23 (1956); IOWA CODE, C.
726 (1966); KAN. STAT. ANN., C. 21, ART. 15 (1964); KY. REV. STAT. SEC.
436.200 (1962); LA. REV. STAT. SEC. 14:90 (1950); ME. REV. STAT. ANN.,
TIT. 17, C. 61 (1964); MD. ANN. CODE, ART. 27, SECS. 237-242 (1957);
MASS. GEN. LAWS ANN., C. 271 (1959); MICH. STAT. ANN. SEC. 28.533
(1954); MINN. STAT. 609.755 (1965); MISS.  CODE ANN. SECS. 2190-2202
(1942); MO. REV. STAT. SEC. 563.350 (1959); MONT. REV. CODES ANN., TIT.
94, C. 24 (1947); NEB. REV. STAT. SEC. 28-941 (1943); NEV. REV. STAT.
SECS. 293.603, 465.010 (1957); N.H. REV. STAT. ANN., C. 577 (1955);
N.J. REV. STAT., TIT. 2A, C. 112 (1953); N.M. STAT. ANN., C. 40A, ART.
19 (1953); N.Y. PEN.  LAW, ART 225 (1967); N.C. GEN. STAT. SECS 14-292
TO 14-295 (1953); N.D. CENT. CODE ANN., C. 12-23 (1959); OHIO REV. CODE
ANN., C. 2915 (1953); OKLA. STAT. ANN., TIT. 21, C. 38 (1958); ORE. 
REV.  STAT. SEC. 167.505 (1965); PA. STAT. ANN., TIT. 18, SECS. 4603
4607 (1963); R.I. GEN. LAWS ANN., TIT. 11, C. 19 (1956); S.C. CODE
ANN., TIT. 16, C. 8, ART. 1 (1962); S.D. CODE, TIT. 24, C. 24.01
(1939); TENN. CODE ANN., TIT. 39, C. 20 (1955); TEX. PEN.  CODE ANN.,
C. 6 (1942); UTAH CODE ANN., TIT. 76, C. 27 (1953); VT. STAT. ANN.,
TIT. 13, C. 43, SUBCH. 2 (1959); VA. CODE ANN., TIT. 18.1, C. 7, ART. 2
(1950); WASH. REV. CODE, TIT. 9, C. 9.47 (1956); W. VA. CODE ANN., C.
61, ART. 10 (1961); WIS. STAT., C. 945 (1965); WYO. STAT. ANN., TIT. 6,
C. 9, ART. 2 (1957).  THESE STATUTES OF COURSE VARY IN THEIR TERMS AND
SCOPE, BUT THESE VARIATIONS SCARCELY DETRACT FROM THE BREADTH OR
PREVALENCE OF THE PENALTIES WHICH IN COMBINATION THEY CREATE. 

/6/  NEW HAMPSHIRE CONDUCTS A STATE SWEEPSTAKES, BUT IMPOSES BROAD
CRIMINAL PENALTIES UPON PRIVATELY OPERATED LOTTERIES.  N.H. REV. STAT.
ANN., C. 577 (1955).  THE FOLLOWING ILLUSTRATE THE OTHER STATE STATUTES
WHICH IMPOSE CRIMINAL PENALTIES UPON LOTTERY ACTIVITIES WHICH WOULD BE
TAXABLE UNDER THESE FEDERAL STATUTES.  ALA. CODE, TIT. 14, C. 46
(1958); ALASKA LAWS SEC. 65-13-1 (1949); ARIZ. REV. STAT. ANN. SEC. 13
436 (1956); ARK. STAT. ANN. SEC. 41-2024 (1947); CAL. PEN.  CODE SECS.
319-326 (1956); COLO. REV. STAT. ANN., C. 40, ART. 16 (1963); DEL. CODE
ANN., TIT; 11, SECS. 661-664 (1953); D.C. CODE ANN. SEC. 22-1501
(1967); FLA. STAT. SEC. 849.09 (1965); GA. CODE ANN., C. 26-65 (1953);
HAWAII REV. LAWS, C. 288 (1955); IDAHO CODE ANN., TIT. 18, C. 49
(1948); ILL. REV. STAT., C. 38, ART. 28 (1965); IND. ANN. STAT., TIT.
10, C. 23 (1956); IOWA CODE SEC. 726.8 (1966); KAN. STAT. ANN., C. 21,
ART. 15 (1964); KY. REV. STAT. SEC. 436.360 (1962); LA. REV. STAT. SEC.
14:90 (1950); ME. REV. STAT. ANN., TIT. 17, C. 81 (1964); MD. ANN.
CODE, ART. 27, SEC. 356 (1957); MASS. GEN. LAWS ANN., C. 271 (1959);
MICH. STAT. ANN., SECS 28.064-28.608 (1954); MISS.  CODE ANN. SECS.
2270-2279 (1942); MO. REV. STAT. SEC. 563.430 (1959); MONT. REV. CODES
ANN., TIT. 94, C. 30 (1947); NEB. REV. STAT. SEC. 28-961 (1943); N.J.
REV. STAT., TIT. 2A, C. 121 (1953); N.M. STAT. ANN., C. 40A, ART 19
(1953); N.Y. PEN.  LAW, ART 225 (1967); N.C. GEN. STAT. SECS 14-289 TO
14-291 (1953); N.D. CENT. CODE ANN., C. 12-24 (1959); OHIO REV. CODE
ANN., C. 2915 (1953); OKLA. STAT. ANN., TIT. 21, C. 41 (1958); ORE. 
REV.  STAT. SEC. 167.405 (1965); PA. STAT. ANN., TIT. 18, SECS. 4601
4602 (1963); R.I. GEN. LAWS ANN., TIT. 11, C. 19 (1956); S.C. CODE
ANN., TIT. 16, C. 8, ART. 1 (1962); S.D. CODE, TIT. 24, C. 24.01
(1939); TENN. CODE ANN. SEC. 39-2017 (1955); TEX. PEN.  CODE ANN., ART.
654 (1952); UTAH CODE ANN., TIT. 76, C. 27 (1953); VT. STAT. ANN., TIT.
13, C. 43, SUBCH. 1 (1959); VA. CODE ANN., TIT. 18.1, C. 7, ART. 2
(1950); WASH. REV. CODE, TIT. 9, C. 9.59 (1956); W. VA. CODE ANN., C.
61, ART. 10 (1961); WIS. STAT., C. 945 (1965); WYO. STAT. ANN., TIT. 6,
C. 9, ART. 2 (1957). 

/7/  SEE, E.G., IRVINE V. CALIFORNIA, 347 U.S. 128; UNITED STATES V.
ZIZZO, 338 F.2D 577; COMMONWEALTH V. FIORINI, 202 PA.SUPER.  88, 195
A.2D 119; STATE V. CURRY, 92 OHIO APP. 1, 109 N.E.2D 298; STATE V.
REINHARDT, 229 LA. 673, 86 SO.2D 530; GRIGGS V. STATE, 37 ALA.APP. 
605, 73 SO.2D 382; MCCLARY V. STATE, 211 TENN. 46, 362 S.W.2D 450.  SEE
ALSO STATE V. BAUM, 230 LA. 247, 88 SO.2D 209. 

/8/  ONE STATE HAS GONE A STEP FURTHER TO FACILITATE THE ENFORCEMENT
OF ITS GAMBLING PROHIBITIONS THROUGH THE FEDERAL WAGERING TAX. 
ILLINOIS REQUIRES EACH HOLDER OF A WAGERING TAX STAMP TO REGISTER WITH
THE CLERK OF THE COUNTY IN WHICH HE RESIDES OR CONDUCTS ANY BUSINESS,
AND IMPOSES FINES AND IMPRISONMENT UPON THOSE WHO DO NOT.  ILL. REV.
STAT., C. 38, SEC. 28-4 (1965). 

/9/  THE METAPHOR IS TO BE FOUND IN THE OPINIONS BOTH OF LORD ELDON
IN PAXTON V. DOUGLAS, 19 VES.JR. 225, 227, AND OF CHIEF JUSTICE
MARSHALL IN UNITED STATES V. BURR, IN RE WILLIE, 25 FED.CAS.  38, 40
(NO. 14,692E). 

/10/  WE MUST NOTE THAT SOME STATES AND MUNICIPALITIES HAVE
UNDERTAKEN TO PUNISH COMPLAINCE WITH THE FEDERAL WAGERING TAX STATUTES
IN AN EVEN MORE DIRECT FASHION.  ALABAMA HAS CREATED A STATUTORY
PRESUMPTION THAT POSSESSORS OF FEDERAL WAGERING TAX STAMPS ARE IN
VIOLATION OF STATE LAW.  ALA. CODE, TIT. 14, SECS. 302(8)-(10) (1958). 
FLORIDA DOPTED A SIMILAR STATUTE, FLA. LAWS 1953, C. 28057, BUT IT WAS
SUBSEQUENTLY DECLARED UNCONSTITUTIONAL BY THE FLORIDA SUPREME COURT. 
JEFFERSON V. SWEAT, 76 SO.2D 494.  THE SUPREME COURT OF TENNESSEE HAS
UPHELD AN ORDINANCE ADOPTED BY THE CITY OF CHATTANOOGA WHICH MAKES
POSSESSION OF A FEDERAL TAX STATMP A MISDEMEANOR.  DEITCH V. CITY OF
CHATTANOOGA, 195 TEEN.  245, 258 S.W.2D 776.  SEE FOR A SIMILAR
PROVISION REV. ORD., KANSAS CITY, MISSOURI, SEC. 23.110 (1956); AND
KANSAS CITY V. LEE, 414 S.W.2D 251.  GEORGIA HAS RECENTLY PROVIDED BY
STATUTE THAT THE POSSESSION OR PURCHASE OF A FEDERAL WAGERING TAX STAMP
IS "PRIMA FACIE EVIDENCE OF GUILT" OF PROFESSIONAL GAMBLING.  GA. CODE
ANN. SEC. 26-6413 (SUPP. 1967).  SEE FOR A SIMILAR RULE MCCLARY V.
STATE, SUPRA, N. 7. 

/11/  HOFFMAN V. UNITED STATES, 341 U.S. 479, 487. 

/12/  WE PRESUME THAT THE COURT REFERRED TO THE FOLLOWING:  "(THERE
IS NO COMPULSORY SELF-CRIMINATION IN A RULE OF LAW WHICH MERELY
REQUIRES BEFOREHAND A FUTURE REPORT ON A CLASS OF FUTURE ACTS AMONG
WHICH A PARTICULAR ONE MAY OR MAY NOT IN FUTURE BE CRIMINAL AT THE
CHOICE OF THE PARTY REPORTING."  8 WIGMORE, SUPRA, AT 349.  BUT SEE
MORGAN, SUPRA, AT 37; AND MCKAY, SELF-INCRIMINATION AND THE NEW
PRIVACY, 1967 SUP.CT.REV.  193, 221. 

/13/  THE COURT IN FACT QUOTED FROM THE REITERATION OF THE WILSON
DICTUM INCLUDED IN DAVIS V. UNITED STATES, 328 U.S. 582, 590. 

/14/  THE UNITED STATES HAS URGED THAT THIS CASE IS NOT REACHED BY
SHAPIRO SIMPLY BECAUSE PETITIONER WAS REQUIRED TO SUBMIT REPORTS, AND
NOT TO MAINTAIN RECORDS.  INSOFAR AS THIS IS INTEDED TO SUGGEST THE
CRUCIAL ISSUE RESPECTING THE APPLICABILITY OF SHAPIRO IS THE METHOD BY
WHICH INFORMATION REACHES THE GOVERNMENT, WE ARE UNABLE TO ACCEPT THE
DISTINCTION.  WE PERCEIVE NO MEANINGFUL DIFFERENCE BETWEEN AN
OBLIGATION TO MAINTAIN RECORDS FOR INSPECTION, AND SUCH AN OBLIGATION
SUPPLEMENTED BY A REQUIREMENT THAT THOSE RECORDS BE FILED PERIODICALLY
WITH OFFICERS OF THE UNITED STATES.  WE BELIEVE, AS THE UNITED STATES
ITSELF ARGUED IN SHAPIRO, THAT "(REGULATIONS PERMIT RECORDS TO BE
RETAINED, RATHER THAN FILED, LARGELY FOR THE CONVENIENCE OF THE PERSONS
REGULATED."  BRIEF FOR THE UNITED STATES IN NO. 49, OCTOBER TERM 1947,
AT 21, N. 7. 

/15/  SECTION 6107 READS AS FOLLOWS: "IN THE PRINCIPAL INTERNAL
REVENUE OFFICE IN EACH INTERNAL REVENUE DISTRICT THERE SHALL BE KEPT,
FOR PUBLIC INSPECTION, AN ALPHABETICAL LIST OF THE NAMES OF ALL PERSONS
WHO HAVE PAID SPECIAL TAXES UNDER SUBTITLE D OR E WITHIN SUCH
DISTRICT.  SUCH LIST SHALL BE PREPARED AND KEPT PURSUANT TO REGULATIONS
PRESCRIBED BY THE SECRETARY OR HIS DELEGATE, AND SHALL CONTAIN THE
TIME, PLACE, AND BUSINESS FOR WHICH SUCH SPECIAL TAXES HAVE BEEN PAID,
AND UPON APPLICATION OF ANY PROSECUTING OFFICER OF ANY STATE, COUNTY,
OR MUNICIPALITY THERE SHALL BE FURNISHED TO HIM A CERTIFIED COPY
THEREOF, AS OF A PUBLIC RECORD, FOR WHICH A FEE OF $1 FOR EACH 100
WORDS OR FRACTION THEREOF IN THE COPY OR COPIES SO REQUESTED MAY BE
CHARGED."  THE SPECIAL TAXES TO WHICH THE SECTION REFERS INCLUDE THE
OCCUPATIONAL TAX IMPOSED BY 26 U.S.C. 4411.     /16/  THE REQUIREMENT
NOW EMBODIED IN SEC. 6107 WAS ADOPTED PRIOR TO THE SPECIAL OCCUPATIONAL
TAX ON WAGERING, BUT CONGRESS PLAINLY INDICATED WHEN IT ADOPTED THE
LATTER THAT IT UNDERSTOOD, AND WISHED, THAT STATE PROSECUTING
AUTHORITIES WOULD BE PROVIDED LISTS OF THOSE WHO HAD PAID THE WAGERING
TAX.  SEE H.R. REP. NO. 586, 82D CONG., 1ST SESS., 60; S. REP. NO. 781,
82D CONG., 1ST SESS., 118. 

/17/  THE COURT REQUIRED SUCH A SHOWING AS PART OF THE RESTRICTIONS
IMPOSED IN MURPHY, 378 U.S.,AT 79, N. 18.  THE UNITED STATES HAS
ACKNOWLEDGED THAT THIS WOULD BE NO LESS IMPERATIVE HERE.  BRIEF FOR THE
UNITED STATES 24-25. 

/18/  IT SHOULD BE EMPHASIZED THAT IT WOULD NOT SUFFICE HERE SIMPLY
TO SEVER SEC. 6107.  SEE 26 U.S.C. 7852(A).  CF. WARREN V. MAYOR OF
CHARLESTOWN, 2 GRAY 84, 99; CARTER V. CARTER COAL CO., 298 U.S. 238,
316.  WE WOULD BE REQUIRED NOT MERELY TO STRIKE OUT WORDS, BUT TO
INSERT WORDS THAT ARE NOT NOW IN THE STATUTE.  HERE, AS IN THE
ANALOGOUS CIRCUMSTANCES OF UNITED STATES V. REESE, 92 U.S. 214, "THIS
WOULD, TO SOME EXTENT, SUBSTITUTE THE JUDICIAL FOR THE LEGISLATIVE
DEPARTMENT OF THE GOVERNMENT.  . . . TO LIMIT THIS STATUTE IN THE
MANNER NOW ASKED FOR WOULD BE TO MAKE A NEW LAW, NOT TO ENFORCE AN OLD
ONE.  THIS IS NO PART OF OUR DUTY."  ID., AT 221. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

(FOR CONCURRING OPINION OF MR. JUSTICE BRENNAN, SEE POST, P. 72.) 

(FOR CONCURRING OPINION OF MR. JUSTICE STEWART, SEE POST, P. 76.) 

(FOR DISSENTING OPINION OF MR. CHIEF JUSTICE WARREN, SEE POST, P.
77.) 

JACOB D. ZELDES REARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF ON THE REARGUMENT WERE DAVID GOLDSTEIN, ELAINE S. AMENDOLA,
FRANCIS J. KING AND IRA B. GRUDBERG, AND ON THE ORIGINAL ARGUMENT
MESSRS.  GOLDSTEIN, KING AND GRUDBERG. 

FRANCIS X. BEYTAGH, JR., REARGUED THE CAUSE FOR THE UNITED STATES,
PRO HAC VICE.  WITH HIM ON THE BRIEF ON THE REARGUMENT WERE ACTING
SOLICITOR GENERAL SPRITZER, ASSISTANT ATTORNEY GENERAL VINSON, BEATRICE
ROSENBERG AND JEROME M. FEIT, AND ON THE ORIGINAL ARGUMENT SOLICITOR
GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON, MISS ROSENBERG AND
THEODORE GEORGE GILINSKY. 
..END :











GROSSO V. UNITED STATES, 390 U.S. 62 


       GROSSO V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT. 

        NO. 12.  ARGUED JANUARY 18, 1967.-- REARGUED OCTOBER 10-11,

           1967.-- DECIDED JANUARY 29, 1968. 


PETITIONER WAS CONVICTED FOR FAILURE TO PAY THE EXCISE TAX ON
WAGERING AND THE OCCUPATIONAL TAX IMPOSED, REPECTIVELY, BY 26 U.S.C.
4401 AND 4411 AND FOR CONSPIRACY TO DEFRAUD THE GOVERNMENT BY EVADING
PAYMENT OF BOTH TAXES.  IN ADDITION TO THE GENERAL STATUTORY AND
REGULATORY REQUIREMENTS DESCRIBED IN MARCHETTI V. UNITED STATES, ANTE,
P. 39, THOSE LIABLE FOR PAYMENT OF THE EXCISE TAX MUST SUBMIT MONTHLY
TO THE TAX AUTHORITIES ON A SPECIAL FORM, TO ACCOMPANY PAYMENT,
DETAILED INFORMATION CONCERNING THEIR WAGERING ACTIVITIES WHICH THE TAX
AUTHORITIES MAKE AVAILABLE TO PROSECUTING OFFICERS.  THE COURT OF
APPEALS AFFIRMED, REJECTING PETITIONER'S CONTENTION THAT THE CHARGES
RELATING TO THE EXCISE TAX VIOLATED HIS FIFTH AMENDMENT RIGHTS AGAINST
SELF-INCRIMINATION.  PETITIONER HAS NOT MADE A SIMILAR CONTENTION
CONCERNING HIS CONVICTION ON CHARGES INVOLVING THE SPECIAL OCCUPATIONAL
TAX.  HELD: 

1.  THE WAGERING EXCISE TAX PROVISIONS, WHICH, LIKE THE PROVISIONS
INVOLVED IN MARCHETTI V. UNITED STATES, SUPRA, WERE DIRECTED ALMOST
EXCLUSIVELY TO INDIVIDUALS INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES,
VIOLATED PETITIONER'S PRIVILEGE AGAINST SELF-INCRIMINATION SECURED BY
THE FIFTH AMENDMENT.  IBID.  PP. 64-69. 

2.  THE "REQUIRED RECORDS" DOCTRINE OF SHAPIRO V. UNITED STATES, 335
U.S. 1, CANNOT APPROPRIATELY BE APPLIED HERE.  MARCHETTI V. UNITED
STATES, SUPRA.  PP. 67-69. 

3.  RESTRICTIONS UPON THE USE BY PROSECUTING AUTHORITIES OF
INFORMATION OBTAINED AS A CONSEQUENCE OF PAYMENT OF THE WAGERING EXCISE
TAX WOULD BE INAPPROPRIATE WHERE THIS COURT HAS HELD IT IMPROPER TO
IMPOSE SIMILAR RESTRICTIONS WITH RESPECT TO "AN INTEGRAL PART" OF THE
SAME SYSTEM.  IBID.  P. 69. 

4.  SINCE PETITIONER DID NOT WAIVE THE PRIVILEGE AGAINST SELF
INCRIMINATION WITH REGARD TO THE CHARGES INVOLVING THE OCCUPATIONAL TAX
AND REVERSAL BY THE LOWER COURTS OF HIS CONVICTION THEREON WOULD BE
INEVITABLE IN THE LIGHT OF THIS CASE AND MARCHETTI, THE JUDGMENT OF
CONVICTION IN ITS ENTIRETY IS REVERSED BY THIS COURT.  PP. 71-72. 

358 F.2D 154, REVERSED.  4358 F.2D 154, REVERSED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA OF 15 COUNTS OF WILLFUL FAILURE TO PAY
THE EXCISE TAX IMPOSED ON WAGERING BY 26 U.S.C. 4401, FOUR COUNTS OF
WILLFUL FAILURE TO PAY THE SPECIAL OCCUPATIONAL TAX IMPOSED BY 26
U.S.C. 4411, AND ONE COUNT OF CONSPIRACY TO DEFRAUD THE UNITED STATES
BY EVADING PAYMENT OF BOTH TAXES.  18 U.S.C. 371.  PETITIONER MOVED
BEFORE TRIAL TO DISMISS THE COURTS WHICH CHARGED CONSPIRACY TO DEFRAUD
AND FAILURE TO PAY THE EXCISE TAX, ASSERTING THAT PAYMENT WOULD HAVE
OBLIGED HIM TO INCRIMINATE HIMSELF, IN VIOLATION OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION GUARAGNTEED BY THE FIFTH AMENDMENT.  HE
REITERATED THIS CONTENTION IN SUPPORT OF UNSUCCESSFUL MOTIONS FOR
ACQUITTAL AFTER VERDICT AND FOR A NEW TRIAL.  THE COURT OF APPEALS FOR
THE THIRD CIRCUIT AFFIRMED THE CONVICTION.  358 F.2D 154. 

PETITIONER DID NOT ASSERT BELOW, AND THEREFORE HAS NOT URGED HERE,
THAT HIS PRIVILEGE WAS VIOLATED BY REASON OF HIS CONVICTIONS FOR
CONSPIRACY AND FOR FAILURE TO PAY THE SPECIAL OCCUPATIONAL TAX.  HE HAS
CONTENDED ONLY THAT PAYMENT OF THE EXCISE TAX WOULD HAVE REQUIRED HIM
TO INCRIMINATE HIMSELF, THAT HE THEREFORE MAY NOT PROPERLY BE
PROSECUTED FOR WILLFUL FAILURE TO PAY THE TAX OR FOR CONSPIRACY TO
EVADE ITS PAYMENT, AND THAT CONDUCT OF THE TRIAL COURT AFTER SUBMISSION
OF THE CASE TO THE JURY DENIED HIM A FAIR TRIAL.  WE GRANTED
CERTIORARI, 385 U.S. 810, AND THE CASE WAS ARGUED WITH MARCHETTI V.
UNITED STATES, DECIDED TODAY, ANTE, P. 39.  /1/  FOR REASONS WHICH
FOLLOW, WE REVERSE. 

        I. 

WE TURN FIRST TO PETITIONER'S CONTENTION THAT PAYMENT OF THE
WAGERING EXCISE TAX WOULD HAVE COMPELLED HIM TO INCRIMINATE HIMSELF. 
WE HAVE SUMMARIZED IN MARCHETTI, SUPRA, THE VARIOUS STATE AND FEDERAL
PENALTIES WHICH HAVE BEEN IMPOSED UPON WAGERING.  IT IS ENOUGH NOW TO
REITERATE THAT PENNSYLVANIA, IN WHICH PETITIONER ALLEGEDLY ACCEPTED
WAGERS, HAS ADOPTED A COMPREHENSIVE STATUTORY SYSTEM FOR THE PUNISHMENT
OF GAMBLING AND ANCILLARY ACTIVITIES.  PA. STAT. ANN., TIT. 18 SECS.
4601-4607 (1963).  THESE PENALTIES, IN COMBINATION WITH THE FEDERAL
STATUTES DESCRIBED IN MARCHETTI, PLACE PETITIONER ENTIRELY WITHIN "AN
AREA PERMEATED WITH CRIMINAL STATUTES," WHERE HE IS "INHERENTLY SUSPECT
OF CRIMINAL ACTIVITIES."  ALBERTSON V. SACB, 382 U.S. 70, 79.  THE
ISSUES HERE ARE THEREFORE WHETHER PAYMENT OF THE EXCISE TAX WOULD HAVE
PROVIDED INFROMATION INCRIMINATING TO PETITIONER, AND, IF IT WOULD HAVE
DONE SO, WHETHER PETITIONER IS OTHERWISE PREVENTED FROM ASSERTING THE
CONSTITUTIONAL PRIVILEGE. 

THE STATUTORY SCHEME BY WHICH WAGERING IS TAXES IS DESCRIBED IN
MARCHETTI, SUPRA.  TWO ADDITIONAL OBSERVATIONS ARE, HOWEVER, REQUIRED
IN ORDER TO ASSESS FULLY THE HAZARDS OF SELF-INCRIMINATION CREATED BY
THE WAGERING EXCISE TAX.  FIRST, THOSE LIABLE FOR PAYMENT OF THAT TAX
ARE REQUIRED TO SUBMIT EACH MONTH INTERNAL REVENUE SERVICE FORM 730. 
TREAS. REG. SEC. 44.6011(A)-1(A).  THE RETURN IS EXPRESSLY DESIGNED FOR
THE USE ONLY OF THOSE ENGAGED IN THE WAGERING BUSINESS; ITS SUBMISSION,
AND THE REPLIES DEMANDED BY EACH OF ITS QUESTIONS, EVIDENCE IN THE MOST
DIRECT FASHION THE FACT OF THE TAXPAYER'S WAGERING ACTIVITIES. 
ALTHOUGH FAILURES TO PAY THE EXCISE TAX AND TO FILE A RETURN ARE
SEPARATELY PUNISHABLE UNDER 26 U.S.C. 7203, THE TWO OBLIGATIONS MUST BE
CONSIDERED INSEPARABLE FOR PURPOSES OF MEASURING THE HAZARDS OF SELF
INCRIMINATION WHICH MIGHT STEM FROM PAYMENT OF THE EXCISE TAX.  NOTHING
IN THE PERTINENT STATUTES OR REGULATIONS CONTEMPLATES PAYMENT OF THE
TAX WITHOUT SUBMISSION OF THE RETURN, /2/  AND WE ARE INFORMED BY THE
UNITED STATES THAT IF THE RETURN DOES NOT ACCOMPANY THE TAX PAYMENT,
"THE MONEY IS NOT ACCEPTED."  BRIEF FOR THE UNITED STATES ON REARGUMENT
39, N. 35.  WE MUST CONCLUDE THAT HERE, AS IN ALBERTSON, THE VALIDITY
UNDER THE CONSTITUTION OF CRIMINAL PROSECUTIONS FOR WILLFUL FAILURE TO
PAY THE EXCISE TAX MAY PROPERLY BE DETERMINED ONLY AFTER ASSESSMENT OF
THE HAZARDS OF INCRIMINATION WHICH WOULD RESULT FROM "LITERAL AND FULL
COMPLIANCE" WITH ALL THE STATUTORY REQUIREMENTS.  382 U.S.,AT 78. 

SECOND, ALTHOUGH THERE IS NO STATUTORY INSTRUCTION, AS THERE IS FOR
THE OCCUPATIONAL TAX, THAT STATE AND LOCAL PROSECUTING OFFICERS BE
PROVIDED LISTINGS OF THOSE WHO HAVE PAID THE EXCISE TAX, NEITHER HAS
CONGRESS IMPOSED EXPLICIT RESTRICTIONS UPON THE USE OF INFORMATION
OBTAINED AS A CONSEQUENCE OF PAYMENT OF THE TAX.  MOREOVER, IT APPEARS
THAT THE REVENUE SERVICE, EVIDENTLY ACTING UNDER THE AUTHORITY OF
CERTAIN GENERAL STATUTORY PROVISIONS, /3/  HAS UNDERTAKEN TO TENDER
THIS INFORMATION TO INTERESTED PROSECUTING AUTHORITIES.  /4/  WE CAN
ONLY CONCLUDE THAT THOSE LIABLE FOR PAYMENT OF THE EXCISE TAX
REASONABLY MAY EXPECT THAT INFORMATION OBTAINABLE FROM ITS PAYMENT, OR
FROM SUBMISSION OF FORM 730, WILL ULTIMATELY BE PROFFERED TO STATE AND
FEDERAL PROSECUTING OFFICERS. 

IN THESE CIRCUMSTANCES, IT WOULD BE IMPOSSIBLE TO SAY THAT THE
HAZARDS OF INCRIMINATION WHICH STEM FROM THE OBLIGATION TO PAY THE
EXCISE TAX AND TO FILE FORM 730 ARE "IMAGINARY AND UNSUBSTANTIAL." 
REG. V. BOYES, 1 B. & S. 311, 330; BROWN V. WALKER, 161 U.S. 591, 599
600.  THE CRIMINAL PENALTIES FOR WAGERING WITH WHICH PETITIONER IS
THREATENED ARE SCARCELY "REMOTE POSSIBILITIES OUT OF THE ORDINARY
COURSE OF LAW," HEIKE V. UNITED STATES, 227 U.S. 131, 144; YET HE IS
OBLIGED, ON PAIN OF CRIMINAL PROSECTUION, TO PROVIDE INFORMATION WHICH
WOULD READILY INCRIMINATE HIM, AND WHICH HE MAY REASONABLY EXPECT WOULD
BE PROVIDED TO PROSECUTING AUTHORITIES.  THESE HAZARDS OF INCRIMINATION
CAN ONLY BE CHARACTERIZED AS "REAL AND APPRECIABLE."  REG. V. BOYES,
SUPRA, AT 330; BROWN V. WALKER, SUPRA, AT 599-600.  MOREOVER, UNLIKE
THE INCOME TAX RETURN AT ISSUE IN UNITED STATES V. SULLIVAN, 274 U.S.
259, PETITIONER'S SUBMISSION OF AN EXCISE TAX PAYMENT, AND HIS REPLIES
TO THE QUESTIONS ON THE ATTENDANT RETURN, WOULD DIRECTLY AND
UNAVOIDABLY HAVE SERVED TO INCRIMINATE HIM; HIS CLAIM OF PRIVILEGE AS
TO THE ENTIRE TAX PAYMENT PROCEDURE WAS THEREFORE NEITHER "EXTREME" NOR
"EXTRAVAGANT."  COMPARE, ID., AT 263. 

WE ARE THUS OBLIGED TO INQUIRE WHETHER PETITIONER IS OTHERWISE
FORECLOSED FROM ASSERTING THE CONSTITUTIONAL PRIVILEGE.  FOR REASONS
INDICATED IN MARCHETTI, SUPRA, WE HAVE FOUND N THING IN UNITED STATES
V. KAHRIGER, 345 U.S. 22, OR LEWIS V. UNITED STATES, 348 U.S. 419,
WHICH NOW WARRANTS THE EXCLUSION OF THIS SITUATION FROM THE PRIVILEGE'S
PROTECTION.  /5/  IT NEED ONLY BE ADDED THAT THE REQUIREMENTS
ASSOCIATED WITH THE EXCISE TAX ARE DIRECTED WHOLLY TO PAST AND PRESENT
WAGERING ACTIVITIES; THEY LACK EVEN THE ILLUSORY PROSPECTIVITY WHICH
CHARACTERIZES THE SPECIAL OCCUPATIONAL TAX AND REGISTRATION
REQUIREMENTS. 

SIMILARLY, WE HAVE CONCLUDED THAT THE "REQUIRED RECORDS" DOCTRINE,
SHAPIRO V. UNITED STATES, 335 U.S. 1, CANNOT BE APPROPRIATELY APPLIED
TO THESE CIRCUMSTANCES.  SEE GENERALLY MARCHETTI V. UNITED STATES,
SUPRA.  THE PREMISES OF THE DOCTRINE, AS IT IS DESCRIBED IN SHAPIRO,
ARE EVIDENTLY THREE:  FIRST, THE PURPOSES OF THE UNITED STATES' INQUIRY
MUST BE ESSENTIALLY REGULATORY; SECOND, INFORMATION IS TO BE OBTAINED
BY REQUIRING THE PRESERVATION OF RECORDS OF A KIND WHICH THE REGULATED
PARTY HAS CUSTOMARILY KEPT; AND THIRD, THE RECORDS THEMSELVES MUST HAVE
ASSUMED "PUBLIC ASPECTS" WHICH RENDER THEM AT LEAST ANALOGOUS TO PUBLIC
DOCUMENTS.  THERE IS NO NEED FOR PRESENT PURPOSES TO EXAMINE THE
RELATIVE SIGNIFICANCE OF THESE THREE FACTORS, OR TO UNDERTAKE TO DEFINE
MORE SPECIFICALLY THEIR INCIDENTS, FOR BOTH THE FIRST AND THIRD FACTORS
ARE PLAINLY ABSENT FROM THIS CASE. 

HERE, AS IN MARCHETTI, THE STATUTORY OBLIGATIONS ARE DIRECTED ALMOST
EXCLUSIVELY TO INDIVIDUALS INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES. 
THE PRINCIPAL INTEREST OF THE UNITED STATES MUST BE ASSUMED TO BE THE
COLLECTION OF REVENUE, AND NOT THE PROSECUTION OF GAMBLERS, UNITED
STATES V. CALAMARO, 354 U.S. 351, 358; BUT WE CANNOT IGNORE EITHER THE
CHARACTERISTICS OF THE ACTIVITIES ABOUT WHICH INFORMATION IS SOUGHT, OR
THE COMPOSITION OF THE GROUP TO WHICH THE INQUIRIES ARE MADE.  THESE
COLLATERAL CIRCUMSTANCES, IN COMBINATION WITH CONGRESS' APPARENT WISH
THAT ANY INFORMATION OBTAINED AS A CONSEQUENCE OF THE WAGERING TAXES BE
MADE AVAILABLE TO PROSECUTING AUTHORITIES, READILY SUFFICE TO
DISTINGUISH THESE REQUIREMENTS FROM THOSE AT ISSUE IN SHAPIRO. 
MOREOVER, THE INFORMATION DEMANDED HERE LACKS EVERY CHARACTERISTIC OF A
PUBLIC DOCUMENT.  NO DOUBT IT IS DESIRED BY THE UNITED STATES, BUT WE
HAVE CONCLUDED, FOR REASONS INDICATED IN MARCHETTI, THAT THIS ALONE
DOES NOT RENDER INFORMATION "PUBLIC," AND THUS DOES NOT DEPRIVE IT OF
CONSTITUTIONAL PROTECTION. 

WE MUST NOTE THAT THE PERTINENT TREASURY REGULATIONS PROVIDE THAT
THE REPLIES TO THE QUESTIONS INCLUDED ON FORM 730 ARE TO BE COMPILED
EACH MONTH "FROM THE DAILY RECORDS REQUIRED BY SECS. 44.4403-1 AND
44.6001-1."  TREAS. REG. SEC. 44.6011(A)-1(A).  IT MIGHT THEREFORE BE
ARGUED THAT FORM 730 IS MERELY A MONTHLY ABSTRACT OF RECORDS ESENTIALLY
SIMILAR TO THOSE REQUIRED TO BE PRESERVED BY THE REGULATIONS IN
SHAPIRO.  THE DIFFICULTIES WITH THIS ARGUMENT ARE TWO.  FIRST, IT IS
SCARCELY PLAIN THAT THE RECORDS REQUIRED HERE ARE "OF THE SAME KIND
(THE TAXPAYER) HAS CUSTOMARILY KEPT,"  335 U.S.,AT 5, N. 3.  SECOND,
AND MORE IMPORTANT, THERE ARE, AS WE HAVE INDICATED, OTHER POINTS OF
SIGNIFICANT DISSIMILARITY BETWEEN THIS SITUATION AND THAT IN SHAPIRO. 
WE HAVE CONCLUDED THAT IN COMBINATION THESE POINTS OF DIFFERENCE
PRECLUDE ANY APPROPRIATE APPLICATION TO THESE CIRCUMSTANCES OF THE
"REQUIRED RECORDS" DOCTRINE. 

FINALLY, AS IN MARCHETTI, WE HAVE BEEN URGED BY THE UNITED STATES TO
PERMIT CONTINUED ENFORCEMENT OF THE WAGERING EXCISE TAX REQUIREMENTS BY
IMPOSING RESTRICTIONS UPON THE USE BY STATE AND FEDERAL AUTHORITIES OF
INFORMATION OBTAINED AS A CONSEQUENCE OF PAYMENT OF THE TAX.  WE
RECOGNIZE THAT SEC. 6107 (SEE MARCHETTI, SUPRA, AT 59, N. 15) IS NOT BY
ITS TERMS APPLICABLE TO THE EXCISE TAX, AND THAT THERE IS NO SIMILAR
STATUTORY OBLIGATION THAT THE COMMISSIONER PROVIDE PROSECUTORS WITH
LISTINGS OF THOSE WHO HAVE PAID THE EXCISE TAX.  NONETHELESS, IT WOULD
BE INAPPROPRIATE TO IMPOSE SUCH RESTRICTIONS UPON ONE PORTION OF A
STATUTORY SYSTEM, WHEN WE HAVE CONCLUDED THAT TI WOULD BE IMPORPER, FOR
REASONS DISCUSSED IN MARCHETTI, TO DO SO UPON "AN INTEGRAL PART"  /6/
OF THE SAME SYSTEM.  WE THEREFORE DECLINE TO IMPOSE THE RESTRICTIONS
URGED BY THE UNITED STATES. 

        II. 

THERE REMAIN FOR DISPOSITION THE SUBSTANTIVE COUNTS FOR WILLFUL
FAILURE TO PAY THE OCCUPATIONAL TAX, AND THE COUNT FOR CONSPIRACY TO
DEFRAUD.  /7/  THE LATTER WAS BOTTOMED ON ALLEGATIONS THAT PETITIONER
HAD CONSPIRED TO EVADE PAYMENT BOTH OF THE EXCISE TAX AND OF THE
OCCUPATIONAL TAX.  PETITIONER HAS CONSISTENTLY CONTENDED THAT THE
CONSTITUTIONAL PRIVLEGE SHOULD HAVE PREVENTED HIS CONVICTION ON THE
CONSPIRACY COUNT, EVIDENTLY ON THE BASIS THAT, INSOFAR AS IT IS FOUNDED
ON HIS FAILURE TO PAY THE EXCISE TAX, THIS COUNT RAISES QUESTIONS
IDENTICAL WITH THOSE PRESENTED BY THE SUBSTANTIVE COUNTS FOR FAILURE TO
PAY THAT TAX.  WE AGREE, AND CONCLUDE THAT A TAXPAYER MAY NOT BE
CONVICTED OF CONSPIRACY TO EVADE PAYMENT OF THE TAX, IF THE
CONSTITUTIONAL PRIVILEGE WOULD PROPERLY PREVENT HIS CONVICTION FOR
WILLFUL FAILURE TO PAY IT. CF. MARCHETTI V. UNITED STATES, SUPRA, AT 60
61. 

PETITIONER HAS NOT, HOWEVER, ASSERTED A CLAIM OF PRIVILEGE EITHER AS
TO THE COUNTS WHICH CHARGED WILLFUL FAILURE TO PAY THE OCCUPATIONAL
TAX, OR AS TO THE ALLEGATION THAT HE CONSPIRED TO EVADE PAYMENT OF THE
OCCUPATIONAL TAX.  /8/  GIVEN THE DECISIONS OF THIS COURT IN KAHRIGER
AND LEWIS, SUPRA, WHICH WERE ON THE BOOKS AT THE TIME OF PETITIONER'S
TRIAL, AND LEFT UNTOUCHED BY ALBERTSON V. SACB, SUPRA, WE ARE UNABLE TO
VIEW HIS FAILURE TO PRESENT THIS ISSUE AS AN EFFECTIVE WAIVER OF THE
CONSTITUTIONAL PRIVILEGE.  BY THE SAME TOKEN, WE DO NOT THINK THAT WE
CAN WELL REACH THESE COUNTS ON THE THEORY OF "PLAIN ERROR." 

IT MIGHT, THEREFORE, BE THOUGHT THAT THE PROPER DISPOSITION OF THE
SUBSTANTIVE OCCUPATIONAL TAX COUNTS, AND OF THE PORTION OF THE
CONSPIRACY COUNT CONCERNED WITH THE OCCUPATIONAL TAX, WOULD BE TO
VACATE, RATHER THAN TO REVERSE, THE JUDGMENTS OF CONVICTION, AND TO
RETURN THE CASE TO THE LOWER COURTS FOR FURTHER PROCEEDINGS CONSISTENT
WITH OUR OPINIONS IN THIS CASE AND IN MARCHETTI. 

WE THINK, HOWEVER, THAT A DIFFERENT COURSE IS INDICATED.  UNDER 28
U.S.C. 2106 /9/  WE HAVE POWER TO DISPOSE OF THIS CASE "AS MAY BE JUST
UNDER THE CIRCUMSTANCES."  SEE YATES V. UNITED STATES, 354 U.S. 298,
327-331.  SINCE THE RECORD IS BARREN OF ANY EVIDENCE ON WHICH A FINDING
OF WAIVER OF THE PRIVILEGE AGAINST SELF-INCRIMINATION MIGHT PROPERLY BE
PREDICATED, AND SINCE, ABSENT SUCH A WAIVER, REVERSAL OF THE CONVICTION
WOULD BE INEVITABLE IN LIGHT OF OUR HOLDINGS TODAY IN THIS CASE AND IN
MARCHETTI, WE CONSIDER THAT THE ENTIRE CASE SHOULD NOW BE FINALLY
DISPOSED OF AT THIS LEVEL.  IN THE SPECIAL CIRCUMSTANCES PRESENTED,
THIS COURSE SEEMS TO US TO BE DICTATED BY CONSIDERATIONS OF SOUND
JUDICIAL ADMINISTRATION, IN ORDER TO OBVIATE FURTHER AND ENTIRELY
UNNECESSARY PROCEEDINGS BELOW.  /10/  CF. YATES V. UNITED STATES,
SUPRA.     ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED IN ITS ENTIRETY. 

              IT IS SO ORDERED. 

/1/  AFTER ARGUMENT, THE CASE WAS RETURNED TO THE CALENDAR, AND SET
FOR REARGUMENT AT THE 1967 TERM, AGAIN WITH MARCHETTI, SUPRA.  388 U.S.
904.  COUNSEL WERE ASKED TO ARGUE, IN ADDITION TO THE ORIGINAL
QUESTIONS, THE FOLLOWING:  "(1) WHAT RELEVANCE, IF ANY, HAS THE
REQUIRED RECORDS DOCTRINE, SHAPIRO V. UNITED STATES, 335 U.S. 1, TO THE
VALIDITY UNDER THE FIFTH AMENDMENT OF THE OBLIGATION TO PAY THE
WAGERING EXCISE TAX IMPOSED BY 26 U.S.C. 4401?  (2) IS SATISFACTION OF
AN OBLIGATION TO PAY A WAGERING EXCISE TAX IMPOSED BY 26 U.S.C. 4401
CONDITIONED UPON THE FILING OF A RETURN REQUIRED UNDER 26 U.S.C. 6011
AND PERTINENT REGULATIONS?  IF IT IS NOT, WHAT INFORMATION, IF ANY,
MUST ACCOMPANY THE PAYMENT OF A WAGERING EXCISE TAX OBLIGATION IN ORDER
TO EXTINGUISH THE TAXPAYER'S LIABILITY FOR THAT OBLIGATION? 

/2/  INDEED, SO FAR AS THE PERTINENT MATERIALS CAN BE SAID TO
REFLECT ANY POSITION, IT IS THAT A RETURN MUST ACCOMPANY A TAX
PAYMENT.  SEE 26 U.S.C. 6011; TREAS. REG. 44.6011(A)-1(A). 

/3/  THE UNITED STATES HAS SUGGESTED THAT THE COMMISSIONER HAS
AUTHORITY TO MAKE INFORMATION OBTAINED AS A RESULT OF THE EXCISE TAX
AVAILABLE TO PROSECUTING OFFICERS UNDER 16 U.S.C. 6103, 5 U.S.C. 22,
1002(C), AND TREAS. REG. SECS. 601.702(A)(3) AND (D).  BRIEF FOR THE
UNITED STATES ON THE ORIGINAL ARGUMENT, P. 14, N. 10.  BUT SEE
TRANSCRIPT OF RECORD 101-102. 

/4/  SEE STATE V. MILLS, 229 LA. 758, 86 SO.2D 895; STATE V. BAUM,
230 LA. 247, 88 SO.2D 209; BOYNTON V. STATE, 75 SO.2D 211, 213; UNITED
STATES V. WHITING, 311 F.2D 191, 193.  AND SEE CAPLIN, THE GAMBLING
BUSINESS AND FEDERAL TAXES, 8 CRIME & DELIN.  371, 372.  FURTHER, WE
NOTE THAT THE UNITED STATES HAS ACKNOWLEDGED THE "LIMITED AVAILABILITY"
OF THE EXCISE TAX RETURNS, "IN CERTAIN CIRCUMSTANCES," TO STATE AND
LOCAL OFFICIALS.  BRIEF ON REARGUMENT 33, N. 30. 

/5/  IT IS USEFUL TO NOTE THAT THE VALIDILY UNDER THE FIFTH
AMENDMENT OF THE WAGERING EXCISE TAX WAS NOT AT ISSUE IN EITHER
KAHRIGER OR LEWIS; LEWIS INVOLVED AN INFORMATION WHICH CHARGED A
WILLFUL FAILURE TO PAY THE OCCUPATIONAL TAX, AND KAHRIGER AN
INFORMATION WHICH CHARGED WILLFUL FAILURES BOTH TO REGISTER AND TO PAY
THE OCCUPATIONAL TAX. 

/6/  H.R. REP. NO. 586, 82D CONG., 1ST SESS., 60. 

/7/  SECTION 4411 PROVIDES THAT THE OCCUPATIONAL TAX MUST BE PAID
"BY EACH PERSON WHO IS LIABLE FOR TAX UNDER SECTION 4401" AND BY EACH
PERSON WHO RECEIVES WAGERS FOR ONE LIABLE UNDER SEC. 4401.  IT MIGHT
THEREFORE BE ARGUED THAT SINCE PETITIONER IS ENTITLED TO CLAIM THE
CONSTITUTIONAL PRIVILEGE IN DEFENSE OF A PROSECUTION FOR WILLFUL
FAILURE TO PAY THE EXCISE TAX, HE IS THEREBY FREED FROM LIABILITY FOR
THE OCCUPATIONAL TAX.  WE CANNOT ACCEPT SUCH AN ARGUMENT.  WE DO NOT
HOLD TODAY EITHER THAT THE EXCISE TAX IS AS SUCH CONSTITUTIONALLY
IMPERMISSIBLE, OR THAT A PROPER CLAIM OF PRIVILEGE EXTINGUISHES
LIABILITY FOR TAXATION; WE HOLD ONLY THAT SUCH A CLAIM OF PRIVILEGE
PRECLUDES A CRIMINAL CONVICTION PREMISED ON FAILURE TO PAY THE TAX. 

/8/  IT SHOULD BE NOTED THAT PETITIONER'S TRIAL COUNSEL DID ONCE
ASSERT, IN COLLOQUY WITH THE TRIAL JUDGE, THAT "WE CONTENDED AND HAVE
ALWAYS CONTENDED-- AND IF REQUIRED TO GO ON APPEAL WILL CONTINUE TO
CONTEND-- THAT THE REQUIREMENTS OF THIS ACT IN REQUIRING YOU TO PAY
THIS EXCISE TAX AND TAKE OUT THE STAMP ARE A VIOLATION OF THE PRIVILEGE
AGAINST SELF INCRIMINATION."  THE COURT THEN INQUIRED, "YOU ARE RAISING
THE CONSTITUTIONAL QUESTION OF THE VALIDITY OF THE LAW?"  PETITIONER'S
COUNSEL REPLIED, "THAT IS RIGHT."  TRANSCRIPT OF RECORD 33.  PETITIONER
DID NOT, HOWEVER, CHALLENGE HIS OBLIGATION TO PAY THE OCCUPATIONAL TAX
EITHER IN ANY OF HIS VARIOUS MOTIONS OR IN ANY OF HIS OTHER ARGUMENTS,
HERE OR IN THE COURTS BELOW. 

/9/  SECTION 2106 PROVIDES THAT "THE SUPREME COURT . . . MAY AFFIRM,
MODIFY, VACATE, SET ASIDE OR REVERSE ANY JUDGMENT, DECREE, OR ORDER OF
A COURT LAWFULLY BROUGHT BEFORE IT FOR REVIEW, AND MAY REMAND THE CAUSE
AND DIRECT THE ENTRY OF SUCH APPROPRIATE JUDGMENT, DECREE, OR ORDER, OR
REQUIRE SUCH FURTHER PROCEEDINGS TO BE HAD AS MAY BE JUST UNDER THE
CIRCUMSTANCES." 

/10/  IN LIGHT OF THIS DISPOSITION, WE FIND IT UNNECESSARY TO REACH
PETITIONER'S ALTERNATIVE CONTENTION, THAT CONDUCT OF THE TRIAL JUDGE
AFTER SUBMISSION OF THE CASE TO THE JURY PREVENTED A FAIR TRIAL. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BRENNAN, CONCURRING.  /1A/ 

I JOIN THE OPINIONS OF THE COURT IN THESE CASES.  I WRITE ONLY TO
EMPHASIZE WHY, IN MY VIEW, NOTHING WE DECIDE OR SAY TODAY IN ANY WISE
IMPAIRS OR MODIFIES UNITED STATES V. SULLIVAN, 274 U.S. 259, AND
SHAPIRO V. UNITED STATES, 335 U.S. 1. 

THE PRIVILEGE AGAINST SELF-INCRIMINATION DOES NOT BAR THE GOVERNMENT
FROM ESTABLISHING EVERY PROGRAM OR SCHEME FEATURED BY PROVISIONS
DESIGNED TO SECURE INFORMATION FROM CITIZENS TO ACCOMPLISH PROPER
LEGISLATIVE PURPOSES.  CONGRESS IS ASSUREDLY EMPOWERED TO CONSTRUCT A
STATUTORY SCHEME WHICH EITHER IS GENERAL ENOUGH TO AVOID CONFLICT WITH
THE PRIVILEGE, OR WHICH ASSURES THE NECESSARY CONFIDENTIALITY OR
IMMUNITY TO OVERCOME THE PRIVILEGE.  SEE ADAMS V. MARYLAND, 347 U.S.
179; REINA V. UNITED STATES, 364 U.S. 507.  TRUE, SOME OF THE VALUES
PROTECTED BY THE SELF-INCRIMINATION GUARANTY MAY WELL BE AFFECTED TO AN
EXTENT BY ANY ENFORCED SYSTEM OF INFORMATION GATHERING BASED UPON
INDIVIDUAL PARTICIPATION, SEE MURPHY V. WATERFRONT COMMISSION, 378 U.S.
52, 55, BUT IT IS CLEAR THAT THE SCOPE OF THE PRIVILEGE DOES NOT
COINCIDE WITH THE COMPLEX OF VALUES IT HELPS TO PROTECT.  DESPITE THE
IMPACT UPON THE INVIOLABILITY OF THE HUMAN PERSONALITY, AND UPON OUR
BELIEF IN AN ADVERSARY SYSTEM OF CRIMINAL JUSTICE IN WHICH THE
GOVERNMENT MUST PRODUCE THE EVIDENCE AGAINST AN ACCUSED THROUGH ITS OWN
INDEPENDENT LABORS, THE PROSECTUION IS ALLOWED TO OBTAIN AND USE
EVIDENCE OFFERED BY THE ACCUSED "IN THE UNFETTERED EXERCISE OF THIS OWN
WILL," MALLOY V. HOGAN, 378 U.S. 1, 8, AND EVIDENCE WHICH ALTHOUGH
COMPELLED IS GENERALLY SPEAKING NOT "TESTIMONIAL," SCHMERBER V.
CALIFORNIA, 384 U.S. 757, 761.  MOREOVER, BY THE SIMPLE EXPEDIENT OF
GRANTING APPROPRIATE IMMUNITY THE GOVERNMENT IS ABLE TO SURMOUNT
ENTIRELY THE SELF-INCRIMINATION BARRIER, DESPITE THE VALUE OF PRIVACY
THAT PROVISION IS INTENDED TO PROTECT. 

UNITED STATES V. SULLIVAN, SUPRA, MAKES CLEAR THAT AN INDIVIDUAL IS
NOT EXEMPTED, BY THE FACT THAT HE MAY BE PRIVILEGED TO REFUSE TO ANSWER
SOME QUESTIONS, FROM A REQUIREMENT, "DIRECTED AT THE PUBLIC AT LARGE,"
OF FILING AN INCOME TAX RETURN EXCLUSIVELY CONTAINING QUESTIONS
"NEUTRAL ON THEIR FACE."  ALBERTSON V. SACB, 382 U.S. 70, 79.  SHAPIRO
V. UNITED STATES, SUPRA, INVOLVED A SIMILAR SITUATION; IT INVOLVED A
RECORD-KEEPING REQUIREMENT PURSUANT TO A NEUTRAL GOVERNMENTAL SYSTEM OF
PRICE REGULATION. 

ON THE OTHER HAND, WE KNOW THAT WHERE THE GOVERNMENTAL SCHEME
CLEARLY EVIDENCES THE PURPOSE OF GATHERING INFORMATION FROM CITIZENS IN
ORDER TO SECURE THEIR CONVICTION OF CRIME, IT CONTRAVENES THE
PRIVILEGE.  THUS IN ALBERTSON V. SACB, SUPRA, WE HELD INVALID BOTH THE
REQUIREMENT THAT COMMUNIST PARTY MEMBERS FILE A REGISTRATION FORM AND
THAT THEY COMPLETE AND FILE A REGISTRATION STATEMENT UNDER THE
SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950.  WE DISTINGUISHED SULLIVAN,
STATING THAT THE QUESTIONS ON THE FORMS IN ALBERTSON "ARE DIRECTED AT A
HIGHLY SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES," AND
THAT THE PRIVILEGE IS ASSERTED, NOT "IN AN ESSENTIALLY NON-CRIMINAL AND
REGULATORY AREA OF INQUIRY, BUT AGAINST AN INQUIRY IN AN AREA PERMEATED
WITH CRIMINAL STATUTES, WHERE RESPONSE TO ANY OF THE FORM'S QUESTIONS
IN CONTEXT MIGHT INVOLVE THE PETITIONERS IN THE ADMISSION OF A CRUCIAL
ELEMENT OF A CRIME."  ID., AT 79. 

THE CASES BEFORE US PRESENT A STATUTORY SYSTEM CONDEMNED BY
ALBERTSON.  THE WAGERING EXCISE TAX, THE OCCUPATIONAL TAX, AND THE
REGISTRATION REQUIREMENT ARE ONLY PARTS OF AN INTERRELATED STATUTORY
SYSTEM FOR TAXING ILLEGAL WAGERS.  WHATEVER ELSE CONGRESS MAY HAVE
MEANT TO ACHIEVE, AN OBVIOUS PURPOSE OF THIS STATUTORY SYSTEM CLEARLY
WAS TO COERCE EVIDENCE FROM PERSONS ENGAGED IN ILLEGAL ACTIVITIES FOR
USE IN THEIR PROSECTUION.  SEE UNITED STATES V. KAHRIGER, 345 U.S. 22,
37 (FRANKFURTER, J., DISSENTING). 

THE COURT'S OPINIONS FULLY ESTABLISH THE STATUTORY SYSTEM'S
IMPERMISSIBLE INVASIONS OF THE PRIVILEGE.  INDEED, 26 U.S.C. 4401
SHOULD CREATE SUBSTANTIAL SUSPICION ON PRIVILEGE GROUNDS SIMPLY BECAUSE
IT IS AN EXCISE TAX UPON PERSONS "ENGAGED IN THE BUSINESS OF ACCEPTING
WAGERS" OR WHO CONDUCT "ANY WAGERING POOL OR LOTTERY."  THE PERSONS
AFFECTED BY THIS LANGUAGE ARE A RELATIVELY SMALL GROUP, MANY OF WHOM
ARE ENGAGED IN ACTIVITIES MADE UNLAWFUL BY STATE AND FEDERAL STATUTES. 
BUT SEC. 4401 IS ACTUALLY EVEN MORE DIRECTLY CONFINED TO THAT GROUP. 
WAGERING ENTERPRISE "LICENSED UNDER STATE LAW," AND SEC. 4421 DEFINES
"WAGER" TO EXCLUDE MOST FORMS OF UNORGANIZED GAMBLING SUCH AS DICE AND
POKER, AND DEFINES "LOTTERY" TO EXCLUDE COMMONLY PLAYED GAMES SUCH AS
BINGO AND DRAWINGS CONDUCTED BY CERTAIN TAX-EXEMPT ORGANIZATIONS.  THE
EFFECT OF THESE EXCEPTIONS IS TO LIMIT THE WAGERING EXCISE TAX UNDER
SEC. 4401 ALMOST EXCLUSIVELY TO ILLEGAL, ORGANIZED GAMBLING. 

MOREOVER, THE CODE CONTEMPLATES EXTENSIVE RECORD-KEEPING REPORTING
BY PERSONS OBLIGATED TO PAY THE TAX.  BUT THESE ARE RECORDS AND REPORTS
WHICH WOULD INCRIMINATE OVERWHELMINGLY.  SECTION 6011(A) REQUIRES ANY
PERSON LIABLE TO PAY A TAX TO FILE A RETURN IN ACCORDANCE WITH THE
FORMS AND REGULATIONS PROMULGATED BY THE SECRETARY OR HIS DELEGATE. 
THE REGULATIONS PROMULGATING RECORD-KEEPING REQUIREMENTS AND THE
REQUIREMENT THAT TAXPAYERS MAKE A MONTHLY RETURN ON FORM 730, TREAS.
REG. SEC. 44.6011(A)-1(A), WERE THEREFORE FORMULATED PURSUANT TO
SPECIFIC CONGRESSIONAL AUTHORITY.  THAT THE RETURN IS INTENDED TO BE A
PART OF THE WAGERING TAX OBLIGATION IS CLEAR FROM THE FACE OF THE
RETURN ITSELF.  IMMEDIATELY UNDER FORM 730'S TITLE "TAX ON WAGERING" IS
A REFERENCE TO "(SECTION 4401 OF THE INTERNAL REVENUE CODE)," AND IN AT
LEAST THREE PLACES THE RETURN INDICATES THAT "THIS FORM MUST BE FILED,
WITH REMITTANCE, WITH THE DISTRICT DIRECTOR OF INTERNAL REVENUE." 
/1B/ 

THUS SEC. 4401 REQUIRES THAT TAXPYAERS SEND THE GOVERNMENT EVERY
MONTH BOTH THE TAX DUE AND THE COMPLETED FORM 730.  THAT MUCH CAN START
THEM ON THE ROAD TO PRISON.  THE SERVICE THEN IS FREE TO TAKE VARIOUS
STEPS TO ASSURE THAT IT DOES.  IT MAY INVESTIGATE SUCH TAXPAYERS.  IT
MAY SUBPOENA TAXPAYERS' RECORDS TO ASCERTAIN WHETHER THE PAYMENTS ARE
ACCURATE.  IT CAN AND DOES PASS ON FOR USE BY PROSECUTING AUTHORITIES
THE FACTS OF PAYMENTS AND FILING AND ANY OTHER EVIDENCE UNCOVERED. 
THESE MANY, SUBSTATNTIAL DANGERS EASILY SATISFY THE TEST FOR
INCRIMINATION FASHIONED BY OUR CASES. 

OF COURSE THE PRIVILEGE DOES NOT GUARANTEE ANONYMITY.  THE QUESTION
IN THESE CASES, HOWEVER, IS NOT WHETHER ALL GOVERNMENTAL PROGRAMS WHICH
REQUIRE CITIZENS TO EXPOSE THEIR IDENTITY ARE INVALID, BUT WHETHER THIS
STATUTORY SYSTEM, DESIGNED PRIMARILY FOR AND UTILIZED TO PIERCE THE
ANONYMITY OF CITIZENS ENGAGED IN CRIMINAL ACTIVITY, IS INVALID.  THE
PRIVILEGE DOES GUARANTEE ANONYMITY FROM INQUIRIES SO DESIGNED, WHEN THE
RISKS ARE NOT WHOLLY FANCIFUL.  AND THE RISKS HERE ARE OBVIOUS AND
REAL.  A LIST OF PERSONS WHO COMPLY WITH SEC. 4401 EVERY MONTH IS
INVALUABLE TO PROSECUTING AUTHORITIES.  IT MUST FREQUENTLY PROVIDE THE
CLINCHING LINK IN THE CHAIN OF CONVICTION. 

WE MUST TAKE THIS STATUTE AS IT IS WRITTEN AND AS IT HAS BEEN
APPLIED.  BOTH RULES, 15 IND.& LAB.REL.REV.  295, 296 (1962).  TO
GATHER EVIDENCE FROM CITIZENS IN ORDER TO SECURE THEIR CONVICTION OF
CRIME.  THERE UNDOUBTEDLY WILL BE OTHER STATUTES AND PRACTICES AS TO
WHICH THIS DETERMINATION WILL BE MORE DIFFICULT TO MAKE.  THESE CASES,
HOWEVER, PRESENT A STATUTORY SYSTEM MANIFESTING A PATENT VIOLATION OF
THE PRIVILEGE.  THAT SYSTEM MUST BE DEALT WITH UNCOMPROMISINGLY TO
PROTECT AGAINST ENCROACHMENT OF THE PRIVILEGE AND TO ENCOURAGE
LEGISLATIVE CARE AND CONCERN FOR ITS CONTINUING VITALITY. 

/1A/  (THIS OPINION APPLIES ALSO TO NO. 2, MARCHETTI V. UNITED
STATES, ANTE, P. 39.) 

/1B/  THE INSTRUCTIONS ON FORM 730 STATE THAT THE "(RETURN, WITH
REMITTANCE, COVERING THE TAX DUE UNDER SECTION 4401 FOR ANY CALENDAR
MONTH MUST BE IN THE HANDS OF THE DISTRICT DIRECTOR . . . ON OR BEFORE
THE LAST DAY OF THE SUCCEEDING MONTH.  . . . " 

MR. JUSTICE STEWART, CONCURRING.  /1A/ 

IF WE WERE WRITING UPON A CLEAN SLATE, I WOULD AGREE WITH THE
CONCLUSION REACHED BY THE CHIEF JUSTICE IN THESE CASES.  /1/  FOR I AM
CONVINCED THAT THE FIFTH AMENDMENT'S PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION WAS ORIGINALLY MENAT TO DO NO MORE THAN CONFER A
TESTIMONIAL PRIVILEGE UPON A WITNESS IN A JUDICIAL PROCEEDING.  /2/
BUT THE COURT LONG AGO LOST SIGHT OF THAT ORIGINAL MEANING.  IN THE
ABSENCE OF A FUNDAMENTAL RE-EXAMINATION OF OUR DECISIONS, THE MOST
RELEVANT RECENT ONE BEING ALBERTSON V. SACB, 382 U.S. 70, I AM
COMPELLED TO JOIN THE OPINIONS AND JUDGMENTS OF THE COURT. 

/1A/  (THIS OPINION APPLIES ALSO TO NO. 2, MARCHETTI V. UNITED
STATES, ANTE, P. 39.) 

/1/  AND IN HAYNES V. UNITED STATES, POST, P. 85. 

/2/  THAT, AFTER ALL, IS WHAT THE CLAUSE SAYS: 

"NO PERSON . . . SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF.  . . . "

MR. CHIEF JUSTICE WARREN, DISSENTING.  /1A/     THE COURT TODAY
STRIKES DOWN AS UNCONSTITUIONAL A STATUTORY SCHEME ENACTED BY CONGRESS
TO MAKE EFFECTIVE AND ENFORCEABLE TAXES IMPOSED ON WAGERS AND THE
OCCUPATION OF GAMBLING.  IN SO DOING, IT OF NECESSITY OVERRULES UNITED
STATES V. KAHRIGER, 345 U.S. 22 (1953), AND LEWIS V. UNITED STATES, 348
U.S. 419 (1955).  I CANNOT AGREE WITH THE COURT'S CONCLUSION ON THE
CONSTITUTIONAL QUESTIONS PRESENTED, AND I WOULD AFFIRM THE CONVICTIONS
IN THESE TWO CASES ON THE AUTHORITY OF KAHRIGER AND LEWIS. 

IN ADDITION TO BEING IN DISAGREEMENT WITH THE COURT ON THE RESULT IT
REACHES IN THESE CASES, I AM PUZZLED BY THE REASONING PROCESS WHICH
LEADS IT TO THAT RESULT.  THE COURT PROFESSES TO RECOGNIZE AND ACCEPT
THE POWER OF CONGRESS LEGITIMATELY TO IMPOSE TAXES ON ACTIVITIES WHICH
HAVE BEEN DECLARED UNLAWFUL BY FEDERAL OR STATE STATUTES.  YET, BY ITS
SWEEPING DECLARATION THAT THE CONGRESSIONAL SCHEME FOR ENFORCING AND
COLLECTING THE TAXES IMPOSED ON WAGERS AND GAMBLERS IS
UNCONSTITUTIONAL, THE COURT HAS STRIPPED FROM CONGRESS THE POWER TO
MAKE ITS TAXING SCHEME EFFECTIVE.  A READING OF THE REGISTRATION
REQUIREMENT OF 26 U.S.C. 4412, AS IMPLEMENTED BY INTERNAL REVENUE
SERVICE FORM 11-C, REVEALS THAT THE INFORMATION DEMANDED OF GAMBLERS IS
NO MORE THAN IS NECESSARY TO ASSURE THAT THE TAX-COLLECTION PROCESS
WILL BE EFFECTIVE.  REGISTRATION OF THOSE LIABLE FOR SPECIAL TAXES IS A
COMMON AND INTEGRAL FEATURE OF THE TAX LAWS.  SEE 26 U.S.C. 7011.  /1/
SO ALSO IS THE REQUIREMENT OF PUBLIC DISCLOSURE.  /2/  AND THE REACH OF
THE REGISTRATION AND DISCLOSURE REQUIREMENTS EXTENDS TO BOTH LAWFUL AND
UNLAWFUL ACTIVITIES.  BECAUSE REGISTRATION AND DISCLOSURE ARE SO
PERVASIVE IN THE INTERNAL REVENUE CODE, IT IS CLEAR THAT SUCH
REQUIREMENTS HAVE BEEN IMPOSED BY CONGRESS TO AID IN THE COLLECTION OF
TAXES LEGITIMATELY LEVIED.  BECAUSE MOST FORMS OF GAMBLING HAVE BEEN
DECLARED ILLEGAL IN THIS COUNTRY, GAMBLERS NECESSARILY OPERATE
FURTIVELY IN THE DARK SHADOWS OF THE UNDERWORLD.  ONLY BE REQUIRING
THAT SUCH INDIVIDUALS COME FORWARD UNDER PAIN OF CRIMINAL SANCTIONS AND
REVEAL THE NATURE AND SCOPE OF THEIR ACTIVITIES CAN CONGRESS
CONFIDENTLY EXPECT THAT REVENUE DERIVED FROM THAT OUTLAWED OCCUPATION
WILL BE SUBJECT TO THE LEGITIMATE REACH OF THE TAX LAWS.  INDEED, IT
SEEMS TO ME THAT THE VERY SECRECY WHICH SURROUNDS THE BUSINESS OF
GAMBLING DEMANDS DISCLOSURE.  THOSE LEGISLATIVE COMMITTEES AND
EXECUTIVE COMMISSIONS WHICH HAVE STUDIED THE PROBLEMS OF ILLICIT
GAMBLING ACTIVITIES HAVE FOUND IT IMPOSSIBLE TO DETERMINE WITH ANY
PRECISION THE GROSS REVENUES DERIVED FROM THAT BUSINESS.  FOR EXAMPLE,
THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE REPORTED: 

     "THERE IS NO ACCURATE WAY OF ASCERTAINING ORGANIZED CRIME'S

  GROSS REVENUE FROM GAMBLING IN THE UNITED STATES.  ESTIMATES OF

 THE ANNUAL INTAKE HAVE VARIED FROM $7 TO $50 BILLION.  . . . WHILE

  THE COMMISSION CANNOT JUDGE THE ACCURACY OF THESE FIGURES, EVEN

  THE MOST CONSERVATIVE ESTIMATES PLACE SUBSTANTIAL CAPITAL IN THE

  HANDS OF ORGANIZED CRIME LEADERS."  PRESIDENT'S COMMISSION ON LAW

  ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:

  ORGANIZED CRIME 3 (1967).  /3/

THE COMMISSION'S OBSERVATION IS DOUBLY REVEALING.  IT SHOWS THAT THE
BUSINESS OF GAMBLING IS A LUCRATIVE REVENUE SOURCE.  AND IT
DEMONSTRATES THE NEED FOR AN ENFORCEABLE DISCLOSURE DEVICE, SUCH AS THE
REGISTRATION REQUIREMENT OF SEC. 4412, IF THE REVENUE POTENTIAL IS TO
BE REALIZED.  NO ONE DENIES THAT THE DISCLOSURES DEMANDED BY SEC. 4412
CAN ALSO BE USEFUL TO LAW ENFORCEMENT OFFICIALS AND THAT THE VERY
PROCESS OF DISCLOSURE MAY HAVE A REGULATORY EFFECT ON GAMBLERS AND
THEIR OPERATIONS.  /4/  BUT THIS COURT HAS REPEATEDLY RECOGNIZED THAT
"A TAX IS NOT ANY THE LESS A TAX BECAUSE IT HAS A REGULATORY EFFECT." 
SONZINSKY V. UNITED STATES, 300 U.S. 506, 513 (1937).  SEE ALSO LICENSE
TAX CASES, 5 WALL.  462 (1867). 

IN DECLARING THE REGISTRATION REQUIREMENTS OF SEC. 4412 INVALID, THE
COURT PLACES PRINCIPAL RELIANCE ON ALBERTSON V. SACB, 382 U.S. 70
(1965).  BUT THERE IS A CRITICAL DISTINCTION BETWEEN THAT CASE AND THE
CASES DECIDED TODAY.  IN ALBERTSON, THE COURT DEALT WITH A REGISTRATION
REQUIREMENT WHICH CLASHED HEAD-ON WITH PROTECTED FIRST AMENDMENT RIGHTS
AND WHICH COULD BE VIEWED AS SERVING NO SUBSTANTIAL GOVERNMENTAL
PURPOSE IN LIGHT OF THE CURTAILMENT OF THOSE RIGHTS.  /5/  THESE
ELEMENTS ARE NOTABLY LACKING IN THE CASES DECIDED TODAY.  THE
OCCUPATION OF GAMBLING CAN IN NO SENSE BE CALLED A "PROTECTED"
ACTIVITY.  THE ONLY CLAIM THAT THOSE ENGAGED IN GAMBLING MAKE IS THAT
THEY ARE SOMEHOW ENTITLED TO HAVE THEIR ACTIVITIES SHROUDED IN SECRECY
AND SHIELDED FROM DISCLOSURE.  NOTHING IN THE CONSTITUTION COMPELS SUCH
A RESULT.  AND THERE IS CLEARLY A LEGITIMATE TAX PURPOSE IN DEMANDING
THAT GAMBLERS MAKE THE DISCLOSURES REQUIRED BY SEC. 4412 AND FORM 11-C.
DISCLOSURE BY MEANS OF REGISTRATION IS ROUTINELY REQUIRED UNDER THE
TAX LAWS OF THOSE ENGAGED IN LEGITIMATE AND LAWFUL BUSINESS
ENTERPRISES.  SEE, E.G., 26 U.S.C. 4101, 4222, 5502, 5802.  CF. SHAPIRO
V. UNITED STATES, 335 U.S. 1 (1948).  TO RELIEVE GAMBLERS OF THE
REGISTRATION REQUIREMENT IS TO CREATE FOR THOSE ENGAGED IN THAT
OCCUPATION A SPECIAL CONSTITUTIONAL PRIVILEGE OF NONREGISTRATION. 

IN VIEW OF THESE CONSIDERATIONS, I CANNOT UNDERSTAND WHY THE COURT
TODAY FINDS IT NECESSARY TO STRIKE DOWN THE REGISTRATION REQUIREMENT OF
SEC. 4412 DIRECTED AT THOSE WHO DERIVE THEIR INCOME FROM GAMBLING. 
WHAT SEEMS TO TROUBLE THE COURT IS NOT THAT REGISTRATION IS REQUIRED
BUT THAT THE INFORMATION OBTAINED THROUGH THE REGISTRATION REQUIREMENT
IS TURNED OVER BY FEDERAL OFFICIALS, UNDER THE STATUTORY COMPULSION OF
26 U.S.C. 6107, /6/  TO STATE PROSECUTORS TO AID THEM IN THE
ENFORCEMENT OF STATE GAMBLING LAWS.  IF THAT IS THE SOURCE OF THE
COURT'S FIFTH AMENDMENT CONCERN, THEN CONSTITUTIONAL ADJUDICATION
DEMANDS THAT THE PROVISIONS OF SEC. 6107 BE THE FOCUS OF THE COURT'S
DECISION.  IT DOES NOT SEEM REASONABLE TO ME TO RULE THAT, BECAUSE
INFORMATION DERIVED FROM THE REGISTRATION PROVISIONS OF SEC. 4412 MUST
BE MADE AVAILABLE TO STATE PROSECUTORS UNDER SEC. 6107, THE
REGISTRATION REQUIREMENTS SUFFER FROM A FATAL CONSTITUTIONAL INFIRMITY,
EVEN THOUGH SEC. 4412 IS A NECESSARY AND PROPER MEANS OF ASSURING THAT
THE OCCUPATIONAL TAX ON GAMBLERS WILL BE ENFORCEABLE.  CERTAINLY NO
FIFTH AMENDMENT ISSUE ARISES FROM THE FACT OF REGISTRATION UNTIL AN
EFFORT IS MADE TO USE THE REGISTRATION PROCEDURE IN AID OF CRIMINAL
PROSECUTION.  TO THE EXTENT THAT THE DISCLOSURE REQUIREMENTS OF SEC.
6107 WOULD RAISE A FIFTH AMENDMENT PROBLEM BECAUSE SOME OF THE NAMES ON
THE PUBLIC LIST HAVE ADMITTED UNLAWFUL ACTIVITIES, THAT STATUTORY
PROVISION IS SEVERABLE FOR PURPOSES OF CONSTITUTIONAL ADJUDICATION.  IN
FACT, IN THE INTERNAL REVENUE CODE ITSELF, CONGRESS HAS SPECIFICALLY
ENACTED A SEVERABILITY CLAUSE.  SECTION 7852(A) OF TITLE 26 PROVIDES:
"IF ANY PROVISION OF THIS TITLE, OR THE APPLICATION THEREOF TO ANY
PERSON OR CIRCUMSTANCES, IS HELD INVALID, THE REMAINDER OF THE TITLE,
AND THE APPLICATION OF SUCH PROVISION TO OTHER PERSONS OR
CIRCUMSTANCES, SHALL NOT BE AFFECTED THEREBY."  THAT CLAUSE REPRESENTS
A CLEAR STATUTORY COMMAND TO THIS COURT TO WIELD ITS CONSTITUTIONAL
KNIFE SURGICALLY, CONCENTRATING ON THE SUSPECT PROVISIONS OF SEC. 6107
RATHER THAN BLUDGEONING THE ENTIRE TAXING SCHEME.  THE COURT CANNOT
EVADE THIS CONSTITUTIONAL AND STATUTORY DUTY, AS IT SEEMS TO DO, BY
LABELING EVERY PROVISION OF THE WAGERING TAX STATUTES AS "INTERRELATED"
OR "INTEGRAL." 

THERE IS NO SUCH NARROW FOCUS TO THE COURT'S APPROACH TO THESE TWO
CASES.  IN FACT, THE COURT IMPLIEDLY REJECTS SUCH AN APPROACH IN
DEALING WITH THE GOVERNMENT'S SUGGESTION THAT THE TAXING SCHEME AT
ISSUE BE SAVED FROM CONSTITUTIONAL INTERMENT BY IMPOSING A USE
RESTRICTION ON THE INFORMATION DERIVED FROM REGISTRATION UNDER SEC.
4412.  CF. MURPHY V. WATERFRONT COMMISSION, 378 U.S. 52 (1964).  THE
COURT FINDS SUCH A LIMITATION UNACCEPTABLE BECAUSE THE LEGISLATIVE
HISTORY OF THE WAGERING TAX SYSTEM REVEALS A CONGRESSIONAL PURPOSE TO
MAKE AVAILABLE TO STATE AND LOCAL LAW ENFORCEMENT OFFICIALS THE
DISCLOSURES MADE THROUGH REGISTRATION.  THE COURT REASONS THAT TO
IMPOSE THE USE RESTRICTION WOULD BE TO DEFEAT THE CONGRESSIONAL
PURPOSE, AND IT FINDS THE SUGGESTED SAVING DEVICE UNACCEPTABLE.  BUT
REALISTICALLY THE COURT'S SWEEPING CONSTITUTIONAL RULING HAS THE EFFECT
OF FRUSTRATING TWO CONGRESSIONAL PURPOSES-- THE DISCLOSURE PURPOSE AND
THE REVENUE PURPOSE.  SUCH A RESULT CAN HARDLY BE JUSTIFIED ON THE
GROUND OF ACCORDING A CONGRESSIONAL PURPOSE THE DEFERENCE DUE IT BY
THIS COURT; CONCEDING THAT THE STATUTORY SCHEME IS INTENDED TO ASSIST
LAW ENFORCEMENT, THE FACT THAT TAXES IN THE SUM OF $115,000,000 HAVE
FLOWED FROM THE WAGERING TAX SCHEME TO THE TREASURY IN THE PAST SEVERAL
YEARS IS CONVINCING EVIDENCE OF A LEGITIMATE TAX PURPOSE.  THE
CONGRESSIONAL INTENT TO ASSIST LAW ENFORCEMENT SHOULD NOT BE THE EXCUSE
FOR FRUSTRATING THE REVENUE PURPOSE OF THE STATUTES BEFORE THE COURT. 
REGARDLESS OF LEGISLATIVE INTENT, THIS COURT HAS IN THE PAST REFUSED
"TO FORMULATE A RULE OF CONSTITUTIONAL LAW BROADER THAN IS REQUIRED." 
GARNER V. LOUISIANA, 368 U.S. 157, 163 (1961); CF. KENNEDY V. MENDOZA
MARTINEZ, 372 U.S. 144, 186, N. 43 (1963).  THIS PRINCIPLE SHOULD
PREVAIL IN THIS CASE WHERE THE ACT HAS THE WHOLESOME OBJECTIVE OF
DEVISING WORKABLE PROCEDURES TO ASSURE THAT GAMBLERS WILL PAY THE SAME
TAXES ON THEIR PROFITS AS OTHER CITIZENS ARE COMPELLED TO PAY. 

I APPREHEND THAT THE COURT, BY UNNECESSARILY SWEEPING WITHIN ITS
CONSTITUTIONAL HOLDING THE REGISTRATION REQUIREMENTS OF SEC. 4412, IS
OPENING THE DOOR TO A NEW WAVE OF ATTACKS ON A NUMBER OF FEDERAL
REGISTRATION STATUTES WHENEVER THE REGISTRATION REQUIREMENT TOUCHES
UPON ALLEGEDLY ILLEGAL ACTIVITIES.  AS I NOTED ABOVE, REGISTRATION IS A
COMMON FEATURE ATTACHED TO A NUMBER OF SPECIAL TAXES IMPOSED BY TITLE
26.  FOR EXAMPLE, THE FOLLOWING PROVISIONS IMPOSE SPECIAL REGISTRATION
REQUIREMENTS:  SEC. 4101 (THOSE SUBJECT TO THE TAX ON PETROLEUM
PRODUCTS); SEC. 4222 (REGISTRATION REGARDING CERTAIN TAX-FREE SALES BY
MANUFACTURERS); SEC. 4722 (THOSE ENGAGED IN DEALING IN NARCOTIC DRUGS);
SEC. 4753 (THOSE WHO DEAL IN MARIHUANA); SEC. 4804(D) (MANUFACTURERS OF
WHITE PHOSPHOROUS MATCHES); SECS. 5171-5172 (REGISTRATION OF
DISTILLERIES); SEC. 5179 (REGISTRATION OF STILLS); SEC. 5502
(MANUFACTURERS OF VINEGAR); SEC. 5802 (IMPORTERS, MANUFACTURERS, AND
DEALERS IN FIREARMS).  AND SEC. 7011 IMPOSES A GENERAL REGISTRATION
REQUIREMENT ON ALL THOSE LIABLE FOR OTHER SPECIAL TAXES.  /7/
HERETOFORE THIS COURT HAS CONSISTENTLY UPHELD THE VALIDITY OF SUCH
REGISTRATION REQUIREMENTS, WITHOUT REGARD TO THE LEGALITY OF THE
ACTIVITY BEING TAXED.  UNITED STATES V. SANCHEZ, 340 U.S. 42 (1950) (16
U.S.C. 4753); SONZINSKY V. UNITED STATES, 300 U.S. 506 (1937) (16
U.S.C. 5841); NIGRO V. UNITED STATES, 276 U.S. 332 (1928) (16 U.S.C.
4722).  THE IMPLICATIONS OF THE COURT'S DECISIONS TODAY ALSO EXTEND
BEYOND THE TAX STATUTES.  FOR EXAMPLE, THE STATUTE REQUIRING NARCOTICS
ADDICTS AND VIOLATORS TO REGISTER WHENEVER THEY ENTER OR LEAVE THE
COUNTRY, 18 U.S.C. 1407, CAN NOW BE EXPECTED TO COME UNDER ATTACK.  MY
CONCERN THAT SUCH REGISTRATION REQUIREMENTS WILL NOW COME UNDER ATTACK
IS NOT IMAGINARY.  THIS VERY DAY THE COURT, ADHERING TO ITS DECISIONS
IN MARCHETTI AND GROSSO, DECLARES UNCONSTITUTIONAL IN HAYNES V. UNITED
STATES, POST, P. 85, 26 U.S.C. 5851, WHICH MAKES UNLAWFUL THE
POSSESSION OF A FIREARM NOT REGISTERED UNDER SEC. 5841.  /8/  THE
IMPACT OF THAT DECISION ON THE EFFORTS OF CONGRESS TO ENACT MUCH-NEEDED
FEDERAL GUN CONTROL LAWS IS NOT CONSISTENT WITH NATIONAL SAFETY.  IN MY
VIEW, THE COURT HAS FAILED TO TAKE ACCOUNT OF THESE RELEVANT
IMPLICATIONS IN THE VERY BROAD HOLDINGS OF TODAY'S DECISIONS. 

/1A/  (THIS OPINION APPLIES ALSO TO NO. 2, MARCHETTI V. UNITED
STATES, ANTE, P. 39.) 

/1/  IT IS TRUE THAT THE INTERNAL REVENUE CODE ALSO IMPOSES SPECIAL
REGISTRATION REQUIREMENTS IN CONNECTION WITH SOME OF THE SPECIAL
TAXES.  SEE THE REGISTRATION SECTIONS COLLECTED IN 26 U.S.C. 7012. 
HOWEVER, THE SPECIAL REGISTRATION REQUIREMENTS DIFFER ONLY IN DEGREE,
AND NOT IN KIND, FROM THE PROVISTONS OF SEC. 7011. 

/2/  AMONG THE MORE GENERAL PUBLIC DISCLOSURE PROVISIONS OF THE
REVENUE CODE ARE SEC. 6103(F) LIST OF TAXPAYERS); SEC. 6104 (RETURNS OF
CERTAIN TAX-EXEMPT ORGANIZATIONS); AND SEC. 6105 (LISTS OF THOSE WHO
HAVE BEEN GRANTED EXCESS PROFIT RELIEF). 

/3/  OTHER REPORTS ARE SIMILARLY INDEFINITE CONCERNING THE PRECISE
AMOUNT OF REVENUE REALIZED BY ORGANIZED CRIME FROM ILLICIT GAMBLING
OPERATIONS.  THUS, A SENATE REPORT COULD BE NO MORE EXACT THAN TO
DESCRIBE UNLAWFUL GAMBLING ACTIVITIES AS "A MULTIBILLION DOLLAR
RACKET."  PERMANENT SUBCOMMITTEE ON INVESTIGATIONS OF THE SENATE
COMMITTEE ON GOVERNMENT OPERATIONS, GAMBLING AND ORGANIZED CRIME, S.
REP. NO. 1310, 87TH CONG., 2D SESS., 43 (1962).  THE PRESIDENT'S
COMMISSION ON CRIME IN THE DISTRICT OF COLUMBIA REPORTED THAT "OVER 100
MILLION DOLLARS IS BET ANNUALLY ON 'NUMBERS' AND SPORTS EVENTS" IN THE
WASHINGTON METROPOLITAN AREA.  THE COMMISSION RELIED FOR ITS FIGURES ON
INFORMATION SUPPLIED BY SHELDON S. COHEN, COMMISSIONER OF INTERNAL
REVENUE.  REPORT OF THE PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT
OF COLUMBIA 112 (1966). 

/4/  INVESTIGATIONS BY CONGRESSIONAL COMMITTEES HAVE ESTABLISHED
THAT GAMBLING REVENUE PROVIDES A PRINCIPAL SOURCE OF REVENUE FOR
ORGANIZED CRIME IN THIS COUNTRY.  SEE S. REP. NO. 1310, 87TH CONG., 2D
SESS., 43 (1962); S. REP. NO. 141, 82D CONG., 1ST SESS., 11 (1951). 
SOME CONGRESSMEN MAY WELL HAVE BEEN MOTIVATED BY A DESIRE TO CONTROL
AND CURTAIL ORGANIZED CRIME IN ENACTING THE TAX LAWS CHALLENGED IN
THESE CASES.  HOWEVER, IT IS NOT THE TASK OF THIS COURT TO EXAMINE SUCH
MOTIVES IN RULING ON THE CONSTITUTIONALITY OF SUCH LAWS, AND THE COURT
TODAY HAS WISELY DECLINED TO ENGAGE IN ANY MOTIVE-SEARCHING INQUIRIES. 
/5/  I RECOGNIZE THAT ALBERTSON WAS DECIDED ON FIFTH AMENDMENT
GROUNDS WITHOUT REACHING THE PETITIONERS' FIRST AMENDMENT CLAIMS.  382
U.S.,AT 73-74 AND N. 6.  HOWEVER, IN APPLYING THE ALBERTSON HOLDING TO
THE FACTS OF THESE CASES, IT CANNOT BE OVERLOOKED THAT THE REGISTRATION
REQUIREMENT IN ALBERTSON WAS DIRECTED AT THE PETITIONERS'
ORGANIZATIONAL AFFILIATIONS WHICH WERE ARGUABLY PROTECTED BY THE FIRST
AMENDMENT.  SEE UNITED STATES V. ROBEL, 389 U.S. 258 (1967).  THERE IS
NO SUCH FIRST AMENDMENT ISSUE LURKING IN THE CASES DECIDED TODAY.  THE
OPERATIVE FACT UPON WHICH THE REGISTRATION REQUIREMENT OF SEC. 4412
DEPENDS IS AN INDIVIDUAL'S STATUS AS A GAMBLER. 

/6/  THE COURT POINTS OUT IN GROSSO V. UNITED STATES THAT THE
DISCLOSURE REQUIREMENTS OF SEC. 6107 DO NOT EXTEND TO THE EXCISE TAX
PROVISIONS OF SEC. 4401.  BUT, BY ADMINISTRATIVE PRACTICE, THE IDENTITY
OF THOSE WHO PAY THE EXCISE TAX ON WAGERS IS MADE KNOWN TO STATE
PROSECUTING OFFICIALS.  ANTE, AT 66. 

/7/  FOR EXAMPLE, THE FOLLOWING SECTIONS IMPOSE OCCUPATIONAL TAXES
AND SUBJECT THE TAXPAYER TO THE REGISTRATION REQUIREMENTS OF SEC. 7011:
SEC. 4461 (THOSE WHO MAINTAIN FOR USE OR PERMIT USE OF COIN-OPERATED
AMUSEMENT OR GAMING DEVICES); SECS. 4721 AND 4702(A)(2)(C) (THOSE WHO
DEAL IN NARCOTIC DRUGS); SEC. 4751 (DEALERS IN MARIHUANA); SEC. 4821
(MANUFACTURERS OF DEALERS IN RENOVATED OR ADULTERATED BUTTER); SEC.
4841 (MANUFACTURERS OR DEALERS IN FILLED CHEESE); SEC. 5081 (THOSE WHO
RECTIFY DISTILLED SPIRITS OR WINES); SEC. 5091 (BREWERS OF BEER); SEC.
5101 (MANUFACTURERS OF STILLS); AND SEC. 5111 (WHOLESALE DEALERS IN
LIQUORS, WINES, AND BEER); SEC. 5121 (RETAIL DEALERS IN LIQUORS, WINES,
AND BEER); AND SEC. 5801 (DEALERS IN CERTAIN FIREARMS).  THE
REGISTRATION REQUIREMENT APPLIES UNIFORMLY TO THOSE ENGAGED IN SUCH
OCCUPATIONS LAWFULLY AND THOSE WHOSE ACTIVITIES WOULD MAKE THEM LIABLE
TO CRIMINAL PENALTIES. 

/8/  THE PETITION FOR A WRIT OF CERTIORARI IN HAYNES WAS FILED ON
MARCH 11, 1967, ALMOST A YEAR AFTER THIS COURT GRANTED A WRIT OF
CERTIORARI IN COSTELLO V. UNITED STATES (THE COMPANION CASE TO
MARCHETTI).  IN GRANTING THE WRIT, THE COURT STIPULATED AS THE SOLE
QUESTION IN COSTELLO WHETHER KAHRIGER AND LEWIS SHOULD BE OVERRULED. 
383 U.S. 942.  THERE CAN BE LITTLE DOUBT THAT THE COURT'S SPECIFICATION
OF THE QUESTION FOR ARGUMENT IN COSTELLO PROMPTED THE FIFTH AMENDMENT
CHALLENGE IN HAYNES. 

CHARLES ALAN WRIGHT REARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEFS ON THE REARGUMENT AND ON THE ORIGINAL ARGUMENT WAS JAMES E.
MCLAUGHLIN. 

FRANCIS X. BEYTAGH, JR., REARGUED THE CAUSE FOR THE UNITED STATES,
PRO HAC VICE.  WITH HIM ON THE BRIEF ON THE REARGUMENT WERE ACTING
SOLICITOR GENERAL SPRITZER, ASSISTANT ATTORNEY GENERAL VINSON, BEATRICE
ROSENBERG AND JEROME M. FEIT.  JACK S. LEVIN ARGUED THE CAUSE FOR THE
UNITED STATES ON THE ORIGINAL ARGUMENT.  ON THE BRIEF WERE SOLICITOR
GENERAL MARSHALL, ASSISTANT ATTORNEY GENERAL VINSON, MISS ROSENBERG AND
THEODORE GEORGE GILINSKY. 
..END :







HAYNES V. UNITED STATES, 390 U.S. 85 


       HAYNES V. UNITED STATES. 

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           FIFTH CIRCUIT. 

        NO. 236.  ARGUED OCTOBER 11, 1967.-- DECIDED JANUARY 29,

           1968. 


PETITIONER WAS CHARGED BY INFORMATION WITH VIOLATING 26 U.S.C. 5851
(PART OF THE NATIONAL FIREARMS ACT, AN INTERRELATED STATUTORY SYSTEM
FOR THE TAXATION OF CERTAIN CLASSES OF FIREARMS USED PRINCIPALLY BY
PERSONS ENGAGED IN UNLAWFUL ACTIVITIES) BY KNOWINGLY POSSESSING A
DEFINED FIREARM WHICH HAD NOT BEEN REGISTERED AS REQUIRED BY 26 U.S.C.
5841.  SECTION 5841 OBLIGATES THE POSSESSOR OF A DEFINED FIREARM TO
REGISTER THE WEAPON, UNLESS HE MADE IT OR ACQUIRED IT BY TRANSFER OR
IMPORTATION, AND THE ACT'S REQUIREMENTS AS TO TRANSFERS, MAKINGS AND
IMPORTATIONS "WERE COMPLIED WITH."  SECTION 5851 DECLARES UNLAWFUL THE
POSSESSION OF SUCH FIREARM WHICH HAS "AT ANY TIME" BEEN TRANSFERRED OR
MADE IN VIOLATION OF THE ACT, OR WHICH "HAS NOT BEEN REGISTERED AS
REQUIRED BY SECTION 5841."  ADDITIONALLY, SEC. 5851 PROVIDES THAT
"POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE
CONVICTION, UNLESS THE DEFENDANT EXPLAINS SUCH POSSESSION TO THE
SATISFACTION OF THE JURY."  PETITIONER MOVED BEFORE TRIAL TO DISMISS
THE CHARGE, SUFFICIENTLY ASSERTING THAT SEC. 5851 VIOLATED HIS
PRIVILEGE AGAINST SELF-INCRIMINATION GUARANTEED BY THE FIFTH
AMENDMENT.  THE MOTION WAS DENIED, PETITIONER PLEADED GUILTY, AND HIS
CONVICTION WAS AFFIRMED BY THE COURT OF APPEALS.  HELD: 

1.  CONGRESS, SUBJECT TO CONSTITUTIONAL LIMITATIONS, HAS AUTHORITY
TO REGULATE THE MANUFACTURE, TRANSFER, AND POSSESSION OF FIREARMS, AND
MAY TAX UNLAWFUL ACTIVITIES.  PP. 90, 98. 

2.  PETITIONER'S CONVICTION UNDER SEC. 5851 FOR POSSESSION OF AN
UNREGISTERED FIREARM IS NOT PROPERLY DISTINGUISHABLE FROM A CONVICTION
UNDER SEC. 5841 FOR FAILURE TO REGISTER POSSESSION OF A FIREARM, AND
BOTH OFFENSES MUST BE DEEMED SUBJECT TO ANY CONSTITUTIONAL DEFICIENCIES
ARISING UNDER THE FIFTH AMENDMENT FROM THE OBLIGATION TO REGISTER.  PP.
90-95. 

3.  A PROPER CLAIM OF THE PRIVILEGE AGAINST SELF-INCRIMINATION
PROVIDES A FULL DEFENSE TO PROSECUTIONS EITHER FOR FAILURE TO REGISTER
UNDER SEC. 5841 OR FOR POSSESSION OF AN UNREGISTERED FIREARM UNDER SEC.
5851.  PP. 95-100. 

4.  RESTRICTIONS UPON THE USE BY FEDERAL AND STATE AUTHORITIES OF
INFORMATION OBTAINED AS A CONSEQUENCE OF THE REGISTRATION REQUIREMENT,
SUGGESTED BY THE GOVERNMENT, IS NOT APPROPRIATE.  MARCHETTI V. UNITED
STATES, ANTE, P. 39, AND GROSSO V. UNITED STATES, ANTE, P. 62.  PP. 99
100. 

5.  SINCE ANY PROCEEDING IN THE DISTRICT COURT UPON A REMAND MUST
INEVITABLY RESULT IN THE REVERSAL OF PETITIONER'S CONVICTION, IT WOULD
BE NEITHER JUST NOR APPROPRIATE TO REQUIRE SUCH NEEDLESS ACTION AND
ACCORDINGLY THE JUDGMENT IS REVERSED.  PP. 100-101. 

372 F.2D 651, REVERSED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CHARGED BY A THREE-COUNT INFORMATION FILED IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WITH
VIOLATIONS OF THE NATIONAL FIREARMS ACT.  48 STAT. 1236.  TWO OF THE
COUNTS WERE SUBSEQUENTLY DISMISSED UPON MOTION OF THE UNITED STATES
ATTORNEY.  THE REMAINING COUNT AVERRED THAT PETITIONER, IN VIOLATION OF
26 U.S.C. 5851, KNOWINGLY POSSESSED A FIREARM, AS DEFINED BY 26 U.S.C.
5848(1), WHICH HAD NOT BEEN REGISTERED WITH THE SECRETARY OF THE
TREASURY OR HIS DELEGATE, AS REQUIRED BY 26 U.S.C. 5841.  PETITIONER
MOVED BEFORE TRIAL TO DISMISS THIS COUNT, EVIDENTLY ASSERTING THAT SEC.
5851 VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION, AS GUARANTEED
BY THE FIFTH AMENDMENT, /1/  THE MOTION WAS DENIED, AND PETITIONER
THEREUPON ENTERED A PLEA OF GUILTY.  /2/  THE JUDGMENT OF CONVICTION
WAS AFFIRMED BY THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.  372 F.2D
651.  WE GRANTED CERTIORARI TO EXAMINE THE CONSTITUTIONALITY UNDER THE
FIFTH AMENDMENT OF PETITIONER'S CONVICTION.  388 U.S. 908.  FOR REASONS
WHICH FOLLOW, WE REVERSE. 

     I. 

INTERRELATED STATUTORY SYSTEM FOR THE TAXATION OF CERTAIN CLASSES OF
FIREARMS.  THE ACT'S REQUIREMENTS ARE APPLICABLE ONLY TO SHOTGUNS WITH
BARRELS LESS THAN 18 INCHES LONG; RIFLES WITH BARRELS LESS THAN 16
INCHES LONG; OTHER WEAPONS, MADE FROM A RIFLE OR SHOTGUN, WITH AN
OVERALL LENGTH OF LESS THAN 26 INCHES; MACHINE GUNS AND OTHER AUTOMATIC
FIREARMS; MUFFLERS AND SILENCERS; AND OTHER FIREARMS, EXCEPT PISTOLS
AND REVOLVERS, "IF SUCH WEAPON IS CAPABLE OF BEING CONCEALED ON THE
PERSON.  . . . "  26 U.S.C. 5848(1); TREAS. REG. SEC. 179.20, 26 CFR
179.20.  THESE LIMITATIONS WERE APPARENTLY INTENDED TO GUARANTEE THAT
ONLY WEAPONS USED PRINCIPALLY BY PERSONS ENGAGED IN UNLAWFUL ACTIVITIES
WOULD BE SUBJECTED TO TAXATION.  /4/ 

IMPORTERS, MANUFACTURERS, AND DEALERS IN SUCH FIREARMS ARE ABLIGED
EACH YEAR TO PAY SPECIAL OCCUPATIONAL TAXES, AND TO REGISTER WITH THE
SECRETARY OF THE TREASURY OR HIS DELEGATE.  26 U.S.C. 5801, 5802. 
SEPARATE TAXES ARE IMPOSED ON THE MAKING AND TRANSFER OF SUCH FIREARMS
BY PERSONS OTHER THAN THOSE OBLIGED TO PAY THE OCCUPATIONAL TAXES.  26
U.S.C. 5811, 5821.  FOR PURPOSES OF THESE ADDITIONAL TAXES, THE ACTS OF
MAKING AND TRANSFERRING FIREARMS ARE BROADLY DEFINED.  SECTION 5821
THUS IMPOSES A TAX ON THE MAKING OF A FIREARM "WHETHER BY MANUFACTURE,
PUTTING TOGETHER, ALTERATION, ANY COMBINATION THEREOF, OR OTHERWISE." 
SIMILARLY, TO TRANSFER ENCOMPASSES "TO SELL, ASSIGN, PLEDGE, LEASE,
LOAN, GIVE AWAY, OR OTHERWISE DISPOSE OF" A FIREARM.  26 U.S.C.
5848(10). 

ALL THESE TAXES ARE SUPPLEMENTED BY COMPREHENISIVE REQUIREMENTS
CALCULATED TO ASSURE THEIR COLLECTION.  ANY INDIVIDUAL WHO WISHES TO
MAKE A WEAPON, WITHIN THE MEANING OF SEC. 5821(A), IS OBLIGED, "PRIOR
TO SUCH MAKING," TO DECLARE HIS INTENTION TO THE SECRETARY, AND TO
PRIVIDE TO THE TREASURY HIS FINGERPRINTS AND PHOTOGRAPH.  26 U.S.C.
5821(E); TREAS. REG. 179.78.  THE DECLARATION MUST BE "SUPPORTED BY A
CERTIFICATE OF THE LOCAL CHIEF OF POLICE . . . OR SUCH OTHER PERSON
WHOSE CERTIFICATE MAY . . . BE ACCEPTABLE.  . . . "  TREAS. REG. SEC.
179.78.  THE CERTIFICATE MUST INDICATE SATISFACTION THAT THE
FINGERPRINTS AND PHOTOGRAPH ARE THOSE OF THE DECLARANT, AND THAT THE
FIREARM IS INTENDED "FOR LAWFUL PURPOSES."  IBID.  ANY PERSON WHO
WISHES TO TRANSFER SUCH A WEAPON MAY LAWFULLY DO SO ONLY IF HE FIRST
OBTAINS A WRITTEN ORDER FROM THE PROSPECTIVE TRANSFEREE ON AN
"APPLICATION FORM ISSUED . . . FOR THAT PURPOSE BY THE SECRETARY."  26
U.S.C. 5814(A).  THE APPLICATION, SUPPORTED BY A CERTIFICATE OF THE
LOCAL CHIEF OF POLICE, AND ACCOMPANIED BY THE TRANSFEREE'S FINGERPRINTS
AND PHOTOGRAPH, MUST BE APPROVED BY THE SECRETARY PRIOR TO THE
TRANSFER.  TREAS. REG. SECS. 179.98, 179.99.  FINALLY, EVERY PERSON
POSSESSING SUCH A FIREARM IS OBLIGED TO REGISTER HIS POSSESSION WITH
THE SECRETARY, UNLESS HE MADE THE WEAPON, OR ACQUIRED IT BY TRANSFER OR
IMPORTATION, AND THE ACT'S REQUIREMENTS AS TO TRANSFERS, MAKINGS, AND
IMPORTATIONS "WERE COMPLIED WITH."  26 U.S.C. 5841.  /5/ 

FAILURE TO COMPLY WITH ANY OF THE ACT'S REQUIREMENTS IS MADE
PUNISHABLE BY FINES AND IMPRISONMENT.  26 U.S.C. 5861.  IN ADDITION,
SEC. 5851 CREATES A SERIES OF SUPPLEMENTARY OFFENSES; IT DECLARES
UNLAWFUL THE POSSESSION OF ANY FIREARM WHICH HAS "AT ANY TIME" BEEN
TRANSFERRED OR MADE IN VIOLATION OF THE ACT'S PROVISIONS, OR WHICH "HAS
NOT BEEN REGISTERED AS REQUIRED BY SECTION 5841."  FINALLY, SEC. 5851
PROVIDES THAT IN PROSECUTIONS CONDUCTED UNDER THAT SECTION "POSSESSION
SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION, UNLESS THE
DEFENDANT EXPLAINS SUCH POSSESSION TO THE SATISFACTION OF THE JURY." 

        II. 

AT THE OUTSET, IT MUST BE EMPHASIZED THAT THE ISSUE IN THIS CASE IS
NOT WHETHER CONGRESS HAS AUTHORITY UNDER THE CONSTITUTION TO REGULATE
THE MANUFACTURE, TRANSFER, OR POSSESSION OF FIREARMS; NOR IS IT WHETHER
CONGRESS MAY TAX ACTIVITIES WHICH ARE, WHOLLY OR IN PART, UNLAWFUL. 
RATHER, WE ARE REQUIRED TO RESOLVE ONLY THE NARROW ISSUE OF WHETHER
ENFORCEMENT OF SEC. 5851 AGAINST PETITIONER, DESPITE HIS ASSERTION OF
THE PRIVILEGE AGAINST SELF-INCRIMINATION, IS CONSTITUTIONALLY
PERMISSIBLE.  THE QUESTIONS NECESSARY FOR DECISION ARE TWO:  FIRST,
WHETHER PETITIONER'S CONVICTION UNDER SEC. 5851 IS MEANINGFULLY
DISTINGUISHABLE FROM A CONVICTION UNDER SEC. 5841 FOR FAILURE TO
REGISTER POSSESSION OF A FIREARM; AND SECOND, IF IT IS NOT, WHETHER
SATISFACTION OF PETITIONER'S OBLIGATION TO REGISTER UNDER SEC. 5841
WOULD HAVE COMPELLED HIM TO PROVIDE INFORMATION INCRIMINATING TO
HIMSELF.  IF, AS PETITIONER URGES, HIS CONVICTION UNDER SEC. 5841, AND
IF A PROSECUTION UNDER SEC. 5841 WOULD HAVE PUNISHED PETITIONER FOR HIS
FAILURE TO INCRIMINATE HIMSELF, IT WOULD FOLLOW THAT A PROPER CLAIM OF
PRIVILEGE SHOULD HAVE PROVIDED A FULL DEFENSE TO THIS PROSECUTION.  /6/
TO THESE QUESTIONS WE TURN. 

      III. 

THE FIRST ISSUE IS WHETHER THE ELEMENTS OF THE OFFENSE UNDER SEC.
5851 OF POSSESSION OF A FIREARM "WHICH HAS NOT BEEN REGISTERED AS
REQUIRED BY SECTION 5841" DIFFER IN ANY SIGNIFICANT RESPECT FROM THOSE
OF THE OFFENSE UNDER SEC. 5841 OF FAILURE TO REGISTER POSSESSION OF A
FIREARM.  THE UNITED STATES CONTENDS THAT THE TWO OFFENSES, DESPITE THE
SIMILARITY OF THEIR STATUTORY DESCRIPTIONS, SERVE ENTIRELY DIFFERENT
PURPOSES, IN THAT THE REGISTRATION CLAUSE OF SEC. 5851 IS INTENDED TO
PUNISH ACCEPTANCE OF THE POSSESSION OF A FIREARM WHICH, DESPITE THE
REQUIREMENTS OF SEC. 5841, WAS NEVER REGISTERED BY ANY PRIOR POSSESSOR,
WHILE SEC. 5841 PUNISHES ONLY A PRESENT POSSESSOR WHO HAS FAILED TO
REGISTER THE FACT OF HIS OWN POSSESSION.  IF THIS CONSTRUCTION IS
CORRECT, NOTHING IN A PROSECUTION UNDER SEC. 5851 WOULD TURN ON WHETHER
THE PRESENT POSSESSOR HAD ELECTED TO REGISTER; HIS OFFENSE WOULD HAVE
BEEN COMPLETE WHEN HE ACCEPTED POSSESSION OF A FIREARM WHICH NO
PREVIOUS POSSESSOR HAD REGISTERED.  WE NEED NOT DETERMINE WHETHER THIS
CONSTRUCTION WOULD BE FREE FROM CONSTITUTIONAL DIFFICULTY UNDER THE
FIFTH AMENDMENT, FOR WE HAVE CONCLUDED THAT SEC. 5851 CANNOT PROPERLY
BE CONSTRUED AS THE UNITED STATES HAS URGED.  /7/ 

THE UNITED STATES FINDS SUPPORT FOR ITS CONSTRUCTION OF SEC. 5851
CHIEFLY IN THE SECTION'S USE OF THE PAST TENSE:  THE ACT STATED TO BE
UNLAWFUL IS "TO POSSESS ANY FIREARM WHICH HAS NOT BEEN REGISTERED AS
REQUIRED BY SECTION 5841."  IT IS CONTENDED THAT WE MAY INFER FROM THIS
CHOICE OF TENSE THAT THE FAILURE TO REGISTER MUST NECESSARILY PRECEDE
THE ACCUSED'S ACQUISITION OF POSSESSION.  WE CANNOT DERIVE SO MUCH FROM
SO LITTLE.  WE PERCEIVE NO MORE IN THE DRAFTSMAN'S CHOICE OF TENSE THAN
THE OBVIOUS FACT THAT THE FAILURE TO REGISTER MUST PRECEDE THE MOMENT
AT WHICH THE ACCUSED IS CHARGED; WE FIND NOTHING WHICH CONFINES THE
CLAUSE'S APPLICATION TO FAILURES TO REGISTER WHICH HAVE OCCURRED BEFORE
A PRESENT POSSESSOR RECEIVED THE FIREARM.  IT FOLLOWS THAT THE PHRASE
FASTENED UPON BY THE UNITED STATES IS, AT THE LEAST, EQUALLY CONSISTENT
WITH THE CONSTRUCTION ADVANCED BY PETITIONER. 

IF, HOWEVER, NOTHING FURTHER WERE AVAILABLE, IT MIGHT BE INCUMBENT
UPON US TO ACCEPT THE GOVERNMENT'S CONSTRUCTION IN ORDER TO AVOID THE
ADJUDICATION OF A SERIOUS CONSTITUTIONAL ISSUE.  SEE, E.G., ASHWANDER
V. VALLEY AUTHORITY, 297 U.S. 288, 348 (CONCURRING OPINION); CROWELL V.
BENSON, 285 U.S. 22, 62.  BUT THERE ARE PRESUASIVE INDICATIONS AT HAND
WHICH, IN OUR VIEW, PRECLUDE ADOPTION OF THE POSITION URGED BY THE
UNITED STATES.  INITIALLY, WE MUST NOTE THAT EACH OF THE OTHER TWO
OFFENSES DEFINED BY SEC. 5851 INDICATES VERY SPECIFICALLY THAT THE
VIOLATIONS OF THE MAKING OR TRANSFER PROVISIONS, ON WHICH THE SEC. 5851
OFFENSES ARE ULTIMATELY PREMISED, CAN HAVE OCCURRED "AT ANY TIME."  AN
ANALOGOUS PHRASE IN THE REGISTRATION CALUSE WOULD HAVE MADE PLAIN
BEYOND ALL QUESTION THAT THE CONSTRUCTION NOW URGED BY THE UNITED
STATES SHOULD BE ACCEPTED; IF THIS WAS INDEED CONGRESS' PURPOSE, IT IS
DIFFICULT TO SEE WHY IT DID NOT, AS IT DID IN THE OTHER CLAUSES, INSERT
THE FEW ADDITIONAL WORDS NECESSARY TO MAKE CLEAR ITS WISHES.  THE
POSITION SUGGESTED BY THE UNITED STATES WOULD THUS OBLIGE US, AT THE
OUTSET, TO ASSUME THAT CONGRESS HAS, IN THIS ONE CLAUSE, CHOSEN A
REMARKABLY OBLIQUE AND UNREVEALING PHRASING. 

SIMILARLY, IT IS PERTINENT TO NOTE THAT THE TRANSFER AND MAKING
CLAUSES OF SEC. 5851 PUNISH THE RECEIPT, AS WELL AS THE POSSESSION, OF
FIREARMS; THE REGISTRATION CLAUSE, IN CONTRAST, PUNISHES ONLY
POSSESSION.  UNDER THE CONSTRUCTION GIVEN SEC. 5851 BY THE UNITED
STATES, CONGRESS MIGHT HAVE BEEN EXPECTED TO DECLARE UNLAWFUL, IN
ADDITION, THE RECEIPT OF FIREARMS NEVER PREVIOUSLY REGISTERED; INDEED,
THE RECEIPT OF THE FIREARM IS, UNDER THAT CONSTRUCTION, THE CENTRAL
ELEMENT OF THE OFFENSE.  CONGRESS' PREFERENCE IN THE REGISTRATION
CLAUSE FOR "POSSESSION," RATHER THAN "RECEIPT," IS SATISFACTORILY
EXPLICABLE ONLY IF PETITIONER'S CONSTRUCTION OF SEC. 5851 IS ADOPTED. 

THIRD, AND MORE IMPORTANT, WE FIND IT SIGNIFICANT THAT THE OFFENSE
DEFINED BY SEC. 5851 IS THE POSSESSION OF A FIREARM WHICH HAS NOT BEEN
REGISTERED "AS REQUIRED BY SECTION 5841."  IN THE ABSENCE OF PERSUASIVE
EVIDENCE TO THE CONTRARY, THE CLAUSE'S FINAL WORDS SUGGEST STRONGLY
THAT THE PERMIETER OF THE OFFENSE WHICH IT CREATES IS TO BE MARKED BY
THE TERMS OF THE REGISTRATION REQUIREMENT IMPOSED BY SEC. 5841.  IN
TURN, SEC. 5841 INDICATES QUITE PRECISELY THAT "(EVERY PERSON
POSSESSING A FIREARM" MUST, UNLESS EXCUSED BY THE SECTION'S EXCEPTION,
REGISTER HIS POSSESSION WITH THE SECRETARY OR HIS DELEGATE.  MOREOVER,
THE TREASURY REGULATIONS ARE ENTIRELY UNEQUIVOCAL; THEY SPECIFICALLY
PROVIDE THAT "(EVERY PERSON IN THE UNITED STATES POSSESSING A FIREARM
(A) NOT REGISTERED TO HIM, . . . MUST EXECUTE AN APPLICATION FOR THE
REGISTRATION OF SUCH FIREARM.  . . . "  TREAS. REG. SEC. 179.120. 

THE PERTINENT LEGISLATIVE HISTORY OFFERS ADDITIONAL ASSISTANCE, AND
POINTS AGAINST THE GOVERNMENT'S CONSTRUCTION.  THE REGISTRATION CLAUSE
WAS INSERTED INTO SEC. 5851 BY THE EXCISE TAX TECHNICAL CHANGES ACT OF
1958.  72 STAT. 1428.  THE TWO COMMITTEE REPORTS INDICATE, IN IDENTICAL
TERMS, /8/ THAT THE EXISTING SECTION WAS THOUGHT INADEQUATE BECAUSE,
ALTHOUGH IT DEFINED AS AN UNLAWFUL ACT THE POSSESSION OF ANY FIREARM
WHICH HAD BEEN MADE OR TRANSFERRED IN VIOLATION OF THE FIREARMS ACT, IT
FAILED "TO SO DEFINE THE POSSESSION OF AN UNREGISTERED FIREARM."  H.R.
REP. NO. 481, 85TH CONG,, 1ST SESS., 195; S. REP. NO. 2090, 85TH CONG.,
2D SESS., 212.  THE SECTION AS AMENDED "SPECIFICALLY DEFINES SUCH
POSSESSION OF AN UNREGISTERED FIREARM AS AN UNLAWFUL ACT."  IBID.  IT
IS USEFUL TO NOTE THAT THE COMMITTEES DID NOT SUGGEST THAT THE FAILURE
TO REGISTER MUST HAVE PRECEDED THE ACQUISITION OF POSSESSION.  FURTHER,
THE REPORTS INDICATE THAT THE PROPOSED AMENDMENT WAS INTENDED TO MAKE
AVAILABLE IN PROSECUTIONS FOR POSSESSION OF AN UNREGISTERED FIREARM THE
PRESUMPTION ALREADY CONTAINED IN SEC. 5851; THEY CONCLUDE THAT THE
"PRIMARY PURPOSE OF THIS CHANGE IS TO SIMPLIFY AND CLARIFY THE LAW AND
TO AID IN PROSECUTION."  H.R. REP. NO. 481, SUPRA, AT 196; S. REP. NO.
2090, SUPRA, AT 212. 

WE INFER THAT THE AMENDMENT WAS THOUGHT TO HAVE TWO PURPOSES. 
FIRST, IT WOULD COMPLETE THE SERIES OF SUPPLEMENTARY OFFENSES CREATED
BY SEC. 5851, BY ADDING TO THOSE PREMISED ON A MAKING OR TRANSFER ONE
BOTTOMED ON A FAILURE TO REGISTER.  SECOND, IT WOULD FACILITATE THE
PROSECUTION OF FAILURES TO REGISTER BY PERMITTING THE USE OF THE
PRESUMPTION INCLUDED IN SEC. 5851.  IT WOULD THUS "AID IN PROSECUTION"
OF CONDUCT ALSO MADE UNLAWFUL BY SEC; 5841.  BOTH THESE PURPOSES ARE
FULLY CONSISTENT WITH THE CONSTRUCTION OF SEC. 5851 URGED BY
PETITIONER; BUT ONLY THE FIRST OFFERS ANY SUPPORT TO THE POSITION
SUGGESTED BY THE UNITED STATES. 

WE ARE UNABLE TO ESCAPE THE CONCLUSION THAT CONGRESS INTENDED THE
REGISTRATION CLAUSE OF SEC. 5851 TO INCORPORATE THE REQUIREMENTS OF
SEC. 5841, BY DECLARING UNLAWFUL THE POSSESSION OF ANY FIREARM WHICH
HAS NOT BEEN REGISTERED BY ITS POSSESSOR, IN CIRCUMSTANCES IN WHICH
SEC. 5841 IMPOSES AN OBLIGATION TO REGISTER.  THE ELEMENTS OF THE
OFFENSES CREATED BY THE TWO SECTIONS ARE THEREFORE IDENTICAL.  THIS
DOES NOT, HOWEVER, FULLY RESOLVE THE QUESTION OF WHETHER ANY HAZARDS OF
INCRIMINATION WHICH STEM FROM THE REGISTRATION REQUIREMENT IMPOSED BY
SEC. 5841 MUST BE UNDERSTOOD ALSO TO INHERE IN PROSECUTIONS UNDER SEC.
5851.  TWO ADDITIONAL DISTINCTIONS BETWEEN THE OFFENSES HAVE BEEN
SUGGESTED, AND WE MUST EXAMINE THEM.     FIRST, IT HAS BEEN SAID THAT
THE OFFENSES DIFFER IN EMPHASIS, IN THAT SEC. 5851 CHIEFLY PUNISHES
POSSESSION, WHILE SEC. 5841 PUNISHES A FAILURE TO REGISTER.  CF. FRYE
V. UNITED STATES, 315 F.2D 491, 494; CATELLANO V. UNITED STATES, 350
F.2D 852, 854.  WE FIND THIS SUPPOSED DISTINCTION ENTIRELY
UNPERSUASIVE, FOR, AS WE HAVE FOUND, THE POSSESSION OF A FIREARM AND A
FAILURE TO REGISTER ARE EQUALLY FUNDAMENTAL INGREDIENTS OF BOTH
OFFENSES.  SECOND, IT HAS BEEN SUGGESTED THAT SEC. 5841 CREATES A
"STATUS OF UNLAWFUL POSSESSION"  WHICH, IF ASSUMED BY AN INDIVIDUAL,
DENIES TO HIM THE PROTECTION OF THE CONSTITUTIONAL PRIVILEGE. 
CASTELLANO V. UNITED STATES, SUPRA, AT 854.  IT HAS EVIDENTLY BEEN
THOUGHT TO FOLLOW THAT THE PRIVILEGE MAY BE CLAIMED IN PROSECUTIONS
UNDER SEC. 5841, BUT NOT IN THOSE UNDER SEC. 5851.  THIS IS NO LESS
UNPERSUASIVE; FOR REASONS DISCUSSED IN MARCHETTI V. UNITED STATES,
DECIDED TODAY, ANTE, AT 51-52, WE DECLINE TO HOLD THAT THE PERFORMANCE
OF AN UNLAWFUL ACT, EVEN IF THERE EXISTS A STATUTORY CONDITION THAT ITS
COMMISSION CONSTITUTES A WAIVER OF THE CONSTITUTIONAL PRIVILEGE,
SUFFICES TO DEPRIVE AN ACCUSED OF THE PRIVILEGE'S PROTECTION.  WE HOLD
THAT PETITIONER'S CONVICTION UNDER THE REGISTRATION CLAUSE OF SEC. 5851
IS NOT PROPERLY DISTINGUISHABLE FROM A CONVICTION UNDER SEC. 5841 FOR
FAILURE TO REGISTER, AND THAT BOTH OFFENSES MUST BE DEEMED SUBJECT TO
ANY CONSTITUTIONAL DEFICIENCIES ARISING UNDER THE FIFTH AMENDMENT FROM
THE OBLIGATION TO REGISTER. 

        IV. 

WE MUST NOW CONSIDER WHETHER, AS PETITIONER CONTENDS, SATISFACTION
OF HIS OBLIGATION TO REGISTER WOULD HAVE COMPELLED HIM TO PROVIDE
INFORMATION INCRIMINATING HIMSELF.  /9/  WE MUST FIRST MARK THE TERMS
OF THE REGISTRATION REQUIREMENT.  THE OBLIGATION TO REGISTER IS
CONDITIONED SIMPLY UPON POSSESSION OF A FIREARM, WITHIN THE MEANING OF
SEC. 5848(1).  NOT EVERY POSSESSOR OF A FIREARM MUST, HOWEVER,
REGISTER; ONE WHO MADE THE FIREARM, OR ACQUIRED IT BY TRANSFER OR
IMPORTATION, NEED NOT REGISTER IF THE ACT'S PROVISIONS AS TO TRANSFERS,
MAKINGS, AND IMPORTATIONS "WERE COMPLIED WITH."  IF THOSE REQUIREMENTS
WERE NOT MET, OR IF THE POSSESSOR DID NOT MAKE THE FIREARM, AND DID NOT
ACQUIRE IT BY TRANSFER OR IMPORTATION, HE MUST FURNISH THE SECRETARY OF
THE TREASURY WITH HIS NAME, ADDRESS, THE PLACE WHERE THE FIREARM IS
USUALLY KEPT AND THE PLACE OF HIS BUSINESS OR EMPLOYMENT.  FURTHER, HE
MUST INDICATE HIS DATE OF BIRTH, SOCIAL SECURITY NUMBER, AND WHETHER HE
HAS EVER BEEN CONVICTED OF A FELONY.  FINALLY, HE MUST PROVIDE A FULL
DESCRIPTION OF THE FIREARM.  SEE 26 U.S.C. 5841; TREAS. REG. SEC.
179.120; INTERNAL REVENUE SERVICE FORM 1 (FIREARMS). 

THE REGISTRATION REQUIREMENT IS THUS DIRECTED PRINCIPALLY AT THOSE
PERSONS WHO HAVE OBTAINED POSSESSION OF A FIREARM WITHOUT COMPLYING
WITH THE ACT'S OTHER REQUIREMENTS, AND WHO THEREFORE ARE IMMEDIATELY
THREATENED BY CRIMINAL PROSECUTIONS UNDER SECS. 5851 AND 5861.  THEY
ARE UNMISTAKABLY PERSONS "INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES." 
ALBERTSON V. SACB, 382 U.S. 70, 79.  IT IS TRUE, AS THE UNITED STATES
EMPHASIZES, THAT REGISTRATION IS NOT INVARIABLY INDICATIVE OF A
VIOLATION OF THE ACT'S REQUIREMENTS; THERE ARE SITUATIONS, WHICH THE
UNITED STATES ITSELF STYLES "UNCOMMON,"  /10/  IN WHICH A POSSESSOR WHO
HAS NOT VIOLATED THE ACT'S OTHER PROVISIONS IS OBLIGED TO REGISTER. 
/11/  NONETHELESS, THE CORRELATION BETWEEN OBLIGATIONS TO REGISTER AND
VIOLATIONS CAN ONLY BE REGARDED AS EXCEEDINGLY HIGH, AND A PROSPECTIVE
REGISTRANT REALISTICALLY CAN EXPECT THAT REGISTRATION WILL
SUBSTANTIALLY INCREASE THE LIKELIHOOD OF HIS PROSECUTION.  MOREOVER, HE
CAN REASONABLY FEAR THAT THE POSSESSION ESTABLISHED BY HIS REGISTRATION
WILL FACILITATE HIS PROSECUTION UNDER THE MAKING AND TRANSFER CLAUSES
OF SEC. 5851.  IN THESE CIRCUMSTANCES, IT CAN SCARCELY BE SAID THAT THE
RISKS OF CRIMINAL PROSECUTION CONFRONTED BY PROSPECTIVE REGISTRANTS ARE
"REMOTE POSSIBILITIES OUT OF THE ORDINARY COURSE OF LAW," HEIKE V.
UNITED STATES, 227 U.S. 131, 144; YET THEY ARE COMPELLED, ON PAIN OF
CRIMINAL PROSECUTION, TO PROVIDE TO THE SECRETARY BOTH A FORMAL
ACKNOWLEDGMENT OF THEIR POSSESSION OF FIREARMS, AND SUPPLEMENTARY
INFORMATION LIKELY TO FACILITATE THEIR ARREST AND EVENTUAL CONVICTION. 
THE HAZARDS OF INCRIMINATION CREATED BY THE REGISTRATION REQUIREMENT
CAN THUS ONLY BE TERMED "REAL AND APPRECIABLE."  REG. V. BOYES, 1 B.&
S. 311, 330; BROWN V. WALKER, 161 U.S. 591, 599-600. 

WE ARE, HOWEVER, URGED BY THE UNITED STATES, FOR VARIOUS DISPARATE
REASONS, TO AFFIRM PETITIONER'S CONVICTION.  IT IS FIRST SUGGESTED THAT
THE REGISTRATION REQUIREMENT IS A VALID EXERCISE OF THE TAXING POWERS,
IN THAT IT IS CALCULATED MERELY TO ASSURE NOTICE TO THE TREASURY OF ALL
TAXABLE FIREARMS.  WE DO NOT DOUBT, AS WE HAVE REAPEATEDLY INDICATED,
/12/  THAT THIS COURT MUST GIVE DEFERENCE TO CONGRESS' TAXING POWERS,
AND TO MEASURES REASONABLY INCIDENTAL TO THEIR EXERCISE; BUT WE ARE NO
LESS OBLIGED TO HEED THE LIMITATIONS PLACED UPON THOSE POWERS BY THE
CONSTITUTION'S OTHER COMMANDS.  WE ARE FULLY COGNIZANT OF THE
TREASURY'S NEED FOR ACCURATE AND TIMELY INFORMATION, BUT OTHER METHODS,
ENTIRELY CONSISTENT WITH CONSTITUTIONAL LIMITATIONS, EXIST BY WHICH
SUCH INFORMATION MAY BE OBTAINED.  SEE GENERALLY COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 585.  SEE ALSO ADAMS V. MARYLAND, 347 U.S.
179; MURPHY V. WATERFRONT COMMISSION, 378 U.S. 52.  ACCORDINGLY,
NOTHING WE DO TODAY WILL PREVENT THE EFFECTIVE REGULATION OR TAXATION
BY CONGRESS OF FIREARMS. 

NONETHELESS, THESE STATUTORY PROVISIONS, AS NOW WRITTEN, CANNOT BE
BROUGHT WITHIN ANY OF THE SITUATIONS IN WHICH THE COURT HAS HELD THAT
THE CONSTITUTIONAL PRIVILEGE DOES NOT PREVENT THE USE BY THE UNITED
STATES OF INFORMATION OBTAINED IN CONNECTION WITH REGULATORY PROGRAMS
OF GENERAL APPLICATION.  SEE UNITED STATES V. SULLIVAN, 274 U.S. 259;
SHAPIRO V. UNITED STATES, 335 U.S. 1.  FOR REASONS GIVEN IN MARCHETTI
V. UNITED STATES, SUPRA, AND GROSSO V. UNITED STATES, ANTE, P. 62, WE
HAVE CONCLUDED THAT THE POINTS OF SIGNIFICANT DISSIMILARITY BETWEEN
THESE CIRCUMSTANCES AND THOSE IN SHAPIRO AND SULLIVAN PRECLUDE ANY
PROPER APPLICATION OF THOSE CASES HERE.  THE QUESTIONS PROPOUNDED BY
SEC. 5841, LIKE THOSE AT ISSUE IN ALBERTSON, SUPRA, ARE "DIRECTED AT A
HIGHLY SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES"; THEY
CONCERN, NOT "AN ESSENTIALLY NON-CRIMINAL AND REGULATORY AREA OF
INQUIRY," BUT "AN AREA PERMEATED WITH CRIMINAL STATUTES."  382 U.S.,AT
79.  THERE ARE, MOREOVER, NO RECORDS OR OTHER DOCUMENTS HERE TO WHICH
ANY "PUBLIC ASPECTS" MIGHT REASONABLY BE SAID TO HAVE ATTACHED. 
COMPARE SHAPIRO V. UNITED STATES, SUPRA, AT 34; AND MARCHETTI V. UNITED
STATES, SUPRA. 

THE UNITED STATES NEXT EMPHASIZES THAT PETITIONER HAS CONSISTENTLY
CONTENDED THAT SECS. 5841 AND 5851 ARE UNCONSTITUTIONAL ON THEIR FACE;
IT URGES THAT THIS CONTENTION IS FORECLOSED BY THE INCLUSION IN THE
REGISTRATION REQUIREMENT OF SITUATIONS IN WHICH THE OBLIGATION TO
REGISTER CANNOT PRODUCE INCRIMINATING DISCLOSURES.  WE RECOGNIZE THAT
THERE ARE A NUMBER OF APPARENTLY UNCOMMON CIRCUMSTANCES IN WHICH
REGISTRATION IS REQUIRED OF ONE WHO HAS NOT VIOLATED THE FIREARMS ACT;
THE UNITED STATES POINTS CHIEFLY TO THE SITUATION OF A FINDER OF A LOST
OR ABANDONED FIREARM.  /13/  COMPARE UNITED STATES V. FORGETT, 349 F.2D
601.  WE AGREE THAT THE EXISTENCE OF SUCH SITUATIONS MAKES IT
INAPPROPRIATE, IN THE ABSENCE OF EVIDENCE THAT THE EXERCISE OF
PROTECTED RIGHTS WOULD OTHERWISE BE HAMPERED, TO DECLARE THESE SECTIONS
IMPERMISSIBLE ON THEIR FACE.  IN STEAD, IT APPEARS, FROM THE EVIDENCE
NOW BEFORE US, THAT THE RIGHTS OF THOSE SUBJECT TO THE ACT WILL BE
FULLY PROTECTED IF A PROPER CLAIM OF PRIVILEGE IS UNDERSTOOD TO PROVIDE
A FULL DEFENSE TO ANY PROSECTUION EITHER FOR FAILURE TO REGISTER UNDER
SEC. 5841 OR, UNDER SEC. 5851, FOR POSSESSION OF A FIREARM WHICH HAS
NOT BEEN REGISTERED. 

FINALLY, WE ARE ASKED TO AVOID THE CONSTITUTIONAL DIFFICULTIES WHICH
WE HAVE FOUND IN SECS. 5841 AND 5851 BY IMPOSING RESTRICTIONS UPON THE
USE BY STATE AND FEDERAL AUTHORITIES OF INFORMATION OBTAINED AS A
CONSEQUENCE OF THE REGISTRATION REQUIREMENT.  WE NOTE THAT THE
PROVISIONS OF 26 U.S.C. 6107 /14/  ARE APPLICABLE TO THE SPECIAL
OCCUPATIONAL TAXES IMPOSED BY SEC. 5801, ALTHOUGH NOT, APPARENTLY, TO
THE MAKING AND TRANSFER TAXES IMPOSED BY SECS. 5811 AND 5821.  IN THESE
CIRCUMSTANCES, WE DECLINE, FOR REASONS INDICATED IN MARCHETTI, SUPRA,
AND GROSSO, SUPRA, TO IMPOSE THE RESTRICTIONS URGED BY THE UNITED
STATES. 

WE HOLD THAT A PROPER CLAIM OF THE CONSTITUTIONAL PRIVILEGE AGAINST
SELF-INCRIMINATION PROVIDES A FULL DEFENSE TO PROSECUTIONS EITHER FOR
FAILURE TO REGISTER A FIREARM UNDER SEC. 5841 OR FOR POSSESSION OF AN
UNREGISTERED FIREARM UNDER SEC. 5851. 

        V. 

IT REMAINS ONLY TO DETERMINE THE APPROPRIATE DISPOSITION OF THIS
CASE.  PETITIONER HAS SEASONABLY AND CONSISTENTLY ASSERTED A CLAIM OF
PRIVILEGE, BUT THE COURTS BELOW, BELIEVING THE PRIVILEGE INAPPLICABLE
TO PROSECUTIONS UNDER SEC. 5851, EVIDENTLY DID NOT ASSESS THE CLAIM'S
MERITS.  IT WOULD THEREFORE ORDINARILY BE NECESSARY TO REMAND THE CAUSE
TO THE DISTRICT COURT, WITH INSTRUCTIONS TO EXAMINE THE MERITS OF THE
CLAIM.  WE NOTE, HOWEVER, THAT THERE CAN BE NO SUGGESTION HERE THAT
PETITIONER HAS WAIVED HIS PRIVILEGE, AND THAT, MOREOVER, THE UNITED
STATES HAS CONCEDED THAT PETITIONER'S PRIVILEGE AGAINST SELF
INCRIMINATION MUST BE FOUND TO HAVE BEEN IMPERMISSIBLY INFRINGED IF HIS
CONTENTIONS AS TO THE PROPER CONSTRUCTION OF SECS. 5851 AND 5841 ARE
ACCEPTED.  BRIEF FOR THE UNITED STATES 8.  ACCORDINGLY, THE DISTRICT
COURT WOULD BE OBLIGED IN ANY ADDITIONAL PROCEEDING TO CONCLUDE THAT
"THERE IS REASONABLE GROUND TO APPREHEND DANGER TO THE WITNESS FROM HIS
BEING COMPELLED TO ANSWER."  REG; V. BOYES, SUPRA, AT 330.  IT FOLLOWS
THAT ANY PROCEEDING IN THE DISTRICT COURT MUST INEVITABLY RESULT IN THE
REVERSAL OF PETITIONER'S CONVICTION.  WE HAVE PLENARY AUTHORITY UNDER
28 U.S.C. 2106 TO MAKE SUCH DISPOSITION OF THE CASE "AS MAY BE JUST
UNDER THE CIRCUMSTANCES."  SEE YATES V. UNITED STATES, 354 U.S. 298,
327-331; GROSSO V. UNITED STATES, SUPRA.  IT WOULD BE NEITHER JUST NOR
APPROPRIATE TO REQUIRE THE PARTIES AND THE DISTRICT COURT TO COMMENCE
AN ENTIRELY NEEDLESS ADDITIONAL PROCEEDING.  ACCORDINGLY, THE JUDGMENT
OF THE COURT OF APPEALS IS

              REVERSED. 

/1/  PETITIONER'S MOTION ASSERTED MERELY THAT SEC. 5851 WAS
"UNCONSTITUTIONAL," AND THE ORDER DENYING THE MOTION DOES NOT INDICATE
MORE PRECISELY THE SUBSTANCE OR PETITIONER'S CONTENTIONS.  HIS
SUBSEQUENT ARGUMENTS, BOTH IN THE COURTS BELOW AND HERE, HAVE, HOWEVER,
CONSISTENTLY ASSERTED A CLAIM OF THE CONSTITUTIONAL PRIVILEGE.  NO
SUGGESTION IS MADE BY THE GOVERNMENT THAT THE CLAIM OF PRIVILEGE WAS
NOT SUFFICIENTLY MADE. 

/2/  PETITIONER'S PLEA OF GUILTY DID NOT, OF COURSE, WAIVE HIS
PREVIOUS CLAIM OF THE CONSTITUTIONAL PRIVILEGE.  SEE, E.G., UNITED
STATES V. URY, 106 F.2D 28. 

/3/  THE SECTION PROVIDES THAT "IT SHALL BE UNLAWFUL FOR ANY PERSON
TO RECEIVE OR POSSESS ANY FIREARM WHICH HAS AT ANY TIME BEEN
TRANSFERRED IN VIOLATION OF SECTIONS 5811, 5812(B), 5813, 5814, 5844,
OR 5846, OR SHICH HAS AT ANY TIME BEEN MADE IN VIOLATION OF SECTION
5821, OR TO POSSESS ANY FIREARM WHICH HAS NOT BEEN REGISTERED AS
REQUIRED BY SECTION 5841.  WHENEVER ON TRIAL FOR A VIOLATION OF THIS
SUCH FIREARM, SUCH POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO
AUTHORIZE CONVICTION, UNLESS THE DEFENDANT EXPLAINS SUCH POSSESSION TO
THE SATISFACTION OF THE JURY." 

/4/  THE VIEWS OF A SUBSEQUENT CONGRESS OF COURSE PROVIDE NO
CONTROLLING BASIS FROM WHICH TO INFER THE PURPOSES OF AN EARLIER
CONGRESS.  SEE RAINWATER V. UNITED STATES, 356 U.S. 590, 593; UNITED
STATES V. PRICE, 361 U.S. 304, 313.  NONETHELESS, IT IS PERTINENT TO
NOTE THAT THE COMMITTEE ON WAYS AND MEANS OF THE HOUSE OF
REPRESENTATIVES, WHILE REPORTING IN 1959 ON CERTAIN PROPOSED AMENDMENTS
TO THE ACT, STATED THAT THE "PRIMARY PURPOSE OF (THE FIREARMS ACT) WAS
TO MAKE IT MORE DIFFICULT FOR THE GANGSTER ELEMENT TO OBTAIN CERTAIN
TYPES OF WEAPONS.  THE TYPE OF WEAPON WITH WHICH THESE PROVISIONS ARE
CONCERNED ARE THE TYPES IT WAS THOUGHT WOULD BE USED PRIMARILY BY THE
GANGSTER-TYPE ELEMENT."  H.R. REP. NO. 914, 86TH CONG., 1ST SESS;, 2. 

/5/  THE SECTION PROVIDES THAT "EVERY PERSON POSSESSING A FIREARM
SHALL REGISTER, WITH THE SECRETARY OR HIS DELEGATE, THE NUMBER OR OTHER
MARK IDENTIFYING SUCH FIREARM, TOGETHER WITH HIS NAME, ADDRESS, PLACE
WHERE SUCH FIREARM IS USUALLY EKPT, AND PLACE OF BUSINESS OR
EMPLOYMENT, AND, IF SUCH PERSON IS OTHER THAN A NATURAL PERSON, THE
NAME AND HOME ADDRESS OF AN EXECUTIVE OFFICER THEREOF.  NO PERSON SHALL
BE REQUIRED TO REGISTER UNDER THIS SECTION WITH RESPECT TO A FIREARM
WHICH SUCH PERSON ACQUIRED BY TRANSFER OR IMPORTATION OR WHICH SUCH
PERSON MADE, IF PROVISIONS OF THIS CHAPTER APPLIED TO SUCH TRANSFER,
IMPORTATION, OR MAKING, AS THE CASE MAY BE, AND IF THE PROVISIONS WHICH
APPLIED THERETO WERE COMPLIED WITH." 

/6/  INDEED, SO MUCH IS RECOGNIZED BY THE GOVERNMENT; IT HAS STATED
THAT "(WE CONCEDE THAT IF PETITIONER'S READING OF THE TWO PROVISIONS
WERE RIGHT . . . PETITIONER'S CONVICTION UNDER SECTION 5851 WOULD NOT
BE VALID."  BRIEF FOR THE UNITED STATES 8.     /7/  THE GOVERNMENT'S
POSITION IS GENERALLY SUPPORTED BY SEVERAL CASES IN THE COURTS OF
APPEALS.  SEE, IN ADDITION TO THE OPINION BELOW, FRYE V. UNITED STATES,
315 F.2D 491; STARKS V. UNITED STATES, 315 F.2D 45; MARES V. UNITED
STATES, 319 F.2D 71; SIPES V. UNITED STATES, 321 F.2D 174; TAYLOR V.
UNITED STATES, 333 F.2D 721; CASTELLANO V. UNITED STATES, 350 F.2D 852;
PRUITT V. UNITED STATES, 364 F.2D 826; DECKER V. UNITED STATES, 378
F.2D 245.  NONE OF THESE CASES, HOWEVER, UNDERTOOK AN EXTENDED
EXAMINATION OF THE RELATIONSHIP BETWEEN SECS. 5851 AND 5841.  COMPARE
LOVELACE V. UNITED STATES, 357 F.2D 306, 309; AND MANSFIELD, THE
ALBERTSON CASE:  CONFLICT BETWEEN THE PRIVILEGE AGAINST SELF
INCRIMINATION AND THE GOVERNMENT'S NEED FOR INFORMATION, 1966
SUP.CT.REV.  103, 158-159, N. 95. 

/8/  THE LANGUAGE IN THE REPORTS WAS EVIDENTLY TAKEN WITHOUT CHANGE
OR ELABORATION FROM THE RECOMMENDATIONS SUBMITTED TO THEHOUSE COMMITTEE
ON WAYS AND MEANS BY THE TREASURY.  SEE HEARINGS BEFORE HOUSE COMMITTEE
ON WAYS AND MEANS ON EXCISE TAX TECHNICAL AND ADMINISTRATIVE PROBLEMS,
84TH CONG., 1ST SESS., 185, 211. 

/9/  WE NOTE THAT SEC. 5841 HAS SEVERAL TIMES BEEN HELD TO REQUIRE
INCRIMINATING DISCLOSURES, IN VIOLATION OF THE FIFTH AMENDMENT
PRIVILEGE AGAINST SELF-INCRIMINATION.  SEE RUSSELL V. UNITED STATES,
306 F.2D 402; DUGAN V. UNITED STATES, 341 F.2D 85; MCCANN V. UNITED
STATES, 217 F.SUPP.  751; UNITED STATES V. FLEISH, 227 F.SUPP.  967. 
SEE ALSO LOVELACE V. UNITED STATES, SUPRA, AT 309. 

/10/  IN PARTICULAR, THE UNITED STATES EMPHASIZES THE POSITION OF A
FINDER OF A LOST OR ABANDONED FIREARM.  BRIEF FOR THE UNITED STATES
20. 

/11/  WE MUST NOTE, HOWEVER, THAT CERTAIN OF THESE PROSPECTIVE
REGISTRANTS MIGHT BE THREATENED BY PROSECUTION UNDER STATE LAW FOR
POSSESSION OF FIREARMS, OR SIMILAR OFFENSES.  IT IS POSSIBLE THAT SUCH
PERSONS WOULD BE OBLIGED, IF THEY REGISTERED IN COMPLIANCE WITH SEC.
5841, TO PROVIDE INFORMATION INCRIMINATING TO THEMSELVES.  SUCH HAZARDS
WOULD, OF COURSE, SUPPORT A PROPER CLAIM OF PRIVILEGE.  SEE MALLOY V.
HOGAN, 378 U.S. 1.  FOR ILLUSTRATIONS OF STATE STATUTES UNDER WHICH
SUCH PROSECUTIONS MIGHT OCCUR, SEE CONN. GEN. STAT. REV. SEC. 53-202
(1958); DEL. CODE ANN., TIT. 11, SEC. 465 (1953); HAWAII REV. LAWS SEC.
157-8 (1955); IOWA CODE SEC. 696.1 (1966); KAN; STAT. ANN. SEC. 21-2601
(1964); LA. REV. STAT. SEC. 40:1752 (1950); MINN. STAT. SEC. 609.67
(1965); N.J. REV. STAT., TIT. 2A, SEC; 151-50 (1953).  WE HAVE
DISCOVERED NO STATE STATUTE UNDER WHICH THE PRESENT PETITIONER MIGHT
HAVE BEEN SUBJECT TO PROSECTUTION FOR ACTS REGISTRABLE UNDER SEC. 5841,
AND HE HAS NOT CONTENDED THAT REGISTRATION WOULD HAVE INCRIMINATED HIM
UNDER STATE LAW. 

/12/  SEE, FOR EXAMPLE, SONZINSKY V. UNITED STATES, 300 U.S. 506;
MARCHETTI V. UNITED STATES, SUPRA. 

/13/  AGAIN, WE NOTE THAT THESE REGISTRATNS MIGHT BE CONFRONTED BY
HAZARDS OF PROSECUTION UNDER STATE LAW, AND THAT THOSE HAZARDS MIGHT
SUPPORT A PROPER CLAIM OF PRIVILEGE.  SEE SUPRA, N. 11. 

/14/  SECTION 6107 PROVIDES THAT "IN THE PRINCIPAL INTERNAL REVENUE
OFFICE IN EACH INTERNAL REVENUE DISTRICT THERE SHALL BE KEPT, FOR
PUBLIC INSPECTION, AN ALPHABETICAL LIST OF THE NAMES OF ALL PERSONS WHO
HAVE PAID SPECIAL TAXES UNDER SUBTITLE D OR E WITHIN SUCH DISTRICT. 
SUCH LIST SHALL BE PREPARED AND KEPT PURSUANT TO REGULATIONS PRESCRIBED
BY THE SECRETARY OR HIS DELEGATE, AND SHALL CONTAIN THE TIME, PLACE,
AND BUSINESS FOR WHICH SUCH SPECIAL TAXES HAVE BEEN PAID, AND UPON
APPLICATION OF ANY PROSECUTING OFFICER OF ANY STATE, COUNTY, OR
MUNICIPALITY THERE SHALL BE FURNISHED TO HIM A CERTIFIED COPY THEREOF,
AS OF A PUBLIC RECORD, FOR WHICH A FEE OF $1 FOR EACH 100 WORDS OR
FRACTION THEREOF IN THE COPY OR COPIES SO REQUESTED MAY BE CHARGED." 
THE SPECIAL TAXES TO WHICH THE SECTION REFERS INCLUDE THOSE IMPOSED BY
26 U.S.C. 5801. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

FOR REASONS STATED IN MY DISSENT IN MARCHETTI V. UNITED STATES AND
GROSSO V. UNITED STATES, ANTE, P. 77, I CANNOT AGREE WITH THE RESULT BY
THE COURT IN THIS CASE. 

CHARLES ALAN WRIGHT ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON
THE BRIEF WAS EARNEST E. FIGARI, JR. 

HARRIS WEINSTEIN ARGUED THE CAUSE FOR THE UNITED STATES.  WITH HIM
ON THE BRIEF WERE ACTING SOLICITOR GENERAL SPRITZER, ASSISTANT ATTORNEY
GENERAL VINSON, BEATRICE ROSENBERG AND KIRBY W. PATTERSON. 
..END :















PROVIDENT BANK V. PATTERSON, 390 U.S. 102 


       PROVIDENT TRADESMENS BANK & TRUST CO., ADMINISTRATOR V.

           PATTERSON, ADMINISTRATOR, ET AL.

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           THIRD CIRCUIT. 

        NO. 28.  ARGUED NOVEMBER 6-7, 1967.-- DECIDED JANUARY 29,

           1968. 


AN AUTOMOBILE OWNED BY DUTCHER, DRIVEN BY CIONCI, TO WHOM DUTCHER HAD
GIVEN THE KEYS, IN WHICH LYNCH AND HARRIS WERE PASSENGERS, COLLIDED
WITH A TRUCK DRIVEN BY SMITH.  CIONCI, LYNCH AND SMITH WERE KILLED AND
HARRIS WAS INJURED.  THE ADMINISTRATOR OF LYNCH'S ESTATE, THE
PETITIONER HERE, SUED CIONCI'S ESTATE IN A DIVERSITY ACTION WHICH WAS
SETTLED FOR $50,000, WHICH WAS NOT PAID AS CIONCI'S ESTATE WAS
PENNILESS.  SMITH'S ADMINISTRATRIX AND HARRIS EACH BROUGHT A STATE
COURT ACTION AGAINST CIONCI'S ESTATE, DUTCHER, AND LYNCH'S ESTATE, BUT
THESE SUITS HAVE NEVER GONE TO TRIAL.  DUTCHER HAD AN AUTOMOBILE POLICY
WITH LUMBERMENS MUTUAL CASUALTY CO., A RESPONDENT HERE, WHICH HAD A
LIMIT OF $100,000 FOR AN ACCIDENT.  THE POLICY COVERED DUTCHER'S
POTENTIAL LIABILITY AS CIONCI'S "PRINCIPAL" AND THE DIRECT LIABILITY OF
ANYONE DRIVING THE CAR WITH DUTCHER'S PERMISSION.  LUMBERMENS HAD
DECLINED TO DEFEND IN PETITIONER'S ACTION AGAINST CIONCI'S ESTATE,
BELIEVING THAT CIONCI LACKED PERMISSION AND THUS WAS NOT COVERED BY THE
POLICY.  PETITIONER THEN BROUGHT THIS DIVERSITY ACTION FOR A
DECLARATION THAT CIONCI'S USE OF THE CAR HAD BEEN "WITH PERMISSION" OF
DUTCHER, NAMING AS DEFENDANTS LUMBERMENS AND CIONCI'S ESTATE.  THE
STATE-COURT TORT PLAINTIFFS WERE JOINED AS PLAINTIFFS, BUT DUTCHER, A
PENNSYLVANIA RESIDENT, AS WERE ALL THE PLAINTIFFS, WAS NOT JOINED
EITHER AS PLAINTIFF OR DEFENDANT, A FACT NOT ADVERTED TO AT TRIAL.  THE
DISTRICT COURT RULED THAT UNDER PENNSYLVANIA LAW THE DRIVER IS PRESUMED
TO HAVE THE OWNER'S PERMISSION, AND THE STATE'S "DEAD MAN RULE" DID NOT
PERMIT DUTCHER TO TESTIFY IN THE TWO ESTATE CLAIMS AS HIS INTEREST WAS
ADVERSE.  THE COURT DIRECTED VERDICTS IN FAVOR OF THE TWO ESTATES. 
DUTCHER WAS ALLOWED TO TESTIFY AS AGAINST HARRIS, BUT THE JURY FOUND
THAT CIONCI HAD HAD PERMISSION AND AWARDED A VERDICT TO HARRIS. 
LUMBERMENS APPEALED ON STATE-LAW GROUNDS, WHICH THE COURT OF APPEALS
DID NOT REACH.  THAT COURT REVERSED ON THE GROUNDS THAT DUTCHER WAS AN
INDISPENSABLE PARTY, THAT THE RIGHT OF ANY PERSON WHO "MAY BE AFFECTED"
BY THE JUDGMENT TO BE JOINED IS A "SUBSTANTIVE" RIGHT, UNAFFECTED BY
RULE 19 OF THE FED. RULES OF CIV. PROC., AND THAT SINCE DUTCHER COULD
NOT BE JOINED WITHOUT DESTROYING DIVERSITY JURISDICTION, THE ACTION HAD
TO BE DISMISSED.  THE COURT ALSO CONCLUDED THAT SINCE THE STATE-COURT
ACTIONS "PRESENTED THE MOOTED QUESTION AS TO THE COVERAGE OF THE
POLICY," THE ISSUE HERE, THE DISTRICT COURT SHOULD HAVE DECLINED
JURISDICTION TO ALLOW THE STATE COURTS TO SETTLE THIS QUESTION OF STATE
LAW.  HELD: 

1.  ON THE BASIS OF THE RECORD AND APPLYING THE "EQUITY AND GOOD
CONSCIENCE" TEST OF RULE 19(B), THE COURT OF APPEALS ERRED IN NOT
ALLOWING THE JUDGMENT TO STATND.  PP. 107-116. 

  (A) HERE, WHERE DUTCHER WAS ASSUMEDLY A PARTY WHO SHOULD, UNDER
RULE 19(A), BE "JOINED IF FEASIBLE," BUT WHERE HIS JOINDER AS A
DEFENDANT WOULD DESTROY DIVERSITY, IS A PROBLEM WITHIN THE SCOPE OF
RULE 19(B).  PP. 108-109. 

  (B) RULE 19(B) HAS FOUR "INTERESTS" TO BE EXAMINED, IN THIS CASE
FROM AN APPELLATE PERSPECTIVE:  PLAINTIFF'S INTEREST IN HAVING A FORUM,
DEFENDANT'S INTEREST IN AVOIDING MULTIPLE LITIGATION, INTEREST OF THE
OUTSIDER WHOM IT WOULD HAVE BEEN DESIRABLE TO JOIN, AND INTERESTS OF
COURTS AND THE PUBLIC IN COMPLETE, CONSISTENT, AND EFFICIENT SETTLEMENT
OF CONTROVERSIES.  PP. 109-111. 

  (C) APPLICATION OF RULE 19'S CRITERIA BY THE COURT OF APPEALS
WOULD HAVE RESULTED IN A DIFFERENT CONCLUSION.  PP. 112-116. 

2.  THE COURT OF APPEALS' DISMISSAL OF RULE 19(B) AS AN INEFFECTIVE
ATTEMPT TO CHANGE THE "SUBSTANTIVE RIGHTS" STATED IN SHIELDS V. BARROW,
17 HOW.  130, WAS ERRONEOUS, AS THE RULE IS A VALID STATEMENT OF THE
CRITERIA FOR DETERMINING WHETHER TO PROCEED OR DISMISS IN THE FORCED
ABSENCE OF AN INTERESTED PERSON.  PP. 116-125. 

3.  THE COURT OF APPEALS DECIDED THE PROCEDURAL QUESTION
INCORRECTLY.  PP. 125-128. 

  (A) IN DECIDING THIS DISCRETIONARY MATTER THE COURT SHOULD HAVE
CONSIDERED THE EXISTENCE OF A VERDICT REACHED AFTER A PROLONGED TRIAL
IN WHICH THE DEFENDANTS DID NOT INVOKE THE PENDING STATE ACTIONS.  PP.
125-126

  (B) THE ISSUE IN THE STATE-COURT ACTIONS, WHETHER CIONCI WAS
ACTING AS DUTCHER'S AGENT, DIFFERS FROM THE QUESTION IN THIS CASE OF
WHETHER CIONCI HAD "PERMISSION" WITHIN THE SCOPE OF THE INSURANCE
POLICY.  P. 127. 

365 F.2D 802, VACATED AND REMANDED. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY, INVOLVING IN ITS PRESENT POSTURE THE DISMISSAL OF A
DECLARATORY JUDGMENT ACTION FOR NONJOINDER OF AN "INDISPENSABLE"
PARTY, BEGAN NEARLY 10 YEARS AGO WITH A TRAFFIC ACCIDENT.  AN
AUTOMOBILE OWNED BY EDWARD DUTCHER, WHO WAS NOT PRESENT WHEN THE
ACCIDENT OCCURRED, WAS BEING DRIVEN BY DONALD CIONCI, TO WHOM DUTCHER
HAD GIVEN THE KEYS.  JOHN LYNCH AND JOHN HARRIS WERE PASSENGERS.  THE
AUTOMOBILE CROSSED THE MEDIAN STRIP OF THE HIGHWAY AND COLLIDED WITH A
TRUCK BEING DRIVEN BY THOMAS SMITH.  CIONCI, LYNCH, AND SMITH WERE
KILLED AND HARRIS WAS SEVERLY INJURED. 

THREE TORT ACTIONS WERE BROUGHT.  PROVIDENT TRADESMENS BANK, THE
ADMINISTRATOR OF THE ESTATE OF PASSENGER LYNCH AND PETITIONER HERE,
SUED THE ESTATE OF THE DRIVER, CIONCI, IN A DIVERSITY ACTION.  SMITH'S
ADMINISTRATRIX, AND HARRIS IN PERSON, EACH BROUGHT A STATE-COURT ACTION
AGAINST THE ESTATE OF CIONCI, DUTCHER THE OWNER, AND THE ESTATE OF
LYNCH.  THESE SMITH AND HARRIS ACTIONS, FOR UNKNOWN REASONS, HAVE NEVER
GONE TO TRIAL AND ARE STILL PENDING.  THE LYNCH ACTION AGAINST CIONCI'S
ESTATE WAS SETTLED FOR $50,000, WHICH THE ESTATE OF CIONCI, BEING
PENNILESS, HAS NEVER PAID. 

DUTCHER, THE OWNER OF THE AUTOMOBILE AND A DEFENDANT IN THE AS YET
UNTRIED TORT ACTIONS, HAD AN AUTOMOBILE LIABILITY INSURANCE POLICY WITH
LUMBERMENS MUTUAL CASUALTY COMPANY, A RESPONDENT HERE.  THAT POLICY HAD
AN UPPER LIMIT OF $100,000 FOR ALL CLAIMS ARISING OUT OF A SINGLE
ACCIDENT.  THIS FUND WAS POTENTIALLY SUBJECT TO TWO DIFFERENT SORTS OF
CLAIMS BY THE TORT PLAINTIFFS.  FIRST, DUTCHER HIMSELF MIGHT BE HELD
VICARIOUSLY LIABLE AS CIONCI'S "PRINCIPAL"; THE LIKLIHOOD OF SUCH A
JUDGMENT AGAINST DUTCHER IS A MATTER OF CONSIDERABLE DOUBT AND
DISPUTE.  SECOND, THE POLICY BY ITS TERMS COVERED THE DIRECT LIABILITY
OF ANY PERSON DRIVING DUTCHER'S CAR WITH DUTCHER'S "PERMISSION. 

THE INSURANCE COMPANY HAD DECLINED, AFTER NOTICE, TO DEFEND IN THE
TORT ACTION BROUGHT BY LYNCH'S ESTATE AGAINST THE ESTATE OF CIONCI,
BELIEVING THAT CIONCI HAD NOT HAD PERMISSION AND HENCE WAS NOT COVERED
BY THE POLICY.  THE FACTS ALLEGEDLY WERE THAT DUTCHER HAD ENTRUSTED HIS
CAR TO CIONCI, BUT THAT CIONCI HAD MADE A DETOUR FROM THE ERRAND FOR
WHICH DUTCHER ALLOWED HIS CAR TO BE TAKEN.  THE ESTATE OF LYNCH, ARMED
WITH ITS $50,000 LIQUIDATED CLAIM AGAINST THE ESTATE OF CIONCI, BROUGHT
THE PRESENT DIVERSITY ACTION FOR A DECLARATION THAT CIONCI'S USE OF THE
CAR HAD BEEN "WITH PERMISSION" OF DUTCHER.  THE ONLY NAMED DEFENDANTS
WERE THE COMPANY AND THE ESTATE OF CIONCI.  THE OTHER TWO TORT
PLAINTIFFS WERE JOINED AS PLAINTIFFS, DUTCHER, A RESIDENT OF THE STATE
OF PENNSYLVANIA AS WERE ALL THE PLAINTIFFS, WAS NOT JOINED EITHER AS
PLAINTIFF OR DEFENDANT.  THE FAILURE TO JOIN HIM WAS NOT ADVERTED TO AT
THE TRIAL LEVEL. 

THE MAJOR QUESTION OF LAW CONTESTED AT TRIAL WAS A STATE-LAW
QUESTION; THE DISTRICT COURT HAD RULED THAT, AS A MATTER OF THE
APPLICABLE (PENNSYLVANIA) LAW, THE DRIVER OF AN AUTOMOBILE IS PRESUMED
TO HAVE THE PERMISSION OF THE OWNER.  HENCE, UNLESS CONTRARY EVIDENCE
COULD BE INTRODUCED, THE TORT PLAINTIFFS, NOW DECLARATORY JUDGMENT
PLAINTIFFS, WOULD BE ENTITLED TO A DIRECTED VERDICT AGAINST THE
INSURANCE COMPANY.  THE ONLY POSSIBLE CONTRARY EVIDENCE WAS TESTIMONY
BY DUTCHER AS TO RESTRICTIONS HE IMPOSED ON CIONCI'S USE OF THE
AUTOMOBILE.  THE TWO ESTATE PLAINTIFFS CLAIMED, HOWEVER, THAT UNDER THE
PENNSYLVANIA "DEAD MAN RULE" DUTCHER WAS INCOMPETENT TO TESTIFY ON THIS
MATTER AS AGAINST THEM.  THE DISTRICT COURT UPHELD THIS CLAIM.  IT
RULED THAT UNDER PENNSYLVANIA LAW DUTCHER WAS INCOMPETENT TO TESTIFY
AGAINST AN ESTATE IF HE HAD AN "ADVERSE" INTEREST TO THAT OF THE
ESTATE.  IT FOUND SUCH ADVERSITY IN DUTCHER'S POTENTIAL NEED TO CALL
UPON THE INSURANCE FUND TO PAY JUDGMENTS AGAINST HIMSELF, AND HIS
CONSEQUENT INTEREST IN NOT HAVING PART OR ALL OF THE FUND USED TO PAY
JUDGMENTS AGAINST CIONCI.  THE DISTRICT COURT, THEREFORE, DIRECTED
VERDICTS IN FAVOR OF THE TWO ESTATES.  DUTCHER WAS, HOWEVER, ALLOWED TO
TESTIFY AS AGAINST THE LIVE PLAINTIFF, HARRIS.  THE JURY, NONETHELESS,
FOUND THAT CIONCI HAD HAD PERMISSION, AND HENCE AWARDED A VERDICT TO
HARRIS ALSO. 

LUMBERMENS APPEALED THE JUDGMENT TO THE COURT OF APPEALS FOR THE
THIRD CIRCUIT, RAISING VARIOUS STATE-LAW QUESTIONS.  /1/  THE COURT OF
APPEALS DID NOT REACH ANY OF THESE ISSUES.  INSTEAD, AFTER REARGUMENT
EN BANC, IT DECIDED, 5-2, TO REVERSE ON TWO ALTERNATIVE GROUNDS NEITHER
OF WHICH HAD BEEN RAISED IN THE DISTRICT COURT OR BY THE APPELLANT. 

THE FIRST OF THESE GROUNDS WAS THAT DUTCHER WAS AN INDISPENSABLE
PARTY.  THE COURT HELD THAT THE "ADVERSE INTERESTS" THAT HAD RENDERED
DUTCHER INCOMPETENT TO TESTIFY UNDER THE PENNSYLVANIA DEAD MAN RULE
ALSO REQUIRED HIM TO BE MADE A PARTY.  THE COURT DID NOT CONSIDER
WHETHER THE FACT THAT A VERDICT HAD ALREADY BEEN RENDERED, WITHOUT
OBJECTION TO THE NONJOINDER OF DUTCHER, AFFECTED THE MATTER.  NOR DID
IT FOLLOW THE PROVISION OF RULE 19 OF THE FEDERAL RULES OF CIVIL
PROCEDURE THAT FINDINGS OF "INDISPENSABILITY" MUST BE BASED ON STATED
PRAGMATIC CONSIDERATIONS.  IT HELD, TO THE CONTRARY, THAT THE RIGHT OF
A PERSON WHO "MAY BE AFFECTED" BY THE JUDGMENT TO BE JOINED IS A
"SUBSTANTIVE" RIGHT, UNAFFECTED BY THE FEDERAL RULES; THAT A TRIAL
COURT "MAY NOT PROCEED" IN THE ABSENCE OF SUCH A PERSON; AND THAT SINCE
DUTCHER COULD NOT BE JOINED AS A DEFENDANT WITHOUT DESTROYING DIVERSITY
JURISDICTION THE ACTION HAD TO BE DISMISSED. 

SINCE THIS RULING PRESENTED A SERIOUS CHALLENGE TO THE SCOPE OF THE
NEWLY AMENDED RULE 19, WE GRANTED CERTIORARI, 386 U.S. 940.  CONCLUDING
THAT THE INFLEXIBLE APPROACH ADOPTED BY THE COURT OF APPEALS IN THIS
CASE EXEMPLIFIES THE KIND OF REASONING THAT THE RULE WAS DESIGNED TO
AVOID, WE REVERSE. 

        I. 

THE APPLICABLE PARTS OF RULE 19 READ AS FOLLOWS: 

     "RULE 19.  JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION 

     "(A) PERSONS TO BE JOINED IF FEASIBLE.  A PERSON WHO IS
SUBJECT

  TO SERVICE OF PROCESS AND WHOSE JOINDER WILL NOT DEPRIVE THE

  COURT OF JURISDICTION OVER THE SUBJECT MATTER OF THE ACTION SHALL

 BE JOINED AS A PARTY IN THE ACTION IF (1) IN HIS ABSENCE COMPLETE

  RELIEF CANNOT BE ACCORDED AMONG THOSE ALREADY PARTIES, OR (2) HE

  CLAIMS AN INTEREST RELATING TO THE SUBJECT OF THE ACTION AND IS

  SO SITUATED THAT THE DISPOSITION OF THE ACTION IN HIS ABSENCE MAY

  (I) AS A PRACTICAL MATTER IMPAIR OR IMPEDE HIS ABILITY TO PROTECT

  THAT INTEREST OR (II) LEAVE ANY OF THE PERSONS ALREADY PARTIES

  SUBJECT TO A SUBSTANTIAL RISK OF INCURRING DOUBLE, MULTIPLE, OR

OTHERWISE INCONSISTENT OBLIGATIONS BY REASON OF HIS CLAIMED

  INTEREST.  IF HE HAS NOT BEEN SO LOINED, THE COURT SHALL ORDER

  THAT HE BE MADE A PARTY.  IF HE SHOULD JOIN AS A PLAINTIFF BUT

  REFUSES TO DO SO, HE MAY BE MADE A DEFENDANT, OR IN A PROPER

  CASE, AN INVOLUNTARY PLAINTIFF.  IF THE JOINED PARTY OBJECTS TO

  VENUE AND HIS JOINDER WOULD RENDER THE VENUE OF THE ACTION

  IMPROPER, HE SHALL BE DISMISSED FROM THE ACTION. 

     "(B) DETERMINATION BY COURT WHENEVER JOINDER NOT FEASIBLE.  IF

  A PERSON AS DESCRIBED IN SUBDIVISION (A)(1)-(2) HEREOF CANNOT BE

  MADE A PARTY, THE COURT SHALL DETERMINE WHETHER IN EQUITY AND

  GOOD CONSCIENCE THE ACTION SHOULD PROCEED AMONG THE PARTIES

  BEFORE IT, OR SHOULD BE DISMISSED, THE ABSENT PERSON BEING THUS

  REGARDED AS INDISPENSABLE.  THE FACTORS TO BE CONSIDERED BY THE

  COURT INCLUDE:  FIRST, TO WHAT EXTENT A JUDGMENT RENDERED IN THE

  PERSON'S ABSENCE MIGHT BE PREJUDICIAL TO HIM OR THOSE ALREADY

  PARTIES; SECOND, THE EXTENT TO WHICH, BY PROTECTIVE PROVISIONS IN

  THE JUDGMENT, BY THE SHAPING OF RELIEF, OR OTHER MEASURES, THE

  PREJUDICE CAN BE LESSENED OR AVOIDED; THIRD, WHETHER A JUDGMENT

  RENDERED IN THE PERSON'S ABSENCE WILL BE ADEQUATE; FOURTH,

  WHETHER THE PALINTIFF WILL HAVE AN ADEQUATE REMEDY IF THE ACTION

IS DISMISSED FOR NONJOINDER." 

WE MAY ASSUME, AT THE OUTSET, THAT DUTCHER FALLS WITHIN THE CATEGORY
OF PERSONS WHO, UNDER SEC. (A), SHOULD BE "JOINED IF FEASIBLE."  THE
ACTION WAS FOR AN ADJUDICATION OF THE VALIDITY OF CERTAIN CLAIMS
AGAINST A FUND.  DUTCHER, FACED WITH THE POSSIBILITY OF JUDGMENTS
AGAINST HIM, HAD AN INTEREST IN HAVING THE FUND PRESERVED TO COVER THAT
POTENTIAL LIABILITY.  HENCE THERE EXISTED, WHEN THIS CASE WENT TO
TRIAL, AT LEAST THE POSSIBILITY THAT A JUDGMENT MIGHT IMPEDE DUTCHER'S
ABILITY TO PROTECT HIS INTEREST, OR LEAD TO LATER RELITIGATION BY HIM. 

THE OPTIMUM SOLUTION, AN ADJUDICATION OF THE PERMISSION QUESTION
THAT WOULD BE BINDING ON ALL INTERESTED PERSONS, WAS NOT "FEASIBLE,"
HOWEVER, FOR DUTCHER COULD NOT BE MADE A DEFENDANT WITHOUT DESTROYING
DIVERSITY.  HENCE THE PROBLEM WAS THE ONE TO WHICH RULE 19(B) APPEARS
TO ADDRESS ITSELF:  IN THE ABSENCE OF A PERSON WHO "SHOULD BE JOINED IF
FEASIBLE," SHOULD THE COURT DISMISS THE ACTION OR PROCEED WITHOUT HIM? 
SINCE THIS PROBLEM EMERGED FOR THE FIRST TIME IN THE COURT OF APPEALS,
THERE WERE ALSO TWO SUBSIDIARY QUESTIONS.  FIRST, WHAT WAS THE EFFECT,
IF ANY, OF THE FAILURE OF THE DEFENDANTS TO RAISE THE MATTER IN THE
DISTRICT COURT?  SECOND, WHAT WAS THE IMPORTANCE, IF ANY, OF THE FACT
THAT A JUDGMENT, BINDING ON THE PARTIES ALTHOUGH NOT BINDING ON
DUTCHER, HAD ALREADY BEEN REACHED AFTER EXTENSIVE LITIGATION?  THE
THREE QUESTIONS PROVE, ON EXAMINATION, TO BE INTERWOVEN. 

WE CONCLUDE, UPON CONSIDERATION OF THE RECORD AND APPLYING THE
"EQUITY AND GOOD CONSCIENCE" TEST OF RULE 19(B), THAT THE COURT OF
APPEALS ERRED IN NOT ALLOWING THE JUDGMENT TO STAND. 

RULE 19(B) SUGGESTS FOUR "INTERESTS" THAT MUST BE EXAMINED IN EACH
CASE TO DETERMINE WHETHER, IN EQUITY AND GOOD CONSCIENCE, THE COURT
SHOULD PROCEED WITHOUT A PARTY WHOSE ABSENCE FROM THE LITIGATION IS
COMPELLED.  /2/  EACH OF THESE INTERESTS MUST, IN THIS CASE, BE VIEWED
ENTIRELY FROM AN APPELLATE PERSPECTIVE SINCE THE MATTER OF JOINDER WAS
NOT CONSIDERED IN THE TRIAL COURT.  FIRST, THE PLAINTIFF HAS AN
INTEREST IN HAVING A FORUM.  BEFORE THE TRIAL, THE STRENGTH OF THIS
INTEREST OBVIOUSLY DEPENDS UPON WHETHER A SATISFACTORY ALTERNATIVE
FORUM EXISTS.  /3/  ON APPEAL, IF THE PLAINTIFF HAS WON, HE HAS A
STRONG ADDITIONAL INTEREST IN PRESERVING HIS JUDGMENT.  SECOND, THE
DEFENDANT MAY PROPERLY WISH TO AVOID MULTIPLE LITIGATION, OR
INCONSISTENT RELIEF, OR SOLE RESPONSIBILITY FOR A LIABILITY HE SHARES
WITH ANOTHER.  AFTER TRIAL, HOWEVER, IF THE DEFENDANT HAS FAILED TO
ASSERT THIS INTEREST, IT IS QUITE PROPER TO CONSIDER IT FORECLOSED. 
/4/ 

THIRD, THERE IS THE INTEREST OF THE OUTSIDER WHOM IT WOULD HAVE BEEN
DESIRABLE TO JOIN.  OF COURSE, SINCE THE OUTSIDER IS NOT BEFORE THE
COURT, HE CANNOT BE BOUND BY THE JUDGMENT RENDERED.  THIS MEANS,
HOWEVER, ONLY THAT A JUDGMENT IS NOT RES JUDICATA AS TO, OR LEGALLY
ENFORCEABLE AGAINST, A NONPARTY.  /5/  IT OBVIOUSLY DOES NOT MEAN
EITHER (A) THAT A COURT MAY NEVER ISSUE A JUDGMENT THAT, IN PRACTICE,
AFFECTS A NONPARTY OR (B) THAT (TO THE CONTRARY) A COURT MAY ALWAYS
PROCEED WITHOUT CONSIDERING THE POTENTIAL EFFECT ON NONPARTIES SIMPLY
BECAUSE THEY ARE NOT "BOUND" IN THE TECHNICAL SENSE.  /6/  INSTEAD, AS
RULE 19(A) EXPRESSES IT, THE COURT MUST CONSIDER THE EXTENT TO WHICH
THE JUDGMENT MAY "AS A PRACTICAL MATTER IMPAIR OR IMPEDE HIS ABILITY TO
PROTECT" HIS INTERES IN THE SUBJECT MATTER.  WHEN A CASE HAS REACHED
THE APPEAL STAGE THE MATTER IS MORE COMPLEX.  THE JUDGMENT APPEALED
FROM MAY NOT IN FACT AFFECT THE INTEREST OF ANY OUTSIDER EVEN THOUGH
THERE EXISTED, BEFORE TRIAL, A POSSIBILITY THAT A JUDGMENT AFFECTING
HIS INTEREST WOULD BE RENDERED.  /7/  WHEN NECESSARY, HOWEVER, A COURT
OF APPEALS SHOULD, ON ITS OWN INITIATIVE, TAKE STEPS TO PROTECT THE
ABSENT PARTY, WHO OF COURSE HAD NO OPPORTUNITY TO PLEAD AND PROVE HIS
INTEREST BELOW.  /8/ 

FOURTH, THERE REMAINS THE INTEREST OF THE COURTS AND THE PUBLIC IN
COMPLETE, CONSISTENT, AND EFFICIENT SETTLEMENT OF CONTROVERSIES.  WE
READ THE RULE'S THIRD CRITERION, WHETHER THE JUDGMENT ISSUED IN THE
ABSENCE OF THE NONJOINED PERSON WILL BE "ADEQUATE," TO REFER TO THIS
PUBLIC STAKE IN SETTLING DISPUTES BY WHOLES, WHENEVER POSSIBLE, FOR
CLEARLY THE PLAINTIFF, WHO HIMSELF CHOSE BOTH THE FORUM AND THE PARTIES
DEFENDANT, WILL NOT BE HEARD TO COMPLAIN ABOUT THE SUFFICIENCY OF THE
RELIEF OBTAINABLE AGAINST THEM.  AFTER TRIAL, CONSIDERATIONS OF
EFFICIENCY OF COURSE INCLUDE THE FACT THAT THE TIME AND EXPENSE OF A
TRIAL HAVE ALREADY BEEN SPENT. 

RULE 19(B) ALSO DIRECTS A DISTRICT COURT TO CONSIDER THE POSSIBILITY
OF SHAPING RELIEF TO ACCOMMODATE THESE FOUR INTERESTS.  COMMENTATORS
HAD ARGUED THAT GREATER ATTENTION SHOULD BE PAID TO THIS POTENTIAL
SOLUTION TO A JOINDER STYMIE, /9/  AND THE RULE NOW MAKES IT EXPLICIT
THAT A COURT SHOULD CONSIDER MODIFICATION OF A JUDGMENT AS AN
ALTERNATIVE TO DISMISSAL.  /10/ NEEDLESS TO SAY, A COURT OF APPEALS MAY
ALSO PROPERLY REQUIRE SUITABLE MODIFICATION AS A CONDITION OF
AFFIRMANCE. 

HAD THE COURT OF APPEALS APPLIED RULE 19'S CRITERIA TO THE FACTS OF
THE PRESENT CASE, IT COULD HARDLY HAVE REACHED THE CONCLUSION IT DID. 
WE BEGIN WITH THE PLAINTIFFS' VIEWPOINT.  IT IS DIFFICULT TO DECIDE AT
THIS STAGE WHETHER THEY WOULD HAVE HAD AN "ADEQUATE" REMEDY HAD THE
ACTION BEEN DISMISSED BEFORE TRIAL FOR NONJOINDER:  WE CANNOT HERE
DETERMINE WHETHER THE PLAINTIFFS COULD HAVE BROUGHT THE SAME ACTION,
AGAINST THE SAME PARTIES PLUS DUTCHER, IN A STATE COURT.  AFTER TRIAL,
HOWEVER, THE "ADEQUACY" OF THIS HYPOTHETICAL ALTERNATIVE, FROM THE
PLAINTIFFS' POINT OF VIEW, WAS OBVIOUSLY GREATLY DIMINISHED.  THEIR
INTEREST IN PRESERVING A FULLY LITIGATED JUDGMENT SHOULD BE OVERBORNE
ONLY BY RATHER GREATER OPPOSING CONSIDERATIONS THAN WOULD BE REQUIRED
AT AN EARLIER STAGE WHEN THE PLAINTIFFS' ONLY CONCERN WAS FOR A FEDERAL
RATHER THAN A STATE FORUM.     OPPOSING CONSIDERATIONS IN THIS CASE ARE
HARD TO FIND.  THE DEFENDANTS HAD NO STAKE, EITHER ASSERTED OR REAL, IN
THE JOINDER OF DUTCHER.  THEY SHOWED NO INTEREST IN JOINDER UNTIL THE
COURT OF APPEALS TOOK THE MATTER INTO ITS OWN HANDS.  THIS PROPERLY
FORECLOSES ANY INTEREST OF THEIRS, BUT FOR PURPOSES OF CLARITY WE NOTE
THAT THE INSURANCE COMPANY, WHOSE LIABILITY WAS LIMITED TO $100,000,
HAD OR WILL HAVE FULL OPPORTUNITY TO LITIGATE EACH CLAIM ON THAT FUND
AGAINST THE CLAIMANT INVOLVED.  ITS ONLY CONCERN WITH THE ABSENCE OF
DUTCHER WAS AND IS TO OBTAIN A WINDFALL ESCAPE FROM ITS DEFEAT AT
TRIAL. 

THE INTEREST OF THE OUTSIDER, DUTCHER, IS MORE DIFFICULT TO RECKON. 
THE COURT OF APPEALS, CONCLUDING THAT IT SHOULD NOT FOLLOW RULE 19'S
COMMAND TO DETERMINE WHETHER, AS A PRACTICAL MATTER, THE JUDGMENT
IMPAIRED THE NONPARTY'S ABILITY TO PROTECT HIS RIGHTS, SIMPLY QUOTED
THE DISTRICT COURT'S REASONING ON THE DEAD MAN ISSUE AS PROOF THAT
DUTCHER HAD A "RIGHT" TO BE JOINED: 

"'THE SUBJECT MATTER OF THIS SUIT IS THE COVERAGE OF LUMBERMENS'
POLICY ISSUED TO DUTCHER.  DEPENDING UPON THE OUTCOME OF THIS TRIAL,
DUTCHER MAY HAVE THE POLICY ALL TO HIMSELF OR HE MAY HAVE TO SHARE ITS
COVERAGE WITH THE CIONCI ESTATE, THEREBY EXTENDING THE AVAILABILITY OF
THE PROCEEDS OF THE POLICY TO SATISFY VERDICTS AND JUDGMENTS IN FAVOR
OF THE TWO ESTATE PLAINTIFFS.  SHARING THE COVERAGE OF A POLICY OF
INSURANCE WITH FINITE LIMITS WITH ANOTHER, AND THEREBY MAKING THAT
POLICY AVAILABLE TO CLAIMANTS AGAINST THAT OTHER PERSON IS IMMEDIATELY
WORTH LESS THAN HAVING THE COVERAGE OF SUCH POLICY AVAILABLE TO DUTCHER
ALONE.  BY THE OUTCOME IN THE INSTANT CASE, TO THE EXTENT THAT THE TWO
ESTATE PLAINTIFFS WILL HAVE THE PROCEEDS OF THE POLICY AVAILABLE TO
THEM IN THEIR CLAIMS AGAINST CIONCI'S ESTATE, DUTCHER WILL LOSE A
MEASURE OF PROTECTION.  CONVERSELY, TO THE EXTENT THAT THE PROCEEDS OF
THIS POLICY ARE NOT AVAILABLE TO THE TWO ESTATE PLAINTIFFS DUTCHER WILL
GAIN.  . . . IT IS SUFFICIENT FOR THE PURPOSE OF DETERMINING ADVERSITY
(OF INTEREST) THAT IT APPEARS CLEARLY THAT THE MEASURE OF DUTCHER'S
PROTECTION UNDER THIS POLICY OF INSURANCE IS DEPENDENT UPON THE OUTCOME
OF THIS SUIT.  THAT BEING SO, DUTCHER'S INTEREST IN THESE PROCEEDINGS
IS ADVERSE TO THE INTEREST OF THE TWO ESTATE PLAINTIFFS, THE PARTIES
WHO REPRESENT, ON THIS RECORD, THE INTERESTS OF THE DECEASED PERSONS IN
THE MATTER IN CONTROVERSY.'"  /11/ THERE IS A LOGICAL ERROR IN THE
COURT OF APPEALS' APPROPRIATION OF THIS REASONING FOR ITS OWN QUITE
DIFFERENT PURPOSES:  DUTCHER HAD AN "ADVERSE" INTEREST (SUFFICIENT TO
INVOKE THE DEAD MAN RULE) BECAUSE HE WOULD HAVE BEEN BENEFITED BY A
RULING IN FAVOR OF THE INSURANCE COMPANY; THE QUESTION BEFORE THE COURT
OF APPEALS, HOWEVER, WAS WHETHER DUTCHER WAS HARMED BY THE JUDGMENT
AGAINST THE INSURANCE COMPANY. 

THE TWO QUESTIONS ARE NOT THE SAME.  IF THE THREE PLAINTIFFS HAD
LOST TO THE INSURANCE COMPANY ON THE PERMISSION ISSUE, THAT LOSS WOULD
HAVE ENDED THE MATTER FAVORABLY TO DUTCHER.  IF, AS HAS HAPPENED, THE
THREE PLAINTIFFS OBTAIN A JUDGMENT AGAINST THE INSURANCE COMPANY ON THE
PERMISSION ISSUE, DUTCHER MAY STILL CLAIM THAT AS A NONPARTY HE IS NOT
ESTOPPED BY THAT JUDGMENT FROM RELITIGATING THE ISSUE.  AT THAT POINT
IT MIGHT BE ARGUED THAT DUTCHER SHOULD BE BOUND BY THE PRVIOUS DECISION
BECAUSE, ALTHOUGH TECHNICALLY A NONPARTY, HE HAD PURPOSELY BYPASSED AN
ADEQUATE OPPORTUNITY TO INTERVENE.  WE DO NOT NOW DECIDE WHETHER SUCH
AN ARGUMENT WOULD BE CORRECT UNDER THE CIRCUMSTANCES OF THIS CASE.  IF,
HOWEVER, DUTCHER IS PROPERLY FORECLOSED BY HIS FAILURE TO INTERVENE IN
THE PRESENT LITIGATION, THEN THE JOINDER ISSUE CONSIDERED IN THE COURT
OF APPEALS VANISHES, FOR ANY RIGHTS OF DUTCHER'S HAVE BEEN LOST BY HIS
OWN INACTION. 

IF DUTCHER IS NOT FORECLOSED BY HIS FAILURE TO INTERVENE BELOW, THEN
HE IS NOT "BOUND" BY THE JUDGMENT AGAINST THE INSURANCE COMPANY AND, IN
THEORY, HE HAS NOT BEEN HARMED.  THERE REMAINS, HOWEVER, THE PRACTICAL
QUESTION WHETHER DUTCHER IS LIKELY TO HAVE ANY NEED, AND IF SO WILL
HAVE ANY OPPORTUNITY, TO RELITIGATE.  THE ONLY POSSIBLE THREAT TO HIM
IS THAT IF THE FUND IS USED TO PAY JUDGMENTS AGAINST CIONCI THE MONEY
MAY IN FACT HAVE DISAPPEARED BEFORE DUTCHER HAS AN OPPORTUNITY TO
ASSERT HIS INTEREST.  UPON EXAMINATION, WE FIND THIS SUPPOSED THREAT
NEITHER LARGE NOR UNAVOIDABLE. 

THE STATE-COURT ACTIONS AGAINST DUTCHER HAD LAIN DORMANT FOR YEARS
AT THE PLEADING STAGE BY THE TIME THE COURT OF APPEALS ACTED. 
EPTITIONER ASSERTS HERE THAT UNDER THE APPLICABLE PENNSYLVANIA
VICARIOUS LIABILITY LAW THERE IS VIRTUALLY NO CHANCE OF RECOVERY
AGAINST DUTCHER.  WE DO NOT ACCEPT THIS ASSERTION AS FACT, BUT THE
MATTER COULD HAVE BEEN EXPLORED BELOW.  FURTHERMORE, EVEN IN THE EVENT
OF TORT JUDGMENTS AGAINST DUTCHER, IT IS UNLIKELY THAT HE WILL BE
PREJUDICED BY THE OUTCOME HERE.  THE POTENTIAL CLAIMANTS AGAINST
DUTCHER HIMSELF ARE IDENTICAL WITH THE POTENTIAL CLAIMANTS AGAINST
CIONCI'S ESTATE.  SHOULD THE CLAIMANTS SEEK TO COLLECT FROM DUTCHER
PERSONALLY, HE MAY BE ABLE TO RAISE THE PERMISSION ISSUE DEFENSIVELY,
MAKING IT IRRELEVANT THAT THE ACTUAL MONIES PAID FROM THE FUND MAY HAVE
DISAPPEARED:  DUTCHER CAN ASSERT THAT CIONCI DID NOT HAVE HIS
PERMISSION AND THAT THEREFORE THE PAYMENTS MADE ON CIONCI'S BEHALF OUT
OF DUTCHER'S INSURANCE POLICY SHOULD PROPERLY BE CREDITED AGAINST
DUTCHER'S OWN LIABILITY.  OF COURSE, WHEN DUTCHER RAISES THIS DEFENSE
HE MAY LOSE, EITHER ON THE MERITS OF THE PERMISSION ISSUE OR ON THE
GROUND THAT THE ISSUE IS FORECLOSED BY DUTCHER'S FAILURE TO INTERVENE
IN THE PRESENT CASE, BUT DUTCHER WILL NOT HAVE BEEN PREJUDICED BY THE
FAILURE OF THE DISTRICT COURT HERE TO ORDER HIM JOINED. 

IF THE COURT OF APPEALS WAS UNCONVINCED THAT THE THREAT TO DUTCHER
WAS TRIVIAL, IT COULD NEVERTHELESS HAVE AVOIDED ALL DIFFICULTIES BY
PROPER PHRASING OF THE DECREE.  THE DISTRICT COURT, FOR UNSPECIFIED
REASONS, HAD REFUSED TO ORDER IMMEDIATE PAYMENT ON THE CIONCI
JUDGMENT.  PAYMENT COULD HAVE BEEN WITHHELD PENDING THE SUITS AGAINST
DUTCHER AND RELITIGATION (IF THAT BECAME NECESSARY) BY HIM.  IN THIS
COURT, FURTHERMORE, COUNSEL FOR PETITIONER REPRESENTED ORALLY THAT THE
TORT PLAINTIFFS WOULD ACCEPT A LIMITATION OF ALL CLAIMS TO THE AMOUNT
OF THE INSURANCE POLICY.  OBVIOUSLY SUCH A COMPROMISE COULD HAVE BEEN
REACHED BELOW HAD THE COURT OF APPEALS BEEN WILLING TO ABANDON ITS
RIGID APPROACH AND SEEK WAYS TO PRESERVE WHAT WAS, AS TO THE PARTIES,
SUBJECT TO THE APPELLANT'S OTHER CONTENTIONS, A PERFECTLY VALID
JUDGMENT. 

THE SUGGESTION OF POTENTIAL RELITIGATION OF THE QUESTION OF
"PERMISSION" RAISES THE FOURTH "INTEREST" AT STAKE IN JOINDER CASES--
EFFICIENCY.  IT MIGHT HAVE BEEN PREFERABLE, AT THE TRIAL LEVEL, IF
THERE WERE A FORUM AVAILABLE IN WHICH BOTH THE COMPANY AND DUTCHER
COULD HAVE BEEN MADE DEFENDANTS, TO DISMISS THE ACTION AND FORCE THE
PLAINTIFFS TO GO ELSEWHERE.  EVEN THIS PREFERENCE WOULD HAVE BEEN
HIGHLY PROBLEMATICAL, HOWEVER, FOR THE ACTUAL THREAT OF RELITIGATION BY
DUTCHER DEPENDED ON THERE BEING JUDGMENTS AGAINST HIM AND ON THE AMOUNT
OF THE FUND, WHICH WAS NOT REVEALED TO THE DISTRICT COURT.  BY THE TIME
THE CASE REACHED THE COURT OF APPEALS, HOWEVER, THE PROBLEMATICAL
PREFERENCE ON EFFICIENCY GROUNDS HAD ENTIRELY DISAPPEARED:  THERE WAS
NO REASON THEN TO THROW AWAY A VALID JUDGMENT JUST BECAUSE IT DID NOT
THEORETICALLY SETTLE THE WHOLE CONTROVERSY. 

     II. 

APPLICATION OF RULE 19(B)'S "EQUITY AND GOOD CONSCIENCE" TEST FOR
DETERMINING WHETHER TO PROCEED OR DISMISS WOULD DOUBTLESS HAVE LED TO A
CONTRARY RESULT BELOW.  THE COURT OF APPEALS' REASONS FOR DISREGARDING
THE RULE REMAIN TO BE EXAMINED.  /12/  THE MAJORITY OF THE COURT
CONCLUDED THAT THE RULE WAS INAPPLICABLE BECAUSE "SUBSTANTIVE" RIGHTS
ARE INVOLVED, AND SUBSTANTIVE RIGHTS ARE NOT AFFECTED BY THE FEDERAL
RULES.  ALTHOUGH THE COURT DID NOT ARTICULATE EXACTLY WHAT THE
SUBSTANTIVE RIGHTS ARE, OR WHAT LAW DETERMINES THEM, WE TAKE IT TO HAVE
BEEN MAKING THE FOLLOWING ARGUMENT:  (1) THERE IS A CATEGORY OF PERSONS
CALLED "INDISPENSABLE PARTIES"; (2) THAT CATEGORY IS DEFINED BY
SUBSTANTIVE LAW AND THE DEFINITION CANNOT BE MODIFIED BY RULE; (3) THE
RIGHT OF A PERSON FALLING WITHIN THAT CATEGORY TO PARTICIPATE IN THE
LAWSUIT IN QUESTION IS ALSO A SUBSTANTIVE MATTER, AND IS ABSOLUTE. 
/13/ 

WITH THIS WE MAY CONTRAST THE POSITION THAT IS REFLECTED IN RULE
19.  WHETHER A PERSON IS "INDISPENSABLE," THAT IS, WHETHER A PARTICULAR
LAWSUIT MUST BE DISMISSED IN THE ABSENCE OF THAT PERSON, CAN ONLY BE
DETERMINED IN THE CONTEXT OF PARTICULAR LITIGATION.  /14/  THERE IS A
LARGE CATEGORY, WHOSE LIMITS ARE NOT PRESENTLY IN QUESTION, OF PERSONS
WHO, IN THE RULE'S TERMINOLOGY, SHOULD BE "JOINED IF FEASIBLE," AND
WHO, IN THE OLDER TERMINOLOGY, WERE CALLED EITHER NECESSARY OR
INDISPENSABLE PARTIES.  ASSUMING THE EXISTENCE OF A PERSON WHO SHOULD
BE JOINED IF FEASIBLE, THE ONLY FURTHER QUESTION ARISES WHEN JOINDER IS
NOT POSSIBLE AND THE COURT MUST DECIDE WHETHER TO DISMISS OR TO PROCEED
WITHOUT HIM.  TO USE THE FAMILIAR BUT CONFUSING TERMINOLOGY, THE
DECISION TO PROCEED IS A DECISION THAT THE ABSENT PERSON IS MERELY
"NECESSARY" WHILE THE DECISION TO DISMISS IS A DECISION THAT HE IS
"INDISPENSABLE."  /15/  THE DECISION WHETHER TO DISMISS (I.E., THE
DECISION WHETHER THE PERSON MISSING IS "INDISPENSABLE") MUST BE BASED
ON FACTORS VARYING WITH THE DIFFERENT CASES, SOME SUCH FACTORS BEING
SUBSTANTIVE, SOME PROCEDURAL, SOME COMPELLING BY THEMSELVES, AND SOME
SUBJECT TO BALANCING AGAINST OPPOSING INTERESTS.  RULE 19 DOES NOT
PREVENT THE ASSERTION OF COMPELLING SUBSTANTIVE INTERESTS; IT MERELY
COMMANDS THE COURTS TO EXAMINE EACH CONTROVERSY TO MAKE CERTAIN THAT
THE INTERESTS REALLY EXIST.  TO SAY THAT A COURT "MUST" DISMISS IN THE
ABSENCE OF AN INDISPENSABLE PARTY AND THAT IT "CANNOT PROCEED" WITHOUT
HIM PUTS THE MATTER THE WRONG WAY AROUND:  A COURT DOES NOT KNOW
WHETHER A PARTICULAR PERSON IS "INDISPENSABLE" UNTIL IT HAS EXAMINED
THE SITUATION TO DETERMINE WHETHER IT CAN PROCEED WITHOUT HIM. 

THE COURT OF APPEALS CONCLUDED, ALTHOUGH IT WAS THE FIRST COURT TO
HOLD, THAT THE 19TH CENTURY JOINDER CASES IN THIS COURT CREATED A
FEDERAL, COMMON-LAW, SUBSTATNTIVE RIGHT IN A CERTAIN CLASS OF PERSONS
TO BE JOINED IN THE CORRESPONDING LAWSUITS.  /16/  AT THE LEAST, THAT
WAS NOT THE WAY THE MATTER STARTED.  THE JOINDER PROBLEM FIRST AROSE IN
EQUITY AND IN THE EARLIEST CASE GIVING RISE TO EXTENDED DISCUSSION THE
PROBLEM WAS THE RELATIVELY SIMPLE ONE OF THE INEFFICIENCY OF LITIGATION
INVOLVING ONLY SOME OF THE INTERESTED PERSONS.  A DEFENDANT BEING SUED
BY SEVERAL COTENANTS OBJECTED THAT THE OTHER COTENANTS WERE NOT MADE
PARITES.  CHIEF JUSTICE MARSHALL REPLIED: 

     "THIS OBJECTION DOES NOT AFFECT THE JURISDICTION, BUT
ADDRESSES

  ITSELF TO THE POLICY OF THE COURT.  COURTS OF EQUITY REQUIRE,

  THAT ALL THE PARTIES CONCERNED IN INTEREST SHALL BE BROUGHT

  BEFORE THEM, THAT THE MATTER IN CONTROVERSY MAY BE FINALLY

  SETTLED.  THIS EQUITABLE RULE, HOWEVER, IS FRAMED BY THE COURT

  ITSELF, AND IS SUBJECT TO ITS DISCRETION; . . . (BEING INTRODUCED

  BY THE COURT ITSELF, FOR THE PURPOSES OF JUSTICE, (THE RULE IS

  SUSCEPTIBLE OF MOTIFICATION FOR THE PROMOTION OF THOSE

  PURPOSES.  . . . IN THE EXERCISE OF ITS DISCRETION, THE COURT
WILL

  REQUIRE THE PLAINTIFF TO DO ALL IN HIS POWER TO BRING EVERY

  PERSON CONCERNED IN INTEREST BEFORE THE COURT.  BUT, IF THE CASE

  MAY BE COMPLETELY DECIDED AS BETWEEN THE LITIGANT PARTIES, THE

  CIRCUMSTANCE THAT AN INTEREST EXISTS IN SOME OTHER PERSON, WHOM

  THE PROCESS OF THE COURT CANNOT REACH . . . OUGHT NOT TO PREVENT

  A DECREE UPON ITS MERITS."  /17/ 

FOLLOWING THIS CASE THERE AROSE THREE CASES, ALSO IN EQUITY, THAT
THE COURT OF APPEALS HERE HELD TO HAVE DECLARED A "SUBSTANTIVE" RIGHT
TO BE JOINED.  IT IS TRUE THAT THESE CASES INVOLVED WHAT WOULD NOW BE
CALLED "SUBSTANTIVE" RIGHTS.  THIS SUBSTANTIVE INVOLVEMENT OF THE
ABSENT PERSON WITH THE CONTROVERSY BEFORE THE COURT WAS, HOWEVER, IN
EACH CASE SIMPLY AN INESCAPABLE FACT OF THE SITUATION PRESENTED TO THE
COURT FOR ADJUDICATION.  THE COURT IN EACH CASE LEFT THE OUTSIDER WITH
NO MORE "RIGHTS" THAN IT HAD ALREADY FOUND BELONGED TO HIM.  THE
QUESTION IN EACH CASE LEFT THE OUTSIDER WITH NO MORE "RIGHTS" THAN IT
HAD ALREADY FOUND BELONGED TO HIM.  THE QUESTION IN EACH CASE WAS
SIMPLY WHETHER, GIVEN THE SUBSTANTIVE INVOLVEMENT OF THE OUTSIDER, IT
WAS PROPER TO PROCEED TO ADJUDICATE AS BETWEEN THE PARTIES. 

THE FIRST OF THE CASES WAS MALLOW V. HINDE, 12 WHEAT.  193, IN
WHICH, IN ESSENCE, THE PLAINTIFF SOUGHT SPECIFIC PERFORMANCE OF A
CONTRACT TO CONVEY LAND, BUT SOUGHT IT NOT AGAINST HIS VENDOR (WHO
COULD NOT BE JOINED) BUT AGAINST A PERSON WHO CLAIMED THROUGH AN
ENTIRELY DIFFERENT CHAIN OF TITLE.  THE COURT SAW THAT ANY DECLARATION
OF RIGHTS BETWEEN THE PARTIES BEFORE IT WOULD EITHER PURPORT
(INCORRECTLY) TO DETERMINE THE VALIDITY OF PLAINTIFF'S CONTRACT WITH
HIS GRANTOR, OR WOULD DECIDE NOTHING.  THE COURT SAID, IN LANGUAGE
QUOTED HERE BY THE COURT OF APPEALS: 

     "IN THIS CASE, THE COMPLAINANTS HAVE NO RIGHTS SEPARABLE FROM,

  AND INDEPENDENT OF, THE RIGHTS OF PERSONS NOT MADE PARTIES.  THE

  RIGHTS OF THOSE NOT BEFORE THE COURT LIE AT THE VERY FOUNDATION

  OF THE CLAIM OF RIGHT BY THE PLAINTIFFS, AND A FINAL DECISION

  CANNOT BE MADE BETWEEN THE PARTIES LITIGANT WITHOUT DIRECTLY

  AFFECTING AND PREJUDICING THE RIGHTS OF OTHERS NOT MADE

  PARTIES.  . . . 

      "WE DO NOT PUT THIS CASE UPON THE GROUND OF JURISDICTION, BUT

  UPON A MUCH BROADER GROUND.  . . . WE PUT IT ON THE GROUND THAT
NO

  COURT CAN ADJUDICATE DIRECTLY UPON A PERSON'S RIGHT, WITHOUT THE

  PARTY BEING EITHER ACTUALLY OR CONSTRUCTIVELY BEFORE THE COURT." 

  /18/ 

NOTHING IN THIS LANGUAGE IS INCONSISTENT WITH THE RULE 19
FORMULATION, OR OTHERWISE SUGGESTS THAT LOWER COURTS ARE EXPECTED TO
PROCEED WITHOUT EXAMINING THE ACTUAL INTEREST OF THE NONJOINED PERSON. 
AS THE COURT EXPLICITLY STATED, THERE IS NO QUESTION OF "JURISDICTION"
AND THERE CAN BE NO BINDING ADJUDICATION OF A PERSON'S RIGHTS IN THE
ABSENCE OF THAT PERSON.  RATHER, THE PROBLEM UNDER THE CIRCUMSTANCES
WAS THAT THE SUBSTANTIVE INVOLVEMENT OF THE GRANTOR WAS SUCH THAT IN
HIS ABSENCE THERE WAS NOTHING FOR THE COURT TO DECIDE. 

THE SECOND CASE RELIED UPON BY THE COURT OF APPEALS, NORTHERN
INDIANA R. CO. V. MICHIGAN CENTRAL R. CO., 15 HOW.  233, PRESENTS A
DIFFERENT ASPECT OF JOINDER.  THERE SUIT WAS BROUGHT FOR AN INJUNCTION
AGAINST CONSTRUCTION BY DEFENDANT OF A RAILROAD THAT IT WAS UNDER
CONGRACT TO A NONJOINED OUTSIDER TO BUILD.  THUS THE PLAINTIFF WAS
SEEKING EQUITABLE RELIEF THAT WOULD, IN PRACTICE, ABROGATE THE
CONTRACTUAL RIGHTS OF A NONPARTY.  AMONG THE UNPLEASANT POSSIBILITIES
ENTAILED BY PROCEEDING WAS THE LIKELIHOOD THAT THE DEFENDANT MIGHT FIND
ITSELF SUBJECT TO DIRECTLY CONFLICTING INJUNCTIVE ORDERS.  THE COURT
RULED THAT, 

     " . . . IN A CASE LIKE THE PRESENT, WHERE A COURT CANNOT BUT

  SEE THAT THE INTEREST OF THE NEW ALBANY COMPANY MUST BE VITALLY

  AFFECTED, IF THE RELIEF PRAYED BY THE COMPLAINANTS BE GIVEN, THE

  COURT MUST REFUSE TO EXERCISE JURISDICTION IN THE CASE, OR BECOME

  THE INSTRUMENT OF INJUSTICE."  /19/

AGAIN, THE COURT OF APPEALS' RELIANCE ON THIS LANGUAGE TO SHOW THAT IN
ANY CASE WHERE AN OUTSIDER "MAY BE AFFECTED" IT IS NECESSARILY UNJUST
TO PROCEED, IS ALTOGETHER MISPLACED:  THE COURT IN NORTHERN INDIANA R.
CO. SIMPLY FOUND THAT THERE WOULD BE INJUSTICE IN PROCEEDING GIVEN THE
PARTICULAR FACTUAL AND LEGAL SITUATION BEFORE IT.  NEITHER RULE 19, NOR
WE, TODAY, MEAN TO FORECLOSE AN EXAMINATION IN FUTURE CASES TO SEE
WHETHER AN INJUSTICE IS BEING OR MIGHT BE, DONE TO THE SUBSTANTIVE, OR,
FOR THAT MATTER, CONSTITUTIONAL, RIGHTS OF AN OUTSIDER BY PROCEEDING
WITH A PARTICULAR CASE.  IN THIS INSTANCE, HOWEVER, NO SUCH EXAMINATION
WAS MADE BELOW, AND NO SUCH INJUSTICE APPEARS ON THE RECORD HERE. 

THE MOST INFLUENTIAL OF THE CASES IN WHICH THIS COURT CONSIDERED THE
QUESTION WHETHER TO PROCEED OR DISMISS IN THE ABSENCE OF AN INTERESTED
BY NOT JOINABLE OUTSIDER IS SHIELDS V. BARROW, 17 HOW.  130, REFERRED
TO IN THE OPINION BELOW.  THERE THE COURT ATTEMPTED, PERHAPS
UNFORTUNATELY, TO STATE GENERAL DEFINITIONS OF THOSE PERSONS WITHOUT
WHOM LITIGATION COULD OR COULD NOT PROCEED.  IN THE FORMER CATEGORY
WERE PLACED 

"PERSONS HAVING AN INTEREST IN THE CONTROVERSY, AND WHO OUGHT TO BE
MADE PARTIES, IN ORDER THAT THE COURT MAY ACT ON THAT RULE WHICH
REQUIRES IT TO DECIDE ON, AND FINALLY DETERMINE THE ENTIRE CONTROVERSY,
AND DO COMPLETE JUSTICE, BY ADJUSTING ALL THE RIGHTS INVOLVED IN IT.
THESE PERSONS ARE COMMONLY TERMED NECESSARY PARTIES; BUT IF THEIR
INTERESTS ARE SEPARABLE FROM THOSE OF THE PARTIES BEFORE THE COURT, SO
THAT THE COURT CAN PROCEED TO A DECREE, AND DO COMPLETE AND FINAL
JUSTICE, WITHOUT AFFECTING OTHER PERSONS NOT BEFORE THE COURT, THE
LATTER ARE NOT INDISPENSABLE PARTIES."  /20/ THE PERSONS IN THE LATTER
CATEGORY WERE 

"PERSONS WHO NOT ONLY HAVE AN INTEREST IN THE CONTROVERSY, BUT AN
INTEREST OF SUCH A NATURE THAT A FINAL DECREE CANNOT BE MADE WITHOUT
EITHER AFFECTING THAT INTEREST, OR LEAVING THE CONTROVERSY IN SUCH A
CONDITION THAT ITS FINAL TERMINATION MAY BE WHOLLY INCONSISTENT WITH
EQUITY AND GOOD CONSCIENCE."  /21/ 

THESE GENERALIZATIONS ARE STILL VALID TODAY, AND THEY ARE CONSISTENT
WITH THE REQUIREMENTS OF RULE 19, BUT THEY ARE NOT A SUBSTITUTE FOR THE
ANALYSIS REQUIRED BY THAT RULE.  INDEED, THE SECOND SHIELDS DEFINITION
STATES, IN RATHER DIFFERENT FASHION, THE CRITERIA FOR DECISION
ANNOUNCED IN RULE 19(B).  ONE BASIS FOR DISMISSAL IS PREJUDICE TO THE
RIGHTS OF AN ABSENT PARTY THAT "CANNOT" BE AVOIDED IN ISSUANCE OF A
FINAL DECREE.  ALTERNATIVELY, IF THE DECREE CAN BE SO WRITTEN THAT IT
PROTECTS THE INTERESTS OF THE ABSENT PERSONS, BUT AS SO WRITTEN IT
LEAVES THE CONTROVERSY SO SITUATED THAT THE OUTCOME MAY BE INCONSISTENT
WITH "EQUITY AND GOOD CONSCIENCE," THE SUIT SHOULD BE DISMISSED. 

THE MAJORITY OF THE COURT OF APPEALS READ SHIELDS V. BARROW TO SAY
THAT A PERSON WHOSE INTERESTS "MAY BE AFFECTED" BY THE DECREE OF THE
COURT IS AN INDISPENSABLE PARTY, AND THAT ALL INDISPENSABLE PARTIES
HAVE A "SUBSTANTIVE RIGHT" TO HAVE SUITS DISMISSED IN THEIR ABSENCE. 
WE ARE UNABLE TO READ SHIELDS AS SAYING EITHER.  IT DEALT ONLY WITH
PERSONS WHOSE INTERESTS MUST, UNAVOIDABLY, BE AFFECTED BY A DECREE AND
IT SAID NOTHING ABOUT SUBSTANTIVE RIGHTS.  /22/  RULE 19(B), WHICH THE
COURT OF APPEALS DISMISSED AS AN INEFFECTIVE ATTEMPT TO CHANGE THE
SUBSTANTIVE RIGHTS STATED IN SHIELDS, IS, ON THE CONTRARY, A VALID
STATEMENT OF THE CRITERIA FOR DETERMINING WHETHER TO PROCEED OR DISMISS
IN THE FORCED ABSENCE OF AN INTERESTED PERSON.  IT TAKES, FOR AUGHT
THAT NOW APPEARS, ADEQUATE ACCOUNT OF THE VERY REAL, VERY SUBSTANTIVE
CLAIMS TO FAIRNESS ON THE PART OF OUTSIDERS THAT MAY ARISE IN SOME
CASES.  THIS, HOWEVER, SIMPLY IS NOT SUCH A CASE. 

        III. 

THE COURT OF APPEALS STATED A SECOND AND DISTINCT GROUND FOR
REVERSING THE DISTRICT COURT AND ORDERING DISMISSAL OF THE ACTION.  IT
WILL BE RECALLED THAT AT THE TIME THE PRESENT DECLARATORY JUDGMENT
ACTION CAME TO TRIAL TWO TORT ACTIONS WERE PENDING IN THE STATE
COURTS.  IN ONE, THE ESTATE OF THE DECEASED TRUCK DRIVER, SMITH, WAS
SUING THE ESTATE OF CIONCI, AS TORTFEASOR, PLUS DUTCHER, ON THE THEORY
THAT CIONCI WAS DOING AN ERRAND FOR HIM AT THE TIME OF THE ACCIDENT,
PLUS LYNCH'S ESTATE, ON THE THEORY THAT LYNCH HAD BEEN IN "CONTROL" OF
CIONCI.  HARRIS, THE INJURED PASSENGER, WAS SUING THE SAME THREE
DEFENDANTS ON THE SAME THEORIES IN A SEPARATE ACTION.  THE COURT OF
APPEALS CONCLUDED THAT SINCE THESE ACTIONS "PRESENTED THE MOOTED
QUESTION AS TO THE COVERAGE OF THE POLICY," THE ISSUE PRESENTED IN
THEPRESENT PROCEEDING, THE DISTRICT COURT SHOULD HAVE DECLINED
JURISDICTION IN ORDER TO ALLOW THE STATE COURTS TO SETTLE THIS QUESTION
OF STATE LAW. 

WE BELIEVE THE COURT OF APPEALS DECIDED THIS QUESTION INCORRECTLY. 
WHILE WE REAFFIRM OUR PRIOR HOLDING THAT A FEDERAL DISTRICT COURT
SHOULD, IN THE EXERCISE OF DISCRETION, DECLINE TO EXERCISE DIVERSITY
JURISDICTION OVER A DECLARATORY JUDGMENT ACTION RAISING ISSUES OF STATE
LAW WHEN THOSE SAME ISSUES ARE BEING PRESENTED CONTEMPORANEOUSLY TO
STATE COURTS, E.G., BILLHART V. EXCESS INS. CO., 316 U.S. 491, WE DO
NOT FIND THAT TO BE THE CASE HERE. 

THIS ISSUE, LIKE THE JOINDER ISSUE, WAS NOT RAISED AT TRIAL.  WHILE
WE DO NOT NOW DECLARE THAT A COURT OF APPEALS MAY NEVER ON ITS OWN
MOTION COMPEL DISMISSAL OF AN ACTION AS AN UNWARRANTED INTRUSION UPON
STATE ADJUDICATION OF STATE LAW, WE DO CONCLUDE THAT, THIS BEING A
DISCRETIONARY MATTER, THE EXISTENCE OF A VERDICT REACHED AFTER A
PROLONGED TRIAL IN WHICH THE DEFENDANTS DID NOT INVOKE THE PENDING
STATE ACTIONS SHOULD BE TAKEN INTO CONSIDERATION IN DECIDING WHETHER
DISMISSAL IS THE WISER COURSE. 

IT CAN HARDLY BE SAID THAT LYNCH'S ADMINISTRATOR, THE PLAINTIFF AND
PETITIONER IN THIS CASE, WOULD HAVE HAD A SATISFACTORY OPPORTUNITY TO
LITIGATE THE ISSUE OF CIONCI'S PERMISSION IN THE STATE ACTIONS.  THE
COURT OF APPEALS SAID THAT "ALL THE PERSONS INVOLVED IN THE ACCIDENT
WERE PARTIES" TO THE STATE-COURT ACTIONS.  IF THE IMPLICATION IS THAT
THE STATE ACTIONS COULD HAVE RESULTED IN JUDGMENTS IN FAVOR OF LYNCH'S
ESTATE AND AGAINST THE INSURANCE COMPANY ON THE ISSUE OF CIONCI'S
PERMISSION, THIS IMPLICATION IS NOT CORRECT.  THE INSURANCE COMPANY WAS
NOT A PARTY TO THE TORT ACTIONS, AND WAS NOT DEFENDING CIONCI'S
ESTATE.  LYNCH'S ESTATE WAS A PARTY ONLY IN THE SENSE THAT LYNCH'S
PERSONAL REPRESENTATIVE (A DIFFERENT PERSON FROM LYNCH'S ADMINISTRATOR,
THE PLAINTIFF IN THIS CASE) WAS MADE A DEFENDANT IN TORT.  FURTHERMORE,
THE SMITH AND HARRIS ACTIONS AGAINST CIONCI HAD NOTHING TO DO WITH THE
JUDGMENT AGAINST CIONCI'S ESTATE, THEY WOULD HAVE HAD TO BRING A
FURTHER ACTION AGAINST THE INSURANCE COMPANY; THIS FURTHER ACTION COULD
WELL HAVE BEEN BROUGHT IN A FEDERAL COURT.  IN SHORT, THE NET RESULT OF
DISMISSAL HERE WOULD PRESUMABLY HAVE BEEN A DIVERSITY ACTION IDENTICAL
WITH THIS ONE, EXCEPT THAT LYNCH'S ESTATE WOULD HAVE BEEN COMPELLED TO
WAIT UPON THE CONVENIENCE OF PLAINTIFFS OVER WHOM IT HAD NO CONTROL,
AND WOULD HAVE BEEN DEPENDENT UPON A VICTORY BY THOSE PLAINTIFFS IN A
SUIT IN WHICH IT WAS A DEFENDANT. 

THE ISSUES THAT WERE BEFORE THE STATE COURTS IN THE TORT ACTIONS
WERE NOT THE SAME AS THE ISSUES PRESENTED BY THIS CASE.  TO BE SURE, A
CRITICAL QUESTION OF FACT IN BOTH CASES WAS WHAT DUTCHER SAID TO CIONCI
WHEN HE GAVE HIM THE KEYS.  BUT IN THE STATE-COURT ACTIONS THE ULTIMATE
QUESTION WAS WHETHER CIONCI WAS ACTING AS DUTCHER'S AGENT, THUS MAKING
DUTCHER PERSONALLY LIABLE FOR CIONCI'S TORT.  IN THIS CASE THE QUESTION
WAS SIMPLY WHETHER CIONCI HAD "PERMISSION," THUS BRINGING CIONCI'S OWN
LIABILITY WITHIN THE COVERAGE OF THE INSURANCE POLICY.  RESOLUTION OF
THE "AGENCY" ISSUE IN THE STATE COURT WOULD HAVE HAD NO BEARING ON THE
"PERMISSION" ISSUE EVEN IF THAT RESOLUTION WERE BINDING ON LYNCH'S
ESTATE.  FURTHERMORE, ALTHOUGH THE STATE COURT WOULD HAVE HAD TO RULE
(AND STILL WILL HAVE TO DO SO, IF THE CASES ARE EVER TRIED) WHETHER OR
NOT DUTCHER MAY TESTIFY AGAINST THE STATES UNDER THE DEAD MAN RULE,
THIS QUESTION IS ALSO A DIFFERENT ONE IN THE STATE AND FEDERAL CASES. 
IN THE STATE CASES, DUTCHER WAS A DEFENDANT, AND THE QUESTION WOULD BE
WHETHER HE COULD TESTIFY IN DEFENSE AGAINST HIS OWN LIABILITY.  IN THE
PRESENT CASE THE QUESTION WAS RATHER WHETHER HE COULD TESTIFY, AS A
NONPARTY, ON THE COVERAGE OF HIS INSURANCE POLICY. 

WE THINK IT CLEAR THAT THE JUDGMENT BELOW CANNOT STAND.  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS
FOR CONSIDERATION OF THOSE ISSUES RAISED ON APPEAL THAT HAVE NOT BEEN
CONSIDERED, AND, SHOULD THE COURT OF APPEALS AFFIRM THE DISTRICT COURT
AS TO THOSE ISSUES, FOR APPROPRIATE DISPOSITION PRESERVING THE JUDGMENT
OF THE DISTRICT COURT AND PROTECTING THE INTERESTS OF NONJOINED
PERSONS. 

              IT IS SO ORDERED. 

/1/  APPELLANTS CHALLENGED THE DISTRICT COURT'S RULING ON THE DEAD
MAN ISSUE, THE FAIRNESS OF SUBMITTING THE QUESTION AS TO HARRIS TO A
JURY THAT HAD BEEN DIRECTED TO FIND IN FAVOR OF THE TWO ESTATES WHOSE
POSITION WAS FACTUALLY INDISTINGUISHABLBE, AND CERTAIN INSTRUCTIONS. 

/2/  FOR CONVENIENCE, WE TREAT THESE INTERESTS IN A DIFFERENT ORDER
FROM THAT APPEARING IN RULE 19(B).  OUR LIST FOLLOWS THAT OF REED,
COMPULSORY JOINDER OF PARTIES IN CIVIL ACTIONS, 55 MICH.L.REV.  327,
330 (1957). 

/3/  THE ADVISORY COMMITTEE ON THE FEDERAL RULES OF CIVIL PROCEDURE,
IN ITS NOTE ON THE 1966 REVISION OF RULE 19, QUOTED AT 3 MOORE, FEDERAL
PRACTICE PARA. 19.01 (HEREINAFTER CITED AS "COMMITTEE NOTE"), COMMENTS
AS FOLLOWS ON THE FOURTH FACTOR LISTED IN RULE 19(B), THE ADEQUACY OF
PLAINTIFF'S REMEDY IF THE ACTION IS DISMISSED:  "(THE COURT SHOULD
CONSIDER WHETHER THERE IS ANY ASSURANCE THAT THE PLAINTIFF, IF
DISMISSED, COULD SUE EFFECTIVELY IN ANOTHER FORUM WHERE BETTER JOINDER
WOULD BE POSSIBLE."  SEE FITZGERALD V. HAYNES, 241 F.2D 417, 420 (C.A.
3D CIR.); FOUKE V. SCHENEWERK, 197 F.2D 234, 236. 

/4/  THE COMMITTEE NOTE COMMENTS THAT "WHEN THE MOVING PARTY IS
SEEKING DISMISSAL IN ORDER TO PROTECT HIMSELF AGAINST A LATER SUIT BY
THE ABSENT PERSON . . . AND IS NOT SEEKING VICARIOUSLY TO PROTECT THE
ABSENT PERSON AGAINST A PREJUDICIAL JUDGMENT . . . HIS UNDUE DELAY IN
MAKING THE MOTION CAN PROPERLY BE COUNTED AGAINST HIM AS A REASON FOR
DENYING THE MOTION."  OF COURSE, WHERE AN OBJECTION TO NONJOINDER HAS
BEEN ERRONEOUSLY OVERRULED IN THE DISTRICT COURT, THE COURT OF APPEALS
MAY CORRECT THE ERROR TO PREVENT HARASSMENT OF DEFENDANTS.  YOUNG V.
POWELL, 179 F.2D 147. 

/5/  SEE THE DISCUSSION BY REED, SUPRA, N. 2, AT 330-335.  SEE ALSO
HAZARD, INDISPENSABLE PARTY:  THE HISTORICAL ORIGIN OF A PROCEDURAL
PHANTOM, 61 COL.L.REV.  1254 (1961). 

/6/  SEE KEEGAN V. HUMBLE OIL & REFINING CO., 155 F.2D 971. 

/7/  SEE BOURDIEU V. PACIFIC OIL CO., 299 U.S. 65, WHERE THIS COURT
HELD THAT AN INQUIRY INTO INDISPENSABILITY WOULD BE UNNECESSARY WHERE
THE COMPLAINT DID NOT STATE A CAUSE OF ACTION.  BUT SEE CALCOTE V.
TEXAS PAC. COAL & OIL CO., 157 F.2D 216, CRITICIZED, 2 BARRON &
HOLTZOFF, FEDERAL PRACTICE & PROCEDURE SEC. 516 (1967 SUPP.) (WRIGHT
ED.). 

/8/  E.G., HOE V. WILSON, 9 WALL.  501.  SEE GENERALLY 2 BARRON &
HOLTZOFF, FEDERAL PRACTICE & PROCEDURE SEC. 516 (1967 SUPP.) (WRIGHT
ED.). 

/9/  E.G., REED, SUPRA, N. 2.  SEE KAPLAN, CONTINUING WORK OF THE
CIVIL COMMITTEE:  1966 AMENDMENTS OF THE FEDERAL RULES OF CIVIL
PROCEDURE (I), 81 HARV.L.REV.  356 (1967).  COMPARE ROOS V. TEXAS CO.,
23 F.2D 171.     /10/  AS THE COMMITTEE NOTE POINTS OUT, THIS PRINCIPLE
MESHES WITH OTHERS TO BE CONSIDERED.  AN APPROPRIATE STATEMENT OF THE
QUESTION MIGHT BE "CAN THE DECREE BE WRITTEN SO AS TO PROTECT THE
LEGITIMATE INTERESTS OF OUTSIDERS AND, IF SO, WOULD SUCH A DECREE BE
ADEQUATE TO THE PLAINTIFF'S NEEDS AND AN EFFICIENT USE OF JUDICIAL
MACHINERY?" 

/11/  218 F.SUPP.  802, 805-806, QUOTED AT 365 F.2D, AT 805. 

/12/  RULE 19 WAS COMPLETELY REWRITTEN SUBSEQUENT TO THE PROCEEDINGS
IN THE DISTRICT COURT IN THIS CASE.  THERE IS, HOWEVER, NO OCCASION FOR
SEPARATE CONSIDERATION OF THE QUESTION WHETHER THE ACTION OF THE COURT
OF APPEALS WOULD HAVE BEEN PROPER UNDER THE OLD VERSION OF THE RULE,
THE NEW VERSION WAS ADOPTED ON JULY 1, 1966, WHILE THE APPEAL, IN WHICH
THE JOINDER QUESTION FIRST AROSE, WAS PENDING.  THE MAJORITY IN THE
COURT OF APPEALS DID NOT PURPORT TO RELY ON THE OLDER VERSION, BUT ON
ITS CONCLUSION THAT THE RULE, IN EITHER FORM, HAD NO APPLICATION TO
THIS CASE.  THE DISSENT BELOW FOUND THE RULE APPLICABLE, AND CONCLUDED
THAT THE DISTRICT COURT SHOULD NOT BE REVERSED ON THE BASIS OF EITHER
VERSION. 

THE NEW TEXT OF THE RULE WAS NOT INTENDED AS A CHANGE IN
PRINCIPLES.  RATHER, THE COMMITTEE FOUND THAT THE OLD TEXT "WAS
DEFENCTIVE IN ITS PHRASING AND DID NOT POINT CLEARLY TO THE PROPER
BASIS OF DECISION."  THIS COURT, HAVING THE ULTIMATE RULE-MAKING
AUTHORITY SUBJECT TO CONGRESSIONAL VETO, APPROVED THE COMMITTEE'S
SUGGESTIONS.  WHERE THE NEW VERSION EMPHASIZES THE PRAGMATIC
CONSIDERATION OF THE EFFECTS OF THE ALTERNATIVES OF PROCEEDING OR
DISMISSING, THE OLDER VERSION TENDED TO EMPHASIZE CLASSIFICATION OF
PARTIES AS "NECESSARY" OR "INDISPENSABLE."  ALTHOUGH THE TWO APPROACHES
SHOULD COME TO THE SAME POINT, SINCE THE ONLY REASON FOR ASKING WHETHER
A PERSON IS "NECESSARY"  OR "INDISPENSABLE" IS IN ORDER TO DECIDE
WHETHER TO PROCEED OR DISMISS IN HIS ABSENCE AND SINCE THAT DECISION
MUST BE MADE ON THE BASIS OF PRACTICAL CONSIDERATIONS, SHAUGHNESSY V.
PEDREIRO, 349 U.S. 48, AND NOT BY "PRESCRIBED FORMULA," NILES-BEMENT
CO. V. IRON MOULDERS UNION, 254 U.S. 77, THE COMMITTEE CONCLUDED,
WITHOUT DIRECTLY CRITICIZING THE OUTCOME OF ANY PARTICULAR CASE, THAT
THERE HAD AT TIMES BEEN "UNDUE PREOCCUPATION WITH ABSTRACT
CLASSIFICATIONS OF RIGHTS OR OBLIGATIONS, AS AGAINST CONSIDERATION OF
THE PARTICULAR CONSEQUENCES OF PROCEEDING WITH THE ACTION AND THE WAYS
BY WHICH THESE CONSEQUENCES MIGHT BE AMELIORATED BY THE SHAPING OF
FINAL RELIEF OR OTHER PRECAUTIONS."  AN EXCELLENT EXAMPLE OF THE CASES
CAUSING APPREHENSION IS PARKER RUST-PROOF CO. V. WESTERN UNION TEL.
CO., 105 F.2D 976.  JUDGE SWAN, WRITING FOR A PANEL THAT INCLUDED
JUDGES L. HAND AND A. N. HAND, STATED THAT A NONJOINED PERSON WAS AN
"INDISPENSABLE" PARTY TO A SUIT TO COMPEL ISSUANCE OF A PATENT, BUT
WENT ON TO SAY THAT "AS THE OBJECT OF THE RULE RESPECTING INDISPENSABLE
PARTIES IS TO ACCOMPLISH JUSTICE BETWEEN ALL THE PARTIES IN INTEREST,
COURTS OF EQUITY WILL NOT SUFFER IT TO BE SO APPLIED AS TO DEFEAT THE
VERY PURPOSES OF JUSTICE."  ID., AT 980.  ON THIS BASIS, THE COURT OF
APPEALS REVERSED THE DISTRICT COURT'S DISMISSAL OF THE ACTION FOR
NONJOINDER.  UNDER THE PRESENT VERSION OF THE RULE, THE SAME RESULT
WOULD BE REACHED FOR, ULTIMATELY, THE SAME REASONS.  THE PRESENT
VERSION SIMPLY AVOIDS THE PURELY VERBAL ANOMALY, AN INDISPENSABLE
PERSON WHO TURNS OUT TO BE DISPENSABLE AFTER ALL. 

/13/  ONE COMMENTATOR HAS STATED THAT "(IF THIS (HE COURT OF
APPEALS' POSITION IN THE PRESENT CASE) IS SOUND, AMENDED RULE 19 WOULD
BE INVALID.  BUT THERE IS NO CASE SUPPORT FOR THE PROPOSITION THAT THE
JUDGE-MADE DOCTRINES OF COMPULSORY JOINDER HAVE CREATED SUBSTANTIVE
RIGHTS BEYOND THE REACH OF THE RULEMAKING POWER."  2 BARRON & HOLTZOFF,
FEDERAL PRACTICE & PROCEDURE SEC. 512, N. 21.14 (1967 SUPP.) (WRIGHT
ED.). 

/14/  AS THE COURT HAS BEFORE REMARKED, "(THERE IS NO PRESCRIBED
FORMULA FOR DETERMINING IN EVERY CASE WHETHER A PERSON . . . IS AN
INDISPENSABLE PARTY.  . . . "  NILES-BEMENT CO. V. IRON MOULDERS UNION,
254 U.S. 77, AT 80. 

/15/  THE COMMITTEE NOTE PUTS THE MATTER AS FOLLOWS:  "THE
SUBDIVISION (19(B)) USES THE WORD 'INDISPENSABLE' ONLY IN A CONCLUSORY
SENSE, THAT IS, A PERSON IS 'REGARDED AS INDISPENSABLE' WHEN HE CANNOT
BE MADE A PARTY AND, UPON CONSIDERATION OF THE FACTORS ABOVE MENTIONED,
IT IS DETERMINED THAT IN HIS ABSENCE IT WOULD BE PREFERABLE TO DISMISS
THE ACTION, RATHER THAN TO RETAIN IT." 

/16/  NUMEROUS CASES IN THE LOWER FEDERAL COURTS HAVE DEALT WITH
COMPULSORY JOINDER, AND THE COURT OF APPEALS CONCLUDED THAT PRINCIPLES
ENUNCIATED IN THOSE CASES REQUIRED DISMISSAL HERE.  HOWEVER, NONE OF
THE CASES CITED HERE OR BELOW PRESENTED A FACTUAL SITUATION RESEMBLING
THIS CASE:  THE ERROR MADE BY THE COURT OF APPEALS WAS PRECISELY ITS
RELIANCE ON FORMULAS EXTRACTED FROM THEIR CONTEXTS RATHER THAN ON
PRAGMATIC ANALYSIS.  MOREOVER, ALTHOUGH THE COURT OF APPEALS CONCLUDED
THAT THE "DISTILLED ESSENCE" OF EARLIER CASES IS THAT THE QUESTION
WHETHER TO DISMISS IS "SUBSTANTIVE" AND THAT "RULE 19 DOES NOT APPLY TO
THE INDISPENSABLE PARTY DOCTRINE," IT FOUND NO CASES ACTUALLY SO
HOLDING. 

ONE OF THE REASONS LISTED BY THE COMMITTEE NOTE FOR THE CHANGE IN
THE WORDING OF RULE 19 WAS "FAILURE TO POINT TO CORRECT BASIS OF
DECISION."  THE IMPRECISE AND CONFUSING LANGUAGE OF THE ORIGINAL
WORDING OF THE RULE PRODUCED A VARIETY OF RESPONSES IN THE LOWER
COURTS.  IN SOME CASES A FORMULAIC APPROACH WAS EMPLOYED, MAKING IT
DIFFICULT NOW TO DETERMINE WHETHER THE RESULT REACHED WAS PROPER OR
NOT.  OTHER CASES DEMONSTRATE CLOSE ATTENTION TO THE SIGNIFICANT
PRAGMATIC CONSIDERATIONS INVOLVED IN THE PARTICULAR CIRCUMSTANCES,
LEADING TO A RESOLUTION CONSISTENT WITH PRACTICAL AND CREATIVE
JUSTICE.  FOR EXAMPLES IN THE LATTER CATEGORY, SEE ROOS V. TEXAS CO.,
23 F.2D 171 (C.A. 2D CIR.) (L. HAND, J.)  (DECIDED PRIOR TO ADOPTION OF
FED. RULES CIV. PROC.); KROESE V. GERNERAL STEEL CASTINGS CORP., 179
F.2D 760 (C.A. 3D CIR.) (GOODRICH, J.); STEVENS V. LOOMIS, 334 F.2D 775
(C.A. 1ST CIR.) (ALDRICH, J.).  IT IS INTERESTING THAT THE ONLY
JUDICIAL RECOGNITION FOUND BY THE COURT OF APPEALS OF ITS VIEW THAT
INDISPENSABILITY IS A "SUBSTANTIVE" MATTER IS A FOOTNOTE IN THE LAST
CITED CASE ATTRIBUTING TO THE (THEN) PROPOSED NEW FORMULATION OF RULE
19 "THE VIEW THAT WHAT ARE INDISPENSABLE PARTIES IS A MATTER OF
SUBSTANCE, NOT OF PROCEDURE."  ID., AT 778, N. 7.  TAKEN IN CONTEXT,
JUDGE ALDRICH'S STATEMENT REFERS SIMPLY TO THE VIEW THAT A DECISION
WHETHER TO DISMISS MUST BE MADE PRAGMATICALLY, IN THE CONTEXT OF THE
"SUBSTANCE" OF EACH CASE, RATHER THAN BY PROCEDURAL FORMULA.  THE
STATEMENT IS HARDLY SUPPORT FOR THE PROPOSITION THAT A COURT OF APPEALS
MAY IGNORE RULE 19'S COMMAND TO UNDERTAKE A PRACTICAL EXAMINATION OF
CIRCUMSTANCES. 

/17/  ELMENDORF V. TAYLOR, 10 WHEAT.  152, AT 166-168. 

/18/  12 WHEAT.,AT 198, QUOTED AT 365 F.2D, AT 806.  THE FACTS WERE
THAT T, A TRUSTEE OF LAND FOR THE BENEFIT OF CERTAIN PERSONS, MAY OR
MAY NOT HAVE CONVEYED LEGAL TITLE TO DEFENDANT HINDE.  PLAINTIFF MALLOW
CLAIMED EQUITABLE TITLE BY VIRTUE OF AN EXECUTORY AGREEMENT BETWEEN THE
TRUST BENEFICIARIES AND ONE LANGHAM, WHO CONVEYED TO PLAINTIFF.  MALLOW
SUED HINDE TO COMPEL CONVEYANCE OF THE LEGAL TITLE, BUT T AND THE
BENEFICIARIES COULD NOT BE JOINED.  HINDE CONTENDED THAT THE
BENEFICIARIES HAD NO POWER TO SELL TO LANGHAM, AND THAT THE PURPORTED
CONTRACT HAD, IN ANY EVENT, BEEN OBTAINED BY FRAUD. 

/19/  15 HOW.,AT 246, QUOTED AT 365 F.2D, AT 806. 

/20/  17 HOW.,AT 139. 

/21/  IBID.  PLAINTIFF WAS SUING FOR RESCISSION OF A CONTRACT BUT
WAS UNABLE TO JOIN SOME OF THE PARTIES TO IT.  REED, SUPRA, N. 2,
COMMENTS THAT MUCH LATER DIFFICULTY COULD HAVE BEEN AVOIDED HAD THIS
COURT POINTED THE WAY IN SHIELDS BY UNDERTAKING A PRACTICAL EXAMINATION
OF THE FACTS.  ID., AT 340-346.  HE CONCLUDED THAT "THE FACTS IN THE
OPINION ARE INSUFFICIENT TO DEMONSTRATE THAT THE RESULT IS A JUST
ONE."  ID., AT 344.  SEE ALSO KAPLAN, SUPRA, N. 9, AT 361. 

/22/  INDEED, FOR EXAMPLE, IT HAS BEEN CLEAR THAT IN A DIVERSITY
CASE THE QUESTION OF JOINDER IS ONE OF FEDERAL LAW.  E.G., DEKORWIN V.
FIRST NAT. BANK, 156 F.2D 858, 860, CITING SHIELDS.  TO BE SURE, STATE
LAW QUESTIONS MAY ARISE IN DETERMINING WHAT INTEREST THE OUTSIDER
ACTUALLY HAS, E.G., KROESE V. GENERAL STEEL CASTINGS CORP., 179 F.2D
760 (C.A. 3D CIR.), BUT THE ULTIMATE QUESTION WHETHER, GIVEN THOSE
STATE-DEFINED INTERESTS, A FEDERAL COURT MAY PROCEED WITHOUT THE
OUTSIDER IS A FEDERAL MATTER. 

AVRAM G. ADLER ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEF WERE ABRAHAM E. FREEDMAN, J. WILLISON SMITH AND BAYARD M. GRAF. 

NORMAN PAUL HARVEY ARGUED THE CAUSE AND FILED A BRIEF FOR
RESPONDENTS. 
..END :








SMITH V. ILLINOIS, 390 U.S. 129 


       SMITH V. ILLINOIS. 

        CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIRST

           DISTRICT. 

        NO. 158.  ARGUED DECEMBER 7, 1967.-- DECIDED JANUARY 29,

           1968. 


WHERE ON CROSS-EXAMINATION OF PRINCIPAL PROSECUTION WITNESS AT
PETITIONER'S STATE TRIAL FOR ILLEGAL SALE OF NARCOTICS THE COURT
SUSTAINED THE PROSECUTOR'S OBJECTIONS TO DISCLOSURE OF WITNESS' CORRECT
NAME AND HIS ADDRESS, HELD PETITIONER WAS DENIED HIS SIXTH AMENDMENT
RIGHT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT, TO
CONFRONT THE WITNESSES AGAINST HIM.  ALFORD V. UNITED STATES, 282 U.S.
684, FOLLOWED.  PP. 131-133. 

70 ILL.APP.2D 289, 217 N.E.2D 546, REVERSED. 

OPINION OF THE COURT BY MR. JUSTICE STEWART, ANNOUNCED BY MR. JUSTICE
FORTAS. 

IN POINTER V. TEXAS, 380 U.S. 400, 403, THIS COURT HELD THAT THE
SIXTH AMENDMENT RIGHT OF AN ACCUSED TO CONFRONT THE WITNESSES AGAINST
HIM IS A "FUNDAMENTAL RIGHT . . . MADE OBLIGATORY ON THE STATES BY THE
FOURTEENTH AMENDMENT."  THE QUESTION PRESENTED IN THIS CASE IS WHETHER
ILLINOIS DENIED THAT RIGHT TO THE PETITIONER, FLEMING SMITH.  HE WAS
CONVICTED IN A CRIMINAL COURT OF COOK COUNTY, ILLINOIS, UPON A CHARGE
OF ILLEGAL SALE OF NARCOTICS, AND HIS CONVICTION WAS AFFIRMED ON
APPEAL.  /1/  WE GRANTED CERTIORARI TO CONSIDER HIS CONSTITUTIONAL
CLAIM.  /2/ 

AT THE TRIAL THE PRINCIPAL WITNESS AGAINST THE PETITIONER WAS A MAN
WHO IDENTIFIED HIMSELF ON DIRECT EXAMINATION AS "JAMES JORDAN;"  THIS
WITNESS TESTIFIED THAT HE HAD PURCHASED A BAG OF HEROIN FROM THE
PETITIONER IN A RESTAURANT WITH MARKED MONEY PROVIDED BY TWO CHICAGO
POLICE OFFICERS.  THE OFFICERS CORROBORATED PART OF THIS TESTIMONY, /3/
BUT ONLY THIS WITNESS AND THE PETITIONER TESTIFIED TO THE CRUCIAL
EVENTS INSIDE THE RESTAURANT, AND THE PETITIONER'S VERSION OF THOSE
EVENTS WAS ENTIRELY DIFFERENT.  /4/  THE ONLY REAL QUESTION AT THE
TRIAL, THEREFORE, WAS THE RELATIVE CREDIBILITY OF THE PETITIONER AND
THIS PROSECUTION WITNESS. 

ON CROSS-EXAMINATION THIS WITNESS WAS ASKED WHETHER "JAMES JORDAN"
WAS HIS REAL NAME.  HE ADMITTED, OVER THE PROSECUTOR'S OBJECTION, THAT
IT WAS NOT.  HE WAS THEN ASKED WHAT HIS CORRECT NAME WAS, AND THE COURT
SUSTAINED THE PROSECUTOR'S OBJECTION TO THE QUESTION.  /5/  LATER THE
WITNESS WAS ASKED WHERE HE LIVED, AND AGAIN THE COURT SUSTAINED THE
PROSECUTOR'S OBJECTION TO THE QUESTION.  /6/

AS THE COURT SAID IN POINTER, "IT CANNOT SERIOUSLY BE DOUBTED AT
THIS LATE DATE THAT THE RIGHT OF CROSS-EXAMINATION IS INCLUDED IN THE
RIGHT OF AN ACCUSED IN A CRIMINAL CASE TO CONFRONT THE WITNESSES
AGAINST HIM."  380 U.S.,AT 404.  EVEN MORE RECENTLY WE HAVE REPEATED
THAT "A DENIAL OF CROSS-EXAMINATION WITHOUT WAIVER . . . WOULD BE
CONSTITUTIONAL ERROR OF THE FIRST MAGNITUDE AND NO AMOUNT OF SHOWING OF
WANT OF PREJUDICE WOULD CURE IT."  BROOKHART V. JANIS, 384 U.S. 1, 3. 

IN THE PRESENT CASE THERE WAS NOT, TO BE SURE, A COMPLETE DENIAL OF
ALL RIGHT OF CROSS-EXAMINATION.  BUT THE PETITIONER WAS DENIED THE
RIGHT TO ASK THE PRINCIPAL PROSECUTION WITNESS EITHER HIS NAME OR WHERE
HE LIVED, ALTHOUGH THE WITNESS ADMITTED THAT THE NAME HE HAD FIRST
GIVEN WAS FALSE.  YET WHEN THE CREDIBILITY OF A WITNESS IS IN ISSUE,
THE VERY STARTING POINT IN "EXPOSING FALSEHOOD AND BRINGING OUT THE
TRUTH"  /7/  THROUGH CROSS-EXAMINATION MUST NECESSARILY BE TO ASK THE
WITNESS WHO HE IS AND WHERE HE LIVES.  THE WITNESS' NAME AND ADDRESS
OPEN COUNTLESS AVENUES OF IN-COURT EXAMINATION AND OUT-OF-COURT
INVESTIGATION.  TO FORBID THIS MOST RUDIMENTARY INQUIRY AT THE
THRESHOLD IS EFFECTIVELY TO EMASCULATE THE RIGHT OF CROSS-EXAMINATION
ITSELF. 

IN ALFORD V. UNITED STATES, 282 U.S. 687, THIS COURT ALMOST 40 YEARS
AGO UNANIMOUSLY REVERSED A FEDERAL CONVICTION BECAUSE THE TRIAL JUDGE
HAD SUSTAINED OBJECTIONS TO QUESTIONS BY THE DEFENSE SEEKING TO ELICIT
THE "PLACE OF RESIDENCE" OF A PROSECUTION WITNESS OVER THE INSISTENCE
OF DEFENSE COUNSEL THAT "THE JURY WAS ENTITLED TO KNOW 'WHO THE WITNESS
IS, WHERE HE LIVES AND WHAT HIS BUSINESS IS.'"  282 U.S.,AT 688-689. 
WHAT THE COURT SAID IN REVERSING THAT CONVICTION IS FULLY APPLICABLE
HERE: 

"IT IS THE ESSENCE OF A FAIR TRIAL THAT REASONABLE LATITUDE BE GIVEN
THE CROSS-EXAMINER, EVEN THOUGH HE IS UNABLE TO STATE TO THE COURT WHAT
FACTS A REASONABLE CROSS-EXAMINATION MIGHT DEVELOP.  PREJUDICE ENSUES
FROM A DENIAL OF THE OPPORTUNITY TO PLACE THE WITNESS IN HIS PROPER
SETTING AND PUT THE WEIGHT OF HIS TESTIMONY AND HIS CREDIBILITY TO A
TEST, WITHOUT WHICH THE JURY CANNOT FAIRLY APPRAISE THEM.  . . . TO SAY
THAT PREJUDICE CAN BE ESTABLISHED ONLY BY SHOWING THAT THE CROSS
EXAMINATION, IF PURSUED, WOULD NECESSARILY HAVE BROUGHT OUT FACTS
TENDING TO DISCREDIT THE TESTIMONY IN CHIEF, IS TO DENY A SUBSTANTIAL
RIGHT AND WITHDRAW ONE OF THE SAFEGUARDS ESSENTIAL TO A FAIR TRIAL.  .
. . 

     " . . . THE QUESTION 'WHERE DO YOU LIVE?'  WAS NOT ONLY AN

  APPROPRIATE PRELIMINARY TO THE CROSS-EXAMINATION OF THE WITNESS,

BUT ON ITS FACE, WITHOUT ANY SUCH DECLARATION OF PURPOSE AS WAS

  MADE BY COUNSEL HERE, WAS AN ESSENTIAL STEP IN IDENTIFYING THE

  WITNESS WITH HIS ENVIRONMENT, TO WHICH CROSS-EXAMINATION MAY

  ALWAYS BE DIRECTED.  . . .

        .         .          .          . 

     "THE EXTENT OF CROSS-EXAMINATION WITH RESPECT TO AN
APPROPRIATE

  SUBJECT OF IS WITHIN THE SOUND DISCRETION OF THE TRIAL COURT.  IT

  MAY EXERCISE A REASONABLE JUDGMENT IN DETERMINING WHEN THE

SUBJECT IS EXHAUSTED.  . . . BUT NO OBLIGATION IS IMPOSED ON THE

  COURT, SUCH AS THAT SUGGESTED BELOW, TO PROTECT A WITNESS FROM

  BEING DISCREDITED ON CROSS-EXAMINATION, SHORT OF AN ATTEMPTED

  INVASION OF HIS CONSTITUTIONAL PROTECTION FROM SELF

  INCRIMINATION, PROPERLY INVOKED.  THERE IS A DUTY TO PROTECT HIM

  FROM QUESTIONS WHICH GO BEYOND THE BOUNDS OF PROPER

  CROSS-EXAMINATION MERELY TO HARASS, ANNOY OR HUMILIATE HIM.  . .
.

  BUT NO SUCH CASE IS PRESENTED HERE.  . . ."  282 U.S.,AT 692
694. 

IN POINTER V. TEXAS, SUPRA, THE COURT MADE CLEAR THAT "THE RIGHT OF
AN ACCUSED TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM MUST BE
DETERMINED BY THE SAME STANDARDS WHETHER THE RIGHT IS DENIED IN A
FEDERAL OR STATE PROCEEDING.  . . . "  380 U.S.,AT 407-408.  IN THIS
STATE CASE WE FOLLOW THE STANDARD OF ALFORD AND HOLD THAT THE
PETITIONER WAS DEPRIVED OF A RIGHT GUARANTEED TO HIM UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION.  /8/

        REVERSED. 

/1/  70 ILL.APP.2D 289, 217 N.E.2D 546. 

/2/  387 U.S. 904. 

/3/  THE OFFICERS TESTIFIED THAT THE WITNESS HAD ENTERED THE
RESTAURANT WITH THE MARKED MONEY AND WITHOUT NARCOTICS, AND THAT HE HAD
EMERGED WITH A BAG OF HEROIN.  THEY ALSO TESTIFIED THAT THEY HAD FOUND
SOME OF THE MARKED MONEY IN THE PETITIONER'S POSSESSION WHEN THEY
ARRESTED HIM. 

/4/  THE PETITIONER TESTIFIED THAT HE HAD REFUSED TO SELL THE
WITNESS NARCOTICS BUT HAD DIRECTED HIM TO ANOTHER MAN IN THE RESTAURANT
FROM WHOM HE BELIEVED A PURCHASE HAD BEEN MADE.  THE PETITIONER ALSO
TESTIFIED THAT HE USED A $5 BILL TO PURCHASE A CUP OF COFFEE, AND MUST
HAVE RECEIVED THE MARKED MONEY IN HIS CHANGE. 

/5/  "MR. PRIDE:  IS JAMES JORDAN YOUR CORRECT NAME? 

"MR. MARTWICK:  OBJECT. 

"MR. PRIDE:  I HAVE A RIGHT TO KNOW IF IT IS HIS CORRECT NAME. 

"THE COURT:  HE MAY ANSWER IF IT IS HIS CORRECT NAME OR NOT. 

"MR. PRIDE: IS THAT YOUR CORRECT NAME? 

"A.  NO, IT IS NOT. 

"Q.  WHAT IS YOUR CORRECT NAME? 

"MR. MARTWICK:  OBJECT. 

"THE COURT:  I WON'T HAVE HIM ANSWER THAT." 

/6/  "Q.  NOW, WHERE DO YOU LIVE NOW? 

"MR. MARTWICK:  OBJECTION. 

"MR. PRIDE:  THIS IS MATERIAL. 

"MR. MARTWICK:  OBJECTION, JUDGE. 

"THE COURT:  YES, OBJECTION ALLOWED." 

THE RECORD SHOWS THAT IN FACT THE PETITIONER AND HIS LAWYER KNEW
"JORDAN" AND THAT THE LAWYER HAD ONCE REPRESENTED HIM; HOWEVER, THERE
IS NO EVIDENCE IN THE RECORD THAT EITHER THE PETITIONER OR HIS LAWYER
KNEW "JORDAN'S" CORRECT NAME OR WHERE HE WAS LIVING AT THE TIME OF THIS
TRIAL. 

/7/  SEE POINTER V. TEXAS, 380 U.S.,AT 404. 

/8/  IT IS TO BE NOTED THAT NO CLAIM OF THE PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION WAS ASSERTED BY "JAMES JORDAN."  CF.
UNITED STATES V. CARDILLO, 316 F.2D 606.  NOR ARE THIS COURT'S
DECISIONS IN MCCRAY V. ILLINOIS, 386 U.S. 300, AND ROVIARO V. UNITED
STATES, 353 U.S. 53, RELEVANT HERE.  IN NEITHER OF THOSE CASES WAS THE
INFORMER A WITNESS FOR THE PROSECUTION.  ANOTHER RECENT ILLINOIS
DECISION SEEMS TO HAVE RECOGNIZED THAT THE STATE EVIDENTIARY INFORMER
PRIVILEGE IS NOT INVOLVED WHEN THE INFORMER IS HIMSELF A WITNESS AT THE
TRIAL.  PEOPLE V; SMITH, 69 ILL.APP.2D 83, 89, 216 N.E.2D 520, 523. 
SEE 8 WIGMORE, EVIDENCE 2374, N. 6 (MCNAUGHTON REV. 1961). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE MARSHALL JOINS,
CONCURRING. 

IN ALFORD V. UNITED STATES, 282 U.S. 687, 694 (1931), THE COURT
RECOGNIZED THAT QUESTIONS WHICH TEND MERELY TO HARASS, ANNOY, OR
HUMILIATE A WITNESS MAY GO BEYOND THE BOUNDS OF PROPER CROSS
EXAMINATION.  I WOULD PLACE IN THE SAME CATEGORY THOSE INQUIRIES WHICH
TEND TO ENDANGER THE PERSONAL SAFETY OF THE WITNESS.  BUT IN THESE
SITUATIONS, IF THE QUESTION ASKED IS ONE THAT IS NORMALLY PERMISSIBLE,
THE STATE OR THE WITNESS SHOULD AT THE VERY LEAST COME FORWARD WITH
SOME SHOWING OF WHY THE WITNESS MUST BE EXCUSED FROM ANSWERING THE
QUESTION.  THE TRIAL JUDGE CAN THEN ASCERTAIN THE INTEREST OF THE
DEFENDANT IN THE ANSWER AND EXERCISE AN INFORMED DISCRETION IN MAKING
HIS RULING.  HERE THE STATE GAVE NO REASONS JUSTIFYING THE REFUSAL TO
ANSWER A QUITE USUAL AND PROPER QUESTION.  FOR THIS REASON I JOIN THE
COURT'S JUDGMENT AND ITS OPINION WHICH, AS I UNDERSTAND IT, IS NOT
INCONSISTENT WITH THESE VIEWS.  I SHOULD NOTE IN ADDITION THAT ALTHOUGH
PETITIONER AND HIS ATTORNEY MAY HAVE KNOWN THE WITNESS IN THE PAST, IT
IS NOT AT ALL CLEAR THAT EITHER OF THEM HAD EVER KNOWN THE WITNESS'
REAL NAME OR KNEW WHERE HE LIVED AT THE TIME OF THE TRIAL. 

MR. JUSTICE HARLAN, DISSENTING. 

WE GRANTED CERTIORARI IN THIS CASES BELIEVING THAT IT PRESENTED WITH
REQUISITE CLARITY THE ISSUE WHETHER A DEFENDANT IN A STATE CRIMINAL
TRIAL MAY CONSTITUTIONALLY BE DENIED ON CROSS-EXAMINATION OF A
PRINCIPAL STATE WITNESS THE RIGHT TO QUESTION SUCH WITNESS AS TO HIS
ACTUAL NAME AND ADDRESS.  WERE I STILL OF THE VIEW, AFTER EXAMINATION
OF THE RECORD, THAT THIS CASE CLEARLY PRESENTS THAT QUESTION, I WOULD
CONCUR IN THE COURT'S JUDGMENT ON DUE PROCESS, BUT NOT ON SIXTH
AMENDMENT "INCORPORATION," GROUNDS; /1/  THE RECORD, HOWEVER, RAISES
SERIOUS DOUBT THAT THIS PETITIONER WAS DENIED ANY INFORMATION THAT HE
DID NOT ALREADY HAVE, THUS EITHER RENDERING THE ERROR HARMLESS OR AT
LEAST MAKING THE ISSUE INAPPROPRIATE FOR CONSTITUTIONAL ADJUDICATION. 

THE STATE'S WITNESS IDENTIFIED HIMSELF AS "JAMES JORDAN." 
APPARENTLY KNOWING THAT THIS WAS NOT HIS REAL OR HIS ONLY NAME, DEFENSE
COUNSEL ASKED JORDAN WHETHER THAT WAS HIS CORRECT NAME, AND RECEIVED A
NEGATIVE REPLY; FURTHER INQUIRY WAS DISALLOWED BY THE TRIAL JUDGE AS TO
BOTH THE WITNESS' NAME AND ADDRESS.  LATER, HOWEVER, DEFENSE COUNSEL
SAID OF THE WITNESS "I REPRESENTED HIM BEFORE, I KNOW HIM."  STILL
LATER, WHEN ASKED BY DEFENSE COUNSEL ON DIRECT EXAMINATION HOW LONG HE
HAD KNOWN JAMES JORDAN, THE DEFENDANT REPLIED, "I'D SAY A FEW YEARS OR
SO, CASUALLY."  THE DEFENDANT ALSO INDICATED THAT HE KNEW JORDAN TO BE
A NARCOTICS ADDICT, AND THAT HE KNEW THAT JORDAN WAS ACQUAINTED WITH A
PERSON WHOSE LEGAL NAME HE KNEW TO BE HERBERT SIMPSON. 

IN THE FACE OF THESE DEVELOPMENTS, THE COURT'S SUGGESTION THAT
PERHAPS THE DEFENSE NEVERTHELESS DID NOT KNOW JORDAN'S NAME OR ADDRESS
IS, TO SAY THE LEAST, EXCEEDINGLY DUBIOUS.  AT NO POINT DID DEFENSE
COUNSEL, OR DEFENDANT, STATE THAT HE LACKED THE REQUESTED INFORMATION,
NOR DID COUNSEL PURSUE THE POINT WITH ANY VIGOR AFTER THE STATE'S
OBJECTIONS TO THE QUESTIONS; HE SIMPLY TURNED TO ANOTHER SERIES OF
QUESTIONS WITHOUT SUGGESTING ANY WAY IN WHICH HIS ATTEMPT TO PRESENT A
DEFENSE HAD BEEN PREJUDICED.  THE INFERENCE SEEMS TO ME PATENT THAT
COUNSEL WAS ASKING ROUTINE QUESTIONS, TO WHICH HE ALREADY KNEW THE
ANSWERS, AND THAT HIS FAILURE TO GET ANSWERS IN COURT WAS OF NO
CONSEQUENCE. 

I WOULD NOT REVERSE A STATE CONVICTION ON A RECORD SO OPAQUE, INDEED
ONE SAVORING OF A DISINGENUOUS CONSTITUTIONAL CONTENTION.  CF. RESCUE
ARMY V. MUNICIPAL COURT, 331 U.S. 549; POE V. ULLMAN, 367 U.S. 497.  I
WOULD THEREFORE DISMISS THE WRIT AS IMPROVIDENTLY GRANTED. 

/1/  SEE MY OPINION CONCURRING IN THE RESULT IN POINTER V. TEXAS,
380 U.S. 400, 408. 

GERALD W. GETTY ARGUED THE CAUSE FOR PETITIONER.  WITH HIM ON THE
BRIEFS WERE JAMES J. DOHERTY AND MARSHALL J. HARTMAN. 

JOHN J. O'TOOLE, ASSISTANT ATTORNEY GENERAL OF ILLINOIS, ARGUED THE
CAUSE FOR RESPONDENT.  WITH HIM ON THE BRIEF WERE WILLIAM G. CLARK,
ATTORNEY GENERAL, AND PHILIP J. ROCK, ASSISTANT ATTORNEY GENERAL. 
..END :













TEITEL FILM CORP. V. CUSACK, 390 U.S. 139 


       TEITEL FILM CORP. ET AL. V. CUSACK ET AL., MEMBERS OF THE

           MOTION PICTURE APPEAL BOARD OF THE CITY OF CHICAGO. 

        APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

        NO. 787.  DECIDED JANUARY 29, 1968. 


APPELLANTS, WHO WERE PERMANENTLY ENJOINED BY THE ILLINOIS COURTS FROM
SHOWING CERTAIN MOTION PICTURES, CHALLENGED THE CHICAGO MOTION PICTURE
CENSORSHIP ORDINANCE AS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED. 
THE ORDINANCE ALLOWS 50 TO 57 DAYS TO COMPLETE THE ADMINISTRATIVE
PROCESS, AND THERE IS NO PROVISION FOR A PROMPT JUDICIAL DECISION BY
THE TRIAL COURT OF THE ALLEGED OBSCENITY OF THE FILM.  HELD:
APPELLANTS' CONSTITUTIONAL RIGHTS WERE VIOLATED SINCE THE REQUIREMENTS
OF FREEDMAN V. MARYLAND, 380 U.S. 51, THAT THE CENSOR WITHIN A
"SPECIFIED BRIEF PERIOD" EITHER ISSUE A LICENSE OR GO TO COURT TO
RESTRAIN SHOWING THE FILM, AND THT THERE BE "PROMPT FINAL JUDICIAL
DECISION," WERE NOT MET. 

38 ILL.2D 53, 230 N.E.2D 241, JUDGMENTS REVERSED AND REMANDED. 

PER CURIAM. 

THIS APPEAL SEEKS REVIEW OF JUDGMENTS OF THE SUPREME COURT OF
ILLINOIS WHICH AFFIRMED ORDERS OF THE CIRCUIT COURT OF COOK COUNTY
PERMANENTLY ENJOINING THE APPELLANTS FROM SHOWING CERTAIN MOTION
PICTURES IN PUBLIC PLACES IN THE CITY OF CHICAGO, 38 ILL.2D 53, 230
N.E.2D 241.  THE QUESTIONS PRESENTED ARE WHETHER THE CHICAGO MOTION
PICTURE CENSORSHIP ORDINANCE IS UNCONSTITUTIONAL ON ITS FACE AND AS
APPLIED, AND WHETHER THE FILMS INVOLVED ARE OBSCENE.  /1/ 

THE CHICAGO MOTION PICTURE CENSORSHIP ORDINANCE PROHIBITS THE
EXHIBITION IN ANY PUBLIC PLACE OF "ANY PICTURE . . , WITHOUT FIRST
HAVING SECURED A PERMIT THEREFOR FROM THE SUPERINTENDENT OF POLICE." 
THE SUPERINTENDENT IS REQUIRED "WITHIN THREE DAYS OF RECEIPT" OF FILMS
TO "INSPECT SUCH . . . FILMS . . . OR CUASE THEM TO BE INSPECTED BY THE
FILM REVIEW SECTION . . . AND WITHIN THREE DAYS AFTER SUCH INSPECTION"
EITHER TO GRANT OR DENY THE PERMIT.  /2/  IF THE PERMIT IS DENIED THE
EXHIBITOR MAY WITHIN SEVEN DAYS SEEK REVIEW BY THE MOTION PICTURE
APPEAL BOARD.  THE APPEAL BOARD MUST REVIEW THE FILM WITHIN 15 DAYS OF
THE REQUEST FOR REVIEW, AND THEREAFTER WITHIN 15 DAYS AFFORD THE
EXHIBITOR, HIS AGENT OR DISTRIBUTOR A HEARING.  THE BOARD MUST SERVE
THE APPLICANT WITH WRITTEN NOTICE OF ITS RULING WITHIN FIVE DAYS AFTER
CLOSE OF THE HEARING.  IF THE BOARD DENIES THE PERMIT, "THE BOARD,
WITHIN TEN DAYS FROM THE HEARING, SHALL FILE WITH THE CIRCUIT COURT OF
COOK COUNTY AN ACTION FOR AN INJUNCTION AGAINST THE SHOWING OF THE
FILM."  A CIRCUIT COURT RULE, GENERAL ORDER 3-3, PROMULGATED MAY 26,
1965, PROVIDES THAT A "COMPLAINT FOR INJUNCTION . . . SHALL BE GIVEN
PRIORITY OVER ALL OTHER CAUSES.  THE COURT SHALL SET THE CAUSE FOR
HEARING WITHIN FIVE (5) DAYS AFTER THE DEFENDANT HAS ANSWERED.  . . . "
/3/  HOWEVER, NEITHER THE RULE NOR ANY STATUTORY OR OTHER PROVISION
ASSURES A PROMPT JUDICIAL DECISION OF THE QUESTION OF THE ALLEGED
OBSCENITY OF THE FILM. 

THE ILLINOIS SUPREME COURT HELD "THAT THE ADMINISTRATION OF THE
CHICAGO MOTION PICTURE ORDINANCE VIOLATES NO CONSTITUTIONAL RIGHTS OF
THE DEFENDANTS."  38 ILL.2D, AT 63, 230 N.E.2D, AT 247.  WE DISAGREE. 
IN FREEDMAN V. MARYLAND, 380 U.S. 51, 58-59, WE HELD "  . . . THAT A
NONCRIMINAL PROCESS WHICH REQUIRES THE PRIOR SUBMISSION OF A FILM TO A
CENSOR AVOIDS CONSTITUTIONAL INFIRMITY ONLY IF IT TAKES PLACE UNDER
PROCEDURAL SAFEGUARDS DESIGNED TO OBVIATE THE DANGERS OF A CENSORSHIP
SYSTEM.  . . . TO THIS END, THE EXHIBITOR MUST BE ASSURED, BY STATUTE
OR AUTHORITIATIVE JUDICIAL CONSTRUCTION, THAT THE CENSOR WILL, WITHIN A
SPECIFIED BRIEF PERIOD, EITHER ISSUE A LICENSE OR GO TO COURT TO
RESTRAIN SHOWING THE FILM.  . . . (THE PROCEDURE MUST ALSO ASSURE A
PROMPT FINAL JUDICIAL DECISION, TO MINIMIZE THE DETERRENT EFFECT OF AN
INTERIM AND POSSIBLY ERRONEOUS DENIAL OF A LICENSE."  THE CHICAGO
CENSORSHIP PROCEDURES VIOLATE THESE STANDARDS IN TWO RESPECTS.  (1) THE
50 TO 57 DAYS PROVIDED BY THE ORDINANCE TO COMPLETE THE ADMINISTRATIVE
PROCESS BEFORE INITIATION OF THE JUDICIAL PROCEEDING DOES NOT SATISFY
THE STANDARD THAT THE PROCEDURE MUST ASSURE "THAT THE CENSOR WILL,
WITHIN A SPECIFIED BRIEF PERIOD, EITHER ISSUE A LICENSE OR GO TO COURT
TO RESTRAIN SHOWING THE FILM."  (2) THE ABSENCE OF ANY PROVISION FOR A
PROMPT JUDICIAL DECISION BY THE TRIAL COURT VIOLATES THE STANDARD THAT
" . . . THE PROCEDURE MUST ALSO ASSURE A PROMPT FINAL JUDICIAL
DECISION.; . . " 

ACCORDINGLY, WE REVERSE THE JUDGMENTS OF THE SUPREME COURT OF
ILLINOIS AND REMAND THE CASE FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION;

 IT IS SO ORDERED. 

/1/  IN LIGHT OF OUR DECISION, WE DO NOT REACH, AND INTIMATE NO VIEW
UPON, THE QUESTION WHETHER THE FILMS ARE OBSCENE. 

/2/  THE ORDINANCE WAS AMENDED DURING THE PENDENCY OF THE CASE
BEFORE THE ILLINOIS SUPREME COURT TO REQUIRE INSPECTION WITHIN THREE
DAYS AFTER SUBMISSION OF THE FILMS.  THE MEMBERS OF THE
SUPERINTENDENT'S FILM REVIEW SECTION, UPON HIS REQUEST, "REVIEW EACH
MOTION PICTURE SUBMITTED AND . . . RECOMMEND IN WRITING TO THE
SUPERINTENDENT OF POLICE WHETHER TO GRANT OR DENY A PERMIT." 

/3/  COMMENTS OF THE TRIAL JUDGE IN THIS CASE SUGGEST DOUBT WHETHER
THE TRIAL COURT REGARDED COMPLIANCE WITH THIS RULE TO BE MANDATORY: 

"MR. ASPEN (COUNSEL FOR THE CITY):  AS FAR AS THE COURT IS
CONCERNED, IT IS MY UNDERSTAND (SIC) THAT JUDGE BOYLE IN GENERAL RULE 3
3, WHICH HAS NOTHING TO DO WITH THE ORDINANCE HAS SAID THERE WILL BE A
HEARING WITHIN FIVE DAYS OF EITHER THE FILING OF AN ANSWER-- 

"THE COURT:  I AM GOING TO HAVE IT CHANGED BECAUSE WE JUST CANNOT SET
EVERYTHING ASIDE TO GIVE PRIORITY TO THIS KIND OF LITIGATION. 

        .          .          .          . 

"THE COURT:  FIRST AMENDMENT MATTERS CANNOT BE ANYMORE IMPORTANT
THAN ANY OTHER CONSTITUTIONAL RIGHT OR ANY OTHER CITIZEN'S RIGHT TO
HAVE HIS CASE HEARD. 

"AS I SAID BEFORE, IT IS FAR MORE IMPORTANT IN MY JUDGMENT TO TAKE
CARE OF THE BROKEN HEADS AND FRACTURED LEGS THAN IT IS TO TAKE CARE OF
THE BLEEDING HEARTS." 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, AGREEING THAT FREEDMAN V.
MARYLAND, 380 U.S. 51, 58-59, REQUIRES REVERSAL OF THIS CASE, BASE
THEIR REVERSAL ALSO ON REDRUP V. NEW YORK, 386 U.S. 767. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE STEWART BASES HIS CONCURRENCE IN THIS JUDGMENT UPON REDRUP
V. NEW YORK, 386 U.S. 767. 

ELMER GERTZ AND LEON N. MILLER FOR APPELLANTS. 

RAYMOND F. SIMON AND MARVIN E. ASPEN FOR APPELLEES. 
..END :









SMITH V. NOBLE DRILLING CORP., 390 U.S. 143 


       SMITH V. NOBLE DRILLING CORP.

        ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

 LOUISIANA. 

        NO. 648.  DECIDED JANUARY 29, 1968. 


CERTIORARI GRANTED; VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA IS GRANTED.  THE JUDGMENT BELOW IS VACATED AND THE CASE IS
REMANDED TO THE SUPREME COURT OF LOUISIANA FOR FURTHER CONSIDERATION IN
LIGHT OF BILLIOT V. SEWART SEACRAFT, INC., 382 F.2D 662 (C.A. 5TH CIR.
1967), AND LOFFLAND BROTHERS CO. V. HUCKABEE, 373 F.2D 528 (C.A. 5TH
CIR. 1967). 

SAMUEL C. GAINSBURGH FOR PETITIONER. 

W. FORD REESE FOR RESPONDENT. 
..END :





GARAFOLO V. UNITED STATES, 390 U.S. 144 


       GARAFOLO V. UNITED STATES. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

           COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

        NO. 866.  DECIDED JANUARY 29, 1968. 


CERTIORARI GRANTED; 385 F.2D 200, VACATED AND REMANDED. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT IS VACATED. 
THE CASE IS REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT
OF SMITH V, ILLINOIS, ANTE, P. 129. 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN ARE OF THE OPINION THAT
CERTIORARI SHOULD BE DENIED. 

FRANCIS HEISLER FOR PETITIONER. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON AND
BEATRICE ROSENBERG FOR THE UNITED STATES. 
..END :



EPTON V. NEW YORK, 390 U.S. 29 


       EPTON V. NEW YORK. 

        ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS

           OF NEW YORK. 

        NO. 502, MISC.  DECIDED JANUARY 22, 1968.  /1/ 


19 N.Y.2D 496, 227 N.E.2D 829, CERTIORARI DENIED IN NO. 502, MISC.;
AND APPEAL DISMISSED IN NO. 771, MISC. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS DENIED IN NO. 502, MISC.
THE MOTION TO DISMISS IS GRANTED IN NO. 771, MISC., AND THE APPEAL IS
DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

/1/  TOGETHER WITH NO. 771, MISC., EPTON V. NEW YORK, ON APPEAL FROM
THE SAME COURT. 

MR. JUSTICE STEWART, CONCURRING IN THE DENIAL OF CERTIORARI AND THE
DISMISSAL OF THE APPEAL. 

I JOIN THE DENIAL OF CERTIORARI IN NO. 502, MISC., AND THE DISMISSAL
OF THE RELATED APPEAL IN NO. 771, MISC., BUT ONLY BECAUSE EPTON HAS
BEEN SENTENCED TO SERVE THREE CONCURRENT ONE-YEAR TERMS:  ONE FOR
CONSPIRING TO RIOT, NEW YORK PENAL LAW (1944 AND 1966 CUM. SUPP.),
SECS. 580, 2090; ONE FOR ADVOCATING CRIMINAL ANARCHY, SECS. 160, 161;
AND ONE FOR CONSPIRING TO ENGAGE IN SUCH ADVOCACY, SECS. 580, 160,
161.  I THINK THE RIOT CONVICTION PRESENTS NO SUBSTANTIAL FEDERAL
QUESTION, /1/  AND SINCE THE THREE SENTENCES WERE ORDERED TO RUN
CONCURRENTLY, I CONCLUDE THAT THESE CASES DO NOT REQUIRE THE COURT TO
CONSIDER EITHER THE CRIMINAL ANARCHY CONVICTION OR THE ASSOCIATED
CONSPIRACY CONVICTION.  SEE HIRABAYASHI V. UNITED STATES, 320 U.S. 81,
85; LANZA V. NEW YORK, 370 U.S. 139.  IF THE CONSTITUTIONALITY OF NEW
YORK'S CRIMINAL ANARCHY LAWS WERE PROPERLY PRESENTED, HOWEVER, I WOULD
VOTE TO GRANT THE PETITION FOR CERTIORARI AND NOTE PROBABLE
JURISDICTION OF THE APPEAL, TO RECONSIDER THE COURT'S DECISION IN
GITLOW V. NEW YORK, 268 U.S. 652, AND TO DECIDE WHETHER THE NEW YORK
ANARCHY STATUTES, EITHER ON THEIR FACE OR AS APPLIED IN THESE CASES,
VIOLATE THE FIRST AND FOURTEENTH AMENDMENTS. 

/1/  IT IS TRUE THAT SOME OF THE ACTS RELIED UPON BY THE STATE TO
ESTABLISH THE EXISTENCE OF A CONSPIRACY TO RIOT CONSISTED OF SPEECHES
MADE BY EPTON.  LIKE MY BROTHER DOUGLAS, I THINK IT IS AT LEAST
ARGUABLE THAT A STATE CANNOT CONVICT A MAN OF CRIMINAL CONSPIRACY
WITHOUT FIRST DEMONSTRATING SOME CONSTITUTIONALLY UNPROTECTED OVERT ACT
IN FURTHERANCE OF THE ALLEGED UNLAWFUL AGREEMENT.  BUT THE STATE IN
THESE CASES PRESENTED PROOF THAT EPTON HAD ACTIVELY PARTICIPATED IN THE
FORMATION OF A GROUP DEDICATED TO ARMED REVOLT AGAINST THE POLICE UNDER
THE DIRECTION OF "BLOCK CAPTAINS" AND WITH THE ASSISTANCE OF "TERRORIST
BANDS," EQUIPPED WITH MOLOTOV COCKTAILS THAT EPTON HIMSELF HAD
EXPLAINED HOW TO USE.  IN THE CONTEXT OF THIS RECORD, ACTIVITIES SUCH
AS THESE CAN MAKE NO SERIOUS CLAIM TO CONSTITUTIONAL PROTECTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD HEAR ARGUMENT IN THESE CASES, SINCE I AM OF THE OPINION THAT
ALL QUESTIONS PRESENTED, INCLUDING THOSE UNDER THE FIRST COUNT OF THE
INDICTMENT FOR CONSPIRING TO RIOT, PRESENT SUBSTANTIAL FEDERAL
QUESTIONS. 

IN THE FIRST COUNT, THE STATE ALLEGED THE COMMISSION OF 15 OVERT
ACTS BY EPTON IN FURTHERANCE OF THE ALLEGED CONSPIRACY TO RIOT.  THE
ALLEGED ACTS CONSISTED IN PART OF SPEECHES MADE BY EPTON AND HIS
PARTICIPATION IN THE PREPARATION AND DISTRIBUTION OF CERTAIN LEAFLETS. 
SUCH ACTIVITIES, OF COURSE, ARE NORMALLY GIVEN THE PROTECTION OF THE
FIRST AMENDMENT WITH EXCEPTIONS NOT NOW NECESSARY TO STATE.  SEE YATES
V. UNITED STATES, 354 U.S. 298; DENNIS V. UNITED STATES, 341 U.S. 494;
TERMINIELLO V. CHICAGO, 337 U.S. 1; THOMAS V. COLLINS, 323 U.S. 516;
BRIDGES V. CALIFORNIA, 314 U.S. 252; GITLOW V. NEW YORK, 268 U.S. 652,
672 (DISSENTING OPINION); ABRAMS V. UNITED STATES, 250 U.S. 616, 624
(DISSENTING OPINION); SCHENCK V. UNITED STATES, 249 U.S. 47; CHAPLINSKY
V. NEW HAMPSHIRE, 315 U.S. 568; FEINER V. NEW YORK, 340 U.S. 315, 329
(DISSENTING OPINION). 

UNDER NEW YORK LAW, A CONVICTION FOR CONSPIRACY REQUIRES BOTH AN
AGREEMENT TO COMMIT AN UNLAWFUL ACT AND AT LEAST ONE OVERT ACT IN
FURTHERANCE OF THAT AGREEMENT.  /1/  WHETHER THE OVERT ACT REQUIRED TO
CONVICT A DEFENDANT FOR CONSPIRACY MUST BE SHOWN TO BE CONSTITUTIONALLY
UNPROTECTED PRESENTS AN IMPORTANT QUESTION.  AN ARGUMENT CAN OF COURSE
BE MADE THAT OVERT ACTS ARE USED ONLY TO DEMONSTRATE THE EXISTENCE OF A
CONSPIRACY, AND TO DRAW REASONABLE INFERENCES AS TO THE INTENT OF THE
ALLEGED CONSPIRATOR. 

ALTHOUGH THE COURT HAS INDICATED THAT THE OVERT ACT REQUIREMENT OF
THE TREASON CLAUSE ENSURES THAT "THOUGHTS AND ATTITUDES ALONE CANNOT
MAKE A TREASON" (CRAMER V. UNITED STATES, 325 U.S. 1, 29), IT HAS NEVER
DECIDED WHETHER ACTIVITIES PROTECTED BY THE FIRST AMENDMENT CAN
CONSTITUTE OVERT ACTS FOR PURPOSES OF A CONVICTION FOR TREASON.  THE
MATTER WAS ADVERTED TO IN CRAMER V. UNITED STATES: 

     "THUS THE CRIME OF TREASON CONSISTS OF TWO ELEMENTS:
ADHERENCE

  TO THE ENEMY; AND RENDERING HIM AID AND COMFORT.  A CITIZEN

INTELLECTUALLY OR EMOTIONALLY MAY FAVOR THE ENEMY AND HARBOR

  SYMPATHIES OR CONVICTIONS DISLOYAL TO THIS COUNTRY'S POLICY OR

  INTEREST, BUT SO LONG AS HE COMMITS NO ACT OF AID AND COMFORT TO

  THE ENEMY, THERE IS NO TREASON.  ON THE OTHER HAND, A CITIZEN MAY

  TAKE ACTIONS WHICH DO AID AND COMFORT THE ENEMY-- MAKING A SPEECH

  CRITICAL OF THE GOVERNMENT OR OPPOSING ITS MEASURES,

  PROFITEERING, STRIKING IN DEFENSE PLANTS OR ESSENTIAL WORK, AND

  THE HUNDRED OTHER THINGS WHICH IMPAIR OUR COHESION AND DIMINISH

  OUR STRENGTH-- BUT IF THERE IS NO ADHERENCE TO THE ENEMY IN THIS,

IF THERE IS NO INTENT TO BETRAY, THERE IS NO TREASON."  ID., AT

  29. 

IN THE SAME CASE, THE FOUR DISSENTERS NOTED THAT: 

"IT IS PLAIN . . . THAT THE REQUIEMENT OF AN OVERT ACT IS DESIGNED
TO PRECLUDE PUNISHMENT FOR TREASONABLE PLANS OR SCHEMES OR HOPES WHICH
HAVE NEVER MOVED OUT OF THE REALM OF THOUGHT OR SPEECH."  ID., AT 61. 

THE LOWER FEDERAL COURTS HAVE CONSIDERED THE QUESTION IN A FEW
CASES, THE MOST EXHAUSTIVE TREATMENT PROBABLY BEING FOUND IN CHANDLER
V. UNITED STATES, 171 F.2D 921 (CA. 1ST CIR. 1948).  TREASON, OF
COURSE, IS NOT THE CHARGE HERE.  YET THE USE OF CONSTITUTIONALLY
PROTECTED ACTIVITIES TO PROVIDE THE OVERT ACTS FOR CONSPIRACY
CONVICTIONS MIGHT WELL STIFLE DISSENT AND COOL THE FERVOR OF THOSE WITH
WHOM SOCIETY DOES NOT AGREE AT THE MOMENT.  SOCIETY, LIKE AN ILL
PERSON, OFTEN PRETENDS IT IS WELL OR TRIES TO HIDE ITS SICKNESS.  FROM
THIS PERSPECTIVE, FIRST AMENDMENT FREEDOMS SAFEGUARD SOCIETY FROM ITS
OWN FOLLY.  AS LONG AS THE EXERCISE OF THOSE FREEDOMS IS WITHIN THE
PROTECTION OF THE FIRST AMENDMENT, THE QUESTION IS PRESENTED WHETHER
THIS COURT SHOULD PERMIT CRIMINAL CONVICTIONS FOR CONSPIRACY TO STAND,
WHEN THEY TURN ON THAT EXERCISE. 

THE ISSUE, THEN- IS WHETHER EPTON'S SPEECHES AND HIS PARTICIPATION
IN THE PREPARATION AND DISTRIBUTION OF LEAFLETS CAN BE USED AS OVERT
ACTS IN A CONSPIRACY CHARGE, WITHOUT A REQUIREMENT THAT THEY MUST FIRST
BE FOUND CONSTITUTIONALLY UNPROTECTED. 

YATES V. UNITED STATES, 354 U.S. 298, CAN BE CONSTRUED TO PERMIT
CONSTITUTIONALLY PROTECTED ACTIVITIES TO BE USED AS OVERT ACTS IN
CRIMINAL CONSPIRACIES.  BUT THERE WAS A SEPARATE OPINION IN THAT CASE,
WRITTEN BY MY BROTHER BLACK, WHICH I JOINED, SAYING IN PART: 

"THE ONLY OVERT ACT WHICH IS NOW CHARGED AGAINST THESE DEFENDANTS IS
THAT THEY WENT TO A CONSTITUTIONALLY PROTECTED PUBLIC ASSEMBLY WHERE
THEY TOOK PART IN LAWFUL DISCUSSION OF PUBLIC QUESTIONS, AND WHERE
NEITHER THEY NOR ANYONE ELSE ADVOCATED OR SUGGESTED OVERTHROW OF THE
UNITED STATES GOVERNMENT."  ID., AT 343. 

THE MAJORITY IN THE YATES CASE, HOWEVER, WENT TO SOME LENGTHS IN
PROTECTING FIRST AMENDMENT FREEDOMS.  THERE ADVOCACY WAS THE HEART OF
THE CASE, AND THE MAJORITY HELD THAT "ADVOCACY" TO BE AN INGREDIENT OF
A CRIME "MUST BE OF ACTION AND NOT MERELY ABSTRACT DOCTRINE," ID., AT
325.  THE COURT REVERSED THE CONVICTIONS BECAUSE THE INSTRUCTIONS TO
THE JURY DID NOT PROPERLY DELINEATE THAT LINE OF DISTINCTION.  WHILE
THE MAJORITY HELD THAT ATTENDING A MEETING COULD BE AN OVERT ACT, ID.,
AT 334, IT WENT ON THE HOLD THAT THE LINE BETWEEN CONSTITUTIONALLY
PROTECTED FIRST AMENDMENT RIGHTS AND THOSE THAT EXCEEDED THE LIMITS
MUST BE CAREFULLY DRAWN IN INSTRUCTIONS TO THE JURY.  IN THE PRESENT
CASES, HOWEVER, THE TRIAL COURT IN ITS CHARGE TO THE JURY MADE NO
QUALIFICATIONS WHATSOEVER AS TO THE PERMISSIBLE RANGE OF THE USE OF
SPEECH AND PUBLICATIONS AS OVERT ACTS.  THERE WAS NO INSTRUCTION
WHATSOEVER THAT THE JURY WOULD FIRST HAVE TO DETERMINE THAT THE
PARTICULAR SPEECH OR THE PARTICULAR PUBLICATION WAS NOT
CONSTITUTIONALLY PROTECTED.  THE PRINCIPLE OF YATES WAS THEREFORE
DISREGARDED.  /2/ 

SINCE IN MY OPINION, NONE OF EPTON'S CONVICTIONS IS FREE OF DOUBT
THERE IS NO BASIS FOR APPLYING THE RULE THAT THERE IS NO OCCASION TO
REVIEW A CONVICTION ON ONE COUNT OF AN INDICTMENT IF THE JUDGMENT ON
ANOTHER COUNT IS VALID AND THE SENTENCES ARE CONCURRENT.  SEE LANZA V.
NEW YORK, 370 U.S. 139, 146, 152 (SEPARATE OPINION OF MR. JUSTICE
BRENNAN); HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 85; WHITFIELD V.
OHIO, 297 U.S. 431, 438.  LIKE MY BROTHER STEWART, I BELIEVE THAT
EPTON'S CONVICTIONS FOR ADVOCATING CRIMINAL ANARCHY AND CONSPIRACY TO
ADVOCATE CRIMINAL ANARCHY SHOULD BE REVIEWED BY THIS COURT TO CONSIDER
WHETHER NEW YORK'S ANARCHY STATUTES EITHER ON THEIR FACE OR AS APPLIED
HERE PASS BEYOND THE PALE OF CONSTITUTIONALITY.  SEE KEYISHIAN V. BOARD
OF REGENTS, 385 U.S. 589; GITLOW V. NEW YORK, 268 U.S. 652. 
ACCORDINGLY, I WOULD GRANT CERTIORARI IN NO. 502, MISC., NOTE PROBABLE
JURISDICTION IN NO. 771, MISC., AND SET THE CASES FOR ORAL ARGUMENT. 

/1/  N.Y. PEN.  LAW SECS. 105.00-105.20 (1967).  AT THE TIME OF
EPTON'S TRIAL, THE NEW YORK LAW WAS ESSENTIALLY THE SAME.  N.Y. PEN. 
LAW SECS. 580, 583 (1966 CUM. SUPP.). 

/2/  MY BROTHER STEWART AGREES THAT "IT IS AT LEAST ARGUABLE THAT A
STATE CANNOT CONVICT A MAN OF CRIMINAL CONSPIRACY WITHOUT FIRST
DEMONSTRATING SOME CONSTITUTIONALLY UNPROTECTED OVERT ACT IN
FURTHERANCE OF THE ALLEGED UNLAWFUL AGREEMENT."  BUT HE DISMISSES THAT
CONTENTION IN THIS CASE BECAUSE, IN HIS VIEW, THE RECORD DEMONSTRATES
THAT AT LEAST SOME OF EPTON'S ACTIVITIES WERE NOT CONSTITUTIONALLY
PROTECTED.  PERHAPS MY BROTHER STEWART MEANS THAT ALTHOUGH SOME OVERT
ACTS CHARGED WERE CONSTITUTIONALLY PROTECTED, OTHERS WERE NOT.  THE
LATTER IS DOUBTLESS TRUE.  BUT THE CHARGE TO THE JURY DREW NO SUCH
DISCRIMINATING LINE; AND SO FAR AS WE KNOW THE CONVICTION MAY HAVE
RESTED IN WHILE OR IN PART ON OVERT ACTS WHICH HAD FIRST AMENDMENT
PROTECTION.  BECAUSE THE JURY RENDERED A GENERAL VERDICT ON COUNT ONE,
IT IS IMPOSSIBLE FOR THIS COURT TO DETERMINE WHETHER A PROTECTED
ACTIVITY WAS EMPLOYED TO CONVICT EPTON OF CONSPIRACY TO RIOT.  IN SUCH
CIRCUMSTANCES, OUR PRECEDENTS INDICATE THAT THE PROPER PROCEDURE WOULD
BE TO SET ASIDE THE CONVICTION IF ANY OF THE ACTS SUBMITTED WERE
CONSTITUTIONALLY PROTECTED.  SEE HAUPT V. UNITED STATES, 330 U.S. 631,
641, N. 1.  CF. YATES V. UNITED STATES, 354 U.S. 298, 311-312; CRAMER
V. UNITED STATES, 325 U.S. 1, 36, N. 45; STROMBERG V. CALIFORNIA, 283
U.S. 359, 367-368.  MOREOVER, THE APPROACH TAKEN BY MY BROTHER STEWART
HEARKENS BACK TO THE VIEW OF THE COURT IN DENNIS V. UNITED STATES, 341
U.S. 494, 512-513, THAT THE QUESTION OF "CLEAR AND PRESENT DANGER" IS
ONE OF LAW.  THE COURT RULED THAT AS LONG AS THE JURY HAD FOUND THE
FACTS ESSENTIAL TO ESTABLISH THE SUBSTANTIVE CRIME, THE PROTECTION OF
THE FIRST AMENDMENT AGAINST CONVICTION ON THOSE FACTS WAS A MATTER OF
LAW FOR THE COURTS TO DETERMINE.  I DISSENTED IN THAT CASE, IN PART ON
THE GROUND THAT OUR PRECEDENTS HAD ESTABLISHED THAT THE "QUESTION OF
THE CLEAR AND PRESENT DANGER, BEING SO CRITICAL AN ISSUE IN THE CASE,
WOULD BE A MATTER FOR SUBMISSION TO THE JURY."  ID., AT 587.  AND, AS
ALREADY NOTED, THE COURT IN YATES V. UNITED STATES SHOWED GREATER
SOLICITUDE TOWARD THE ROLE OF THE JURY IN THIS SENSITIVE FIRST
AMENDMENT AREA THAN THE COURT IN DENNIS OR THIS COURT TODAY.  TO BE
CONSISTENT WITH THE APPROACH TAKEN IN YATES, THE JURY SHOULD BE
INSTRUCTED ON ALL POINTS OF LAW THAT MAKE THE DIFFERENCE BETWEEN
CONVICTION AND ACQUITTAL. 

ELEANOR JACKSON PIEL FOR PETITIONER IN NO. 502, MISC., AND FOR
APPELLANT IN NO. 771, MISC. 

FRANK S. HOGAN, H. RICHARD UVILLER AND MICHAEL JUVILER FOR
RESPONDENT IN NO. 502, MISC., AND FOR APPELLEE IN NO. 771, MISC.
..END :














PAULAITIS V. PAULAITIS, 390 U.S. 36 


       PAULAITIS V. PAULAITIS. 

        APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

        NO. 815.  DECIDED JANUARY 22, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














KNIGHT V. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW
YORK, 390 U.S. 36 



       KNIGHT ET AL. V. BOARD OF REGENTS OF THE UNIVERSITY OF THE

           STATE OF NEW YORK ET AL.

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

  SOUTHERN DISTRICT OF NEW YORK. 

        NO. 826.  DECIDED JANUARY 22, 1968. 


269 F.SUPP.  339, AFFIRMED. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE STEWART IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

ALAN H. LEVINE AND JEREMIAH S. GUTMAN FOR APPELLANTS. 

LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, SAMUEL A.
HIRSHOWITZ, FIRST ASSISTANT ATTORNEY GENERAL AND CHARLES A. LA TORELLA,
JR., AND MARIA L. MARCUS, ASSISTANT ATTORNEYS GENERAL, FOR APPELLEES. 
..END :






















BOGART V. STATE BAR OF CALIFORNIA, 390 U.S. 37 


       BOGART V. STATE BAR OF CALIFORNIA ET AL.

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

        NO. 806, MISC.  DECIDED JANUARY 22, 1968. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

PETER D. BOGART, APPELLANT, PRO SE. 

HOMER I. MITCHELL AND F. LAMAR FORSHEE FOR APPELLEES. 
..END :










WETTER V. CITY OF INDIANAPOLIS, 390 U.S. 37 


       WETTER ET AL. V. CITY OF INDIANAPOLIS ET AL.

    APPEAL FROM THE SUPREME COURT OF INDIANA. 

NO. 895.  DECIDED JANUARY 22, 1968. 


-- IND.-- , 226 N.E.2D 886, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

EDWARD H. KNIGHT AND RICHARD M. GIVAN FOR APPELLANTS. 

HARRY T. ICE FOR APPELLEES. 
..END :










CREPEAULT V. VERMONT, 390 U.S. 38 


       CREPEAULT V. VERMONT. 

        APPEAL FROM THE SUPREME COURT OF VERMONT. 

        NO. 778, MISC.  DECIDED JANUARY 22, 1968. 


-- VT.-- , 229 A.2D 245, APPEAL DISMISSED AND CERTIORARI DENIED. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














CROSS V. UNITES STATES BOARD OF PAROLE, 390 U.S. 38 


       CROSS V. UNITED STATES BOARD OF PAROLE ET AL.

     APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

           DISTRICT OF CONNECTICUT. 

        NO. 842, MISC.  DECIDED JANUARY 22, 1968. 


APPEAL DISMISSED. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON AND
BEATRICE ROSENBERG FOR APPELLEES. 
..END :










HARDIN V. KENTUCKY UTILITIES CO., 390 U.S. 1 


       HARDIN, MAYOR OF TAZEWELL, ET AL. V. KENTUCKY UTILITIES CO.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

           SIXTH CIRCUIT. 

        NO. 40.  ARGUED DECEMBER 13, 1967.-- DECIDED JANUARY 16,

     1968.  /1A/ 


RESPONDENT, A PRIVATE UTILITY COMPANY, SUED TO ENJOIN THE TENNESSEE
VALEY AUTHORITY (TVA) FROM SUPPLYING TVA POWER IN ALLEGED VIOLATION OF
SEC. 15D OF THE TVA ACT FOR USE IN TWO SMALL TENNESSEE TOWNS WHERE, AS
OF JULY 1, 1957, RESPONDENT HAD SUPPLIED 94% OF THE ELECTRIC POWER AND
TVA 6%.  AT THAT TIME TVA SUPPLIED 62% OF THE POWER USED IN ALL
CLAIBORNE COUNTY.  IT SUPPLIED MOST OF THE COUNTY'S RURAL AREAS, AND ON
A RELATIVELY UNPROFITABLE BASIS.  RESPONDENT'S RETAIL RATES IN THE TWO
TOWNS WERE ABOUT 2 1/2 TIMES THOSE OF TVA.  SECTION 15D OF THE ACT BARS
TVA FROM EXPANDING SALES OUTSIDE "THE AREA FOR WHICH (IT) OR ITS
DISTRIBUTORS WERE THE PRIMARY SOURCE OF POWER ON JULY 1, 1957."  THE
DISTRICT COURT UPHELD THE DETERMINATION OF THE TVA BOARD OF DIRECTORS
THAT CLAIBORNE COUNTY AS A WHOLE CONSTITUTED TVA'S PRIMARY SERVICE
"AREA" AND DISMISSED THE ACTION.  THE COURT OF APPEALS REVERSED,
HOLDING THT THE TOWNS AND A NARROW CORRIDOR BETWEEN THEM AND
RESPONDENT'S MAIN SERVICE AREA IN NEARBY KENTUCKY CONSTITUTED THE
"AREA."  BOTH COURTS RULED AGAINST PETITIONERS' CONTENTION THAT THE
RESPONDENT LACKED STANDING TO SUE.  HELD: 

1.  RESPONDENT, BEING WITHIN THE CLASS OF PRIVATE UTILITIES WHICH
SEC. 15D IS DESIGNED TO PROTECT FROM TVA COMPETITION, HAS STANDING TO
MAINTAIN THIS SUIT.  PP. 5-7. 

2.  TVA'S DETERMINATION THAT CLAIBORNE COUNTY CONSTITUTED THE
PRIMARY SERVICE "AREA" WITHIN THE MEANING OF SEC. 15D SHOULD BE UPHELD
SINCE IT WAS WITHIN THE RANGE OF PERMISSIBLE CHOICES CONTEMPLATED BY
THE ACT AND HAD REASONABLE ECONOMIC AND TECHNICAL SUPPORT IN RELATION
TO THE STATUTORY PURPOSE OF CONTROLLING BUT NOT ALTOGETHER PROHIBITING
TVA'S TERRITORIAL EXPANSION.  PP. 8-13. 

375 F.2D 403, REVERSED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IN THESE CASES IN WHETHER CONGRESS HAS
PROHIBITED THE TENNESSEE VALLEY AUTHORITY FROM COMPETING IN THE SALE OF
ELECTRICITY WITH RESPONDENT, THE KENTUCKY UTILITIES COMPANY, IN TWO
SMALL VILLAGES IN CLAIBORNE COUNTY, TENNESSEE, AND IN A NARROW CORRIDOR
BETWEEN THE TWO VILLAGES AND THE TENNESSEE-KENTUCKY STATE BOUNDARY 16
MILES AWAY.  BY SEC. 15D OF THE TENNESSEE VALLEY AUTHORITY ACT OF 1933,
AS ADDED BY THE 1959 AMENDMENTS TO THAT ACT, CONGRESS BARRED THE TVA
FROM EXPANDING ITS SALES OUTSIDE "THE AREA FOR WHICH THE CORPORATION
(TVA) OR ITS DISTRIBUTORS WERE THE PRIMARY SOURCE OF POWER SUPPLY ON
JULY 1, 1957,"  /1/  AND OUR PROBLEM IS THEREFORE THE NARROW ONE OF
DECIDING WHETHER THESE VILLAGES AND THE NARROW CORRIDOR ARE PART OF AN
"AREA" FOR WHICH TVA WAS THE PRIMARY SOURCE OF POWER ON THE CRUCIAL
DATE.  THE DIFFICULTY LIES IN DETERMINING THE LOCATION AND EXTENT OF
THE "AREA" TO WHICH THE STATUTE REFERS.  IN JUNE 1957 TVA SUPPLIED 62%
OF THE POWER USED IN ALL OF CLAIBORNE COUNTY, AND THEREFORE IF THE
ENTIRE COUNTY IS AN "AREA" WITHIN THE MEANING OF THE STATUTE, TVA WOULD
HAVE BEEN THE "PRIMARY" SOURCE OF POWER, AND ITS EXPANSION INTO THE TWO
VILLAGES WOULD BE PERMISSIBLE.  ON THE OTHER HAND, IN THE VILLAGES
THEMSELVES, TVA SUPPLIED ONLY 6% OF THE POWER IN JUNE 1957, WHILE
RESPONDENT SUPPLIED 94%; THUS IF THE TWO VILLAGES EITHER ALONE OR WITH
THE CORRIDOR CONSTITUTE AN "AREA," TVA WOULD NOT HAVE BEEN THE PRIMARY
SOURCE OF POWER, AND IT WOULD BE BARRED BY SEC. 15D FROM EXPANDING INTO
THAT AREA. 

THE QUESTION OF STATUTORY INTERPRETATION NOW BEFORE US AROSE IN THIS
WAY.  TVA IS THE MAJOR SUPPLIER OF ELECTRIC POWER IN TENNESSEE AND IN
MANY ADJOINING AREAS OF ALABAMA, MISSISSIPPI, GEORGIA, VIRGINIA, AND
KENTUCKY.  RESPONDENT, WHOSE SERVICE AREA IS CENTERED IN KENTUCKY, HAS
LONG SERVED CUSTOMERS IN TAZEWELL AND NEW TAZEWELL, THE TWO VILLAGES
WITHIN 16 MILES OF THE KENTUCKY BORDER IN CLAIBORNE COUNTY, TENNESSEE. 
THE POWER LINES OF TVA DISTRIBUTORS ALSO CRISSCROSS CLAIBORNE COUNTY,
AND TVA HAS THEREFORE BEEN ABLE TO SERVE A SMALL NUMBER OF CUSTOMERS IN
THE TWO VILLAGES, EVEN THOUGH RESPONDENT WAS THE PREDOMINANT SOURCE OF
POWER.  BECAUSE KENTUCKY UTILITIES' RETAIL RATES FOR ELECTRICITY IN THE
TWO VILLAGES WERE APPROXIMATELY 2 1/2 TIMES HIGHER FOR TYPICAL
CONSUMERS THAN THE RATES FOR TVA POWER, /2/  THE VALUE OF RESIDENTIAL
AND COMMERCIAL PROPERTIES SERVED BY TVA WAS SUBSTANTIALLY AND UNIFORMLY
HIGHER THAN THE VALUE OF SIMILAR PROPERTIES SERVED BY RESPONDENT.  THIS
RATE DISPARITY CREATED A SEETHING DISCONTENT AMONG RESIDENTIAL AND
INDUSTRIAL CONSUMERS IN THE VILLAGES.  POINTING OUT THAT THEY LIVED IN
THE VERY HEART OF THE TVA WATERSHED AND IN IMMEDIATE PROXIMITY TO TVA'S
LARGE NORRIS LAKE, THESE CITIZENS CONTENDED THAT IT WAS WHOLLY UNJUST
AND INEQUITABLE TO DENY THEM THE BENEFITS AND ADVANTAGES OF CHEAP TVA
POWER.  AFTER COMPLAINTS, PLANNING, AND CONSULTATIONS OVER A PERIOD OF
MORE THAN THREE YEARS, THE LOCAL GOVERNMENTS ENGAGED A CONTRACTOR TO
BUILD THE FACILITIES NECESSARY TO ESTABLISH A MUNICIPAL SYSTEM LINKED
TO TVA'S CHEAP POWER.  KENTUCKY UTILITIES' CUSTOMERS IMMEDIATELY BEGAN
TO DISCONTINUE THEIR SERVICE AND BECOME CUSTOMERS OF THE MUNICIPAL
SYSTEM. 

KENTUCKY UTILITIES THEN FILED THIS SUIT AGAINST TVA, THE MAYORS OF
THE TWO TAZEWELLS, AND THE POWELL VALLEY ELECTRIC COOPERATIVE, A
TVADISTRIBUTOR, CHARGING THEM WITH CONSPIRACY TO DESTROY ITS TAZEWELL
BUSINESS AND ASKING THE COURT TO ENJOIN TVA FROM SUPPLYING POWER TO THE
NEW MUNICIPAL SYSTEM IN ALLEGED VIOLATION OF SEC. 15D.  THE DISTRICT
COURT UPHELD THE DETERMINATION OF THE TVA BOARD OF DIRECTORS THAT THE
TWO TAZEWELLS WERE WITHIN TVA'S PRIMARY SERVICE "AREA" AND DISMISSED
THE CASE, 237 F.SUPP.  502 (1964), BUT THE COURT OF APPEALS REVERSED,
HOLDING THAT THE TWO VILLAGES PLUS THE CORRIDOR CONSTITUTED AN "AREA"
AND THAT TVA ACCORDINGLY WAS BARRED FROM EXTENDING ITS SERVICE IN THE
TAZEWELLS.  375 F.2D 403 (1966).  WE GRANTED CERTIORARI, 386 U.S. 980
(1967), TO RESOLVE THIS IMPORTANT QUESTION IN THE ADMINISTRATION OF THE
TVA ACT.  WE REVERSE AND AGREE WITH THE DISTRICT COURT THAT THE TVA
BOARD PROPERLY DETERMINED THE RELEVANT SERVICE "AREA" TO EXTEND BEYOND
THE TWO TAZEWELLS AND TO INCLUDE THE ENTIRE COUNTY.  TVA, AS THE
PRIMARY POWER SOURCE WITHIN THIS AREA, COULD THEREFORE PROPERLY MAKE
ITS LOW-COST POWER AVAILABLE TO CONSUMERS IN THIS ENTIRE COUNTY AREA
INCLUDING THE TWO VILLAGES. 

        I. 

BEFORE DISCUSSING THE MERITS, WE SHALL BRIEFLY CONSIDER PETITIONERS'
CONTENTION THAT THEKENTUCKY UTILITIES COMPANY LACKS STANDING TO
CHALLENGE THE LEGALITY OF TVA'S ACTIVITIES.  WE AGREE WITH BOTH THE
COURTS BELOW THAT THIS CONTENTION IS WITHOUT MERIT.  THIS COURT HAS, IT
IS TRUE, REPEATEDLY HELD THAT THE ECONOMIC INJURY WHICH RESULTS FROM
LAWFUL COMPETITION CANNOT, IN AND OF ITSELF, CONFER STANDING ON THE
INJURED BUSINESS TO QUESTION THE LEGALITY OF ANY ASPECT OF ITS
COMPETITOR'S OPERATIONS.  RAILROAD CO. V. ELLERMAN, 105 U.S. 166
(1882); ALABAMA POWER CO. V. ICKES, 302 U.S. 464 (1938); TENNESSEE
POWER CO. V. TVA, 306 U.S. 118 (1939); PERKINS V. LUKENS STEEL CO., 310
U.S. 113 (1940).  BUT COMPETITIVE INJURY PROVIDED NO BASIS FOR STANDING
IN THE ABOVE CASES SIMPLY BECAUSE THE STATUTORY AND CONSTITUTIONAL
REQUIREMENTS THAT THE PLAINTIFF SOUGHT TO ENFORCE WERE IN NO WAY
CONCERNED WITH PROTECTING AGAINST COMPETITIVE INJURY.  IN CONTRAST, IT
HAS BEEN THE RULE, AT LEAST SINCE THE CHICAGO JUNCTION CASE, 264 U.S.
258 (1924), THAT WHEN THE PARTICULAR STATUTORY PROVISION INVOKED DOES
REFLECT A LEGISLATIVE PURPOSE TO PROTECT A COMPETITIVE INTEREST, THE
INJURED COMPETITOR HAS STANDING TO REQUIRE COMPLIANCE WITH THAT
PROVISION.  SEE ALTON R. CO. V. UNITED STATES, 315 U.S. 15, 19 (1942);
CHICAGO V. ATCHISON, T. & S.F.R. CO., 357 U.S. 77, 83 (1958). 

PETITIONERS CONCEDE, AS OF COURSE THEY MUST, THAT ONE OF THE PRIMARY
PURPOSES OF THE AREA LIMITATIONS IN SEC. 15D OF THE ACT WAS TO PROTECT
PRIVATE UTILITIES FROM TVA COMPETITION.  THIS IS EVIDENT FROM THE
PROVISION ITSELF AND IS AMPLY SUPPORTED BY ITS LEGISLATIVE HISTORY. 
THE PROVISION GREW OUT OF TVA'S EFFORTS TO FIND SOME WAY TO MEET THE
COST OF NEW FACILITIES WITHOUT DPENDENCE UPON ANNUAL APPROPRIATIONS
FROM CONGRESS.  IN 1955 TVA BEGAN TO SEEK AUTHORITY TO ISSUE BONDS TO
FINANCE THESE EXPENDITURES.  ALTHOUGH TVA SPOKESMEN ASSURED CONGRESS
THAT THE OBJECTIVE WAS NOT TERRITORIAL EXPANSION BUT ONLY IMPORVEMENT
OF FACILITIES IN TVA'S EXISTING SERVICE AREA, MANY MEMBERS OF CONGRESS
WERE APPREHENSIVE AND THOUGHT THAT IF CONGRESSIONAL BUDGETARY CONTROL
WAS TO BE WEAKENED, SOME SUBSTITUTE TO PREVENT TERRITORIAL EXPANSION
SHOULD BE FOUND.  A SERIES OF BILLS TO GIVE TVA BORROWING POWER FAILED
TO PASS.  /3/  SEVERAL BILLS WERE THEN INTRODUCED COMBINING THE GRANT
OF BORROWING POWER WITH VARIOUS PROVISIONS TO PROHIBIT TERRITORIAL
EXPANSION, /4/  AND ONE OF THESE BILLS WERE EVENTUALLY ENACTED AS THE
TVA AMENDMENTS OF 1959.  ALTHOUGH DISCUSSIONS OF THE TERRITORIAL
LIMITATION MENTIONED A NUMBER OF POLICY REASONS FOR THE RESTRICTION,
/5/  IT IS CLEAR AND UNDISPUTED THAT PROTECTION OF PRIVATE UTILITIES
FROM TVA COMPETITION WAS ALMOST UNIVERSALLY REGARDED AS THE PRIMARY
OBJECTIVE OF THE LIMITATION.  /6/ SINCE RESPONDENT IS THUS IN THE CLASS
WHICH SEC. 15D IS DESIGNED TO PROTECT, IT HAS STANDING UNDER FAMILIAR
JUDICIAL PRINCIPLES TO BRING THIS SUIT, SEE STARK V. WICKARD, 321 U.S.
288, 309 (1944); CF. UNITED STATES V. ICC, 337 U.S. 426, 433-434
(1949), AND NO EXPLICIT STATUTORY PROVISION IS NECESSARY TO CONFER
STANDING.  /7/

        II. 

BASIC TO OUR CONSIDERATION OF THE MERITS OF THESE CASES IS AN
APPRAISAL OF THE SIGNIFICANCE OF THE TVA BOARD'S DETERMINATION THAT ALL
OF CLAIBORNE COUNTY, INCLUDING THE TWO TAZEWELLS, CONSTITUTED A SINGLE
"AREA" IN WHICH TVA IS THE PRIMARY SOURCE OF POWER.  PETITIONERS ARGUE
THAT THE COURT OF APPEALS GAVE NO WEIGHT WHATEVER TO THIS DETERMINATION
AND URGE THAT THE FINDING SHOULD INSTEAD HAVE BEEN TREATED LIKE AN
ADMINISTRATIVE INTERPRETATION BY AN AGENCY OR EXECUTIVE OFFICER, TO BE
SET ASIDE ONLY IF IT IS NOT PROPERLY RELATED TO THE PURPOSES OF THE
STATUTE.  THE OPINION OF THE COURT OF APPEALS IS NOT ALTOGETHER CLEAR
IN DEALING WITH THIS QUESTION, HOWEVER, /8/  AND RESPONDENT HAS NOT
ATTEMPTED TO ARGUE HERE THAT THE COURT OF APPEALS COULD HAVE DECIDED
THE MATTER ENTIRELY ON ITS OWN, WITHOUT ANY CONSIDERATION OF THE TVA
BOARD'S FINDING.  RATHER, RESPONDENT APPEARS TO AGREE WITH PETITIONERS
THAT THE DETERMINATION OF THE TVA BOARD IS ENTITLED TO ACCEPTANCE
UNLESS IT LIES OUTSIDE THE RANGE OF PERMISSIBLE CHOICES CONTEMPLATED BY
THE STATUTE, AND WE THINK THIS IS THE PROPER RULE.  THE INITIAL
DETERMINATION AS TO THE EXTENT OF THE "AREA" UNDER SEC. 15D MUST BE
MADE BY THE TVA BOARD IN EVERY CASE, SINCE TVA IS REQUIRED UNDER THE
ACT TO MAKE POWER AVAILABLE TO PUBLIC BODIES AND COOPERATIVES WITHIN
THE PERMISSIBLE ARE.  /9/  IN MAKING THIS DETERMINATION AS TO THE MOST
APPROPRIATE BOUNDARIES FOR ITS SERVICE AREA, THE TVA BOARD WILL
NORMALLY EVALUATE THE ECONOMIC AND ENGINEERING ASPECTS OF PROVIDING ITS
SERVICE TO THE CUSTOMERS IN QUESTION, ESPECIALLY IN RELATION TO THE
PARTICULAR TOPOGRAPHY OF THE AFFECTED REGION.  GIVEN THE INNATE AND
INEVITABLE VAGUENESS OF THE "AREA" CONCEPT AND THE COMPLEXITY OF THE
FACTORS RELEVANT TO DECISION IN THIS MATTER, WE THINK IT IS MORE
EFFICIENT, AND THUS MORE IN LINE WITH THE OVERALL PURPOSES OF THE ACT,
FOR THE COURTS TO TAKE THE TVA'S "AREA" DETERMINATIONS AS THEIR
STARTING POINTS AND TO SET THESE DETERMINATIONS ASIDE ONLY WHEN THEY
LACK REASONABLE SUPPORT IN RELATION TO THE STATUTORY PURPOSE OF
CONTROLLING, BUT NOT ALTOGETHER PROHIBITING, TERRITORIAL EXPANSION. 
CF. SEC V. NEW ENGLAND ELECTRIC, 384 U.S. 176, 185 (1966); BATES &
GUILD CO. V. PAYNE, 194 U.S. 106, 109-110 (1904). 

        III. 

TESTED BY THIS STANDARD, WE THINK THE DETERMINATION OF THE TVA BOARD
WITH RESPECT TO CLAIBORNE COUNTY SHOULD HAVE BEEN UPHELD BY THE COURT
BELOW.  NEITHER THE LANGUAGE OF SEC. 15D, ITS LEGISLATIVE HISTORY, NOR
ANY OF THE ECONOMIC AND TECHNICAL CIRCUMSTANCES OF THIS PARTICULAR
LOCALITY SUGGEST THAT THE TVA BOARD'S DETERMINATION HERE EXCEEDED THE
OUTER BOUNDARIES OF CHOICE CONTEMPLATED IN THE ACT. 

CERTAINLY NOTHING IN THE LANGUAGE OF SEC. 15DA) ITSELF FORECLOSES
THE TVA'S PRESENT DECISION.  THE SECOND PARAGRAPH OF THAT SECTION
READS: 

     "NOTHING IN THIS SUBSECTION SHALL PREVENT THE CORPORATION OR

  ITS DISTRIBUTORS FROM SUPPLYING ELECTRIC POWER TO ANY CUSTOMER

  WITHIN ANY AREA IN WHICH THE CORPORATION OR ITS DISTRIBUTORS HAD

  GENERALLY ESTABLISHED ELECTRRIC SERVICE ON JULY 1, 1957, AND TO

  WHICH ELECTRIC SERVICE WAS NOT BEING SUPPLIED FROM ANY OTHER

  SOURCE ON THE EFFECTIVE DATE OF THIS ACT." 

IN LIGHT OF THIS PROVISION, RESPONDENT ARGUES THAT EVEN WITHIN ITS
"AREA," TVA MAY NOT EXTEND ITS SERVICES TO NEW CUSTOMERS PREVIOUSLY
SERVED BY A PRIVATE COMPANY.  LITERALLY, OF COURSE, THIS LANGUAGE DOES
NOT ESTABLISH SUCH A RULE.  IT SIMPLY STATES THAT WHEN A CUSTOMER IS
SERVED BY A PRIVATE UTILITY IN THIS AREA OF GENERALLY ESTABLISHED
SERVICE, AN AREA PERHAPS BROADER THAN THE "AREA" OF PRIMARY SERVICE
WHICH IS CONTROLLING UNDER THE FIRST PARAGRAPH OF SEC. 15DA), THE ACT
MAY PREVENT TVA FROM SUPPLYING THE CUSTOMER; OTHER PARTS OF THE
SUBSECTION MUST BE LOOKED TO FOR THE ACTUAL PROHIBITION.  THIS LITERAL
READING, MOREOVER, IS THE ONLY APPROPRIATE ONE IN LIGHT OF OTHER
PROVISIONS OF THE STATUTE.  THE FIRST PARAGRAPH OF SEC. 15DA)
AUTHORIZES TVA TO PROVIDE POWER NOT ONLY WITHIN ITS "AREA" BUT ALSO
WITHIN AN ADDITIONAL REGION "EXTENDING NOT MORE THAN FIVE MILES AROUND
THE PERIPHERY OF SUCH AREA."  THIS IS FOLLOWED BY A PROVISO DENYING TVA
THE RIGHT TO SERVE WITHIN THIS ADDITIONAL REGION ANY "MUNICIPALITY
RECEIVING ELECTRIC SERVICE FROM ANOTHER SOURCE ON OR AFTER JULY 1,
1957."  SINCE THE ACT MAKES THE EXISTENCE OF A PRIVATE SUPPLIER AN
EXPLICIT BAR TO TVA EXPANSION ONLY WITHIN THE ADDITIONAL REGION, WE
CANNOT READ THE STATUTE AS ALSO MAKING THE EXISTENCE OF A PRIVATE
SUPPLIER, IN AND OF ITSELF, AN AUTOMATIC BAR TO EXPANSION IN THE
PRIMARY SERVICE "AREA." 

THE PARTIES HAVE ALSO CALLED OUR ATTENTION TO NUMEROUS INCIDENTS IN
THE LEGISLATIVE HISTORY SUGGESTING THAT CONGRESS MAY HAVE REGARDED THE
VERY VILLAGES INVOLVED IN THIS CASE AS EITHER INSIDE OR OUTSIDE OF
TVA'S SERVICE AREA.  PETITIONERS NOTE THAT MAPS PLACED BEFORE THE
CONGRESSIONAL COMMITTEES SHOWED THE TAZEWELLS AS WITHIN TVA'S PRIMARY
SERVICE AREA.  RESPONDENT COUNTERS THAT ONE MAP SUBMITTED TO THE HOUSE
PUBLIC WORKS COMMITTEE SHOWED THE TAZEWELLS AS WITHIN RESPONDENT'S
SERVICE AREA.  IN ADDITION, RESPONDENT NOTES THAT A "GENTLEMEN'S
AGREEMENT" BETWEEN TVA AND NEIGHBORING PRIVATE UTILITIES HAD PLACED THE
TAZEWELLS WITHIN RESPONDENT'S AREA, AND RESPONDENT REFERS TO A NUMBER
OF STATEMENTS INDICATING THAT VARIOUS SPONSORS OF T E TERRITORIAL
LIMITATIONS INTENDED TO ENACT THE "GENTLEMEN'S AGREEMENT" INTO LAW. 

WE DO NOT FIND ANY OF THIS INFORMATION PARTICULARLY HELPFUL IN
RESOLVING THE QUESTION BEFORE US.  THE MAPS ON WHICH PETITIONERS RELY
WERE LARGE-SCALE REPRESENTATIONS OF TVA'S ENTIRE MULTISTATE SYSTEM, AND
THEY WERE SUBMITTED TO VARIOUS COMMITTEES FOR GENERAL REFERENCE.  EVEN
IF ALL THESE MAPS HAD PLACED THE TAZEWELLS IN THE SAME AREA, IT WOULD
BE ARTIFICIAL IN THE EXTREME TO ASSUME THAT CONGRESS ACTUALLY
ENTERTAINED ANY SPECIFIC INTENTION WITH RESPECT TO THESE SMALL VILLAGES
IN ONE TINY PORTION OF THE COUNTY, THE STATE AND THE MAP.  WITH RESPECT
TO THE "GENTLEMEN'S AGREEMENT," IT IS UNDENIABLE THAT MANY MEMBERS OF
CONGRESS DID HOPE TO FREEZE COMPLETELY THE EXISTING SITUATION BY
ENACTMENT OF THE TERRITORIAL LIMITATION.  OTHERS, THE MAJORITY OF THE
SENATE PUBLIC WORKS COMMITTEE IN PARTICULAR, UNDOUBTEDLY SOUGHT TO
INCLUDE LANGUAGE THAT WOULD AUTHORIZE ADJUSTMENTS AND PERMIT A CERTAIN
AMOUNT OF ELASTICITY IN THE AVAILABILITY OF TVA SERVICE.  WE THINK IT
IS SUFFICIENT TO NOTE, WITHOUT TRACING ALL THE CHANGES IN THE WORDING
OF THE TERRITORIAL LIMITATION, THAT THE LANGUAGE OF THE ACT IN ITS
FINAL FORM IS A COMPROMISE AND THAT THE VIEWS OF THOSE WHO SOUGHT THE
MOST RESTRICTIVE WORDING CANNOT CONTROL INTERPRETATION OF THE
COMPROMISE VERSION. 

FINALLY, WE THINK THAT APART FROM THE STRUCTURE OF THE ACT AND ITS
LEGISLATIVE HISTORY, THE FACTS OF THE SITUATION IN CLAIBORNE COUNTY, IN
TENNESSEE, AND IN KENTUCKY SUPPORT RATHER THAN UNDERCUT THE TVA BOARD'S
DETERMINATION.  THE PARTIES PLACE GREAT STRESS ON THE QUESTION WHETHER
RESPONDENT'S SERVICE AREA SHOULD BE CHARACTERIZED AS A "PENINSULA"
ATTACHED TO ITS MAIN REGION OF SERVICE OR AS A MERE "ISLAND" SURROUNDED
BY TVA TERRITORY AND THEREFORE MORE PROPERLY SUBJECT TO TVA INTRUSION. 
BUT WE CAN ATTRIBUTE NO CONTROLLING SIGNIFICANCE TO SUCH
CHARACTERIZATIONS.  THE MOST ISOLATED AREA OF PRIVATE SERVICE WILL
NECESSARILY BE CONNECTED TO THE PRIVATE COMPANY'S MAIN AREA BY AT LEAST
ONE POWER LINE SUCH AS THE ONE PRESENT HERE, AND THE COMPANY MAY EVEN,
AS HERE, SERVE SCATTERED CUSTOMERS ALONG THE LINE-- IF INDEED THE
REGION CONTAINS ANY CUSTOMERS TO SERVE.  AT THE SAME TIME A BROAD AREA
SERVED ALMOST ENTIRELY BY A PRIVATE COMPANY AND CONTIGUOUS WITH ITS
MAIN SERVICE AREA MAY BE CRISSCROSSED BY THE LINES OF TVA DISTRIBUTORS
AND TVA MAY EVEN HAVE SCATTERED CUSTOMERS ALONG THESE LINES; THE FACT
THAT THE PRIVATE COMPANY WAS THUS SURROUNDED BY TVA MIGHT NOT UNDER
THIS STATUTE JUSTIFY TVA EXPANSION INTO THE "PENINSULA" OR "ISLAND,"
WHATEVER IT MAY BE, SERVED BY PRIVATE POWER.  IN THE PRESENT CASES
RESPONDENT DID SERVE A SUBSTANTIAL NUMBER OF CUSTOMERS IN THE CORRIDOR
BETWEEN THE TAZEWELLS AND ITS MAIN SERVICE AREA IN KENTUCKY, BUT IF A
"PENINSULA," IT WAS AT BEST A VERY NARROW AND TINY ONE IN RELATION TO
THE POSSIBLE PATTERNS OF POWER DISTRIBUTION.  TVA, ON THE OTHER HAND,
SERVED MOST OF THE RURAL AREAS IN CLAIBORNE COUNTY AND HAD A
SUBSTANTIAL MINORITY OF THE CUSTOMERS IN THE TAZEWELLS THEMSELVES. 
UNDER THESE CIRCUMSTANCES, THE TVA BOARD COULD PROPERLY HAVE CONCLUDED
THAT THE PATTERN OF ELECTRIC POWER DISTRIBUTION WOULD BE MORE SENSIBLE
AND EFFICIENT IF TVA COMPETED IN THE ENTIRE TAZEWELL MUNICIPAL AREA AS
WELL AS SERVING THE RELATIVELY UNPROFITABLE RURAL CUSTOMERS, MANY OF
WHOM WERE RATHER CLOSE TO RESPONDENT'S TRANSMISSION LINE INTO THE
TAZEWELLS.  IN ADDITION, THE BOARD COULD HAVE CONSIDERED THE EXISTENCE
OF ITS SIGNIFICANT, THOUGH NOT PRIMARY, SERVICE IN THE TAZEWELLS
THEMSELVES AS A COMPELLING REASON FOR INCLUDING THESE VILLAGES IN ITS
"AREA," SINCE THE FACTORS SUPPORTING INCLUSION WERE IN ANY EVENT
SIGNIFICANT AND SINCE THE GREAT DISPARITY OF RATES IN THE VILLAGES HAD
RESULTED IN SIGNIFICANT ECONOMIC DISLOCATIONS. 

UNDER ALL THESE CIRCUMSTANCES WE CANNOT SAY THAT THE CONCLUSION OF
THE TVA BOARD IN THE PRESENT CASES IS INCOMPATIBLE WITH THE "AREA"
CONCEPT FORMULATED IN THE ACT.  WE THEREFORE REVERSE THE JUDGMENT OF
THE COURT OF APPEALS AND AFFIRM THAT OF THE DISTRICT COURT. 

              IT IS SO ORDERED. 

/1A/  TOGETHER WITH NO. 50, POWELL VALLEY ELECTRIC COOPERATIVE V.
KENTUCKY UTILITIES CO., AND NO. 51, TENNESSEE VALLEY AUTHORITY V.
KENTUCKY UTLIITIES CO., ALSO ON CERTIORARI TO THE SAME COURT. 

/1/  TENNESSEE VALLEY AUTHORITY ACT OF 1933, SEC. 15DA), 73 STAT.
280, AS AMENDED, 73 STAT. 338, 16 U.S.C. 831N-4(A).  THE FULL TEXT OF
THE RELEVANT PORTION OF SEC. 15DA) IS AS FOLLOWS: 

"UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY ACT OF CONGRESS THE
CORPORATION SHALL MAKE NO CONTRACTS FOR THE SLAE OR DELIVERY OF POWER
WHICH WOULD HAVE THE EFFECT OF MAKING THE CORPORATION OR ITS
DISTRIBUTORS, DIRECTLY OR INDIRECTLY, A SOURCE OF POWER SUPPLY OUTSIDE
THE AREA FOR WHICH THE CORPORATION OR ITS DISTRIBUTORS WERE THE PRIMARY
SOURCE OF POWER SUPPLY ON JULY 1, 1957, AND SUCH ADDITIONAL AREA
EXTENDING NOT MORE THAN FIVE MILES AROUND THE PERIPHERY OF SUCH AREA AS
MAY BE NECESSARY TO CARE FOR THE GROWTH OF THE CORPORATION AND ITS
DISTRIBUTORS WITHIN SAID AREA:  PROVIDED, HOWEVER, THAT SUCH ADDITIONAL
AREA SHALL NOT IN ANY EVENT INCREASE BY MORE THAN 2 1/2 PER CENTUM (OR
TWO THOUSAND SQUARE MILES, WHICHEVER IS THE LESSER) THE AREA FOR WHICH
THE CORPORATION AND ITS DISTRIBUTORS WERE THE PRMARY SOURCE OF POWER
SUPPLY ON JULY 1, 1957:  AND PROVIDED FURTHER, THAT NO PART OF SUCH
ADDITIONAL AREA MAY BE IN A STATE NOT NOW SERVED BY THE CORPORATION OR
ITS DISTRIBUTORS OR IN A MUNICIPALITY RECEIVING ELECTRIC SERVICE FROM
ANOTHER SOURCE ON OR AFTER JULY 1, 1957, AND NO MORE THAN FIVE HUNDRED
SQUARE MILES OF SUCH ADDITIONAL AREA MAY BE IN ANY ONE STATE NOW SERVED
BY THE CORPORATION OR ITS DISTRIBUTORS. 

"NOTHING IN THIS SUBSECTION SHALL PREVENT THE CORPORATION OR ITS
DISTRIBUTORS FROM SUPPLYING ELECTRIC POWER TO ANY CUSTOMER WITHIN ANY
AREA IN WHICH THE CORPORATION OR ITS DISTRIBUTORS HAD GENERALLY
ESTABLISHED ELECTRIC SERVICE ON JULY 1, 1957, AND TO WHICH ELECTRIC
SERVICE WAS NOT BEING SUPPLIED FROM ANY OTHER SOURCE ON THE EFFECTIVE
DATE OF THIS ACT." 

/2/  FOR THE OWNER OF AN ELECTRICALLY HEATED HOME, TVA POWER MIGHT
COST $30.50 FOR A WINTER MONTH AS AGAINST $75.53 FOR THE IDENTICAL
AMOUNT OF POWER SUPPLIED BY RESPONDENT. 

/3/  S. 2373, 84TH CONG., 1ST SESS. (1955); H.R. 4266, 85TH CONG.,
1ST SESS. (1957). 

/4/  S. 1855, S. 1869, S. 1986, S. 2145, 85TH CONG., 1ST SESS.
(1957); S. 931, H.R. 3460, 86TH CONG., 1ST SESS. (1959). 

/5/  ONE OF THE SENATORS ACTIVE IN FRAMING THE TERRITORIAL
LIMITATION EXPRESSED CONCERN OVER TVA'S POWERFUL BARGAINING POSTITION
WITH RESPECT TO ITS PURCHASE OF COAL.  SEE.  S. REP. NO. 470, 86TH
CONG., 1ST SESS., 54 (1959) (SUPPLEMENTAL VIEWS OF SENATOR RANDOLPH). 

/6/  SEE, E.G., ID., AT 9 (MAJORITY REPORT); ID., AT 54-55
(SUPPLEMENTAL VIEWS OF SENATOR RANDOLPH); 105 CONG.REC.13053 (JULY 9,
1959) (REMARKS OF SENATOR COOPER); ID., AT 13054 (REMARKS OF SENATOR
HOLLAND); ID., AT 13055 (REMARKS OF SENATOR KERR); ID., AT 13060-13061
(REMARKS OF SENATOR RANDOLPH); ID., AT 13061 (REMARKS OF SENATOR BYRD);
HEARINGS ON H.R. 3460 BEFORE HOUSE COMMITTEE ON PUBLIC WORKS, MARCH 10
11, 1959, 86TH CONG., 1ST SESS., 110, 115 (TESTIMONY OF REPRESENTATIVE
VINSON); ID., AT 122 (TESTIMONY OF REPRESENTATIVE BOYKIN). 

/7/  PETITIONERS' RELIANCE ON KANSAS CITY POWER & LIGHT CO. V.
MCKAY, 96 U.S.APP.D.C. 273, 225 F.2D 924, CERT. DENIED, 350 U.S. 884
(1955), IS THUS MISPLACED.  THE COURT IN MCKAY RULED THAT AN EXPLICIT
STATUTORY PROVISION WAS NECESSARY TO CONFER STANDING BECAUSE OF THE
"LONG ESTABLISHED RULE" THAT AN INJURED COMPETITOR CANNOT SUE TO
ENFORCE STATUTORY REQUIREMENTS NOT DESIGNED TO PROTECT COMPETITORS.  IN
THE CASE OF STATUTES CONCERNED WITH PROTECTING COMPETITIVE INTERESTS,
THE "LONG ESTABLISHED RULE" IS OF COURSE PRECISELY THE OPPOSITE. 

/8/  THE COURT OF APPEALS STATED AT ONE POINT: 

"BUT, TVA ARGUES, THE 1959 ACT MUST BE READ AS COMMITTING TO ITS
BOARD OF DIRECTORS AUTHORITY TO DETERMINE 'THE AREA' IN WHICH IT WAS
THE PRIMARY SOURCE OF POWER ON THAT DATE.  WE FIND NO WORDS IN THE ACT
WHICH DIRECTLY IMPLIEDLY DELEGATED TO TVA'S BOARD SUCH AUTHORITY."  375
F.2D, AT 412.  LATER IN ITS OPINION, HOWEVER, THE COURT SUGGESTS THAT
THIS STATEMENT WAS NOT INTENDED TO DENY ANY ROLE TO THE BOARD'S
DETERMINATION: "WE HOLD THAT THE RESOLUTION OF THE TVA BOARD DID NOT
FORECLOSE THE TESTING OF ITS VALIDITY BY THE DISTRICT JUDGE OR BY THIS
COURT ON THIS APPEAL."  375 F.2D, AT 415. 

/9/  SEE SEC. 12 OF THE TENNESSEE VALLEY AUTHORITY ACT, 48 STAT. 65,
16 U.S.C. 831K. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE HARLAN, DISSENTING. 

THESE CASES PRESENT A NARROW QUESTION OF STATUTORY CONSTRUCTION, UPON
WHICH DIFFERING VIEWS MIGHT REASONABLY BE ENTERTAINED.  I CANNOT,
HOWEVER, AGREE THAT THE POSITION NOW ADOPTED BY THE COURT WILL
SATISFACTORILY ACHIEVE THE PURPOSES EVIDENTLY SOUGHT BY CONGRESS IN
1959.  I THEREFORE RESPECFULLY DISSENT. 

THE SCOPE OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IS, OF COURSE,
GOVERNED PRINCIPALLY BY THE TERMS AND PURPOSES OF THE UNDERLYING
STATUTORY SYSTEM.  COMPARE GENERALLY 4 DAVIS, ADMINISTRATIVE LAW
TREATISE 30.03 (1958); JAFFE, JUDICIAL REVIEW:  QUESTION OF LAW, 69
HARV.L.REV.  239; JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 546
ET SEQ. (1965).  THE PURPOSES OF THESE STATUTORY PROVISIONS ARE
UNCOMMONLY PLAIN.  THE COURT ACKNOWLEDGES, AS IT MUST, THAT "IT IS
CLEAR AND UNDISPUTED THAT PROTECTION OF PRIVATE UTILITIES FROM TVA
COMPETITION WAS ALMOST UNIVERSALLY REGARDED AS THE PRIMARY OBJECTIVE OF
THE (SERVICE AREA) LIMITATION."  ANTE, AT 7. 

THE PROVISIONS IN QUESTION WERE EXPECTED TO PROTECT PRIVATE
UTILITIES BY "DEFINING)" AND "LIMITING)" THE "WORKING ARRANGEMENT THAT
NOW EXISTS WITH RESPECT TO" THE AUTHORITY'S SERVICE AREA.  S. REP. NO.
470, 86TH CONG., 1ST SESS., 8.  THEY WERE THUS INTENDED TO CONSTRICT
THE AUTHORITY'S DISCRETION AS TO THE EXPANSION OF ITS AREA OF SERVICE. 
IT IS NO DISPARAGEMENT OF THE AUTHORITY TO RECOGNIZE THAT AN ORDERLY
SYSTEM OF LAW DOES NOT PLACE THE ENFORCEMENT OF A RESTRAINT UPON
DISCRETION INTO THE UNFETTERED HANDS OF THE PARTY SOUGHT TO BE
RESTRAINED; SURELY, THEREFORE, THE SCOPE OF JUDICIAL REVIEW OF
PROCEEDINGS INVOLVING SUCH LIMITATIONS SHOULD BE MEASURED GENEROUSLY. 

THE ROLE OF THE COURTS SHOULD, IN PARTICULAR, BE VIEWED HOSPITABLY
WHERE, AS HERE, THE QUESTION SOUGHT TO BE REVIEWED DOES NOT
SIGNIFICANTLY ENGAGE THE AGENCY'S EXPERTISE.  THIS IS AN INSTANCE
"WHERE THE ONLY OR PRINCIPAL DISPUTE RELATES TO THE MEANING OF THE
STATUTORY TERM," NLRB V. MARCUS TRUCKING CO., 286 F.2D 583, 591; IT
MAY, AS JUDGE FRIENDLY HAS NOTED, THEREFORE APPROPRIATELY BE
DENOMINATED A "QUESTION OF LAW."  IBID. IT PRESENTS ISSUES ON WHICH
COURTS, AND NOT THE AUTHORITY, ARE RELATIVELY MORE EXPERT.  SEE 4
DAVIS, SUPRA, AT 30.04.  NO DOUBT "ECONOMIC AND ENGINEERING ASPECTS,"
ANTE, AT 9, INCLUDING TOPOGRAPHY, MAY INFLUENCE THE AUTHORITY'S WISH TO
EXPAND ITS AREA OF SERVICE, BUT SUCH FACTORS CAN HARDLY PRESCRIBE THE
TERMS OR STRINGENCY OF CONGRESS' PROHIBITIONS AGAINST EXPANSION. 

IN LIGHT OF THESE CONSIDERATIONS, I AM UNABLE TO ACCEPT THIS
DECISION, THE EFFECT OF WHICH IS TO RESTRICT SEVERELY THE SCOPE OF
JUDICIAL REVIEW OF THE AUTHORITY'S DETERMINATIONS UNDER SEC. 15DA). 
THE COURT FORBIDS REVIEWING COURTS TO SET ASIDE SUCH DETERMINATIONS
UNLESS THEY LACK "REASONABLE SUPPORT," AND THEN DISCOVERS SUCH SUPPORT
HERE IN THE MOST MINIMAL EVIDENCE.  /1/  AT BOTTOM, THE SUPPORT ADDUCED
FOR THIS DETERMINATION BY THE COURT CONSISTS OF TWO FACTS:  FIRST, THE
AUTHORITY'S DISTRIBUTOR SERVED ON JULY 1, 1957, EIGHT CUSTOMERS IN NEW
TAZEWELL AND 20 CUSTOMERS IN TAZEWELL; /2/  AND SECOND, AT LEAST SOME
OF THE OTHER RESIDENTS OF THE TWO MUNICIPALITIES QUITE UNDERSTANDABLY
WOULD PREFER TO PAY THE LOWER RATES FOR ELECTRICAL POWER CHARGED BY THE
AUTHORITY.  /3/  IF THESE FACTS ILLUSTRATE THE "REASONABLE SUPPORT"
DEMANDED BY THE COURT, CONGRESS' STRINGENT LIMITATION UPON THE
AUTHORITY HSD PROVED EXTRAORDINARILY FRAGILE.  /4/ 

NEITHER THE STATUTE NOR THE PERTINENT LEGISLATIVE HISTORY PROVIDES
ANY FORMULA FOR THE PRECISE MEASUREMENT OF THE AUTHORITY'S SERVICE
AREA.  HOWEVER, GIVEN CONGRESS' CLEAR PURPOSE TO RESTRICT STRINGENTLY
THE EXPANSION OF THE AREA SERVED BY THE AUTHORITY ON JULY 1, 1957, I
THINK THAT THE EMPHASIS PLACED BY THE COURT OF APPEALS ON THE NUMBER OF
CUSTOMERS SERVED ON THAT DATE BY RESPONDENT AND THE AUTHORITY OFFERS
THE BASIS OF A SENSIBLE AND PRACTICAL STANDARD.  CERTAINLY CONGRESS DID
NOT WISH OR EXPECT THAT, AS THIS COURT NOW HOLDS, THE QUESTION SHOULD
BE LEFT LARGELY, IF NOT ENTIRELY, IN THE HANDS OF THE AUTHORITY.  I
WOULD THEREFORE AFFIRM THE JUDGMENT BELOW FOR THE REASONS GIVEN IN
JUDGE O'SULLIVAN'S OPINION FOR THE COURT OF APPEALS, 375 F.2D 403,
SUPPLEMENTED BY THE CONSIDERATIONS DISCUSSED IN THIS OPINION. 

/1/  IT SHOULD BE NOTED THAT THE AGENCY DETERMINATION UPON WHICH THE
COURT PLACES SO MUCH WEIGHT WAS REACHED AT A "SPECIAL MEETING" OF THE
BOARD OF DIRECTORS ON AUGUST 26, 1964, MORE THAN EIGHT MONTHS AFTER
RESPONDENT FILED ITS COMPLAINT, AND ONLY THREE WEEKS BEFORE TRIAL.  ONE
OF THE STAFF MEMORANDA UPON WHICH THE DETERMINATION WAS BASED REFERS
SPECIFICALLY TO THIS LITIGATION.  ONE MIGHT HAVE SUPPOSED THAT A
DETERMINATION WHICH WAS MADE POST LITEM MOTAM WARRANTED AT LEAST
CAUTIOUS TREATMENT. 

/2/  THE COURT'S CHOICE OF DESCRIPTIVE PHRASE IS NOTEWORTHY.  THE
COURT SUGGESTS THAT THE AUTHORITY'S DISTRIBUTOR SERVED "A SUBSTANTIAL
MINORITY" OF THE CUSTOMERS IN THE TWO TAZEWELLS.  THE DISTRICT COURT
FOUND, IN FACT, THAT ON JULY 1, 1957, RESPONDENT SERVED 95.3% OF THOSE
CUSTOMERS.  237 F.SUPP.  502, 513. 

/3/  THE COURT INTIMATES DARKLY THAT "ECONOMIC DISLOCATIONS" HAVE
OCCURRED.  THE PERTINENT EVIDENCE APPEARS TO CONSIST AT BOTTOM OF
ALLEGATIONS THAT HOUSING AND OTHER FORMS OF ECONOMIC DEVELOPMENT TEND
TO LOCATE IN AREAS IN WHICH THE AUTHORITY'S LESS EXPENSIVE ELECTRICAL
POWER IS AVAILABLE.  SURELY THE COURT DOES NOT SUPPOSE THAT CONGRESS IN
1959 WAS UNAWARE THAT THE AUTHORITY'S ELECTRICAL POWER IS RELATIVELY
INEXPENSIVE, OR THAT IT DID NOT RECOGNIZE THAT THOSE WHO RESIDE OUTSIDE
THE AUTHORITY'S SERVICE AREA WOULD FIND IT ECONOMICALLY DESIRABLE TO
HAVE THAT AREA EXTENDED SO AS TO INCLUDE THEMSELVES.     /4/  IT IS
PERTINENT TO NOTE THAT NEITHER OF THE TWO STAFF MEMORANDA UPON WHICH
THE AUTHORITY'S BELATED DETERMINATION WAS EXPLICITLY BASED INCLUDED
AMONG THE "FACTS WHICH APPEAR TO BE RELEVANT" (MEMORANDUM FROM THE
MANAGER OF POWER TO THE GENERAL MANAGER, TENNESSEE VALLEY AUTHORITY,
AUGUST 25, 1964, 2 TRANSCRIPT OF RECORD 801) ANY REFERENCES TO
"ECONOMIC AND ENGINEERING ASPECTS" (ANTE, AT 9), OR EVEN TO ANY
"ECONOMIC DISLOCATIONS" (ANTE, AT 13).  WHATEVER THE RELEVANCE OF THESE
FACTORS IN THE EYES OF THE COURT, THE AUTHORITY'S STAFF APPEARS TO HAVE
THOUGHT THEM IMMATERIAL.  THE DETERMINATION ITSELF DOES NOT, OF COURSE,
REFER TO THESE FACTORS. 

WILLIAM R. STANIFER ARGUED THE CAUSE FOR PETITIONERS IN NOS. 40 AND
50.  WITH HIM ON THE BRIEF FOR PETITIONERS IN NO. 40 WAS PHILIP P.
ARDERY.  CLYDE Y. CRIDLIN WAS ON THE BRIEF FOR PETITIONER IN NO. 50. 
ROBERT H. MARQUIS ARGUED THE CAUSE FOR PETITIONER IN NO. 51.  WITH HIM
ON THE BRIEF WERE ACTING SOLICITOR GENERAL SPRITZER, RICHARD A. POSNER,
CHARLES J. MCCARTHY AND THOMAS A. PEDERSEN. 

MALCOLM Y. MARSHALL ARGUED THE CAUSE FOR RESPONDENT IN ALL THREE
CASES.  WITH HIM ON THE BRIEF WERE SQUIRE R. OGDEN AND JAMES S. WELCH. 

..END :










SCHNEIDER V. SMITH, 390 U.S. 17 


       SCHNEIDER V. SMITH, COMMANDANT, UNITED STATES COAST GUARD. 

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN

           DISTRICT OF WASHINGTON. 

        NO. 196.  ARGUED DECEMBER 12-13, 1967.-- DECIDED JANUARY
16,

           1968. 


APPELLANT APPLIED TO THE COMMANDANT OF THE COAST GUARD FOR VALIDATION
OF HIS MERCHANT MARINER'S DOCUMENT EVIDENCING HIS ABILITY TO ACT AS A
SECOND ASSISTANT ENGINEER.  SUCH VALIDATION IS REQUIRED BY REGULATIONS
PROMULGATED PURSUANT TO THE MAGNUSON ACT, WHICH AUTHORIZES THE
PRESIDENT, IF HE FINDS THAT "THE SECURITY OF THE UNITED STATES IS
ENDANGERED BY . . . SUBVERSIVE ACTIVITY," TO ISSUE REGULATIONS "TO
SAFEGUARD . . . FROM SABOTAGE OR OTHER SUBVERSIVE ACTS" ALL "VESSELS"
IN THE TERRITORIES OR WATERS UNDER UNITED STATES JURISDICTION.  IN
RESPONSE TO A QUESTIONNAIRE, APPELLANT STATED THAT HE HAD BEEN A MEMBER
OF SOME ORGANIZATIONS ON THE ATTORNEY GENERAL'S LIST OF SUBVERSIVE
ORGANIZATIONS, BUT REFUSED TO ANSWER CERTAIN QUESTIONS ON A
SUPPLEMENTAL FORM RELATING GENERALLY TO THE NATURE AND EXTENT OF HIS
MEMBERSHIP IN ANY OF THE GROUPS AND TO HIS POLITICAL PHILOSOPHY.  WHEN
THE COMMANDANT REFUSED TO PROCESS THE APPLICATION FURTHER, APPELLANT
BROUGHT THIS ACTION SEEKING A DECLARATION THAT THE ACT AND THE
COMMANDANT'S ACTIONS THEREUNDER WERE UNCONSTITUTIONAL AND PRAYING THAT
THE COMMANDANT BE DIRECTED TO APPROVE THE APPLICATION.  A THREE-JUDGE
COURT DISMISSED THE COMPLAINT.  HELD: 

1.  SINCE APPELLANT CHALLENGED THE ACT'S CONSTITUTIONALITY ON
GROUNDS OF VAGUENESS AND ABRIDGMENT OF FIRST AMENDMENT RIGHTS AND ALSO
QUESTIONED WHETHER THE POWER TO INSTALL A SCREENING PROGRAM WAS
PROPERLY DELEGATED, THE CASE WAS ONE TO BE HEARD BY A THREE-JUDGE COURT
AND THIS COURT HAS JURISDICTION OF THE APPEAL.  P. 22. 

2.  THE ACT GIVES THE PRESIDENT NO EXPRESS AUTHORITY TO SET UP A
SCREENING PROGRAM FOR PERSONNEL ON AMERICAN MERCHANT VESSELS.  P. 22. 

3.  THE PROCEDURE INVOLVED HERE, WHICH IS NOT CONCERNED WITH
APPELLANT'S CONDUCT, BUT WHICH ARGUABLY DOES IMPINGE ON HIS FIRST
AMENDMENT FREEDOMS, CANNOT BE JUSTIFIED BY THE LANGUAGE OF THE ACT, AS
THE ACT IS TO BE READ NARROWLY TO AVOID QUESTIONS CONCERNING
"ASSOCIATIONAL FREEDOM" AND OTHER RIGHTS WTHIN THE PROTECTION OF THE
FIRST AMENDMENT.  PP. 22-27. 

263 F.SUPP.  496, REVERSED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLANT, WHO HAS SERVED ON BOARD AMERICAN-FLAG COMMERCIAL VESSELS
IN VARIOUS CAPACITIES, IS NOW QUALIFIED TO ACT AS A SECOND ASSISTANT
ENGINEER ON STEAM VESSELS.  BUT BETWEEN 1949 AND 1964 HE WAS EMPLOYED
IN TRADES OTHER THAN THAT OF A MERCHANT SEAMAN.  IN OCTOBER 1964 HE
APPLIED TO THE COMMANDANT OF THE COAST GUARD FOR A VALIDATION OF THE
PERMIT OR LICENSE WHICH EVIDENCES HIS ABILITY TO ACT AS A SECOND
ASSISTANT ENGINEER. 

UNDER THE MAGNUSON ACT, 64 STAT. 427, 50 U.S.C. 191(B), THE
PRESIDENT IS AUTHORIZED, IF HE FINDS THAT "THE SECURITY OF THE UNITED
STATES IS ENDANGERED BY . . . SUBVERSIVE ACTIVITY," TO ISSUE RULES AND
REGULATIONS "TO SAFEGUARD AGAINST DESTRUCTION, LOSS, OR INJURY FROM
SABOTAGE OR OTHER SUBVERSIVE ACTS" ALL "VESSELS" IN THE TERRITORIES OR
WATERS SUBJECT TO THE JURISDICTION OF THE UNITED STATES.  /1/ 

PRESIDENT TRUMAN PROMULGATED REGULATIONS, 33 CFR, PT. 6, WHICH GIVE
THE COMMANDANT OF THE COAST GUARD AUTHORITY TO GRANT OR WITHHOLD
VALIDATION OF ANY PERMIT OR LICENSE EVIDENCING THE RIGHT OF A SEAMAN TO
SERVE ON A MERCHANT VESSEL OF THE UNITED STATES.  SEC. 6.10-3.  HE IS
DIRECTED NOT TO ISSUE SUCH VALIDATION UNLESS HE IS SATISFIED THAT "THE
CHARACTER AND HABITS OF LIFE OF SUCH PERSON ARE SUCH AS TO AUTHORIZE
THE BELIEF THAT THE PRESENCE OF THE INDIVIDUAL ON BOARD WOULD NOT BE
INIMICAL TO THE SECURITY OF THE UNITED STATES."  SEC. 6.10-1. 

THE QUESTIONNAIRE, WHICH APPELLANT IN HIS APPLICATION WAS REQUIRED
TO SUBMIT, CONTAINED THE FOLLOWING INQUIRY WHICH HE ANSWERED: 

     "ITEM 4.  DO YOU NOW ADVOCATE, OR HAVE YOU EVER ADVOCATED, THE

  OVERTHROW OR ALTERATION OF THE GOVERNMENT OF THE UNITED STATES BY

  FORCE OR VIOLENCE OR BE UNCONSTITUTIONAL MEANS? 

     "ANSWER:  NO." 

THE QUESTIONNAIRE CONTAINED THE FOLLOWING INQUIRIES WHICH RELATED TO
HIS MEMBERSHIP AND PARTICIPATION IN ORGANIZATIONS WHICH WERE ON THE
SPECIAL LIST OF THE ATTORNEY GENERAL AS AUTHORIZED BY EXECUTIVE ORDER
10450, 18 FED.REG.  2489: 

     "ITEM 5.  HAVE YOU EVER SUBMITTED MATERIAL FOR PUBLICATION TO

  ANY OF THE ORGANIZATIONS LISTED IN ITEM 6 BELOW? 

     "ANSWER.  NO. 

     "ITEM 6.  ARE YOU NOW, OR HAVE YOU EVER BEEN, A MEMBER OF, OR

  AFFILIATED OR ASSOCIATED WITH IN ANY WAY, ANY OF THE

  ORGANIZATIONS SET FORTH BELOW?  (THERE FOLLOWED A LIST OF MORE

  THAN 250 ORGANIZATIONS.) 

     "ANSWER.  YES. 

     "IF YOUR ANSWER IS 'YES,' GIVE FULL DETAILS IN ITEM 7. 

     "ITEM 7.  (USE THIS SPACE TO EXPLAIN ITEMS 1 THROUGH 6.  . . .

  ATTACH A SEPARATE SHEET IF THERE IS NOT ENOUGH SPACE HERE.) 

     "ANSWER.  I HAVE BEEN A MEMBER OF MANY POLITICAL & SOCIAL

  ORGANIZATIONS, INCLUDING SEVERAL NAMED ON THIS LIST. 

     "I CANNOT REMEMBER THE NAMES OF MOST OF THEM & COULD NOT BE
SPECIFIC ABOUT ANY. 

   "TO THE BEST OF MY KNOWLEDGE, I HAVE NOT BEEN A MEMBER OR

  PARTICIPATED IN THE ACTIVITIES OF ANY OF THESE ORGANIZATIONS FOR

  TEN YEARS." 

UPON RECEIVING THE QUESTIONNAIRE RETURNED BY THE APPELLANT, THE
COMMANDANT ADVISED HIM THAT THE INFORMATION WAS NOT SUFFICIENT AND THAT
ANSWERS TO FURTHER INTERROGATORIES WERE NECESSARY.  /2/ 

IN REPLY, APPELLANT, SPEAKING THROUGH HIS COUNSEL, ADMITTED TO THE
COMMANDANT THAT HE HAD BEEN A MEMBER OF THE COMMUNIST PARTY AS WELL AS
OTHER ORGANIZATIONS ON THE ATTORNEY GENERAL'S LIST AND THAT HE HAD
SUBSCRIBED TO PEOPLE'S WORLD.  HE SAID THAT HE HAD JOINED THE PARTY
BECAUSE OF HIS PERSONAL PHILOSOPHY AND IDEALISTIC GOALS, BUT LATER QUIT
IT AND THE OTHER ORGANIZATIONS DUE TO FUNDAMENTAL DISAGREEMENT WITH
COMMUNIST METHODS AND TECHNIQUES.  BUT BEYOND THAT HE SAID HE WOULD NOT
ANSWER BECAUSE "IT WOULD BE OBNOXIOUS TO A TRULY FREE CITIZEN TO ANSWER
THE KINDS OF QUESTIONS UNDER COMPULSION THAT YOU REQUIRE."  THE
COMMANDANT DECLINED TO PROCESS THE APPLICATION FURTHER, RELYING UPON 33
CFR 121.05(D)(2), WHICH AUTHORIZES HIM TO HOLD THE APPLICATION IN
ABEYANCE IF AN APPLICANT FAILS OR REFUSES TO FURNISH THE ADDITIONAL
INFORMATION. 

APPELLANT THEREUPON BROUGHT THIS ACTION FOR DECLARATORY RELIEF THAT
THE PROVISIONS OF THE MAGNUSON ACT IN QUESTION AND THE COMMANDANT'S
ACTIONS THEREUNDER WERE UNCONSTITUTIONAL, PRAYING THAT THE COMMANDANT
BE DIRECTED TO APPROVE HIS WERE UNCONSTITUTIONAL, PRAYING THAT THE
COMMANDANT BE DIRECTED TO APPROVE HIS APPLICATION AND THAT HE BE
ENJOINED FROM INTERFERING WITH APPELLANT'S EMPLOYMENT UPON VESSELS
FLYING THE AMERICAN FLAG. 

A THREE-JUDGE COURT WAS CONVENED AND THE COMPLAINT WAS DISMISSED.  263
F.SUPP.  496.  THE CASE IS HERE ON APPEAL, 28 U.S.C. 1253.  WE
POSTPONED THE QUESTION OF JURISDICTION TO THE MERITS.  389 U.S. 810. 

WE AGREE, AS DOES APPELLEE, THAT THE CASE WAS ONE TO BE HEARD BY A
THREE-JUDGE COURT AND THAT ACCORDINGLY WE HAVE JURISDICTION OF THIS
APPEAL.  FOR APPELLANT DID RAISE THE QUESTION AS TO WHETHER THE STATUTE
WAS UNCONSTITUTIONAL BECAUSE OF VAGUENESS AND ABRIDGMENT OF FIRST
AMENDMENT RIGHTS AND ALSO QUESTIONED WHETHER THE POWER TO INSTALL A
SCREENING PROGRAM WAS VALIDLY DELEGATED.  A THREE-JUDGE COURT WAS
ACCORDINGLY PROPER.  BAGGETT V. BULLITT, 377 U.S. 360; ZEMEL V. RUSK,
381 U.S. 1. 

THE MAGNUSON ACT GIVES THE PRESIDENT NO EXPRESS AUTHORITY TO SET UP
A SCREENING PROGRAM FOR PERSONNEL ON MERCHANT VESSELS OF THE UNITED
STATES.  AS RESPECTS "ANY FOREIGN-FLAG VESSELS" THE POWER TO CONTROL
THOSE WHO "GO OR REMAIN ON BOARD" IS CLEAR.  50 U.S.C. 191(A).  AS
RESPECTS PERSONNEL OF OUR OWN MERCHANT SHIPS, THE POWER EXISTS UNDER
THE ACT ONLY IF IT IS FOUND IN THE POWER TO "SAFEGUARD" VESSELS AND
WATERFRONT FACILITIES AGAINST "SABOTAGE OR OTHER SUBVERSIVE ACTS," THAT
IS, UNDER SEC. 191(B).  THE SOLICITOR GENERAL ARGUES THAT THE POWER TO
EXCLUDE PERSONS FROM VESSELS "CLEARLY IMPLIES AUTHORITY TO ESTABLISH A
SCREENING PROCEDURE FOR DETERMINING WHO SHALL BE ALLOWED ON BOARD." 
BUT THAT POWER TO EXCLUDE IS CONTAINED IN SEC. 191(A) WHICH, AS NOTED,
APPLIES TO "FOREIGN-FLAG VESSELS," WHILE, AS WE HAVE SIAD, THE ISSUE
TENDERED HERE MUST FIND FOOTING IN SEC. 191(B).  /3/ 

WE AGREE WITH THE DISTRICT COURT THAT KEEPING OUR MERCHANT MARINE
FREE OF SABOTEURS IS WITHIN THE PURVIEW OF THIS ACT.  OUR QUESTION IS A
MUCH NARROWER ONE. 

THE REGULATIONS PRESCRIBE THE STANDARDS BY WHICH THE COMMANDANT IS
TO JUDGE THE "CHARACTER AND HABITS OF LIFE" OF THE EMPLOYEE TO
DETERMINE WHETHER HIS "PRESENCE . . . ON BOARD" THE VESSEL WOULD BE
"INIMICAL TO THE SECURITY OF THE UNITED STATES": 

     "(A) ADVOCACY OF THE OVERTHROW OR ALTERATION OF THE GOVERNMENT

OF THE UNITED STATES BY UNCONSTITUTIONAL MEANS. 

     "(B) COMMISSION OF, OR ATTEMPTS OR PREPARATIONS TO COMMIT, AN

  ACT OF ESPIONAGE, SABOTAGE, SEDITION OR TREASON, OR CONSPIRING

  WITH, OR AIDING OR ABETTING ANOTHER TO COMMIT SUCH AN ACT. 

     "(C) PERFORMING, OR ATTEMPTING TO PERFORM, DUTIES OR OTHERWISE

  ACTING SO AS TO SERVE THE INTERESTS OF ANOTHER GOVERNMENT TO THE

  DETRIMENT OF THE UNITED STATES. 

     "(D) DELIBERATE UNAUTHORIZED DISCLOSURE OF CLASSIFIED DEFENSE
INFORMATION. 

     "(E) MEMBERSHIP IN, OR AFFILIATION OR SYMPATHETIC ASSOCIATION

  WITH, ANY FOREIGN OR DOMESTIC ORGANIZATION, ASSOCIATION,

  MOVEMENT, GROUP, OR COMBINATION OF PERSONS DESIGNATED BY THE

  ATTORNEY GENERAL PURSUANT TO EXECUTIVE ORDER 10450, AS AMENDED." 

  33 CFR 121.03. 

IF WE ASSUME ARGUENDO THAT THE ACT AUTHORIZES A TYPE OF SCREENING
PROGRAM DIRECTED AT "MEMBERSHIP" OR "SYMPATHETIC ASSOCIATION," THE
PROBLEM RAISED BY IT AND THE REGULATIONS WOULD BE KIN TO THE ONE
PRESENTED IN SHELTON V. TUCKER, 364 U.S. 479, WHERE A TEACHER TO BE
HIRED BY A PUBLIC SCHOOL OF ARKANSAS HAD TO SUBMIT AN AFFIDAVIT
"LISTING ALL ORGANIZATIONS TO WHICH HE AT THE TIME BELONGS AND TO WHICH
HE HAS BELONGED DURING THE PAST FIVE YEARS."  ID., AT 481. 

WE HELD THAT AN ACT TOUCHING ON FIRST AMENDMENT RIGHTS MUST BE
NARROWLY DRAWN SO THAT THE PRECISE EVIL IS EXPOSED; THAT AN UNLIMITED
AND INDISCRIMINATE SEARCH OF THE EMPLOYEE'S PAST WHICH INTERFERES WITH
HIS ASSOCIATIONAL FREEDOM IS UNCONSTITUTIONAL.  ID., AT 487-490. 

IF WE GAVE SEC. 191(B) THE BROAD CONSTRUCTION THE SOLICITOR GENERAL
URGES, WE WOULD FACE HERE THE KIND OF ISSUE PRESENT IN SHELTON V.
TUCKER, SUPRA, WHETHER GOVERNMENT CAN PROBE THE READING HABITS,
POLITICAL PHILOSOPHY, BELIEFS, AND ATTITUDES ON SOCIAL AND ECONOMIC
ISSUES OF PROSPECTIVE SEAMEN ON OUR MERCHANT VESSELS. 

A SABOTEUR ON A MERCHANT VESSEL MAY, OF COURSE, BE DANGEROUS.  BUT
NO CHARGE THAT APPELLANT WAS A SABOTEUR WAS MADE.  INDEED, NO CONDUCT
OF APPELLANT WAS AT ISSUE BEFORE THE COMMANDANT.  THE PROPOSITIONS
TENDERED IN THE COMPLAINT WERE (1) PLAINTIFF IS NOW AND ALWAYS HAS BEEN
LOYAL TO THE UNITED STATES; (2) HE HAS NOT BEEN ACTIVE IN ANY
ORGANIZATION ON THE ATTORNEY GENERAL'S LIST FOR THE PAST 10 YEARS; (3)
HE HAS NEVER COMMITTED ANY ACT OF SABOTAGE OR ESPIONAGE OR ANY ACT
INIMICAL TO THE SECURITY OF THE UNITED STATES.  THOSE PROPOSITIONS WERE
NEITHER CONTESTED BY THE COMMANDANT NOR CONCEDED.  HE TOOK THE POSITION
THAT ADMISSION OF EVIDENCE ON THOSE PROPOSITIONS WAS "IRRELEVANT AND
IMMATERIAL." 

WE ARE LOATH TO CONCLUDE THAT CONGRESS, IN ITS GRANT OF AUTHORITY TO
THE PRESIDENT TO "SAFEGUARD" VESSELS AND WATERFRONT FACILITIES FROM
"SABOTAGE OR OTHER SUBVERSIVE ACTS," UNDERTOOK TO REACH INTO THE FIRST
AMENDMENT AREA.  THE PROVISION OF THE ACT IN QUESTION, 50 U.S.C.
191(B), SPEAKS ONLY IN TERMS OF ACTIONS, NOT IDEAS OR BELIEFS OR
READING HABITS OR SOCIAL, EDUCATIONAL, OR POLITICAL ASSOCIATIONS. 

THE PURPOSE OF THE CONSTITUTION AND BILL OF RIGHTS, UNLIKE MORE
RECENT MODELS PROMOTING A WELFARE STATE, WAS TO TAKE GOVERNMENT OFF THE
BACKS OF PEOPLE.  THE FIRST AMENDMENT'S BAN AGAINST CONGRESS
"ABRIDGING" FREEDOM OF SPEECH, THE RIGHT PEACEABLY TO ASSEMBLE AND TO
PETITION, AND THE "ASSOCIATIONAL FREEDOM" (SHELTON V. TUCKER, SUPRA, AT
490) THAT GOES WITH THOSE RIGHTS CREATE A PRESERVE WHERE THE VIEWS OF
THE INDIVIDUAL ARE MADE INVIOLATE.  THIS IS THE PHILOSOPHY OF JEFFERSON
THAT "THE OPINIONS OF MEN ARE NOT THE OBJECT OF CIVIL GOVERNMENT, NOR
UNDER ITS JURISDICTION.  . . . (IT IS TIME ENOUGH FOR THE RIGHTFUL
PURPOSES OF CIVIL GOVERNMENT FOR ITS OFFICERS TO INTERFERE WHEN
PRINCIPLES BREAK OUT INTO OVERT ACTS AGAINST PEACE AND GOOD ORDER.  . .
. "  /4/ 

NO ACT OF SABOTAGE OR ESPIONAGE OR ANY ACT INIMICAL TO THE SECURITY
OF THE UNITED STATES IS RAISED OR CHARGED IN THE PRESENT CASE. 

IN UNITED STATES V. RUMELY, 345 U.S. 41, THE COURT CONSTRUED THE
STATUTORY WORD "LOBBYING" TO INCLUDE ONLY DIRECT REPRESENTATION TO
CONGRESS, ITS MEMBERS, AND ITS COMMITTEES, NOT ALL ACTIVITIES TENDING
TO INFLUENCE, ENCOURAGE, PROMOTE, OR RETARD LEGISLATION.  ID., AT 47. 
SUCH AN INTERPRETATION OF THE STATUTE, IT WAS SIAD, WAS "IN THE CANDID
SERVICE OF AVOIDING A SERIOUS CONSTITUTIONAL DOUBT" (IBID.)-- DOUBTS
THAT WERE SERIOUS "IN VIEW OF THE PROHIBITION OF THE FIRST AMENDMENT." 
ID., AT 46. 

THE HOLDING IN RUMELY WAS NOT NOVEL.  IT IS PART OF THE STREAM OF
AUTHORITY WHICH ADMONISHES COURTS TO CONSTRUE STATUTES NARROWLY SO AS
TO AVOID CONSTITUTIONAL QUESTIONS.  /5/ 

THE COURT SAID IN RUMELY, "WHENEVER CONSTITUTIONAL LIMITS UPON THE
INVESTIGATIVE POWER OF CONGRESS HAVE TO BE DRAWN BY THIS COURT, IT
OUGHT ONLY TO BE DONE AFTER CONGRESS HAS DEMONSTRATED ITS FULL
AWARENESS OF WHAT IS AT STAKE BY UNEQUIVOCALLY AUTHORIZING AN INQUIRY
OF DUBIOUS LIMITS.  EXPERIENCE ADMONISHES US TO TREAD WARILY IN THIS
DOMAIN."  345 U.S.,AT 46; 

THE PRESENT CASE INVOLVES INVESTIGATION, NOT BY CONGRESS BUT BY THE
EXECUTIVE BRANCH, STEMMING FROM CONGRESSIONAL DELEGATION.  WHEN WE READ
THAT DELEGATION WITH AN EYE TO FIRST AMENDMENT PROBLEMS, WE HESITATE TO
CONCLUDE THAT CONGRESS TOLD THE EXECUTIVE TO FERRET OUT THE IDEOLOGICAL
STRAYS IN THE MARITIME INDUSTRY.  THE WORDS IT USED-- "TO SAFEGUARD . .
. FROM SABOTAGE OR OTHER SUBVERSIVE ACTS"-- REFER TO ACTIONS, NOT TO
IDEAS OF BELIEFS.  WE WOULD HAVE TO STRETCH THOSE WORDS BEYOND THEIR
NORMAL MEANING TO GIVE THEM THE MEANING THE SOLICITOR GENERAL URGES. 
RUMELY, AND ITS ALLIED CASES, TEACH JUST THE OPPOSITE-- THAT STATUTORY
WORDS ARE TO BE READ NARROWLY SO AS TO AVOID QUESTIONS CONCERNING THE
"ASSOCIATIONAL FREEDOM" THAT SHELTON V. TUCKER PROTECTED AND CONCERNING
OTHER RIGHTS WITHIN THE PURVIEW OF THE FIRST AMENDMENT. 

              REVERSED. 

/1/  SECTION 191 PROVIDES IN PART: 

"WHENEVER THE PRESIDENT FINDS THAT THE SECURITY OF THE UNITED STATES
IS ENDANGERED BY REASON OF ACTUAL OR THREATENED WAR, OR INVASION, OR
INSURRECTION, OR SUBVERSIVE ACTIVITY, OR OF DISTRUBANCES OR THREATENED
DISTURBANCES OF THE INTERNATIONAL RELATIONS OF THE UNITED STATES, THE
PRESIDENT IS AUTHORIZED TO INSTITUTE SUCH MEANSURES AND ISSUE SUCH
RULES AND REGULATIONS-- 

"(A) TO GOVERN THE ANCHORAGE AND MOVEMENT OF ANY FOREIGN-FLAG
VESSELS IN THE TERRITORIAL WATERS OF THE UNITED STATES, TO INSPECT SUCH
VESSELS AT ANY TIME, TO PLACE GUARDS THEREON, AND, IF NECESSARY IN HIS
OPINION IN ORDER TO SECURE SUCH VESSELS FROM DAMAGE OR INJURY, OR TO
PREVENT DAMAGE OR INJURY TO ANY HARBOR OR WATERS OF THE UNITED STATES,
OR TO SECURE THE OBSERVANCE OF RIGHTS AND OBLIGATIONS OF THE UNITED
STATES, MAY TAKE FOR SUCH PURPOSES FULL POSSESSION AND CONTROL OF SUCH
VESSELS AND REMOVE THEREFROM THE OFFICERS AND CREW THEREOF, AND ALL
OTHER PERSONS NOT ESPECIALLY AUTHORIZED BY HIM TO GO OR REMAIN ON BOARD
THEREOF;     "(B) TO SAFEGUARD AGAINST DESTRUCTION, LOSS, OR INJURY
FROM SABOTAGE OR OTHER SUBVERSIVE ACTS, ACCIDENTS, OR OTHER CAUSES OF
SIMILAR NATURE, VESSELS, HARBORS, PORTS, AND WATERFRONT FACILITIES IN
THE UNITED STATES, THE CANAL ZONE, AND ALL TERRITORY AND WATER,
CONTINENTAL OR INSULAR, SUBJECT TO THE JURISDICTION OF THE UNITED
STATES." 

/2/  "1.  WITH RESPECT TO YOUR STATEMENTS ABOVE, FURNISH THE
FOLLOWING INFORMATION, FULLY AND HONESTLY TO THE BEST OF YOUR ABILITY: 

"(A) LIST THE NAMES OF THE POLITICAL AND SOCIAL ORGANIZATIONS TO
WHICH YOU BELONGED, AND LOCATION.     "(B) FURNISH APPROXIMATE DATES OF
MEMBERSHIP. 

"(C) FURNISH FULL PARTICULARS CONCERNING THE EXTENT OF YOUR
ACTIVITIES AND PARTICIPATION IN THE ORGANIZATIONS (NUMBER AND TYPE OF
MEETINGS/FUNCTIONS ATTENDED; POSITIONS OR OFFICES HELD; CLASSES OR
SCHOOLS ATTENDED; CONTRIBUTIONS MADE; ETC.). 

"(D) YOUR REASON FOR DISCONTINUING THE MEMBERSHIP. 

"(E) YOUR PRESENT ATTITUDE TOWARD THE PRINCIPLES AND OBJECTIVES OF
THE ORGANIZATIONS. 

"IF YOUR ANSWER IS 'YES' TO THE FOLLOWING QUESTIONS, EXPLAIN FULLY
IN THE SPACE PROVIDED AT THE END OF THE INTERROGATORIES: 

"2.  ARE YOU NOW, OR HAVE YOU EVER BEEN, A MEMBER OF OR AFFILIATED
WITH, IN ANY WAY, THE COMMUNIST PARTY, ITS SUBDIVISIONS, SUBSIDIARIES,
OR AFFILIATES? 

" . . . 

(ANSWER 'YES' OR 'NO.') 

"3.  HAVE YOU AT ANY TIME BEEN A SUBSCRIBER TO THE 'PEOPLE'S
WORLD'? 

" . . . IF YOUR ANSWER IS 'YES,' GIVE DATES. 

        (ANSWER 'YES' OR 'NO.') 

4.  "HAVE YOU AT ANY TIME ENGAGED IN ANY ACTIVITIES IN BEHALF OF THE
THE 'PEOPLE'S WORLD'?  . . .

        (ANSWER 'YES' OR 'NO.') 

"IF YOUR ANSWER IS 'YES,' FURNISH DETAILS. 

"5.  WHAT IS YOUR PRESENT ATTITUDE TOWARD THE COMMUNIST PARTY? 

"6.  WHAT IS YOUR PRESENT ATTITUDE TOWARD THE PRINCIPLES AND
OBJECTIVES OF COMMUNISM? 

"7.  WHAT IS YOUR ATTITUDE TOWARD THE FORM OF GOVERNMENT IN THE
UNITED STATES?" 

/3/  IT IS TRUE THAT SENATOR MAGNUSON WHEN DISCUSSING THIS MEASURE
STATED THAT IT "WILL GIVE THE PRESIDENT THE AUTHORITY TO INVOKE THE
SAME KIND OF SECURITY MEASURES WHICH WERE INVOKED IN WORLD WAR I AND IN
WORLD WAR II."  96 CONG.REC.  10795.  AND FROM THAT THE SOLICITOR
GENERAL ARGUES THAT THE ACT AUTHORIZES THE BROAD SWEEPING PERSONNEL
SCREENING PROGRAMS WHICH WERE IN FORCE DURING WORLD WAR II. 

BUT THIS REFERENCE BY SENATOR MAGNUSON APPARENTLY WAS TO SEC. 191(A)
WHICH, AS NOTED, COVERS "ANY FOREIGN-FLAG VESSELS."  WHEN IT CAME TO
SEC. 191(B) SENATOR MAGNUSON DID NOT SPEAK IN TERMS OF ANY SCREENING
PROGRAM, BUT SAID: 

"IT (THE BILL) ALSO HAS THIS PURPOSE, WHICH I THINK IS A GOOD ONE:
AS I HAVE SAID BEFORE, THE LAST STRONGHOLD OF SUBVERSIVE ACTIVITY IN
THIS COUNTRY, IN MY OPINION, OR AT LEAST THE LAST CONCENTRATED
STRONGHOLD, HAS BEEN AROUND OUR WATERFRONTS.  IT WOULD BE IMPOSSIBLE
FOR DESTRUCTION TO COME TO ANY GREAT PORT OF THE UNITED STATES, OF
WHICH THERE ARE MANY, AS THE RESULT OF A SHIP COMING INTO PORT WITH AN
ATOMIC BOMB OR WITH BIOLOGICAL OR OTHER DESTRUCTIVE AGENCY, WITHOUT
SOME LIAISON ASHORE.  THIS WOULD GIVE AUTHORITY TO THE PRESIDENT TO
INSTRUCT THE FBI, IN COOPERATION WITH THE COAST GUARD, THE NAVY, OR ANY
OTHER APPROPRIATE GOVERNMENTAL AGENCY, TO GO TO OUR WATER FRONTS AND
PICK OUT PEOPLE WHO MIGHT BE SUBVERSIVES OR SECURITY RISKS TO THIS
COUNTRY.  I THINK IT GOES A LONG WAY TOWARD TAKING CARE OF THE DOMESTIC
SITUATION, AS RELATED TO THIS SUBJECT, PARTICULARLY IN VIEW OF THE
LARGE AMOUNT OF TALK WE HAVE HAD IN THE SENATE WITHIN THE PAST FEW DAYS
ABOUT COMMUNISTS.  THE BILL ALSO PROTECTS THAT LAST LOOPHOLE WHICH IS
LEFT, BY WHICH THERE MIGHT BE SOME ACTUAL DESTRUCTION ALONG THE SHORES
OF THE UNITED STATES."  96 CONG.REC.  11321. 

/4/  A BILL FOR ESTABLISHING RELIGIOUS FREEDOM, JEFFERSONIAN
CYCLOPEDIA 976 (1900). 

/5/  UNITED STATES V. DELAWARE & H. CO., 213 U.S. 366, 407-408;
UNITED STATES V. HARRISS, 347 U.S. 612, 618, N. 6; INTERNATIONAL
MACHINISTS V. STREET, 367 U.S. 740, 749; LYNCH V. OVERHOLSER, 369 U.S.
705, 710-711; UNITED STATES V. NATIONAL DAIRY CORP., 372 U.S. 29, 32. 

MR. JUSTICE BLACK, WHILE CONCURRING IN THE COURT'S JUDGMENT AND
OPINION, ALSO AGREES WITH THE STATEMENT IN MR. JUSTICE FORTAS'
CONCURRING OPINION THAT THE STATUTE UNDER CONSIDERATION, IF CONSTRUED
TO AUTHORIZE THE INTERROGATORIES INVOLVED, IS OFFENSIVE TO THE FIRST
AMENDMENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE FORTAS, CONCURRING. 

I CONCUR IN THE OPINION OF THE COURT.  REVERSAL IS DICTATED BECAUSE
THE INTERROGATORIES WHICH PETITIONER REFUSED TO ANSWER OFFEND THE FIRST
AMENDMENT.  SHELTON V. TUCKER, 364 U.S. 479 (1960).  (THEY ALSO PASS
THE OUTERMOST BOUNDS OF REASON.  NO AGENCY MAY BE PERMITTED TO REQUIRE
OF A PERSON, SUBJECT TO HEAVY PENALTY, SWORN ESSAYS AS TO HIS "ATTITUDE
TOWARD THE FORM OF GOVERNMENT IN THE UNITED STATES" OR "FULL
PARTICULARS" UNDER OATH, WITHOUT TIME LIMIT, AS TO CONTRIBUTIONS MADE
AND FUNCTIONS ATTENDED WITH RESPECT TO 250 ORGANIZATIONS.)  I AGREE
THAT SINCE CONGRESS DID NOT SPECIFICALLY AUTHORIZE A PERSONNEL
SCREENING PROGRAM, AUTHORITY TO IMPOSE PROCEDURES OF THE COMPREHENSIVE
TYPE HERE INVOLVED, NECESSARILY IMPINGING ON FIRST AMENDMENT FREEDOMS,
MAY NOT BE INFERRED FROM DUBIOUS GENERAL LANGUAGE.  THE FAULT, HOWEVER,
IS NOT THAT THERE WAS AN INADEQUATE OR IMPROPER DELEGATION, BUT THAT
CONGRESS DID NOT AUTHORIZE THE TYPE OF INVESTIGATION WHICH WAS
LAUNCHED.  NEEDLESS TO SAY, CONGRESS HAS CONSTITUTIONAL POWER TO
AUTHORIZE AN APPROPRIATE PERSONNEL SCREENING PROGRAM AND TO DELEGATE TO
EXECUTIVE OFFICIALS THE POWER TO IMPLEMENT AND ADMINISTER IT. SEE
UNITED STATES V. ROBEL, 389 U.S. 258 (1967). 

MR. JUSTICE STEWART, AGREEING WITH THE SEPARATE VIEWS OF MR. JUSTICE
FORTAS, CONCURS IN THE JUDGMENT. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN JOINS, CONCURRING IN
THE RESULT. 

I AGREE WITH THE COURT THAT THE MAGNUSON ACT DID NOT AUTHORIZE THE
INQUIRY UNDERTAKEN BY THE COAST GUARD COMMANDANT AND THAT THEREFORE THE
JUDGMENT OF THE DISTRICT COURT MUST BE REVERSED.  I EXPRESS NO OPINION
AS TO THE SCOPE OF INQUIRY WHICH CONGRESS COULD CONSTITUTIONALLY
PROVIDE WITH RESPECT TO APPLICANTS FOR THE POSITION OF MERCHANT
SEAMAN. 

LEONARD W. SCHROETER AND JOHN CAUGHLAN ARGUED THE CAUSE AND FILED A
BRIEF FOR APPELLANT. 

JOHN S. MARTIN, JR., ARGUED THE CAUSE FOR APPELLEE.  WITH HIM ON THE
BRIEF WERE SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL
YEAGLEY, KEVIN T. MARONEY AND LEE B. ANDERSON. 
..END :





















ZSCHERNIG V. MILLER 389 U.S. 429 


NO. 21.  ARGUED NOVEMBER 7, 1967.  - DECIDED JANUARY 15, 1968.  - 243
ORE.  567, 592, 412 P.2D 781, 415 P.2D 15, REVERSED. 


APPELLANTS, RESIDENTS OF EAST GERMANY, ARE THE HEIRS OF AN AMERICAN
CITIZEN WHO DIED INTESTATE IN OREGON, LEAVING PERSONAL PROPERTY. 
APPELLEES INCLUDE MEMBERS OF THE STATE LAND BOARD WHO PETITIONED THE
OREGON PROBATE COURT FOR THE ESCHEAT OF THE PERSONALTY PURSUANT TO
ORE.  REV.  STAT. SEC 111.070.  THAT SECTION PROVIDES FOR ESCHEAT WHERE
A NONRESIDENT ALIEN CLAIMS PERSONALTY UNLESS (1) THERE IS A RECIPROCAL
RIGHT OF A UNITED STATES CITIZEN TO TAKE PROPERTY ON THE SAME TERMS AS
THE CITIZEN OF A FOREIGN NATION, (2) AMERICAN CITIZENS HAVE THE RIGHT
TO RECEIVE PAYMENT HERE OF FUNDS FROM ESTATES IN THE FOREIGN COUNTRY,
AND (3) FOREIGN HEIRS HAVE THE RIGHT TO RECEIVE THE PROCEEDS OF OREGON
ESTATES WITHOUT CONFISCATION.  THE OREGON SUPREME COURT HELD THAT
APPELLANTS COULD NOT TAKE THE PERSONALTY, BECAUSE THE RECIPROCITY
REQUIRED BY SEC 111.070 WAS NOT PRESENT.  HELD:  AS APPLIED BY OREGON,
EACH OF THE THREE PROVISIONS OF SEC 111.070 INVOLVES THE STATE IN
FOREIGN AFFAIRS AND INTERNATIONAL RELATIONS, MATTERS WHICH THE
CONSTITUTION ENTRUSTS SOLELY TO THE FEDERAL GOVERNMENT.  CLARK V.
ALLEN, 331 U.S. 503, DISTINGUISHED.  PP. 432-441. 

ZSCHERNIG ET AL. V. MILLER, ADMINISTRATOR, ET AL. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE DISPOSITION OF THE ESTATE OF A RESIDENT OF
OREGON WHO DIED THERE INTESTATE IN 1962.  APPELLANTS ARE DECEDENT'S
SOLE HEIRS AND THEY ARE RESIDENTS OF EAST GERMANY.  APPELLEES INCLUDE
MEMBERS OF THE STATE LAND BOARD THAT PETITIONED THE OREGON PROBATE
COURT FOR THE ESCHEAT OF THE NET PROCEEDS OF THE ESTATE UNDER THE
PROVISIONS OF ORE.  REV.  STAT. SEC. 111.070 (1957), (FN1) WHICH
PROVIDES FOR ESCHEAT IN CASES WHERE A NONRESIDENT ALIEN CLAIMS REAL OR
PERSONAL PROPERTY UNLESS THREE REQUIREMENTS ARE SATISFIED: 

(1)  THE EXISTENCE OF A RECIPROCAL RIGHT OF A UNITED STATES CITIZEN
TO TAKE PROPERTY ON THE SAME TERMS AS A CITIZEN OR INHABITANT OF THE
FOREIGN COUNTRY. 

(2)  THE RIGHT OF UNITED STATES CITIZENS TO RECEIVE PAYMENT HERE OF
FUNDS FROM ESTATES IN THE FOREIGN COUNTRY; AND. 

(3)  THE RIGHT OF THE FOREIGN HEIRS TO RECEIVE THE PROCEEDS OF OREGON
ESTATES "WITHOUT CONFISCATION." 

THE OREGON SUPREME COURT HELD THAT THE APPELLANTS COULD TAKE THE
OREGON REALTY INVOLVED IN THE PRESENT CASE BY REASON OF ARTICLE IV OF
THE 1923 TREATY OF FRIENDSHIP, COMMERCE AND CONSULAR RIGHTS WITH
GERMANY (FN2) (44 STAT. 2135) BUT THAT BY REASON OF THE SAME ARTICLE,
AS CONSTRUED IN CLARK V. ALLEN, 331 U.S. 503, THEY COULD NOT TAKE THE
PERSONALTY.  243 ORE.  567, 592, 412 P.2D 781, 415 P.2D 15.  WE NOTED
PROBABLE JURISDICTION.  386 U.S. 1030. 

THE DEPARTMENT OF JUSTICE, APPEARING AS AMICUS CURIAE, SUBMITS THAT,
ALTHOUGH THE 1923 TREATY IS STILL IN FORCE, CLARK V. ALLEN SHOULD BE
OVERRULED INSOFAR AS IT CONSTRUED THE PERSONALTY PROVISION OF ARTICLE
IV.  THAT PORTION OF ARTICLE IV SPEAKS OF THE RIGHT OF "NATIONALS OF
EITHER HIGH CONTRACTING PARTY" TO DISPOSE OF "THEIR PERSONAL PROPERTY
OF EVERY KIND WITHIN THE TERRITORIES OF THE OTHER."  THAT LITERAL
LANGUAGE AND ITS LONG CONSISTENT CONSTRUCTION, WE HELD IN CLARK V.
ALLEN, "DOES NOT COVER PERSONALTY LOCATED IN THIS COUNTRY AND WHICH AN
AMERICAN CITIZEN UNDERTAKES TO LEAVE TO GERMAN NATIONALS."  331 U.S.,
AT 516. 

WE DO NOT ACCEPT THE INVITATION TO RE-EXAMINE OUR RULING IN CLARK V.
ALLEN.  FOR WE CONCLUDE THAT THE HISTORY AND OPERATION OF THIS OREGON
STATUTE MAKE CLEAR THAT SEC 111.070 IS AN INTRUSION BY THE STATE INTO
THE FIELD OF FOREIGN AFFAIRS WHICH THE CONSTITUTION ENTRUSTS TO THE
PRESIDENT AND THE CONGRESS.  SEE HINES V. DAVIDOWITZ, 312 U.S. 52, 63. 

AS ALREADY NOTED (FN3) ONE OF THE CONDITIONS OF INHERITANCE UNDER THE
OREGON STATUTE REQUIRES "PROOF THAT SUCH FOREIGN HEIRS, DISTRIBUTEES,
DEVISEES OR LEGATEES MAY RECEIVE THE BENEFIT, USE OR CONTROL OF MONEY
OR PROPERTY FROM ESTATES OF PERSONS DYING IN THIS STATE WITHOUT
CONFISCATION, IN WHOLE OR IN PART, BY THE GOVERNMENTS OF SUCH FOREIGN
COUNTRIES," THE BURDEN BEING ON THE NONRESIDENT ALIEN TO ESTABLISH THAT
FACT. 

THIS PROVISION CAME INTO OREGON'S LAW IN 1951.  PRIOR TO THAT TIME
THE RIGHTS OF ALIENS UNDER THE OREGON STATUTE WERE DEFINED IN GENERAL
TERMS OF RECIPROCITY, (FN4) SIMILAR TO THE CALIFORNIA ACT WHICH WE HAD
BEFORE US IN CLARK V. ALLEN, 331 U.S., AT 506, N. 1. 

WE HELD IN CLARK V. ALLEN THAT A GENERAL RECIPROCITY CLAUSE DID NOT
ON ITS FACE INTRUDE ON THE FEDERAL DOMAIN.  331 U.S., AT 516-517.  WE
NOTED THAT THE CALIFORNIA STATUTE, THEN A RECENT ENACTMENT, WOULD HAVE
ONLY "SOME INCIDENTAL OR INDIRECT EFFECT IN FOREIGN COUNTRIES."  ID.,
AT 517.  (FN5) 

HAD THAT CASE APPEARED IN THE POSTURE OF THE PRESENT ONE, A DIFFERENT
RESULT WOULD HAVE OBTAINED.  WE WERE THERE CONCERNED WITH THE WORDS OF
A STATUTE ON ITS FACE, NOT THE MANNER OF ITS APPLICATION.  STATE
COURTS, OF COURSE, MUST FREQUENTLY READ, CONSTRUE, AND APPLY LAWS OF
FOREIGN NATIONS.  IT HAS NEVER BEEN SERIOUSLY SUGGESTED THAT STATE
COURTS ARE PRECLUDED FROM PERFORMING THAT FUNCTION, ALBEIT THERE IS A
REMOTE POSSIBILITY THAT ANY HOLDING MAY DISTURB A FOREIGN NATION -
WHETHER THE MATTER INVOLVES COMMERCIAL CASES, TORT CASES, OR SOME OTHER
TYPE OF CONTROVERSY.  AT THE TIME CLARK V. ALLEN WAS DECIDED, THE CASE
SEEMED TO INVOLVE NO MORE THAN A ROUTINE READING OF FOREIGN LAWS.  IT
NOW APPEARS THAT IN THIS RECIPROCITY AREA UNDER INHERITANCE STATUTES,
THE PROBATE COURTS OF VARIOUS STATES HAVE LAUNCHED INQUIRIES INTO THE
TYPE OF GOVERNMENTS THAT OBTAIN IN PARTICULAR FOREIGN NATIONS - WHETHER
ALIENS UNDER THEIR LAW HAVE ENFORCEABLE RIGHTS, WHETHER THE SO-CALLED
"RIGHTS" ARE MERELY DISPENSATIONS TURNING UPON THE WHIM OR CAPRICE OF
GOVERNMENT OFFICIALS, WHETHER THE REPRESENTATION OF CONSULS,
AMBASSADORS, AND OTHER REPRESENTATIVES OF FOREIGN NATIONS IS CREDIBLE
OR MADE IN GOOD FAITH, WHETHER THERE IS IN THE ACTUAL ADMINISTRATION IN
THE PARTICULAR FOREIGN SYSTEM OF LAW ANY ELEMENT OF CONFISCATION. 

IN A CALIFORNIA CASE, INVOLVING A RECIPROCITY PROVISION, THE UNITED
STATES MADE THE FOLLOWING REPRESENTATION: 

"THE OPERATION AND EFFECT OF THE STATUTE IS INEXTRICABLY ENMESHED IN
INTERNATIONAL AFFAIRS AND MATTERS OF FOREIGN POLICY.  THE STATUTE DOES
NOT WORK DISINHERITANCE OF, OR AFFECT OWNERSHIP OF PROPERTY IN
CALIFORNIA BY, ANY GROUP OR CLASS, BUT ON THE CONTRARY OPERATES IN
FIELDS EXCLUSIVELY FOR, AND PREEMPTED BY, THE UNITED STATES; NAMELY,
THE CONTROL OF THE INTERNATIONAL TRANSMISSION OF PROPERTY, FUNDS, AND
CREDITS, AND THE CAPTURE OF ENEMY PROPERTY.  THE STATUTE IS NOT AN
INHERITANCE STATUTE, BUT A STATUTE OF CONFISCATION AND RETALIATION." 
IN RE BEVILACQUA'S ESTATE, 161 P.2D 589, 593 (DIST.  CT. APP. CAL.),
SUPERSEDED BY 31 CAL. 2D 580, 191 P.2D 752. 

IN ITS BRIEF AMICUS CURIAE, THE DEPARTMENT OF JUSTICE STATES THAT:
"THE GOVERNMENT DOES NOT  ... CONTEND THAT THE APPLICATION OF THE
OREGON ESCHEAT STATUTE IN THE CIRCUMSTANCES OF THIS CASE UNDULY
INTERFERES WITH THE UNITED STATES' CONDUCT OF FOREIGN RELATIONS." 

THE GOVERNMENT'S ACQUIESCENCE IN THE RULING OF CLARK V. ALLEN
CERTAINLY DOES NOT JUSTIFY EXTENDING THE PRINCIPLE OF THAT CASE, AS WE
WOULD BE REQUIRED TO DO HERE TO UPHOLD THE OREGON STATUTE AS APPLIED;
FOR IT HAS MORE THAN "SOME INCIDENTAL OR INDIRECT EFFECT IN FOREIGN
COUNTRIES," AND ITS GREAT POTENTIAL FOR DISRUPTION OR EMBARRASSMENT
MAKES US HESITATE TO PLACE IT IN THE CATEGORY OF A DIPLOMATIC
BAGATELLE. 

AS WE READ THE DECISIONS THAT FOLLOWED IN THE WAKE OF CLARK V. ALLEN,
WE FIND THAT THEY RADIATE SOME OF THE ATTITUDES OF THE "COLD WAR,"
WHERE THE SEARCH IS FOR THE "DEMOCRACY QUOTIENT" OF A FOREIGN REGIME AS
OPPOSED TO THE MARXIST THEORY.  (FN6)  THE OREGON STATUTE INTRODUCES
THE CONCEPT OF "CONFISCATION," WHICH IS OF COURSE OPPOSED TO THE JUST
COMPENSATION CLAUSE OF THE FIFTH AMENDMENT.  AND THIS HAS LED INTO
MINUTE INQUIRIES CONCERNING THE ACTUAL ADMINISTRATION OF FOREIGN LAW,
INTO THE CREDIBILITY OF FOREIGN DIPLOMATIC STATEMENTS, AND INTO
SPECULATION WHETHER THE FACT THAT SOME RECEIVED DELIVERY OF FUNDS
SHOULD "NOT PRECLUDE WONDERMENT AS TO HOW MANY MAY HAVE BEEN DENIED
'THE RIGHT TO RECEIVE'  ...  ."  SEE STATE LAND BOARD V. KOLOVRAT, 220
ORE.  448, 461-462, 349 P.2D 255, 262, REV'D SUB NOM. KOLOVRAT V.
OREGON, 366 U.S. 187, ON OTHER GROUNDS. 

THAT KIND OF STATE INVOLVEMENT IN FOREIGN AFFAIRS AND INTERNATIONAL
RELATIONS - MATTERS WHICH THE CONSTITUTION ENTRUSTS SOLELY TO THE
FEDERAL GOVERNMENT - IS NOT SANCTIONED BY CLARK V. ALLEN.  YET SUCH
FORBIDDEN STATE ACTIVITY HAS INFECTED EACH OF THE THREE PROVISIONS OF
SEC 111.070, AS APPLIED BY OREGON. 

IN STATE LAND BOARD V. PEKAREK, 234 ORE.  74, 378 P.2D 734, THE
OREGON SUPREME COURT IN RULING AGAINST A CZECH CLAIMANT BECAUSE HE HAD
FAILED TO PROVE THE "BENEFIT" REQUIREMENT OF SUBSECTION (1)(C) OF THE
STATUTE SAID: 

"ASSUMING, WITHOUT DECIDING, THAT ALL OF THE EVIDENCE OFFERED BY THE
LEGATEES WAS ADMISSIBLE, IT CAN BE GIVEN RELATIVELY LITTLE WEIGHT.  THE
STATEMENTS OF CZECHOSLOVAKIAN OFFICIALS MUST BE JUDGED IN LIGHT OF THE
INTEREST WHICH THEY HAD IN THE ACQUISITION OF FUNDS FOR THEIR
GOVERNMENT.  MOREOVER, IN JUDGING THE CREDIBILITY OF THESE WITNESSES WE
ARE ENTITLED TO TAKE INTO CONSIDERATION THE FACT THAT DECLARATIONS OF
GOVERNMENT OFFICIALS IN COMMUNIST-CONTROLLED COUNTRIES AS TO THE STATE
OF AFFAIRS EXISTING WITHIN THEIR BORDERS DO NOT ALWAYS COMPORT WITH THE
ACTUAL FACTS."  ID., AT 83, 378 P.2D, AT 738. 

YET IN STATE LAND BOARD V. SCHWABE, 240 ORE.  82, 400 P.2D 10, WHERE
THE CERTIFICATE OF THE POLISH AMBASSADOR WAS TENDERED AGAINST THE CLAIM
THAT THE INHERITANCE WOULD BE CONFISCATED ABROAD, THE OREGON COURT,
APPRAISING THE CURRENT ATTITUDE OF WASHINGTON, D.C., TOWARD WARSAW,
ACCEPTED THE CERTIFICATE AS TRUE.  ID., AT 84, 400 P.2D, AT 11. 

IN STATE LAND BOARD V. ROGERS, 219 ORE.  233, 347 P.2D 57, THE COURT
HELD BULGARIAN HEIRS HAD FAILED TO PROVE THE REQUIREMENT OF WHAT IS NOW
SEC (1)(B) OF THE RECIPROCITY STATUTE, THE "RIGHT" OF AMERICAN HEIRS OF
BULGARIAN DECEDENTS TO GET FUNDS OUT OF BULGARIA INTO THE UNITED
STATES.  SUCH TRANSMISSION OF FUNDS REQUIRED A LICENSE FROM THE
BULGARIAN NATIONAL BANK, BUT THE COURT HELD THE FACT THAT LICENSES WERE
REGULARLY GIVEN INSUFFICIENT, BECAUSE THEY WERE ISSUED ONLY AT THE
DISCRETION OR "WHIM" OF THE BANK.  ID., AT 245, 347 P.2D, AT 63. 
(FN7) 

AS ONE READS THE OREGON DECISIONS, IT SEEMS THAT FOREIGN POLICY
ATTITUDES, THE FREEZING OR THAWING OF THE "COLD WAR," AND THE LIKE ARE
THE REAL DESIDERATA.  (FN8)  YET THEY OF COURSE ARE MATTERS FOR THE
FEDERAL GOVERNMENT, NOT FOR LOCAL PROBATE COURTS. 

THIS IS AS TRUE OF (1)(A) OF SEC 111.070 AS IT IS OF (1)(B) AND
(1)(C).  IN CLOSTERMANN V. SCHMIDT, 215 ORE.  55, 332 P.2D 1036, THE
COURT - APPLYING THE PREDECESSOR OF (1)(A) - HELD THAT NOT ONLY MUST
THE FOREIGN LAW GIVE INHERITANCE RIGHTS TO AMERICANS, BUT THE POLITICAL
BODY MAKING THE LAW MUST HAVE "MEMBERSHIP IN THE FAMILY OF NATIONS"
(ID., AT 65, 332 P.2D, AT 1041), BECAUSE THE PURPOSE OF THE OREGON
PROVISION WAS TO SERVE AS "AN INDUCEMENT TO FOREIGN NATIONS TO SO FRAME
THE INHERITANCE LAWS OF THEIR RESPECTIVE COUNTRIES IN A MANNER WHICH
WOULD INSURE TO OREGONIANS THE SAME OPPORTUNITIES TO INHERIT AND TAKE
PERSONAL PROPERTY ABROAD THAT THEY ENJOY IN THE STATE OF OREGON."  ID.,
AT 68, 332 P.2D, AT 1042. 

IN IN RE ESTATE OF KRACHLER, 199 ORE.  448, 263 P.2D 769, THE COURT
OBSERVED THAT THE PHRASE "RECIPROCAL RIGHT" IN WHAT IS NOW PART (1)(A)
MEANT A CLAIM "THAT IS ENFORCEABLE BY LAW."  ID., AT 455, 263 P.2D, AT
773.  ALTHOUGH CERTAIN PROVISIONS OF THE WRITTEN LAW OF NAZI GERMANY
APPEARED TO PERMIT AMERICANS TO INHERIT, THEY CREATED NO "RIGHT," SINCE
HITLER HAD ABSOLUTE DICTATORIAL POWERS AND COULD PRESCRIBE TO GERMAN
COURTS RULES AND PROCEDURES AT VARIANCE WITH THE GENERAL LAW.  BEQUESTS
"'GROSSLY OPPOSED TO SOUND SENTIMENT OF THE PEOPLE'" WOULD NOT BE GIVEN
EFFECT.  ID., AT 503, 263 P.2D, AT 794.  (FN9) 

IN SHORT, IT WOULD SEEM THAT OREGON JUDGES IN CONSTRUING SEC 111.070
SEEK TO ASCERTAIN WHETHER "RIGHTS" PROTECTED BY FOREIGN LAW ARE THE
SAME "RIGHTS" THAT CITIZENS OF OREGON ENJOY.  IF, AS IN THE ROGERS
CASE, THE ALLEGED FOREIGN "RIGHT" MAY BE VINDICATED ONLY THROUGH
COMMUNIST-CONTROLLED STATE AGENCIES, THEN THERE IS NO "RIGHT" OF THE
TYPE SEC 111.070 REQUIRES.  THE SAME SEEMS TO BE TRUE IF ENFORCEMENT
MAY REQUIRE APPROVAL OF A FASCIST DICTATOR, AS IN KRACHLER.  THE
STATUTE AS CONSTRUED SEEMS TO MAKE UNAVOIDABLE JUDICIAL CRITICISM OF
NATIONS ESTABLISHED ON A MORE AUTHORITARIAN BASIS THAN OUR OWN. 

IT SEEMS INESCAPABLE THAT THE TYPE OF PROBATE LAW THAT OREGON
ENFORCES AFFECTS INTERNATIONAL RELATIONS IN A PERSISTENT AND SUBTLE
WAY.  THE PRACTICE OF STATE COURTS IN WITHHOLDING REMITTANCES TO
LEGATEES RESIDING IN COMMUNIST COUNTRIES OR IN PREVENTING THEM FROM
ASSIGNING THEM IS NOTORIOUS.  (FN10)  THE SEVERAL STATES, OF COURSE,
HAVE TRADITIONALLY REGULATED THE DESCENT AND DISTRIBUTION OF ESTATES. 
BUT THOSE REGULATIONS MUST GIVE WAY IF THEY IMPAIR THE EFFECTIVE
EXERCISE OF THE NATION'S FOREIGN POLICY.  SEE MILLER, THE CORPORATION
AS A PRIVATE GOVERNMENT IN THE WORLD COMMUNITY, 46 VA. L. REV. 1539,
1542-1549 (1960).  WHERE THOSE LAWS CONFLICT WITH A TREATY, THEY MUST
BOW TO THE SUPERIOR FEDERAL POLICY.  SEE KOLOVRAT V. OREGON, 366 U.S.
187.  YET, EVEN IN ABSENCE OF A TREATY, A STATE'S POLICY MAY DISTURB
FOREIGN RELATIONS.  AS WE STATED IN HINES V. DAVIDOWITZ, SUPRA, AT 64:
"EXPERIENCE HAS SHOWN THAT INTERNATIONAL CONTROVERSIES OF THE GRAVEST
MOMENT, SOMETIMES EVEN LEADING TO WAR, MAY ARISE FROM REAL OR IMAGINED
WRONGS TO ANOTHER'S SUBJECTS INFLICTED, OR PERMITTED, BY A
GOVERNMENT."  CERTAINLY A STATE COULD NOT DENY ADMISSION TO A TRAVELER
FROM EAST GERMANY NOR BAR ITS CITIZENS FROM GOING THERE.  PASSENGER
CASES, 7 HOW.  283; CF. CRANDALL V. NEVADA, 6 WALL.  35; KENT V.
DULLES, 357 U.S. 116.  IF THERE ARE TO BE SUCH RESTRAINTS, THEY MUST BE
PROVIDED BY THE FEDERAL GOVERNMENT.  THE PRESENT OREGON LAW IS NOT AS
GROSS AN INTRUSION IN THE FEDERAL DOMAIN AS THOSE OTHERS MIGHT BE.
YET, AS WE HAVE SAID, IT HAS A DIRECT IMPACT UPON FOREIGN RELATIONS AND
MAY WELL ADVERSELY AFFECT THE POWER OF THE CENTRAL GOVERNMENT TO DEAL
WITH THOSE PROBLEMS. 

THE OREGON LAW DOES, INDEED, ILLUSTRATE THE DANGERS WHICH ARE
INVOLVED IF EACH STATE, SPEAKING THROUGH ITS PROBATE COURTS, IS
PERMITTED TO ESTABLISH ITS OWN FOREIGN POLICY.  REVERSED.    FN1  "(1)
THE RIGHT OF AN ALIEN NOT RESIDING WITHIN THE UNITED STATES OR ITS
TERRITORIES TO TAKE EITHER REAL OR PERSONAL PROPERTY OR THE PROCEEDS
THEREOF IN THIS STATE BY SUCCESSION OR TESTAMENTARY DISPOSITION, UPON
THE SAME TERMS AND CONDITIONS AS INHABITANTS AND CITIZENS OF THE UNITED
STATES, IS DEPENDENT IN EACH CASE: 

"(A)  UPON THE EXISTENCE OF A RECIPROCAL RIGHT UPON THE PART OF
CITIZENS OF THE UNITED STATES TO TAKE REAL AND PERSONAL PROPERTY AND
THE PROCEEDS THEREOF UPON THE SAME TERMS AND CONDITIONS AS INHABITANTS
AND CITIZENS OF THE COUNTRY OF WHICH SUCH ALIEN IS AN INHABITANT OR
CITIZEN.    "(B)  UPON THE RIGHTS OF CITIZENS OF THE UNITED STATES TO
RECEIVE BY PAYMENT TO THEM WITHIN THE UNITED STATES OR ITS TERRITORIES
MONEY ORIGINATING FROM THE ESTATES OF PERSONS DYING WITHIN SUCH FOREIGN
COUNTRY; AND. 

"(C)  UPON PROOF THAT SUCH FOREIGN HEIRS, DISTRIBUTEES, DEVISEES OR
LEGATEES MAY RECEIVE THE BENEFIT, USE OR CONTROL OF MONEY OR PROPERTY
FROM ESTATES OF PERSONS DYING IN THIS STATE WITHOUT CONFISCATION, IN
WHOLE OR IN PART, BY THE GOVERNMENTS OF SUCH FOREIGN COUNTRIES. 

"(2)  THE BURDEN IS UPON SUCH NONRESIDENT ALIEN TO ESTABLISH THE FACT
OF EXISTENCE OF THE RECIPROCAL RIGHTS SET FORTH IN SUBSECTION (1) OF
THIS SECTION. 

"(3)  IF SUCH RECIPROCAL RIGHTS ARE NOT FOUND TO EXIST AND IF NO
HEIR, DEVISEE OR LEGATEE OTHER THAN SUCH ALIEN IS FOUND ELIGIBLE TO
TAKE SUCH PROPERTY, THE PROPERTY SHALL BE DISPOSED OF AS ESCHEATED
PROPERTY." 

FN2  ARTICLE IV PROVIDES: 

"WHERE, ON THE DEATH OF ANY PERSON HOLDING REAL OR OTHER IMMOVABLE
PROPERTY OR INTERESTS THEREIN WITHIN THE TERRITORIES OF ONE HIGH
CONTRACTING PARTY, SUCH PROPERTY OR INTERESTS THEREIN WOULD, BY THE
LAWS OF THE COUNTRY OR BY A TESTAMENTARY DISPOSITION, DESCEND OR PASS
TO A NATIONAL OF THE OTHER HIGH CONTRACTING PARTY, WHETHER RESIDENT OR
NON-RESIDENT, WERE HE NOT DISQUALIFIED BY THE LAWS OF THE COUNTRY WHERE
SUCH PROPERTY OR INTERESTS THEREIN IS OR ARE SITUATED, SUCH NATIONAL
SHALL BE ALLOWED A TERM OF THREE YEARS IN WHICH TO SELL THE SAME, THIS
TERM TO BE REASONABLY PROLONGED IF CIRCUMSTANCES RENDER IT NECESSARY,
AND WITHDRAW THE PROCEEDS THEREOF, WITHOUT RESTRAINT OR INTERFERENCE,
AND EXEMPT FROM ANY SUCCESSION, PROBATE OR ADMINISTRATIVE DUTIES OR
CHARGES OTHER THAN THOSE WHICH MAY BE IMPOSED IN LIKE CASES UPON THE
NATIONALS OF THE COUNTRY FROM WHICH SUCH PROCEEDS MAY BE DRAWN. 

"NATIONALS OF EITHER HIGH CONTRACTING PARTY MAY HAVE FULL POWER TO
DISPOSE OF THEIR PERSONAL PROPERTY OF EVERY KIND WITHIN THE TERRITORIES
OF THE OTHER, BY TESTAMENT, DONATION, OR OTHERWISE, AND THEIR HEIRS,
LEGATEES AND DONEES, OF WHATSOEVER NATIONALITY, WHETHER RESIDENT OR NON
RESIDENT, SHALL SUCCEED TO SUCH PERSONAL PROPERTY, AND MAY TAKE
POSSESSION THEREOF, EITHER BY THEMSELVES OR BY OTHERS ACTING FOR THEM,
AND RETAIN OR DISPOSE OF THE SAME AT THEIR PLEASURE SUBJECT TO THE
PAYMENT OF SUCH DUTIES OR CHARGES ONLY AS THE NATIONALS OF THE HIGH
CONTRACTING PARTY WITHIN WHOSE TERRITORIES SUCH PROPERTY MAY BE OR
BELONG SHALL BE LIABLE TO PAY IN LIKE CASES." 

FN3  SUPRA, N. 1. 

FN4  ORE.  COMP.  L. ANN. SEC 61-107 (1940). 

FN5  IN CLARK V. ALLEN, 331 U.S. 503, THE DISTRICT COURT HAD HELD THE
CALIFORNIA RECIPROCITY STATUTE UNCONSTITUTIONAL BECAUSE OF LEGISLATIVE
HISTORY INDICATING THAT THE PURPOSE OF THE STATUTE WAS TO PREVENT
AMERICAN ASSETS FROM REACHING HOSTILE NATIONS PREPARING FOR WAR ON THIS
COUNTRY.  CROWLEY V. ALLEN, 52 F. SUPP. 850, 853 (D.C.N.D.  CALIF.). 
BUT WHEN THE CASE REACHED THIS COURT, PETITIONER CONTENDED THAT THE
STATUTE WAS INVALID, NOT BECAUSE OF THE LEGISLATURE'S MOTIVE, BUT
BECAUSE ON ITS FACE THE STATUTE CONSTITUTED "AN INVASION OF THE
EXCLUSIVELY FEDERAL FIELD OF CONTROL OVER OUR FOREIGN RELATIONS."  IN
DISCUSSING HOW THE STATUTE WAS APPLIED, PETITIONER NOTED THAT A
CALIFORNIA COURT HAD ACCEPTED AS CONCLUSIVE PROOF OF RECIPROCITY THE
STATEMENT OF A FOREIGN AMBASSADOR THAT RECIPROCAL RIGHTS EXISTED IN HIS
NATION.  BRIEF FOR PETITIONER IN CLARK V. ALLEN, NO. 626, OCTOBER TERM
1946, PP. 73-74.  THUS WE HAD NO REASON TO SUSPECT THAT THE CALIFORNIA
STATUTE IN CLARK V. ALLEN WAS TO BE APPLIED AS ANYTHING OTHER THAN A
GENERAL RECIPROCITY PROVISION REQUIRING JUST MATCHING OF LAWS.  HAD WE
BEEN REVIEWING THE LATER CALIFORNIA DECISION OF ESTATE OF GOGABASHVELE,
195 CAL. APP.  2D 503, 16 CAL. RPTR.  77, SEE N. 6, INFRA, THE
ADDITIONAL PROBLEMS WE NOW FIND WITH THE OREGON PROVISION WOULD HAVE
BEEN PRESENTED. 

FN6  SEE ESTATE OF GOGABASHVELE, 195 CAL. APP. 2D 503, 16 CAL. RPTR. 
77, DISAPPROVED IN ESTATE OF LARKIN, 65 CAL. 2D 60, 416 P.2D 473, AND
ESTATE OF CHICHERNEA, 66 CAL.  2D 83, 424 P.2D 687.  ONE COMMENTATOR
HAS DESCRIBED THE GOGABASHVELE DECISION IN THE FOLLOWING MANNER: 

"THE COURT ANALYZED THE GENERAL NATURE OF RIGHTS IN THE SOVIET SYSTEM
INSTEAD OF EXAMINING WHETHER RUSSIAN INHERITANCE RIGHTS WERE GRANTED
EQUALLY TO ALIENS AND RESIDENTS.  THE COURT FOUND RUSSIA HAD NO
SEPARATION OF POWERS, TOO MUCH CONTROL IN THE HANDS OF THE COMMUNIST
PARTY, NO INDEPENDENT JUDICIARY, CONFUSED LEGISLATION, UNPUBLISHED
STATUTES, AND UNREPEALED OBSOLETE STATUTES.  BEFORE STATING ITS HOLDING
OF NO RECIPROCITY, THE COURT ALSO NOTED STALIN'S CRIMES, THE BERIA
TRIAL, THE DOCTRINE OF CRIME BY ANALOGY, SOVIET XENOPHOBIA, AND
DEMONSTRATIONS AT THE AMERICAN EMBASSY IN MOSCOW UNHINDERED BY THE
POLICE.  THE COURT CONCLUDED THAT A LEADING SOVIET JURIST'S
CONSTRUCTION OF ARTICLE 8 OF THE LAW ENACTING THE R.S.F.S.R. CIVIL CODE
SEEMED MODELED AFTER HUMPTY DUMPTY, WHO SAID, 'WHEN I USE A WORD  ...
, IT MEANS JUST WHAT I CHOOSE IT TO MEAN - NEITHER MORE NOR LESS.'" 
NOTE, 55 CALIF. L. REV. 592, 594-595, N. 10 (1967). 

FN7  THE ROGERS CASE, WE ARE ADVISED, PROMPTED THE GOVERNMENT OF
BULGARIA TO REGISTER A COMPLAINT WITH THE STATE DEPARTMENT, AS
DISCLOSED BY A LETTER OF NOVEMBER 20, 1967, WRITTEN BY A STATE
DEPARTMENT ADVISER TO THE OREGON TRIAL COURT STATING:  "THE GOVERNMENT
OF BULGARIA HAS RAISED WITH THIS GOVERNMENT THE MATTER OF DIFFICULTIES
REPORTEDLY BEING ENCOUNTERED BY BULGARIAN CITIZENS RESIDENT IN BULGARIA
IN OBTAINING THE TRANSFER TO THEM OF PROPERTY OR FUNDS FROM ESTATES
PROBATED IN THIS COUNTRY, SOME UNDER THE JURISDICTION OF THE STATE OF
OREGON  ...  ." 

FN8  SUCH ATTITUDES ARE NOT CONFINED TO THE OREGON COURTS. 
REPRESENTATIVE SAMPLES FROM OTHER STATES WOULD INCLUDE STATEMENTS IN
THE NEW YORK COURTS, SUCH AS "THIS COURT WOULD CONSIDER SENDING MONEY
OUT OF THIS COUNTRY AND INTO HUNGARY TANTAMOUNT TO PUTTING FUNDS WITHIN
THE GRASP OF THE COMMUNISTS," AND "IF THIS MONEY WERE TURNED OVER TO
THE RUSSIAN AUTHORITIES, IT WOULD BE USED TO KILL OUR BOYS AND INNOCENT
PEOPLE IN SOUTHEAST ASIA  ...  ."  HEYMAN, THE NONRESIDENT ALIEN'S
RIGHT TO SUCCESSION UNDER THE "IRON CURTAIN RULE," 52 NW. U.L. REV.
221, 234 (1957).  IN PENNSYLVANIA, A JUDGE STATED AT THE TRIAL OF A
CASE INVOLVING A SOVIET CLAIMANT THAT "IF YOU WANT TO SAY THAT I'M
PREJUDICED, YOU CAN, BECAUSE WHEN IT COMES TO COMMUNISM I'M A BIGOTED
ANTI-COMMUNIST."  AND ANOTHER JUDGE EXCLAIMED, "I AM NOT GOING TO SEND
MONEY TO RUSSIA WHERE IT CAN GO INTO MAKING BULLETS WHICH MAY ONE DAY
BE USED AGAINST MY SON."  A CALIFORNIA JUDGE, UPON BEING ASKED IF HE
WOULD HEAR ARGUMENT ON THE LAW, REPLIED, "NO, I WON'T SEND ANY MONEY TO
RUSSIA."  THE JUDGE TOOK "JUDICIAL NOTICE THAT RUSSIA KICKS THE UNITED
STATES IN THE TEETH ALL THE TIME," AND TOLD COUNSEL FOR THE SOVIET
CLAIMANT THAT "I WOULD THINK YOUR FIRM WOULD FEEL IT HONOR BOUND TO
WITHDRAW AS REPRESENTING THE RUSSIAN GOVERNMENT.  NO AMERICAN CAN MAKE
IT TOO STRONG."  BERMAN, SOVIET HEIRS IN AMERICAN COURTS, 62 COL. L.
REV. 257, AND N. 3 (1962). 

A PARTICULARLY POINTED ATTACK WAS MADE BY JUDGE MUSMANNO OF THE
PENNSYLVANIA SUPREME COURT, WHERE HE STATED WITH RESPECT TO THE
PENNSYLVANIA ACT THAT: 

"IT IS A COMMENDABLE AND SALUTARY PIECE OF LEGISLATION BECAUSE IT
PROVIDES FOR THE SAFEKEEPING OF THESE FUNDS EVEN WITH ACCRUING
INTEREST, IN THE STEELBOUND VAULTS OF THE COMMONWEALTH OF PENNSYLVANIA
UNTIL SUCH TIME AS THE IRON CURTAIN LIFTS OR SUFFICIENTLY CRACKS TO
ALLOW HONEST MONEY TO PASS THROUGH AND BE HONESTLY DELIVERED TO THE
PERSONS ENTITLED TO THEM.  OTHERWISE, WAGES AND OTHER MONETARY REWARDS
FAITHFULLY EARNED UNDER A FREE ENTERPRISE DEMOCRATIC SYSTEM COULD BE
USED BY COMMUNIST FORCES WHICH ARE COMMITTED TO THE VERY DESTRUCTION OF
THAT FREE ENTERPRISING WORLD OF DEMOCRACY."  BELEMECICH ESTATE, 411 PA.
506, 508, 192 A.2D 740, 741, REV'D, SUB NOM. CONSUL GENERAL OF
YUGOSLAVIA V. PENNSYLVANIA, 375 U.S. 395, ON AUTHORITY OF KOLOVRAT V.
OREGON, 366 U.S. 187. 

AND FURTHER: 

"  ...  YUGOSLAVIA, AS THE COURT BELOW FOUND, IS A SATELLITE STATE
WHERE THE RESIDENTS HAVE NO INDIVIDUALISTIC CONTROL OVER THEIR DESTINY,
FATE OR POCKETBOOKS, AND WHERE THEIR POLITICO-ECONOMIC HORIZON IS
RAISED OR LOWERED ACCORDING TO THE WILL, WISH OR WHIM OF A SELF-MADE
DICTATOR."  411 PA., AT 509, 192 A.2D, AT 742. 

"ALL THE KNOWN FACTS OF A SOVIETIZED STATE LEAD TO THE IRRESISTIBLE
CONCLUSION THAT SENDING AMERICAN MONEY TO A PERSON WITHIN THE BORDERS
OF AN IRON CURTAIN COUNTRY IS LIKE SENDING A BASKET OF FOOD TO LITTLE
RED RIDINGHOOD IN CARE OF HER 'GRANDMOTHER.'  IT COULD BE THAT THE
GREEDY, GLUTTONOUS GRASP OF THE GOVERNMENT COLLECTOR IN YUGOSLAVIA DOES
NOT CLUTCH AS RAPACIOUSLY AS HIS BROTHER CONFISCATORS IN RUSSIA, BUT IT
IS ABUNDANTLY CLEAR THAT THERE IS NO ASSURANCE UPON WHICH AN AMERICAN
COURT CAN DEPEND THAT A NAMED YUGOSLAVIAN INDIVIDUAL BENEFICIARY OF
AMERICAN DOLLARS WILL HAVE ANYTHING LEFT TO SHELTER, CLOTHE AND FEED
HIMSELF ONCE HE HAS PAID FINANCIAL INVOLUNTARY TRIBUTE TO THE TYRANNY
OF A TOTALITARIAN REGIME."  ID., AT 511, 192 A. 2D, AT 742-743. 

ANOTHER EXAMPLE IS A CONCURRING OPINION BY JUSTICE DOYLE IN IN RE
HOSOVA'S ESTATE, 143 MONT. 74, 387 P.2D 305: 

"IN THIS YEAR OF 1963, THE CENTRAL COMMITTEE OF THE COMMUNIST PARTY
OF THE U.S.S.R.  ISSUED THE FOLLOWING DIRECTIVE TO ALL OF ITS MEMBERS,
"WE FULLY STAND FOR THE DESTRUCTION OF IMPERIALISM AND CAPITALISM.  WE
NOT ONLY BELIEVE IN THE INEVITABLE DESTRUCTION OF CAPITALISM, BUT ALSO
ARE DOING EVERYTHING FOR THIS TO BE ACCOMPLISHED BY WAY OF THE CLASS
STRUGGLE, AND AS SOON AS POSSIBLE.' 

"HENCE, IN AFFIRMING THIS DECISION THE WRITER IS KNOWINGLY
CONTRIBUTING FINANCIAL AID TO A COMMUNIST MONOLITHIC SATELLITE,
FANATICALLY DEDICATED TO THE ABOLISHING OF THE FREEDOM AND LIBERTY OF
THE CITIZENS OF THIS NATION. 

"BY REASON OF SELF-HYPNOSIS AND FAILURE TO UNDERSTAND THE AIMS AND
OBJECTIVES OF THE INTERNATIONAL COMMUNIST CONSPIRACY, IN THE YEAR 1946,
MONTANA DID NOT HAVE STATUTES TO ESTOP US FROM MAKING CASH
CONTRIBUTIONS TO OUR OWN ULTIMATE DESTRUCTION AS A FREE NATION."  ID.,
AT 85-86, 387 P.2D, AT 311. 

FN9  IN MULLART V. STATE LAND BOARD, 222 ORE.  463, 353 P.2D 531, THE
COURT HAD LITTLE DIFFICULTY FINDING THAT RECIPROCITY EXISTED WITH
ESTONIA.  BUT IT TOOK PAINS TO OBSERVE THAT IN 1941 RUSSIA "MOVED IN
AND OVERWHELMED IT (ESTONIA) WITH ITS MILITARY MIGHT.  AT THE SAME TIME
THE SOVIET HASTILY AND CRUELLY DEPORTED ABOUT 60,000 OF ITS PEOPLE TO
RUSSIA AND SIBERIA AND, IN ADDITION, EXTERMINATED MANY OF ITS ELDERLY
RESIDENTS.  THIS POLICY OF DESTROYING OR DECIMATING FAMILIES AND
RENDERING NORMAL ECONOMIC LIFE CHAOTIC CONTINUED LONG AFTERWARD."  ID.,
AT 467, 353 P.2D, AT 534. 

"ANY EFFORT TO COMMUNICATE WITH PERSONS IN ESTONIA EXPOSES SUCH
PERSONS TO POSSIBLE DEATH OR EXILE TO SIBERIA.  IT SEEMS THAT THE
RUSSIANS SCRUTINIZE ALL CORRESPONDENCE FROM FRIENDS OF ESTONIANS IN
LANDS WHERE FREEDOM PREVAILS AND SUBJECT THE RECIPIENT TO SUSPICION OF
A RELATIONSHIP INIMICAL TO THE SOVIET  ...  .  THIS LINE OF TESTIMONY
HAS THE SUPPORT OF RELIABLE HISTORICAL MATTER OF WHICH WE TAKE NOTICE. 
WE MENTION IT AS EXPLAINING THE FUTILITY OF ATTEMPTING, UNDER THE
CIRCUMSTANCES, TO SECURE MORE COGENT EVIDENCE THAN HEARSAY IN THE
MATTER."  ID., AT 476, 353 P.2D, AT 537-538. 

FN10  SEE BERMAN, SOVIET HEIRS IN AMERICAN COURTS, 62 COL. L. REV.
257 (1962); CHAITKIN, THE RIGHTS OF RESIDENTS OF RUSSIA AND ITS
SATELLITES TO SHARE IN ESTATES OF AMERICAN DECEDENTS, 25 S. CAL. L.
REV. 297 (1952). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING. 

WHILE JOINING THE OPINION OF THE COURT, I WOULD GO FURTHER.  UNDER
THE OREGON LAW INVOLVED IN THIS CASE, A FOREIGNER CANNOT RECEIVE
PROPERTY FROM AN OREGON DECEDENT'S ESTATE UNLESS HE FIRST MEETS THE
BURDEN OF PROVING, TO THE SATISFACTION OF AN OREGON COURT, THAT HIS
COUNTRY (1) GRANTS TO UNITED STATES CITIZENS A "RECIPROCAL RIGHT" TO
TAKE PROPERTY ON THE SAME TERMS AS ITS OWN CITIZENS; (2) ASSURES
AMERICANS THE RIGHT "TO RECEIVE PAYMENT" HERE OF FUNDS ORIGINATING FROM
ESTATES IN THAT COUNTRY; AND (3) GIVES ITS OWN CITIZENS THE "BENEFIT,
USE OR CONTROL" OF PROPERTY RECEIVED FROM AN OREGON ESTATE "WITHOUT
CONFISCATION, IN WHOLE OR IN PART."  THE EAST GERMAN CLAIMANTS IN THIS
CASE DID NOT SHOW IN THE OREGON COURTS THAT THEIR COUNTRY COULD MEET
ANY ONE OF THESE CRITERIA.  I BELIEVE THAT ALL THREE OF THE STATUTORY
REQUIREMENTS ON THEIR FACE ARE CONTRARY TO THE CONSTITUTION OF THE
UNITED STATES. 

IN MY VIEW, EACH OF THE THREE PROVISIONS OF THE OREGON LAW SUFFERS
FROM THE SAME FATAL INFIRMITY.  ALL THREE LAUNCH THE STATE UPON A
PROHIBITED VOYAGE INTO A DOMAIN OF EXCLUSIVELY FEDERAL COMPETENCE. 
ANY REALISTIC ATTEMPT TO APPLY ANY OF THE THREE CRITERIA WOULD
NECESSARILY INVOLVE THE OREGON COURTS IN AN EVALUATION, EITHER
EXPRESSED OR IMPLIED, OF THE ADMINISTRATION OF FOREIGN LAW, THE
CREDIBILITY OF FOREIGN DIPLOMATIC STATEMENTS, AND THE POLICIES OF
FOREIGN GOVERNMENTS.  OF COURSE STATE COURTS MUST ROUTINELY CONSTRUE
FOREIGN LAW IN THE RESOLUTION OF CONTROVERSIES PROPERLY BEFORE THEM,
BUT HERE THE COURTS OF OREGON ARE THRUST INTO THESE INQUIRIES ONLY
BECAUSE THE OREGON LEGISLATURE HAS FRAMED ITS INHERITANCE LAWS TO THE
PREJUDICE OF NATIONS WHOSE POLICIES IT DISAPPROVES AND THUS HAS
TRESPASSED UPON AN AREA WHERE THE CONSTITUTION CONTEMPLATES THAT ONLY
THE NATIONAL GOVERNMENT SHALL OPERATE.  "FOR LOCAL INTERESTS THE
SEVERAL STATES OF THE UNION EXIST, BUT FOR NATIONAL PURPOSES, EMBRACING
OUR RELATIONS WITH FOREIGN NATIONS, WE ARE BUT ONE PEOPLE, ONE NATION,
ONE POWER."  CHINESE EXCLUSION CASE, 130 U.S. 581, 606.  "OUR SYSTEM OF
GOVERNMENT IS SUCH THAT THE INTEREST OF THE CITIES, COUNTIES AND
STATES, NO LESS THAN THE INTEREST OF THE PEOPLE OF THE WHOLE NATION,
IMPERATIVELY REQUIRES THAT FEDERAL POWER IN THE FIELD AFFECTING FOREIGN
RELATIONS BE LEFT ENTIRELY FREE FROM LOCAL INTERFERENCE."  HINES V.
DAVIDOWITZ, 312 U.S. 52, 63. 

THE SOLICITOR GENERAL, AS AMICUS CURIAE, SAYS THAT THE GOVERNMENT
DOES NOT "CONTEND THAT THE APPLICATION OF THE OREGON ESCHEAT STATUTE IN
THE CIRCUMSTANCES OF THIS CASE UNDULY INTERFERES WITH THE UNITED
STATES' CONDUCT OF FOREIGN RELATIONS."  BUT THAT IS NOT THE POINT.  WE
DEAL HERE WITH THE BASIC ALLOCATION OF POWER BETWEEN THE STATES AND THE
NATION.  RESOLUTION OF SO FUNDAMENTAL A CONSTITUTIONAL ISSUE CANNOT
VARY FROM DAY TO DAY WITH THE SHIFTING WINDS AT THE STATE DEPARTMENT. 
TODAY, WE ARE TOLD, OREGON'S STATUTE DOES NOT CONFLICT WITH THE
NATIONAL INTEREST.  TOMORROW IT MAY.   BUT, HOWEVER THAT MAY BE, THE
FACT REMAINS THAT THE CONDUCT OF OUR FOREIGN AFFAIRS IS ENTRUSTED UNDER
THE CONSTITUTION TO THE NATIONAL GOVERNMENT, NOT TO THE PROBATE COURTS
OF THE SEVERAL STATES.  TO THE EXTENT THAT CLARK V. ALLEN, 331 U.S.
503, IS INCONSISTENT WITH THESE VIEWS, I WOULD OVERRULE THAT DECISION. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

ALTHOUGH I AGREE WITH THE RESULT REACHED IN THIS CASE, I AM UNABLE TO
SUBSCRIBE TO THE COURT'S OPINION, FOR THREE REASONS.  FIRST, BY RESTING
ITS DECISION ON THE CONSTITUTIONAL GROUND THAT THIS OREGON INHERITANCE
STATUTE INFRINGES THE FEDERAL FOREIGN RELATIONS POWER, WITHOUT PAUSING
TO CONSIDER WHETHER THE 1923 TREATY OF FRIENDSHIP, COMMERCE AND
CONSULAR RIGHTS WITH GERMANY (FN1) ITSELF VITIATES THIS APPLICATION OF
THE STATE STATUTE, THE COURT HAS DELIBERATELY TURNED ITS BACK ON A
CARDINAL PRINCIPLE OF JUDICIAL REVIEW.  SECOND, CORRECTLY CONSTRUED THE
1923 TREATY, IN MY OPINION, RENDERS OREGON'S APPLICATION OF ITS STATUTE
IN THIS INSTANCE IMPERMISSIBLE, THUS REQUIRING REVERSAL OF THE STATE
JUDGMENT.  THIRD, THE COURT'S CONSTITUTIONAL HOLDING, WHICH I REACH
ONLY BECAUSE THE MAJORITY HAS DONE SO, IS IN MY VIEW UNTENABLE.  THE
IMPACT OF TODAY'S HOLDING ON STATE POWER IN THIS FIELD, AND PERHAPS IN
OTHER AREAS OF THE LAW AS WELL, JUSTIFIES A FULL STATEMENT OF MY VIEWS
UPON THE CASE. 

                 I. 

EVEN IN THIS AGE OF RAPID CONSTITUTIONAL CHANGE, THE COURT HAS
CONTINUED TO PROCLAIM ADHERENCE TO THE PRINCIPLE THAT DECISION OF
CONSTITUTIONAL ISSUES SHOULD BE AVOIDED WHEREVER POSSIBLE.  (FN2)  IN
HIS CELEBRATED CONCURRING OPINION IN ASHWANDER V. VALLEY AUTHORITY, 297
U.S. 288, 341, MR. JUSTICE BRANDEIS LISTED THE SELF-IMPOSED RULES BY
WHICH THE COURT HAS AVOIDED THE UNNECESSARY DECISION OF CONSTITUTIONAL
QUESTIONS.  IN HIS FOURTH RULE HE DEALT WITH THE SITUATION PRESENTED BY
THIS CASE, DECLARING THAT: 

"THE COURT WILL NOT PASS UPON A CONSTITUTIONAL QUESTION ALTHOUGH
PROPERLY PRESENTED BY THE RECORD, IF THERE IS ALSO PRESENT SOME OTHER
GROUND UPON WHICH THE CASE MAY BE DISPOSED OF  ...  .  THUS, IF A CASE
CAN BE DECIDED ON EITHER OF TWO GROUNDS, ONE INVOLVING A CONSTITUTIONAL
QUESTION, THE OTHER A QUESTION OF STATUTORY CONSTRUCTION OR GENERAL
LAW, THE COURT WILL DECIDE ONLY THE LATTER.  SILER V. LOUISVILLE &
NASHVILLE R. CO., 213 U.S. 175, 191; LIGHT V. UNITED STATES, 220 U.S.
523, 538."  ID., AT 347.  (FN3) 

THE ABOVE RULE SHOULD CONTROL THE DISPOSITION OF THIS CASE, FOR THERE
IS WHAT I THINK MUST BE REGARDED, WITHIN THE MEANING OF ASHWANDER, AS A
NONCONSTITUTIONAL GROUND ON WHICH THE DECISION COULD BE FOUNDED. 
ALTHOUGH THE APPELLANTS CHOSE TO ARGUE ONLY THE CONSTITUTIONAL
QUESTION, THE UNITED STATES, AS AMICUS CURIAE, FORCEFULLY, AND I
BELIEVE CORRECTLY, CONTENDED THAT THE FULL RELIEF SOUGHT BY THE
APPELLANTS SHOULD BE AFFORDED BY OVERRULING THE CONSTRUCTION OF THE
1923 TREATY, RATHER THAN THE CONSTITUTIONAL HOLDING, IN CLARK V. ALLEN,
331 U.S. 503.  THE COURT SIMPLY STATES THAT "WE DO NOT ACCEPT THE
INVITATION TO RE-EXAMINE OUR RULING IN CLARK V. ALLEN."  SEE ANTE, AT
432.  I BELIEVE THAT THE PRINCIPLE OF AVOIDING UNNECESSARY
CONSTITUTIONAL ADJUDICATION OBLIGES US TO ACCEPT THAT INVITATION AND TO
INQUIRE WHETHER THE TREATY MIGHT PROVIDE AN ADEQUATE ALTERNATIVE GROUND
FOR AFFORDING THE APPELLANTS THEIR DUE.  (FN4)

            II. 

ARTICLE IV OF THE 1923 TREATY WITH GERMANY PROVIDES: 

"WHERE, ON THE DEATH OF ANY PERSON HOLDING REAL OR OTHER IMMOVABLE
PROPERTY OR INTERESTS THEREIN WITHIN THE TERRITORIES OF ONE HIGH
CONTRACTING PARTY, SUCH PROPERTY OR INTERESTS THEREIN WOULD, BY THE
LAWS OF THE COUNTRY OR BY A TESTAMENTARY DISPOSITION, DESCEND OR PASS
TO A NATIONAL OF THE OTHER HIGH CONTRACTING PARTY, WHETHER RESIDENT OR
NON-RESIDENT, WERE HE NOT DISQUALIFIED BY THE LAWS OF THE COUNTRY WHERE
SUCH PROPERTY OR INTERESTS THEREIN IS OR ARE SITUATED, SUCH NATIONAL
SHALL BE ALLOWED A TERM OF THREE YEARS IN WHICH TO SELL THE SAME, THIS
TERM TO BE REASONABLY PROLONGED IF CIRCUMSTANCES RENDER IT NECESSARY,
AND WITHDRAW THE PROCEEDS THEREOF, WITHOUT RESTRAINT OR INTERFERENCE,
AND EXEMPT FROM ANY SUCCESSION, PROBATE OR ADMINISTRATIVE DUTIES OR
CHARGES OTHER THAN THOSE WHICH MAY BE IMPOSED IN LIKE CASES UPON THE
NATIONALS OF THE COUNTRY FROM WHICH SUCH PROCEEDS MAY BE DRAWN. 

"NATIONALS OF EITHER HIGH CONTRACTING PARTY MAY HAVE FULL POWER TO
DISPOSE OF THEIR PERSONAL PROPERTY OF EVERY KIND WITHIN THE TERRITORIES
OF THE OTHER, BY TESTAMENT, DONATION, OR OTHERWISE, AND THEIR HEIRS,
LEGATEES AND DONEES, OF WHATSOEVER NATIONALITY, WHETHER RESIDENT OR NON
RESIDENT, SHALL SUCCEED TO SUCH PERSONAL PROPERTY, AND MAY TAKE
POSSESSION THEREOF, EITHER BY THEMSELVES OR BY OTHERS ACTING FOR THEM,
AND RETAIN OR DISPOSE OF THE SAME AT THEIR PLEASURE SUBJECT TO THE
PAYMENT OF SUCH DUTIES OR CHARGES ONLY AS THE NATIONALS OF THE HIGH
CONTRACTING PARTY WITHIN WHOSE TERRITORIES SUCH PROPERTY MAY BE OR
BELONG SHALL BE LIABLE TO PAY IN LIKE CASES." 

IN CLARK V. ALLEN, SUPRA, THIS COURT CONSIDERED THE APPLICATION OF
THIS TREATY PROVISION TO A CASE MUCH LIKE THE PRESENT ONE.  IN CLARK
ONE WHO WAS APPARENTLY AN AMERICAN CITIZEN DIED IN CALIFORNIA AND LEFT
HER REAL AND PERSONAL PROPERTY TO GERMAN NATIONALS.  THE CALIFORNIA
PROBATE CODE PROVIDED THAT: 

"THE RIGHTS OF ALIENS NOT RESIDING WITHIN THE UNITED STATES  ...  TO
TAKE EITHER REAL OR PERSONAL PROPERTY OR THE PROCEEDS THEREOF IN THIS
STATE BY SUCCESSION OR TESTAMENTARY DISPOSITION, UPON THE SAME TERMS
AND CONDITIONS AS RESIDENTS AND CITIZENS OF THE UNITED STATES IS
DEPENDENT IN EACH CASE UPON THE EXISTENCE OF A RECIPROCAL RIGHT UPON
THE PART OF CITIZENS OF THE UNITED STATES TO TAKE REAL AND PERSONAL
PROPERTY AND THE PROCEEDS THEREOF UPON THE SAME TERMS AND CONDITIONS AS
RESIDENTS AND CITIZENS OF THE RESPECTIVE COUNTRIES OF WHICH SUCH ALIENS
ARE INHABITANTS AND CITIZENS AND UPON THE RIGHTS OF CITIZENS OF THE
UNITED STATES TO RECEIVE BY PAYMENT TO THEM WITHIN THE UNITED STATES OR
ITS TERRITORIES MONEY ORIGINATING FROM THE ESTATES OF PERSONS DYING
WITHIN SUCH FOREIGN COUNTRIES."  CAL. PROB.  CODE SEC 259, ADDED BY
STATS. 1941, C. 895, SEC 1. 

THE CLARK COURT FIRST CONSIDERED WHETHER THE 1923 TREATY WITH GERMANY
HAD SURVIVED THE EVENTS OF THE YEARS 1923-1947.  IT CONCLUDED THAT THE
TREATY WAS STILL IN EFFECT AND THAT IT CLEARLY ENTITLED THE GERMAN
CITIZENS TO TAKE THE REAL ESTATE LEFT THEM BY THE DECEDENT. 

THE COURT THEN WENT ON TO DISCUSS THE APPLICATION OF THE TREATY TO
PERSONALTY.  IT NOTED THAT A PRACTICALLY IDENTICAL PROVISION OF A
TREATY WITH WURTTEMBURG HAD BEEN HELD IN THE 1860 CASE OF FREDERICKSON
V. LOUISIANA, 23 HOW.  445, NOT TO GOVERN "THE CASE OF A CITIZEN OR
SUBJECT OF THE RESPECTIVE COUNTRIES RESIDING AT HOME, AND DISPOSING OF
PERSONAL PROPERTY THERE IN FAVOR OF A CITIZEN OR SUBJECT OF THE OTHER
...  ," ID., AT 447, AND THAT THE FREDERICKSON DECISION HAD BEEN
FOLLOWED IN 1917 CASES INVOLVING THREE OTHER TREATIES.  (FN5)  THE
COURT THEN SAID: 

"THE CONSTRUCTION ADOPTED BY THOSE CASES IS, TO SAY THE LEAST,
PERMISSIBLE WHEN THE SYNTAX OF THE SENTENCES DEALING WITH REALTY AND
PERSONALTY IS CONSIDERED.  SO FAR AS REALTY IS CONCERNED, THE TESTATOR
INCLUDES 'ANY PERSON'; AND THE PROPERTY COVERED IS THAT WITHIN THE
TERRITORY OF EITHER OF THE HIGH CONTRACTING PARTIES.  IN CASE OF
PERSONALTY, THE PROVISION GOVERNS THE RIGHT OF 'NATIONALS' OF EITHER
CONTRACTING PARTY TO DISPOSE OF THEIR PROPERTY WITHIN THE TERRITORY OF
THE 'OTHER' CONTRACTING PARTY; AND IT IS 'SUCH PERSONAL PROPERTY' THAT
THE 'HEIRS, LEGATEES AND DONEES' ARE ENTITLED TO TAKE. 

"PETITIONER, HOWEVER, PRESENTS A DETAILED ACCOUNT OF THE HISTORY OF
THE CLAUSE WHICH WAS NOT BEFORE THE COURT IN FREDERICKSON V. LOUISIANA,
SUPRA, AND WHICH BEARS OUT THE CONSTRUCTION THAT IT GRANTS THE FOREIGN
HEIR THE RIGHT TO SUCCEED TO HIS INHERITANCE OR THE PROCEEDS THEREOF. 
BUT WE DO NOT STOP TO REVIEW THAT HISTORY.  FOR THE CONSISTENT JUDICIAL
CONSTRUCTION OF THE LANGUAGE SINCE 1860 HAS GIVEN IT A CHARACTER WHICH
THE TREATY-MAKING AGENCIES HAVE NOT SEEN FIT TO ALTER.  AND THAT
CONSTRUCTION IS ENTIRELY CONSISTENT WITH THE PLAIN LANGUAGE OF THE
TREATY.  WE THEREFORE DO NOT DEEM IT APPROPRIATE TO CHANGE THE
CONSTRUCTION AT THIS LATE DATE, EVEN THOUGH AS AN ORIGINAL MATTER THE
OTHER VIEW MIGHT HAVE MUCH TO COMMEND IT."  331 U.S., AT 515-516. 

IN THE CASE NOW BEFORE US, AN AMERICAN CITIZEN DIED IN OREGON,
LEAVING PROPERTY TO RELATIVES IN EAST GERMANY.  AN OREGON STATUTE
CONDITIONED A NONRESIDENT ALIEN'S RIGHT TO INHERIT PROPERTY IN OREGON
UPON THE EXISTENCE OF A RECIPROCAL RIGHT OF AMERICAN CITIZENS TO
INHERIT IN THE ALIEN'S COUNTRY UPON THE SAME TERMS AS CITIZENS OF THAT
COUNTRY; UPON THE RIGHT OF AMERICAN CITIZENS TO RECEIVE PAYMENT WITHIN
THE UNITED STATES FROM THE ESTATES OF DECEDENTS DYING IN THAT COUNTRY;
AND UPON PROOF THAT THE ALIEN HEIRS OF THE AMERICAN DECEDENT WOULD
RECEIVE THE BENEFIT, USE, AND CONTROL OF THEIR INHERITANCE WITHOUT
CONFISCATION.  (FN6)  THE OREGON SUPREME COURT AFFIRMED THE FINDING OF
THE TRIAL COURT THAT THE EVIDENCE DID NOT ESTABLISH THAT AMERICAN
CITIZENS WERE ACCORDED RECIPROCAL RIGHTS TO TAKE PROPERTY FROM OR TO
RECEIVE THE PROCEEDS OF EAST GERMAN ESTATES.  HOWEVER, IT FOUND THAT
THE 1923 TREATY WAS STILL EFFECTIVE WITH RESPECT TO EAST GERMANY, AND
CONSEQUENTLY HELD THAT UNDER CLARK V. ALLEN THE EAST GERMAN HEIRS MUST
BE PERMITTED TO TAKE THE REAL, THOUGH NOT THE PERSONAL, PROPERTY
DESPITE THE OREGON STATUTE. 

I, TOO, BELIEVE THAT THE 1923 TREATY IS STILL APPLICABLE TO EAST
GERMANY.  (FN7)  HOWEVER, I AM SATISFIED THAT CLARK V. ALLEN SHOULD NOT
BE FOLLOWED INSOFAR AS THE COURT THERE HELD THAT THE WORDS OF THE 1923
TREATY MUST BE TAKEN TO BEAR THE MEANING ASCRIBED TO THEM IN
FREDERICKSON V. LOUISIANA BECAUSE OF THE "CONSISTENT JUDICIAL
CONSTRUCTION OF THE LANGUAGE SINCE 1860."  THIS REASONING ASSUMES BOTH
THAT THE DRAFTERS OF THE 1923 TREATY KNEW OF THE FREDERICKSON DECISION
AND THAT THEY THOUGHT FREDERICKSON WOULD CONTROL THE INTERPRETATION OF
THAT TREATY.  THE FIRST ASSUMPTION SEEMS OPEN TO SUBSTANTIAL DOUBT, AND
THE SECOND IS NOT BEYOND QUESTION. 

THERE IS EVIDENCE THAT IN 1899, ALMOST 40 YEARS AFTER THE
FREDERICKSON DECISION, THE STATE DEPARTMENT'S TREATY DRAFTSMEN WERE NOT
AWARE OF THE MEANING GIVEN TO THE CRUCIAL TREATY LANGUAGE IN THAT
OPINION.  FOR IN 1895 THE BRITISH AMBASSADOR INITIATED CORRESPONDENCE
WITH THE STATE DEPARTMENT IN WHICH HE PROPOSED A TREATY WHICH WOULD
ASSURE THAT "NO GREATER CHARGES WOULD BE IMPOSED  ...  ON REAL OR
PERSONAL PROPERTY IN THE UNITED STATES INHERITED BY BRITISH SUBJECTS,
WHETHER DOMICILED WITHIN THE UNION OR NOT, THAN ARE IMPOSED UPON
PROPERTY INHERITED BY AMERICAN CITIZENS," IN RETURN FOR PROVISIONS
ASSURING TO AMERICAN CITIZENS RECIPROCAL RIGHTS IN GREAT BRITAIN. 
(FN8)  THE ENSUING TREATY OF 1899 (FN9) CONTAINED LANGUAGE
SUBSTANTIALLY IDENTICAL TO THAT IN THE SUBSEQUENT 1923 TREATY WITH
GERMANY.  SINCE IT IS HIGHLY UNLIKELY THAT THE BRITISH AMBASSADOR
INTENDED THAT BRITISH SUBJECTS SHOULD BE ABLE TO INHERIT PERSONAL
PROPERTY FROM AMERICAN DECEDENTS ONLY IF THOSE DECEDENTS HAPPENED ALSO
TO BE BRITISH SUBJECTS, OR THAT THE STATE DEPARTMENT SO UNDERSTOOD HIM,
IT IS CLEAR ENOUGH THAT THE DRAFTSMEN IN 1899 MUST HAVE BEEN UNAWARE OF
FREDERICKSON. 

IT IS ALSO CONCEIVABLE THAT THE DRAFTERS OF THE 1923 TREATY THOUGHT
THAT FREDERICKSON WAS INAPPLICABLE TO THAT TREATY.  BECAUSE THE ARTICLE
OF THE WURTTEMBURG TREATY DEALING WITH REALTY WAS NOT BROUGHT TO THE
ATTENTION OF THE FREDERICKSON COURT, THE FREDERICKSON DECISION WAS
BASED LARGELY UPON THE COURT'S UNDERSTANDING THAT: 

"THE CASE OF A CITIZEN OR SUBJECT OF THE RESPECTIVE COUNTRIES
RESIDING AT HOME, AND DISPOSING OF PROPERTY THERE IN FAVOR OF A CITIZEN
OR SUBJECT OF THE OTHER, WAS NOT IN THE CONTEMPLATION OF THE
CONTRACTING POWERS, AND IS NOT EMBRACED IN THIS ARTICLE OF THE
TREATY."  23 HOW., AT 447-448. 

HENCE, THE DRAFTERS OF THE 1923 TREATY MIGHT HAVE ASSUMED THAT
FREDERICKSON WAS NOT APPLICABLE TO THAT TREATY, IN WHICH THE INCLUSION
OF THE REALTY PROVISION MADE IT CLEAR THAT THE PARTIES DID CONSIDER THE
CASE OF A CITIZEN DYING IN HIS OWN COUNTRY.  IN VIEW OF THESE
INDICATIONS THAT THE DRAFTSMEN OF THE 1923 TREATY VERY LIKELY DID NOT
INTEND THAT THE WORDS OF THE TREATY SHOULD BEAR THE MEANING GIVEN THEM
IN FREDERICKSON, IT SEEMS TO ME THAT THE COURT IN CLARK V. ALLEN ERRED
IN HOLDING THE QUESTION FORECLOSED.  ACCORDINGLY, A DE NOVO INQUIRY
INTO THE MEANING OF THE TREATY SEEMS ENTIRELY APPROPRIATE. 
                          III. 

THE LANGUAGE OF ARTICLE IV OF THE 1923 TREATY WITH GERMANY, WHICH WAS
QUOTED EARLIER, IS BASED UPON ARTICLE X OF THE TREATY OF 1785 WITH
PRUSSIA.  (FN10)  ARTICLE X PROVIDED: 

"THE CITIZENS OR SUBJECTS OF EACH PARTY SHALL HAVE POWER TO DISPOSE
OF THEIR PERSONAL GOODS WITHIN THE JURISDICTION OF THE OTHER, BY
TESTAMENT, DONATION OR OTHERWISE; AND THEIR REPRESENTATIVES, BEING
SUBJECTS OR CITIZENS OF THE OTHER PARTY, SHALL SUCCEED TO THEIR SAID
PERSONAL GOODS  ...  AND DISPOSE OF THE SAME AT THEIR WILL, PAYING SUCH
DUES ONLY AS THE INHABITANTS OF THE COUNTRY WHEREIN THE SAID GOODS ARE,
SHALL BE SUBJECT TO PAY IN LIKE CASES  ...  .  AND WHERE, ON THE DEATH
OF ANY PERSON HOLDING REAL ESTATE WITHIN THE TERRITORIES OF THE ONE
PARTY, SUCH REAL ESTATE WOULD BY THE LAWS OF THE LAND DESCEND ON A
CITIZEN OR SUBJECT OF THE OTHER, WERE HE NOT DISQUALIFIED BY ALIENAGE,
SUCH SUBJECT SHALL BE ALLOWED A REASONABLE TIME TO SELL THE SAME, AND
TO WITHDRAW THE PROCEEDS WITHOUT MOLESTATION, AND EXEMPT FROM ALL
RIGHTS OF DETRACTION ON THE PART OF THE GOVERNMENT OF THE RESPECTIVE
STATES." 

THIS PART OF THE TREATY WITH PRUSSIA WAS IN TURN FOUNDED UPON EARLIER
TREATIES WITH FRANCE, THE NETHERLANDS, AND SWEDEN.  (FN11)  THE TREATY
OF 1778 WITH FRANCE SPECIFICALLY FREED AMERICAN CITIZENS FROM THE
BURDENS OF TWO RESTRICTIONS ON THE RIGHT OF ALIENS TO DISPOSE OF OR
INHERIT PROPERTY WHICH WERE THEN COMMON IN THE CIVIL LAW COUNTRIES:
THE DROIT D'AUBAINE AND THE DROIT DE DETRACTION.  THE DROIT D'AUBAINE
WAS THE FEUDAL RIGHT OF THE SOVEREIGN TO APPROPRIATE THE PROPERTY OF AN
ALIEN WHO DIED WITHIN THE REALM; AN ASPECT OF THIS DOCTRINE WAS "THE
COMPLEMENTARY INCAPACITY OF AN ALIEN TO INHERIT, EVEN FROM A CITIZEN." 
NIELSEN V. JOHNSON, 279 U.S. 47, 55, N. 2.  (FN12) THE DROIT D'AUBAINE
WAS REPLACED DURING THE 18TH CENTURY BY THE DROIT DE DETRACTION, A TAX
"IMPOSED ON THE RIGHT OF AN ALIEN TO INHERIT  ...  THE PROPERTY OF
PERSONS DYING WITHIN THE REALM," NIELSEN V. JOHNSON, SUPRA, AT 56, N.
2, AND LEVIED UPON THE REMOVAL OF THE INHERITED PROPERTY BY THE ALIEN
FROM THE DECEDENT'S COUNTRY.  (FN13) 

THE 1782 TREATY WITH THE NETHERLANDS AND THE 1783 TREATY WITH SWEDEN
WERE FRAMED MORE GENERALLY.  THEY PROVIDED THAT: 

"THE SUBJECTS OF THE CONTRACTING PARTIES IN THE RESPECTIVE STATES,
MAY FREELY DISPOSE OF THEIR GOODS AND EFFECTS EITHER BY TESTAMENT,
DONATION OR OTHERWISE, IN FAVOUR OF SUCH PERSONS AS THEY THINK PROPER;
AND THEIR HEIRS IN WHATEVER PLACE THEY SHALL RESIDE SHALL RECEIVE THE
SUCCESSION  ... ."  (FN14) 

THE 1785 TREATY WITH PRUSSIA, WHICH IS SUBSTANTIALLY IDENTICAL TO THE
1923 TREATY, DIFFERED FROM THE EARLIER TREATIES IN TWO IMPORTANT
RESPECTS.  FOR ONE THING, IT DEALT SEPARATELY WITH REALTY AND WITH
PERSONALTY.  (FN15)  THIS SEPARATE TREATMENT STEMMED FROM THE FACT THAT
AT COMMON LAW ALIENS COULD FREELY INHERIT PERSONALTY BUT COULD NOT
SUCCEED TO REALTY.  (FN16)  THE CONTINENTAL CONGRESS, APPARENTLY
FEARING THAT UNDER THE ARTICLES OF CONFEDERATION IT LACKED POWER THUS
TO ALTER THE LAWS OF THE STATES, INSTRUCTED THE COMMISSIONERS WHO
NEGOTIATED THE TREATY "THAT NO RIGHTS BE STIPULATED FOR ALIENS TO HOLD
REAL PROPERTY WITHIN THE STATES, THIS BEING UTTERLY INADMISSIBLE BY
THEIR SEVERAL LAWS AND POLICY," BUT THAT A PERSON WHO WOULD INHERIT
REALTY BUT FOR HIS ALIENAGE SHOULD BE PERMITTED TO SELL THE PROPERTY
AND WITHDRAW THE PROCEEDS WITHIN A REASONABLE TIME.  (FN17) 

THE OTHER IMPORTANT DIFFERENCE WAS THAT THE PROVISION OF THE PRUSSIAN
TREATY DEALING WITH THE DISPOSAL AND INHERITANCE OF PERSONALTY, THOUGH
GENERALLY BASED UPON THE CORRESPONDING LANGUAGE IN THE DUTCH AND
SWEDISH TREATIES, WAS ALTERED BY THE ADDITION OF THE PHRASE "WITHIN THE
JURISDICTION OF THE OTHER," SO AS TO READ: 

"THE CITIZENS OR SUBJECTS OF EACH PARTY SHALL HAVE POWER TO DISPOSE
OF THEIR PERSONAL GOODS WITHIN THE JURISDICTION OF THE OTHER, BY
TESTAMENT, DONATION OR OTHERWISE, AND THEIR REPRESENTATIVES, BEING
SUBJECTS OR CITIZENS OF THE OTHER PARTY, SHALL SUCCEED TO THEIR SAID
PERSONAL GOODS  ...  AND DISPOSE OF THE SAME AT THEIR WILL, PAYING SUCH
DUES ONLY AS THE INHABITANTS OF THE COUNTRY WHEREIN THE SAID GOODS ARE,
SHALL BE SUBJECT TO PAY IN LIKE CASES  ...  ." 

THERE IS NO PRECISE INDICATION WHY THIS PHRASE WAS ADDED.  ITS
FUNCTION SEEMS TO HAVE BEEN TO DEFINE MORE CLEARLY THAN THE EARLIER
TREATIES THE CASES IN WHICH DISPOSITION OF PROPERTY REQUIRED PROTECTION
FROM THE DROIT D'AUBAINE, NAMELY THOSE INSTANCES WHEN PROPERTY WAS
DISPOSED OF IN A COUNTRY OTHER THAN THAT OF THE CITIZENSHIP OF THE
OWNER.  UNDER THIS CONSTRUCTION, THE PHRASE WOULD MODIFY THE WORD
"DISPOSE" RATHER THAN THE WORDS "PERSONAL GOODS" (OR "PERSONAL
PROPERTY" IN THE 1923 TREATY).  THE RIGHT OF SUCCESSION WOULD BE
UNAFFECTED, SINCE THE WORDS "SAID PERSONAL GOODS" (OR "SUCH PERSONAL
PROPERTY" IN THE 1923 TREATY) WOULD REFER TO ALL "PERSONAL GOODS" (OR
TO "PERSONAL PROPERTY OF EVERY KIND" IN THE 1923 TREATY) AND NOT MERELY
TO THOSE PERSONAL GOODS WITHIN THE TERRITORY OF THE OTHER PARTY TO THE
TREATY. 

SEVERAL FACTORS POINT TO THE CONCLUSION THAT THIS CONSTRUCTION IS
CORRECT, AND THAT THE PHRASE "WITHIN THE JURISDICTION OF THE OTHER" WAS
NOT INTENDED TO MODIFY THE WORDS "PERSONAL GOODS" AND THEREBY TO LIMIT
THE RIGHT OF SUCCESSION.  THE ADDITION OF THE PHRASE "WITHIN THE
JURISDICTION OF THE OTHER" WAS UNRELATED TO THE PROBLEM OF FREEING
RIGHTS OF SUCCESSION FROM THE DROIT DE DETRACTION, SINCE THAT EXACTION
WAS IMPOSED UPON SUCCESSION BY AN ALIEN TO THE PROPERTY OF ANY PERSON
DYING WITHIN THE REALM, REGARDLESS OF THE CITIZENSHIP OF THE DECEDENT. 
THE PHRASE THEREFORE CANNOT HAVE BEEN INTENDED TO MODIFY THE RIGHT OF
SUCCESSION IN ORDER TO ENLARGE OR CONTRACT THIS FREEDOM. 

MOREOVER, THE TERMS OF THE NEWLY ADDED REAL PROPERTY CLAUSE
AFFIRMATIVELY INDICATE THAT THE "PERSONAL GOODS" CLAUSE OF THE 1785
TREATY (AND THEREFORE THE "PERSONAL PROPERTY" CLAUSE OF THE 1923
TREATY) WAS INTENDED TO CONFER THE RIGHT TO INHERIT PERSONAL PROPERTY
FROM BOTH ALIEN AND CITIZEN DECEDENTS.  THE FIRST DRAFT OF THE 1785
TREATY WAS SUBSTANTIALLY SIMILAR TO THE EARLIER DUTCH AND SWEDISH
TREATIES, AND QUITE CLEARLY WOULD HAVE PERMITTED ALIENS TO SUCCEED TO
REAL OR PERSONAL PROPERTY REGARDLESS OF WHETHER THE DECEDENT DIED IN
HIS OWN COUNTRY.  (FN18)  HOWEVER, AS NOTED EARLIER, THE CONTINENTAL
CONGRESS OUT OF CAUTION INSTRUCTED THE COMMISSIONERS THAT ALIENS SHOULD
NOT BE ALLOWED BY THE TREATY TO SUCCEED TO AND HOLD REAL ESTATE BUT
SHOULD BE LIMITED TO SALE OF THE LAND AND REMOVAL OF THE PROCEEDS. 
THIS INDICATES THAT THE REAL ESTATE CLAUSE WAS INTENDED PURELY AS A
LIMITATION ON THE RIGHTS ACCORDED WITH RESPECT TO PERSONAL PROPERTY AND
WAS NOT SUPPOSED TO CONFER ANY GREATER RIGHTS.  THE REAL PROPERTY
CLAUSE CERTAINLY PERMITTED INHERITANCE FROM BOTH ALIEN AND CITIZEN, FOR
IT ALLOWED SUCCESSION "ON THE DEATH OF ANY PERSON HOLDING REAL
ESTATE."  THIS WAS ACKNOWLEDGED BY THE COURT IN CLARK V. ALLEN, SUPRA,
AT 517, WITH RESPECT TO THE 1923 TREATY.  IT WOULD SEEM TO FOLLOW THAT
THE MORE LIBERAL PERSONAL PROPERTY CLAUSE WAS ALSO INTENDED TO ALLOW
INHERITANCE REGARDLESS OF THE DECEDENT'S NATIONALITY. 

THE CONCLUSION THAT THE PERSONAL PROPERTY CLAUSE OF THE 1785 (AND
HENCE OF THE 1923) TREATY WAS INTENDED TO GRANT A RIGHT OF INHERITANCE
NO MATTER WHAT THE DECEDENT'S CITIZENSHIP FINDS ADDITIONAL SUPPORT IN
THE STATE DEPARTMENT'S INTERPRETATIONS OF SIMILAR TREATY PROVISIONS
DURING THE 19TH CENTURY.  WHEN NEGOTIATING SUBSTANTIALLY IDENTICAL
PROVISIONS IN TREATIES WITH GERMAN STATES IN THE 1840'S, THE THEN
MINISTER TO PRUSSIA, MR. WHEATON, INDICATED HIS BELIEF THAT THE
PROPOSED TREATIES WOULD PROTECT "NATURALIZED GERMANS, RESIDENT IN THE
UNITED STATES, WHO ARE ENTITLED TO INHERIT THE PROPERTY OF THEIR
RELATIONS DECEASED IN GERMANY."  (FN19)  THERE WAS NO SUGGESTION THAT
THE TREATIES WOULD APPLY ONLY TO REAL PROPERTY OR, WITH RESPECT TO
PERSONAL PROPERTY, ONLY TO THE SMALL CLASS OF NATURALIZED GERMANS WHOSE
"RELATIONS" IN GERMANY HAPPENED ALSO TO BE AMERICAN CITIZENS.  IN
RESPONDING TO MR. WHEATON, THE STATE DEPARTMENT INSTRUCTED HIM TO TAKE
AS HIS "GENERAL GUIDE" THE TREATY WITH PRUSSIA AND OTHERS SIMILARLY
WORDED, AND INSTRUCTED HIM THAT THE OBJECT SHOULD BE "THE REMOVAL OF
ALL OBSTRUCTIONS  ...  TO THE WITHDRAWAL FROM THE ONE COUNTRY, BY THE
CITIZENS OR SUBJECTS OF THE OTHER, OF ANY PROPERTY WHICH MAY HAVE BEEN
TRANSFERRED TO THEM BY  ...  WILL, - OR WHICH THEY MAY HAVE INHERITED
AB INTESTATO."  (FN20) 

LATER IN THE CENTURY, AFTER THE FREDERICKSON DECISION, THE STATE
DEPARTMENT SEVERAL TIMES INDICATED THAT IT REGARDED SIMILARLY WORDED
TREATIES AS ASSURING CITIZENS OF ONE COUNTRY THE RIGHT TO INHERIT
PERSONAL PROPERTY OF CITIZENS OF THE OTHER DYING IN THEIR OWN COUNTRY. 
IN 1868 AND 1880 THE DEPARTMENT ASSERTED, UNDER A SIMILARLY WORDED
TREATY, (FN21) THE RIGHT OF AMERICAN CITIZENS TO INHERIT PERSONAL
PROPERTY OF SWISS DECEDENTS WHO DIED IN SWITZERLAND.  (FN22)  IN 1877,
IT TOOK THE SAME POSITION WITH RESPECT TO THE RIGHTS OF RUSSIAN HEIRS
TO INHERIT THE PERSONAL PROPERTY OF AMERICAN DECEDENTS UNDER A LIKE
TREATY WITH RUSSIA.  (FN23)  THE NEGOTIATIONS LEADING TO THE BRITISH
TREATY OF 1899, WHICH HAVE PREVIOUSLY BEEN DESCRIBED, REVEAL THE SAME
ATTITUDE. 

THIS COURSE OF HISTORY, COUPLED WITH THE GENERAL PRINCIPLE THAT
"WHERE A PROVISION OF A TREATY FAIRLY ADMITS OF TWO CONSTRUCTIONS, ONE
RESTRICTING, THE OTHER ENLARGING, RIGHTS WHICH MAY BE CLAIMED UNDER IT,
THE MORE LIBERAL INTERPRETATION IS TO BE PREFERRED," (FN24) LEADS IN MY
OPINION TO THE CONCLUSION THAT ARTICLE IV OF THE 1923 TREATY SHOULD BE
CONSTRUED AS GUARANTEEING TO CITIZENS OF THE CONTRACTING PARTIES THE
RIGHT TO INHERIT PERSONAL PROPERTY FROM A DECEDENT WHO DIES IN HIS OWN
COUNTRY.  I WOULD OVERRULE FREDERICKSON V. LOUISIANA, SUPRA, AND CLARK
V. ALLEN, SUPRA, INSOFAR AS THEY HOLD THE CONTRARY.  CONSIDERATIONS OF
STARE DECISIS SHOULD NOT STAND IN THE WAY OF RECTIFYING TWO DECISIONS
THAT REST ON SUCH INFIRM FOUNDATIONS.  COMPARE SWIFT & CO., INC. V.
WICKHAM, 382 U.S. 111, WITH KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369
U.S. 153.  PROPERLY CONSTRUED, THE 1923 TREATY, WHICH OF COURSE TAKES
PRECEDENCE OVER THE OREGON STATUTE UNDER THE SUPREMACY CLAUSE, ENTITLES
THE APPELLANTS IN THIS CASE TO SUCCEED TO THE PERSONAL AS WELL AS THE
REAL PROPERTY OF THE DECEDENT DESPITE THE STATE STATUTE. 

                                   IV. 

UPON MY VIEW OF THIS CASE, IT WOULD BE UNNECESSARY TO REACH THE ISSUE
WHETHER OREGON'S STATUTE GOVERNING INHERITANCE BY ALIENS AMOUNTS TO AN
UNCONSTITUTIONAL INFRINGEMENT UPON THE FOREIGN RELATIONS POWER OF THE
FEDERAL GOVERNMENT.  HOWEVER, SINCE THIS IS THE BASIS UPON WHICH THE
COURT HAS CHOSEN TO REST ITS DECISION, I FEEL THAT I SHOULD INDICATE
BRIEFLY WHY I BELIEVE THE DECISION TO BE WRONG ON THAT SCORE, TOO. 

AS NOTED EARLIER, THE OREGON STATUTE CONDITIONS AN ALIEN'S RIGHT TO
INHERIT OREGON PROPERTY UPON THE SATISFACTION OF THREE CONDITIONS:  (1)
A RECIPROCAL RIGHT OF AMERICANS TO INHERIT PROPERTY IN THE ALIEN'S
COUNTRY; (2) THE RIGHT OF AMERICANS TO RECEIVE PAYMENT IN THE UNITED
STATES FROM THE ESTATES OF DECEDENTS DYING IN THE ALIEN'S COUNTRY; AND
(3) PROOF THAT THE ALIEN HEIRS OF THE OREGON DECEDENT WOULD RECEIVE THE
BENEFIT, USE, AND CONTROL OF THEIR INHERITANCE WITHOUT CONFISCATION. 
IN CLARK V. ALLEN, SUPRA, THE COURT UPHELD THE CONSTITUTIONALITY OF A
CALIFORNIA STATUTE WHICH SIMILARLY CONDITIONED THE RIGHT OF ALIENS TO
INHERIT UPON RECIPROCITY BUT DID NOT CONTAIN THE OTHER TWO
RESTRICTIONS.  THE COURT IN CLARK DISMISSED AS "FARFETCHED" THE
CONTENTION THAT THE STATUTE UNCONSTITUTIONALLY INFRINGED UPON THE
FEDERAL FOREIGN RELATIONS POWER.  SEE 331 U.S., AT 517.  THE COURT
NOTED THAT CALIFORNIA HAD NOT VIOLATED ANY EXPRESS COMMAND OF THE
CONSTITUTION BY ENTERING INTO A TREATY, AGREEMENT, OR COMPACT WITH
FOREIGN COUNTRIES.  IT SAID THAT "WHAT CALIFORNIA HAS DONE WILL HAVE
SOME INCIDENTAL OR INDIRECT EFFECT IN FOREIGN COUNTRIES.  BUT THAT IS
TRUE OF MANY STATE LAWS WHICH NONE WOULD CLAIM CROSS THE FORBIDDEN
LINE."  IBID. 

IT SEEMS TO ME IMPOSSIBLE TO DISTINGUISH THE PRESENT CASE FROM CLARK
V. ALLEN IN THIS RESPECT IN ANY CONVINCING WAY.  TO SAY THAT THE
ADDITIONAL CONDITIONS IMPOSED BY THE OREGON STATUTE AMOUNT TO SUCH
DISTINCTIONS WOULD BE TO SUGGEST THAT WHILE A STATE MAY LEGITIMATELY
PLACE INHERITANCE BY ALIENS ON A RECIPROCITY BASIS, IT MAY NOT TAKE
MEASURES TO ASSURE THAT RECIPROCITY EXISTS IN PRACTICE AND THAT THE
INHERITANCE WILL ACTUALLY BE ENJOYED BY THE PERSON WHOM THE TESTATOR
INTENDED TO BENEFIT.  THE YEARS SINCE THE CLARK DECISION HAVE REVEALED
SOME INSTANCES IN WHICH STATE COURT JUDGES HAVE DELIVERED INTEMPERATE
OR ILL-ADVISED REMARKS ABOUT FOREIGN GOVERNMENTS IN THE COURSE OF
APPLYING SUCH STATUTES, BUT NOTHING HAS OCCURRED WHICH COULD NOT
READILY HAVE BEEN FORESEEN AT THE TIME CLARK V. ALLEN WAS DECIDED. 

NOR DO I BELIEVE THAT THIS ASPECT OF THE CLARK V. ALLEN DECISION
SHOULD BE OVERRULED, AS MY BROTHER STEWART WOULD HAVE IT.  PRIOR
DECISIONS HAVE ESTABLISHED THAT IN THE ABSENCE OF A CONFLICTING FEDERAL
POLICY OR VIOLATION OF THE EXPRESS MANDATES OF THE CONSTITUTION THE
STATES MAY LEGISLATE IN AREAS OF THEIR TRADITIONAL COMPETENCE EVEN
THOUGH THEIR STATUTES MAY HAVE AN INCIDENTAL EFFECT ON FOREIGN
RELATIONS.  (FN25)  APPLICATION OF THIS RULE TO THE CASE BEFORE US
COMPELS THE CONCLUSION THAT THE OREGON STATUTE IS CONSTITUTIONAL. 
OREGON HAS SO LEGISLATED IN THE COURSE OF REGULATING THE DESCENT AND
DISTRIBUTION OF ESTATES OF OREGON DECEDENTS, A MATTER TRADITIONALLY
WITHIN THE POWER OF A STATE.  SEE ANTE, AT 440.  APART FROM THE 1923
TREATY, WHICH THE COURT FINDS IT UNNECESSARY TO CONSIDER, THERE IS NO
SPECIFIC INTEREST OF THE FEDERAL GOVERNMENT WHICH MIGHT BE INTERFERED
WITH BY THIS STATUTE.  THE APPELLANTS CONCEDE THAT OREGON MIGHT DENY
INHERITANCE RIGHTS TO ALL NONRESIDENT ALIENS.  (FN26)  ASSUMING THAT
THIS IS SO, THE STATUTORY EXCEPTION PERMITTING INHERITANCE BY ALIENS
WHOSE COUNTRIES PERMIT AMERICANS TO INHERIT WOULD SEEM TO BE A MEASURE
WISELY DESIGNED TO AVOID ANY OFFENSE TO FOREIGN GOVERNMENTS AND THUS
ANY CONFLICT WITH GENERAL FEDERAL INTERESTS:  A FOREIGN GOVERNMENT CAN
HARDLY OBJECT TO THE DENIAL OF RIGHTS WHICH IT DOES NOT ITSELF ACCORD
TO THE CITIZENS OF OTHER COUNTRIES.    THE FOREGOING WOULD SEEM TO
ESTABLISH THAT THE OREGON STATUTE IS NOT UNCONSTITUTIONAL ON ITS FACE. 
AND IN FACT THE COURT SEEMS TO HAVE FOUND THE STATUTE UNCONSTITUTIONAL
ONLY AS APPLIED.  ITS NOTION APPEARS TO BE THAT APPLICATION OF THE
PARTS OF THE STATUTE WHICH REQUIRE THAT RECIPROCITY ACTUALLY EXIST AND
THAT THE ALIEN HEIR ACTUALLY BE ABLE TO ENJOY HIS INHERITANCE WILL
INEVITABLY INVOLVE THE STATE COURTS IN EVALUATIONS OF FOREIGN LAWS AND
GOVERNMENTAL POLICIES, AND THAT THIS IS LIKELY TO RESULT IN OFFENSE TO
FOREIGN GOVERNMENTS.  THERE ARE SEVERAL DEFECTS IN THIS RATIONALE.  THE
MOST GLARING IS THAT IT IS BASED ALMOST ENTIRELY ON SPECULATION.  MY
BROTHER DOUGLAS DOES CITE A FEW UNFORTUNATE REMARKS MADE BY STATE COURT
JUDGES IN APPLYING STATUTES RESEMBLING THE ONE BEFORE US. HOWEVER, THE
COURT DOES NOT MENTION, NOR DOES THE RECORD REVEAL, ANY INSTANCE IN
WHICH SUCH AN OCCURRENCE HAS BEEN THE OCCASION FOR A DIPLOMATIC
PROTEST, OR, INDEED, HAS HAD ANY FOREIGN RELATIONS CONSEQUENCE
WHATSOEVER.  (FN27)  THE UNITED STATES SAYS IN ITS BRIEF AS AMICUS
CURIAE THAT IT: 

"DOES NOT  ...  CONTEND THAT THE APPLICATION OF THE OREGON ESCHEAT
STATUTE IN THE CIRCUMSTANCES OF THIS CASE UNDULY INTERFERES WITH THE
UNITED STATES' CONDUCT OF FOREIGN RELATIONS."  (FN28) 

AT AN EARLIER STAGE IN THIS CASE, THE SOLICITOR GENERAL TOLD THIS
COURT: 

"THE DEPARTMENT OF STATE HAS ADVISED US  ...  THAT STATE RECIPROCITY
LAWS, INCLUDING THAT OF OREGON, HAVE HAD LITTLE EFFECT ON THE FOREIGN
RELATIONS AND POLICY OF THIS COUNTRY  ...  . APPELLANTS' APPREHENSION
OF A DETERIORATION IN INTERNATIONAL RELATIONS, UNSUBSTANTIATED BY
EXPERIENCE, DOES NOT CONSTITUTE THE KIND OF 'CHANGED CONDITIONS' WHICH
MIGHT CALL FOR RE-EXAMINATION OF CLARK V. ALLEN."  (FN29) 

ESSENTIALLY, THE COURT'S BASIS FOR DECISION APPEARS TO BE THAT ALIEN
INHERITANCE LAWS AFFORD STATE COURT JUDGES AN OPPORTUNITY TO CRITICIZE
IN DICTUM THE POLICIES OF FOREIGN GOVERNMENTS, AND THAT THESE DICTA MAY
ADVERSELY AFFECT OUR FOREIGN RELATIONS.  IN ADDITION TO FINDING NO
EVIDENCE OF ADVERSE EFFECT IN THE RECORD, I BELIEVE THIS RATIONALE TO
BE UNTENABLE BECAUSE LOGICALLY IT WOULD APPLY TO MANY OTHER TYPES OF
LITIGATION WHICH COME BEFORE THE STATE COURTS.  IT IS TRUE THAT, IN
ADDITION TO THE MANY STATE COURT JUDGES WHO HAVE APPLIED ALIEN
INHERITANCE STATUTES WITH PROPER JUDICIAL DECORUM, (FN3) SOME JUDGES
HAVE SEIZED THE OPPORTUNITY TO MAKE DEROGATORY REMARKS ABOUT FOREIGN
GOVERNMENTS.  HOWEVER, JUDGES HAVE BEEN KNOWN TO UTTER DICTA CRITICAL
OF FOREIGN GOVERNMENTAL POLICIES EVEN IN PURELY DOMESTIC CASES, SO THAT
THE MERE POSSIBILITY OF OFFENSIVE UTTERANCES CAN HARDLY BE THE TEST. 

IF THE FLAW IN THE STATUTE IS SAID TO BE THAT IT REQUIRES STATE
COURTS TO INQUIRE INTO THE ADMINISTRATION OF FOREIGN LAW, I WOULD
SUGGEST THAT THAT CHARACTERISTIC IS SHARED BY OTHER LEGAL RULES WHICH I
CANNOT BELIEVE THE COURT WISHES TO INVALIDATE.  FOR EXAMPLE, THE
UNIFORM FOREIGN MONEY-JUDGMENTS RECOGNITION ACT PROVIDES THAT A FOREIGN
COUNTRY MONEY JUDGMENT SHALL NOT BE RECOGNIZED IF IT "WAS RENDERED
UNDER A SYSTEM WHICH DOES NOT PROVIDE IMPARTIAL TRIBUNALS OR PROCEDURES
COMPATIBLE WITH THE REQUIREMENTS OF DUE PROCESS OF LAW."  (FN31)  WHEN
THERE IS A DISPUTE AS TO THE CONTENT OF FOREIGN LAW, THE COURT IS
REQUIRED UNDER THE COMMON LAW TO TREAT THE QUESTION AS ONE OF FACT AND
TO CONSIDER ANY EVIDENCE PRESENTED AS TO THE ACTUAL ADMINISTRATION OF
THE FOREIGN LEGAL SYSTEM.  (FN32)  AND IN THE FIELD OF CHOICE OF LAW
THERE IS A NONSTATUTORY RULE THAT THE TORT LAW OF A FOREIGN COUNTRY
WILL NOT BE APPLIED IF THAT COUNTRY IS SHOWN TO BE "UNCIVILIZED." 
(FN33) SURELY, ALL OF THESE RULES POSSESS THE SAME "DEFECT" AS THE
STATUTE NOW BEFORE US.  YET I ASSUME THAT THE COURT WOULD NOT FIND THEM
UNCONSTITUTIONAL. 

I THEREFORE CONCUR IN THE JUDGMENT OF THE COURT UPON THE SOLE GROUND
THAT THE APPLICATION OF THE OREGON STATUTE IN THIS CASE CONFLICTS WITH
THE 1923 TREATY OF FRIENDSHIP, COMMERCE AND CONSULAR RIGHTS WITH
GERMANY. 

FN1  DEC. 8, 1923, 44 STAT. 2132, T.S. NO. 725. 

FN2  SEE, E.G., GILES V. MARYLAND, 386 U.S. 66, 80-81; HAMM V. CITY
OF ROCK HILL, 379 U.S. 306, 316; BELL V. MARYLAND, 378 U.S. 226, 237;
COMMUNIST PARTY V. CATHERWOOD, 367 U.S. 389, 392; POE V. ULLMAN, 367
U.S. 497, 503; MACHINISTS V. STREET, 367 U.S. 740, 749. 

FN3  SEE ALSO ALMA MOTOR CO. V. TIMKEN CO., 329 U.S. 129, 136-137. 

FN4  IT IS TRUE, OF COURSE, THAT THE TREATY WOULD DISPLACE THE OREGON
STATUTE ONLY BY VIRTUE OF THE SUPREMACY CLAUSE OF THE CONSTITUTION. 
YET I THINK IT PLAIN THAT THIS FACT DOES NOT RENDER INAPPLICABLE THE
TEACHINGS OF ASHWANDER.  DISPOSITION OF THE CASE PURSUANT TO THE TREATY
WOULD INVOLVE NO INTERPRETATION OF THE CONSTITUTION, AND THIS IS WHAT
THE ASHWANDER RULES SEEK TO BRING ABOUT.  CF. SWIFT & CO., INC. V.
WICKHAM, 382 U.S. 111, 126-127. 

FN5  PETERSEN V. IOWA, 245 U.S. 170; DUUS V. BROWN, 245 U.S. 176;
SKARDERUD V. TAX COMMISSION, 245 U.S. 633. 

FN6  THE STATUTE APPEARS IN THE MAJORITY OPINION IN N. 1, ANTE, AT
430. 

FN7  THE APPELLEES ARGUE THAT A SUBSTANTIAL PART OF THE 1923 TREATY
HAS BEEN TERMINATED OR ABROGATED BY THE 1954 TREATY OF FRIENDSHIP,
COMMERCE AND NAVIGATION WITH THE FEDERAL REPUBLIC OF GERMANY, 7 U.S.T.
1839, T.I.A.S. NO. 3593.  HOWEVER, ARTICLE XXVI OF THE 1954 TREATY
SPECIFIES THAT IT EXTENDS ONLY TO "ALL AREAS OF LAND AND WATER UNDER
THE SOVEREIGNTY OR AUTHORITY OF" THE FEDERAL REPUBLIC OF GERMANY, AND
TO WEST BERLIN.  THE UNITED STATES DOES NOT CHALLENGE THE HOLDING OF
THE OREGON SUPREME COURT THAT THE 1923 TREATY STILL APPLIES TO EAST
GERMANY.  SEE BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 6, N. 5. 

FN8  125 NOTES FROM GREAT BRITAIN, SEPT. 24, 1895, MSS., NAT.
ARCHIVES. 

FN9  TREATY OF MARCH 2, 1899, WITH GREAT BRITAIN, 31 STAT. 1939. 

FN10  JULY, AUG., SEPT., 1785, 8 STAT. 88. 

FN11  SEE ART. XI, TREATY OF FEB. 6, 1778, WITH FRANCE, 8 STAT. 18;
ART. VI, TREATY OF OCT. 8, 1782, WITH THE NETHERLANDS, 8 STAT. 36; ART.
VI, TREATY OF APRIL 3, 1783, WITH SWEDEN, 8 STAT. 64. 

FN12  SEE ALSO 3 VATTEL, THE LAW OF NATIONS OR THE PRINCIPLES OF
NATURAL LAW SEC 112, AT 147-148 (1916 ED.); WHEATON, ELEMENTS OF
INTERNATIONAL LAW SEC 82, AT 115-116 (1866 ED.). 

FN13  SEE BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD SEC. 39,
AT 88 (1916 ED.); 4 MILLER, TREATIES AND OTHER INTERNATIONAL ACTS OF
THE UNITED STATES OF AMERICA 547 (1934). 

FN14  THE QUOTATION IS FROM THE SWEDISH TREATY.  THE WORDING OF THE
DUTCH TREATY DIFFERS ONLY SLIGHTLY. 

FN15  THE EARLIER TREATIES USED THE WORDS "EFFECTS" AND "GOODS,"
WHICH HAVE BEEN HELD TO INCLUDE REALTY.  TODOK V. UNION STATE BANK, 281
U.S. 449, 454. 

FN16  SEE 1 BLACKSTONE, COMMENTARIES 372; 2 KENT, COMMENTARIES 61
63. 

FN17  SEE XXVI JOURNALS OF THE CONTINENTAL CONGRESS 357, 360-361. 

FN18  SEE 2 DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 1783-1789,
AT 111, 116-117. 

FN19  DESPATCH, WHEATON TO LEGARE, JUNE 14, 1843, 3 DESPATCHES,
PRUSSIA, NO. 226, MSS., NAT. ARCHIVES; SEE 4 MILLER, TREATIES AND OTHER
INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA 547-548 (1934). 

FN20  4 MILLER, SUPRA, AT 546, 548. 

FN21  TREATY OF NOV. 25, 1850, WITH SWITZERLAND, 11 STAT. 587, 590. 

FN22  SEE DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES, 1868, PT.
II, 194, 196-197; FOREIGN RELATIONS OF THE UNITED STATES, 1880, 952
953. 

FN23  SEE 4 MOORE, DIGEST OF INTERNATIONAL LAW 6 (1906).  THE TREATY
WAS THE TREATY OF DEC. 18, 1832, WITH RUSSIA, 8 STAT. 444. 

FN24  BACARDI CORP. V. DOMENECH, 311 U.S. 150, 163, CITING JORDAN V.
TASHIRO, 278 U.S. 123, 127; NIELSEN V. JOHNSON, 279 U.S. 47, 52. 

FN25  SEE, E.G., CLARKE V. DECKEBACH, 274 U.S. 392; FRICK V. WEBB,
263 U.S. 326; WEBB V. O'BRIEN, 263 U.S. 313; TERRACE V. THOMPSON, 263
U.S. 197; HEIM V. MCCALL, 239 U.S. 175. 

FN26  BRIEF FOR APPELLANTS 13.  THUS, THIS CASE DOES NOT PRESENT THE
QUESTION WHETHER A UNIFORM DENIAL OF RIGHTS TO NONRESIDENT ALIENS MIGHT
BE A DENIAL OF EQUAL PROTECTION FORBIDDEN BY THE FOURTEENTH AMENDMENT. 
CF. BLAKE V. MCCLUNG, 172 U.S. 239, 260-261. 

FN27  THE COMMUNICATION FROM THE BULGARIAN GOVERNMENT MENTIONED IN
THE MAJORITY OPINION IN N. 7, ANTE, AT 437, APPARENTLY REFERS NOT TO
INTEMPERATE COMMENTS BY STATE-COURT JUDGES BUT TO THE VERY EXISTENCE OF
STATE STATUTES WHICH RESULT IN THE DENIAL OF INHERITANCE RIGHTS TO
BULGARIANS. 

FN28  BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 6, N. 5. 

FN29  MEMORANDUM FOR THE UNITED STATES 5. 

FN30  SEE, E.G., ESTATE OF LARKIN, 65 CAL. 2D 60, 416 P.2D 473. 

FN31 UNIFORM FOREIGN MONEY-JUDGMENTS RECOGNITION ACT SEC. 4(A)(1), 9B
UNIF.  LAWS ANN. 67. 

FN32  SEE GENERALLY SCHLESINGER, COMPARATIVE LAW 31-143 (2D ED.
1959). 

FN33  SEE SLATER V. MEXICAN NATIONAL R. CO., 194 U.S. 120, 129
(HOLMES, J.); AMERICAN BANANA CO. V. UNITED FRUIT CO., 213 U.S. 347,
355-356 (HOLMES, J.); CUBA R. CO. V. CROSBY, 222 U.S. 473, 478 (HOLMES,
J.); WALTON V. ARABIAN AMERICAN OIL CO., 233 F.2D 541, 545. 

MR. JUSTICE WHITE, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT BELOW.  GENERALLY FOR THE REASONS STATED
BY MR. JUSTICE HARLAN IN PART IV OF HIS SEPARATE OPINION, I DO NOT
CONSIDER THE OREGON STATUTE TO BE AN IMPERMISSIBLE INTERFERENCE WITH
FOREIGN AFFAIRS.  NOR AM I PERSUADED THAT THE COURT'S CONSTRUCTION OF
THE 1923 TREATY IN CLARK V. ALLEN, 331 U.S. 503 (1947), AND OF SIMILAR
TREATY LANGUAGE IN EARLIER CASES SHOULD BE OVERRULED AT THIS LATE
DATE. 
..END :






WIRTZ V. BOTTLE BLOWERS ASSN. 389 U.S. 463 


NO. 57.  ARGUED NOVEMBER 8, 1967 - DECIDED JANUARY 15, 1968 - 372 F.2D
86, REVERSED AND REMANDED. 


THE SECRETARY OF LABOR FILED THIS ACTION UNDER SEC. 402(B) OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, SEEKING
INVALIDATION BY THE DISTRICT COURT OF AN ELECTION OF UNION OFFICERS
HELD BY RESPONDENT IN 1963 AND AN ORDER DIRECTING THAT A NEW ELECTION
BE CONDUCTED UNDER THE SECRETARY'S SUPERVISION.  THAT PROVISION
AUTHORIZES THE SECRETARY UPON THE COMPLAINT OF A UNION MEMBER WHO HAS
EXHAUSTED HIS UNION REMEDIES TO FILE SUIT WHEN AN INVESTIGATION GIVES
THE SECRETARY PROBABLE CAUSE TO BELIEVE THAT A UNION ELECTION VIOLATES
THE STANDARDS PRESCRIBED IN SEC 401 OF THE ACT.  IF THE COURT FINDS
THAT A SEC 401 VIOLATION "MAY HAVE AFFECTED THE OUTCOME OF AN
ELECTION," THE ACT PROVIDES THAT THE COURT SHALL DECLARE THE ELECTION
VOID AND DIRECT A NEW ELECTION SUPERVISED BY THE SECRETARY.  THE
COMPLAINT ALLEGED THAT THE UNION HAD VIOLATED SEC. 401(E) OF THE ACT BY
IMPOSING AN UNREASONABLE RESTRICTION ON MEMBERS' ELIGIBILITY TO BE
CANDIDATES AND TO HOLD OFFICE.  ALTHOUGH FINDING THE RESTRICTION
VIOLATIVE OF SEC. 401(E), THE DISTRICT COURT DISMISSED THE SUIT ON THE
GROUND THAT IT WAS NOT ESTABLISHED THAT THE VIOLATION "MAY HAVE
AFFECTED THE OUTCOME" OF THE ELECTION.  WHILE PETITIONER'S APPEAL WAS
PENDING THE UNION IN 1965 HELD ANOTHER REGULAR ELECTION.  THE COURT OF
APPEALS HELD THAT THE 1965 ELECTION MOOTED THE SECRETARY'S CHALLENGE TO
THE 1963 ELECTION AND VACATED THE DISTRICT COURT'S JUDGMENT WITHOUT
REACHING THE MERITS.  HELD:  WHEN THE SECRETARY OF LABOR PROVES THE
EXISTENCE OF A SEC. 401 VIOLATION THAT MAY HAVE AFFECTED THE OUTCOME OF
A CHALLENGED ELECTION, HE IS NOT DEPRIVED OF THE RIGHT TO A COURT ORDER
VOIDING THE CHALLENGED ELECTION AND DIRECTING THAT A NEW ELECTION BE
CONDUCTED UNDER HIS SUPERVISION BECAUSE THE UNION HAS MEANWHILE
CONDUCTED ANOTHER UNSUPERVISED ELECTION.  PP. 467-476. 

WIRTZ, SECRETARY OF LABOR V. LOCAL 153, GLASS BOTTLE BLOWERS ASSOCIATION
OF THE UNITED STATES AND CANADA, AFL-CIO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER, THE SECRETARY OF LABOR, FILED THIS ACTION IN THE DISTRICT
COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA SEEKING A JUDGMENT
DECLARING VOID THE ELECTION OF OFFICERS CONDUCTED BY RESPONDENT LOCAL
UNION ON OCTOBER 18, 1963, AND DIRECTING THAT A NEW ELECTION BE
CONDUCTED UNDER THE SECRETARY'S SUPERVISION. 

OF 1959, 29 U.S.C.  SEC. 482(B), AUTHORIZES THE SECRETARY OF LABOR,
UPON COMPLAINT BY A UNION MEMBER WHO HAS EXHAUSTED HIS INTERNAL UNION
REMEDIES, TO FILE THE SUIT WHEN AN INVESTIGATION OF THE COMPLAINT GIVES
THE SECRETARY PROBABLE CAUSE TO BELIEVE THAT THE UNION ELECTION WAS NOT
CONDUCTED IN COMPLIANCE WITH THE STANDARDS PRESCRIBED IN SEC 401 OF THE
ACT, 29 U.S.C.  SEC 481.  IF THE COURT FINDS THAT A VIOLATION OF SEC
401 OCCURRED WHICH "MAY HAVE AFFECTED THE OUTCOME OF AN ELECTION," IT
"SHALL DECLARE THE ELECTION, IF ANY, TO BE VOID AND DIRECT THE CONDUCT
OF A NEW ELECTION UNDER SUPERVISION OF THE SECRETARY."  (FN1)  THE
ALLEGED ILLEGALITY IN THE ELECTION WAS A VIOLATION OF THE PROVISION OF
SEC. 401(E), 29 U.S.C. SEC.  481(E), THAT IN A UNION ELECTION SUBJECT
TO THE ACT EVERY UNION MEMBER "IN GOOD STANDING SHALL BE ELIGIBLE TO BE
A CANDIDATE AND TO HOLD OFFICE (SUBJECT TO  ...  REASONABLE
QUALIFICATIONS UNIFORMLY IMPOSED)  ...  ."  A LOCAL BYLAW PROVIDED THAT
UNION MEMBERS HAD TO HAVE ATTENDED 75% OF THE LOCAL'S REGULAR MEETINGS
IN THE TWO YEARS PRECEDING THE ELECTION TO BE ELIGIBLE TO STAND FOR
OFFICE.  (FN2)  THE UNION MEMBER WHOSE COMPLAINT INVOKED THE
SECRETARY'S INVESTIGATION HAD NOT BEEN ALLOWED TO STAND FOR PRESIDENT
AT THE 1963 ELECTION BECAUSE HE HAD ATTENDED ONLY 17 OF THE 24 REGULAR
MONTHLY MEETINGS, ONE SHORT OF THE REQUISITE 75%; UNDER THE BYLAWS,
WORKING ON THE NIGHT SHIFT WAS THE ONLY EXCUSABLE ABSENCE AND NONE OF
HIS ABSENCES WAS FOR THIS REASON. 

THE DISTRICT COURT HELD THAT THE MEETING-ATTENDANCE REQUIREMENT WAS
AN UNREASONABLE RESTRICTION UPON THE ELIGIBILITY OF UNION MEMBERS TO BE
CANDIDATES FOR OFFICE AND THEREFORE VIOLATED SEC. 401(E), (FN3) BUT
DISMISSED THE SUIT ON THE GROUND THAT IT WAS NOT ESTABLISHED THAT THE
VIOLATION "MAY HAVE AFFECTED THE OUTCOME" OF THE ELECTION.  244 F.
SUPP. 745.  THE SECRETARY APPEALED TO THE COURT OF APPEALS FOR THE
THIRD CIRCUIT.  THE APPEAL WAS PENDING WHEN THE LOCAL CONDUCTED ITS
NEXT REGULAR BIENNIAL ELECTION IN OCTOBER 1965.  THE COURT OF APPEALS
HELD THAT THE SECRETARY'S CHALLENGE TO THE 1963 ELECTION WAS MOOTED BY
THE 1965 ELECTION, AND THEREFORE VACATED THE DISTRICT COURT JUDGMENT
WITH THE DIRECTION TO DISMISS THE CASE AS MOOT.  IN CONSEQUENCE, THE
COURT DID NOT REACH THE MERITS OF THE QUESTION WHETHER THE UNLAWFUL
MEETING-ATTENDANCE QUALIFICATION MAY HAVE AFFECTED THE OUTCOME OF THE
1963 ELECTION.  372 F.2D 86.  (FN4)  BECAUSE THE QUESTION WHETHER THE
INTERVENING ELECTION MOOTED THE SECRETARY'S ACTION IS IMPORTANT IN THE
ADMINISTRATION OF THE LMRDA, WE GRANTED CERTIORARI, 387 U.S. 904, AND
SET THE CASE FOR ORAL ARGUMENT WITH NO. 58, WIRTZ V. LOCAL 125,
LABORERS' INT'L UNION, POST, P. 477.  WE REVERSE. 

THE HOLDING OF THE COURT OF APPEALS DID NOT REST ON ANY EXPLICIT
STATUTORY PROVISION THAT ON THE HAPPENING OF ANOTHER UNSUPERVISED
ELECTION THE SECRETARY'S CAUSE OF ACTION SHOULD BE DEEMED TO HAVE
"CEASED TO EXIST."  CALIFORNIA V. SAN PABLO & T.R. CO., 149 U.S. 308,
313.  (FN5)  INDEED A LITERAL READING OF SEC. 402(B) WOULD MORE
REASONABLY COMPEL THE CONTRARY CONCLUSION.  FOR NO EXCEPTIONS ARE
ADMITTED BY THE UNAMBIGUOUS WORDING THAT WHEN "THE VIOLATION OF SEC 401
MAY HAVE AFFECTED THE OUTCOME OF AN ELECTION, THE COURT SHALL DECLARE
THE ELECTION, IF ANY, TO BE VOID AND DIRECT THE CONDUCT OF A NEW
ELECTION UNDER SUPERVISION OF THE SECRETARY  ...  ." 

NONETHELESS, THIS DOES NOT END THE INQUIRY.  WE HAVE CAUTIONED
AGAINST A LITERAL READING OF CONGRESSIONAL LABOR LEGISLATION; SUCH
LEGISLATION IS OFTEN THE PRODUCT OF CONFLICT AND COMPROMISE BETWEEN
STRONGLY HELD AND OPPOSED VIEWS, AND ITS PROPER CONSTRUCTION FREQUENTLY
REQUIRES CONSIDERATION OF ITS WORDING AGAINST THE BACKGROUND OF ITS
LEGISLATIVE HISTORY AND IN THE LIGHT OF THE GENERAL OBJECTIVES CONGRESS
SOUGHT TO ACHIEVE.  SEE, E.G., NATIONAL WOODWORK MFRS.  ASSN.  V. NLRB,
386 U.S. 612, 619.  THE LMRDA IS NO EXCEPTION.  (FN6) 

A READING OF THE LEGISLATIVE HISTORY OF THE LMRDA, AND OF TITLE IV IN
PARTICULAR, REVEALS NOTHING TO INDICATE ANY CONSIDERATION OF THE
POSSIBILITY THAT ANOTHER ELECTION MIGHT INTERVENE BEFORE A FINAL
JUDICIAL DECISION OF THE SECRETARY'S CHALLENGE TO A PARTICULAR
ELECTION.  THE ONLY REASONABLE INFERENCE IS THAT THE POSSIBILITY DID
NOT OCCUR TO THE CONGRESS.  (FN7)  WE TURN THEREFORE TO THE QUESTION
WHETHER, IN LIGHT OF THE OBJECTIVES CONGRESS SOUGHT TO ACHIEVE, THE
STATUTE MAY PROPERLY BE CONSTRUED TO TERMINATE THE SECRETARY'S CAUSE OF
ACTION UPON THE FORTUITOUS EVENT OF ANOTHER UNSUPERVISED ELECTION
BEFORE FINAL JUDICIAL DECISION OF THE SUIT. 

THE LMRDA HAS SEVEN SUBDIVISIONS DEALING WITH VARIOUS FACETS BOTH OF
INTERNAL UNION AFFAIRS AND OF LABOR-MANAGEMENT RELATIONS.  THE
ENACTMENT OF THE STATUTE WAS PRECEDED BY EXTENSIVE CONGRESSIONAL
INQUIRIES UPON WHICH CONGRESS BASED THE FINDINGS, PURPOSES, AND POLICY
EXPRESSED IN SEC 2 OF THE ACT, 29 U.S.C. SEC 401.  (FN8)  OF SPECIAL
SIGNIFICANCE IN THIS CASE ARE THE FINDINGS THAT "IN THE PUBLIC
INTEREST" REMEDIAL LEGISLATION WAS NECESSARY TO FURTHER THE OBJECTIVE
"THAT LABOR ORGANIZATIONS  ...  AND THEIR OFFICIALS ADHERE TO THE
HIGHEST STANDARDS OF RESPONSIBILITY AND ETHICAL CONDUCT IN
ADMINISTERING THE AFFAIRS OF THEIR ORGANIZATIONS  ...  ," 29 U.S.C.
SEC. 401(A), THIS BECAUSE CONGRESS FOUND, "FROM RECENT INVESTIGATIONS
IN THE LABOR AND MANAGEMENT FIELDS, THAT THERE HAVE BEEN A NUMBER OF
INSTANCES OF BREACH OF TRUST, CORRUPTION, DISREGARD OF THE RIGHTS OF
INDIVIDUAL EMPLOYEES, AND OTHER FAILURES TO OBSERVE HIGH STANDARDS OF
RESPONSIBILITY AND ETHICAL CONDUCT  ...  " REQUIRING "SUPPLEMENTARY
LEGISLATION THAT WILL AFFORD NECESSARY PROTECTION OF THE RIGHTS AND
INTERESTS OF EMPLOYEES AND THE PUBLIC GENERALLY AS THEY RELATE TO THE
ACTIVITIES OF LABOR ORGANIZATIONS  ...  AND THEIR OFFICERS AND
REPRESENTATIVES."  29 U.S.C. SEC. 401(B). 

TITLE IV'S SPECIAL FUNCTION IN FURTHERING THE OVERALL GOALS OF THE
LMRDA IS TO INSURE "FREE AND DEMOCRATIC" ELECTIONS.  (FN9)  THE
LEGISLATIVE HISTORY SHOWS THAT CONGRESS WEIGHED HOW BEST TO LEGISLATE
AGAINST REVEALED ABUSES IN UNION ELECTIONS WITHOUT DEPARTING NEEDLESSLY
FROM ITS LONG-STANDING POLICY AGAINST UNNECESSARY GOVERNMENTAL
INTRUSION INTO INTERNAL UNION AFFAIRS.  (FN10)  THE EXTENSIVE AND
VIGOROUS DEBATE OVER TITLE IV MANIFESTED A CONFLICT OVER THE EXTENT TO
WHICH GOVERNMENTAL INTERVENTION IN THIS MOST CRUCIAL ASPECT OF INTERNAL
UNION AFFAIRS WAS NECESSARY OR DESIRABLE.  IN THE END THERE EMERGED A
"GENERAL CONGRESSIONAL POLICY TO ALLOW UNIONS GREAT LATITUDE IN
RESOLVING THEIR OWN INTERNAL CONTROVERSIES, AND, WHERE THAT FAILS, TO
UTILIZE THE AGENCIES OF GOVERNMENT MOST FAMILIAR WITH UNION PROBLEMS TO
AID IN BRINGING ABOUT A SETTLEMENT THROUGH DISCUSSION BEFORE RESORT TO
THE COURTS."  CALHOON V. HARVEY, 379 U.S. 134, 140. 

BUT THE FREEDOM ALLOWED UNIONS TO RUN THEIR OWN ELECTIONS WAS
RESERVED FOR THOSE ELECTIONS WHICH CONFORM TO THE DEMOCRATIC PRINCIPLES
WRITTEN INTO SEC. 401.  INTERNATIONAL UNION ELECTIONS MUST BE HELD NOT
LESS OFTEN THAN ONCE EVERY FIVE YEARS AND LOCAL UNION ELECTIONS NOT
LESS OFTEN THAN ONCE EVERY THREE YEARS.  ELECTIONS MUST BE BY SECRET
BALLOT AMONG THE MEMBERS IN GOOD STANDING EXCEPT THAT INTERNATIONAL
UNIONS MAY ELECT THEIR OFFICERS AT A CONVENTION OF DELEGATES CHOSEN BY
SECRET BALLOT.  29 U.S.C. SECS. 481(A), (B).  SPECIFIC PROVISIONS
INSURE EQUALITY OF TREATMENT IN THE MAILING OF CAMPAIGN LITERATURE;
REQUIRE ADEQUATE SAFEGUARDS TO INSURE A FAIR ELECTION, INCLUDING THE
RIGHT OF ANY CANDIDATE TO HAVE OBSERVERS AT THE POLLS AND AT THE
COUNTING OF BALLOTS; GUARANTEE A "REASONABLE OPPORTUNITY" FOR THE
NOMINATION OF CANDIDATES, THE RIGHT TO VOTE WITHOUT FEAR OF REPRISAL,
AND, PERTINENT TO THE CASE BEFORE US, THE RIGHT OF EVERY MEMBER IN GOOD
STANDING TO BE A CANDIDATE, SUBJECT TO "REASONABLE QUALIFICATIONS
UNIFORMLY IMPOSED."  29 U.S.C. SECS. 481(C), (E). 

EVEN WHEN AN ELECTION VIOLATES THESE STANDARDS, THE STATED COMMITMENT
IS TO POSTPONE GOVERNMENTAL INTERVENTION UNTIL THE UNION IS AFFORDED
THE OPPORTUNITY TO REDRESS THE VIOLATION.  THIS IS THE EFFECT OF THE
REQUIREMENT THAT A COMPLAINING UNION MEMBER MUST FIRST EXHAUST HIS
INTERNAL UNION REMEDIES BEFORE INVOKING THE AID OF THE SECRETARY.  29
U.S.C.  SEC. 482(A).  AND IF THE UNION DENIES THE MEMBER RELIEF AND HE
MAKES A TIMELY COMPLAINT TO THE SECRETARY, THE SECRETARY MAY NOT
INITIATE AN ACTION UNTIL HIS OWN INVESTIGATION CONFIRMS THAT A
VIOLATION OF SEC 401 PROBABLY INFECTED THE CHALLENGED ELECTION. 
MOREOVER, THE SECRETARY MAY ATTEMPT TO SETTLE THE MATTER WITHOUT ANY
LAWSUIT; THE OBJECTIVE IS NOT A LAWSUIT BUT TO "AID IN BRINGING ABOUT A
SETTLEMENT THROUGH DISCUSSION BEFORE RESORT TO THE COURTS."  CALHOON V.
HARVEY, SUPRA.  AND IF THE SECRETARY MUST FINALLY INITIATE AN ACTION,
THE ELECTION IS PRESUMED VALID UNTIL THE COURT HAS ADJUDGED IT
INVALID.  29 U.S.C. SEC 482(A).  CONGRESS HAS EXPLICITLY TOLD US THAT
THESE PROVISIONS WERE DESIGNED TO PRESERVE A "MAXIMUM AMOUNT OF
INDEPENDENCE AND SELF-GOVERNMENT BY GIVING EVERY INTERNATIONAL UNION
THE OPPORTUNITY TO CORRECT IMPROPER LOCAL ELECTIONS."  S. REP. NO. 187,
86TH CONG., 1ST SESS., 21, I LEG.  HIST.  417. 

BUT IT IS INCORRECT TO READ THESE PROVISIONS CIRCUMSCRIBING THE TIME
AND BASIS FOR THE SECRETARY'S INTERVENTION AS SOMEHOW CONDITIONING HIS
RIGHT TO RELIEF ONCE THAT INTERVENTION HAS BEEN PROPERLY INVOKED.  SUCH
A CONSTRUCTION WOULD IGNORE THE FACT THAT CONGRESS, ALTHOUGH COMMITTED
TO MINIMAL INTERVENTION, WAS OBVIOUSLY EQUALLY COMMITTED TO MAKING THAT
INTERVENTION, ONCE WARRANTED, EFFECTIVE IN CARRYING OUT THE BASIC AIM
OF TITLE IV.  (FN11)  CONGRESS DELIBERATELY GAVE EXCLUSIVE ENFORCEMENT
AUTHORITY TO THE SECRETARY, HAVING "DECIDED TO UTILIZE THE SPECIAL
KNOWLEDGE AND DISCRETION OF THE SECRETARY OF LABOR IN ORDER BEST TO
SERVE THE PUBLIC INTEREST."  CALHOON V. HARVEY, SUPRA.  IN SO DOING,
CONGRESS REJECTED OTHER PROPOSALS, AMONG THEM PLANS THAT WOULD HAVE
AUTHORIZED SUITS BY COMPLAINING MEMBERS IN THEIR OWN RIGHT.  (FN12)
AND CONGRESS UNEQUIVOCALLY DECLARED THAT ONCE THE SECRETARY ESTABLISHES
IN COURT THAT A VIOLATION OF SEC 401 MAY HAVE AFFECTED THE OUTCOME OF
THE CHALLENGED ELECTION, "THE COURT SHALL DECLARE THE ELECTION  ...  TO
BE VOID AND DIRECT THE CONDUCT OF A NEW ELECTION UNDER SUPERVISION OF
THE SECRETARY  ...  ."  29 U.S.C. SEC. 482(C). 

WE CANNOT AGREE THAT THIS STATUTORY SCHEME IS SATISFIED BY THE
HAPPENSTANCE INTERVENTION OF AN UNSUPERVISED ELECTION.  THE NOTION THAT
THE UNLAWFULNESS INFECTING THE CHALLENGED ELECTION SHOULD BE CONSIDERED
AS WASHED AWAY BY THE FOLLOWING ELECTION DISREGARDS CONGRESS' EVIDENT
CONCLUSION THAT ONLY A SUPERVISED ELECTION COULD OFFER ASSURANCE THAT
THE OFFICERS WHO ACHIEVED OFFICE AS BENEFICIARIES OF VIOLATIONS OF THE
ACT WOULD NOT BY SOME MEANS PERPETUATE THEIR UNLAWFUL CONTROL IN THE
SUCCEEDING ELECTION.  THAT CONCLUSION WAS REACHED IN LIGHT OF THE
ABUSES SURFACED BY THE EXTENSIVE CONGRESSIONAL INQUIRY SHOWING HOW
INCUMBENTS' USE OF THEIR INHERENT ADVANTAGE OVER POTENTIAL RANK AND
FILE CHALLENGERS ESTABLISHED AND PERPETUATED DYNASTIC CONTROL OF SOME
UNIONS.  SEE S. REP. NO. 1417, 85TH CONG., 2D SESS.  THESE ABUSES WERE
AMONG THE "NUMBER OF INSTANCES OF BREACH OF TRUST  ...  AND DISREGARD
OF THE RIGHTS OF INDIVIDUAL EMPLOYEES  ...  " UPON WHICH CONGRESS
RESTED ITS DECISION THAT THE LEGISLATION WAS REQUIRED IN THE PUBLIC
INTEREST.  (FN13) CONGRESS CHOSE THE ALTERNATIVE OF A SUPERVISED
ELECTION AS THE REMEDY FOR A SEC 401 VIOLATION IN THE BELIEF THAT THE
PROTECTIVE PRESENCE OF A NEUTRAL SECRETARY OF LABOR WOULD BEST PREVENT
THE UNFAIRNESS IN THE FIRST ELECTION FROM INFECTING, DIRECTLY OR
INDIRECTLY, THE REMEDIAL ELECTION.  THE CHOICE ALSO REFLECTS A
CONCLUSION THAT UNION MEMBERS MADE AWARE OF UNLAWFUL PRACTICES COULD
NOT ADEQUATELY PROTECT THEIR OWN INTERESTS THROUGH AN UNSUPERVISED
ELECTION.  IT IS CLEAR, THEREFORE, THAT THE INTERVENTION OF AN ELECTION
IN WHICH THE OUTCOME MIGHT BE AS MUCH A PRODUCT OF UNLAWFUL
CIRCUMSTANCES AS THE CHALLENGED ELECTION CANNOT BRING THE SECRETARY'S
ACTION TO A HALT.  ABORTING THE EXCLUSIVE STATUTORY REMEDY WOULD
IMMUNIZE A PROVED VIOLATION FROM FURTHER ATTACK AND LEAVE UNVINDICATED
THE INTERESTS PROTECTED BY SEC 401.  TITLE IV WAS NOT INTENDED TO BE SO
READILY FRUSTRATED. 

RESPONDENT ARGUES THAT GRANTING THE SECRETARY RELIEF AFTER A
SUPERVENING ELECTION WOULD TERMINATE THE NEW OFFICERS' TENURE
PREMATURELY ON MERE SUSPICION.  BUT CONGRESS, WHEN IT SETTLED ON THE
REMEDY OF A SUPERVISED ELECTION, CONSIDERED THE RISK OF INCUMBENTS'
INFLUENCE TO BE SUBSTANTIAL, NOT A MERE SUSPICION.  THE ONLY ASSURANCE
THAT THE NEW OFFICERS DO IN FACT HOLD OFFICE BY REASON OF A TRULY FAIR
AND A DOMOCRATIC VOTE IS TO DO WHAT THE ACT REQUIRES, RERUN THE
ELECTION UNDER THE SECRETARY'S SUPERVISION.    THE COURT OF APPEALS
CONCLUDED THAT IT WOULD SERVE "NO PRACTICAL PURPOSE" TO VOID AN OLD
ELECTION ONCE THE TERMS OF OFFICE CONFERRED HAVE BEEN TERMINATED BY A
NEW ELECTION.  WE HAVE SAID ENOUGH TO DEMONSTRATE THE FALLACY OF THIS
REASONING:  FIRST, IT FAILS TO CONSIDER THE INCUMBENTS' POSSIBLE
INFLUENCE ON THE NEW ELECTION.  SECOND, IT SEEMS TO VIEW THE ACT AS
DESIGNED MERELY TO PROTECT THE RIGHT OF A UNION MEMBER TO RUN FOR A
PARTICULAR OFFICE IN A PARTICULAR ELECTION.  BUT THE ACT IS NOT SO
LIMITED, FOR CONGRESS EMPHATICALLY ASSERTED A VITAL PUBLIC INTEREST IN
ASSURING FREE AND DEMOCRATIC UNION ELECTIONS THAT TRANSCENDS THE
NARROWER INTEREST OF THE COMPLAINING UNION MEMBER. 

WE THEREFORE HOLD THAT WHEN THE SECRETARY OF LABOR PROVES THE
EXISTENCE OF A SEC 401 VIOLATION THAT MAY HAVE AFFECTED THE OUTCOME OF
A CHALLENGED ELECTION, THE FACT THAT THE UNION HAS ALREADY CONDUCTED
ANOTHER UNSUPERVISED ELECTION DOES NOT DEPRIVE THE SECRETARY OF HIS
RIGHT TO A COURT ORDER DECLARING THE CHALLENGED ELECTION VOID AND
DIRECTING THAT A NEW ELECTION BE CONDUCTED UNDER HIS SUPERVISION. 
(FN14) 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE
REMANDED TO THAT COURT WITH DIRECTION TO DECIDE THE MERITS OF THE
SECRETARY'S APPEAL.  IT IS SO ORDERED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FN1  LMRDA SEC 402, 29 U.S.C. SEC 482: 

"(A)  A MEMBER OF A LABOR ORGANIZATION: 

"(1)  WHO HAS EXHAUSTED THE REMEDIES AVAILABLE UNDER THE CONSTITUTION
AND BYLAWS OF SUCH ORGANIZATION AND OF ANY PARENT BODY, OR: 

"(2)  WHO HAS INVOKED SUCH AVAILABLE REMEDIES WITHOUT OBTAINING A
FINAL DECISION WITHIN THREE CALENDAR MONTHS AFTER THEIR INVOCATION, MAY
FILE A COMPLAINT WITH THE SECRETARY WITHIN ONE CALENDAR MONTH
THEREAFTER ALLEGING THE VIOLATION OF ANY PROVISION OF SECTION 401
(INCLUDING VIOLATION OF THE CONSTITUTION AND BYLAWS OF THE LABOR
ORGANIZATION PERTAINING TO THE ELECTION AND REMOVAL OF OFFICERS).  THE
CHALLENGED ELECTION SHALL BE PRESUMED VALID PENDING A FINAL DECISION
THEREON (AS HEREINAFTER PROVIDED) AND IN THE INTERIM THE AFFAIRS OF THE
ORGANIZATION SHALL BE CONDUCTED BY THE OFFICERS ELECTED OR IN SUCH
OTHER MANNER AS ITS CONSTITUTION AND BYLAWS MAY PROVIDE. 

"(B)  THE SECRETARY SHALL INVESTIGATE SUCH COMPLAINT AND, IF HE FINDS
PROBABLE CAUSE TO BELIEVE THAT A VIOLATION OF THIS TITLE HAS OCCURRED
AND HAS NOT BEEN REMEDIED, HE SHALL, WITHIN SIXTY DAYS AFTER THE FILING
OF SUCH COMPLAINT, BRING A CIVIL ACTION AGAINST THE LABOR ORGANIZATION
AS AN ENTITY IN THE DISTRICT COURT OF THE UNITED STATES IN WHICH SUCH
LABOR ORGANIZATION MAINTAINS ITS PRINCIPAL OFFICE TO SET ASIDE THE
INVALID ELECTION, IF ANY, AND TO DIRECT THE CONDUCT OF AN ELECTION OR
HEARING AND VOTE UPON THE REMOVAL OF OFFICERS UNDER THE SUPERVISION OF
THE SECRETARY AND IN ACCORDANCE WITH THE PROVISIONS OF THIS TITLE AND
SUCH RULES AND REGULATIONS AS THE SECRETARY MAY PRESCRIBE  ...  . 

"(C)  IF, UPON A PREPONDERANCE OF THE EVIDENCE AFTER A TRIAL UPON THE
MERITS, THE COURT FINDS: 

     *         *         *   *         * 

"(2)  THAT THE VIOLATION OF SECTION 401 MAY HAVE AFFECTED THE OUTCOME
OF AN ELECTION, THE COURT SHALL DECLARE THE ELECTION, IF ANY, TO BE
VOID AND DIRECT THE CONDUCT OF A NEW ELECTION UNDER SUPERVISION OF THE
SECRETARY AND, SO FAR AS LAWFUL AND PRACTICABLE, IN CONFORMITY WITH THE
CONSTITUTION AND BYLAWS OF THE LABOR ORGANIZATION  ...  . 

"(D)  AN ORDER DIRECTING AN ELECTION, DISMISSING A COMPLAINT, OR
DESIGNATING ELECTED OFFICERS OF A LABOR ORGANIZATION SHALL BE
APPEALABLE IN THE SAME MANNER AS THE FINAL JUDGMENT IN A CIVIL ACTION,
BUT AN ORDER DIRECTING AN ELECTION SHALL NOT BE STAYED PENDING
APPEAL." 

THE COMPLAINING UNION MEMBER INVOKED HIS INTERNAL UNION REMEDIES ON
OCTOBER 24, 1963, AND, NOT HAVING RECEIVED A FINAL DECISION WITHIN
THREE CALENDAR MONTHS, FILED A TIMELY COMPLAINT WITH THE SECRETARY. 

FN2  ARTICLE IX, SEC 1, OF THE INTERNATIONAL CONSTITUTION PROVIDED
THAT: 

"ALL CANDIDATES FOR OFFICE, BEFORE NOMINATION, MUST HAVE ATTENDED 75
PER CENT OF THE MEETINGS FOR AT LEAST TWO YEARS PRIOR TO THE
ELECTION." 

ARTICLE 4, SEC 12, OF THE LOCAL'S BYLAWS PROVIDED: 

"NO MEMBER MAY BE A CANDIDATE UNLESS SAID MEMBER IS IN GOOD STANDING
AND HAS ATTENDED SEVENTY-FIVE PER CENT (75%) OF THE REGULAR LOCAL
MEETINGS SINCE THE LAST LOCAL ELECTION." 

AND SEC 13 FURTHER PROVIDED: 

"IN CASES WHERE MEMBERS HAVE TO WORK AT THE TIME OF MEETINGS, AND SO
NOTIFY THE RECORDING SECRETARY, THEY SHALL BE MARKED PRESENT AT SUCH
MEETINGS, PROVIDED THEY NOTIFY THE SECRETARY IN WRITING WITHIN SEVENTY
TWO (72) HOURS FOLLOWING THE MEETING  ...  ." 

FN3  AS A CONSEQUENCE OF THE MEETING-ATTENDANCE REQUIREMENT, ONLY 11
OF THE 500-MEMBER LOCAL WERE ELIGIBLE TO RUN FOR OFFICE IN 1963.  THE
VICE PRESIDENT AND FINANCIAL SECRETARY RAN FOR RE-ELECTION UNOPPOSED
AND THERE WERE NO CANDIDATES FOR RECORDING SECRETARY AND FOR THREE
TRUSTEE POSITIONS.  THESE POSITIONS WERE FILLED BY APPOINTMENT OF
MEMBERS WHO COULD NOT HAVE QUALIFIED AS CANDIDATES UNDER THE MEETING
ATTENDANCE REQUIREMENT. 

FN4  PENDING DECISION ON THE APPEAL, THE COURT OF APPEALS, ON THE
SECRETARY'S APPLICATION, REMANDED THE CASE TO THE DISTRICT COURT TO
PERMIT THE SECRETARY TO MAKE A POST-JUDGMENT MOTION TO HAVE THE 1965
ELECTION DECLARED INVALID.  THE DISTRICT COURT DENIED THE MOTION.  THAT
DENIAL WAS ALSO APPEALED TO THE COURT OF APPEALS, WHICH AFFIRMED ON THE
GROUND THAT "ABSENT A COMPLAINT BY A UNION MEMBER CHALLENGING THE 1965
ELECTION, THE SECRETARY HAD NO AUTHORITY TO SUE TO ESTABLISH THE
INVALIDITY OF THAT ELECTION."  372 F.2D, AT 88.  OUR DECISION MAKES
UNNECESSARY ANY CONSIDERATION OF THE CORRECTNESS OF THAT HOLDING. 

FN5  THE COURT OF APPEALS ADOPTED THE HOLDING OF THE COURT OF APPEALS
FOR THE SECOND CIRCUIT IN WIRTZ V. LOCAL 410, IUOE, 366 F.2D 438.  THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT IN NO. 58, WIRTZ V. LOCAL 125,
LABORERS' INT'L UNION, SUPRA, ALSO FOLLOWED THE SECOND CIRCUIT. 

FN6  ARCHIBALD COX, WHO ACTIVELY PARTICIPATED IN SHAPING MUCH OF THE
LMRDA, HAS REMARKED: 

"THE LEGISLATION CONTAINS MORE THAN ITS SHARE OF PROBLEMS FOR
JUDICIAL INTERPRETATION BECAUSE MUCH OF THE BILL WAS WRITTEN ON THE
FLOOR OF THE SENATE OR HOUSE OF REPRESENTATIVES AND BECAUSE MANY
ESSENTIAL TO SECURE A MAJORITY.  CONSEQUENTLY, IN RESOLVING THEM THE
COURTS WOULD BE WELL ADVISED TO SEEK OUT THE UNDERLYING RATIONALE
WITHOUT PLACING GREAT EMPHASIS UPON CLOSE CONSTRUCTION OF THE WORDS." 
COX, INTERNAL AFFAIRS OF LABOR UNIONS UNDER THE LABOR REFORM ACT OF
1959, 58 MICH. L. REV. 819, 852 (1960). 

FN7  THERE ARE REFERENCES TO THE DESIRABILITY OF EXPEDITIOUS
DETERMINATIONS OF THE SECRETARY'S SUITS, BUT IT IS CLEAR FROM THE
CONTEXTS IN WHICH THEY APPEAR THAT THE CONCERN WAS TO SETTLE AS QUICKLY
AS PRACTICABLE THE CLOUD ON THE INCUMBENTS' TITLES TO OFFICE AND NOT TO
AVOID POSSIBLE INTERVENTION OF ANOTHER ELECTION.  SEE S. REP. NO. 187,
86TH CONG., 1ST SESS., 21, I LEG.  HIST.  417; 104 CONG. REC. 7954,
LEG.  HIST.  699 (DEPT. LABOR 1964) (HEREAFTER CITED D.L. LEG. 
HIST.)(SENATOR KENNEDY); 104 CONG. REC. 11003, D.L. LEG.  HIST.  710
(SENATOR SMITH); CF. COX, THE ROLE OF LAW IN PRESERVING UNION
DEMOCRACY, 72 HARV. L. REV. 609, 631-634 (1959).  THE PROVISION OF SEC.
402(D), 29 U.S.C. SEC. 482(D), THAT "AN ORDER DIRECTING AN ELECTION
SHALL NOT BE STAYED PENDING APPEAL" IS CONSISTENT WITH THE CONCERN THAT
CHALLENGES TO INCUMBENTS' TITLES TO OFFICE BE RESOLVED AS QUICKLY AS
POSSIBLE. 

FN8  THE BACKGROUND AND LEGISLATIVE HISTORY OF THE 1959 ACT ARE
DISCUSSED IN AARON, THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT
OF 1959, 73 HARV. L. REV. 851 (1960); COX, INTERNAL AFFAIRS OF LABOR
UNIONS, SUPRA, N. 6; LEVITAN & LOWENBERG, THE POLITICS AND PROVISIONS
OF THELANDRUM-GRIFFIN ACT, IN REGULATING UNION GOVERNMENT 28 (ESTEY,
TAFT & WAGNER EDS.  1964); REZLER, UNION ELECTIONS:  THE BACKGROUND OF
TITLE IV OF LMRDA, IN SYMPOSIUM ON LMRDA 475 (SLOVENKO ED. 1961).  AND
SEE COX, PRESERVING UNION DEMOCRACY, SUPRA, N. 7, AT 628-634. 

ALTHOUGH SENATOR KENNEDY, A PRINCIPAL SPONSOR OF THE LEGISLATION,
COUNSELED AGAINST MIXING UP THE INTERESTS OF PROVIDING FOR INTERNAL
UNION DEMOCRACY AND OF ENACTING MEASURES CONCERNED WITH RELATIONS
BETWEEN LABOR AND MANAGEMENT, SEE 105 CONG. REC. 883-885, II LEG. 
HIST.  968-969; CF. S. REP. NO. 187, SUPRA, N. 7, AT 5-7, I LEG. 
HIST.  401-403, NEITHER THE DEBATES NOR THE ACT ITSELF REVEALS
UNWAVERING ADHERENCE TO THIS PRINCIPLE.  SEE, E.G., COX, INTERNAL
AFFAIRS OF LABOR UNIONS, SUPRA, N. 6, AT 831-833. 

FN9  "IT NEEDS NO ARGUMENT TO DEMONSTRATE THE IMPORTANCE OF FREE AND
DEMOCRATIC UNION ELECTIONS.  UNDER THE NATIONAL LABOR RELATIONS AND
RAILWAY LABOR ACTS THE UNION WHICH IS THE BARGAINING REPRESENTATIVE HAS
POWER, IN CONJUNCTION WITH THE EMPLOYER, TO FIX A MAN'S WAGES, HOURS,
AND CONDITIONS OF EMPLOYMENT.  THE INDIVIDUAL EMPLOYEE MAY NOT LAWFULLY
NEGOTIATE WITH HIS EMPLOYER.  HE IS BOUND BY THE UNION CONTRACT.  IN
PRACTICE, THE UNION ALSO HAS A SIGNIFICANT ROLE IN ENFORCING THE
GRIEVANCE PROCEDURE WHERE A MAN'S CONTRACT RIGHTS ARE ENFORCED.  THE
GOVERNMENT WHICH GIVES UNIONS THIS POWER HAS AN OBLIGATION TO INSURE
THAT THE OFFICIALS WHO WIELD IT ARE RESPONSIVE TO THE DESIRES OF THE
MEN AND WOMEN WHOM THEY REPRESENT.  THE BEST ASSURANCE WHICH CAN BE
GIVEN IS A LEGAL GUARANTY OF FREE AND PERIODIC ELECTIONS.  THE
RESPONSIVENESS OF UNION OFFICERS TO THE WILL OF THE MEMBERS DEPENDS
UPON THE FREQUENCY OF ELECTIONS, AND AN HONEST COUNT OF THE BALLOTS. 
GUARANTIES OF FAIRNESS WILL PRESERVE THE CONFIDENCE OF THE PUBLIC AND
THE MEMBERS IN THE INTEGRITY OF UNION ELECTIONS."  S. REP. NO. 187,
SUPRA, N. 7, AT 20; AND H.R. REP. NO. 741, 86TH CONG., 1ST SESS., 15
16, I. LEG.  HIST.  416, 773-774.  SEE S. REP. NO. 187, SUPRA, AT 2-5,
H.R.  REP. NO. 741, SUPRA, AT 1-7, I LEG.  HIST.  398-401, 759-765. 

FN10  SEE S. REP. NO. 187, SUPRA, N. 7, AT 7, I LEG.  HIST.  403: 

"IN ACTING ON THIS BILL (S. 1555) THE COMMITTEE FOLLOWED THREE
PRINCIPLES:  1.  THE COMMITTEE RECOGNIZED THE DESIRABILITY OF MINIMUM
INTERFERENCE BY GOVERNMENT IN THE INTERNAL AFFAIRS OF ANY PRIVATE
ORGANIZATION  ...  .  IN ESTABLISHING AND ENFORCING STATUTORY STANDARDS
GREAT CARE SHOULD BE TAKEN NOT TO UNDERMINE UNION SELF-GOVERNMENT OR
WEAKEN UNIONS IN THEIR ROLE AS COLLECTIVE-BARGAINING AGENTS.  2.  GIVEN
THE MAINTENANCE OF MINIMUM DEMOCRATIC SAFEGUARDS AND DETAILED ESSENTIAL
INFORMATION ABOUT THE UNION, THE INDIVIDUAL MEMBERS ARE FULLY COMPETENT
TO REGULATE UNION AFFAIRS ...  .  3.  REMEDIES FOR THE ABUSES SHOULD BE
DIRECT  ...  .  THE LEGISLATION SHOULD PROVIDE AN ADMINISTRATIVE OR
JUDICIAL REMEDY APPROPRIATE FOR EACH SPECIFIC PROBLEM." 

SEE ALSO IBID.:  "THE BILL REPORTED BY THE COMMITTEE, WHILE IT
CARRIES OUT ALL THE MAJOR RECOMMENDATIONS OF THE MCCLELLAN COMMITTEE,
DOES SO WITHIN A GENERAL PHILOSOPHY OF LEGISLATIVE RESTRAINT." 

THE ELECTION TITLE OF THE SENATE BILL REFERRED TO IN THE COMMITTEE
REPORT WAS ENACTED VIRTUALLY AS DRAFTED BY THE SENATE. 

FN11  SEE, E.G., S. REP. NO. 187, SUPRA, N. 7 AT 34, I LEG.  HIST. 
430: 

"THE COMMITTEE BILL PLACES HEAVY RELIANCE UPON REPORTING AND
DISCLOSURE TO UNION MEMBERS, THE GOVERNMENT AND THE PUBLIC TO EFFECT
CORRECTION OF ABUSES WHERE THEY HAVE OCCURRED.  HOWEVER, THE BILL ALSO
ENDOWS THE SECRETARY OF LABOR WITH BROAD POWER TO INSURE EFFECTUATION
OF ITS OBJECTIVES ...  . 

     *         *         *   *         * 

"  ...  HE HAS POWER TO - ...  (E) INVESTIGATE VIOLATIONS OF THE
ELECTION PROVISIONS AND BRING COURT ACTIONS TO OVERTURN IMPROPERLY HELD
ELECTIONS AND SUPERVISE CONDUCT OF NEW ELECTIONS  ...  . 

"THE COMMITTEE BELIEVES THAT THE BROAD POWERS GRANTED TO THE
SECRETARY BY THIS BILL COMBINED WITH FULL REPORTING AND DISCLOSURE TO
UNION MEMBERS AND THE PUBLIC PROVIDES A MOST EFFECTIVE COMBINATION OF
DEVICES BY WHICH ABUSES CAN BE REMEDIED." 

FN12  S. 748, 86TH CONG., 1ST SESS., I LEG.  HIST.  84, 118-134; H.R.
8342, 86TH CONG., 1ST SESS., I LEG.  HIST.  687, 727-729.  SEE H.R.
CONF. REP. NO. 1147, 86TH CONG., 1ST SESS, 35, I. LEG.  HIST.  939.

FN13  SEE, SUPRA, AT 469-470. 

FN14  THERE IS MUCH DISCUSSION IN THE BRIEFS OF POSSIBLE ALTERNATIVES
TO OUR CONCLUSION, SUCH AS EXPEDITING PROCEEDINGS UNDER SEC 402 TO
BRING ABOUT THEIR FINAL DECISION BEFORE THE NEXT REGULAR ELECTION, OR
INJUNCTIVE RELIEF AGAINST THE CONDUCT OF THAT ELECTION PENDING FINAL
DECISION IN THE SECRETARY'S SUIT.  THAT DISCUSSION, HOWEVER, ASSUMES A
CONSTRUCTION OF THE STATUTE CONTRARY TO THAT WHICH WE HAVE REACHED AND
THEREFORE REQUIRES NO COMMENT. 
..END :



WIRTZ V. LABORERS' UNION 389 U.S. 477 


NO. 58.  ARGUED NOVEMBER 8-9, 1967.  - DECIDED JANUARY 15, 1968.  - 375
F.2D 921, REVERSED AND REMANDED. 


IN THIS COMPANION CASE TO WIRTZ V. LOCAL 153, GLASS BOTTLE BLOWERS
ASSN., ANTE, P. 463, THE SECRETARY OF LABOR SUED UNDER SEC. 402(B) OF
THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT TO INVALIDATE A
GENERAL ELECTION HELD BY RESPONDENT IN 1963 AND THE RUNOFF ELECTION FOR
ONE OFFICE HELD FIVE WEEKS LATER, ALLEGING, IN PART, VIOLATIONS OF SEC.
401(E) IN PERMITTING MEMBERS NOT "IN GOOD STANDING" TO VOTE AND BE
CANDIDATES IN BOTH ELECTIONS.  THE SECRETARY'S INVESTIGATION, FOLLOWING
A COMPLAINT TO HIM ABOUT THE RUNOFF ELCTIONS BY A MEMBER OF RESPONDENT
WHO HAD EXHAUSTED HIS INTERNAL REMEDIES, REVEALED THAT A LARGE NUMBER
OF MEMBERS INELIGIBLE UNDER RESPONDENT'S CONSTITUTION WERE ALLOWED TO
VOTE IN BOTH THE GENERAL AND RUNOFF ELECTIONS THROUGH THE FRAUDULENT
PRACTICE OF A UNION OFFICER, AND THAT 16 OF 27 CANDIDATES IN THE
GENERAL ELECTION WERE SIMILARLY INELIGIBLE.  FINDING THAT THE COMPLAINT
FAILED TO ALLEGE THAT A MEMBER OF RESPONDENT HAD "COMPLAINED
INTERNALLY" ABOUT THE CONDUCT OF THE GENERAL ELECTION AND THAT THE
MEMBER'S CHALLENGE OF THE RUNOFF ELECTION COULD NOT SUPPORT THE
SECRETARY'S CHALLENGE OF THE GENERAL ELECTION, THE DISTRICT COURT
DISMISSED THE PART OF THE COMPLAINT RELATING TO THE GENERAL ELECTION. 
DURING THE PENDENCY OF THE SECRETARY'S APPEAL, THE RESPONDENT HELD ITS
NEXT REGULAR ELECTION OF OFFICERS, WHEREUPON THE COURT OF APPEALS
VACATED THE JUDGMENT OF DISMISSAL AND DIRECTED THE DISTRICT COURT TO
DISMISS AS MOOT THE PORTION OF THE SECRETARY'S COMPLAINT DEALING WITH
THE 1963 GENERAL ELECTION.  HELD: 

1.  THE SECRETARY IS NOT DEPRIVED OF HIS RIGHT TO CHALLENGE THE 1963
GENERAL ELECTION BECAUSE OF THE SUBSEQUENT UNSUPERVISED GENERAL
ELECTION.  WIRTZ V. LOCAL 153, GLASS BOTTLE BLOWERS ASSN., SUPRA,
FOLLOWED.  P. 479. 

2.  ON THE FACTS OF THIS CASE, WHERE RESPONDENT HAD FAIR NOTICE FROM
THE VIOLATION CHARGED BY THE MEMBER WITH RESPECT TO THE RUNOFF ELECTION
THAT THE SAME UNLAWFUL CONDUCT PROBABLY OCCURRED AT THE EARLIER GENERAL
ELECTION, THE SECRETARY IS ENTITLED TO MAINTAIN HIS ACTION CHALLENGING
THE GENERAL ELECTION.  PP. 481-485. 

WIRTZ, SECRETARY OF LABOR V. LOCAL UNION NO. 125, LABORERS'
INTERNATIONAL UNION OF NORTH AMERICAN, AFL-CIO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 57, WIRTZ V. LOCAL 153, GLASS BOTTLE
BLOWERS ASSN., ANTE, P. 463.  PETITIONER, THE SECRETARY OF LABOR, FILED
THE ACTION IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO,
EASTERN DIVISION, UNDER SEC. 402(B) OF THE LABOR-MANAGEMENT REPORTING
AND DISCLOSURE ACT OF 1959, 29 U.S.C. SEC. 482(B).  HIS COMPLAINT
CHALLENGED THE VALIDITY OF A GENERAL ELECTION OF UNION OFFICERS
CONDUCTED BY THE RESPONDENT LOCAL UNION ON JUNE 8, 1963, AND THE
VALIDITY OF A RUNOFF ELECTION FOR THE SINGLE OFFICE OF BUSINESS
REPRESENTATIVE MADE NECESSARY BY A TIE VOTE FOR THAT OFFICE AT THE JUNE
8 ELECTION.  THE COMPLAINT ALLEGED, IN PART, VIOLATIONS OF SEC. 401(E),
29 U.S.C. SEC. 481(E), IN PERMITTING MEMBERS NOT "IN GOOD STANDING" TO
VOTE AND TO RUN FOR OFFICE ON BOTH OCCASIONS.  HOWEVER, THE ONLY
ALLEGATION THAT INTERNAL UNION REMEDIES HAD BEEN EXHAUSTED, AS IS
REQUIRED BY SEC. 402(A), WAS IN REGARD TO THE RUNOFF ELECTION OF JULY
13; THE COMPLAINT STATED THAT THE LOSER IN THE RUNOFF ELECTION, ONE
DIAL, PROTESTED AND APPEALED TO THE GENERAL EXECUTIVE BOARD OF THE
INTERNATIONAL UNION CONCERNING THE CONDUCT OF THAT ELECTION AND, HAVING
RECEIVED A FINAL DENIAL OF HIS PROTEST BY THE GENERAL EXECUTIVE BOARD,
FILED A TIMELY COMPLAINT WITH THE SECRETARY.  THE DISTRICT COURT HELD
THAT THE OMISSION IN THE COMPLAINT OF AN ALLEGATION THAT A MEMBER
COMPLAINED INTERNALLY ABOUT THE CONDUCT OF THE JUNE 8 GENERAL ELECTION
WAS FATAL TO THE SECRETARY'S ACTION ADDRESSED TO THAT ELECTION AND
DISMISSED THAT PART OF THE COMPLAINT.  231 F. SUPP. 590.  THE SECRETARY
APPEALED TO THE COURT OF APPEALS FOR THE SIXTH CIRCUIT.  DURING
PENDENCY OF THE APPEAL, RESPONDENT LOCAL CONDUCTED ITS NEXT REGULAR
TRIENNIAL ELECTION OF OFFICERS.  THE COURT OF APPEALS THEREUPON VACATED
THE JUDGMENT OF DISMISSAL AND REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS THAT THE PORTION OF THE SECRETARY'S COMPLAINT DEALING WITH
THE JUNE 8 ELECTION BE DISMISSED AS MOOT.   375 F.2D 921.  (FN1)  WE
GRANTED CERTIORARI.  387 U.S. 904.  IN LIGHT OF OUR DECISION TODAY IN
WIRTZ V. LOCAL 153, SUPRA, THE ACTION OF THE COURT OF APPEALS MUST BE
REVERSED; WE THERE HELD THAT "  ...  THE FACT THAT THE UNION HAS
ALREADY CONDUCTED ANOTHER UNSUPERVISED ELECTION DOES NOT DEPRIVE THE
SECRETARY OF HIS RIGHT TO A COURT ORDER DECLARING THE CHALLENGED
ELECTION VOID AND DIRECTING THAT A NEW ELECTION BE CONDUCTED UNDER HIS
SUPERVISION."  AT 475-476. 

IN THE CIRCUMSTANCES WE MIGHT REMAND TO THE COURT OF APPEALS TO
DECIDE THE MERITS OF THE SECRETARY'S APPEAL.  THE ISSUE ON THE MERITS
IS WHETHER THE DISTRICT COURT ERRED IN HOLDING THAT THE SECRETARY IN
HIS SUIT MAY NOT CHALLENGE THE ALLEGED VIOLATIONS AFFECTING THE GENERAL
ELECTION OF JUNE 8 BECAUSE DIAL SPECIFICALLY CHALLENGED ONLY THE RUNOFF
ELECTION OF JULY 13 WITH RESPECT TO THE OFFICE OF BUSINESS
REPRESENTATIVE.  THE MERITS OF THIS QUESTION HAVE BEEN FULLY BRIEFED
AND ARGUED IN THIS COURT AND THE UNDERLYING ISSUE OF STATUTORY
CONSTRUCTION HAS ALREADY BEEN THE SUBJECT OF SEVERAL AND CONFLICTING
RULINGS BY VARIOUS FEDERAL COURTS.  (FN2)  THE INTERESTS OF JUDICIAL
ECONOMY ARE THEREFORE BEST SERVED IF WE PROCEED TO RESOLVE THIS
IMPORTANT QUESTION NOW. 

RESPONDENT LOCAL IS GOVERNED BY THE CONSTITUTION AND THE UNIFORM
LOCAL UNION CONSTITUTION OF THE LABORERS' INTERNATIONAL UNION OF NORTH
AMERICAN.  UNDER THE UNIFORM LOCAL UNION CONSTITUTION AS IT EXISTED
DURING THE PERIOD RELEVANT HERE, A MEMBER'S GOOD STANDING WAS LOST BY
FAILURE TO PAY MEMBERSHIP DUES WITHIN A SPECIFIED GRACE PERIOD, AND THE
MEMBER WAS AUTOMATICALLY SUSPENDED WITHOUT NOTICE AND WITH LOSS OF ALL
MEMBERSHIP RIGHTS EXCEPT THE RIGHT TO READMISSION (BUT AS A NEW MEMBER)
UPON PAYMENT OF A FEE.  THE ELIGIBILITY OF VOTERS AND CANDIDATES IN
BOTH ELECTIONS IN THIS CASE WAS DETERMINED BY REFERENCE TO A REPORT TO
THE INTERNATIONAL UNION OF THE NAMES OF MEMBERS FOR WHOM A PER CAPITA
TAX HAD BEEN PAID.  THIS REPORT INCLUDED SOME 50 TO 75 MEMBERS WHO WERE
DELINQUENT IN THE PAYMENT OF THEIR LOCAL DUES AND HAD THEREFORE
ACTUALLY LOST GOOD STANDING UNDER THE PROVISIONS OF THE UNIFORM LOCAL
UNION CONSTITUTION.  THE CAUSE OF THIS PATENT DISREGARD OF THE LOCAL'S
OWN CONSTITUTION WAS THE PRACTICE OF ITS SECRETARY-TREASURER OF PAYING
FROM LOCAL FUNDS THE PER CAPITA TAX OF DELINQUENT MEMBERS SELECTED BY
HIM, THUS MAKING IT APPEAR ON THE PER CAPITA TAX REPORT THAT THOSE
MEMBERS HAD MET THEIR DUES OBLIGATIONS WHEN IN FACT THEY HAD NOT. 
(FN3)  THE SECRETARY'S INVESTIGATION DISCLOSED THAT APPROXIMATELY 50 OF
THE MEMBERS VOTING IN THE JUNE 8 GENERAL ELECTION AND APPROXIMATELY 60
VOTING IN THE JULY 13 RUNOFF ELECTION WERE INELIGIBLE TO VOTE; AND THAT
16 OF THE 27 CANDIDATES FOR OFFICE IN THE GENERAL ELECTION, INCLUDING
DIAL'S OPPONENT WHO ULTIMATELY WON THE RUNOFF, WERE INELIGIBLE FOR THE
SAME REASON. 

THE QUESTION IS ONE OF STATUTORY CONSTRUCTION AND MUST BE ANSWERED BY
INFERENCE SINCE THERE IS LACKING AN EXPLICIT PROVISION REGARDING THE
PERMISSIBLE SCOPE OF THE SECRETARY'S COMPLAINT.  ON THE FACTS OF THIS
CASE WE THINK THE SECRETARY IS ENTITLED TO MAINTAIN HIS ACTION
CHALLENGING THE JUNE 8 GENERAL ELECTION BECAUSE RESPONDENT UNION HAD
FAIR NOTICE FROM THE VIOLATION CHARGED BY DIAL IN HIS PROTEST OF THE
RUNOFF ELECTION THAT THE SAME UNLAWFUL CONDUCT PROBABLY OCCURRED AT THE
EARLIER ELECTION AS WELL.  (FN4)  WE THEREFORE NEED NOT CONSIDER AND
INTIMATE NO VIEW ON THE MERITS OF THE SECRETARY'S ARGUMENT THAT A
MEMBER'S PROTEST TRIGGERS A SEC 402 ENFORCEMENT ACTION IN WHICH THE
SECRETARY WOULD BE PERMITTED TO FILE SUIT CHALLENGING ANY VIOLATION OF
SEC 401 DISCOVERED IN HIS INVESTIGATION OF THE MEMBER'S COMPLAINT. 

WE REJECT THE NARROW CONSTRUCTION ADOPTED BY THE DISTRICT COURT AND
SUPPORTED BY RESPONDENT LIMITING THE SECRETARY'S COMPLAINT SOLELY TO
THE ALLEGATIONS MADE IN THE UNION MEMBER'S INITIAL COMPLAINT.  SUCH A
SEVERE RESTRICTION UPON THE SECRETARY'S POWERS SHOULD NOT BE READ INTO
THE STATUTE WITHOUT A CLEAR INDICATION OF CONGRESSIONAL INTENT TO THAT
EFFECT.  NEITHER THE LANGUAGE OF THE STATUTE NOR ITS LEGISLATIVE
HISTORY PROVIDES SUCH AN INDICATION; INDEED, THE INDICATIONS ARE QUITE
CLEARLY TO THE CONTRARY. 

FIRST, IT IS MOST IMPROBABLE THAT CONGRESS DELIBERATELY SETTLED
EXCLUSIVE ENFORCEMENT JURISDICTION ON THE SECRETARY AND GRANTED HIM
BROAD INVESTIGATIVE POWERS TO DISCHARGE HIS RESPONSIBILITIES, (FN5)
YET INTENDED THE SHAPE OF THE ENFORCEMENT ACTION TO BE IMMUTABLY FIXED
BY THE ARTFULNESS OF A LAYMAN'S COMPLAINT WHICH OFTEN MUST BE BASED ON
INCOMPLETE INFORMATION.  THE EXPERTISE AND RESOURCES OF THE LABOR
DEPARTMENT WERE SURELY MEANT TO HAVE A BROADER PLAY.  (FN6)  SECOND, SO
TO CONSTRICT THE SECRETARY WOULD BE INCONSISTENT WITH HIS VITAL ROLE,
WHICH WE EMPHASIZE TODAY IN WIRTZ V. LOCAL 153, SUPRA, IN PROTECTING
THE PUBLIC INTEREST BOUND UP IN TITLE IV.  THE ACT WAS NOT DESIGNED
MERELY TO PROTECT THE RIGHT OF A UNION MEMBER TO RUN FOR A PARTICULAR
UNION OFFICE IN A PARTICULAR ELECTION.  TITLE IV'S SPECIAL FUNCTION IN
FURTHERING THE GENERAL GOALS OF THE LMRDA IS TO INSURE FREE AND
DEMOCRATIC UNION ELECTIONS, THE REGULATIONS OF THE UNION ELECTORAL
PROCESS ENACTED IN THE TITLE HAVING BEEN REGARDED AS NECESSARY
PROTECTIONS OF THE PUBLIC INTEREST AS WELL AS OF THE RIGHTS AND
INTERESTS OF UNION MEMBERS. 

WE CAN ONLY CONCLUDE, THEREFORE, THAT IT WOULD BE ANOMALOUS TO LIMIT
THE REACH OF THE SECRETARY'S CAUSE OF ACTION BY THE SPECIFICS OF THE
UNION MEMBER'S COMPLAINT.  IN AN ANALOGOUS CONTEXT WE REJECTED SUCH A
LIMITING CONSTRUCTION OF THE NATIONAL LABOR RELATIONS BOARD'S AUTHORITY
TO FASHION UNFAIR LABOR PRACTICE COMPLAINTS.  NLRB V. FANT MILLING CO.,
360 U.S. 301, 306-309; NATIONAL LICORICE CO. V. NLRB, 309 U.S. 350,
369.  (FN7) 

RESPONDENT ARGUES, HOWEVER, THAT THE SPIRIT AND LETTER OF THE
STATUTORY REQUIREMENT THAT THE MEMBER FIRST EXHAUST HIS INTERNAL UNION
REMEDIES BEFORE THE SECRETARY MAY INTERVENE COMPELS THE SUGGESTED
LIMITATION.  IT CONTENDS THAT EVEN TO ALLOW THE SECRETARY TO CHALLENGE
THE EARLIER ELECTION FOR THE SAME VIOLATION ESTABLISHED AS HAVING
OCCURRED IN THE RUNOFF ELECTION WOULD BE INCONSISTENT WITH CONGRESS'
INTENTION TO ALLOW UNIONS FIRST OPPORTUNITY TO REDRESS VIOLATIONS OF
SEC 401.  THIS ARGUMENT IS NOT PERSUASIVE. 

IT IS TRUE THAT THE EXHAUSTION REQUIREMENT WAS REGARDED BY CONGRESS
AS CRITICAL TO THE STATUTE'S OBJECTIVE OF FOSTERING UNION SELF
GOVERNMENT.  BY CHANNELING MEMBERS THROUGH THE INTERNAL APPELLATE
PROCESSES, CONGRESS HOPED TO ACCUSTOM MEMBERS TO UTILIZING THE REMEDIES
MADE AVAILABLE WITHIN THEIR OWN ORGANIZATION; AT THE SAME TIME,
HOWEVER, UNIONS WERE EXPECTED TO PROVIDE RESPONSIBLE AND RESPONSIVE
PROCEDURES FOR INVESTIGATING AND REDRESSING MEMBERS' ELECTION
GRIEVANCES.  THESE INTERTWINED OBJECTIVES ARE NOT DISSERVED BUT
FURTHERED BY PERMITTING THE SECRETARY TO INCLUDE IN HIS COMPLAINT AT
LEAST ANY SEC 401 VIOLATION HE HAS DISCOVERED WHICH THE UNION HAD A
FAIR OPPORTUNITY TO CONSIDER AND REDRESS IN CONNECTION WITH A MEMBER'S
INITIAL COMPLAINT. 

HERE THE SECRETARY SOUGHT TO CHALLENGE THE JUNE 8 GENERAL ELECTION,
ALLEGING THAT THE SAME UNLAWFUL CONDUCT OCCURRING IN THE RUNOFF
AFFECTED THE GENERAL ELECTION HELD ONLY FIVE WEEKS BEFORE.  DIAL'S
COMPLAINT HAD DISCLOSED THE FRAUDULENT PRACTICE WITH RESPECT TO THE
RUNOFF, AND HE WAS APPARENTLY ABLE TO PROVE AT THE HEARING BEFORE THE
GENERAL EXECUTIVE BOARD THAT THAT PRACTICE ENABLED NINE INELIGIBLE
MEMBERS TO VOTE IN THE RUNOFF ELECTION; BUT HIS PROTEST WAS DENIED
BECAUSE HE HAD LOST BY 19 VOTES.  THE SECRETARY'S INVESTIGATION,
HOWEVER, DISCOVERED THAT A MUCH LARGER NUMBER OF INELIGIBLE MEMBERS HAD
BEEN PERMITTED TO VOTE IN THAT RUNOFF ELECTION AND THAT THE SECRETARY
TREASURER RESPONSIBLE FOR THE FALSIFICATION PREPARED THE PER CAPITA TAX
REPORTS USED TO DETERMINE THE ELIGIBILITY OF VOTERS AND CANDIDATES AT
BOTH ELECTIONS.  YET IN THE FACE OF DIAL'S EVIDENCE RAISING THE ALMOST
OVERWHELMING PROBABILITY THAT THE MISCONDUCT AFFECTING THE RUNOFF
ELECTION HAD ALSO OCCURRED AT THE JUNE 8 ELECTION, THE UNION INSISTS
THAT IT WAS UNDER NO DUTY TO EXPAND ITS INQUIRY BEYOND THE SPECIFIC
CHALLENGE TO THE RUNOFF ELECTION MADE BY DIAL.  SURELY THIS IS NOT THE
RESPONSIBLE UNION SELF-GOVERNMENT CONTEMPLATED BY CONGRESS IN ALLOWING
THE UNIONS GREAT LATITUDE IN RESOLVING THEIR OWN INTERNAL
CONTROVERSIES.  IN DEFAULT OF RESPONDENT'S ACTION ON A VIOLATION WHICH
IT HAD A FAIR OPPORTUNITY TO CONSIDER AND RESOLVE IN CONNECTION WITH
DIAL'S PROTEST, THE SECRETARY WAS ENTITLED TO SEEK RELIEF RROM THE
COURT WITH RESPECT TO THE JUNE 8 ELECTION.  AGAIN, CONGRESS, HAVING
GIVEN THE SECRETARY A BROAD INVESTIGATIVE POWER, CANNOT HAVE INTENDED
THAT HIS RIGHT TO RELIEF BE DEFINED BY A COMPLAINING MEMBER'S IGNORANCE
OF THE LAW OR THE FACTS OR BY THE ARTLESSNESS OF THE MEMBER'S PROTEST. 

BECAUSE THE COMPLAINT AS TO THE JUNE 8 ELECTION WAS DISMISSED FOR
DEFICIENCY IN PLEADING, THE FACTUAL ALLEGATIONS HAVE NOT BEEN TRIED. 
WE THEREFORE REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND TO
THAT COURT WITH DIRECTION TO ENTER A JUDGMENT REVERSING THE DISTRICT
COURT'S JUDGMENT OF DISMISSAL AND DIRECTING FURTHER PROCEEDINGS BY THAT
COURT CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE ORDER OF DISMISSAL IN THE DISTRICT COURT WAS ENTERED JULY
14, 1964.  ON APRIL 18, 1966, THE DISTRICT COURT ENTERED AN ORDER
GRANTING THE SECRETARY'S MOTION FOR SUMMARY JUDGMENT REGARDING THE
PORTION OF HIS COMPLAINT DIRECTED TO THE RUNOFF ELECTION OF JULY 13,
1963, FOR THE OFFICE OF BUSINESS REPRESENTATIVE.  THE RUNOFF WAS
CONDUCTED UNDER THE SECRETARY'S SUPERVISION ON JUNE 11, 1966, THE SAME
DAY THE UNION CONDUCTED THE UNSUPERVISED INTERVENING ELECTION.  DIAL
LOST THE RUNOFF. 

FN2  COMPARE WIRTZ V. HOTEL EMPLOYEES UNION, LOCAL 6, 381 F.2D 500;
WIRTZ V. LOCAL 9 ET AL., IUOE, 366 F.2D 911; WIRTZ V. LOCAL 174,
MUSICIANS, 65 L.R.R.M. 2972; AND WIRTZ V. LOCAL 450, IUOE, 63 L. R. R.
M. 2105, WHICH MORE OR LESS SUPPORT THE VIEW OF THE DISTRICT COURT
HEREIN, WITH WIRTZ V. LOCAL 406, IUOE, 254 F. SUPP. 962; WIRTZ V. LOCAL
705, HOTEL EMPLOYEES, 63 L.R.R.M. 2315; AND WIRTZ V. LOCAL 169, HOD
CARRIERS, 246 F. SUPP.  741, WHICH SUPPORT A BROADER VIEW. 

THESE CONFLICTING VIEWS PARTICULARLY JUSTIFY OUR RESOLUTION OF THE
QUESTION WITHOUT REMANDING TO THE COURT OF APPEALS.  IN CONTRAST, THE
ISSUE IN NO. 57, WIRTZ V. LOCAL 153, SUPRA, WHICH WE DID REMAND TO THE
COURT OF APPEALS, WAS WHETHER A STANDARD NOT QUESTIONED BY ANY PARTY
WAS PROPERLY APPLIED TO THE PARTICULAR FACTS. 

FN3  THE INTERNATIONAL CONSTITUTION REQUIRED RESPONDENT LOCAL TO
REMIT TO THE INTERNATIONAL A PER CAPITA TAX PAYMENT OF $1 PER MEMBER
PER MONTH.  THESE PAYMENTS WERE TO BE MADE ONLY FOR MEMBERS WHO HAD IN
FACT MADE CURRENT PAYMENT OF THEIR DUES TO THE LOCAL. 

FN4  SEE WIRTZ V. LOCAL 169, HOD CARRIERS, SUPRA, N. 2, AT 751-753. 

ALTHOUGH THE ELIGIBILITY OF DIAL'S OPPONENT IN THE RUNOFF WAS AN
ISSUE BEFORE THE DISTRICT COURT ON THE SECRETARY'S MOTION FOR SUMMARY
JUDGMENT, THE JUDGMENT WAS GRANTED ON THE GROUND OF VOTER
INELIGIBILITY; THAT JUDGMENT IS NOT BEFORE US.    FN5  THE SECRETARY'S
AUTHORITY UNDER SEC 601, 29 U.S.C. SEC 521, BOTH SUPPLEMENTS HIS
INVESTIGATIVE MANDATE UNDER SEC. 402(B) AND AUTHORIZES INQUIRY WITHOUT
REGARD TO THE FILING OF A COMPLAINT BY A UNION MEMBER.  BUT WHEN THE
SECRETARY INVESTIGATES PURSUANT TO SEC 601 WITHOUT A MEMBER'S
COMPLAINT, HIS REMEDY IS LIMITED TO DISCLOSURE OF VIOLATIONS
DISCOVERED.  WHETHER VIOLATIONS OF SEC. 401 UNCOVERED BY A SEC. 601
INVESTIGATION MAY BE THE PREDICATE OF A MEMBER'S PROTEST TO THE UNION
AND AN ENFORCEMENT PROCEEDING UNDER SEC 402 IF THE UNION DENIES RELIEF
IS A QUESTION WE NEED NOT AND DO NOT REACH IN THIS CASE. 

FN6  SENATOR KENNEDY'S REFERENCE TO THE SECRETARY AS THE COMPLAINING
"UNION MEMBER'S LAWYER," 104 CONG. REC. 10947, LEG.  HIST.  1093 (DEPT.
LABOR 1964), DOES NOT SUPPORT THE DISTRICT COURT'S CONCLUSION.  THE
LAWYER'S FUNCTION IS TO USE HIS SKILLS TO GIVE SHAPE AND SUBSTANCE TO
HIS CLIENT'S OFTEN INCOMPLETELY EXPRESSED COMPLAINT. 

FN7  THE FACT THAT THE NATIONAL LABOR RELATIONS ACT DOES NOT REQUIRE
PRIOR EXHAUSTION OF INTERNAL UNION REMEDIES DOES NOT DESTROY THE
ANALOGY; NOTHING IN OUR HOLDING TODAY DISPENSES WITH THE EXHAUSTION
REQUIREMENT OF SEC. 402(A). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









PENN-CENTRAL MERGER CASES 389 U.S. 486 


DECIDED JANUARY 15, 1968.* - NOS. 778, 779, 830-836, 279 F. SUPP. 316,
AFFIRMED, SUBJECT TO MODIFICATIONS AND CONDITIONS STATED IN THE
OPINION, AND REMANDED; NOS. 663, MISC., AND 664, MISC., PETITIONS FOR
MANDAMUS OR CERTIORARI DENIED; NO. 433, JURISDICTION NOTED, 272 F.
SUPP. 513, VACATED AND REMANDED. 

*NO. 778, BALTIMORE & OHIO RAILROAD CO., ET AL. V. UNITED STATES ET
AL.; NO. 779, NORFOLK & WESTERN RAILWAY CO. V. UNITED STATES ET AL.;
NO. 830, OSCAR GRUSS & SON V. UNITED STATES ET AL.; NO. 831, NEW YORK,
NEW HAVEN & HARTFORD RAILROAD CO. FIRST MORTGAGE 4% BONDHOLDERS
COMMITTEE ET AL. V. UNITED STATES ET AL.; NO. 832, ERIE-LACKAWANNA
RAILROAD CO. ET AL. V. UNITED STATES ET AL.; NO. 833, BOSTON & MAINE
CORP. V. UNITED STATES ET AL.; NO. 834, READING CO. V. UNITED STATES ET
AL.; NO. 835, CITY OF SCRANTON ET AL. V. UNITED STATES ET AL.; AND NO.
836, JOHN HANCOCK MUTUAL LIFE INSURANCE CO. ET AL. V. UNITED STATES ET
AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, ARGUED DECEMBER 4, 1967.  NO. 433, CITY OF
POTTSVILLE V. UNITED STATES ET AL., ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA; NO. 663, MISC.,
BOROUGH OF MOOSIC V. UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA ET AL.; AND NO. 664, MISC., CITY OF SCRANTON
ET AL. V. UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA ET AL., ON MOTIONS FOR LEAVE TO FILE PETITIONS FOR WRITS
OF MANDAMUS AND/OR CERTIORARI TO THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA. 


LAST TERM THIS COURT CONCLUDED (386 U.S. 372) THAT THE INTERSTATE
COMMERCE COMMISSION (ICC) ERRED IN PERMITTING IMMEDIATE CONSUMMATION OF
THE PENN-CENTRAL MERGER WITHOUT DETERMINING THE ULTIMATE FATE OF THE
ERIE-LACKAWANNA, DELAWARE & HUDSON, AND BOSTON & MAINE RAILROADS (THE
"PROTECTED ROADS").  THE ICC THEN CONDUCTED PROCEEDINGS ON THE
PETITIONS OF THOSE THREE LINES FOR INCLUSION IN THE NORFOLK & WESTERN
(N&W) SYSTEM AND ORDERED N&W TO ACQUIRE THE STOCK OF THE THREE
"PROTECTED ROADS" ON PRESCRIBED TERMS.  IN THE REMANDED PENN-CENTRAL
PROCEEDINGS THE ICC RECONSIDERED CERTAIN PROTECTIVE CONDITIONS
PREVIOUSLY DEVISED TO AID THE THREE ROADS, IMPOSED AMENDED PROTECTIVE
CONDITIONS FOR THE INTERIM PERIOD BETWEEN CONSUMMATION OF THE PENN
CENTRAL MERGER AND THE PROTECTED LINES' INCLUSION IN A MAJOR SYSTEM,
AND AGAIN AUTHORIZED THE IMMEDIATE CONSUMMATION OF THE PENN-CENTRAL
MERGER.  A THREE-JUDGE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK ENJOINED IMPLEMENTATION OF THE MERGER ORDER PENDING REVIEW. 
ACTIONS WERE ALSO FILED IN THAT COURT TO SET ASIDE THE ICC'S ORDER TO
INCLUDE THE PROTECTED ROADS IN THE N&W SYSTEM.  SUITS CHALLENGING THE
MERGER AND INCLUSION ORDERS IN OTHER COURTS WERE STAYED TO PERMIT
ORDERLY DISPOSITION OF THE ISSUES IN THE SOUTHERN DISTRICT OF NEW
YORK.  THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
DISMISSED ALL COMPLAINTS ATTACKING THE MERGER AND INCLUSION ORDERS AND
SUSTAINED THE DECISIONS OF THE ICC.  THE BOROUGH OF MOOSIC FILED AN
ACTION IN THE MIDDLE DISTRICT OF PENNSYLVANIA TO SET ASIDE THE ICC'S
ORDERS, IN WHICH ACTION THE CITY OF SCRANTON AND ONE SHAPP INTERVENED. 
THE CITY OF POTTSVILLE'S REQUEST TO INTERVENE WAS DENIED.  THE ACTION
WAS STAYED AND MOOSIC, SCRANTON AND SHAPP FILED PETITIONS FOR MANDAMUS
OR CERTIORARI SEEKING TO CHALLENGE THE STAY, WHICH HAS SINCE BEEN
DISSOLVED.  HELD: 

1.  THE ICC PROPERLY AND LAWFULLY DISCHARGED ITS DUTIES WITH RESPECT
TO THE PENN-CENTRAL MERGER, AS ITS FINDINGS AND CONCLUSIONS ACCORD WITH
SEC 5 OF THE INTERSTATE COMMERCE ACT, AS AMENDED BY THE TRANSPORTATION
ACT OF 1940, AND ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.  PP. 498-502. 

(A)  UNDER THE CONGRESSIONAL POLICY, SET FORTH IN THE ACT, OF
CONSOLIDATING RAILROADS INTO A "LIMITED NUMBER OF SYSTEMS" COMPETITION
IS ONLY ONE OF MANY CONSIDERATIONS IN DETERMINING THE PUBLIC INTEREST
IN THE MERGER.  PP. 499-500. 

(B)  THE EVIDENCE BEFORE THE ICC, WITH NEGLIGIBLE EXCEPTIONS,
ATTESTED TO THE PROBABILITY OF SIGNIFICANT BENEFIT FROM THE MERGER, NOT
ONLY TO THE RAILROADS AND THEIR INVESTORS, BUT ALSO TO SHIPPERS AND THE
GENERAL PUBLIC.  P. 500. 

(C)  THE ICC RETAINS AUTHORITY OVER REDUCTIONS OF SERVICE AND
FACILITIES NOT SPECIFICALLY APPROVED IN THE MERGER PLANS.  P. 501. 

(D)  RAIL SERVICE BY THE MERGED COMPANY WILL REMAIN SUBJECT TO
RESTRAINING PRESSURES AND VIGOROUS COMPETITION FROM OTHER RAILROADS AND
FROM MOTOR, WATER, AND AIR CARRIERS.  P. 501. 

2.  THE ATTACK ON THE ORDERS BY CERTAIN MUNICIPALITIES AND SHAPP
BASED ON THE ICC'S ALLEGED FAILURE TO CONSIDER OR PROPERLY EVALUATE THE
ADVERSE EFFECT OF THE MERGER CONSIDERED IN LIGHT OF THE INCLUSION ORDER
DOES NOT WARRANT REVERSAL OF THE JUDGMENT OF THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK.  PP. 502-506. 

(A)  THESE COMPLAINANTS' PETITIONS FOR MANDAMUS OR CERTIORARI
CHALLENGING THE STAY ORDER OF THE DISTRICT COURT FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA ARE DISMISSED AS MOOT SINCE THE STAY ORDER HAS
BEEN DISSOLVED.  P. 503. 

(B)  IN ITS APRIL 6, 1966, OPINION APPROVING THE MERGER THE ICC
CONSIDERED ARGUMENTS MADE BY PARTICIPATING COMMUNITIES AND STATED THAT
THE "MERGER WILL BENEFIT RATHER THAN HARM THE COMMONWEALTH."  PP. 503
504. 

(C)  CLAIMS OF SPECIFIC INJURY RESULTING FROM REDUCTION OF
COMPETITION BY CURTAILMENT OF SERVICE NOW PROVIDED BY THE "PROTECTED
ROADS" MAY BE ASSERTED IN APPROPRIATE PROCEEDINGS WHEN SUCH CURTAILMENT
IS PROPOSED.  P. 504. 

(D)  THE CITY OF SCRANTON AND SHAPP WERE PARTIES TO THE NEW YORK
PROCEEDINGS AND THE BOROUGH OF MOOSIC HAD ADEQUATE OPPORTUNITY TO JOIN
IN THAT LITIGATION FOLLOWING THE STAY OF PROCEEDINGS IN THE
PENNSYLVANIA COURT, AND ACCORDINGLY THE NEW YORK COURT'S DECISION
WHICH, WITH CERTAIN EXCEPTIONS, IF AFFIRMED, PRECLUDES FURTHER JUDICIAL
REVIEW OF THE ISSUES ON WHICH IT PASSES.  PP. 505-506. 

(E)  SINCE THE PROCEEDINGS IN THE PENNSYLVANIA COURT ARE NOT BEFORE
THIS COURT, EXCEPT FOR THE PETITIONS CHALLENGING THE STAY ORDER WHICH
HAVE BEEN DISMISSED AS MOOT, IT WILL BE THAT COURT'S TASK TO DETERMINE
THE EFFECT OF THE PRESENT DECISION UPON THE PROCEEDINGS BEFORE IT.  P.
506. 

3.  THE DECISION OF THE DISTRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA DENYING INTERVENTION TO THE CITY OF POTTSVILLE IS
VACATED.  PP. 506-507. 

4.  THE APPEALS OF BONDHOLDERS OF THE NEW YORK, NEW HAVEN & HARTFORD
RAILROAD COMPANY (NH), WHICH HAS BEEN UNDER REORGANIZATION SINCE 1961,
CHALLENGING THE ICC'S ORDER OF NOVEMBER 21, 1967, PROVIDING TERMS FOR
NH'S INCLUSION IN THE PENN-CENTRAL SYSTEM AND FOR A LOAN ARRANGEMENT TO
KEEP NH OPERATING, ARE REJECTED.  PP. 507-511. 

(A)  THE MERITS OF THE PROVISIONS OF THAT ORDER ARE NOT BEFORE THIS
COURT; THEY HAVE NOT BEEN REVIEWED BY THE BANKRUPTCY COURT OR BY A
STATUTORY DISTRICT COURT UNDER THE APPLICABLE STATUTE.  P. 509. 

(B)  CONTINUATION OF NH'S OPERATIONS CAN BE REALISTICALLY ASSURED
ONLY UPON EFFECTUATION OF THE MERGER, AND WHILE THE RIGHTS OF
BONDHOLDERS ARE ENTITLED TO RESPECT, THEY DO NOT DICTATE THAT VITAL
RAIL OPERATIONS BE JETTISONED FOR THIS REASON ALONE.  PP. 510-511. 

(C)  THE BONDHOLDERS' OBJECTIONS MAY BE ADJUDICATED IN THE
REORGANIZATION OR UPON PROPER JUDICIAL REVIEW; AND THE ICC HAS RETAINED
JURISDICTION TO MAKE FURTHER NECESSARY ORDERS.  P. 511. 

5.  THE NEW YORK COURT'S CONCLUSION THAT THE INTERIM PROVISIONS FOR
THE "PROTECTED ROADS" ARE ADEQUATE AND CONFORM TO THE PURPOSES INSISTED
ON BY THE ICC AND WHICH THIS COURT SOUGHT TO ENSURE BY ITS DECISION
LAST TERM, IS AFFIRMED.  PP. 511-518. 

(A)  THE PROTECTIVE CONDITIONS DO NOT CONSTITUTE A POOLING
ARRANGEMENT WITHIN THE MEANING OF THE APPLICABLE STATUTE; AND THE ICC'S
HOLDING MAY BE SUSTAINED BY THE SUBSTANTIAL EVIDENCE THAT EVEN IF THESE
PROVISIONS ESTABLISHED A POOLING ARRANGEMENT, "THIS RECORD CLEARLY
SUPPORTS FINDINGS  ... THAT TO PROTECT THESE CARRIERS CLEARLY IS IN THE
INTEREST OF BETTER SERVICE TO THE PUBLIC" AND "WILL NOT UNDULY RESTRAIN
COMPETITION."  PP. 513-514. 

(B)  THE ICC HAS RESERVED JURISDICTION UNDER WHICH IT COULD MODIFY
THESE PROVISIONS SHOULD IMPROPER TRAFFIC DIVERSIONS DEVELOP OR IF THE
CONDITIONS SHOULD OTHERWISE PROVE INEQUITABLE.  PP. 514-515. 

(C)  THIS COURT'S DECISION LAST TERM WAS BASED ON THE ICC'S FAILURE
TO DECIDE THE QUESTION OF THE ULTIMATE HOME OF THE "PROTECTED ROADS,"
AND DOES NOT FORBID CONSUMMATION OF THE MERGER UNTIL THE THREE ROADS
ARE ACTUALLY INCLUDED IN A LARGER SYSTEM.  PP. 516-518. 

6.  THE ICC'S REFUSAL TO PERMIT THE READING COMPANY TO REOPEN THE
MERGER RECORD AND SUBMIT EVIDENCE SUPPORTING ITS CLAIM FOR PROTECTION
SIMILAR TO THAT GIVEN THE "PROTECTED ROADS" IS SUSTAINED, WITHOUT
PREJUDICE TO ANY PROCEEDING BY READING, BASED ON ACTUAL EXPERIENCE, FOR
RELIEF FROM UNDUE PREJUDICE CAUSED BY THE MERGER.  PP. 519-520. 

7.  THE NEW YORK COURT'S DISALLOWANCE OF THE CLAIMS OF THOSE
APPELLANTS WHO CHALLENGE THE ICC'S ORDER FOR INCLUSION OF THE
"PROTECTED ROADS" IN THE N&W SYSTEM IS AFFIRMED.  PP. 520-526. 

(A)  IF, AFTER INCLUSION OF ERIE-LACKAWANNA (E-L) IN THE N&W SYSTEM
BY STOCK ACQUISITION, E-L BONDHOLDERS FEEL THAT N&W HAS ENGAGED IN
CONDUCT INVADING THEIR RIGHTS, THEY MAY APPLY TO THE ICC FOR RELIEF
UNDER ITS RESERVED JURISDICTION.  P. 522. 

(B)  THE FINANCIAL TERMS AND PROPERTY VALUATIONS INVOLVED IN THE
INCLUSION OF THE "PROTECTED ROADS" WERE ESTABLISHED BY THE ICC WITHIN
THE AREA OF FAIRNESS AND EQUITY, WERE REVIEWED IN DETAIL BY THE
DISTRICT COURT AND SUSTAINED, AND THERE IS NO BASIS FOR REVERSING THE
JUDGMENT OF THAT COURT.   PP. 523-526. 

(C)  THE INCLUSION ORDER HAS NO COMPULSIVE OR COERCIVE EFFECT ON THE
ROADS TO BE INCLUDED, AND UNLESS AND UNTIL MODIFIED BY THE ICC, IT
REMAINS AVAILABLE TO THE PROTECTED LINES UPON THE TERMS SPECIFIED.  P.
526. 

(D)  THE CONDITIONS PRESCRIBED BY THE ICC TO PROTECT EMPLOYEES OF THE
ROADS TO BE INCLUDED IN THE N&W SYSTEM ARE SUSTAINED.  THEY ARE SIMILAR
TO THOSE SET BY THE ICC FOR N&W'S EMPLOYEES AT THE TIME OF THE N&W
NICKEL PLATE MERGER.  P. 526. 

PENN-CENTRAL MERGER AND N&W INCLUSION CASES. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES AGAIN BRING BEFORE US PROBLEMS ARISING FROM THE PROGRAM
TO MERGE THE PENNSYLVANIA AND NEW YORK CENTRAL RAILROADS AND RELATED
PROBLEMS PROCEEDING FROM AN INTERSTATE COMMERCE COMMISSION ORDER THAT
CERTAIN RAILROADS BE INCLUDED IN THE NORFOLK & WESTERN (N&W) SYSTEM. 
THE MERGER AND THE INCLUSION ORDERS ARE PART OF A VAST REORGANIZATION
OF RAIL TRANSPORTATION IMPLEMENTING THE CONGRESSIONAL POLICY OF
ENCOURAGING CONSOLIDATION OF THE NATION'S RAILROADS INTO A "LIMITED
NUMBER OF SYSTEMS."  SECTION 407 OF THE TRANSPORTATION ACT OF 1920,
AMENDING SEC. 5(4) OF THE INTERSTATE COMMERCE ACT, 41 STAT. 481.  THAT
POLICY HAS BEEN WITH US, IN ONE FORM OR ANOTHER, FOR MORE THAN 45
YEARS.  THE ORIGINAL IDEA OF THE 1920 ACT, THAT THE ICC WOULD FORMULATE
A NATIONAL PLAN OF CONSOLIDATION, PROVED UNWORKABLE.  IT RAN INTO HEAVY
OPPOSITION FROM CARRIERS AND EVENTUALLY HAD TO BE ABANDONED.  THE 1920
ACT WAS REPLACED BY THE TRANSPORTATION ACT OF 1940, 54 STAT. 898. 
ACT, 54 STAT. 906, 49 U.S.C. SEC. 5(2)(B), GOVERNED THE COMMISSION'S
EXAMINATION OF THE PRESENT TRANSACTIONS.  UNDER THE 1940 ACT, THE
INITIATION OF MERGER AND CONSOLIDATION PROCEEDINGS IS LEFT TO THE
CARRIERS THEMSELVES, AND THE COMMISSION POSSESSES NO POWER TO COMPEL
CARRIERS TO MERGE.  HOWEVER, THE CONGRESSIONAL DIRECTIVE FOR A LIMITED
NUMBER OF RAILROAD SYSTEMS HAS NOT BEEN CHANGED.  THE ONLY CHANGE HAS
BEEN IN THE MEANS OF ACHIEVING THAT GOAL.  SEE GENERALLY ST. JOE PAPER
CO. V. ATLANTIC COAST LINE R. CO., 347 U.S. 298, 315-321
(APPENDIX)(1954). 

THE PENNSYLVANIA AND THE NEW YORK CENTRAL DOMINATE RAIL
TRANSPORTATION IN THE NORTHEAST.  THEIR FREIGHT OPERATIONS EXTEND OVER
SOME 20,000 MILES OF ROAD IN 14 STATES AND CANADA.  THEY ARE THE TWO
LARGEST PASSENGER CARRYING RAILROADS IN THE UNITED STATES.  IN 1965
THEIR COMBINED OPERATING REVENUE SURPASSED $1,500,000,000 AND THEIR
COMBINED NET INCOME WAS MORE THAN $75,000,000.  AS INDEPENDENT LINES,
PENNSYLVANIA AND NEW YORK CENTRAL ARE, TO SOME EXTENT, IN DIRECT
COMPETITION FOR RAIL TRAFFIC.  THERE ARE 32 URBAN AREAS IN WHICH THE
TWO LINES ARE IN COMPETITION WITH EACH OTHER AND IN WHICH NO OTHER RAIL
FACILITIES ARE AVAILABLE.  THE TWO ROADS OPERATE AT 160 COMMON POINTS
OR JUNCTIONS AND HAVE A SUBSTANTIAL AMOUNT OF PARALLEL TRACKAGE AND
ROUTES.  THE PROPOSED MERGER WHICH THE ICC HAS APPROVED CONTEMPLATES
THE UNIFICATION OF THESE VAST ROADS AND, AS TIME GOES ON, THE
RATIONALIZATION AND ELIMINATION OF SOME OF THE DUAL FACILITIES AND
SERVICES IN VARIOUS AREAS AND IN VARIOUS RESPECTS.  THE MERGER WILL
RESULT IN "ENORMOUS SAVINGS IN TRANSIT TIME."  IT IS ESTIMATED THAT IN
EIGHT YEARS, THE SAVINGS IN EXPENSE WILL AMOUNT TO MORE THAN
$80,000,000 ANNUALLY.  SEE BALTIMORE & OHIO R. CO. V. UNITED STATES,
386 U.S. 372, 379-381 (1967). 

AT THE SAME TIME THE COMBINATION OF THESE TWO ROADS WILL DIRECTLY AND
ADVERSELY AFFECT VARIOUS SMALLER RAILROADS IN THE SERVICE AREA BECAUSE
OF THE MORE EFFECTIVE COMPETITIVE SERVICE THAT THE COMBINED SYSTEM WILL
OFFER AND BECAUSE OF THE TENDENCY OF THE COMBINED ROADS, UNLESS
RESTRAINED BY LAW, TO FAVOR THEIR OWN SYSTEM RATHER THAN TO SHARE
TRAFFIC BY INTERCHANGE WITH NONSYSTEM ROADS. 

IN BRIEF, THE ANTECEDENTS OF THE ISSUES BEFORE US ARE AS FOLLOWS:
THE PENN-CENTRAL MERGER HAS BEEN UNDER CONSIDERATION BY THE PARTIES AND
THE COMMISSION FOR ABOUT 10 YEARS.  IT WAS PRECEDED BY THE VAST N&W
NICKEL PLATE MERGER, WHICH THE COMMISSION APPROVED IN 1964.  THAT
TRANSACTION, WHICH, IT IS ANTICIPATED, WILL EVENTUALLY PRODUCE SAVINGS
FOR THE N&W SYSTEM OF OVER $29,000,000 ANNUALLY, RESULTED IN A LARGE
RAIL NETWORK COVERING SOME 7,000 MILES OF TRACK AND EXTENDING IN THE
NORTH FROM DES MOINES AND KANSAS CITY TO BUFFALO AND PITTSBURGH, AND IN
THE SOUTHERN TIER FROM CINCINNATI TO NORFOLK.  SEE NORFOLK & WESTERN
RAILWAY CO. AND NEW YORK, CHICAGO & ST. LOUIS RAILROAD CO. - MERGER,
ETC., 324 I.C.C. 1 (1964).  THE TRANSACTION WAS NOT PRESENTED TO THIS
COURT FOR REVIEW. 

IN 1962 THE PARTIES TO THE PENN-CENTRAL TRANSACTION SIGNED AN
AGREEMENT OF MERGER INCLUDING 36 RAIL CARRIERS.  THE MERGER AGREEMENT
DID NOT INCLUDE THE NEW YORK, NEW HAVEN & HARTFORD RAILROAD (NH),
ALTHOUGH THAT ROAD REQUESTED INCLUSION. 

FOLLOWING THE MERGER AGREEMENT, THE PARTIES SUBMITTED THE PROPOSAL TO
THE COMMISSION FOR APPROVAL UNDER SEC. 5(2) OF THE INTERSTATE COMMERCE
ACT.  EXHAUSTIVE HEARINGS WERE HELD IN WHICH STATES, MUNICIPALITIES,
RAILROADS, SHIPPERS, AND PUBLIC BODIES - SOME 200 PARTIES IN ALL - TOOK
PART.  THE COMMISSION'S OWN STAFF PARTICIPATED EXTENSIVELY AS DID THE
DEPARTMENT OF JUSTICE ACTING FOR AFFECTED INTERESTS OF THE UNITED
STATES OTHER THAN THE REGULATORY FUNCTIONS OF THE COMMISSION.  ALL
PARTICIPANTS, WITH RELATIVELY MINOR EXCEPTIONS TO WHICH WE SHALL LATER
ADVERT, AGREED THAT THE MERGER ITSELF WOULD BE IN THE PUBLIC INTEREST. 
THERE WERE SHARP DIFFERENCES, HOWEVER, WITH RESPECT TO CERTAIN ISSUES. 
THESE PRIMARILY CONCERNED THE PROVISIONS TO BE MADE FOR THREE SMALLER
LINES AFFECTED BY THE PROPOSED MERGER:  THE ERIE-LACKAWANNA (E-L),
DELAWARE & HUDSON (D&H), AND BOSTON & MAINE (B&M) RAILROADS.  THE
COMMISSION APPROVED IMMEDIATE CONSUMMATION OF THE MERGER, SUBJECT TO A
RESERVATION OF JURISDICTION TO ESTABLISH PROTECTIVE PROVISIONS FOR THE
THREE ROADS.  PENNSYLVANIA RAILROAD CO. - MERGER - NEW YORK CENTRAL
RAILROAD CO., 327 I.C.C.  475 (1966).  ITS ORDER WAS APPROVED BY A
THREE-JUDGE COURT IN THE SOUTHERN DISTRICT OF NEW YORK.  ERIE
LACKAWANNA R. CO. V. UNITED STATES, 259 F. SUPP. 964 (1966). 

AT THE LAST TERM OF COURT, WE REVERSED.  WE NOTED THAT THE COMMISSION
ITSELF HAD FOUND THAT THE SURVIVAL OF THE E-L, D&H AND B&M WAS
ESSENTIAL TO THE PUBLIC INTEREST AND THAT THESE ROADS WOULD BE SO
SERIOUSLY AFFECTED BY THE COMPETITION OF THE MERGED COMPANY THAT THEY
MIGHT NOT BE ABLE TO SURVIVE UNLESS ADEQUATE PROTECTIVE ARRANGEMENTS
WERE MADE.  IN THESE CIRCUMSTANCES WE CONCLUDED THAT THE COMMISSION
SHOULD HAVE DETERMINED THE MEANS TO PRESERVE THE "PROTECTED ROADS," ON
BOTH AN INTERIM AND A PERMANENT BASIS, BEFORE PERMITTING CONSUMMATION
OF THE MERGER.  WE EXPRESSLY STATED THAT WE WERE NOT PASSING UPON THE
VALIDITY OF THE MERGER OR THE "PERIPHERAL POINTS POSED BY THE VARIOUS
PARTIES."  BALTIMORE & OHIO R. CO. V. UNITED STATES, SUPRA, AT 378. 

THE COURT NOTED THAT IN 1965 EACH OF THE THREE "PROTECTED ROADS" HAD
FILED APPLICATIONS FOR INCLUSION IN THE N&W SYSTEM, AND THAT THESE WERE
PENDING BEFORE THE COMMISSION IN THE N&W-NICKEL PLATE MERGER CASE
PURSUANT TO THE COMMISSION'S CONTINUING JURISDICTION OVER THOSE
PROCEEDINGS.  WE FURTHER NOTED THAT THE COMMISSION, PURSUANT TO ITS
POWER UNDER SEC 5 OF THE ACT TO REQUIRE AS A CONDITION OF APPROVAL OF A
MERGER THAT OTHER RAILROADS BE INCLUDED IN THE MERGER, HAD OBLIGATED
THE MERGED N&W SYSTEM TO INCLUDE THE E-L, D&H, AND B&M IF THE
COMMISSION SHOULD SO DIRECT, UPON SUCH EQUITABLE TERMS AS THE
COMMISSION MIGHT PRESCRIBE.  WE STATED THAT IF THE THREE PROTECTED
ROADS WERE ORDERED TO BE INCLUDED IN THE N&W SYSTEM, "SUCH ACTION WOULD
PROVIDE THE SOLUTION TO THE PROBLEM OF THE NECESSARY AND INDISPENSABLE
PROTECTION TO THE THREE RAILROADS THAT THE COMMISSION FOUND
PREREQUISITE TO THE MERGER."  386 U.S., AT 390. 

IN ACCORDANCE WITH OUR REMAND OF THE PENN-CENTRAL MERGER CASE, THE
COMMISSION CONDUCTED FURTHER PROCEEDINGS IN THE N&W CASE ON THE PENDING
PETITIONS OF THE THREE ROADS.  ON JUNE 9, 1967, IT ISSUED ITS DECISION
TO THE EFFECT THAT "INCLUSION OF THE PETITIONERS IN THE N&W SYSTEM IS
PREFERABLE TO THEIR INCLUSION IN THE PENN-CENTRAL," AND ORDERED N&W TO
ACQUIRE THE STOCK OF THE THREE ROADS ON PRESCRIBED TERMS.  NORFOLK &
WESTERN RAILWAY CO. AND NEW YORK, CHICAGO & ST. LOUIS RAILROAD CO. -
MERGER, ETC., 330 I.C.C. 780, 796 (1967).  AT THE SAME TIME, IN THE
REMANDED PENN-CENTRAL MERGER PROCEEDINGS, THE COMMISSION RECONSIDERED
CERTAIN PROTECTIVE CONDITIONS IT HAD PREVIOUSLY DEVISED TO AID THE
THREE ROADS, IMPOSED AMENDED PROTECTIVE CONDITIONS TO OPERATE IN THE
INTERIM BETWEEN CONSUMMATION OF THE PENN-CENTRAL MERGER AND THE
PROTECTED LINES' INCLUSION IN A MAJOR RAILROAD SYSTEM,  (FN1) AND AGAIN
AUTHORIZED THE IMMEDIATE CONSUMMATION OF THE PENN-CENTRAL MERGER. 
PENNSYLVANIA RAILROAD COMPANY - MERGER - NEW YORK CENTRAL RAILROAD
COMPANY, 330 I.C.C. 328 (1967). 

ON JULY 3, 1967, ON APPLICATION OF PARTIES OPPOSING THE COMMISSION'S
MERGER ORDER, THE THREE-JUDGE DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK ENJOINED IMPLEMENTATION OF THAT ORDER PENDING THE DECISION
OF THAT COURT ON REVIEW.  ACTIONS WERE ALSO FILED BY SEVERAL PARTIES IN
THE SAME COURT TO SET ASIDE THE ORDER OF THE COMMISSION REQUIRING THE
N&W TO INCLUDE THE THREE PROTECTED ROADS IN ITS SYSTEM.  SUITS
CHALLENGING BOTH THE MERGER AND INCLUSION ORDERS WERE INSTITUTED IN
OTHER COURTS, BUT WERE STAYED SO AS TO PERMIT ORDERLY DISPOSITION OF
THE BASIC ISSUES IN THE SOUTHERN DISTRICT OF NEW YORK.  (FN2)  AFTER
EXPEDITED PROCEEDINGS IN THAT COURT, ALL COMPLAINTS ATTACKING THE
MERGER AND THE INCLUSION ORDERS WERE DISMISSED (FN3) AND THE DECISIONS
OF THE INTERSTATE COMMERCE COMMISSION IN BOTH THE MERGER AND THE
INCLUSION PROCEEDINGS WERE SUSTAINED.  279 F. SUPP. 316.  VARIOUS OF
THE PARTIES THEN SOUGHT RELIEF IN THIS COURT.  BECAUSE OF THE
IMPORTANCE AND URGENCY OF THE MATTER, WE GRANTED A FURTHER STAY OF THE
MERGER ORDER, CONSOLIDATED ALL PROCEEDINGS THAT WERE BEFORE US RELATING
TO THE MERGER AND INCLUSION DECISIONS, AND EXPEDITED CONSIDERATION
THEREOF.  SEE POST, P. 946. 

WE HAVE BEFORE US NINE APPEALS, ON BEHALF OF 17 PARTIES, FROM THE
DECISION OF THE DISTRICT COURT.  ALSO DOCKETED ARE TWO RELATED
PETITIONS FOR MANDAMUS OR CERTIORARI TO THE DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA, AND ONE APPEAL FROM THAT COURT. 

THE PARTICULAR CONTENTIONS URGED UPON US, IN THIS MULTIPLICITY OF
PROCEEDINGS, ARE MANY AND VARIED.  IN GENERAL, HOWEVER, THE ISSUES MAY
BE ARTICULATED AS FOLLOWS:  HAS THE MANDATE OF THIS COURT BEEN
FULFILLED, IN THAT APPROPRIATE PROVISION HAS NOW BEEN MADE FOR THE
THREE SMALLER ROADS?  ARE THE TERMS OF THE ORDER PROVIDING FOR
INCLUSION OF THE PROTECTED ROADS IN THE N&W SYSTEM FAIR AND EQUITABLE
AND IN THE PUBLIC INTEREST?  DID THE DISTRICT COURT ERR IN REFUSING TO
ENJOIN CONSUMMATION OF THE PENN-CENTRAL MERGER?  HAS ADEQUATE PROVISION
BEEN MADE FOR RESOLUTION OF THE "PERIPHERAL" ISSUES PRESENTED BY THE
PARTIES, WHICH WOULD NOT BE FORECLOSED BY A DECISION AUTHORIZING THE
CONSUMMATION OF THE MERGER AND INCLUSION OF THE PROTECTED ROADS IN THE
N&W?

                            I. THE MERGER DECISION. 

                               A. IN GENERAL. 

MOST OF THE PARTIES BEFORE US ARE IN ACCORD THAT THE MERGER IS IN THE
PUBLIC INTEREST AND SHOULD BE CONSUMMATED AS PROMPTLY AS POSSIBLE. 
THOSE URGING IMMEDIATE CONSUMMATION BEFORE THIS COURT INCLUDE THE
DEPARTMENT OF JUSTICE AND THE COMMISSION, THE STATES OF PENNSYLVANIA,
CONNECTICUT, RHODE ISLAND, NEW YORK, MASSACHUSETTS, AND NEW JERSEY; THE
RAILWAY LABOR EXECUTIVES' ASSOCIATION; THE TRUSTEES OF THE NH; THE
PENNSYLVANIA AND NEW YORK CENTRAL RAILROADS; B&M; AND, IN SUBSTANCE,
THE E-L, D&H, AND N&W AND ITS ALLIES.  WHILE THIS CONSENSUS HAS REDUCED
THE ATTACKS UPON THE MERITS OF THE MERGER TO A MINIMUM, CONSIDERING THE
VAST SIZE AND IMPLICATIONS OF THE TRANSACTION, WE MUST NEVERTHELESS
ADDRESS OURSELVES TO THE BASIC MERITS OF THE MERGER AS WELL AS TO THE
SPECIFIC OBJECTIONS THAT ARE BEFORE US. 

WITH RESPECT TO THE MERITS OF THE MERGER, HOWEVER, OUR TASK IS
LIMITED.  WE DO NOT INQUIRE WHETHER THE MERGER SATISFIES OUR OWN
CONCEPTION OF THE PUBLIC INTEREST.  DETERMINATION OF THE FACTORS
RELEVANT TO THE PUBLIC INTEREST IS ENTRUSTED BY THE LAW PRIMARILY TO
THE COMMISSION, SUBJECT TO THE STANDARDS OF THE GOVERNING STATUTE.  THE
JUDICIAL TASK IS TO DETERMINE WHETHER THE COMMISSION HAS PROCEEDED IN
ACCORDANCE WITH LAW AND WHETHER ITS FINDINGS AND CONCLUSIONS ACCORD
WITH THE STATUTORY STANDARDS AND ARE SUPPORTED BY SUBSTANTIAL
EVIDENCE.  SEE, E.G., ILLINOIS C.R. CO. V. NORFOLK & W.R. CO., 385 U.S.
57, 69 (1966). 

TRANSPORTATION ACT OF 1940, 54 STAT. 905, 49 U.S.C. SEC 5, SETS FORTH
THE NATIONAL TRANSPORTATION POLICY THAT IS TO GUIDE THE COMMISSION IN
ITS SCRUTINY OF MERGERS PROPOSED BY RAILROADS.  THE COMMISSION IS TO
APPROVE SUCH PROPOSALS, PURSUANT TO THE TERMS OF SEC. 5(2)(B) OF THAT
ACT, WHEN THEY ARE MADE UPON JUST AND REASONABLE TERMS AND ARE
"CONSISTENT WITH THE PUBLIC INTEREST."  IN REACHING ITS DECISION, THE
COMMISSION IS TO GIVE WEIGHT TO A NUMBER OF FACTORS, SUCH AS:  "(1) THE
EFFECT OF THE PROPOSED TRANSACTION UPON ADEQUATE TRANSPORTATION SERVICE
TO THE PUBLIC; (2) THE EFFECT UPON THE PUBLIC INTEREST OF THE
INCLUSION, OR FAILURE TO INCLUDE, OTHER RAILROADS IN THE TERRITORY
INVOLVED IN THE PROPOSED TRANSACTION; (3) THE TOTAL FIXED CHARGES
RESULTING FROM THE PROPOSED TRANSACTION; AND (4)  THE INTEREST OF THE
CARRIER EMPLOYEES AFFECTED."  49 U.S.C. SEC. 5(2)(C)    WE FIND NO
BASIS FOR REVERSING THE DECISION OF THE DISTRICT COURT THAT THE
COMMISSION'S APPROVAL OF THE MERGER IS IN COMPLIANCE WITH LAW AND THE
STATUTORY STANDARDS, AND IS BASED ON ADEQUATE FINDINGS SUPPORTED BY
SUBSTANTIAL EVIDENCE.  WE SHALL FIRST DISCUSS CONSIDERATIONS WHICH ARE
BASIC TO THE STATUTORY STANDARDS, AND WE SHALL THEN TURN TO CERTAIN
PARTICULAR OBJECTIONS WHICH HAVE BEEN MADE. 

IT IS, OR COURSE, TRUE THAT THE POLICY OF CONGRESS, SET FORTH IN THE
TRANSPORTATION ACT, TO CONSOLIDATE THE RAILROADS OF THIS NATION INTO A
"LIMITED NUMBER OF SYSTEMS" IS A VARIATION FROM OUR TRADITIONAL
NATIONAL POLICY, REFLECTED IN THE ANTITRUST LAWS, OF INSISTING UPON THE
PRIMACY OF COMPETITION AS THE TOUCHSTONE OF ECONOMIC REGULATION. 
COMPETITION IS MERELY ONE CONSIDERATION HERE.   SEE SEABOARD AIR LINE
R. CO. V. UNITED STATES, 382 U.S. 154 (1965).  THIS DEPARTURE FROM THE
GENERAL AND FAMILIAR STANDARD OF INDUSTRIAL REGULATION EMPHASIZES THE
NEED FOR INSISTENCE THAT, BEFORE A RAIL MERGER IS APPROVED, THERE MUST
BE CONVINCING EVIDENCE THAT IT WILL SERVE THE NATIONAL INTEREST AND
THAT TERMS ARE PRESCRIBED SO THAT THE CONGRESSIONAL OBJECTIVE OF A RAIL
SYSTEM SERVING THE PUBLIC MORE EFFECTIVELY AND EFFICIENTLY WILL BE
CARRIED OUT.  OBVIOUSLY, NOT EVERY MERGER OR CONSOLIDATION THAT MAY BE
AGREED UPON BY PRIVATE INTERESTS CAN PASS THE STATUTORY TESTS. 

EXAMINATION OF THE RECORD AND OF THE FINDINGS IN THE PRESENT CASE,
HOWEVER, SATISFIES US THAT THE COMMISSION HAS PROPERLY AND LAWFULLY
DISCHARGED ITS DUTIES WITH RESPECT TO THE MERITS OF THE MERGER.   IN
THESE ELABORATE AND LENGTHY PROCEEDINGS THE COMMISSION HAS CONSIDERED
EVIDENCE TENDERED BY OTHERS AND COMPILED BY ITS OWN STAFF.  UPON THE
AGGRESSIVE SUIT OF PARTIES REPRESENTING CONFLICTING INTERESTS, IT HAS
ANALYZED EVERY PERTINENT ASPECT OF THE MERGER AND THE INCLUSION ORDER. 
IT HAS WEIGHED CONFLICTING VIEWPOINTS ON ALL OF THE FUNDAMENTAL ISSUES
AND MANY THAT ARE TANGENTIAL.  AS THE COMMISSION CONCLUDED, THE
EVIDENCE BEFORE IT, WITH NEGLIGIBLE EXCEPTIONS, ATTESTED TO THE
PROBABILITY OF SIGNIFICANT BENEFIT FROM THE MERGER, NOT ONLY TO THE
RAILROADS AND THEIR INVESTORS, BUT ALSO TO SHIPPERS AND THE GENERAL
PUBLIC. 

THE COMMISSION CAREFULLY CONSIDERED THE IMPLICATIONS OF THE FACT THAT
THE PENNSYLVANIA AND THE NEW YORK CENTRAL, AS INDIVIDUAL SYSTEMS, HAVE
OPERATED AT A PROFIT, AND THAT THERE ARE REASONABLY GOOD PROSPECTS FOR
A CONTINUATION OF SUCH OPERATION.  BUT IT WAS IMPRESSED BY THE FACT
THAT, AS INDIVIDUAL SYSTEMS, THESE PROFITS ARE NOT SUFFICIENT TO PUT
THE ROADS IN A POSITION TO MAKE IMPROVEMENTS IMPORTANT TO THE NATIONAL
INTEREST, INCLUDING THE MAINTENANCE OF SERVICES WHICH, ALTHOUGH
ESSENTIAL TO THE PUBLIC, ARE NOT SELF-SUPPORTING, AND FURNISHING
ASSISTANCE TO OTHER ROADS SERVING PUBLIC NEEDS IN THEIR GENERAL
TERRITORY.  THE COMMISSION EMPHASIZED THAT THE MERGER WOULD ENABLE THE
UNIFIED COMPANY TO "ACCELERATE INVESTMENTS IN TRANSPORTATION PROPERTY
AND CONTINUALLY MODERNIZE PLANT AND EQUIPMENT  ...  AND PROVIDE MORE
AND BETTER SERVICE."  327 I.C.C. 475, 501-502.  AND IT POINTED OUT THAT
ONLY BY PERMITTING THE MERGER WOULD IT BE POSSIBLE FOR THE COMMISSION
TO COMPEL PENN-CENTRAL TO COME TO THE RESCUE OF THE NEW HAVEN, AS WE
SHALL DESCRIBE. 

WITH RESPECT TO THE LESSENING OF COMPETITION WHERE IT NOW EXISTS
BETWEEN THE ROADS TO BE MERGED, THE COMMISSION POINTED OUT THAT IT WILL
RETAIN CONTINUING POWER OVER REDUCTIONS OF SERVICE AND FACILITIES WHICH
ARE NOT SPECIFICALLY APPROVED IN THE MERGER PLANS.  SUCH CONSOLIDATIONS
AND ABANDONMENTS WILL HAVE TO BE PRESENTED TO THE COMMISSION FOR ITS
APPROVAL AND MAY BE SUBJECTED TO PUBLIC CRITICISM AND HEARINGS AND TO
CONDITIONS OR DISAPPROVAL.  IT ALSO NOTED THAT THE RAIL SERVICE BY THE
MERGED COMPANY WILL REMAIN SUBJECT TO VIGOROUS COMPETITION FROM OTHER
ROADS, INCLUDING THE N&W AND THE C&O-B&O SYSTEMS, AND FROM MOTOR,
WATER, AND AIR CARRIERS.  THE COMMISSION SUMMARIZED SOME OF THE FACTORS
WHICH WOULD ACT AS A RESTRAINT UPON THE MERGED COMPANY AS FOLLOWS: 

"THE POWER OF SHIPPERS TO DIRECT THE ROUTING, THE AVAILABILITY OF
NUMEROUS ROUTES IN A DENSE NETWORK OF INTERLINE ROUTES, THE INFLUENCE
OF CONNECTING CARRIERS IN PREVENTING A DETERIORATION IN SERVICE ON THE
JOINT ROUTES IN WHICH THEY PARTICIPATE, THE GROWING STRENGTH OF THE N&W
AND C&O-B&O SYSTEMS, ALL STAND TO PROVIDE A CHECK AGAINST ANY ABUSE OF
ECONOMIC POWER BY THE MERGED APPLICANTS."   327 I.C.C., AT 514. 

CONSIDERING THE RECORD, AND THE FINDINGS AND ANALYSIS OF THE
COMMISSION, WE SEE NO BASIS FOR REVERSAL OF THE DISTRICT COURT'S
DECISION THAT THE COMMISSION'S "PUBLIC INTEREST" CONCLUSIONS ARE
ADEQUATELY SUPPORTED AND ARE IN ACCORDANCE WITH LAW.  WE FIND NO BASIS,
CONSONANT WITH THE PRINCIPLES GOVERNING JUDICIAL REVIEW, FOR SETTING
ASIDE THE COMMISSION'S DETERMINATION, APPROVED BY THE DISTRICT COURT,
THAT THE "PUBLIC INTEREST" DIRECTIVES OF THE GOVERNING STATUTE HAVE
BEEN REASONABLY SATISFIED:  THAT THE TRANSACTION IS LIKELY TO HAVE A
BENEFICIAL AND NOT AN ADVERSE EFFECT UPON TRANSPORTATION SERVICE TO THE
PUBLIC; AND THAT, AS WE SHALL DISCUSS, APPROPRIATE PROVISIONS HAVE BEEN
MADE WITH RESPECT TO OTHER RAILROADS THAT ARE DIRECTLY AFFECTED BY THE
MERGER. 

               B. OBJECTIONS OF CERTAIN PENNSYLVANIA INTERESTS. 

THE ONLY OBJECTORS IN THIS COURT TO THE PUBLIC INTEREST FINDINGS WITH
RESPECT TO THE MERGER ARE CERTAIN INTERESTS IN THE STATE OF
PENNSYLVANIA.  APPEAL NO. 835 WAS TAKEN BY THE CITY OF SCRANTON AND
MILTON J. SHAPP, A STOCKHOLDER IN THE PENNSYLVANIA RAILROAD COMPANY. 
THESE PARTIES FILED COMPLAINTS IN THE SOUTHERN DISTRICT OF NEW YORK
CHALLENGING THE COMMISSION'S ORIGINAL MERGER DECISION.  AFTER THIS
COURT'S REMAND LAST TERM, THEY WERE ORDERED BY THE DISTRICT COURT TO
FILE SUPPLEMENTAL COMPLAINTS.  THEY DECLINED TO COMPLY BECAUSE, HAVING
INTERVENED AS PLAINTIFFS IN A PROCEEDING CHALLENGING THE MERGER IN THE
MIDDLE DISTRICT OF PENNSYLVANIA, THEY CHOSE TO RELY UPON THEIR ASSERTED
RIGHT TO CHALLENGE THE COMMISSION'S MERGER AND INCLUSION DECISIONS IN
THE PENNSYLVANIA ACTION.  AFTER SEVERAL WARNINGS, THEIR COMPLAINTS IN
THE NEW YORK COURT WERE DISMISSED, WITH PREJUDICE. 

THE ACTION IN THE MIDDLE DISTRICT OF PENNSYLVANIA, IN WHICH SHAPP AND
SCRANTON INTERVENED, WAS FILED BY THE BOROUGH OF MOOSIC ON JUNE 26,
1967, TO SET ASIDE THE COMMISSION'S ORDERS, ENTERED AFTER OUR REMAND,
APPROVING THE PENN-CENTRAL MERGER AND THE INCLUSION OF THE THREE
PROTECTED ROADS IN THE N&W SYSTEM.  THE PENNSYLVANIA COURT STAYED THE
MOOSIC PROCEEDING BY ORDER OF JULY 11, 1967, ON THE REQUEST OF THE
UNITED STATES AND THE COMMISSION, FOR THE SOUND PURPOSE OF PREVENTING A
MULTIPLICITY OF LITIGATION REGARDING THE COMMISSION'S MERGER AND
INCLUSION DECISIONS.  CF. KANSAS CITY SOUTHERN R. CO. V. UNITED STATES,
282 U.S 760 (1931).  PETITIONS FOR MANDAMUS OR CERTIORARI, ON BEHALF OF
MOOSIC (NO. 663, MISC.) AND SCRANTON AND SHAPP (NO. 664, MISC.),
SEEKING TO CHALLENGE THE STAY OF PROCEEDINGS ENTERED BY THE
PENNSYLVANIA COURT, HAVE BEEN FILED IN THIS COURT.  SINCE IT NOW
APPEARS THAT THE MIDDLE DISTRICT OF PENNSYLVANIA HAS DISSOLVED ITS STAY
AND COMMENCED HEARINGS, IT WOULD BE POINTLESS FOR US TO REVIEW THE STAY
ORDER.  ACCORDINGLY, THE PETITIONS FOR MANDAMUS OR CERTIORARI ARE
DISMISSED AS MOOT. 

SCRANTON, SHAPP, AND MOOSIC ATTACK THE COMMISSION'S MERGER AND
INCLUSION DECISIONS ALONG A BROAD FRONT AND CLAIM ERROR IN THE
COMMISSION'S BASIC FINDINGS THAT THE PENN-CENTRAL MERGER AND INCLUSION
OF THE PROTECTED LINES IN N&W ARE IN THE PUBLIC INTEREST.  THE THRUST
OF THIS ARGUMENT IS THAT THE COMMISSION FAILED TO CONSIDER OR PROPERLY
TO EVALUATE THE ADVERSE EFFECT OF THE PENN-CENTRAL MERGER, CONSIDERED
IN LIGHT OF THE ORDER REQUIRING INCLUSION OF THE THREE PROTECTED ROADS
IN THE N&W SYSTEM, UPON CERTAIN AFFECTED COMMUNITIES IN THE STATE OF
PENNSYLVANIA.  WE DO NOT AGREE.  IN ITS APRIL 6, 1966, OPINION
APPROVING THE PENN-CENTRAL MERGER, THE COMMISSION EXAMINED THE
ARGUMENTS MADE BY PARTICIPATING COMMUNITIES IN GREAT DETAIL AND STATED
THAT THE "CONTENTIONS REGARDING THE ADVERSE EFFECT OF THE MERGER ON
PENNSYLVANIA'S ECONOMY ARE NOT SUBSTANTIATED BY THE EVIDENCE.  ON THIS
RECORD, THE PROSPECTS CLEARLY IMPORT THAT THE MERGER WILL BENEFIT
RATHER THAN HARM THE COMMONWEALTH."  327 I.C.C. 475, 492.  AT THE TIME
IT MADE THIS FINDING, THE COMMISSION WAS COMMITTED TO THE PROPOSITION
ENUNCIATED IN THE APRIL 6, 1966, OPINION, THAT THE THREE PROTECTED
ROADS WOULD BE INCLUDED IN ONE OF THE LARGER SYSTEMS BECAUSE OF THEIR
INABILITY TO SURVIVE AS INDEPENDENT LINES.  THIS COURT IN ITS DECISION
LAST TERM EMPHASIZED THE IMPORTANCE OF SUCH INCLUSION.  THE
COMMISSION'S CONCLUSION THAT THE NET RESULT OF THE MERGER WOULD BE
BENEFICIAL TO THE STATE OF PENNSYLVANIA IS BOLSTERED BY THE STRONG
POSITION TAKEN BY THE STATE IN THIS COURT THAT THE DECISION OF THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SHOULD BE
AFFIRMED. 

AS WE DISCUSS, INFRA, APART FROM THE GENERAL AND THEORETICAL ARGUMENT
THAT THE PENN-CENTRAL MERGER AND THE INCLUSION OF THE THREE ROADS IN
THE N&W SYSTEM MAY HARM SOME PENNSYLVANIA INTERESTS, COMPLAINANTS'
FEARS OF SPECIFIC INJURY RESULTING FROM REDUCTION OF COMPETITION BY
SPECIFIC CURTAILMENTS OF SERVICE NOW PROVIDED BY THE THREE PROTECTED
LINES MAY BE ASSERTED IN APPROPRIATE PROCEEDINGS WHEN SUCH CURTAILMENT
IS SPECIFICALLY PROPOSED. 

ALL OTHER COMPLAINTS OF THESE PARTIES RELATE BROADLY AND GENERALLY TO
THE FUNDAMENTAL AND UNDERLYING ECONOMIC PROBLEMS THAT ARE INVOLVED IN
THE MERGER AND INCLUSION DECISIONS:  FOR EXAMPLE, THE ANTICOMPETITIVE
CONSEQUENCES OF THESE DECISIONS AND THE FINANCIAL SITUATION AND
PROSPECTS OF THE PENNSYLVANIA AND NEW YORK CENTRAL AS INDEPENDENT
LINES.  THEY WERE ALL THE SUBJECT OF EXTENSIVE EVIDENCE AND WERE
ANALYZED AT LENGTH BY THE COMMISSION.  IN DISMISSING THE COMPLAINTS OF
SCRANTON AND SHAPP FOR FAILURE TO GO FORWARD, JUDGE FRIENDLY NOTED THAT
"WHILE WE ENTERTAIN NO DOUBT OF THE SUFFICIENCY OF THIS PROCEDURAL
GROUND, WE THINK IT WELL TO ADD THAT  ...  WE FIND NO MERIT IN THE
COMPLAINTS OF SHAPP AND THE CITY OF SCRANTON."  THE COURT REMARKED
THAT, FOR THE MOST PART, "THE ATTACKS OF SCRANTON AND SHAPP SIMPLY
REPRESENT DISAGREEMENT WITH PROCEDURAL AND POLICY DETERMINATIONS WHICH
CONGRESS HAS COMMITTED TO THE COMMISSION."  279 F. SUPP., AT 326, N.
6.  WE FIND NO REASON TO REVERSE THE JUDGMENT OF THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK FOR DISMISSING THE COMPLAINTS OF
SCRANTON AND SHAPP FOR FAILURE TO PROSECUTE, OR TO SET ASIDE ITS
CONCLUSIONS AS TO THE LACK OF MERIT OF THEIR CLAIMS, PARTICULARLY IN
LIGHT OF THE LIMITED FUNCTION OF JUDICIAL REVIEW OF DECISIONS SUCH AS
THOSE NOW BEFORE US AND THE OPPORTUNITY OPEN TO THEM TO CHALLENGE
PROPOSALS WHICH MAY BE MADE FOR SPECIFIC CURTAILMENT OF SERVICE. 

SCRANTON AND SHAPP, LIKE THE BOROUGH OF MOOSIC, WISH NOW TO GO
FORWARD WITH THEIR COMPLAINTS IN THE MIDDLE DISTRICT OF PENNSYLVANIA,
IN WHICH THEY SEEK AN INJUNCTION AGAINST CONSUMMATION OF THE PENN
CENTRAL MERGER AND THE EFFECTIVENESS OF THE INCLUSION ORDER.  BUT SHAPP
AND SCRANTON WERE PARTIES TO THE NEW YORK PROCEEDINGS AND THE BOROUGH
OF MOOSIC HAD AN ADEQUATE OPPORTUNITY TO JOIN IN THE LITIGATION IN THAT
COURT FOLLOWING THE STAY OF PROCEEDINGS IN THE MIDDLE DISTRICT OF
PENNSYLVANIA.  AS WE NOTED, SUPRA, N. 2, ALL DISTRICT COURTS IN WHICH
ACTIONS TO REVIEW THE COMMISSION'S FINDINGS OR FOR INJUNCTIVE RELIEF
WERE FILED CONTINUED THEIR PROCEEDINGS IN DEFERENCE TO THE NEW YORK
COURT.  ALL PARTIES WITH STANDING TO CHALLENGE THE COMMISSION'S ACTION
MIGHT HAVE JOINED IN THE NEW YORK PROCEEDINGS.  (FN4)  IN THESE
CIRCUMSTANCES, IT NECESSARILY FOLLOWS THAT THE DECISION OF THE NEW YORK
COURT WHICH, WITH CERTAIN EXCEPTIONS, WE HAVE AFFIRMED, PRECLUDES
FURTHER JUDICIAL REVIEW OR ADJUDICATION OF THE ISSUES UPON WHICH IT
PASSES.  WHILE IT IS THEREFORE NO LONGER OPEN TO THE PARTIES TO
CHALLENGE THE COMMISSION'S APPROVAL OF THE PENN-CENTRAL MERGER AND
INCLUSION OF THE THREE PROTECTED LINES IN N&W, OR ITS ORDER THAT
IMMEDIATE CONSUMMATION OF THE MERGER SHOULD BE PERMITTED, ANY CLAIMS
FOR SPECIFIC RELIEF, SUCH AS PARTICULARIZED OBJECTIONS WHICH MAY ARISE
FROM SPECIFIC PROPOSALS FOR CONSOLIDATION REDUCTION OF FACILITIES OR
SERVICES, ARE UNAFFECTED BY THE DECISION IN THE PRESENT CASES.  CLAIMS
NOT PRECLUDED BY THE PRESENT DECISION MAY BE PURSUED BEFORE THE
COMMISSION OR IN THE COURTS OR BOTH, AS MAY BE APPROPRIATE.  THIS
APPLIES TO SHAPP, TO THE CITY OF SCRANTON, AND TO THE BOROUGH OF MOOSIC
AS WELL AS TO ANY OTHER AFFECTED INTERESTS.  THE PROCEEDINGS IN THE
MIDDLE DISTRICT OF PENNSYLVANIA ARE NOT BEFORE US, EXCEPT AS WE HAVE
DISMISSED AS MOOT THE PETITIONS CHALLENGING THAT COURT'S STAY OF ITS
PROCEEDINGS, AND IT WILL BE THE TASK OF THAT COURT TO DETERMINE THE
EFFECT OF THE PRESENT DECISION UPON THE PROCEEDINGS BEFORE IT.
SCRANTON, SHAPP, AND MOOSIC MAY, OF COURSE, SEEK SUCH RELIEF, IF ANY,
IN THAT COURT AS MAY BE AVAILABLE AND APPROPRIATE IN LIGHT OF OUR
DECISION HEREIN. 

FINALLY, WE MUST MENTION THE CITY OF POTTSVILLE, WHICH HAS APPEALED
TO THIS COURT (NO. 433).  POTTSVILLE'S REQUEST TO INTERVENE IN THE
MOOSIC ACTION, UPON A COMPLAINT SIMILAR TO THAT OF MOOSIC, WAS DENIED
BY THE MIDDLE DISTRICT OF PENNSYLVANIA.  LIKE MOOSIC, POTTSVILLE HAD
THE OPPORTUNITY - WHICH IT FAILED TO SEIZE - TO LITIGATE IN THE
SOUTHERN DISTRICT OF NEW YORK.  IT APPEARS THAT A PRINCIPAL BASIS FOR
DENIAL OF POTTSVILLE'S REQUEST TO INTERVENE WAS THE OBJECTION
INTERPOSED BY THE UNITED STATES AND THAT THIS OBJECTION WILL, AFTER OUR
DECISION IN THE INSTANT CASES, BE WITHDRAWN.  UPON THIS REPRESENTATION
BY THE UNITED STATES, WITHOUT REFERENCE TO OR ANY ATTEMPT TO CONSIDER
THE SCOPE OR CONTENT OF THE ACTION IN WHICH INTERVENTION IS SOUGHT, OR
THE ISSUES, IF ANY, WHICH MAY REMAIN FOR ADJUDICATION IN THAT
PROCEEDING, WE VACATE THE DECISION OF THE DISTRICT COURT FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA DENYING INTERVENTION AND REMAND POTTSVILLE'S
CASE TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT OF OUR DECISION
TODAY.                       C. OBJECTIONS OF THE NEW HAVEN'S
BONDHOLDERS. 

TWO APPEALS, NOS. 830 AND 831, HAVE BEEN TAKEN ON BEHALF OF
BONDHOLDERS OF THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY
(NH).  SINCE 1961 THE NH HAS BEEN IN REORGANIZATION PROCEEDINGS UNDER
SEC 77 OF THE BANKRUPTCY ACT, 11 U.S.C. SEC 205.  DESPITE THE SHELTER
OF THE BANKRUPTCY COURT, IT HAS BEEN ON THE VERGE OF FINANCIAL COLLAPSE
WITH THE ATTENDANT RISK TO CONTINUANCE OF ITS RAIL SERVICE.  THE
COMMISSION HAS FOUND THAT PASSENGER AS WELL AS FREIGHT SERVICE BY THE
NH IS A NATIONAL NECESSITY AND THAT TERMINATION OF EITHER WOULD LEAD TO
DISTRESS IN CONNECTICUT, MASSACHUSETTS, AND RHODE ISLAND, AND WOULD
SEVERELY DAMAGE NEW YORK CITY AND THE NATION GENERALLY.  SEE NEW YORK,
NEW HAVEN & HARTFORD RAILROAD CO., TRUSTEES, DISCONTINUANCE OF ALL
INTERSTATE PASSENGER TRAINS, 327 I.C.C. 151 (1966). 

THE NH COMPETES IN A RELATIVELY SMALL PART OF ITS SERVICE AREA WITH
THE NEW YORK CENTRAL; BUT IN THE NH'S FINANCIAL CONDITION, DIVERSION OF
EVEN A SMALL AMOUNT OF THE PENNSYLVANIA'S CONNECTING TRAFFIC FROM THE
NH TO THE CENTRAL WOULD INFLICT CONSEQUENTIAL INJURY.  EVEN WITHOUT
REFERENCE TO THE HAZARD OF SUCH DIVERSION, INCLUSION OF THE NH IN THE
PENN-CENTRAL COMBINATION IS THE ONLY POSSIBILITY THAT HAS BEEN ADVANCED
BY ANY OF THE PARTIES - INCLUDING THE COMPLAINING BONDHOLDERS - FOR
CONTINUED OPERATION OF NH, SHORT OF THE SHEER SPECULATION THAT THE
STATES CONCERNED OR THE FEDERAL GOVERNMENT MIGHT TAKE OVER THE ROAD AND
ITS OPERATIONS. 

IN JUNE 1962, WITH PERMISSION OF THE BANKRUPTCY COURT, THE NEW
HAVEN'S TRUSTEES REQUESTED THE ICC TO MAKE PROVISION UNDER SEC. 5(2)(D)
OF THE ACT FOR ITS INCLUSION IN THE PROPOSED PENN-CENTRAL MERGER.  WHEN
THE COMMISSION FIRST CONSIDERED THE MERGER, IT STATED THAT "WE WILL
REQUIRE ALL THE NEW HAVEN RAILROAD (BOTH PASSENGER AND FREIGHT
OPERATIONS) TO BE INCLUDED IN THE APPLICANTS' TRANSACTION"; AND IN ITS
INITIAL REPORT IT PROVIDED THAT "OUR APPROVAL OF THE MERGER IS
CONDITIONED UPON SUCH INCLUSION."  327 I.C.C., AT 524, 527.  IT
REQUIRED THAT THE PARTIES TO THE MERGER IRREVOCABLY STIPULATE THAT THEY
WOULD CONSENT TO INCLUSION UPON SUCH TERMS AS MIGHT BE AGREED BETWEEN
THE NH AND THE MERGER PARTIES OR, FAILING THIS AGREEMENT, UPON SUCH
TERMS AS THE COMMISSION MIGHT PRESCRIBE WITH THE APPROVAL OF THE
BANKRUPTCY COURT.  327 I.C.C., AT 553. 

THE TRUSTEES OF THE NH AND THE TWO COMPANIES CONDUCTED LENGTHY
NEGOTIATIONS AND FINALLY ARRIVED AT AN AGREEMENT AS TO INCLUSION TERMS
DATED APRIL 21, 1966, AMENDED OCTOBER 4, 1966.  IN JULY 1967 THE NH
BANKRUPTCY COURT WARNED THAT NEW HAVEN'S CASH DEPLETION WAS "SO SERIOUS
THAT, IF THE PRESENT RATE OF LOSS CONTINUES, THERE WILL BE INSUFFICIENT
LEFT BY LATE SEPTEMBER TO MEET THE PAYROLL."  SUBSEQUENT IMPROVEMENT OF
CASH POSITION PERMITTED AMENDMENT OF THIS DIRE PREDICTION SO THAT IT
WAS EXPECTED THAT OPERATION COULD BE FINANCED TO JANUARY 1968. 

THE COMMISSION ON AUGUST 3, 1967, DIRECTED THE NEGOTIATION OF A LEASE
BETWEEN THE NEW HAVEN TRUSTEES AND PENN AND CENTRAL, TO BE "IMMEDIATELY
AVAILABLE UPON CONSUMMATION OF THE PENN-CENTRAL MERGER."  THE PARTIES,
HOWEVER, REPORTED THAT PREPARATION OF A LEASE IN TIME TO MEET THE NEW
HAVEN'S NEEDS WAS NOT POSSIBLE.  THEREUPON, THE COMMISSION ORDERED A
HEARING AS TO WHETHER A LEASE, LOAN, OR OTHER ARRANGEMENT SHOULD BE
MADE TO ASSURE THE NH'S CONTINUED OPERATION UNTIL ITS ACQUISITION BY
PENN-CENTRAL.  ON NOVEMBER 21, 1967, THE COMMISSION ISSUED AN ORDER,
SUBJECT TO THE APPROVAL OF THE BANKRUPTCY COURT, PROVIDING (A) TERMS
FOR THE INCLUSION OF THE NEW HAVEN IN THE PENN-CENTRAL SYSTEM UPON
EFFECTUATION OF THE PENN-CENTRAL MERGER; (B) FOR THE PENN-CENTRAL TO
LEND $25,000,000 TO THE NEW HAVEN OVER A THREE-YEAR PERIOD IN RETURN
FOR TRUSTEES' CERTIFICATES; AND (C) FOR THE PENN-CENTRAL TO BEAR 100%
OF THE OPERATING LOSSES OF THE NEW HAVEN DURING THE FIRST YEAR AFTER
THE MERGER, 50% IN THE SECOND, AND 25% IN THE THIRD, SUBJECT TO A
CEILING OF $5,500,000 IN EACH YEAR ON THE TOTAL AMOUNT THAT PENN
CENTRAL COULD BE REQUIRED TO ABSORB AND SUBJECT TO TERMINATION UPON
TRANSFER OF THE NEW HAVEN ASSETS.  ACCEPTANCE OF THESE TERMS BY PENN
AND CENTRAL IS A REQUIRED CONDITION OF APPROVAL OF THEIR MERGER.  THE
COMMISSION HAS RETAINED JURISDICTION "FOR THE PURPOSE OF MAKING SUCH
FURTHER ORDER OR ORDERS IN THESE PROCEEDINGS AS MAY BE NECESSARY OR
APPROPRIATE." 

THE MERITS OF THESE PROVISIONS ARE NOT BEFORE US.  THEY HAVE NOT BEEN
REVIEWED BY THE BANKRUPTCY COURT OR BY A STATUTORY DISTRICT COURT UNDER
THE APPLICABLE STATUTE.  THE NEW HAVEN TRUSTEES AND THE STATES OF
CONNECTICUT, MASSACHUSETTS, RHODE ISLAND, AND NEW YORK, AS WELL AS THE
UNITED STATES, HAVE FILED BRIEFS URGING THIS COURT TO AFFIRM APPROVAL
OF THE PENN-CENTRAL MERGER, CITING THE URGENT NEED FOR THIS IN ORDER TO
SALVAGE THE NEW HAVEN'S OPERATIONS.  THE ATTACK, SO FAR AS THE NEW
HAVEN IS INVOLVED, HAS BEEN LAUNCHED BY OSCAR GRUSS & SON, A HOLDER OF
APPROXIMATELY 14% OF THE NH'S FIRST AND REFUNDING MORTGAGE BONDS AND BY
THE PROTECTIVE COMMITTEE FOR THAT ISSUE, WHICH INTERVENED IN GRUSS'
ACTION BELOW.  (NOS. 830 AND 831.)  THE CLAIM IS THAT BECAUSE CONTINUED
OPERATION OF THE NEW HAVEN AT A LOSS INVOLVES PROGRESSIVE EROSION OF
THE BONDHOLDERS' SECURITY AND BECAUSE THE INTERIM ARRANGEMENT DOES NOT
ASSURE THAT PENN-CENTRAL WILL ABSORB ALL OF THE OPERATING LOSSES, WE
SHOULD NOT PERMIT THE PENN-CENTRAL MERGER TO BE CONSUMMATED WITHOUT
SIMULTANEOUS INCLUSION OF THE NH.  IN VIEW OF THE PROBABLE DIFFICULTIES
IN REACHING AGREEMENT FOR INCLUSION OF THE NH WHICH WILL SATISFY ITS
BONDHOLDERS, IT IS VIRTUALLY CERTAIN THAT THIS WOULD MEAN LENGTHY DELAY
DURING WHICH THE NH WOULD NOT HAVE ACCESS TO THE INTERIM PENN-CENTRAL
FINANCIAL AID, AND MIGHT BE FACED WITH COLLAPSE OF ITS OPERATIONS. 

THE COMMISSION, AFTER HEARING THE BONDHOLDERS' CONTENTION, POINTED
OUT THAT "IT IS A FUNDAMENTAL ASPECT OF OUR FREE ENTERPRISE ECONOMY
THAT PRIVATE PERSONS ASSUME THE RISKS ATTACHED TO THEIR INVESTMENTS,
AND THE NH CREDITORS CAN EXPECT NO LESS BECAUSE THE NH'S PROPERTIES ARE
DEVOTED TO A PUBLIC USE.  INDEED, THE ASSISTANCE THE CREDITORS ARE
RECEIVING FROM THE STATES AND WOULD RECEIVE FROM PENN-CENTRAL THROUGH
THE SHARING OF OPERATING LOSSES WOULD RAISE SOME OF THAT BURDEN FROM
THEIR SHOULDERS."  PENNSYLVANIA RAILROAD COMPANY - MERGER - NEW YORK
CENTRAL RAILROAD COMPANY, 331 I.C.C. 643, 704 (1967).  THE DISTRICT
COURT, PUTTING ASIDE QUESTIONS OF THE STANDING OF THE NH BONDHOLDERS TO
ATTACK THE PENN-CENTRAL MERGER, AFFIRMED THE COMMISSION'S REJECTION OF
THE ATTACK. 

CONTINUATION OF THE OPERATIONS OF THE NH, WHICH THE COMMISSION HAS
FOUND TO BE ESSENTIAL, CAN BE ASSURED ONLY UPON AND AFTER EFFECTUATION
OF THE MERGER OF THE PENN-CENTRAL.  THE BONDHOLDERS AGREE THAT TO DELAY
THE PENN-CENTRAL MERGER UNTIL ALL PROCEEDINGS NECESSARY TO INCLUDE THE
NH HAVE TAKEN PLACE MAY WELL MEAN THE END OF NH OPERATIONS.  THE ONLY
REALISTIC WAY TO AVOID THIS IS TO PERMIT PROMPT CONSUMMATION OF THE
PENN-CENTRAL MERGER SUBJECT TO APPROPRIATE CONDITIONS RESPECTING THE
NEW HAVEN WHICH PENN-CENTRAL WILL PERFORCE ACCEPT BY ITS ACT OF
MERGER.  WHILE THE RIGHTS OF THE BONDHOLDERS ARE ENTITLED TO RESPECT,
THEY DO NOT COMMAND PROCRUSTEAN MEASURES.  THEY CERTAINLY DO NOT
DICTATE THAT RAIL OPERATIONS VITAL TO THE NATION BE JETTISONED DESPITE
THE AVAILABILITY OF A FEASIBLE ALTERNATIVE.  THE PUBLIC INTEREST IS NOT
MERELY A PAWN TO BE SACRIFICED FOR THE STRATEGIC PURPOSES OR PROTECTION
OF A CLASS OF SECURITY HOLDERS WHOSE INTERESTS MAY OR MAY NOT BE SERVED
BY THE DESTRUCTIVE MOVE. 

WHILE WE REJECT THE APPEALS OF THE NH BONDHOLDERS, ACCEPTANCE OR
REJECTION OF THE TERMS AND CONDITIONS ON BEHALF OF THE NH REMAINS TO BE
DETERMINED.  THE BONDHOLDERS' OBJECTIONS MAY BE REGISTERED AND
ADJUDICATED IN THE BANKRUPTCY COURT OR UPON JUDICIAL REVIEW AS PROVIDED
BY LAW.  FURTHERMORE, AS NOTED ABOVE, THE COMMISSION HAS RETAINED
JURISDICTION TO MAKE FURTHER APPROPRIATE ORDERS, IF NECESSARY, AND HAS
PROVIDED BOTH THAT INCLUSION OF THE NH IN PENN-CENTRAL AND THE MAKING
OF THE LOAN ARRANGEMENT ON SUCH TERMS AS ARE PRESCRIBED BY THE
COMMISSION, ARE CONDITIONS OF APPROVAL OF THE MERGER. 

WE AFFIRM THE DISTRICT COURT'S DISMISSAL OF THE APPEALS IN NO. 830
AND NO. 831. 

       D. OBJECTIONS BASED ON THE PROVISIONS MADE FOR THE PROTECTED
ROADS. 

THE N&W AND ROADS ASSOCIATED WITH ITS POSITION (THE CHESAPEAKE & OHIO
(C&O), BALTIMORE & OHIO (B&O), AND WESTERN MARYLAND) HAVE FILED AN
APPEAL (NO. 778).  IN BRIEF AND UPON ARGUMENT THEY STATED THAT THEY DO
NOT OBJECT TO THE PENN-CENTRAL MERGER ITSELF.  THEIR STATED POSITION IS
THAT THEY OPPOSE "IMMEDIATE CONSUMMATION" - THAT IS PRIOR TO THE ACTUAL
INCLUSION OF E-L, D&H, AND B&M IN THE N&W.  THEY ALSO ASSAIL THE
SPECIFIC OPERATION AND EFFECT OF THE PROTECTIVE CONDITIONS AND URGE
MODIFICATIONS THEREOF, AND ATTACK THE BASIC LEGALITY OF THE CONDITIONS
AS A REVENUE POOL. 

THE ASSAILED PROTECTIVE PROVISIONS APPEAR AS APPENDIX G TO THE
COMMISSION'S ORDER IN THE MERGER CASE.  THEY ARE ESSENTIALLY OF TWO
TYPES:  TRAFFIC CONDITIONS THAT REQUIRE THE MERGED PENN-CENTRAL NOT TO
CHANGE ROUTES, RATES, OR SERVICE IN SUCH A WAY AS TO DIVERT TRAFFIC
FROM THE PROTECTED LINES; AND REVENUE INDEMNITY CONDITIONS ESTABLISHING
A FORMULA WHEREBY PENN-CENTRAL IS TO COMPENSATE THE PROTECTED LINES IN
THE EVENT OF ADVERSE REVENUE RESULTS FOLLOWING THE MERGER.  (FN5)  AT
THE TIME THE CASE WAS BEFORE US LAST TERM, THE COMMISSION HAD WITHDRAWN
THE REVENUE INDEMNITY CONDITIONS PENDING FURTHER CONSIDERATION.  AFTER
OUR REMAND, THE COMMISSION FURTHER CONSIDERED ALL THE CONDITIONS,
AMENDED THEM IN SOME RESPECTS NOT HERE MATERIAL, AND RESTORED THE
REVENUE INDEMNITY CONDITIONS.  NONE OF THE PROTECTED ROADS HAS LODGED
OBJECTIONS AGAINST THESE PROVISIONS, NOR HAS PENN-CENTRAL, AND WE
AFFIRM THE DISTRICT COURT'S CONCLUSION THAT THEY APPEAR TO PROVIDE
ADEQUATE INTERIM PROTECTION FOR THE THREE ROADS IN CONFORMITY WITH THE
PURPOSES INSISTED UPON BY THE COMMISSION AND WHICH THIS COURT SOUGHT TO
ENSURE BY ITS DECISION LAST TERM.  (FN6) 

THE OBJECTORS, HOWEVER, ATTACK THE PROTECTIVE PROVISIONS ON THREE
GROUNDS:  FIRST, THEY CLAIM THAT THE REVENUE INDEMNITY PROVISIONS
CREATE A POOLING AGREEMENT PROSCRIBED BY SEC. 5(1) OF THE INTERSTATE
COMMERCE ACT, 49 U.S.C. SEC. 5(1).  SECOND, THEY SAY THAT THE
CONDITIONS GIVE EACH OF THE PROTECTED LINES AN INCENTIVE TO DIVERT
TRAFFIC TO PENN-CENTRAL AND VICE VERSA.  SUCH TRAFFIC DIVERSION, THEY
ARGUE, WOULD BE AT THE EXPENSE OF THE OBJECTING, "UNPROTECTED," LINES. 
THIRD, THEY ALSO ASSERT THAT THE SHIELD WHICH THESE PROVISIONS GIVE THE
PROTECTED LINES DILUTES THEIR INCENTIVE TO JOIN THE N&W, PERMITS THEM
OR SOME OF THEM UNFAIRLY TO "SHOP AROUND" FOR BETTER TERMS OF
INCLUSION, AND MAY DELAY OR ABORT THEIR INCLUSION IN THE N&W. 

WE FIRST ADDRESS OURSELVES TO THE ARGUMENT ASSAILING THE INDEMNITY
PROVISIONS AS AN ILLEGAL POOL.  AS THE DISTRICT COURT POINTED OUT, THE
LEGISLATIVE HISTORY OF SEC. 5(1) LEADS TO THE CONCLUSION THAT THE
THE PUTATIVE REVENUE POOL IS NOT THE CREATION OF PRIVATE PARTIES BUT IS
IMPOSED BY THE COMMISSION ITSELF AS A CONDITION TO CONSUMMATION OF A
MERGER.  ADDITIONALLY, EVEN IF WE CONSIDER THE SECTION APPLICABLE IN
THESE CIRCUMSTANCES, THERE IS NO MERIT TO THE CONTENTION THAT THE
PROTECTIVE CONDITIONS MUST BE STRUCK DOWN.  SECTION 5(1) PROSCRIBES
"ANY CONTRACT, AGREEMENT, OR COMBINATION AMONG  ...  CARRIERS FOR THE
POOLING OR DIVISION OF TRAFFIC, OR OF SERVICE, OR OF GROSS OR NET
EARNINGS, OR OF ANY PORTION THEREOF," UNLESS THE COMMISSION FINDS THAT
SUCH POOLING OR DIVISION "WILL BE IN THE INTEREST OF BETTER SERVICE TO
THE PUBLIC OR OF ECONOMY IN OPERATION, AND WILL NOT UNDULY RESTRAIN
COMPETITION."  THE COMMISSION HAS HELD THAT, EVEN IF THE CONDITIONS IT
ESTABLISHED WERE A POOLING ARRANGEMENT, "THIS RECORD CLEARLY SUPPORTS
FINDINGS  ...  THAT TO PROTECT THESE CARRIERS CLEARLY IS 'IN THE
INTEREST OF BETTER SERVICE TO THE PUBLIC'" AND "'WILL NOT UNDULY
RESTRAIN COMPETITION.'"  330 I.C.C. 328, 345, N. 8.  WE AGREE WITH THE
DISTRICT COURT THAT THIS FINDING IS SUPPORTED BY SUBSTANTIAL EVIDENCE
IN THE RECORD.  THE INTERIM PROTECTION OF THE PROTECTED LINES IS, IN
THE COMMISSION'S VIEW AND UNDER THE DECISION OF THIS COURT LAST TERM,
ESSENTIAL.  THESE CONDITIONS HAVE BEEN ADOPTED FOR THAT PURPOSE AND WE
SEE NO REASON ON THE PRESENT RECORD TO CONCLUDE THAT THEY ARE
UNLAWFUL.  IN THE EVENT THAT ACTUAL EXPERIENCE REVEALS THAT THE
PROVISIONS OPERATE INEQUITABLY, RECOURSE MAY BE HAD TO THE COMMISSION
FOR RELIEF PURSUANT TO ITS RESERVED JURISDICTION, SUBJECT TO JUDICIAL
REVIEW. 

WITH RESPECT TO THE CONTENTION THAT, REGARDLESS OF WHETHER THE
INDEMNITY PROVISIONS CONSTITUTE A REVENUE POOL, THOSE PROVISIONS WILL
INDUCE THE PROTECTED CARRIERS AND PENN-CENTRAL IMPROPERLY TO DIVERT
TRAFFIC TO ONE ANOTHER AND THEREBY TO INJURE THE UNPROTECTED ROADS, THE
DISTRICT COURT CORRECTLY CONCLUDED THAT THERE IS NO BASIS FOR REJECTING
THE COMMISSION'S FINDINGS THAT NEITHER THE PROTECTED ROADS NOR PENN
CENTRAL "WOULD HAVE EITHER THE MOTIVE OR THE ABILITY TO ENGAGE IN SUCH
DIVERSION ON ANY SUBSTANTIAL SCALE."  279 F. SUPP., AT 328.  THIS
CONCLUSION WAS REACHED LARGELY BECAUSE OF THE ABILITY OF THE N&W TO
RETALIATE AND THE LIMITATIONS IMPOSED BY ECONOMIC CONDITIONS AND
GEOGRAPHIC FACTS.  THE COMMISSION INCLUDED IN ITS FINDINGS "A PROVISION
THAT WOULD PROHIBIT THE PROTECTED CARRIERS FROM ENGAGING IN
MANIPULATION, WITH SANCTIONS IF THEY DO," 330 I.C.C., AT 355, AND IT
SPECIFICALLY RESERVED JURISDICTION TO REOPEN PROCEEDINGS AND MODIFY THE
PROTECTIVE CONDITIONS "IN THE LIGHT OF EXPERIENCE."  THE COMMISSION HAS
ALSO INCLUDED A GENERAL RESERVATION OF JURISDICTION, UNDER WHICH IT
COULD REVISE THE PROTECTIVE CONDITIONS.  (FN7)  IF, IN LIGHT OF
EXPERIENCE, IMPROPER TRAFFIC DIVERSIONS SHOULD DEVELOP OR, AS NOTED
ABOVE, IF THESE CONDITIONS SHOULD OTHERWISE PROVE TO BE INEQUITABLE,
RECOURSE MAY BE HAD TO THE COMMISSION UNDER THESE RESERVATIONS, SUBJECT
TO JUDICIAL REVIEW AS APPROPRIATE.  (FN8)    N&W EXPRESSES THE FEAR
THAT THE TRAFFIC AND REVENUE INDEMNITY PROVISIONS WILL BE SO ATTRACTIVE
THAT THE THREE LINES OR SOME OF THEM WILL PREFER TO CONTINUE UNDER
THEIR UMBRELLA, AND WILL NOT PROMPTLY ACCEPT THE COMMISSION'S TICKET OF
ADMISSION TO THE N&W SYSTEM.  THE COMMISSION'S RESERVED POWER APPEARS
TO BE ADEQUATE TO DETER SUCH CONDUCT IF AND WHEN IT BECOMES ABUSIVE. 
FURTHER, ONE OF THE PROTECTED LINES, THE LARGEST OF THE THREE (E-L),
ALREADY HAS ACCEPTED, BY STOCKHOLDER VOTE, ITS INCLUSION IN N&W.  THE
BOARD OF DIRECTORS OF ANOTHER (D&H) HAS RECOMMENDED TO STOCKHOLDERS
THAT INCLUSION BE ACCEPTED.  (FN9)  IN VIEW OF THESE CIRCUMSTANCES, THE
FEARS EXPRESSED BY N&W AND THE OTHER PROTESTANTS AS TO THE DANGERS
WHICH PERPETUATION OF THESE PROVISIONS WILL POSE MUST BE REGARDED AS
SPECULATIVE.  CLEARLY, IF ONE OR MORE OF THE PROTECTED ROADS SHOULD
DECLINE TO ACCEPT THE TERMS FOR INCLUSION SPECIFIED BY THE COMMISSION'S
ORDER, THE COMMISSION COULD BE CALLED UPON TO EXAMINE, PURSUANT TO ITS
RESERVED POWER, THE APPROPRIATE ACTION TO BE TAKEN TO TERMINATE OR
MODIFY THE INTERIM PROTECTIVE PROVISIONS OR OTHERWISE TO ENSURE THAT
THE SHIELD SUPPLIED TO THE ROADS IS NOT CONVERTED INTO A SWORD.  THE
FEARS EXPRESSED BY THE PROTESTORS FALL FAR SHORT OF FURNISHING A REASON
FOR REJECTING THE DISTRICT COURT'S APPROVAL OF THE COMMISSION'S ORDER
THAT THE PENN-CENTRAL MERGER BE IMMEDIATELY CONSUMMATED.  NOR IS THERE
MERIT TO N&W'S CONTENTION THAT IT WAS ERROR FOR THE COMMISSION TO FAIL
TO RULE, NOW AND FOREVER, THAT THE PROTECTED ROADS MAY NOT BE INCLUDED
IN PENN-CENTRAL.  WHETHER OR NOT SUCH PERMISSION APPEARS LIKELY, THERE
IS NO OCCASION FOR SUCH CONTINGENT FORECLOSURE. 

FINALLY, WE REJECT THE CONTENTION THAT THIS COURT'S PRIOR OPINION IN
THIS MATTER NOW PRECLUDES US FROM PERMITTING CONSUMMATION OF THE MERGER
UNTIL ACTUAL INCLUSION OF THE THREE ROADS IN A LARGER SYSTEM.  WITH
RESPECT TO THE INCLUSION PROBLEM, OUR CRITICISM OF THE ORIGINAL
COMMISSION ORDER RAN TO THE ICC'S FAILURE TO DECIDE THE QUESTION OVER
WHICH IT HAD UNDOUBTED JURISDICTION AND WHICH THE COMMISSION ITSELF HAD
FOUND TO BE IMPORTANT TO THE PUBLIC INTEREST:  THE DETERMINATION, SO
FAR AS THE COMMISSION WAS EMPOWERED, OF THE ULTIMATE HOME OF THE THREE
ROADS.  AS THIS COURT SAID:  "WE CAN ONLY CONCLUDE THAT IT IS NECESSARY
THAT THE COMMISSION'S DECISION AS TO THE FUTURE OF THE PROTECTED
RAILROADS AND THEIR INCLUSION IN A MAJOR SYSTEM BE DECIDED PRIOR TO
CONSUMMATION OF THE PENN-CENTRAL MERGER."  386 U.S., AT 390.  OUR
DECISION WAS NOT INTENDED TO REQUIRE AN INDETERMINATE DELAY IN THE
CONSUMMATION OF THE MERGER, PENDING THE RESOLUTION OF THE JOCKEYING,
NEGOTIATING, AND FIGHTING AMONG ALL OF THE PARTIES CONCERNED AND
COMPLETION OF THE MULTITUDINOUS PROCEDURES NECESSARILY INVOLVED.  THIS
WOULD PLACE THE PUBLIC INTEREST AS WELL AS THE VAST MAJORITY OF THE
AFFECTED PRIVATE INTERESTS AT THE MERCY OF DECISIONS NOT MERELY OF
CERTAIN CORPORATIONS WHOSE INTERESTS ARE, IN FACT, SECONDARY OR
DERIVATIVE, BUT OF CLASSES OF SECURITY HOLDERS.  IT WAS OUR INTENTION
THAT THE PUBLIC INTEREST SHOULD BE SERVED WITH FAIRNESS TO ALL PRIVATE
PARTIES CONCERNED, NOT THAT IT SHOULD BE THE CAPTIVE OF PARTIES SOME OF
WHOM ARE UNDERSTANDABLY ENGAGED IN MANEUVERING SOLELY FOR THE PURPOSE
OF IMPROVING THEIR COMPETITIVE, STRATEGIC, OR NEGOTIATING POSITIONS. 

THERE IS NO PROVISION OF LAW BY WHICH THE COMMISSION OR THE COURTS
MAY COMPEL THE THREE PROTECTED ROADS TO ACCEPT INCLUSION IN THE N&W, AS
ORDERED BY THE COMMISSION, OR IN ANY OTHER SYSTEM:  SECTION 5(2)(D) OF
THE ACT PROVIDES: 

"THE COMMISSION SHALL HAVE AUTHORITY IN THE CASE OF A PROPOSED
TRANSACTION UNDER THIS PARAGRAPH INVOLVING A RAILROAD OR RAILROADS, AS
A PREREQUISITE TO ITS APPROVAL OF THE PROPOSED TRANSACTION, TO REQUIRE,
UPON EQUITABLE TERMS, THE INCLUSION OF ANOTHER RAILROAD OR OTHER
RAILROADS IN THE TERRITORY INVOLVED, UPON PETITION BY SUCH RAILROAD OR
RAILROADS REQUESTING SUCH INCLUSION, AND UPON A FINDING THAT SUCH
INCLUSION IS CONSISTENT WITH THE PUBLIC INTEREST." 

IT DOES NOT MAKE PROVISION FOR COMPELLING AN UNWILLING RAILROAD WHICH
IS NOT ITSELF A PARTY TO A MERGER AGREEMENT TO ACCEPT INCLUSION UNDER
THE TERMS THE COMMISSION PRESCRIBES.  OUR OPINION ON THE FIRST APPEALS
COMMANDED THE COMMISSION TO SPECIFY THE OPPORTUNITY PROVIDED FOR THE
SMALLER ROADS TO BE INCLUDED IN A MAJOR SYSTEM, BEFORE APPROVING
CONSUMMATION OF THE PENN-CENTRAL MERGER.  IT WAS NOT INTENDED TO GIVE
THE PROTECTED CORPORATIONS OR THE CREDITORS OR STOCKHOLDERS OF EACH OF
THEM, OR THE N&W RELYING ON THEIR POSITION, A VETO OVER THE PUBLIC
INTEREST WHICH THE COMMISSION HAS FOUND TO INHERE IN THIS MERGER. 

WE NEED NOT PAUSE TO DISCUSS IN DETAIL N&W'S CONTENTION THAT THE
COMMISSION'S FINDINGS DO NOT SUPPORT A CONCLUSION THAT N&W MUST PROCEED
WITH INCLUSION OF FEWER THAN ALL THREE OF THE PROTECTED ROADS, IF, FOR
EXAMPLE, B&M DOES NOT ACCEPT THE TERMS.  THE ORIGINAL DECISION IN THE
N&W-NICKEL PLATE MERGER PROCEEDINGS CLEARLY CONTEMPLATES ACTION BY THE
COMMISSION UPON A "PETITION OR PETITIONS" OF ONE OR MORE OF THE THREE
ROADS.  324 I.C.C. 1, 148.  SEPARATE PETITIONS WERE IN FACT FILED BY
EACH OF THESE ROADS.  AS THE DISTRICT COURT CONCLUDED, IN LIGHT OF THE
FAVORABLE ACTION ALREADY TAKEN BY E-L STOCKHOLDERS AND THE D&H BOARD OF
DIRECTORS, THE POSSIBILITY OF NONINCLUSION OF B&M WOULD NOT BE CAUSE
FOR SETTING ASIDE THE COMMISSION'S ORDER.  (FN10)

               E. THE POSITION OF READING CO. 

NO. 834 IS AN APPEAL ON BEHALF OF THE READING RAILROAD.  READING DOES
NOT ASK THAT THE CONSUMMATION OF THE MERGER BE STAYED.  ITS COMPLAINT
IS DIRECTED TO THE DISTRICT COURT'S AFFIRMANCE OF THE COMMISSION'S
REFUSAL TO PERMIT READING TO REOPEN THE RECORD AND SUBMIT EVIDENCE IN
SUPPORT OF ITS CLAIM THAT IT SHOULD RECEIVE PROTECTIVE CONDITIONS
SIMILAR TO THOSE THE THREE "PROTECTED ROADS" WERE GIVEN IN APPENDIX G
TO THE MERGER ORDER. 

READING IS CONTROLLED BY THE C&O-B&O SYSTEM THROUGH STOCK OWNERSHIP. 
IT HAS BEEN SUGGESTED UNDER THE SO-CALLED DERECO PLAN, THAT THE
PROPOSED N&W-C&O MERGER SHOULD INCLUDE THE READING, AS WELL AS CERTAIN
OTHER SMALL ROADS.  READING DID NOT AND DOES NOT ASK FOR INCLUSION IN
PENN-CENTRAL, OR FOR INCLUSION AT THIS TIME IN N&W ALONG WITH E-L, D&H,
AND B&M.  IT DID NOT OFFER EVIDENCE IN THE PENN-CENTRAL PROCEEDINGS AS
TO POSSIBLE TRAFFIC DIVERSION, UNTIL ITS TENDER MADE AFTER THE RECORD
HAD BEEN CLOSED.  IT NOW CLAIMS, HOWEVER, THAT SINCE MUCH OF ITS
TRACKAGE IS PARALLELED BY LINES OF THE PENNSYLVANIA, IT WILL BE INJURED
BY THE MERGER AND SHOULD HAVE THE BENEFIT OF THE APPENDIX G
PROVISIONS. 

READING REQUESTS THAT WE REMAND ITS CASE TO THE COMMISSION FOR A
DECISION AS TO WHETHER PROTECTIVE CONDITIONS SHOULD BE ESTABLISHED FOR
IT.  THE COMMISSION FOUND, IN ITS ORIGINAL REPORT, THAT READING WOULD
NOT BE HARMED BY THE MERGER AND THAT PROTECTIVE CONDITIONS WERE
THEREFORE UNNECESSARY.  THIS FINDING WAS BASED IN PART ON A LETTER
SUBMITTED BY READING ITSELF TO THE COMMONWEALTH OF PENNSYLVANIA AND
INTRODUCED, WITHOUT OBJECTION FROM READING, IN EVIDENCE BEFORE THE
COMMISSION.  ONLY AFTER THE COMMISSION ISSUED ITS REPORT DID READING
OBJECT TO THE FINDING OF NO ADVERSE IMPACT UPON IT AS A RESULT OF THE
MERGER, AND THEN READING'S FEAR APPEARS TO HAVE BEEN CHIEFLY THAT A
FINDING OF NO ADVERSE IMPACT MIGHT PREJUDICE ITS EVENTUAL ATTEMPT TO
JOIN IN THE N&W-C&O MERGER.  THE COMMISSION HELD READING TO ITS
"ORIGINAL CONCESSION THAT THE EFFECT OF THE MERGER TRANSACTION (WITHOUT
THE INDEMNITY CONDITIONS) UPON THEM WOULD BE INCONSEQUENTIAL."  330
I.C.C. 328, 357.  IN RESPONSE TO READING'S SPECIFIC CONCERN, THE
COMMISSION MODIFIED ITS FINDING OF NO ADVERSE IMPACT TO A FINDING THAT
NO ADVERSE IMPACT HAD BEEN SHOWN.  THE DISTRICT COURT UPHELD THIS
DECISION AND, IN ADDITION, CONCLUDED THAT READING'S CLAIM OF
SUBSTANTIAL ADVERSE IMPACT AS A RESULT OF THE PENN-CENTRAL MERGER WAS
UNPERSUASIVE ON THE MERITS. 

ORDINARILY, WE WOULD, WITHOUT MORE, CONCUR WITH THE DISTRICT COURT'S
VIEW.  BECAUSE OF THE VASTNESS AND COMPLEXITY OF THIS MATTER, HOWEVER,
AND IN ORDER TO ENSURE THAT WHATEVER SUBSTANCE THERE MAY BE TO
READING'S CLAIM IS NOT SACRIFICED, WE SUSTAIN THE COMMISSION'S DENIAL
OF READING'S SUBMISSION ON CONDITION THAT IT IS WITHOUT PREJUDICE TO
ANY PROCEEDING WHICH READING MAY HEREAFTER INSTITUTE, BASED ON ACTUAL
EXPERIENCE, FOR RELIEF FROM UNDUE PREJUDICE CAUSED BY THE MERGER. 

                            II.  INCLUSION DECISION. 

THREE APPEALS, NO. 779, NO. 833, AND NO. 836, RELATE TO THE
COMMISSION'S ORDER, ENTERED IN THE N&W-NICKEL PLATE MERGER PROCEEDINGS,
PRESCRIBING THAT N&W ACCEPT INCLUSION OF THE E-L, D&H, AND B&M IN THE
N&W SYSTEM AND SPECIFYING THE TERMS THEREOF.  NORFOLK & WESTERN RAILWAY
CO. AND NEW YORK, CHICAGO & ST. LOUIS RAILROAD CO. - MERGER, ETC., 324
I.C.C. 1 (1964), SUPPLEMENTED, 330 I.C.C. 780, RECONSIDERED, 331 I.C.C.
22 (1967).  IN 1964 THE COMMISSION APPROVED THE N&W-NICKEL PLATE MERGER
SUBJECT, AMONG OTHER CONDITIONS, TO THE COMMISSION'S RETENTION OF
JURISDICTION FOR FIVE YEARS TO PERMIT THE FILING OF PETITIONS BY E-L,
D&H, AND B&M FOR INCLUSION IN THE N&W SYSTEM.  THE COMMISSION'S
APPROVAL WAS ALSO SUBJECT TO THE CONDITION THAT N&W GIVE ITS
IRREVOCABLE CONSENT TO INCLUSION OF THE THREE ROADS ON TERMS THAT THE
ICC WOULD ITSELF PRESCRIBE IN THE ABSENCE OF AGREEMENT AMONG THE
AFFECTED PARTIES.  324 I.C.C. 1, 148.  THE THREE LINES IN DUE COURSE
FILED PETITIONS FOR INCLUSION.  HEARINGS WERE HELD, AND, ON JUNE 9,
1967, FOLLOWING OUR REMAND IN THE PENN-CENTRAL MERGER CASE, THE
COMMISSION MADE FINDINGS AND ENTERED ITS ORDER REQUIRING N&W TO INCLUDE
THE THREE ROADS IN ITS SYSTEM UNDER TERMS IT PRESCRIBED. 

APPELLANTS ARE THE N&W, THE B&M, AND A NUMBER OF E-L BONDHOLDERS.  AS
WE SHALL DISCUSS, ONLY THE N&W APPEAL RAISES ISSUES WHICH GO BROADLY TO
THE MERITS OF THE COMMISSION'S ORDER IMPLEMENTING N&W'S DUTY TO ACCEPT
INCLUSION OF THE THREE ROADS.  B&M SEEKS REMAND ON THE GROUNDS THAT THE
TERMS FIXED BY THE COMMISSION FOR N&W'S OFFER TO ACQUIRE THE STOCK OF
THE B&M ARE INADEQUATE TO REFLECT B&M'S VALUE AS PART OF THE N&W
SYSTEM.  THE THIRD APPEAL, BROUGHT BY E-L BONDHOLDERS, TURNS ON THE
QUESTION WHETHER THE COMMISSION SHOULD HAVE SPECIFICALLY RETAINED
JURISDICTION TO PROTECT THE E-L BONDHOLDERS IN THE EVENT THAT N&W
ATTEMPTS AFTER INCLUSION IMPROPERLY TO DIVERT E-L TRAFFIC TO ITSELF. 
WE AFFIRM THE DISTRICT COURT'S ACTION IN DISALLOWING THE CLAIMS OF ALL
OF THESE APPELLANTS.   REFERENCE IS MADE TO PRECEDING SECTIONS OF THIS
OPINION FOR DISCUSSION OF THE BEARING OF CLAIMS RESPECTING THE
INCLUSION ORDER UPON THE PENN-CENTRAL PROCEEDING. 

WE FIRST ADDRESS OURSELVES TO THE DEMANDS OF E-L BONDHOLDERS FOR
ASSURANCE THAT THE RESERVATION OF JURISDICTION BY THE COMMISSION WOULD
ENABLE THEM TO OBTAIN CONSIDERATION OF UNWARRANTED TRAFFIC DIVERSION BY
N&W, IF THAT SHOULD DEVELOP.  SINCE N&W WILL BE ACQUIRING STOCK CONTROL
OF E-L AND E-L'S BONDHOLDERS WILL LOOK TO E-L'S FORTUNES FOR PAYMENT
AND SECURITY, THE BONDHOLDERS FEAR THAT N&W MAY NOT BE ENTIRELY
SOLICITOUS OF E-L'S WELFARE.  APPELLANTS THEMSELVES NOTE THAT THE
COMMISSION, IN ADOPTING THE REPORT AND ORDER OF THE OFFICER PRESIDING
OVER THE ORIGINAL HEARING, HAS RESERVED JURISDICTION "TO RECEIVE SUCH
PETITIONS, INSTITUTE SUCH INVESTIGATIONS, AND MAKE SUCH ORDERS TO
ACCOMPLISH THE OBJECTIVES AND PURPOSES OF THE PLAN FOR INCLUSION AND
OTHER TERMS AND CONDITIONS PRESCRIBED HEREIN  ...  ."  THE COMMISSION
HAS ALSO RETAINED JURISDICTION "FOR THE PURPOSE OF MAKING SUCH FURTHER
ORDER OR ORDERS IN THESE PROCEEDINGS AS MAY BE NECESSARY OR
APPROPRIATE, IN ADDITION TO THOSE ORDERS UNDER JURISDICTION EXPRESSLY
RETAINED IN THE PRIOR REPORTS AND ORDERS OF THE COMMISSION AND TO THOSE
ORDERS WHICH MAY BE ISSUED UNDER SECTION 5(9) OF THE INTERSTATE
COMMERCE ACT."  (FN11)  SUPPLEMENTAL ORDER ISSUED JUNE 9, 1967.  WE
HAVE NO DOUBT THAT IF, AFTER INCLUSION OF E-L, N&W SHOULD ENGAGE IN A
COURSE OF CONDUCT WHICH INVADES THE RIGHTS OF E-L BONDHOLDERS, THE
BONDHOLDERS MAY APPLY TO THE COMMISSION FOR RELIEF AND THE COMMISSION'S
RESERVATION OF JURISDICTION WILL ENABLE IT TO RULE UPON THIS COMPLAINT
AND TO GRANT RELIEF, IF WARRANTED, SUBJECT TO JUDICIAL REVIEW. 

THE OTHER TWO APPEALS REQUIRE SOMEWHAT MORE EXTENDED COMMENT.  WE
FIRST NOTE THAT OUR OPINION AT THE LAST TERM FOUND ADEQUATE SUPPORT FOR
THE COMMISSION'S CONCLUSION THAT THE PUBLIC INTEREST REQUIRES INCLUSION
OF THE THREE ROADS IN A LARGER SYSTEM.  AS WE HAVE PREVIOUSLY NOTED,
SEE SUPRA, AT 503-505, THE COMMISSION'S FINDINGS AND ORDER WITH RESPECT
TO THE "PUBLIC INTEREST CONSIDERATIONS" INVOLVED IN THE INCLUSION OF
THESE LINES IN THE N&W SYSTEM ARE IN CONFORMITY WITH THE STATUTE AND
ARE SUPPORTED BY SUBSTANTIAL EVIDENCE. 

THE ATTACK OF N&W AND B&M UPON THE COMMISSION'S ORDER CENTERS, NOT
UPON THE FUNDAMENTAL ISSUES, BUT UPON THE PARTICULAR TERMS OF THAT
ORDER.  IN BRIEF, THE COMMISSION HAS PROVIDED THAT N&W WILL PURCHASE
STOCK CONTROL OF E-L AND B&M THROUGH WHOLLY OWNED SUBSIDIARIES.  IT HAS
FIXED THE BASIS FOR SUCH PURCHASE IN RELATION TO THE EXPERIENCED INCOME
OF THE LINES, THEIR EARNINGS HAVING BEEN ADJUSTED FOR VARIOUS FACTORS
INCLUDING SAVINGS AND GAINS WHICH THE COMMISSION FOUND WOULD RESULT
FROM INCLUSION IN THE N&W SYSTEM.  THE COMMISSION HAS SATISFIED ITSELF
THAT TRAFFIC LOSSES TO THE MERGED PENN-CENTRAL WOULD BE OFFSET BY
BENEFITS TO N&W NOT OTHERWISE TAKEN INTO ACCOUNT.  THE SHAREHOLDERS OF
THESE ROADS ARE TO RECEIVE STOCK OF A NEWLY CREATED SUBSIDIARY OF N&W,
WHICH WILL EVENTUALLY BE CONVERTIBLE INTO N&W COMMON STOCK.  IN THE
CASE OF D&H, THE MEANS OF VALUATION WAS THE SAME AS FOR THE OTHER
PROTECTED LINES, BUT N&W IS TO PAY FOR D&H ASSETS EITHER IN CASH OR
WITH A NOTE AND N&W STOCK.    THIS IS THE FIRST TIME IN THE
COMMISSION'S HISTORY THAT IT HAS UNDERTAKEN TO "REPLACE THE BARGAINING
SESSION."  IT DID SO HERE PURSUANT TO THE N&W STIPULATION, WHICH WAS
ACCEPTED BY N&W AS A CONDITION TO THE N&W-NICKEL PLATE MERGER, AND IN
RESPONSE TO THE EXIGENCIES OF THE SITUATION EMPHASIZED BY THIS COURT'S
DECISION AT OUR LAST TERM. 

AS WE HAVE NOTED ABOVE, THE E-L STOCKHOLDERS HAVE VOTED APPROVAL OF
THE INCLUSION TERMS.  THE D&H BOARD OF DIRECTORS HAS RECOMMENDED
APPROVAL TO ITS STOCKHOLDERS.  N&W COMPLAINS THAT THE PRICE SET FOR
INCLUSION OF THE THREE LINES IS TOO HIGH AND THAT SOME OTHER ASPECTS OF
INCLUSION ARE ARBITRARY.   B&M, ON THE OTHER HAND, COMPLAINS THAT THE
PRICE SET FOR ITS INCLUSION IS TOO LOW.  THE DISTRICT COURT AFFIRMED
THE COMMISSION'S FINDINGS AND CONCLUSIONS, AND IN THE EXERCISE OF OUR
REVIEWING FUNCTION WE FIND NO BASIS FOR REVERSING THAT COURT'S
DECISION. 

THE METHOD FOR DETERMINING THE VALUE AND EXCHANGE RATIO WHICH THE
COMMISSION ADOPTED, AND WHICH WE HAVE BRIEFLY DESCRIBED, IS NOT
ATTACKED.  IT IS A METHOD THAT IS REASONABLY CONVENTIONAL AND GENERALLY
ACCEPTED, ALWAYS SUBJECT TO THE MODIFICATIONS AND ADAPTATIONS REQUIRED
BY INDIVIDUAL CASES, AND WE SEE NO BASIS FOR HOLDING IT ERRONEOUS AS A
MATTER OF LAW.  THE ATTACK THAT IS LAUNCHED IS UPON FACTORS OR
PARTICULARIZED JUDGMENT AND THE WEIGHT TO BE ASCRIBED TO VARIOUS
VALUES.  THESE ARE MATTERS AS TO WHICH REASONABLE MEN MAY REASONABLY
DIFFER IN DETAIL, AND WE SEE NO BASIS FOR SETTING ASIDE THE
COMMISSION'S CONCLUSIONS AS SUSTAINED BY THE DISTRICT COURT.  IN
SETTING INCLUSION TERMS, THE COMMISSION WAS DEALING WITH COMPLICATED
AND ELUSIVE PREDICTIONS ABOUT PROBABLE TRAFFIC PATTERNS FOLLOWING THE
PENN-CENTRAL MERGER AND THE INCLUSION DECISION.  WE ARE NO MORE
COMPETENT THAN THE COMMISSION AND THE DISTRICT COURT TO ASCERTAIN THE
ACCURACY OF THOSE PREDICTIONS.  WE DEEM IT OUR FUNCTION, IN THE
COMPLEXITIES OF CASES SUCH AS THESE, TO REVIEW THE JUDGMENT OF THE
DISTRICT COURT WITH RESPECT TO AGENCY ACTIONS TO MAKE CERTAIN THAT
THOSE ACTIONS ARE BASED UPON SUBSTANTIAL EVIDENCE AND TO GUARD AGAINST
THE POSSIBILITY OF GROSS ERROR OR UNFAIRNESS.  IF WE FIND THOSE
CONCLUSIONS TO BE EQUITABLE AND RATIONAL, IT IS NOT FOR US TO SECOND
GUESS EACH STEP IN THE COMMISSION'S PROCESS OF DELIBERATION. 

N&W'S ATTACK UPON THE INCLUSION ORDER CENTERS UPON ITS DISAGREEMENT
WITH THE COMMISSION'S FINDINGS AS TO PROSPECTIVE EARNINGS OF THE THREE
ROADS AS PART OF THE N&W SYSTEM.  IT ARGUES THAT THE COMMISSION HAD NO
BASIS FOR CONCLUDING THAT THE EARNINGS OF E-L, D&H, AND B&M, AS
SUBSIDIARIES OF N&W, WOULD BE ADEQUATE TO ASSURE THEIR "VIABILITY." 
(FN12)  IT ASSERTS THAT THE COMMISSION HAS MADE VARIOUS INVALID
ADJUSTMENTS OF ACTUAL EARNINGS AND FAILED TO MAKE OTHERS.  THIS, N&W
SAYS, IS "THE PRINCIPAL AREA OF DISPUTE IN THESE PROCEEDINGS." 

ON THE OTHER HAND, THE B&M CONTENDS THAT THE COMMISSION'S FINDINGS
SUBSTANTIALLY UNDERESTIMATE THE SAVINGS WHICH SHOULD BE CREDITED TO IT
AS AN EARNINGS ADJUSTMENT, AND THAT, THEREFORE, THE TERMS FOR ITS
INCLUSION ARE UNJUST.  SPECIFICALLY, IT URGES THAT THE COMMISSION
UNDERESTIMATED THE PROBABLE AMOUNT OF SAVINGS RESULTING FROM N&W
CONTROL AND THE COORDINATION OF OPERATIONS AND EQUIPMENT REPAIR
FACILITIES AND REDUCTION OF ADMINISTRATIVE EXPENSES.  THE COMMISSION,
HOWEVER, ACCEPTED AND RELIED ON FIGURES SUBMITTED BY B&M'S OWN
WITNESS.  B&M NOW ASSAILS THESE FIGURES, BUT OBVIOUSLY THE COMMISSION
WAS ENTITLED TO RELY UPON THEM. 

THE DISTRICT COURT EXAMINED IN SOME DETAIL THE CONTENTIONS OF THE
PARTIES ATTACKING THE FINANCIAL TERMS OF THE INCLUSION ORDER.  WE HAVE
REVIEWED THE FINDINGS OF THE COMMISSION IN LIGHT OF THE EVIDENCE OF
RECORD AND THE DISTRICT COURT'S ANALYSIS, AND WE FIND NO BASIS FOR
REVERSING THE DISTRICT COURT'S JUDGMENT.  THE TERMS FIXED BY THE
COMMISSION ARE CLEARLY WITHIN THE AREA OF FAIRNESS AND EQUITY. 
ALTHOUGH B&M ARGUES FORCEFULLY THAT THE COMMISSION UNDERESTIMATED THE
SAVINGS THAT SHOULD REDOUND TO ITS CREDIT, WE CANNOT SAY IN THE
CIRCUMSTANCES THAT THE ORDER SHOULD BE REVERSED AND REMANDED IN THIS
RESPECT.  IT MUST BE NOTED, AS WE HAVE DISCUSSED IN CONNECTION WITH
APPEALS RELATING TO THE PENN-CENTRAL MERGER DECISION, THAT THE
INCLUSION ORDER HAS NO COMPULSIVE OR COERCIVE EFFECT UPON THE ROADS TO
BE INCLUDED.  UNLESS AND UNTIL MODIFIED BY THE COMMISSION, IT REMAINS
AVAILABLE TO THE PROTECTED LINES UPON THE TERMS WHICH IT SPECIFIES AND
WHICH THE DISTRICT COURT FOUND TO BE FAIR AND EQUITABLE.  (FN13) 

ONLY ONE OTHER POINT OF THE N&W ATTACK UPON THE INCLUSION ORDER
REQUIRES COMMENT.  N&W OBJECTS TO THE CONDITIONS PRESCRIBED BY THE
COMMISSION TO PROTECT THE INTERESTS OF THE EMPLOYEES AFFECTED BY THE
ORDER.  WE NOTE THAT THOSE CONDITIONS, PROTECTING EMPLOYEES OF THE
PROTECTED LINES, ARE THE SAME AS THE CONDITIONS SET BY THE COMMISSION
FOR N&W'S EMPLOYEES AT THE TIME OF THE N&W-NICKEL PLATE MERGER.  AS THE
DISTRICT COURT HELD, "THE COMMISSION ACTED WITHIN ITS POWERS IN
REQUIRING N&W TO PROTECT EMPLOYEES OF THE THREE ROADS AS THOROUGHLY AS
THOSE OF THE ROADS IT WAS PERMITTED TO ABSORB ONLY ON THE CONDITION
THAT IT WOULD ACCEPT THESE LINES IF THE COMMISSION SO DIRECTED."  279
F. SUPP., AT 337.  (FN14)

                  III.  CONCLUSION. 

THE JUDGMENT OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK IS AFFIRMED, SUBJECT TO THE MODIFICATIONS AND CONDITIONS STATED IN
THIS OPINION.  NOS. 778, 779, 830-836 ARE REMANDED TO THAT COURT FOR
THE ENTRY OF SUCH ORDERS AND FOR SUCH FURTHER ACTION AS MAY BE
CONSISTENT WITH OUR OPINION AND JUDGMENT HEREIN AND AS MAY BE
APPROPRIATE WITH RESPECT TO THE EXERCISE OF THAT COURT'S JURISDICTION
IN THE PREMISES. 

THE APPLICATIONS OF SCRANTON, SHAPP, AND MOOSIC FOR MANDAMUS OR
CERTIORARI (NOS. 663, MISC. AND 664, MISC.) ARE DENIED WITHOUT
PREJUDICE TO FURTHER PROCEEDINGS IN THE DISTRICT COURT FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA, CONSISTENT WITH THIS OPINION. 

IN NO. 433, JURISDICTION IS NOTED, THE JUDGMENT OF THE MIDDLE
DISTRICT OF PENNSYLVANIA WITH RESPECT TO POTTSVILLE IS VACATED, AND THE
CAUSE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN LIGHT OF OUR
DECISION TODAY. 

FN1  SEE INFRA, AT 511-512. 

FN2  SEE MEMORANDUM ORDER OF THE DISTRICT COURT, ISSUED JULY 3,
1967.  CIRCUIT JUDGE FRIENDLY, FOR THE DISTRICT COURT, NOTED THAT
"LITIGATION IN SIX OR MORE DIFFERENT DISTRICT COURTS HAS SEEMINGLY BEEN
AVERTED AND ALL ISSUES CONCENTRATED IN A SINGLE COURT OF FIRST
INSTANCE."  WE AGREE THAT THIS IS COMMENDABLE.  IF REVIEW OF THE
INCLUSION DECISION AND OF THE MERGER DECISION WERE IN DIFFERENT COURTS,
THE DIFFICULTIES PRESENTED BY THESE CASES WOULD BE MULTIPLIED. 

FN3  THE CENTRAL RAILROAD OF NEW JERSEY (CNJ) ASKED AND WAS GRANTED A
DISPENSATION FROM THE DISTRICT COURT'S SCHEDULE FOR BRIEFS AND
ARGUMENT.  THE CNJ HAS RESERVED THE RIGHT TO ASSERT THAT THE
COMMISSION'S ORDER SHOULD CONTAIN CERTAIN PROTECTIVE CONDITIONS FOR IT.
IT HAS WAIVED THE RIGHT TO ARGUE THAT THE PENN-CENTRAL MERGER SHOULD
BE DELAYED.  THE COMPLAINT OF THE CNJ WAS NOT DISMISSED WITH THE OTHERS
AND THE SOUTHERN DISTRICT OF NEW YORK HAS YET TO CONSIDER THE POSITION
OF THIS LINE. 

FN4  THE PROCESS OF THE NEW YORK COURT RAN THROUGHOUT THE NATION.  28
U.S.C. SEC 2321.  IN ADDITION, THE UNITED STATES WAIVED POSSIBLE
OBJECTIONS ON VENUE GROUNDS TO APPEARANCES BY ANY PARTY IN THE NEW YORK
LITIGATION.  IN THESE CIRCUMSTANCES, IT WOULD BE SENSELESS TO PERMIT
PARTIES SEEKING TO CHALLENGE THE MERGER AND THE INCLUSION ORDERS TO
BRING NUMEROUS SUITS IN MANY DIFFERENT DISTRICT COURTS.  SEE, FOR THE
PROVISION GOVERNING REVIEW OF ORDERS OF ADMINISTRATIVE AGENCIES IN THE
COURTS OF APPEALS, 28 U.S.C. SEC 2112. 

FN5  THE FORMULA IS DIRECTED TO COMPENSATION FOR AN APPROXIMATION OF
THE REVENUES WHICH MAY BE LOST BY THE PROTECTED LINES TO PENN-CENTRAL. 
REVENUE RATIOS ARE DETERMINED BY DIVIDING THE COMBINED 1965 FREIGHT
REVENUES OF PENN AND CENTRAL INTO THE 1965 FREIGHT REVENUES OF EACH OF
THE PROTECTED LINES.  FOR ANY GIVEN SUBSEQUENT YEAR, THE TOTAL FREIGHT
REVENUE OF THE MERGED PENN-CENTRAL AND OF THE PROTECTED LINE IN
QUESTION IS THEN MULTIPLIED BY THAT LINE'S REVENUE RATIO.  THE ACTUAL
EARNED FREIGHT REVENUE OF THE PROTECTED LINE FOR THE GIVEN YEAR IS THEN
SUBTRACTED FROM THE FIGURE OBTAINED BY THIS MULTIPLICATION.  IF THE
RESULT IS A POSITIVE FIGURE, IT IS MULTIPLIED BY AN INDEMNIFICATION
RATIO OF 50%, WHICH YIELDS THE TOTAL AMOUNT OF INDEMNITY OWED.  THE
COMMISSION HAS INDICATED THAT THE INDEMNITY CONDITIONS ARE TO
SUPPLEMENT THE TRAFFIC CONDITIONS, NOT TO REPLACE THEM; PENN-CENTRAL IS
NOT GIVEN A CHOICE OF OBEYING THE TRAFFIC CONDITIONS OR PAYING
LIQUIDATED DAMAGES, IN THE FORM OF INDEMNITY. 

FN6  E-L AND D&H UNSUCCESSFULLY SOUGHT FROM THE COMMISSION A
PROVISION FOR "CAPITAL LOSS INDEMNIFICATION" TO BE PAID THEM BY PENN
CENTRAL IN THE EVENT THAT THE PRICE FOR THEIR INCLUSION IN N&W WAS
REDUCED BECAUSE OF THE EFFECT OF THE PENN-CENTRAL MERGER ON THEIR
TRAFFIC.  ALTHOUGH E-L AND D&H HAVE PRESENTED AN APPEAL (NO. 832) ON
THIS ISSUE TO THIS COURT, THE APPEAL IS CONTINGENT ON OUR REVERSAL OF
THE COMMISSION'S INCLUSION TERMS OR OUR UPSETTING OF THE PROTECTIVE
CONDITIONS.  BECAUSE WE TODAY MAKE NEITHER OF THESE DECISIONS, THE
APPEAL OF E-L AND D&H IS DISMISSED. 

FN7  IN ESTABLISHING THE PROTECTIVE CONDITIONS, THE COMMISSION HAS
ORDERED "THAT THE JURISDICTION OF THIS COMMISSION BE, AND IT IS HEREBY,
RETAINED FOR THE PURPOSE OF MAKING SUCH FURTHER ORDER OR ORDERS IN
THESE PROCEEDINGS AS MAY BE NECESSARY OR APPROPRIATE, IN ADDITION TO
THOSE ORDERS UNDER JURISDICTION EXPRESSLY RETAINED IN THE PRIOR REPORTS
AND ORDERS OF THE COMMISSION AND TO THOSE ORDERS WHICH MAY BE ISSUED
UNDER SECTION 5(9) OF THE INTERSTATE COMMERCE ACT."  SEE N. 11, INFRA. 

FN8  THE "PROTECTED PERIOD" DURING WHICH THE CONDITIONS ARE TO BE IN
EFFECT WILL RUN FROM THE DATE OF CONSUMMATION OF THE MERGER UNTIL THE
DATE OF ACTUAL "INCLUSION OF THE PROTECTED CARRIER IN A RAILWAY SYSTEM
WHICH INCLUDES NORFOLK & WESTERN RAILWAY COMPANY OR ANY SUCCESSOR
THERETO, OR IN THE RAILWAY SYSTEM TO BE OPERATED BY THE MERGED COMPANY
...  ; PROVIDED, HOWEVER, THAT IF, AS TO ANY SUCH PROTECTED CARRIER, NO
SUCH INCLUSION SHALL HAVE BEEN EFFECTED WITHIN 1 YEAR OF THE FINAL
DETERMINATION OF (I) THE PETITIONS WHICH SUCH PROTECTED CARRIER NOW HAS
PENDING FOR INCLUSION IN SUCH RAILWAY SYSTEMS, AND (II) ANY NEW OR
SUPPLEMENTAL PETITION OR PETITIONS WHICH SUCH PROTECTED CARRIER MAY
SEASONABLY FILE FOR INCLUSION IN ANY SUCH RAILWAY SYSTEM THEN, AS TO
THAT PROTECTED CARRIER, THE PROTECTIVE PERIOD SHALL END WHEN THIS
COMMISSION SHALL SO ORDER."  330 I.C.C., AT 362. 

FN9  N&W PLACES EMPHASIS ON A LETTER WRITTEN TO STOCKHOLDERS BY THE
PRESIDENT OF D&H, WHO IS A DIRECTOR AND A LARGE STOCKHOLDER, TO THE
EFFECT THAT HE IS FORMULATING AN ALTERNATIVE PROPOSAL TO INCLUSION IN
THE N&W.  BUT AT ORAL ARGUMENT COUNSEL FOR D&H REITERATED THAT ROAD'S
DESIRE THAT THIS COURT AFFIRM THE INCLUSION ORDER AND THE MERGER
JUDGMENT, AND THERE IS NO BASIS IN THE RECORD BEFORE US FOR CONCLUDING
THAT THE D&H BOARD OF DIRECTORS HAS CHANGED ITS POSITION. 

FN10  THE REMAINING ARGUMENTS BY APPELLANTS IN NO. 778 MAY BE BRIEFLY
NOTED AND ANSWERED.  THERE IS NO SUBSTANCE TO APPELLANTS' CONTENTION
THAT THE COMMISSION FAILED TO FIND THAT THE CONSUMMATION OF THE MERGER
UNDER THE PROTECTIVE CONDITIONS WOULD BE IN THE PUBLIC INTEREST.  AS
THE DISTRICT COURT CONCLUDED, THIS FINDING IS "IMPLICIT IN THE VERY
CONCEPT OF DEVISING CONDITIONS PERMITTING CONSUMMATION PRIOR TO ACTUAL
INCLUSION OF THE PROTECTED ROADS IN A MAJOR SYSTEM AND WAS MADE
EXPLICIT WHEN THE COMMISSION SAID THAT ONLY 'SOME OF THE MERGER
BENEFITS' WOULD BE PREVENTED AND THAT THE CONDITIONS WOULD NOT WORK 'AN
UNDUE HARDSHIP UPON APPLICANTS EITHER IN THEIR OPERATIONS OR MERGER
IMPLEMENTATION.'  327 I.C.C., AT 532; SEE ALSO 330 I.C.C., AT 361.  TO
DENY EVIDENTIARY BASIS FOR THIS FINDING WOULD DEFY COMMON SENSE."  279
F. SUPP., AT 329.  AND APPELLANTS' ATTACK UPON THE DISTRICT COURT'S
OPINION ON THE BASIS OF SEC V. CHENERY CORP., 332 U.S. 194 (1947),
TOTALLY MISCONCEIVES THE LIMITED OFFICE OF THAT DECISION.  SEE N. 14,
INFRA. 

FN11  SECTION 5(9) PROVIDES THAT "THE COMMISSION MAY FROM TIME TO
TIME, FOR GOOD CAUSE SHOWN, MAKE SUCH ORDERS, SUPPLEMENTAL TO ANY ORDER
MADE (UNDER ITS POWER TO AUTHORIZE RAILROAD CONSOLIDATIONS) ...  AS IT
MAY DEEM NECESSARY OR APPROPRIATE." 

FN12  N&W CONTENDS THAT, FOR THIS REASON, THE COMMISSION SHOULD HAVE
CONSIDERED ALTERNATIVES TO INCLUSION AS POSSIBLE MEANS OF SAVING THE
SERVICE OF THE PROTECTED LINES.  WE BELIEVE N&W IS CONSIDERABLY
EMBARRASSED, IN MAKING THESE ARGUMENTS, BY THE FACT THAT THE COMMISSION
HAS CONTEMPLATED INCLUSION OF THE PROTECTED LINES IN N&W EVER SINCE
1964, WHEN N&W WAS PERMITTED TO CONSUMMATE ITS HIGHLY SUCCESSFUL MERGER
WITH THE NICKEL PLATE, AND WHEN N&W CONSENTED IN PRINCIPLE TO THE
INCLUSION OF THE THREE ROADS IN N&W.  THE PROTECTED LINES WERE SCARCELY
FARING BETTER IN 1964 THAN THEY ARE NOW.  DESPITE THE COMMISSION'S
RECOGNITION THAT THESE LINES ARE "WEAK," IT HAS FOUND THEIR INCLUSION
IN N&W TO BE IN THE PUBLIC INTEREST. 

FN13 THERE IS NO SUBSTANCE TO N&W'S ARGUMENT THAT THE COMMISSION
FAILED TO CONSIDER THE POSSIBILITY THAT ONE OR MORE OF THE PROTECTED
LINES WOULD NOT JOIN N&W.  THE COMMISSION PLAINLY DID CONSIDER THIS
POSSIBILITY.  IT WAS NOT REQUIRED TO SET A SCALE OF TERMS FOR INCLUSION
DEPENDING ON THE VARIOUS HYPOTHETICAL CONSEQUENCES OF ITS ORDER. 
FN14  WE REJECT N&W'S ARGUMENT THAT THE DISTRICT COURT WAS GUILTY OF A
VIOLATION OF THE RULE OF SEC V. CHENERY CORP., 332 U.S. 194 (1947). 
N&W ATTEMPTS TO EXTEND THE PRINCIPLE OF THAT CASE FAR BEYOND ITS
LIMITS.  BUT EVEN IF WE WERE TO ACCEPT N&W'S CONSTRUCTION OF THE CASE,
N&W'S CONCLUSION WOULD NOT FOLLOW.  N&W RELIES ON A STATEMENT BY THE
DISTRICT COURT TO THE EFFECT THAT "OUR DISCUSSION HAS REVEALED MANY
WAYS BY WHICH, IN OUR VIEW, THE COMMISSION COULD SUPPORT TERMS AS
FAVORABLE AS IT HAS ESTABLISHED EVEN IF THE COURT SHOULD HAVE HELD SOME
OF ITS SUBSIDIARY FINDINGS TO BE INSUFFICIENT."  279 F. SUPP., AT 355. 
BUT THAT STATEMENT DOES NOT INDICATE THAT THE COURT WAS BASING ITS
AFFIRMANCE OF THE COMMISSION ON GROUNDS OTHER THAN THOSE RELIED ON BY
THE COMMISSION ITSELF.  ON THE CONTRARY, THE DISTRICT COURT APPEARS TO
HAVE AGREED IN SUBSTANCE WITH ALL THE MAJOR FINDINGS OF THE
COMMISSION.  TO THE COMMISSION'S ANALYSIS IT ADDED SEVERAL POINTS THAT
IT BELIEVED WOULD ALSO SUPPORT THE COMMISSION'S CONCLUSIONS.  THE
ULTIMATE TERMS FOR INCLUSION WERE, OF NECESSITY, APPROXIMATIONS BASED
ON THE PROBABLE VALUE OF THE PROTECTED LINES TO N&W.  THE DISTRICT
COURT FOUND THAT THESE VALUES HAD BEEN PROPERLY COMPUTED BUT THAT, EVEN
IF THEY WERE NOT, N&W WAS PROTECTED BY SEVERAL ADJUSTMENTS THAT HAD
BEEN MADE BY THE COMMISSION IN ORDER TO ENSURE THAT INCLUSION WAS FAIR
TO N&W. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART IN NOS. 433, 663, MISC., AND
664, MISC. 

IN MY OPINION, THESE CASES PRESENT IMPORTANT QUESTIONS CONCERNING THE
"PUBLIC INTEREST" WHICH I FEEL THE COMMISSION SHOULD BE REQUIRED TO
ANSWER BEFORE JUDICIAL REVIEW CAN BE FEASIBLE. 

THE PENNSYLVANIA DISTRICT COURT PROCEEDINGS WERE INITIATED BY THE
BOROUGH OF MOOSIC (PETITIONER IN NO. 663, MISC.), LOCATED IN LACKAWANNA
COUNTY, PENNSYLVANIA.  THE BOROUGH BROUGHT ITS ACTION ON JUNE 26, 1967,
TO ANNUL AND SET ASIDE THE ORDERS OF THE COMMISSION AUTHORIZING OF THE
PENN-CENTRAL MERGER AND REQUIRING THE INCLUSION OF E-L, D&H, AND B&M IN
THE N&W SYSTEM.  (FN1)  THOSE ORDERS BY THE COMMISSION HAD BEEN ISSUED
ON JUNE 9, 1967, FOLLOWING OUR REMAND LAST TERM ON MARCH 27, 1967. 
BALTIMORE & OHIO R. CO. V. UNITED STATES, 386 U.S. 372.  MOOSIC, WHOSE
COMPLAINT IS DATED JUNE 26, 1967, WAS JOINED BY INTERVENORS CITY OF
SCRANTON AND MILTON J. SHAPP (PETITIONERS IN NO. 664, MISC.)  (FN2)
AND THE CITY OF POTTSVILLE (APPELLANT IN NO. 433).  (FN3)  ON JULY 11,
THE COURT GRANTED THE APPLICATIONS OF SHAPP AND THE CITY OF SCRANTON TO
INTERVENE, BUT DENIED THAT OF THE CITY OF POTTSVILLE. 

BEFORE THE PENNSYLVANIA ACTION WAS INITIATED, THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, IN WHICH THE ORIGINAL ACTION TO SET
ASIDE THE COMMISSION'S ORDER ALLOWING CONSUMMATION OF THE PENN-CENTRAL
MERGER HAD BEEN FILED (I.E., THE ACTION REVIEWED BY THIS COURT LAST
TERM), WAS ASKED TO ENJOIN CONSUMMATION OF THE MERGER AUTHORIZED BY THE
COMMISSION'S JUNE 9 ORDER UNTIL THE VALIDITY OF THE INCLUSION ORDER HAD
BEEN FINALLY DETERMINED.  ON JULY 3 THE NEW YORK COURT TEMPORARILY
ENJOINED THE MERGER, AND ORDERED ALL PLAINTIFFS AND INTERVENING
PLAINTIFFS IN THE ORIGINAL ACTION TO FILE SUPPLEMENTAL COMPLAINTS BY
JULY 17, ATTACKING THE JUNE 9, 1967, ORDER OF THE COMMISSION IN THE
PENN-CENTRAL MERGER CASE, OR THEIR COMPLAINTS WOULD BE DISMISSED WITH
PREJUDICE. 

ALSO BEFORE THE PENNSYLVANIA ACTION WAS FILED, N&W (ON JUNE 13) FILED
AN ACTION IN A FEDERAL DISTRICT COURT IN VIRGINIA TO SET ASIDE THE
INCLUSION ORDER; AND ON JUNE 23, D&H FILED A SIMILAR ACTION IN THE
SOUTHERN DISTRICT OF NEW YORK.  OTHER INTERESTED PARTIES HAD APPARENTLY
INDICATED THAT THEY WERE CONTEMPLATING FILING ADDITIONAL ACTIONS IN
STILL OTHER DISTRICT COURTS, AND THE GOVERNMENT AND THE COMMISSION
URGED ALL PARTIES TO PRESENT THEIR CHALLENGES TO THE ORIGINAL DISTRICT
COURT IN NEW YORK.  IN A HEARING BEFORE THAT COURT ON JUNE 28, TWO DAYS
AFTER THE FILING OF MOOSIC'S COMPLAINT IN PENNSYLVANIA, IT WAS STATED
THAT NO OBJECTIONS TO VENUE WOULD BE INTERPOSED BY THE GOVERNMENT
AGAINST ANY PARTY CHOOSING TO LITIGATE IN THE NEW YORK FORUM. 
THEREAFTER, THE UNITED STATES AND THE COMMISSION MOVED IN THE VIRGINIA
AND PENNSYLVANIA COURTS TO STAY PROCEEDINGS PENDING THE FINAL
DETERMINATION OF THE NEW YORK ACTIONS.  THE VIRGINIA COURT CONTINUED
ITS PROCEEDINGS UNTIL AFTER THE DECISION OF THE NEW YORK COURT SHOULD
BECOME AVAILABLE TO IT.  THE PENNSYLVANIA COURT ISSUED A STAY UNTIL
OCTOBER 1, 1967. 

UPON FAILING TWICE TO HAVE THE STAY ORDER DISSOLVED BY THE
PENNSYLVANIA COURT, THE BOROUGH OF MOOSIC AND SHAPP AND THE CITY OF
SCRANTON PETITIONED THIS COURT TO VACATE THE STAY ORDER AND COMMAND THE
DISTRICT COURT TO PROCEED WITH THEIR COMPLAINTS.  THE COURT TODAY
DISMISSES THOSE TWO PETITIONS.   (FN4) 

THE THREE COMMUNITIES INVOLVED - THE BOROUGH OF MOOSIC AND THE CITIES
OF SCRANTON AND POTTSVILLE, MAKE A BROADSIDE ATTACK ON MANY ASPECTS OF
THE MERGER IN THEIR ACTIONS IN THE PENNSYLVANIA COURT.  AMONG THOSE
MANY ISSUES TENDERED IS AT LEAST ONE THAT HAS NEVER BEEN CONSIDERED BY
ANY COURT, NAMELY, WHETHER THE INCLUSION OF E-L, D&H, AND B&M INTO N&W
WOULD HAVE SUCH A SERIOUS DETRIMENTAL IMPACT ON THEIR COMMUNITIES - IN
TERMS OF SERVICES, EMPLOYMENT, AND BUSINESS - AS TO MAKE THEIR
INCLUSION AGAINST THE "PUBLIC INTEREST" WITHIN THE MEANING OF THE
INTERSTATE COMMERCE ACT.  THE COMMUNITIES ALSO CONTEND THAT THEY HAVE
NOT BEEN AFFORDED AN ADEQUATE OPPORTUNITY TO PRESENT THEIR ARGUMENTS TO
THE COMMISSION. 

THIS COURT QUOTES THE CONCLUSION OF THE COMMISSION THAT THE
"CONTENTIONS REGARDING THE ADVERSE EFFECT OF THE MERGER ON
PENNSYLVANIA'S ECONOMY ARE NOT SUBSTANTIATED BY THE EVIDENCE.  ON THIS
RECORD, THE PROSPECTS CLEARLY IMPORT THAT THE MERGER WILL BENEFIT
RATHER THAN HARM THE COMMONWEALTH."  THIS STATEMENT, HOWEVER, IS TAKEN
FROM AN EARLIER (APRIL 6, 1966) OPINION BY THE COMMISSION IN THE MERGER
CASE.  PENNSYLVANIA RAILROAD CO. - MERGER - NEW YORK CENTRAL RAILROAD
CO., FINANCE DOCKET NO. 21989, 327 I.C.C. 475, 492.  IN OTHER WORDS,
THE COMMISSION WAS THERE DIRECTING ITS ATTENTION TO THE EFFECTS WHICH
THE MERGER OF THE PENN AND CENTRAL RAILROADS ITSELF WOULD HAVE ON
VARIOUS PENNSYLVANIA COMMUNITIES.  IT WAS NOT CONCERNED WITH THE
COMMUNITY IMPACT OF THE INCLUSION OF E-L, D&H, AND B&M INTO THE N&W
SYSTEM.  THAT ISSUE WAS NOT THEN EVEN BEFORE THE COMMISSION, BUT WAS
PRESENTED ONLY AT A LATER DATE IN THE SEPARATELY DOCKETED N&W INCLUSION
CASE, IN WHICH THE COMMISSION ISSUED ITS ORDER ON JUNE 9, 1967. 
NORFOLK & WESTERN RAILWAY CO. AND NEW YORK, CHICAGO & ST. LOUIS
RAILROAD CO. - MERGER, ETC., FINANCE DOCKET NO. 21510, 330 I.C.C. 780. 

THE COURT SEEMS TO SUGGEST THAT BECAUSE THE COMMISSION IN ITS APRIL
6, 1966, ORDER ALSO CONTEMPLATED THAT E-L, D&H, AND B&M WOULD
EVENTUALLY BE INCLUDED IN SOME MAJOR SYSTEM, IT MUST HAVE BEEN TAKING
INTO ACCOUNT THE IMPACT OF SUCH INCLUSION ON THE COMMUNITIES SERVED BY
THOSE ROADS WHEN IT MADE THE STATEMENT QUOTED ABOVE.  BUT THIS
ASSUMPTION FLIES IN THE FACE OF THE COMMISSION'S CASE-BY-CASE
APPROACH.  IT IGNORES THE FACT THAT THE EVIDENCE BEFORE THE COMMISSION
IN FINANCE DOCKET NO. 21989 (THE PENN-CENTRAL MERGER CASE) RELATING TO
THE COMMUNITY IMPACT OF THE PENN-CENTRAL MERGER WAS NOT ADDRESSED TO
THE IMPACT WHICH THE EVENTUAL INCLUSION OF E-L, D&H, AND B&M INTO N&W
WOULD HAVE ON COMMUNITIES SERVED BY THOSE ROADS.  SEE RECOMMENDED
REPORT, FINANCE DOCKET NO. 21989, AT 229-286; 327 I.C.C. 475, 489-493. 
AND IF THE COURT WERE CORRECT IN DIVINING THE COMMISSION'S HIDDEN
INTENT, I WOULD HAVE NO DOUBT THAT THE COMMISSION DID NOT PROVIDE
ADEQUATE OPPORTUNITY TO THE COMMUNITIES WHICH WOULD BE AFFECTED BY THE
INCLUSION OF THE THREE ROADS IN ANY MAJOR SYSTEM TO PARTICIPATE IN THE
PROCEEDINGS.  INFRA, AT 535-536. 

CONGRESS HAS, OF COURSE, COMMITTED ALL QUESTIONS OF POLICY UNDER SEC
5 TO THE COMMISSION; BUT ON JUDICIAL REVIEW, WE MUST BE ABLE TO SAY
THAT THE COMMISSION HAS MADE THE NECESSARY FINDINGS IN DETERMINING
POLICY - IN THIS INSTANCE, THAT THE INCLUSION WILL BE IN THE "PUBLIC
INTEREST."  I DO NOT FIND IN THE OPINION OF THE DISTRICT COURT, OR IN
THE COURT'S OPINION, A SEARCHING INQUIRY INTO THE COMMISSION'S
CONCLUSIONS REGARDING THE COMMUNITY IMPACT OF ITS ORDERS IN THE
INCLUSION CASE TO ASCERTAIN WHETHER THEY ARE ADEQUATELY SUPPORTED BY
"BASIC OR ESSENTIAL FINDINGS."  FLORIDA V. UNITED STATES, 282 U.S. 194,
215; UNITED STATES V. CAROLINA CARRIERS CORP., 315 U.S. 475, 489.  A
FEW WORDS ABOUT THE COMMUNITY IMPACT OF THIS CASE - THE INCLUSION CASE
WILL POINT UP WHAT I MEAN. 

IN THE RECOMMENDED REPORT OF COMMISSIONER WEBB, SERVED ON DECEMBER
22, 1966, IN THE INCLUSION CASE, SCANT ATTENTION WAS PAID TO THE ISSUES
TENDERED BY THE COMMUNITY INTERESTS.  COMMISSIONER WEBB NOTED THAT MANY
REPRESENTATIVES OF VARIOUS SHIPPER AND COMMUNITY INTERESTS TESTIFIED
CONCERNING THE VITAL NEED FOR THE SERVICES OF THE THREE ROADS.  HE THEN
DISPOSED OF THE ASSERTIONS OF MILTON J. SHAPP AND CERTAIN PENNSYLVANIA
INTERESTS IN ONE SENTENCE: 

"CONTRARY TO THE ASSERTIONS OF SHAPP AND OTHER PENNSYLVANIA
INTERESTS, INTRAMODAL COMPETITION WOULD NOT BE SIGNIFICANTLY
LESSENED." 

AN ACCOMPANYING FOOTNOTE READS: 

"SHAPP'S CONTENTIONS THAT COMPETITION WOULD BE SUBSTANTIALLY
CURTAILED AND THAT RAIL FACILITIES IN THE EASTERN AND WESTERN PORTIONS
OF PENNSYLVANIA WOULD BE CONTRACTED ARE PREDICATED ON THE MERGER OF
BOTH E-L AND D&H INTO N&W.  HOWEVER, THE MERGER OF E-L INTO N&W IS NOT
AUTHORIZED HEREIN (ONLY CONTROL WAS AUTHORIZED).  MOOSIC SUBMITTED
TESTIMONY THROUGH ITS MAYOR AND NORTHAMPTON THROUGH THE CHAIRMAN OF ITS
BOARD OF COMMISSIONERS, IN WHICH OPINIONS WERE EXPRESSED THAT INCLUSION
OF E-L AND D&H IN THE N&W SYSTEM WOULD BE INJURIOUS TO SHIPPERS AND
RECEIVERS AND THE ECONOMIES OF THEIR AREAS.   NO EVIDENCE WAS OFFERED
TO SUPPORT THESE OPINIONS AND THEY ARE NOT SUSTAINED BY ANY OTHER
EVIDENCE IN THE RECORD." 

THIS CURSORY TREATMENT OF THE ALLEGATIONS OF SHAPP AND OTHER
PENNSYLVANIA INTERESTS IS NOT AN ANALYSIS OF THE MERITS OF THEIR
ASSERTIONS SUFFICIENT FOR JUDICIAL REVIEW.  THIS IS HARDLY A CONSIDERED
TREATMENT OF THE EFFECTS WHICH INCLUSION WOULD HAVE ON COMMUNITIES
PRESENTLY SERVED BY MORE THAN ONE OF THE ROADS TO BE INCLUDED IN THE
N&W SYSTEM.  (FN5) 

THE PARTIES IN THE PENNSYLVANIA COURT ARGUE THAT THE HEARING EXAMINER
AND COMMISSION FAILED TO RELATE THE VARIOUS PIECES OF EVIDENCE WHICH
WERE AVAILABLE CONCERNING THE COMMUNITY IMPACT OF ANY REDUCTION IN
SERVICES OR FACILITIES LIKELY TO RESULT FROM THE INCLUSION ORDER IN THE
COMMUNITIES INVOLVED.  IN PARTICULAR, THE PARTIES NOTE THAT MOOSIC
WOULD BE A PRIME CANDIDATE FOR THE PRUNING OF FACILITIES SINCE IT HAS A
SUBSTANTIAL AMOUNT OF E-L AND D&H TRACK, AND THAT SCRANTON WOULD BE
REDUCED TO A TWO-RAILROAD TOWN WITH E-L AND D&H ALSO HAVING DUPLICATING
FACILITIES IN THE AREA.  IT WAS NOTED THAT EVEN THOUGH THE COMMISSION
STATED THAT ITS INCLUSION ORDER DID NOT AUTHORIZE THE ABANDONMENT OF
FACILITIES, THE EVIDENCE INTRODUCED BY E-L IN SUPPORT OF INCLUSION
DEMONSTRATED CLEARLY THAT THE AVOWED PURPOSE UNDERLYING THE ENTIRE
TRANSACTION WAS SUBSTANTIALLY TO REDUCE FACILITIES IN THE WILKES BARRE
SCRANTON-BINGHAMTON AREA, AND THEREBY EFFECT ECONOMIES.  IT WAS FURTHER
ALLEGED THAT ACCORDING TO E-L'S OWN PLAN PRESENTED TO THE COMMISSION,
INCLUSION OF E-L AND D&H INTO N&W WOULD LEAD TO THE TEARING UP OF THE
MAIN LINE DOUBLE TRACK BETWEEN BINGHAMTON AND SCRANTON, AND WOULD THUS
TAKE SCRANTON OFF THE MAIN LINE BETWEEN CHICAGO AND NEW YORK. 

THE COMMUNITIES ALSO CONTEND THAT THEIR OPPORTUNITY TO PARTICIPATE
MEANINGFULLY IN THE INCLUSION PROCEEDINGS WAS SERIOUSLY LIMITED:  THE
COMMISSION AND ITS HEARING EXAMINER DENIED ALL REQUESTS BY MOOSIC TO
HOLD HEARINGS IN THE SCRANTON AREA SO THAT ITS CITIZENS, BUSINESSMEN,
AND CIVIC LEADERS COULD BE HEARD CONCERNING THE RAILROAD PROPOSALS. 
AND THE CITY OF SCRANTON DESCRIBES THE DIFFICULTY OF MEANINGFUL
PARTICIPATION BY COMMUNITY INTERESTS IN THE FOLLOWING MANNER: 

"THE APRIL 6, 1966 REPORT OF THE COMMISSION IN THE PRR-NYC MERGER
CASE STATED THAT ITS DECISION IS RELATED TO THE 'INCLUSION' PROCEEDING,
F.D. 21510, WHEREBY E-L, D&H AND B&M SEEK TO BE ABSORBED BY N&W.  THE
COMMISSION STATED THAT IT TOOK OFFICIAL NOTICE OF F.D. 21510 AND THAT
IT HAD A BEARING ON ITS DECISION.  (327 I.C.C. 475, 487-489.)  YET THE
FACT WAS THAT THE COMMISSION, ON APRIL 6, 1966, DID NOT AND COULD NOT
HAVE CONSIDERED THE EVIDENCE OF THE NONRAILROAD PARTIES TO F.D. 21510,
BECAUSE SUCH EVIDENCE FROM THE NONRAILROAD PARTIES WAS NOT CIRCULATED
UNTIL APRIL 13, 1966, AND WAS NOT RECEIVED IN EVIDENCE PRIOR TO JUNE
16, 1966.  THE COMMISSION COULD NOT IN ITS APRIL 6, 1966 REPORT HAVE
CONSIDERED THE PUBLIC INTEREST ASPECTS OF THE INCLUSION CASE, BUT COULD
ONLY HAVE BASED ITS PRR-NYC DECISION IN THIS REGARD STRICTLY UPON
CONSIDERATION OF RAILROAD EVIDENCE, RAILROAD POSITIONS, AND RAILROAD
ARGUMENTS." 

IT IS NOT AT ALL CLEAR TO ME THAT THE COMMISSION OFFERED A MEANINGFUL
OPPORTUNITY IN THE INCLUSION CASE TO LOCAL AND REGIONAL INTERESTS TO
PRESENT THEIR ARGUMENTS.  THAT IS A MATTER FOR THE PENNSYLVANIA COURT
TO DETERMINE IN THIS INCLUSION CASE. 

AS RESPECTS THE QUESTION OF "PUBLIC INTEREST" IN THE N&W INCLUSION
CASE, THE COMMISSION CONCLUDED:

"ON THE POSITIVE SIDE, INCLUSION OF THE PETITIONERS IN N&W WILL
STRENGTHEN RAILROAD COMPETITION, ENHANCE THE ADEQUACY OF THE
TRANSPORTATION SERVICE PROVIDED BY N&W AS WELL AS THE THREE PETITIONERS
BY OPENING NEW ROUTES AND INSTITUTING NEW SERVICE, PRODUCE THE
ECONOMIES AND EFFICIENCIES INHERENT IN SINGLE-LINE OPERATION, AND
PERMIT THE JOINT USE WHERE POSSIBLE, OF FACILITIES, EQUIPMENT AND
ROUTES  ...  . 

"OUR ORDER HEREIN DOES NOT AUTHORIZE THE ABANDONMENT OF LINES,
OPERATIONS OR FACILITIES BY N&W OR THE PETITIONERS.  APPLICATIONS FOR
SUCH ABANDONMENTS ARE TO BE FILED IN APPROPRIATE PROCEEDINGS.  WE
EXPECT N&W TO MAINTAIN PROPER DIVISIONS WITH THE PETITIONERS."  330
I.C.C. 780, 827.    DESPITE THE COMMISSION'S DISCLAIMER THAT THE
INCLUSION ORDER "DOES NOT AUTHORIZE THE ABANDONMENT OF LINES,
OPERATIONS OR FACILITIES," IT APPEARS THAT SOME ABANDONMENT WILL ALMOST
CERTAINLY RESULT GIVEN THE GEOGRAPHICAL LOCATION OF THE LINES OF THE
FOUR ROADS INVOLVED AND THE COMPANIES' DESIRE FOR EFFICIENCY.  IN
ADDITION, THE COMMISSION ITSELF, IN THE FIRST PARAGRAPH QUOTED ABOVE,
INDICATES THAT IT CONTEMPLATES "ECONOMIES AND EFFICIENCIES INHERENT IN
SINGLE-LINE OPERATION," AND "THE JOINT USE WHERE POSSIBLE, OF
FACILITIES, EQUIPMENT AND ROUTES" - ALL OF WHICH PORTEND SIGNIFICANT
EFFECTS ON THE LOCAL COMMUNITIES STRETCHED ALONG THE ROUTES OF THE
ROADS.  DEFERRAL OF THE QUESTION OF COMMUNITY INTERESTS UNTIL A
SUBSEQUENT HEARING ON ABANDONMENTS WILL NOT ENSURE ADEQUATE PROTECTION
OF THOSE INTERESTS; FOR AT THE SUBSEQUENT HEARING THE PENN-CENTRAL
MERGER WOULD BE A FACT, AND THE PRESSURES WOULD BE GREAT FOR INCREASED
ECONOMIES ON THE PART OF THE N&W SYSTEM TO MAKE IT A MORE EFFICIENT
COMPETITOR OF PENN-CENTRAL. 

COMMUNITIES WHICH DEPEND HEAVILY ON THE RAILROAD INDUSTRY FOR
EMPLOYMENT, SUCH AS THE CITY OF SCRANTON, WOULD BE AFFECTED
SIGNIFICANTLY BY ANY LOSS OF JOBS.  IN ITS OPINION IN THE N&W INCLUSION
CASE, THE COMMISSION NOTED THAT IN THE EARLIER PHASE OF THIS
PROCEEDING, N&W HAD ENTERED INTO AGREEMENTS WITH CERTAIN LABOR UNIONS
WHICH PROVIDED THAT ELIMINATION OF JOBS RESULTING FROM THE N&W-NICKEL
PLATE UNIFICATION WOULD BE ACCOMPLISHED ONLY THROUGH NORMAL ATTRITION
(I.E., "PRINCIPALLY BY DEATH, RETIREMENT, DISCHARGE FOR CAUSE, OR
RESIGNATION."  330 I.C.C. 780, 822, N. 26); THE AGREEMENTS WERE
APPARENTLY MODIFIED AT A LATER DATE TO PROHIBIT TRANSFER OF EMPLOYEES
TO OTHER JOBS BEYOND THEIR GENERAL LOCALITY.  FOR THOSE EMPLOYEES NOT
COVERED BY THE AGREEMENTS, THE COMMISSION IMPOSED CERTAIN PROTECTIVE
CONDITIONS PRESCRIBED IN SOUTHERN RY. CO. - CONTROL - CENTRAL OF
GEORGIA RY. CO., 317 I.C.C. 557, AS SUPPLEMENTED AND CLARIFIED IN 317
I.C.C. 729 AND 320 I.C.C. 377.  THE COMMISSION CONCLUDED THAT THE
EMPLOYEES OF E-L, D&H, AND B&M SHOULD BE PROTECTED IN THE SAME MANNER
AS THEIR COUNTERPARTS INVOLVED IN THE N&W-NICKEL PLATE PROCEEDINGS. 
FOR ALL EMPLOYEES NOT COVERED BY ATTRITION AGREEMENTS, THE PROTECTION
WOULD CONSIST OF THE FOLLOWING:  EITHER N&W'S EXISTING AGREEMENTS HAD
TO BE MODIFIED TO COVER EMPLOYEES OF THE INCLUDED ROADS OR SIMILAR NEW
AGREEMENTS WERE TO BE DRAFTED; AND, IF NO AGREEMENT WAS CONCLUDED
WITHIN 60 DAYS, THE COMMISSION WOULD IMPOSE APPROPRIATE CONDITIONS. 
THE COMMISSION DENIED THE REQUESTS OF D&H AND B&M TO EXTEND THIS
EMPLOYEE PROTECTION TO THEIR SUPERVISORY, PROFESSIONAL, AND EXECUTIVE
PERSONNEL. 

WHETHER THE USE OF ATTRITION AGREEMENTS TO ELIMINATE JOBS HAS A
SUBSTANTIAL ADVERSE IMPACT SIMPLY BECAUSE JOBS ARE ELIMINATED IS A
QUESTION NOT FREE OF DOUBT. 

THE COMMISSION OUTLINED THE IMPORTANCE OF THE SERVICE OF THE THREE
PROTECTED ROADS TO THE PUBLIC, BUT LIMITED THIS TO A SHOWING THAT, AS A
GEOGRAPHICAL MATTER, THE LINES OF ALL THREE ROADS SUPPLIED NEEDED
SERVICES.  330 I.C.C. 780, 793-794.  AS FAR AS APPEARS FROM ITS
DECISION, THE COMMISSION DID NOT CONSIDER THE UNFAVORABLE IMPACT ON THE
COMMUNITIES NOW SERVED BY MORE THAN ONE OF THE PROTECTED ROADS WHEN THE
THREE ROADS ARE PUT INTO A SINGLE SYSTEM. 

UNDER A HEADING IN ITS OPINION ENTITLED "ADVANTAGES TO PETITIONERS
AND TO THE PUBLIC," THE COMMISSION NOTED THAT, UNDER N&W CONTROL, THE
THREE PROTECTED ROADS COULD ACHIEVE SUBSTANTIAL SAVINGS; AND IT
OBSERVED FURTHER THAT: 

"THE PETITIONERS AS WELL AS THE PUBLIC WILL BENEFIT FROM THE UNIFIED
MANAGEMENT OF WHAT IS NOW SEVERAL SEPARATE COMPANIES OPERATING
INDEPENDENTLY.  AMONG OTHERS, SUCH BENEFITS WILL INCLUDE JOINT ROUTES
OF AFFILIATED LINES, THE PROSPECT OF SINGLE-LINE SERVICE, ELIMINATION
OF INTERCHANGES, IMPROVED SCHEDULES, AND A MORE FLEXIBLE DISTRIBUTION
OF EQUIPMENT.  SUCH BENEFITS WILL INCREASE THE PETITIONERS' ABILITY TO
PRESERVE AND IMPROVE THEIR PRESENT SERVICES AND MEET THE NEEDS OF THE
SHIPPING PUBLIC.  THROUGH EXPANDED PIGGYBACK OPERATIONS, PETITIONERS
WILL BE IN A BETTER POSITION TO MEET THE COMPETITION OF MOTOR
CARRIERS.  BECAUSE MANY INDUSTRIES PREFER TO LOCATE PLANTS WHERE A
SINGLE-LINE THROUGH-ROUTE SERVICE WILL BE AVAILABLE, MORE OPPORTUNITIES
FOR INDUSTRIAL DEVELOPMENT WILL BE CREATED.  AS PART OF THE LARGE N&W
SYSTEM, THE USE OF MORE MODERN EQUIPMENT AND FACILITIES WILL BE
JUSTIFIED, RESULTING IN GREATER EFFICIENCY, IMPROVED OPERATIONS AND
BETTER SERVICE TO THE PUBLIC."  330 I.C.C. 780, 795. 

THESE GENERAL CONCLUSIONS ARE NOT ADDRESSED TO THE OBJECTIONS MADE BY
THE COMMUNITIES AFFECTED.  MOREOVER, THE COMMISSION'S REFERENCES TO
"JOINT ROUTES," "ELIMINATION OF INTERCHANGES," AND A "MORE FLEXIBLE
DISTRIBUTION OF EQUIPMENT," SUGGEST THAT COMMUNITY FEARS OF EVENTUAL
ABANDONMENT OR SCALING DOWN OF FACILITIES ARE WELL FOUNDED. 

THE ISSUES TENDERED BY THE PARTIES IN THE PENNSYLVANIA COURT,
TOUCHING ON THE QUESTIONS JUST DESCRIBED, ARE SUBSTANTIAL AND ARE NOT
NOW BEFORE THIS COURT FOR REVIEW.  THEY HAVE NOT BEEN BRIEFED OR
ARGUED; AND I FAIL TO UNDERSTAND HOW THE COURT CAN PRESUME TO DECIDE
THEM. 

THE COURT SUGGESTS THAT THE COMMUNITY INTERESTS INVOLVED CAN OBTAIN
ADEQUATE PROTECTION FROM POSSIBLE CURTAILMENT OF SERVICE BY ASSERTING
THEIR CHALLENGES "IN APPROPRIATE PROCEEDINGS WHEN SUCH CURTAILMENT IS
SPECIFICALLY PROPOSED."  YET IT SEEMS CLEAR THAT POSTPONING REVIEW OF
THIS QUESTION UNTIL A SUBSEQUENT PROCEEDING ON PROPOSED ABANDONMENTS
WILL NOT PROTECT THE COMMUNITIES ADEQUATELY.  THE INCLUSION OF THE
THREE PROTECTED ROADS INTO THE N&W SYSTEM SURELY PORTENDS SIGNIFICANT
CURTAILMENT AND REROUTING OF THE FACILITIES OF ONE OR MORE OF THE FOUR
ROADS INVOLVED.  ONCE THE PENN-CENTRAL MERGER IS CONSUMMATED, N&W AND
ITS THREE INCLUDED ROADS WILL FACE COMPETITIVE INJURY UNLESS THEIR
OPERATIONS ARE STREAMLINED AND ECONOMIZED.  THE INTERESTS OF THE
COMMUNITIES STRETCHED ALONG THE ROUTES OF E-L, D&H, B&M, AND N&W MIGHT
WELL WEIGH LESS AGAINST THE THREAT OF PENN-CENTRAL COMPETITION ONCE THE
MERGER HAS BEEN CONSUMMATED THAN THOSE INTERESTS WOULD IF THEY WERE
CONSIDERED AND EVALUATED BEFORE ACTUAL COMPETITION FROM A MERGED PENN
CENTRAL SYSTEM IS FELT. 

I DO NOT SUGGEST THAT WE CAN NOW DECIDE WHETHER THE IMPACT ON
COMMUNITY INTERESTS JUSTIFIES DISAPPROVAL BY THE COMMISSION OF THE
INCLUSION OF THE THREE PROTECTED ROADS INTO N&W.  THE QUESTION OF THE
ADEQUACY OF THE COMMISSION'S FINDINGS ON THIS POINT HAS NOT BEEN
PRESENTED EITHER TO THIS COURT OR TO THE NEW YORK DISTRICT COURT; AND
AS POINTED OUT PREVIOUSLY, I HAVE GRAVE DOUBTS THAT THE COMMISSION'S
OPINION IN THE INCLUSION CASE CONTAINS ADEQUATE FINDINGS ON THE ISSUE
TO PERMIT RESPONSIBLE JUDICIAL REVIEW. 

THE CASES PRESENTLY PENDING IN PENNSYLVANIA PRESENT, INTER ALIA, THE
QUESTION WHETHER THE COMMISSION FAILED TO EVALUATE THE ADVERSE IMPACT
OF THE INCLUSION OF THE E-L, D&H, AND B&M INTO THE N&W SYSTEM UPON THE
COMMUNITIES SERVED BY THE CARRIERS INVOLVED 

IN THE ACTION BEFORE THE NEW YORK DISTRICT COURT, HERE FOR REVIEW IN
NOS. 778 AND 779, THAT COURT DISMISSED THE COMPLAINTS OF SHAPP AND THE
CITY OF SCRANTON, WITH PREJUDICE, FOR FAILING TO FILE SUPPLEMENTAL
COMPLAINTS ATTACKING THE COMMISSION'S JUNE 9, 1967, ORDER IN THE PENN
CENTRAL MERGER CASE.  BUT THE COMPLAINTS OF SHAPP AND SCRANTON THAT
WERE DISMISSED WITH PREJUDICE DEALT ONLY WITH THE MERITS OF THE
COMMISSION'S APPROVAL OF THE PENN-CENTRAL MERGER IN ITS APRIL 1966
DECISION IN FINANCE DOCKET NO. 21989.  THEY DID NOT ATTACK THE
COMMISSION'S LATER (JUNE 9, 1967) ORDER IN THE SEPARATELY DOCKETED
INCLUSION PROCEEDINGS.  THUS, THERE IS NO QUESTION OF RES JUDICATA
PRESENT WITH REGARD TO THOSE PARTS OF SHAPP'S AND SCRANTON'S COMPLAINTS
IN THE PENNSYLVANIA COURT WHICH ATTACK THE COMMISSION'S JUNE 9 ORDER IN
THE INCLUSION CASE.  AND, OF COURSE, NO QUESTION OF RES JUDICATA ARISES
WITH RESPECT TO THE COMPLAINTS OF MOOSIC AND POTTSVILLE.  EVEN IF THE
PENN-CENTRAL MERGER AND N&W INCLUSION CASES ARE REGARDED AS
INSEPARABLE, IT IS CLEAR THAT THE COMMUNITY IMPACT ASPECT OF THE
INCLUSION CASE WAS NOT CONSIDERED BY THE NEW YORK COURT.  IT IS EVIDENT
FROM THE RECORD AND THAT COURT'S OPINION THAT THE PRIMARY CONCERN OF
THE COURT RELATED TO VARIOUS ASPECTS OF THE MERGER AND INCLUSION ORDERS
TENDERED BY THE RAILROAD PARTIES WHICH WERE UNRELATED TO AT LEAST SOME
OF THE ATTACKS LEVELED BY THE PARTIES IN THE MIDDLE DISTRICT OF
PENNSYLVANIA, INCLUDING THE QUESTION OF COMMUNITY IMPACT.  (FN6) 

THE COURT SEEMINGLY DECLARES, HOWEVER, A NEW RULE OF RES JUDICATA IN
ITS EFFORT TO PREVENT THE PARTIES IN PENNSYLVANIA FROM PROCEEDING WITH
THEIR ACTIONS CHALLENGING THE BASIC VALIDITY OF THE COMMISSION'S
INCLUSION ORDER ON THE GROUND, INTER ALIA, THAT THE COMMISSION HAS NOT
MADE ADEQUATE FINDINGS ON THE ISSUE OF THE COMMUNITY IMPACT OF THAT
ORDER.  BECAUSE THE BOROUGH OF MOOSIC, WHICH HAD PROPERLY FILED A SUIT
IN THE MIDDLE DISTRICT OF PENNSYLVANIA BUT SAW ITS ACTION STAYED,
REFUSED TO ACCEPT THE INVITATION OF THE NEW YORK DISTRICT COURT (A
COURT IN WHICH MOOSIC WAS NEVER A PARTY, AND WHICH NEITHER ASSUMED
JURISDICTION OVER MOOSIC NOR ATTEMPTED TO DO SO BY MAKING IT AN
INVOLUNTARY PLAINTIFF) TO COME TO NEW YORK AND LITIGATE, THE COURT
HOLDS THAT MOOSIC IS BOUND BY THE DECISION OF THE NEW YORK COURT IN THE
INCLUSION CASE.  THE NEW YORK COURT ITSELF DID NOT ATTEMPT TO HOLD THAT
ITS ORDERS IN THE INCLUSION CASE WOULD BIND MOOSIC IF IT DID NOT JOIN
IN THE NEW YORK PROCEEDINGS.  AND I AM AT A LOSS TO DISCOVER ANY SUCH
PRINCIPLE IN THE LAW OF RES JUDICATA. 

A PARTY IS ENTITLED TO ITS DAY IN COURT; (FN7)  AND I CANNOT FATHOM
HOW A PARTY CAN BE DEPRIVED OF THAT RIGHT OR WAIVE IT BY REFUSING AN
INVITATION - NOT EVEN AN ORDER - TO LITIGATE IN ANOTHER COURT LOCATED
IN ANOTHER STATE.  (FN8)  THE COURT COULD REACH ITS CONCLUSION UNDER
THE DOCTRINE OF RES JUDICATA ONLY IF MOOSIC COULD BE TERMED IN
"PRIVITY" WITH ONE OF THE PARTIES LITIGATING IN THE NEW YORK ACTION. 
SEE, E.G., LAWLOR V. NATIONAL SCREEN SERVICE CORP., 349 U.S. 322; BANK
OF KENTUCKY V. KENTUCKY, 207 U.S. 258; MUTUAL BENEFIT LIFE INS. CO. V.
TISDALE, 91 U.S. 238; IN RE HOWARD, 9 WALL.  175.  BUT SCRANTON AND
SHAPP WERE THE ONLY COMMUNITY INTERESTS IN THE NEW YORK COURT WHO
CHALLENGED THE COMMISSION'S BASIC FINDING THAT THE PENN-CENTRAL MERGER
WAS IN THE PUBLIC INTEREST; AND, AS POINTED OUT, THEIR ALLEGATIONS WERE
NOT DIRECTED TO THE COMMISSION'S ORDER IN THE N&W INCLUSION CASE.  THE
BOROUGH OF MOOSIC IS A SEPARATE COMMUNITY, WITH DISTINCT INTERESTS
BASED ON THE FACILITIES AND LINES OF THE VARIOUS ROADS LOCATED WITHIN
THE BOROUGH, OR SERVING THE BOROUGH.  UNDER SUCH CONDITIONS, MOOSIC
CANNOT PROPERLY BE CALLED IN PRIVITY WITH SCRANTON OR SHAPP.  (FN9) 

THE COURT STATES THAT "FURTHER JUDICIAL REVIEW OR ADJUDICATION OF THE
ISSUES UPON WHICH THE NEW YORK DISTRICT COURT PASSES" IS PRECLUDED BY
ITS DECISION.  BUT, AS I HAVE ALREADY POINTED OUT, THE NEW YORK COURT
DID NOT PASS ON AT LEAST SOME OF THE CONTENTIONS, INCLUDING THE
QUESTION OF THE COMMUNITY IMPACT OF THE INCLUSION ORDER, WHICH ARE
RAISED BY THE PARTIES IN PENNSYLVANIA; NOR WERE THOSE QUESTIONS EVEN
PRESENTED TO THE NEW YORK COURT FOR REVIEW. 

CONGRESS MIGHT, OF COURSE, CHANNEL ALL COMPLAINTS AGAINST AN
ADMINISTRATIVE AGENCY ORDER TO A PARTICULAR COURT.  IT HAS INDEED DONE
SO IN MANY INSTANCES THROUGH PROVISIONS THAT A PERSON AGGRIEVED BY A
CERTAIN TYPE OF ORDER SHOULD SEEK REVIEW IN A DESIGNATED COURT OF
APPEALS.  28 U.S.C. SEC 2341 ET SEQ. (1964 ED., SUPP. II).  WHERE
REVIEW OF AN AGENCY ORDER IS LODGED IN A COURT OF APPEALS AND REVIEW OF
THE SAME AGENCY ORDER IS ALSO SOUGHT IN OTHER SUCH COURTS, THE COURT OF
APPEALS WHERE REVIEW WAS FIRST SOUGHT IS THE ONE TO WHICH ALL OTHER
COURTS ARE DIRECTED TO TRANSFER ALL PROCEEDINGS WITH RESPECT TO THE
AGENCY ORDER.  28 U.S.C. SEC. 2112(A)(1964 ED., SUPP. II).  THAT HAS
THE OBVIOUS ADVANTAGE OF CENTRALIZING AND CONSOLIDATING JUDICIAL REVIEW
AND AVOIDING CONFLICTS WHICH MIGHT OBTAIN IF THE PARTIES COULD GO TO
ANY COURT THAT HAD VENUE.  CONGRESS, HOWEVER, HAS MADE NO SUCH
PROVISION RESPECTING ICC ORDERS.  SECTION 2112, ON WHICH THE COURT
RELIES, PROVIDES IN SUBSECTION (D) THAT ITS PROVISIONS ARE NOT
APPLICABLE TO REVIEW OF AGENCY ORDERS IN THE DISTRICT COURTS.  ICC
ORDERS ARE REVIEWABLE BY THREE-JUDGE DISTRICT COURTS.  28 U.S.C. SEC.
1336(A), SEC. 2325.  THE GENERAL PROVISION FOR TRANSFER OF ACTIONS FROM
ONE DISTRICT COURT TO ANOTHER IS 28 U.S.C. SEC. 1404(A).  BUT 28 U.S.C.
SEC. 1398 PROVIDES, WITH EXCEPTIONS NOT RELEVANT HERE, THAT ACTIONS
CHALLENGING ICC ORDERS "SHALL BE BROUGHT ONLY IN THE JUDICIAL DISTRICT
WHEREIN IS THE RESIDENCE OR PRINCIPAL OFFICE OF ANY OF THE PARTIES
BRINGING SUCH ACTION."  AND WHERE THE JURISDICTION OF MORE THAN ONE
THREE-JUDGE DISTRICT COURT HAS BEEN INVOKED AND A MOTION TO TRANSFER
THE PROCEEDINGS FROM ONE TO ANOTHER HAS BEEN MADE, THE MOTION IS DENIED
IF VENUE WOULD NOT HAVE BEEN PROPER FOR AN ORIGINAL ACTION IN THE
DISTRICT COURT TO WHICH TRANSFER IS SOUGHT.  (FN10)  WHEN A THREE-JUDGE
DISTRICT COURT IN NEW YORK WAS ASKED TO TRANSFER PROCEEDINGS
CHALLENGING AN ICC ORDER TO THE DISTRICT COURT IN MARYLAND, WHERE
ANOTHER LIKE CHALLENGE WAS BEING MADE, IT DECLINED, SAYING, "NONE OF
THE PLAINTIFFS IN THE ACTIONS IN THE SOUTHERN DISTRICT OF NEW YORK HAS
ITS RESIDENCE OR PRINCIPAL OFFICE IN THE DISTRICT OF MARYLAND."  NEW
YORK CENTRAL R. CO. V. UNITED STATES, 200 F. SUPP. 944, 947
(D.C.S.D.N.Y. 1961).  THE NEW YORK DISTRICT COURT, SPEAKING THROUGH
JUDGE FRIENDLY, REFUSED TO INVOKE THE PROCEDURE PROVIDED FOR IN 28
U.S.C. SEC. 2112(A), SINCE THAT SECTION APPLIES, AS ALREADY NOTED, ONLY
TO REVIEW OF AGENCY ORDERS IN THE COURTS OF APPEAL.  ID., AT 949-950. 
THAT COURT WAS MUCH MORE FAITHFUL TO THE SYSTEM OF REVIEW, WHICH
CONGRESS HAS PROVIDED, THAN WE ARE TODAY.  MOOSIC AND SCRANTON BY NO
STRETCH OF THE IMAGINATION HAVE THEIR "RESIDENCE" IN NEW YORK.  BY 28
U.S.C. SEC 1398 VENUE PLAINLY LIES IN PENNSYLVANIA; AND CONGRESS HAS
PROVIDED NO METHOD OF TRANSFERRING THOSE SUITS TO NEW YORK.  (FN11) 
IT IS NOT ONLY HARD CASES WHICH MAKE BAD LAW.  CASES SURCHARGED WITH
THE PRESSURE FOR INSTANT AND IMMEDIATE DECISION DO THE SAME  (FN12)
AND CREATE PRECEDENTS WHICH PLAGUE US. 

IT SEEMS CLEAR TO ME THAT WE MUST PERMIT THE PARTIES TO LITIGATE IN
THE PENNSYLVANIA COURT WHETHER E-L, D&H AND B&M SHOULD BE INCLUDED IN
THE N&W SYSTEM.  BY NO STRETCH OF THE IMAGINATION CAN IT BE ARGUED THAT
THE QUESTION OF THE ADVERSE IMPACT ON THE PENNSYLVANIA COMMUNITIES OF
THE INCLUSION OF THE THREE ROADS IN THE N&W SYSTEM, AS NOW POSED BY THE
PARTIES IN PENNSYLVANIA, WAS HERE FOR REVIEW OR WAS BEFORE THE NEW YORK
DISTRICT COURT.  SEE ERIE-LACKAWANNA R. CO. V. UNITED STATES, 279 F.
SUPP., AT 325-326. 

LAST TERM WE HELD THAT THE ULTIMATE FATE OF THE THREE PROTECTED ROADS
MUST BE DETERMINED BEFORE THE PENN-CENTRAL MERGER COULD BE
CONSUMMATED.  THIS SURELY MEANS THAT JUDICIAL REVIEW MUST FIRST BE HAD
AT LEAST WITH RESPECT TO THE CONTENTIONS WHICH BEAR ON THE BASIC
VALIDITY OF THE INCLUSION ORDER - THAT IS, WHETHER THE ORDER IS IN THE
"PUBLIC INTEREST," AS REQUIRED BY 49 U.S.C. SEC. 5(2)(D) - AS
DISTINGUISHED FROM COLLATERAL QUESTIONS ABOUT THE ORDER WHICH NEED NOT
DELAY THE PENN-CENTRAL MERGER.  THE BASIC VALIDITY OF THE INCLUSION
ORDER CERTAINLY INVOLVES THE IMPACT OF THE INCLUSION ON THE COMMUNITIES
SERVED BY THE THREE LINES IN QUESTION.  WHETHER OTHER QUESTIONS OF LIKE
CHARACTER HAVE SURVIVED NEED NOT NOW BE DETERMINED.  IT IS CERTAIN THAT
AT LEAST THE COMMUNITY-IMPACT ISSUE HAS NOT BEEN RESOLVED.  AND ITS
INTIMATE CONNECTION WITH OUR HOLDING LAST TERM IS EVIDENT.  FOR WHAT IF
IT WERE FOUND THAT BY REASON OF THE IMPACT ON THE COMMUNITIES THE
INCLUSION ORDER WAS NOT IN THE PUBLIC INTEREST?  OUR "PROTECTED" ROADS
WOULD THEN HAVE NO HOME. 

THE STAY ORDER OF THE PENNSYLVANIA COURT HAS EXPIRED, AND THAT COURT
IS NOW PROCEEDING WITH THESE CASES.  FOR PURPOSES OF REVIEW BY THIS
COURT, THE PETITIONS IN NOS. 663, MISC.  AND 664, MISC., SEEKING REVIEW
OF THE STAY ORDER OR MANDAMUS TO COMPEL THE PENNSYLVANIA COURT TO
PROCEED WITH THE CASES, CAN BE DISMISSED.  BUT THOSE PETITIONS DID NOT
PRESENT TO THIS COURT ANY QUESTION CONCERNING THE MERITS OF THE
PARTIES' ACTIONS IN PENNSYLVANIA; RATHER THEY ATTACKED THE VALIDITY OF
THE ORDER STAYING THEIR ACTIONS IN DEFERENCE TO PROCEEDINGS THEN BEING
CONDUCTED IN THE NEW YORK DISTRICT COURT.  AND, AS ALREADY POINTED OUT,
AT LEAST THE QUESTION OF THE COMMUNITY IMPACT OF THE INCLUSION ORDER,
WHICH IS RAISED IN PENNSYLVANIA, HAS NOT BEEN PRESENTED EITHER TO THIS
COURT OR THE NEW YORK DISTRICT COURT FOR REVIEW.  I THEREFORE DISSENT
FROM THE COURT'S HOLDING THAT ALL OF THE PARTIES NOW LITIGATING IN
PENNSYLVANIA ARE PRECLUDED FROM CHALLENGING "THE COMMISSION'S BASIC
FINDINGS THAT THE ...  INCLUSION OF THE PROTECTED LINES IN N&W IS IN
THE PUBLIC INTEREST."  IF THE PENNSYLVANIA COURT BELIEVES THAT THE
ALLEGATIONS OF THE PLAINTIFFS ARE SUBSTANTIAL, IT SHOULD BE FREE TO
ENJOIN THE MERGER UNTIL QUESTIONS CONCERNING THE BASIC VALIDITY OF THE
INCLUSION ORDER, AT LEAST SO FAR AS IMPACT ON THE PENNSYLVANIA
COMMUNITIES IS CONCERNED, HAVE BEEN RESOLVED. 

FN1  THE BOROUGH OF MOOSIC WAS A PARTY TO THE N&W INCLUSION CASE
BEFORE THE COMMISSION, IN WHICH IT OFFERED TESTIMONY AND SUBMITTED
EXCEPTIONS.  IT WAS NOT, HOWEVER, A PARTY BEFORE THE COMMISSION IN THE
PENN-CENTRAL MERGER CASE, REVIEWED BY THIS COURT LAST TERM.  MOOSIC,
HOWEVER, SEEKS TO CHALLENGE THE MERGER ORDER IN THE PENNSYLVANIA
ACTION.  SINCE MOOSIC IS SERVED ONLY BY E-L AND D&H, THE BOROUGH NOTES
THAT IT BECAME CONCERNED WITH THE PROPOSED PENN-CENTRAL MERGER ONLY
AFTER IT LEARNED THAT THE MERGER WAS IN PART RESPONSIBLE FOR THE
PETITIONS OF E-L AND D&H FOR INCLUSION INTO N&W. 

FN2  THE CITY OF SCRANTON AND MILTON J. SHAPP WERE PARTIES TO BOTH
PROCEEDINGS BEFORE THE COMMISSION, AND WERE INTERVENORS IN THE PREVIOUS
ACTION COMMENCED IN THE SOUTHERN DISTRICT OF NEW YORK, WHICH WAS
REVIEWED BY THIS COURT LAST TERM.  THEY WERE THE ONLY PARTIES BEFORE
THE NEW YORK COURT LAST TERM THAT CHALLENGED THE BASIC VALIDITY OF THE
PENN-CENTRAL MERGER.  (SEE BALTIMORE & OHIO R. CO. V. UNITED STATES,
386 U.S. 372, 462 (DISSENTING OPINION OF MR. JUSTICE FORTAS).)  THEIR
ORIGINAL COMPLAINT IN THE NEW YORK COURT WAS DISMISSED WITH PREJUDICE
BY THAT COURT ON OCTOBER 19, 1967, PURSUANT TO RULE 41(B), FED. RULES
CIV. PROC., FOR FAILURE TO FILE A SUPPLEMENTAL COMPLAINT ATTACKING THE
COMMISSION'S ORDER OF JUNE 9, 1967, IN THE PENN-CENTRAL MERGER CASE. 
SCRANTON AND SHAPP WERE NEVER PARTIES TO THE N&W INCLUSION CASE IN THE
NEW YORK COURT. 

MILTON J. SHAPP IS A STOCKHOLDER OF THE PENNSYLVANIA RAILROAD
COMPANY, AND A CITIZEN OF PENNSYLVANIA.  THE CITY OF SCRANTON IS SERVED
BY E-L, D&H AND THE CENTRAL RAILROAD OF NEW JERSEY.  THE CITY'S
INTEREST STEMS BOTH FROM THE FACT THAT THE PENN-CENTRAL MERGER HAS
NECESSITATED THE INCLUSION OF E-L AND D&H INTO N&W, THUS MAKING
SCRANTON A TWO-RAILROAD TOWN, AND FROM ITS FEARS THAT THE PROPOSED N&W
C&O MERGER WILL BE APPROVED ALONG WITH THE INCLUSION OF CNJ THEREIN,
WHICH WOULD REDUCE SCRANTON TO A ONE-RAILROAD TOWN.  SINCE SCRANTON IS
A PART OF THE SCRANTON-WILKES BARRE INDUSTRIAL AND DISTRIBUTION COMPLEX
OF NORTHEASTERN PENNSYLVANIA, IT ALSO HAS AN INTEREST IN THE OTHER
RAILROADS SERVING THAT ECONOMIC AREA - THE READING COMPANY, LEHIGH
VALLEY, AND THE PENNSYLVANIA RAILROAD, TOGETHER WITH THEIR SWITCHING
LINES.  THE CITY AND ITS SURROUNDING AREA CONSTITUTE ONE OF THE MOST
IMPORTANT CENTERS OF RAILROAD ACTIVITY IN THE EASTERN DISTRICT. 

FN3  CITY OF POTTSVILLE WAS A PARTY TO THE COMMISSION PROCEEDINGS
INVOLVING THE PENN-CENTRAL MERGER.  THE CITY IS A MUNICIPAL CORPORATION
LOCATED IN SCHUYLKILL COUNTY, PENNSYLVANIA, AND IS SERVED BY THE
READING COMPANY AND THE PENNSYLVANIA RAILROAD COMPANY. 

FN4  POTTSVILLE (NO. 433) SEEKS REVIEW OF THE ORDER OF THE
PENNSYLVANIA COURT DENYING ITS APPLICATION FOR INTERVENTION IN THE
MOOSIC CASE ON THE GROUND THAT THE CITY WAS NOT LOCATED IN THE MIDDLE
DISTRICT OF PENNSYLVANIA AND "THE DEFENDANT HAS OBJECTED TO PARTIES
RAISING THEIR OBJECTIONS TO THESE I.C.C. ORDERS OTHER THAN IN THE
SOUTHERN DISTRICT OF NEW YORK  ...  ."  THE GOVERNMENT, HOWEVER, HAS NO
OBJECTION TO THE INTERVENTION OF POTTSVILLE BELOW, AND CONCEDES THAT
THE COURT WAS IN ERROR IN ASSUMING THAT THE GOVERNMENT'S DESIRE TO HAVE
ALL ACTIONS CHALLENGING THE COMMISSION'S ORDERS BROUGHT IN THE NEW YORK
COURT CONSTITUTED AN OBJECTION TO POTTSVILLE'S FORMALLY BECOMING A
PARTY IN THE MOOSIC CASE.  I THEREFORE CONCUR WITH THE COURT AND AGREE
TO VACATE THE ORDER DENYING POTTSVILLE'S APPLICATION FOR LEAVE TO
INTERVENE AND TO REMAND TO THE DISTRICT COURT WHERE POTTSVILLE MAY
RENEW ITS APPLICATION. 

FN5  THIS BRUSQUE TREATMENT OF THE COMMUNITY ALLEGATIONS CONTRASTS
SHARPLY WITH THE LENGTHY DISCUSSION OF CERTAIN COMMUNITY INTEREST
ASPECTS OF THE PENN-CENTRAL MERGER FOUND IN THE RECOMMENDED REPORT IN
FINANCE DOCKET NO. 21989, AT 229-286. 

FN6  WITH RESPECT TO THE N&W INCLUSION ACTION, THE COURT BELOW NOTED
THAT ONLY "TWO POINTS COME EVEN CLOSE TO THE LARGER PUBLIC INTEREST IN
THE TRANSACTION  ...  ."  THOSE POINTS WERE:  FIRST, N&W'S COMPLAINT
THAT THE COMMISSION SHOULD HAVE CONSIDERED THE DESIRABILITY OF
INCLUDING THE THREE PROTECTED ROADS ALONG WITH THE READING CO. AND THE
CENTRAL OF NEW JERSEY AS WHOLLY OWNED SUBSIDIARIES, NOT IN THE N&W
SYSTEM, BUT IN THE PROPOSED N&W-B&O-C&O SYSTEM; AND SECOND, N&W'S
ASSERTION THAT THE COMMISSION ERRED IN FAILING TO FIND THAT INCLUSION
OF ANY OF THE THREE PROTECTED ROADS IN THE PENN-CENTRAL SYSTEM RATHER
THAN THE N&W SYSTEM WOULD NOT BE IN THE PUBLIC INTEREST.  N&W HAS
PURSUED THE LATTER ARGUMENT IN THIS COURT, ASSERTING THAT BY FAILING TO
MAKE THE SUGGESTED FINDING THE COMMISSION HAS LEFT OPEN THE POSSIBILITY
THAT ONE OR MORE OF THE THREE PROTECTED ROADS CAN EVENTUALLY OBTAIN
INCLUSION IN THE MERGED PENN-CENTRAL SYSTEM IF INCLUSION IN THE N&W
SYSTEM IS NOT VOTED BY SHAREHOLDERS.  THE COURT REJECTED BOTH OF THESE
CONTENTIONS, HOLDING THAT THE COMMISSION WAS NOT REQUIRED TO INJECT THE
N&W-B&O-C&O PROPOSAL INTO THE INSTANT PROCEEDING OR TO MAKE THE
NEGATIVE FINDING REQUESTED BY N&W TO PRECLUDE THE POSSIBILITY OF
EVENTUAL INCLUSION OF ONE OR MORE OF THE THREE ROADS IN THE PENN
CENTRAL SYSTEM.  THE COURT DIRECTED THE REMAINDER OF ITS OPINION
DEALING WITH THE N&W INCLUSION CASE TO EXAMINING THE FINANCIAL TERMS OF
THE INCLUSION ORDER, THE EMPLOYEE PROTECTIVE CONDITIONS IMPOSED BY THE
COMMISSION, THE COMMISSION'S GENERAL STANDARD FOR, AND METHOD OF,
VALUATION, CERTAIN ATTACKS BY E-L, D&H AND B&M ON MATTERS OF VALUATION
PECULIAR TO EACH ROAD, AND THE POSSIBILITY OF NON-INCLUSION OF D&H
AND/OR B&M IN THE N&W SYSTEM - NONE OF WHICH INVOLVED THE COMMUNITY
IMPACT PROBLEM.  ERIE-LACKAWANNA R. CO. V. UNITED STATES, 279 F. SUPP.,
AT 336-352 (D.C.S.D.N.Y. 1967). 

FN7  HANSBERRY V. LEE, 311 U.S. 32. 

FN8  MOOSIC STATES IN ITS PETITION (NO. 663, MISC.) THAT IT DID NOT
WISH TO LITIGATE IN NEW YORK BECAUSE THAT COURT HAD DECIDED TO TREAT
THE PENN-CENTRAL MERGER CASE AND THE N&W INCLUSION CASE AS "SEPARATE
PROCEEDINGS FOR JUDICIAL REVIEW PURPOSES," AND SUCH AN APPROACH WOULD
PREJUDICE MOOSIC "SINCE THE ADVERSE IMPACT OF N&W INCLUSION MUST BE
CONSIDERED AS AN INTEGRAL PART OF ANY JUDICIAL REVIEW OF PRR-NYC, AND
VICE VERSA."  MOOSIC ALSO NOTES THAT "THE COMMUNITY PUBLIC INTEREST
ISSUES INHERENT IN ITS CASE  ...  ARE CLEARLY OUTSIDE THE SCOPE OF THE
LITIGATION IN THE OTHER FORUMS." 

FN9 IN HANSBERRY V. LEE, 311 U.S. 32, 43, WE STATED THAT EVEN "WHEN
THE ONLY CIRCUMSTANCE DEFINING THE CLASS IS THAT THE DETERMINATION OF
THE RIGHTS OF ITS MEMBERS TURNS UPON A SINGLE ISSUE OF FACT OR LAW," IT
MIGHT BE POSSIBLE FOR A STATE CONSTITUTIONALLY TO ADOPT A PROCEDURE
WHEREBY THE JUDGMENT COULD BE MADE BINDING ON ALL MEMBERS OF THE CLASS;
BUT ONLY IF "THE PROCEDURE WERE SO DEVISED AND APPLIED AS TO INSURE
THAT THOSE PRESENT ARE OF THE SAME CLASS AS THOSE ABSENT AND THAT THE
LITIGATION IS SO CONDUCTED AS TO INSURE THE FULL AND FAIR CONSIDERATION
OF THE COMMON ISSUE."  THIS COURT IN THE INSTANT CASE MAKES NO INQUIRY,
HOWEVER, WHETHER MOOSIC CAN BE TERMED A MEMBER OF THE "SAME CLASS" AS
ONE OR MORE OF THE PARTIES IN THE NEW YORK COURT; OR WHETHER THE ISSUES
ARE "COMMON," AND IF THEY ARE, WHETHER THE PROCEEDINGS HAVE BEEN
CONDUCTED TO ENSURE THEIR "FULL AND FAIR CONSIDERATION." 

THE COURT DOES NOT APPEAR TO ARGUE THAT THE ACTION IN THE NEW YORK
COURT WAS A "CLASS ACTION" WITHIN RULE 23, FED. RULES CIV. PROC.
INDEED, THE COURT BELOW DID NOT TREAT IT AS SUCH, NOR MAKE THE FINDINGS
(RULE 23(A) AND (B)) OR GIVE THE TYPE OF NOTICE (RULE 23(C)) REQUIRED
BY THAT RULE FOR CLASS ACTIONS. 

I CAN FIND NO AUTHORITY FOR A RULE WHICH WOULD REQUIRE A PARTY NOT
UNDER THE JURISDICTION OF THE INVITING COURT TO RESPOND AFFIRMATIVELY
TO AN INVITATION TO INTERVENE OR ELSE BE BOUND BY AN ADVERSE DECISION. 
INDEED, CHASE NATIONAL BANK V. NORWALK, 291 U.S. 431, WOULD SUGGEST
THAT THE RULE IS TO THE CONTRARY.  THE COURT STATED IN THAT CASE THAT
"THE LAW DOES NOT IMPOSE UPON ANY PERSON ABSOLUTELY ENTITLED TO A
HEARING THE BURDEN OF VOLUNTARY INTERVENTION IN A SUIT TO WHICH HE IS A
STRANGER  ...  .  UNLESS DULY SUMMONED TO APPEAR IN A LEGAL PROCEEDING,
A PERSON NOT A PRIVY MAY REST ASSURED THAT A JUDGMENT RECOVERED THEREIN
WILL NOT AFFECT HIS LEGAL RIGHTS."  ID., AT 441. 

FN10  OUR DECISIONS IN HOFFMAN V. BLASKI, 363 U.S. 335, AND VAN DUSEN
V. BARRACK, 376 U.S. 612, INDICATE THAT SEC. 1404(A) PERMITS TRANSFER
ONLY TO A DISTRICT COURT IN WHICH THE PLAINTIFF WOULD HAVE BEEN
ENTITLED, WITHOUT REGARD TO CONSENT BY THE DEFENDANT, TO BRING HIS
ACTION ORIGINALLY.  MOOSIC AND SCRANTON COULD NOT HAVE BROUGHT AN
ORIGINAL ACTION IN NEW YORK. 

FN11  IF STATUTORY PROVISIONS PROVIDE THAT A PERSON AGGRIEVED MUST
LITIGATE HIS CONTENTIONS IN A SPECIFIC FEDERAL COURT, FAIR NOTICE HAS
BEEN GIVEN THAT IF HE DOES NOT APPEAR AND PRESENT HIS CLAIMS IN THE
DESIGNATED COURT, HE WILL FORFEIT HIS RIGHT TO BE HEARD.  BUT WHEN
THERE IS NO SUCH STATUTORY PROVISION AND WHEN INDEED THE APPLICABLE
STATUTE PROVIDES FOR REVIEW IN THE PENNSYLVANIA DISTRICT COURT, THE
PLACE OF RESIDENCE, IS DUE PROCESS SATISFIED WHEN AN AGGRIEVED PERSON,
WHO WAS NEVER A PARTY IN THE NEW YORK COURT OR IN PRIVITY WITH ANY
PARTY THERE, IS DEPRIVED OF A RIGHT TO BE HEARD ON AN ISSUE NOT
LITIGATED IN THAT COURT, SIMPLY BECAUSE HE WAS INVITED TO PARTICIPATE
AND THE UNITED STATES WAIVED OBJECTIONS?  THAT, I SUBMIT, IS NOT A
WHOLLY FRIVOLOUS QUESTION. 

NATIONWIDE SERVICE OF PROCESS WAS AVAILABLE TO THE NEW YORK COURT. 
28 U.S.C. SEC 2321.  THE UNITED STATES AND THE ICC HAD WAIVED ALL
OBJECTIONS TO VENUE AGAINST ANY PARTY SEEKING TO LITIGATE IN NEW YORK. 
BUT ALTHOUGH THE UNITED STATES AND THE COMMISSION MOVED SUCCESSFULLY IN
THE NEW YORK COURT UNDER RULE 19, FED. RULES CIV. PROC., TO JOIN N&W AS
AN INVOLUNTARY PLAINTIFF IN D&H'S ACTION CHALLENGING THE INCLUSION
ORDER, THEY MADE NO EFFORT TO JOIN MOOSIC PURSUANT TO THAT RULE. 

FN12  "GREAT CASES LIKE HARD CASES MAKE BAD LAW.  FOR GREAT CASES ARE
CALLED GREAT, NOT BY REASON OF THEIR REAL IMPORTANCE IN SHAPING THE LAW
OF THE FUTURE, BUT BECAUSE OF SOME ACCIDENT OF IMMEDIATE OVERWHELMING
INTEREST WHICH APPEALS TO THE FEELINGS AND DISTORTS THE JUDGMENT. 
THESE IMMEDIATE INTERESTS EXERCISE A KIND OF HYDRAULIC PRESSURE WHICH
MAKES WHAT PREVIOUSLY WAS CLEAR SEEM DOUBTFUL, AND BEFORE WHICH EVEN
WELL SETTLED PRINCIPLES OF LAW WILL BEND."  HOLMES, J., DISSENTING, IN
NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197, 400-401. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART IN NOS. 778, 779, 830-836. 
THESE CASES PRESENT AT LEAST ONE SERIOUS PROBLEM UNDER 49 U.S.C. SEC.
5(2).  SECTION 5(2)(A) AUTHORIZES TWO OR MORE CARRIERS TO CONSOLIDATE
PROVIDED THAT THE COMMISSION FINDS UNDER SUBDIVISION (B) THAT THE
"TERMS AND CONDITIONS" ARE "JUST AND REASONABLE" AND "WILL BE
CONSISTENT WITH THE PUBLIC INTEREST."  MOREOVER, UNDER SUBDIVISION (D)
OF SEC. 5(2), THE COMMISSION "AS A PREREQUISITE TO ITS APPROVAL" OF THE
MERGER MAY REQUIRE THE INCLUSION OF ANOTHER RAILROAD IN THE TERRITORY
"UPON EQUITABLE TERMS."    I DO NOT THINK THE COMMISSION HAS MADE THOSE
NECESSARY FINDINGS UNDER SEC. 5(2). 

THE MAJORITY OPINION ADOPTS A PIECEMEAL APPROACH TO JUDICIAL REVIEW
OF THE COMMISSION'S ORDERS, WHICH, AS I VIEW IT, DOES NOT CONFORM WITH
OUR DUTY OF JUDICIAL REVIEW IN ONE RESPECT.    IN THE MAJORITY OPINION
LAST TERM, MR. JUSTICE CLARK NOTED THAT "OUR EXPERIENCE WITH OTHER
MERGERS, AND COMMON SENSE AS WELL, INDICATE THAT THE 'SCRAMBLING' GOES
FAST BUT THE UNSCRAMBLING IS INTERMINABLE AND SELDOM EFFECTIVELY
ACCOMPLISHED."  BALTIMORE & OHIO R. CO. V. UNITED STATES, 386 U.S. 372,
392.  BECAUSE OF THIS, WE REFUSED TO ALLOW THE PENN-CENTRAL MERGER TO
BE CONSUMMATED BEFORE THE FATE OF THE THREE PROTECTED ROADS (THE ERIE
LACKAWANNA, DELAWARE & HUDSON, AND BOSTON & MAINE) HAD BEEN
DETERMINED.  SOME ASPECTS OF THE COMMISSION'S MERGER AND INCLUSION
ORDERS - THOSE WHICH DO NOT GO TO THE HEART OF THE COMMISSION'S
DECISION (THAT IS, ITS DETERMINATION THAT THE MERGER OR INCLUSION IS IN
THE "PUBLIC INTEREST") - CAN AWAIT LATER JUDICIAL REVIEW.  EXAMPLES
WOULD BE THE CONTENTIONS OF READING AND THE E-L BONDHOLDERS.  BUT I
FAIL TO SEE HOW WE CAN AFFIRM THE COMMISSION'S DECISION THAT THIS
ENTIRE TRANSACTION IS IN THE "PUBLIC INTEREST" WITHOUT CONSIDERING
THOSE POINTS RAISED BY THE PARTIES WHICH DO GO TO THE HEART OF THE
CONTROVERSY.  I REFER SPECIFICALLY TO THE CONTENTIONS OF THE PARTIES IN
THE MIDDLE DISTRICT OF PENNSYLVANIA (SEE MY PARTIAL DISSENT IN NOS.
433, 663, MISC., AND 664, MISC.), AND TO NOS. 830 AND 831 WHICH INVOLVE
CLAIMS OF THE NEW HAVEN CREDITOR INTERESTS, TO WHICH I NOW TURN. 

CERTAIN BONDHOLDER INTERESTS OF THE NEW YORK, NEW HAVEN & HARTFORD
RAILROAD COMPANY (NEW HAVEN) ATTACK THE COMMISSION'S FAILURE TO PROVIDE
FOR ACTUAL INCLUSION OF THE NEW HAVEN IN THE PENN-CENTRAL SYSTEM AS A
CONDITION SIMULTANEOUS WITH, OR PRECEDENT TO, CONSUMMATION OF THE
MERGER.  FOLLOWING THE FILING OF THESE APPEALS, THE COMMISSION, ON
NOVEMBER 16, 1967, ISSUED A DECISION CONCERNING THE TREATMENT OF THE
NEW HAVEN IN THE MERGER PLAN, STYLING THE OPINION AS A SUPPLEMENTAL
ORDER IN THE PENN-CENTRAL MERGER CASE.  PENNSYLVANIA RAILROAD CO. -
MERGER - NEW YORK CENTRAL RAILROAD CO., FINANCE DOCKET NO. 21989, 331
I.C.C. 643.  ON THAT DATE THE COMMISSION APPROVED AS A FIRST STEP IN
THE NEW HAVEN'S REORGANIZATION A CONVEYANCE OF ITS ASSETS TO PENN
CENTRAL; IT FIXED TERMS FOR INTERIM FINANCING ON THE BASIS OF A
$25,000,000 LOAN COMMITMENT FROM PENN-CENTRAL; AND IT PROVIDED FOR THE
SHARING OF NEW HAVEN'S OPERATING LOSSES BY PENN-CENTRAL, ON A SLIDING
SCALE, PENDING NEW HAVEN'S INCLUSION IN THE MERGED SYSTEM.  THE
COMMISSION ALSO SPECIFICALLY PROVIDED THAT CONSUMMATION OF THE MERGER
WOULD CONSTITUTE IRREVOCABLE ASSENT BY PENN-CENTRAL TO ENTER INTO THE
INTERIM FINANCING ARRANGEMENT. 

THE SALE AGREEMENT PROPOSED BY THE NEW HAVEN TRUSTEES PROVIDED FOR
NEW HAVEN'S PHYSICAL ASSETS AND INVESTMENTS TO BE PURCHASED BY PENN
CENTRAL FREE AND CLEAR OF LIENS AND OTHER ENCUMBRANCES.  THE LIEN OF
THE NEW HAVEN CREDITORS' INTERESTS WOULD SHIFT FROM NEW HAVEN'S PRESENT
ASSETS TO THE ASSETS HELD BY THE TRUSTEES AS THE PROCEEDS OF THE SALE. 
PROVISION FOR THE PRESERVATION OF PRIORITIES AND RIGHTS OF CLAIMANTS
WAS MADE IN THE PLAN.  THE TRUSTEES ORIGINALLY SUBMITTED, PURSUANT TO
SEC 77 OF THE BANKRUPTCY ACT,  (FN1)  A PLAN OF REORGANIZATION TO BE
ACCOMPLISHED IN TWO STEPS.  INITIALLY, ONLY THE FIRST STEP, PROVIDING
FOR THE SALE OF THE NEW HAVEN TO THE MERGED PENN-CENTRAL SYSTEM, WAS
PRESENTED TO THE COMMISSION FOR APPROVAL.  AFTER THAT PART OF THE PLAN
HAD BEEN COMPLETED, THE TRUSTEES INTENDED TO IMPLEMENT THE SECOND STEP,
RELATING TO DISTRIBUTING THE ASSETS OF THE NEW HAVEN ESTATE OR ISSUING
NEW NEW HAVEN SECURITIES. 

CERTAIN BONDHOLDER INTERESTS CONTESTED THE LEGALITY OF THE TWO-STEP
PLAN.  BUT IN A DECISION RENDERED IN MAY 1967 THE COURT OF APPEALS HELD
THAT A DECISION ON THE LEGALITY OF SUCH A PLAN WOULD BE PREMATURE.  IN
THE MATTER OF THE NEW YORK, NEW HAVEN & HARTFORD R. CO., 378 F.2D 635
(C.A.2D CIR. 1967).  IN SEPTEMBER 1967 THE NEW HAVEN TRUSTEES FILED THE
SECOND PART OF THEIR PLAN, BUT REQUESTED THE COMMISSION TO MAKE
IMMEDIATE FINDINGS REQUIRED UNDER SEC. 5(2)(D) OF THE INTERSTATE
COMMERCE ACT WITH RESPECT TO THE FIRST PART OF THE PLAN, RATHER THAN
AWAIT COMPLETION OF THE REORGANIZATION PROCEEDINGS.  CREDITOR INTERESTS
OPPOSED THIS REQUEST BY ARGUING THAT CREDITOR CLAIMS, IN THE ORDER OF
PRIORITY, WOULD HAVE TO BE CONSIDERED BY THE COMMISSION BEFORE IT COULD
ARRIVE AT "EQUITABLE TERMS" WITHIN THE MEANING OF SEC. 5(2)(D).  THE
COMMISSION CHOSE TO ADOPT THE PROCEDURE SUGGESTED BY THE TRUSTEES, AND
APPROVED THE PLAN FOR THE SALE OF ASSETS INDEPENDENTLY OF A COMPLETE
REORGANIZATION PLAN. 

IN SHORT, THE COMMISSION CONCLUDED THAT AN IMMEDIATE DECISION ON THE
QUESTION UNDER SEC. 5(2)(D) OF "EQUITABLE TERMS" FOR THE SALE OF ASSETS
WOULD SATISFY "A LEGAL PRELIMINARY TO NH INCLUSION WITHOUT DELAY ONCE
THE PENN-CENTRAL MERGER IS CONSUMMATED."  (FN2)  ON THE OTHER HAND, IT
SAID, DELAY OF SUCH A DECISION UNTIL COMPLETION OF NEW HAVEN'S
REORGANIZATION WOULD PREVENT A TIMELY RESCUE OF THE NEW HAVEN AS AN
OPERATING COMMON CARRIER.  THUS, THE COMMISSION OPTED IN FAVOR OF
"IMPROVED SERVICE THROUGH A CONSUMMATED PENN-CENTRAL MERGER INCLUDING
AN OPERATIONAL NH, WHILE THE NH CREDITORS ARE FREED TO LITIGATE AT WILL
THE DISTRIBUTION OF THEIR ESTATE."  (FN3) 

THE BONDHOLDER INTERESTS BEFORE THIS COURT CONTEND THAT UNDER EITHER
THE MAJORITY OR DISSENTING OPINIONS IN ST. JOE PAPER CO. V. ATLANTIC
COAST LINE R. CO., 347 U.S. 298, ANY SALE OF THE NEW HAVEN TO THE
MERGED PENN-CENTRAL SYSTEM WOULD REQUIRE AT LEAST ITS SUBMISSION TO A
VOTE OF BONDHOLDERS.  SEE ALSO RECONSTRUCTION FINANCE CORP. V. DENVER &
RIO GRANDE WESTERN R. CO., 328 U.S. 495.  THE BONDHOLDERS ALSO ARGUE
THAT THE COMMISSION IGNORED THE ADMONITION OF THIS COURT IN PALMER V.
MASSACHUSETTS, 308 U.S. 79, 88, THAT THE POWERS OF THE COMMISSION AND
COURTS UNDER SEC 77 OF THE BANKRUPTCY ACT CAN PROPERLY BE EXERCISED
ONLY IN THE CONTEXT OF "A COMPLETE PLAN OR REORGANIZATION FOR AN
INSOLVENT ROAD." 

IN JUSTIFYING ITS ACTION, THE COMMISSION NOTED THAT EXCEPT FOR
SUBSECTIONS (B)(1), (4), AND (5), OF SEC 77, THERE IS NO PROVISION IN
SEC 77 THAT DEALS SPECIFICALLY WITH THE FORM OR CONTENT OF A
REORGANIZATION PLAN.  THEREFORE, NO LANGUAGE OF SEC 77 WAS BELIEVED TO
PROHIBIT EVALUATION OF THE NEW HAVEN PROPERTIES AND THE APPROVAL OF
THEIR SALE BEFORE APPROVAL OF A PLAN FOR RESTRUCTURING THE NEW HAVEN. 
THE COMMISSION NOTED THE DOCTRINE OF "WASTING ASSETS" EMPLOYED UNDER
CHAPTER X OF THE BANKRUPTCY ACT TO PERMIT TWO-STEP PLANS OF
REORGANIZATION, AND ANALOGIZED THAT DOCTRINE TO THE INSTANT CASE -
SINCE IN THE VIEW OF THE COMMISSION, THE NEW HAVEN COULD PROPERLY BE
CLASSIFIED AS A "WASTING ASSET."  (FN4) 

WITH RESPECT TO INTERIM FINANCING OF THE NEW HAVEN, THE COMMISSION
APPROVED A LOAN PROPOSAL UNDER WHICH PENN-CENTRAL WOULD MAKE AVAILABLE
TO THE NEW HAVEN A TOTAL OF $25,000,000 OVER THREE YEARS TO ENABLE THE
NEW HAVEN TO CONTINUE ITS OPERATIONS UNTIL ITS ASSETS WERE CONVEYED TO
PENN-CENTRAL.  THE COMMISSION NOTED THAT THE LOAN AUTHORIZATION DID NOT
IMPAIR THE JURISDICTION OF THE REORGANIZATION COURT SINCE THAT COURT
WOULD STILL HAVE TO APPROVE ISSUANCE OF TRUSTEES' CERTIFICATES TO
EVIDENCE THOSE ADVANCES.  (FN5) 

THE LOAN PROVISIONS APPROVED BY THE COMMISSION PROVIDED FURTHER THAT
ANY TIME THE CASH BALANCE OF THE NEW HAVEN FELL BELOW $5,000,000, THE
TRUSTEES COULD BORROW FROM THE $25,000,000 COMMITMENT ENOUGH MONEY TO
EQUAL A $5,000,000 CASH BALANCE PLUS $2,500,000.  THE COMMISSION SET AN
INTERVAL OF AT LEAST THREE MONTHS BETWEEN LOAN TAKEDOWNS, AND PROVIDED
THAT ANY REDUCTION IN THE AID WHICH NEW HAVEN WAS RECEIVING FROM THE
NEW ENGLAND STATES WOULD REDUCE CORRESPONDINGLY THE AMOUNT THAT COULD
BE BORROWED FROM PENN-CENTRAL.  THE INTEREST RATE ON THE LOANS WAS
DECLARED TO BE THE PRIME RATE OF THE MORGAN GUARANTY TRUST COMPANY OF
NEW YORK CITY PREVAILING AT THE TIME THE LOAN IS TAKEN DOWN.  DECEMBER
13, 1971, WAS DESIGNATED AS THE MATURITY DATE FOR THE TRUSTEES'
CERTIFICATES.  FINALLY, THE LOAN PROVISIONS WOULD BE TERMINATED UPON
THE OCCURRENCE OF ANY OF THE FOLLOWING EVENTS:  (1) ACQUISITION OF THE
NEW HAVEN BY PENN-CENTRAL; (2) A FINAL AND EFFECTIVE ORDER BY A
REGULATORY AUTHORITY OR COURT GRANTING PERMISSION TO LIQUIDATE THE NEW
HAVEN OR TO DISPOSE OF IT TO SOMEONE OTHER THAN PENN-CENTRAL; (3)
CESSATION OF THE NEW HAVEN OPERATION AS A GOING RAILROAD; (4) A
DETERMINATION THAT PENN-CENTRAL SHALL NOT ACQUIRE THE NEW HAVEN; (5)
THE EXPIRATION OF THREE YEARS FROM THE DATE OF THE PENN-CENTRAL
MERGER. 

ALTHOUGH THE NEW HAVEN CREDITORS ARGUED BEFORE THE COMMISSION THAT
THEIR INTERESTS WOULD BE REDUCED BY THE ISSUANCE OF THE TRUSTEES'
CERTIFICATES, WHICH WOULD ACQUIRE PRECEDENCE OVER THEIR CLAIMS AGAINST
THE NEW HAVEN ESTATE, THE COMMISSION REASONED THAT: 

"WE CONSIDER SUCH A RESULT PART OF THE PROCESS OF DISTRIBUTING THE
BURDENS OF THE NH'S OPERATIONS.   IT IS A FUNDAMENTAL ASPECT OF OUR
FREE ENTERPRISE ECONOMY THAT PRIVATE PERSONS ASSUME THE RISKS ATTACHED
TO THEIR INVESTMENTS, AND THE NH CREDITORS CAN EXPECT NO LESS BECAUSE
THE NH'S PROPERTIES ARE DEVOTED TO A PUBLIC USE.  INDEED, THE
ASSISTANCE THE CREDITORS ARE RECEIVING FROM THE STATES AND WOULD
RECEIVE FROM PENN-CENTRAL THROUGH THE SHARING OF OPERATING LOSSES WOULD
RAISE SOME OF THAT BURDEN FROM THEIR SHOULDERS."  (FN6) 

THE COMMISSION DID NOT PLACE ALL OF NEW HAVEN'S OPERATING LOSSES ON
PENN-CENTRAL DURING THE PERIOD OF THE LOAN AGREEMENT.  THE AMOUNT TO BE
ABSORBED BY PENN-CENTRAL IS GOVERNED BY A SPECIFIC FORMULA APPROVED BY
THE COMMISSION.  (FN7)  WITH RESPECT TO DECIDING HOW MUCH OF THE LOSS
WAS TO BE ASSUMED BY PENN-CENTRAL UNDER THE FORMULA, THE COMMISSION
NOTED TWO MAIN FACTORS:  (1) THE ADMONITION OF THE REORGANIZATION COURT
THAT SAFEGUARDS AGAINST ENDLESS LITIGATION BY NEW HAVEN CREDITORS
SHOULD BE ESTABLISHED; AND (2) IN THE INTERIM PERIOD BEFORE CONVEYANCE
OF NEW HAVEN'S ASSETS TO PENN-CENTRAL, THE OPPORTUNITIES TO INTEGRATE
NEW HAVEN'S OPERATIONS INTO THE PENN-CENTRAL SYSTEM WOULD BE
RESTRICTED, SO THAT MANY OPERATING ECONOMIES AND EFFICIENCIES COULD NOT
BE REALIZED UNTIL COMPLETE INCLUSION OF THE NEW HAVEN.  THE COMMISSION
FELT THAT THE EXISTENCE OF THESE FACTORS TENDED TO LIMIT THE PORTION OF
NEW HAVEN LOSSES WHICH PENN-CENTRAL SHOULD HAVE TO ABSORB UNDER THE
FORMULA.  THE FINAL AMOUNT DECIDED UPON WAS 100% OF THE LOSS DURING THE
FIRST YEAR, 50% DURING THE SECOND, AND 25% DURING THE THIRD.  FURTHER,
THE COMMISSION SET $5,500,000 AS THE MAXIMUM PENN-CENTRAL SHARE OF
OPERATING LOSSES IN ANY ONE YEAR. 

FINALLY, THE COMMISSION PROVIDED THAT UNDER THE PURCHASE AGREEMENT,
THE TRUSTEES' CERTIFICATES EVIDENCING THE LOANS WERE TO BE OFFSET IN AN
AMOUNT EQUAL TO THE OPERATING LOSS ABSORBED BY PENN-CENTRAL.  THE
COMMISSION ASSERTED THAT THE BURDENS ON THE NEW HAVEN CREDITORS CAUSED
BY THE LOAN-LOSS ABSORPTION AGREEMENT WOULD BE RELATIVELY SMALL - AND
NOT SIGNIFICANTLY DIFFERENT FROM THE BURDENS UNDER A LEASE AGREEMENT. 
THE COMMISSION EXPECTED THAT THE TOTAL AMOUNT LOANED BY PENN-CENTRAL
OVER THREE YEARS WOULD PROBABLY BE "SUBSTANTIALLY LESS THAN $25
MILLION."  (FN8)  IT NOTED THAT THE REQUIREMENTS FOR LOANS WOULD
INCREASE IN RELATION TO THE OPERATING LOSSES OF THE NEW HAVEN; BUT AS
THE OPERATING LOSSES INCREASED, PENN-CENTRAL WOULD ABSORB A PART OF THE
INCREASE.  AT THE SAME TIME, THE COMMISSION POINTED OUT THAT SINCE THE
AMOUNT OF LOSSES TO BE ASSUMED BY PENN-CENTRAL WOULD DECLINE EACH YEAR
(FROM 100% TO 50% TO 25%), THE CREDITORS WOULD HAVE MUCH TO GAIN BY
SPEEDILY COMPLETING THE REORGANIZATION PROCEEDINGS. 

THE BONDHOLDER INTERESTS ATTACK THE OPERATING LOSS PROVISIONS OF THE
COMMISSION'S ORDER - CONTENDING THAT PENN-CENTRAL SHOULD BE REQUIRED TO
ABSORB ALL THE OPERATING LOSSES OF THE NEW HAVEN.   THEY ALSO ASSERT
THAT THE PURCHASE PRICE APPROVED BY THE COMMISSION FOR THE SALE OF NEW
HAVEN ASSETS TO PENN-CENTRAL ($125,000,000, BEING THE VALUE OF THE
CONSIDERATION TO BE RECEIVED BY THE NEW HAVEN) IS TOO LOW.  FURTHER, AS
INDICATED ABOVE, THEY CONTEND THAT THE COMMISSION IS WITHOUT AUTHORITY
TO ADOPT A TWO-STEP REORGANIZATION PLAN WHICH PREVENTS THE BONDHOLDERS
FROM VOTING ON THE FIRST ASPECT OF THE PLAN - THE SALE OF ASSETS. 

THE NEW HAVEN TRUSTEES ARGUE THAT THE BONDHOLDERS WILL HAVE THE
OPPORTUNITY TO OBJECT TO THESE ACTIONS OF THE COMMISSION IN THE
REORGANIZATION COURT AND TO SEEK JUDICIAL REVIEW OF ITS ACTION. 
INDEED, OSCAR GRUSS & SON (APPELLANT IN NO. 830) AND THE BONDHOLDERS'
COMMITTEE (APPELLANT IN NO. 831) HAVE INDICATED THAT THEY INTEND TO
SEEK JUDICIAL REVIEW OF THE NOVEMBER 16 ORDER.  THE TRUSTEES ALSO
SUGGEST THAT THE QUESTIONS PRESENTED INVOLVE ONLY THE QUANTUM OF
CONSIDERATION TO BE PAID BY PENN-CENTRAL IN IMPLEMENTATION OF ITS
EVENTUAL TAKE-OVER OF THE NEW HAVEN, AND DO NOT MERIT POSTPONING
CONSUMMATION OF THE PENN-CENTRAL MERGER. 

ON THE OTHER HAND, THE BONDHOLDERS CONTEND THAT THEIR OBJECTIONS TO
THE COMMISSION'S NOVEMBER 16 ORDER ARE SO SUBSTANTIAL THAT EVEN IF THEY
HAVE ONLY PARTIAL SUCCESS ON JUDICIAL REVIEW, THE FEASIBILITY OF
INCLUSION WOULD BE OPEN TO SERIOUS QUESTION.  IF INCLUSION OF THE NEW
HAVEN IN THE PENN-CENTRAL SYSTEM COULD NOT BE ACCOMPLISHED, A MAJOR
UNDERPINNING IN THE COMMISSION'S FINDING THAT THE MERGER WAS IN THE
PUBLIC INTEREST WOULD BE REMOVED.  (FN9)  THE NEW HAVEN MIGHT THEN HAVE
TO BE LIQUIDATED IN THE REORGANIZATION COURT.  PERHAPS EVENTUAL
OPERATION BY THE FEDERAL GOVERNMENT, OR BY THE STATES CONCERNED, WOULD
BE THE OUTCOME.  IN FACT, APPELLANT IN NO. 831 HAS PENDING BEFORE THE
REORGANIZATION COURT A PETITION FOR IMMEDIATE LIQUIDATION OF THE NEW
HAVEN.  THE BONDHOLDERS, OF COURSE, SEEK TO RECOVER AS MUCH OF THEIR
INVESTMENT AS POSSIBLE.  TO THE EXTENT THAT ANY LOANS FROM PENN-CENTRAL
TO THE NEW HAVEN WOULD NOT BE OFFSET BY PENN-CENTRAL'S OBLIGATION TO
ABSORB A PORTION OF THE NEW HAVEN OPERATING LOSSES, THE BONDHOLDERS'
EQUITY WOULD BE DILUTED.    THE COMMISSION IS COMMANDED BY SEC. 5(2)(D)
OF THE ACT TO AUTHORIZE INCLUSION OF A ROAD ONLY ON "EQUITABLE TERMS." 
(FN10) ARE THE OPERATION LOSS PROVISIONS, AS THEY NOW STAND, "EQUITABLE
TERMS"?   THE PROVISIONS MAY WELL CONSTITUTE A PRELUDE TO THE SLOW
BLEEDING OR SQUEEZING OUT OF CREDITOR INTERESTS, AS THEIR EQUITY IS
DIMINISHED BY LOANS. 

HIGH FINANCE HAS A GREAT INVENTIVE GENIUS; AND ONE DOES NOT HAVE TO
BE SOPHISTICATED TO SEE HOW PENN-CENTRAL WITH THE USE OF THIS LOAN
DEVICE CAN PICK UP NEW HAVEN FOR A SONG. 

THE COMMISSION HAS ITSELF STATED THAT THE PENN-CENTRAL MERGER WOULD
NOT BE IN THE PUBLIC INTEREST WITHOUT THE COMPLETE INCLUSION OF THE NEW
HAVEN.  (FN11)  CLEARLY WE SHOULD NOT APPROVE THIS MERGER AND DECIDE
THAT THE MANDATE OF SEC. 5(2)(B) HAS BEEN FULFILLED WITHOUT AT THE SAME
TIME CONCLUDING THAT THE LOAN AGREEMENT AND THE SHARING OF THE NEW
HAVEN DEFICIT ARE "EQUITABLE." 

ON ITS FACE THE REQUIREMENT THAT PENN-CENTRAL SHARE THE OPERATING
LOSSES OF THE NEW HAVEN ON A DECREASING SCALE EACH YEAR - FROM 100% TO
50% TO 25% - SEEMS INEQUITABLE.  WHY A 100-50-25 FORMULA?  WHY NOT 100
10-1 OR 50-25-10 OR 25-50-100?  THE COMMISSION DOES NOT CLEARLY
INDICATE HOW IT ARRIVED AT ITS 100-50-25 FORMULA.  OF THE TWO FACTORS
MENTIONED BY IT IN MAKING ITS DETERMINATION (PREVENTING ENDLESS
LITIGATION BY NEW HAVEN CREDITORS, AND THE INABILITY TO REALIZE MANY
ECONOMIES DURING THE INTERIM PERIOD BEFORE THE SALE OF NEW HAVEN'S
ASSETS TO PENN-CENTRAL), ONLY THE FIRST WOULD APPEAR TO HAVE ANY
RELATION TO THE ADOPTION OF A SLIDING-SCALE FORMULA. 

ON ITS FACE THIS FORMULA FOR SHARING OF LOSSES SEEMS INHERENTLY
COERCIVE.  IT WOULD INDEED APPEAR THAT THE COMMISSION SOUGHT TO FORCE
THE CREDITORS TO ACCEDE TO ITS PROPOSAL WITHIN A YEAR.  THE PRESSURE
WOULD INDEED BE GREAT; FOR ONCE THE MERGER BETWEEN PENN AND CENTRAL IS
CONSUMMATED, THE NEW HAVEN CREDITORS WOULD HAVE TO ABSORB THE LOSSES OF
THE NEW HAVEN AT AN INCREASING RATE IF THEY DID NOT ACCEPT THE
COMMISSION'S PROPOSAL. 

IF THAT IS THE PURPOSE AND EFFECT OF THIS PROVISION CONCERNING PENN
CENTRAL'S SHARING OF THE OPERATING LOSSES OF THE NEW HAVEN, THE ISSUE
MAY WELL HAVE SPENT ITSELF, UNLESS WE GRANT JUDICIAL REVIEW PRIOR TO
THE CONSUMMATION OF THE MERGER.  OF COURSE, IF THE MERGER IS APPROVED,
ONE WAY IN WHICH THE COERCIVE EFFECT OF THIS PROVISION OF THE PLAN
COULD BE ELIMINATED WOULD BE TO UNDO THE MERGER.  BUT THAT GETS BACK TO
THE PROBLEM OF UNSCRAMBLING MERGERS OF THIS KIND AND INTRICACY, ONCE
THEY ARE CONSUMMATED - THE DIFFICULTY EMPHASIZED BY MR. JUSTICE CLARK
WHEN THE CASE WAS HERE BEFORE.   386 U.S. 372, 392. 

THE COURT, WHILE NOT PRESUMING TO APPROVE THE NOVEMBER 16, 1967,
ORDER OF THE COMMISSION AS PRESCRIBING "EQUITABLE TERMS" FOR INCLUSION,
TAKES THE POSITION THAT THE COMMISSION HAS DONE ALL THAT IS REQUIRED AT
THIS POINT WITH RESPECT TO THE INCLUSION OF THE NEW HAVEN.  BUT I AM
UNABLE TO RECONCILE THIS POSITION WITH THE REQUIREMENTS OF THE STATUTE,
WHICH DIRECTS IN SEC. 5(2)(D) THAT A ROAD MAY BE INCLUDED IN ANOTHER
ONLY UPON "EQUITABLE TERMS." 

THE COERCIVE NATURE OF THE OPERATING LOSS PROVISION MAY WELL
FRUSTRATE EFFECTIVE JUDICIAL REVIEW ONCE THE PENN-CENTRAL MERGER IS A
FACT. 

ON THE OTHER HAND, IF THE CREDITOR INTERESTS DO CHALLENGE THE
COMMISSION'S ORDER IN THE COURTS, AND ARE SUCCESSFUL, INCLUSION IN THE
PENN-CENTRAL SYSTEM ON "EQUITABLE TERMS" AT THE TIME OF THAT DECISION
MIGHT WELL BE IMPOSSIBLE.  THE COMMISSION ITSELF SEEMED TO RECOGNIZE
THE POSSIBILITY THAT THE NEW HAVEN MIGHT NOT BE INCLUDED IN THE PENN
CENTRAL SYSTEM IN ITS NOVEMBER 16 REPORT,  (FN12) ALTHOUGH IT EVIDENTLY
BELIEVED THAT THE POSSIBILITY OF NON-INCLUSION DID NOT JUSTIFY DELAYING
CONSUMMATION OF THE PENN-CENTRAL MERGER.  SUCH AN APPROACH IS NOT
PERMISSIBLE UNDER THE STATUTORY SCHEME, WHEN THE COMMISSION HAS STATED
THAT THE PENN-CENTRAL MERGER WOULD NOT BE IN THE PUBLIC INTEREST UNLESS
THE NEW HAVEN WERE INCLUDED IN THAT MERGED SYSTEM.  AND, AS THE
BONDHOLDERS HAVE NOTED, THERE EXISTS A SUBSTANTIAL DOUBT WHETHER THE
INCLUSION OF THE NEW HAVEN ON EQUITABLE TERMS AS REQUIRED BY SEC.
5(2)(D) HAS BEEN PROVIDED. 

IS SUCH A COERCIVE PROVISION AN "EQUITABLE" TERM WITHIN THE MEANING
OF SEC. 5(2)(D)?  IS "EQUITABLE" TO BE TAKEN TO MEAN WHAT IS A "FAIR"
DISTRIBUTION OF LOSSES, RISKS, AND BURDENS BETWEEN THE OLD CREDITOR
INTERESTS AND THE ACQUIRING COMPANY?  THESE ARE OLD AND PERENNIAL
PROBLEMS IN THE REORGANIZATION AND MERGER FIELD.  THEY INVOLVE A
DELICATE WEIGHING OF LEGAL RIGHTS AND PRACTICAL REALITIES.  HOW WE CAN
APPROVE THE MERGER UNDER THE STATUTORY SYSTEM WITHOUT DETERMINING
WHETHER THE LOAN PROVISION AND THE PROVISION FOR SHARING OF LOSSES ARE
"EQUITABLE" REMAINS A MYSTERY. 

FN1  11 U.S.C. SEC 205.  SEE ALSO 49 U.S.C. SEC 20B. 

FN2  PENNSYLVANIA RAILROAD CO. - MERGER - NEW YORK CENTRAL RAILROAD
CO., FINANCE DOCKET NO. 21989, 331 I.C.C. 643, 653. 

FN3  ID., AT 653-654. 

FN4  ID., AT 112.  WITH RESPECT TO THE "WASTING ASSET" DOCTRINE IN
CHAPTER X PROCEEDINGS, SEE, E.G., IN RE THE SIRE PLAN, INC., 332 F.2D
497 (C.A.2D CIR. 1964); IN RE V. LOEWER'S GAMBRINUS BREWERY CO., INC.,
141 F.2D 747 (C.A.2D CIR. 1944). 

FN5  BY AN ORDER DATED DECEMBER 19, 1967, THE REORGANIZATION COURT
(D.C. CONN.) AUTHORIZED THE NEW HAVEN TRUSTEES TO ISSUE UP TO
$25,000,000 IN TRUSTEES' CERTIFICATES TO EVIDENCE ANY LOANS FROM PENN
CENTRAL OBTAINED PURSUANT TO THE COMMISSION'S NOVEMBER 16, 1967 ORDER. 
THE COURT ORDERED THAT EACH CERTIFICATE ISSUED WAS TO CONSTITUTE AN
EXPENSE OF ADMINISTRATION EQUAL IN PRIORITY TO OTHER EXPENSES OF
ADMINISTRATION; AND THAT THE PROCEEDS DERIVED BY THE TRUSTEES FROM THE
ISSUANCE OF THE CERTIFICATES COULD BE EXPENDED BY THEM FOR PURPOSES
DEEMED NECESSARY WITHIN THEIR DISCRETION (INCLUDING CURRENT MAINTENANCE
AND OPERATION EXPENSES), SUBJECT TO THE SUPERVISION OF THE COURT.  THE
COURT PROVIDED THAT THE TRUSTEES WOULD NOT BE REQUIRED TO SEEK ANY
FURTHER AUTHORIZATION TO MAKE BORROWINGS UNDER THE PENN-CENTRAL LOAN
AGREEMENT; BUT IT DIRECTED THEM TO NOTIFY THE COURT AND THE OTHER
PARTIES CONCERNED WHEN THEY INTENDED TO TAKE DOWN A LOAN, AND RESERVED
JURISDICTION TO MODIFY ITS ORDER WITH RESPECT TO ANY OF THESE FUTURE
BORROWINGS. 

FN6  331 I.C.C. 643, 704. 

FN7  SEE ID., AT 717-720. 

FN8  ID., AT 719. 

FN9  THE COMMISSION AUTHORIZED THE PENN-CENTRAL MERGER, SUBJECT TO
THE EXPRESS CONDITION (CONDITION NO. 8, IN APPENDIX A TO ITS REPORT AND
ORDER DATED APRIL 6, 1966, PENNSYLVANIA RAILROAD CO. - MERGER - NEW
YORK CENTRAL RAILROAD CO., 327 I.C.C. 475, AS MODIFIED IN 328 I.C.C.
304 AND 330 I.C.C. 328), THAT THE MERGED SYSTEM INCLUDE THE PROPERTIES
AND OPERATIONS OF THE NEW HAVEN.  THE COMMISSION FOUND THAT THE MERGER
WOULD EFFECTIVELY DESTROY THE ABILITY OF THE NEW HAVEN TO SURVIVE, AND
WOULD NOT BE IN THE PUBLIC INTEREST WITHOUT THE COMPLETE INCLUSION OF
THE NEW HAVEN. 

FN10  49 U.S.C. SEC. 5(2)(D).  SECTION 5(2)(B) AUTHORIZED ACQUISITION
OF ONE CARRIER BY ANOTHER ON TERMS WHICH ARE "JUST AND REASONABLE." 
SEE, E.G., SCHWABACHER V. UNITED STATES, 334 U.S. 182; CLEVELAND, C.,
C. & ST. L.R. CO. V. JACKSON, 22 F.2D 509 (C.A. 6TH CIR. 1927); STOTT
V. UNITED STATES, 166 F. SUPP. 851 (D.C.S.D.N.Y. 1958). 

FN11  PENNSYLVANIA RAILROAD CO. - MERGER - NEW YORK CENTRAL RAILROAD
CO., 327 I.C.C.  475, 524. 

FN12  IN ITS SUMMARY OF THE CONTINGENCIES UPON WHICH THE OBLIGATION
OF PENN-CENTRAL TO LOAN $25,000,000 TO THE NEW HAVEN WOULD BE
TERMINATED, THE COMMISSION INCLUDED:  "IF A REGULATORY AUTHORITY OR
COURT BY A FINAL AND EFFECTIVE ORDER GRANTS PERMISSION TO LIQUIDATE THE
NH OR TO DISPOSE OF IT TO SOMEONE OTHER THAN PENN-CENTRAL"; AND "IF IT
SHOULD BE DETERMINED THAT PENN-CENTRAL SHALL NOT ACQUIRE THE NH." 
..END :







MASSACHUSETTS V. PAINTEN 389 U.S. 560 


NO. 37.  ARGUED OCTOBER 18, 1967 - DECIDED JANUARY 15, 1968 - 368 F.2D
142, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 


RECORD IN THIS CASE INVOLVING STATE'S USE OF EVIDENCE TO CONVICT
RESPONDENT WHICH ALLEGEDLY HAD BEEN ILLEGALLY SEIZED HELD NOT
SUFFICIENTLY CLEAR AND SPECIFIC TO PERMIT DECISION OF THE
CONSTITUTIONAL ISSUES INVOLVED. 

MASSACHUSETTS V. PAINTEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

PER CURIAM. 

IN 1958 RESPONDENT WAS TRIED AND CONVICTED IN MIDDLESEX SUPERIOR
COURT, MASSACHUSETTS, FOR ARMED ROBBERY OF A BANK AND RELATED
OFFENSES.  HE APPEALED, AND IN 1961 HIS CONVICTION WAS AFFIRMED BY THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS, SUB NOM. COMMONWEALTH V.
BINKIEWICZ, 342 MASS. 740, 175 N.E.2D 473. 

RESPONDENT EVENTUALLY FILED A PETITION FOR A WRIT OF HABEAS CORPUS IN
THE FEDERAL DISTRICT COURT.  TESTIMONY WAS TAKEN BY THE DISTRICT COURT
ON DECEMBER 30, 1965.  IT RULED THAT RESPONDENT'S FOURTH AMENDMENT
RIGHTS HAD BEEN VIOLATED BY THE ENTRY INTO HIS APARTMENT, BY HIS
ARREST, AND BY THE SEARCH AND SEIZURE OF CERTAIN ARTICLES IN HIS
APARTMENT WHICH WERE INTRODUCED IN EVIDENCE AGAINST HIM.  ACCORDINGLY,
IT SET ASIDE HIS CONVICTION AND ORDERED HIS RELEASE.  (FN1)  MAPP V.
OHIO, 367 U.S. 643 (1961).  THE COURT OF APPEALS AFFIRMED.  (FN2)  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE CONSTITUTIONAL
ISSUES PRESENTED.  (FN3) 

AT THE TIME OF RESPONDENT'S TRIAL IN 1958, MASSACHUSETTS DID NOT HAVE
AN EXCLUSIONARY RULE FOR EVIDENCE OBTAINED BY AN ILLEGAL SEARCH OR
SEIZURE, COMMONWEALTH V. WILKINS, 243 MASS. 356, 138 N.E. 11 (1923);
COMMONWEALTH V. SPOFFORD, 343 MASS. 703, 706, 180 N.E.2D 673, 675
(1962), AND THE PARTIES DID NOT FOCUS UPON THE ISSUES NOW BEFORE US.
THE EVIDENTIARY HEARING IN 1965 TOOK PLACE ALMOST EIGHT YEARS AFTER THE
EVENTS. 

AFTER ORAL ARGUMENT AND STUDY OF THE RECORD, WE HAVE REACHED THE
CONCLUSION THAT THE RECORD IS NOT SUFFICIENTLY CLEAR AND SPECIFIC TO
PERMIT DECISION OF THE IMPORTANT CONSTITUTIONAL QUESTIONS INVOLVED IN
THIS CASE.  THE WRIT IS THEREFORE DISMISSED AS IMPROVIDENTLY GRANTED. 
CF. SMITH V. MISSISSIPPI, 373 U.S. 238 (1963).  DISMISSED. 

FN1  252 F. SUPP. 851 (D.C. MASS. 1966). 

FN2  368 F.2D 142 (C.A. 1ST CIR. 1966). 

FN3  386 U.S. 931 (1967). 

MR. JUSTICE FORTAS, CONCURRING. 

THE DISSENT WRITTEN BY MY BROTHER WHITE, WITH WHOM MY BROTHERS HARLAN
AND STEWART JOIN, IMPELS ME TO ADD THIS NOTE.  I AGREE WITH THE COURT'S
ACTION IN DISMISSING THE WRIT OF CERTIORARI FOR HAVING BEEN
IMPROVIDENTLY GRANTED BECAUSE THE RECORD IS NOT ADEQUATE FOR
DISPOSITION OF THE CASE IN TERMS OF ITS CONSTITUTIONAL PROBLEMS.  MR.
JUSTICE WHITE'S OPINION IS NOT IN DISAGREEMENT ON THIS POINT.  HE WOULD
REMAND THE CASE FOR A PURPOSE WHICH SEEMS TO ME TO BE UNREAL:  THAT IS,
TO HOLD AN INQUIRY, ALMOST 10 YEARS AFTER THE EVENT, AS TO "WHETHER
OFFICER RUFO COULD HAVE BELIEVED THAT THE BAG HAD BEEN ABANDONED AND
WHETHER THE BAG WAS SEARCHED BEFORE OR AFTER GUNS WERE OBSERVED."  THIS
INQUIRY - AT THIS LATE DATE - IS AS ELUSIVE AS AN ATTEMPT TO CAPTURE
LAST NIGHT'S MOONBEAM. 

AS SOME OF MY COLLEAGUES HAVE OFTEN SAID, WE DO NOT SIT AS A COURT OF
CRIMINAL APPEALS TO REVIEW JUDGMENTS OF STATE COURTS.  THE QUESTION IN
THE INSTANT CASE COMES HERE AS A RESULT OF FEDERAL HABEAS CORPUS
PROCEEDINGS.  WE SHOULD CONSIDER IT IF, AND ONLY IF, WE SHOULD AND CAN
DISPOSE OF IT ON ITS RECORD IN TERMS OF CONSTITUTIONAL PRINCIPLE.  THE
COURT'S DISPOSITION OF THIS CASE IS BASED UPON THE SOUND PREMISE THAT
WE SHOULD NOT USE OUR CERTIORARI JURISDICTION TO EXPRESS OUR VIEWS ON A
POINT IN A CASE WHICH WE CANNOT DISPOSE OF BECAUSE OF INADEQUACIES OF
THE RECORD WHICH CANNOT REALISTICALLY BE REMEDIED. 

I SHOULD NOT ORDINARILY FEEL IT NECESSARY TO FILE A COMMENT IN THIS
VEIN.  IN THE PRESENT SITUATION, I AM TROUBLED LEST MY BROTHER WHITE'S
DISSENT SHOULD GIVE THE IMPRESSION THAT ONLY HE AND MY BROTHERS HARLAN
AND STEWART BELIEVE THAT THE COURT BELOW ERRED IN RELYING ON ITS
INFERENCES AS TO THE UNDISCLOSED INTENT OF THE OFFICERS.  I AGREE WITH
THE COURT'S DISPOSITION OF THIS CASE, NOT BECAUSE I DISAGREE WITH THE
POSITION STATED IN THE DISSENT ON THIS ISSUE, BUT BECAUSE ORAL ARGUMENT
AND DETAILED CONSIDERATION OF THE CASE AFTER CERTIORARI WAS GRANTED
DISCLOSED THE INFIRMITY OF THE RECORD WHICH PRECLUDES THE ORDERLY
DISPOSITION OF THE CASE BY THIS COURT. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

THE COURT GRANTED CERTIORARI (FN1) BECAUSE THE RULE OF LAW APPLED BY
THE COURT OF APPEALS TO THE FACTS FOUND BY BOTH IT (FN2) AND THE
DISTRICT COURT (FN3) RAISED TROUBLING AND DIFFICULT QUESTIONS ABOUT THE
RESTRICTIONS IMPOSED BY THE FOURTH AMENDMENT ON EVIDENCE THAT MAY BE
ADMITTED AT A CRIMINAL TRIAL.  THE COURT NOW SAYS, QUITE RIGHTLY THAT
THE RECORD IN THIS CASE IS STALE AND THE FACTS UNCLEAR.  WE HAVE,
HOWEVER, A SET OF FACTS FOUND BY A UNITED STATES DISTRICT COURT AND
APPROVED BY A COURT OF APPEALS.  DETERMINING WHAT LEGAL CONSEQUENCES
SHOULD FOLLOW FROM THOSE FACTS IS DIFFICULT, BUT IS THE TASK NORMALLY
ENTRUSTED TO THIS COURT.  I WOULD ACCEPT THE FACTS FOUND BY TWO FEDERAL
COURTS AND DECIDE THE QUESTIONS OF LAW PRESENTED TO US. 

THE RELEVANT FACTS FOUND BELOW ARE AS FOLLOWS.  TWO POLICE OFFICERS,
HAVING A SUSPICION THAT RESPONDENT HAD COMMITTED FELONIES BUT NOT
HAVING PROBABLE CAUSE TO BELIEVE THAT HE HAD COMMITTED THEM, WENT TO
THE DOOR OF RESPONDENT'S APARTMENT.  THEIR MOTIVE, THE COURTS BELOW
FOUND, WAS TO ARREST AND SEARCH, WHETHER OR NOT THEIR INVESTIGATION
PROVIDED THE PROBABLE CAUSE THAT WOULD MAKE AN ARREST AND SEARCH
CONSTITUTIONAL.  THIS PLAN WAS NOT COMMUNICATED TO RESPONDENT, WHO WHEN
HE CAME TO THE DOOR WAS LED TO BELIEVE THE OFFICERS WISHED ONLY TO
SPEAK TO HIM.  TOLD NO MORE THAN THAT THE OFFICERS WISHED TO ASK
QUESTIONS, RESPONDENT ASKED THEM TO WAIT A MINUTE, CLOSED THE DOOR,
TOSSED A PAPER BAG ONTO A FIRE ESCAPE, RETURNED, AND LET THE OFFICERS
ENTER.  THE OFFICERS DID NOTHING TO RESPONDENT BUT ASK QUESTIONS; (FN4)
WHILE DOING THAT ANOTHER OFFICER, POSTED BELOW, WHO HAD SEEN THE BAG
DROP, WALKED THROUGH THE APARTMENT AND OUT ONTO THE FIRE ESCAPE, WHERE
HE FOUND GUNS AND BULLETS IN THE BAG.  THE OFFICERS ARRESTED
RESPONDENT, AND UNDERTOOK A COMPLETE SEARCH OF THE APARTMENT INCIDENT
TO THE ARREST. 

ON THESE FACTS THE DISTRICT COURT CONCLUDED THAT "SINCE THE OFFICERS
HAD NO PROBABLE CAUSE TO ARREST WHEN THEY ENTERED THE APARTMENT THEY
CANNOT RETROACTIVELY VALIDATE THE ENTRY OR ARREST BY RELIANCE ON WHAT
THEY DISCOVERED AS A RESULT OF THE ILLEGAL ENTRY."  252 F. SUPP., AT
857.  THE COURT OF APPEALS AGREED, SAYING THAT THE OFFICERS "SET OUT TO
ARREST AND SEARCH RESPONDENT IN THE HOPE THAT EVIDENCE WOULD DEVELOP,"
AND THAT "SINCE THEIR ACTIONS WERE IMPROPER, THE POLICE WERE NOT
ENTITLED TO THE FRUITS."  368 F.2D, AT 144.  THE QUESTION IS THUS
WHETHER THE FACT THAT THE OFFICERS WERE NOT TRUTHFUL IN TELLING
RESPONDENT THEIR INTENTIONS REQUIRED THAT THE EVIDENCE FOUND BY THE
POLICEMEN AFTER THEY ENTERED THE APARTMENT BE BARRED FROM ADMISSION AT
RESPONDENT'S TRIAL AS A "FRUIT" OF UNLAWFUL POLICE CONDUCT. 

THE POSITION OF THE COURTS BELOW MUST REST ON A VIEW THAT A
POLICEMAN'S INTENTION TO OFFEND THE CONSTITUTION IF HE CAN ACHIEVE HIS
GOAL IN NO OTHER WAY CONTAMINATES ALL OF HIS LATER BEHAVIOR.  IN THE
CASE BEFORE US THE SYLLOGISM MUST BE THAT ALTHOUGH THE POLICEMAN'S
WORDS REQUESTED ENTRY FOR THE PURPOSE OF ASKING RESPONDENT QUESTIONS,
AND THE POLICEMAN - ON BEING ALLOWED TO ENTER - DID NOTHING TO
RESPONDENT BUT ASK QUESTIONS, THE "FRUITS" OF THE POLICEMAN'S OTHERWISE
LAWFUL REQUEST TO ENTER AND QUESTION - THE BAG TOSSED OUT OF THE WINDOW
AND INTO A PLACE WHERE IT COULD BE SEEN FROM THE STREET - SHOULD NOT BE
USABLE BY THE STATE.  THIS IS BECAUSE THE POLICEMAN WAS WILLING, HAD
HIS LAWFUL CONDUCT NOT DEVELOPED PROBABLE CAUSE JUSTIFYING RESPONDENT'S
ARREST, TO SEARCH RESPONDENT'S APARTMENT UNLAWFULLY IN THE HOPE OF
FINDING EVIDENCE OF A CRIME. 

THAT SUCH A RULE MAKES NO SENSE IS APPARENT WHEN ONE SEES IT IN THE
CONTEXT OF AN ABSTRUSE APPLICATION OF THE EXCLUSIONARY RULE, IMPOSED ON
THE STATES AS THE ONLY AVAILABLE WAY TO ENCOURAGE COMPLIANCE BY STATE
POLICE OFFICERS WITH THE COMMANDS OF THE FOURTH AMENDMENT.  SEE MAPP V.
OHIO, 367 U.S. 643, 652-653 (1961).  BECAUSE WE WISH TO DETER POLICEMEN
FROM SEARCHING WITHOUT A WARRANT, WE WOULD BAR ADMISSION OF EVIDENCE
OFFICER MCNAMARA DISCOVERED BY RANSACKING RESPONDENT'S APARTMENT
WITHOUT A WARRANT OR A BASIS FOR WARRANTLESS SEARCH.  THE EXPANDED
EXCLUSIONARY RULE APPLED IN THE OPINIONS BELOW WOULD BE DEFENSIBLE ONLY
IF WE FELT IT IMPORTANT TO DETER POLICEMEN FROM ACTING LAWFULLY BUT
WITH THE PLAN - THE ATTITUDE OF MIND - OF GOING FURTHER AND ACTING
UNLAWFULLY IF THE LAWFUL CONDUCT PRODUCES INSUFFICIENT RESULTS.  WE
MIGHT WISH THAT POLICEMEN WOULD NOT ACT WITH IMPURE PLOTS IN MIND, BUT
I DO NOT BELIEVE THAT WISH A SUFFICIENT BASIS FOR EXCLUDING, IN THE
SUPPOSED SERVICE OF THE FOURTH AMENDMENT, PROBATIVE EVIDENCE OBTAINED
BY ACTIONS - IF NOT THOUGHTS - ENTIRELY IN ACCORD WITH THE FOURTH
AMENDMENT AND ALL OTHER CONSTITUTIONAL REQUIREMENTS.  IN ADDITION,
SENDING STATE AND FEDERAL COURTS ON AN EXPEDITION INTO THE MINDS OF
POLICE OFFICERS WOULD PRODUCE A GRAVE AND FRUITLESS MISALLOCATION OF
JUDICIAL RESOURCES.  I VOTED TO GRANT CERTIORARI IN THIS CASE IN THE
HOPE THE COURT WOULD STATE THAT THE COURT OF APPEALS ERRED IN ITS VIEW
THAT A POLICEMAN'S UNLAWFUL SUBJECTIVE INTENTIONS REQUIRE EXCLUSION OF
EVIDENCE OBTAINED BY LAWFUL CONDUCT, AND I WOULD NOT DISMISS WHILE THE
OPPORTUNITY OF SO STATING REMAINS. 

A SECOND GROUND THAT COULD SUPPORT A VIEW THAT THE OFFICER'S ENTRY
WAS UNLAWFUL IS THE POSITION THAT THE POLICEMEN'S UNTRUTHS - THEIR
FAILURE TO TELL RESPONDENT OF THEIR PLAN - "VITIATED" HIS CONSENT TO
THEIR ENTRY.  I MIGHT NOT AGREE WITH, BUT I COULD UNDERSTAND, A
POSITION THAT POLICE OFFICERS ACTING WITHOUT A WARRANT CAN OBTAIN
LAWFUL CONSENT TO ENTER A HOME AND ASK QUESTIONS ONLY BY EXPLAINING TO
THE OCCUPANTS THAT THEY HAVE A CONSTITUTIONAL RIGHT TO DENY ADMISSION,
EVEN TO OFFICERS OF THE LAW CONDUCTING AN AUTHORIZED AND NECESSARY
INVESTIGATION.  BUT I CANNOT UNDERSTAND A VIEW THAT CONSENT IS
PERMISSIBLE IF GIVEN IN RESPONSE TO A MERE REQUEST TO ENTER UTTERED BY
A POLICEMAN WISHING ONLY TO ASK QUESTIONS BUT NOT IF GIVEN TO A
POLICEMAN WHO SAYS HE WISHES TO QUESTION BUT IN FACT INTENDS TO DO
MORE.  IF THE POLICEMAN DOES MORE WE WILL BAR ADMISSION OF THE FRUITS
OF HIS ILLEGAL ACTION.  BUT IF HE DOES ONLY SO MUCH AS HE HAS TOLD THE
OCCUPANT HE WILL DO, AND SO LESS THAN HE WAS WILLING TO DO, THE
OCCUPANT'S CONSENT WAS TO THE CONDUCT WHICH OCCURRED; IN THAT CASE
THERE IS NO REASON TO EXCLUDE WHAT THE POLICEMAN LEARNS FROM DOING WHAT
THE OCCUPANT CONSENTED TO HIS DOING. 

THERE REMAINS A POSSIBILITY THAT RESPONDENT'S CONFINEMENT MAY OFFEND
THE CONSTITUTION.  WHEN THE OFFICERS ENTERED RESPONDENT'S APARTMENT,
THEY HAD PERMISSION TO ASK QUESTIONS BUT NO PERMISSION TO SEARCH.  HAD
THEY LOOKED IN CLOSETS OR DRAWERS, OR EVEN IN A CLOSED PAPER BAG LYING
IN VIEW, THEY WOULD HAVE BEEN ACTING IN VIOLATION OF THE FOURTH
AMENDMENT.  THE PAPER BAG CONTAINING THE GUNS WAS ON A FIRE ESCAPE
ATTACHED TO AN APARTMENT OTHER THAN RESPONDENT'S, BUT THAT ALONE DID
NOT GIVE THE OFFICERS PERMISSION TO SEIZE IT.  THE FOURTH AMENDMENT'S
PROTECTION EXTENDS TO "EFFECTS" AS WELL AS TO "PERSONS, HOUSES,
PAPERS."  OF COURSE "ABANDONED" PROPERTY MAY BE SEIZED, ABEL V. UNITED
STATES, 362 U.S. 217, 241 (1960), BUT NEITHER COURT BELOW INQUIRED
WHETHER OFFICER RUFO REASONABLY BELIEVED THIS BAG HAD BEEN ABANDONED OR
INSTEAD SHOULD REASONABLY HAVE THOUGHT RESPONDENT HAD SET IT ON THE
FIRE ESCAPE TEMPORARILY WITHOUT WISHING TO ABANDON IT, CF. RIOS V.
UNITED STATES, 364 U.S. 253, 262, N. 6 (1960).  IF THE BAG WAS NOT
ABANDONED, ANOTHER QUESTION OF FACT IS RELEVANT: WHETHER OFFICER RUFO
SAW THAT THE BAG CONTAINED GUNS BEFORE HE OPENED IT, OR OPENED THE BAG
AND THEN SAW THE GUNS.  SINCE NEITHER THE DISTRICT COURT NOR THE COURT
OF APPEALS REACHED THESE ISSUES, I WOULD VACATE THE JUDGMENT OF THE
COURT OF APPEALS AND REMAND THE CASE TO THE DISTRICT COURT TO DETERMINE
WHETHER OFFICER RUFO COULD HAVE BELIEVED THAT THE BAG HAD BEEN
ABANDONED AND WHETHER THE BAG WAS SEARCHED BEFORE OR AFTER GUNS WERE
OBSERVED.  (FN5) 

FN1  386 U.S. 931 (1967). 

FN2  368 F.2D 142 (C.A. 1ST CIR. 1966). 

FN3  252 F. SUPP. 851 (D.C. MASS. 1966). 

FN4  ONE OFFICER "STUCK HIS HAND INTO" THE POCKET OF RESPONDENT'S
COMPANION, ONE ASH, AND "FOUND ABOUT $200.00 IN TEN AND TWENTY DOLLAR
BILLS STUFFED IN THE POCKET."  252 F. SUPP., AT 856.  THE BILLS WERE
APPARENTLY NOT INTRODUCED AT RESPONDENT'S TRIAL, BUT THE OFFICERS'
CONDUCT IN SEARCHING ASH WITHOUT JUSTIFICATION MAY WELL HAVE INFLUENCED
THE COURTS BELOW ON THE QUESTION OF THE OFFICERS' INTENTIONS. 

FN5  MR. JUSTICE FORTAS, ALTHOUGH HE DOES NOT DISAGREE WITH THE VIEW
THAT THE COURT OF APPEALS ERRED IN ISSUING THE WRIT OF HABEAS CORPUS
FOR THE REASONS WHICH IT GAVE, WOULD NEVERTHELESS DISMISS THE WRIT OF
CERTIORARI BECAUSE THE RECORD IS STALE AND INADEQUATE WITH RESPECT TO
THE ISSUE OF ABANDOMENT.  BUT IF IT WAS ERROR TO ISSUE THE WRIT OF
HABEAS CORPUS ON THE GROUNDS RELIED ON BY THE COURT OF APPEALS - AND
THERE IS NO INFIRMITY IN THE RECORD WITH RESPECT TO THIS QUESTION -
THEN THE JUDGMENT SHOULD BE REVERSED UNLESS THERE IS SOME OTHER BASIS
FOR THE ISSUANCE OF HABEAS CORPUS AT THE BEHEST OF THIS STATE
PRISONER.  IF THE RECORD IS UNCLEAR WITH RESPECT TO THIS POSSIBLE
ADDITIONAL GROUND - HERE THE SEARCH OF THE BAG AND THE SEIZURE OF THE
GUNS - AND IT IS THOUGHT UNDERSIRABLE TO HAVE THE RECORD REOPENED AND
THE QUESTION CLARIFIED, THE CASE SHOULD SIMPLY BE REVERSED, NOT
DISMISSED SO THAT THE ERRONEOUS JUDGMENT REMAINS IN EFFECT.  HABEAS
CORPUS SHOULD NOT ISSUE AND PAINTEN SHOULD NOT BE RELEASED UNLESS THE
RECORD CLEARLY JUSTIFIES SUCH A JUDGMENT. 
..END :
























CHANDLER V. U.S. 389 U.S. 568 


NO. 480.  DECIDED JANUARY 15, 1968 - CERTIORARI GRANTED; VACATED AND
REMANDED. 


CHANDLER, U.S. DISTRICT JUDGE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

UPON THE RESPONDENT'S SUGGESTION OF MOOTNESS AND OUR INDEPENDENT
EXAMINATION OF THE PAPERS, THE PETITION FOR A WRIT OF CERTIORARI IS
GRANTED AND THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT IS VACATED.  THE CASE IS REMANDED TO THE COURT WITH
INSTRUCTIONS TO DISMISS THE MANDAMUS PROCEEDINGS AS MOOT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










BOYDEN V. CALIFORNIA 389 U.S. 568 


NO. 730, MISC.  DECIDED JANUARY 15, 1968 - 251 CAL. APP. 2D 798, 60 CAL.
RPTR.  271, APPEAL DISMISSED AND CERTIORARI DENIED. 


BOYDEN V. CALIFORNIA. 

APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE
DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















BRASWELL V. UNITED STATES 389 U.S. 569 


NO. 790.  DECIDED JANUARY 15, 1968 - 275 F. SUPP. 98, AFFIRMED. 


BRASWELL MOTOR FREIGHT LINES, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SEASIDE V. FLORIDA ROAD DEPT. 389 U.S. 569 


NO. 754.  DECIDED JANUARY 15, 1968 - 190 SO. 2D 391, APPEAL DISMISSED. 


SEASIDE PROPERTIES, INC. V. STATE ROAD DEPARTMENT OF FLORIDA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















RANDOLPH V. UNITED STATES 389 U.S. 570 


NO. 879.  DECIDED JANUARY 15, 1968 - 274 F. SUPP. 200, AFFIRMED. 


RANDOLPH V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















DINIS V. VOLPE 389 U.S. 570 


NO. 882.  DECIDED JANUARY 15, 1968 - 264 F. SUPP. 425, AFFIRMED. 


DINIS ET AL. V. VOLPE, GOVERNOR OF MASSACHUSETTS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















LOUISIANA FINANCIAL ASSISTANCE COMMISSION V. POINDEXTER 389 U.S. 571 


NO. 793.  DECIDED JANUARY 15, 1968 - 275 F. SUPP. 833, AFFIRMED. 


LOUISIANA FINANCIAL ASSISTANCE COMMISSION ET AL. V. POINDEXTER ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















BUCK V. NEW JERSEY 389 U.S. 571 


NO. 817.  DECIDED JANUARY 15, 1968 - 49 N.J. 359, 230 A.2D 393, APPEAL
DISMISSED. 


BUCK ET UX. V. NEW JERSEY BY THE STATE HIGHWAY COMMISSIONER. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















JAMES V. GILMORE 389 U.S. 572 


NO. 850.  DECIDED JANUARY 15, 1968 - 274 F. SUPP. 75, AFFIRMED. 


JAMES, STATE TREASURER OF TEXAS, ET AL. V. GILMORE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SCHOOL COMMITTEE V. BOARD OF EDUCATION 389 U.S. 572 


NO. 759.  DECIDED JANUARY 15, 1968 - 352 MASS. 693, 227 N.E.2D 729,
APPEAL DISMISSED. 


SCHOOL COMMITTEE OF CITY OF BOSTON V. BOARD OF EDUCATION ET AL. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















I.M. AMUSEMENT CORP. V. OHIO 389 U.S. 573 


NO. 260.  DECIDED JANUARY 15, 1968 - REVERSED. 


I.M. AMUSEMENT CORP. V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE JUDGMENT OF THE SUPREME COURT OF OHIO IS REVERSED.  REDRUP V. NEW
YORK, 386 U.S. 767. 

THE CHIEF JUSTICE CONCURS ON THE GROUND THAT EVIDENCE OF CONTEMPORARY
COMMUNITY STANDARDS WAS EXCLUDED AT TRIAL. 

MR. JUSTICE HARLAN WOULD AFFIRM FOR THE REASONS SET FORTH IN HIS
SEPARATE OPINION IN ROTH V. UNITED STATES, 354 U.S. 476, 496, 500-503,
AND IN HIS DISSENTING OPINION IN MEMOIRS V. MASSACHUSETTS, 383 U.S.
413, 455. 
..END :










BAXTER V. PHILADELPHIA 389 U.S. 573 


NO. 858.  DECIDED JANUARY 15, 1968 - 426 PA. 240, 231 A.2D 151, APPEAL
DISMISSED. 


BAXTER ET AL. V. CITY OF PHILADELPHIA ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















STRICKLAND CO. V. UNITED STATES 389 U.S. 574 


NO. 839.  DECIDED JANUARY 15, 1968 - 274 F. SUPP. 921, AFFIRMED. 


STRICKLAND TRANSPORTATION CO., INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















KIRK V. GONG 389 U.S. 574 


NO. 872.  DECIDED JANUARY 15, 1968 - 278 F. SUPP. 133, AFFIRMED. 


KIRK, GOVERNOR OF FLORIDA, ET AL. V. GONG ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















UNITED STATES V. BETHLEHEM STEEL 389 U.S. 575 


NO. 130.  DECIDED JANUARY 15, 1968 - CERTIORARI GRANTED; 374 F.2D 656,
JUDGMENTS VACATED AND REMANDED. 


UNITED STATES V. BETHLEHEM STEEL CO. ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENTS OF
THE COURT OF APPEALS FOR THE FOURTH CIRCUIT ARE VACATED AND THE CAUSE
IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN LIGHT OF THIS
COURT'S DECISION IN WYANDOTTE TRANSPORTATION CO. V. UNITED STATES,
ANTE, P. 191. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










TRAFFIC CONFERENCE V. RINGSBY 389 U.S. 576 


NO. 163.  DECIDED JANUARY 15, 1968 - 263 F. SUPP. 552, APPEAL
DISMISSED. 


NATIONAL SMALL SHIPMENTS TRAFFIC CONFERENCE, INC., ET AL. V. RINGSBY
TRUCK LINES, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED AS
MOOT. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










GARMENT WORKERS' V. SCHERER 389 U.S. 577 


NO. 400.*  DECIDED JANUARY 15, 1968 - CERTIORARI GRANTED AND JUDGMENT
REVERSED. 

*REPORTER'S NOTE:  FOR PER CURIAM OPINION VACATING ORDER AND JUDGMENT
IN THIS CASE, SEE 390 U.S. 717. 


INTERNATIONAL LADIES' GARMENT WORKERS' UNION, LOCAL 415, ET AL. V.
SCHERER & SONS, INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
IS GRANTED.  THE JUDGMENT BELOW IS REVERSED.  RETAIL CLERKS
INTERNATIONAL ASSN. V. SCHERMERHORN, 375 U.S. 96 (1963); LOCAL NO. 438
V. CURRY.  371 U.S. 542 (1963). 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN WOULD SET THIS CASE FOR ORAL
ARGUMENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





ROBERT-ARTHUR V. CANALE 389 U.S. 578 


NO. 679.  DECIDED JANUARY 15, 1968 - TENN. - , 414 S.W.2D 638,
REVERSED. 


ROBERT-ARTHUR MANAGEMENT CORP. V. TENNESSEE EX REL. CONALE, DISTRICT
ATTORNEY GENERAL 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

PER CURIAM. 

THE JUDGMENT OF THE SUPREME COURT OF TENNESSEE IS REVERSED.  REDRUP
V. NEW YORK, 386 U.S. 767. 

THE CHIEF JUSTICE WOULD AFFIRM. 

MR. JUSTICE HARLAN WOULD AFFIRM FOR THE REASONS SET FORTH IN HIS
SEPARATE OPINION IN ROTH V. UNITED STATES, 354 U.S. 476, 496, 500-503,
AND IN HIS DISSENTING OPINION IN MEMOIRS V. MASSACHUSETTS, 383 U.S.
413, 455. 
..END :









OSBOURNE V. BARGE LINE CO. 389 U.S. 579 


NO. 768.  DECIDED JANUARY 15, 1968 - 273 F. SUPP. 1, AFFIRMED. 


OSBOURNE ET AL. V. MISSISSIPPI VALLEY BARGE LINE CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND JUDGMENT IS AFFIRMED WITHOUT
PREJUDICE TO THE PRESENTATION OF AN APPROPRIATE MOTION IN THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI FOR A
MODIFICATION OF THE INJUNCTION. 
..END :















SCRIP CO. V. UNITED STATES 389 U.S. 580 


NO. 820.  DECIDED JANUARY 15, 1968* - 272 F. SUPP. 432, AFFIRMED. 

*TOGETHER WITH NO. 849, TWYMAN, DBA BILL'S UNION STATION, ET AL. V.
UNITED STATES ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


THRIFTY SHOPPERS SCRIP CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT
OF CALIFORNIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :















GOLDSTEIN V. COX 389 U.S. 581 


NO. 825.  DECIDED JANUARY 15, 1968 - CERTIORARI GRANTED; VACATED AND
REMANDED. 


GOLDSTEIN, AKA PIETRARU, ET AL. V. COX ET AL., SURROGATES OF THE COUNTY
OF NEW YORK, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
VACATED.  THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF ZSCHERNIG
V. MILLER, ANTE, P. 429. 
..END :













MILLER V. HAINES 389 U.S. 582 


NO. 840.  DECIDED JANUARY 15, 1968 - APPEAL DISMISSED. 


MILLER V. HAINES, DIRECTOR, DEPARTMENT OF MENTAL HYGIENE AND CORRECTION
OF OHIO, ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














PUBLIC UTILITIES COMMISSION V. BALTIMORE SHIPPERS 389 U.S. 583 


NO. 846.  DECIDED JANUARY 15, 1968 - 268 F. SUPP. 836, AFFIRMED. 


PUBLIC UTILITIES COMMISSION OF CALIFORNIA ET AL. V. BALTIMORE SHIPPERS &
RECEIVERS ASSOCIATION, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















INTERNATIONAL LADIES' GARMENT WORKERS' UNION V. SCHERER & SONS, INC.,
390 U.S. 717 



       INTERNATIONAL LADIES' GARMENT WORKERS' UNION, LOCAL 415, ET

           AL. V. SCHERER & SONS, INC.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

           FLORIDA. 

        NO. 400.  ORDER AND JUDGMENT OF JANUARY 15, 1968, 389 U.S.

           577, VACATED.  DECIDED APRIL 22, 1968. 


CERTIORARI GRANTED TO DISTRICT COURT OF APPEAL OF FLORIDA, THIRD
DISTRICT; 188 SO.2D 380, REVERSED. 

PER CURIAM. 

THE MANDATE OF THIS COURT IN THIS CASE ISSUED ON THE 9TH DAY OF
FEBRUARY 1968, IS HEREBY RECALLED AND THE JUDGMENT HERETOFORE ENTERED
ON THE 15TH DAY OF JANUARY 1968, IS HEREBY VACATED.  THE ORDER OF THE
COURT DATED THE 15TH DAY OF JANUARY 1968, GRANTING THE WRIT OF
CERTIORARI TO THE SUPREME COURT OF FLORIDA, IS VACATED. 

TREATING THE PAPERS SUBMITTED AS A PETITION FOR A WRIT OF CERTIORARI
TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, THE
PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  RETAIL CLERKS INTERNATIONAL ASSN. V. SCHERMERHORN, 375 U.S.
96 (1963); LOCAL NO. 438 V. CURRY, 371 U.S. 542 (1963). 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN WOULD SET THIS CASE FOR
ORAL ARGUMENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MORRIS P. GLUSHIEN FOR PETITIONERS. 

JOSEPH A. PERKINS FOR RESPONDENT. 
..END :








TCHEREPNIN V. KNIGHT 389 U.S. 332 


NO. 104.  ARGUED NOVEMBER 13, 1967.  - DECIDED DECEMBER 18, 1967.  - 371
F.2D 374, REVERSED. 


WITHDRAWABLE CAPITAL SHARE IN STATE-CHARTERED SAVINGS AND LOAN
ASSOCIATION HELD TO BE A "SECURITY" WITHIN THE MEANING OF THE
SECURITIES EXCHANGE ACT OF 1934.  PP. 335-346. 

TCHEREPNIN ET AL. V. KNIGHT ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE WARREN, ANNOUNCED BY MR.
JUSTICE BRENNAN. 

THE NARROW QUESTION FOR DECISION IN THIS CASE IS WHETHER A
WITHDRAWABLE CAPITAL SHARE IN AN ILLINOIS SAVINGS AND LOAN ASSOCIATION
IS A "SECURITY" WITHIN THE MEANING OF THE SECURITIES EXCHANGE ACT OF
1934, 48 STAT. 881, 15 U.S.C. SEC 78A ET SEQ. 

THE PETITIONERS ARE A NUMBER OF INDIVIDUALS HOLDING WITHDRAWABLE
CAPITAL SHARES IN CITY SAVINGS ASSOCIATION OF CHICAGO, A CORPORATION
DOING BUSINESS UNDER THE ILLINOIS SAVINGS AND LOAN ACT.  (FN1)  ON JULY
24, 1964, THEY FILED A CLASS ACTION (FN2) IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, ALLEGING THAT THE SALES OF
THE SHARES TO THEM BY CITY SAVINGS WERE VOID UNDER SEC. 29(B) OF THE
SECURITIES EXCHANGE ACT OF 1934, 15 U.S.C. SEC. 78CCB), AND ASKING THAT
THE SALES BE RESCINDED.  NAMED AS DEFENDANTS IN THE COMPLAINT WERE CITY
SAVINGS, ITS OFFICERS AND DIRECTORS, TWO STATE OFFICIALS WHO HAD TAKEN
CUSTODY OF THE ASSOCIATION, (FN3) AND THREE INDIVIDUALS NAMED AS
LIQUIDATORS BY THE ASSOCIATION'S SHAREHOLDERS IN VOTING A VOLUNTARY
PLAN OF LIQUIDATION.  (FN4)  THE COMPLAINT ALLEGED THAT THE
WITHDRAWABLE CAPITAL SHARES PURCHASED BY THE PETITIONERS WERE
SECURITIES WITHIN THE MEANING OF SEC. 3(A)(10) OF THE SECURITIES
EXCHANGE ACT.  (FN5)  THAT THE PETITIONERS HAD PURCHASED SUCH
SECURITIES IN RELIANCE UPON PRINTED SOLICITATIONS RECEIVED FROM CITY
SAVINGS THROUGH THE MAILS, AND THAT SUCH SOLICITATIONS CONTAINED FALSE
AND MISLEADING STATEMENTS IN VIOLATION OF SEC. 10(B) OF THE SECURITIES
EXCHANGE ACT (FN6) AND OF RULE 10B-5 ADOPTED THEREUNDER BY THE
SECURITIES AND EXCHANGE COMMISSION.  (FN7)  MORE SPECIFICALLY, THE
COMPLAINT ALLEGED THAT THE MAILED SOLICITATIONS PORTRAYED CITY SAVINGS
AS A FINANCIALLY STRONG INSTITUTION AND ITS SHARES AS DESIRABLE
INVESTMENTS.  BUT THE SOLICITATIONS FAILED TO DISCLOSE, INTER ALIA,
THAT THE ASSOCIATION WAS CONTROLLED BY AN INDIVIDUAL WHO HAD BEEN
CONVICTED OF MAIL FRAUD INVOLVING SAVINGS AND LOAN ASSOCIATIONS, THAT
THE ASSOCIATION HAD BEEN DENIED FEDERAL INSURANCE OF ITS ACCOUNTS
BECAUSE OF ITS UNSAFE FINANCIAL POLICIES, AND THAT THE ASSOCIATION HAD
BEEN FORCED TO RESTRICT WITHDRAWALS BY HOLDERS OF PREVIOUSLY PURCHASED
SHARES. 

THE RESPONDENTS FILED MOTIONS TO DISMISS ON THE GROUND THAT THE
COMPLAINT FAILED TO STATE A CAUSE OF ACTION UNDER SEC. 10(B) BECAUSE
THE PETITIONERS' WITHDRAWABLE CAPITAL SHARES WERE NOT SECURITIES WITHIN
THE MEANING OF THE SECURITIES EXCHANGE ACT.  THE DISTRICT COURT DENIED
THE MOTIONS TO DISMISS, RULING THAT THE PETITIONERS' SHARES FELL WITHIN
THE ACT'S DEFINITION OF SECURITIES.  HOWEVER, RECOGNIZING THAT THE
RULING "INVOLVES A CONTROLLING QUESTION OF LAW AS TO WHICH THERE IS
SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION," THE DISTRICT COURT
CERTIFIED ITS ORDER FOR AN INTERLOCUTORY APPEAL TO THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT UNDER 28 U.S.C. SEC. 1292(B).  THE COURT OF
APPEALS, WITH ONE JUDGE DISSENTING, AGREED WITH RESPONDENTS THAT THE
WITHDRAWABLE CAPITAL SHARES ISSUED BY CITY SAVINGS DID NOT FIT THE
DEFINITION OF SECURITIES IN SEC. 3(A)(10) OF THE SECURITIES EXCHANGE
ACT.  CONSEQUENTLY, IT RULED THAT THE DISTRICT COURT WAS WITHOUT
JURISDICTION IN THE CASE, AND IT REMANDED WITH INSTRUCTIONS TO DISMISS
THE COMPLAINT.  371 F.2D 374.   BECAUSE THIS CASE PRESENTS AN IMPORTANT
QUESTION CONCERNING THE SCOPE OF THE SECURITIES EXCHANGE ACT, WE
GRANTED CERTIORARI.  387 U.S. 941.  WE DISAGREE WITH THE CONSTRUCTION
PLACED ON SEC. 3(A)(10) BY THE COURT OF APPEALS, AND WE REVERSE ITS
JUDGMENT. 


"3.  (A) WHEN USED IN THIS TITLE, UNLESS THE CONTEXT OTHERWISE
REQUIRES:

    *         *         *         *         * 

"(10) THE TERM 'SECURITY' MEANS ANY NOTE, STOCK, TREASURY STOCK,
BOND, DEBENTURE, CERTIFICATE OF INTEREST OR PARTICIPATION IN ANY PROFIT
SHARING AGREEMENT OR IN ANY OIL, GAS, OR OTHER MINERAL ROYALTY OR
LEASE, ANY COLLATERAL-TRUST CERTIFICATE, PREORGANIZATION CERTIFICATE OR
SUBSCRIPTION, TRANSFERABLE SHARE, INVESTMENT CONTRACT, VOTING-TRUST
CERTIFICATE, CERTIFICATE OF DEPOSIT, FOR A SECURITY, OR IN GENERAL, ANY
INSTRUMENT COMMONLY KNOWN AS A 'SECURITY'; OR ANY CERTIFICATE OF
INTEREST OR PARTICIPATION IN, TEMPORARY OR INTERIM CERTIFICATE FOR,
RECEIPT FOR, OR WARRANT OR RIGHT TO SUBSCRIBE TO OR PURCHASE, ANY OF
THE FOREGOING; BUT SHALL NOT INCLUDE CURRENCY OR ANY NOTE, DRAFT, BILL
OF EXCHANGE, OR BANKER'S ACCEPTANCE WHICH HAS A MATURITY AT THE TIME OF
ISSUANCE OF NOT EXCEEDING NINE MONTHS, EXCLUSIVE OF DAYS OF GRACE, OR
ANY RENEWAL THEREOF THE MATURITY OF WHICH IS LIKEWISE LIMITED." 

THIS CASE PRESENTS THE COURT WITH ITS FIRST OPPORTUNITY TO CONSTRUE
THIS STATUTORY PROVISION.  BUT WE DO NOT START WITH A BLANK SLATE.  THE
SECURITIES ACT OF 1933 (48 STAT.  74, AS AMENDED) CONTAINS A DEFINITION
OF SECURITY (FN8) VIRTUALLY IDENTICAL TO THAT CONTAINED IN THE 1934
ACT.  CONSEQUENTLY, WE ARE AIDED IN OUR TASK BY OUR PRIOR DECISIONS
WHICH HAVE CONSIDERED THE MEANING OF SECURITY UNDER THE 1933 ACT. 
(FN9)  IN ADDITION, WE ARE GUIDED BY THE FAMILIAR CANON OF STATUTORY
CONSTRUCTION THAT REMEDIAL LEGISLATION SHOULD BE CONSTRUED BROADLY TO
EFFECTUATE ITS PURPOSES.  THE SECURITIES EXCHANGE ACT QUITE CLEARLY
FALLS INTO THE CATEGORY OF REMEDIAL LEGISLATION.  (FN10)  ONE OF ITS
CENTRAL PURPOSES IS TO PROTECT INVESTORS THROUGH THE REQUIREMENT OF
FULL DISCLOSURE BY ISSUERS OF SECURITIES, AND THE DEFINITION OF
SECURITY IN SEC. 3(A)(10) NECESSARILY DETERMINES THE CLASSES OF
INVESTMENTS AND INVESTORS WHICH WILL RECEIVE THE ACT'S PROTECTIONS. 
FINALLY, WE ARE REMINDED THAT, IN SEARCHING FOR THE MEANING AND SCOPE
OF THE WORD "SECURITY" IN THE ACT, FORM SHOULD BE DISREGARDED FOR
SUBSTANCE AND THE EMPHASIS SHOULD BE ON ECONOMIC REALITY.  S.E.C. V.
W.J. HOWEY CO., 328 U.S. 293, 298 (1946). 

BECAUSE CITY SAVINGS' AUTHORITY TO ISSUE WITHDRAWABLE CAPITAL SHARES
IS CONFERRED BY THE ILLINOIS SAVINGS AND LOAN ACT, WE LOOK FIRST TO THE
LEGAL CHARACTER IMPARTED TO THOSE SHARES BY THAT STATUTE.   THE
ISSUANCE OF WITHDRAWABLE CAPITAL SHARES IS ONE OF TWO METHODS BY WHICH
ILLINOIS SAVINGS AND LOAN ASSOCIATIONS ARE AUTHORIZED TO RAISE
CAPITAL.  (FN11)  CITY SAVINGS' CAPITAL IS REPRESENTED EXCLUSIVELY BY
WITHDRAWABLE CAPITAL SHARES.  EACH HOLDER OF A WITHDRAWABLE CAPITAL
SHARE BECOMES A MEMBER OF THE ASSOCIATION (FN12) AND IS ENTITLED TO
"THE VOTE OF ONE SHARE FOR EACH ONE HUNDRED DOLLARS OF THE AGGREGATE
WITHDRAWAL VALUE OF SUCH ACCOUNTS, AND SHALL HAVE THE VOTE OF ONE SHARE
FOR ANY FRACTION OF ONE HUNDRED DOLLARS."  (FN13)  THE HOLDERS OF
WITHDRAWABLE CAPITAL SHARES ARE NOT ENTITLED TO A FIXED RATE OF
RETURN.  RATHER, THEY RECEIVE DIVIDENDS DECLARED BY AN ASSOCIATION'S
BOARD OF DIRECTORS AND BASED ON THE ASSOCIATION'S PROFITS.  (FN14)  THE
POWER OF A HOLDER OF A WITHDRAWABLE CAPITAL SHARE TO MAKE VOLUNTARY
WITHDRAWALS IS RESTRICTED BY STATUTE.  (FN15)  WHILE WITHDRAWABLE
CAPITAL SHARES ARE DECLARED NONNEGOTIABLE AND NOT SUBJECT TO ARTICLE 8
OF THE UNIFORM COMMERCIAL CODE.  (FN16)  SUCH SHARES CAN BE TRANSFERRED
"BY WRITTEN ASSIGNMENT ACCOMPANIED BY DELIVERY OF THE APPROPRIATE
CERTIFICATE OR ACCOUNT BOOK."  (FN17) 

WHILE ILLINOIS LAW GIVES LEGAL FORM TO THE WITHDRAWABLE CAPITAL
SHARES HELD BY THE PETITIONERS, FEDERAL LAW MUST GOVERN WHETHER SHARES
HAVING SUCH LEGAL FORM CONSTITUTE SECURITIES UNDER THE SECURITIES
EXCHANGE ACT.  (FN18)  EVEN A CASUAL READING OF SEC. 3(A)(10) OF THE
1934 ACT REVEALS THAT CONGRESS DID NOT INTEND TO ADOPT A NARROW OR
RESTRICTIVE CONCEPT OF SECURITY IN DEFINING THAT TERM.  (FN19)  AS THIS
COURT OBSERVED WITH RESPECT TO THE DEFINITION OF SECURITY IN SEC. 2(1)
OF THE SECURITIES ACT OF 1933, "THE REACH OF THE ACT DOES NOT STOP WITH
THE OBVIOUS AND COMMONPLACE."  S.E.C. V. C.M. JOINER CORP., 320 U.S.
344, 351 (1943).  AS USED IN BOTH THE 1933 AND 1934 ACTS, SECURITY
"EMBODIES A FLEXIBLE RATHER THAN A STATIC PRINCIPLE, ONE THAT IS
CAPABLE OF ADAPTATION TO MEET THE COUNTLESS AND VARIABLE SCHEMES
DEVISED BY THOSE WHO SEEK THE USE OF THE MONEY OF OTHERS ON THE PROMISE
OF PROFITS."  S.E.C. V. W.J. HOWEY CO., SUPRA, AT 299.  WE HAVE LITTLE
DIFFICULTY FITTING THE WITHDRAWABLE CAPITAL SHARES HELD BY THE
PETITIONERS INTO THAT EXPANSIVE CONCEPT OF SECURITY.  OF THE SEVERAL
TYPES OF INSTRUMENTS DESIGNATED AS SECURITIES BY SEC. 3(A)(10) OF THE
1934 ACT, THE PETITIONERS' SHARES MOST CLOSELY RESEMBLE INVESTMENT
CONTRACTS.  "THE TEST FOR AN INVESTMENT CONTRACT IS WHETHER THE SCHEME
INVOLVES AN INVESTMENT OF MONEY IN A COMMON ENTERPRISE WITH PROFITS TO
COME SOLELY FROM THE EFFORTS OF OTHERS."  ID., AT 301.  PETITIONERS ARE
PARTICIPANTS IN A COMMON ENTERPRISE - A MONEY-LENDING OPERATION
DEPENDENT FOR ITS SUCCESS UPON THE SKILL AND EFFORTS OF THE MANAGEMENT
OF CITY SAVINGS IN MAKING SOUND LOANS.  BECAUSE ILLINOIS LAW TIES THE
PAYMENT OF DIVIDENDS ON WITHDRAWABLE CAPITAL SHARES TO AN APPORTIONMENT
OF PROFITS.  (FN20)  THE PETITIONERS CAN EXPECT A RETURN ON THEIR
INVESTMENT ONLY IF CITY SAVINGS SHOWS A PROFIT.  IF CITY SAVINGS FAILS
TO SHOW A PROFIT DUE TO THE LACK OF SKILL OR HONESTY OF ITS MANAGERS,
THE PETITIONERS WILL RECEIVE NO DIVIDENDS.  SIMILARLY, THE AMOUNT OF
DIVIDENDS THE PETITIONERS CAN EXPECT IS TIED DIRECTLY TO THE AMOUNT OF
PROFITS CITY SAVINGS MAKES FROM YEAR TO YEAR.  CLEARLY, THEN, THE
PETITIONERS' WITHDRAWABLE CAPITAL SHARES HAVE THE ESSENTIAL ATTRIBUTES
OF INVESTMENT CONTRACTS AS THAT TERM IS USED IN SEC. 3(A)(10) AND AS IT
WAS DEFINED IN HOWEY.  (FN21)  BUT WE NEED NOT REST OUR DECISION ON
THAT CONCLUSION ALONE.  "INSTRUMENTS MAY BE INCLUDED WITHIN ANY OF THE
ACT'S DEFINITIONS, AS MATTER OF LAW, IF ON THEIR FACE THEY ANSWER TO
THE NAME OR DESCRIPTION."  S.E.C. V. C.M. JOINER CORP., SUPRA, AT 351. 
THE PETITIONERS' SHARES FIT WELL WITHIN SEVERAL OTHER DESCRIPTIVE TERMS
CONTAINED IN SEC. 3(A)(10).  FOR EXAMPLE, THE PETITIONERS' SHARES CAN
BE VIEWED AS "CERTIFICATES) OF INTEREST OR PARTICIPATION IN ANY PROFIT
SHARING AGREEMENT."  THE SHARES MUST BE EVIDENCED BY A CERTIFICATE,
(FN22) AND ILLINOIS LAW MAKES THE PAYMENT OF DIVIDENDS CONTINGENT UPON
AN APPORTIONMENT OF PROFITS.  THESE SAME FACTORS MAKE THE SHARES
"STOCK" UNDER SEC. 3(A)(10).  FINALLY, THE PETITIONERS' SHARES CAN BE
CONSIDERED "TRANSFERABLE SHARES)" SINCE "THE HOLDER OF A WITHDRAWABLE
CAPITAL ACCOUNT MAY TRANSFER HIS RIGHTS THEREIN ABSOLUTELY OR
CONDITIONALLY TO ANY OTHER PERSON ELIGIBLE TO HOLD THE SAME."  (FN23) 

OUR CONCLUSION THAT A WITHDRAWABLE CAPITAL SHARE IS A SECURITY WITHIN
THE MEANING OF SEC. 3(A)(10) IS REINFORCED BY THE LEGISLATIVE HISTORY
OF FEDERAL SECURITIES LEGISLATION.  WHEN CONGRESS WAS CONSIDERING THE
SECURITIES ACT OF 1933, REPRESENTATIVES OF THE UNITED STATES BUILDING
AND LOAN LEAGUE APPEARED BEFORE HOUSE AND SENATE COMMITTEES TO PLEAD
THE CAUSE OF THE LEAGUE'S MEMBERS.  THE LEAGUE'S SPOKESMEN ASKED
CONGRESS FOR AN EXEMPTION FROM THE ACT'S REGISTRATION REQUIREMENTS FOR
BUILDING AND LOAN ASSOCIATION SHARES.  THE SPOKESMEN ARGUED THAT THE
COST OF COMPLYING WITH THE REGISTRATION REQUIREMENTS WHENEVER A
BUILDING AND LOAN ASSOCIATION ISSUED A NEW SHARE WOULD BE PROHIBITIVE. 
HOWEVER, THE LEAGUE'S SPOKESMEN EMPHATICALLY ENDORSED THE COVERAGE OF
BUILDING AND LOAN ASSOCIATIONS UNDER THE ACT'S ANTIFRAUD PROVISIONS. 
(FN24)  THUS, MORTON BODFISH, THE LEAGUE'S EXECUTIVE MANAGER, TOLD THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE: 

"WHEN A PERSON SAVES HIS MONEY IN A BUILDING AND LOAN ASSOCIATION, HE
PURCHASES SHARES AND NEARLY ALL OF OUR $8,000,000,000 OF ASSETS ARE IN
THE FORM OF SHARES  ...  . 

"THE PRACTICAL DIFFICULTIES OF AN ASSOCIATION HAVING TO REGISTER
EVERY ISSUE OF SHARES  ...  ARE OBVIOUS.  (FN25) 

     *     *         *         *         * 

"WE APPROVE VIGOROUSLY AND ARE QUITE WILLING TO BE SUBJECT TO SECTION
13, WHICH IS THE FRAUD SECTION  ...  .  (FN26) 

     *         *         *         *         * 

"NOW, GENTLEMEN, WE WANT YOU TO LEAVE THE FRAUD SECTIONS THERE, JUST
AS THEY ARE, SO THAT IF ANY FRAUD DEVELOPED IN CONNECTION WITH THE
MANAGEMENT OF ANY OF OUR INSTITUTIONS ANYWHERE OR UNDER THE NAME OF
BUILDING AND LOAN, THIS LAW CAN BE EFFECTIVE AND OPERATIVE."  (FN27) 

CONGRESS RESPONDED TO THE APPEALS FROM THE BUILDING AND LOAN
INTERESTS BY INCLUDING IN SEC. 3(A)(5) OF THE 1933 ACT AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS FOR "ANY SECURITY ISSUED BY A
BUILDING AND LOAN ASSOCIATION, HOMESTEAD ASSOCIATION, SAVINGS AND LOAN
ASSOCIATION, OR SIMILAR INSTITUTION  ...  ."  (FN28)  IT SEEMS QUITE
APPARENT THAT THE BUILDING AND LOAN INTERESTS WOULD NOT HAVE SOUGHT AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS AND CONGRESS WOULD NOT
HAVE GRANTED IT UNLESS THERE WAS GENERAL AGREEMENT THAT THE ACT'S
DEFINITION OF SECURITY IN SEC. 2(1) BROUGHT BUILDING AND LOAN SHARES
WITHIN THE PURVIEW OF THE ACT.  (FN29) 

THE SAME CONGRESS WHICH PASSED THE SECURITIES ACT IN 1933 APPROVED
THE SECURITIES EXCHANGE ACT IN 1934, AND THE DEFINITION OF SECURITY
CONTAINED IN THE 1934 ACT IS VIRTUALLY IDENTICAL TO THAT IN THE EARLIER
ENACTMENT.  THE LEGISLATIVE HISTORY OF THE 1934 ACT IS SILENT WITH
RESPECT TO SAVINGS AND LOAN SHARES, BUT THE SENATE REPORT ON THE ACT
ASSERTS THAT ITS DEFINITION OF SECURITY WAS INTENDED TO BE
"SUBSTANTIALLY THE SAME AS THAT CONTAINED IN THE SECURITIES ACT OF
1933."  S. REP. NO. 792, 73D CONG., 2D SESS., 14 (1934).  IN ADDITION,
WHEN CONGRESS AMENDED THE 1934 ACT IN 1964 TO PROVIDE FOR THE
REGISTRATION OF CERTAIN EQUITY SECURITIES, IT PROVIDED AN EXEMPTION FOR
"ANY SECURITY  ... ISSUED BY A SAVINGS AND LOAN ASSOCIATION  ...  ." 
15 U.S.C. SEC. 78LG)(2)(C).  THUS, THE 1934 ACT HAS A PATTERN OF
COVERAGE AND EXEMPTION OF SAVINGS AND LOAN SHARES SIMILAR TO THE
PATTERN IN THE 1933 ACT.  (FN30)    WE VIEW THE COURT OF APPEALS'
CONCLUSION THAT THE PETITIONERS' WITHDRAWABLE CAPITAL SHARES ARE NOT
SECURITIES AS A PRODUCT OF MISPLACED EMPHASIS.  AFTER REVIEWING THE
DEFINITION OF SECURITY IN SEC. 3(A)(10), THE COURT OF APPEALS STATED
THAT "THE TYPE OF INTEREST NOW BEFORE US, IF IT IS COVERED BY THIS
DEFINITION, MUST BE AN 'INSTRUMENT COMMONLY KNOWN AS A "SECURITY."'" 
371 F.2D, AT 376.  THUS, THE COURT OF APPEALS READ THE WORDS AN
"INSTRUMENT COMMONLY KNOWN AS A 'SECURITY'" IN SEC. 3(A)(10) AS A
LIMITATION ON THE OTHER DESCRIPTIVE TERMS USED IN THE STATUTORY
DEFINITION.  THIS, OF COURSE, IS CONTRARY TO OUR DECISION IN JOINER
WHERE WE REJECTED THE RESPONDENTS' INVITATION TO "CONSTRICT THE MORE
GENERAL TERMS SUBSTANTIALLY TO THE SPECIFIC TERMS WHICH THEY FOLLOW." 
320 U.S., AT 350.  IN ADDITION, WE CANNOT AGREE WITH THE COURT OF
APPEALS' ANALYSIS WHICH LED IT TO CONCLUDE THAT A WITHDRAWABLE CAPITAL
SHARE IS NOT AN "INSTRUMENT COMMONLY KNOWN AS A 'SECURITY.'"  FOR
EXAMPLE, THE COURT OF APPEALS STRESSED THAT WITHDRAWABLE CAPITAL SHARES
CAN BE ISSUED IN UNLIMITED AMOUNTS AND THEIR HOLDERS HAVE NO PRE
EMPTIVE RIGHTS.  YET THE SAME IS TRUE OF SHARES IN MUTUAL FUNDS, AND WE
HAVE LITTLE DOUBT THAT SUCH SHARES ARE SECURITIES WITHIN THE MEANING OF
THE SECURITIES EXCHANGE ACT.  THE COURT OF APPEALS ALSO EMPHASIZED THAT
THE WITHDRAWABLE CAPITAL SHARES ARE MADE NONNEGOTIABLE BY ILLINOIS
LAW.  THIS SIMPLY REFLECTS THE FACT THAT SUCH SHARES ARE NOT A USUAL
MEDIUM FOR TRADING IN THE MARKETS.  THE SAME CAN BE SAID FOR THE TYPES
OF INTERESTS WHICH WE FOUND TO BE SECURITIES IN HOWEY AND JOINER. 
(FN31)  THE COURT OF APPEALS NOTED FURTHER THAT THE HOLDERS OF
WITHDRAWABLE CAPITAL SHARES ARE NOT ENTITLED UNDER ILLINOIS LAW TO
INSPECT THE GENERAL BOOKS AND RECORDS OF THE ASSOCIATION.  INSPECTION
OF THAT NATURE, HOWEVER, IS NOT A RIGHT WHICH UNIVERSALLY ATTACHES TO
CORPORATE SHARES.  (FN32)  IN SHORT, THE VARIOUS FACTORS HIGHLIGHTED BY
THE COURT OF APPEALS IN CONCLUDING THAT THE WITHDRAWABLE CAPITAL SHARES
ARE NOT AN "INSTRUMENT COMMONLY KNOWN AS A 'SECURITY'" SERVE ONLY TO
DISTINGUISH AMONG DIFFERENT TYPES OF SECURITIES.  THEY DO NOT, STANDING
ALONE, GOVERN WHETHER A PARTICULAR INSTRUMENT IS A SECURITY UNDER THE
FEDERAL SECURITIES LAWS. 

THE COURT OF APPEALS THOUGHT IT HIGHLY SIGNIFICANT THAT THE TERM
"EVIDENCE OF INDEBTEDNESS" APPEARS IN THE DEFINITION OF SECURITY IN THE
1933 ACT BUT WAS OMITTED FROM THE DEFINITION IN THE 1934 ACT.  WE
CANNOT AGREE THAT THE OMISSION HAS ANY CONTROLLING SIGNIFICANCE IN THIS
CASE.  FOR ONE THING, WE HAVE FOUND OTHER DESCRIPTIVE TERMS IN SEC.
3(A)(10) WHICH COVER THE PETITIONERS' WITHDRAWABLE CAPITAL SHARES.  THE
COURT OF APPEALS' EMPHASIS ON THE OMISSION OF "EVIDENCE OF
INDEBTEDNESS" FROM SEC. 3(A)(10) FLOWED FROM ITS CONCLUSION THAT THE
PETITIONERS'"RELATIONSHIP WITH THE ENTERPRISE IS MUCH MORE THAT OF
DEBTOR-CREDITOR THAN INVESTMENT."  371 F.2D, AT 377.  THAT ASSERTION,
HOWEVER, OVERLOOKS THE FACT THAT, UNDER ILLINOIS LAW, THE HOLDER OF A
WITHDRAWABLE CAPITAL SHARE DOES NOT BECOME A CREDITOR OF A SAVINGS AND
LOAN ASSOCIATION EVEN WHEN HE FILES AN APPLICATION FOR WITHDRAWAL. 
(FN33)  FOR THIS REASON ALONE, THE OMISSION OF THE TERM "EVIDENCE OF
INDEBTEDNESS" FROM SEC. 3(A)(10) PROVIDES NO BASIS FOR CONCLUDING THAT
CONGRESS INTENDED TO EXCLUDE THE PETITIONERS' WITHDRAWABLE CAPITAL
SHARES FROM THE ACT'S COVERAGE. 

THE COURT OF APPEALS SOUGHT A POLICY BASIS FOR ITS DECISION WHEN IT
NOTED THAT THE FEDERAL SECURITIES LAWS "WERE PASSED IN THE AFTERMATH OF
THE GREAT ECONOMIC DISASTER OF 1929.  CONGRESS WAS CONCERNED WITH
SPECULATION IN SECURITIES WHICH HAD A FLUCTUATING VALUE AND WHICH WERE
TRADED IN SECURITIES EXCHANGES OR IN OVER-THE-COUNTER MARKETS."  371
F.2D, AT 377.  THIS STATEMENT SUGGESTS, AND THE RESPONDENTS HAVE ARGUED
IN THIS COURT, THAT THE PETITIONERS' WITHDRAWABLE CAPITAL SHARES ARE
NOT WITHIN THE PURVIEW OF THE 1934 ACT BECAUSE THEIR VALUE NORMALLY
DOES NOT FLUCTUATE AND BECAUSE THEY ARE NORMALLY NOT TRADED IN
SECURITIES EXCHANGES OR OVER-THE-COUNTER.  THE ACCURACY OF THIS
ASSERTION IS OPEN TO QUESTION.  (FN34)  BUT, MORE IMPORTANT, IT IS
IRRELEVANT TO THE QUESTION BEFORE US.  AS WAS OBSERVED IN HOWEY, "IT IS
IMMATERIAL WHETHER THE ENTERPRISE IS SPECULATIVE OR NONSPECULATIVE." 
328 U.S., AT 301. 

POLICY CONSIDERATIONS LEAD US TO CONCLUDE THAT THESE PETITIONERS ARE
ENTITLED TO THE INVESTOR PROTECTIONS AFFORDED BY THE SECURITIES
EXCHANGE ACT.  WE AGREE FULLY WITH THE FOLLOWING OBSERVATIONS MADE BY
JUDGE CUMMINGS IN HIS DISSENT BELOW: 

"THE INVESTORS IN CITY SAVINGS WERE LESS ABLE TO PROTECT THEMSELVES
THAN THE PURCHASERS OF ORANGE GROVES IN HOWEY.  THESE PETITIONERS HAD
TO RELY COMPLETELY ON CITY SAVINGS' MANAGEMENT TO CHOOSE SUITABLE
PROPERTIES ON WHICH TO MAKE MORTGAGE LOANS  ...  .  THE MEMBERS OF CITY
SAVINGS WERE WIDELY SCATTERED.  MANY OF THEM PROBABLY INVESTED IN CITY
SAVINGS ON THE GROUND THAT THEIR MONEY WOULD BE SAFER THAN IN STOCKS
...  .  BECAUSE SAVINGS AND LOAN ASSOCIATIONS ARE CONSTANTLY SEEKING
INVESTORS THROUGH ADVERTISING  ...  THE SEC'S PRESENT TENDER OF ITS
EXPERT SERVICES SHOULD BE ESPECIALLY BENEFICIAL TO WOULD-BE SAVINGS AND
LOAN INVESTORS AS A SHIELD AGAINST UNSCRUPULOUS OR UNQUALIFIED
PROMOTERS."  371 F.2D, AT 384-385. 

THE RESPONDENTS HAVE ARGUED THAT WE SHOULD NOT DECLARE THE
PETITIONERS' WITHDRAWABLE CAPITAL SHARES SECURITIES UNDER SEC. 3(A)(10)
BECAUSE THE PETITIONERS, IF THEY ARE SUCCESSFUL IN THEIR SUIT FOR
RESCISSION, WILL GAIN AN UNFAIR ADVANTAGE OVER OTHER INVESTORS IN CITY
SAVINGS IN THE DISTRIBUTION OF THE LIMITED ASSETS OF THAT ASSOCIATION,
WHICH IS NOW IN LIQUIDATION.  THIS ARGUMENT, AT BEST, IS A NON
SEQUITUR.  THIS CASE IN ITS PRESENT POSTURE INVOLVES NO ISSUE OF
PRIORITY OF CLAIMS AGAINST CITY SAVINGS.  THIS CASE INVOLVES ONLY THE
THRESHOLD QUESTION OF WHETHER A FEDERAL COURT HAS JURISDICTION OVER THE
COMPLAINT FILED BY THE PETITIONERS - A QUESTION WHICH TURNS ON OUR
CONSTRUCTION OF THE TERM "SECURITY" AS DEFINED BY SEC. 3(A)(10) OF THE
SECURITIES EXCHANGE ACT OF 1934.  IT IS TOTALLY IRRELEVANT TO THAT
NARROW QUESTION OF STATUTORY CONSTRUCTION THAT THESE PETITIONERS, IF
THEY ARE SUCCESSFUL IN THEIR FEDERAL SUIT, MIGHT HAVE RIGHTS IN THE
LIMITED ASSETS OF CITY SAVINGS SUPERIOR TO THOSE OF OTHER INVESTORS IN
THAT ASSOCIATION.  REVERSED. 

FN1  ILL. REV. STAT., C. 32, SECS 701-944. 

FN2  THE MEMBERS OF THE CLASS WERE IDENTIFIED IN THE COMPLAINT AS
"MORE THAN 5,000 INVESTORS WHO HAVE PURCHASED SECURITIES (I.E.,
WITHDRAWABLE CAPITAL SHARES) OF CITY SAVINGS SINCE JULY 23, 1959 ...
."  THE TOTAL INVESTMENT OF THE CLASS MEMBERS WAS ALLEGED TO AMOUNT TO
"BETWEEN FIFTEEN AND TWENTY MILLION DOLLARS." 

FN3  THE STATE OFFICIALS HAD ACTED UNDER THE AUTHORITY OF ILL. REV.
STAT., C. 32, SEC 848.  THE RECORD DOES NOT DISCLOSE THE PRECISE REASON
FOR PLACING CITY SAVINGS UNDER STATE CUSTODY.  HOWEVER, THE COMPLAINT
FILED IN THE DISTRICT COURT AND THE PETITIONERS' BRIEF IN THIS COURT
SUGGEST THAT CITY SAVINGS HAS BEEN THE VICTIM OF MISMANAGEMENT OF MAJOR
PROPORTIONS. 

FN4  THE VOLUNTARY PLAN OF LIQUIDATION WAS FORMALLY APPROVED FOUR
DAYS AFTER THE PETITIONERS HAD FILED THEIR COMPLAINT.  HOWEVER, THE
THREE LIQUIDATORS HAD BEEN NOMINATED PRIOR TO THE FILING OF THE
COMPLAINT, AND THEIR ELECTION HAD BEEN A FOREGONE CONCLUSION. 
VOLUNTARY LIQUIDATION IS AUTHORIZED BY ILL. REV. STAT., C. 32, ART. 9. 

FN5  15 U.S.C. SEC. 78CA)(10). 

FN6  15 U.S.C. SEC. 78JB). 

FN7  17 CFR SEC 240.10B-5. 

FN8  "2.  WHEN USED IN THIS TITLE, UNLESS THE CONTEXT OTHERWISE
REQUIRES: 

"(1)  THE TERM 'SECURITY' MEANS ANY NOTE, STOCK, TREASURY STOCK,
BOND, DEBENTURE, EVIDENCE OF INDEBTEDNESS, CERTIFICATE OF INTEREST OR
PARTICIPATION IN ANY PROFIT-SHARING AGREEMENT, COLLATERAL-TRUST
CERTIFICATE, PREORGANIZATION CERTIFICATE OR SUBSCRIPTION, TRANSFERABLE
SHARE, INVESTMENT CONTRACT, VOTING-TRUST CERTIFICATE, CERTIFICATE OF
DEPOSIT FOR A SECURITY, FRACTIONAL UNDIVIDED INTEREST IN OIL, GAS, OR
OTHER MINERAL RIGHTS, OR, IN GENERAL, ANY INTEREST OR INSTRUMENT
COMMONLY KNOWN AS A 'SECURITY'  ...  ."  48 STAT. 905. 

FN9  S.E.C. V. UNITED BENEFIT LIFE INS. CO., 387 U.S. 202 (1967);
S.E.C. V. VARIABLE ANNUITY LIFE INS. CO., 359 U.S. 65 (1959); S.E.C. V.
W.J. HOWEY CO., 328 U.S. 293 (1946); AND S.E.C. V. C.M. JOINER CORP.,
320 U.S. 344 (1943). 

FN10  THE SECURITIES EXCHANGE ACT WAS A PRODUCT OF A LENGTHY AND
HIGHLY PUBLICIZED INVESTIGATION BY THE SENATE COMMITTEE ON BANKING AND
CURRENCY INTO STOCK MARKET PRACTICES AND THE REASONS FOR THE STOCK
MARKET CRASH OF OCTOBER 1929.  SEE LOOMIS, THE SECURITIES EXCHANGE ACT
OF 1934 AND THE INVESTMENT ADVISERS ACT OF 1940, 28 GEO. WASH. L. REV.
214, 216-217 (1960). 

FN11  "THE CAPITAL OF AN ASSOCIATION MAY BE REPRESENTED BY
WITHDRAWABLE CAPITAL ACCOUNTS (SHARES AND SHARE ACCOUNTS) OR PERMANENT
RESERVE SHARES, OR BOTH  ...  ."  ILL. REV. STAT., C. 32, SEC. 761(A). 
"PERMANENT RESERVE SHARES SHALL CONSTITUTE A SECONDARY RESERVE OUT OF
WHICH LOSSES SHALL BE PAID AFTER ALL OTHER AVAILABLE RESERVES HAVE BEEN
EXHAUSTED  ... ."  ID., SEC 763. 

FN12  ID., SEC. 741(A)(1). 

FN13  ID., SEC. 742(D)(2).  EACH BORROWER FROM A SAVINGS AND LOAN
ASSOCIATION AUTOMATICALLY BECOMES A MEMBER OF THE ASSOCIATION, ID.,
SEC. 741(A)(2), BUT IS ENTITLED TO ONLY ONE VOTE, ID., SEC. 742(D)(4). 

FN14  ID., SEC. 778(C).  THE DIRECTORS ARE REQUIRED TO APPORTION AN
ASSOCIATION'S PROFITS AT LEAST ANNUALLY. 

FN15  ID., SEC 773. 

FN16  ID., SEC. 768(C). 

FN17  ID., SEC. 768(B). 

FN18  CF. S.E.C. V. VARIABLE ANNUITY LIFE INS. CO., 359 U.S. 65, 69. 

FN19  "THE TERM 'SECURITY' IN THE SECURITIES ACT OF 1933 IS DEFINED
IN SUFFICIENTLY BROAD AND GENERAL TERMS SO AS TO INCLUDE WITHIN THAT
DEFINITION THE MANY TYPES OF INSTRUMENTS THAT IN OUR COMMERCIAL WORLD
FALL WITHIN THE ORDINARY CONCEPT OF A SECURITY."  H.R. REP. NO. 85, 73D
CONG., 1ST SESS., 11 (1933). 

FN20  ILL. REV. STAT., C. 32, SEC 778. 

FN21  THE COURT OF APPEALS REFUSED TO APPLY THE HOWEY TEST IN THIS
CASE.  IT DID NOT VIEW THE PETITIONERS AS ENTERING A COMMON ENTERPRISE
WITH PROFITS TO COME SOLELY FROM THE EFFORTS OF OTHERS BECAUSE "PROFIT
IS DERIVED FROM LOANS TO OTHER MEMBERS OF THE SAVINGS AND LOAN
ASSOCIATION."  371 F.2D, AT 377.  THAT ANALYSIS, HOWEVER, PLACES TOO
MUCH EMPHASIS ON THE FACT THAT, UNDER ILLINOIS LAW, ANYONE WHO BORROWS
FROM A SAVINGS AND LOAN ASSOCIATION AUTOMATICALLY BECOMES A MEMBER OF
THE ASSOCIATION.  ILL. REV. STAT., C. 32, SEC. 741(A)(2).  IT ALSO
OVERLOOKS THE SEVERAL OTHER CLASSES OF INVESTMENTS WHICH ILLINOIS
SAVINGS AND LOAN ASSOCIATIONS ARE AUTHORIZED TO MAKE.  ID., SECS 792
792.10. 

FN22  ID., SEC. 768(A). 

FN23  ID., SEC. 768(B). 

FN24  HEARINGS ON H.R. 4314 BEFORE THE HOUSE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE, 73D CONG., 1ST SESS., 70-75 (1933)(TESTIMONY OF
MORTON BODFISH, EXECUTIVE MANAGER, UNITED STATES BUILDING AND LOAN
LEAGUE); HEARINGS ON S. 875 BEFORE THE SENATE COMMITTEE ON BANKING AND
CURRENCY, 73D CONG., 1ST SESS., 50-54 (1933)(TESTIMONY OF C. CLINTON
JAMES, CHAIRMAN, FEDERAL LEGISLATIVE COMMITTEE OF THE UNITED STATES
BUILDING AND LOAN LEAGUE). 

FN25  HEARINGS ON H.R. 4314, SUPRA, AT 71. 

FN26  ID., AT 73. 

FN27  ID., AT 74. 

FN28  15 U.S.C. SEC. 77CA)(5). 

FN29  THE VIEW EXPRESSED BY THE BUILDING AND LOAN ASSOCIATION
INTERESTS IN 1933 HAS NOT CHANGED OVER THE YEARS.  THE UNITED STATES
SAVINGS AND LOAN LEAGUE, IN ITS MEMBERSHIP BULLETIN, MADE THE FOLLOWING
COMMENTS ON THE COURT'S DECISION TO HEAR THIS CASE: 

"THIS CASE IS NOT NECESSARILY AS SIGNIFICANT AND EARTH SHAKING IN ITS
IMPLICATIONS AS MANY SAVINGS AND LOAN PEOPLE ASSUME.  IN THE FIRST
PLACE THE SAVINGS AND LOAN BUSINESS ALWAYS HAS ASSUMED THAT IT WAS
SUBJECT TO THE ANTIFRAUD PROVISIONS OF THE SECURITIES ACTS RELATING TO
ADVERTISING PRACTICES, ETC.  REGARDLESS OF HOW THIS CASE GOES IT DOES
NOT MEAN THAT SAVINGS AND LOAN ASSOCIATIONS WILL BE ANY MORE INVOLVED
WITH THE SEC THAN THEY HAVE BEEN IN THE PAST.  IT DOES NOT MEAN THAT
ASSOCIATIONS WOULD HAVE TO REGISTER WITH THE SEC AND BE SUBJECT TO ALL
OF THE RULES THAT APPLY TO TYPICAL SECURITIES TRANSACTIONS." 

UNITED STATES SAVINGS AND LOAN LEAGUE, MEMBERSHIP BULLETIN, JUNE 28,
1967, P. 15. 

FN30  THE COURT OF APPEALS REJECTED THE VIEW THAT WE TAKE OF THE
LEGISLATIVE HISTORY OF FEDERAL SECURITIES LEGISLATION WITH RESPECT TO
SAVINGS AND LOAN ASSOCIATION SHARES.  IN EFFECT, THE COURT OF APPEALS
VIEWED CONGRESS' EXEMPTION OF SAVINGS AND LOAN SHARES FROM THE
REGISTRATION REQUIREMENTS AS WHAT PROFESSOR LOSS CALLS
"SUPEREROGATION."  1 LOSS, SECURITIES REGULATION 497 (2D ED. 1961). 
THE COURT OF APPEALS BASED ITS ARGUMENT ON THE ANALOGY IT DREW BETWEEN
ORDINARY INSURANCE POLICIES, WHICH ARE ALSO EXEMPTED FROM THE 1933
ACT'S REGISTRATION PROVISIONS, AND SAVINGS AND LOAN SHARES.  THE
ANALOGY, HOWEVER, IS INAPPROPRIATE.  CONGRESS SPECIFICALLY STATED THAT
"INSURANCE POLICIES ARE NOT TO BE REGARDED AS SECURITIES SUBJECT TO THE
PROVISIONS OF THE ACT,"  H.R. REP. NO. 85, 73D CONG., 1ST SESS., 15
(1933), AND THE EXEMPTION FROM REGISTRATION FOR INSURANCE POLICIES WAS
CLEARLY SUPEREROGATION.  SEE S.E.C.  V. VARIABLE ANNUITY LIFE INS. CO.,
359 U.S. 65, 74, N. 4.  THE SAME CANNOT BE SAID FOR SAVINGS AND LOAN
SHARES, PARTICULARLY WHEN THE SPOKESMEN FOR THOSE WHO ISSUE SAVINGS AND
LOAN SHARES HAD TOLD CONGRESS THEY FULLY EXPECTED TO BE COVERED BY THE
1933 ACT'S ANTIFRAUD PROVISIONS.    FN31  IN HOWEY, THIS COURT RULED
THAT INTERESTS IN ORANGE GROVES WERE SECURITIES UNDER THE 1933 ACT.  IN
JOINER, IT HELD THAT OIL LEASES WERE SECURITIES UNDER THE ACT. 

FN32  SEE BAKER & CARY, CASES AND MATERIALS ON CORPORATIONS 739-741
(3D ED. 1958). 

FN33  ILL. REV. STAT., C. 32, SEC. 773(F).    FN34  THE SEC, IN ITS
BRIEF AMICUS CURIAE SUBMITTED IN THIS CASE, POINTS OUT THAT IT GRANTED
A TEMPORARY EXEMPTION FROM SECS 7, 8, 12, AND 13 OF THE 1934 ACT TO
PASSBOOKS OF SAVINGS AND LOAN ASSOCIATIONS, WHICH WERE BEING TRADED ON
THE CLEVELAND STOCK EXCHANGE SHORTLY AFTER THE ACT'S PASSAGE.  THE SEC
ALSO POINTS OUT THAT IT HAS REPEATEDLY ENFORCED THE ACT'S REGISTRATION
PROVISIONS AGAINST BROKERS AND DEALERS WHOSE BUSINESS INCLUDES THE
SOLICITATION OF FUNDS FOR DEPOSIT IN SAVINGS AND LOAN ASSOCIATIONS. 
BRIEF FOR THE SEC 22-24. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION AND DECISION
OF THIS CASE. 
..END :
























KATZ V. UNITED STATES 389 U.S. 347 


NO. 35.  ARGUED OCTOBER 17, 1967.  - DECIDED DECEMBER 18, 1967.  - 369
F.2D 130, REVERSED. 


PETITIONER WAS CONVICTED UNDER AN INDICTMENT CHARGING HIM WITH
TRANSMITTING WAGERING INFORMATION BY TELEPHONE ACROSS STATE LINES IN
VIOLATION OF 18 U.S.C. SEC. 1084.  EVIDENCE OF PETITIONER'S END OF THE
CONVERSATIONS, OVERHEARD BY FBI AGENTS WHO HAD ATTACHED AN ELECTRONIC
LISTENING AND RECORDING DEVICE TO THE OUTSIDE OF THE TELEPHONE BOOTH
FROM WHICH THE CALLS WERE MADE, WAS INTRODUCED AT THE TRIAL.  THE COURT
OF APPEALS AFFIRMED THE CONVICTION, FINDING THAT THERE WAS NO FOURTH
AMENDMENT VIOLATION SINCE THERE WAS "NO PHYSICAL ENTRANCE INTO THE AREA
OCCUPIED BY" PETITIONER.  HELD: 

1.  THE GOVERNMENT'S EAVESDROPPING ACTIVITIES VIOLATED THE PRIVACY
UPON WHICH PETITIONER JUSTIFIABLY RELIED WHILE USING THE TELEPHONE
BOOTH AND THUS CONSTITUTED A "SEARCH AND SEIZURE" WITHIN THE MEANING OF
THE FOURTH AMENDMENT.  PP. 350-353. 

(A)  THE FOURTH AMENDMENT GOVERNS NOT ONLY THE SEIZURE OF TANGIBLE
ITEMS BUT EXTENDS AS WELL TO THE RECORDING OF ORAL STATEMENTS. 
SILVERMAN V. UNITED STATES, 365 U.S. 505, 511.  P. 353. 

(B)  BECAUSE THE FOURTH AMENDMENT PROTECTS PEOPLE RATHER THAN PLACES,
ITS REACH CANNOT TURN ON THE PRESENCE OR ABSENCE OF A PHYSICAL
INTRUSION INTO ANY GIVEN ENCLOSURE.  THE "TRESPASS" DOCTRINE OF
OLMSTEAD V. UNITED STATES, 277 U.S. 438, AND GOLDMAN V. UNITED STATES,
316 U.S. 129, IS NO LONGER CONTROLLING.  PP. 351, 353. 

2.  ALTHOUGH THE SURVEILLANCE IN THIS CASE MAY HAVE BEEN SO NARROWLY
CIRCUMSCRIBED THAT IT COULD CONSTITUTIONALLY HAVE BEEN AUTHORIZED IN
ADVANCE, IT WAS NOT IN FACT CONDUCTED PURSUANT TO THE WARRANT PROCEDURE
WHICH IS A CONSTITUTIONAL PRECONDITION OF SUCH ELECTRONIC
SURVEILLANCE.  PP. 354-359. 

KATZ V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED IN THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA UNDER AN EIGHT-COUNT INDICTMENT CHARGING HIM
WITH TRANSMITTING WAGERING INFORMATION BY TELEPHONE FROM LOS ANGELES TO
MIAMI AND BOSTON, IN VIOLATION OF A FEDERAL STATUTE.  (FN1)  AT TRIAL
THE GOVERNMENT WAS PERMITTED, OVER THE PETITIONER'S OBJECTION, TO
INTRODUCE EVIDENCE OF THE PETITIONER'S END OF TELEPHONE CONVERSATIONS,
OVERHEARD BY FBI AGENTS WHO HAD ATTACHED AN ELECTRONIC LISTENING AND
RECORDING DEVICE TO THE OUTSIDE OF THE PUBLIC TELEPHONE BOOTH FROM
WHICH HE HAD PLACED HIS CALLS.  IN AFFIRMING HIS CONVICTION, THE COURT
OF APPEALS REJECTED THE CONTENTION THAT THE RECORDINGS HAD BEEN
OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT, BECAUSE "THERE WAS NO
PHYSICAL ENTRANCE INTO THE AREA OCCUPIED BY THE PETITIONER."  (FN2)  WE
GRANTED CERTIORARI IN ORDER TO CONSIDER THE CONSTITUTIONAL QUESTIONS
THUS PRESENTED.  (FN3) 

THE PETITIONER HAS PHRASED THOSE QUESTIONS AS FOLLOWS: 

"A.  WHETHER A PUBLIC TELEPHONE BOOTH IS A CONSTITUTIONALLY PROTECTED
AREA SO THAT EVIDENCE OBTAINED BY ATTACHING AN ELECTRONIC LISTENING
RECORDING DEVICE TO THE TOP OF SUCH A BOOTH IS OBTAINED IN VIOLATION OF
THE RIGHT TO PRIVACY OF THE USER OF THE BOOTH. 

"B.  WHETHER PHYSICAL PENETRATION OF A CONSTITUTIONALLY PROTECTED
AREA IS NECESSARY BEFORE A SEARCH AND SEIZURE CAN BE SAID TO BE
VIOLATIVE OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION." 

WE DECLINE TO ADOPT THIS FORMULATION OF THE ISSUES.  IN THE FIRST
PLACE, THE CORRECT SOLUTION OF FOURTH AMENDMENT PROBLEMS IS NOT
NECESSARILY PROMOTED BY INCANTATION OF THE PHRASE "CONSTITUTIONALLY
PROTECTED AREA."  SECONDLY, THE FOURTH AMENDMENT CANNOT BE TRANSLATED
INTO A GENERAL CONSTITUTIONAL "RIGHT TO PRIVACY."  THAT AMENDMENT
PROTECTS INDIVIDUAL PRIVACY AGAINST CERTAIN KINDS OF GOVERNMENTAL
INTRUSION, BUT ITS PROTECTIONS GO FURTHER, AND OFTEN HAVE NOTHING TO DO
WITH PRIVACY AT ALL.  (FN4)  OTHER PROVISIONS OF THE CONSTITUTION
PROTECT PERSONAL PRIVACY FROM OTHER FORMS OF GOVERNMENTAL INVASION. 
(FN5)  BUT THE PROTECTION OF A PERSON'S GENERAL RIGHT TO PRIVACY - HIS
RIGHT TO BE LET ALONE BY OTHER PEOPLE (FN6) - IS, LIKE THE PROTECTION
OF HIS PROPERTY AND OF HIS VERY LIFE, LEFT LARGELY TO THE LAW OF THE
INDIVIDUAL STATES.  (FN7) 

BECAUSE OF THE MISLEADING WAY THE ISSUES HAVE BEEN FORMULATED, THE
PARTIES HAVE ATTACHED GREAT SIGNIFICANCE TO THE CHARACTERIZATION OF THE
TELEPHONE BOOTH FROM WHICH THE PETITIONER PLACED HIS CALLS.  THE
PETITIONER HAS STRENUOUSLY ARGUED THAT THE BOOTH WAS A
"CONSTITUTIONALLY PROTECTED AREA."  THE GOVERNMENT HAS MAINTAINED WITH
EQUAL VIGOR THAT IT WAS NOT.  (FN8)  BUT THIS EFFORT TO DECIDE WHETHER
OR NOT A GIVEN "AREA," VIEWED IN THE ABSTRACT, IS "CONSTITUTIONALLY
PROTECTED" DEFLECTS ATTENTION FROM THE PROBLEM PRESENTED BY THIS CASE. 
(FN9)  FOR THE FOURTH AMENDMENT PROTECTS PEOPLE, NOT PLACES.  WHAT A
PERSON KNOWINGLY EXPOSES TO THE PUBLIC, EVEN IN HIS OWN HOME OR OFFICE,
IS NOT A SUBJECT OF FOURTH AMENDMENT PROTECTION.  SEE LEWIS V. UNITED
STATES, 385 U.S. 206-210; UNITED STATES V. LEE, 274 U.S. 559, 563.  BUT
WHAT HE SEEKS TO PRESERVE AS PRIVATE, EVEN IN AN AREA ACCESSIBLE TO THE
PUBLIC, MAY BE CONSTITUTIONALLY PROTECTED.  SEE RIOS V. UNITED STATES,
364 U.S. 253; EX PARTE JACKSON, 96 U.S. 727, 733. 

THE GOVERNMENT STRESSES THE FACT THAT THE TELEPHONE BOOTH FROM WHICH
THE PETITIONER MADE HIS CALLS WAS CONSTRUCTED PARTLY OF GLASS, SO THAT
HE WAS AS VISIBLE AFTER HE ENTERED IT AS HE WOULD HAVE BEEN IF HE HAD
REMAINED OUTSIDE.  BUT WHAT HE SOUGHT TO EXCLUDE WHEN HE ENTERED THE
BOOTH WAS NOT THE INTRUDING EYE - IT WAS THE UNINVITED EAR.  HE DID NOT
SHED HIS RIGHT TO DO SO SIMPLY BECAUSE HE MADE HIS CALLS FROM A PLACE
WHERE HE MIGHT BE SEEN.  NO LESS THAN AN INDIVIDUAL IN A BUSINESS
OFFICE, (FN10) IN A FRIEND'S APARTMENT, (FN11) OR IN A TAXICAB, (FN12)
A PERSON IN A TELEPHONE BOOTH MAY RELY UPON THE PROTECTION OF THE
FOURTH AMENDMENT.  ONE WHO OCCUPIES IT, SHUTS THE DOOR BEHIND HIM, AND
PAYS THE TOLL THAT PERMITS HIM TO PLACE A CALL IS SURELY ENTITLED TO
ASSUME THAT THE WORDS HE UTTERS INTO THE MOUTHPIECE WILL NOT BE
BROADCAST TO THE WORLD.  TO READ THE CONSTITUTION MORE NARROWLY IS TO
IGNORE THE VITAL ROLE THAT THE PUBLIC TELEPHONE HAS COME TO PLAY IN
PRIVATE COMMUNICATION. 

THE GOVERNMENT CONTENDS, HOWEVER, THAT THE ACTIVITIES OF ITS AGENTS
IN THIS CASE SHOULD NOT BE TESTED BY FOURTH AMENDMENT REQUIREMENTS, FOR
THE SURVEILLANCE TECHNIQUE THEY EMPLOYED INVOLVED NO PHYSICAL
PENETRATION OF THE TELEPHONE BOOTH FROM WHICH THE PETITIONER PLACED HIS
CALLS.  IT IS TRUE THAT THE ABSENCE OF SUCH PENETRATION WAS AT ONE TIME
THOUGHT TO FORECLOSE FURTHER FOURTH AMENDMENT INQUIRY, OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 457, 464, 466; GOLDMAN V. UNITED STATES,
316 U.S. 129, 134-136, FOR THAT AMENDMENT WAS THOUGHT TO LIMIT ONLY
SEARCHES AND SEIZURES OF TANGIBLE PROPERTY.  (FN13)  BUT "THE PREMISE
THAT PROPERTY INTERESTS CONTROL THE RIGHT OF THE GOVERNMENT TO SEARCH
AND SEIZE HAS BEEN DISCREDITED."  WARDEN V. HAYDEN, 387 U.S. 294, 304. 
THUS, ALTHOUGH A CLOSELY DIVIDED COURT SUPPOSED IN OLMSTEAD THAT
SURVEILLANCE WITHOUT ANY TRESPASS AND WITHOUT THE SEIZURE OF ANY
MATERIAL OBJECT FELL OUTSIDE THE AMBIT OF THE CONSTITUTION, WE HAVE
SINCE DEPARTED FROM THE NARROW VIEW ON WHICH THAT DECISION RESTED. 
INDEED, WE HAVE EXPRESSLY HELD THAT THE FOURTH AMENDMENT GOVERNS NOT
ONLY THE SEIZURE OF TANGIBLE ITEMS, BUT EXTENDS AS WELL TO THE
RECORDING OF ORAL STATEMENTS, OVERHEARD WITHOUT ANY "TECHNICAL TRESPASS
UNDER  ...  LOCAL PROPERTY LAW."  SILVERMAN V. UNITED STATES, 365 U.S.
505, 511.  ONCE THIS MUCH IS ACKNOWLEDGED, AND ONCE IT IS RECOGNIZED
THAT THE FOURTH AMENDMENT PROTECTS PEOPLE - AND NOT SIMPLY "AREAS" -
AGAINST UNREASONABLE SEARCHES AND SEIZURES, IT BECOMES CLEAR THAT THE
REACH OF THAT AMENDMENT CANNOT TURN UPON THE PRESENCE OR ABSENCE OF A
PHYSICAL INTRUSION INTO ANY GIVEN ENCLOSURE. 

WE CONCLUDE THAT THE UNDERPINNINGS OF OLMSTEAD AND GOLDMAN HAVE BEEN
SO ERODED BY OUR SUBSEQUENT DECISIONS THAT THE "TRESPASS" DOCTRINE
THERE ENUNCIATED CAN NO LONGER BE REGARDED AS CONTROLLING.  THE
GOVERNMENT'S ACTIVITIES IN ELECTRONICALLY LISTENING TO AND RECORDING
THE PETITIONER'S WORDS VIOLATED THE PRIVACY UPON WHICH HE JUSTIFIABLY
RELIED WHILE USING THE TELEPHONE BOOTH AND THUS CONSTITUTED A "SEARCH
AND SEIZURE" WITHIN THE MEANING OF THE FOURTH AMENDMENT.  THE FACT THAT
THE ELECTRONIC DEVICE EMPLOYED TO ACHIEVE THAT END DID NOT HAPPEN TO
PENETRATE THE WALL OF THE BOOTH CAN HAVE NO CONSTITUTIONAL
SIGNIFICANCE. 

THE QUESTION REMAINING FOR DECISION, THEN, IS WHETHER THE SEARCH AND
SEIZURE CONDUCTED IN THIS CASE COMPLIED WITH CONSTITUTIONAL STANDARDS. 
IN THAT REGARD, THE GOVERNMENT'S POSITION IS THAT ITS AGENTS ACTED IN
AN ENTIRELY DEFENSIBLE MANNER:  THEY DID NOT BEGIN THEIR ELECTRONIC
SURVEILLANCE UNTIL INVESTIGATION OF THE PETITIONER'S ACTIVITIES HAD
ESTABLISHED A STRONG PROBABILITY THAT HE WAS USING THE TELEPHONE IN
QUESTION TO TRANSMIT GAMBLING INFORMATION TO PERSONS IN OTHER STATES,
IN VIOLATION OF FEDERAL LAW.  MOREOVER, THE SURVEILLANCE WAS LIMITED,
BOTH IN SCOPE AND IN DURATION, TO THE SPECIFIC PURPOSE OF ESTABLISHING
THE CONTENTS OF THE PETITIONER'S UNLAWFUL TELEPHONIC COMMUNICATIONS. 
THE AGENTS CONFINED THEIR SURVEILLANCE TO THE BRIEF PERIODS DURING
WHICH HE USED THE TELEPHONE BOOTH, (FN14) AND THEY TOOK GREAT CARE TO
OVERHEAR ONLY THE CONVERSATIONS OF THE PETITIONER HIMSELF.  (FN15) 

ACCEPTING THIS ACCOUNT OF THE GOVERNMENT'S ACTIONS AS ACCURATE, IT IS
CLEAR THAT THIS SURVEILLANCE WAS SO NARROWLY CIRCUMSCRIBED THAT A DULY
AUTHORIZED MAGISTRATE, PROPERLY NOTIFIED OF THE NEED FOR SUCH
INVESTIGATION, SPECIFICALLY INFORMED OF THE BASIS ON WHICH IT WAS TO
PROCEED, AND CLEARLY APPRISED OF THE PRECISE INTRUSION IT WOULD ENTAIL,
COULD CONSTITUTIONALLY HAVE AUTHORIZED, WITH APPROPRIATE SAFEGUARDS,
THE VERY LIMITED SEARCH AND SEIZURE THAT THE GOVERNMENT ASSERTS IN FACT
TOOK PLACE.  ONLY LAST TERM WE SUSTAINED THE VALIDITY OF SUCH AN
AUTHORIZATION, HOLDING THAT, UNDER SUFFICIENTLY "PRECISE AND
DISCRIMINATE CIRCUMSTANCES," A FEDERAL COURT MAY EMPOWER GOVERNMENT
AGENTS TO EMPLOY A CONCEALED ELECTRONIC DEVICE "FOR THE NARROW AND
PARTICULARIZED PURPOSE OF ASCERTAINING THE TRUTH OF THE  ...
ALLEGATIONS" OF A "DETAILED FACTUAL AFFIDAVIT ALLEGING THE COMMISION OF
A SPECIFIC CRIMINAL OFFENSE."  OSBORN V. UNITED STATES, 385 U.S. 323,
329-330.  DISCUSSING THAT HOLDING, THE COURT IN BERGER V. NEW YORK, 388
U.S. 41, SAID THAT "THE ORDER AUTHORIZING THE USE OF THE ELECTRONIC
DEVICE" IN OSBORN "AFFORDED SIMILAR PROTECTIONS TO THOSE  ...  OF
CONVENTIONAL WARRANTS AUTHORIZING THE SEIZURE OF TANGIBLE EVIDENCE." 
THROUGH THOSE PROTECTIONS, "NO GREATER INVASION OF PRIVACY WAS
PERMITTED THAN WAS NECESSARY UNDER THE CIRCUMSTANCES."  ID., AT 57. 
(FN16) HERE, TOO, A SIMILAR JUDICIAL ORDER COULD HAVE ACCOMMODATED "THE
LEGITIMATE NEEDS OF LAW ENFORCEMENT" (FN17) BY AUTHORIZING THE
CAREFULLY LIMITED USE OF ELECTRONIC SURVEILLANCE. 

THE GOVERNMENT URGES THAT, BECAUSE ITS AGENTS RELIED UPON THE
DECISIONS IN OLMSTEAD AND GOLDMAN, AND BECAUSE THEY DID NO MORE HERE
THAN THEY MIGHT PROPERLY HAVE DONE WITH PRIOR JUDICIAL SANCTION, WE
SHOULD RETROACTIVELY VALIDATE THEIR CONDUCT.  THAT WE CANNOT DO.  IT IS
APPARENT THAT THE AGENTS IN THIS CASE ACTED WITH RESTRAINT.  YET THE
INESCAPABLE FACT IS THAT THIS RESTRAINT WAS IMPOSED BY THE AGENTS
THEMSELVES, NOT BY A JUDICIAL OFFICER.  THEY WERE NOT REQUIRED, BEFORE
COMMENCING THE SEARCH, TO PRESENT THEIR ESTIMATE OF PROBABLE CAUSE FOR
DETACHED SCRUTINY BY A NEUTRAL MAGISTRATE.  THEY WERE NOT COMPELLED,
DURING THE CONDUCT OF THE SEARCH ITSELF, TO OBSERVE PRECISE LIMITS
ESTABLISHED IN ADVANCE BY A SPECIFIC COURT ORDER.  NOR WERE THEY
DIRECTED, AFTER THE SEARCH HAD BEEN COMPLETED, TO NOTIFY THE
AUTHORIZING MAGISTRATE IN DETAIL OF ALL THAT HAD BEEN SEIZED.  IN THE
ABSENCE OF SUCH SAFEGUARDS, THIS COURT HAS NEVER SUSTAINED A SEARCH
UPON THE SOLE GROUND THAT OFFICERS REASONABLY EXPECTED TO FIND EVIDENCE
OF A PARTICULAR CRIME AND VOLUNTARILY CONFINED THEIR ACTIVITIES TO THE
LEAST INTRUSIVE MEANS CONSISTENT WITH THAT END.  SEARCHES CONDUCTED
WITHOUT WARRANTS HAVE BEEN HELD UNLAWFUL "NOTWITHSTANDING FACTS
UNQUESTIONABLY SHOWING PROBABLE CAUSE," AGNELLO V. UNITED STATES, 269
U.S. 20, 33, FOR THE CONSTITUTION REQUIRES "THAT THE DELIBERATE,
IMPARTIAL JUDGMENT OF A JUDICIAL OFFICER ... BE INTERPOSED BETWEEN THE
CITIZEN AND THE POLICE ... ."  WONG SUN V. UNITED STATES, 371 U.S. 471,
481-482.  "OVER AND AGAIN THIS COURT HAS EMPHASIZED THAT THE MANDATE OF
THE FOURTH AMENDMENT REQUIRES ADHERENCE TO JUDICIAL PROCESSES," UNITED
STATES V. JEFFERS, 342 U.S. 48, 51, AND THAT SEARCHES CONDUCTED OUTSIDE
THE JUDICIAL PROCESS, WITHOUT PRIOR APPROVAL BY JUDGE OR MAGISTRATE,
ARE PER SE UNREASONABLE UNDER THE FOURTH AMENDMENT (FN18) - SUBJECT
ONLY TO A FEW SPECIFICALLY ESTABLISHED AND WELL-DELINEATED EXCEPTIONS. 
(FN19) 

IT IS DIFFICULT TO IMAGINE HOW ANY OF THOSE EXCEPTIONS COULD EVER
APPLY TO THE SORT OF SEARCH AND SEIZURE INVOLVED IN THIS CASE.  EVEN
ELECTRONIC SURVEILLANCE SUBSTANTIALLY CONTEMPORANEOUS WITH AN
INDIVIDUAL'S ARREST COULD HARDLY BE DEEMED AN "INCIDENT" OF THAT
ARREST.  (FN20)  NOR COULD THE USE OF ELECTRONIC SURVEILLANCE WITHOUT
PRIOR AUTHORIZATION BE JUSTIFIED ON GROUNDS OF "HOT PURSUIT."  (FN21)
AND, OF COURSE, THE VERY NATURE OF ELECTRONIC SURVEILLANCE PRECLUDES
ITS USE PURSUANT TO THE SUSPECT'S CONSENT.  (FN22) 

THE GOVERNMENT DOES NOT QUESTION THESE BASIC PRINCIPLES.  RATHER, IT
URGES THE CREATION OF A NEW EXCEPTION TO COVER THIS CASE.  (FN23)  IT
ARGUES THAT SURVEILLANCE OF A TELEPHONE BOOTH SHOULD BE EXEMPTED FROM
THE USUAL REQUIREMENT OF ADVANCE AUTHORIZATION BY A MAGISTRATE UPON A
SHOWING OF PROBABLE CAUSE.  WE CANNOT AGREE.  OMISSION OF SUCH
AUTHORIZATION: 

"BYPASSES THE SAFEGUARDS PROVIDED BY AN OBJECTIVE PREDETERMINATION OF
PROBABLE CAUSE, AND SUBSTITUTES INSTEAD THE FAR LESS RELIABLE PROCEDURE
OF AN AFTER-THE-EVENT JUSTIFICATION FOR THE  ... SEARCH, TOO LIKELY TO
BE SUBTLY INFLUENCED BY THE FAMILIAR SHORTCOMINGS OF HINDSIGHT
JUDGMENT."  BECK V. OHIO, 379 U.S. 89, 96. 

AND BYPASSING A NEUTRAL PREDETERMINATION OF THE SCOPE OF A SEARCH
LEAVES INDIVIDUALS SECURE FROM FOURTH AMENDMENT VIOLATIONS "ONLY IN THE
DISCRETION OF THE POLICE."  ID., AT 97. 

THESE CONSIDERATIONS DO NOT VANISH WHEN THE SEARCH IN QUESTION IS
TRANSFERRED FROM THE SETTING OF A HOME, AN OFFICE, OR A HOTEL ROOM TO
THAT OF A TELEPHONE BOOTH.  WHEREVER A MAN MAY BE, HE IS ENTITLED TO
KNOW THAT HE WILL REMAIN FREE FROM UNREASONABLE SEARCHES AND SEIZURES. 
THE GOVERNMENT AGENTS HERE IGNORED "THE PROCEDURE OF ANTECENDENT
JUSTIFICATION  ...  THAT IS CENTRAL TO THE FOURTH AMENDMENT," (FN24) A
PROCEDURE THAT WE HOLD TO BE A CONSTITUTIONAL PRECONDITION OF THE KIND
OF ELECTRONIC SURVEILLANCE INVOLVED IN THIS CASE.  BECAUSE THE
SURVEILLANCE HERE FAILED TO MEET THAT CONDITION, AND BECAUSE IT LED TO
THE PETITIONER'S CONVICTION, THE JUDGMENT MUST BE REVERSED.  IT IS SO
ORDERED.    FN1  18 U.S.C. SEC. 1084.  THAT STATUTE PROVIDES IN
PERTINENT PART: 

"(A)  WHOEVER BEING ENGAGED IN THE BUSINESS OF BETTING OR WAGERING
KNOWINGLY USES A WIRE COMMUNICATION FACILITY FOR THE TRANSMISSION IN
INTERSTATE OR FOREIGN COMMERCE OF BETS OR WAGERS OR INFORMATION
ASSISTING IN THE PLACING OF BETS OR WAGERS ON ANY SPORTING EVENT OR
CONTEST, OR FOR THE TRANSMISSION OF A WIRE COMMUNICATION WHICH ENTITLES
THE RECIPIENT TO RECEIVE MONEY OR CREDIT AS A RESULT OF BETS OR WAGERS,
OR FOR INFORMATION ASSISTING IN THE PLACING OF BETS OR WAGERS, SHALL BE
FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TWO YEARS, OR
BOTH.    "(B)  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT
THE TRANSMISSION IN INTERSTATE OR FOREIGN COMMERCE OF INFORMATION FOR
USE IN NEWS REPORTING OF SPORTING EVENTS OR CONTESTS, OR FOR THE
TRANSMISSION OF INFORMATION ASSISTING IN THE PLACING OF BETS OR WAGERS
ON A SPORTING EVENT OR CONTEST FROM A STATE WHERE BETTING ON THAT
SPORTING EVENT OR CONTEST IS LEGAL INTO A STATE IN WHICH SUCH BETTING
IS LEGAL." 

FN2  369 F.2D 130, 134. 

FN3  386 U.S. 954.  THE PETITION FOR CERTIORARI ALSO CHALLENGED THE
VALIDITY OF A WARRANT AUTHORIZING THE SEARCH OF THE PETITIONER'S
PREMISES.  IN LIGHT OF OUR DISPOSITION OF THIS CASE, WE DO NOT REACH
THAT ISSUE. 

WE FIND NO MERIT IN THE PETITIONER'S FURTHER SUGGESTION THAT HIS
INDICTMENT MUST BE DISMISSED.  AFTER HIS CONVICTION WAS AFFIRMED BY THE
COURT OF APPEALS, HE TESTIFIED BEFORE A FEDERAL GRAND JURY CONCERNING
THE CHARGES INVOLVED HERE.  BECAUSE HE WAS COMPELLED TO TESTIFY
PURSUANT TO A GRANT OF IMMUNITY, 48 STAT. 1096, AS AMENDED, 47 U.S.C.
SEC. 409(L), IT IS CLEAR THAT THE FRUIT OF HIS TESTIMONY CANNOT BE USED
AGAINST HIM IN ANY FUTURE TRIAL.  BUT THE PETITIONER ASKS FOR MORE.  HE
CONTENDS THAT HIS CONVICTION MUST BE VACATED AND THE CHARGES AGAINST
HIM DISMISSED LEST HE BE "SUBJECTED TO A PENALTY  ...  ON ACCOUNT OF A
...  MATTER  ...  CONCERNING WHICH HE WAS COMPELLED ...  TO TESTIFY
...  ."  47 U.S.C. SEC. 409(L).  FRANK V. UNITED STATES, 347 F.2D 486. 
WE DISAGREE.  IN RELEVANT PART, SEC. 409(L) SUBSTANTIALLY REPEATS THE
LANGUAGE OF THE COMPULSORY TESTIMONY ACT OF 1893, 27 STAT. 443, 49
U.S.C. SEC. 46, WHICH WAS CONGRESS' RESPONSE TO THIS COURT'S STATEMENT
THAT AN IMMUNITY STATUTE CAN SUPPLANT THE FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION ONLY IF IT AFFORDS ADEQUATE PROTECTION FROM
FUTURE PROSECUTION OR CONVICTION.  COUNSELMAN V. HITCHCOCK, 142 U.S.
547, 585-586.  THE STATUTORY PROVISION HERE INVOLVED WAS DESIGNED TO
PROVIDE SUCH PROTECTION, SEE BROWN V. UNITED STATES, 359 U.S. 41, 45
46, NOT TO CONFER IMMUNITY FROM PUNISHMENT PURSUANT TO A PRIOR
PROSECUTION AND ADJUDICATION OF GUILT.  CF. REINA V. UNITED STATES, 364
U.S. 507, 513-514. 

FN4  "THE AVERAGE MAN WOULD VERY LIKELY NOT HAVE HIS FEELINGS SOOTHED
ANY MORE BY HAVING HIS PROPERTY SEIZED OPENLY THAN BY HAVING IT SEIZED
PRIVATELY AND BY STEALTH  ...  .  AND A PERSON CAN BE JUST AS MUCH, IF
NOT MORE, IRRITATED, ANNOYED AND INJURED BY AN UNCEREMONIOUS PUBLIC
ARREST BY A POLICEMAN AS HE IS BY A SEIZURE IN THE PRIVACY OF HIS
OFFICE OR HOME."  GRISWOLD V. CONNECTICUT, 381 U.S. 479, 509
(DISSENTING OPINION OF MR. JUSTICE BLACK). 

FN5  THE FIRST AMENDMENT, FOR EXAMPLE, IMPOSES LIMITATIONS UPON
GOVERNMENTAL ABRIDGMENT OF "FREEDOM TO ASSOCIATE AND PRIVACY IN ONE'S
ASSOCIATIONS."  NAACP V. ALABAMA, 357 U.S. 449, 462.  THE THIRD
AMENDMENT'S PROHIBITION AGAINST THE UNCONSENTED PEACETIME QUARTERING OF
SOLDIERS PROTECTS ANOTHER ASPECT OF PRIVACY FROM GOVERNMENTAL
INTRUSION.  TO SOME EXTENT, THE FIFTH AMENDMENT TOO "REFLECTS THE
CONSTITUTION'S CONCERN FOR  ...  '  ...  THE RIGHT OF EACH INDIVIDUAL
"TO A PRIVATE ENCLAVE WHERE HE MAY LEAD A PRIVATE LIFE."'"  TEHAN V.
SHOTT, 382 U.S. 406, 416.  VIRTUALLY EVERY GOVERNMENTAL ACTION
INTERFERES WITH PERSONAL PRIVACY TO SOME DEGREE.  THE QUESTION IN EACH
CASE IS WHETHER THAT INTERFERENCE VIOLATES A COMMAND OF THE UNITED
STATES CONSTITUTION. 

FN6  SEE WARREN & BRANDEIS, THE RIGHT TO PRIVACY, 4 HARV. L. REV. 193
(1890). 

FN7  SEE, E.G., TIME, INC. V. HILL, 385 U.S. 374.  CF. BREARD V.
ALEXANDRIA, 341 U.S. 622; KOVACS V. COOPER, 336 U.S. 77. 

FN8  IN SUPPORT OF THEIR RESPECTIVE CLAIMS, THE PARTIES HAVE COMPILED
COMPETING LISTS OF "PROTECTED AREAS" FOR OUR CONSIDERATION.  IT APPEARS
TO BE COMMON GROUND THAT A PRIVATE HOME IS SUCH AN AREA, WEEKS V.
UNITED STATES, 232 U.S. 383, BUT THAT AN OPEN FIELD IS NOT.  HESTER V.
UNITED STATES, 265 U.S. 57.  DEFENDING THE INCLUSION OF A TELEPHONE
BOOTH IN HIS LIST THE PETITIONER CITES UNITED STATES V. STONE, 232 F.
SUPP. 396, AND UNITED STATES V. MADISON, 32 L.W. 2243 (D.C. CT. GEN.
SESS.).  URGING THAT THE TELEPHONE BOOTH SHOULD BE EXCLUDED, THE
GOVERNMENT FINDS SUPPORT IN UNITED STATES V. BORGESE, 235 F. SUPP.
286. 

FN9  IT IS TRUE THAT THIS COURT HAS OCCASIONALLY DESCRIBED ITS
CONCLUSIONS IN TERMS OF "CONSTITUTIONALLY PROTECTED AREAS," SEE, E.G.,
SILVERMAN V. UNITED STATES, 365 U.S. 505, 510, 512; LOPEZ V. UNITED
STATES, 373 U.S. 427, 438-439; BERGER V. NEW YORK, 388 U.S. 41, 57, 59,
BUT WE HAVE NEVER SUGGESTED THAT THIS CONCEPT CAN SERVE AS A TALISMANIC
SOLUTION TO EVERY FOURTH AMENDMENT PROBLEM. 

FN10  SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385. 

FN11  JONES V. UNITED STATES, 362 U.S. 257. 

FN12  RIOS V. UNITED STATES, 364 U.S. 253. 

FN13  SEE OLMSTEAD V. UNITED STATES, 277 U.S. 438, 464-466.  WE DO
NOT DEAL IN THIS CASE WITH THE LAW OF DETENTION OR ARREST UNDER THE
FOURTH AMENDMENT. 

FN14  BASED UPON THEIR PREVIOUS VISUAL OBSERVATIONS OF THE
PETITIONER, THE AGENTS CORRECTLY PREDICTED THAT HE WOULD USE THE
TELEPHONE BOOTH FOR SEVERAL MINUTES AT APPROXIMATELY THE SAME TIME EACH
MORNING.  THE PETITIONER WAS SUBJECTED TO ELECTRONIC SURVEILLANCE ONLY
DURING THIS PREDETERMINED PERIOD.  SIX RECORDINGS, AVERAGING SOME THREE
MINUTES EACH, WERE OBTAINED AND ADMITTED IN EVIDENCE.  THEY PRESERVED
THE PETITIONER'S END OF CONVERSATIONS CONCERNING THE PLACING OF BETS
AND THE RECEIPT OF WAGERING INFORMATION. 

FN15  ON THE SINGLE OCCASION WHEN THE STATEMENTS OF ANOTHER PERSON
WERE INADVERTENTLY INTERCEPTED, THE AGENTS REFRAINED FROM LISTENING TO
THEM. 

FN16  ALTHOUGH THE PROTECTIONS AFFORDED THE PETITIONER IN OSBORN WERE
"SIMILAR  ...  TO THOSE  ...  OF CONVENTIONAL WARRANTS," THEY WERE NOT
IDENTICAL.  A CONVENTIONAL WARRANT ORDINARILY SERVES TO NOTIFY THE
SUSPECT OF AN INTENDED SEARCH.  BUT IF OSBORN HAD BEEN TOLD IN ADVANCE
THAT FEDERAL OFFICERS INTENDED TO RECORD HIS CONVERSATIONS, THE POINT
OF MAKING SUCH RECORDINGS WOULD OBVIOUSLY HAVE BEEN LOST; THE EVIDENCE
IN QUESTION COULD NOT HAVE BEEN OBTAINED.  IN OMITTING ANY REQUIREMENT
OF ADVANCE NOTICE, THE FEDERAL COURT THAT AUTHORIZED ELECTRONIC
SURVEILLANCE IN OSBORN SIMPLY RECOGNIZED, AS HAS THIS COURT, THAT
OFFICERS NEED NOT ANNOUNCE THEIR PURPOSE BEFORE CONDUCTING AN OTHERWISE
AUTHORIZED SEARCH IF SUCH AN ANNOUNCEMENT WOULD PROVOKE THE ESCAPE OF
THE SUSPECT OR THE DESTRUCTION OF CRITICAL EVIDENCE.  SEE KER V.
CALIFORNIA, 374 U.S. 23, 37-41. 

ALTHOUGH SOME HAVE THOUGHT THAT THIS "EXCEPTION TO THE NOTICE
REQUIREMENT WHERE EXIGENT CIRCUMSTANCES ARE PRESENT," ID., AT 39,
SHOULD BE DEEMED INAPPLICABLE WHERE POLICE ENTER A HOME BEFORE ITS
OCCUPANTS ARE AWARE THAT OFFICERS ARE PRESENT, ID., AT 55-58 (OPINION
OF MR. JUSTICE BRENNAN), THE REASONS FOR SUCH A LIMITATION HAVE NO
BEARING HERE.  HOWEVER TRUE IT MAY BE THAT "INNOCENT CITIZENS SHOULD
NOT SUFFER THE SHOCK, FRIGHT OR EMBARRASSMENT ATTENDANT UPON AN
UNANNOUNCED POLICE INTRUSION," ID., AT 57, AND THAT "THE REQUIREMENT OF
AWARENESS  ...  SERVES TO MINIMIZE THE HAZARDS OF THE OFFICERS'
DANGEROUS CALLING," ID., AT 57-58, THESE CONSIDERATIONS ARE NOT
RELEVANT TO THE PROBLEMS PRESENTED BY JUDICIALLY AUTHORIZED ELECTRONIC
SURVEILLANCE. 

NOR DO THE FEDERAL RULES OF CRIMINAL PROCEDURE IMPOSE AN INFLEXIBLE
REQUIREMENT OF PRIOR NOTICE.  RULE 41(D) DOES REQUIRE FEDERAL OFFICERS
TO SERVE UPON THE PERSON SEARCHED A COPY OF THE WARRANT AND A RECEIPT
DESCRIBING THE MATERIAL OBTAINED, BUT IT DOES NOT INVARIABLY REQUIRE
THAT THIS BE DONE BEFORE THE SEARCH TAKES PLACE.  NORDELLI V. UNITED
STATES, 24 F.2D 665, 666-667. 

THUS THE FACT THAT THE PETITIONER IN OSBORN WAS UNAWARE THAT HIS
WORDS WERE BEING ELECTRONICALLY TRANSCRIBED DID NOT PREVENT THIS COURT
FROM SUSTAINING HIS CONVICTION, AND DID NOT PREVENT THE COURT IN BERGER
FROM REACHING THE CONCLUSION THAT THE USE OF THE RECORDING DEVICE
SANCTIONED IN OSBORN WAS ENTIRELY LAWFUL.  388 U.S. 41, 57. 

FN17  LOPEZ V. UNITED STATES, 373 U.S. 427, 464 (DISSENTING OPINION
OF MR. JUSTICE BRENNAN). 

FN18  SEE, E.G., JONES V. UNITED STATES, 357 U.S. 493, 497-499; RIOS
V. UNITED STATES, 364 U.S. 253, 261; CHAPMAN V. UNITED STATES, 365 U.S.
610, 613-615; STONER V. CALIFORNIA, 376 U.S. 483, 486-487. 

FN19  SEE, E.G., CARROLL V. UNITED STATES, 267 U.S. 132, 153, 156;
MCDONALD V. UNITED STATES, 335 U.S. 451, 454-456; BRINEGAR V. UNITED
STATES, 338 U.S. 160, 174-177; COOPER V. CALIFORNIA, 386 U.S. 58;
WARDEN V. HAYDEN, 387 U.S. 294, 298-300. 

FN20  IN AGNELLO V. UNITED STATES, 269 U.S. 20, 30, THE COURT
STATED: 

"THE RIGHT WITHOUT A SEARCH WARRANT CONTEMPORANEOUSLY TO SEARCH
PERSONS LAWFULLY ARRESTED WHILE COMMITTING CRIME AND TO SEARCH THE
PLACE WHERE THE ARREST IS MADE IN ORDER TO FIND AND SEIZE THINGS
CONNECTED WITH THE CRIME AS ITS FRUITS OR AS THE MEANS BY WHICH IT WAS
COMMITTED, AS WELL AS WEAPONS AND OTHER THINGS TO EFFECT AN ESCAPE FROM
CUSTODY, IS NOT TO BE DOUBTED." 

WHATEVER ONE'S VIEW OF "THE LONG-STANDING PRACTICE OF SEARCHING FOR
OTHER PROOFS OF GUILT WITHIN THE CONTROL OF THE ACCUSED FOUND UPON
ARREST," UNITED STATES V. RABINOWITZ, 339 U.S. 56, 61; CF. ID., AT 71
79 (DISSENTING OPINION OF MR. JUSTICE FRANKFURTER), THE CONCEPT OF AN
"INCIDENTAL" SEARCH CANNOT READILY BE EXTENDED TO INCLUDE SURREPTITIOUS
SURVEILLANCE OF AN INDIVIDUAL EITHER IMMEDIATELY BEFORE, OR IMMEDIATELY
AFTER, HIS ARREST. 

FN21  ALTHOUGH "THE FOURTH AMENDMENT DOES NOT REQUIRE POLICE OFFICERS
TO DELAY IN THE COURSE OF AN INVESTIGATION IF TO DO SO WOULD GRAVELY
ENDANGER THEIR LIVES OR THE LIVES OF OTHERS," WARDEN V. HAYDEN, 387
U.S. 294, 298-299, THERE SEEMS LITTLE LIKELIHOOD THAT ELECTRONIC
SURVEILLANCE WOULD BE A REALISTIC POSSIBILITY IN A SITUATION SO FRAUGHT
WITH URGENCY. 

FN22  A SEARCH TO WHICH AN INDIVIDUAL CONSENTS MEETS FOURTH AMENDMENT
REQUIREMENTS, ZAP V. UNITED STATES, 328 U.S. 624, BUT OF COURSE "THE
USEFULNESS OF ELECTRONIC SURVEILLANCE DEPENDS ON LACK OF NOTICE TO THE
SUSPECT."  LOPEZ V. UNITED STATES, 373 U.S. 427, 463 (DISSENTING
OPINION OF MR. JUSTICE BRENNAN). 

FN23  WHETHER SAFEGUARDS OTHER THAN PRIOR AUTHORIZATION BY A
MAGISTRATE WOULD SATISFY THE FOURTH AMENDMENT IN A SITUATION INVOLVING
THE NATIONAL SECURITY IS A QUESTION NOT PRESENTED BY THIS CASE. 

FN24  SEE OSBORN V. UNITED STATES, 385 U.S. 323, 330. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I FEEL COMPELLED TO REPLY TO
THE SEPARATE CONCURRING OPINION OF MY BROTHER WHITE, WHICH I VIEW AS A
WHOLLY UNWARRANTED GREEN LIGHT FOR THE EXECUTIVE BRANCH TO RESORT TO
ELECTRONIC EAVESDROPPING WITHOUT A WARRANT IN CASES WHICH THE EXECUTIVE
BRANCH ITSELF LABELS "NATIONAL SECURITY" MATTERS. 

NEITHER THE PRESIDENT NOR THE ATTORNEY GENERAL IS A MAGISTRATE.  IN
MATTERS WHERE THEY BELIEVE NATIONAL SECURITY MAY BE INVOLVED THEY ARE
NOT DETACHED, DISINTERESTED, AND NEUTRAL AS A COURT OR MAGISTRATE MUST
BE.  UNDER THE SEPARATION OF POWERS CREATED BY THE CONSTITUTION, THE
EXECUTIVE BRANCH IS NOT SUPPOSED TO BE NEUTRAL AND DISINTERESTED. 
RATHER IT SHOULD VIGOROUSLY INVESTIGATE AND PREVENT BREACHES OF
NATIONAL SECURITY AND PROSECUTE THOSE WHO VIOLATE THE PERTINENT FEDERAL
LAWS.  THE PRESIDENT AND ATTORNEY GENERAL ARE PROPERLY INTERESTED
PARTIES, CAST IN THE ROLE OF ADVERSARY, IN NATIONAL SECURITY CASES. 
THEY MAY EVEN BE THE INTENDED VICTIMS OF SUBVERSIVE ACTION.  SINCE
SPIES AND SABOTEURS ARE AS ENTITLED TO THE PROTECTION OF THE FOURTH
AMENDMENT AS SUSPECTED GAMBLERS LIKE PETITIONER, I CANNOT AGREE THAT
WHERE SPIES AND SABOTEURS ARE INVOLVED ADEQUATE PROTECTION OF FOURTH
AMENDMENT RIGHTS IS ASSURED WHEN THE PRESIDENT AND ATTORNEY GENERAL
ASSUME BOTH THE POSITION OF ADVERSARY-AND-PROSECUTOR AND DISINTERESTED,
NEUTRAL MAGISTRATE. 

THERE IS, SO FAR AS I UNDERSTAND CONSTITUTIONAL HISTORY, NO
DISTINCTION UNDER THE FOURTH AMENDMENT BETWEEN TYPES OF CRIMES. 
ARTICLE III, SEC. 3, GIVES "TREASON" A VERY NARROW DEFINITION AND PUTS
RESTRICTIONS ON ITS PROOF.  BUT THE FOURTH AMENDMENT DRAWS NO LINES
BETWEEN VARIOUS SUBSTANTIVE OFFENSES.  THE ARRESTS IN CASES OF "HOT
PURSUIT" AND THE ARRESTS ON VISIBLE OR OTHER EVIDENCE OF PROBABLE CAUSE
CUT ACROSS THE BOARD AND ARE NOT PECULIAR TO ANY KIND OF CRIME. 

I WOULD RESPECT THE PRESENT LINES OF DISTINCTION AND NOT IMPROVISE
BECAUSE A PARTICULAR CRIME SEEMS PARTICULARLY HEINOUS.  WHEN THE
FRAMERS TOOK THAT STEP, AS THEY DID WITH TREASON, THE WORST CRIME OF
ALL, THEY MADE THEIR PURPOSE MANIFEST. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE OPINION OF THE COURT, WHICH I READ TO HOLD ONLY (A) THAT
AN ENCLOSED TELEPHONE BOOTH IS AN AREA WHERE, LIKE A HOME, WEEKS V.
UNITED STATES, 232 U.S. 383, AND UNLIKE A FIELD, HESTER V. UNITED
STATES, 265 U.S. 57, A PERSON HAS A CONSTITUTIONALLY PROTECTED
REASONABLE EXPECTATION OF PRIVACY; (B) THAT ELECTRONIC AS WELL AS
PHYSICAL INTRUSION INTO A PLACE THAT IS IN THIS SENSE PRIVATE MAY
CONSTITUTE A VIOLATION OF THE FOURTH AMENDMENT; AND (C) THAT THE
INVASION OF A CONSTITUTIONALLY PROTECTED AREA BY FEDERAL AUTHORITIES
IS, AS THE COURT HAS LONG HELD, PRESUMPTIVELY UNREASONABLE IN THE
ABSENCE OF A SEARCH WARRANT.    AS THE COURT'S OPINION STATES, "THE
FOURTH AMENDMENT PROTECTS PEOPLE, NOT PLACES."  THE QUESTION, HOWEVER,
IS WHAT PROTECTION IT AFFORDS TO THOSE PEOPLE.  GENERALLY, AS HERE, THE
ANSWER TO THAT QUESTION REQUIRES REFERENCE TO A "PLACE."  MY
UNDERSTANDING OF THE RULE THAT HAS EMERGED FROM PRIOR DECISIONS IS THAT
THERE IS A TWOFOLD REQUIREMENT, FIRST THAT A PERSON HAVE EXHIBITED AN
ACTUAL (SUBJECTIVE) EXPECTATION OF PRIVACY AND, SECOND, THAT THE
EXPECTATION BE ONE THAT SOCIETY IS PREPARED TO RECOGNIZE AS
"REASONABLE."  THUS A MAN'S HOME IS, FOR MOST PURPOSES, A PLACE WHERE
HE EXPECTS PRIVACY, BUT OBJECTS, ACTIVITIES, OR STATEMENTS THAT HE
EXPOSES TO THE "PLAIN VIEW" OF OUTSIDERS ARE NOT "PROTECTED" BECAUSE NO
INTENTION TO KEEP THEM TO HIMSELF HAS BEEN EXHIBITED.  ON THE OTHER
HAND, CONVERSATIONS IN THE OPEN WOULD NOT BE PROTECTED AGAINST BEING
OVERHEARD, FOR THE EXPECTATION OF PRIVACY UNDER THE CIRCUMSTANCES WOULD
BE UNREASONABLE.  CF. HESTER V. UNITED STATES, SUPRA. 

THE CRITICAL FACT IN THIS CASE IS THAT "ONE WHO OCCUPIES IT, (A
TELEPHONE BOOTH) SHUTS THE DOOR BEHIND HIM, AND PAYS THE TOLL THAT
PERMITS HIM TO PLACE A CALL IS SURELY ENTITLED TO ASSUME" THAT HIS
CONVERSATION IS NOT BEING INTERCEPTED.  ANTE, AT 352.  THE POINT IS NOT
THAT THE BOOTH IS "ACCESSIBLE TO THE PUBLIC" AT OTHER TIMES, ANTE, AT
351, BUT THAT IT IS A TEMPORARILY PRIVATE PLACE WHOSE MOMENTARY
OCCUPANTS' EXPECTATIONS OF FREEDOM FROM INTRUSION ARE RECOGNIZED AS
REASONABLE.  CF. RIOS V. UNITED STATES, 364 U.S. 253. 

IN SILVERMAN V. UNITED STATES, 365 U.S. 505, WE HELD THAT
EAVESDROPPING ACCOMPLISHED BY MEANS OF AN ELECTRONIC DEVICE THAT
PENETRATED THE PREMISES OCCUPIED BY PETITIONER WAS A VIOLATION OF THE
FOURTH AMENDMENT.  THAT CASE ESTABLISHED THAT INTERCEPTION OF
CONVERSATIONS REASONABLY INTENDED TO BE PRIVATE COULD CONSTITUTE A
"SEARCH AND SEIZURE," AND THAT THE EXAMINATION OR TAKING OF PHYSICAL
PROPERTY WAS NOT REQUIRED.  THIS VIEW OF THE FOURTH AMENDMENT WAS
FOLLOWED IN WONG SUN V. UNITED STATES, 371 U.S. 471, AT 485, AND BERGER
V. NEW YORK, 388 U.S. 41, AT 51.  ALSO COMPARE OSBORN V. UNITED STATES,
385 U.S. 323, AT 327.  IN SILVERMAN WE FOUND IT UNNECESSARY TO RE
EXAMINE GOLDMAN V. UNITED STATES, 316 U.S. 129, WHICH HAD HELD THAT
ELECTRONIC SURVEILLANCE ACCOMPLISHED WITHOUT THE PHYSICAL PENETRATION
OF PETITIONER'S PREMISES BY A TANGIBLE OBJECT DID NOT VIOLATE THE
FOURTH AMENDMENT.  THIS CASE REQUIRES US TO RECONSIDER GOLDMAN, AND I
AGREE THAT IT SHOULD NOW BE OVERRULED.*  ITS LIMITATION ON FOURTH
AMENDMENT PROTECTION IS, IN THE PRESENT DAY, BAD PHYSICS AS WELL AS BAD
LAW, FOR REASONABLE EXPECTATIONS OF PRIVACY MAY BE DEFEATED BY
ELECTRONIC AS WELL AS PHYSICAL INVASION. 

*I ALSO THINK THAT THE COURSE OF DEVELOPMENT EVINCED BY SILVERMAN,
SUPRA, WONG SUN, SUPRA, BERGER, SUPRA, AND TODAY'S DECISION MUST BE
RECOGNIZED AS OVERRULING OLMSTEAD V. UNITED STATES, 277 U.S. 438, WHICH
ESSENTIALLY RESTED ON THE GROUND THAT CONVERSATIONS WERE NOT SUBJECT TO
THE PROTECTION OF THE FOURTH AMENDMENT. 

FINALLY, I DO NOT READ THE COURT'S OPINION TO DECLARE THAT NO
INTERCEPTION OF A CONVERSATION ONE-HALF OF WHICH OCCURS IN A PUBLIC
TELEPHONE BOOTH CAN BE REASONABLE IN THE ABSENCE OF A WARRANT.  AS
ELSEWHERE UNDER THE FOURTH AMENDMENT, WARRANTS ARE THE GENERAL RULE, TO
WHICH THE LEGITIMATE NEEDS OF LAW ENFORCEMENT MAY DEMAND SPECIFIC
EXCEPTIONS.  IT WILL BE TIME ENOUGH TO CONSIDER ANY SUCH EXCEPTIONS
WHEN AN APPROPRIATE OCCASION PRESENTS ITSELF, AND I AGREE WITH THE
COURT THAT THIS IS NOT ONE. 

MR. JUSTICE WHITE, CONCURRING. 

I AGREE THAT THE OFFICIAL SURVEILLANCE OF PETITIONER'S TELEPHONE
CONVERSATIONS IN A PUBLIC BOOTH MUST BE SUBJECTED TO THE TEST OF
REASONABLENESS UNDER THE FOURTH AMENDMENT AND THAT ON THE RECORD NOW
BEFORE US THE PARTICULAR SURVEILLANCE UNDERTAKEN WAS UNREASONABLE
ABSENT A WARRANT PROPERLY AUTHORIZING IT.  THIS APPLICATION OF THE
FOURTH AMENDMENT NEED NOT INTERFERE WITH LEGITIMATE NEEDS OF LAW
ENFORCEMENT.* 

*IN PREVIOUS CASES, WHICH ARE UNDISTURBED BY TODAY'S DECISION, THE
COURT HAS UPHELD, AS REASONABLE UNDER THE FOURTH AMENDMENT, ADMISSION
AT TRIAL OF EVIDENCE OBTAINED (1) BY AN UNDERCOVER POLICE AGENT TO WHOM
A DEFENDANT SPEAKS WITHOUT KNOWLEDGE THAT HE IS IN THE EMPLOY OF THE
POLICE, HOFFA V. UNITED STATES, 385 U.S. 293 (1966); (2) BY A RECORDING
DEVICE HIDDEN ON THE PERSON OF SUCH AN INFORMANT, LOPEZ V. UNITED
STATES, 373 U.S. 427 (1963); OSBORN V. UNITED STATES, 385 U.S. 323
(1966); AND (3) BY A POLICEMAN LISTENING TO THE SECRET MICRO-WAVE
TRANSMISSIONS OF AN AGENT CONVERSING WITH THE DEFENDANT IN ANOTHER
LOCATION, ON LEE V. UNITED STATES, 343 U.S. 747 (1952).  WHEN ONE MAN
SPEAKS TO ANOTHER HE TAKES ALL THE RISKS ORDINARILY INHERENT IN SO
DOING, INCLUDING THE RISK THAT THE MAN TO WHOM HE SPEAKS WILL MAKE
PUBLIC WHAT HE HAS HEARD.  THE FOURTH AMENDMENT DOES NOT PROTECT
AGAINST UNRELIABLE (OR LAW-ABIDING) ASSOCIATES.  HOFFA V. UNITED
STATES, SUPRA.  IT IS BUT A LOGICAL AND REASONABLE EXTENSION OF THIS
PRINCIPLE THAT A MAN TAKE THE RISK THAT HIS HEARER, FREE TO MEMORIZE
WHAT HE HEARS FOR LATER VERBATIM REPETITIONS, IS INSTEAD RECORDING IT
OR TRANSMITTING IT TO ANOTHER.  THE PRESENT CASE DEALS WITH AN ENTIRELY
DIFFERENT SITUATION, FOR AS THE COURT EMPHASIZES THE PETITIONER "SOUGHT
TO EXCLUDE  ...  THE UNINVITED EAR," AND SPOKE UNDER CIRCUMSTANCES IN
WHICH A REASONABLE PERSON WOULD ASSUME THAT UNINVITED EARS WERE NOT
LISTENING. 

IN JOINING THE COURT'S OPINION, I NOTE THE COURT'S ACKNOWLEDGMENT
THAT THERE ARE CIRCUMSTANCES IN WHICH IT IS REASONABLE TO SEARCH
WITHOUT A WARRANT.  IN THIS CONNECTION, IN FOOTNOTE 23 THE COURT POINTS
OUT THAT TODAY'S DECISION DOES NOT REACH NATIONAL SECURITY CASES. 
WIRETAPPING TO PROTECT THE SECURITY OF THE NATION HAS BEEN AUTHORIZED
BY SUCCESSIVE PRESIDENTS.  THE PRESENT ADMINISTRATION WOULD APPARENTLY
SAVE NATIONAL SECURITY CASES FROM RESTRICTIONS AGAINST WIRETAPPING. 
SEE BERGER V. NEW YORK, 388 U.S. 41, 112-118 (1967)(WHITE, J.,
DISSENTING).  WE SHOULD NOT REQUIRE THE WARRANT PROCEDURE AND THE
MAGISTRATE'S JUDGMENT IF THE PRESIDENT OF THE UNITED STATES OR HIS
CHIEF LEGAL OFFICER, THE ATTORNEY GENERAL, HAS CONSIDERED THE
REQUIREMENTS OF NATIONAL SECURITY AND AUTHORIZED ELECTRONIC
SURVEILLANCE AS REASONABLE. 

MR. JUSTICE BLACK, DISSENTING. 

IF I COULD AGREE WITH THE COURT THAT EAVESDROPPING CARRIED ON BY
ELECTRONIC MEANS (EQUIVALENT TO WIRETAPPING) CONSTITUTES A "SEARCH" OR
"SEIZURE," I WOULD BE HAPPY TO JOIN THE COURT'S OPINION.  FOR ON THAT
PREMISE MY BROTHER STEWART SETS OUT METHODS IN ACCORD WITH THE FOURTH
AMENDMENT TO GUIDE STATES IN THE ENACTMENT AND ENFORCEMENT OF LAWS
PASSED TO REGULATE WIRETAPPING BY GOVERNMENT.  IN THIS RESPECT TODAY'S
OPINION DIFFERS SHARPLY FROM BERGER V. NEW YORK, 388 U.S. 41, DECIDED
LAST TERM, WHICH HELD VOID ON ITS FACE A NEW YORK STATUTE AUTHORIZING
WIRETAPPING ON WARRANTS ISSUED BY MAGISTRATES ON SHOWINGS OF PROBABLE
CAUSE.  THE BERGER CASE ALSO SET UP WHAT APPEARED TO BE INSUPERABLE
OBSTACLES TO THE VALID PASSAGE OF SUCH WIRETAPPING LAWS BY STATES.  THE
COURT'S OPINION IN THIS CASE, HOWEVER, REMOVES THE DOUBTS ABOUT STATE
POWER IN THIS FIELD AND ABATES TO A LARGE EXTENT THE CONFUSION AND NEAR
PARALYZING EFFECT OF THE BERGER HOLDING.  NOTWITHSTANDING THESE GOOD
EFFORTS OF THE COURT, I AM STILL UNABLE TO AGREE WITH ITS
INTERPRETATION OF THE FOURTH AMENDMENT. 

MY BASIC OBJECTION IS TWOFOLD:  (1) I DO NOT BELIEVE THAT THE WORDS
OF THE AMENDMENT WILL BEAR THE MEANING GIVEN THEM BY TODAY'S DECISION,
AND (2) I DO NOT BELIEVE THAT IT IS THE PROPER ROLE OF THIS COURT TO
REWRITE THE AMENDMENT IN ORDER "TO BRING IT INTO HARMONY WITH THE
TIMES" AND THUS REACH A RESULT THAT MANY PEOPLE BELIEVE TO BE
DESIRABLE. 

WHILE I REALIZE THAT AN ARGUMENT BASED ON THE MEANING OF WORDS LACKS
THE SCOPE, AND NO DOUBT THE APPEAL, OF BROAD POLICY DISCUSSIONS AND
PHILOSOPHICAL DISCOURSES ON SUCH NEBULOUS SUBJECTS AS PRIVACY, FOR ME
THE LANGUAGE OF THE AMENDMENT IS THE CRUCIAL PLACE TO LOOK IN
CONSTRUING A WRITTEN DOCUMENT SUCH AS OUR CONSTITUTION.  THE FOURTH
AMENDMENT SAYS THAT: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

THE FIRST CLAUSE PROTECTS "PERSONS, HOUSES, PAPERS, AND EFFECTS,
AGAINST UNREASONABLE SEARCHES AND SEIZURES  ...  ."  THESE WORDS
CONNOTE THE IDEA OF TANGIBLE THINGS WITH SIZE, FORM, AND WEIGHT, THINGS
CAPABLE OF BEING SEARCHED, SEIZED, OR BOTH.  THE SECOND CLAUSE OF THE
AMENDMENT STILL FURTHER ESTABLISHES ITS FRAMERS' PURPOSE TO LIMIT ITS
PROTECTION TO TANGIBLE THINGS BY PROVIDING THAT NO WARRANTS SHALL ISSUE
BUT THOSE "PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE
PERSONS OR THINGS TO BE SEIZED."  A CONVERSATION OVERHEARD BY
EAVESDROPPING, WHETHER BY PLAIN SNOOPING OR WIRETAPPING, IS NOT
TANGIBLE AND, UNDER THE NORMALLY ACCEPTED MEANINGS OF THE WORDS, CAN
NEITHER BE SEARCHED NOR SEIZED.  IN ADDITION THE LANGUAGE OF THE SECOND
CLAUSE INDICATES THAT THE AMENDMENT REFERS NOT ONLY TO SOMETHING
TANGIBLE SO IT CAN BE SEIZED BUT TO SOMETHING ALREADY IN EXISTENCE SO
IT CAN BE DESCRIBED.  YET THE COURT'S INTERPRETATION WOULD HAVE THE
AMENDMENT APPLY TO OVERHEARING FUTURE CONVERSATIONS WHICH BY THEIR VERY
NATURE ARE NONEXISTENT UNTIL THEY TAKE PLACE.  HOW CAN ONE "DESCRIBE" A
FUTURE CONVERSATION, AND, IF ONE CANNOT, HOW CAN A MAGISTRATE ISSUE A
WARRANT TO EAVESDROP ONE IN THE FUTURE?  IT IS ARGUED THAT INFORMATION
SHOWING WHAT IS EXPECTED TO BE SAID IS SUFFICIENT TO LIMIT THE
BOUNDARIES OF WHAT LATER CAN BE ADMITTED INTO EVIDENCE; BUT DOES SUCH
GENERAL INFORMATION REALLY MEET THE SPECIFIC LANGUAGE OF THE AMENDMENT
WHICH SAYS "PARTICULARLY DESCRIBING"?  RATHER THAN USING LANGUAGE IN A
COMPLETELY ARTIFICAL WAY, I MUST CONCLUDE THAT THE FOURTH AMENDMENT
SIMPLY DOES NOT APPLY TO EAVESDROPPING. 

TAPPING TELEPHONE WIRES, OF COURSE, WAS AN UNKNOWN POSSIBILITY AT THE
TIME THE FOURTH AMENDMENT WAS ADOPTED.  BUT EAVESDROPPING (AND
WIRETAPPING IS NOTHING MORE THAN EAVESDROPPING BY TELEPHONE) WAS, AS
EVEN THE MAJORITY OPINION IN BERGER, SUPRA, RECOGNIZED, "AN ANCIENT
PRACTICE WHICH AT COMMON LAW WAS CONDEMNED AS A NUISANCE.  4
BLACKSTONE, COMMENTARIES 168.  IN THOSE DAYS THE EAVESDROPPER LISTENED
BY NAKED EAR UNDER THE EAVES OF HOUSES OR THEIR WINDOWS, OR BEYONG
THEIR WALLS SEEKING OUT PRIVATE DISCOURSE."  388 U.S. AT 45.  THERE CAN
BE NO DOUBT THAT THE FRAMERS WERE AWARE OF THIS PRACTICE, AND IF THEY
HAD DESIRED TO OUTLAW OR RESTRICT THE USE OF EVIDENCE OBTAINED BY
EAVESDROPPING, I BELIEVE THAT THEY WOULD HAVE USED THE APPROPRIATE
LANGUAGE TO DO SO IN THE FOURTH AMENDMENT.  THEY CERTAINLY WOULD NOT
HAVE LEFT SUCH A TASK TO THE INGENUITY OF LANGUAGE-STRETCHING JUDGES. 
NO ONE, IT SEEMS TO ME, CAN READ THE DEBATES ON THE BILL OF RIGHTS
WITHOUT REACHING THE CONCLUSION THAT ITS FRAMERS AND CRITICS WELL KNEW
THE MEANING OF THE WORDS THEY USED, WHAT THEY WOULD BE UNDERSTOOD TO
MEAN BY OTHERS, THEIR SCOPE AND THEIR LIMITATIONS.  UNDER THESE
CIRCUMSTANCES IT STRIKES ME AS A CHARGE AGAINST THEIR SCHOLARSHIP,
THEIR COMMON SENSE AND THEIR CANDOR TO GIVE TO THE FOURTH AMENDMENT'S
LANGUAGE THE EAVESDROPPING MEANING THE COURT IMPUTES TO IT TODAY. 

I DO NOT DENY THAT COMMON SENSE REQUIRES AND THAT THIS COURT OFTEN
HAS SAID THAT THE BILL OF RIGHTS' SAFEGUARDS SHOULD BE GIVEN A LIBERAL
CONSTRUCTION.  THIS PRINCIPLE, HOWEVER, DOES NOT JUSTIFY CONSTRUING THE
SEARCH AND SEIZURE AMENDMENT AS APPLYING TO EAVESDROPPING OR THE
"SEIZURE" OF CONVERSATIONS.  THE FOURTH AMENDMENT WAS AIMED DIRECTLY AT
THE ABHORRED PRACTICE OF BREAKING IN, RANSACKING AND SEARCHING HOMES
AND OTHER BUILDINGS AND SEIZING PEOPLE'S PERSONAL BELONGINGS WITHOUT
WARRANTS ISSUED BY MAGISTRATES.  THE AMENDMENT DESERVES, AND THIS COURT
HAS GIVEN IT, A LIBERAL CONSTRUCTION IN ORDER TO PROTECT AGAINST
WARRANTLESS SEARCHES OF BUILDINGS AND SEIZURES OF TANGIBLE PERSONAL
EFFECTS.  BUT UNTIL TODAY THIS COURT HAS REFUSED TO SAY THAT
EAVESDROPPING COMES WITHIN THE AMBIT OF FOURTH AMENDMENT RESTRICTIONS. 
SEE, E.G., OLMSTEAD V. UNITED STATES, 277 U.S. 438 (1928), AND GOLDMAN
V. UNITED STATES, 316 U.S. 129 (1942). 

SO FAR I HAVE ATTEMPTED TO STATE WHY I THINK THE WORDS OF THE FOURTH
AMENDMENT PREVENT ITS APPLICATION TO EAVESDROPPING.  IT IS IMPORTANT
NOW TO SHOW THAT THIS HAS BEEN THE TRADITIONAL VIEW OF THE AMENDMENT'S
SCOPE SINCE ITS ADOPTION AND THAT THE COURT'S DECISION IN THIS CASE,
ALONG WITH ITS AMORPHOUS HOLDING IN BERGER LAST TERM, MARKS THE FIRST
REAL DEPARTURE FROM THAT VIEW. 

THE FIRST CASE TO REACH THIS COURT WHICH ACTUALLY INVOLVED A CLEAR
CUT TEST OF THE FOURTH AMENDMENT'S APPLICABILITY TO EAVESDROPPING
THROUGH A WIRETAP WAS, OF COURSE, OLMSTEAD, SUPRA.  IN HOLDING THAT THE
INTERCEPTION OF PRIVATE TELEPHONE CONVERSATIONS BY MEANS OF WIRETAPPING
WAS NOT A VIOLATION OF THE FOURTH AMENDMENT, THIS COURT, SPEAKING
THROUGH MR. CHIEF JUSTICE TAFT, EXAMINED THE LANGUAGE OF THE AMENDMENT
AND FOUND, JUST AS I DO NOW, THAT THE WORDS COULD NOT BE STRETCHED TO
ENCOMPASS OVERHEARD CONVERSATIONS: 

"THE AMENDMENT ITSELF SHOWS THAT THE SEARCH IS TO BE OF MATERIAL
THINGS - THE PERSON, THE HOUSE, HIS PAPERS OR HIS EFFECTS.  THE
DESCRIPTION OF THE WARRANT NECESSARY TO MAKE THE PROCEEDING LAWFUL, IS
THAT IT MUST SPECIFY THE PLACE TO BE SEARCHED AND THE PERSON OR THINGS
TO BE SEIZED  ...  . 

     *         *         *         *         * 

"JUSTICE BRADLEY IN THE BOYD CASE (BOYD V. UNITED STATES, 116 U.S.
616), AND JUSTICE CLARKE IN THE GOULED CASE (GOULED V. UNITED STATES,
255 U.S. 298), SAID THAT THE FIFTH AMENDMENT AND THE FOURTH AMENDMENT
WERE TO BE LIBERALLY CONSTRUED TO EFFECT THE PURPOSE OF THE FRAMERS OF
THE CONSTITUTION IN THE INTEREST OF LIBERTY.  BUT THAT CAN NOT JUSTIFY
ENLARGEMENT OF THE LANGUAGE EMPLOYED BEYOND THE POSSIBLE PRACTICAL
MEANING OF HOUSES, PERSONS, PAPERS, AND EFFECTS, OR SO TO APPLY THE
WORDS SEARCH AND SEIZURE AS TO FORBID HEARING OR SIGHT."  277 U.S., AT
464-465.    GOLDMAN V. UNITED STATES, 316 U.S. 129, IS AN EVEN CLEARER
EXAMPLE OF THIS COURT'S TRADITIONAL REFUSAL TO CONSIDER EAVESDROPPING
AS BEING COVERED BY THE FOURTH AMENDMENT.  THERE FEDERAL AGENTS USED A
DETECTAPHONE, WHICH WAS PLACED ON THE WALL OF AN ADJOINING ROOM, TO
LISTEN TO THE CONVERSATION OF A DEFENDANT CARRIED ON IN HIS PRIVATE
OFFICE AND INTENDED TO BE CONFINED WITHIN THE FOUR WALLS OF THE ROOM. 
THIS COURT, REFERRING TO OLMSTEAD, FOUND NO FOURTH AMENDMENT
VIOLATION. 

IT SHOULD BE NOTED THAT THE COURT IN OLMSTEAD BASED ITS DECISION
SQUARELY ON THE FACT THAT WIRETAPPING OR EAVESDROPPING DOES NOT VIOLATE
THE FOURTH AMENDMENT.  AS SHOWN, SUPRA, IN THE CITED QUOTATION FROM THE
CASE, THE COURT WENT TO GREAT PAINS TO EXAMINE THE ACTUAL LANGUAGE OF
THE AMENDMENT AND FOUND THAT THE WORDS USED SIMPLY COULD NOT BE
STRETCHED TO COVER EAVESDROPPING.  THAT THERE WAS NO TRESPASS WAS NOT
THE DETERMINATIVE FACTOR, AND INDEED THE COURT IN CITING HESTER V.
UNITED STATES, 265 U.S. 57, INDICATED THAT EVEN WHERE THERE WAS A
TRESPASS THE FOURTH AMENDMENT DOES NOT AUTOMATICALLY APPLY TO EVIDENCE
OBTAINED BY "HEARING OR SIGHT."  THE OLMSTEAD MAJORITY CHARACTERIZED
HESTER AS HOLDING "THAT THE TESTIMONY OF TWO OFFICERS OF THE LAW WHO
TRESPASSED ON THE DEFENDANT'S LAND, CONCEALED THEMSELVES ONE HUNDRED
YARDS AWAY FROM HIS HOUSE AND SAW HIM COME OUT AND HAND A BOTTLE OF
WHISKEY TO ANOTHER, WAS NOT INADMISSIBLE.  WHILE THERE WAS A TRESPASS,
THERE WAS NO SEARCH OF PERSON, HOUSE, PAPERS OR EFFECTS."  277 U.S., AT
465.  THUS THE CLEAR HOLDING OF THE OLMSTEAD AND GOLDMAN CASES,
UNDILUTED BY ANY QUESTION OF TRESPASS, IS THAT EAVESDROPPING, IN BOTH
ITS ORIGINAL AND MODERN FORMS, IS NOT VIOLATIVE OF THE FOURTH
AMENDMENT. 

WHILE MY READING OF THE OLMSTEAD AND GOLDMAN CASES CONVINCES ME THAT
THEY WERE DECIDED ON THE BASIS OF THE INAPPLICABILITY OF THE WORDING OF
THE FOURTH AMENDMENT TO EAVESDROPPING, AND NOT ON ANY TRESPASS BASIS,
THIS IS NOT TO SAY THAT UNAUTHORIZED INTRUSION HAS NOT PLAYED AN
IMPORTANT ROLE IN SEARCH AND SEIZURE CASES.  THIS COURT HAS ADOPTED AN
EXCLUSIONARY RULE TO BAR EVIDENCE OBTAINED BY MEANS OF SUCH
INTRUSIONS.  AS I MADE CLEAR IN MY DISSENTING OPINION IN BERGER V. NEW
YORK, 388 U.S. 41, 76, I CONTINUE TO BELIEVE THAT THIS EXCLUSIONARY
RULE FORMULATED IN WEEKS V. UNITED STATES, 232 U.S. 383, RESTS ON THE
"SUPERVISORY POWER" OF THIS COURT OVER OTHER FEDERAL COURTS AND IS NOT
ROOTED IN THE FOURTH AMENDMENT.  SEE WOLF V. COLORADO, CONCURRING
OPINION, 338 U.S. 25, 39, AT 40.  SEE ALSO MAPP V. OHIO, CONCURRING
OPINION, 367 U.S. 643, 661-666.  THIS RULE HAS CAUSED THE COURT TO
REFUSE TO ACCEPT EVIDENCE WHERE THERE HAS BEEN SUCH AN INTRUSION
REGARDLESS OF WHETHER THERE HAS BEEN A SEARCH OR SEIZURE IN VIOLATION
OF THE FOURTH AMENDMENT.  AS THIS COURT SAID IN LOPEZ V. UNITED STATES,
373 U.S. 427, 438-439, "THE COURT HAS IN THE PAST SUSTAINED INSTANCES
OF 'ELECTRONIC EAVESDROPPING' AGAINST CONSTITUTIONAL CHALLENGE, WHEN
DEVICES HAVE BEEN USED TO ENABLE GOVERNMENT AGENTS TO OVERHEAR
CONVERSATIONS WHICH WOULD HAVE BEEN BEYOND THE REACH OF THE HUMAN EAR
(CITING OLMSTEAD AND GOLDMAN).  IT HAS BEEN INSISTED ONLY THAT THE
ELECTRONIC DEVICE NOT BE PLANTED BY AN UNLAWFUL PHYSICAL INVASION OF A
CONSTITUTIONALLY PROTECTED AREA.  SILVERMAN V. UNITED STATES." 

TO SUPPORT ITS NEW INTERPRETATION OF THE FOURTH AMENDMENT, WHICH IN
EFFECT AMOUNTS TO A REWRITING OF THE LANGUAGE, THE COURT'S OPINION
CONCLUDES THAT "THE UNDERPINNINGS OF OLMSTEAD AND GOLDMAN HAVE BEEN
...  ERODED BY OUR SUBSEQUENT DECISIONS  ...  ."  BUT THE ONLY CASES
CITED AS ACCOMPLISHING THIS "ERODING" ARE SILVERMAN V. UNITED STATES,
365 U.S. 505, AND WARDEN V. HAYDEN, 387 U.S. 294.  NEITHER OF THESE
CASES "ERODED" OLMSTEAD OR GOLDMAN.  SILVERMAN IS AN INTERESTING CHOICE
SINCE THERE THE COURT EXPRESSLY REFUSED TO RE-EXAMINE THE RATIONALE OF
OLMSTEAD OR GOLDMAN ALTHOUGH SUCH A RE-EXAMINATION WAS STRENUOUSLY
URGED UPON THE COURT BY THE PETITIONERS' COUNSEL.  ALSO IT IS
SIGNIFICANT THAT IN SILVERMAN, AS THE COURT DESCRIBED IT, "THE
EAVESDROPPING WAS ACCOMPLISHED BY MEANS OF AN UNAUTHORIZED PHYSICAL
PENETRATION INTO THE PREMISES OCCUPIED BY THE PETITIONERS," 365 U.S.,
AT 509, THUS CALLING INTO PLAY THE SUPERVISORY EXCLUSIONARY RULE OF
EVIDENCE.  AS I HAVE POINTED OUT ABOVE, WHERE THERE IS AN UNAUTHORIZED
INTRUSION, THIS COURT HAS REJECTED ADMISSION OF EVIDENCE OBTAINED
REGARDLESS OF WHETHER THERE HAS BEEN AN UNCONSTITUTIONAL SEARCH AND
SEIZURE.  THE MAJORITY'S DECISION HERE RELIES HEAVILY ON THE STATEMENT
IN THE OPINION THAT THE COURT "NEED NOT PAUSE TO CONSIDER WHETHER OR
NOT THERE WAS A TECHNICAL TRESPASS UNDER THE LOCAL PROPERTY LAW
RELATING TO PARTY WALLS."  (AT 511.)  YET THIS STATEMENT SHOULD NOT
BECLOUD THE FACT THAT TIME AND AGAIN THE OPINION EMPHASIZES THAT THERE
HAS BEEN AN UNAUTHORIZED INTRUSION:  "FOR A FAIR READING OF THE RECORD
IN THIS CASE SHOWS THAT THE EAVESDROPPING WAS ACCOMPLISHED BY MEANS OF
AN UNAUTHORIZED PHYSICAL PENETRATION INTO THE PREMISES OCCUPIED BY THE
PETITIONERS."  (AT 509.)  "EAVESDROPPING ACCOMPLISHED BY MEANS OF SUCH
A PHYSICAL INTRUSION IS BEYOND THE PALE OF EVEN THOSE DECISIONS  ... ."
(AT 509.)  "HERE  ...  THE OFFICERS OVERHEARD THE PETITIONERS'
CONVERSATIONS ONLY BY USURPING PART OF THE PETITIONER'S HOUSE OR OFFICE
...  ."  (AT 511.)  "DECISION HERE  ...  IS BASED UPON THE REALITY OF
AN ACTUAL INTRUSION  ...  ."  (AT 512.)  "WE FIND NO OCCASION TO RE
EXAMINE GOLDMAN HERE, BUT WE DECLINE TO GO BEYOND IT, BY EVEN A
FRACTION OF AN INCH."  (AT 512.)  AS IF THIS WERE NOT ENOUGH, JUSTICES
CLARK AND WHITTAKER CONCURRED WITH THE FOLLOWING STATEMENT:  "IN VIEW
OF THE DETERMINATION BY THE MAJORITY THAT THE UNAUTHORIZED PHYSICAL
PENETRATION INTO PETITIONERS' PREMISES CONSTITUTED SUFFICIENT TRESPASS
TO REMOVE THIS CASE FROM THE COVERAGE OF EARLIER DECISIONS, WE FEEL
OBLIGED TO JOIN IN THE COURT'S OPINION."  (AT 513.)  AS I MADE CLEAR IN
MY DISSENT IN BERGER, THE COURT IN SILVERMAN HELD THE EVIDENCE SHOULD
BE EXCLUDED BY VIRTUE OF THE EXCLUSIONARY RULE AND "I WOULD NOT HAVE
AGREED WITH THE COURT'S OPINION IN SILVERMAN  ...  HAD I THOUGHT THAT
THE RESULT DEPENDED ON FINDING A VIOLATION OF THE FOURTH AMENDMENT  ...
."  388 U.S., AT 79-80.  IN LIGHT OF THIS AND THE FACT THAT THE COURT
EXPRESSLY REFUSED TO RE-EXAMINE OLMSTEAD AND GOLDMAN, I CANNOT READ
SILVERMAN AS OVERTURNING THE INTERPRETATION STATED VERY PLAINLY IN
OLMSTEAD AND FOLLOWED IN GOLDMAN THAT EAVESDROPPING IS NOT COVERED BY
THE FOURTH AMENDMENT. 

THE OTHER "ERODING" CASE CITED IN THE COURT'S OPINION IS WARDEN V.
HAYDEN, 387 U.S. 294.  IT APPEARS THAT THIS CASE IS CITED FOR THE
PROPOSITION THAT THE FOURTH AMENDMENT APPLIES TO "INTANGIBLES," SUCH AS
CONVERSATION, AND THE FOLLOWING AMBIGUOUS STATEMENT IS QUOTED FROM THE
OPINION:  "THE PREMISE THAT PROPERTY INTERESTS CONTROL THE RIGHT OF THE
GOVERNMENT TO SEARCH AND SEIZE HAS BEEN DISCREDITED."  387 U.S., AT
304.  BUT FAR FROM BEING CONCERNED WITH EAVESDROPPING, WARDEN V. HAYDEN
UPHOLDS THE SEIZURE OF CLOTHES, CERTAINLY TANGIBLES BY ANY DEFINITION. 
THE DISCUSSION OF PROPERTY INTERESTS WAS INVOLVED ONLY WITH THE COMMON
LAW RULE THAT THE RIGHT TO SEIZE PROPERTY DEPENDED UPON PROOF OF A
SUPERIOR PROPERTY INTEREST. 

THUS, I THINK THAT ALTHOUGH THE COURT ATTEMPTS TO CONVEY THE
IMPRESSION THAT FOR SOME REASON TODAY OLMSTEAD AND GOLDMAN ARE NO
LONGER GOOD LAW, IT MUST FACE UP TO THE FACT THAT THESE CASES HAVE
NEVER BEEN OVERRULED OR EVEN "ERODED."  IT IS THE COURT'S OPINIONS IN
THIS CASE AND BERGER WHICH FOR THE FIRST TIME SINCE 1791, WHEN THE
FOURTH AMENDMENT WAS ADOPTED, HAVE DECLARED THAT EAVESDROPPING IS
SUBJECT TO FOURTH AMENDMENT RESTRICTIONS AND THAT CONVERSATIONS CAN BE
"SEIZED."*  I MUST ALIGN MYSELF WITH ALL THOSE JUDGES WHO UP TO THIS
YEAR HAVE NEVER BEEN ABLE TO IMPUTE SUCH A MEANING TO THE WORDS OF THE
AMENDMENT. 

*THE FIRST PARAGRAPH OF MY BROTHER HARLAN'S CONCURRING OPINION IS
SUSCEPTIBLE OF THE INTERPRETATION, ALTHOUGH PROBABLY NOT INTENDED, THAT
THIS COURT "HAS LONG HELD" EAVESDROPPING TO BE A VIOLATION OF THE
FOURTH AMENDMENT AND THEREFORE "PRESUMPTIVELY UNREASONABLE IN THE
ABSENCE OF A SEARCH WARRANT."  THERE IS NO REFERENCE TO ANY LONG LINE
OF CASES, BUT SIMPLY A CITATION TO SILVERMAN, AND SEVERAL CASES
FOLLOWING IT, TO ESTABLISH THIS HISTORICAL PROPOSITION.  IN THE FIRST
PLACE, AS I HAVE INDICATED IN THIS OPINION, I DO NOT READ SILVERMAN AS
HOLDING ANY SUCH THING; AND IN THE SECOND PLACE, SILVERMAN WAS DECIDED
IN 1961.  THUS, WHATEVER IT HELD, IT CANNOT BE SAID IT "HAS BEEN LONG
HELD."  I THINK MY BROTHER HARLAN RECOGNIZES THIS LATER IN HIS OPINION
WHEN HE ADMITS THAT THE COURT MUST NOW OVERRULE OLMSTEAD AND GOLDMAN. 
IN HAVING TO OVERRULE THESE CASES IN ORDER TO ESTABLISH THE HOLDING THE
COURT ADOPTS TODAY, IT BECOMES CLEAR THAT THE COURT IS PROMULGATING NEW
DOCTRINE INSTEAD OF MERELY FOLLOWING WHAT IT "HAS LONG HELD."  THIS IS
EMPHASIZED BY MY BROTHER HARLAN'S CLAIM THAT IT IS "BAD PHYSICS" TO
ADHERE TO GOLDMAN.  SUCH AN ASSERTION SIMPLY ILLUSTRATES THE PROPENSITY
OF SOME MEMBERS OF THE COURT TO RELY ON THEIR LIMITED UNDERSTANDING OF
MODERN SCIENTIFIC SUBJECTS IN ORDER TO FIT THE CONSTITUTION TO THE
TIMES AND GIVE ITS LANGUAGE A MEANING THAT IT WILL NOT TOLERATE. 

SINCE I SEE NO WAY IN WHICH THE WORDS OF THE FOURTH AMENDMENT CAN BE
CONSTRUED TO APPLY TO EAVESDROPPING, THAT CLOSES THE MATTER FOR ME.  IN
INTERPRETING THE BILL OF RIGHTS, I WILLINGLY GO AS FAR AS A LIBERAL
CONSTRUCTION OF THE LANGUAGE TAKES ME, BUT I SIMPLY CANNOT IN GOOD
CONSCIENCE GIVE A MEANING TO WORDS WHICH THEY HAVE NEVER BEFORE BEEN
THOUGHT TO HAVE AND WHICH THEY CERTAINLY DO NOT HAVE IN COMMON ORDINARY
USAGE.  I WILL NOT DISTORT THE WORDS OF THE AMENDMENT IN ORDER TO "KEEP
THE CONSTITUTION UP TO DATE" OR "TO BRING IT INTO HARMONY WITH THE
TIMES."  IT WAS NEVER MEANT THAT THIS COURT HAVE SUCH POWER, WHICH IN
EFFECT WOULD MAKE US A CONTINUOUSLY FUNCTIONING CONSTITUTIONAL
CONVENTION. 

WITH THIS DECISION THE COURT HAS COMPLETED, I HOPE, ITS REWRITING OF
THE FOURTH AMENDMENT, WHICH STARTED ONLY RECENTLY WHEN THE COURT BEGAN
REFERRING INCESSANTLY TO THE FOURTH AMENDMENT NOT SO MUCH AS A LAW
AGAINST UNREASONABLE SEARCHES AND SEIZURES AS ONE TO PROTECT AN
INDIVIDUAL'S PRIVACY.  BY CLEVER WORD JUGGLING THE COURT FINDS IT
PLAUSIBLE TO ARGUE THAT LANGUAGE AIMED SPECIFICALLY AT SEARCHES AND
SEIZURES OF THINGS THAT CAN BE SEARCHED AND SEIZED MAY, TO PROTECT
PRIVACY, BE APPLIED TO EAVESDROPPED EVIDENCE OF CONVERSATIONS THAT CAN
NEITHER BE SEARCHED NOR SEIZED.  FEW THINGS HAPPEN TO AN INDIVIDUAL
THAT DO NOT AFFECT HIS PRIVACY IN ONE WAY OR ANOTHER.  THUS, BY
ARBITRARILY SUBSTITUTING THE COURT'S LANGUAGE, DESIGNED TO PROTECT
PRIVACY, FOR THE CONSTITUTION'S LANGUAGE, DESIGNED TO PROTECT AGAINST
UNREASONABLE SEARCHES AND SEIZURES, THE COURT HAS MADE THE FOURTH
AMENDMENT ITS VEHICLE FOR HOLDING ALL LAWS VIOLATIVE OF THE
CONSTITUTION WHICH OFFEND THE COURT'S BROADEST CONCEPT OF PRIVACY.  AS
I SAID IN GRISWOLD V. CONNECTICUT, 381 U.S. 479, "THE COURT TALKS ABOUT
A CONSTITUTIONAL 'RIGHT OF PRIVACY' AS THOUGH THERE IS SOME
CONSTITUTIONAL PROVISION OR PROVISIONS FORBIDDING ANY LAW EVER TO BE
PASSED WHICH MIGHT ABRIDGE THE 'PRIVACY' OF INDIVIDUALS.  BUT THERE IS
NOT."  (DISSENTING OPINION, AT 508.)  I MADE CLEAR IN THAT DISSENT MY
FEAR OF THE DANGERS INVOLVED WHEN THIS COURT USES THE "BROAD, ABSTRACT
AND AMBIGUOUS CONCEPT" OF "PRIVACY" AS A "COMPREHENSIVE SUBSTITUTE FOR
THE FOURTH AMENDMENT'S GUARANTEE AGAINST 'UNREASONABLE SEARCHES AND
SEIZURES.'"  (SEE GENERALLY DISSENTING OPINION, AT 507-527.) 

THE FOURTH AMENDMENT PROTECTS PRIVACY ONLY TO THE EXTENT THAT IT
PROHIBITS UNREASONABLE SEARCHES AND SEIZURES OF "PERSONS, HOUSES,
PAPERS, AND EFFECTS."  NO GENERAL RIGHT IS CREATED BY THE AMENDMENT SO
AS TO GIVE THIS COURT THE UNLIMITED POWER TO HOLD UNCONSTITUTIONAL
EVERYTHING WHICH AFFECTS PRIVACY.  CERTAINLY THE FRAMERS, WELL
ACQUAINTED AS THEY WERE WITH THE EXCESSES OF GOVERNMENTAL POWER, DID
NOT INTEND TO GRANT THIS COURT SUCH OMNIPOTENT LAWMAKING AUTHORITY AS
THAT.  THE HISTORY OF GOVERNMENTS PROVES THAT IT IS DANGEROUS TO
FREEDOM TO REPOSE SUCH POWERS IN COURTS. 

FOR THESE REASONS I RESPECTFULLY DISSENT. 
..END :








NATIONAL LABOR RELATIONS BOARD V. FLEETWOOD TRAILER CO. 389 U.S. 375 


NO. 49.  ARGUED NOVEMBER 8, 1967.  - DECIDED DECEMBER 18, 1967.  - 366
F.2D 126, VACATED AND REMANDED. 


RESPONDENT, EMPLOYER, ON THE TERMINATION OF A STRIKE AGAINST IT BY
UNION MEMBERS, ANNOUNCED THAT IT COULD NOT THEN REINSTATE THE STRIKERS
BECAUSE OF PRODUCTION CURTAILMENT CAUSED BY THE STRIKE.  RESPONDENT
PLANNED TO RESUME FULL PRODUCTION AS SOON AS POSSIBLE.  TWO DAYS AFTER
THE STRIKE AND ON A NUMBER OF SUBSEQUENT OCCASIONS SIX STRIKERS APPLIED
FOR REINSTATEMENT BUT WERE REJECTED ON THE GROUND THAT NO JOBS WERE
AVAILABLE.  HOWEVER, ABOUT TWO MONTHS AFTER THE STRIKE RESPONDENT HIRED
SIX NEW EMPLOYEES FOR JOBS FOR WHICH THE STRIKER-APPLICANTS WERE
QUALIFIED.  THE SIX STRIKER-APPLICANTS, WHO WERE NOT REINSTATED UNTIL
ABOUT A MONTH LATER, FILED A COMPLAINT WITH THE NATIONAL LABOR
RELATIONS BOARD (NLRB) CHARGING UNFAIR LABOR PRACTICES WITHIN THE
MEANING OF SECS 8(A)(1) AND (3) OF THE NATIONAL LABOR RELATIONS ACT
BECAUSE OF INTERFERENCE WITH THE EXERCISE OF THE RIGHTS TO ORGANIZE AND
TO STRIKE GUARANTEED BY SECS 7 AND 13.  THE TRIAL EXAMINER, AFTER
HEARING, FOUND THAT THE JOB OPENINGS FILLED BY THE NEW APPLICANTS COULD
HAVE BEEN FILLED BY THE STRIKER-APPLICANTS AND MADE RECOMMENDATIONS,
WHICH THE NLRB ADOPTED, THAT RESPONDENT SHOULD REIMBURSE THE SIX
STRIKER-APPLICANTS FOR EARNINGS LOSSES ATTRIBUTABLE TO RESPONDENT'S
FAILURE TO REINSTATE THEM WHEN IT HIRED THE SIX NEW EMPLOYEES.  THE
COURT OF APPEALS DENIED THE NLRB'S ENFORCEMENT PETITION, HOLDING THAT
THE STRIKERS' RIGHT TO JOBS MUST BE JUDGED AS OF THE DATE WHEN THEY
FIRST APPLIED, WHEN THERE WERE NO JOBS AVAILABLE.  HELD: 

1.  RESPONDENT'S REFUSAL TO REINSTATE THE STRIKERS CONSTITUTED AN
UNFAIR LABOR PRACTICE UNDER THE ACT, SINCE RESPONDENT DID NOT SHOW THAT
ITS ACTION WAS DUE TO "LEGITIMATE AND SUBSTANTIAL BUSINESS
JUSTIFICATIONS."  NLRB V. GREAT DANE TRAILERS, 388 U.S. 26.  PP. 378
380. 

2.  THE RIGHT OF STRIKERS TO REINSTATEMENT DOES NOT DEPEND UPON JOB
AVAILABILITY WHEN THEY FIRST APPLY BUT CONTINUES UNTIL THEY HAVE
OBTAINED "OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT," SEC
2(3), AT LEAST WHERE, AS HERE, THEIR CONTINUED DESIRE FOR REINSTATEMENT
IS APPARENT.  PP. 380-381. 

NATIONAL LABOR RELATIONS BOARD V. FLEETWOOD TRAILER CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT IS A MANUFACTURER OF MOBILE HOMES.  ON AUGUST 5, 1964, IT
EMPLOYED ABOUT 110 PERSONS.  ON AUGUST 6, 1964, AS A RESULT OF A
BREAKDOWN IN COLLECTIVE BARGAINING NEGOTIATIONS BETWEEN RESPONDENT AND
THE UNION,  (FN1)  ABOUT HALF OF THE EMPLOYEES STRUCK.  RESPONDENT CUT
BACK ITS PRODUCTION SCHEDULE FROM THE PRESTRIKE FIGURE OF 20 UNITS TO
10 UNITS PER WEEK, AND CURTAILED ITS ORDERS FOR RAW MATERIALS
CORRESPONDINGLY.  ON AUGUST 18, THE UNION ACCEPTED THE RESPONDENT'S
LAST CONTRACT OFFER, TERMINATED THE STRIKE, AND REQUESTED REINSTATEMENT
OF THE STRIKERS. 

RESPONDENT EXPLAINED THAT IT COULD NOT REINSTATE THE STRIKERS "RIGHT
AT THAT MOMENT" BECAUSE OF THE CURTAILMENT OF PRODUCTION CAUSED BY THE
STRIKE.  THE EVIDENCE IS UNDISPUTED THAT IT WAS THE COMPANY'S INTENTION
"AT ALL TIMES" TO INCREASE PRODUCTION TO THE FULL PRESTRIKE VOLUME "AS
SOON AS POSSIBLE."  (FN2) 

THE SIX STRIKERS INVOLVED IN THIS CASE APPLIED FOR REINSTATEMENT ON
AUGUST 20 AND ON A NUMBER OF OCCASIONS THEREAFTER.  ON THAT DATE, NO
JOBS WERE AVAILABLE, AND THEIR APPLICATIONS WERE REJECTED.  HOWEVER,
BETWEEN OCTOBER 8 AND 16, THE COMPANY HIRED SIX NEW EMPLOYEES, WHO HAD
NOT PREVIOUSLY WORKED FOR IT, FOR JOBS WHICH THE STRIKER-APPLICANTS
WERE QUALIFIED TO FILL.  LATER, IN THE PERIOD FROM NOVEMBER 2 THROUGH
DECEMBER 14, THE SIX STRIKERS WERE REINSTATED. 

AN NLRB COMPLAINT WAS ISSUED UPON CHARGES FILED BY THE SIX
EMPLOYEES.  AS AMENDED, THE COMPLAINT CHARGED RESPONDENT WITH UNFAIR
LABOR PRACTICES WITHIN THE MEANING OF SECS 8(A)(1) AND (3) OF THE
NATIONAL LABOR RELATIONS ACT (61 STAT. 140, 29 U.S.C. SECS 158(A)(1)
AND (3)) BECAUSE OF THE HIRING OF NEW EMPLOYEES INSTEAD OF THE SIX
STRIKERS.  AFTER HEARING, THE TRIAL EXAMINER CONCLUDED THAT RESPONDENT
HAD DISCRIMINATED AGAINST THE STRIKERS BY FAILING TO ACCORD THEM THEIR
RIGHTS TO REINSTATEMENT AS EMPLOYEES IN OCTOBER WHEN RESPONDENT HIRED
OTHERS TO FILL THE AVAILABLE JOBS.  ACCORDINGLY, THE EXAMINER
RECOMMENDED THAT RESPONDENT SHOULD MAKE EACH OF THE SIX WHOLE FOR LOSS
OF EARNINGS DUE TO ITS FAILURE TO RETURN THEM TO EMPLOYMENT AT THE TIME
OF THE OCTOBER HIRINGS AND UNTIL THEY WERE RE-EMPLOYED.  A THREE-MEMBER
PANEL OF THE BOARD ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE TRIAL EXAMINER.  (FN3) 

THE BOARD FILED A PETITION FOR ENFORCEMENT OF THE ORDER.  THE COURT
OF APPEALS FOR THE NINTH CIRCUIT, ONE JUDGE DISSENTING, DENIED
ENFORCEMENT.  366 F.2D 126 (1966).  IT HELD THAT THE RIGHT OF THE
STRIKERS TO JOBS MUST BE JUDGED AS OF THE DATE WHEN THEY APPLY FOR
REINSTATEMENT.  SINCE THE SIX STRIKERS APPLIED FOR REINSTATEMENT ON
AUGUST 20, AND SINCE THERE WERE NO JOBS AVAILABLE ON THAT DATE, THE
COURT CONCLUDED THAT THE RESPONDENT HAD NOT COMMITTED AN UNFAIR LABOR
PRACTICE BY FAILING TO EMPLOY THEM.  WE GRANTED CERTIORARI ON PETITION
OF THE BOARD.  386 U.S. 990 (1967).  WE REVERSE. 

PROVIDES THAT AN INDIVIDUAL WHOSE WORK HAS CEASED AS A CONSEQUENCE OF A
LABOR DISPUTE CONTINUES TO BE AN EMPLOYEE IF HE HAS NOT OBTAINED
REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT.  IF, AFTER CONCLUSION
OF THE STRIKE, THE EMPLOYER REFUSES TO REINSTATE STRIKING EMPLOYEES,
THE EFFECT IS TO DISCOURAGE EMPLOYEES FROM EXERCISING THEIR RIGHTS TO
ORGANIZE AND TO STRIKE GUARANTEED BY SECS 7 AND 13 OF THE ACT (61 STAT.
140 AND 151, 29 U.S.C. SECS 157 AND 163).  UNDER SECS 8(A)(1) AND (3)
(29 U.S.C. SECS 158(1) AND (3)) IT IS AN UNFAIR LABOR PRACTICE TO
INTERFERE WITH THE EXERCISE OF THESE RIGHTS.  ACCORDINGLY, UNLESS THE
EMPLOYER WHO REFUSES TO REINSTATE STRIKERS CAN SHOW THAT HIS ACTION WAS
DUE TO "LEGITIMATE AND SUBSTANTIAL BUSINESS JUSTIFICATIONS," HE IS
GUILTY OF AN UNFAIR LABOR PRACTICE.  NLRB V. GREAT DANE TRAILERS, 388
U.S. 26, 34 (1967).  THE BURDEN OF PROVING JUSTIFICATION IS ON THE
EMPLOYER.  IBID.  IT IS THE PRIMARY RESPONSIBILITY OF THE BOARD AND NOT
OF THE COURTS "TO STRIKE THE PROPER BALANCE BETWEEN THE ASSERTED
BUSINESS JUSTIFICATIONS AND THE INVASION OF EMPLOYEE RIGHTS IN LIGHT OF
THE ACT AND ITS POLICY."  ID., AT 33-34.  SEE ALSO NLRB V. ERIE
RESISTOR CORP., 373 U.S. 221, 228-229, 235-236 (1963).  UNIVERSAL
CAMERA CORP. V. NLRB, 340 U.S. 474 (1951), IS NOT AN INVITATION TO
DISREGARD THIS RULE.  (FN4) 

IN SOME SITUATIONS, "LEGITIMATE AND SUBSTANTIAL BUSINESS
JUSTIFICATIONS" FOR REFUSING TO REINSTATE EMPLOYEES WHO ENGAGED IN AN
ECONOMIC STRIKE HAVE BEEN RECOGNIZED.  ONE IS WHEN THE JOBS CLAIMED BY
THE STRIKERS ARE OCCUPIED BY WORKERS HIRED AS PERMANENT REPLACEMENTS
DURING THE STRIKE IN ORDER TO CONTINUE OPERATIONS.  NLRB V. MACKAY
RADIO & TELEGRAPH CO., 304 U.S. 333, 345-346 (1938); NLRB V. PLASTILITE
CORP., 375 F.2D 343 (C.A. 8TH CIR. 1967); BROWN & ROOT, 132 N.L.R.B.
486 (1961).  (FN5) IN THE PRESENT CASE, RESPONDENT HIRED 21
REPLACEMENTS DURING THE STRIKE, COMPARED WITH ABOUT 55 STRIKERS; AND IT
IS CLEAR THAT THE JOBS OF THE SIX STRIKERS WERE AVAILABLE AFTER THE
STRIKE.  INDEED, THEY WERE FILLED BY NEW EMPLOYEES.  (FN6) 

A SECOND BASIS FOR JUSTIFICATION IS SUGGESTED BY THE BOARD - WHEN THE
STRIKER'S JOB HAS BEEN ELIMINATED FOR SUBSTANTIAL AND BONA FIDE REASONS
OTHER THAN CONSIDERATIONS RELATING TO LABOR RELATIONS:  FOR EXAMPLE,
"THE NEED TO ADAPT TO CHANGES IN BUSINESS CONDITIONS OR TO IMPROVE
EFFICIENCY."  (FN7)  WE NEED NOT CONSIDER THIS CLAIMED JUSTIFICATION
BECAUSE IN THE PRESENT CASE NO CHANGES IN METHODS OF PRODUCTION OR
OPERATION WERE SHOWN TO HAVE BEEN INSTITUTED WHICH MIGHT HAVE RESULTED
IN ELIMINATING THE STRIKERS' JOBS. 

THE COURT OF APPEALS EMPHASIZED IN THE PRESENT CASE THE ABSENCE OF
ANY ANTIUNION MOTIVATION FOR THE FAILURE TO REINSTATE THE SIX
STRIKERS.  BUT IN NLRB V. GREAT DANE TRAILERS, SUPRA, WHICH WAS DECIDED
AFTER THE COURT OF APPEALS' OPINION IN THE PRESENT CASE, WE HELD THAT
PROOF OF ANTIUNION MOTIVATION IS UNNECESSARY WHEN THE EMPLOYER'S
CONDUCT "COULD HAVE ADVERSELY AFFECTED EMPLOYEE RIGHTS TO SOME EXTENT"
AND WHEN THE EMPLOYER DOES NOT MEET HIS BURDEN OF ESTABLISHING "THAT HE
WAS MOTIVATED BY LEGITIMATE OBJECTIVES."  ID., AT 34.  GREAT DANE
TRAILERS DETERMINED THAT PAYMENT OF VACATION BENEFITS TO NONSTRIKERS
AND DENIAL OF THOSE PAYMENTS TO STRIKERS CARRIED "A POTENTIAL FOR
ADVERSE EFFECT UPON EMPLOYEE RIGHTS."  BECAUSE "NO EVIDENCE OF A PROPER
MOTIVATION APPEARED IN THE RECORD," WE AGREED WITH THE BOARD THAT THE
EMPLOYER HAD COMMITTED AN UNFAIR LABOR PRACTICE.  ID., AT 35.  A
REFUSAL TO REINSTATE STRIKING EMPLOYEES, WHICH IS INVOLVED IN THIS
CASE, IS CLEARLY NO LESS DESTRUCTIVE OF IMPORTANT EMPLOYEE RIGHTS THAN
A REFUSAL TO MAKE VACATION PAYMENTS.  AND BECAUSE THE EMPLOYER HERE HAS
NOT SHOWN "LEGITIMATE AND SUBSTANTIAL BUSINESS JUSTIFICATIONS," THE
CONDUCT CONSTITUTES AN UNFAIR LABOR PRACTICE WITHOUT REFERENCE TO
INTENT. 

THE COURT OF APPEALS, HOWEVER, HELD THAT THE RESPONDENT DID NOT
DISCRIMATE AGAINST THE STRIKING EMPLOYEES BECAUSE ON THE DATE WHEN THEY
APPLIED FOR WORK, TWO DAYS AFTER THE END OF THE STRIKE, RESPONDENT HAD
NO NEED FOR THEIR SERVICES.  BUT IT IS UNDISPUTED THAT THE EMPLOYEES
CONTINUED TO MAKE KNOWN THEIR AVAILABILITY AND DESIRE FOR
REINSTATEMENT, AND THAT "AT ALL TIMES" RESPONDENT INTENDED TO RESUME
FULL PRODUCTION TO REACTIVATE THE JOBS AND TO FILL THEM. 

IT WAS CLEARLY ERROR TO HOLD THAT THE RIGHT OF THE STRIKERS TO
REINSTATEMENT EXPIRED ON AUGUST 20, WHEN THEY FIRST APPLIED.  THIS
BASIC RIGHT TO JOBS CANNOT DEPEND UPON JOB AVAILABILITY AS OF THE
MOMENT WHEN THE APPLICATIONS ARE FILED.  THE RIGHT TO REINSTATEMENT
DOES NOT DEPEND UPON TECHNICALITIES RELATING TO APPLICATION.  ON THE
CONTRARY, THE STATUS OF THE STRIKER AS AN EMPLOYEE CONTINUES UNTIL HE
HAS OBTAINED "OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT." 
(29 U.S.C. SEC 152(3).)  FREQUENTLY A STRIKE AFFECTS THE LEVEL OF
PRODUCTION AND THE NUMBER OF JOBS.  IT IS ENTIRELY NORMAL FOR STRIKING
EMPLOYEES TO APPLY FOR REINSTATEMENT IMMEDIATELY AFTER THE END OF THE
STRIKE AND BEFORE FULL PRODUCTION IS RESUMED.  IF AND WHEN A JOB FOR
WHICH THE STRIKER IS QUALIFIED BECOMES AVAILABLE, HE IS ENTITLED TO AN
OFFER OF REINSTATEMENT.  THE RIGHT CAN BE DEFEATED ONLY IF THE EMPLOYER
CAN SHOW "LEGITIMATE AND SUBSTANTIAL BUSINESS JUSTIFICATIONS."  NLRB V.
GREAT DANE TRAILERS, SUPRA. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  (FN8)  IT IS SO ORDERED. 

FN1  THE UNION IS THE SAN BERNARDINO-RIVERSIDE COUNTIES DISTRICT
COUNCIL OF CARPENTERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO. 

FN2  RESPONDENT'S PRODUCTION PROGRAM WAS CONSISTENT WITH THIS
INTENTION.  DURING A PERIOD OF ABOUT 18 WEEKS AFTER THE STRIKE, THE
NUMBER OF UNITS SCHEDULED PER WEEK INCREASED IN A STEADY PROGRESSION
FROM 10 TO 12 TO 14 TO 16 TO 18 TO 19 AND, FINALLY, TO 20 FOR THE WEEK
ENDING DECEMBER 13, 1964. 

FN3  153 N.L.R.B. 425 (1965).  "THE BOARD IS AUTHORIZED TO DELEGATE
TO ANY GROUP OF THREE OR MORE MEMBERS ANY OR ALL OF THE POWERS WHICH IT
MAY ITSELF EXERCISE."  SECTION 3(B), 61 STAT. 139, 29 U.S.C. SEC
153(B). 

FN4  ALTHOUGH THE DECISION OF THE COURT OF APPEALS, AS WE READ IT,
RESULTED FROM ITS ERRONEOUS HOLDING THAT THE RIGHT OF THE STRIKERS TO
JOBS DEPENDS UPON THE DATE OF THEIR (FIRST) APPLICATION FOR
REINSTATEMENT, IT RECITED THAT THE BOARD'S GENERAL COUNSEL HAD FAILED
TO SHOW "THAT THE JOBS OF COMPLAINANTS HAD NOT BEEN ABSORBED OR THAT
THEY WERE STILL AVAILABLE."  SUCH PROOF IS NOT ESSENTIAL TO ESTABLISH
AN UNFAIR LABOR PRACTICE.  IT RELATES TO JUSTIFICATION, AND THE BURDEN
OF SUCH PROOF IS ON THE EMPLOYER.  NLRB V. GREAT DANE TRAILERS, SUPRA,
AT 34.  CF. ALSO NLRB V. PLASTILITE CORP., 375 F.2D 343, 348 (C.A. 8TH
CIR. 1967). 

FN5  UNFAIR LABOR PRACTICE STRIKERS ARE ORDINARILY ENTITLED TO
REINSTATEMENT EVEN IF THE EMPLOYER HAS HIRED PERMANENT REPLACEMENTS. 
SEE MASTRO PLASTICS CORP. V. NLRB, 350 U.S. 270, 278 (1956). 

FN6  THE TRIAL EXAMINER FOUND THAT "THE SIX JOB OPENINGS IN OCTOBER
COULD HAVE BEEN FILLED BY THE STRIKER APPLICANTS AND, HAD THE
RESPONDENT CONSIDERED THEM AS EMPLOYEES RATHER THAN AS MERE APPLICANTS
FOR HIRE, WOULD HAVE BEEN SO FILLED." 

FN7  BRIEF ON BEHALF OF NLRB 15. 

FN8  THE RESPONDENT CONTENDS THAT THE UNION AGREED TO A
NONPREFERENTIAL HIRING LIST AND THEREBY WAIVED THE RIGHTS OF THE
STRIKERS TO REINSTATEMENT AHEAD OF THE NEW APPLICANTS.  THE BOARD FOUND
THAT THE UNION, HAVING LOST THE STRIKE, MERELY "BOWED TO THE
RESPONDENT'S DECISION."  THE COURT OF APPEALS DID NOT RULE ON THIS
POINT OR ON THE EFFECT, IF ANY, THAT ITS RESOLUTION MIGHT HAVE UPON THE
OUTCOME OF THIS CASE.  UPON REMAND, THE ISSUE WILL BE OPEN FOR SUCH
CONSIDERATION AS MAY BE APPROPRIATE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING IN THE
RESULT. 

THE ISSUE IN THIS CASE SEEMS TO ME RATHER SIMPLER, AND THE INDICATED
RESOLUTION OF IT RATHER MORE OBVIOUS, THAN THE MAJORITY OPINION
IMPLIES.  A STRIKING WORKER REMAINS AN "EMPLOYEE" AT LEAST AS LONG AS
HIS JOB REMAINS UNFILLED AND HE HAS NOT FOUND OTHER EQUIVALENT WORK. 
(FN1)  CONSEQUENTLY, AS THE COURT OF APPEALS STATED IN THIS CASE, "IF
THEIR JOBS HAD NOT BEEN FILLED OR ELIMINATED DUE TO A DECREASE IN
PRODUCTION, THE STRIKERS WERE ENTITLED TO BE TREATED AS EMPLOYEES AND
TO BE GIVEN PREFERENCE OVER OTHER JOB APPLICANTS."  366 F.2D, AT 128. 

IN THE PRESENT CASE, FULL PRODUCTION WAS NOT RESUMED UNTIL TWO MONTHS
AFTER THE STRIKERS INDICATED THEIR WILLINGNESS TO RETURN TO WORK.  THE
ONLY QUESTION IS WHETHER THE SIX STRIKERS HERE INVOLVED WERE STILL AT
THAT POINT "EMPLOYEES" WHOM THE EMPLOYER HAD AN AFFIRMATIVE OBLIGATION
TO PREFER.  THE TRIAL EXAMINER, WHOSE DECISION WAS AFFIRMED BY THE
BOARD, CONCLUDED THAT THE STRIKERS WERE STILL EMPLOYEES BECAUSE THE
EMPLOYER HAD NEITHER ABOLISHED NOR FILLED THEIR JOBS BUT INTENDED AT
ALL TIMES TO RETURN TO FULL PRODUCTION "AS SOON AS PRACTICABLE."  (FN2)
THE COURT OF APPEALS FOUND THAT THE SIX HAD LOST THEIR EMPLOYEE STATUS
BECAUSE THEIR JOBS WERE UNAVAILABLE, BY REASON OF A PRODUCTION CUTBACK,
AT THE PRECISE AND EARLIER MOMENT WHEN THEY OFFERED TO RETURN TO WORK. 
YET IT SEEMS PALPABLY INCONSISTENT WITH THE STATUTORY PURPOSE IN
PRESERVING THE EMPLOYEEE STATUS OF STRIKERS TO HOLD THAT THE TEMPORARY
PRODUCTION ADJUSTMENT OCCASIONED BY THE STRIKE ITSELF IS THE EQUIVALENT
OF "PERMANENT REPLACEMENT" OR "JOB ABOLITION" AND DESTROYS THE RIGHT OF
A STRIKER TO PREFERENCE IN REHIRING.  I WOULD REVERSE THE COURT OF
APPEALS ON THE BASIS OF THE TRIAL EXAMINER'S CONCLUSION THAT THE
EMPLOYER'S ERROR WAS TO SEE THE STRIKERS "ONLY AS APPLICANTS FOR
EMPLOYMENT WHO WERE ENTITLED TO NO MORE THAN NONDISCRIMINATORY
CONSIDERATION FOR JOB OPENINGS.  BUT THEY HAD A DIFFERENT STANDING -
THEY WERE EMPLOYEES."  153 N.L.R.B., AT 428.    THE PROBLEMS OF
"EMPLOYER MOTIVATION" AND "LEGITIMATE BUSINESS JUSTIFICATION" ARE NOT,
ON THIS VIEW, INVOLVED IN THIS CASE AT ALL.  THE EMPLOYER'S OBLIGATION
WAS NOT SIMPLY TO BE NEUTRAL BETWEEN STRIKERS AND NONSTRIKERS, OR
BETWEEN UNION AND NONUNION PERSONNEL, AN OBLIGATION THAT MAY GIVE RISE
TO QUESTIONS CONCERNING AN EMPLOYER'S REASONS, GOOD OR BAD, FOR MAKING
EMPLOYMENT DECISIONS.  THIS EMPLOYER SIMPLY FAILED, FOR WHATEVER
REASONS, TO RECOGNIZE THE STATUS GIVEN THE SIX STRIKERS BY THE ACT, AND
ITS CORRESPONDING OBLIGATION TO THEM.  IT DID NOT ASSERT IN THIS COURT
ANY "LEGITIMATE BUSINESS JUSTIFICATION" WHATEVER FOR REFUSING TO REHIRE
THE SIX STRIKERS IN OCTOBER; IT CLAIMED ONLY THAT IT DID NOT NEED A
REASON.  SINCE THIS CLAIM WAS SIMPLY WRONG, NO QUESTION OF "MOTIVATION"
OR "JUSTIFICATION" NEED BE REACHED HERE. 

ON THIS BASIS I CONCUR IN THE JUDGMENT OF THE COURT. 

FN1  SECTION 2(3) OF THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 137,
29 U.S.C. SEC 152(3), READS IN PART AS FOLLOWS: 

"THE TERM 'EMPLOYEE'  ...  SHALL INCLUDE ANY INDIVIDUAL WHOSE WORK
HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY CURRENT
LABOR DISPUTE OR BECAUSE OF ANY UNFAIR LABOR PRACTICE, AND WHO HAS NOT
OBTAINED ANY OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT  ...
." 

FN2  NOTHING IN THE RECORD SUGGESTS THAT THE EMPLOYER BELIEVED, OR
HAD REASON TO BELIEVE, THAT THE SIX EMPLOYEES' OFFERS TO RETURN TO WORK
HAD BEEN REVOKED BY OCTOBER. 
..END :



















CASE-SWAYNE CO. V. SUNKIST GROWERS 389 U.S. 384 


NO. 66.  ARGUED OCTOBER 18-19, 1967.  - DECIDED DECEMBER 18, 1967.  -
369 F.2D 449, REVERSED AND REMANDED. 


PETITIONER BROUGHT A TREBLE-DAMAGE CLAYTON ACT SUIT FOR ALLEGED
VIOLATIONS BY RESPONDENT OF SECS 1 AND 2 OF THE SHERMAN ACT.  THE
DISTRICT COURT GRANTED A DIRECTED VERDICT FOR RESPONDENT.  THE COURT OF
APPEALS REVERSED AS TO THE SEC 2 COMPLAINT BUT AFFIRMED THE DISMISSAL
OF THE SEC 1 CHARGE, HOLDING THAT SUNKIST QUALIFIED AS A COOPERATIVE
ORGANIZATION UNDER THE CAPPER-VOLSTEAD ACT AND THUS COULD NOT BE HELD
FOR AN INTRAORGANIZATION CONSPIRACY TO RESTRAIN TRADE.  SECTION 1 OF
THAT ACT PRIVILEGES COLLECTIVE ACTIVITY IN PROCESSING AND MARKETING FOR
"PERSONS ENGAGED IN THE PRODUCTION OF AGRICULTURAL PRODUCTS AS FARMERS,
PLANTERS, RANCHMEN, DAIRYMEN, NUT OR FRUIT GROWERS  ...  ."  SUNKIST,
WHICH CONTROLS APPROXIMATELY 70% OF THE ORANGES GROWN IN CALIFORNIA AND
ARIZONA, AND APPROXIMATELY 67% OF THE "PRODUCT" ORANGES (USED FOR
PROCESSING), IS COMPOSED OF ABOUT 12,000 CITRUS GROWERS, WHO ARE
ORGANIZED INTO 160 LOCAL ASSOCIATIONS, OF WHICH 80% ARE COOPERATIVE
ASSOCIATIONS IN WHICH ALL MEMBERS ARE GROWERS.  HOWEVER, ABOUT 15% OF
THE LOCAL ASSOCIATIONS, CALLED "AGENCY ASSOCIATIONS," ARE PRIVATE
CORPORATIONS OR PARTNERSHIPS OWNING AND OPERATING PACKING HOUSES FOR
PROFIT.  THEY HAVE MARKETING CONTRACTS WITH GROWERS TO HANDLE FRUIT FOR
COST PLUS A FIXED FEE.  ALL THE LOCAL ASSOCIATIONS PARTICIPATE IN THE
CONTROL AND POLICY MAKING OF SUNKIST.  HELD:  RESPONDENT IS NOT
ENTITLED TO ASSERT THE CAPPER-VOLSTEAD ACT AS A DEFENSE TO THE SUIT
BASED ON SEC 1 OF THE SHERMAN ACT, AS IT WAS NOT THE INTENTION OF
CONGRESS TO ALLOW AN ORGANIZATION WITH SUCH NONPRODUCER INTERESTS TO
AVAIL ITSELF OF THE EXEMPTION PROVIDED BY THAT ACT.  PP. 390-396. 

CASE-SWAYNE CO., INC. V. SUNKIST GROWERS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THIS IS A TREBLE-DAMAGE ACTION UNDER SEC 4 OF THE CLAYTON ACT, 38
STAT. 731, 15 U.S.C.  SEC 15, FOR ALLEGED VIOLATIONS OF BOTH SEC 1 AND
SEC 2 OF THE SHERMAN ACT, 26 STAT.  209, AS AMENDED, 15 U.S.C. SECS 1,
2.  THE DISTRICT COURT GRANTED A DIRECTED VERDICT, AT THE CLOSE OF
PLAINTIFF'S CASE, FOR THE DEFENDANT, SUNKIST GROWERS, INC. THE COURT OF
APPEALS FOR THE NINTH CIRCUIT REVERSED AS TO THAT PORTION OF THE
COMPLAINT PREDICATED ON SEC 2 OF THE SHERMAN ACT, HOLDING THAT
SUFFICIENT EVIDENCE WAS PRESENTED THAT SUNKIST MONOPOLIZED OR ATTEMPTED
TO MONOPOLIZE TRADE IN THE RELEVANT MARKET; (FN1)  IT AFFIRMED AS TO
THE DISMISSAL OF THE SHERMAN ACT SEC 1 CHARGE, HOLDING THAT SUNKIST
QUALIFIED AS A COOPERATIVE ORGANIZATION UNDER THE CAPPER-VOLSTEAD ACT,
42 STAT. 388, 7 U.S.C. SEC 291,  (FN2)  AND THEREFORE COULD NOT BE HELD
FOR ANY INTRAORGANIZATIONAL CONSPIRACY TO RESTRAIN TRADE.  IN ORDER TO
DETERMINE THE SCOPE OF THAT EXEMPTION FROM THE ANTITRUST LAWS, WE
GRANTED CERTIORARI.  387 U.S. 903 (1967). 

THE ISSUE IS WHETHER SUNKIST IS AN ASSOCIATION OF "PERSONS ENGAGED IN
THE PRODUCTION OF AGRICULTURAL PRODUCTS AS  ...  FRUIT GROWERS" WITHIN
THE MEANING OF THE CAPPER-VOLSTEAD ACT, NOTWITHSTANDING THAT CERTAIN OF
ITS MEMBERS ARE NOT ACTUALLY GROWERS.  WE HOLD THAT IT IS NOT. 

     I. 

THE ORGANIZATIONAL STRUCTURE OF THE SUNKIST SYSTEM IS AS FOLLOWS.  AT
THE BASE ARE SOME 12,000 GROWERS OF CITRUS FRUIT IN ARIZONA AND
CALIFORNIA.  THE GROWERS ARE ORGANIZED INTO "LOCAL ASSOCIATIONS," AS
THEY ARE DESIGNATED IN SUNKIST'S BYLAWS, NUMBERING APPROXIMATELY 160,
EACH OF WHICH OPERATES A PACKING HOUSE FOR THE PREPARATION OF THE FRUIT
FOR MARKET.  THE VAST MAJORITY OF THESE LOCAL ASSOCIATIONS - ABOUT 80%
BY NUMBER AND 82% BY VOLUME OF FRUIT MARKETED IN THE SUNKIST SYSTEM -
ARE, IT IS STIPULATED, COOPERATIVE ASSOCIATIONS IN WHICH ALL MEMBERS
ARE FRUIT GROWERS.  (FN3)  A FEW OF THE LOCAL ASSOCIATIONS - NO MORE
THAN 5% BY NUMBER AND VOLUME OF FRUIT - ARE CORPORATE GROWERS WHOSE
TOTAL VOLUME IS SUFFICIENT TO JUSTIFY INSTALLATION OF THEIR OWN PACKING
HOUSE FACILITIES. 

THE REMAINDER OF THE LOCAL ASSOCIATIONS (ALSO DESIGNATED AS "AGENCY
ASSOCIATIONS") - ABOUT 15% BY NUMBER HANDLING ABOUT 13% OF THE FRUIT IN
THE SUNKIST SYSTEM - ARE PRIVATE CORPORATIONS AND PARTNERSHIPS, OWNING
AND OPERATING PACKING HOUSES FOR PROFIT.  THEIR RELATIONSHIP TO THE
GROWERS WHOSE FRUIT THEY HANDLE IS DEFINED NOT BY A COOPERATIVE
AGREEMENT BUT BY A MARKETING CONTRACT, I.E., THESE PACKING HOUSES
CONTRACT WITH EACH GROWER TO HANDLE HIS FRUIT FOR COST PLUS A FIXED
FEE.  IT IS THE MEMBERSHIP OF THESE AGENCY ASSOCIATIONS IN THE SUNKIST
SYSTEM THAT GIVES RISE TO THE ISSUE PRESENTED HERE. 

THE LOCAL ASSOCIATIONS, INCLUDING THESE PRIVATE PACKING HOUSES, ARE
MEMBERS OF "DISTRICT EXCHANGES," NONPROFIT MEMBERSHIP CORPORATIONS. 
THE PRINCIPAL FUNCTIONS OF THE APPROXIMATELY THREESCORE DISTRICT
EXCHANGES ARE IN THE MARKETING OF THE FRESH FRUIT OF THEIR MEMBER
ASSOCIATIONS; THEY NEGOTIATE SALES, ARRANGE FOR SHIPMENT, AND SERVE AS
CONDUITS OF COMMUNICATION BETWEEN THE LOCAL ASSOCIATIONS AND SUNKIST. 
REPRESENTATIVES OF THE DISTRICT EXCHANGES SELECT THE BOARD OF DIRECTORS
OF SUNKIST. 

SUNKIST ITSELF, SINCE 1958,  (FN4)  HAS TWO CLASSES OF "MEMBERS":
THE DISTRICT EXCHANGES, WHOSE PRINCIPAL MEMBERSHIP FUNCTION IS TO
SELECT THE BOARD OF DIRECTORS, AND THE LOCAL ASSOCIATIONS, WHICH VOTE
ON ALL OTHER MATTERS AND WHICH HAVE THE PROPRIETARY OWNERSHIP OF
SUNKIST'S ASSETS.  THE CORPORATE ENTITY SUNKIST GROWERS, INC., OWNS THE
TRADE NAME "SUNKIST" UNDER WHICH THE FRUIT OF ITS MEMBERS IS MARKETED. 
IT HAS AN EXTENSIVE SALES ORGANIZATION; EMPLOYS MARKETING AND TRAFFIC
SPECIALISTS; AND PERFORMS MANY OTHER SERVICES FOR ITS MEMBERS THROUGH,
FOR EXAMPLE, ITS RESEARCH FACILITIES. 

MORE PARTICULARLY, SUNKIST OWNS PROCESSING FACILITIES FOR WHAT IS
KNOWN AS "PRODUCT" FRUIT, I.E., FRUIT THAT FOR VARIOUS REASONS IS NOT
SOLD IN THE FRESH FRUIT MARKET, BUT RATHER IS USED FOR PROCESSED FRUIT
PRODUCTS SUCH AS CANNED OR CONCENTRATED JUICES. 

SUNKIST CONTROLS APPROXIMATELY 70% OF THE ORANGES GROWN IN CALIFORNIA
AND ARIZONA, AND APPROXIMATELY 67% OF THE PRODUCT ORANGES.  THIS
CONTROL IS MANIFESTED THROUGH VARIOUS CONTRACTUAL AGREEMENTS.  FOR
EXAMPLE, EACH GROWER IN THE COOPERATIVE LOCAL ASSOCIATIONS AGREES THAT
HE WILL MARKET ALL OF HIS FRUIT THROUGH HIS ASSOCIATION.  EACH GROWER
WHO CONTRACTS WITH AN AGENCY ASSOCIATION PACKING HOUSE APPOINTS IT AS
THE MARKETING AGENT FOR ALL OF HIS FRUIT.  THAT AGREEMENT IS GENERALLY
FOR FIVE SHIPPING SEASONS, ALTHOUGH IT MAY BE CANCELED AT ANY TIME "BY
MUTUAL CONSENT" OR ON WRITTEN NOTICE BY THE GROWER DURING AUGUST OF ANY
YEAR IN WHICH IT IS IN FORCE.  AN ESCAPE CLAUSE PERMITS THE GROWER TO
SELL SUCH FRUIT AS MAY BE "MUTUALLY AGREED UPON" BETWEEN HIM AND THE
PACKING HOUSE TO OTHERS, IF HE CAN OBTAIN A PRICE HIGHER, IN THE
JUDGMENT OF THE PACKING HOUSE, THAN THAT WHICH THE GROWER WOULD OBTAIN
THROUGH HIS AGREEMENT WITH IT.  SHOULD THE GROWER BE SO RELEASED FROM
HIS AGREEMENT, HE IS TO PAY TO THE PACKING HOUSE $2.50 PER TON OF FRUIT
RELEASED. 

EACH OF THE LOCAL ASSOCIATIONS, INCLUDING THE PRIVATE PACKING HOUSE
AGENCY ASSOCIATIONS, CONTRACTS WITH ITS DISTRICT EXCHANGE AND WITH
SUNKIST GROWERS, INC., TO MARKET ALL OF ITS FRUIT - PRODUCT AND FRESH -
IN THE SUNKIST SYSTEM.  EACH ASSOCIATION, UNDER THE SUNKIST-DISTRICT
EXCHANGE-ASSOCIATION AGREEMENT, RESERVES THE RIGHT TO DECIDE TO WHAT
MARKET IT WILL SHIP AND WHAT PRICE IT IS WILLING TO RECEIVE FOR ITS
FRUIT; HOWEVER, SUNKIST MAY DECIDE TO POOL PRODUCT FRUIT AND FRUIT FOR
EXPORT, IN WHICH EVENT THAT FRUIT IS HANDLED SOLELY IN SUNKIST'S
DISCRETION.  SUNKIST ALSO DETERMINES "THE MAXIMUM AMOUNT OF FRESH FRUIT
TO BE MARKETED CURRENTLY," AND ALLOCATES THE "OPPORTUNITY TO SHIP
EQUITABLY AMONG LOCAL ASSOCIATIONS."  EACH LOCAL ASSOCIATION AGREES NOT
TO RELEASE ANY OF ITS GROWERS FROM THE MARKETING CONTRACT WITHOUT
NOTIFYING ITS DISTRICT EXCHANGE AND SUNKIST, AND MUST OBTAIN THE
APPROVAL OF BOTH IF RELEASES TOTAL MORE THAN 5% OF THE VOLUME OF THE
PARTICULAR VARIETY OF FRUIT HANDLED BY THE ASSOCIATION.  FURTHER, EACH
DISTRICT EXCHANGE AND LOCAL ASSOCIATION AGREES THAT "ALL PRICES,
QUOTATIONS AND ALLOWANCES SHALL BE ISSUED AND DISTRIBUTED SOLELY BY
SUNKIST." 

PETITIONER CASE-SWAYNE MANUFACTURES SINGLE-STRENGTH ORANGE JUICE AND
OTHER BLENDED ORANGE JUICES.  IN ITS COMPLAINT, INSOFAR AS RELEVANT TO
THE ISSUES HERE, PETITIONER CHARGED THAT THE SUNKIST SYSTEM WAS A
CONSPIRACY IN RESTRAINT OF TRADE IN VOLATION OF SEC 1 OF THE SHERMAN
ACT, THE EFFECT OF WHICH WAS TO LIMIT SHARPLY THE SUPPLY OF PRODUCT
CITRUS FRUIT AVAILABLE TO PETITIONER DURING THE PERIOD COVERED BY THE
COMPLAINT. 

                                       II. 

COLLECTIVE ACTIVITY IN PROCESSING AND MARKETING ON THE PART OF "PERSONS
ENGAGED IN THE PRODUCTION OF AGRICULTURAL PRODUCTS AS FARMERS,
PLANTERS, RANCHMEN, DAIRYMEN, NUT OR FRUIT GROWERS  ...  ."  42 STAT.
388, 7 U.S.C. SEC 291.  DESPITE THAT SPECIFIC LANGUAGE, SUNKIST ARGUES
THAT CONGRESS, IN ENACTING THE MEASURE, INTENDED TO GIVE SANCTION TO
ANY ORGANIZATIONAL FORM BY WHICH THE BENEFITS OF COLLECTIVE MARKETING
INURED TO THE GROWER; AND THAT, BECAUSE THE AGENCY PACKING HOUSES, BY
CHARGING COST PLUS A FIXED FEE  (FN5)  FOR THEIR SERVICES, DO NOT
PARTICIPATE DIRECTLY IN THE GAIN OR LOSS INVOLVED IN THE COLLECTIVE
MARKETING OF FRUIT THROUGH THE SUNKIST SYSTEM, THEY ARE IN THE SUNKIST
SYSTEM A PRIVILEGED FORM OF ORGANIZATION FOR THE GROWERS WHO CONTRACT
WITH THEM.  (FN6)  WE THINK THAT ARGUMENT MISCONCEIVES THE REQUIREMENTS
OF THE ACT AND RUNS COUNTER TO THE RELEVANT LEGISLATIVE HISTORY. 

CONGRESS ENACTED SEC 6 OF THE CLAYTON ACT IN RESPONSE TO THE URGINGS
OF THOSE WHO FELT THE SHERMAN ACT'S PROHIBITION AGAINST COMBINATION IN
RESTRAINT OF TRADE MIGHT BE APPLIED TO IMPERIL THE DEVELOPMENT OF
COOPERATIVE ENDEAVORS, PRINCIPALLY UNIONS.  (FN7)  THAT SECTION
PROVIDED THAT THE ANTITRUST LAWS WERE NOT TO BE "CONSTRUED TO FORBID
THE EXISTENCE AND OPERATION OF LABOR, AGRICULTURAL, OR HORTICULTURAL
ORGANIZATIONS, INSTITUTED FOR THE PURPOSES OF MUTUAL HELP, AND NOT
HAVING CAPITAL STOCK OR CONDUCTED FOR PROFIT," I.E., SUCH ORGANIZATIONS
WERE NOT TO BE DEEMED "ILLEGAL COMBINATIONS OR CONSPIRACIES IN
RESTRAINT OF TRADE  ...  ."  38 STAT. 731, 15 U.S.C. SEC 17.  FROM THE
STANDPOINT OF AGRICULTURAL COOPERATIVES, THE PRINCIPAL DEFECT IN THAT
EXEMPTION WAS THAT IT APPLIED ONLY TO NONSTOCK ORGANIZATIONS.  THE
CAPPER-VOLSTEAD ACT WAS INTENDED TO CLARIFY THE EXEMPTION FOR
AGRICULTURAL ORGANIZATIONS AND TO EXTEND IT TO COOPERATIVES HAVING
CAPITAL STOCK.  (FN8) 

THE REPORTS ON BOTH H.R. 13931, THE PREDECESSOR BILL THAT FAILED OF
PASSAGE, AND H.R. 2373, WHICH BECAME THE CAPPER-VOLSTEAD ACT, STATE: 

"SECTION 1 DEFINES AND LIMITS THE KIND OF ASSOCIATIONS TO WHICH THE
LEGISLATION APPLIES.  THESE LIMITATIONS ARE AIMED TO EXCLUDE FROM THE
BENEFITS OF THIS LEGISLATION ALL BUT ACTUAL FARMERS AND ALL
ASSOCIATIONS NOT OPERATED FOR THE MUTUAL HELP OF THEIR MEMBERS AS SUCH
PRODUCERS."  H.R. REP. NO. 24, 67TH CONG., 1ST SESS., 1 (1921); H.R.
REP. NO. 939, 66TH CONG., 2D SESS., 1 (1920). 

THAT IT WAS INTENDED THAT ONLY ACTUAL PRODUCERS OF AGRICULTURAL
PRODUCTS BE COVERED BY THE LEGISLATION IS DEMONSTRATED IN THE DEBATES
ON THE TWO BILLS, E.G., THE FOLLOWING EXCHANGE INVOLVING SENATOR
KELLOGG, A PRINCIPAL SPONSOR OF THE MEASURE: 

"MR. CUMMINS.  ...  ARE THE WORDS 'AS FARMERS, PLANTERS, RANCHMEN,
DAIRYMEN, NUT OR FRUIT GROWERS' USED TO EXCLUDE ALL OTHERS WHO MAY BE
ENGAGED IN THE PRODUCTION OF AGRICULTURAL PRODUCTS, OR ARE THOSE WORDS
MERELY DESCRIPTIVE OF THE GENERAL SUBJECT? 

"MR. KELLOGG.  I THINK THEY ARE DESCRIPTIVE OF THE GENERAL SUBJECT. 
I THINK 'FARMERS' WOULD HAVE COVERED THEM ALL. 

"MR. CUMMINS.  I THINK THE SENATOR DOES NOT EXACTLY CATCH MY POINT. 
TAKE THE FLOURING MILLS OF MINNEAPOLIS:  THEY ARE ENGAGED, IN A BROAD
SENSE, IN THE PRODUCTION OF AN AGRICULTURAL PRODUCT.  THE PACKERS ARE
ENGAGED, IN A BROAD SENSE, IN THE PRODUCTION OF AN AGRICULTURAL
PRODUCT.  THE SENATOR DOES NOT INTEND BY THIS BILL TO CONFER UPON THEM
THE PRIVILEGES WHICH THE BILL GRANTS, I ASSUME? 

"MR. KELLOGG.  CERTAINLY NOT; AND I DO NOT THINK A PROPER
CONSTRUCTION OF THE BILL GRANTS THEM ANY SUCH PRIVILEGES.  THE BILL
COVERS FARMERS, PEOPLE WHO PRODUCE FARM PRODUCTS OF ALL KINDS, AND OUT
OF PRECAUTION THE DESCRIPTIVE WORDS WERE ADDED. 

"MR. TOWNSEND.  THEY MUST BE PERSONS WHO PRODUCE THESE THINGS. 

"MR. KELLOGG.  YES; THAT HAS ALWAYS BEEN THE UNDERSTANDING."  (FN9) 

TO BE SURE, A PRINCIPAL CONCERN OF CONGRESS WAS TO PROHIBIT THE
PARTICIPATION IN THE COLLECTIVITY OF THE PREDATORY MIDDLEMAN, THE
SPECULATOR WHO BOUGHT CROPS IN THE FIELD AND RETURNED BUT A SMALL
PERCENTAGE OF THEIR EVENTUAL WORTH TO THE GROWER.  SUNKIST FOCUSES ON
THE EXPRESSION OF THAT CONCERN, URGING THAT THE AGENCY ASSOCIATIONS ARE
NOT SUCH PREDATORY MIDDLEMEN.  THAT FOCUS IS WIDE OF THE MARK.  WE DEAL
HERE WITH "SPECIAL EXCEPTIONS TO A GENERAL LEGISLATIVE PLAN," ALLEN
BRADLEY CO. V. LOCAL NO. 3, 325 U.S. 797, 809 (1945) (SEC 6 OF THE
CLAYTON ACT), AND THEREFORE WE ARE NOT JUSTIFIED IN EXPANDING THE ACT'S
COVERAGE, WHICH OTHERWISE APPEARS QUITE PLAIN.  THE ACT STATES THOSE
WHOSE COLLECTIVE ACTIVITY IS PRIVILEGED UNDER IT; THAT ENUMERATION IS
LIMITED IN QUITE SPECIFIC TERMS TO PRODUCERS OF AGRICULTURAL PRODUCTS. 
(FN10) 

NOR DOES THE PROVISO IN SEC 1 - "THAT SUCH ASSOCIATIONS ARE OPERATED
FOR THE MUTUAL BENEFIT OF THE MEMBERS THEREOF" - BROADEN THE EARLIER
LANGUAGE.  THAT PROVISION, IN CONJUNCTION WITH THE OTHER PREREQUISITES
FOR QUALIFICATION UNDER THE ACT - EITHER THAT EACH MEMBER BE LIMITED TO
ONE VOTE WITHOUT REGARD TO THE CAPITAL HE FURNISHED OR THAT DIVIDENDS
ON CAPITAL BE LIMITED TO 8%, AND THAT DEALINGS IN PRODUCTS OF
NONMEMBERS BE LIMITED - WAS DESIGNED TO INSURE THAT QUALIFYING
ASSOCIATIONS BE TRULY ORGANIZED AND CONTROLLED BY, AND FOR, PRODUCERS. 
IN SHORT, CONGRESS WAS AWARE THAT EVEN ORGANIZATIONS OF PRODUCERS COULD
SERVE A PURPOSE OTHER THAN THE MUTUAL OBTAINING OF A FAIR RETURN TO
THEIR MEMBERS, AS PRODUCERS, OR BE CONTROLLED BY PERSONS OTHER THAN
PRODUCERS, AND THE PROVISO ADDS A MEASURE OF INSURANCE THAT SUCH
ORGANIZATIONS DO NOT GAIN THE ACT'S BENEFITS.  (FN11)  MOREOVER,
VIRTUALLY THE ONLY MENTION IN THE LEGISLATIVE HISTORY OF POSSIBLE
PARTICIPATION IN A CAPPER-VOLSTEAD COOPERATIVE BY NONPRODUCERS OCCURS
WITH RESPECT TO COOPERATIVES ISSUING CAPITAL STOCK.  (FN12) WHATEVER
MAY BE THE EFFECT AND SIGNIFICANCE OF THAT RECOGNITION OF THE FINANCIAL
STAKE OF NONPRODUCERS IN AN OTHERWISE SOLELY PRODUCER ORGANIZATION,
THEIR PARTICIPATION AND ROLE BEING NARROWLY RESTRICTED BY THE VOTING
AND DIVIDEND PREREQUISITES OF THE ACT, THEY ARE UNPERSUASIVE HERE. 
CAPITAL PARTICIPATION BY NONPRODUCERS - AND THAT IS THE EXTENT TO WHICH
THE DEBATES CAN FAIRLY BE READ AS CONTEMPLATING THEIR PARTICIPATION AT
ALL  (FN13)  - DOES NOT DIRECTLY ENLARGE THE MARKET SHARE ALREADY
POSSESSED BY THE PRODUCERS THEMSELVES.  THE PARTICIPATION IN SUNKIST OF
THE AGENCY ASSOCIATIONS HAS PRECISELY THAT EFFECT.    SUNKIST SUGGESTS
THAT "MEMBERSHIP" OF THE AGENCY ASSOCIATIONS HAS NO "ECONOMIC
SIGNIFICANCE," RELYING ON THAT PROVISION OF THE CAPPER-VOLSTEAD ACT
PERMITTING AN ASSOCIATION TO DEAL IN THE PRODUCTS OF NONMEMBERS.  THE
ARGUMENT IS THAT IF THE AGENCY PACKING HOUSES WERE NOT MEMBERS OF THE
SUNKIST SYSTEM, SUNKIST WOULD STILL BE FREE TO HANDLE THEIR PRODUCTS. 
BUT THIS COURT HAS HELD THAT THE ANTITRUST IMPLICATIONS OF THE
RELATIONSHIP BETWEEN A COOPERATIVE ASSOCIATION AND OTHERS IS GOVERNED
BY ENTIRELY DIFFERENT STANDARDS.  "THE RIGHT OF  ...  AGRICULTURAL
PRODUCERS THUS TO UNITE (UNDER THE ACT)  ...  CANNOT BE DEEMED TO
AUTHORIZE ANY COMBINATION OR CONSPIRACY WITH OTHER PERSONS IN RESTRAINT
OF TRADE THAT THESE PRODUCERS MAY SEE FIT TO DEVISE."  UNITED STATES V.
BORDEN CO., 308 U.S. 188, 204-205 (1939); ACCORD, MARYLAND & VIRGINIA
MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458, 466-467 (1960). 
MOREOVER, THE AGENCY ASSOCIATIONS PARTICIPATE IN THE CONTROL AND POLICY
MAKING OF SUNKIST, EVEN THOUGH THEY MAY BE PRIVATE PROFIT-MAKING
OPERATIONS.  (FN14)  WE THINK CONGRESS DID NOT INTEND TO ALLOW AN
ORGANIZATION WITH SUCH NONPRODUCER INTERESTS TO AVAIL ITSELF OF THE
CAPPER-VOLSTEAD EXEMPTION.  (FN15) 

THE JUDGMENT BELOW IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  369 F.2D 449 (1966), CERT. DENIED, 387 U.S. 932 (1967).  SEE
MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458
(1960); SUNKIST GROWERS, INC. V. WINCKLER & SMITH CITRUS PRODUCTS CO.,
370 U.S. 19 (1962). 

FN2  SECTION 1 OF THE ACT READS: 

"PERSONS ENGAGED IN THE PRODUCTION OF AGRICULTURAL PRODUCTS AS
FARMERS, PLANTERS, RANCHMEN, DAIRYMEN, NUT OR FRUIT GROWERS MAY ACT
TOGETHER IN ASSOCIATIONS, CORPORATE OR OTHERWISE, WITH OR WITHOUT
CAPITAL STOCK, IN COLLECTIVELY PROCESSING, PREPARING FOR MARKET,
HANDLING, AND MARKETING IN INTERSTATE AND FOREIGN COMMERCE, SUCH
PRODUCTS OF PERSONS SO ENGAGED.  SUCH ASSOCIATIONS MAY HAVE MARKETING
AGENCIES IN COMMON; AND SUCH ASSOCIATIONS AND THEIR MEMBERS MAY MAKE
THE NECESSARY CONTRACTS AND AGREEMENTS TO EFFECT SUCH PURPOSES:
PROVIDED, HOWEVER, THAT SUCH ASSOCIATIONS ARE OPERATED FOR THE MUTUAL
BENEFIT OF THE MEMBERS THEREOF, AS SUCH PRODUCERS, AND CONFORM TO ONE
OR BOTH OF THE FOLLOWING REQUIREMENTS: 

"FIRST.  THAT NO MEMBER OF THE ASSOCIATION IS ALLOWED MORE THAN ONE
VOTE BECAUSE OF THE AMOUNT OF STOCK OR MEMBERSHIP CAPITAL HE MAY OWN
THEREIN, OR: 

"SECOND.  THAT THE ASSOCIATION DOES NOT PAY DIVIDENDS ON STOCK OR
MEMBERSHIP CAPITAL IN EXCESS OF 8 PER CENTUM PER ANNUM. 

"AND IN ANY CASE TO THE FOLLOWING: 

"THIRD.  THAT THE ASSOCIATION SHALL NOT DEAL IN THE PRODUCTS OF
NONMEMBERS TO AN AMOUNT GREATER IN VALUE THAN SUCH AS ARE HANDLED BY IT
FOR MEMBERS."  7 U.S.C. SEC 291. 

FN3  "LIMITATION OF MEMBERSHIP IN LOCAL ASSOCIATIONS TO ACTUAL CITRUS
FRUIT PRODUCERS IS A CARDINAL PRINCIPLE OF THE EXCHANGE (I.E., SUNKIST)
SYSTEM."  GARDNER & MCKAY, CALIFORNIA FRUIT GROWERS EXCHANGE SYSTEM 88
(U.S. DEPT. OF AGRICULTURE, FCA CIR. NO. C-135 (1950)).  SEE ALSO
CUMBERLAND, COOPERATIVE MARKETING - ITS ADVANTAGES AS EXEMPLIFIED IN
THE CALIFORNIA FRUIT GROWERS EXCHANGE 87 (1917).  THE CORPORATE NAME OF
SUNKIST PRIOR TO 1952 WAS THE CALIFORNIA FRUIT GROWERS EXCHANGE. 

FN4  IN 1958, APPROXIMATELY THE MIDPOINT OF THE PERIOD RELEVANT TO
THIS COMPLAINT, SUNKIST ALTERED ITS STRUCTURE IN TWO PRINCIPAL
RESPECTS:  FIRST, LOCAL ASSOCIATIONS BECAME MEMBERS OF SUNKIST GROWERS
DIRECTLY, WHEREAS UNDER THE OLD BYLAWS THEY HAD BEEN REPRESENTED
THROUGH THE DISTRICT EXCHANGES; SECOND, TWO WHOLLY OWNED CORPORATE
SUBSIDIARIES OF SUNKIST - EXCHANGE LEMON PRODUCTS CO. AND EXCHANGE
ORANGE PRODUCTS CO. - WERE MERGED INTO SUNKIST.  SINCE THE PARTIES HAVE
AGREED THAT THESE CHANGES IN NO WAY AFFECT THE ISSUE HERE, WE DISCUSS
SUNKIST IN ITS POST-1958 FORM. 

FN5  UNDER THE MARKETING CONTRACT, THE AGENCY PACKING HOUSE OBTAINS
FOR ITS SERVICES "ALL OF ITS COSTS OF EVERY KIND INCURRED IN CONNECTION
WITH" PROCESSING AND MARKETING THE FRUIT; THE SO-CALLED "FIXED FEE," IN
THE CONTRACT IN THIS RECORD, IS AN AMOUNT "NOT IN EXCESS OF 5 CENTS PER
FIELD BOX ON GRAPEFRUIT, 10 CENTS ON ORANGES," ETC.  WE ARE NOT ADVISED
HOW THAT FIXED FEE IS DETERMINED, OTHER THAN THAT IT IS THE RESULT OF
BARGAINING BETWEEN THE COMPANY AND THE GROWER.  IT MAY WELL BE THAT THE
FIXED FEE IS DEPENDENT ON THE BENEFITS OF COLLECTIVE MARKETING THROUGH
SUNKIST, IN THE LIMITED SENSE THAT IT REPRESENTS TO THE PARTIES WHAT
ONE CAN CHARGE AND THE OTHER CAN PAY, BOTH ANTICIPATING THE RETURN THE
GROWER MAY ACHIEVE THROUGH POOLING HIS FRUIT WITH THE SUNKIST
ORGANIZATION.  THE STIPULATION, WE NOTE, PROVIDES ONLY THAT THE AGENCY
ASSOCIATION "DOES NOT ITSELF PARTICIPATE IN EITHER THE GAIN OR LOSS
INVOLVED IN MARKETING FRUIT THROUGH SUNKIST BEYOND THE RECOVERY OF ITS
COSTS AND FIXED FEE FOR PACKING."  IN OUR VIEW, HOWEVER, THAT
DISCREPANCY IN THE RECORD IS NOT CRUCIAL TO THE DECISION HERE. 

FN6  THE MAJORITY BELOW HELD THAT THE ISSUE HERE WAS RESOLVED SUB
SILENTIO IN FAVOR OF SUNKIST IN SUNKIST GROWERS, INC. V. WINCKLER &
SMITH CITRUS PRODUCTS CO., 370 U.S. 19 (1962).  BUT NONGROWER
PARTICIPATION IN SUNKIST WAS NOT POINTED OUT NOR WAS THE ISSUE RAISED
IN THAT CASE; INDEED, IT WAS CONCEDED BY THE RESPONDENTS THERE THAT
SUNKIST WAS A CAPPER-VOLSTEAD COOPERATIVE. 

FN7  SEE H.R. REP. NO. 627, 63D CONG., 2D SESS., 14-16 (1914); ALLEN
BRADLEY CO. V. LOCAL NO. 3, 325 U.S. 797 (1945). 

FN8  THE PURPOSE AND OBJECT OF THE LIMITED EXEMPTION OF THE CAPPER
VOLSTEAD ACT IS FULLY DISCUSSED IN MARYLAND & VIRGINIA MILK PRODUCERS
ASSN. V. UNITED STATES, 362 U.S. 458, 464-468 (1960); SEE ALSO HANNA,
ANTITRUST IMMUNITIES OF COOPERATIVE ASSOCIATIONS, 13 LAW & CONTEMP. 
PROB.  488 (1948). 

FN9  62 CONG. REC. 2052 (1922).  SEE ALSO 60 CONG. REC. 369
(1920)(REMARKS OF SENATOR LENROOT).  IT IS SIGNIFICANT THAT AN
AMENDMENT WAS OFFERED ON THE FLOOR OF THE SENATE TO BRING WITHIN THE
BILL PROCESSORS OF AGRICULTURAL PRODUCTS WHERE THE GROWER'S RETURN
DEPENDED UPON THE PRICE THE PROCESSOR OBTAINED FOR THE FINISHED
PRODUCT, REFERENCE BEING MADE TO THE BEET SUGAR MANUFACTURER.  62 CONG.
REC. 2273 (1922).  LIKE SUNKIST'S ARGUMENT HERE, IT WAS STATED THAT
"THE BENEFICIARY OF THIS AMENDMENT WOULD BE THE PRODUCER."  ID., AT
2274.  BUT AS SENATOR NORRIS STATED IN OPPOSITION TO THE INCLUSION OF
THE PROCESSORS (ID., AT 2275): 

"THEY ARE NOT COOPERATORS; THEY ARE NOT PRODUCERS; IT IS NOT AN
ORGANIZATION COMPOSED OF PRODUCERS WHO INCORPORATE TOGETHER TO HANDLE
THEIR OWN PRODUCTS  ...  ." 

THE AMENDMENT WAS REJECTED.  ID., AT 2275, 2281. 

FN10  SEE HULBERT, LEGAL PHASES OF FARMER COOPERATIVES 170 (U.S.
DEPT. OF AGRICULTURE, FCS BULL.  NO. 10, 1958): 

"THIS AND OTHER LANGUAGE WHICH APPEARS IN THE ACT MAKE IT PLAIN THAT
A COOPERATIVE, TO COME WITHIN THE ACT, MUST BE COMPOSED OF PRODUCERS." 

SEE ALSO HULBERT, LEGAL PHASES OF COOPERATIVE ASSOCIATIONS 45 (U.S.
DEPT. OF AGRICULTURE, BULL.  NO. 1106, 1922); MISCHLER, AGRICULTURAL
COOPERATIVE LAW, 30 ROCKY MT. L. REV. 381, 385 (1958); 36 OP. ATTY.
GEN. 326, 339 (1930); NOTE, 44 VA. L. REV. 63, 69-70, 100 (1958). 

FN11  CF. SHEFFIELD FARMS CO., 44 F.T.C. 555 (1948); GOLD MEDAL
FARMS, INC., 29 F.T.C.  356 (1939). 

FN12 E.G., 62 CONG. REC. 2271 (1922); 60 CONG. REC. 365 (1920). 
SUNKIST - A MEMBERSHIP, RATHER THAN STOCK, CORPORATION - POINTS OUT
THAT IT, THEN KNOWN AS THE CALIFORNIA FRUIT GROWERS EXCHANGE, WAS
FAVORABLY REFERRED TO DURING THE DEBATES, SEE, E.G., 62 CONG.  REC.
2052, 2267, 2271, 2277 (1922); 60 CONG. REC. 312, 315, 360-361, 370
(1920).  THERE IS NOTHING TO SHOW, HOWEVER, THAT CONGRESS WAS AWARE
THAT NONPRODUCERS PARTICIPATED IN THE MARKETING OF FRUIT IN THE SUNKIST
SYSTEM; IN OUR READING OF THOSE REFERENCES, IT IS MORE LIKELY THAT
CONGRESS ASSUMED THE ORGANIZATION WAS SOLELY OF PRODUCERS.  FOR THAT
MATTER, SENATOR WALSH, FOR ONE, DOUBTED THAT THE EXCHANGE'S FEDERATION
OF COOPERATIVE ASSOCIATIONS WOULD EVEN BE ENCOMPASSED BY THE ACT (62
CONG. REC. 2277-2278).  IN ANY EVENT, WE CANNOT TAKE THOSE REMARKS AS
INTENDING SPECIFIC APPROVAL OF SUNKIST, IN LIGHT OF THE LANGUAGE OF THE
ACT AND ITS OTHER HISTORY. 

FN13  IT WAS RECOGNIZED, FOR EXAMPLE, THAT PRODUCERS WHO DESIRED TO
ORGANIZE FOR COLLECTIVE MARKETING MIGHT NOT HAVE, AT THE OUTSET, THE
NECESSARY FINANCES TO DO SO, AND MIGHT THEREFORE SEEK CAPITAL FROM
NONPRODUCERS.  SEE 60 CONG. REC. 365 (1920)(REMARKS OF SENATOR WALSH);
62 CONG. REC. 2271 (1922)(SAME); 62 CONG. REC. 2273 (1922)(REMARKS OF
SENATOR NORRIS).  SEE ALSO HEARINGS ON H.R. 2373 BEFORE A SUBCOMMITTEE
OF THE SENATE JUDICIARY COMMITTEE, 67TH CONG., 1ST SESS. (1921). 

FN14  AS SUCH, THE AGENCY ASSOCIATION'S INTERESTS MAY IN SOME
SITUATIONS BE ANTITHETICAL TO THOSE OF THE GROWERS WITH WHICH IT HAS
CONTRACTED.  FOR EXAMPLE, SUNKIST HAS THE POWER TO REVIEW CONTRACTS
BETWEEN GROWERS AND THE AGENCY ASSOCIATIONS.  OBVIOUSLY, TO THE EXTENT
THAT THE AGENCY ASSOCIATIONS ARE REPRESENTED IN THE COUNCILS OF
SUNKIST, THEY IN EFFECT REVIEW THEIR OWN CONTRACTS. 

FN15  ALL WE DECIDE IS THAT SUNKIST GROWERS, INC., IS NOT ENTITLED TO
ASSERT CAPPER-VOLSTEAD AS A DEFENSE TO THE SUIT BASED ON SEC 1 OF THE
SHERMAN ACT.  WE EXPRESS NO VIEWS ON THE MERITS OF THAT SUIT. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT'S HOLDING THAT CONGRESS DID NOT INTEND THAT
NONSTOCK ORGANIZATIONS WITH NONPRODUCER MEMBERS SHOULD QUALIFY FOR THE
ANTITRUST EXEMPTION CONFERRED BY SEC 1 OF THE CAPPER-VOLSTEAD ACT, 7
U.S.C. SEC 291, AND THAT THE SUNKIST SYSTEM THEREFORE IS TECHNICALLY
NOT A PROPERLY CONSTITUTED CAPPER-VOLSTEAD COOPERATIVE.  HOWEVER, LIKE
MY BROTHER WHITE, I AM UNABLE TO IGNORE THE POSSIBLE EFFECT OF THE
COURT'S HOLDING INSOFAR AS IT SUBJECTS THIS LARGE AGRICULTURAL
ORGANIZATION TO ANTITRUST LIABILITY EXTENDING FAR BEYOND THE CONFINES
OF THIS SUIT. 

THERE IS NOTHING IN THE RECORD TO INDICATE THAT SUNKIST INTENDED TO
EVADE THE MANDATE OF THE CAPPER-VOLSTEAD ACT WHEN IT ALLOWED PRIVATELY
OWNED "AGENCY ASSOCIATION" PACKING HOUSES TO BECOME MEMBERS OF THE
SUNKIST SYSTEM.  SUNKIST'S ONLY APPARENT MOTIVE IN INCLUDING THE AGENCY
ASSOCIATIONS AS MEMBERS WAS TO PROVIDE A GREATER RANGE OF PACKING
FACILITIES FOR CITRUS GROWERS WHO DESIRED TO MARKET THROUGH SUNKIST. 
THE AGENCY ASSOCIATIONS HAVE BEEN AN INTEGRAL PART OF THE SUNKIST
SYSTEM FOR MANY YEARS.  (FN1)  UNTIL THE BRINGING OF THE PRESENT
ACTION, THIS ASPECT OF SUNKIST'S ORGANIZATION HAD APPARENTLY GONE
WITHOUT CHALLENGE FROM PRIVATE PERSONS WHO DEALT WITH SUNKIST.  ITS
LEGALITY NEVER SEEMS TO HAVE BEEN QUESTIONED BY ANY AGENCY OF
GOVERNMENT.  SUNKIST ARGUED BEFORE US, WITHOUT CHALLENGE TO ITS
SINCERITY, THAT THE MEMBERSHIP OF THE AGENCY ASSOCIATIONS DID NOT
DEPRIVE IT OF ANTITRUST IMMUNITY SO LONG AS ALL OF ITS ACTIONS WERE
TAKEN FOR THE BENEFIT OF THE GROWERS.  THERE IS NO REASON TO DOUBT THAT
THIS HAS BEEN SUNKIST'S BELIEF THROUGH THE YEARS. 

IN THESE CIRCUMSTANCES, IT SEEMS INEQUITABLE THAT THE MEMBERSHIP OF
THE AGENCY ASSOCIATIONS SHOULD CAUSE SUNKIST TO LOSE ALL OF ITS
PREVIOUSLY ASSUMED IMMUNITY FROM LIABILITY UNDER SEC 1 OF THE SHERMAN
ACT.  THIS WOULD EVIDENTLY BE THE CONSEQUENCE OF THE COURT'S HOLDING,
AND IF NOT MITIGATED IN ANY WAY IT WOULD APPEAR TO EXPOSE SUNKIST TO
VERY LARGE LIABILITIES.  MANY OF THE ACTIVITIES OF A MARKETING
ORGANIZATION THE SIZE OF SUNKIST PRESUMABLY AMOUNT TO RESTRAINTS OF
TRADE, AND UNDER THE COURT'S RATIONALE SUNKIST WOULD BE SUBJECT TO
TREBLE DAMAGE SUITS IN RESPECT OF ALL OF THEM.  THE CHIEF RESULT WOULD
BE TO ALLOW WINDFALL TREBLE DAMAGE RECOVERIES TO PERSONS WITH WHOM
SUNKIST DEALT AT ARM'S LENGTH AND IN GOOD FAITH.  THE MAIN BURDEN WOULD
ULTIMATELY FALL ON THE GROWERS AT THE BASE OF THE SUNKIST
ORGANIZATION. 

I WOULD HOLD THAT SUNKIST IS NOT LIABLE UNDER SEC 1 OF THE SHERMAN
ACT FOR PAST ACTS MERELY BECAUSE THE AGENCY ASSOCIATIONS PARTICIPATED
IN ITS GOVERNMENT BY VIRTUE OF THEIR MEMBERSHIP.  IT SEEMS TO ME THAT
THIS RESULT IS NOT ONLY MORE EQUITABLE BUT ACCORDS BETTER WITH THE
BASIC PURPOSE OF CONGRESS, WHICH WAS TO AID PRODUCERS, THAN DOES THE
COURT'S HOLDING, WHICH BURDENS THE GROWERS WITH HEAVY POTENTIAL
LIABILITIES.  THIS BELIEF IS SUPPORTED BY THE FREQUENT REFERENCE IN THE
CONGRESSIONAL DEBATES TO THE FORERUNNER OF THIS VERY ORGANIZATION AS
ONE WHICH CONGRESS INTENDED BY THE ACT TO PROTECT.  (FN2)  SUFFICIENT
PRECEDENT FOR THIS TYPE OF EQUITABLE MITIGATION IS FOUND IN SUNKIST
GROWERS, INC. V. WINCKLER & SMITH CITRUS PRODUCTS CO., 370 U.S. 19, IN
WHICH THIS COURT HELD THAT SUNKIST'S FORMER "TRIPARTITE" STRUCTURE DID
NOT DEPRIVE IT OF ITS SEC 1 IMMUNITY.  THE COURT THERE STATED THAT: 

"TO HOLD OTHERWISE WOULD BE TO IMPOSE GRAVE LEGAL CONSEQUENCES UPON
ORGANIZATIONAL DISTINCTIONS THAT ARE OF DE MINIMIS MEANING AND EFFECT
TO THESE GROWERS WHO HAVE BANDED TOGETHER FOR PROCESSING AND MARKETING
PURPOSES WITHIN THE PURVIEW OF THE CLAYTON AND CAPPER-VOLSTEAD ACTS." 
ID., AT 29. 

THE VERY WORDS OF CAPPER-VOLSTEAD SEC 1, HOWEVER, MAKE IT CLEAR THAT
CONGRESS GRANTED ANTITRUST IMMUNITY TO AGRICULTURAL COOPERATIVES ONLY
ON CONDITION THAT ALL OF THE BENEFITS OF COOPERATIVE ORGANIZATION WERE
RECEIVED BY AGRICULTURAL PRODUCERS.  THEREFORE, I WOULD ALSO HOLD THAT
SUNKIST MAY NOT ASSERT ANTITRUST IMMUNITY IF THE DAMAGE COMPLAINED OF
RESULTED FROM ATTEMPTS BY THE AGENCY ASSOCIATIONS TO USE THEIR POWER
WITHIN SUNKIST FOR THEIR OWN BENEFIT AS DISTINGUISHED FROM THAT OF THE
GROWERS.    THE COURT HOLDS, AND, FOR THE FUTURE, I AGREE, THAT EVEN
THOSE ORGANIZATIONS IN WHICH ALL GAINS ARE CHANNELED TO THE PRODUCERS
MAY NOT QUALIFY UNDER CAPPER-VOLSTEAD SEC 1 IF THEY HAVE NONPRODUCER
MEMBERS.  CONGRESS MAY HAVE EXCLUDED NONPRODUCERS SIMPLY BECAUSE IT
FELT THAT THE BENEFITS TO PRODUCERS FROM NONPRODUCER MEMBERSHIP WERE
OUTWEIGHED BY THE DANGERS OF ADMITTING NONPRODUCER FOXES INTO THE
COOPERATIVE HEN ROOST.  HOWEVER, AS THE COURT RECOGNIZES, SEE ANTE, AT
394-395, THE EVIDENT CONGRESSIONAL CONCERN ABOUT THE POSSIBILITY OF
MONOPOLY BY ORGANIZATIONS IMMUNIZED FROM ANTITRUST PROSECUTION BY
CAPPER-VOLSTEAD  (FN3) INDICATES THAT IN RESTRICTING MEMBERSHIP TO
PRODUCERS CONGRESS ALSO INTENDED TO LIMIT IN A ROUGH WAY THE AMOUNT OF
MARKET POWER WHICH COULD BE CONTROLLED BY SUCH ORGANIZATIONS.  THE
RESOURCES OF NONPRODUCERS WERE TO BE AVAILABLE TO THE COOPERATIVES, NOT
THROUGH THE BROAD AVENUE OF MEMBERSHIP, BUT BY THE NARROWER PATH OF
CONTRACT:  THE ACT PROVIDES THAT QUALIFYING ORGANIZATIONS AND THEIR
MEMBERS "MAY MAKE THE NECESSARY CONTRACTS AND AGREEMENTS" TO EFFECT THE
ACT'S PURPOSES.  TO GIVE EFFECT TO THIS LEGISLATIVE INTENT, I WOULD
HOLD THAT THE MARKETING AGREEMENTS OF THE AGENCY ASSOCIATIONS WITH
SUNKIST AND WITH INDIVIDUAL GROWERS MUST BE TESTED BY THE STANDARD
APPLICABLE TO CONTRACTS WITH NONMEMBERS. 

THE COURT OF APPEALS HELD THAT, TREATED AS CONTRACTS WITH NONMEMBERS,
THE AGREEMENTS IN QUESTION WERE PROPER UNDER THE ACT.  369 F.2D 449,
461-462.  I AGREE.  REGARDED AS CONTRACTS, THESE AGREEMENTS PROVIDE
ESSENTIALLY THAT A GROWER WHO DESIRES TO MARKET THROUGH THE SUNKIST
SYSTEM AND HAVE HIS FRUIT PACKED BY AN AGENCY ASSOCIATION SHALL DELIVER
TO SUCH ASSOCIATION HIS ENTIRE CROP FOR THE YEAR, THAT THE AGENCY
ASSOCIATION SHALL PACK IT IN RETURN FOR COST PLUS A FIXED FEE, AND THAT
THE ENTIRE CROP SHALL THEN BE MARKETED BY SUNKIST.  THE CONTRACT MAY BE
CANCELED BY THE GROWER IN AUGUST OF ANY YEAR.  SINCE THE MAIN EFFECT OF
THESE AGREEMENTS IS SIMPLY TO GIVE THE GROWERS WHO WANT TO MARKET
THROUGH SUNKIST A WIDER CHOICE OF PACKING FACILITIES THAN THEY WOULD
ENJOY IF LIMITED TO COOPERATIVE PACKING HOUSES, I WOULD HOLD THAT THE
AGREEMENTS ARE PERMISSIBLE WHEN LOOKED UPON AS CONTRACTS WITH
NONMEMBERS. 

IN ACCORD WITH THIS OPINION, I WOULD REMAND THE CASE TO THE DISTRICT
COURT SO THAT CASE-SWAYNE MAY SHOW WHAT, IF ANY, OF THE DAMAGE
ALLEGEDLY SUFFERED BY IT RESULTED FROM ACTIONS TAKEN BY THE AGENCY
ASSOCIATIONS FOR THEIR OWN BENEFIT AS DISTINGUISHED FROM THAT OF THE
GROWERS.  I NEED HARDLY SAY THAT FOR THE FUTURE SUNKIST WOULD FORFEIT
ITS ENTIRE CAPPER-VOLSTEAD ANTITRUST EXEMPTION WERE IT TO ELECT TO
CONTINUE THE MEMBERSHIP OF THE AGENCY ASSOCIATIONS. 

FN1  IT APPEARS THAT THE AGENCY ASSOCIATIONS HAVE BEEN MEMBERS OF THE
SYSTEM AT LEAST SINCE 1924.  SEE MCKAY & STEVENS, ORGANIZATION AND
DEVELOPMENT OF A COOPERATIVE CITRUS-FRUIT MARKETING AGENCY 22-23 (U.S.
DEPT. OF AGRICULTURE, BULL.  NO. 1237, 1924). 

FN2  SEE N. 12, ANTE, AT 394. 

FN3  SEE, E.G., 62 CONG. REC. 2217-2226, 2257-2280. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE STEWART JOINS, CONCURRING IN
THE RESULT. 

I AGREE WITH THE COURT'S BASIC JUDGMENT THAT CONGRESS INTENDED TO
GRANT IMMUNITY FROM THE ANTITRUST LAWS ONLY TO THE COOPERATIVE EFFORTS
OF "PERSONS ENGAGED IN THE PRODUCTION OF AGRICULTURAL PRODUCTS AS
FARMERS, PLANTERS, RANCHMEN, DAIRYMEN, NUT OR FRUIT GROWERS  ...  ." 
ARRANGEMENTS BETWEEN GROWERS AND NONGROWERS ARE SUBJECT TO SCRUTINY
UNDER THE ANTITRUST LAWS.  UNDER THE CONTROLLING DECISIONS ANY
COMBINATION BETWEEN SUNKIST AND NONGROWER PACKING HOUSES, WERE THEY NOT
MEMBERS OF SUNKIST, WOULD HAVE TO MEET THE STANDARDS OF THE ANTITRUST
STATUTES.  UNITED STATES V. BORDEN CO., 308 U.S. 188 (1939).  MAKING
THE NONGROWER A MEMBER OF THE COOPERATIVE SHOULD NOT AND DOES NOT
IMMUNIZE GROWER-NONGROWER TRANSACTIONS FROM ANY OF THE ANTITRUST LAWS. 
DESPITE SUCH MEMBERSHIP, THESE TRANSACTIONS CONTINUE TO BE FORBIDDEN IF
THEY VIOLATE SEC. 1.  INDEED, MEMBERSHIP SHOULD ITSELF BE LOOKED UPON
AS AN AGREEMENT OR COMBINATION BETWEEN GROWERS AND NONGROWERS WHICH, IF
IT RESTRAINS TRADE, IS SUBJECT TO SUIT UNDER THE SHERMAN ACT.  HENCE,
SINCE THE COMPLAINT IN THIS CASE ENCOMPASSED A CHARGE THAT CERTAIN
ARRANGEMENTS BETWEEN SUNKIST AND THE NONGROWER AGENCY ASSOCIATIONS
DENIED PRODUCT FRUIT TO CASE-SWAYNE AND VIOLATED THE ANTITRUST LAWS, I
AGREE THAT IT WAS ERROR TO DISMISS THE SEC 1 CHARGE ON IMMUNITY
GROUNDS. 

BUT IT DOES NOT FOLLOW THAT SUNKIST HAS LOST ITS ANTITRUST IMMUNITY
COMPLETELY.  THE BULK OF ITS MEMBERS ARE GROWER COOPERATIVES OR
MARKETING AGENCIES, AND THE GREAT MAJORITY OF ITS TRANSACTIONS ARE
DEALINGS WITH AND FOR THE ACCOUNT OF THESE AGRICULTURAL COOPERATIVES
WHICH CONGRESS CLEARLY INTENDED TO EXEMPT FROM THE ANTITRUST LAWS.  AN
EXEMPT ORGANIZATION MAY NOT CONSPIRE WITH AN OUTSIDER TO VIOLATE SEC.
1, BUT IF IT DOES, IT DOES NOT FORFEIT ITS IMMUNITY EXCEPT FOR THAT
TRANSACTION.  I SEE NO REASON FOR A DIFFERENT CONSEQUENCE WHERE THE
CONSPIRACY OR COMBINATION TAKES THE FORM OF GRANTING MEMBERSHIP IN THE
EXEMPT ORGANIZATION.  IF NONGROWER MEMBERSHIP IS A COMBINATION IN
RESTRAINT OF TRADE OR IF ANY AGREEMENTS BETWEEN SUNKIST AND THE
NONGROWER MEMBER VIOLATE THE SHERMAN ACT, CASE-SWAYNE SHOULD BE ABLE TO
COLLECT TREBLE DAMAGES FOR ANY INJURY FLOWING FROM SUCH VIOLATIONS. 
BUT I SEE LITTLE BASIS FOR CONCLUDING THAT THE MEMBERSHIP OF THE AGENCY
ASSOCIATION STRIPS SUNKIST OF ITS STATUS AS AN EXEMPT COOPERATIVE AND
EXPOSES IT TO WHAT WOULD BE VERY EXTENSIVE LIABILITY UNDER THE
ANTITRUST LAWS WHOLLY UNRELATED TO THE NONGROWER AFFILIATION. 

AT THE BASE OF THE SUNKIST ORGANIZATION ARE 12,000 GROWERS WHO
THEMSELVES ARE NOT MEMBERS OF SUNKIST BUT WHO ARE MEMBERS OF LOCAL
ASSOCIATIONS WHICH OPERATE PACKING HOUSES AND WHICH PICK, PACK, AND
ARRANGE FOR THE MARKETING OF THE FRUIT GROWN BY THEIR MEMBERS.  MOST OF
THESE LOCAL ASSOCIATIONS APPEAR TO QUALIFY AS EXEMPT AGRICULTURAL
COOPERATIVES.  A RELATIVELY SMALL NUMBER, HOWEVER, THE SO-CALLED AGENCY
ASSOCIATIONS, ARE PRIVATELY OWNED PACKING HOUSES WHICH BUY AND PACK THE
FRUIT OF THOSE GROWERS WITH WHOM THEY CONTRACT.  THE LOCAL
ASSOCIATIONS, INCLUDING THE AGENCY ASSOCIATIONS, ARE IN TURN ORGANIZED
INTO DISTRICT EXCHANGES WHICH, UNLESS AGENCY ASSOCIATION MEMBERSHIP
DISQUALIFIES SOME OF THEM, WOULD SEEM ALSO TO BE EXEMPT COOPERATIVES. 
THE DISTRICT EXCHANGES ARE PRIMARILY MARKETING ORGANIZATIONS.  SUNKIST,
A MEMBER CORPORATION, IS AT THE TOP OF THE PYRAMID.  AMONG OTHER
THINGS, IT HAS ULTIMATE AUTHORITY AND RESPONSIBILITY FOR THE MARKETING
OF BOTH FRESH AND PRODUCT FRUIT. 

MEMBERSHIP IN SUNKIST IS MADE UP OF THE LOCAL ASSOCIATIONS AND THE
DISTRICT EXCHANGES.  THE AGENCY ASSOCIATIONS MAKE UP ABOUT 15% OF THE
MEMBERSHIP.  THEY HAVE, HOWEVER, NO DIRECT VOICE IN THE ELECTION OF
SUNKIST DIRECTORS SINCE THE SELECTION OF DIRECTORS IS VESTED IN THE
EXCHANGE MEMBERS ALONE.  THE DIRECTORS HAVE VERY WIDE AUTHORITY TO
CONDUCT THE AFFAIRS OF SUNKIST.  UNDER THE CHARTER AND BYLAWS, GENERAL
MEMBERSHIP CARRIES WITH IT LITTLE POWER AND INFLUENCE.  MEMBERSHIP
DOES, HOWEVER, INVOLVE THE EXECUTION OF A MEMBERSHIP APPLICATION AND
AGREEMENT BINDING THE MEMBER TO SUNKIST'S CHARTER AND BYLAWS, WHICH
GIVE SUNKIST EXTENSIVE POWERS OVER THE MARKETING OF ITS MEMBERS' FRUIT,
INCLUDING THE POWER TO CONFINE THE PACKING, PROCESSING, AND MARKETING
FUNCTIONS TO THE SUNKIST FAMILY.  IN ADDITION, LOCAL ASSOCIATIONS AND
EXCHANGES APPARENTLY EXECUTE THE STANDARD "SUNKIST-DISTRICT EXCHANGE
ASSOCIATION AGREEMENT" WHICH, AMONG OTHER THINGS, CONTAINS THE
AGREEMENT BY THE LOCAL ASSOCIATION TO MARKET FRUIT EXCLUSIVELY THROUGH
THE EXCHANGES AND BY THE EXCHANGE TO MARKET EXCLUSIVELY THROUGH
SUNKIST. 

IF SUNKIST'S EXEMPTION IS COMPLETELY LOST BECAUSE OF THE MEMBERSHIP
OF THE NONGROWER AGENCY ASSOCIATIONS, SEVERAL CONSEQUENCES FOLLOW. 
THOSE DISTRICT EXCHANGES WHICH HAVE NONGROWER MEMBERS WILL LIKEWISE
FORFEIT THEIR EXEMPTION.  THE ARRANGEMENTS AMONG SUNKIST, EXEMPT
EXCHANGES, AND EXEMPT LOCAL ASSOCIATIONS WILL BE LOOKED UPON AS
ARRANGEMENTS BETWEEN EXEMPT AND NONEXEMPT ORGANIZATIONS.  THUS FOR ALL
PRACTICAL PURPOSES THE ENTIRE SUNKIST STRUCTURE WILL BE EXPOSED TO
ANTITRUST LIABILITY FOR A GREAT MANY TRANSACTIONS WHICH ARE WHOLLY
BETWEEN GROWERS OR BETWEEN THEIR COOPERATIVE ORGANIZATIONS,
TRANSACTIONS WHICH CONGRESS INTENDED TO EXEMPT FROM THE ANTITRUST
LAWS. 

NEITHER THE AGENCY ASSOCIATIONS THEMSELVES NOR THEIR ARRANGEMENTS
WITH GROWERS ARE CLAIMED BY SUNKIST TO BE CAPPER-VOLSTEAD COOPERATIVES
EXEMPT BECAUSE OF THAT STATUS FROM EXAMINATION UNDER THE SHERMAN ACT. 
ALSO, THE CONTRACTS AND ARRANGEMENTS BETWEEN THE AGENCY ASSOCIATIONS,
NONEXEMPT ENTITIES, AND THE EXCHANGES AND SUNKIST, WHICH SHOULD BE
TREATED AS OTHERWISE EXEMPT ENTITIES, ARE THEMSELVES WITHIN THE REACH
OF SEC 1.  AMONG THESE NONEXEMPT ARRANGEMENTS IS THE MEMBERSHIP OF AN
AGENCY ASSOCIATION IN EITHER AN EXCHANGE OR SUNKIST ITSELF.  CASE
SWAYNE SHOULD BE ABLE TO RECOVER FROM SUNKIST THOSE DAMAGES WHICH FLOW
FROM RESTRAINTS OF TRADE RESULTING FROM THE AGREEMENTS BETWEEN THE
AGENCY ASSOCIATIONS AND SUNKIST OR BETWEEN THE AGENCY ASSOCIATIONS AND
THE DISTRICT EXCHANGES AND FROM THE MEMBERSHIP OF THE AGENCIES IN
EITHER SUNKIST OR THE EXCHANGES.  BUT CASE-SWAYNE SHOULD NOT RECOVER
FOR INJURY TO ITS BUSINESS CAUSED BY OTHER INTERCOOPERATIVE OR
INTERGROWER TRANSACTIONS AND NOT RESULTING FROM THE FORBIDDEN
RELATIONSHIP BETWEEN AN EXEMPT AND A NONEXEMPT ENTITY.  THIS RESULT, IN
MY VIEW, WILL MORE NEARLY SERVE THE POLICY OF CONGRESS IN GRANTING
ANTITRUST EXEMPTION TO GROWERS AND THEIR COOPERATIVE ACTIVITIES. 

I WOULD REMAND TO THE DISTRICT COURT FOR A TRIAL OF THE SEC 1 CASE
UNDER THE ABOVE PRINCIPLES. 

MR. JUSTICE DOUGLAS, DUBITANTE. 

I AM NOT AS CERTAIN AS MR. JUSTICE WHITE APPEARS TO BE THAT THE
IMMUNITY OF THE GROWERS OR COOPERATIVES GRANTED BY THE CAPPER-VOLSTEAD
ACT IS ONLY PARTIALLY LOST IN CASE NONGROWERS COMBINE WITH THE GROWERS
OR COOPERATIVES.  BUT THE QUESTION IS CERTAINLY NOT FREE OF DOUBT AND
IT HAS NOT BEEN ARGUED.  NOR HAVE THE QUESTIONS DISCUSSED BY MR.
JUSTICE HARLAN BEEN FULLY PRESENTED AND ARGUED.  SO FAR AS WE CAN TELL
AT THIS STAGE OF THE LITIGATION, ALL OF THOSE PROBLEMS MAY TURN OUT TO
BE WHOLLY ABSTRACT.  THE EXTENT, LET ALONE THE NATURE, OF PARTICIPATION
BY NONGROWER ELEMENTS IN THE AGREEMENTS AND PRACTICES ALLEGED TO
VIOLATE THE ANTITRUST LAWS HAS INDEED HARDLY BEEN EXPLORED.  THEREFORE
I THINK IT IS THE PART OF WISDOM SPECIFICALLY TO RESERVE THE QUESTIONS
WITH REGARD TO THE SCOPE OF THE IMMUNITY THAT MAY SURVIVE TODAY'S
RULING. 
..END :









SIMS V. GEORGIA 389 U.S. 404 


NO. 678.  DECIDED DECEMBER 18, 1967.  - CERTIORARI GRANTED; 223 GA. 465,
156 S.E.2D 65, REVERSED AND REMANDED. 


IN THIS CASE, BEFORE THE COURT FOR THE SECOND TIME, PETITIONER, A
NEGRO SENTENCED TO DEATH FOR RAPE, AGAIN CONTENDS THAT THE CONFESSION
USED AT HIS TRIAL WAS COERCED THROUGH PHYSICAL ABUSE AND THAT THE
JURIES WHICH INDICTED AND CONVICTED HIM WERE DISCRIMINATORILY
SELECTED.  THIS COURT, WITHOUT REACHING THESE CLAIMS, PREVIOUSLY
REMANDED THE CASE FOR A HEARING ON THE VOLUNTARINESS OF THE CONFESSION,
385 U.S. 538, NOTING THAT THE STATE HAD FAILED TO PRODUCE AS WITNESSES
POLICE OFFICERS WHO HAD BEEN PRESENT AT THE TIME THE PETITIONER CLAIMED
HE WAS MISTREATED AND HAD THUS FAILED TO REBUT PETITIONER'S TESTIMONY
REGARDING PHYSICAL ABUSE PRIOR TO HIS CONFESSION.  THOUGH THE FACTS AS
TO THE COMPOSITION OF THE JURIES SHOWED THE PERCENTAGE OF NEGROES
LISTED ON THE RACIALLY SEGREGATED COUNTY TAX DIGESTS FROM WHICH THE
JURY LISTS WERE COMPILED WAS FAR LARGER THAN SUCH PERCENTAGES ON THE
JURY LISTS, THE STATE PRODUCED ONLY A JURY COMMISSIONER'S TESTIMONY
THAT HE DID NOT DISCRIMINATE IN COMPILING THE LISTS.  FOLLOWING THIS
COURT'S REMAND, THE JUDGE WHO HAD PRESIDED AT PETITIONER'S TRIAL,
WITHOUT HEARING FURTHER TESTIMONY AND SOLELY ON THE BASIS OF THE RECORD
PREVIOUSLY BEFORE THIS COURT, DECIDED THAT THE CONFESSION WAS
VOLUNTARY, REFUSED TO DECIDE OTHER ISSUES, AND DENIED A NEW TRIAL.  THE
GEORGIA SUPREME COURT AFFIRMED.  HELD: 

1.  THE STATE HAS AGAIN NOT ADEQUATELY REBUTTED PETITIONER'S CLAIM
THAT THE CONFESSION RESULTED FROM COERCION, AND ITS SECOND FAILURE TO
PRODUCE THE POLICE OFFICERS AS WITNESSES SUPPORTS THE CONCLUSION THAT
THEIR TESTIMONY WOULD NOT HAVE REBUTTED PETITIONER'S. 

2.  THE MANNER IN WHICH THE JURIES WHICH INDICTED AND CONVICTED
PETITIONER WERE SELECTED WAS UNCONSTITUTIONAL.  WHITUS V. GEORGIA, 385
U.S. 545. 

SIMS V. GEORGIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THIS CASE IS BEFORE US FOR THE SECOND TIME.  LAST TERM WE GRANTED
CERTIORARI TO CONSIDER FIVE CONSTITUTIONAL QUESTIONS RAISED BY
PETITIONER IN CHALLENGING HIS CONVICTION FOR RAPE AND HIS ACCOMPANYING
DEATH SENTENCE.  384 U.S. 998 (1966).  BECAUSE WE DECIDED THE CASE ON
THE GROUND THAT PETITIONER HAD NOT RECEIVED THE HEARING ON THE
VOLUNTARINESS OF A CONFESSION INTRODUCED AGAINST HIM REQUIRED BY OUR
DECISION IN JACKSON V. DENNO, 378 U.S. 368 (1964), WE DID NOT REACH THE
OTHER ISSUES ARGUED BY THE PARTIES.  385 U.S. 538 (1967). 

ON REMAND THE CASE WAS SUBMITTED TO THE JUDGE WHO HAD PRESIDED AT
PETITIONER'S ORIGINAL TRIAL ON THE BASIS OF THE PRINTED RECORD
PREVIOUSLY BEFORE THIS COURT.  ON THAT RECORD ALONE THE TRIAL JUDGE
DETERMINED THAT PETITIONER'S CONFESSION HAD BEEN VOLUNTARY AND DENIED A
NEW TRIAL.  THE TRIAL COURT SPECIFICALLY REFUSED TO PASS ON ANY OF THE
OTHER QUESTIONS PREVIOUSLY BRIEFED AND ARGUED HERE, HOLDING THAT THE
PRIOR RULINGS ON THESE ISSUES BY THE GEORGIA SUPREME COURT CONSTITUTED
THE LAW OF THE CASE.  THE GEORGIA SUPREME COURT AFFIRMED, UPHOLDING THE
TRIAL COURT ON ALL POINTS. 

IN HIS PRESENT APPLICATION PETITIONER RAISES AGAIN TWO OF THE FOUR
ISSUES NOT REACHED IN OUR PREVIOUS DECISION IN THIS CASE:  THE
VOLUNTARINESS OF HIS CONFESSION AND THE COMPOSITION OF THE JURIES BY
WHICH HE WAS INDICTED AND TRIED.*  IN RESPONSE TO THE STATE'S PREVIOUS
ARGUMENT THAT "THERE WAS NO EVIDENCE TO MAKE ANY ISSUE OF
VOLUNTARINESS" AND THEREFORE THERE WAS NO NEED TO APPLY JACKSON V.
DENNO, MR. JUSTICE CLARK STATED: 

"WE CANNOT AGREE.  THERE WAS A DEFINITE, CLEAR-CUT ISSUE HERE. 
PETITIONER TESTIFIED THAT DOCTOR JACKSON PHYSICALLY ABUSED HIM WHILE HE
WAS IN HIS OFFICE AND THAT HE WAS SUFFERING FROM THAT ABUSE WHEN HE
MADE THE STATEMENT, THEREBY RENDERING SUCH CONFESSION INVOLUNTARY AND
THE RESULT OF COERCION.  THE DOCTOR ADMITTED THAT HE SAW PETITIONER ON
THE FLOOR OF HIS OFFICE; THAT HE HELPED HIM DISROBE AND THAT HE KNEW
THAT PETITIONER REQUIRED HOSPITAL TREATMENT BECAUSE OF THE LACERATION
OVER HIS EYE BUT HE DENIED THAT PETITIONER WAS ACTUALLY ABUSED IN HIS
PRESENCE.  HE WAS UNABLE TO STATE, HOWEVER, THAT THE STATE PATROLMEN
DID NOT COMMIT THE ALLEGED OFFENSES AGAINST PETITIONER'S PERSON BECAUSE
HE WAS NOT IN THE ROOM DURING THE ENTIRE TIME IN WHICH THE PETITIONER
AND THE PATROLMEN WERE THERE.  IN FACT, THE DOCTOR WAS QUITE EVASIVE IN
HIS TESTIMONY AND NONE OF THE OFFICERS PRESENT DURING THE INCIDENT WERE
PRODUCED AS WITNESSES.  PETITIONER'S CLAIM OF MISTREATMENT, THEREFORE,
WENT UNCONTRADICTED AS TO THE OFFICERS AND WAS IN CONFLICT WITH THE
TESTIMONY OF THE PHYSICIAN."  385 U.S., AT 543. 

*THE STATE HAS NOT FILED A RESPONSE.  WHILE ORDINARILY WE WOULD CALL
FOR A RESPONSE BEFORE DECIDING A CASE SUMMARILY, THE EXACT ISSUES
PRESENTED NOW WERE BRIEFED AND ARGUED FULLY BY THE STATE AND PETITIONER
LAST TERM.  SINCE THE PROCEEDINGS BELOW ON REMAND CONSISTED SOLELY OF A
RECONSIDERATION OF THE PRINTED RECORD PREVIOUSLY BEFORE US, WE SEE NO
NEED FOR ANOTHER PRESENTATION OF THE ARGUMENTS ALREADY PRESENTED TO US
BY THE STATE. 

THUS IN REMANDING THE CASE FOR A HEARING ON VOLUNTARINESS WE
INDICATED TO THE STATE THAT AS THE EVIDENCE THEN STOOD IT HAD FAILED
ADEQUATELY TO REBUT PETITIONER'S TESTIMONY THAT HE HAD BEEN SUBJECTED
TO PHYSICAL VIOLENCE PRIOR TO HIS CONFESSION.  THE STATE HAD EVERY
OPPORTUNITY TO OFFER THE POLICE OFFICERS, WHOSE FAILURE TO TESTIFY HAD
ALREADY BEEN COMMENTED UPON HERE, TO CONTRADICT PETITIONER'S VERSION OF
THE EVENTS.  ITS FAILURE TO DO SO WHEN GIVEN A SECOND CHANCE LENDS
SUPPORT TO THE CONCLUSION THAT THEIR TESTIMONY WOULD NOT, IN FACT, HAVE
REBUTTED PETITIONER'S. 

IT NEEDS NO EXTENDED CITATION OF CASES TO SHOW THAT A CONFESSION
PRODUCED BY VIOLENCE OR THREATS OF VIOLENCE IS INVOLUNTARY AND CANNOT
CONSTITUTIONALLY BE USED AGAINST THE PERSON GIVING IT. BEECHER V.
ALABAMA, ANTE, P. 35.  THE RELIANCE BY THE STATE ON SUBSEQUENT WARNINGS
MADE TO PETITIONER PRIOR TO HIS CONFESSING IS MISPLACED.  PETITIONER
HAD BEEN IN THE CONTINUOUS CUSTODY OF THE POLICE FOR OVER EIGHT HOURS
AND HAD NOT BEEN FED AT ALL DURING THAT TIME.  HE HAD NOT BEEN GIVEN
ACCESS TO FAMILY, FRIENDS, OR COUNSEL AT ANY POINT.  HE IS AN
ILLITERATE, WITH ONLY A THIRD GRADE EDUCATION, WHOSE MENTAL CAPACITY IS
DECIDEDLY LIMITED.  UNDER SUCH CIRCUMSTANCES THE FACT THAT THE POLICE
MAY HAVE WARNED PETITIONER OF HIS RIGHT NOT TO SPEAK IS OF LITTLE
SIGNIFICANCE.  SEE BEECHER V. ALABAMA, SUPRA, AT 37 N. 4.  COMPARE
FIKES V. ALABAMA, 352 U.S. 191 (1957). 

PETITIONER ALSO CONTENDS THAT HE WAS INDICTED AND TRIED BY JURIES
FROM WHICH MEMBERS OF HIS RACE HAD BEEN UNCONSTITUTIONALLY EXCLUDED. 
THE FACTS REVEAL THAT THE GRAND AND PETIT JURY LISTS WERE DRAWN FROM
THE COUNTY TAX DIGESTS WHICH SEPARATELY LISTED TAXPAYERS BY RACE IN
CONFORMITY WITH THEN EXISTING GEORGIA LAW.  NEGROES CONSTITUTED 24.4%
OF THE INDIVIDUAL TAXPAYERS IN THE COUNTY.  HOWEVER, THEY AMOUNTED TO
ONLY 4.7% OF THE NAMES ON THE GRAND JURY LIST AND 9.8% OF THE NAMES ON
THE TRAVERSE JURY LIST FROM WHICH PETITIONER'S GRAND AND PETIT JURIES
WERE SELECTED.  THE STATE'S ONLY RESPONSE TO THAT SHOWING WAS TO CALL
ONE OF THE JURY COMMISSIONERS AS A WITNESS; THE JURY COMMISSIONER
TESTIFIED THAT HE OR ONE OF THE OTHER COMMISSIONERS KNEW PERSONALLY
EVERY QUALIFIED PERSON IN THE COUNTY AND DID NOT DISCRIMINATE IN
SELECTING NAMES FOR THE JURY LISTS.  THE FACTS IN THIS CASE MAKE IT
VIRTUALLY INDISTINGUISHABLE FROM WHITUS V. GEORGIA, 385 U.S. 545
(1967).  ACCORDINGLY, IT IS CLEAR THAT THE JURIES BY WHICH PETITIONER
WAS INDICTED AND TRIED WERE SELECTED IN A MANNER THAT DOES NOT COMPORT
WITH CONSTITUTIONAL REQUIREMENTS.  SEE ALSO JONES V. GEORGIA, ANTE, P.
24. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE
SUPREME COURT OF GEORGIA IS REVERSED, AND THE CASE IS REMANDED TO THAT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT
IS SO ORDERED. 
..END :





















UNITED STATES V. DIXIE EXPRESS 389 U.S. 409 


NO. 694.  DECIDED DECEMBER 18, 1967.* - 268 F. SUPP. 239, REVERSED AND
REMANDED. 

*TOGETHER WITH NO. 707, BRASWELL MOTOR FREIGHT LINES, INC. V. DIXIE
HIGHWAY EXPRESS, INC., ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


THE INTERSTATE COMMERCE COMMISSION (ICC) CONCLUDED, PURSUANT TO SEC.
207(A) OF THE INTERSTATE COMMERCE ACT, THAT A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY SHOULD ISSUE TO BRASWELL MOTOR FREIGHT LINES,
INC., AUTHORIZING SERVICE TO CERTAIN POINTS WHICH THE ICC FOUND WERE
BEING INADEQUATELY SERVED.  THE DISTRICT COURT ON SUIT BY COMPETING
MOTOR CARRIERS ENJOINED THE GRANT TO BRASWELL ON THE GROUND THAT THE
ICC HAD FAILED TO MAKE ADEQUATE FINDINGS AND HAD NOT AFFORDED EXISTING
CARRIERS OPPORTUNITY TO RECTIFY SERVICE DEFICIENCIES.  UPON REMAND THE
ICC MADE DETAILED FINDINGS AND HELD THAT EXISTING CARRIERS COULD NOT BE
DEPENDED UPON FOR ADEQUATE SERVICE.  THE DISTRICT COURT, ON REVIEW,
STATED THAT IT WAS THE ICC'S "INVARIABLE RULE" THAT NO NEW CERTIFICATE
WOULD ISSUE WITHOUT GIVING EXISTING CARRIERS OPPORTUNITY TO IMPROVE
SERVICE, THAT THIS WAS A "RULE OF PROPERTY," AND THAT THE RULE HAD NOT
BEEN FOLLOWED IN THIS CASE.  THE COURT PERMANENTLY ENJOINED THE
ISSUANCE OF A CERTIFICATE TO BRASWELL "UNLESS AND UNTIL" EXISTING
CARRIERS "ARE FIRST AFFORDED A REASONABLE OPPORTUNITY TO FURNISH SUCH
SERVICE."  HELD:  WHILE THE ICC SHOULD CONSIDER THE PUBLIC INTEREST IN
MAINTAINING THE HEALTH AND STABILITY OF EXISTING CARRIERS, IT MAY, UPON
THE BASIS OF APPROPRIATE FINDINGS, AUTHORIZE A NEW CERTIFICATE "EVEN
THOUGH THE EXISTING CARRIERS MIGHT ARRANGE TO FURNISH SUCCESSFULLY THE
PROJECTED SERVICE."  ICC V. PARKER, 326 U.S. 60, 70 (1945). 

UNITED STATES ET AL. V. DIXIE HIGHWAY EXPRESS, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI. 

PER CURIAM. 

PURSUANT TO SEC. 207(A) OF THE INTERSTATE COMMERCE ACT, 49 STAT. 551,
49 U.S.C. SEC.  307(A), THE INTERSTATE COMMERCE COMMISSION CONCLUDED
THAT A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY SHOULD ISSUE TO
BRASWELL MOTOR FREIGHT LINES, INC., AUTHORIZING BRASWELL TO EXTEND ITS
MOTOR CARRIER SERVICES TO STATED POINTS.  THIS CONCLUSION WAS BASED
UPON THE COMMISSION'S FINDING THAT EXISTING SERVICE TO THOSE POINTS WAS
INADEQUATE TO SERVE PUBLIC NEEDS.  UPON SUIT BY SEVERAL COMPETING MOTOR
CARRIERS SERVING THE AREA, THE DISTRICT COURT ENJOINED THE COMMISSION
FROM PROCEEDING WITH THE GRANT TO BRASWELL ON THE GROUND THAT THE
COMMISSION HAD FAILED TO MAKE ADEQUATE FINDINGS AND THAT IT HAD FAILED
TO AFFORD EXISTING CARRIERS AN OPPORTUNITY TO RECTIFY DEFICIENCIES IN
THEIR SERVICE.  UPON REMAND, THE COMMISSION DID NOT TAKE FURTHER
EVIDENCE, BUT IT MADE ADDITIONAL FINDINGS IN CONSIDERABLE DETAIL.  IT
AGAIN CONCLUDED THAT SHIPPERS AND RECEIVERS WERE HAMPERED BY THE
INADEQUACY OF EXISTING SERVICE, AND IT HELD THAT, DESPITE NUMEROUS
COMPLAINTS, EXISTING CARRIERS HAD NOT DEMONSTRATED THAT THEY COULD BE
DEPENDED UPON TO FURNISH ADEQUATE SERVICE. 

THE COMPETING CARRIERS THEN FILED IN THE DISTRICT COURT A MOTION
UNDER THE ALL-WRITS ACT, 28 U.S.C. SEC 1651, CONTENDING THAT THE
COMMISSION HAD DISREGARDED THE PRIOR OPINION AND ORDER OF THE COURT AND
ASKING THAT THE COURT ENFORCE ITS PRIOR JUDGMENT.  THE DISTRICT COURT
AGREED.  IT STATED THAT IT WAS THE COMMISSION'S "INVARIABLE RULE" THAT
NO CERTIFICATE WOULD ISSUE TO ADD A CARRIER TO THOSE SERVING AN AREA
WITHOUT FIRST FURNISHING EXISTING CARRIERS AN OPPORTUNITY TO IMPROVE
THE SERVICE.  IT REFERRED TO THIS AS A "RULE OF PROPERTY" OPERATING IN
FAVOR OF EXISTING CARRIERS.  ACCORDINGLY, IT PERMANENTLY ENJOINED THE
COMMISSION FROM ISSUING A CERTIFICATE OF CONVENIENCE AND NECESSITY TO
BRASWELL "UNLESS AND UNTIL THE APPELLEES - THE EXISTING MOTOR CARRIERS
ARE FIRST AFFORDED A REASONABLE OPPORTUNITY TO FURNISH SUCH SERVICE
...  ." 

THE UNITED STATES AND THE COMMISSION, AND BRASWELL, APPEALED THE
JUDGMENT TO THIS COURT UNDER THE PROVISIONS OF 28 U.S.C. SECS. 1253 AND
2101(B).* 

*APPELLEES URGE THAT THE APPEALS ARE UNTIMELY BECAUSE THEY WERE FILED
MORE THAN 60 DAYS AFTER THE DISTRICT COURT'S INITIAL JUDGMENT.  THIS IS
PALPABLY UNTENABLE BECAUSE, WITHOUT PASSING UPON THE APPROPRIATENESS OF
THE ALL-WRITS PROCEDURE WHICH APPELLEES UTILIZED, IT IS CLEAR THAT THE
APPEALS WERE PROPERLY TAKEN FROM THE DISTRICT COURT'S SECOND ORDER
ENTERED AFTER THE COMMISSION DECISION UPON REMAND. 

THE DISTRICT COURT ERRED IN HOLDING THAT IT IS THE "INVARIABLE RULE"
OF THE COMMISSION TO GRANT EXISTING CARRIERS AN OPPORTUNITY TO REMEDY
DEFICIENCIES IN SERVICE, AND IN HOLDING THAT CARRIERS HAVE A PROPERTY
RIGHT TO SUCH OPPORTUNITY BEFORE A NEW CERTIFICATE MAY BE ISSUED UPON A
LAWFUL FINDING OF PUBLIC CONVENIENCE AND NECESSITY PURSUANT TO THE
STATUTE.  THE COMMISSION'S POWER IS NOT SO CIRCUMSCRIBED.  NO SUCH
LIMITATION HAS BEEN ESTABLISHED BY THE COMMISSION'S OWN DECISIONS OR BY
JUDICIAL DETERMINATIONS.  IT IS, OF COURSE, TRUE THAT THE COMMISSION
SHOULD CONSIDER THE PUBLIC INTEREST IN MAINTAINING THE HEALTH AND
STABILITY OF EXISTING CARRIERS, SEE UNITED STATES V. DRUM, 368 U.S.
370, 374 (1962); BUT IT IS ALSO TRUE THAT, UPON THE BASIS OF
APPROPRIATE FINDINGS, "THE COMMISSION MAY AUTHORIZE THE CERTIFICATE
EVEN THOUGH THE EXISTING CARRIERS MIGHT ARRANGE TO FURNISH SUCCESSFULLY
THE PROJECTED SERVICE."  ICC V. PARKER, 326 U.S. 60, 70 (1945); SEE
SCHAFFER TRANSPORTATION CO. V. UNITED STATES, 355 U.S. 83, 90-91
(1957).  ACCORDINGLY, WE REVERSE AND REMAND FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :

















BROOKS V. FLORIDA 389 U.S. 413 


NO. 14, MISC.  DECIDED DECEMBER 18, 1967.  - CERTIORARI GRANTED;
REVERSED. 


CONFESSION GIVEN TO INVESTIGATING OFFICER BY PETITIONER, A PRISONER,
AFTER PETITIONER WAS HELD TWO WEEKS UNDER BARBARIC CONDITIONS IN
"SWEATBOX" PUNISHMENT CELL HELD INVOLUNTARY AND ITS USE TO CONVICT HIM
OF PRISON RIOTING UNCONSTITUTIONAL. 

BROOKS V. FLORIDA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
FLORIDA, FIRST DISTRICT. 

PER CURIAM. 

PETITIONER, BENNIE BROOKS, WAS CONVICTED OF PARTICIPATING IN A RIOT
IN THE FLORIDA PRISON WHERE HE WAS AN INMATE AND WAS SENTENCED TO A
TERM OF NINE YEARS AND EIGHT MONTHS TO RUN CONSECUTIVELY WITH THE
SENTENCE HE WAS ALREADY SERVING.  HIS CONVICTION WAS AFFIRMED WITHOUT
OPINION BY THE FLORIDA DISTRICT COURT OF APPEAL, FIRST DISTRICT, AND
HIS PETITION FOR WRIT OF CERTIORARI FILED IN THE FLORIDA SUPREME COURT
WAS DISMISSED, ALSO WITHOUT OPINION. 

THE DISTURBANCE IN THE PRISON OCCURRED ON MAY 27, 1965.  THE SAME DAY
BROOKS WAS ORDERED CONFINED IN A PUNISHMENT CELL FOR 35 DAYS WITH TWO
OTHER PRISONERS ALSO ACCUSED OF THE RIOTING.  BROOKS SAYS THE CELL WAS
7 FEET LONG AND 6 1/2 FEET WIDE; A WITNESS FOR THE STATE TESTIFIED IT
WAS 6 FEET LONGER.  THIS MINOR DIFFERENCE ASIDE, THE PARTIES AGREE THAT
THE PUNISHMENT CELL HAD NO EXTERNAL WINDOW, THAT IT CONTAINED NO BED OR
OTHER FURNISHINGS OR FACILITIES EXCEPT A HOLE FLUSH WITH THE FLOOR
WHICH SERVED AS A COMMODE, AND THAT DURING THE FIRST 14 DAYS HE LIVED
IN THIS CELL BROOKS' ONLY CONTACT WITH THE OUTSIDE WAS AN UNSPECIFIED
NUMBER OF INTERVIEWS WITH THE PRISON'S INVESTIGATING OFFICER.  IT IS
ALSO AGREED THAT WHILE SO CONFINED BROOKS WAS FED A "RESTRICTED DIET"
CONSISTING, ACCORDING TO THE TESTIMONY OF THE INVESTIGATING OFFICER, OF
"PEAS AND CARROTS IN A SOUP FORM" THREE TIMES DAILY.  BROOKS' MORE
DETAILED DESCRIPTION OF THIS CONCOCTION - "THEY FED US FOUR OUNCES OF
SOUP THREE TIMES A DAY AND EIGHT OUNCES OF WATER" - WAS NOT
CONTROVERTED, NOR WAS HIS TESTIMONY THAT HE WAS STRIPPED NAKED BEFORE
BEING THROWN INTO THE CELL.  ON THE 15TH DAY OF CONFINEMENT UNDER THESE
CONDITIONS, BROOKS WAS TAKEN FROM THE PUNISHMENT CELL AND AGAIN BROUGHT
DIRECTLY TO THE INVESTIGATING OFFICER.  THIS TIME, SHORTLY AFTER
QUESTIONING BEGAN, BROOKS CONFESSED AND DICTATED HIS STATEMENT INTO A
TAPE RECORDER.  THE RECORDING WAS INTRODUCED AT TRIAL.  BROOKS SAYS
THAT HE WAS BRUTALLY BEATEN BY ONE OFFICER WHILE THE OTHER WAS TAKING
HIS STATEMENT.  HOWEVER, WE DO NOT CONSIDER THIS CLAIM BECAUSE THE
OFFICER DENIED IT AND THE JUDGE DISBELIEVED BROOKS' TESTIMONY.  THE
JUDGE ALSO CONCLUDED THAT THE CONFESSION WAS VOLUNTARY.  WE DISAGREE. 

PUTTING TO ONE SIDE QUIBBLES OVER THE DIMENSIONS OF THE WINDOWLESS
SWEATBOX INTO WHICH BROOKS WAS THROWN NAKED WITH TWO OTHER MEN, WE
CANNOT ACCEPT HIS STATEMENT AS THE VOLUNTARY EXPRESSION OF AN UNCOERCED
WILL.  FOR TWO WEEKS THIS MAN'S HOME WAS A BARREN CAGE FITTED ONLY WITH
A HOLE IN ONE CORNER INTO WHICH HE AND HIS CELL MATES COULD DEFECATE. 
FOR TWO WEEKS HE SUBSISTED ON A DAILY FARE OF 12 OUNCES OF THIN SOUP
AND EIGHT OUNCES OF WATER.  FOR TWO FULL WEEKS HE SAW NOT ONE FRIENDLY
FACE FROM OUTSIDE THE PRISON, BUT WAS COMPLETELY UNDER THE CONTROL AND
DOMINATION OF HIS JAILERS.  THESE STARK FACTS BELIE ANY CONTENTION THAT
THE CONFESSION EXTRACTED FROM HIM WITHIN MINUTES AFTER HE WAS BROUGHT
FROM THE CELL WAS NOT TAINTED BY THE 14 DAYS HE SPENT IN SUCH AN
OPPRESSIVE HOLE.  IN A LONG LINE OF CASES BEGINNING WITH BROWN V.
MISSISSIPPI, 297 U.S. 278 (1936), AND REAFFIRMED LAST TERM IN CLEWIS V.
TEXAS, 386 U.S. 707 (1967), WE HAVE HELD THAT THE CONSTITUTION DOES NOT
PERMIT PROSECUTORIAL USE OF AN INVOLUNTARY CONFESSION.  WE HAVE ALSO
ASSERTED REPEATEDLY THAT, IN ADJUDICATING THE QUESTION OF
VOLUNTARINESS, "WE CANNOT ESCAPE THE RESPONSIBILITY OF MAKING OUR OWN
EXAMINATION OF THE RECORD."  SPANO V. NEW YORK, 360 U.S. 315, 316
(1959).  SEE HAYNES V. WASHINGTON, 373 U.S. 503, 515 (1963); CHAMBERS
V. FLORIDA, 309 U.S. 227, 228-229 (1940).  THE RECORD IN THIS CASE
DOCUMENTS A SHOCKING DISPLAY OF BARBARISM WHICH SHOULD NOT ESCAPE THE
REMEDIAL ACTION OF THIS COURT.  ACCORDINGLY, WE REVERSE THE JUDGMENT
BELOW.* 

*BECAUSE WE HOLD THAT THE USE AT TRIAL OF THE INVOLUNTARY CONFESSION
REQUIRES REVERSAL OF PETITIONER'S CONVICTION, WE FIND IT UNNECESSARY TO
REACH OTHER ISSUES RAISED BY HIM.  THUS, WE EXPRESS NO VIEWS ON
PETITIONER'S CONTENTIONS THAT (1) HE WAS DENIED A FAIR TRIAL BECAUSE
THE RESIDENTS OF THE RURAL COUNTY WHERE VENUE WAS SET WERE HOSTILE
TOWARD INMATES OF THE PRISON AND (2) HE WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE HIS APPOINTED ATTORNEY WAS FORCED TO
TRIAL WITHOUT AN OPPORTUNITY TO PREPARE TO REPRESENT PETITIONER AND THE
12 CODEFENDANTS TRIED WITH HIM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORI ARE GRANTED.  THE JUDGMENT OF THE FLORIDA DISTRICT
COURT OF APPEAL, FIRST DISTRICT, MUST BE AND HEREBY IS REVERSED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :





DAMICO V. CALIFORNIA 389 U.S. 416 


NO. 629, MISC.  DECIDED DECEMBER 18, 1967.  - REVERSED AND REMANDED. 


APPELLANTS' SUIT UNDER THE CIVIL RIGHTS ACT, CHALLENGING THE
CALIFORNIA WELFARE LAW AND REGULATIONS AS UNCONSTITUTIONAL, WAS
DISMISSED BY A THREE-JUDGE DISTRICT COURT FOR FAILURE "TO EXHAUST
ADEQUATE ADMINISTRATIVE REMEDIES."  HELD:  ONE OF THE ACT'S UNDERLYING
PURPOSES WAS "TO PROVIDE A REMEDY IN THE FEDERAL COURTS SUPPLEMENTARY
TO ANY REMEDY ANY STATE MIGHT HAVE," AND "RELIEF UNDER THE ACT MAY NOT
BE DEFEATED BECAUSE RELIEF WAS NOT SOUGHT UNDER STATE LAW WHICH
PROVIDED AN ADMINISTRATIVE REMEDY."  MCNEESE V. BOARD OF EDUCATION, 373
U.S. 668. 

DAMICO ET AL. V. CALIFORNIA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. 

APPELLANTS, WELFARE CLAIMANTS UNDER CALIFORNIA WELFARE AND
INSTITUTIONS CODE SECS 11250, 11254, AND REGULATION C-161.20
THEREUNDER, SOUGHT DAMAGES, A DECLARATORY JUDGMENT OF
UNCONSTITUTIONALITY, AND TEMPORARY AND PERMANENT INJUNCTIVE RELIEF IN
THIS SUIT UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. SEC 1983, 28 U.S.C. SEC
1343.  THEIR COMPLAINT ALLEGES THAT THE STATUTE AND REGULATION ARE
DISCRIMINATORY AND THAT THE APPELLEES, IN ADMINISTERING THEM AND IN
APPLYING THEM TO APPELLANTS, DEPRIVED APPELLANTS OF EQUAL RIGHTS
SECURED BY THE UNITED STATES CONSTITUTION.  THE THREE-JUDGE DISTRICT
COURT DISMISSED THE COMPLAINT SOLELY BECAUSE "IT APPEARED TO THE COURT
THAT ALL OF THE PLAINTIFFS HAD FAILED TO EXHAUST ADEQUATE
ADMINISTRATIVE REMEDIES."  THIS WAS ERROR.  IN MCNEESE V. BOARD OF
EDUCATION, 373 U.S. 668, NOTING THAT ONE OF THE PURPOSES UNDERLYING THE
CIVIL RIGHTS ACT WAS "TO PROVIDE A REMEDY IN THE FEDERAL COURTS
SUPPLEMENTARY TO ANY REMEDY ANY STATE MIGHT HAVE," ID., AT 672, WE HELD
THAT "RELIEF UNDER THE CIVIL RIGHTS ACT MAY NOT BE DEFEATED BECAUSE
RELIEF WAS NOT FIRST SOUGHT UNDER STATE LAW WHICH PROVIDED AN
ADMINISTRATIVE REMEDY," ID., AT 671.  SEE MONROE V. PAPE, 365 U.S. 167,
180-183.  WE INTIMATE NO VIEW UPON THE MERITS OF APPELLANTS'
ALLEGATIONS NOR UPON THE OTHER GROUNDS NOT PASSED UPON BY THE DISTRICT
COURT. 

THE JUDGMENT OF THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA IS REVERSED, AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

MR. JUSTICE HARLAN, DISSENTING. 

CALIFORNIA'S AID TO FAMILIES WITH DEPENDENT CHILDREN PROGRAM PROVIDES
WELFARE ASSISTANCE TO MOTHERS AND CHILDREN RENDERED DESTITUTE THROUGH
DESERTION BY OR SEPARATION FROM THE FATHERS OF THE CHILDREN.  THE LAW
REQUIRES THAT, UNLESS A SUIT FOR DIVORCE HAS BEEN FILED, THE DESERTION
OR SEPARATION BE OF AT LEAST THREE MONTHS' DURATION BEFORE AFDC AID
WILL BE GRANTED. 

APPELLANTS WERE INFORMED BY A SOCIAL WORKER THAT, NO SUIT FOR DIVORCE
HAVING BEEN FILED, THEY COULD NOT RECEIVE AFDC AID BEFORE THE END OF
THE THREE-MONTH PERIOD; THEY THEN BROUGHT THIS SUIT FOR A DECLARATION
THAT THE THREE-MONTH REQUIREMENT VIOLATED THE FEDERAL CONSTITUTION. 
THE DISTRICT COURT, WITHOUT REACHING THE QUESTION WHETHER IT SHOULD
"ABSTAIN" PENDING APPROPRIATE STATE PROCEEDINGS FOR RELIEF, AND WITHOUT
REACHING THE MERITS, DISMISSED ON THE GROUND THAT THE PLAINTIFFS HAD
FAILED TO EXHAUST "ADEQUATE ADMINISTRATIVE REMEDIES." 

THIS COURT, WITHOUT PLENARY CONSIDERATION AND WITHOUT STATING ITS
REASONS, NOW REVERSES THE DISTRICT COURT'S DISMISSAL, CITING MCNEESE V.
BOARD OF EDUCATION, 373 U.S. 668.  IN MCNEESE, THE COURT HELD THAT
NEGRO STUDENTS, SEEKING RELIEF FROM ALLEGED SCHOOL RACIAL SEGREGATION,
DID NOT HAVE TO PURSUE AND EXHAUST CERTAIN ADMINISTRATIVE REMEDIES
AVAILABLE UNDER STATE LAW BEFORE BRINGING THEIR FEDERAL ACTION. 
ALTHOUGH I DID NOT AT THE TIME AND DO NOT NOW FULLY UNDERSTAND THE
COURT'S OPINION IN MCNEESE,* THE NET RESULT OF THE CASE AS I SEE IT WAS
THAT THE RIGHT TO ASSERT, IN A FEDERAL COURT, THAT STATE OFFICIALS HAD
ACTED IN A MANNER DEPRIVING THE PLAINTIFF OF CLEAR CONSTITUTIONAL
RIGHTS COULD NOT BE DELAYED BY THE INTERPOSITION OF INTENTIONALLY OR
UNINTENTIONALLY INADEQUATE STATE REMEDIES FOR THE ALLEGED
DISCRIMINATION. 

*THE SOURCE OF MY DIFFICULTY IS A COMPOUND OF THE OCCASIONAL USE OF
LANGUAGE BROADER THAN WAS NECESSARY OR WARRANTED BY THE FACTS AS THE
MAJORITY VIEWED THEM, AND OF MY OWN DISAGREEMENT WITH THE MAJORITY'S
VIEW OF THE FACTS.  IN MONROE V. PAPE, 365 U.S. 167, IN AN OPINION
WHICH I JOINED, THE COURT DECLARED THAT ONE COMPLAINING OF UNLAWFUL
SEARCH AND SEIZURE BY STATE OFFICIALS COULD SUE THEM IN A FEDERAL COURT
UNDER 42 U.S.C. SEC 1983, NOTWITHSTANDING THE AVAILABILITY OF SIMILAR
REMEDIES UNDER STATE LAW.  THAT CASE DID NOT SAY THAT ONE WHO IS
ENGAGED IN A COURSE OF DEALING WITH AN ADMINISTRATIVE AGENCY MAY BYPASS
THE ORDERLY PROCEDURES ESTABLISHED BY THAT AGENCY AND THE PROCEDURES
FOR REVIEW OF AGENCY ACTION AND SUE ITS MEMBERS INDIVIDUALLY AT ANY
STAGE.  IN MCNEESE IT WAS THE PREVAILING VIEW, WITH WHICH I DISAGREED
UNDER THE CIRCUMSTANCES, THAT THE ADMINISTRATIVE PROCEDURES ESTABLISHED
BY THE STATE WERE INADEQUATE FOR THE VINDICATION OF FEDERAL RIGHTS. 
READING MONROE TO HAVE INTERPRETED 42 U.S.C. SEC 1983 "TO PROVIDE A
REMEDY WHERE STATE LAW WAS INADEQUATE, AND 'TO PROVIDE A FEDERAL REMEDY
WHERE THE STATE REMEDY, THOUGH ADEQUATE IN THEORY, WAS NOT AVAILABLE IN
PRACTICE,'" 373 U.S., AT 672, THE COURT CONCLUDED THAT "WHEN FEDERAL
RIGHTS ARE SUBJECT TO SUCH TENUOUS PROTECTION, PRIOR RESORT TO A STATE
PROCEEDING IS NOT NECESSARY."  ID., AT 676. 

THE MAJORITY OPINION IN MCNEESE ALSO, HOWEVER, ATTRIBUTED TO MONROE
THE ESTABLISHMENT OF THE PRINCIPLE THAT 42 U.S.C. SEC 1983 PROVIDES A
"SUPPLEMENTARY" REMEDY TO ANY A STATE MIGHT HAVE.  THIS LANGUAGE IS NOW
INTERPRETED BY THE COURT TO MEAN THAT THERE CAN BE NO REQUIREMENT THAT
A PERSON DEALING WITH AN ADMINISTRATIVE AGENCY CONTINUE TO DEAL WITH IT
IN AN ORDERLY FASHION, NO MATTER HOW ADEQUATE HIS REMEDY THERE.  IF
THIS IS WHAT THE MAJORITY OPINION IN MCNEESE MEANT TO SAY, ITS DICTUM
WAS GRATUITOUS BOTH IN THE SENSE THAT IT WAS NOT COMPELLED BY THE FACTS
AS THE COURT VIEWED THEM AND IN THE SENSE THAT IT WAS AN INCORRECT
INTERPRETATION OF MONROE. 

IF THAT IS A CORRECT DESCRIPTION OF THE EXHAUSTION PROBLEM IN
MCNEESE, IT BEARS LITTLE RELATION TO THE EXHAUSTION QUESTION HERE. 
STATE AFDC RELIEF WAS CREATED PURSUANT TO THE PROVISIONS OF THE FEDERAL
SOCIAL SECURITY ACT, 49 STAT. 627, 42 U.S.C. SEC 601 ET SEQ. THE
FEDERAL GOVERNMENT PAYS THE MAJOR SHARE OF THE COST OF STATE AID, SEE
42 U.S.C. SEC 603, AND IN RETURN CLOSELY SUPERVISES BOTH HOW IT SHALL
BE ADMINISTERED AND WHAT REMEDIES SHALL BE AVAILABLE TO THOSE WHO HAVE
COMPLAINTS ABOUT ITS OPERATION.  EACH STATE RECEIVING FEDERAL
ASSISTANCE (WHICH INCLUDES CALIFORNIA) MUST FORMULATE AND SUBMIT TO THE
SECRETARY OF HEALTH, EDUCATION, AND WELFARE, FOR HIS APPROVAL, A PLAN
OF OPERATION OF ITS AFDC PROGRAM.  42 U.S.C. SEC 602.  IN PARTICULAR,
THE PLAN MUST PROVIDE THAT "AID TO FAMILIES WITH DEPENDENT CHILDREN
...  SHALL BE FURNISHED WITH REASONABLE PROMPTNESS TO ALL ELIGIBLE
INDIVIDUALS," 42 U.S.C. SEC 602(A)(9), AND MUST "PROVIDE FOR GRANTING
...  A FAIR HEARING BEFORE THE STATE AGENCY (WHOSE CREATION IS REQUIRED
BY A SEPARATE PROVISION, 42 U.S.C. SEC. 602(A)(3)) TO ANY INDIVIDUAL
WHOSE CLAIM FOR AID TO FAMILIES WITH DEPENDENT CHILDREN IS DENIED OR IS
NOT ACTED UPON WITH REASONABLE PROMPTNESS."  42 U.S.C. SEC. 602(A)(4). 
THE CALIFORNIA PLAN APPROVED BY THE SECRETARY APPARENTLY INCLUDES BOTH
CALIFORNIA'S THREE-MONTH REQUIREMENT AND CALIFORNIA'S HEARING
PROCEDURE. 

THE COURT SIMPLY IGNORES THE HIGHLY SUCCESSFUL FEDERAL-STATE WORKING
RELATIONSHIP CREATED BY CONGRESS IN THIS AREA.  THE RIGHT OF THESE
APPELLANTS TO RECEIVE AFDC FUNDS INVOLVES NOT ONLY QUESTIONS OF STATE
LAW, BUT ALSO THE PROPRIETY OF THAT LAW UNDER FEDERAL STATUTORY LAW. 
FOR THE DETERMINATION OF THESE QUESTIONS CONGRESS HAS SPECIFIED A STATE
FORUM IN THE FIRST INSTANCE.  TODAY'S HOLDING, MADE WITHOUT BENEFIT OF
BRIEFS AND ORAL ARGUMENT AND ON A SKIMPY RECORD, THAT 42 U.S.C. SEC
1983 MAY BE USED TO BYPASS 42 U.S.C. SEC 602 IS A DISSERVICE TO BOTH OF
THESE IMPORTANT STATUTES. 

I WOULD AFFIRM THE JUDGMENT BELOW. 
..END :















ROCKEFELLER V. WELLS 389 U.S. 421 


NO. 691.  DECIDED DECEMBER 18, 1967.  - 273 F. SUPP. 984, AFFIRMED. 


ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL. V. WELLS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN, DISSENTING. 

THIS ACTION WAS BROUGHT BY APPELLEES UNDER THE CIVIL RIGHTS ACT, 42
U.S.C. SECS 1983, 1988, FOR DECLARATORY AND OTHER RELIEF.  THEIR
COMPLAINT ALLEGED THAT NEW YORK'S CONGRESSIONAL DISTRICTING STATUTE
DOES NOT CONFORM TO THE REQUIREMENTS OF ART. I, SEC 2, OF THE UNITED
STATES CONSTITUTION, AS THOSE REQUIREMENTS ARE DEFINED IN WESBERRY V.
SANDERS, 376 U.S. 1.  A THREE-JUDGE COURT WAS CONVENED. 

THE COURT FOUND, ON THE BASIS OF 1960 CENSUS STATISTICS, THAT THE
POPULATION OF ONE OF NEW YORK'S 41 CONGRESSIONAL DISTRICTS VARIED FROM
THE AVERAGE POPULATION OF THE DISTRICTS BY 15.1%, AND THAT 12 OTHER
DISTRICTS VARIED FROM THE POPULATION AVERAGE BY AS MUCH AS 10%.  IT
CONCLUDED THAT SUCH A VARIATION FROM AVERAGE, WITHOUT A SUITABLE
EXPLANATION, "VIOLATES CONSTITUTIONAL REQUIREMENTS."  273 F. SUPP. 984,
AT 989.  THE COURT NOTED THAT THERE HAVE BEEN "SUBSTANTIAL" POPULATION
CHANGES IN THESE DISTRICTS SINCE 1960, AND THAT COMPLETE ACCURACY IN
REDISTRICTING MUST AWAIT THE RESULTS OF THE 1970 CENSUS, BUT REASONED
THAT A SUITABLE COMPROMISE WOULD BE TO REQUIRE REDISTRICTING
IMMEDIATELY, PREMISED ON THE BEST POPULATION FIGURES NOW AVAILABLE. 
REVISIONS COULD THEN BE MADE WHEN THE 1970 CENSUS STATISTICS WERE
RELEASED.  THIS COURT SIMPLY AFFIRMS, WITHOUT ELABORATION OR OPINION. 

THERE ARE, IN MY OPINION, TWO PRINCIPAL ISSUES HERE WORTHY OF
PLENARY CONSIDERATION.  FIRST, THE DISTRICT COURT THOUGHT IT "TOO CLEAR
FOR DEBATE" THAT THIS DISTRICTING STATUTE "VIOLATES CONSTITUTIONAL
REQUIREMENTS AS ENUNCIATED BY THE SUPREME COURT."  273 F. SUPP., AT
989.  THERE ARE FEW ISSUES IN REAPPORTIONMENT CASES THAT ARE CLEAR
BEYOND DEBATE, AND, WITH RESPECT, THE INVALIDITY OF THIS STATUTE IS
CERTAINLY NOT AMONG THEM.  IT IS TRUE THAT VARIATIONS OF AS MUCH AS
18.28% WERE DISAPPROVED IN SWANN V. ADAMS, 385 U.S. 440, BUT THE COURT
THERE ALSO RE-EMPHASIZED THAT THE APPROVAL OR DISAPPROVAL OF THE
VARIATIONS IN ONE STATE "HAS LITTLE BEARING ON THE VALIDITY OF A
SIMILAR VARIATION IN ANOTHER STATE."  ID., AT 445.  AND SEE REYNOLDS V.
SIMS, 377 U.S. 533, 578.  THE IMPOSSIBILITY OF CALCULATING THE PROPER
RESULT IN THESE CASES FROM NUMERICAL VARIATIONS IS ILLUSTRATED BY
TOOMBS V. FORTSON, 241 F. SUPP. 65.  THE DISTRICT COURT THERE SAID
SPECIFICALLY THAT "WE WILL BASE ANY TEST AS TO THE REASONABLENESS OF
VARIANCES ON THE DEPARTURE FIGURE OF 15 PERCENT."   ID., AT 70.  THIS
COURT SIMPLY AFFIRMED WITHOUT OPINION.  384 U.S. 210.  SEE ALSO MOORE
V. MOORE, 246 F. SUPP. 578, 582.  YET IN THIS CASE, IN WHICH VARIATIONS
NO GREATER THAN 15.1% ARE IN ISSUE, THE COURT AGAIN SUMMARILY AFFIRMS. 

PRESUMABLY THE SIZE OF THE NUMERICAL VARIATION IS NOT ALONE DECISIVE,
(FN1)  BUT IF THE "PARTICULAR CIRCUMSTANCES OF THE CASE," REYNOLDS V.
SIMS, SUPRA, AT 578, SWANN V. ADAMS, SUPRA, AT 445, MAY BE CRUCIAL TO
THE VALIDITY OF DISTRICTING STATUTES, THEN SURELY THE COURT SHOULD
ENDEAVOR TO DEFINE WHAT SUCH CIRCUMSTANCES ARE, AND TO INDICATE HOW
THEY ARE RELEVANT.  INSTEAD, THE COURT MORE AND MORE OFTEN DISPOSES OF
REAPPORTIONMENT CASES SUMMARILY, SEE E.G., TOOMBS V. FORTSON, SUPRA;
DUDDLESTON V. GRILLS, 385 U.S. 455; KIRKPATRICK V. PREISLER, 385 U.S.
450; LUCAS V. RHODES, ANTE, P. 212; AND WHEN THE COURT DOES ISSUE AN
OPINION, IT IS CONTENT SIMPLY TO RECITE THAT SUCH CIRCUMSTANCES MAY BE
RELEVANT, WITHOUT UNDERTAKING ANY ELUCIDATION.  SEE, E.G., SWANN V.
ADAMS, SUPRA.  ALL THIS HAS THE EFFECT OF LEAVING THE STATE
LEGISLATURES,  (FN2)  THE LOWER COURTS, AND EVEN CONGRESS  (FN3)
WITHOUT MEANINGFUL GUIDANCE. 

SECOND, THE CONFUSION CREATED BY THE COURT'S RETICENCE IS COMPOUNDED,
IN CASES IN WHICH IT IS HELD THAT A DISTRICTING STATUTE DOES NOT
SATISFY CONSTITUTIONAL REQUIREMENTS, BY UNCERTAINTY AS TO THE
APPROPRIATE NEXT STEP.  SEE, E.G., LUCAS V. RHODES, SUPRA.  THE
DISTRICT COURT HERE NOTED THAT THE COURT'S CASES PROVIDED "LITTLE
GUIDANCE OR HELP," BUT CONCLUDED, NONETHELESS, THAT IMMEDIATE
REDISTRICTING SHOULD BE ORDERED, BASED ON THE BEST AVAILABLE POPULATION
FIGURES.  IT THOUGHT THAT THIS EXPEDIENT WAS IN THE PATTERN SET BY
SWANN V. ADAMS, 383 U.S. 210.  SWANN, HOWEVER, WAS MERELY A BRIEF PER
CURIAM OPINION, WHICH DID NOT PURPORT TO ESTABLISH ANY GENERAL RULE ON
APPROPRIATE REMEDIES.  AS THE ELECTIONS OF 1968 APPROACH, IT SEEMS TO
ME THAT THE TIME HAS COME FOR THIS COURT TO PROVIDE CLEARER GUIDANCE TO
THE LOWER COURTS ON THE PROPER REMEDY IN REAPPORTIONMENT CASES.  MORE
PARTICULARLY, SOME INDICATION SHOULD BE GIVEN AS TO WHAT PART, IF ANY,
1960 CENSUS FIGURES ARE TO PLAY, ALONE OR IN COMBINATION WITH LATER,
ALBEIT INCOMPLETE OR UNVERIFIED, POPULATION FIGURES.  SEE LUCAS V.
RHODES, SUPRA. 

I WOULD NOTE PROBABLE JURISDICTION, AND SET THE CASE FOR ARGUMENT. 

FN1  I NOTE, HOWEVER, THAT THE DISTRICT COURT IN PREISLER V.
SECRETARY OF STATE OF MISSOURI, 257 F. SUPP. 953, SAID SPECIFICALLY
THAT "POPULATION AND POPULATION ALONE IS THE SOLE STANDARD FOR
CONGRESSIONAL REPRESENTATION."  ID., AT 973.  THIS COURT AFFIRMED
WITHOUT OPINION.  385 U.S. 450.  SEE ALSO BUSH V. MARTIN, 224 F. SUPP.
499, 511, AFF'D, 376 U.S. 222. 

FN2  THE NEW YORK LEGISLATURE, FOR EXAMPLE, MADE CAREFUL EFFORTS TO
COMPLY WITH THE CONSTITUTIONAL REQUIREMENTS, AS THEY HAD BEEN
ENUNCIATED BY THIS COURT.  THE JOINT LEGISLATIVE COMMITTEE ON
REAPPORTIONMENT THUS EXPRESSLY RECOGNIZED "THE ABSENCE OF FEDERAL AND
STATE CONSTITUTIONAL AND STATUTORY STANDARDS," BUT CONCLUDED THAT "THE
MOST IMPORTANT STANDARD IS SUBSTANTIAL EQUALITY OF POPULATION." 
INTERIM REPORT OF THE JOINT LEGISLATIVE COMMITTEE ON REAPPORTIONMENT,
1961 N.Y. LEG.  DOC. NO. 45, P. 4.  IT ADDED THAT "WHILE EXACT EQUALITY
OF POPULATION IS THE IDEAL, IT IS AN IDEAL THAT, FOR PRACTICAL REASONS,
CAN NEVER BE ATTAINED.  SOME VARIATION FROM IT WILL ALWAYS BE
NECESSARY.  THE QUESTION ARISES AS TO WHAT IS A PERMISSIBLE FAIR
VARIATION."  IBID. 

FN3  THE HOUSE COMMITTEE ON THE JUDICIARY, FOR EXAMPLE, REPORTED
FAVORABLY IN 1965 ON A BILL WHICH WAS INTENDED TO IMPLEMENT THE
REQUIREMENTS OF WESBERRY V. SANDERS, SUPRA, BY CREATING A SERIES OF
STANDARDS FOR THE APPORTIONMENT OF CONGRESSIONAL DISTRICTS.  THE
COMMITTEE NOTED THAT "THE COURTS ...  HAVE BEEN RELUCTANT TO PRESCRIBE
STANDARDS  ...  ."  H.R.  REP. NO. 140, 89TH CONG., 1ST SESS., 2.  ONE
STANDARD INCLUDED IN THE BILL WAS A MAXIMUM PERMISSIBLE VARIATION OF
15% ABOVE OR BELOW THE AVERAGE POPULATION OF THE CONGRESSIONAL
DISTRICTS WITHIN A STATE.  ID., AT 2-3.  GIVEN THE PRESENT STATE OF THE
LAW IN THIS AREA, IT IS DIFFICULT TO IMAGINE HOW A LEGISLATOR COULD
SENSIBLY DECIDE WHETHER SUCH A MAXIMUM VARIATION SATISFIED APPLICABLE
CONSTITUTIONAL REQUIREMENTS.  INDEED, REPRESENTATIVE KASTENMEIER
DISSENTED FROM THE COMMITTEE'S REPORT, NOTING THAT "THERE IS SERIOUS
DOUBT WHETHER H.R. 5505 CAN, IN LIGHT OF THE WESBERRY CASE, WITHSTAND
CONSTITUTIONAL ATTACK."  ID., AT 5. 
..END :














SIMON V. WHARTON 389 U.S. 425 


NO. 72.  DECIDED DECEMBER 18, 1967.  - 373 F.2D 649, VACATED AND
REMANDED TO DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE CASE AS
MOOT. 


SIMON ET AL. V. WHARTON, TRUSTEE IN BANKRUPTCY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE JOINT MOTION TO VACATE, THE JUDGMENTS OF
THE LOWER COURTS ARE VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WITH
INSTRUCTIONS TO DISMISS THE CASE AS MOOT. 
..END :













SATTERFIELD V. VIRGINIA 389 U.S. 425 


NO. 216.  DECIDED DECEMBER 18, 1967.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED. 


SATTERFIELD V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  MIRANDA V. ARIZONA, 384 U.S. 436. 
..END :
















LANTZ V. LYNDEN TRANSFER 389 U.S. 426 


NO. 623.  DECIDED DECEMBER 18, 1967.  - 263 F. SUPP. 336, AFFIRMED. 


LANTZ, DBA ALASKA TRUCK TRANSPORT, INC. V. LYNDEN TRANSFER, INC., ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF WASHINGTON. 

PER CURIAM. 

THE MOTION OF DOUGLAS LANTZ FOR LEAVE TO INTERVENE AND FOR OTHER
RELIEF IS DENIED.  THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS
AFFIRMED. 
..END :















BURKE-PARSONS-BOWLBY CORP. V. UNITED STATES 389 U.S. 426 


NO. 711.  DECIDED DECEMBER 18, 1967.  - 268 F. SUPP. 203, AFFIRMED. 


BURKE-PARSONS-BOWLBY CORP. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF WEST VIRGINIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















MAERAS V. CHICAGO, BURLINGTON & QUINCY RAILROAD CO. 389 U.S. 427 


NO. 670.  DECIDED DECEMBER 18, 1967.  - 36 ILL. 2D 585, 224 N.E.2D 248,
APPEAL DISMISSED AND CERTIORARI DENIED. 


ILLINOIS EX REL. MAERAS, TREASURER & EXOFFICIO COLLECTOR OF TAXES OF
MADISON COUNTY V. CHICAGO, BURLINGTON & QUINCY RAILROAD CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















HULSHART V. MARYLAND 389 U.S. 427 


NO. 708, MISC.  DECIDED DECEMBER 18, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HULSHART V. MARYLAND. 

APPEAL FROM THE COURT OF SPECIAL APPEALS OF MARYLAND. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MOSES V. WASHINGTON 389 U.S. 428 


NO. 246.  DECIDED DECEMBER 18, 1967.  - 70 WASH. 2D 282, 422 P.2D 775,
APPEAL DISMISSED AND CERTIORARI DENIED. 


MOSES ET AL. V. WASHINGTON ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










UNITED STATES V. ROBEL 389 U.S. 258 


NO. 8.  ARGUED NOVEMBER 14, 1966.  - REARGUED OCTOBER 9, 1967.  -
DECIDED DECEMBER 11, 1967  - AFFIRMED. 


APPELLEE, A MEMBER OF THE COMMUNIST PARTY (WHICH HAD BEEN ORDERED TO
REGISTER AS A COMMUNIST-ACTION ORGANIZATION UNDER THE SUBVERSIVE
ACTIVITIES CONTROL ACT) REMAINED AN EMPLOYEE AT A SHIPYARD AFTER THE
SECRETARY OF DEFENSE HAD DESIGNATED IT A "DEFENSE FACILITY" UNDER THE
ACT.  PETITIONER WAS THEREAFTER INDICTED UNDER SEC. 5(A)(1)(D) OF THE
ACT FOR HAVING "UNLAWFULLY AND WILLFULLY ENGAGED" IN EMPLOYMENT AT THE
SHIPYARD WITH KNOWLEDGE OF THE OUTSTANDING ORDER AGAINST THE PARTY AND
OF THE NOTICE OF THE SECRETARY'S DESIGNATION.  THE DISTRICT COURT,
RELYING ON SCALES V. UNITED STATES, 367 U.S. 203, DISMISSED THE
INDICTMENT FOR FAILURE TO ALLEGE THAT APPELLEE WAS AN ACTIVE PARTY
MEMBER WITH KNOWLEDGE OF AND A SPECIFIC INTENT TO ADVANCE ITS UNLAWFUL
PURPOSES.  THE CASE WAS APPEALED TO THE COURT OF APPEALS AND THEN
CERTIFIED TO THIS COURT AS A DIRECT APPEAL.  HELD:  SECTION 5(A)(1)(D)
IS INVALID SINCE BY ITS OVERBREADTH IT UNCONSTITUTIONALLY ABRIDGES THE
RIGHT OF ASSOCIATION PROTECTED BY THE FIRST AMENDMENT.  PP. 262-268. 

(A)  THE INDISCRIMINATE APPLICATION OF SEC. 5(A)(1)(D) TO ALL TYPES
OF ASSOCIATION WITH COMMUNIST-ACTION GROUPS, REGARDLESS OF THE QUALITY
AND DEGREE OF MEMBERSHIP, MAKES IT IMPOSSIBLE BY LIMITING CONSTRUCTION
TO SAVE THE PROVISION FROM CONSTITUTIONAL INFIRMITY.  CF. APTHEKER V.
SECRETARY OF STATE, 378 U.S. 500.  P. 262. 

(B)  AN INDIVIDUAL'S ASSOCIATIONAL RIGHTS UNDER THE FIRST AMENDMENT
ARE NO LESS BASIC THAN THE RIGHT TO TRAVEL INVOLVED IN APTHEKER.  PP.
262-263. 

(C)  THE FACT THAT THE ACT WAS PASSED PURSUANT TO CONGRESS'"WAR
POWER" TO FURTHER THE "NATIONAL DEFENSE" CANNOT "REMOVE CONSTITUTIONAL
LIMITATIONS SAFEGUARDING ESSENTIAL LIBERTIES," HOME BLDG. & LOAN ASSN.
V. BLAISDELL, 290 U.S. 398, 426.  PP. 263-264. 

(D)  THE STATUTE LITERALLY ESTABLISHES GUILT BY ASSOCIATION ALONE,
WITHOUT ANY NEED TO SHOW THAT AN INDIVIDUAL'S ASSOCIATION POSES THE
THREAT OF SABOTAGE AND ESPIONAGE IN DEFENSE PLANTS AT WHICH THE
LEGISLATION IS DIRECTED.  P. 265. 

(E)  SECTION 5(A)(1)(D) INCLUDES WITHIN ITS COVERAGE NOT ONLY
ASSOCIATION WHICH MAY BE PROSCRIBED CONSISTENTLY WITH THE FIRST
AMENDMENT BUT ALSO ASSOCIATION (SUCH AS THAT OF PASSIVE MEMBERS OF A
DESIGNATED ORGANIZATION, THOSE UNAWARE OF OR DISAGREEING WITH ITS
UNLAWFUL AIMS, AND THOSE IN NONSENSITIVE JOBS AT DEFENSE FACILITIES)
WHICH CANNOT BE SO PROSCRIBED.  PP. 265-266. 

(F)  CONGRESS IN EXERCISING ITS AMPLE POWER TO SAFEGUARD THE NATIONAL
DEFENSE CANNOT EXCEED CONSTITUTIONAL BOUNDS, PARTICULARLY WHERE THE
FIRST AMENDMENT RIGHTS ARE AT STAKE.  PP. 266-268. 

UNITED STATES V. ROBEL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF WASHINGTON. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL DRAWS INTO QUESTION THE CONSTITUTIONALITY OF SEC.
5(A)(1)(D) OF THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, 64 STAT.
992, 50 U.S.C. SEC. 784(A)(1)(D), (FN1) WHICH PROVIDES THAT, WHEN A
COMMUNIST-ACTION ORGANIZATION (FN2) IS UNDER A FINAL ORDER TO REGISTER,
IT SHALL BE UNLAWFUL FOR ANY MEMBER OF THE ORGANIZATION "TO ENGAGE IN
ANY EMPLOYMENT IN ANY DEFENSE FACILITY."  IN COMMUNIST PARTY V.
SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1 (1961), THIS COURT
SUSTAINED AN ORDER OF THE SACB REQUIRING THE COMMUNIST PARTY OF THE
UNITED STATES TO REGISTER AS A COMMUNIST-ACTION ORGANIZATION UNDER THE
ACT.  THE BOARD'S ORDER BECAME FINAL ON OCTOBER 20, 1961.  AT THAT TIME
APPELLEE, A MEMBER OF THE COMMUNIST PARTY, WAS EMPLOYED AS A MACHINIST
AT THE SEATTLE, WASHINGTON, SHIPYARD OF TODD SHIPYARDS CORPORATION.  ON
AUGUST 20, 1962, THE SECRETARY OF DEFENSE, ACTING UNDER AUTHORITY
DELEGATED BY SEC. 5(B) OF THE ACT, DESIGNATED THAT SHIPYARD A "DEFENSE
FACILITY."  APPELLEE'S CONTINUED EMPLOYMENT AT THE SHIPYARD AFTER THAT
DATE SUBJECTED HIM TO PROSECUTION UNDER SEC. 5(A)(1)(D), AND ON MAY 21,
1963, AN INDICTMENT WAS FILED CHARGING HIM WITH A VIOLATION OF THAT
"UNLAWFULLY AND WILLFULLY ENGAGED IN EMPLOYMENT" AT THE SHIPYARD WITH
KNOWLEDGE OF THE OUTSTANDING ORDER AGAINST THE PARTY AND WITH KNOWLEDGE
AND NOTICE OF THE SHIPYARD'S DESIGNATION AS A DEFENSE FACILITY BY THE
SECRETARY OF DEFENSE.  THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF WASHINGTON GRANTED APPELLEE'S MOTION TO DISMISS THE
INDICTMENT ON OCTOBER 4, 1965.  TO OVERCOME WHAT IT VIEWED AS A "LIKELY
CONSTITUTIONAL INFIRMITY" IN SEC. 5(A)(1)(D), THE DISTRICT COURT READ
INTO THAT SECTION "THE REQUIREMENTS OF ACTIVE MEMBERSHIP AND SPECIFIC
INTENT."  BECAUSE THE INDICTMENT FAILED TO ALLEGE THAT APPELLEE'S
COMMUNIST PARTY MEMBERSHIP WAS OF THAT QUALITY, THE INDICTMENT WAS
DISMISSED.   THE GOVERNMENT, UNWILLING TO ACCEPT THAT NARROW
CONSTRUCTION OF SEC. 5(A)(1)(D) AND INSISTING ON THE BROADEST POSSIBLE
APPLICATION OF THE STATUTE, (FN3) INITIALLY TOOK ITS APPEAL TO THE
COURT OF APPEALS FOR THE NINTH CIRCUIT.  ON THE GOVERNMENT'S MOTION,
THE CASE WAS CERTIFIED HERE AS PROPERLY A DIRECT APPEAL TO THIS COURT
UNDER 18 U.S.C. SEC. 3731.  WE NOTED PROBABLE JURISDICTION.  384 U.S.
937.  (FN4)  WE AFFIRM THE JUDGMENT OF THE DISTRICT COURT, BUT ON THE
GROUND THAT SEC. 5(A)(1)(D) IS AN UNCONSTITUTIONAL ABRIDGMENT OF THE
RIGHT OF ASSOCIATION PROTECTED BY THE FIRST AMENDMENT.  (FN5) 

WE CANNOT AGREE WITH THE DISTRICT COURT THAT SEC. 5(A)(1)(D) CAN BE
SAVED FROM CONSTITUTIONAL INFIRMITY BY LIMITING ITS APPLICATION TO
ACTIVE MEMBERS OF COMMUNIST-ACTION ORGANIZATIONS WHO HAVE THE SPECIFIC
INTENT OF FURTHERING THE UNLAWFUL GOALS OF SUCH ORGANIZATIONS.  THE
DISTRICT COURT RELIED ON SCALES V. UNITED STATES, 367 U.S. 203 (1961),
IN PLACING ITS LIMITING CONSTRUCTION ON SEC. 5(A)(1)(D).  IT IS TRUE
THAT IN SCALES WE READ THE ELEMENTS OF ACTIVE MEMBERSHIP AND SPECIFIC
INTENT INTO THE MEMBERSHIP CLAUSE OF THE SMITH ACT.  (FN6)  HOWEVER, IN
APTHEKER V. SECRETARY OF STATE, 378 U.S. 500 (1964), WE NOTED THAT THE
SMITH ACT'S MEMBERSHIP CLAUSE REQUIRED A DEFENDANT TO HAVE KNOWLEDGE OF
THE ORGANIZATION'S ILLEGAL ADVOCACY, A REQUIREMENT THAT "WAS INTIMATELY
CONNECTED WITH THE CONSTRUCTION LIMITING MEMBERSHIP TO 'ACTIVE'
MEMBERS."  ID., AT 511, N. 9.  APTHEKER INVOLVED A CHALLENGE TO SEC. 6
OF THE SUBVERSIVE ACTIVITIES CONTROL ACT, 50 U.S.C. SEC. 785, WHICH
PROVIDES THAT, WHEN A COMMUNIST ORGANIZATION IS REGISTERED OR UNDER A
FINAL ORDER TO REGISTER, IT SHALL BE UNLAWFUL FOR ANY MEMBER THEREOF
WITH KNOWLEDGE OR NOTICE THEREOF TO APPLY FOR A PASSPORT.  WE HELD THAT
"THE CLARITY AND PRECISENESS OF THE PROVISION IN QUESTION MAKE IT
IMPOSSIBLE TO NARROW ITS INDISCRIMINATELY CAST AND OVERLY BROAD SCOPE
WITHOUT SUBSTANTIAL REWRITING."  ID., AT 515.  WE TAKE THE SAME VIEW OF
SEC. 5(A)(1)(D).  IT IS PRECISELY BECAUSE THAT STATUTE SWEEPS
INDISCRIMINATELY ACROSS ALL TYPES OF ASSOCIATION WITH COMMUNIST-ACTION
GROUPS, WITHOUT REGARD TO THE QUALITY AND DEGREE OF MEMBERSHIP, THAT IT
RUNS AFOUL OF THE FIRST AMENDMENT. 

IN APTHEKER, WE HELD SEC. 6 UNCONSTITUTIONAL BECAUSE IT TOO BROADLY
AND INDISCRIMINATELY INFRINGED UPON CONSTITUTIONALLY PROTECTED RIGHTS. 
THE GOVERNMENT HAS ARGUED THAT, DESPITE THE OVERBREADTH WHICH IS
OBVIOUS ON THE FACE OF SEC. 5(A)(1)(D), APTHEKER IS NOT CONTROLLING IN
THIS CASE BECAUSE THE RIGHT TO TRAVEL IS A MORE BASIC FREEDOM THAN THE
RIGHT TO BE EMPLOYED IN A DEFENSE FACILITY.  WE AGREE THAT APTHEKER IS
NOT CONTROLLING SINCE IT WAS DECIDED UNDER THE FIFTH AMENDMENT.  BUT WE
CANNOT AGREE WITH THE GOVERNMENT'S CHARACTERIZATION OF THE ESSENTIAL
ISSUE IN THIS CASE.  IT IS TRUE THAT THE SPECIFIC DISABILITY IMPOSED BY
SEC. 5(A)(1)(D) IS TO LIMIT THE EMPLOYMENT OPPORTUNITIES OF THOSE WHO
FALL WITHIN ITS COVERAGE, AND SUCH A LIMITATION IS NOT WITHOUT SERIOUS
CONSTITUTIONAL IMPLICATIONS.  SEE GREENE V. MCELROY, 360 U.S. 474, 492
(1959).  BUT THE OPERATIVE FACT UPON WHICH THE JOB DISABILITY DEPENDS
IS THE EXERCISE OF AN INDIVIDUAL'S RIGHT OF ASSOCIATION, WHICH IS
PROTECTED BY THE PROVISIONS OF THE FIRST AMENDMENT.  (FN7)  WHEREVER
ONE WOULD PLACE THE RIGHT TO TRAVEL ON A SCALE OF CONSTITUTIONAL
VALUES, IT IS CLEAR THAT THOSE RIGHTS PROTECTED BY THE FIRST AMENDMENT
ARE NO LESS BASIC IN OUR DEMOCRATIC SCHEME. 

THE GOVERNMENT SEEKS TO DEFEND THE STATUTE ON THE GROUND THAT IT WAS
PASSED PURSUANT TO CONGRESS' WAR POWER.  THE GOVERNMENT ARGUES THAT
THIS COURT HAS GIVEN BROAD DEFERENCE TO THE EXERCISE OF THAT
CONSTITUTIONAL POWER BY THE NATIONAL LEGISLATURE.  THAT ARGUMENT FINDS
SUPPORT IN A NUMBER OF DECISIONS OF THIS COURT.  (FN8)  HOWEVER, THE
PHRASE "WAR POWER" CANNOT BE INVOKED AS A TALISMANIC INCANTATION TO
SUPPORT ANY EXERCISE OF CONGRESSIONAL POWER WHICH CAN BE BROUGHT WITHIN
ITS AMBIT.  "EVEN THE WAR POWER DOES NOT REMOVE CONSTITUTIONAL
LIMITATIONS SAFEGUARDING ESSENTIAL LIBERTIES."  HOME BLDG. & LOAN ASSN.
V. BLAISDELL, 290 U.S. 398, 426 (1934).  MORE SPECIFICALLY IN THIS
CASE, THE GOVERNMENT ASSERTS THAT SEC.  5(A)(1)(D) IS AN EXPRESSION "OF
THE GROWING CONCERN SHOWN BY THE EXECUTIVE AND LEGISLATIVE BRANCHES OF
GOVERNMENT OVER THE RISKS OF INTERNAL SUBVERSION IN PLANTS ON WHICH THE
NATIONAL DEFENSE DEPENDS."  (FN9)  YET, THIS CONCEPT OF "NATIONAL
DEFENSE" CANNOT BE DEEMED AN END IN ITSELF, JUSTIFYING ANY EXERCISE OF
LEGISLATIVE POWER DESIGNED TO PROMOTE SUCH A GOAL.  IMPLICIT IN THE
TERM "NATIONAL DEFENSE" IS THE NOTION OF DEFENDING THOSE VALUES AND
IDEALS WHICH SET THIS NATION APART.  FOR ALMOST TWO CENTURIES, OUR
COUNTRY HAS TAKEN SINGULAR PRIDE IN THE DEMOCRATIC IDEALS ENSHRINED IN
ITS CONSTITUTION, AND THE MOST CHERISHED OF THOSE IDEALS HAVE FOUND
EXPRESSION IN THE FIRST AMENDMENT.  IT WOULD INDEED BE IRONIC IF, IN
THE NAME OF NATIONAL DEFENSE, WE WOULD SANCTION THE SUBVERSION OF ONE
OF THOSE LIBERTIES - THE FREEDOM OF ASSOCIATION - WHICH MAKES THE
DEFENSE OF THE NATION WORTHWHILE. 

WHEN CONGRESS' EXERCISE OF ONE OF ITS ENUMERATED POWERS CLASHES WITH
THOSE INDIVIDUAL LIBERTIES PROTECTED BY THE BILL OF RIGHTS, IT IS OUR
"DELICATE AND DIFFICULT TASK" TO DETERMINE WHETHER THE RESULTING
RESTRICTION ON FREEDOM CAN BE TOLERATED.  SEE SCHNEIDER V. STATE, 308
U.S. 147, 161 (1939).  THE GOVERNMENT EMPHASIZES THAT THE PURPOSE OF
SEC.  5(A)(1)(D) IS TO REDUCE THE THREAT OF SABOTAGE AND ESPIONAGE IN
THE NATION'S DEFENSE PLANTS.  THE GOVERNMENT'S INTEREST IN SUCH A
PROPHYLACTIC MEASURE IS NOT INSUBSTANTIAL.  BUT IT CANNOT BE DOUBTED
THAT THE MEANS CHOSEN TO IMPLEMENT THAT GOVERNMENTAL PURPOSE IN THIS
INSTANCE CUT DEEPLY INTO THE RIGHT OF ASSOCIATION.  SECTION 5(A)(1)(D)
PUT APPELLEE TO THE CHOICE OF SURRENDERING HIS ORGANIZATIONAL
AFFILIATION, REGARDLESS OF WHETHER HIS MEMBERSHIP THREATENED THE
SECURITY OF A DEFENSE FACILITY, (FN10) OR GIVING UP HIS JOB.  (FN11)
WHEN APPELLEE REFUSED TO MAKE THAT CHOICE, HE BECAME SUBJECT TO A
POSSIBLE CRIMINAL PENALTY OF FIVE YEARS' IMPRISONMENT AND A $10,000
FINE.  (FN12)  THE STATUTE QUITE LITERALLY ESTABLISHES GUILT BY
ASSOCIATION ALONE, WITHOUT ANY NEED TO ESTABLISH THAT AN INDIVIDUAL'S
ASSOCIATION POSES THE THREAT FEARED BY THE GOVERNMENT IN PROSCRIBING
IT.  (FN13)  THE INHIBITING EFFECT ON THE EXERCISE OF FIRST AMENDMENT
RIGHTS IS CLEAR. 

IT HAS BECOME AXIOMATIC THAT "PRECISION OF REGULATION MUST BE THE
TOUCHSTONE IN AN AREA SO CLOSELY TOUCHING OUR MOST PRECIOUS FREEDOMS." 
NAACP V. BUTTON, 371 U.S. 415, 438 (1963); SEE APTHEKER V. SECRETARY OF
STATE, 378 U.S. 500, 512-513; SHELTON V. TUCKER, 364 U.S. 479, 488
(1960).  SUCH PRECISION IS NOTABLY LACKING IN SEC. 5(A)(1)(D).  THAT
STATUTE CASTS ITS NET ACROSS A BROAD RANGE OF ASSOCIATIONAL ACTIVITIES,
INDISCRIMINATELY TRAPPING MEMBERSHIP WHICH CAN BE CONSTITUTIONALLY
PUNISHED (FN14) AND MEMBERSHIP WHICH CANNOT BE SO PROSCRIBED.  (FN15)
IT IS MADE IRRELEVANT TO THE STATUTE'S OPERATION THAT AN INDIVIDUAL MAY
BE A PASSIVE OR INACTIVE MEMBER OF A DESIGNATED ORGANIZATION, THAT HE
MAY BE UNAWARE OF THE ORGANIZATION'S UNLAWFUL AIMS, OR THAT HE MAY
DISAGREE WITH THOSE UNLAWFUL AIMS.  (FN16)  IT IS ALSO MADE IRRELEVANT
THAT AN INDIVIDUAL WHO IS SUBJECT TO THE PENALTIES OF SEC. 5(A)(1)(D)
MAY OCCUPY A NONSENSITIVE POSITION IN A DEFENSE FACILITY.  (FN17) THUS,
SEC. 5(A)(1)(D) CONTAINS THE FATAL DEFECT OF OVERBREADTH BECAUSE IT
SEEKS TO BAR EMPLOYMENT BOTH FOR ASSOCIATION WHICH MAY BE PROSCRIBED
AND FOR ASSOCIATION WHICH MAY NOT BE PROSCRIBED CONSISTENTLY WITH FIRST
AMENDMENT RIGHTS.  SEE ELFBRANDT V. RUSSELL, 384 U.S. 11; APTHEKER V.
SECRETARY OF STATE, SUPRA; NAACP V. ALABAMA EX REL.  FLOWERS, 377 U.S.
288 (1964); NAACP V. BUTTON, SUPRA. THIS THE CONSTITUTION WILL NOT
TOLERATE. 

WE ARE NOT UNMINDFUL OF THE CONGRESSIONAL CONCERN OVER THE DANGER OF
SABOTAGE AND ESPIONAGE IN NATIONAL DEFENSE INDUSTRIES, AND NOTHING WE
HOLD TODAY SHOULD BE READ TO DENY CONGRESS THE POWER UNDER NARROWLY
DRAWN LEGISLATION TO KEEP FROM SENSITIVE POSITIONS IN DEFENSE
FACILITIES THOSE WHO WOULD USE THEIR POSITIONS TO DISRUPT THE NATION'S
PRODUCTION FACILITIES.  WE HAVE RECOGNIZED THAT, WHILE THE CONSTITUTION
PROTECTS AGAINST INVASIONS OF INDIVIDUAL RIGHTS, IT DOES NOT WITHDRAW
FROM THE GOVERNMENT THE POWER TO SAFEGUARD ITS VITAL INTERESTS. 
KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, 160 (1963).  SPIES AND
SABOTEURS DO EXIST, AND CONGRESS CAN, OF COURSE, PRESCRIBE CRIMINAL
PENALTIES FOR THOSE WHO ENGAGE IN ESPIONAGE AND SABOTAGE.  (FN18)  THE
GOVERNMENT CAN DENY ACCESS TO ITS SECRETS TO THOSE WHO WOULD USE SUCH
INFORMATION TO HARM THE NATION.  (FN19)  AND CONGRESS CAN DECLARE
SENSITIVE POSITIONS IN NATIONAL DEFENSE INDUSTRIES OFF LIMITS TO THOSE
WHO WOULD USE SUCH POSITIONS TO DISRUPT THE PRODUCTION OF DEFENSE
MATERIALS.  THE GOVERNMENT HAS TOLD US THAT CONGRESS, IN PASSING SEC.
5(A)(1)(D), MADE A CONSIDERED JUDGMENT THAT ONE POSSIBLE ALTERNATIVE TO
THAT STATUTE - AN INDUSTRIAL SECURITY SCREENING PROGRAM - WOULD BE
INADEQUATE AND INEFFECTIVE TO PROTECT AGAINST SABOTAGE IN DEFENSE
FACILITIES.  IT IS NOT OUR FUNCTION TO EXAMINE THE VALIDITY OF THAT
CONGRESSIONAL JUDGMENT.  NEITHER IS IT OUR FUNCTION TO DETERMINE
WHETHER AN INDUSTRIAL SECURITY SCREENING PROGRAM EXHAUSTS THE POSSIBLE
ALTERNATIVES TO THE STATUTE UNDER REVIEW.  WE ARE CONCERNED SOLELY WITH
DETERMINING WHETHER THE STATUTE BEFORE US HAS EXCEEDED THE BOUNDS
IMPOSED BY THE CONSTITUTION WHEN FIRST AMENDMENT RIGHTS ARE AT STAKE. 
THE TASK OF WRITING LEGISLATION WHICH WILL STAY WITHIN THOSE BOUNDS HAS
BEEN COMMITTED TO CONGRESS.  OUR DECISION TODAY SIMPLY RECOGNIZES THAT,
WHEN LEGITIMATE LEGISLATIVE CONCERNS ARE EXPRESSED IN A STATUTE WHICH
IMPOSES A SUBSTANTIAL BURDEN ON PROTECTED FIRST AMENDMENT ACTIVITIES,
CONGRESS MUST ACHIEVE ITS GOAL BY MEANS WHICH HAVE A "LESS DRASTIC"
IMPACT ON THE CONTINUED VITALITY OF FIRST AMENDMENT FREEDOMS.  (FN2)
SHELTON V. TUCKER, SUPRA; CF. UNITED STATES V. BROWN, 381 U.S. 437, 461
(1965).  THE CONSTITUTION AND THE BASIC POSITION OF FIRST AMENDMENT
RIGHTS IN OUR DEMOCRATIC FABRIC DEMAND NOTHING LESS.  AFFIRMED. 

FN1  THE ACT WAS PASSED OVER THE VETO OF PRESIDENT TRUMAN.  IN HIS
VETO MESSAGE, PRESIDENT TRUMAN TOLD CONGRESS, "THE DEPARTMENT OF
JUSTICE, THE DEPARTMENT OF DEFENSE, THE CENTRAL INTELLIGENCE AGENCY,
AND THE DEPARTMENT OF STATE HAVE ALL ADVISED ME THAT THE BILL WOULD
SERIOUSLY DAMAGE THE SECURITY AND THE INTELLIGENCE OPERATIONS FOR WHICH
THEY ARE RESPONSIBLE.  THEY HAVE STRONGLY EXPRESSED THE HOPE THAT THE
BILL WOULD NOT BECOME LAW."  H.R. DOC. NO. 708, 81ST CONG., 2D SESS., 1
(1950). 

PRESIDENT TRUMAN ALSO OBSERVED THAT "THE LANGUAGE OF THE BILL IS SO
BROAD AND VAGUE THAT IT MIGHT WELL RESULT IN PENALIZING THE LEGITIMATE
ACTIVITIES OF PEOPLE WHO ARE NOT COMMUNISTS AT ALL, BUT LOYAL
CITIZENS."  ID., AT 3. 

FN2  SECTION 3(3)(A) OF THE ACT, 50 U.S.C. SEC. 782(3)(A), DEFINES A
COMMUNIST-ACTION ORGANIZATION" AS:    "ANY ORGANIZATION IN THE UNITED
STATES (OTHER THAN A DIPLOMATIC REPRESENTATIVE OR MISSION OF A FOREIGN
GOVERNMENT ACCREDITED AS SUCH BY THE DEPARTMENT OF STATE) WHICH (I) IS
SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED BY THE FOREIGN
GOVERNMENT OR FOREIGN ORGANIZATION CONTROLLING THE WORLD COMMUNIST
MOVEMENT  ...  AND (II) OPERATES PRIMARILY TO ADVANCE THE OBJECTIVES OF
SUCH WORLD COMMUNIST MOVEMENT  ...  ." 

FN3  THE GOVERNMENT HAS PERSISTED IN THIS VIEW IN ITS ARGUMENTS TO
THIS COURT.  BRIEF FOR THE GOVERNMENT 48-56.    FN4  WE INITIALLY HEARD
ORAL ARGUMENT IN THIS CASE ON NOVEMBER 14, 1966.  ON JUNE 5, 1967, WE
ENTERED THE FOLLOWING ORDER: 

"CASE IS RESTORED TO THE CALENDAR FOR REARGUMENT AND COUNSEL ARE
DIRECTED TO BRIEF AND ARGUE, IN ADDITION TO THE QUESTIONS PRESENTED,
THE QUESTION WHETHER THE DELEGATION OF AUTHORITY TO THE SECRETARY OF
DEFENSE TO DESIGNATE 'DEFENSE FACILITIES' SATISFIES PERTINENT
CONSTITUTIONAL STANDARDS."  387 U.S. 939. 

WE HEARD ADDITIONAL ARGUMENTS ON OCTOBER 9, 1967. 

FN5  IN ADDITION TO ARGUING THAT SEC. 5(A)(1)(D) IS INVALID UNDER THE
FIRST AMENDMENT, APPELLEE ASSERTED THAT STATUTE WAS ALSO
UNCONSTITUTIONAL BECAUSE (1) IT OFFENDED SUBSTANTIVE AND PROCEDURAL DUE
PROCESS UNDER THE FIFTH AMENDMENT; (2) IT CONTAINED AN UNCONSTITUTIONAL
DELEGATION OF LEGISLATIVE POWER TO THE SECRETARY OF DEFENSE; AND (3) IT
IS A BILL OF ATTAINDER.  BECAUSE WE AGREE THAT THE STATUTE IS CONTRARY
TO THE FIRST AMENDMENT, WE FIND IT UNNECESSARY TO CONSIDER THE OTHER
CONSTITUTIONAL ARGUMENTS. 

FN6  18 U.S.C. SEC. 2385. 

FN7  OUR DECISIONS LEAVE LITTLE DOUBT THAT THE RIGHT OF ASSOCIATION
IS SPECIFICALLY PROTECTED BY THE FIRST AMENDMENT.  E.G., APTHEKER V.
SECRETARY OF STATE, SUPRA, AT 507; GIBSON V. FLORIDA LEGISLATIVE
INVESTIGATION COMMITTEE, 372 U.S. 539, 543 (1963); BATES V. CITY OF
LITTLE ROCK, 361 U.S. 516, 522-523 (1960); NAACP V. ALABAMA EX REL.
PATTERSON, 357 U.S. 449, 460 (1958).  SEE GENERALLY EMERSON, FREEDOM OF
ASSOCIATION AND FREEDOM OF EXPRESSION, 74 YALE L.J. 1 (1964). 

FN8  SEE, E.G., LICHTER V. UNITED STATES, 334 U.S. 742, 754-772
(1948); HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 93 (1943). 

FN9  BRIEF FOR THE GOVERNMENT 15. 

FN10  THE APPELLEE HAS WORKED AT THE SHIPYARD, APPARENTLY WITHOUT
INCIDENT AND APPARENTLY WITHOUT CONCEALING HIS COMMUNIST PARTY
MEMBERSHIP, FOR MORE THAN 10 YEARS.  AND WE ARE TOLD THAT, FOLLOWING
APPELLEE'S INDICTMENT AND ARREST, "HE WAS RELEASED ON HIS OWN
RECOGNIZANCE, AND IMMEDIATELY RETURNED TO HIS JOB AS A MACHINIST AT THE
TODD SHIPYARDS, WHERE HE HAS WORKED EVER SINCE."  BRIEF FOR APPELLEE 6,
N. 8.  AS FAR AS WE CAN DETERMINE, APPELLEE IS THE ONLY INDIVIDUAL THE
GOVERNMENT HAS ATTEMPTED TO PROSECUTE UNDER SEC. 5(A)(1)(D). 

FN11  WE RECOGNIZED IN GREENE V. MCELROY, 360 U.S., AT 492, THAT "THE
RIGHT TO HOLD SPECIFIC PRIVATE EMPLOYMENT AND TO FOLLOW A CHOSEN
PROFESSION FREE FROM UNREASONABLE GOVERNMENTAL INTERFERENCE COMES
WITHIN THE 'LIBERTY' AND 'PROPERTY' CONCEPTS OF THE FIFTH AMENDMENT. 

FN12  50 U.S.C. SEC. 794(C). 

FN13  THE GOVERNMENT HAS INSISTED THAT CONGRESS, IN ENACTING SEC.
5(A)(1)(D), HAS NOT SOUGHT "TO PUNISH MEMBERSHIP IN 'COMMUNIST-ACTION'
...  ORGANIZATIONS."  BRIEF FOR THE GOVERNMENT 53.  RATHER, THE
GOVERNMENT ASSERTS, CONGRESS HAS SIMPLY SOUGHT TO REGULATE ACCESS TO
EMPLOYMENT IN DEFENSE FACILITIES.  BUT IT IS CLEAR THE EMPLOYMENT
DISABILITY IS IMPOSED ONLY BECAUSE OF SUCH MEMBERSHIP. 

FN14 SEE SCALES V. UNITED STATES, 367 U.S. 203 (1961). 

FN15  SEE ELFBRANDT V. RUSSELL, 384 U.S. 11 (1966). 

FN16  A NUMBER OF COMPLEX MOTIVATIONS MAY IMPEL AN INDIVIDUAL TO
ALIGN HIMSELF WITH A PARTICULAR ORGANIZATION.  SEE GIBSON V. FLORIDA
LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S. 539, 562-565
(1963)(CONCURRING OPINION).  IT IS FOR THAT REASON THAT THE MERE
PRESENCE OF AN INDIVIDUAL'S NAME ON AN ORGANIZATION'S MEMBERSHIP ROLLS
IS INSUFFICIENT TO IMPUTE TO HIM THE ORGANIZATION'S ILLEGAL GOALS. 

FN17  SEE COLE V. YOUNG, 351 U.S. 536, 546 (1956):  "IT IS DIFFICULT
TO JUSTIFY SUMMARY SUSPENSIONS AND UNREVIEWABLE DISMISSALS ON LOYALTY
GROUNDS OF EMPLOYEES WHO ARE NOT IN 'SENSITIVE' POSITIONS AND WHO ARE
THUS NOT SITUATED WHERE THEY COULD BRING ABOUT ANY DISCERNIBLE ADVERSE
EFFECTS ON THE NATION'S SECURITY." 

FN18  CONGRESS HAS ALREADY PROVIDED STIFF PENALTIES FOR THOSE WHO
CONDUCT ESPIONAGE AND SABOTAGE AGAINST THE UNITED STATES.  18 U.S.C.
SECS. 792-798 (ESPIONAGE); SECS. 2151-2156 (SABOTAGE). 

FN19  THE DEPARTMENT OF DEFENSE, PURSUANT TO EXECUTIVE ORDER 10865,
AS AMENDED BY EXECUTIVE ORDER 10909, HAS ESTABLISHED DETAILED
PROCEDURES FOR SCREENING THOSE WORKING IN PRIVATE INDUSTRY WHO, BECAUSE
OF THEIR JOBS, MUST HAVE ACCESS TO CLASSIFIED DEFENSE INFORMATION.  32
CFR PART 155.  THE PROVISIONS OF THOSE REGULATIONS ARE NOT BEFORE THE
COURT IN THIS CASE. 

FN20  IT HAS BEEN SUGGESTED THAT THIS CASE SHOULD BE DECIDED BY
"BALANCING" THE GOVERNMENTAL INTERESTS EXPRESSED IN SEC. 5(A)(1)(D)
AGAINST THE FIRST AMENDMENT RIGHTS ASSERTED BY THE APPELLEE.  THIS WE
DECLINE TO DO.  WE RECOGNIZE THAT BOTH INTERESTS ARE SUBSTANTIAL, BUT
WE DEEM IT INAPPROPRIATE FOR THIS COURT TO LABEL ONE AS BEING MORE
IMPORTANT OR MORE SUBSTANTIAL THAN THE OTHER.  OUR INQUIRY IS MORE
CIRCUMSCRIBED.  FACED WITH A CLEAR CONFLICT BETWEEN A FEDERAL STATUTE
ENACTED IN THE INTERESTS OF NATIONAL SECURITY AND AN INDIVIDUAL'S
EXERCISE OF HIS FIRST AMENDMENT RIGHTS, WE HAVE CONFINED OUR ANALYSIS
TO WHETHER CONGRESS HAS ADOPTED A CONSTITUTIONAL MEANS IN ACHIEVING ITS
CONCEDEDLY LEGITIMATE LEGISLATIVE GOAL.  IN MAKING THIS DETERMINATION
WE HAVE FOUND IT NECESSARY TO MEASURE THE VALIDITY OF THE MEANS ADOPTED
BY CONGRESS AGAINST BOTH THE GOAL IT HAS SOUGHT TO ACHIEVE AND THE
SPECIFIC PROHIBITIONS OF THE FIRST AMENDMENT.  BUT WE HAVE IN NO WAY
"BALANCED" THOSE RESPECTIVE INTERESTS.  WE HAVE RULED ONLY THAT THE
CONSTITUTION REQUIRES THAT THE CONFLICT BETWEEN CONGRESSIONAL POWER AND
INDIVIDUAL RIGHTS BE ACCOMMODATED BY LEGISLATION DRAWN MORE NARROWLY TO
AVOID THE CONFLICT.  THERE IS, OF COURSE, NOTHING NOVEL IN THAT
ANALYSIS.  SUCH A COURSE OF ADJUDICATION WAS ENUNCIATED BY CHIEF
JUSTICE MARSHALL WHEN HE DECLARED:  "LET THE END BE LEGITIMATE, LET IT
BE WITHIN THE SCOPE OF THE CONSTITUTION, AND ALL MEANS WHICH ARE
APPROPRIATE, WHICH ARE PLAINLY ADAPTED TO THAT END, WHICH ARE NOT
PROHIBITED, BUT CONSIST WITH THE LETTER AND SPIRIT OF THE CONSTITUTION,
ARE CONSTITUTIONAL."  M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 421
(1819).  IN THIS CASE, THE MEANS CHOSEN BY CONGRESS ARE CONTRARY TO THE
"LETTER AND SPIRIT" OF THE FIRST AMENDMENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, CONCURRING IN THE RESULT. 

I TOO AGREE THAT THE JUDGMENT OF THE DISTRICT COURT SHOULD BE
AFFIRMED BUT I REACH THAT RESULT FOR DIFFERENT REASONS. 

LIKE THE COURT, I DISAGREE WITH THE DISTRICT COURT THAT SEC.
5(A)(1)(D) CAN BE READ TO APPLY ONLY TO ACTIVE MEMBERS WHO HAVE THE
SPECIFIC INTENT TO FURTHER THE PARTY'S UNLAWFUL OBJECTIVES.  IN
APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, WE REJECTED THAT READING
OF SEC. 6 OF THE ACT WHICH PROVIDES THAT, WHEN A COMMUNIST ORGANIZATION
IS REGISTERED OR UNDER FINAL ORDER TO REGISTER, IT SHALL BE UNLAWFUL
FOR ANY MEMBER THEREOF WITH KNOWLEDGE OR NOTICE OF THE ORDER TO APPLY
FOR OR USE A PASSPORT.  WE HELD THAT "THE CLARITY AND PRECISENESS OF
THE PROVISION IN QUESTION MAKE IT IMPOSSIBLE TO NARROW ITS
INDISCRIMINATELY CAST AND OVERLY BROAD SCOPE WITHOUT SUBSTANTIAL
REWRITING."  378 U.S., AT 515.  I TAKE THE SAME VIEW OF SEC.
5(A)(1)(D). 

APTHEKER HELD SEC. 6 OF THE ACT OVERBROAD IN THAT IT DEPRIVED PARTY
MEMBERS OF THE RIGHT TO TRAVEL WITHOUT REGARD TO WHETHER THEY WERE
ACTIVE MEMBERS OF THE PARTY OR INTENDED TO FURTHER THE PARTY'S UNLAWFUL
OBJECTIVES, AND THEREFORE INVALIDLY ABRIDGED, ON THE BASIS OF POLITICAL
ASSOCIATIONS, THE MEMBERS' CONSTITUTIONALLY PROTECTED RIGHT TO TRAVEL. 
ARE ACTIVE, OR KNOW THE PARTY'S UNLAWFUL PURPOSES, OR INTEND TO PURSUE
THOSE PURPOSES.  COMPARE KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589;
ELFBRANDT V. RUSSELL, 384 U.S. 11, 17; SCALES V. UNITED STATES, 367
U.S. 203; SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 136.  INDEED, A
MEMBER SUCH AS APPELLEE, WHO HAS WORKED AT THE TODD SHIPYARDS WITHOUT
COMPLAINT OR KNOWN GROUND FOR SUSPICION FOR OVER 10 YEARS, IS AFFORDED
NO OPPORTUNITY TO PROVE THAT THE STATUTE'S PRESUMPTION THAT HE IS A
SECURITY RISK IS INVALID AS APPLIED TO HIM.  AND NO IMPORTANCE WHATEVER
IS ATTACHED TO THE SENSITIVITY OF THE JOBS HELD BY PARTY MEMBERS, A
FACTOR LONG CONSIDERED RELEVANT IN SECURITY CASES.  (FN1)  FURTHERMORE,
LIKE SEC. 6, SEC. 5(A)(1)(D) AFFECTS CONSTITUTIONALLY PROTECTED
RIGHTS.  "THE RIGHT TO HOLD SPECIFIC PRIVATE EMPLOYMENT AND TO FOLLOW A
CHOSEN PROFESSION FREE FROM UNREASONABLE GOVERNMENTAL INTERFERENCE
COMES WITHIN THE 'LIBERTY' AND 'PROPERTY' CONCEPTS OF THE FIFTH
AMENDMENT  ...  ."  GREENE V. MCELROY, 360 U.S. 474, 492.  THAT RIGHT
IS THEREFORE ALSO INCLUDED AMONG THE "INDIVIDUAL LIBERTIES FUNDAMENTAL
TO AMERICAN INSTITUTIONS WHICH ARE NOT TO BE DESTROYED UNDER PRETEXT OF
PRESERVING THOSE INSTITUTIONS, EVEN FROM THE GRAVEST EXTERNAL
DANGERS."  COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 367
U.S. 1, 96.  SINCE EMPLOYMENT OPPORTUNITIES ARE DENIED BY SEC.
5(A)(1)(D) SIMPLY ON THE BASIS OF POLITICAL ASSOCIATIONS THE STATUTE
ALSO HAS THE POTENTIAL OF CURTAILING FREE EXPRESSION BY INHIBITING
PERSONS FROM ESTABLISHING OR RETAINING SUCH ASSOCIATIONS.  SEE WIEMAN
V. UPDEGRAFF, 344 U.S. 183, 191.  "BROAD PROPHYLACTIC RULES IN THE AREA
OF FREE EXPRESSION ARE SUSPECT  ...  .  PRECISION OF REGULATION MUST BE
THE TOUCHSTONE IN  ...  AREAS SO CLOSELY TOUCHING OUR MOST PRECIOUS
FREEDOMS."  NAACP V. BUTTON, 371 U.S. 415, 438; SEE SHELTON V. TUCKER,
364 U.S. 479, 488; CANTWELL V. CONNECTICUT, 310 U.S. 296, 304. 

IT IS TRUE, HOWEVER, AS THE GOVERNMENT POINTS OUT, THAT CONGRESS
OFTEN REGULATES INDISCRIMINATELY, THROUGH PREVENTIVE OR PROPHYLACTIC
MEASURES, E.G., BOARD OF GOVERNORS V. AGNEW, 329 U.S. 441; NORTH
AMERICAN CO. V. SEC, 327 U.S. 686, AND THAT SUCH REGULATION HAS BEEN
UPHELD EVEN WHERE FUNDAMENTAL FREEDOMS ARE POTENTIALLY AFFECTED,
HIRABAYASHI V. UNITED STATES, 320 U.S. 81; CAFETERIA WORKERS V.
MCELROY, 367 U.S. 886; CARLSON V. LANDON, 342 U.S. 524.  EACH
REGULATION MUST BE EXAMINED IN TERMS OF ITS POTENTIAL IMPACT UPON
FUNDAMENTAL RIGHTS, THE IMPORTANCE OF THE END SOUGHT AND THE NECESSITY
FOR THE MEANS ADOPTED.  THE GOVERNMENT ARGUES THAT SEC. 5(A)(1)(D) MAY
BE DISTINGUISHED FROM SEC. 6 ON THE BASIS OF THESE FACTORS.  SECTION
5(A)(1)(D) LIMITS EMPLOYMENT ONLY IN "ANY DEFENSE FACILITY," WHILE SEC.
6 DEPRIVED EVERY PARTY MEMBER OF THE RIGHT TO APPLY FOR OR TO HOLD A
PASSPORT.  IF SEC. 5(A)(1)(D) WERE IN FACT NARROWLY APPLIED, THE
RESTRICTIONS IT WOULD PLACE UPON EMPLOYMENT ARE NOT AS GREAT AS THOSE
PLACED UPON THE RIGHT TO TRAVEL BY SEC. 6.  (FN2)  THE PROBLEMS
PRESENTED BY THE EMPLOYMENT OF PARTY MEMBERS AT DEFENSE FACILITIES,
MOREOVER, MAY WELL INVOLVE GREATER HAZARDS TO NATIONAL SECURITY THAN
THOSE CREATED BY ALLOWING PARTY MEMBERS TO TRAVEL ABROAD.  WE MAY
ASSUME, TOO, THAT CONGRESS MAY HAVE BEEN JUSTIFIED IN ITS CONCLUSION
THAT ALTERNATIVES TO SEC. 5(A)(1)(D) WERE INADEQUATE.  (FN3)  FOR THESE
REASONS, I AM NOT PERSUADED TO THE COURT'S VIEW THAT OVERBREADTH IS
FATAL TO THIS STATUTE, AS I AGREE IT WAS IN OTHER CONTEXTS; SEE, E.G.,
KEYISHIAN V. BOARD OF REGENTS, 358 U.S. 589; ELFBRANDT V. RUSSELL, 384
U.S. 11; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500; NAACP V. BUTTON,
371 U.S. 415. 

HOWEVER, ACCEPTANCE OF THE VALIDITY OF THESE DISTINCTIONS AND
RECOGNITION OF CONGRESSIONAL POWER TO UTILIZE A PROPHYLACTIC DEVICE
SUCH AS SEC. 5(A)(1)(D) TO SAFEGUARD AGAINST ESPIONAGE AND SABOTAGE AT
ESSENTIAL DEFENSE FACILITIES, WOULD NOT END INQUIRY IN THIS CASE.  EVEN
IF THE STATUTE IS NOT OVERBROAD ON ITS FACE - BECAUSE THERE MAY BE
"DEFENSE FACILITIES" SO ESSENTIAL TO OUR NATIONAL SECURITY THAT
CONGRESS COULD CONSTITUTIONALLY EXCLUDE ALL PARTY MEMBERS FROM
EMPLOYMENT IN THEM - THE CONGRESSIONAL DELEGATION OF AUTHORITY TO THE
SECRETARY OF DEFENSE TO DESIGNATE "DEFENSE FACILITIES" CREATES THE
DANGER OF OVERBROAD, UNAUTHORIZED, AND ARBITRARY APPLICATION OF
CRIMINAL SANCTIONS IN AN AREA OF PROTECTED FREEDOMS AND THEREFORE, IN
MY VIEW, RENDERS THIS STATUTE INVALID.  BECAUSE THE STATUTE CONTAINS NO
MEANINGFUL STANDARD BY WHICH THE SECRETARY IS TO GOVERN HIS
DESIGNATIONS, AND NO PROCEDURES TO CONTEST OR REVIEW HIS DESIGNATIONS,
THE "DEFENSE FACILITY" FORMULATION IS CONSTITUTIONALLY INSUFFICIENT TO
MARK "THE FIELD WITHIN WHICH THE SECRETARY IS TO ACT SO THAT IT MAY BE
KNOWN WHETHER HE HAS KEPT WITHIN IT IN COMPLIANCE WITH THE LEGISLATIVE
WILL."  YAKUS V. UNITED STATES, 321 U.S. 414, 425. 

THE SECRETARY'S ROLE IN DESIGNATING "DEFENSE FACILITIES" IS
FUNDAMENTAL TO THE POTENTIAL BREADTH OF THE STATUTE, SINCE THE GREATER
THE NUMBER AND TYPES OF FACILITIES DESIGNATED, THE GREATER IS THE
INDISCRIMINATE DENIAL OF JOB OPPORTUNITIES, UNDER THREAT OF CRIMINAL
PUNISHMENT, TO PARTY MEMBERS BECUASE OF THEIR POLITICAL ASSOCIATIONS. 
A CLEAR, MANAGEABLE STANDARD MIGHT HAVE BEEN A SIGNIFICANT LIMITATION
UPON THE SECRETARY'S DISCRETION.  BUT THE STANDARD UNDER WHICH CONGRESS
DELEGATED THE DESIGNATING POWER IS SO INDEFINITE AS TO BE MEANINGLESS. 
THE STATUTE DEFINES "FACILITY" BROADLY ENOUGH TO INCLUDE VIRTUALLY
EVERY PLACE OF EMPLOYMENT IN THE UNITED STATES; THE TERM INCLUDES "ANY
PLANT, FACTORY OR OTHER MANUFACTURING, PRODUCING OR SERVICE
ESTABLISHMENT, AIRPORT, AIRPORT FACILITY, VESSEL, PIER, WATER-FRONT
FACILITY, MINE, RAILROAD, PUBLIC UTILITY, LABORATORY, STATION, OR OTHER
ESTABLISHMENT OR FACILITY, OR ANY PART, DIVISION, OR DEPARTMENT OF ANY
OF THE FOREGOING."  50 U.S.C. SEC.  782(7).  AND SEC. 5(B) GRANTS THE
SECRETARY OF DEFENSE UNTRAMMELLED DISCRETION TO DESIGNATE AS A "DEFENSE
FACILITY" ANY FACILITY "WITH RESPECT TO THE OPERATION OF WHICH HE FINDS
AND DETERMINES THAT THE SECURITY OF THE UNITED STATES REQUIRES  ...  "
THAT PARTY MEMBERS SHOULD NOT BE EMPLOYED THERE.  CONGRESS COULD EASILY
HAVE BEEN MORE SPECIFIC.  (FN4)  INSTEAD, CONGRESS LEFT THE SECRETARY
COMPLETELY AT LARGE IN DETERMINING THE RELEVANCE AND WEIGHT TO BE
ACCORDED SUCH FACTORS AS THE IMPORTANCE AND SECRECY OF THE FACILITY AND
OF THE WORK BEING DONE THERE, AND THE INDISPENSABILITY OF THE
FACILITY'S SERVICE OR PRODUCT TO THE NATIONAL SECURITY. 

CONGRESS ORDINARILY MAY DELEGATE POWER UNDER BROAD STANDARDS.  E.G.,
DAKOTA CENTRAL TEL.  CO. V. SOUTH DAKOTA, 250 U.S. 163, 183; FPC V.
HOPE NATURAL GAS CO., 320 U.S. 591; NCB V. UNITED STATES, 319 U.S.
190.  NO OTHER GENERAL RULE WOULD BE FEASIBLE OR DESIRABLE.  DELEGATION
OF POWER UNDER GENERAL DIRECTIVES IS AN INEVITABLE CONSEQUENCE OF OUR
COMPLEX SOCIETY, WITH ITS MYRIAD, EVER CHANGING, HIGHLY TECHNICAL
PROBLEMS.  "THE CONSTITUTION HAS NEVER BEEN REGARDED AS DENYING TO THE
CONGRESS THE NECESSARY RESOURCES OF FLEXIBILITY AND PRACTICALITY  ...
TO PERFORM ITS FUNCTION  ... ."  PANAMA REFINING CO. V. RYAN, 293 U.S.
388, 421; CURRIN V. WALLACE, 306 U.S. 1, 15.  IT IS GENERALLY ENOUGH
THAT, IN CONFERRING POWER UPON AN APPROPRIATE AUTHORITY, CONGRESS
INDICATE ITS GENERAL POLICY, AND ACT IN TERMS OR WITHIN A CONTEXT WHICH
LIMITS THE POWER CONFERRED.  SEE, E.G., ARIZONA V. CALIFORNIA, 373 U.S.
546, 584-585; FCC V. RCA COMMUNICATIONS, INC., 346 U.S. 86; LICHTER V.
UNITED STATES, 334 U.S. 742; YAKUS V. UNITED STATES, SUPRA, AT 424;
BANDINI PETROLEUM CO. V. SUPERIOR COURT, 284 U.S. 8; FTC V. GRATZ, 253
U.S. 421; BUTTFIELD V. STRANAHAN.  192 U.S. 470.  GIVEN SUCH A
SITUATION, IT IS POSSIBLE FOR AFFECTED PERSONS, WITHIN THE PROCEDURAL
STRUCTURE USUALLY ESTABLISHED FOR THE PURPOSE, TO BE HEARD BY THE
IMPLEMENTING AGENCY AND TO SECURE MEANINGFUL REVIEW OF ITS ACTION IN
THE COURTS, AND FOR CONGRESS ITSELF TO REVIEW ITS AGENT'S ACTION TO
CORRECT SIGNIFICANT DEPARTURES FROM CONGRESS' INTENTION. 

THE AREA OF PERMISSIBLE INDEFINITENESS NARROWS, HOWEVER, WHEN THE
REGULATION INVOKES CRIMINAL SANCTIONS AND POTENTIALLY AFFECTS
FUNDAMENTAL RIGHTS, AS DOES SEC. 5(A)(1)(D).  SEE BARENBLATT V. UNITED
STATES, 360 U.S. 109, 140, N. 7 (BLACK, J., DISSENTING).  THIS IS
BECAUSE THE NUMEROUS DEFICIENCIES CONNECTED WITH VAGUE LEGISLATIVE
DIRECTIVES, WHETHER TO A LEGISLATIVE COMMITTEE, UNITED STATES V.
RUMELY, 345 U.S. 41; TO AN EXECUTIVE OFFICER, PANAMA REFINING CO. V.
RYAN, 293 U.S. 388; TO A JUDGE AND JURY, CLINE V. FRINK DAIRY CO., 274
U.S. 445, 465; OR TO PRIVATE PERSONS, BANTAM BOOKS, INC. V. SULLIVAN,
372 U.S. 58; SEE SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S.
495; ARE FAR MORE SERIOUS WHEN LIBERTY AND THE EXERCISE OF FUNDAMENTAL
RIGHTS ARE AT STAKE.  SEE ALSO GOJACK V. UNITED STATES, 384 U.S. 702;
KUNZ V. NEW YORK, 340 U.S. 290; WINTERS V. NEW YORK, 333 U.S. 507;
THORNHILL V. ALABAMA, 310 U.S. 88; HAGUE V. CIO, 307 U.S. 496; HERNDON
V. LOWRY, 301 U.S. 242. 

FIRST.  THE FAILURE TO PROVIDE ADEQUATE STANDARDS IN SEC. 5(A)(1)(D)
REFLECTS CONGRESS' FAILURE TO HAVE MADE A "LEGISLATIVE JUDGMENT,"
CANTWELL V. CONNECTICUT, 310 U.S., AT 307, ON THE EXTENT TO WHICH THE
PROPHYLACTIC MEASURE SHOULD BE APPLIED.  FORMULATION OF POLICY IS A
LEGISLATURE'S PRIMARY RESPONSIBILITY, ENTRUSTED TO IT BY THE
ELECTORATE, AND TO THE EXTENT CONGRESS DELEGATES AUTHORITY UNDER
INDEFINITE STANDARDS, THIS POLICY-MAKING FUNCTION IS PASSED ON TO OTHER
AGENCIES, OFTEN NOT ANSWERABLE OR RESPONSIVE IN THE SAME DEGREE TO THE
PEOPLE.  "STANDARDS OF PERMISSIBLE STATUTORY VAGUENESS ARE STRICT  ...
" IN PROTECTED AREAS.  NAACP V. BUTTON, 371 U.S., AT 432.  "WITHOUT
EXPLICIT ACTION BY LAWMAKERS, DECISIONS OF GREAT CONSTITUTIONAL IMPORT
AND EFFECT WOULD BE RELEGATED BY DEFAULT TO ADMINISTRATORS WHO, UNDER
OUR SYSTEM OF GOVERNMENT, ARE NOT ENDOWED WITH AUTHORITY TO DECIDE
THEM."  GREENE V. MCELROY, 360 U.S. 474, 507. 

CONGRESS HAS THE RESOURCES AND THE POWER TO INFORM ITSELF, AND IS THE
APPROPRIATE FORUM WHERE THE CONFLICTING PROS AND CONS SHOULD HAVE BEEN
PRESENTED AND CONSIDERED.  BUT INSTEAD OF A DETERMINATION BY CONGRESS
REFLECTED IN GUIDING STANDARDS OF THE TYPES OF FACILITIES TO WHICH SEC.
5(A)(1)(D) SHOULD BE APPLIED, THE STATUTE PROVIDES FOR A RESOLUTION BY
THE SECRETARY OF DEFENSE ACTING ON HIS OWN ACCORD.  IT IS TRUE THAT THE
SECRETARY PRESUMABLY HAS AT HIS DISPOSAL THE INFORMATION AND EXPERTISE
NECESSARY TO MAKE REASONED JUDGMENTS ON WHICH FACILITIES ARE IMPORTANT
TO NATIONAL SECURITY.  BUT THAT IS NOT THE QUESTION TO BE RESOLVED
UNDER THIS STATUTE.  COMPARE HAGUE V. CIO, 307 U.S. 496.  RATHER, THE
SECRETARY IS IN EFFECT DETERMINING WHICH FACILITIES ARE SO IMPORTANT TO
THE NATIONAL SECURITY THAT PARTY MEMBERS, ACTIVE OR INACTIVE, WELL- OR
ILL-INTENTIONED, SHOULD BE PROHIBITED FROM WORKING WITHIN THEM IN ANY
CAPACITY, SENSITIVE OR INNOCUOUS, UNDER THREAT OF CRIMINAL
PROSECUTION.  IN RESOLVING THIS CONFLICT OF INTERESTS, THE SECRETARY'S
JUDGMENT, COLORED BY HIS OVERRIDING OBLIGATION TO PROTECT THE NATIONAL
DEFENSE, IS NOT A CONSTITUTIONALLY ACCEPTABLE SUBSTITUTE FOR CONGRESS'
JUDGMENT, IN THE ABSENCE OF FURTHER, LIMITING GUIDANCE.  (FN5) 

THE NEED FOR A LEGISLATIVE JUDGMENT IS ESPECIALLY ACUTE HERE, SINCE
IT IS IMPERATIVE WHEN LIBERTY AND THE EXERCISE OF FUNDAMENTAL FREEDOMS
ARE INVOLVED THAT CONSTITUTIONAL RIGHTS NOT BE UNDULY INFRINGED. 
CANTWELL V. CONNECTICUT, SUPRA, AT 304.  BEFORE WE CAN DECIDE WHETHER
IT IS AN UNDUE INFRINGEMENT OF PROTECTED RIGHTS TO SEND A PERSON TO
PRISON FOR HOLDING EMPLOYMENT AT A CERTAIN TYPE OF FACILITY, IT OUGHT
AT LEAST TO APPEAR THAT CONGRESS AUTHORIZED THE PROSCRIPTION AS
WARRANTED AND NECESSARY.  SUCH CONGRESSIONAL DETERMINATIONS WILL NOT BE
ASSUMED.  "THEY MUST BE MADE EXPLICITLY NOT ONLY TO ASSURE THAT
INDIVIDUALS ARE NOT DEPRIVED OF CHERISHED RIGHTS UNDER PROCEDURES NOT
ACTUALLY AUTHORIZED  ...  BUT ALSO BECAUSE EXPLICIT ACTION, ESPECIALLY
IN AREAS OF DOUBTFUL CONSTITUTIONALITY, REQUIRES CAREFUL AND PURPOSEFUL
CONSIDERATION BY THOSE RESPONSIBLE FOR ENACTING AND IMPLEMENTING OUR
LAWS."  GREENE V. MCELROY, SUPRA, AT 507. 

SECOND.  WE SAID IN WATKINS V. UNITED STATES, 354 U.S. 178, 205, THAT
CONGRESS MUST TAKE STEPS TO ASSURE "RESPECT FOR CONSTITUTIONAL
LIBERTIES" BY PREVENTING THE EXISTENCE OF "A WIDE GULF BETWEEN THE
RESPONSIBILITY FOR THE USE OF  ...  POWER AND THE ACTUAL EXERCISE OF
THAT POWER."  PROCEDURAL PROTECTIONS TO AVOID THAT GULF HAVE BEEN
RECOGNIZED AS ESSENTIAL WHEN FUNDAMENTAL FREEDOMS ARE REGULATED,
SPEISER V. RANDALL, 357 U.S. 513; MARCUS V. SEARCH WARRANT, 367 U.S.
717, 730; A QUANTITY OF COPIES OF BOOKS V. KANSAS, 378 U.S. 205, 213;
EVEN WHEN CONGRESS ACTS PURSUANT TO ITS "GREAT POWERS," KENNEDY V.
MENDOZA-MARTINEZ, 372 U.S. 144, 164.  WITHOUT PROCEDURAL SAFEGUARDS,
REGULATORY SCHEMES WILL TEND THROUGH THEIR INDISCRIMINATE APPLICATION
TO INHIBIT THE ACTIVITY INVOLVED.  SEE MARCUS V. SEARCH WARRANT, SUPRA,
AT 734-735. 

IT IS TRUE THAT "A CONSTRUCTION OF THE STATUTE WHICH WOULD DENY ALL
OPPORTUNITY FOR JUDICIAL DETERMINATION OF AN ASSERTED CONSTITUTIONAL
RIGHT IS NOT TO BE FAVORED."  LOCKERTY V. PHILLIPS, 319 U.S. 182, 188. 
HOWEVER, THE TEXT AND HISTORY OF THIS SECTION COMPEL THE CONCLUSION
THAT CONGRESS DELIBERATELY CHOSE NOT TO PROVIDE FOR PROTEST EITHER TO
THE SECRETARY OR THE COURTS FROM ANY DESIGNATION BY THE SECRETARY OF A
FACILITY AS A "DEFENSE FACILITY."  THE ABSENCE OF ANY PROVISION IN THIS
REGARD CONTRASTS STRONGLY WITH THE CARE THAT CONGRESS TOOK TO PROVIDE
FOR THE DETERMINATION BY THE SACB THAT THE PARTY IS A COMMUNIST-ACTION
ORGANIZATION, AND FOR JUDICIAL REVIEW OF THAT DETERMINATION.  THE ACT
"REQUIRES THE REGISTRATION ONLY OF ORGANIZATIONS WHICH  ...  ARE FOUND
TO BE UNDER THE DIRECTION, DOMINATION, OR CONTROL OF CERTAIN FOREIGN
POWERS AND TO OPERATE PRIMARILY TO ADVANCE CERTAIN OBJECTIVES.  THIS
FINDING MUST BE MADE AFTER FULL ADMINISTRATIVE HEARING, SUBJECT TO
JUDICIAL REVIEW WHICH OPENS THE RECORD FOR THE REVIEWING COURT'S
DETERMINATION WHETHER THE ADMINISTRATIVE FINDINGS AS TO FACT ARE
SUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE."  COMMUNIST PARTY V.
SUBVERSIVE ACTIVITIES CONTROL BOARD, SUPRA, AT 86-87.  IN CONTRAST, THE
ACT NOWHERE PROVIDES FOR AN ADMINISTRATIVE HEARING ON THE SECRETARY'S
DESIGNATION, EITHER PUBLIC OR PRIVATE, NOR IS HIS FINDING SUBJECT TO
REVIEW.  A PARTY MEMBER CHARGED WITH NOTICE OF THE DESIGNATION MUST
QUIT THE PARTY OR HIS JOB; HE CANNOT CONTEST THE SECRETARY'S ACTION ON
TRIAL IF HE RETAINS BOTH AND IS PROSECUTED.  (FN6) 

THIS IS PERSUASIVE EVIDENCE THAT THE MATTER OF THE DESIGNATION OF
"DEFENSE FACILITIES" WAS PURPOSELY COMMITTED BY CONGRESS ENTIRELY TO
THE DISCRETIONARY JUDGMENT OF THE SECRETARY.  UNLIKE THE OPPORTUNITIES
FOR HEARING AND JUDICIAL REVIEW AFFORDED THE PARTY ITSELF, THE PARTY
MEMBER WAS NOT TO BE HEARD BY THE SECRETARY TO PROTEST THE DESIGNATION
OF HIS PLACE OF EMPLOYMENT AS A "DEFENSE FACILITY," NOR WAS THE MEMBER
TO HAVE RECOURSE TO THE COURTS.  THIS POINTED DISTINCTION, AS IN THE
CASE OF THE STATUTE BEFORE THE COURT IN SCHILLING V. ROGERS, 363 U.S.
666, 674, IS COMPELLING EVIDENCE "THAT IN THIS ACT CONGRESS WAS
ADVERTENT TO THE ROLE OF COURTS, AND AN ABSENCE IN ANY SPECIFIC AREA OF
ANY KIND OF PROVISION FOR JUDICIAL PARTICIPATION STRONGLY INDICATES A
LEGISLATIVE PURPOSE THAT THERE BE NO SUCH PARTICIPATION."  THIS CLEAR
INDICATION OF THE CONGRESSIONAL PLAN, COUPLED WITH A FLEXIBILITY - AS
REGARDS THE BOUNDARIES OF THE SECRETARY'S DISCRETION - SO UNGUIDED AS
TO BE ENTIRELY UNGUIDING, MUST ALSO MEAN THAT CONGRESS CONTEMPLATED
THAT AN AFFECTED PARTY MEMBER WAS NOT TO BE HEARD TO CONTEND EVEN AT
HIS CRIMINAL TRIAL THAT THE SECRETARY ACTED BEYOND THE SCOPE OF HIS
POWERS, OR THAT THE DESIGNATION OF THE PARTICULAR FACILITY WAS
ARBITRARY AND CAPRICIOUS.  CF. ESTEP V. UNITED STATES, 327 U.S. 114. 

THE LEGISLATIVE HISTORY OF THE SECTION CONFIRMS THIS CONCLUSION. 
THAT HISTORY MAKES CLEAR THAT CONGRESS WAS CONCERNED THAT NEITHER THE
SECRETARY'S REASONS FOR A DESIGNATION NOR THE FACT OF THE DESIGNATION
SHOULD BE PUBLICIZED.  THIS EMERGED AFTER PRESIDENT TRUMAN VETOED THE
STATUTE.  IN ITS ORIGINAL FORM THE ACT REQUIRED THE SECRETARY TO
"DESIGNATE AND PROCLAIM, AND FROM TIME TO TIME REVISE, A LIST OF
FACILITIES  ...  TO BE PROMPTLY PUBLISHED IN THE FEDERAL REGISTER  ...
."  SEC. 5(B).  THE PRESIDENT COMMENTED IN HIS VETO MESSAGE, "SPIES AND
SABOTEURS WOULD WILLINGLY SPEND YEARS OF EFFORT SEEKING TO FIND OUT THE
INFORMATION THAT THIS BILL WOULD REQUIRE THE GOVERNMENT TO HAND THEM ON
A SILVER PLATTER."  H.R. DOC.  NO. 708, 81ST CONG., 2D SESS., 2
(1950).  SHORTLY AFTER THIS COURT SUSTAINED THE REGISTRATION PROVISIONS
OF THE ACT IN COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD,
SUPRA, THE ACT WAS AMENDED AT THE REQUEST OF THE SECRETARY TO ELIMINATE
THE REQUIREMENT THAT THE LIST OF DESIGNATED FACILITIES BE PUBLISHED IN
THE FEDERAL REGISTER.  76 STAT. 91.  INSTEAD THE LIST IS CLASSIFIED
INFORMATION.  WHETHER OR NOT SUCH CLASSIFICATION IS PRACTICALLY
MEANINGFUL - IN LIGHT OF THE FACT THAT NOTICE OF A DESIGNATION MUST BE
POSTED IN THE DESIGNATED FACILITY - THE HISTORY IS PERSUASIVE AGAINST
ANY CONGRESSIONAL INTENTION TO PROVIDE FOR HEARINGS OR JUDICIAL REVIEW
THAT MIGHT BE ATTENDED WITH UNDESIRED PUBLICITY.  WE ARE THEREFORE NOT
FREE TO IMPLY LIMITATIONS UPON THE SECRETARY'S DISCRETION OR PROCEDURAL
SAFEGUARDS THAT CONGRESS OBVIOUSLY CHOSE TO OMIT.  COMPARE COLE V.
YOUNG, 351 U.S. 536; UNITED STATES V. RUMELY, SUPRA; EX PARTE ENDO, 323
U.S. 283, 299; JAPANESE IMMIGRANT CASE, 189 U.S. 86, 101; SEE GREENE V.
MCELROY, SUPRA, AT 507. 

THIRD.  THE INDEFINITENESS OF THE DELEGATION IN THIS CASE ALSO
RESULTS IN INADEQUATE NOTICE TO AFFECTED PERSONS.  ALTHOUGH THE FORM OF
NOTICE PROVIDED FOR IN SEC. 5(B) AFFORDS AFFECTED PERSONS REASONABLE
OPPORTUNITY TO CONFORM THEIR BEHAVIOR TO AVOID PUNISHMENT, IT IS NOT
ENOUGH THAT PERSONS ENGAGED IN ARGUABLY PROTECTED ACTIVITY BE
REASONABLY WELL ADVISED THAT THEIR ACTIONS ARE SUBJECT TO REGULATION. 
PERSONS SO ENGAGED MUST NOT BE COMPELLED TO CONFORM THEIR BEHAVIOR TO
COMMANDS, NO MATTER HOW UNAMBIGUOUS, FROM DELEGATED AGENTS WHOSE
AUTHORITY TO ISSUE THE COMMANDS IS UNCLEAR.  MARCUS V. SEARCH WARRANT,
SUPRA, AT 736.  THE LEGISLATIVE DIRECTIVE MUST DELINEATE THE SCOPE OF
THE AGENT'S AUTHORITY SO THAT THOSE AFFECTED BY THE AGENT'S COMMANDS
MAY KNOW THAT HIS COMMAND IS WITHIN HIS AUTHORITY AND IS NOT HIS OWN
ARBITRARY FIAT.  CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368 U.S. 278;
SCULL V. VIRGINIA, 359 U.S. 344; WATKINS V. UNITED STATES, SUPRA, AT
208-209.  THERE IS NO WAY FOR PERSONS AFFECTED BY SEC. 5(A)(1)(D) TO
KNOW WHETHER THE SECRETARY IS ACTING WITHIN HIS AUTHORITY, AND
THEREFORE NO FAIR BASIS UPON WHICH THEY MAY DETERMINE WHETHER OR NOT TO
RISK DISOBEDIENCE IN THE EXERCISE OF ACTIVITIES NORMALLY PROTECTED. 

OF CRIMINAL PUNISHMENT TO PERSONS SIMPLY BECAUSE OF THEIR POLITICAL
ASSOCIATIONS.  THE GOVERNMENT MAKES NO CLAIM THAT ROBEL IS A SECURITY
RISK.  HE HAS WORKED AS A MACHINIST AT THE SHIPYARDS FOR MANY YEARS,
AND WE ARE TOLD IS WORKING THERE NOW.  WE ARE IN EFFECT INVITED BY THE
GOVERNMENT TO ASSUME THAT ROBEL IS A LAW ABIDING CITIZEN, EARNING A
LIVING AT HIS CHOSEN TRADE.  THE JUSTIFICATION URGED FOR PUNISHING HIM
IS THAT CONGRESS MAY PROPERLY CONCLUDE THAT MEMBERS OF THE COMMUNIST
PARTY, EVEN THOUGH NOMINAL OR INACTIVE MEMBERS AND BELIEVING ONLY IN
CHANGE THROUGH LAWFUL MEANS, ARE MORE LIKELY THAN OTHER CITIZENS TO
ENGAGE IN ACTS OF ESPIONAGE AND SABOTAGE HARMFUL TO OUR NATIONAL
SECURITY.  THIS MAY BE SO.  BUT IN AREAS OF PROTECTED FREEDOMS,
REGULATION BASED UPON MERE ASSOCIATION AND NOT UPON PROOF OF MISCONDUCT
OR EVEN OF INTENTION TO ACT UNLAWFULLY, MUST AT LEAST BE ACCOMPANIED BY
STANDARDS OR PROCEDURAL PROTECTIONS SUFFICIENT TO SAFEGUARD AGAINST
INDISCRIMINATE APPLICATION.  "IF  ...  'LIBERTY' IS TO BE REGULATED, IT
MUST BE PURSUANT TO THE LAW-MAKING FUNCTIONS OF THE CONGRESS  ...  AND
IF THAT POWER IS DELEGATED, THE STANDARDS MUST BE ADEQUATE TO PASS
SCRUTINY BY THE ACCEPTED TESTS."  KENT V. DULLES, 357 U.S. 116, 129. 
FN1  SEE COLE V. YOUNG, 351 U.S. 536, 546:    "IT IS DIFFICULT TO
JUSTIFY SUMMARY SUSPENSIONS AND UNREVIEWABLE DISMISSALS ON LOYALTY
GROUNDS OF EMPLOYEES WHO ARE NOT IN 'SENSITIVE' POSITIONS AND WHO ARE
THUS NOT SITUATED WHERE THEY COULD BRING ABOUT ANY DISCERNIBLE ADVERSE
EFFECTS ON THE NATION'S SECURITY." 

FN2  THE GOVERNMENT ALSO POINTS OUT THAT SEC. 5(A)(1)(D) APPLIES ONLY
TO MEMBERS OF "COMMUNIST-ACTION" ORGANIZATIONS, WHILE SEC. 6 APPLIED
ALSO TO MEMBERS OF "COMMUNIST-FRONT" ORGANIZATIONS, GROUPS WHICH THE
GOVERNMENT CONTENDS ARE LESS DANGEROUS TO THE NATIONAL SECURITY UNDER
CONGRESS' DEFINITIONS, AND WHOSE MEMBERS ARE THEREFORE PRESUMABLY LESS
DANGEROUS.  THIS DISTINCTION IS, HOWEVER, OPEN TO SOME DOUBT.  EVEN IF
A "FRONT" ORGANIZATION, WHICH IS DEFINED AS AN ORGANIZATION EITHER
DOMINATED BY OR PRIMARILY OPERATED FOR THE PURPOSE OF AIDING AND
SUPPORTING "ACTION" ORGANIZATIONS, COULD IN SOME FASHION BE REGARDED AS
LESS DANGEROUS, APTHEKER HELD SEC. 6 INVALID BECAUSE IT FAILED TO
DISCRIMINATE AMONG AFFECTED PERSONS ON THE BASES OF THEIR ACTIVITY AND
COMMITMENT TO UNLAWFUL PURPOSES, AND NOTHING IN THE OPINION INDICATES
THE RESULT WOULD HAVE BEEN DIFFERENT IF CONGRESS HAD BEEN
INDISCRIMINATE IN THESE RESPECTS WITH REGARD ONLY TO "COMMUNIST-ACTION"
GROUP MEMBERS. 

FN3  THE CHOICE OF A PROPHYLACTIC MEASURE "MUST BE VIEWED IN THE
LIGHT OF LESS DRASTIC MEANS FOR ACHIEVING THE SAME BASIC PURPOSE." 
SHELTON V. TUCKER, 364 U.S. 479, 488.  SINCE I WOULD AFFIRM ON ANOTHER
GROUND, HOWEVER, I PUT ASIDE THE QUESTION WHETHER EXISTING SECURITY
PROGRAMS WERE INADEQUATE TO PREVENT SERIOUS, POSSIBLY CATASTROPHIC
CONSEQUENCES. 

CONGRESS REJECTED SUGGESTIONS OF THE PRESIDENT AND THE DEPARTMENT OF
JUSTICE THAT EXISTING SECURITY PROGRAMS WERE ADEQUATE WITH ONLY SLIGHT
MODIFICATIONS.  SEE H.R. DOC. NO. 679, 81ST CONG., 2D SESS., 5 (1950);
HEARINGS ON LEGISLATION TO OUTLAW CERTAIN UN-AMERICAN AND SUBVERSIVE
ACTIVITIES BEFORE THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE, 81ST
CONG., 2D SESS., 2122-2125 (1950).  THOSE PROGRAMS COVER MOST OF THE
FACILITIES WITHIN THE REACH OF SEC.  5(A)(1)(D) AND MAKE PARTY
MEMBERSHIP AN IMPORTANT FACTOR GOVERNING ACCESS.  32 CFR SEC. 155.5. 
THEY PROVIDE MEASURES TO PREVENT AND PUNISH SUBVERSIVE ACTS.  THE
DEPARTMENT OF DEFENSE, MOREOVER, HAD SCREENED SOME 3,000,000 DEFENSE
CONTRACTOR EMPLOYEES UNDER THESE PROCEDURES BY 1956, BROWN, LOYALTY AND
SECURITY 179-180 (1958), THEREBY PROVIDING AT LEAST SOME EVIDENCE OF
ITS CAPACITY TO HANDLE THIS PROBLEM IN A MORE DISCRIMINATING MANNER. 

FN4  CONGRESS, IN FACT, ORIGINALLY PROPOSED TO LIMIT THE SECRETARY'S
DISCRETION IN DESIGNATING "DEFENSE FACILITIES."  H.R. 9490, PASSED BY
BOTH THE HOUSE AND SENATE, PROVIDED THAT THE SECRETARY SHOULD DETERMINE
AND DESIGNATE EACH "DEFENSE PLANT" AS DEFINED IN SEC.  3(7) OF THE
ACT.  THE DIFFERENCE BETWEEN THAT VERSION AND SEC. 5(A)(1)(D) ADOPTED
AT CONFERENCE IS COMMENTED UPON IN H.R. CONF. REP. NO. 3112, 81ST
CONG., 2D SESS., 50 (1950): 

"UNDER SECTION 3(7) A DEFENSE PLANT WAS DEFINED AS ANY PLANT,
FACTORY, OR OTHER MANUFACTURING OR SERVICE ESTABLISHMENT, OR ANY PART
THEREOF, ENGAGED IN THE PRODUCTION OR FURNISHING, FOR THE USE OF THE
GOVERNMENT OF ANY COMMODITY OR SERVICE DETERMINED AND DESIGNATED BY THE
SECRETARY OF DEFENSE TO BE OF SUCH CHARACTER AS TO AFFECT THE MILITARY
SECURITY OF THE UNITED STATES. 

"SECTION 3(7), AND THE PROVISIONS OF SECTION 5 RELATING TO THE
DESIGNATION OF DEFENSE PLANTS BY THE SECRETARY OF DEFENSE, HAVE BEEN
MODIFIED IN THE CONFERENCE SUBSTITUTE SO AS TO BROADEN THE CONCEPT OF
DEFENSE PLANTS TO COVER ANY APPROPRIATELY DESIGNATED PLANT, FACTORY OR
OTHER MANUFACTURING, PRODUCING, OR SERVICE ESTABLISHMENT, AIRPORT,
AIRPORT FACILITY, VESSEL, PIER, WATER-FRONT FACILITY, MINE, RAILROAD,
PUBLIC UTILITY, LABORATORY, STATION, OR OTHER ESTABLISHMENT OR
FACILITY, OR ANY PART, DIVISION, OR DEPARTMENT OF ANY OF THE
FOREGOING.  BECAUSE OF THIS BROADER COVERAGE, SECTION 3(7) HAS BEEN
CHANGED SO AS TO DEFINE THE TWO TERMS 'FACILITY' AND 'DEFENSE
FACILITY.'" 

FN5  THE SECRETARY HAS PUBLISHED CRITERIA WHICH GUIDE HIM IN APPLYING
THE STATUTE: 

"THE LIST OF 'DEFENSE FACILITIES' IS COMPRISED OF (1) FACILITIES
ENGAGED IN IMPORTANT CLASSIFIED MILITARY PROJECTS; (2) FACILITIES
PRODUCING IMPORTANT WEAPONS SYSTEMS, SUBASSEMBLIES AND THEIR
COMPONENTS; (3) FACILITIES PRODUCING ESSENTIAL COMMON COMPONENTS,
INTERMEDIATES, BASIC MATERIALS AND RAW MATERIALS; (4) IMPORTANT UTILITY
AND SERVICE FACILITIES; AND (5) RESEARCH LABORATORIES WHOSE
CONTRIBUTIONS ARE IMPORTANT TO THE NATIONAL DEFENSE.  THE LIST, WHICH
WILL BE AMENDED FROM TIME TO TIME AS NECESSARY, HAS BEEN CLASSIFIED FOR
REASONS OF SECURITY." 

DEPARTMENT OF DEFENSE RELEASE NO. 1363-62, AUG. 20, 1962.  THESE
BROAD STANDARDS, WHICH MIGHT EASILY JUSTIFY APPLYING THE STATUTE TO
MOST OF OUR MAJOR INDUSTRIES, CANNOT BE READ INTO THE STATUTE TO LIMIT
THE SECRETARY'S DISCRETION, SINCE THEY ARE SUBJECT TO UNREVIEWABLE
AMENDMENT. 

FN6  THE STATUTE CONTEMPLATES ONLY FOUR SIGNIFICANT FINDINGS BEFORE
CRIMINAL LIABILITY ATTACHES: (1) THAT THE COMMUNIST PARTY IS A
"COMMUNIST-ACTION ORGANIZATION"; (2) THAT DEFENDANT IS A MEMBER OF THE
COMMUNIST PARTY; (3) THAT DEFENDANT IS ENGAGED IN EMPLOYMENT AT A
"DEFENSE FACILITY"; AND (4) THAT HE HAD NOTICE THAT HIS PLACE OF
EMPLOYMENT WAS A "DEFENSE FACILITY."  THE FIRST FINDING WAS MADE BY THE
SUBVERSIVE ACTIVITIES CONTROL BOARD.  THE THIRD FINDING - THAT THE
SHIPYARD IS A "DEFENSE FACILITY" - WAS MADE BY THE SECRETARY OF
DEFENSE.  THE FOURTH FINDING REFERS TO THE NOTICE OF REQUIREMENT WHICH
IS NO MORE THAN A PRESUMPTION FROM THE POSTING REQUIRED OF THE EMPLOYER
BY SEC. 5(B).  THUS THE ONLY ISSUE WHICH A DEFENDANT CAN EFFECTIVELY
CONTEST IS WHETHER HE IS A COMMUNIST PARTY MEMBER.  IN VIEW OF THE
RESULT WHICH I WOULD REACH, HOWEVER, I NEED NOT CONSIDER APPELLEE'S
ARGUMENT THAT THIS AFFORDS DEFENDANTS ONLY THE SHADOW OF A TRIAL, AND
VIOLATES DUE PROCESS. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE COURT HOLDS THAT BECAUSE OF THE FIRST AMENDMENT A MEMBER OF THE
COMMUNIST PARTY WHO KNOWS THAT THE PARTY HAS BEEN HELD TO BE A
COMMUNIST-ACTION ORGANIZATION MAY NOT BE BARRED FROM EMPLOYMENT IN
DEFENSE ESTABLISHMENTS IMPORTANT TO THE SECURITY OF THE NATION.  IT
THEREFORE REFUSES TO ENFORCE THE CONTRARY JUDGMENTS OF THE LEGISLATIVE
AND EXECUTIVE BRANCHES OF THE GOVERNMENT.  RESPECTFULLY DISAGREEING
WITH THIS VIEW, I DISSENT. 

THE CONSTITUTIONAL RIGHT FOUND TO OVERRIDE THE PUBLIC INTEREST IN
NATIONAL SECURITY DEFINED BY CONGRESS IS THE RIGHT OF ASSOCIATION, HERE
THE RIGHT OF APPELLEE ROBEL TO REMAIN A MEMBER OF THE COMMUNIST PARTY
AFTER BEING NOTIFIED OF ITS ADJUDICATION AS A COMMUNIST-ACTION
ORGANIZATION.  NOTHING IN THE CONSTITUTION REQUIRES THIS RESULT.  THE
RIGHT OF ASSOCIATION IS NOT MENTIONED IN THE CONSTITUTION.  IT IS A
JUDICIAL CONSTRUCT APPENDED TO THE FIRST AMENDMENT RIGHTS TO SPEAK
FREELY, TO ASSEMBLE, AND TO PETITION FOR REDRESS OF GRIEVANCES.  (FN1)
WHILE THE RIGHT OF ASSOCIATION HAS DEEP ROOTS IN HISTORY AND IS
SUPPORTED BY THE INESCAPABLE NECESSITY FOR GROUP ACTION IN A REPUBLIC
AS LARGE AND COMPLEX AS OURS, IT HAS ONLY RECENTLY BLOSSOMED AS THE
CONTROLLING FACTOR IN CONSTITUTIONAL LITIGATION; ITS CONTOURS AS YET
LACK DELINEATION.  ALTHOUGH OFFICIAL INTERFERENCE WITH FIRST AMENDMENT
RIGHTS HAS DRAWN CLOSE SCRUTINY, IT IS NOW APPARENT THAT THE RIGHT OF
ASSOCIATION IS NOT ABSOLUTE AND IS SUBJECT TO SIGNIFICANT REGULATION BY
THE STATE.  THE LAW OF CRIMINAL CONSPIRACY RESTRICTS THE PURPOSES FOR
WHICH MEN MAY ASSOCIATE AND THE MEANS THEY MAY USE TO IMPLEMENT THEIR
PLANS.  LABOR UNIONS, AND MEMBERSHIP IN THEM, ARE INTRICATELY
CONTROLLED BY STATUTES, BOTH FEDERAL AND STATE, AS ARE POLITICAL
PARTIES AND CORPORATIONS. 

THE RELEVANT CASES UNIFORMLY REVEAL THE NECESSITY FOR ACCOMMODATING
THE RIGHT OF ASSOCIATION AND THE PUBLIC INTEREST.  NAACP V. ALABAMA,
357 U.S. 449 (1958), WHICH CONTAINED THE FIRST SUBSTANTIAL DISCUSSION
OF THE RIGHT IN AN OPINION OF THIS COURT, EXEMPLIFIES THE JUDICIAL
APPROACH.  THERE, AFTER NOTING THE IMPACT OF OFFICIAL ACTION ON THE
RIGHT TO ASSOCIATE, THE COURT INQUIRED "WHETHER ALABAMA HAS
DEMONSTRATED AN INTEREST IN OBTAINING THE DISCLOSURES IT SEEKS FROM
PETITIONER WHICH IS SUFFICIENT TO JUSTIFY THE DETERRENT EFFECT WHICH WE
HAVE CONCLUDED THESE DISCLOSURES MAY WELL HAVE ON THE FREE EXERCISE BY
PETITIONER'S MEMBERS OF THEIR CONSTITUTIONALLY PROTECTED RIGHT OF
ASSOCIATION."  357 U.S. AT 463.  THE SAME PATH TO DECISION IS EVIDENT
IN BATES V. CITY OF LITTLE ROCK, 361 U.S. 516 (1960); NAACP V. BUTTON,
371 U.S. 415 (1963); AND RAILROAD TRAINMEN V. VIRGINIA BAR, 377 U.S. 1
(1964).  ONLY LAST WEEK, IN UNITED MINE WORKERS V. ILLINOIS BAR ASSN.,
ANTE, P. 217, THE COURT WEIGHED THE RIGHT TO ASSOCIATE IN AN
ORGANIZATION FURNISHING SALARIED LEGAL SERVICES TO ITS MEMBERS AGAINST
THE STATE'S INTEREST IN INSURING ADEQUATE AND PERSONAL LEGAL
REPRESENTATION, AND FOUND THE STATE'S INTEREST INSUFFICIENT TO JUSTIFY
ITS RESTRICTIONS. 

NOR DOES THE COURT MANDATE A DIFFERENT COURSE IN THIS CASE. 
APPARENTLY "ACTIVE" MEMBERS OF THE COMMUNIST PARTY WHO HAVE
DEMONSTRATED THEIR COMMITMENT TO THE ILLEGAL AIMS OF THE PARTY MAY BE
BARRED FROM DEFENSE FACILITIES.  THIS EXCLUSION WOULD HAVE THE SAME
DETERRENT EFFECT UPON ASSOCIATIONAL RIGHTS AS THE STATUTE BEFORE US,
BUT THE GOVERNMENTAL INTEREST IN SECURITY WOULD OVERRIDE THAT EFFECT. 
ALSO, THE COURT WOULD SEEM TO PERMIT BARRING APPELLEE, ALTHOUGH NOT AN
"ACTIVE" MEMBER OF THE PARTY, FROM EMPLOYMENT IN "SENSITIVE" POSITIONS
IN THE DEFENSE ESTABLISHMENT.   HERE, TOO, THE INTEREST IN ANTICIPATING
AND PREVENTING ESPIONAGE OR SABOTAGE WOULD OUTWEIGH THE DETERRENT
IMPACT OF JOB DISQUALIFICATION.  IF I READ THE COURT CORRECTLY,
ASSOCIATING WITH THE COMMUNIST PARTY MAY AT TIMES BE DETERRED BY
BARRING MEMBERS FROM EMPLOYMENT AND NONMEMBERSHIP MAY AT TIMES BE
IMPOSED AS A CONDITION OF ENGAGING IN DEFENSE WORK.  IN THE CASE BEFORE
US THE COURT SIMPLY DISAGREES WITH THE CONGRESS AND THE DEFENSE
DEPARTMENT, RULING THAT ROBEL DOES NOT PRESENT A SUFFICIENT DANGER TO
THE NATIONAL SECURITY TO REQUIRE HIM TO CHOOSE BETWEEN MEMBERSHIP IN
THE COMMUNIST PARTY AND HIS EMPLOYMENT IN A DEFENSE FACILITY.  HAVING
LESS CONFIDENCE THAN THE MAJORITY IN THE PRESCIENCE OF THIS REMOTE BODY
WHEN DEALING WITH THREATS TO THE SECURITY OF THE COUNTRY, I MUCH PREFER
THE JUDGMENT OF CONGRESS AND THE EXECUTIVE BRANCH THAT THE INTEREST OF
APPELLEE IN REMAINING A MEMBER OF THE COMMUNIST PARTY, KNOWING THAT IT
HAS BEEN ADJUDICATED A COMMUNIST-ACTION ORGANIZATION, IS LESS
SUBSTANTIAL THAN THE PUBLIC INTEREST IN EXCLUDING HIM FROM EMPLOYMENT
IN CRITICAL DEFENSE INDUSTRIES. 

THE NATIONAL INTEREST ASSERTED BY THE CONGRESS IS REAL AND
SUBSTANTIAL.  AFTER YEARS OF STUDY, CONGRESS PREFACED THE SUBVERSIVE
ACTIVITIES CONTROL ACT OF 1950, 64 STAT. 987, 50 U.S.C. SECS. 781-798,
WITH ITS FINDINGS THAT THERE EXISTS AN INTERNATIONAL COMMUNIST MOVEMENT
WHICH BY TREACHERY, DECEIT, ESPIONAGE, AND SABOTAGE SEEKS TO OVERTHROW
EXISTING GOVERNMENTS; THAT THE MOVEMENT OPERATES IN THIS COUNTRY
THROUGH COMMUNIST-ACTION ORGANIZATIONS WHICH ARE UNDER FOREIGN
DOMINATION AND CONTROL AND WHICH SEEK TO OVERTHROW THE GOVERNMENT BY
ANY NECESSARY MEANS, INCLUDING FORCE AND VIOLENCE; THAT THE COMMUNIST
MOVEMENT IN THE UNITED STATES IS MADE UP OF THOUSANDS OF ADHERENTS,
RIGIDLY DISCIPLINED, OPERATING IN SECRECY, AND EMPLOYING ESPIONAGE AND
SABOTAGE TACTICS IN FORM AND MANNER EVASIVE OF EXISTING LAWS.  CONGRESS
THEREFORE, AMONG OTHER THINGS, DEFINED THE CHARACTERISTICS OF COMMUNIST
ACTION ORGANIZATIONS, PROVIDED FOR THEIR ADJUDICATION BY THE SACB, AND
DECIDED THAT THE SECURITY OF THE UNITED STATES REQUIRED THE EXCLUSION
OF COMMUNIST-ACTION ORGANIZATION MEMBERS FROM EMPLOYMENT IN CERTAIN
DEFENSE FACILITIES.  AFTER A LONG AND COMPLEX LITIGATION, THE SACB
FOUND THE COMMUNIST PARTY TO BE A COMMUNIST-ACTION ORGANIZATION WITHIN
THE MEANING OF THE ACT.  THAT CONCLUSION WAS AFFIRMED BOTH BY THE COURT
OF APPEALS, COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 107
U.S. APP. D.C. 279, 277 F.2D 78 (1959), AND THIS COURT, 367 U.S. 1
(1961).  ALSO AFFIRMED WERE THE UNDERLYING DETERMINATIONS, REQUIRED BY
THE ACT, THAT THE PARTY IS DIRECTED OR CONTROLLED BY A FOREIGN
GOVERNMENT OR ORGANIZATION, THAT IT OPERATES PRIMARILY TO ADVANCE THE
AIMS OF THE WORLD COMMUNIST MOVEMENT, AND THAT IT SUFFICIENTLY
SATISFIES THE CRITERIA OF COMMUNIST-ACTION ORGANIZATIONS SPECIFIED BY
50 U.S.C. SEC. 792(E), INCLUDING THE FINDING BY THE BOARD THAT MANY
PARTY MEMBERS ARE SUBJECT TO OR RECOGNIZE THE DISCIPLINE OF THE
CONTROLLING FOREIGN GOVERNMENT OR ORGANIZATION.  THIS COURT ACCEPTED
THE CONGRESSIONAL APPRAISAL THAT THE PARTY POSED A THREAT "NOT ONLY TO
EXISTING GOVERNMENT IN THE UNITED STATES, BUT TO THE UNITED STATES AS A
SOVEREIGN, INDEPENDENT NATION  ...  ."  367 U.S., AT 95. 

AGAINST THIS BACKGROUND PROTECTIVE MEASURES WERE CLEARLY
APPROPRIATE.  ONE OF THEM, CONTAINED IN 50 U.S.C. SEC. 784(A)(1)(D),
WHICH BECAME ACTIVATED WITH THE AFFIRMANCE OF THE PARTY'S DESIGNATION
AS A COMMUNIST-ACTION ORGANIZATION, MAKES IT UNLAWFUL "FOR ANY MEMBER
OF SUCH ORGANIZATION, WITH KNOWLEDGE OR NOTICE  ...  THAT SUCH ORDER
HAS BECOME FINAL  ...  TO ENGAGE IN ANY EMPLOYMENT IN ANY DEFENSE
FACILITY  ...  ."  A DEFENSE FACILITY IS ANY OF THE SPECIFIED TYPES OF
ESTABLISHMENT "WITH RESPECT TO THE OPERATION OF WHICH THE SECRETARY OF
DEFENSE FINDS AND DETERMINES THAT THE SECURITY OF THE UNITED STATES
REQUIRES" THAT MEMBERS OF SUCH ORGANIZATIONS NOT BE EMPLOYED.  GIVEN
THE CHARACTERISTICS OF THE PARTY, ITS FOREIGN DOMINATION, ITS PRIMARY
GOAL OF GOVERNMENT OVERTHROW, THE DISCIPLINE WHICH IT EXERCISES OVER
ITS MEMBERS, AND ITS PROPENSITY FOR ESPIONAGE AND SABOTAGE, THE
EXCLUSION OF MEMBERS OF THE PARTY WHO KNOW THE PARTY IS A COMMUNIST
ACTION ORGANIZATION FROM CERTAIN DEFENSE PLANTS IS WELL WITHIN THE
POWERS OF CONGRESS.    CONGRESS SHOULD BE ENTITLED TO TAKE SUITABLE
PRECAUTIONARY MEASURES.  SOME PARTY MEMBERS MAY BE NO THREAT AT ALL,
BUT MANY OF THEM UNDOUBTEDLY ARE, AND IT IS EXCEEDINGLY DIFFICULT TO
IDENTIFY THOSE IN ADVANCE OF THE VERY EVENTS WHICH CONGRESS SEEKS TO
AVOID.  IF PARTY MEMBERS SUCH AS ROBEL MAY BE BARRED FROM "SENSITIVE
POSITIONS," IT IS BECAUSE THEY ARE POTENTIAL THREATS TO SECURITY.  FOR
THE SAME REASON THEY SHOULD BE EXCLUDABLE FROM EMPLOYMENT IN DEFENSE
PLANTS WHICH CONGRESS AND THE SECRETARY OF DEFENSE CONSIDER OF CRITICAL
IMPORTANCE TO THE SECURITY OF THE COUNTRY. 

THE STATUTE DOES NOT PROHIBIT MEMBERSHIP IN THE COMMUNIST PARTY.  NOR
ARE APPELLEE AND OTHER COMMUNISTS EXCLUDED FROM ALL EMPLOYMENT IN THE
UNITED STATES, OR EVEN FROM ALL DEFENSE PLANTS.  THE TOUCHSTONES FOR
EXCLUSION ARE THE REQUIREMENTS OF NATIONAL SECURITY, AND THE FACILITIES
DESIGNATED UNDER THIS STANDARD AMOUNT TO ONLY ABOUT ONE PERCENT OF ALL
THE INDUSTRIAL ESTABLISHMENTS IN THE UNITED STATES. 

IT IS THIS IMPACT ON ASSOCIATIONAL RIGHTS, ALTHOUGH SPECIFIC AND
MINIMAL, WHICH THE COURT FINDS IMPERMISSIBLE.  BUT AS THE STATUTE'S
DAMPENING EFFECT ON ASSOCIATIONAL RIGHTS IS TO BE WEIGHED AGAINST THE
ASSERTED AND OBVIOUS GOVERNMENT INTEREST IN KEEPING MEMBERS OF
COMMUNIST-ACTION GROUPS FROM DEFENSE FACILITIES, IT WOULD SEEM
IMPORTANT TO IDENTIFY WHAT INTEREST ROBEL HAS IN JOINING AND REMAINING
A MEMBER OF A GROUP WHOSE PRIMARY GOALS HE MAY NOT SHARE.  WE ARE
UNENLIGHTENED, HOWEVER, BY THE OPINION OF THE COURT OR BY THE RECORD IN
THIS CASE, AS TO THE PURPOSES WHICH ROBEL AND OTHERS LIKE HIM MAY HAVE
IN ASSOCIATING WITH THE PARTY.  THE LEGAL AIMS AND PROGRAMS OF THE
PARTY ARE NOT IDENTIFIED OR APPRAISED NOR ARE ROBEL'S ACTIVITIES AS A
MEMBER OF THE PARTY.  THE COURT IS LEFT WITH A VAGUE AND FORMLESS
CONCEPT OF ASSOCIATIONAL RIGHTS AND ITS OWN NOTIONS OF WHAT CONSTITUTES
AN UNREASONABLE RISK TO DEFENSE FACILITIES. 

THE COURT SAYS THAT MERE MEMBERSHIP IN AN ASSOCIATION WITH KNOWLEDGE
THAT THE ASSOCIATION PURSUES UNLAWFUL AIMS CANNOT BE THE BASIS FOR
CRIMINAL PROSECUTION, SCALES V. UNITED STATES, 367 U.S. 203 (1961), OR
FOR DENIAL OF A PASSPORT, APTHEKER V. SECRETARY OF STATE, 378 U.S. 500
(1964).  BUT DENYING THE OPPORTUNITY TO BE EMPLOYED IN SOME DEFENSE
PLANTS IS A MUCH SMALLER DETERRENT TO THE EXERCISE OF ASSOCIATIONAL
RIGHTS THAN DENIAL OF A PASSPORT OR A CRIMINAL PENALTY ATTACHED SOLELY
TO MEMBERSHIP, AND THE GOVERNMENT'S INTEREST IN KEEPING POTENTIAL SPIES
AND SABOTEURS FROM DEFENSE PLANTS IS MUCH GREATER THAN ITS INTEREST IN
KEEPING DISLOYAL AMERICANS FROM TRAVELING ABROAD OR IN COMMITTING ALL
PARTY MEMBERS TO PRISON.  THE "DELICATE AND DIFFICULT" JUDGMENT TO
WHICH THE COURT REFERS SHOULD THUS RESULT IN A DIFFERENT CONCLUSION
FROM THAT REACHED IN THE SCALES AND APTHEKER CASES.  (FN2) 

THE COURT'S MOTIVES ARE WORTHY.  IT SEEKS THE WIDEST BOUNDS FOR THE
EXERCISE OF INDIVIDUAL LIBERTY CONSISTENT WITH THE SECURITY OF THE
COUNTRY.  IN SO DOING IT ARROGATES TO ITSELF AN INDEPENDENT JUDGMENT OF
THE REQUIREMENTS OF NATIONAL SECURITY.  THESE ARE MATTERS ABOUT WHICH
JUDGES SHOULD BE WARY.  JAMES MADISON WROTE: 

"SECURITY AGAINST FOREIGN DANGER IS ONE OF THE PRIMITIVE OBJECTS OF
CIVIL SOCIETY  ... . 

"  ...  THE MEANS OF SECURITY CAN ONLY BE REGULATED BY THE MEANS AND
THE DANGER OF ATTACK.  THEY WILL IN FACT BE EVER DETERMINED BY THESE
RULES, AND BY NO OTHERS.  IT IS IN VAIN TO OPPOSE CONSTITUTIONAL
BARRIERS TO THE IMPULSE OF SELF-PRESERVATION.  IT IS WORSE THAN IN
VAIN; BECAUSE IT PLANTS IN THE CONSTITUTION ITSELF NECESSARY
USURPATIONS OF POWER, EVERY PRECEDENT OF WHICH IS A GERM OF UNNECESSARY
AND MULTIPLIED REPETITIONS."  (FN3) 

FN1  IF MEN MAY SPEAK AS INDIVIDUALS, THEY MAY SPEAK IN GROUPS AS
WELL.  IF THEY MAY ASSEMBLE AND PETITION, THEY MUST HAVE THE RIGHT TO
ASSOCIATE TO SOME EXTENT.  IN THIS SENSE, THE RIGHT OF ASSOCIATION
SIMPLY EXTENDS CONSTITUTIONAL PROTECTION TO FIRST AMENDMENT RIGHTS WHEN
EXERCISED WITH OTHERS RATHER THAN BY AN INDIVIDUAL ALONE.  IN NAACP V.
ALABAMA, THE COURT SAID THAT THE FREEDOM TO ASSOCIATE FOR THE
ADVANCEMENT OF BELIEFS AND IDEAS IS CONSTITUTIONALLY PROTECTED AND THAT
IT IS "IMMATERIAL WHETHER THE BELIEFS SOUGHT TO BE ADVANCED BY
ASSOCIATION PERTAIN TO POLITICAL, ECONOMIC, RELIGIOUS OR CULTURAL
MATTERS  ...  ."  357 U.S. 449, 460 (1958).  THAT CASE INVOLVED THE
PROPAGATION OF IDEAS BY A GROUP AS WELL AS LITIGATION AS A FORM OF
PETITION.  THE LATTER FIRST AMENDMENT ELEMENT WAS ALSO INVOLVED IN
NAACP V. BUTTON, 371 U.S. 415 (1963); RAILROAD TRAINMEN V. VIRGINIA
BAR, 377 U.S. 1 (1964); AND UNITED MINE WORKERS V. ILLINOIS BAR ASSN.,
ANTE, P. 217.  THE ACTIVITIES IN EASTERN R. PRESIDENTS CONFERENCE V.
NOERR MOTOR FREIGHT, INC., 365 U.S. 127 (1961), ALTHOUGH COMMERCIALLY
MOTIVATED, WERE AIMED AT INFLUENCING LEGISLATIVE ACTION.  WHETHER THE
RIGHT TO ASSOCIATE IS AN INDEPENDENT FIRST AMENDMENT RIGHT CARRYING ITS
OWN CREDENTIALS AND WILL BE CARRIED BEYOND THE IMPLEMENTATION OF OTHER
FIRST AMENDMENT RIGHTS AWAITS A DEFINITIVE ANSWER.  IN THIS CONNECTION
IT SHOULD BE NOTED THAT THE COURT RECENTLY DISMISSED, AS NOT PRESENTING
A SUBSTANTIAL FEDERAL QUESTION, AN APPEAL CHALLENGING FLORIDA
REGULATIONS WHICH FORBID A FLORIDA ACCOUNTANT FROM ASSOCIATING IN HIS
WORK, WHETHER AS PARTNER OR EMPLOYEE, WITH ANY NONRESIDENT ACCOUNTANT;
OUT-OF-STATE ASSOCIATIONS ARE BARRED FROM THE STATE UNLESS EVERY
PARTNER IS A QUALIFIED FLORIDA ACCOUNTANT, AND IN PRACTICE ONLY FLORIDA
RESIDENTS CAN BECOME QUALIFIED THERE.  MERCER V. HEMMINGS, ANTE, P.
46. 

FN2  I CANNOT AGREE WITH MY BROTHER BRENNAN THAT CONGRESS DELEGATED
IMPROPERLY WHEN IT AUTHORIZED THE SECRETARY OF DEFENSE TO DETERMINE
"WITH RESPECT TO THE OPERATION OF WHICH DEFENSE FACILITIES ...  THE
SECURITY OF THE UNITED STATES REQUIRES THE APPLICATION OF THE
PROVISIONS OF SUBSECTION (A) OF THIS SECTION."  RATHER I THINK THIS IS
PRECISELY THE SORT OF APPLICATION OF A LEGISLATIVE DETERMINATION TO
SPECIFIC FACTS WITHIN THE ADMINISTRATOR'S EXPERTISE THAT TODAY'S
COMPLEX GOVERNMENTAL STRUCTURE REQUIRES AND THAT THIS COURT HAS
FREQUENTLY UPHELD.  E.G., YAKUS V. UNITED STATES, 321 U.S. 414 (1944). 
I WOULD REJECT ALSO APPELLEE'S CONTENTION THAT THE STATUTE IS A BILL OF
ATTAINDER.  SEE UNITED STATES V. BROWN, 381 U.S. 437, 462 (1965)(WHITE,
J., DISSENTING). 

FN3  THE FEDERALIST NO. 41, PP. 269-270 (COOKE ED. 1961). 
..END :







HUGHES V. WASHINGTON 389 U.S. 290 


NO. 15.  ARGUED NOVEMBER 6, 1967 - DECIDED DECEMBER 11, 1967 - 67 WASH.
2D 799, 410 P.2D 20, REVERSED AND REMANDED. 


PETITIONER'S PREDECESSOR IN TITLE RECEIVED FROM THE FEDERAL GOVERNMENT
A GRANT OF OCEAN-FRONT REALTY IN WHAT IS NOW THE STATE OF WASHINGTON. 
THE STATE ASSERTS THAT WHEN IT ACQUIRED STATEHOOD IN 1889, ITS NEW
CONSTITUTION DENIED OCEAN-FRONT PROPERTY OWNERS ANY FURTHER RIGHTS IN
ACCRETION THAT MIGHT BE FORMED BETWEEN THEIR PROPERTY AND THE OCEAN. 
THE TRIAL COURT UPHELD PETITIONER'S CONTENTION THAT THE RIGHT TO
ACCRETION REMAINED SUBJECT TO FEDERAL LAW AND THAT SHE WAS THE OWNER OF
THE ACCRETED LANDS.  THE STATE SUPREME COURT, REVERSED, HOLDING THAT
STATE LAW CONTROLLED AND THAT THE STATE OWNED THE LANDS.  HELD:  THIS
QUESTION IS GOVERNED BY FEDERAL LAW, UNDER WHICH A GRANTEE OF LAND
BOUNDED BY NAVIGABLE WATER ACQUIRES A RIGHT TO ACCRETION FORMED ALONG
THE SHORE; AND THE PETITIONER, WHO TRACES HER TITLE TO A FEDERAL GRANT
PRIOR TO STATEHOOD, IS THE OWNER OF THESE ACCRETIONS.  PP. 291-294. 

HUGHES V. WASHINGTON. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER FEDERAL OR STATE LAW CONTROLS
THE OWNERSHIP OF LAND, CALLED ACCRETION, GRADUALLY DEPOSITED BY THE
OCEAN ON ADJOINING UPLAND PROPERTY CONVEYED BY THE UNITED STATES PRIOR
TO STATEHOOD.  THE CIRCUMSTANCES THAT GIVE RISE TO THE QUESTION ARE
THESE.  PRIOR TO 1889 ALL LAND IN WHAT IS NOW THE STATE OF WASHINGTON
WAS OWNED BY THE UNITED STATES, EXCEPT LAND THAT HAD BEEN CONVEYED TO
PRIVATE PARTIES.  AT THAT TIME OWNERS OF PROPERTY BORDERING THE OCEAN,
SUCH AS THE PREDECESSOR IN TITLE OF MRS. STELLA HUGHES, THE PETITIONER
HERE, HAD UNDER THE COMMON LAW A RIGHT TO INCLUDE WITHIN THEIR LANDS
ANY ACCRETION GRADUALLY BUILT UP BY THE OCEAN.  (FN1) WASHINGTON BECAME
A STATE IN 1889, AND ARTICLE 17 OF THE STATE'S NEW CONSTITUTION, AS
INTERPRETED BY ITS SUPREME COURT, DENIED THE OWNERS OF OCEAN-FRONT
PROPERTY IN THE STATE ANY FURTHER RIGHTS IN ACCRETION THAT MIGHT IN THE
FUTURE BE FORMED BETWEEN THEIR PROPERTY AND THE OCEAN.  THIS IS A SUIT
BROUGHT BY MRS. HUGHES, THE SUCCESSOR IN TITLE TO THE ORIGINAL FEDERAL
GRANTEE, AGAINST THE STATE OF WASHINGTON AS OWNER OF THE TIDELANDS TO
DETERMINE WHETHER THE RIGHT TO FUTURE ACCRETIONS WHICH EXISTED UNDER
FEDERAL LAW IN 1889 WAS ABOLISHED BY THAT PROVISION OF THE WASHINGTON
CONSTITUTION.  THE TRIAL COURT UPHELD MRS. HUGHES' CONTENTION THAT THE
RIGHT TO ACCRETIONS REMAINED SUBJECT TO FEDERAL LAW, AND THAT SHE WAS
THE OWNER OF THE ACCRETED LANDS.  THE STATE SUPREME COURT REVERSED,
HOLDING THAT STATE LAW CONTROLLED AND THAT THE STATE OWNED THESE
LANDS.  67 WASH. 2D 799, 410 P.2D 20 (1966).  WE GRANTED CERTIORARI. 
385 U.S. 1000 (1967).  WE HOLD THAT THIS QUESTION IS GOVERNED BY
FEDERAL, NOT STATE, LAW AND THAT UNDER FEDERAL LAW MRS. HUGHES, WHO
TRACES HER TITLE TO A FEDERAL GRANT PRIOR TO STATEHOOD, IS THE OWNER OF
THESE ACCRETIONS. 

WHILE THE ISSUE APPEARS NEVER TO HAVE BEEN SQUARELY PRESENTED TO THIS
COURT BEFORE, WE THINK THE PATH TO DECISION IS INDICATED BY OUR HOLDING
IN BORAX, LTD. V. LOS ANGELES, 296 U.S. 10 (1935).  IN THAT CASE WE
DEALT WITH THE RIGHTS OF A CALIFORNIA PROPERTY OWNER WHO HELD UNDER A
FEDERAL PATENT, AND IN THAT INSTANCE, UNLIKE THE PRESENT CASE, THE
PATENT WAS ISSUED AFTER STATEHOOD.  WE HELD THAT:

"THE QUESTION AS TO THE EXTENT OF THIS FEDERAL GRANT, THAT IS, AS TO
THE LIMIT OF THE LAND CONVEYED, OR THE BOUNDARY BETWEEN THE UPLAND AND
THE TIDELAND, IS NECESSARILY A FEDERAL QUESTION.  IT IS A QUESTION
WHICH CONCERNS THE VALIDITY AND EFFECT OF AN ACT DONE BY THE UNITED
STATES; IT INVOLVES THE ASCERTAINMENT OF THE ESSENTIAL BASIS OF A RIGHT
ASSERTED UNDER FEDERAL LAW."  296 U.S. AT 22. 

NO SUBSEQUENT CASE IN THIS COURT HAS CAST DOUBT ON THE PRINCIPLE
ANNOUNCED IN BORAX.  SEE ALSO UNITED STATES V. OREGON, 295 U.S. 1, 27
28 (1935).  THE STATE ARGUES, AND THE COURT BELOW HELD, HOWEVER, THAT
THE BORAX CASE SHOULD NOT BE APPLIED HERE BECAUSE THAT CASE INVOLVED NO
QUESTION AS TO ACCRETIONS.  WHILE THIS IS TRUE, THE CASE DID INVOLVE
THE QUESTION AS TO WHAT RIGHTS WERE CONVEYED BY THE FEDERAL GRANT AND
DECIDED THAT THE EXTENT OF OWNERSHIP UNDER THE FEDERAL GRANT IS
GOVERNED BY FEDERAL LAW.  THIS IS AS TRUE WHETHER DOUBT AS TO ANY
BOUNDARY IS BASED ON A BROAD QUESTION AS TO THE GENERAL DEFINITION OF
THE SHORELINE OR ON A PARTICULARIZED PROBLEM RELATING TO THE OWNERSHIP
OF ACCRETION.  SEE UNITED STATES V. WASHINGTON, 294 F.2D 830, 832 (C.A.
9TH CIR. 1961), CERT. DENIED, 369 U.S. 817 (1962).  WE THEREFORE FIND
NO SIGNIFICANT DIFFERENCE BETWEEN BORAX AND THE PRESENT CASE. 

RECOGNIZING THE DIFFICULTY OF DISTINGUISHING BORAX, RESPONDENT URGES
US TO RECONSIDER IT.  BORAX ITSELF, AS WELL AS UNITED STATES V. OREGON,
SUPRA, AND MANY OTHER CASES, MAKES CLEAR THAT A DISPUTE OVER TITLE TO
LANDS OWNED BY THE FEDERAL GOVERNMENT IS GOVERNED BY FEDERAL LAW,
ALTHOUGH OF COURSE THE FEDERAL GOVERNMENT MAY, IF IT DESIRES, CHOOSE TO
SELECT A STATE RULE AS THE FEDERAL RULE.  BORAX HOLDS THAT THERE HAS
BEEN NO SUCH CHOICE IN THIS AREA, AND WE HAVE NO DIFFICULTY IN
CONCLUDING THAT BORAX WAS CORRECTLY DECIDED.  THE RULE DEALS WITH
WATERS THAT LAP BOTH THE LANDS OF THE STATE AND THE BOUNDARIES OF THE
INTERNATIONAL SEA.  THIS RELATIONSHIP, AT THIS PARTICULAR POINT OF THE
MARGINAL SEA, IS TOO CLOSE TO THE VITAL INTEREST OF THE NATION IN ITS
OWN BOUNDARIES TO ALLOW IT TO BE GOVERNED BY ANY LAW BUT THE "SUPREME
LAW OF THE LAND." 

THIS BRINGS US TO THE QUESTION OF WHAT THE FEDERAL RULE IS.  THE
STATE HAS NOT ATTEMPTED TO ARGUE THAT FEDERAL LAW GIVES IT TITLE TO
THESE ACCRETIONS, AND IT SEEMS CLEAR TO US THAT IT COULD NOT.  A LONG
AND UNBROKEN LINE OF DECISIONS OF THIS COURT ESTABLISHES THAT THE
GRANTEE OF LAND BOUNDED BY A BODY OF NAVIGABLE WATER ACQUIRES A RIGHT
TO ANY NATURAL AND GRADUAL ACCRETION FORMED ALONG THE SHORE.  IN JONES
V. JOHNSTON, 18 HOW.  150 (1856), A DISPUTE BETWEEN TWO PARTIES OWNING
LAND ALONG LAKE MICHIGAN OVER THE OWNERSHIP OF SOIL THAT HAD GRADUALLY
BEEN DEPOSITED ALONG THE SHORE, THIS COURT HELD THAT "LAND GAINED FROM
THE SEA EITHER BY ALLUVION OR DERELICTION, IF THE SAME BE BY LITTLE AND
LITTLE, BY SMALL AND IMPERCEPTIBLE DEGREES, BELONGS TO THE OWNER  OF
THE LAND ADJOINING."   18 HOW., AT 156.  THE COURT HAS REPEATEDLY
REAFFIRMED THIS RULE, COUNTY OF ST. CLAIR V. LOVINGSTON, 23 WALL.  46
(1874); JEFFERIS V. EAST OMAHA LAND CO., 134 U.S. 178 (1890), (FN2) AND
THE SOUNDNESS OF THE PRINCIPLE IS SCARCELY OPEN TO QUESTION.  ANY OTHER
RULE WOULD LEAVE RIPARIAN OWNERS CONTINUALLY IN DANGER OF LOSING THE
ACCESS TO WATER WHICH IS OFTEN THE MOST VALUABLE FEATURE OF THEIR
PROPERTY, AND CONTINUALLY VULNERABLE TO HARASSING LITIGATION
CHALLENGING THE LOCATION OF THE ORIGINAL WATER LINES.  WHILE IT IS TRUE
THAT THESE RIPARIAN RIGHTS ARE TO SOME EXTENT INSECURE IN ANY EVENT,
SINCE THEY ARE SUBJECT TO CONSIDERABLE CONTROL BY THE NEIGHBORING OWNER
OF THE TIDELAND, (FN3)  THIS IS INSUFFICIENT REASON TO LEAVE THESE
VALUABLE RIGHTS AT THE MERCY OF NATURAL PHENOMENA WHICH MAY IN NO WAY
AFFECT THE INTERESTS OF THE TIDELAND OWNER.  SEE STEVENS V. ARNOLD, 262
U.S. 266, 269-270 (1923).  WE THEREFORE HOLD THAT PETITIONER IS
ENTITLED TO THE ACCRETION THAT HAS BEEN GRADUALLY FORMED ALONG HER
PROPERTY BY THE OCEAN. 

THE JUDGMENT BELOW IS REVERSED, AND THE CASE IS REMANDED TO THE
SUPREME COURT OF WASHINGTON FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  JONES V. JOHNSTON, 18 HOW.  150 (1856); COUNTY OF ST. CLAIR V.
LOVINGSTON, 23 WALL.  46 (1874). 

FN2  IN KER & CO. V. COUDEN, 223 U.S. 268 (1912), MR. JUSTICE HOLMES,
WRITING FOR THE COURT, HELD THAT UNDER THE GOVERNING SPANISH LAW, LANDS
ADDED TO THE SHORE BY ACCRETION IN THE PHILIPPINES BELONGED TO THE
PUBLIC DOMAIN RATHER THAN TO THE ADJACENT ESTATE. 

FN3  IT HAS BEEN HELD THAT A STATE MAY, WITHOUT PAYING COMPENSATION,
DEPRIVE A RIPARIAN OWNER OF HIS COMMON-LAW RIGHT TO UTILIZE THE FLOWING
WATER, ST. ANTHONY FALLS WATER POWER CO. V. WATER COMM'RS, 168 U.S. 349
(1897), OR TO BUILD A WHARF OVER THE WATER, SHIVELY V. BOWLBY, 152 U.S.
1 (1894).  IT HAS ALSO BEEN HELD THAT THE STATE MAY FILL ITS TIDELANDS
AND THUS BLOCK THE RIPARIAN OWNER'S NATURAL ACCESS TO THE WATER.  PORT
OF SEATTLE V. OREGON & W.R.  CO., 255 U.S. 56 (1921). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART, CONCURRING. 

I FULLY AGREE THAT THE EXTENT OF THE 1866 FEDERAL GRANT TO WHICH MRS.
HUGHES TRACES HER OWNERSHIP WAS ORIGINALLY MEASURABLE BY FEDERAL COMMON
LAW, AND THAT UNDER THE APPLICABLE FEDERAL RULE HER PREDECESSOR IN
TITLE ACQUIRED THE RIGHT TO ALL ACCRETIONS GRADUALLY BUILT UP BY THE
SEA.  FOR ME, HOWEVER, THAT DOES NOT END THE MATTER.  FOR THE SUPREME
COURT OF WASHINGTON DECIDED IN 1966, IN THE CASE NOW BEFORE US, THAT
WASHINGTON TERMINATED THE RIGHT TO OCEANFRONT ACCRETIONS WHEN IT BECAME
A STATE IN 1889.  THE STATE CONCEDES THAT THE FEDERAL GRANT IN QUESTION
CONFERRED SUCH A RIGHT PRIOR TO 1889.  BUT THE STATE PURPORTS TO HAVE
RESERVED ALL POST-1889 ACCRETIONS FOR THE PUBLIC DOMAIN.  MRS. HUGHES
IS ENTITLED TO THE BEACH SHE CLAIMS IN THIS CASE ONLY IF THE STATE
FAILED IN ITS EFFORT TO ABOLISH ALL PRIVATE RIGHTS TO SEASHORE
ACCRETIONS. 

SURELY IT MUST BE CONCEDED AS A GENERAL PROPOSITION THAT THE LAW OF
REAL PROPERTY IS, UNDER OUR CONSTITUTION, LEFT TO THE INDIVIDUAL STATES
TO DEVELOP AND ADMINISTER.  AND SURELY WASHINGTON OR ANY OTHER STATE IS
FREE TO MAKE CHANGES, EITHER LEGISLATIVE OR JUDICIAL, IN ITS GENERAL
RULES OF REAL PROPERTY LAW, INCLUDING THE RULES GOVERNING THE PROPERTY
RIGHTS OF RIPARIAN OWNERS.  NOR ARE RIPARIAN OWNERS WHO DERIVE THEIR
TITLE FROM THE UNITED STATES SOMEHOW IMMUNE FROM THE CHANGING IMPACT OF
THESE GENERAL STATE RULES.  JOY V. ST. LOUIS, 201 U.S. 332, 342.  FOR
IF THEY WERE, THEN THE PROPERTY LAW OF A STATE LIKE WASHINGTON, CARVED
ENTIRELY OUT OF FEDERAL TERRITORY, WOULD BE FOREVER FROZEN INTO THE
MOLD IT OCCUPIED ON THE DATE OF THE STATE'S ADMISSION TO THE UNION.  IT
FOLLOWS THAT MRS. HUGHES CANNOT CLAIM IMMUNITY FROM CHANGES IN THE
PROPERTY LAW OF WASHINGTON SIMPLY BECAUSE HER TITLE DERIVES FROM A
FEDERAL GRANT.  LIKE ANY OTHER PROPERTY OWNER, HOWEVER, MRS. HUGHES MAY
INSIST, QUITE APART FROM THE FEDERAL ORIGIN OF HER TITLE, THAT THE
STATE NOT TAKE HER LAND WITHOUT JUST COMPENSATION.  CHICAGO, B.&Q.R.
CO. V. CHICAGO, 166 U.S. 226, 236-241. 

ACCORDINGLY, IF ARTICLE 17 OF THE WASHINGTON CONSTITUTION HAD
UNAMBIGUOUSLY PROVIDED, IN 1889, THAT ALL ACCRETIONS ALONG THE
WASHINGTON COAST FROM THAT DAY FORWARD WOULD BELONG TO THE STATE RATHER
THAN TO PRIVATE RIPARIAN OWNERS, THIS CASE WOULD PRESENT TWO QUESTIONS
NOT DISCUSSED BY THE COURT, BOTH OF WHICH I THINK EXCEEDINGLY
DIFFICULT.  FIRST:  DOES SUCH A PROSPECTIVE CHANGE IN STATE PROPERTY
LAW CONSTITUTE A COMPENSABLE TAKING?  SECOND:  IF SO, DOES THE
CONSTITUTIONAL RIGHT TO COMPENSATION RUN WITH THE LAND, SO AS TO GIVE
NOT ONLY THE 1889 OWNER, BUT ALSO HIS SUCCESSORS - INCLUDING MRS.
HUGHES - A VALID CLAIM AGAINST THE STATE? 

THE FACT, HOWEVER, IS THAT ARTICLE 17 CONTAINED NO SUCH UNAMBIGUOUS
PROVISION.  IN THAT ARTICLE, THE STATE SIMPLY ASSERTED ITS OWNERSHIP OF
"THE BEDS AND SHORES OF ALL NAVIGABLE WATERS IN THE STATE UP TO AND
INCLUDING THE LINE OF ORDINARY HIGH TIDE, IN WATERS WHERE THE TIDE EBBS
AND FLOWS, AND UP TO AND INCLUDING THE LINE OF ORDINARY HIGH WATER
WITHIN THE BANKS OF ALL NAVIGABLE RIVERS AND LAKES."  IN THE PRESENT
CASE THE SUPREME COURT OF WASHINGTON HELD THAT, BY THIS 1889 LANGUAGE,
"LITTORAL RIGHTS OF UPLAND OWNERS WERE TERMINATED."  67 WASH. 2D 799,
816, 410 P.2D 20, 29.  SUCH A CONCLUSION BY THE STATE'S HIGHEST COURT
ON A QUESTION OF STATE LAW WOULD ORDINARILY BIND THIS COURT, BUT HERE
THE STATE AND FEDERAL QUESTIONS ARE INEXTRICABLY INTERTWINED.  FOR IF
IT CANNOT REASONABLY BE SAID THAT THE LITTORAL RIGHTS OF UPLAND OWNERS
WERE TERMINATED IN 1889, THEN THE EFFECT OF THE DECISION NOW BEFORE US
IS TO TAKE FROM THESE OWNERS, WITHOUT COMPENSATION, LAND DEPOSITED BY
THE PACIFIC OCEAN FROM 1889 TO 1966. 

WE CANNOT RESOLVE THE FEDERAL QUESTION WHETHER THERE HAS BEEN SUCH A
TAKING WITHOUT FIRST MAKING A DETERMINATION OF OUR OWN AS TO WHO OWNED
THE SEASHORE ACCRETIONS BETWEEN 1889 AND 1966.  TO THE EXTENT THAT THE
DECISION OF THE SUPREME COURT OF WASHINGTON ON THAT ISSUE ARGUABLY
CONFORMS TO REASONABLE EXPECTATIONS, WE MUST OF COURSE ACCEPT IT AS
CONCLUSIVE.  BUT TO THE EXTENT THAT IT CONSTITUTES A SUDDEN CHANGE IN
STATE LAW, UNPREDICTABLE IN TERMS OF THE RELEVANT PRECEDENTS, NO SUCH
DEFERENCE WOULD BE APPROPRIATE.  FOR A STATE CANNOT BE PERMITTED TO
DEFEAT THE CONSTITUTIONAL PROHIBITION AGAINST TAKING PROPERTY WITHOUT
DUE PROCESS OF LAW BY THE SIMPLE DEVICE OF ASSERTING RETROACTIVELY THAT
THE PROPERTY IT HAS TAKEN NEVER EXISTED AT ALL.  WHETHER THE DECISION
HERE WORKED AN UNPREDICTABLE CHANGE IN STATE LAW THUS INEVITABLY
PRESENTS A FEDERAL QUESTION FOR THE DETERMINATION OF THIS COURT.  SEE
DEMOREST V. CITY BANK CO., 321 U.S. 36, 42-43.  CF. INDIANA EX REL.
ANDERSON V. BRAND, 303 U.S. 95.  THE WASHINGTON COURT INSISTED THAT ITS
DECISION WAS "NOT STARTLING."  67 WASH. 2D 799 814, 410 P.2D 20, 28. 
WHAT IS AT ISSUE HERE IS THE ACCURACY OF THAT CHARACTERIZATION. 

THE STATE COURT RESTED ITS RESULT UPON EISENBACH V. HATFIELD, 2 WASH.
236, 26 P. 539, BUT THAT DECISION INVOLVED ONLY THE RELATIVE RIGHTS OF
THE STATE AND THE UPLAND OWNER IN THE TIDELANDS THEMSELVES.  THE
EISENBACH COURT DECLINED TO RESOLVE THE ACCRETIONS QUESTION PRESENTED
HERE.  THIS QUESTION WAS RESOLVED IN 1946, IN GHIONE V. STATE, 26 WASH.
2D 635, 175 P.2D 955.  THERE THE STATE ASSERTED, AS IT DOES HERE, THAT
ARTICLE 17 OPERATED TO DEPRIVE PRIVATE RIPARIAN OWNERS OF POST-1889
ACCRETIONS.  THE WASHINGTON SUPREME COURT REJECTED THAT ASSERTION IN
GHIONE AND HELD THAT, AFTER 1889 AS BEFORE, TITLE TO GRADUAL ACCRETIONS
UNDER WASHINGTON LAW VESTED IN THE OWNER OF THE ADJOINING LAND.  IN THE
PRESENT CASE, 20 YEARS AFTER ITS GHIONE DECISION, THE WASHINGTON
SUPREME COURT REACHED A DIFFERENT CONCLUSION.  THE STATE COURT IN THIS
CASE SOUGHT TO DISTINGUISH GHIONE: THE WATER THERE INVOLVED WAS PART OF
A RIVER.  BUT THE GHIONE COURT HAD EMPHATICALLY STATED THAT THE SAME
"RULE OF ACCRETION  ...  APPLIES TO BOTH TIDEWATERS AND FRESH WATERS." 
26 WASH. 2D 635, 645, 175 P.2D 955, 961.  I CAN ONLY CONCLUDE, AS DID
THE DISSENTING JUDGE BELOW, THAT THE STATE COURT'S MOST RECENT
CONSTRUCTION OF ARTICLE 17 EFFECTED AN UNFORESEEABLE CHANGE IN
WASHINGTON PROPERTY LAW AS EXPOUNDED BY THE STATE SUPREME COURT. 
THERE CAN BE LITTLE DOUBT ABOUT THE IMPACT OF THAT CHANGE UPON MRS.
HUGHES:  THE BEACH SHE HAD EVERY REASON TO REGARD AS HERS WAS DECLARED
BY THE STATE COURT TO BE IN THE PUBLIC DOMAIN.  OF COURSE THE COURT DID
NOT CONCEIVE OF THIS ACTION AS A TAKING.  AS IS SO OFTEN THE CASE WHEN
A STATE EXERCISES ITS POWER TO MAKE LAW, OR TO REGULATE, OR TO PURSUE A
PUBLIC PROJECT, PRE-EXISTING PROPERTY INTERESTS WERE IMPAIRED HERE
WITHOUT ANY CALCULATED DECISION TO DEPRIVE ANYONE OF WHAT HE ONCE
OWNED.  BUT THE CONSTITUTION MEASURES A TAKING OF PROPERTY NOT BY WHAT
A STATE SAYS, OR BY WHAT IT INTENDS, BUT BY WHAT IT DOES.  ALTHOUGH THE
STATE IN THIS CASE MADE NO ATTEMPT TO TAKE THE ACCRETED LANDS BY
EMINENT DOMAIN, IT ACHIEVED THE SAME RESULT BY EFFECTING A RETROACTIVE
TRANSFORMATION OF PRIVATE INTO PUBLIC PROPERTY - WITHOUT PAYING FOR THE
PRIVILEGE OF DOING SO. BECAUSE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT FORBIDS SUCH CONFISCATION BY A STATE, NO LESS THROUGH ITS
COURTS THAN THROUGH ITS LEGISLATURE, AND NO LESS WHEN A TAKING IS
UNINTENDED THAN WHEN IT IS DELIBERATE, I JOIN IN REVERSING THE
JUDGMENT. 
..END :










UNITED STATES V. CORRELL 389 U.S. 299 


NO. 113.  ARGUED NOVEMBER 14, 1967 - DECIDED DECEMBER 11, 1967 - 369
F.2D 87, REVERSED. 


THE COMMISSIONER OF INTERNAL REVENUE'S LONG-STANDING RULING THAT
"TRAVELING EXPENSES" INCURRED IN THE PURSUIT OF BUSINESS "WHILE AWAY
FROM HOME," WHICH ARE DEDUCTIBLE UNDER SEC 162(A)(2) OF THE INTERNAL
REVENUE CODE OF 1954, INCLUDE THE COST OF MEALS ONLY IF THE TRIP
REQUIRES SLEEP OR REST, HELD TO ACHIEVE NOT ONLY EASE AND CERTAINTY OF
APPLICATION BUT ALSO SUBSTANTIAL FAIRNESS AND TO BE WITHIN THE
COMMISSIONER'S AUTHORITY TO IMPLEMENT THE STATUTE IN ANY REASONABLE
MANNER.  PP. 301-307. 

UNITED STATES V. CORRELL ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE COMMISSIONER OF INTERNAL REVENUE HAS LONG MAINTAINED THAT A
TAXPAYER TRAVELING ON BUSINESS MAY DEDUCT THE COST OF HIS MEALS ONLY IF
HIS TRIP REQUIRES HIM TO STOP FOR SLEEP OR REST.  THE QUESTION
PRESENTED HERE IS THE VALIDITY OF THAT RULE. 

THE RESPONDENT IN THIS CASE WAS A TRAVELING SALESMAN FOR A WHOLESALE
GROCERY COMPANY IN TENNESSEE.   (FN1)  HE CUSTOMARILY LEFT HOME EARLY
IN THE MORNING, ATE BREAKFAST AND LUNCH ON THE ROAD, AND RETURNED HOME
IN TIME FOR DINNER.  IN HIS INCOME TAX RETURNS FOR 1960 AND 1961, HE
DEDUCTED THE COST OF HIS MORNING AND NOON MEALS AS "TRAVELING EXPENSES"
INCURRED IN THE PURSUIT OF HIS BUSINESS "WHILE AWAY FROM HOME" UNDER
SEC 162(A)(2) OF THE INTERNAL REVENUE CODE OF 1954.  (FN2)  BECAUSE THE
RESPONDENT'S DAILY TRIPS REQUIRED NEITHER SLEEP NOR REST, THE
COMMISSIONER DISALLOWED THE DEDUCTIONS, RULING THAT THE COST OF THE
RESPONDENT'S MEALS WAS A "PERSONAL, LIVING" EXPENSE UNDER SEC. 262
(FN3) RATHER THAN A TRAVEL EXPENSE UNDER SEC. 162(A)(2).  THE
RESPONDENT PAID THE TAX, SUED FOR A REFUND IN THE DISTRICT COURT, AND
THERE RECEIVED A FAVORABLE JURY VERDICT.  (FN4)  THE COURT OF APPEALS
FOR THE SIXTH CIRCUIT AFFIRMED, HOLDING THAT THE COMMISSIONER'S SLEEP
OR REST RULE IS NOT "A VALID REGULATION UNDER THE PRESENT STATUTE." 
369 F.2D 87, 90.  IN ORDER TO RESOLVE A CONFLICT AMONG THE CIRCUITS ON
THIS RECURRING QUESTION OF FEDERAL INCOME TAX ADMINISTRATION,  (FN5)
WE GRANTED CERTIORARI.  388 U.S. 905. 

UNDER SEC 162(A)(2), TAXPAYERS "TRAVELING  ...  AWAY FROM HOME IN THE
PURSUIT OF A TRADE OR BUSINESS" MAY DEDUCT THE TOTAL AMOUNT "EXPENDED
FOR MEALS AND LODGING."  (FN6)  AS A RESULT, EVEN THE TAXPAYER WHO
INCURS SUBSTANTIAL HOTEL AND RESTAURANT EXPENSES BECAUSE OF THE SPECIAL
DEMANDS OF BUSINESS TRAVEL RECEIVES SOMETHING OF A WINDFALL, FOR AT
LEAST PART OF WHAT HE SPENDS ON MEALS REPRESENTS A PERSONAL LIVING
EXPENSE THAT OTHER TAXPAYERS MUST BEAR WITHOUT RECEIVING ANY DEDUCTION
AT ALL.  (FN7)  NOT SURPRISINGLY, THEREFORE, CONGRESS DID NOT EXTEND
THE SPECIAL BENEFITS OF SEC 162(A)(2) TO EVERY CONCEIVABLE SITUATION
INVOLVING BUSINESS TRAVEL.  IT MADE THE TOTAL COST OF MEALS AND LODGING
DEDUCTIBLE ONLY IF INCURRED IN THE COURSE OF TRAVEL THAT TAKES THE
TAXPAYER "AWAY FROM HOME."  THE PROBLEM BEFORE US INVOLVES THE MEANING
OF THAT LIMITING PHRASE. 

IN RESOLVING THAT PROBLEM, THE COMMISSIONER HAS AVOIDED THE WASTEFUL
LITIGATION AND CONTINUING UNCERTAINTY THAT WOULD INEVITABLY ACCOMPANY
ANY PURELY CASE-BY-CASE APPROACH TO THE QUESTION OF WHETHER A
PARTICULAR TAXPAYER WAS "AWAY FROM HOME" ON A PARTICULAR DAY.  (FN8)
RATHER THAN REQUIRING "EVERY MEAL-PURCHASING TAXPAYER TO TAKE POT LUCK
IN THE COURTS,"  (FN9)  THE COMMISSIONER HAS CONSISTENTLY CONSTRUED
TRAVEL "AWAY FROM HOME" TO EXCLUDE ALL TRIPS REQUIRING NEITHER SLEEP
NOR REST, (FN10) REGARDLESS OF HOW MANY CITIES A GIVEN TRIP MAY HAVE
TOUCHED, (FN11) HOW MANY MILES IT MAY HAVE COVERED, (FN12) OR HOW MANY
HOURS IT MAY HAVE CONSUMED.  (FN13)  BY SO INTERPRETING THE STATUTORY
PHRASE, THE COMMISSIONER HAS ACHIEVED NOT ONLY EASE AND CERTAINTY OF
APPLICATION BUT ALSO SUBSTANTIAL FAIRNESS, FOR THE SLEEP OR REST RULE
PLACES ALL ONE-DAY TRAVELERS ON A SIMILAR TAX FOOTING, RATHER THAN
DISCRIMINATING AGAINST INTRACITY TRAVELERS AND COMMUTERS, WHO OF COURSE
CANNOT DEDUCT THE COST OF THE MEALS THEY EAT ON THE ROAD.  SEE
COMMISSIONER V. FLOWERS, 326 U.S. 465. 

ANY RULE IN THIS AREA MUST MAKE SOME RATHER ARBITRARY DISTINCTIONS,
(FN14)  BUT AT LEAST THE SLEEP OR REST RULE AVOIDS THE OBVIOUS INEQUITY
OF PERMITTING THE NEW YORKER WHO MAKES A QUICK TRIP TO WASHINGTON AND
BACK, MISSING NEITHER HIS BREAKFAST NOR HIS DINNER AT HOME, TO DEDUCT
THE COST OF HIS LUNCH MERELY BECAUSE HE COVERS MORE MILES THAN THE
SALESMAN WHO TRAVELS LOCALLY AND MUST FINANCE ALL HIS MEALS WITHOUT THE
HELP OF THE FEDERAL TREASURY.  (FN15)  AND THE COMMISSIONER'S RULE
SURELY MAKES MORE SENSE THAN ONE WHICH WOULD ALLOW THE RESPONDENT IN
THIS CASE TO DEDUCT THE COST OF HIS BREAKFAST AND LUNCH SIMPLY BECAUSE
HE SPENDS A GREATER PERCENTAGE OF HIS TIME AT THE WHEEL THAN THE
COMMUTER WHO EATS BREAKFAST ON HIS WAY TO WORK AND LUNCH A BLOCK FROM
HIS OFFICE. 

THE COURT OF APPEALS NONETHELESS FOUND IN THE "PLAIN LANGUAGE OF THE
STATUTE" AN INSUPERABLE OBSTACLE TO THE COMMISSIONER'S CONSTRUCTION. 
369 F.2D 87, 89.  WE DISAGREE.  THE LANGUAGE OF THE STATUTE - "MEALS
AND LODGING  ...  AWAY FROM HOME" - IS OBVIOUSLY NOT SELF-DEFINING. 
(FN16)  AND TO THE EXTENT THAT THE WORDS CHOSEN BY CONGRESS CUT IN
EITHER DIRECTION, THEY TEND TO SUPPORT RATHER THAN DEFEAT THE
COMMISSIONER'S POSITION, FOR THE STATUTE SPEAKS OF "MEALS AND LODGING"
AS A UNIT, SUGGESTING - AT LEAST ARGUABLY - THAT CONGRESS CONTEMPLATED
A DEDUCTION FOR THE COST OF MEALS ONLY WHERE THE TRAVEL IN QUESTION
INVOLVES LODGING AS WELL.  (FN17)  ORDINARILY, AT LEAST, ONLY THE
TAXPAYER WHO FINDS IT NECESSARY TO STOP FOR SLEEP OR REST INCURS
SIGNIFICANTLY HIGHER LIVING EXPENSES AS A DIRECT RESULT OF HIS BUSINESS
TRAVEL,  (FN18)  AND CONGRESS MIGHT WELL HAVE THOUGHT THAT ONLY
TAXPAYERS IN THAT CATEGORY SHOULD BE PERMITTED TO DEDUCT THEIR LIVING
EXPENSES WHILE ON THE ROAD.  (FN19)  IN ANY EVENT, CONGRESS CERTAINLY
RECOGNIZED, WHEN IT PROMULGATED SEC 162(A)(2), THAT THE COMMISSIONER
HAD SO UNDERSTOOD ITS STATUTORY PREDECESSOR.  (FN20)  THIS CASE THUS
COMES WITHIN THE SETTLED PRINCIPLE THAT "TREASURY REGULATIONS AND
INTERPRETATIONS LONG CONTINUED WITHOUT SUBSTANTIAL CHANGE, APPLYING TO
UNAMENDED OR SUBSTANTIALLY REENACTED STATUTES, ARE DEEMED TO HAVE
RECEIVED CONGRESSIONAL APPROVAL AND HAVE THE EFFECT OF LAW."  HELVERING
V. WINMILL, 305 U.S. 79, 83; FRIBOURG NAV. CO. V. COMMISSIONER, 383
U.S. 272, 283. 

ALTERNATIVES TO THE COMMISSIONER'S SLEEP OR REST RULE ARE OF COURSE
AVAILABLE.  (FN21) IMPROVEMENTS MIGHT BE IMAGINED.  (FN22)  BUT WE DO
NOT SIT AS A COMMITTEE OF REVISION TO PERFECT THE ADMINISTRATION OF THE
TAX LAWS.  CONGRESS HAS DELEGATED TO THE COMMISSIONER, NOT TO THE
COURTS, THE TASK OF PRESCRIBING "ALL NEEDFUL RULES AND REGULATIONS FOR
THE ENFORCEMENT" OF THE INTERNAL REVENUE CODE.  26 U.S.C. SEC.
7805(A).  IN THIS AREA OF LIMITLESS FACTUAL VARIATIONS, "IT IS THE
PROVINCE OF CONGRESS AND THE COMMISSIONER, NOT THE COURTS, TO MAKE THE
APPROPRIATE ADJUSTMENTS."  COMMISSIONER V. STIDGER, 386 U.S. 287, 296. 
THE ROLE OF THE JUDICIARY IN CASES OF THIS SORT BEGINS AND ENDS WITH
ASSURING THAT THE COMMISSIONER'S REGULATIONS FALL WITHIN HIS AUTHORITY
TO IMPLEMENT THE CONGRESSIONAL MANDATE IN SOME REASONABLE MANNER. 
BECAUSE THE RULE CHALLENGED HERE HAS NOT BEEN SHOWN DEFICIENT ON THAT
SCORE, THE COURT OF APPEALS SHOULD HAVE SUSTAINED ITS VALIDITY.  THE
JUDGMENT IS THEREFORE REVERSED. 

FN1  SINCE MR. AND MRS. CORRELL FILED A JOINT INCOME TAX RETURN, BOTH
ARE RESPONDENTS HERE.  THROUGHOUT THIS OPINION, HOWEVER, THE TERM
"RESPONDENT" REFERS ONLY TO MR. CORRELL. 

FN2  "(A) IN GENERAL.  - THERE SHALL BE ALLOWED AS A DEDUCTION ALL
THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE
YEAR IN CARRYING ON ANY TRADE OR BUSINESS, INCLUDING: 

     *         *         *         *         * 

"(2) TRAVELING EXPENSES (INCLUDING THE ENTIRE AMOUNT EXPENDED FOR
MEALS AND LODGING) WHILE AWAY FROM HOME IN THE PURSUIT OF A TRADE OR
BUSINESS  ...  ."  SEC 162(A)(2) OF THE INTERNAL REVENUE CODE OF 1954,
26 U.S.C. SEC. 162(A)(2)(1958 ED.). 

FN3  "EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS CHAPTER, NO
DEDUCTION SHALL BE ALLOWED FOR PERSONAL, LIVING, OR FAMILY EXPENSES." 
SEC 262 OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. SEC 262. 

FN4  AFTER DENYING THE GOVERNMENT'S MOTION FOR A DIRECTED VERDICT,
THE DISTRICT JUDGE CHARGED THE JURY THAT IT WOULD HAVE TO "DETERMINE
UNDER ALL THE FACTS OF THIS CASE WHETHER OR NOT" THE COMMISSIONER'S
RULE WAS "AN ARBITRARY REGULATION AS APPLIED TO THESE PLAINTIFFS UNDER
THE FACTS IN THIS CASE."  HE TOLD THE JURY TO CONSIDER WHETHER THE MEAL
EXPENSES WERE "NECESSARY FOR THE EMPLOYEE TO PROPERLY PERFORM THE
DUTIES OF HIS WORK."  "SHOULD HE HAVE EATEN THEM AT HIS HOME RATHER
THAN ...  AWAY FROM HOME IN ORDER TO PROPERLY CARRY ON HIS BUSINESS OR
TO PERFORM ADEQUATELY HIS DUTIES AS AN EMPLOYEE OF THIS PRODUCE
COMPANY?"  "YOU ARE INSTRUCTED THAT THE COST OF MEALS WHILE ON ONE-DAY
BUSINESS TRIPS AWAY FROM HOME NEED NOT BE INCURRED WHILE ON AN
OVERNIGHT TRIP TO BE DEDUCTIBLE, SO LONG AS THE EXPENSE OF SUCH MEALS
...  PROXIMATELY RESULTS FROM THE CARRYING ON THE PARTICULAR BUSINESS
INVOLVED AND HAS SOME REASONABLE RELATION TO THAT BUSINESS."  UNDER
THESE INSTRUCTIONS, THE JURY FOUND FOR THE RESPONDENT.  THE DISTRICT
COURT DENIED THE GOVERNMENT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT. 

FN5  THE DECISION BELOW CONFLICTS WITH THAT OF THE FIRST CIRCUIT IN
COMMISSIONER V. BAGLEY, 374 F.2D 204, BUT IS IN ACCORD WITH THAT OF THE
EIGHTH CIRCUIT IN HANSON V. COMMISSIONER, 298 F.2D 391, REAFFIRMED IN
UNITED STATES V. MORELAN, 356 F.2D 199, 208-210. 

FN6  PRIOR TO THE ENACTMENT IN 1921 OF WHAT IS NOW SEC 162(A)(2), THE
COMMISSIONER HAD PROMULGATED A REGULATION ALLOWING A DEDUCTION FOR THE
COST OF MEALS AND LODGING AWAY FROM HOME, BUT ONLY TO THE EXTENT THAT
THIS COST EXCEEDED "ANY EXPENDITURES ORDINARILY REQUIRED FOR SUCH
PURPOSES WHEN AT HOME."  TREAS. REG. 45 (1920 ED.), ART. 292, 4 CUM.
BULL, 209 (1921).  DESPITE ITS LOGICAL APPEAL, THE REGULATION PROVED SO
DIFFICULT TO ADMINISTER THAT THE TREASURY DEPARTMENT ASKED CONGRESS TO
GRANT A DEDUCTION FOR THE "ENTIRE AMOUNT" OF SUCH MEAL AND LODGING
EXPENDITURES.  SEE STATEMENT OF DR. T.S. ADAMS, TAX ADVISER, TREASURY
DEPARTMENT, IN HEARINGS ON H.R. 8245 BEFORE THE SENATE COMMITTEE ON
FINANCE, 67TH CONG., 1ST SESS., AT 50, 234-235 (1921).  ACCORDINGLY,
SEC. 214(A)(1) OF THE REVENUE ACT OF 1921, C. 136, 42 STAT. 239, FOR
THE FIRST TIME INCLUDED THE LANGUAGE THAT LATER BECAME SEC 162(A)(2). 
SEE N. 2, SUPRA.  THE SECTION WAS AMENDED IN A RESPECT NOT HERE
RELEVANT BY THE REVENUE ACT OF 1962, SEC 4 (B), 76 STAT. 976. 

FN7  BECAUSE SEC 262 MAKES "PERSONAL, LIVING, OR FAMILY EXPENSES"
NONDEDUCTIBLE, SEE N. 3, SUPRA, THE TAXPAYER WHOSE BUSINESS REQUIRES NO
TRAVEL CANNOT ORDINARILY DEDUCT THE COST OF THE LUNCH HE EATS AWAY FROM
HOME.  BUT THE TAXPAYER WHO CAN BRING HIMSELF WITHIN THE REACH OF SEC
162(A)(2) MAY DEDUCT WHAT HE SPENDS ON HIS NOON-TIME MEAL ALTHOUGH IT
COSTS HIM NO MORE, AND RELATES NO MORE CLOSELY TO HIS BUSINESS, THAN
DOES THE LUNCH CONSUMED BY HIS LESS MOBILE COUNTERPART. 

FN8  SUCH WAS THE APPROACH OF THE TAX COURT IN BAGLEY V.
COMMISSIONER, 46 T.C. 176, 183, VACATED, 374 F.2D 204; OF THE EIGHTH
CIRCUIT IN HANSON V. COMMISSIONER, 298 F.2D 391, 397; AND EVIDENTLY OF
THE SIXTH CIRCUIT IN THIS CASE, SEE 369 F.2D 87, 90. 

FN9  COMMISSIONER V. BAGLEY, 374 F.2D 264, 207. 

FN10  THE COMMISSIONER'S INTERPRETATION, FIRST EXPRESSED IN A 1940
RULING, I.T. 3395, 1940-2 CUM. BULL.  64, WAS ORIGINALLY KNOWN AS THE
OVERNIGHT RULE.  SEE COMMISSIONER V. BAGLEY, SUPRA, AT 205. 

FN11  THE RESPONDENT LIVED IN FOUNTAIN CITY, TENNESSEE, SOME 45 MILES
FROM HIS EMPLOYER'S PLACE OF BUSINESS IN MORRISTOWN.  HIS TERRITORY
INCLUDED RESTAURANTS IN THE CITIES OF MADISONVILLE, ENGELWOOD, ETOWAH,
ATHENS, SWEETWATER, LAKE CITY, CARYVILLE, JACKSBORO, LA FOLLETTE, AND
JELLICO, ALL IN EASTERN TENNESSEE. 

FN12  THE RESPONDENT SELDOM TRAVELED FARTHER THAN 55 MILES FROM HIS
HOME, BUT HE ORDINARILY DROVE A TOTAL OF 150 TO 175 MILES DAILY. 

FN13  THE RESPONDENT'S EMPLOYER REQUIRED HIM TO BE IN HIS SALES
TERRITORY AT THE START OF THE BUSINESS DAY.  TO DO SO, HE HAD TO LEAVE
FOUNTAIN CITY AT ABOUT 5 A.M.  HE USUALLY FINISHED HIS DAILY SCHEDULE
BY 4 P.M., TRANSMITTED HIS ORDERS TO MORRISTOWN, AND RETURNED HOME BY
5:30 P.M. 

FN14  THE RULES PROPOSED BY THE RESPONDENT AND BY THE TWO AMICI
CURIAE FILING BRIEFS ON HIS BEHALF ARE NOT EXCEPTIONAL IN THIS REGARD. 
THUS, FOR EXAMPLE, THE RESPONDENT SUGGESTS THAT SEC. 161(A)(2) BE
CONSTRUED TO COVER THOSE TAXPAYERS WHO TRAVEL OUTSIDE THEIR "OWN HOME
TOWN," OR OUTSIDE "THE GREATER  ...  METROPOLITAN AREA" WHERE THEY
RESIDE.  ONE AMICUS STRESSES THE NUMBER OF "HOURS SPENT AND MILES
TRAVELED AWAY FROM THE TAXPAYER'S PRINCIPAL POST OF DUTY," SUGGESTING
THAT SOME EMPHASIS SHOULD ALSO BE PLACED UPON THE NUMBER OF MEALS
CONSUMED BY THE TAXPAYER "OUTSIDE THE GENERAL AREA OF HIS HOME." 

FN15  SEE AMOROSO V. COMMISSIONER, 193 F.2D 583. 

FN16  THE STATUTE APPLIES TO THE MEAL AND LODGING EXPENSES OF
TAXPAYERS "TRAVELING  ...  AWAY FROM HOME."  THE VERY CONCEPT OF
"TRAVELING" OBVIOUSLY REQUIRES A PHYSICAL SEPARATION FROM ONE'S HOUSE. 
TO READ THE PHRASE "AWAY FROM HOME" AS BROADLY AS A COMPLETELY LITERAL
APPROACH MIGHT PERMIT WOULD THUS RENDER THE PHRASE COMPLETELY
REDUNDANT.  BUT OF COURSE THE WORDS OF THE STATUTE HAVE NEVER BEEN SO
WOODENLY CONSTRUED.  THE COMMUTER, FOR EXAMPLE, HAS NEVER BEEN REGARDED
AS "AWAY FROM HOME" WITHIN THE MEANING OF SEC. 162(A)(2) SIMPLY BECAUSE
HE HAS TRAVELED FROM HIS RESIDENCE TO HIS PLACE OF BUSINESS.  SEE
COMMISSIONER V. FLOWERS, 326 U.S. 465, 473.  MORE THAN A DICTIONARY IS
THUS REQUIRED TO UNDERSTAND THE PROVISION HERE INVOLVED, AND NO APPEAL
TO THE "PLAIN LANGUAGE" OF THE SECTION CAN OBVIATE THE NEED FOR FURTHER
STATUTORY CONSTRUCTION.    FN17  SEE COMMISSIONER V. BAGLEY, 374 F.2D
204, 207, N. 10. 

FN18  THE TAXPAYER MUST ORDINARILY "MAINTAIN A HOME FOR HIS FAMILY AT
HIS OWN EXPENSE EVEN WHEN HE IS ABSENT ON BUSINESS," BARNHILL V.
COMMISSIONER, 148 F.2D 913, 917, AND IF HE IS REQUIRED TO STOP FOR
SLEEP OR REST, "CONTINUING COSTS INCURRED AT A PERMANENT PLACE OF ABODE
ARE DUPLICATED."  JAMES V. UNTIED STATES, 308 F.2D 204, 206.  THE SAME
TAXPAYER, HOWEVER, IS UNLIKELY TO INCUR SUBSTANTIALLY INCREASED LIVING
EXPENSES AS A RESULT OF BUSINESS TRAVEL, HOWEVER FAR HE MAY GO, SO LONG
AS HE DOES NOT FIND IT NECESSARY TO STOP FOR LODGING.  ONE AMICUS
CURIAE BRIEF FILED IN THIS CASE ASSERTS THAT "THOSE WHO TRAVEL
CONSIDERABLE DISTANCES SUCH AS ON A ONE-DAY JET TRIP BETWEEN NEW YORK
AND CHICAGO" SPEND MORE FOR "COMPARABLE MEALS THAN THOSE WHO REMAIN AT
THEIR HOME BASE" AND URGES THAT ALL WHO TRAVEL "SUBSTANTIAL DISTANCES"
SHOULD THEREFORE BE PERMITTED TO DEDUCT THE ENTIRE COST OF THEIR
MEALS.  IT MAY BE THAT EATING AT A RESTAURANT COSTS MORE THAN EATING AT
HOME, BUT IT CANNOT SERIOUSLY BE SUGGESTED THAT A TAXPAYER'S BILL AT A
RESTAURANT MYSTERIOUSLY REFLECTS THE DISTANCE HE HAS TRAVELED TO GET
THERE. 

FN19  THE COURT BELOW THOUGHT THAT "IN AN ERA OF SUPERSONIC TRAVEL,
THE TIME FACTOR IS HARDLY RELEVANT TO THE QUESTION OF WHETHER OR NOT
...  MEAL EXPENSES ARE RELATED TO THE TAXPAYER'S BUSINESS  ...  ."  369
F.2D 87, 89-90.  BUT THAT COMPLETELY MISSES THE POINT.  THE BENEFITS OF
SEC. 162(A)(2) ARE LIMITED TO BUSINESS TRAVEL "AWAY FROM HOME," AND ALL
MEAL EXPENSES INCURRED IN THE COURSE OF SUCH TRAVEL ARE DEDUCTIBLE,
HOWEVER UNRELATED THEY MAY BE TO THE TAXPAYER'S INCOME-PRODUCING
ACTIVITY.  TO ASK THAT THE DEFINITION OF "AWAY FROM HOME" BE RESPONSIVE
TO THE BUSINESS NECESSITY OF THE TAXPAYER'S MEALS IS TO DEMAND THE
IMPOSSIBLE. 

FN20  IN CONSIDERING THE PROPOSED 1954 CODE, CONGRESS HEARD A
TAXPAYER PLEA FOR A CHANGE IN THE RULE DISALLOWING DEDUCTIONS FOR MEAL
EXPENSES ON ONE-DAY TRIPS.  HEARINGS ON GENERAL REVISION OF THE
INTERNAL REVENUE CODE BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 83D
CONG., 1ST SESS., PT. 1, AT 216-219 (1953); HEARINGS ON H.R. 8300
BEFORE THE SENATE COMMITTEE ON FINANCE, 83D CONG., 2D SESS., PT. 4, AT
2396 (1954).  NO SUCH CHANGE RESULTED. 

IN RECOMMENDING SEC. 62(2)(C) OF THE 1954 CODE, PERMITTING EMPLOYEES
TO DEDUCT CERTAIN TRANSPORTATION EXPENSES IN COMPUTING ADJUSTED GROSS
INCOME, THE SENATE FINANCE COMMITTEE STATED: 

"AT PRESENT, BUSINESS TRANSPORTATION EXPENSES CAN BE DEDUCTED BY AN
EMPLOYEE IN ARRIVING AT ADJUSTED GROSS INCOME ONLY IF THEY ARE
REIMBURSED BY THE EMPLOYER OR IF THEY ARE INCURRED WHILE HE WAS AWAY
FROM HOME OVERNIGHT  ...  . 

"BECAUSE THESE EXPENSES, WHEN INCURRED, USUALLY ARE SUBSTANTIAL, IT
APPEARS DESIRABLE TO TREAT EMPLOYEES IN THIS RESPECT LIKE SELF-EMPLOYED
PERSONS.  FOR THIS REASON BOTH THE HOUSE AND YOUR COMMITTEE'S BILL
PERMIT EMPLOYEES TO DEDUCT BUSINESS TRANSPORTATION EXPENSES IN ARRIVING
AT ADJUSTED GROSS INCOME EVEN THOUGH THE EXPENSES ARE NOT INCURRED IN
TRAVEL AWAY FROM HOME OR NOT REIMBURSED BY THE EMPLOYER  ...  ."  S.
REP. NO. 1622, 83D CONG., 2D SESS., 9 (1954).  SEE ALSO H.R. REP. NO.
1337, 83D CONG., 2D SESS., 9 (1954). 

AND IN DISCUSSING SEC 120 OF THE 1954 CODE (REPEALED BY 72 STAT. 1607
(1958)), WHICH ALLOWED POLICEMEN TO EXCLUDE FROM TAXABLE INCOME UP TO
$5 PER DAY IN MEAL ALLOWANCES, BOTH THE HOUSE AND SENATE REPORTS NOTED
THAT, UNDER THE PREVAILING RULE, POLICE OFFICERS COULD DEDUCT EXPENSES
OVER THE $5 LIMIT OF SEC 120 "FOR MEALS WHILE AWAY FROM HOME
OVERNIGHT."  H.R. REP. NO. 1337, 83D CONG., 2D SESS., A40 (1954); S.
REP. NO. 1622, 83D CONG., 2D SESS., 191 (1954).  THUS CONGRESS WAS WELL
AWARE OF THE COMMISSIONER'S RULE WHEN IT RETAINED IN SEC. 162(A)(2) THE
PRECISE TERMINOLOGY IT HAD USED IN 1921. 

FN21  SEE N. 14, SUPRA. 

FN22  SEE, E.G., THE 1963 PROPOSAL OF THE TREASURY DEPARTMENT, IN
HEARINGS ON THE PRESIDENT'S 1963 TAX MESSAGE BEFORE THE HOUSE COMMITTEE
ON WAYS AND MEANS, 88TH CONG., 1ST SESS., PT. 1, AT 98 (1963). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
FORTAS CONCUR, DISSENTING. 

THE STATUTORY WORDS "WHILE AWAY FROM HOME," 26 U.S.C. SEC. 162(A)(2),
MAY NOT IN MY VIEW BE SHRUNKEN TO "OVERNIGHT" BY ADMINISTRATIVE
CONSTRUCTION OR REGULATIONS.  "OVERNIGHT" INJECTS A TIME ELEMENT IN
TESTING DEDUCTIBILITY, WHILE THE STATUTE SPEAKS ONLY IN TERMS OF
GEOGRAPHY.  AS STATED BY THE COURT OF APPEALS: 

"IN AN ERA OF SUPERSONIC TRAVEL, THE TIME FACTOR IS HARDLY RELEVANT
TO THE QUESTION OF WHETHER OR NOT TRAVEL AND MEAL EXPENSES ARE RELATED
TO THE TAXPAYER'S BUSINESS AND CANNOT BE THE BASIS OF A VALID
REGULATION UNDER THE PRESENT STATUTE."  CORRELL V. UNITED STATES, 369
F.2D 87, 89-90. 

I WOULD AFFIRM THE JUDGMENT BELOW. 
..END :





















UNITED STATES V. PENN-OLIN CHEMICAL CO. 389 U.S. 308 


NO. 26.  ARGUED DECEMBER 7, 1967.  - DECIDED DECEMBER 11, 1967.  - 246
F. SUPP. 917, AFFIRMED BY AN EQUALLY DIVIDED COURT. 


UNITED STATES V. PENN-OLIN CHEMICAL CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

PER CURIAM. 

THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













DUBOIS CLUBS V. CLARK 389 U.S. 309 


NO. 515.  DECIDED DECEMBER 11, 1967.  - 277 F. SUPP. 971, AFFIRMED. 


THE ATTORNEY GENERAL FILED A PETITION WITH THE SUBVERSIVE ACTIVITIES
CONTROL BOARD FOR AN ORDER REQUIRING THE W.E.B. DUBOIS CLUBS OF AMERICA
TO REGISTER AS A COMMUNIST-FRONT ORGANIZATION PURSUANT TO 50 U.S.C. SEC
786.  PRIOR TO HEARING THEREON APPELLANTS SUED IN THE DISTRICT COURT TO
HAVE THE REGISTRATION PROVISIONS DECLARED UNCONSTITUTIONAL.  A THREE
JUDGE DISTRICT COURT DISMISSED THE COMPLAINT FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES.  HELD:  ORDINARILY WHERE CONGRESS HAS PROVIDED
A CIVIL PROCEEDING IN WHICH APPELLANTS CAN RAISE THEIR CONSTITUTIONAL
CLAIMS, THIS ADMINISTRATIVE PROCEDURE SHOULD BE FOLLOWED SO THAT THE
DISTRICT COURT WILL NOT HAVE TO DECIDE THE CONSTITUTIONAL ISSUES DEVOID
OF FACTUAL CONTEXT AND BEFORE IT IS CLEAR THAT APPELLANTS ARE COVERED
BY THE ACT.  DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965),
DISTINGUISHED. 

W.E.B. DUBOIS CLUBS OF AMERICA ET AL. V. CLARK, ATTORNEY GENERAL, ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

ON MARCH 4, 1966, THE ATTORNEY GENERAL PETITIONED THE SUBVERSIVE
ACTIVITIES CONTROL BOARD FOR AN ORDER, AFTER APPROPRIATE HEARINGS,
REQUIRING THE W.E.B. DUBOIS CLUBS OF AMERICA TO REGISTER WITH THE
ATTORNEY GENERAL AS A COMMUNIST-FRONT ORGANIZATION.  (FN1)  ON APRIL
26, 1966, BEFORE HEARINGS WERE HELD, APPELLANTS ATTEMPTED TO BYPASS THE
BOARD BY SUING IN THE DISTRICT COURT.  (FN2)  APPELLANTS' COMPLAINT IN
THE DISTRICT COURT ALLEGED THAT THE COMMUNIST-FRONT REGISTRATION
PROVISIONS OF THE ACT WERE UNCONSTITUTIONAL.  (FN3)  THE COMPLAINT ALSO
ALLEGED THAT THE "VERY PENDENCY OF THESE ADMINISTRATIVE PROCEEDINGS
...  HAS RESULTED AND WILL CONTINUE TO RESULT  ...  IN IMMEDIATE AND
IRREPARABLE INJURY TO FUNDAMENTAL CONSTITUTIONAL RIGHTS  ...  ." 
APPELLANTS ASKED THE DISTRICT COURT FOR AN ORDER DECLARING THE
COMMUNIST-FRONT REGISTRATION PROVISIONS UNCONSTITUTIONAL AND ALSO FOR
AN ORDER ENJOINING THE ATTORNEY GENERAL AND THE SACB FROM ENFORCING
THEM.  A THREE-JUDGE DISTRICT COURT, CONVENED ON APPELLANTS' MOTION,
DISMISSED THE COMPLAINT BECAUSE APPELLANTS HAD FAILED TO EXHAUST THEIR
ADMINISTRATIVE REMEDIES.  (FN4)  THIS APPEAL FOLLOWED. 

BEFORE THERE MAY BE PROCEEDINGS TO PUNISH APPELLANTS FOR FAILURE TO
REGISTER WITH THE ATTORNEY GENERAL, THE SACB MUST FIRST FIND THAT THE
DUBOIS CLUBS IS A COMMUNIST-FRONT ORGANIZATION AND ISSUE AN ORDER TO
THAT EFFECT.  (FN5)  THE ACT PROVIDES FOR A FULL EVIDENTIARY HEARING
WHICH IS TO BE HELD IN PUBLIC.  APPELLANTS MAY BE REPRESENTED BY
COUNSEL, OFFER ORAL OR DOCUMENTARY EVIDENCE, SUBMIT REBUTTAL EVIDENCE,
AND CONDUCT CROSS-EXAMINATION.  THE SACB MUST MAKE A WRITTEN REPORT AND
STATE ITS FINDING OF FACT.  IF APPELLANTS ARE AGGRIEVED BY THE BOARD'S
ORDER, THEY MAY OBTAIN REVIEW IN THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT WHICH MAY SET ASIDE THE ORDER IF IT IS
NOT "SUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE."  (FN6)  UPON
MOTION OF A PARTY, THE COURT OF APPEALS MAY ORDER THE BOARD TO TAKE
ADDITIONAL EVIDENCE.  OF COURSE, IF THE BOARD AND THE COURT OF APPEALS
FIND THAT THE ACT DOES COVER APPELLANTS, THEY MAY CHALLENGE ITS
CONSTITUTIONALITY EITHER AS APPLIED OR ON ITS FACE.  JUDGMENTS OF THE
COURT OF APPEALS ARE REVIEWABLE BY THIS COURT ON CERTIORARI.  (FN7) 

IT IS EVIDENT THAT CONGRESS HAS PROVIDED A WAY FOR APPELLANTS TO
RAISE THEIR CONSTITUTIONAL CLAIMS.  BUT APPELLANTS, DENYING THAT THEY
ARE WITHIN THE COVERAGE OF THE ACT, WISH TO LITIGATE THESE CLAIMS IN AN
INJUNCTIVE PROCEEDING IN THE DISTRICT COURT.  THE EFFECT WOULD BE THAT
IMPORTANT AND DIFFICULT CONSTITUTIONAL ISSUES WOULD BE DECIDED DEVOID
OF FACTUAL CONTEXT AND BEFORE IT WAS CLEAR THAT APPELLANTS WERE COVERED
BY THE ACT.  (FN8)  WE HAVE PREVIOUSLY REFUSED TO DECIDE THE
CONSTITUTIONALITY OF THE VERY PROVISIONS INVOLVED HERE BECAUSE IT WAS
NOT CLEAR THAT THE ACT WOULD BE APPLIED TO THE OBJECTING PARTIES. 
AMERICAN COMMITTEE FOR PROTECTION OF FOREIGN BORN V. SACB, 380 U.S.
503, VETERANS OF THE ABRAHAM LINCOLN BRIGADE V. SACB, 380 U.S. 513. 
SIMILARLY, THE DISTRICT COURT SHOULD NOT BE FORCED TO DECIDE THESE
CONSTITUTIONAL QUESTIONS IN A VACUUM. 

APPELLANTS RELY ON DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965), TO
SUPPORT THEIR CONTENTION THAT THE USUAL RULE REQUIRING EXHAUSTION OF
ADMINISTRATIVE REMEDIES  (FN9) SHOULD NOT APPLY IN THIS CASE.  IN
DOMBROWSKI, HOWEVER, THE CONSTITUTIONAL ISSUES WERE PRESENTED IN A
FACTUAL CONTEXT.  UPON A RECORD DEMONSTRATING A HISTORY OF HARASSMENT
OF APPELLANTS IN CONNECTION WITH THEIR EXERCISE OF FIRST AMENDMENT
RIGHTS, THE COURT ORDERED A FEDERAL DISTRICT COURT TO ISSUE AN
INJUNCTION AGAINST PENDING CRIMINAL PROSECUTIONS UNDER STATE STATUTES. 
THIS COURT HELD THE STATUTES "VOID ON THEIR FACE," AND IT CONCLUDED
THAT, IN THE CIRCUMSTANCES OF THAT CASE, IF APPELLANTS WERE REQUIRED TO
SUBMIT TO A CRIMINAL PROSECUTION, THE INJURY TO FIRST AMENDMENT
FREEDOMS WHICH HAD ALREADY TAKEN PLACE WOULD BE COMPOUNDED. 
ACCORDINGLY, THE COURT ALLOWED APPELLANTS TO ASSERT THEIR CLAIMS IN AN
EQUITABLE PROCEEDING. 

IN THIS CASE, THE COMPLAINT AND THE AFFIDAVITS CONSTITUTE NO MORE
THAN CONCLUSORY ALLEGATIONS THAT THE PURPOSE OF THE THREATENED
ENFORCEMENT OF THE ACT WAS TO "HARASS" APPELLANTS AND THAT HARASSMENT
WAS THE INTENDED RESULT OF THE ATTORNEY GENERAL'S ANNOUNCEMENT THAT HE
HAD FILED A PETITION WITH THE SACB.  FURTHER, APPELLANTS ARE NOT BEING
FORCED TO ASSERT THEIR CLAIMS IN A CRIMINAL PROSECUTION.  AS THE COURT
BELOW MADE CLEAR, "CONGRESS HAS MADE CAREFUL PROVISION THAT NO TANGIBLE
SANCTIONS CAN COME INTO PLAY UNTIL THE FACTS HAVE BEEN EXPLORED IN OPEN
HEARING BEFORE THE BOARD AND THE COURTS HAVE SCRUTINIZED WHAT THEY
SHOW, BOTH IN THEIR ADEQUACY TO SUPPORT A REGISTRATION ORDER AND IN
THEIR CONSTITUTIONAL IMPACT UPON THE STATUTE ITSELF."  (FN10)  IN THE
CONTEXT OF THIS CASE, WE DECLINE TO REQUIRE THE COURT BELOW TO PERMIT
SUBSTITUTION OF AN INJUNCTIVE PROCEEDING FOR THE CIVIL PROCEEDING WHICH
CONGRESS HAS SPECIFICALLY PROVIDED. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
AFFIRMED. 

FN1  THE TERM "COMMUNIST-FRONT ORGANIZATION" IS DEFINED IN SEC. 3(4)
OF THE INTERNAL SECURITY ACT OF 1950, 64 STAT. 989, 50 U.S.C. SEC.
782(4).  COMMUNIST-FRONT ORGANIZATIONS ARE REQUIRED TO REGISTER WITH
THE ATTORNEY GENERAL.  50 U.S.C. SEC 786.  WHEN A COMMUNIST-FRONT
ORGANIZATION DOES NOT REGISTER, THE ATTORNEY GENERAL MAY PETITION THE
SACB FOR AN ORDER REQUIRING REGISTRATION.  50 U.S.C. SEC 792. 

FN2  ON APRIL 27, 1966, APPELLANTS ALSO FILED WITH THE BOARD A MOTION
TO DISMISS THE ATTORNEY GENERAL'S PETITION.  THE BOARD DENIED THIS
MOTION AND, SUBSEQUENTLY, ON AUGUST 18, 1966, APPELLANTS FILED AN
ANSWER TO THE ATTORNEY GENERAL'S PETITION.  ACCORDING TO THE DISTRICT
COURT, THE DUBOIS CLUBS "(1) DENIED GENERALLY THAT IT WAS A COMMUNIST
FRONT ORGANIZATION WITHIN THE MEANING OF THE ACT, AND (2) DENIED
VARIOUS ALLEGATIONS OF FACT MADE BY THE ATTORNEY GENERAL IN THE
PETITION." 

FN3  APPELLANTS ATTACKED THE PROVISIONS, 50 U.S.C. SECS. 786(B), (C),
AND (D), "ON THEIR FACE AND AS APPLIED" AS VIOLATIONS OF ART. I, SEC 9,
CL. 3, ART. III, AND THE FIRST, FIFTH, EIGHTH, NINTH, TENTH,
THIRTEENTH, FOURTEENTH, AND FIFTEENTH AMENDMENTS OF THE CONSTITUTION. 
ALTHOUGH THE COMMUNIST-FRONT PROVISIONS HAVE BEEN UPHELD BY THE
DISTRICT OF COLUMBIA CIRCUIT, AMERICAN COMMITTEE FOR PROTECTION OF
FOREIGN BORN V. SACB, 117 U.S. APP. D.C. 393, 401, 331 F.2D 53, 61
(1963), REVERSED ON OTHER GROUNDS, 380 U.S. 503 (1965); VETERANS OF THE
ABRAHAM LINCOLN BRIGADE V. SACB, 117 U.S. APP. D.C. 404, 413, 331 F.2D
64, 73 (1963), REVERSED ON OTHER GROUNDS, 380 U.S. 513 (1965);
WEINSTOCK V. SACB, 118 U.S. APP. D.C. 1, 331 F.2D 75 (1963); JEFFERSON
SCHOOL OF SOCIAL SCIENCE V. SACB, 118 U.S. APP. D.C. 2, 331 F.2D 76
(1963), THEIR CONSTITUTIONALITY HAS NOT BEEN SPECIFICALLY DETERMINED BY
THIS COURT.  AMERICAN COMMITTEE FOR PROTECTION OF FOREIGN BORN V. SACB,
380 U.S. 503 (1965); VETERANS OF THE ABRAHAM LINCOLN BRIGADE V. SACB,
380 U.S. 513 (1965).  CF. APTHEKER V. SECRETARY OF STATE, 378 U.S. 500
(1964). 

FN4  HOWEVER, THE DISTRICT COURT DID STAY FURTHER BOARD PROCEEDINGS
PENDING THIS COURT'S DISPOSITION OF THE CASE. 

FN5  50 U.S.C. SEC. 794(A). 

FN6  SEE NATIONAL COUNCIL OF AMERICAN-SOVIET FRIENDSHIP V. SACB, 116
U.S. APP. D.C. 162, 322 F.2D 375 (1963). 

FN7  SEE 50 U.S.C. SECS. 792(D), (G), 793(A). 

FN8  CF. RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 568-585
(1947). 

FN9 SEE, E.G., MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, 50
51 (1938); MACAULEY V. WATERMAN S.S. CORP., 327 U.S. 540, 543-545
(1946); AIRCRAFT & DIESEL CORP. V. HIRSCH, 331 U.S. 752, 771-774
(1947); ALLEN V. GRAND CENT. AIRCRAFT CO., 347 U.S. 535, 553 (1954);
BOIRE V. GREYHOUND CORP., 376 U.S. 473, 481-482 (1964). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I BELIEVE THAT THE PROVISIONS OF THE ACT NOW CHALLENGED ARE VOID ON
THEIR FACE, THAT THERE ARE NO FACTUAL ISSUES TO BE RESOLVED WHICH
SHOULD CONDITION THE OUTCOME OF THE LITIGATION, AND THAT THEREFORE
THERE IS NO REASON FOR THE LOWER COURT TO ABSTAIN FROM EXERCISING ITS
JURISDICTION. 

THE STATUTE DEFINES "COMMUNIST-FRONT ORGANIZATION" AS ONE WHICH IS
SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED BY A COMMUNIST-ACTION
ORGANIZATION AND WHICH IS PRIMARILY OPERATED FOR THE PURPOSE OF GIVING
AID AND SUPPORT TO A COMMUNIST-ACTION ORGANIZATION, A COMMUNIST FOREIGN
GOVERNMENT, OR THE WORLD COMMUNIST MOVEMENT.  50 U.S.C. SEC. 782(4).  A
COMMUNIST-FRONT ORGANIZATION, AS DEFINED, IS NOT A GROUP ENGAGED IN
ACTION BUT IN ADVOCACY; OR IF ACTION IS INCLUDED, SO IS ADVOCACY, FOR
SEC. 781(15) IN DESCRIBING THE GROWTH OF THE COMMUNIST MOVEMENT SPEAKS
OF THOSE WHO SEEK "CONVERTS FAR AND WIDE BY AN EXTENSIVE SYSTEM OF
SCHOOLING AND INDOCTRINATION." 

LEGISLATION CURBING OR PENALIZING ADVOCACY EVEN OF IDEAS WE DESPISE
IS, I SUBMIT, AT WAR WITH THE FIRST AMENDMENT.  UNDER OUR CONSTITUTION
ONE'S BELIEF OR IDEOLOGY IS OF NO CONCERN TO GOVERNMENT.  ONE CAN THINK
AS HE LIKES, EMBRACE ANY PHILOSOPHY HE CHOOSES, AND SELECT THE POLITICS
THAT BEST FITS HIS IDEALS OR NEEDS.  THAT IS ALL IMPLICIT IN THE FIRST
AMENDMENT RIGHTS OF ASSEMBLY, PETITION, AND EXPRESSION.  THOSE RIGHTS
MERELY ENFORCE, PROTECT, OR SANCTION THE BELIEFS OR IDEOLOGY TO WHICH
ONE IS COMMITTED.  SO DOES THE RIGHT OF ASSOCIATION WHICH WE HAVE SAID
OVER AND AGAIN TO BE PART AND PARCEL OF THOSE FIRST AMENDMENT RIGHTS. 
BASIC IN THIS SCHEME OF VALUES IS THE IMMUNITY OF BELIEFS, IDEAS, AND
IDEOLOGY FROM GOVERNMENT INQUIRY, PROBING, OR SURVEILLANCE.  (FN1) 

JEFFERSON EXPRESSED THE AMERICAN CONSTITUTIONAL THEORY: 

"THE OPINIONS OF MEN ARE NOT THE OBJECT OF CIVIL GOVERNMENT, NOR
UNDER ITS JURISDICTION  ...  . IT IS TIME ENOUGH FOR THE RIGHTFUL
PURPOSES OF CIVIL GOVERNMENT FOR ITS OFFICERS TO INTERFERE WHEN
PRINCIPLES BREAK OUT INTO OVERT ACTS AGAINST PEACE AND GOOD ORDER  ...
."  JEFFERSON, A BILL FOR ESTABLISHING RELIGIOUS FREEDOM, IN THE
JEFFERSONIAN CYCLOPEDIA 976 (1900). 

THAT IS MY READING OF THE FIRST AMENDMENT.  THOSE WHO CAN BE
OFFICIALLY PILLORIED OR PUNISHED FOR HAVING A PARTICULAR PHILOSOPHIC OR
POLITICAL CREED ARE EFFECTIVELY DETERRED FROM EXERCISING FIRST
AMENDMENT RIGHTS. 

I SEE NO CONSTITUTIONAL METHOD WHEREBY THE GOVERNMENT CAN PUNISH OR
PENALIZE ONE FOR "BEING A COMMUNIST" OR "SUPPORTING COMMUNISTS" OR
"PROMOTING COMMUNISM."  COMMUNISM, AS AN IDEOLOGY, EMBRACES A BROAD
ARRAY OF IDEAS.  TO SOME IT HAS APPEAL BECAUSE THE STATE OWNS THE MAIN
MEANS OF PRODUCTION, WITH THE RESULT THAT ALL PHASES OF NATIONAL LIFE
ARE IN THE PUBLIC SECTOR, GUARANTEEING FULL EMPLOYMENT.  TO SOME
COMMUNISM MEANS A MEDICAL CARE PROGRAM THAT REACHES TO THE LOWEST
LEVELS OF SOCIETY.  TO OTHERS THE COMMUNAL WAY OF LIFE, EVEN IN
AGRICULTURE, MEANS A FULLER LIFE FOR THE AVERAGE PERSON.  TO SOME THE
FLOWERING OF THE DANCE, MUSIC, PAINTING, SCULPTURE, AND EVEN ATHLETICS
IS POSSIBLE ONLY WHEN THOSE ARTS AND ACTIVITIES MOVE FROM THE PRIVATE
TO THE PUBLIC SECTOR.  TO SOME THERE CAN BE NO EQUIVALENT OF THE
UNEMPLOYMENT INSURANCE, OLD AGE INSURANCE, AND SOCIAL SECURITY THAT
OBTAIN IN A SOCIALIZED STATE.  TO OTHERS COMMUNISM IS A COMMITMENT TO
THE ATHEISTIC PHILOSOPHY AND WAY OF LIFE.  TO STILL OTHERS, ADHERENCE
TO COMMUNISM MEANS A COMMITMENT TO USE FORCE AND VIOLENCE, IF
NECESSARY, TO ACHIEVE THAT KIND OF SOCIALIST STATE.  AND TO SOME OF
COURSE IT MEANS ALL OF THE PROJECTS I HAVE ENUMERATED PLUS PERHAPS
OTHERS AS WELL. 

THE WORD "REVOLUTION" HAS OF COURSE ACQUIRED A SUBVERSIVE CONNOTATION
IN MODERN TIMES.  BUT IT HAS ROOTS THAT ARE EMINENTLY RESPECTABLE IN
AMERICAN HISTORY.  (FN2)  THIS COUNTRY IS THE PRODUCT OF REVOLUTION. 
OUR VERY BEING EMPHASIZES THAT WHEN GRIEVANCES PILE HIGH AND THERE ARE
NO POLITICAL REMEDIES, THE EXERCISE OF SOVEREIGN POWERS REVERTS TO THE
PEOPLE.  TEACHING AND ESPOUSING REVOLUTION - AS DISTINGUISHED FROM
INDULGING IN OVERT ACTS - ARE THEREFORE OBVIOUSLY WITHIN THE RANGE OF
THE FIRST AMENDMENT. 

DENNIS V. UNITED STATES, 341 U.S. 494, DECIDED IN 1951 AT THE PEAK OF
THE NOTORIOUS "WITCH HUNT" IN THIS NATION, IS TO THE CONTRARY.  MY
BROTHER BLACK AND I, THE ONLY REMAINING MEMBERS OF THE COURT WHO SAT IN
THAT CASE, DISSENTED.  THE CRIME CHARGED AND SUSTAINED WAS A CONSPIRACY
TO TEACH AND ADVOCATE THE MARXIST CREED, INCLUDING THE OVERTHROW OF THE
GOVERNMENT BY FORCE OR VIOLENCE.  ID., AT 497.  NO OVERT ACTS DESIGNED
TO OVERTHROW THE GOVERNMENT WERE CHARGED; NO ATTEMPT TO OVERTHROW WAS
CHARGED.  THE CRIME WAS AN AGREEMENT TO TEACH, ADVOCATE, AND ESPOUSE A
CREED THAT WAS AND IS NOXIOUS TO MOST AMERICANS. 

I CANNOT BELIEVE THAT DENNIS HAS ANY CONTINUING VITALITY.  IT IS OUT
OF LINE WITH TERMINIELLO V. CHICAGO, 337 U.S. 1, WHERE A FASCIST WAS
HELD TO BE PROTECTED BY THE FIRST AMENDMENT FOR ESPOUSING HIS CREED,
WHICH MOST AMERICANS FIND AS OBNOXIOUS AS COMMUNISM. 

IT IS NOT CONCEIVABLE THAT THE COURT THAT DECIDED DOMBROWSKI V.
PFISTER, 380 U.S. 479, WOULD APPROVE DENNIS.  IN DOMBROWSKI A STATE
PROSECUTION FOR SUBVERSION WAS ENJOINED.  THE PEOPLE PROSECUTED WERE
FOSTERING CIVIL RIGHTS FOR NEGROES IN THE SOUTH.  WHILE IT WOULD HAVE
BEEN POSSIBLE TO WIN THE STATE CASE ON CONSTITUTIONAL GROUNDS, THE
COURT HELD THAT THE TRIAL ITSELF WOULD RESULT IN IRREPARABLE INJURY. 
WE SAID:    "BECAUSE OF THE SENSITIVE NATURE OF CONSTITUTIONALLY
PROTECTED EXPRESSION, WE HAVE NOT REQUIRED THAT ALL OF THOSE SUBJECT TO
OVERBROAD REGULATIONS RISK PROSECUTION TO TEST THEIR RIGHTS.  FOR FREE
EXPRESSION - OF TRANSCENDENT VALUE TO ALL SOCIETY, AND NOT MERELY TO
THOSE EXERCISING THEIR RIGHTS - MIGHT BE THE LOSER."  ID., AT 486.    A
COMMUNIST-FRONT ORGANIZATION UNDER THE PRESENT ACT IS A GROUP PROMOTING
THE WORLD COMMUNIST MOVEMENT.  SEE 50 U.S.C. SEC. 782(4).  IF IT WERE
DEFINED AS A GROUP WHICH, FOR EXAMPLE, COLLECTED ARMS FOR THE VIOLENT
OVERTHROW OF GOVERNMENT, THE CASE WOULD BE FREE OF FIRST AMENDMENT
PROBLEMS.  BUT HERE AS IN DOMBROWSKI THE STATUTE IS OVERBROAD, BRINGING
WITHIN ITS SCOPE ADVOCACY, ESPOUSAL, AND TEACHING OF A CREED OR OF
CAUSES FOR WHICH THE COMMUNIST MOVEMENT STANDS. 

IF AN ORGANIZATION IS CLASSIFIED A COMMUNIST FRONT, SERIOUS
CONSEQUENCES FOLLOW:  EMPLOYMENT OF ITS MEMBERS IS RESTRICTED, SEC 784;
APPLICATION FOR OR USE OF PASSPORTS IS MADE ILLEGAL, SEC 785;
REGISTRATION IS REQUIRED, SEC 786; USE OF THE MAILS AND OF THE RADIO
AND TV IS CURTAILED, SEC 789; TAX EXEMPTIONS ARE DENIED, SEC 790.  AT
LEAST SOME OF THESE PROVISIONS ARE UNCONSTITUTIONAL UNDER OUR DECISIONS
AS BILLS OF ATTAINDER OR AS A DENIAL OF FIRST AND FIFTH AMENDMENT
RIGHTS.  YET VINDICATION WOULD COME ONLY AFTER LONG AND PROTRACTED
HEARINGS AND APPEALS.  MEANWHILE THERE WOULD BE A PROFOUND "CHILLING"
EFFECT ON THE EXERCISE OF FIRST AMENDMENT RIGHTS  (FN3)  WITHIN THE
PRINCIPLE OF DOMBROWSKI V. PFISTER. 

THE MEMBERS OF THE DUBOIS CLUBS MAY OR MAY NOT BE COMMUNISTS.  BUT AS
I SAID, I SEE NO POSSIBILITY UNDER OUR CONSTITUTION OF PENALIZING ONE
FOR HOLDING OR EXPRESSING THAT OR ANY OTHER BELIEF.  THE DUBOIS CLUBS
MAY ADVOCATE CAUSES THAT PARALLEL COMMUNIST THOUGHT OR COMMUNIST
POLICIES.  (FN4)  THEY APPEAR, FOR EXAMPLE, TO ADVOCATE THE TERMINATION
OF THE HOSTILITIES IN VIETNAM.  BUT SO FAR AS ADVOCACY IS CONCERNED, I
SEE NO CONSTITUTIONAL WAY OF PUTTING RESTRAINTS ON THEM SO LONG AS WE
HAVE THE FIRST AMENDMENT. 

HARASSING THEM BY PUBLIC HEARINGS AND BY PROBING INTO THEIR BELIEFS
AND ATTITUDES, PILLORYING THEM FOR THEIR MINORITY VIEWS BY EXPOSING
THEM TO THE HEARINGS UNDER THE ACT - THESE ACTIONS WILL HAVE THE SAME
"CHILLING" EFFECT AS THE COURT HELD THE TRIAL IN DOMBROWSKI WOULD HAVE
HAD. 

FIRST AMENDMENT VALUES RIDE ON WHAT WE DO TODAY.  IF GOVERNMENT CAN
INVESTIGATE IDEAS, BELIEFS, AND ADVOCACY AT THE LEFT END OF THE
SPECTRUM, I SEE NO REASON WHY IT MAY NOT INVESTIGATE AT ANY OTHER PART
OF THE SPECTRUM.  YET AS I READ THE CONSTITUTION, ONE OF ITS ESSENTIAL
PURPOSES WAS TO TAKE GOVERNMENT OFF THE BACKS OF PEOPLE AND KEEP IT
OFF.  THERE IS THE LINE BETWEEN ACTION ON THE ONE HAND AND IDEAS,
BELIEFS, AND ADVOCACY ON THE OTHER.  THE FORMER IS A LEGITIMATE SPHERE
FOR LEGISLATION.  IDEAS, BELIEFS, AND ADVOCACY ARE BEYOND THE REACH OF
COMMITTEES, AGENCIES, CONGRESS, AND THE COURTS. 

MR. JUSTICE BLACK AND I ADHERE TO THE VIEWS WE EXPRESSED IN THE OTHER
CASES WE HAVE HAD UNDER THIS ACT (SEE, E.G., COMMUNIST PARTY V. SACB,
367 U.S. 1, 137, 169; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500,
517, 519; AMERICAN COMMITTEE V. SACB, 380 U.S. 503, 506, 511; BRIGADE
VETERANS V. SACB, 380 U.S. 513, 514) AND WOULD REVERSE THE JUDGMENT
BELOW. 

FN1  HANNAH ARENDT WRITES: 

"THE WORD 'PEOPLE' RETAINED FOR THEM (THE FOUNDING FATHERS) THE
MEANING OF MANYNESS, OF THE ENDLESS VARIETY OF A MULTITUDE WHOSE
MAJESTY RESIDED IN ITS VERY PLURALITY.  OPPOSITION TO PUBLIC OPINION,
NAMELY TO THE POTENTIAL UNANIMITY OF ALL, WAS THEREFORE ONE OF THE MANY
THINGS UPON WHICH THE MEN OF THE AMERICAN REVOLUTION WERE IN COMPLETE
AGREEMENT; THEY KNEW THAT THE PUBLIC REALM IN A REPUBLIC WAS
CONSTITUTED BY AN EXCHANGE OF OPINION BETWEEN EQUALS, AND THAT THIS
REALM WOULD SIMPLY DISAPPEAR THE VERY MOMENT AN EXCHANGE BECAME
SUPERFLUOUS BECAUSE ALL EQUALS HAPPENED TO BE OF THE SAME OPINION."  ON
REVOLUTION 88-89 (1963). 

FN2  "AMERICA HAD BECOME THE SYMBOL OF A SOCIETY WITHOUT POVERTY LONG
BEFORE THE MODERN AGE IN ITS UNIQUE TECHNOLOGICAL DEVELOPMENT HAD
ACTUALLY DISCOVERED THE MEANS TO ABOLISH THAT ABJECT MISERY OF SHEER
WANT WHICH HAD ALWAYS BEEN HELD TO BE ETERNAL.  AND ONLY AFTER THIS HAD
HAPPENED AND HAD BECOME KNOWN TO EUROPEAN MANKIND COULD THE SOCIAL
QUESTION AND THE REBELLION OF THE POOR COME TO PLAY A TRULY
REVOLUTIONARY ROLE.  THE ANCIENT CYCLE OF SEMPITERNAL RECURRENCES HAD
BEEN BASED UPON AN ASSUMEDLY 'NATURAL' DISTINCTION OF RICH AND POOR;
THE FACTUAL EXISTENCE OF AMERICAN SOCIETY PRIOR TO THE OUTBREAK OF THE
REVOLUTION HAD BROKEN THIS CYCLE ONCE AND FOR ALL."  H. ARENDT, ON
REVOLUTION 15-16 (1963). 

FN3  NO SUCH QUESTION WAS PRESENTED IN AMERICAN COMMITTEE FOR
PROTECTION OF FOREIGN BORN V. SACB, 380 U.S. 503, AND VETERANS OF THE
ABRAHAM LINCOLN BRIGADE V. SACB, 380 U.S. 513.  THOSE CASES WERE
REVIEWS OF THE ACTIONS OF THE BOARD AND DID NOT INVOLVE THE PRESENT
QUESTION, WHETHER IT IS NECESSARY TO EXHAUST ADMINISTRATIVE REMEDIES AS
A PREREQUISITE TO CHALLENGING THE ACT AS BEING INVALID ON ITS FACE. 

FN4  ON THE VICES OF PARALLELISM SEE UNITED STATES V. LATTIMORE, 127
F. SUPP. 405 (D.C.D.C.), AFF'D BY EQUALLY DIVIDED COURT, 98 U.S. APP.
D.C. 77, 232 F.2D 334 (EN BANC). 
..END :










BURKE V. FORD 389 U.S. 320 


NO. 632.  DECIDED DECEMBER 11, 1967.  - CERTIORARI GRANTED; 377 F.2D
901, REVERSED. 


PETITIONERS, OKLAHOMA LIQUOR RETAILERS, SUED UNDER SEC 1 OF THE
SHERMAN ACT TO ENJOIN A STATE-WIDE MARKET DIVISION BY TERRITORIES AND
BRANDS BY THE OKLAHOMA LIQUOR WHOLESALERS.  THERE ARE NO DISTILLERIES
IN OKLAHOMA.  OUT-OF-STATE LIQUOR IS SHIPPED IN SUBSTANTIAL VOLUME TO
WHOLESALERS' WAREHOUSES AND HELD THERE UNTIL PURCHASED BY RETAILERS. 
THE DISTRICT COURT, FINDING, INTER ALIA, THAT THE LIQUOR "CAME TO REST"
IN THE WHOLESALERS' WAREHOUSES AND THAT THE ACT'S INTERSTATE COMMERCE
PREREQUISITE WAS THUS NOT SATISFIED, ENTERED JUDGMENT FOR THE
WHOLESALERS.  THE COURT OF APPEALS AFFIRMED, SOLELY ON THE GROUND THAT
THE PROOF DID NOT SHOW THAT THE ACTIVITIES COMPLAINED OF WERE IN OR
ADVERSELY AFFECTED INTERSTATE COMMERCE.  HELD:  WHETHER OR NOT THE
LOWER COURTS' CONCLUSION WAS VALID THAT THE MARKET DIVISION DID NOT
OCCUR IN INTERSTATE COMMERCE, IT INEVITABLY AFFECTED SUCH COMMERCE AND
THUS CAME WITHIN THE ACT SINCE THE TERRITORIAL DIVISION BY REDUCING
COMPETITION ALMOST SURELY RESULTED IN FEWER SALES TO WHOLESALERS BY OUT
OF-STATE DISTILLERS AND THE BRANDS DIVISION MEANT FEWER WHOLESALE
OUTLETS AVAILABLE TO ANY ONE DISTILLER. 

BURKE, DBA RANCH ACRES LIQUORS, ET AL. V. FORD ET AL., DBA ALL BRANDS
SALES CO., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

PETITIONERS, OKLAHOMA LIQUOR RETAILERS, BROUGHT THIS ACTION UNDER
SEC. 1 OF THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C. SEC 1, TO ENJOIN AN
ALLEGED STATE-WIDE MARKET DIVISION BY ALL OKLAHOMA LIQUOR WHOLESALERS. 
THE TRIAL JUDGE, SITTING WITHOUT A JURY, FOUND THAT THERE HAD IN FACT
BEEN A DIVISON OF MARKETS - BOTH BY TERRITORIES AND BY BRANDS.  THE
COURT NEVERTHELESS ENTERED JUDGMENT FOR THE WHOLESALERS BECAUSE, AMONG
OTHER REASONS, IT FOUND THAT THE INTERSTATE COMMERCE PREREQUISITE OF
THE SHERMAN ACT WAS NOT SATISFIED.  THE COURT OF APPEALS AFFIRMED UPON
THE SOLE GROUND THAT "THE PROOF WAS ENTIRELY INSUFFICIENT TO SHOW THAT
THE ACTIVITIES COMPLAINED OF WERE IN OR ADVERSELY AFFECTED INTERSTATE
COMMERCE."  377 F.2D 901, 903. 

THERE ARE NO LIQUOR DISTILLERIES IN OKLAHOMA.  LIQUOR IS SHIPPED IN
FROM OTHER STATES TO THE WAREHOUSES OF THE WHOLESALERS, WHERE IT IS
INVENTORIED AND HELD UNTIL PURCHASED BY RETAILERS.  THE DISTRICT COURT
AND THE COURT OF APPEALS FOUND THAT THE LIQUOR "CAME TO REST" IN THE
WHOLESALERS' WAREHOUSES AND THAT INTERSTATE COMMERCE CEASED AT THAT
POINT.  HENCE, THEY CONCLUDED THAT THE WHOLESALERS' DIVISION OF THE
OKLAHOMA MARKET DID NOT TAKE PLACE "IN INTERSTATE COMMERCE."  BUT
WHATEVER THE VALIDITY OF THAT CONCLUSION, IT DOES NOT END THE MATTER. 
FOR IT IS WELL ESTABLISHED THAT AN ACTIVITY WHICH DOES NOT ITSELF OCCUR
IN INTERSTATE COMMERCE COMES WITHIN THE SCOPE OF THE SHERMAN ACT IF IT
SUBSTANTIALLY AFFECTS INTERSTATE COMMERCE.  UNITED STATES V. EMPLOYING
PLASTERERS ASSOCIATION, 347 U.S. 186; MANDEVILLE ISLAND FARMS, INC. V.
AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219. 

RECOGNIZING THIS, THE DISTRICT COURT WENT ON TO FIND THAT THE
WHOLESALERS' MARKET DIVISION HAD NO EFFECT ON INTERSTATE COMMERCE, AND
THE COURT OF APPEALS AGREED.  THE COURT OF APPEALS HELD THAT PROOF OF A
STATE-WIDE WHOLESALERS' MARKET DIVISION IN THE DISTRIBUTION OF GOODS
RETAILED IN SUBSTANTIAL VOLUME  (FN1)  WITHIN THE STATE BUT PRODUCED
ENTIRELY OUT OF THE STATE WAS NOT BY ITSELF SUFFICIENT PROOF OF AN
EFFECT ON INTERSTATE COMMERCE.  WE DISAGREE.  HORIZONTAL TERRITORIAL
DIVISIONS ALMOST INVARIABLY REDUCE COMPETITION AMONG THE PARTICIPANTS. 
ADDYSTON PIPE & STEEL CO. V. UNITED STATES, 175 U.S. 211; UNITED STATES
V. SEALY, INC., 388 U.S. 350.  WHEN COMPETITION IS REDUCED, PRICES
INCREASE AND UNIT SALES DECREASE.  THE WHOLESALERS' TERRITORIAL
DIVISION HERE ALMOST SURELY RESULTED IN FEWER SALES TO RETAILERS -
HENCE FEWER PURCHASES FROM OUT-OF-STATE DISTILLERS - THAN WOULD HAVE
OCCURRED HAD FREE COMPETITION PREVAILED AMONG THE WHOLESALERS.  (FN2)
IN ADDITION THE WHOLESALERS' DIVISION OF BRANDS MEANT FEWER WHOLESALE
OUTLETS AVAILABLE TO ANY ONE OUT-OF-STATE DISTILLER.  THUS THE STATE
WIDE WHOLESALERS' MARKET DIVISION INEVITABLY AFFECTED INTERSTATE
COMMERCE. 

THE PETITION FOR CERTIORARI IS GRANTED AND THE JUDGMENT OF THE COURT
OF APPEALS IS REVERSED.  THE CASE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

FN1  BETWEEN $44 AND $45 MILLION IN WHOLESALE PURCHASES IN 1964. 

FN2  THE COURT OF APPEALS STRESSED THE FACT THAT UNIT SALES TO THE
WHOLESALERS INCREASED (885,976 CASES TO 891,176 CASES) FROM 1963 TO
1964 WHILE THE MARKET DIVISION WAS IN EFFECT.  BUT IF THERE HAD BEEN
FREE COMPETITION AMONG THE WHOLESALERS - ALL OTHER THINGS BEING EQUAL -
PRESUMABLY SALES TO THEM WOULD HAVE INCREASED EVEN MORE. 

THE INCREASE IN LIQUOR SALES NOTED BY THE COURT OF APPEALS WAS 0.6%;
DURING THE SAME PERIOD TOTAL PERSONAL INCOME IN OKLAHOMA INCREASED FROM
$4,880 MILLION TO $5,220 MILLION, AN INCREASE OF 7.0%. TABLE 1, SURVEY
OF CURRENT BUSINESS, P. 30, OFFICE OF BUSINESS ECONOMICS, DEPARTMENT OF
COMMERCE (AUGUST 1967).  ADJUSTING FOR CONCURRENT PRICE INFLATION (SEE
TABLE 8.1, SURVEY OF CURRENT BUSINESS, P. 42 (JULY 1967)), THE INCREASE
IN REAL PERSONAL INCOME WAS APPROXIMATELY 5.7%. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 
..END :




















EAGAR V. MAGMA COPPER CO. 389 U.S. 323 


NO. 659.  DECIDED DECEMBER 11, 1967.  - CERTIORARI GRANTED; 380 F.2D
318, REVERSED. 


EAGAR ET AL. V. MAGMA COPPER CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  ACCARDI V. PENNSYLVANIA R. CO., 383 U.S. 225. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART CONCUR, DISSENTING. 

PETITIONER EAGER (FN1) BEGAN WORKING FOR MAGMA COPPER COMPANY MARCH
12, 1958, AND LEFT TO ENTER MILITARY SERVICE JUST SHY OF ONE YEAR
LATER, MARCH 6, 1959.  AFTER BEING HONORABLY DISCHARGED, EAGAR PROMPTLY
RESUMED HIS EMPLOYMENT WITH MAGMA, MAY 2, 1962.  HE SEEKS VACATION PAY
FOR THE WORK YEAR FOLLOWING MARCH 12, 1958, AND FOR THE MEMORIAL DAY
AND INDEPENDENCE DAY HOLIDAYS IN 1962, WHICH FOLLOWED HIS RE
EMPLOYMENT. 

UNDER MAGMA'S COLLECTIVE BARGAINING AGREEMENT WITH PETITIONERS'
UNION, PAID VACATIONS ARE PROVIDED AT THE END OF A WORK YEAR IF THE
EMPLOYEE WORKS 75% OF THE SHIFTS AVAILABLE TO HIM IN THAT YEAR AND IS
EMPLOYED WITH MAGMA ON THE ONE-YEAR ANNIVERSARY DATE.  EMPLOYEES WHO
GET PAID HOLIDAYS MUST HAVE WORKED THE SHIFT BEFORE AND THE SHIFT AFTER
THE HOLIDAY AND HAVE BEEN ON MAGMA'S PAYROLL CONTINUOUSLY FOR THREE
MONTHS BEFORE THE HOLIDAY. 

ALTHOUGH EAGAR HAD WORKED 75% OF THE SHIFTS FOR THE YEAR MARCH 12,
1958, TO MARCH 12, 1959, AND HAD WORKED THE SHIFTS BEFORE AND AFTER
MEMORIAL DAY AND INDEPENDENCE DAY IN 1962, MAGMA DENIED HIM BENEFITS. 
EAGAR WAS NOT, MAGMA CLAIMS, IN ITS EMPLOY ON MARCH 12, 1959, NOR HAD
HE BEEN ON THE PAYROLL THREE STRAIGHT MONTHS PRIOR TO MEMORIAL AND
INDEPENDENCE DAYS IN 1962. 

THE MAJORITY HOLD THAT MAGMA HAS VIOLATED SEC. 9(C) OF THE UNIVERSAL
MILITARY TRAINING AND SERVICE ACT, 62 STAT. 615, AS AMENDED, 50 U.S.C.
APP. SEC 459, WHICH PROVIDES, INTER ALIA, THAT A RETURNING SERVICEMAN
SUCH AS EAGAR WHO IS RE-EMPLOYED "SHALL BE CONSIDERED AS HAVING BEEN ON
FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE
IN THE ARMED FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY,
AND SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS
OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES
RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH
THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES  ...
."  (FN2) 

BENEFITS."  IN DEALING WITH SENIORITY PROBLEMS UNDER A LIKE STATUTORY
PROVISION, WE HELD THAT THE EMPLOYEE IS TO BE TREATED AS IF HE HAD KEPT
HIS POSITION CONTINUOUSLY DURING HIS STINT IN THE ARMY.  ACCARDI V.
PENNSYLVANIA R. CO., 383 U.S. 225, 228; FISHGOLD V. SULLIVAN CORP., 328
U.S. 275, 284-285. 

BUT THIS CASE DOES NOT CONCERN "SENIORITY."  NO EMPLOYEE OF MAGMA, IT
APPEARS, REGARDLESS OF HOW LONG HE HAS BEEN WITH THE FIRM, GETS PAID
VACATION IF HE IS NOT ON THE PAYROLL ON HIS WORK-YEAR ANNIVERSARY
DATE.  NO EMPLOYEE GETS A PAID HOLIDAY UNLESS HE HAS BEEN WITH MAGMA
FOR THE THREE PRECEDING MONTHS.  THE LENGTH OF VACATION AND THE AMOUNT
OF VACATION AND HOLIDAY PAY MAGMA GIVES DO TURN ON SENIORITY.  BUT
PETITIONERS DO NOT CONTEST MAGMA'S ASSERTION THAT IT DOES FIGURE THE
LENGTH OF VACATION FOR RETURNING SERVICEMEN AS THOUGH THEY HAD BEEN
CONSTANTLY ON THE PAYROLL DURING THEIR TOUR OF DUTY IN THE MILITARY. 
IN CONSIDERING THE EMPLOYEE'S ELIGIBILITY FOR VACATION AND HOLIDAY PAY,
SINCE SENIORITY IS NOT INVOLVED, THE COURTS MUST APPLY THE "OTHER
BENEFITS" CLAUSE OF SEC. 9(C).  SEE BORGES V. ART STEEL CO., 246 F.2D
735, 738 (C.A.2D CIR.).  AS NOTED, THESE BENEFITS ARE ACCORDED AS IF
THE EMPLOYEE WERE ON "FURLOUGH OR LEAVE OF ABSENCE" WHILE IN SERVICE. 
THAT IS PRECISELY WHAT MAGMA HAS DONE. 

ACCARDI ADMONISHES THE COURTS TO GIVE THE TERM "SENIORITY" A BROAD
INTERPRETATION.  383 U.S., AT 229.  BUT ACCARDI DID NOT INVOLVE THE
"OTHER BENEFITS" CLAUSE, WHICH MUST BE APPLICABLE IN THIS CLEAR FRINGE
BENEFITS CASE IF AT ALL.  (FN3)  AS JUDGE LEARNED HAND SAID, "OBVIOUSLY
THE CONSIDERATIONS WHICH MIGHT MAKE IT PROPER THAT SERVICE IN THE ARMY
SHOULD NOT AFFECT A MAN'S SENIORITY ARE UTTERLY DIFFERENT FROM THOSE
WHICH SHOULD COUNT IN COMPUTING VACATIONS."  DWYER V. CROSBY CO., 167
F.2D 567, 570 (C.A.2D CIR.).  I WOULD AFFIRM THE JUDGMENT BELOW. 

FN1  THERE ARE THREE OTHER EMPLOYEES OF RESPONDENT MAGMA COPPER IN
ADDITION TO EAGAR ON WHOSE BEHALF THE DEPARTMENT OF JUSTICE HAS SOUGHT
REVIEW.  THE SOLICITOR GENERAL AND RESPONDENT AGREE THAT THE FACTS IN
EAGAR'S CASE ARE REPRESENTATIVE OF THE OTHER PETITIONERS' CASES, AND
THIS COURT IS ASKED TO RESOLVE THE LEGAL DISPUTE ON THE BASIS OF THESE
FACTS. 

FN2  SECTION 9(C) ALSO PROVIDES: 

"IT IS DECLARED TO BE THE SENSE OF THE CONGRESS THAT ANY PERSON WHO
IS RESTORED TO A POSITION IN ACCORDANCE WITH  ...  THIS SECTION SHOULD
BE SO RESTORED IN SUCH A MANNER AS TO GIVE HIM SUCH STATUS IN HIS
EMPLOYMENT AS HE WOULD HAVE ENJOYED IF HE HAD CONTINUED IN SUCH
EMPLOYMENT CONTINUOUSLY FROM THE TIME OF HIS ENTERING THE ARMED FORCES
UNTIL THE TIME OF HIS RESTORATION TO SUCH EMPLOYMENT." 

FN3  THE "SENSE OF CONGRESS" PROVISO IN SEC. 9(C) DOES NOT INDICATE A
DIFFERENT RESULT.  THE LANGUAGE WAS ADDED IN 1948 WHEN THE "SENIORITY"
AND "OTHER BENEFITS" PROVISIONS WERE RE-ENACTED UPON THE EXPIRATION OF
SEC 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890. 
THE "SENSE OF CONGRESS" IS CONCERNED WITH EMPLOYEE "STATUS," SEE N. 2,
SUPRA.  BUT IF "STATUS" WERE MEANT TO INCLUDE ELIGIBILITY FOR FRINGE
BENEFITS, CONGRESS WOULD NOT HAVE LEFT UNCHANGED THE EXPLICIT PROVISION
THAT "OTHER BENEFITS" ARE TO BE DISPENSED AS IF THE RETURNING
SERVICEMAN HAD BEEN ON LEAVE OF ABSENCE. 
..END :





FIREMEN V. BANGOR & A.R. CO. 389 U.S. 327 


NO. 353.  DECIDED DECEMBER 11, 1967.  - REPORTED BELOW:  127 U.S. APP.
D.C. 23, 380 F.2D 570. 


PETITION FOR CERTIORARI DENIED BECAUSE CASE HELD NOT RIPE FOR REVIEW
WHERE COURT OF APPEALS HAD ORDERED REMAND FOR DISTRICT COURT TO
DETERMINE IF PETITIONER UNION WAS IN CONTEMPT OF DISTRICT COURT'S ORDER
NOT TO STRIKE AND, IF SO, WHETHER THAT COURT'S COERCIVE FINE WAS
WARRANTED. 

BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN ET AL. V. BANGOR &
AROOSTOOK RAILROAD CO. ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE ORDER OF DECEMBER 4, 1967, DENYING THE PETITION FOR A WRIT OF
CERTIORARI* IS VACATED. 

*(REPORTER'S NOTE:  SEE POST, P. 970.) 

THIS CASE IS A CONSEQUENCE OF A DISPUTE WITH RESPECT TO THE SCOPE OF
AN ARBITRATION AWARD GOVERNING THE MANNING OF TRAINS AND ENGINES IN
FREIGHT SERVICE.  THE UNION TOOK THE POSITION THAT THE AWARD HAD NO
EFFECT AFTER 12:01 A.M., MARCH 31, 1966.  ON MARCH 28, THE DISTRICT
COURT FOR THE DISTRICT OF COLOMBIA ISSUED A TEMPORARY RESTRAINING ORDER
FORBIDDING A STRIKE.  ON MARCH 31, THE UNION STRUCK AGAINST A NUMBER OF
RAILROADS.  THE DISTRICT COURT ENTERED CONTEMPT ORDERS, IMPOSING
SUBSTANTIAL FINES FOR ALLEGED VIOLATION OF ITS RESTRAINING ORDER.  THE
COURT OF APPEALS RULED ON VARIOUS LEGAL ISSUES PRESENTED TO IT BUT
REMANDED TO THE DISTRICT COURT TO CONSIDER WHETHER THERE HAD IN FACT
BEEN A CONTEMPT, AND, ALSO, IF THERE WAS A CONTEMPT, WHETHER IT WAS "OF
SUCH MAGNITUDE AS TO WARRANT RETENTION, IN PART OR TO ANY EXTENT, OF
THE COERCIVE FINE ORIGINALLY PROVIDED FOR IN CONTEMPLATION OF AN
OUTRIGHT REFUSAL TO OBEY." 

PETITIONERS SEEK CERTIORARI TO REVIEW THE ADVERSE RULINGS MADE BY THE
COURT OF APPEALS.  HOWEVER, BECAUSE THE COURT OF APPEALS REMANDED THE
CASE, IT IS NOT YET RIPE FOR REVIEW BY THIS COURT.  THE PETITION FOR A
WRIT OF CERTIORARI IS DENIED.  SEE HAMILTON SHOE CO. V. WOLF BROTHERS,
240 U.S. 251, 257-258 (1916). 

MR. JUSTICE BLACK WOULD GRANT THE PETITION AND SET THE CASE FOR
ARGUMENT. 
..END :




GERMANN V. UNITED STATES 389 U.S. 329 


NO. 384.  DECIDED DECEMBER 11, 1967.  - CERTIORARI GRANTED; 370 F.2D
1019, VACATED AND REMANDED. 


GERMANN V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED. 

THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT IS VACATED, AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN ORDER TO GIVE
THAT COURT AN OPPORTUNITY TO CONSIDER THE MOTION TO SUBSTITUTE THE
KONKURSAMT BASEL-STADT (THE BANKRUPTCY OFFICE OF BASEL, SWITZERLAND) AS
PARTY PETITIONER, AND TO RECONSIDER THAT COURT'S FORMER ADJUDICATION OF
CONTEMPT AND THE ACCOMPANYING FINE IN LIGHT OF THE ORIGINAL
PETITIONER'S DEATH.  IT IS SO ORDERED. 
..END :








UNITED NATIONAL INS. CO. V. CALIFORNIA 389 U.S. 330 


NO. 669.  DECIDED DECEMBER 11, 1967.  - 66 CAL. 2D 577, 427 P.2D 199,
APPEAL DISMISSED. 


UNITED NATIONAL LIFE INSURANCE CO. ET AL. V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE ASSIGNED FOR ORAL
ARGUMENT. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










DEMERS V. LANGTON 389 U.S. 330 


NO. 650, MISC.  DECIDED DECEMBER 11, 1967.  - R.I. - , 230 A.2D 870,
APPEAL DISMISSED AND CERTIORARI DENIED. 


DEMERS V. LANGTON, TAX ADMINISTRATOR. 

APPEAL FROM THE SUPREME COURT OF RHODE ISLAND. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SPRINGFIELD V. GREEN 389 U.S. 331 


NO. 675.  DECIDED DECEMBER 11, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


TOWNSHIP OF SPRINGFIELD V. GREEN ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















DEVORE V. DENTAL EXAMINERS 389 U.S. 331 


NO. 686.  DECIDED DECEMBER 11, 1967.  - APPEAL DISMISSED. 


DEVORE V. WEST VIRGINIA BOARD OF DENTAL EXAMINERS ET AL. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :















MINE WORKERS V. ILLINOIS BAR ASSN. 389 U.S. 217 


NO. 33.  ARGUED OCTOBER 17, 1967.  - DECIDED DECEMBER 5, 1967.  - 35
ILL. 2D 112, 219 N.E.2D 503, VACATED AND REMANDED. 


THE ILLINOIS BAR ASSOCIATION AND OTHERS BROUGHT THIS ACTION TO ENJOIN
PETITIONER UNION FROM THE UNAUTHORIZED PRACTICE OF LAW.  THE UNION
EMPLOYS A LICENSED LAWYER, SOLELY COMPENSATED BY AN ANNUAL SALARY, TO
REPRESENT MEMBERS AND THEIR DEPENDENTS IN CONNECTION WITH THEIR CLAIMS
UNDER THE ILLINOIS WORKMEN'S COMPENSATION ACT.  THE TRIAL COURT FOUND
THAT THE UNION'S EMPLOYMENT OF THE ATTORNEY CONSTITUTED UNAUTHORIZED
PRACTICE OF LAW AND ENJOINED THE UNION FROM "EMPLOYING ATTORNEYS ON
SALARY OR RETAINER BASIS TO REPRESENT ITS MEMBERS WITH RESPECT TO
WORKMEN'S COMPENSATION (OR OTHER STATUTORY) CLAIMS."  THE ILLINOIS
SUPREME COURT AFFIRMED, REJECTING PETITIONER'S CONTENTIONS THAT THE
DECREE VIOLATED THE FIRST AND FOURTEENTH AMENDMENTS.  HELD:  THE TRIAL
COURT'S DECREE PREVENTING PETITIONER FROM HIRING ATTORNEYS ON A SALARY
BASIS TO ASSIST ITS MEMBERS IN ASSERTING THEIR LEGAL RIGHTS VIOLATES
THE FREEDOM OF SPEECH, ASSEMBLY, AND PETITION PROVISIONS OF THE FIRST
AMENDMENT AS INCORPORATED BY THE FOURTEENTH AMENDMENT.  PP. 221-225. 

(A)  NO RESTRAINTS BY LEGISLATION OR OTHERWISE UPON FIRST AMENDMENT
RIGHTS CAN BE SUSTAINED MERELY BECAUSE THEY WERE IMPOSED FOR THE
PURPOSE OF DEALING WITH SOME EVIL WITHIN THE STATE'S COMPETENCE.  P.
222. 

(B)  IN THIS CASE, AS IN RAILROAD TRAINMEN V. VIRGINIA BAR, 377 U.S.
1 (1964), AND NAACP V. BUTTON, 371 U.S. 415 (1963), THE PRINCIPLES OF
WHICH ARE CONTROLLING HERE, THE REMOTE POSSIBILITY OF HARM ARISING FROM
THE THEORETICALLY CONFLICTING INTERESTS OF THE UNION AND ITS MEMBERS
CANNOT JUSTIFY THE SUBSTANTIAL IMPAIRMENT OF THE UNION MEMBERS'
ASSOCIATIONAL RIGHTS WHICH RESULTS FROM THE TRIAL COURT'S DECREE.  PP.
222-224. 

UNITED MINE WORKERS OF AMERICA, DISTRICT 12 V. ILLINOIS STATE BAR
ASSOCIATION ET AL. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE ILLINOIS STATE BAR ASSOCIATION AND OTHERS FILED THIS COMPLAINT TO
ENJOIN THE UNITED MINE WORKERS OF AMERICA, DISTRICT 12, FROM ENGAGING
IN CERTAIN PRACTICES ALLEGED TO CONSTITUTE THE UNAUTHORIZED PRACTICE OF
LAW.  THE ESSENCE OF THE COMPLAINT WAS THAT THE UNION HAD EMPLOYED A
LICENSED ATTORNEY ON A SALARY BASIS TO REPRESENT ANY OF ITS MEMBERS WHO
WISHED HIS SERVICES TO PROSECUTE WORKMEN'S COMPENSATION CLAIMS BEFORE
THE ILLINOIS INDUSTRIAL COMMISSION.  THE TRIAL COURT FOUND FROM FACTS
THAT WERE NOT IN DISPUTE THAT EMPLOYMENT OF AN ATTORNEY BY THE
ASSOCIATION FOR THIS PURPOSE DID CONSTITUTE UNAUTHORIZED PRACTICE AND
PERMANENTLY ENJOINED THE UNION FROM "EMPLOYING ATTORNEYS ON SALARY OR
RETAINER BASIS TO REPRESENT ITS MEMBERS WITH RESPECT TO WORKMEN'S
COMPENSATION CLAIMS AND ANY AND ALL OTHER CLAIMS WHICH THEY MAY HAVE
UNDER THE STATUTES AND LAWS OF ILLINOIS."  (FN1)  THE ILLINOIS SUPREME
COURT REJECTED THE MINE WORKERS' CONTENTION THAT THIS DECREE ABRIDGED
THEIR FREEDOM OF SPEECH, PETITION, AND ASSEMBLY UNDER THE FIRST AND
FOURTEENTH AMENDMENTS AND AFFIRMED.  WE GRANTED CERTIORARI, 386 U.S.
941 (1967), TO CONSIDER WHETHER THIS HOLDING CONFLICTS WITH OUR
DECISIONS IN RAILROAD TRAINMEN V. VIRGINIA BAR, 377 U.S. 1 (1964), AND
NAACP V. BUTTON, 371 U.S. 415 (1963). 

AS IN THE TRAINMEN CASE, WE DEAL HERE WITH A PROGRAM THAT HAS BEEN IN
SUCCESSFUL OPERATION FOR THE UNION MEMBERS FOR DECADES.  SHORTLY AFTER
ENACTMENT OF THE ILLINOIS WORKMEN'S COMPENSATION STATUTE (FN2) IN 1911,
THE MINE WORKERS REALIZED THAT SOME FORM OF MUTUAL PROTECTION WAS
NECESSARY TO ENABLE THEM TO ENJOY IN PRACTICE THE MANY BENEFITS THAT
THE STATUTE PROMISED IN THEORY.  AT THE UNION'S 1913 CONVENTION THE
SECRETARY-TREASURER REPORTED THAT ABUSES HAD ALREADY DEVELOPED:  "THE
INTERESTS OF THE MEMBERS WERE BEING JUGGLED AND EVEN WHEN NOT, THEY
WERE REQUIRED TO PAY FORTY OR FIFTY PER CENT OF THE AMOUNTS RECOVERED
IN DAMAGE SUITS, FOR ATTORNEY FEES."  IN RESPONSE TO THIS SITUATION THE
CONVENTION INSTRUCTED THE UNION'S INCOMING EXECUTIVE BOARD TO ESTABLISH
THE "LEGAL DEPARTMENT" WHICH IS NOW ATTACKED FOR ENGAGING IN THE
UNAUTHORIZED PRACTICE OF LAW. 

THE UNDISPUTED FACTS CONCERNING THE OPERATION OF THE UNION'S LEGAL
DEPARTMENT ARE THESE.  THE UNION EMPLOYS ONE ATTORNEY ON A SALARY BASIS
TO REPRESENT MEMBERS AND THEIR DEPENDENTS IN CONNECTION WITH CLAIMS FOR
PERSONAL INJURY AND DEATH UNDER THE ILLINOIS WORKMEN'S COMPENSATION
ACT.  THE TERMS OF THE ATTORNEY'S EMPLOYMENT, AS OUTLINED IN A LETTER
FROM THE ACTING PRESIDENT OF THE UNION TO THE PRESENT ATTORNEY, INCLUDE
THE FOLLOWING SPECIFIC PROVISION:  "YOU WILL RECEIVE NO FURTHER
INSTRUCTIONS OR DIRECTIONS AND HAVE NO INTERFERENCE FROM THE DISTRICT,
NOR FROM ANY OFFICER, AND YOUR OBLIGATIONS AND RELATIONS WILL BE TO AND
WITH ONLY THE SEVERAL PERSONS YOU REPRESENT."  THE RECORD SHOWS NO
DEPARTURE FROM THIS AGREEMENT.  THE UNION PROVIDES INJURED MEMBERS WITH
FORMS ENTITLED "REPORT TO ATTORNEY ON ACCIDENTS" AND ADVISES THEM TO
FILL OUT THESE FORMS AND SEND THEM TO THE UNION'S LEGAL DEPARTMENT. 
THERE IS NO LANGUAGE ON THE FORM WHICH SPECIFICALLY REQUESTS THE
ATTORNEY TO FILE WITH THE INDUSTRIAL COMMISSION AN APPLICATION FOR
ADJUSTMENT OF CLAIM ON BEHALF OF THE INJURED MEMBER, BUT WHEN ONE OF
THESE FORMS IS RECEIVED, THE ATTORNEY PRESUMES THAT IT DOES CONSTITUTE
SUCH A REQUEST.  THE MEMBERS MAY EMPLOY OTHER COUNSEL IF THEY DESIRE,
AND IN FACT THE UNION ATTORNEY FREQUENTLY SUGGESTS TO MEMBERS THAT THEY
CAN DO SO.  IN THAT EVENT THE ATTORNEY IS UNDER INSTRUCTIONS TO TURN
THE MEMBER'S FILE OVER TO THE NEW LAWYER IMMEDIATELY. 

THE APPLICATIONS FOR ADJUSTMENT OF CLAIM ARE PREPARED BY SECRETARIES
IN THE UNION OFFICES, AND ARE THEN FORWARDED BY THE SECRETARIES TO THE
INDUSTRIAL COMMISSION.  (FN3)  AFTER THE CLAIM IS SENT TO THE
COMMISSION, THE ATTORNEY PREPARES HIS CASE FROM THE FILE, USUALLY
WITHOUT DISCUSSING THE CLAIM WITH THE MEMBER INVOLVED.  THE ATTORNEY
DETERMINES WHAT HE BELIEVES THE CLAIM TO BE WORTH, PRESENTS HIS VIEWS
TO THE ATTORNEY FOR THE RESPONDENT COAL COMPANY DURING PREHEARING
NEGOTIATIONS, AND ATTEMPTS TO REACH A SETTLEMENT.  IF AN AGREEMENT
BETWEEN OPPOSING COUNSEL IS REACHED, THE UNION ATTORNEY WILL NOTIFY THE
INJURED MEMBER, WHO THEN DECIDES, IN LIGHT OF HIS ATTORNEY'S ADVICE,
WHETHER OR NOT TO ACCEPT THE OFFER.  IF NO SETTLEMENT IS REACHED, A
HEARING IS HELD BEFORE THE INDUSTRIAL COMMISSION, AND UNLESS THE
ATTORNEY HAS HAD OCCASION TO DISCUSS A SETTLEMENT PROPOSAL WITH THE
MEMBER, THIS HEARING WILL NORMALLY BE THE FIRST TIME THE ATTORNEY AND
HIS CLIENT COME INTO PERSONAL CONTACT WITH EACH OTHER.  IT IS
UNDERSTOOD BY THE UNION MEMBERSHIP, HOWEVER, THAT THE ATTORNEY IS
AVAILABLE FOR CONFERENCES ON CERTAIN DAYS AT PARTICULAR LOCATIONS.  THE
FULL AMOUNT OF ANY SETTLEMENT OR AWARD IS PAID DIRECTLY TO THE INJURED
MEMBER.  THE ATTORNEY RECEIVES NO PART OF IT, HIS ENTIRE COMPENSATION
BEING HIS ANNUAL SALARY PAID BY THE UNION. 

THE ILLINOIS SUPREME COURT REJECTED PETITIONER'S CONTENTION THAT ITS
MEMBERS HAD A RIGHT, PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS,
TO JOIN TOGETHER AND ASSIST ONE ANOTHER IN THE ASSERTION OF THEIR LEGAL
RIGHTS BY COLLECTIVELY HIRING AN ATTORNEY TO HANDLE THEIR CLAIMS.  THAT
COURT HELD THAT OUR DECISION IN RAILROAD TRAINMEN V. VIRGINIA BAR,
SUPRA, PROTECTED PLANS UNDER WHICH WORKERS WERE ADVISED TO CONSULT
SPECIFIC ATTORNEYS, BUT DID NOT EXTEND TO PROTECT PLANS INVOLVING AN
EXPLICIT HIRING OF SUCH ATTORNEYS BY THE UNION.  THE ILLINOIS COURT
RECOGNIZED THAT IN NAACP V. BUTTON, SUPRA, WE ALSO HELD PROTECTED A
PLAN UNDER WHICH THE ATTORNEYS RECOMMENDED TO MEMBERS WERE ACTUALLY
PAID BY THE ASSOCIATION, BUT THE ILLINOIS COURT VIEWED THE BUTTON CASE
AS CONCERNED CHIEFLY WITH LITIGATION THAT CAN BE CHARACTERIZED AS A
FORM OF POLITICAL EXPRESSION.  WE DO NOT THINK OUR DECISIONS IN
TRAINMEN AND BUTTON CAN BE SO NARROWLY LIMITED.  WE HOLD THAT THE
FREEDOM OF SPEECH, ASSEMBLY, AND PETITION GUARANTEED BY THE FIRST AND
FOURTEENTH (FN4) AMENDMENTS GIVES PETITIONER THE RIGHT TO HIRE
ATTORNEYS ON A SALARY BASIS TO ASSIST ITS MEMBERS IN THE ASSERTION OF
THEIR LEGAL RIGHTS. 

WE START WITH THE PREMISE THAT THE RIGHTS TO ASSEMBLE PEACEABLY AND
TO PETITION FOR A REDRESS OF GRIEVANCES ARE AMONG THE MOST PRECIOUS OF
THE LIBERTIES SAFEGUARDED BY THE BILL OF RIGHTS.  THESE RIGHTS,
MOREOVER, ARE INTIMATELY CONNECTED, BOTH IN ORIGIN AND IN PURPOSE, WITH
THE OTHER FIRST AMENDMENT RIGHTS OF FREE SPEECH AND FREE PRESS.  "ALL
THESE, THOUGH NOT IDENTICAL, ARE INSEPARABLE."   THOMAS V. COLLINS, 323
U.S. 516, 530 (1945).  SEE DE JONGE V. OREGON, 299 U.S. 353, 364
(1937).  THE FIRST AMENDMENT WOULD, HOWEVER, BE A HOLLOW PROMISE IF IT
LEFT GOVERNMENT FREE TO DESTROY OR ERODE ITS GUARANTEES BY INDIRECT
RESTRAINTS SO LONG AS NO LAW IS PASSED THAT PROHIBITS FREE SPEECH,
PRESS, PETITION, OR ASSEMBLY AS SUCH.  WE HAVE THEREFORE REPEATEDLY
HELD THAT LAWS WHICH ACTUALLY AFFECT THE EXERCISE OF THESE VITAL RIGHTS
CANNOT BE SUSTAINED MERELY BECAUSE THEY WERE ENACTED FOR THE PURPOSE OF
DEALING WITH SOME EVIL WITHIN THE STATE'S LEGISLATIVE COMPETENCE, OR
EVEN BECAUSE THE LAWS DO IN FACT PROVIDE A HELPFUL MEANS OF DEALING
WITH SUCH AN EVIL.  SCHNEIDER V. STATE, 308 U.S. 147 (1939); CANTWELL
V. CONNECTICUT, 310 U.S. 296 (1940). 

THE FOREGOING WERE THE PRINCIPLES WE INVOKED WHEN WE DEALT IN THE
BUTTON AND TRAINMEN CASES WITH THE RIGHT OF AN ASSOCIATION TO PROVIDE
LEGAL SERVICES FOR ITS MEMBERS.  THAT THE STATES HAVE BROAD POWER TO
REGULATE THE PRACTICE OF LAW IS, OF COURSE, BEYOND QUESTION.  SEE
TRAINMEN, SUPRA, AT 6.  BUT IT IS EQUALLY APPARENT THAT BROAD RULES
FRAMED TO PROTECT THE PUBLIC AND TO PRESERVE RESPECT FOR THE
ADMINISTRATION OF JUSTICE CAN IN THEIR ACTUAL OPERATION SIGNIFICANTLY
IMPAIR THE VALUE OF ASSOCIATIONAL FREEDOMS.  THUS IN BUTTON, SUPRA, WE
DEALT WITH A PLAN UNDER WHICH THE NAACP NOT ONLY ADVISED PROSPECTIVE
LITIGANTS TO SEEK THE ASSISTANCE OF PARTICULAR ATTORNEYS BUT IN MANY
INSTANCES ACTUALLY PAID THE ATTORNEYS ITSELF.  WE HELD THE DANGERS OF
BASELESS LITIGATION AND CONFLICTING INTERESTS BETWEEN THE ASSOCIATION
AND INDIVIDUAL LITIGANTS FAR TOO SPECULATIVE TO JUSTIFY THE BROAD
REMEDY INVOKED BY THE STATE, A REMEDY THAT WOULD HAVE SERIOUSLY
CRIPPLED THE EFFORTS OF THE NAACP TO VINDICATE THE RIGHTS OF ITS
MEMBERS IN COURT.  LIKEWISE IN THE TRAINMEN CASE THERE WAS A
THEORETICAL POSSIBILITY THAT THE UNION'S INTERESTS WOULD DIVERGE FROM
THAT OF THE INDIVIDUAL LITIGANT MEMBERS, AND THERE WAS A FURTHER
POSSIBILITY THAT IF THIS DIVERGENCE EVER OCCURRED, THE UNION'S POWER TO
CUT OFF THE ATTORNEY'S REFERRAL BUSINESS COULD INDUCE THE ATTORNEY TO
SACRIFICE THE INTERESTS OF HIS CLIENT.  AGAIN WE RULED THAT THIS VERY
DISTANT POSSIBILITY OF HARM COULD NOT JUSTIFY A COMPLETE PROHIBITION OF
THE TRAINMEN'S EFFORTS TO AID ONE ANOTHER IN ASSURING THAT EACH INJURED
MEMBER WOULD BE JUSTLY COMPENSATED FOR HIS INJURIES. 

WE THINK THAT BOTH THE BUTTON AND TRAINMEN CASES ARE CONTROLLING
HERE.  THE LITIGATION IN QUESTION IS, OF COURSE, NOT BOUND UP WITH
POLITICAL MATTERS OF ACUTE SOCIAL MOMENT, AS IN BUTTON, BUT THE FIRST
AMENDMENT DOES NOT PROTECT SPEECH AND ASSEMBLY ONLY TO THE EXTENT IT
CAN BE CHARACTERIZED AS POLITICAL.  "GREAT SECULAR CAUSES, WITH SMALL
ONES, ARE GUARDED.  THE GRIEVANCES FOR REDRESS OF WHICH THE RIGHT OF
PETITION WAS INSURED, AND WITH IT THE RIGHT OF ASSEMBLY, ARE NOT SOLELY
RELIGIOUS OR POLITICAL ONES.  AND THE RIGHTS OF FREE SPEECH AND A FREE
PRESS ARE NOT CONFINED TO ANY FIELD OF HUMAN INTEREST."  THOMAS V.
COLLINS, SUPRA, AT 531.  AND OF COURSE IN TRAINMEN, WHERE THE
LITIGATION IN QUESTION WAS, AS HERE, SOLELY DESIGNED TO COMPENSATE THE
VICTIMS OF INDUSTRIAL ACCIDENTS, WE REJECTED THE CONTENTION MADE IN
DISSENT, SEE 377 U.S., AT 10 (CLARK, J.), THAT THE PRINCIPLES ANNOUNCED
IN BUTTON WERE APPLICABLE ONLY TO LITIGATION FOR POLITICAL PURPOSES. 
SEE 377 U.S., AT 8. 

NOR CAN THE CASE AT BAR BE DISTINGUISHED FROM THE TRAINMEN CASE IN ANY
PERSUASIVE WAY.  (FN5) HERE, TO BE SURE, THE ATTORNEY IS ACTUALLY PAID
BY THE UNION, NOT MERELY THE BENEFICIARY OF ITS RECOMMENDATIONS.  BUT
IN BOTH SITUATIONS THE ATTORNEY'S ECONOMIC WELFARE IS DEPENDENT TO A
CONSIDERABLE EXTENT ON THE GOOD WILL OF THE UNION, AND IF THE
TEMPTATION TO SACRIFICE THE CLIENT'S BEST INTERESTS IS STRONGER IN THE
PRESENT SITUATION, IT IS STRONGER TO A VIRTUALLY IMPERCEPTIBLE DEGREE. 
IN BOTH CASES, THERE WAS ABSOLUTELY NO INDICATION THAT THE
THEORETICALLY IMAGINABLE DIVERGENCE BETWEEN THE INTERESTS OF UNION AND
MEMBER EVER ACTUALLY AROSE IN THE CONTEXT OF A PARTICULAR LAWSUIT;
INDEED IN THE PRESENT CASE THE ILLINOIS SUPREME COURT ITSELF DESCRIBED
THE POSSIBILITY OF CONFLICTING INTERESTS AS, AT MOST, "CONCEIVABLE." 

IT HAS BEEN SUGGESTED THAT THE UNION COULD ACHIEVE ITS GOALS BY
REFERRING MEMBERS TO A SPECIFIC LAWYER OR LAWYERS AND THEN REIMBURSING
THE MEMBERS OUT OF A COMMON FUND FOR LEGAL FEES PAID.  ALTHOUGH A
COMMITTEE OF THE AMERICAN BAR ASSOCIATION, IN AN INFORMAL OPINION, MAY
HAVE APPROVED SUCH AN ARRANGEMENT, (FN6) WE THINK THE VIEW OF THE
ILLINOIS SUPREME COURT IS MORE RELEVANT ON THIS POINT.  IN THE PRESENT
CASE ITSELF THE ILLINOIS COURT STRESSED THAT WHERE A UNION RECOMMENDS
ATTORNEYS TO ITS MEMBERS, "ANY 'FINANCIAL CONNECTION OF ANY KIND'"
BETWEEN THE UNION AND SUCH ATTORNEYS IS ILLEGAL.  (FN7)  IT CANNOT
SERIOUSLY BE ARGUED, THEREFORE, THAT THIS ALTERNATIVE ARRANGEMENT WOULD
BE HELD PROPER UNDER THE LAWS OF ILLINOIS. 

THE DECREE AT ISSUE HERE THUS SUBSTANTIALLY IMPAIRS THE ASSOCIATIONAL
RIGHTS OF THE MINE WORKERS AND IS NOT NEEDED TO PROTECT THE STATE'S
INTEREST IN HIGH STANDARDS OF LEGAL ETHICS.  IN THE MANY YEARS THE
PROGRAM HAS BEEN IN OPERATION, THERE HAS COME TO LIGHT, SO FAR AS WE
ARE AWARE, NOT ONE SINGLE INSTANCE OF ABUSE, OF HARM TO CLIENTS, OF ANY
ACTUAL DISADVANTAGE TO THE PUBLIC OR TO THE PROFESSION, RESULTING FROM
THE MERE FACT OF THE FINANCIAL CONNECTION BETWEEN THE UNION AND THE
ATTORNEY WHO REPRESENTS ITS MEMBERS.  SINCE THE OPERATIVE PORTION OF
THE DECREE PROHIBITS ANY FINANCIAL CONNECTION BETWEEN THE ATTORNEY AND
THE UNION, THE DECREE CANNOT STAND; AND TO THE EXTENT ANY OTHER PART OF
THE DECREE FORBIDS THIS ARRANGEMENT IT TOO MUST FALL. 

THE JUDGMENT AND DECREE ARE VACATED AND THE CASE IS REMANDED FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  IN ADDITION TO THE PORTION JUST QUOTED, THE COURT'S DECREE
ENJOINS THE UNION FROM: 

"1.  GIVING LEGAL COUNSEL AND ADVICE. 

"2.  RENDERING LEGAL OPINIONS. 

"3.  REPRESENTING ITS MEMBERS WITH RESPECT TO WORKMEN'S COMPENSATION
CLAIMS AND ANY AND ALL OTHER CLAIMS WHICH THEY MAY HAVE UNDER THE LAWS
AND STATUTES OF THE STATE OF ILLINOIS. 

"4.  (QUOTED ABOVE). 

"5.  PRACTICING LAW IN ANY FORM EITHER DIRECTLY OR INDIRECTLY." 

IT IS CONCEDED THAT THE UNION'S EMPLOYMENT OF AN ATTORNEY WAS THE
BASIS FOR THESE OTHER PROVISIONS OF THE INJUNCTION, AND IT WAS NOT
CLAIMED THAT THE UNION WAS OTHERWISE ENGAGED IN THE PRACTICE OF LAW. 
OUR OPINION AND HOLDING IS THEREFORE LIMITED TO THIS ONE ASPECT OF THE
UNION'S ACTIVITIES.    FN2  ILL. REV. STAT., C. 48, SEC. 138.1 ET SEQ.
(1963). 

FN3  THE UNION'S PRESENT ATTORNEY, WHO WAS THE ONLY WITNESS ON THIS
MATTER, TESTIFIED THAT THE APPLICATION TO BE FILED WITH THE INDUSTRIAL
COMMISSION WAS DICTATED BY HIM TO THE SECRETARIES, WHO PREPARED THIS
FORM UNDER HIS DIRECTION.  R. 18, 40.  SEE ALSO R. 58 (UNION'S ANSWERS
TO INTERROGATORIES). 

FN4  THE FREEDOMS PROTECTED AGAINST FEDERAL ENCROACHMENT BY THE FIRST
AMENDMENT ARE ENTITLED UNDER THE FOURTEENTH AMENDMENT TO THE SAME
PROTECTION FROM INFRINGEMENT BY THE STATES.  SEE, E.G., NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S. 254, 276-277 (1964), AND CASES THERE CITED. 

FN5  IT IS IRRELEVANT THAT THE LITIGATION IN TRAINMEN INVOLVED
STATUTORY RIGHTS CREATED BY CONGRESS, WHILE THE LITIGATION IN THE
PRESENT CASE INVOLVED STATE-CREATED RIGHTS.  OUR HOLDING IN TRAINMEN
WAS BASED NOT ON STATE INTERFERENCE WITH A FEDERAL PROGRAM IN VIOLATION
OF THE SUPREMACY CLAUSE BUT RATHER ON PETITIONER'S FREEDOM OF SPEECH,
PETITION, AND ASSEMBLY UNDER THE FIRST AND FOURTEENTH AMENDMENTS, AND
THIS FREEDOM IS, OF COURSE, AS EXTENSIVE WITH RESPECT TO ASSEMBLY AND
DISCUSSION RELATED TO MATTERS OF LOCAL AS TO MATTERS OF FEDERAL
CONCERN. 

FN6  AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON PROFESSIONAL
ETHICS, INFORMAL OPINION NO. 469 (DECEMBER 26, 1961).  THE ABA
COMMITTEE DID NOT IN FACT CONSIDER THE PROBLEM PRESENTED WHERE THE
UNION NOT ONLY PAYS THE FEE BUT ALSO RECOMMENDS THE SPECIFIC ATTORNEY,
AND IT STRONGLY IMPLIED THAT IT WOULD REACH A DIFFERENT RESULT IN SUCH
A SITUATION:  "THERE IS NOTHING UNETHICAL IN THE SITUATIONS WHICH YOU
DESCRIBE SO LONG AS THE PARTICIPATION OF THE EMPLOYER, ASSOCIATION OR
UNION IS CONFINED TO PAYMENT OF OR REIMBURSEMENT FOR LEGAL EXPENSES
ONLY." 

FN7  35 ILL. 2D 112, 118, 219 N.E.2D 503, 506 (1966), QUOTING IN RE
BROTHERHOOD OF R.R.  TRAINMEN, 13 ILL. 2D 391, 150 N.E.2D 163 (1958). 

MR. JUSTICE STEWART CONCURS IN THE RESULT UPON THE SOLE GROUND THAT
THE DISPOSITION OF THIS CASE IS CONTROLLED BY RAILROAD TRAINMEN V.
VIRGINIA BAR, 377 U.S. 1. 

MR. JUSTICE HARLAN, DISSENTING. 

THIS DECISION CUTS DEEPLY INTO ONE OF THE MOST TRADITIONAL OF STATE
CONCERNS, THE MAINTENANCE OF HIGH STANDARDS WITHIN THE STATE LEGAL
PROFESSION.  I FIND MYSELF UNABLE TO SUBSCRIBE TO IT. 

THE CANONS OF PROFESSIONAL ETHICS OF THE ILLINOIS STATE BAR
ASSOCIATION FORBID THE UNAUTHORIZED PRACTICE OF LAW BY ANY LAY AGENCY. 
(FN1)  THE ILLINOIS SUPREME COURT, ACTING IN LIGHT OF THESE CANONS AND
IN EXERCISE OF ITS COMMON-LAW POWER OF SUPERVISION OVER THE BAR, (FN2)
PROHIBITED THE UNITED MINE WORKERS OF AMERICA, DISTRICT 12, FROM
EMPLOYING A SALARIED LAWYER TO REPRESENT ITS MEMBERS IN WORKMEN'S
COMPENSATION ACTIONS BEFORE THE ILLINOIS INDUSTRIAL COMMISSION.  I DO
NOT BELIEVE THAT THIS REGULATION OF THE LEGAL PROFESSION INFRINGES UPON
THE RIGHTS OF SPEECH, PETITION, OR ASSEMBLY OF THE UNION'S MEMBERS,
ASSURED BY THE FOURTEENTH AMENDMENT. 

                                 I. 

AS I STATED AT GREATER LENGTH IN MY DISSENTING OPINION IN NAACP V.
BUTTON, 371 U.S. 415, 448, 452-455, THE FREEDOM OF EXPRESSION
GUARANTEED AGAINST STATE INTERFERENCE BY THE FOURTEENTH AMENDMENT
INCLUDES THE LIBERTY OF INDIVIDUALS NOT ONLY TO SPEAK BUT ALSO TO UNITE
TO MAKE THEIR SPEECH EFFECTIVE.  THE LATTER RIGHT ENCOMPASSES THE RIGHT
TO JOIN TOGETHER TO OBTAIN JUDICIAL REDRESS.  HOWEVER, LITIGATION IS
MORE THAN SPEECH; IT IS CONDUCT.  AND THE STATES MAY REASONABLY
REGULATE CONDUCT EVEN THOUGH IT IS RELATED TO EXPRESSION.  THE PIVOTAL
POINT IS HOW THESE COMPETING INTERESTS SHOULD BE RESOLVED IN THIS
INSTANCE. 

MY BRETHREN ARE APPARENTLY IN ACCORD.  THE MAJORITY BEGINS BY NOTING
THAT THIS ACTIVITY OF THE UNION IS RELATED TO EXPRESSION AND THEREFORE
IS OF A TYPE WHICH MAY BE SHELTERED FROM STATE REGULATION BY THE
CONSTITUTION.  BUT THE MAJORITY'S INQUIRY DOES NOT STOP THERE; IT GOES
ON TO EXAMINE THE STATE CONCERNS AND CONCLUDES THAT THE DECREE "IS NOT
NEEDED TO PROTECT THE STATE'S INTEREST IN HIGH STANDARDS OF LEGAL
ETHICS."  SEE ANTE, AT 225.  (FN3)  I AGREE, OF COURSE, WITH THIS
"BALANCING" APPROACH.  SEE, E.G., NAACP V. BUTTON, SUPRA, AT 452-455
(DISSENTING OPINION); KONIGSBERG V. CALIFORNIA BAR, 366 U.S. 36, 49-51;
TALLEY V. CALIFORNIA, 362 U.S. 60, 66 (CONCURRING OPINION).  INDEED, I
CANNOT CONCEIVE OF ANY OTHER SOUND METHOD OF ATTACKING THIS TYPE OF
PROBLEM.  FOR IF AN "ABSOLUTE" APPROACH WERE ADOPTED, AS SOME MEMBERS
OF THIS COURT HAVE FROM TIME TO TIME INSISTED SHOULD BE SO WITH "FIRST
AMENDMENT" CASES, (FN4) AND THE STATE INTEREST IN REGULATION GIVEN NO
WEIGHT, THERE WOULD BE NO APPARENT REASON WHY, FOR EXAMPLE, A GROUP
MIGHT NOT EMPLOY A LAYMAN TO REPRESENT ITS MEMBERS IN COURT OR BEFORE
AN AGENCY BECAUSE IT FELT THAT HIS LOW FEE MADE UP FOR HIS DEFICIENCIES
IN LEGAL KNOWLEDGE.  CF. HACKIN V. ARIZONA, ANTE, P. 143 (DOUGLAS, J.,
DISSENTING). 

                      II. 

ALTHOUGH I AGREE WITH THE BALANCING APPROACH EMPLOYED BY THE
MAJORITY, I FIND THE SCALES TIP DIFFERENTLY.  I BELIEVE THAT THE
MAJORITY HAS WEIGHED THE COMPETING INTERESTS BADLY, ACCORDING TOO MUCH
FORCE TO THE CLAIMS OF THE UNION AND TOO LITTLE TO THOSE OF THE PUBLIC
INTEREST AT STAKE.  AS INDICATED PREVIOUSLY, THE INTEREST OF THE UNION
STEMS FROM ITS MEMBERS' CONSTITUTIONALLY PROTECTED RIGHT TO SEEK
REDRESS IN THE COURTS OR, AS HERE, BEFORE AN AGENCY.  BY THE PLAN AT
ISSUE, THE UNION HAS SOUGHT TO MAKE IT EASIER FOR MEMBERS TO OBTAIN
BENEFITS UNDER THE ILLINOIS WORKMEN'S COMPENSATION ACT.  (FN5)  THE
PLAN IS EVIDENTLY DESIGNED TO HELP INJURED UNION MEMBERS IN THREE WAYS:
(1) BY ASSURING THAT THEY WILL HAVE KNOWLEDGE OF AND ACCESS TO AN
ATTORNEY CAPABLE OF HANDLING THEIR CLAIMS; (2) BY GUARANTEEING THAT
THEY WILL NOT BE CHARGED EXCESSIVE LEGAL FEES; AND (3) BY PROTECTING
THEM FROM CRIPPLING, EVEN THOUGH REASONABLE, FEES BY MAKING LEGAL COSTS
PAYABLE COLLECTIVELY THROUGH UNION DUES.  THESE ARE LEGITIMATE AND
LAUDABLE GOALS.  HOWEVER, THE UNION PLAN IS BY NO MEANS NECESSARY FOR
THEIR ACHIEVEMENT.  THEY ALL MAY BE REALIZED BY METHODS WHICH ARE
PROPER UNDER THE LAWS OF ILLINOIS. 

THE ILLINOIS SUPREME COURT IN THIS CASE REPEATED ITS STATEMENT IN A
PRIOR CASE THAT A UNION MAY PROPERLY MAKE KNOWN TO ITS MEMBERS THE
NAMES OF ATTORNEYS IT DEEMS CAPABLE OF HANDLING PARTICULAR TYPES OF
CLAIMS.  (FN6)  SUCH UNION NOTIFICATION WOULD SERVE TO ASSURE UNION
MEMBERS OF ACCESS TO COMPETENT LAWYERS. 

AS REGARDS THE PROTECTION OF UNION MEMBERS AGAINST THE CHARGING OF
UNREASONABLE FEES, A FULLY EFFICIENT SAFEGUARD WOULD SEEM TO BE FOUND
IN THE ILLINOIS WORKMEN'S COMPENSATION ACT ITSELF.  AN AMENDMENT TO THE
ACT IN 1915, SHORTLY AFTER ITS INITIAL PASSAGE, (FN7) PROVIDED THAT THE
INDUSTRIAL COMMISSION: 

"SHALL HAVE THE POWER TO DETERMINE THE REASONABLENESS AND FIX THE
AMOUNT OF ANY FEE OR COMPENSATION CHARGED BY ANY PERSON FOR ANY SERVICE
PERFORMED IN CONNECTION WITH THIS ACT, OR FOR WHICH PAYMENT IS TO BE
MADE UNDER THIS ACT OR RENDERED IN SECURING ANY RIGHT UNDER THIS ACT." 
(FN8)

IN 1927, THE WORDS "INCLUDING ATTORNEYS, PHYSICIANS, SURGEONS AND
HOSPITALS" WERE ADDED FOLLOWING THE PHRASE "OR COMPENSATION CHARGED BY
ANY PERSON."  (FN9)  THUS, THERE WOULD NOW APPEAR TO BE NO REASONABLE
GROUNDS FOR FEARING THAT UNION MEMBERS WILL BE SUBJECTED TO EXCESSIVE
LEGAL FEES. 

THE FINAL INTEREST SOUGHT TO BE PROMOTED BY THE PRESENT PLAN IS IN
THE COLLECTIVE PAYMENT OF LEGAL FEES.  THAT OBJECTIVE COULD PRESUMABLY
BE REALIZED BY IMPOSING ASSESSMENTS ON UNION MEMBERS FOR THE
ESTABLISHMENT OF A FUND OUT OF WHICH INJURED MEMBERS WOULD BE
REIMBURSED FOR THEIR LEGAL EXPENSES.  (FN10)  THERE IS NO REASON TO
BELIEVE THAT THIS ARRANGEMENT WOULD BE IMPROPER UNDER ILLINOIS LAW,
SINCE THE UNION'S OBLIGATION WOULD RUN ONLY TO THE MEMBER AND THERE
WOULD BE NO FINANCIAL CONNECTION BETWEEN UNION AND ATTORNEY. 

THE REGULATORY INTEREST OF THE STATE IN THIS INSTANCE IS FOUND IN THE
POTENTIAL FOR ABUSE INHERENT IN THE UNION PLAN.  THE PLAN OPERATES AS
FOLLOWS.  THE UNION EMPLOYS A LICENSED LAWYER ON A SALARY BASIS (FN11)
TO REPRESENT MEMBERS AND THEIR DEPENDENTS IN CONNECTION WITH THEIR
CLAIMS UNDER THE WORKMEN'S COMPENSATION ACT.  MEMBERS ARE TOLD THAT
THEY MAY EMPLOY OTHER ATTORNEYS IF THEY WISH.  THE ATTORNEY IS SELECTED
BY THE EXECUTIVE BOARD OF DISTRICT 12, AND THE TERMS OF EMPLOYMENT
SPECIFY THAT THE ATTORNEY'S SOLE OBLIGATION IS TO THE PERSON
REPRESENTED AND THAT THERE WILL BE NO INTERFERENCE BY THE UNION. 
INJURED UNION MEMBERS ARE FURNISHED BY THE UNION WITH A FORM WHICH
ADVISES THEM TO SEND THE FORM TO THE UNION'S LEGAL DEPARTMENT.  UPON
RECEIPT OF THE FORM, THE ATTORNEY ASSUMES IT TO CONSTITUTE A REQUEST
THAT HE FILE ON BEHALF OF THE INJURED MEMBER A CLAIM WITH THE
INDUSTRIAL COMMISSION, THOUGH NO SUCH EXPLICIT REQUEST IS CONTAINED IN
THE FORM.  THE APPLICATION FOR COMPENSATION IS PREPARED BY SECRETARIES
IN THE UNION OFFICES, AND WHEN COMPLETE IT IS SENT DIRECTLY TO THE
INDUSTRIAL COMMISSION.  IN MOST INSTANCES, THE ATTORNEY HAS NEITHER
SEEN NOR TALKED WITH THE UNION MEMBER AT THIS STAGE, THOUGH THE
ATTORNEY IS AVAILABLE FOR CONSULTATION AT SPECIFIED TIMES.  AFTER THE
FILING OF THE CLAIM AND PRIOR TO THE HEARING BEFORE THE COMMISSION, THE
ATTORNEY PREPARES FOR ITS PRESENTATION BY RESORTING TO HIS FILE AND TO
THE APPLICATION, USUALLY WITHOUT CONFERRING WITH THE INJURED MEMBER. 
ORDINARILY THE MEMBER AND THIS ATTORNEY FIRST MEET AT THE TIME OF THE
HEARING BEFORE THE COMMISSION. 

THE ATTORNEY DETERMINES WHAT HE THINKS THE CLAIM TO BE WORTH AND
ATTEMPTS TO SETTLE WITH THE EMPLOYER'S ATTORNEY DURING PREHEARING
NEGOTIATIONS.  IF AGREEMENT IS REACHED, THE ATTORNEY RECOMMENDS TO THE
INJURED MEMBER THAT HE ACCEPT THE RESULT.  IF NO SETTLEMENT OCCURS, A
HEARING ON THE MERITS IS HELD BEFORE THE INDUSTRIAL COMMISSION.  THE
FULL AMOUNT OF THE SETTLEMENT OR AWARD IS PAID TO THE INJURED MEMBER. 
THE ATTORNEY RETAINS FOR HIMSELF NO PART OF THE AMOUNT RECEIVED, HIS
SOLE COMPENSATION BEING HIS ANNUAL SALARY PAID BY THE UNION. 

THIS UNION PLAN CONTAINS FEATURES WHICH, IN MY OPINION, ILLINOIS MAY
REASONABLY CONSIDER TO PRESENT THE DANGER OF LOWERING THE QUALITY OF
REPRESENTATION FURNISHED BY THE ATTORNEY TO UNION MEMBERS IN THE
HANDLING OF THEIR CLAIMS.  THE UNION LAWYER HAS LITTLE CONTACT WITH HIS
CLIENT.  HE PROCESSES THE APPLICATIONS OF INJURED MEMBERS ON A MASS
BASIS.  EVIDENTLY, HE NEGOTIATES WITH THE EMPLOYER'S COUNSEL ABOUT MANY
CLAIMS AT THE SAME TIME.  THE STATE WAS ENTITLED TO CONCLUDE THAT,
REMOVED FROM READY CONTACT WITH HIS CLIENT, INSULATED FROM INTERFERENCE
BY HIS ACTUAL EMPLOYER, PAID A SALARY INDEPENDENT OF THE RESULTS
ACHIEVED, FACED WITH A HEAVY CASELOAD, (FN12) AND VERY POSSIBLY WITH
OTHER ACTIVITIES COMPETING FOR HIS TIME, (FN13) THE ATTORNEY WILL BE
TEMPTED TO PLACE UNDUE EMPHASIS UPON QUICK DISPOSITION OF EACH CASE. 
CONCEIVABLY, THE DESIRE TO PROCESS FORMS RAPIDLY MIGHT INFLUENCE THE
LAWYER NOT TO CHECK WITH HIS CLIENT REGARDING AMBIGUITIES OR OMISSIONS
IN THE FORM, OR TO MISS FACTS AND CIRCUMSTANCES WHICH FACE-TO-FACE
CONSULTATION WITH HIS CLIENT WOULD HAVE BROUGHT TO LIGHT.  HE MIGHT BE
LED, SO THE STATE MIGHT CONSIDER, TO COMPROMISE CASES FOR REASONS
UNRELATED TO THEIR OWN INTRINSIC MERITS, SUCH AS THE NEED TO "GET ON"
WITH NEGOTIATIONS OR A PROMISE BY THE EMPLOYER'S ATTORNEY OF
CONCESSIONS RELATING TO OTHER CASES.  THE DESIRE FOR QUICK DISPOSITION
ALSO MIGHT CAUSE THE ATTORNEY TO FORGO APPEALS IN SOME CASES IN WHICH
THE AMOUNT AWARDED SEEMED UNUSUALLY LOW.  (FN14)

                                        III. 

THUS, THERE IS SOLID SUPPORT FOR THE ILLINOIS SUPREME COURT'S
CONCLUSION THAT THE UNION PLAN PRESENTS A DANGER OF HARM TO THE PUBLIC
INTEREST IN A REGULATED BAR.  THE REASONABLENESS OF THIS RESULT IS
FURTHER BUTTRESSED BY THE NUMEROUS PRIOR DECISIONS, BOTH IN ILLINOIS
AND ELSEWHERE, IN WHICH COURTS HAVE PROHIBITED THE EMPLOYMENT OF
SALARIED ATTORNEYS BY GROUPS FOR THE BENEFIT OF THEIR MEMBERS.  (FN15) 

THE MAJORITY DISMISSES THE STATE'S INTEREST IN REGULATION BY POINTING
OUT THAT THERE HAVE BEEN NO PROVEN INSTANCES OF ABUSE OR ACTUAL
DISADVANTAGE TO UNION MEMBERS RESULTING FROM THE OPERATION OF THE UNION
PLAN.  SEE ANTE, AT 225.  BUT THE PROPER QUESTION IS NOT WHETHER THIS
PARTICULAR PLAN HAS IN FACT CAUSED ANY HARM.  (FN16)  IT IS, INSTEAD,
SETTLED THAT IN THE ABSENCE OF ANY DOMINANT OPPOSING INTEREST A STATE
MAY ENFORCE PROPHYLACTIC MEASURES REASONABLY CALCULATED TO WARD OFF
FORESEEABLE ABUSES, AND THAT THE FACT THAT A SPECIFIC ACTIVITY HAS NOT
YET PRODUCED ANY UNDESIRABLE CONSEQUENCES WILL NOT EXEMPT IT FROM
REGULATION.  SEE, E.G., HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313,
321-322; DANIEL V. FAMILY SEC. LIFE INS. CO., 336 U.S. 220, 222-225. 

IT IS ALSO IRRELEVANT WHETHER WE WOULD PROSCRIBE THE UNION PLAN WERE
WE SITTING AS STATE JUDGES OR STATE LEGISLATORS.  THE SOLE ISSUE BEFORE
US IS WHETHER THE ILLINOIS SUPREME COURT IS FORBIDDEN TO DO SO BECAUSE
THE PLAN UNDULY IMPINGES UPON RIGHTS GUARANTEED TO THE UNION'S MEMBERS
BY THE FOURTEENTH AMENDMENT.  SINCE THE FINDING THAT THE UNION PLAN
PRESENTS DANGERS TO THE PUBLIC AND LEGAL PROFESSION IS NOT AN ARBITRARY
ONE, AND SINCE THE LIMITATION UPON UNION MEMBERS IS SO SLIGHT, IN VIEW
OF THE PERMISSIBLE ALTERNATIVES STILL OPEN TO THEM, I WOULD HOLD THAT
THERE HAS BEEN NO DENIAL OF CONSTITUTIONAL RIGHTS OCCASIONED BY
ILLINOIS' PROHIBITION OF THE PLAN. 

                                          IV. 

THIS DECISION, WHICH AGAIN MANIFESTS THE PECULIAR INSENSITIVITY TO
THE NEED FOR SEEKING AN APPROPRIATE CONSTITUTIONAL BALANCE BETWEEN
FEDERAL AND STATE AUTHORITY THAT IN RECENT YEARS HAS CHARACTERIZED SO
MANY OF THE COURT'S DECISIONS UNDER THE FOURTEENTH AMENDMENT, PUTS THIS
COURT MORE DEEPLY THAN EVER IN THE BUSINESS OF SUPERVISING THE PRACTICE
OF LAW IN THE VARIOUS STATES.  FROM MY STANDPOINT, WHAT IS DONE TODAY
IS UNNECESSARY, UNDESIRABLE, AND CONSTITUTIONALLY ALL WRONG.  IN THE
ABSENCE OF DEMONSTRATED ARBITRARY OR DISCRIMINATORY REGULATION, STATE
COURTS AND LEGISLATURES SHOULD BE LEFT TO GOVERN THEIR OWN BARS, FREE
FROM INTERFERENCE BY THIS COURT.  (FN17)  NOTHING DIFFERENT ACCORDS
WITH LONGSTANDING AND UNQUESTIONED TRADITION AND WITH THE MOST
ELEMENTARY DEMANDS OF OUR FEDERAL SYSTEM.    I WOULD AFFIRM.    FN1
CANONS 35, 47, CANONS OF ETHICS OF THE ILLINOIS STATE BAR ASSOCIATION. 
THESE CANONS ARE IDENTICAL TO THE CORRESPONDING CANONS OF THE AMERICAN
BAR ASSOCIATION. 

FN2  EVEN IN THE ABSENCE OF APPLICABLE STATUTES, STATE COURTS HAVE
HELD THEMSELVES EMPOWERED TO PROMULGATE AND ENFORCE STANDARDS OF
PROFESSIONAL CONDUCT DRAWN FROM THE COMMON LAW AND THE CLOSELY RELATED
PROHIBITIONS OF THE CANONS OF ETHICS.  SEE, E.G., IN RE MACLUB OF
AMERICA, INC., 295 MASS. 45, 3 N.E.2D 272, AND CASES THEREIN CITED. 
SEE GENERALLY DRINKER, LEGAL ETHICS 26-30, 35-48. 

FN3  THIS WEIGHING OF THE COMPETING INTERESTS INVOLVED IS THE SAME
APPROACH AS THAT USED IN NAACP V. BUTTON, 371 U.S. 415, AND IN RAILROAD
TRAINMEN V. VIRGINIA BAR, 377 U.S. 1.  HOWEVER, SINCE A NEW BALANCE
MUST BE STRUCK WHENEVER THE COMPETING INTERESTS ARE SIGNIFICANTLY
DIFFERENT, THIS DECISION IS NOT CONTROLLED BY THOSE CASES.  THE UNION
MEMBERS IN THIS CASE ARE NOT ASSERTING LEGAL RIGHTS WHICH STEM EITHER
FROM THE CONSTITUTION OR FROM A FEDERAL STATUTE, SOURCES OF ORIGIN
STRESSED RESPECTIVELY IN BUTTON, SEE 371 U.S., AT 429-431, 441-444, AND
IN RAILROAD TRAINMEN, SEE 377 U.S., AT 3-6.  FURTHERMORE, THE UNION
PLAN AT ISSUE HERE DIFFERS FROM THE REFERRAL PRACTICE INVOLVED IN
RAILROAD TRAINMEN BECAUSE IT INVOLVES THE SERVICES OF A UNION-SALARIED
LAWYER. 

SIMILARLY, THE INTERESTS IN THIS CASE ARE VERY DIFFERENT FROM THOSE
IN CASES INVOLVING LEGAL AID TO THE INDIGENT.  THE SITUATION OF A
SALARIED LAWYER REPRESENTING INDIGENT CLIENTS WAS EXPRESSLY
DISTINGUISHED BY THE COURT BELOW.  SEE 35 ILL. 2D 112, 121, 219 N.E.2D
503, 508. 

FN4  SEE, E.G., LATHROP V. DONOHUE, 367 U.S. 820, 865, 871-874
(DISSENTING OPINION); KONIGSBERG V. CALIFORNIA BAR, 366 U.S. 36, 56, 60
71 (DISSENTING OPINION). 

FN5  ILL. REV. STAT., C. 48, SEC. 138.1 ET SEQ. (1963). 

FN6  SEE 35 ILL. 2D, AT 118-119, 219 N.E.2D, AT 506-507.  THE EARLIER
ILLINOIS DECISION REFERRED TO WAS IN RE BROTHERHOOD OF R.R. TRAINMEN,
13 ILL. 2D 391, 150 N.E.2D 163. 

FN7  IT MAY BE SIGNIFICANT THAT THE UNION PLAN WAS INSTITUTED IN
1913, PRIOR TO THIS AMENDMENT OF THE ACT.  SEE ANTE, AT 219. 

FN8  ILL. LAWS, 1915, P. 408. 

FN9  ILL. LAWS, 1927, P. 511. 

FN10  CF. AMERICAN BAR ASSOCIATION, COMMITTEE ON PROFESSIONAL ETHICS,
INFORMAL OPINION NO. 469 (DECEMBER 26, 1961)(UNION MAY REIMBURSE MEMBER
CLIENT FOR LEGAL EXPENSES). 

FN11  THE SALARY PAID AT THE TIME OF THIS ACTION WAS $12,400 PER
ANNUM. 

FN12  THE ATTORNEY EMPLOYED BY THE UNION IN THIS CASE HANDLED MORE
THAN 400 WORKMEN'S COMPENSATION CLAIMS A YEAR. 

FN13  THE ATTORNEY EMPLOYED BY THE MINE WORKERS WAS ALSO AN ILLINOIS
STATE SENATOR AND HAD A PRIVATE PRACTICE OTHER THAN THE MINE WORKERS'
REPRESENTATION. 

FN14  OF 351 WORKMEN'S COMPENSATION CASES, FROM ALL SOURCES, WHICH
WERE APPEALED TO THE ILLINOIS COURTS DURING THE PERIOD 1936-1967, ONLY
ONE WAS APPEALED BY A MINER AFFILIATED WITH DISTRICT 12.  NO SUCH MINER
HAS APPEALED SINCE 1942.  SEE RESPONDENTS' BRIEF, AT 17-18. 

FN15  SEE, E.G., PEOPLE EX REL. COURTNEY V. ASSOCIATION OF REAL
ESTATE TAX-PAYERS, 354 ILL. 102, 187 N.E. 823; IN RE MACLUB OF AMERICA,
INC., 295 MASS. 45, 3 N.E.2D 272, AND CASES THEREIN CITED; RICHMOND
ASSN. OF CREDIT MEN, INC. V. BAR ASSN. OF RICHMOND, 167 VA.  327, 189
S.E. 153.  THE CANONS OF ETHICS OF THE AMERICAN BAR ASSOCIATION HAVE
ALSO BEEN INTERPRETED AS FORBIDDING ARRANGEMENTS OF THE KIND AT ISSUE
HERE.  SEE AMERICAN BAR ASSOCIATION, COMMITTEE ON UNAUTHORIZED PRACTICE
OF THE LAW, INFORMATIVE OPINION NO. A OF 1950, 36 A.B.A.J. 677. 

FN16  IT IS POSSIBLE THAT THE OPERATION OF THE PLAN DID RESULT IN
UNION MEMBERS RECEIVING A LOWER QUALITY OF LEGAL REPRESENTATION THAN
THEY OTHERWISE WOULD HAVE HAD.  FOR EXAMPLE, THE MINE WORKERS' PRESENT
ATTORNEY RECOVERED AN AVERAGE OF $1,160 PER CASE, WHILE HIS PREDECESSOR
SECURED AN AVERAGE OF $1,350, EVEN THOUGH THE PERMISSIBLE RATES OF
RECOVERY WERE LOWER DURING THE PREDECESSOR'S TENURE.   SEE RECORD, AT
53-54, 58-60; BRIEF FOR RESPONDENTS 18.  SEE ALSO N. 14, SUPRA. 

FN17  IT HAS BEEN SUGGESTED BOTH IN THIS CASE AND ELSEWHERE, CF.
HACKIN V. ARIZONA, ANTE, P. 143 (DOUGLAS, J., DISSENTING), THAT
PREVAILING CANONS OF ETHICS AND TRADITIONAL CUSTOMS IN THE LEGAL
PROFESSION WILL HAVE TO BE MODIFIED TO KEEP PACE WITH THE NEEDS OF NEW
SOCIAL DEVELOPMENTS, SUCH AS THE FEDERAL POVERTY PROGRAM.  THAT MAY
WELL BE TRUE, BUT SUCH CONSIDERATIONS FURNISH NO JUSTIFICATION FOR
TODAY'S HEAVY-HANDED ACTION BY THE COURT.  THE AMERICAN BAR ASSOCIATION
AND OTHER BODIES THROUGHOUT THE COUNTRY ALREADY HAVE SUCH MATTERS UNDER
CONSIDERATION.  SEE, E.G., 1964 ABA REPORTS 381-383 (ESTABLISHMENT OF
SPECIAL COMMITTEE ON ETHICAL STANDARDS); 1966 ABA REPORTS 589-594
(REPORT OF SPECIAL COMMITTEE ON AVAILABILITY OF LEGAL SERVICES); 39
CALIF. STATE BAR JOURNAL 639-742 (REPORT OF COMMITTEE ON GROUP LEGAL
SERVICES).  MOREOVER, THE COMPLEXITY OF THESE MATTERS MAKES THEM
ESPECIALLY SUITABLE FOR EXPERIMENTATION AT THE LOCAL LEVEL.  AND, ALL
ELSE FAILING, THE CONGRESS UNDOUBTEDLY HAS THE POWER TO IMPLEMENT
FEDERAL PROGRAMS BY ESTABLISHING OVERRIDING RULES GOVERNING LEGAL
REPRESENTATION IN CONNECTION THEREWITH. 
..END :




















NASH V. FLORIDA INDUSTRIAL COMM'N. 389 U.S. 235 


NO. 48.  ARGUED NOVEMBER 9, 1967.  - DECIDED DECEMBER 5, 1967.  - 191
SO. 2D 99, REVERSED. 


FLORIDA'S UNEMPLOYMENT COMPENSATION LAW, AS APPLIED BY THE STATE
INDUSTRIAL COMMISSION'S HOLDING THAT PETITIONER WAS DISQUALIFIED FOR
UNEMPLOYMENT COMPENSATION SOLELY BECAUSE SHE FILED AN UNFAIR LABOR
PRACTICE CHARGE WITH THE NATIONAL LABOR RELATIONS BOARD, HELD INVALID
AS VIOLATING THE SUPREMACY CLAUSE OF THE CONSTITUTION BECAUSE IT
FRUSTRATES ENFORCEMENT OF THE NATIONAL LABOR RELATIONS ACT.  PP. 238
240. 

NASH V. FLORIDA INDUSTRIAL COMMISSION ET AL. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD
DISTRICT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AMENDED, 29 U.S.C. SEC.  160, AUTHORIZES THE NATIONAL LABOR RELATIONS
BOARD TO INITIATE UNFAIR LABOR PRACTICE PROCEEDINGS WHENEVER SOME
PERSON CHARGES THAT ANOTHER PERSON HAS COMMITTED SUCH PRACTICES.  THE
BOARD CANNOT START A PROCEEDING WITHOUT SUCH A CHARGE BEING FILED WITH
IT.  SEE, E.G., NATIONAL LABOR RELATIONS BOARD V. NATIONAL LICORICE
CO., 104 F.2D 655 (C.A.2D CIR.), MODIFIED ON OTHER GROUNDS, 309 U.S.
350; LOCAL 138, OPERATING ENGINEERS (SKURA), 148 N.L.R.B. 679, 681. 
THE CRUCIAL QUESTION PRESENTED HERE IS WHETHER A STATE CAN REFUSE TO
PAY ITS UNEMPLOYMENT INSURANCE TO PERSONS SOLELY BECAUSE THEY HAVE
PREFERRED UNFAIR LABOR PRACTICE CHARGES AGAINST THEIR FORMER EMPLOYER. 

THE FACTS ARE STIPULATED AND NEED NOT BE STATED AT LENGTH.  THE
PETITIONER, MRS. NASH, WHO PREVIOUSLY HAD BEEN OUT ON STRIKE AGAINST
HER EMPLOYER, THE STANLEY WORKS AND STANLEY BUILDING SPECIALTIES, WAS,
PURSUANT TO UNION-MANAGEMENT AGREEMENT, REINSTATED TO HER FORMER JOB ON
APRIL 14, 1965.  APPROXIMATELY FIVE WEEKS LATER, ON MAY 16, 1965, SHE
WAS LAID OFF BY THE COMPANY BECAUSE OF ALLEGED "SLOW PRODUCTION,"
MEANING THAT THE COMPANY HAD INSUFFICIENT WORK TO WARRANT HER
RETENTION.  MRS. NASH WAS UNEMPLOYED FROM THIS TIME UNTIL OCTOBER 5,
1965, WHEN THE COMPANY VOLUNTARILY CALLED HER BACK TO WORK.  SHE HAS
BEEN ALLOWED UNEMPLOYMENT COMPENSATION, UNDER FLORIDA STATUTES, CHAPTER
443, FROM THE TIME OF HER DISCHARGE ON MAY 16, UP TO JUNE 17, BUT
DENIED ANY COMPENSATION FROM JUNE 17 TO OCTOBER 5.  THE REASON GIVEN
FOR THIS DENIAL WAS THAT ON JUNE 17 SHE FILED AN UNFAIR LABOR PRACTICE
CHARGE AGAINST HER EMPLOYER SEEKING REINSTATEMENT AND BACK PAY ON THE
GROUND THAT THE EMPLOYER HAD ACTUALLY LAID HER OFF BECAUSE OF HER UNION
ACTIVITIES IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT, AND THAT
THIS CHARGE WAS STILL PENDING ON OCTOBER 5 WHEN SHE RESUMED WORK.  IN
MAKING THIS RULING THE FLORIDA INDUSTRIAL COMMISSION RELIED ON SEC.
443.06 OF THE FLORIDA UNEMPLOYMENT COMPENSATION LAW WHICH PROVIDES: 

"AN INDIVIDUAL SHALL BE DISQUALIFIED FOR UNEMPLOYMENT BENEFITS  ...
.  (4) FOR ANY WEEK WITH RESPECT TO WHICH THE COMMISSION FINDS THAT HIS
TOTAL OR PARTIAL UNEMPLOYMENT IS DUE TO A LABOR DISPUTE IN ACTIVE
PROGRESS WHICH EXISTS AT THE FACTORY, ESTABLISHMENT OR OTHER PREMISES
AT WHICH HE IS OR WAS LAST EMPLOYED  ...  ." 

THE COMMISSION HELD THAT THE FILING OF THE UNFAIR LABOR PRACTICE
CHARGE BROUGHT PETITIONER WITHIN THE WORDING OF THE ACT IN THAT HER
"UNEMPLOYMENT" THEN BECAME "DUE TO A LABOR DISPUTE."  THUS THE SOLE
REASON THAT PETITIONER WAS DISQUALIFIED FROM COMPENSATION WAS THAT SHE
FILED AN UNFAIR LABOR PRACTICE CHARGE.  ACCORDING TO THE COMMISSION,
THE ACT OF FILING WAS THE DETERMINATIVE FACTOR UNDER FLORIDA LAW WHICH
RENDERED PETITIONER INELIGIBLE FOR UNEMPLOYMENT COMPENSATION.  THE
DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, DENIED PER CURIAM
PETITIONER'S APPLICATION FOR WRIT OF CERTIORARI TO REVIEW THE
DETERMINATIONS OF THE FLORIDA INDUSTRIAL COMMISSION UNEMPLOYMENT
COMPENSATION BOARD OF REVIEW.  SINCE SUCH DENIAL BY THE FLORIDA
DISTRICT COURT OF APPEAL APPARENTLY PRECLUDES FURTHER STATE REVIEW,
(FN1) WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANT CONSTITUTIONAL
QUESTION INVOLVED, SPECIFICALLY WHETHER THE COMMISSION'S RULING
VIOLATES THE SUPREMACY CLAUSE OF THE CONSTITUTION (ART. VI, CL. 2)
BECAUSE IT ALLEGEDLY "FRUSTRATES" ENFORCEMENT OF THE NATIONAL LABOR
RELATIO STAT. 449, 29 U.S.C. SEC. 151 ET SEQ. (FN2) 

THE NATIONAL LABOR RELATIONS ACT IS A COMPREHENSIVE CODE PASSED BY
CONGRESS TO REGULATE LABOR RELATIONS IN ACTIVITIES AFFECTING INTERSTATE
AND FOREIGN COMMERCE.  AS SUCH IT IS OF COURSE THE LAW OF THE LAND
WHICH NO STATE LAW CAN MODIFY OR REPEAL.  IMPLEMENTATION OF THE ACT IS
DEPENDENT UPON THE INITIATIVE OF INDIVIDUAL PERSONS WHO MUST, AS
PETITIONER HAS DONE HERE, INVOKE ITS SANCTIONS THROUGH FILING AN UNFAIR
LABOR PRACTICE CHARGE.  (FN3)  CONGRESS HAS MADE IT CLEAR THAT IT
WISHES ALL PERSONS WITH INFORMATION ABOUT SUCH PRACTICES TO BE
COMPLETELY FREE FROM COERCION AGAINST REPORTING THEM TO THE BOARD. 
THIS IS SHOWN BY ITS ADOPTION OF SEC. 8(A)(4) WHICH MAKES IT AN UNFAIR
LABOR PRACTICE FOR AN EMPLOYER TO DISCRIMINATE AGAINST AN EMPLOYEE
BECAUSE HE HAS FILED CHARGES.  SEE JOHN HANCOCK MUTUAL LIFE INSURANCE
CO. V. NATIONAL LABOR RELATIONS BOARD, 89 U.S. APP. D.C. 261, 263-264,
191 F.2D 483, 485-486; NATIONAL LABOR RELATIONS BOARD V. LAMAR CREAMERY
CO., 246 F.2D 8, 9-10 (C.A. 5TH CIR.); NATIONAL LABOR RELATIONS BOARD
V. SYRACUSE STAMPING CO., 208 F.2D 77, 80 (C.A.2D CIR.).  AND IT HAS
BEEN HELD THAT IT IS UNLAWFUL FOR AN EMPLOYER TO SEEK TO RESTRAIN AN
EMPLOYEE IN THE EXERCISE OF HIS RIGHT TO FILE CHARGES.  NATIONAL LABOR
RELATIONS BOARD V. CLEARFIELD CHEESE CO., 213 F.2D 70 (C.A. 3D CIR.);
NATIONAL LABOR RELATIONS BOARD V. GIBBS CORP., 308 F.2D 247 (C.A. 5TH
CIR.); ROBERTS V. NATIONAL LABOR RELATIONS BOARD, 121 U.S. APP. D.C.
297, 350 F.2D 427. 

WE HAVE NO DOUBT THAT COERCIVE ACTIONS WHICH THE ACT FORBIDS
EMPLOYERS AND UNIONS TO TAKE AGAINST PERSONS MAKING CHARGES ARE
LIKEWISE PROHIBITED FROM BEING TAKEN BY THE STATES.  THE ACTION OF
FLORIDA HERE, LIKE THE COERCIVE ACTIONS WHICH EMPLOYERS AND UNIONS ARE
FORBIDDEN TO ENGAGE IN, HAS A DIRECT TENDENCY TO FRUSTRATE THE PURPOSE
OF CONGRESS TO LEAVE PEOPLE FREE TO MAKE CHARGES OF UNFAIR LABOR
PRACTICES TO THE BOARD.  FLORIDA HAS APPLIED ITS UNEMPLOYMENT
COMPENSATION LAW SO THAT AN EMPLOYEE WHO BELIEVES HE HAS BEEN WRONGLY
DISCHARGED HAS TWO CHOICES:  (1) HE MAY KEEP QUIET AND RECEIVE
UNEMPLOYMENT COMPENSATION UNTIL HE FINDS A NEW JOB OR (2) HE MAY FILE
AN UNFAIR LABOR PRACTICE CHARGE, THUS UNDER FLORIDA PROCEDURE
SURRENDERING HIS RIGHT TO UNEMPLOYMENT COMPENSATION, AND RISK FINANCIAL
RUIN IF THE LITIGATION IS PROTRACTED.  EVEN THE HOPE OF A FUTURE AWARD
OF BACK PAY MAY MEAN LITTLE TO A MAN OF MODEST MEANS AND HEAVY
RESPONSIBILITIES FACED WITH THE IMMEDIATE SEVERANCE OF SUSTAINING
FUNDS.  IT APPEARS OBVIOUS TO US THAT THIS FINANCIAL BURDEN WHICH
FLORIDA IMPOSES WILL IMPEDE RESORT TO THE ACT AND THWART CONGRESSIONAL
RELIANCE ON INDIVIDUAL ACTION.  A NATIONAL SYSTEM FOR THE
IMPLEMENTATION OF THIS COUNTRY'S LABOR POLICIES IS NOT SO DEPENDENT ON
STATE LAW.  FLORIDA SHOULD NOT BE PERMITTED TO DEFEAT OR HANDICAP A
VALID NATIONAL OBJECTIVE BY THREATENING TO WITHDRAW STATE BENEFITS FROM
PERSONS SIMPLY BECAUSE THEY COOPERATE WITH THE GOVERNMENT'S
CONSTITUTIONAL PLAN.  (FN4) 

IN HOLDING THAT THIS FLORIDA LAW AS APPLIED IN THIS CASE CONFLICTS
WITH THE SUPREMACY CLAUSE OF THE CONSTITUTION WE BUT FOLLOW THE
UNBROKEN RULE THAT HAS COME DOWN THROUGH THE YEARS. 

IN MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 436, DECIDED IN 1819, THIS
COURT DECLARED THE STATES DEVOID OF POWER "TO RETARD, IMPEDE, BURDEN,
OR IN ANY MANNER CONTROL, THE OPERATIONS OF THE CONSTITUTIONAL LAWS
ENACTED BY CONGRESS TO CARRY INTO EXECUTION THE POWERS VESTED IN THE
GENERAL GOVERNMENT."  IN DAVIS V. ELMIRA SAVINGS BANK, 161 U.S. 275,
DECIDED IN 1896, THIS COURT DECLARED THAT A STATE LAW CANNOT STAND THAT
"EITHER FRUSTRATES THE PURPOSE OF THE NATIONAL LEGISLATION OR IMPAIRS
THE EFFICIENCY OF THOSE AGENCIES OF THE FEDERAL GOVERNMENT TO DISCHARGE
THE DUTIES, FOR THE PERFORMANCE OF WHICH THEY WERE CREATED."  ID., AT
283.  AND AGAIN IN HILL V. FLORIDA, 325 U.S. 538, 542-543, DECIDED IN
1945, THIS COURT STRUCK DOWN A LABOR REGULATION SAYING IT STOOD "'AS AN
OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND
OBJECTIVES OF CONGRESS  ... .'"  ID., AT 542. 

ALL OF THE CASES JUST CITED AND MANY MORE SUPPORT OUR INVALIDATION
UNDER THE SUPREMACY CLAUSE OF THE FLORIDA UNEMPLOYMENT COMPENSATION LAW
AS HERE APPLIED.  REVERSED. 

FN1  THE FLORIDA SUPREME COURT SEEMS TO HAVE DECIDED THAT IT LACKS
JURISDICTION BY APPEAL TO CONSIDER PER CURIAM DENIALS OF CERTIORARI BY
THE FLORIDA DISTRICT COURT OF APPEAL.  CALLENDAR V. STATE, 181 SO. 2D
529.  WHILE IT IS TRUE THAT A DISTRICT COURT OF APPEAL MAY CERTIFY A
QUESTION "OF GREAT PUBLIC INTEREST" TO THE FLORIDA SUPREME COURT, THIS
IS DONE UPON THE DISTRICT COURT OF APPEAL'S OWN MOTION, AND ALTHOUGH
LITIGANTS MAY FILE A SUGGESTION THAT A PARTICULAR QUESTION BE
CERTIFIED, SUCH SUGGESTION HAS BEEN DECLARED TO HAVE "NO LEGAL
EFFECT."  SEE WHITAKER V. JACKSONVILLE EXPRESSWAY AUTHORITY, 131 SO. 2D
22 (1ST D.C. APP.  FLA. 1961).  THUS, IT IS IMPOSSIBLE FOR US TO SAY
THAT UNDER FLORIDA LAW PETITIONER HERE HAD ANY RIGHT TO CALL UPON THE
STATE SUPREME COURT FOR REVIEW.  IN THESE CIRCUMSTANCES, WE THEREFORE
ARE UNABLE TO SAY THAT THE DISTRICT COURT OF APPEAL WAS NOT THE HIGHEST
COURT IN FLORIDA WHEREIN A DECISION COULD BE HAD AS REQUIRED BY 28
U.S.C. SEC. 1257(3). 

FN2  BECAUSE OF OUR DISPOSITION OF THE CASE ON SUPREMACY CLAUSE
GROUNDS, WE NEED NOT CONSIDER PETITIONER'S ALTERNATIVE ARGUMENT THAT
SUCH RULING VIOLATES HER PRIVILEGES AND IMMUNITIES OF UNITED STATES
CITIZENSHIP IN CONTRAVENTION OF THE FOURTEENTH AMENDMENT. 

FN3  ALTHOUGH SEC. 10(A) OF THE ACT EMPOWERS THE BOARD TO PREVENT
UNFAIR LABOR PRACTICES, AND THUS TO PROTECT THE EMPLOYEE'S SEC. 7
RIGHTS, SEC. 10(B) CONDITIONS THE EXERCISE OF THAT POWER ON THE FILING
OF CHARGES; THE BOARD CANNOT INITIATE ITS OWN PROCESSES. 

FN4  RESPONDENTS SUGGEST THAT PETITIONER MIGHT ENJOY A WINDFALL IF
SHE WAS PAID COMPENSATION AND WAS SUBSEQUENTLY AWARDED BACK PAY BY THE
LABOR BOARD.  THIS ARGUMENT IS UNRESPONSIVE TO THE ISSUE IN DISPUTE,
HOWEVER, SINCE A STATE IS FREE TO RECOUP COMPENSATION PAYMENTS MADE
DURING ANY PERIOD COVERED BY A BACK-PAY AWARD.  SEE NATIONAL LABOR
RELATIONS BOARD V. GULLETT GIN CO., 340 U.S. 361, 365, N. 1. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



ZWICKLER V. KOOTA 389 U.S. 241 


NO. 29.  ARGUED OCTOBER 12, 1967.  - DECIDED DECEMBER 5, 1967.  - 261 F.
SUPP. 985, REVERSED AND REMANDED. 


REVERSAL ON STATE LAW GROUNDS OF APPELLANT'S CONVICTION OF VIOLATING A
NEW YORK STATUTE BY DISTRIBUTING ANONYMOUS POLITICAL HANDBILLS WAS
AFFIRMED BY THE STATE'S HIGHEST COURT.  THEREAFTER APPELLANT, INVOKING
FEDERAL JURISDICTION UNDER THE CIVIL RIGHTS ACT AND THE DECLARATORY
JUDGMENT ACT, SOUGHT IN THE DISTRICT COURT DECLARATORY RELIEF AND AN
INJUNCTION AGAINST FUTURE CRIMINAL PROSECUTIONS FOR VIOLATING THE
STATUTE, CLAIMING THAT, ON ITS FACE, THE STATUTE CONTRAVENED THE FIRST
AMENDMENT BY ITS "OVERBREADTH."  A THREE-JUDGE COURT APPLIED THE
DOCTRINE OF ABSTENTION AND DISMISSED THE COMPLAINT, LEAVING THE
APPELLANT TO ASSERT HIS CONSTITUTIONAL CHALLENGE IN THE STATE COURTS
EITHER IN THE DEFENSE OF ANY CRIMINAL PROSECUTION FOR FUTURE VIOLATIONS
OF THE STATUTE OR BY WAY OF A DECLARATORY JUDGMENT ACTION.  THE COURT
HELD THAT ABSTENTION FROM RULING ON THE DECLARATORY JUDGMENT ISSUE WAS
WARRANTED BECAUSE APPELLANT HAD MADE NO SPECIAL SHOWING OF THE NEED FOR
AN INJUNCTION AGAINST CRIMINAL PROSECUTION.  HELD: 

1.  THE DISTRICT COURT ERRED IN REFUSING TO PASS ON APPELLANT'S CLAIM
FOR A DECLARATORY JUDGMENT AS THERE WAS NO "SPECIAL CIRCUMSTANCE"
WARRANTING ITS APPLICATION OF THE ABSTENTION DOCTRINE TO THAT CLAIM. 
PP. 245-252. 

(A)  A FEDERAL COURT HAS THE DUTY OF GIVING DUE RESPECT TO A SUITOR'S
CHOICE OF A FEDERAL FORUM FOR THE HEARING AND DECISION OF HIS FEDERAL
CONSTITUTIONAL CLAIMS AND ESCAPE FROM THAT DUTY IS NOT PERMISSIBLE
MERELY BECAUSE STATE COURTS ARE EQUALLY RESPONSIBLE FOR THE ENFORCEMENT
AND PROTECTION OF FEDERAL CONSTITUTIONAL RIGHTS.  P. 248. 

(B)  A STATUTORY CONSTRUCTION BY THE STATE COURTS WOULD NOT AVOID OR
MODIFY THE CONSTITUTIONAL QUESTION AS THE STATUTE INVOLVED HERE IS
BEING CHALLENGED, NOT FOR ITS LACK OF CLARITY, BUT FOR ITS
"OVERBREADTH."  PP. 249-250. 

(C)  THE PRINCIPLE THAT ABSTENTION CANNOT BE USED SIMPLY TO GIVE THE
STATE COURTS THE FIRST OPPORTUNITY TO VINDICATE A FEDERAL CLAIM IS
PARTICULARLY SIGNIFICANT WHEN, AS HERE, THE STATUTE IS BEING ATTACKED
AS REPUGNANT TO THE FIRST AMENDMENT, FOR THE DELAY FROM REQUIRING
RECOURSE TO THE STATE COURTS MIGHT CHILL THE VERY CONSTITUTIONAL RIGHT
WHICH A PLAINTIFF SEEKS TO PROTECT.  P. 252. 

2.  THE DISTRICT COURT HAD THE DUTY OF ADJUDICATING THE REQUEST FOR A
DECLARATORY JUDGMENT REGARDLESS OF ITS CONCLUSION AS TO THE PROPRIETY
OF THE ISSUANCE OF AN INJUNCTION, FOR, AS DOMBROWSKI V. PFISTER, 380
U.S. 479, MADE CLEAR, THE QUESTIONS OF ABSTENTION AND OF INJUNCTIVE
RELIEF ARE NOT THE SAME.  PP. 252-255. 

ZWICKLER V. KOOTA, DISTRICT ATTORNEY OF KINGS COUNTY. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF NEW YORK. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

DISTRIBUTE IN QUANTITY, AMONG OTHER THINGS, ANY HANDBILL FOR ANOTHER
WHICH CONTAINS ANY STATEMENT CONCERNING ANY CANDIDATE IN CONNECTION
WITH ANY ELECTION OF PUBLIC OFFICERS, WITHOUT ALSO PRINTING THEREON THE
NAME AND POST OFFICE ADDRESS OF THE PRINTER THEREOF AND OF THE PERSON
AT WHOSE INSTANCE SUCH HANDBILL IS SO DISTRIBUTED.  (FN1) APPELLANT WAS
CONVICTED OF VIOLATING THE STATUTE BY DISTRIBUTING ANONYMOUS HANDBILLS
CRITICAL OF THE RECORD OF A UNITED STATES CONGRESSMAN SEEKING RE
ELECTION AT THE 1964 ELECTIONS.  THE CONVICTION WAS REVERSED, ON STATE
LAW GROUNDS, BY THE NEW YORK SUPREME COURT, APPELLATE TERM, (FN2) AND
THE NEW YORK COURT OF APPEALS AFFIRMED WITHOUT OPINION, 16 N.Y.2D 1069,
266 N.Y.S.2D 140, 213 N.E.2D 467.  THEREAFTER APPELLANT, INVOKING THE
DISTRICT COURT'S JURISDICTION UNDER THE CIVIL RIGHTS ACT, 28 U.S.C.
SEC. 1343, AND THE DECLARATORY JUDGMENT ACT, 28 U.S.C. SEC. 2201, (FN3)
SOUGHT DECLARATORY AND INJUNCTIVE RELIEF IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK ON THE GROUND THAT, ON ITS FACE, THE
STATUTE WAS REPUGNANT TO THE GUARANTEES OF FREE EXPRESSION SECURED BY
THE FEDERAL CONSTITUTION.  HIS CONTENTION, BELOW AND IN THIS COURT, IS
THAT THE STATUTE SUFFERS FROM IMPERMISSIBLE "OVERBREADTH" IN THAT ITS
SWEEP EMBRACES ANONYMOUS HANDBILLS BOTH WITHIN AND OUTSIDE THE
PROTECTION OF THE FIRST AMENDMENT.  CF. TALLEY V. CALIFORNIA, 362 U.S.
60.  A THREE-JUDGE COURT, ONE JUDGE DISSENTING, APPLIED THE DOCTRINE OF
ABSTENTION AND DISMISSED THE COMPLAINT, (FN4) REMITTING APPELLANT TO
THE NEW YORK COURTS TO ASSERT HIS CONSTITUTIONAL CHALLENGE IN DEFENSE
OF ANY CRIMINAL PROSECUTION FOR ANY FUTURE VIOLATIONS OF THE STATUTE
OR, SHORT OF THIS, TO THE INSTITUTION OF "AN ACTION IN THE STATE COURT
FOR A DECLARATORY JUDGMENT."  (FN5)  261 F. SUPP. 985, 993.  BECAUSE
APPELLANT'S APPEAL PRESENTS AN IMPORTANT QUESTION OF THE SCOPE OF THE
DISCRETION OF THE DISTRICT COURTS TO ABSTAIN FROM DECIDING THE MERITS
OF A CHALLENGE THAT A STATE STATUTE ON ITS FACE VIOLATES THE FEDERAL
CONSTITUTION, WE NOTED PROBABLE JURISDICTION.  386 U.S. 906.  WE
REVERSE. 

WE SHALL CONSIDER FIRST WHETHER ABSTENTION FROM THE DECLARATORY
JUDGMENT SOUGHT BY APPELLANT WOULD HAVE BEEN APPROPRIATE IN THE ABSENCE
OF HIS REQUEST FOR INJUNCTIVE RELIEF, AND SECOND, IF NOT, WHETHER
ABSTENTION WAS NEVERTHELESS JUSTIFIED BECAUSE APPELLANT ALSO SOUGHT AN
INJUNCTION AGAINST FUTURE CRIMINAL PROSECUTIONS FOR VIOLATION OF SEC.
781-B.

                                          I. 

DURING MOST OF THE NATION'S FIRST CENTURY, CONGRESS RELIED ON THE
STATE COURTS TO VINDICATE ESSENTIAL RIGHTS ARISING UNDER THE
CONSTITUTION AND FEDERAL LAWS.  THE ONLY EXCEPTION WAS THE 25TH SECTION
OF THE JUDICIARY ACT OF 1789, 1 STAT. 85, PROVIDING FOR REVIEW IN THIS
COURT WHEN A CLAIM OF FEDERAL RIGHT WAS DENIED BY A STATE COURT.  (FN6)
BUT THAT POLICY WAS COMPLETELY ALTERED AFTER THE CIVIL WAR WHEN
NATIONALISM DOMINATED POLITICAL THOUGHT (FN7) AND BROUGHT WITH IT
CONGRESSIONAL INVESTITURE OF THE FEDERAL JUDICIARY WITH ENORMOUSLY
INCREASED POWERS.  THE ACT OF MARCH 3, 1875, (FN8) WAS THE PRINCIPAL "
...  MEASURE OF THE BROADENING FEDERAL DOMAIN IN THE AREA OF INDIVIDUAL
RIGHTS," MCNEESE V. BOARD OF EDUCATION, 373 U.S. 668, 673.  BY THAT
STATUTE "  ...  CONGRESS GAVE THE FEDERAL COURTS THE VAST RANGE OF
POWER WHICH HAD LAIN DORMANT IN THE CONSTITUTION SINCE 1789.  THESE
COURTS CEASED TO BE RESTRICTED TRIBUNALS OF FAIR DEALING BETWEEN
CITIZENS OF DIFFERENT STATES AND BECAME THE PRIMARY AND POWERFUL
RELIANCES FOR VINDICATING EVERY RIGHT GIVEN BY THE CONSTITUTION, THE
LAWS, AND TREATIES OF THE UNITED STATES."  FRANKFURTER & LANDIS, THE
BUSINESS OF THE SUPREME COURT:  A STUDY IN THE FEDERAL JUDICIAL SYSTEM
65.  INDEED, EVEN BEFORE THE 1875 ACT, CONGRESS, IN THE CIVIL RIGHTS
ACT OF 1871, (FN9) SUBJECTED TO SUIT, "EVERY PERSON WHO, UNDER COLOR OF
ANY STATUTE  ...  SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF
THE UNITED STATES OR OTHER PERSON  ...  TO THE DEPRIVATION OF ANY
RIGHTS  ...  SECURED BY THE CONSTITUTION AND LAWS  ...  ," 42 U.S.C.
SEC. 1983; AND GAVE THE DISTRICT COURTS "ORIGINAL JURISDICTION" OF
ACTIONS "TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW  ...
OF ANY RIGHT  ...  SECURED BY THE CONSTITUTION  ...  ."  28 U.S.C. SEC.
1343(3). 

IN THUS EXPANDING FEDERAL JUDICIAL POWER, CONGRESS IMPOSED THE DUTY
UPON ALL LEVELS OF THE FEDERAL JUDICIARY TO GIVE DUE RESPECT TO A
SUITOR'S CHOICE OF A FEDERAL FORUM FOR THE HEARING AND DECISION OF HIS
FEDERAL CONSTITUTIONAL CLAIMS.  PLAINLY, ESCAPE FROM THAT DUTY IS NOT
PERMISSIBLE MERELY BECAUSE STATE COURTS ALSO HAVE THE SOLEMN
RESPONSIBILITY, EQUALLY WITH THE FEDERAL COURTS, "  ... TO GUARD,
ENFORCE, AND PROTECT EVERY RIGHT GRANTED OR SECURED BY THE CONSTITUTION
OF THE UNITED STATES  ...  ," ROBB V. CONNOLLY, 111 U.S. 624, 637.  "WE
YET LIKE TO BELIEVE THAT WHEREVER THE FEDERAL COURTS SIT, HUMAN RIGHTS
UNDER THE FEDERAL CONSTITUTION ARE ALWAYS A PROPER SUBJECT FOR
ADJUDICATION, AND THAT WE HAVE NOT THE RIGHT TO DECLINE THE EXERCISE OF
THAT JURISDICTION SIMPLY BECAUSE THE RIGHTS ASSERTED MAY BE ADJUDICATED
IN SOME OTHER FORUM."  STAPLETON V. MITCHELL, 60 F. SUPP. 51, 55; SEE
MCNEESE V. BOARD OF EDUCATION, 373 U.S., AT 674, N. 6.  CF. COHENS V.
VIRGINIA, 6 WHEAT.  264, 404.  THE JUDGE-MADE DOCTRINE OF ABSTENTION,
FIRST FASHIONED IN 1941 IN RAILROAD COMMISSION V. PULLMAN CO., 312 U.S.
496, SANCTIONS SUCH ESCAPE ONLY IN NARROWLY LIMITED "SPECIAL
CURCUMSTANCES."  PROPPER V. CLARK, 337 U.S. 472, 492.  (FN10) ONE OF
THE "SPECIAL CIRCUMSTANCES" - THAT THOUGHT BY THE DISTRICT COURT TO BE
PRESENT IN THIS CASE - IS THE SUSCEPTIBILITY OF A STATE STATUTE OF A
CONSTRUCTION BY THE STATE COURTS THAT WOULD AVOID OR MODIFY THE
CONSTITUTIONAL QUESTION.  HARRISON V. NAACP, 360 U.S. 167.  COMPARE
BAGGETT V. BULLITT, 377 U.S. 360.  (FN11) 

BUT WE HAVE HERE NO QUESTION OF A CONSTRUCTION OF SEC. 781-B THAT
WOULD "AVOID OR MODIFY THE CONSTITUTIONAL QUESTION."  APPELLANT'S
CHALLENGE IS NOT THAT THE STATUTE IS VOID FOR "VAGUENESS," THAT IS,
THAT IT IS A STATUTE "WHICH EITHER FORBIDS OR REQUIRES THE DOING OF AN
ACT IN TERMS SO VAGUE THAT MEN OF COMMON INTELLIGENCE MUST NECESSARILY
GUESS AT ITS MEANING AND DIFFER AS TO ITS APPLICATION  ...  ." 
CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, 391.  (FN12)
RATHER HIS CONSTITUTIONAL ATTACK IS THAT THE STATUTE, ALTHOUGH LACKING
NEITHER CLARITY NOR PRECISION, IS VOID FOR "OVERBREADTH," THAT IS, THAT
IT OFFENDS THE CONSTITUTIONAL PRINCIPLE THAT "A GOVERNMENTAL PURPOSE TO
CONTROL OR PREVENT ACTIVITIES CONSTITUTIONALLY SUBJECT TO STATE
REGULATION MAY NOT BE ACHIEVED BY MEANS WHICH SWEEP UNNECESSARILY
BROADLY AND THEREBY INVADE THE AREA OF PROTECTED FREEDOMS."  NAACP V.
ALABAMA, 377 U.S. 288, 307.  SEE APTHEKER V. SECRETARY OF STATE, 378
U.S. 500, 508-509; NAACP V. BUTTON, 371 U.S. 415, 438; LOUISIANA EX
REL. GREMILLION V. NAACP, 366 U.S. 293; SHELTON V. TUCKER, 364 U.S.
479, 488; SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 246; MARTIN
V. CITY OF STRUTHERS, 319 U.S. 141, 146-149; CANTWELL V. CONNECTICUT,
310 U.S. 296, 304-307; SCHNEIDER V. STATE, 308 U.S. 147, 161, 165. 
(FN13)  APPELLEE DOES NOT CONTEST APPELLANT'S SUGGESTION THAT SEC. 781
B IS BOTH CLEAR AND PRECISE; INDEED, APPELLEE CONCEDES THAT STATE COURT
CONSTRUCTION CANNOT NARROW ITS ALLEGEDLY INDISCRIMINATE CAST AND RENDER
UNNECESSARY A DECISION OF APPELLANT'S CONSTITUTIONAL CHALLENGE.  SEE
APTHEKER V. SECRETARY OF STATE, 378 U.S. 500. 

THE ANALYSIS IN UNITED STATES V. LIVINGSTON, 179 F. SUPP. 9, 12-13,
AFF'D, LIVINGSTON V. UNITED STATES, 364 U.S. 281, IS THE GUIDE TO
DECISION HERE: 

"REGARD FOR THE INTEREST AND SOVEREIGNTY OF THE STATE AND RELUCTANCE
NEEDLESSLY TO ADJUDICATE CONSTITUTIONAL ISSUES MAY REQUIRE A FEDERAL
DISTRICT COURT TO ABSTAIN FROM ADJUDICATION IF THE PARTIES MAY AVAIL
THEMSELVES OF AN APPROPRIATE PROCEDURE TO OBTAIN STATE INTERPRETATION
OF STATE LAWS REQUIRING CONSTRUCTION.  HARRISON V. N.A.A.C.P., 360 U.S.
167.  THE DECISION IN HARRISON, HOWEVER, IS NOT A BROAD ENCYCLICAL
COMMANDING AUTOMATIC REMISSION TO THE STATE COURTS OF ALL FEDERAL
CONSTITUTIONAL QUESTIONS ARISING IN THE APPLICATION OF STATE STATUTES. 
N.A.A.C.P. V. BENNETT, 360 U.S. 471.  THOUGH NEVER INTERPRETED BY A
STATE COURT, IF A STATE STATUTE IS NOT FAIRLY SUBJECT TO AN
INTERPRETATION WHICH WILL AVOID OR MODIFY THE FEDERAL CONSTITUTIONAL
QUESTION, IT IS THE DUTY OF A FEDERAL COURT TO DECIDE THE FEDERAL
QUESTION WHEN PRESENTED TO IT.  ANY OTHER COURSE WOULD IMPOSE EXPENSE
AND LONG DELAY UPON THE LITIGANTS WITHOUT HOPE OF ITS BEARING FRUIT." 

IN TURNER V. CITY OF MEMPHIS, 369 U.S. 350 (PER CURIAM), WE VACATED
AN ABSTENTION ORDER WHICH HAD BEEN GRANTED ON THE SOLE GROUND THAT A
DECLARATORY JUDGMENT ACTION OUGHT TO HAVE BEEN BROUGHT IN THE STATE
COURT BEFORE THE FEDERAL COURT WAS CALLED UPON TO CONSIDER THE
CONSTITUTIONALITY OF A STATUTE ALLEGED TO BE VIOLATIVE OF THE
FOURTEENTH AMENDMENT.  IN MCNEESE V. BOARD OF EDUCTION, 373 U.S. 668,
WE AGAIN EMPHASIZED THAT ABSTENTION CANNOT BE ORDERED SIMPLY TO GIVE
STATE COURTS THE FIRST OPPORTUNITY TO VINDICATE THE FEDERAL CLAIM. 
(FN14)  AFTER EXAMINING THE PURPOSES OF THE CIVIL RIGHTS ACT, UNDER
WHICH THAT ACTION WAS BROUGHT, WE CONCLUDED THAT "WE WOULD DEFEAT THOSE
PURPOSES IF WE HELD THAT ASSERTION OF A FEDERAL CLAIM IN A FEDERAL
COURT MUST AWAIT AN ATTEMPT TO VINDICATE THE SAME CLAIM IN A STATE
COURT."  373 U.S., AT 672.  FOR THE "RECOGNITION OF THE ROLE OF STATE
COURTS AS THE FINAL EXPOSITORS OF STATE LAW IMPLIES NO DISREGARD FOR
THE PRIMACY OF THE FEDERAL JUDICIARY IN DECIDING QUESTIONS OF FEDERAL
LAW."  ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375 U.S.
411, 415-416. 

THESE PRINCIPLES HAVE PARTICULAR SIGNIFICANCE WHEN, AS IN THIS CASE,
THE ATTACK UPON THE STATUTE ON ITS FACE IS FOR REPUGNANCY TO THE FIRST
AMENDMENT.  IN SUCH CASES TO FORCE THE PLAINTIFF WHO HAS COMMENCED A
FEDERAL ACTION TO SUFFER THE DELAY OF STATE COURT PROCEEDINGS MIGHT
ITSELF EFFECT THE IMPERMISSIBLE CHILLING OF THE VERY CONSTITUTIONAL
RIGHT HE SEEKS TO PROTECT.  SEE DOMBROWSKI V. PFISTER, 380 U.S. 479,
486-487; BAGGETT V. BULLITT, SUPRA, AT 378-379; NAACP V. BUTTON, SUPRA,
AT 433; CF. GARRISON V. LOUISIANA, 379 U.S. 64, 74-75; SMITH V.
CALIFORNIA, 361 U.S. 147. 

IT FOLLOWS THAT UNLESS APPELLANT'S ADDITION OF A PRAYER FOR
INJUNCTIVE RELIEF SUPPLIES ONE, NO "SPECIAL CIRCUMSTANCE" PREREQUISITE
TO APPLICATION OF THE DOCTRINE OF ABSTENTION IS PRESENT HERE, BAGGETT
V. BULLITT, 377 U.S. 360, 375-379, AND IT WAS ERROR TO REFUSE TO PASS
ON APPELLANT'S CLAIM FOR A DECLARATORY JUDGMENT.  (FN15)

                                II. 

IN SUPPORT OF HIS PRAYER FOR AN INJUNCTION AGAINST FURTHER
PROSECUTIONS FOR VIOLATION OF SEC. 781-B, APPELLANT'S AMENDED COMPLAINT
ALLEGES THAT HE DESIRES TO CONTINUE TO DISTRIBUTE ANONYMOUS HANDBILLS
IN QUANTITY "IN CONNECTION WITH ANY ELECTION OF PARTY OFFICIALS,
NOMINATION FOR PUBLIC OFFICE AND PARTY POSITION THAT MAY OCCUR
SUBSEQUENT TO SAID ELECTION CAMPAIGN OF 1966."  (FN16)  HE FURTHER
ALLEGES THAT "BECAUSE OF THE PREVIOUS PROSECUTION OF PLAINTIFF FOR
MAKING THE DISTRIBUTION OF THE LEAFLET  ...  PLAINTIFF IS IN FEAR OF
EXERCISING HIS RIGHT TO MAKE DISTRIBUTION AS AFORESAID AND IS IN DANGER
OF AGAIN BEING PROSECUTED THEREFOR, UNLESS HIS RIGHT OF EXPRESSION IS
DECLARED BY THIS COURT, WITHOUT SUBMITTING HIMSELF TO THE PENALTIES OF
THE STATUTE." 

THE MAJORITY BELOW WAS OF THE VIEW THAT, IN LIGHT OF THIS PRAYER,
ABSTENTION FROM DECIDING THE DECLARATORY JUDGMENT ISSUE WAS JUSTIFIED
BECAUSE APPELLANT HAD MADE NO SHOWING OF "SPECIAL CIRCUMSTANCES"
ENTITLING HIM TO AN INJUNCTION AGAINST CRIMINAL PROSECUTION.  APPELLEE
SUPPORTS THIS HOLDING BY RELIANCE UPON THE MAXIM THAT A FEDERAL
DISTRICT COURT SHOULD BE SLOW TO ACT "WHERE ITS POWERS ARE INVOKED TO
INTERFERE BY INJUNCTION WITH THREATENED CRIMINAL PROSECUTIONS IN A
STATE COURT."  DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157, 162.  WE
HAVE RECENTLY RECOGNIZED THE CONTINUING VALIDITY OF THAT
PRONOUNCEMENT.  DOMBROWSKI V. PFISTER, 380 U.S. 479, 483-485.  HOWEVER,
APPELLANT HERE DID NOT, AS DID THE PLAINTIFFS IN DOUGLAS, 319 U.S., AT
159, SEEK SOLELY TO "RESTRAIN THREATENED CRIMINAL PROSECUTION OF HIM IN
THE STATE COURTS  ...  ."  RATHER, HE ALSO REQUESTED A DECLARATORY
JUDGMENT THAT THE STATE STATUTE UNDERLYING THE APPREHENDED CRIMINAL
PROSECUTION WAS UNCONSTITUTIONAL. 

THE MAJORITY BELOW, ALTHOUGH RECOGNIZING THAT DOUGLAS MIGHT BE
INAPPOSITE TO THIS CASE, 261 F. SUPP., AT 990, READ DOMBROWSKI V.
PFISTER AS REQUIRING ABSTENTION FROM CONSIDERING APPELLANT'S REQUEST
FOR A DECLARATORY JUDGMENT IN THE ABSENCE OF A SHOWING BY APPELLANT OF
"SPECIAL CIRCUMSTANCES TO JUSTIFY THE EXERCISE OF FEDERAL COURT
JURISDICTION  ...  " TO GRANT INJUNCTIVE RELIEF.  261 F. SUPP., AT
991.  SINCE THE MAJORITY FOUND NO "SPECIAL CIRCUMSTANCES" JUSTIFYING
THAT RELIEF, THE MAJORITY CONCLUDED THAT IT WAS ALSO REQUIRED TO
ABSTAIN FROM CONSIDERING THE REQUEST FOR DECLARATORY RELIEF.    THIS
CONCLUSION WAS ERROR.  DOMBROWSKI TEACHES THAT THE QUESTIONS OF
ABSTENTION AND OF INJUNCTIVE RELIEF ARE NOT THE SAME.  (FN17)  THE
QUESTION OF THE PROPRIETY OF THE ACTION OF THE DISTRICT COURT IN
ABSTAINING WAS DISCUSSED AS AN INDEPENDENT ISSUE GOVERNED BY DIFFERENT
CONSIDERATIONS.  WE SQUARELY HELD THAT "THE ABSTENTION DOCTRINE IS
INAPPROPRIATE FOR CASES SUCH AS THE PRESENT ONE WHERE  ...  STATUTES
ARE JUSTIFIABLY ATTACKED ON THEIR FACE AS ABRIDGING FREE EXPRESSION
...  ."  380 U.S., AT 489-490.  THIS VIEW WAS REAFFIRMED IN KEYISHIAN
V. BOARD OF REGENTS, 385 U.S. 589, 601, N. 9, WHEN A STATUTE WAS
ATTACKED AS UNCONSTITUTIONAL ON ITS FACE AND WE SAID, CITING DOMBROWSKI
AND BAGGETT V. BULLITT, SUPRA, "THIS IS NOT A CASE WHERE ABSTENTION
PENDING STATE COURT INTERPRETATION WOULD BE APPROPRIATE  ...  ." 

IT FOLLOWS THAT THE DISTRICT COURT'S VIEWS ON THE QUESTION OF
INJUNCTIVE RELIEF ARE IRRELEVANT TO THE QUESTION OF ABSTENTION HERE. 
FOR A REQUEST FOR A DECLARATORY JUDGMENT THAT A STATE STATUTE IS
OVERBROAD ON ITS FACE MUST BE CONSIDERED INDEPENDENTLY OF ANY REQUEST
FOR INJUNCTIVE RELIEF AGAINST THE ENFORCEMENT OF THAT STATUTE.  WE HOLD
THAT A FEDERAL DISTRICT COURT HAS THE DUTY TO DECIDE THE
APPROPRIATENESS AND THE MERITS OF THE DECLARATORY REQUEST IRRESPECTIVE
OF ITS CONCLUSION AS TO THE PROPRIETY OF THE ISSUANCE OF THE
INJUNCTION.  DOUGLAS V. CITY OF JEANNETTE, SUPRA, IS NOT CONTRARY. 
THAT CASE INVOLVED ONLY THE REQUEST FOR INJUNCTIVE RELIEF.  THE COURT
REFUSED TO ENJOIN PROSECUTION UNDER AN ORDINANCE DECLARED
UNCONSTITUTIONAL THE SAME DAY IN MURDOCK V. PENNSYLVANIA, 319 U.S.
105.  COMITY BETWEEN THE FEDERAL AND PENNSYLVANIA COURTS WAS DEEMED
SUFFICIENT REASON TO JUSTIFY THE HOLDING THAT "IN VIEW OF THE DECISION
RENDERED TODAY IN MURDOCK  ...  WE FIND NO GROUND FOR SUPPOSING THAT
THE INTERVENTION OF A FEDERAL COURT, IN ORDER TO SECURE PETITIONERS'
CONSTITUTIONAL RIGHTS, WILL BE EITHER NECESSARY OR APPROPRIATE."  319
U.S., AT 165.  IT WILL BE THE TASK OF THE DISTRICT COURT ON THE REMAND
TO DECIDE WHETHER AN INJUNCTION WILL BE "NECESSARY OR APPROPRIATE"
SHOULD APPELLANT'S PRAYER FOR DECLARATORY RELIEF PREVAIL.  WE EXPRESS
NO VIEW WHATEVER WITH RESPECT TO THE APPROPRIATENESS OF DECLARATORY
RELIEF IN THE CIRCUMSTANCES OF THIS CASE OR THE CONSTITUTIONAL VALIDITY
OF THE LAW. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED. 

FN1  N.Y. PENAL LAW SEC. 781-B (NOW SUPERSEDED IN IDENTICAL LANGUAGE
BY N.Y. ELECTION LAW SEC. 457, SEE LAWS 1965, C. 1031, AT 1782-1783): 

"NO PERSON SHALL PRINT, PUBLISH, REPRODUCE OR DISTRIBUTE IN QUANTITY,
NOR ORDER TO BE PRINTED, PUBLISHED, REPRODUCED OR DISTRIBUTED BY ANY
METHOD ANY HANDBILL, PAMPHLET, CIRCULAR, POST CARD, PLACARD OR LETTER
FOR ANOTHER, WHICH CONTAINS ANY STATEMENT, NOTICE, INFORMATION,
ALLEGATION OR OTHER MATERIAL CONCERNING ANY POLITICAL PARTY, CANDIDATE,
COMMITTEE, PERSON, PROPOSITION OR AMENDMENT TO THE STATE CONSTITUTION,
WHETHER IN FAVOR OF OR AGAINST A POLITICAL PARTY, CANDIDATE, COMMITTEE,
PERSON, PROPOSITION OR AMENDMENT TO THE STATE CONSTITUTION, IN
CONNECTION WITH ANY ELECTION OF PUBLIC OFFICERS, PARTY OFFICIALS,
CANDIDATES FOR NOMINATION FOR PUBLIC OFFICE, PARTY POSITION,
PROPOSITION OR AMENDMENT TO THE STATE CONSTITUTION WITHOUT ALSO
PRINTING OR REPRODUCING THEREON LEGIBLY AND IN THE ENGLISH LANGUAGE THE
NAME AND POST-OFFICE ADDRESS OF THE PRINTER THEREOF AND OF THE PERSON
OR COMMITTEE AT WHOSE INSTANCE OR REQUEST SUCH HANDBILL, PAMPHLET,
CIRCULAR, POST CARD, PLACARD OR LETTER IS SO PRINTED, PUBLISHED,
REPRODUCED OR DISTRIBUTED, AND OF THE PERSON WHO ORDERED SUCH PRINTING,
PUBLISHING, REPRODUCTION OR DISTRIBUTION, AND NO PERSON NOR COMMITTEE
SHALL SO PRINT, PUBLISH, REPRODUCE OR DISTRIBUTE OR ORDER TO BE
PRINTED, PUBLISHED, REPRODUCED OR DISTRIBUTED ANY SUCH HANDBILL,
PAMPHLET, CIRCULAR, POST CARD, PLACARD OR LETTER WITHOUT ALSO PRINTING,
PUBLISHING, OR REPRODUCING HIS OR ITS NAME AND POST-OFFICE ADDRESS
THEREON.  A VIOLATION OF THE PROVISIONS OF THIS SECTION SHALL
CONSTITUTE A MISDEMEANOR. 

"THE TERM 'PRINTER' AS USED IN THIS SECTION MEANS THE PRINCIPAL WHO
OR WHICH BY INDEPENDENT CONTRACTUAL RELATIONSHIP IS RESPONSIBLE
DIRECTLY TO THE PERSON OR COMMITTEE AT WHOSE INSTANCE OR REQUEST A
HANDBILL, PAMPHLET, CIRCULAR, POST CARD, PLACARD OR LETTER IS PRINTED,
PUBLISHED, REPRODUCED OR DISTRIBUTED BY SUCH PRINCIPAL, AND DOES NOT
INCLUDE A PERSON WORKING FOR OR EMPLOYED BY SUCH A PRINCIPAL." 

FN2  "IN OUR OPINION, THE PEOPLE FAILED TO ESTABLISH THAT DEFENDANT
DISTRIBUTED ANONYMOUS LITERATURE 'IN QUANTITY' IN VIOLATION OF THE
PROVISIONS OF SECTION 781(B) OF THE PENAL LAW.  WE DO NOT REACH THE
QUESTION OF THE CONSTITUTIONALITY OF THE STATUTE INVOLVED."  PEOPLE V.
ZWICKLER, SUP. CT., APP. TERM, KINGS COUNTY, APRIL 23, 1965
(UNREPORTED), AS QUOTED IN ZWICKLER V. KOOTA, 261 F. SUPP. 985, 987. 

FN3  APPELLEE QUESTIONS THE STATEMENT OF THE MAJORITY BELOW THAT "THE
COMPLAINT  ...  ALLEGES A CASE OR CONTROVERSY WHICH IS WITHIN THE
ADJUDICATORY POWER OF THIS COURT.  DOUGLAS V. CITY OF JEANNETTE, 319
U.S. 157, 162."  261 F. SUPP., AT 989.  NOTWITHSTANDING THIS STATEMENT,
WE ARE NOT PERSUADED, IN LIGHT OF ITS DECISION TO ABSTAIN, THAT THE
MAJORITY BELOW CONSIDERED THE PREREQUISITES TO A DECLARATORY JUDGMENT
OR THAT THESE ISSUES WERE IN FACT ADJUDICATED.  "BASICALLY, THE
QUESTION IN EACH CASE IS WHETHER THE FACTS ALLEGED, UNDER ALL THE
CIRCUMSTANCES, SHOW THAT THERE IS A SUBSTANTIAL CONTROVERSY, BETWEEN
PARTIES HAVING ADVERSE LEGAL INTERESTS, OF SUFFICIENT IMMEDIACY AND
REALITY TO WARRANT THE ISSUANCE OF A DECLARATORY JUDGMENT."  MARYLAND
CAS. CO. V. PACIFIC COAL & OIL CO., 312 U.S. 270, 273.  IT WILL BE FOR
THE DISTRICT COURT ON THE REMAND TO DECIDE WHETHER APPELLANT'S
ALLEGATIONS ENTITLE HIM TO A DECLARATORY JUDGMENT ON THE CONSTITUTIONAL
QUESTION. 

FN4  IT IS BETTER PRACTICE, IN A CASE RAISING A FEDERAL
CONSTITUTIONAL OR STATUTORY CLAIM, TO RETAIN JURISDICTION, RATHER THAN
TO DISMISS, SEE NOTE, FEDERAL-QUESTION ABSTENTION: JUSTICE
FRANKFURTER'S DOCTRINE IN AN ACTIVIST ERA, 80 HARV. L. REV. 604 (1967),
BUT OTHER COURTS HAVE ALSO ORDERED DISMISSAL.  COMPARE GOVERNMENT &
CIVIC EMPLOYEES ORGANIZING COMMITTEE, CIO V. WINDSOR, 353 U.S. 364;
SHIPMAN V. DUPRE, 339 U.S. 321, WITH STAINBACK V. MO HOCK KE LOK PO,
336 U.S. 368; LOCAL 333B, UNITED MARINE DIV., INT'L LONGSHOREMEN'S
ASSN. V. BATTLE, 101 F. SUPP. 650 (D.C.E.D. VA.), AFF'D PER CURIAM, 342
U.S. 880.  SEE GENERALLY NOTE, JUDICIAL ABSTENTION FROM THE EXERCISE OF
FEDERAL JURISDICTION, 59 COL. L. REV. 749, 772-774 (1959). 

FN5  NEW YORK PROVIDES A DECLARATORY JUDGMENT REMEDY, N.Y. CIV.
PRAC.  SEC.  3001. SEE DE VEAU V. BRAISTED, 5 APP. DIV. 2D 603, 174
N.Y.S.2D 596 (2D DEPT.), AFF'D, 5 N.Y.2D 236, 183 N.Y.S.2D 793, 157
N.E.2D 165, AFF'D, 363 U.S. 144. 

FN6  THUS CONGRESS DID NOT EXERCISE THE GRANT UNDER ART. III, SEC. 2,
CL. 1, OF THE CONSTITUTION: "THE JUDICIAL POWER SHALL EXTEND TO ALL
CASES, IN LAW AND EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF
THE UNITED STATES, AND TREATIES MADE, OR WHICH SHALL BE MADE, UNDER
THEIR AUTHORITY  ...  ."  ORIGINAL "ARISING UNDER" JURISDICTION WAS
VESTED IN THE FEDERAL COURTS BY SEC. 11 OF THE ACT OF FEBRUARY 13,
1801, C. 4, 2 STAT. 92, BUT IT WAS REPEALED ONLY A YEAR LATER BY SEC. 1
OF THE ACT OF MARCH 8, 1802, C. 8, 2 STAT. 132.  AN EARLIER VERSION OF
THE JUDICIARY ACT OF 1789, WHICH DIED IN COMMITTEE, PROVIDED FOR
JURISDICTION IN THE FEDERAL COURTS "'OF ALL CASES OF FEDERAL
JURISDICTION, WHETHER IN LAW OR EQUITY ABOVE THE VALUE OF FIVE HUNDRED
DOLLARS'  ...  ."  WARREN, NEW LIGHT ON THE HISTORY OF THE FEDERAL
JUDICIARY ACT OF 1789, 37 HARV. L. REV. 49, 61 (1923).  SEE GENERALLY
FRANKFURTER & LANDIS, THE BUSINESS OF THE SUPREME COURT:  A STUDY IN
THE FEDERAL JUDICIAL SYSTEM, C. 1.

FN7  "THE HISTORY OF THE FEDERAL COURTS IS WOVEN INTO THE HISTORY OF
THE TIMES.  THE FACTORS IN OUR NATIONAL LIFE WHICH CAME IN WITH
RECONSTRUCTION ARE THE SAME FACTORS WHICH INCREASED THE BUSINESS OF THE
FEDERAL COURTS, ENLARGED THEIR JURISDICTION, MODIFIED AND EXPANDED
THEIR STRUCTURE."   FRANKFURTER & LANDIS, SUPRA, AT 59; SEE ALSO
FRANKFURTER, DISTRIBUTION OF JUDICIAL POWER BETWEEN UNITED STATES AND
STATE COURTS, 13 CORNELL L.Q. 499, 507-511 (1928). 

FN8  THE STATUTE GRANTED THE DISTRICT COURTS "ORIGINAL COGNIZANCE,
CONCURRENT WITH THE COURTS OF THE SEVERAL STATES, OF ALL SUITS OF A
CIVIL NATURE AT COMMON LAW OR IN EQUITY, WHERE THE MATTER IN DISPUTE
EXCEEDS, EXCLUSIVE OF COSTS, THE SUM OR VALUE OF FIVE HUNDRED DOLLARS,
AND ARISING UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES, OR
TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY  ...  ." 
ACT OF MARCH 3, 1875, SEC. 1, 18 STAT. 470.  SEE GENERALLY HART &
WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 727-733; WRIGHT,
FEDERAL COURTS SEC. 17; CHADBOURN & LEVIN, ORIGINAL JURISDICTION OF
FEDERAL QUESTIONS, 90 U. PA. L. REV. 639 (1942); FORRESTER, FEDERAL
QUESTION JURISDICTION AND SECTION 5, 18 TULANE L. REV. 263 (1943);
FORRESTER, THE NATURE OF A "FEDERAL QUESTION," 16 TULANE L. REV. 362
(1942); MISHKIN, THE FEDERAL "QUESTION" IN THE DISTRICT COURTS, 53 COL.
L. REV. 157 (1953). 

"THIS DEVELOPMENT IN THE FEDERAL JUDICIARY, WHICH IN THE RETROSPECT
SEEMS REVOLUTIONARY, RECEIVED HARDLY A CONTEMPORARY COMMENT." 
FRANKFURTER & LANDIS, SUPRA, AT 65.  WHILE THERE IS PRACTICALLY NO
LEGISLATIVE HISTORY OF THE ACT, SEE ID., AT 65-69, FOR A SUMMARY OF
WHAT HISTORY IS AVAILABLE, COMMENTATORS ARE GENERALLY AGREED THAT A
BROAD GRANT OF JURISDICTION WAS INTENDED.  SEE, E.G., FORRESTER, THE
NATURE OF A "FEDERAL QUESTION," 16 TULANE L. REV.  362, 374-385 (1942);
MISHKIN, THE FEDERAL "QUESTION" IN THE DISTRICT COURTS, 53 COL. L. REV.
157, 160 (1953).  THIS IS NOT TO SAY THAT THIS COURT HAS READ THE
CONGRESSIONAL GRANT OF POWER IN THE ACT OF 1875 AS EQUATED WITH THE
POTENTIAL FOR FEDERAL JURISDICTION FOUND IN ARTICLE III OF THE
CONSTITUTION.  SEE, E.G., NATIONAL MUT. INS. CO. V. TIDEWATER TRANSFER
CO., 337 U.S. 582, 613-615 (OPINION OF RUTLEDGE, J.); SHOSHONE MINING
CO. V. RUTTER, 177 U.S. 505. 

FN9  FIVE CIVIL RIGHTS ACTS WERE PASSED BETWEEN 1866 AND 1875.  SEE
14 STAT. 27 (1866), 16 STAT. 140 (1970), 16 STAT. 433 (1871), 17 STAT.
13 (1871), 18 STAT. 335 (1875).  ONLY SEC. 1 OF THE ACT OF APRIL 20,
1871, 17 STAT. 13, PRESENTLY CODIFIED AS 42 U.S.C. SEC.  1983, ACHIEVED
MEASURABLE SUCCESS IN LATER YEARS.  SEE GENERALLY NOTE, THE CIVIL
RIGHTS ACT OF 1871:  CONTINUING VITALITY, 40 NOTRE DAME LAW.  70
(1964). 

FN10  SEE, E.G., CITY OF MERIDIAN V. SOUTHERN BELL TEL. & TEL. CO.,
358 U.S. 639; GOVERNMENT & CIVIC EMPLOYEES ORGANIZING COMMITTEE, CIO V.
WINDSOR, 353 U.S. 364; LEITER MINERALS, INC. V. UNITED STATES, 352 U.S.
220; ALBERTSON V. MILLARD, 345 U.S. 242; SHIPMAN V. DUPRE, 339 U.S.
321; STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368; AMERICAN FEDERATION
OF LABOR V. WATSON, 327 U.S. 582; ALABAMA STATE FEDERATION OF LABOR V.
MCADORY, 325 U.S. 450; SPECTOR MOTOR SERVICE, INC. V. MCLAUGHLIN, 323
U.S. 101; CHICAGO V. FIELDCREST DAIRIES, INC., 316 U.S. 168.  SEE
GENERALLY WRIGHT, THE ABSTENTION DOCTRINE RECONSIDERED, 37 TEX. L. REV.
815 (1959); NOTE, JUDICIAL ABSTENTION FROM THE EXERCISE OF FEDERAL
JURISDICTION, 59 COL. L. REV. 749 (1959); NOTE, FEDERAL-QUESTION
ABSTENTION:  JUSTICE FRANKFURTER'S DOCTRINE IN AN ACTIVIST ERA, 80
HARV. L. REV. 604 (1967); NOTE, DOCTRINE OF ABSTENTION:  NEED OF
REAPPRAISAL, 40 NOTRE DAME LAW.  101 (1964).  EVEN WHEN PARTIES ARE
SENT TO STATE COURT FOR CLARIFICATION OF STATE LAW, THE FEDERAL
QUESTION MAY BE RESERVED FOR DECISION BY THE DISTRICT COURT.  ENGLAND
V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411. 

FN11  OTHER "SPECIAL CIRCUMSTANCES" HAVE BEEN FOUND IN DIVERSITY
CASES, SEE, E.G., CLAY V. SUN INSURANCE LTD., 363 U.S. 207; LOUISIANA
POWER & LIGHT CO. V. CITY OF THIBODAUX, 360 U.S. 25; MEREDITH V. WINTER
HAVEN, 320 U.S. 228; BUT SEE COUNTY OF ALLEGHENY V. FRANK MASHUDA CO.,
360 U.S. 185; CF. NOTE, ABSTENTION AND CERTIFICATION IN DIVERSITY
SUITS: "PERFECTION OF MEANS AND CONFUSION OF GOALS," 73 YALE L. J. 850,
AND CASES CITED THEREIN; AND IN CASES INVOLVING POSSIBLE DISRUPTION OF
COMPLEX STATE ADMINISTRATIVE PROCESSES, SEE, E.G., ALABAMA PUBLIC SERV.
COMM'N V. SOUTHERN R. CO., 341 U.S. 341; BURFORD V. SUN OIL CO., 319
U.S. 315; CF. COUNTY OF ALLEGHENY V. FRANK MASHUDA CO., 360 U.S. 185;
LOUISIANA POWER & LIGHT CO. V. CITY OF THIBODAUX, 360 U.S. 25.  SEE
GENERALLY WRIGHT, FEDERAL COURTS SEC.  52; NOTE, 59 COL. L. REV.,
SUPRA, AT 757-762. 

FN12  A LOWER COURT HELD "VOID FOR INDEFINITENESS" A PREDECESSOR
STATUTE OF SEC. 781-B.  PEOPLE V. CLAMPITT, 34 MISC. 2D 766, 222
N.Y.S.2D 23 (CT. SPEC. SESS., N.Y. CITY, 1961).  THEREUPON THE
LEGISLATURE AMENDED THE STATUTE TO ITS PRESENT FORM, PROVIDING THAT AN
OFFENSE COULD NOT BE MADE OUT UNDER IT UNTIL WHATEVER LITERATURE MIGHT
BE "PRINTED" OR "REPRODUCED" MIGHT ALSO BE "DISTRIBUTED."  THE
CONSTITUTIONALITY OF THE AMENDED STATUTE HAS NOT BEEN DETERMINED IN THE
NEW YORK COURTS. 

FN13  FOR THE DIFFERENT CONSTITUTIONAL CONSIDERATIONS INVOLVED IN
ATTACKS FOR "VAGUENESS" AND FOR "OVERBREADTH" SEE KEYISHIAN V. BOARD OF
REGENTS, 385 U.S. 589, 603-604, 608-610. 

FN14  WE HAVE FREQUENTLY EMPHASIZED THAT ABSTENTION IS NOT TO BE
ORDERED UNLESS THE STATE STATUTE IS OF AN UNCERTAIN NATURE, AND IS
OBVIOUSLY SUSCEPTIBLE OF A LIMITING CONSTRUCTION.  HARMAN V.
FORSSENIUS, 380 U.S. 528, 534; DAVIS V. MANN, 377 U.S. 678, 690;
BAGGETT V. BULLITT, 377 U.S. 360, 375-379; ENGLAND V. LOUISIANA STATE
BOARD OF MEDICAL EXAMINERS, 375 U.S. 411, 415-416; MCNEESE V. BOARD OF
EDUCATION, 373 U.S. 668, 673, 674; NAACP V. BENNETT, 360 U.S. 471; CITY
OF CHICAGO V. ATCHISON, T.&S.F.R. CO., 357 U.S. 77, 84; SPECTOR MOTOR
SERVICE, INC. V. MCLAUGHLIN, 323 U.S. 101, 105; NOTE, 80 HARV. L. REV.,
SUPRA, AT 605; NOTE, 40 NOTRE DAME LAW., SUPRA, N. 10, AT 102.    FN15
OF COURSE APPELLANT MUST ESTABLISH THE ELEMENTS GOVERNING THE ISSUANCE
OF A DECLARATORY JUDGMENT.  SEE N. 3, SUPRA. 

FN16  APPELLANT URGES THAT THESE ALLEGATIONS REFUTE APPELLEE'S
SUGGESTION IN HIS MOTION TO DISMISS THAT "SINCE THE POLITICAL
LITERATURE APPELLANT INTENDED TO DISTRIBUTE ALL RELATED TO THE 1966
CONGRESSIONAL CANDIDACY OF ABRAHAM MULTER  ...  , THIS MATTER NOW MIGHT
BE PROPERLY DISMISSED FOR MOOTNESS."  THIS DISPUTE WILL BE PART OF THE
ISSUES TO BE DECIDED BY THE DISTRICT COURT ON THE REMAND.  SEE N. 3,
SUPRA.  MULTER HAS SINCE BEEN ELECTED TO THE SUPREME COURT OF NEW YORK
AND WILL TAKE OFFICE ON JANUARY 1, 1968.  NEW YORK TIMES, P. 31, COL.
2, NOVEMBER 8, 1967. 

FN17  OUR DISCUSSION OF THE ISSUE OF INJUNCTIVE RELIEF IN DOMBROWSKI
IS AT 380 U.S., AT 483-489, AND OUR DISCUSSION OF THE ISSUE OF
ABSTENTION IS AT 489-492. 

MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT. 

I AGREE THAT, IN THE CIRCUMSTANCES OF THIS CASE, THE DISTRICT COURT
SHOULD NOT HAVE DECLINED TO ADJUDICATE APPELLANT'S CONSTITUTIONAL
CLAIMS.  I AM, HOWEVER, CONSTRAINED BY MY UNCERTAINTY AS TO THE
IMPLICATIONS OF CERTAIN PORTIONS OF THE COURT'S OPINION TO STATE MY
VIEWS SEPARATELY. 

THIS COURT HAS REPEATEDLY INDICATED THAT "ABSTENTION" IS APPROPRIATE
"WHERE THE ORDER TO THE PARTIES TO REPAIR TO THE STATE COURT WOULD
CLEARLY SERVE ONE OF TWO IMPORTANT COUNTERVAILING INTERESTS:  EITHER
THE AVOIDANCE OF A PREMATURE AND PERHAPS UNNECESSARY DECISION OF A
SERIOUS FEDERAL CONSTITUTIONAL QUESTION, OR THE AVOIDANCE OF THE HAZARD
OF UNSETTLING SOME DELICATE BALANCE IN THE AREA OF FEDERAL-STATE
RELATIONSHIPS."  LOUISIANA POWER & LIGHT CO. V. CITY OF THIBODAUX, 360
U.S. 25, 32 (DISSENTING OPINION).  SEE GENERALLY HARRISON V. NAACP, 360
U.S. 167; COUNTY OF ALLEGHENY V. FRANK MASHUDA CO., 360 U.S. 185, 188
189.  THE FIRST OF THESE INTERESTS HAS BEEN FOUND IN CASES IN WHICH THE
FEDERAL CONSTITUTIONAL ISSUE MIGHT BE MOOTED OR "PRESENTED IN A
DIFFERENT POSTURE" (FN1) BY A STATE COURT DETERMINATION OF PERTINENT
STATE LAW.  SEE, E.G.,  CHICAGO V. FIELDCREST DAIRIES, INC., 316 U.S.
168; SPECTOR MOTOR SERVICE, INC. V. MCLAUGHLIN, 323 U.S. 101; ALABAMA
STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450.  THE SECOND OF
THESE INTERESTS HAS BEEN FOUND, FOR EXAMPLE, IN SITUATIONS IN WHICH THE
EXERCISE OF JURISDICTION BY A FEDERAL COURT WOULD DISRUPT A STATE
ADMINISTRATIVE PROCESS, BURFORD V. SUN OIL CO., 319 U.S. 315; INTERFERE
WITH THE COLLECTION OF STATE TAXES, TOOMER V. WITSELL, 334 U.S. 385,
392; OR OTHERWISE CREATE "NEEDLESS FRICTION" BETWEEN THE ENFORCEMENT OF
STATE AND FEDERAL POLICIES.  LOUISIANA POWER & LIGHT CO. V. CITY OF
THIBODAUX, SUPRA, AT 33.  SEE ALSO HARRISON V. NAACP, SUPRA. 

I AGREE THAT THE PRESENT SITUATION IS WITHIN NONE OF THESE
CATEGORIES, AND THAT THE DISTRICT COURT SHOULD THEREFORE NOT HAVE
DISMISSED, BUT PROCEEDED TO JUDGMENT ON THE ISSUES IN THE CASE.  (FN2)
IN PARTICULAR, I CAN FIND IN THIS STATUTE NO ROOM FOR A STATE
CONSTRUCTION WHICH MIGHT OBVIATE THE NEED FOR A DECISION ON THE
CONSTITUTIONAL ISSUE.  IF, HOWEVER, THE OPINION OF THE COURT IS
INTENDED TO SUGGEST THAT THE CENTRAL, OR EVEN A PRINCIPAL, ISSUE IN
DECIDING THE PROPRIETY OF ABSTENTION IS WHETHER THE COMPLAINT HAS
ALLEGED "OVERBREADTH," OR ONLY "VAGUENESS," WITH RESPECT TO THE NEW
YORK STATUTE IN QUESTION, I CANNOT AGREE.  MY REASONS ARE THREE. 
FIRST, NEITHER PRINCIPLE HAS EVER BEEN DEFINITIVELY DELIMITED BY THIS
COURT; A DOCTRINE BUILT UPON THEIR SUPPOSED DIFFERENCES WOULD BE LIKELY
TO FOUNDER FOR LACK OF A FOUNDATION.  SEE GENERALLY, NOTE, THE VOID-FOR
VAGUENESS DOCTRINE IN THE SUPREME COURT, 109 U. PA. L. REV. 67. 
SECOND, THERE IS NO REASON TO SUPPOSE THAT A CASE INVOLVING ALLEGATIONS
OF OVERBREADTH WOULD INEVITABLY BE INAPPROPRIATE FOR ABSTENTION; THE
FEDERAL COURT MIGHT NONETHELESS REASONABLY CONSIDER THAT ITS EXERCISE
OF JURISDICTION WOULD CREATE "NEEDLESS FRICTION" WITH STATE OFFICIALS,
LOUISIANA POWER & LIGHT CO. V. CITY OF THIBODAUX, SUPRA, AT 33; OR IT
MIGHT REASONABLY CONCLUDE THAT A STATE COURT DETERMINATION WOULD
PRESENT THE FEDERAL ISSUES "IN A DIFFERENT POSTURE."  COUNTY OF
ALLEGHENY V. FRANK MASHUDA CO., SUPRA, AT 189.  THIRD, SUCH A STANDARD
MIGHT IN EFFECT REDUCE THE ABSTENTION DOCTRINE TO A PLEADER'S OPTION;
THE FUNDAMENTAL INTERESTS SERVED BY THE DOCTRINE WOULD BE JETTISONED
WHENEVER A COMPLAINANT HAD SUFFICIENT FORESIGHT TO INSERT INTO HIS
PLEADING AN ALLEGATION OF OVERBREADTH.  I CAN SEE NO PROPER ALTERNATIVE
TO A CAREFUL EXAMINATION, IN LIGHT OF THE INTERESTS SERVED BY
ABSTENTION, OF THE CIRCUMSTANCES OF EACH CASE. 

I AGREE WITH THE COURT, SUBSTANTIALLY FOR THE REASONS GIVEN IN ITS
OPINION, THAT WHETHER OR NOT INJUNCTIVE RELIEF MIGHT ULTIMATELY PROVE
APPROPRIATE IN THIS INSTANCE IS NOT A PERTINENT QUESTION AT THIS STAGE
OF THE MATTER. 

I ACCORDINGLY CONCUR IN THE JUDGMENT OF THE COURT, BUT IN DOING SO
WISH TO EMPHASIZE THAT, LIKE THE COURT, I INTIMATE NO VIEW WHATEVER
UPON THE MERITS OF THE CONSTITUTIONAL CHALLENGE TO THIS STATUTE. 

FN1  COUNTY OF ALLEGHENY V. FRANK MASHUDA CO., SUPRA, AT 189. 

FN2  UNLIKE THE COURT, I OBTAIN NO ASSISTANCE FOR THIS CONCLUSION
FROM THE UBIQUITOUS AND SLIPPERY "CHILLING EFFECT" DOCTRINE.  APPELLANT
MIGHT HAVE SOUGHT IN THE STATE COURTS THE DECLARATORY RELIEF HE NOW
ASKS.  N.Y. CIV. PRAC.  SEC.  3001.  GIVEN THE STATE COURTS'
DISPOSITION OF APPELLANT'S EARLIER PROSECUTION, HE CAN SCARCELY
MAINTAIN THAT THOSE COURTS WOULD NOT PROMPTLY PROVIDE ANY RELIEF TO
WHICH HE IS ENTITLED.  ABSENT SUCH ALLEGATIONS, IT IS DIFFICULT TO SEE
HOW THAT DOCTRINE CAN HAVE THE SLIGHTEST RELEVANCE.  SEE DOMBROWSKI V.
PFISTER, 380 U.S. 479, 499 (DISSENTING OPINION).  IN THESE
CIRCUMSTANCES, TO APPLY THE AMORPHOUS CHLLING-EFFECT DOCTRINE WOULD
SERVE ONLY TO CHILL THE INTERESTS SOUGHT TO BE MAINTAINED BY
ABSTENTION. 
..END :






















UNITED STATES V. LOUISIANA 389 U.S. 155 


NO. 9 ORIG.  ARGUED OCTOBER 9, 1967.  - DECIDED DECEMBER 4, 1967. 


THE SUBMERGED LANDS ACT, WHICH UNCONDITIONALLY PERMITS EACH COASTAL
STATE TO CLAIM A SEAWARD BOUNDARY THREE GEOGRAPHICAL MILES FROM ITS
COASTLINE, ALLOWS A STATE BORDERING ON THE GULF OF MEXICO TO CLAIM ITS
SEAWARD "BOUNDARY AS IT EXISTED AT THE TIME SUCH STATE BECAME A MEMBER
OF THE UNION."  THE LATTER GRANT, WHICH IS THUS CONDITIONED ON A
STATE'S PRIOR HISTORY, IS SUBJECT TO A THREE-LEAGUE MAXIMUM
LIMITATION.  IN UNITED STATES V. LOUISIANA, 363 U.S. 1 (1960), THIS
COURT HELD THAT THE STATE OF TEXAS QUALIFIED FOR THE THREE-LEAGUE GRANT
BUT DID NOT DETERMINE THE COASTLINE FROM WHICH THE GRANT WAS TO BE
MEASURED.  TEXAS NOW MAKES THE CLAIM, WHICH IS DISPUTED BY THE UNITED
STATES, THAT, FOR PURPOSES OF THE THREE-LEAGUE GRANT, ITS COASTLINE
EXTENDS TO THE SEAWARD EDGE OF ARTIFICIAL JETTIES IN THE GULF AND THAT
CONSEQUENTLY IT OWNS CERTAIN SUBMERGED LANDS LYING MORE THAN THREE
LEAGUES FROM ITS NATURAL SHORELINE.  HELD:  TEXAS' CLAIM UNDER THE
THREE-LEAGUE GRANT MUST BE MEASURED BY THE BOUNDARY WHICH EXISTED IN
1845, WHEN TEXAS ENTERED THE UNION, AND CANNOT BE MEASURED FROM
ARTIFICIAL JETTIES BUILT LONG THEREAFTER.  PP. 157-161. 

UNITED STATES V. LOUISIANA ET AL. 

BILL OF COMPLAINT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN UNITED STATES V. CALIFORNIA (THE FIRST CALIFORNIA CASE), 332 U.S.
19 (1947), WE HELD THAT THE STATES DID NOT OWN THE SUBMERGED LANDS OFF
THEIR COASTLINES AND THAT THE UNITED STATES HAD PARAMOUNT RIGHTS IN
THESE LANDS.  SOME STATES VIOLENTLY OBJECTED TO THIS DECISION CLAIMING
THAT THEY HAD HISTORICALLY OWNED A LEAST OUT TO A DISTANCE OF THREE
GEOGRAPHICAL MILES FROM THEIR COASTLINES; OTHERS ASSERTED A HISTORICAL
CLAIM OUT TO THREE MARINE LEAGUES FROM THEIR COASTLINES.  RESPONDING TO
THESE OBJECTIONS, CONGRESS IN 1953 PASSED THE SUBMERGED LANDS ACT, 67
STAT. 29, 43 U.S.C. SECS 1301-1315, WHICH MAKES TWO ENTIRELY SEPARATE
TYPES OF GRANTS OF SUBMERGED LAND TO THE STATES.  THE FIRST IS AN
UNCONDITIONAL GRANT ALLOWING EACH COASTAL STATE TO CLAIM A SEAWARD
BOUNDARY OUT TO A LINE THREE GEOGRAPHICAL MILES DISTANT FROM ITS "COAST
LINE."  THE SECOND IS A GRANT CONDITIONED UPON A STATE'S PRIOR
HISTORY.  IT ALLOWS THOSE STATES BORDERING ON THE GULF OF MEXICO, WHICH
AT THE TIME OF THEIR ENTRY INTO THE UNION HAD A SEAWARD BOUNDARY BEYOND
THREE MILES, TO CLAIM THIS HISTORICAL BOUNDARY "AS IT EXISTED AT THE
TIME SUCH STATE BECAME A MEMBER OF THE UNION," BUT WITH THE MAXIMUM
LIMITATION THAT NO STATE MAY CLAIM MORE THAN "THREE MARINE LEAGUES"
(APPROXIMATELY NINE MILES).  IN UNITED STATES V. LOUISIANA, 363 U.S. 1
(1960), WE HELD THAT TEXAS QUALIFIED FOR THIS CONDITIONAL THREE-LEAGUE
GRANT.  WE DID NOT DECIDE, HOWEVER, WHAT IS THE "COAST LINE" FROM WHICH
THIS THREE-LEAGUE GRANT IS MEASURED.  THAT QUESTION WAS SPECIFICALLY
RESERVED.  (FN1)  TEXAS NOW CLAIMS THAT, FOR PURPOSES OF THE THREE
LEAGUE GRANT, ITS COASTLINE EXTENDS TO THE SEAWARD EDGE OF ARTIFICIAL
JETTIES CONSTRUCTED BY IT IN THE GULF OF MEXICO AND THAT IT IS ENTITLED
TO LEASE CERTAIN SUBMERGED LANDS, PORTIONS OF WHICH LIE MORE THAN THREE
LEAGUES FROM ANY PART OF THE NATURAL SHORELINE OF TEXAS, BUT WITHIN
THREE LEAGUES OF THESE JETTIES.  THE UNITED STATES CLAIMS THESE
PORTIONS FOR ITSELF AND INVOKES OUR ORIGINAL JURISDICTION FOR A
SUPPLEMENTAL DECREE TO THAT EFFECT.  THE QUESTION WE MUST DECIDE IS
WHETHER CONGRESS INTENDED THAT THIS GRANT, BASED AS IT IS ON THE
HISTORICAL BOUNDARIES OF THE STATE, BE MEASURED FROM ARTIFICIAL JETTIES
CONSTRUCTED MANY YEARS AFTER THE STATE'S ENTRY INTO THE UNION.  FOR
REASONS TO BE STATED WE REJECT TEXAS' CONTENTION AND HOLD, AS THE ACT
CLEARLY SAYS, THAT ITS THREE-LEAGUE CLAIM MUST BE MEASURED TO "SUCH
BOUNDARY AS IT EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE
UNION." 

TEXAS RELIES HEAVILY ON THIS COURT'S PRIOR DECISION IN THE SECOND
CALIFORNIA CASE, UNITED STATES V. CALIFORNIA, 381 U.S. 139 (1965).  OUR
OPINION THERE, HOWEVER, DEALT, NOT WITH THE CONDITIONAL STATUTORY GRANT
WE HAVE HERE, BUT WITH THE OTHER UNCONDITIONAL GRANT - THE
CONGRESSIONAL CREATION OF A NEW AND STANDARD THREE-MILE SEAWARD
BOUNDARY FOR ALL COASTAL STATES.  WHILE SOME STATES IN THE PAST HAD
CLAIMED THREE-MILE SEAWARD BOUNDARIES - A CLAIM EXPLICITLY REJECTED BY
THIS COURT IN THE FIRST CALIFORNIA CASE, SUPRA - CONGRESS MADE IT CLEAR
BY THE FOLLOWING WORDING IN SEC. 4 OF THE SUBMERGED LANDS ACT THAT IT
WAS ESTABLISHING A NEW STANDARD BOUNDARY FOR ALL COASTAL STATES:  "ANY
STATE ADMITTED SUBSEQUENT TO THE FORMATION OF THE UNION WHICH HAS NOT
ALREADY DONE SO MAY EXTEND ITS SEAWARD BOUNDARIES TO A LINE THREE
GEOGRAPHICAL MILES DISTANT FROM ITS COAST LINE  ...  ."  67 STAT. 31,
43 U.S.C. SEC 1312.  THE DECISION IN THE SECOND CALIFORNIA CASE, SUPRA,
HELD THAT CONGRESS HAD LEFT IT UP TO THIS COURT TO DEFINE THE "COAST
LINE" FROM WHICH THE STANDARD THREE-MILE GRANT WAS TO BE MEASURED.  THE
COURT THEN BORROWED THE INTERNATIONAL DEFINITION OF COASTLINE IN THE
CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE, (1964) 15
U.S.T. (PT. 2) 1607, T.I.A.S. NO. 5639, USED BY THE UNITED STATES IN
ITS FOREIGN RELATIONS WITH OTHER COUNTRIES, REASONING THAT "THIS
ESTABLISHES A SINGLE COASTLINE FOR BOTH THE ADMINISTRATION OF THE
SUBMERGED LANDS ACT AND THE CONDUCT OF OUR FUTURE INTERNATIONAL
RELATIONS  ...  .  FURTHERMORE THE COMPREHENSIVENESS OF THE CONVENTION
PROVIDES ANSWERS TO MANY OF THE LESSER PROBLEMS RELATED TO COASTLINES
WHICH, ABSENT THE CONVENTION, WOULD BE MOST TROUBLESOME."  UNITED
STATES V. CALIFORNIA, 381 U.S. 139, 165 (1965). 

ARTICLE 8 OF THIS CONVENTION MAKES THE FOLLOWING PROVISION FOR
ARTIFICALLY CONSTRUCTED EXTENSIONS INTO THE SEA:  "FOR THE PURPOSE OF
DELIMITING THE TERRITORIAL SEA, THE OUTERMOST PERMANENT HARBOUR WORKS
WHICH FORM AN INTEGRAL PART OF THE HARBOUR SYSTEM SHALL BE REGARDED AS
FORMING PART OF THE COAST."  (1964) 15 U.S.T. (PT. 2) 1607, 1609. 
THUS, IT IS CLEAR THAT IN THE CASE OF THE THREE-MILE UNCONDITIONAL
GRANT ARTIFICIAL JETTIES ARE A PART OF THE COASTLINE FOR MEASUREMENT
PURPOSES, AND IF TEXAS WERE CLAIMING UNDER THE STANDARD THREE-MILE
GRANT, ITS ARGUMENT REGARDING THE JETTIES WOULD BE FAR MORE
PERSUASIVE. 

TEXAS HAS NOT CLAIMED THE STANDARD THREE-MILE GRANT, HOWEVER, BUT HAS
ASSERTED OWNERSHIP OVER THREE MARINE LEAGUES OR APPROXIMATELY NINE
MILES OF SUBMERGED LAND, AND THIS COURT HAS SUSTAINED THAT CLAIM. 
UNITED STATES V. LOUISIANA, SUPRA.  THIS IT WAS ALLOWED TO DO UNDER
THAT PART OF THE ACT PROVIDING THE SPECIAL CONDITIONAL HISTORICAL
GRANT.  THERE IS A CRITICAL DISTINCTION, HOWEVER, BETWEEN THIS
HISTORICAL GRANT AND THE UNCONDITIONAL THREE-MILE GRANT.  THE THREE
MILE GRANT INVOLVED IN THE SECOND CALIFORNIA CASE IS NOT KEYED TO THE
STATE'S BOUNDARY AS OF ANY PARTICULAR DATE, BUT THE THREE-LEAGUE GRANT
IS KEYED TO A STATE'S BOUNDARY AS OF THE DATE IT ENTERED THE UNION. 
THIS IS CLEAR FROM THE WORDS OF SEC. 2(A) OF THE ACT WHICH STATE THAT
THE HISTORICAL GRANT EXTENDS "TO THE BOUNDARY LINE OF EACH SUCH STATE
WHERE IN ANY CASE SUCH BOUNDARY AS IT EXISTED AT THE TIME SUCH STATE
BECAME A MEMBER OF THE UNION  ...  EXTENDS SEAWARD (OR INTO THE GULF OF
MEXICO) BEYOND THREE GEOGRAPHICAL MILES  ...  ."  67 STAT. 29, 43
U.S.C. SEC 1301.  THIS MEANING IS REINFORCED BY THE WORDING OF SEC 4
WHICH STATES THAT "NOTHING IN THIS SECTION IS TO BE CONSTRUED AS
QUESTIONING OR IN ANY MANNER PREJUDICING THE EXISTENCE OF ANY STATE'S
SEAWARD BOUNDARY BEYOND THREE GEOGRAPHICAL MILES IF IT WAS SO PROVIDED
BY ITS CONSTITUTION OR LAWS PRIOR TO OR AT THE TIME SUCH STATE BECAME A
MEMBER OF THE UNION  ...  ."  43 U.S.C. SEC 1312.  THIS HISTORICAL
GRANT OF THREE MARINE LEAGUES IS, THROUGH SEC 2(B) OF THE ACT, MADE TO
APPLY ONLY TO THOSE STATES BORDERING THE GULF OF MEXICO.  43 U.S.C. SEC
1301. 

IN EFFECT WHAT CONGRESS HAS DONE IS TO TAKE INTO CONSIDERATION THE
SPECIAL HISTORICAL SITUATIONS OF A FEW GULF STATES AND PROVIDE THAT
WHERE THEY CAN PROVE OWNERSHIP TO SUBMERGED LANDS IN EXCESS OF THREE
MILES AT THE TIME THEY ENTERED THE UNION, THESE HISTORICAL LANDS WILL
BE GRANTED TO THEM UP TO A LIMITATION OF THREE MARINE LEAGUES.  NO NEW
STATE BOUNDARY IS BEING CREATED, BUT A STATE WHICH QUALIFIES SIMPLY IS
BEING GIVEN THE SAME AREA IT HAD WHEN IT ENTERED THE UNION.  UNLIKE THE
THREE-MILE GRANT WHERE THIS COURT HELD THAT CONGRESS LEFT BOUNDARY
DEFINITIONS UP TO IT, HERE CONGRESS GRANTED LAND THE BOUNDARIES OF
WHICH ARE DETERMINED BY FIXED HISTORICAL FACTS.  THIS IS CLEAR FROM THE
WORDING OF THE STATUTE ITSELF.  IN MAKING THE THREE-MILE GRANT CONGRESS
SPEAKS IN TERMS OF "THREE GEOGRAPHICAL MILES DISTANT FROM ITS COAST
LINE."  43 U.S.C. SEC 1312.  IN THE THREE-LEAGUE GRANT, HOWEVER, THE
TERM "COAST LINE" IS OMITTED AND IN ITS PLACE THE WORD "BOUNDARY" IS
USED WITH THE FOLLOWING EXPRESS QUALIFICATION:  "AS IT EXISTED AT THE
TIME SUCH STATE BECAME A MEMBER OF THE UNION  ...  ."  NO DEFINITIONS
ARE REQUIRED BY THIS COURT AND THERE IS NO NEED TO RESORT TO
INTERNATIONAL LAW; TEXAS HAS SIMPLY BEEN GIVEN THAT AMOUNT OF SUBMERGED
LAND IT OWNED WHEN IT ENTERED THE UNION. 

THUS, THE STATE OF TEXAS, WHICH HAS BEEN ALLOWED BY THE UNITED STATES
TO CLAIM A LARGER PORTION OF SUBMERGED LANDS BECAUSE OF ITS HISTORICAL
SITUATION, IS LIMITED IN ITS CLAIM BY FIXED HISTORICAL BOUNDARIES.  IT
MAY NOT COMBINE THE BEST FEATURES OF BOTH GRANTS IN ORDER TO CARVE OUT
THE LARGEST POSSIBLE AREA FOR ITSELF.  IF IT WISHES TO TAKE ADVANTAGE
OF THE PRESENT THREE-MILE GRANT THEN IT MAY USE ITS PRESENT COASTLINE
AS DEFINED BY ARTICLE 8 OF THE CONVENTION ON THE TERRITORIAL SEA AND
THE CONTIGUOUS ZONE, SUPRA, TO INCLUDE ARTIFICIAL JETTIES.  BUT IF
TEXAS WISHES TO TAKE UNDER THE MORE EXPANSIVE HISTORICAL GRANT, IT MUST
USE BOUNDARIES AS THEY EXISTED IN 1845 WHEN TEXAS WAS ADMITTED TO THE
UNION.  AT THAT TIME THERE WERE NO ARTIFICIAL JETTIES IN EXISTENCE SO
OBVIOUSLY THEY ARE NOT CONSIDERED. 

IT CANNOT BE IGNORED THAT THE APPLICATION OF THE CONVENTION TO TEXAS
HERE WOULD ALLOW TEXAS, UNLIKE ALL OTHER STATES EXCEPT FLORIDA,  (FN2)
TO EXPAND ITS OWN STATE BOUNDARIES BEYOND THE CONGRESSIONAL LIMITATION
SIMPLY BECAUSE OF A RULE GOVERNING THE RELATIONSHIPS BETWEEN MARITIME
NATIONS OF THE WORLD.  THIS IS A DOMESTIC DISPUTE WHICH MUST BE
GOVERNED BY THE CONGRESSIONAL GRANT.   THERE IS NO REASON WHY AN
INTERNATIONAL TREATY SHOULD BE APPLIED WHEN IT SIMPLY WORKS TO TAKE
AWAY LAND FROM THE UNITED STATES IN ORDER TO GIVE TO TEXAS MORE LAND
THAN IT EVER CLAIMED HISTORICALLY.  WE CANNOT BELIEVE THAT CONGRESS
INTENDED SUCH A RESULT. 

THUS, WE HOLD TODAY THAT THE CONGRESSIONAL GRANT TO TEXAS OF THREE
MARINE LEAGUES OF SUBMERGED LAND IS MEASURED BY THE HISTORICAL STATE
BOUNDARIES "AS THEY EXISTED" IN 1845 WHEN TEXAS WAS ADMITTED INTO THE
UNION.  THE UNITED STATES IS ENTITLED TO A SUPPLEMENTAL DECREE TO THIS
EFFECT, AND WE GRANT 60 DAYS TO EACH OF THE PARTIES IN WHICH TO SUBMIT
PROPOSED SUPPLEMENTAL DECREES FOR OUR CONSIDERATION. 

FN1  LOUISIANA WAS THE ONLY STATE TO RAISE THE QUESTION AND OUR
ANSWER WAS AS FOLLOWS: "WE DECIDE NOW ONLY THAT LOUISIANA IS ENTITLED
TO SUBMERGED-LAND RIGHTS TO A DISTANCE NO GREATER THAN THREE
GEOGRAPHICAL MILES FROM ITS COASTLINES, WHEREVER THOSE LINES MAY
ULTIMATELY BE SHOWN TO BE."  363 U.S., AT 79. 

FN2  IN UNITED STATES V. FLORIDA, 363 U.S. 121 (1960), WE HELD THAT
FLORIDA ALSO WAS ENTITLED TO THE HISTORICAL THREE-LEAGUE GRANT.  SINCE
HISTORICAL CLAIMS BY THE OTHER GULF STATES OF LOUISIANA, MISSISSIPPI,
AND ALABAMA WERE REJECTED IN UNITED STATES V. LOUISIANA, 363 U.S. 1
(1960), TEXAS AND FLORIDA ARE THE ONLY TWO STATES WHICH QUALIFY FOR THE
EXPANSIVE GRANT OF THREE MARINE LEAGUES INSTEAD OF THE GRANT OF THREE
MILES. 

THE CHIEF JUSTICE AND MR. JUSTICE MARSHALL TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

THE SUBMERGED LANDS ACT IN SEC 3(A) GRANTS TO THE STATES "OWNERSHIP
OF THE LANDS BENEATH NAVIGABLE WATERS WITHIN THE BOUNDARIES OF THE
RESPECTIVE STATES  ...  ."  67 STAT. 30, 43 U.S.C. SEC 1311.  THE
CRITICAL TERM "BOUNDARIES" IS GIVEN THREE ALTERNATIVE DEFINITIONS IN
SEC. 2(B) OF THE ACT: 

1.  "BOUNDARIES  ...  AS THEY EXISTED AT THE TIME SUCH STATE BECAME A
MEMBER OF THE UNION," OR: 

2.  "BOUNDARIES  ...  AS HERETOFORE APPROVED BY THE CONGRESS," OR: 

3.  "BOUNDARIES  ...  AS EXTENDED OR CONFIRMED PURSUANT TO SECTION
4," I.E., "THREE GEOGRAPHICAL MILES DISTANT FROM THE STATE'S COAST LINE
...  ."  (FN1) 

WE DEAL HERE WITH THE FIRST OF THESE THREE ALTERNATIVE DEFINITIONS OF
"BOUNDARIES" IN SEC. 2(B).  IN UNITED STATES V. LOUISIANA, 363 U.S. 1,
THIS COURT UPHELD TEXAS' CLAIM TO A HISTORIC BOUNDARY BASED ON THE
REPUBLIC OF TEXAS BOUNDARY ACT OF 1836, WHICH WAS IN EFFECT AT THE TIME
OF THE ANNEXATION RESOLUTION OF 1845.  THAT ACT DESCRIBED TEXAS'
BOUNDARY IN THE GULF OF MEXICO AS RUNNING "THREE LEAGUES FROM LAND." 

TEXAS NOW CONTENDS THAT THE LOCATION OF ITS HISTORIC BOUNDARY IS TO
BE DETERMINED BY MEASURING OUT THREE LEAGUES FROM HARBOR JETTIES
CONSTRUCTED SOMETIME AFTER 1845.  THIS SEEMINGLY ANOMALOUS RESULT IS
REQUIRED, TEXAS ARGUES, BY THE SECOND CALIFORNIA CASE, UNITED STATES V.
CALIFORNIA, 381 U.S. 139.   I CANNOT AGREE.  THE SECOND CALIFORNIA CASE
DEALT WITH A SINGLE ISSUE:  THE MEANING OF THE TERM "COAST LINE" FOR
PURPOSES OF THE THIRD ALTERNATIVE DEFINITION OF "BOUNDARIES" IN SEC.
2(B).  (FN2) BUT TEXAS DOES NOT CLAIM A BOUNDARY UNDER THAT DEFINITION,
AND THE TERM "COAST LINE" SIMPLY DOES NOT APPEAR IN THE DEFINITION OF
"BOUNDARIES" UNDER WHICH TEXAS DOES ASSERT ITS CLAIM.  THE SECOND
CALIFORNIA CASE IS, THEREFORE, BASICALLY IRRELEVANT. 

MY BROTHER HARLAN REACHES THE RESULT URGED BY TEXAS BUT FOR VERY
DIFFERENT REASONS.  HE CONSTRUES THE STATUTORY PHRASE "BOUNDARIES AS
THEY EXISTED" AS REFERRING TO THE "THREE LEAGUES FROM LAND" FORMULA OF
THE TEXAS BOUNDARY ACT, AND THEN APPLIES THIS 1845 FORMULA TO PRESENT
TEXAS SHORE CONDITIONS.  THE COURT, ON THE OTHER HAND, CONSTRUES
"BOUNDARIES AS THEY EXISTED" AS REFERRING, NOT TO THE 1845 FORMULA, BUT
TO A PARTICULAR LINE - THE LINE RESULTING FROM THE APPLICATION OF THE
1845 FORMULA TO 1845 CONDITIONS. 

THE DIFFERENCE BETWEEN MAJORITY AND DISSENT THUS TURNS ON A NARROW
QUESTION:  WHETHER THE WORD "BOUNDARIES" IN THE FIRST ALTERNATIVE
DEFINITION IN SEC. 2(B) REFERS TO AN OPERATIVE DEFINITION OR TO A
LINE.  I ADOPT THE LATTER CONSTRUCTION BECAUSE I THINK THE FORMER PLAYS
HAVOC WITH THE ORDINARY UNDERSTANDING OF THE WORD "BOUNDARIES" AND
BECAUSE THE LEGISLATIVE HISTORY DOES NOT PERSUADE ME THAT CONGRESS
MEANT TO USE THAT WORD IN AN UNUSUAL SENSE.  IT IS, OF COURSE, TRUE
THAT BOUNDARIES MAY SHIFT WHEN A CONSTANT OPERATIVE DEFINITION IS
APPLIED TO CHANGING CONDITIONS.  BUT THE ORDINARY UNDERSTANDING OF THE
WORD "BOUNDARIES" IS THE RESULTANT LINE, NOT THE OPERATIVE DEFINITION. 
FINALLY, WHEN THE PHRASE "AS THEY EXISTED" IS APPENDED TO THE WORD
"BOUNDARIES," IT SIMPLY DOES NOT MAKE SEMANTIC SENSE TO INTERPRET
"BOUNDARIES" AS A GENERAL DEFINITION RATHER THAN A PARTICULAR LINE. 
FOR THESE REASONS, I CONCUR IN THE CONCLUSIONS OF THE COURT IN THIS
CASE.    FN1  A PROVISO TO SEC. 2(B) ESTABLISHES A MAXIMUM FOR ANY OF
THE THREE BOUNDARY DEFINITIONS:  "IN NO EVENT SHALL THE TERM
'BOUNDARIES'  ...  BE INTERPRETED AS EXTENDING FROM THE COAST LINE MORE
THAN THREE GEOGRAPHICAL MILES INTO THE ATLANTIC OCEAN OR THE PACIFIC
OCEAN, OR MORE THAN THREE MARINE LEAGUES INTO THE GULF OF MEXICO  ...
." 

FN2  PRESUMABLY THE CONSTRUCTION THERE ADOPTED WOULD ALSO APPLY TO
THE TERM "COAST LINE" IN THE MAXIMUM PROVISO OF SEC. 2(B), N. 1, SUPRA,
BUT THE UNITED STATES DOES NOT CONTEND THAT TEXAS' CLAIM EXCEEDS THE
SEC. 2(B) MAXIMUM. 

MR. JUSTICE HARLAN, DISSENTING. 

AT THE OUTSET, IT IS WORTH REMARKING THAT THIS CASE IS BUT AN
EPILOGUE TO OUR DECISION IN UNITED STATES V. LOUISIANA, 363 U.S. 1, AND
ARISES OUT OF THE RESERVATION OF JURISDICTION IN THIS COURT'S DECREE IN
THAT PROCEEDING.  IT IS NOT A NEW CASE IN ITS OWN RIGHT.  HAD THE COURT
PAUSED TO REMIND ITSELF OF THAT FACT IT MIGHT HAVE BEEN LESS READY TO
CUT LOOSE FROM BASIC THINGS THAT WERE DECIDED THERE.  FOR REASONS
STATED IN THIS OPINION, I BELIEVE THAT THE DECISION UPON THE ISSUE NOW
IN DISPUTE SHOULD BE IN FAVOR OF THE TEXAS POSITION. 

THE QUESTION IN THIS PROCEEDING IS WHETHER ARTIFICIAL JETTIES,
CONSTITUTING PERMANENT HARBOR WORKS, ARE TO BE RECKONED AS PART OF THE
BASE LINE IN CALCULATING THE THREE-LEAGUE GRANT OF SUBMERGED LANDS IN
THE GULF OF MEXICO TO WHICH WE HAVE ALREADY HELD TEXAS IS ENTITLED
UNDER THE SUBMERGED LANDS ACT.  THE OPINIONS OF THE MAJORITY DECLARE
THAT THEY MAY NOT BE, BY A BEGUILINGLY SIMPLE PROCESS OF REASONING THAT
BOILS DOWN TO THIS SYLLOGISM: THE OUTWARD LIMIT OF TEXAS' THREE-LEAGUE
GRANT IS DETERMINED UNDER THE ACT BY THE LOCATION OF ITS MARITIME
BOUNDARY "AS IT EXISTED" IN 1845, WHEN IT WAS ADMITTED TO THE UNION;
THESE HARBOR WORKS WERE NOT IN EXISTENCE AT THAT TIME; THEREFORE, THESE
WORKS PLAY NO PART IN FIXING THE LOCATION OF THE BOUNDARY.  OUR
DECISION IN UNITED STATES V. CALIFORNIA, 381 U.S. 139, WHEREIN WE HELD
THAT SIMILAR HARBOR WORKS WERE INCLUDABLE IN CALCULATING THE OUTWARD
LIMIT OF CALIFORNIA'S SUBMERGED LANDS GRANT, HAS NO APPLICATION, IT IS
SAID, BECAUSE CALIFORNIA'S GRANT WAS NOT DEPENDENT UPON ITS "ADMISSION"
BOUNDARY. 

THE MAJOR PREMISE OF THE MAJORITY'S REASONING IS, I BELIEVE,
DEMONSTRABLY WRONG.  THE ASSUMPTION THAT THE STATUTORY TERM "AS IT
EXISTED" WAS INTENDED TO FREEZE TEXAS' SEAWARD BOUNDARY (AND HENCE THE
EXTENT OF THE ACT'S GRANT) AS OF 1845 IS FUNDAMENTALLY INCONSISTENT
WITH THE BASIS ON WHICH WE HELD IN THE INITIAL STATE OF THIS CASE THAT
TEXAS WAS ENTITLED TO A THREE-LEAGUE GRANT AT ALL.  THE COURT'S PRIOR
OPINION UPHELD THE CLAIMS OF TEXAS ONLY BECAUSE TEXAS NOW HAS A VALID
STATE BOUNDARY "THREE LEAGUES FROM LAND."  (FN1)  THIS PRESENT BOUNDARY
IS ENTIRELY INDEPENDENT OF THE SUBMERGED LANDS ACT, WHICH NEITHER
CREATED IT NOR AFFECTED ITS LOCATION.  THE QUESTION BEFORE THE COURT AT
THIS TIME IS NOT WHERE THAT BOUNDARY WAS IN 1845, BUT WHERE IT IS NOW. 

THE WORDS "AS IT EXISTED" WERE FULLY AND CAREFULLY INTERPRETED IN THE
COURT'S EARLIER OPINION, AND THEY WERE HELD TO SERVE A PURPOSE
DIFFERENT FROM AND IRRELEVANT TO THE DETERMINATION OF THE LOCATION OF
ANY STATE BOUNDARY.  CONTRARY TO THE IMPRESSION LEFT BY TODAY'S
OPINION, THE LANGUAGE OF THE GRANT MADE IN THE SUBMERGED LANDS ACT DOES
NOT CONTAIN THESE WORDS.  THE OPERATIVE SECTION OF THE ACT SIMPLY
GRANTS TO EVERY COASTAL STATE "TITLE TO AND OWNERSHIP OF THE LANDS
BENEATH NAVIGABLE WATERS WITHIN THE BOUNDARIES OF THE RESPECTIVE
STATES, AND THE NATURAL RESOURCES WITHIN SUCH LANDS AND WATERS."  (FN2)
TO TAKE UNDER THIS LANGUAGE, A STATE MAY EITHER PROVE AN EXISTING
BOUNDARY, SUBJECT TO A LIMITATION OF THREE LEAGUES IN THE GULF OF
MEXICO AND OF THREE MILES IN THE ATLANTIC OR PACIFIC OCEAN, OR
ESTABLISH A NEW BOUNDARY THREE MILES FROM ITS COASTLINE PURSUANT TO A
SEPARATE SECTION OF THE ACT.  (FN3)  THE STATE MUST, HOWEVER, PRESENTLY
HAVE SOME BOUNDARY IN ORDER TO TAKE ANYTHING.  THE TERM "BOUNDARIES" IS
DEFINED ELSEWHERE IN THE ACT TO INCLUDE BOUNDARIES "AS THEY EXISTED AT
THE TIME SUCH STATE BECAME A MEMBER OF THE UNION, OR AS HERETOFORE
APPROVED BY THE CONGRESS."  (FN4)  THE PURPOSE OF THIS SECTION, WE
HELD, WAS SIMPLY TO RESTRICT CLAIMS TO BOUNDARIES THAT HAD, AT ONE TIME
OR ANOTHER, BEEN APPROVED BY CONGRESS.  (FN5) 

ON THE BASIS OF THIS UNDERSTANDING OF THE TERM "AS IT EXISTED," WE
HELD IN OUR PRIOR OPINION THAT THE PRESENT MARITIME BOUNDARY OF THE
STATE OF TEXAS IS DEFINED BY THE REPUBLIC OF TEXAS BOUNDARY ACT OF
1836,  (FN6)  BECAUSE THAT ACT WAS APPROVED BY CONGRESS PURSUANT TO ITS
1845 RESOLUTION OF ANNEXATION OF TEXAS.  (FN7)  THAT ACT CLAIMED FOR
TEXAS A BOUNDARY "THREE LEAGUES FROM LAND."  AS THE UNITED STATES HERE
CONCEDES, MARITIME BOUNDARIES DEFINED BY REFERENCE TO THE SHORE ARE
INHERENTLY MOBILE WITH CHANGES IN THE CONFIGURATION OF THE SHORELINE. 
HENCE THE PRESENT LOCATION OF THE BOUNDARY LINE DRAWN IN 1836 IS NOT
NECESSARILY THE SAME AS ITS LOCATION IN 1836 OR 1845.  BELOW, AFTER
PRESENTING IN SOME DETAIL THE ARGUMENT THAT THE LIMIT OF THE SUBMERGED
LANDS ACT GRANT IS THE PRESENT LOCATION OF THE HISTORICAL BOUNDARY OF
THE STATE OF TEXAS, I SHALL CONSIDER THE QUESTION WHETHER THESE
ARTIFICIAL JETTIES ARE TO BE INCLUDED IN DETERMINING THAT LOCATION. 

                                         I. 

THE COURT'S OPINION IN UNITED STATES V. LOUISIANA, SUPRA, MAKES IT
ABUNDANTLY CLEAR THAT THE QUESTION NOW BEFORE US IS THE PRESENT
LOCATION OF THE TEXAS BOUNDARY THAT WAS ACKNOWLEDGED IN 1845, AND THAT
THE WORDS "AS IT EXISTED" WERE NOT INTENDED TO ANSWER THAT QUESTION. 

                          A. THE USE OF PRESENT BOUNDARIES. 

AS THE EARLIER OPINION EXPLAINED, THE CONGRESSIONAL ASSUMPTION THAT
SOME STATES HAVE EXISTING HISTORIC BOUNDARIES WAS BASED ON THE HISTORY
OF THIS COURT'S TREATMENT OF SUBMERGED LANDS.  (FN8) THE COURT HAD
EARLY HELD THAT THE STATES OWNED THE LAND BENEATH THEIR INLAND
NAVIGABLE WATERS.  POLLARD'S LESSEE V. HAGAN, 3 HOW.  212.  FOLLOWING
THAT CASE IT WAS WIDELY BELIEVED THAT THE SAME RULE WOULD APPLY TO THE
MARGINAL SEA, THAT IS, THAT THE STATES OWNED THE LAND BENEATH THE
WATERS OF THE SEA WITHIN THEIR BOUNDARIES.  (FN9)  THIS BELIEF WAS
BASED ON TWO ASSUMPTIONS NEITHER OF WHICH WAS AUTHORITATIVELY TESTED
UNTIL THE 1940'S:  FIRST, THAT AT LEAST SOME STATES HAD VALID
BOUNDARIES IN THE SEA, AND SECOND, THAT THE STATES OWNED SUBMERGED LAND
WITHIN THEM.  IN A SERIES OF CASES BEGINNING IN 1947, THE SECOND
ASSUMPTION WAS DESTROYED BY THIS COURT:  THE UNITED STATES WAS HELD TO
HAVE PARAMOUNT RIGHTS IN OFFSHORE LANDS AS AN ATTRIBUTE OF NATIONAL
SOVEREIGNTY.  (FN10)  THE FIRST ASSUMPTION, HOWEVER, WAS EXPLICITLY
LEFT STANDING BY THOSE DECISIONS: 

"  ...  THE QUESTION HERE IS NOT THE POWER OF A STATE TO USE THE
MARGINAL SEA OR TO REGULATE ITS USE IN ABSENCE OF A CONFLICTING FEDERAL
POLICY  ...  .

      *         *         *    *         * 

"  ...  WE INTIMATE NO OPINION ON THE POWER OF A STATE TO EXTEND,
DEFINE, OR ESTABLISH ITS EXTERNAL TERRITORIAL LIMITS OR ON THE
CONSEQUENCES OF ANY SUCH EXTENSION  VIS A VIS PERSONS OTHER THAN THE
UNITED STATES  ...  .  THE MATTER OF STATE BOUNDARIES HAS NO BEARING ON
THE PRESENT PROBLEM."  (FN11) 

AS WE HELD IN THE EARLIER PHASE OF THE PRESENT CASE, CONGRESS'
PURPOSE IN THE SUBMERGED LANDS ACT WAS TO RESTORE THE SITUATION TO WHAT
IT HAD ASSUMED IT TO BE PRIOR TO 1947, AND ITS METHOD OF DOING THIS WAS
TO "QUIT-CLAIM" BACK TO THE STATES THE "PARAMOUNT RIGHTS" THAT THIS
COURT HAD FOUND TO BE AN ATTRIBUTE OF NATIONAL SOVEREIGNTY.  (FN12)
THIS QUITCLAIM, LIKE THE CASES THAT LED TO IT, HAD NOTHING TO DO WITH
THE VALIDITY OR LOCATION OF STATE MARITIME BOUNDARIES.  AS SENATOR
CORDON, THE ACTING CHAIRMAN OF THE COMMITTEE ON INTERIOR AND INSULAR
AFFAIRS AND THE BILL'S CHIEF EXPONENT IN THE SENATE, PUT THE MATTER: 

"THE STATES OF THE UNITED STATES HAVE LEGAL BOUNDARIES.  IT IS NOT A
PART OF THE POWER OR THE DUTY OF CONGRESS TO MAKE DETERMINATION WITH
REFERENCE TO THOSE BOUNDARIES, OR WHERE THOSE BOUNDARIES SHOULD LIE. 
IT IS A MATTER FOR THE COURTS TO DETERMINE, OR FOR THE UNITED STATES
...  AND  ... THE SEVERAL STATES, TO REACH AN AGREEMENT UPON.  THE
PENDING BILL DOES NOT SEEK TO INVADE EITHER PROVINCE  ...  .  WHENEVER
A QUESTION ARISES AS TO A BOUNDARY, IT WILL BE DETERMINED EXACTLY AS
ANY OTHER QUESTION IN LAW IS DETERMINED, AND THE BOUNDARY WILL BE
ESTABLISHED. 

"  ...  IT IS NOT WITHIN THE PROVINCE OF CONGRESS TO CHANGE THE
PRESENT BOUNDARIES OF TEXAS WITHOUT THE CONSENT OF THE STATE OF
TEXAS."  99 CONG. REC. 2620. 

IN THE COURT'S PRIOR OPINION IN THIS LITIGATION WE EXPRESSLY ADOPTED
THIS CONSTRUCTION OF THE ACT.   WE ACCEPTED THE THEN CONTENTION OF THE
UNITED STATES THAT THE "ACT DID NOT PURPORT TO DETERMINE, FIX, OR
CHANGE THE BOUNDARY OF ANY STATE, BUT LEFT IT TO THE COURTS TO
ASCERTAIN WHETHER A PARTICULAR STATE HAD A SEAWARD BOUNDARY."  (FN13)
WE WENT ON TO SAY, 

"WE FIND A CLEAR UNDERSTANDING BY CONGRESS THAT THE QUESTION OF
RIGHTS BEYOND THREE MILES TURNED ON THE EXISTENCE OF AN EXPRESSLY
DEFINED STATE BOUNDARY BEYOND THREE MILES.  CONGRESS WAS AWARE THAT
SEVERAL STATES CLAIMED SUCH A BOUNDARY.  TEXAS THROUGHOUT REPEATEDLY
ASSERTED ITS CLAIM THAT WHEN AN INDEPENDENT REPUBLIC ITS STATUTES
ESTABLISHED A THREE-LEAGUE MARITIME BOUNDARY, AND THAT THE UNITED
STATES RATIFIED THAT BOUNDARY WHEN TEXAS WAS ADMITTED TO THE UNION  ...
. 

"IT WAS RECOGNIZED BY CONGRESS THAT IF THE LEGAL EXISTENCE OF SUCH
BOUNDARIES COULD BE ESTABLISHED, THEY WOULD CLEARLY ENTITLE THE
RESPECTIVE STATES TO SUBMERGED LAND RIGHTS TO THAT DISTANCE UNDER AND
APPLICATION OF THE POLLARD RULE TO THE MARGINAL SEA.  HENCE  ...  THE
RIGHT OF THE GULF STATES TO PROVE BOUNDARIES IN EXCESS OF THREE MILES
WAS PRESERVED."  (FN14)

           B. THE WORDS "AS THEY EXISTED." 

IN THE FIRST PHASE OF THIS CASE, THE PROBLEM WAS WHICH, IF ANY, OF
THE FIVE GULF STATES HAD BOUNDARIES THAT WERE COGNIZABLE FOR PURPOSES
OF THE SUBMERGED LANDS ACT GRANT.  CONGRESS HAD LIMITED BOUNDARIES SO
COGNIZABLE TO BOUNDARIES "AS THEY EXISTED" AT ADMISSION OR "AS
HERETOFORE APPROVED" BY CONGRESS.  THE COURT'S DECISION AT THAT TIME
THEREFORE TURNED ENTIRELY ON THE MEANING OF THOSE TWO TERMS, WHICH WERE
CONSEQUENTLY SUBJECTED TO EXACTING ANALYSIS.  WE AT THAT TIME REJECTED
A CONTENTION MADE ON BEHALF OF THE STATES, BUT APPARENTLY NOW ADOPTED
BY THE COURT, THAT THE WORDS "AS THEY EXISTED" REFERRED SIMPLY TO THE
LOCATION OF STATE BOUNDARIES AT THE TIME OF ADMISSION; (FN15) WE HELD,
QUITE TO THE CONTRARY, THAT THE PURPOSE OF THESE WORDS WAS NOT TO
AFFECT THE LOCATION OF PRESENT STATE BOUNDARIES BUT TO SINGLE OUT THOSE
BOUNDARY CLAIMS THAT HAD AT ONE TIME OR ANOTHER BEEN APPROVED BY
CONGRESS AS THE ONLY ONES COGNIZABLE UNDER THE ACT.  WE REASONED AS
FOLLOWS: 

"THE EARLIER 'QUITCLAIM' BILLS DEFINED THE GRANT IN TERMS OF
PRESENTLY EXISTING BOUNDARIES, SINCE SUCH BOUNDARIES WOULD HAVE
CIRCUMSCRIBED THE LANDS OWNED BY THE STATES UNDER AN APPLICATION OF
POLLARD TO THE MARGINAL SEA  ...  .  SOME SUGGESTIONS WERE MADE,
HOWEVER, THAT STATES MIGHT BY THEIR OWN ACTION HAVE EFFECTIVELY
EXTENDED, OR BE ABLE TO EXTEND, THEIR BOUNDARIES SUBSEQUENT TO
ADMISSION.  TO EXCLUDE THE POSSIBILITY THAT STATES MIGHT BE ABLE TO
ESTABLISH PRESENT BOUNDARIES BASED ON EXTRAVAGANT UNILATERAL
EXTENSIONS,  ...  SUBSEQUENT DRAFTS OF THE BILL INTRODUCED THE TWOFOLD
TEST OF THE PRESENT ACT - BOUNDARIES WHICH EXISTED AT THE TIME OF
ADMISSION AND BOUNDARIES HERETOFORE APPROVED BY CONGRESS.  IT IS
APPARENT THAT THE PURPOSE OF THE CHANGE WAS NOT TO ALTER THE BASIC
THEORY OF THE GRANT, BUT TO ASSURE THAT THE DETERMINATION OF BOUNDARIES
WOULD BE MADE IN ACCORDANCE WITH THAT THEORY - THAT THE STATES SHOULD
BE 'RESTORED' TO THE OWNERSHIP OF SUBMERGED LANDS WITHIN THEIR PRESENT
BOUNDARIES, DETERMINED, HOWEVER, BY THE HISTORIC ACTION TAKEN WITH
RESPECT TO THEM JOINTLY BY CONGRESS AND THE STATE."  (FN16) 

IT WAS ON THIS THEORY THAT WE HELD THAT THE WORDS "AS THEY EXISTED"
SHOULD PROPERLY BE READ TO REFER TO THE "MOMENT OF ADMISSION" RATHER
THAN TO PREADMISSION CLAIMS, BECAUSE CONGRESS' PURPOSE HAD BEEN TO
ALLOW ONLY CLAIMS THAT IT HAD APPROVED.  (FN17) 

HAVING DEFINED THE TERM "AS THEY EXISTED" TO MEAN "AS ACKNOWLEDGED BY
CONGRESS AT THE MOMENT OF ADMISSION," THE COURT IN THE PRIOR LITIGATION
WENT ON TO HOLD THAT THE RESOLUTION OF ANNEXATION OF 1845  (FN18)  HAD,
INDIRECTLY, BEEN A CONGRESSIONAL ACKNOWLEDGMENT OF THE BOUNDARY
ESTABLISHED BY THE REPUBLIC OF TEXAS BOUNDARY ACT OF 1836, AND THAT
THIS ACT THEREFORE DEFINES TEXAS' PRESENT BOUNDARY.  (FN19)  THE ACT
READS, IN RELEVANT PART, AS FOLLOWS: 

"BEGINNING AT THE MOUTH OF THE SABINE RIVER, AND RUNNING WEST ALONG
THE GULF OF MEXICO THREE LEAGUES FROM LAND, TO THE MOUTH OF THE RIO
GRANDE  ...  ."  1 LAWS, REPUBLIC OF TEXAS 133.  (FN20) 

THE PROBLEM BEFORE US HERE - WHERE THE BOUNDARY OF TEXAS IS - MUST BE
ANSWERED BY DETERMINING WHERE "THREE LEAGUES FROM LAND" NOW IS, FOR
TEXAS HAS NO HISTORIC BOUNDARY CLAIM AT ALL UNLESS IT IS TO "THREE
LEAGUES FROM LAND."  THE QUESTION IS ONE THAT THE COURT DOES NOT EVEN
REACH:  SHOULD THE WORDS "FROM LAND" BE TAKEN, TODAY, TO REFER TO THE
SHORELINE IN 1836, OR 1845, OR TO THE PRESENT SHORELINE, AND, IF TO THE
LAST OF THESE, SHOULD "LAND" INCLUDE ARTIFICIAL ACCRETIONS BUILT UPON
THE LAND?  IT IS TO THAT QUESTION THAT I NOW TURN. 
                    II. 

TEXAS' HISTORIC CLAIM, BY WHICH THE LOCATION OF ITS PRESENT BOUNDARY
MUST BE DETERMINED, WAS TO "THREE LEAGUES FROM LAND."  AS THE UNITED
STATES CONCEDES, A BOUNDARY MEASURED BY THE LOCATION OF THE EDGE OF A
BODY OF WATER IS INHERENTLY AMBULATORY.  IN ITS BRIEF HERE, THE UNITED
STATES PUT THE MATTER THIS WAY:    "  ...  WHERE A WATERLINE IS A
BOUNDARY, THE BOUNDARY FOLLOWS THE WATERLINE THROUGH ALL ITS GRADUAL,
NATURAL CHANGES (JEFFERIS V. EAST OMAHA LAND CO., 134 U.S. 178, 189;
BANKS V. OGDEN, 2 WALL.  57, 67; JONES V. JOHNSTON, 18 HOW.  150; NEW
ORLEANS V. UNITED STATES, 10 PET.  662, 717)  ... 

"  ...  THE LOCATION OF THE BOUNDARY CHANGES, BUT IT IS THE SAME, NOT
A NEW, BOUNDARY."  (FN21) 

AT THE VERY LEAST, THEN, THE PRESENT BOUNDARY OF TEXAS MUST BE
MEASURED FROM ITS PRESENT SHORELINE, WHICH MAY HAVE SUFFERED ACCRETION
OR EROSION SINCE 1836, AND NOT FROM ITS 1845 SHORELINE. 

THE NEXT QUESTION IS WHETHER THE "LAND" WHOSE PRESENT LOCATION IS THE
BASE LINE FROM WHICH TO MEASURE TEXAS' HISTORIC CLAIM TO "THREE
LEAGUES" INCLUDES ARTIFICIAL EXTENSIONS OF LAND SUCH AS THE JETTIES
THAT ARE AT ISSUE IN THIS CASE.  THERE CAN BE NO DOUBT, AS THE COURT'S
OPINION RECOGNIZES, THAT ANY MARITIME BOUNDARY ESTABLISHED TODAY WOULD
BE TAKEN TO INCORPORATE EXISTING ARTIFICIAL STRUCTURES OF THE KIND
BUILT ON THE TEXAS COAST AND TO BE AMBULATORY WITH ANY SUCH FUTURE
ARTIFICIAL ACCRETIONS.  IN UNITED STATES V. CALIFORNIA, 381 U.S. 139,
176, WE SPECIFICALLY HELD THAT THE THREE-MILE BOUNDARY ESTABLISHED BY
THE SUBMERGED LANDS ACT FOR STATES WITHOUT HISTORIC BOUNDARIES WOULD BE
MEASURED FROM EXISTING ARTIFICIAL STRUCTURES AND FROM FUTURE ARTIFICIAL
STRUCTURES AS THEY MIGHT BE BUILT.  WE BASED OUR DECISION ON THE
CONCLUSION THAT ARTICLE 8 OF THE CONVENTION ON THE TERRITORIAL SEA AND
THE CONTIGUOUS ZONE, QUOTED IN THE COURT'S OPINION, ANTE, AT 158,
REFLECTED A NATIONAL AND INTERNATIONAL VIEW ON THIS MATTER WHICH SHOULD
BE TAKEN TO BE INCORPORATED WITHIN THE THREE-MILE-BOUNDARY SECTION OF
THE SUBMERGED LANDS ACT.  (FN22) 

AT THE TIME OF THIS CALIFORNIA DECISION THE ARGUMENT WAS MADE THAT IT
WOULD BE UNDESIRABLE TO ALLOW A STATE TO EXTEND ITS TERRITORY
UNILATERALLY BY BUILDING ONTO THE SHORELINE.  WE REJECTED THAT
ARGUMENT, FINDING A SUFFICIENT ANSWER IN THE FACT THAT THE NAVIGATIONAL
SERVITUDE POSSESSED BY THE UNITED STATES GIVES IT PLENARY POWER TO
FORBID OR REGULATE THE CONSTRUCTION OF ARTIFICIAL EXTENSIONS OF THE
COASTLINE.  (FN23) FURTHERMORE, UNDER THE PRINCIPLE OF THE CONVENTION
ONLY "PERMANENT HARBOUR WORKS" FORMING AN "INTEGRAL PART OF THE HARBOUR
SYSTEM" COUNT AS PART OF THE SHORE FOR MEASURING PURPOSES, SO NO
TRIFLING CONSTRUCTION WILL HAVE THE EFFECT OF MOVING A BOUNDARY. 

THE PARTIES HERE HAVE STIPULATED THAT THE JETTIES IN QUESTION FALL
WITHIN THE CONVENTION'S DEFINITION OF "PERMANENT HARBOUR WORKS."  IN
OTHER WORDS, WERE THESE JETTIES ON THE COAST OF CALIFORNIA, THEY WOULD
BE TREATED AS PART OF THE "COAST LINE" IN DETERMINING THE EXTENT OF
CALIFORNIA'S STATUTORY GRANT OF SUBMERGED LANDS WITHIN THREE MILES OF
ITS "COAST LINE."  THE PRECISE ISSUE BEFORE US IS WHETHER THE
CONVENTION PRINCIPLE SHOULD NOW BE TAKEN TO BE INCORPORATED INTO THE
CLAIM OF "THREE LEAGUES FROM LAND" IN THE REPUBLIC OF TEXAS BOUNDARY
ACT AS IT WAS INCORPORATED INTO THE TERM "COAST LINE" USED IN THE
SUBMERGED LANDS ACT. 

THE COURT APPEARS TO CONCLUDE THAT A DIFFERENT RESULT SHOULD BE
REACHED IN THE CASE OF TEXAS BECAUSE "UNLIKE THE THREE-MILE GRANT WHERE
THIS COURT HELD THAT CONGRESS LEFT BOUNDARY DEFINITIONS UP TO IT, HERE
CONGRESS GRANTED LAND THE BOUNDARIES OF WHICH ARE DETERMINED BY FIXED
HISTORICAL FACTS."  ANTE, AT 159-160.  THIS STATEMENT IN ITSELF IS
CORRECT, BUT THE RESULT DOES NOT FOLLOW.  IN THE CASE OF CALIFORNIA, WE
WERE DEALING WITH CONGRESS' TERM "COAST LINE" AND WE HELD THAT CONGRESS
HAD LEFT US CONSIDERABLE LATITUDE IN INTERPRETING IT.  IN THE CASE OF
TEXAS, TO WHICH CONGRESS HAS GRANTED LAND OUT TO ITS "BOUNDARIES," THE
QUESTION LEFT TO THIS COURT IS NARROWER:  WE MUST DETERMINE WHETHER THE
TEXAS ACT DEFINING THOSE BOUNDARIES SHOULD BE INTERPRETED AS OF TODAY
TO INCLUDE ARTIFICIAL EXTENSIONS OF THE SHORELINE IN THE BASE LINE FOR
MEASURING THOSE BOUNDARIES.  THAT CONGRESS REFERRED US TO AN ANCIENT
BOUNDARY CLAIM HARDLY JUSTIFIES OUR ASSUMING THAT THAT CLAIM IS SELF
EXPLANATORY. 

WHETHER THE WORDS "THREE LEAGUES FROM LAND," WRITTEN IN 1836, SHOULD
NOW BE HELD TO MEAN "THREE LEAGUES FROM THE NATURAL SHORE" OR "THREE
LEAGUES FROM THE COAST LINE" AS THAT PHRASE WOULD BE INTERPRETED TODAY
IS OF COURSE NOT AN EASY QUESTION.  SO FAR AS WE KNOW, TEXAS HAD NO
ARTIFICIAL EXTENSIONS OF ITS COAST IN 1836 OR 1845, AND THERE IS EVERY
REASON TO ASSUME THAT IT GAVE NO THOUGHT TO THE PRESENT PROBLEM.  NOR
DOES IT APPEAR THAT ANY OTHER SOVEREIGN IN THE 19TH CENTURY HAD
OCCASION TO CONSIDER THE QUESTION. 

WE ARE THUS CONSTRAINED, AS ONE WRITER WOULD HAVE IT, TO GUESS WHAT
THE TEXAS LEGISLATURE "WOULD HAVE INTENDED ON A POINT NOT PRESENT TO
ITS MIND, IF THE POINT HAD BEEN PRESENT."  (FN24)  SINCE CONGRESS IN
EFFECT LEFT THE INTERPRETATION OF THE REPUBLIC OF TEXAS BOUNDARY ACT TO
US, THAT EXERCISE INVOLVES NO SPECULATION AS TO HOW CONGRESS
INTERPRETED OR WOULD HAVE INTERPRETED THAT TEXAS ACT.  THE SOUNDEST
PRINCIPLE OF INTERPRETATION, IT SEEMS TO ME, IS TO ASSUME THAT TEXAS
WOULD HAVE COME TO THE SAME CONCLUSION THAT WAS REACHED BY EVERY NATION
THAT DISCUSSED THE ISSUE WHEN IT DID ARISE.  THAT CONCLUSION, WHICH WAS
NOT ONLY UNANIMOUS BUT ALSO OBVIOUS AND NATURAL, WAS THAT MARITIME
BOUNDARIES MOVE AS THE SHORELINE ON THE SEA IS EXTENDED. 

THE QUESTION APPARENTLY FIRST AROSE IN THE 1920'S.  THE PREPARATORY
COMMITTEE FOR THE LEAGUE OF NATIONS CONFERENCE FOR THE CODIFICATION OF
INTERNATIONAL LAW, TO BE HELD AT THE HAGUE IN 1930, SUBMITTED TO THE
VARIOUS NATIONS THE QUESTION "HOW THE BASE LINE FOR MEASURING THE
BREADTH OF TERRITORIAL WATERS IS TO BE FIXED IN FRONT OF PORTS." 
(FN25)  GREAT BRITAIN AND SEVERAL OTHER NATIONS RESPONDED, "IN FRONT OF
PORTS, THE BASE LINE FROM WHICH THE TERRITORIAL WATERS ARE MEASURED
PASSES ACROSS THE ENTRANCE FROM THE OUTERMOST POINT OR HARBOUR WORK ON
THE OTHER SIDE."  (FN26)  THE UNITED STATES QUICKLY ADOPTED THE BRITISH
SUGGESTION.  (FN27)  SEVERAL NATIONS, ALTHOUGH NOT, LIKE GREAT BRITAIN,
EXPRESSING THE PRINCIPLE IN THE PRESENT TENSE AS AN EXISTING RULE, SAID
THAT MUCH THE SAME PRINCIPLE "SHOULD BE" THE RULE.  (FN28)  ALL
TOGETHER, OF 18 RESPONSES RECEIVED BY THE PREPARATORY COMMITTEE, NONE
FAVORED A DIFFERENT BASE LINE.  (FN29)  THE COMMITTEE THEN FORMULATED
THE PRINCIPLE THAT "TERRITORIAL WATERS ARE MEASURED FROM A LINE DRAWN
BETWEEN THE OUTERMOST PERMANENT HARBOUR WORKS," AND COMMENTED THAT
"AGREEMENT EXISTS" ON THIS PRINCIPLE.  (FN30) 

BECAUSE OF DISAGREEMENT OVER UNRELATED MATTERS, THE HAGUE CONFERENCE
PRODUCED NO TREATY ON TERRITORIAL WATERS.  (FN31)  THE MATTER WAS
RAISED AGAIN, HOWEVER, BEGINNING IN 1952, AND THE INTERNATIONAL LAW
COMMISSION DRAFTED THE DOCUMENT THAT BECAME, IN 1958, ARTICLE 8 OF THE
CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE, ANTE, AT
158.  THE ILC'S COMMENT WAS "THIS ARTICLE IS CONSISTENT WITH THE
POSITIVE LAW NOW IN FORCE."  (FN32)  THE ILC DRAFT WAS PRESENTED TO THE
UN CONFERENCE ON THE LAW OF THE SEA, WHERE M. FRANCOIS, THE EXPERT TO
THE SECRETARIAT OF THE CONFERENCE, COMMENTED THAT "STATES HAD LONG
REGARDED HARBOUR WORKS SUCH AS JETTIES AS PART OF THEIR LAND TERRITORY
AND THAT PRACTICE SHOULD BE UNIVERSALLY RECOGNIZED AS
UNCHALLENGEABLE."  (FN33)  THE PRINCIPLE WAS ADOPTED BY THE CONFERENCE,
AFTER DISCUSSION AND WITHOUT DISSENT, AND BECAME ARTICLE 8. 

THE UNITED STATES HERE CONTENDS THAT BECAUSE THE OUTERMOST HARBOR
WORKS PRINCIPLE HAD NOT BEEN ARTICULATED IN 1836 OR 1845, IT SHOULD NOT
NOW BE A BASIS FOR INTERPRETING THE REPUBLIC OF TEXAS BOUNDARY ACT. 
THE PREMISE OF THIS CONTENTION IS SOUND:  AN ANCIENT STATUTE SHOULD
ORDINARILY BE INTERPRETED IN LIGHT OF THE DOCTRINES PREVAILING AT THE
TIME IT WAS PASSED, RATHER THAN OF SUBSEQUENT CHANGES IN GOVERNING
PRINCIPLES.  BUT THE CONCLUSION DRAWN FROM THIS PREMISE BY NO MEANS
FOLLOWS IN THIS INSTANCE.  THE OUTERMOST PERMANENT HARBOR-WORKS
PRINCIPLE WAS NOT A NEW RULE SUBSTITUTED FOR AN OLDER, CONFLICTING
ONE.  IT WAS SIMPLY THE FIRST ANSWER TO A PROBLEM THAT HAD NOT ARISEN
BEFORE.  THE UNANIMITY OF NATIONS IN 1930 STRONGLY SUGGESTS THAT TEXAS,
HAD IT CONSIDERED THE PROBLEM IN 1836, WOULD HAVE REACHED THE SAME
CONCLUSION. 

THE CONCLUSION THAT THE TEXAS BOUNDARY ACT SHOULD BE READ TODAY IN
LIGHT OF THE OUTERMOST HARBOR-WORKS PRINCIPLE IS FORTIFIED BY THE FACT
THAT THE RESULT TO WHICH THIS READING LEADS IS EMINENTLY SENSIBLE. 
CONSIDERATIONS OF HISTORY ASIDE, THERE IS NO GOOD REASON (AND CERTAINLY
THERE IS NO SUGGESTION IN THE SUBMERGED LANDS ACT OR ITS LEGISLATIVE
HISTORY) WHY THE PRINCIPLES GOVERNING MEASUREMENT OF THE PRESENT-DAY
BOUNDARY OF THE STATE OF TEXAS SHOULD BE DIFFERENT FROM THOSE THAT
GOVERN BOTH THE MEASUREMENT OF THE BOUNDARY OF CALIFORNIA AND THE
MEASUREMENT OF THE BOUNDARY OF THE UNITED STATES IN THE GULF OF MEXICO
OPPOSITE TEXAS.  FURTHERMORE, THE VARIOUS PRACTICAL CONSIDERATIONS THAT
LED THE NATIONS OF THE WORLD TO AGREE UNANIMOUSLY ON THE PRINCIPLE OF
ARTICLE 8 SHOULD SURELY HAVE CONSIDERABLE FORCE HERE.  THE COURT'S
RULE, MAINTAINING THE BOUNDARY OF TEXAS IMMOBILE AT ITS 1845 LOCATION,
SEEMS HIGHLY UNWORKABLE EVEN IF IT NOW PROVES POSSIBLE TO DETERMINE
THAT LOCATION AT ALL; (FN34)  FOR THE RESULT OF SUCH A RULE IS THAT AT
SOME FUTURE TIME NOT ONLY ARTIFICIAL BUT NATURAL EXTENSIONS OF THE LAND
MASS MIGHT PROVE TO BE OUTSIDE OF "TEXAS."  THE ALTERNATIVE, SUGGESTED
BY THE UNITED STATES HERE BUT REJECTED BY THE UNITED STATES FOR
INTERNATIONAL PURPOSES, WOULD BE TO MAKE THE BOUNDARY MOBILE WITH
RESPECT TO NATURAL, BUT IMMOBILE WITH RESPECT TO ARTIFICIAL, CHANGES. 
SUCH A RULE INVOLVES OBVIOUS DIFFICULTIES:  THE CONSTRUCTION OF HARBOR
WORKS MAY AFFECT THE CONFIGURATION OF THE ENTIRE SHORELINE, MAKING IT
SOON IMPOSSIBLE TO DETERMINE WHERE THE "NATURAL" CHANGE ENDS AND THE
"ARTIFICIAL" CHANGE BEGINS.  THE OUTERMOST PERMANENT HARBOR-WORKS
PRINCIPLE, THEN, SEEMS ALMOST INEVITABLE. 

BELIEVING THAT THE LIMIT OF TEXAS' SUBMERGED LAND GRANT IS ITS
PRESENT BOUNDARY, THAT THAT BOUNDARY IS DEFINED BY THE REPUBLIC OF
TEXAS BOUNDARY ACT OF 1836, AND THAT THAT ACT DEFINES A BOUNDARY THAT
SHOULD NOW BE MEASURED FROM THE OUTERMOST POINTS OF THE JETTIES IN
QUESTION, I RESPECTFULLY DISSENT FROM THE COURT'S DETERMINATION OF THE
ISSUE BEFORE US. 

FN1  SEE INFRA, AT 171. 

FN2 67 STAT. 30, 43 U.S.C. SEC. 1311(A) 

FN3  67 STAT. 31, 43 U.S.C. SEC 1312. 

FN4  67 STAT. 29, 43 U.S.C. SEC. 1301(B) 

FN5  363 U.S., AT 26-28. 

FN6  1 LAWS, REPUBLIC OF TEXAS 133 (1836). 

FN7  363 U.S., AT 36-65. 

FN8  363 U.S., AT 16-18. 

FN9  SEE 363 U.S., AT 16. 

FN10  UNITED STATES V. CALIFORNIA, 332 U.S. 19; UNITED STATES V.
LOUISIANA, 339 U.S. 699; UNITED STATES V. TEXAS, 339 U.S. 707. 

FN11  THE QUOTATION IS FROM THE OPINION OF MR. JUSTICE DOUGLAS, FOR
THE COURT, IN UNITED STATES V. LOUISIANA, 339 U.S. 699, AT 704, 705
(1950).  THE QUOTED STATEMENT IS THEN EXPLICITLY RELIED UPON IN THE
SUBSEQUENT CASE INVOLVING TEXAS, UNITED STATES V. TEXAS, 339 U.S. 707,
AT 720.  IN THESE CASES, THE TWO STATES HAD ASSERTED THAT THEY HAD
HISTORIC BOUNDARIES IN THE SEA AND WERE THEREFORE NOT SUBJECT TO THE
RULE OF THE FIRST CALIFORNIA CASE THAT THE UNITED STATES HAD PARAMOUNT
RIGHTS IN THE MARGINAL SEA.  THIS COURT RULED AGAINST THE STATE CLAIMS,
HOLDING THAT THE EXISTENCE AND LOCATION OF STATE BOUNDARIES WERE
IRRELEVANT. 

FN12  363 U.S., AT 17-20, 24-29. 

FN13  363 U.S., AT 11. 

FN14  363 U.S., AT 24-25. 

FN15  THE ARGUMENT OF THE STATES WAS THAT THE WORDS "AS THEY EXISTED"
INCLUDED BOUNDARIES UNILATERALLY DECLARED PRIOR TO ADMISSION.  363
U.S., AT 13, 15.  THE THEORY APPEARS TO HAVE BEEN THAT THE WORDS HAD
MERELY A "LOCATING" FUNCTION.  FINDING THAT THE PURPOSE OF THESE WORDS
WAS NOT CLEARLY REVEALED BY THE ACT ON ITS FACT, 363 U.S., AT 16, WE
TURNED TO THE LEGISLATIVE HISTORY AND CONCLUDED THAT THE WORDS WERE
INSTEAD MEANT TO REQUIRE CONGRESSIONAL APPROVAL OF THE STATE'S BOUNDARY
CLAIM AT THE TIME OF ADMISSION OR LATER.  363 U.S., AT 16-30.  OUR VIEW
WAS THAT THE ACT GRANTED LAND OUT TO WHATEVER PRESENT BOUNDARIES SHOULD
PROVE TO BE VALID, SUBJECT TO THE THREE-LEAGUE LIMITATION IN THE GULF,
BUT THAT ONLY THOSE THAT HAD BEEN APPROVED BY CONGRESS AT OR AFTER
ADMISSION COULD BE CONSIDERED VALID FOR PURPOSES OF THIS GRANT. 

FN16  363 U.S., AT 26-28 

FN17  MY BROTHER BLACK PARTIALLY DISSENTED FROM THAT OPINION; IT WAS
HIS VIEW THAT THE WORDS "AS THEY EXISTED" COULD NOT BE READ, AS THE
COURT READ THEM, TO REFER SIMPLY TO A "LEGALLY ACCEPTED" BOUNDARY.  363
U.S., AT 85, 89. 

FN18  9 STAT. 108. 

FN19  363 U.S., AT 46-65. 

FN20  THE PASSAGE IS QUOTED AT 363 U.S., AT 36. 

FN21  BRIEF FOR THE UNITED STATES IN SUPPORT OF MOTION FOR INJUNCTIVE
RELIEF AND SUPPLEMENTAL DECREE AS TO THE STATE OF TEXAS 17, 16 (FILED
JULY 13, 1967). 

FN22  WE REACHED THIS RESULT DESPITE THE FACT THAT THE ACT PRECEDED
BY FIVE YEARS THE ADOPTION OF THE INTERNATIONAL CONVENTION, WHICH
CONSEQUENTLY WAS NOT IN ANY LITERAL SENSE INCORPORATED BY THE ACT.  WE
FOUND, RATHER, THAT THE CONVENTION AFFORDED THE "BEST AND MOST WORKABLE
DEFINITION" OF THE STATUTORY TERM "INLAND WATERS" AND, DERIVATIVELY,
THE STATUTORY TERM "COAST LINE."  381 U.S., AT 161-165.    FN23  381
U.S., AT 177. 

FN24  GRAY, THE NATURE AND SOURCES OF THE LAW 173 (1963 ED.). 

FN25  LEAGUE OF NATIONS DOC. NO. C.74.M.39.1929.V, LEAGUE OF NATIONS
CONFERENCE FOR THE CODIFICATION OF INTERNATIONAL LAW:  BASES OF
DISCUSSION:  VOL. II - TERRITORIAL WATERS, P. 45 (HEREINAFTER CITED AS
"BASES OF DISCUSSION"). 

FN26  ID., AT 46. 

FN27  SEE LEAGUE OF NATIONS DOC. NO. C.351 (B).M.145 (B).1930.V, ACTS
OF THE CONFERENCE FOR THE CODIFICATION OF INTERNATIONAL LAW:  MEETINGS
OF THE COMMITTEES:  VOL. III - MINUTES OF THE SECOND COMMITTEE:
TERRITORIAL WATERS, P. 200 (HEREINAFTER CITED AS "ACTS OF
CONFERENCE"). 

FN28  BASES OF DISCUSSION 46. 

FN29  ID., AT 45-47. 

FN30  ID., AT 47. 

FN31  SEE ACTS OF CONFERENCE 211. 

FN32  1954 I.L.C. YEARBOOK 155. 

FN33  U.N. DOC. NO. A/CONF.  13/39, UNITED NATIONS CONFERENCE ON THE
LAW OF THE SEA.  OFFICIAL RECORDS, VOLUME III:  FIRST COMMITTEE
(TERRITORIAL SEA AND CONTIGUOUS ZONE) 142. 

FN34  NO GEODETIC SURVEY INDICATING THE 1845 LOCATION OF TEXAS'
SHORELINE EXISTS.  AT ORAL ARGUMENT, BOTH SIDES WERE AT LOSS TO SUGGEST
ANY MEANS BY WHICH THE 1845 LOCATION OF THE BOUNDARY COULD BE
ASCERTAINED, EXCEPT BY AGREEMENT BETWEEN THE UNITED STATES AND TEXAS. 
THIS PROBLEM IS, OF COURSE, TYPICAL OF THE DIFFICULTIES THAT DICTATE
THE PRINCIPLE THAT MARITIME BOUNDARIES ARE INHERENTLY MOBILE. 
..END :























FEDERAL TRADE COMMISSION V. FLOTILL PRODUCTS 389 U.S. 179 


NO. 20.  ARGUED OCTOBER 16, 1967.  - DECIDED DECEMBER 4, 1967.  - 358
F.2D 224, 234, REVERSED IN PART AND REMANDED. 


ALL FIVE MEMBERS OF THE FEDERAL TRADE COMMISSION (FTC) HEARD ORAL
ARGUMENT IN THIS CASE INVOLVING ALLEGED VIOLATIONS BY RESPONDENT OF
SEC. 2(C) AND SEC. 2(D) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON
PATMAN ACT.  TWO COMMISSIONERS RESIGNED BEFORE THE FTC RENDERED ITS
DECISION AND A NEW COMMISSIONER TAKING OFFICE IN THE INTERIM DECLINED
TO PARTICIPATE.  THE THREE PARTICIPATING COMMISSIONERS CONCURRED THAT
RESPONDENT HAD VIOLATED SEC. 2(D) BUT ONLY TWO AGREED THAT IT HAD
VIOLATED SEC. 2(C).  A THREE-JUDGE PANEL OF THE COURT OF APPEALS UPHELD
THE FTC'S CEASE-AND-DESIST ORDER RELATING TO THE SEC. 2(D) VIOLATION
BUT REFUSED TO ENFORCE THE ORDER RELATING TO THE SEC. 2(C) VIOLATION,
HOLDING THAT, ABSENT CONTRARY STATUTORY AUTHORITY, THREE MEMBERS OF A
FIVE-MEMBER COMMISSION HAD TO CONCUR BEFORE THEIR ORDER COULD BIND THE
COMMISSION.  THE COURT EN BANC SUSTAINED THE PANEL DECISION.  THE
FEDERAL TRADE COMMISSION ACT DOES NOT SPECIFY THE NUMBER OF
COMMISSIONERS WHO MAY CONSTITUTE A QUORUM.  AN FTC RULE PROVIDES FOR A
QUORUM OF THREE COMMISSIONERS.  HELD: 

1.  ABSENT A CONTRARY STATUTORY PROVISION THE COMMON-LAW RULE
APPLIES:  A MAJORITY OF A QUORUM WHICH CONSTITUTES A SIMPLE MAJORITY OF
A COLLECTIVE BODY MAY ACT FOR THE BODY.  PP.  183-184. 

2.  THE FTC IS EMPOWERED TO FOLLOW THE COMMON-LAW RULE SINCE THE
FEDERAL TRADE COMMISSION ACT NEITHER EXPRESSLY NOR IMPLIEDLY REFLECTS A
CONTRARY DECLARATION AND NONE IS TO BE INFERRED BY OTHER CONGRESSIONAL
ACTION.  PP. 185-190. 

FEDERAL TRADE COMMISSION V. FLOTILL PRODUCTS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER AN ENFORCEABLE CEASE-AND-DESIST
ORDER OF THE FEDERAL TRADE COMMISSION REQUIRES THE CONCURRENCE OF A
MAJORITY OF THE FULL COMMISSION, OR ONLY OF A MAJORITY OF THE QUORUM
THAT PARTICIPATED IN THE DECISION TO ISSUE THE ORDER. 

THE COMMISSION HAS FIVE COMMISSIONERS, 15 U.S.C. SEC. 41.  (FN1)  A
FULL COMMISSION HEARD ORAL ARGUMENT IN THIS CASE INVOLVING A COMPLAINT
THAT RESPONDENT MADE PAYMENTS IN LIEU OF BROKERAGE IN VIOLATION OF SEC.
2(C) OF THE ROBINSON-PATMAN ACT AND GRANTED PROMOTIONAL ALLOWANCES IN
VIOLATION OF SEC. 2(D) OF THAT ACT.  15 U.S.C. SECS.  12(C) AND (D). 
TWO COMMISSIONERS RETIRED BEFORE THE COMMISSION RENDERED ITS DECISION. 
ALTHOUGH ONE VACANCY WAS FILLED IN THE INTERIM, ONLY THREE
COMMISSIONERS PARTICIPATED IN THE DECISION BECAUSE THE NEW
COMMISSIONER, NOT HAVING HEARD THE ORAL ARGUMENT, DECLINED TO
PARTICIPATE.  ALL THREE PARTICIPATING COMMISSIONERS CONCURRED THAT
RESPONDENT GRANTED PROMOTIONAL ALLOWANCES IN VIOLATION OF SEC. 2(D). 
HOWEVER, ONLY TWO OF THE THREE CONCURRED THAT RESPONDENT ALSO MADE
PAYMENTS IN LIEU OF BROKERAGE IN VIOLATION OF SEC. 2(C).  ON PETITION
FOR REVIEW UNDER 15 U.S.C. SECS. 21(C) AND 45(C), A THREE-JUDGE PANEL
OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT ENFORCED THE COMMISSION'S
CEASE-AND-DESIST ORDER AS IT RELATED TO THE SEC. 2(D) VIOLATION BUT
REFUSED TO ENFORCE THE ORDER, ONE JUDGE DISSENTING, AS IT RELATED TO
THE SEC. 2(C) VIOLATION.  IN REFUSING TO ENFORCE THE SEC. 2(C) PART OF
THE ORDER, THE COURT OF APPEALS HELD THAT "ABSENT STATUTORY AUTHORITY
OR INSTRUCTION TO THE CONTRARY, THREE MEMBERS OF A FIVE MEMBER
COMMISSION MUST CONCUR IN ORDER TO ENTER A BINDING ORDER ON BEHALF OF
THE COMMISSION."  358 F.2D 224, 228.(  (FN2)  ON REHEARING EN BANC THE
FULL COURT SUSTAINED THE PANEL DECISION FIVE TO FOUR.  358 F.2D, AT
234.  BECAUSE OF A CONFLICT WITH DECISIONS OF OTHER COURTS OF APPEALS,
SEE ATLANTIC REFINING CO. V. FTC, 344 F.2D 599 (C.A. 6TH CIR.), LAPEYRE
V. FTC, 366 F.2D 117 (C.A. 5TH CIR.), WE GRANTED CERTIORARI, 386 U.S.
1003.  WE REVERSE. 

THE FEDERAL TRADE COMMISSION ACT DOES NOT SPECIFY THE NUMBER OF
COMMISSIONERS WHO MAY CONSTITUTE A QUORUM.  (FN3)  A QUORUM OF THREE
COMMISSIONERS IS PROVIDED FOR BY A RULE OF THE COMMISSION FIRST
PROMULGATED IN 1915; IN ITS CURRENT VERSION IT IS RULE 1.7.  (FN4)  NO
CHALLENGE TO THE AUTHORITY OF FTC TO PROMULGATE RULE 1.7 IS MADE IN
THIS CASE; INDEED, THE COURT OF APPEALS EXPRESSLY DISCLAIMED ANY "  ...
DOUBT AS TO THE VALIDITY OF THE COMMISSION'S PRACTICE OF CONDUCTING
HEARINGS BEFORE LESS THAN THE FULL MEMBERSHIP," 358 F.2D, AT 230. 
BEFORE US FOR REVIEW, THEREFORE, IS ONLY THE HOLDING OF THE COURT OF
APPEALS WHICH FOLLOWS THAT DISCLAIMER:  "WE SAY ONLY THAT AN ORDER OF
THE COMMISSION MUST BE SUPPORTED BY THREE MEMBERS IN ORDER TO
CONSTITUTE AN ENFORCEABLE ORDER OF THE FTC.  TWO OF FIVE IS TOO FEW." 
IBID. 

THE RATIONALE OF THE COURT OF APPEALS WAS THAT THE FTC COULD ACT ONLY
ON THE CONCURRENCE OF A MAJORITY OF THE FULL COMMISSION "ABSENT
STATUTORY AUTHORITY OR INSTRUCTION TO THE CONTRARY."  358 F.2D, AT
228.  THE COURT CITED NO AUTHORITY AFFIRMATIVELY SUPPORTING THAT
PROPOSITION; THE COURT SIMPLY REJECTED - ON THE GROUND THAT IT IS
INAPPLICABLE TO "A STATUTORILY CREATED ADMINISTRATIVE TRIBUNAL LIKE THE
FEDERAL TRADE COMMISSION," 358 F.2D, AT 229 - THE RULE STATED BY THE
COURT OF CUSTOMS AND PATENT APPEALS IN FRISCHER & CO. V. BAKELITE
CORP., 39 F.2D 247, 255, THAT "  ...  IN COLLECTIVE BODIES OTHER THAN
COURTS, EVEN THOUGH THEY MAY EXERCISE JUDICIAL AUTHORITY, A MAJORITY OF
A QUORUM IS SUFFICIENT TO PERFORM THE FUNCTION OF THE BODY."  (FN5)
FURTHER, THE COURT REJECTED AS "A BARE CONCLUSION" THE HOLDING OF THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT IN ATLANTIC REFINING CO. V. FTC,
SUPRA, THAT A MAJORITY OF A PANEL OF THREE COMMISSIONERS COULD ACT FOR
THE COMMISSION. 

INSOFAR AS THE COURT OF APPEALS' HOLDING IMPLIES THAT THE PROPOSITION
STATED BY IT IS THE COMMON-LAW RULE, THE COURT WAS MANIFESTLY IN
ERROR.  THE ALMOST UNIVERSALLY ACCEPTED COMMON-LAW RULE IS THE PRECISE
CONVERSE - THAT IS, IN THE ABSENCE OF A CONTRARY STATUTORY PROVISION, A
MAJORITY OF A QUORUM CONSTITUTED OF A SIMPLE MAJORITY OF A COLLECTIVE
BODY IS EMPOWERED TO ACT FOR THE BODY.  (FN6)  WHERE THE ENABLING
STATUTE IS SILENT ON THE QUESTION, THE BODY IS JUSTIFIED IN ADHERING TO
THAT COMMON-LAW RULE. 

RESPONDENT DOES NOT UNDERTAKE TO SUPPORT THE COURT OF APPEALS'
PROPOSITION AS STATED.  RATHER RESPONDENT CONCEDES THAT THE COMMON-LAW
RULE IS AS WE HAVE STATED IT TO BE BUT ARGUES THAT AN EXCEPTION
ALLEGEDLY RECOGNIZED AT COMMON LAW IN THE CASE OF COURTS SHOULD BE
APPLIED TO AN AGENCY LIKE THE FTC EXERCISING QUASI-JUDICIAL FUNCTIONS;
RESPONDENT CITES THE STATEMENT IN FRISCHER, SUPRA, AT 255, THAT "WHERE
COURTS ARE CONCERNED, IT HAS BEEN UNIFORMLY HELD, SO FAR AS WE CAN
ASCERTAIN, THAT A CLEAR MAJORITY OF ALL THE LEGALLY CONSTITUTED MEMBERS
THEREOF SHALL CONCUR OR NO VALID JUDGMENT MAY BE ENTERED EXCEPT SUCH AS
MAY FOLLOW NO DECISION."  BUT EVEN ON THE DOUBTFUL PREMISE THAT THERE
IS AN EXCEPTION IN THE CASE OF COURTS,  (FN7)  FRISCHER ITSELF
RECOGNIZED, AS WE HAVE SEEN, THAT THE EXCEPTION DOES NOT APPLY TO
ADMINISTRATIVE AGENCIES WITH QUASI-JUDICIAL FUNCTIONS.  IBID.  (FN8)
IT FOLLOWS THAT THE FTC IS NOT INHIBITED FROM FOLLOWING THE COMMON-LAW
RULE UNLESS CONGRESS HAS DECLARED OTHERWISE.  SINCE THAT DECLARATION IS
NOT EXPRESSED IN THE TRADE COMMISSION ACT, OUR TASK IS NARROWED TO
DETERMINING WHETHER IT MAY BE READ IN BY IMPLICATION. 

THE COURT OF APPEALS' OPINION MAY BE READ AS HAVING FOUND AN IMPLICIT
CONTRARY DECLARATION BECAUSE CONGRESS WROTE THE COMMON-LAW RULE INTO
LATER STATUTES CREATING OTHER AGENCIES: "  ...  WHEN CONGRESS WANTED TO
AUTHORIZE THE EXERCISE OF THE POWERS OF AN ADMINISTRATIVE BODY BY LESS
THAN THE FULL BODY IN OTHER SITUATIONS, IT DID NOT LACK THE WORDS TO DO
SO EXPRESSLY.  CF. NATIONAL LABOR RELATIONS BOARD, 29 U.S.C. SEC.
153(B); INTERSTATE COMMERCE COMMISSION, 49 U.S.C. SEC. 17(1); FEDERAL
POWER COMMISSION, 16 U.S.C. SEC. 792," 358 F.2D, AT 229.(  (FN9)
HOWEVER, IN ANOTHER STATUTE, REORGANIZING THE FEDERAL MARITIME
COMMISSION, CONGRESS ENACTED NOT THE COMMON-LAW RULE BUT A UNANIMOUS
CONCURRENCE PROVISION, REORGANIZATION PLAN NO. 7 OF 1961, 75 STAT. 840;
THE REASONING OF THE COURT OF APPEALS THUS WOULD EQUALLY JUSTIFY AN
INFERENCE THAT CONGRESS SANCTIONED THE FTC'S ADHERENCE TO THE COMMON
LAW RULE, SINCE CONGRESS HAS NOT LACKED THE WORDS TO ABROGATE SUCH A
PRACTICE EXPRESSLY.  THIS DIVERSITY IN CONGRESSIONAL TREATMENT OF THE
PROBLEM CLEARLY FORECLOSES RELIANCE UPON A PARTICULAR CHOICE IN ONE
STATUTE AS THE BASIS FOR AN INFERENCE OF A CONTRARY CHOICE IN ANOTHER
WHICH SAYS NOTHING ON THE MATTER. 

THE COURT OF APPEALS SEEMS ALSO TO HAVE BEEN OF THE VIEW THAT THERE
IS A BASIS FOR INFERRING A CONTRARY DECLARATION FROM WITHIN THE FOUR
CORNERS OF THE TRADE COMMISSION ACT ITSELF.  "IT IS DIFFICULT TO
BELIEVE THAT CONGRESS CONCEIVED OF THE FIVE-MEMBER FTC WITH ITS
POLITICALLY BALANCED MAKE-UP, PERMITTING TWO OF ITS MEMBERS TO SPEAK
FOR THE COMMISSION, AND FAILED TO SPECIFICALLY PROVIDE ENABLING
LEGISLATION."  358 F.2D, AT 229.  THIS ARGUMENT STRESSES THE STRUCTURAL
CHARACTERISTICS OF THE COMMISSION - THAT IT IS A MULTI-MEMBERED BODY
WHOSE MEMBERS SERVE LONG, STAGGERED TERMS, AND NO MORE THAN THREE OF
WHOM MAY BELONG TO THE SAME POLITICAL PARTY.  BUT THE ARGUMENT FAILS TO
TAKE INTO ACCOUNT THE FACT THAT THESE FEATURES ARE COMMON TO ALMOST ALL
FEDERAL REGULATORY AGENCIES, WHOSE ENABLING ACTS, WHERE THEY DEAL AT
ALL WITH THE QUESTION OF HOW MANY OF A QUORUM MAY ACT FOR THE AGENCY,
DEAL WITH IT DIVERSELY.  NOTHING IN THE STRUCTURE OF THE FTC,
THEREFORE, COMMANDS THE INFERENCE THAT CONGRESS INTENDED TO RESTRICT
THE COMMISSION TO VOTING REQUIREMENTS NOT NORMALLY IMPOSED ON OR
ADHERED TO BY SIMILARLY STRUCTURED AGENCIES. 

RESPONDENT'S FINAL ARGUMENT IS THAT THERE IS A BASIS FOR THE
INFERENCE IN THE ACTION OF CONGRESS IN 1961 IN NOT DISAPPROVING THE
REORGANIZATION PLAN FOR THE COMMISSION SUBMITTED BY PRESIDENT KENNEDY. 
(FN10)  UNDER THIS PLAN THE FTC WAS GRANTED "AUTHORITY TO DELEGATE, BY
PUBLISHED ORDER OR RULE, ANY OF ITS FUNCTIONS TO A DIVISION OF THE
COMMISSION, AN INDIVIDUAL COMMISSIONER, A HEARING EXAMINER, OR AN
EMPLOYEE OR EMPLOYEE BOARD, INCLUDING FUNCTIONS WITH RESPECT TO
HEARING, DETERMINING, ORDERING, CERTIFYING, REPORTING OR OTHERWISE
ACTING AS TO ANY WORK, BUSINESS, OR MATTER  ...  ."  THE PLAN FURTHER
PROVIDED THAT "THE COMMISSION SHALL RETAIN A DISCRETIONARY RIGHT TO
REVIEW THE ACTION OF ANY SUCH DIVISION OF THE COMMISSION, INDIVIDUAL
COMMISSIONER  ...  " AND THAT "THE VOTE OF A MAJORITY OF THE COMMISSION
LESS ONE MEMBER THEREOF SHALL BE SUFFICIENT TO BRING ANY SUCH ACTION
BEFORE THE COMMISSION FOR REVIEW."  REORGANIZATION PLAN NO. 4, SECS.
1(A), (B).  THE COMMISSION DID NOT PURPORT TO ACT PURSUANT TO PLAN NO.
4 IN THIS PROCEEDING.  NEVERTHELESS, RESPONDENT ARGUES THAT THE
PROVISION ASSURING A MINORITY OF THE COMMISSION A MEANS TO COMPEL
REVIEW BY THE FULL COMMISSION IS A CONGRESSIONAL EXPRESSION THAT
COMMISSION ACTION SHALL BE VALID ONLY WHEN CONCURRED IN BY A MAJORITY
OF THE FULL MEMBERSHIP.  THIS ARGUMENT IS NOT PERSUASIVE, HOWEVER.  THE
PROVISIONS OF PLAN NO. 4 WERE COMMON TO MOST OF THE REORGANIZATION
PLANS SUBMITTED FOR OTHER AGENCIES AT OR ABOUT THE SAME TIME.  (FN11)
AS WE HAVE NOTED, THE ENABLING ACTS CREATING THOSE AGENCIES TREAT
DIFFERENTLY THE PROBLEM OF THE NUMBER OF A QUORUM AUTHORIZED TO ACT FOR
THE AGENCY, WHICH MAKES IT HIGHLY IMPROBABLE THAT THE SIMILARLY PHRASED
REVIEW PROCEDURES SET FORTH IN THE PLANS MANIFEST THE IMPLICIT
PRINCIPLE FOR WHICH RESPONDENT CONTENDS.  INDEED, IT IS QUITE CLEAR -
BOTH FROM THE LANGUAGE OF THE PLANS AND THE DISCUSSIONS IN CONGRESS -
THAT PLAN NO. 4 AND THOSE LIKE IT WERE CONCERNED WITH ESTABLISHING THE
AUTHORITY AND PROCEDURE FOR DELEGATION OF FUNCTIONS SO AS TO ENABLE THE
RESPECTIVE AGENCIES TO OPERATE MORE EFFICIENTLY.  (FN12)  THERE CAN BE
LITTLE QUESTION OF THE DESIRABILITY OF THE FTC'S JUDICIOUS USE OF THIS
AUTHORITY, BUT THE CASE BEFORE US IS NOT ONE IN WHICH THERE WAS A
DELEGATION.  THIS WAS A PROCEEDING ORIGINALLY HEARD BY A FULL
COMMISSION AND THE PROBLEM OF A QUORUM DECISION AROSE ONLY WHEN
FORTUITOUS CIRCUMSTANCES REDUCED TO THREE THE NUMBER OF COMMISSIONERS
AVAILABLE TO RENDER A DECISION.  CLEARLY, IT IS NOT A DECISION COVERED
BY THE 1961 PLAN. 

THE INCONSISTENCY IN CONGRESSIONAL TREATMENT OF QUORUM VOTING -
SOMETIMES ALLOWING AGENCY ACTION ON THE CONCURRENCE OF A MAJORITY OF
THE QUORUM, IN OTHER CASES REQUIRING UNANIMOUS CONCURRENCE, AND IN
SEVERAL STATUTES SAYING NOTHING AT ALL - REFUTES ANY SUGGESTION THAT
CONGRESS HAS REGARDED THE PROBLEM TO BE SUCH AS TO JUSTIFY A SINGLE
RULE FOR FEDERAL REGULATORY AGENCIES.  SURELY, IF CONGRESS AT ANY TIME
HAS REGARDED THE CASE OF THE FTC AS SPECIALLY CALLING FOR UNANIMITY IN
QUORUM VOTING, WE MIGHT EXPECT THAT CONGRESS WOULD HAVE AT SOME TIME
ADDRESSED ITSELF TO THE QUESTION DURING THE MORE THAN HALF CENTURY OF
THE COMMISSION'S EXISTENCE.  (FN13)  THUS, IF ANY CONCLUSION IS TO BE
DRAWN, IT IS THAT CONGRESS HAS BEEN AND IS CONTENT TO ACQUIESCE IN THE
COMMISSION'S PRACTICE OF FOLLOWING THE LONG-ESTABLISHED COMMON-LAW
RULE. 

WE THEREFORE REVERSE THE JUDGMENT OF THE COURT OF APPEALS INSOFAR AS
THE MATTER OF THE COMMISSION'S SEC. 2(C) ORDER WAS "REMANDED TO THE FTC
FOR FURTHER PROCEEDINGS TO DETERMINE WHETHER A MAJORITY OF THE
COMMISSION JOIN IN THE SECTION 2(C) FINDINGS," AND REMAND TO THAT COURT
WITH DIRECTION TO PROCEED TO JUDGMENT ON THE MERITS OF RESPONDENT'S
PETITION TO REVIEW AND SET ASIDE THAT ORDER.  IT IS SO ORDERED. 

FN1  THE FTC IS ONE OF THE OLDEST FEDERAL REGULATORY AGENCIES.  ACT
OF SEPTEMBER 26, 1914, C. 311, SEC 1, 38 STAT. 717, AS AMENDED, 15
U.S.C. SEC 41.  SEE GENERALLY CUSHMAN, THE INDEPENDENT REGULATORY
COMMISSIONS 177-228 (1941); HENDERSON, THE FEDERAL TRADE COMMISSION
(1924). 

FN2  THE FTC HAD DENIED A PETITION FOR RECONSIDERATION FILED BY
RESPONDENT URGING, AMONG OTHER THINGS, THE INVALIDITY OF THE SEC. 2(C)
ORDER ON THIS GROUND.  SEE 1963-1965 CCH TRADE REG. REP. TRANSFER
BINDER PARA 17,046. 

FN3  WE DO NOT REGARD THE PROVISION IN 15 U.S.C. SEC 41 FOR THE
EXERCISE OF POWERS BY "THE REMAINING COMMISSIONERS" IN THE CASE OF "A
VACANCY" AS REGULATING THE MATTER OF A QUORUM.  IN CONTRAST, EXCEPT FOR
THE 1934 ACT CREATING THE SECURITIES AND EXCHANGE COMMISSION, 15 U.S.C.
SEC 78D, WHICH IS ALSO SILENT, THE ACTS CREATING OTHER MAJOR FEDERAL
REGULATORY AGENCIES EXPRESSLY PROVIDE HOW MANY MEMBERS SHALL CONSTITUTE
A QUORUM.  SEE, E.G., 42 U.S.C. SEC. 2031 (ATOMIC ENERGY COMMISSION);
49 U.S.C. SEC. 1321(C)(CIVIL AERONAUTICS BOARD); 47 U.S.C. SEC.
154(H)(FEDERAL COMMUNICATIONS COMMISSION); 16 U.S.C.  SEC 792 (FEDERAL
POWER COMMISSION); 46 U.S.C. SEC 1111, AS AMENDED (FEDERAL MARITIME
COMMISSION); 49 U.S.C. SEC. 17(3)(INTERSTATE COMMERCE COMMISSION); 29
U.S.C. SEC.  153(B)(NATIONAL LABOR RELATIONS BOARD); 50 U.S.C. APP.
SEC. 1217(B)(RENEGOTIATION BOARD); 19 U.S.C. SEC. 1330(C)(UNITED STATES
TARIFF COMMISSION).    FN4  "A MAJORITY OF THE MEMBERS OF THE
COMMISSION CONSTITUTES A QUORUM FOR THE TRANSACTION OF BUSINESS."  RULE
1.7, PROCEDURES AND RULES OF PRACTICE FOR THE FEDERAL TRADE COMMISSION,
AS AMENDED, 16 CFR SEC 1.7 (1967) (NOW SEC 6 OF STATEMENT OF
ORGANIZATION OF THE FTC, 32 FED. REG. 8442).  ALTHOUGH SEC 6 SUPERSEDED
RULE 1.7 AS OF JULY 1, 1967, IT IS IDENTICAL IN WORDING; WE SHALL REFER
TO THE RULING AS RULE 1.7, AS IT WAS CITED IN THE PROCEEDINGS TO DATE. 

IN ITS ORIGINAL VERSION THE QUORUM PROVISION WAS STATED:  "THREE
MEMBERS OF THE COMMISSION SHALL CONSTITUTE A QUORUM FOR THE TRANSACTION
OF BUSINESS."  1 F.T.C. 595 (RULE ADOPTED JUNE 17, 1915).  SEE ALSO
HENDERSON, SUPRA, N. 1, AT 71:  "THE CASE IS THEN SET FOR ORAL ARGUMENT
BEFORE THE FULL COMMISSION (OR AT LEAST A QUORUM OF THREE MEMBERS)  ...
." 

THREE COURTS OF APPEALS HAVE EXPRESSED APPROVAL OF THE RULE.  SEE
DRATH V. FTC.  99 U.S. APP. D.C. 289, 239 F.2D 452; ATLANTIC REFINING
CO. V. FTC, 344 F.2D 599 (C.A. 6TH CIR.); LAPEYRE V. FTC, 366 F.2D 117
(C.A. 5TH CIR.).  HOWEVER, BOTH THE FIFTH AND SIXTH CIRCUIT DECISIONS
ERRONEOUSLY READ THE RULE AS PROVIDING, OF ITSELF, "FOR DECISION BY THE
MAJORITY OF PANELS OF THREE MEMBERS."  366 F.2D, AT 122; 344 F. D, AT
607. 

FN5  THE QUESTION IN FRISCHER WAS WHETHER THE UNITED STATES TARIFF
COMMISSION MIGHT ACT ON MAJORITY VOTE OF A QUORUM.  THE ENABLING ACT
CONTAINED NOTHING ON THE SUBJECT OF A QUORUM.  39 STAT. 795-798.  THE
PRESENT STATUTE PROVIDES THAT A MAJORITY OF THE COMMISSIONERS
CONSTITUTES A QUORUM.  19 U.S.C. SEC. 1330(C). 

FN6  SEE, E.G., MISSOURI PAC. R. CO. V. KANSAS, 248 U.S. 276 (1919);
UNITED STATES V. BALLIN, 144 U.S. 1 (1892); BROWN V. DISTRICT OF
COLUMBIA, 127 U.S. 579 (1888); MOUNTAIN STATES TEL. & TEL. CO. V.
PEOPLE EX REL., 68 COLO. 487, 499-500, 190 P. 513, 517-518 (1920);
MARTIN V. LEMON, 26 CONN. 192 (1857); KAISER V. REAL ESTATE COMM'N, 155
A.2D 715 (D.C.  MUN.  CT. APP. 1959); DAVIDSON V. STATE, - IND. - , 221
N.E.2D 814 (1966); LOUISVILLE & JEFFERSON COUNTY PLANNING & ZONING
COMM'N V. OGDEN, 307 KY. 362, 210 S.W.2D 771 (1948); CODMAN V. CROCKER,
203 MASS. 146, 89 N.E. 177 (1909); OAKLAND V. BOARD OF CONSERVATION &
DEV., 98 N.J.L. 806, 122 A. 311 (1923); HILL V. PONDER, 221 N.C. 58,
62, 19 S.E.2D 5, 8 (1942); SLAVENS V. STATE BD. OF REAL ESTATE
EXAMINERS, 166 OHIO ST. 285, 141 N.E.2D 887 (1957); GREEN V. EDMONDSON,
23 OHIO DEC. 85 COMMON PLEAS 1912); BRAY V. BARRY, 91 R.I.  34, 41-42,
160 A.2D 557, 581 (1960); E.C. OLSEN CO. V. STATE TAX COMM'N, 109 UTAH
563, 570-571, 168 P.2D 324, 328 (1946); 80 HARV. L. REV. 1589-1590
(1967); 42 N.Y.U.L. REV.  135, 136-138 (1967).  SEE ALSO SNIDER V.
RINEHART, 18 COLO. 18, 23-24, 31 P. 716, 718 (1892); CONSTITUTION,
JEFFERSON'S MANUAL AND RULES OF THE HOUSE OF REPRESENTATIVES, H.R. DOC.
NO. 529, 89TH CONG., 2D SESS., SECS 52-57, 409, 508-510. 

FN7  THE AUTHORITIES CITED IN FRISCHER AS SUPPORTING THE EXCEPTION
FAIL WITH ONE EXCEPTION TO DO SO.  FOUR OF THE DECISIONS CITED DEALT
SIMPLY WITH THE RULE IN CASES WHERE A COURT IS EQUALLY DIVIDED IN ITS
VOTE.  MADLEM'S APPEAL, 103 PA. 584 (1883); PUTNAM V. REES, 12 OHIO 21
(1843); NORTHERN R. CO. V. CONCORD R. CO., 50 N.H. 166 (1870); AYRES V.
BENSLEY, 32 CAL.  632 (1867).  ANOTHER, IN ADDITION TO DEALING WITH THE
QUESTION OF AN EQUALLY DIVIDED COURT, INVOLVED A CONSTITUTIONAL
PROVISION FOR THE CONCURRENCE OF A MAJORITY OF THE JUDGES SITTING. 
MUGGE V. TATE, JONES & CO., 51 FLA. 255, 41 SO. 603 (1906).  THE OTHERS
ARE LIKEWISE NOT IN POINT.  DEGLOW V. KRUSE, 57 OHIO ST. 434, 49 N.E.
477 (1898)(TWO OF THREE CONSTITUTES QUORUM, BOTH MUST CONCUR); DENVER &
R.G.R. CO. V. BURCHARD, 35 COLO. 539, 558, 86 P. 749, 755 (1906)
(CONSTITUTIONAL REQUIREMENT THAT THREE OF SEVEN JUDGES CONCUR).  THE
WHOLE OF THE COURT'S DISCUSSION IN THE ONLY DECISION IN POINT, JOHNSON
V. STATE, 1 GA. 271 (1846), WAS "THE LAW, ORGANIZING THE INFERIOR
COURT, CONSTITUTES FIVE JUSTICES THE COURT.  WE HOLD THE CONCURRENCE OF
A MAJORITY OF THE WHOLE NUMBER NECESSARY TO THE VALIDITY OF THEIR
ACTION."  ID., AT 274.  NO AUTHORITY WAS CITED FOR THIS HOLDING. 

IN ADDITION, RESPONDENT CITES PAINE V. FOSTER, 9 OKLA. 213, 53 P. 109
(1896), 9 OKLA.  257, 59 P. 252 (1899).  ITS HOLDING WAS, HOWEVER,
PREDICATED ON A STATUTORY REQUIREMENT THAT THREE JUDGES OF A FIVE-JUDGE
COURT MUST CONCUR IN ORDER TO REVERSE A LOWER COURT JUDGEMENT.  SEE 9
OKLA. 257, 259, 260, 60 P. 24 (DISSENTING OPINION). 

CONGRESS HAS PRESCRIBED A QUORUM OF SIX JUSTICES FOR THIS COURT BUT
HAS NOT PROVIDED HOW MANY OF THE QUORUM CAN ACT FOR THE COURT.  28
U.S.C. SEC 1.  CONGRESS, HAS, HOWEVER, DEALT EXPRESSLY WITH THE LATTER
MATTER IN THE STATUTES CONCERNING THE COURTS OF APPEALS, 28 U.S.C.
SEC. 46(D); THE COURT OF CLAIMS, 28 U.S.C. SEC. 175(F)(1964 ED., SUPP.
II); AND THE COURT OF CUSTOMS AND PATENT APPEALS, 28 U.S.C. SEC 215. 

FN8  ACCORD, MARTIN V. LEMON; KAISER V. REAL ESTATE COMM'N;
LOUISVILLE & JEFFERSON COUNTY PLANNING & ZONING COMM'N V. OGDEN;
OAKLAND V. BOARD OF CONSERVATION & DEV.; SLAVENS V. STATE BD. OF REAL
ESTATE EXAMINERS; BRAY V. BARRY; E.C. OLSEN CO. V. STATE TAX COMM'N,
ALL SUPRA, N. 6. 

FN9  IN FACT, OF THE THREE AGENCIES CITED ONLY THE ICC AND NLRB HAVE
EXPRESS AUTHORITY TO ACT THROUGH A MAJORITY OF A QUORUM; THE FPC
STATUTE SIMPLY STIPULATES THAT THREE OF FIVE COMMISSIONERS CONSTITUTE A
QUORUM, A STATUTORY EQUIVALENT OF THE FTC RULE SANCTIONED BY THE COURT
OF APPEALS. 

THE ATOMIC ENERGY COMMISSION, 42 U.S.C. SEC 2031, AND THE
RENEGOTIATION BOARD, 50 U.S.C.  APP. SEC. 1217(B), ALSO ARE EXPRESSLY
AUTHORIZED TO ACT ON THE MAJORITY VOTE OF A QUORUM.  THE FEDERAL
MARITIME COMMISSION, 46 U.S.C. SEC 1111, AS AMENDED BY REORGANIZATION
PLAN NO. 7 OF 1961, ON THE OTHER HAND MAY ACT ONLY ON THE UNANIMOUS
VOTE OF A QUORUM.  LIKE THE ACT CREATING THE FTC, THE ACTS CREATING THE
CIVIL AERONAUTICS BOARD, 49 U.S.C. SEC. 1321(C), THE FEDERAL
COMMUNICATIONS COMMISSION, 47 U.S.C. SEC. 154(H), THE FEDERAL POWER
COMMISSION, 16 U.S.C. SEC 792, THE SECURITIES AND EXCHANGE COMMISSION,
15 U.S.C. SEC 78D, AND THE TARIFF COMMISSION, 19 U.S.C. SEC. 1330(C),
SAY NOTHING ON THE SUBJECT.  THESE LATTER AGENCIES NONETHELESS ACT ON
THE MAJORITY VOTE OF A QUORUM AND IN THE CASES OF THE CAB, THE FCC, THE
SEC, AND THE TARIFF COMMISSION, THE PRACTICE HAS BEEN JUDICIALLY
APPROVED.  BRANIFF AIRWAYS, INC. V. CAB, - U.S. APP. D.C. - , - , 379
F.2D 453, 460 (DICTUM); WIBC, INC. V. FCC, 104 U.S. APP. D.C. 126, 128,
259 F.2D 941, 943 (DICTUM); GEARHART & OTIS, INC. V. SEC. 121 U.S. APP.
D.C. 186, 189, 348 F.2D 798, 801 (DICTUM); FRISCHER & CO. V. BAKELITE
CORP., SUPRA (TARIFF COMMISSION).  IN THE CASE OF THE FTC, THE PRACTICE
HAS BEEN JUDICIALLY APPROVED IN ATLANTIC REFINING CO. V. FTC, SUPRA,
AND LAPEYRE V. FTC, SUPRA.  THE EARLIEST FTC DECISION NOTING THE
PRACTICE IS APPARENTLY LURIA BROS., 62 F.T.C. 243, 646, 655, DECIDED IN
1963.  THE FIRST COURT CHALLENGE TO THE PRACTICE SEEMS TO HAVE BEEN
THAT IN 1965 IN ATLANTIC REFINING CO. V. FTC, SUPRA.  CF. FORSTER MFG.
CO. V. FTC, 361 F.2D 340 (C.A. 1ST CIR.).  SEE GENERALLY 35 GEO. WASH.
L. REV. 398 (1966); 80 HARV. L. REV. 1589 (1967). 

FN10  REORGANIZATION PLAN NO. 4 OF 1961, 75 STAT. 837, 15 U.S.C. SEC
41.  UNDER THE REORGANIZATION ACT, 5 U.S.C. SECS 133Z-1 TO 133Z-15, THE
PLAN BECAME OPERATIVE WHEN NOT DISAPPROVED BY CONGRESS WITHIN 60 DAYS
OF ITS SUBMISSION BY THE PRESIDENT.  RESOLUTIONS TO DISAPPROVE PLAN NO.
4 FAILED TO PASS IN BOTH THE HOUSE AND THE SENATE.  107 CONG. REC.
10844-10856 (HOUSE); ID., AT 11721-11740 (SENATE). 

FN11  SEE PLAN NO. 1, H.R. DOC. NO. 146, 87TH CONG., 1ST SESS. (1961)
(SEC); PLAN NO. 2, H.R. DOC. NO. 147 (FCC); PLAN NO. 3, H.R. DOC. NO.
152 (CAB); PLAN NO. 4, H.R. DOC. NO. 159 (FTC); PLAN NO. 5, H.R. DOC.
NO. 172 (NLRB); PLAN NO. 7, H.R. DOC. NO. 187 (FMC).  PLANS 1, 2, AND 5
WERE DISAPPROVED BY CONGRESS, 107 CONG. REC. 10463 (NO. 2); ID., AT
11003 (NO. 1); ID., AT 13078 (NO. 5).  PLANS 3, 4, AND 7 BECAME
EFFECTIVE.  SEE 75 STAT. 837, 840. 

FN12  SEE NN. 10-11, SUPRA. 

FN13  IT IS TRUE THAT THE COMMISSION'S FIRST "OFFICIAL"
ACKNOWLEDGEMENT OF ITS PRACTICE OF RENDERING TWO-TO-ONE DECISIONS
APPARENTLY DID NOT COME UNTIL 1963.  SEE LURIA BROS., SUPRA, N. 9. 
NEVERTHELESS, FROM THE BEGINNING THE COMMISSION HAS PERIODICALLY HAD
UNFILLED VACANCIES FOR SIGNIFICANT LENGTHS OF TIME, VACANCIES WHICH
CONGRESS OF COURSE HAD TO KNOW ABOUT.  THUS BETWEEN JUNE 1, 1918, AND
JANUARY 16, 1919, THERE WERE TWO SIMULTANEOUS VACANCIES; AND THERE HAVE
BEEN SEVERAL SINGLE VACANCIES OF SOME DURATION - E.G., SEPTEMBER 1921
TO JUNE 1922, JULY 1934 TO AUGUST 1935, OCTOBER 1949 TO OCTOBER 1950. 
IF, AS RESPONDENT SUGGESTS, THE PROSPECT OF THE COMMISSION ACTING
THROUGH THE SPLIT DECISION OF THREE COMMISSIONERS SHOULD BE SO
INCONSISTENT WITH THE NATURE OF THE COMMISSION, IT IS INDEED STRANGE
THAT CONGRESSMEN CONVERSANT WITH RULES OF PARLIAMENTARY PROCEDURE
GOVERNING VOTING, SEE JEFFERSON'S MANUAL, SUPRA, N. 6, AS WELL AS THE
METHODOLOGY OF JUDICIAL DECISION MAKING SHOULD NOT IN ALL THESE YEARS
HAVE TAKEN STEPS TO PREVENT A COMMISSION - REDUCED TO THREE BY A DOUBLE
VACANCY OR BY A SINGLE VACANCY PLUS AN ABSTENTION - FROM RENDERING SUCH
DECISION. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















WYANDOTTE CO. V. UNITED STATES 389 U.S. 191 


NO. 31.  ARGUED OCTOBER 16-17, 1967.  - DECIDED DECEMBER 4, 1967.  - 367
F.2D 971, AFFIRMED. 


THIS CASE INVOLVES TWO LIBELS ARISING OUT OF THE ALLEGEDLY NEGLIGENT
SINKING OF VESSELS IN NAVIGABLE WATERWAYS OF THE UNITED STATES.  IN
UNITED STATES V. CARGILL, INC., THE GOVERNMENT, AFTER BEING NOTIFIED OF
THE SINKING AND ABANDONMENT OF TWO BARGES, SOUGHT A DECREE THAT THE
PARTIES RESPONSIBLE FOR THE ALLEGEDLY NEGLIGENT SINKING BE DECLARED
RESPONSIBLE FOR REMOVING THE IMPEDIMENT TO NAVIGATION WHICH THE WRECKS
CONSTITUTED.  IN UNITED STATES V. WYANDOTTE TRANSPORTATION CO., THE
GOVERNMENT CLAIMED THAT A BARGE HAD BEEN NEGLIGENTLY SUNK AND DEMANDED
THAT THE WRECK BE REMOVED.  WHEN THIS DEMAND WAS REJECTED, THE
GOVERNMENT REMOVED THE SUNKEN BARGE AND CARGO AND BROUGHT SUIT IN REM
AGAINST THE BARGE AND ITS CARGO AND IN PERSONAM AGAINST THE BARGE OWNER
AND OTHERS TO EFFECT REIMBURSEMENT FOR THE SUBSTANTIAL COSTS OF
REMOVAL.  THE DISTRICT COURT CONSOLIDATED THE ACTIONS AND GRANTED
SUMMARY JUDGMENT IN EACH INSTANCE AGAINST THE UNITED STATES, HOLDING
THAT THE GOVERNMENT HAS NO IN PERSONAM RIGHTS AGAINST THOSE RESPONSIBLE
FOR HAVING NEGLIGENTLY SUNK A VESSEL BUT THAT IT IS LIMITED TO AN IN
REM RIGHT AGAINST THE VESSEL AND ITS CARGO.  THE COURT OF APPEALS
REVERSED AND REMANDED THE CASE TO THE DISTRICT COURT FOR TRIAL ON THE
ISSUE OF NEGLIGENCE.  IT HELD THAT UNDER THE RIVERS AND HARBORS ACT OF
1899, AS AMENDED, THE GOVERNMENT MAY ASSERT IN PERSONAM RIGHTS AGAINST
THOSE RESPONSIBLE FOR THE NEGLIGENT SINKING OF A VESSEL.  SECTION 15 OF
THE ACT MAKES IT UNLAWFUL TO "CARELESSLY SINK, OR PERMIT OR CAUSE TO BE
SUNK A VESSEL IN NAVIGABLE WATERS."  PETITIONERS CONTEND THAT THE ACT'S
SPECIFIC REMEDIES, WHICH INCLUDE CRIMINAL PENALTIES, ARE EXCLUSIVE AND
PRECLUDE THE GOVERNMENT FROM OBTAINING THE RELIEF IT HAS SOUGHT IN THE
TWO LIBELS.  THEY NOTE THAT, UNDER THE ACT, FAILURE TO REMOVE A VESSEL
IS CONSIDERED AN ABANDONMENT AND SUBJECTS A CRAFT TO REMOVAL BY THE
GOVERNMENT, WHICH MAY RETAIN THE PROCEEDS OF THE SALE OF THE WRECK. 
HELD: THE REMEDIES AND PROCEDURES FOR THE ENFORCEMENT OF SEC 15 ARE NOT
EXCLUSIVE AND DO NOT FORECLOSE IN PERSONAM RELIEF AGAINST A PARTY WHO
NEGLIGENTLY SINKS A VESSEL IN A NAVIGABLE WATERWAY.  PP. 200-210. 

(A)  THE GOVERNMENT IS A PRINCIPAL BENEFICIARY OF THE ACT, WHICH WAS
OBVIOUSLY INTENDED TO PREVENT OBSTRUCTIONS IN THE NATION'S WATERWAYS. 
P. 201. 

(B)  THE GENERAL RULE THAT THE UNITED STATES MAY SUE TO PROTECT ITS
INTEREST IS NOT NECESSARILY INAPPLICABLE WHEN THE INTEREST SOUGHT TO BE
PROTECTED IS EXPRESSED IN A STATUTE CONTAINING CRIMINAL PENALTIES FOR
ITS VIOLATION,  PP. 201-202. 

(C)  THE CRIMINAL PENALTIES OF THE ACT AND THE GOVERNMENT'S IN REM
RIGHTS WOULD NOT ADEQUATELY REIMBURSE THE GOVERNMENT FOR REMOVAL
EXPENSES.  P. 202. 

(D)  THE PRINCIPLES OF UNITED STATES V. REPUBLIC STEEL CORP., 362 U.S.
482 (1960), WHERE THE GOVERNMENT WAS ALLOWED INJUNCTIVE RELIEF TO
COMPEL REMOVAL OF AN OBSTRUCTION IN A WATERWAY EVEN THOUGH SUCH RELIEF
WAS NOWHERE SPECIFICALLY AUTHORIZED IN THE ACT, ARE APPLICABLE, BY
ANALOGY, TO THE ISSUES HERE.  PP. 202-203. 

(E)  THE AVAILABILITY TO THE GOVERNMENT OF DECLARATORY RELIEF IN THE
FORM OF AN ORDER THAT A NEGLIGENT PARTY IS RESPONSIBILE FOR RECTIFYING
THE WRONG DONE TO MARITIME COMMERCE BY A VIOLATION OF SEC 15 IS
INFERABLE FROM THE PROHIBITION CONTAINED IN THAT SECTION.  P. 204. 

(F)  THE EXERCISE BY THE GOVERNMENT OF THE RIGHT OF REMOVAL PROVIDED
BY THE STATUTE DOES NOT RELIEVE NEGLIGENT PARTIES OF THE RESPONSIBILITY
FOR MAKING RESTITUTION FOR THE REMOVAL.  P. 205. 

(G)  PETITIONERS ERR IN BELIEVING THAT THE ABANDONMENT PORTIONS OF
THE ACT CONFER AN ABSOLUTE RIGHT UPON A SHIPOWNER TO ABANDON HIS SUNKEN
CRAFT WITH NO IN PERSONAM LIABILITY.  THOSE PROVISIONS MERELY GRANT A
RIGHT OF REMOVAL TO THE GOVERNMENT, AND DO NOT NEGATE THE GOVERNMENT'S
RIGHTS TO DECLARATORY RELIEF OR TO RECOVER REMOVAL EXPENSES.  PP. 206
207. 

(H)  THERE IS NO SUPPORT IN THE STATUTE, IN THE LEGISLATIVE HISTORY,
OR IN NONSTATUTORY LAW, FOR THE RULE THAT A SHIPOWNER WHO HAS
NEGLIGENTLY SUNK A VESSEL MAY ABONDON IT AND BE INSULATED FROM ALL BUT
IN REM LIABILITY.  P. 208-209. 

WYANDOTTE TRANSPORTATION CO. ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

TWO CASES, CONSOLIDATED BY THE TRIAL COURT AND RAISING RELATED
ISSUES, ARE HERE INVOLVED.  IN UNITED STATES V. CARGILL, INC., THE
GOVERNMENT ASKED THAT PARTIES RESPONSIBLE FOR THE ALLEGEDLY NEGLIGENT
SINKING OF A VESSEL IN AN INLAND WATERWAY BE DECLARED RESPONSIBLE FOR
REMOVING THE IMPEDIMENT TO NAVIGATION THUS CREATED.  IN UNITED STATES
V. WYANDOTTE TRANSPORTATION CO. THE UNITED STATES HAD ITSELF REMOVED A
SUNKEN VESSEL; CLAIMING THAT THE VESSEL HAD BEEN NEGLIGENTLY SUNK, IT
SOUGHT REIMBURSEMENT FOR THE COSTS OF REMOVAL.  THE QUESTION NOW BEFORE
US FOR DECISION IS WHETHER THE RELIEF REQUESTED IN THESE CASES IS
AVAILABLE TO THE UNITED STATES. 

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
LOUISIANA CONCLUDED THAT SUCH RELIEF IS NOT AVAILABLE.  AFTER THE CASES
WERE CONSOLIDATED, THAT COURT GRANTED SUMMARY JUDGMENT AGAINST THE
UNITED STATES IN EACH INSTANCE.  THE COURT DECIDED THAT THE GOVERNMENT
HAS NO IN PERSONAM RIGHTS AGAINST THOSE RESPONSIBLE FOR HAVING
NEGLIGENTLY SUNK A VESSEL.  IN ITS VIEW, THE UNITED STATES IS LIMITED
TO AN IN REM RIGHT AGAINST THE CARGO OF THE NEGLIGENTLY SUNK VESSEL AND
AGAINST THE VESSEL ITSELF.  UNITED STATES V. CARGILL, INC., 1964 A.M.C.
1742. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED.  IT HELD THAT
UNDER THE RIVERS AND HARBORS ACT OF 1899, 30 STAT. 1151 ET SEQ., AS
AMENDED, 33 U.S.C. SEC 401 ET SEQ., THE UNITED STATES MAY ASSERT IN
PERSONAM RIGHTS - TO INJUNCTIVE OR DECLARATORY RELIEF OR DAMAGES -
AGAINST THOSE RESPONSIBLE FOR THE NEGLIGENT SINKING OF A VESSEL. 
UNITED STATES V. CARGILL, INC., 367 F.2D 971 (1966).  BECAUSE OF A
CONFLICT AMONG THE CIRCUITS AND BECAUSE OF THE IMPORTANT QUESTION
REGARDING INTERPRETATION OF A STATUTE OF THE UNITED STATES, WE GRANTED
CERTIORARI.  386 U.S. 906 (1967).  WE AFFIRM THE JUDGMENT BELOW. 

THE CRUCIAL FACTS OF BOTH CASES OCCURRED IN MARCH 1961.  THE CARGILL
LIBEL ALLEGES THAT, AT THAT TIME, A SUPERTANKER BOUND UP THE
MISSISSIPPI FOR BATON ROUGE, LOUISIANA, COLLIDED WITH TWO BARGES MOORED
BY A TUG.  THE BARGES WERE OWNED BY PETITIONER CARGO CARRIERS, INC.,
AND PETITIONER JEFFERSONVILLE BOAT AND MACHINE CO., RESPECTIVELY.  THE
GOVERNMENT WAS NOTIFIED IMMEDIATELY AFTER THE ACCIDENT THAT THE TWO
BARGES HAD SUNK.  A FEW DAYS LATER, IT WAS SERVED WITH NOTICE THAT THE
BARGES WERE BEING ABANDONED.  THE UNITED STATES REFUSED, HOWEVER, TO
ACCEPT ABANDONMENT OR TO ASSUME RESPONSIBILITY FOR REMOVING THE
WRECKS.  IN DECEMBER 1962, IT BROUGHT SUIT AGAINST THE OWNERS,
MANAGERS, CHARTERERS, AND INSURERS OF THE TWO BARGES, SEEKING A DECREE
THAT THE RESPONDENTS WERE RESPONSIBLE FOR REMOVING THE SUNKEN VESSELS. 
THE GOVERNMENT CHARGED THAT NEGLIGENCE IN THE EQUIPPING, MANNING, AND
MOORING OF THE BARGES HAD CAUSED THE SINKING.  TO THIS DATE, THE BARGES
INVOLVED IN THIS CASE REMAIN IN THE MISSISSIPPI. 

THE WYANDOTTE LIBEL IS FOUNDED ON FACTS MORE DRAMATIC.  A BARGE
LOADED WITH 2,200,000 POUNDS OF LIQUID CHLORINE SANK WHILE BEING PUSHED
IN THE MISSISSIPPI NEAR VIDALIA, LOUISIANA.  WYANDOTTE, THE OWNER OF
THE BARGE, AT FIRST MADE SOME ATTEMPTS TO LOCATE AND RAISE THE WRECK. 
BUT THEN, IN NOVEMBER 1961, WYANDOTTE INFORMED THE ARMY CORPS OF
ENGINEERS THAT IT BELIEVED FURTHER EFFORTS TO RAISE THE BARGE WOULD BE
UNSUCCESSFUL.  WYANDOTTE STATED THAT IT WAS ABANDONING THE VESSEL.  THE
GOVERNMENT BEGAN A STUDY OF THE DANGER POSED BY SUCH A SUBSTANTIAL LOAD
OF CHLORINE AT THE BOTTOM OF THE MISSISSIPPI.  IT WAS FEARED THAT IF
ANY CHLORINE ESCAPED IT WOULD BE IN THE FORM OF LETHAL CHLORINE GAS,
WHICH MIGHT CAUSE A LARGE NUMBER OF CASUALTIES.  THE GOVERNMENT
DEMANDED THAT WYANDOTTE REMOVE THE BARGE.  WYANDOTTE REFUSED TO TO
THIS.  (FN1) 

THE UNITED STATES THEN MOVED TO AVERT A CATASTROPHE BY LOCATING AND
RAISING THE BARGE AND ITS DEADLY CARGO.  IN OCTOBER 1962, THE PRESIDENT
PROCLAIMED THE PRESENCE OF THE BARGE TO BE A MAJOR DISASTER UNDER THE
DISASTER RELIEF ACT, 64 STAT. 1109, 42 U.S.C. SECS 2855-1855G.  SAFETY
PRECAUTIONS ON A GRAND SCALE WERE TAKEN, AND A TEAM OF EXPERIENCED
DIVERS SOUGHT GINGERLY TO RAISE WYANDOTTE'S BARGE.  THESE OPERATIONS,
COSTING THE UNITED STATES SOME $3,081,000, PROVED SUCCESSFUL. 

THE UNITED STATES DEMANDED THAT THE OWNERS AND OPERATORS OF THE BARGE
REIMBURSE THE GOVERNMENT FOR ITS EXPENSES.  THIS DEMAND WAS REJECTED. 
IN JANUARY 1963, THE GOVERNMENT BROUGHT SUIT, IN REM AGAINST THE BARGE
AND HER CARGO,  (FN2)  AND IN PERSONAM AGAINST THE OWNER OF THE BARGE,
THE OWNER OF THE BOAT THAT HAD BEEN PUSHING THE BARGE WHEN IT SANK, AND
THE OWNER OF THE CHLORINE CARGO.  (FN3)  THE LIBEL CHARGED THESE
PARTIES WITH NEGLIGENCE AND FAULT IN THE DESIGN, TOWING, MANNING,
MOORING, AND EQUIPPING OF THE BARGE.  THE GOVERNMENT SOUGHT A DECREE
FOR THE COSTS IT INCURRED IN REMOVING THE WRECK.  (FN4)

                                I. 

ALTHOUGH THE GOVERNMENT HAS ADVNACED SEVERAL DISCRETE GROUNDS FOR
AFFIRMANCE, WE DO NOT PAUSE TO EXAMINE EACH OF THEM.  (FN5)  WE AGREE
THAT SEC 15 OF THE RIVERS AND HARBORS ACT OF 1899, 33 U.S.C. SEC 409,
READ IN LIGHT OF OUR DECISION IN UNITED STATES V. REPUBLIC STEEL CORP.,
362 U.S. 482 (1960), CONTROLS THE ISSUES HERE PRESENTED.  SECTION 15
READS IN RELEVANT PART AS FOLLOWS: 

"IT SHALL NOT BE LAWFUL  ...  TO VOLUNTARILY OR CARELESSLY SINK, OR
PERMIT OR CAUSE TO BE SUNK, VESSELS OR OTHER CRAFT IN NAVIGABLE
CHANNELS  ...  .  AND WHENEVER A VESSEL, RAFT OR OTHER CRAFT IS WRECKED
AND SUNK IN A NAVIGABLE CHANNEL, ACCIDENTALLY OR OTHERWISE, IT SHALL BE
THE DUTY OF THE OWNER OF SUCH SUNKEN CRAFT TO IMMEDIATELY MARK IT WITH
A BUOY OR BEACON DURING THE DAY AND A LIGHTED LANTERN AT NIGHT, AND TO
MAINTAIN SUCH MARKS UNTIL THE SUNKEN CRAFT IS REMOVED OR ABANDONED, AND
THE NEGLECT OR FAILURE OF THE SAID OWNER SO TO DO SHALL BE UNLAWFUL;
AND IT SHALL BE THE DUTY OF THE OWNER OF SUCH SUNKEN CRAFT TO COMMENCE
THE IMMEDIATE REMOVAL OF THE SAME, AND PROSECUTE SUCH REMOVAL
DILIGENTLY, AND FAILURE TO DO SO SHALL BE CONSIDERED AS AN ABONDONMENT
OF SUCH CRAFT, AND SUBJECT THE SAME TO REMOVAL BY THE UNITED STATES AS
PROVIDED FOR IN SECTIONS 411-416, 418, AND 502 OF THIS TITLE."  33
U.S.C. SEC 409. 

PETITIONERS DO NOT DISPUTE, AS INDEED THEY COULD NOT, THAT THE
NEGLIGENT SINKING OF A VESSEL FALLS WITHIN THE PROHIBITION OF THE FIRST
ABOVE-QUOTED CLAUSE OF SEC 15.  (FN6)  THEY CONTEND, HOWEVER, THAT THE
ACT CONTAINS SPECIFIC REMEDIES FOR SUCH A VIOLATION OF SEC 15, AND THAT
THOSE REMEDIES WERE MEANT BY CONGRESS TO BE EXCLUSIVE OF ALL OTHERS. 
PETITIONERS POINT TO THE SEC 15 DUTY OF THE OWNER TO MARK AND REMOVE A
SUNKEN CRAFT.  THEY NOTE THAT FAILURE TO REMOVE "SHALL BE CONSIDERED AS
AN ABANDONMENT OF SUCH CRAFT, AND SUBJECT THE SAME TO REMOVAL BY THE
UNITED STATES."  AND PETITIONERS CALL OUR ATTENTION TO SECS 19 AND 20
OF THE ACT, 33 U.S.C. SECS 414-415, WHICH SET FORTH THE PROCEDURE
WHEREBY THE UNITED STATES MAY REMOVE A SUNKEN CRAFT THAT "SHALL BE
CONSIDERED AS" ABANDONED UNDER SEC 15.  SECTION 19 PROVIDES THAT
WHENEVER A SUNKEN VESSEL EXISTS AS AN OBSTRUCTION TO ANY NAVIGABLE
WATERS OF THE UNITED STATES FOR A PERIOD LONGER THAN 30 DAYS, OR
WHENEVER THE ABANDONMENT OF SUCH OBSTRUCTION CAN BE LEGALLY ESTABLISHED
IN A SHORTER TIME, THE SUNKEN VESSEL "SHALL BE SUBJECT TO BE BROKEN UP,
REMOVED, SOLD, OR OTHERWISE DISPOSED OF BY THE SECRETARY OF THE ARMY AT
HIS DISCRETION, WITHOUT LIABILITY FOR ANY DAMAGE TO THE OWNERS OF THE
SAME."  THAT SECTION FURTHER CONTEMPLATES "THAT ANY MONEY RECEIVED FROM
THE SALE OF ANY SUCH WRECK  ...  SHALL BE COVERED INTO THE TREASURY OF
THE UNITED STATES."  33 U.S.C. SEC. 414.  SECTION 20, AN EMERGENCY
PROVISION APPLICABLE ONLY WHEN A SUNKEN VESSEL OBSTRUCTS A WATERWAY "IN
SUCH A MANNER AS TO STOP, SERIOUSLY INTERFERE WITH, OR SPECIALLY
ENDANGER NAVIGATION," 33 U.S.C. SEC 415, IS SIMILAR IN STRUCTURE TO SEC
19.  (FN7) 

FINALLY, PETITIONERS EMPHASIZE THAT SEC 16 OF THE ACT PROVIDES
CRIMINAL PENALTIES FOR "EVERY PERSON AND EVERY CORPORATION THAT SHALL
VIOLATE, OR THAT SHALL KNOWINGLY AID, ABET, AUTHORIZE, OR INSTIGATE A
VIOLATION OF THE PROVISIONS OF SEC 15."  33 U.S.C. SEC 411.  (FN8)
THEY POINT OUT THAT SEC 12 OF THE ACT, 33 U.S.C. SEC 406, WHICH
PROVIDES PENALTIES FOR VIOLATIONS OF SEC 10, 33 U.S.C. SEC 403,  (FN9)
EXPRESSLY AUTHORIZES THE INJUNCTIVE REMEDY.  THEY ARGUE THAT THE LACK
OF SUCH AN AUTHORIZATION IN SEC 16 SHOULD BE TAKEN TO MEAN THAT
CONGRESS DID NOT INTEND THE UNITED STATES TO BE ABLE TO OBTAIN WHAT IS,
IN EFFECT, INJUNCTIVE RELIEF AS A REMEDY FOR A VIOLATION OF SEC 15. 
(FN10) 

THE POSITION OF PETITIONERS IS, THEREFORE, THAT IN THE CASE OF A
NEGLIGENTLY SUNK VESSEL, THE GOVERNMENT MAY REQUIRE THE OWNER TO MARK
IT; IT MAY EXPECT HIM TO REMOVE IT OR FORFEIT HIS INTEREST IN THE
VESSEL; AND IF THE GOVERNMENT PROCEEDS TO REMOVE THE VESSEL, IT
POSSESSES THE RIGHT TO SELL VESSEL AND CARGO AND RETAIN THE PROCEEDS OF
THESE SALES.  (FN11)  MOREOVER, THE GOVERNMENT MAY PROCEED CRIMINALLY,
UNDER SEC 16, AGAINST THOSE RESPONSIBLE FOR THE NEGLIGENT SINKING. 
BUT, PETITIONERS ARGUE, THE GOVERNMENT MAY DO NO MORE.  UNDER THEIR
VIEW, THE VERY DETAIL OF THE RIVERS AND HARBORS ACT NEGATES THE
POSSIBILITY THAT CONGRESS INTENDED THE GOVERNMENT TO BE ABLE TO RECOVER
REMOVAL EXPENSES EXCEEDING THE VALUE OF THE VESSEL AND ITS CARGO. 
PETITIONERS WOULD APPLY THE SAME ANALYSIS TO A GOVERNMENT ACTION FOR
DECLARATORY OR INJUNCTIVE RELIEF.  INDEED, PETITIONERS BELIEVE THAT
AUTHORIZATION OF THE INJUNCTION REMEDY IN ANOTHER, ANALOGOUS, SECTION
OF THE ACT INDICATES CONGRESSIONAL INTENT TO WITHHOLD DECLARATORY OR
INJUNCTIVE RELIEF AS A MEANS OF ENFORCING SEC 15.  (FN12) 

WE DO NOT AGREE.  PETITIONERS' INTERPRETATION OF THE RIVERS AND
HARBORS ACT OF 1899 WOULD ASCRIBE TO CONGRESS AN INTENT AT VARIANCE
WITH THE PURPOSE OF THAT STATUTE.  PETITIONERS' PROPOSAL IS, MOREOVER,
IN DISHARMONY WITH OUR OWN PRIOR CONSTRUCTION OF THE ACT, WITH OUR
DECISIONS ON ANALOGOUS ISSUES OF STATUTORY CONSTRUCTION, AND WITH A
MAJOR MARITIME STATUTE OF THE UNITED STATES.  IF THERE WERE NO OTHER
REASONABLE INTERPRETATION OF THE STATUTE, OR IF PETITIONERS COULD
ADDUCE SOME PERSUASIVE INDICATION THAT THEIR INTERPRETATION ACCORDS
WITH THE CONGRESSIONAL INTENT, WE MIGHT BE MORE DISPOSED TO ACCEPT THAT
INTERPRETATION.  BUT OUR READING OF THE ACT DOES NOT LEAD US TO THE
CONCLUSION THAT CONGRESS MUST HAVE INTENDED THE STATUTORY REMEDIES AND
PROCEDURES TO BE EXCLUSIVE OF ALL OTHERS.  THERE IS NO INDICATION
ANYWHERE ELSE - IN THE LEGISLATIVE HISTORY OF THE ACT, IN THE
PREDECESSOR STATUTES, OR IN NONSTATUTORY LAW - THAT CONGRESS MIGHT HAVE
INTENDED THAT A PARTY WHO NEGLIGENTLY SINKS A VESSEL SHOULD BE SHIELDED
FROM PERSONAL RESPONSIBILITY.  WE THEREFORE HOLD THAT THE REMEDIES AND
PROCEDURES SPECIFIED BY THE ACT FOR THE ENFORCEMENT OF SEC 15 WERE NOT
INTENDED TO BE EXCLUSIVE.  APPLYING THE PRINCIPLES OF OUR DECISION IN
REPUBLIC STEEL, WE CONCLUDE THAT OTHER REMEDIES, INCLUDING THOSE HERE
SOUGHT, ARE AVAILABLE TO THE GOVERNMENT. 

                       II. 

ARTICLE I, SEC 8, OF THE CONSTITUTION GRANTS TO CONGRESS THE POWER TO
REGULATE COMMERCE.  FOR THE EXERCISE OF THIS POWER, THE NAVIGABLE
WATERS OF THE UNITED STATES ARE TO BE DEEMED THE "PUBLIC PROPERTY OF
THE NATION, AND SUBJECT TO ALL THE REQUISITE LEGISLATION BY CONGRESS." 
GILMAN V. PHILADELPHIA, 3 WALL.  713, 725 (1866).  THE FEDERAL
GOVERNMENT IS CHARGED WITH ENSURING THAT NAVIGABLE WATERWAYS, LIKE ANY
OTHER ROUTES OF COMMERCE OVER WHICH IT HAS ASSUMED CONTROL, REMAIN FREE
OF OBSTRUCTION.  CF. IN RE DEBS, 158 U.S. 564, 586 (1895).  THE RIVERS
AND HARBORS ACT OF 1899, AN ASSERTION OF THE SOVEREIGN POWER OF THE
UNITED STATES, SANITARY DISTRICT V. UNITED STATES, 266 U.S. 405 (1925),
WAS OBVIOUSLY INTENDED TO PREVENT OBSTRUCTIONS IN THE NATION'S
WATERWAYS.  DESPITE SOME DIFFICULTIES WITH THE WORDING OF THE ACT, WE
HAVE CONSISTENTLY FOUND ITS COVERAGE TO BE BROAD.  SEE, E.G., SANITARY
DISTRICT V. UNITED STATES, SUPRA; UNITED STATES V. REPUBLIC STEEL
CORP., 362 U.S. 482 (1960).  (FN13)  AND WE HAVE FOUND THAT A PRINCIPAL
BENEFICIARY OF THE ACT, IF NOT THE PRINCIPAL BENEFICIARY, IS THE
GOVERNMENT ITSELF.  UNITED STATES V. REPUBLIC STEEL CORP., SUPRA, AT
492. 

OUR DECISIONS HAVE ESTABLISHED, TOO, THE GENERAL RULE THAT THE UNITED
STATES MAY SUE TO PROTECT ITS INTERESTS.  COTTON V. UNITED STATES, 11
HOW.  229 (1851); UNITED STATES V. SAN JACINTO TIN CO., 125 U.S. 273
(1888); SANITARY DISTRICT V. UNITED STATES, SUPRA.  THIS RULE IS NOT
NECESSARILY INAPPLICABLE WHEN THE PARTICULAR GOVERNMENTAL INTEREST
SOUGHT TO BE PROTECTED IS EXPRESSED IN A STATUTE CARRYING CRIMINAL
PENALTIES FOR ITS VIOLATION.  UNITED STATES V. REPUBLIC STEEL CORP.,
SUPRA.  OUR DECISIONS IN CASES INVOLVING CIVIL ACTIONS OF PRIVATE
PARTIES BASED ON THE VIOLATION OF A PENAL STATUTE SO INDICATE.  TEXAS &
PACIFIC R. CO. V. RIGSBY, 241 U.S. 33 (1916); J.I. CASE CO. V. BORAK,
377 U.S. 426 (1964).  (FN14)  IN THOSE CASES WE CONCLUDED THAT CRIMINAL
LIABILITY WAS INADEQUATE TO ENSURE THE FULL EFFECTIVENESS OF THE
STATUTE WHICH CONGRESS HAD INTENDED.  BECAUSE THE INTEREST OF THE
PLAINTIFFS IN THOSE CASES FELL WITHIN THE CLASS THAT THE STATUTE WAS
INTENDED TO PROTECT, AND BECAUSE THE HARM THAT HAD OCCURRED WAS OF THE
TYPE THAT THE STATUTE WAS INTENDED TO FORESTALL, WE HELD THAT CIVIL
ACTIONS WERE PROPER.  THAT CONCLUSION WAS IN ACCORDANCE WITH A GENERAL
RULE OF THE LAW OF TORTS.  SEE RESTATEMENT (SECOND) OF TORTS SEC 286. 
WE SEE NO REASON TO DISTINGUISH THE GOVERNMENT, AND TO DEPRIVE THE
UNITED STATES OF THE BENEFIT OF THAT RULE.    THE INADEQUACY OF THE
CRIMINAL PENALTIES EXPLICITLY PROVIDED BY SEC 16 OF THE RIVERS AND
HARBORS ACT IS BEYOND DISPUTE.  THAT SECTION CONTAINS ONLY MEAGER
MONETARY PENALTIES.  IN MANY CASES, AS HERE, THE COMBINATION OF THESE
FINES AND THE GOVERNMENT'S IN REM RIGHTS WOULD NOT SERVE TO REIMBURSE
THE UNITED STATES FOR REMOVAL EXPENSES.  IT IS TRUE THAT SEC 16 ALSO
PROVIDES FOR PRISON TERMS, BUT THIS PUNISHMENT IS HARDLY A SATISFACTORY
REMEDY FOR THE PECUNIARY INJURY WHICH THE NEGLIGENT SHIPOWNER MAY
INFLICT UPON THE SOVEREIGN.  CF.  UNITED STATES V. ACME PROCESS
EQUIPMENT CO., 385 U.S. 138 (1966). 

IT WAS A SIMILAR PROCESS OF REASONING THAT UNDERLAY OUR DECISION IN
UNITED STATES V. REPUBLIC STEEL CORP., 362 U.S. 482 (1960).  THAT CASE
CONCERNED THE DEPOSIT OF INDUSTRIAL SOLIDS WHICH, BE BELIEVED, CREATED
AN "OBSTRUCTION  ... TO THE NAVIGABLE CAPACITY" OF A WATERWAY OF THE
UNITED STATES, WITHIN THE MEANING OF SEC 10 OF THE ACT.  WE DECIDED
THAT THE GOVERNMENT MIGHT SEEK INJUNCTIVE RELIEF TO COMPEL REMOVAL OF
SUCH AN OBSTRUCTION, EVEN THOUGH SUCH RELIEF WAS NOWHERE SPECIFICALLY
AUTHORIZED IN THE ACT.  WE CONCLUDED THAT THE AUTHORIZATION OF
INJUNCTIVE RELIEF IN SEC 12, WHICH IS APPLICABLE ONLY TO A LIMITED
CATEGORY OF SEC. 10 OBSTRUCTIONS (STRUCTURES), SHOULD NOT BE READ TO
EXCLUDE INJUNCTIONS TO COMPEL REMOVAL OF OTHER TYPES OF SEC 10
OBSTRUCTIONS.  IN REFERRING TO THE ACT, WE NOTED THAT "CONGRESS HAS
LEGISLATED AND MADE ITS PURPOSE CLEAR; IT HAS PROVIDED ENOUGH FEDERAL
LAW IN SEC 10 FROM WHICH APPROPRIATE REMEDIES MAY BE FASHIONED EVEN
THOUGH THEY REST ON INFERENCES.  OTHERWISE WE IMPUTE TO CONGRESS A
FUTILITY INCONSISTENT WITH THE GREAT DESIGN OF THIS LEGISLATION."  362
U.S., AT 492. 

ALTHOUGH WE DO NOT APPROACH THE INSTANT CASES IN THE CONTEXT OF SEC
10, WE BELIEVE THE PRINCIPLES OF REPUBLIC STEEL APPLY, BY ANALOGY, TO
THE ISSUES NOW BEFORE US.  (FN15)  THE GOVERNMENT MAY, IN OUR VIEW,
SEEK AN ORDER THAT A NEGLIGENT PARTY IS RESPONSIBLE FOR RECTIFYING THE
WRONG DONE TO MARITIME COMMERCE BY A SEC 15 VIOLATION.  DENIAL OF SUCH
A REMEDY TO THE UNITED STATES WOULD PERMIT THE RESULT, EXTRAORDINARY IN
OUR JURISPRUDENCE, OF A WRONGDOER SHIFTING RESPONSIBILITY FOR THE
CONSEQUENCES OF HIS NEGLIGENCE ONTO HIS VICTIM.  IT MIGHT IN SOME CASES
PERMIT THE NEGLIGENT PARTY TO BENEFIT FROM COMMISSION OF A CRIMINAL
ACT.  WE DO NOT BELIEVE THAT CONGRESS INTENDED TO WITHHOLD FROM THE
GOVERNMENT A REMEDY THAT ENSURES THE FULL EFFECTIVENESS OF THE ACT.  WE
THINK WE CORRECTLY DIVINE THE CONGRESSIONAL INTENT IN INFERRING THE
AVAILABILITY OF THAT REMEDY FROM THE PROHIBITION OF SEC 15. 

IT IS BUT A SMALL STEP FROM DECLARATORY RELIEF TO A CIVIL ACTION FOR
THE GOVERNMENT'S EXPENSES INCURRED IN REMOVING A NEGLIGENTLY SUNK
VESSEL.  SEE UNITED STATES V. PERMA PAVING CO., 332 F.2D 754 (C.A.2D
CIR. 1964).  HAVING PROPERLY CHOSEN TO REMOVE SUCH A VESSEL, THE UNITED
STATES SHOULD NOT LOSE THE RIGHT TO PLACE RESPONSIBILITY FOR REMOVAL
UPON THOSE WHO NEGLIGENTLY SANK THE VESSEL.  SEE RESTATEMENT OF
RESTITUTION SEC 115; UNITED STATES V. MORAN TOWING & TRANSPORTATION
CO., 374 F.2D 656, 667 (C.A. 4TH CIR. 1967).  NO ISSUE REGARDING THE
PROPRIETY OF THE GOVERNMENT'S REMOVAL OF WYANDOTTE'S BARGE IS NOW
RAISED.  INDEED, THE FACTS SURROUNDING THAT SINKING CONSTITUTE A
CLASSIC CASE IN WHICH RAPID REMOVAL BY SOMEONE WAS ESSENTIAL. 
WYANDOTTE WAS UNWILLING TO EFFECTUATE REMOVAL ITSELF.  IT WOULD BE
SURPRISING IF CONGRESS INTENDED THAT, IN SUCH A SITUATION, THE
GOVERNMENT'S COMMENDABLE PERFORMANCE OF WYANDOTTE'S DUTY MUST BE AT
GOVERNMENT EXPENSE.  INDEED, IN ANY CASE IN WHICH THE ACT PROVIDES A
RIGHT OF REMOVAL IN THE UNITED STATES, THE EXERCISE OF THAT RIGHT
SHOULD NOT RELIEVE NEGLIGENT PARTIES OF THE RESPONSIBILITY FOR
REMOVAL.  OTHERWISE, THE GOVERNMENT WOULD BE SUBJECT TO A FINANCIAL
PENALTY FOR THE CORRECT PERFORMANCE OF ITS DUTY TO PREVENT IMPEDIMENTS
IN INLAND WATERWAYS.  (FN16)  SEE UNITED STATES V. PERMA PAVING CO.,
SUPRA, AT 758. 

WE NOTE, MOREOVER, THAT UNDER THE LIMITATION OF SHIPOWNERS' LIABILITY
ACT OF 1851, 9 STAT.  635, AS AMENDED, 46 U.S.C. SEC 181 ET SEQ., THE
LIABILITY OF A SHIPOWNER "FOR ANY LOSS, DAMAGE, OR INJURY BY COLLISION,
OR FOR ANY ACT, MATTER, OR THING, LOSS, DAMAGE, OR FORFEITURE" MAY BE
LIMITED TO "THE INTEREST OF SUCH OWNER IN SUCH VESSEL, AND HER FREIGHT
THEN PENDING"; BUT THIS LIMITATION IS AVAILABLE ONLY IF THE ACT OR
DAMAGE OCCURRED "WITHOUT THE PRIVITY OR KNOWLEDGE OF SUCH OWNER."  46
U.S.C. SEC 183.  "FOR HIS OWN FAULT, NEGLECT AND CONTRACTS THE OWNER
REMAINS LIABLE."  AMERICAN CAR & FOUNDRY CO. V. BRASSERT, 289 U.S. 261,
264 (1933).  THE READING THAT PETITIONERS WOULD PLACE ON THE RIVERS AND
HARBORS ACT OF 1899 WOULD CREATE AN ADDITIONAL RIGHT OF LIMITATION,
APPLICABLE IN THE SPECIAL CASE OF A SINKING EVEN THOUGH THE OWNER IS
HIMSELF NEGLIGENT.  YET CONGRESS GAVE NO INDICATION, IN PASSING THE
RIVERS AND HARBORS ACT, THAT IT INTENDED TO ALTER OR QUALIFY THE 1851
ACT.  (FN17)  IN THE CONGRESSIONAL FAILURE TO CONNECT THESE TWO
STATUTES, WE FIND AT LEAST SOME EVIDENCE THAT PETITIONERS' DISCOVERY OF
A LIMITATION OF LIABILITY IN THE RIVERS AND HARBORS ACT IS
UNWARRANTED.  (FN18)

                                       III. 

PETITIONERS CONTEND THAT, DESPITE OUR PRIOR DECISIONS AND THE SILENCE
OF THE RIVERS AND HARBORS ACT ON THIS POINT, THAT STATUTE AUTHORIZES
THEM SIMPLY TO ABANDON THEIR NEGLIGENTLY SUNK VESSELS, WITHOUT FURTHER
RESPONSIBILITY FOR THOSE VESSELS.  WE FIND IN THE ACT NO SUPPORT FOR
SUCH AN ABSOLUTE RIGHT OF ABANDONMENT.  THE PROVISION UPON WHICH
PETITIONERS PLACE MOST RELIANCE, THE FINAL CLAUSE OF SEC 15, CREATES A
"DUTY OF THE OWNER OF A SUNKEN CRAFT TO COMMENCE THE IMMEDIATE REMOVAL
OF THE SAME, AND PROSECUTE SUCH REMOVAL DILIGENTLY."  BECAUSE "FAILURE
TO DO SO SHALL BE CONSIDERED AS AN ABANDONMENT OF SUCH CRAFT, AND
SUBJECT THE SAME TO REMOVAL BY THE UNITED STATES AS PROVIDED FOR IN
HAS OTHER CONSEQUENCES.   BUT THE DUTY IMPOSED BY AND THE REMEDY
PROVIDED IN THE FINAL CLAUSE OF SEC 15 AND SECS 19 AND 20 ARE NOT
PRESCRIBED ONLY FOR OWNERS OF NEGLIGENTLY SUNK VESSELS.  THOSE
PROVISIONS APPLY "WHENEVER A VESSEL  ...   IS WRECKED AND SUNK IN A
NAVIGABLE CHANNEL, ACCIDENTALLY OR OTHERWISE  ...  ."  UNLIKE A
NEGLIGENT SINKING, A NON-NEGLIGENT SINKING IS NOT DECLARED BY THE ACT
TO BE UNLAWFUL.  IT SEEMS HIGHLY UNLIKELY THAT CONGRESS, HAVING
SPECIFIED THAT ONLY A NEGLIGENT OR INTENTIONAL SINKING IS A CRIME,
WOULD THEN EMPLOY SUCH INDIRECT LANGUAGE TO GRANT THE CULPABLE OWNER A
PERSONAL CIVIL IMMUNITY FROM THE CONSEQUENCES OF THAT CRIME. 

WE BELIEVE THE SECTIONS NOTED BY PETITIONERS ARE INTENDED TO PROTECT
THE UNITED STATES AGAINST LIABILITY FOR REMOVING A SUNKEN VESSEL IF IT
CHOOSES TO DO SO.  SEE ZUBIK V. UNITED STATES, 190 F.2D 278 (C.A. 3D
CIR. 1951); GULF COAST TRANSP.  CO. V. RUDDOCK-ORLEANS CYPRESS CO., 17
F.2D 858 (D.C.E.D. LA. 1927).  SECTION 19 SPEAKS EXPLICITLY OF THE
DISCRETION OF THE SECRETARY OF THE ARMY TO BREAK UP, REMOVE, SELL, OR
OTHERWISE DISPOSE OF A SUNKEN VESSEL THAT HAS OBSTRUCTED A WATERWAY
"WITHOUT LIABILITY FOR ANY DAMAGE TO THE OWNERS OF THE SAME."  THESE
DECLARATORY RELIEF OR TO RECOVER REMOVAL EXPENSES.  IT IS TRUE THAT A
PROVISO TO SEC 19 STATES "THAT ANY MONEY RECEIVED FROM THE SALE OF ANY
SUCH WRECK  ...  SHALL BE COVERED INTO THE TREASURY OF THE UNITED
STATES."  BUT THAT PROVISO DOES NOT INDICATE THAT THE UNITED STATES,
HAVING CHOSEN TO REMOVE A SUNKEN VESSEL, SHALL RECEIVE NO OTHER
MONIES.  AT MOST, THE PROVISO ESTABLISHES THE PROPOSITION THAT, IF THE
UNITED STATES CHOOSES TO SELL A WRECK, THE OWNER OF THE VESSEL HAS NO
RIGHT TO ANY MONIES RECEIVED.  (FN19)  SECTION 20, THE EMERGENCY
ARGUMENT.  (FN20) 

PETITIONERS ALSO CLAIM THAT A SUBSTANTIAL BODY OF NONSTATUTORY LAW
ESTABLISHES THE RULE THAT A SHIPOWNER WHO HAS NEGLIGENTLY SUNK A VESSEL
MAY ABONDON IT AND BE INSULATED FROM ALL BUT IN REM LIABILITY.  (FN21)
THEY ARGUE THAT CONGRESS MUST HAVE INTENDED TO CODIFY THIS RULE IN THE
RIVERS AND HARBORS ACT.  WE DO NOT ACCEPT PETITONERS' CLAIM.  ALTHOUGH
SEVERAL MODERN COURTS HAVE ASSUMED THE EXISTENCE OF SUCH A COMMON-LAW
RULE, SEE, E.G., UNITED STATES V. MORAN TOWING & TRANSPORTATION CO.,
374 F.2D 656, 667 (C.A. 4TH CIR. 1967); UNITED STATES V. BETHLEHEM
STEEL CORP., 319 F.2D 512, 518-519 (C.A. 9TH CIR. 1963), THE RULE
EVAPORATES UPON CLOSE ANALYSIS.  (FN22)  WE DO NOT BELIEVE CONGRESS
INTENDED THE RIVERS AND HARBORS ACT TO EMBODY THIS ILLUSORY
NONSTATUTORY LAW. 

                          IV. 

THESE CASES WERE DECIDED IN THE DISTRICT COURT ON PETITIONERS'
MOTIONS FOR SUMMARY JUDGMENT.  THE COURT OF APPEALS REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS.  AS WE HAVE NOTED, THE GOVERNMENT'S
LIBELS WERE BASED ON A THEORY OF NEGLIGENCE, AND THE AWARD OF THE COURT
OF APPEALS CALLED FOR A DETERMINATION WHETHER THE ACTS OF THE VARIOUS
PETITIONERS CONSTITUTED NEGLIGENCE.  WE AGREE WITH THAT DISPOSITION. 
AFFIRMED. 

FN1  THERE IS SOME DISPUTE AS TO WHETHER THE UNITED STATES EVER
AGREED TO REMOVE THE OWNER'S BARGE.  THE COURT OF APPEALS WAS COGNIZANT
OF THIS ISSUE BUT CONCLUDED THAT ITS RESOLUTION OF THE CASES MADE A
DECISION ON THIS POINT UNNECESSARY.  WE AGREE.  WE THEREFORE DO NOT
PASS ON THE QUESTIONS WHETHER THE UNITED STATES ASSERTED THE RIGHT TO
REMOVE WYANDOTTE'S BARGE OR WHETHER THE GOVERNMENT, ONCE IT HAS
ASSERTED SUCH A RIGHT, IS PRECLUDED FROM SEEKING DECLARATORY RELIEF. 

FN2 UPON MOTION OF THE UNITED STATES, THE DISTRICT COURT ORDERED THAT
THE CHLORINE AND ITS CONTAINERS BE SOLD AND THAT THE PROCEEDS BE PAID
INTO THE COURT PENDING FINAL DISPOSITION OF THE LITIGATION.  THE
PROCEEDS OF THIS SALE WERE $85,000.  PETITIONERS DO NOT DISPUTE THE
RIGHT OF THE UNITED STATES TO THIS SUM.  SEE N. 12, INFRA. 

FN3  ON PETITION FOR REHEARING, THE COURT OF APPEALS AFFIRMED THE
SUMMARY JUDGMENT ENTERED IN FAVOR OF UNION CARBIDE CO., THE OWNER OF
THE CHLORINE, ON THE GROUND THAT THERE WAS NO ALLEGATION OR PROOF OF
NEGLIGENCE ON ITS PART.  THAT DECISION IS NOT NOW BEFORE US. 

FN4  OF THE EXPENSES INCURRED BY THE UNITED STATES, APPROXIMATELY
$1,565,000 WAS FOR ENGINEERING COSTS; THE REMAINDER, SOME $1,516,000,
WAS FOR PUBLIC HEALTH AND SAFETY MEASURES, INCLUDING ALLEGEDLY
NECESSARY PRECAUTIONS AGAINST A POSSIBLE RUPTURE OF THE CHLORINE
CONTAINERS DURING SALVAGE OPERATIONS.  WE DO NOT, OF COURSE, PASS ON
THE QUESTIONS WHETHER ALL OF THESE EXPENSES WERE NECESSARY TO REMOVE
THE BARGE OR WHETHER THE GOVERNMENT MAY RECOVER ALL OF THEM. 

FN5  THUS, WE INTIMATE NO VIEW AS TO WHETHER A NEGLIGENTLY SUNK
VESSEL MAY BE AN "OBSTRUCTION ...  TO THE NAVIGABLE CAPACITY OF ANY OF
THE WATERS OF THE UNITED STATES," PROHIBITED BY SEC 10 OF THE RIVERS
AND HARBORS ACT OF 1899, 33 U.S.C. SEC 403.  THIS WAS THE GROUND UPON
WHICH THE COURT OF APPEALS RESTED ITS DECISION.  WE DO NOT ASSESS ANY
OF THE COURT OF APPEALS' CONCLUSIONS, NOR DO WE DECIDE WHETHER
PETITIONERS MAY BE SUBJECT TO THE CRIMINAL AND OTHER REMEDIES OF SEC 12
OF THE ACT, 33 U.S.C. SEC 406, WHICH APPLIES TO VIOLATIONS OF SEC 10. 

NOR, FINALLY, DO WE DECIDE WHETHER NONSTATUTORY PUBLIC NUISANCE LAW
MAY FORM A BASIS FOR THE RELIEF HERE SOUGHT BY THE GOVERNMENT.  SEE,
E.G., MAYOR OF GEORGETOWN V. ALEXANDRIA CANAL CO., 12 PET. 91, 97
(1838); UNITED STATES V. HALL, 63 F. 472, 474 (C.A. 1ST CIR. 1894); THE
ELLA, (1915) P. 111 (1914); COMMENT, SUBSTANTIVE AND REMEDIAL PROBLEMS
IN PREVENTING INTERFERENCES WITH NAVIGATION: THE REPUBLIC STEEL CASE,
59 COL. L. REV. 1065, 1067 (1959); WISDOM, OBSTRUCTIONS IN RIVERS, 119
JUST.  P. 846 (1955).  WE THEREFORE DO NOT PASS EITHER ON THE QUESTION
WHETHER SUCH A NONSTATUTORY RIGHT OF THE SOVEREIGN HAS EVER EXISTED IN
THE UNITED STATES, CF. WILLAMETTE IRON BRIDGE CO. V. HATCH, 125 U.S. 1,
8 (1888); UNITED STATES V. REPUBLIC STEEL CORP., 362 U.S. 482, 486
(1960); OR ON WHETHER SUCH A RIGHT, IF IT EVER DID EXIST, SURVIVED THE
SERIES OF ENACTMENTS BEGINNING WITH THE RIVERS AND HARBORS ACT OF 1890,
26 STAT. 426, 454, IN WHICH CONGRESS ASSERTED THE GENERAL INTEREST OF
THE UNITED STATES IN THE REMOVAL OF SUNKEN VESSELS OBSTRUCTING
NAVIGABLE WATERS.  CF. IN RE DEBS, 158 U.S. 564 (1895). 

FN6  IT BEARS EMPHASIS THAT WE ARE HERE CONCERNED WITH THE CARELESS
OR NEGLIGENT SINKING OF A VESSEL, WHICH IS SPECIFICALLY DECLARED NOT TO
BE LAWFUL BY THE FIRST ABOVE-QUOTED CLAUSE OF SEC 15.  NEGLIGENCE IS
THE SOLE THEORY OF RECOVERY IN THE GOVERNMENT'S LIBELS.  QUESTIONS
INVOLVING A NON-NEGLIGENT SINKING, WHICH IS NOT FORBIDDEN BY SEC 15,
ARE NOT NOW BEFORE US AND WE DO NOT MEAN TO INDICATE WHAT RELIEF, IF
ANY, MAY BE AVAILABLE TO THE GOVERNMENT IN THAT SITUATION. 

FN7  THE DETERMINATION OF THE APPLICABILITY OF SEC. 20 IS LEFT BY
THAT SECTION TO "THE OPINION OF THE SECRETARY OF THE ARMY, OR ANY AGENT
OF THE UNITED STATES TO WHOM THE SECRETARY MAY DELEGATE PROPER
AUTHORITY."  ONCE THE DETERMINATION IS MADE, THE SECRETARY OR HIS AGENT
MAY "TAKE IMMEDIATE POSSESSION" OF A SUNKEN VESSEL "SO FAR AS TO REMOVE
OR TO DESTROY IT AND TO CLEAR IMMEDIATELY" THE OBSTRUCTED WATERWAY. 
SEE N. 20, INFRA.    FN8  VIOLATION IS A MISDEMEANOR, PUNISHABLE BY "A
FINE NOT EXCEEDING $2,500 NOR LESS THAN $500, OR BY IMPRISONMENT (IN
THE CASE OF A NATURAL PERSON) FOR NOT LESS THAN THIRTY DAYS NOR MORE
THAN ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT, IN THE DISCRETION
OF THE COURT  ...  ." 

FN9  SEE N. 5, SUPRA. 

FN10  AS NOTED, THE UNITED STATES SOUGHT DECLARATORY RELIEF IN THE
CARGILL ACTION. 

FN11  THE GOVERNMENT NOTES, IN REGARD TO PETITIONERS' CONTENTION THAT
THESE REMEDIES ARE EXCLUSIVE, THAT THEY APPLY ONLY TO THE OWNER OF A
VESSEL.  THE GOVERNMENT ARGUES THAT THE POSITION OF THOSE ALLEGEDLY
NEGLIGENT PETITIONERS WHO ARE NOT OWNERS IS SUBSTANTIALLY WEAKER.  BUT
SEE UNITED STATES V. BETHLEHEM STEEL CORP., 319 F.2D 512, 521 (C.A. 9TH
CIR. 1963).  WE NOTE THAT THE PROHIBITION OF SEC 15 AGAINST THE
NEGLIGENT SINKING OF A VESSEL AND THE CRIMINAL PENALTIES OF SEC 16 ARE
NOT LIMITED TO OWNERS.  OUR DISPOSITION OF THESE CASES MAKES IT
UNNECESSARY FOR US TO PASS ON THE GOVERNMENT'S CONTENTION. 

FN12  PETITIONERS CONCEDE THE IN REM RIGHT OF THE UNITED STATES
AGAINST A NEGLIGENTLY SUNK VESSEL AND ITS CARGO, SEE BRIEF FOR
PETITIONERS, P. 12, DESPITE THE FACT THAT THE RIGHT OF THE GOVERNMENT
TO PROCEED AGAINST CARGO IS BY NO MEANS CLEARLY GRANTED BY THE
STATUTE.  SEE SEC 19, 33 U.S.C. SEC 414; UNITED STATES V. CARGO SALVAGE
CORP., 228 F. SUPP. 145 (D.C.S.D.N.Y. 1964).  SEE ALSO SEC. 16, 33
U.S.C. SEC. 412. 

FN13  IN THIS CONCLUSION WE HAVE BEEN SUPPORTED BY SIMILARLY BROAD
READINGS OF SIMILAR STATUTES PREDATING THIS ONE.  SEE, E.G., UNITED
STATES V. RIO GRANDE IRRIGATION CO., 174 U.S. 690 (1899). 

FN14  SEE NORTH BLOOMFIELD GRAVEL MIN. CO. V. UNITED STATES, 88 F.
664, 678-679 (C.A.  9TH CIR. 1898).  SEE ALSO DANN V. STUDEBAKER
PACKARD CORP., 288 F.2D 201, 208-209 (C.A.  6TH CIR. 1961); REITMEISTER
V. REITMEISTER, 162 F.2D 691, 694 (C.A.2D CIR. 1947). 

FN15  PETITIONERS WOULD DISTINGUISH REPUBLIC STEEL ON THE GROUND
THAT, IN THAT CASE, IF  ... INJUNCTIVE RELIEF  ...  WAS NOT AVAILABLE,
THE FREE NAVIGABILITY OF THE CHANNEL WOULD BE SERIOUSLY IMPAIRED AND
REPUBLIC STEEL CORP., BY REPEATEDLY PAYING THE FINE IMPOSED BY SEC 12,
WOULD, IN EFFECT, BE OPERATING UNDER A LICENSE."  SEE BRIEF FOR
PETITIONERS, P. 29; UNITED STATES V. BETHLEHEM STEEL CORP., 319 F.2D
512, 518 (C.A. 9TH CIR. 1963).  THIS GROUND OF DISTINCTION WILL NOT DO,
FOR AT LEAST THREE REASONS.  FIRST, THE CRIMINAL PROVISIONS OF SEC 12
INCLUDE NOT ONLY A FINE BUT A PRISON TERM.  SEE UNITED STATES V.
BETHLEHEM STEEL CORP., 319 F.2D 512, 523 (C.A. 9TH CIR.
1963)(DISSENTING OPINION).  SECOND, IF FINES WERE IN PRACTICE THE ONLY
DETERRENT IN SEC 12 AND SEC 16, IT MIGHT WELL BE WORTHWHILE TO RISK
FINES RATHER THAN TAKE NECESSARY SAFETY MEASURES FOR TOWS.  THIRD, THE
PROPOSED GROUND OF DISTINCTION CONCENTRATES UPON THE INJUNCTION IN
REPUBLIC STEEL AGAINST FUTURE VIOLATIONS OF THE ACT; IT DOES NOT
EXPLAIN THE MANDATORY INJUNCTION IN THAT CASE TO COMPEL REMOVAL OF THE
OBSTRUCTION THAT HAD ALREADY BEEN CREATED AT THE TIME OF THE
GOVERNMENT'S SUIT. 

INDEED, THE ARGUMENT FOR EXCLUSIVITY WAS STRONGER IN REPUBLIC STEEL
THAN IT IS HERE.  IN THAT CASE, WE DECIDED THAT INJUNCTIVE RELIEF WAS A
PROPER ENFORCEMENT MEASURE AGAINST A VIOLATION OF THE VERY SECTION TO
WHICH SEC 12 (BUT NOT THE STATUTORY PROVISION OF INJUNCTIVE PROCESS)
APPLIES. 

FN16  WYANDOTTE, NOTING THAT GOVERNMENT FUNDS SPENT IN REMOVAL
OPERATIONS WERE PROVIDED UNDER THE DISASTER RELIEF ACT, 42 U.S.C. SECS
1855-1855G, ARGUES THAT NOTHING IN THAT ACT AUTHORIZES THE UNITED
STATES TO RECOVER DISASTER RELIEF EXPENDITURES FROM PRIVATE PARTIES. 
WE AGREE, BUT THE ARGUMENT MISSES THE POINT.  WE BELIEVE THE UNITED
STATES MAY RECOVER ITS EXPENSES UNDER THE RIVERS AND HARBORS ACT OF
1899.  WE SEE NOTHING IN THE DISASTER RELIEF ACT TO THE CONTRARY. 

FN17  WE DO NOT, OF COURSE, PASS ON THE APPLICABILITY OF THE
LIMITATION ACT, BEFORE OR AFTER PASSAGE OF THE RIVERS AND HARBORS ACT,
TO THE FACTS OF THE CASE NOW BEFORE US.  WE ONLY NOTE THAT THE
PRINCIPLE FOR WHICH PETITIONERS ARE CONTENDING IS VERY MUCH LIKE THE
PRINCIPLE OF LIMITATION OF LIABILITY, KNOWN TO THE STATUTORY MARITIME
LAW OF THE UNITED STATES ALMOST 50 YEARS PRIOR TO PASSAGE OF THE RIVERS
AND HARBORS ACT. 

FN18  PETITIONERS' THEORY IS, MOREOVER, IN CONFLICT WITH THE
ADMINISTRATIVE INTERPRETATION OF THE STATUTE.  A REGULATION PROMULGATED
BY THE DEPARTMENT OF THE ARMY PROVIDES THAT "A PERSON WHO  ...
NEGLIGENTLY PERMITS A VESSEL TO SINK IN NAVIGABLE WATERS OF THE UNITED
STATES  ... MAY  ...  BE COMPELLED TO REMOVE THE WRECK AS A PUBLIC
NUISANCE OR TO PAY FOR ITS REMOVAL."  33 CFR SEC 209.410.  THE ORIGINS
OF THIS REGULATION GO BACK TO 1901.  LETTER FROM WILLIAM CARY SANGER,
ACTING SECRETARY OF WAR, TO WILLIAM L. HUGHES, JULY 31, 1901.  SEE
UNITED STATES V. REPUBLIC STEEL CORP., 362 U.S. 482, 490, N. 5 (1960). 

FN19  THIS RULE IS NOT UNFAIR.  SEE 41 TULANE L. REV. 459, 464, N. 29
(1967).  THE SHIPOWNER SHOULD KNOW THE VALUE OF HIS VESSEL AND CARGO. 
IF HE BELIEVES THAT VALUE IS GREATER THAN THE COST OF REMOVAL, HE MAY,
WITHIN 30 DAYS AFTER THE OBSTRUCTION IS CREATED, RAISE THE VESSEL
HIMSELF.  SEE SEC 19, 33 U.S.C. SEC 414. 

FN20  THUS, SEC 20 CONCLUDES WITH THE PROVISO "THAT THE EXPENSE OF
REMOVING ANY SUCH OBSTRUCTION AS AFORESAID SHALL BE A CHARGE AGAINST
SUCH CRAFT AND CARGO; AND IF THE OWNERS THEREOF FAIL OR REFUSE TO
REIMBURSE THE UNITED STATES FOR SUCH EXPENSE WITHIN THIRTY DAYS AFTER
NOTIFICATION, THEN THE OFFICER OR AGENT AFORESAID MAY SELL THE CRAFT OR
CARGO, OR ANY PART THEREOF THAT MAY NOT HAVE BEEN DESTROYED IN REMOVAL,
AND THE PROCEEDS OF SUCH SALE SHALL BE COVERED INTO THE TREASURY OF THE
UNITED STATES."  PETITIONERS RELY HEAVILY ON THE PHRASE "SHALL BE A
CHARGE AGAINST SUCH CRAFT AND CARGO."  BUT THAT PHRASE DOES NOT LEAD TO
THE CONCLUSION THAT THE GOVERNMENT POSSESSES NO OTHER RIGHT TO
RECOVER.  THE PHRASE MERELY DESCRIBES THE LIEN INTEREST OF THE UNITED
STATES.  SEE UNITED STATES V. MORAN TOWING & TRANSPORTATION CO., 374
F.2D 656, 671 (C.A. 4TH CIR. 1967)(DISSENTING OPINION).  SUCH A
PROVISION IS NECESSARY IN A SEC 20 CASE BECAUSE, UNDER THE TERMS OF
THAT SECTION, THE OWNER IS NOT GIVEN A STATUTORY PERIOD IN WHICH TO
DECIDE WHETHER THE VALUE OF HIS VESSEL AND CARGO EXCEEDS THE COST OF
REMOVAL AND TO EFFECTUATE REMOVAL HIMSELF. 

FN21  PETITIONERS DO NOT APPEAR TO CLAIM THAT THE LEGISLATIVE HISTORY
OF THE RIVERS AND HARBORS ACT OF 1899 CLEARLY INDICATES THE INTENT OF
CONGRESS TO CREATE OR CODIFY THIS RULE.  TO THE EXTENT THAT ANY INTENT
APPEARS IN THE LEGISLATIVE HISTORY OF THE 1899 ACT, IT IS THE INTENT
NOT TO ALTER PRE-EXISTING STATUTORY LAW.  THUS, THE HOUSE CONFEREES
SAID OF THE STATUTE THAT IT WAS A "CODIFICATION OF EXISTING LAWS
PERTAINING TO RIVERS AND HARBORS, THOUGH CONTAINING NO ESSENTIAL
CHANGES IN THE EXISTING LAW."  32 CONG., REC. 2923 (1899); SEE UNITED
STATES V. REPUBLIC STEEL CORP., 362 U.S., AT 486.  THE LEGISLATIVE
HISTORY OF PRIOR STATUTES IS SCANT.  AND THE PRIOR ACTS THEMSELVES LEND
NO SUPPORT TO PETITIONERS.  SEE RIVERS AND HARBORS ACT OF 1880, 21
STAT. 180; RIVERS AND HARBORS ACT OF 1882, 22 STAT.  191; RIVERS AND
HARBORS ACT OF 1890, 26 STAT. 426. 

FN22  THE AMERICAN DECISIONS SPEAKING OF A NONSTATUTORY RIGHT OF
ABANDONMENT ALL TRACE BACK TO A DICTUM IN WINPENNY & CHEDESTER V.
PHILADELPHIA, 65 PA. 135 (1870).  SEE, E.G., THE MANHATTAN, 10 F. SUPP.
45 (D.C.E.D. PA. 1935); GULF COAST TRANSP.  CO. V. RUDDOCK-ORLEANS
CYPRESS CO., 17 F.2D 858 (D.C.E.D. LA. 1927).  IN WINPENNY THE
PENNSYLVANIA SUPREME COURT STATED IN DICTUM THAT THE "OWNER OF A SUNKEN
VESSEL IS ABSOLUTELY NOT LIABLE TO RAISE OR REMOVE THE HULK."  65 PA.,
AT 138.  FOR THIS PROPOSITION, THE PENNSYLVANIA COURT CITED THREE
TREATISES AND FIVE ENGLISH CASES.  THE CASES ARE NOT GOOD AUTHORITY. 
THE ONLY ONE CLOSE TO THE POINT, KING V. WATTS, 2 ESP.  675, 170 ENG.
REP. 493 (1798), HELD THAT AN INDICTMENT FOR HAVING SUNK A VESSEL IN
THE THAMES COULD NOT BE MAINTAINED BECAUSE THE OWNER HAD NOT BEEN
NEGLIGENT AND "IT WOULD BE ADDING TO THE CALAMITY TO SUBJECT THE PARTY
TO AN INDICTMENT  ...  AGAINST WHICH HE COULD NOT GUARD, OR WHICH HE
COULD NOT PREVENT."  OF THE TWO TREATISES CITED, ONE, SHEARMAN &
REDFIELD ON NEGLIGENCE (3D ED. 1869), STATES AT SEC 583 THAT "IT IS
WELL SETTLED THAT THE OWNER OF A VESSEL WHICH HAS BEEN SUNK IN
NAVIGABLE WATERS, AND ABONDONED BY HIM, IS UNDER NO OBLIGATION TO
REMOVE THE VESSEL  ...  ."  BUT THE ONLY CASE CITED FOR THIS "WELL
SETTLED" RULE IS KING V. WATTS. 

MOREOVER, IT SEEMS CLEAR THAT THE WINPENNY COURT WAS NOT SPEAKING OF
THE "RULE" THAT PETITIONERS PROPOSE.  THAT COURT, AFTER THE ABOVE
QUOTED PASSAGE, WENT ON AS FOLLOWS: 

"THERE SEEM TO BE GOOD REASONS FOR THIS RULE.  WHEN A VESSEL IS LOST
BY THE ACT OF GOD, OR BY ACCIDENT, THE OWNER SUFFERS OFTENTIMES GREAT
DAMAGE, AND WHEN SHE BECOMES A TOTAL LOSS, IT SEEMS TO BE A GREAT
HARDSHIP TO ADD TO HIS MISFORTUNE THE DUTY OF REMOVING THE WRECK.  IT
WOULD DISCOURAGE COMMERCE TO HOLD HIM TO SO SEVERE A DUTY; FOR WHO
WOULD ENGAGE IN TRADE, IF, WHEN HE HAS LOST HIS VESSEL, HE MIGHT BE
FORCED TO INCUR AN EXPENSE OF MORE THAN HER ORIGINAL COST IN REMOVING
THE WRECK FROM SOME DIFFICULT POSITION?  IF COMPELLED BY THE ACCIDENT
TO ABANDON HIS PROPERTY, THE DUTY OF REMOVAL SHOULD FALL ON THE PUBLIC,
WHO ARE INTERESTED IN THE NAVIGATION, THAN ON HIM." 

CASES CITED FOR PETITIONERS THAT DO NOT RELY ON WINPENNY EITHER DO
NOT SUPPORT PETITIONERS' CLAIM OF A NONSTATUTORY RULE, SEE, E.G., IN RE
HIGHLAND NAV. CORP., 24 F.2D 582 (D.C.S.D.N.Y 1927), AFFIRMED, 29 F.2D
37 (C.A.2D CIR. 1928); ZUBIK V. UNITED STATES, 190 F.2D 278 (C.A. 3D
CIR. 1951); UNITED STATES V. BRIDGEPORT TOWING LINE, INC., 15 F.2D 240
(D.C.D. CONN. 1926), OR SUPPORT IT ONLY WITH UNSUPPORTED DICTA OF THEIR
OWN, SEE, E.G., BARRACLOUGH V. BROWN, (1897) A.C. 615 (CONSTRUING THE
AIRE AND CALDER NAVIGATION ACT, 1889 (52 & 53 VICT., C. 32)). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I CONCUR IN THE COURT'S HOLDING THAT UNDER SEC 15 OF THE RIVERS AND
HARBORS ACT OF 1899, 33 U.S.C. SEC 409, THE UNITED STATES MAY RECOVER
THE COSTS OF REMOVING A VESSEL NEGLIGENTLY SUNK IN NAVIGABLE WATERS
FROM THOSE RESPONSIBLE FOR THE SINKING.  I FURTHER AGREE WITH THE
HOLDING THAT THE UNITED STATES IS ENTITLED TO THE DECLARATORY RELIEF
SOUGHT IN THE CARGILL ACTION.  IN AFFORDING THIS LATTER RELIEF IT IS MY
UNDERSTANDING THAT THE COURT DOES NOT PURPORT TO DECIDE WHETHER THE
UNITED STATES MAY ALSO OBTAIN AN INJUNCTION COMPELLING REMOVAL, BUT HAS
LEFT THAT QUESTION TO BE ANSWERED IN LIGHT OF A FULL DEVELOPMENT OF THE
FACTS, AND IN ACCORDANCE WITH NORMAL STANDARDS OF EQUITY. 

IN REACHING THESE CONCLUSIONS, I HAVE NOT BEEN UNMINDFUL OF THE VIEW
STATED BY ME IN DICTUM IN MY DISSENTING OPINION IN UNITED STATES V.
REPUBLIC STEEL CORP., 362 U.S. 482, 493, TO THE EFFECT THAT THE COURTS
ARE PRECLUDED FROM SUPPLYING RELIEF NOT EXPRESSLY FOUND IN THE RIVERS
AND HARBORS ACT.  INSOFAR AS THAT DICTUM MIGHT BE TAKEN TO ENCOMPASS
THE PRESENT CASE, WHERE, CONTRARY TO MY VIEW IN REPUBLIC STEEL, I DO
BELIEVE THAT THE RELIEF AFFORDED BY THIS COURT IS FAIRLY TO BE IMPLIED
FROM THE STATUTE, CANDOR WOULD COMPEL ME TO SAY THAT THE DICTUM WAS ILL
FOUNDED. 

ON THESE PREMISES I JOIN THE OPINION OF THE COURT. 
..END :













LUCAS V. RHODES 389 U.S. 212 


NO. 568.  DECIDED DECEMBER 4, 1967.  - REVERSED AND REMANDED. 


LUCAS ET AL. V. RHODES, GOVERNOR OF OHIO, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO.  WESBERRY V.
SANDERS, 376 U.S. 1 (1964). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

BECAUSE OF THE UNINFORMATIVE NATURE OF THE COURT'S REVERSAL, SOME
EXPOSITION OF THE ISSUE IN THIS CASE IS NECESSARY AS A PREDICATE FOR MY
VIEW THAT THE JUDGMENT OF THE DISTRICT COURT SHOULD BE AFFIRMED.  MY
POINT OF DEPARTURE IS, OF COURSE, WESBERRY V. SANDERS, 376 U.S. 1, A
DECISION WITH WHICH I AM IN CONTINUING DISAGREEMENT, SEE 376 U.S., AT
20 ET SEQ., 50-51, BUT BY WHICH I CONSIDER MYSELF BOUND. 

THE APPELLANTS, OHIO VOTERS, CHALLENGE THE CONSTITUTIONALITY OF
OHIO'S 1964 CONGRESSIONAL REDISTRICTING STATUTE.  THEY ASSERT THAT THE
REDISTRICTING PLAN DOES NOT SATISFY THE STANDARD OF POPULATION EQUALITY
LAID DOWN IN WESBERRY V. SANDERS, SUPRA, BECAUSE SOME OF THE RESULTING
DISTRICTS VARY AS MUCH AS 13% ABOVE AND 18% BELOW THE POPULATION
AVERAGE, ACCORDING TO THE 1960 CENSUS.  IN THE DISTRICT COURT, THE
APPELLEES, STATE OFFICIALS, DEFENDED ON THE GROUND THAT THE OHIO
LEGISLATURE HAD PROPERLY TAKEN INTO ACCOUNT UNOFFICIAL, POST-1960
POPULATION FIGURES WHICH WERE AVAILABLE FOR SOME COUNTIES, AND WHICH
SEEMED TO BRING THE 1964 REDISTRICTING INTO LINE WITH WESBERRY. 

THE MAJORITY BELOW APPARENTLY HELD THAT THESE UNOFFICIAL POPULATION
STATISTICS WERE INSUFFICIENT TO JUSTIFY THE DISPARITY AMONG DISTRICTS
BECAUSE THEY WERE TOO UNRELIABLE AND NOT AVAILABLE FOR ALL AREAS. 
HOWEVER, THE MAJORITY WENT ON TO UPHOLD THE DISTRICTING PLAN BECAUSE: 

"ALTHOUGH THE VARIED RESOURCES OF POPULATION INFORMATION USED BY THE
OHIO LEGISLATURE MAY LACK UNIFORMITY OF THE FEDERAL CENSUS AND THE
PERCENTAGE DEVIATION BETWEEN SELECTED OHIO DISTRICTS MAY EXCEED THAT
GENERALLY FOUND ACCEPTABLE IN OTHER STATES, WE ARE UNABLE TO FIND THAT
RESORT TO THE 1960 FEDERAL CENSUS IN 1967 WILL ACHIEVE A POPULATION
DISPARITY OF ANY LESSER DEGREE." 

GIVEN THESE CIRCUMSTANCES, I BELIEVE THAT THE OHIO PLAN HAS NOT BEEN
SHOWN TO BE UNCONSTITUTIONAL, EVEN PRIMA FACIE.  THIS COURT HELD IN
WESBERRY, SUPRA, AT 7-8, THAT "AS NEARLY AS IT IS PRACTICABLE ONE MAN'S
VOTE IN A CONGRESSIONAL ELECTION MUST BE WORTH AS MUCH AS ANOTHER'S." 
HOWEVER, MATHEMATICAL EXACTNESS WAS NOT REQUIRED OF A REDISTRICTING
PLAN, 376 U.S., AT 18, AND WHAT IS MARGINALLY ALLOWABLE IN ONE STATE
MAY BE UNACCEPTABLE IN ANOTHER, CF. REYNOLDS V. SIMS, 377 U.S. 533,
578.  IT SEEMS TO ME THAT BY FAILING TO HEED THE DISTRICT COURT'S
EVIDENT RECOGNITION THAT SUBSTANTIAL SHIFTS IN POPULATION AMONG OHIO'S
CONGRESSIONAL DISTRICTS HAD TAKEN PLACE SINCE THE FEDERAL CENSUS OF
1960, THIS COURT HAS NOW GIVEN TO WESBERRY A PROCRUSTEAN TENOR WHICH
THE OPINION IN THAT CASE DOES NOT EVINCE. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 
..END :










DOLOMITE PRODUCTS V. KIPERS 389 U.S. 214 


NO. 619.  DECIDED DECEMBER 4, 1967.  - 19 N.Y.2D 739, 225 N.E.2D 894,
APPEAL DISMISSED AND CERTIORARI DENIED. 


DOLOMITE PRODUCTS CO., INC. V. KIPERS ET AL. CONSTITUTING TOWN BOARD OF
TOWN OF GATES, NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















BRESOLIN V. RHAY 389 U.S. 214 


NO. 4, MISC.  DECIDED DECEMBER 4, 1967.  - CERTIORARI GRANTED; JUDGMENT
REVERSED. 


BRESOLIN V. RHAY, PENITENTIARY SUPERINTENDENT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED.  MEMPA
V. RHAY, ANTE, P. 128. 
..END :















WALLACE V. UNITED STATES 389 U.S. 215 


NO. 489.  DECIDED DECEMBER 4, 1967.* - 267 F. SUPP. 458, AFFIRMED. 

*TOGETHER WITH NO. 671, BIBB COUNTY BOARD OF EDUCATION ET AL. V.
UNITED STATES ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


WALLACE, GOVERNOR OF ALABAMA, ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF ALABAMA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :















GREYHOUND V. UNITED STATES 389 U.S. 216 


NO. 555.  DECIDED DECEMBER 4, 1967.  - 268 F. SUPP. 746, AFFIRMED. 


GREYHOUND LINES, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :















WILL V. UNITED STATES 389 U.S. 90 


NO. 36.  ARGUED OCTOBER 17-18, 1967.  - DECIDED NOVEMBER 13, 1967.  -
VACATED AND REMANDED. 


PETITIONER, A FEDERAL DISTRICT JUDGE, ORDERED THE GOVERNMENT TO SUPPLY
CERTAIN INFORMATION REQUESTED BY THE DEFENDANT IN A BILL OF PARTICULARS
IN A CRIMINAL CASE.  THE PROSECUTOR REFUSED TO COMPLY ON THE GROUND
THAT THE REQUEST CONSTITUTED A DEMAND FOR A LIST OF PROSECUTION
WITNESSES, THE PRODUCTION OF WHICH PETITIONER LACKED POWER TO COMPEL
UNDER FED.  RULE CRIM. PROC. 7(F).  PETITIONER THEREUPON INDICATED HIS
INTENTION TO DISMISS THE INDICTMENTS AGAINST THE DEFENDANT.  THE
GOVERNMENT PETITIONED THE COURT OF APPEALS FOR A WRIT OF MANDAMUS TO
COMPEL PETITIONER TO STRIKE THE REQUEST FOR INFORMATION FROM HIS BILL
OF PARTICULARS ORDER.  ON THE BASIS OF BRIEFS FILED, THAT COURT
INITIALLY DENIED THE GOVERNMENT'S PETITION BUT, WITHOUT NEW BRIEFS OR
ORAL ARGUMENT, AND WITHOUT OPINION, REVERSED ITSELF AND ISSUED A WRIT
OF MANDAMUS DIRECTING PETITIONER TO VACATE HIS ORDER.  THE GOVERNMENT
CONTENDS THAT ABSENT COMPELLING CONSIDERATIONS A TRIAL COURT MAY NOT
ORDER THE GOVERNMENT TO PRODUCE A LIST OF ITS WITNESSES BEFORE TRIAL,
AND THEREBY OFFEND THE INFORMANT'S PRIVILEGE.  HELD:  THE RECORD IN
THIS CASE DISCLOSES NO PROPER JUSTIFICATION FOR THE COURT OF APPEALS TO
HAVE INVOKED THE EXTRAORDINARY WRIT OF MANDAMUS TO REVIEW THE TRIAL
COURT'S INTERLOCUTORY ORDER.  PP. 95-107. 

(A)  THE WRIT OF MANDAMUS HAS TRADITIONALLY BEEN USED IN THE FEDERAL
COURTS ONLY "TO CONFINE AN INFERIOR COURT TO A LAWFUL EXERCISE OF ITS
PRESCRIBED JURISDICTION OR TO COMPEL IT TO EXERCISE ITS AUTHORITY WHEN
IT IS ITS DUTY TO DO SO."  ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21,
26 (1943).  P. 95. 

(B)  APPELLATE REVIEW SHOULD ORDINARILY BE POSTPONED UNTIL AFTER THE
TRIAL COURT RENDERS FINAL JUDGMENT.  THIS IS ESPECIALLY IMPORTANT IN
CRIMINAL CASES, WHERE A DEFENDANT IS ENTITLED TO A SPEEDY TRIAL AND MAY
NOT BE SUBJECTED TO DOUBLE JEOPARDY.  P. 96. 

(C)  APPEALS BY THE GOVERNMENT IN FEDERAL CRIMINAL CASES ARE NOT
FAVORED, AND MANDAMUS MAY NOT BE USED AS A SUBSTITUTE FOR AN
INTERLOCUTORY APPEAL.  PP. 96-97. 

(D)  FED. RULE CRIM. PROC. 7(F) SPECIFICALLY EMPOWERS THE TRIAL COURT
TO DIRECT THE FILING OF A BILL OF PARTICULARS, AND THAT COURT HAS BROAD
DISCRETION TO RULE UPON A REQUEST FOR SUCH A BILL.  PP. 98-99. 

(E)  THE REQUEST HERE DID NOT CALL FOR A LIST OF PROSECUTION
WITNESSES AND THE RECORD IN THIS CASE DOES NOT SUPPORT THE GOVERNMENT'S
ASSERTION THAT PETITIONER, CONTRARY TO FEDERAL RULES FOR PRETRIAL
CRIMINAL DISCOVERY, FOLLOWED A UNIFORM RULE OF REQUIRING THE GOVERNMENT
IN CRIMINAL CASES TO FURNISH THE DEFENSE, ON MOTION FOR A BILL OF
PARTICULARS, WITH A LIST OF POTENTIAL WITNESSES.  PP. 99-104. 

(F)  PETITIONER HAD MANIFESTED HIS WILLINGNESS TO NARROW THE
DISCLOSURE ORDER UPON A SHOWING THAT THE SAFETY OF INDIVIDUALS OR THE
GOVERNMENT'S ABILITY TO PRODUCE ITS EVIDENCE SO REQUIRED, BUT THE
GOVERNMENT MADE NO SUCH SHOWING.  P. 101. 

(G)  THE LACK OF AN OPINION BY THE COURT OF APPEALS PRECLUDES ANY
PROPER APPRAISAL OF THE BASIS FOR ITS INVOCATION OF THE EXTRAORDINARY
WRIT.  PP. 104-107. 

WILL, U.S. DISTRICT JUDGE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS THE PROPRIETY OF A WRIT OF MANDAMUS
ISSUED BY THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT TO COMPEL THE
PETITIONER, A UNITED STATES DISTRICT JUDGE, TO VACATE A PORTION OF A
PRETRIAL ORDER IN A CRIMINAL CASE. 

SIMMIE HORWITZ, THE DEFENDANT IN A CRIMINAL TAX EVASION CASE PENDING
BEFORE PETITIONER IN THE NORTHERN DISTRICT OF ILLINOIS, FILED A MOTION
FOR A BILL OF PARTICULARS, WHICH CONTAINED THIRTY REQUESTS FOR
INFORMATION.  THE GOVERNMENT RESISTED A NUMBER OF THE REQUESTS, AND
OVER THE COURSE OF SEVERAL HEARINGS MOST OF THESE OBJECTIONS WERE
EITHER WITHDRAWN BY THE GOVERNMENT OR SATISFIED BY AN APPROPRIATE
NARROWING OF THE SCOPE OF THE BILL OF PARTICULARS BY PETITIONER. 
ULTIMATELY THE DISPUTE CENTERED SOLELY ON DEFENDANT'S REQUEST NUMBER
25.  THIS REQUEST SOUGHT CERTAIN INFORMATION CONCERNING ANY ORAL
STATEMENTS OF THE DEFENDANT RELIED UPON BY THE GOVERNMENT TO SUPPORT
THE CHARGE IN THE INDICTMENT.  IT ASKED THE NAMES AND ADDRESSES OF THE
PERSONS TO WHOM SUCH STATEMENTS WERE MADE, THE TIMES AND PLACES AT
WHICH THEY WERE MADE, WHETHER THE WITNESSES TO THE STATEMENTS WERE
GOVERNMENT AGENTS AND WHETHER ANY TRANSCRIPTS OR MEMORANDA OF THE
STATEMENTS HAD BEEN PREPARED BY THE WITNESSES AND GIVEN TO THE
GOVERNMENT.  (FN1)  AFTER CONSIDERABLE DISCUSSION WITH COUNSEL FOR BOTH
SIDES, PETITIONER ORDERED THE GOVERNMENT TO FURNISH THE INFORMATION. 
THE UNITED STATES ATTORNEY DECLINED TO COMPLY WITH THE ORDER ON THE
GROUNDS THAT REQUEST NUMBER 25 CONSTITUTED A DEMAND FOR A LIST OF
PROSECUTION WITNESSES AND THAT PETITIONER HAD NO POWER UNDER RULE 7(F)
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE TO REQUIRE THE GOVERNMENT TO
PRODUCE SUCH A LIST. 

PETITIONER INDICATED HIS INTENTION TO DISMISS THE INDICTMENTS AGAINST
HORWITZ BECAUSE OF THE GOVERNMENT'S REFUSAL TO COMPLY WITH HIS ORDER
FOR A BILL OF PARTICULARS.  BEFORE THE ORDER OF DISMISSAL WAS ENTERED,
HOWEVER, THE GOVERNMENT SOUGHT AND OBTAINED EX PARTE FROM THE SEVENTH
CIRCUIT A STAY OF ALL PROCEEDINGS IN THE CASE.  THE COURT OF APPEALS
ALSO GRANTED THE GOVERNMENT LEAVE TO FILE A PETITION FOR A WRIT OF
MANDAMUS AND ISSUED A RULE TO SHOW CAUSE WHY SUCH A WRIT SHOULD NOT
ISSUE TO COMPEL PETITIONER TO STRIKE REQUEST NUMBER 25 FROM HIS BILL OF
PARTICULARS ORDER.  THIS CASE WAS SUBMITTED ON THE BRIEFS, AND THE
COURT OF APPEALS AT FIRST DENIED THE WRIT.  (FN2)  THE GOVERNMENT
PETITIONED FOR RECONSIDERATION, HOWEVER, AND THE COURT OF APPEALS,
WITHOUT TAKING NEW BRIEFS OR HEARING ORAL ARGUMENT, REVERSED ITSELF AND
WITHOUT OPINION ISSUED A WRIT OF MANDAMUS DIRECTING PETITIONER "TO
VACATE HIS ORDER DIRECTING THE GOVERNMENT TO ANSWER QUESTION 25 IN
DEFENDANT'S MOTION FOR BILL OF PARTICULARS."  (FN3) WE GRANTED
CERTIORARI, 386 U.S. 955 (1967), BECAUSE OF THE WIDE IMPLICATIONS OF
THE DECISION BELOW FOR THE ORDERLY ADMINISTRATION OF CRIMINAL JUSTICE
IN THE FEDERAL COURTS.  WE VACATE THE WRIT AND REMAND THE CASE TO THE
COURT OF APPEALS FOR FURTHER PROCEEDINGS. 

BOTH PARTIES HAVE DEVOTED SUBSTANTIAL ARGUMENT IN THIS COURT TO THE
PROPRIETY OF PETITIONER'S ORDER.  IN OUR VIEW OF THE CASE, HOWEVER, IT
IS UNNECESSARY TO REACH THIS QUESTION.  (FN4)  THE PEREMPTORY WRIT OF
MANDAMUS HAS TRADITIONALLY BEEN USED IN THE FEDERAL COURTS ONLY "TO
CONFINE AN INFERIOR COURT TO A LAWFUL EXERCISE OF ITS PRESCRIBED
JURISDICTION OR TO COMPEL IT TO EXERCISE ITS AUTHORITY WHEN IT IS ITS
DUTY TO DO SO."  ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21, 26
(1943).  WHILE THE COURTS HAVE NEVER CONFINED THEMSELVES TO AN
ARBITRARY AND TECHNICAL DEFINITION OF "JURISDICTION," IT IS CLEAR THAT
ONLY EXCEPTIONAL CIRCUMSTANCES AMOUNTING TO A JUDICIAL "USURPATION OF
POWER" WILL JUSTIFY THE INVOCATION OF THIS EXTRAORDINARY REMEDY.  DE
BEERS CONSOL.  MINES, LTD. V. UNITED STATES, 325 U.S. 212, 217 (1945). 
THUS THE WRIT HAS BEEN INVOKED WHERE UNWARRANTED JUDICIAL ACTION
THREATENED "TO EMBARRASS THE EXECUTIVE ARM OF THE GOVERNMENT IN
CONDUCTING FOREIGN RELATIONS," EX PARTE PERU, 318 U.S. 578, 588 (1943),
WHERE IT WAS THE ONLY MEANS OF FORESTALLING INTRUSION BY THE FEDERAL
JUDICIARY ON A DELICATE AREA OF FEDERAL-STATE RELATIONS, MARYLAND V.
SOPER, 270 U.S. 9 (1926), WHERE IT WAS NECESSARY TO CONFINE A LOWER
COURT TO THE TERMS OF AN APPELLATE TRIBUNAL'S MANDATE, UNITED STATES V.
UNITED STATES DIST. COURT, 334 U.S. 258 (1948), AND WHERE A DISTRICT
JUDGE DISPLAYED A PERSISTENT DISREGARD OF THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THIS COURT, LA BUY V. HOWES LEATHER CO., 352 U.S. 249
(1957); SEE MCCULLOUGH V. COSGRAVE, 309 U.S. 634 (1940); LOS ANGELES
BRUSH MFG. CORP. V. JAMES, 272 U.S. 701, 706, 707 (1927)(DICTUM).  AND
THE PARTY SEEKING MANDAMUS HAS "THE BURDEN OF SHOWING THAT ITS RIGHT TO
ISSUANCE OF THE WRIT IS 'CLEAR AND INDISPUTABLE.'"  BANKERS LIFE & CAS.
CO. V. HOLLAND, 346 U.S. 379, 384 (1953); SEE UNITED STATES V. DUELL,
172 U.S. 576, 582 (1899). 

WE ALSO APPROACH THIS CASE WITH AN AWARENESS OF ADDITIONAL
CONSIDERATIONS WHICH FLOW FROM THE FACT THAT THE UNDERLYING PROCEEDING
IS A CRIMINAL PROSECUTION.  ALL OUR JURISPRUDENCE IS STRONGLY COLORED
BY THE NOTION THAT APPELLATE REVIEW SHOULD BE POSTPONED, EXCEPT IN
CERTAIN NARROWLY DEFINED CIRCUMSTANCES, UNTIL AFTER FINAL JUDGMENT HAS
BEEN RENDERED BY THE TRIAL COURT.  SEE, E.G., JUDICIARY ACT OF 1789,
SECS. 21, 22, 25, 1 STAT. 73, 83, 84, 85; COBBLEDICK V. UNITED STATES,
309 U.S. 323, 326 (1940); MCLISH V. ROFF, 141 U.S. 661 (1891).  THIS
GENERAL POLICY AGAINST PIECEMEAL APPEALS TAKES ON ADDED WEIGHT IN
CRIMINAL CASES, WHERE THE DEFENDANT IS ENTITLED TO A SPEEDY RESOLUTION
OF THE CHARGES AGAINST HIM.  DIBELLA V. UNITED STATES, 369 U.S. 121,
126 (1962).  MOREOVER, "IN THE FEDERAL JURISPRUDENCE, AT LEAST, APPEALS
BY THE GOVERNMENT IN CRIMINAL CASES ARE SOMETHING UNUSUAL, EXCEPTIONAL,
NOT FAVORED."  CARROLL V. UNITED STATES, 354 U.S. 394, 400 (1957), AT
LEAST IN PART BECAUSE THEY ALWAYS THREATEN TO OFFEND THE POLICIES
BEHIND THE DOUBLE-JEOPARDY PROHIBITION, CF. FONG FOO V. UNITED STATES,
369 U.S. 141 (1962).  GOVERNMENT APPEAL IN THE FEDERAL COURTS HAS THUS
BEEN LIMITED BY CONGRESS TO NARROW CATEGORIES OF ORDERS TERMINATING THE
PROSECUTION, SEE 18 U.S.C. SEC 3731, AND THE CRIMINAL APPEALS ACT IS
STRICTLY CONSTRUED AGAINST THE GOVERNMENT'S RIGHT OF APPEAL, CARROLL V.
UNITED STATES, 354 U.S. 394, 399-400 (1957).  MANDAMUS, OF COURSE, MAY
NEVER BE EMPLOYED AS A SUBSTITUTE FOR APPEAL IN DEROGATION OF THESE
CLEAR POLICIES.  E.G., FONG FOO V. UNITED STATES, 369 U.S. 141 (1962);
PARR V. UNITED STATES, 351 U.S. 513, 520-521 (1956); BANK OF COLUMBIA
V. SWEENY, 1 PET. 567, 569 (1828).  NOR IS THE CASE AGAINST PERMITTING
THE WRIT TO BE USED AS A SUBSTITUTE FOR INTERLOCUTORY APPEAL "MADE LESS
COMPELLING  ...  BY THE FACT THAT THE GOVERNMENT HAS NO LATER RIGHT TO
APPEAL."  DIBELLA V. UNITED STATES, 369 U.S. 121, 130 (1962).  (FN5)
THIS IS NOT TO SAY THAT MANDAMUS MAY NEVER BE USED TO REVIEW PROCEDURAL
ORDERS IN CRIMINAL CASES.  IT HAS BEEN INVOKED SUCCESSFULLY WHERE THE
ACTION OF THE TRIAL COURT TOTALLY DEPRIVED THE GOVERNMENT OF ITS RIGHT
TO INITIATE A PROSECUTION, EX PARTE UNITED STATES, 287 U.S. 241 (1932),
AND WHERE THE COURT OVERREACHED ITS JUDICIAL POWER TO DENY THE
GOVERNMENT THE RIGHTFUL FRUITS OF A VALID CONVICTION, EX PARTE UNITED
STATES, 242 U.S. 27 (1916).  BUT THIS COURT HAS NEVER APPROVED THE USE
OF THE WRIT TO REVIEW AN INTERLOCUTORY PROCEDURAL ORDERS IN A CRIMINAL
CASE WHICH DID NOT HAVE THE EFFECT OF A DISMISSAL.  WE NEED NOT DECIDE
UNDER WHAT CIRCUMSTANCES, IF ANY, SUCH A USE OF MANDAMUS WOULD BE
APPROPRIATE.  IT IS ENOUGH TO NOTE THAT WE APPROACH THE DECISION IN
THIS CASE WITH AN AWARENESS OF THE CONSTITUTIONAL PRECEPTS THAT A MAN
IS ENTITLED TO A SPEEDY TRIAL AND THAT HE MAY NOT BE PLACED TWICE IN
JEOPARDY FOR THE SAME OFFENSE. 

IN LIGHT OF THESE CONSIDERATION AND CRITERIA, NEITHER THE RECORD
BEFORE US NOR THE CRYPTIC ORDER OF THE COURT OF APPEALS JUSTIFIES THE
INVOCATION OF THE EXTRAORDINARY WRIT IN THIS CASE. 

WE DO NOT UNDERSTAND THE GOVERNMENT TO ARGUE THAT PETITIONER WAS IN
ANY SENSE WITHOUT "JURISDICTION" TO ORDER IT TO FILE A BILL OF
PARTICULARS.  (FN6)  SUFFICE IT TO NOTE THAT RULE 7(F) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE SPECIFICALLY EMPOWERS THE TRIAL COURT TO
"DIRECT THE FILING OF A BILL OF PARTICULARS,"  (FN7)  AND THAT FEDERAL
TRIAL COURTS HAVE ALWAYS HAD VERY BROAD DISCRETION IN RULING UPON
REQUESTS FOR SUCH BILLS, COMPARE WONG TAI V. UNITED STATES, 273 U.S.
77, 82 (1927).  FURTHERMORE, IT IS NOT UNCOMMON FOR THE GOVERNMENT TO
BE REQUIRED TO DISCLOSE THE NAMES OF SOME POTENTIAL WITNESSES IN A BILL
OF PARTICULARS, WHERE THIS INFORMATION IS NECESSARY OR USEFUL IN THE
DEFENDANT'S PREPARATION FOR TRIAL.  SEE, E.G., UNITED STATES V. WHITE,
370 F.2D 559 (C.A. 7TH CIR. 1966).  SEE ALSO UNITED STATES V. DEBROW,
346 U.S. 374, 378 (1953). 

THE GOVERNMENT SEEKS INSTEAD TO JUSTIFY THE EMPLOYMENT OF THE WRIT IN
THIS INSTANCE ON THE GROUND THAT PETITIONER'S CONDUCT DISPLAYS A
"PATTERN OF MANIFEST NON-COMPLIANCE WITH THE RULES GOVERNING FEDERAL
CRIMINAL TRIALS."  (FN8)  IT ARGUES THAT THE FEDERAL RULES PLACE
SETTLED LIMITATIONS UPON PRETRIAL DISCOVERY IN CRIMINAL CASES, AND THAT
A TRIAL COURT MAY NOT, IN THE ABSENCE OF COMPELLING JUSTIFICATION,
ORDER THE GOVERNMENT TO PRODUCE A LIST OF ITS WITNESSES IN ADVANCE OF
TRIAL.  IT ARGUES FURTHER THAT IN ONLY ONE CATEGORY OF CASES, I.E.,
PROSECUTIONS FOR TREASON AND OTHER CAPITAL OFFENSES, IS THE GOVERNMENT
REQUIRED TO TURN OVER TO THE DEFENSE SUCH A LIST OF ITS WITNESSES.  A
GENERAL POLICY OF REQUIRING SUCH DISCLOSURE WITHOUT A PARTICULARIZED
SHOWING OF NEED WOULD, IT IS CONTENDED, OFFEND THE INFORMANT'S
PRIVILEGE.  PETITIONER, ACCORDING TO THE GOVERNMENT, ADOPTED "A UNIFORM
RULE IN HIS COURTROOM REQUIRING THE GOVERNMENT IN A CRIMINAL CASE TO
FURNISH THE DEFENSE, ON MOTION FOR A BILL OF PARTICULARS, A LIST OF
POTENTIAL WITNESSES."  (FN9)  THE GOVERNMENT CONCLUDES THAT SINCE
PETITIONER OBVIOUSLY HAD NO POWER TO ADOPT SUCH A RULE, MANDAMUS WILL
LIE UNDER THIS COURT'S DECISION IN LA BUY V. HOWES LEATHER CO., 352
U.S. 249 (1957), TO CORRECT THIS STUDIED DISREGARD OF THE LIMITATIONS
PLACED UPON THE DISTRICT COURTS BY THE FEDERAL RULES.  (FN10) 

THE ACTION OF THE COURT OF APPEALS CANNOT, ON THE RECORD BEFORE US,
BEAR THE WEIGHT OF THIS JUSTIFICATION.  THERE IS ABSOLUTELY NO
FOUNDATION IN THIS RECORD FOR THE GOVERNMENT'S ASSERTIONS CONCERNING
PETITIONER'S PRACTICE.  THE LEGAL PROPOSITION THAT MANDAMUS WILL LIE IN
APPROPRIATE CASES TO CORRECT WILLFUL DISOBEDIENCE OF THE RULES LAID
DOWN BY THIS COURT IS NOT CONTROVERTED.  BUT THE POSITION OF THE
GOVERNMENT RESTS ON TWO CENTRAL FACTUAL PREMISES:  (1) THAT PETITIONER
IN EFFECT ORDERED IT TO PRODUCE A LIST OF WITNESSES IN ADVANCE OF
TRIAL; AND (2) THAT PETITIONER TOOK THIS ACTION PURSUANT TO A
DELIBERATELY ADOPTED POLICY IN DISREGARD OF THE RULES OF CRIMINAL
PROCEDURE.  NEITHER OF THESE PREMISES FINDS SUPPORT IN THE RECORD. 

PETITIONER REPEATEDLY AND, WE THINK, CORRECTLY EMPHASIZED THAT
REQUEST NUMBER 25 DID NOT CALL FOR A LIST OF GOVERNMENT WITNESSES.  HE
CAREFULLY NOTED THAT IT WAS UTTERLY IMMATERIAL UNDER THE TERMS OF
REQUEST NUMBER 25 WHETHER THE GOVERNMENT PLANNED TO CALL ANY OF THE
INDIVIDUALS WHOSE NAMES WERE SOUGHT TO THE WITNESS STAND DURING THE
TRIAL.  FURTHERMORE, IT IS CLEAR AS A PRACTICAL MATTER THAT THE
GOVERNMENT'S PROOF IN THIS CASE, AS IN ANY PROSECUTION OF THIS COMPLEX
NATURE, WILL EXTEND FAR BEYOND MERE DAMAGING ADMISSIONS OF THE
DEFENDANT, AND THAT WITNESSES WILL IN ALL PROBABILITY BE CALLED WHO
HAVE NEVER HEARD HORWITZ MAKE ANY INCRIMINATING STATEMENTS.  NOR, IF
THE LIST OF PEOPLE WHO HAVE ALLEGEDLY HEARD HORWITZ MAKE DAMAGING
ADMISSIONS IS LONG, IS IT LIKELY THAT THEY WILL ALL BE CALLED TO
TESTIFY FOR THE GOVERNMENT.  THUS WHILE THE TWO CATEGORIES HAVE A CLEAR
PROBABLE OVERLAP, THEY ARE NOT CO-EXTENSIVE.  AND, AS PETITIONER STATED
IN THE OPINION ACCOMPANYING HIS ORIGINAL ORDER TO THE GOVERNMENT TO
FILE A BILL OF PARTICULARS: 

"THE REASON FOR REQUIRING DISCLOSURE OF THEIR NAMES  ...  IS NOT THAT
THEY WILL OR MAY BE WITNESSES, BUT THAT THE DEFENDANT REQUIRES
IDENTIFICATION OF THE TIMES, PLACES AND PERSONS PRESENT IN ORDER TO
PREPARE HIS DEFENSE." 

INDEED, PETITIONER EXCUSED THE GOVERNMENT FROM ANSWERING REQUEST
NUMBER 29(A), WHICH WAS SO BROAD AS TO CONSTITUTE IN EFFECT A DEMAND
FOR A LIST OF PROSECUTION WITNESSES.  FINALLY, IT SHOULD BE NOTED THAT
IN THE OPINION ACCOMPANYING THE ORIGINAL ORDER, PETITIONER AVERRED HIS
WILLINGNESS TO NARROW THE ORDER OF DISCLOSURE UPON A SHOWING BY THE
GOVERNMENT "THAT SUCH DISCLOSURE WILL INVOLVE PHYSICAL RISK TO THE
INDIVIDUALS OR PREJUDICE THE GOVERNMENT IN ITS ABILITY TO PRODUCE ITS
EVIDENCE."  HE REPEATED THIS OFFER NUMEROUS TIMES IN THE SUBSEQUENT
HEARINGS ON THE GOVERNMENT'S OBJECTIONS TO THE BILL, BUT THE UNITED
STATES ATTORNEY NEVER SUGGESTED THAT SUCH A SHOWING COULD BE MADE IN
THIS CASE.  (FN11)    THE RECORD IS EQUALLY DEVOID OF SUPPORT FOR THE
NOTION THAT PETITIONER HAD ADOPTED A DELIBERATE POLICY IN OPEN DEFIANCE
OF THE FEDERAL RULES IN MATTERS OF PRETRIAL CRIMINAL DISCOVERY.  THE
EXTENDED COLLOQUY BETWEEN PETITIONER AND GOVERNMENT COUNSEL REVEALS AT
MOST THAT PETITIONER TOOK A GENERALLY LIBERAL VIEW OF THE DISCOVERY
RIGHTS OF CRIMINAL DEFENDANTS.  (FN12)  BUT PETITIONER WAS CAREFUL
NEVER TO DIVORCE HIS RULING FROM HIS VIEW OF THE LEGITIMATE NEEDS OF
THE DEFENDANT IN THE CASE BEFORE HIM, AND THERE IS NO INDICATION THAT
HE CONSIDERED THE CASE TO BE GOVERNED BY A UNIFORM AND INFLEXIBLE RULE
OF DISCLOSURE.  (FN13)  THUS THE MOST THAT CAN BE CLAIMED ON THIS
RECORD IS THAT PETITIONER MAY HAVE ERRED IN RULING ON MATTERS WITHIN
HIS JURISDICTION.  SEE PARR V. UNITED STATES, 351 U.S. 513, 520
(1956).  BUT "THE EXTRAORDINARY WRITS DO NOT REACH TO SUCH CASES; THEY
MAY NOT BE USED TO THWART THE CONGRESSIONAL POLICY AGAINST PIECEMEAL
APPEALS."  ID., AT 520-521.  MANDAMUS, IT MUST BE REMEMBERED, DOES NOT
"RUN THE GAUNTLET OF REVERSIBLE ERRORS."  BANKERS LIFE & CAS. CO. V.
HOLLAND, 346 U.S. 379, 382 (1953).  ITS OFFICE IS NOT TO "CONTROL THE
DECISION OF THE TRIAL COURT," BUT RATHER MERELY TO CONFINE THE LOWER
COURT TO THE SPHERE OF ITS DISCRETIONARY POWER.  ID., AT 383.   THUS
THE RECORD BEFORE US SIMPLY FAILS TO DEMONSTRATE THE NECESSITY FOR THE
DRASTIC REMEDY EMPLOYED BY THE COURT OF APPEALS. 

EVEN MORE IMPORTANT IN OUR VIEW, HOWEVER, THAN THESE DEFICIENCIES IN
THE RECORD IS THE FAILURE OF THE COURT OF APPEALS TO ATTEMPT TO SUPPLY
ANY REASONED JUSTIFICATION OF ITS ACTION.  HAD THE GOVERNMENT IN FACT
SHOWN THAT PETITIONER ADOPTED A POLICY IN DELIBERATE DISREGARD OF THE
CRIMINAL DISCOVERY RULES AND THAT THIS POLICY HAD PROVED SERIOUSLY
DISRUPTIVE OF THE EFFICIENT ADMINISTRATION OF CRIMINAL JUSTICE IN THE
NORTHERN DISTRICT OF ILLINOIS, IT WOULD HAVE RAISED SERIOUS QUESTIONS
UNDER THIS COURT'S DECISION IN LA BUY V. HOWES LEATHER CO., 352 U.S.
249 (1957).  (FN14)  IN LA BUY, HOWEVER, WE SPECIFICALLY RELIED UPON
EVIDENCE IN THE RECORD WHICH SHOWED A PATTERN OF IMPROPER REFERENCES OF
CASES TO SPECIAL MASTERS BY THE DISTRICT JUDGE.  352 U.S., AT 258. 
THERE IS NO EVIDENCE IN THIS RECORD CONCERNING PETITIONER'S PRACTICE IN
OTHER CASES, ASIDE FROM HIS REMARK THAT THE GOVERNMENT WAS GENERALLY
DISSATISFIED WITH IT.  (FN15)  AND HIS STATEMENTS DO NOT REVEAL ANY
INTENT TO EVADE OR DISREGARD THE RULES.  WE DO NOT KNOW WHAT HE ORDERED
THE GOVERNMENT TO REVEAL UNDER WHAT CIRCUMSTANCES IN OTHER CASES.  THIS
STATE OF THE RECORD RENDERS THE SILENCE OF THE COURT OF APPEALS ALL THE
MORE CRITICAL.  WE RECOGNIZED IN LA BUY THAT THE FAMILIARITY OF A COURT
OF APPEALS WITH THE PRACTICE OF THE INDIVIDUAL DISTRICT COURTS WITHIN
ITS CIRCUIT WAS RELEVANT TO AN ASSESSMENT OF THE NEED FOR MANDAMUS AS A
CORRECTIVE MEASURE.  SEE 352 U.S., AT 258.  BUT WITHOUT AN OPINION FROM
THE COURT OF APPEALS WE DO NOT KNOW WHAT ROLE, IF ANY, THIS FACTOR
PLAYED IN THE DECISION BELOW.  IN FACT, WE ARE IN THE DARK WITH RESPECT
TO THE POSITION OF THE COURT OF APPEALS ON ALL THE ISSUES CRUCIAL TO AN
INFORMED EXERCISE OF OUR POWER OF REVIEW.  WE DO NOT KNOW:  (1) WHAT
THE COURT OF APPEALS FOUND PETITIONER TO HAVE DONE; (2) WHAT IT
OBJECTED TO IN PETITIONER'S COURSE OF CONDUCT - WHETHER IT WAS THE
ORDER IN THIS PARTICULAR CASE OR SOME GENERAL PRACTICE ADOPTED BY
PETITIONER IN THIS AND OTHER CASES; (FN16) (3) WHAT IT THOUGHT WAS THE
PROPER SCOPE OF A BILL OF PARTICULARS UNDER RULE 7(F) AND WHAT
LIMITATIONS IT THOUGHT THE CRIMINAL RULES PLACED UPON THE PARTICULAR OR
GENERALIZED DISCRETION OF A DISTRICT COURT TO ORDER THE GOVERNMENT TO
FILE SUCH A BILL; OR (4) WHAT RELEVANCE, IF ANY, IT ATTACHED TO THE
FACT THAT THIS ORDER WAS ENTERED IN A CRIMINAL CASE, IN ASSESSING THE
AVAILABILITY OF MANDAMUS.  WE CANNOT PROPERLY IDENTIFY THE QUESTIONS
FOR DECISION IN THE CASE BEFORE US WITHOUT ILLUMINATION OF THIS UNCLEAR
RECORD BY THE MEASURED AND EXPOSED REFLECTION OF THE COURT OF APPEALS. 

DUE REGARD, NOT MERELY FOR THE REVIEWING FUNCTIONS OF THIS COURT, BUT
FOR THE "DRASTIC AND EXTRAORDINARY" NATURE OF THE MANDAMUS REMEDY, EX
PARTE FAHEY, 332 U.S. 258, 259 (1947), AND FOR THE EXTREMELY AWKWARD
POSITION IN WHICH IT PLACES THE DISTRICT JUDGE, ID., AT 260, DEMANDS
THAT A COURT ISSUING THE WRIT GIVE A REASONED EXPOSITION OF THE BASIS
FOR ITS ACTION. 

MANDAMUS IS NOT A PUNITIVE REMEDY.  THE ENTIRE THRUST OF THE
GOVERNMENT'S JUSTIFICATION FOR MANDAMUS IN THIS CASE, MOREOVER, IS THAT
THE WRIT SERVES A VITAL CORRECTIVE AND DIDACTIC FUNCTION.  WHILE THESE
AIMS LAY AT THE CORE OF THIS COURT'S DECISIONS IN LA BUY AND
SCHLAGENHAUF V. HOLDER, 379 U.S. 104 (1964), WE FAIL TO SEE HOW THEY
CAN BE SERVED HERE WITHOUT FINDINGS OF FACT BY THE ISSUING COURT AND
SOME STATEMENT OF THE COURT'S LEGAL REASONING.  A MANDAMUS FROM THE
BLUE WITHOUT RATIONALE IS TANTAMOUNT TO AN ABDICATION OF THE VERY
EXPOSITORY AND SUPERVISORY FUNCTIONS OF AN APPELLATE COURT UPON WHICH
THE GOVERNMENT RESTS ITS ATTEMPT TO JUSTIFY THE ACTION BELOW. 

THE PEREMPTORY COMMON-LAW WRITS ARE AMONG THE MOST POTENT WEAPONS IN
THE JUDICIAL ARSENAL.  "AS EXTRAORDINARY REMEDIES, THEY ARE RESERVED
FOR REALLY EXTRAORDINARY CAUSES."  EX PARTE FAHEY, 332 U.S. 258, 260
(1947).  THERE IS NOTHING IN THE RECORD HERE TO DEMONSTRATE THAT THIS
CASE FALLS INTO THAT CATEGORY, AND THUS THE JUDGMENT BELOW CANNOT
STAND.  WHAT MIGHT BE THE PROPER DECISION UPON A MORE COMPLETE RECORD,
SUPPLEMENTED BY THE FINDINGS AND CONCLUSIONS OF THE COURT OF APPEALS,
WE CANNOT AND DO NOT SAY.  HENCE THE WRIT IS VACATED AND THE CAUSE IS
REMANDED TO THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  REQUEST NUMBER 25 ORIGINALLY READ: 

"25.  IF THE GOVERNMENT RELIES UPON ANY ORAL STATEMENTS OF THE
DEFENDANT, STATE WITH RESPECT TO EACH SUCH STATEMENT, IF THERE WAS MORE
THAN ONE: 

"A.  THE NAME AND ADDRESS OF THE PERSON TO WHOM THE STATEMENT WAS
MADE: 

"B.  THE DATE ON WHICH THE STATEMENT WAS MADE: 

"C.  THE PLACE WHERE IT WAS MADE: 

"D.  THE SUBSTANCE OF THE STATEMENT: 

"E.  WHETHER THE PERSON TO WHOM THE STATEMENT WAS MADE WAS A
GOVERNMENT AGENT AT THE TIME OF THE STATEMENT: 

"F.  THE NAMES AND ADDRESSES OF ANY OTHER PERSONS PRESENT AT THE TIME
THE STATEMENT WAS MADE; AND:

"G.  WHETHER A WRITTEN MEMORANDUM OR VERBATIM TRANSCRIPT OF THE ORAL
STATEMENT WAS MADE, AND, IF SO, WHETHER THE GOVERNMENT HAS POSSESSION
OF THE MEMORANDUM OR TRANSCRIPT." 

THE GOVERNMENT OBJECTED, INTER ALIA, TO COMPLIANCE WITH PART "D" ON
WORK-PRODUCT GROUNDS.  AT FIRST PETITIONER SUSTAINED THIS OBJECTION AND
STRUCK PART "D" ALTOGETHER; HOWEVER, HE LATER ORDERED THE GOVERNMENT TO
REVEAL THE SUBSTANCE OF STATEMENTS MADE TO GOVERNMENT AGENTS, BUT NOT
OF THOSE MADE TO PRIVATE PARTIES. 

FN2  THE ORDER OF THE COURT OF APPEALS DENYING THE WRIT READ, IN ITS
ENTIRETY: 

"THIS IS A PETITION BY THE GOVERNMENT FOR WRIT OF MANDAMUS TO COMPEL
RESPONDENT, A DISTRICT COURT JUDGE, TO VACATE HIS ORDER WHICH
EFFECTUALLY DIRECTS THE GOVERNMENT IN A CRIMINAL CAUSE TO GIVE THE
DEFENDANT NAMES AND ADDRESSES OF PERSONS TO WHOM DEFENDANT IN SAID
CAUSE MADE ORAL STATEMENTS TO SUPPORT THE CHARGES IN THE INDICTMENTS. 
BRIEFS HAVE BEEN FILED IN THIS COURT BY BOTH PARTIES.  THE COURT HAS
CONSIDERED THE BRIEFS AND IS FULLY INFORMED OF THE POINTS MADE AND THE
POSITIONS OF THE PARTIES WITH RESPECT TO THE ISSUE, AND: 

"THE COURT FINDS THAT THE ORDER SUBJECT OF THE PETITION IS NOT AN
APPEALABLE ORDER, AND A REVIEW OF IT WOULD OFFEND THE POLICY AGAINST
PIECEMEAL APPEALS IN CRIMINAL CASES, COBBLEDICK V. UNITED STATES, 309
U.S. 323; THAT MANDAMUS MAY NOT BE USED AS A MEANS OF REVIEWING THE NON
APPEALABLE ORDER, ROCHE V. EVAPORATED MILK ASSOCIATION, 319 U.S. 21;
THAT FEDERAL COURTS USE MANDAMUS FOR THE TRADITIONAL PURPOSE OF
CONFINING A DISTRICT COURT TO A LAWFUL EXERCISE OF ITS JURISDICTION OR
TO COMPEL IT TO EXERCISE ITS PROPER JURISDICTION, ROCHE V. EVAPORATED
MILK ASSOCIATION; THAT THE DISTRICT JUDGE'S ORDER UPON THE GOVERNMENT
TO FURNISH NAMES AND ADDRESSES OF WITNESSES TO A DEFENDANT MAY BE
ERRONEOUS, A QUESTION WE DO NOT DECIDE, BUT THE RULING ITSELF WAS
WITHIN THE COURT'S JURISDICTION, ROCHE V. EVAPORATED MILK ASSOCIATION;
THAT THE RULING CAN BE REVIEWED ON APPEAL FROM A FINAL JUDGMENT; AND
THAT THERE IS NO QUESTION HERE THAT THE DISTRICT JUDGE REFUSED TO
EXERCISE HIS PROPER JURISDICTION. 

"IT IS THEREFORE ORDERED THAT THE PETITION FOR WRIT OF MANDAMUS BE
AND IT IS HEREBY DENIED." 

FN3  THE ORIGINAL ORDER DENYING THE WRIT WAS ENTERED ON JULY 12,
1966.  ON AUGUST 16, 1966, THE COURT GRANTED THE GOVERNMENT'S PETITION
FOR RECONSIDERATION, REMARKING ONLY THAT: 

"THE COURT FINDS THAT IN THE CIRCUMSTANCES OF THIS PARTICULAR CASE
THE COURT SHOULD CONSIDER THE MERITS OF THE RULING OF THE DISTRICT
COURT CHALLENGED BY THE GOVERNMENT, RATHER THAN TO REMIT THE GOVERNMENT
TO A RADICAL ALTERNATIVE APPEALABLE JUDGMENT AVAILABLE TO THE TRIAL
JUDGE UPON THE GOVERNMENT'S PERSISTENT REFUSAL TO COMPLY. 

"IT IS THEREFORE ORDERED THAT THE ORDER OF THIS COURT OF JULY 12,
1966, BE AND IT IS HEREBY VACATED, AND THE CAUSE IS TAKEN BY THE COURT
UPON THE PETITION FOR THE WRIT, THE BRIEFS OF BOTH PARTIES AND THE
RECORD." 

SUBSEQUENTLY, ON OCTOBER 4, 1966, THE COURT OF APPEALS GRANTED THE
WRIT.  ITS ENTIRE ORDER READS AS FOLLOWS: 

"THIS CAUSE CAME ON TO BE HEARD UPON THE GOVERNMENT'S PETITION FOR
WRIT OF MANDAMUS ORDERING RESPONDENT TO VACATE HIS ORDER DIRECTING THE
GOVERNMENT TO ANSWER QUESTION 25 IN DEFENDANT'S MOTION FOR BILL OF
PARTICULARS, WHICH QUESTION SOUGHT, AMONG OTHER THINGS, THE NAMES AND
ADDRESSES OF PERSONS TO WHOM DEFENDANT MADE ORAL STATEMENTS SUPPORTING
THE INDICTMENT CHARGING WILFUL EVASION OF INCOME TAX, AND WHICH
STATEMENTS THE GOVERNMENT WOULD RELY UPON AT THE TRIAL; UPON THE RULE
ISSUED UPON RESPONDENT TO SHOW CAUSE WHY THE WRIT SHOULD NOT ISSUE;
UPON THE BRIEF OF RESPONDENT ANSWERING THE RULE, AND THE BRIEF OF THE
GOVERNMENT; AND UPON THE RECORD. 

"AND THE COURT HAVING ON AUGUST 16, 1966 VACATED ITS JULY 12, 1966
ORDER DENYING THE WRIT, AND HAVING RECONSIDERED THE QUESTION: 

"IT IS ORDERED THAT A WRIT OF MANDAMUS ISSUE AS PRAYED IN THE
GOVERNMENT'S PETITION DIRECTING RESPONDENT TO VACATE HIS ORDER
DIRECTING THE GOVERNMENT TO ANSWER QUESTION 25 IN DEFENDANT'S MOTION
FOR BILL OF PARTICULARS." 

FN4  IT IS LIKEWISE UNNECESSARY FOR US TO REACH THE QUESTION WHETHER
THE WRIT IN THE CIRCUMSTANCES OF THIS CASE MAY BE SAID TO ISSUE IN AID
OF AN EXERCISE OF THE COURT OF APPEALS' APPELLATE JURISDICTION.  SEE 28
U.S.C. SEC 1651; ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21, 25
(1943).  COMPARE IN RE UNITED STATES, 348 F.2D 624 (C.A. 1ST CIR.
1965), WITH UNITED STATES V. BONDY, 171 F.2D 642 (C.A.2D CIR. 1948). 
IN OUR VIEW, EVEN ASSUMING THAT THE POSSIBLE FUTURE APPEAL IN THIS CASE
WOULD SUPPORT THE COURT OF APPEALS' MANDAMUS JURISDICTION, IT WAS AN
ABUSE OF DISCRETION FOR THE COURT TO ACT AS IT DID IN THE CIRCUMSTANCES
OF THIS CASE. 

FN5  THUS IT IS IRRELEVANT, AND WE DO NOT DECIDE, WHETHER THE
GOVERNMENT COULD APPEAL IN THE EVENT PETITIONER DISMISSED THE HORWITZ
INDICTMENTS BECAUSE OF ITS REFUSAL TO COMPLY WITH HIS BILL OF
PARTICULARS ORDER.  BOTH PARTIES AGREE THAT IT IS HIGHLY DOUBTFUL THAT
IT COULD APPEAL.  SEE UNITED STATES V. APEX DISTRIB.  CO., 270 F.2D 747
(C.A. 9TH CIR. 1959).  THE GOVERNMENT ARGUES THAT IT IS UNSEEMLY TO
FORCE IT TO DEFY THE COURT IN ORDER TO SEEK REVIEW OF ITS ORDER, AND
DOUBLY SO BECAUSE IT MAY SECURE REVIEW WITH CERTAINTY ONLY IF THE
UNITED STATES ATTORNEY IS CITED FOR CONTEMPT, COMPARE BOWMAN DAIRY CO.
V. UNITED STATES, 341 U.S. 214 (1951), IN VIEW OF THE DOUBTFUL STATUS
OF ITS RIGHT TO APPEAL A DISMISSAL.  BUT THIS MISSES THE MARK. 
CONGRESS CLEARLY CONTEMPLATED WHEN IT PLACED DRASTIC LIMITS UPON THE
GOVERNMENT'S RIGHT OF REVIEW IN CRIMINAL CASES THAT IT WOULD BE
COMPLETELY UNABLE TO SECURE REVIEW OF SOME ORDERS HAVING A SUBSTANTIAL
EFFECT ON ITS ABILITY TO SECURE CRIMINAL CONVICTIONS.  THIS COURT
CANNOT AND WILL NOT GRANT THE GOVERNMENT A RIGHT OF REVIEW WHICH
CONGRESS HAS CHOSEN TO WITHHOLD.  CARROLL V. UNITED STATES, 354 U.S.
394, 407-408 (1957).  WE MAY ASSUME FOR PURPOSES OF THIS DECISION THAT
THERE MAY BE NO OTHER WAY FOR THE GOVERNMENT TO SEEK REVIEW OF
INDIVIDUAL ORDERS DIRECTING IT TO FILE BILLS OF PARTICULARS. 

FN6  NOR DO WE UNDERSTAND THE GOVERNMENT TO ARGUE THAT A JUDGE HAS NO
"POWER" TO ENTER AN ERRONEOUS ORDER.  ACCEPTANCE OF THIS SEMANTIC
FALLACY WOULD UNDERMINE THE SETTLED LIMITATIONS UPON THE POWER OF AN
APPELLATE COURT TO REVIEW INTERLOCUTORY ORDERS.  NEITHER "JURISDICTION"
NOR "POWER" CAN BE SAID TO "RUN THE GAUNTLET OF REVERSIBLE ERRORS." 
BANKERS LIFE & CAS. CO. V. HOLLAND, 346 U.S. 379, 382 (1953).  COURTS
FACED WITH PETITIONS FOR THE PEREMPTORY WRITS MUST BE CAREFUL LEST THEY
SUFFER THEMSELVES TO BE MISLED BY LABELS SUCH AS "ABUSE OF DISCRETION"
AND "WANT OF POWER" INTO INTERLOCUTORY REVIEW OF NONAPPEALABLE ORDERS
ON THE MERE GROUND THAT THEY MAY BE ERRONEOUS.  "CERTAINLY CONGRESS
KNEW THAT SOME INTERLOCUTORY ORDERS MIGHT BE ERRONEOUS WHEN IT CHOSE TO
MAKE THEM NON-REVIEWABLE."  DE BEERS CONSOL.  MINES, LTD. V. UNITED
STATES, 325 U.S. 212, 223, 225 (1945)(DISSENTING OPINION OF MR. JUSTICE
DOUGLAS). 

FN7  IT SHOULD BE NOTED THAT RULE 7(F) WAS AMENDED, EFFECTIVE JULY 1,
1966, TO ELIMINATE THE REQUIREMENT THAT A DEFENDANT SEEKING A BILL OF
PARTICULARS MAKE A SHOWING OF "CAUSE."  THE GOVERNMENT ARGUES THAT THIS
AMENDMENT WAS NOT DESIGNED "TO TRANSFORM THE BILL OF PARTICULARS INTO
AN INSTRUMENT OF BROAD DISCOVERY."  BRIEF FOR UNITED STATES, P. 15, N.
5.  WE INTIMATE NO VIEW REGARDING THE CONSTRUCTION OF THE AMENDMENT. 
PETITIONER'S ORDER WAS ENTERED BEFORE THE AMENDMENT WAS PROMULGATED. 
THE IMPACT OF THE AMENDMENT ON THE PRESENT PROCEEDING WILL, OF COURSE,
BE A QUESTION OPEN UPON REMAND.    FN8  BRIEF FOR UNITED STATES, P.
24. 

FN9  BRIEF FOR UNITED STATES, P. 11. 

FN10  WE NOTE IN PASSING THAT LA BUY AND THE OTHER DECISIONS OF THIS
COURT APPROVING THE USE OF MANDAMUS AS A MEANS OF POLICING COMPLIANCE
WITH THE PROCEDURAL RULES WERE CIVIL CASES.  SEE SCHLAGENHAUF V.
HOLDER, 379 U.S. 104 (1964); MCCULLOUGH V. COSGRAVE, 309 U.S. 634
(1940); LOS ANGELES BRUSH MFG. CORP. V. JAMES, 272 U.S. 701, 706, 707
(1927)(DICTUM).  WE HAVE POINTED OUT THAT THE FACT THIS CASE INVOLVES A
CRIMINAL PROSECTUION HAS CONTEXTUAL RELEVANCE.  SEE SUPRA, AT 96-98. 
IN VIEW OF OUR READING OF THE RECORD, HOWEVER, WE NEED NOT VENTURE AN
ABSTRACT PRONOUNCEMENT ON THE QUESTION WHETHER THIS FACT IMPOSES A MORE
STRINGENT STANDARD FOR THE INVOCATION OF MANDAMUS BY THE GOVERNMENT
WHERE THE ALLEGATION IS THAT A DISTRICT JUDGE HAS DEVIATED FROM THE
FEDERAL RULES. 

FN11  PETITIONER AT ONE POINT STATED TO GOVERNMENT COUNSEL: 

"I TOLD YOU THAT ANY TIME YOU MADE A REPRESENTATION WITH ANY
FOUNDATION IN SUPPORT OF IT THAT THE DISCLOSURE OF THE NAME OF AN
INDIVIDUAL WOULD EITHER JEOPARDIZE HIM PHYSICALLY OR JEOPARDIZE THE
GOVERNMENT'S PROOF IN THE CASE AND THAT HIS TESTIMONY MIGHT BE ALTERED
OR EFFORT MIGHT BE MADE TO PERSUADE HIM NOT TO TESTIFY, OR SOMETHING
ELSE, I AM PREPARED TO SAY UNDER THOSE CIRCUMSTANCES OF THAT SHOWING WE
DON'T RISK PEOPLE'S LIVES OR THEIR SECURITY, THEIR PHYSICAL WELL-BEING,
AND WE DON'T ENCOURAGE ANY POSSIBLE CIRCUMSTANCES IN WHICH TESTIMONY
CAN BE SUPPRESSED.  THAT IS CONSISTENT, IT SEEMS TO ME, WITH MY GENERAL
PHILOSOPHY THAT YOU SHOULDN'T BE SUPPRESSING THINGS; AND IF THERE IS A
THREAT OF SUPPRESSION THEN I WILL TAKE THE LESSER SUPPRESSION TO
PREVENT THE GREATER." 

EARLIER, AFTER GOVERNMENT COUNSEL SUGGESTED THAT THE DANGER OF
FABRICATED DEFENSES JUSTIFIED A POLICY AGAINST THE DISCLOSURE OF THE
NAMES OF POTENTIAL GOVERNMENT WITNESSES, PETITIONER REPLIED: 

"NOW ANY EVIDENCE OF A FABRICATION, BELIEVE ME, WE WILL DEAL WITH IT.
THE LAWS OF PERJURY - WE HAVE HAD CONVICTIONS FOR PERJURY HERE, AND WE
WILL HAVE THEM AGAIN, I HAVE NO DOUBT, ARISING OUT OF CRIMINAL CASES,
BUT I AM NOT PREPARED TO SAY TO A DEFENDANT THAT YOU MAY NOT HAVE THE
INFORMATION WHICH IT SEEMS TO ME YOU REASONABLY REQUIRE TO PREPARE YOUR
DEFENSE BECAUSE I AM AFRAID YOU OR SOMEBODY HELPING YOU WILL LIE AND WE
WON'T BE ABLE TO DO ANYTHING ABOUT IT." 

UPON FURTHER INQUIRY, THE UNITED STATES ATTORNEY MADE NO SUGGESTION
THAT THERE WAS A PARTICULAR DANGER THAT DISCLOSURE OF THE NAMES SOUGHT
BY REQUEST NUMBER 25 WOULD RESULT IN SUBORNATION OF PERJURY. 

FN12  PETITIONER REMARKED AT ONE STAGE: 

"YOU KNOW, I HAVE GREAT CONCERN THAT IN A CIVIL CASE WE REQUIRE BOTH
SIDES TO SUBMIT THEIR WITNESSES TO MAXIMUM DEPOSITION WHEN ALL THAT IS
INVOLVED IS MONEY.  IN A CRIMINAL CASE, THE GOVERNMENT DOESN'T EVEN
WANT TO DISCLOSE THE NAME OF A PERSON SO THE OTHER SIDE CAN GO OUT AND
INTERVIEW HIM WHEN WHAT IS CONCERNED IS LIFE OR LIBERTY.  TO ME THIS IS
A VERY STRANGE ABERRATION OF THE PROCESSES OF JUSTICE AS BETWEEN CIVIL
AND CRIMINAL CASES.  WHEN ALL THAT IS INVOLVED IS MONEY, WE SAY PUT
YOUR CARDS ON THE TABLE.  WHERE LIFE AND LIBERTY ARE INVOLVED, WE SAY
TO THE PROSECUTION YOU DON'T HAVE TO TELL HIM A THING." 

THE GOVERNMENT SEEKS TO MAKE MUCH OF AN EXCHANGE IN WHICH PETITIONER
REMARKED THAT HE WOULD "GO FURTHER" THAN WHAT THE UNITED STATES
ATTORNEY REFERRED TO AS "THE PROPOSED NEW RULES OF DISCOVERY UNDER THE
CRIMINAL RULES BY THE AMERICAN BAR ASSOCIATION."  THE REFERENCE,
ACCORDING TO THE GOVERNMENT, IS TO THE AMENDMENTS TO THE FEDERAL RULES
OF CRIMINAL PROCEDURE, WHICH WERE PENDING IN THIS COURT AT THE TIME,
AND THE EXCHANGE REVEALS PETITIONER'S DETERMINATION TO REQUIRE BROAD
CRIMINAL DISCOVERY DESPITE THE LIMITATIONS OF THE RULES.  WE CANNOT
ACCEPT THIS ARGUMENT.  IN THE FIRST PLACE, THE COLLOQUY CLEARLY REVEALS
THAT PETITIONER CONSIDERED THE PROPOSED RULES IRRELEVANT TO THE
QUESTION BEFORE HIM.  IN THE SECOND PLACE, PETITIONER MADE IT PLAIN
THAT HE THOUGHT HIS POSITION COULD IN ANY EVENT BE RESTED ON A READING
OF THE PROPOSED RULES: 

"THE COURT:  ...  I WOULD GO FURTHER THAN THEY GO, BUT THEY CERTAINLY
GO A LOT FURTHER THAN YOU - A LOT FURTHER. 

"MR. SCHULTZ (UNITED STATES ATTORNEY):  THEY WOULD NOT REQUIRE THE
ANSWERS TO THESE QUESTIONS. 

"THE COURT:  I DON'T AGREE WITH THAT.  THEY WOULD NOT REQUIRE THE
GIVING OF A LIST OF WITNESSES, AND I DON'T CONCEIVE THAT I AM  ...  ." 

FN13  AFTER HIS INITIAL RULING THAT THE DEFENDANT WAS ENTITLED TO THE
INFORMATION SOUGHT BY REQUEST NUMBER 25 BECAUSE HE NEEDED IT TO PREPARE
HIS DEFENSE ADEQUATELY, PETITIONER CONTINUALLY ASSERTED A WILLINGNESS
TO CONSIDER ANY FACTORS PECULIAR TO THE CASE WHICH MILITATED AGAINST
DISCLOSURE OF THIS INFORMATION AND TO NARROW HIS ORDER IN LIGHT OF ANY
SUCH CONSIDERATIONS.  SEE N. 11, SUPRA.  MOREOVER, ON SEVERAL OCCASIONS
IT WAS PETITIONER WHO SOUGHT TO NARROW THE FOCUS OF THE DISCUSSION TO
THE PARTICULAR INSTANCE BY INSISTING THAT THE UNITED STATES ATTORNEY
RELATE HIS GENERALIZED POLICY OBJECTIONS TO THE FACTS OF THE PARTICULAR
CASE: 

"MR. SCHULTZ:  WE ARE NOT ONLY TALKING ABOUT THIS VERY CASE, YOUR
HONOR. 

"THE COURT:  WELL, I AM TALKING ABOUT THIS CASE.  THAT IS WHAT I AM
RULING ON.  THAT IS WHAT I RULED ON LAST WEEK OR EARLIER THIS WEEK. 
THAT IS WHAT YOU ARE ASKING ME TO RECONSIDER, TO VACATE." 

AND AGAIN: 

"WHY SHOULDN'T THEY HAVE AN OPPORTUNITY TO INTERVIEW THE WITNESSES? 
WHY SHOULD THEY PUT THEM ON COLD AT THE TIME, OR WHY SHOULD I HAVE TO
RECESS THEN WHILE THEY GO AND INTERVIEW THE WITNESSES TO SEE WHAT THEIR
TESTIMONY WOULD BE? 

"I DON'T UNDERSTAND IT, MR. SCHULTZ.  I JUST DON'T UNDERSTAND IN THIS
SITUATION - I CAN UNDERSTAND A LOT OF SITUATION, BUT IN THIS
SITUATION.  WE ARE NOT TALKING ABOUT SOME OTHER CASE, BUT IN THIS CASE,
THIS CASE IN WHICH YOU SAY THAT THERE WERE INCRIMINATING ADMISSIONS
MADE." 

FN14  THE GOVERNMENT ALSO PLACES RELIANCE ON SCHLAGENHAUF V. HOLDER,
379 U.S. 104 (1964), ARGUING THAT IT "REAFFIRMED" LA BUY.  INSOFAR AS
IT DID SO, THE CASE DOES NOT HELP THE GOVERNMENT HERE, SINCE WE HAVE NO
QUARREL WITH LA BUY, WHICH IS SIMPLY INAPPOSITE WHERE THERE IS NO
SHOWING OF A PERSISTENT DISREGARD OF THE FEDERAL RULES.  AND IT CANNOT
BE CONTENDED THAT SCHLAGENHAUF ON ITS FACE SUPPORTS AN INVOCATION OF
MANDAMUS IN THIS CASE.  THE COURT THERE DID NOTE THAT THE VARIOUS
QUESTIONS CONCERNING THE CONSTRUCTION OF RULE 35 WERE NEW AND
SUBSTANTIAL, BUT IT RESTED THE EXISTENCE OF MANDAMUS JURISDICTION
SQUARELY ON THE FACT THAT THERE WAS REAL DOUBT WHETHER THE DISTRICT
COURT HAD ANY POWER AT ALL TO ORDER A DEFENDANT TO SUBMIT TO A PHYSICAL
EXAMINATION. 

FN15  PETITIONER STATED THAT: 

"IT IS NO SECRET THAT THE GOVERNMENT IS DISTURBED THAT I AM MAKING
AVAILABLE TO DEFENDANTS THE IDENTITY OF PEOPLE WHO ARE ALLEGED TO HAVE
BEEN PRESENT WHEN TRANSACTIONS TOOK PLACE, WHICH THE GOVERNMENT
CONTENDS ARE ILLEGAL  ...  . 

"  ...  I HAVE NEVER REQUIRED THEM TO DISCLOSE THEIR EVIDENCE, BUT I
HAVE REQUIRED THEM TO IDENTIFY THE PEOPLE WITH WHOM THE DEFENDANT IS
SUPPOSED TO HAVE PARTICIPATED IN AN ILLEGAL ACT BUT WHO WERE PRESENT." 

WE NOTE MERELY THAT PETITIONER WAS CAREFUL TO DISTINGUISH HIS
PRACTICE FROM REQUIRING THE GOVERNMENT TO PRODUCE ITS EVIDENCE OR A
LIST OF WITNESSES.  IN ANY EVENT, PETITIONER'S PASSING REMARKS
CONCERNING A RUNNING DISPUTE WITH THE GOVERNMENT ARE INSUFFICIENT TO
SUPPORT AN INVOCATION OF LA BUY, ABSENT SOME EVIDENCE CONCERNING
PETITIONER'S ACTIONS IN OTHER CASES, OR AT THE VERY LEAST SOME
ILLUMINATION OF THIS DIALOGUE FLOWING FROM THE COURT OF APPEALS'
EXPERIENCE WITH PETITIONER'S GENERAL PRACTICE AND ITS READING OF RULE
7(F). 

FN16  ANOTHER PUZZLING ASPECT OF THE ACTION OF THE COURT OF APPEALS
IS WHAT IT DID NOT DO. REQUESTS 7, 14, 19, 21, 23, 25, 27 AND 29 CALLED
FOR THE DISCLOSURE OF THE NAMES OF PERSONS WHO MIGHT CONCEIVABLY BE
CALLED AS WITNESSES BY THE GOVERNMENT AT HORWITZ' TRIAL.  THE
GOVERNMENT OBJECTED TO BEING REQUIRED TO ANSWER REQUESTS 7, 14, 25, AND
29.  ULTIMATELY PETITIONER EXCUSED THE GOVERNMENT FROM ANSWERING
REQUEST NUMBER 29, WHICH WAS VERY BROADLY CAST AND DID IN EFFECT CALL
FOR A LIST OF POTENTIAL WITNESSES.  THE GOVERNMENT FOR ITS PART
ANSWERED ALL THE REMAINING REQUESTS, EXCEPT NUMBER 25.  THE MANDAMUS
PETITION ONLY PLACED THE LATTER IN ISSUE, BUT NOTHING IN THE RECORD
INDICATES WHY EITHER THE GOVERNMENT OR THE COURT OF APPEALS MIGHT HAVE
THOUGHT THAT IT WAS WITHIN PETITIONER'S JUDICIAL DISCRETION UNDER RULE
7(F) TO ORDER THE DISCLOSURE OF THE NAMES SOUGHT BY THE OTHER REQUESTS,
BUT NOT THE REVELATION OF THOSE SOUGHT BY REQUEST NUMBER 25. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN THE COURT'S JUDGMENT TO VACATE AND AGREE SUBSTANTIALLY
WITH ITS OPINION, BUT WOULD LIKE TO ADD A FEW WORDS, WHICH I DO NOT
UNDERSTAND TO BE IN CONFLICT WITH WHAT THE COURT SAYS, CONCERNING THE
WRIT OF MANDAMUS.  I AGREE THAT MANDAMUS IS AN EXTRAORDINARY REMEDY
WHICH SHOULD NOT BE ISSUED EXCEPT IN EXTRAORDINARY CIRCUMSTANCES.  AND
I ALSO REALIZE THAT SOMETIMES THE GRANTING OF MANDAMUS MAY BRING ABOUT
THE REVIEW OF A CASE AS WOULD AN APPEAL.  YET THIS DOES NOT DEPRIVE A
COURT OF ITS POWER TO ISSUE THE WRIT.  WHERE THERE ARE EXTRAORDINARY
CIRCUMSTANCES, MANDAMUS MAY BE USED TO REVIEW AN INTERLOCUTORY ORDER
WHICH IS BY NO MEANS "FINAL" AND THUS APPEALABLE UNDER FEDERAL
STATUTES.  FINALITY, THEN, WHILE RELEVANT TO THE RIGHT OF APPEAL, IS
NOT DETERMINATIVE OF THE QUESTION WHEN TO ISSUE MANDAMUS.  RATHER THAN
HINGING ON THIS ABSTRUSE AND INFINITELY UNCERTAIN TERM, THE ISSUANCE OF
THE WRIT OF MANDAMUS IS PROPER WHERE A COURT FINDS EXCEPTIONAL
CIRCUMSTANCES TO SUPPORT SUCH AN ORDER.  IN THE PRESENT CASE IT IS
CONCEIVABLE THAT THERE ARE VALID REASONS WHY THE GOVERNMENT SHOULD NOT
BE FORCED TO TURN OVER THE REQUESTED NAMES AND THAT COMPLIANCE WITH THE
ORDER WOULD INFLICT IRREPARABLE DAMAGE ON ITS CONDUCT OF THE CASE.  THE
TROUBLE HERE, AS I SEE IT, IS THAT NEITHER OF THE COURTS BELOW GAVE
PROPER CONSIDERATION TO THE POSSIBLE EXISTENCE OF EXCEPTIONAL FACTS
WHICH MIGHT JUSTIFY THE GOVERNMENT'S REFUSAL TO DISCLOSE THE NAMES. 
HAVING NO DOUBT AS TO THE APPROPRIATENESS OF MANDAMUS, IF THE
CIRCUMSTANCES EXIST TO JUSTIFY IT, I WOULD VACATE THE JUDGMENT BELOW
AND REMAND THE CASE TO THE COURT OF APPEALS FOR FURTHER DELIBERATION ON
WHETHER THERE ARE SPECIAL CIRCUMSTANCES CALLING FOR THE ISSUANCE OF
MANDAMUS. 
..END :



BURGETT V. TEXAS 389 U.S. 109 


NO. 53.  ARGUED OCTOBER 18, 1967.  - DECIDED NOVEMBER 13, 1967.  - 397
S.W.2D 79, REVERSED. 


PETITIONER WAS CHARGED IN A FIVE-COUNT INDICTMENT, WHICH WAS READ TO
THE JURY AT THE BEGINNING OF THE TRIAL, AND CONVICTED OF "ASSAULT WITH
MALICE AFORETHOUGHT WITH INTENT TO MURDER; REPETITION OF OFFENSE."  THE
FIRST COUNT CHARGED THE ASSAULT.  THE OTHER COUNTS, PURSUANT TO THE
TEXAS RECIDIVIST STATUTES, ALLEGED PRIOR FELONY CONVICTIONS, ONE IN
TEXAS FOR BURGLARY, AND THREE IN TENNESSEE FOR FORGERY, WHICH, IF
PROVED, WOULD HAVE MADE PETITIONER SUBJECT TO LIFE IMPRISONMENT UPON
HIS BEING CONVICTED UNDER COUNT ONE.  IN THE JURY'S PRESENCE THE
PROSECUTION OFFERED EVIDENCE OF TWO DIFFERING CERTIFIED COPIES OF ONE
OF THE TENNESSEE CONVICTIONS AND A CERTIFIED COPY OF THE INDICTMENT IN
THE PRIOR TEXAS PROSECUTION.  THE COURT ADMITTED THE TEXAS CONVICTION
INTO EVIDENCE BUT LATER SUSTAINED PETITIONER'S OBJECTION AS TO THAT
JUDGMENT AND STRUCK IT FROM THE EVIDENCE.  THE COURT UPHELD
PETITIONER'S OBJECTION TO THE FIRST VERSION OF THE TENNESSEE CONVICTION
ON THE GROUND THAT THE JUDGMENT SHOWED ON ITS FACE THAT PETITIONER WAS
NOT REPRESENTED BY COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.  IT OVERRULED HIS
OBJECTION ON THE SAME GROUND TO THE SECOND VERSION, WHICH STATED THAT
PETITIONER HAD APPEARED "IN PROPER PERSON" BUT DID NOT ADD (AS DID THE
FIRST VERSION) "WITHOUT COUNSEL."  THERE WAS NO EXPLANATION OF THE
DISCREPANCY BETWEEN THE TWO VERSIONS.  REFERENCE WAS ALSO MADE IN THE
SECOND VERSION TO THE JURY'S HAVING RETIRED TO CONSIDER ITS VERDICT
AFTER "ARGUMENT OF COUNSEL," BUT WITH NO INDICATION WHETHER THE WORD
WAS BEING USED IN THE SINGULAR OR PLURAL.  AFTER TESTIMONY WAS HEARD ON
THE SUBSTANTIVE OFFENSE, THE COURT INSTRUCTED THE JURY NOT TO CONSIDER
THE PRIOR OFFENSES FOR ANY PURPOSE WHATSOEVER IN ARRIVING AT ITS
VERDICT.  PETITIONER WAS CONVICTED AND APPEALED, URGING ERROR IN THE
READING TO THE JURY OF THE INDICTMENT CONTAINING THE PRIOR FELONY
CONVICTION COUNTS AND IN THE FAILURE TO SUSTAIN HIS OBJECTION TO THE
ADMISSION INTO EVIDENCE OF THE SECOND VERSION OF THE TENNESSEE
CONVICTION.  THE APPELLATE COURT UPHELD THE CONVICTION, HOLDING THAT
THERE HAD BEEN NO ERROR SINCE THE TRIAL COURT HAD INSTRUCTED THE JURY
TO DISREGARD THE PRIOR OFFENSES AND PETITIONER HAD NOT RECEIVED THE
ENHANCED PUNISHMENT PRESCRIBED BY THE RECIDIVIST STATUTES.  HELD: 

1.  THE CERTIFIED RECORDS OF THE TENNESSEE CONVICTION RAISE A
PRESUMPTION THAT PETITIONER WAS DENIED HIS RIGHT TO COUNSEL IN THAT
PROCEEDING AND THAT THE CONVICTION WAS VOID UNDER GIDEON V. WAINWRIGHT,
372 U.S. 335.  TO PERMIT A CONVICTION OBTAINED IN VIOLATION OF GIDEON
TO BE USED EITHER TO SUPPORT GUILT OR ENHANCE PUNISHMENT FOR ANOTHER
OFFENSE WOULD ERODE THE PRINCIPLE OF THAT CASE AND ALLOW AN
UNCONSTITUTIONAL PROCEDURE TO INJURE A DEFENDANT TWICE.  PP. 114-115 

2.  THE ADMISSION INTO EVIDENCE OF A CONSTITUTIONALLY INVALID PRIOR
CONVICTION IS INHERENTLY PREJUDICIAL AND IT CANNOT BE SAID THAT
INSTRUCTIONS TO DISREGARD SUCH ERROR MADE IT "HARMLESS BEYOND A
REASONABLE DOUBT," WITHIN THE MEANING OF CHAPMAN V. CALIFORNIA, 386
U.S. 18.  SPENCER V. TEXAS, 385 U.S. 554, DISTINGUISHED.  PP. 115-116. 

BURGETT V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF "ASSAULT WITH MALICE AFORETHOUGHT WITH
INTENT TO MURDER; REPETITION OF OFFENSE."  THE JURY FIXED THE
PUNISHMENT AT 10 YEARS IN THE TEXAS STATE PENITENTIARY.  (FN1)  ON
APPEAL, THE TEXAS COURT OF CRIMINAL APPEALS AFFIRMED PETITIONER'S
CONVICTION.  (FN2)  WE GRANTED CERTIORARI, 386 U.S. 931. 

PETITIONER WAS CHARGED IN A FIVE-COUNT INDICTMENT.  IN THE FIRST
COUNT THE STATE ALLEGED THAT HE HAD CUT ONE BRADLEY WITH A KNIFE AND
HAD STABBED AT BRADLEY'S THROAT WITH INTENT TO KILL.  PURSUANT TO THE
TEXAS RECIDIVIST STATUTES,  (FN3)  THE REMAINING COUNTS OF THE
INDICTMENT CONSISTED OF ALLEGATIONS THAT PETITIONER HAD INCURRED FOUR
PREVIOUS FELONY CONVICTIONS:  A TEXAS CONVICTION FOR BURGLARY, AND
THREE TENNESSEE CONVICTIONS FOR FORGERY.  IF THESE ALLEGATIONS WERE
FOUND TO BE TRUE, PETITIONER WOULD BE SUBJECT TO A TERM OF LIFE
IMPRISONMENT UPON CONVICTION OF THE OFFENSE CHARGED IN COUNT ONE. 
(FN4) 

PETITIONER'S COUNSEL FILED A PRETRIAL MOTION TO QUASH THE FOUR COUNTS
OF THE INDICTMENT REFERRING TO THE PRIOR CONVICTIONS FOR FAILURE TO
APPRISE THE DEFENSE OF WHAT THE STATE WOULD ATTEMPT TO PROVE.  (FN5)
THE RECORD IS SILENT AS TO THE COURT'S ACTION ON THIS MOTION.  BUT WHEN
THE INDICTMENT WAS READ TO THE JURY AT THE BEGINNING OF THE TRIAL,
BEFORE ANY EVIDENCE WAS INTRODUCED, THE FOUR COUNTS RELATING TO THE
PRIOR CONVICTIONS WERE INCLUDED. 

DURING THE COURSE OF THE TRIAL, WHILE THE JURY WAS PRESENT, THE STATE
OFFERED INTO EVIDENCE A CERTIFIED COPY OF ONE OF THE TENNESSEE
CONVICTIONS.  THE CONVICTION READ IN PART, "CAME THE ASSISTANT ATTORNEY
GENERAL FOR THE STATE AND THE DEFENDANT IN PROPER PERSON AND WITHOUT
COUNSEL."  PETITIONER'S COUNSEL OBJECTED TO THE INTRODUCTION OF THE
RECORD ON THE GROUND THAT THE JUDGMENT ON ITS FACE SHOWED THAT
PETITIONER WAS NOT REPRESENTED BY COUNSEL IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  THERE WAS NO INDICATION IN THE RECORD THAT
COUNSEL HAD BEEN WAIVED.  THE COURT STATED THAT IT WOULD RESERVE RULING
ON THE OBJECTION, APPARENTLY TO GIVE THE STATE AN OPPORTUNITY TO OFFER
ANY OF THE OTHER CONVICTIONS INTO EVIDENCE.  THE STATE THEN OFFERED A
SECOND VERSION OF THE SAME TENNESSEE CONVICTION WHICH STATED THAT
PETITIONER HAD APPEARED "IN PROPER PERSON" BUT DID NOT CONTAIN THE
ADDITIONAL WORDS "WITHOUT COUNSEL."  THIS SECOND VERSION ALSO STATED
THAT "AFTER SAID JURY HAD HEARD THE EVIDENCE, ARGUMENT OF COUNSEL, AND
THE CHARGE OF THE COURT, THEY RETIRED TO CONSIDER OF THEIR VERDICT." 
IT IS NOT CLEAR, HOWEVER, WHETHER "COUNSEL" WAS BEING USED IN THE
SINGULAR OR PLURAL, AND IN ANY EVENT NO EXPLANATION WAS OFFERED FOR THE
DISCREPANCY BETWEEN THE TWO RECORDS.  PETITIONER'S COUNSEL OBJECTED TO
THIS SECOND VERSION ON THE SAME GROUND.  THE COURT AGAIN RESERVED ITS
RULING. 

THE STATE THEN OFFERED INTO EVIDENCE A CERTIFIED COPY OF THE
INDICTMENT IN THE PRIOR TEXAS CASE.  PETITIONER'S COUNSEL INDICATED HE
HAD NO OBJECTION, AND THAT RECORD WAS RECEIVED INTO EVIDENCE. 
THEREAFTER, TESTIMONY WAS OFFERED CONCERNING THE JUDGMENT AND SENTENCE
IN THE PRIOR TEXAS CASE.  AFTER SOME TESTIMONY HAD BEEN GIVEN, THE JURY
WAS EXCUSED AND THE HEARING CONTINUED OUT OF ITS PRESENCE.  AT THE
CONCLUSION OF THE HEARING, PETITIONER'S ATTORNEY OBJECTED THAT THE
TEXAS JUDGMENT WAS VOID ON ITS FACE UNDER STATE LAW.  THE COURT
SUSTAINED THAT OBJECTION AND THE RECORD OF THE TEXAS CONVICTION WAS
STRICKEN FROM EVIDENCE.  AT THE SAME TIME, THE COURT SUSTAINED
PETITIONER'S OBJECTION TO THE FIRST VERSION OF THE TENNESSEE
CONVICTION; BUT OVERRULED THE OBJECTION TO THE SECOND VERSION OF THE
SAME CONVICTION.  THE JURY WAS THEN RECALLED AND TESTIMONY WAS HEARD ON
THE SUBSTANTIVE OFFENSE CHARGED.  THE NEXT REFERENCE TO THE PRIOR
CONVICTIONS WAS WHEN THE COURT INSTRUCTED THE JURY NOT TO CONSIDER THE
PRIOR OFFENSES (FN6) FOR ANY PURPOSE WHATSOEVER IN ARRIVING AT THE
VERDICT. 

PETITIONER'S MOTION FOR A NEW TRIAL WAS DENIED.  IN THE COURT OF
CRIMINAL APPEALS, PETITIONER ARGUED, INTER ALIA, THAT THE COURT ERRED
IN PERMITTING COUNTS TWO THROUGH FIVE OF THE INDICTMENT TO BE READ TO
THE JURY AT THE BEGINNING OF THE TRIAL, AND IN FAILING TO SUSTAIN
PETITIONER'S OBJECTION TO THE ADMISSION INTO EVIDENCE OF THE SECOND
VERSION OF THE TENNESSEE CONVICTION.  THE COURT OF CRIMINAL APPEALS
HELD THAT SINCE THE INSTRUCTION TO DISREGARD THE PRIOR OFFENSES HAD
BEEN GIVEN, NO ERROR WAS PRESENTED. 

WE DO NOT SIT AS A COURT OF CRIMINAL APPEALS TO REVIEW STATE CASES. 
THE STATES ARE FREE TO PROVIDE SUCH PROCEDURES AS THEY CHOOSE,
INCLUDING RULES OF EVIDENCE, PROVIDED THAT NONE OF THEM INFRINGES A
GUARANTEE IN THE FEDERAL CONSTITUTION.  THE RECENT RIGHT-TO-COUNSEL
CASES, STARTING WITH GIDEON V. WAINWRIGHT, 372 U.S. 335, ARE
ILLUSTRATIVE OF THE LIMITATIONS WHICH THE CONSTITUTION PLACES ON STATE
CRIMINAL PROCEDURES.  THOSE LIMITATIONS SOMETIMES TOUCH RULES OF
EVIDENCE. 

THE EXCLUSION OF COERCED CONFESSIONS IS ONE EXAMPLE.  CHAMBERS V.
FLORIDA, 309 U.S. 227. 

THE EXCLUSION OF EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AND
FOURTEENTH AMENDMENTS IS ANOTHER.  MAPP V. OHIO, 367 U.S. 643. 

STILL ANOTHER IS ILLUSTRATED BY POINTER V. TEXAS, 380 U.S. 400.  IN
THAT CASE WE HELD THAT A TRANSCRIPT OF A PRELIMINARY HEARING HAD TO BE
EXCLUDED FROM A STATE CRIMINAL TRIAL BECAUSE THE DEFENDANT HAD NO
LAWYER AT THAT HEARING, AND DID NOT, THEREFORE, HAVE THE OPPORTUNITY TO
CROSS-EXAMINE THE PRINCIPAL WITNESS AGAINST HIM WHO SINCE THAT TIME HAD
LEFT THE STATE.  THE EXCLUSIONARY RULE THAT WE FASHIONED WAS DESIGNED
TO PROTECT THE PRIVILEGE OF CONFRONTATION GUARANTEED BY THE SIXTH
AMENDMENT AND MADE APPLICABLE TO THE STATES BY THE FOURTEENTH. 

THE SAME RESULT MUST FOLLOW HERE.  GIDEON V. WAINWRIGHT ESTABLISHED
THE RULE THAT THE RIGHT TO COUNSEL GUARANTEED BY THE SIXTH AMENDMENT
WAS APPLICABLE TO THE STATES BY VIRTUE OF THE FOURTEENTH, MAKING IT
UNCONSTITUTIONAL TO TRY A PERSON FOR A FELONY IN A STATE COURT UNLESS
HE HAD A LAWYER OR HAD VALIDLY WAIVED ONE.  AND THAT RULING WAS NOT
LIMITED TO PROSPECTIVE APPLICATIONS.  SEE DOUGHTY V. MAXWELL, 376 U.S.
202; PICKELSIMER V. WAINWRIGHT, 375 U.S. 2.  IN THIS CASE THE CERTIFIED
RECORDS OF THE TENNESSEE CONVICTION ON THEIR FACE RAISE A PRESUMPTION
THAT PETITIONER WAS DENIED HIS RIGHT TO COUNSEL IN THE TENNESSEE
PROCEEDING, AND THEREFORE THAT HIS CONVICTION WAS VOID.  PRESUMING
WAIVER OF COUNSEL FROM A SILENT RECORD IS IMPERMISSIBLE.  CARNLEY V.
COCHRAN, 369 U.S. 506.  TO PERMIT A CONVICTION OBTAINED IN VIOLATION OF
GIDEON V. WAINWRIGHT TO BE USED AGAINST A PERSON EITHER TO SUPPORT
GUILT OR ENHANCE PUNISHMENT FOR ANOTHER OFFENSE (SEE GREER V. BETO, 384
U.S. 269) IS TO ERODE THE PRINCIPLE OF THAT CASE.  WORSE YET, SINCE THE
DEFECT IN THE PRIOR CONVICTION WAS DENIAL OF THE RIGHT TO COUNSEL, THE
ACCUSED IN EFFECT SUFFERS ANEW FROM THE DEPRIVATION OF THAT SIXTH
AMENDMENT RIGHT. 

THE ADMISSION OF A PRIOR CRIMINAL CONVICTION WHICH IS
CONSTITUTIONALLY INFIRM UNDER THE STANDARDS OF GIDEON V. WAINWRIGHT IS
INHERENTLY PREJUDICIAL AND WE ARE UNABLE TO SAY THAT THE INSTRUCTIONS
TO DISREGARD IT  (FN7)  MADE THE CONSTITUTIONAL ERROR "HARMLESS BEYOND
A REASONABLE DOUBT" WITHIN THE MEANING OF CHAPMAN V. CALIFORNIA, 386
U.S. 18. 

OUR DECISION LAST TERM IN SPENCER V. TEXAS, 385 U.S. 554, IS NOT
RELEVANT TO OUR PRESENT PROBLEM.  IN SPENCER THE PRIOR CONVICTIONS WERE
NOT PRESUMPTIVELY VOID.  MOREOVER, THE CONTENTION WAS THAT THE GUILT
PHASE OF THE TRIAL WAS PREJUDICED BY THE INTRODUCTION OF THE EVIDENCE
OF PRIOR CRIMES.  AS THE COURT NOTED, "IN THE PROCEDURES BEFORE US  ...
NO SPECIFIC FEDERAL RIGHT - SUCH AS THAT DEALING WITH CONFESSIONS - IS
INVOLVED, RELIANCE IS PLACED SOLELY ON A GENERAL 'FAIRNESS' APPROACH." 
ID., AT 565.  IN THIS CASE, HOWEVER, PETITIONER'S RIGHT TO COUNSEL, A
"SPECIFIC FEDERAL RIGHT," IS BEING DENIED ANEW.  THIS COURT CANNOT
PERMIT SUCH A RESULT UNLESS GIDEON V. WAINWRIGHT IS TO SUFFER SERIOUS
EROSION.  REVERSED. 

FN1  THE MAXIMUM PENALTY FOR A FIRST CONVICTION OF ASSAULT WITH
INTENT TO MURDER IS 25 YEARS; THE MINIMUM PENALTY IS TWO YEARS.  TEX.
PEN.  CODE, ART. 1160 (SUPP. 1966). 

FN2  BURGETT V. STATE, 397 S.W.2D 79 (1965). 

FN3  THE STATUTES INVOLVED HERE ARE ARTICLES 62 AND 63 OF THE TEX.
PEN.  CODE (1952). 

ARTICLE 62 PROVIDES:  "IF IT BE SHOWN ON THE TRIAL OF A FELONY LESS
THAN CAPITAL THAT THE DEFENDANT HAS BEEN BEFORE CONVICTED OF THE SAME
OFFENSE, OR ONE OF THE SAME NATURE, THE PUNISHMENT ON SUCH SECOND OR
OTHER SUBSEQUENT CONVICTION SHALL BE THE HIGHEST WHICH IS AFFIXED TO
THE COMMISSION OF SUCH OFFENSES IN ORDINARY CASES." 

ARTICLE 63 PROVIDES:  "WHOEVER SHALL HAVE BEEN THREE TIMES CONVICTED
OF A FELONY LESS THAN CAPITAL SHALL ON SUCH THIRD CONVICTION BE
IMPRISONED FOR LIFE IN THE PENITENTIARY." 

FN4  TEX. PEN.  CODE, ART. 63 (1952). 

FN5  IN PETITIONER'S AMENDED MOTION FOR A NEW TRIAL, WHICH WAS DENIED
BY THE COURT, HE EXPLAINED THAT THE PURPOSE OF THE PRETRIAL MOTION WAS
"SO THAT DEFENDANT COULD ESTABLISH THEIR (THE PREVIOUS CONVICTIONS
ALLEGED FOR ENHANCEMENT) ADMISSIBILITY BEFORE THEY WERE READ INTO THE
RECORD IN THE PRESENCE OF THE JURY; SAME READING INTO THE RECORD IN THE
PRESENCE OF THE JURY WAS PREJUDICIAL TO DEFENDANT HEREIN." 

FN6  THE COURT APPARENTLY WITHDREW CONSIDERATION OF THE PRIOR
CONVICTIONS FROM THE JURY SINCE ONLY THE RECORD OF THE ONE PRIOR
TENNESSEE CONVICTION FOR FORGERY HAD BEEN ACCEPTED.  THUS, ARTICLE 63
COULD NOT BE APPLIED TO PETITIONER.  FURTHER, SINCE FORGERY COULD NOT
BE CONSIDERED AS AN OFFENSE OF THE "SAME NATURE" AS ASSAULT WITH INTENT
TO MURDER, ARTICLE 62 WOULD NOT BE APPLICABLE.  SEE N. 3, SUPRA. 

THE STATE APPARENTLY DID NOT ATTEMPT TO INTRODUCE THE RECORDS OF THE
OTHER TWO TENNESSEE CONVICTIONS FOR FORGERY BECAUSE THE INDICTMENT
SHOWED THAT ALL OF THE CONVICTIONS OCCURRED ON THE SAME DATE.  TO
INVOKE THE PROVISIONS OF ARTICLE 63, EACH SUCCEEDING CONVICTION MUST BE
SUBSEQUENT IN TIME TO THE PREVIOUS CONVICTION - BOTH WITH RESPECT TO
COMMISSION OF THE OFFENSE AND TO CONVICTION.  COWAN V. STATE, 172 TEX.
CR. R. 183, 355 S.W.2D 521 (1962). 

FN7  SEE, E.G., BOYD V. UNITED STATES, 142 U.S. 450; UNITED STATES V.
CLARKE, 343 F.2D 90 (C.A. 3D CIR. 1965).  CF. WALDRON V. WALDRON, 156
U.S. 361, 383; THROCKMORTON V. HOLT, 180 U.S. 552; LAWRENCE V. UNITED
STATES, 357 F.2D 434 (C.A. 10TH CIR. 1966); UNITED STATES V.
DEDOMINICIS, 332 F.2D 207 (C.A.2D CIR. 1964). 

WHAT MR. JUSTICE JACKSON SAID IN KRULEWITCH V. UNITED STATES, 336
U.S. 440, 445, 453 (CONCURRING OPINION), IN THE SENSITIVE AREA OF
CONSPIRACY IS EQUALLY APPLICABLE IN THIS SENSITIVE AREA OF REPETITIVE
CRIMES, "THE NAIVE ASSUMPTION THAT PREJUDICIAL EFFECTS CAN BE OVERCOME
BY INSTRUCTIONS TO THE JURY  ...  ALL PRACTICING LAWYERS KNOW TO BE
UNMITIGATED FICTION." 

MR. CHIEF JUSTICE WARREN, CONCURRING. 

I AM IN FULL AGREEMENT WITH THE OPINION OF THE COURT AND THE REASONS
STATED THEREIN FOR REVERSING THE CONVICTION IN THIS CASE.  HOWEVER, IN
VIEW OF THE TERSE DISSENT ENTERED BY MY BROTHER HARLAN, I FEEL
CONSTRAINED TO ADD SOME OBSERVATIONS OF MY OWN. 

THE DISSENT REFERS TO THE COURT'S DECISION IN SPENCER V. TEXAS, 385
U.S. 554, AND THE ENTIRE THRUST OF THE DISSENT IS REMINISCENT OF THAT
DECISION OF LAST TERM WHICH PLACED THIS COURT'S STAMP OF APPROVAL ON
THE TEXAS RECIDIVIST PROCEDURES FROM WHICH THIS CASE EVOLVES.  THE
DISSENT REMINDS US THAT "WE DO NOT SIT AS A COURT OF ERRORS AND APPEALS
IN STATE CASES."  I WOULD NOT DISAGREE WITH THAT STATEMENT AS AN
ABSTRACT PROPOSITION.  BUT WE ARE NOT DEALING WITH ABSTRACTS IN THIS
CASE.  WE ARE DEALING WITH A VERY REAL DENIAL OF A STATE CRIMINAL
DEFENDANT'S RIGHTS AS GUARANTEED BY THE FEDERAL CONSTITUTION.  WE ARE
ALSO TOLD BY THE DISSENT THAT "THIS CASE SHOWS NO PROSECUTORIAL BAD
FAITH OR INTENTIONAL MISCONDUCT."  BUT THIS MISSES THE MARK.  WE ARE
NOT LIMITED IN OUR VIEW OF CONSTITUTIONAL ERRORS IN STATE CRIMINAL
PROCEEDINGS TO THOSE ERRORS WHICH FLOW FROM "PROSECUTORIAL BAD FAITH OR
INTENTIONAL MISCONDUCT."  (FN1)  OUR CONCERN IS WITH THE EFFECT OF
THOSE ERRORS, WHETHER WELL-INTENTIONED OR NOT,  (FN2)  ON THE
CONSTITUTIONALLY PROTECTED RIGHT OF A CRIMINAL DEFENDANT TO A FAIR AND
IMPARTIAL TRIAL. 

THIS CASE IS A CLASSIC EXAMPLE OF HOW A RULE ERODING THE PROCEDURAL
RIGHTS OF A CRIMINAL DEFENDANT ON TRIAL FOR HIS LIFE OR LIBERTY CAN
ASSUME AVALANCHE PROPORTIONS, BURYING BENEATH IT THE INTEGRITY OF THE
FACT-FINDING PROCESS.  IN SPENCER, THE COURT APPROVED A PROCEDURE
WHEREBY A STATE, FOR THE SOLE PURPOSE OF ENHANCING PUNISHMENT, INCLUDES
IN THE INDICTMENT ALLEGATIONS OF PRIOR CRIMES WHICH ARE READ TO THE
JURY AND ENTERS EVIDENCE AT TRIAL OF THOSE PRIOR CRIMES, NO MATTER HOW
UNRELATED THEY MIGHT BE TO THE CHARGE ON WHICH THE DEFENDANT IS BEING
TRIED.  THE RULE ADOPTED IN SPENCER WENT SO FAR AS TO ALLOW THE STATE
TO ENTER EVIDENCE ON THE PRIOR CRIMES EVEN THOUGH A DEFENDANT MIGHT BE
WILLING TO STIPULATE THE EARLIER CONVICTIONS.  IN THIS CASE, THAT HARSH
RULE WAS EXPANDED TO A DEGREE CLOSE TO BARBARISM.    IN ADDITION TO
CHARGING THE PETITIONER WITH THE PRINCIPAL CRIME OF "ASSAULT WITH
MALICE AFORETHOUGHT WITH INTENT TO MURDER," THE INDICTMENT ALLEGED FOUR
PRIOR CONVICTIONS, ONE IN TEXAS AND THREE IN TENNESSEE.  DESPITE THE
EFFORTS OF THE PETITIONER'S ATTORNEY TO QUASH THOSE PORTIONS OF THE
INDICTMENT REFERRING TO THE PRIOR CRIMES, THE ENTIRE INDICTMENT WAS
READ TO THE JURY AT THE START OF THE PETITIONER'S ONE-DAY TRIAL.  THE
PROSECUTOR THEN PROCEEDED TO OFFER EVIDENCE OF THE PRIOR CONVICTIONS. 
THE PETITIONER'S ATTORNEY OBJECTED TO EVIDENCE OF ONE TENNESSEE
CONVICTION BECAUSE A CERTIFIED COPY OF THAT CONVICTION SHOWED THAT THE
PETITIONER HAD NOT BEEN REPRESENTED BY COUNSEL.  THE TRIAL JUDGE
RESERVED HIS RULING ON THE OBJECTION.  THE PROSECUTION NEXT OFFERED A
SECOND VERSION OF THAT SAME TENNESSEE CONVICTION WHICH OMITTED ANY
REFERENCE TO THE ABSENCE OF COUNSEL BUT WHICH DID NOT SHOW A WAIVER OF
COUNSEL.  THE PETITIONER'S ATTORNEY AGAIN OBJECTED AND THE TRIAL JUDGE
AGAIN RESERVED HIS RULING.  THE PROSECUTOR THEN OFFERED INTO EVIDENCE A
CERTIFIED COPY OF THE INDICTMENT IN THE PRIOR TEXAS CASE, AND IT WAS
RECEIVED WITHOUT OBJECTION.  ALL THIS OCCURRED IN THE PRESENCE OF THE
JURY.  HOWEVER, WHEN THE PETITIONER'S ATTORNEY OBJECTED TO EVIDENCE
CONCERNING THE JUDGMENT AND SENTENCE IN THE PRIOR TEXAS CASE, THE JURY
WAS EXCUSED AND TESTIMONY WAS TAKEN OUT OF THE PRESENCE OF THE JURY. 
AT THE CLOSE OF THAT EVIDENCE AND BEFORE THE JURY RETURNED, THE TRIAL
JUDGE RULED THAT THE PRIOR TEXAS CONVICTION WAS VOID UNDER STATE LAW. 
IN ADDITION, THE TRIAL JUDGE SUSTAINED THE OBJECTION TO THE FIRST
VERSION OF THE TENNESSEE CONVICTION BUT OVERRULED THE OBJECTION TO THE
SECOND VERSION OF THE SAME CONVICTION.  (FN3)  THE JURY THEN RETURNED
AND THE TRIAL CONTINUED.  THE NEXT THE JURY WAS TO HEAR OF THE PRIOR
CONVICTIONS WAS A BRIEF INSTRUCTION FROM THE TRIAL JUDGE ADVISING THE
JURORS NOT TO CONSIDER THE PRIOR CRIMES FOR ANY PURPOSE.  THE JURY WAS
NEVER TOLD, HOWEVER, THAT TWO OF THE PRIOR CONVICTIONS CHARGED WERE
VOID AND THAT THE PROSECUTION HAD FAILED TO OFFER TESTIMONY ON THE
VALIDITY OF THE OTHER PRIOR CRIMES CHARGED IN THE INDICTMENT. 

THUS, THE JURY WENT INTO ITS DELIBERATIONS KNOWING THAT THE
PETITIONER HAD BEEN CONVICTED AND IMPRISONED FOR FOUR FELONIES,
ALTHOUGH NOT ONE HAD BEEN PROVEN AT THE TRIAL.  TO EXPECT THAT THE JURY
COULD WIPE THIS FROM ITS MEMORY AND DECIDE THE PETITIONER'S GUILT ONLY
ON THE BASIS OF THE EVIDENCE OF ASSAULT IS TO PLACE TOO MUCH FAITH IN A
JURY'S ABILITY TO DETACH ITSELF FROM REALITY.  THIS IS PARTICULARLY
TRUE SINCE THE TRIAL JUDGE GAVE THE JURORS NOT THE SLIGHTEST CLUE AS TO
WHY MATTERS WHICH CONSUMED SO MUCH TIME AT TRIAL WERE SUDDENLY BEING
REMOVED FROM THEIR CONSIDERATION. 

TO SUGGEST THAT SUCH A PROCEDURE ACCORDS A MAN CHARGED WITH A CRIME
DUE PROCESS IS BEYOND BELIEF.  THIS COURT HAS REVERSED CONVICTIONS IN
OTHER CASES BASED ON UNFAIR INFLUENCES ON JURIES WHICH MUST BE DEEMED
MINOR WHEN COMPARED TO THE PERVASIVE PREJUDICE IN THIS CASE.  NOT LONG
AGO WE RULED THAT A DEFENDANT WAS DENIED DUE PROCESS WHEN A COURT
BAILIFF REMARKED IN THE PRESENCE OF THE JURORS, "OH THAT WICKED FELLOW,
HE IS GUILTY"; AND, "IF THERE IS ANYTHING WRONG IN THE VERDICT THE
SUPREME COURT WILL CORRECT IT."  PARKER V. GLADDEN, 385 U.S. 363.  WE
ALSO REVERSED A MURDER CONVICTION BECAUSE TWO PROSECUTION WITNESSES
WERE DEPUTY SHERIFFS WHO HAD BEEN ASSIGNED TO ACCOMPANY THE JURY WHILE
IT WAS SEQUESTERED.  TURNER V. LOUISIANA, 379 U.S. 466.  (FN4)  IF
THESE TRANSGRESSIONS OFFEND CONSTITUTIONAL STANDARDS OF FAIRNESS, CAN
IT BE DOUBTED THAT THE PETITIONER'S TRIAL WAS STRIPPED OF ALL VESTIGES
OF DUE PROCESS WHEN THE JURORS WERE TOLD OF HIS PRIOR VOID CONVICTIONS
AND THE ERROR WAS NOT EXPLAINED TO THEM? 

THIS CASE IS THE FRIGHTFUL PROGENCY OF SPENCER AND OF THAT DECISION'S
UNJUSTIFIED DEVIATION FROM SETTLED PRINCIPLES OF FAIRNESS.  TODAY WE
HAVE PLACED A NEEDED LIMITATION ON THE SPENCER RULE, BUT NOTHING EXCEPT
AN OUTRIGHT REJECTION WOULD TRULY SERVE THE CAUSE OF JUSTICE. 

FN1  PROSECUTORIAL BAD FAITH, OF COURSE, IS NOT AN IRRELEVANT ELEMENT
IN OUR REVIEW OF STATE CRIMINAL CONVICTIONS.  IT CAN OFTEN MAKE EVEN
MORE INTOLERABLE ERRORS WHICH DEMAND CORRECTION IN THIS COURT.  SEE,
E.G., MILLER V. PATE, 386 U.S. 1; NAPUE V. ILLINOIS, 360 U.S. 264;
MOONEY V. HOLOHAN, 294 U.S. 103. 

FN2  THE DISSENT IS NOT ALONE IN VIEWING THIS CASE SOLELY IN TERMS OF
THE PROSECUTOR'S GOOD OR BAD FAITH.  THE TEXAS COURT OF CRIMINAL
APPEALS DISPOSED OF THE PETITIONER'S OBJECTION TO THE USE OF THE PRIOR
CONVICTIONS AT TRIAL WITH THE CRYPTIC OBSERVATION THAT "THERE IS NO
SHOWING OF BAD FAITH ON THE PART OF THE STATE IN ALLEGING OR ATTEMPTING
TO PROVE THE PRIOR CONVICTIONS."  BOSWELL TELLS US THAT DR. JOHNSON
ONCE OBSERVED THAT "HELL IS PAVED WITH GOOD INTENTIONS."  BOSWELL, LIFE
OF SAMUEL JOHNSON 257 (GREAT BOOKS ED. 1952).  IF THE GOOD-FAITH VIEW
OF THIS CASE SHOULD PREVAIL, THEN SURELY THIS PETITIONER'S ROAD TO
PRISON WOULD BE PAVED WITH THE SAME GOOD INTENTIONS. 

FN3  THE RECORD IS SILENT CONCERNING THE SECOND AND THIRD TENNESSEE
CONVICTIONS ALLEGED IN THE INDICTMENT, AND THE PROSECUTION APPARENTLY
DID NOT OFFER ANY EVIDENCE ON THOSE CONVICTIONS.  HOWEVER, THE JURY HAD
BEEN MADE AWARE OF THOSE PRIOR CRIMES WHEN THE INDICTMENT WAS READ AT
THE START OF THE TRIAL. 

FN4  I DO NOT MEAN TO EXPRESS ANY DISAPPROVAL OF OUR DECISIONS IN
PARKER AND TURNER.  I JOINED BOTH OF THOSE OPINIONS AND I HAVE NO DOUBT
THE PRACTICES CONDEMNED IN THOSE CASES WERE AT ODDS WITH SETTLED
PRINCIPLES OF DUE PROCESS OF LAW.  HOWEVER, IT FOLLOWS A FORTIORI FROM
THOSE DECISIONS THAT WE ARE PRESENTED IN THIS CASE WITH A VIOLATION OF
DUE PROCESS. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

THE RECORD IN THIS CASE SHOWS NO PROSECUTORIAL BAD FAITH OR
INTENTIONAL MISCONDUCT.  TO THE EXTENT THAT THE PROSECUTOR CONTEMPLATED
THE USE OF PRIOR CONVICTIONS IN A ONE-STAGE RECIDIVIST TRIAL, HIS RIGHT
TO DO SO IS OF COURSE ESTABLISHED BY SPENCER V. TEXAS, 385 U.S. 554,
DECIDED ONLY LAST TERM.  THE FACT THAT THE PRIOR CONVICTIONS TURNED OUT
TO BE INADMISSIBLE FOR OTHER REASONS INVOLVES AT THE MOST A LATER
CORRECTED TRIAL ERROR IN THE ADMISSION OF EVIDENCE.  WE DO NOT SIT AS A
COURT OF ERRORS AND APPEALS IN STATE CASES, AND I WOULD AFFIRM THE
JUDGMENT OF THE STATE COURT. 
..END :









UNITED STATES V. RANDS 389 U.S. 121 


NO. 54.  ARGUED OCTOBER 18, 1967.  - DECIDED NOVEMBER 13, 1967.  - 367
F.2D 186, REVERSED AND REMANDED. 


RESPONDENTS OWNED LAND ALONG THE COLUMBIA RIVER IN OREGON WHICH THE
UNITED STATES CONDEMNED IN CONNECTION WITH A LOCK AND DAM PROJECT.  IN
THE CONDEMNATION ACTION THE TRIAL COURT ALLOWED COMPENSATION FOR SAND,
GRAVEL, AND AGRICULTURAL PURPOSES, BUT NOT FOR THE LAND'S SPECIAL VALUE
AS A PORT SITE.  THE COURT OF APPEALS REVERSED, HOLDING THAT EXCLUSION
OF THE PORT-SITE VALUE OF RESPONDENTS' LAND CONTRAVENED THE FIFTH
AMENDMENT AS WELL AS THE POLICY OF THE SUBMERGED LANDS ACT.  HELD: 

1.  THE INTERESTS OF RIPARIAN OWNERS ARE SUBJECT TO THE GOVERNMENT'S
POWER TO CONTROL NAVIGABLE WATERS AND THE PROPER EXERCISE OF THAT POWER
IS NOT COMPENSABLE UNDER THE FIFTH AMENDMENT.  UNITED STATES V. TWIN
CITY POWER CO., 350 U.S. 222 (1956), FOLLOWED.  PP. 122-127. 

2.  THE SUBMERGED LANDS ACT MERELY CONFIRMED AND VESTED IN THE STATES
TITLE TO LANDS BENEATH NAVIGABLE WATERS WITHIN THEIR BOUNDARIES BUT
EXPRESSLY RESERVED TO THE UNITED STATES ITS DOMINANT NAVIGATIONAL
SERVITUDE.  P. 127. 

UNITED STATES V. RANDS ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE COURT IS ASKED TO DECIDE WHETHER THE COMPENSATION
WHICH THE UNITED STATES IS CONSTITUTIONALLY REQUIRED TO PAY WHEN IT
CONDEMNS RIPARIAN LAND INCLUDES THE LAND'S VALUE AS A PORT SITE. 
RESPONDENTS OWNED LAND ALONG THE COLUMBIA RIVER IN THE STATE OF
OREGON.  THEY LEASED THE LAND TO THE STATE WITH AN OPTION TO PURCHASE,
IT APPARENTLY BEING CONTEMPLATED THAT THE STATE WOULD USE THE LAND AS
AN INDUSTRIAL PARK, PART OF WHICH WOULD FUNCTION AS A PORT.  THE OPTION
WAS NEVER EXERCISED, FOR THE LAND WAS TAKEN BY THE UNITED STATES IN
CONNECTION WITH THE JOHN DAY LOCK AND DAM PROJECT, AUTHORIZED BY
CONGRESS AS PART OF A COMPREHENSIVE PLAN FOR THE DEVELOPMENT OF THE
COLUMBIA RIVER.  PURSUANT TO STATUTE  (FN1)  THE UNITED STATES THEN
CONVEYED THE LAND TO THE STATE OF OREGON AT A PRICE CONSIDERABLY LESS
THAN THE OPTION PRICE AT WHICH RESPONDENTS HAD HOPED TO SELL.  IN THE
CONDEMNATION ACTION, THE TRIAL JUDGE DETERMINED THAT THE COMPENSABLE
VALUE OF THE LAND TAKEN WAS LIMITED TO ITS VALUE FOR SAND, GRAVEL, AND
AGRICULTURAL PURPOSES AND THAT ITS SPECIAL VALUE AS A PORT SITE COULD
NOT BE CONSIDERED.  THE ULTIMATE AWARD WAS ABOUT ONE-FIFTH THE CLAIMED
VALUE OF THE LAND IF USED AS A PORT.  THE COURT OF APPEALS FOR THE
NINTH CIRCUIT REVERSED, APPARENTLY HOLDING THAT THE GOVERNMENT HAD
TAKEN FROM RESPONDENTS A COMPENSABLE RIGHT OF ACCESS TO NAVIGABLE
WATERS AND CONCLUDING THAT "PORT SITE VALUE SHOULD BE COMPENSABLE UNDER
THE FIFTH AMENDMENT."  367 F.2D 186, 191 (1966).  WE GRANTED
CERTIORARI, 386 U.S. 989, BECAUSE OF A SEEMING CONFLICT BETWEEN THE
DECISION BELOW AND UNITED STATES V. TWIN CITY POWER CO., 350 U.S. 222
(1956).  WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS BECAUSE THE
PRINCIPLES UNDERLYING TWIN CITY GOVERN THIS CASE AND THE COURT OF
APPEALS ERRED IN FAILING TO FOLLOW THEM. 

THE COMMERCE CLAUSE CONFERS A UNIQUE POSITION UPON THE GOVERNMENT IN
CONNECTION WITH NAVIGABLE WATERS.   "THE POWER TO REGULATE COMMERCE
COMPREHENDS THE CONTROL FOR THAT PURPOSE, AND TO THE EXTENT NECESSARY,
OF ALL THE NAVIGABLE WATERS OF THE UNITED STATES  ...  .  FOR THIS
PURPOSE THEY ARE THE PUBLIC PROPERTY OF THE NATION, AND SUBJECT TO ALL
THE REQUISITE LEGISLATION BY CONGRESS."  GILMAN V. PHILADELPHIA, 3
WALL.  713, 724-725 (1866).  THIS POWER TO REGULATE NAVIGATION CONFERS
UPON THE UNITED STATES A "DOMINANT SERVITUDE," FPC V. NIAGARA MOHAWK
POWER CORP., 347 U.S. 239, 249 (1954), WHICH EXTENDS TO THE ENTIRE
STREAM AND THE STREAM BED BELOW ORDINARY HIGH-WATER MARK.  THE PROPER
EXERCISE OF THIS POWER IS NOT AN INVASION OF ANY PRIVATE PROPERTY
RIGHTS IN THE STREAM OR THE LANDS UNDERLYING IT, FOR THE DAMAGE
SUSTAINED DOES NOT RESULT FROM TAKING PROPERTY FROM RIPARIAN OWNERS
WITHIN THE MEANING OF THE FIFTH AMENDMENT BUT FROM THE LAWFUL EXERCISE
OF A POWER TO WHICH THE INTERESTS OF RIPARIAN OWNERS HAVE ALWAYS BEEN
SUBJECT.  UNITED STATES V. CHICAGO, M., ST. P.&P.R. CO., 312 U.S. 592,
596-597 (1941); GIBSON V. UNITED STATES, 166 U.S. 269, 275-276 (1897). 
THUS, WITHOUT BEING CONSTITUTIONALLY OBLIGATED TO PAY COMPENSATION, THE
UNITED STATES MAY CHANGE THE COURSE OF A NAVIGABLE STREAM, SOUTH
CAROLINA V. GEORGIA, 93 U.S. 4 (1876), OR OTHERWISE IMPAIR OR DESTROY A
RIPARIAN OWNER'S ACCESS TO NAVIGABLE WATERS, GIBSON V. UNITED STATES,
166 U.S. 269 (1897); SCRANTON V. WHEELER, 179 U.S. 141 (1900); UNITED
STATES V. COMMODORE PARK, INC., 324 U.S. 386 (1945), EVEN THOUGH THE
MARKET VALUE OF THE RIPARIAN OWNER'S LAND IS SUBSTANTIALLY DIMINISHED. 

THE NAVIGATIONAL SERVITUDE OF THE UNITED STATES DOES NOT EXTEND
BEYOND THE HIGH-WATER MARK.  CONSEQUENTLY, WHEN FAST LANDS ARE TAKEN BY
THE GOVERNMENT, JUST COMPENSATION MUST BE PAID.  BUT "JUST AS THE
NAVIGATIONAL PRIVILEGE PERMITS THE GOVERNMENT TO REDUCE THE VALUE OF
RIPARIAN LANDS BY DENYING THE RIPARIAN OWNER ACCESS TO THE STREAM
WITHOUT COMPENSATION FOR HIS LOSS,  ...  IT ALSO PERMITS THE GOVERNMENT
TO DISREGARD THE VALUE ARISING FROM THIS SAME FACT OF RIPARIAN LOCATION
IN COMPENSATING THE OWNER WHEN FAST LANDS ARE APPROPRIATED."  UNITED
STATES V. VIRGINIA ELEC.  & POWER CO., 365 U.S. 624, 629 (1961). 
SPECIFICALLY, THE COURT HAS HELD THAT THE GOVERNMENT IS NOT REQUIRED TO
GIVE COMPENSATION FOR "WATER POWER" WHEN IT TAKES THE RIPARIAN LANDS OF
A PRIVATE POWER COMPANY USING THE STREAM TO GENERATE POWER.  UNITED
STATES V. CHANDLER-DUNBAR WATER POWER CO., 229 U.S. 53, 73-74 (1913). 
NOR MUST IT COMPENSATE THE COMPANY FOR THE VALUE OF ITS UPLANDS AS A
POWER PLANT SITE.  ID., AT 76.  SUCH VALUE DOES NOT "INHERE IN THESE
PARCELS AS UPLAND," BUT DEPENDS ON USE OF THE WATER TO WHICH THE
COMPANY HAS NO RIGHT AS AGAINST THE UNITED STATES:  "THE GOVERNMENT HAD
DOMINION OVER THE WATER POWER OF THE RAPIDS AND FALLS AND CANNOT BE
REQUIRED TO PAY ANY HYPOTHETICAL ADDITIONAL VALUE TO A RIPARIAN OWNER
WHO HAD NO RIGHT TO APPROPRIATE THE CURRENT TO HIS OWN COMMERCIAL
USE."  IBID. 

ALL THIS WAS MADE UNMISTAKABLY CLEAR IN UNITED STATES V. TWIN CITY
POWER CO., 350 U.S. 222 (1956).   THE UNITED STATES CONDEMNED A
PROMISING SITE FOR A HYDROELECTRIC POWER PLANT AND WAS HELD TO BE UNDER
NO OBLIGATION TO PAY FOR ANY SPECIAL VALUE WHICH THE FAST LANDS HAD FOR
POWER GENERATING PURPOSES.  THE VALUE OF THE LAND ATTRIBUTABLE TO ITS
LOCATION ON THE STREAM WAS "DUE TO THE FLOW OF THE STREAM; AND IF THE
UNITED STATES WERE REQUIRED TO PAY THE JUDGMENTS BELOW, IT WOULD BE
COMPENSATING THE LANDOWNER FOR THE INCREMENT OF VALUE ADDED TO THE FAST
LANDS IF THE FLOW OF THE STREAM WERE TAKEN INTO ACCOUNT."  350 U.S., AT
226. 

WE ARE ASKED TO DISTINGUISH BETWEEN THE VALUE OF LAND AS A POWER SITE
AND ITS VALUE AS A PORT SITE.  IN THE POWER CASES, THE STREAM IS USED
AS A SOURCE OF POWER TO GENERATE ELECTRICITY.  IN THIS CASE, FOR THE
PROPERTY TO HAVE VALUE AS A PORT, VESSELS MUST BE ABLE TO ARRIVE AND
DEPART BY WATER, MEANWHILE USING THE WATERSIDE FACILITIES OF THE PORT. 
IN BOTH CASES, SPECIAL VALUE ARISES FROM ACCESS TO, AND USE OF,
NAVIGABLE WATERS.  WITH REGARD TO THE CONSTITUTIONAL DUTY TO COMPENSATE
A RIPARIAN OWNER, NO DISTINCTION CAN BE DRAWN.  IT IS IRRELEVANT THAT
THE LICENSING AUTHORITY PRESENTLY BEING EXERCISED OVER HYDROELECTRIC
PROJECTS MAY BE DIFFERENT FROM, OR EVEN MORE STRINGENT THAN, THE
LICENSING OF PORT SITES.  WE ARE DEALING WITH THE CONSTITUTIONAL POWER
OF CONGRESS COMPLETELY TO REGULATE NAVIGABLE STREAMS TO THE TOTAL
EXCLUSION OF PRIVATE POWER COMPANIES OR PORT OWNERS.  AS WAS TRUE IN
TWIN CITY, IF THE OWNER OF THE FAST LANDS CAN DEMAND PORT SITE VALUE AS
PART OF HIS COMPENSATION, "HE GETS THE VALUE OF A RIGHT THAT THE
GOVERNMENT IN THE EXERCISE OF ITS DOMINANT SERVITUDE CAN GRANT OR
WITHHOLD AS IT CHOOSES  ...  .  TO REQUIRE THE UNITED STATES TO PAY FOR
THIS  ...  VALUE WOULD BE TO CREATE PRIVATE CLAIMS IN THE PUBLIC
DOMAIN."  350 U.S., AT 228. 

RESPONDENTS AND THE COURT OF APPEALS ALIKE HAVE FOUND TWIN CITY
INCONSISTENT WITH THE HOLDING IN UNITED STATES V. RIVER ROUGE
IMPROVEMENT CO., 269 U.S. 411 (1926).  IN THAT CASE, THE GOVERNMENT
TOOK WATERFRONT PROPERTY TO WIDEN AND IMPROVE THE NAVIGABLE CHANNEL OF
THE ROUGE RIVER.  BY REASON OF THE IMPROVEMENTS, OTHER PORTIONS OF THE
RIPARIAN OWNER'S PROPERTY BECAME MORE VALUABLE BECAUSE THEY WERE
AFFORDED DIRECT ACCESS TO THE STREAM FOR THE BUILDING OF DOCKS AND
OTHER PURPOSES RELATED TO NAVIGATION.  PURSUANT TO SEC 6 OF THE RIVERS
AND HARBORS ACT OF 1918,  (FN2)  THE COMPENSATION AWARD FOR THE PART OF
THE PROPERTY TAKEN BY THE GOVERNMENT WAS REDUCED BY THE VALUE OF THE
SPECIAL AND DIRECT BENEFITS TO THE REMAINDER OF THE LAND.  THE ARGUMENT
HERE SEEMS TO BE THAT IF THE ENHANCEMENT IN VALUE FLOWING FROM A
RIPARIAN LOCATION IS REAL ENOUGH TO REDUCE THE AWARD FOR ANOTHER PART
OF THE SAME OWNER'S PROPERTY, CONSISTENCY DEMANDS THAT THESE SAME
VALUES BE RECOGNIZED IN THE AWARD WHEN ANY RIPARIAN PROPERTY IS TAKEN
BY THE GOVERNMENT.  THERE IS NO INCONSISTENCY.  TWIN CITY AND ITS
PREDECESSORS DO NOT DENY THAT ACCESS TO NAVIGABLE WATERS MAY ENHANCE
THE MARKET VALUE OF RIPARIAN PROPERTY.  SEE UNITED STATES V. COMMODORE
PARK, INC., 324 U.S., AT 388, 390.  AND, IN RIVER ROGUE, IT WAS
RECOGNIZED THAT STATE LAW MAY GIVE THE RIPARIAN OWNER VALUABLE RIGHTS
OF ACCESS TO NAVIGABLE WATERS GOOD AGAINST OTHER RIPARIAN OWNERS OR
AGAINST THE STATE ITSELF.  269 U.S., AT 418-419.  BUT UNDER TWIN CITY
AND LIKE CASES, THESE RIGHTS AND VALUES ARE NOT ASSERTABLE AGAINST THE
SUPERIOR RIGHTS OF THE UNITED STATES, ARE NOT PROPERTY WITHIN THE
MEANING OF THE FIFTH AMENDMENT, AND NEED NOT BE PAID FOR WHEN
APPROPRIATED BY THE UNITED STATES.  THUS, WHEN ONLY PART OF THE
PROPERTY IS TAKEN AND THE MARKET VALUE OF THE REMAINDER IS ENHANCED BY
REASON OF THE IMPROVEMENT OF NAVIGABLE WATERS, REDUCING THE AWARD BY
THE AMOUNT OF THE INCREASE IN VALUE SIMPLY APPLIES IN ANOTHER CONTEXT
THE PRINCIPLE THAT SPECIAL VALUES ARISING FROM ACCESS TO A NAVIGABLE
STREAM ARE ALLOCABLE TO THE PUBLIC, AND NOT TO PRIVATE INTEREST. 
OTHERWISE THE PRIVATE OWNER WOULD RECEIVE A WINDFALL TO WHICH HE IS NOT
ENTITLED. 

OUR ATTNETION IS ALSO DIRECTED TO MONONGAHELIA NAVIGATION CO. V.
UNITED STATES, 148 U.S. 312 (1893), WHERE IT WAS HELD THAT THE
GOVERNMENT HAD TO PAY THE GOING-CONCERN VALUE OF A TOLL LOCK AND DAM
BUILT AT THE IMPLIED INVITATION OF THE GOVERNMENT, AND TO THE PORTION
OF THE OPINION IN CHANDLER-DUNBAR APPROVING AN AWARD REQUIRING THE
GOVERNMENT TO PAY FOR THE VALUE OF FAST LANDS AS A SITE FOR A CANAL AND
LOCK TO BYPASS THE FALLS, AND RAPIDS OF THE RIVER.  MONONGAHELA IS NOT
IN POINT, HOWEVER, FOR THE COURT HAS SINCE READ IT AS RESTING
"PRIMARILY UPON THE DOCTRINE OF ESTOPPEL ...  ."  OMNIA COMMERCIAL CO.,
INC. V. UNITED STATES, 261 U.S. 502, 513-514 (1923).  THE PORTION OF
CHANDLER-DUNBAR RELIED ON BY RESPONDENTS WAS DULY NOTED AND DEALT WITH
IN TWIN CITY ITSELF, 350 U.S. 222, 226, N. (1956).  THAT ASPECT OF THE
DECISION HAS BEEN CONFINED TO ITS SPECIAL FACTS, AND, IN ANY EVENT, IF
IT IS AT ALL INCONSISTENT WITH TWIN CITY, IT IS ONLY THE LATTER WHICH
SURVIVES. 

FINALLY, RESPONDENTS URGE THAT THE GOVERNMENT'S POSITION SUBVERTS THE
POLICY OF THE SUBMERGED LANDS ACT, (FN3) WHICH CONFIRMED AND VESTED IN
THE STATES TITLE TO THE LANDS BENEATH NAVIGABLE WATERS WITHIN THEIR
BOUNDARIES AND TO NATURAL RESOURCES WITHIN SUCH LANDS AND WATERS,
TOGETHER WITH THE RIGHT AND POWER TO MANAGE, DEVELOP, AND USE SUCH
LANDS AND NATURAL RESOURCES.  HOWEVER, RELIANCE ON THAT ACT IS
MISPLACED, FOR IT EXPRESSLY RECOGNIZED THAT THE UNITED STATES RETAINED
"ALL ITS NAVIGATIONAL SERVITUDE AND RIGHTS IN AND POWERS OF REGULATION
AND CONTROL OF SAID LANDS AND NAVIGABLE WATERS FOR THE CONSTITUTIONAL
PURPOSES OF COMMERCE, NAVIGATION, NATIONAL DEFENSE, AND INTERNATIONAL
AFFAIRS, ALL OF WHICH SHALL BE PARAMOUNT TO, BUT SHALL NOT BE DEEMED TO
INCLUDE, PROPRIETARY RIGHTS OF OWNERSHIP  ...  ."  (FN4)  NOTHING IN
THE ACT WAS TO BE CONSTRUED "AS THE RELEASE OR RELINQUISHMENT OF ANY
RIGHTS OF THE UNITED STATES ARISING UNDER THE CONSTITUTIONAL AUTHORITY
OF CONGRESS TO REGULATE OR IMPROVE NAVIGATION, OR TO PROVIDE FOR FLOOD
CONTROL, OR THE PRODUCTION OF POWER."  (FN5)  THE ACT LEFT
CONGRESSIONAL POWER OVER COMMERCE AND THE DOMINANT NAVIGATIONAL
SERVITUDE OF THE UNITED STATES PRECISELY WHERE IT FOUND THEM. 

FOR THE FOREGOING REASONS, THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CASE REMANDED WITH DIRECTION TO REINSTATE THE JUDGMENT
OF THE DISTRICT COURT.  REVERSED AND REMANDED. 

FN1  74 STAT. 486, 33 U.S.C. SEC 578. 

FN2 40 STAT. 911, 33 U.S.C. SEC. 595. 

FN3  67 STAT. 29, 43 U.S.C. SECS 1301-1343. 

FN4  67 STAT. 32, 43 U.S.C. SEC 1314. 

FN5  67 STAT. 31, 43 U.S.C. SEC. 1311(D). 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






MEMPA V. RHAY 389 U.S. 128 


NO. 16.  ARGUED OCTOBER 11-12, 1967.  - DECIDED NOVEMBER 13, 1967.* -
NO. 16, 68 WASH. 2D 882, 416 P.2D 104; NO. 22, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 22, WALKING V. WASHINGTON STATE BOARD OF PRISON
TERMS AND PAROLES, ALSO ON CERTIORARI TO THE SAME COURT. 


PETITIONER IN NO. 16 PLEADED GUILTY WITH THE ADVICE OF COURT-APPOINTED
COUNSEL TO THE OFFENSE OF "JOYRIDING" AND WAS PLACED ON PROBATION FOR
TWO YEARS.  THE IMPOSITION OF SENTENCE WAS DEFERRED UNDER WASHINGTON
STATE LAW.  ON THE GROUND THAT PETITIONER HAD THEREAFTER BEEN INVOLVED
IN A BURGLARY, THE PROSECUTOR ABOUT FOUR MONTHS LATER MOVED TO HAVE
PETITIONER'S PROBATION REVOKED.  AT THE REVOCATION HEARING PETITIONER
WAS NOT REPRESENTED BY COUNSEL, WAS NOT ASKED ABOUT HIS PREVIOUS COURT
APPOINTED COUNSEL, OR IF HE WANTED COUNSEL.  HE ACKNOWLEDGED HIS
INVOLVEMENT IN THE ALLEGED BURGLARY.   A PROBATION OFFICER TESTIFIED
WITHOUT CROSS-EXAMINATION THAT ACCORDING TO HIS INFORMATION PETITIONER
HAD BEEN INVOLVED IN THE BURGLARY AND HAD PREVIOUSLY DENIED
PARTICIPATION.  THE COURT WITHOUT FURTHER QUESTIONING PETITIONER
THEREUPON REVOKED HIS PROBATION AND IN ACCORDANCE WITH STATE LAW
IMPOSED THE MAXIMUM SENTENCE OF 10 YEARS, BUT STATED THAT IT WOULD
RECOMMEND TO THE PAROLE BOARD THAT HE SERVE ONLY ONE YEAR.  SIX YEARS
LATER PETITIONER SOUGHT A WRIT OF HABEAS CORPUS IN THE STATE SUPREME
COURT CLAIMING THAT HE HAD BEEN DENIED THE RIGHT TO COUNSEL AT THE
PROCEEDING AT WHICH HIS PROBATION WAS REVOKED AND SENTENCE IMPOSED. 
THE COURT DENIED THE PETITION.  IN NO. 22, PETITIONER WAS CONVICTED OF
SECOND DEGREE BURGLARY FOLLOWING HIS GUILTY PLEA ENTERED WITH THE
ADVICE OF HIS RETAINED COUNSEL, AND WAS PLACED ON PROBATION FOR THREE
YEARS, IMPOSITION OF SENTENCE BEING DEFERRED.  OVER A YEAR LATER HE WAS
ARRESTED FOR FORGERY AND GRAND LARCENY ALLEGEDLY COMMITTED WHILE HE WAS
ON PROBATION.  AT THE EXPIRATION OF A WEEK'S CONTINUANCE OF THE
PROBATION REVOCATION HEARING GRANTED TO ENABLE PETITIONER TO RETAIN
COUNSEL, PETITIONER APPEARED WITHOUT COUNSEL AND INFORMED THE COURT
THAT HE HAD RETAINED AN ATTORNEY WHO WAS SUPPOSED TO BE PRESENT.  AFTER
A SHORT WAIT THE COURT PROCEEDED WITH THE HEARING IN THE ABSENCE OF
COUNSEL AND WITHOUT OFFERING TO APPOINT COUNSEL.  THE PROBATION OFFICER
GAVE HEARSAY TESTIMONY THAT PETITIONER HAD COMMITTED THE ACTS OF
FORGERY AND GRAND LARCENY, WHEREUPON THE COURT REVOKED PROBATION AND
IMPOSED THE MAXIMUM SENTENCE OF 15 YEARS ON THE PREVIOUS SECOND DEGREE
BURGLARY CONVICTION.  A YEAR LATER PETITIONER FILED A HABEAS CORPUS
PETITION WITH THE STATE SUPREME COURT, CLAIMING A DENIAL OF THE RIGHT
TO COUNSEL AT THE COMBINED PROBATION REVOCATION AND SENTENCING
PROCEEDING.  THE COURT DENIED THE PETITION.  HELD:  THE SIXTH AMENDMENT
AS APPLIED THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES THAT COUNSEL BE AFFORDED TO A FELONY DEFENDANT IN A POST-TRIAL
PROCEEDING FOR REVOCATION OF HIS PROBATION AND IMPOSITION OF DEFERRED
SENTENCING.  PP. 133-137. 

(A)  THE TIME OF SENTENCING IS A CRITICAL STAGE IN A CRIMINAL CASE
AND COUNSEL'S PRESENCE IS NECESSARY TO ENSURE THAT THE CONVICTION AND
SENTENCE ARE NOT BASED ON MISINFORMATION OR A MISREADING OF COURT
RECORDS.  TOWNSEND V. BURKE, 334 U.S. 736 (1948); GIDEON V. WAINWRIGHT,
372 U.S. 335 (1963).  PP. 133-134. 

(B)  THOUGH IN THE STATE OF WASHINGTON THE TRIAL JUDGE IS REQUIRED AT
THE TIME OF SENTENCING TO IMPOSE THE MAXIMUM TERM, THE ACTUAL LENGTH OF
THAT TERM TO BE SERVED BEING DETERMINED BY THE PAROLE BOARD, THE JUDGE
AND PROSECUTOR ARE REQUIRED TO RECOMMEND THE LENGTH OF TIME TO BE
SERVED AND TO SUPPLY THE BOARD WITH INFORMATION ABOUT THE CRIME AND THE
DEFENDANT; AND THE MARSHALING OF FACTS IN CONNECTION WITH THESE
FUNCTIONS REQUIRES THE AID OF COUNSEL.  P. 135. 

(C)  THE SERVICES OF COUNSEL AT THE DEFERRED SENTENCING STAGE ARE
NECESSARY TO ENSURE THAT CERTAIN RIGHTS, SUCH AS THAT OF APPEAL, ARE
SEASONABLY ASSERTED AND TO AFFORD THE DEFENDANT THE SUBSTANTIAL
ASSISTANCE WHICH MAY BE NECESSARY IN VARIOUS OTHER SITUATIONS AT THAT
STAGE.  PP. 135-136. 

MEMPA V. RHAY, PENITENTIARY SUPERINTENDENT. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT. 

THESE CONSOLIDATED CASES RAISE THE QUESTION OF THE EXTENT OF THE
RIGHT TO COUNSEL AT THE TIME OF SENTENCING WHERE THE SENTENCING HAS
BEEN DEFERRED SUBJECT TO PROBATION. 

PETITIONER JERRY DOUGLAS MEMPA WAS CONVICTED IN THE SPOKANE COUNTY
SUPERIOR COURT ON JUNE 17, 1959, OF THE OFFENSE OF "JOYRIDING," WASH.
REV. CODE SEC 9.54.020.  THIS CONVICTION WAS BASED ON HIS PLEA OF
GUILTY ENTERED WITH THE ADVICE OF COURT-APPOINTED COUNSEL.  HE WAS THEN
PLACED ON PROBATION FOR TWO YEARS ON THE CONDITION, INTER ALIA, THAT HE
FIRST SPEND 30 DAYS IN THE COUNTY JAIL, AND THE IMPOSITION OF SENTENCE
WAS DEFERRED PURSUANT TO WASH. REV. CODE SECS 9.95.200, 9.95.210. 
(FN1) 

ABOUT FOUR MONTHS LATER THE SPOKANE COUNTY PROSECUTING ATTORNEY MOVED
TO HAVE PETITIONER'S PROBATION REVOKED ON THE GROUND THAT HE HAD BEEN
INVOLVED IN A BURGLARY ON SEPTEMBER 15, 1959.  A HEARING WAS HELD IN
THE SPOKANE COUNTY SUPERIOR COURT ON OCTOBER 23, 1959.  PETITIONER
MEMPA, WHO WAS 17 YEARS OLD AT THE TIME, WAS ACCOMPANIED TO THE HEARING
BY HIS STEPFATHER.  HE WAS NOT REPRESENTED BY COUNSEL AND WAS NOT ASKED
WHETHER HE WISHED TO HAVE COUNSEL APPOINTED FOR HIM.  NOR WAS ANY
INQUIRY MADE CONCERNING THE APPOINTED COUNSEL WHO HAD PREVIOUSLY
REPRESENTED HIM. 

AT THE HEARING MEMPA WAS ASKED IF IT WAS TRUE THAT HE HAD BEEN
INVOLVED IN THE ALLEGED BURGLARY AND HE ANSWERED IN THE AFFIRMATIVE.  A
PROBATION OFFICER TESTIFIED WITHOUT CROSS-EXAMINATION THAT ACCORDING TO
HIS INFORMATION PETITIONER HAD BEEN INVOLVED IN THE BURGLARY AND HAD
PREVIOUSLY DENIED PARTICIPATION IN IT.  WITHOUT ASKING PETITIONER IF HE
HAD ANYTHING TO SAY OR ANY EVIDENCE TO SUPPLY, THE COURT IMMEDIATELY
ENTERED AN ORDER REVOKING PETITIONER'S PROBATION AND THEN SENTENCED HIM
TO 10 YEARS IN THE PENITENTIARY, BUT STATED THAT IT WOULD RECOMMEND TO
THE PAROLE BOARD THAT MEMPA BE REQUIRED TO SERVE ONLY A YEAR.  (FN2) 

IN 1965 MEMPA FILED A PRO SE PETITION FOR A WRIT OF HABEAS CORPUS
WITH THE WASHINGTON SUPREME COURT, CLAIMING THAT HE HAD BEEN DEPRIVED
OF HIS RIGHT TO COUNSEL AT THE PROCEEDING AT WHICH HIS PROBATION WAS
REVOKED AND SENTENCE IMPOSED.  THE WASHINGTON SUPREME COURT DENIED THE
PETITION ON JUNE 23, 1966, BY A VOTE OF SIX TO THREE.  MEMPA V. RHAY,
68 WASH. 2D 882, 416 P.2D 104.  WE GRANTED CERTIORARI TO CONSIDER THE
QUESTIONS RAISED.  386 U.S. 907 (1967). 

PETITIONER WILLIAM EARL WALKLING WAS CONVICTED IN THE THURSTON COUNTY
SUPERIOR COURT ON OCTOBER 29, 1962, OF BURGLARY IN THE SECOND DEGREE ON
THE BASIS OF HIS PLEA OF GUILTY ENTERED WITH THE ADVICE OF HIS RETAINED
COUNSEL.  HE WAS PLACED ON PROBATION FOR THREE YEARS AND THE IMPOSITION
OF SENTENCE WAS DEFERRED.  AS CONDITIONS OF HIS PROBATION HE WAS
REQUIRED TO SERVE 90 DAYS IN THE COUNTY JAIL AND MAKE RESTITUTION.  ON
MAY 2, 1963, A BENCH WARRANT FOR HIS ARREST WAS ISSUED BASED ON A
REPORT THAT HE HAD VIOLATED THE TERMS OF HIS PROBATION AND HAD LEFT THE
STATE. 

ON FEBRUARY 24, 1964, WALKLING WAS ARRESTED AND CHARGED WITH FORGERY
AND GRAND LARCENY.  AFTER BEING TRANSFERRED BACK TO THURSTON COUNTY HE
WAS BROUGHT BEFORE THE COURT ON MAY 12, 1964, FOR A HEARING ON THE
PETITION BY THE PROSECUTING ATTORNEY TO REVOKE HIS PROBATION. 
PETITIONER THEN REQUESTED A CONTINUANCE TO ENABLE HIM TO RETAIN COUNSEL
AND WAS GRANTED A WEEK.  ON MAY 18, 1964, THE HEARING WAS CALLED AND
WALKLING APPEARED WITHOUT A LAWYER.  HE INFORMED THE COURT THAT HE HAD
RETAINED AN ATTORNEY WHO WAS SUPPOSED TO BE PRESENT.  AFTER WAITING FOR
15 MINUTES THE COURT WENT AHEAD WITH THE HEARING IN THE ABSENCE OF
PETITIONER'S COUNSEL.  HE WAS NOT OFFERED APPOINTED COUNSEL AND WOULD
NOT HAVE HAD COUNSEL APPOINTED FOR HIM HAD HE REQUESTED IT.  WHETHER HE
MADE SUCH A REQUEST DOES NOT APPEAR FROM THE RECORD. 

AT THE HEARING A PROBATION OFFICER PRESENTED HEARSAY TESTIMONY TO THE
EFFECT THAT PETITIONER HAD COMMITTED THE ACTS ALLEGED IN THE 14
SEPARATE COUNTS OF FORGERY AND 14 SEPARATE COUNTS OF GRAND LARCENY THAT
HAD BEEN CHARGED AGAINST PETITIONER PREVIOUSLY AT THE TIME OF HIS
ARREST.  THE COURT THEREUPON REVOKED PROBATION AND IMPOSED THE MAXIMUM
SENTENCE OF 15 YEARS ON WALKLING ON HIS PRIOR SECOND DEGREE BURGLARY
CONVICTION.  BECAUSE OF THE FAILURE OF THE STATE TO KEEP A RECORD OF
THE PROCEEDING, NOTHING IS KNOWN AS TO WHETHER WALKLING WAS ADVISED OF
HIS RIGHT TO APPEAL.  HE DID NOT, HOWEVER, TAKE AN APPEAL. 

IN MAY 1966 WALKLING FILED A HABEAS CORPUS PETITION WITH THE
WASHINGTON SUPREME COURT, CLAIMING DENIAL OF HIS RIGHT TO COUNSEL AT
THE COMBINED PROBATION REVOCATION AND SENTENCING PROCEEDING.  THE
PETITION WAS DENIED ON THE AUTHORITY OF THE PRIOR DECISION IN MEMPA V.
RHAY, SUPRA.  WE GRANTED CERTIORARI, 386 U.S. 907 (1967), AND THE CASES
WERE CONSOLIDATED FOR ARGUMENT. 

IN 1948 THIS COURT HELD IN TOWNSEND V. BURKE, 334 U.S. 736, THAT THE
ABSENCE OF COUNSEL DURING SENTENCING AFTER A PLEA OF GUILTY COUPLED
WITH "ASSUMPTIONS CONCERNING HIS CRIMINAL RECORD WHICH WERE MATERIALLY
UNTRUE" DEPRIVED THE DEFENDANT IN THAT CASE OF DUE PROCESS.  MR.
JUSTICE JACKSON THERE STATED IN CONCLUSION, "IN THIS CASE, COUNSEL
MIGHT NOT HAVE CHANGED THE SENTENCE, BUT HE COULD HAVE TAKEN STEPS TO
SEE THAT THE CONVICTION AND SENTENCE WERE NOT PREDICATED ON
MISINFORMATION OR MISREADING OF COURT RECORDS, A REQUIREMENT OF FAIR
PLAY WHICH ABSENCE OF COUNSEL WITHHELD FROM THIS PRISONER."  ID., AT
741.  THEN IN MOORE V. MICHIGAN, 355 U.S. 155 (1957), WHERE A DENIAL OF
DUE PROCESS WAS FOUND WHEN THE DEFENDANT DID NOT INTELLIGENTLY AND
UNDERSTANDINGLY WAIVE COUNSEL BEFORE ENTERING A PLEA OF GUILTY, THIS
COURT EMPHASIZED THE PREJUDICE STEMMING FROM THE ABSENCE OF COUNSEL AT
THE HEARING ON THE DEGREE OF THE CRIME FOLLOWING ENTRY OF A GUILTY PLEA
AND STATED, "THE RIGHT TO COUNSEL IS NOT A RIGHT CONFINED TO
REPRESENTATION DURING THE TRIAL ON THE MERITS."  ID., AT 160. 

IN HAMILTON V. ALABAMA, 368 U.S. 52 (1961), IT WAS HELD THAT FAILURE
TO APPOINT COUNSEL AT ARRAIGNMENT DEPRIVED THE PETITIONER OF DUE
PROCESS, NOTWITHSTANDING THE FACT THAT HE SIMPLY PLEADED NOT GUILTY AT
THAT TIME, BECAUSE UNDER ALABAMA LAW CERTAIN DEFENSES HAD TO BE RAISED
THEN OR BE ABANDONED.  SEE ALSO REECE V. GEORGIA, 350 U.S. 85 (1955),
AND WHITE V. MARYLAND, 373 U.S. 59 (1963). 

ALL THE FOREGOING CASES, WITH THE EXCEPTION OF WHITE WERE DECIDED
DURING THE REIGN OF BETTS V. BRADY, 316 U.S. 455 (1942), AND
ACCORDINGLY RELIED ON VARIOUS "SPECIAL CIRCUMSTANCES" TO MAKE THE RIGHT
TO COUNSEL APPLICABLE.  IN GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963),
HOWEVER, BETTS WAS OVERRULED AND THIS COURT HELD THAT THE SIXTH
AMENDMENT AS APPLIED THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT WAS APPLICABLE TO THE STATES AND, ACCORDINGLY, THAT THERE WAS
AN ABSOLUTE RIGHT TO APPOINTMENT OF COUNSEL IN FELONY CASES. 

THERE WAS NO OCCASION IN GIDEON TO ENUMERATE THE VARIOUS STAGES IN A
CRIMINAL PROCEEDING AT WHICH COUNSEL WAS REQUIRED, BUT TOWNSEND, MOORE,
AND HAMILTON, WHEN THE BETTS REQUIREMENT OF SPECIAL CIRCUMSTANCES IS
STRIPPED AWAY BY GIDEON, CLEARLY STAND FOR THE PROPOSITION THAT
APPOINTMENT OF COUNSEL FOR AN INDIGENT IS REQUIRED AT EVERY STAGE OF A
CRIMINAL PROCEEDING WHERE SUBSTANTIAL RIGHTS OF A CRIMINAL ACCUSED MAY
BE AFFECTED.  IN PARTICULAR, TOWNSEND V. BURKE, SUPRA, ILLUSTRATES THE
CRITICAL NATURE OF SENTENCING IN A CRIMINAL CASE AND MIGHT WELL BE
CONSIDERED TO SUPPORT BY ITSELF A HOLDING THAT THE RIGHT TO COUNSEL
APPLIES AT SENTENCING.  (FN3)  MANY LOWER COURTS HAVE CONCLUDED THAT
THE SIXTH AMENDMENT RIGHT TO COUNSEL EXTENDS TO SENTENCING IN FEDERAL
CASES.  (FN4) 

THE STATE, HOWEVER, ARGUES THAT THE PETITIONERS WERE SENTENCED AT THE
TIME THEY WERE ORIGINALLY PLACED ON PROBATION AND THAT THE IMPOSITION
OF SENTENCE FOLLOWING PROBATION REVOCATION IS, IN EFFECT, A MERE
FORMALITY CONSTITUTING PART OF THE PROBATION REVOCATION PROCEEDING.  IT
IS TRUE THAT SENTENCING IN WASHINGTON OFFERS FEWER OPPORTUNITIES FOR
THE EXERCISE OF JUDICIAL DISCRETION THAN IN MANY OTHER JURISDICTIONS. 
THE APPLICABLE STATUTE REQUIRES THE TRIAL JUDGE IN ALL CASES TO
SENTENCE THE CONVICTED PERSON TO THE MAXIMUM TERM PROVIDED BY LAW FOR
THE OFFENSE OF WHICH HE WAS CONVICTED.  WASH. REV. CODE SEC 9.95.010. 
THE ACTUAL DETERMINATION OF THE LENGTH OF TIME TO BE SERVED IS TO BE
MADE BY THE BOARD OF PRISON TERMS AND PAROLES WITHIN SIX MONTHS AFTER
THE CONVICTED PERSON IS ADMITTED TO PRISON.  WASH. REV. CODE SEC
9.95.040. 

ON THE OTHER HAND, THE SENTENCING JUDGE IS REQUIRED BY STATUTE,
TOGETHER WITH THE PROSECUTOR, TO FURNISH THE BOARD WITH A
RECOMMENDATION AS TO THE LENGTH OF TIME THAT THE PERSON SHOULD SERVE,
IN ADDITION TO SUPPLYING IT WITH VARIOUS INFORMATION ABOUT THE
CIRCUMSTANCES OF THE CRIME AND THE CHARACTER OF THE INDIVIDUAL.  WASH.
REV. CODE SEC 9.95.030.  WE WERE INFORMED DURING ORAL ARGUMENT THAT THE
BOARD PLACES CONSIDERABLE WEIGHT ON THESE RECOMMENDATIONS, ALTHOUGH IT
IS IN NO WAY BOUND BY THEM.  OBVIOUSLY TO THE EXTENT SUCH
RECOMMENDATIONS ARE INFLUENTIAL IN DETERMINING THE RESULTING SENTENCE,
THE NECESSITY FOR THE AID OF COUNSEL IN MARSHALING THE FACTS,
INTRODUCING EVIDENCE OF MITIGATING CIRCUMSTANCES AND IN GENERAL AIDING
AND ASSISTING THE DEFENDANT TO PRESENT HIS CASE AS TO SENTENCE IS
APPARENT. 

EVEN MORE IMPORTANT IN A CASE SUCH AS THIS IS THE FACT THAT CERTAIN
LEGAL RIGHTS MAY BE LOST IF NOT EXERCISED AT THIS STAGE.  FOR ONE,
WASHINGTON LAW PROVIDES THAT AN APPEAL IN A CASE INVOLVING A PLEA OF
GUILTY FOLLOWED BY PROBATION CAN ONLY BE TAKEN AFTER SENTENCE IS
IMPOSED FOLLOWING REVOCATION OF PROBATION.  STATE V. FARMER, 39 WASH.
2D 675, 237 P.2D 734 (1951).  (FN5)  THEREFORE IN A CASE WHERE AN
ACCUSED AGREED TO PLEAD GUILTY, ALTHOUGH HE HAD A VALID DEFENSE,
BECAUSE HE WAS OFFERED PROBATION, ABSENCE OF COUNSEL AT THE IMPOSITION
OF THE DEFERRED SENTENCE MIGHT WELL RESULT IN LOSS OF THE RIGHT TO
APPEAL.  WHILE ORDINARILY APPEALS FROM A PLEA OF GUILTY ARE LESS
FREQUENT THAN THOSE FOLLOWING A TRIAL ON THE MERITS, THE INCIDENCE OF
IMPROPERLY OBTAINED GUILTY PLEAS IS NOT SO SLIGHT AS TO BE CAPABLE OF
BEING CHARACTERIZED AS DE MINIMIS.  SEE, E.G., UNITED STATES EX REL.
ELKSNIS V. GILLIGAN, 256 F. SUPP. 244 (D.C.S.D.N.Y. 1966).  CF.
MACHIBRODA V. UNITED STATES, 368 U.S. 487 (1962).  (FN6) 

LIKEWISE THE WASHINGTON STATUTES PROVIDE THAT A PLEA OF GUILTY CAN BE
WITHDRAWN AT ANY TIME PRIOR TO THE IMPOSITION OF SENTENCE, WASH. REV.
CODE SEC 10.40.175, STATE V. FARMER, SUPRA, IF THE TRIAL JUDGE IN HIS
DISCRETION FINDS THAT THE ENDS OF JUSTICE WILL BE SERVED.  STATE V.
SHANNON, 60 WASH. 2D 883, 376 P.2D 646 (1962).  WITHOUT UNDERTAKING TO
CATALOG THE VARIOUS SITUATIONS IN WHICH A LAWYER COULD BE OF
SUBSTANTIAL ASSISTANCE TO A DEFENDANT IN SUCH A CASE, IT CAN BE
REITERATED THAT A PLEA OF GUILTY MIGHT WELL BE IMPROPERLY OBTAINED BY
THE PROMISE TO HAVE A DEFENDANT PLACED ON THE VERY PROBATION THE
REVOCATION OF WHICH FURNISHES THE OCCASION FOR DESIRING TO WITHDRAW THE
PLEA.  AN UNCOUNSELED DEFENDANT MIGHT VERY LIKELY BE UNAWARE OF THIS
OPPORTUNITY. 

THE TWO FOREGOING FACTORS ASSUME INCREASED SIGNIFICANCE WHEN IT IS
CONSIDERED THAT, AS HAPPENED IN THESE TWO CASES, THE EVENTUAL
IMPOSITION OF SENTENCE ON THE PRIOR PLEA OF GUILTY IS BASED ON THE
ALLEGED COMMISSION OF OFFENSES FOR WHICH THE ACCUSED IS NEVER TRIED. 

IN SUM, WE DO NOT QUESTION THE AUTHORITY OF THE STATE OF WASHINGTON
TO PROVIDE FOR A DEFERRED SENTENCING PROCEDURE COUPLED WITH ITS
PROBATION PROVISIONS.  INDEED, IT APPEARS TO BE AN ENLIGHTENED STEP
FORWARD.  ALL WE DECIDE HERE IS THAT A LAWYER MUST BE AFFORDED AT THIS
PROCEEDING WHETHER IT BE LABELED A REVOCATION OF PROBATION OR A
DEFERRED SENTENCING.  WE ASSUME THAT COUNSEL APPOINTED FOR THE PURPOSE
OF THE TRIAL OR GUILTY PLEA WOULD NOT BE UNDULY BURDENED BY BEING
REQUESTED TO FOLLOW THROUGH AT THE DEFERRED SENTENCING STAGE OF THE
PROCEEDING. 

THE JUDGMENTS BELOW ARE REVERSED AND THE CASES ARE REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  THE STATE SUGGESTS THAT THE SUPREME COURT OF WASHINGTON WAS IN
ERROR IN STATING THAT MEMPA RECEIVED A DEFERRED RATHER THAN A SUSPENDED
SENTENCE, BUT WE ACCEPT THAT COURT'S CHARACTERIZATION OF THE SENTENCE
AS SUPPORTED BY THE RECORD. 

FN2  UNDER WASHINGTON PROCEDURE THE TRIAL JUDGE IS REQUIRED BY
STATUTE TO IMPOSE THE MAXIMUM SENTENCE PROVIDED BY LAW FOR THE OFFENSE,
WASH. REV. CODE SEC 9.95.010, BUT IS ALSO REQUIRED, ALONG WITH THE
PROSECUTING ATTORNEY, TO MAKE A RECOMMENDATION TO THE PAROLE BOARD OF
THE TIME THAT THE DEFENDANT SHOULD SERVE ACCOMPANIED BY A STATEMENT OF
THE FACTS CONCERNING THE CRIME AND ANY OTHER INFORMATION ABOUT THE
DEFANDANT DEEMED RELEVANT.  WASH. REV. CODE SEC 9.95.030.  HOWEVER, IT
IS THE PAROLE BOARD THAT ACTUALLY DETERMINES THE TIME TO BE SERVED. 
WASH. REV.  CODE SEC 9.95.040.  SEE INFRA, AT 135. 

FN3  SEE KADISH, THE ADVOCATE AND THE EXPERT - COUNSEL IN THE PENO
CORRECTIONAL PROCESS, 45 MINN. L. REV. 803, 806 (1961).    FN4  E.G.,
MARTIN V. UNITED STATES, 182 F.2D 225 (C.A. 5TH CIR. 1950); MCKINNEY V.
UNITED STATES, 93 U.S. APP. D.C. 222, 208 F.2D 844 (1953); NUNLEY V.
UNITED STATES, 283 F.2D 651 (C.A. 10TH CIR. 1960). 

FN5  STATE V. PROCTOR, 68 WASH. 2D 817, 415 P.2D 634 (1966), MODIFIED
THE FARMER RULE ONLY TO PERMIT AN APPEAL FOLLOWING PLACEMENT ON
PROBATION OF CASES INVOLVING (1) A CONTESTED TRIAL AND (2) THE
IMPOSITION OF A JAIL TERM OR FINE AS A CONDITION OF PROBATION. 

FN6  SEE GENERALLY NEWMAN, CONVICTION - THE DETERMINATION OF GUILT OR
INNOCENCE WITHOUT TRIAL (1966); ENKER, "PERSPECTIVES ON PLEA
BARGAINING," IN THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:  THE COURTS 108-119
(1967). 
..END :






WHITNEY V. FLORIDA 389 U.S. 138 


NO. 68.  ARGUED OCTOBER 19, 1967.  - DECIDED NOVEMBER 13, 1967.  - 184
SO. 2D 207, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 


WHITNEY V. FLORIDA. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD
DISTRICT. 

PER CURIAM. 

THE WRIT IS DISMISSED AS IMPROVIDENTLY GRANTED WITHOUT PREJUDICE TO
AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN THE APPROPRIATE UNITED
STATES DISTRICT COURT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE QUESTION PRESENTED HERE IS WHETHER FLORIDA HAS DEPRIVED
PETITIONER OF EQUAL PROTECTION OR DUE PROCESS OF LAW BY SUMMARILY
DISMISSING HIS COLLATERAL ATTACK ON A STATE CRIMINAL CONVICTION WITHOUT
CONDUCTING AN EVIDENTIARY HEARING.  BECAUSE OF THE INCREASING TIDE OF
HABEAS CORPUS PETITIONS BROUGHT BY PRISONERS (SEE PRICE V. JOHNSTON,
334 U.S. 266, 293) - MANY OF WHOM FIND THEY MUST TURN TO FEDERAL COURTS
TO OBTAIN A HEARING - THE QUESTION IS OF CONSIDERABLE IMPORTANCE. 

I ASSUME THAT THE FEDERAL CONSTITUTION DOES NOT COMPEL THE STATES TO
PROVIDE ANY REMEDY FOR COLLATERAL ATTACK OF CRIMINAL CONVICTIONS.  CF.
TOWNSEND V. SAIN, 372 U.S. 293, 313, N. 9; GRIFFIN V. ILLINOIS, 351
U.S. 12, 18.  BUT WHEN A STATE MAKES AVAILABLE A MEANS FOR REVIEW, IT
IS HELD TO BE A "CONSTITUTIONAL REQUIREMENT OF SUBSTANTIAL EQUALITY AND
FAIR PROCESS."  ANDERS V. CALIFORNIA, 386 U.S. 738, 744.  IT MAY NOT
DISCRIMINATE ARBITRARILY BETWEEN PERSONS APPLYING FOR RELIEF (E.G.,
BURNS V. OHIO, 360 U.S. 252), AND IT MUST ADHERE TO THE REQUIREMENTS OF
DUE PROCESS.  SWENSON V. BOSLER, 386 U.S. 258, 260.  THOUGH THESE RULES
WERE PRIMARILY DEVELOPED WITH REFERENCE TO APPELLATE REVIEW, WE HAVE
HELD THEM APPLICABLE WITH EQUAL FORCE TO STATE POST-CONVICTION
PROCEEDINGS.  SMITH V. BENNETT, 365 U.S. 708. 

BY RULE 1 OF THE FLORIDA RULES OF CRIMINAL PROCEDURE, FLORIDA HAS
PROVIDED A MEANS OF COLLATERAL ATTACK. 

IN HIS APPLICATION PETITIONER ALLEGED THAT EXTENSIVE PRETRIAL
PUBLICITY - INCLUDING TELEVISION BROADCASTS OF CONFESSIONS GIVEN BY HIM
- PREVENTED SELECTION OF A FAIR AND IMPARTIAL JURY.  PETITIONER FURTHER
ALLEGED THAT HE ASKED HIS TRIAL COUNSEL TO REQUEST A CHANGE OF VENUE,
BUT COUNSEL REFUSED TO DO SO.  THE FLORIDA DISTRICT COURT OF APPEAL
HELD THAT NO EVIDENTIARY HEARING WAS NECESSARY BECAUSE VENUE OBJECTIONS
COULD ONLY BE RAISED AT TRIAL AND BECAUSE VENUE WAS RES JUDICATA UNDER
THE JUDGMENT IN A PRIOR COLLATERAL ATTACK BY PETITIONER (SEE WHITNEY V.
COCHRAN, 152 SO. 2D 727, 730 (FLA.)) THAT REPRESENTATION BY TRIAL
COUNSEL WAS ADEQUATE AND NOT A FARCE OR SHAM. 

BUT THIS CHARACTERIZATION AND DISPOSITION OF PETITIONER'S ALLEGATIONS
AVOID THE BASIC ISSUE PRESENTED.  UNDER ENTSMINGER V. IOWA, 386 U.S.
748, A DEFENDANT WHO SPECIFICALLY ASKED HIS ATTORNEY TO TAKE A PLENARY
APPEAL WAS DENIED A CONSTITUTIONAL RIGHT WHEN THE ATTORNEY TOOK ONLY A
TRUNCATED APPEAL.  THE ALLEGATIONS OF PETITIONER HERE CLEARLY
CONSTITUTE A PRIMA FACIE CASE OF VIOLATION OF THIS PRINCIPLE. 

MY BROTHER HARLAN CHARACTERIZES THIS CRIME AS "A PARTICULARLY BRUTAL
MURDER" - AND SO IT WAS.  BUT THAT DOES NOT ALTER THE UNDERLYING
CONSTITUTIONAL QUESTION WHETHER THE ATMOSPHERE OF THE COMMUNITY HAD
BEEN SO SATURATED BY ADVERSE PUBLICITY AS TO DEPRIVE THE STATE TRIAL OF
THE CONSTITUTIONAL REQUIREMENT OF DUE PROCESS.  SHEPPARD V. MAXWELL,
384 U.S. 333.  MY BROTHER HARLAN STATES THAT FROM THIS RECORD IT IS
"INESCAPABLE" THAT PETITIONER'S TRIAL COUNSEL "DELIBERATELY" CHOSE TO
TRY THE CASE BEFORE A JURY THAT MAY HAVE BEEN EXPOSED TO PETITIONER'S
TELEVISED CONFESSIONS.  BUT WITH ALL RESPECT, THAT IS NO ANSWER TO THE
PRESENT CONSTITUTIONAL CLAIM.  UNTIL WE KNOW THE EXTENT AND DEGREE OF
SATURATION OF THE PUBLIC MIND WITH THE TV FILMS, IT IS IMPOSSIBLE TO
SAY WHETHER OR NOT COUNSEL'S FAILURE TO OBTAIN A CHANGE OF VENUE WAS
HARMLESS ERROR UNDER THE RULING OF CHAPMAN V. CALIFORNIA, 386 U.S. 18. 
FAR MORE THAN MERE TRIAL TACTICS AND STRATEGY IS INVOLVED.  IN SUCH A
CASE THE DENIAL OF THE DEFENDANT'S RIGHTS IS NOT CURED BY OUTSTANDING
REPRESENTATION BY COUNSEL DURING THE BALANCE OF PROCEEDINGS.  IT IS NO
ANSWER FOR THE FLORIDA COURTS TO SAY COUNSEL NEVER MOVED AT TRIAL FOR A
TRANSFER TO A COUNTY NOT SATURATED WITH PRETRIAL PUBLICITY; FOR THIS
FAILURE OF COUNSEL IS THE VERY HEART OF THE WRONG ALLEGEDLY DONE TO
PETITIONER.  NOR ARE RES JUDICATA PRINCIPLES APPLICABLE, FOR AS I READ
WHITNEY V. COCHRAN THE ENTSMINGER RIGHT-TO-COUNSEL ISSUE WAS NEITHER
RAISED NOR DECIDED. 

I WOULD VACATE THE JUDGMENT AND REMAND TO THE FLORIDA COURTS SO THAT
THE STATE MAY GIVE PETITIONER THE EVIDENTIARY HEARING TO WHICH HE IS
ENTITLED.  WE NEEDLESSLY BURDEN THE FEDERAL REGIME* WHEN WE DO NOT
INSIST THAT FLORIDA, WHICH HAS PROVIDED A REMEDY, HAVE THE EVIDENTIARY
HEARING WHICH WILL DETERMINE THE NATURE AND EXTENT OF THE PRETRIAL
PUBLICITY AND WHETHER IT WAS TRIVIAL OR POTENTIALLY DAMAGING. 

*HABEAS CORPUS PETITIONS AND PETITIONS UNDER 28 U.S.C. SEC 2255 IN
THE FEDERAL COURTS INCREASED FROM 598 IN 1941 TO 2,314 IN 1961 (ANNUAL
REP. ADM. OFF.  U.S. COURTS 1964, P. 155) AND TO 9,697 IN THE 1967
FISCAL YEAR.  ANNUAL REP. 1967, P. II-56.  OF THESE, 5,948 WERE HABEAS
CORPUS CASES BROUGHT BY STATE PRISONERS.  IBID. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE STATE COURT.  I CAN FIND NO SOUND
BASIS FOR THIS COURT'S NOT REACHING THE MERITS OF THE QUESTIONS BROUGHT
HERE FOR REVIEW, EVEN THOUGH I BELIEVE THAT THE WRIT SHOULD NOT HAVE
BEEN ISSUED IN THE FIRST PLACE.  NOR DO I BELIEVE THAT A FEDERAL HABEAS
CORPUS PROCEEDING SHOULD BE ENCOURAGED, WHICH IS THE IMPLICIT EFFECT OF
THE COURT'S "WITHOUT PREJUDICE" DISMISSAL, OR, AS MY BROTHER DOUGLAS
SUGGESTS, THAT THE CASE SHOULD BE REMANDED TO THE STATE COURT FOR A
HEARING. 

PETITIONER WAS CONVICTED OF A PARTICULARLY BRUTAL MURDER, COMMITTED
IN THE COURSE OF AN ARMED ROBBERY.  AT TRIAL, WITH ADVICE OF COUNSEL,
HE ENTERED INTO A WRITTEN STIPULATION, CONCEDED TO BE THE VIRTUAL
EQUIVALENT OF A GUILTY PLEA, CONFESSING THE MURDER.  CONSEQUENTLY, THE
ONLY QUESTION ARGUED TO THE JURY BY COUNSEL WAS WHETHER IT WOULD
RECOMMEND MERCY; THE JURY DECLINED TO DO SO, AND A SENTENCE OF DEATH
WAS IMPOSED. 

PRIOR TO HIS TRIAL, PETITIONER HAD CONFESSED TO FIVE OTHER HOMICIDES
AND ONE ATTEMPTED HOMICIDE.  THESE CONFESSIONS WERE NOT REFERRED TO AT
TRIAL.  THEY WERE, HOWEVER, ALLEGEDLY GIVEN WIDE PUBLICITY BY
TELEVISION AND RADIO STATIONS IN THE AREA WHERE TRIAL OCCURRED. 
CONTENDING THAT THIS PUBLICITY HAD DEPRIVED HIM OF THE RIGHT TO TRIAL
BEFORE AN IMPARTIAL JURY, PETITIONER BROUGHT THIS COLLATERAL PROCEEDING
IN THE STATE COURTS. 

THE FLORIDA DISTRICT COURT OF APPEAL, REJECTING THE ARGUMENT THAT
PETITIONER'S CLAIM WAS FORECLOSED BY HIS FAILURE TO RAISE IT IN PRIOR
PROCEEDINGS, HELD THAT AS A MATTER OF STATE LAW THE PRINCIPLE OF RES
JUDICATA IS APPLICABLE, IN CRIMINAL CASES, "ONLY TO THOSE ITEMS
ACTUALLY RAISED IN THE PRIOR PROCEEDINGS."  WHITNEY V. STATE, 184 SO.
2D 207, AT 209 (FLA.).  ON THE MERITS THE COURT REJECTED PETITIONER'S
CLAIM, RELYING HEAVILY ON THE FACT THAT TRIAL COUNSEL HAD MADE NO
MOTION FOR A CHANGE OF VENUE, AND HAD NOT EVEN UNDERTAKEN TO EXERCISE
ALL OF HIS PEREMPTORY CHALLENGES.  CF. BECK V. WASHINGTON, 369 U.S.
541, 557-558.  THE RECORD ALSO REVEALS THAT COUNSEL CONDUCTED A
VIGOROUS VOIR DIRE DURING WHICH, ALTHOUGH FOR OBVIOUS REASONS NO
MENTION OF OTHER CRIMES WAS MADE, EACH JUROR REPRESENTED THAT HE COULD
AND WOULD JUDGE THE CASE SOLELY ON THE BASIS OF WHAT WAS PRESENTED IN
COURT.  THE CONCLUSION THAT TRIAL COUNSEL DELIBERATELY CHOSE TO RISK
THE MERCY OF A LOCAL JURY, RATHER THAN COURT MORE IMPONDERABLE HAZARDS
ELSEWHERE, SEEMS INESCAPABLE. 

AFTER TRIAL, NEW COUNSEL SOUGHT TO DEPICT THIS PERFECTLY
UNDERSTANDABLE PIECE OF STRATEGY AS BUT THE PRODUCT OF INCOMPETENCE SO
GROSS AS TO GIVE RISE TO A CONSTITUTIONAL CLAIM THAT THE PETITIONER WAS
DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL.  IN LIGHT OF THE
RECORD, AND PARTICULARLY DEFENSE COUNSEL'S EXTENSIVE SUMMATION, WHICH
CLEARLY EVINCES AN EFFORT TO MAKE THE BEST OF A HOPELESS CASE BY TRYING
TO SAVE DEFENDANT FROM THE DEATH PENALTY, THE CLAIM NOW MADE IS LITTLE
SHORT OF FRIVOLOUS. 

I CAN FIND IN THIS STRAIGHTFORWARD TRAIN OF EVENTS NO ROOM FOR
QUESTIONING THE VALIDITY OF THIS STATE CONVICTION FROM A FEDERAL
CONSTITUTIONAL STANDPOINT, OR FOR FURTHER PROLONGING THE CASE. 
..END :










HACKIN V. ARIZONA 389 U.S. 143 


NO. 523.  DECIDED NOVEMBER 13, 1967.  - 102 ARIZ. 218, 427 P.2D 910,
APPEAL DISMISSED. 


HACKIN V. ARIZONA ET AL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED
FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

APPELLANT, WHO IS NOT A LICENSED ATTORNEY, APPEARED IN A STATE COURT
HABEAS CORPUS PROCEEDING ON BEHALF OF AN INDIGENT PRISONER.  THE
INDIGENT PRISONER WAS BEING HELD FOR EXTRADITION TO OKLAHOMA, WHERE HE
HAD BEEN CONVICTED OF MURDER AND HAD ESCAPED FROM CUSTODY.  APPELLANT
HAD PREVIOUSLY ATTEMPTED TO SECURE FOR THE PRISONER APPOINTED COUNSEL
TO ARGUE IN COURT THE PRISONER'S CONTENTION THAT HIS OKLAHOMA
CONVICTION WAS INVALID DUE TO DENIAL OF CERTAIN CONSTITUTIONAL RIGHTS. 
BUT IN ARIZONA AN INDIGENT HAS NO RIGHT TO APPOINTED COUNSEL AT HABEAS
CORPUS PROCEEDINGS (FN1) (E.G., PALMER V. STATE, 99 ARIZ. 93, 407 P.2D
64) INCLUDING HABEAS CORPUS PROCEEDINGS THAT ARE PART OF THE
EXTRADITION PROCESS (APPLICATIONS OF OPPENHEIMER, 95 ARIZ. 292, 389
P.2D 696).  UNABLE TO OBTAIN COUNSEL FOR THE INDIGENT, APPELLANT CHOSE
TO REPRESENT HIM HIMSELF AND WAS CONVICTED OF A MISDEMEANOR FOR
VIOLATION OF AN ARIZONA STATUTE PROVIDING THAT "NO PERSON SHALL
PRACTICE LAW IN THIS STATE UNLESS HE IS AN ACTIVE MEMBER OF THE STATE
BAR IN GOOD STANDING  ...  ."  (HACKIN V. STATE, 102 ARIZ. 218, 427
P.2D 910, QUOTING ARIZ. REV. STAT. ANN. SEC. 32-261 A.) 

APPELLANT CONTENDS THAT THIS STATUTE SUFFERS FROM OVERBREADTH AND
VAGUENESS AND IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT INTERFERES
WITH THE RIGHTS OF THE DESTITUTE AND IGNORANT - THOSE WHO CANNOT
ACQUIRE THE SERVICES OF COUNSEL - TO OBTAIN REDRESS UNDER THE LAW FOR
WRONGS DONE TO THEM.  HE ALSO ALLEGES THE STATUTE IS UNCONSTITUTIONAL
AS APPLIED HERE, WHERE APPELLANT ACTED ON BEHALF OF THE INDIGENT
PRISONER ONLY AFTER EXHAUSTIVE EFFORTS TO OBTAIN APPOINTED COUNSEL. 
APPELLANT IS NO STRANGER TO THE LAW.  HE GRADUATED FROM AN UNACCREDITED
LAW SCHOOL BUT WAS REFUSED ADMISSION TO THE ARIZONA BAR.  SEE HACKIN V.
LOCKWOOD, 361 F.2D 499 (C.A. 9TH CIR.), CERT. DENIED, 385 U.S. 960. 

THE CLAIM THAT THE STATUTE DETERS CONSTITUTIONALLY PROTECTED ACTIVITY
IS NOT FRIVOLOUS.  WHETHER A STATE, UNDER GUISE OF PROTECTING ITS
CITIZENS FROM LEGAL QUACKS AND CHARLATANS, CAN MAKE CRIMINALS OF THOSE
WHO, IN GOOD FAITH AND FOR NO PERSONAL PROFIT, ASSIST THE INDIGENT TO
ASSERT THEIR CONSTITUTIONAL RIGHTS IS A SUBSTANTIAL QUESTION THIS COURT
SHOULD ANSWER. 

RIGHTS PROTECTED BY THE FIRST AMENDMENT INCLUDE ADVOCACY AND PETITION
FOR REDRESS OF GRIEVANCES (NAACP V. BUTTON, 371 U.S. 415, 429; EDWARDS
V. SOUTH CAROLINA, 372 U.S. 229, 235), AND THE FOURTEENTH ADMENDMENT
ENSURES EQUAL JUSTICE FOR THE POOR IN BOTH CRIMINAL AND CIVIL ACTIONS
(SEE WILLIAMS V. SHAFFER, 385 U.S. 1037 (DISSENTING OPINION)).  BUT TO
MILLIONS OF AMERICANS WHO ARE INDIGENT AND IGNORANT - AND OFTEN MEMBERS
OF MINORITY GROUPS - THESE RIGHTS ARE MEANINGLESS.  THEY ARE HELPLESS
TO ASSERT THEIR RIGHTS UNDER THE LAW WITHOUT ASSISTANCE.  THEY SUFFER
DISCRIMINATION IN HOUSING AND EMPLOYMENT, ARE VICTIMIZED BY SHADY
CONSUMER SALES PRACTICES, EVICTED FROM THEIR HOMES AT THE WHIM OF THE
LANDLORD, DENIED WELFARE PAYMENTS, AND ENDURE DOMESTIC STRIFE WITHOUT
HOPE OF THE LEGAL REMEDIES OF DIVORCE, MAINTENANCE, OR CHILD CUSTODY
DECREES.  (FN2) 

IF TRUE EQUAL PROTECTION OF THE LAWS IS TO BE REALIZED, AN INDIGENT
MUST BE ABLE TO OBTAIN ASSISTANCE WHEN HE SUFFERS A DENIAL OF HIS
RIGHTS.  TODAY, THIS GOAL IS ONLY A GOAL.  OUTSIDE THE AREA OF CRIMINAL
PROCEEDINGS COVERED BY OUR DECISIONS IN GIDEON V. WAINWRIGHT, 372 U.S.
335, AND DOUGLAS V. CALIFORNIA, 372 U.S. 353, COUNSEL IS SELDOM
AVAILABLE TO THE INDIGENT.  AS THIS COURT HAS RECOGNIZED, THERE IS A
DEARTH OF LAWYERS WHO ARE WILLING, VOLUNTARILY, TO TAKE ON UNPROFITABLE
AND UNPOPULAR CAUSES.  NAACP V. BUTTON, 371 U.S., AT 443.  SEE ALSO
JOHNSON V. AVERY, 252 F. SUPP. 783, 784 (C.C.M.D. TENN.). 

SOME STATES, AWARE OF THE ACUTE SHORTAGE OF LAWYERS TO HELP THE
INDIGENT, HAVE UTILIZED THE ABILITIES OF QUALIFIED LAW STUDENTS TO
ADVISE INDIGENTS AND EVEN TO REPRESENT THEM IN COURT IN LIMITED
CIRCUMSTANCES.  (FN3)  BUT WHERE THIS PRACTICE IS NOT SANCTIONED BY
LAW, THE STUDENT ADVOCATE FOR THE POOR MAY BE SUBJECTED TO CRIMINAL
PENALTY UNDER BROADLY DRAFTED STATUTES PROHIBITING UNAUTHORIZED
PRACTICE OF LAW. 

THERE IS EMERGING, PARTICULARLY IN THE GHETTO AREAS OF OUR CITIES, A
TYPE OF ORGANIZATION STYLED TO BRING A NEW BRAND OF LEGAL ASSISTANCE TO
THE INDIGENT.  THESE GROUPS, FUNDED IN PART BY THE FEDERAL OFFICE OF
ECONOMIC OPPORTUNITY, CHARACTERISTICALLY ESTABLISH NEIGHBORHOOD OFFICES
WHERE THE POOR CAN COME FOR ASSISTANCE.  THEY ATTEMPT TO DISPENSE
SERVICES ON A COMPREHENSIVE INTEGRATED SCALE, USING LAWYERS, SOCIAL
WORKERS, MEMBERS OF HEALTH PROFESSIONS, AND OTHER NONLAWYER AIDES. 
(FN4)  THESE NEW AND FLEXIBLE APPROACHES TO GIVING LEGAL AID TO THE
POOR RECOGNIZE THAT THE PROBLEMS OF INDIGENTS - ALTHOUGH OF THE TYPE
FOR WHICH AN ATTORNEY HAS TRADITIONALLY BEEN CONSULTED - ARE TOO
IMMENSE TO BE SOLVED SOLELY BY MEMBERS OF THE BAR.  THE SUPPLY OF
LAWYER MANPOWER IS NOT NEARLY LARGE ENOUGH.  (FN5)  BUT THE NECESSARY
INVOLVEMENT OF LAY PERSON IN THESE PROGRAMS THREATENS THEIR SUCCESS. 
LAY INVOLVEMENT WAS RECENTLY CITED BY NEW YORK'S APPELLATE DIVISION AS
ONE GROUND FOR DENYING THE APPLICATION OF A PROPOSED CORPORATE AID-TO
INDIGENT PROGRAM FOR NEW YORK CITY.  MATTER OF ACTION FOR LEGAL
SERVICES, 26 APP. DIV. 2D 354, 274 N.Y.S.2D 779; CONTRA, IN RE
COMMUNITY LEGAL SERVICES, COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY,
NO. 4968, MARCH TERM, 1966 (DECIDED MAY 10, 1967).  (FN6) 

THE SO-CALLED "LEGAL" PROBLEM OF THE POOR IS OFTEN AN UNIDENTIFIED
STRAND IN A COMPLEX OF SOCIAL, ECONOMIC, PSYCHOLOGICAL, AND PSYCHIATRIC
PROBLEMS.  IDENTIFICATION OF THE "LEGAL" PROBLEM AT TIMES IF FOR THE
EXPERT.  BUT EVEN A "LAY" PERSON CAN OFTEN PERFORM THAT FUNCTION AND
MARK THE PATH THAT LEADS TO THE SCHOOL BOARD, THE SCHOOL PRINCIPAL, THE
WELFARE AGENCY, THE VETERANS ADMINISTRATION, THE POLICE REVIEW BOARD,
OR THE URBAN RENEWAL AGENCY.  (FN7)  IF HE NEITHER SOLICITS NOR OBTAINS
A FEE FOR HIS SERVICES, WHY SHOULD HE NOT BE FREE TO ACT?  FULL-FLEDGED
REPRESENTATION IN A BATTLE BEFORE A COURT OR AGENCY REQUIRES
PROFESSIONAL SKILLS THAT LAYMEN LACK; AND THEREFORE THE CLIENT SUFFERS,
PERHAPS GRIEVOUSLY, IF HE IS NOT REPRESENTED BY A LAWYER.  BUT IN THE
INTERMEDIATE ZONE WHERE THE LOCAL PASTOR, THE SOCIAL WORKER, OR BEST
FRIEND  (FN8)  COMMONLY OPERATES, IS THERE NOT ROOM FOR ACCOMMODATION? 
DEAN CHARLES E. ARES RECENTLY SAID: 

"  ...  THE STRUCTURE OF THE LEGAL PROFESSION IS MIDDLE CLASS IN ITS
ASSUMPTIONS.  WE ASSUME THAT THE LAWYER CAN SIT QUIETLY IN HIS OFFICE
AWAITING THE KNOCK ON THE DOOR BY A CLIENT WHO HAS DISCOVERED THAT HE
HAS A LEGAL PROBLEM AND HAD FOUND THE WAY TO THE LAWYER'S OFFICE  ...
. THIS ASSUMPTION IS NOT VALID FOR THE GREAT MASS OF PEOPLE WHO LIVE IN
POVERTY IN THE UNITED STATES  ... . THE WAYS IN WHICH THIS STRUCTURE
CAN BE CHANGED OPEN EXCITING AND INTERESTING PROSPECTS."  POVERTY,
CIVIL LIBERTIES, AND CIVIL RIGHTS:  A SYMPOSIUM, 41 N.Y.U.L. REV. 328,
346 (1966). 

MOREOVER, WHAT THE POOR NEED, AS MUCH AS OUR CORPORATE GRANTS, IS
PROTECTION BEFORE THEY GET INTO TROUBLE AND CONFRONT A CRISIS.  THIS
MEANS "POLITICAL LEADERSHIP" FOR THE "MINORITY POOR."  ID., AT 351. 
LAWYERS WILL PLAY A ROLE IN THAT MOVEMENT; BUT SO WILL LAYMEN.  THE
LINE THAT MARKS THE AREA INTO WHICH THE LAYMAN MAY NOT STEP EXCEPT AT
HIS PERIL IS NOT CLEAR.  I AM BY NO MEANS SURE THE LINE WAS PROPERLY
DRAWN BY THE COURT BELOW WHERE NO LAWYER COULD BE FOUND AND THIS LAYMAN
APPARENTLY SERVED WITHOUT A FEE. 

LEGAL REPRESENTATION CONNOTES A MAGIC IT OFTEN DOES NOT POSSESS - AS
FOR EXAMPLE, THE COMMITMENT PROCEDURE IN TEXAS, WHERE, BY ONE REPORT,
66 SECONDS ARE GIVEN TO A CASE, THE LAWYER USUALLY NOT EVEN KNOWING HIS
CLIENT AND EARNING A NICE FEE FOR PASSIVE PARTICIPATION.  WEIHOFEN,
MENTAL HEALTH SERVICES FOR THE POOR, 54 CALIF. L. REV. 920, 938-939
(1966).  IF JUSTICE IS THE GOAL, WHY NEED A LAYMAN BE BARRED HERE? 

BROADLY PHRASED UNAUTHORIZED-PRACTICE-OF-LAW STATUTES SUCH AS THAT AT
ISSUE HERE COULD MAKE CRIMINAL MANY OF THE ACTIVITIES REGULARLY DONE BY
SOCIAL WORKERS WHO ASSIST THE POOR IN OBTAINING WELFARE AND ATTEMPT TO
HELP THEM SOLVE DOMESTIC PROBLEMS.  (FN9)  SUCH STATUTES WOULD ALSO
TEND TO DETER PROGRAMS IN WHICH EXPERIENCED WELFARE RECIPIENTS
REPRESENT OTHER, LESS ARTICULATE, RECIPIENTS BEFORE LOCAL WELFARE
DEPARTMENTS.  (FN10) 

AS THIS COURT'S DECISIONS IN NAACP V. BUTTON, SUPRA, AND RAILROAD
TRAINMEN V. VIRGINIA BAR, 377 U.S. 1, INDICATE, STATE PROVISIONS
REGULATING THE LEGAL PROFESSION WILL NOT BE PERMITTED TO ACT AS
OBSTACLES TO THE RIGHTS OF PERSONS TO PETITION THE COURTS AND OTHER
LEGAL AGENCIES FOR REDRESS.  YET STATUTES WITH THE BROAD SWEEP OF THE
ARIZONA PROVISION NOW BEFORE THIS COURT WOULD APPEAR TO HAVE THE
POTENTIAL TO "FREEZE OUT" THE IMAGINATIVE NEW ATTEMPTS TO ASSIST
INDIGENTS REALIZE EQUAL JUSTICE, MERELY BECAUSE LAY PERSONS
PARTICIPATE.  (FN11)  CF. NAACP V. BUTTON, 371 U.S., AT 436.  AS WE
SAID IN BUTTON, THE THREAT OF SANCTIONS MAY DETER AS FORCEFULLY AS THE
IMPOSITION OF THE SANCTIONS.  ID., AT 433.  IN SUCH CIRCUMSTANCES, "THE
STATE MAY PREVAIL ONLY UPON SHOWING A SUBORDINATING INTEREST WHICH IS
COMPELLING."  BATES V. LITTLE ROCK, 361 U.S. 516, 524.  CERTAINLY THE
STATES HAVE A STRONG INTEREST IN PREVENTING LEGALLY UNTRAINED SHYSTERS
WHO POSE AS ATTORNEYS FROM MILKING THE PUBLIC FOR PECUNIARY GAIN.  CF.
NAACP V. BUTTON, AT 441.  BUT IT IS ARGUABLE WHETHER THIS POLICY SHOULD
SUPPORT A PROHIBITION AGAINST CHARITABLE EFFORTS OF NONLAWYERS TO HELP
THE POOR.  CF. OPINION OF THE JUSTICES TO THE SENATE, 289 MASS. 607,
615, 194 N.E. 313, 317-318.  IT MAY WELL BE THAT UNTIL THE GOAL OF FREE
LEGAL ASSISTANCE TO THE INDIGENT IN ALL AREAS OF THE LAW IS ACHIEVED,
THE POOR ARE NOT HARMED BY WELL-MEANING, CHARITABLE ASSISTANCE OF
LAYMEN.  ON THE CONTRARY, FOR THE MAJORITY OF INDIGENTS, WHO ARE NOT SO
FORTUNATE TO BE SERVED BY NEIGHBORHOOD LEGAL OFFICES, LAY ASSISTANCE
MAY BE THE ONLY HOPE FOR ACHIEVING EQUAL JUSTICE AT THIS TIME. 

IN SUM, I FIND THE QUESTIONS POSED IN THIS APPEAL BOTH TIMELY AND
TROUBLESOME; AND IT WOULD APPEAR THAT APPELLANT HAS STANDING TO RAISE
THE INDIGENT'S FIRST AMENDMENT RIGHTS OF ADVOCACY AND PETITION OF
REDRESS AND OF EQUAL JUSTICE.  SEE NAACP V. BUTTON, SUPRA, AT 428;
GRISWOLD V. CONNECTICUT, 381 U.S. 479, 481.  SINCE THE VERY NATURE OF
THE INEQUITY SUFFERED BY THE POOR PRECLUDES THEM FROM ASSERTING THEIR
RIGHTS TO LEGAL ASSISTANCE IN COURT, WHY SHOULD THE LAYMAN WHO STEPS UP
TO SPEAK FOR THEM NOT BE HELD TO BE ASSERTING THEIR CONSTITUTIONAL
RIGHTS?  JOHNSON V. AVERY, SUPRA, AT 786.  CF. BARROWS V. JACKSON, 346
U.S. 249, 257.  ACCORDINGLY, I WOULD HEAR THIS APPEAL. 

FN1  APPELLANT'S CONVICTION FOR UNAUTHORIZED PRACTICE OF LAW WOULD
SEEM TO BE THE RESULT OF ARIZONA'S RESTRICTIVE READING OF GIDEON V.
WAINWRIGHT, 372 U.S. 335.  IN STATE V. BOST, 2 ARIZ. APP. 431, 409 P.2D
590, THE COURT HELD GIDEON INAPPLICABLE TO EXTRADITION PROCEEDINGS
BECAUSE THEY WERE MINISTERIAL RATHER THAN JUDICIAL IN NATURE.  SOME
MEMBERS OF THIS COURT HAVE EXPRESSED DOUBT WHETHER PIGEONHOLING
CRIMINAL PROCEEDINGS INTO CATEGORIES SUCH AS FELONY, MISDEMEANOR,
HABEAS CORPUS, ETC., IS A PROPER MEANS FOR THE STATES TO DEVELOP THE
FULL SCOPE OF THE GIDEON RULE.  SEE DEJOSEPH V. CONNECTICUT, 385 U.S.
982, AND WINTERS V. BECK, 385 U.S. 907 (DISSENTING OPINIONS OF MR.
JUSTICE STEWART).  HAD ARIZONA COURTS APPROACHED THE PROBLEMS IN THAT
LIGHT RATHER THAN SELECTING BETWEEN THE LABELS "MINISTERIAL" AND
"JUDICIAL," THEY MIGHT HAVE CONCLUDED THAT INDIGENTS IN THE POSITION OF
THE PRISONER WHOM APPELLANT AIDED HERE ARE ENTITLED TO COUNSEL UNDER
GIDEON. 

FN2  SEE WILLIAMS V. SHAFFER, 385 U.S. 1037, 1040 (DISSENTING
OPINION); IN RE COMMUNITY LEGAL SERVICES, COURT OF COMMON PLEAS OF
PHILADELPHIA COUNTY (NO. 4968, MARCH TERM, 1966; DECIDED MAY 10,
1967).  SEE ALSO PYE, THE ROLE OF LEGAL SERVICES IN THE ANTI-POVERTY
PROGRAM, 31 LAW & CONTEMP.  PROB.  211, 216-217 (1966):  "THE POOR MAN
BECAUSE OF HIS LACK OF EDUCATION AND SOCIAL STATUS, MAY NEED
REPRESENTATION IN MATTERS SUCH AS A DISPUTE WITH A HIGH SCHOOL
PRINCIPAL OVER THE DISMISSAL OF A CHILD, OR THE ASSERTION OF A
COMPLAINT FOR A VIOLATION OF THE HEALTH OR BUILDING CODE BY A LANDLORD
UNDER CIRCUMSTANCES WHERE THE BETTER EDUCATED CITIZEN COULD SPEAK FOR
HIMSELF."  FOR BROAD DISCUSSION OF THE MANY AND VARIED AREAS WHERE THE
POOR NEED ASSISTANCE, SEE SYMPOSIUM ON LAW OF THE POOR, 54 CALIF. L.
REV. 319 ET SEQ. (1966); DORSEN, ED., POVERTY, CIVIL LIBERTIES AND
CIVIL RIGHTS:  A SYMPOSIUM, 41 N.Y.U.L. REV. 328 (1966); CAHN & CAHN,
THE WAR ON PROVERTY:  A CIVILIAN PERSPECTIVE, 73 YALE L.J. 1317 (1964);
MCCALPIN, A REVOLUTION IN THE LAW PRACTICE?, 15 CLEV.-MAR.  L. REV. 203
(1966); CARLIN & HOWARD, LEGAL REPRESENTATION AND CLASS JUSTICE, 12
U.C.L.A.L. REV. 381 (1965); SPARER, THORKELSON & WEISS, THE LAY
ADVOCATE, 43 U. DET.  L.J. 493 (1966); LEVI, PROBLEMS RELATING TO REAL
PROPERTY, IN NATIONAL CONFERENCE ON LAW AND POVERTY PROCEEDINGS 1
(1965); DUNHAM, CONSUMER CREDIT PROBLEMS OF THE POOR - LEGAL ASSISTANCE
AS AN AID IN LAW REFORM, ID., AT 9; POLIER, PROBLEMS INVOLVING FAMILY
AND CHILD, ID., AT 14.    FN3  SEE, E.G., MATTER OF LEGAL AID SOCIETY
OF THE CITY OF ALBANY, 27 APP. DIV. 2D 687, 277 N.Y.S.2D 632; MATTER OF
CORNELL LEGAL AID CLINIC, 26 APP. DIV. 2D 790, 273 N.Y.S.2D 444;
MONAGHAN, GIDEON'S ARMY:  STUDENT SOLDIERS, 45 B.U.L. REV. 445 (1965);
BRODEN, A ROLE FOR LAW SCHOOLS IN OEO'S LEGAL SERVICES PROGRAM, 41
NOTRE DAME LAW.  898 (1966); CLEARY, LAW STUDENTS IN CRIMINAL LAW
PRACTICE, 16 DEPAUL L. REV. 1 (1966); NOTE, 12 WAYNE L. REV. 519
(1966).    FN4  SEE GENERALLY CAHN & CAHN, SUPRA, N. 2, AT 1334-1352;
CARLIN & HOWARD, SUPRA, N. 2, AT 432-436; ROSENBLUM, CONTROLLING THE
BUREAUCRACY OF THE ANTIPOVERTY PROGRAM, 31 LAW & CONTEMP.  PROB.  187,
208 (1966); NOTE, ETHICAL PROBLEMS RAISED BY THE NEIGHBORHOOD LAW
OFFICE, 41 NOTRE DAME LAW.  961 (1966); PAULSEN, LAW SCHOOLS AND THE
WAR ON POVERTY, IN NATIONAL CONFERENCE ON LAW AND POVERTY PROCEEDINGS
77 (1965). 

THE O.E.O. GUIDELINES FOR LEGAL SERVICES PROGRAMS STATES THAT THE
PROGRAMS ARE EXPECTED TO BE A COMPONENT OF A COMMUNITY ACTION AGENCY
RUN, IN PART, BY REPRESENTATIVES OF LABOR, BUSINESS, RELIGION, MINORITY
GROUPS, AND THE POOR.  (P. 5.)  RESIDENTS OF THE DEPRESSED AREA SERVED
BY THE LEGAL OFFICE ARE EXPECTED TO PARTICIPATE DIRECTLY IN THE LEGAL
SERVICES PROGRAM.  (P. 10.)  "THE POOR MUST BE REPRESENTED ON THE BOARD
OR POLICY-MAKING COMMITTEE OF THE PROGRAM TO PROVIDE LEGAL SERVICES,
JUST AS THEY ARE REPRESENTED ON THE POLICY-MAKING BODY OF THE COMMUNITY
ACTION AGENCY."  (P. 11.)  "WHENEVER POSSIBLE, THE BOARD OF THE LEGAL
SERVICES PROGRAM SHOULD INCLUDE AT LEAST ONE REPRESENTATIVE FROM EACH
OF THE AREAS OR NEIGHBORHOODS WITH A SUBSTANTIAL POPULATION TO BE
SERVED."  (P. 12.)  THE STAFF OF THE NEIGHBORHOOD LEGAL OFFICE MAY
UTILIZE THE TALENTS OF LAW SCHOOLS (P. 24) AND "MAY INCLUDE A PERSON
TRAINED IN THE FIELD OF SOCIAL WORK" (P. 29) PLUS "INTERVIEWERS,
INVESTIGATORS, LAW STUDENTS, NEIGHBORHOOD AIDES, AND TRAINED PERSONNEL
FROM OTHER DISCIPLINES."  (P. 31.) 

FN5  SEE CAHN & CAHN, WHAT PRICE JUSTICE:  THE CIVILIAN PERSPECTIVE
REVISITED, 41 NOTRE DAME LAW.  927 (1966).  "FINALLY, WITH RESPECT TO
MANPOWER, WE HAVE CREATED AN ARTIFICIAL SHORTAGE BY REFUSING TO LEARN
FROM THE MEDICAL AND OTHER PROFESSIONS AND TO DEVELOP TECHNICIANS,
NONPROFESSIONALS AND LAWYER-AIDES - MANPOWER ROLES TO CARRY OUT SUCH
FUNCTIONS AS:  INFORMAL ADVOCATE, TECHNICIAN, COUNSELLOR, SYMPATHETIC
LISTENER, INVESTIGATOR, RESEARCHER, FORM WRITER, ETC."  (P. 934.)  "THE
POSSIBILITY OF ADVANCING THE CAUSE OF JUSTICE THROUGH INCREASING LAY
INVOLVEMENT IN FACT FINDING, ADJUDICATION AND ARBITRATION, SHOULD NOT
BE SACRIFICED A PRIORI OUT OF FEAR OF ABUSE."  (P. 951.)  SEE ALSO
GINSBERG & SHIFFMAN, MANPOWER AND TRAINING PROBLEMS IN COMBATING
POVERTY, 31 LAW & CONTEMP.  PROB.  159 (1966). 

FN6  ZIMROTH, GROUP LEGAL SERVICES AND THE CONSTITUTION, 76 YALE L.J.
966, 968 (1967), REPORTS THAT THE O.E.O. LEGAL SERVICES PROGRAMS
INVOLVING LAY PERSONS HAVE ALSO SURVIVED CHALLENGES IN HOUSTON, TEXAS,
AND MODESTO, CALIFORNIA. 

FN7  SEE FRANKEL, EXPERIMENTS IN SERVING THE INDIGENT, IN NATIONAL
CONFERENCE ON LAW AND POVERTY PROCEEDINGS 69, 75-76 (1965):  "WE
LAWYERS MUST CERTAINLY CONFRONT CONSTRUCTIVELY THE IDEA THAT WHAT WE
HAVE TRADITIONALLY REGARDED AS LEGAL BUSINESS CANNOT PERMANENTLY BE SO
REGARDED.  THE NEEDS OF THE POOR FOR SERVICES IN MATTERS THAT ARE
SOMEHOW LEGAL APPEAR PRETTY CLEARLY TO BE ENORMOUS.  AMONG THOSE NEEDS
ARE MANY KINDS OF MATTERS THAT ARE NARROW, THAT ARE SPECIALIZED, AND
CAN BE ROUTINIZED.  MATTERS RELATED TO HOUSING, TO WORKMEN'S
COMPENSATION, TO CONSUMER PROBLEMS ARE A FEW THAT ONE COULD NAME  ...
.  WE SHOULD ATTEMPT TO CREATE A CLASS OF LEGAL TECHNICIANS WHO CAN
HANDLE, UNDER LAWYERS' SUPERVISION, SOME OF THE PROBLEMS THAT HAVE THUS
FAR SEEMED TO US TO BE EXCLUSIVELY THE PROVINCE OF THE LAWYER.  I THINK
WE HAVE AN IMPORTANT CREATIVE FUNCTION TO PERFORM IN TRYING TO MARK OUT
THESE AREAS WHERE LAWYERS ARE NOT REALLY NEEDED." 

SEE PAULSEN, THE LAW SCHOOLS AND THE WAR ON POVERTY, IN NATIONAL
CONFERENCE ON LAW AND POVERTY PROCEEDINGS 77, 81 (1965):  "SERVICES TO
THE POOR WILL UNDOUBTEDLY CALL FOR ADVOCACY AND ADVICE BY LAY PERSONS
AS WELL AS LAWYERS.  A LAWYER'S TIME IS COSTLY.  NOT EVERY PROBLEM
THROWN UP BY LEGAL ARRANGEMENTS REQUIRES THE SKILL AND COSTLY TIME OF A
LAW-TRAINED PERSON.  WE CAN, PERHAPS, EXPECT THE CREATION OF ADVICE
CENTERS OPERATED BY LAYMEN NOT UNLIKE BRITAIN'S CITIZEN'S ADVICE
BUREAUS." 

FN8  IN HABEAS CORPUS PROCEEDINGS, "THE PRACTICE OF A NEXT FRIEND
APPLYING FOR A WRIT IS ANCIENT AND FULLY ACCEPTED."  UNITED STATES V.
HOUSTON, 273 U. 915, 916 (C.A.2D CIR.).  IT RESTS ON THE PREMISE THAT
"WITHOUT SOME ASSISTANCE, THEIR RIGHT TO HABEAS CORPUS IN MANY
INSTANCES BECOMES EMPTY AND MEANINGLESS."  JOHNSON V. AVERY, 252 F.
SUPP. 783, 784 (D.C.M.D.)  TENN.).  THE NEXT-FRIEND DOCTRINE WAS
RECOGNIZED AT COMMON LAW AND IS GIVEN EFFECT IN MOST JURISDICTIONS
TODAY, EITHER BY STATUTE OR BY COURT DECISION.  SEE COLLINS V. TRAEGER,
27 F.2D 842, 843 (C.A. 9TH CIR.); EX PARTE DOSTAL, 243 F. 664, 668
(D.C.N.D. OHIO); STATE V. FABISINSKI, 111 FLA. 454, 461, 152 SO. 207,
209; IN RE NOWACK, 274 MICH. 544, 549, 265 N.W.  459, 461; IN RE NAHL
V. DELMORE, 49 WASH. 2D 318, 301 P.2D 161; 28 U.S.C. SEC. 2242. 

AN ARIZONA STATUTE PROVIDES THAT APPLICATION FOR HABEAS CORPUS MAY BE
MADE BY THE PERSON DETAINED "OR BY SOME PERSON IN HIS BEHALF  ...  ." 
ARIZ. REV. STAT. ANN. SEC 13-2002.  THE COURT BELOW RECOGNIZED THAT
THIS STATUTE PRECLUDED PROSECUTION OF APPELLANT FOR WRITING AND FILING
THE WRIT APPLICATION ON BEHALF OF THE INDIGENT PRISONER.  HACKIN V.
STATE, 102 ARIZ., AT 219, 427 P.2D, AT 911.  BUT THE STATUTE WAS HELD
NOT TO AUTHORIZE APPELLANT TO ARGUE THE MATTER IN COURT.  ID., AT 220,
427 P.2D, AT 912. 

FN9  "SOCIAL WORKERS IN PUBLIC ASSISTANCE MAY ALREADY BE REQUIRED TO
PRACTICE LAW AS SUBSTANTIALLY AS IF THEY WERE IN A COURTROOM.  IN
MAKING AN INITIAL DETERMINATION OF AN APPLICANT'S ELIGIBILITY, THE
PUBLIC ASSISTANCE WORKER MUST COMPLETE THE APPLICANT'S FINANCIAL
STATEMENT.  'EVERY QUESTION, OR NEARLY EVERY QUESTION, ON THE FINANCIAL
STATEMENT, IS A LEGAL QUESTION,  WHEN THE SOCIAL WORKER ADVISES, OR
EVEN DISCUSSES THE QUESTIONS OR ANSWERS, HE MAY VERY LIKELY BE GIVING
LEGAL ADVICE.'  THE PRIVATE SOCIAL WORKER WHO ADVISES AN APPLICANT THAT
HE SHOULD APPLY, HOW TO APPLY, WHAT TO ANSWER AND HOW TO APPEAL IF THE
APPLICATION IS REJECTED IS ALSO GIVING 'LEGAL' ADVICE.  WHEN HE ARGUES
WITH THE PUBLIC WORKER ON BEHALF OF THE APPLICANT, HE IS GIVING
REPRESENTATION.  WHEN AND IF HE GOES TO A HEARING ON BEHALF OF THE
APPLICANT, HE IS SURELY ENGAGING IN ADVOCACY."  SPARER, THORKELSON &
WEISS, SUPRA, N. 2, AT 499-500.  SEE ALSO MCRAE & LINDE, AN EMERGING
JOINT VENTURE: LAWYERS AND SOCIAL WORKERS, 48 J. AM. JUD.  SOC.  231
(1965); ROSENBLUM, SUPRA, N. 4, AT 208. 

FN10  SPARER, THORKELSON & WEISS, SUPRA, N. 2, AT 507. 

FN11  SUCH STATUTES HAVE ALSO BEEN UTILIZED FOR ATTACK ON ATTORNEYS
THEMSELVES WHO DEFEND LOCALLY UNPOPULAR CAUSES, SUCH AS CIVIL RIGHTS. 
SEE WASHINGTON POST, SEPT. 20, 1967, SEC A, AT 10, COL. 1, REPORTING A
LOUISIANA PROSECTUTION OF A CIVIL RIGHTS LAWYER FOR "UNAUTHORIZED
PRACTICE."  CF. NAACP V. BUTTON, 371 U.S. 415. 
..END :












MODERN LIFE INSURANCE CO. V. WOLFMAN 389 U.S. 153 


NO. 574.  DECIDED NOVEMBER 13, 1967.  - 352 MASS. 356, 225 N.E.2D 598,
APPEAL DISMISSED. 


MODERN LIFE INSURANCE CO. V. WOLFMAN. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN WOULD DISMISS THE APPEAL FOR WANT OF
JURISDICTION.  28 U.S.C. SEC 1257. 
..END :














IN RE EPSTEIN 389 U.S. 153 


NO. 649, MISC.  DECIDED NOVEMBER 13, 1967.  - MOTION DENIED. 


IN RE EPSTEIN ET AL. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF MANDAMUS IS
DENIED.  SEE SCHACKMAN V. ARNEBERGH, 387 U.S. 427. 
..END :


















GREGOIRE V. LOUISIANA 389 U.S. 154 


NO. 35, MISC.  DECIDED NOVEMBER 13, 1967.  - 249 LA. 890, 192 SO. 2D
114, APPEAL DISMISSED AND CERTIORARI DENIED. 


GREGOIRE V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT CERTIORARI SHOULD BE
GRANTED. 
..END :













NIELSEN V. NEBRASKA 389 U.S. 154 


NO. 503, MISC.  DECIDED NOVEMBER 13, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


NIELSEN V. NEBRASKA EX REL. NEBRASKA STATE BAR ASSOCIATION. 

APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WHITEHILL V. ELKINS 389 U.S. 54 


NO. 25.  ARGUED OCTOBER 16, 1967.  - DECIDED NOVEMBER 6, 1967.  - 258 F.
SUPP. 589, REVERSED. 


APPELLANT, WHO HAD BEEN OFFERED A UNIVERSITY OF MARYLAND TEACHING
POSITION, BROUGHT THIS SUIT FOR DECLARATORY RELIEF CHALLENGING THE
CONSTITUTIONALITY OF A STATE "LOYALTY OATH," WHICH HE REFUSED TO TAKE. 
THE OATH, DRAFTED BY THE ATTORNEY GENERAL AND APPROVED BY THE BOARD OF
REGENTS, CONTAINS A CERTIFICATION THAT AN APPLICANT FOR PUBLIC
EMPLOYMENT IS NOT "ENGAGED IN ONE WAY OR ANOTHER IN THE ATTEMPT TO
OVERTHROW THE GOVERNMENT  ...  BY FORCE OR VIOLENCE."  SECTION 11 OF
THE OBER ACT AUTHORIZES STATE AGENCIES TO FIX PROCEDURES TO ASCERTAIN
THAT A PROSPECTIVE EMPLOYEE IS NOT A "SUBVERSIVE PERSON," A TERM WHICH,
AS DEFINED IN SECS 1 AND 13, REACHES ONE WHO IS A MEMBER OF A
SUBVERSIVE ORGANIZATION WHICH WOULD ALTER, OVERTHROW, OR DESTROY THE
GOVERNMENT BY REVOLUTION, FORCE, OR VIOLENCE.  A THREE-JUDGE DISTRICT
COURT DISMISSED THE COMPLAINT.  HELD: 

1.  SINCE THE AUTHORITY TO PRESCRIBE OATHS IS PROVIDED BY SEC 11 OF
THE OBER ACT, WHICH IS TIED TO SECS 1 AND 13, THE OATH HERE MUST BE
CONSIDERED, NOT IN ISOLATION, BUT WITH REFERENCE TO SECS 1 AND 13.  PP.
56-57. 

2.  SECTIONS 1 AND 13 VIOLATE DUE PROCESS REQUIREMENTS OF THE
FOURTEENTH AMENDMENT, SINCE THEY ARE UNCONSTITUTIONALLY VAGUE AND
OVERBROAD BY NOT DISTINCTLY DELINEATING BETWEEN PERMISSIBLE AND
IMPERMISSIBLE CONDUCT IN THE SENSITIVE AND IMPORTANT AREA OF ACADEMIC
FREEDOM.  PP. 57-62. 

(A)  IN GERENDE V. ELECTION BOARD, 341 U.S. 56, WHICH INVOLVED
APPLICATION OF AN OATH TO CANDIDATES IN MARYLAND FOR PUBLIC OFFICE,
THIS COURT DID NOT REACH THE QUESTION NOW PRESENTED.  P. 58. 

(B)  IN THE LIGHT OF THE GLOSS PLACED UPON THE ACT BY THE MARYLAND
COURTS, IT IS UNCERTAIN WHETHER ONLY THOSE MEMBERS OF A "SUBVERSIVE"
GROUP ARE BARRED WHO SEEK TO OVERTHROW OR DESTROY THE GOVERNMENT BY
FORCE OR VIOLENCE.  THUS, A PROSPECTIVE EMPLOYEE COULD NOT KNOW, SAVE
AS HE RISKED A PERJURY PROSECUTION, WHETHER AS A MEMBER OF A GROUP
AIMING THROUGH VIOLENCE TO OVERTHROW THE GOVERNMENT HE WOULD "IN ONE
WAY OR ANOTHER" BE ENGAGED IN AN ATTEMPT AT VIOLENT OVERTHROW EVEN
THOUGH HE WAS IGNORANT OF THE GROUP'S REAL AIMS.  PP. 57-62. 

WHITEHILL V. ELKINS, PRESIDENT, UNIVERSITY OF MARYLAND, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT FOR DECLARATORY RELIEF THAT A MARYLAND TEACHER'S OATH
REQUIRED OF APPELLANT WAS UNCONSTITUTIONAL WAS HEARD BY A THREE-JUDGE
COURT AND DISMISSED.  258 F. SUPP. 589.  WE NOTED PROBABLE
JURISDICTION.  386 U.S. 906. 

APPELLANT, WHO WAS OFFERED A TEACHING POSITION WITH THE UNIVERSITY OF
MARYLAND, REFUSED TO TAKE THE FOLLOWING OATH: 

"I,-------------------, DO HEREBY (PRINT NAME - INCLUDING MIDDLE
INITIAL) CERTIFY THAT I AM NOT ENGAGED IN ONE WAY OR ANOTHER IN THE
ATTEMPT TO OVERTHROW THE GOVERNMENT OF THE UNITED STATES, OR THE STATE
OF MARYLAND, OR ANY POLITICAL SUBDIVISION OF EITHER OF THEM, BY FORCE
OR VIOLENCE. 

"I FURTHER CERTIFY THAT I UNDERSTAND THE AFOREGOING STATEMENT IS MADE
SUBJECT TO THE PENALTIES OF PERJURY PRESCRIBED IN ARTICLE 27, SECTION
439 OF THE ANNOTATED CODE OF MARYLAND (1957 EDITION)." 

THE QUESTION IS WHETHER THE OATH IS TO BE READ IN ISOLATION OR IN
CONNECTION WITH THE OBER ACT (ART. 85A, MD. ANN. CODE, 1957) WHICH BY
SECS 1 AND 13 DEFINES A "SUBVERSIVE" AS "  ...  ANY PERSON WHO COMMITS,
ATTEMPTS TO COMMIT, OR AIDS IN THE COMMISSION, OR ADVOCATES ABETS,
ADVISES OR TEACHES BY ANY MEANS ANY PERSON TO COMMIT, ATTEMPT TO
COMMIT, OR AID IN THE COMMISSION OF ANY ACT INTENDED TO OVERTHROW,
DESTROY OR ALTER, OR TO ASSIST IN THE OVERTHROW, DESTRUCTION OR
ALTERATION OF, THE CONSTITUTIONAL FORM OF THE GOVERNMENT OF THE UNITED
STATES, OR OF THE STATE OF MARYLAND, OR ANY POLITICAL SUBDIVISION OF
EITHER OF THEM, BY REVOLUTION, FORCE, OR VIOLENCE; OR WHO IS A MEMBER
OF A SUBVERSIVE ORGANIZATION OR A FOREIGN SUBVERSIVE ORGANIZATION, AS
MORE FULLY DEFINED IN THIS ARTICLE."  SECTION 1 DEFINES THE LATTER
TERMS:  "SUBVERSIVE ORGANIZATION" MEANING A GROUP THAT WOULD, INTER
ALIA, "ALTER" THE FORM OF GOVERNMENT "BY REVOLUTION, FORCE, OR
VIOLENCE"; "FOREIGN SUBVERSIVE ORGANIZATION" IS SUCH A GROUP DIRECTED,
DOMINATED, OR CONTROLLED BY A FOREIGN GOVERNMENT WHICH ENGAGES IN SUCH
ACTIVITIES. 

THE OATH WAS PREPARED BY THE ATTORNEY GENERAL AND APPROVED BY THE
BOARD OF REGENTS THAT HAS EXCLUSIVE MANAGEMENT OF THE UNIVERSITY.  IT
IS CONCEDED THAT THE BOARD HAD AUTHORITY TO PROVIDE AN OATH, AS SEC 11
OF THE ACT DIRECTS EVERY AGENCY OF THE STATE WHICH APPOINTS, EMPLOYS,
OR SUPERVISES OFFICIALS OR EMPLOYEES TO ESTABLISH PROCEDURES DESIGNED
TO ASCERTAIN BEFORE A PERSON IS APPOINTED OR EMPLOYED THAT HE OR SHE
"IS NOT A SUBVERSIVE PERSON."  AND THAT TERM IS, AS NOTED, DEFINED BY
SECS 1 AND 13.  OUR CONCLUSION IS THAT, SINCE THE AUTHORITY TO
PRESCRIBE OATHS IS PROVIDED BY SEC 11 OF THE ACT AND SINCE IT IS IN
TURN TIED TO SECS 1 AND 13, WE MUST CONSIDER THE OATH WITH REFERENCE TO
SECS 1 AND 13, NOT IN ISOLATION.  NOR CAN WE ASSUME THAT THE BOARD OF
REGENTS MEANT TO ENCOMPASS LESS THAN THE OBER ACT, AS CONSTRUED, SOUGHT
TO COVER. 

IF THE FEDERAL CONSTITUTION IS OUR GUIDE, A PERSON WHO MIGHT WISH TO
"ALTER" OUR FORM OF GOVERNMENT MAY NOT BE CAST INTO THE OUTER
DARKNESS.  FOR THE CONSTITUTION PRESCRIBES THE METHOD OF "ALTERATION"
BY THE AMENDING PROCESS IN ARTICLE V; AND WHILE THE PROCEDURE FOR
AMENDING IT IS RESTRICTED, THERE IS NO RESTRAINT ON THE KIND OF
AMENDMENT THAT MAY BE OFFERED.  MOREOVER, THE FIRST AMENDMENT, WHICH
PROTECTS A CONTROVERSIAL AS WELL AS A CONVENTIONAL DIALOGUE
(TERMINIELLO V. CHICAGO, 337 U.S. 1), IS AS APPLICABLE TO THE STATES AS
IT IS TO THE FEDERAL GOVERNMENT; AND IT EXTENDS TO PETITIONS FOR
REDRESS OF GRIEVANCES (EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 235) AS
WELL AS TO ADVOCACY AND DEBATE.  SO IF SECS 1 AND 13 OF THE OBER ACT
ARE THE FRAME OF REFERENCE IN WHICH THE CHALLENGED OATH IS TO BE
ADJUDGED, WE HAVE IMPORTANT QUESTIONS TO RESOLVE. 

WE ARE ASKED TO TREAT SECS 1 AND 13 AS IF THEY BARRED ONLY THOSE WHO
SEEK TO OVERTHROW OR DESTROY THE GOVERNMENT BY FORCE OR VIOLENCE. 
REFERENCE IS MADE TO GERENDE V. ELECTION BOARD, 341 U.S. 56, WHERE, IN
CONSIDERING THE DEFINITION OF "SUBVERSIVE" PERSON APPLICABLE TO SEC 15
OF THE ACT, GOVERNING CANDIDATES FOR OFFICE, WE ACCEPTED THE
REPRESENTATION OF THE ATTORNEY GENERAL THAT HE WOULD ADVISE THE PROPER
AUTHORITIES IN MARYLAND TO TAKE AND ADOPT THE NARROWER VERSION OF THE
TERM "SUBVERSIVE."  THE COURT OF APPEALS OF MARYLAND HAD INDICATED IN
SHUB V. SIMPSON, 196 MD. 177, 76 A.2D 332, THAT THE PURPOSE OF THE ACT
WAS TO REACH THAT GROUP, AND THAT THE WORDS "REVOLUTION, FORCE, OR
VIOLENCE" IN SEC 1 DID NOT INCLUDE A PEACEFUL REVOLUTION BUT ONE
ACCOMPLISHED BY FORCE OR VIOLENCE.  ID., AT 190-191, 76 A.2D, AT 337
338.  IN THAT VIEW THE "ALTERATION" DEFINED WOULD BE AN ALTERATION BY
FORCE AND VIOLENCE.  THAT CONSTRUCTION HAD NOT YET BEEN FASHIONED INTO
AN OATH OR CERTIFICATE WHEN GERENDE REACHED US.  THAT CASE INVOLVED AN
ATTEMPT BY A CANDIDATE FOR PUBLIC OFFICE IN MARYLAND TO REQUIRE THE
ELECTION OFFICIALS TO DISPENSE WITH AN OATH THAT INCORPORATED THE
STATUTORY LANGUAGE.  THE COURT OF APPEALS REFUSED THE RELIEF ASKED.  WE
REFERRED TO THE NARROW CONSTRUCTION OF SECS 1 AND 15 GIVEN IN THE SHUB
CASE SAYING: 

"WE READ THIS DECISION TO HOLD THAT TO OBTAIN A PLACE ON A MARYLAND
BALLOT A CANDIDATE NEED ONLY MAKE OATH THAT HE IS NOT A PERSON WHO IS
ENGAGED 'IN ONE WAY OR ANOTHER IN THE ATTEMPT TO OVERTHROW THE
GOVERNMENT BY FORCE OR VIOLENCE,' AND THAT HE IS NOT KNOWINGLY A MEMBER
OF AN ORGANIZATION ENGAGED IN SUCH AN ATTEMPT.  196 MD. AT 192, 76 A.2D
AT 338.  AT THE BAR OF THIS COURT THE ATTORNEY GENERAL OF THE STATE OF
MARYLAND DECLARED THAT HE WOULD ADVISE THE PROPER AUTHORITIES TO ACCEPT
AN AFFIDAVIT IN THESE TERMS AS SATISFYING IN FULL THE STATUTORY
REQUIREMENT.  UNDER THESE CIRCUMSTANCES AND WITH THIS UNDERSTANDING,
THE JUDGMENT OF THE MARYLAND COURT OF APPEALS IS AFFIRMED."  341 U.S.,
AT 56-57. 

AS WE SAID IN BAGGETT V. BULLITT, 377 U.S. 360, 368, N. 7, WE DID NOT
PASS UPON OR APPROVE THE STATUTORY DEFINITION OF A "SUBVERSIVE" PERSON
IN THE GERENDE CASE.  RATHER WE ACCEPTED THE NARROWING CONSTRUCTION
TENDERED BY THE ATTORNEY GENERAL DURING ORAL ARGUMENT SO AS TO AVOID
THE CONSTITUTIONAL ISSUE THAT WAS ARGUED. 

IT IS, HOWEVER, URGED THAT SEC 18 OF THE ACT WHICH CONTAINS A
SEVERABILITY CLAUSE MAKES IT POSSIBLE FOR THE MARYLAND ATTORNEY GENERAL
AND FOR US TO SEPARATE THE WHEAT FROM THE CHAFF THAT MAY BE IN SECS 1
AND 13.  THE DISTRICT COURT FOUND MERIT IN THE POINT.  258 F. SUPP., AT
596.  BUT OUR DIFFICULTY GOES DEEPER.  AS WE HAVE SAID IN LIKE
SITUATIONS, THE OATH REQUIRED MUST NOT BE SO VAGUE AND BROAD AS TO MAKE
MEN OF COMMON INTELLIGENCE SPECULATE AT THEIR PERIL ON ITS MEANING. 
BAGGETT V. BULLITT, SUPRA; ELFBRANDT V. RUSSELL, 384 U.S. 11; KEYISHIAN
V. BOARD OF REGENTS, 385 U.S. 589.  AND SO WE ARE FACED WITH THE KIND
OF PROBLEM WHICH WE THOUGHT WE HAD AVOIDED IN GERENDE. 

AS WE HAVE SEEN, SECS 1 AND 13 REACH (1) THOSE WHO WOULD "ALTER" THE
FORM OF GOVERNMENT "BY REVOLUTION, FORCE, OR VIOLENCE" AND (2) THOSE
WHO ARE MEMBERS OF A SUBVERSIVE ORGANIZATION OR A FOREIGN SUBVERSIVE
ORGANIZATION. 

THE PRESCRIBED OATH REQUIRES, UNDER THREAT OF PERJURY, A STATEMENT
THAT THE APPLICANT IS NOT ENGAGED "IN ONE WAY OR ANOTHER" IN AN ATTEMPT
TO OVERTHROW THE GOVERNMENT BY FORCE OR VIOLENCE.  THOUGH WE ASSUME
ARGUENDO THAT THE ATTORNEY GENERAL AND THE BOARD OF REGENTS WERE
AUTHORIZED SO TO CONSTRUE THE ACT AS TO PRESCRIBE A NARROW OATH (1)
THAT EXCLUDED "ALTERATION" OF THE GOVERNMENT BY PEACEFUL "REVOLUTION"
AND (2) THAT EXCLUDED ALL SPECIFIC REFERENCE TO MEMBERSHIP IN
SUBVERSIVE GROUPS, WE STILL ARE BESET WITH DIFFICULTIES.  WOULD A
MEMBER OF A GROUP THAT WAS OUT TO OVERTHROW THE GOVERNMENT BY FORCE OR
VIOLENCE BE ENGAGED IN AN ATTEMPT "IN ONE WAY OR ANOTHER" WITHIN THE
MEANING OF THE OATH, EVEN THOUGH HE WAS IGNORANT OF THE REAL AIMS OF
THE GROUP AND WHOLLY INNOCENT OF ANY ILLICIT PURPOSE?  WE DO NOT KNOW;
NOR COULD A PROSPECTIVE EMPLOYEE KNOW, SAVE AS HE RISKED A PROSECUTION
FOR PERJURY. 

WE ARE IN THE FIRST AMENDMENT FIELD.  THE CONTINUING SERVEILLANCE
(FN1)  WHICH THIS TYPE OF LAW PLACES ON TEACHERS IS HOSTILE TO ACADEMIC
FREEDOM.  AS WE SAID IN SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 250: 

"THE ESSENTIALITY OF FREEDOM IN THE COMMUNITY OF AMERICAN
UNIVERSITIES IS ALMOST SELF-EVIDENT.  NO ONE SHOULD UNDERESTIMATE THE
VITAL ROLE IN A DEMOCRACY THAT IS PLAYED BY THOSE WHO GUIDE AND TRAIN
OUR YOUTH.  TO IMPOSE ANY STRAITJACKET UPON THE INTELLECTUAL LEADERS IN
OUR COLLEGES AND UNIVERSITIES WOULD IMPERIL THE FUTURE OF OUR NATION. 
NO FIELD OF EDUCATION IS SO THOROUGHLY COMPREHENDED BY MAN THAT NEW
DISCOVERIES CANNOT YET BE MADE.  PARTICULARLY IS THAT TRUE IN THE
SOCIAL SCIENCES, WHERE FEW, IF ANY, PRINCIPLES ARE ACCEPTED AS
ABSOLUTES.  SCHOLARSHIP CANNOT FLOURISH IN AN ATMOSPHERE OF SUSPICION
AND DISTRUST.  TEACHERS AND STUDENTS MUST ALWAYS REMAIN FREE TO
INQUIRE, TO STUDY AND TO EVALUATE, TO GAIN NEW MATURITY AND
UNDERSTANDING; OTHERWISE OUR CIVILIZATION WILL STAGNATE AND DIE." 

THE RESTRAINTS ON CONSCIENTIOUS TEACHERS ARE OBVIOUS.  AS WE NOTED IN
THE ELFBRANDT CASE, EVEN ATTENDANCE AT AN INTERNATIONAL CONFERENCE
MIGHT BE A TRAP FOR THE INNOCENT IF THAT CONFERENCE WERE PREDOMINANTLY
COMPOSED OF THOSE WHO WOULD OVERTHROW THE GOVERNMENT BY FORCE OR
VIOLENCE.  384 U.S., AT 16-17.  "JURIES MIGHT CONVICT THOUGH THE
TEACHER DID NOT SUBSCRIBE TO THE WRONGFUL AIMS OF THE ORGANIZATION." 
ID., AT 17. 

IN SUM, WE READ THE OATH AS AN INTEGRAL PART OF THE OBER ACT; AND WE
UNDERTAKE TO READ SECS 1 AND 13 OF THAT ACT IN LIGHT OF THE GLOSS THAT
THE MARYLAND COURTS HAVE PLACE ON IT.  WE KNOW THAT THE SHUB CASE SAYS
THAT "A PERSON WHO ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE
UNITED STATES ...  THROUGH FORCE OR VIOLENCE COULD SCARCELY IN GOOD
FAITH, TAKE THE CONSTITUTIONAL OATH OF OFFICE ... ."  196 MD., AT 190,
76 A.2D, AT 337.  YET THAT CASE DOES LITTLE MORE THAN AFFORD THE BASIS
FOR ARGUMENT THAT MEMBERSHIP IN A SUBVERSIVE ORGANIZATION MEANS THAT
THE MEMBER MUST ADVOCATE A VIOLENT OVERTHROW.  THIS, HOWEVER, IS A
SPECULATION, NOT CERTAINTY.  ANOTHER MARYLAND CASE BEARING ON THE
QUESTION IS CHARACTER COMMITTEE V. MANDRAS, 233 MD. 285, 196 A.2D 630. 
THERE AN APPLICANT FOR ADMISSION TO THE MARYLAND BAR ANSWERED "NO" TO
THE QUESTION "ARE YOU NOW OR HAVE YOU EVER BEEN A SUBVERSIVE PERSON AS
DEFINED BY THE OBER ACT?"  HE HAD APPARENTLY AT ONE TIME BEEN A MEMBER
OF THE COMMUNIST PARTY.  AT A HEARING HE TESTIFIED HE HAD JOINED THE
PARTY BECAUSE HE WAS INTERESTED IN THE CANDIDACY OF HENRY WALLACE AND
IN THE CAUSE OF CIVIL LIBERTIES; BUT HE DENIED HE HAD BEEN A SUBVERSIVE
PERSON OR THAT HE HAD ADVOCATED VIOLENT OVERTHROW OF THE GOVERNMENT. 
THE COURT OF APPEALS AFFIRMED THE BOARD OF LAW EXAMINERS, FINDING THAT
THE APPLICANT WAS NOT A SUBVERSIVE PERSON.   SO IT CAN BE ARGUED THAT
PASSIVE MEMBERSHIP AS A MATTER OF MARYLAND LAW DOES NOT MAKE A PERSON A
SUBVERSIVE.  YET, AS WE READ SECS 1 AND 13 OF THE OBER ACT, THE
ALTERATION CLAUSE AND MEMBERSHIP CLAUSE ARE STILL BEFOGGED.  (FN2)  THE
LINES BETWEEN PERMISSIBLE AND IMPERMISSIBLE CONDUCT ARE QUITE
INDISTINCT.  PRECISION AND CLARITY ARE NOT PRESENT.  RATHER WE FIND AN
OVERBREADTH THAT MAKES POSSIBLE OPPRESSIVE OR CAPRICIOUS APPLICATION AS
REGIMES CHANGE.  THAT VERY THREAT, AS WE SAID IN ANOTHER CONTEXT (NAACP
V. BUTTON, 371 U.S. 415, 432-433), MAY DETER THE FLOWERING OF ACADEMIC
FREEDOM AS MUCH AS SUCCESSIVE SUITS FOR PERJURY. 

LIKE THE OTHER OATH CASES MENTIONED, WE HAVE ANOTHER CLASSIC EXAMPLE
OF THE NEED FOR "NARROWLY DRAWN" LEGISLATION (CANTWELL V. CONNECTICUT,
310 U.S. 296, 311) IN THIS SENSITIVE AND IMPORTANT FIRST AMENDMENT
AREA.  REVERSED. 

FN1  THERE IS NOT ONLY THE PROVISION OF PERJURY PRESCRIBED IN SEC 11,
BUT ALSO SEC 14 WHICH PROVIDES IN PART THAT "REASONABLE GROUNDS ON ALL
THE EVIDENCE TO BELIEVE THAT ANY PERSON IS A SUBVERSIVE PERSON, AS
DEFINED IN THIS ARTICLE, SHALL BE CAUSE FOR DISCHARGE" OF THE
EMPLOYEE.  SEE ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 123, 175, N.
1 (CONCURRING OPINION). 

FN2  ART. 15, SEC 11, OF THE MARYLAND CONSTITUTION READS: 

"NO PERSON WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF THE STATE OF
MARYLAND THROUGH FORCE OR VIOLENCE SHALL BE ELIGIBLE TO HOLD ANY
OFFICE, BE IT ELECTIVE OR APPOINTIVE, OR ANY OTHER POSITION OF PROFIT
OR TRUST IN THE GOVERNMENT OF OR IN THE ADMINISTRATION OF THE BUSINESS
OF THIS STATE OR OF ANY COUNTY, MUNICIPALITY OR OTHER POLITICAL
SUBDIVISION OF THIS STATE." 

SHUB TELLS US THAT THE OBER ACT WAS ENACTED PURSUANT TO THIS STATE
CONSTITUTIONAL PROVISION.  196 MD., AT 192, 76 A.2D, AT 338.  OUR
ATTENTION IS NOT DRAWN TO, NOR HAVE WE FOUND, ANY SEVERABILITY CLAUSE
APPLICABLE TO THIS CONSTITUTIONAL PROVISION.  IT IS CERTAINLY DUBIOUS,
THEN WHETHER THE SEVERABILITY CLAUSE OF THE OBER ACT CAN OPERATE TO
"SEVER" THE MEMBERSHIP CLAUSE IN THE DEFINITION OF SUBVERSIVE PERSON SO
THAT IT READS MORE NARROWLY THAN THE CONSTITUTIONAL PROVISION UPON
WHICH THE OBER ACT RESTS.    MR. JUSTICE HARLAN, WHOM MR. JUSTICE
STEWART AND MR. JUSTICE WHITE JOIN, DISSENTING. 

MARYLAND WILL DOUBTLESS BE SURPRISED TO LEARN THAT ITS METICULOUS
EFFORTS TO CONFORM THE STATE "LOYALTY OATH" TO THE REQUIREMENTS OF
GERENDE V. ELECTION BOARD, 341 U.S. 56, HAVE BEEN TO NO AVAIL.   IT
WILL ALSO BE ENTITLED TO FEEL BAFFLED BY AN OPINION WHICH, WHILE
RECOGNIZING THE CONTINUING AUTHORITY OF GERENDE, UNDERTAKES TO BYPASS
THAT DECISION BY A PROCESS OF REASONING THAT DEFIES ANALYSIS. 

APPELLANT WHITEHILL WAS DENIED EMPLOYMENT IN THE STATE UNIVERSITY AS
A TEMPORARY LECTURER BY REASON OF HIS REFUSAL TO SIGN AN OATH THAT MORE
THAN MEETS THE REQUIREMENTS OF GERENDE.  HE WAS ASKED ONLY WHETHER HE
IS NOW, IN ONE WAY OR ANOTHER ENGAGED IN AN ATTEMPT TO OVERTHROW THE
GOVERNMENT BY FORCE OF VIOLENCE.  (FN1)  REFERENCES TO INTERNATIONAL
CONFERENCES, CONTROVERSIAL DISCUSSIONS, SUPPORT OF MINORITY CANDIDATES,
ACADEMIC FREEDOM AND THE LIKE CANNOT DISGUISE THE FACT THAT WHITEHILL
WAS ASKED SIMPLY TO DISCLAIM ACTUAL, PRESENT ACTIVITY, AMOUNTING IN
EFFECT TO TREASONABLE CONDUCT.  ALLUSIONS TO THE CONSTITUTIONAL
AMENDING PROCESS CANNOT OBSCURE THE FACT THAT THIS OATH MAKES NO
REFERENCE TO "ALTERATION" OR OUR FORM OF GOVERNMENT OR TO "BELIEVING
IN" OR "BEING A MEMBER OF" ANYTHING WHATSOEVER.  THE OATH ITSELF, THEN,
IN NO WAY VIOLATES, JEOPARDIZES, OR BECLOUDS APPELLANT'S FREEDOM OF
SPEECH OR OF ASSOCIATION.  SO MUCH, INDEED, THE COURT'S OPINION APPEARS
TO CONCEDE. 

THE COURT CONCLUDES, HOWEVER, THAT THE OATH MUST BE READ "IN
CONNECTION WITH" CERTAIN SECTIONS OF THE OBER LAW BECAUSE, AS A STATE
MATTER, THE AUTHORITY OF THE BOARD OF REGENTS TO REQUIRE AN OATH
DERIVES FROM THAT LAW.  THE COURT DOES NOT PAUSE TO TELL US WHAT THE
"CONNECTION" IS OR TO EXPLAIN HOW IT SERVES TO INVALIDATE THE
UNAMBIGUOUS OATH REQUIRED OF THIS APPELLANT.  ON THE ONE HAND, IT IS
PLAIN, AS THE COURT ARTISTICALLY AVOIDS CONCEDING, THAT THE ONLY EFFECT
OF THE LAW ON THIS APPELLANT IS TO DENY HIM STATE EMPLOYMENT IF HE
REFUSES TO SIGN AN OATH WHICH, IN ITSELF, HE CAN HAVE NO CONSTITUTIONAL
OBJECTION TO SIGNING.  ON THE OTHER HAND, NOWHERE DOES THE COURT
SUGGEST THAT THE CHARACTER OF THE OATH ITSELF IS ALTERED BY ANY
LANGUAGE IN THE STATUTE AUTHORIZING THE REGENTS TO IMPOSE IT.  THE OATH
DOES NOT REFER TO THE STATUTE  (FN2)  OR OTHERWISE INCORPORATE IT BY
REFERENCE.  IT CONTAINS NO TERMS THAT ARE FURTHER DEFINED IN THE
STATUTE.  IN SHORT, THE OATH MUST BE JUDGED ON ITS OWN BOTTOM. 

THE ONLY THING THAT DOES SHINE THROUGH THE OPINION OF THE MAJORITY IS
THAT ITS MEMBERS DO NOT LIKE LOYALTY OATHS.  BELIEVING THAT IT IS NOT
WITHIN THE PROVINCE OF THIS COURT TO PASS UPON THE WISDOM OR UNWISDOM
OF MARYLAND'S POLICY IN THIS REGARD, AND FINDING NOTHING
UNCONSTITUTIONAL ABOUT THE OATH TENDERED TO THIS APPELLANT, I WOULD
AFFIRM THE JUDGMENT OF THE COURT BELOW. 

FN1  THE OATH DID NOT EVEN INCLUDE THE LIMITED SORT OF "MEMBERSHIP"
CLAUSE ALSO APPROVED IN GERENDE.  SEE THE COURT'S OPINION, ANTE, AT 55
56, 57-68. 

FN2  THE DOCUMENT SUBMITTED TO APPELLANT FOR HIS SIGNATURE DID
CONTAIN THE NOTATION CUSTOMARY TO GOVERNMENT DOCUMENTS OF THE AUTHORITY
UNDER WHICH IT WAS PROMULGATED. 
..END :













LONGSHOREMEN V. MARINE TRADE ASSN. 389 U.S. 64 


NO. 34.  ARGUED OCTOBER 12 AND 16, 1967.  - DECIDED NOVEMBER 6, 1967.* -
365 F.2D 295, 368 F.2D 932, REVERSED. 

*TOGETHER WITH NO. 78, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,
LOCAL 1291, ET AL. V. PHILADELPHIA MARINE TRADE ASSOCIATION, ALSO ON
CERTIORARI TO THE SAME COURT. 


A DISPUTE BETWEEN PETITIONER LONGSHOREMEN'S UNION AND RESPONDENT, AN
EMPLOYERS' ASSOCIATION, OVER THE INTERPRETATION OF A "SET-BACK," OR
POSTPONEMENT OF HOURS OF WORK, PROVISION IN A COLLECTIVE BARGAINING
AGREEMENT, WAS SUBMITTED TO ARBITRATION AS PROVIDED IN THE AGREEMENT. 
ON JUNE 11, 1965, THE ARBITRATOR RULED THAT RESPONDENT'S INTERPRETATION
WAS CORRECT.  RESPONDENT SOUGHT ORDERS FROM THE DISTRICT COURT
ENFORCING THE ARBITRATOR'S AWARD, FOLLOWING WORK STOPPAGES IN JULY AND
SEPTEMBER 1965 BY STEVEDORES WHO DISPUTED THE MEANING OF THE SET-BACK
PROVISION.  THE COURT EXPRESSED NO OPINION ON THE UNION'S CONTENTIONS
THAT THE LATER DISPUTES WERE DISTINGUISHABLE FROM THE ONE INVOLVED IN
THE ARBITRATOR'S AWARD, BUT ON SEPTEMBER 15 MERELY ENTERED A DECREE
REQUIRING THAT THE AWARD "BE SPECIFICALLY ENFORCED," AND ORDERING THE
UNION "TO COMPLY WITH AND TO ABIDE BY THE SAID AWARD."  ALTHOUGH THE
UNION'S COUNSEL NOTED THAT THE AWARD CONTAINED ONLY AN ABSTRACT
PROPOSITION AND NO COMMAND CAPABLE OF "ENFORCEMENT," COUNSEL'S REQUEST
FOR CLARIFICATION OF THE COURT'S ORDER WAS UNAVAILING.  WHEN FURTHER
SET-BACK DISPUTES DISRUPTED WORK IN FEBRUARY 1966, THE COURT ISSUED A
RULE TO SHOW CAUSE WHY THE UNION AND ITS OFFICERS SHOULD NOT BE HELD IN
CONTEMPT FOR VIOLATING THE SEPTEMBER 15 ORDER.  WITHOUT EXPLAINING
PRECISELY WHAT ACTS VIOLATED THE ORDER, THE JUDGE HELD THE FEBRUARY
STRIKE "ILLEGAL  ...  UNDER THE CIRCUMSTANCES," FOUND THE UNION IN
CIVIL CONTEMPT, AND FINED THE UNION $100,000 PER DAY.  THE COURT OF
APPEALS AFFIRMED THE ORIGINAL DECREE AND THE CONTEMPT ORDER.  HELD:
SINCE THE DISTRICT COURT'S DECREE, WHICH WAS AN "ORDER GRANTING AN
INJUNCTION" WITHIN THE MEANING OF FED. RULE CIV. PROC. 65(D), DID NOT
COMPLY WITH THE RULE'S REQUIREMENT THAT IT STATE IN SPECIFIC TERMS THE
ACTS THAT IT COMMANDS OR PROHIBITS, NEITHER IT NOR THE DECISION HOLDING
THE UNION IN CONTEMPT CAN STAND.  PP. 74-76. 

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1291 V. PHILADELPHIA
MARINE TRADE ASSOCIATION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARISE FROM A SERIES OF STRIKES ALONG THE PHILADELPHIA
WATERFRONT.  THE PETITIONER UNION, REPRESENTING THE LONGSHOREMEN
INVOLVED IN THOSE STRIKES, HAD ENTERED INTO A COLLECTIVE BARGAINING
AGREEMENT IN 1959 WITH THE RESPONDENT, AN ASSOCIATION OF EMPLOYERS IN
THE PORT OF PHILADELPHIA.  THE AGREEMENT INCLUDED PROVISIONS FOR
COMPENSATING LONGSHOREMEN WHO ARE TOLD AFTER THEY REPORT FOR DUTY THAT
THEY WILL NOT BE NEEDED UNTIL THE AFTERNOON.  (FN1) THE UNION CONSTRUED
THOSE "SET-BACK" PROVISIONS TO MEAN THAT, AT LEAST IN SOME SITUATIONS,
LONGSHOREMEN WHOSE EMPLOYMENT WAS POSTPONED BECAUSE OF UNFAVORABLE
WEATHER CONDITIONS WERE ENTITLED TO FOUR HOURS' PAY; THE ASSOCIATION
INTERPRETED THE PROVISIONS TO GUARANTEE NO MORE THAN ONE HOUR'S PAY
UNDER SUCH CIRCUMSTANCES. 

IN APRIL 1965, WHEN THIS DISAGREEMENT FIRST BECAME APPARENT, THE
PARTIES FOLLOWED THE GRIEVANCE PROCEDURE ESTABLISHED BY THEIR
COLLECTIVE BARGAINING CONTRACT AND SUBMITTED THE MATTER TO AN
ARBITRATOR FOR BINDING SETTLEMENT.  (FN2)  ON JUNE 11 THE ARBITRATOR
RULED THAT THE ASSOCIATIONS READING OF THE SET-BACK PROVISIONS WAS
CORRECT.  (FN3)  IN JULY HOWEVER, A GROUP OF UNION MEMBERS REFUSED TO
UNLOAD A SHIP UNLESS THEIR EMPLOYER WOULD PROMISE FOUR HOURS' PAY FOR
HAVING SET BACK THEIR STARTING TIME FROM 8 A.M. TO 1 P.M.  THE UNION
SOUGHT TO ARBITRATE THE MATTER, BUT THE ASSOCIATION VIEWED THE ORIGINAL
ARBITRATOR'S DECISION AS CONTROLLING AND INSTITUTED PROCEEDINGS IN THE
DISTRICT COURT TO ENFORCE IT.  THE COMPLAINT ALLEGED THAT THE UNION HAD
REFUSED "TO ABIDE BY THE TERMS OF THE ARBITRATOR'S AWARD  ...
RESULTING IN SERIOUS LOSS AND DAMAGE TO THE EMPLOYER  ...  AND TO THE
PORT OF PHILADELPHIA."  THIS REFUSAL, THE COMPLAINT CHARGED,
CONSTITUTED "A BREACH OF THE APPLICABLE PROVISIONS OF THE CURRENT
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE P.M.T.A. AND THE UNION." 
THE COMPLAINT CONCLUDED WITH A PRAYER "THAT THE COURT SET AN IMMEDIATE
HEARING AND ENTER AN ORDER ENFORCING THE ARBITRATOR'S AWARD, AND THAT
PLAINTIFF MAY HAVE SUCH OTHER AND FURTHER RELIEF AS MAY BE JUSTIFIED." 

BEFORE THE COURT COULD TAKE ANY ACTION, THE EMPLOYER HAD MET THE
UNION'S DEMANDS AND THE MEN HAD RETURNED TO WORK.  THE DISTRICT COURT
HEARD EVIDENCE IN ORDER TO "PUT THE FACTS ON RECORD" BUT CONCLUDED THAT
THE CASE WAS "MOOT AT THE MOMENT" AND DECIDED SIMPLY TO "KEEP THE
MATTER IN HAND AS A JUDGE AND TAKE JURISDICTION  ...  IF ANYTHING
ARISES."  A SIMILAR SITUATION DID IN FACT ARISE - THIS TIME IN
SEPTEMBER.  AGAIN, BEFORE THE DISTRICT COURT COULD ACT, THE WORK
STOPPAGE ENDED.  THE ASSOCIATION NONETHELESS REQUESTED: 

"AN ORDER  ...  TO MAKE IT PERFECTLY CLEAR TO THE UNION THAT IT IS
REQUIRED TO COMPLY WITH THE ARBITRATOR'S AWARD BECAUSE WE CANNOT
OPERATE IN THIS PORT IF WE ARE GOING TO BE CONTINUALLY HARASSED BY THE
UNION IN TAKING THE POSITION THAT THEY ARE NOT GOING TO ABIDE BY AN
ARBITRATOR'S AWARD  ... ." 

COUNSEL FOR THE UNION REJECTED THAT CHARACTERIZATION OF ITS
POSITION.  HE SUBMITTED THAT THE SET-BACK DISPUTES OF JULY AND
SEPTEMBER WERE DISTINGUISHABLE FROM THE ONE WHICH OCCURRED IN APRIL,
AND THAT THE ARBITRATOR'S DECISION OF JUNE 11, 1965, RESOLVING THE
APRIL CONTROVERSY, WAS NOT CONTROLLING.  (FN4)  THE DISTRICT COURT
EXPRESSED NO OPINION ON ANY OF THESE CONTENTIONS BUT SIMPLY ENTERED A
DECREE, DATED SEPTEMBER 15, 1965, REQUIRING THAT THE ARBITRATOR'S AWARD
"ISSUED ON JULY 11, 1965, BE SPECIFICALLY ENFORCED."  THE DECREE
ORDERED THE UNION "TO COMPLY WITH AND TO ABIDE BY THE SAID AWARD."  IT
CONTAINED NO OTHER COMMAND.  (FN5) 

WHEN THE DISTRICT COURT FIRST INDICATED THAT IT WOULD ISSUE SUCH A
DECREE, COUNSEL FOR THE UNION ASKED THE COURT FOR CLARIFICATION: 

"MR FREEDMAN:  WELL, WHAT DOES IT MEAN, YOUR HONOR? 

"THE COURT:  THAT YOU WILL HAVE TO DETERMINE, WHAT IT MEANS. 

"MR. FREEDMAN:  WELL, I AM ASKING.  I HAVE TO GIVE MY CLIENT ADVICE
AND I DON'T KNOW WHAT IT MEANS.  I AM ASKING YOUR HONOR TO TELL ME WHAT
IT MEANS.  IT DOESN'T: 

"THE COURT:  YOU HANDLED THE CASE.  YOU KNOW ABOUT IT  ...  . 

"MR. FREEDMAN:  I AM TELLING YOU VERY FRANKLY NOW I DON'T KNOW WHAT
THIS ORDER MEANS, THIS PROPOSED ORDER.  IT SAYS, 'ENFORCEMENT OF THE
AWARD.'  NOW, JUST WHAT DOES IT MEAN?  ...  THE ARBITRATION ...
INVOLVED AN INTERPRETATION OF THE CONTRACT UNDER A SPECIFIC SET OF
FACTS  ...  . NOW, HOW DO YOU ENFORCE IT?  THAT CASE IS OVER AND DONE
WITH.  THESE ARE NEW CASES.  YOUR HONOR IS CHANGING THE CONTRACT OF THE
PARTIES WHEN YOU FORECLOSE THEM FROM GOING TO ARBITRATION ON THIS POINT
AGAIN." 

"THE COURT:  THE COURT HAS ACTED.  THIS IS THE ORDER. 

"MR. FREEDMAN:  WELL, WON'T YOUR HONOR TELL ME WHAT IT MEANS? 

"THE COURT:  YOU READ THE ENGLISH LANGUAGE AND I DO." 

ALTHOUGH THE ASSOCIATION HAD EXPRESSLY TOLD THE DISTRICT COURT THAT
IT WAS "NOT SEEKING TO ENJOIN WORK STOPPAGES," COUNSEL FOR THE UNION
ASKED WHETHER THE DECREE MIGHT NONETHELESS HAVE THAT EFFECT: 

"MR. FREEDMAN:  ...  DOES THIS MEAN THAT THE UNION CANNOT ENGAGE IN A
STRIKE OR REFUSE TO WORK OR PICKET? 

"THE COURT:  YOU KNOW WHAT THE ARBITRATION WAS ABOUT.  YOU KNOW THE
RESULT OF THE ARBITRATION. 

     *         *          *         *         * 

"I HAVE SIGNED THE ORDER.  ANYTHING ELSE TO COME BEFORE US? 

"MR. FREEDMAN:  I KNOW, BUT YOUR HONOR IS LEAVING ME IN THE SKY.  I
DON'T KNOW WHAT TO SAY TO MY CLIENT. 

"MR. SCANLAN:  NO, I HAVE NOTHING FURTHER, YOUR HONOR. 

"THE COURT:  THE HEARING IS CLOSED." 

THUS, DESPITE COUNSEL'S REPEATED REQUESTS, THE DISTRICT JUDGE
STEADFASTLY REFUSED TO EXPLAIN THE MEANING OF THE ORDER. 

WHEN FURTHER SET-BACK DISPUTES DISRUPTED WORK THROUGHOUT THE PORT OF
PHILADELPHIA IN LATE FEBRUARY 1966, THE DISTRICT COURT ISSUED A RULE TO
SHOW CAUSE WHY THE UNION AND ITS OFFICERS SHOULD NOT BE HELD IN
CONTEMPT FOR VIOLATING THE ORDER OF SEPTEMBER 15.  THROUGHOUT THE
CONTEMPT HEARING HELD ON MARCH 1, 1966, COUNSEL FOR THE UNION SOUGHT
WITHOUT SUCCESS TO DETERMINE PRECISELY WHAT ACTS BY THE UNION, ITS
OFFICERS, OR ITS MEMBERS WERE ALLEGED TO HAVE VIOLATED THE COURT'S
ORDER.  "WE HAVE A RIGHT TO KNOW," HE SAID, "WHAT IT IS THAT WE ARE
BEING ACCUSED OF  ...  ."  THE DISTRICT JUDGE REFUSED TO COMMENT. 
(FN6)  AT SOME POINTS IN THE PROCEEDINGS IT APPEARED THAT THE ALLEGED
VIOLATION CONSISTED OF THE WORK STOPPAGE DURING THE LAST FEW DAYS OF
FEBRUARY; BUT AT OTHER TIMES THE INQUIRY FOCUSED UPON THE UNION'S
REQUEST FOR A GRIEVANCE MEETING ON FEBRUARY 28 TO DISCUSS THE LATEST
SET-BACK PROBLEM.  "WHY," COUNSEL FOR THE ASSOCIATION ASKED, DID THE
UNION SEEK "TO REARBITRATE THE AWARD ...  ?"  AS THE CONTEMPT HEARING
DREW TO A CLOSE, COUNSEL FOR THE ASSOCIATION SUGGESTED YET ANOTHER
POSSIBILITY - THAT UNION OFFICIALS VIOLATED THE DISTRICT COURT'S DECREE
WHEN THEY "CASTIGATED" THE ARBITRATOR'S AWARD AND FAILED TO "TELL THE
MEN THAT THEIR WORK STOPPAGE WAS UNAUTHORIZED" UNDER THE AWARD ENTERED
SOME EIGHT MONTHS EARLIER.  "IN FAILING TO DO THAT," COUNSEL SAID,
"THEY HAVE SHOWN THAT THEY DO NOT INTEND TO ABIDE BY THE ARBITRATOR'S
AWARD WHICH WAS THE ESSENCE OF THE ORDER WHICH YOUR HONOR ISSUED  ...
." 

INVITED TO MAKE A CLOSING ARGUMENT, COUNSEL FOR THE UNION SAID: 

"I REALLY DON'T KNOW WHAT TO ADDRESS MYSELF TO BECAUSE I DON'T KNOW
WHAT IT IS WE ARE BEING CHARGED WITH.  ARE WE BEING CHARGED BECAUSE WE
WANT TO ARBITRATE OR BECAUSE WE ASKED TO INVOKE THE PROVISIONS OR ARE
WE BEING CHARGED FOR SOMETHING ELSE?  ...  . 

"I MAY SAY TO YOUR HONOR THAT WE HAVE BEEN SHOOTING IN THE DARK HERE
NOW, TRYING TO GUESS AT WHAT MAY BE AN ISSUE  ...  ." 

BUT THE DISTRICT JUDGE EVIDENTLY FELT NO NEED FOR EXPLANATION.  AFTER
A SHORT RECESS, THE COURT ANNOUNCED THAT THE DOCK STRIKE WAS "ILLEGAL
...  UNDER THE CIRCUMSTANCES," AND THAT THE UNION HAD "VIOLATED THE
ORDER OF THIS COURT AND THEREFORE SHALL BE ADJUDGED IN CIVIL
CONTEMPT."  AFTER EXTENDING THE CONTEMPT HOLDING TO "THE OFFICERS AND
THE MEN WHO PARTICIPATED," THE COURT FINED THE UNION $100,000 PER DAY,
RETROACTIVE TO 2 P.M., MARCH 1, 1966, WHEN THE CONTEMPT HEARING BEGAN,
AND EVERY DAY THEREAFTER "AS LONG AS THE ORDER OF THIS COURT IS
VIOLATED."  THE COURT OF APPEALS AFFIRMED BOTH THE ORIGINAL DECREE OF
THE DISTRICT COURT AND ITS SUBSEQUENT CONTEMPT ORDER,  (FN7) AND WE
GRANTED CERTIORARI TO CONSIDER THE QUESTIONS PRESENTED BY THESE TWO
JUDGMENTS.  (FN8) 

MUCH OF THE ARGUMENT IN THE COURT OF APPEALS AND IN THIS COURT HAS
CENTERED UPON THE DISTRICT COURT'S POWER TO ISSUE THE ORDER OF
SEPTEMBER 15, 1965.  (FN9)  THE UNION MAINTAINS THAT THE ORDER WAS AN
INJUNCTION AGAINST WORK STOPPAGES AND POINTS OUT THAT IN SINCLAIR
REFINING CO. V. ATKINSON, 370 U.S. 195, WE HELD THAT, BECAUSE OF THE
NORRIS-LAGUARDIA ACT A FEDERAL COURT CANNOT ENJOIN A WORK STOPPAGE EVEN
WHEN THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT CONTAINS A NO
STRIKE CLAUSE.  THE ASSOCIATION, ON THE OTHER HAND, ARGUES THAT THE
ORDER NO MORE THAN ENFORCED AN ARBITRATOR'S AWARD, AND POINTS OUT THAT
IN TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, WE HELD THAT
UNDER SEC 301 OF THE LABOR MANAGEMENT RELATIONS ACT, A FEDERAL COURT
MAY GRANT EQUITABLE RELIEF TO ENFORCE AN AGREEMENT TO ARBITRATE.  THE
PARTIES HAVE STRENUOUSLY ARGUED THE APPLICABILITY OF SINCLAIR AND
LINCOLN MILLS TO THE FACTS BEFORE US.  WE DO NOT, HOWEVER, REACH THE
UNDERLYING QUESTIONS OF FEDERAL LABOR LAW THESE ARGUMENTS PRESENT.  FOR
WHATEVER POWER THE DISTRICT COURT MIGHT HAVE POSSESSED UNDER THE
CIRCUMSTANCES DISCLOSED BY THIS RECORD, THE CONCLUSION IS INESCAPABLE
THAT THE DECREE WHICH THE COURT IN FACT ENTERED WAS TOO VAGUE TO BE
SUSTAINED AS A VALID EXERCISE OF FEDERAL JUDICIAL AUTHORITY. 

ON ITS FACE, THE DECREE APPEARS MERELY TO ENFORCE AN ARBITRATOR'S
AWARD.  BUT THAT AWARD CONTAINS ONLY AN ABSTRACT CONCLUSION OF LAW, NOT
AN OPERATIVE COMMAND CAPABLE OF "ENFORCEMENT."  WHEN COUNSEL FOR THE
UNION NOTED THIS DIFFICULTY AND SOUGHT TO ASCERTAIN THE DISTRICT
COURT'S MEANING, HE RECEIVED NO RESPONSE.  EVEN AT THE CONTEMPT HEARING
ON MARCH 1, THE UNION WAS NOT TOLD HOW IT HAD FAILED TO "COMPLY WITH
AND  ...  ABIDE BY THE ARBITRATOR'S AWARD," IN ACCORDANCE WITH THE
DISTRICT COURT'S ORIGINAL ORDER.  THAT COURT DID EXPRESS THE VIEW ON
MARCH 1 THAT THE FEBRUARY WALKOUTS HAD BEEN "ILLEGAL ...  UNDER THE
CIRCUMSTANCES."  BUT SUCH STRIKES WOULD HAVE BEEN "ILLEGAL" - IN THE
SENSE THAT THEY WOULD HAVE BEEN VIOLATIVE OF THE COLLECTIVE BARGAINING
AGREEMENT - EVEN IF THE DISTRICT COURT HAD ENTERED NO ORDER AT ALL,
TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S. 95, AND THE RECORD DOES
NOT REVEAL WHAT FURTHER "CIRCUMSTANCES" THE COURT DEEMED RELEVANT TO
THE CONCLUSION THAT THE UNION HAD VIOLATED ITS DECREE.  THUS THE
SEPTEMBER 15 DECREE, EVEN WHEN ILLUMINATED BY SUBSEQUENT EVENTS, LEFT
ENTIRELY UNCLEAR WHAT IT DEMANDED. 

RULE 65(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE WAS DESIGNED TO
PREVENT PRECISELY THE SORT OF CONFUSION WITH WHICH THIS DISTRICT COURT
CLOUDED ITS COMMAND.  THAT RULE PROVIDES: 

"EVERY ORDER GRANTING AN INJUNCTION AND EVERY RESTRAINING ORDER SHALL
SET FORTH THE REASONS FOR ITS ISSUANCE; SHALL BE SPECIFIC IN TERMS;
SHALL DESCRIBE IN REASONABLE DETAIL; AND NOT BY REFERENCE TO THE
COMPLAINT OR OTHER DOCUMENT, THE ACT OR ACTS SOUGHT TO BE RESTRAINED;
AND IS BINDING ONLY UPON THE PARTIES TO THE ACTION, THEIR OFFICERS,
AGENTS, SERVANTS, EMPLOYEES, AND ATTORNEYS, AND UPON THOSE PERSONS IN
ACTIVE CONCERT OR PARTICIPATION WITH THEM WHO RECEIVE ACTUAL NOTICE OF
THE ORDER BY PERSONAL SERVICE OR OTHERWISE." 

WHETHER OR NOT THE DISTRICT COURT'S ORDER WAS AN "INJUNCTION" WITHIN
THE MEANING OF THE NORRIS-LAGUARDIA ACT, IT WAS AN EQUITABLE DECREE
COMPELLING OBEDIENCE UNDER THE THREAT OF CONTEMPT AND WAS THEREFORE AN
"ORDER GRANTING AN INJUNCTION" WITHIN THE MEANING OF RULE 65(D). 
VIEWING THE DECREE AS "SPECIFICALLY ENFORCING" THE ABRITRATOR'S AWARD
WOULD NOT ALTER THIS CONCLUSION.  WE HAVE PREVIOUSLY EMPLOYED THE TERM
"MANDATORY INJUNCTION" TO DESCRIBE AN ORDER COMPELLING PARTIES TO ABIDE
BY AN AGREEMENT TO ARBITRATE,  (FN10)  AND THERE IS NO REASON TO
SUPPOSE THAT RULE 65(D) EMPLOYED THE INJUNCTION CONCEPT MORE NARROWLY. 
THAT RULE IS THE SUCCESSOR OF SEC 19 OF THE CLAYTON ACT.  (FN11)
"DEFENDANTS  ... NEVER BE LEFT TO GUESS AT WHAT THEY ARE FORBIDDEN TO
DO  ...  ."  (FN12)  CONSISTENT WITH THE SPIRIT AND PURPOSE OF ITS
STATUTORY PREDECESSOR, WE HAVE APPLIED RULE 65(D) IN REVIEWING A
JUDGMENT ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD,
(FN13)  AND THE COURTS OF APPEALS HAVE APPLIED THE RULE NOT ONLY TO
PROHIBITORY INJUNCTIONS BUT TO ENFORCEMENT ORDERS AND AFFIRMATIVE
DECREES AS WELL.  (FN14)  WE HAVE NO DOUBT, THEREFORE, THAT THE
DISTRICT COURT'S DECREE, HOWEVER IT MIGHT BE CHARACTERIZED FOR OTHER
PURPOSES, WAS AN "ORDER GRANTING AN INJUNCTION" FOR PURPOSES OF RULE
65(D).    THE ORDER IN THIS CASE CLEARLY FAILED TO COMPLY WITH THAT
RULE, FOR IT DID NOT STATE IN "SPECIFIC ...  TERMS" THE ACTS THAT IT
REQUIRED OR PROHIBITED.  THE COURT OF APPEALS VIEWED THIS ERROR AS
"MINOR AND IN NO WAY DECISIONAL."  (FN15)  WE CONSIDER IT BOTH SERIOUS
AND DECISIVE. 

THE JUDICIAL CONTEMPT POWER IS A POTENT WEAPON.  WHEN IT IS FOUNDED
UPON A DECREE TOO VAGUE TO BE UNDERSTOOD, IT CAN BE A DEADLY ONE. 
CONGRESS RESPONDED TO THAT DANGER BY REQUIRING THAT A FEDERAL COURT
FRAME ITS ORDERS SO THAT THOSE WHO MUST OBEY THEM WILL KNOW WHAT THE
COURT INTENDS TO REQUIRE AND WHAT IT MEANS TO FORBID.  BECAUSE THE
DECREE OF THIS DISTRICT COURT WAS NOT SO FRAMED, IT CANNOT STAND.  AND
WITH IT MUST FALL THE DISTRICT COURT'S DECISION HOLDING THE UNION IN
CONTEMPT.  WE DO NOT DEAL HERE WITH A VIOLATION OF A COURT ORDER BY ONE
WHO FULLY UNDERSTANDS ITS MEANING BUT CHOOSES TO IGNORE ITS MANDATE. 
WE DEAL INSTEAD WITH ACTS ALLEGED TO VIOLATE A DECREE THAT CAN ONLY BE
DESCRIBED AS UNINTELLIGIBLE.  THE MOST FUNDAMENTAL POSTULATES OF OUR
LEGAL ORDER FORBID THE IMPOSITION OF A PENALTY FOR DISOBEYING A COMMAND
THAT DEFIES COMPREHENSION.  REVERSED. 

FN1  THE 1959 AGREEMENT PROVIDED IN ARTICLE 9(A) THAT "MEN EMPLOYED
FROM MONDAY TO SUNDAY, INCLUSIVE, SHALL BE GUARANTEED FOUR (4) HOURS'
PAY FOR THE PERIOD BETWEEN 8:00 A.M. AND 12:00 NOON, REGARDLESS OF ANY
CONDITION."  ARTICLE 9(H) PROVIDED THAT "IF A SHIP IS KNOCKED OFF ON
ACCOUNT OF INCLEMENT WEATHER BY THE SHIP'S MASTER OR HIS AUTHORIZED
REPRESENTATIVE, THE MEN WILL BE PAID THE APPLICABLE GUARANTEE, BUT IN
THE EVENT THE MEN KNOCK OFF THEMSELVES, THEY WILL BE PAID ONLY FOR THE
TIME WORKED, REGARDLESS OF GUARANTEE PROVIDED FOR IN THIS AGREEMENT." 

A MEMORANDUM OF SETTLEMENT, EFFECTIVE OCTOBER 1, 1964, PROVIDED IN
ARTICLE 10(5) THAT "FOR WORK COMMENCING AT 8 AM ON MONDAY OR AT 8 AM ON
THE DAY FOLLOWING A HOLIDAY,"  EMPLOYERS WOULD "HAVE THE RIGHT BECAUSE
OF NON-ARRIVAL OF A VESSEL IN PORT TO CANCEL THE GANGS BY 7:30 A.M." 
ARTICLE 10(6) THEN STATED:  "GANGS ORDERED FOR AN 8 AM START MONDAY
THROUGH FRIDAY CAN BE SET BACK AT 7:30 AM ON THE DAY OF WORK TO
COMMENCE AT 1 PM AT WHICH TIME A FOUR HOUR GUARANTEE SHALL APPLY.  A
ONE HOUR GUARANTEE SHALL APPLY FOR THE MORNING PERIOD UNLESS EMPLOYED
DURING THE MORNING PERIOD." 

ARTICLE 16 OF THE MEMORANDUM OF SETTLEMENT ADOPTED THE PROVISIONS OF
THE 1959 AGREEMENT BY REFERENCE, WITH THE PROVISO THAT, IN CASES OF
CONFLICT, "THE PROVISIONS OF THE MEMORANDUM SHALL PREVAIL." 

FN2  ARTICLE 28 OF THE 1959 AGREEMENT, UNCHANGED BY THE MEMORANDUM OF
SETTLEMENT, PROVIDED: 

"ALL DISPUTES AND GRIEVANCES OF ANY KIND OR NATURE WHATSOEVER ARISING
UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL QUESTIONS
INVOLVING THE INTERPRETATION OF THIS AGREEMENT OTHER THAN ANY DISPUTES
OR GRIEVANCES ARISING UNDER THE TERMS AND CONDITIONS OF PARAGRAPH 13(D)
HEREOF, SHALL BE REFERRED TO A GRIEVANCE COMMITTEE, WHICH SHALL CONSIST
OF TWO MEMBERS SELECTED BY THE EMPLOYERS AND TWO MEMBERS SELECTED BY
THE UNION  ...  .  SHOULD THE GRIEVANCE COMMITTEE BE UNABLE TO RESOLVE
THE ISSUE SUBMITTED AND SHOULD NEITHER PARTY REQUEST AN IMMEDIATE
DECISION FROM THE ARBITRATOR, THEN THE GRIEVANCE OF DISPUTE SHALL BE
SUBMITTED TO A JOINT GRIEVANCE PANEL CONSISTING OF THREE
REPRESENTATIVES OF THE ASSOCIATION AND THREE REPRESENTATIVES OT THE
UNION.  TO THE END THAT THERE SHALL BE NO WORK INTERRUPTIONS AND TO THE
END THAT THERE SHALL BE LIMITED NECESSITY FOR ARBITRATION, THE PANEL
SHALL MAKE EVERY EFFORT TO RESOLVE ALL GRIEVANCES OR DISPUTES WHICH
COULD NOT BE RESOLVED BY THE GRIEVANCE COMMITTEE  ...  .  SHOULD THE
PANEL BE UNABLE TO RESOLVE A GRIEVANCE OR DISPUTE WHICH AROSE IN THE
PREVIOUS TWO WEEKS, OR BE UNABLE TO RESOLVE A GRIEVANCE OR DISPUTE
ANTICIPATED IN THE ENSUING TWO WEEKS, THE DISPUTE OR GRIEVANCE,
INCLUDING MATTERS OF INTERPRETATION OF THE CONTRACT, SHALL BE REFERRED
TO AN IMPARTIAL ARBITRATOR WHO SHALL BE SELECTED TO SERVE FOR A PERIOD
OF ONE YEAR FROM A PANEL OF FIVE ARBITRATORS TO BE SUBMITTED BY THE
AMERICAN ARBITRATION ASSOCIATION  ...  .  THE ARBITRATOR THUS SELECTED
SHALL CONDUCT HIS HEARINGS AND PROCEDURES IN ACCORDANCE WITH THE RULES
OF THE AMERICAN ARBITRATION ASSOCIATION, EXCEPT THAT HE SHALL BE
OBLIGED TO RENDER HIS DECISION WITHIN FORTY-EIGHT HOURS OF THE
CONCLUSION OF HIS HEARINGS OR PROCEDURES  ...  .  SHOULD THE TERMS AND
CONDITIONS OF THIS AGREEMENT FAIL TO SPECIFICALLY PROVIDE FOR AN ISSUE
IN DISPUTE, OR SHOULD A PROVISION OF THIS AGREEMENT BE THE SUBJECT OF
DISPUTED INTERPRETATION, THE ARBITRATOR SHALL CONSIDER PORT PRACTICE IN
RESOLVING THE ISSUE BEFORE HIM.  IF THE ARBITRATOR DETERMINES THAT
THERE IS NO PORT PRACTICE TO ASSIST HIM IN DETERMINING AN ISSUE NOT
SPECIFICALLY PROVIDED FOR IN THE COLLECTIVE BARGAINING AGREEMENT, OR NO
PORT PRACTICE TO ASSIST HIM IN RESOLVING AN INTERPRETATION OF THE
AGREEMENT, THE ISSUE SHALL BECOME THE SUBJECT OF NEGOTIATION BETWEEN
THE PARTIES.  THERE SHALL BE NO STRIKE AND NO LOCK-OUT DURING THE
PENDENCY OF ANY DISPUTE OR ISSUE WHILE BEFORE THE GRIEVANCE COMMITTEE,
THE JOINT PANEL, OR THE ARBITRATOR." 

FN3  THE TEXT OF THE ARBITRATOR'S AWARD WAS THIS: 

"THE CONTENTION OF THE EMPLOYER, THE PHILADELPHIA MARINE TRADE
ASSOCIATION, IS HEREBY SUSTAINED AND IT IS THE ARBITRATOR'S
DETERMINATION THAT SECTION 10(6) OF THE MEMORANDUM OF SETTLEMENT DATED
FEBRUARY 11, 1965, PROVIDING GANGS 'ORDERED FOR AN 8 AM START MONDAY
THROUGH FRIDAY CAN BE SET BACK AT 7:30 AM ON THE DAY OF WORK TO
COMMENCE AT 1 PM, AT WHICH TIME A 4 HOUR GUARANTEE SHALL APPLY.  A 1
HOUR GUARANTEE SHALL APPLY FOR THE MORNING PERIOD UNLESS EMPLOYED
DURING THE MORNING PERIOD,' MAY BE INVOKED BY THE EMPLOYER WITHOUT
QUALIFICATION. 

"THE CONTENTION OF THE UNION, THE INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, LOCAL NO. 1291, THAT SECTION 10(6) OF THE MEMORANDUM OF
SETTLEMENT DATED FEBRUARY 11, 1965, REFERRED TO ABOVE, CAN ONLY BE
INVOKED BY THE EMPLOYER BECAUSE OF NON-ARRIVAL OF A VESSEL IN PORT, IS
DENIED." 

FN4  THE UNION'S POSITION IN THIS REGARD WAS TWOFOLD.  IT MAINTAINED,
FIRST, THAT EVEN IF THE JULY AND SEPTEMBER DISPUTES HAD BEEN FACTUALLY
IDENTICAL TO THAT OF APRIL, IT WAS "QUITE CLEAR  ...  FROM PAST
PRACTICE AND FROM THE AGREEMENT ITSELF THAT  ...  THE AWARD AS TO ANY
GIVEN DISPUTE RELATES ONLY TO THAT DISPUTE AND IS NOT CONTROLLING SO
FAR AS ANY FUTURE DISPUTE IS CONCERNED."  THE UNION CONTENDED, SECOND,
THAT THE DISPUTES WERE FACTUALLY DIFFERENT IN AT LEAST ONE CRUCIAL
RESPECT:  IN THE LATER DISPUTES, THE LONGSHOREMEN WERE NOT NOTIFIED OF
THE SET-BACK BY 7:30 A.M., AS REQUIRED BY ARTICLE 10 OF THE MEMORANDUM
OF SETTLEMENT.  THE ARBITRATOR'S AWARD, BY ITS OWN TERMS, DEALT ONLY
WITH SITUATIONS IN WHICH LONGSHOREMEN WERE "SET BACK AT 7:30 A.M." 
COUNSEL FOR THE ASSOCIATION SEEMINGLY AGREED THAT THE QUESTION OF
NOTICE THUS PRESENTED AN INDEPENDENTLY ARBITRABLE ISSUE.  HE SAID:
"THE FACTUAL ISSUES AS FAR AS WHETHER OR NOT THERE WAS NOTICE  ...
SHOULD BE BROUGHT UP UNDER THE GRIEVANCE PROCEDURE WHICH IS IN THE
CONTRACT."  "THE QUESTION OF NOTIFICATION," HE AGREED, "WAS NOT A
MATTER IN THE ARBITRATOR'S AWARD."  HE STATED THAT THE TIME AND METHOD
OF NOTIFICATION HAD NOT CHANGED FROM APRIL TO SEPTEMBER BUT HE CONCEDED
THAT THE PROBLEM "WAS NEVER BROUGHT TO THE ARBITRATOR'S ATTENTION BY
THE PARTIES."  ON THIS BASIS, COUNSEL FOR THE UNION SAID THAT HIS
ADVERSARY HAD "ADMITTED ON THE STAND THAT THIS SITUATION GOES BEYOND
THE ARBITRATOR'S AWARD."  THE DISTRICT JUDGE THOUGHT OTHERWISE:  "YOU
HAVE ADDED WORDS TO HIS MOUTH, MY DEAR BOY, AND THAT YOU CAN'T DO." 

FN5  THE FULL TEXT OF THE DECREE WAS THIS:

                         "ORDER - SEPBEMBER 15, 1965 

"AND NOW TO WIT, THIS 15TH DAY OF SEPTEMBER, 1965, AFTER HEARING, IT
IS HEREBY ORDERED, ADJUDGED AND DECREED THAT THE ARBITRATOR'S AWARD IN
THE MATTER OF ARBITRATION BETWEEN THE PHILADELPHIA MARINE TRADE
ASSOCIATON AND INTERNATIONAL LONGSHOREMEN'S ASSOCIATION LOCAL 1291,
ISSUED ON JUNE 11, 1965, BE SPECIFICALLY ENFORCED BY DEFENDANT,
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION LOCAL 1291, AND THE SAID
DEFENDANT IS HEREBY ORDERED TO COMPLY WITH AND TO ABIDE BY THE SAID
AWARD. 

"BY THE COURT.  "RALPH C. BODY, J." 

FN6  AT THE HEARING FOLLOWING THE JULY WORK STOPPAGE, THE DISTRICT
JUDGE HAD AGREED THAT, AS TO FACTUAL SITUATIONS GOING "BEYOND THE
ARBITRATOR'S AWARD, THE UNION IS NOT BOUND."  THE UNION THUS ATTEMPTED
TO PROVE AT THE CONTEMPT HEARING ON MARCH 1 THAT THE FEBRUARY DISPUTES,
LIKE THOSE OF THE PREVIOUS JULY AND SEPTEMBER, WENT BEYOND THE
ARBITRATOR'S AWARD IN THAT THEY RAISED A SEPARATE QUESTION OF NOTICE. 
CF. N. 4, SUPRA.  THE DISTRICT JUDGE DID NOT COMMENT UPON THIS ASPECT
OF THE CASE IN HOLDING THE UNION GUILTY OF CONTEMPT. 

FN7  365 F.2D 295, 368 F. D 932. 

FN8  386 U.S. 907, 387 U.S. 916 

FN9  OTHER ISSUES HAVE BEEN ARGUED AS WELL.  IN LIGHT OF OUR
DISPOSITION OF THESE CASES, WE DO NOT REACH THEM. 

FN10  TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, UPHELD
FEDERAL JUDICIAL POWER TO ISSUE SUCH AN ENFORCEMENT ORDER.  IN SINCLAIR
REFINING CO. V. ATKINSON, 370 U.S. 195, WE DESCRIBED "THE EQUITABLE
RELIEF GRANTED IN" LINCOLN MILLS AS "A MANDATORY INJUNCTION TO CARRY
OUT AN AGREEMENT TO ARBITRATE."  ID., AT 212. 

FN11  38 STAT. 738, 28 U.S.C. SEC 383 (1940 ED.). 

FN12  H.R. REP. NO. 627, 63D CONG., 2D SESS., 26 (1914); S. REP. NO.
698, 63D CONG., 2D SESS., 21 (1914). 

FN13  REGAL KNITWEAR CO. V. BOARD, 324 U.S. 9, 13-15. 

FN14  SEE, E.G., INTERNATIONAL BROTHERHOOD V. KEYSTONE F. LINES, 123
F.2D 326, 330 (C.A. 10TH CIR.); NLRB V. BIRDSALL-STOCKDALE MOTOR CO.,
208 F.2D 234, 236-237 (C.A.  10TH CIR.); ENGLISH V. CUNNINGHAM, 106
U.S. APP. D.C. 70, 77-78, 269 F.2D 517, 524-525.  CF. BRUMBY METALS,
INC. V. BARGEN, 275 F.2D 46, 48-50 (C.A. 7TH CIR.); MIAMI BEACH FEDERAL
SAVINGS & LOAN ASSN. V. CALLANDER, 256 F.2D 410, 415 (C.A. 5TH CIR.). 

FN15  365 F.2D 295, 301. 

MR. JUSTICE BRENNAN, CONCURRING IN RESULT. 

I CONCUR IN THE RESULT.  BUT, LIKE MY BROTHER DOUGLAS, I EMPHASIZE
THAT TODAY'S DISPOSITION IN NO WAY IMPLIES THAT SINCLAIR REFINING CO.
V. ATKINSON, 370 U.S. 195, DETERMINES THE APPLICABILITY OF THE NORRIS
LAGUARDIA ACT TO AN EQUITABLE DECREE CAREFULLY FASHIONED TO ENFORCE THE
AWARD OF AN ARBITRATOR AUTHORIZED BY THE PARTIES TO MAKE FINAL AND
BINDING INTERPRETATIONS OF THE COLLECTIVE BARGAINING AGREEMENT. 

MR. JUSTICE DOUGLAS, CONCURRING IN PART AND DISSENTING IN PART. 

I WOULD REVERSE IN NO. 78 AND IN NO. 34 REMAND THE CASE TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS. 

IF THE ORDER OF THE DISTRICT COURT IS AN "INJUNCTION" WITHIN THE
MEANING OF RULE 65(D), THEN I FAIL TO SEE WHY IT IS NOT AN "INJUNCTION"
WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT.  LEGAL MINDS POSSESS AN
INVENTIVE GENIUS AS GREAT AS THAT OF THOSE WHO WORK IN THE PHYSICAL
SCIENCES.  PERHAPS A FORM OF WORDS COULD BE WORKED OUT WHICH WOULD
EMPLOY THE SCIENCE OF SEMANTICS TO DISTINGUISH THE NORRIS-LAGUARDIA ACT
PROBLEM FROM THE PRESENT ONE.  I FOR ONE SEE NO DISTINCTION; AND SINCE
I FEEL STRONGLY THAT SINCLAIR REFINING CO. V. ATKINSON, 370 U.S. 195,
CAUSED A SEVERE DISLOCATION IN THE FEDERAL SCHEME OF ARBITRATION OF
LABOR DISPUTES, I THINK WE SHOULD NOT SET OUR FEET ON A PATH THAT MAY
WELL LEAD TO THE EVENTUAL REAFFIRMATION OF THE PRINCIPLES OF THAT
CASE.  MY BROTHER STEWART EXPRESSLY RESERVES THE QUESTION WHETHER THE
PRESENT ORDER IS AN INJUNCTION PROHIBITED BY THE NORRIS-LAGUARDIA ACT. 
DESPITE THIS QUALIFICATION, ONCE WE HAVE HELD THAT THE ORDER
CONSTITUTES AN "INJUNCTION," THE DISTRICT COURT ON REMAND WOULD LIKELY
CONSIDER SINCLAIR, WHICH IS NOT OVERRULED, CONTROLLING AND APPLY IT TO
PRECLUDE THE ISSUANCE OF ANOTHER ORDER. 

WE HELD IN TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, THAT
A FAILURE TO ARBITRATE WAS NOT PART AND PARCEL OF THE ABUSES AGAINST
WHICH THE NORRIS-LAGUARDIA ACT WAS AIMED.  WE NOTED THAT CONGRESS, IN
FASHIONING SEC 301 OF THE LABOR MANAGEMENT RELATIONS ACT, WAS SEEKING
TO ENCOURAGE COLLECTIVE BARGAINING AGREEMENTS IN WHICH THE PARTIES
AGREE TO REFRAIN FROM UNILATERAL DISRUPTIVE ACTION, SUCH AS A STRIKE,
WITH RESPECT TO DISPUTES ARBITRABLE BY THE AGREEMENT.  HENCE, IF UNIONS
COULD BREAK SUCH AGREEMENTS WITH IMPUNITY, THE CONGRESSIONAL PURPOSE
MIGHT WELL BE FRUSTRATED.  ALTHOUGH SEC 301 DOES NOT IN TERMS ADDRESS
ITSELF TO THE QUESTION OF REMEDIES, IT COMMANDS THE DISTRICT COURT TO
HOLD THE PARTIES TO THEIR CONTRACTUAL SCHEME FOR ARBITRATION - THE
"FAVORED PROCESS FOR SETTLEMENT," AS MY BROTHER BRENNAN SAID IN DISSENT
IN SINCLAIR, 370 U.S., AT 216.  I AGREE WITH HIS OPINION THAT THERE
MUST BE AN ACCOMMODATION BETWEEN THE NORRIS-LAGUARDIA ACT AND ALL THE
OTHER LEGISLATION ON THE BOOKS DEALING WITH LABOR RELATIONS.  WE HAVE
HAD SUCH AN ACCOMMODATION IN THE CASE OF RAILROAD DISPUTES.  SEE
BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO R.&I.R. CO., 353 U.S. 30. 
WITH RESPECT TO SEC 301, "ACCOMMODATION REQUIRES ONLY THAT THE ANTI
INJUNCTION POLICY OF NORRIS-LAGUARDIA NOT INTRUDE INTO AREAS, NOT VITAL
TO ITS ENDS, WHERE INJUNCTIVE RELIEF IS VITAL TO A PURPOSE OF SEC 301;
IT DOES NOT REQUIRE UNCONDITIONAL SURRENDER."  370 U.S., AT 225. 

IT WOULD BE POSSIBLE, OF COURSE, TO DISTINGUISH SINCLAIR FROM THE
INSTANT CASES.  IN THESE CASES, THE RELIEF SOUGHT WAS A MANDATE AGAINST
REPETITION OF STRIKES OVER CAUSES COVERED BY THE ARBITRATOR'S AWARD. 
THE COMPLAINT BELOW ALLEGED THAT THE UNION'S "REFUSAL TO COMPLY WITH
THE TERMS OF THE ARBITRATOR'S AWARD CONSTITUTES A BREACH OF THE
APPLICABLE PROVISIONS OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT
...  ."  RESPONDENT ASKED THAT THE COURT "ENTER AN ORDER ENFORCING THE
ARBITRATOR'S AWARD, AND THAT PLAINTIFF MAY HAVE SUCH OTHER AND FURTHER
RELIEF AS MAY BE JUSTIFIED."  WE DO NOT REVIEW HERE, AS IN SINCLAIR, A
REFUSAL TO ENTER AN ORDER PROHIBITING UNILATERAL DISRUPTIVE ACTION ON
THE PART OF A UNION BEFORE THAT UNION HAS SUBMITTED ITS GRIEVANCES TO
THE ARBITRATION PROCEDURE PROVIDED BY THE COLLECTIVE BARGAINING
AGREEMENT.  RATHER, THE UNION IN FACT SUBMITTED TO THE ARBITRATION
PROCEDURE ESTABLISHED BY THE COLLECTIVE BARGAINING AGREEMENT BUT, IF
THE ALLEGATIONS ARE BELIEVED, TOTALLY FRUSTRATED THE PROCESS BY
REFUSING TO ABIDE BY THE ARBITRATOR'S DECISION.  SUCH A "HEADS I WIN,
TAILS YOU LOSE," ATTITUDE PLAYS FAST AND LOOSE WITH THE DESIRE OF
CONGRESS TO ENCOURAGE THE PEACEFUL AND ORDERLY SETTLEMENT OF LABOR
DISPUTES.    THE UNION, OF COURSE, MAY HAVE ACTED IN GOOD FAITH, FOR
THE NEW DISPUTE MAY HAVE BEEN FACTUALLY DIFFERENT FROM THE ONE WHICH
PRECIPITATED THE AWARD.  WHETHER OR NOT IT WAS, WE DO NOT KNOW.  TO
MAKE THE ACCOMMODATION WHICH THE TEXTILE WORKERS CASE VISUALIZES AS
NECESSARY BETWEEN THE POLICY OF ENCOURAGING ARBITRATION ON THE ONE HAND
AND THE NORRIS-LAGUARDIA RESTRICTIONS ON THE OTHER, THE BASIC CASE MUST
GO BACK FOR FURTHER AND MORE PRECISE FINDINGS AND THE CONTEMPT CASE
MUST OBVIOUSLY BE REVERSED.  SEE SINCLAIR, 370 U.S., AT 228-229
(DISSENTING OPINION). 
..END :






















UMANS V. UNITED STATES 389 U.S. 80 


NO. 41.  ARGUED OCTOBER 11, 1967.  - DECIDED NOVEMBER 6, 1967.  - 368
F.2D 725, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 


UMANS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS
SUBSTANTIALLY FOR THE REASONS STATED IN JUDGE WATERMAN'S OPINION FOR
THAT COURT IN UNITED STATES V. UMANS, 368 F.2D 725. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










BECKLEY NEWSPAPERS V. HANKS 389 U.S. 81 


NO. 467.  DECIDED NOVEMBER 6, 1967.  - CERTIORARI GRANTED; REVERSED AND
REMANDED. 


RESPONDENT BROUGHT THIS ACTION IN A WEST VIRGINIA CIRCUIT COURT
ALLEGING THAT THREE EDITORIALS IN PETITIONER'S NEWSPAPER CRITICIZING
HIS OFFICIAL CONDUCT AS COURT CLERK HAD LIBELED HIM.  THE JURY HAD BEEN
INSTRUCTED IN PART THAT IT COULD FIND FOR RESPONDENT IF IT WERE SHOWN
THAT PETITIONER HAD PUBLISHED THE EDITORIALS "WITH BAD OR CORRUPT
MOTIVE," OR "FROM PERSONAL SPITE, ILL WILL OR A DESIRE TO INJURE
PLAINTIFF."  RESPONDENT CONTENDED THAT THERE WAS SUFFICIENT PROOF FOR
THE JURY TO FIND THAT PETITIONER PUBLISHED THE STATEMENTS WITH RECKLESS
DISREGARD OF WHETHER THEY WERE FALSE OR NOT.  THE JURY AWARDED
RESPONDENT DAMAGES AND THE STATE SUPREME COURT OF APPEALS DENIED
APPELLATE REVIEW.  HELD: THE COURT'S INDEPENDENT EXAMINATION OF THE
WHOLE RECORD DOES NOT REVEAL THAT ANY FAILURE OF PETITIONER TO MAKE A
PRIOR INVESTIGATION CONSTITUTED PROOF SUFFICIENT TO PRESENT A JURY
QUESTION WHETHER THE STATEMENTS WERE PUBLISHED WITH RECKLESS DISREGARD
OF WHETHER THEY WERE FALSE OR NOT.  CF. NEW YORK TIMES CO. V. SULLIVAN,
376 U.S. 254, 287-288 (1964). 

BECKLEY NEWSPAPERS CORP. V. HANKS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF WEST
VIRGINIA, WYOMING COUNTY. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED. 

RESPONDENT HANKS IS THE ELECTED CLERK OF THE CRIMINAL AND CIRCUIT
COURTS OF RALEIGH COUNTY, WEST VIRGINIA.  HE BROUGHT THIS LIBEL ACTION
IN THE WEST VIRGINIA CIRCUIT COURT, WYOMING COUNTY, ALLEGING THAT
DURING HIS RE-ELECTION CAMPAIGN HE WAS LIBELED BY THREE EDITORIALS,
HIGHLY CRITICAL OF HIS OFFICIAL CONDUCT, WHICH APPEARED IN PETITIONER'S
MORNING NEWSPAPER.  THE JURY RETURNED A VERDICT FOR RESPONDENT AND
AWARDED HIM $5,000 DAMAGES.  THE STATE SUPREME COURT OF APPEALS DENIED
PETITIONER'S APPLICATION FOR APPELLATE REVIEW. 

ALTHOUGH THIS ACTION WAS TRIED SUBSEQUENT TO THE DECISIONS OF THIS
COURT IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964); GARRISON
V. LOUISIANA, 379 U.S. 64 (1964); HENRY V. COLLINS 380 U.S. 356 (1965);
AND ROSENBLATT V. BAER, 383 U.S. 75 (1966), AND DESPITE THE FACT THAT
IT WAS RECOGNIZED AT TRIAL THAT THE PRINCIPLES OF NEW YORK TIMES WERE
APPLICABLE, THE CASE WENT TO THE JURY ON INSTRUCTIONS WHICH WERE
CLEARLY IMPERMISSIBLE.  THE JURY WAS INSTRUCTED IN PART THAT IT COULD
FIND FOR THE RESPONDENT IF IT WERE SHOWN THAT PETITIONER HAD PUBLISHED
THE EDITORIALS "WITH BAD OR CORRUPT MOTIVE," OR "FROM PERSONAL SPITE,
ILL WILL OR A DESIRE TO INJURE PLAINTIFF."  BECAUSE PETITIONER FAILED
TO OBJECT TO THIS ERRONEOUS INTERPRETATION OF NEW YORK TIMES AT TRIAL,
AND IN FACT OFFERED INSTRUCTIONS WHICH WERE THEMSELVES INADEQUATE, THE
ISSUE OF THESE INSTRUCTIONS IS NOT BEFORE US.  HOWEVER, SINCE IT IS
CLEAR THAT THE JURY VERDICT WAS RENDERED UPON INSTRUCTIONS WHICH
MISSTATED THE LAW AND SINCE PETITIONER HAS PROPERLY CHALLENGED THE
SUFFICIENCY OF THE EVIDENCE, WE HAVE UNDERTAKEN AN INDEPENDENT
EXAMINATION OF THE RECORD AS A WHOLE "SO AS TO ASSURE OURSELVES THAT
THE JUDGMENT DOES NOT CONSTITUTE A FORBIDDEN INTRUSION ON THE FIELD OF
FREE EXPRESSION."  NEW YORK TIMES CO. V. SULLIVAN, SUPRA, AT 285.  SEE
CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 156-159 (1967)(OPINION OF
MR. JUSTICE HARLAN); ID., AT 168-170 (OPINION OF THE CHIEF JUSTICE). 

IN NEW YORK TIMES WE HELD THAT THE CONSTITUTION FORBIDS RECOVERY OF
DAMAGES IN A CIVIL LIBEL ACTION BY A PUBLIC OFFICIAL, SUCH AS
RESPONDENT, "FOR A DEFAMATORY FALSEHOOD RELATING TO HIS OFFICIAL
CONDUCT UNLESS HE PROVES THAT THE STATEMENT WAS MADE WITH 'ACTUAL
MALICE' - THAT IS, WITH KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS
DISREGARD OF WHETHER IT WAS FALSE OR NOT."  376 U.S., AT 279-280.  OUR
EXAMINATION OF THE WHOLE RECORD SATISFIES US THAT "THE PROOF PRESENTED
TO SHOW ACTUAL MALICE LACKS THE CONVINCING CLARITY WHICH THE
CONSTITUTIONAL STANDARD DEMANDS  ...  ."  376 U.S., AT 285-286. 

WE PUT ASIDE THE QUESTION WHETHER THE PROOFS SHOW THAT THE ALLEGEDLY
LIBELOUS STATEMENTS WERE FALSE.  IF FALSE, RESPONDENT DID NOT AND DOES
NOT CONTEND THAT PETITIONER PUBLISHED THE STATEMENTS WITH KNOWLEDGE OF
THEIR FALSITY.  HIS CONTENTION WAS AND IS THAT THE PROOFS WERE
SUFFICIENT FOR THE JURY TO FIND THAT PETITIONER PUBLISHED THE
STATEMENTS WITH RECKLESS DISREGARD OF WHETHER THEY WERE FALSE OR NOT. 
HOWEVER, VIRTUALLY THE ONLY EVIDENCE WE FIND BEARING ON THAT QUESTION
RELATES TO ONE OF THE EDITORIALS CRITICAL OF THE OPPOSITION OF
RESPONDENT AND ANOTHER PUBLIC OFFICIAL, MRS. ELINOR HURT, PRESIDENT OF
THE COUNTY BOARD OF HEALTH, TO FLUORIDATION OF THE LOCAL WATER SUPPLY. 
THAT EDITORIAL, CAPTIONED "THE FLUORIDATION SITUATION REMAINS
UNCHANGED," WAS DIRECTED PRIMARILY AT MRS. HURT'S OPPOSITION* BUT ALSO
INCLUDED THE FOLLOWING: 

*WHEN ASKED WHETHER SHE HAD EVER BROUGHT SUIT AGAINST PETITIONER FOR
THESE OR OTHER STATEMENTS, MRS. HURT REPLIED, "NO, SIR, I HAVE BIG
BROAD SHOULDERS."  (TR. 49.) 

"HERE, AGAIN, MRS. HURT SEEMS TO WANT TO FOLLOW IN THE FOOTSTEPS OF
HANKS.  FOR IT WAS HANKS WHO ORDERED OVER THE TELEPHONE ONCE THAT HE
DID NOT WANT HIS NAME TO APPEAR IN THE BECKLEY POST-HERALD AGAIN.  HE
BACKED UP THIS ORDER WITH AN INEXPLICIT THREAT - ONE MERELY INTENDED TO
FRIGHTEN THOSE WHO ARE EASILY INTIMIDATED. 

"THE ONLY CONCLUSION TO WHICH WE CAN COME IS THAT EITHER HANKS AND
MRS. HURT HAVE BEEN IN LEAGUE TOWARD THE FANATIC END, BELIEVING ALL THE
WILD-EYED RAVINGS AGAINST FLUORIDATION DESPITE DECADES OF EXPERIENCE TO
DISPROVE THEM, OR THAT PERHAPS HIS BLUSTERING THREATS WERE ABLE TO
INTIMIDATE THE LADY." 

RESPONDENT'S ARGUMENT IS THAT SINCE BOTH HE AND MRS. HURT TESTIFIED
AND DENIED ANY THREATS OR INTIMIDATION, THE FOLLOWING TESTIMONY OF
PETITIONER'S PRESIDENT AND GENERAL MANAGER ON CROSS-EXAMINATION
PROVIDES "CONVINCING PROOF" OF THE ABSENCE OF PRIOR INVESTIGATION WHICH
ENTITLED THE JURY TO FIND THAT THE "OFFENDING CHARGES" WERE PUBLISHED
WITH RECKLESS DISREGARD OF WHETHER THEY WERE FALSE OR TRUE: 

"Q.  BUT YOU CAN'T TELL THIS JURY THAT ANY SPECIFIC INVESTIGATION WAS
MADE BEFORE THIS MAN WAS ATTACKED IN ANY OF THESE ARTICLES, CAN YOU? 

  *         *         *         *         * 

"A.  WE WATCH THE ACTIVITIES OF THE PUBLIC SERVANT.  YOU DON'T HAVE
TO MAKE AN INVESTIGATION.  HIS WHOLE LIFE IS OUT IN FRONT OF
EVERYBODY. 

"Q.  THOSE EDITORIALS WERE NOT WRITTEN BY ANYBODY WHO WANTED TO FIND
OUT WHETHER OR NOT HE THREATENED MRS. HURT, WERE THEY? 

"A.  THERE WAS CAUSE ON THEIR PART TO FEEL THERE WAS THAT
POSSIBILITY. 

"Q.  THAT POSSIBILITY? 

"A.  THAT'S RIGHT.  'PERHAPS,' THEY SAID. 

     *         *         *     *         * 

"A.  IT WAS OUR OPINION THAT THAT WAS AS NEAR THE FACTS AND TRUTH AS
WE COULD GET."  (TR. 121-122.) 

WE REJECT RESPONDENT'S CONTENTION.  NEITHER THIS PASSAGE NOR ANYTHING
ELSE IN THE RECORD REVEALS "THE HIGH DEGREE OF AWARENESS OF  ...
PROBABLE FALSITY DEMANDED BY NEW YORK TIMES  ...  ."  GARRISON V.
LOUISIANA, 379 U.S. 64, 74; IT CANNOT BE SAID ON THIS RECORD THAT ANY
FAILURE OF PETITIONER TO MAKE A PRIOR INVESTIGATION CONSTITUTED PROOF
SUFFICIENT TO PRESENT A JURY QUESTION WHETHER THE STATEMENTS WERE
PUBLISHED WITH RECKLESS DISREGARD OF WHETHER THEY WERE FALSE OR NOT. 
CF. NEW YORK TIMES CO. V. SULLIVAN, SUPRA, AT 287-288; TIME, INC. V.
HILL, 385 U.S. 374, 388-389 (1967).  SEE ALSO CURTIS PUBLISHING CO. V.
BUTTS, SUPRA, AT 153-154 (OPINION OF MR. JUSTICE HARLAN). 

THE JUDGMENT IS REVERSED, AND THE CASE REMANDED TO THE CIRCUIT COURT
OF WEST VIRGINIA, WYOMING COUNTY, FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE DOUGLAS JOINS, CONCURS IN THE
RESULT FOR THE REASONS STATED IN HIS CONCURRING OPINIONS IN NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254, 293, AND GARRISON V. LOUISIANA,
379 U.S. 64, 79. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






GARNER V. YEAGER 389 U.S. 86 


NO. 704.  DECIDED NOVEMBER 6, 1967.  - VACATED AND REMANDED. 


PETITIONER'S REQUEST FOR FEDERAL HABEAS CORPUS, ON THE GROUND THAT THE
PROSECTUTION CONCEALED THE EXISTENCE OF A PROMISE TO RECOMMEND A
SPECIFIC SENTENCE OR LENIENCY FOR AN ACCOMPLICE WHO TESTIFIED FOR THE
STATE AGAINST PETITIONER, WAS REJECTED BY THE DISTRICT COURT AND THE
COURT OF APPEALS.  THEREAFTER, THE NEW JERSEY SUPREME COURT GRANTED
PETITIONER'S CO-DEFENDANT A NEW TRIAL AFTER A COURT HEARING ON SIMILAR
ALLEGATIONS.  HELD:  THE CASE, IN LIGHT OF THE STATE SUPREME COURT'S
ACTION, IS REMANDED TO THE DISTRICT COURT FOR RECONSIDERATION, WHICH
MAY INCLUDE WHETHER PETITIONER MUST FIRST EXHAUST ANY AVAILABLE STATE
REMEDIES. 

GARNER V. YEAGER, WARDEN, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

CERTIORARI WAS GRANTED IN THIS CASE ON OCTOBER 9, 1967.  THE JUDGMENT
OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT IS VACATED AND THE CASE
IS REMANDED TO THE DISTRICT COURT OF NEW JERSEY FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

PETITIONER SOUGHT FEDERAL HABEAS CORPUS ON THE GROUND, AMONG OTHERS,
THAT PRIOR TO HIS STATE TRIAL, THE ASSISTANT PROSECUTOR WHO HANDLED THE
PROSECUTION CONCEALED THE EXISTENCE OF A PROMISE OR AGREEMENT TO
RECOMMEND A SPECIFIC SENTENCE OR LENIENCY FOR AN ACCOMPLICE WHO
TESTIFIED AS A STATE'S WITNESS AGAINST PETITIONER.  THE DISTRICT COURT
REJECTED THE CLAIM WITHOUT A HEARING AND UPON ITS EXAMINATION OF THE
TRIAL RECORD, THE RECORD UPON A MOTION FOR NEW TRIAL, AND THE DECISION
OF THE SUPREME COURT OF NEW JERSEY AT 43 N.J. 209, 203 A.2D 177. 
HOWEVER, SUBSEQUENT TO THE ENTRY OF THE JUDGMENT OF THE COURT OF
APPEALS ON APRIL 7, 1967, THE SUPREME COURT OF NEW JERSEY, ON JULY 5,
1967, IN A STATE POST-CONVICTION PROCEEDING BROUGHT BY PETITIONER'S CO
DEFENDANT TAYLOR, UNDER N.J. REV. R.  3:10A, GRANTED TAYLOR A NEW TRIAL
AFTER A TRIAL COURT HEARING ON SIMILAR ALLEGATIONS.  STATE V. TAYLOR,
49 N.J. 440, 231 A.2D 212.  IN THAT CIRCUMSTANCE THE JUDGEMENT OF THE
COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR RECONSIDERATION OF PETITIONER'S CLAIM IN LIGHT OF THE ACTION
OF THE SUPREME COURT OF NEW JERSEY IN STATE V. TAYLOR.  THE DISTRICT
COURT'S RECONSIDERATION MAY INCLUDE WHETHER PETITIONER SHOULD BE
REQUIRED FIRST TO EXHAUST ANY REMEDY WHICH MAY BE AVAILABLE IN THE
STATE COURTS.  IT IS SO ORDERED. 
..END :




TERMINAL RAILROAD CO. V. UNITED STATES 389 U.S. 88 


NO. 539.  DECIDED NOVEMBER 6, 1967.  - 279 F. SUPP. 270, AFFIRMED. 


BALTIMORE & OHIO CHICAGO TERMINAL RAILROAD CO. ET AL. V. UNITED STATES
ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















CHANCE V. CALIFORNIA 389 U.S. 89 


NO. 306, MISC.  DECIDED NOVEMBER 6, 1967.  - CERTIORARI GRANTED;
JUDGMENT REVERSED. 


CHANCE V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN MATEO. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT
OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED.  REDRUP V. NEW
YORK, 386 U.S. 767. 

MR. JUSTICE HARLAN WOULD AFFIRM FOR THE REASONS SET FORTH IN HIS
SEPARATE OPINION IN ROTH V. UNITED STATES, 354 U.S. 476, 496, 500-503,
AND IN HIS DISSENTING OPINION IN MEMOIRS V. MASSACHUSETTS, 383 U.S.
413, 455. 
..END :










PINTO V. PIERCE 389 U.S. 31 


NO. 284.  DECIDED OCTOBER 23, 1967.  - CERTIORARI GRANTED; 374 F.2D 472,
REVERSED AND REMANDED. 


THE FEDERAL DISTRICT COURT GRANTED RESPONDENT'S PETITION FOR A WRIT OF
HABEAS CORPUS, HOLDING THAT A HEARING OF TESTIMONY BY THE STATE TRIAL
COURT, IN THE JURY'S PRESENCE, REGARDING THE VOLUNTARINESS OF AN
INCRIMINATING STATEMENT SOUGHT TO BE INTRODUCED BY THE PROSECUTION,
VIOLATED RESPONDENT'S CONSTITUTIONAL RIGHTS.  THE COURT OF APPEALS
AFFIRMED.  RESPONDENT HAD NOT OBJECTED TO THE PROCEDURE, AND AFTER THE
EVIDENCE REGARDING VOLUNTARINESS HAD BEEN HEARD, THE COURT HAD RULED
THE STATEMENT VOLUNTARY.  HELD:  PREVIOUS CASES IN THIS COURT HAVE
DETERMINED THAT VOLUNTARINESS HEARINGS MUST NECESSARILY BE HELD OUT OF
THE JURY'S PRESENCE, AND WHERE, AS HERE, RESPONDENT'S COUNSEL CONSENTED
TO THE PROCEDURE USED, AND THE JUDGE FOUND THE STATEMENT VOLUNTARY,
RESPONDENT WAS DEPRIVED OF NO CONSTITUTIONAL RIGHT. 

PINTO, PRISON FARM SUPERINTENDENT V. PIERCE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

RESPONDENT WAS INDICTED BY THE GRAND JURY OF ESSEX COUNTY, NEW
JERSEY, ON JULY 2, 1959, FOR THE CRIME OF ROBBERY WHILE ARMED. 
FOLLOWING A PLEA OF NOT GUILTY, HE WAS TRIED BEFORE A JURY, CONVICTED
AND SENTENCED TO A TERM OF FROM 16 TO 23 YEARS IN THE NEW JERSEY STATE
PRISON.  ON JUNE 6, 1966, RESPONDENT FILED A PETITION FOR A WRIT OF
HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEW JERSEY.  THE DISTRICT JUDGE DETERMINED FROM THE TRANSCRIPT OF
RESPONDENT'S TRIAL THAT THE TRIAL COURT HAD HEARD IN THE PRESENCE OF
THE JURY TESTIMONY REGARDING THE VOLUNTARINESS OF AN INCRIMINATING
STATEMENT SOUGHT TO BE INTRODUCED BY THE PROSECUTION, HELD THAT UNDER
PRIOR DECISIONS OF THIS COURT THIS PROCEDURE VIOLATED RESPONDENT'S
CONSTITUTIONAL RIGHTS AND GRANTED THE WRIT.  THE COURT OF APPEALS FOR
THE THIRD CIRCUIT AFFIRMED, AND PETITIONER, THE SUPERINTENDENT OF THE
NEW JERSEY STATE PRISON FARM, SEEKS A WRIT OF CERTIORARI. 

THE PETITION FOR CERTIORARI IS GRANTED AND THE JUDGMENT IS REVERSED. 
THIS COURT HAS NEVER RULED THAT ALL VOLUNTARINESS HEARINGS MUST BE HELD
OUTSIDE THE PRESENCE OF THE JURY, REGARDLESS OF THE CIRCUMSTANCES. 
JACKSON V. DENNO, 378 U.S. 368 (1964), HELD THAT A DEFENDANT'S
CONSTITUTIONAL RIGHTS ARE VIOLATED WHEN HIS CHALLENGED CONFESSION IS
INTRODUCED WITHOUT A DETERMINATION BY THE TRIAL JUDGE OF ITS
VOLUNTARINESS AFTER AN ADEQUATE HEARING.  A CONFESSION BY THE DEFENDANT
FOUND TO BE INVOLUNTARY BY THE TRIAL JUDGE IS NOT TO BE HEARD BY THE
JURY WHICH DETERMINES HIS GUILT OR INNOCENCE.  HENCE, BECAUSE A
DISPUTED CONFESSION MAY BE FOUND INVOLUNTARY AND INADMISSIBLE BY THE
JUDGE, IT WOULD SEEM PRUDENT TO HOLD VOLUNTARINESS HEARINGS OUTSIDE THE
PRESENCE OF THE JURY.  (FN1) IN THIS CASE, HOWEVER, THE CONFESSION WAS
HELD VOLUNTARY AND ADMITTED AS EVIDENCE SUITABLE FOR CONSIDERATION BY
THE JURY.  IN ADDITION, THERE IS NO CLAIM THAT BECAUSE THE HEARING WAS
HELD IN THE PRESENCE OF THE JURY IT WAS INADEQUATE OR HAD ANY OTHER
UNFAIR CONSEQUENCES FOR THE RESPONDENT.  (FN2) 

FINALLY, IT IS CLEAR THAT THE RESPONDENT IN THIS CASE DID NOT OBJECT
TO HAVING THE VOLUNTARINESS OF HIS ADMISSION CONSIDERED IN THE PRESENCE
OF THE JURY.  AT HIS TRIAL THE COURT ASKED DEFENSE COUNSEL WHETHER
THERE WAS ANY OBJECTION TO THE TESTIMONY BEING TAKEN IN THE PRESENCE OF
THE JURY.  DEFENSE COUNSEL REPLIED, "NONE WHATSOEVER."  THE COURT
CONTINUED, "AS YOU KNOW, IT CAN BE TAKEN IN THEIR PRESENCE OR OUTSIDE
OF THEIR PRESENCE, AND THAT IS A MATTER OF DISCRETION WITH THE COURT
BUT I AM INQUIRING OF YOU IF YOU HAVE ANY OBJECTIONS.  IF YOU DID I
WOULD HEAR YOU BUT I ASSUME YOU HAVE NONE."  AGAIN COUNSEL REPLIED, "I
HAVE NONE."  THE EVIDENCE REGARDING VOLUNTARINESS, WHICH INCLUDED
TESTIMONY BY RESPONDENT, WAS THEN TAKEN, AFTER WHICH THE COURT RULED
THAT THE STATEMENT WAS VOLUNTARY. 

SINCE TRIAL COUNSEL CONSENTED TO THE EVIDENCE ON VOLUNTARINESS BEING
TAKEN IN THE PRESENCE OF THE JURY, AND THE JUDGE FOUND THE STATEMENT
VOLUNTARY, RESPONDENT WAS DEPRIVED OF NO CONSTITUTIONAL RIGHT.  THE
MOTION OF RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE
PETITION FOR CERTIORARI ARE GRANTED, THE JUDGMENT IS REVERSED AND THE
CASE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE
WRIT OF HABEAS CORPUS. 

FN1  THE NEW JERSEY SUPREME COURT HAS RECENTLY ANNOUNCED THAT FROM
SEPTEMBER 11, 1967, HEARINGS ON ADMISSIBILITY SHALL BE OUTSIDE THE
PRESENCE OF THE JURY IF THE DEFENDANT SO REQUESTS.  SEE STATE V.
BROXTON, 49 N.J. 373, 386, N. 2, 230 A.2D 489, 496, N. 2 (1967). 

FN2  IN UNITED STATES V. CARIGNAN, 342 U.S. 36 (1951), RELIED UPON BY
THE TRIAL COURT, REVERSAL OF A CONVICTION WAS AFFIRMED BECAUSE THE
TRIAL JUDGE, AFTER HEARING SOME EVIDENCE CONCERNING VOLUNTARINESS WITH
THE JURY PRESENT, REFUSED TO PERMIT THE DEFENDANT TO TESTIFY ON THE
SUBJECT. 

THE OTHER CASES CITED BY THE DISTRICT COURT GRANTED WRITS OF HABEAS
CORPUS IN CASES IN WHICH TRIAL JUDGES HAD MADE NO INDEPENDENT
DETERMINATION OF VOLUNTARINESS.  SEE, FOR THE CITATIONS TO THOSE CASES,
UNITED STATES EX REL. PIERCE V. PINTO, 259 F. SUPP. 729, 731 (D.C.N.J.
1966). 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE FORTAS, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT BECAUSE OF TRIAL COUNSEL'S CONSENT TO THE
TAKING OF EVIDENCE ON VOLUNTARINESS IN THE PRESENCE OF THE JURY. 
OTHERWISE, I DISAGREE.  THE RULE OF JACKSON V. DENNO, 378 U.S. 368
(1964), SHOULD BE MORE THAN RITUAL.  IT WAS NOT INTENDED TO ASSURE A
DETERMINATION BY THE JUDGE AT THE COST OF DILUTING THE JURY'S ROLE IN
THE DETERMINATION OF VOLUNTARINESS AND THE WEIGHT TO BE GIVEN TO
ADMISSIONS.  "JUST AS QUESTIONS OF ADMISSIBILITY OF EVIDENCE ARE
TRADITIONALLY FOR THE COURT, QUESTIONS OF CREDIBILITY, WHETHER OF A
WITNESS OR A CONFESSION, ARE FOR THE JURY."  ID., AT 386, N. 13.  SEE
ALSO ID., AT 378, N. 8, AND CF. ID., AT 404 (SEPARATE OPINION OF BLACK,
J.). 

JACKSON V. DENNO MEANS THAT THE JUDGE AND THE JURY MUST EACH MAKE AN
INDEPENDENT JUDGMENT OF VOLUNTARINESS OF AN ADMISSION, THE JUDGE FOR
PURPOSES OF ADMISSIBILITY AND THE JURY FOR EVIDENTIARY ACCEPTABILITY,
CREDIBILITY, AND WEIGHT.  A TELESCOPED HEARING BEFORE JUDGE AND JURY,
IN WHICH THE JUDGE FINDS VOLUNTARINESS FOR PURPOSES OF ADMISSIBILITY,
IN REALITY REDUCES THE JURY FUNCTION TO AN ECHO.  HEARING THE EVIDENCE
SIMULTANEOUSLY WITH THE JUDGE, THE JURY IS NOT APT TO APPROACH
DISAGREEMENT WITH HIM.  I BELIEVE THAT THE PROCEDURE HERE SANCTIONED,
BY REDUCING THE EFFECTIVENESS OF THE JURY, GRAVELY IMPAIRS THE
CONSTITUTIONAL PRINCIPLE OF EXCLUDING INVOLUNTARY CONFESSIONS WHICH
JACKSON V. DENNO SOUGHT TO SERVE. 

THE JURY IS THE TRADITIONAL AND PREFERRED ARBITER OF FACTS.  THE
PROCEDURE COUNTENANCED HERE, BY DICTA, SANCTIONS, IN EFFECT, A
DIRECTION TO THE JURY TO ACCEPT AND GIVE FULL CREDENCE TO THE ADMISSION
- BECAUSE THE JUDGE, HEARING THE SAME TESTIMONY, HAS RULED THAT THE
ADMISSION IS VOLUNTARY. 
..END :











BEECHER V. ALABAMA 389 U.S. 35 


NO. 92, MISC.  DECIDED OCTOBER 23, 1967.  - CERTIORARI GRANTED; 280 ALA.
283, 193 SO. 2D 505, REVERSED. 


PETITIONER, ALREADY WOUNDED BY TENNESSEE POLICE, CONFESSED TO A RAPE
MURDER UNDER GUNPOINT THREAT TO DO SO OR BE KILLED.  FIVE DAYS LATER,
WITH "NO BREAK IN THE STREAM OF EVENTS," CLEWIS V. TEXAS, 386 U.S. 707,
710, WHEN STILL IN PAIN IN A PRISON HOSPITAL UNDER THE INFLUENCE OF
DRUGS, HE WAS DIRECTED TO TELL ALABAMA INVESTIGATORS "WHAT THEY WANTED
TO KNOW."  HE THEREUPON SIGNED CONFESSIONS, WHICH WERE ADMITTED INTO
EVIDENCE OVER HIS OBJECTIONS AT HIS TRIAL.  HE WAS CONVICTED AND THE
ALABAMA SUPREME COURT AFFIRMED.  HELD:  THE USE OF PETITIONER'S
CONFESSIONS, THE PRODUCT OF GROSS COERCION, VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT. 

BEECHER V. ALABAMA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

ON THE MORNING OF JUNE 15, 1964, THE PETITIONER, A NEGRO CONVICT IN A
STATE PRISON, ESCAPED FROM A ROAD GANG IN CAMP SCOTTSBORO, ALABAMA.  ON
JUNE 16, A WOMAN'S LIFELESS BODY WAS FOUND NOT MORE THAN A MILE FROM
THE PRISON CAMP.  THE NEXT DAY, THE PETITIONER WAS CAPTURED IN
TENNESSEE; HE WAS THEN RETURNED TO JACKSON COUNTY, ALABAMA, WHERE HE
WAS INDICTED, TRIED, AND CONVICTED ON A CHARGE OF FIRST DEGREE MURDER. 
THE JURY FIXED HIS PUNISHMENT AT DEATH.  AFTER THE SUPREME COURT OF
ALABAMA AFFIRMED HIS CONVICTION, HE FILED THIS PETITION FOR CERTIORARI,
CONTENDING THAT A COERCED CONFESSION WAS USED AS EVIDENCE AT HIS TRIAL,
IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
(FN1) 

THE UNCONTRADICTED FACTS OF RECORD ARE THESE.  TENNESSEE POLICE
OFFICERS SAW THE PETITIONER AS HE FLED INTO AN OPEN FIELD AND FIRED A
BULLET INTO HIS RIGHT LEG.  HE FELL, AND THE LOCAL CHIEF OF POLICE
PRESSED A LOADED GUN TO HIS FACE WHILE ANOTHER OFFICER POINTED A RIFLE
AGAINST THE SIDE OF HIS HEAD.  THE POLICE CHIEF ASKED HIM WHETHER HE
HAD RAPED AND KILLED A WHITE WOMAN.  WHEN HE SAID THAT HE HAD NOT, THE
CHIEF CALLED HIM A LIAR AND SAID, "IF YOU DON'T TELL THE TRUTH I AM
GOING TO KILL YOU."  THE OTHER OFFICER THEN FIRED HIS RIFLE NEXT TO THE
PETITIONER'S EAR, AND THE PETITIONER IMMEDIATELY CONFESSED.  (FN2)
LATER THE SAME DAY HE RECEIVED AN INJECTION TO EASE THE PAIN IN HIS
LEG.  HE SIGNED SOMETHING THE CHIEF OF POLICE DESCRIBED AS "EXTRADITION
PAPERS" AFTER THE OFFICERS TOLD HIM THAT "IT WOULD BE BEST 

...  TO SIGN THE PAPERS BEFORE THE GANG OF PEOPLE CAME THERE AND
KILLED" HIM.  HE WAS THEN TAKEN BY AMBULANCE FROM TENNESSEE TO KILBY
PRISON IN MONTGOMERY, ALABAMA.  BY JUNE 22, THE PETITIONER'S RIGHT LEG,
WHICH WAS LATER AMPUTATED, HAD BECOME SO SWOLLEN AND HIS WOUND SO
PAINFUL THAT HE REQUIRED AN INJECTION OF MORPHINE EVERY FOUR HOURS. 
LESS THAN AN HOUR AFTER ONE OF THESE INJECTIONS, TWO ALABAMA
INVESTIGATORS VISITED HIM IN THE PRISON HOSPITAL.  THE MEDICAL
ASSISTANT IN CHARGE TOLD THE PETITIONER TO "COOPERATE" AND, IN THE
PETITIONER'S PRESENCE, HE ASKED THE INVESTIGATORS TO INFORM HIM IF THE
PETITIONER DID NOT "TELL THEM WHAT THEY WANTED TO KNOW."  THE MEDICAL
ASSISTANT THEN LEFT THE PETITIONER ALONE WITH THE STATE'S
INVESTIGATORS.  IN THE COURSE OF A 90-MINUTE "CONVERSATION," THE
INVESTIGATORS PREPARED TWO DETAILED STATEMENTS SIMILAR TO THE
CONFESSION THE PETITIONER HAD GIVEN FIVE DAYS EARLIER AT GUNPOINT IN
TENNESSEE.  STILL IN A "KIND OF SLUMBER" FROM HIS LAST MORPHINE
INJECTION, FEVERISH, AND IN INTENSE PAIN, THE PETITIONER SIGNED THE
WRITTEN CONFESSIONS THUS PREPARED FOR HIM. 

THESE CONFESSIONS WERE ADMITTED IN EVIDENCE OVER THE PETITIONER'S
OBJECTION.  (FN3)  ALTHOUGH THERE IS SOME DISPUTE AS TO PRECISELY WHAT
OCCURRED IN THE PETITIONER'S ROOM AT THE PRISON HOSPITAL,  (FN4)  WE
NEED NOT RESOLVE THIS EVIDENTIARY CONFLICT, FOR EVEN IF WE ACCEPT AS
ACCURATE THE STATE'S VERSION OF WHAT TRANSPIRED THERE, THE
UNCONTRADICTED FACTS SET FORTH ABOVE LEAD TO THE INESCAPABLE CONCLUSION
THAT THE PETITIONER'S CONFESSIONS WERE INVOLUNTARY.  SEE DAVIS V. NORTH
CAROLINA, 384 U.S. 737, 741-742. 

THE PETITIONER, ALREADY WOUNDED BY THE POLICE, WAS ORDERED AT
GUNPOINT TO SPEAK HIS GUILT OR BE KILLED.  FROM THAT TIME UNTIL HE WAS
DIRECTED FIVE DAYS LATER TO TELL ALABAMA INVESTIGATORS "WHAT THEY
WANTED TO KNOW," THERE WAS "NO BREAK IN THE STREAM OF EVENTS," CLEWIS
V. TEXAS, 386 U.S. 707, 710.  FOR HE WAS THEN STILL IN PAIN, UNDER THE
INFLUENCE OF DRUGS, AND AT THE COMPLETE MERCY OF THE PRISON HOSPITAL
AUTHORITIES.  COMPARE RECK V. PATE, 367 U.S. 433. 

THE STATE SAYS THAT THE FACTS IN THIS CASE DIFFER IN SOME RESPECTS
FROM THOSE IN PREVIOUS CASES WHERE WE HAVE HELD CONFESSIONS TO BE
INVOLUNTARY.  BUT CONSTITUTIONAL INQUIRY INTO THE ISSUE OF
VOLUNTARINESS "REQUIRES MORE THAN A MERE COLOR-MATCHING OF CASES," RECK
V. PATE, 367 U.S. 433, 442.  A REALISTIC APPRAISAL OF THE CIRCUMSTANCES
OF THIS CASE COMPELS THE CONCLUSION THAT THIS PETITIONER'S CONFESSIONS
WERE THE PRODUCT OF GROSS COERCION.  UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, NO CONVICTION TAINTED BY A CONFESSION SO
OBTAINED CAN STAND. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR CERTIORARI ARE GRANTED AND THE JUDGMENT IS REVERSED. 

FN1  THE PETITIONER ALSO MAKES OTHER FOURTEENTH AMENDMENT CLAIMS.  IN
LIGHT OF OUR DISPOSITION OF THIS CASE, WE DO NOT REACH THEM. 

FN2  ALTHOUGH THIS CONFESSION WAS NOT INTRODUCED AT TRIAL, ITS
EXISTENCE IS OF COURSE VITALLY RELEVANT TO THE VOLUNTARINESS OF
PETITIONER'S LATER STATEMENTS.  SEE UNITED STATES V. BAYER, 331 U.S.
532, 540-541. 

FN3  BECAUSE PART OF THE EVIDENCE BEARING ON THE VOLUNTARINESS OF THE
CONFESSIONS WAS INTRODUCED IN A HEARING ON THE PETITIONER'S MOTION FOR
A NEW TRIAL, THE STATE SUGGESTS THAT "HIS COMPLAINT THAT THE CONFESSION
WAS IMPROPERLY ADMITTED NOW COMES TOO LATE."  THAT SUGGESTION IS
CLEARLY UNTENABLE.  THE PETITIONER OBJECTED WHEN THE CONFESSIONS WERE
INTRODUCED; HAVING OVERRULED THE OBJECTION, THE TRIAL COURT REJECTED
THE STATE'S CLAIM THAT THE ISSUE COULD NOT BE REVIEWED ON A NEW TRIAL
MOTION; AND THE SUPREME COURT OF ALABAMA FOUND NO STATE PROCEDURAL BAR
TO REACHING THE MERITS OF THE VOLUNTARINESS CLAIM AND DECIDING IT ON
THE COMPLETE RECORD.  THERE CAN THUS BE NO DOUBT HERE THAT THE ISSUE
WAS RAISED "IN AN APPROPRIATE MANNER,"  BROWN V. MISSISSIPPI, 297 U.S.
278, 286-287.  IN ANY EVENT, SINCE THE STATE COURT DEEMED THE FEDERAL
CONSTITUTIONAL QUESTION TO BE BEFORE IT, WE COULD NOT TREAT THE
DECISION BELOW AS RESTING UPON AN ADEQUATE AND INDEPENDENT STATE GROUND
EVEN IF WE WERE TO CONCLUDE THAT THE STATE COURT MIGHT PROPERLY HAVE
RELIED UPON SUCH A GROUND TO AVOID DECIDING THE FEDERAL QUESTION. 
INDIANA EX REL. ANDERSON V. BRAND, 303 U.S. 95, 98. 

FN4  THE INVESTIGATORS CLAIMED AT TRIAL THAT THEY HAD TOLD THE
PETITIONER, DURING THEIR 90-MINUTE TALK WITH HIM, THAT HE WAS UNDER NO
OBLIGATION TO SPEAK AND THAT ANYTHING HE SAID COULD BE USED AGAINST
HIM.  ONE OF THE INVESTIGATORS STATED THAT HE HAD ASKED THE PETITIONER
WHETHER HE WANTED AN ATTORNEY, AND HAD RECEIVED A NEGATIVE REPLY. 
ALTHOUGH THE PREPARED STATEMENTS THAT THE PETITIONER SIGNED REFER TO NO
SUCH WARNINGS, AND ALTHOUGH THE CONVERSATION IN QUESTION TOOK PLACE ON
THE DATE OF THIS COURT'S DECISION IN ESCOBEDO V. ILLINOIS, 378 U.S.
478, THE STATE COURTS ACCEPTED THE INVESTIGATORS' ACCOUNTS OF THAT
CONVERSATION AND REJECTED THE PETITIONER'S CONTRARY TESTIMONY AS "NOT
AT ALL PERSUASIVE." 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT OF THE COURT REVERSING THE
CONVICTION IN THIS CASE BUT DOES SO EXCLUSIVELY ON THE GROUND THAT THE
CONFESSION OF THE PETITIONER WAS TAKEN FROM HIM IN VIOLATION OF THE
SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES, WHICH AMENDMENT WAS MADE APPLICABLE TO THE STATES BY
THE FOURTEENTH AMENDMENT.  MALLOY V. HOGAN, 378 U.S. 1 (1964). 

MR. JUSTICE BRENNAN, WHOM THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS
JOIN. 

I CONCUR IN THE JUDGMENT OF REVERSAL.  THIS CONFESSION WAS TAKEN
AFTER OUR DECISION IN MALLOY V. HOGAN, 378 U.S. 1.  UNDER THE TEST OF
ADMISSIBILITY STATED IN MALLOY, THE FACTS PLAINLY COMPEL THE COURT'S
CONCLUSION THAT THE PETITIONER'S CONFESSION WAS INADMISSIBLE BECAUSE
INVOLUNTARY.  WE SAID IN MALLOY, AT 7: 

"  ...  THE ADMISSIBILITY OF A CONFESSION IN A STATE CRIMINAL
PROSECUTION IS TESTED BY THE SAME STANDARD APPLIED IN FEDERAL
PROSECUTIONS SINCE 1897, WHEN, IN BRAM V. UNITED STATES, 168 U.S. 532,
THE COURT HELD THAT 'IN CRIMINAL TRIALS, THE COURTS OF THE UNITED
STATES, WHEREVER A QUESTION ARISES WHETHER A CONFESSION IS INCOMPETENT
BECAUSE NOT VOLUNTARY, THE ISSUE IS CONTROLLED BY THAT PORTION OF THE
FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, COMMANDING
THAT NO PERSON "SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS
AGAINST HIMSELF."'  ID., AT 542.  UNDER THIS TEST, THE CONSTITUTIONAL
INQUIRY IS NOT WHETHER THE CONDUCT OF STATE OFFICERS IN OBTAINING THE
CONFESSION WAS SHOCKING, BUT WHETHER THE CONFESSION WAS 'FREE AND
VOLUNTARY:  THAT IS, IT MUST NOT BE EXTRACTED BY ANY SORT OF THREATS OR
VIOLENCE, NOR OBTAINED BY ANY DIRECT OR IMPLIED PROMISES, HOWEVER
SLIGHT, NOR BY THE EXERTION OF ANY IMPROPER INFLUENCE  ...  ."  ID., AT
542-543; SEE ALSO HARDY V. UNITED STATES, 186 U.S. 224, 229; WAN V.
UNITED STATES, 266 U.S. 1, 14; SMITH V. UNITED STATES, 348 U.S. 147,
150." 
..END :

















ROBERTS V. LAVALLEE 389 U.S. 40 


NO. 193, MISC.  DECIDED OCTOBER 23, 1967.  - CERTIORARI GRANTED; 373
F.2D 49, VACATED AND REMANDED. 


PETITIONER, AN INDIGENT, WAS CHARGED IN THE NEW YORK COURTS WITH
ROBBERY, LARCENY, AND ASSAULT.  HIS REQUEST FOR A FREE COPY OF A
PRELIMINARY HEARING TRANSCRIPT WAS DENIED.  A NEW YORK STATUTE PROVIDES
FOR THE FURNISHING OF SUCH A TRANSCRIPT FOR A FEE.  PETITIONER WAS
CONVICTED, HIS CONVICTION WAS AFFIRMED, THE NEW YORK COURT OF APPEALS
DENIED REVIEW, AND THIS COURT DENIED CERTIORARI.  AT EACH PROCEEDING
PETITIONER RAISED THE CONSTITUTIONAL ISSUE INVOLVING DENIAL OF THE
TRANSCRIPT.  HIS SUBSEQUENT PETITION FOR HABEAS CORPUS WAS DENIED BY
THE DISTRICT COURT.  THEREAFTER, IN PEOPLE V. MONTGOMERY, 18 N.Y.2D
993, 224 N.E.2D 730 (1966), THE NEW YORK COURT OF APPEALS HELD THAT THE
STATUTORY REQUIREMENT OF PAYMENT FOR A TRANSCRIPT, AS APPLIED TO AN
INDIGENT, CONSTITUTED A DENIAL OF EQUAL PROTECTION.  THE COURT OF
APPEALS FOR THE SECOND CIRCUIT HELD THAT, IN THESE CIRCUMSTANCES,
PETITIONER SHOULD RETURN TO THE STATE COURTS FOR RELIEF UNDER THE
MONTGOMERY DOCTRINE.  HELD: 

1.  THE NEW YORK STATUTE RESULTS IN A DIFFERENCE IN ACCESS TO
INSTRUMENTS NEEDED TO VINDICATE LEGAL RIGHTS; THIS DIFFERENCE, BASED
UPON A DEFENDANT'S FINANCIAL SITUATION, IS CONTRARY TO THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

2.  PETITIONER HAD ALREADY EXHAUSTED HIS STATE REMEDIES; NO
SUBSTANTIAL STATE INTEREST WOULD BE SERVED BY REQUIRING HIM TO RESUBMIT
TO THE STATE COURTS AN ISSUE THE RESOLUTION OF WHICH IS PREDETERMINED
BY ESTABLISHED FEDERAL PRINCIPLES. 

ROBERTS V. LAVALLEE, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

PETITIONER IS AN INDIGENT.  HE WAS CHARGED WITH ROBBERY, LARCENY, AND
ASSAULT IN NEW YORK.  WHEN HIS CASE WAS CALLED FOR TRIAL, PETITIONER
ASKED THAT THE COURT FURNISH HIM, AT STATE EXPENSE, WITH THE MINUTES OF
A PRIOR PRELIMINARY HEARING, AT WHICH THE MAJOR STATE WITNESSES HAD
TESTIFIED.  A NEW YORK STATUTE PROVIDED THAT A TRANSCRIPT OF THE
HEARING WOULD BE FURNISHED "ON PAYMENT OF  ...  FEES AT THE RATE OF
FIVE CENTS FOR EVERY HUNDRED WORDS."  N.Y. CODE CRIM. PROC. SEC 206. 
THE TRIAL COURT DENIED THE REQUEST FOR A FREE TRANSCRIPT. 

PETITIONER WAS CONVICTED OF THE CRIMES CHARGED AND SENTENCED TO A
TERM OF 15-20 YEARS IN PRISON.  HIS CONVICTION WAS AFFIRMED BY THE
APPELLATE DIVISION OF THE NEW YORK SUPREME COURT.  THE NEW YORK COURT
OF APPEALS DENIED LEAVE TO APPEAL.  WE DENIED A PETITION FOR
CERTIORARI.  THE ISSUE UNDER THE FEDERAL CONSTITUTION OF THE DENIAL OF
THE PRELIMINARY HEARING TRANSCRIPT WAS RAISED BY PETITIONER AT EACH
STAGE OF THESE PROCEEDINGS. 

PETITIONER NEXT APPLIED FOR HABEAS CORPUS IN THE NORTHERN DISTRICT OF
NEW YORK.  HIS PETITION WAS DENIED, THE COURT BELIEVING THAT PETITIONER
HAD NO FEDERAL CONSTITUTIONAL RIGHT TO A FREE TRANSCRIPT OF HIS
PRELIMINARY HEARING.  THEREAFTER, THE NEW YORK COURT OF APPEALS DECIDED
PEOPLE V. MONTGOMERY.  18 N.Y.2D 993, 224 N.E.2D 730 (1966).  THAT CASE
HOLDS THAT THE STATUTORY REQUIREMENT OF PAYMENT FOR A PRELIMINARY
HEARING TRANSCRIPT, AS APPLIED TO AN INDIGENT, IS A DENIAL OF EQUAL
PROTECTION AND UNCONSTITUTIONAL, UNDER BOTH THE FEDERAL AND STATE
CONSTITUTIONS. 

ON PETITIONER'S APPEAL FROM THE DISTRICT COURT, THE COURT OF APPEALS
FOR THE SECOND CIRCUIT DETERMINED THAT PETITIONER SHOULD APPLY TO THE
STATE COURTS FOR RELIEF UNDER THE DOCTRINE OF MONTGOMERY.  THE COURT
ACKNOWLEDGED THAT PETITIONER HAD ALREADY EXHAUSTED HIS STATE REMEDIES. 
BUT IT THOUGHT THE "CONSTITUTIONAL NECESSITY FOR FEDERAL COURT
INTERVENTION" WAS "OPEN TO DOUBT" AND THAT "THE QUESTION OUGHT TO BE
DECIDED IN FAVOR OF PERMITTING A STATE COURT DETERMINATION IN THE FIRST
INSTANCE."  ACCORDINGLY, IT DISMISSED THE PETITION FOR HABEAS CORPUS
WITHOUT PREJUDICE TO RENEWAL OF THE QUESTIONS PRESENTED BY PETITIONER
AFTER FURTHER PROCEEDINGS IN THE COURTS OF NEW YORK. 

PETITIONER SOUGHT CERTIORARI.  WE GRANT THE WRIT, AND WE VACATE THE
JUDGMENT BELOW. 

OUR DECISIONS FOR MORE THAN A DECADE NOW HAVE MADE CLEAR THAT
DIFFERENCES IN ACCESS TO THE INSTRUMENTS NEEDED TO VINDICATE LEGAL
RIGHTS, WHEN BASED UPON THE FINANCIAL SITUATION OF THE DEFENDANT, ARE
REPUGNANT TO THE CONSTITUTION.  SEE, E.G., DRAPER V. WASHINGTON, 372
U.S. 487 (1963); GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956).  ONLY LAST
TERM, IN LONG V. DISTRICT COURT OF IOWA, 385 U.S. 192 (1966), WE
REITERATED THE STATEMENT FIRST MADE IN SMITH V. BENNETT, 365 U.S. 708,
709 (1961), THAT "TO INTERPOSE ANY FINANCIAL CONSIDERATION BETWEEN AN
INDIGENT PRISONER OF THE STATE AND HIS EXERCISE OF A STATE RIGHT TO SUE
FOR HIS LIBERTY IS TO DENY THAT PRISONER THE EQUAL PROTECTION OF THE
LAWS."  WE HAVE NO DOUBT THAT THE NEW YORK STATUTE STRUCK DOWN BY THE
NEW YORK COURT OF APPEALS IN MONTGOMERY, AS APPLIED TO DENY A FREE
TRANSCRIPT TO AN INDIGENT, COULD NOT MEET THE TEST OF OUR PRIOR
DECISIONS. 

NOR DO WE BELIEVE THERE CAN BE ANY DOUBT THAT PETITIONER ADEQUATELY
MADE KNOWN HIS DESIRE TO OBTAIN THE MINUTES OF HIS PRELIMINARY
HEARING.  WE AGREE WITH JUDGE MEDINA, DISSENTING IN THE COURT OF
APPEALS, THAT THE DEMAND WAS "CLEAR AND UNEQUIVOCAL." 

IN BROWN V. ALLEN, 344 U.S. 443 (1953), WE CONSIDERED THE STATUTORY
REQUIREMENT, UNDER 28 U.S.C. SEC 2254, THAT A PETITIONER EXHAUST HIS
STATE REMEDIES BEFORE APPLYING FOR FEDERAL HABEAS CORPUS RELIEF.  WE
CONCLUDED THAT CONGRESS HAD NOT INTENDED "TO REQUIRE REPETITIOUS
APPLICATIONS TO STATE COURTS."  344 U.S., AT 449, N. 3.  WE DECLINED TO
RULE THAT THE MERE POSSIBILITY OF A SUCCESSFUL APPLICATION TO THE STATE
COURTS WAS SUFFICIENT TO BAR FEDERAL RELIEF.  SUCH A RULE WOULD
SEVERELY LIMIT THE SCOPE OF THE FEDERAL HABEAS CORPUS STATUTE. 

THE OBSERVATIONS MADE IN THE BROWN CASE APPLY HERE.  PETITIONER HAS
ALREADY THOROUGHLY EXHAUSTED HIS STATE REMEDIES, AS THE COURT OF
APPEALS RECOGNIZED.  STILL MORE STATE LITIGATION WOULD BE BOTH
UNNECESSARILY TIMECONSUMING AND OTHERWISE BURDENSOME.  THIS IS NOT A
CASE IN WHICH THERE IS ANY SUBSTANTIAL STATE INTEREST IN RULING ONCE
AGAIN ON PETITIONER'S CASE.  WE CAN CONCEIVE OF NO REASON WHY THE STATE
WOULD WISH TO BURDEN ITS JUDICIAL CALENDAR WITH A NARROW ISSUE THE
RESOLUTION OF WHICH IS PREDETERMINED BY ESTABLISHED FEDERAL
PRINCIPLES. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE WRIT OF
CERTIORARI ARE GRANTED, THE JUDGMENT IS VACATED, AND THE CASE IS
REMANDED TO THE COURT OF APPEALS FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

MR. JUSTICE HARLAN, DISSENTING. 

AS THE COURT STATES, PETITIONER WAS TOLD THAT IF HE WISHED A
TRANSCRIPT OF HIS PRELIMINARY HEARING HE WOULD HAVE TO PAY FOR IT.  THE
COURT FAILS TO ADD, HOWEVER, THAT PETITIONER AND HIS COUNSEL WERE BOTH
PRESENT AT THE PRELIMINARY HEARING, THAT THEY WERE FURNISHED A FREE
TRANSCRIPT OF THE GRAND JURY TESTIMONY OF THE STATE WITNESS IN QUESTION
BUT MADE NO USE OF THIS TRANSCRIPT AT TRIAL, AND THAT AT NO TIME HAS
PETITIONER SUGGESTED ANY USE TO WHICH THE PRELIMINARY HEARING
TRANSCRIPT COULD HAVE BEEN PUT, ALTHOUGH HE IS IN A POSITION TO KNOW
WHAT IT CONTAINS. 

THE DECISIONS CITED IN THE MAJORITY OPINION FALL FAR SHORT OF
DECLARING THAT ANY DOCUMENT RELATED TO THE CRIMINAL PROCESS, NO MATTER
HOW DEMONSTRABLY TRIVIAL ITS SIGNIFICANCE, MUST BE SUPPLIED FREE TO
INDIGENTS SIMPLY BECAUSE THE STATE IS WILLING TO MAKE IT AVAILABLE TO
OTHERS ABLE TO PAY FOR IT. RATHER THAN FORMULATE SUCH AN
UNDISCRIMINATING RULE, A RULE THAT PREDICTABLY MAY LEAD TO A NARROWING
OF THE AVAILABILITY OF DOCUMENTS THAT A STATE IS NOT CONSTITUTIONALLY
REQUIRED TO FURNISH TO ANY CRIMINAL DEFENDANT, I WOULD AT LEAST
UNDERTAKE TO EXAMINE THE IMPORTANCE OF THE PARTICULAR DOCUMENT IN
QUESTION. 

THIS EXAMINATION IS NOT NECESSARY IN THE PRESENT CASE, HOWEVER, FOR,
AS THE COURT'S OPINION RECOGNIZES, THERE EXISTS AN ADEQUATE BASIS UNDER
STATE LAW FOR AFFORDING PETITIONER THE RELIEF THAT HE SEEKS HERE. 
BELIEVING, AS DID THE COURT OF APPEALS, THAT FEDERAL COURTS SHOULD NOT
UNNECESSARILY INTERFERE WITH THE ADMINISTRATION OF JUSTICE IN STATE
COURTS, PARTICULARLY WHEN THIS INVOLVES REACHING FEDERAL CONSTITUTIONAL
QUESTIONS UNNECESSARILY, SEE HARRISON V. NAACP, 360 U.S. 167, I WOULD
AFFIRM THE DECISION BELOW. 

IN ADDITION, IN THE CIRCUMSTANCES DEPICTED BY THIS RECORD, I CONSIDER
THE COURT'S DISPOSITION OF THIS CASE IMPROVIDENT EVEN UNDER THE
POSTULATES OF ITS OPINION.  I UNDERSTAND THE COURT TO REQUIRE THE
ISSUANCE OF A WRIT OF HABEAS CORPUS, AND HENCE THE SETTING ASIDE OF THE
STATE CONVICTION, WITHOUT ANY FURTHER INVESTIGATION OF WHETHER THE
CONSTITUTIONAL ERROR NOW FOUND TO HAVE BEEN COMMITTED BY THE STATE
COURTS ACTUALLY PREJUDICED THIS DEFENDANT.  SINCE THERE APPEARS EVERY
LIKELIHOOD THAT FURTHER EXAMINATION WOULD REVEAL THAT THE DENIAL OF A
PRELIMINARY HEARING TRANSCRIPT TO THIS PETITIONER WAS "HARMLESS BEYOND
A REASONABLE DOUBT," CHAPMAN V. CALIFORNIA, 386 U.S. 18, AT 24, THE
CASE SHOULD HAVE BEEN SENT BACK TO THE COURT OF APPEALS WITH
INSTRUCTION TO REMAND TO THE DISTRICT COURT FOR A HEARING TO DETERMINE
THE POSSIBILITY OF PREJUDICE.  CF. ROBERTS V. UNITED STATES, ANTE, P.
18.  DUE RESPECT FOR STATE CRIMINAL PROCESSES REQUIRES AT LEAST THIS
MUCH. 
..END :













BEATTY V. UNITED STATES 389 U.S. 45 


NO. 338.  DECIDED OCTOBER 23, 1967.  - CERTIORARI GRANTED; 377 F.2D 181,
REVERSED. 


BEATTY V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, AND THE JUDGMENT IS
REVERSED.  MASSIAH V. UNITED STATES, 377 U.S. 201. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT. 
..END :














SAYLES V. WIEGAND 389 U.S. 45 


NO. 491.  DECIDED OCTOBER 23, 1967.  - APPEAL DISMISSED. 


SAYLES V. WIEGAND, PRESIDENT, BOARD OF DIRECTORS OF METROPOLIS BUILDING
ASSOCIATION, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :
















MERCER V. HEMMINGS. 389 U.S. 46 


NO. 406.  DECIDED OCTOBER 23, 1967.  - 194 SO. 2D 579, 587, APPEAL
DISMISSED. 


MERCER ET AL. V. HEMMINGS ET AL. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE STEWART IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND THE CASE ASSIGNED FOR ORAL ARGUMENT. 
..END :














BENNETT V. MISSISSIPPI 389 U.S. 46 


NO. 460.  DECIDED OCTOBER 23, 1967.  - 197 SO. 2D 886, APPEAL DISMISSED
AND CERTIORARI DENIED. 


BENNETT V. MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















POTOMAC NEWS CO. V. UNITED STATES 389 U.S. 47 


NO. 164.  DECIDED OCTOBER 23, 1967.  - CERTIORARI GRANTED; 373 F.2D 635,
REVERSED. 


POTOMAC NEWS CO. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT IS REVERSED. 
REDRUP V. NEW YORK, 386 U.S. 767. 

MR. JUSTICE HARLAN CONCURS IN THE JUDGMENT OF REVERSAL UPON THE
PREMISES STATED IN HIS SEPARATE OPINION IN ROTH V. UNITED STATES, 354
U.S. 476, 496, AND IN HIS DISSENTING OPINION IN MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, 457. 

THE CHIEF JUSTICE DISSENTS. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





CONNER V. CITY OF HAMMOND 389 U.S. 48 


NO. 259.  DECIDED OCTOBER 23, 1967.  - CERTIORARI GRANTED; REVERSED. 


CONNER V. CITY OF HAMMOND. 

ON PETITION FOR WRIT OF CERTIORARI TO THE TWENTY-FIRST JUDICIAL
DISTRICT COURT, LOUISIANA, PARISH OF TANGIPAHOA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE TWENTY-FIRST JUDICIAL DISTRICT COURT FOR THE PARISH OF TANGIPAHOA,
LOUISIANA, IS REVERSED.  REDRUP V. NEW YORK, 386 U.S. 767. 

MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT OF THE STATE COURT UPON
THE PREMISES STATED IN HIS SEPARATE OPINION IN ROTH V. UNITED STATES,
354 U.S. 476, 496, AND HIS DISSENTING OPINION IN MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :








UNITED STATES V. ALUMINUM CO. 389 U.S. 49 


NO. 271.  DECIDED OCTOBER 23, 1967.  - VACATED AND REMANDED. 


UNITED STATES V. ALUMINUM CO. OF AMERICA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

UPON CONSIDERATION OF THE JOINT SUGGESTION OF MOOTNESS AND MOTION TO
VACATE, THE JUDGMENT OF THE DISTRICT COURT OF JANUARY 20, 1967, IS
VACATED AS MOOT AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













CENTRAL MAGAZINE SALES V. UNITED STATES 389 U.S. 50 


NO. 368.  DECIDED OCTOBER 23, 1967.  - CERTIORARI GRANTED; 373 F.2D 633,
REVERSED. 


CENTRAL MAGAZINE SALES, LTD. V. UNITED STATES. 

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT IS REVERSED. 
REDRUP V. NEW YORK, 386 U.S. 767. 

MR. JUSTICE HARLAN CONCURS IN THE JUDGMENT OF REVERSAL UPON THE
PREMISES STATED IN HIS SEPARATE OPINION IN ROTH V. UNITED STATES, 354
U.S. 476, 496, AND IN HIS DISSENTING OPINION IN MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, 457. 

THE CHIEF JUSTICE BELIEVES THIS CASE IS CONTROLLED BY ROTH V. UNITED
STATES, 354 U.S. 476, AND THE JUDGMENT SHOULD BE AFFIRMED IN ACCORDANCE
WITH THE PRINCIPLES ENUNCIATED IN THE OPINION OF THE COURT IN THAT
CASE. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
























GARBER V. KANSAS 389 U.S. 51 


NO. 393.  DECIDED OCTOBER 23, 1967.  - 197 KAN. 567, 419 P.2D 896,
APPEAL DISMISSED AND CERTIORARI DENIED. 


GARBER V. KANSAS. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, AND MR. JUSTICE FORTAS ARE OF
THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :













CARP V. TEXAS STATE BOARD OF EXAMINERS 389 U.S. 52 


NO. 481.  DECIDED OCTOBER 23, 1967.  - 412 S.W.2D 307, APPEAL DISMISSED
AND CERTIORARI DENIED. 


CARP ET AL. V. TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY ET AL. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













KIRK V. WYOMING 389 U.S. 53 


NO. 50, MISC.  DECIDED OCTOBER 23, 1967.  - CERTIORARI GRANTED; 421 P.2D
487, REVERSED AND REMANDED. 


KIRK V. WYOMING. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF WYOMING. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
JACKSON V. DENNO, 378 U.S. 368; SIMS V. GEORGIA, 385 U.S. 538.  THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE
OPINIONS IN THOSE CASES.  JACKSON V. DENNO, 378 U.S., AT 394-396; SIMS
V. GEORGIA, 385 U.S., AT 544. 

MR. JUSTICE BLACK DISSENTS. 
..END :











BITTER V. UNITED STATES 389 U.S. 15 


NO. 201.  DECIDED OCTOBER 16, 1967.  - CERTIORARI GRANTED; 374 F.2D 744,
REVERSED. 


BECAUSE OF A SINGLE INCIDENT OF TARDINESS, THE TRIAL JUDGE ORDERED
PETITIONER INTO CUSTODY FOR THE DURATION OF HIS CRIMINAL TRIAL.  THE
ORDER, MADE WITHOUT WARNING, HEARING, OR EXPLANATION, RESULTED IN THE
RETENTION OF PETITIONER IN CUSTODY FOR THE BALANCE OF THE TRIAL IN A
JAIL 40 MILES FROM THE COURTROOM.  PETITIONER CONTENDED THAT THE
INCARCERATION WAS UNJUSTIFIED, THAT IT SIGNIFICANTLY INTERFERED WITH
HIS RIGHT TO COUNSEL, AND THAT IT SEVERELY IMPEDED HIS DEFENSE.  THE
COURT OF APPEALS AFFIRMED PETITIONER'S CONVICTION.  HELD:  THE TRIAL
COURT'S ORDER WAS PUNITIVE; BECAUSE THE PROCEDURES FOR INFLICTING
PUNISHMENT HAD NOT BEEN FOLLOWED AND BECAUSE THE ORDER COULD NOT BE
JUSTIFIED AS HAVING BEEN MADE IN ORDER TO FACILITATE THE TRIAL, THE
ORDER PLACED AN UNJUSTIFIED BURDEN ON THE DEFENSE. 

BITTER V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

PETITIONER WAS TRIED ON 18 COUNTS OF VIOLATING THE MAIL FRAUD
STATUTE, 18 U.S.C. SEC 1341, AND ONE COUNT OF USING AN ASSUMED NAME, A
VIOLATION OF 18 U.S.C. SEC 1342.  ON THE THIRD DAY OF TRIAL, THE
GOVERNMENT RESTED ITS CASE.  THIS WAS EARLIER THAN IT HAD ANNOUNCED OR
THAN PETITIONER HAD ANTICIPATED.  AT RECESS TIME PETITIONER SOUGHT
LEAVE OF THE COURT TO GO TO HIS OFFICE IN ORDER TO GATHER ADDITIONAL
EVIDENCE FOR THE DEFENSE.  PERMISSION FOR THIS WAS GRANTED.  FORTY-FIVE
MINUTES WERE ALLOTTED FOR THE RECESS. 

PETITIONER, WHO HAD PREVIOUSLY APPEARED PROMPTLY AT EVERY SESSION OF
THE TRIAL, WAS THIS TIME TARDY BY 37 MINUTES IN RETURNING TO COURT. 
WITHOUT WARNING, HEARING, OR EXPLANATION, THE TRIAL JUDGE ORDERED
PETITIONER INTO CUSTODY FOR THE BALANCE OF THE TRIAL.  ATTEMPTS BY
PETITIONER'S COUNSEL TO OFFER EXPLANATIONS FOR PETITIONER'S LATENESS
WERE TO NO AVAIL. 

DEFENSE COUNSEL WAS THEN ADVISED THAT PETITIONER WOULD BE KEPT IN
CUSTODY IN A COUNTY JAIL LOCATED SOME 18 MILES FROM THE COURT.  IN
FACT, PETITIONER WAS TAKEN ABOUT 40 MILES DISTANT, TO A DIFFERENT
JAIL.  COUNSEL'S ENDEAVORS THROUGHOUT THE TRIAL TO OBTAIN PETITIONER'S
RELEASE PROVED FRUITLESS.  PETITIONER REMAINED IN CUSTODY FOR THE
DURATION OF THE TRIAL.  HE WAS CONVICTED ON SEVEN COUNTS OF MAIL FRAUD
AND GIVEN A SENTENCE OF ONE YEAR AND ONE DAY ON EACH COUNT, THE
SENTENCES TO RUN CONCURRENTLY.  HE WAS ALSO FINED A TOTAL OF $3,500. 

PETITIONER CONTENDED THAT HIS INCARCERATION WAS UNJUSTIFIED AND THAT
IT MATERIALLY INTERFERED WITH HIS RIGHT TO COUNSEL AND SEVERELY IMPEDED
HIS DEFENSE.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED THE
CONVICTION.  374 F.2D 744 (1967).  WE GRANT CERTIORARI AND REVERSE. 

A TRIAL JUDGE INDISPUTABLY HAS BROAD POWERS TO ENSURE THE ORDERLY AND
EXPEDITIOUS PROGRESS OF A TRIAL.  FOR THIS PURPOSE, HE HAS THE POWER TO
REVOKE BAIL AND TO REMIT THE DEFENDANT TO CUSTODY.  BUT THIS POWER MUST
BE EXERCISED WITH CIRCUMSPECTION.  IT MAY BE INVOKED ONLY WHEN AND TO
THE EXTENT JUSTIFIED BY DANGER WHICH THE DEFENDANT'S CONDUCT PRESENTS
OR BY DANGER OF SIGNIFICANT INTERFERENCE WITH THE PROGRESS OR ORDER OF
THE TRIAL.*  SEE FERNANDEZ V. UNITED STATES, 81 S. CT. 642
(1961)(MEMORANDUM OF MR. JUSTICE HARLAN IN CHAMBERS); CARBO V. UNITED
STATES, 288 F.2D 282 (C.A. 9TH CIR. 1961); CHRISTOFFEL V. UNITED
STATES, 89 U.S. APP. D.C. 341, 196 F.2D 560 (1951). 

*IT DOES NOT APPEAR WHETHER DEFENDANT WAS AT LARGE ON BAIL AT THE
TIME OF THE ORDER REMITTING HIM TO CUSTODY.  BUT THE SAME PRINCIPLE
WOULD APPLY IF HE HAD BEEN AT LIBERTY ON HIS OWN RECOGNIZANCE.  CF.
BAIL REFORM ACT OF 1966, 18 U.S.C. SEC 3146 (1964 ED., SUPP. II). 

THE RECORD IN THIS CASE SHOWS ONLY A SINGLE, BRIEF INCIDENT OF
TARDINESS, RESULTING IN COMMITMENT OF THE DEFENDANT TO CUSTODY FOR THE
BALANCE OF THE TRIAL IN A JAIL 40 MILES DISTANT FROM THE COURTROOM.  IN
THESE CIRCUMSTANCES, THE TRIAL JUDGE'S ORDER OF COMMITMENT, MADE
WITHOUT HEARING OR STATEMENT OF REASONS, HAD THE APPEARANCE AND EFFECT
OF PUNISHMENT RATHER THAN OF AN ORDER DESIGNED SOLELY TO FACILITATE THE
TRIAL.  PUNISHMENT MAY NOT BE SO INFLICTED.  CF. RULE 42 OF FED. RULES
CRIM. PROC. (GOVERNING THE CONTEMPT POWER).  WE THEREFORE HOLD THAT THE
ORDER WAS UNJUSTIFIED AND THAT IT CONSTITUTED AN UNWARRANTED BURDEN
UPON DEFENDANT AND HIS COUNSEL IN THE CONDUCT OF THE CASE. 

ACCORDINGLY, WE GRANT CERTIORARI AND REVERSE THE JUDGMENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









ROBERTS V. UNITED STATES 389 U.S. 18 


NO. 330.  DECIDED OCTOBER 16, 1967.  - CERTIORARI GRANTED; 376 F.2D 993,
VACATED AND REMANDED. 


COURT OF APPEALS HELD TO HAVE ERRED IN DENYING PETITIONER'S
ALTERNATIVE MOTION FOR AN EVIDENTIARY HEARING IN THE DISTRICT COURT TO
DETERMINE WHETHER HE WAS PREJUDICED BY MONITORING WHERE IT HAD GRANTED
HIS CO-DEFENDANT, FOLLOWING THIS COURT'S REMAND IN LEVINE V. UNITED
STATES, 383 U.S. 265, A NEW TRIAL BASED ON THE GOVERNMENT'S DISCLOSURE
THAT THE FBI AFTER THE INDICTMENT HAD MONITORED CONVERSATIONS BETWEEN
THE CO-DEFENDANT AND THE LATTER'S ATTORNEY. 

ROBERTS V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED.  PETITIONER'S CONVICTION IS
VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

IN PROCEEDINGS BEFORE THE COURT OF APPEALS PURSUANT TO OUR PREVIOUS
REMAND, LEVINE V. UNITED STATES, 383 U.S. 265, THE COURT OF APPEALS
GRANTED PETITIONER'S CO-DEFENDANT LEVINE A NEW TRIAL BASED UPON A
DISCLOSURE BY THE GOVERNMENT THAT, AFTER THE RETURN OF THE INDICTMENT,
AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION MONITORED CONVERSATIONS
BETWEEN LEVINE AND LEVINE'S ATTORNEY.  BUT THE COURT OF APPEALS DENIED
PETITIONER'S MOTION FOR THE SAME RELIEF OR, ALTERNATIVELY, FOR A REMAND
TO THE DISTRICT COURT FOR AN EVIDENTIARY HEARING TO DETERMINE WHETHER
HE WAS PREJUDICED BY THE MONITORING; THE COURT OF APPEALS STATED,
HOWEVER, THAT THE MOTION WAS DENIED "WITHOUT PREJUDICE TO SUCH
APPLICATION BY HIM TO THE DISTRICT COURT AS MAY BE APPROPRIATE."  IN
THE CIRCUMSTANCES OF THIS CASE, AND IN LIGHT OF THE ACKNOWLEDGEMENT OF
THE SOLICITOR GENERAL IN HIS BRIEF IN OPPOSITION THAT "THE F.B.I. LOGS
PERTAINING TO THE MONITORED CONVERSATIONS" ARE AVAILABLE, WE THINK THE
COURT OF APPEALS ERRED IN DENYING PETITIONER'S ALTERNATIVE MOTION FOR
AN EVIDENTIARY HEARING IN THE DISTRICT COURT.  WE THEREFORE VACATE
PETITIONER'S CONVICTION AND REMAND TO THE DISTRICT COURT WITH DIRECTION
TO AFFORD PETITIONER SUCH AN EVIDENTIARY HEARING.  DEPENDING UPON ITS
FINDINGS, THE DISTRICT COURT WILL EITHER REINSTATE THE CONVICTION OR
ORDER A NEW TRIAL, AS MAY BE APPROPRIATE.  SEE UNITED STATES V. WADE,
388 U.S. 218, 242.  VACATED AND REMANDED. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :























WOOD V. UNITED STATES 389 U.S. 20 


NO. 27, MISC.  DECIDED OCTOBER 16, 1967.  - CERTIORARI GRANTED; 373 F.2D
894, VACATED AND REMANDED. 


PETITIONER BEFORE TRIAL FILED AN AFFIDAVIT REQUESTING THE DISTRICT
COURT TO ASSIGN COUNSEL PURSUANT TO THE CRIMINAL JUSTICE ACT BUT THE
COURT, WITHOUT ADEQUATE INQUIRY INTO PETITIONER'S FINANCIAL ABILITY TO
RETAIN COUNSEL, DISAPPROVED THE REQUEST.  THE COURT OF APPEALS, AFTER
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS, AFFIRMED.  HELD:  THE TRIAL
COURT SHOULD HAVE EXPLORED THE POSSIBILITY THAT PETITIONER COULD AFFORD
ONLY PARTIAL PAYMENT FOR THE SERVICES OF TRIAL COUNSEL AND THAT COUNSEL
BE APPOINTED ON THAT BASIS AS PERMITTED BY THE ACT. 

WOOD V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

PETITIONER WAS FOUND GUILTY BY THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF GEORGIA OF REFUSING TO REPORT FOR CIVILIAN
EMPLOYMENT, IN VIOLATION OF SEC 12 OF THE UNIVERSAL MILITARY TRAINING
AND SERVICE ACT, 62 STAT. 622, 50 U.S.C. APP. SEC 462.  BEFORE TRIAL HE
FILED AN AFFIDAVIT WITH THE COURT REQUESTING ASSIGNED COUNSEL PURSUANT
TO THE CRIMINAL JUSTICE ACT, 18 U.S.C. SEC 3006A.  THE COURT CONSIDERED
THE AFFIDAVIT, QUESTIONED PETITIONER AND DISAPPROVED THE REQUEST.  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT GRANTED LEAVE TO APPEAL IN FORMA
PAUPERIS, ASSIGNED COUNSEL TO ASSIST PETITIONER IN HIS APPEAL AND
AFFIRMED THE CONVICTION.  PETITIONER SEEKS A WRIT OF CERTIORARI. 

BEFORE THIS COURT THE SOLICITOR GENERAL HAS CONCEDED THAT THE RECORD
DOES NOT CONVINCINGLY SHOW THAT THERE WAS ADEQUATE INQUIRY INTO THE
QUESTION OF PETITIONER'S FINANCIAL ABILITY TO RETAIN COUNSEL, IN THAT
"THE TRIAL COURT SHOULD HAVE EXPLORED THE POSSIBILITY THAT PETITIONER
COULD AFFORD ONLY PARTIAL PAYMENT FOR THE SERVICES OF TRIAL COUNSEL AND
THAT COUNSEL BE APPOINTED ON THAT BASIS, AS THE CRIMINAL JUSTICE ACT
PERMITS (SEE 18 U.S.C. SEC 3006(A)(C) AND (F))."  THE SOLICITOR GENERAL
URGES, HOWEVER, THAT THERE IS NO BASIS FOR BELIEVING THAT PETITIONER
SUFFERED PREJUDICE FROM THE DISTRICT COURT'S ERROR, AN ARGUMENT WE FIND
UNPERSUASIVE. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED, THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT FOR
RECONSIDERATION IN LIGHT OF THE SOLICITOR GENERAL'S MEMORANDUM AND THE
RELEVANT CRITERIA OF THE CRIMINAL JUSTICE ACT. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















COLEMAN V. ALABAMA 389 U.S. 22 


NO. 162, MISC.  DECIDED OCTOBER 16, 1967.  - CERTIORARI GRANTED; 280
ALA. 509, 195 SO. 2D 800, REVERSED AND REMANDED. 


IN AN EVIDENTIARY HEARING, FOLLOWING REMAND, IT APPEARED THAT UNTIL
PETITIONER'S TRIAL, NO NEGRO HAD EVER SERVED ON A GRAND JURY PANEL AND
FEW, IF ANY, ON PETIT JURY PANELS IN THE COUNTY, AND THAT NO NEGROES
SERVED ON THE GRAND JURY WHICH INDICTED PETITIONER OR THE PETIT JURY
WHICH CONVICTED HIM.  THE STATE PRESENTED NO REBUTTAL EVIDENCE, AND THE
STATE SUPREME COURT'S STATEMENT THAT THE ACKNOWLEDGED DISPARITY "CAN BE
EXPLAINED BY A NUMBER OF OTHER FACTORS," VIZ., BY NEGROES MOVING OUT OF
THE COUNTY, AND SOME DISQUALIFICATIONS FOR FELONY CONVICTIONS, HELD NOT
TO REBUT PETITIONER'S PRIMA FACIE CASE OF DENIAL OF EQUAL PROTECTION OF
THE LAWS. 

COLEMAN V. ALABAMA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED. 

ON OUR PREVIOUS REMAND, WE HELD THAT PETITIONER WAS ENTITLED TO "HIS
DAY IN COURT ON HIS ALLEGATIONS OF SYSTEMATIC EXCLUSION OF NEGROES FROM
THE GRAND AND PETIT JURIES SITTING IN HIS CASE."  377 U.S. 129, 133. 
PETITIONER WAS THEREUPON AFFORDED AND EVIDENTIARY HEARING ON HIS
ALLEGATIONS.  ALTHOUGH THE EVIDENCE WAS IN DISPUTE REGARDING THE
INCLUSION OF NEGROES IN THE GRAND AND PETIT JURY VENIRES IN THE COUNTY
IN WHICH PETITIONER WAS INDICTED AND TRIED, IT APPEARED THAT NO NEGRO
SERVED ON THE GRAND JURY WHICH INDICTED OR THE PETIT JURY WHICH
CONVICTED PETITIONER.  IT FURTHER APPEARED THAT UP TO THE TIME OF
PETITIONER'S TRIAL, NO NEGRO HAD EVER SERVED ON A GRAND JURY PANEL AND
FEW, IF ANY, NEGROES HAD SERVED ON PETIT JURY PANELS.  THIS "TESTIMONY
IN ITSELF MADE OUT A PRIMA FACIE CASE OF THE DENIAL OF THE EQUAL
PROTECTION WHICH THE CONSTITUTION GUARANTEES."  NORRIS V. ALABAMA, 294
U.S. 587, 591.  IN THE ABSENCE OF EVIDENCE ADDUCED BY THE STATE
ADEQUATE TO REBUT THE PRIMA FACIE CASE, PETITIONER WAS THEREFORE
ENTITLED TO HAVE HIS CONVICTION REVERSED.  ARNOLD V. NORTH CAROLINA,
376 U.S. 773; EUBANKS V. LOUISIANA, 356 U.S. 584; REECE V. GEORGIA, 350
U.S. 85, 87-88; HERNANDEZ V. TEXAS, 347 U.S. 475, 481; HILL V. TEXAS,
316 U.S. 400, 406; NORRIS V. ALABAMA, SUPRA. 

ON OUR INDEPENDENT EXAMINATION OF THE RECORD, WE ARE UNABLE TO
DISCOVER ANY EVIDENCE ADDUCED BY THE STATE ADEQUATE TO REBUT
PETITIONER'S PRIMA FACIE CASE.  THE ALABAMA SUPREME COURT, IN AFFIRMING
THE TRIAL COURT'S DENIAL OF RELIEF, ACKNOWLEDGED THAT THE EVIDENCE
INDICATED "A DISPARITY" AND STATED ONLY THAT "THAT DISPARITY CAN BE
EXPLAINED BY A NUMBER OF OTHER FACTORS."  280 ALA. 509, 512, 195 SO. 2D
800, 802.  THE ONLY FACTORS MENTIONED, HOWEVER, WERE THAT NEGROES HAD
MOVED AWAY FROM THE COUNTY AND THAT SOME MAY HAVE BEEN UNDER THE
STATUTORY DISQUALIFICATION OF HAVING SUFFERED A FELONY CONVICTION.  IN
THE CIRCUMSTANCES OF THIS CASE THESE FACTORS WERE NOT IN OUR VIEW
SUFFICIENT TO REBUT PETITIONER'S PRIMA FACIE CASE. 

THE JUDGMENT OF THE ALABAMA SUPREME COURT IS THEREFORE REVERSED AND
THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 
..END :













JONES V. GEORGIA 389 U.S. 24 


NO. 174, MISC.  DECIDED OCTOBER 16, 1967.  - CERTIORARI GRANTED; 223 GA.
157, 154 S.E.2D 228, REVERSED AND REMANDED. 


PETITIONER APPEALED HIS MURDER CONVICTION ON THE GROUND, AMONG OTHERS,
THAT THE EVIDENCE OF SYSTEMATIC EXCLUSION OF NEGROES FROM GRAND AND
PETIT JURIES ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATION UNDER
WHITUS V. GEORGIA, 385 U.S. 545.  THE GEORGIA SUPREME COURT AFFIRMED
BECAUSE "PUBLIC OFFICERS ARE PRESUMED TO HAVE DISCHARGED THEIR SWORN
OFFICIAL DUTIES," AND "WE CAN NOT ASSUME THAT THE JURY COMMISSIONERS
DID NOT ELIMINATE PROSPECTIVE JURORS ON THE BASIS OF THEIR COMPETENCY
TO SERVE, RATHER THAN BECAUSE OF RACIAL DISCRIMINATION."  HELD:  THE
STATE'S BURDEN TO EXPLAIN THE "DISPARITY BETWEEN THE PERCENTAGE OF
NEGROES ON THE TAX DIGEST AND THOSE ON THE VENIRES" WAS NOT MET BY
RELIANCE ON THE STATED PRESUMPTIONS. 

JONES V. GEORGIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED. 

PETITIONER APPEALED HIS CONVICTION FOR MURDER TO THE GEROGIA SUPREME
COURT WHERE HE SOUGHT REVERSAL ON THE GROUND, AMONG OTHERS, THAT THE
EVIDENCE RELEVANT TO HIS CLAIM OF SYSTEMATIC EXCLUSION OF NEGROES FROM
THE GRAND AND PETIT JURIES DRAWN IN THE COUNTY ESTABLISHED A PRIMA
FACIE CASE OF THE DENIAL OF EQUAL PROTECTION WITHIN OUR DECISION IN
WHITUS V. GEORGIA, 385 U.S. 545.*  THE GEORGIA SUPREME COURT AFFIRMED
THE CONVICTION STATING THAT WHITUS WAS DISTINGUISHABLE BECAUSE "PUBLIC
OFFICERS ARE PRESUMED TO HAVE DISCHARGED THEIR SWORN OFFICIAL DUTIES
...  .  UNDER THE TESTIMONY IN THIS CASE WE CAN NOT ASSUME THAT THE
JURY COMMISSIONERS DID NOT ELIMINATE PROSPECTIVE JURORS ON THE BASIS OF
THEIR COMPETENCY TO SERVE, RATHER THAN BECAUSE OF RACIAL
DISCRIMINATION."  223 GA. 157, 162, 154 S.E.2D 228, 232. 

*THE RECORD SUPPORTS THE FOLLOWING COMPARISON OF THE SALIENT FACTS IN
WHITUS AND IN PETITIONER'S CASE:

                                  WHITUS      PETITIONER'S CASE

      OVER 21 POPULATION          42.6% NEGRO MEN             30.7%
NEGRO

      JURY COMMISSIONERS          WHITE (APPARENTLY)          WHITE

       SOURCE OF JUROR NAMES        TAX DIGESTS SEPARATED       3
TAX DIGESTS, TWO

                                    AND IDENTIFIED AS TO        OF
WHICH SEPARATED

         RACE                        AND IDENTIFIED AS

                                                           TO RACE

      TAXPAYERS                   27.1% NEGRO            19.7%
NEGRO

       NEGRO JURORS  9.1% GRAND JURY VENIRE      5.0% OF JURY LIST

                                                     AND BOX (1
NEGRO

                                    7.8% PETIT JURY VENIRE
WAS ON THE GRAND

                                          JURY WHICH INDICTED

      PETITIONER)

       REBUTTAL EVIDENCE BY STATE   NONE
NONE 

WE HOLD THAT THE BURDEN UPON THE STATE TO EXPLAIN "THE DISPARITY
BETWEEN THE PERCENTAGE OF NEGROES ON THE TAX DIGEST AND THOSE ON THE
VENIRES," WHITUS, SUPRA, AT 552, WAS NOT MET BY THE GEORGIA SUPREME
COURT'S RELIANCE ON THE STATED PRESUMPTIONS.  SEE ARNOLD V. NORTH
CAROLINA, 376 U.S. 773; EUBANKS V. LOUISIANA, 356 U.S. 584; WILLIAMS V.
GEORGIA, 349 U.S. 375; AVERY V. GEORGIA, 345 U.S. 559; CASSELL V.
TEXAS, 339 U.S. 282; NORRIS V. ALABAMA, 294 U.S. 587.  WE THEREFORE
REVERSE THE JUDGMENT OF THE GEORGIA SUPREME COURT AND REMAND FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH OUR OPINION.  IT IS SO
ORDERED. 
..END :








SKOLNICK V. BOARD OF COMMISSIONERS 389 U.S. 26 


NO. 91, MISC.  DECIDED OCTOBER 16, 1967.  - VACATED AND REMANDED. 


SKOLNICK V. BOARD OF COMMISSIONERS OF COOK COUNTY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CAUSE IS
REMANDED IN ORDER THAT THE DISTRICT COURT MAY ENTER A FRESH DECREE FROM
WHICH APPELLANT MAY, IF HE WISHES, PERFECT A TIMELY APPEAL TO THE COURT
OF APPEALS.  MOODY V. FLOWERS, 387 U.S. 97. 
..END :















RAYMOND V. TOFFANY 389 U.S. 26 


NO. 572, MISC.  DECIDED OCTOBER 16, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


RAYMOND V. TOFFANY, COMMISSIONER OF MOTOR VEHICLES OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















UNITED STATES V. MERCANTILE TRUST CO. 389 U.S. 27 


NO. 87.  DECIDED OCTOBER 16, 1967.  - 263 F. SUPP. 340, REVERSED AND
REMANDED. 


UNITED STATES V. MERCANTILE TRUST CO. NATIONAL ASSOCIATION ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT IN UNITED STATES
V. FIRST CITY NATIONAL BANK OF HOUSTON, 386 U.S. 361. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












ASSOCIATED PRESS V. WALKER 389 U.S. 28 


NO. 306.  DECIDED OCTOBER 16, 1967.  - CERTIORARI GRANTED; 191 SO. 2D
727, REVERSED AND REMANDED. 


ASSOCIATED PRESS V. WALKER. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
LOUISIANA, SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
REVERSED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURS IN
THE RESULT FOR THE REASONS STATED IN MR. JUSTICE BLACK'S SEPARATE
OPINION IN CURTIS PUBLISHING CO. V. BUTTS, 388 U.S. 130, 170. 
..END :











LORDI V. EPSTEIN 389 U.S. 29 


NO. 322.  DECIDED OCTOBER 16, 1967.  - 261 F. SUPP. 921, AFFIRMED. 


LORDI, DIRECTOR OF DIVISION OF ALCOHOLIC BEVERAGE CONTROL, DEPARTMENT OF
LAW AND PUBLIC SAFETY OF NEW JERSEY V. EPSTEIN ET AL., TRADING AS
STRATFORD INTERNATIONAL TOBACCO CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED.  CF.
HOSTETTER V. IDLEWILD BON VOYAGE LIQUOR CORP., 377 U.S. 324. 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN WOULD NOTE PROBABLE
JURISDICTION AND SET THE CASE FOR ORAL ARGUMENT. 
..END :












NEWTON TRUCKING CO. V. UNITED STATES 389 U.S. 30 


NO. 328.  DECIDED OCTOBER 16, 1967.  - 264 F. SUPP. 869, AFFIRMED. 


LESTER C. NEWTON TRUCKING CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE WOULD NOTE PROBABLE
JURISDICTION AND SET THE CASE FOR ORAL ARGUMENT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












BOHANNAN V. ARIZONA 389 U.S. 1 


NO. 204.  DECIDED OCTOBER 9, 1967.  - 101 ARIZ. 520, 421 P.2D 877,
APPEAL DISMISSED. 


BOHANNAN V. ARIZONA EX REL. SMITH, ATTORNEY GENERAL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE MOTION TO DISMISS IS
GRANTED.  THE MOTION TO DISMISS IS ALSO GRANTED AND THE APPEAL IS
DISMISSED FOR WANT OF A PROPERLY PRESENTED FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

APPELLEE APPLIED IN THE COURT BELOW FOR A WRIT OF QUO WARRANTO.  THE
PETITION ASKED THAT APPELLANT BE OUSTED "FROM THE OFFICE HE PRESENTLY
HOLDS AS MEMBER OF THE STATE BOARD OF PUBLIC WELFARE OF THE STATE OF
ARIZONA, AND THAT HIS OFFICE BE DECLARED VACANT SO THAT A SUCCESSOR MAY
BE QUALIFIED AS PROVIDED BY LAW."  APPELLEE REFERRED IN ITS PETITION
AND BRIEF TO ARIZ. REV. STAT. SEC 38-447, WHICH PROVIDES THAT ANY
OFFICIAL WHO VIOLATES THE STATUTORY PROHIBITION AGAINST HAVING AN
INTEREST IN CONTRACTS MADE BY HIM IN HIS OFFICIAL CAPACITY "SHALL BE
PUNISHED BY A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS OR BY
IMPRISONMENT IN THE STATE PRISON FOR NOT MORE THAN FIVE YEARS, AND IS
FOREVER DISQUALIFIED FROM HOLDING ANY OFFICE IN THIS STATE."  APPELLEE,
HOWEVER, ASKED THE COURT BELOW ONLY TO REQUIRE APPELLANT "TO SHOW CAUSE
WHY HIS POSITION AS A MEMBER OF THE STATE BOARD OF PUBLIC WELFARE
SHOULD NOT BE DECLARED VACANT AND WHY HE SHOULD NOT BE FOUND TO
UNLAWFULLY HOLD SAID OFFICE, SO THAT A SUCCESSOR MAY BE QUALIFIED AS
PROVIDED BY LAW." 

APPELLANT FILED A MOTION TO QUASH THE APPLICATION ON THE GROUND THAT
UNDER THE STATUTORY SCHEME REMOVAL FROM OFFICE COULD BE IMPOSED ONLY
UPON ONE WHO HAD BEEN FOUND GUILTY IN A CRIMINAL PROCEEDING OF
VIOLATING THE STATUTORY PROVISIONS.  THAT MOTION WAS DENIED.  APPELLANT
THEN ANSWERED THE APPLICATION, ACKNOWLEDGING THAT CERTAIN MORTGAGE
TRANSACTIONS BETWEEN THE ARIZONA RETIREMENT BOARD AND THE ASSOCIATED
MORTGAGE AND INVESTMENT COMPANY TOOK PLACE WHILE HE WAS A MEMBER OF THE
FORMER AND PRESIDENT AND DIRECTOR OF THE LATTER.  ORAL ARGUMENT WAS
DENIED, THE CASE BEING DECIDED ON THE BRIEFS. 

UP TO THAT POINT, THEREFORE, THE MATTER WAS PRESENTED AS A QUESTION
OF STATE LAW - IT WAS CONTENDED THAT THE STATE STATUTES DID NOT PERMIT
REMOVAL FROM OFFICE PRIOR TO A CRIMINAL CONVICTION.  THE COURT,
HOWEVER, NOT ONLY RULED THAT APPELLANT SHOULD BE EXCLUDED FROM HIS
OFFICE AS A MEMBER OF THE STATE BOARD OF PUBLIC WELFARE BUT ALSO
"FOREVER DISQUALIFIED FROM HOLDING ANY PUBLIC OFFICE IN THE STATE OF
ARIZONA."  TO REACH THIS CONCLUSION, THE COURT CONSTRUED THE ARIZONA
STATUTES TO REQUIRE A CRIMINAL CONVICTION IF A FINE OR IMPRISONMENT
WERE TO BE IMPOSED ON THE PUBLIC OFFICIAL, BUT ONLY A "JUDICIAL
DETERMINATION OF THE FACT UPON WHICH THE DISQUALIFICATION RESTS," IF
DISQUALIFICATION WERE THE SANCTION TO BE IMPOSED.  THE QUO WARRANTO
PROCEEDING BEFORE THE COURT WAS HELD TO OFFER A SUFFICIENT "JUDICIAL
DETERMINATION OF THE FACT" TO EXCLUDE APPELLANT FROM THE OFFICE HE HELD
AND TO BAR HIM PERMANENTLY FROM PUBLIC OFFICE. 

IN HIS PETITION FOR REHEARING APPELLANT CHALLENGED ON FEDERAL
CONSTITUTIONAL GROUNDS THE COURT'S USE OF THE CIVIL QUO WARRANTO
PROCEEDING TO DISQUALIFY HIM PERMANENTLY FROM PUBLIC OFFICE.  HE
ASSERTED THAT THE STATUTE, AS CONSTRUED BY THE COURT, PERMITTED THE
PERMANENT BARRING OF A PERSON FROM PUBLIC OFFICE IN A CIVIL PROCEEDING
LACKING VITAL ELEMENTS OF DUE PROCESS.  APPELLANT ALSO CONTENDED THAT
THE STATUTE, AS CONSTRUED, CONSTITUTED A BILL OF ATTAINDER SINCE IT
OPERATED TO INFLICT PUNISHMENT WITHOUT THE CONSTITUTIONAL SAFEGUARDS OF
A JUDICIAL TRIAL. 

IT SEEMS OBVIOUS THAT UNTIL THE COURT HAD INTERPRETED THE STATUTE IN
APPELLANT'S CASE TO ALLOW PERMANENT DISQUALIFICATION IN A QUO WARRANTO
PROCEEDING IN WHICH THE PETITION ASKED ONLY FOR A SHOW-CAUSE ORDER AND
THAT APPELLANT BE DISCHARGED FROM HIS PRESENT OFFICE, APPELLANT HAD, AS
A PRACTICAL MATTER, NO REASON TO RAISE THE FEDERAL CLAIMS HE PRESENTS
TO THIS COURT.  APPELLEE DID NOT ASK FOR A DECLARATION OF PERMANENT
DISQUALIFICATION IN ITS PETITION FOR QUO WARRANTO.  THE ARIZONA STATUTE
THAT EXPRESSLY PROVIDES FOR THE JUDGMENT TO BE ENTERED IN A QUO
WARRANTO CASE, ARIZ. REV. STAT. SEC 12-2045, DOES NOT MENTION PERMANENT
DISQUALIFICATION FROM OFFICE.  THAT SECTION PROVIDES ONLY THAT "WHEN A
DEFENDANT IS ADJUDGED GUILTY OF USURPING OR INTRUDING INTO OR
UNLAWFULLY HOLDING AN OFFICE, FRANCHISE OR PRIVILEGE, JUDGMENT SHALL BE
GIVEN THAT THE DEFENDANT BE EXCLUDED FROM THE OFFICE, FRANCHISE OR
PRIVILEGE.  THE COURT MAY ALSO IMPOSE UPON DEFENDANT A FINE NOT
EXCEEDING TWO THOUSAND DOLLARS, WHICH, WHEN COLLECTED, SHALL BE PAID
INTO THE STATE TREASURY." 

IF A FEDERAL QUESTION ARISES BECAUSE OF AN UNEXPECTED CONSTRUCTION OF
A STATE STATUTE BY THE HIGHEST STATE COURT, THE QUESTION IS TIMELY
RAISED FOR PURPOSES OF REVIEW BY THIS COURT IF IT IS PRESENTED IN THE
PETITION FOR REHEARING.  BRINKERHOFF-FARIS TRUST & SAVINGS CO. V. HILL,
281 U.S. 673. 

A DECLARATION THAT A PERSON IS PERMANENTLY BARRED FROM ANY FUTURE
PUBLIC OFFICE RAISES CONSTITUTIONAL ISSUES THAT SIMPLE REMOVAL FROM
OFFICE DOES NOT.  SUCH A DECLARATION SWEEPS BROADLY AND MAY DESTROY THE
INDIVIDUAL'S RIGHT TO A LIVELIHOOD IN THE FIELD OF HIS GREATEST
COMPETENCE.  THE SERIOUS NATURE OF ANY SUCH HOLDING DEMANDS THAT THE
RULES OF PROCEDURAL DUE PROCESS BE COMPLIED WITH STRICTLY.  I BELIEVE
THAT THE ISSUES RAISED ARE SUBSTANTIAL AND WERE PROPERLY PRESENTED
BELOW.  PROBABLE JURISDICTION SHOULD BE NOTED, OR AT THE VERY LEAST WE
SHOULD TAKE THE CASE AND HEAR IT ARGUED, POSTPONING THE QUESTION OF
JURISDICTION TO THE MERITS. 
..END :
















BRENNER V. HOFSTETTER 389 U.S. 5 


NO. 46.  DECIDED OCTOBER 9, 1967.  - 53 C.C.P.A. (PAT.)  1545, 362 F.2D
293, VACATED AND REMANDED WITH DIRECTIONS TO DISMISS THE APPEAL AS
MOOT. 


BRENNER, COMMISSIONER OF PATENTS V. HOFSTETTER. 

CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS. 

PER CURIAM. 

UPON CONSIDERATION OF THE RESPONDENT'S SUGGESTION OF MOOTNESS THE
JUDGMENT IS VACATED AND THE CASE IF REMANDED TO THE UNITED STATES COURT
OF CUSTOMS AND PATENT APPEALS WITH DIRECTIONS TO DISMISS THE APPEAL TO
THAT COURT AS MOOT. 

MR. JUSTICE MARSHALL TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











KELLY V. LANE 389 U.S. 5 


NO. 256, MISC.  DECIDED OCTOBER 9, 1967.  - APPEAL DISMISSED. 


KELLY V. LANE, WARDEN. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF INDIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :


















TV PIX, INC. V. ALLARD 389 U.S. 6 


NO. 79.  DECIDED OCTOBER 9, 1967.  - VACATED AND REMANDED. 


TV PIX, INC., ET AL. V. ALLARD ET AL., COMMISSIONERS OF THE PUBLIC
SERVICE COMMISSION OF NEVADA. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEVADA. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT TO GIVE THAT COURT AN OPPORTUNITY TO CONSIDER THE APPELLANTS'
MOTION TO FILE A SUPPLEMENTAL COMPLAINT BASED UPON CHANGES IN THE
RELEVANT NEVADA LAW. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











STRICKLAND V. MISSISSIPPI 389 U.S. 6 


NO. 269, MISC.  DECIDED OCTOBER 9, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


STRICKLAND V. MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PETRONIA V. ALASKA 389 U.S. 7 


NO. 108.  DECIDED OCTOBER 9, 1967.  - 69 WASH. 2D 460, 418 P.2D 755,
APPEAL DISMISSED. 


PETRONIA ET AL. V. ALASKA. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














MORGAN V. ALABAMA 389 U.S. 7 


NO. 170.  DECIDED OCTOBER 9, 1967.  - 280 ALA. 414, 194 SO. 2D 820,
APPEAL DISMISSED AND CERTIORARI DENIED. 


MORGAN ET AL., DBA M & T GUM MACHINE CO. V. ALABAMA. 

APPEAL FROM THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















LATTIMER V. CRYSTAL CLEAR 389 U.S. 8 


NO. 235.  DECIDED OCTOBER 9, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


LATTIMER V. CRYSTAL CLEAR, INC., ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















NEW JERSEY CHAPTER V. NEW JERSEY STATE BOARD  389 U.S. 8 


NO. 273.  DECIDED OCTOBER 9, 1967.  - 48 N.J. 581, 227 A.2D 313, APPEAL
DISMISSED AND CERTIORARI DENIED. 


NEW JERSEY CHAPTER, AMERICAN INSTITUTE OF PLANNERS, ET AL. V. NEW JERSEY
STATE BOARD OF PROFESSIONAL PLANNERS ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















NELLES V. BARTLETT 389 U.S. 9 


NO. 327.  DECIDED OCTOBER 9, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


NELLES V. BARTLETT, SUPERINTENDENT OF PUBLIC INSTRUCTION OF MICHIGAN, ET
AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















WATSON V. MAINE 389 U.S. 9 


NO. 332.  DECIDED OCTOBER 9, 1967.  - 223 A.2D 834, APPEAL DISMISSED. 


WATSON, DBA MAINE-WIDE ADJUSTERS V. STATE OF MAINE COMMISSIONER OF
BANKING. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MAINE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















HAMRICK V. ALABAMA 389 U.S. 10 


NO. 345.  DECIDED OCTOBER 9, 1967 - 281 ALA. 150, 199 SO. 2D 849, APPEAL
DISMISSED. 


HAMRICK V. ALABAMA. 

APPEAL FROM THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















SMITH V. ARIZONA 389 U.S. 10 


NO. 26, MISC.  DECIDED OCTOBER 9, 1967.  - CERTIORARI GRANTED; 98 ARIZ.
45, 401 P.2D 739, VACATED AND REMANDED. 


SMITH V. ARIZONA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF ARIZONA IN LIGHT OF ANDERS V.
CALIFORNIA, 386 U.S. 738. 

MR. JUSTICE BLACK AND MR. JUSTICE STEWART DISSENT. 
..END :













RHOADES V. SCHOOL DISTRICT 389 U.S. 11 


NO. 225.  DECIDED OCTOBER 9, 1967.  - 424 PA. 202, 226 A.2D 53, APPEAL
DISMISSED. 


RHOADES ET AL. V. SCHOOL DISTRICT OF ABINGTON TOWNSHIP ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














HOHENSEE V. MINEAR 389 U.S. 11 


NO. 190, MISC.  DECIDED OCTOBER 9, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HOHENSEE ET AL. V. MINEAR. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















COBB V. GEORGIA 389 U.S. 12 


NO. 51, MISC.  DECIDED OCTOBER 9, 1967.  - CERTIORARI GRANTED; 222 GA.
733, 152 S.E.2D 403, REVERSED. 


COBB V. GEORGIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
WHITUS V. GEORGIA, 385 U.S. 545. 
..END :
















PHILLIPS V. INDIANA 389 U.S. 12 


NO. 288, MISC.  DECIDED OCTOBER 9, 1967.  - IND. - , 222 N.E.2D 821,
APPEAL DISMISSED. 


PHILLIPS V. INDIANA. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















TROUTT V. WILSON 389 U.S. 13 


NO. 57, MISC.  DECIDED OCTOBER 9, 1967.  - 219 TENN. 400, 410 S.W.2D
177, APPEAL DISMISSED AND CERTIORARI DENIED. 


TROUTT V. CARL K. WILSON CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















GARVIN V. MASSACHUSETTS 389 U.S. 13 


NO. 74, MISC.  DECIDED OCTOBER 9, 1967.  - 351 MASS. 661, 223 N.E.2D
396, APPEAL DISMISSED AND CERTIORARI DENIED. 


GARVIN V. MASSACHUSETTS. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PRICE V. ROAD COMMISSION 389 U.S. 14 


NO. 176.  DECIDED OCTOBER 9, 1967.* - APPEALS DISMISSED AND CERTIORARI
DENIED. 

*TOGETHER WITH NO. 177, WETHERALL ET AL. V. STATE ROAD COMMISSION OF
WEST VIRGINIA ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


PRICE, DBA HOWARD PRICE & CO. V. STATE ROAD COMMISSION OF WEST VIRGINIA
ET AL. 

APPEAL FROM THE CIRCUIT COURT OF WEST VIRGINIA, KANAWHA COUNTY. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEALS ARE DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEALS WERE
TAKEN AS PETITIONS FOR WRITS OF CERTIORARI, CERTIORARI IS DENIED. 

THE CHIEF JUSTICE AND MR. JUSTICE BRENNAN ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :









LOVING V. VIRGINIA 388 U.S. 1 


NO. 395.  ARGUED APRIL 10, 1967.  - DECIDED JUNE 12, 1967.  - 206 VA.
924, 147 S.E.2D 78, REVERSED. 


VIRGINIA'S STATUTORY SCHEME TO PREVENT MARRIAGES BETWEEN PERSONS
SOLELY ON THE BASIS OF RACIAL CLASSIFICATIONS HELD TO VIOLATE THE EQUAL
PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT.  PP. 4
12. 

LOVING ET UX. V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A CONSTITUTIONAL QUESTION NEVER ADDRESSED BY THIS
COURT: WHETHER A STATUTORY SCHEME ADOPTED BY THE STATE OF VIRGINIA TO
PREVENT MARRIAGES BETWEEN PERSONS SOLELY ON THE BASIS OF RACIAL
CLASSIFICATIONS VIOLATES THE EQUAL PROTECTION AND DUE PROCESS CLAUSES
OF THE FOURTEENTH AMENDMENT.  (FN1)  FOR REASONS WHICH SEEM TO US TO
REFLECT THE CENTRAL MEANING OF THOE CONSTITUTIONAL COMMANDS, WE
CONCLUDE THAT THESE STATUTES CANNOT STAND CONSISTENTLY WITH THE
FOURTEENTH AMENDMENT. 

IN JUNE 1958, TWO RESIDENTS OF VIRGINIA, MILDRED JETER, A NEGRO
WOMAN, AND RICHARD LOVING, A WHITE MAN, WERE MARRIED IN THE DISTRICT OF
COLUMBIA PURSUANT TO ITS LAWS.  SHORTLY AFTER THEIR MARRIAGE, THE
LOVINGS RETURNED TO VIRGINIA AND ESTABLISHED THEIR MARITAL ABODE IN
CAROLINE COUNTY.  AT THE OCTOBER TERM, 1958, OF THE CIRCUIT COURT OF
CAROLINE COUNTY, A GRAND JURY ISSUED AN INDICTMENT CHARGING THE LOVINGS
WITH VIOLATING VIRGINIA'S BAN ON INTERRACIAL MARRIAGES.  ON JANUARY 6,
1959, THE LOVINGS PLEADED GUILTY TO THE CHARGE AND WERE SENTENCED TO
ONE YEAR IN JAIL; HOWEVER, THE TRIAL JUDGE SUSPENDED THE SENTENCE FOR A
PERIOD OF 25 YEARS ON THE CONDITION THAT THE LOVINGS LEAVE THE STATE
AND NOT RETURN TO VIRGINIA TOGETHER FOR 25 YEARS.  HE STATED IN AN
OPINION THAT: 

"ALMIGHTY GOD CREATED THE RACES WHITE, BLACK, YELLOW, MALAY AND RED,
AND HE PLACED THEM ON SEPARATE CONTINENTS.  AND BUT FOR THE
INTERFERENCE WITH HIS ARRANGEMENT THERE WOULD BE NO CAUSE FOR SUCH
MARRIAGES.  THE FACT THAT HE SEPARATED THE RACES SHOWS THAT HE DID NOT
INTEND FOR THE RACES TO MIX." 

AFTER THEIR CONVICTIONS, THE LOVINGS TOOK UP RESIDENCE IN THE
DISTRICT OF COLUMBIA.  ON NOVEMBER 6, 1963, THEY FILED A MOTION IN THE
STATE TRIAL COURT TO VACATE THE JUDGMENT AND SET ASIDE THE SENTENCE ON
THE GROUND THAT THE STATUTES WHICH THEY HAD VIOLATED WERE REPUGNANT TO
THE FOURTEENTH AMENDMENT.  THE MOTION NOT HAVING BEEN DECIDED BY
OCTOBER 28, 1964, THE LOVINGS INSTITUTED A CLASS ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA REQUESTING
THAT A THREE-JUDGE COURT BE CONVENED TO DECLARE THE VIRGINIA
ANTIMISCEGENATION STATUTES UNCONSTITUTIONAL AND TO ENJOIN STATE
OFFICIALS FROM ENFORCING THEIR CONVICTIONS.  ON JANUARY 22, 1965, THE
STATE TRIAL JUDGE DENIED THE MOTION TO VACATE THE SENTENCES, AND THE
LOVINGS PERFECTE AN APPEAL TO THE SUPREME COURT OF APPEALS OF
VIRGINIA.  ON FEBRUARY 11, 1965, THE THREE-JUDGE DISTRICT COURT
CONTINUED THE CASE TO ALLOW THE LOVINGS TO PRESENT THEIR CONSTITUTIONAL
CLAIMS TO THE HIGHEST STATE COURT. 

THE SUPREME COURT OF APPEALS UPHELD THE CONSTITUTIONALITY OF THE
ANTIMISCEGENATION STATUTES AND, AFTER MODIFYING THE SENTENCE, AFFIRMED
THE CONVICTIONS.  (FN2)  THE LOVINGS APPEALED THIS DECISION, AND WE
NOTED PROBABLE JURISDICTION ON DECEMBER 12, 1966, 385 U.S. 986. 

THE TWO STATUTES UNDER WHICH APPELLANTS WERE CONVICTED AND SENTENCED
ARE PART OF A COMPREHENSIVE STATUTORY SCHEME AIMED AT PROHIBITING AND
PUNISHING INTERRACIAL MARRIAGES.  THE LOVINGS WERE CONVICTED OF
VIOLATING SEC 20-58 OF THE VIRGINIA CODE: 

"LEAVING STATE TO EVADE LAW.  - IF ANY WHITE PERSON AND COLORED
PERSON SHALL GO OUT OF THIS STATE, FOR THE PURPOSE OF BEING MARRIED,
AND WITH THE INTENTION OF RETURNING, AND BE MARRIED OUT OF IT, AND
AFTERWARDS RETURN TO AND RESIDE IN IT, COHABITING AS MAN AND WIFE, THEY
SHALL BE PUNISHED AS PROVIDED IN SEC 20-59, AND THE MARRIAGE SHALL BE
GOVERNED BY THE SAME LAW AS IF IT HAD BEEN SOLEMNIZED IN THIS STATE. 
THE FACT OF THEIR COHABITATION HERE AS MAN AND WIFE SHALL BE EVIDENCE
OF THEIR MARRIAGE." 


"PUNISHMENT FOR MARRIAGE.  - IF ANY WHITE PERSON INTERMARRY WITH A
COLORED PERSON, OR ANY COLORED PERSON INTERMARRY WITH A WHITE PERSON,
HE SHALL BE GUILTY OF A FELONY AND SHALL BE PUNISHED BY CONFINEMENT IN
THE PENITENTIARY FOR NOT LESS THAN ONE NOR MORE THAN FIVE YEARS." 

OTHER CENTRAL PROVISIONS IN THE VIRGINIA STATUTORY SCHEME ARE SEC 20
57, WHICH AUTOMATICALLY VOIDS ALL MARRIAGES BETWEEN "A WHITE PERSON AND
A COLORED PERSON" WITHOUT ANY JUDICIAL PROCEEDING, (FN3) AND SECS 20-54
AND 1-14 WHICH, RESPECTIVELY, DEFINE "WHITE PERSONS" AND "COLORED
PERSONS AND INDIANS" FOR PURPOSES OF THE STATUTORY PROHIBITIONS.  (FN4)
THE LOVINGS HAVE NEVER DISPUTED IN THE COURSE OF THIS LITIGATION THAT
MRS. LOVING IS A "COLORED PERSON" OR THAT MR. LOVING IS A "WHITE
PERSON" WITHIN THE MEANINGS GIVEN THOSE TERMS BY THE VIRGINIA
STATUTES. 

VIRGINIA IS NOW ONE OF 16 STATES WHICH PROHIBIT AND PUNISH MARRIAGES
ON THE BASIS OF RACIAL CLASSIFICATIONS.  (FN5)  PENALTIES FOR
MISCEGENATION AROSE AS AN INCIDENT TO SLAVERY AND HAVE BEEN COMMON IN
VIRGINIA SINCE THE COLONIAL PERIOD.  (FN6)  THE PRESENT STATUTORY
SCHEME DATES FROM THE ADOPTION OF THE RACIAL INTEGRITY ACT OF 1924,
PASSED DURING THE PERIOD OF EXTREME NATIVISM WHICH FOLLOWED THE END OF
THE FIRST WORLD WAR.  THE CENTRAL FEATURES OF THIS ACT, AND CURRENT
VIRGINIA LAW, ARE THE ABSOLUTE PROHIBITION OF A "WHITE PERSON" MARRYING
OTHER THAN ANOTHER "WHITE PERSON," (FN7) A PROHIBITION AGAINST ISSUING
MARRIAGE LICENSES UNTIL THE ISSUING OFFICIAL IS SATISFIED THAT THE
APPLICANTS' STATEMENTS AS TO THEIR RACE ARE CORRECT, (FN8) CERTIFICATES
OF "RACIAL COMPOSITION" TO BE KEPT BY BOTH LOCAL AND STATE REGISTRARS,
(FN9) AND THE CARRYING FORWARD OF EARLIER PROHIBITIONS AGAINST RACIAL
INTERMARRIAGE.  (FN10)

          I. 

IN UPHOLDING THE CONSTITUTIONALITY OF THESE PROVISIONS IN THE
DECISION BELOW, THE SUPREME COURT OF APPEALS OF VIRGINIA REFERRED TO
ITS 1955 DECISION IN NAIM V. NAIM, 197 VA. 80, 87 S.E.2D 749, AS
STATING THE REASONS SUPPORTING THE VALIDITY OF THESE LAWS.  IN NAIM,
THE STATE COURT CONCLUDED THAT THE STATE'S LEGITIMATE PURPOSES WERE "TO
PRESERVE THE RACIAL INTEGRITY OF ITS CITIZENS," AND TO PREVENT "THE
CORRUPTION OF BLOOD," "A MONGREL BREED OF CITIZENS," AND "THE
OBLITERATION OF RACIAL PRIDE," OBVIOUSLY AN ENDORSEMENT OF THE DOCTRINE
OF WHITE SUPREMACY.  ID., AT 90, 87 S.E.2D, AT 756.   THE COURT ALSO
REASONED THAT MARRIAGE HAS TRADITIONALLY BEEN SUBJECT TO STATE
REGULATION WITHOUT FEDERAL INTERVENTION, AND, CONSEQUENTLY, THE
REGULATION OF MARRIAGE SHOULD BE LEFT TO EXCLUSIVE STATE CONTROL BY THE
TENTH AMENDMENT. 

WHILE THE STATE COURT IS NO DOUBT CORRECT IN ASSERTING THAT MARRIAGE
IS A SOCIAL RELATION SUBJECT TO THE STATE'S POLICE POWER, MAYNARD V.
HILL, 125 U.S. 190 (1888), THE STATE DOES NOT CONTEND IN ITS ARGUMENT
BEFORE THIS COURT THAT ITS POWERS TO REGULATE MARRIAGE ARE UNLIMITED
NOTWITHSTANDING THE COMMANDS OF THE FOURTEENTH AMENDMENT.  NOR COULD IT
DO SO IN LIGHT OF MEYER V. NEBRASKA, 262 U.S. 390 (1923), AND SKINNER
V. OKLAHOMA, 316 U.S. 535 (1942).  INSTEAD, THE STATE ARGUES THAT THE
MEANING OF THE EQUAL PROTECTION CLAUSE, AS ILLUMINATED BY THE
STATEMENTS OF THE FRAMERS, IS ONLY THAT STATE PENAL LAWS CONTAINING AN
INTERRACIAL ELEMENT AS PART OF THE DEFINITION OF THE OFFENSE MUST APPLY
EQUALLY TO WHITES AND NEGROES IN THE SENSE THAT MEMBERS OF EACH RACE
ARE PUNISHED TO THE SAME DEGREE.  THUS, THE STATE CONTENDS THAT,
BECAUSE ITS MISCEGENATION STATUTES PUNISH EQUALLY BOTH THE WHITE AND
THE NEGRO PARTICIPANTS IN AN INTERRACIAL MARRIAGE, THESE STATUTES,
DESPITE THEIR RELIANCE ON RACIAL CLASSIFICATIONS, DO NOT CONSTITUTE AN
INVIDIOUS DISCRIMINATION BASED UPON RACE.  THE SECOND ARGUMENT ADVANCED
BY THE STATE ASSUMES THE VALIDITY OF ITS EQUAL APPLICATION THEORY.  THE
ARGUMENT IS THAT, IF THE EQUAL PROTECTION CLAUSE DOES NOT OUTLAW
MISCEGENATION STATUTES BECAUSE OF THEIR RELIANCE ON RACIAL
CLASSIFICATIONS, THE QUESTION OF CONSTITUTIONALITY WOULD THUS BECOME
WHETHER THERE WAS ANY RATIONAL BASIS FOR A STATE TO TREAT INTERRACIAL
MARRIAGES DIFFERENTLY FROM OTHER MARRIAGES.  ON THIS QUESTION, THE
STATE ARGUES, THE SCIENTIFIC EVIDENCE IS SUBSTANTIALLY IN DOUBT AND,
CONSEQUENTLY, THIS COURT SHOULD DEFER TO THE WISDOM OF THE STATE
LEGISLATURE IN ADOPTING ITS POLICY OF DISCOURAGING INTERRACIAL
MARRIAGES. 

BECAUSE WE REJECT THE NOTION THAT THE MERE "EQUAL APPLICATION" OF A
STATUTE CONTAINING RACIAL CLASSIFICATIONS IS ENOUGH TO REMOVE THE
CLASSIFICATIONS FROM THE FOURTEENTH AMENDMENT'S PROSCRIPTION OF ALL
INVIDIOUS RACIAL DISCRIMINATIONS, WE DO NOT ACCEPT THE STATE'S
CONTENTION THAT THESE STATUTES SHOULD BE UPHELD IF THERE IS ANY
POSSIBLE BASIS FOR CONCLUDING THAT THEY SERVE A RATIONAL PURPOSE.  THE
MERE FACT OF EQUAL APPLICATION DOES NOT MEAN THAT OUR ANALYSIS OF THESE
STATUTES SHOULD FOLLOW THE APPROACH WE HAVE TAKEN IN CASES INVOLVING NO
RACIAL DISCRIMINATION WHERE THE EQUAL PROTECTION CLAUSE HAS BEEN
ARRAYED AGAINST A STATUTE DISCRIMINATING BETWEEN THE KINDS OF
ADVERTISING WHICH MAY BE DISPLAYED ON TRUCKS IN NEW YORK CITY, RAILWAY
EXPRESS AGENCY, INC. V. NEW YORK, 336 U.S. 106 (1949), OR AN EXEMPTION
IN OHIO'S AD VALOREM TAX FOR MERCHANDISE OWNED BY A NON-RESIDENT IN A
STORAGE WAREHOUSE, ALLIED STORES OF OHIO, INC. V. BOWERS, 358 U.S. 522
(1959).  IN THESE CASES, INVOLVING DISTINCTIONS NOT DRAWN ACCORDING TO
RACE, THE COURT HAS MERELY ASKED WHETHER THERE IS ANY RATIONAL
FOUNDATION FOR THE DISCRIMINATIONS, AND HAS DEFERRED TO THE WISDOM OF
THE STATE LEGISLATURES.  IN THE CASE AT BAR, HOWEVER, WE DEAL WITH
STATUTES CONTAINING RACIAL CLASSIFICATIONS, AND THE FACT OF EQUAL
APPLICATION DOES NOT IMMUNIZE THE STATUTE FROM THE VERY HEAVY BURDEN OF
JUSTIFICATION WHICH THE FOURTEENTH AMENDMENT HAS TRADITIONALLY REQUIRED
OF STATE STATUTES DRAWN ACCORDING TO RACE. 

THE STATE ARGUES THAT STATEMENTS IN THE THIRTY-NINTH CONGRESS ABOUT
THE TIME OF THE PASSAGE OF THE FOURTEENTH AMENDMENT INDICATE THAT THE
FRAMERS DID NOT INTEND THE AMENDMENT TO MAKE UNCONSTITUTIONAL STATE
MISCEGENATION LAWS.  MANY OF THE STATEMENTS ALLUDED TO BY THE STATE
CONCERN THE DEBATES OVER THE FREEDMEN'S BUREAU BILL, WHICH PRESIDENT
JOHNSON VETOED, AND THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27, ENACTED
OVER THIS VETO.  WHILE THESE STATEMENTS HAVE SOME RELEVANCE TO THE
INTENTION OF CONGRESS IN SUBMITTING THE FOURTEENTH AMENDMENT, IT MUST
BE UNDERSTOOD THAT THEY PERTAINED TO THE PASSAGE OF SPECIFIC STATUTES
AND NOT TO THE BROADER ORGANIC PURPOSE OF A CONSTITUTIONAL AMENDMENT. 
AS FOR THE VARIOUS STATEMENTS DIRECTLY CONCERNING THE FOURTEENTH
AMENDMENT, WE HAVE SAID IN CONNECTION WITH A RELATED PROBLEM, THAT
ALTHOUGH THESE HISTORICAL SOURCES "CAST SOME LIGHT" THEY ARE NOT
SUFFICIENT TO RESOLVE THE PROBLEM; "AT BEST, THEY ARE INCONCLUSIVE. 
THE MOST AVID PROPONENTS OF THE POST-WAR AMENDMENTS UNDOUBTEDLY
INTENDED THEM TO REMOVE ALL LEGAL DISTINCTIONS AMONG 'ALL PERSONS BORN
OR NATURALIZED IN THE UNITED STATES.'  THEIR OPPONENTS, JUST AS
CERTAINLY, WERE ANTAGONISTIC TO BOTH THE LETTER AND THE SPIRIT OF THE
AMENDMENTS AND WISHED THEM TO HAVE THE MOST LIMITED EFFECT."  BROWN V.
BOARD OF EDUCATION, 347 U.S. 483, 489 (1954).  SEE ALSO STRAUDER V.
WEST VIRGINIA, 100 U.S. 303, 310 (1880).  WE HAVE REJECTED THE
PROPOSITION THAT THE DEBATES IN THE THIRTY-NINTH CONGRESS OR IN THE
STATE LEGISLATURES WHICH RATIFIED THE FOURTEENTH AMENDMENT SUPPORTED
THE THEORY ADVANCED BY THE STATE, THAT THE REQUIREMENT OF EQUAL
PROTECTION OF THE LAWS IS SATISFIED BY PENAL LAWS DEFINING OFFENSES
BASED ON RACIAL CLASSIFICATIONS SO LONG AS WHITE AND NEGRO PARTICIPANTS
IN THE OFFENSE WERE SIMILARLY PUNISHED.  MCLAUGHLIN V. FLORIDA, 379
U.S. 184 (1964). 

THE STATE FINDS SUPPORT FOR ITS "EQUAL APPLICATION" THEORY IN THE
DECISION OF THE COURT IN PACE V. ALABAMA, 106 U.S. 583 (1883).  IN THAT
CASE, THE COURT UPHELD A CONVICTION UNDER AN ALABAMA STATUTE FORBIDDING
ADULTERY OR FORNICATION BETWEEN A WHITE PERSON AND A NEGRO WHICH
IMPOSED A GREATER PENALTY THAN THAT OF A STATUTE PROSCRIBING SIMILAR
CONDUCT BY MEMBERS OF THE SAME RACE.  THE COURT REASONED THAT THE
STATUTE COULD NOT BE SAID TO DISCRIMINATE AGAINST NEGROES BECAUSE THE
PUNISHMENT FOR EACH PARTICIPANT IN THE OFFENSE WAS THE SAME.  HOWEVER,
AS RECENTLY AS THE 1964 TERM, IN REJECTING THE REASONING OF THAT CASE,
WE STATED "PACE REPRESENTS A LIMITED VIEW OF THE EQUAL PROTECTION
CLAUSE WHICH HAS NOT WITHSTOOD ANALYSIS IN THE SUBSEQUENT DECISIONS OF
THIS COURT."  MCLAUGHLIN V. FLORIDA, SUPRA, AT 188.  AS WE THERE
DEMONSTRATED, THE EQUAL PROTECTION CLAUSE REQUIRES THE CONSIDERATION OF
WHETHER THE CLASSIFICATIONS DRAWN BY ANY STATUTE CONSTITUTE AN
ARBITRARY AND INVIDIOUS DISCRIMINATION.  THE CLEAR AND CENTRAL PURPOSE
OF THE FOURTEENTH AMENDMENT WAS TO ELIMINATE ALL OFFICIAL STATE SOURCES
OF INVIDIOUS RACIAL DISCRIMINATION IN THE STATES.  SLAUGHTER-HOUSE
CASES, 16 WALL.  36, 71 (1873); STRAUDER V. WEST VIRGINIA, 100 U.S.
303, 307-308 (1880); EX PARTE VIRGINIA, 100 U.S. 339, 344-345 (1880);
SHELLEY V. KRAEMER, 334 U.S. 1 (1948); BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715 (1961). 

THERE CAN BE NO QUESTION BUT THAT VIRGINIA'S MISCEGENATION STATUTES
REST SOLELY UPON DISTINCTIONS DRAWN ACCORDING TO RACE.  THE STATUTES
PROSCRIBE GENERALLY ACCEPTED CONDUCT IF ENGAGED IN BY MEMBERS OF
DIFFERENT RACES.  OVER THE YEARS, THIS COURT HAS CONSISTENTLY
REPUDIATED "DISTINCTIONS BETWEEN CITIZENS SOLELY BECAUSE OF THEIR
ANCESTRY" AS BEING "ODIOUS TO A FREE PEOPLE WHOSE INSTITUTIONS ARE
FOUNDED UPON THE DOCTRINE OF EQUALITY."  HIRABAYASHI V. UNITED STATES,
320 U.S. 81, 100 (1943).  AT THE VERY LEAST, THE EQUAL PROTECTION
CLAUSE DEMANDS THAT RACIAL CLASSIFICATIONS, ESPECIALLY SUSPECT IN
CRIMINAL STATUTES, BE SUBJECTED TO THE "MOST RIGID SCRUTINY," KOREMATSU
V. UNITED STATES, 323 U.S. 214, 216 (1944), AND, IF THEY ARE EVER TO BE
UPHELD, THEY MUST BE SHOWN TO BE NECESSARY TO THE ACCOMPLISHMENT OF
SOME PERMISSIBLE STATE OBJECTIVE, INDEPENDENT OF THE RACIAL
DISCRIMINATION WHICH IT WAS THE OBJECT OF THE FOURTEENTH AMENDMENT TO
ELIMINATE.  INDEED, TWO MEMBERS OF THIS COURT HAVE ALREADY STATED THAT
THEY "CANNOT CONCEIVE OF A VALID LEGISLATIVE PURPOSE  ...  WHICH MAKES
THE COLOR OF A PERSON'S SKIN THE TEST OF WHETHER HIS CONDUCT IS A
CRIMINAL OFFENSE."  MCLAUGHLIN V. FLORIDA, SUPRA, AT 198 (STEWART, J.,
JOINED BY DOUGLAS, J., CONCURRING). 

THERE IS PATENTLY NO LEGITIMATE OVERRIDING PURPOSE INDEPENDENT OF
INVIDIOUS RACIAL DISCRIMINATION WHICH JUSTIFIES THIS CLASSIFICATION. 
THE FACT THAT VIRGINIA PROHIBITS ONLY INTERRACIAL MARRIAGES INVOLVING
WHITE PERSONS DEMONSTRATES THAT THE RACIAL CLASSIFICATIONS MUST STAND
ON THEIR OWN JUSTIFICATION AS MEASURES DESIGNED TO MAINTAIN WHITE
SUPREMACY.  (FN11)  WE HAVE CONSISTENTLY DENIED THE CONSTITUTIONALITY
OF MEASURES WHICH RESTRICT THE RIGHTS OF CITIZENS ON ACCOUNT OF RACE. 
THERE CAN BE NO DOUBT THAT RESTRICTING THE FREEDOM TO MARRY SOLELY
BECAUSE OF RACIAL CLASSIFICATIONS VIOLATES THE CENTRAL MEANING OF THE
EQUAL PROTECTION CLAUSE. 

   II. 

THESE STATUTES ALSO DEPRIVE THE LOVINGS OF LIBERTY WITHOUT DUE
PROCESS OF LAW IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE FREEDOM TO MARRY HAS LONG BEEN RECOGNIZED AS ONE OF THE
VITAL PERSONAL RIGHTS ESSENTIAL TO THE ORDERLY PURSUIT OF HAPPINESS BY
FREE MEN. 

MARRIAGE IS ONE OF THE "BASIC CIVIL RIGHTS OF MAN," FUNDAMENTAL TO
OUR VERY EXISTENCE AND SURVIVAL.  SKINNER V. OKLAHOMA, 316 U.S. 535,
541 (1942).  SEE ALSO MAYNARD V. HILL, 125 U.S. 190 (1888).  TO DENY
THIS FUNDAMENTAL FREEDOM ON SO UNSUPPORTABLE A BASIS AS THE RACIAL
CLASSIFICATIONS EMBODIED IN THESE STATUTES, CLASSIFICATIONS SO DIRECTLY
SUBVERSIVE OF THE PRINCIPLE OF EQUALITY AT THE HEART OF THE FOURTEENTH
AMENDMENT, IS SURELY TO DEPRIVE ALL THE STATE'S CITIZENS OF LIBERTY
WITHOUT DUE PROCESS OF LAW.  THE FOURTEENTH AMENDMENT REQUIRES THAT THE
FREEDOM OF CHOICE TO MARRY NOT BE RESTRICTED BY INVIDIOUS RACIAL
DISCRIMINATIONS.  UNDER OUR CONSTITUTION, THE FREEDOM TO MARRY, OR NOT
MARRY, A PERSON OF ANOTHER RACE RESIDES WITH THE INDIVIDUAL AND CANNOT
BE INFRINGED BY THE STATE. 

THESE CONVICTIONS MUST BE REVERSED.  IT IS SO ORDERED. 

FN1  SECTION 1 OF THE FOURTEENTH AMENDMENT PROVIDES: 

"ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES AND SUBJECT TO
THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE
STATE WHEREIN THEY RESIDE.  NO STATE SHALL MAKE OR ENFORCE ANY LAW
WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE
UNITED STATES; NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY,
OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS." 

FN2  206 VA. 924, 147 S.E.2D 78 (1966). 

FN3  SECTION 20-57 OF THE VIRGINIA CODE PROVIDES: 

"MARRIAGES VOID WITHOUT DECREE.  - ALL MARRIAGES BETWEEN A WHITE
PERSON AND A COLORED PERSON SHALL BE ABSOLUTELY VOID WITHOUT ANY DECREE
OF DIVORCE OR OTHER LEGAL PROCESS."  VA. CODE ANN. SEC 20-57 (1960
REPL.  VOL.). 

FN4  SECTION 20-54 OF THE VIRGINIA CODE PROVIDES: 

"INTERMARRIAGE PROHIBITED; MEANING OF TERM 'WHITE PERSONS.'  - IT
SHALL HEREAFTER BE UNLAWFUL FOR ANY WHITE PERSON IN THIS STATE TO MARRY
ANY SAVE A WHITE PERSON, OR A PERSON WITH NO OTHER ADMIXTURE OF BLOOD
THAN WHITE AND AMERICAN INDIAN.  FOR THE PURPOSE OF THIS CHAPTER, THE
TERM 'WHITE PERSON' SHALL APPLY ONLY TO SUCH PERSON AS HAS NO TRACE
WHATEVER OF ANY BLOOD OTHER THAN CAUCASIAN; BUT PERSONS WHO HAVE ONE
SIXTEENTH OR LESS OF THE BLOOD OF THE AMERICAN INDIAN AND HAVE NO OTHER
NON-CAUCASIC BLOOD SHALL BE DEEMED TO BE WHITE PERSONS.  ALL LAWS
HERETOFORE PASSED AND NOW IN EFFECT REGARDING THE INTERMARRIAGE OF
WHITE AND COLORED PERSONS SHALL APPLY TO MARRIAGES PROHIBITED BY THIS
CHAPTER."  VA. CODE ANN. SEC 20-54 (1960 REPL.  VOL.). 

THE EXCEPTION FOR PERSONS WITH LESS THAN ONE-SIXTEENTH "OF THE BLOOD
OF THE AMERICAN INDIAN" IS APPARENTLY ACCOUNTED FOR, IN THE WORDS OF A
TRACT ISSUED BY THE REGISTRAR OF THE STATE BUREAU OF VITAL STATISTICS,
BY "THE DESIRE OF ALL TO RECOGNIZE AS AN INTEGRAL AND HONORED PART OF
THE WHITE RACE THE DESCENDANTS OF JOHN ROLFE AND POCAHONTAS  ...  ." 
PLECKER, THE NEW FAMILY AND RACE IMPROVEMENT, 17 VA. HEALTH BULL.,
EXTRA NO. 12, AT 25-26 (NEW FAMILY SERIES NO. 5, 1925), CITED IN
WADLINGTON, THE LOVING CASE: VIRGINIA'S ANTI-MISCEGENATION STATUTE IN
HISTORICAL PERSPECTIVE, 52 VA. L. REV. 1189, 1202, N. 93 (1966). 


"COLORED PERSONS AND INDIANS DEFINED.  - EVERY PERSON IN WHOM THERE
IS ASCERTAINABLE ANY NEGRO BLOOD SHALL BE DEEMED AND TAKEN TO BE A
COLORED PERSON, AND EVERY PERSON NOT A COLORED PERSON HAVING ONE FOURTH
OR MORE OF AMERICAN INDIAN BLOOD SHALL BE DEEMED AN AMERICAN INDIAN;
EXCEPT THAT MEMBERS OF INDIAN TRIBES EXISTING IN THIS COMMONWEALTH
HAVING ONE FOURTH OR MORE OF INDIAN BLOOD AND LESS THAN ONE-SIXTEENTH
OF NEGRO BLOOD SHALL BE DEEMED TRIBAL INDIANS."  VA. CODE ANN. SEC 1-14
(1960 REPL.  VOL.). 

FN5  AFTER THE INITIATION OF THIS LITIGATION, MARYLAND REPEALED ITS
PROHIBITIONS AGAINST INTERRACIAL MARRIAGE, MD. LAWS 1967, C. 6, LEAVING
VIRGINIA AND 15 OTHER STATES WITH STATUTES OUTLAWING INTERRACIAL
MARRIAGE: ALABAMA, ALA. CONST., ART. 4, SEC 102, ALA. CODE, TIT. 14,
SEC 360 (1958); ARKANSAS, ARK. STAT. ANN. SEC 55-104 (1947); DELAWARE,
DEL. CODE ANN., TIT.  13, SEC 101 (1953); FLORIDA, FLA. CONST., ART.
16, SEC 24, FLA. STAT. SEC 741.11 (1965); GEORGIA, GA. CODE ANN. SEC 53
106 (1961); KENTUCKY, KY. REV. STAT. ANN. SEC 402.020 (SUPP.  1966);
LOUISIANA, LA. REV. STAT. SEC 14:79 (1950); MISSISSIPPI, MISS.  CONST.,
ART. 14, SEC 263, MISS.  CODE ANN. SEC 459 (1956); MISSOURI, MO. REV.
STAT. SEC 451.020 (SUPP. 1966); NORTH CAROLINA, N.C. CONST., ART. XIV,
SEC 8, N.C. GEN. STAT. SEC 14-181 (1953); OKLAHOMA, OKLA. STAT., TIT.
43, SEC 12 (SUPP. 1965); SOUTH CAROLINA, S.C. CONST., ART. 3, SEC 33,
S.C.  CODE ANN. SEC 20-7 (1962); TENNESSEE, TENN. CONST., ART. 11, SEC
14, TENN. CODE ANN. SEC 36-402 (1955); TEXAS, TEX. PEN.  CODE, ART. 492
(1952); WEST VIRGINIA, W. VA. CODE ANN. SEC 4697 (1961). 

OVER THE PAST 15 YEARS, 14 STATES HAVE REPEALED LAWS OUTLAWING
INTERRACIAL MARRIAGES: ARIZONA, CALIFORNIA, COLORADO, IDAHO, INDIANA,
MARYLAND, MONTANA, NEBRASKA, NEVADA, NORTH DAKOTA, OREGON, SOUTH
DAKOTA, UTAH, AND WYOMING. 

THE FIRST STATE COURT TO RECOGNIZE THAT MISCEGENATION STATUTES
VIOLATE THE EQUAL PROTECTION CLAUSE WAS THE SUPREME COURT OF
CALIFORNIA.  PEREZ V. SHARP, 32 CAL. 2D 711, 198 P.2D 17 (1948). 

FN6  FOR A HISTORICAL DISCUSSION OF VIRGINIA'S MISCEGENATION
STATUTES, SEE WADLINGTON, SUPRA, N. 4. 

FN7  VA. CODE ANN. SEC 20-54 (1960 REPL.  VOL.). 

FN8  VA. CODE ANN. SEC 20-53 (1960 REPL.  VOL.). 

FN9  VA. CODE ANN. SEC 20-50 (1960 REPL.  VOL.). 

FN10  VA. CODE ANN. SEC 20-54 (1960 REPL.  VOL.). 

FN11  APPELLANTS POINT OUT THAT THE STATE'S CONCERN IN THESE
STATUTES, AS EXPRESSED IN THE WORDS OF THE 1924 ACT'S TITLE, "AN ACT TO
PRESERVE RACIAL INTEGRITY," EXTENDS ONLY TO THE INTEGRITY OF THE WHITE
RACE.  WHILE VIRGINIA PROHIBITS WHITES FROM MARRYING ANY NONWHITE
(SUBJECT TO THE EXCEPTION FOR THE DESCENDANTS OF POCOHONTAS), NEGROES,
ORIENTALS, AND ANY OTHER RACIAL CLASS MAY INTERMARRY WITHOUT STATUTORY
INTERFERENCE.  APPELLANTS CONTEND THAT THIS DISTINCTION RENDERS
VIRGINIA'S MISCEGENATION STATUTES ARBITRARY AND UNREASONABLE EVEN
ASSUMING THE CONSTITUTIONAL VALIDITY OF AN OFFICIAL PURPOSE TO PRESERVE
"RACIAL INTEGRITY."  WE NEED NOT REACH THIS CONTENTION BECAUSE WE FIND
THE RACIAL CLASSIFICATIONS IN THESE STATUTES REPUGNANT TO THE
FOURTEENTH AMENDMENT, EVEN ASSUMING AN EVEN-HANDED STATE PURPOSE TO
PROTECT THE "INTEGRITY" OF ALL RACES. 

MR. JUSTICE STEWART, CONCURRING. 

I HAVE PREVIOUSLY EXPRESSED THE BELIEF THAT "IT IS SIMPLY NOT
POSSIBLE FOR A STATE LAW TO BE VALID UNDER OUR CONSTITUTION WHICH MAKES
THE CRIMINALITY OF AN ACT DEPEND UPON THE RACE OF THE ACTOR." 
MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 198 (CONCURRING OPINION).  BECAUSE
I ADHERE TO THAT BELIEF, I CONCUR IN THE JUDGMENT OF THE COURT. 
..END :









WASHINGTON V. TEXAS 388 U.S. 14 


NO. 649.  ARGUED MARCH 15-16, 1967.  - DECIDED JUNE 12, 1967.  - 400
S.W.2D 756, REVERSED. 


PETITIONER AND ANOTHER WERE CHARGED WITH A FATAL SHOOTING. 
PETITIONER'S ALLEGED COPARTICIPANT WAS TRIED FIRST AND CONVICTED OF
MURDER.  AT PETITIONER'S TRIAL FOR THE SAME MURDER HE SOUGHT TO SECURE
HIS COPARTICIPANT'S TESTIMONY WHICH WOULD HAVE BEEN VITAL FOR HIS
DEFENSE.  ON THE BASIS OF TWO TEXAS STATUTES WHICH AT THE TIME OF TRIAL
PREVENTED A PARTICIPANT ACCUSED OF A CRIME FROM TESTIFYING FOR HIS
COPARTICIPANT (BUT NOT FOR THE PROSECUTION), THE JUDGE SUSTAINED THE
STATE'S OBJECTION TO THE COPARTICIPANT'S TESTIMONY.  PETITIONER'S
CONVICTION ENSURED AND WAS UPHELD ON APPEAL.  HELD: 

1.  THE RIGHT UNDER THE SIXTH AMENDMENT OF A DEFENDANT IN A CRIMINAL
CASE TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR
APPLIES TO THE STATES THROUGH THE FOURTEENTH AMENDMENT.   PP. 17-19. 

2.  THE STATE ARBITRARILY DENIED PETITIONER THE RIGHT TO HAVE THE
MATERIAL TESTIMONY FOR HIM OF A WITNESS CONCERNING EVENTS WHICH THAT
WITNESS OBSERVED AND THUS DENIED HIM THE RIGHT TO HAVE COMPULSORY
PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR.  PP. 19-23. 

WASHINGTON V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO DETERMINE WHETHER THE RIGHT OF
A DEFENDANT IN A CRIMINAL CASE UNDER THE SIXTH AMENDMENT (FN1) TO HAVE
COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR IS APPLICABLE
TO THE STATES THROUGH THE FOURTEENTH AMENDMENT, (FN2) AND WHETHER THAT
RIGHT WAS VIOLATED BY A STATE PROCEDURAL STATUTE PROVIDING THAT PERSONS
CHARGED AS PRINCIPALS, ACCOMPLICES, OR ACCESSORIES IN THE SAME CRIME
CANNOT BE INTRODUCED AS WITNESSES FOR EACH OTHER. 

PETITIONER, JACKIE WASHINGTON, WAS CONVICTED IN DALLAS COUNTY, TEXAS,
OF MURDER WITH MALICE AND WAS SENTENCED BY A JURY TO 50 YEARS IN
PRISON.  THE PROSECUTION'S EVIDENCE SHOWED THAT PETITIONER, AN 18-YEAR
OLD YOUTH, HAD DATED A GIRL NAMED JEAN CARTER UNTIL HER MOTHER HAD
FORBIDDEN HER TO SEE HIM.  THE GIRL THEREAFTER BEGAN DATING ANOTHER
BOY, THE DECEASED.  EVIDENTLY MOTIVATED BY JEALOUSY, PETITIONER WITH
SEVERAL OTHER BOYS BEGAN DRIVING AROUND THE CITY OF DALLAS ON THE NIGHT
OF AUGUST 29, 1964, LOOKING FOR A GUN.  THE SEARCH EVENTUALLY LED TO
ONE CHARLES FULLER, WHO JOINED THE GROUP WITH HIS SHOTGUN.  AFTER
OBTAINING SOME SHELLS FROM ANOTHER SOURCE, THE GROUP OF BOYS PROCEEDED
TO JEAN CARTER'S HOME, WHERE JEAN, HER FAMILY AND THE DECEASED WERE
HAVING SUPPER.  SOME OF THE BOYS THREW BRICKS AT THE HOUSE AND THEN RAN
BACK TO THE CAR, LEAVING PETITIONER AND FULLER ALONE IN FRONT OF THE
HOUSE WITH THE SHOTGUN.  AT THE SOUND OF THE BRICKS THE DECEASED AND
JEAN CARTER'S MOTHER RUSHED OUT ON THE PORCH TO INVESTIGATE.  THE
SHOTGUN WAS FIRED BY EITHER PETITIONER OR FULLER, AND THE DECEASED WAS
FATALLY WOUNDED.  SHORTLY AFTERWARD PETITIONER AND FULLER CAME RUNNING
BACK TO THE CAR WHERE THE OTHER BOYS WAITED, WITH FULLER CARRYING THE
SHOTGUN. 

PETITIONER TESTIFIED IN HIS OWN BEHALF.  HE CLAIMED THAT FULLER, WHO
WAS INTOXICATED, HAD TAKEN THE GUN FROM HIM, AND THAT HE HAD
UNSUCCESSFULLY TRIED TO PERSUADE FULLER TO LEAVE BEFORE THE SHOOTING. 
FULLER HAD INSISTED THAT HE WAS GOING TO SHOOT SOMEONE, AND PETITIONER
HAD RUN BACK TO THE AUTOMOBILE.  HE SAW THE GIRL'S MOTHER COME OUT OF
THE DOOR AS HE BEGAN RUNNING, AND HE SUBSEQUENTLY HEARD THE SHOT.  AT
THE TIME, HE HAD THOUGHT THAT FULLER HAD SHOT THE WOMAN.  IN SUPPORT OF
HIS VERSION OF THE FACTS, PETITIONER OFFERED THE TESTIMONY OF FULLER. 
THE RECORD INDICATES THAT FULLER WOULD HAVE TESTIFIED THAT PETITIONER
PULLED AT HIM AND TRIED TO PERSUADE HIM TO LEAVE, AND THAT PETITIONER
RAN BEFORE FULLER FIRED THE FATAL SHOT. 

IT IS UNDISPUTED THAT FULLER'S TESTIMONY WOULD HAVE BEEN RELEVANT AND
MATERIAL, AND THAT IT WAS VITAL TO THE DEFENSE.  FULLER WAS THE ONLY
PERSON OTHER THAN PETITIONER WHO KNEW EXACTLY WHO FIRED THE SHOTGUN AND
WHETHER PETITIONER HAD AT THE LAST MINUTE ATTEMPTED TO PREVENT THE
SHOOTING.  FULLER, HOWEVER, HAD BEEN PREVIOUSLY CONVICTED OF THE SAME
MURDER AND SENTENCED TO 50 YEARS IN PRISON, (FN3) AND HE WAS CONFINED
IN THE DALLAS COUNTY JAIL.  TWO TEXAS STATUTES PROVIDED AT THE TIME OF
THE TRIAL IN THIS CASE THAT PERSONS CHARGED OR CONVICTED AS
COPARTICIPANTS IN THE SAME CRIME COULD NOT TESTIFY FOR ONE ANOTHER,
(FN4) ALTHOUGH THERE WAS NO BAR TO THEIR TESTIFYING FOR THE STATE. 
(FN5)  ON THE BASIS OF THESE STATUTES THE TRIAL JUDGE SUSTAINED THE
STATE'S OBJECTION AND REFUSED TO ALLOW FULLER TO TESTIFY.  PETITIONER'S
CONVICTION FOLLOWED, AND IT WAS UPHELD ON APPEAL BY THE TEXAS COURT OF
CRIMINAL APPEALS.  400 S.W.2D 756.  WE GRANTED CERTIORARI.  385 U.S.
812.  WE REVERSE. 

I. 

WE HAVE NOT PREVIOUSLY BEEN CALLED UPON TO DECIDE WHETHER THE RIGHT
OF AN ACCUSED TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOR, GUARANTEED IN FEDERAL TRIALS BY THE SIXTH AMENDMENT, IS SO
FUNDAMENTAL AND ESSENTIAL TO A FAIR TRIAL THAT IT IS INCORPORATED IN
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  (FN6)  AT ONE
TIME, IT WAS THOUGHT THAT THE SIXTH AMENDMENT HAD NO APPLICATION TO
STATE CRIMINAL TRIALS.  (FN7)  THAT VIEW NO LONGER PREVAILS, AND IN
RECENT YEARS WE HAVE INCREASINGLY LOOKED TO THE SPECIFIC GUARANTEES OF
THE SIXTH AMENDMENT TO DETERMINE WHETHER A STATE CRIMINAL TRIAL WAS
CONDUCTED WITH DUE PROCESS OF LAW.  WE HAVE HELD THAT DUE PROCESS
REQUIRES THAT THE ACCUSED HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENSE, (FN8) THAT HE BE CONFRONTED WITH THE WITNESSES AGAINST HIM,
(FN9) AND THAT HE HAVE THE RIGHT TO A SPEEDY (FN10) AND PUBLIC (FN11)
TRIAL. 

THE RIGHT OF AN ACCUSED TO HAVE COMPULSORY PROCESS FOR OBTAINING
WITNESSES IN HIS FAVOR STANDS ON NO LESSER FOOTING THAN THE OTHER SIXTH
AMENDMENT RIGHTS THAT WE HAVE PREVIOUSLY HELD APPLICABLE TO THE
STATES.  THIS COURT HAD OCCASION IN IN RE OLIVER, 333 U.S. 257 (1948),
TO DESCRIBE WHAT IT REGARDED AS THE MOST BASIC INGREDIENTS OF DUE
PROCESS OF LAW.  IT OBSERVED THAT: 

"A PERSON'S RIGHT TO REASONABLE NOTICE OF A CHARGE AGAINST HIM, AND
AN OPPORTUNITY TO BE HEARD IN HIS DEFENSE - A RIGHT TO HIS DAY IN COURT
- ARE BASIC IN OUR SYSTEM OF JURISPRUDENCE; AND THESE RIGHTS INCLUDE,
AS A MINIMUM, A RIGHT TO EXAMINE THE WITNESSES AGAINST HIM, TO OFFER
TESTIMONY, AND TO BE REPRESENTED BY COUNSEL."  333 U.S., AT 273
(FOOTNOTE OMITTED). 

THE RIGHT TO OFFER THE TESTIMONY OF WITNESSES, AND TO COMPEL THEIR
ATTENDANCE, IF NECESSARY, IS IN PLAIN TERMS THE RIGHT TO PRESENT A
DEFENSE, THE RIGHT TO PRESENT THE DEFENDANT'S VERSION OF THE FACTS AS
WELL AS THE PROSECUTION'S TO THE JURY SO IT MAY DECIDE WHERE THE TRUTH
LIES.  JUST AS AN ACCUSED HAS THE RIGHT TO CONFRONT THE PROSECUTION'S
WITNESSES FOR THE PURPOSE OF CHALLENGING THEIR TESTIMONY, HE HAS THE
RIGHT TO PRESENT HIS OWN WITNESSES TO ESTABLISH A DEFENSE.  THIS RIGHT
IS A FUNDAMENTAL ELEMENT OF DUE PROCESS OF LAW. 

                          II. 

SINCE THE RIGHT TO COMPULSORY PROCESS IS APPLICABLE IN THIS STATE
PROCEEDING, THE QUESTION REMAINS WHETHER IT WAS VIOLATED IN THE
CIRCUMSTANCES OF THIS CASE.  THE TESTIMONY OF CHARLES FULLER WAS DENIED
TO THE DEFENSE NOT BECAUSE THE STATE REFUSED TO COMPEL HIS ATTENDANCE,
BUT BECAUSE A STATE STATUTE MADE HIS TESTIMONY INADMISSIBLE WHETHER HE
WAS PRESENT IN THE COURTROOM OR NOT.  WE ARE THUS CALLED UPON TO DECIDE
WHETHER THE SIXTH AMENDMENT GUARANTEES A DEFENDANT THE RIGHT UNDER ANY
CIRCUMSTANCES TO PUT HIS WITNESSES ON THE STAND, AS WELL AS THE RIGHT
TO COMPEL THEIR ATTENDANCE IN COURT.  THE RESOLUTION OF THIS QUESTION
REQUIRES SOME DISCUSSION OF THE COMMON-LAW CONTEXT IN WHICH THE SIXTH
AMENDMENT WAS ADOPTED. 

JOSEPH STORY, IN HIS FAMOUS COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES, OBSERVED THAT THE RIGHT TO COMPULSORY PROCESS WAS
INCLUDED IN THE BILL OF RIGHTS IN REACTION TO THE NOTORIOUS COMMON-LAW
RULE THAT IN CASES OF TREASON OR FELONY THE ACCUSED WAS NOT ALLOWED TO
INTRODUCE WITNESSES IN HIS DEFENSE AT ALL.  (FN12)  ALTHOUGH THE
ABSOLUTE PROHIBITION OF WITNESSES FOR THE DEFENSE HAD BEEN ABOLISHED IN
ENGLAND BY STATUTE BEFORE 1787, (FN13) THE FRAMERS OF THE CONSTITUTION
FELT IT NECESSARY SPECIFICALLY TO PROVIDE THAT DEFENDANTS IN CRIMINAL
CASES SHOULD BE PROVIDED THE MEANS OF OBTAINING WITNESSES SO THAT THEIR
OWN EVIDENCE AS WELL AS THE PROSECUTION'S, MIGHT BE EVALUATED BY THE
JURY. 

DESPITE THE ABOLITION OF THE RULE GENERALLY DISQUALIFYING DEFENSE
WITNESSES, THE COMMON LAW RETAINED A NUMBER OF RESTRICTIONS ON
WITNESSES WHO WERE PHYSICALLY AND MENTALLY CAPABLE OF TESTIFYING.  TO
THE EXTENT THAT THEY WERE APPLICABLE, THEY HAD THE SAME EFFECT OF
SUPPRESSING THE TRUTH THAT THE GENERAL PROSCRIPTION HAD HAD. 
DEFENDANTS AND CODEFENDANTS WERE AMONG THE LARGE CLASS OF WITNESSES
DISQUALIFIED FROM TESTIFYING ON THE GROUND OF INTEREST.  (FN14)  A
PARTY TO A CIVIL OR CRIMINAL CASE WAS NOT ALLOWED TO TESTIFY ON HIS OWN
BEHALF FOR FEAR THAT HE MIGHT BE TEMPTED TO LIE.   ALTHOUGH ORIGINALLY
THE DISQUALIFICATION OF A CODEFENDANT APPEARS TO HAVE BEEN BASED ONLY
ON HIS STATUS AS A PARTY TO THE ACTION, AND IN SOME JURISDICTIONS CO
INDICTEES WERE ALLOWED TO TESTIFY FOR OR AGAINST EACH OTHER IF GRANTED
SEPARATE TRIALS, (FN15) OTHER JURISDICTIONS CAME TO THE VIEW THAT
ACCOMPLICES OR CO-INDICTEES WERE INCOMPETENT TO TESTIFY AT LEAST IN
FAVOR OF EACH OTHER EVEN AT SEPARATE TRIALS, AND IN SPITE OF STATUTES
MAKING A DEFENDANT COMPETENT TO TESTIFY IN HIS OWN BEHALF.   (FN16)  IT
WAS THOUGHT THAT IF TWO PERSONS CHARGED WITH THE SAME CRIME WERE
ALLOWED TO TESTIFY ON BEHALF OF EACH OTHER, "EACH WOULD TRY TO SWEAR
THE OTHER OUT OF THE CHARGE."  (FN17)  THIS RULE, AS WELL AS THE OTHER
DISQUALIFICATIONS FOR INTEREST, RESTED ON THE UNSTATED PREMISES THAT
THE RIGHT TO PRESENT WITNESSES WAS SUBORDINATE TO THE COURT'S INTEREST
IN PREVENTING PERJURY, AND THAT ERRONEOUS DECISIONS WERE BEST AVOIDED
BY PREVENTING THE JURY FROM HEARING ANY TESTIMONY THAT MIGHT BE
PERJURED, EVEN IF IT WERE THE ONLY TESTIMONY AVAILABLE ON A CRUCIAL
ISSUE.  (FN18) 

THE FEDERAL COURTS FOLLOWED THE COMMON-LAW RESTRICTIONS FOR A TIME,
DESPITE THE SIXTH AMENDMENT.  IN UNITED STATES V. REID, 12 HOW.  361
(1852), THE QUESTION WAS WHETHER ONE OF TWO DEFENDANTS JOINTLY INDICTED
FOR MURDER ON THE HIGH SEAS COULD CALL THE OTHER AS A WITNESS. 
ALTHOUGH THIS COURT EXPRESSLY RECOGNIZED THAT THE SIXTH AMENDMENT WAS
DESIGNED TO ABOLISH SOME OF THE HARSH RULES OF THE COMMON LAW,
PARTICULARLY INCLUDING THE REFUSAL TO ALLOW THE DEFENDANT IN A SERIOUS
CRIMINAL CASE TO PRESENT WITNESSES IN HIS DEFENSE, (FN19) IT HELD THAT
THE RULES OF EVIDENCE IN THE FEDERAL COURTS WERE THOSE IN FORCE IN THE
VARIOUS STATES AT THE TIME OF THE PASSAGE OF THE JUDICIARY ACT OF 1789,
INCLUDING THE DISQUALIFICATION OF DEFENDANTS INDICTED TOGETHER.  THE
HOLDING IN UNITED STATES V. REID WAS NOT SATISFACTORY TO LATER
GENERATIONS, HOWEVER, AND IN 1918 THIS COURT EXPRESSLY OVERRULED IT,
REFUSING TO BE BOUND BY "THE DEAD HAND OF THE COMMON-LAW RULE OF 1789,"
AND TAKING NOTE OF "THE CONVICTION OF OUR TIME THAT THE TRUTH IS MORE
LIKELY TO BE ARRIVED AT BY HEARING THE TESTIMONY OF ALL PERSONS OF
COMPETENT UNDERSTANDING WHO MAY SEEM TO HAVE KNOWLEDGE OF THE FACTS
INVOLVED IN A CASE, LEAVING THE CREDIT AND WEIGHT OF SUCH TESTIMONY TO
BE DETERMINED BY THE JURY OR BY THE COURT ...  ."  ROSEN V. UNITED
STATES, 245 U.S. 467, 471. 

ALTHOUGH ROSEN V. UNITED STATES RESTED ON NONCONSTITUTIONAL GROUNDS,
WE BELIEVE THAT ITS REASONING WAS REQUIRED BY THE SIXTH AMENDMENT.  IN
LIGHT OF THE COMMON-LAW HISTORY, AND IN VIEW OF THE RECOGNITION IN THE
REID CASE THAT THE SIXTH AMENDMENT WAS DESIGNED IN PART TO MAKE THE
TESTIMONY OF A DEFENDANT'S WITNESSES ADMISSIBLE ON HIS BEHALF IN COURT,
IT COULD HARDLY BE ARGUED THAT A STATE WOULD NOT VIOLATE THE CLAUSE IF
IT MADE ALL DEFENSE TESTIMONY INADMISSIBLE AS A MATTER OF PROCEDURAL
LAW.  IT IS DIFFICULT TO SEE HOW THE CONSTITUTION IS ANY LESS VIOLATED
BY ARBITRARY RULES THAT PREVENT WHOLE CATEGORIES OF DEFENSE WITNESSES
FROM TESTIFYING ON THE BASIS OF A PRIORI CATEGORIES THAT PRESUME THEM
UNWORTHY OF BELIEF. 

THE RULE DISQUALIFYING AN ALLEGED ACCOMPLICE FROM TESTIFYING ON
BEHALF OF THE DEFENDANT CANNOT EVEN BE DEFENDED ON THE GROUND THAT IT
RATIONALLY SETS APART A GROUP OF PERSONS WHO ARE PARTICULARLY LIKELY TO
COMMIT PERJURY.  THE ABSURDITY OF THE RULE IS AMPLY DEMONSTRATED BY THE
EXCEPTIONS THAT HAVE BEEN MADE TO IT.  FOR EXAMPLE, THE ACCUSED
ACCOMPLICE MAY BE CALLED BY THE PROSECUTION TO TESTIFY AGAINST THE
DEFENDANT.  (FN20)  COMMON SENSE WOULD SUGGEST THAT HE OFTEN HAS A
GREATER INTEREST IN LYING IN FAVOR OF THE PROSECUTION RATHER THAN
AGAINST IT, ESPECIALLY IF HE IS STILL AWAITING HIS OWN TRIAL OR
SENTENCING.  TO THINK THAT CRIMINALS WILL LIE TO SAVE THEIR FELLOWS BUT
NOT TO OBTAIN FAVORS FROM THE PROSECUTION FOR THEMSELVES IS INDEED TO
CLOTHE THE CRIMINAL CLASS WITH MORE NOBILITY THAN ONE MIGHT EXPECT TO
FIND IN THE PUBLIC AT LARGE.  MOREOVER, UNDER THE TEXAS STATUTES THE
ACCUSED ACCOMPLICE IS NO LONGER DISQUALIFIED IF HE IS ACQUITTED AT HIS
OWN TRIAL.  PRESUMABLY, HE WOULD THEN BE FREE TO TESTIFY ON BEHALF OF
HIS COMRADE, SECURE IN THE KNOWLEDGE THAT HE COULD INCRIMINATE HIMSELF
AS FREELY AS HE LIKED IN HIS TESTIMONY, SINCE HE COULD NOT AGAIN BE
PROSECUTED FOR THE SAME OFFENSE.  THE TEXAS LAW LEAVES HIM FREE TO
TESTIFY WHEN HE HAS A GREAT INCENTIVE TO PERJURY, AND BARS HIS
TESTIMONY IN SITUATIONS WHERE HE HAS A LESSER MOTIVE TO LIE. 

WE HOLD THAT THE PETITIONER IN THIS CASE WAS DENIED HIS RIGHT TO HAVE
COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR BECAUSE THE
STATE ARBITRARILY DENIED HIM THE RIGHT TO PUT ON THE STAND A WITNESS
WHO WAS PHYSICALLY AND MENTALLY CAPABLE OF TESTIFYING TO EVENTS THAT HE
HAD PERSONALLY OBSERVED, AND WHOSE TESTIMONY WOULD HAVE BEEN RELEVANT
AND MATERIAL TO THE DEFENSE.  (FN21)  THE FRAMERS OF THE CONSTITUTION
DID NOT INTEND TO COMMIT THE FUTILE ACT OF GIVING TO A DEFENDANT THE
RIGHT TO SECURE THE ATTENDANCE OF WITNESSES WHOSE TESTIMONY HE HAD NO
RIGHT TO USE.  THE JUDGMENT OF CONVICTION MUST BE REVERSED.  IT IS SO
ORDERED. 

FN1  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT
TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND
DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT
SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF
THE NATURE AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE
WITNESSES AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING
WITNESSES IN HIS FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENSE."    FN2  "NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE,
LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW  ...  ." 

FN3  SEE FULLER V. STATE, 397 S.W.2D 434 (TEX. CRIM. APP. 1966). 

FN4  "PERSONS CHARGED AS PRINCIPALS, ACCOMPLICES OR ACCESSORIES,
WHETHER IN THE SAME OR BY DIFFERENT INDICTMENTS, CAN NOT BE INTRODUCED
AS WITNESSES FOR ONE ANOTHER, BUT THEY MAY CLAIM A SEVERANCE, AND IF
ONE OR MORE BE ACQUITTED THEY MAY TESTIFY IN BEHALF OF THE OTHERS." 
TEX.  PEN.  CODE, ART. 82. 

"PERSONS CHARGED AS PRINCIPALS, ACCOMPLICES OR ACCESSORIES, WHETHER
IN THE SAME OR DIFFERENT INDICTMENTS, CANNOT BE INTRODUCED AS WITNESSES
FOR ONE ANOTHER, BUT THEY MAY CLAIM A SEVERANCE; AND, IF ANY ONE OR
MORE BE ACQUITTED, OR THE PROSECUTION AGAINST THEM BE DISMISSED, THEY
MAY TESTIFY IN BEHALF OF THE OTHERS."  TEX. CODE CRIM. PROC., ART. 711
(1925). 

THESE STATUTORY PROVISIONS WERE APPARENTLY REPEALED BY IMPLICATION BY
ART. 36.09 OF THE TEXAS CODE OF CRIMINAL PROCEDURE OF 1965, WHICH
BECAME EFFECTIVE AFTER PETITIONER'S TRIAL.  ARTICLE 36.09 PROVIDES THAT
"TWO OR MORE DEFENDANTS WHO ARE JOINTLY OR SEPARATELY INDICTED OR
COMPLAINED AGAINST FOR THE SAME OFFENSE OR AN OFFENSE GROWING OUT OF
THE SAME TRANSACTION MAY BE, IN THE DISCRETION OF THE COURT, TRIED
JOINTLY OR SEPARATELY AS TO ONE OR MORE DEFENDANTS; PROVIDED THAT IN
ANY EVENT EITHER DEFENDANT MAY TESTIFY FOR THE OTHER OR ON BEHALF OF
THE STATE  ... ." 

COUNSEL HAVE CITED NO STATUTES FROM OTHER JURISDICTIONS, AND WE HAVE
FOUND NONE, THAT FLATLY DISQUALIFY COPARTICIPANTS IN A CRIME FROM
TESTIFYING FOR EACH OTHER REGARDLESS OF WHETHER THEY ARE TRIED JOINTLY
OR SEPARATELY.  TO BE DISTINGUISHED ARE STATUTES PROVIDING THAT ONE OF
TWO OR MORE DEFENDANTS TRIED JOINTLY MAY, IF THE EVIDENCE AGAINST HIM
IS INSUFFICIENT, BE ENTITLED TO AN IMMEDIATE ACQUITTAL SO HE MAY
TESTIFY FOR THE OTHERS.  THESE STATUTES SEEM DESIGNED TO ALLOW SUCH
JOINT DEFENDANTS TO TESTIFY WITHOUT INCRIMINATING THEMSELVES.  SEE,
E.G., ALA. CODE, TIT. 15, SEC 309 (1958); ALASKA CODE CRIM. PROC. SEC
12.20.060 (1962); KAN.  GEN. STAT. ANN. SEC 62-1440 (1964). 

FN5  RANGEL V. STATE, 22 TEX. CT. APP. 642, 3 S.W. 788 (1887). 

FN6  "A PROVISION OF THE BILL OF RIGHTS WHICH IS 'FUNDAMENTAL AND
ESSENTIAL TO A FAIR TRIAL' IS MADE OBLIGATORY UPON THE STATES BY THE
FOURTEENTH AMENDMENT."  GIDEON V. WAINWRIGHT, 372 U.S. 335, 342
(1963). 

FN7  SEE WEST V. LOUISIANA, 194 U.S. 258, 264 (1904). 

FN8  GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963). 

FN9  POINTER V. TEXAS, 380 U.S. 400 (1965). 

FN10  KLOPFER V. NORTH CAROLINA, 386 U.S. 213 (1967). 

FN11  IN RE OLIVER, 333 U.S. 257 (1948). 

FN12  3 STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
SECS 1786-1788 (1ST ED. 1833). 

FN13  BY 1701 THE ACCUSED IN BOTH TREASON AND FELONY CASES WAS
ALLOWED TO PRODUCE WITNESSES WHO COULD TESTIFY UNDER OATH.  SEE 2
WIGMORE, EVIDENCE SEC 575, AT 685-686 (3D ED. 1940). 

FN14  SEE GENERALLY 2 WIGMORE SECS 575-576 (3D ED. 1940).  WE HAVE
DISCUSSED ELSEWHERE THE GRADUAL DEMISE OF THE COMMON-LAW RULE
PROHIBITING DEFENDANTS FROM TESTIFYING IN THEIR OWN BEHALF.  SEE
FERGUSON V. GEORGIA, 365 U.S. 570 (1961). 

FN15  SEE 2 WIGMORE, SEC 580, AT 709-710 (3D ED. 1940); HENDERSON V.
STATE, 70 ALA. 23, 24-25 (DEC. TERM 1881); ALLEN V. STATE, 10 OHIO ST.
287, 303 (DEC. TERM 1859). 

FN16  SEE FOSTER V. STATE, 45 ARK. 328 (MAY TERM 1885); STATE V.
DRAKE, 11 ORE.  396, 4 PAC.  1204 (1884).  BOTH CASES HAVE BEEN
OVERTURNED BY STATUTE.  ARK. STAT. ANN. SEC 43-2017 (1947); ORE.  REV. 
STAT. SEC 139.315 (1965). 

FN17  BENSON V. UNITED STATES, 146 U.S. 325, 335 (1892). 

FN18  "INDEED, THE THEORY OF THE COMMON LAW WAS TO ADMIT TO THE
WITNESS STAND ONLY THOSE PRESUMABLY HONEST, APPRECIATING THE SANCTITY
OF AN OATH, UNAFFECTED AS A PARTY BY THE RESULT, AND FREE FROM ANY OF
THE TEMPTATIONS OF INTEREST.  THE COURTS WERE AFRAID TO TRUST THE
INTELLIGENCE OF JURORS."  BENSON V. UNITED STATES, 146 U.S. 325, 336
(1892). 

FN19  12 HOW., AT 363-364. 

FN20  SEE N. 5, SUPRA. 

FN21  NOTHING IN THIS OPINION SHOULD BE CONSTRUED AS DISAPPROVING
TESTIMONIAL PRIVILEGES, SUCH AS THE PRIVILEGE AGAINST SELF
INCRIMINATION OR THE LAWYER-CLIENT OR HUSBAND-WIFE PRIVILEGES, WHICH
ARE BASED ON ENTIRELY DIFFERENT CONSIDERATIONS FROM THOSE UNDERLYING
THE COMMON-LAW DISQUALIFICATIONS FOR INTEREST.  NOR DO WE DEAL IN THIS
CASE WITH NONARBITRARY STATE RULES THAT DISQUALIFY AS WITNESSES PERSONS
WHO, BECAUSE OF MENTAL INFIRMITY OR INFANCY, ARE INCAPABLE OF OBSERVING
EVENTS OR TESTIFYING ABOUT THEM. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

FOR REASONS THAT I HAVE STATED IN MY CONCURRING OPINION IN GIDEON V.
WAINWRIGHT, 372 U.S. 335, 349, AND IN MY OPINION CONCURRING IN THE
RESULT IN POINTER V. TEXAS, 380 U.S. 400, 408, AND IN MY DISSENTING
OPINION IN POE V. ULLMAN, 367 U.S. 497, 539-545, I CANNOT ACCEPT THE
VIEW THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
"INCORPORATES," IN ITS TERMS, THE SPECIFIC PROVISIONS OF THE BILL OF
RIGHTS.  IN MY VIEW THE DUE PROCESS CLAUSE IS NOT REDUCIBLE TO "A
SERIES OF ISOLATED POINTS," BUT IS RATHER "A RATIONAL CONTINUUM WHICH,
BROADLY SPEAKING, INCLUDES A FREEDOM FROM ALL SUBSTANTIAL ARBITRARY
IMPOSITIONS AND PURPOSELESS RESTRAINTS  ...  ."  POE V. ULLMAN, SUPRA,
AT 543; SEE PALKO V. CONNECTICUT, 302 U.S. 319; KLOPFER V. NORTH
CAROLINA, 386 U.S. 213, 226 (OPINION CONCURRING IN THE RESULT). 

I CONCUR IN THE RESULT IN THIS CASE BECAUSE I BELIEVE THAT THE STATE
MAY NOT CONSTITUTIONALLY FORBID THE PETITIONER, A CRIMINAL DEFENDANT,
FROM INTRODUCING ON HIS OWN BEHALF THE IMPORTANT TESTIMONY OF ONE
INDICTED IN CONNECTION WITH THE SAME OFFENSE, WHO WOULD NOT, HOWEVER,
BE BARRED FROM TESTIFYING IF CALLED BY THE PROSECUTION.  TEXAS HAS PUT
FORWARD NO JUSTIFICATION FOR THIS TYPE OF DISCRIMINATION BETWEEN THE
PROSECUTION AND THE DEFENSE IN THE ABILITY TO CALL THE SAME PERSON AS A
WITNESS, AND I CAN THINK OF NONE. 

IN MY OPINION THIS IS NOT, THEN, REALLY A PROBLEM OF "COMPULSORY
PROCESS" AT ALL, ALTHOUGH THE COURT'S INCORPORATIONIST APPROACH LEADS
IT TO STRAIN THIS CONSTITUTIONAL PROVISION TO REACH THESE PECULIAR
STATUTES.  NEITHER IS IT A SITUATION IN WHICH THE STATE HAS DETERMINED,
AS A MATTER OF VALID STATE EVIDENTIARY LAW, ON THE BASIS OF GENERAL
EXPERIENCE WITH A PARTICULAR CLASS OF PERSONS, AS FOR EXAMPLE, THE
MENTALLY INCOMPETENT (FN1) OR THOSE PREVIOUSLY CONVICTED OF PERJURY,
(FN2) THAT THE PURSUIT OF TRUTH IS BEST SERVED BY AN ACROSS-THE-BOARD
DISQUALIFICATION AS WITNESSES OF PERSONS OF THAT CLASS.  COMPARE
SPENCER V. TEXAS, 385 U.S. 554.  THIS IS RATHER A CASE IN WHICH THE
STATE HAS RECOGNIZED AS RELEVANT AND COMPETENT THE TESTIMONY OF THIS
TYPE OF WITNESS, BUT HAS ARBITRARILY BARRED ITS USE BY THE DEFENDANT. 
THIS, I THINK, THE DUE PROCESS CLAUSE FORBIDS. 

ON THIS PREMISE I CONCUR IN THE REVERSAL OF THE JUDGMENT OF
CONVICTION. 

FN1  E.G., CAL. CIV. PROC. CODE SEC 1880, SUBD. 1; CAL. PEN.  CODE
SEC 1321. 

FN2  E.G., VERMONT STAT. ANN., TIT. 12, SEC 1608.  SEE GENERALLY 2
WIGMORE, EVIDENCE SEC 488 (3D ED. 1940). 
..END :








NATIONAL LABOR RELATIONS BOARD V. GREAT DANE TRAILERS 388 U.S. 26 


NO. 781.  ARGUED APRIL 19, 1967.  - DECIDED JUNE 12, 1967.  - 363 F.2D
130, REVERSED AND REMANDED. 


RESPONDENT COMPANY AND A UNION REPRESENTING ITS EMPLOYEES ENTERED INTO
A COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINED A PROVISION FOR
EMPLOYEE VACATION BENEFITS, TO BE PAID ON THE FRIDAY NEAREST JULY 1 OF
EACH YEAR.  MOST OF THE EMPLOYEES WENT ON STRIKE MAY 16, 1963, AND MANY
WERE GRADUALLY REPLACED BY RESPONDENT.  A DEMAND FOR VACATION PAY BY
THE STRIKERS ON JULY 12, 1963, WAS REJECTED BY THE COMPANY ON THE
GROUND THAT THE STRIKE HAD TERMINATED ALL CONTRACTUAL OBLIGATIONS. 
THEREAFTER THE COMPANY ANNOUNCED THAT IT WOULD GRANT VACATION PAY,
ACCORDING TO THE TERMS SPECIFIED IN THE OLD AGREEMENT, TO ALL EMPLOYEES
WHO HAD REPORTED FOR WORK ON JULY 1, 1963.  THE NATIONAL LABOR
RELATIONS BOARD (NLRB) HELD THAT RESPONDENT HAD VIOLATED SECS 8(A)(3)
AND (1) OF THE NATIONAL LABOR RELATIONS ACT BY ITS ACTIONS IN REGARD TO
VACATION BENEFITS, AND ORDERED PAYMENT OF SUCH BENEFITS TO THE
STRIKERS.  THE COURT OF APPEALS HELD THAT THE DISPUTE CONCERNED A "TERM
OR CONDITION OF EMPLOYMENT," THAT THE BOARD HAD PROPERLY EXERCISED IT
JURISDICTION, BUT THAT ALTHOUGH DISCRIMINATION BETWEEN STRIKING AND
NONSTRIKING EMPLOYEES WAS PROVED, THE BOARD'S UNFAIR LABOR PRACTICE
CONCLUSION WAS NOT WELL-FOUNDED SINCE THERE WAS NO AFFIRMATIVE SHOWING
OF AN UNLAWFUL MOTIVATION TO DISCOURAGE UNION MEMBERSHIP OR TO
INTERFERE WITH PROTECTED RIGHTS.  DESPITE THE FACT THAT RESPONDENT HAD
NOT INTRODUCED EVIDENCE OF LEGITIMATE BUSINESS PURPOSE UNDERLYING ITS
DISCRIMINATORY ACTION, THE COURT OF APPEALS SPECULATED UPON SEVERAL
MOTIVES, THE POSSIBILITY OF WHICH IT FELT WAS SUFFICIENT TO OVERCOME
THE INFERENCE OF IMPROPER MOTIVE WHICH FLOWED FROM THE CONDUCT ITSELF,
AND IT DENIED ENFORCEMENT OF THE NLRB'S ORDER.  HELD: 

1.  WHILE THERE IS LITTLE QUESTION THAT THE REFUSAL TO PAY VACATION
BENEFITS TO STRIKERS WAS DISCRIMINATION, AND THAT SUCH DISCRIMINATION
HAD A POTENTIAL FOR DISCOURAGING UNION MEMBERSHIP AND ACTIVITY, SEC
8(A)(3) NORMALLY REQUIRES PROOF THAT THE DISCRIMINATORY CONDUCT WAS
MOTIVATED BY AN ANTIUNION PURPOSE.  AMERICAN SHIP BUILDING CO. V. LABOR
BOARD, 380 U.S. 300.  PP. 32-34. 

2.  IF IT CAN REASONABLY BE CONCLUDED THAT THE EMPLOYER'S
DISCRIMINATORY CONDUCT WAS "INHERENTLY DESTRUCTIVE" OF IMPORTANT
EMPLOYEE RIGHTS, NO PROOF OF ANTIUNION MOTIVATION IS NEEDED, AND THE
BOARD CAN FIND AN UNFAIR LABOR PRACTICE DESPITE EMPLOYER EVIDENCE OF
BUSINESS JUSTIFICATIONS; BUT IF THE ADVERSE EFFECT OF THE
DISCRIMINATION ON EMPLOYEE RIGHTS IS "COMPARATIVEL SLIGHT," AN
ANTIUNION MOTIVATION MUST BE PROVED IF THE EMPLOYER HAS COME FORWARD
WITH EVIDENCE OF LEGITIMATE AND SUBSTANTIAL BUSINESS JUSTIFICATIONS FOR
THE CONDUCT.  P. 34. 

3. SINCE DISCRIMINATORY CONDUCT CARRYING A POTENTIAL FOR ADVERSE
EFFECT ON EMPLOYEE RIGHTS WAS PROVED AND NO EVIDENCE OF A PROPER
MOTIVATION WAS SHOWN, THE BOARD'S CONCLUSIONS WERE SUPPORTED BY
SUBSTANTIAL EVIDENCE, AND THE COURT OF APPEALS SHOULD NOT HAVE
SPECULATED UPON RESPONDENT'S MOTIVES BUT SHOULD INSTEAD HAVE ENFORCED
THE NLRB'S ORDER.  PP. 34-35. 

NATIONAL LABOR RELATIONS BOARD V. GREAT DANE TRAILERS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS WHETHER, IN THE ABSENCE OF PROOF OF AN ANTIUNION
MOTIVATION, AN EMPLOYER MAY BE HELD TO HAVE VIOLATED SECS 8(A)(3) AND
(1) OF THE NATIONAL LABOR RELATIONS ACT (FN1) WHEN IT REFUSED TO PAY
STRIKING EMPLOYEES VACATION BENEFITS ACCRUED UNDER A TERMINATED
COLLECTIVE BARGAINING AGREEMENT WHILE IT ANNOUNCED AN INTENTION TO PAY
SUCH BENEFITS TO STRIKER REPLACEMENTS, RETURNING STRIKERS, AND
NONSTRIKERS WHO HAD BEEN AT WORK ON A CERTAIN DATE DURING THE STRIKE. 

THE RESPONDENT COMPANY AND THE UNION (FN2) ENTERED INTO A COLLECTIVE
BARGAINING AGREEMENT WHICH WAS EFFECTIVE BY ITS TERMS UNTIL MARCH 31,
1963.  THE AGREEMENT CONTAINED A COMMITMENT BY THE COMPANY TO PAY
VACATION BENEFITS TO EMPLOYEES WHO MET CERTAIN ENUMERATD
QUALIFICATIONS.  (FN3)  IN ESSENCE, THE COMPANY AGREED TO PAY SPECIFIED
VACATION BENEFITS TO EMPLOYEES WHO, DURING THE PRECEDING YEAR, HAD
WORKED AT LEAST 1,525 HOURS.  IT WAS ALSO PROVIDED THAT, IN THE CASE OF
A "LAY-OFF, TERMINATION OR QUITTING," EMPLOYEES WHO HAD SERVED MORE
THAN 60 DAYS DURING THE YEAR WOULD BE ENTITLED TO PRO RATA SHARES OF
THEIR VACATION BENEFITS.  BENEFITS WERE TO BE PAID ON THE FRIDAY
NEAREST JULY 1 OF EACH YEAR. 

THE AGREEMENT WAS TEMPORARILY EXTENDED BEYOND ITS TERMINATION DATE,
BUT ON APRIL 30, 1963, THE UNION GAVE THE REQUIRED 15 DAYS' NOTICE OF
INTENTION TO STRIKE OVER ISSUES WHICH REMAINED UNSETTLED AT THE
BARGAINING TABLE.  ACCORDINGLY, ON MAY 16, 1963, APPROXIMATELY 350 OF
THE COMPANY'S 400 EMPLOYEES COMMENCED A STRIKE WHICH LASTED UNTIL
DECEMBER 26, 1963.  THE COMPANY CONTINUED TO OPERATE DURING THE STRIKE,
USING NONSTRIKERS, PERSONS HIRED AS REPLACEMENTS FOR STRIKERS, AND SOME
ORIGINAL STRIKERS WHO HAD LATER ABANDONED THE STRIKE AND RETURNED TO
WORK.  (FN4)  ON JULY 12, 1963, A NUMBER OF THE STRIKERS DEMANDED THEIR
ACCRUED VACATION PAY FROM THE COMPANY.  THE COMPANY REJECTED THIS
DEMAND, BASING ITS RESPONSE ON THE ASSERTION THAT ALL CONTRACTUAL
OBLIGATIONS HAD BEEN TERMINATED BY THE STRIKE AND, THEREFORE, NONE OF
THE COMPANY'S EMPLOYEES HAD A RIGHT TO VACATION PAY.  SHORTLY
THEREAFTER, HOWEVER, THE COMPANY ANNOUNCED THAT IT WOULD GRANT VACATION
PAY - IN THE AMOUNTS AND SUBJECT TO THE CONDITIONS SET OUT IN THE
EXPIRED AGREEMENT - TO ALL EMPLOYEES WHO HAD REPORTED FOR WORK ON JULY
1, 1963.  THE COMPANY DENIED THAT THESE PAYMENTS WERE FOUNDED ON THE
AGREEMENT AND STATED THAT THEY MERELY REFLECTED A NEW "POLICY" WHICH
HAD BEEN UNILATERALLY ADOPTED. 

THE REFUSAL TO PAY VACATION BENEFITS TO STRIKERS, COUPLED WITH THE
PAYMENTS TO NONSTRIKERS, FORMED THE BASES OF AN UNFAIR LABOR PRACTICE
COMPLAINT FILED WITH THE BOARD WHILE THE STRIKE WAS STILL IN PROGRESS. 
VIOLATIONS OF SECS 8(A)(3) AND (1) WERE CHARGED.  A HEARING WAS HELD
BEFORE A TRIAL EXAMINER WHO FOUND THAT THE COMPANY'S ACTION IN REGARD
TO VACATION PAY CONSTITUTED A DISCRIMINATION IN TERMS AND CONDITIONS OF
EMPLOYMENT WHICH WOULD DISCOURAGE UNION MEMBERSHIP, AS WELL AS AN
UNLAWFUL INTERFERENCE WITH PROTECTED ACTIVITY.  HE HELD THAT THE
COMPANY HAD VIOLATED SECS 8(A)(3) AND (1) AND RECOMMENDED THAT IT BE
ORDERED TO CEASE AND DESIST FROM ITS UNFAIR LABOR PRACTICE AND TO PAY
THE ACCRUED VACATION BENEFITS TO STRIKERS.  THE BOARD, AFTER REVIEWING
THE RECORD, ADOPTED THE TRIAL EXAMINER'S CONCLUSIONS AND REMEDY. 
(FN5) 

A PETITION FOR ENFORCEMENT OF THE ORDER WAS FILED IN THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT.  THAT COURT FIRST DEALT WITH THE
COMPANY'S CONTENTION THAT THE BOARD HAD LACKED JURISDICTION AND THAT
THE UNION SHOULD HAVE BEEN RELEGATED EITHER TO THE BARGAINING TABLE OR
TO A LAWSUIT UNDER SEC 301 OF THE ACT, (FN6) SINCE THE BASIC QUESTION
WAS ONE OF CONTRACT INTERPRETATION AND APPLICATION.  IT NOTED THAT THE
COMPANY'S ANNOUNCED POLICY RELATING TO VACATION PAY CLEARLY CONCERNED A
"TERM OR CONDITION OF EMPLOYMENT"; SINCE IT WAS ALLEGED THAT THE
COMPANY HAD DISCRIMINATED BETWEEN STRIKING AND NONSTRIKING EMPLOYEES IN
REGARD TO THAT TERM OR CONDITION OF EMPLOYMENT, THE COMPLAINT STATED
"AN UNFAIR LABOR PRACTICE CHARGE IN SIMPLEST TERMS" AND THE BOARD HAD
PROPERLY EXERCISED ITS JURISDICTION.  (FN7)  REVIEWING THE SUBSTANTIVE
ASPECTS OF THE BOARD'S DECISION NEXT, THE COURT OF APPEALS HELD THAT,
ALTHOUGH DISCRIMINATION BETWEEN STRIKING AND NONSTRIKING EMPLOYEES HAD
BEEN PROVED, THE BOARD'S CONCLUSION THAT THE COMPANY HAD COMMITTED AN
UNFAIR LABOR PRACTICE WAS NOT WELL-FOUNDED INASMUCH AS THERE HAD BEEN
NO AFFIRMATIVE SHOWING OF AN UNLAWFUL MOTIVATION TO DISCOURAGE UNION
MEMBERSHIP OR TO INTERFERE WITH THE EXERCISE OF PROTECTED RIGHTS. 
DESPITE THE FACT THAT THE COMPANY ITSELF HAD NOT INTRODUCED EVIDENCE OF
A LEGITIMATE BUSINESS PURPOSE UNDERLYING ITS DISCRIMINATORY ACTION, THE
COURT OF APPEALS SPECULATED THAT IT MIGHT HAVE BEEN MOTIVATED BY A
DESIRE "(1) TO REDUCE EXPENSES; (2) TO ENCOURAGE LONGER TENURE AMONG
PRESENT EMPLOYEES; OR (3) TO DISCOURAGE EARLY LEAVES IMMEDIATELY BEFORE
VACATION PERIODS."  BELIEVING THAT THE POSSIBILITY OF THE EXISTENCE OF
SUCH MOTIVES WAS SUFFICIENT TO OVERCOME THE INFERENCE OF AN IMPROPER
MOTIVE WHICH FLOWED FROM THE CONDUCT ITSELF, THE COURT DENIED
ENFORCEMENT OF THE ORDER.  363 F.2D 130 (1966).  WE GRANTED CERTIORARI
TO DETERMINE WHETHER THE TREATMENT OF THE MOTIVATION ISSUE BY THE COURT
OF APPEALS WAS CONSISTENT WITH RECENT DECISIONS OF THIS COURT.  385
U.S. 1000 (1967). 

THE UNFAIR LABOR PRACTICE CHARGED HERE IS GROUNDED PRIMARILY IN SEC
8(A)(3) WHICH REQUIRES SPECIFICALLY THAT THE BOARD FIND A
DISCRIMINATION AND A RESULTING DISCOURAGEMENT OF UNION MEMBERSHIP. 
AMERICAN SHIP BUILDING CO. V. LABOR BOARD, 380 U.S. 300, 311 (1965). 
THERE IS LITTLE QUESTION BUT THAT THE RESULT OF THE COMPANY'S REFUSAL
TO PAY VACATION BENEFITS TO STRIKERS WAS DISCRIMINATION IN ITS SIMPLEST
FORM.  COMPARE REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793
(1945), WITH TEAMSTERS UNION V. LABOR BOARD, 365 U.S. 667 (1961).  SOME
EMPLOYEES WHO MET THE CONDITIONS SPECIFIED IN THE EXPIRED COLLECTIVE
BARGAINING AGREEMENT WERE PAID ACCRUED VACATION BENEFITS IN THE AMOUNTS
SET FORTH IN THAT AGREEMENT, WHILE OTHER EMPLOYEES (FN8) WHO ALSO MET
THE CONDITIONS BUT WHO HAD ENGAGED IN PROTECTED CONCERTED ACTIVITY WERE
DENIED SUCH BENEFITS.  SIMILARLY, THERE CAN BE NO DOUBT BUT THAT THE
DISCRIMINATION WAS CAPABLE OF DISCOURAGING MEMBERSHIP IN A LABOR
ORGANIZATION WITHIN THE MEANING OF THE STATUTE.  DISCOURAGING
MEMBERSHIP IN A LABOR ORGANIZATION "INCLUDES DISCOURAGING PARTICIPATION
IN CONCERTED ACTIVITIES  ...  SUCH AS A LEGITIMATE STRIKE."  LABOR
BOARD V. ERIE RESISTOR CORP., 373 U.S. 221, 233 (1963).  THE ACT OF
PAYING ACCRUED BENEFITS TO ONE GROUP OF EMPLOYEES WHILE ANNOUNCING THE
EXTINCTION OF THE SAME BENEFITS FOR ANOTHER GROUP OF EMPLOYEES WHO ARE
DISTINGUISHABLE ONLY BY THEIR PARTICIPATION IN PROTECTED CONCERTED
ACTIVITY SURELY MAY HAVE A DISCOURAGING EFFECT ON EITHER PRESENT OR
FUTURE CONCERTED ACTIVITY. 

BUT INQUIRY UNDER SEC 8(A)(3) DOES NOT USUALLY STOP AT THIS POINT. 
THE STATUTORY LANGUAGE "DISCRIMINATION  ...  TO  ...  DISCOURAGE" MEANS
THAT THE FINDING OF A VIOLATION NORMALLY TURNS ON WHETHER THE
DISCRIMINATORY CONDUCT WAS MOTIVATED BY AN ANTIUNION PURPOSE.  AMERICAN
SHIP BUILDING CO. V. LABOR BOARD, 380 U.S. 300 (1965).  IT WAS UPON THE
MOTIVATION ELEMENT THAT THE COURT OF APPEALS BASED ITS DECISION NOT TO
GRANT ENFORCEMENT, AND IT IS TO THAT ELEMENT WHICH WE NOW TURN.  IN
THREE RECENT OPINIONS WE CONSIDERED EMPLOYER MOTIVATION IN THE CONTEXT
OF ASSERTED SEC 8(A)(3) VIOLATIONS.  AMERICAN SHIP BUILDING CO. V.
LABOR BOARD, SUPRA; LABOR BOARD V. BROWN, 380 U.S. 278 (1965); AND
LABOR BOARD V. ERIE RESISTOR CORP., SUPRA.  WE NOTED IN ERIE RESISTOR,
SUPRA, AT 227, THAT PROOF OF AN ANTIUNION MOTIVATION MAY MAKE UNLAWFUL
CERTAIN EMPLOYER CONDUCT WHICH WOULD IN OTHER CIRCUMSTANCES BE LAWFUL. 
SOME CONDUCT, HOWEVER, IS SO "INHERENTLY DESTRUCTIVE OF EMPLOYEE
INTERESTS" THAT IT MAY BE DEEMED PROSCRIBED WITHOUT NEED FOR PROOF OF
AN UNDERLYING IMPROPER MOTIVE.   LABOR BOARD V. BROWN, SUPRA, AT 287;
AMERICAN SHIP BUILDING CO. V. LABOR BOARD, SUPRA, AT 311.  THAT IS,
SOME CONDUCT CARRIES WITH IT "UNAVOIDABLE CONSEQUENCES WHICH THE
EMPLOYER NOT ONLY FORSAW BUT WHICH HE MUST HAVE INTENDED" AND THUS
BEARS "ITS OWN INDICIA OF INTENT."  LABOR BOARD V. ERIE RESISTOR CORP.,
SUPRA, AT 228, 231.  IF THE CONDUCT IN QUESTION FALLS WITHIN THIS
"INHERENTLY DESTRUCTIVE" CATEGORY, THE EMPLOYER HAS THE BURDEN OF
EXPLAINING AWAY, JUSTIFYING OR CHARACTERIZING "HIS ACTIONS AS SOMETHING
DIFFERENT THAN THEY APPEAR ON THEIR FACE," AND IF HE FAILS, "AN UNFAIR
LABOR PRACTICE CHARGE IS MADE OUT."  ID., AT 228.  AND EVEN IF THE
EMPLOYER DOES COME FORWARD WITH COUNTER EXPLANATIONS FOR HIS CONDUCT IN
THIS SITUATION, THE BOARD MAY NEVERTHELESS DRAW AN INFERENCE IF
IMPROPER MOTIVE FROM THE CONDUCT ITSELF AND EXERCISE ITS DUTY TO STRIKE
THE PROPER BALANCE BETWEEN THE ASSERTED BUSINESS JUSTIFICATIONS AND THE
INVASION OF EMPLOYEE RIGHTS IN LIGHT OF THE ACT AND ITS POLICY.  ID.,
AT 229.  ON THE OTHER HAND, WHEN "THE RESULTING HARM TO EMPLOYEE RIGHTS
IS ...  COMPARATIVELY SLIGHT, AND A SUBSTANTIAL AND LEGITIMATE BUSINESS
END IS SERVED, THE EMPLOYERS' CONDUCT IS PRIMA FACIE LAWFUL," AND AN
AFFIRMATIVE SHOWING OF IMPROPER MOTIVATION MUST BE MADE.  LABOR BOARD
V. BROWN, SUPRA, AT 289; AMERICAN SHIP BUILDING CO. V. LABOR BOARD,
SUPRA, AT 311-313. 

FROM THIS REVIEW OF OUR RECENT DECISIONS, SEVERAL PRINCIPLES OF
CONTROLLING IMPORTANCE HERE CAN BE DISTILLED.  FIRST, IF IT CAN
REASONABLY BE CONCLUDED THAT THE EMPLOYER'S DISCRIMINATORY CONDUCT WAS
"INHERENTLY DESTRUCTIVE" OF IMPORTANT EMPLOYEE RIGHTS, NO PROOF OF AN
ANTIUNION MOTIVATION IS NEEDED AND THE BOARD CAN FIND AN UNFAIR LABOR
PRACTICE EVEN IF THE EMPLOYER INTRODUCES EVIDENCE THAT THE CONDUCT WAS
MOTIVATED BY BUSINESS CONSIDERATIONS.  SECOND, IF THE ADVERSE EFFECT OF
THE DISCRIMINATORY CONDUCT ON EMPLOYEE RIGHTS IS "COMPARATIVELY
SLIGHT," AN ANTIUNION MOTIVATION MUST BE PROVED TO SUSTAIN THE CHARGE
IF THE EMPLOYER HAS COME FORWARD WITH EVIDENCE OF LEGITIMATE AND
SUBSTANTIAL BUSINESS JUSTIFICATIONS FOR THE CONDUCT.  THUS, IN EITHER
SITUATION, ONCE IT HAS BEEN PROVED THAT THE EMPLOYER ENGAGED IN
DISCRIMINATORY CONDUCT WHICH COULD HAVE ADVERSELY AFFECTED EMPLOYEE
RIGHTS TO SOME EXTENT, THE BURDEN IS UPON THE EMPLOYER TO ESTABLISH
THAT HE WAS MOTIVATED BY LEGITIMATE OBJECTIVES SINCE PROOF OF
MOTIVATION IS MOST ACCESSIBLE TO HIM. 

APPLYING THE PRINCIPLES TO THIS CASE THEN, IT IS NOT NECESSARY FOR US
TO DECIDE THE DEGREE TO WHICH THE CHALLENGED CONDUCT MIGHT HAVE
AFFECTED EMPLOYEE RIGHTS.  AS THE COURT OF APPEALS CORRECTLY NOTED, THE
COMPANY CAME FORWARD WITH NO EVIDENCE OF LEGITIMATE MOTIVES FOR ITS
DISCRIMINATORY CONDUCT.  363 F.2D, AT 134.  THE COMPANY SIMPLY DID NOT
MEET THE BURDEN OF PROOF, AND THE COURT OF APPEALS MISCONSTRUED THE
FUNCTION OF JUDICIAL REVIEW WHEN IT PROCEEDED NONETHELESS TO SPECULATE
UPON WHAT MIGHT HAVE MOTIVATED THE COMPANY.  SINCE DISCRIMINATORY
CONDUCT CARRYING A POTENTIAL FOR ADVERSE EFFECT UPON EMPLOYEE RIGHTS
WAS PROVED AND NO EVIDENCE OF A PROPER MOTIVATION APPEARED IN THE
RECORD, THE BOARD'S CONCLUSIONS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE,
UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474 (1951), AND SHOULD
HAVE BEEN SUSTAINED. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED WITH DIRECTIONS TO ENFORCE THE BOARD'S ORDER.  IT IS SO
ORDERED. 

FN1  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SECS 8(A)(3) AND (1),
61 STAT. 140-141, 29 U.S.C. SECS 158(A)(3) AND (1). 

FN2  LOCAL 26, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO. 

FN3  ARTICLE VIII OF THE COLLECTIVE BARGAINING AGREEMENT WAS ENTITLED
"VACATIONS."  IT READ, IN PERTINENT PART: 

"(A)  EACH QUALIFIED EMPLOYEE COVERED BY THIS AGREEMENT SHALL BE
ENTITLED AFTER ONE (1) YEAR OF CONTINUOUS EMPLOYMENT, AT A TIME
AGREEABLE TO THE COMPANY, TO A VACATION OF SEVEN (7) CONSECUTIVE DAYS
WITH PAY FOR FORTY (40) HOURS AT THE RATE OF PAY EXISTING FOR SUCH
EMPLOYEE AT THE TIME OF THE BEGINNING OF HIS VACATION.  EACH EMPLOYEE,
AFTER FIVE (5) YEARS' CONTINUOUS SERVICE, SHALL BE ENTITLED TO A
VACATION OF FOURTEEN (14) CONSECUTIVE DAYS, WITH PAY FOR EIGHTY (80)
HOURS.  ANY EMPLOYEE ENTITLED TO A VACATION WITH PAY MAY WAIVE THE
RIGHT, IF HIS SERVICES ARE NEEDED BY THE EMPLOYER, TO SUCH VACATION
DURING THE PERIOD OF THIS AGREEMENT, AND IN SUCH CASES SHALL BE
ENTITLED TO RECEIVE IN LIEU THEREOF, AT THE TIME HE BECOMES ENTITLED TO
THE VACATION, THE AMOUNT OF VACATION PAY SUCH EMPLOYEE WOULD OTHERWISE
HAVE RECEIVED OVER AND ABOVE THE WAGES RECEIVED FOR WORK PERFORMED
DURING THE VACATION PERIOD. 

"(B)  TO QUALIFY FOR THE SAID VACATION, IT IS NECESSARY THAT AN
EMPLOYEE SHALL HAVE WORKED A TOTAL OF FIFTEEN HUNDRED TWENTY-FIVE
(1525) HOURS IN THE SAID YEAR; ANY TIME LOST, HOWEVER, BECAUSE OF AN
INDUSTRIAL ACCIDENT WHILE EMPLOYED BY THIS COMPANY TO COUNT, AS PART OF
THE QUALIFYING TIME.            *         *         *         *
* 

"(D)  EMPLOYEES WHO HAVE SERVED LESS THAN SIXTY (60) DAYS ON THE NEXT
JULY 1 AFTER DATE OF EMPLOYMENT WILL RECEIVE NO VACATION PAY ON THAT
DATE BUT ON THE FOLLOWING JULY 1 WILL RECEIVE THE VACATION DUE IN
ACCORDANCE WITH THE ABOVE QUALIFYING REQUIREMENTS, PLUS EXTRA AMOUNT
DUE IN ACCORDANCE WITH HOURS WORKED. 

"(E)  IN CASE OF LAY-OFF, TERMINATION OR QUITTING, AN EMPLOYEE WHO
HAS SERVED MORE THAN SIXTY (60) DAYS SHALL RECEIVE PRO RATA SHARE OF
VACATION. 

"(F)  ALL VACATION PAY SHALL BE PAID ON FRIDAY NEAREST JULY 1ST,
EXCEPT AS OUTLINED IN PARAGRAPH (D)." 

FN4  ALL STRIKERS HAD BEEN REPLACED BY OCTOBER 8, 1963.  AFTER THEIR
REPLACEMENT, SOME STRIKERS WERE REHIRED BY THE COMPANY, APPARENTLY AS
NEW EMPLOYEES. 

FN5  THE COMPLAINT ALSO CHARGED INDEPENDENT VIOLATIONS OF SEC
8(A)(1).  THESE WERE REJECTED BY THE TRIAL EXAMINER AND BY THE BOARD. 

FN6  SEC 301, LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 156, 29
U.S.C. SEC 185. 

FN7  IN THIS COURT THE COMPANY APPARENTLY ABANDONED THE ARGUMENT
UNDER SEC 301.  IN ANY EVENT, WE AGREE WITH THE COURT OF APPEALS THAT
THE COMPLAINT, ALLEGING AS IT DID A DISCRIMINATION IN REGARD TO A TERM
OR CONDITION OF EMPLOYMENT, STATED AN UNFAIR LABOR PRACTICE CHARGE. 
THE FACT THAT THE CONDUCT COMPLAINED OF MIGHT ALSO HAVE SUPPORTED AN
ACTION UNDER SEC 301 DID NOT DEPRIVE THE BOARD OF JURISDICTION.  NLRB
V. C & C PLYWOOD CORP., 385 U.S. 421 (1967); MASTRO PLASTICS CORP. V.
LABOR BOARD, 350 U.S. 270 (1956).  CF. SMITH V. EVENING NEWS ASSN., 371
U.S. 195 (1962).  THIS, OF COURSE, IS NOT TO SAY THAT EVERY BREACH OF A
COLLECTIVE BARGAINING AGREEMENT MAY BE THE SUBJECT OF AN UNFAIR LABOR
PRACTICE PROCEEDING.  BUT WHEN THE ELEMENTS OF AN UNFAIR LABOR PRACTICE
ARE PRESENT IN A BREACH OF CONTRACT, THE INJURED PARTY IS NOT
AUTOMATICALLY DEPRIVED BY SEC 301 OF HIS RIGHT TO PROCEED BEFORE THE
BOARD WHERE HIS REMEDY MAY BE SPEEDIER AND LESS EXPENSIVE THAN A
LAWSUIT.  NLRB V. C & C PLYWOOD CORP., SUPRA, AT 429-430. 

FN8  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC 2(3), 61 STAT.
137, 29 U.S.C. SEC 152(3), DECLARES: 

"THE TERM 'EMPLOYEE'  ...  SHALL INCLUDE ANY INDIVIDUAL WHOSE WORK
HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY CURRENT
LABOR DISPUTE  ...  AND WHO HAS NOT OBTAINED ANY OTHER REGULAR AND
SUBSTANTIALLY EQUIVALENT EMPLOYMENT  ...  ." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

BECAUSE I THINK THAT THE COURT PUTS FORTH A PREMISE WHICH
MISINTERPRETS THE RECENT DECISION IN NLRB V. C & C PLYWOOD CORP., 385
U.S. 421, AND HAS PROPOSED A DETERMINING RULE BASED ON A DISTILLATION
OF PRIOR OPINIONS WHICH IS, IN MY VIEW, SUBSTANTIALLY INACCURATE, I AM
CONSTRAINED TO EXPRESS MY DISSENT FROM ITS OPINION.  I BELIEVE THAT THE
FIFTH CIRCUIT CORRECTLY ANALYZED THE PROBLEM, AND THAT ITS DECISION
SHOULD BE AFFIRMED. 

THE COURT BEGINS BY STATING THAT VACATION BENEFITS HAD "ACCRUED"
UNDER THE CONTRACT, AND IMPLIES THAT STRIKING EMPLOYEES HAD A
CONTRACTUAL RIGHT TO SUCH BENEFITS WHICH WAS ARBITRARILY DISREGARDED BY
GREAT DANE IN ORDER TO PUNISH THOSE EMPLOYEES FOR ENGAGING IN PROTECTED
ACTIVITY.  WERE THESE THE PROPERLY ESTABLISHED FACTS OF THE CASE, I
WOULD HAVE LITTLE DIFFICULTY IN CONCURRING IN THE RESULT REACHED BY THE
MAJORITY.  EMPLOYER ACTION WHICH UNDERCUTS RIGHTS PROTECTED BY SEC 7 OF
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 61 STAT. 140, AND HAS NO
INFERABLE, LEGITIMATE BUSINESS PURPOSE HAS BEEN HELD A VIOLATION OF
SECS 8(A)(3) AND (1).  REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S.
793.  BUT THE CONTRACT DISPUTE IS NOT SO FRIVOLOUS AS TO BE DETERMINED
WITHOUT EXAMINATION, (FN1) AND THE ISSUE FRAMED BY THE COURT IS NOT
PROPERLY BEFORE US.  MOREOVER, CONTRARY TO THE COURT'S ASSERTION,
NEITHER THE BOARD NOR THE LOWER COURT LIMITED ITSELF TO CONSIDERING
THIS ISSUE, AND BOTH RECOGNIZED A LIMITATION ON THE BOARD'S CONTRACT
INTERPRETATION POWERS IN LIGHT OF SEC 301(A) OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947.  (FN2) 

THE BOARD DISCLAIMED "INTERPRETING THE CONTRACT FOR THE PARTIES" AND
HELD ONLY THAT "STRIKERS MUST BE TREATED UNIFORMLY WITH NONSTRIKERS
WITH RESPECT TO WHATEVER BENEFITS ACCRUE TO THE LATTER FROM THE
EXISTENCE OF THE EMPLOYMENT RELATIONSHIP."  IT EXPLAINED THAT ITS ORDER
WOULD MERELY FORCE THE EMPLOYER TO USE THE SAME VACATION PAY CRITERIA
FOR ALL EMPLOYEES AND ONLY PREVENT GREAT DANE FROM USING THE
REQUIREMENT THAT A RECIPIENT BE AT WORK AS OF JULY 1, 1963.  THE COURT
OF APPEALS CONSIDERED THE "TERM OR CONDITION OF EMPLOYMENT" AT ISSUE TO
BE THE EMPLOYER'S UNILATERALLY DECLARED VACATION "POLICY."  IT
EXPLICITLY DISREGARDED "THE QUESTION OF WHETHER THE BOARD WOULD HAVE
ACTED IMPROPERLY  ...  TO DECIDE WHETHER IT WAS AN UNFAIR LABOR
PRACTICE WITHOUT BENEFITS DUE UNDER THE CONTRACT  ...  ."  363 F.2D
130, 133. 

I THINK THE BOARD AND THE COURT OF APPEALS WERE CORRECT IN
DISREGARDING THE CONTRACT ISSUE.  IN NLRB V. C & C PLYWOOD CORP.,
SUPRA, WHICH THE COURT SAYS UPHOLDS JURISDICTION TO CONSIDER THE
CONTRACT, WE FACED A SITUATION IN WHICH AN EMPLOYER HAD TAKEN A
UNILATERAL ACTION WITH RESPECT TO WAGES WHICH WAS A PRIMA FACIE
VIOLATION OF SEC 8(A)(3) AND WAS ATTEMPTING TO JUSTIFY THAT ACTION BY
CONTRACTUAL PRIVILEGE.  THE COURT HELD THAT THE INTERPOSITION OF A
CONTRACTUAL DEFENSE COULD NOT DEPRIVE THE BOARD OF JURISDICTION TO
"ENFORCE A STATUTORY RIGHT" WHERE THE BOARD HAD "NOT CONSTRUED A LABOR
AGREEMENT TO DETERMINE THE EXTENT OF THE CONTRACTUAL RIGHTS WHICH WERE
GIVEN THE UNION BY THE EMPLOYER."  ID., AT 428.  ALSO THE AGREEMENT
INVOLVED IN THAT CASE DID NOT CONTAIN AN ARBITRATION CLAUSE AND THUS
THE STRONG POLICY FAVORING ARBITRATION WAS NOT INFRINGED BY THE BOARD'S
ACTION.  ID., AT 426.  HERE THE COURT'S STATMENT OF THE ISSUE WOULD
IMPLY THAT THE BOARD MAY CONSIDER AN UNFAIR LABOR PRACTICE FOUNDED
SOLELY ON BREACH OF A CONTRACTUAL DUTY, AND THE LABOR AGREEMENT SEEMS
TO INVOKE THE REMEDY OF ARBITRATION.  (FN3)  IN THESE CIRCUMSTANCES, I
THINK THE ONLY ISSUE PROPERLY BEFORE THE COURT IS WHETHER THE
EMPLOYER'S UNILATERALLY DECLARED VACATION POLICY, CONSIDERED ON ITS OWN
BOTTOM, CONSTITUTES A VIOLATION OF SEC 8(A)(3) ABSENT A SHOWING OF
IMPROPER MOTIVATION BY EVIDENCE INDEPENDENT OF THE POLICY ITSELF. 

THE COURT ATTEMPTS TO RESOLVE THIS ISSUE AS WELL AS THE CONTRACTUAL
ONE.  IN THE COURT'S VIEW AN EMPLOYER MUST "COME FORWARD WITH EVIDENCE
OF LEGITIMATE AND SUBSTANTIAL BUSINESS JUSTIFICATIONS" WHENEVER ANY OF
HIS ACTIONS ARE CHALLENGED IN A SEC 8(A)(3) PROCEEDING.  PRIOR TO
TODAY'S DECISION, SEC 8(A)(3) VIOLATIONS COULD BE GROUPED INTO TWO
GENERAL CATEGORIES: THOSE BASED ON ACTIONS SERVING NO LEGITIMATE
BUSINESS PURPOSES OR ACTIONS INHERENTLY SEVERELY DESTRUCTIVE OF
EMPLOYEE RIGHTS WHERE IMPROPER MOTIVE COULD BE INFERRED FROM THE
ACTIONS THEMSELVES, AND, IN THE LATTER INSTANCE, EVEN A LEGITIMATE
BUSINESS PURPOSE COULD BE HELD BY THE BOARD NOT TO JUSTIFY THE
EMPLOYER'S CONDUCT, LABOR BOARD V. ERIE RESISTOR CORP., 373 U.S. 221;
AND THOSE NOT BASED ON ACTIONS "DEMONSTRABLY SO DESTRUCTIVE OF EMPLOYEE
RIGHTS AND SO DEVOID OF SIGNIFICANT SERVICE TO ANY LEGITIMATE BUSINESS
END," WHERE INDEPENDENT EVIDENCE EVINCING THE EMPLOYER'S ANTIUNION
ANIMUS WOULD BE REQUIRED TO FIND A VIOLATION.  LABOR BOARD V. BROWN,
380 U.S. 278, 286.  THE COURT IS UNABLE TO CONCLUDE THAT THE EMPLOYER'S
CONDUCT IN THIS CASE FALLS INTO THE FIRST CATEGORY, AND HAS PROPOSED
ITS RULE AS AN ADDED GLOSS ON THE SECOND WHOSE CONTOURS WERE FIXED ONLY
TWO YEARS AGO IN BROWN. 

UNDER TODAY'S FORMULATION, THE BOARD IS REQUIRED TO FIND INDEPENDENT
EVIDENCE OF THE EMPLOYER'S ANTIUNION MOTIVE ONLY WHEN THE EMPLOYER HAS
OVERCOME THE PRESUMPTION OF UNLAWFUL MOTIVE WHICH THE COURT RAISES. 
THIS ALTERATION OF THE BURDEN IN PARA 8 (A)(3) CASES MAY EITHER BE A
RULE OF CONVENIENCE IMPORTANT TO THE RESOLUTION OF THIS CASE ALONE OR
MAY, MORE UNFORTUNATELY, PORTEND AN IMPORTANT SHIFT IN THE MANNER OF
DECIDING EMPLOYER UNFAIR LABOR PRACTICE CASES UNDER SEC 8(A)(3).  IN
EITHER EVENT, I BELIEVE IT IS UNWISE. 

THE "LEGITIMATE AND SUBSTANTIAL BUSINESS JUSTIFICATIONS" TEST MAY BE
INTERPRETATED AS REQUIRING ONLY THAT THE EMPLOYER COME FORWARD WITH A
NONFRIVOLOUS BUSINESS PURPOSE IN ORDER TO MAKE OPERATIVE THE USUAL
REQUIREMENT OF PROOF OF ANTIUNION MOTIVE.  IF THIS IS THE RESULT OF
TODAY'S DECISION, THEN THE COURT HAS MERELY PENALIZED GREAT DANE FOR
NOT ANTICIPATING THIS REQUIREMENT WHEN ARGUING BEFORE THE BOARD.  SUCH
A PENALTY SEEMS PARTICULARLY UNFAIR IN VIEW OF THE CLARITY OF OUR
RECENT PRONOUNCEMENTS THAT "THE BOARD MUST FIND FROM EVIDENCE
INDEPENDENT OF THE MERE CONDUCT INVOLVED THAT THE CONDUCT WAS WAS
PRIMARILY MOTIVATED BY AN ANTIUNION ANIMUS," LABOR BOARD V. BROWN, 380
U.S., AT 288, AND THAT "THE BOARD MUST FIND THAT THE EMPLOYER ACTED FOR
A PROSCRIBED PURPOSE."  AMERICAN SHIP BUILDING CO. V. LABOR BOARD, 380
U.S. 300, 313. 

ON THE OTHER HAND, THE USE OF THE WORD "SUBSTANTIAL" IN THE BURDEN OF
PROOF FORMULATION MAY GIVE THE BOARD A POWER WHICH IT FORMERLY HAD ONLY
IN SEC 8(A)(3) CASES LIKE ERIE RESISTOR, SUPRA.  THE BOARD MAY SEIZE
UPON THAT TERM TO EVALUATE THE MERITS OF THE EMPLOYER'S BUSINESS
PURPOSES AND WEIGH THEM AGAINST THE HARM THAT BEFALLS THE UNION'S
INTERESTS AS A RESULT OF THE EMPLOYER'S ACTION.  IF THIS IS THE COURT'S
MEANING, IT MAY WELL IMPINGE UPON THE ACCEPTED PRINCIPLE THAT "THE
RIGHT TO BARGAIN COLLECTIVELY DOES NOT ENTAIL ANY 'RIGHT' TO INSIST ON
ONE'S POSITION FREE FROM ECONOMIC DISADVANTAGE."  AMERICAN SHIP
BUILDING CO. V. LABOR BOARD, SUPRA, AT 309.  EMPLOYERS HAVE ALWAYS BEEN
FREE TO TAKE REASONABLE MEASURES WHICH DISCOURAGE A STRIKE BY
PRESSURING THE ECONOMIC INTERESTS OF EMPLOYEES, INCLUDING THE EXTREME
MEASURE OF HIRING PERMANENT REPLACEMENTS, WITHOUT HAVING THE BOARD
INQUIRE INTO THE "SUBSTANTIALITY OF THEIR BUSINESS JUSTIFICATIONS. 
LABOR BOARD V. MACKAY RADIO & TELEGRAPH CO., 304 U.S. 333.  IF THE
COURT MEANS TO CHANGE THIS RULE, THOUGH I ASSUME IT DOES NOT, IT SURELY
SHOULD NOT DO SO WITHOUT ARGUMENT OF THE POINT BY THE PARTIES AND
WITHOUT CAREFUL DISCUSSION. 

IN MY OPINION, THE COURT OF APPEALS CORRECTLY HELD THAT THIS CASE
FELL INTO THE CATEGORY IN WHICH INDEPENDENT EVIDENCE OF ANTIUNION
MOTIVE IS REQUIRED TO SUSTAIN A VIOLATION.  AS WAS POINTED OUT IN THE
COURT OF APPEALS OPINION, A NUMBER OF LEGITIMATE MOTIVES FOR THE TERMS
OF THE VACATION POLICY COULD BE INFERRED, 363 F.2D, AT 134, AND AN
UNLAWFUL MOTIVE IS NOT THE SOLE INFERENCE TO BE DRAWN FROM THE
CONDUCT.  NOR IS THE EMPLOYER'S CONDUCT HERE, LIKE THE SUPER-SENIORITY
PLAN IN ERIE RESISTOR, SUPRA, SUCH THAT AN UNLAWFUL MOTIVE CAN BE FOUND
BY "AN APPLICATION OF THE COMMON-LAW RULE THAT A MAN IS HELD TO INTEND
THE FORESEEABLE CONSEQUENCES OF HIS CONDUCT."  RADIO OFFICERS V. LABOR
BOARD, 347 U.S. 17, 45.  THE DIFFERENCES BETWEEN THE FACTS OF THIS CASE
AND THOSE OF ERIE RESISTOR, SUPRA, ARE, AS THE PARTIES RECOGNIZE, SO
SIGNIFICANT AS TO PRECLUDE ANALOGY.  UNLIKE THE GRANTING OF SUPER
SENIORITY, THE VACATION PAY POLICY HERE HAD NO POTENTIAL LONG-TERM
IMPACT ON THE BARGAINING SITUATION.  THE VACATION POLICY WAS NOT
EMPLOYED AS A WEAPON AGAINST THE STRIKE AS WAS THE SUPER-SENIORITY
PLAN.  NOTICE OF THE DATE OF REQUIRED PRESENCE FOR VACATION PAY
ELIGIBILITY WAS NOT GIVEN UNTIL AFTER THE DATE HAD PASSED.  THE RECORD
SHOWS CLEARLY THAT GREAT DANE HAD NO NEED TO EMPLOY ANY SUCH POLICY TO
COMBAT THE STRIKE, SINCE IT HAD SUCCESSFULLY REPLACED ALMOST ALL OF THE
STRIKING EMPLOYEES.  (FN4)  THE TRIAL EXAMINER REJECTED ALL UNION
CLAIMS THAT PARTICULAR ACTIONS BY GREAT DANE DEMONSTRATED ANTIUNION
ANIMUS.  IN THESE CIRCUMSTANCES, THE COURT OF APPEALS CORRECTLY FOUND
NO SUBSTANTIAL EVIDENCE OF A VIOLATION OF SEC 8(A)(3). 

PLAINLY THE COURT IS CONCERNED LEST THE STRIKERS IN THIS CASE BE
DENIED THEIR "RIGHTS" UNDER THE COLLECTIVE BARGAINING AGREEMENT THAT
EXPIRED AT THE COMMENCEMENT OF THE STRIKE.  EQUALLY PLAINLY, A SUIT
UNDER SEC 301 IS THE PROPER MANNER BY WHICH TO SECURE THESE "RIGHTS,"
IF THEY INDEED EXIST.  I THINK IT INAPPROPRIATE TO BECLOUD SOUND PRIOR
INTERPRETATIONS OF SEC 8(A)(3) SIMPLY TO REACH WHAT SEEMS A SYMPATHETIC
RESULT. 

FN1  THE UNION ELECTED TO TERMINATE THE CONTRACT RAISING THE QUESTION
WHETHER ANY RIGHT TO VACATION PAY SURVIVED THE TERMINATION.  ALSO THE
CONTRACT PROVIDED FOR VACATION PAY WHEN THE EMPLOYEE WAS NOT ACTUALLY
GRANTED A VACATION, AND THE INITIAL CHOICE LAY WITH THE EMPLOYER.  THUS
UNDER THE CONTRACT THE EMPLOYER WAS NOT OBLIGATED TO GRANT TWO WEEKS'
ADDITIONAL PAY, BUT COULD CHOOSE TO GRANT VACATION INSTEAD AND LOWER
THE TOTAL CASH OUTLAY.  TERMINATION PRECLUDED EXERCISE OF THAT CHOICE. 

FN2  61 STAT. 156, 29 U.S.C. SEC 185(A).  THIS POSITION IS SUPPORTED
BY THE LEGISLATIVE HISTORY DISCUSSED IN NLRB V. C & C PLYWOOD CORP.,
385 U.S. 421, AT 427. 

FN3  ARTICLE XIV OF THE CONTRACT PROVIDED THAT ARBITRATION WOULD NOT
BE REQUIRED AFTER ONE PARTY HAD GIVEN NOTICE OF INTENT TO TERMINATE OR
MODIFY THE CONTRACT.  THIS DISCLAIMER CLEARLY IMPLIES THAT ARBITRATION
WOULD BE REQUIRED IN THE RESOLUTION OF DISPUTES ARISING UNDER THE
CONTRACT. 

FN4  BY JULY 1, 1963, ALMOST 75% OF THE STRIKING EMPLOYEES HAD BEEN
REPLACED.  BY AUGUST 1, 1963, WHEN THE DISPUTE OVER VACATION PAY WAS
COMING TO A HEAD ALMOST 90% HAD BEEN REPLACED.  ALL STRIKERS HAD BEEN
REPLACED BY OCTOBER 8, 1963. 
..END :











BERGER V. NEW YORK 388 U.S. 41 


NO. 615.  ARGUED APRIL 13, 1967.  - DECIDED JUNE 12, 1967.  - 18 N.Y.2D
638, 219 N.E.2D 295, REVERSED. 


PETITIONER WAS INDICTED AND CONVICTED OF CONSPIRACY TO BRIBE THE
CHAIRMAN OF THE NEW YORK STATE LIQUOR AUTHORITY BASED UPON EVIDENCE
OBTAINED BY EAVESDROPPING.  AN ORDER PURSUANT TO SEC 813-A OF THE N.Y.
CODE OF CRIM. PROC. PERMITTING THE INSTALLATION OF A RECORDING DEVICE
IN AN ATTORNEY'S OFFICE FOR A PERIOD OF 60 DAYS WAS ISSUED BY A JUSTICE
OF THE STATE SUPREME COURT, AFTER HE WAS ADVISED OF RECORDED INTERVIEWS
BETWEEN A COMPLAINANT AND FIRST AN AUTHORITY EMPLOYEE AND LATER THE
ATTORNEY IN QUESTION.  SECTION 813-A AUTHORIZES THE ISSUANCE OF AN "EX
PARTE ORDER FOR EAVESDROPPING" UPON "OATH OR AFFIRMATION OF A DISTRICT
ATTORNEY, OR OF THE ATTORNEY GENERAL OR OF AN OFFICER ABOVE THE RANK OF
SERGEANT OF ANY POLICE DEPARTMENT."  THE OATH MUST STATE "THAT THERE IS
REASONABLE GROUND TO BELIEVE THAT EVIDENCE OF A CRIME MAY BE THUS
OBTAINED, AND PARTICULARLY DESCRIBING THE PERSON OR PERSONS WHOSE
COMMUNICATIONS  ...  ARE TO BE OVERHEARD OR RECORDED AND THE PURPOSE
THEREOF."  THE ORDER MUST SPECIFY THE DURATION OF THE EAVESDROP, WHICH
MAY NOT EXCEED TWO MONTHS, UNLESS EXTENDED.  ON THE BASIS OF LEADS
OBTAINED FROM THIS EAVESDROP, A SECOND ORDER, ALSO FOR A 60-DAY PERIOD,
PERMITTING AN INSTALLATION ELSEWHERE WAS ISSUED.  AFTER TWO WEEKS OF
EAVESDROPPING A CONSPIRACY, IN WHICH PETITIONER WAS A "GO-BETWEEN," WAS
UNCOVERED.  THE NEW YORK COURTS SUSTAINED THE STATUTE AGAINST
CONSTITUTIONAL CHALLENGE.  HELD: THE LANGUAGE OF SEC 813-A IS TOO BROAD
IN ITS SWEEP RESULTING IN A TRESPASSORY INTRUSION INTO A
CONSTITUTIONALLY PROTECTED AREA, AND IS, THEREFORE, VIOLATIVE OF THE
FOURTH AND FOURTEENTH AMENDMENTS.  PP. 45-64. 

(A)  THE FOURTH AMENDMENT'S PROTECTIONS INCLUDE "CONVERSATION," AND
THE USE OF ELECTRONIC DEVICES TO CAPTURE IT WAS A "SEARCH" WITHIN THE
MEANING OF THAT AMENDMENT.  P. 51. 

(B)  NEW YORK'S STATUTE AUTHORIZES EAVESDROPPING WITHOUT REQUIRING
BELIEF THAT ANY PARTICULAR OFFENSE HAS BEEN OR IS BEING COMMITTED, NOR
THAT THE "PROPERTY" SOUGHT, THE CONVERSATIONS, BE PARTICULARLY
DESCRIBED.  PP. 55-58. 

(C)  THE OFFICER IS GIVEN A ROVING COMMISSION TO "SEIZE" ANY AND ALL
CONVERSATIONS, BY VIRTUE OF THE STATUTE'S FAILURE TO DESCRIBE WITH
PARTICULARITY THE CONVERSATIONS SOUGHT.  P. 59. 

(D)  AUTHORIZATION TO EAVESDROP FOR A TWO-MONTH PERIOD IS EQUIVALENT
TO A SERIES OF SEARCHES AND SEIZURES PURSUANT TO A SINGLE SHOWING OF
PROBABLE CAUSE, AND AVOIDS PROMPT EXECUTION.  P. 59. 

(E)  THE STATUTE PERMITS EXTENSIONS OF THE ORIGINAL TWO-MONTH PERIOD
ON A MERE SHOWING THAT SUCH EXTENSION IS "IN THE PUBLIC INTEREST"
WITHOUT A PRESENT SHOWING OF PROBABLE CAUSE FOR THE CONTINUATION OF THE
EAVESDROP.  P. 59. 

(F)  THE STATUTE PLACES NO TERMINATION DATE ON THE EAVESDROP ONCE THE
CONVERSATION SOUGHT IS SEIZED, BUT LEAVES IT TO THE OFFICER'S
DISCRETION.  PP. 59-60. 

(G)  WHILE THERE IS NO REQUIREMENT FOR NOTICE IN VIEW OF THE
NECESSITY FOR SECRECY, THE STATUTE DOES NOT OVERCOME THIS DEFECT BY
DEMANDING THE SHOWING OF EXIGENT CIRCUMSTANCES.  P. 60. 

(H)  THE STATUTE DOES NOT PROVIDE FOR A RETURN ON THE WARRANT, THUS
LEAVING FULL DISCRETION IN THE OFFICER AS TO THE USE OF THE SEIZED
CONVERSATIONS OF INNOCENT AS WELL AS GUILTY PARTIES.  P. 60

BERGER V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS WRIT TESTS THE VALIDITY OF NEW YORK'S PERMISSIVE EAVESDROP
STATUTE, N.Y. CODE CRIM.  PROC. SEC 813-A, (FN1) UNDER THE FOURTH,
FIFTH, NINTH, AND FOURTEENTH AMENDMENTS.  THE CLAIM IS THAT THE STATUTE
SETS UP A SYSTEM OF SURVEILLANCE WHICH INVOLVES TRESPASSORY INTRUSIONS
INTO PRIVATE, CONSTITUTIONALLY PROTECTED PREMISES, AUTHORIZES "GENERAL
SEARCHES" FOR "MERE EVIDENCE," (FN2) AND IS AN INVASION OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  THE TRIAL COURT UPHELD THE
STATUTE, THE APPELLATE DIVISION AFFIRMED WITHOUT OPINION, 25 APP. DIV.
2D 718, 269 N.Y.S.2D 368, AND THE COURT OF APPEALS DID LIKEWISE BY A
DIVIDED VOTE.  18 N.Y.2D 638, 219 N.E.2D 295.  WE GRANTED CERTIORARI,
385 U.S. 967 (1966).  WE HAVE CONCLUDED THAT THE LANGUAGE OF NEW YORK'S
STATUTE IS TOO BROAD IN ITS SWEEP RESULTING IN A TRESPASSORY INTRUSION
INTO A CONSTITUTIONALLY PROTECTED AREA AND IS, THEREFORE, VIOLATIVE OF
THE FOURTH AND FOURTEENTH AMENDMENTS.  THIS DISPOSTION OBVIATES THE
NECESSITY FOR ANY DISCUSSION OF THE OTHER POINTS RAISED. 

         I. 

BERGER, THE PETITIONER, WAS CONVICTED ON TWO COUNTS OF CONSPIRACY TO
BRIBE THE CHAIRMAN OF THE NEW YORK STATE LIQUOR AUTHORITY.  THE CASE
AROSE OUT OF THE COMPLAINT OF ONE RALPH PANSINI TO THE DISTRICT
ATTORNEY'S OFFICE THAT AGENTS OF THE STATE LIQUOR AUTHORITY HAD ENTERED
HIS BAR AND GRILL AND WITHOUT CAUSE SEIZED HIS BOOKS AND RECORDS. 
PANSINI ASSERTED THAT THE RAID WAS IN REPRISAL FOR HIS FAILURE TO PAY A
BRIBE FOR A LIQUOR LICENSE.  NUMEROUS COMPLAINTS HAD BEEN FILED WITH
THE DISTRICT ATTORNEY'S OFFICE CHARGING THE PAYMENT OF BRIBES BY
APPLICANTS FOR LIQUOR LICENSES.  ON THE DIRECTION OF THAT OFFICE,
PANSINI, WHILE EQUIPPED WITH A "MINIFON" RECORDING DEVICE, INTERVIEWED
AN EMPLOYEE OF THE AUTHORITY.  THE EMPLOYEE ADVISED PANSINI THAT THE
PRICE FOR A LICENSE WAS $10,000 AND SUGGESTED THAT HE CONTACT ATTORNEY
HARRY NEYER.  NEYER SUBSEQUENTLY TOLD PANSINI THAT HE WORKED WITH THE
AUTHORITY EMPLOYEE BEFORE AND THAT THE LATTER WAS AWARE OF THE GOING
RATE ON LIQUOR LICENSES DOWNTOWN. 

ON THE BASIS OF THIS EVIDENCE AN EAVESDROP ORDER WAS OBTAINED FROM A
JUSTICE OF THE STATE SUPREME COURT, AS PROVIDED BY SEC 813-A.  THE
ORDER PERMITTED THE INSTALLATION, FOR A PERIOD OF 60 DAYS, OF A
RECORDING DEVICE IN NEYER'S OFFICE.  ON THE BASIS OF LEADS OBTAINED
FROM THIS EAVESDROP A SECOND ORDER PERMITTING THE INSTALLATION, FOR A
LIKE PERIOD, OF A RECORDING DEVICE IN THE OFFICE OF ONE HARRY STEINMAN
WAS OBTAINED.  AFTER SOME TWO WEEKS OF EAVESDROPPING A CONSPIRACY WAS
UNCOVERED INVOLVING THE ISSUANCE OF LIQUOR LICENSES FOR THE PLAYBOY AND
TENEMENT CLUBS, BOTH OF NEW YORK CITY.   PETITIONER WAS INDICTED AS "A
GO-BETWEEN" FOR THE PRINCIPAL CONSPIRATORS, WHO THOUGH NOT NAMED IN THE
INDICTMENT WERE DISCLOSED IN A BILL OF PARTICULARS.  RELEVANT PORTIONS
OF THE RECORDINGS WERE RECEIVED IN EVIDENCE AT THE TRIAL AND WERE
PLAYED TO THE JURY, ALL OVER THE OBJECTION OF THE PETITIONER.  THE
PARTIES HAVE STIPULATED THAT THE DISTRICT ATTORNEY "HAD NO INFORMATION
UPON WHICH TO PROCEED TO PRESENT A CASE TO THE GRAND JURY, OR ON THE
BASIS OF WHICE TO PROSECUTE" THE PETITIONER EXCEPT BY THE USE OF THE
EAVESDROP EVIDENCE. 

                                             II. 

EAVESDROPPING IS AN ANCIENT PRACTICE WHICH AT COMMON LAW WAS
CONDEMNED AS A NUISANCE.  4 BLACKSTONE, COMMENTARIES 168.  AT ONE TIME
THE EAVESDROPPER LISTENED BY NAKED EAR UNDER THE EAVES OF HOUSES OR
THEIR WINDOWS, OR BEYOND THEIR WALLS SEEKING OUT PRIVATE DISCOURSE. 
THE AWKWARDNESS AND UNDIGNIFIED MANNER OF THIS METHOD AS WELL AS ITS
SUSCEPTIBILITY TO ABUSE WAS IMMEDIATELY RECOGNIZED.   ELECTRICITY,
HOWEVER, PROVIDED A BETTER VEHICLE AND WITH THE ADVENT OF THE TELEGRAPH
SURREPTITIOUS INTERCEPTION OF MESSAGES BEGAN.  AS EARLY AS 1862
CALIFORNIA FOUND IT NECESSARY TO PROHIBIT THE PRACTICE BY STATUTE. 
STATUTES OF CALIFORNIA 1862, P. 288, CCLXII.  DURING THE CIVIL WAR
GENERAL J.E.B. STUART IS REPUTED TO HAVE HAD HIS OWN EAVESDROPPER ALONG
WITH HIM IN THE FIELD WHOSE JOB IT WAS TO INTERCEPT MILITARY
COMMUNICATIONS OF THE OPPOSING FORCES.  SUBSEQUENTLY NEWSPAPERS
REPORTEDLY RAIDED ONE ANOTHER'S NEWS GATHERING LINES TO SAVE ENERGY,
TIME, AND MONEY.  RACING NEWS WAS LIKEWISE INTERCEPTED AND FLASHED TO
BETTORS BEFORE THE OFFICIAL RESULT ARRIVED. 

THE TELEPHONE BROUGHT ON A NEW AND MORE MODERN EAVESDROPPER KNOWN AS
THE "WIRETAPPER."  INTERCEPTION WAS MADE BY A CONNECTION WITH A
TELEPHONE LINE.  THIS ACTIVITY HAS BEEN WITH US FOR THREE-QUARTERS OF A
CENTURY.  LIKE ITS COUSINS, WIRETAPPING PROVED TO BE A COMMERCIAL AS
WELL AS A POLICE TECHNIQUE.  ILLINOIS OUTLAWED IT IN 1895 AND 1905
CALIFORNIA EXTENDED ITS TELEGRAPH INTERCEPTION PROHIBITION TO THE
TELEPHONE.  SOME 50 YEARS AGO A NEW YORK LEGISLATIVE COMMITTEE FOUND
THAT POLICE, IN COOPERATION WITH THE TELEPHONE COMPANY, HAD BEEN
TAPPING TELEPHONE LINES IN NEW YORK DESPITE AN ACT PASSED IN 1895
PROHIBITING IT.  DURING PROHIBITION DAYS WIRETAPS WERE THE PRINCIPAL
SOURCE OF INFORMATION RELIED UPON BY THE POLICE AS THE BASIS FOR
PROSECUTIONS.  IN 1934 CONGRESS OUTLAWED THE INTERCEPTION WITHOUT
AUTHORIZATION, AND THE DIVULGING OR PUBLISHING OF THE CONTENTS OF
WIRETAPS BY PASSING SEC 605 OF THE COMMUNICATIONS ACT OF 1934.  (FN3)
NEW YORK, IN 1938, DECLARED BY CONSTITUTIONAL AMENDMENT THAT "THE RIGHT
OF THE PEOPLE TO BE SECURE AGAINST UNREASONABLE INTERCEPTION OF
TELEPHONE AND TELEGRAPH COMMUNICATIONS SHALL NOT BE VIOLATED," BUT
PERMITTED BY EX PARTE ORDER OF THE SUPREME COURT OF THE STATE THE
INTERCEPTION OF COMMUNICATIONS ON A SHOWING OF "REASONABLE GROUND TO
BELIEVE THAT EVIDENCE OF CRIME" MIGHT BE OBTAINED.  N.Y. CONST. ART. I,
SEC 12. 

SOPHISTICATED ELECTRONIC DEVICES HAVE NOW BEEN DEVELOPED (COMMONLY
KNOWN AS "BUGS") WHICH ARE CAPABLE OF EAVESDROPPING ON ANYONE IN ALMOST
ANY GIVEN SITUATION.  THEY ARE TO BE DISTINGUISHED FROM "WIRETAPS"
WHICH ARE CONFINED TO THE INTERCEPTION OF TELEGRAPHIC AND TELEPHONIC
COMMUNICATIONS MINIATURE IN SIZE (3/8" X 3/8" X 1/8") - NO LARGER THAN
A POSTAGE STAMP - THESE GADGETS PICK UP WHISPERS WITHIN A ROOM AND
BROADCAST THEM HALF A BLOCK AWAY TO A RECEIVER.  IT IS SAID THAT
CERTAIN TYPES OF ELECTRONIC RAYS BEAMED AT WALLS OR GLASS WINDOWS ARE
CAPABLE OF CATCHING VOICE VIBRATIONS AS THEY ARE BOUNCED OFF THE
SURFACES.  SINCE 1940 EAVESDROPPING HAS BECOME A BIG BUSINESS. 
MANUFACTURING CONCERNS OFFER COMPLETE DETECTION SYSTEMS WHICH
AUTOMATICALLY RECORD VOICES UNDER ALMOST ANY CONDITIONS BY REMOTE
CONTROL.  A MICROPHONE CONCEALED IN A BOOK, A LAMP, OR OTHER
UNSUSPECTED PLACE IN A ROOM, OR MADE INTO A FOUNTAIN PEN, TIE CLASP,
LAPEL BUTTON, OR CUFF LINK INCREASES THE RANGE OF THESE POWERFUL
WIRELESS TRANSMITTERS TO A HALF MILE.  RECEIVERS PICK UP THE
TRANSMISSION WITH INTERFERENCE-FREE RECEPTION ON A SPECIAL WAVE
FREQUENCY.  AND, OF LATE, A COMBINATION MIRROR TRANSMITTER HAS BEEN
DEVELOPED WHICH PERMITS NOT ONLY SIGHT BUT VOICE TRANSMISSION UP TO 300
FEET.  LIKEWISE, PARABOLIC MICROPHONES, WHICH CAN OVERHEAR
CONVERSATIONS WITHOUT BEING PLACED WITHIN THE PREMISES MONITORED, HAVE
BEEN DEVELOPED.  SEE WESTIN, SCIENCE, PRIVACY, AND FREEDOM: ISSUES AND
PROPOSALS FOR THE 1970'S, 66 COL. L. REV. 1003, 1005-1010. 

AS SCIENCE DEVELOPED THESE DETECTION TECHNIQUES, LAWMAKERS, SENSING
THE RESULTING INVASION OF INDIVIDUAL PRIVACY, HAVE PROVIDED SOME
STATUTORY PROTECTION FOR THE PUBLIC.  SEVEN STATES, CALIFORNIA,
ILLINOIS, MARYLAND, MASSACHUSETTS, NEVADA, NEW YORK, AND OREGON,
PROHIBIT SURREPTITIOUS EAVESDROPPING BY MECHANICAL OR ELECTRONIC
DEVICE.  (FN4)  HOWEVER, ALL SAVE ILLINOIS PERMIT OFFICIAL COURT
ORDERED EAVESDROPPING.  SOME 36 STATES PROHIBIT WIRETAPPING.  (FN5)
BUT OF THESE, 27 PERMIT "AUTHORIZED" INTERCEPTION OF SOME TYPE. 
FEDERAL LAW, AS WE HAVE SEEN, PROHIBITS INTERCEPTION AND DIVULGING OR
PUBLISHING OF THE CONTENT OF WIRETAPS WITHOUT EXCEPTION.  (FN6)  IN
SUM, IT IS FAIR TO SAY THAT WIRETAPPING ON THE WHOLE IS OUTLAWED,
EXCEPT FOR PERMISSIVE USE BY LAW ENFORCEMENT OFFICIALS IN SOME STATES;
WHILE ELECTRONIC EAVESDROPPING IS - SAVE FOR SEVEN STATES - PERMITTED
BOTH OFFICIALLY AND PRIVATELY.  AND, IN SIX OF THE SEVEN STATES
ELECTRONIC EAVESDROPPING ("BUGGING") IS PERMISSIBLE ON COURT ORDER. 

                              III. 

THE LAW, THOUGH JEALOUS OF INDIVIDUAL PRIVACY, HAS NOT KEPT PACE WITH
THESE ADVANCES IN SCIENTIFIC KNOWLEDGE.  THIS IS NOT TO SAY THAT
INDIVIDUAL PRIVACY HAS BEEN RELEGATED TO A SECOND-CLASS POSITION FOR IT
HAS BEEN HELD SINCE LORD CAMDEN'S DAY THT INTRUSIONS INTO IT ARE
"SUBVERSIVE OF ALL THE COMFORTS OF SOCIETY."  ENTICK V. CARRINGTON, 19
HOW.  ST. TR. 1029, 1066 (1765).  AND THE FOUNDERS SO DECIDED A QUARTER
OF A CENTURY LATER WHEN THEY DECLARED IN THE FOURTH AMENDMENT THAT THE
PEOPLE HAD A RIGHT "TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND
EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES  ...  ."  INDEED,
THAT RIGHT, THEY WROTE, "SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL
ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND
PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR
THINGS TO BE SEIZED."  ALMOST A CENTURY THEREAFTER THIS COURT TOOK
SPECIFIC AND LENGTHY NOTICE OF ENTICK V. CARRINGTON, SUPRA, FINDING
THAT ITS HOLDING WAS UNDOUBTEDLY FAMILIAR TO AND "IN THE MINDS OF THOSE
WHO FRAMED THE FOURTH AMENDMENT  ...  ."  BOYD V. UNITED STATES, 116
U.S. 616, 626-627 (1886).  AND AFTER QUOTING FROM LORD CAMDEN'S OPINION
AT SOME LENGTH, MR. JUSTICE BRADLEY CHARACTERIZED IT THUS: 

"THE PRINCIPLES LAID DOWN IN THIS OPINION AFFECT THE VERY ESSENCE OF
CONSTITUTIONAL LIBERTY AND SECURITY.  THEY REACH FARTHER THAN THE
CONCRETE FORM OF THE CASE  ...  THEY APPLY TO ALL INVASIONS ON THE PART
OF THE GOVERNMENT AND ITS EMPLOYEES OF THE SANCTITY OF A MAN'S HOME AND
THE PRIVACIES OF LIFE."  AT 630. 

BOYD HELD UNCONSTITUTIONAL AN ACT OF THE CONGRESS AUTHORIZING A COURT
OF THE UNITED STATES TO REQUIRE A DEFENDANT IN A REVENUE CASE TO
PRODUCE IN COURT HIS PRIVATE BOOKS, INVOICES, AND PAPERS OR ELSE THE
ALLEGATIONS OF THE GOVERNMENT WERE TO BE TAKEN AS CONFESSED.  THE COURT
FOUND THAT "THE ESSENCE OF THE OFFENSE  ...  WAS THE INVASION OF THIS
SACRED RIGHT WHICH UNDERLIES AND CONSTITUTES THE ESSENCE OF LORD
CAMDEN'S JUDGMENT."  IBID.  THE ACT - THE COURT FOUND - VIOLATE THE
FOURTH AMENDMENT IN THAT IT AUTHORIZED A GENERAL SEARCH CONTRARY TO THE
AMENDMENT'S GUARANTEE. 

THE AMENDMENT, HOWEVER, CARRIED NO CRIMINAL SANCTION, AND THE FEDERAL
STATUTES NOT AFFORDING ONE, THE COURT OF 1914 FORMULATED AND PRONOUNCED
THE FEDERAL EXCLUSIONARY RULE IN WEEKS V. UNITED STATES, 232 U.S. 383. 
PROHIBITING THE USE IN FEDERAL COURTS OF ANY EVIDENCE SEIZED IN
VIOLATION OF THE AMENDMENT, THE COURT HELD: 

"THE EFFECT OF THE FOURTH AMENDMENT IS TO PUT THE COURTS OF THE
UNITED STATES  ...  UNDER LIMITATIONS AND RESTRAINTS AS TO THE EXERCISE
OF SUCH POWER  ...  AND TO FOREVER SECURE THE PEOPLE ...  AGAINST ALL
UNREASONABLE SEARCHES AND SEIZURES UNDER THE GUISE OF LAW.  THIS
PROTECTIO REACHES ALL ALIKE, WHETHER ACCUSED OF CRIME OR NOT, AND THE
DUTY OF GIVING TO IT FORCE AND EFFECT IS OBLIGATORY UPON ALL  ...  .
THE TENDENCY OF THOSE WHO EXECUTE THE CRIMINAL LAWS OF THE COUNTRY TO
OBTAIN CONVICTION BY MEANS OF UNLAWFUL SEIZURES  ...  SHOULD FIND NO
SANCTION IN THE JUDGMENTS OF THE COURTS WHICH ARE CHARGED AT ALL TIMES
WITH THE SUPPORT OF THE CONSTITUTION AND TO WHICH PEOPLE OF ALL
CONDITIONS HAVE A RIGHT TO APPEAL FOR THE MAINTENANCE OF SUCH
FUNDAMENTAL RIGHTS."  AT 391-392. 

IV. 

THE COURT WAS FACED WITH ITS FIRST WIRETAP CASE IN 1928, OLMSTEAD V.
UNITED STATES, 277 U.S. 438.   THERE THE INTERCEPTION OF OLMSTEAD'S
TELEPHONE LINE WAS ACCOMPLISHED WITHOUT ENTRY UPON HIS PREMISES AND
WAS, THEREFORE, FOUND NOT TO BE PROSCRIBED BY THE FOURTH AMENDMENT. 
THE BASIS OF THE DECISION WAS THAT THE CONSTITUTION DID NOT FORBID THE
OBTAINING OF EVIDENCE BY WIRETAPPING UNLESS IT INVOLVED ACTUAL UNLAWFUL
ENTRY INTO THE HOUSE.  STATEMENTS IN THE OPINION THAT A CONVERSATION
PASSING OVER A TELEPHONE WIRE CANNOT BE SAID TO COME WITHIN THE FOURTH
AMENDMENT'S ENUMERATION OF "PERSONS, HOUSES, PAPERS, AND EFFECTS" HAVE
BEEN NEGATED BY OUR SUBSEQUENT CASES AS HEREINAFTER NOTED.  THEY FOUND
"CONVERSATION" WAS WITHIN THE FOURTH AMENDMENT'S PROTECTIONS, AND THAT
THE USE OF ELECTRONIC DEVICES TO CAPTURE IT WAS A "SEARCH" WITHIN THE
MEANING OF THE AMENDMENT, AND SO WE HOLD.   IN ANY EVENT, CONGRESS SOON
THEREAFTER, AND SOME SAY IN ANSWER TO OLMSTEAD, SPECIFICALLY PROHIBITED
THE INTERCEPTION WITHOUT AUTHORIZATION AND THE DIVULGING OR PUBLISHING
OF THE CONTENTS OF TELEPHONIC COMMUNICATIONS.  AND THE NARDONE CASES,
302 U.S. 379 (1937) AND 308 U.S. 338 (1939), EXTENDED THE EXCLUSIONARY
RULE TO WIRETAP EVIDENCE OFFERED IN FEDERAL PROSECUTIONS. 

THE FIRST "BUGGING" CASE REACHED THE COURT IN 1942 IN GOLDMAN V.
UNITED STATES, 316 U.S. 129.  THERE THE COURT FOUND THAT THE USE OF A
DETECTAPHONE PLACED AGAINST AN OFFICE WALL IN ORDER TO HEAR PRIVATE
CONVERSATIONS IN THE OFFICE NEXT DOOR DID NOT VIOLATE THE FOURTH
AMENDMENT BECAUSE THERE WAS NO PHYSICAL TRESPASS IN CONNECTION WITH THE
RELEVANT INTERCEPTION.  AND IN ON LEE V. UNITED STATES, 343 U.S. 747
(1952), WE FOUND THAT SINCE "NO TRESPASS WAS COMMITTED" A CONVERSATION
BETWEEN LEE AND A FEDERAL AGENT, OCCURRING IN THE FORMER'S LAUNDRY AND
ELECTRONICALL RECORDED, WAS NOT CONDEMNED BY THE FOURTH AMENDMENT. 
THEREAFTER IN SILVERMAN V. UNITED STATES, 365 U.S. 505 (1961), THE
COURT FOUND "THAT THE EAVESDROPPING WAS ACCOMPLISHED BY MEANS OF AN
UNAUTHORIZED PHYSICAL PENETRATION INTO THE PREMISES OCCUPIED BY THE
PETITIONERS."  AT 509.  A SPIKE A FOOT LONG WITH A MICROPHONE ATTACHED
TO IT WAS INSERTED UNDER A BASEBOARD INTO A PARTY WALL UNTIL IT MADE
CONTACT WITH THE HEATING DUCT THAT RAN THROUGH THE ENTIRE HOUSE
OCCUPIED BY SILVERMAN, MAKING A PERFECT SOUNDING BOARD THROUGH WHICH
THE CONVERSATIONS IN QUESTION WERE OVERHEARD.  SIGNIFICANTLY, THE COURT
HELD THAT ITS DECISION DID "NOT TURN UPON THE TECHNICALITY OF A
TRESPASS UPON A PARTY WALL AS A MATTER OF LOCAL LAW.  IT IS BASED UPON
THE REALITY OF AN ACTUAL INTRUSION INTO A CONSTITUTIONALLY PROTECTED
AREA."  AT 512. 

IN WONG SUN V. UNITED STATES, 371 U.S. 471 (1963), THE COURT FOR THE
FIRST TIME SPECIFICALLY HELD THAT VERBAL EVIDENCE MAY BE THE FRUIT OF
OFFICIAL ILLEGALITY UNDER THE FOURTH AMENDMENT ALONG WITH THE MORE
COMMON TANGIBLE FRUITS OF UNWARRANTED INTRUSION.  IT USED THESE WORDS: 

"THE EXCLUSIONARY RULE HAS TRADITIONALLY BARRED FROM TRIAL PHYSICAL,
TANGIBLE MATERIALS OBTAINED EITHER DURING OR AS A DIRECT RESULT OF AN
UNLAWFUL INVASION.  IT FOLLOWS FROM OUR HOLDING IN SILVERMAN V. UNITED
STATES, 365 U.S. 505, THAT THE FOURTH AMENDMENT MAY PROTECT AGAINST THE
OVERHEARING OF VERBAL STATEMENTS AS WELL AS AGAINST THE MORE
TRADITIONAL SEIZURE OF 'PAPERS AND EFFECTS.'"  AT 485. 

AND IN LOPEZ V. UNITED STATES, 373 U.S. 427 (1963), THE COURT
CONFIRMED THAT IT HAD "IN THE PAST SUSTAINED INSTANCES OF 'ELECTRONIC
EAVESDROPPING' AGAINST CONSTITUTIONAL CHALLENGE, WHEN DEVICES HAVE BEEN
USED TO ENABLE GOVERNMENT AGENTS TO OVERHEAR CONVERSATIONS WHICH WOULD
HAVE BEEN BEYOND THE REACH OF THE HUMAN EAR  ...  .  IT HAS BEEN
INSISTED ONLY THAT THE ELECTRONIC DEVICE NOT BE PLANTED BY AN UNLAWFUL
PHYSICAL INVASION OF A CONSTITUTIONALLY PROTECTED AREA."  AT 438-439. 
IN THIS CASE A RECORDING OF A CONVERSATION BETWEEN A FEDERAL AGENT AND
THE PETITIONER IN WHICH THE LATTER OFFERED THE AGENT A BRIBE WAS
ADMITTED IN EVIDENCE.  RATHER THAN CONSTITUTING "EAVESDROPPING" THE
COURT FOUND THAT THE RECORDING "WAS USED ONLY TO OBTAIN THE MOST
RELIABLE EVIDENCE POSSIBLE OF A CONVERSATION IN WHICH THE GOVERNMENT'S
OWN AGENT WAS A PARTICIPANT AND WHICH THAT AGENT WAS FULLY ENTITLED TO
DISCLOSE."  AT 439. 

                          V. 

IT IS NOW WELL SETTLED THAT "THE FOURTH AMENDMENT'S RIGHT OF PRIVACY
HAS BEEN DECLARED ENFORCEABLE AGAINST THE STATES THROUGH THE DUE
PROCESS CLAUSE OF THE FOURTEENTH" AMENDMENT.  MAPP V. OHIO, 367 U.S.
643, 655 (1961).  "THE SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY
INTRUSION BY THE POLICE - WHICH IS AT THE CORE OF THE FOURTH AMENDMENT
IS BASIC TO A FREE SOCIETY."  WOLF V. COLORADO, 338 U.S. 25, 27
(1949).  AND ITS "FUNDAMENTAL PROTECTIONS  ...  ARE GUARANTEED  ...
AGAINST INVASION BY THE STATES."  STANFORD V. TEXAS, 379 U.S. 476, 481
(1965).  THIS RIGHT HAS MOST RECENTLY RECEIVED ENUNCIATION IN CAMARA V.
MUNICIPAL COURT, 387 U.S. 523.  "THE BASIC PURPOSE OF THIS AMENDMENT,
AS RECOGNIZED IN COUNTLESS DECISIONS OF THIS COURT, IS TO SAFEGUARD THE
PRIVACY AND SECURITY OF INDIVIDUALS AGAINST ARBITRARY INVASIONS BY
GOVERNMENTAL OFFICIALS."  AT 528.  LIKEWISE THE COURT HAS DECIDED THAT
WHILE THE "STANDARDS OF REASONABLENESS" REQUIRED UNDER THE FOURTH
AMENDMENT ARE THE SAME UNDER THE FOURTEENTH, THEY "ARE NOT SUSCEPTIBLE
OF PROCRUSTEAN APPLICATION  ...  ."  KER V. CALIFORNIA, 374 U.S. 23, 33
(1963).  WE SAID THERE THAT "THE REASONABLENESS OF A SEARCH IS  ...  TO
BE DETERMINED BY THE TRIAL COURT FROM THE FACTS AND CIRCUMSTANCES OF
THE CASE AND IN THE LIGHT OF THE 'FUNDAMENTAL CRITERIA' LAID DOWN BY
THE FOURTH AMENDMENT AND IN OPINIONS OF THIS COURT APPLYING THAT
AMENDMENT."  IBID. 

WE, THEREFORE, TURN TO NEW YORK'S STATUTE TO DETERMINE THE BASIS OF
THE SEARCH AND SEIZURE AUTHORIZED BY IT UPON THE ORDER OF A STATE
SUPREME COURT JUSTICE, A COUNTY JUDGE OR GENERAL SESSIONS JUDGE OF NEW
YORK COUNTY.  SECTION 813-A AUTHORIZES THE ISSUANCE OF AN "EX PARTE
ORDER FOR EAVESDROPPING" UPON "OATH OR AFIRMATION OF A DISTRICT
ATTORNEY, OR OF THE ATTORNEY-GENERAL OR OF AN OFFICER ABOVE THE RANK OF
SERGEANT OF ANY POLICE DEPARTMENT OF THE STATE OR OF ANY POLITICAL
SUBDIVISION THEREOF  ...  ."  THE OATH MUST STATE "THAT THERE IS
REASONABLE GROUND TO BELIEVE THAT EVIDENCE OF CRIME MAY BE THUS
OBTAINED, AND PARTICULARLY DESCRIBING THE PERSON OR PERSONS WHOSE
COMMUNICATIONS, CONVERSATIONS OR DISCUSSIONS ARE TO BE OVERHEARD OR
RECORDED AND THE PURPOSE THEREOF, AND  ...  IDENTIFYING THE PARTICULAR
TELEPHONE NUMBER OR TELEGRAPH LINE INVOLVED."  THE JUDGE "MAY EXAMINE
ON OATH THE APPLICANT AND ANY OTHER WITNESS HE MAY PRODUCE AND SHALL
SATISFY HIMSELF OF THE EXISTENCE OF REASONABLE GROUNDS FOR THE GRANTING
OF SUCH APPLICATION."  THE ORDER MUST SPECIFY THE DURATION OF THE
EAVESDROP - NOT EXCEEDING TWO MONTHS UNLESS EXTENDED - AND "ANY SUCH
ORDER TOGETHER WITH THE PAPERS UPON WHICH THE APPLICATION WAS BASED,
SHALL BE DELIVERED TO AND RETAINED BY THE APPLICANT AS AUTHORITY FOR
THE EAVESDROPPING AUTHORIZED THEREIN." 

WHILE NEW YORK'S STATUTE SATISFIES THE FOURTH AMENDMENT'S REQUIREMENT
THAT A NEUTRAL AND DETACHED AUTHORITY BE INTERPOSED BETWEEN THE POLICE
AND THE PUBLIC, JOHNSON V. UNITED STATES, 333 U.S. 10, 14 (1948), THE
BROAD SWEEP OF THE STATUTE IS IMMEDIATELY OBSERVABLE.  IT PERMITS THE
ISSUANCE OF THE ORDER, OR WARRANT FOR EAVESDROPPING, UPON THE OATH OF
THE ATTORNEY GENERAL, THE DISTRICT ATTORNEY OR ANY POLICE OFFICER ABOVE
THE RANK OF SERGEANT STATING THAT "THERE IS REASONABLE GROUND TO
BELIEVE THAT EVIDENCE OF CRIME MAY BE THUS OBTAINED  ...  ."  SUCH A
REQUIREMENT RAISES A SERIOUS PROBABLE-CAUSE QUESTION UNDER THE FOURTH
AMENDMENT.  UNDER IT WARRANTS MAY ONLY ISSUE "BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED."  PROBABLE
CAUSE UNDER THE FOURTH AMENDMENT EXISTS WHERE THE FACTS AND
CIRCUMSTANCES WITHIN THE AFFIANT'S KNOWLEDGE, AND OF WHICH HE HAS
REASONABLY TRUSTWORTHY INFORMATION, ARE SUFFICIENT UNTO THEMSELVES TO
WARRANT A MAN OF REASONABLE CAUTION TO BELIEVE THAT AN OFFENSE HAS BEEN
OR IS BEING COMMITTED.  CARROLL V. UNITED STATES, 267 U.S. 132, 162
(1925); HUSTY V. UNITED STATES, 282 U.S. 694, 700-701 (1931); BRINEGAR
V. UNITED STATES, 338 U.S. 160, 175-176 (1949). 

IT IS SAID, HOWEVER, BY THE PETITIONER, AND THE STATE AGREES, THAT
THE "REASONABLE GROUND" REQUIREMENT OF SEC 813-A "IS UNDISPUTEDLY
EQUIVALENT TO THE PROBABLE CAUSE REQUIREMENT OF THE FOURTH AMENDMENT." 
THIS IS INDICATED BY PEOPLE V. GROSSMAN, 45 MISC. 2D 557, 257 N.Y.S.2D
266, REVERSED ON OTHER GROUNDS, 27 APP. DIV. 2D 572, 276 N.Y.S.2D 168. 
ALSO SEE PEOPLE V. BESHANY, 43 MISC. 2D 521, 252 N.Y.S.2D 110.  WHILE
WE HAVE FOUND NO CASE ON THE POINT BY NEW YORK'S HIGHEST COURT, WE NEED
NOT PURSUE THE QUESTION FURTHER BECAUSE WE HAVE CONCLUDED THAT THE
STATUTE IS DEFICIENT ON ITS FACE IN OTHER RESPECTS.  SINCE PETITIONER
CLEARLY HAS STANDING TO CHALLENGE THE STATUTE, BEING INDISPUTABLY
AFFECTED BY IT, WE NEED NOT CONSIDER EITHER THE SUFFICIENCY OF THE
AFFIDAVITS UPON WHICH THE EAVESDROP ORDERS WERE BASED, OR THE STANDING
OF PETITIONER TO ATTACK THE SEARCH AND SEIZURE MADE THEREUNDER. 

THE FOURTH AMENDMENT COMMANDS THAT A WARRANT ISSUE NOT ONLY UPON
PROBABLE CAUSE SUPPORTED BY OATH OR AFFIRMATION, BUT ALSO "PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED."  NEW YORK'S STATUTE LACKS THIS PARTICULARIZATION.  IT MERELY
SAYS THAT A WARRANT MAY ISSUE ON REASONABLE GROUND TO BELIEVE THAT
EVIDENCE OF CRIME MAY BE OBTAINED BY THE EAVESDROP.  IT LAYS DOWN NO
REQUIREMENT FOR PARTICULARITY IN THE WARRANT AS TO WHAT SPECIFIC CRIME
HAS BEEN OR IS BEING COMMITTED, NOR "THE PLACE TO BE SEARCHED," OR "THE
PERSONS OR THINGS TO BE SEIZED" AS SPECIFICALLY REQUIRED BY THE FOURTH
AMENDMENT.  THE NEED FOR PARTICULARITY AND EVIDENCE OF RELIABILITY IN
THE SHOWING REQUIRED WHEN JUDICIAL AUTHORIZATION OF A SEARCH IS SOUGHT
IS ESPECIALLY GREAT IN THE CASE OF EAVESDROPPING.  BY ITS VERY NATURE
EAVESDROPPING INVOLVES AN INTRUSION ON PRIVACY THAT IS BROAD IN SCOPE. 
AS WAS SAID IN OSBORN V. UNITED STATES, 385 U.S. 323 (1966), THE
"INDISCRIMINATE USE OF SUCH DEVICES IN LAW ENFORCEMENT RAISES GRAVE
CONSTITUTIONAL QUESTIONS UNDER THE FOURTH AND FIFTH AMENDMENTS," AND
IMPOSES "A HEAVIER RESPONSIBILITY ON THIS COURT IN ITS SUPERVISION OF
THE FAIRNESS OF PROCEDURES  ...  ."  AT 329, N. 7.  THERE, TWO JUDGES
ACTING JOINTLY AUTHORIZED THE INSTALLATION OF A DEVICE ON THE PERSON OF
A PROSPECTIVE WITNESS TO RECORD CONVERSATIONS BETWEEN HIM AND AN
ATTORNEY FOR A DEFENDANT THEN ON TRIAL IN THE UNITED STATES DISTRICT
COURT.  THE JUDICIAL AUTHORIZATION WAS BASED ON AN AFFIDAVIT OF THE
WITNESS SETTING OUT IN DETAIL PREVIOUS CONVERSATIONS BETWEEN THE
WITNESS AND THE ATTORNEY CONCERNING THE BRIBERY OF JURORS IN THE CASE. 
THE RECORDING DEVICE WAS, AS THE COURT SAID, AUTHORIZED "UNDER THE MOST
PRECISE AND DISCRIMINATE CIRCUMSTANCES, CIRCUMSTANCES WHICH FULLY MET
THE 'REQUIREMENT OF PARTICULARITY'" OF THE FOURTH AMENDMENT.  THE COURT
WAS ASKED TO EXCLUDE THE EVIDENCE OF THE RECORDING OF THE CONVERSATIONS
SEIZED PURSUANT TO THE ORDER ON CONSTITUTIONAL GROUNDS, WEEKS V. UNITED
STATES, SUPRA, OR IN THE EXERCISE OF SUPERVISORY POWER, MCNABB V.
UNITED STATES, 318 U.S. 332 (1943).  THE COURT REFUSED TO DO SO FINDING
THAT THE RECORDING, ALTHOUGH AN INVASION OF THE PRIVACY PROTECTED BY
THE FOURTH AMENDMENT, WAS ADMISSIBLE BECAUSE OF THE AUTHORIZATION OF
THE JUDGES, BASED UPON "A DETAILED, FACTUAL AFFIDAVIT ALLEGING THE
COMMISSION OF A SPECIFIC CRIMINAL OFFENSE DIRECTLY AND IMMEDIATELY
AFFECTING THE ADMINISTRATION OF JUSTICE  ...  FOR THE NARROW AND
PARTICULARIZED PURPOSE OF ASCERTAINING THE TRUTH OF THE AFFIDAVIT'S
ALLEGATIONS."  AT 330.  THE INVASION WAS LAWFUL BECAUSE THERE WAS
SUFFICIENT PROOF TO OBTAIN A SEARCH WARRANT TO MAKE THE SEARCH FOR THE
LIMITED PURPOSE OUTLINED IN THE ORDER OF THE JUDGES.  THROUGH THESE
"PRECISE AND DISCRIMINATE" PROCEDURES THE ORDER AUTHORIZING THE USE OF
THE ELECTRONIC DEVICE AFFORDED SIMILAR PROTECTIONS TO THOSE THAT ARE
PRESENT IN THE USE OF CONVENTIONAL WARRANTS AUTHORIZING THE SEIZURE OF
TANGIBLE EVIDENCE.  AMONG OTHER SAFEGUARDS, THE ORDER DESCRIBED THE
TYPE OF CONVERSATION SOUGHT WITH PARTICULARITY, THUS INDICATING THE
SPECIFIC OBJECTIVE OF THE GOVERNMENT IN ENTERING THE CONSTITUTIONALLY
PROTECTED AREA AND THE LIMITATIONS PLACED UPON THE OFFICER EXECUTING
THE WARRANT.  UNDER IT THE OFFICER COULD NOT SEARCH UNAUTHORIZED AREAS;
LIKEWISE, ONCE THE PROPERTY SOUGHT, AND FOR WHICH THE ORDER WAS ISSUED,
WAS FOUND THE OFFICER COULD NOT USE THE ORDER AS A PASSKEY TO FURTHER
SEARCH.  IN ADDITION, THE ORDER AUTHORIZED ONE LIMITED INTRUSION RATHER
THAN A SERIES OR A CONTINUOUS SURVEILLANCE.  AND, WE NOTE THAT A NEW
ORDER WAS ISSUED WHEN THE OFFICER SOUGHT TO RESUME THE SEARCH AND
PROBABLE CAUSE WAS SHOWN FOR THE SUCCEEDING ONE.  MOREOVER, THE ORDER
WAS EXECUTED BY THE OFFICER WITH DISPATCH, NOT OVER A PROLONGED AND
EXTENDED PERIOD.  IN THIS MANNER NO GREATER INVASION OF PRIVACY WAS
PERMITTED THAN WAS NECESSARY UNDER THE CIRCUMSTANCES.  FINALLY THE
OFFICER WAS REQUIRED TO AND DID MAKE A RETURN ON THE ORDER SHOWING HOW
IT WAS EXECUTED AND WHAT WAS SEIZED.  THROUGH THESE STRICT PRECAUTIONS
THE DANGER OF AN UNLAWFUL SEARCH AND SEIZURE WAS MINIMIZED. 

BY CONTRAST, NEW YORK'S STATUTE LAYS DOWN NO SUCH "PRECISE AND
DISCRIMINATE" REQUIREMENTS.  INDEED, IT AUTHORIZES THE "INDISCRIMINATE
USE" OF ELECTRONIC DEVICES AS SPECIFICALLY CONDEMNED IN OSBORN.  "THE
PROCEEDING BY SEARCH WARRANT IS A DRASTIC ONE," SGRO V. UNITED STATES,
287 U.S. 206, 210 (1932), AND MUST BE CAREFULLY CIRCUMSCRIBED SO AS TO
PREVENT UNAUTHORIZED INVASIONS OF "THE SANCTITY OF A MAN'S HOME AND THE
PRIVACIES OF LIFE."  BOYD V. UNITED STATES, 116 U.S. 616, 630.  NEW
YORK'S BROADSIDE AUTHORIZATION RATHER THAN BEING "CAREFULLY
CIRCUMSCRIBED" SO AS TO PREVENT UNAUTHROIZED INVASIONS OF PRIVACY
ACTUALLY PERMITS GENERAL SEARCHES BY ELECTRONIC DEVICES, THE TRULY
OFFENSIVE CHARACTER OF WHICH WAS FIRST CONDEMNED IN ENTICK V.
CARRINGTON, 19 HOW.  ST. TR. 1029, AND WHICH WERE THEN KNOWN AS
"GENERAL WARRANTS."  THE USE OF THE LATTER WAS A MOTIVATING FACTOR
BEHIND THE DECLARATION OF INDEPENDENCE.  IN VIEW OF THE MANY CASES
COMMENTING ON THE PRACTICE IT IS SUFFICIENT HERE TO POINT OUT THAT
UNDER THESE "GENERAL WARRANTS" CUSTOMS OFFICIALS WERE GIVEN BLANKET
AUTHORITY TO CONDUCT GENERAL SEARCHES FOR GOODS IMPORTED TO THE
COLONIES IN VIOLATION OF THE TAX LAWS OF THE CROWN.  THE FOURTH
AMENDMENT'S REQUIREMENT THAT A WARRANT "PARTICULARLY DESCRIBE THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED," REPUDIATED
THESE GENERAL WARRANTS AND "MAKES GENERAL SEARCHES  ...  IMPOSSIBLE AND
PREVENTS THE SEIZURE OF ONE THING UNDER A WARRANT DESCRIBING ANOTHER. 
AS TO WHAT IS TO BE TAKEN, NOTHING IS LEFT TO THE DISCRETION OF THE
OFFICER EXECUTING THE WARRANT."  MARRON V. UNITED STATES, 275 U.S. 192,
196 (1927); STANFORD V. TEXAS, SUPRA. 

WE BELIEVE THE STATUTE HERE IS EQUALLY OFFENSIVE.  FIRST, AS WE HAVE
MENTIONED, EAVESDROPPING IS AUTHORIZED WITHOUT REQUIRING BELIEF THAT
ANY PARTICULAR OFFENSE HAS BEEN OR IS BEING COMMITTED; NOR THAT THE
"PROPERTY" SOUGHT, THE CONVERSATIONS, BE PARTICULARLY DESCRIBED.  THE
PURPOSE OF THE PROBABLE-CAUSE REQUIREMENT OF THE FOURTH AMENDMENT, TO
KEEP THE STATE OUT OF CONSTITUTIONALLY PROTECTED AREAS UNTIL IT HAS
REASON TO BELIEVE THAT A SPECIFIC CRIME HAS BEEN OR IS BEING COMMITTED,
IS THEREBY WHOLLY ABORTED.  LIKEWISE THE STATUTE'S FAILURE TO DESCRIBE
WITH PARTICULARITY THE CONVERSATIONS SOUGHT GIVES THE OFFICER A ROVING
COMMISSION TO "SEIZE" ANY AND ALL CONVERSATIONS.  IT IS TRUE THAT THE
STATUTE REQUIRES THE NAMING OF "THE PERSON OR PERSONS WHOSE
COMMUNICATIONS, CONVERSATIONS OR DISCUSSIONS ARE TO BE OVERHEARD OR
RECORDED  ...  ."  BUT THIS DOES NO MORE THAN IDENTIFY THE PERSON WHOSE
CONSTITUTIONALLY PROTECTED AREA IS TO BE INVADED RATHER THAN
"PARTICULARLY DESCRIBING" THE COMMUNICATIONS, CONVERSATIONS, OR
DISCUSSIONS TO BE SEIZED.  AS WITH GENERAL WARRANTS THIS LEAVES TOO
MUCH TO THE DISCRETION OF THE OFFICER EXECUTING THE ORDER.  SECONDLY,
AUTHORIZATION OF EAVESDROPPING FOR A TWO-MONTH PERIOD IS THE EQUIVALENT
OF A SERIES OF INTRUSIONS, SEARCHES, AND SEIZURES PURSUANT TO A SINGLE
SHOWING OF PROBABLE CAUSE.  PROMPT EXECUTION IS ALSO AVOIDED.  DURING
SUCH A LONG AND CONTINUOUS (24 HOURS A DAY) PERIOD THE CONVERSATIONS OF
ANY AND ALL PERSONS COMING INTO THE AREA COVERED BY THE DEVICE WILL BE
SEIZED INDISCRIMINATELY AND WITHOUT REGARD TO THEIR CONNECTION WITH THE
CRIME UNDER INVESTIGATION.  MOREOVER, THE STATUTE PERMITS, AND THERE
WERE AUTHORIZED HERE, EXTENSIONS OF THE ORIGINAL TWO-MONTH PERIOD -
PRESUMABLY FOR TWO MONTHS EACH - ON A MERE SHOWING THAT SUCH EXTENSION
IS "IN THE PUBLIC INTEREST."  APPARENTLY THE ORIGINAL GROUNDS ON WHICH
THE EAVESDROP ORDER WAS INITIALLY ISSUED ALSO FORM THE BASIS OF THE
RENEWAL.  THIS WE BELIEVE INSUFFICIENT WITHOUT A SHOWING OF PRESENT
PROBABLE CAUSE FOR THE CONTINUANCE OF THE EAVESDROP.  THIRD, THE
STATUTE PLACES NO TERMINATION DATE ON THE EAVESDROP ONCE THE
CONVERSATION SOUGHT IS SEIZED.  THIS IS LEFT ENTIRELY IN THE DISCRETION
OF THE OFFICER.  FINALLY, THE STATUTE'S PROCEDURE, NECESSARILY BECAUSE
ITS SUCCESS DEPENDS ON SECRECY, HAS NO REQUIREMENT FOR NOTICE AS DO
CONVENTIONAL WARRANTS, NOR DOES IT OVERCOME THIS DEFECT BY REQUIRING
SOME SHOWING OF SPECIAL FACTS.  ON THE CONTRARY, IT PERMITS UNCONSENTED
ENTRY WITHOUT ANY SHOWING OF EXIGENT CIRCUMSTANCES.  SUCH A SHOWING OF
EXIGENCY, IN ORDER TO AVOID NOTICE, WOULD APPEAR MORE IMPORTANT IN
EAVESDROPPING, WITH ITS INHERENT DANGERS, THAN THAT REQUIRED WHEN
CONVENTIONAL PROCEDURES OF SEARCH AND SEIZURE ARE UTILIZED.  NOR DOES
THE STATUTE PROVIDE FOR A RETURN ON THE WARRANT THEREBY LEAVING FULL
DISCRETION IN THE OFFICER AS TO THE USE OF SEIZED CONVERSATIONS OF
INNOCENT AS WELL AS GUILTY PARTIES.  IN SHORT, THE STATUTE'S BLANKET
GRANT OF PERMISSION TO EAVESDROP IS WITHOUT ADEQUATE JUDICIAL
SUPERVISION OR PROTECTIVE PROCEDURES. 

  VI. 

IT IS SAID WITH FERVOR THAT ELECTRONIC EAVESDROPPING IS A MOST
IMPORTANT TECHNIQUE OF LAW ENFORCEMENT AND THAT OUTLAWING IT WILL
SEVERELY CRIPPLE CRIME DETECTION.  THE MONUMENTAL REPORT OF THE
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE
ENTITLED "THE CHALLENGE OF CRIME IN A FREE SOCIETY" INFORMS US THAT THE
MAJORITY OF LAW ENFORCEMENT OFFICIALS SAY THAT THIS IS ESPECIALLY TRUE
IN THE DETECTION OF ORGANIZED CRIME.  AS THE COMMISSION REPORTS, THERE
CAN BE NO QUESTION ABOUT THE SERIOUS PROPORTIONS OF PROFESSIONAL
CRIMINAL ACTIVITY IN THIS COUNTRY.  HOWEVER, WE HAVE FOUND NO EMPIRICAL
STATISTICS ON THE USE OF ELECTRONIC DEVICES (BUGGING) IN THE FIGHT
AGAINST ORGANIZED CRIME.  INDEED, THERE ARE EVEN FIGURES AVAILABLE IN
THE WIRETAP CATEGORY WHICH INDICATE TO THE CONTRARY.  SEE DISTRICT
ATTORNEY SILVER'S POLL OF NEW YORK PROSECUTORS, IN DASH, SCHWARTZ &
KNOWLTON, THE EAVESDROPPERS 105, 117-119 (1959).  ALSO SEE SEMERJIAN,
PROPOSALS ON WIRETAPPING IN LIGHT OF RECENT SENATE HEARINGS, 45 B.U.L.
REV. 217, 229.  AS THE COMMISSION POINTS OUT, "WIRETAPPING WAS THE
MAINSTAY OF THE NEW YORK ATTACK AGAINST ORGANIZED CRIME UNTIL FEDERAL
COURT DECISIONS INTERVENED.  RECENTLY CHIEF RELIANCE IN SOME OFFICES
HAS BEEN PLACED ON BUGGING, WHERE THE INFORMATION IS TO BE USED IN
COURT.  LAW ENFORCEMENT OFFICIALS BELIEVE THAT THE SUCCESSES ACHIEVED
IN SOME PARTS OF THE STATE ARE ATTRIBUTABLE PRIMARILY TO A COMBINATION
OF DEDICATED AND COMPETENT PERSONNEL AND ADEQUATE LEGAL TOOLS; AND THAT
THE FAILURE TO DO MORE IN NEW YORK HAS RESULTED PRIMARILY FROM THE
FAILURE TO COMMIT ADDITIONAL RESOURCES OF TIME AND MEN," RATHER THAN
ELECTRONIC DEVICES.  AT 201-202.  MOREOVER, BROOKLYN'S DISTRICT
ATTORNEY SILVER'S POLL OF THE STATE OF NEW YORK INDICATES THAT DURING
THE 12-YEAR PERIOD (1942-1954) DULY AUTHORIZED WIRETAPS IN BRIBERY AND
CORRUPTION CASES CONSTITUTED ONLY A SMALL PERCENTAGE OF THE WHOLE.  IT
INDICATES THAT THIS CATEGORY INVOLVED ONLY 10% OF THE TOTAL WIRETAPS. 
THE OVERWHELMING MAJORITY WERE IN THE CATEGORIES OF LARCENY, EXTORTION,
COERCION, AND BLACKMAIL, ACCOUNTING FOR ALMOST 50%.  ORGANIZED GAMBLING
WAS ABOUT 11%.  STATISTICS ARE NOT AVAILABLE ON SUBSEQUENT YEARS. 
DASH, SCHWARTZ & KNOWLTON, SUPRA, AT 40. 

AN OFTEN REPEATED STATEMENT OF DISTRICT ATTORNEY HOGAN OF NEW YORK
COUNTY WAS MADE AT A HEARING BEFORE THE SENATE JUDICIARY COMMITTEE AT
WHICH HE ADVOCATED THE AMENDMENT OF THE COMMUNICATIONS ACT OF 1934,
SUPRA, SO AS TO PERMIT "TELEPHONIC INTERCEPTION" OF CONVERSATIONS.  AS
HE TESTIFIED, "FEDERAL STATUTORY LAW (THE 1934 ACT) HAS BEEN
INTERPRETED IN SUCH A WAY AS TO BAR US FROM DIVULGING WIRETAP EVIDENCE,
EVEN IN THE COURTROOM IN THE COURSE OF CRIMINAL PROSECUTION."  MR.
HOGAN THEN SAID THAT "WITHOUT IT (WIRETAPS) MY OWN OFFICE COULD NOT
HAVE CONVICTED" "TOP FIGURES IN THE UNDERWORLD."   HE THEN NAMED NINE
PERSONS HIS OFFICE HAD CONVICTED AND ONE ON WHOM HE HAD FURNISHED
"LEADS" SECURED FROM WIRETAPS TO THE AUTHORITIES OF NEW JERSEY. 
EVIDENCE SECURED FROM WIRETAPS, AS MR. HOGAN SAID, WAS NOT ADMISSIBLE
IN "CRIMINAL PROSECUTIONS."  HE WAS ADVOCATING THAT THE CONGRESS ADOPT
A MEASURE THAT WOULD MAKE IT ADMISSIBLE; HEARINGS ON S. 2813 AND S.
1495, BEFORE THE SENATE COMMITTEE ON THE JUDICIARY, 87TH CONG., 2D
SESS., PP. 173, 174 (1962).  THE PRESIDENT'S COMMISSION ALSO EMPHASIZES
IN ITS REPORT THE NEED FOR WIRETAPPING IN THE INVESTIGATION OF
ORGANIZED CRIME BECAUSE OF THE TELEPHONE'S "RELATIVELY FREE USE" BY
THOSE ENGAGED IN THE BUSINESS AND THE DIFFICULTY OF INFILTRATING THEIR
ORGANIZATIONS.  P. 201.  THE CONGRESS, THOUGH LONG IMPORTUNED, HAS NOT
AMENDED THE 1934 ACT TO PERMIT IT. 

WE ARE ALSO ADVISED BY THE SOLICITOR GENERAL OF THE UNITED STATES
THAT THE FEDERAL GOVERNMENT HAS ABANDONED THE USE OF ELECTRONIC
EAVESDROPPING FOR "PROSECUTORIAL PURPOSES."  SEE SUPPLEMENTAL
MEMORANDUM, SCHIPANI V. UNITED STATES, NO. 504, OCTOBER TERM, 1966, 385
U.S. 372.  SEE ALSO BLACK V. UNITED STATES, 385 U.S. 26 (1966); O'BRIEN
V. UNITED STATES, 386 U.S. 345 (1967); HOFFA V. UNITED STATES, 387 U.S.
231 (1967); MARKIS V. UNITED STATES, 387 U.S. 425; MORETTI V. UNITED
STATES, 387 U.S. 425.  DESPITE THESE ACTIONS OF THE FEDERAL GOVERNMENT
THERE HAS BEEN NO FAILURE OF LAW ENFORCEMENT IN THAT FIELD. 

AS THE CHIEF JUSTICE SAID IN CONCURRING IN THE RESULT IN LOPEZ V.
UNITED STATES, 373 U.S. 427, "THE FANTASTIC ADVANCES IN THE FIELD OF
ELECTRONIC COMMUNICATION CONSTITUTE A GREAT DANGER TO THE PRIVACY OF
THE INDIVIDUAL; ...  INDISCRIMINATE USE OF SUCH DEVICES IN LAW
ENFORCEMENT RAISES GRAVE CONSTITUTIONAL QUESTIONS UNDER THE FOURTH AND
FIFTH AMENDMENTS  ...  ."  AT 441. 

IN ANY EVENT WE CANNOT FORGIVE THE REQUIREMENTS OF THE FOURTH
AMENDMENT IN THE NAME OF LAW ENFORCEMENT.  THIS IS NO FORMALITY THAT WE
REQUIRE TODAY BUT A FUNDAMENTAL RULE THAT HAS LONG BEEN RECOGNIZED AS
BASIC TO THE PRIVACY OF EVERY HOME IN AMERICA.  WHILE "THE REQUIREMENTS
OF THE FOURTH AMENDMENT ARE NOT INFLEXIBLE, OR OBTUSELY UNYIELDING TO
THE LEGITIMATE NEEDS OF LAW ENFORCEMENT," LOPEZ V. UNITED STATES,
SUPRA, AT 464 (DISSENTING OPINION OF BRENNAN, J.), IT IS NOT ASKING TOO
MUCH THAT OFFICERS BE REQUIRED TO COMPLY WITH THE BASIC COMMAND OF THE
FOURTH AMENDMENT BEFORE THE INNERMOST SECRETS OF ONE'S HOME OR OFFICE
ARE INVADED.  FEW THREATS TO LIBERTY EXIST WHICH ARE GREATER THAN THAT
POSED BY THE USE OF EAVESDROPPING DEVICES.  SOME MAY CLAIM THAT WITHOUT
THE USE OF SUCH DEVICES CRIME DETECTION IN CERTAIN AREAS MAY SUFFER
SOME DELAYS SINCE EAVESDROPPING IS QUICKER, EASIER, AND MORE CERTAIN. 
HOWEVER, TECHNICQUES AND PRACTICES MAY WELL BE DEVELOPED THAT WILL
OPERATE JUST AS SPEEDILY AND CERTAINLY AND - WHAT IS MORE IMPORTANT -
WITHOUT ATTENDING ILLEGALITY. 

IT IS SAID THAT NEITHER A WARRANT NOR A STATUTE AUTHORIZING
EAVESDROPPING CAN BE DRAWN SO AS TO MEET THE FOURTH AMENDMENT'S
REQUIREMENTS.  IF THAT BE TRUE THEN THE "FRUITS" OF EAVESDROPPING
DEVICES ARE BARRED UNDER THE AMENDMENT.  ON THE OTHER HAND THIS COURT
HAS IN THE PAST, UNDER SPECIFIC CONDITIONS AND CIRCUMSTANCES, SUSTAINED
THE USE OF EAVESDROPPING DEVICES.  SEE GOLDMAN V. UNITED STATES, 316
U.S. 129; ON LEE V. UNITED STATES, 343 U.S. 747; LOPEZ V. UNITED
STATES, SUPRA; AND OSBORN V. UNITED STATES, SUPRA.  IN THE LATTER CASE
THE EAVESDROPPING DEVICE WAS PERMITTED WHERE THE "COMMISSION OF A
SPECIFIC OFFENSE" WAS CHARGED, ITS USE WAS "UNDER THE MOST PRECISE AND
DISCRIMINATE CIRCUMSTANCES" AND THE EFFECTIVE ADMINISTRATION OF JUSTICE
IN A FEDERAL COURT WAS AT STAKE.  THE STATES ARE UNDER NO GREATER
RESTRICTIONS.  THE FOURTH AMENDMENT DOES NOT MAKE THE "PRECINCTS OF THE
HOME OR THE OFFICE  ...  SANCTUARIES WHERE THE LAW CAN NEVER REACH,"
DOUGLAS, J., DISSENTING IN WARDEN, MARYLAND PENITENTIARY V. HAYDEN, 387
U.S. 294, 321, BUT IT DOES PRESCRIBE A CONSTITUTIONAL STANDARD THAT
MUST BE MET BEFORE OFFICIAL INVASION IS PERMISSIBLE.  OUR CONCERN WITH
THE STATUTE HERE IS WHETHER ITS LANGUAGE PERMITS A TRESPASSORY INVASION
OF THE HOME OR OFFICE, BY GENERAL WARRANT, CONTRARY TO THE COMMAND OF
THE FOURTH AMENDMENT.  AS IT IS WRITTEN, WE BELIEVE THAT IT DOES. 
REVERSED. 

FN1  "SEC 813-A.  EX PARTE ORDER FOR EAVESDROPPING: 

"AN EX PARTE ORDER FOR EAVESDROPPING AS DEFINED IN SUBDIVISIONS ONE
AND TWO OF SECTION SEVEN HUNDRED THIRTY-EIGHT OF THE PENAL LAW MAY BE
ISSUED BY ANY JUSTICE OF THE SUPREME COURT OR JUDGE OF A COUNTY COURT
OR OF THE COURT OF GENERAL SESSIONS OF THE COUNTY OF NEW YORK UPON OATH
OR AFFIRMATION OF A DISTRICT ATTORNEY, OR OF THE ATTORNEY-GENERAL OR OF
AN OFFICER ABOVE THE RANK OF SERGEANT OF ANY POLICE DEPARTMENT OF THE
STATE OR OF ANY POLITICAL SUBDIVISION THEREOF, THAT THERE IS REASONABLE
GROUND TO BELIEVE THAT EVIDENCE OF CRIME MAY BE THUS OBTAINED, AND
PARTICULARLY DESCRIBING THE PERSON OR PERSONS WHOSE COMMUNICATIONS,
CONVERSATIONS OR DISCUSSIONS ARE TO BE OVERHEARD OR RECORDED AND THE
PURPOSE THEREOF, AND, IN THE CASE OF A TELEGRAPHIC OR TELEPHONIC
COMMUNICATION, IDENTIFYING THE PARTICULAR TELEPHONE NUMBER OR TELEGRAPH
LINE INVOLVED.  IN CONNECTION WITH THE ISSUANCE OF SUCH AN ORDER THE
JUSTICE OR JUDGE MAY EXAMINE ON OATH THE APPLICANT AND ANY OTHER
WITNESS HE MAY PRODUCE AND SHALL SATISFY HIMSELF OF THE EXISTENCE OF
REASONABLE GROUNDS FOR THE GRANTING OF SUCH APPLICATION.  ANY SUCH
ORDER SHALL BE EFFECTIVE FOR THE TIME SPECIFIED THEREIN BUT NOT FOR A
PERIOD OF MORE THAN TWO MONTHS UNLESS EXTENDED OR RENEWED BY THE
JUSTICE OR JUDGE WHO SIGNED AND ISSUED THE ORIGINAL ORDER UPON
SATISFYING HIMSELF THAT SUCH EXTENSION OR RENEWAL IS IN THE PUBLIC
INTEREST.  ANY SUCH ORDER TOGETHER WITH THE PAPERS UPON WHICH THE
APPLICATION WAS BASED, SHALL BE DELIVERED TO AND RETAINED BY THE
APPLICANT AS AUTHORITY FOR THE EAVESDROPPING AUTHORIZED THEREIN.  A
TRUE COPY OF SUCH ORDER SHALL AT ALL TIMES BE RETAINED IN HIS
POSSESSION BY THE JUDGE OR JUSTICE ISSUING THE SAME, AND, IN THE EVENT
OF THE DENIAL OF AN APPLICATION FOR SUCH AN ORDER, A TRUE COPY OF THE
PAPERS UPON WHICH THE APPLICATION WAS BASED SHALL IN LIKE MANNER BE
RETAINED BY THE JUDGE OR JUSTICE DENYING THE SAME.  AS AMENDED L. 1958,
C. 676, EFF. JULY 1, 1958." 

FN2  THIS CONTENTION IS DISPOSED OF IN WARDEN, MARYLAND PENITENTIARY
V. HAYDEN, 387 U.S. 294, ADVERSELY TO PETITIONER'S ASSERTION HERE. 

FN3  48 STAT. 1103, 47 U.S.C. SEC 605. 

FN4  CAL. PEN.  CODE SECS 653H-J; ILL. REV. STAT., C. 38, SECS 14-1
TO 14-7 (1965); MD. ANN.  CODE, ART. 27, SEC 125A (1957); MASS. GEN.
LAWS, C. 272, SEC 99 (SUPP. 1966); NEV. REV. STAT.  SEC 200.650 (1963);
N.Y. PEN.  LAW SEC 738 (SUPP. 1966); ORE.  REV.  STAT. SEC
165.540(1)(C) (SUPP. 1965). 

FN5  ALA. CODE, TIT. 48, SEC 414 (1958); ALASKA STAT. SEC 42.20.100
(1962); ARK. STAT. ANN. SEC 73-1810 (1957); CAL. PEN.  CODE SEC 640;
COLO. REV. STAT. ANN. SEC 40-4-17 (1963); CONN.  GEN. STAT. REV. SEC 53
140 (1958); DEL. CODE ANN., TIT. 11, SEC 757 (SUPP. 1966); FLA. STAT.
SEC 822.10 (1965); HAWAII REV. LAWS SEC 309 A-1 (SUPP. 1963); IDAHO
CODE ANN. SECS 18-6704, 6705 (1947); ILL. REV. STAT., C. 134, SEC 16
(1965); IOWA CODE SEC 716.8 (1962); KY. REV.  STAT. SEC 433.430 (1962);
LA. REV. STAT. SEC 14:322 (1950); MD. ANN. CODE, ART. 35, SECS 92, 93
(1957); MASS. GEN. LAWS, C. 272, SEC 99 (SUPP. 1966); MICH. STAT. ANN.
SEC 28.808 (1954); MONT. REV. CODES ANN. SEC 94-3203 (SUPP. 1965); NEB.
REV. STAT. SEC 86-328 (1966); NEV. REV.  STAT. SECS 200.620, 200.630
(1963); N.J. REV. STAT. SEC 2A:146-1 (1953); N.M. STAT. ANN.  SEC 40A
12-1 (1964); N.Y. PEN.  LAW SEC 738 (SUPP. 1966); N.C. GEN. STAT. SEC
14-155 (1953); N.D. CENT. CODE SEC 8-10-07 (1959); OHIO REV. CODE ANN.
SEC 4931.28 (1954); OKLA. STAT., TIT.  21, SEC 1757 (1961); ORE.  REV. 
STAT. SEC 165.540(1)(SUPP.  1965); PA. STAT. ANN., TIT. 15, SEC 2443
(1958); R.I. GEN. LAWS ANN. SEC 11-35-12 (1956); S.D. CODE SEC 13.4519
(1939); TENN. CODE ANN. SEC 65-2117 (1955); UTAH CODE ANN. SEC 76-48-11
(1953); VA. CODE ANN. SEC 18.1-156 (1960 REPL.  VOL.); WIS. STAT. SEC
134.39 (1963); WYO. STAT. ANN. SEC 37-259 (1957).    FN6  A RECENT
FEDERAL COMMUNICATIONS COMMISSION REGULATION, 31 FED. REG. 3400, 47 CFR
SEC 2.701, PROHIBITS THE USE OF "A DEVICE REQUIRED TO BE LICENSED BY
EAVESDROPPING.  THIS REGULATION, HOWEVER, EXEMPTS USE UNDER "LAWFUL
AUTHORITY" BY POLICE OFFICERS AND THE SANCTIONS ARE LIMITED TO LOSS OF
LICENSE AND IMPOSITION OF A FINE.  THE MEMORANDUM ACCOMPANYING THE
REGULATION STATED: "WHAT CONSTITUTES A CRIME UNDER STATE LAW REFLECTING
STATE POLICY APPLICABLE TO RADIO EAVESDROPPING IS, OF COURSE,
UNAFFECTED BY OUR RULES."  ID., AT 3399. 

MR. JUSTICE DOUGLAS, CONCURRING.    I JOIN THE OPINION OF THE COURT
BECAUSE AT LONG LAST IT OVERRULES SUB SILENTIO OLMSTEAD V. UNITED
STATES, 277 U.S. 438, AND ITS OFFSPRING AND BRINGS WIRETAPPING AND
OTHER ELECTRONIC EAVESDROPPING FULLY WITHIN THE PURVIEW OF THE FOURTH
AMENDMENT.  I ALSO JOIN THE OPINION BECAUSE IT CONDEMNS ELECTRONIC
SURVEILLANCE, FOR ITS SIMILARITY TO THE GENERAL WARRANTS OUT OF WHICH
OUR REVOLUTION SPRANG AND ALLOWS A DISCREET SURVEILLANCE ONLY ON A
SHOWING OF "PROBABLE CAUSE."  THESE SAFEGUARDS ARE MINIMAL IF WE ARE TO
LIVE UNDER A REGIME OF WIRETAPPING AND OTHER ELECTRONIC SURVEILLANCE. 

YET THERE PERSISTS MY OVERRIDING OBJECTION TO ELECTRONIC
SURVEILLANCE, VIZ., THAT IT IS A SEARCH FOR "MERE EVIDENCE" WHICH, AS I
HAVE MAINTAINED ON OTHER OCCASIONS (OSBORN V. UNITED STATES, 385 U.S.
323, 349-354), IS A VIOLATION OF THE FOURTH AND FIFTH AMENDMENTS, NO
MATTER WITH WHAT NICETY AND PRECISION A WARRANT MAY BE DRAWN, A
PROPOSITION THAT I DEVELOPED IN DETAIL IN MY DISSENT IN WARDEN V.
HAYDEN, 387 U.S. 294, 312, DECIDED ONLY THE OTHER DAY. 

A DISCREET SELECTIVE WIRETAP OR ELECTRONIC "BUGGING" IS OF COURSE NOT
RUMMAGING AROUND, COLLECTING EVERYTHING IN THE PARTICULAR TIME AND
SPACE ZONE.  BUT EVEN THOUGH IT IS LIMITED IN TIME, IT IS THE GREATEST
OF ALL INVASIONS OF PRIVACY.  IT PLACES A GOVERNMENT AGENT IN THE
BEDROOM, IN THE BUSINESS CONFERENCE, IN THE SOCIAL HOUR, IN THE
LAWYER'S OFFICE - EVERYWHERE AND ANYWHERE A "BUG" CAN BE PLACED. 

IF A STATUTE WERE TO AUTHORIZE PLACING A POLICEMAN IN EVERY HOME OR
OFFICE WHERE IT WAS SHOWN THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT
EVIDENCE OF CRIME WOULD BE OBTAINED, THERE IS LITTLE DOUBT THAT IT
WOULD BE STRUCK DOWN AS A BALD INVASION OF PRIVACY, FAR WORSE THAN THE
GENERAL WARRANTS PROHIBITED BY THE FOURTH AMENDMENT.  I CAN SEE NO
DIFFERENCE BETWEEN SUCH A STATUTE AND ONE AUTHORIZING ELECTRONIC
SURVEILLANCE, WHICH, IN EFFECT, PLACES AN INVISIBLE POLICEMAN IN THE
HOME.  IF ANYTHING, THE LATTER IS MORE OFFENSIVE BECAUSE THE HOMEOWNER
IS COMPLETELY UNAWARE OF THE INVASION OF PRIVACY. 

THE TRADITIONAL WIRETAP OR ELECTRONIC EAVESDROPPING DEVICE
CONSTITUTES A DRAGNET, SWEEPING IN ALL CONVERSATIONS WITHIN ITS SCOPE -
WITHOUT REGARD TO THE PARTICIPANTS OR THE NATURE OF THE CONVERSATIONS. 
IT INTRUDES UPON THE PRIVACY OF THOSE NOT EVEN SUSPECTED OF CRIME AND
INTERCEPTS THE MOST INTIMATE OF CONVERSATIONS.  THUS, IN THE COPLON
CASE (UNITED STATES V. COPLON, 91 F. SUPP. 867, REV'D, 191 F.2D 749)
WIRETAPS OF THE DEFENDANT'S HOME AND OFFICE TELEPHONES RECORDED
CONVERSATIONS BETWEEN THE DEFENDANT AND HER MOTHER, A QUARREL BETWEEN A
HUSBAND AND WIFE WHO HAD NO CONNECTION WITH THE CASE, AND CONFERENCES
BETWEEN THE DEFENDANT AND HER ATTORNEY CONCERNING THE PREPARATION OF
BRIEFS, TESTIMONY OF GOVERNMENT WITNESSES, SELECTION OF JURORS AND
TRIAL STRATEGY.  WESTIN, THE WIRE-TAPPING PROBLEM: AN ANALYSIS AND A
LEGISLATIVE PROPOSAL, 52 COL. L. REV. 165, 170-171 (1952); BARTH, THE
LOYALTY OF FREE MEN 173 (1951).  IT IS ALSO REPORTED THAT THE FBI
INCIDENTALLY LEARNED ABOUT AN AFFAIR, TOTALLY UNRELATED TO ESPIONAGE,
BETWEEN THE DEFENDANT AND A JUSTICE DEPARTMENT ATTORNEY.  BARTH, SUPRA,
AT 173.  WHILE TAPPING ONE TELEPHONE, POLICE RECORDED CONVERSATIONS
INVOLVING, AT THE OTHER END, THE JUILLIARD SCHOOL OF MUSIC, BROOKLYN
LAW SCHOOL, CONSOLIDATED RADIO ARTISTS, WESTERN UNION, MERCANTILE
COMMERCIAL BANK, SEVERAL RESTAURANTS, A REAL ESTATE COMPANY, A DRUG
STORE, MANY ATTORNEYS, AN IMPORTER, A DRY CLEANING ESTABLISHMENT, A
NUMBER OF TAVERNS, A GARAGE, AND THE PRUDENTIAL INSURANCE COMPANY. 
WESTIN, SUPRA, AT 188, N. 112.  THESE CASES ARE BUT A FEW OF MANY
DEMONSTRATING THE SWEEPING NATURE OF ELECTRONIC TOTAL SURVEILLANCE AS
WE KNOW IT TODAY. 

IT IS, OF COURSE, POSSIBLE FOR A STATUTE TO PROVIDE THAT WIRETAP OR
ELECTRONIC EAVESDROP EVIDENCE IS ADMISSIBLE ONLY IN A PROSECUTION FOR
THE CRIME TO WHICH THE SHOWING OF PROBABLE CAUSE RELATED.  SEE NEV.
REV. STAT. SEC 200.680 (1963).  BUT SUCH A LIMITATION WOULD NOT ALTER
THE FACT THAT THE ORDER AUTHORIZES A GENERAL SEARCH.  WHETHER OR NOT
THE EVIDENCE OBTAINED IS USED AT A TRIAL FOR ANOTHER CRIME, THE PRIVACY
OF THE INDIVIDUAL HAS BEEN INFRINGED BY THE INTERCEPTION OF ALL OF HIS
CONVERSATIONS.  AND, EVEN THOUGH THE INFORMATION IS NOT INTODUCED AS
EVIDENCE, IT CAN AND PROBABLY WILL BE USED AS LEADS AND BACKGROUND
INFORMATION.  AGAIN, A STATUTE COULD PROVIDE THAT EVIDENCE DEVELOPED
FROM EAVESDROP INFORMATION COULD NOT BE USED AT TRIAL.  CF.
SILVERTHORNE LUMBER CO., INC. V. UNITED STATES, 251 U.S. 385, 392;
NARDONE V. UNITED STATES, 308 U.S. 338; SILVERMAN V. UNITED STATES, 365
U.S. 505.  BUT, UNDER A REGIME OF TOTAL SURVEILLANCE, WHERE A MULTITUDE
OF CONVERSATIONS ARE RECORDED, IT WOULD BE VERY DIFFICULT TO SHOW WHICH
ASPECTS OF THE INFORMATION HAD BEEN USED AS INVESTIGATIVE INFORMATION. 

AS MY BROTHER WHITE SAYS IN HIS DISSENT, THIS SAME VICE INHERES IN
ANY SEARCH FOR TANGIBLE EVIDENCE SUCH AS INVOICES, LETTERS, DIARIES,
AND THE LIKE.  "IN SEARCHING FOR SEIZABLE MATTERS, THE POLICE MUST
NECESSARILY SEE OR HEAR, AND COMPREHEND, ITEMS WHICH DO NOT RELATE TO
THE PURPOSE OF THE SEARCH."  THAT IS PRECISELY WHY THE FOURTH AMENDMENT
MADE ANY SUCH RUMMAGING AROUND UNCONSTITUTIONAL, EVEN THOUGH SUPPORTED
BY A FORMALLY ADEQUATE WARRANT.  THAT UNDERWRITES MY DISSENT IN
HAYDEN. 

WITH ALL RESPECT, MY BROTHER BLACK MISSES THE POINT OF THE FOURTH
AMENDMENT.  IT DOES NOT MAKE EVERY SEARCH CONSTITUTIONAL PROVIDED THERE
IS A WARRANT THAT IS TECHNICALLY ADEQUATE.  THE HISTORY OF THE FOURTH
AMENDMENT, AS I HAVE SHOWN IN MY DISSENT IN THE HAYDEN CASE, MAKES IT
PLAIN THAT ANY SEARCH IN THE PRECINCTS OF THE HOME FOR PERSONAL ITEMS
THAT ARE LAWFULLY POSSESSED AND NOT ARTICLES OF A CRIME IS
"UNREASONABLE."  THAT IS THE ESSENCE OF THE "MERE EVIDENCE" RULE THAT
LONG OBTAINED UNTIL OVERRULED BY HAYDEN. 

THE WORDS THAT A MAN SAYS CONSCIOUSLY ON A RADIO ARE PUBLIC
PROPERTY.  BUT I DO NOT SEE HOW GOVERNMENT USING SURREPTITIOUS METHODS
CAN PUT A PERSON ON THE RADIO AND USE HIS WORDS TO CONVICT HIM.  UNDER
OUR REGIME A MAN STANDS MUTE IF HE CHOOSES, OR TALKS IF HE CHOOSES. 
THE TEST IS WHETHER HE ACTS VOLUNTARILY.  THAT IS THE ESSENCE OF THE
FACE OF PRIVACY PROTECTED BY THE "MERE EVIDENCE" RULE.  FOR THE FOURTH
AMENDMENT AND THE FIFTH COME INTO PLAY WHEN THE ACCUSED IS "THE
UNWILLING SOURCE OF THE EVIDENCE" (GOULED V. UNITED STATES, 255 U.S.
298, 306), THERE BEING NO DIFFERENCE "WHETHER HE BE OBLIGED TO SUPPLY
EVIDENCE AGAINST HIMSELF OR WHETHER SUCH EVIDENCE BE OBTAINED BY AN
ILLEGAL SEARCH OF HIS PREMISES AND SEIZURE OF HIS PRIVATE PAPERS." 
IBID. 

THAT IS THE ESSENCE OF MY DISSENT IN HAYDEN.  IN SHORT, I DO NOT SEE
HOW ANY ELECTRONIC SURVEILLANCE THAT COLLECTS EVIDENCE OR PROVIDES
LEADS TO EVIDENCE IS OR CAN BE CONSTITUTIONAL UNDER THE FOURTH AND
FIFTH AMENDMENTS.  WE COULD AMEND THE CONSTITUTION AND SO PROVIDE - A
STEP THAT WOULD TAKE US CLOSER TO THE IDEOLOGICAL GROUP WE PROFESS TO
DESPISE.  UNTIL THE AMENDING PROCESS USHERS US INTO THAT KIND OF
TOTALITARIAN REGIME, I WOULD ADHERE TO THE PROTECTION OF PRIVACY WHICH
THE FOURTH AMENDMENT, FASHIONED IN CONGRESS AND SUBMITTED TO THE
PEOPLE, WAS DESIGNED TO AFFORD THE INDIVIDUAL.   AND UNLIKE MY BROTHER
BLACK, I WOULD ADHERE TO MAPP V. OHIO, 367 U.S. 643, AND APPLY THE
EXCLUSIONARY RULE IN STATE AS WELL AS FEDERAL TRIALS - A RULE FASHIONED
OUT OF THE FOURTH AMENDMENT AND CONSTITUTING A HIGH CONSTITUTIONAL
BARRICADE AGAINST THE INTRUSION OF BIG BROTHER INTO THE LIVES OF ALL OF
US. 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

I FULLY AGREE WITH MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR.
JUSTICE WHITE THAT THIS NEW YORK LAW IS ENTIRELY CONSTITUTIONAL.  IN
SHORT, I THINK THAT "ELECTRONIC EAVESDROPPING, AS SUCH OR AS IT IS
PERMITTED BY THIS STATUTE, IS NOT AN UNREASONABLE SEARCH AND SEIZURE." 
(FN1)  THE STATUTE CONTAINS MANY PROVISIONS MORE STRINGENT THAN THE
FOURTH AMENDMENT GENERALLY REQUIRES, AS MR. JUSTICE BLACK HAS SO
FORCEFULLY POINTED OUT.  AND THE PETITIONER HIMSELF HAS TOLD US THAT
THE LAW'S "REASONABLE GROUNDS" REQUIREMENT "IS UNDISPUTEDLY EQUIVALENT
TO THE PROBABLE CAUSE REQUIREMENT OF THE FOURTH AMENDMENT."  THIS IS
CONFIRMED BY DECISIONS OF THE NEW YORK COURTS.  PEOPLE V. COHEN, 42
MISC. 2D 403, 248 N.Y.S.2D 339; PEOPLE V. BESHANY, 43 MISC. 2D 521, 252
N.Y.S.2D 110; PEOPLE V. GROSSMAN, 45 MISC. 2D 557, 257 N.Y.S.2D 266. 
OF COURSE, A STATE COURT'S CONSTRUCTION OF A STATE STATUTE IS BINDING
UPON US. 

IN ORDER TO HOLD THIS STATUTE UNCONSTITUTIONAL, THEREFORE, WE WOULD
HAVE TO EITHER REWRITE THE STATUTE OR REWRITE THE CONSTITUTION.  I CAN
ONLY CONCLUDE THAT THE COURT TODAY SEEMS TO HAVE REWRITTEN BOTH. 

THE ISSUE BEFORE US, AS MR. JUSTICE WHITE SAYS, IS "WHETHER THIS
SEARCH COMPLIED WITH FOURTH AMENDMENT STANDARDS."  FOR ME THAT ISSUE IS
AN EXTREMELY CLOSE ONE IN THE CIRCUMSTANCES OF THIS CASE.  IT CERTAINLY
CANNOT BE RESOLVED BY INCANTATION OF RITUAL PHRASES LIKE "GENERAL
WARRANT."  ITS RESOLUTION INVOLVES "THE UNAVOIDABLE TASK IN ANY SEARCH
AND SEIZURE CASE: WAS THE PARTICULAR SEARCH AND SEIZURE REASONABLE OR
NOT?"  (FN2) 

I WOULD HOLD THAT THE AFFIDAVITS ON WHICH THE JUDICIAL ORDER ISSUED
IN THIS CASE DID NOT CONSTITUTE A SHOWING OF PROBABLE CAUSE ADEQUATE TO
JUSTIFY THE AUTHORIZING ORDER.  THE NEED FOR PARTICULARITY AND EVIDENCE
OF RELIABILITY IN THE SHOWING REQUIRED WHEN JUDICIAL AUTHORIZATION IS
SOUGHT FOR THE KIND OF ELECTRONIC EAVESDROPPING INVOLVED IN THIS CASE
IS ESPECIALLY GREAT.  THE STANDARD OF REASONABLENESS EMBODIED IN THE
FOURTH AMENDMENT DEMANDS THAT THE SHOWING OF JUSTIFICATION MATCH THE
DEGREE OF INTRUSION.  BY ITS VERY NATURE ELECTRONIC EAVESDROPPING FOR A
60-DAY PERIOD, EVEN OF A SPECIFIED OFFICE, INVOLVES A BROAD INVASION OF
A CONSTITUTIONALLY PROTECTED AREA.  ONLY THE MOST PRECISE AND RIGOROUS
STANDARD OF PROBABLE CAUSE SHOULD JUSTIFY AN INTRUSION OF THIS SORT.  I
THINK THE AFFIDAVITS PRESENTED TO THE JUDGE WHO AUTHORIZED THE
ELECTRONIC SURVEILLANCE OF THE STEINMAN OFFICE FAILED TO MEET SUCH A
STANDARD. 

SO FAR AS THE RECORD SHOWS, THE ONLY BASIS FOR THE STEINMAN ORDER
CONSISTED OF TWO AFFIDAVITS.  ONE OF THEM CONTAINED FACTUAL ALLEGATIONS
SUPPORTED ONLY BY BARE, UNEXPLAINED REFERENCES TO "EVIDENCE" IN THE
DISTRICT ATTORNEY'S OFFICE AND "EVIDENCE" OBTAINED BY THE NEYER
EAVESDROP.  NO UNDERLYING FACTS WERE PRESENTED ON THE BASIS OF WHICH
THE JUDGE COULD EVALUATE THESE GENERAL ALLEGATIONS.  THE SECOND
AFFIDAVIT WAS NO MORE THAN A STATEMENT OF ANOTHER ASSISTANT DISTRICT
ATTORNEY THAT HE HAD READ HIS ASSOCIATE'S AFFIDAVIT AND WAS SATISFIED
ON THAT BASIS ALONE THAT PROPER GROUNDS WERE PRESENTED FOR THE ISSUANCE
OF AN AUTHORIZING ORDER. 

THIS MIGHT BE ENOUGH TO SATISFY THE STANDARDS OF THE FOURTH AMENDMENT
FOR A CONVENTIONAL SEARCH OR ARREST.  CF. AGUILAR V. TEXAS, 378 U.S.
108, 116 (DISSENTING OPINION).  BUT I THINK IT WAS CONSTITUTIONALLY
INSUFFICIENT TO CONSTITUTE PROBABLE CAUSE TO JUSTIFY AN INTRUSION OF
THE SCOPE AND DURATION THAT WAS PERMITTED IN THIS CASE. 

ACCORDINGLY, I WOULD REVERSE THE JUDGMENT. 

FN1  DISSENTING OPINION OF MR. JUSTICE HARLAN, POST, P. 89, AT 94. 

FN2  SEE DISSENTING OPINION OF MR. JUSTICE BLACK, POST, P. 70, AT
83. 

MR. JUSTICE BLACK, DISSENTING. 

NEW YORK HAS AN EAVESDROPPING STATUTE WHICH PERMITS ITS JUDGES TO
AUTHORIZE STATE OFFICERS TO PLACE ON OTHER PEOPLE'S PREMISES ELECTRONIC
DEVICES THAT WILL OVERHEAR AND RECORD TELEPHONIC AND OTHER
CONVERSATIONS FOR THE PURPOSE OF DETECTING SECRET CRIMES AND
CONSPIRACIES AND OBTAINING EVIDENCE TO CONVICT CRIMINALS IN COURT. 
JUDGES CANNOT ISSUE SUCH EAVESDROPPING PERMITS EXCEPT UPON OATH OR
AFFIRMATION OF CERTAIN STATE OFFICERS THAT "THERE IS REASONABLE GROUND
TO BELIEVE THAT EVIDENCE OF CRIME MAY BE THUS OBTAINED, AND
PARTICULARLY DESCRIBING THE PERSON OR PERSONS WHOSE COMMUNICATIONS,
CONVERSATIONS OR DISCUSSIONS ARE TO BE OVERHEARD OR RECORDED, AND THE
PURPOSE THEREOF  ...  ."  N.Y. CODE CRIM. PROC. SEC 813-A.  EVIDENCE
OBTAINED BY SUCH ELECTRONIC EAVESDROPPING WAS USED TO CONVICT THE
PETITIONER HERE OF CONSPIRACY TO BRIBE THE CHAIRMAN OF THE STATE LIQUOR
AUTHORITY WHICH CONTROLS THE ISSUANCE OF LIQUOR LICENSES IN NEW YORK. 
IT IS STIPULATED THAT WITHOUT THIS EVIDENCE A CONVICTION COULD NOT HAVE
BEEN OBTAINED, AND IT SEEMS APPARENT THAT USE OF THAT EVIDENCE SHOWED
PETITIONER TO BE A BRIBER BEYOND ALL REASONABLE DOUBT.  NOTWITHSTANDING
PETITIONER'S OBVIOUS GUILT, HOWEVER,THE COURT NOW STRIKES DOWN HIS
CONVICTION IN A WAY THAT PLAINLY MAKES IT IMPOSSIBLE EVER TO CONVICT
HIM AGAIN.  THIS IS TRUE BECAUSE THE COURT NOT ONLY HOLDS THAT THE
JUDICIAL ORDERS WHICH WERE THE BASIS OF THE AUTHORITY TO EAVESDROP WERE
INSUFFICIENT, BUT ALSO HOLDS THAT THE NEW YORK EAVESDROPPING STATUTE IS
ON ITS FACE VIOLATIVE OF THE FOURTH AMENDMENT.  AND WHILE THE COURT
FAINTLY INTIMATES TO THE CONTRARY, IT SEEMS OBVIOUS TO ME THAT ITS
HOLDING, BY CREATING OBSTACLES THAT CANNOT BE OVERCOME, MAKES IT
COMPLETELY IMPOSSIBLE FOR THE STATE OR THE FEDERAL GOVERNMENT EVER TO
HAVE A VALID EAVESDROPPING STATUTE.  ALL OF THIS IS DONE, IT SEEMS TO
ME, IN PART BECAUSE OF THE COURT'S HOSTILITY TO EAVESDROPPING AS
"IGNOBLE" AND "DIRTY BUSINESS" (FN1) AND IN PART BECAUSE OF FEAR THAT
RAPIDLY ADVANCING SCIENCE AND TECHNOLOGY IS MAKING EAVESDROPPING MORE
AND MORE EFFECTIVE.  CF. LOPEZ V. UNITED STATES, 373 U.S. 427, 446
(DISSENTING OPINION OF BRENNAN, J.).  NEITHER THESE, NOR ANY OTHER
GROUNDS THAT I CAN THINK OF, ARE SUFFICIENT IN MY JUDGMENT TO JUSTIFY A
HOLDING THAT THE USE OF EVIDENCE SECURED BY EAVESDROPPING IS BARRED BY
THE CONSTITUTION. 
I. 

PERHAPS AS GOOD A DEFINITION OF EAVESDROPPING AS ANOTHER IS THAT IT
IS LISTENING SECRETLY AND SOMETIMES "SNOOPILY" TO CONVERSATIONS AND
DISCUSSIONS BELIEVED TO BE PRIVATE BY THOSE WHO ENGAGE IN THEM. 
NEEDLESS TO SAY, EAVESDROPPING IS NOT RANKED AS ONE OF THE MOST LEARNED
OR MOST POLITE PROFESSIONS, NOR PERHAPS WOULD AN EAVESDROPPER BE
SELECTED BY MANY PEOPLE AS THE MOST DESIRABLE AND ATTRACTIVE
ASSOCIATE.  BUT THE PRACTICE HAS UNDOUBTEDLY GONE ON SINCE THE
BEGINNING OF HUMAN SOCIETY, AND DURING THAT TIME IT HAS DEVELOPED A
USEFULNESS OF ITS OWN, PARTICULARLY IN THE DETECTION AND PROSECUTION OF
CRIME. 

EAVEDROPPERS HAVE ALWAYS BEEN DEEMED COMPETENT WITNESSES IN ENGLISH
AND AMERICAN COURTS.  THE MAIN TEST OF ADMISSIBILITY HAS BEEN RELEVANCE
AND FIRST-HAND KNOWLEDGE, NOT BY WHOM OR BY WHAT METHOD PROFFERED
EVIDENCE WAS OBTAINED.  IT IS TRUE THAT IN ENGLAND PEOPLE WHO OBTAINED
EVIDENCE BY UNLAWFUL MEANS WERE HELD LIABLE IN DAMAGES AS IN ENTICK V.
CARRINGTON, 19 HOW.  ST. TR. 1029.  BUT EVEN THAT FAMOUS CIVIL
LIBERTIES CASE MADE NO DEPARTURE FROM THE TRADITIONAL COMMON-LAW RULE
THAT RELEVANT EVIDENCE IS ADMISSIBLE, EVEN THOUGH OBTAINED CONTRARY TO
ETHICS, MORALS, OR LAW.  AND, FOR REASONS THAT FOLLOW, THIS EVIDENTIARY
RULE IS WELL ADAPTED TO OUR GOVERNMENT, SET UP, AS IT WAS, TO "INSURE
DOMESTIC TRANQUILITY" UNDER A SYSTEM OF LAWS. 

TODAY THIS COUNTRY IS PAINFULLY REALIZING THAT EVIDENCE OF CRIME IS
DIFFICULT FOR GOVERNMENTS TO SECURE.  CRIMINALS ARE SHREWD AND
CONSTANTLY SEEK, TOO OFTEN SUCCESSFULLY, TO CONCEAL THEIR TRACKS AND
THEIR OUTLAWRY FROM LAW OFFICERS.  BUT IN CARRYING ON THEIR NEFARIOUS
PRACTICES PROFESSIONAL CRIMINALS USUALLY TALK CONSIDERABLY.  NATURALLY,
THIS TALK IS DONE, THEY HOPE, IN A SECRET WAY THAT WILL KEEP IT FROM
BEING HEARD BY LAW ENFORCEMENT AUTHORITIES OR BY OTHERS WHO MIGHT
REPORT TO THE AUTHORITIES.  IN THIS SITUATION "EAVESDROPPERS,"
"INFORMERS," AND "SQUEALERS," AS THEY ARE VARIOUSLY CALLED, ARE
HELPFUL, EVEN THOUGH UNPOPULAR, AGENTS OF LAW ENFORCEMENT.  AND IT
NEEDS NO EMPIRICAL STUDIES OR STATISTICS TO ESTABLISH THAT
EAVESDROPPING TESTIMONY PLAYS AN IMPORTANT ROLE IN EXPOSING CRIMINALS
AND BANDS OF CRIMINALS WHO BUT FOR SUCH EVIDENCE WOULD GO ALONG THEIR
CRIMINAL WAY WITH LITTLE POSSIBILITY OF EXPOSURE, PROSECUTION, OR
PUNISHMENT.  SUCH, OF COURSE, IS THIS PARTICULAR CASE BEFORE US. 

THE EAVESDROP EVIDENCE HERE SHOWS THIS PETITIONER TO BE A BRIBER, A
CORRUPTER OF TRUSTED PUBLIC OFFICIALS, A POISONER OF THE HONEST
ADMINISTRATION OF GOVERNMENT, UPON WHICH GOOD PEOPLE MUST DEPEND TO
OBTAIN THE BLESSINGS OF A DECENT ORDERLY SOCIETY.  NO MAN'S PRIVACY,
PROPERTY, LIBERTY, OR LIFE IS SECURE, IF ORGANIZED OR EVEN UNORGANIZED
CRIMINALS CAN GO THEIR WAY UNMOLESTED, EVER AND EVER FURTHER IN THEIR
UNBOUNDED LAWLESSNESS.  HOWEVER OBNOXIOUS EAVESDROPPERS MAY BE THEY ARE
ASSUREDLY NOT ENGAGED IN A MORE "IGNOBLE" OR "DIRTY BUSINESS" THAN ARE
BRIBERS, THIEVES, BURGLARS, ROBBERS, RAPISTS, KIDNAPERS, AND MURDERERS,
NOT TO SPEAK OF OTHERS.  AND IT CANNOT BE DENIED THAT TO DEAL WITH SUCH
SPECIMENS OF OUR SOCIETY, EAVESDROPPERS ARE NOT MERELY USEFUL, THEY ARE
FREQUENTLY A NECESSITY.  I REALIZE THAT SOME MAY SAY, "WELL, LET THE
PROSECUTING OFFICERS USE MORE SCIENTIFIC MEASURES THAN EAVESDROPPING." 
IT IS ALWAYS EASY TO HINT AT MYSTERIOUS MEANS AVAILABLE JUST AROUND THE
CORNER TO CATCH OUTLAWS.  BUT CRIMES, UNSPEAKABLY HORRID CRIMES, ARE
WITH US IN THIS COUNTRY, AND WE CANNOT AFFORD TO DISPENSE WITH ANY
KNOWN METHOD OF DETECTING AND CORRECTING THEM UNLESS IT IS FORBIDDEN BY
THE CONSTITUTION OR DEEMED INADVISABLE BY LEGISLATIVE POLICY - NEITHER
OF WHICH I BELIEVE TO BE TRUE ABOUT EAVESDROPPING. 

II. 

SINCE EAVESDROP EVIDENCE OBTAINED BY INDIVIDUALS IS ADMISSIBLE AND
HELPFUL I CAN PERCEIVE NO PERMISSIBLE REASON FOR COURTS TO REJECT IT,
EVEN WHEN OBTAINED SURREPTITIOUSLY BY MACHINES, ELECTRONIC OR
OTHERWISE.  CERTAINLY EVIDENCE PICKED UP AND RECORDED ON A MACHINE IS
NOT LESS TRUSTWORTHY.  IN BOTH PERCEPTION AND RETENTION A MACHINE IS
MORE ACCURATE THAN A HUMAN LISTENER.  THE MACHINE DOES NOT HAVE TO
DEPEND ON A DEFECTIVE MEMORY TO REPEAT WHAT WAS SAID IN ITS PRESENCE
FOR IT REPEATS THE VERY WORDS UTTERED.  I REALIZE THAT THERE IS
COMPLAINT THAT SOMETIMES THE WORDS ARE JUMBLED OR INDISTINCT.  BUT
MACHINE EVIDENCE NEED NOT BE DONE AWAY WITH TO CORRECT SUCH OCCASIONAL
DEFECTIVE RECORDING.  THE TRIAL JUDGE HAS AMPLE POWER TO REFUSE TO
ADMIT INDISTINCT OR GARBLED RECORDINGS. 

THE PLAIN FACTS ARE, HOWEVER, THAT THERE IS NO INHERENT DANGER TO A
DEFENDANT IN USING THESE ELECTRONIC RECORDINGS EXCEPT THAT WHICH
RESULTS FROM THE USE OF TESTIMONY THAT IS SO UNERRINGLY ACCURATE THAT
IT IS PRACTICALLY BOUND TO BRING ABOUT A CONVICTION.  IN OTHER WORDS,
THIS KIND OF TRANSCRIBED EAVESDROPPING EVIDENCE IS FAR MORE LIKELY TO
LEAD A JUDGE OR JURY TO REACH A CORRECT JUDGMENT OR VERDICT - THE BASIC
AND ALWAYS-PRESENT OBJECTIVE OF A TRIAL. 

                                        III. 

THE SUPERIOR QUALITY OF EVIDENCE RECORDED AND TRANSCRIBED ON AN
ELECTRONIC DEVICE IS, OF COURSE, NO EXCUSE FOR USING IT AGAINST A
DEFENDANT, IF, AS THE COURT HOLDS, ITS USE VIOLATES THE FOURTH
AMENDMENT.  IF THAT IS TRUE, NO AMOUNT OF COMMON-LAW TRADITION OR
ANYTHING ELSE CAN JUSTIFY SUCH EVIDENCE.  BUT I DO NOT BELIEVE THE
FOURTH AMENDMENT, OR ANY OTHER, BANS THE USE OF EVIDENCE OBTAINED BY
EAVESDROPPING. 

THERE ARE CONSTITUTIONAL AMENDMENTS THAT SPEAK IN CLEAR UNAMBIGUOUS
PROHIBITIONS OR COMMANDS.  THE FIRST, FOR ILLUSTRATION, DECLARES THAT
"CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING THE FREEDOM OF SPEECH, OR
OF THE PRESS  ... ."  THE FIFTH DECLARES THAT A PERSON SHALL NOT BE
HELD TO ANSWER FOR A CAPITAL OR OTHERWISE INFAMOUS CRIME EXCEPT ON A
GRAND JURY INDICTMENT; SHALL NOT TWICE BE PUT IN JEOPARDY OF LIFE OR
LIMB FOR THE SAME OFFENSE; NOR BE COMPELLED IN ANY CRIMINAL CASE TO BE
A WITNESS AGAINST HIMSELF.  THESE PROVISIONS OF THE FIRST AND FIFTH
AMENDMENTS, AS WELL AS OTHERS I NEED NOT MENTION AT THIS TIME, ARE
CLEAR UNCONDITIONAL COMMANDS THAT SOMETHING SHALL NOT BE DONE. 
PARTICULARLY OF INTEREST IN COMPARISON WITH THE FOURTH AMENDMENT IS THE
FIFTH AMENDMENT'S PROHIBITION AGAINST COMPELLING A PERSON TO BE A
WITNESS AGAINST HIMSELF.  THE FIFTH AMENDMENT'S LANGUAGE FORBIDS A
COURT TO HEAR EVIDENCE AGAINST A PERSON THAT HE HAS BEEN COMPELLED TO
GIVE, WITHOUT REGARD TO REASONABLENESS OR ANYTHING ELSE.  UNLIKE ALL OF
THESE JUST-NAMED FIFTH AMENDMENT PROVISIONS, THE FOURTH AMENDMENT
RELATING TO SEARCHES AND SEIZURES CONTAINS NO SUCH UNEQUIVOCAL
COMMANDS.  IT PROVIDES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

OBVIOUSLY, THOSE WHO WROTE THIS FOURTH AMENDMENT KNEW FROM EXPERIENCE
THAT SEARCHES AND SEIZURES WERE TOO VALUABLE TO LAW ENFORCEMENT TO
PROHIBIT THEM ENTIRELY, BUT ALSO KNEW AT THE SAME TIME THAT WHILE
SEARCHES OR SEIZURES MUST NOT BE STOPPED, THEY SHOULD BE SLOWED DOWN,
AND WARRANTS SHOULD BE ISSUED ONLY AFTER STUDIED CAUTION.  THIS
ACCOUNTS FOR USE OF THE IMPRECISE AND FLEXIBLE TERM, "UNREASONABLE,"
THE KEY WORD PERMEATING THIS WHOLE AMENDMENT.  ALSO, IT IS NOTICEABLE
THAT THIS AMENDMENT CONTAINS NO APPROPRIATE LANGUAGE, AS DOES THE
FIFTH, TO FORBID THE USE AND INTRODUCTION OF SEARCH AND SEIZURE
EVIDENCE EVEN THOUGH SECURED "UNREASONABLY."  NOR DOES THIS FOURTH
AMENDMENT ATTEMPT TO DESCRIBE WITH PRECISION WHAT WAS MEANT BY ITS
WORDS, "PROBABLE CAUSE"; NOR BY WHOM THE "OATH OF AFFIRMATION" SHOULD
BE TAKEN; NOR WHAT IT NEED CONTAIN.  ALTHOUGH THE AMENDMENT DOES
SPECIFICALLY SAY THAT THE WARRANT SHOULD PARTICULARLY DESCRIBE "THE
PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED," IT DOES
NOT IMPOSE ANY PRECISE LIMITS ON THE SPATIAL OR TEMPORAL EXTENT OF THE
SEARCH OR THE QUANTITATIVE EXTENT OF THE SEIZURE.  THUS THIS AMENDMENT,
AIMED AGAINST ONLY "UNREASONABLE" SEARCHES AND SEIZURES, SEEKS TO GUARD
AGAINST THEM BY PROVIDING, AS THE COURT SAYS, THAT A "NEUTRAL AND
DETACHED AUTHORITY BE INTERPOSED BETWEEN THE POLICE AND THE PUBLIC,
JOHNSON V. UNITED STATES, 333 U.S. 10, 14."  AND, AS THE COURT ADMITS,
THE AMENDMENT ITSELF PROVIDES NO SANCTIONS TO ENFORCE ITS STANDARDS OF
SEARCHES, SEIZURES, AND WARRANTS.  THIS WAS LEFT FOR CONGRESS TO CARRY
OUT IF IT CHOSE TO DO SO. 

HAD THE FRAMERS OF THIS AMENDMENT DESIRED TO PROHIBIT THE USE IN
COURT OF EVIDENCE SECURED BY AN UNREASONABLE SEARCH OR SEIZURE, THEY
WOULD HAVE USED PLAIN APPROPRIATE LANGUAGE TO DO SO, JUST AS THEY DID
IN PROHIBITING THE USE OF ENFORCED SELF-INCRIMINATORY EVIDENCE IN THE
FIFTH AMENDMENT.  SINCE THE FOURTH AMENDMENT CONTAINS NO LANGUAGE
FORBIDDING THE USE OF SUCH EVIDENCE, I THINK THERE IS NO SUCH
CONSTITUTIONAL RULE.  SO I CONTINUE TO BELIEVE THAT THE EXCLUSIONARY
RULE FORMULATED TO BAR SUCH EVIDENCE IN THE WEEKS (FN2) CASE IS NOT
ROOTED IN THE FOURTH AMENDMENT BUT RESTS ON THE "SUPERVISORY POWER" OF
THIS COURT OVER THE OTHER FEDERAL COURTS - THE SAME JUDICIAL POWER
INVOKED IN MCNABB V. UNITED STATES, 318 U.S. 332.  SEE MY CONCURRING
OPINIONS IN WOLF V. COLORADO, 338 U.S. 25, 39, AND MAPP V. OHIO, 367
U.S. 643, 661.  (FN3) FOR THESE REASONS AND OTHERS TO BE STATED, I DO
NOT BELIEVE THE FOURTH AMENDMENT STANDING ALONE, EVEN IF APPLICABLE TO
ELECTRONIC EAVESDROPPING, COMMANDS EXCLUSION OF THE OVERHEARD EVIDENCE
IN THIS CASE. 

IN REACHING MY CONCLUSION THAT THE FOURTH AMENDMENT ITSELF DOES NOT
BAR THE USE OF EAVESDROPPING EVIDENCE IN COURTS, I DO NOT OVERLOOK THE
FACT THAT THE COURT AT PRESENT IS READING THE AMENDMENT AS EXPRESSLY
AND UNQUALIFIEDLY BARRING INVASIONS OF "PRIVACY" RATHER THAN MERELY
FORBIDDING "UNREASONABLE SEARCHES AND SEIZURES."  ON THIS PREMISE OF
THE CHANGED COMMAND OF THE AMENDMENT, THE COURT'S TASK IN PASSING ON
THE USE OF EAVESDROPPING EVIDENCE BECOMES A SIMPLE ONE.  ITS SYLLOGISM
IS THIS: 

THE FOURTH AMENDMENT FORBIDS INVASION OF PRIVACY AND EXCLUDES
EVIDENCE OBTAINED BY SUCH INVASION; 

TO LISTEN SECRETLY TO A MAN'S CONVERSATIONS OR TO TAP HIS TELEPHONE
CONVERSATIONS INVADES HIS PRIVACY; 

THEREFORE, THE FOURTH AMENDMENT BARS USE OF EVIDENCE OBTAINED BY
EAVESDROPPING OR BY TAPPING TELEPHONE WIRES. 

THE FOREGOING SYLLOGISM IS FAULTY FOR AT LEAST TWO REASONS: (1) THE
FOURTH AMENDMENT ITSELF CONTAINS NO PROVISION FROM WHICH CAN BE IMPLIED
A PURPOSE TO BAR EVIDENCE OR ANYTHING ELSE SECURED BY AN "UNREASONABLE
SEARCH OR SEIZURE"; (2) THE FOURTH AMENDMENT'S LANGUAGE, FAIRLY
CONSTRUED, REFERS SPECIFICALLY TO "UNREASONABLE SEARCHES AND SEIZURES"
AND NOT TO A BROAD UNDEFINED RIGHT TO "PRIVACY" IN GENERAL.  TO ATTEMPT
TO TRANSFORM THE MEANING OF THE AMENDMENT, AS THE COURT DOES HERE, IS
TO PLAY SLEIGHT-OF-HAND TRICKS WITH IT.  IT IS IMPOSSIBLE FOR ME TO
THINK THAT THE WISE FRAMERS OF THE FOURTH AMENDMENT WOULD EVER HAVE
DREAMED ABOUT DRAFTING AN AMENDMENT TO PROTECT THE "RIGHT OF PRIVACY." 
THAT EXPRESSION, LIKE A CHAMELEON, HAS A DIFFERENT COLOR FOR EVERY
TURNING.  IN FACT, USE OF "PRIVACY" AS THE KEYWORD IN THE FOURTH
AMENDMENT SIMPLY GIVES THIS COURT A USEFUL NEW TOOL, AS I SEE IT, BOTH
TO USURP THE POLICY-MAKING POWER OF THE CONGRESS AND TO HOLD MORE STATE
AND FEDERAL LAWS UNCONSTITUTIONAL WHEN THE COURT ENTERTAINS A
SUFFICIENT HOSTILITY TO THEM.  I THEREFORE CANNOT AGREE TO HOLD NEW
YORK'S LAW UNCONSTITUTIONAL ON THE PREMISE THAT ALL LAWS THAT
UNREASONABLY INVADE PRIVACY VIOLATE THE FOURTH AMENDMENT. 

                                             IV. 

WHILE THE ELECTRONIC EAVESDROPPING HERE BEARS SOME ANALOGY TO THE
PROBLEMS WITH WHICH THE FOURTH AMENDMENT IS CONCERNED, I AM BY NO MEANS
SATISFIED THAT THE AMENDMENT CONTROLS THE CONSTITUTIONALITY OF SUCH
EAVESDROPPING.  AS POINTED OUT, THE AMENDMENT ONLY BANS SEARCHES AND
SEIZURES OF "PERSONS, HOUSES, PAPERS, AND EFFECTS."  THIS LITERAL
LANGUAGE IMPORTS TANGIBLE THINGS, AND IT WOULD REQUIRE AN EXPANSION OF
THE LANGUAGE USED BY THE FRAMERS IN THE INTEREST OF "PRIVACY" OR SOME
EQUALLY VAGUE JUDGE-MADE GOAL, TO HOLD THAT IT APPLIES TO THE SPOKEN
WORD.  IT SIMPLY REQUIRES AN IMAGINATIVE TRANSFORMATION OF THE ENGLISH
LANGUAGE TO SAY THAT CONVERSATIONS CAN BE SEARCHED AND WORDS SEIZED. 
REFERRING TO WIRETAPPING, THIS COURT IN OLMSTEAD V. UNITED STATES, 277
U.S. 438, 465, REFUSED TO MAKE THAT TRANSFORMATION: 

"JUSTICE BRADLEY IN THE BOYD CASE, AND JUSTICE CLARKE IN THE GOULED
CASE, SAID THAT THE FIFTH AMENDMENT AND THE FOURTH AMENDMENT WERE TO BE
LIBERALLY CONSTRUED  ...  .  BUT THAT CAN NOT JUSTIFY ENLARGEMENT OF
THE LANGUAGE EMPLOYED BEYOND THE POSSIBLE PRACTICAL MEANING OF HOUSES,
PERSONS, PAPERS, AND EFFECTS, OR SO TO APPLY THE WORDS SEARCH AND
SEIZURE AS TO FORBID HEARING OR SIGHT." 

THOUGH OLMSTEAD HAS BEEN SEVERELY CRITICIZED BY VARIOUS INDIVIDUAL
MEMBERS OF THIS COURT, AND THOUGH THE COURT STATED AN ALTERNATIVE
GROUND FOR HOLDING THE AMENDMENT INAPPLICABLE IN THAT CASE, THE
OLMSTEAD HOLDING THAT THE FOURTH AMENDMENT DOES NOT APPLY TO EFFORTS TO
HEAR AND OBTAIN ORAL CONVERSATIONS HAS NEVER BEEN OVERRULED BY THIS
COURT.  THE COURT TODAY, HOWEVER, SUGGESTS THAT THIS HOLDING HAS BEEN
"NEGATED" BY SUBSEQUENT CONGRESSIONAL ACTION AND BY FOUR DECISIONS OF
THIS COURT.  FIRST, THE COURT INTIMATES, THOUGH IT DOES NOT EXACTLY
STATE, THAT CONGRESS "IN ANSWER TO OLMSTEAD," PASSED AN ACT TO PROHIBIT
"THE INTERCEPTION WITHOUT AUTHORIZATION AND THE DIVULGING OR PUBLISHING
OF THE CONTENTS OF TELEPHONIC COMMUNICATIONS."  THE COURT CITES NO
AUTHORITY FOR THIS STRANGE SURMISE, AND I ASSERT WITH CONFIDENCE THAT
NONE CAN BE RECITED.  AND EVEN IF IT COULD, CONGRESS' ACTION WOULD NOT
HAVE THE SLIGHTEST RELEVANCE TO THE SCOPE OF THE FOURTH AMENDMENT. 
SECOND, THE COURT CITES GOLDMAN V. UNITED STATES, 316 U.S. 129, AND ON
LEE V. UNITED STATES, 343 U.S. 747, IN AN EFFORT TO EXPLAIN AWAY
OLMSTEAD.  BUT NEITHER OF THOSE CASES PURPORTED TO REPUDIATE THE
OLMSTEAD CASE OR ANY PART OF IT.  IN FACT, IN BOTH OF THOSE CASES THE
COURT REFUSED TO EXCLUDE THE CHALLENGED EAVESDROP EVIDENCE.  FINALLY,
THE COURT RELIES ON SILVERMAN V. UNITED STATES, 365 U.S. 505, AND WONG
SUN V. UNITED STATES, 371 U.S. 471.  IN BOTH OF THESE CASES THE COURT
DID IMPLY THAT THE "FOURTH AMENDMENT MAY PROTECT AGAINST THE
OVERHEARING OF VERBAL STATEMENTS AS WELL AS AGAINST THE MORE
TRADITIONAL SEIZURE OF 'PAPERS AND EFFECTS,'" 371 U.S., AT 485, BUT IN
NEITHER DID THE COURT FIND IT NECESSARY TO OVERRULE OLMSTEAD, AN ACTION
THAT WOULD HAVE BEEN REQUIRED HAD THE COURT BASED ITS EXCLUSION OF THE
ORAL CONVERSATIONS SOLELY ON THE GROUND OF THE FOURTH AMENDMENT.  THE
FACT IS THAT BOTH SILVERMAN AND WONG SUN WERE FEDERAL CASES DEALING
WITH THE USE OF VERBAL EVIDENCE IN FEDERAL COURTS, AND THE COURT HELD
THE EVIDENCE SHOULD BE EXCLUDED BY VIRTUE OF THE EXCLUSIONARY RULE OF
THE WEEKS CASE.  AS I HAVE PREVIOUSLY POINTED OUT, THAT RULE RESTED ON
THE COURT'S SUPERVISORY POWER OVER FEDERAL COURTS, NOT ON THE FOURTH
AMENDMENT: IT IS NOT REQUIRED BY THE AMENDMENT, NOR IS A VIOLATION OF
THE AMENDMENT A PREREQUISITE TO ITS APPLICATION.  I WOULD NOT HAVE
AGREED WITH THE COURT'S OPINION IN SILVERMAN, WHICH, BY THE WAY, CITED
OLMSTEAD WITH APPROVAL, HAD I THOUGHT THAT THE RESULT DEPENDED ON
FINDING A VIOLATION OF THE FOURTH AMENDMENT OR HAD I ANY INKLING THAT
THE COURT'S GENERAL STATEMENTS ABOUT THE SCOPE OF THE AMENDMENT WERE
INTENDED TO NEGATE THE CLEAR HOLDING OF OLMSTEAD.  AND AGAIN IN WONG
SUN, WHICH DID NOT EVEN MENTION OLMSTEAD, LET ALONE OVERRULE IT, THE
COURT CLEARLY BASED ITS EXCLUSION OF ORAL STATEMENTS MADE TO FEDERAL
AGENTS DURING AN ILLEGAL ARREST ON ITS SUPERVISORY POWER TO DETER
LAWLESS CONDUCT BY FEDERAL OFFICERS AND ON THE ALTERNATIVE GROUND THAT
THE INCRIMINATING STATEMENTS WERE MADE UNDER COMPULSIVE CIRCUMSTANCES
AND WERE NOT THE PRODUCT OF A FREE WILL.  IT IS IMPOSSIBLE FOR ME TO
READ INTO THAT NONEAVESDROPPING FEDERAL CASE AN INTENT TO OVERRULE
OLMSTEAD IMPLICITLY.  IN SHORT, THE ONLY WAY THIS COURT CAN ESCAPE
OLMSTEAD HERE IS TO OVERRULE IT.  WITHOUT EXPRESSLY SAYING SO, THE
COURT'S OPINION, AS MY BROTHER DOUGLAS ACKNOWLEDGES, DOES JUST THAT. 
AND THAT OVERRULING IS ACCOMPLISHED BY THE SIMPLE EXPEDIENT OF
SUBSTITUTING FOR THE AMENDMENT'S WORDS, "THE RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS," THE WORDS "THE
RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PRIVACY," WORDS THE COURT
BELIEVES THE FRAMERS SHOULD HAVE USED, BUT DID NOT.  I HAVE FREQUENTLY
STATED MY OPPOSITION TO SUCH JUDICIAL SUBSTITUTION.  ALTHOUGH HERE THE
COURT USES IT TO EXPAND THE SCOPE OF THE FOURTH AMENDMENT TO INCLUDE
WORDS, THE COURT HAS BEEN APPLYING THE SAME PROCESS TO CONTRACT THE
FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION SO AS TO EXCLUDE
ALL TYPES OF INCRIMINATING EVIDENCE BUT WORDS, OR WHAT THE COURT
PREFERS TO CALL "TESTIMONIAL EVIDENCE."  SEE UNITED STATES V. WADE,
POST, P. 218; GILBERT V. CALIFORNIA, POST, P. 263. 

THERE IS YET ANOTHER REASON WHY I WOULD ADHERE TO THE HOLDING OF
OLMSTEAD THAT THE FOURTH AMENDMENT DOES NOT APPLY TO EAVESDROPPING. 
SINCE THE FRAMERS IN THE FIRST CLAUSE OF THE AMENDMENT SPECIFIED THAT
ONLY PERSONS, HOUSES, AND THINGS WERE TO BE PROTECTED, THEY OBVIOUSLY
WROTE THE SECOND CLAUSE, REGULATING SEARCH WARRANTS, IN REFERENCE ONLY
TO SUCH TANGIBLE THINGS.  TO HOLD, AS THE COURT DOES, THAT THE FIRST
CLAUSE PROTECTS WORDS, NECESSITATES EITHER A VIRTUAL REWRITING OF THE
PARTICULARITY REQUIREMENTS OF THE WARRANT CLAUSE OR A LITERAL
APPLICATIO OF THAT CLAUSE'S REQUIREMENTS AND OUR CASES CONSTRUING THEM
TO SITUATIONS THEY WERE NEVER DESIGNED TO COVER.  I AM CONVICED THAT
THE FRAMERS OF THE AMENDMENT NEVER INTENDED THIS COURT TO DO EITHER,
AND YET IT SEEMS TO ME CLEAR THAT THE COURT HERE DOES A LITTLE OF
BOTH. 

                                              V. 

ASSUMING, AS THE COURT HOLDS, THAT THE FOURTH AMENDMENT APPLIES TO
EAVESDROPPING AND THAT THE EVIDENCE OBTAINED BY AN EAVESDROP WHICH
VIOLATES THE FOURTH AMENDMENT MUST BE EXCLUDED IN STATE COURTS, I
DISAGREE WITH THE COURT'S HOLDING THAT THE NEW YORK STATUTE ON ITS FACE
FAILS TO COMPORT WITH THE AMENDMENT.  I ALSO AGREE WITH MY BROTHER
WHITE THAT THE STATUTE AS HERE APPLIED DID NOT VIOLATE ANY OF
PETITIONER'S FOURTH AMENDMENT RIGHTS - ASSUMING AGAIN THAT HE HAS SOME
AND THAT HE IS NOT ENTITLED TO A REVERSAL OF HIS CONVICTION MERELY
BECAUSE THE STATUTE MIGHT HAVE BEEN APPLIED IN SOME WAY THAT WOULD NOT
HAVE ACCORDED WITH THE AMENDMENT. 

THIS CASE DEALS ONLY WITH A TRESPASSORY EAVESDROP, AN EAVESDROP
ACCOMPLISHED BY PLACING "BUGGING" DEVICES IN CERTAIN OFFICES. 
SIGNIFICANTLY, THE COURT DOES NOT PURPORT TO DISTURB THE OLMSTEAD
SILVERMAN-GOLDMAN DISTINCTION BETWEEN EAVESDROPS WHICH ARE ACCOMPANIED
BY A PHYSICAL INVASION AND THOSE THAT ARE NOT.  NEITHER DOES THE COURT
PURPORT TO OVERRULE THE HOLDINGS OF ON LEE V. UNITED STATES, 343 U.S.
747, AND LOPEZ V. UNITED STATES, 373 U.S. 427, WHICH EXEMPT FROM THE
AMENDMENT'S REQUIREMENTS THE USE OF AN ELECTRONIC DEVICE TO RECORD, AND
PERHAPS EVEN TRANSMIT, A CONVERSATION TO WHICH THE USER IS A PARTY.  IT
IS THUS CLEAR THAT AT LEAST CERTAIN TYPES OF ELECTRONIC EAVESDROPPING,
UNTIL TODAY, WERE COMPLETELY OUTSIDE THE SCOPE OF THE FOURTH
AMENDMENT.  NEVERTHELESS, NEW YORK HAS MADE IT A CRIME TO ENGAGE IN
ALMOST ANY KIND OF ELECTRONIC EAVESDROPPING, N.Y. PEN.  LAW SEC 738,
AND THE ONLY WAY EAVESDROPPING, EVEN THE KIND THIS COURT HAS HELD
CONSTITUTIONAL, CAN BE ACCOMPLISHED WITH IMMUNITY FROM CRIMINAL
PUNISHMENT IS PURSUANT TO SEC 813-A OF THE CODE OF CRIMINAL PROCEDURE,
N.Y. PEN.  LAW SEC 739.  THE COURT NOW STRIKES DOWN SEC 813-A IN ITS
ENTIRETY, AND THAT MAY WELL HAVE THE RESULT OF MAKING IT IMPOSSIBLE FOR
STATE LAW ENFORCEMENT OFFICERS MERELY TO LISTEN THROUGH A CLOSED DOOR
BY MEANS OF AN INVERTED CONE OR SOME OTHER CRUDE AMPLIFYING DEVICE,
EAVESDROPPING WHICH THIS COURT HAS TO DATE REFUSED TO HOLD VIOLATIVE OF
THE FOURTH AMENDMENT.  CERTAINLY THERE IS NO JUSTIFICATION FOR STRIKING
DOWN COMPLETELY NEW YORK'S STATUTE, COVERING ALL KINDS OF
EAVESDROPPING, MERELY BECAUSE IT FAILS TO CONTAIN THE "STRICT
PRECAUTIONS" WHICH THE COURT DERIVES - OR MORE ACCURATELY FABRICATES -
AS CONDITIONS TO EAVESDROPS COVERED BY THE FOURTH AMENDMENT.  IN
FAILING TO DISTINGUISH BETWEEN TYPES OF EAVESDROPPING AND IN FAILING TO
MAKE CLEAR THAT THE NEW YORK STATUTE IS INVALID ONLY AS APPLIED TO
CERTAIN KINDS OF EAVESDROPPING, THE COURT'S OPINION LEAVES THE DEFINITE
IMPRESSION THAT ALL EAVESDROPPING IS GOVERNED BY THE FOURTH AMENDMENT. 
SUCH A STEP WOULD REQUIRE OVERRULING OF ALMOST EVERY OPINION THIS COURT
HAS EVER WRITTEN ON THE SUBJECT.  INDEED, FROM THE COURT'S
EAVESDROPPING CATALOGUE OF HORRORS - ELECTRONIC RAYS BEAMED AT WALLS,
LAPEL AND CUFF-LINK MICROPHONES, AND OFF-PREMISE PARABOLIC MICROPHONES
IT DOES NOT TAKE TOO MUCH INSIGHT TO SEE THAT THE COURT IS ABOUT READY
TO DO, IF IT HAS NOT TODAY DONE, JUST THAT. 

I AGREE WITH MY BROTHER WHITE THAT INSTEAD OF LOOKING FOR TECHNICAL
DEFECTS IN THE LANGUAGE OF THE NEW YORK STATUTE, THE COURT SHOULD
EXAMINE THE ACTUAL CIRCUMSTANCES OF ITS APPLICATION IN THIS CASE TO
DETERMINE WHETHER PETITIONER'S RIGHTS HAVE HERE BEEN VIOLATED.  THAT TO
ME SEEMS TO BE THE UNAVOIDABLE TASK IN ANY SEARCH AND SEIZURE CASE: WAS
THE PARTICULAR SEARCH AND SEIZURE REASONABLE OR NOT?  WE HAVE JUST THIS
TERM HELD THAT A SEARCH AND SEIZURE WITHOUT A WARRANT AND EVEN WITHOUT
AUTHORIZATION OF STATE LAW, CAN NEVERTHELESS, UNDER ALL THE
CIRCUMSTANCES, BE "REASONABLE" FOR FOURTH AMENDMENT PURPOSES.  COOPER
V. CALIFORNIA, 386 U.S. 58.  I DO NOT SEE WHY THAT COULD NOT BE EQUALLY
TRUE IN THE CASE OF A SEARCH AND SEIZURE WITH A WARRANT AND PURSUANT TO
A STATE LAW, EVEN THOUGH THE STATE LAW IS ITSELF TOO BROAD TO BE
VALID.  CERTAINLY A SEARCH AND SEIZURE MAY COMPLY WITH THE FOURTH
AMENDMENT EVEN IN THE ABSENCE OF AN AUTHORIZING STATUTE WHICH EMBODIES
THE AMENDMENT'S REQUIREMENTS.  OSBORN V. UNITED STATES, 385 U.S. 323,
UPON WHICH THE COURT SO HEAVILY RELIES, IS A GOOD EXAMPLE OF A CASE
WHERE THE COURT SUSTAINED THE TAPE RECORDING OF A CONVERSATION BY
EXAMINING THE PARTICULAR CIRCUMSTANCES SURROUNDING IT, EVEN THOUGH NO
FEDERAL STATUTE PRESCRIBED THE PRECAUTIONS TAKEN BY THE DISTRICT JUDGES
THERE.  HERE NEW YORK HAS GONE MUCH FURTHER THAN THE FEDERAL GOVERNMENT
AND MOST OF THE STATES TO OUTLAW ALL EAVESDROPPING EXCEPT UNDER THE
LIMITED CIRCUMSTANCES OF SEC 813-A, A STATUTE WHICH, AS I SHALL
DEMONSTRATE, CONTAINS MANY MORE SAFEGUARDS THAN THE FOURTH AMENDMENT
ITSELF.  BUT TODAY NEW YORK FARES FAR WORSE THAN THOSE STATES WHICH
HAVE DONE NOTHING TO IMPLEMENT AND SUPPLEMENT THE FOURTH AMENDMENT: IT
MUST RELEASE A CONVICTED CRIMINAL, NOT BECAUSE IT HAS DEPRIVED HIM OF
CONSTITUTIONAL RIGHTS, BUT BECAUSE IT HAS INARTFULLY (ACCORDING TO THE
COURT) TRIED TO GUARANTEE HIM THOSE RIGHTS.  THE NEW YORK STATUTE
ASIDE, THE AFFIDAVITS IN THIS CASE WERE SUFFICIENT TO JUSTIFY A FINDING
OF PROBABLE CAUSE, AND THE EX PARTE EAVESDROP ORDERS IDENTIFIED THE
PERSON WHOSE CONVERSATIONS WERE TO BE OVERHEARD, THE PLACE WHERE THE
EAVESDROPPING WAS TO TAKE PLACE, AND, WHEN READ IN REFERENCE TO THE
SUPPORTING AFFIDAVITS, THE TYPE OF CONVERSATIONS SOUGHT, I.E., THOSE
RELATING TO EXTORTION AND BRIBERY. 

THE COURT CONCLUDES ITS ANALYSIS OF SEC 813-A BY ASSERTING THAT "THE
STATUTE'S BLANKET GRANT OF PERMISSION TO EAVESDROP IS WITHOUT ADEQUATE
JUDICIAL SUPERVISION OR PROTECTIVE PROCEDURES."  EVEN IF THE COURT'S
FEAR THAT "FEW THREATS TO LIBERTY EXIST WHICH ARE GREATER THAN THAT
POSED BY THE USE OF EAVESDROPPING DEVICES" JUSTIFIES IT IN REWRITING
THE FOURTH AMENDMENT TO IMPOSE ON EAVESDROPPERS "STRICT PRECAUTIONS"
WHICH ARE NOT IMPOSED ON OTHER SEARCHERS, IT IS AN UNDESERVED CRITICISM
OF NEW YORK TO CHARACTERIZE ITS STUDIED EFFORTS TO REGULATE
EAVESDROPPING AS RESULTING IN A STATUTE "WITHOUT ADEQUATE JUDICIAL
SUPERVISION OR PROTECTIVE PROCEDURES."  LET US LOOK AT THE NEW YORK
STATUTE.  IT PROVIDES: 

(1)  NEW YORK JUDGES ARE TO ISSUE AUTHORIZATIONS.  (THE FOURTH
AMENDMENT DOES NOT COMMAND ANY SUCH DESIRABLE JUDICIAL PARTICIPATION.) 

(2)  THE JUDGE MUST HAVE AN "OATH" FROM NEW YORK OFFICIALS.  (THE
FOURTH AMENDMENT DOES NOT SPECIFY WHO MUST EXECUTE THE OATH IT
REQUIRES.) 

(3)  THE OATH MUST STATE "REASONABLE GROUND TO BELIEVE THAT EVIDENCE
OF CRIME MAY BE THUS OBTAINED," AND THE JUDGE MAY EXAMINE THE AFFIANT
AND ANY OTHER WITNESSES TO MAKE CERTAIN THAT THIS IS THE CASE.  (THE
FOURTH AMENDMENT REQUIRES A SHOWING OF "PROBABLE CAUSE," BUT THE COURT
DOES NOT DISPUTE NEW YORK'S ASSERTION THAT "REASONABLE GROUND" AND
"PROBABLE CAUSE" ARE THE SAME.  THE AMENDMENT DOES NOT SPECIFY, AS THE
NEW YORK STATUTE DOES, A PROCEDURE BY WHICH THE JUDGE MAY "SATISFY
HIMSELF" OF THE EXISTENCE OF PROBABLE CAUSE.) 

(4)  THE "PERSON OR PERSONS WHOSE COMMUNICATIONS, CONVERSATIONS OR
DISCUSSIONS ARE TO BE OVERHEARD OR RECORDED AND THE PURPOSE THEREOF"
MUST BE PARTICULARLY DESCRIBED.  (IN THE CASE OF CONVERSATION IT WOULD
SEEM IMPOSSIBLE TO REQUIRE A MORE PARTICULAR DESCRIPTION THAN THIS. 
TANGIBLE THINGS IN EXISTENCE AT THE TIME A WARRANT FOR THEIR SEIZURE IS
ISSUED COULD BE MORE PARTICULARLY DESCRIBED, BUT THE ONLY WAY TO
DESCRIBE FUTURE CONVERSATIONS IS BY A DESCRIPTION OF THE ANTICIPATED
SUBJECT MATTER OF THE CONVERSATION.  WHEN THE "PURPOSE" OF THE
EAVESDROPPING IS STATED, THE SUBJECT OF THE CONVERSATION SOUGHT TO BE
SEIZED IS READILY RECOGNIZABLE.  NOTHING MORE WAS REQUIRED IN OSBORN;
NOTHING MORE SHOULD BE REQUIRED HERE.) 

(5)  THE EAVESDROP ORDER MUST BE LIMITED IN TIME TO NO MORE THAN TWO
MONTHS.  (THE FOURTH AMENDMENT MERELY REQUIRES THAT THE PLACE TO BE
SEARCHED BE DESCRIBED.  IT DOES NOT REQUIRE THE WARRANT TO LIMIT THE
TIME OF A SEARCH, AND IT IMPOSES NO LIMIT, OTHER THAN THAT OF
REASONABLENESS, ON THE DIMENSIONS OF THE PLACE TO BE SEARCHED.) 

THUS, IT SEEMS IMPOSSIBLE FOR THE COURT TO CONDEMN THIS STATUTE ON
THE GROUND THAT IT LACKS "ADEQUATE JUDICIAL SUPERVISION OR PROTECTIVE
PROCEDURES."  RATHER, THE ONLY WAY THE COURT CAN INVALIDATE IT IS TO
FIND IT LACKING IN SOME OF THE SAFEGUARDS WHICH THE COURT TODAY
FASHIONS WITHOUT ANY REFERENCE TO THE LANGUAGE OF THE FOURTH AMENDMENT
WHATSOEVER.  IN FACT, FROM THE DEFICIENCIES THE COURT FINDS IN THE NEW
YORK STATUTE, IT SEEMS THAT THE COURT WOULD BE COMPELLED TO STRIKE DOWN
A STATE STATUTE WHICH MERELY TRACKED VERBATIM THE LANGUAGE OF THE
FOURTH AMENDMENT ITSELF.  FIRST, THE COURT THINKS THE AFFIDAVITS OR THE
ORDERS MUST PARTICULARIZE THE CRIME BEING COMMITTED.  THE FOURTH
AMENDMENT'S PARTICULARITY REQUIREMENT RELATES TO THE PLACE SEARCHED AND
THE THING SEIZED, NOT TO THE CRIME BEING COMMITTED.  SECOND, THE COURT
HOLDS THAT TWO MONTHS FOR AN EAVESDROP ORDER TO BE OUTSTANDING IS TOO
LONG.  THERE ARE, HOWEVER, NO TIME LIMITS OF ANY KIND IN THE FOURTH
AMENDMENT OTHER THAN THE NOTION THAT A SEARCH SHOULD NOT LAST LONGER
THAN REASONABLY NECESSARY TO SEARCH THE PLACE DESCRIBED IN THE WARRANT,
AND THE EXTENT OF THAT PLACE MAY ALSO BE LIMITED BY THE CONCEPT OF
REASONABLENESS.  THE COURT DOES NOT EXPLAIN WHY TWO MONTHS, REGARDLESS
OF THE CIRCUMSTANCES, IS PER SE AN UNREASONABLE LENGTH OF TIME TO
ACCOMPLISH A VERBAL SEARCH.  THIRD, THE COURT FINDS THE STATUTE
DEFICIENT IN NOT PROVIDING FOR A TERMINATION OF THE EAVESDROP ONCE THE
OBJECT IS OBTAINED AND IN NOT PROVIDING FOR A RETURN OF THE WARRANT AT
THAT TIME.  WHERE IN THE FOURTH AMENDMENT DOES THE COURT THINK IT
POSSIBLE TO FIND THESE REQUIREMENTS?  FINALLY, THE COURT MAKES THE
FANTASTIC SUGGESTION THAT THE EAVESDROPPER MUST GIVE NOTICE TO THE
PERSON WHOSE CONVERSATION IS TO BE OVERHEARD OR THAT THE EAVESDROPPER
MUST SHOW "EXIGENT CIRCUMSTANCES" BEFORE HE CAN PERFORM HIS EAVESDROP
WITHOUT CONSENT.  NOW, IF NEVER BEFORE, THE COURT'S PURPOSE IS CLEAR:
IT IS DETERMINED TO BAN ALL EAVESDROPPING.  AS THE COURT RECOGNIZES,
EAVESDROPPING "NECESSARILY  ...  DEPENDS ON SECRECY."  SINCE SECRECY IS
AN ESSENTIAL, INDEED A DEFINITIONAL, ELEMENT OF EAVESDROPPING, WHEN THE
COURT SAYS THERE SHALL BE NO EAVESDROPPING WITHOUT NOTICE, THE COURT
MEANS TO INFORM THE NATION THERE SHALL BE NO EAVESDROPPING - PERIOD. 

IT SHOULD NOW BE CLEAR THAT IN ORDER TO STRIKE DOWN THE NEW YORK LAW
THE COURT HAS BEEN COMPELLED TO REWRITE COMPLETELY THE FOURTH
AMENDMENT.  BY SUBSTITUTING THE WORD "PRIVACY" FOR THE LANGUAGE OF THE
FIRST CLAUSE OF THE AMENDMENT, THE COURT EXPANDS THE SCOPE OF THE
AMENDMENT TO INCLUDE ORAL CONVERSATIONS; THEN BY APPLYING THE LITERAL
PARTICULARITY REQUIREMENTS OF THE SECOND CLAUSE WITHOUT ADJUSTMENT FOR
THE COURT'S EXPANSION OF THE AMENDMENT'S SCOPE, THE COURT MAKES
CONSTITUTIONAL EAVESDROPPING IMPROBABLE; AND FINALLY, BY INVENTING
REQUIREMENTS FOUND IN NEITHER CLAUSE - REQUIREMENTS WITH WHICH NEITHER
NEW YORK NOR ANY OTHER STATE CAN POSSIBLY COMPLY - THE COURT MAKES SUCH
EAVESDROPPING IMPOSSIBLE.  IF THE FOURTH AMENDMENT DOES NOT BAN ALL
SEARCHES AND SEIZURES, I DO NOT SEE HOW IT CAN POSSIBLY BAN ALL
EAVESDROPS. 

             VI. 

AS I SEE IT, THE DIFFERENCES BETWEEN THE COURT AND ME IN THIS CASE
REST ON DIFFERENT BASIC BELIEFS AS TO OUR DUTY IN INTERPRETING THE
CONSTITUTION.  THIS BASIC CHARTER OF OUR GOVERNMENT WAS WRITTEN IN FEW
WORDS TO DEFINE GOVERNMENTAL POWERS GENERALLY ON THE ONE HAND AND TO
DEFINE GOVERNMENTAL LIMITATIONS ON THE OTHER.  I BELIEVE IT IS THE
COURT'S DUTY TO INTERPRET THESE GRANTS AND LIMITATIONS SO AS TO CARRY
OUT AS NEARLY AS POSSIBLE THE ORIGINAL INTENT OF THE FRAMERS.  BUT I DO
NOT BELIEVE THAT IT IS OUR DUTY TO GO FURTHER THAN THE FRAMERS DID ON
THE THEORY THAT THE JUDGES ARE CHARGED WITH RESPONSIBILITY FOR KEEPING
THE CONSTITUTION "UP TO DATE."  OF COURSE, WHERE THE CONSTITUTION HAS
STATED A BROAD PURPOSE TO BE ACCOMPLISHED UNDER ANY CIRCUMSTANCES, WE
MUST CONSIDER THAT MODERN SCIENCE HAS MADE IT NECESSARY TO USE NEW
MEANS IN ACCOMPLISHING THE FRAMERS' GOAL.  A GOOD ILLUSTRATION OF THIS
IS THE COMMERCE CLAUSE WHICH GIVES CONGRESS POWER TO REGULATE COMMERCE
BETWEEN THE STATES HOWEVER IT MAY BE CARRIED ON, WHETHER BY OX WAGONS
OR JET PLANES.  BUT THE FOURTH AMENDMENT GIVES NO HINT THAT IT WAS
DESIGNED TO PUT AN END TO THE AGE-OLD PRACTICE OF USING EAVESDROPPING
TO COMBAT CRIME.  IF CHANGES IN THAT AMENDMENT ARE NECESSARY, DUE TO
CONTEMPORARY HUMAN REACTION TO TECHNOLOGICAL ADVANCES, I THINK THOSE
CHANGES SHOULD BE ACCOMPLISHED BY AMENDMENTS, AS THE CONSTITUTION
ITSELF PROVIDES. 

THEN AGAIN, A CONSTITUTION LIKE OURS IS NOT DESIGNED TO BE A FULL
CODE OF LAWS AS SOME OF OUR STATES AND SOME FOREIGN COUNTRIES HAVE MADE
THEIRS.  AND IF CONSTITUTIONAL PROVISIONS REQUIRE NEW RULES AND
SANCTIONS TO MAKE THEM AS FULLY EFFECTIVE AS MIGHT BE DESIRED, MY
BELIEF IS THAT CALLS FOR ACTION, NOT BY US, BUT BY CONGRESS OR STATE
LEGISLATURES, VESTED WITH POWERS TO CHOOSE BETWEEN CONFLICTING
POLICIES.  HERE, FOR ILLUSTRATION, THERE ARE WIDELY DIVERGING VIEWS
ABOUT EAVESDROPPING.   SOME WOULD MAKE IT A CRIME, BARRING IT
ABSOLUTELY AND IN ALL EVENTS; OTHERS WOULD BAR IT EXCEPT IN SEARCHING
FOR EVIDENCE IN THE FIELD OF "NATIONAL SECURITY," WHATEVER THAT MEANS;
STILL OTHERS WOULD PASS NO LAW EITHER AUTHORIZING OR FORBIDDING IT,
LEAVING IT TO FOLLOW ITS NATURAL COURSE.  THIS IS PLAINLY THE TYPE OF
QUESTION THAT CAN AND SHOULD BE DECIDED BY LEGISLATIVE BODIES, UNLESS
SOME CONSTITUTIONAL PROVISION EXPRESSLY GOVERNS THE MATTER, JUST AS THE
FIFTH AMENDMENT EXPRESSLY FORBIDS ENFORCED SELF-INCRIMINATION.  THERE
IS NO SUCH EXPRESS PROHIBITION IN THE FOURTH AMENDMENT NOR CAN ONE BE
IMPLIED.  THE FOURTH AMENDMENT CAN ONLY BE MADE TO PROHIBIT OR TO
REGULATE EAVESDROPPING BY TAKING AWAY SOME OF ITS WORDS AND BY ADDING
OTHERS. 

BOTH THE STATES AND THE NATIONAL GOVERNMENT ARE AT PRESENT CONFRONTED
WITH A CRIME PROBLEM THAT THREATENS THE PEACE, ORDER, AND TRANQUILITY
OF THE PEOPLE.  THERE ARE, AS I HAVE POINTED OUT, SOME CONSTITUTIONAL
COMMANDS THAT LEAVE NO ROOM FOR DOUBT - CERTAIN PROCEDURES MUST BE
FOLLOWED BY COURTS REGARDLESS OF HOW MUCH MORE DIFFICULT THEY MAKE IT
TO CONVICT AND PUNISH FOR CRIME.  THESE COMMANDS WE SHOULD ENFORCE
FIRMLY AND TO THE LETTER.  BUT MY OBJECTION TO WHAT THE COURT DOES
TODAY IS THE PICKING OUT OF A BROAD GENERAL PROVISION AGAINST
UNREASONABLE SEARCHES AND SEIZURES AND THE ERECTING OUT OF IT A
CONSTITUTIONAL OBSTACLE AGAINST ELECTRONIC EAVESDROPPING THAT MAKES IT
IMPOSSIBLE FOR LAWMAKERS TO OVERCOME.  HONEST MEN MAY RIGHTLY DIFFER ON
THE POTENTIAL DANGERS OR BENEFITS INHERENT IN ELECTRONIC EAVESDROPPING
AND WIRETAPPING.  SEE LOPEZ V. UNITED STATES, SUPRA.  BUT THAT IS THE
VERY REASON THAT LEGISLATURES, LIKE NEW YORK'S, SHOULD BE LEFT FREE TO
PASS LAWS ABOUT THE SUBJECT, RATHER THAN BE TOLD THAT THE CONSTITUTION
FORBIDS IT ON GROUNDS NO MORE FORCEFUL THAN THE COURT HAS BEEN ABLE TO
MUSTER IN THIS CASE. 

FN1  MR. JUSTICE HOLMES DISSENTING IN OLMSTEAD V. UNITED STATES, 277
U.S. 438, 470. 

FN2  WEEKS V. UNITED STATES, 232 U.S. 383.  COMPARE ADAMS V. NEW
YORK, 192 U.S. 585. 

FN3  I CONCURRED IN MAPP BECAUSE "THE CLOSE INTERRELATIONSHIP BETWEEN
THE FOURTH AND FIFTH AMENDMENTS," 367 U.S., AT 662, AS THEY APPLIED TO
THE FACTS OF THAT CASE REQUIRED THE EXCLUSION THERE OF THE
UNCONSTITUTIONALLY SEIZED EVIDENCE. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT IN RECENT YEARS HAS MORE AND MORE TAKEN TO ITSELF SOLE
RESPONSIBILITY FOR SETTING THE PATTERN OF CRIMINAL LAW ENFORCEMENT
THROUGHOUT THE COUNTRY.  TIME HONORED DISTINCTIONS BETWEEN THE
CONSTITUTIONAL PROTECTIONS AFFORDED AGAINST FEDERAL AUTHORITY BY THE
BILL OF RIGHTS AND THOSE PROVIDED AGAINST STATE ACTION BY THE
FOURTEENTH AMENDMENT HAVE BEEN OBLITERATED, THUS INCREASINGLY
SUBJECTING STATE CRIMINAL LAW ENFORCEMENT POLICIES TO OVERSIGHT BY THIS
COURT.  SEE, E.G., MAPP V. OHIO, 367 U.S. 643; KER V. CALIFORNIA, 374
U.S. 23; MALLOY V. HOGAN, 378 U.S. 1; MURPHY V. WATERFRONT COMMISSION,
378 U.S. 52.  NEWLY CONTRIVED CONSTITUTIONAL RIGHTS HAVE BEEN
ESTABLISHED WITHOUT ANY APPARENT CONCERN FOR THE EMPIRICAL PROCESS THAT
GOES WITH LEGISLATIVE REFORM.  SEE, E.G., MIRANDA V. ARIZONA, 384 U.S.
436.  AND OVERLYING THE PARTICULAR DECISIONS TO WHICH THIS COURSE HAS
GIVEN RISE IS THE FACT THAT, SHORT OF FUTURE ACTION BY THIS COURT,
THEIR IMPACT CAN ONLY BE UNDONE OR MODIFIED BY THE SLOW AND UNCERTAIN
PROCESS OF CONSTITUTIONAL AMENDMENT. 

TODAY'S DECISION IS IN THIS MOLD.  DESPITE THE FACT THAT THE USE OF
ELECTRONIC EAVESDROPPING DEVICES AS INSTRUMENTS OF CRIMINAL LAW
ENFORCEMENT IS CURRENTLY BEING COMPREHENSIVELY ADDRESSED BY THE
CONGRESS AND VARIOUS OTHER BODIES IN THE COUNTRY, THE COURT HAS CHOSEN,
QUITE UNNECESSARILY, TO DECIDE THIS CASE IN A MANNER WHICH WILL
SERIOUSLY RESTRICT, IF NOT ENTIRELY THWART, SUCH EFFORTS, AND WILL
FREEZE PROGRESS IN THIS FIELD, EXCEPT AS THE COURT MAY ITSELF ACT OR A
CONSTITUTIONAL AMENDMENT MAY SET THINGS RIGHT. 

IN MY OPINION WHAT THE COURT IS DOING IS VERY WRONG, AND I MUST
RESPECTFULLY DISSENT. 

                                      I. 

I AM, AT THE OUTSET, DIVIDED FROM THE MAJORITY BY THE WAY IN WHICH IT
HAS DETERMINED TO APPROACH THE CASE.  WITHOUT PAUSING TO EXPLAIN OR TO
JUSTIFY ITS REASONING, IT HAS UNDERTAKEN BOTH TO CIRCUMVENT RULES WHICH
HAVE HITHERTO GOVERNED THE PRESENTATION OF CONSTITUTIONAL ISSUES TO
THIS COURT, AND TO DISREGARD THE CONSTRUCTION CONSISTENTLY ATTRIBUTED
TO A STATE STATUTE BY THE STATE'S OWN COURTS.  EACH OF THESE OMISSIONS
IS, IN MY OPINION, MOST UNFORTUNATE. 

THE COURT DECLARES, WITHOUT FURTHER EXPLANATION, THAT SINCE
PETITIONER WAS "AFFECTED" BY SEC 813-A, HE MAY CHALLENGE ITS VALIDITY
ON ITS FACE.  NOTHING IN THE CASES OF THIS COURT SUPPORTS THIS WHOLLY
AMBIGUOUS STANDARD; THE COURT UNTIL NOW HAS, IN RECOGNITION OF THE
INTENSE DIFFICULTIES SO WIDE A RULE MIGHT CREATE FOR THE ORDERLY
ADJUDICATION OF CONSTITUTIONAL ISSUES, LIMITED THE SITUATIONS IN WHICH
STATE STATUTES MAY BE CHALLENGED ON THEIR FACE.  THERE IS NO REASON
HERE, APART FROM THE MOMENTARY CONVENIENCES OF THIS CASE, TO ABANDON
THOSE LIMITATIONS: NONE OF THE CIRCUMSTANCES WHICH HAVE BEFORE PROPERLY
BEEN THOUGHT TO WARRANT CHALLENGES OF STATUTES ON THEIR FACE IS
PRESENT, CF. THORNHILL V. ALABAMA, 310 U.S. 88, 98, AND NO
JUSTIFICATION FOR ADDITIONAL EXCEPTIONS HAS BEEN OFFERED.  SEE
GENERALLY UNITED STATES V. NATIONAL DAIRY PRODUCTS CORP., 372 U.S. 29,
36; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 521 (DISSENTING
OPINION).  PETITIONER'S RIGHTS, AND THOSE OF OTHERS SIMILARLY SITUATED,
CAN BE FULLY VINDICATED THROUGH THE ADJUDICATION OF THE CONSISTENCY
WITH THE FOURTEENTH AMENDMENT OF EACH EAVESDROPPING ORDER. 

IF THE STATUTE IS TO BE ASSESSED ON ITS FACE, THE COURT SHOULD AT
LEAST ADHERE TO THE PRINCIPLE THAT, FOR PURPOSES OF ASSESSING THE
VALIDITY UNDER THE CONSTITUTION OF A STATE STATUTE, THE CONSTRUCTION
GIVEN THE STATUTE BY THE STATE'S COURTS IS CONCLUSIVE OF ITS SCOPE AND
MEANING.  FOX V. WASHINGTON, 236 U.S. 273; WINTERS V. NEW YORK, 333
U.S. 507; POULOS V. NEW HAMPSHIRE, 345 U.S. 395.  THIS PRINCIPLE IS
ULTIMATELY A CONSEQUENCE OF THE DIFFERENCES IN FUNCTION OF THE STATE
AND FEDERAL JUDICIAL SYSTEMS.  THE STRENGTH WITH WHICH IT HAS HITHERTO
BEEN HELD MAY BE ESTIMATED IN PART BY THE FREQUENCY WITH WHICH THE
COURT HAS IN THE PAST DECLINED TO ADJUDICATE ISSUES, OFTEN OF GREAT
PRACTICAL AND CONSTITUTIONAL IMPORTANCE, UNTIL THE STATE COURTS "HAVE
BEEN AFFORDED A REASONABLE OPPORTUNITY TO PASS UPON THEM."  HARRISON V.
NAACP, 360 U.S. 167, 176.  SEE E.G., RAILROAD COMM'N V. PULLMAN CO.,
312 U.S. 496; SPECTOR MOTOR SERVICE, INC. V. MCLAUGHLIN, 323 U.S. 101;
SHIPMAN V. DUPRE, 339 U.S. 321; ALBERTSON V. MILLARD, 345 U.S. 242;
GOVERNMENT EMPLOYEES V. WINDSOR, 353 U.S. 364. 

THE COURT TODAY ENTIRELY DISREGARDS THIS PRINCIPLE.  IN ITS HASTE TO
GIVE FORCE TO ITS DISTASTE FOR EAVESDROPPING, IT HAS APPARENTLY
RESOLVED THAT NO ATTENTION NEED BE GIVEN TO THE CONSTRUCTION OF SEC 813
A ADOPTED BY THE STATE COURTS.  APART FROM A BRIEF AND PARTIAL
ACKNOWLEDGMENT, SPURRED BY PETITIONER'S CONCESSION, THAT THE STATE
CASES MIGHT WARRANT EXPLORATION, THE COURT HAS BEEN CONTENT SIMPLY TO
COMPARE THE TERMS OF THE STATUTE WITH THE PROVISIONS OF THE FOURTH
AMENDMENT; UPON DISCOVERY THAT THEIR WORDS DIFFER, IT HAS CONCLUDED
THAT THE STATUTE IS CONSTITUTIONALLY IMPERMISSIBLE.  IN SHARP CONTRAST,
WHEN CONFRONTED BY FOURTH AMENDMENT ISSUES UNDER A FEDERAL STATUTE
WHICH DID NOT, AND DOES NOT NOW, REPRODUCE IPSISSIMIS VERBIS THE FOURTH
AMENDMENT, 26 U.S.C. SEC 7607 (2), THE COURT READILY CONCLUDED, UPON
THE AUTHORITY OF CASES IN THE COURTS OF APPEALS, THAT THE STATUTE
EFFECTIVELY EMBODIED THE AMENDMENT'S REQUIREMENTS.  DRAPER V. UNITED
STATES, 358 U.S. 307, 310 N. AND THE COURT WITHOUT THE ASSISTANCE EVEN
OF STATE AUTHORITIES, REACHED AN IDENTICAL CONCLUSION AS TO A SIMILAR
STATE STATUTE IN KER V. CALIFORNIA, 374 U.S. 23, 36 N. THE
CIRCUMSTANCES OF THE PRESENT CASE DO NOT COME EVEN WITHIN THE NARROW
EXCEPTIONS TO THE RULE THAT THE COURT ORDINARILY AWAITS A STATE COURT'S
CONSTRUCTION BEFORE ADJUDICATING THE VALIDITY OF A STATE STATUTE.  CF.
DOMBROWSKI V. PFISTER, 380 U.S. 479; BAGGETT V. BULLITT, 377 U.S. 360. 
THE COURT HAS SHOWN NO JUSTIFICATION FOR ITS DISREGARD OF EXISTING AND
PERTINENT STATE AUTHORITIES. 

                                     II. 

THE COURT'S PRECIPITATE NEGLECT OF THE NEW YORK CASES IS THE MORE
OBVIOUSLY REGRETTABLE WHEN THEIR TERMS ARE EXAMINED, FOR THEY MAKE
QUITE PLAIN THAT THE STATE COURTS HAVE FULLY RECOGNIZED THE
APPLICABILITY OF THE RELEVANT FEDERAL CONSTITUTIONAL REQUIREMENTS, AND
THAT THEY HAVE CONSTRUED SEC 813-A IN CONFORMITY WITH THOSE
REQUIREMENTS.  OPINIONS OF THE STATE COURTS REPEATEDLY SUGGEST THAT THE
"REASONABLE GROUNDS" PRESCRIBED BY THE SECTION ARE UNDERSTOOD TO BE
SYNONYMOUS WITH THE "PROBABLE CAUSE" DEMANDED BY THE FOURTH AND
FOURTEENTH AMENDMENTS.  PEOPLE V. COHEN, 42 MISC. 2D 403, 404, 248
N.Y.S.2D 339, 341; PEOPLE V. GROSSMAN, 45 MISC.  2D 557, 568, 257
N.Y.S.2D 266, 277; PEOPLE V. BESHANY, 43 MISC. 2D 521, 525, 252
N.Y.S.2D 110, 115.  THE TERMS ARE FREQUENTLY EMPLOYED INTERCHANGEABLY,
WITHOUT THE LEAST SUGGESTION OF ANY SHADINGS OF MEANING.  SEE, E.G.,
PEOPLE V. ROGERS, 46 MISC. 2D 860, 863, 261 N.Y.S.2D 152, 155; PEOPLE
V. MCDONOUGH, 51 MISC. 2D 1065, 1069, 275 N.Y.S.2D 8, 12.  FURTHER, A
LOWER STATE COURT HAS STATED QUITE SPECIFICALLY THAT "THE SAME
STANDARDS, AT THE LEAST, MUST BE APPLIED" TO ORDERS UNDER SEC 813-A AS
TO WARRANTS FOR THE SEARCH AND SEIZURE OF TANGIBLE OBJECTS.  PEOPLE V.
COHEN, SUPRA, AT 407-408, 248 N.Y.S.2D, AT 344.  INDEED, THE COURT WENT
ON TO SAY THAT THE STANDARDS "SHOULD BE MUCH MORE STRINGENT THAN THOSE
APPLIED TO SEARCH WARRANTS."  ID., AT 408, 248 N.Y.S.2D, AT 344. 
COMPARE SIEGEL V. PEOPLE, 16 N.Y.2D 330, 332, 213 N.E.2D 682, 683.  THE
COURT IN COHEN WAS CONCERNED WITH A WIRETAP ORDER, BUT THE ORDER HAD
BEEN ISSUED UNDER SEC 813-A, AND THERE WAS NO SUGGESTION THERE OR
ELSEWHERE THAT EAVESDROPPING ORDERS SHOULD BE DIFFERENTLY TREATED.  NEW
YORK'S STATUTORY REQUIREMENTS FOR SEARCH WARRANTS, IT MUST BE
EMPHASIZED, ARE VIRTUALLY A LITERAL REITERATION OF THE TERMS OF THE
FOURTH AMENDMENT.  N.Y. CODE CRIM. PROC. SEC 793.  IF THE COURT WISHED
A PRECISE INVOCATION OF THE TERMS OF THE FOURTH AMENDMENT, IT HAD ONLY
TO EXAMINE THE PERTINENT STATE AUTHORITIES.    THERE IS STILL
ADDITIONAL EVIDENCE THAT THE STATE FULLY RECOGNIZES THE APPLICABILITY
TO EAVESDROPPING ORDERS OF THE FOURTH AMENDMENT'S CONSTRAINTS.  THE
LEGISLATURE OF NEW YORK ADOPTED IN 1962 COMPREHENSIVE RESTRICTIONS UPON
THE USE OF EAVESDROPPED INFORMATION OBTAINED WITHOUT A PRIOR SEC 813-A
ORDER.  N.Y. CIV. PRAC.  SEC 4506.  THE RESTRICTIONS WERE EXPECTED AND
INTENDED TO GIVE FULL FORCE TO THE MANDATE OF THE OPINION FOR THIS
COURT IN MAPP V. OHIO, 367 U.S. 643.  SEE 2 MCKINNEY'S SESSION LAWS OF
NEW YORK 3677 (1962); NEW YORK STATE LEGISLATIVE ANNUAL 16 (1962).  IF
IT WAS THEN SUPPOSED THAT INFORMATION OBTAINED WITHOUT A PRIOR SEC 813
A ORDER MUST, AS A CONSEQUENCE OF MAPP, BE EXCLUDED FROM EVIDENCE, BUT
THAT EVIDENCE OBTAINED WITH A SEC 813-A ORDER NEED NOT BE EXCLUDED, IT
CAN ONLY HAVE BEEN ASSUMED THAT THE REQUIREMENTS APPLICABLE TO THE
ISSUANCE OF SEC 813-A ORDERS WERE ENTIRELY CONSISTENT WITH THE DEMANDS
OF THE FOURTH AND FOURTEENTH AMENDMENTS.  THE LEGISLATURE RECOGNIZED
THE "HIATUS" IN ITS LAW CREATED BY MAPP, AND WISHED TO SET ITS OWN
"HOUSE ...  IN ORDER."  NEW YORK STATE LEGISLATIVE ANNUAL, SUPRA, AT
18.  IT PLAINLY UNDERSTOOD THAT THE AMENDMENTS WERE APPLICABLE, AND
INTENDED TO ADHERE FULLY TO THEIR REQUIREMENTS. 

NEW YORK'S PERMISSIVE EAVESDROPPING STATUTE MUST, FOR PURPOSES OF
ASSESSING ITS CONSTITUTIONAL VALIDITY ON ITS FACE BE READ "AS THOUGH"
THIS JUDICIAL GLOSS HAD BEEN "WRITTEN INTO" IT.  POULOS V. NEW
HAMPSHIRE, SUPRA, AT 402.  I CAN ONLY CONCLUDE THAT, SO READ, THE
STATUTE INCORPORATE AS LIMITATIONS UPON ITS EMPLOYMENT THE REQUIREMENTS
OF THE FOURTH AMENDMENT. 

                          III. 

THE COURT HAS FREQUENTLY OBSERVED THAT THE FOURTH AMENDMENT'S TWO
CLAUSES IMPOSE SEPARATE, ALTHOUGH RELATED, LIMITATIONS UPON SEARCHES
AND SEIZURES; THE FIRST "IS GENERAL AND FORBIDS EVERY SEARCH THAT IS
UNREASONABLE," GO-BART CO. V. UNITED STATES, 282 U.S. 344, 357; THE
SECOND PLACES A NUMBER OF SPECIFIC CONSTRAINTS UPON THE ISSUANCE AND
CHARACTER OF WARRANTS.  IT WOULD BE INAPPROPRIATE AND FRUITLESS TO
UNDERTAKE NOW TO SET THE PERIMETERS OF "REASONABLENESS" WITH RESPECT TO
EAVESDROPPING ORDERS IN GENERAL; ANY LIMITATIONS, FOR EXAMPLE,
NECESSARY UPON THE PERIOD OVER WHICH EAVESDROPPING MAY BE CONDUCTED, OR
UPON THE USE OF INTERCEPTED INFORMATION UNCONNECTED WITH THE OFFENSES
FOR WHICH THE EAVESDROPPING ORDER WAS FIRST ISSUED, SHOULD PROPERLY BE
DEVELOPED ONLY THROUGH A CASE-BY-CASE EXAMINATION OF THE PERTINENT
QUESTIONS.  IT SUFFICES HERE TO EMPHASIZE THAT, IN MY VIEW, ELECTRONIC
EAVESDROPPING, AS SUCH OR AS IT IS PERMITTED BY THIS STATUTE, IS NOT AN
UNREASONABLE SEARCH AND SEIZURE. 

AT THE LEAST, REASONABLENESS SURELY IMPLIES THAT THIS COURT MUST NOT
CONSTRAIN IN ANY GRUDGING FASHION THE DEVELOPMENT OF PROCEDURES,
CONSISTENT WITH THE AMENDMENT'S ESSENTIAL PURPOSES, BY WHICH METHODS OF
SEARCH AND SEIZURE UNKNOWN IN 1789 MAY BE APPROPRIATELY CONTROLLED.  IT
IS INSTEAD OBLIGED TO PERMIT, AND INDEED EVEN TO ENCOURAGE, SERIOUS
EFFORTS TO APPROACH CONSTRUCTIVELY THE DIFFICULT PROBLEMS CREATED BY
ELECTRONIC EAVESDROPPING.  IN THIS SITUATION, THE COURT SHOULD
RECOGNIZE AND GIVE WEIGHT TO THE STATE'S CAREFUL EFFORTS TO RESTRICT
THE EXCESSIVE OR UNAUTHORIZED EMPLOYMENT OF THESE DEVICES.  NEW YORK
HAS PROVIDED THAT NO USE MAY BE MADE OF EAVESDROPPING DEVICES WITHOUT A
PRIOR COURT ORDER, AND THAT SUCH AN ORDER IS OBTAINABLE ONLY UPON THE
APPLICATION OF STATE PROSECUTORIAL AUTHORITIES OR OF POLICEMEN OF
SUITABLE SENIORITY.  N.Y. CODE CRIM. PROC. SEC 813-A. EAVESDROPPING
CONDUCTED WITHOUT AN ORDER IS PUNISHABLE BY IMPRISONMENT FOR AS MUCH AS
TWO YEARS.  N.Y. PEN.  LAW SECS 738, 740.  INFORMATION OBTAINED THROUGH
IMPERMISSIBLE EAVESDROPPING MAY NOT BE EMPLOYED FOR ANY PURPOSE IN ANY
CIVIL OR CRIMINAL ACTION, PROCEEDING, OR HEARING, EXCEPT IN THE
CRIMINAL PROSECUTION OF THE UNAUTHORIZED EAVESDROPPER HIMSELF.  N.Y.
CIV. PRAC.  SEC 4506.  THESE RESTRICTIONS ARE CALCULATED TO PREVENT THE
"UNBRIDLED," (FN1) "UNAUTHORIZED," (FN2) AND "INDISCRIMINATE" (FN3)
ELECTRONIC SEARCHES AND SEIZURES WHICH MEMBERS OF THIS COURT HAVE
FREQUENTLY CONDEMNED.  SURELY THE STATE'S EFFORTS WARRANT AT LEAST A
CAREFUL, AND EVEN SYMPATHETIC, EXAMINATION OF THE FASHION IN WHICH THE
STATE COURTS HAVE CONSTRUED THESE PROVISIONS, AND IN WHICH THEY HAVE
APPLIED THEM TO THE SITUATION BEFORE US.  I CANNOT, IN ANY EVENT, AGREE
THAT THE FOURTH AMENDMENT CAN PROPERLY BE TAKEN AS A ROADBLOCK TO THE
USE, WITHIN APPROPRIATE LIMITS, OF LAW ENFORCEMENT TECHNIQUES NECESSARY
TO KEEP ABREAST OF MODERN-DAY CRIMINAL ACTIVITY.  THE IMPORTANCE OF
THESE DEVICES AS A TOOL OF EFFECTIVE LAW ENFORCEMENT IS IMPRESSIVELY
ATTESTED BY THE DATA MARSHALLED IN MY BROTHER WHITE'S DISSENTING
OPINION.  POST, P. 107. 

                                  IV. 

I TURN TO WHAT PROPERLY IS THE CENTRAL ISSUE IN THIS CASE: THE
VALIDITY UNDER THE WARRANTS CLAUSE OF THE FOURTH AMENDMENT OF THE
EAVESDROPPING ORDER UNDER WHICH THE RECORDINGS EMPLOYED AT PETITIONER'S
TRIAL WERE OBTAINED.  IT IS ESSENTIAL FIRST TO SET OUT CERTAIN OF THE
PERTINENT FACTS. 

THE DISPUTED RECORDINGS WERE MADE UNDER THE AUTHORITITY OF A SEC 813
A ORDER, DATED JUNE 12, 1962, PERMITTING THE INSTALLATION OF AN
EAVESDROPPING DEVICE IN THE BUSINESS OFFICE OF ONE HARRY STEINMAN; THE
ORDER, IN TURN, WAS, SO FAR AS THIS RECORD SHOWS, ISSUED SOLELY UPON
THE BASIS OF INFORMATION CONTAINED IN AFFIDAVITS SUBMITTED TO THE
ISSUING JUDGE BY TWO ASSISTANT DISTRICT ATTORNEYS.  THE FIRST
AFFIDAVIT, SIGNED BY ASSISTANT DISTRICT ATTORNEY GOLDSTEIN, INDICATED
THAT THE RACKETS BUREAU OF THE DISTRICT ATTORNEY'S OFFICE OF NEW YORK
COUNTY WAS THEN CONDUCTING AN INVESTIGATION OF ALLEGED CORRUPTION IN
THE STATE LIQUOR AUTHORITY, AND THAT THE BUREAU HAD RECEIVED
INFORMATION THAT PERSONS DESIRING TO OBTAIN OR RETAIN LIQUOR LICENSES
WERE OBLIGED TO PAY LARGE SUMS TO OFFICIALS OF THE AUTHORITY.  IT
DESCRIBED THE METHODS BY WHICH THE BRIBE MONEY WAS TRANSMITTED THROUGH
CERTAIN ATTORNEYS TO THE OFFICIALS.  THE AFFIDAVIT ASSERTED THAT ONE
HARRY NEYER, A FORMER EMPLOYEE OF THE AUTHORITY, SERVED AS A
"CONDUIT."  IT INDICATED THAT EVIDENCE HAD BEEN OBTAINED "OVER A DULY
AUTHORIZED EAVESDROPPING DEVICE INSTALLED IN THE OFFICE OF THE
AFORESAID HARRY NEYER," THAT CONFERENCES "RELATIVE TO THE PAYMENT OF
UNLAWFUL FEES" OCCURRED IN STEINMAN'S OFFICE.  THE NUMBER AND STREET
ADDRESS OF THE OFFICE WERE PROVIDED.  THE AFFIDAVIT SPECIFIED THAT THE
"EVIDENCE INDICATES THAT THE SAID HARRY STEINMAN HAS AGREED TO PAY
THROUGH THE AFORESAID HARRY NEYER, $30,000" IN ORDER TO SECURE A
LICENSE FOR THE PALLADIUM BALLROOM, AN ESTABLISHMENT WITH NEW YORK
CITY.  THE PALLADIUM, IT WAS NOTED, HAD BEEN THE SUBJECT OF HEARINGS
BEFORE THE AUTHORITY "BECAUSE OF NARCOTICS ARRESTS THEREIN."  ON THE
BASIS OF THIS INFORMATION, THE AFFIDAVIT SOUGHT AN ORDER TO INSTALL A
RECORDING DEVICE IN STEINMAN'S BUSINESS OFFICE. 

THE SECOND AFFIDAVIT, SIGNED BY ASSISTANT DISTRICT ATTORNEY SCOTTI,
AVERRED THAT SCOTTI, AS THE CHIEF OF THE BUREAU TO WHICH GOLDSTEIN WAS
ASSIGNED, HAD READ GOLDSTEIN'S AFFIDAVIT, AND HAD CONCLUDED THAT THE
ORDER MIGHT PROPERLY ISSUE UNDER SEC 813-A. 

THE ORDER AS ISSUED PERMITTED THE RECORDING OF "ANY AND ALL
CONVERSATIONS, COMMUNICATIONS AND DISCUSSIONS" IN STEINMAN'S BUSINESS
OFFICE FOR A PERIOD OF 60 DAYS. 

THE CENTRAL OBJECTIONS MOUNTED TO THIS ORDER BY PETITIONER, AND
REPEATED AS TO THE STATUTE ITSELF BY THE COURT, ARE THREE: FIRST, THAT
IT FAILS TO SPECIFY WITH ADEQUATE PARTICULARITY THE CONVERSATIONS TO BE
SEIZED; SECOND, THAT IT PERMITS A GENERAL AND INDISCRIMINATE SEARCH AND
SEIZURE; AND THIRD, THAT THE ORDER WAS ISSUED WITHOUT A SHOWING OF
PROBABLE CAUSE.  (FN4) 

EACH OF THE FIRST TWO OBJECTIONS DEPENDS PRINCIPALLY UPON A PROBLEM
OF DEFINITION: THE MEANING IN THIS CONTEXT OF THE CONSTITUTIONAL
DISTINCTION BETWEEN "SEARCH" AND "SEIZURE."  IF LISTENING ALONE
COMPLETES A "SEIZURE," IT WOULD BE VIRTUALLY IMPOSSIBLE FOR STATE
AUTHORITIES AT A PROBABLE CAUSE HEARING TO DESCRIBE WITH PARTICULARITY
THE SEIZURES WHICH WOULD LATER BE MADE DURING EXTENDED EAVESDROPPING;
CORRESPONDINGLY, SEIZURES WOULD UNAVOIDABLY BE MADE WHICH LACKED ANY
SUFFICIENT NEXUS WITH THE OFFENSES FOR WHICH THE ORDER WAS FIRST
ISSUED.  CF. KREMEN V. UNITED STATES, 353 U.S. 346; WARDEN V. HAYDEN,
387 U.S. 294.  THERE IS NO NEED FOR PRESENT PURPOSES TO EXPLORE AT
LENGTH THE QUESTION'S SUBTLETIES; IT SUFFICES TO INDICATE THAT, IN MY
VIEW, CONVERSATIONS ARE NOT "SEIZED" EITHER BY EAVESDROPPING ALONE, OR
BY THEIR RECORDING SO THAT THEY MAY LATER BE HEARD AT THE
EAVESDROPPER'S CONVENIENCE.  JUST AS SOME EXERCISE OF DOMINION, BEYOND
MERE PERCEPTION, IS NECESSARY FOR THE SEIZURE OF TANGIBLES, SO SOME USE
OF THE CONVERSATION BEYOND THE INITIAL LISTENING PROCESS IS REQUIRED
FOR THE SEIZURE OF THE SPOKEN WORD.  CF. LOPEZ V. UNITED STATES, 373
U.S. 427, 459 (DISSENTING OPINION); UNITED STATES V. ON LEE, 193 F.2D
306, 313-314 (DISSENTING OPINION); DISTRICT OF COLUMBIA V. LITTLE, 85
U.S. APP. D.C. 242, 247, 178 F.2D 13, 18, AFFIRMED ON OTHER GROUNDS,
339 U.S. 1.  WITH THIS PREMISE, I TURN TO THESE THREE OBJECTIONS. 

THE "PARTICULARITY" DEMANDED BY THE FOURTH AMENDMENT HAS NEVER BEEN
THOUGHT BY THIS COURT TO BE REDUCIBLE "TO FORMULA"; OKLAHOMA PRESS PUB.
CO. V. WALLING, 327 U.S. 186, 209; IT HAS INSTEAD BEEN MADE PLAIN THAT
ITS MEASUREMENT MUST TAKE FULLY INTO ACCOUNT THE CHARACTER BOTH OF THE
MATERIALS TO BE SEIZED AND OF THE PURPOSES OF THE SEIZURES. 
ACCORDINGLY, WHERE THE MATERIALS "ARE BOOKS, AND THE BASIS FOR THEIR
SEIZURE IS THE IDEAS WHICH THEY CONTAIN," THE MOST "SCRUPULOUS
EXACTITUDE" IS DEMANDED IN THE WARRANT'S DESCRIPTION; STANFORD V.
TEXAS, 379 U.S. 476, 485; SEE ALSO MARCUS V. SEARCH WARRANT, 367 U.S.
717; BUT WHERE THE SPECIAL PROBLEMS ASSOCIATED WITH THE FIRST AMENDMENT
ARE NOT INVOLVED, AS THEY ARE NOT HERE, A MORE "REASONABLE
PARTICULARITY," BROWN V. UNITED STATES, 276 U.S. 134, 143; CONSOLIDATED
RENDERING CO. V. VERMONT, 207 U.S. 541, 554, IS PERMISSIBLE.  THE
DEGREE OF PARTICULARITY NECESSARY IS BEST MEASURED BY THAT
REQUIREMENT'S PURPOSES.  THE CENTRAL PURPOSE OF THE PARTICULARITY
REQUIREMENT IS TO LEAVE "NOTHING  ...  TO THE DISCRETION OF THE OFFICER
EXECUTING THE WARRANT," MARRON V. UNITED STATES, 275 U.S. 192, 196, BY
DESCRIBING THE MATERIALS TO BE SEIZED WITH PRECISION SUFFICIENT TO
PREVENT "THE SEIZURE OF ONE THING UNDER A WARRANT DESCRIBING ANOTHER." 
IBID.  THE STATE AUTHORITIES ARE NOT COMPELLED AT THE PROBABLE CAUSE
HEARING TO WAGER, UPON PENALTY OF A SUBSEQUENT REVERSAL, THAT THEY CAN
SUCCESSFULLY PREDICT EACH OF THE CHARACTERISTICS OF THE MATERIALS WHICH
THEY WILL LATER SEIZE, CF. CONSOLIDATED RENDERING CO. V. VERMONT,
SUPRA, AT 554; SUCH A DEMAND WOULD, BY DISCOURAGING THE USE OF THE
JUDICIAL PROCESS, DEFEAT THE AMENDMENT'S CENTRAL PURPOSE.  UNITED
STATES V. VENTRESCA, 380 U.S. 102, 108. 

THE MATERIALS TO BE SEIZED ARE INSTEAD DESCRIBED WITH SUFFICIENT
PARTICULARITY IF THE WARRANT READILY PERMITS THEIR IDENTIFICATION BOTH
BY THOSE ENTRUSTED WITH THE WARRANT'S EXECUTION AND BY THE COURT IN ANY
SUBSEQUENT JUDICIAL PROCEEDING.  "IT IS," THE COURT HAS SAID WITH
REFERENCE TO THE PARTICULARITY OF THE PLACE TO BE SEARCHED, "ENOUGH IF
THE DESCRIPTION IS SUCH THAT THE OFFICER  ... CAN WITH REASONABLE
EFFORT ASCERTAIN AND IDENTIFY" THE WARRANT'S OBJECTS.  STEELE V. UNITED
STATES NO. 1, 267 U.S. 498, 503. 

THESE STANDARDS MUST BE EQUALLY APPLICABLE TO THE SEIZURE OF WORDS,
AND, UNDER THEM, THIS ORDER DID NOT LACK THE REQUISITE PARTICULARITY. 
THE ORDER HERE PERMITTED THE INTERCEPTION, OR SEARCH, OF ANY AND ALL
CONVERSATIONS OCCURRING WITHIN THE ORDER'S TIME LIMITATIONS AT THE
SPECIFIED LOCATION; BUT THIS DIRECTION MUST BE READ IN LIGHT OF THE
TERMS OF THE AFFIDAVITS, WHICH, UNDER SEC 813, FORM PART OF THE
AUTHORITY FOR THE EAVESDROPPING.  THE AFFIDAVITS MAKE PLAIN THAT, AMONG
THE INTERCEPTED CONVERSATIONS, THE POLICE WERE AUTHORIZED TO SEIZE ONLY
THOSE "RELATIVE TO THE PAYMENT OF UNLAWFUL FEES NECESSARY TO OBTAIN
LIQUOR LICENSES."  THESE DIRECTIONS SUFFICED TO PROVIDE A STANDARD
WHICH LEFT NOTHING IN THE CHOICE OF MATERIALS TO BE SEIZED TO THE
"WHIM," STANFORD V. TEXAS, SUPRA, AT 485, OF THE STATE AUTHORITIES. 
THERE COULD BE NO DIFFICULTY, EITHER IN THE COURSE OF THE SEARCH OR IN
ANY SUBSEQUENT JUDICIAL PROCEEDING, IN DETERMINING WHETHER SPECIFIC
CONVERSATIONS WERE AMONG THOSE AUTHORIZED FOR SEIZURE BY THE ORDER. 
THE FOURTH AND FOURTEENTH AMENDMENTS DO NOT DEMAND MORE.   COMPARE
KAMISAR, THE WIRETAPPING-EAVESDROPPING PROBLEM: A PROFESSOR'S VIEW, 44
MINN. L. REV. 891, 913. 

NOR WAS THE ORDER INVALID BECAUSE IT PERMITTED THE SEARCH OF ANY AND
ALL CONVERSATIONS OCCURRING AT THE SPECIFIED LOCATION; IF THE REQUISITE
PAPERS HAVE IDENTIFIED THE MATERIALS TO BE SEIZED WITH SUFFICIENT
PARTICULARITY, AS THEY DID HERE, AND IF THE SEARCH WAS CONFINED TO AN
APPROPRIATE AREA, THE ORDER IS NOT INVALIDATED BY THE EXAMINATION OF
ALL WITHIN THAT AREA REASONABLY NECESSARY FOR DISCOVERY OF THE
MATERIALS TO BE SEIZED.  I DO NOT DOUBT THAT SEARCHES BY EAVESDROP MUST
BE CONFINED IN TIME PRECISELY AS THE SEARCH FOR TANGIBLES IS CONFINED
IN SPACE, BUT THE ACTUAL DURATION OF THE INTRUSION HERE, OR FOR THAT
MATTER THE TOTAL PERIOD AUTHORIZED BY THE ORDER, WAS NOT, GIVEN THE
CHARACTER OF THE OFFENSES INVOLVED, EXCESSIVE.  ALL THE DISPUTED
EVIDENCE WAS OBTAINED WITHIN 13 DAYS, SCARECELY UNREASONABLE IN LIGHT
OF AN ALLEGED CONSPIRACY INVOLVING MANY INDIVIDUALS AND A LENGTHY
SERIES OF TRANSACTIONS.    THE QUESTION THEREFORE REMAINS ONLY WHETHER,
AS PETITIONER SUGGESTS, THE ORDER WAS ISSUED WITHOUT AN ADEQUATE
SHOWING OF PROBABLE CAUSE.  THE STANDARDS FOR THE MEASUREMENT OF
PROBABLE CAUSE HAVE OFTEN BEEN EXPLICATED IN THE OPINIONS OF THIS
COURT; SEE, E.G., UNITED STATES V. VENTRESCA, 380 U.S. 102; ITS
SUFFICES NOW SIMPLY TO EMPHASIZE THAT THE INFORMATION PRESENTED TO THE
MAGISTRATE OR COMMISSIONER MUST PERMIT HIM TO "JUDGE FOR HIMSELF THE
PERSUASIVENESS OF THE FACTS RELIED ON BY A COMPLAINING OFFICER." 
GIORDENELLO V. UNITED STATES, 357 U.S. 480, 486.  THE MAGISTRATE MUST
"ASSESS INDEPENDENTLY THE PROBABILITY" THAT THE FACTS ARE AS THE
COMPLAINANT HAS ALLEGED; ID., AT 487; HE MAY NOT "ACCEPT WITHOUT
QUESTION THE COMPLAINANT'S MERE CONCLUSION."  ID., AT 486.    AS
MEASURED BY THE TERMS OF THE AFFIDAVITS HERE, THE ISSUING JUDGE COULD
PROPERLY HAVE CONCLUDED THAT PROBABLE CAUSE EXISTED FOR THE ORDER. 
UNLIKE THE SITUATIONS IN NATHANSON V. UNITED STATES, 290 U.S. 41, AND
GIORDENELLO V. UNITED STATES, SUPRA, THE JUDGE WAS PROVIDED THE
EVIDENCE WHICH SUPPORTED THE AFFIANTS' CONCLUSIONS; HE WAS NOT
COMPELLED TO RELY MERELY ON THEIR "AFFIRMATION OF SUSPICION AND
BELIEF," NATHANSON V. UNITED STATES, SUPRA, AT 46.  COMPARE RUGENDORF
V. UNITED STATES, 376 U.S. 528; AGUILAR V. TEXAS, 378 U.S. 108.  IN MY
OPINION, TAKING THE STEINMAN AFFIDAVITS ON THEIR FACE, THE
CONSTITUTIONAL REQUIREMENTS OF PROBABLE CAUSE WERE FULLY SATISFIED. 

                                             V. 

IT IS, HOWEVER, PLAIN THAT THE STEINMAN ORDER WAS ISSUED PRINCIPALLY
UPON THE BASIS OF EVIDENCE OBTAINED UNDER THE AUTHORITY OF THE NEYER
ORDER; ABSENT THE NEYER EAVESDROPPED EVIDENCE, THE STEINMAN AFFIDAVITS
CONSIST ENTIRELY OF CONCLUSORY ASSERTIONS, AND THEY WOULD, IN MY
JUDGMENT, BE INSUFFICIENT.  IT IS, THEREFORE, ALSO NECESSARY TO EXAMINE
THE NEYER ORDER. 

THE THRESHOLD ISSUE IS WHETHER PETITIONER HAS STANDING TO CHALLENGE
THE VALIDITY UNDER THE CONSTITUTION OF THE NEYER ORDER.  STANDING TO
CHALLENGE THE CONSTITUTIONAL VALIDITY OF A SEARCH AND SEIZURE HAS BEEN
AN ISSUE OF SOME DIFFICULTY AND UNCERTAINTY; (FN5) IT HAS,
NEVERTHELESS, HITHERTO BEEN THOUGHT TO HINGE, NOT UPON THE USE AGAINST
THE CHALLENGING PARTY OF EVIDENCE SEIZED DURING THE SEARCH, BUT INSTEAD
UPON WHETHER THE PRIVACY OF THE CHALLENGING PARTY'S PREMISES OR PERSON
HAS BEEN INVADED.  JONES V. UNITED STATES, 362 U.S. 257; WONG SUN V.
UNITED STATES, 371 U.S. 471.  THESE CASES CENTERED UPON SEARCHES
CONDUCTED BY FEDERAL AUTHORITIE AND CHALLENGED UNDER FED. RULE CRIM.
PROC. 41(E), BUT THERE IS NO REASON NOW TO SUPPOSE THAT ANY DIFFERENT
STANDARD IS REQUIRED BY THE FOURTEENTH AMENDMENT FOR SEARCHES CONDUCTED
BY STATE OFFICIALS.  SEE GENERALLY MAGUIRE, EVIDENCE OF GUILT 215-216
(1959). 

THE RECORD BEFORE US DOES NOT INDICATE WITH PRECISION WHAT
INFORMATION WAS OBTAINED UNDER THE NEYER ORDER, BUT IT APPEARS, AND
PETITIONER DOES NOT OTHERWISE ASSERT, THAT PETITIONER WAS NEVER PRESENT
IN NEYER'S OFFICE DURING THE PERIOD IN WHICH EAVESDROPPING WAS
CONDUCTED.  THERE IS, MOREOVER, NO SUGGESTION THAT PETITIONER HAD ANY
PROPERTY INTEREST IN THE PREMISES IN WHICH THE EAVESDROPPING DEVICE WAS
INSTALLED.  APART FROM THE USE OF EVIDENCE OBTAINED UNDER THE NEYER
ORDER TO JUSTIFY ISSUANCE OF THE STEINMAN ORDER, UNDER WHICH
PETITIONER'S PRIVACY WAS ASSUREDLY INVADED, PETITIONER IS LINKED WITH
ACTIVITIES UNDER THE NEYER ORDER ONLY BY ONE FLEETING AND AMBIGUOUS
REFERENCE IN THE RECORD. 

IN A PRETRIAL HEARING CONDUCTED ON A MOTION TO SUPPRESS THE STEINMAN
RECORDINGS, COUNSEL FOR THE STATE BRIEFLY DESCRIBED THE MATERIALS
OBTAINED UNDER THE NEYER ORDER.  COUNSEL INDICATED THAT: 

"MR. NEYER THEN HAS CONVERSATIONS WITH MR. STEINMAN AND OTHER
PERSONS.  IN THE COURSE OF SOME OF THESE CONVERSATIONS, WE HAVE ONE
HALF OF A TELEPHONE CALL, OF SEVERAL TELEPHONE CALLS BETWEEN MR. NEYER
AND A PERSON HE REFERS TO ON THE TELEPHONE AS MR. BERGER; AND IN THE
CONVERSATION WITH MR. BERGER MR. NEYER DISCUSSES ALSO THE OBTAINING OF
A LIQUOR LICENSE FOR THE PALLADIUM AND MENTIONS THE FACT THAT THIS IS
GOING TO BE A BIG ONE." 

COUNSEL FOR PETITIONER RESPONDED, SHORTLY AFTER, THAT "I TAKE IT  ...
THAT NONE OF THE SUBJECT MATTER TO WHICH COUNSEL FOR THE STATE HAS
JUST ADVERTED IS ANY PART OF THIS CASE  ...  ."  COUNSEL FOR THE STATE
RESPONDED: 

"THAT'S RIGHT, YOUR HONOR.  I AM NOT - I THINK EVIDENCE CAN BE
BROUGHT OUT DURING THE TRIAL THAT BERGER, WHO MR. STEINMAN, MR. NEYER
SPEAKS TO CONCERNING THE PALLADIUM, IS, IN FACT, THE DEFENDANT RALPH
BERGER." 

HOWEVER OBLIQUE THIS INVASION OF PETITIONER'S PERSONAL PRIVACY MIGHT
AT FIRST SEEM, IT WOULD ENTIRELY SUFFICE, IN MY VIEW, TO AFFORD
PETITIONER STANDING TO CHALLENGE THE VALIDITY OF THE NEYER ORDER.  IT
IS SURELY WITHOUT SIGNIFICANCE IN THESE CIRCUMSTANCES THAT PETITIONER
DID NOT CONDUCT THE CONVERSATION FROM A POSITION PHYSICALLY WITHIN THE
ROOM IN WHICH THE DEVICE WAS PLACED; THE FORTUITOUSNESS OF HIS LOCATION
CAN MATTER NO MORE THAN IF HE HAD BEEN PRESENT FOR A CONFERENCE IN
NEYER'S OFFICE, BUT HAD NOT SPOKEN, OR HAD BEEN SEATED BEYOND THE
LIMITS OF THE DEVICE'S HEARING.  THE CENTRAL QUESTION SHOULD PROPERLY
BE WHETHER HIS PRIVACY HAS BEEN VIOLATED BY THE SEARCH; IT IS ENOUGH
FOR THIS PURPOSE THAT HE PARTICIPATED IN A DISCUSSION INTO WHICH THE
RECORDING INTRUDED.  STANDING SHOULD NOT, IN ANY EVENT, BE MADE AN
INSUPERABLE BARRIER WHICH UNNECESSARILY DEPRIVES OF AN ADEQUATE REMEDY
THOSE WHOSE RIGHTS HAVE BEEN ABRIDGED; TO IMPOSE DISTINCTIONS OF
EXCESSIVE REFINEMENT UPON THE DOCTRINE "WOULD NOT COMPORT WITH OUR
JUSTLY PROUD CLAIM OF THE PROCEDURAL PROTECTIONS ACCORDED TO THOSE
CHARGED WITH CRIME."  JONES V. UNITED STATES, SUPRA, AT 267.  IT WOULD
INSTEAD "PERMIT A QUIBBLING DISTINCTION TO OVERTUR A PRINCIPLE WHICH
WAS DESIGNED TO PROTECT A FUNDAMENTAL RIGHT."  UNITED STATES V.
JEFFERS, 342 U.S. 48, 52.  I WOULD CONCLUDE THAT, UNDER THE
CIRCUMSTANCES HERE, THE RECORDING OF A PORTION OF A TELEPHONE
CONVERSATION TO WHICH PETITIONER WAS PARTY WOULD SUFFICE TO GIVE HIM
STANDING TO CHALLENGE THE VALIDITY UNDER THE CONSTITUTION OF THE NEYER
ORDER.  (FN6) 

GIVEN PETITIONER'S STANDING UNDER FEDERAL LAW TO CHALLENGE THE
VALIDITY OF THE NEYER ORDER, I WOULD CONCLUDE THAT SUCH ORDER WAS
ISSUED WITHOUT AN ADEQUATE SHOWING OF PROBABLE CAUSE.  IT SEEMS QUITE
PLAIN, FROM THE FACTS DESCRIBED BY THE STATE, THAT AT THE MOMENT THE
NEYER ORDER WAS SOUGHT THE RACKETS BUREAU INDEED HAD AMPLE INFORMATION
TO JUSTIFY THE ISSUANCE OF AN EAVESDROPPING ORDER.  NONETHELESS, THE
AFFIDAVITS PRESENTED AT THE NEYER HEARING UNACCOUNTABLY CONTAINED ONLY
THE MOST CONCLUSORY ALLEGATIONS OF SUSPICION.  THE RECORD BEFORE US IS
SILENT ON WHETHER ADDITIONAL INFORMATION MIGHT HAVE BEEN ORALLY
PRESENTED TO THE ISSUING JUDGE.  (FN7)  UNDER THESE CIRCUMSTANCES, I AM
IMPELLED TO THE VIEW THAT THE JUDGE LACKED SUFFICIENT INFORMATION TO
PERMIT HIM TO ASSESS THE CIRCUMSTANCES AS A "NEUTRAL AND DETACHED
MAGISTRATE," JOHNSON V. UNITED STATES, 333 U.S. 10, 14, AND ACCORDINGLY
THAT THE NEYER ORDER WAS IMPERMISSIBLE. 

                                             VI. 

IT DOES NOT FOLLOW, HOWEVER, THAT EVIDENCE OBTAINED UNDER THE NEYER
ORDER COULD NOT PROPERLY HAVE BEEN EMPLOYED TO SUPPORT ISSUANCE OF THE
STEINMAN ORDER.  THE BASIC QUESTION HERE IS THE SCOPE OF THE
EXCLUSIONARY RULE FASHIONED IN WEEKS V. UNITED STATES, 232 U.S. 383,
AND MADE APPLICABLE TO STATE PROCEEDINGS IN MAPP V. OHIO, 367 U.S.
643.  THE COURT DETERMINED IN WEEKS THAT THE PURPOSES OF THE FOURTH
AMENDMENT COULD BE FULLY VINDICATED ONLY IF MATERIALS SEIZED IN
VIOLATION OF ITS REQUIREMENTS WERE EXCLUDED FROM SUBSEQUENT USE AGAINST
PARTIES AGGRIEVED BY THE SEIZURE.  DESPITE BROADER STATEMENTS IN
CERTAIN OF THE CASES, SEE, E.G., SILVERTHORNE LUMBER CO. V. UNITED
STATES, 251 U.S. 385, 392, THE STIUATIONS FOR WHICH THE WEEKS RULE WAS
DEVISED, AND TO WHICH IT HAS SINCE BEEN APPLIED, HAVE UNIFORMLY
INVOLVED MISCONDUCT BY POLICE OR PROSECUTORIAL AUTHORITIES.  THE RULE'S
PURPOSES HAVE THUS BEEN SAID TO BE BOTH TO DISCOURAGE "DISOBEDIENCE TO
THE FEDERAL CONSTITUTION," MAPP V. OHIO, SUPRA, AT 657, AND TO AVOID
ANY POSSIBILITY THAT THE COURTS THEMSELVES MIGHT BE "ACCOMPLICES IN THE
WILLFUL DISOBEDIENCE OF A CONSTITUTION THEY ARE SWORN TO UPHOLD." 
ELKINS V. UNITED STATES, 364 U.S. 206, 223.  THE COURT HAS CAUTIONED
THAT THE EXCLUSIONARY RULE WAS NOT INTENDED TO ESTABLISH SUPERVISORY
JURISDICTION OVER THE ADMINISTRATION OF STATE CRIMINAL JUSTICE, AND
THAT THE STATES MIGHT STILL FASHION "WORKABLE RULES GOVERNING ARRESTS,
SEARCHES AND SEIZURES."  KER V. CALIFORNIA, 374 U.S. 23, 34. 

I FIND NOTHING IN THE TERMS OR PURPOSES OF THE RULE WHICH DEMANDS THE
INVALIDATION, UNDER THE CIRCUMSTANCES AT ISSUE HERE, OF THE STEINMAN
ORDER.  THE STATE AUTHORITIES APPEARED, AS THE STATUTE REQUIRES, BEFORE
A JUDICIAL OFFICIAL, AND HELD THEMSELVES READY TO PROVIDE INFORMATION
TO JUSTIFY THE ISSUANCE OF AN EAVESDROPPING ORDER.  THE NECESSARY
EVIDENCE WAS AT HAND, AND THERE WAS APPARENTLY NO REASON FOR THE STATE
TO HAVE PREFERRED THAT IT NOT BE GIVEN TO THE ISSUING JUDGE.  THE NEYER
ORDER IS THUS INVALID SIMPLY AS A CONSEQUENCE OF THE JUDGE'S
WILLINGNESS TO ACT UPON SUBSTANTIALLY LESS INFORMATION THAN THE
FOURTEENTH AMENDMENT OBLIGED HIM TO DEMAND; CORRESPONDINGLY, THE ONLY
"MISCONDUCT" THAT COULD BE CHARGED AGAINST THE PROSECUTION CONSISTS
ENTIRELY OF ITS FAILURE TO PRESS ADDITIONAL EVIDENCE UPON HIM.  IF THE
EXCLUSIONARY RULE WERE TO BE APPLIED IN THIS AND SIMILAR SITUATIONS,
PRAISEWORTHY EFFORTS OF LAW ENFORCEMENT AUTHORITIES WOULD BE SERIOUSLY
AND QUITE UNNECESSARILY, HAMPERED; THE EVIDENCE LAWFULLY OBTAINED UNDER
A LENGTHY SERIES OF VALID WARRANTS MIGHT, FOR EXAMPLE, BE LOST BY THE
HASTE OF A SINGLE MAGISTRATE.  THE RULE APPLIED IN THAT MANNER WOULD
NOT ENCOURAGE POLICE OFFICERS TO ADHERE TO THE REQUIREMENTS OF THE
CONSTITUTION; IT WOULD SIMPLY DEPRIVE THE STATE OF EVIDENCE IT HAS
SOUGHT IN ACCORDANCE WITH THOSE REQUIREMENTS. 

I WOULD HOLD THAT WHERE, AS HERE, AUTHORITIES HAVE OBTAINED A WARRANT
IN A JUDICIAL PROCEEDING UNTAINTED BY FRAUD, A SECOND WARRANT ISSUED ON
THE AUTHORITY OF EVIDENCE GATHERED UNDER THE FIRST IS NOT INVALIDATED
BY A SUBSEQUENT FINDING THAT THE FIRST WAS ISSUED WITHOUT A SHOWING OF
PROBABLE CAUSE. 

                                            VII. 

IT FOLLOWS THAT THE STEINMAN ORDER WAS, AS A MATTER OF CONSTITUTIONAL
REQUIREMENT, VALIDLY ISSUED, THAT THE RECORDINGS OBTAINED UNDER IT WERE
PROPERLY ADMITTED AT PETITIONER'S TRIAL, AND, ACCORDINGLY, THAT HIS
CONVICTION MUST BE AFFIRMED.  (FN8) 

FN1  HOFFA V. UNITED STATES, 385 U.S. 293, 317 (DISSENTING OPINION). 

FN2  SILVERMAN V. UNITED STATES, 365 U.S. 505, 510. 

FN3  LOPEZ V. UNITED STATES, 373 U.S. 427, 441 (OPINION CONCURRING IN
RESULT). 

FN4  TWO OF PETITIONER'S OTHER CONTENTIONS ARE PLAINLY FORECLOSED BY
RECENT OPINIONS OF THIS COURT.  HIS CONTENTION THAT EAVESDROPPING
UNAVOIDABLY INFRINGES THE RULE FORBIDDING THE SEIZURE OF "MERE
EVIDENCE" IS PRECLUDED BY WARDEN V. HAYDEN, 387 U.S. 294.  HIS
CONTENTION THAT EAVESDROPPING VIOLATES HIS CONSTITUTIONAL PRIVILEGE
AGAINST SELF-INCRIMINATION IS ANSWERED BY OSBORN V. UNITED STATES, 385
U.S. 323, AND HOFFA V. UNITED STATES, 385 U.S. 293. 

FN5  SEE, E.G., EDWARDS, STANDING TO SUPPRESS UNREASONABLY SEIZED
EVIDENCE, 47 NW. U.L.  REV. 471; COMMENT, STANDING TO OBJECT TO AN
UNREASONABLE SEARCH AND SEIZURE, 34 U. CHI.  L. REV. 342; RECENT
DEVELOPMENT, SEARCH AND SEIZURE: ADMISSIBILITY OF ILLEGALLY ACQUIRED
EVIDENCE AGAINST THIRD PARTIES, 66 COL. L. REV. 400. 

FN6  WHILE ON THIS RECORD IT CANNOT BE SAID WITH ENTIRE ASSURANCE
THAT THE "BERGER" MENTIONED IN THE NEYER EAVESDROPPED CONVERSATION WAS
THIS PETITIONER, I THINK IT PROPER TO PROCEED AT THIS JUNCTURE ON THE
BASIS THAT SUCH IS THE CASE, LEAVING WHATEVER QUESTIONS OF IDENTITY
THERE MAY BE TO SUCH STATE PROCEEDINGS AS, ON THE PREMISES OF THIS
OPINION, MIGHT SUBSEQUENTLY EVENTUATE IN THE STATE COURTS.  SEE N. 8,
INFRA. 

FN7  THE ONLY ADDITIONAL REFERENCE IN THE RECORD POSSIBLY PERTINENT
TO THE CONTENT OF THE NEYER HEARING IS A CONCLUSORY ASSERTION BY
COUNSEL FOR THE STATE IN ARGUMENT ON THE MOTION TO SUPPRESS THAT THE
STATE HAD SHOWN ITS EVIDENCE TO THE ISSUING JUDGE.  THE REFERENCE IS
OBSCURE, BUT ITS CONTEXT SUGGESTS STRONGLY THAT COUNSEL MEANT ONLY THAT
THE STEINMAN AFFIDAVITS WERE ADEQUATE FOR PURPOSES OF PROBABLE CAUSE. 

FN8  WHETHER N.Y. CIV. PRAC.  SEC 4506, AS AMENDED TO TAKE EFFECT
JULY 1, 1962, SOME 18 DAYS AFTER THE ISSUANCE OF THE STEINMAN ORDER,
WOULD BE DEEMED, UNDER THE PREMISES OF THIS OPINION, TO RENDER
INADMISSIBLE AT BERGER'S TRIAL THE EVIDENCE PROCURED UNDER IT, IS A
MATTER FOR THE STATE COURTS TO DECIDE.  SEE PEOPLE V. COHEN, 42 MISC.
2D 403, 408, 409, 248 N.Y.S.2D 339, 344, 345; PEOPLE V. BESHANY, 43
MISC. 2D 521, 532, 252 N.Y.S.2D 110, 121.  FURTHER STATE PROCEEDINGS ON
THAT SCORE WOULD OF COURSE NOT BE FORECLOSED UNDER A DISPOSITION IN
ACCORDANCE WITH THIS OPINION. 

MR. JUSTICE WHITE, DISSENTING. 

WITH ALL DUE RESPECT, I DISSENT FROM THE MAJORITY'S DECISION WHICH
UNJUSTIFIABLY STRIKES DOWN "ON ITS FACE" A 1938 NEW YORK STATUTE
APPLIED BY STATE OFFICIALS IN SECURING PEITIONER'S CONVICTION.  IN
ADDITION, I FIND NO VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHTS AND
I WOULD AFFIRM. 

               I. 

AT PETITIONER'S TRIAL FOR CONSPIRING TO BRIBE THE CHAIRMAN OF THE NEW
YORK STATE LIQUOR AUTHORITY, THE PROSECUTION INTRODUCED TAPE RECORDINGS
OBTAINED THROUGH AN EAVESDROP OF THE OFFICE OF HARRY STEINMAN WHICH HAD
BEEN AUTHORIZED BY COURT ORDER PURSUANT TO SEC 813-A, N.Y.  CODE CRIM.
PROC. SINCE BERGER WAS RIGHTFULLY IN STEINMAN'S OFFICE WHEN HIS
CONVERSATIONS WERE RECORDED THROUGH THE STEINMAN EAVESDROP, HE IS
ENTITLED TO HAVE THOSE RECORDINGS EXCLUDED AT HIS TRIAL IF THEY WERE
UNCONSTITUTIONALLY OBTAINED.  JONES V. UNITED STATES, 362 U.S. 257;
SILVERMAN V. UNITED STATES, 365 U.S. 505.  PEITIONER VIGOROUSLY ARGUES
THAT ALL JUDICIALLY AUTHORIZED EAVESDROPPING VIOLATES FOURTH AMENDMENT
RIGHTS, BUT HIS POSITION IS UNSOUND.   TWO OF PETITIONER'S THEORIES ARE
EASILY ANSWERED.  FIRST, SURREPTITIOUS ELECTRONIC RECORDING OF
CONVERSATIONS AMONG PRIVATE PERSONS, AND INTRODUCTION OF THE RECORDING
DURING A CRIMINAL TRIAL, DO NOT VIOLATE THE FIFTH AMENDMENT'S BAN
AGAINST COMPULSORY SELF-INCRIMINATION BECAUSE THE CONVERSATIONS ARE NOT
THE PRODUCT OF ANY OFFICIAL COMPULSION.  OLMSTEAD V. UNITED STATES, 277
U.S. 438; HOFFA V. UNITED STATES, 385 U.S. 293; OSBORN V. UNITED
STATES, 385 U.S. 323.  SECOND, OUR DECISION IN WARDEN V. HAYDEN, 387
U.S. 294, ANSWERS PETITIONER'S CONTENTION THAT EAVESDROPPING UNDER SEC
813-A CONSTITUTES AN UNLAWFUL SEARCH FOR "MERE EVIDENCE"; WHATEVER THE
LIMITS OF THE SEARCH AND SEIZURE POWER MAY BE UNDER THE FOURTH
AMENDMENT, THE ORAL EVIDENCE OF A FURTIVE BRIBERY CONSPIRACY SOUGHT IN
THE APPLICATION FOR THE STEINMAN EAVESDROP ORDER WAS WITHIN THE SCOPE
OF PROPER POLICE INVESTIGATION INTO SUSPECTED CRIMINAL ACTIVITY. 

PETITIONER PRIMARILY ARGUES THAT EAVESDROPPING IS INVALID, EVEN
PURSUANT TO COURT ORDER OR SEARCH WARRANT, BECAUSE IT CONSTITUTES A
"GENERAL SEARCH" BARRED BY THE FOURTH AMENDMENT.  PETITIONER SUGGESTS
THAT THE SEARCH IS INHERENTLY OVERBROAD BECAUSE THE EAVESDROPPER WILL
OVERHEAR CONVERSATIONS WHICH DO NOT RELATE TO CRIMINAL ACTIVITY.  BUT
THE SAME IS TRUE OF ALMOST ALL SEARCHES OF PRIVATE PROPERTY WHICH THE
FOURTH AMENDMENT PERMITS.  IN SEARCHING FOR SEIZABLE MATTERS, THE
POLICE MUST NECESSARILY SEE OR HEAR, AND COMPREHEND, ITEMS WHICH DO NOT
RELATE TO THE PURPOSE OF THE SEARCH.  THAT THIS OCCURS, HOWEVER, DOES
NOT RENDER THE SEARCH INVALID, SO LONG AS IT IS AUTHORIZED BY A
SUITABLE SEARCH WARRANT AND SO LONG AS THE POLICE, IN EXECUTING THAT
WARRANT, LIMIT THEMSELVES TO SEARCHING FOR ITEMS WHICH MAY
CONSTITUTIONALLY BE SEIZED.  (FN1)  THUS, WHILE I WOULD AGREE WITH
PETITIONER THAT INDIVIDUAL SEARCHES OF PRIVATE PROPERTY THROUGH
SURREPTITIOUS EAVESDROPPING WITH A WARRANT MUST BE CAREFULLY
CIRCUMSCRIBED TO AVOID EXCESSIVE INVASION OF PRIVACY AND SECURITY, I
CANNOT AGREE THAT ALL SUCH INTRUSIONS ARE CONSTITUTIONALLY
IMPERMISSIBLE GENERAL SEARCHES. 

THIS CASE BOILS DOWN, THEREFORE, TO THE QUESTION OF WHETHER SEC 813-A
WAS CONSTITUTIONALLY APPLIED IN THIS CASE.  AT THE OUTSET, IT IS
ESSENTIAL TO NOTE THAT THE RECORDINGS OF THE NEYER OFFICE EAVESDROP
WERE NOT INTRODUCED AT PETITIONER'S TRIAL, NOR WAS PETITIONER PRESENT
DURING THIS ELECTRONIC SURVEILLANCE, NOR WERE ANY OF PETITIONER'S WORDS
RECORDED BY THAT EAVESDROP.  THE ONLY LINKS BETWEEN THE NEYER EAVESDROP
AND PETITIONER'S CONVICTION ARE (A) THAT EVIDENCE SECURED FROM THE
NEYER RECORDINGS WAS USED IN THE STEINMAN AFFIDAVITS, WHICH IN TURN LED
TO THE STEINMAN EAVESDROP WHERE PEITIONER'S INCRIMINATING CONVERSATIONS
WERE OVERHEARD; AND (B) THAT THE NEYER EAVESDROP RECORDED WHAT MAY HAVE
BEEN (FN2) THE NEYER END OF A TELEPHONE CONVERSATION BETWEEN NEYER AND
BERGER.  IN MY OPINION, IT IS CLEAR THAT NEITHER OF THESE CIRCUMSTANCES
IS ENOUGH TO ESTABLISH THAT BERGER'S FOURTH AMENDMENT INTERESTS WERE
INVADED BY THE EAVESDROP IN NEYER'S OFFICE.  WONG SUN V. UNITED STATES,
371 U.S. 471; JONES V. UNITED STATES, 362 U.S. 257.  THUS, PEITIONER
CANNOT SECURE REVERSAL ON THE BASIS OF THE ALLEGEDLY UNCONSTITUTIONAL
NEYER EAVESDROP. 

I TURN TO THE CIRCUMSTANCES SURROUNDING THE ISSUANCE OF THE ONE
EAVESDROP ORDER WHICH PETITIONER HAS "STANDING" TO CHALLENGE.  ON JUNE
11, 1962, ASSISTANT DISTRICT ATTORNEY DAVID GOLDSTEIN FILED AN
AFFIDAVIT BEFORE JUDGE JOSEPH SARAFITE OF THE NEW YORK COUNTY COURT OF
GENERAL SESSIONS REQUESTING A COURT ORDER UNDER SEC 813-A AUTHORIZING
THE STEINMAN EAVESDROP.  GOLDSTEIN AVERRED THAT THE DISTRICT ATTORNEY'S
OFFICE WAS INVESTIGATING ALLEGED CORRUPTION IN THE STATE LIQUOR
AUTHORITY, THAT THE OFFICE HAD OBTAINED EVIDENCE OF A CONSPIRACY
BETWEEN AUTHORITY OFFICIALS AND PRIVATE ATTORNEYS TO EXTORT LARGE
ILLEGAL PAYMENTS FROM LIQUOR LICENSE APPLICANTS, THAT A "DULY
AUTHORIZED EAVESDROPPING DEVICE" HAD PREVIOUSLY BEEN INSTALLED IN THE
OFFICE OF NEYER WHO WAS SUSPECTED OF ACTING AS A CONDUIT FOR THE
BRIBES, AND THAT THIS DEVICE HAD OBTAINED EVIDENCE "THAT CONFERENCES
RELATIVE TO THE PAYMENT OF UNLAWFUL FEES NECESSARY TO OBTAIN LIQUOR
LICENSES OCCUR IN THE OFFICE OF ONE HARRY STEINMAN, LOCATED IN ROOM 801
AT 15 EAST 48TH STREET, IN THE COUNTY, CITY AND STATE OF NEW YORK." 
THE AFFIDAVIT WENT ON TO DESCRIBE STEINMAN AT LENGTH AS A PROSPECTIVE
LIQUOR LICENSE APPLICANT AND TO RELATE EVIDENCE OF A SPECIFIC PAYOFF
WHICH STEINMAN WAS LIKELY TO MAKE, THROUGH NEYER, IN THE IMMEDIATE
FUTURE.  ON THE BASIS OF THESE FACTS, THE AFFIDAVIT CONCLUDED THAT
"THERE IS REASONABLE GROUND TO BELIEVE THAT EVIDENCE OF CRIME MAY BE
OBTAINED BY OVERHEARING AND RECORDING THE CONVERSATIONS, COMMUNICATIONS
AND DISCUSSIONS THAT MAY TAKE PLACE IN THE OFFICE OF HARRY STEINMAN
WHICH IS LOCATED IN ROOM 801 AT 15 EAST 48TH STREET," AND REQUESTED AN
ORDER AUTHORIZING AN EAVESDROP UNTIL AUGUST 11, 1962.  AN AFFIDAVIT OF
ASSISTANCE DISTRICT ATTORNEY ALFRED SCOTTI VERIFIED THE INFORMATION
CONTAINED IN THE GOLDSTEIN AFFIDAVIT.  THE RECORD ALSO INDICATES THAT
THE AFFIDAVITS WERE SUPPLEMENTED BY ORALLY PRESENTING TO JUDGE SARAFITE
ALL OF THE EVIDENCE OBTAINED FROM THE NEYER EAVESDROP.  BUT ASSUMING
THAT THE STEINMAN COURT ORDER WAS ISSUED ON THE AFFIDAVITS ALONE, I AM
CONFIDENT THAT THOSE AFFIDAVITS ARE SUFFICIENT UNDER THE FOURTH
AMENDMENT. 

GOLDSTEIN'S AFFIDAVIT DESCRIBED WITH "PARTICULARITY" WHAT CRIME
GOLDSTEIN BELIEVED WAS BEING COMMITTED; IT REQUESTED AUTHORITY TO
SEARCH ONE SPECIFIC ROOM; IT DESCRIBED THE PRINCIPAL OBJECT OF THE
SEARCH - STEINMAN AND HIS CO-CONSPIRATORS - AND THE SPECIFIC
CONVERSATIONS WHICH THE AFFIANT HOPED TO SEIZE; IT GAVE A PRECISE TIME
LIMIT TO THE SEARCH; AND IT TOLD THE JUDGE THE MANNER IN WHICH THE
AFFIANT HAD ACQUIRED HIS INFORMATION.  PETITIONER ARGUES THAT THE
RELIABILITY OF THE NEYER EAVESDROP INFORMATION WAS NOT ADEQUATELY
VERIFIED IN THE STEINMAN AFFIDAVIT.  BUT THE NEYER EAVESDROP NEED NOT
BE EXPLAINED IN DETAIL IN AN APPLICATION TO THE VERY JUDGE WHO HAD
AUTHORIZED IT JUST TWO MONTHS PREVIOUSLY.  JUDGE SARAFITE HAD EVERY
REASON TO CONCLUDE THAT THE NEYER EAVESDROP WAS A RELIABLE BASIS FOR
SUSPECTING A CRIMINAL CONSPIRACY (CONSISTING AS THE RECORDING DID OF
ADMISSIONS BY STEINMAN AND OTHER CO-CONSPIRATORS) AND THAT IT WAS THE
SOURCE OF THE SPECIFIC EVIDENCE RECITED IN THE STEINMAN AFFIDAVITS. 
"AFFIDAVITS FOR SEARCH WARRANTS, SUCH AS THE ONE INVOLVED HERE, MUST BE
TESTED AND INTERPRETED BY MAGISTRATES AND COURTS IN A COMMONSENSE AND
REALISTIC FASHION," UNITED STATES V. VENTRESCA, 380 U.S. 102, 108.  I
CONCLUDE THAT THE STEINMAN AFFIDAVITS FULLY SATISFIED THE FOURTH
AMENDMENT REQUIREMENTS OF PROBABLE CAUSE AND PARTICULARLY IN THE
ISSUANCE OF SEARCH WARRANTS. 

THE COURT, HOWEVER, SEEMS IRRESISTIBLY DETERMINED TO STRIKE DOWN THE
NEW YORK STATUTE.  THE MAJORITY CRITICIZES THE EX PARTE NATURE OF SEC
813-A COURT ORDERS, THE LACK OF A REQUIREMENT THAT "EXIGENT
CIRCUMSTANCES" BE SHOWN, AND THE FACT THAT ONE COURT ORDER AUTHORIZES
"A SERIES OR A CONTINUOUS SURVEILLANCE."  BUT WHERE ARE SUCH SEARCH
WARRANT REQUIREMENTS TO BE FOUND IN THE FOURTH AMENDMENT OR IN ANY
PRIOR CASE CONSTRUING IT?  THE COURT APPEARS INTENT UPON CREATING OUT
OF WHOLE CLOTH NEW CONSTITUTIONALLY MANDATED WARRANT PROCEDURES
CAREFULLY TAILORED TO MAKE EAVESDROP WARRANTS UNOBTAINABLE.  THAT IS
NOT A JUDICIAL FUNCTION.  THE QUESTION HERE IS WHETHER THIS SEARCH
COMPLIED WITH FOURTH AMENDMENT STANDARDS.  THERE IS NO INDICATION IN
THIS RECORD THAT THE DISTRICT ATTORNEY'S OFFICE SEIZED AND USED
CONVERSATIONS NOT DESCRIBED IN THE GOLDSTEIN AFFIDAVIT, NOR THAT
OFFICIALS CONTINUED THE SEARCH AFTER THE TIME WHEN THEY HAD GATHERED
THE EVIDENCE WHICH THEY SOUGHT.  GIVEN THE CONSTITUTIONAL ADEQUACY OF
THE GOLDSTEIN AFFIDAVIT IN TERMS OF FOURTH AMENDMENT REQUIREMENTS OF
PROBABLE CAUSE AND PARTICULARITY, I CONCLUDE THAT BOTH THE SEARCH AND
SEIZURE IN STEINMAN'S OFFICE SATISFIED FOURTH AMENDMENT MANDATES. 
REGARDLESS OF HOW THE COURT WOULD LIKE EAVESDROPPING LEGISLATION TO
READ, OUR FUNCTION ENDS IN A STATE CASE WITH THE DETERMINATION OF THESE
QUESTIONS. 

                                             II. 

UNREGULATED USE OF ELECTRONIC SURVEILLANCE DEVICES BY LAW ENFORCEMENT
OFFICIALS AND BY PRIVATE PARTIES POSES A GRAVE THREAT TO THE PRIVACY
AND SECURITY OF OUR CITIZENS.  AS THE MAJORITY RECOGNIZES, NEW YORK IS
ONE OF A HANDFUL OF STATES THAT HAVE REACTED TO THIS THREAT BY ENACTING
LEGISLATION THAT LIMITS OFFICIAL USE OF ALL SUCH DEVICES TO SITUATIONS
WHERE DESIGNATED OFFICERS OBTAIN JUDICIAL AUTHORIZATION TO EAVESDROP. 
EXCEPT IN THESE STATES, THERE IS A SERIOUS LACK OF COMPREHENSIVE AND
SENSIBLE LEGISLATION IN THIS FIELD, A NEED THAT HAS BEEN NOTED BY MANY,
INCLUDING THE PRESIDENT'S PRESTIGIOUS COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE (THE "CRIME COMMISSION") IN ITS JUST
PUBLISHED REPORTS.  (FN3)  BILLS HAVE BEEN INTRODUCED AT THIS SESSION
OF CONGRESS TO FILL THIS LEGISLATIVE GAP, AND EXTENSIVE HEARINGS ARE IN
PROGRESS BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND
PROCEDURE OF THE SENATE COMMITTEE ON THE JUDICIARY, AND BEFORE
SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY. 

AT LEAST THREE POSITIONS HAVE BEEN PRESENTED AT THESE HEARINGS. 
OPPONENTS OF EAVESDROPPING AND WIRETAPPING ARGUE THAT THEY ARE SO
"ODIOUS" AN INVASION OF PRIVACY THAT THEY SHOULD NEVER BE TOLERATED. 
THE JUSTICE DEPARTMENT, IN ADVOCATING THE ADMINISTRATION'S CURRENT
POSITION, ASSERTS A MORE LIMITED VIEW; ITS BILL WOULD PROHIBIT ALL
WIRETAPPING AND EAVESDROPPING BY STATE AND FEDERAL AUTHORITIES EXCEPT
IN CASES INVOLVING THE "NATIONAL SECURITY," AND IN ADDITION WOULD BAN
JUDICIAL USE OF EVIDENCE GATHERED EVEN IN NATIONAL SECURITY CASES.  S.
928 AND H.R. 5386, 90TH CONG., 1ST SESS.  ADVOCATES OF A THIRD
POSITION, WHO INCLUDE MANY NEW YORK LAW ENFORCEMENT PERSONNEL AND
OTHERS, AGREE THAT OFFICIAL EAVESDROPPING AND WIRETAPPING MUST BE
STRINGENTLY CONTROLLED BUT ARGUE THAT SUCH METHODS ARE IRREPLACEABLE
INVESTIGATIVE TOOLS WHICH ARE NEEDED FOR THE ENFORCEMENT OF CRIMINAL
LAWS AND WHICH CAN BE ADEQUATELY REGULATED THROUGH LEGISLATION SUCH AS
NEW YORK'S SEC 813-A. 

THE GRANT OF CERTIORARI IN THIS CASE HAS BEEN WIDELY NOTED, AND OUR
DECISION CAN BE EXPECTED TO HAVE A SUBSTANTIAL IMPACT ON THE CURRENT
LEGISLATIVE CONSIDERATION OF THESE ISSUES.  TODAY'S MAJORITY DOES NOT,
IN SO MANY WORDS, HOLD THAT ALL WIRETAPPING AND EAVESDROPPING ARE
CONSTITUTIONALLY IMPERMISSIBLE.  BUT BY TRANSPARENT INDIRECTION IT
ACHIEVES PRACTICALLY THE SAME RESULT BY STRIKING DOWN THE NEW YORK
STATUTE AND IMPOSING A SERIES OF REQUIREMENTS FOR LEGALIZED ELECTRONIC
SURVEILLANCE THAT WILL BE ALMOST IMPOSSIBLE TO SATISFY. 

IN SO DOING, THE COURT IGNORES OR DISCOUNTS THE NEED FOR WIRETAPPING
AUTHORITY AND INCREDIBLY SUGGESTS THAT THERE HAS BEEN NO BREAKDOWN OF
FEDERAL LAW ENFORCEMENT DESPITE THE UNAVAILABILITY OF A FEDERAL STATUTE
LEGALIZING ELECTRONIC SURVEILLANCE.  THE COURT THEREBY IMPLIEDLY
DISAGREES WITH THE CAREFULLY DOCUMENTED REPORTS OF THE CRIME COMMISSION
WHICH, CONTRARY TO THE COURT'S INTIMATIONS, UNDERLINE THE SERIOUS
PROPORTIONS OF PROFESSIONAL CRIMINAL ACTIVITY IN THIS COUNTRY, THE
FAILURE OF CURRENT NATIONAL AND STATE EFFORTS TO ELIMINATE IT, AND THE
NEED FOR A STATUTE PERMITTING CAREFULLY CONTROLLED OFFICIAL USE OF
ELECTRONIC SURVEILLANCE, PARTICULARLY IN DEALING WITH ORGANIZED CRIME
AND OFFICIAL CORRUPTION.  SEE APPENDIX A, INFRA; REPORT OF THE CRIME
COMMISSION'S TASK FORCE ON ORGANIZED CRIME 17-19, 80, 91-113 (1967). 
HOW THE COURT CAN FEEL ITSELF SO MUCH BETTER QUALIFIED THAN THE
COMMISSION, WHICH SPENT MONTHS ON ITS STUDY, TO ASSESS THE NEEDS OF LAW
ENFORCEMENT IS BEYOND MY COMPREHENSION.  WE HAVE ONLY JUST DECIDED THAT
REASONABLENESS OF A SEARCH UNDER THE FOURTH AMENDMENT MUST BE
DETERMINED BY WEIGHING THE INVASIONS OF FOURTH AMENDMENT INTERESTS
WHICH WIRETAPPING AND EAVESDROPPING ENTAIL AGAINST THE PUBLIC NEED
JUSTIFYING SUCH INVASIONS.  CAMARA V. MUNICIPAL COURT, 387 U.S. 523;
SEE V. CITY OF SEATTLE, 387 U.S. 541.  IN THESE TERMS, IT WOULD SEEM
IMPERATIVE THAT THE COURT AT LEAST DEAL WITH FACTS OF THE REAL WORLD. 
THIS THE COURT UTTERLY FAILS TO DO.  IN MY VIEW, ITS OPINION IS WHOLLY
UNRESPONSIVE TO THE TEST OF REASONABLENESS UNDER THE FOURTH AMENDMENT. 

THE COURT ALSO SEEKS SUPPORT IN THE FACT THAT THE FEDERAL GOVERNMENT
DOES NOT NOW CONDONE ELECTRONIC EAVESDROPPING.  BUT HERE THE COURT IS
TREADING ON TREACHEROUS GROUND.  (FN4)  IT IS TRUE THAT THE DEPARTMENT
OF JUSTICE HAS NOW DISOWNED THE RELEVANT FINDINGS AND RECOMMENDATIONS
OF THE CRIME COMMISSION, SEE HEARINGS ON H.R. 5386 BEFORE SUBCOMMITTEE
NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 90TH CONG., 1ST SESS.,
SER.  3, AT 308 (1967)(HEREAFTER CITED AS "HOUSE HEARINGS"), AND THAT
IT HAS RECOMMENDED TO THE CONGRESS A BILL WHICH WOULD IMPOSE BROAD
PROHIBITIONS ON WIRETAPPING AND EAVESDROPPING.  BUT ALTHOUGH THE
DEPARTMENT'S COMMUNICATION TO THE CONGRESS SPEAKS OF "EXERCISING THE
FULL REACH OF OUR CONSTITUTIONAL POWERS TO OUTLAW ELECTRONIC
EAVESDROPPING ON PRIVATE CONVERSATIONS," (FN5) THE FACT IS, AS I HAVE
ALREADY INDICATED, THAT THE BILL DOES NOTHING OF THE KIND.  BOTH H.R.
5386 AND ITS COUNTERPART IN THE SENATE, S. 928, PROVIDE THAT THE
PROHIBITIONS IN THE BILL SHALL NOT BE DEEMED TO APPLY TO INTERCEPTIONS
IN NATIONAL SECURITY CASES.  APPARENTLY, UNDER THIS LEGISLATION, THE
PRESIDENT WITHOUT COURT ORDER WOULD BE PERMITTED TO AUTHORIZE
WIRETAPPING OR EAVESDROPPING "TO PROTECT THE NATION AGAINST ACTUAL OR
POTENTIAL ATTACK OR OTHER HOSTILE ACTS OF A FOREIGN POWER OR ANY OTHER
SERIOUS THREAT TO THE SECURITY OF THE UNITED STATES, OR TO PROTECT
NATIONAL SECURITY INFORMATION AGAINST FOREIGN INTELLIGENCE
ACTIVITIES."  H.R. 5386 AND S. 928, SEC 3.    THERE ARE SEVERAL
INTERESTING ASPECTS TO THIS PROPOSED NATIONAL SECURITY EXEMPTION IN
LIGHT OF THE COURT'S OPINION.  FIRST, THERE IS NO LIMITATION ON THE
PRESIDENT'S POWER TO DELEGATE HIS AUTHORITY, AND IT SEEMS LIKELY THAT
AT LEAST THE ATTORNEY GENERAL WOULD EXERCISE IT.  HOUSE HEARINGS, AT
302.  SECOND, THE NATIONAL SECURITY EXCEPTION WOULD REACH CASES LIKE
SABOTAGE AND INVESTIGATIONS OF ORGANIZATIONS CONTROLLED BY A FOREIGN
GOVERNMENT.  FOR EXAMPLE, WIRETAPPING TO PROVE AN INDIVIDUAL IS A
MEMBER OF THE COMMUNIST PARTY, IT IS SAID, WOULD BE PERMISSIBLE UNDER
THE STATUTE.  HOUSE HEARINGS, AT 292.  THIRD, INFORMATION FROM
AUTHORIZED SURVEILLANCE IN THE NATIONAL SECURITY AREA WOULD NOT BE
ADMISSIBLE IN EVIDENCE; TO THE CONTRARY, THE SURVEILLANCE WOULD
APPARENTLY BE FOR INVESTIGATIVE AND INFORMATIONAL USE ONLY, NOT FOR USE
IN A CRIMINAL PROSECUTION AND NOT AUTHORIZED BECAUSE OF ANY BELIEF OR
SUSPICION THAT A CRIME IS BEING COMMITTED OR IS ABOUT TO BE COMMITTED. 
HOUSE HEARINGS, AT 289.  FOURTH, THE DEPARTMENT OF JUSTICE HAS
RECOMMENDED THAT THE CONGRESS NOT AWAIT THIS COURT'S DECISION IN THE
CASE NOW BEFORE US BECAUSE WHETHER OR NOT THE COURT UPHOLDS THE NEW
YORK STATUTE THE POWER OF CONGRESS TO ENACT THE PROPOSED LEGISLATION
WOULD NOT BE AFFECTED.  HOUSE HEARINGS, AT 308.  BUT IF ELECTRONIC
SURVEILLANCE IS A "GENERAL SEARCH," OR IF IT MUST BE CIRCUMSCRIBED IN
THE MANNER THE COURT NOW SUGGESTS, HOW CAN SURREPTITIOUS ELECTRONIC
SURVEILLANCE OF SUSPECTED COMMUNIST OR A SUSPECTED SABOTEUR ESCAPE THE
STRICTURES OF THE FOURTH AMENDMENT?  IT SEEMS OBVIOUS FROM THE
DEPARTMENT OF JUSTICE BILL THAT THE PRESENT ADMINISTRATION BELIEVES
THAT THERE ARE SOME PURPOSES AND USES OF ELECTRONIC SURVEILLANCE WHICH
DO NOT INVOLVE VIOLATIONS OF THE FOURTH AMENDMENT BY THE EXECUTIVE
BRANCH.  SUCH BEING THE CASE, EVEN IF THE VIEWS OF THE EXECUTIVE WERE
TO BE THE FINAL ANSWER IN THIS CASE, THE REQUIREMENTS IMPOSED BY THE
COURT TO CONSTITUTIONALIZE WIRETAPPING AND EAVESDROPPING ARE A FAR CRY
FROM THE PRACTICE ANTICIPATED UNDER THE PROPOSED FEDERAL LEGISLATION
NOW BEFORE THE CONGRESS. 

BUT I DO NOT THINK THE VIEWS OF THE EXECUTIVE SHOULD BE DISPOSITIVE
OF THE BROADER FOURTH AMENDMENT ISSUES RAISED IN THIS CASE.  IF THE
SECURITY OF THE NATIONAL GOVERNMENT IS A SUFFICIENT INTEREST TO RENDER
EAVESDROPPING REASONABLE, ON WHAT TENABLE BASIS CAN A CONTRARY
CONCLUSION BE REACHED WHEN A STATE ASSERTS A PURPOSE TO PREVENT THE
CORRUPTION OF ITS MAJOR OFFICIALS, TO PROTECT THE INTEGRITY OF ITS
FUNDAMENTAL PROCESSES, AND TO MAINTAIN ITSELF AS A VIABLE INSTITUTION? 
THE SERIOUS THREAT WHICH ORGANIZED CRIME POSES TO OUR SOCIETY HAS BEEN
FREQUENTLY DOCUMENTED.  THE INTERRELATION BETWEEN ORGANIZED CRIME AND
CORRUPTION OF GOVERNMENTAL OFFICIALS IS LIKEWISE WELL ESTABLISHED,(FN6)
AND THE ENORMOUS DIFFICULTY OF ERADICATING BOTH FORMS OF SOCIAL CANCER
IS PROVED BY THE PERSISTENCE OF THE PROBLEMS IF BY NOTHING ELSE.  THE
CRIME COMMISSION HAS CONCLUDED THAT "ONLY IN NEW YORK HAVE LAW
ENFORCEMENT OFFICIALS BEEN ABLE TO MOUNT A RELATIVELY CONTINUOUS AND
RELATIVELY SUCCESSFUL ATTACK ON AN ORGANIZED CRIME PROBLEM," THAT
"ELECTRONIC SURVEILLANCE TECHNIQUES  ...  HAVE BEEN THE TOOLS" MAKING
POSSIBLE SUCH AN ATTACK, AND THAT PRACTICE UNDER NEW YORK'S SEC 813-A
HAS ACHIEVED A PROPER BALANCE BETWEEN THE INTERESTS OF "PRIVACY AND
JUSTICE."  TASK FORCE REPORT, AT 95.  AND NEW YORK COUNTY DISTRICT
ATTORNEY FRANK S. HOGAN, WHO HAS BEEN ON THE JOB ALMOST AS LONG AS ANY
MEMBER OF THIS COURT, HAS SAID OF THE NEED FOR LEGISLATION SIMILAR TO
SEC 813-A: 

"THE JUDICIALLY SUPERVISED SYSTEM UNDER WHICH WE OPERATE HAS WORKED. 
IT HAS SERVED EFFICIENTLY TO PROTECT THE RIGHTS, LIBERTIES, PROPERTY,
AND GENERAL WELFARE OF THE LAW-ABIDING MEMBERS OF OUR COMMUNITY.  IT
HAS PERMITTED US TO UNDERTAKE MAJOR INVESTIGATIONS OF ORGANIZED CRIME. 
WITHOUT IT, AND I CONFINE MYSELF TO TOP FIGURES IN THE UNDERWORLD, MY
OWN OFFICE COULD NOT HAVE CONVICTED CHARLES 'LUCKY' LUCIANO, JIMMY
HINES, LOUIS 'LEPKE' BUCHALTER, JACOB 'GURRAH' SHAPIRO, JOSEPH 'SOCKS'
LANZA, GEORGE SCALISE, FRANK ERICKSON, JOHN 'DIO' DIOGUARDI, AND FRANK
CARBO.  JOSEPH 'ADONIS' DOTO, WHO WAS TRIED IN NEW JERSEY, WAS
CONVICTED AND DEPORTED ON EVIDENCE SUPPLIED BY OUR OFFICE AND OBTAINED
BY ASSIDUOUSLY FOLLOWING LEADS SECURED THROUGH WIRETAPPING."  HEARINGS
ON S. 2813 BEFORE THE SENATE COMMITTEE ON THE JUDICIARY, 87TH CONG., 2D
SESS., AT 173 (1962). 

TO REBUT SUCH EVIDENCE OF THE REASONABLENESS OF REGULATED USE OF
OFFICIAL EAVESDROPPING, THE COURT PRESENTS ONLY OUTDATED STATISTICS ON
THE USE OF SEC 813-A IN THE ORGANIZED CRIME AND CORRUPTION ARENAS, THE
FAILURE OF THE CONGRESS THUS FAR TO ENACT SIMILAR LEGISLATION FOR
FEDERAL LAW ENFORCEMENT OFFICIALS, AND THE BLIND HOPE THAT OTHER
"TECHNIQUES AND PRACTICES MAY WELL BE DEVELOPED THAT WILL OPERATE JUST
AS SPEEDILY AND CERTAINLY."  NONE OF THIS IS EVEN REMOTELY RESPONSIVE
TO THE QUESTION WHETHER THE USE OF EAVESDROPPING TECHNIQUES TO UNVEIL
THE DEBILITATING CORRUPTION INVOLVED IN THIS CASE WAS REASONABLE UNDER
THE FOURTH AMENDMENT.  AT BEST, THE COURT PUTS FORTH AN APOLOGETIC AND
GROSSLY INADEQUATE JUSTIFICATION FOR FRUSTRATING NEW YORK LAW
ENFORCEMENT BY INVALIDATING SEC 813-A. 

IN ANY EVENT I DO NOT CONSIDER THIS CASE A PROPER VEHICLE FOR
RESOLVING ALL OF THESE BROAD CONSTITUTIONAL AND LEGISLATIVE ISSUES
RAISED BY THE PROBLEM OF OFFICIAL USE OF WIRETAPPING AND
EAVESDROPPING.  I WOULD HOLD ONLY THAT ELECTRONIC SURVEILLANCE WAS A
REASONABLE INVESTIGATIVE TOOL TO APPLY IN UNCOVERING CORRUPTION AMONG
HIGH STATE OFFICIALS, COMPARE OSBORN V. UNITED STATES, 385 U.S. 323,
THAT THE SEC 813-A COURT PROCEDURE AS USED IN THIS CASE SATISFIED THE
FOURTH AMENDMENT'S SEARCH WARRANT REQUIREMENTS, AND THAT NEW YORK
OFFICIALS LIMITED THEMSELVES TO A CONSTITUTIONALLY PERMISSIBLE SEARCH
AND SEIZURE OF PETITIONER'S PRIVATE CONVERSATIONS IN EXECUTING THAT
COURT ORDER.  THEREFORE, I WOULD AFFIRM. 

FN1  RECORDING AN INNOCENT CONVERSATION IS NO MORE A "SEIZURE" THAN
OCCURS WHEN THE POLICEMAN PERSONALLY OVERHEARS CONVERSATION WHILE
CONDUCTING A SEARCH WITH A WARRANT. 

FN2 PETITIONER HAS NOT INCLUDED A TRANSCRIPT OF THE NEYER RECORDING
IN THE RECORD BEFORE THIS COURT.  IN AN ORAL STATEMENT DURING THE
HEARING ON PETITIONER'S MOTION TO SUPPRESS EAVESDROP EVIDENCE, THE
PROSECUTOR STATED: 

"IN THE COURSE OF SOME OF THESE CONVERSATIONS (RECORDED BY THE NEYER
EAVESDROP), WE HAVE ONE-HALF OF A TELEPHONE CALL, OF SEVERAL TELEPHONE
CALLS BETWEEN MR. NEYER AND A PERSON HE REFERS TO ON THE TELEPHONE AS
MR. BERGER; AND IN THE CONVERSATION WITH MR. BERGER MR. NEYER DISCUSSES
ALSO THE OBTAINING OF A LIQUOR LICENSE FOR THE PALLADIUM AND MENTIONS
THE FACT THAT THIS IS GOING TO BE A BIG ONE."  R. AT 27. 

PETITIONER MADE NO ARGUMENT, AND OFFERED NO EVIDENCE, AT THE
SUPPRESSION HEARING THAT THE ALLEGED NEYER-BERGER PHONE CONVERSATION
PROVIDED THE STATE WITH EVIDENCE THAT WAS USED TO SECURE THE STEINMAN
EAVESDROP ORDER. 

FN3  THE PORTION OF THE CRIME COMMISSION'S REPORT DEALING WITH
WIRETAPPING AND EAVESDROPPING IS REPRODUCED IN APPENDIX A TO THIS
OPINION.  A MORE DETAILED EXPLANATION OF WHY MOST COMMISSION MEMBERS
FAVORED LEGISLATION PERMITTING CONTROLLED USE OF ELECTRONIC
SURVEILLANCE FOR LAW ENFORCEMENT PURPOSES CAN BE FOUND IN THE
COMMISSION'S TASK FORCE REPORT ON ORGANIZED CRIME, CITED INFRA. 

FN4  THE COURT SHOULD DRAW NO SUPPORT FROM THE SOLICITOR GENERAL'S
CONFESSION OF ERROR IN RECENT CASES, FOR THEY INVOLVED SURREPTITIOUS
EAVESDROPPING BY FEDERAL OFFICERS WITHOUT JUDICIAL AUTHORIZATION.  SUCH
SEARCHES ARE CLEARLY INVALID BECAUSE THEY VIOLATE THE FOURTH
AMENDMENT'S WARRANT REQUIREMENTS.  SILVERMAN V. UNITED STATES, SUPRA. 

FN5  LETTER FROM THE ACTING ATTORNEY GENERAL TO THE SPEAKER OF THE
HOUSE OF REPRESENTATIVES SUBMITTING THE ADMINISTRATION'S "RIGHT OF
PRIVACY ACT OF 1967" (H.R. 5386), FEB. 8, 1967. 

FN6  "ALL AVAILABLE DATA INDICATE THAT ORGANIZED CRIME FLOURISHES
ONLY WHERE IT HAS CORRUPTED LOCAL OFFICIALS.  AS THE SCOPE AND VARIETY
OF ORGANIZED CRIME'S ACTIVITIES HAVE EXPANDED, ITS NEED TO INVOLVE
PUBLIC OFFICIALS AT EVERY LEVEL OF LOCAL GOVERNMENT HAS GROWN.  AND AS
GOVERNMENT REGULATION EXPANDS INTO MORE AND MORE AREAS OF PRIVATE AND
BUSINESS ACTIVITY, THE POWER TO CORRUPT LIKEWISE AFFORDS THE CORRUPTER
MORE CONTROL OVER MATTERS AFFECTING THE EVERYDAY LIFE OF EACH
CITIZEN."  TASK FORCE REPORT, AT 6. 

APPENDIX TO OPINION OF MR. JUSTICE WHITE. 

EXCERPT FROM "THE CHALLENGE OF CRIME IN A FREE SOCIETY," A REPORT BY
THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, AT 200-203 (1967). 

A NATIONAL STRATEGY AGAINST ORGANIZED CRIME 

LAW ENFORCEMENT'S WAY OF FIGHTING ORGANIZED CRIME HAS BEEN PRIMITIVE
COMPARED TO ORGANIZED CRIME'S WAY OF OPERATING.  LAW ENFORCEMENT MUST
USE METHODS AT LEAST AS EFFICIENT AS ORGANIZED CRIME'S.  THE PUBLIC AND
LAW ENFORCEMENT MUST MAKE A FULL-SCALE COMMITMENT TO DESTROY THE POWER
OF ORGANIZED CRIME GROUPS.  THE COMMISSION'S PROGRAM INDICATES WAYS TO
IMPLEMENT THAT COMMITMENT. 

PROOF OF CRIMINAL VIOLATION 

THE PREVIOUS SECTION HAS DESCRIBED THE DIFFICULTIES THAT LAW
ENFORCEMENT AGENCIES MEET IN TRYING TO PROVE THE PARTICIPATION OF
ORGANIZED CRIME FAMILY MEMBERS IN CRIMINAL ACTS.  ALTHOUGH EARLIER
STUDIES INDICATED A NEED FOR NEW SUBSTANTIVE CRIMINAL LAWS, THE
COMMISSION BELIEVES THAT ON THE FEDERAL LEVEL, AND IN MOST STATE
JURISDICTIONS WHERE ORGANIZED CRIME EXISTS, THE MAJOR PROBLEM RELATES
TO MATTERS OF PROOF RATHER THAN INADEQUACY OF SUBSTANTIVE CRIMINAL
LAWS, AS THE LATTER - FOR THE MOST PART - ARE REASONABLY ADEQUATE TO
DEAL WITH ORGANIZED CRIME ACTIVITY.  THE LAWS OF CONSPIRACY HAVE
PROVIDED AN EFFECTIVE SUBSTANTIVE TOOL WITH WHICH TO CONFRONT THE
CRIMINAL GROUPS.  FROM A LEGAL STANDPOINT, ORGANIZED CRIME CONTINUES TO
GROW BECAUSE OF DEFECTS IN THE EVIDENCE-GATHERING PROCESS.  UNDER
PRESENT PROCEDURES, TOO FEW WITNESSES HAVE BEEN PRODUCED TO PROVE THE
LINK BETWEEN CRIMINAL GROUP MEMBERS AND THE ILLICIT ACTIVITIES THAT
THEY SPONSOR. 

GRAND JURIES.  A COMPULSORY PROCESS IS NECESSARY TO OBTAIN ESSENTIAL
TESTIMONY OR MATERIAL.  THIS IS MOST READILY ACCOMPLISHED BY AN
INVESTIGATIVE GRAND JURY OR AN ALTERNATE MECHANISM THROUGH WHICH THE
ATTENDANCE OF WITNESSES AND PRODUCTION OF BOOKS AND RECORDS CAN BE
ORDERED.  SUCH GRAND JURIES MUST STAY IN SESSION LONG ENOUGH TO ALLOW
FOR THE UNUSUALLY LONG TIME REQUIRED TO BUILD AN ORGANIZED CRIME CASE. 
THE POSSIBILITY OF ARBITRARY TERMINATION OF A GRAND JURY BY SUPERVISORY
JUDGES CONSTITUTES A DANGER TO SUCCESSFUL COMPLETION OF AN
INVESTIGATION. 

THE COMMISSION RECOMMENDS: 

AT LEAST ONE INVESTIGATIVE GRAND JURY SHOULD BE IMPANELED ANNUALLY IN
EACH JURISDICTION THAT HAS MAJOR ORGANIZED CRIME ACTIVITY. 

IF A GRAND JURY SHOWS THE COURT THAT ITS BUSINESS IS UNFINISHED AT
THE END OF A NORMAL TERM, THE COURT SHOULD EXTEND THAT TERM A
REASONABLE TIME IN ORDER TO ALLOW THE GRAND JURY TO COMPLETE PENDING
INVESTIGATIONS.  JUDICIAL DISMISSAL OF GRAND JURIES WITH UNFINISHED
BUSINESS SHOULD BE APPEALABLE BY THE PROSECUTOR AND PROVISION MADE FOR
SUSPENSION OF SUCH DISMISSAL ORDERS DURING THE APPEAL. 

THE AUTOMATIC CONVENING OF THESE GRAND JURIES WOULD FORCE LESS THAN
DILIGENT INVESTIGATORS AND PROSECUTORS TO EXPLAIN THEIR INACTION.  THE
GRAND JURY SHOULD ALSO HAVE RECOURSE WHEN NOT SATISFIED WITH SUCH
EXPLANATIONS. 

THE COMMISSION RECOMMENDS: 

THE GRAND JURY SHOULD HAVE THE STATUTORY RIGHT OF APPEAL TO AN
APPROPRIATE EXECUTIVE OFFICIAL, SUCH AS AN ATTORNEY GENERAL OR
GOVERNOR, TO REPLACE LOCAL PROSECUTORS OR INVESTIGATORS WITH SPECIAL
COUNSEL OR SPECIAL INVESTIGATORS APPOINTED ONLY IN RELATION TO MATTERS
THAT THEY OR THE GRAND JURY DEEM APPROPRIATE FOR INVESTIGATION. 

WHEN A GRAND JURY TERMINATES, IT SHOULD BE PERMITTED BY LAW TO FILE
PUBLIC REPORTS REGARDING ORGANIZED CRIME CONDITIONS IN THE COMMUNITY. 

IMMUNITY.  A GENERAL IMMUNITY STATUTE AS PROPOSED IN CHAPTER 5 ON THE
COURTS IS ESSENTIAL IN ORGANIZED CRIME INVESTIGATIONS AND
PROSECUTIONS.  THERE IS EVIDENCE TO INDICATE THAT THE AVAILABILITY OF
IMMUNITY CAN OVERCOME THE WALL OF SILENCE THAT SO OFTEN DEFEATS THE
EFFORTS OF LAW ENFORCEMENT TO OBTAIN LIVE WITNESSES IN ORGANIZED CRIME
CASES.  SINCE THE ACTIVITIES OF CRIMINAL GROUPS INVOLVE SUCH A BROAD
SCOPE OF CRIMINAL VIOLATIONS, IMMUNITY PROVISIONS COVERING THIS BREADTH
OF ILLICIT ACTIONS ARE NECESSARY TO SECURE THE TESTIMONY OF
UNCOOPERATIVE OR CRIMINALLY INVOLVED WITNESSES.  ONCE GRANTED IMMUNITY
FROM PROSECUTION BASED UPON THEIR TESTIMONY, SUCH WITNESSES MUST
TESTIFY BEFORE THE GRAND JURY AND AT TRIAL, OR FACE JAIL FOR CONTEMPT
OF COURT. 

FEDERAL, STATE, AND LOCAL COORDINATION OF IMMUNITY GRANTS, AND
APPROVAL BY THE JURISDICTION'S CHIEF LAW ENFORCEMENT OFFICER BEFORE
IMMUNITY IS GRANTED, ARE CRUCIAL IN ORGANIZED CRIME INVESTIGATIONS. 
OTHERWISE, WITHOUT SUCH COORDINATION AND APPROVAL, OR THROUGH
CORRUPTION OF OFFICIALS, ONE JURISDICTION MIGHT GRANT IMMUNITY TO
SOMEONE ABOUT TO BE ARRESTED OR INDICTED IN ANOTHER JURISDICTION. 

THE COMMISSION RECOMMENDS: 

A GENERAL WITNESS IMMUNITY STATUTE SHOULD BE ENACTED AT FEDERAL AND
STATE LEVELS, PROVIDING IMMUNITY SUFFICIENTLY BROAD TO ASSURE
COMPULSION OF TESTIMONY.  IMMUNITY SHOULD BE GRANTED ONLY WITH THE
PRIOR APPROVAL OF THE JURISDICTION'S CHIEF PROSECUTING OFFICER. 
EFFORTS TO COORDINATE FEDERAL, STATE, AND LOCAL IMMUNITY GRANTS SHOULD
BE MADE TO PREVENT INTERFERENCE WITH EXISTING INVESTIGATIONS. 

PERJURY.  MANY PROSECUTORS BELIEVE THAT THE INCIDENCE OF PERJURY IS
HIGHER IN ORGANIZED CRIME CASES THAN IN ROUTINE CRIMINAL MATTERS. 
IMMUNITY CAN BE AN EFFECTIVE PROSECUTIVE WEAPON ONLY IF THE IMMUNIZED
WITNESS THEN TESTIFIES TRUTHFULLY.  THE PRESENT SPECIAL PROOF
REQUIREMENTS IN PERJURY CASES, DETAILED IN CHAPTER 5, INHIBIT
PROSECUTORS FROM SEEKING PERJURY INDICTMENTS AND LEAD TO MUCH LOWER
CONVICTION RATES FOR PERJURY THAN FOR OTHER CRIMES.  LESSENING OF RIGID
PROOF REQUIREMENTS IN PERJURY PROSECUTIONS WOULD STRENGTHEN THE
DETERRRENT VALUE OF PERJURY LAWS AND PRESENT A GREATER INCENTIVE FOR
TRUTHFUL TESTIMONY.    THE COMMISSION RECOMMENDS: 

CONGRESS AND THE STATES SHOULD ABOLISH THE RIGID TWO-WITNESS AND
DIRECT-EVIDENCE RULES IN PERJURY PROSECUTION, BUT RETAIN THE
REQUIREMENT OF PROVING AN INTENTIONAL FALSE STATEMENT. 

WIRETAPPING AND EAVESDROPPING 

IN CONNECTION WITH THE PROBLEMS OF SECURING EVIDENCE AGAINST ORGANIZED
CRIME, THE COMMISSION CONSIDERED ISSUES RELATING TO ELECTRONIC
SURVEILLANCE, INCLUDING WIRETAPPING AND "BUGGING" - THE SECRET
INSTALLATION OF MECHANICAL DEVICES AT SPECIFIC LOCATIONS TO RECEIVE AND
TRANSMIT CONVERSATIONS. 

SIGNIFICANCE TO LAW ENFORCEMENT.  THE GREAT MAJORITY OF LAW
ENFORCEMENT OFFICIALS BELIEVE THAT THE EVIDENCE NECESSARY TO BRING
CRIMINAL SANCTIONS TO BEAR CONSISTENTLY ON THE HIGHER ECHELONS OF
ORGANIZED CRIME WILL NOT BE OBTAINED WITHOUT THE AID OF ELECTRONIC
SURVEILLANCE TECHNIQUES.  THEY MAINTAIN THESE TECHNIQUES ARE
INDISPENSABLE TO DEVELOP ADEQUATE STRATEGIC INTELLIGENCE CONCERNING
ORGANIZED CRIME, TO SET UP SPECIFIC INVESTIGATIONS, TO DEVELOP
WITNESSES, TO CORROBORATE THEIR TESTIMONY, AND TO SERVE AS SUBSTITUTES
FOR THEM - EACH A NECESSARY STEP IN THE EVIDENCE-GATHERING PROCESS IN
ORGANIZED CRIME INVESTIGATIONS AND PROSECUTIONS. 

AS PREVIOUSLY NOTED, THE ORGANIZATIONAL STRUCTURE AND OPERATIONAL
METHODS EMPLOYED BY ORGANIZED CRIME HAVE CREATED UNIQUE PROBLEMS FOR
LAW ENFORCEMENT.  HIGHRANKING ORGANIZED CRIME FIGURES ARE PROTECTED BY
LAYERS OF INSULATION FROM DIRECT PARTICIPATION IN CRIMINAL ACTS, AND A
RIGID CODE OF DISCIPLINE INHIBITS THE DEVELOPMENT OF INFORMANTS AGAINST
THEM.  A SOLDIER IN A FAMILY CAN COMPLETE HIS ENTIRE CRIME CAREER
WITHOUT EVER ASSOCIATING DIRECTLY WITH HIS BOSS.  THUS, HE IS UNABLE,
EVEN IF WILLING, TO LINK THE BOSS DIRECTLY TO ANY CRIMINAL ACTIVITY IN
WHICH HE MAY HAVE ENGAGED FOR THEIR MUTUAL BENEFIT.  AGENTS AND
EMPLOYEES OF AN ORGANIZED CRIME FAMILY, EVEN WHEN GRANTED IMMUNITY FROM
PROSECUTION, CANNOT IMPLICATE THE HIGHEST LEVEL FIGURES, SINCE
FREQUENTLY THEY HAVE NEITHER SPOKEN TO, NOR EVEN SEEN THEM. 

MEMBERS OF THE UNDERWORLD, WHO HAVE LEGITIMATE REASON TO FEAR THAT
THEIR MEETINGS MIGHT BE BUGGED OR THEIR TELEPHONES TAPPED, HAVE
CONTINUED TO MEET AND TO MAKE RELATIVELY FREE USE OF THE TELEPHONE -
FOR COMMUNICATION IS ESSENTIAL TO THE OPERATION OF ANY BUSINESS
ENTERPRISE.  IN LEGITIMATE BUSINESS THIS IS ACCOMPLISHED WITH WRITTEN
AND ORAL EXCHANGES.  IN ORGANIZED CRIME ENTERPRISES, HOWEVER, THE
POSSIBILITY OF LOSS OR SEIZURE OF AN INCRIMINATING DOCUMENT DEMANDS A
MINIMUM OF WRITTEN COMMUNICATION.  BECAUSE OF THE VARIED CHARACTER OF
ORGANIZED CRIMINAL ENTERPRISES, THE LARGE NUMBERS OF PERSONS EMPLOYED
IN THEM, AND FREQUENTLY THE DISTANCES SEPARATING ELEMENTS OF THE
ORGANIZATION, THE TELEPHONE REMAINS AN ESSENTIAL VEHICLE FOR
COMMUNICATION.  WHILE DISCUSSIONS OF BUSINESS MATTERS ARE HELD ON A
FACE-TO-FACE BASIS WHENEVER POSSIBLE, THEY ARE NEVER CONDUCTED IN THE
PRESENCE OF STRANGERS.  THUS, THE CONTENT OF THESE CONVERSATIONS,
INCLUDING THE PLANNING OF NEW ILLEGAL ACTIVITY, AND TRANSMISSION OF
POLICY DECISIONS OR OPERATING INSTRUCTIONS FOR EXISTING ENTERPRISES,
CANNOT BE DETECTED.  THE EXTREME SCRUTINY TO WHICH POTENTIAL MEMBERS
ARE SUBJECTED AND THE NECESSITY FOR THEM TO ENGAGE IN CRIMINAL ACTIVITY
HAVE PRECLUDED LAW ENFORCEMENT INFILTRATION OF ORGANIZED CRIME GROUPS. 

DISTRICT ATTORNEY FRANK S. HOGAN, WHOSE NEW YORK COUNTY OFFICE HAS
BEEN ACKNOWLEDGED FOR OVER 27 YEARS AS ONE OF THE COUNTRY'S MOST
OUTSTANDING, HAS TESTIFIED THAT ELECTRONIC SURVEILLANCE IS: 

THE SINGLE MOST VALUABLE WEAPON IN LAW ENFORCEMENT'S FIGHT AGAINST
ORGANIZED CRIME  ...  .  IT HAS PERMITTED US TO UNDERTAKE MAJOR
INVESTIGATIONS OF ORGANIZED CRIME.  WITHOUT IT, AND I CONFINE MYSELF TO
TOP FIGURES IN THE UNDERWORLD, MY OWN OFFICE WOULD NOT HAVE CONVICTED
CHARLES "LUCKY" LUCIANO, JIMMY HINES, LOUIS "LEPKE" BUCHALTER, JACOB
"GURRAH" SHAPIRO, JOSEPH "SOCKS" LANZA, GEORGE SCALISE, FRANK ERICKSON,
JOHN "DIO" DIOGUARDI, AND FRANK CARBO  ...  . 

OVER THE YEARS NEW YORK HAS FACED ONE OF THE NATION'S MOST AGGRAVATED
ORGANIZED CRIME PROBLEMS.  ONLY IN NEW YORK HAVE LAW ENFORCEMENT
OFFICIALS ACHIEVED SOME LEVEL OF CONTINUOUS SUCCESS IN BRINGING
PROSECUTIONS AGAINST ORGANIZED CRIME.  FOR OVER 20 YEARS, NEW YORK HAS
AUTHORIZED WIRETAPPING ON COURT ORDER.  SINCE 1957, BUGGING HAS BEEN
SIMILARLY AUTHORIZED.  WIRETAPPING WAS THE MAINSTAY OF THE NEW YORK
ATTACK AGAINST ORGANIZED CRIME UNTIL FEDERAL COURT DECISIONS
INTERVENED.  RECENTLY CHIEF RELIANCE IN SOME OFFICES HAS BEEN PLACED ON
BUGGING, WHERE THE INFORMATION IS TO BE USED IN COURT.  LAW ENFORCEMENT
OFFICIALS BELIEVE THAT THE SUCCESSES ACHIEVED IN SOME PARTS OF THE
STATE ARE ATTRIBUTABLE PRIMARILY TO A COMBINATION OF DEDICATED AND
COMPETENT PERSONNEL AND ADEQUATE LEGAL TOOLS; AND THAT THE FAILURE TO
DO MORE IN NEW YORK HAS RESULTED PRIMARILY FROM THE FAILURE TO COMMIT
ADDITIONAL RESOURCES OF TIME AND MEN.  THE DEBILITATING EFFECT OF
CORRUPTION, POLITICAL INFLUENCE, AND INCOMPETENCE, UNDERSCORED BY THE
NEW YORK STATE COMMISSION OF INVESTIGATION, MUST ALSO BE NOTED. 

IN NEW YORK AT ONE TIME, COURT SUPERVISION OF LAW ENFORCEMENT'S USE
OF ELECTRONIC SURVEILLANCE WAS SOMETIMES PERFUNCTORY, BUT THE PICTURE
HAS CHANGED SUBSTANTIALLY UNDER THE IMPACT OF PRETRIAL ADVERSARY
HEARINGS ON MOTIONS TO SUPPRESS ELECTRONICALLY SEIZED EVIDENCE. 
FIFTEEN YEARS AGO THERE WAS EVIDENCE OF ABUSE BY LOW-RANK POLICEMEN. 
LEGISLATIVE AND ADMINISTRATIVE CONTROLS, HOWEVER, HAVE APPARENTLY BEEN
SUCCESSFUL IN CURTAILING ITS INCIDENCE. 

THE THREAT TO PRIVACY.  IN A DEMOCRATIC SOCIETY PRIVACY OF
COMMUNICATION IS ESSENTIAL IF CITIZENS ARE TO THINK AND ACT CREATIVELY
AND CONSTRUCTIVELY.  FEAR OR SUSPICION THAT ONE'S SPEECH IS BEING
MONITORED BY A STRANGER, EVEN WITHOUT THE REALITY OF SUCH ACTIVITY, CAN
HAVE A SERIOUSLY INHIBITING EFFECT UPON THE WILLINGNESS TO VOICE
CRITICAL AND CONSTRUCTIVE IDEAS.  WHEN DISSENT FROM THE POPULAR VIEW IS
DISCOURAGED, INTELLECTUAL CONTROVERSY IS SMOTHERED, THE PROCESS FOR
TESTING NEW CONCEPTS AND IDEAS IS HINDERED AND DESIRABLE CHANGE IS
SLOWED.  EXTERNAL RESTRAINTS, OF WHICH ELECTRONIC SURVEILLANCE IS BUT
ONE POSSIBILITY, ARE THUS REPUGNANT TO CITIZENS OF SUCH A SOCIETY. 

TODAY, IN ADDITION TO SOME LAW ENFORCEMENT AGENTS, NUMEROUS PRIVATE
PERSONS ARE UTILIZING THESE TECHNIQUES.  THEY ARE EMPLOYED TO ACQUIRE
EVIDENCE FOR DOMESTIC RELATIONS CASES, TO CARRY ON INDUSTRIAL ESPIONAGE
AND COUNTER-ESPIONAGE, TO ASSIST IN PREPARING FOR CIVIL LITIGATION, AND
FOR PERSONNEL INVESTIGATIONS, AMONG OTHERS.  TECHNOLOGICAL ADVANCES
HAVE PRODUCED REMARKABLY SOPHISTICATED DEVICES, OF WHICH THE ELECTRONIC
COCKTAIL OLIVE IS ILLUSTRATIVE, AND CONTINUING PRICE REDUCTIONS HAVE
EXPANDED THEIR MARKETS.  NOR HAS MAN'S INGENUITY IN THE DEVELOPMENT OF
SURVEILLANCE EQUIPMENT BEEN EXHAUSTED WITH THE DESIGN AND MANUFACTURE
OF ELECTRONIC DEVICES FOR WIRETAPPING OR FOR EAVESDROPPING WITHIN
BUILDINGS OR VEHICLES.  PARABOLIC MICROPHONES THAT PICK UP
CONVERSATIONS HELD IN THE OPEN AT DISTANCES OF HUNDREDS OF FEET ARE
AVAILABLE COMMERCIALLY, AND SOME PROGRESS HAS BEEN MADE TOWARD
UTILIZING THE LASER BEAM TO PICK UP CONVERSATIONS WITHIN A ROOM BY
FOCUSING UPON THE GLASS OF A CONVENIENT WINDOW.  PROGRESS IN
MICROMINIATURIZING ELECTRONIC COMPONENTS HAS RESULTED IN THE PRODUCTION
OF EQUIPMENT OF EXTREMELY SMALL SIZE.  BECAUSE IT CAN DETECT WHAT IS
SAID ANYWHERE - NOT JUST ON THE TELEPHONE - BUGGING PRESENTS ESPECIALLY
SERIOUS THREATS TO PRIVACY. 

DETECTION OF SURVEILLANCE DEVICES IS DIFFICULT, PARTICULARLY WHERE AN
INSTALLATION IS ACCOMPLISHED BY A SKILLED AGENT.  ISOLATED INSTANCES
WHERE EQUIPMENT IS DISCOVERED IN OPERATION THEREFORE DO NOT ADEQUATELY
REFLECT THE VOLUME OF SUCH ACITVITY; THE EFFECTIVENESS OF ELECTRONIC
SURVEILLANCE DEPENDS IN PART UPON INVESTIGATORS WHO DO NOT DISCUSS
THEIR ACTIVITIES.  THE CURRENT CONFUSION OVER THE LEGALITY OF
ELECTRONIC SURVEILLANCE COMPOUNDS THE ASSESSMENT PROBLEM SINCE MANY
AGENTS FEEL THEIR CONDUCT MAY BE HELD UNLAWFUL AND ARE UNWILLING TO
REPORT THEIR ACTIVITIES.  IT IS PRESENTLY IMPOSSIBLE TO ESTIMATE WITH
ANY ACCURACY THE VOLUME OF ELECTRONIC SURVEILLANCE CONDUCTED TODAY. 
THE COMMISSION IS IMPRESSED, HOWEVER, WITH THE OPINIONS OF
KNOWLEDGEABLE PERSONS THAT THE INCIDENCE OF ELECTRONIC SURVEILLANCE IS
ALREADY SUBSTANTIAL AND INCREASING AT A RAPID RATE. 

PRESENT LAW AND PRACTICE.  IN 1928 THE U.S. SUPREME COURT DECIDED
THAT EVIDENCE OBTAINED BY WIRETAPPING A DEFENDANT'S TELEPHONE AT A
POINT OUTSIDE THE DEFENDANT'S PREMISES WAS ADMISSIBLE IN A FEDERAL
CRIMINAL PROSECUTION.  THE COURT FOUND NO UNCONSTITUTIONAL SEARCH AND
SEIZURE UNDER THE FOURTH AMENDMENT.  ENACTMENT OF SECTION 605 OF THE
FEDERAL COMMUNICATIONS ACT IN 1934 PRECLUDED INTERCEPTION AND
DISCLOSURE OF WIRE COMMUNICATIONS.  THE DEPARTMENT OF JUSTICE HAS
INTERPRETED THIS SECTION TO PERMIT INTERCEPTION SO LONG AS NO
DISCLOSURE OF THE CONTENT OUTSIDE THE DEPARTMENT IS MADE.  THUS,
WIRETAPPING MAY PRESENTLY BE CONDUCTED BY A FEDERAL AGENT, BUT THE
RESULTS MAY NOT BE USED IN COURT.  WHEN POLICE OFFICERS WIRETAP AND
DISCLOSE THE INFORMATION OBTAINED, IN ACCORDANCE WITH STATE PROCEDURE,
THEY ARE IN VIOLATION OF FEDERAL LAW. 

LAW ENFORCEMENT EXPERIENCE WITH BUGGING HAS BEEN MUCH MORE RECENT AND
MORE LIMITED THAN THE USE OF THE TRADITIONAL WIRETAP.  THE LEGAL
SITUATION WITH RESPECT TO BUGGING IS ALSO DIFFERENT.  THE REGULATION OF
THE NATIONAL TELEPHONE COMMUNICATION NETWORK FALLS WITHIN RECOGNIZED
NATIONAL POWERS, WHILE LEGISLATION ATTEMPTING TO AUTHORIZE THE PLACING
OF ELECTRONIC EQUIPMENT EVEN UNDER A WARRANT SYSTEM WOULD BREAK NEW AND
UNCHARTED GROUND.  AT THE PRESENT TIME THERE IS NO FEDERAL LEGISLATION
EXPLICITLY DEALING WITH BUGGING.  SINCE THE DECISION OF THE SUPREME
COURT IN SILVERMAN V. UNITED STATES, 365 U.S. 505 (1961), USE OF
BUGGING EQUIPMENT THAT INVOLVES AN UNAUTHORIZED PHYSICAL ENTRY INTO A
CONSTITUTIONALLY PROTECTED PRIVATE AREA VIOLATES THE FOURTH AMENDMENT,
AND EVIDENCE THUS OBTAINED IS INADMISSIBLE.  IF EAVESDROPPING IS
UNACCOMPANIED BY SUCH A TRESPASS, OR IF THE COMMUNICATION IS RECORDED
WITH THE CONSENT OF ONE OF THE PARTIES, NO SUCH PROHIBITION APPLIES. 

THE CONFUSION THAT HAS ARISEN INHIBITS COOPERATION BETWEEN STATE AND
FEDERAL LAW ENFORCEMENT AGENCIES BECAUSE OF THE FEAR THAT INFORMATION
SECURED IN ONE INVESTIGATION WILL LEGALLY POLLUTE ANOTHER.  FOR
EXAMPLE, IN NEW YORK CITY PROSECUTORS REFUSE TO DIVULGE THE CONTENTS OF
WIRE COMMUNICATIONS INTERCEPTED PURSUANT TO STATE COURT ORDERS BECAUSE
OF THE FEDERAL PROSCRIPTION BUT DO UTILIZE EVIDENCE OBTAINED BY BUGGING
PURSUANT TO COURT ORDER.  IN OTHER SECTIONS OF NEW YORK STATE, HOWEVER,
PROSECUTORS CONTINUE TO INTRODUCE BOTH WIRETAPPING AND EAVESDROPPING
EVIDENCE AT TRIAL. 

DESPITE THE CLEAR FEDERAL PROHIBITION AGAINST DISCLOSURE OF WIRETAP
INFORMATION NO FEDERAL PROSECUTIONS OF STATE OFFICERS HAVE BEEN
UNDERTAKEN, ALTHOUGH PROSECUTIONS OF STATE OFFICERS UNDER STATE LAWS
HAVE OCCURRED. 

ONE OF THE MOST SERIOUS CONSEQUENCES OF THE PRESENT STATE OF THE LAW
IS THAT PRIVATE PARTIES AND SOME LAW ENFORCEMENT OFFICERS ARE INVADING
THE PRIVACY OF MANY CITIZENS WITHOUT CONTROL FROM THE COURTS AND
REASONABLE LEGISLATIVE STANDARDS.  WHILE THE FEDERAL PROHIBITION IS A
PARTIAL DETERRENT AGAINST DIVULGENCE, IT HAS NO EFFECT ON INTERCEPTION,
AND THE LACK OF PROSECUTIVE ACTION AGAINST VIOLATORS HAS SUBSTANTIALLY
REDUCED RESPECT FOR THE LAW. 

THE PRESENT STATUS OF THE LAW WITH RESPECT TO WIRETAPPING AND BUGGING
IS INTOLERABLE.  IT SERVES THE INTERESTS NEITHER OF PRIVACY NOR OF LAW
ENFORCEMENT.  ONE WAY OR THE OTHER, THE PRESENT CONTROVERSY WITH
RESPECT TO ELECTRONIC SURVEILLANCE MUST BE RESOLVED. 

THE COMMISSION RECOMMENDS: 

CONGRESS SHOULD ENACT LEGISLATION DEALING SPECIFICALLY WITH
WIRETAPPING AND BUGGING. 

ALL MEMBERS OF THE COMMISSION AGREE ON THE DIFFICULTY OF STRIKING THE
BALANCE BETWEEN LAW ENFORCEMENT BENEFITS FROM THE USE OF ELECTRONIC
SURVEILLANCE AND THE THREAT TO PRIVACY ITS USE MAY ENTAIL.  FURTHER,
STRIKING THIS BALANCE PRESENTS IMPORTANT CONSTITUTIONAL QUESTIONS NOW
PENDING BEFORE THE U.S. SUPREME COURT IN PEOPLE V. BERGER, AND ANY
CONGRESSIONAL ACTION SHOULD AWAIT THE OUTCOME OF THAT CASE. 

ALL MEMBERS OF THE COMMISSION BELIEVE THAT IF AUTHORITY TO EMPLOY
THESE TECHNIQUES IS GRANTED IT MUST BE GRANTED ONLY WITH STRINGENT
LIMITATIONS.  ONE FORM OF DETAILED REGULATORY STATUTE THAT HAS BEEN
SUGGESTED TO THE COMMISSION IS OUTLINED IN THE APPENDIX TO THE
COMMISSION'S ORGANIZED CRIME TASK FORCE VOLUME.  ALL PRIVATE USE OF
ELECTRONIC SURVEILLANCE SHOULD BE PLACED UNDER RIGID CONTROL, OR IT
SHOULD BE OUTLAWED. 

A MAJORITY OF THE MEMBERS OF THE COMMISSION BELIEVE THAT LEGISLATION
SHOULD BE ENACTED GRANTING CAREFULLY CIRCUMSCRIBED AUTHORITY FOR
ELECTRONIC SURVEILLANCE TO LAW ENFORCEMENT OFFICERS TO THE EXTENT IT
MAY BE CONSISTENT WITH THE DECISION OF THE SUPREME COURT IN PEOPLE V.
BERGER, AND, FURTHER, THAT THE AVAILABILITY OF SUCH SPECIFIC AUTHORITY
WOULD SIGNIFICANTLY REDUCE THE INCENTIVE FOR, AND THE INCIDENCE OF,
IMPROPER ELECTRONIC SURVEILLANCE. 

THE OTHER MEMBERS OF THE COMMISSION HAVE SERIOUS DOUBTS ABOUT THE
DESIRABILITY OF SUCH AUTHORITY AND BELIEVE THAT WITHOUT THE KIND OF
SEARCHING INQUIRY THAT WOULD RESULT FROM FURTHER CONGRESSIONAL
CONSIDERATION OF ELECTRONIC SURVEILLANCE, PARTICULARLY OF THE PROBLEMS
OF BUGGING, THERE IS INSUFFICIENT BASIS TO STRIKE THIS BALANCE AGAINST
THE INTERESTS OF PRIVACY. 

MATTERS AFFECTING THE NATIONAL SECURITY NOT INVOLVING CRIMINAL
PROSECUTION ARE OUTSIDE THE COMMISSION'S MANDATE, AND NOTHING IN THIS
DISCUSSION IS INTENDED TO AFFECT THE EXISTING POWERS TO PROTECT THAT
INTEREST. 
..END :


















CURTIS PUBLISHING CO. V. BUTTS 388 U.S. 130 


NO. 37.  ARGUED FEBRUARY 23, 1967.  - DECIDED JUNE 12, 1967.* NO. 37,
351 F.2D 702, AFFIRMED; NO. 150, 393, S.W.2D 671, REVERSED AND
REMANDED. 

*TOGETHER WITH NO. 150, ASSOCIATED PRESS V. WALKER, ON CERTIORARI TO
THE COURT OF CIVIL APPEALS OF TEXAS, 2D SUPREME JUDICIAL DISTRICT. 


IN NO. 37, RESPONDENT BROUGHT A DIVERSITY LIBEL ACTION IN FEDERAL
COURT SEEKING COMPENSATORY AND PUNITIVE DAMAGES FOR AN ARTICLE WHICH
WAS PUBLISHED IN PETITIONER'S MAGAZINE ACCUSING RESPONDENT OF
CONSPIRING TO "FIX" A FOOTBALL GAME BETWEEN THE UNIVERSITY OF ALABAMA
AND THE UNIVERSITY OF GEORGIA, WHERE HE WAS PRIVATELY EMPLOYED AS THE
ATHLETIC DIRECTOR.  THE ARTICLE WAS BASED UPON AN AFFIDAVIT CONCERNING
A TELEPHONE CONVERSATION BETWEEN RESPONDENT AND THE ALABAMA COACH WHICH
THE AFFIANT, BURNETT, HAD ACCIDENTALLY OVERHEARD.  RESPONDENT
CHALLENGED THE TRUTH OF THE ARTICLE AND CLAIMED A SERIOUS DEPARTURE BY
THE MAGAZINE FROM GOOD INVESTIGATIVE STANDARDS OF THE ACCURACY OF ITS
CHARGES AMOUNTING TO RECKLESS AND WANTON CONDUCT.  HE SUBMITTED
EVIDENCE AT THE TRIAL SHOWING, INTER ALIA, THAT PETITIONER'S MAGAZINE,
WHICH HAD INSTITUTED A POLICY OF "SOPHISTICATED MUCKRAKING," KNEW THAT
BURNETT WAS ON CRIMINAL PROBATION BUT HAD PUBLISHED THE STORY WITHOUT
ANY INDEPENDENT SUPPORT FOR HIS AFFIDAVIT; THAT IT DID NOT BEFORE
PUBLICATION VIEW HIS NOTES (THE INFORMATION IN WHICH, IF NOT VALUELESS,
WOULD BE READILY AVAILABLE TO ANY COACH); THAT THE MAGAZINE DID NOT
INTERVIEW A PERSON WITH BURNETT WHEN THE PHONE CALL WAS OVERHEARD, VIEW
THE GAME FILMS, OR CHECK FOR ANY ADJUSTMENTS IN ALABAMA'S PLANS AFTER
THE INFORMATION WAS DIVULGED; AND THAT THE MAGAZINE ASSIGNED THE STORY
TO A WRITER NOT A FOOTBALL EXPERT AND MADE NO EFFORT TO HAVE SUCH AN
EXPERT CHECK THE STORY.  THE JURY WAS INSTRUCTED ON THE ISSUE OF TRUTH
AS A DEFENSE AND WAS ALSO INSTRUCTED THAT IT COULD AWARD PUNITIVE
DAMAGES AND COULD ASSESS THE RELIABILITY AND THE NATURE OF THE SOURCES
OF THE MAGAZINE'S INFORMATION AND ITS CARE IN CHECKING THE ASSERTIONS,
CONSIDERATIONS RELEVANT TO DETERMINING WHETHER THE MAGAZINE HAD
PROCEEDED WITH "WANTON AND RECKLESS INDIFFERENCE."  THE JURY RETURNED A
VERDICT OF GENERAL AND PUNITIVE DAMAGES WHICH WAS REDUCED BY
REMITTITUR.  THE TRIAL COURT REJECTED THE DEFENSE'S NEW TRIAL MOTION
BASED ON NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (WHICH WAS
DECIDED AFTER THE FILING OF THE COMPLAINT IN AND TRIAL OF THIS CASE),
HOLDING THAT DECISION INAPPLICABLE TO ONE LIKE PETITIONER NOT A PUBLIC
OFFICIAL.  IT ALSO HELD THE EVIDENCE AMPLY SUPPORTED THE CONCLUSION
THAT THE MAGAZINE HAD ACTED IN RECKLESS DISREGARD OF WHETHER THE
ARTICLE WAS FALSE OR NOT.  THE COURT OF APPEALS AFFIRMED ON THE
MERITS.  IT DID NOT REACH THE CONSTITUTIONAL CLAIM BASED ON NEW YORK
TIMES, HOLDING THAT PETITIONER HAD WAIVED THE RIGHT TO MAKE THAT
CHALLENGE SINCE SOME OF ITS LAWYERS HAD BEEN INVOLVED IN THE LATTER
CASE, YET THE DEFENSE WAS BASED SOLELY ON THE ISSUE OF TRUTH.  IN NO.
150, PETITIONER, A NEWS ASSOCIATION, PUBLISHED A DISPATCH ABOUT A
MASSIVE RIOT ON THE UNIVERSITY OF MISSISSIPPI CAMPUS ATTENDING FEDERAL
EFFORTS TO ENFORCE A COURT DECREE ORDERING A NEGRO'S ENROLLMENT.  THE
DISPATCH STATED THAT RESPONDENT, A POLITICALLY PROMINENT FIGURE WHOSE
STATEMENTS ON FEDERAL INTERVENTION HAD BEEN WIDELY PUBLICIZED, HAD
TAKEN COMMAND OF THE VIOLENT CROWD AND LED A CHARGE AGAINST FEDERAL
MARSHALS TRYING TO ENFORCE THE COURT'S DECREE, HAD ENCOURAGED VIOLENCE
AND GIVEN TECHNICAL ADVICE TO THE RIOTERS.  RESPONDENT BROUGHT A LIBEL
ACTION IN THE TEXAS STATE COURTS FOR COMPENSATORY AND PUNITIVE
DAMAGES.  PETITIONER'S DEFENSE WAS BASED ON TRUTH AND CONSTITUTIONAL
RIGHTS.  THE EVIDENCE SHOWED THAT THE DISPATCH HAD BEEN MADE ON THE
SCENE AND ALMOST IMMEDIATELY REPORTED TO THE PETITIONER BY A COMPETENT
CORRESPONDENT.  THERE WAS NO SIGNIFICANT SHOWING OF IMPROPER
PREPARATION OF THE DISPATCH, OR ANY PREJUDICE BY PETITIONER OR ITS
CORRESPONDENT.  THE JURY WAS INSTRUCTED THAT COMPENSATORY DAMAGES COULD
BE AWARDED IF THE DISPATCH WAS NOT SUBSTANTIALLY TRUE AND THAT PUNITIVE
DAMAGES COULD BE ADDED IF THE ARTICLE WAS ACTUATED BY ILL WILL OR
ENTIRE WANT OF CARE.  THE JURY RETURNED A VERDICT FOR BOTH COMPENSATORY
AND PUNITIVE DAMAGES.  THE TRIAL COURT REFUSED TO ENTER AN AWARD FOR
THE LATTER.  THE COURT HELD NEW YORK TIMES INAPPLICABLE BUT THAT IF
APPLICABLE IT WOULD REQUIRE A VERDICT FOR THE PETITIONER SINCE THERE
WAS NO EVIDENCE OF MALICE.  BOTH SIDES APPEALED.  THE TEXAS COURT OF
CIVIL APPEALS AFFIRMED AND THE TEXAS SUPREME COURT DENIED REVIEW. 
HELD:  THE JUDGMENT IN NO. 37 IS AFFIRMED.  THE JUDGMENT IN NO. 150 IS
REVERSED AND THE CASE REMANDED.  PP. 133-174. 

MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE CLARK, MR. JUSTICE STEWART,
AND MR. JUSTICE FORTAS, CONCLUDED THAT: 

1.  PETITIONER'S FAILURE IN NO. 37 TO RAISE THE CONSTITUTIONAL
DEFENSE BEFORE TRIAL CONSTITUTED NO WAIVER OF ITS RIGHT TO DO SO AFTER
NEW YORK TIMES WAS DECIDED.  PP. 142-145. 

2.  THE NEW YORK TIMES RULE PROHIBITING A PUBLIC OFFICIAL FROM
RECOVERING DAMAGES FOR DEFAMATORY FALSEHOOD RELATING TO HIS OFFICIAL
CONDUCT ABSENT ACTUAL MALICE AS THEREIN DEFINED, THOUGH NECESSARY THERE
TO PROTECT AGAINST PROSECUTIONS CLOSE TO SEDITIOUS LIBEL FOR
CRITICIZING OFFICIAL CONDUCT, SHOULD NOT BE INEXORABLY APPLIED TO
DEFAMATION ACTIONS BY "PUBLIC FIGURES" LIKE THOSE HERE, WHERE DIFFERENT
CONSIDERATIONS ARE PRESENT..  PP. 148, 152-154. 

3.  A "PUBLIC FIGURE" WHO IS NOT A PUBLIC OFFICIAL MAY RECOVER
DAMAGES FOR DEFAMATORY FALSEHOOD SUBSTANTIALLY ENDANGERING HIS
REPUTATION ON A SHOWING OF HIGHLY UNREASONABLE CONDUCT CONSTITUTING AN
EXTREME DEPARTURE FROM THE STANDARDS OF INVESTIGATION AND REPORTING
ORDINARILY ADHERED TO BY RESPONSIBLE PUBLISHERS.  P. 155. 

4.  IN VIEW OF THE COURT'S INSTRUCTIONS IN NO. 37, THE JURY MUST HAVE
DECIDED THAT THE MAGAZINE'S INVESTIGATION WAS GROSSLY INADEQUATE, AND
THE EVIDENCE AMPLY SUPPORTED A FINDING OF THE HIGHLY UNREASONABLE
CONDUCT REFERRED TO ABOVE.  PP. 156-158. 

5.  IN NO. 150, WHERE THE COURTS FOUND THE EVIDENCE INSUFFICIENT TO
SUPPORT MORE THAN A FINDING OF EVEN ORDINARY NEGLIGENCE, RESPONDENT IS
NOT ENTITLED TO DAMAGES.  PP. 158-159. 

6.  MISCONDUCT SUFFICIENT TO JUSTIFY COMPENSATORY DAMAGES ALSO
JUSTIFIES PUNITIVE DAMAGES; THE SAME CONSTITUTIONAL STANDARDS APPLY TO
BOTH.  PP. 159-161. 

THE CHIEF JUSTICE CONCLUDED THAT: 

1.  THE NEW YORK TIMES STANDARD APPLIES TO DEFAMATION ACTIONS BY
"PUBLIC FIGURES" AS WELL AS THOSE BY "PUBLIC OFFICIALS."  PP. 162-165. 

2.  THE JUDGMENT IN NO. 150, BEING IN CLEAR CONFLICT WITH NEW YORK
TIMES, MUST BE REVERSED.  P. 165. 

3.  RETRIAL OF NO. 37 IS NOT NECESSARY SINCE THE JURY'S VERDICT
THEREIN IN VIEW OF INSTRUCTIONS WHICH INVOKED THE ELEMENTS LATER HELD
NECESSARY IN NEW YORK TIMES MOST PROBABLY WAS BASED ON THE REQUIREMENT
OF RECKLESS DISREGARD FOR THE TRUTH ENUNCIATED IN THAT CASE.  PP. 165
167. 

4.  THE OVERLAPPING OF COUNSEL IN NO. 37 WITH COUNSEL IN NEW YORK
TIMES AND IN A LIBEL ACTION AGAINST PETITIONER BY THE ALABAMA COACH, IN
WHICH A FIRST AMENDMENT DEFENSE WAS ALSO MADE, COMPELS THE CONCLUSION
THAT THE FAILURE TO DEFEND ON THOSE GROUNDS HERE WAS DELIBERATE.  PP.
167-168. 

5.  THE EVIDENCE SHOWS THAT PETITIONER IN NO. 37 ACTED IN RECKLESS
DISREGARD FOR THE TRUTH.  PP. 168-170. 

MR. JUSTICE BLACK, JOINED BY MR. JUSTICE DOUGLAS, CONCLUDED THAT IN
ORDER TO DISPOSE OF NO. 150 HE CONCURS IN THE GROUNDS STATED BY THE
CHIEF JUSTICE WHICH ARE SUMMARIZED IN PARAGRAPHS 1 AND 2, SUPRA, OF THE
CHIEF JUSTICE'S CONCLUSIONS BUT DOES NOT RECEDE FROM HIS PREVIOUSLY
EXPRESSED VIEWS ABOUT THE MUCH WIDER PRESS AND SPEECH FREEDOMS OF THE
FIRST AND FOURTEENTH AMENDMENTS.  P. 170. 

MR. JUSTICE BRENNAN, JOINED BY MR. JUSTICE WHITE, CONCLUDED THAT THE
GROUNDS STATED BY THE CHIEF JUSTICE WHICH ARE SUMMARIZED IN PARAGRAPHS
1 AND 2, SUPRA, OF THE CHIEF JUSTICE'S CONCLUSIONS IN NO. 150 GOVERN
THAT CASE.  P. 172. 

CURTIS PUBLISHING CO. V. BUTTS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN ANNOUNCED THE JUDGMENTS OF THE COURT AND DELIVERED
AN OPINION IN WHICH MR. JUSTICE CLARK, MR. JUSTICE STEWART, AND MR.
JUSTICE FORTAS JOIN.* 

*FIVE MEMBERS OF THE COURT, WHILE CONCURRING IN THE RESULT REACHED IN
NO. 150, WOULD REST DECISION ON GROUNDS OTHER THAN THOSE STATED IN THIS
OPINION.  SEE SEPARATE OPINIONS OF THE CHIEF JUSTICE (POST, P. 162), OF
MR. JUSTICE BLACK (POST, P. 170), AND OF MR. JUSTICE BRENNAN (POST, P.
172). 

IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 279-280, THIS COURT
HELD THAT "THE CONSTITUTIONAL GUARANTEES (OF FREEDOM OF SPEECH AND
PRESS) REQUIRE  ...  A FEDERAL RULE THAT PROHIBITS A PUBLIC OFFICIAL
FROM RECOVERING DAMAGES FOR A DEFAMATORY FALSEHOOD RELATING TO HIS
OFFICIAL CONDUCT UNLESS HE PROVES THAT THE STATEMENT WAS MADE WITH
'ACTUAL MALICE' - THAT IS, WITH KNOWLEDGE THAT IT WAS FALSE OR WITH
RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR NOT."  WE BROUGHT THESE
TWO CASES HERE, 385 U.S. 811, 385 U.S. 812, TO CONSIDER THE IMPACT OF
THAT DECISION ON LIBEL ACTIONS INSTITUTED BY PERSONS WHO ARE NOT PUBLIC
OFFICIALS, BUT WHO ARE "PUBLIC FIGURES" AND INVOLVED IN ISSUES IN WHICH
THE PUBLIC HAS A JUSTIFIED AND IMPORTANT INTEREST.  THE SWEEP OF THE
NEW YORK TIMES RULE IN LIBEL ACTIONS BROUGHT UNDER STATE LAW WAS A
QUESTION EXPRESSLY RESERVED IN THAT CASE, 376 U.S., AT 283, N. 23, AND
WHILE THAT QUESTION HAS BEEN INVOLVED IN LATER CASES, GARRISON V.
LOUISIANA, 379 U.S. 64; ROSENBLATT V. BAER, 383 U.S. 75; TIME, INC. V.
HILL, 385 U.S. 374, IT HAS NOT BEEN FULLY SETTLED. 

THE MATTER HAS, HOWEVER, BEEN PASSED ON BY A CONSIDERABLE NUMBER OF
STATE AND LOWER FEDERAL COURTS AND HAS PRODUCED A SHARP DIVISION OF
OPINION AS TO WHETHER THE NEW YORK TIMES RULE SHOULD APPLY ONLY IN
ACTIONS BROUGHT BY PUBLIC OFFICIALS OR WHETHER IT HAS A LONGER REACH. 
COMPARE, E.G., PEARSON V. FAIRBANKS PUBLISHING CO., 413 P.2D 711
(ALASKA), WITH CLARK V. PEARSON, 248 F. SUPP. 188.  (FN1) THE
RESOLUTION OF THE UNCERTAINTY IN THIS AREA OF LIBEL ACTIONS REQUIRES,
AT BOTTOM, SOME FURTHER EXPLORATION AND CLARIFICATION OF THE
RELATIONSHIP BETWEEN LIBEL LAW AND THE FREEDOM OF SPEECH AND PRESS,
LEST THE NEW YORK TIMES RULE BECOME A TALISMAN WHICH GIVES THE PRESS
CONSTITUTIONALLY ADEQUATE PROTECTION ONLY IN A LIMITED FIELD, OR, WHAT
WOULD BE EQUALLY UNFORTUNATE, ONE WHICH GOES FAR TO IMMUNIZE THE PRESS
FROM HAVING TO MAKE JUST REPARATION FOR THE INFLICTION OF NEEDLESS
INJURY UPON HONOR AND REPUTATION THROUGH FALSE PUBLICATION.  THESE TWO
LIBEL ACTIONS, ALTHOUGH THEY ARISE OUT OF QUITE DIFFERENT SETS OF
CIRCUMSTANCES, PROVIDE THAT OPPORTUNITY.  WE THINK THEY ARE BEST
TREATED TOGETHER IN ONE OPINION. 

                                   I. 

NO. 37, CURTIS PUBLISHING CO. V. BUTTS, STEMS FROM AN ARTICLE
PUBLISHED IN PETITIONER'S SATURDAY EVENING POST WHICH ACCUSED
RESPONDENT OF CONSPIRING TO "FIX" A FOOTBALL GAME BETWEEN THE
UNIVERSITY OF GEORGIA AND THE UNIVERSITY OF ALABAMA, PLAYED IN 1962. 
AT THE TIME OF THE ARTICLE, BUTTS WAS THE ATHLETIC DIRECTOR OF THE
UNIVERSITY OF GEORGIA AND HAD OVERALL RESPONSIBILITY FOR THE
ADMINISTRATION OF ITS ATHLETIC PROGRAM.  GEORGIA IS A STATE UNIVERSITY,
BUT BUTTS WAS EMPLOYED BY THE GEORGIA ATHLETIC ASSOCIATION, A PRIVATE
CORPORATION, RATHER THAN BY THE STATE ITSELF.  (FN2) BUTTS HAD
PREVIOUSLY SERVED AS HEAD FOOTBALL COACH OF THE UNIVERSITY AND WAS A
WELL-KNOWN AND RESPECTED FIGURE IN COACHING RANKS.  HE HAD MAINTAINED
AN INTEREST IN COACHING AND WAS NEGOTIATING FOR A POSITION WITH A
PROFESSIONAL TEAM AT THE TIME OF PUBLICATION. 

THE ARTICLE WAS ENTITLED "THE STORY OF A COLLEGE FOOTBALL FIX" AND
PREFACED BY A NOTE FROM THE EDITORS STATING: "NOT SINCE THE CHICAGO
WHITE SOX THREW THE 1919 WORLD SERIES HAS THERE BEEN A SPORTS STORY AS
SHOCKING AS THIS ONE  ...  .  BEFORE THE UNIVERSITY OF GEORGIA PLAYED
THE UNIVERSITY OF ALABAMA  ...  WALLY BUTTS  ...  GAVE TO ITS COACH ...
GEORGIA'S PLAYS, DEFENSIVE PATTERNS, ALL THE SIGNIFICANT SECRETS
GEORGIA'S FOOTBALL TEAM POSSESSED."  THE TEXT REVEALED THAT ONE GEORGE
BURNETT, AN ATLANTA INSURANCE SALESMAN, HAD ACCIDENTALLY OVERHEARD,
BECAUSE OF ELECTRONIC ERROR, A TELEPHONE CONVERSATION BETWEEN BUTTS AND
THE HEAD COACH OF THE UNIVERSITY OF ALABAMA, PAUL BRYANT, WHICH TOOK
PLACE APPROXIMATELY ONE WEEK PRIOR TO THE GAME.  BURNETT WAS SAID TO
HAVE LISTENED WHILE "BUTTS OUTLINED GEORGIA'S OFFENSIVE PLAYS  ...  AND
TOLD  ...  HOW GEORGIA PLANNED TO DEFEND  ...  . BUTTS MENTIONED BOTH
PLAYERS AND PLAYS BY NAME."  THE READERS WERE TOLD THAT BURNETT HAD
MADE NOTES OF THE CONVERSATION, AND SPECIFIC EXAMPLES OF THE DIVULGED
SECRETS WERE SET OUT. 

THE ARTICLE WENT ON TO DISCUSS THE GAME AND THE PLAYERS' REACTION TO
THE GAME, CONCLUDING THAT "THE GEORGIA PLAYERS, THEIR MOVES ANALYZED
AND FORECAST LIKE THOSE OF RATS IN A MAZE, TOOK A FRIGHTFUL PHYSICAL
BEATING," AND SAID THAT THE PLAYERS, AND OTHER SIDELINE OBSERVERS, WERE
AWARE THAT ALABAMA WAS PRIVY TO GEORGIA'S SECRETS.  IT SET OUT THE
SERIES OF EVENTS COMMENCING WITH BURNETT'S LATER PRESENTATION OF HIS
NOTES TO THE GEORGIA HEAD COACH, JOHNNY GRIFFITH, AND CULMINATING IN
BUTTS' RESIGNATION FROM THE UNIVERSITY'S ATHLETIC AFFAIRS, FOR HEALTH
AND BUSINESS REASONS.  THE ARTICLE'S CONCLUSION MADE CLEAR ITS EXPECTED
IMPACT: 

"THE CHANCES ARE THAT WALLY BUTTS WILL NEVER HELP ANY FOOTBALL TEAM
AGAIN  ...  .  THE INVESTIGATION BY UNIVERSITY AND SOUTHEASTERN
CONFERENCE OFFICIALS IS CONTINUING; MOTION PICTURES OF OTHER GAMES ARE
BEING SCRUTINIZED; WHERE IT WILL END NO ONE SO FAR CAN SAY.  BUT
CAREERS WILL BE RUINED, THAT IS SURE." 

BUTTS BROUGHT THIS DIVERSITY LIBEL ACTION IN THE FEDERAL COURTS IN
GEORGIA SEEKING $5,000,000 COMPENSATORY AND $5,000,000 PUNITIVE
DAMAGES.  THE COMPLAINT WAS FILED, AND THE TRIAL COMPLETED, BEFORE THIS
COURT HANDED DOWN ITS DECISION IN NEW YORK TIMES, AND THE ONLY DEFENSE
RAISED BY PETITIONER CURTIS WAS ONE OF SUBSTANTIAL TRUTH.  NO
CONSTITUTIONAL DEFENSES WERE INTERPOSED ALTHOUGH CURTIS' COUNSEL WERE
AWARE OF THE PROGRESS OF THE NEW YORK TIMES CASE, AND ALTHOUGH GENERAL
CONSTITUTIONAL DEFENSES HAD BEEN RAISED BY CURTIS IN A LIBEL ACTION
INSTITUTED BY THE ALABAMA COACH WHO WAS A STATE EMPLOYEE. 

EVIDENCE AT TRIAL WAS DIRECTED BOTH TO THE TRUTH OF THE ARTICLE AND
TO ITS PREPARATION.  THE LATTER POINT WAS PUT IN ISSUE BY THE CLAIM FOR
PUNITIVE DAMAGES WHICH REQUIRED A FINDING OF "MALICE" UNDER GEORGIA
LAW.  THE EVIDENCE SHOWED THAT BURNETT HAD INDEED OVERHEARD A
CONVERSATION BETWEEN BUTTS AND THE ALABAMA COACH, BUT THE CONTENT OF
THAT CONVERSATION WAS HOTLY DISPUTED.  IT WAS BUTTS' CONTENTION THAT
THE CONVERSATION HAD BEEN GENERAL FOOTBALL TALK AND THAT NOTHING
BURNETT HAD OVERHEARD WOULD HAVE BEEN OF ANY PARTICULAR VALUE TO AN
OPPOSING COACH.  EXPERT WITNESSES SUPPORTED BUTTS BY ANALYZING
BURNETT'S NOTES AND THE FILMS OF THE GAME ITSELF.  THE SATURDAY EVENING
POST'S VERSION OF THE GAME AND OF THE PLAYERS' REMARKS ABOUT THE GAME
WAS SEVERELY CONTRADICTED. 

THE EVIDENCE ON THE PREPARATION OF THE ARTICLE, ON WHICH WE SHALL
FOCUS IN MORE DETAIL LATER, CAST SERIOUS DOUBT ON THE ADEQUACY OF THE
INVESTIGATION UNDERLYING THE ARTICLE.  IT WAS BUTTS' CONTENTION THAT
THE MAGAZINE HAD DEPARTED GREATLY FROM THE STANDARDS OF GOOD
INVESTIGATION AND REPORTING AND THAT THIS WAS ESPECIALLY REPREHENSIBLE,
AMOUNTING TO RECKLESS AND WANTON CONDUCT, IN LIGHT OF THE DEVASTATING
NATURE OF THE ARTICLE'S ASSERTIONS. 

THE JURY WAS INSTRUCTED THAT IN ORDER FOR THE DEFENSE OF TRUTH TO BE
SUSTAINED IT WAS "NECESSARY THAT THE TRUTH BE SUBSTANTIALLY PORTRAYED
IN THOSE PARTS OF THE ARTICLE WHICH LIBEL THE PLAINTIFF."  THE "STING
OF THE LIBEL" WAS SAID TO BE "THE CHARGE THAT THE PLAINTIFF RIGGED AND
FIXED THE 1962 GEORGIA-ALABAMA GAME BY GIVING COACH BRYANT OF ALABAMA
INFORMATION WHICH WAS CALCULATED TO OR COULD HAVE AFFECTED THE OUTCOME
OF THE GAME."  THE JURY WAS ALSO INSTRUCTED THAT IT COULD AWARD
PUNITIVE DAMAGES "TO DETER THE WRONG-DOER FROM REPEATING THE TRESPASS"
IN AN AMOUNT WITHIN ITS SOLE DISCRETION IF IT FOUND THAT ACTUAL MALICE
HAD BEEN PROVED.  (FN3) 

THE JURY RETURNED A VERDICT FOR $60,000 IN GENERAL DAMAGES AND FOR
$3,000,000 IN PUNITIVE DAMAGES.   THE TRIAL COURT REDUCED THE TOTAL TO
$460,000 BY REMITTITUR.  SOON THEREAFTER WE HANDED DOWN OUR DECISION IN
NEW YORK TIMES AND CURTIS IMMEDIATELY BROUGHT IT TO THE ATTENTION OF
THE TRIAL COURT BY A MOTION FOR NEW TRIAL.  THE TRIAL JUDGE REJECTED
CURTIS' MOTION ON TWO GROUNDS.  HE FIRST HELD THAT NEW YORK TIMES WAS
INAPPLICABLE BECAUSE BUTTS WAS NOT A PUBLIC OFFICIAL.  HE ALSO HELD
THAT "THERE WAS AMPLE EVIDENCE FROM WHICH A JURY COULD HAVE CONCLUDED
THAT THERE WAS RECKLESS DISREGARD BY DEFENDANT OF WHETHER THE ARTICLE
WAS FALSE OR NOT." 

CURTIS APPEALED TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT WHICH
AFFIRMED THE JUDGMENT OF THE DISTRICT COURT BY A TWO-TO-ONE VOTE.  THE
MAJORITY THERE DID NOT REACH THE MERITS OF PETITIONER'S CONSTITUTIONAL
CLAIM, HOLDING THAT CURTIS HAD "CLEARLY WAIVED ANY RIGHT IT MAY HAVE
HAD TO CHALLENGE THE VERDICT AND JUDGMENT ON ANY OF THE CONSTITUTIONAL
GROUNDS ASSERTED IN TIMES," 351 F.2D 702, 713, ON THE BASIS OF MICHEL
V. LOUISIANA, 350 U.S. 91.  IT FOUND CURTIS CHARGEABLE WITH KNOWLEDGE
OF THE CONSTITUTIONAL LIMITATIONS ON LIBEL LAW AT THE TIME IT FILED ITS
PLEADINGS BELOW BECAUSE OF ITS "INTERLOCKING BATTERY OF ABLE AND
DISTINGUISHED ATTORNEYS" SOME OF WHOM WERE INVOLVED IN THE NEW YORK
TIMES LITIGATION.  THIS HOLDING RENDERED THE COMPENSATORY DAMAGE
DECISION PURELY ONE OF STATE LAW AND NO ERROR WAS FOUND IN ITS
APPLICATION.  TURNING TO THE PUNITIVE DAMAGE AWARD, THE MAJORITY UPHELD
IT AS STEMMING FROM THE "ENLIGHTENED CONSCIENCE" OF THE JURY AS
ADJUSTED BY THE LAWFUL ACTION OF THE TRIAL JUDGE.  IT WAS IN "COMPLETE
ACCORD" WITH THE TRIAL COURT'S DETERMINATION THAT THE EVIDENCE
JUSTIFIED THE FINDING "THAT WHAT THE POST DID WAS DONE WITH RECKLESS
DISREGARD OF WHETHER THE ARTICLE WAS FALSE OR NOT."  351 F.2D, AT 719. 

JUDGE RIVES DISSENTED, ARGUING THAT THE RECORD DID NOT SUPPORT A
FINDING OF KNOWING WAIVER OF CONSTITUTIONAL DEFENSES.  HE CONCLUDED
THAT THE NEW YORK TIMES RULE WAS APPLICABLE BECAUSE BUTTS WAS INVOLVED
IN ACTIVITIES OF GREAT INTEREST TO THE PUBLIC.  HE WOULD HAVE REVERSED
BECAUSE "THE JURY MIGHT WELL HAVE UNDERSTOOD THE DISTRICT COURT'S
CHARGE TO ALLOW RECOVERY ON A SHOWING OF INTENT TO INFLICT HARM OR EVEN
THE CULPABLY NEGLIGENT INFLICTION OF HARM, RATHER THAN THE INTENT TO
INFLICT HARM THROUGH FALSEHOOD  ...  ."  351 F.2D, AT 723. 

REHEARING WAS DENIED, 351 F.2D, AT 733, AND WE GRANTED CERTIORARI, AS
INDICATED ABOVE.  FOR REASONS GIVEN BELOW, WE WOULD AFFIRM. 

II. 

NO. 150, ASSOCIATED PRESS V. WALKER, AROSE OUT OF THE DISTRIBUTION OF
A NEWS DISPATCH GIVING AN EYEWITNESS ACCOUNT OF EVENTS ON THE CAMPUS OF
THE UNIVERSITY OF MISSISSIPPI ON THE NIGHT OF SEPTEMBER 30, 1962, WHEN
A MASSIVE RIOT ERUPTED BECAUSE OF FEDERAL EFFORTS TO ENFORCE A COURT
DECREE ORDERING THE ENROLLMENT OF A NEGRO, JAMES MEREDITH, AS A STUDENT
IN THE UNIVERSITY.  THE DISPATCH STATED THAT RESPONDENT WALKER, WHO WAS
PRESENT ON THE CAMPUS, HAD TAKEN COMMAND OF THE VIOLENT CROWD AND HAD
PERSONALLY LED A CHARGE AGAINST FEDERAL MARSHALS SENT THERE TO
EFFECTUATE THE COURT'S DECREE AND TO ASSIST IN PRESERVING ORDER.  IT
ALSO DESCRIBED WALKER AS ENCOURAGING RIOTERS TO USE VIOLENCE AND GIVING
THEM TECHNICAL ADVICE ON COMBATING THE EFFECTS OF TEAR GAS. 

WALKER WAS A PRIVATE CITIZEN AT THE TIME OF THE RIOT AND
PUBLICATION.  HE HAD PURSUED A LONG AND HONORABLE CAREER IN THE UNITED
STATES ARMY BEFORE RESIGNING TO ENGAGE IN POLITICAL ACTIVITY, AND HAD,
IN FACT, BEEN IN COMMAND OF THE FEDERAL TROOPS DURING THE SCHOOL
SEGREGATION CONFRONTATION AT LITTLE ROCK, ARKANSAS, IN 1957.  HE WAS
ACUTELY INTERESTED IN THE ISSUE OF PHYSICAL FEDERAL INTERVENTION, AND
HAD MADE A NUMBER OF STRONG STATEMENTS AGAINST SUCH ACTION WHICH HAD
RECEIVED WIDE PUBLICITY.  WALKER HAD HIS OWN FOLLOWING, THE "FRIENDS OF
WALKER," AND COULD FAIRLY BE DEEMED A MAN OF SOME POLITICAL
PROMINENCE. 

WALKER INITIATED THIS LIBEL ACTION IN THE STATE COURTS OF TEXAS,
SEEKING A TOTAL OF $2,000,000 IN COMPENSATORY AND PUNITIVE DAMAGES. 
ASSOCIATED PRESS RAISED BOTH THE DEFENSE OF TRUTH AND CONSTITUTIONAL
DEFENSES.  AT TRIAL BOTH SIDES ATTEMPTED TO RECONSTRUCT THE STORMY
EVENTS ON THE CAMPUS OF THE UNIVERSITY OF MISSISSIPPI.  WALKER ADMITTED
HIS PRESENCE ON THE CAMPUS AND CONCEDED THAT HE HAD SPOKEN TO A GROUP
OF STUDENTS.  HE CLAIMED, HOWEVER, THAT HE HAD COUNSELED RESTRAINT AND
PEACEFUL PROTEST, AND EXERCISED NO CONTROL WHATEVER OVER THE CROWD
WHICH HAD REJECTED HIS PLEA.  HE DENIED CATEGORICALLY TAKING PART IN
ANY CHARGE AGAINST THE FEDERAL MARSHALS. 

THERE WAS LITTLE EVIDENCE RELATING TO THE PREPARATION OF THE NEWS
DISPATCH.  IT WAS CLEAR, HOWEVER, THAT THE AUTHOR OF THIS DISPATCH, VAN
SAVELL, WAS ACTUALLY PRESENT DURING THE EVENTS DESCRIBED AND HAD
REPORTED THEM ALMOST IMMEDIATELY TO THE ASSOCIATED PRESS OFFICE IN
ATLANTA.  A DISCREPANCY WAS SHOWN BETWEEN AN ORAL ACCOUNT GIVEN THE
OFFICE AND A LATER WRITTEN DISPATCH, BUT IT RELATED SOLELY TO WHETHER
WALKER HAD SPOKEN TO THE GROUP BEFORE OR AFTER APPROACHING THE
MARSHALS.  NO OTHER SHOWING OF IMPROPER PREPARATION WAS ATTEMPTED, NOR
WAS THERE ANY EVIDENCE OF PERSONAL PREJUDICE OR INCOMPETENCY ON THE
PART OF SAVELL OR THE ASSOCIATED PRESS.    THE JURY WAS INSTRUCTED THAT
AN AWARD OF COMPENSATORY DAMAGES COULD BE MADE IF THE DISPATCH WAS NOT
SUBSTANTIALLY TRUE, (FN4) AND THAT PUNITIVE DAMAGES COULD BE ADDED IF
THE ARTICLE WAS ACTUATED BY "ILL WILL, BAD OR EVIL MOTIVE, OR THAT
ENTIRE WANT OF CARE WHICH WOULD RAISE THE BELIEF THAT THE ACT OR
OMISSION COMPLAINED OF WAS THE RESULT OF A CONSCIOUS INDIFFERENCE TO
THE RIGHT OR WELFARE OF THE PERSON TO BE AFFECTED BY IT." 

A VERDICT OF $500,000 COMPENSATORY DAMAGES AND $300,000 PUNITIVE
DAMAGES WAS RETURNED.  THE TRIAL JUDGE, HOWEVER, FOUND THAT THERE WAS
"NO EVIDENCE TO SUPPORT THE JURY'S ANSWERS THAT THERE WAS ACTUAL
MALICE" AND REFUSED TO ENTER THE PUNITIVE AWARD.  HE CONCLUDED THAT THE
FAILURE FURTHER TO INVESTIGATE THE MINOR DISCREPANCY BETWEEN THE ORAL
AND WRITTEN VERSIONS OF THE INCIDENT COULD NOT "BE CONSTRUED AS THAT
ENTIRE WANT OF CARE WHICH WOULD AMOUNT TO A CONSCIOUS INDIFFERENCE TO
THE RIGHTS OF PLAINTIFF.  NEGLIGENCE, IT MAY HAVE BEEN; MALICE, IT WAS
NOT.  MOREOVER, THE MERE FACT THAT AP PERMITTED A YOUNG REPORTER TO
COVER THE STORY OF THE RIOT IS NOT EVIDENCE OF MALICE."  THE TRIAL
JUDGE ALSO NOTED THAT THIS LACK OF "MALICE" WOULD REQUIRE A VERDICT FOR
THE ASSOCIATED PRESS IF NEW YORK TIMES WERE APPLICABLE.  BUT HE
REJECTED ITS APPLICABILITY SINCE THERE WERE "NO COMPELLING REASONS OF
PUBLIC POLICY REQUIRING ADDITIONAL DEFENSES TO SUITS FOR LIBEL.  TRUTH
ALONE SHOULD BE AN ADEQUATE DEFENSE." 

BOTH SIDES APPEALED AND THE TEXAS COURT OF CIVIL APPEALS AFFIRMED
BOTH THE AWARD OF COMPENSATORY DAMAGES AND THE STRIKING OF PUNITIVE
DAMAGES.  IT STATED WITHOUT ELABORATION THAT NEW YORK TIMES WAS
INAPPLICABLE.  AS TO THE PUNITIVE DAMAGE AWARD, THE PLEA FOR
REINSTATEMENT WAS REFUSED BECAUSE "IN VIEW OF ALL THE SURROUNDING
CIRCUMSTANCES, THE RAPID AND CONFUSED OCCURRENCE OF EVENTS ON THE
OCCASION IN QUESTION, AND IN THE LIGHT OF ALL THE EVIDENCE, WE HOLD
THAT APPELLEE FAILED TO PROVE MALICE  ...  ."  393 S.W.2D 671, 683. 

THE SUPREME COURT OF TEXAS DENIED A WRIT OF ERROR, AND WE GRANTED
CERTIORARI, AS ALREADY INDICATED.  FOR REASONS GIVEN BELOW, WE WOULD
REVERSE. 

          III. 

BEFORE WE REACH THE CONSTITUTIONAL ARGUMENTS PUT FORWARD BY THE
RESPECTIVE PETITIONERS, WE MUST FIRST DETERMINE WHETHER CURTIS HAS
WAIVED ITS RIGHT TO ASSERT SUCH ARGUMENTS BY FAILING TO ASSERT THEM
BEFORE TRIAL.  AS OUR DISPOSITIONS OF ROSENBLATT V. BAER, 383 U.S. 75,
AND OTHER CASES INVOLVING CONSTITUTIONAL QUESTIONS INDICATE, (FN5) THE
MERE FAILURE TO INTERPOSE SUCH A DEFENSE PRIOR TO THE ANNOUNCEMENT OF A
DECISION WHICH MIGHT SUPPORT IT CANNOT PREVENT A LITIGANT FROM LATER
INVOKING SUCH A GROUND.  OF COURSE IT IS EQUALLY CLEAR THAT EVEN
CONSTITUTIONAL OBJECTIONS MAY BE WAIVED BY A FAILURE TO RAISE THEM AT A
PROPER TIME, MICHEL V. LOUISIANA, SUPRA, AT 99, (FN6) BUT AN EFFECTIVE
WAIVER MUST, AS WAS SAID IN JOHNSON V. ZERBST, 304 U.S. 458, 464, BE
ONE OF A "KNOWN RIGHT OR PRIVILEGE." 

BUTTS MAKES TWO ARGUMENTS IN SUPPORT OF HIS CONTENTION THAT CURTIS'
FAILURE TO RAISE CONSTITUTIONAL DEFENSES AMOUNTED TO A KNOWING WAIVER. 
THE FIRST IS THAT THE GENERAL STATE OF THE LAW AT THE TIME OF THIS
TRIAL WAS SUCH THAT CURTIS SHOULD, IN THE WORDS OF THE FIFTH CIRCUIT
MAJORITY, HAVE SEEN "THE HANDWRITING ON THE WALL."  351 F.2D, AT 734..
WE CANNOT ACCEPT THIS CONTENTION.  ALTHOUGH OUR DECISION IN NEW YORK
TIMES DID DRAW UPON EARLIER PRECEDENTS IN STATE LAW, E.G., COLEMAN V.
MACLENNAN, 78 KAN. 711, 98 P. 281, AND THERE WERE INTIMATIONS IN A
PRIOR OPINION AND THE EXTRA-JUDICIAL COMMENTS OF ONE JUSTICE, (FN7)
THAT SOME APPLICATIONS OF LIBEL LAW MIGHT BE IN CONFLICT WITH THE
GUARANTEES OF FREE SPEECH AND PRESS, THERE WAS STRONG PRECEDENT
INDICATING THAT CIVIL LIBEL ACTIONS WERE IMMUNE FROM GENERAL
CONSTITUTIONAL SCRUTINY.  (FN8)  GIVEN THE STATE OF THE LAW PRIOR TO
OUR DECISION IN NEW YORK TIMES, WE DO NOT THINK IT UNREASONABLE FOR A
LAWYER TRYING A CASE OF THIS KIND, WHERE THE PLAINTIFF WAS NOT EVEN A
PUBLIC OFFICIAL UNDER STATE LAW, TO HAVE LOOKED SOLELY TO THE DEFENSES
PROVIDED BY STATE LIBEL LAW.  NOR DO WE THINK THAT THE PREVIOUS GRANT
OF CERTIORARI IN NEW YORK TIMES ALONE INDICATES A DIFFERENT
CONCLUSION.  THE QUESTIONS PRESENTED FOR REVIEW THERE WERE PREMISED ON
SULLIVAN'S STATUS AS AN ELECTED PUBLIC OFFICIAL, AND ELECTED OFFICIALS
TRADITIONALLY HAVE BEEN SUBJECT TO SPECIAL RULES OF LIBEL LAW.  (FN9) 

BUTTS' SECOND CONTENTION IS THAT WHATEVER DEFENSES MIGHT REASONABLY
HAVE BEEN APPARENT TO THE AVERAGE LAWYER, SOME OF CURTIS' TRIAL
ATTORNEYS WERE INVOLVED IN THE NEW YORK TIMES LITIGATION AND THUS
SHOULD HAVE BEEN ESPECIALLY ALERT TO CONSTITUTIONAL CONTENTIONS.  THIS
WAS THE ARGUMENT WHICH SWAYED THE COURT OF APPEALS, BUT WE DO NOT FIND
IT CONVINCING. 

FIRST, AS A GENERAL MATTER, WE THINK IT INADVISABLE TO DETERMINE
WHETHER A "RIGHT OR PRIVILEGE" IS "KNOWN" BY RELYING ON INFORMATION
OUTSIDE THE RECORD CONCERNING THE SPECIAL LEGAL KNOWLEDGE OF PARTICULAR
ATTORNEYS.  SECOND, EVEN A LAWYER FULLY COGNIZANT OF THE RECORD AND
BRIEFS IN THE NEW YORK TIMES LITIGATION MIGHT REASONABLY HAVE EXPECTED
THE RESOLUTION OF THAT CASE TO HAVE NO IMPACT ON THIS LITIGATION, SINCE
THE ARGUMENTS ADVANCED THERE DEPENDED SO HEAVILY ON THE ANALOGY TO
SEDITIOUS LIBEL.  WE THINK THAT IT WAS OUR EVENTUAL RESOLUTION OF NEW
YORK TIMES, RATHER THAN ITS FACTS AND THE ARGUMENTS PRESENTED BY
COUNSEL, WHICH BROUGHT OUT THE CONSTITUTIONAL QUESTION HERE.  WE WOULD
NOT HOLD THAT CURTIS WAIVED A "KNOWN RIGHT" BEFORE IT WAS AWARE OF THE
NEW YORK TIMES DECISION.  IT IS AGREED THAT CURTIS' PRESENTATION OF THE
CONSTITUTIONAL ISSUE AFTER OUR DECISION IN NEW YORK TIMES WAS PROMPT. 

OUR REJECTION OF BUTTS' ARGUMENTS IS SUPPORTED BY FACTORS WHICH POINT
TO THE JUSTICE OF THAT CONCLUSION.  SEE HORMEL V. HELVERING, 312 U.S.
552, 556-557.  CURTIS' CONSTITUTIONAL POINTS WERE RAISED EARLY ENOUGH
SO THAT THIS COURT HAS HAD THE BENEFIT OF SOME VENTILATION OF THEM BY
THE COURTS BELOW.  THE RESOLUTION OF THE MERITS OF CURTIS' CONTENTIONS
BY THE DISTRICT COURT MAKES IT EVIDENT THAT BUTTS WAS NOT PREJUDICED BY
THE TIME AT WHICH CURTIS RAISED ITS ARGUMENT, FOR IT CANNOT BE ASSERTED
THAT AN EARLIER INTERPOSITION WOULD HAVE RESULTED IN ANY DIFFERENT
PROCEEDINGS BELOW.  (FN10)  FINALLY THE CONSTITUTIONAL PROTECTION WHICH
BUTTS CONTENDS THAT CURTIS HAS WAIVED SAFEGUARDS A FREEDOM WHICH IS THE
"MATRIX, THE INDISPENSABLE CONDITION, OF NEARLY EVERY OTHER FORM OF
FREEDOM."   PALKO V. CONNECTICUT, 302 U.S. 319, 327.  WHERE THE
ULTIMATE EFFECT OF SUSTAINING A CLAIM OF WAIVER MIGHT BE AN IMPOSITION
ON THAT VALUED FREEDOM, WE ARE UNWILLING TO FIND WAIVER IN
CIRCUMSTANCES WHICH FALL SHORT OF BEING CLEAR AND COMPELLING.  CF. NEW
YORK TIMES CO. V. CONNOR, 365 F.2D 567, 572. 

                                 IV. 

WE THUS TURN TO A CONSIDERATION, ON THE MERITS, OF THE CONSTITUTIONAL
CLAIMS RAISED BY CURTIS IN BUTTS AND BY THE ASSOCIATED PRESS IN
WALKER.  POWERFUL ARGUMENTS ARE BROUGHT TO BEAR FOR THE EXTENSION OF
THE NEW YORK TIMES RULE IN BOTH CASES.  IN BUTTS IT IS CONTENDED THAT
THE FACTS ARE ON ALL FOURS WITH THOSE OF ROSENBLATT V. BAER, SUPRA,
SINCE BUTTS WAS CHARGED WITH THE IMPORTANT RESPONSIBILITY OF MANAGING
THE ATHLETIC AFFAIRS OF A STATE UNIVERSITY.  IT IS ARGUED THAT WHILE
THE ATHLETIC ASSOCIATION IS FINANCIALLY INDEPENDENT FROM THE STATE AND
BUTTS WAS NOT TECHNICALLY A STATE EMPLOYEE, AS WAS BAER, HIS ROLE IN
STATE ADMINISTRATION WAS SO SIGNIFICANT THAT THIS TECHNICAL DISTINCTION
FROM ROSENBLATT SHOULD BE IGNORED.  EVEN IF THIS FACTOR IS TO BE GIVEN
SOME WEIGHT, WE ARE TOLD THAT THE PUBLIC INTEREST IN EDUCATION IN
GENERAL, AND IN THE CONDUCT OF THE ATHLETIC AFFAIRS OF EDUCATIONAL
INSTITUTIONS IN PARTICULAR, JUSTIFIES CONSTITUTIONAL PROTECTION OF
DISCUSSION OF PERSONS INVOLVED IN IT EQUIVALENT TO THE PROTECTION
AFFORDED DISCUSSION OF PUBLIC OFFICIALS. 

A SIMILAR ARGUMENT IS RAISED IN THE WALKER CASE WHERE THE IMPORTANT
PUBLIC INTEREST IN BEING INFORMED ABOUT THE EVENTS AND PERSONALITIES
INVOLVED IN THE MISSISSIPPI RIOT IS PRESSED.  IN THAT CASE WE ARE ALSO
URGED TO RECOGNIZE THAT WALKER'S CLAIMS TO THE PROTECTION OF LIBEL LAWS
ARE LIMITED SINCE HE THRUST HIMSELF INTO THE "VORTEX" OF THE
CONTROVERSY. 

WE ARE URGED BY THE RESPONDENTS, BUTTS AND WALKER, TO RECOGNIZE
SOCIETY'S "PERVASIVE AND STRONG INTEREST IN PREVENTING AND REDRESSING
ATTACKS UPON REPUTATION," AND THE "IMPORTANT SOCIAL VALUES WHICH
UNDERLIE THE LAW OF DEFAMATION."  ROSENBLATT V. BAER, SUPRA, AT 86.  IT
IS POINTED OUT THAT THE PUBLICITY IN THESE INSTANCES WAS NOT DIRECTED
AT EMPLOYEES OF GOVERNMENT AND THAT THESE CASES CANNOT BE ANALOGIZED TO
SEDITIOUS LIBEL PROSECUTIONS.  ID., AT 92 (STEWART, J., CONCURRING). 
WE ARE TOLD THAT "THE RULE THAT PERMITS SATISFACTION OF THE DEEP-SEATED
NEED FOR VINDICATION OF HONOR IS NOT A MERE HISTORIC RELIC, BUT
PROMOTES THE LAW'S CIVILIZING FUNCTION OF PROVIDING AN ACCEPTABLE
SUBSTITUTE FOR VIOLENCE IN THE SETTLEMENT OF DISPUTES," AFRO-AMERICAN
PUBLISHING CO. V. JAFFE, 125 U.S. APP. D.C. 70, 81, 366 F.2D 649, 660,
AND THAT:: 

"NEWSPAPERS, MAGAZINES, AND BROADCASTING COMPANIES ARE BUSINESSES
CONDUCTED FOR PROFIT AND OFTEN MAKE VERY LARGE ONES.  LIKE OTHER
ENTERPRISES THAT INFLICT DAMAGE IN THE COURSE OF PERFORMING A SERVICE
HIGHLY USEFUL TO THE PUBLIC  ...  THEY MUST PAY THE FREIGHT; AND
INJURED PERSONS SHOULD NOT BE RELEGATED TO REMEDIES WHICH MAKE
COLLECTION OF THEIR CLAIMS DIFFICULT OR IMPOSSIBLE UNLESS STRONG POLICY
CONSIDERATIONS DEMAND."  BUCKLEY V. NEW YORK POST CORP., 373 F.2D 175,
182.. 

WE FULLY RECOGNIZE THE FORCE OF THESE COMPETING CONSIDERATIONS AND
THE FACT THAT AN ACCOMMODATION BETWEEN THEM IS NECESSARY NOT ONLY IN
THESE CASES, BUT IN ALL LIBEL ACTIONS ARISING FROM A PUBLICATION
CONCERNING PUBLIC ISSUES.  IN TIME, INC. V. HILL, 385 U.S. 374, 388, WE
HELD THAT "THE GUARANTEES FOR SPEECH AND PRESS ARE NOT THE PRESERVE OF
POLITICAL EXPRESSION OR COMMENT UPON PUBLIC AFFAIRS  ...  " AND
AFFIRMED THAT FREEDOM OF DISCUSSION "MUST EMBRACE ALL ISSUES ABOUT
WHICH INFORMATION IS NEEDED OR APPROPRIATE TO ENABLE THE MEMBERS OF
SOCIETY TO COPE WITH THE EXIGENCIES OF THEIR PERIOD."  THORNHILL V.
ALABAMA, 310 U.S. 88, 102.  THIS CARRIES OUT THE INTENT OF THE FOUNDERS
WHO FELT THAT A FREE PRESS WOULD ADVANCE "TRUTH, SCIENCE, MORALITY, AND
ARTS IN GENERAL" AS WELL AS RESPONSIBLE GOVERNMENT.  LETTER TO THE
INHABITANTS OF QUEBEC, 1 JOURNALS OF THE CONTINENTAL CONG. 108.  FROM
THE POINT OF VIEW OF DECIDING WHETHER A CONSTITUTIONAL INTEREST OF FREE
SPEECH AND PRESS IS PROPERLY INVOLVED IN THE RESOLUTION OF A LIBEL
QUESTION A RATIONAL DISTINCTION "CANNOT BE FOUNDED ON THE ASSUMPTION
THAT CRITICISM OF PRIVATE CITIZENS WHO SEEK TO LEAD IN THE
DETERMINATION OF  ... POLICY WILL BE LESS IMPORTANT TO THE PUBLIC
INTEREST THAN WILL CRITICISM OF GOVERNMENT OFFICIALS."  PAULING V.
GLOBE-DEMOCRAT PUBLISHING CO., 362 F.2D 188, 196. 

ON THE OTHER HAND, TO TAKE THE RULE FOUND APPROPRIATE IN NEW YORK
TIMES TO RESOLVE THE "TENSION" BETWEEN THE PARTICULAR CONSTITUTIONAL
INTEREST THERE INVOLVED AND THE INTERESTS OF PERSONAL REPUTATION AND
PRESS RESPONSIBILITY, ROSENBLATT V. BAER, SUPRA, AT 86, AS BEING
APPLICABLE THROUGHOUT THE REALM OF THE BROADER CONSTITUTIONAL INTEREST,
WOULD BE TO ATTRIBUTE TO THIS ASPECT OF NEW YORK TIMES AN UNINTENDED
INEXORABILITY AT THE THRESHOLD OF THIS NEW CONSTITUTIONAL DEVELOPMENT. 
IN TIME, INC. V. HILL, SUPRA, AT 390, WE COUNSELED AGAINST "BLIND
APPLICATION OF NEW YORK TIMES CO. V. SULLIVAN" AND CONSIDERED "THE
FACTORS WHICH ARISE IN THE PARTICULAR CONTEXT."  HERE WE MUST UNDERTAKE
A PARALLEL EVALUATION.  (FN11) 

THE MODERN HISTORY OF THE GUARANTEE OF FREEDOM OF SPEECH AND PRESS
MAINLY HAS BEEN ONE OF A SEARCH FOR THE OUTER LIMITS OF THAT RIGHT. 
FROM THE FOUNTAINHEAD OPINIONS OF JUSTICES HOLMES AND BRANDEIS IN
SCHENCK, ABRAMS, AND WHITNEY, (FN12) WHICH CONSIDERED THE PROBLEM WHEN
THE DISRUPTIVE EFFECTS OF SPEECH MIGHT STRIP THE PROTECTION FROM THE
SPEAKER, TO OUR RECENT DECISION IN ADDERLEY V. FLORIDA, 385 U.S. 39,
WHERE WE FOUND FREEDOM OF SPEECH NOT TO INCLUDE A FREEDOM TO TRESPASS,
THE COURT'S PRIMARY CONCERN HAS BEEN TO DETERMINE THE EXTENT OF THE
RIGHT AND THE SURROUNDING SAFEGUARDS NECESSARY TO GIVE IT "BREATHING
SPACE."  NAACP V. BUTTON, 371 U.S. 415, 433.  THAT CONCERN HAS PERHAPS
OMITTED FROM SEARCHING CONSIDERATION THE "REAL PROBLEM" OF DEFINING OR
DELIMITING THE RIGHT ITSELF.  SEE FREUND, MR. JUSTICE BLACK AND THE
JUDICIAL FUNCTION, 14 U.C.L.A. L. REV. 467, 471. 

IT IS SIGNIFICANT THAT THE GUARANTEE OF FREEDOM OF SPEECH AND PRESS
FALLS BETWEEN THE RELIGIOUS GUARANTEES AND THE GUARANTEE OF THE RIGHT
TO PETITION FOR REDRESS OF GRIEVANCES IN THE TEXT OF THE FIRST
AMENDMENT, THE PRINCIPLES OF WHICH ARE CARRIED TO THE STATES BY THE
FOURTEENTH AMENDMENT.  IT PARTAKES OF THE NATURE OF BOTH, FOR IT IS AS
MUCH A GUARANTEE TO INDIVIDUALS OF THEIR PERSONAL RIGHT TO MAKE THEIR
THOUGHTS PUBLIC AND PUT THEM BEFORE THE COMMUNITY, SEE HOLT, OF THE
LIBERTY OF THE PRESS, IN NELSON, FREEDOM OF THE PRESS FROM HAMILTON TO
THE WARREN COURT 18-19, AS IT IS A SOCIAL NECESSITY REQUIRED FOR THE
"MAINTENANCE OF OUR POLITICAL SYSTEM AND AN OPEN SOCIETY."  TIME, INC.
V. HILL, SUPRA, AT 389.  IT IS BECAUSE OF THE PERSONAL NATURE OF THIS
RIGHT THAT WE HAVE REJECTED ALL MANNER OF PRIOR RESTRAINT ON
PUBLICATION, NEAR V. MINNESOTA, 283 U.S. 697, DESPITE STRONG ARGUMENTS
THAT IF THE MATERIAL WAS UNPROTECTED THE TIME OF SUPPRESSION WAS
IMMATERIAL.  POUND, EQUITABLE RELIEF AGAINST DEFAMATION AND INJURIES TO
PERSONALITY, 29 HARV. L. REV.  640.  THE DISSEMINATION OF THE
INDIVIDUAL'S OPINIONS ON MATTERS OF PUBLIC INTEREST IS FOR US, IN THE
HISTORIC WORDS OF THE DECLARATION OF INDEPENDENCE, AN "UNALIENABLE
RIGHT" THAT "GOVERNMENTS ARE INSTITUTED AMONG MEN TO SECURE."  HISTORY
SHOWS US THAT THE FOUNDERS WERE NOT ALWAYS CONVINCED THAT UNLIMITED
DISCUSSION OF PUBLIC ISSUES WOULD BE "FOR THE BENEFIT OF ALL OF US"
(FN13) BUT THAT THEY FIRMLY ADHERED TO THE PROPOSITION THAT THE "TRUE
LIBERTY OF THE PRESS" PERMITTED "EVERY MAN TO PUBLISH HIS OPINION." 
RESPUBLICA V. OSWALD, 1 DALL.  319, 325 (PA.).    THE FACT THAT
DISSEMINATION OF INFORMATION AND OPINION ON QUESTIONS OF PUBLIC CONCERN
IS ORDINARILY A LEGITIMATE, PROTECTED AND INDEED CHERISHED ACTIVITY
DOES NOT MEAN, HOWEVER, THAT ONE MAY IN ALL RESPECTS CARRY ON THAT
ACTIVITY EXEMPT FROM SANCTIONS DESIGNED TO SAFEGUARD THE LEGITIMATE
INTERESTS OF OTHERS.  A BUSINESS "IS NOT IMMUNE FROM REGULATION BECAUSE
IT IS AN AGENCY OF THE PRESS.  THE PUBLISHER OF A NEWSPAPER HAS NO
SPECIAL IMMUNITY FROM THE APPLICATION OF GENERAL LAWS.  HE HAS NO
SPECIAL PRIVILEGE TO INVADE THE RIGHTS AND LIBERTIES OF OTHERS." 
ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103, 132-133.  FEDERAL
SECURITIES REGULATION, (FN14) MAIL FRAUD STATUTES, (FN15) AND COMMON
LAW ACTIONS FOR DECEIT AND MISREPRESENTATION (FN16) ARE ONLY SOME
EXAMPLES OF OUR UNDERSTANDING THAT THE RIGHT TO COMMUNICATE INFORMATION
OF PUBLIC INTEREST IS NOT "UNCONDITIONAL."  SEE NOTE, FREEDOM OF
EXPRESSION IN A COMMERCIAL CONTEXT, 78 HARV. L. REV. 1191.  HOWEVER, AS
OUR DECISION IN NEW YORK TIMES MAKES EXPLICIT, WHILE PROTECTED ACTIVITY
MAY IN SOME RESPECTS BE SUBJECTED TO SANCTIONS, IT IS NOT OPEN TO ALL
FORMS OF REGULATION.  THE GUARANTEES OF FREEDOM OF SPEECH AND PRESS
WERE NOT DESIGNED TO PREVENT "THE CENSORSHIP OF THE PRESS MERELY, BUT
ANY ACTION OF THE GOVERNMENT BY MEANS OF WHICH IT MIGHT PREVENT SUCH
FREE AND GENERAL DISCUSSION OF PUBLIC MATTERS AS SEEMS ABSOLUTELY
ESSENTIAL  ...  ."  2 COOLEY, CONSTITUTIONAL LIMITATIONS 886 (8TH
ED.).  OUR TOUCHSTONES ARE THAT ACCEPTABLE LIMITATIONS MUST NEITHER
AFFECT "THE IMPARTIAL DISTRIBUTION OF NEWS" AND IDEAS, ASSOCIATED PRESS
V. LABOR BOARD, SUPRA, AT 133, NOR BECAUSE OF THEIR HISTORY OR IMPACT
CONSTITUTE A SPECIAL BURDEN ON THE PRESS, GROSJEAN V. AMERICAN PRESS
CO., INC., 297 U.S. 233, NOR DEPRIVE OUR FREE SOCIETY OF THE
STIMULATING BENEFIT OF VARIED IDEAS BECAUSE THEIR PURVEYORS FEAR
PHYSICAL OR ECONOMIC RETRIBUTION SOLELY BECAUSE OF WHAT THEY CHOOSE TO
THINK AND PUBLISH. 

THE HISTORY OF LIBEL LAW LEAVES LITTLE DOUBT THAT IT ORIGINATED IN
SOIL ENTIRELY DIFFERENT FROM THAT WHICH NURTURED THESE CONSTITUTIONAL
VALUES.  EARLY LIBEL WAS PRIMARILY A CRIMINAL REMEDY, THE FUNCTION OF
WHICH WAS TO MAKE PUNISHABLE ANY WRITING WHICH TENDED TO BRING INTO
DISREPUTE THE STATE, ESTABLISHED RELIGION, OR ANY INDIVIDUAL LIKELY TO
BE PROVOKED TO A BREACH OF THE PEACE BECAUSE OF THE WORDS.  TRUTH WAS
NO DEFENSE IN SUCH ACTIONS AND WHILE A PROOF OF TRUTH MIGHT PREVENT
RECOVERY IN A CIVIL ACTION, THIS LIMITATION IS MORE READILY EXPLAINED
AS A MANIFESTATION OF JUDICIAL RELUCTANCE TO ENRICH AN UNDESERVING
PLAINTIFF THAN BY THE SUPPOSITION THAT THE DEFENDANT WAS PROTECTED BY
THE TRUTH OF THE PUBLICATION.  THE SAME TRUTHFUL STATEMENT MIGHT BE THE
BASIS OF A CRIMINAL LIBEL ACTION.  SEE COMMONWEALTH V. CLAP, 4 MASS.
163; SEE GENERALLY VEEDER, THE HISTORY AND THEORY OF THE LAW OF
DEFAMATION, 3 COL. L. REV. 546, 4 COL. L. REV. 33. 

THE LAW OF LIBEL HAS, OF COURSE, CHANGED SUBSTANTIALLY SINCE THE
EARLY DAYS OF THE REPUBLIC, AND THIS CHANGE IS "THE DIRECT CONSEQUENCE
OF THE FRICTION BETWEEN IT  ...  AND THE HIGHLY CHERISHED RIGHT OF FREE
SPEECH."  STATE V. BROWNE, 86 N.J. SUPER.  217, 228, 206 A.2D 591,
597.  THE EMPHASIS HAS SHIFTED FROM CRIMINAL TO CIVIL REMEDIES, FROM
THE PROTECTION OF ABSOLUTE SOCIAL VALUES TO THE SAFEGUARDING OF VALID
PERSONAL INTERESTS.  TRUTH HAS BECOME AN ABSOLUTE DEFENSE IN ALMOST ALL
CASES, (FN17) AND PRIVILEGES DESIGNED TO FOSTER FREE COMMUNICATION ARE
ALMOST UNIVERSALLY RECOGNIZED.  (FN18)  BUT THE BASIC THEORY OF LIBEL
HAS NOT CHANGED, AND WORDS DEFAMATORY OF ANOTHER ARE STILL PLACED "IN
THE SAME CLASS WITH THE USE OF EXPLOSIVES OR THE KEEPING OF DANGEROUS
ANIMALS."  PROSSER, THE LAW OF TORTS SEC 108, AT 792.  THUS SOME
ANTITHESIS BETWEEN FREEDOM OF SPEECH AND PRESS AND LIBEL ACTIONS
PERSISTS, FOR LIBEL REMAINS PREMISED ON THE CONTENT OF SPEECH AND
LIMITS THE FREEDOM OF THE PUBLISHER TO EXPRESS CERTAIN SENTIMENTS, AT
LEAST WITHOUT GUARANTEEING LEGAL PROOF OF THEIR SUBSTANTIAL ACCURACY. 

WHILE THE TRUTH OF THE UNDERLYING FACTS MIGHT BE SAID TO MARK THE
LINE BETWEEN PUBLICATIONS WHICH ARE OF SIGNIFICANT SOCIAL VALUE AND
THOSE WHICH MIGHT BE SUPPRESSED WITHOUT SERIOUS SOCIAL HARM AND THUS
RESOLVE THE ANTITHESIS ON A NEUTRAL GROUND, WE HAVE REJECTED, IN PRIOR
CASES INVOLVING MATERIALS AND PERSONS COMMANDING JUSTIFIED AND
IMPORTANT PUBLIC INTEREST, THE ARGUMENT THAT A FINDING OF FALSITY ALONE
SHOULD STRIP PROTECTIONS FROM THE PUBLISHER.  NEW YORK TIMES CO. V.
SULLIVAN, SUPRA, AT 272.  WE HAVE RECOGNIZED "THE INEVITABILITY OF SOME
ERROR IN THE SITUATION PRESENTED IN FREE DEBATE," TIME, INC. V. HILL,
SUPRA, AT 406 (OPINION OF THIS WRITER), AND THAT "PUTTING TO THE PRE
EXISTING PREJUDICES OF A JURY THE DETERMINATION OF WHAT IS 'TRUE' MAY
EFFECTIVELY INSTITUTE A SYSTEM OF CENSORSHIP." 

OUR RESOLUTION OF NEW YORK TIMES CO. V. SULLIVAN, IN THE CONTEXT OF
THE NUMEROUS STATUTES AND CASES WHICH ALLOW IDEOLOGICALLY NEUTRAL, AND
GENERALLY APPLICABLE REGULATORY MEASURES TO BE APPLIED TO PUBLICATION,
MAKES CLEAR, HOWEVER, THAT NEITHER THE INTERESTS OF THE PUBLISHER NOR
THOSE OF SOCIETY NECESSARILY PRECLUDE A DAMAGE AWARD BASED ON IMPROPER
CONDUCT WHICH CREATES A FALSE PUBLICATION.  IT IS THE CONDUCT ELEMENT,
THEREFORE, ON WHICH WE MUST PRINCIPALLY FOCUS IF WE ARE SUCCESSFULLY TO
RESOLVE THE ANTITHESIS BETWEEN CIVIL LIBEL ACTIONS AND THE FREEDOM OF
SPEECH AND PRESS.  IMPOSITIONS BASED ON MISCONDUCT CAN BE NEUTRAL WITH
RESPECT TO CONTENT OF THE SPEECH INVOLVED, FREE OF HISTORICAL TAINT,
AND ADJUSTED TO STRIKE A FAIR BALANCE BETWEEN THE INTERESTS OF THE
COMMUNITY IN FREE CIRCULATION OF INFORMATION AND THOSE OF INDIVIDUALS
IN SEEKING RECOMPENSE FOR HARM DONE BY THE CIRCULATION OF DEFAMATORY
FALSEHOOD. 

IN NEW YORK TIMES WE WERE ADJUDICATING IN AN AREA WHICH LAY CLOSE TO
SEDITIOUS LIBEL, AND HISTORY DICTATED EXTREME CAUTION IN IMPOSING
LIABILITY.  THE PLAINTIFF IN THAT CASE WAS AN OFFICIAL WHOSE POSITION
IN GOVERNMENT WAS SUCH "THAT THE PUBLIC HAD AN INDEPENDENT INTEREST IN
THE QUALIFICATIONS AND PERFORMANCE OF THE PERSON WHO HELD IT." 
ROSENBLATT V. BAER, SUPRA, AT 86.  SUCH OFFICIALS USUALLY ENJOY A
PRIVILEGE AGAINST LIBEL ACTIONS FOR THEIR UTTERANCES, SEE, E.G., BARR
V. MATTEO, 360 U.S. 564, AND THERE WERE ANALOGOUS CONSIDERATIONS
INVOLVED IN NEW YORK TIMES, SUPRA, AT 282.  THUS WE INVOKED "THE
HYPOTHESIS THAT SPEECH CAN REBUT SPEECH, PROPAGANDA WILL ANSWER
PROPAGANDA, FREE DEBATE OF IDEAS WILL RESULT IN THE WISEST GOVERNMENTAL
POLICIES," DENNIS V. UNITED STATES, 341 U.S. 494, 503, AND LIMITED
RECOVERY TO THOSE CASES WHERE "CALCULATED FALSEHOOD" PLACED THE
PUBLISHER "AT ODDS WITH THE PREMISES OF DEMOCRATIC GOVERNMENT AND WITH
THE ORDERLY MANNER IN WHICH ECONOMIC, SOCIAL, OR POLITICAL CHANGE IS TO
BE EFFECTED."  GARRISON V. LOUISIANA, 379 U.S. 64, 75.  THAT IS TO SAY,
SUCH OFFICIALS WERE PERMITTED TO RECOVER IN LIBEL ONLY WHEN THEY COULD
PROVE THAT THE PUBLICATION INVOLVED WAS DELIBERATELY FALSIFIED, OR
PUBLISHED RECKLESSLY DESPITE THE PUBLISHER'S AWARENESS OF PROBABLE
FALSITY.  INVESTIGATORY FAILURES ALONE WERE HELD INSUFFICIENT TO
SATISFY THIS STANDARD.  SEE NEW YORK TIMES, AT 286-288, 292; GARRISON
V. LOUISIANA, SUPRA, AT 73-75, 79. 

IN THE CASES WE DECIDE TODAY NONE OF THE PARTICULAR CONSIDERATIONS
INVOLVED IN NEW YORK TIMES IS PRESENT.  THESE ACTIONS CANNOT BE
ANALOGIZED TO PROSECUTIONS FOR SEDITIOUS LIBEL.  NEITHER PLAINTIFF HAS
ANY POSITION IN GOVERNMENT WHICH WOULD PERMIT A RECOVERY BY HIM TO BE
VIEWED AS A VINDICATION OF GOVERNMENTAL POLICY.  NEITHER WAS ENTITLED
TO A SPECIAL PRIVILEGE PROTECTING HIS UTTERANCES AGAINST ACCOUNTABILITY
IN LIBEL.  WE ARE PROMPTED, THEREFORE, TO SEEK GUIDANCE FROM THE RULES
OF LIABILITY WHICH PREVAIL IN OUR SOCIETY WITH RESPECT TO COMPENSATION
OF PERSONS INJURED BY THE IMPROPER PERFORMANCE OF A LEGITIMATE ACTIVITY
BY ANOTHER.  UNDER THESE RULES, A DEPARTURE FROM THE KIND OF CARE
SOCIETY MAY EXPECT FROM A REASONABLE MAN PERFORMING SUCH ACTIVITY
LEAVES THE ACTOR OPEN TO A JUDICIAL SHIFTING OF LOSS.  IN DEFINING
THESE RULES, AND ESPECIALLY IN FORMULATING THE STANDARDS FOR
DETERMINING THE DEGREE OF CARE TO BE EXPECTED IN THE CIRCUMSTANCES,
COURTS HAVE CONSISTENTLY GIVEN MUCH ATTENTION TO THE IMPORTANCE OF
DEFENDANTS' ACTIVITIES.  PROSSER, THE LAW OF TORTS SEC 31, AT 151.  THE
COURTS HAVE ALSO, ESPECIALLY IN LIBEL CASES, INVESTIGATED THE
PLAINTIFF'S POSITION TO DETERMINE WHETHER HE HAS A LEGITIMATE CALL UPON
THE COURT FOR PROTECTION IN LIGHT OF HIS PRIOR ACTIVITIES AND MEANS OF
SELF-DEFENSE.  SEE BREWER V. HEARST PUBLISHING CO., 185 F.2D 846;
FLANAGAN V. NICHOLSON PUBLISHING CO., 137 LA. 588, 68 SO. 964.  WE NOTE
THAT THE PUBLIC INTEREST IN THE CIRCULATION OF THE MATERIALS HERE
INVOLVED, AND THE PUBLISHER'S INTEREST IN CIRCULATING THEM, IS NOT LESS
THAN THAT INVOLVED IN NEW YORK TIMES.  AND BOTH BUTTS AND WALKER
COMMANDED A SUBSTANTIAL AMOUNT OF INDEPENDENT PUBLIC INTEREST AT THE
TIME OF THE PUBLICATIONS; BOTH, IN OUR OPINION, WOULD HAVE BEEN LABELED
"PUBLIC FIGURES" UNDER ORDINARY TORT RULES.  SEE SPAHN V. JULIAN
MESSNER, INC., 18 N.Y.2D 324, 221 N.E.2D 543, REMANDED ON OTHER
GROUNDS, 387 U.S. 239.  BUTTS MAY HAVE ATTAINED THAT STATUS BY POSITION
ALONE AND WALKER BY HIS PURPOSEFUL ACTIVITY AMOUNTING TO A THRUSTING OF
HIS PERSONALITY INTO THE "VORTEX" OF AN IMPORTANT PUBLIC CONTROVERSY,
BUT BOTH COMMANDED SUFFICIENT CONTINUING PUBLIC INTEREST AND HAD
SUFFICIENT ACCESS TO THE MEANS OF COUNTERARGUMENT TO BE ABLE "TO EXPOSE
THROUGH DISCUSSION THE FALSEHOOD AND FALLACIES" OF THE DEFAMATORY
STATEMENTS.  WHITNEY V. CALIFORNIA, 274 U.S. 357, 377 (BRANDEIS, J.,
DISSENTING). 

THESE SIMILARITIES AND DIFFERENCES BETWEEN LIBEL ACTIONS INVOLVING
PERSONS WHO ARE PUBLIC OFFICIALS AND LIBEL ACTIONS INVOLVING THOSE
CIRCUMSTANCED AS WERE BUTTS AND WALKER, VIEWED IN LIGHT OF THE
PRINCIPLES OF LIABILITY WHICH ARE OF GENERAL APPLICABILITY IN OUR
SOCIETY, LEAD US TO THE CONCLUSION THAT LIBEL ACTIONS OF THE PRESENT
KIND CANNOT BE LEFT ENTIRELY TO STATE LIBEL LAWS, UNLIMITED BY ANY
OVERRIDING CONSTITUTIONAL SAFEGUARD, BUT THAT THE RIGOROUS FEDERAL
REQUIREMENTS OF NEW YORK TIMES ARE NOT THE ONLY APPROPRIATE
ACCOMMODATION OF THE CONFLICTING INTERESTS AT STAKE.  WE CONSIDER AND
WOULD HOLD THAT A "PUBLIC FIGURE" WHO IS NOT A PUBLIC OFFICIAL MAY ALSO
RECOVER DAMAGES FOR A DEFAMATORY FALSEHOOD WHOSE SUBSTANCE MAKES
SUBSTANTIAL DANGER TO REPUTATION APPARENT, ON A SHOWING OF HIGHLY
UNREASONABLE CONDUCT CONSTITUTING AN EXTREME DEPARTURE FROM THE
STANDARDS OF INVESTIGATION AND REPORTING ORDINARILY ADHERED TO BY
RESPONSIBLE PUBLISHERS.  CF. SULZBERGER, RESPONSIBILITY AND FREEDOM, IN
NELSON, FREEDOM OF THE PRESS FROM HAMILTON TO THE WARREN COURT 409,
412. 

NOTHING IN THIS OPINION IS MEANT TO AFFECT THE HOLDINGS IN NEW YORK
TIMES AND ITS PROGENY, INCLUDING OUR RECENT DECISION IN TIME, INC. V.
HILL.  (FN19)

                                  V. 

HAVING SET FORTH THE STANDARD BY WHICH WE BELIEVE THE
CONSTITUTIONALITY OF THE DAMAGE AWARDS IN THESE CASES MUST BE JUDGED,
WE TURN NOW, AS THE COURT DID IN NEW YORK TIMES, TO THE QUESTION
WHETHER THE EVIDENCE AND FINDINGS BELOW MEET THAT STANDARD.  WE FIND
THE STANDARD SATISFIED IN NO. 37, BUTTS, AND NOT SATISFIED BY EITHER
THE EVIDENCE OR THE FINDINGS IN NO. 150, WALKER. 

THE BUTTS JURY WAS INSTRUCTED, IN CONSIDERING PUNITIVE DAMAGES, TO
ASSESS "THE RELIABILITY, THE NATURE OF THE SOURCES OF THE DEFENDANT'S
INFORMATION, ITS ACCEPTANCE OR REJECTION OF THE SOURCES, AND ITS CARE
IN CHECKING UPON ASSERTIONS."  THESE CONSIDERATIONS WERE SAID TO BE
RELEVANT TO A DETERMINATION WHETHER DEFENDANT HAD PROCEEDED WITH
"WANTON AND RECKLESS INDIFFERENCE."  IN THIS LIGHT WE CONSIDER THAT THE
JURY MUST HAVE DECIDED THAT THE INVESTIGATION UNDERTAKEN BY THE
SATURDAY EVENING POST, UPON WHICH MUCH EVIDENCE AND ARGUMENT WAS
CENTERED, (FN20) WAS GROSSLY INADEQUATE IN THE CIRCUMSTANCES.  THE
IMPACT OF A JURY INSTRUCTION "IS NOT TO BE ASCERTAINED BY MERELY
CONSIDERING ISOLATED STATEMENTS BUT BY TAKING INTO VIEW ALL THE
INSTRUCTIONS GIVEN AND THE TENDENCIES OF THE PROOF IN THE CASE TO WHICH
THEY COULD POSSIBLY BE APPLIED."  SEABOARD AIR LINE R. CO. V. PADGETT,
236 U.S. 668, 672. 

THIS JURY FINDING WAS FOUND TO BE SUPPORTED BY THE EVIDENCE BY THE
TRIAL JUDGE AND THE MAJORITY IN THE FIFTH CIRCUIT.  GIVEN THE EXTENDED
HISTORY OF THE CASE, THE AMOUNT OF THE EVIDENCE POINTING TO SERIOUS
DEFICIENCIES IN INVESTIGATORY PROCEDURE, AND THE SEVERE HARM INFLICTED
ON BUTTS, WE WOULD NOT FEEL JUSTIFIED IN ORDERING A RETRIAL OF THE
COMPENSATORY DAMAGE ISSUE, EITHER ON THE THEORY THAT THIS ASPECT OF THE
CASE WAS SUBMITTED TO THE JURY ONLY UNDER THE ISSUE OF "TRUTH," (FN21)
OR ON THE VERY SLIM POSSIBILITY THAT THE JURY FINDING REGARDING
PUNITIVE DAMAGES MIGHT HAVE BEEN BASED ON CURTIS' ATTITUDE TOWARD BUTTS
RATHER THAN ON CURTIS' CONDUCT. 

THE EVIDENCE SHOWED THAT THE BUTTS STORY WAS IN NO SENSE "HOT NEWS"
AND THE EDITORS OF THE MAGAZINE RECOGNIZED THE NEED FOR A THOROUGH
INVESTIGATION OF THE SERIOUS CHARGES.  ELEMENTARY PRECAUTIONS WERE,
NEVERTHELESS, IGNORED.  THE SATURDAY EVENING POST KNEW THAT BURNETT HAD
BEEN PLACED ON PROBATION IN CONNECTION WITH BAD CHECK CHARGES, BUT
PROCEEDED TO PUBLISH THE STORY ON THE BASIS OF HIS AFFIDAVIT WITHOUT
SUBSTANTIAL INDEPENDENT SUPPORT.  BURNETT'S NOTES WERE NOT EVEN VIEWED
BY ANY OF THE MAGAZINE'S PERSONNEL PRIOR TO PUBLICATION.  JOHN
CARMICHAEL WHO WAS SUPPOSED TO HAVE BEEN WITH BURNETT WHEN THE PHONE
CALL WAS OVERHEARD WAS NOT INTERVIEWED.  NO ATTEMPT WAS MADE TO SCREEN
THE FILMS OF THE GAME TO SEE IF BURNETT'S INFORMATION WAS ACCURATE, AND
NO ATTEMPT WAS MADE TO FIND OUT WHETHER ALABAMA HAD ADJUSTED ITS PLANS
AFTER THE ALLEGED DIVULGENCE OF INFORMATION.    THE POST WRITER
ASSIGNED TO THE STORY WAS NOT A FOOTBALL EXPERT AND NO ATTEMPT WAS MADE
TO CHECK THE STORY WITH SOMEONE KNOWLEDGEABLE IN THE SPORT.  AT TRIAL
SUCH EXPERTS INDICATED THAT THE INFORMATION IN THE BURNETT NOTES WAS
EITHER SUCH THAT IT WOULD BE EVIDENT TO ANY OPPOSING COACH FROM GAME
FILMS REGULARLY EXCHANGED OR VALUELESS.  THOSE ASSISTING THE POST
WRITER IN HIS INVESTIGATION WERE ALREADY DEEPLY INVOLVED IN ANOTHER
LIBEL ACTION, BASED ON A DIFFERENT ARTICLE, BROUGHT AGAINST CURTIS
PUBLISHING CO. BY THE ALABAMA COACH AND UNLIKELY TO BE THE SOURCE OF A
COMPLETE AND OBJECTIVE INVESTIGATION.  THE SATURDAY EVENING POST WAS
ANXIOUS TO CHANGE ITS IMAGE BY INSTITUTING A POLICY OF "SOPHISTICATED
MUCKRAKING," AND THE PRESSURE TO PRODUCE A SUCCESSFUL EXPOSE MIGHT HAVE
INDUCED A STRETCHING OF STANDARDS.  IN SHORT, THE EVIDENCE IS AMPLE TO
SUPPORT A FINDING OF HIGHLY UNREASONABLE CONDUCT CONSTITUTING AN
EXTREME DEPARTURE FROM THE STANDARDS OF INVESTIGATION AND REPORTING
ORDINARILY ADHERED TO BY RESPONSIBLE PUBLISHERS. 

THE SITUATION IN WALKER IS CONSIDERABLY DIFFERENT.  THERE THE TRIAL
COURT FOUND THE EVIDENCE INSUFFICIENT TO SUPPORT MORE THAN A FINDING OF
EVEN ORDINARY NEGLIGENCE AND THE COURT OF CIVIL APPEALS SUPPORTED THE
TRIAL COURT'S VIEW OF THE EVIDENCE.  ORDINARILY WE WOULD, UNDER THE
GOVERNING CONSTITUTIONAL STANDARD, REVERSE THE DECISION BELOW ON THE
CONCURRENT FINDINGS RULE.  GRAVER TANK & MFG. CO. V. LINDE AIR PRODUCTS
CO., 336 U.S. 271, 275.  BUT, AS IN NEW YORK TIMES, WE THINK IT BETTER
TO FACE FOR OURSELVES THE QUESTION WHETHER THERE IS SUFFICIENT EVIDENCE
TO SUPPORT THE FINDING WE WOULD REQUIRE. 

IN CONTRAST TO THE BUTTS ARTICLE, THE DISPATCH WHICH CONCERNS US IN
WALKER WAS NEWS WHICH REQUIRED IMMEDIATE DISSEMINATION.  THE ASSOCIATED
PRESS RECEIVED THE INFORMATION FROM A CORRESPONDENT WHO WAS PRESENT AT
THE SCENE OF THE EVENTS AND GAVE EVERY INDICATION OF BEING TRUSTWORTHY
AND COMPETENT.  HIS DISPATCHES IN THIS INSTANCE, WITH ONE MINOR
EXCEPTION, WERE INTERNALLY CONSISTENT AND WOULD NOT HAVE SEEMED
UNREASONABLE TO ONE FAMILIAR WITH GENERAL WALKER'S PRIOR PUBLICIZED
STATEMENTS ON THE UNDERLYING CONTROVERSY.  (FN22)  CONSIDERING THE
NECESSITY FOR RAPID DISSEMINATION, NOTHING IN THIS SERIES OF EVENTS
GIVES THE SLIGHTEST HINT OF A SEVERE DEPARTURE FROM ACCEPTED PUBLISHING
STANDARDS.  WE THEREFORE CONCLUDE THAT GENERAL WALKER SHOULD NOT BE
ENTITLED TO DAMAGES FROM THE ASSOCIATED PRESS. 

                        VI. 

WE COME FINALLY TO CURTIS' CONTENTION THAT WHETHER OR NOT IT CAN BE
REQUIRED TO COMPENSATE BUTTS FOR ANY INJURY IT MAY HAVE CAUSED HIM, IT
CANNOT BE SUBJECTED TO AN ASSESSMENT FOR PUNITIVE DAMAGES LIMITED ONLY
BY THE "ENLIGHTENED CONSCIENCE" OF THE COMMUNITY.  CURTIS RECOGNIZES
THAT THE CONSTITUTION PRESENTS NO GENERAL BAR TO THE ASSESSMENT OF
PUNITIVE DAMAGES IN A CIVIL CASE, DAY V. WOODWORTH, 13 HOW.  363, 370
371, BUT CONTENDS THAT AN UNLIMITED PUNITIVE AWARD AGAINST A MAGAZINE
PUBLISHER CONSTITUTES AN EFFECTIVE PRIOR RESTRAINT BY GIVING THE JURY
THE POWER TO DESTROY THE PUBLISHER'S BUSINESS.  WE CANNOT ACCEPT THIS
REASONING.  PUBLISHERS LIKE CURTIS ENGAGE IN A WIDE VARIETY OF
ACTIVITIES WHICH MAY LEAD TO TORT SUITS WHERE PUNITIVE DAMAGES ARE A
POSSIBILITY.  TO EXEMPT A PUBLISHER, BECAUSE OF THE NATURE OF HIS
CALLING, FROM AN IMPOSITION GENERALLY EXACTED FROM OTHER MEMBERS OF THE
COMMUNITY, WOULD BE TO EXTEND A PROTECTION NOT REQUIRED BY THE
CONSTITUTIONAL GUARANTEE.  ASSOCIATED PRESS V. LABOR BOARD, 301 U.S.
103.  WE THINK THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF SPEECH AND
PRESS IS ADEQUATELY SERVED BY JUDICIAL CONTROL OVER EXCESSIVE JURY
VERDICTS, MANIFESTED IN THIS INSTANCE BY THE TRIAL COURT'S REMITTITUR,
AND BY THE GENERAL RULE THAT A VERDICT BASED ON JURY PREJUDICE CANNOT
BE SUSTAINED EVEN WHEN PUNITIVE DAMAGES ARE WARRANTED.  SEE, E.G.,
MINNEAPOLIS, ST. P. & S.S.M.R. CO. V. MOQUIN, 283 U.S. 520, 521. 

DESPITE THIS CONCLUSION, IT MIGHT BE ARGUED THAT AN AWARD OF PUNITIVE
DAMAGES CANNOT BE JUSTIFIED CONSTITUTIONALLY BY THE SAME DEGREE OF
MISCONDUCT REQUIRED TO SUPPORT A COMPENSATORY AWARD.  THE USUAL RULE IN
LIBEL ACTIONS, AND OTHER STATE-CREATED TORT ACTIONS, IS THAT A HIGHER
DEGREE OF FAULT IS NECESSARY TO SUSTAIN A PUNITIVE IMPOSITION THAN A
COMPENSATORY AWARD.  AND IT MIGHT BE ASSERTED THAT THE NEED TO
COMPENSATE THE INJURED PLAINTIFF IS NOT RELEVANT TO THE ISSUE OF
PUNITIVE DAMAGES IN LIBEL SINCE AN AWARD OF GENERAL DAMAGES COMPENSATES
FOR ANY POSSIBLE PECUNIARY AND INTANGIBLE HARM.  THUS THE ARGUMENT
WOULD BE THAT THE STRONG SPEECH AND PRESS INTEREST IN PUBLISHING
MATERIAL ON PUBLIC ISSUES, WHICH WE HAVE RECOGNIZED AS PARALLEL TO THE
INTEREST IN PUBLISHING POLITICAL CRITICISM PRESENT IN NEW YORK TIMES,
MUST BE SERVED BY A LIMITATION ON PUNITIVE DAMAGES RESTRICTING THEM TO
CASES OF "ACTUAL MALICE" AS DEFINED IN NEW YORK TIMES AND GARRISON V.
LOUISIANA, SUPRA. WE FIND THE FORCE OF ANY SUCH ARGUMENT QUITE
INSUFFICIENT TO OVERCOME THE COMPELLING CONTRARY CONSIDERATIONS, AND
THERE IS, MOREOVER, NOTHING IN ANY OF OUR PAST CASES WHICH SUGGESTS
THAT COMPENSATORY AND PUNITIVE DAMAGES ARE SUBJECT TO DIFFERENT
CONSTITUTIONAL STANDARDS OF MISCONDUCT. 

WHERE A PUBLISHER'S DEPARTURE FROM STANDARDS OF PRESS RESPONSIBILITY
IS SEVERE ENOUGH TO STRIP FROM HIM THE CONSTITUTIONAL PROTECTION OUR
DECISION ACKNOWLEDGES, WE THINK IT ENTIRELY PROPER FOR THE STATE TO ACT
NOT ONLY FOR THE PROTECTION OF THE INDIVIDUAL INJURED BUT TO SAFEGUARD
ALL THOSE SIMILARLY SITUATED AGAINST LIKE ABUSE.  MOREOVER, PUNITIVE
DAMAGES REQUIRE A FINDING OF "ILL WILL" UNDER GENERAL LIBEL LAW AND IT
IS NOT UNJUST THAT A PUBLISHER BE FORCED TO PAY FOR THE "VENTING OF HIS
SPLEEN" IN A MANNER WHICH DOES NOT MEET EVEN THE MINIMUM STANDARDS
REQUIRED FOR CONSTITUTIONAL PROTECTION.  ESPECIALLY IN THOSE CASES
WHERE CIRCUMSTANCES OUTSIDE THE PUBLICATION ITSELF REDUCE ITS IMPACT
SUFFICIENTLY TO MAKE A COMPENSATORY IMPOSITION AN INORDINATELY LIGHT
BURDEN, PUNITIVE DAMAGES SERVE A WHOLLY LEGITIMATE PURPOSE IN THE
PROTECTION OF INDIVIDUAL REPUTATION.  WE WOULD HOLD, THEREFORE, THAT
MISCONDUCT SUFFICIENT TO JUSTIFY THE AWARD OF COMPENSATORY DAMAGES ALSO
JUSTIFIES THE IMPOSITION OF A PUNITIVE AWARD, SUBJECT OF COURSE TO THE
LIMITATION THAT SUCH AWARD IS NOT DEMONSTRATED TO BE FOUNDED ON THE
MERE PREJUDICE OF THE JURY.  AS WE HAVE ALREADY NOTED (SUPRA, PP. 156
158) THE CASE ON PUNITIVE DAMAGES WAS PUT TO THE JURY UNDER
INSTRUCTIONS WHICH SATISFIED THE CONSTITUTIONAL TEST WE WOULD APPLY IN
CASES OF THIS KIND, AND THE EVIDENCE AMPLY SUPPORTED THE JURY'S
FINDINGS.  (FN23) 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN NO. 37
IS AFFIRMED.  THE JUDGMENT OF THE TEXAS COURT OF CIVIL APPEALS IN NO.
150 IS REVERSED AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THE OPINIONS THAT HAVE BEEN FILED
HEREIN BY THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE
BRENNAN.  IT IS SO ORDERED. 

FN1  SEE ALSO AFRO-AMERICAN PUBLISHING CO. V. JAFFE, 125 U.S. APP.
D.C. 70, 366 F.2D 649; WASHINGTON POST CO. V. KEOGH, 125 U.S. APP. D.C.
32, 365 F.2D 965; PAULING V. GLOBE-DEMOCRAT PUBLISHING CO., 362 F.2D
188; PAPE V. TIME, INC., 354 F.2D 558; PAULING V. NEWS SYNDICATE CO.,
INC., 335 F.2D 659; FIGNOLE V. CURTIS PUBLISHING CO., 247 F. SUPP. 595;
WALKER V. COURIER-JOURNAL & LOUISVILLE TIMES CO., 246 F. SUPP. 231;
UNITED MEDICAL LABS V. CBS, INC., 258 F. SUPP. 735; KLAHR V. WINTERBLE,
4 ARIZ. APP.  158, 418 P.2D 404; WALKER V. ASSOCIATED PRESS, - COLO. -
, 417 P.2D 486; POWELL V. MONITOR PUBLISHING CO., INC., 107 N.H. 83,
217 A.2D 193; EADIE V. POLE, 91 N.J. SUPER.  504, 221 A.2D 547; STATE
V. BROWNE, 86 N.J. SUPER.  217, 206 A.2D 591; PEOPLE V. MAGER, 25 APP.
DIV. 2D 363, 269 N.Y.S.2D 848; GILBERG V. GOFFI, 21 APP. DIV. 2D 517,
251 N.Y.S.2D 823; KRUTECH V. SCHIMMEL, 50 MISC. 2D 1052, 272 N.Y.S.2D
261; CABIN V. COMMUNITY NEWSPAPERS, INC., 50 MISC. 2D 574, 270 N.Y.S.2D
913; PAULING V. NATIONAL REVIEW, 49 MISC. 2D 975, 269 N.Y.S.2D 11;
BLOCK V. BENTON, 44 MISC. 2D 1053, 255 N.Y.S.2D 767; FEGLEY V.
MORTHIMER, 204 PA. SUPER.  54, 202 A.2D 125; TUCKER V. KILGORE, 388
S.W.2D 112 (KY.). 

FN2  IN ALLEN V. REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, 304
U.S. 439, THIS COURT DESCRIBED THE ATHLETIC ASSOCIATION AS A BODY
CARRYING ON "A BUSINESS COMPARABLE IN ALL ESSENTIALS TO THOSE USUALLY
CONDUCTED BY PRIVATE OWNERS."  ID., AT 451.  SECTION 32-153 OF THE
GEORGIA CODE SPECIFICALLY PROVIDES THAT ATHLETIC ASSOCIATIONS ARE NOT
TO BE CONSIDERED AGENCIES OF THE STATE. 

FN3  ACTUAL MALICE WAS DEFINED BY THE CHARGE AS ENCOMPASSING "THE
NOTION OF ILL WILL, SPITE, HATRED AND AN INTENT TO INJURE ONE.  MALICE
ALSO DENOTES A WANTON OR RECKLESS INDIFFERENCE OR CULPABLE NEGLIGENCE
WITH REGARD TO THE RIGHTS OF OTHERS."  THE JURY WAS TOLD THAT WHETHER
"ACTUAL MALICE OR WANTON OR RECKLESS INDIFFERENCE HAS BEEN ESTABLISHED
MUST BE DETERMINED FROM ALL OF THE EVIDENCE IN THE CASE."  THE TRIAL
COURT THEN DIRECTED THE JURY'S ATTENTION TO THE CIRCUMSTANCES OF
PREPARATION.  THE IMPACT OF THE CHARGE IS CONSIDERED IN MORE DETAIL AT
156-158, INFRA. 

FN4  TWO PARTICULAR STATEMENTS WERE AT ISSUE, THE REMARK THAT "WALKER
ASSUMED COMMAND OF THE CROWD," AND THE ACCUSATION THAT WALKER LED A
CHARGE AGAINST THE MARSHALS. 

FN5  SEE TEHAN V. SHOTT, 382 U.S. 406, 409, N. 3; LINKLETTER V.
WALKER, 381 U.S. 618, 622-629; GRIFFIN V. CALIFORNIA, 380 U.S. 609;
WHITE V. MARYLAND, 373 U.S. 59. 

FN6  SEE ALSO ACKERMANN V. UNITED STATES, 340 U.S. 193, 198. 

FN7  IN BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, THE COURT HAD UPHELD
AN ILLINOIS GROUP LIBEL STATUTE BUT THE MAJORITY HAD WARNED THAT: 

"'WHILE THIS COURT SITS' IT RETAINS AND EXERCISES AUTHORITY TO
NULLIFY ACTION WHICH ENCROACHES ON FREEDOM OF UTTERANCE UNDER THE GUISE
OF PUNISHING LIBEL."  ID., AT 263-264.  THERE WERE ALSO FOUR VIGOROUS
DISSENTERS TO THE HOLDING IN THAT CASE.  AN ARTICLE APPEARING IN THE
JUNE 1962 NEW YORK UNIVERSITY LAW REVIEW HAD QUOTED MR. JUSTICE BLACK
AS BELIEVING THAT "THERE SHOULD BE NO LIBEL OR DEFAMATION LAW IN THE
UNITED STATES  ...  ."  CAHN, JUSTICE BLACK AND FIRST AMENDMENT
"ABSOLUTES": A PUBLIC INTERVIEW, 37 N.Y.U.L. REV.  549, 557. 

FN8  IN ROBERTSON V. BALDWIN, 165 U.S. 275, 281, THE COURT SAID:
"THUS, THE FREEDOM OF SPEECH AND OF THE PRESS (ART. 1) DOES NOT PERMIT
THE PUBLICATION OF LIBELS, BLASPHEMOUS OR INDECENT ARTICLES, OR OTHER
PUBLICATIONS INJURIOUS TO PUBLIC MORALS OR PRIVATE REPUTATION  ...  ." 
THAT SENTIMENT WAS REPEATED IN A NUMBER OF CASES INCLUDING BEAUHARNAIS
V. ILLINOIS, SUPRA, N. 7.  SEE NEAR V. MINNESOTA, 283 U.S. 697, 715;
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568. 

FN9  SEE, E.G., SWEENEY V. PATTERSON, 76 U.S. APP. D.C. 23, 128 F.2D
457; HENDRIX V. MOBILE REGISTER, 202 ALA. 616, 81 SO. 558. 

FN10  EVEN AFTER OUR DECISION IN NEW YORK TIMES WAS BEFORE HIM, THE
TRIAL JUDGE HELD IT INAPPLICABLE.  IT IS ALMOST CERTAIN THAT HE WOULD
HAVE REBUFFED ANY EFFORT TO INTERPOSE GENERAL CONSTITUTIONAL DEFENSES
AT THE TIME OF TRIAL.  SEE COMMENT, WAIVER OF A PREVIOUSLY UNRECOGNIZED
DEFENSE:  MUST LAWYERS BE SEERS?, 114 U. PA. L. REV. 451. 

FN11  THE MAJORITY OPINION IN TIME, INC. V. HILL, 385 U.S. 374, WAS
LIMITED TO THE CONSIDERATION OF NONDEFAMATORY MATTER.  ID., AT 391. 

FN12  SCHENCK V. UNITED STATES, 249 U.S. 47 (HOLMES, J.); ABRAMS V.
UNITED STATES, 250 U.S. 616, 624 (HOLMES, J., DISSENTING); WHITNEY V.
CALIFORNIA, 274 U.S. 357, 372 (BRANDEIS, J., CONCURRING). 

FN13  SEE LEVY, LEGACY OF SUPPRESSION.  THE PHRASE IS FROM THE
COURT'S OPINION IN TIME, INC. V. HILL, SUPRA, AT 389. 

FN14  E.G., 48 STAT. 82, AS AMENDED, 15 U.S.C. SEC 77K (PENALIZING
NEGLIGENT MISSTATEMENT). 

FN15 18 U.S.C. SEC 1341. 

FN16  SEE TRAYLOR ENGINEERING & MFG. CO. V. NATIONAL CONTAINER CORP.,
45 DEL. 143, 70 A.2D 9; RESTATEMENT, TORTS SEC 525 (DECEIT); NASH V.
MINNESOTA TITLE INS. & TRUST CO., 163 MASS. 574, 40 N.E. 1039
(NEGLIGENT MISREPRESENTATION). 

FN17  SEE 1 HARPER & JAMES, THE LAW OF TORTS SEC 5.20.. 

FN18  SOME PRIVILEGES SUCH AS THE ONE PERTAINING TO REPORTS OF
JUDICIAL PROCEEDINGS ARE RECOGNIZED AS ABSOLUTE.  OTHERS, SUCH AS THE
FAIR-COMMENT PRIVILEGE ARE RECOGNIZED ONLY AS CONDITIONAL PRIVILEGES
AND MAY BE VITIATED BY PROOF OF ACTUAL MALICE.  SEE GENERALLY PROSSER,
THE LAW OF TORTS SECS 109,110. 

FN19  NOR DOES ANYTHING WE HAVE SAID TOUCH, IN ANY WAY, LIBEL OR
OTHER TORT ACTIONS NOT INVOLVING PUBLIC FIGURES OR MATTERS OF PUBLIC
INTEREST. 

FN20  COUNSEL FOR BUTTS CONTINUALLY PRESSED UPON THE JURY IN ARGUMENT
THAT THE DEFENDANT HAD FAILED TO EXERCISE A MINIMUM OF CARE.  HE DID
NOT SERIOUSLY CONTEND THAT THE SATURDAY EVENING POST WAS ACTUATED BY
PRE-EXISTING ANIMOSITY TOWARD BUTTS.  ARGUING THAT THE MISQUOTATIONS
WHICH WERE SHOWN TO BE PRESENT WERE PROOF OF MALICE HE STATED:  "I SAY
THAT IS NOT FAIR JOURNALISM; I SAY THAT IS NOT TRUE, CAREFUL
REPORTING."  AFTER REVIEWING THE FAILURE OF CURTIS TO INTERVIEW
CARMICHAEL (SEE P. 157, INFRA) OR TO CHECK THE GAME FILMS, HE ASKED THE
JURY:  "AGAIN, IS THAT GOOD REPORTING?  IS THAT WHAT THE FIELD OR THE
PROFESSION OF JOURNALISM OWES YOU AND OWES ME  ...  WHEN IT IS GETTING
READY TO WRITE AN ARTICLE WHICH IT KNOWS AND WHICH IT STATES THEREIN
THAT IT IS GOING TO RUIN US ...  ."  THE GIST OF BUTTS' CONTENTION ON
"ACTUAL MALICE" WAS THAT CURTIS HAD BEEN ANXIOUS TO PUBLISH AN EXPOSE
AND HAD THUS WANTONLY AND RECKLESSLY SEIZED ON A QUESTIONABLE AFFIDAVIT
FROM BURNETT.  IT IS THIS THEORY WHICH WE FEEL THAT THE JURY MUST HAVE
ACCEPTED IN AWARDING PUNITIVE DAMAGES.    FN21  IT IS INCONCEIVABLE
THAT THE JURY MIGHT HAVE TREATED THE "INVESTIGATORY" EVIDENCE
DIFFERENTLY IF IT HAD BEEN PRESENTED WITH RESPECT TO COMPENSATORY
DAMAGES RATHER THAN WITH REGARD TO PUNITIVE DAMAGES. 

FN22  ON SEPTEMBER 26, 1962, WALKER HAD MADE A STATEMENT ON RADIO
STATION KWKH AT SHREVEPORT, LOUISIANA, URGING PEOPLE TO "RISE TO A
STAND BESIDE GOVERNOR ROSS BARNETT AT JACKSON, MISSISSIPPI."  HE
CONTENDED THAT THE PEOPLE HAD "TALKED, LISTENED AND BEEN PUSHED AROUND
FAR TOO MUCH  ...  ."  HE PROMISED THAT HE WOULD "BE THERE," ON "THE
RIGHT SIDE."  THE NEXT MORNING IN A TELEVISION APPEARANCE IN DALLAS HE
REPEATED THE SAME SENTIMENTS, AND HE SET OUT HIS VIEWS ONCE AGAIN FROM
NEW ORLEANS ON THE EVENING OF SEPTEMBER 28, 1962.  ON SEPTEMBER 29,
1962, WALKER ARRIVED IN JACKSON, MISSISSIPPI, AND HELD ANOTHER PRESS
AND TELEVISION CONFERENCE IN WHICH HE CALLED FOR "VIOLENT VOCAL
PROTEST."  ON THE AFTERNOON OF SEPTEMBER 30, 1962, WALKER HELD A FINAL
PRESS CONFERENCE AT WHICH HE AGAIN URGED DEFIANCE OF COURT ORDERS AND
FEDERAL POWER. 

FN23  IT SHOULD ALSO BE NOTED THAT PRIOR TO PUBLICATION THE SATURDAY
EVENING POST HAD BEEN NOTIFIED BOTH BY BUTTS AND HIS DAUGHTER THAT THE
MATERIAL ABOUT TO BE PRINTED WAS FALSE.  DESPITE THESE WARNINGS, AND
THE FACT THAT NO MEMBER OF THE STAFF HAD EVER EVEN SEEN BURNETT'S
CRUCIAL NOTES, NO FURTHER EFFORTS AT INVESTIGATION WERE UNDERTAKEN
PRIOR TO PUBLICATION.  IT MIGHT INDEED BE ARGUED THAT THIS CONDUCT
WOULD HAVE SUFFICED, UNDER PROPER INSTRUCTIONS, TO SATISFY EVEN THE
"ACTUAL MALICE" STANDARD OF NEW YORK TIMES, THE NOTICE TO THE SATURDAY
EVENING POST BEING CONSIDERED AS FURNISHING THE NECESSARY "MENTAL
ELEMENT."  NEW YORK TIMES, SUPRA, AT 287. 

MR. CHIEF JUSTICE WARREN, CONCURRING IN THE RESULT. 

WHILE I AGREE WITH THE RESULTS ANNOUNCED BY MR. JUSTICE HARLAN IN
BOTH OF THESE CASES, I FIND MYSELF IN DISAGREEMENT WITH HIS STATED
REASONS FOR REACHING THOSE RESULTS.  OUR DIFFERENCE STEMS FROM HIS
DEPARTURE FROM THE TEACHING OF NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254 (1964), TO WHICH WE BOTH SUBSCRIBED ONLY THREE YEARS AGO. 

I. 

IN THE NEW YORK TIMES CASE, WE HELD THAT A STATE CANNOT, CONSISTENTLY
WITH THE FIRST AND FOURTEENTH AMENDMENTS, AWARD DAMAGES TO A "PUBLIC
OFFICIAL" FOR A DEFAMATORY FALSEHOOD RELATING TO HIS OFFICIAL CONDUCT
UNLESS THE VERDICT IS BASED ON PROOF OF "ACTUAL MALICE" - THAT IS,
PROOF THAT THE DEFAMATORY STATEMENT WAS MADE "WITH KNOWLEDGE THAT IT
WAS FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR NOT." 
376 U.S., AT 280.  THE PRESENT CASES INVOLVE NOT "PUBLIC OFFICIALS,"
BUT "PUBLIC FIGURES" WHOSE VIEWS AND ACTIONS WITH RESPECT TO PUBLIC
ISSUES AND EVENTS ARE OFTEN OF AS MUCH CONCERN TO THE CITIZEN AS THE
ATTITUDES AND BEHAVIOR OF "PUBLIC OFFICIALS" WITH RESPECT TO THE SAME
ISSUES AND EVENTS. 

ALL OF US AGREE THAT THE BASIC CONSIDERATIONS UNDERLYING THE FIRST
AMENDMENT REQUIRE THAT SOME LIMITATIONS BE PLACED ON THE APPLICATION OF
STATE LIBEL LAWS TO "PUBLIC FIGURES" AS WELL AS "PUBLIC OFFICIALS." 
SIMILARLY, THE SEVEN MEMBERS OF THE COURT WHO DEEM IT NECESSARY TO PASS
UPON THE QUESTION AGREE THAT THE RESPONDENTS IN THESE CASES ARE "PUBLIC
FIGURES" FOR FIRST AMENDMENT PURPOSES.  HAVING REACHED THIS POINT,
HOWEVER, MR. JUSTICE HARLAN'S OPINION DEPARTS FROM THE STANDARD OF NEW
YORK TIMES AND SUBSTITUTES IN CASES INVOLVING "PUBLIC FIGURES" A
STANDARD THAT IS BASED ON "HIGHLY UNREASONABLE CONDUCT" AND IS PHRASED
IN TERMS OF "EXTREME DEPARTURE FROM THE STANDARDS OF INVESTIGATION AND
REPORTING ORDINARILY ADHERED TO BY RESPONSIBLE PUBLISHERS" (ANTE, P.
155).  I CANNOT BELIEVE THAT A STANDARD WHICH IS BASED ON SUCH AN
UNUSUAL AND UNCERTAIN FORMULATION COULD EITHER GUIDE A JURY OF LAYMEN
OR AFFORD THE PROTECTION FOR SPEECH AND DEBATE THAT IS FUNDAMENTAL TO
OUR SOCIETY AND GUARANTEED BY THE FIRST AMENDMENT. 

TO ME, DIFFERENTIATION BETWEEN "PUBLIC FIGURES" AND "PUBLIC
OFFICIALS" AND ADOPTION OF SEPARATE STANDARDS OF PROOF FOR EACH HAVE NO
BASIS IN LAW, LOGIC, OR FIRST AMENDMENT POLICY.  INCREASINGLY IN THIS
COUNTRY, THE DISTINCTIONS BETWEEN GOVERNMENTAL AND PRIVATE SECTORS ARE
BLURRED.  SINCE THE DEPRESSION OF THE 1930'S AND WORLD WAR II THERE HAS
BEEN A RAPID FUSION OF ECONOMIC AND POLITICAL POWER, A MERGING OF
SCIENCE, INDUSTRY, AND GOVERNMENT, AND A HIGH DEGREE OF INTERACTION
BETWEEN THE INTELLECTUAL, GOVERNMENTAL, AND BUSINESS WORLDS. 
DEPRESSION, WAR, INTERNATIONAL TENSIONS, NATIONAL AND INTERNATIONAL
MARKETS, AND THE SURGING GROWTH OF SCIENCE AND TECHNOLOGY HAVE
PRECIPITATED NATIONAL AND INTERNATIONAL PROBLEMS THAT DEMAND NATIONAL
AND INTERNATIONAL SOLUTIONS.  WHILE THESE TRENDS AND EVENTS HAVE
OCCASIONED A CONSOLIDATION OF GOVERNMENTAL POWER, POWER HAS ALSO BECOME
MUCH MORE ORGANIZED IN WHAT WE HAVE COMMONLY CONSIDERED TO BE THE
PRIVATE SECTOR.  IN MANY SITUATIONS, POLICY DETERMINATIONS WHICH
TRADITIONALLY WERE CHANNELED THROUGH FORMAL POLITICAL INSTITUTIONS ARE
NOW ORIGINATED AND IMPLEMENTED THROUGH A COMPLEX ARRAY OF BOARDS,
COMMITTEES, COMMISSIONS, CORPORATIONS, AND ASSOCIATIONS, SOME ONLY
LOOSELY CONNECTED WITH THE GOVERNMENT.  THIS BLENDING OF POSITIONS AND
POWER HAS ALSO OCCURRED IN THE CASE OF INDIVIDUALS SO THAT MANY WHO DO
NOT HOLD PUBLIC OFFICE AT THE MOMENT ARE NEVERTHELESS INTIMATELY
INVOLVED IN THE RESOLUTION OF IMPORTANT PUBLIC QUESTIONS OR, BY REASON
OF THEIR FAME, SHAPE EVENTS IN AREAS OF CONCERN TO SOCIETY AT LARGE. 

VIEWED IN THIS CONTEXT, THEN, IT IS PLAIN THAT ALTHOUGH THEY ARE NOT
SUBJECT TO THE RESTRAINTS OF THE POLITICAL PROCESS, "PUBLIC FIGURES,"
LIKE "PUBLIC OFFICIALS," OFTEN PLAY AN INFLUENTIAL ROLE IN ORDERING
SOCIETY.  AND SURELY AS A CLASS THESE "PUBLIC FIGURES" HAVE AS READY
ACCESS AS "PUBLIC OFFICIALS" TO MASS MEDIA OF COMMUNICATION, BOTH TO
INFLUENCE POLICY AND TO COUNTER CRITICISM OF THEIR VIEWS AND
ACTIVITIES.  OUR CITIZENRY HAS A LEGITIMATE AND SUBSTANTIAL INTEREST IN
THE CONDUCT OF SUCH PERSONS, AND FREEDOM OF THE PRESS TO ENGAGE IN
UNINHIBITED DEBATE ABOUT THEIR INVOLVEMENT IN PUBLIC ISSUES AND EVENTS
IS AS CRUCIAL AS IT IS IN THE CASE OF "PUBLIC OFFICIALS."  THE FACT
THAT THEY ARE NOT AMENABLE TO THE RESTRAINTS OF THE POLITICAL PROCESS
ONLY UNDERSCORES THE LEGITIMATE AND SUBSTANTIAL NATURE OF THE INTEREST,
SINCE IT MEANS THAT PUBLIC OPINION MAY BE THE ONLY INSTRUMENT BY WHICH
SOCIETY CAN ATTEMPT TO INFLUENCE THEIR CONDUCT. 

I THEREFORE ADHERE TO THE NEW YORK TIMES STANDARD IN THE CASE OF
"PUBLIC FIGURES" AS WELL AS "PUBLIC OFFICIALS."  IT IS A MANAGEABLE
STANDARD, READILY STATED AND UNDERSTOOD, WHICH ALSO BALANCES TO A
PROPER DEGREE THE LEGITIMATE INTERESTS TRADITIONALLY PROTECTED BY THE
LAW OF DEFAMATION.  ITS DEFINITION OF "ACTUAL MALICE" IS NOT SO
RESTRICTIVE THAT RECOVERY IS LIMITED TO SITUATIONS WHERE THERE IS
"KNOWING FALSEHOOD" ON THE  PART OF THE PUBLISHER OF FALSE AND
DEFAMATORY MATTER.  "RECKLESS DISREGARD" FOR THE TRUTH OR FALSITY,
MEASURED BY THE CONDUCT OF THE PUBLISHER, WILL ALSO EXPOSE HIM TO
LIABILITY FOR PUBLISHING FALSE MATERIAL WHICH IS INJURIOUS TO
REPUTATION.  MORE SIGNIFICANTLY, HOWEVER, THE NEW YORK TIMES STANDARD
IS AN IMPORTANT SAFEGUARD FOR THE RIGHTS OF THE PRESS AND PUBLIC TO
INFORM AND BE INFORMED ON MATTERS OF LEGITIMATE INTEREST.  EVENLY
APPLIED TO CASES INVOLVING "PUBLIC MEN" - WHETHER THEY BE "PUBLIC
OFFICIALS" OR "PUBLIC FIGURES" - IT WILL AFFORD THE NECESSARY
INSULATION FOR THE FUNDAMENTAL INTERESTS WHICH THE FIRST AMENDMENT WAS
DESIGNED TO PROTECT. 

                           II. 

I HAVE NO DIFFICULTY IN CONCLUDING THAT NO. 150, ASSOCIATED PRESS V.
WALKER, MUST BE REVERSED SINCE IT IS IN CLEAR CONFLICT WITH NEW YORK
TIMES.  THE CONSTITUTIONAL DEFENSES WERE PROPERLY RAISED AND PRESERVED
BY THE PETITIONER.  THE TRIAL JUDGE EXPRESSLY RULED THAT NO SHOWING OF
MALICE IN ANY SENSE HAD BEEN MADE, AND HE REVERSED AN AWARD OF PUNITIVE
DAMAGES FOR THAT REASON.  THE SEVEN MEMBERS OF THIS COURT WHO REACH THE
QUESTION AGREE WITH THAT CONCLUSION, AND ALL AGREE THAT THE COURTS
BELOW ERRED IN HOLDING THE FIRST AMENDMENT INAPPLICABLE.  UNDER ANY
REASONING, GENERAL WALKER WAS A PUBLIC MAN IN WHOSE PUBLIC CONDUCT
SOCIETY AND THE PRESS HAD A LEGITIMATE AND SUBSTANTIAL INTEREST. 

         III. 

BUT NO. 37, CURTIS PUBLISHING CO. V. BUTTS, PRESENTS AN ENTIRELY
DIFFERENT SITUATION.  THERE, NO FIRST AMENDMENT DEFENSES WERE RAISED BY
THE PETITIONER UNTIL AFTER THE TRIAL.  BECAUSE OF THIS FAILURE AND
BECAUSE THE CASE WAS TRIED BEFORE OUR DECISION IN NEW YORK TIMES, THE
TRIAL JUDGE DID NOT INSTRUCT THE JURY IN TERMS OF THE PRECISE
FORMULATION WE ADOPTED.  IN CONNECTION WITH THE ISSUE OF PUNITIVE
DAMAGES, HOWEVER, THE TRIAL JUDGE DID GIVE AN "ACTUAL MALICE"
INSTRUCTION WHICH INVOKED THE ELEMENTS WE LATER HELD NECESSARY IN NEW
YORK TIMES.  HE INSTRUCTED THE JURY THAT IT WOULD HAVE TO FIND "ACTUAL
MALICE" BEFORE AWARDING PUNITIVE DAMAGES, AND HE CONTINUED BY DEFINING
"ACTUAL MALICE" AS DENOTING "WANTON OR RECKLESS INDIFFERENCE OR
CULPABLE NEGLIGENCE WITH REGARD TO THE RIGHTS OF OTHERS" AND AS
INCLUDING NOTIONS OF "ILL WILL, SPITE, HATRED AND AN INTENT TO INJURE
ONE."   UNDER THE GEORGIA LAW OF DEFAMATION WHICH GOVERNED THE CASE,
THE JURY WAS ALSO SPECIFICALLY REQUIRED TO FIND THAT THE DEFAMATORY
STATEMENTS WERE FALSE BEFORE IT COULD AWARD ANY DAMAGES, AND IT WAS SO
INSTRUCTED.  WITH THE JURY'S ATTENTION THUS FOCUSED ON THIS THRESHOLD
REQUIREMENT OF FALSITY, THE REFERENCES IN THE INSTRUCTIONS TO WANTON OR
RECKLESS INDIFFERENCE AND CULPABLE NEGLIGENCE MOST PROBABLY RESULTED IN
A VERDICT BASED ON THE REQUIREMENT OF RECKLESS DISREGARD FOR THE TRUTH
OF WHICH WE SPOKE IN NEW YORK TIMES.  (FN1)  ALTHOUGH THE "ACTUAL
MALICE" INSTRUCTIONS WERE NOT ALSO GIVEN IN CONNECTION WITH THE
COMPENSATORY DAMAGE ISSUE, IT IS DIFFICULT TO CONCEIVE HOW PETITIONER
COULD HAVE BEEN PREJUDICED BY THAT FAILURE IN VIEW OF THE FACT THAT THE
JURY, GUIDED BY "ACTUAL MALICE" INSTRUCTIONS, AWARDED $3,000,000 IN
PUNITIVE DAMAGES.  (FN2) 

UNQUESTIONABLY, IN CASES TRIED AFTER OUR DECISION IN NEW YORK TIMES
WE SHOULD REQUIRE STRICT COMPLIANCE WITH THE STANDARD WE ESTABLISHED. 
WE SHOULD NOT, HOWEVER, BE SO INFLEXIBLE IN JUDGING CASES TRIED PRIOR
THERETO, ESPECIALLY WHEN, AS HERE, THE TRIAL JUDGE - UNAIDED BY ADVICE
OR OBJECTIONS FROM COUNSEL - RECOGNIZED THE ESSENTIAL PRINCIPLE AND
CONFORMED WITH IT TO A SUBSTANTIAL DEGREE.  MOREOVER, AFTER THE NEW
YORK TIMES RULE WAS BROUGHT TO THE TRIAL JUDGE'S ATTENTION IN A POST
TRIAL MOTION, HE REVIEWED THE RECORD IN LIGHT OF THAT PRECISE STANDARD
AND HELD THAT THE JURY VERDICT SHOULD NOT BE DISTURBED SINCE "THERE WAS
AMPLE EVIDENCE FROM WHICH A JURY COULD HAVE CONCLUDED THAT THERE WAS
RECKLESS DISREGARD BY THE PETITIONER OF WHETHER THE ARTICLE WAS FALSE
OR NOT." 

AN ADDITIONAL FACTOR LEADS ME TO THE CONCLUSION THAT WE SHOULD NOT
INSIST ON THE FINANCIAL AND EMOTIONAL EXPENSES OF A RETRIAL HERE MERELY
BECAUSE THE TRIAL JUDGE'S INSTRUCTIONS WERE NOT GIVEN IN THE PRECISE
TERMS OF THE PRESENT CONSTITUTIONAL STANDARD.  (FN3)  THAT FACTOR, TO
WHICH I BRIEFLY ADVERTED ABOVE, WAS THE CHOICE OF THE PETITIONER IN
THIS CASE TO RAISE ONLY TRUTH AS A DEFENSE AND TO OMIT IN ITS PLEADINGS
AND AT THE TRIAL ANY REFERENCE TO POSSIBLE FIRST AMENDMENT DEFENSES OR
EVEN TO THE CONDITIONAL PRIVILEGE PROVIDED BY GEORGIA LAW FOR "COMMENTS
UPON THE ACTS OF PUBLIC MEN IN THEIR PUBLIC CAPACITY AND WITH REFERENCE
THERETO."  (FN4)  I USE THE WORD "CHOICE" IN THIS CONNECTION, BECAUSE
THE FACTS LEAD ME, AS THEY DID THE COURT OF APPEALS, TO THE FIRM
CONCLUSION THAT THE OMISSIONS WERE DELIBERATE.  ALTHOUGH THIS TRIAL
OCCURRED BEFORE OUR DECISION IN NEW YORK TIMES, WE HAD GRANTED
CERTIORARI TO REVIEW THAT CASE EVEN BEFORE THE COMPLAINT HERE WAS
FILED.  (FN5)  THE ALABAMA LAW FIRM WHICH HAD REPRESENTED THE NEW YORK
TIMES IN THE STATE COURTS WAS INVOLVED IN THE TRIAL OF THIS CASE.  LEAD
COUNSEL IN THE CASES CONFERRED PERIODICALLY, AND ONE OF THE MEMBERS OF
THE ALABAMA LAW FIRM REFERRED TO ABOVE SAT AT THE COUNSEL TABLE
THROUGHOUT THIS TRIAL.  THE SAME ALABAMA LAW FIRM WAS RETAINED TO
REPRESENT PETITIONER IN A LAWSUIT FILED BY COACH PAUL BRYANT, WHO WAS
ALSO LIBELED BY THE MAGAZINE ARTICLE HERE IN QUESTION.  FIRST AMENDMENT
DEFENSES WERE RAISED BOTH AT THE TRIAL OF THE NEW YORK TIMES CASE AND
BY THE PLEADINGS IN THE BRYANT LAWSUIT WHICH WAS SETTLED FOR A
SUBSTANTIAL SUM OF MONEY.  BUT COUNSEL DID NOT RAISE SUCH DEFENSES
HERE.  GIVEN THE IMPORTANCE OF THIS CASE TO PETITIONER AND THE
INTERPLAY BETWEEN OVERLAPPING COUNSEL ALIGNED ON THE SAME SIDES OF
RELATED LAWSUITS, I CAN ONLY CONCLUDE THAT TACTICAL OR PUBLIC RELATIONS
CONSIDERATIONS EXPLAIN THE FAILURE HERE TO DEFEND ON FIRST AMENDMENT
GROUNDS. 

                               IV. 

SATISFIED, AS I AM, THAT UNDER THE CIRCUMSTANCES OF THE BUTTS CASE NO
RETRIAL SHOULD BE ORDERED MERELY BECAUSE OF THE INSTRUCTIONS, I TURN
NOW TO THE FINAL DUTY WHICH THIS COURT HAS WHEN VIOLATIONS OF
FUNDAMENTAL CONSTITUTIONAL PRINCIPLES ARE ALLEGED.  WE MUST REVIEW THE
EVIDENCE TO ASCERTAIN WHETHER THE JUDGMENT CAN STAND CONSISTENTLY WITH
THOSE PRINCIPLES.  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 285
(1964); SPEISER V. RANDALL, 357 U.S. 513, 525 (1958). 

THE PETITIONER IN THIS CASE IS A MAJOR FACTOR IN THE PUBLISHING
BUSINESS.  AMONG ITS PUBLICATIONS IS THE SATURDAY EVENING POST WHICH
PUBLISHED THE DEFAMATORY FALSEHOODS HERE IN QUESTION.  APPARENTLY
BECAUSE OF DECLINING ADVERTISING REVENUES, AN EDITORIAL DECISION WAS
MADE TO "CHANGE THE IMAGE" OF THE SATURDAY EVENING POST WITH THE HOPE
THAT CIRCULATION AND ADVERTISING REVENUES WOULD THEREBY BE INCREASED. 
THE STARTING POINT FOR THIS CHANGE OF IMAGE WAS AN ANNOUNCEMENT THAT
THE MAGAZINE WOULD EMBARK UPON A PROGRAM OF "SOPHISTICATED MUCKRAKING,"
(FN6) DESIGNED TO "PROVOKE PEOPLE, MAKE THEM MAD."    SHORTLY
THEREAFTER, AND AS AN APPARENT IMPLEMENTATION OF THE NEW POLICY, THE
SATURDAY EVENING POST PURCHASED THE RIGHTS TO THE ARTICLE WHICH FORMED
THE SUBJECT MATTER OF THIS CASE.  THE SLIPSHOD AND SKETCHY
INVESTIGATORY TECHNIQUES EMPLOYED TO CHECK THE VERACITY OF THE SOURCE
AND THE INFERENCES TO BE DRAWN FROM THE FEW FACTS BELIEVED TO BE TRUE
ARE DETAILED AT LENGTH IN THE OPINION OF MR. JUSTICE HARLAN.  SUFFICE
IT TO SAY THAT LITTLE INVESTIGATIVE EFFORT WAS EXPENDED INITIALLY, AND
NO ADDITIONAL INQUIRIES WERE MADE EVEN AFTER THE EDITORS WERE NOTIFIED
BY RESPONDENT AND HIS DAUGHTER THAT THE ACCOUNT TO BE PUBLISHED WAS
ABSOLUTELY UNTRUE.  INSTEAD, THE SATURDAY EVENING POST PROCEEDED ON ITS
RECKLESS COURSE WITH FULL KNOWLEDGE OF THE HARM THAT WOULD LIKELY
RESULT FROM PUBLICATION OF THE ARTICLE.  THIS KNOWLEDGE WAS SIGNALED BY
THE STATEMENTS AT THE CONCLUSION OF THE ARTICLE THAT "WALLY BUTTS WILL
NEVER HELP ANY FOOTBALL TEAM AGAIN" AND "CAREERS WILL BE RUINED, THAT
IS SURE." 

I AM SATISFIED THAT THE EVIDENCE HERE DISCLOSES THAT DEGREE OF
RECKLESS DISREGARD FOR THE TRUTH OF WHICH WE SPOKE IN NEW YORK TIMES
AND GARRISON.  FREEDOM OF THE PRESS UNDER THE FIRST AMENDMENT DOES NOT
INCLUDE ABSOLUTE LICENSE TO DESTROY LIVES OR CAREERS. 

FN1 WE HELD UNCONSTITUTIONAL IN GARRISON V. LOUISIANA, 379 U.S. 64
(1964), A CRIMINAL DEFAMATION STATUTE WHICH AUTHORIZED CONVICTION ON
PROOF THAT A DEFAMATORY STATEMENT HAD BEEN MOTIVATED BY ILL WILL.  THE
STATUTE DID NOT REQUIRE THAT THE DEFAMATORY STATEMENT BE FALSE TO
SUSTAIN SUCH A CONVICTION. 

FN2  IN THE NEW YORK TIMES CASE, "ACTUAL MALICE" INSTRUCTIONS WERE
GIVEN IN CONNECTION WITH PUNITIVE DAMAGES.  HOWEVER, WE NOTED: 

"WHILE ALABAMA LAW APPARENTLY REQUIRES PROOF OF ACTUAL MALICE FOR AN
AWARD OF PUNITIVE DAMAGES, WHERE GENERAL DAMAGES ARE CONCERNED MALICE
IS 'PRESUMED'.  SUCH A PRESUMPTION IS INCONSISTENT WITH THE FEDERAL
RULE  ...  .  SINCE THE TRIAL JUDGE DID NOT INSTRUCT THE JURY TO
DIFFERENTIATE BETWEEN GENERAL AND PUNITIVE DAMAGES, IT MAY BE THAT THE
VERDICT WAS WHOLLY AN AWARD OF ONE OR THE OTHER.  BUT IT IS IMPOSSIBLE
TO KNOW, IN VIEW OF THE GENERAL VERDICT RETURNED.  BECAUSE OF THIS
UNCERTAINTY, THE JUDGMENT MUST BE REVERSED AND THE CASE REMANDED."  376
U.S., AT 283-284. 

THE JURY IN THE PRESENT CASE WAS REQUIRED TO SEPARATE COMPENSATORY
AND PUNITIVE DAMAGES. 

FN3  CF. TIME, INC. V. HILL, 385 U.S. 374, 411 (1967)(DISSENTING
OPINION OF MR. JUSTICE FORTAS). 

FN4  GA. CODE ANN. SEC 105-709(6) PROVIDES: 

"PRIVILEGED COMMUNICATIONS.  - THE FOLLOWING ARE DEEMED PRIVILEGED
COMMUNICATIONS: 

     *         *         *         *         * 

"6.  COMMENTS UPON THE ACTS OF PUBLIC MEN IN THEIR PUBLIC CAPACITY
AND WITH REFERENCE THERETO." 

THIS PRIVILEGE IS QUALIFIED BY GA. CODE ANN. SEC 105-710, WHICH
PROVIDES: 

"MALICIOUS USE OF PRIVILEGE.  - IN EVERY CASE OF PRIVILEGED
COMMUNICATIONS, IF THE PRIVILEGE IS USED MERELY AS A CLOAK FOR VENTING
PRIVATE MALICE, AND NOT BONA FIDE IN PROMOTION OF THE OBJECT FOR WHICH
THE PRIVILEGE IS GRANTED, THE PARTY DEFAMED SHALL HAVE A RIGHT OF
ACTION." 

FN5  CERTIORARI WAS GRANTED IN NEW YORK TIMES CO. V. SULLIVAN ON
JANUARY 7, 1963.  371 U.S. 946.  THE COMPLAINT IN THIS CASE WAS FILED
APPROXIMATELY 2 1/2 MONTHS LATER, ON MARCH 25, 1963.  COUNSEL HERE
COULD NOT HAVE ANTICIPATED THE PRECISE STANDARD WE ANNOUNCED IN NEW
YORK TIMES.  IN THE BRYANT LAWSUIT AND, OF COURSE, IN THE NEW YORK
TIMES CASE ITSELF, COUNSEL DID, HOWEVER, RAISE GENERAL FIRST AMENDMENT
DEFENSES.  NO REFERENCE WHATEVER TO THE FIRST AMENDMENT WAS MADE BY
DEFENSE COUNSEL IN THE TRIAL OF THIS CASE. 

FN6  WEBSTER'S NEW INTERNATIONAL DICTIONARY (2D ED., UNABR.), P.
1606, REPORTS THE SOURCE OF THE TERM "MUCKRAKE" AS FOLLOWS: 

"ON APRIL 14, 1906, PRESIDENT ROOSEVELT DELIVERED A SPEECH IN WHICH
HE USED THE TERM MUCKRAKE IN ATTACKING THE PRACTICE OF MAKING SWEEPING
AND UNJUST CHARGES OF CORRUPTION AGAINST PUBLIC MEN AND CORPORATIONS
...  ." 

ROGET'S INTERNATIONAL THESAURUS SEC 934(3) LISTS THE FOLLOWING AS
SYNONYMS:  MUCKRAKE, THROW MUD AT, THROW OR FLING DIRT AT, DRAG THOUGH
THE MUD AND BESPATTER. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING IN
THE RESULT IN NO. 150, AND DISSENTING IN NO. 37. 

I CONCUR IN REVERSAL OF THE JUDGMENT IN NO. 150, ASSOCIATED PRESS V.
WALKER, BASED ON THE GROUNDS AND REASONS STATED IN PARTS I AND II OF
THE CHIEF JUSTICE'S OPINION.  I DO THIS, HOWEVER, AS IN TIME, INC. V.
HILL, 385 U.S. 374, 398, "IN ORDER FOR THE COURT TO BE ABLE AT THIS
TIME TO AGREE ON A DISPOSITION OF THIS IMPORTANT CASE BASED ON THE
PREVAILING CONSTITUTIONAL DOCTRINE EXPRESSED IN NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254.  THE CHIEF JUSTICE'S  ...  OPINION WOULD DECIDE
THE CASE IN ACCORDANCE WITH THIS DOCTRINE, TO WHICH THE MAJORITY
ADHERE.  IN AGREEING TO  ...  THAT OPINION, I DO NOT RECEDE FROM ANY OF
THE VIEWS I HAVE PREVIOUSLY EXPRESSED ABOUT THE MUCH WIDER PRESS AND
SPEECH FREEDOMS I THINK THE FIRST AND FOURTEENTH AMENDMENTS WERE
DESIGNED TO GRANT TO THE PEOPLE OF THE NATION.  SEE, E.G., NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S., AT 293 (CONCURRING OPINION);
ROSENBLATT V. BAER, 383 U.S. 75, 94 (CONCURRING AND DISSENTING
OPINION)." 

I WOULD REVERSE THE JUDGMENT IN NO. 37 FOR THE REASONS GIVEN IN MY
CONCURRING OPINION IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254,
293, AND MY CONCURRING AND DISSENTING OPINION IN ROSENBLATT V. BAER,
383 U.S. 75, 94, BUT WISH TO ADD A FEW WORDS. 

THESE CASES ILLUSTRATE, I THINK, THE ACCURACY OF MY PRIOR PREDICTIONS
THAT THE NEW YORK TIMES CONSTITUTIONAL RULE CONCERNING LIBEL IS WHOLLY
INADEQUATE TO SAVE THE PRESS FROM BEING DESTROYED BY LIBEL JUDGMENTS. 
HERE THE COURT REVERSES THE CASE OF ASSOCIATED PRESS V. WALKER, BUT
AFFIRMS THE JUDGMENT OF CURTIS PUBLISHING CO. V. BUTTS.  THE MAIN
REASON FOR THIS QUITE CONTRADICTORY ACTION, SO FAR AS I CAN DETERMINE,
IS THAT THE COURT LOOKS AT THE FACTS IN BOTH CASES AS THOUGH IT WERE A
JURY AND REACHES THE CONCLUSION THAT THE SATURDAY EVENING POST, IN
WRITING ABOUT BUTTS, WAS SO ABUSIVE THAT ITS ARTICLE IS MORE OF A LIBEL
AT THE CONSTITUTIONAL LEVEL THAN IS THE ONE BY THE ASSOCIATED PRESS. 
THAT SEEMS A STRANGE WAY TO ERECT A CONSTITUTIONAL STANDARD FOR LIBEL
CASES.  IF THIS PRECEDENT IS FOLLOWED, IT MEANS THAT WE MUST IN ALL
LIBEL CASES HEREAFTER WEIGH THE FACTS AND HOLD THAT ALL PAPERS AND
MAGAZINES GUILTY OF GROSS WRITING OR REPORTING ARE CONSTITUTIONALLY
LIABLE, WHILE THEY ARE NOT IF THE QUALITY OF THE REPORTING IS APPROVED
BY A MAJORITY OF US.  IN THE FINAL ANALYSIS, WHAT WE DO IN THESE
CIRCUMSTANCES IS TO REVIEW THE FACTUAL QUESTIONS IN CASES DECIDED BY
JURIES - A REVIEW WHICH IS A FLAT VIOLATION OF THE SEVENTH AMENDMENT. 

IT STRIKES ME THAT THE COURT IS GETTING ITSELF IN THE SAME QUAGMIRE
IN THE FIELD OF LIBEL IN WHICH IT IS NOW HELPLESSLY STRUGGLING IN THE
FIELD OF OBSCENITY.  NO ONE, INCLUDING THIS COURT, CAN KNOW WHAT IS AND
WHAT IS NOT CONSTITUTIONALLY OBSCENE OR LIBELOUS UNDER THIS COURT'S
RULINGS.  TODAY THE COURT WILL NOT GIVE THE FIRST AMENDMENT ITS NATURAL
AND OBVIOUS MEANING BY HOLDING THAT A LAW WHICH SERIOUSLY MENACES THE
VERY LIFE OF PRESS FREEDOM VIOLATES THE FIRST AMENDMENT.  IN FACT, THE
COURT IS SUGGESTING VARIOUS EXPERIMENTAL EXPEDIENTS IN LIBEL CASES, ALL
OF WHICH BOIL DOWN TO A DETERMINATION OF HOW OFFENSIVE TO THIS COURT A
PARTICULAR LIBEL JUDGMENT MAY BE, EITHER BECAUSE OF ITS IMMENSE SIZE OR
BECAUSE THE COURT DOES NOT LIKE THE WAY AN ALLEGED LIBELEE WAS
TREATED.  AGAIN I SUGGEST (SEE TIME, INC. V. HILL, 385 U.S. 374, 399)
THAT WE ARE RAPIDLY BUT SURELY GETTING OURSELVES IN THE DILEMMA WE
FOUND OURSELVES IN WHEN WE WERE COMPELLED TO OVERRULE THE ILL-STARRED
CASE OF BETTS V. BRADY, 316 U.S. 455,*  IN ORDER THAT THE STATE COURTS
OF THE COUNTRY MIGHT BE ABLE TO DETERMINE WITH SOME DEGREE OF CERTAINTY
WHEN AN INDIGENT PERSON WAS ENTITLED TO THE BENEFIT OF A LAWYER AND
AVOID THE SPAWNING OF HUNDREDS OF HABEAS CORPUS CASES THAT FINALLY
RAISED QUESTIONS THAT A LAWYER COULD AND WOULD HAVE RAISED AT THE
TRIAL. 

*GIDEON V. WAINWRIGHT, 372 U.S. 335. 

I THINK IT IS TIME FOR THIS COURT TO ABANDON NEW YORK TIMES CO. V.
SULLIVAN AND ADOPT THE RULE TO THE EFFECT THAT THE FIRST AMENDMENT WAS
INTENDED TO LEAVE THE PRESS FREE FROM THE HARASSMENT OF LIBEL
JUDGMENTS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE WHITE JOINS, CONCURRING IN
THE RESULT IN NO. 150, AND DISSENTING IN NO. 37. 

I JOIN PARTS I AND II OF THE OPINION OF THE CHIEF JUSTICE AND THE
DISPOSITION IN NO. 150, ASSOCIATED PRESS V. WALKER. 

IN NO. 37, CURTIS PUBLISHING CO. V. BUTTS, INSOFAR AS THE CHIEF
JUSTICE'S OPINION DEMONSTRATES THAT THE EVIDENCE UNMISTAKABLY WOULD
SUPPORT A JUDGMENT FOR BUTTS UNDER THE NEW YORK TIMES STANDARD, I
AGREE.  I WOULD, HOWEVER, REMAND FOR A NEW TRIAL SINCE THE CHARGE TO
THE JURY DID NOT COMPORT WITH THAT STANDARD.  (FN1)  THE CHARGE ON
COMPENSATORY DAMAGES DIRECTED THAT THE JURY FIND LIABILITY ON A FINDING
OF MERE FALSEHOOD.  AND THE TRIAL COURT STATED THAT PUNITIVE DAMAGES
MIGHT BE AWARDED ON A FINDING OF "ACTUAL MALICE" WHICH IT DEFINED TO
ENCOMPASS "THE NOTION OF ILL WILL, SPITE, HATRED AND AN INTENT TO
INJURE ONE," AND ALSO TO DENOTE "A WANTON OR RECKLESS INDIFFERENCE OR
CULPABLE NEGLIGENCE WITH REGARD TO THE RIGHTS OF OTHERS."  THE COURT
DETAILED SOME FACTORS THE JURY COULD CONSIDER IN APPLYING THIS
STANDARD.  IT SAID, FOR EXAMPLE, THAT "A PUBLICATION MAY BE SO
EXTRAVAGANT IN ITS DENUNCIATION AND SO VITUPERATIVE IN ITS CHARACTER AS
TO JUSTIFY AN INFERENCE OF MALICE," AND THAT "PROOF THAT THE PLAINTIFF
DID DEMAND A RETRACTION BUT THAT THE DEFENDANT FAILED TO RETRACT THE
ARTICLE MAY BE CONSIDERED BY YOU ON THE QUESTION OF PUNITIVE DAMAGES." 
BUT "DEBATE ON PUBLIC ISSUES WILL NOT BE UNINHIBITED IF THE SPEAKER
MUST RUN THE RISK THAT IT WILL BE PROVED IN COURT THAT HE SPOKE OUT OF
HATRED; EVEN IF HE DID SPEAK OUT OF HATRED, UTTERANCES HONESTLY
BELIEVED CONTRIBUTE TO THE FREE INTERCHANGE OF IDEAS AND THE
ASCERTAINMENT OF TRUTH."  GARRISON V. LOUISIANA, 379 U.S. 64, 73.  THE
"GOOD MOTIVES" OF THE PUBLISHER CAN BE NO MORE RELEVANT IN THE CONTEXT
OF "PUBLIC MEN" THAN IN THE CONTEXT OF CRITICISM OF "PUBLIC
OFFICIALS."  SEE GARRISON, SUPRA.  THE COURT ADDED THAT THE POST COULD
SHOW IN MITIGATION OF PUNITIVE DAMAGES THAT "IT IN GOOD FAITH RELIED
UPON CERTAIN MATTERS WHICH HAD COME TO ITS ATTENTION."  THIS MAKES
CRYSTAL CLEAR THAT THE STANDARD ANNOUNCED AUTHORIZED THE JURY TO AWARD
PUNITIVE DAMAGES EVEN THOUGH IT FOUND THAT THE POST HAD IN GOOD FAITH
RELIED ON MATTERS WHICH HAD COME TO ITS ATTENTION.  THE CHARGE
UNDOUBTEDLY FAILS TO COMPORT WITH NEW YORK TIMES.  (FN2) 

THAT THE EVIDENCE MIGHT SUPPORT A VERDICT UNDER NEW YORK TIMES CANNOT
JUSTIFY OUR TAKING FROM THE JURY THE FUNCTION OF DETERMINING, UNDER
PROPER INSTRUCTIONS, WHETHER THE NEW YORK TIMES STANDARD HAS BEEN MET. 
THE EXTENT OF THIS COURT'S ROLE IN REVIEWING THE FACTS, IN A CASE SUCH
AS THIS, IS TO ASCERTAIN WHETHER THERE IS EVIDENCE BY WHICH A JURY
COULD REASONABLY FIND LIABILITY UNDER THE CONSITUTIONALLY REQUIRED
INSTRUCTIONS.  SEE NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 284
292; TIME, INC. V. HILL, 385 U.S. 374, 391-394.  WHEN, AS IN THIS CASE,
SUCH EVIDENCE APPEARS, THE PROPER DISPOSITION IN THIS FEDERAL CASE IS
TO REVERSE AND REMAND WITH DIRECTION FOR A NEW TRIAL.  SEE TIME, INC.
V. HILL, SUPRA. 

FN1  FOR THE REASONS EXPRESSED IN THE OPINION OF MR. JUSTICE HARLAN I
AGREE THAT PETITIONER DID NOT WAIVE HIS CONTENTIONS UNDER NEW YORK
TIMES. 

FN2  THE STATEMENT BY THE TRIAL COURT THAT "MALICE ALSO DENOTES A
WANTON OR RECKLESS INDIFFERENCE OR CULPABLE NEGLIGENCE WITH REGARD TO
THE RIGHTS OF OTHERS" COULD REASONABLY HAVE BEEN REGARDED BY THE JURY
TO RELATE NOT TO THE TRUTH OR FALSITY OF THE MATTER, BUT TO THE POST'S
ATTITUDE TOWARD BUTTS' REPUTATION, AKIN TO THE SPITE AND ILL WILL IN
WHICH TERMS THE COURT HAD JUST DEFINED "MALICE."  SEE TIME, INC. V.
HILL, 385 U.S. 374, 396, N. 12. 
..END :




















NATIONAL LABOR RELATIONS BOARD V. ALLIS-CHALMERS MFG. CO. 388 U.S. 175 


NO. 216.  ARGUED MARCH 15, 1967.  - DECIDED JUNE 12, 1967.  - 358 F.2D
656, REVERSED. 


LAWFUL ECONOMIC STRIKES WERE CALLED AT TWO OF RESPONDENT ALLIS
CHALMERS' PLANTS IN ACCORDANCE WITH DULY AUTHORIZED UNION PROCEDURES BY
THE LOCALS OF THE UNION REPRESENTING THE EMPLOYEES.  SOME UNION MEMBERS
CROSSED PICKET LINES AND WORKED DURING THE STRIKES.  AFTER THE STRIKES
WERE OVER THE LOCALS BROUGHT PROCEEDINGS AGAINST THESE MEMBERS, IMPOSED
FINES OF $20 TO $100, AND SUED IN STATE COURTS TO COLLECT THE FINES. 
THE COLLECTIVE BARGAINING AGREEMENT CONTAINED A UNION SECURITY CLAUSE
WHICH REQUIRED EACH EMPLOYEE TO BECOME AND REMAIN "A MEMBER OF THE
UNION TO THE EXTENT OF PAYING HIS MONTHLY DUES."  ALLIS-CHALMERS FILED
UNFAIR LABOR PRACTICE CHARGES AGAINST THE LOCALS ALLEGING VIOLATION OF
SEC 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT.  THE NLRB HELD THAT
EVEN IF THE UNION ACTION WERE RESTRAINT OR COERCION PROSCRIBED BY THAT
NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN." 
THE COURT OF APPEALS REVERSED, HOLDING THAT THE UNION CONDUCT VIOLATED
SEC 8(B)(1)(A).  HELD: 

1.  THE HISTORY OF LEGISLATIVE ACTION SURROUNDING SEC 8(B)(1)(A)'S
PROHIBITION OF UNION ACTIVITY TO "RESTRAIN OR COERCE" EMPLOYEES IN THE
EXERCISE OF RIGHTS GUARANTEED BY SEC 7 JUSTIFIES THE CONCLUSION, IN
LIGHT OF THE IMPRECISION OF THE WORDS "RESTRAIN OR COERCE," AND THE
REPEATED REFRAIN THROUGHOUT THE DEBATES THAT CONGRESS DID NOT PROPOSE
LIMITATIONS ON THE INTERNAL AFFAIRS OF UNIONS, THAT CONGRESS DID NOT
INTEND SEC 8(B)(1)(A) TO PROHIBIT THE IMPOSITION OF REASONABLE FINES ON
FULL UNION MEMBERS WHO DECLINE TO HONOR AN AUTHORIZED STRIKE OR TO
PROHIBIT ATTEMPTS TO COLLECT SUCH FINES.  PP. 178-195. 

2.  SINCE ALLIS-CHALMERS OFFERED NO EVIDENCE THAT THE FINED EMPLOYEES
ENJOYED OTHER THAN FULL UNION MEMBERSHIP, THE CONTRARY WILL NOT BE
PRESUMED.  THE QUESTION OF THE APPLICABILITY OF THE STATUTE TO
EMPLOYEES WHOSE MEMBERSHIP WAS LIMITED TO THE OBLIGATION TO PAY MONTHLY
DUES IS NOT PRESENTED HERE.  PP. 196-197. 

NATIONAL LABOR RELATIONS BOARD V. ALLIS-CHALMERS MANUFACTURING CO. ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER A UNION WHICH THREATENED AND IMPOSED
FINES, AND BROUGHT SUIT FOR THEIR COLLECTION, AGAINST MEMBERS WHO
CROSSED THE UNION'S PICKET LINE AND WENT TO WORK DURING AN AUTHORIZED
STRIKE AGAINST THEIR EMPLOYER, COMMITTED THE UNFAIR LABOR PRACTICE
UNDER SEC 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT OF ENGAGING IN
CONDUCT "TO RESTRAIN OR COERCE" EMPLOYEES IN THE EXERCISE OF THEIR
RIGHT GUARANTEED BY SEC 7 TO "REFRAIN FROM" CONCERTED ACTIVITIES. 
(FN1) 

EMPLOYEES AT THE WEST ALLIS, AND LA CROSSE, WISCONSIN, PLANTS OF
RESPONDENT ALLIS-CHALMERS MANUFACTURING COMPANY WERE REPRESENTED BY
LOCALS OF THE UNITED AUTOMOBILE WORKERS.  LAWFUL ECONOMIC STRIKES WERE
CONDUCTED AT BOTH PLANTS IN SUPPORT OF NEW CONTRACT DEMANDS.  IN
COMPLIANCE WITH THE UAW CONSTITUTION, THE STRIKES WERE CALLED WITH THE
APPROVAL OF THE INTERNATIONAL UNION AFTER AT LEAST TWO-THIRDS OF THE
MEMBERS OF EACH LOCAL VOTED BY SECRET BALLOT TO STRIKE.  SOME MEMBERS
OF EACH LOCAL CROSSED THE PICKET LINES AND WORKED DURING THE STRIKES. 
AFTER THE STRIKES WERE OVER, THE LOCALS BROUGHT PROCEEDINGS AGAINST
THESE MEMBERS CHARGING THEM WITH VIOLATION OF THE INTERNATIONAL
CONSTITUTION AND BYLAWS.  THE CHARGES WERE HEARD BY LOCAL TRIAL
COMMITTEES IN PROCEEDINGS AT WHICH THE CHARGED MEMBERS WERE REPRESENTED
BY COUNSEL.  NO CLAIM OF UNFAIRNESS IN THE PROCEEDINGS IS MADE.   THE
TRIALS RESULTED IN EACH CHARGED MEMBER BEING FOUND GUILTY OF "CONDUCT
UNBECOMING A UNION MEMBER" AND BEING FINED IN A SUM FROM $20 TO $100. 
SOME OF THE FINED MEMBERS DID NOT PAY THE FINES AND ONE OF THE LOCALS
OBTAINED A JUDGMENT IN THE AMOUNT OF THE FINE AGAINST ONE OF ITS
MEMBERS, BENJAMIN NATZKE, IN A TEST SUIT BROUGHT IN THE MILWAUKEE
COUNTY COURT.  AN APPEAL FROM THE JUDGMENT IS PENDING IN THE WISCONSIN
SUPREME COURT. 

ALLIS-CHALMERS FILED UNFAIR LABOR PRACTICE CHARGES AGAINST THE LOCALS
ALLEGING VIOLATION OF SEC 8(B)(1)(A).  (FN2)  A COMPLAINT ISSUED AND
AFTER HEARING A TRIAL EXAMINER RECOMMENDED ITS DISMISSAL.   THE
NATIONAL LABOR RELATIONS BOARD SUSTAINED THE EXAMINER ON THE GROUND
THAT, IN THE CIRCUMSTANCES OF THIS CASE, THE ACTIONS OF THE LOCALS,
EVEN IF RESTRAINT OR COERCION PROHIBITED BY SEC 8(B)(1)(A), CONSTITUTED
CONDUCT EXCEPTED FROM THE SECTION'S PROHIBITIONS BY THE PROVISO THAT
SUCH PROHIBITIONS "SHALL NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION
TO PRESCRIBE ITS OWN RULES WITH RESPECT TO THE ACQUISITION OR RETENTION
OF MEMBERSHIP THEREIN."  149 N.L.R.B. 67.  UPON ALLIS-CHALMERS'
PETITION FOR REVIEW TO THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT, A
PANEL OF THAT COURT UPHELD THE BOARD'S DECISION.  FOLLOWING A REHEARING
EN BANC, HOWEVER, THE COURT, THREE JUDGES DISSENTING, WITHDREW THE
PANEL OPINION, HELD THAT THE LOCALS' CONDUCT VIOLATED SEC 8(B)(1)(A),
AND REMANDED TO THE BOARD FOR APPROPRIATE PROCEEDINGS.  358 F.2D 656. 
WE GRANTED CERTIORARI, 385 U.S. 810.  WE REVERSE. 

                                 I. 

THE PANEL AND THE MAJORITY EN BANC OF THE COURT OF APPEALS THOUGHT
THAT REVERSAL OF THE NLRB ORDER WOULD BE REQUIRED UNDER A LITERAL
READING OF SECS 7 AND 8(B)(1)(A); UNDER THAT READING UNION MEMBERS WHO
CROSS THEIR OWN PICKET LINES WOULD BE REGARDED AS EXERCISING THEIR
RIGHTS UNDER SEC 7 TO REFRAIN FROM ENGAGING IN A PARTICULAR CONCERTED
ACTIVITY, AND UNION DISCIPLINE IN THE FORM OF FINES FOR SUCH ACTIVITY
WOULD THEREFORE "RESTRAIN OR COERCE" IN VIOLATION OF SEC 8(B)(1)(A) IF
THE SECTION'S PROVISO IS READ TO SANCTION NO FORM OF DISCIPLINE OTHER
THAN EXPULSION FROM THE UNION.  THE PANEL REJECTED THAT LITERAL
READING.  THE MAJORITY EN BANC ADOPTED IT, STATING THAT THE PANEL
"MISTAKENLY TOOK THE POSITION THAT SUCH A LITERAL READING WAS
UNWARRANTED IN THE LIGHT OF THE HISTORY AND PURPOSES" OF THE SECTIONS,
358 F.2D, AT 659, AND HOLDING THAT "THE STATUTES IN QUESTION PRESENT NO
AMBIGUITIES WHATSOEVER, AND THEREFORE DO NOT REQUIRE RECOURSE TO
LEGISLATIVE 76;F. 2;F.2 HISTORY FOR CLARIFICATION."  ID., AT 660. 

IT IS HIGHLY UNREALISTIC TO REGARD SEC 8(B)(1), AND PARTICULARLY ITS
WORDS "RESTRAIN OR COERCE," AS PRECISELY AND UNAMBIGUOUSLY COVERING THE
UNION CONDUCT INVOLVED IN THIS CASE.  ON ITS FACE COURT ENFORCEMENT OF
FINES IMPOSED ON MEMBERS FOR VIOLATION OF MEMBERSHIP OBLIGATIONS IS NO
MORE CONDUCT TO "RESTRAIN OR COERCE" SATISFACTION OF SUCH OBLIGATIONS
THAN COURT ENFORCEMENT OF PENALTIES IMPOSED ON CITIZENS FOR VIOLATION
OF THEIR OBLIGATIONS AS CITIZENS TO PAY INCOME TAXES, OR COURT AWARDS
OF DAMAGES AGAINST A CONTRACTING PARTY FOR NONPERFORMANCE OF A
CONTRACTUAL OBLIGATION VOLUNTARILY UNDERTAKEN.  BUT EVEN IF THE
INHERENT IMPRECISION OF THE WORDS "RESTRAIN OR COERCE" MAY BE
OVERLOOKED, RECOURSE TO LEGISLATIVE HISTORY TO DETERMINE THE SENSE IN
WHICH CONGRESS USED THE WORDS IS NOT FORECLOSED.  WE HAVE ONLY THIS
TERM AGAIN ADMONISHED THAT LABOR LEGISLATION IS PECULIARLY THE PRODUCT
OF LEGISLATIVE COMPROMISE OF STRONGLY HELD VIEWS, LOCAL 1976,
CARPENTERS' UNION V. LABOR BOARD, 357 U.S. 93, 99-100, AND THAT
LEGISLATIVE HISTORY MAY NOT BE DISREGARDED MERELY BECAUSE IT IS
ARGUABLE THAT A PROVISION MAY UNAMBIGUOUSLY EMBRACE CONDUCT CALLED IN
QUESTION.  NATIONAL WOODWORK MFRS.  ASSN.  V. NLRB, 386 U.S. 612, 619
620.  INDEED, WE HAVE APPLIED THAT PRINCIPLE TO THE CONSTRUCTION OF SEC
8(B)(1)(A) ITSELF IN HOLDING THAT THE SECTION MUST BE CONSTRUED IN
LIGHT OF THE FACT THAT IT "IS ONLY ONE OF MANY INTERWOVEN SECTIONS IN A
COMPLEX ACT, MINDFUL OF THE MANIFEST PURPOSE OF THE CONGRESS TO FASHION
A COHERENT NATIONAL LABOR POLICY."  LABOR BOARD V. DRIVERS LOCAL UNION,
362 U.S. 274, 292. 

NATIONAL LABOR POLICY HAS BEEN BUILT ON THE PREMISE THAT BY POOLING
THEIR ECONOMIC STRENGTH AND ACTING THROUGH A LABOR ORGANIZATION FREELY
CHOSEN BY THE MAJORITY, THE EMPLOYEES OF AN APPROPRIATE UNIT HAVE THE
MOST EFFECTIVE MEANS OF BARGAINING FOR IMPROVEMENTS IN WAGES, HOURS,
AND WORKING CONDITIONS.  THE POLICY THEREFORE EXTINGUISHES THE
INDIVIDUAL EMPLOYEE'S POWER TO ORDER HIS OWN RELATIONS WITH HIS
EMPLOYER AND CREATES A POWER VESTED IN THE CHOSEN REPRESENTATIVE TO ACT
IN THE INTERESTS OF ALL EMPLOYEES.  "CONGRESS HAS SEEN FIT TO CLOTHE
THE BARGAINING REPRESENTATIVE WITH POWERS COMPARABLE TO THOSE POSSESSED
BY A LEGISLATIVE BODY BOTH TO CREATE AND RESTRICT THE RIGHTS OF THOSE
WHOM IT REPRESENTS  ...  ."  STEELE V. LOUISVILLE & N.R. CO., 323 U.S.
192, 202.  THUS ONLY THE UNION MAY CONTRACT THE EMPLOYEE'S TERMS AND
CONDITIONS OF EMPLOYMENT, (FN3) AND PROVISIONS FOR PROCESSING HIS
GRIEVANCES; THE UNION MAY EVEN BARGAIN AWAY HIS RIGHT TO STRIKE DURING
THE CONTRACT TERM, (FN4) AND HIS RIGHT TO REFUSE TO CROSS A LAWFUL
PICKET LINE.  (FN5)  THE EMPLOYEE MAY DISAGREE WITH MANY OF THE UNION
DECISIONS BUT IS BOUND BY THEM.  "THE MAJORITY-RULE CONCEPT IS TODAY
UNQUESTIONABLY AT THE CENTER OF OUR FEDERAL LABOR POLICY."  (FN6)  "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."  FORD MOTOR CO. V. HUFFMAN, 345 U.S. 330, 338. 

IT WAS BECAUSE THE NATIONAL LABOR POLICY VESTED UNIONS WITH POWER TO
ORDER THE RELATIONS OF EMPLOYEES WITH THEIR EMPLOYER THAT THIS COURT
FOUND IT NECESSARY TO FASHION THE DUTY OF FAIR REPRESENTATION.  THAT
DUTY "HAS STOOD AS A BULWARK TO PREVENT ARBITRARY UNION CONDUCT AGAINST
INDIVIDUALS STRIPPED OF TRADITIONAL FORMS OF REDRESS BY THE PROVISIONS
OF FEDERAL LABOR LAW."  VACA V. SIPES, 386 U.S. 171, 182.  FOR THE SAME
REASON CONGRESS IN THE 1959 LANDRUM-GRIFFIN AMENDMENTS, 73 STAT. 519,
ENACTED A CODE OF FAIRNESS TO ASSURE DEMOCRATIC CONDUCT OF UNION
AFFAIRS BY PROVISIONS GUARANTEEING FREE SPEECH AND ASSEMBLY, EQUAL
RIGHTS TO VOTE IN ELECTIONS, TO ATTEND MEETINGS, AND TO PARTICIPATE IN
THE DELIBERATIONS AND VOTING UPON THE BUSINESS CONDUCTED AT THE
MEETINGS. 

INTEGRAL TO THIS FEDERAL LABOR POLICY HAS BEEN THE POWER IN THE
CHOSEN UNION TO PROTECT AGAINST EROSION ITS STATUS UNDER THAT POLICY
THROUGH REASONABLE DISCIPLINE OF MEMBERS WHO VIOLATE RULES AND
REGULATIONS GOVERNING MEMBERSHIP.  (FN7)  THAT POWER IS PARTICULARLY
VITAL WHEN THE MEMBERS ENGAGE IN STRIKES.  THE ECONOMIC STRIKE AGAINST
THE EMPLOYER IS THE ULTIMATE WEAPON IN LABOR'S ARSENAL FOR ACHIEVING
AGREEMENT UPON ITS TERMS, AND "THE POWER TO FINE OR EXPEL
STRIKEBREAKERS IS ESSENTIAL IF THE UNION IS TO BE AN EFFECTIVE
BARGAINING AGENT  ...  ."  (FN8)  PROVISIONS IN UNION CONSTITUTIONS AND
BYLAWS FOR FINES AND EXPULSION OF RECALCITRANTS, INCLUDING
STRIKEBREAKERS, ARE THEREFORE COMMONPLACE AND WERE COMMONPLACE AT THE
TIME OF THE TAFT-HARTLEY AMENDMENTS.  (FN9) 

IN ADDITION, THE JUDICIAL VIEW CURRENT AT THE TIME SEC 8(B)(1)(A) WAS
PASSED WAS THAT PROVISIONS DEFINING PUNISHABLE CONDUCT AND THE
PROCEDURES FOR TRIAL AND APPEAL CONSTITUTED PART OF THE CONTRACT
BETWEEN MEMBER AND UNION AND THAT "THE COURTS' ROLE IS BUT TO ENFORCE
THE CONTRACT."  (FN10)  IN MACHINISTS V. GONZALES, 356 U.S. 617,518, WE
RECOGNIZED THAT "THIS CONTRACTUAL CONCEPTION OF THE RELATION BETWEEN A
MEMBER AND HIS UNION WIDELY PREVAILS IN THIS COUNTRY  ...  ."  ALTHOUGH
STATE COURTS WERE RELUCTANT TO INTERVENE IN INTERNAL UNION AFFAIRS, A
BODY OF LAW ESTABLISHING STANDARDS OF FAIRNESS IN THE ENFORCEMENT OF
UNION DISCIPLINE GREW UP AROUND THIS CONTRACT DOCTRINE.  SEE PARKS V.
ELECTRICAL WORKERS, 314 F.2D 886, 902-903.  (FN11) 

TO SAY THAT CONGRESS MEANT IN 1947 BY THE SEC 7 AMENDMENTS AND SEC
8(B)(1)(A) TO STRIP UNIONS OF THE POWER TO FINE MEMBERS FOR
STRIKEBREAKING, HOWEVER LAWFUL THE STRIKE VOTE, AND HOWEVER FAIR THE
DISCIPLINARY PROCEDURES AND PENALTY, IS TO SAY THAT CONGRESS PRECEDED
THE LANDRUM-GRIFFIN AMENDMENTS WITH AN EVEN MORE PERVASIVE REGULATION
OF THE INTERNAL AFFAIRS OF UNIONS.  IT IS ALSO TO ATTRIBUTE TO CONGRESS
AN INTENT AT WAR WITH THE UNDERSTANDING OF THE UNION-MEMBERSHIP
RELATION WHICH HAS BEEN AT THE HEART OF ITS EFFORT "TO FASHION A
COHERENT LABOR POLICY" AND WHICH HAS BEEN A PREDICATE UNDERLYING ACTION
BY THIS COURT AND THE STATE COURTS.  MORE IMPORTANTLY, IT IS TO SAY
THAT CONGRESS LIMITED UNIONS IN THE POWERS NECESSARY TO THE DISCHARGE
OF THEIR ROLE AS EXCLUSIVE STATUTORY BARGAINING AGENTS BY IMPAIRING THE
USEFULNESS OF LABOR'S CHERISHED STRIKE WEAPON.  IT IS NO ANSWER THAT
THE PROVISO TO SEC 8(B)(1)(A) PRESERVES TO THE UNION THE POWER TO EXPEL
THE OFFENDING MEMBER.  WHERE THE UNION IS STRONG AND MEMBERSHIP
THEREFORE VALUABLE, TO REQUIRE EXPULSION OF THE MEMBER VISITS A FAR
MORE SEVERE PENALTY UPON THE MEMBER THAN A REASONABLE FINE.  WHERE THE
UNION IS WEAK, AND MEMBERSHIP THEREFORE OF LITTLE VALUE, THE UNION
FACED WITH FURTHER DEPLETION OF ITS RANKS MAY HAVE NO REAL CHOICE
EXCEPT TO CONDONE THE MEMBER'S DISOBEDIENCE.  (FN12)  YET IT IS JUST
SUCH WEAK UNIONS FOR WHICH THE POWER TO EXECUTE UNION DECISIONS TAKEN
FOR THE BENEFIT OF ALL EMPLOYEES IS MOST CRITICAL TO EFFECTIVE
DISCHARGE OF ITS STATUTORY FUNCTION. 

CONGRESSIONAL MEANING IS OF COURSE ORDINARILY TO BE DISCERNED IN THE
WORDS CONGRESS USES.  BUT WHEN THE LITERAL APPLICATION OF THE IMPRECISE
WORDS "RESTRAIN OR COERCE" CONGRESS EMPLOYED IN SEC 8(B)(1)(A) PRODUCES
THE EXTRAORDINARY RESULTS WE HAVE MENTIONED WE SHOULD DETERMINE WHETHER
THIS MEANING IS CONFIRMED IN THE LEGISLATIVE HISTORY OF THE SECTION. 

                                 II. 

THE EXPLICIT WORDING OF SEC 8(B)(2), WHICH IS CONCERNED WITH UNION
POWERS TO AFFECT A MEMBER'S EMPLOYMENT, IS IN SHARP CONTRAST WITH THE
IMPRECISE WORDS OF SEC 8(B)(1)(A).  SECTION 8(B)(2) LIMITS UNION POWER
TO COMPEL AN EMPLOYER TO DISCHARGE A TERMINATED MEMBER OTHER THAN FOR
"FAILURE OF THE EMPLOYEE TO TENDER THE PERIODIC DUES AND THE INITIATION
FEES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP."  IT IS SIGNIFICANT THAT CONGRESS EXPRESSLY DISCLAIMED IN
THIS CONNECTION ANY INTENTION TO INTERFERE WITH UNION SELF-GOVERNMENT
OR TO REGULATE A UNION'S INTERNAL AFFAIRS.  THE SENATE REPORT STATED: 

"THE COMMITTEE DID NOT DESIRE TO LIMIT THE LABOR ORGANIZATION WITH
RESPECT TO EITHER ITS SELECTION OF MEMBERSHIP OR EXPULSION THEREFROM. 
BUT THE COMMITTEE DID WISH TO PROTECT THE EMPLOYEE IN HIS JOB IF
UNREASONABLY EXPELLED OR DENIED MEMBERSHIP.  THE TESTS PROVIDED BY THE
AMENDMENT ARE BASED UPON FACTS READILY ASCERTAINABLE AND DO NOT REQUIRE
THE EMPLOYER TO INQUIRE INTO THE INTERNAL AFFAIRS OF THE UNION."  S.
REP. NO. 105, 80TH CONG., 1ST SESS., 20, I LEGISLATIVE HISTORY OF THE
LABOR MANAGEMENT RELATIONS ACT, 1947 (HEREAFTER LEG.  HIST.)  426. 

SENATOR TAFT, IN ANSWER TO PROTESTATIONS BY SENATOR PEPPER THAT SEC
8(B)(2) WOULD INTERVENE IN THE UNION'S INTERNAL AFFAIRS AND "DENY IT
THE RIGHT TO PROTECT ITSELF AGAINST A MAN IN THE UNION WHO BETRAYS THE
OBJECTIVES OF THE UNION  ...  ," STATED:    "THE PENDING MEASURE DOES
NOT PROPOSE ANY LIMITATION WITH RESPECT TO THE INTERNAL AFFAIRS OF
UNIONS.  THEY STILL WILL BE ABLE TO FIRE ANY MEMBERS THEY WISH TO FIRE,
AND THEY STILL WILL BE ABLE TO TRY ANY OF THEIR MEMBERS.  ALL THAT THEY
WILL NOT BE ABLE TO DO, AFTER THE ENACTMENT OF THIS BILL, IS THIS:  IF
THEY FIRE A MEMBER FOR SOME REASON OTHER THAN NONPAYMENT OF DUES THEY
CANNOT MAKE HIS EMPLOYER DISCHARGE HIM FROM HIS JOB AND THROW HIM OUT
OF WORK.  THAT IS THE ONLY RESULT OF THE PROVISION UNDER DISCUSSION." 
(FN13) 

THIS.  CONGRESSIONAL EMPHASIS THAT SEC 8(B)(2) INSULATED AN EMPLOYEE'S
MEMBERSHIP FROM HIS JOB, BUT LEFT INTERNAL UNION AFFAIRS TO UNION SELF
GOVERNMENT, IS THEREFORE SIGNIFICANT EVIDENCE AGAINST READING SEC
8(B)(1)(A) AS CONTEMPLATING REGULATION OF INTERNAL DISCIPLINE.  THIS IS
BORNE OUT BY THE FACT THAT PROVISION WAS ALSO MADE IN THE TAFT-HARTLEY
ACT FOR A SPECIAL COMMITTEE TO STUDY, AMONG OTHER THINGS, "THE INTERNAL
ORGANIZATION AND ADMINISTRATION OF LABOR UNIONS  ...  ."  SEC 402(3),
61 STAT. 160. 

WHAT LEGISLATIVE MATERIALS THERE ARE DEALING WITH SEC 8(B)(1)(A)
CONTAIN NOT A SINGLE WORD REFERRING TO THE APPLICATION OF ITS
PROHIBITIONS TO TRADITIONAL INTERNAL UNION DISCIPLINE IN GENERAL, OR
DISCIPLINARY FINES IN PARTICULAR.  ON THE CONTRARY THERE ARE A NUMBER
OF ASSURANCES BY ITS SPONSORS THAT THE SECTION WAS NOT MEANT TO
REGULATE THE INTERNAL AFFAIRS OF UNIONS. 

THE PROVISION WAS NOT CONTAINED IN THE SENATE OR HOUSE BILLS REPORTED
OUT OF COMMITTEE, BUT WAS INTRODUCED AS AN AMENDMENT ON THE SENATE
FLOOR BY SENATOR BALL.  THE AMENDMENT WAS ADOPTED IN THE CONFERENCE
COMMITTEE, WITHOUT SIGNIFICANT ENLIGHTENMENT FROM THE REPORT OF THAT
COMMITTEE.  THE FIRST SUGGESTION THAT RESTRAINT OR COERCION OF
EMPLOYEES IN THE EXERCISE OF SEC 7 RIGHTS SHOULD BE AN UNFAIR LABOR
PRACTICE APPEARS IN THE STATEMENT OF SUPPLEMENTAL VIEWS TO THE SENATE
REPORT, IN WHICH A MINORITY OF THE SENATE COMMITTEE, INCLUDING SENATORS
BALL, TAFT, AND SMITH, CONCURRED.  THE MISCHIEF AGAINST WHICH THE
STATEMENT INVEIGHED WAS RESTRAINT AND COERCION BY UNIONS IN
ORGANIZATIONAL CAMPAIGNS.  "THE COMMITTEE HEARD MANY INSTANCES OF UNION
COERCION OF EMPLOYEES SUCH AS THAT BROUGHT ABOUT BY THREATS OF REPRISAL
AGAINST EMPLOYEES AND THEIR FAMILIES IN THE COURSE OF ORGANIZING
CAMPAIGNS; ALSO DIRECT INTERFERENCE BY MASS PICKETING AND OTHER
VIOLENCE."  S. REP. NO. 105, SUPRA, AT 50, I LEG.  HIST.  456.  SENATOR
BALL PROPOSED SEC 8(B)(1)(A) AS AN AMENDMENT TO THE SENATE BILL, AND
STATED, "THE PURPOSE OF THE AMENDMENT IS SIMPLY TO PROVIDE THAT WHERE
UNIONS, IN THEIR ORGANIZATIONAL CAMPAIGNS, INDULGE IN PRACTICES WHICH,
IF AN EMPLOYER INDULGED IN THEM, WOULD BE UNFAIR LABOR PRACTICES, SUCH
AS MAKING THREATS OR FALSE PROMISES OR FALSE STATEMENTS, THE UNIONS
ALSO SHALL BE GUILTY OF UNFAIR LABOR PRACTICES."  93 CONG.  REC. 4016,
II LEG.  HIST.  1018.  SENATOR BALL GAVE NUMEROUS EXAMPLES OF THE KIND
OF UNION CONDUCT THE AMENDMENT WAS TO COVER.  EACH ONE RELATED TO UNION
CONDUCT DURING ORGANIZATIONAL CAMPAIGNS.  (FN14)  SENATOR BALL
REITERATED THIS PURPOSE SEVERAL TIMES THEREAFTER, (FN15) INCLUDING
INCLUDING REMARKS ADDED AFTER PASSAGE OF THE AMENDMENT.  (FN16)  THE
CONSISTENT THRUST OF HIS ARGUMENTS WAS THE NECESSITY OF CONTROLLING
UNION CONDUCT IN ORGANIZATIONAL CAMPAIGNS.  INDEED, WHEN SENATOR
HOLLAND INTRODUCED THE PROVISO ELIMINATING FROM THE REACH OF SEC
8(B)(1)(A) "THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN
RULES WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP  ...
," SENATOR BALL REPLIED: 

"I MERELY WISH TO STATE TO THE SENATE THAT THE AMENDMENT OFFERED BY
THE SENATOR FROM FLORIDA IS PERFECTLY AGREEABLE TO ME.  IT WAS NEVER
THE INTENTION OF THE SPONSORS OF THE PENDING AMENDMENT TO INTERFERE
WITH THE INTERNAL AFFAIRS OR ORGANIZATION OF UNIONS."  (FN17) 

AFTER ACCEPTANCE OF THE PROVISO, AND ON THE SAME DAY AS THE VOTE ON
THE AMENDMENT ITSELF, SENATOR BALL SAID OF THE PROVISO:  "THAT
MODIFICATION IS DESIGNED TO MAKE IT CLEAR THAT WE ARE NOT TRYING TO
INTERFERE WITH THE INTERNAL AFFAIRS OF A UNION WHICH IS ALREADY
ORGANIZED.  ALL WE ARE TRYING TO COVER IS THE COERCIVE AND RESTRAINING
ACTS OF THE UNION IN ITS EFFORT TO ORGANIZE UNORGANIZED EMPLOYEES." 
(FN18) 

ANOTHER CO-SPONSOR OF THE AMENDMENT, SENATOR SMITH, ECHOED THIS
PURPOSE:  "THE PENDING MEASURE IS DESIGNED TO PROTECT EMPLOYEES IN
THEIR FREEDOM TO DECIDE WHETHER OR NOT THEY DESIRE TO JOIN LABOR
ORGANIZATIONS, TO PREVENT THEM FROM BEING RESTRAINED OR COERCED." 
(FN19) 

SENATOR TAFT ALSO INITIALLY CONFINED HIS COMMENTS ON THE AMENDMENT TO
EXAMPLES OF ORGANIZATIONAL TACTICS.  (FN20)  HOWEVER, IN DEBATE WITH
SENATOR PEPPER, HE SUGGESTED A BROADER BUT STILL LIMITED APPLICATION: 

"IF THERE IS ANYTHING CLEAR IN THE DEVELOPMENT OF LABOR UNION HISTORY
IN THE PAST 10 YEARS IT IS THAT MORE AND MORE LABOR UNION EMPLOYEES
HAVE COME TO BE SUBJECT TO THE ORDERS OF LABOR UNION LEADERS.  THE BILL
PROVIDES FOR THE RIGHT TO PROTEST AGAINST ARBITRARY POWERS WHICH HAVE
BEEN EXERCISED BY SOME OF THE LABOR UNION LEADERS."  (FN21) 

IN REPLY TO SENATOR PEPPER'S PROTEST THAT UNION MEMBERS CAN PROTECT
THEMSELVES AGAINST SUCH "TYRANNY," SENATOR TAFT STATED, "I THINK IT IS
FAIR TO SAY THAT IN THE CASE OF MANY OF THE UNIONS, THE EMPLOYEE HAS A
GOOD DEAL MORE OF AN OPPORTUNITY TO SELECT HIS EMPLOYER THAN HE HAS TO
SELECT HIS LABOR-UNION LEADER."  (FN22)  SENATOR TAFT FURTHER OBSERVED
THAT UNION LEADERS SOMETIMES PENALIZE THOSE WHO VOTE AGAINST THEM. 
SENATOR PEPPER THEN ATTEMPTED TO DRAW AN ANALOGY BETWEEN UNION MEMBERS
AND SHAREHOLDERS IN A CORPORATION, TO WHICH SENATOR TAFT REPLIED, "THE
CONGRESS HAS GONE MUCH FURTHER IN PROTECTING THE RIGHTS OF MINORITY
STOCKHOLDERS IN CORPORATIONS THAN IT HAS IN PROTECTING THE RIGHTS OF
MEMBERS OF UNIONS.  EVEN IN THIS BILL WE DO NOT TELL THE UNIONS HOW
THEY SHALL VOTE OR HOW THEY SHALL CONDUCT THEIR AFFAIRS  ...  ." 
(FN23)  SENATOR PEPPER ATTEMPTED TWICE TO CLARIFY THE EFFECT OF THE
AMENDMENT ON INTERNAL AFFAIRS, BUT SENATOR TAFT ANSWERED ONLY THAT THE
AMENDMENT APPLIED TO NONUNION MEN AS WELL.  (FN24) 

IT WAS ONE WEEK AFTER THIS DEBATE BETWEEN SENATOR TAFT AND SENATOR
PEPPER THAT SEC 8(B)(1)(A) WAS ADOPTED BY THE SENATE AS AN AMENDMENT TO
THE BILL.  THERE WAS NO FURTHER REFERENCE IN THE DEBATES TO THE
APPLICABILITY OF THE SECTION TO INTERNAL UNION AFFAIRS, BY SENATOR TAFT
OR ANYONE ELSE, DESPITE THE REPEATED STATEMENTS BY SENATOR BALL THAT IT
BORE NO RELATIONSHIP TO THE CONDUCT OF SUCH AFFAIRS.   AT ONE POINT,
SENATOR SALTONSTALL ASKED SENATOR TAFT TO PROVIDE EXAMPLES OF THE KIND
OF UNION CONDUCT COVERED BY THE SECTION.  SENATOR TAFT RESPONDED WITH
EXAMPLES OF THREATS OF BODILY HARM, ECONOMIC COERCION, AND MASS
PICKETING IN ORGANIZATIONAL CAMPAIGNS AND COERCION WHICH PREVENTED
EMPLOYEES NOT INVOLVED IN A LABOR DISPUTE FROM GOING TO WORK.  (FN25)
BUT ANY INFERENCE THAT SENATOR TAFT ENVISIONED THAT SEC 8(B)(1)(A)
INTRUDED INTO AND REGULATED INTERNAL UNION AFFAIRS IS NEGATED BY HIS
CATEGORICAL STATEMENTS TO THE CONTRARY IN THE CONTEMPORANEOUS DEBATES
ON SEC 8(B)(2). 

IT IS TRUE THAT THERE ARE REFERENCES IN THE SENATE DEBATE ON SEC
8(B)(1)(A) TO AN INTENT TO IMPOSE THE SAME PROHIBITIONS ON UNIONS THAT
APPLIED TO EMPLOYERS AS REGARDS RESTRAINT AND COERCION OF EMPLOYEES IN
THEIR EXERCISE OF SEC 7 RIGHTS.  (FN26)  HOWEVER APPOSITE THIS PARALLEL
MIGHT BE WHEN APPLIED TO ORGANIZATIONAL TACTICS, IT CLEARLY IS
INAPPLICABLE TO THE RELATIONSHIP OF A UNION MEMBER TO HIS OWN UNION. 
UNION MEMBERSHIP ALLOWS THE MEMBER A PART IN CHOOSING THE VERY COURSE
OF ACTION TO WHICH HE REFUSES TO ADHERE, BUT HE HAS OF COURSE NO ROLE
IN EMPLOYER CONDUCT, AND NONUNION EMPLOYEES HAVE NO VOICE IN THE
AFFAIRS OF THE UNION.  (FN27) 

COGENT SUPPORT FOR AN INTERPRETATION OF THE BODY OF SEC 8(B)(1) AS
NOT REACHING THE IMPOSITION OF FINES AND ATTEMPTS AT COURT ENFORCEMENT
IS THE PROVISO TO SEC 8(B)(1).  IT STATES THAT NOTHING IN THE SECTION
SHALL "IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN
RULES WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP
THEREIN  ...  ."  SENATOR HOLLAND OFFERED THE PROVISO DURING DEBATE AND
SENATOR BALL IMMEDIATELY ACCEPTED IT, STATING THAT IT WAS NOT THE
INTENT OF THE SPONSORS IN ANY WAY TO REGULATE THE INTERNAL AFFAIRS OF
UNIONS.  (FN28)  AT THE VERY LEAST IT CAN BE SAID THAT THE PROVISO
PRESERVES THE RIGHTS OF UNIONS TO IMPOSE FINES, AS A LESSER PENALTY
THAN EXPULSION, AND TO IMPOSE FINES WHICH CARRY THE EXPLICIT OR
IMPLICIT THREAT OF EXPULSION FOR NONPAYMENT.  THEREFORE, UNDER THE
PROVISO THE RULE IN THE UAW CONSTITUTION GOVERNING FINES IS VALID AND
THE FINES THEMSELVES AND EXPULSION FOR NONPAYMENT WOULD NOT BE AN
UNFAIR LABOR PRACTICE.  ASSUMING THAT THE PROVISO CANNOT ALSO BE READ
TO AUTHORIZE COURT ENFORCEMENT OF FINES, A QUESTION WE NEED NOT REACH,
(FN29) THE FACT REMAINS THAT TO INTERPRET THE BODY OF SEC 8(B)(1) TO
APPLY TO THE IMPOSITION AND COLLECTION OF FINES WOULD BE TO IMPUTE TO
CONGRESS A CONCERN WITH THE PERMISSIBLE MEANS OF ENFORCEMENT OF UNION
FINES AND TO ATTRIBUTE TO CONGRESS A NARROW AND DISCRETE INTEREST IN
BANNING COURT ENFORCEMENT OF SUCH FINES.  YET THERE IS NOT ONE WORD IN
THE LEGISLATIVE HISTORY EVIDENCING ANY SUCH CONGRESSIONAL CONCERN. 
AND, AS WE HAVE POINTED OUT, A DISTINCTION BETWEEN COURT ENFORCEMENT
AND EXPULSION WOULD HAVE BEEN ANOMALOUS FOR SEVERAL REASONS.  FIRST,
CONGRESS WAS OPERATING WITHIN THE CONTEXT OF THE "CONTRACT THEORY" OF
THE UNION-MEMBER RELATIONSHIP WHICH WIDELY PREVAILED AT THAT TIME.  THE
EFFICACY OF A CONTRACT IS PRECISELY ITS LEGAL ENFORCEABILITY.  A
LAWSUIT IS AND HAS BEEN THE ORDINARY WAY BY WHICH PERFORMANCE OF
PRIVATE MONEY OBLIGATIONS IS COMPELLED.  SECOND, AS WE HAVE NOTED, SUCH
A DISTINCTION WOULD VISIT UPON THE MEMBER OF A STRONG UNION A
POTENTIALLY MORE SEVERE PUNISHMENT THAN COURT ENFORCEMENT OF FINES,
WHILE IMPAIRING THE BARGAINING FACILITY OF THE WEAK UNION BY REQUIRING
IT EITHER TO CONDONE MISCONDUCT OR DEPLETE ITS RANKS. 

THERE MAY BE CONCERN THAT COURT ENFORCEMENT MAY PERMIT THE COLLECTION
OF UNREASONABLY LARGE FINES.   (FN30)  HOWEVER, EVEN WERE THERE
EVIDENCE THAT CONGRESS SHARED THIS CONCERN, (FN31) THIS WOULD NOT
JUSTIFY READING THE ACT ALSO TO BAR COURT ENFORCEMENT OF REASONABLE
FINES.  (FN32) 

THE 1959 LANDRUM-GRIFFIN AMENDMENTS, THOUGHT TO BE THE FIRST
COMPREHENSIVE REGULATION BY CONGRESS OF THE CONDUCT OF INTERNAL UNION
AFFAIRS, (FN33) ALSO NEGATE THE REACH GIVEN SEC 8(B)(1)(A) BY THE
MAJORITY EN BANC BELOW.  "TO BE SURE, WHAT CONGRESS DID IN 1959 DOES
NOT ESTABLISH WHAT IT MEANT IN 1947.  HOWEVER, AS ANOTHER MAJOR STEP IN
AN EVOLVING PATTERN OF REGULATION OF UNION CONDUCT, THE 1959 ACT IS A
RELEVANT CONSIDERATION.  COURTS MAY PROPERLY TAKE INTO ACCOUNT THE
LATER ACT WHEN ASKED TO EXTEND THE REACH OF THE EARLIER ACT'S VAGUE
LANGUAGE TO THE LIMITS WHICH, READ LITERALLY, THE WORDS MIGHT PERMIT." 
LABOR BOARD V. DRIVERS LOCAL UNION, 362 U.S. 274, 291-292.  IN 1959
CONGRESS DID SEEK TO PROTECT UNION MEMBERS IN THEIR RELATIONSHIP TO THE
UNION BY ADOPTING MEASURES TO INSURE THE PROVISION OF DEMOCRATIC
PROCESSES IN THE CONDUCT OF UNION AFFAIRS AND PROCEDURAL DUE PROCESS TO
MEMBERS SUBJECTED TO DISCIPLINE.  EVEN THEN, SOME SENATORS EMPHASIZED
THAT "IN ESTABLISHING AND ENFORCING STATUTORY STANDARDS GREAT CARE
SHOULD BE TAKEN NOT TO UNDERMINE UNION SELF-GOVERNMENT OR WEAKEN UNIONS
IN THEIR ROLE AS COLLECTIVE-BARGAINING AGENTS."  S. REP.  NO. 187, 86TH
CONG., 1ST SESS., 7.  THE EIGHTY-SIXTH CONGRESS WAS THUS PLAINLY OF THE
VIEW THAT UNION SELF-GOVERNMENT WAS NOT REGULATED IN 1947.  INDEED,
THAT CONGRESS EXPRESSLY RECOGNIZED THAT A UNION MEMBER MAY BE "FINED,
SUSPENDED, EXPELLED, OR OTHERWISE DISCIPLINED," AND ENACTED ONLY
PROCEDURAL REQUIREMENTS TO BE OBSERVED.  73 STAT. 523, 29 U.S.C. SEC
411(A)(5).  MOREOVER, CONGRESS ADDED A PROVISO TO THE GUARANTEE OF
FREEDOM OF SPEECH AND ASSEMBLY DISCLAIMING ANY INTENT "TO IMPAIR THE
RIGHT OF A LABOR ORGANIZATION TO ADOPT AND ENFORCE REASONABLE RULES AS
TO THE RESPONSIBILITY OF EVERY MEMBER TOWARD THE ORGANIZATION AS AN
INSTITUTION  ...  ."  29 U.S.C. SEC 411(A)(2). 

THE 1959 PROVISIONS ARE SIGNIFICANT FOR STILL ANOTHER REASON.  WE
HAVE SEEN THAT THE ONLY INDICATION IN THE DEBATES OVER SEC 8(B)(1)(A)
OF A REACH BEYOND ORGANIZATIONAL TACTICS WHICH RESTRAIN OR COERCE
NONMEMBERS WAS SENATOR TAFT'S CONCERN WITH ARBITRARY AND UNDEMOCRATIC
UNION LEADERSHIP.  THE 1959 AMENDMENTS ARE ADDRESSED TO THAT CONCERN. 
THE KIND OF REGULATION OF INTERNAL UNION AFFAIRS WHICH SENATOR TAFT
SAID PROTECTED STOCKHOLDERS OF A CORPORATION, AND MADE NECESSARY A
"RIGHT OF PROTEST AGAINST ARBITRARY POWERS WHICH HAVE BEEN EXERCISED BY
SOME OF THE LABOR UNION LEADERS," (FN34) IS EMBODIED IN THE 1959 ACT. 
THE REQUIREMENTS OF ADHERENCE TO DEMOCRATIC PRINCIPLES, FAIR PROCEDURES
AND FREEDOM OF SPEECH APPLY TO THE ELECTION OF UNION OFFICIALS AND
EXTEND INTO ALL ASPECTS OF UNION AFFAIRS.  (FN35)  IN THE PRESENT CASE
THE PROCEDURES FOLLOWED FOR CALLING THE STRIKES AND DISCIPLINING THE
RECALCITRANT MEMBERS FULLY COMPORTED WITH THESE REQUIREMENTS, AND WERE
IN EVERY WAY FAIR AND DEMOCRATIC.  WHETHER SEC 8(B)(1)(A) PROSCRIBES
ARBITRARY IMPOSITION OF FINES, OR PUNISHMENT FOR DISOBEDIENCE OF A FIAT
OF A UNION LEADER, ARE MATTERS NOT PRESENTED BY THIS CASE, AND UPON
WHICH WE EXPRESS NO VIEW.    THUS THIS HISTORY OF CONGRESSIONAL ACTION
DOES NOT SUPPORT A CONCLUSION THAT THE TAFT-HARTLEY PROHIBITIONS
AGAINST RESTRAINT OR COERCION OF AN EMPLOYEE TO REFRAIN FROM CONCERTED
ACTIVITIES INCLUDED A PROHIBITION AGAINST THE IMPOSITION OF FINES ON
MEMBERS WHO DECLINE TO HONOR AN AUTHORIZED STRIKE AND ATTEMPTS TO
COLLECT SUCH FINES.  RATHER, THE CONTRARY INFERENCE IS MORE JUSTIFIED
IN LIGHT OF THE REPEATED REFRAIN THROUGHOUT THE DEBATES ON SEC
8(B)(1)(A) AND OTHER SECTIONS THAT CONGRESS DID NOT PROPOSE ANY
LIMITATIONS WITH RESPECT TO THE INTERNAL AFFAIRS OF UNIONS, ASIDE FROM
BARRING ENFORCEMENT OF A UNION'S INTERNAL REGULATIONS TO AFFECT A
MEMBER'S EMPLOYMENT STATUS. 

                    III. 

THE COLLECTIVE BARGAINING AGREEMENTS WITH THE LOCALS INCORPORATE
UNION SECURITY CLAUSES.  FULL UNION MEMBERSHIP IS NOT COMPELLED BY THE
CLAUSES:  AN EMPLOYEE IS REQUIRED ONLY TO BECOME AND REMAIN "A MEMBER
OF THE UNION ...  TO THE EXTENT OF PAYING HIS MONTHLY DUES  ...  ." 
THE MAJORITY EN BANC BELOW NEVERTHELESS REGARDED FULL MEMBERSHIP TO BE
"THE RESULT NOT OF INDIVIDUAL VOLUNTARY CHOICE BUT OF THE INSERTION OF
THIS UNION SECURITY PROVISION IN THE CONTRACT UNDER WHICH A SUBSTANTIAL
MINORITY OF THE EMPLOYEES MAY HAVE BEEN FORCED INTO MEMBERSHIP."  358
F.2D, AT 660.  BUT THE RELEVANT INQUIRY HERE IS NOT WHAT MOTIVATED A
MEMBER'S FULL MEMBERSHIP BUT WHETHER THE TAFT-HARTLEY AMENDMENTS
PROHIBITED DISCIPLINARY MEASURES AGAINST A FULL MEMBER WHO CROSSED HIS
UNION'S PICKET LINE.  IT IS CLEAR THAT THE FINED EMPLOYEES INVOLVED
HEREIN ENJOYED FULL UNION MEMBERSHIP.  EACH EXECUTED THE PLEDGE OF
ALLEGIANCE TO THE UAW CONSTITUTION AND TOOK THE OATH OF FULL
MEMBERSHIP.  MOREOVER, THE RECORD OF THE MILWAUKEE COUNTY COURT CASE
AGAINST BENJAMIN NATZKE DISCLOSES THAT TWO DISCIPLINED EMPLOYEES
TESTIFIED THAT THEY HAD FULLY PARTICIPATED IN THE PROCEEDINGS LEADING
TO THE STRIKE.  THEY ATTENDED THE MEETINGS AT WHICH THE SECRET STRIKE
VOTE AND THE RENEWED STRIKE VOTE WERE TAKEN.  IT WAS UPON THIS AND
SIMILAR EVIDENCE THAT THE MILWAUKEE COUNTY COURT FOUND THAT NATZKE "HAD
BY HIS ACTIONS BECOME A MEMBER OF THE UNION FOR ALL PURPOSES  ...  ." 
ALLIS-CHALMERS OFFERED NO EVIDENCE IN THIS PROCEEDING THAT ANY OF THE
FINED EMPLOYEES ENJOYED OTHER THAN FULL UNION MEMBERSHIP.  WE WILL NOT
PRESUME THE CONTRARY.  CF. MACHINISTS V. STREET, 367 U.S. 740, 774. 
(FN36)  INDEED, IT IS AND HAS BEEN ALLIS-CHALMERS' POSITION THAT THE
TAFT-HARTLEY PROHIBITIONS APPLY WHATEVER THE NATURE OF THE MEMBERSHIP. 
WHETHER THOSE PROHIBITIONS WOULD APPLY IF THE LOCALS HAD IMPOSED FINES
ON MEMBERS WHOSE MEMBERSHIP WAS IN FACT LIMITED TO THE OBLIGATION OF
PAYING MONTHLY DUES IS A QUESTION NOT BEFORE US AND UPON WHICH WE
INTIMATE NO VIEW.  (FN37) 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  THE RELEVANT PROVISIONS OF SECS 7 AND 8(B)(1)(A), 61 STAT. 140,
141, 29 U.S.C.  SECS 157 AND 158(B)(1)(A), ARE: 

"SEC. 7.  EMPLOYEES SHALL HAVE THE RIGHT TO  ...  ENGAGE IN  ...
CONCERTED ACTIVITIES  ...  , AND SHALL ALSO HAVE THE RIGHT TO REFRAIN
FROM ANY OR ALL OF SUCH ACTIVITIES  ...  ." 

"SEC. 8(B).  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION OR ITS AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7: PROVIDED, THAT THIS PARAGRAPH SHALL NOT
IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN  ...
." 

FN2  TWO LOCALS WERE INVOLVED, LOCAL 248 AT THE WEST ALLIS PLANT, AND
LOCAL 401 AT THE LA CROSSE PLANT.  ALTHOUGH ALLIS-CHALMERS' CHARGES OF
UNFAIR LABOR PRACTICES MENTIONED THREATS OF FINES AS WELL AS IMPOSITION
OF FINES, THE ONLY PROOF THAT FINES WERE SPECIFICALLY THREATENED DURING
A STRIKE CONSISTED OF A LETTER TO STRIKEBREAKING WEST ALLIS MEMBERS OF
LOCAL 248 IN 1959.  AS TO THE 1962 STRIKE AT WEST ALLIS AND BOTH THE
1959 AND 1962 STRIKES AT LA CROSSE, MENTION OF FINES FIRST OCCURRED
AFTER THE STRIKES WERE OVER.  THE THREAT OF COURT ENFORCEMENT OF THE
FINES WAS FIRST MADE IN 1960 IN LETTERS SENT TO FINED MEMBERS OF LOCAL
248 WHO HAD NOT PAID THEIR FINES; THE LETTER INFORMED THEM OF THE
OUTCOME OF A WISCONSIN SUPREME COURT OPINION HOLDING FINES ENFORCEABLE,
UAW, LOCAL 756 V. WOYCHIK, 5 WIS. 2D 528, 93 N.W.2D 336 (1958).  LOCAL
401'S TEST SUIT WAS BROUGHT AFTER THE 1962 STRIKE. 

FN3  SEE J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332; MEDO PHOTO
SUPPLY CORP. V. LABOR BOARD, 321 U.S. 678; ILGWU V. LABOR BOARD, 366
U.S. 731, 737. 

FN4  SEE MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270, 280. 

FN5  SEE LABOR BOARD V. ROCKAWAY NEWS CO., 345 U.S. 71. 

FN6  WELLINGTION, UNION DEMOCRACY AND FAIR REPRESENTATION:  FEDERAL
RESPONSIBILITY IN A FEDERAL SYSTEM, 67 YALE L.J. 1327, 1333 (1958). 

FN7  SEE, E.G., SUMMERS, LEGAL LIMITATIONS ON UNION DISCIPLINE, 64
HARV. L. REV. 1049 (1951); PHILIP TAFT, THE STRUCTURE AND GOVERNMENT OF
LABOR UNIONS 117-180 (1954); TAYLOR, THE ROLE OF UNIONS IN A DEMOCRATIC
SOCIETY, SELECTED READINGS ON GOVERNMENT REGULATION OF INTERNAL UNION
AFFAIRS AFFECTING THE RIGHTS OF MEMBERS, PREPARED FOR THE SUBCOMMITTEE
ON LABOR OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE 17
(COMMITTEE PRINT, 85TH CONG., 2D SESS., 1958)(HEREAFTER SELECTED
READINGS); KERR, UNIONS AND UNION LEADERS OF THEIR OWN CHOOSING,
SELECTED READINGS, SUPRA, AT 106, 109. 

FN8  SUMMERS, SUPRA, N. 7, AT 1049. 

"STRIKEBREAKING IS UNIFORMLY CONSIDERED SUFFICIENT REASON FOR
EXPULSION WHETHER OR NOT THERE IS AN EXPRESS PROHIBITION, FOR IT
UNDERCUTS THE UNION'S PRINCIPAL WEAPON AND DEFEATS THE ECONOMIC
OBJECTIVE FOR WHICH THE UNION EXISTS."  SUMMERS, DISCIPLINARY POWERS OF
UNIONS, 3 IND. & LAB.  REL.  REV. 483, 495 (1950). 

FN9  NATIONAL INDUSTRIAL CONFERENCE BOARD, THE UNION, THE LEADER, AND
THE MEMBERS, SELECTED READINGS, AT 40, 69-71; SUMMERS, DISCIPLINARY
POWERS OF UNIONS, 3 IND. & LAB.  REL. REV. 483, 508-512 (1950);
DISCIPLINARY POWERS AND PROCEDURES IN UNION CONSTITUTIONS, U.S. DEPT.
OF LABOR BULLETIN NO. 1350, BUR.  LAB.  STATISTICS (1963). 

IT IS SUGGESTED THAT WHILE SUCH PROVISIONS FOR FINES AND EXPULSION
WERE A COMMON ELEMENT OF UNION CONSTITUTIONS AT THE TIME OF THE
ENACTMENT OF SEC 8(B)(1), SUCH BACKGROUND LOSES ITS COGENCY HERE
BECAUSE SUCH PROVISIONS DID NOT EXPLICITLY CALL FOR COURT ENFORCEMENT. 
HOWEVER THE POTENTIALITY OF RESORT TO COURTS FOR ENFORCEMENT IS
IMPLICIT IN ANY BINDING OBLIGATION.  SURELY IT CANNOT BE SAID THAT THE
ABSENCE OF A "COURT ENFORCEABILITY" CLAUSE IN A CONTRACT OF SALE
IMPLIES THAT THE PARTIES DO NOT FORESEE RESORT TO THE COURTS AS A
POSSIBLE MEANS OF ENFORCEMENT.  IT IS ALSO SUGGESTED THAT COURT
ENFORCEMENT OF FINES IS "A RATHER RECENT INNOVATION."  YET SUCH
ENFORCEMENT WAS KNOWN AS EARLY AS 1867.  MASTER STEVEDORES' ASSN. V.
WALSH, 2 DALY 1 (N.Y.). 

FN10  SUMMERS, THE LAW OF UNION DISCIPLINE:  WHAT THE COURTS DO IN
FACT, 70 YALE L.J. 175, 180 (1960). 

FN11  SEE GENERALLY CHAFEE, THE INTERNAL AFFAIRS OF ASSOCIATIONS NOT
FOR PROFIT, 43 HARV. L. REV. 993 (1930); NOTE, JUDICIAL CONTROL OF
ACTIONS OF PRIVATE ASSOCIATIONS, 76 HARV. L. REV. 983 (1963); COX,
INTERNAL AFFAIRS OF LABOR UNIONS UNDER THE LABOR REFORM ACT OF 1959, 58
MICH. L. REV. 819, 835-836 (1960). 

FN12  "SINCE THE UNION'S EFFECTIVENESS IS BASED LARGELY ON THE DEGREE
TO WHICH IT CONTROLS THE AVAILABLE LABOR, EXPULSIONS TEND TO WEAKEN THE
UNION.  IF LARGE NUMBERS ARE EXPELLED, THEY BECOME A THREAT TO UNION
STANDARDS BY UNDERCUTTING UNION RATES, AND IN CASE OF A STRIKE THEY MAY
ACT AS STRIKEBREAKERS  ...  .  THEREFORE, EXPULSIONS MUST BE LIMITED TO
VERY SMALL NUMBERS UNLESS THE UNION IS SO STRONGLY ENTRENCHED THAT IT
CANNOT BE EFFECTIVELY CHALLENGED BY THE EMPLOYER OR ANOTHER UNION." 
SUMMERS, DISCIPLINARY POWERS OF UNIONS, 3 IND. & LAB.  REL.  REV. 483,
487-488 (1950). 

FN13  93 CONG. REC. 4193, II LEG.  HIST.  1097. 

FN14  93 CONG. REC. 4016-4017, II LEG.  HIST.  1018-1021.  EXAMPLES
WERE GIVEN IN DEBATE OF THREATS BY UNIONS TO DOUBLE THE DUES OF
EMPLOYEES WHO WAITED UNTIL LATER TO JOIN.  IT IS SUGGESTED THAT THIS IS
NO LESS WITHIN THE AMBIT OF INTERNAL UNION AFFAIRS THAN THE FINES
IMPOSED IN THE PRESENT CASE.  BUT THE SIGNIFICANT DISTINCTION IS THAT
THE CITED EXAMPLES NECESSARILY CONCERN THREATS AGAINST NONMEMBERS
DESIGNED TO COERCE THEM INTO JOINING, AND ARE THEREFORE FURTHER
EVIDENCE OF THE PRIMARY CONCERN OF CONGRESS WITH ORGANIZATIONAL
TACTICS. 

FN15  93 CONG. REC. 4271, 4432, 4434, II LEG.  HIST.  1139, 1199,
1203. 

FN16  93 CONG. REC. A-2252, II LEG.  HIST.  1524-1525. 

FN17  93 CONG. REC. 4272, II LEG.  HIST.  1141. 

FN18  93 CONG. REC. 4433, II LEG.  HIST.  1200. 

FN19  93 CONG. REC. 4435, II LEG.  HIST.  1204. 

FN20 93 CONG. REC. 4021-4022, II LEG.  HIST.  1025-1027. 

FN21  93 CONG. REC. 4023, II LEG.  HIST.  1028. 

SEE SUMMERS, DISCIPLINARY POWERS OF UNIONS, 3 IND. & LAB.  REL.  REV.
483:  "IT IS SIGNIFICANT THAT AMONG THE MAJOR CHANGES MADE IN THE
WAGNER ACT BY THE LABOR MANAGEMENT RELATIONS ACT OF 1947 WAS THE
ADDITION OF SECTIONS PURPORTED TO BE AIMED AT PROTECTING INDIVIDUAL
UNION MEMBERS AGAINST UNDEMOCRATIC AND CORRUPT LEADERS." 

FN22  93 CONG. REC. 4023, II LEG.  HIST.  1028. 

FN23  93 CONG. REC. 4024, II LEG.  HIST.  1030.  IT WAS IN THE
CONTEXT OF THE QUOTED LIMITING STATEMENTS THAT, IN ANSWER TO SENATOR
IVES' SUGGESTION THAT THE MATTER OF UNION COERCION SHOULD BE FURTHER
INVESTIGATED, SENATOR TAFT MADE THE BROAD REMARK THAT "MERELY TO
REQUIRE THAT UNIONS BE SUBJECT TO THE SAME RULES THAT GOVERN EMPLOYERS,
AND THAT THEY DO NOT HAVE THE RIGHT TO INTERFERE WITH OR COERCE
EMPLOYEES, EITHER THEIR OWN MEMBERS OR THOSE OUTSIDE THEIR UNION, IS
SUCH A CLEAR MATTER, AND SEEMS TO ME SO EASY TO DETERMINE, THAT I WOULD
HOPE WE WOULD ALL AGREE."  93 CONG. REC. 4025, II LEG.  HIST.  1032. 

FN24  93 CONG. REC. 4023, 4024, II LEG.  HIST.  1029, 1030.  IT IS
THIS COLLOQUY TO WHICH THE DISSENT APPARENTLY REFERS IN ITS STATEMENT
THAT IN ANSWER TO SENATOR PEPPER'S CHARGE THAT THE AMENDMENT PROTECTED
WORKERS AGAINST THEIR OWN LEADERS, "SENATOR TAFT DID NOT DENY IT."  IT
MAY BE MORE ACCURATE TO SAY THAT SENATOR TAFT EVADED THE ISSUE. 

FN25  93 CONG. REC. 4435-4436, II LEG.  HIST.  1205-1206. THE
FOLLOWING STATEMENT OF SENATOR TAFT HAD NO REFERENCE TO THE CONDUCT OF
A UNION VIS-A-VIS A MEMBER WHO CROSSED THE UNION'S PICKET LINE BUT
REFERRED TO UNION CONDUCT IN PREVENTING EMPLOYEES NOT IN THE BARGAINING
UNIT FROM GOING TO WORK - "MASS PICKETING, WHICH ABSOLUTELY PREVENTS
ALL THE OFFICE FORCE FROM GOING INTO THE OFFICE OF A PLANT." 

"THE EFFECT OF THE PENDING AMENDMENT IS THAT THE BOARD MAY CALL THE
UNION BEFORE THEM, EXACTLY AS IT HAS CALLED THE EMPLOYER, AND SAY,
'HERE ARE THE RULES OF THE GAME.  YOU MUST CEASE AND DESIST FROM
COERCING AND RESTRAINING THE EMPLOYEES WHO WANT TO WORK FROM GOING TO
WORK AND EARNING THE MONEY WHICH THEY ARE ENTITLED TO EARN.'  THE BOARD
MAY SAY, 'YOU CAN PERSUADE THEM; YOU CAN PUT UP SIGNS; YOU CAN CONDUCT
ANY FORM OF PROPAGANDA YOU WANT TO IN ORDER TO PERSUADE THEM, BUT YOU
CANNOT, BY THREAT OF FORCE OR THREAT OF ECONOMIC REPRISAL, PREVENT THEM
FROM EXERCISING THEIR RIGHT TO WORK.'  AS I SEE IT, THAT IS THE EFFECT
OF THE AMENDMENT."  93 CONG. REC. 4436, II LEG.  HIST.  1206. 

HIS STATEMENTS IN A COLLOQUY WITH SENATOR MORSE WERE MADE IN THE SAME
CONTEXT.  93 CONG. REC. 4436, II LEG.  HIST.  1207.  WE READ HIS
"SUPPLEMENTARY ANALYSIS OF LABOR BILL AS PASSED" AS ALSO REFERRING TO
COERCION OF NONMEMBERS OF THE STRIKING BARGAINING UNIT.  93 CONG. REC.
6859, II LEG.  HIST. 1623.  THAT HE DISTINGUISHED MEMBERS FROM
NONMEMBERS ALSO APPEARS FROM HIS STATEMENT CONCERNING THE SECTION THAT
"ITS APPLICATION TO LABOR ORGANIZATIONS MAY HAVE A SLIGHTLY DIFFERENT
IMPLICATION, BUT IT SEEMS TO ME PERFECTLY CLEAR THAT FROM THE POINT OF
VIEW OF THE EMPLOYEE THE TWO CASES ARE PARALLEL."  93 CONG.  REC. 4023,
II LEG.  HIST.  1028. 

IT IS NOT TRUE THAT "THE SPONSORS OF THE SECTION REPEATEDLY ANNOUNCED
THAT IT WOULD PROTECT UNION MEMBERS FROM THEIR LEADERS."  ONLY SENATOR
TAFT'S STATEMENTS PROVIDE LIMITED SUPPORT FOR THE PROPOSITION. 

FN26  S. REP. NO. 105, 80TH CONG., 1ST SESS., 50, I LEG.  HIST.  456;
93 CONG. REC.  4025, 4436, II LEG.  HIST.  1032, 1207. 

FN27  CF. STATEMENT OF JUSTICE STONE IN SOUTH CAROLINA HWY.  DEPT. 
V. BARNWELL BROS., 303 U.S. 177, 184-185, N. 2: 

"STATE REGULATIONS AFFECTING INTERSTATE COMMERCE, WHOSE PURPOSE OR
EFFECT IS TO GAIN FOR THOSE WITHIN THE STATE AN ADVANTAGE AT THE
EXPENSE OF THOSE WITHOUT, OR TO BURDEN THOSE OUT OF THE STATE WITHOUT
ANY CORRESPONDING ADVANTAGE TO THOSE WITHIN, HAVE BEEN THOUGHT TO
IMPINGE UPON THE CONSTITUTIONAL PROHIBITION EVEN THOUGH CONGRESS HAS
NOT ACTED.  (CITATIONS OMITTED.) 

"UNDERLYING THE STATED RULE HAS BEEN THE THOUGHT, OFTEN EXPRESSED IN
JUDICIAL OPINION, THAT WHEN THE REGULATION IS OF SUCH A CHARACTER THAT
ITS BURDEN FALLS PRINCIPALLY UPON THOSE WITHOUT THE STATE, LEGISLATIVE
ACTION IS NOT LIKELY TO BE SUBJECTED TO THOSE POLITICAL RESTRAINTS
WHICH ARE NORMALLY EXERTED ON LEGISLATION WHERE IT AFFECTS ADVERSELY
SOME INTERESTS WITHIN THE STATE." 

A COMMENTATOR HAS NOTED THAT "THE BALLOT IN A FREE ELECTION IS THE
INDIVIDUAL UNION MEMBER'S WEAPON FOR INDUCING PERFORMANCE IN ACCORDANCE
WITH HIS DESIRE."  WELLINGTON, UNION DEMOCRACY AND FAIR REPRESENTATION:
FEDERAL RESPONSIBILITY IN A FEDERAL SYSTEM, 67 YALE L.J. 1327, 1329
(1958). 

FN28  93 CONG. REC. 4272, 4433, II LEG.  HIST.  1141, 1200. 

FN29  OUR CONCLUSION THAT SEC 8(B)(1)(A) DOES NOT PROHIBIT THE
LOCALS' ACTIONS MAKES IT UNNECESSARY TO PASS ON THE BOARD HOLDING THAT
THE PROVISO PROTECTED SUCH ACTIONS.    FN30  THE NOTIFICATION BY LOCAL
248 TO ITS STRIKEBREAKING EMPLOYEES THAT EACH DAY THEY CONTINUED TO
WORK MIGHT CONSTITUTE A SEPARATE OFFENSE PUNISHABLE BY A FINE OF $100
WAS SENT ONLY TO MEMBERS OF LOCAL 248, NOT THOSE OF LOCAL 401, AND ONLY
DURING ONE OF THE TWO STRIKES CALLED BY LOCAL 248.  THE NOTIFICATION
WAS SENT ONLY TO THOSE EMPLOYEES WHO HAD ALREADY DECIDED TO WORK DURING
THE STRIKE.  MOST IMPORTANT, NO INFERENCE CAN BE DRAWN FROM THAT
NOTIFICATION THAT COURT ENFORCEMENT WOULD BE THE MEANS OF COLLECTION. 
THEREFORE, AT LEAST UNDER THE PROVISO, IF NOT THE BODY OF SEC
8(B)(1)(A), SUCH NOTIFICATION WOULD NOT BE AN UNFAIR LABOR PRACTICE. 
IT IS NOT ARGUED THAT THE FINES FOR WHICH COURT ENFORCEMENT WAS
ACTUALLY SOUGHT WERE UNREASONABLY LARGE. 

FN31  SENATOR WILEY'S REFERENCE IN A SPEECH AFTER SEC 8(B)(1) WAS
PASSED TO $20,000 FINES FOR CROSSING A PICKET LINE WAS NOT DIRECTED TO
THE SECTION.  93 CONG. REC. 5000, II LEG.  HIST.  1471. 

FN32  IT HAS BEEN NOTED THAT THE STATE COURTS, IN REVIEWING THE
IMPOSITION OF UNION DISCIPLINE, FIND WAYS TO STRIKE DOWN "DISCIPLINE
WHICH INVOLVES A SEVERE HARDSHIP."  SUMMERS, LEGAL LIMITATIONS ON UNION
DISCIPLINE, 64 HARV. L. REV. 1049, 1078 (1951). 

IT IS SUGGESTED THAT READING SEC 8(B)(1) TO ALLOW COURT ENFORCEMENT
OF FINES ADDS A "NEW WEAPON TO THE UNION'S ECONOMIC ARSENAL," AND IS
INCONSISTENT WITH THE MOOD OF CONGRESS TO CURTAIL THE POWERS OF
UNIONS.  THE QUESTION HERE, HOWEVER, IS NOT WHETHER CONGRESS GAVE TO
UNIONS A NEW POWER, BUT WHETHER IT ELIMINATED, WITHOUT DEBATE, A POWER
WHICH THE UNIONS ALREADY POSSESSED. 

FN33  IN 1958, IN MACHINISTS V. GONZALES, 356 U.S. 617, 620, WE
SAID: 

"THE PROTECTION OF UNION MEMBERS IN THEIR RIGHTS AS MEMBERS FROM
ARBITRARY CONDUCT BY UNIONS AND UNION OFFICERS HAS NOT BEEN UNDERTAKEN
BY FEDERAL LAW, AND INDEED THE ASSERTION OF ANY SUCH POWER HAS BEEN
EXPRESSLY DENIED." 

SEE COX, INTERNAL AFFAIRS OF LABOR UNIONS UNDER THE LABOR REFORM ACT
OF 1959, 58 MICH.  L. REV. 819, 852: 

"THE ACT IS THE FIRST MAJOR STEP IN THE REGULATION OF THE INTERNAL
AFFAIRS OF LABOR UNIONS.  IT EXPANDS THE NATIONAL LABOR POLICY INTO THE
AREA OF RELATIONS BETWEEN THE EMPLOYEES AND THE LABOR UNION. 
PREVIOUSLY NATIONAL POLICY WAS CONFINED TO RELATIONSHIPS BETWEEN
MANAGEMENT AND UNION." 

FN34  93 CONG. REC. 4023, II LEG.  HIST.  1028. 

FN35  29 U.S.C. SECS 411-415, 431(C), 461-464, 481-482. 
SIGNIFICANTLY, THE LANDRUM-GRIFFIN AMENDMENTS EXPRESSLY RENDERED IT
UNLAWFUL FOR ANY UNION "TO FINE, SUSPEND, EXPEL, OR OTHERWISE
DISCIPLINE ANY OF ITS MEMBERS FOR EXERCISING ANY RIGHT TO WHICH HE IS
ENTITLED  ...  " UNDER THAT ACT.  29 U.S.C. SEC 529. 

FN36  IN MACHINISTS V. STREET, WE HELD THAT EMPLOYEES WHO WERE
MEMBERS OF A UNION UNDER A UNION SECURITY AGREEMENT AUTHORIZED BY THE
RAILWAY LABOR ACT, HAD A RIGHT TO RELIEF AGAINST A UNION USING THEIR
DUES PAYMENTS FOR POLITICAL PURPOSES.  WE SAID, AT 774: 

"ANY REMEDIES, HOWEVER, WOULD PROPERLY BE GRANTED ONLY TO EMPLOYEES
WHO HAVE MADE KNOWN TO THE UNION OFFICIALS THAT THEY DO NOT DESIRE
THEIR FUNDS TO BE USED FOR POLITICAL CAUSES TO WHICH THEY OBJECT.  THE
SAFEGUARDS OF THE ACT  ...  WERE ADDED FOR THE PROTECTION OF
DISSENTERS' INTEREST, BUT DISSENT IS NOT TO BE PRESUMED - IT MUST
AFFIRMATIVELY BE MADE KNOWN TO THE UNION BY THE DISSENTING EMPLOYEE
...  . THUS WE THINK THAT ONLY THOSE WHO HAVE IDENTIFIED THEMSELVES AS
OPPOSED TO POLITICAL USES OF THEIR FUNDS ARE ENTITLED TO RELIEF IN THIS
ACTION." 

FN37  UNDER SEC 8(A)(3) THE EXTENT OF AN EMPLOYEE'S OBLIGATION UNDER
A UNION SECURITY AGREEMENT IS "EXPRESSLY LIMITED TO THE PAYMENT OF
INITIATION FEES AND MONTHLY DUES  ...  .  'MEMBERSHIP' AS A CONDITION
OF EMPLOYMENT IS WHITTLED DOWN TO ITS FINANCIAL CORE."  LABOR BOARD V.
GENERAL MOTORS CORP., 373 U.S. 734, 742. 

NOT BEFORE US IS THE QUESTION OF THE EXTENT TO WHICH UNION ACTION FOR
ENFORCEMENT OF DISCIPLINARY PENALTIES IS PRE-EMPTED BY FEDERAL LABOR
LAW.  COMPARE MACHINISTS V. GONZALES, 356 U.S. 617; PLUMBERS' UNION V.
BORDEN, 373 U.S. 690. 

MR. JUSTICE WHITE, CONCURRING. 

IT IS TRUE THAT SEC 8(B)(1)(A) MAKES IT AN UNFAIR LABOR PRACTICE FOR
A UNION TO RESTRAIN OR COERCE ANY EMPLOYEES IN THE EXERCISE OF SEC 7
RIGHTS, BUT THE PROVISO PERMITS THE UNION TO MAKE ITS OWN RULES WITH
RESPECT TO ACQUISITION AND RETENTION OF MEMBERSHIP.  HENCE, A UNION MAY
EXPEL TO ENFORCE ITS OWN INTERNAL RULES, EVEN THOUGH A PARTICULAR RULE
LIMITS THE SEC 7 RIGHTS OF ITS MEMBERS AND EVEN THOUGH EXPULSION TO
ENFORCE IT WOULD BE A CLEAR AND SERIOUS BRAND OF "COERCION" IMPOSED IN
DEROGATION OF THOSE SEC 7 RIGHTS.  SUCT RESTRAINT AND COERCION CONGRESS
PERMITTED BY ADDING THE PROVISO TO SEC 8 (B)(1)(A).  THUS, NEITHER THE
MAJORITY NOR THE DISSENT IN THIS CASE QUESTIONS THE VALIDITY OF THE
UNION RULE AGAINST ITS MEMBERS CROSSING PICKET LINES DURING A PROPERLY
CALLED STRIKE, OR THE PROPRIETY OF EXPULSION TO ENFORCE THE RULE. 
BY A UNION TO PREVENT THE EXERCISE BY ITS MEMBERS OF THEIR SEC 7
RIGHTS.  "COERCIVE" UNION RULES ARE ENFORCEABLE AT LEAST BY EXPULSION. 

THE DISSENTING OPINION IN THIS CASE, ALTHOUGH NOT QUESTIONING THE
ENFORCEABILITY OF COERCIVE RULES BY EXPULSION FROM MEMBERSHIP,
QUESTIONS WHETHER FINES FOR VIOLATING SUCH RULES ARE ENFORCEABLE AT
ALL, BY EXPULSION OR OTHERWISE.  THE DISSENT WOULD AT LEAST HOLD COURT
COLLECTION OF FINES TO BE AN UNFAIR LABOR PRACTICE, APPARENTLY FOR THE
REASON THAT FINES COLLECTIBLE IN COURT MAY BE MORE COERCIVE THAN FINES
ENFORCEABLE BY EXPULSION.  MY BROTHER BRENNAN, FOR THE COURT, TAKES A
DIFFERENT VIEW, REASONING THAT SINCE EXPULSION WOULD IN MANY CASES -
CERTAINLY IN THIS ONE INVOLVING A STRONG UNION - BE A FAR MORE COERCIVE
TECHNIQUE FOR ENFORCING A UNION RULE AND FOR COLLECTING A REASONABLE
FINE THAN THE THREAT OF COURT ENFORCEMENT, THERE IS NO BASIS FOR
THINKING THAT CONGRESS, HAVING ACCEPTED EXPULSION AS A PERMISSIBLE
TECHNIQUE TO ENFORCE A RULE IN DEROGATION OF SEC 7 RIGHTS, NEVERTHELESS
INTENDED TO BAR ENFORCEMENT BY ANOTHER METHOD WHICH MAY BE FAR LESS
COERCIVE. 

I DO NOT MEAN TO INDICATE, AND I DO NOT READ THE MAJORITY OPINION
OTHERWISE, THAT EVERY CONCEIVABLE INTERNAL UNION RULE WHICH IMPINGES
UPON THE SEC 7 RIGHTS OF UNION MEMBERS IS VALID AND ENFORCEABLE BY
EXPULSION AND COURT ACTION.  THERE MAY WELL BE SOME INTERNAL UNION
RULES WHICH ON THEIR FACE ARE WHOLLY INVALID AND UNENFORCEABLE.  BUT
THE COURT SEEMS UNANIMOUS IN UPHOLDING THE RULE AGAINST CROSSING PICKET
LINES DURING A STRIKE AND ITS ENFORCEABILITY BY EXPULSION FROM
MEMBERSHIP.  ON THIS PREMISE I THINK THE OPINION WRITTEN FOR THE COURT
IS THE MORE PERSUASIVE AND SENSIBLE CONSTRUCTION OF THE STATUTE AND I
THEREFORE JOIN IT, ALTHOUGH I AM DOUBTFUL ABOUT THE IMPLICATIONS OF
SOME OF ITS GENERALIZED STATEMENTS. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE HARLAN, AND
MR. JUSTICE STEWART JOIN, DISSENTING. 

THE UNITED AUTOMOBILE WORKERS WENT ON A LAWFUL ECONOMIC STRIKE
AGAINST THE ALLIS-CHALMERS MANUFACTURING CO. SOME UNION MEMBERS,
REFUSING TO ENGAGE IN THE CONCERTED STRIKE ACTIVITIES, CROSSED THE
PICKET LINES AND CONTINUED TO WORK FOR ALLIS-CHALMERS.  THE RIGHT TO
REFRAIN FROM ENGAGING IN SUCH "CONCERTED ACTIVITIES" IS GUARANTEED ALL
EMPLOYEES BY THE LANGUAGE OF SEC 7 OF THE NATIONAL LABOR RELATIONS ACT,
AS AMENDED, 61 STAT. 140, AND SEC 8(B)(1)(A) OF THE ACT, 61 STAT. 141,
MAKES IT AN UNFAIR LABOR PRACTICE FOR A UNION TO "RESTRAIN OR COERCE"
EMPLOYEES IN THEIR EXERCISE OF THEIR SEC 7 RIGHTS.  DESPITE THESE
EMPHATIC GUARANTEES OF THE ACT, THE UNION FILED CHARGES AGAINST THE
EMPLOYEES AND IMPOSED FINES AGAINST THOSE WHO HAD CROSSED ITS PICKET
LINES TO GO BACK TO WORK.  THOUGH THE PROVISO TO SEC 8 (B)(1)(A)
PRESERVES THE UNION'S "RIGHT  ...  TO PRESCRIBE ITS OWN RULES WITH
RESPECT TO THE  ...  RETENTION OF MEMBERSHIP THEREIN," THE UNION DID
NOT ATTEMPT TO EXERCISE ITS RIGHT UNDER THE PROVISO TO EXPEL THE
DISCIPLINED MEMBERS WHEN THEY REFUSED TO PAY THE FINES.  INSTEAD, IT
BROUGHT LEGAL PROCEEDINGS IN STATE COURTS TO COMPEL THE PAYMENT OF THE
FINES.  THE COURT NOW AFFIRMS THE LABOR BOARD'S ACTION IN REFUSING TO
FIND THE UNION GUILTY OF AN UNFAIR LABOR PRACTICE UNDER SEC 8(B)(1)(A)
FOR FINING ITS MEMBERS BECAUSE THEY CROSSED ITS PICKET LINES.  I CANNOT
AGREE AND, THEREFORE, WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS
WHICH SET ASIDE THE LABOR BOARD'S ORDER. 

                 I. 

IN DETERMINING WHAT THE COURT HERE HOLDS, IT IS HELPFUL TO NOTE WHAT
IT DOES NOT HOLD.  SINCE THE UNION RESORTED TO THE COURTS TO ENFORCE
ITS FINES INSTEAD OF RELYING ON ITS OWN INTERNAL SANCTIONS SUCH AS
EXPULSION FROM MEMBERSHIP, THE COURT CORRECTLY ASSUMES THAT THE PROVISO
TO SEC 8(B)(1)(A) CANNOT BE READ TO AUTHORIZE ITS HOLDING.  NEITHER
DOES THE COURT ATTEMPT TO SUSTAIN ITS HOLDING BY REFERENCE TO SEC 7
WHICH GIVES EMPLOYEES THE RIGHT TO REFRAIN FROM ENGAGING IN CONCERTED
ACTIVITIES.   TO BE SURE, THE COURT IN CHARACTERIZING THE UNION-MEMBER
RELATIONSHIP AS "CONTRACTUAL" AND IN EMPHASIZING THAT ITS HOLDING IS
LIMITED TO SITUATIONS WHERE THE EMPLOYEE IS A "FULL MEMBER" OF THE
UNION, IMPLIES THAT BY JOINING A UNION AN EMPLOYEE GIVES UP OR WAIVES
SOME OF HIS SEC 7 RIGHTS.  BUT THE COURT DOES NOT SAY THAT A UNION
MEMBER IS WITHOUT THE SEC 7 RIGHT TO REFRAIN FROM PARTICIPATING IN SUCH
CONCERTED ACTIVITY AS AN ECONOMIC STRIKE CALLED BY HIS UNION.  SUCH A
HOLDING WOULD BE CLEARLY UNWARRANTED EVEN BY RESORT TO THE LEGISLATIVE
HISTORY OF THE 1947 ADDITION TO SEC 7 OF "THE RIGHT TO REFRAIN FROM ANY
OR ALL OF SUCH ACTIVITIES."  ACCORDING TO SENATOR TAFT, THAT PHRASE WAS
ADDED BY THE CONFERENCE COMMITTEE TO "MAKE THE PROHIBITION CONTAINED IN
DID NOT WISH TO JOIN OR DID NOT CARE TO PARTICIPATE IN A STRIKE OR A
PICKET LINE."  93 CONG. REC. 6859, II LEG.  HIST.  1623. 

WITH NO RELIANCE ON THE PROVISO TO SEC 8(B)(1)(A) OR ON THE MEANING
OF SEC 7, THE COURT'S HOLDING BOILS DOWN TO THIS:  A COURT-ENFORCED
REASONABLE FINE FOR NONPARTICIPATION IN A STRIKE DOES NOT "RESTRAIN OR
COERCE" AN EMPLOYEE IN THE EXERCISE OF HIS RIGHT NOT TO PARTICIPATE IN
THE STRIKE.  IN HOLDING AS IT DOES, THE COURT INTERPRETS THE WORDS
"RESTRAIN OR COERCE" IN A WAY DIRECTLY OPPOSED TO THEIR LITERAL
MEANING, FOR THE COURT ADMITS THAT FINES ARE AS COERCIVE AS PENALTIES
IMPOSED ON CITIZENS FOR THE NONPAYMENT OF TAXES.  THOUGH SENATOR TAFT,
IN ANSWER TO CHARGES THAT THESE WORDS WERE AMBIGUOUS, SAID THEIR
MEANING "IS PERFECTLY CLEAR," 93 CONG. REC. 4021, II LEG.  HIST.  1025,
AND THOUGH ANY UNION OFFICIAL WITH SUFFICIENT INTELLIGENCE AND LEARNING
TO BE CHOSEN AS SUCH COULD HARDLY FAIL TO COMPREHEND THE MEANING OF
THESE PLAIN, SIMPLE ENGLISH WORDS, THE COURT INSISTS ON FINDING AN
"INHERENT IMPRECISION" IN THESE WORDS.  AND THAT CHARACTERIZATION THEN
ALLOWS THE COURT TO RESORT TO "WHAT LEGISLATIVE MATERIALS THERE ARE." 
IN DOING SO, THE COURT FINDS THREE SIGNIFICANT THINGS:  (1) THERE IS
"NOT A SINGLE WORD" TO INDICATE THAT SEC 8(B)(1)(A) WAS INTENDED TO
APPLY TO "TRADITIONAL INTERNAL UNION DISCIPLINE IN GENERAL, OR
DISCIPLINARY FINES IN PARTICULAR"; (2) THE "REPEATED REFRAIN" RUNNING
THROUGH THE DEBATES ON THE SECTION WAS THAT CONGRESS DID NOT INTEND TO
IMPOSE ANY LIMITATIONS ON THE "INTERNAL AFFAIRS OF UNIONS"; (3) THE
SENATORS WHO SUPPORTED THE SECTION WERE PRIMARILY CONCERNED WITH UNION
COERCION DURING ORGANIZATIONAL DRIVES AND WITH UNION VIOLENCE IN
GENERAL. 

EVEN WERE I TO AGREE WITH THE COURT'S THREE OBSERVATIONS ABOUT THE
LEGISLATIVE HISTORY OF SEC 8(B)(1)(A), I DO NOT THINK THEY ALONE
JUSTIFY DISREGARDING THE PLAIN MEANING OF THE SECTION, AND IT SEEMS
PERFECTLY CLEAR TO ME THAT THE COURT DOES NOT THINK SO EITHER.  THE
REAL REASON FOR THE COURT'S DECISION IS ITS POLICY JUDGMENT THAT
UNIONS, ESPECIALLY WEAK ONES, NEED THE POWER TO IMPOSE FINES ON
STRIKEBREAKERS AND TO ENFORCE THOSE FINES IN COURT.  IT IS NOT ENOUGH,
SAYS THE COURT, THAT THE UNIONS HAVE THE POWER TO EXPEL THOSE MEMBERS
WHO REFUSE TO PARTICIPATE IN A STRIKE OR WHO FAIL TO PAY FINES IMPOSED
ON THEM FOR SUCH FAILURE TO PARTICIPATE; IT IS ESSENTIAL THAT WEAK
UNIONS HAVE THE CHOICE BETWEEN EXPULSION AND COURT-ENFORCED FINES,
SIMPLY BECAUSE THE LATTER ARE MORE EFFECTIVE IN THE SENSE OF BEING MORE
PUNITIVE.  THOUGH THE ENTIRE MOOD OF CONGRESS IN 1947 WAS TO CURTAIL
THE POWER OF UNIONS, AS IT HAD PREVIOUSLY CURTAILED THE POWER OF
EMPLOYERS, IN ORDER TO EQUALIZE THE POWER OF THE TWO, THE COURT IS
UNWILLING TO BELIEVE THAT CONGRESS INTENDED TO IMPAIR "THE USEFULNESS
OF LABOR'S CHERISHED STRIKE WEAPON."  (FN1)  I CANNOT AGREE WITH THIS
CONCLUSION OR SUBSCRIBE TO THE COURT'S UNARTICULATED PREMISE THAT THE
COURT HAS POWER TO ADD A NEW WEAPON TO THE UNION'S ECONOMIC ARSENAL
WHENEVER THE COURT BELIEVES THAT THE UNION NEEDS THAT WEAPON.  THAT IS
A JOB FOR CONGRESS, NOT THIS COURT. 

                                 II. 

THOUGH THE COURT RECOGNIZES THAT A UNION FINE IS IN FACT COERCIVE, IT
SEEKS SUPPORT FOR ITS HOLDING - THAT COURT-ENFORCED FINES ARE NOT
PROHIBITED BY SEC 8(B)(1)(A) - BY REFERENCE TO THE PROVISO WHICH
AUTHORIZES A UNION TO PRESCRIBE ITS OWN RULES WITH RESPECT TO THE
RETENTION OF MEMBERSHIP.  THE COURT FIRST ASSUMES THAT THE PROVISO
PROTECTS THE UNION'S RIGHT TO EXPEL MEMBERS FOR THE EXPRESS PURPOSE OF
DISCOURAGING THEM FROM GOING TO WORK.  FROM THAT ASSUMPTION THE COURT
THEN SUGGESTS THAT "AT THE VERY LEAST ...  THE PROVISO PRESERVES THE
RIGHTS OF UNIONS TO IMPOSE FINES, AS A LESSER PENALTY THAN EXPULSION,
AND TO IMPOSE FINES WHICH CARRY THE  ...  THREAT OF EXPULSION FOR
NONPAYMENT."  AND FINALLY, DEPARTING A THIRD STEP FURTHER FROM THE
LITERAL LANGUAGE OF THE PROVISO, THE COURT ARRIVES AT ITS HOLDING THAT
CONGRESS COULD NOT HAVE MEANT TO PRECLUDE UNIONS FROM THE ALTERNATIVE
OF JUDICIALLY ENFORCING FINES.    CONTRARY TO THE COURT, I AM NOT AT
ALL CERTAIN THAT A UNION'S RIGHT UNDER THE PROVISO TO PRESCRIBE RULES
FOR THE RETENTION OF MEMBERSHIP INCLUDES THE RIGHT TO RESTRAIN A MEMBER
FROM WORKING BY TRYING HIM ON THE VAGUE CHARGE OF "CONDUCT UNBECOMING A
UNION MEMBER" AND FINING HIM FOR EXERCISING HIS SEC 7 RIGHT OF REFUSING
TO PARTICIPATE IN A STRIKE, EVEN THOUGH THE FINE IS ONLY ENFORCEABLE BY
EXPULSION FROM MEMBERSHIP.  IT IS ONE THING TO SAY THAT CONGRESS DID
NOT WISH TO INTERFERE WITH THE UNION'S POWER, SIMILAR TO THAT OF ANY
OTHER KIND OF VOLUNTARY ASSOCIATION, TO PRESCRIBE SPECIFIC CONDITIONS
OF MEMBERSHIP.  IT IS QUITE ANOTHER THING TO SAY THAT CONGRESS INTENDED
TO LEAVE UNIONS FREE TO EXERCISE A COURTLIKE POWER TO TRY AND PUNISH
MEMBERS WITH A DIRECT ECONOMIC SANCTION FOR EXERCISING THEIR RIGHT TO
WORK.  JUST BECAUSE A UNION MIGHT BE FREE, UNDER THE PROVISO, TO EXPEL
A MEMBER FOR CROSSING A PICKET LINE DOES NOT MEAN THAT CONGRESS LEFT
UNIONS FREE TO THREATEN THEIR MEMBERS WITH FINES.  EVEN THOUGH A MEMBER
MAY LATER DISCOVER THAT THE THREATENED FINE IS ONLY ENFORCEABLE BY
EXPULSION, AND IN THAT SENSE A "LESSER PENALTY," THE DIRECT THREAT OF A
FINE, TO A MEMBER NORMALLY UNAWARE OF THE METHOD THE UNION MIGHT RESORT
TO FOR COMPELLING ITS PAYMENT, WOULD OFTEN BE MORE COERCIVE THAN A
THREAT OF EXPULSION. 

EVEN ON THE ASSUMPTION THAT SEC 8(B)(1)(A) PERMITS A UNION TO FINE A
MEMBER AS LONG AS THE FINE IS ONLY ENFORCEABLE BY EXPULSION, THE
FUNDAMENTAL ERROR OF THE COURT'S OPINION IS ITS FAILURE TO RECOGNIZE
THE PRACTICAL AND THEORETICAL DIFFERENCE BETWEEN A COURT-ENFORCED FINE,
AS HERE, AND A FINE ENFORCED BY EXPULSION OR LESS DRASTIC INTRA-UNION
MEANS.  (FN2)  AS THE COURT RECOGNIZES, EXPULSION FOR NONPAYMENT OF A
FINE MAY, ESPECIALLY IN THE CASE OF A STRONG UNION, BE MORE SEVERE THAN
JUDICIAL COLLECTION OF THE FINE.  BUT, IF THE UNION MEMBERSHIP HAS
LITTLE VALUE AND IF THE FINE IS GREAT, THEN COURT-ENFORCEMENT OF THE
FINE MAY BE MORE EFFECTIVE PUNISHMENT, AND THAT IS PRECISELY WHY THE
COURT DESIRES TO PROVIDE WEAK UNIONS WITH THIS ALTERNATIVE TO
EXPULSION, AN ALTERNATIVE WHICH IS SIMILAR TO A CRIMINAL COURT'S POWER
TO IMPRISON DEFENDANTS WHO FAIL TO PAY FINES. 

IN THIS CASE, EACH STRIKEBREAKING EMPLOYEE WAS FINED FROM $20 TO
$100, AND THE UNION INITIATED A "TEST CASE" IN STATE COURT TO COLLECT
THE FINES.  IN NOTIFYING THE EMPLOYEES OF THE CHARGES AGAINST THEM,
HOWEVER, THE UNION WARNED THEM THAT EACH DAY THEY CROSSED THE PICKET
LINE AND WENT TO WORK MIGHT BE CONSIDERED A SEPARATE OFFENSE PUNISHABLE
BY A FINE OF $100.  IN SEVERAL OF THE CASES, THE STRIKES LASTED FOR
MANY MONTHS.  THUS, ALTHOUGH THE UNION HERE IMPOSED MINIMAL FINES FOR
THE PURPOSE OF ITS "TEST CASE," IT IS NOT TOO DIFFICULT TO IMAGINE A
CASE WHERE THE FINES WILL BE SO LARGE THAT THE THREAT OF THEIR
IMPOSITION WILL ABSOLUTELY RESTRAIN EMPLOYEES FROM GOING TO WORK DURING
A STRIKE.  ALTHOUGH AN EMPLOYEE MIGHT BE WILLING TO WORK EVEN IF IT
MEANT THE LOSS OF UNION MEMBERSHIP, HE WOULD HAVE TO BE WELL PAID
INDEED TO WORK AT THE RISK THAT HE WOULD HAVE TO PAY HIS UNION $100 A
DAY FOR EACH DAY WORKED.  OF COURSE, AS THE COURT SUGGESTS, HE MIGHT BE
ABLE TO DEFEAT THE UNION'S ATTEMPT AT JUDICIAL ENFORCEMENT OF THE FINE
BY SHOWING IT WAS "UNREASONABLE" OR THAT HE WAS NOT A "FULL MEMBER" OF
THE UNION, BUT FEW EMPLOYEES WOULD HAVE THE COURAGE OR THE FINANCIAL
MEANS TO BE WILLING TO TAKE THAT RISK.  CF.  EX PARTE YOUNG, 209 U.S.
123. 

THE COURT DISPOSES OF THIS TREMENDOUS PRACTICAL DIFFERENCE BETWEEN
COURT-ENFORCED AND UNION-ENFORCED FINES BY SUGGESTING THAT CONGRESS WAS
NOT CONCERNED WITH "THE PERMISSIBLE MEANS OF ENFORCEMENT OF UNION
FINES" AND THAT COURT-ENFORCEMENT OF FINES IS A NECESSARY CONSEQUENCE
OF THE "CONTRACT THEORY" OF THE UNION-MEMBER RELATIONSHIP.  AND THEN
THE COURT CAUTIONS THAT ITS HOLDING MAY ONLY APPLY TO COURT ENFORCEMENT
OF "REASONABLE FINES."  APPARENTLY THE COURT BELIEVES THAT THESE
CONSIDERATIONS SOMEHOW BRING REASONABLE COURT-ENFORCED FINES WITHIN THE
AMBIT OF "INTERNAL UNION AFFAIRS."  THERE IS NO BASIS EITHER
HISTORICALLY OR LOGICALLY FOR THIS CONCLUSION OR THE CONSIDERATIONS
UPON WHICH IT IS BASED.  FIRST, THE COURT SAYS THAT DISCIPLINARY FINES
WERE COMMONPLACE AT THE TIME THE TAFT-HARTLEY ACT WAS PASSED, AND THUS
CONGRESS COULD NOT HAVE MEANT TO PROHIBIT THESE "TRADITIONAL INTERNAL
UNION DISCIPLINE" MEASURES WITHOUT SAYING SO.  YET THERE IS NOT ONE
WORD IN THE AUTHORITIES CITED BY THE COURT THAT INDICATES THAT COURT
ENFORCEMENT OF FINES WAS COMMONPLACE OR TRADITIONAL IN 1947, AND, TO
THE CONTRARY, UNTIL RECENTLY UNIONS RARELY RESORTED TO COURT
ENFORCEMENT OF UNION FINES.  (FN3)  SECOND, CONGRESS' UNFAMILIARITY IN
1947 WITH THIS RECENT INNOVATION AND CONSEQUENT FAILURE TO MAKE ANY
DISTINCTION BETWEEN UNION-ENFORCED AND COURT-ENFORCED FINES CANNOT
SUPPORT THE CONCLUSION THAT CONGRESS WAS UNCONCERNED WITH THE "MEANS" A
UNION USES TO ENFORCE ITS FINES.  CONGRESS WAS EXPRESSLY CONCERNED WITH
ENACTING "RULES OF THE GAME" FOR UNIONS TO ABIDE BY.  93 CONG. REC.
4436, II LEG.  HIST.  1206.  AS NOTED BY THE LABOR BOARD THE YEAR AFTER
SEC 8(B)(1)(A) WAS PASSED, "IN THAT SECTION, CONGRESS WAS AIMING AT
MEANS, NOT AT ENDS."  PERRY NORVELL CO., 80 N.L.R.B. 225, 239.  AT THE
VERY LEAST CONGRESS INTENDED TO PRECLUDE A UNION'S USE OF CERTAIN MEANS
TO COLLECT FINES.  IT IS CLEAR, AS THE COURT RECOGNIZES, THAT CONGRESS
IN ENACTING SEC 8(B)(2) WAS CONCERNED WITH INSULATING AN EMPLOYEE'S JOB
FROM HIS UNION MEMBERSHIP.  IF THE UNION HERE HAD ATTEMPTED TO ENFORCE
THE PAYMENT OF THE FINES BY PERSUADING THE EMPLOYER TO DISCHARGE THE
NONPAYING EMPLOYEES OR TO WITHHOLD THE FINES FROM THEIR WAGES, IT WOULD
HAVE CLEARLY BEEN GUILTY OF AN UNFAIR LABOR PRACTICE UNDER SEC
8(B)(2).  (FN4)  IF THE UNION HERE, OPERATING UNDER A UNION SHOP
CONTRACT, HAD APPLIED THE EMPLOYEES' DUES TO THE SATISFACTION OF THE
FINES AND THEN CHARGED THEM EXTRA DUES, THAT, UNDER BOARD DECISIONS,
WOULD HAVE BEEN A VIOLATION OF SEC 8(B)(1)(A), SINCE IT WOULD HAVE
JEOPARDIZED THE EMPLOYEES' JOBS.  (FN5) YET HERE THE UNION HAS RESORTED
TO EQUALLY EFFECTIVE OUTSIDE ASSISTANCE TO ENFORCE THE PAYMENT OF ITS
FINES, AND THE COURT HOLDS THAT WITHIN THE AMBIT OF "INTERNAL UNION
DISCIPLINE."  I HAVE ALREADY POINTED TO THE IMPACT THAT $100 PER DAY
COURT-ENFORCED FINES MAY HAVE ON AN EMPLOYEE'S JOB - THEY WOULD TOTALLY
DISCOURAGE HIM FROM WORKING AT ALL - AND I FAIL TO SEE HOW COURT
ENFORCEMENT OF UNION FINES IS ANY MORE "INTERNAL" THAN EMPLOYER
ENFORCEMENT.  THE UNDENIABLE FACT IS THAT THE UNION RESORTS TO OUTSIDE
HELP WHEN IT IS NOT STRONG ENOUGH TO ENFORCE OBEDIENCE INTERNALLY.  AND
EVEN IF THE UNION DOES NOT RESORT TO OUTSIDE HELP BUT USES THREATS OF
PHYSICAL VIOLENCE BY ITS OFFICERS OR OTHER MEMBERS TO COMPEL PAYMENT OF
ITS FINES, I DO NOT DOUBT THAT THIS TOO WOULD BE A VIOLATION OF SEC
8(B)(1)(A). 

FINALLY, THE COURT ATTEMPTS TO JUSTIFY COURT-ENFORCEMENT OF FINES BY
COMPARING IT TO JUDICIAL ENFORCEMENT OF THE PROVISIONS OF AN ORDINARY
COMMERCIAL CONTRACT - A COMPARISON WHICH, ACCORDING TO THE COURT'S OWN
AUTHORITY, IS SIMPLY "A LEGAL FABRICATION."  (FN6) THE CONTRACTUAL
THEORY OF UNION MEMBERSHIP, AT LEAST UNTIL RECENTLY, WAS A FICTION USED
BY THE COURTS TO JUSTIFY JUDICIAL INTERVENTION IN UNION AFFAIRS TO
PROTECT EMPLOYEES, NOT TO HELP UNIONS.  I CANNOT BELIEVE THAT CONGRESS
INTENDED THE EFFECTIVENESS OF SEC 8(B)(1)(A) TO BE IMPAIRED BY SUCH A
FICTION, (FN7) OR THAT IT WAS CONTENT TO RELY ON THE STATE COURTS' USE
OF THIS FICTION TO PROTECT MEMBERS FROM UNION COERCION.  (FN8)
PARTICULARLY IS THAT SO WHERE THE "CONTRACT" BETWEEN THE UNION AND THE
EMPLOYEE IS THE INVOLUNTARY PRODUCT OF A UNION SHOP.  ALTHOUGH THE
COURT OF APPEALS HELD THAT TO BE THE CASE HERE, THE COURT TAKES THE
SURPRISING POSITION THAT "WHAT MOTIVATED" THE FULL UNION MEMBER TO MAKE
THE "CONTRACT" IS IMMATERIAL.  I DOUBT THAT EVEN AN ORDINARY COMMERCIAL
CONTRACT IS ENFORCEABLE AGAINST A PARTY WHO ENTERED INTO IT
INVOLUNTARILY.  BUT I AM CERTAIN THAT CONGRESS DID NOT INTEND TO
INSULATE UNION COERCION FROM THE LITERAL LANGUAGE OF SEC 8(B)(1)(A)
MERELY BECAUSE THE UNION HAS SECURED A "FULL" BUT INVOLUNTARY CONTRACT
FROM THOSE IT DESIRES TO COERCE. 

                                 III. 

WHILE THE COURT MAY BE CORRECT IN SAYING THAT RESORT TO LEGISLATIVE
HISTORY IS PROPER HERE, IT IS CERTAINLY NOT JUSTIFIED IN IGNORING THE
PLAIN MEANING OF SEC 8(B)(1)(A) ON THE BASIS OF THE INCONCLUSIVE
LEGISLATIVE HISTORY IT POINTS TO.  IN THE FIRST PLACE, "WHAT
LEGISLATIVE MATERIALS THERE ARE DEALING WITH SEC 8(B)(1)(A)" ARE ONLY
THE REMARKS OF A FEW SENATORS DURING THE DEBATE ON THE FLOOR.  THE
COMMITTEE.  THERE WERE NO DEBATES ON THE SECTION IN THE HOUSE, THERE
WERE NO COMMITTEE REPORTS ON THE SECTION, AND DEBATE IN THE SENATE WAS
BRIEF.  IN THE SECOND PLACE, THOUGH THE COURT DEEMS THE WORDS "RESTRAIN
OR COERCE" TO BE "IMPRECISE," IT SOMEHOW IS WILLING TO ATTRIBUTE A
MAGICAL QUALITY OF CLARITY TO THE REFRAIN "INTERNAL AFFAIRS OF
UNIONS."  THE COURT IS THUS WILLING TO ATTRIBUTE MORE CERTAINTY AND
CAREFUL CONSIDERATION TO A REFRAIN USED BY SEVERAL SENATORS IN A HEATED
DEBATE IN RESPONSE TO CERTAIN CRITICISM THAN IT IS TO THE WORDS
REPEATEDLY USED IN THE ACT ITSELF. 

THE REPEATED REFRAIN OF THE DEBATES ON SEC 8(B)(1)(A) WAS ACTUALLY
THAT IT WAS AIMED TO SECURE "EQUALITY  ...  BETWEEN EMPLOYERS AND
EMPLOYEES."  (FN9)  OVER AND OVER AGAIN, SENATOR TAFT AND OTHERS
EMPHASIZED THAT IF A UNION INDULGES IN CONDUCT THAT WOULD BE AN UNFAIR
LABOR PRACTICE ON THE PART OF AN EMPLOYER, IT TOO SHOULD BE GUILTY OF
AN UNFAIR LABOR PRACTICE.  (FN10)  ALTHOUGH THE COURT DEEMS "THIS
PARALLEL  ...  CLEARLY  ...  INAPPLICABLE TO THE RELATIONSHIP OF A
UNION MEMBER TO HIS OWN UNION," IT IS CLEAR THAT THE SPONSORS OF SEC
8(B)(1)(A) DID NOT THINK SO.  SEVERAL TIMES, SENATOR PEPPER TRIED TO
PERSUADE SENATOR TAFT THAT THERE WAS A DIFFERENCE BETWEEN AN EMPLOYEE'S
RELATION TO HIS EMPLOYER AND HIS RELATION TO HIS UNION.  ON EACH
OCCASION, SENATOR TAFT REPLIED, "I CANNOT SEE ANY DIFFERENCE."  93
CONG. REC. 4022, II LEG.  HIST.  1026, 1027.  WHEN SENATOR PEPPER ASKED
WHETHER THE WORDS "RESTRAIN OR COERCE" MIGHT HAVE A DIFFERENT
APPLICATION TO UNIONS THAN TO EMPLOYERS, SENATOR TAFT REPLIED: 

"THE BOARD HAS BEEN DEFINING THOSE WORDS FOR 12 YEARS, EVER SINCE IT
(THE ACT) CAME INTO EXISTENCE.  ITS APPLICATION TO LABOR ORGANIZATIONS
MAY HAVE A SLIGHTLY DIFFERENT IMPLICATION, BUT IT SEEMS TO ME PERFECTLY
CLEAR THAT FROM THE POINT OF VIEW OF THE EMPLOYEE THE TWO CASES ARE
PARALLEL ...  .  IF THERE IS ANYTHING CLEAR IN THE DEVELOPMENT OF LABOR
UNION HISTORY IN THE PAST 10 YEARS IT IS THAT MORE AND MORE LABOR UNION
EMPLOYEES HAVE COME TO BE SUBJECT TO THE ORDERS OF LABOR UNION
LEADERS.  THE BILL PROVIDES FOR THE RIGHT OF PROTEST AGAINST ARBITRARY
POWERS WHICH HAVE BEEN EXERCISED BY SOME OF THE LABOR UNION LEADERS. 
CERTAINLY IT SEEMS TO ME THAT IF WE ARE WILLING TO ACCEPT THE PRINCIPLE
THAT EMPLOYEES ARE ENTITLED TO THE SAME PROTECTION AGAINST LABOR UNION
LEADERS AS AGAINST EMPLOYERS, THEN I CAN SEE NO REASONABLE OBJECTION TO
THE AMENDMENT  ...  ."  93 CONG. REC. 4023, II LEG.  HIST.  1028.

WHEN SENATOR PEPPER REPLIED THAT SENATOR TAFT WAS OVERLOOKING "THE
FACT THAT THE WORKERS ELECT THEIR OWN OFFICERS, WHEREAS THEY DO NOT
ELECT THEIR EMPLOYERS" - PRECISELY THE FACT THAT THE COURT POINTS TO IN
FINDING THE PARALLEL BETWEEN UNIONS AND EMPLOYERS INAPPLICABLE -
SENATOR TAFT REPLIED: 

"I THINK IT IS FAIR TO SAY THAT IN THE CASE OF MANY OF THE UNIONS,
THE EMPLOYEE HAS A GOOD DEAL MORE OF AN OPPORTUNITY TO SELECT HIS
EMPLOYER THAN HE HAS TO SELECT HIS LABOR-UNION LEADER; AND EVEN IF HE
HAS THAT OPPORTUNITY  ...  THE MAN WHO IS ELECTED MAY HAVE BEEN VOTED
AGAINST BY VARIOUS OF THE EMPLOYEES WHO DID NOT DESIRE TO HAVE THAT
PARTICULAR MAN ELECTED AS THE UNION LEADER.  IN SUCH CASES THE VERY
FACT THAT THEY DID VOTE AGAINST THAT MAN IS OFTEN USED LATER BY THE
UNION AS A MEANS OF COERCING SUCH EMPLOYEES, AND IN SOME CASES THE
UNION EXPELS THEM FROM THE UNION OR SUBJECTS THEM TO TREATMENT WHICH
INTERFERES WITH THEIR RIGHTS AS AMERICAN CITIZENS."  93 CONG. REC.
4023, II LEG.  HIST. 1028. 

AND FINALLY, WHEN SENATOR PEPPER CHARGED THAT THE "AMENDMENT IS AN
EFFORT TO PROTECT THE WORKERS AGAINST THEIR OWN LEADERS," SENATOR TAFT
DID NOT DENY IT.  (FN11)  HE CLEARLY STATED THAT THE BILL WAS DESIGNED
TO WARN UNIONS "THAT THEY DO NOT HAVE THE RIGHT TO INTERFERE WITH OR
COERCE EMPLOYEES, EITHER THEIR OWN MEMBERS OR THOSE OUTSIDE THEIR
UNION."  93 CONG. REC. 4025, II LEG.  HIST.  1032. 

IT IS TRUE THAT THE SENATE SPONSORS OF SEC 8(B)(1)(A) WERE PRIMARILY
CONCERNED WITH COERCIVE ORGANIZATIONAL TACTICS OF UNIONS AND THAT MOST
OF THE EXAMPLES OF ABUSE REFERRED TO IN THE DEBATES CONCERNED THREATS
OF VIOLENCE BY UNIONS AGAINST NONMEMBER EMPLOYEES.  BUT TO SAY THAT SEC
8(B)(1)(A) COVERS ONLY COERCIVE ORGANIZATIONAL TACTICS, WHICH THE COURT
COMES VERY CLOSE TO DOING, IS TO IGNORE MUCH OF THE LEGISLATIVE
HISTORY.  IT IS CLEAR THAT SEC 8(B)(1)(A) WAS INTENDED TO PROTECT UNION
AS WELL AS NONUNION EMPLOYEES FROM COERCIVE TACTICS OF UNIONS, AND SUCH
PROTECTION WOULD HARDLY BE PROVIDED IF THE SECTION APPLIED ONLY TO
ORGANIZATIONAL TACTICS.  ALSO, IT IS CLEAR THAT CONGRESS WAS MUCH MORE
CONCERNED WITH NONVIOLENT ECONOMIC COERCION THAN WITH THREATS OF
PHYSICAL VIOLENCE.  AS SENATOR BALL, WHO INTRODUCED THE SECTION, PUT
IT:  "BUT WE ARE LESS CONCERNED HERE WITH ACTUAL ACTS OF VIOLENCE THAN
WE ARE WITH THREATS  ...  ."  (FN12)  AND SENATOR TAFT NOTED:  "THERE
ARE PLENTY OF METHODS OF COERCION SHORT OF ACTUAL PHYSICAL VIOLENCE." 
(FN13)  EXAMPLES WERE GIVEN OF CASES WHERE UNIONS THREATENED TO DOUBLE
THE DUES OF EMPLOYEES WHO WAITED UNTIL LATER TO JOIN.  (FN14)  IT IS
DIFFICULT TO SEE HOW FINING A MEMBER IS LESS COERCIVE THAN DOUBLING HIS
DUES, OR HOW THE ONE IS "WITHIN THE AMBIT OF INTERNAL UNION AFFAIRS"
AND THE OTHER IS NOT.  AFTER THE BILL WAS PASSED, IN COMMENTING ON SOME
OF THE ABUSES IT WAS DESIGNED TO CORRECT, SENATOR WILEY SAID THERE ARE
"INSTANCES IN WHICH UNIONS  ...  HAVE IMPOSED FINES UPON THEIR MEMBERS
UP TO $20,000 BECAUSE THEY CROSSED PICKET LINES - DARED TO GO TO THE
PLACE OF EMPLOYMENT."  (FN15)  TWICE DURING THE DEBATE, SENATOR TAFT
EMPHATICALLY STATED THAT THE SECTION GUARANTEES EMPLOYEES WHO WISHED TO
WORK DURING A STRIKE THE RIGHT TO DO SO.  (FN16)  THOUGH ON NEITHER
OCCASION DID HE EXPRESSLY LIMIT HIS EXAMPLES TO ORGANIZATIONAL STRIKES,
THE COURT READS THEM AS HAVING SUCH A LIMITED REFERENCE.  (FN17)  ONCE
AGAIN THE COURT UTILIZES AMBIGUOUS, EXTEMPORANEOUS LEGISLATIVE COMMENTS
TO CIRCUMVENT THE UNAMBIGUOUS LANGUAGE OF A CAREFULLY DRAFTED STATUTE. 
CONGRESS CERTAINLY KNEW HOW TO LIMIT EXPRESSLY THE APPLICABILITY OF THE

THE COURT FINDS THE STRONGEST SUPPORT FOR ITS POSITION IN STATEMENTS
OF SENATOR BALL WHEN HE ACCEPTED THE PROVISO PROPOSED BY SENATOR
HOLLAND.  WHEN SENATOR HOLLAND OBSERVED, "APPARENTLY IT IS NOT INTENDED
BY THE SPONSORS OF THE AMENDMENT TO AFFECT AT LEAST THAT PART OF THE
INTERNAL ADMINISTRATION WHICH HAS TO DO WITH THE ADMISSION OR THE
EXPULSION OF MEMBERS," (FN19) SENATOR BALL REPLIED, "IT WAS NEVER THE
INTENTION OF THE SPONSORS OF THE PENDING AMENDMENT TO INTERFERE WITH
THE INTERNAL AFFAIRS OR ORGANIZATION OF UNIONS."  (FN20)  FROM THIS
STATEMENT BY SENATOR BALL ACCEPTING THE PROVISO THE COURT UNJUSTIFIABLY
IMPLIES AN INTENT TO BROADEN IT.  FIRST, THERE IS NO REASON TO SUPPOSE
THAT SENATOR BALL WAS REFERRING TO ANY "PART" OF INTERNAL AFFAIRS OTHER
THAN THAT TO WHICH SENATOR HOLLAND HAD REFERRED.  SECOND, THE SPONSORS
OF THE SECTION REPEATEDLY ANNOUNCED THAT IT WOULD PROTECT UNION MEMBERS
FROM THEIR LEADERS, AND THAT PROTECTION WOULD BE IMPOSSIBLE IF THE
UNIONS.  AS SENATOR WILEY SAID, "NONE OF THESE PROVISIONS INTERFERES
UNDULY WITH UNION AFFAIRS, EXCEPT TO THE EXTENT NECESSARY TO PROTECT
THE INDIVIDUAL RIGHTS OF EMPLOYEES."  (FN21)  THIRD, THE COURT
RECOGNIZES - WITHOUT HOLDING - THAT THE SECTION MAY PROTECT UNION
MEMBERS FROM "ARBITRARY" ACTION OF UNION LEADERS.  HOWEVER, IT IS
DIFFICULT TO UNDERSTAND HOW THE ARBITRARINESS OR NONARBITRARINESS OF A
FINE DETERMINES WHETHER IT IS WITHIN THE SCOPE OF "INTERNAL UNION
AFFAIRS."  (FN22) 

WHAT THE COURT DOES TODAY IS TO WRITE A NEW PROVISO TO SEC
8(B)(1)(A):  "THIS PARAGRAPH SHALL NOT IMPAIR THE RIGHT OF A LABOR
ORGANIZATION NONARBITRARILY TO RESTRAIN OR COERCE ITS MEMBERS IN THEIR
EXERCISE OF SEC 7 RIGHTS."  NOTHING IN THE LEGISLATIVE HISTORY SUPPORTS
THE CREATION OF THIS NEW PROVISO. 

                                 IV. 

THE COURT SEEKS FURTHER SUPPORT FOR ITS HOLDING BY REFERENCE TO THE
FACT THAT THE 1959 LANDRUM-GRIFFIN AMENDMENTS WERE "THOUGHT TO BE THE
FIRST COMPREHENSIVE REGULATION BY CONGRESS OF THE CONDUCT OF INTERNAL
UNION AFFAIRS."  AND THE COURT THINKS THAT TO CONSTRUE SEC 8(B)(1)(A)
ACCORDING TO ITS LITERAL LANGUAGE TO PROHIBIT FINES "IS TO SAY THAT
CONGRESS PRECEDED THE LANDRUM-GRIFFIN AMENDMENTS WITH AN EVEN MORE
PERVASIVE REGULATION OF THE INTERNAL AFFAIRS OF UNIONS."  (FN23)  BUT
AGAIN THE COURT FAILS TO DISTINGUISH BETWEEN COURT-ENFORCED FINES AND
FINES ENFORCED BY THE TRADITIONAL METHOD OF EXPULSION.  ALTHOUGH BOTH
KINDS OF FINES ARE COERCIVE, I HAVE ALREADY INDICATED THAT THE PROVISO
TO SEC 8(B)(1)(A) MAY PRESERVE THE UNION'S RIGHT TO IMPOSE FINES WHICH
ARE ENFORCEABLE ONLY BY EXPULSION AND THAT EXPULSION WAS THE COMMON
MODE OF ENFORCING FINES AT THE TIME THE SECTION WAS ADOPTED.  IF ONE
ASSUMES THAT THE ONLY FINES PROHIBITED BY THE SECTION ARE COURT
ENFORCED FINES, THEN THE SECTION WAS NOT A PERVASIVE REGULATION OF
UNION INTERNAL AFFAIRS.  IF COURT ENFORCEMENT OF FINES IS WITHIN THE
AMBIT OF INTERNAL UNION AFFAIRS, WHICH I DOUBT, THEN THOSE AFFAIRS WERE
ONLY INCIDENTALLY REGULATED BY A FLAT PROHIBITION OF THIS SELDOM-USED
METHOD OF UNION DISCIPLINE.  IF THE COMMON FORMS OF UNION DISCIPLINE -
EXPULSION AND FINES ENFORCEABLE BY EXPULSION - WERE NOT PROHIBITED OR
REGULATED BY TAFT-HARTLEY, THEN LANDRUM-GRIFFIN WAS INDEED THE FIRST
COMPREHENSIVE REGULATION OF THEM. 

                V. 

THE UNION HERE HAD A UNION SECURITY CLAUSE IN ITS CONTRACT WITH ALLIS
CHALMERS.  THAT CLAUSE MADE IT NECESSARY FOR ALL EMPLOYEES, INCLUDING
THE ONES INVOLVED HERE, TO PAY DUES AND FEES TO THE UNION.   BUT SEC
8(A)(3) AND SEC 8(B)(2) MAKE IT CLEAR THAT "CONGRESS INTENDED TO
PREVENT UTILIZATION OF UNION SECURITY AGREEMENTS FOR ANY PURPOSE OTHER
THAN TO COMPEL PAYMENT OF UNION DUES AND FEES."  RADIO OFFICERS' UNION
V. LABOR BOARD, 347 U.S. 17, 41.  IF THE UNION USES THE UNION SECURITY
CLAUSE TO COMPEL EMPLOYEES TO PAY DUES, CHARACTERIZES SUCH EMPLOYEES AS
MEMBERS, AND THEN USES SUCH MEMBERSHIP AS A BASIS FOR IMPOSING COURT
ENFORCED FINES UPON THOSE EMPLOYEES UNWILLING TO PARTICIPATE IN A UNION
STRIKE, THEN THE UNION SECURITY CLAUSE IS BEING USED FOR A PURPOSE
OTHER THAN "TO COMPEL PAYMENT OF UNION DUES AND FEES."  IT IS BEING
USED TO COERCE EMPLOYEES TO JOIN IN UNION ACTIVITY IN VIOLATION OF SEC
8(B)(2). 

THE COURT SUGGESTS THAT THIS PROBLEM IS NOT PRESENT HERE, BECAUSE THE
FINED EMPLOYEES FAILED TO PROVE THEY ENJOYED OTHER THAN FULL UNION
MEMBERSHIP, THAT THEIR ROLE IN THE UNION WAS NOT IN FACT LIMITED TO THE
OBLIGATION OF PAYING DUES.  FOR SEVERAL REASONS, I AM UNABLE TO AGREE
WITH THE COURT'S APPROACH.  FEW EMPLOYEES FORCED TO BECOME "MEMBERS" OF
THE UNION BY VIRTUE OF THE UNION SECURITY CLAUSE WILL BE AWARE OF THE
FACT THAT THEY MUST SOMEHOW "LIMIT" THEIR MEMBERSHIP TO AVOID THE
UNION'S COURT-ENFORCED FINES.  EVEN THOSE WHO ARE BRASH ENOUGH TO
ATTEMPT TO DO SO MAY BE UNFAMILIAR WITH HOW TO DO IT.  MUST THEY
REFRAIN FROM DOING ANYTHING BUT PAYING DUES, OR WILL SIGNING THE
ROUTINE UNION PLEDGE STILL LEAVE THEM WITH LESS THAN FULL MEMBERSHIP? 
AND FINALLY, IT IS CLEAR THAT WHAT RESTRAINS THE EMPLOYEE FROM GOING TO
WORK DURING A UNION STRIKE IS THE UNION'S THREAT THAT IT WILL FINE HIM
AND COLLECT THE FINE FROM HIM IN COURT.  HOW MANY EMPLOYEES IN A UNION
SHOP WHOSE NAMES APPEAR ON THE UNION'S MEMBERSHIP ROLLS WILL BE WILLING
TO IGNORE THAT THREAT IN THE HOPE THAT THEY WILL LATER BE ABLE TO
CONVINCE THE LABOR BOARD OR THE STATE COURT THAT THEY WERE NOT FULL
MEMBERS OF THE UNION?  BY REFUSING TO DECIDE WHETHER SEC 8(B)(1)(A)
PROHIBITS THE UNION FROM FINING AN EMPLOYEE WHO DOES NOTHING MORE THAN
PAY UNION DUES AS A CONDITION TO RETAINING HIS JOB IN A UNION SHOP, THE
COURT ADDS COERCIVE IMPETUS TO THE UNION'S THREAT OF FINES.  TODAY'S
DECISION MAKES IT HIGHLY DANGEROUS FOR AN EMPLOYEE IN A UNION SHOP TO
EXERCISE HIS SEC 7 RIGHT TO REFRAIN FROM PARTICIPATING IN A STRIKE
CALLED BY A UNION IN WHICH HE IS A MEMBER IN NAME ONLY. 

                                 VI. 

THE NATIONAL LABOR RELATIONS ACT, AS ORIGINALLY PASSED AND AMENDED
FROM TIME TO TIME, IS THE WORK PRODUCT OF DRAFTSMEN SKILLED BY LONG
EXPERIENCE IN LABOR AFFAIRS.  THESE DRAFTSMEN THOROUGHLY UNDERSTOOD
LABOR LEGISLATION TERMINOLOGY, ESPECIALLY THE OFT-USED WORDS "RESTRAIN
OR COERCE."  SECTIONS 7 AND 8 TOGETHER BESPEAK A STRONG PURPOSE OF
CONGRESS TO LEAVE WORKERS WHOLLY FREE TO DETERMINE IN WHAT CONCERTED
LABOR ACTIVITIES THEY WILL ENGAGE OR DECLINE TO ENGAGE.  THIS FREEDOM
OF WORKERS TO GO THEIR OWN WAY IN THIS FIELD, COMPLETELY UNHAMPERED BY
PRESSURES OF EMPLOYERS OR UNIONS, IS AND ALWAYS HAS BEEN A BASIC
PURPOSE OF THE LABOR LEGISLATION NOW UNDER CONSIDERATION.  IN MY
JUDGMENT IT ILL BEHOOVES THIS COURT TO STRIKE SO DILIGENTLY TO DEFEAT
THIS UNEQUIVOCALLY DECLARED PURPOSE OF CONGRESS, MERELY BECAUSE THE
COURT BELIEVES THAT TOO MUCH FREEDOM OF CHOICE FOR WORKERS WILL IMPAIR
THE EFFECTIVE POWER OF UNIONS.  CF. VACA V. SIPES, 386 U.S. 171, 203
(DISSENTING OPINION).  A COURT-ENFORCED FINE IS CERTAINLY COERCIVE,
CERTAINLY AFFECTS THE EMPLOYEE'S JOB, AND CERTAINLY IS NOT A
TRADITIONAL METHOD OF INTERNAL UNION DISCIPLINE.  WHEN APPLIED BY A
UNION TO AN EMPLOYEE WHO HAS JOINED IT AS A CONDITION OF OBTAINING
EMPLOYMENT IN A UNION SHOP, IT DEFEATS THE PROVISIONS OF THE ACT
DESIGNED TO PREVENT UNION SECURITY CLAUSES FROM BEING USED FOR PURPOSES
OTHER THAN TO COMPEL PAYMENT OF DUES.  IN SUCH A SITUATION IT CANNOT BE
JUSTIFIED ON ANY THEORY THAT THE EMPLOYEE HAS CONTRACTED AWAY OR WAIVED
HIS SEC 7 RIGHTS. 

WHERE THERE IS CLEAR LEGISLATIVE HISTORY TO JUSTIFY IT, COURTS OFTEN
DECLINE TO FOLLOW THE LITERAL MEANING OF A STATUTE.  BUT THIS PRACTICE
IS FRAUGHT WITH DANGERS WHEN THE LEGISLATIVE HISTORY IS AT BEST BRIEF,
INCONCLUSIVE, AND AMBIGUOUS.  THIS IS PRECISELY SUCH A CASE, AND I
DISSENT BECAUSE I AM CONVINCED THAT THE COURT HAS IGNORED THE LITERAL
LANGUAGE OF SEC 8(B)(1)(A) IN ORDER TO GIVE UNIONS A POWER WHICH THE
COURT, BUT NOT CONGRESS, THINKS THEY NEED. 

FN1  THOSE MEMBERS OF THE SENATE WHO OPPOSED SEC 8(B)(1)(A) SHARED
THE COURT'S CONCERN THAT IT WOULD IMPAIR THE EFFECTIVENESS OF STRIKES. 
TO THAT CONCERN, SENATOR TAFT REPLIED: 

"I CAN SEE NOTHING IN THE PENDING MEASURE WHICH  ...  WOULD IN SOME
WAY OUTLAW STRIKES.  IT WOULD OUTLAW THREATS AGAINST EMPLOYEES.  IT
WOULD NOT OUTLAW ANYBODY STRIKING WHO WANTED TO STRIKE.  IT WOULD NOT
PREVENT ANYONE USING THE STRIKE IN A LEGITIMATE WAY  ...  .  ALL IT
WOULD DO WOULD BE TO OUTLAW SUCH RESTRAINT AND COERCION AS WOULD
PREVENT PEOPLE FROM GOING TO WORK IF THEY WISHED TO GO TO WORK."  93
CONG. REC. 4436, II LEG.  HIST.  1207. 

FN2  SEE GENERALLY COMMENT, 115 U. PA. L. REV. 47 (1966); 80 HARV. L.
REV. 683 (1967). 

FN3  THESE AUTHORITIES ARE CITED AT N. 9 OF THE COURT'S OPINION.  ONE
OF THEM NOTES THAT THE UNION'S "DISCIPLINE POWER HAS ITS OWN PRACTICAL
LIMITATIONS" SIMPLY BECAUSE THE UNION'S ULTIMATE SANCTION AT THAT TIME
WAS LIMITED TO EXPULSION.  SUMMERS, DISCIPLINARY POWERS OF UNIONS, 3
IND. & LAB.  REL.  REV. 483, 487 (1950).  THAT PRACTICAL LIMITATION IS
TODAY REMOVED BY THE COURT'S HOLDING. 

FN4  SEE, E.G., NLRB V. BELL AIRCRAFT CORP., 206 F.2D 235 (COLLECTIVE
BARGAINING AGREEMENT BETWEEN EMPLOYER AND UNION PROVIDED THAT EMPLOYER
COULD NOT PROMOTE EMPLOYEE WHO HAD DISCIPLINARY CHARGES PENDING AGAINST
HIM BY UNION). 

FN5  SEE, E.G., ASSOCIATED HOME BUILDERS OF GREATER GREEN BAY, 145
N.L.R.B. 1775, REMANDED ON OTHER GROUNDS, 352 F.2D 745. 

FN6 "THE CONTRACT OF MEMBERSHIP IS  ...  A LEGAL FABRICATION  ... .
WHAT ARE THE TERMS OF THE CONTRACT?  THE CONSTITUTIONAL PROVISIONS,
PARTICULARLY THOSE GOVERNING DISCIPLINE, ARE SO NOTORIOUSLY VAGUE THAT
THEY FALL FAR SHORT OF THE CERTAINTY ORDINARILY REQUIRED OF A
CONTRACT.  THE MEMBER HAS NO CHOICE AS TO TERMS BUT IS COMPELLED TO
ADHERE TO THE INFLEXIBLE ONES PRESENTED.  EVEN THEN, THE UNION IS NOT
BOUND, FOR IT RETAINS THE UNLIMITED POWER TO AMEND ANY TERM AT ANY TIME
... .  IN SHORT, MEMBERSHIP IS A SPECIAL RELATIONSHIP.  IT IS AS FAR
REMOVED FROM THE MAIN CHANNEL OF CONTRACT LAW AS THE RELATIONSHIPS
CREATED BY MARRIAGE  ...  ."  SUMMERS, LEGAL LIMITATIONS ON UNION
DISCIPLINE, 64 HARV. L. REV. 1049, 1055-1056 (1951). 

FN7  ALTHOUGH THE COURT STATES THAT CONGRESS WAS OPERATING WITHIN THE
CONTEXT OF THE "CONTRACT THEORY," I HAVE BEEN UNABLE TO FIND ANY
REFERENCE TO THIS THEORY IN THE LEGISLATIVE HISTORY, EVEN BY THE
OPPONENTS TO CURTAILING UNION POWER.  WHEN SENATOR PEPPER SUGGESTED
THAT THE SECTION SHOULD NOT APPLY TO UNION MEMBERS BECAUSE THEY ELECT
THEIR OWN LEADERS, SENATOR TAFT REJECTED THAT PREMISE AS A FREQUENT
FICTION.  SEE P. 210, INFRA. 

FN8  CONGRESS WAS, INDEED, PRIMARILY CONCERNED WITH THE KIND OF
COERCION STATE COURTS WERE UNABLE TO COPE WITH.  93 CONG. REC. 4016,
4024, II LEG.  HIST.  1018, 1031. 

FN9  93 CONG. REC. 4021, II LEG.  HIST.  1025.  SEE GENERALLY 93
CONG. REC. 4432-4436, II LEG.  HIST.  1199-1207. 

FN10  93 CONG. REC. 4016, II LEG.  HIST.  1018; 93 CONG. REC. 4021,
II LEG.  HIST.  1025; 93 CONG. REC. 4023, II LEG.  HIST.  1028. 

FN11  93 CONG. REC. 4023, II LEG.  HIST.  1029.  SENATOR TAFT MERELY
RESPONDED THAT THE SECTION PROTECTS NONUNION EMPLOYEES AS WELL AS UNION
MEMBERS. 

FN12  93 CONG. REC. 4017, II LEG.  HIST.  1020. 

FN13  93 CONG. REC. 4024, II LEG.  HIST.  1031. 

FN14  93 CONG. REC. 4017, II LEG.  HIST.  1020; 93 CONG. REC. 4433,
II LEG.  HIST.  1200. 

FN15  93 CONG. REC. 5000, II LEG.  HIST.  1471. 

FN16  SEE N. 1, SUPRA; STATEMENT BY SENATOR TAFT QUOTED IN N. 25 OF
THE COURT'S OPINION. 

FN17  SEE N. 25 OF THE COURT'S OPINION. 

FN18  SEE, E.G., SEC 8(B)(4)(B). 

FN19  93 CONG. REC. 4271, II LEG.  HIST.  1139. 

FN20  93 CONG. REC. 4272, II LEG.  HIST.  1141. 

FN21  93 CONG. REC. 5001, II LEG.  HIST.  1472. 

FN22  THE NLRB HAS ITSELF RECOGNIZED THAT A UNION "FINE IS BY NATURE
COERCIVE."  IN LOCAL 138, OPERATING ENGINEERS, 148 N.L.R.B. 679, AND H.
B. ROBERTS, BUSINESS MANAGER OF LOCAL 925, OPERATING ENGINEERS, 148
N.L.R.B. 674, ENFORCED, 121 U.S. APP. D.C. 297, 350 F.2D 427, THE BOARD
HELD SEC 8(B)(1)(A) PROHIBITED A UNION FROM FINING MEMBERS WHO VIOLATED
AN INTERNAL UNION RULE AGAINST FILING CHARGES WITH THE NLRB.  THE BOARD
CONCLUDED THAT "THE IMPOSITION OF A FINE BY A LABOR ORGANIZATION UPON A
MEMBER WHO FILES CHARGES WITH THE BOARD DOES RESTRAIN AND COERCE THAT
MEMBER IN THE EXERCISE OF HIS RIGHT TO FILE CHARGES.  THE UNION'S
CONDUCT IS NO LESS COERCIVE WHERE THE FILING OF THE CHARGE IS ALLEGED
TO BE IN CONFLICT WITH AN INTERNAL UNION RULE OR POLICY AND THE FINE IS
IMPOSED ALLEGEDLY TO ENFORCE THAT INTERNAL POLICY."  LOCAL 138, 148
N.L.R.B., AT 682.  IN THE PRESENT CASE, THE BOARD DISTINGUISHED LOCAL
138 AND ROBERTS ON THE GROUND THAT THE UNION RULES INVOLVED THERE WERE
"BEYOND THE COMPETENCE OF THE UNION TO ENFORCE" AND WERE "NOT THE
LEGITIMATE CONCERN OF A UNION."  149 N.L.R.B. 67, 69.  MY BROTHER WHITE
SEEMS TO TAKE A SIMILAR POSITION IN RESTING HIS CONCURRENCE ON THE
COURT'S HOLDING THAT THE UNION RULE AGAINST CROSSING A PICKET LINE IS
"VALID."  BUT NEITHER CONGRESS' AIM IN SEC 8(B)(1)(A) OF PROSCRIBING
CERTAIN MEANS USED TO ACCOMPLISH LEGITIMATE ENDS, NOR THE COURT'S VIEW
THAT CONGRESS INTENDED NO INTERFERENCE WITH INTERNAL UNION AFFAIRS,
WOULD ALLOW THE APPLICATION OF THE SECTION TO DEPEND ON THE BOARD'S OR
THIS COURT'S VIEWS OF WHETHER A PARTICULAR INTERNAL UNION RULE IS
"VALID" OR NOT.    FN23  ALTHOUGH THE LANDRUM-GRIFFIN ACT MIGHT BE
RESORTED TO FOR THE PURPOSE OF DETERMINING THE LIMITS OF "VAGUE
LANGUAGE" IN THE TAFT-HARTLEY ACT, IT SHOULD NOT BE USED, AS THE COURT
HERE USES IT, TO DEPRIVE EMPLOYEES OF RIGHTS UNEQUIVOCALLY GRANTED THEM
BY THE EARLIER ACT.  SECTION 103 OF THE LANDRUM-GRIFFIN ACT, 73 STAT.
523 (1959), 29 U.S.C. SEC 413, EXPRESSLY PROVIDES:  "NOTHING CONTAINED
IN THIS TITLE SHALL LIMIT THE RIGHTS AND REMEDIES OF ANY MEMBER OF A
LABOR ORGANIZATION UNDER ANY  ...  FEDERAL LAW  ...  ." 
..END :











UNITED STATES V. WADE 388 U.S. 218 


NO. 334.  ARGUED FEBRUARY 16, 1967.  - DECIDED JUNE 12, 1967.  - 358
F.2D 557, VACATED AND REMANDED. 


SEVERAL WEEKS AFTER RESPONDENT'S INDICTMENT FOR ROBBERY OF A FEDERALLY
INSURED BANK AND FOR CONSPIRACY, RESPONDENT, WITHOUT NOTICE TO HIS
APPOINTED COUNSEL, WAS PLACED IN A LINEUP IN WHICH EACH PERSON WORE
STRIPS OF TAPE ON HIS FACE, AS THE ROBBER ALLEGEDLY HAD DONE, AND ON
DIRECTION REPEATED WORDS LIKE THOSE THE ROBBER ALLEGEDLY HAD USED.  TWO
BANK EMPLOYEES IDENTIFIED RESPONDENT AS THE ROBBER.  AT THE TRIAL WHEN
ASKED IF THE ROBBER WAS IN THE COURTROOM, THEY IDENTIFIED RESPONDENT. 
THE PRIOR LINEUP IDENTIFICATIONS WERE ELICITED ON CROSS-EXAMINATION. 
URGING THAT THE CONDUCT OF THE LINEUP VIOLATED HIS FIFTH AMENDMENT
PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS SIXTH AMENDMENT RIGHT TO
COUNSEL, RESPONDENT FILED A MOTION FOR JUDGMENT OF ACQUITTAL OR,
ALTERNATIVELY, TO STRIKE THE COURTROOM IDENTIFICATIONS.  THE TRIAL
COURT DENIED THE MOTIONS AND RESPONDENT WAS CONVICTED.  THE COURT OF
APPEALS REVERSED, HOLDING THAT THOUGH THERE WAS NO FIFTH AMENDMENT
DEPRIVATION THE ABSENCE OF COUNSEL AT THE LINEUP DENIED RESPONDENT HIS
RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT AND REQUIRED THE GRANT OF A
NEW TRIAL AT WHICH THE IN-COURT IDENTIFICATIONS OF THOSE WHO HAD MADE
LINEUP IDENTIFICATIONS WOULD BE EXCLUDED.  HELD: 

1.  NEITHER THE LINEUP ITSELF NOR ANYTHING REQUIRED THEREIN VIOLATED
RESPONDENT'S FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION SINCE
MERELY EXHIBITING HIS PERSON FOR OBSERVATION BY WITNESSES AND USING HIS
VOICE AS AN IDENTIFYING PHYSICAL CHARACTERISTIC INVOLVED NO COMPULSION
OF THE ACCUSED TO GIVE EVIDENCE OF A TESTIMONIAL NATURE AGAINST HIMSELF
WHICH IS PROHIBITED BY THAT AMENDMENT.  PP. 221-223. 

2.  THE SIXTH AMENDMENT GUARANTEES AN ACCUSED THE RIGHT TO COUNSEL
NOT ONLY AT HIS TRIAL BUT AT ANY CRITICAL CONFRONTATION BY THE
PROSECUTION AT PRETRIAL PROCEEDINGS WHERE THE RESULTS MIGHT WELL
DETERMINE HIS FATE AND WHERE THE ABSENCE OF COUNSEL MIGHT DEROGATE FROM
HIS RIGHT TO A FAIR TRIAL.  PP. 223-227. 

3.  THE POST-INDICTMENT LINEUP (UNLIKE SUCH PREPARATORY STEPS AS
ANALYZING FINGERPRINTS AND BLOOD SAMPLES) WAS A CRITICAL PROSECUTIVE
STAGE AT WHICH RESPONDENT WAS ENTITLED TO THE AID OF COUNSEL.  PP. 227
239. 

(A)  THERE IS A GREAT POSSIBILITY OF UNFAIRNESS TO THE ACCUSED AT
THAT POINT, (1) BECAUSE OF THE MANNER IN WHICH CONFRONTATIONS FOR
IDENTIFICATION ARE FREQUENTLY CONDUCTED, (2) BECAUSE OF DANGERS
INHERENT IN EYEWITNESS IDENTIFICATION AND SUGGESTIBILITY INHERENT IN
THE CONTEXT OF THE CONFRONTATIONS, AND (3) BECAUSE OF THE LIKELIHOOD
THAT THE ACCUSED WILL OFTEN BE PRECLUDED FROM RECONSTRUCTING WHAT
OCCURRED AND THEREBY OBTAINING A FULL HEARING ON THE IDENTIFICATION
ISSUE AT TRIAL.  PP. 229-235. 

(B)  THIS CASE ILLUSTRATES THE POTENTIAL FOR IMPROPER INFLUENCE ON
WITNESSES THROUGH THE LINEUP PROCEDURE, SINCE THE BANK EMPLOYEES WERE
ALLOWED TO SEE RESPONDENT IN THE CUSTODY OF FBI AGENTS BEFORE THE
LINEUP BEGAN.  PP. 233-234. 

(C)  THE PRESENCE OF COUNSEL AT THE LINEUP WILL SIGNIFICANTLY PROMOTE
FAIRNESS AT THE CONFRONTATION AND A FULL HEARING AT TRIAL ON THE ISSUE
OF IDENTIFICATION.  PP. 236-238. 

4.  IN-COURT IDENTIFICATION BY A WITNESS TO WHOM THE ACCUSED WAS
EXHIBITED BEFORE TRIAL IN THE ABSENCE OF COUNSEL MUST BE EXCLUDED
UNLESS IT CAN BE ESTABLISHED THAT SUCH EVIDENCE HAD AN INDEPENDENT
ORIGIN OR THAT ERROR IN ITS ADMISSION WAS HARMLESS.  SINCE IT IS NOT
CLEAR THAT THE COURT OF APPEALS APPLIED THE PRESCRIBED RULE OF
EXCLUSION, AND SINCE THE NATURE OF THE IN-COURT INDENTIFICATIONS HERE
WAS NOT AN ISSUE IN THE TRIAL AND CANNOT BE DETERMINED ON THE RECORD,
THE CASE MUST BE REMANDED TO THE DISTRICT COURT FOR RESOLUTION OF THESE
ISSUES.  PP. 239-243. 

UNITED STATES V. WADE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER COURTROOM IDENTIFICATIONS OF AN ACCUSED
AT TRIAL ARE TO BE EXCLUDED FROM EVIDENCE BECAUSE THE ACCUSED WAS
EXHIBITED TO THE WITNESSES BEFORE TRIAL AT A POST-INDICTMENT LINEUP
CONDUCTED FOR IDENTIFICATION PURPOSES WITHOUT NOTICE TO AND IN THE
ABSENCE OF THE ACCUSED'S APPOINTED COUNSEL. 

THE FEDERALLY INSURED BANK IN EUSTACE, TEXAS, WAS ROBBED ON SEPTEMBER
21, 1964.  A MAN WITH A SMALL STRIP OF TAPE ON EACH SIDE OF HIS FACE
ENTERED THE BANK, POINTED A PISTOL AT THE FEMALE CASHIER AND THE VICE
PRESIDENT, THE ONLY PERSONS IN THE BANK AT THE TIME, AND FORCED THEM TO
FILL A PILLOWCASE WITH THE BANK'S MONEY.  THE MAN THEN DROVE AWAY WITH
AN ACCOMPLICE WHO HAD BEEN WAITING IN A STOLEN CAR OUTSIDE THE BANK. 
ON MARCH 23, 1965, AN INDICTMENT WAS RETURNED AGAINST RESPONDENT, WADE,
AND TWO OTHERS FOR CONSPIRING TO ROB THE BANK, AND AGAINST WADE AND THE
ACCOMPLICE FOR THE ROBBERY ITSELF.  WADE WAS ARRESTED ON APRIL 2, AND
COUNSEL WAS APPOINTED TO REPRESENT HIM ON APRIL 26.  FIFTEEN DAYS LATER
AN FBI AGENT, WITHOUT NOTICE TO WADE'S LAWYER, ARRANGED TO HAVE THE TWO
BANK EMPLOYEES OBSERVE A LINEUP MADE UP OF WADE AND FIVE OR SIX OTHER
PRISONERS AND CONDUCTED IN A COURTROOM OF THE LOCAL COUNTY COURTHOUSE. 
EACH PERSON IN THE LINE WORE STRIPS OF TAPE SUCH AS ALLEGEDLY WORN BY
THE ROBBER AND UPON DIRECTION EACH SAID SOMETHING LIKE "PUT THE MONEY
IN THE BAG," THE WORDS ALLEGEDLY UTTERED BY THE ROBBER.  BOTH BANK
EMPLOYEES IDENTIFIED WADE IN THE LINEUP AS THE BANK ROBBER. 

AT TRIAL, THE TWO EMPLOYEES, WHEN ASKED ON DIRECT EXAMINATION IF THE
ROBBER WAS IN THE COURTROOM, POINTED TO WADE.  THE PRIOR LINEUP
IDENTIFICATION WAS THEN ELICITED FROM BOTH EMPLOYEES ON CROSS
EXAMINATION.  AT THE CLOSE OF TESTIMONY, WADE'S COUNSEL MOVED FOR A
JUDGMENT OF ACQUITTAL OR, ALTERNATIVELY, TO STRIKE THE BANK OFFICIALS'
COURTROOM IDENTIFICATIONS ON THE GROUND THAT CONDUCT OF THE LINEUP,
WITHOUT NOTICE TO AND IN THE ABSENCE OF HIS APPOINTED COUNSEL, VIOLATED
HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS SIXTH
AMENDMENT RIGHT TO THE ASSISTANCE OF COUNSEL.  THE MOTION WAS DENIED,
AND WADE WAS CONVICTED.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
REVERSED THE CONVICTION AND ORDERED A NEW TRIAL AT WHICH THE IN-COURT
IDENTIFICATION EVIDENCE WAS TO BE EXCLUDED, HOLDING THAT, THOUGH THE
LINEUP DID NOT VIOLATE WADE'S FIFTH AMENDMENT RIGHTS, "THE LINEUP, HELD
AS IT WAS, IN THE ABSENCE OF COUNSEL, ALREADY CHOSEN TO REPRESENT
APPELLANT, WAS A VIOLATION OF HIS SIXTH AMENDMENT RIGHTS  ...  ."  358
F.2D 557, 560.  WE GRANTED CERTIORARI, 385 U.S. 811, AND SET THE CASE
FOR ORAL ARGUMENT WITH NO. 223, GILBERT V. CALIFORNIA, POST, P. 263,
AND NO. 254, STOVALL V. DENNO, POST, P. 293, WHICH PRESENT SIMILAR
QUESTIONS.  WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
TO THAT COURT WITH DIRECTION TO ENTER A NEW JUDGMENT VACATING THE
CONVICTION AND REMANDING THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

                                  I. 

NEITHER THE LINEUP ITSELF NOR ANYTHING SHOWN BY THIS RECORD THAT WADE
WAS REQUIRED TO DO IN THE LINEUP VIOLATED HIS PRIVILEGE AGAINST SELF
INCRIMINATION.  WE HAVE ONLY RECENTLY REAFFIRMED THAT THE PRIVILEGE
"PROTECTS AN ACCUSED ONLY FROM BEING COMPELLED TO TESTIFY AGAINST
HIMSELF, OR OTHERWISE PROVIDE THE STATE WITH EVIDENCE OF A TESTIMONIAL
OR COMMUNICATIVE NATURE  ...  ."  SCHMERBER V. CALIFORNIA, 384 U.S.
757, 761.  WE THERE HELD THAT COMPELLING A SUSPECT TO SUBMIT TO A
WITHDRAWAL OF A SAMPLE OF HIS BLOOD FOR ANALYSIS FOR ALCOHOL CONTENT
AND THE ADMISSION IN EVIDENCE OF THE ANALYSIS REPORT WERE NOT
COMPULSION TO THOSE ENDS.  THAT HOLDING WAS SUPPORTED BY THE OPINION IN
HOLT V. UNITED STATES, 218 U.S. 245, IN WHICH CASE A QUESTION AROSE AS
TO WHETHER A BLOUSE BELONGED TO THE DEFENDANT.  A WITNESS TESTIFIED AT
TRIAL THAT THE DEFENDANT PUT ON THE BLOUSE AND IT HAD FIT HIM.  THE
DEFENDANT ARGUED THAT THE ADMISSION OF THE TESTIMONY WAS ERROR BECAUSE
COMPELLING HIM TO PUT ON THE BLOUSE WAS A VIOLATION OF HIS PRIVILEGE. 
THE COURT REJECTED THE CLAIM AS "AN EXTRAVAGANT EXTENSION OF THE FIFTH
AMENDMENT," MR. JUSTICE HOLMES SAYING FOR THE COURT: 

"THE PROHIBITION OF COMPELLING A MAN IN A CRIMINAL COURT TO BE
WITNESS AGAINST HIMSELF IS A PROHIBITION OF THE USE OF PHYSICAL OR
MORAL COMPULSION TO EXTORT COMMUNICATIONS FROM HIM, NOT AN EXCLUSION OF
HIS BODY AS EVIDENCE WHEN IT MAY BE MATERIAL."  218 U.S., AT 252-253. 

THE COURT IN HOLT, HOWEVER, PUT ASIDE ANY CONSTITUTIONAL QUESTIONS
WHICH MIGHT BE INVOLVED IN COMPELLING AN ACCUSED, AS HERE, TO EXHIBIT
HIMSELF BEFORE VICTIMS OF OR WITNESSES TO AN ALLEGED CRIME; THE COURT
STATED, "WE NEED NOT CONSIDER HOW FAR A COURT WOULD GO IN COMPELLING A
MAN TO EXHIBIT HIMSELF."  ID., AT 253.  (FN1) 

WE HAVE NO DOUBT THAT COMPELLING THE ACCUSED MERELY TO EXHIBIT HIS
PERSON FOR OBSERVATION BY A PROSECUTION WITNESS PRIOR TO TRIAL INVOLVES
NO COMPULSION OF THE ACCUSED TO GIVE EVIDENCE HAVING TESTIMONIAL
SIGNIFICANCE.  IT IS COMPULSION OF THE ACCUSED TO EXHIBIT HIS PHYSICAL
CHARACTERISTICS, NOT COMPULSION TO DISCLOSE ANY KNOWLEDGE HE MIGHT
HAVE.  IT IS NO DIFFERENT FROM COMPELLING SCHMERBER TO PROVIDE A BLOOD
SAMPLE OR HOLT TO WEAR THE BLOUSE, AND, AS IN THOSE INSTANCES, IS NOT
WITHIN THE COVER OF THE PRIVILEGE.  SIMILARLY, COMPELLING WADE TO SPEAK
WITHIN HEARING DISTANCE OF THE WITNESSES, EVEN TO UTTER WORDS
PURPORTEDLY UTTERED BY THE ROBBER, WAS NOT COMPULSION TO UTTER
STATEMENTS OF A "TESTIMONIAL" NATURE; HE WAS REQUIRED TO USE HIS VOICE
AS AN IDENTIFYING PHYSICAL CHARACTERISTIC, NOT TO SPEAK HIS GUILT.  WE
HELD IN SCHMERBER, SUPRA, AT 761, THAT THE DISTINCTION TO BE DRAWN
UNDER THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION IS ONE
BETWEEN AN ACCUSED'S "COMMUNICATIONS" IN WHATEVER FORM, VOCAL OR
PHYSICAL, AND "COMPULSION WHICH MAKES A SUSPECT OR ACCUSED THE SOURCE
OF 'REAL OR PHYSICAL EVIDENCE,'" SCHMERBER, SUPRA, AT 764.  WE
RECOGNIZED THAT "BOTH FEDERAL AND STATE COURTS HAVE USUALLY HELD THAT
...  THE PRIVILEGE OFFERS NO PROTECTION AGAINST COMPULSION TO SUBMIT TO
FINGERPRINTING, PHOTOGRAPHY, OR MEASUREMENTS, TO WRITE OR SPEAK FOR
IDENTIFICATION, TO APPEAR IN COURT, TO STAND, TO ASSUME A STANCE, TO
WALK, OR TO MAKE A PARTICULAR GESTURE."  ID., AT 764.  NONE OF THESE
ACTIVITIES BECOMES TESTIMONIAL WITHIN THE SCOPE OF THE PRIVILEGE
BECAUSE REQUIRED OF THE ACCUSED IN A PRETRIAL LINEUP. 

MOREOVER, IT DESERVES EMPHASIS THAT THIS CASE PRESENTS NO QUESTION OF
THE ADMISSIBILITY IN EVIDENCE OF ANYTHING WADE SAID OR DID AT THE
LINEUP WHICH IMPLICATES HIS PRIVILEGE.  THE GOVERNMENT OFFERED NO SUCH
EVIDENCE AS PART OF ITS CASE, AND WHAT CAME OUT ABOUT THE LINEUP
PROCEEDINGS ON WADE'S CROSS-EXAMINATION OF THE BANK EMPLOYEES INVOLVED
NO VIOLATION OF WADE'S PRIVILEGE. 

                   II. 

THE FACT THAT THE LINEUP INVOLVED NO VIOLATION OF WADE'S PRIVILEGE
AGAINST SELF-INCRIMINATION DOES NOT, HOWEVER, DISPOSE OF HIS CONTENTION
THAT THE COURTROOM IDENTIFICATIONS SHOULD HAVE BEEN EXCLUDED BECAUSE
THE LINEUP WAS CONDUCTED WITHOUT NOTICE TO AND IN THE ABSENCE OF HIS
COUNSEL.  OUR REJECTION OF THE RIGHT TO COUNSEL CLAIM IN SCHMERBER
RESTED ON OUR CONCLUSION IN THAT CASE THAT "NO ISSUE OF COUNSEL'S
ABILITY TO ASSIST PETITIONER IN RESPECT OF ANY RIGHTS HE DID POSSESS IS
PRESENTED."  384 U.S., AT 766.  IN CONTRAST, IN THIS CASE IT IS URGED
THAT THE ASSISTANCE OF COUNSEL AT THE LINEUP WAS INDISPENSABLE TO
PROTECT WADE'S MOST BASIC RIGHT AS A CRIMINAL DEFENDANT - HIS RIGHT TO
A FAIR TRIAL AT WHICH THE WITNESSES AGAINST HIM MIGHT BE MEANINGFULLY
CROSS-EXAMINED. 

THE FRAMERS OF THE BILL OF RIGHTS ENVISAGED A BROADER ROLE FOR
COUNSEL THAN UNDER THE PRACTICE THEN PREVAILING IN ENGLAND OF MERELY
ADVISING HIS CLIENT IN "MATTERS OF LAW," AND ESCHEWING ANY
RESPONSIBILITY FOR "MATTERS OF FACT."  (FN2)  THE CONSTITUTIONS IN AT
LEAST 11 OF THE 13 STATES EXPRESSLY OR IMPLIEDLY ABOLISHED THIS
DISTINCTION.  POWELL V. ALABAMA, 287 U.S. 45, 60-65; NOTE, 73 YALE L.J.
1000, 1030-1033 (1964).  "THOUGH THE COLONIAL PROVISIONS ABOUT COUNSEL
WERE IN ACCORD ON FEW THINGS, THEY AGREED ON THE NECESSITY OF
ABOLISHING THE FACTS-LAW DISTINCTION; THE COLONISTS APPRECIATED THAT IF
A DEFENDANT WERE FORCED TO STAND ALONE AGAINST THE STATE, HIS CASE WAS
FORE-DOOMED."  73 YALE L.J., SUPRA, AT 1033-1034.  THIS BACKGROUND IS
REFLECTED IN THE SCOPE GIVEN BY OUR DECISIONS TO THE SIXTH AMENDMENT'S
GUARANTEE TO AN ACCUSED OF THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE. 
WHEN THE BILL OF RIGHTS WAS ADOPTED, THERE WERE NO ORGANIZED POLICE
FORCES AS WE KNOW THEM TODAY.  (FN3)  THE ACCUSED CONFRONTED THE
PROSECUTOR AND THE WITNESSES AGAINST HIM, AND THE EVIDENCE WAS
MARSHALLED, LARGELY AT THE TRIAL ITSELF.  IN CONTRAST, TODAY'S LAW
ENFORCEMENT MACHINERY INVOLVES CRITICAL CONFRONTATIONS OF THE ACCUSED
BY THE PROSECUTION AT PRETRIAL PROCEEDINGS WHERE THE RESULTS MIGHT WELL
SETTLE THE ACCUSED'S FATE AND REDUCE THE TRIAL ITSELF TO A MERE
FORMALITY.  IN RECOGNITION OF THESE REALITIES OF MODERN CRIMINAL
PROSECUTION, OUR CASES HAVE CONSTRUED THE SIXTH AMENDMENT GUARANTEE TO
APPLY TO "CRITICAL" STAGES OF THE PROCEEDINGS.  THE GUARANTEE READS:
"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT  ...
TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE."  THE PLAIN WORDING
OF THIS GUARANTEE THUS ENCOMPASSES COUNSEL'S ASSISTANCE WHENEVER
NECESSARY TO ASSURE A MEANINGFUL "DEFENCE." 

AS EARLY AS POWELL V. ALABAMA, SUPRA, WE RECOGNIZED THAT THE PERIOD
FROM ARRAIGNMENT TO TRIAL WAS "PERHAPS THE MOST CRITICAL PERIOD OF THE
PROCEEDINGS  ...  ," ID., AT 57, DURING WHICH THE ACCUSED "REQUIRES THE
GUIDING HAND OF COUNSEL  ...  ," ID., AT 69, IF THE GUARANTEE IS NOT TO
PROVE AN EMPTY RIGHT.  THAT PRINCIPLE HAS SINCE BEEN APPLIED TO REQUIRE
THE ASSISTANCE OF COUNSEL AT THE TYPE OF ARRAIGNMENT - FOR EXAMPLE,
THAT PROVIDED BY ALABAMA - WHERE CERTAIN RIGHTS MIGHT BE SACRIFICED OR
LOST:  "WHAT HAPPENS THERE MAY AFFECT THE WHOLE TRIAL.  AVAILABLE
DEFENSES MAY BE IRRETRIEVABLY LOST, IF NOT THEN AND THERE ASSERTED  ...
."  HAMILTON V. ALABAMA, 368 U.S. 52, 54.  SEE WHITE V. MARYLAND, 373
U.S. 59.  THE PRINCIPLE WAS ALSO APPLIED IN MASSIAH V. UNITED STATES,
377 U.S. 201, WHERE WE HELD THAT INCRIMINATING STATEMENTS OF THE
DEFENDANT SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE WHEN IT APPEARED THAT
THEY WERE OVERHEARD BY FEDERAL AGENTS WHO, WITHOUT NOTICE TO THE
DEFENDANT'S LAWYER, ARRANGED A MEETING BETWEEN THE DEFENDANT AND AN
ACCOMPLICE TURNED INFORMANT.  WE SAID, QUOTING A CONCURRING OPINION IN
SPANO V. NEW YORK, 360 U.S. 315, 326, THAT "ANYTHING LESS  ... MIGHT
DENY A DEFENDANT 'EFFECTIVE REPRESENTATION BY COUNSEL AT THE ONLY STAGE
WHEN LEGAL AID AND ADVICE WOULD HELP HIM.'"  377 U.S., AT 204. 

IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, WE DREW UPON THE RATIONALE OF
HAMILTON AND MASSIAH IN HOLDING THAT THE RIGHT TO COUNSEL WAS
GUARANTEED AT THE POINT WHERE THE ACCUSED, PRIOR TO ARRAIGNMENT, WAS
SUBJECTED TO SECRET INTERROGATION DESPITE REPEATED REQUESTS TO SEE HIS
LAWYER.  WE AGAIN NOTED THE NECESSITY OF COUNSEL'S PRESENCE IF THE
ACCUSED WAS TO HAVE A FAIR OPPORTUNITY TO PRESENT A DEFENSE AT THE
TRIAL ITSELF: 

"THE RULE SOUGHT BY THE STATE HERE, HOWEVER, WOULD MAKE THE TRIAL NO
MORE THAN AN APPEAL FROM THE INTERROGATION; AND THE 'RIGHT TO USE
COUNSEL AT THE FORMAL TRIAL WOULD BE A VERY HOLLOW THING IF, FOR ALL
PRACTICAL PURPOSES, THE CONVICTION IS ALREADY ASSURED BY PRETRIAL
EXAMINATION'  ...  .  'ONE CAN IMAGINE A CYNICAL PROSECUTOR SAYING:
"LET THEM HAVE THE MOST ILLUSTRIOUS COUNSEL, NOW.  THEY CAN'T ESCAPE
THE NOOSE.  THERE IS NOTHING THAT COUNSEL CAN DO FOR THEM AT THE
TRIAL."'"  378 U.S., AT 487-488. 

FINALLY IN MIRANDA V. ARIZONA, 384 U.S. 436, THE RULES ESTABLISHED
FOR CUSTODIAL INTERROGATION INCLUDED THE RIGHT TO THE PRESENCE OF
COUNSEL.  THE RESULT WAS RESTED ON OUR FINDING THAT THIS AND THE OTHER
RULES WERE NECESSARY TO SAFEGUARD THE PRIVILEGE AGAINST SELF
INCRIMINATION FROM BEING JEOPARDIZED BY SUCH INTERROGATION. 

OF COURSE, NOTHING DECIDED OR SAID IN THE OPINIONS IN THE CITED CASES
LINKS THE RIGHT TO COUNSEL ONLY TO PROTECTION OF FIFTH AMENDMENT
RIGHTS.  RATHER THOSE DECISIONS "NO MORE THAN REFLECT A CONSTITUTIONAL
PRINCIPLE ESTABLISHED AS LONG AGO AS POWELL V. ALABAMA  ...  ." 
MASSIAH V. UNITED STATES, SUPRA, AT 205.  IT IS CENTRAL TO THAT
PRINCIPLE THAT IN ADDITION TO COUNSEL'S PRESENCE AT TRIAL, (FN4) THE
ACCUSED IS GUARANTEED THAT HE NEED NOT STAND ALONE AGAINST THE STATE AT
ANY STAGE OF THE PROSECUTION, FORMAL OR INFORMAL, IN COURT OR OUT,
WHERE COUNSEL'S ABSENCE MIGHT DEROGATE FROM THE ACCUSED'S RIGHT TO A
FAIR TRIAL.  (FN5)  THE SECURITY OF THAT RIGHT IS AS MUCH THE AIM OF
THE RIGHT TO COUNSEL AS IT IS OF THE OTHER GUARANTEES OF THE SIXTH
AMENDMENT - THE RIGHT OF THE ACCUSED TO A SPEEDY AND PUBLIC TRIAL BY AN
IMPARTIAL JURY, HIS RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION, AND HIS RIGHT TO BE CONFRONTED WITH THE WITNESSES AGAINST
HIM AND TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOR.  THE PRESENCE OF COUNSEL AT SUCH CRITICAL CONFRONTATIONS, AS AT
THE TRIAL ITSELF, OPERATES TO ASSURE THAT THE ACCUSED'S INTERESTS WILL
BE PROTECTED CONSISTENTLY WITH OUR ADVERSARY THEORY OF CRIMINAL
PROSECUTION.  CF. POINTER V. TEXAS, 380 U.S. 400.    IN SUM, THE
PRINCIPLE OF POWELL V. ALABAMA AND SUCCEEDING CASES REQUIRES THAT WE
SCRUTINIZE ANY PRETRIAL CONFRONTATION OF THE ACCUSED TO DETERMINE
WHETHER THE PRESENCE OF HIS COUNSEL IS NECESSARY TO PRESERVE THE
DEFENDANT'S BASIC RIGHT TO A FAIR TRIAL AS AFFECTED BY HIS RIGHT
MEANINGFULLY TO CROSS-EXAMINE THE WITNESSES AGAINST HIM AND TO HAVE
EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL ITSELF.  IT CALLS UPON US
TO ANALYZE WHETHER POTENTIAL SUBSTANTIAL PREJUDICE TO DEFENDANT'S
RIGHTS INHERES IN THE PARTICULAR CONFRONTATION AND THE ABILITY OF
COUNSEL TO HELP AVOID THAT PREJUDICE. 

                                 III. 

THE GOVERNMENT CHARACTERIZES THE LINEUP AS A MERE PREPARATORY STEP IN
THE GATHERING OF THE PROSECUTION'S EVIDENCE, NOT DIFFERENT - FOR SIXTH
AMENDMENT PURPOSES - FROM VARIOUS OTHER PREPARATORY STEPS, SUCH AS
SYSTEMATIZED OR SCIENTIFIC ANALYZING OF THE ACCUSED'S FINGERPRINTS,
BLOOD SAMPLE, CLOTHING, HAIR, AND THE LIKE.  WE THINK THERE ARE
DIFFERENCES WHICH PRECLUDE SUCH STAGES BEING CHARACTERIZED AS CRITICAL
STAGES AT WHICH THE ACCUSED HAS THE RIGHT TO THE PRESENCE OF HIS
COUNSEL.  KNOWLEDGE OF THE TECHNIQUES OF SCIENCE AND TECHNOLOGY IS
SUFFICIENTLY AVAILABLE, AND THE VARIABLES IN TECHNIQUES FEW ENOUGH,
THAT THE ACCUSED HAS THE OPPORTUNITY FOR A MEANINGFUL CONFRONTATION OF
THE GOVERNMENT'S CASE AT TRIAL THROUGH THE ORDINARY PROCESSES OF CROSS
EXAMINATION OF THE GOVERNMENT'S EXPERT WITNESSES AND THE PRESENTATION
OF THE EVIDENCE OF HIS OWN EXPERTS.  THE DENIAL OF A RIGHT TO HAVE HIS
COUNSEL PRESENT AT SUCH ANALYSES DOES NOT THEREFORE VIOLATE THE SIXTH
AMENDMENT; THEY ARE NOT CRITICAL STAGES SINCE THERE IS MINIMAL RISK
THAT HIS COUNSEL'S ABSENCE AT SUCH STAGES MIGHT DEROGATE FROM HIS RIGHT
TO A FAIR TRIAL. 

                             IV. 

BUT THE CONFRONTATION COMPELLED BY THE STATE BETWEEN THE ACCUSED AND
THE VICTIM OR WITNESSES TO A CRIME TO ELICIT IDENTIFICATION EVIDENCE IS
PECULIARLY RIDDLED WITH INNUMERABLE DANGERS AND VARIABLE FACTORS WHICH
MIGHT SERIOUSLY, EVEN CRUCIALLY, DEROGATE FROM A FAIR TRIAL.  THE
VAGARIES OF EYEWITNESS IDENTIFICATION ARE WELL-KNOWN; THE ANNALS OF
CRIMINAL LAW ARE RIFE WITH INSTANCES OF MISTAKEN IDENTIFICATION.  (FN6)
MR. JUSTICE FRANKFURTER ONCE SAID:  "WHAT IS THE WORTH OF
IDENTIFICATION TESTIMONY EVEN WHEN UNCONTRADICTED?  THE IDENTIFICATION
OF STRANGERS IS PROVERBIALLY UNTRUSTWORTHY.  THE HAZARDS OF SUCH
TESTIMONY ARE ESTABLISHED BY A FORMIDABLE NUMBER OF INSTANCES IN THE
RECORDS OF ENGLISH AND AMERICAN TRIALS.  THESE INSTANCES ARE RECENT -
NOT DUE TO THE BRUTALITIES OF ANCIENT CRIMINAL PROCEDURE."  THE CASE OF
SACCO AND VANZETTI 30 (1927).  A MAJOR FACTOR CONTRIBUTING TO THE HIGH
INCIDENCE OF MISCARRIAGE OF JUSTICE FROM MISTAKEN IDENTIFICATION HAS
BEEN THE DEGREE OF SUGGESTION INHERENT IN THE MANNER IN WHICH THE
PROSECUTION PRESENTS THE SUSPECT TO WITNESSES FOR PRETRIAL
IDENTIFICATION.  A COMMENTATOR HAS OBSERVED THAT "THE INFLUENCE OF
IMPROPER SUGGESTION UPON IDENTIFYING WITNESSES PROBABLY ACCOUNTS FOR
MORE MISCARRIAGES OF JUSTICE THAN ANY OTHER SINGLE FACTOR - PERHAPS IT
IS RESPONSIBLE FOR MORE SUCH ERRORS THAN ALL OTHER FACTORS COMBINED." 
WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 26.  SUGGESTION CAN
BE CREATED INTENTIONALLY OR UNINTENTIONALLY IN MANY SUBTLE WAYS.  (FN7)
AND THE DANGERS FOR THE SUSPECT ARE PARTICULARLY GRAVE WHEN THE
WITNESS' OPPORTUNITY FOR OBSERVATION WAS INSUBSTANTIAL, AND THUS HIS
SUSCEPTIBILITY TO SUGGESTION THE GREATEST. 

MOREOVER, "IT IS A MATTER OF COMMON EXPERIENCE THAT, ONCE A WITNESS
HAS PICKED OUT THE ACCUSED AT THE LINE-UP, HE IS NOT LIKELY TO GO BACK
ON HIS WORD LATER ON, SO THAT IN PRACTICE THE ISSUE OF IDENTITY MAY (IN
THE ABSENCE OF OTHER RELEVANT EVIDENCE) FOR ALL PRACTICAL PURPOSES BE
DETERMINED THERE AND THEN, BEFORE THE TRIAL."  (FN8)

THE PRETRIAL CONFRONTATION FOR PURPOSE OF IDENTIFICATION MAY TAKE
THE FORM OF A LINEUP, ALSO KNOWN AS AN "IDENTIFICATION PARADE" OR
"SHOWUP," AS IN THE PRESENT CASE, OR PRESENTATION OF THE SUSPECT ALONE
TO THE WITNESS, AS IN STOVALL V. DENNO, SUPRA.  IT IS OBVIOUS THAT
RISKS OF SUGGESTION ATTEND EITHER FORM OF CONFRONTATION AND INCREASE
THE DANGERS INHERING IN EYEWITNESS IDENTIFICATION.  (FN9)  BUT AS IS
THE CASE WITH SECRET INTERROGATIONS, THERE IS SERIOUS DIFFICULTY IN
DEPICTING WHAT TRANSPIRES AT LINEUPS AND OTHER FORMS OF IDENTIFICATION
CONFRONTATIONS.  "PRIVACY RESULTS IN SECRECY AND THIS IN TURN RESULTS
IN A GAP IN OUR KNOWLEDGE AS TO WHAT IN FACT GOES ON  ...  ."  MIRANDA
V. ARIZONA, SUPRA, AT 448.  FOR THE SAME REASONS, THE DEFENSE CAN
SELDOM RECONSTRUCT THE MANNER AND MODE OF LINEUP IDENTIFICATION FOR
JUDGE OR JURY AT TRIAL.  THOSE PARTICIPATING IN A LINEUP WITH THE
ACCUSED MAY OFTEN BE POLICE OFFICERS; (FN10) IN ANY EVENT, THE
PARTICIPANTS' NAMES ARE RARELY RECORDED OR DIVULGED AT TRIAL.  (FN11)
THE IMPEDIMENTS TO AN OBJECTIVE OBSERVATION ARE INCREASED WHEN THE
VICTIM IS THE WITNESS.  LINEUPS ARE PREVALENT IN RAPE AND ROBBERY
PROSECUTIONS AND PRESENT A PARTICULAR HAZARD THAT A VICTIM'S
UNDERSTANDABLE OUTRAGE MAY EXCITE VENGEFUL OR SPITEFUL MOTIVES.  (FN12)
IN ANY EVENT, NEITHER WITNESSES NOR LINEUP PARTICIPANTS ARE APT TO BE
ALERT FOR CONDITIONS PREJUDICIAL TO THE SUSPECT.  AND IF THEY WERE, IT
WOULD LIKELY BE OF SCANT BENEFIT TO THE SUSPECT SINCE NEITHER WITNESSES
NOR LINEUP PARTICIPANTS ARE LIKELY TO BE SCHOOLED IN THE DETECTION OF
SUGGESTIVE INFLUENCES.  (FN13)  IMPROPER INFLUENCES MAY GO UNDETECTED
BY A SUSPECT, GUILTY OR NOT, WHO EXPERIENCES THE EMOTIONAL TENSION
WHICH WE MIGHT EXPECT IN ONE BEING CONFRONTED WITH POTENTIAL ACCUSERS. 
(FN14)  EVEN WHEN HE DOES OBSERVE ABUSE, IF HE HAS A CRIMINAL RECORD HE
MAY BE RELUCTANT TO TAKE THE STAND AND OPEN UP THE ADMISSION OF PRIOR
CONVICTIONS.  MOREOVER, ANY PROTESTATIONS BY THE SUSPECT OF THE
FAIRNESS OF THE LINEUP MADE AT TRIAL ARE LIKELY TO BE IN VAIN; (FN15)
THE JURY'S CHOICE IS BETWEEN THE ACCUSED'S UNSUPPORTED VERSION AND THAT
OF THE POLICE OFFICERS PRESENT.  (FN16)  IN SHORT, THE ACCUSED'S
INABILITY EFFECTIVELY TO RECONSTRUCT AT TRIAL ANY UNFAIRNESS THAT
OCCURRED AT THE LINEUP MAY DEPRIVE HIM OF HIS ONLY OPPORTUNITY
MEANINGFULLY TO ATTACK THE CREDIBILITY OF THE WITNESS' COURTROOM
IDENTIFICATION. 

WHAT FACTS HAVE BEEN DISCLOSED IN SPECIFIC CASES ABOUT THE CONDUCT OF
PRETRIAL CONFRONTATIONS FOR IDENTIFICATION ILLUSTRATE BOTH THE
POTENTIAL FOR SUBSTANTIAL PREJUDICE TO THE ACCUSED AT THAT STAGE AND
THE NEED FOR ITS REVELATION AT TRIAL.  A COMMENTATOR PROVIDES SOME
STRIKING EXAMPLES: 

"IN A CANADIAN CASE  ...  THE DEFENDANT HAD BEEN PICKED OUT OF A LINE
UP OF SIX MEN, OF WHICH HE WAS THE ONLY ORIENTAL.  IN OTHER CASES, A
BLACK-HAIRED SUSPECT WAS PLACED AMONG A GROUP OF LIGHT-HAIRED PERSONS,
TALL SUSPECTS HAVE BEEN MADE TO STAND WITH SHORT NON-SUSPECTS, AND, IN
A CASE WHERE THE PERPETRATOR OF THE CRIME WAS KNOWN TO BE A YOUTH, A
SUSPECT UNDER TWENTY WAS PLACED IN A LINE-UP WITH FIVE OTHER PERSONS,
ALL OF WHOM WERE FORTY OR OVER."  (FN17) 

SIMILARLY STATE REPORTS, IN THE COURSE OF DESCRIBING PRIOR
IDENTIFICATIONS ADMITTED AS EVIDENCE OF GUILT, REVEAL NUMEROUS
INSTANCES OF SUGGESTIVE PROCEDURES, FOR EXAMPLE, THAT ALL IN THE LINEUP
BUT THE SUSPECT WERE KNOWN TO THE IDENTIFYING WITNESS, (FN18) THAT THE
OTHER PARTICIPANTS IN A LINEUP WERE GROSSLY DISSIMILAR IN APPEARANCE TO
THE SUSPECT, (FN19) THAT ONLY THE SUSPECT WAS REQUIRED TO WEAR
DISTINCTIVE CLOTHING WHICH THE CULPRIT ALLEGEDLY WORE, (FN20) THAT THE
WITNESS IS TOLD BY THE POLICE THAT THEY HAVE CAUGHT THE CULPRIT AFTER
WHICH THE DEFENDANT IS BROUGHT BEFORE THE WITNESS ALONE OR IS VIEWED IN
JAIL, (FN21) THAT THE SUSPECT IS POINTED OUT BEFORE OR DURING A LINEUP,
(FN22) AND THAT THE PARTICIPANTS IN THE LINEUP ARE ASKED TO TRY ON AN
ARTICLE OF CLOTHING WHICH FITS ONLY THE SUSPECT.  (FN23) 

THE POTENTIAL FOR IMPROPER INFLUENCE IS ILLUSTRATED BY THE
CIRCUMSTANCES, INSOFAR AS THEY APPEAR, SURROUNDING THE PRIOR
IDENTIFICATIONS IN THE THREE CASES WE DECIDE TODAY.  IN THE PRESENT
CASE, THE TESTIMONY OF THE IDENTIFYING WITNESSES ELICITED ON CROSS
EXAMINATION REVEALED THAT THOSE WITNESSES WERE TAKEN TO THE COURTHOUSE
AND SEATED IN THE COURTROOM TO AWAIT ASSEMBLY OF THE LINEUP.  THE
COURTROOM FACED ON A HALLWAY OBSERVABLE TO THE WITNESSES THROUGH AN
OPEN DOOR.  THE CASHIER TESTIFIED THAT SHE SAW WADE "STANDING IN THE
HALL" WITHIN SIGHT OF AN FBI AGENT.  FIVE OR SIX OTHER PRISONERS LATER
APPEARED IN THE HALL.  THE VICE PRESIDENT TESTIFIED THAT HE SAW A
PERSON IN THE HALL IN THE CUSTODY OF THE AGENT WHO "RESEMBLED THE
PERSON THAT WE IDENTIFIED AS THE ONE THAT HAD ENTERED THE BANK." 
(FN24) 

THE LINEUP IN GILBERT, SUPRA, WAS CONDUCTED IN AN AUDITORIUM IN WHICH
SOME 100 WITNESSES TO SEVERAL ALLEGED STATE AND FEDERAL ROBBERIES
CHARGED TO GILBERT MADE WHOLESALE IDENTIFICATIONS OF GILBERT AS THE
ROBBER IN EACH OTHER'S PRESENCE, A PROCEDURE SAID TO BE FRAUGHT WITH
DANGERS OF SUGGESTION.  (FN25)  AND THE VICE OF SUGGESTION CREATED BY
THE IDENTIFICATION IN STOVALL, SUPRA, WAS THE PRESENTATION TO THE
WITNESS OF THE SUSPECT ALONE HANDCUFFED TO POLICE OFFICERS.  IT IS HARD
TO IMAGINE A SITUATION MORE CLEARLY CONVEYING THE SUGGESTION TO THE
WITNESS THAT THE ONE PRESENTED IS BELIEVED GUILTY BY THE POLICE.  SEE
FRANKFURTER, THE CASE OF SACCO AND VANZETTI 31-32. 

THE FEW CASES THAT HAVE SURFACED THEREFORE REVEAL THE EXISTENCE OF A
PROCESS ATTENDED WITH HAZARDS OF SERIOUS UNFAIRNESS TO THE CRIMINAL
ACCUSED AND STRONGLY SUGGEST THE PLIGHT OF THE MORE NUMEROUS DEFENDANTS
WHO ARE UNABLE TO FERRET OUT SUGGESTIVE INFLUENCES IN THE SECRECY OF
THE CONFRONTATION.  WE DO NOT ASSUME THAT THESE RISKS ARE THE RESULT OF
POLICE PROCEDURES INTENTIONALLY DESIGNED TO PREJUDICE AN ACCUSED. 
RATHER WE ASSUME THEY DERIVE FROM THE DANGERS INHERENT IN EYE-WITNESS
IDENTIFICATION AND THE SUGGESTIBILITY INHERENT IN THE CONTEXT OF THE
PRETRIAL IDENTIFICATION.  WILLIAMS & HAMMELMANN, IN ONE OF THE MOST
COMPREHENSIVE STUDIES OF SUCH FORMS OF IDENTIFICATION, SAID, "THE FACT
THAT THE POLICE THEMSELVES HAVE, IN A GIVEN CASE, LITTLE OR NO DOUBT
THAT THE MAN PUT UP FOR IDENTIFICATION HAS COMMITTED THE OFFENSE, AND
THAT THEIR CHIEF PRE-OCCUPATION IS WITH THE PROBLEM OF GETTING
SUFFICIENT PROOF, BECAUSE HE HAS NOT 'COME CLEAN,' INVOLVES A DANGER
THAT THIS PERSUASION MAY COMMUNICATE ITSELF EVEN IN A DOUBTFUL CASE TO
THE WITNESS IN SOME WAY  ...  ."  IDENTIFICATION PARADES, PART I,
(1963) CRIM. L. REV. 479, 483. 

INSOFAR AS THE ACCUSED'S CONVICTION MAY REST ON A COURTROOM
IDENTIFICATION IN FACT THE FRUIT OF A SUSPECT PRETRIAL IDENTIFICATION
WHICH THE ACCUSED IS HELPLESS TO SUBJECT TO EFFECTIVE SCRUTINY AT
TRIAL, THE ACCUSED IS DEPRIVED OF THAT RIGHT OF CROSS-EXAMINATION WHICH
IS AN ESSENTIAL SAFEGUARD TO HIS RIGHT TO CONFRONT THE WITNESSES
AGAINST HIM.  POINTER V. TEXAS, 380 U.S. 400.  AND EVEN THOUGH CROSS
EXAMINATION IS A PRECIOUS SAFEGUARD TO A FAIR TRIAL, IT CANNOT BE
VIEWED AS AN ABSOLUTE ASSURANCE OF ACCURACY AND RELIABILITY.  THUS IN
THE PRESENT CONTEXT, WHERE SO MANY VARIABLES AND PITFALLS EXIST, THE
FIRST LINE OF DEFENSE MUST BE THE PREVENTION OF UNFAIRNESS AND THE
LESSENING OF THE HAZARDS OF EYEWITNESS IDENTIFICATION AT THE LINEUP
ITSELF.  THE TRIAL WHICH MIGHT DETERMINE THE ACCUSED'S FATE MAY WELL
NOT BE THAT IN THE COURTROOM BUT THAT AT THE PRETRIAL CONFRONTATION,
WITH THE STATE ALIGNED AGAINST THE ACCUSED, THE WITNESS THE SOLE JURY,
AND THE ACCUSED UNPROTECTED AGAINST THE OVERREACHING, INTENTIONAL OR
UNINTENTIONAL, AND WITH LITTLE OR NO EFFECTIVE APPEAL FROM THE JUDGMENT
THERE RENDERED BY THE WITNESS - "THAT'S THE MAN." 

SINCE IT APPEARS THAT THERE IS GRAVE POTENTIAL FOR PREJUDICE,
INTENTIONAL OR NOT, IN THE PRETRIAL LINEUP, WHICH MAY NOT BE CAPABLE OF
RECONSTRUCTION AT TRIAL, AND SINCE PRESENCE OF COUNSEL ITSELF CAN OFTEN
AVERT PREJUDICE AND ASSURE A MEANINGFUL CONFRONTATION AT TRIAL, (FN26)
THERE CAN BE LITTLE DOUBT THAT FOR WADE THE POST-INDICTMENT LINEUP WAS
A CRITICAL STAGE OF THE PROSECUTION AT WHICH HE WAS "AS MUCH ENTITLED
TO SUCH AID OF COUNSEL  ...  AS AT THE TRIAL ITSELF."  POWELL V.
ALABAMA, 287 U.S. 45, 57.  THUS BOTH WADE AND HIS COUNSEL SHOULD HAVE
BEEN NOTIFIED OF THE IMPENDING LINEUP, AND COUNSEL'S PRESENCE SHOULD
HAVE BEEN A REQUISITE TO CONDUCT OF THE LINEUP, ABSENT AN "INTELLIGENT
WAIVER."  SEE CARNLEY V. COCHRAN, 369 U.S. 506.  NO SUBSTANTIAL
COUNTERVAILING POLICY CONSIDERATIONS HAVE BEEN ADVANCED AGAINST THE
REQUIREMENT OF THE PRESENCE OF COUNSEL.  CONCERN IS EXPRESSED THAT THE
REQUIREMENT WILL FORESTALL PROMPT IDENTIFICATIONS AND RESULT IN
OBSTRUCTION OF THE CONFRONTATIONS.  AS FOR THE FIRST, WE NOTE THAT IN
THE TWO CASES IN WHICH THE RIGHT TO COUNSEL IS TODAY HELD TO APPLY,
COUNSEL HAD ALREADY BEEN APPOINTED AND NO ARGUMENT IS MADE IN EITHER
CASE THAT NOTICE TO COUNSEL WOULD HAVE PREJUDICIALLY DELAYED THE
CONFRONTATIONS.  MOREOVER, WE LEAVE OPEN THE QUESTION WHETHER THE
PRESENCE OF SUBSTITUTE COUNSEL MIGHT NOT SUFFICE WHERE NOTIFICATION AND
PRESENCE OF THE SUSPECT'S OWN COUNSEL WOULD RESULT IN PREJUDICIAL
DELAY.  (FN27)  AND TO REFUSE TO RECOGNIZE THE RIGHT TO COUNSEL FOR
FEAR THAT COUNSEL WILL OBSTRUCT THE COURSE OF JUSTICE IS CONTRARY TO
THE BASIC ASSUMPTIONS UPON WHICH THIS COURT HAS OPERATED IN SIXTH
AMENDMENT CASES.  WE REJECTED SIMILAR LOGIC IN MIRANDA V. ARIZONA
CONCERNING PRESENCE OF COUNSEL DURING CUSTODIAL INTERROGATION, 384
U.S., AT 480-481: 

"AN ATTORNEY IS MERELY EXERCISING THE GOOD PROFESSIONAL JUDGMENT HE
HAS BEEN TAUGHT.  THIS IS NOT CAUSE FOR CONSIDERING THE ATTORNEY A
MENACE TO LAW ENFORCEMENT.  HE IS MERELY CARRYING OUT WHAT HE IS SWORN
TO DO UNDER HIS OATH - TO PROTECT TO THE EXTENT OF HIS ABILITY THE
RIGHTS OF HIS CLIENT.  IN FULFILLING THIS RESPONSIBILITY THE ATTORNEY
PLAYS A VITAL ROLE IN THE ADMINISTRATION OF CRIMINAL JUSTICE UNDER OUR
CONSTITUTION."    IN OUR VIEW COUNSEL CAN HARDLY IMPEDE LEGITIMATE LAW
ENFORCEMENT; ON THE CONTRARY, FOR THE REASONS EXPRESSED, LAW
ENFORCEMENT MAY BE ASSISTED BY PREVENTING THE INFILTRATION OF TAINT IN
THE PROSECUTION'S IDENTIFICATION EVIDENCE.  (FN28)  THAT RESULT CANNOT
HELP THE GUILTY AVOID CONVICTION BUT CAN ONLY HELP ASSURE THAT THE
RIGHT MAN HAS BEEN BROUGHT TO JUSTICE.  (FN29) 

LEGISLATIVE OR OTHER REGULATIONS, SUCH AS THOSE OF LOCAL POLICE
DEPARTMENTS, WHICH ELIMINATE THE RISKS OF ABUSE AND UNINTENTIONAL
SUGGESTION AT LINEUP PROCEEDINGS AND THE IMPEDIMENTS TO MEANINGFUL
CONFRONTATION AT TRIAL MAY ALSO REMOVE THE BASIS FOR REGARDING THE
STAGE AS "CRITICAL."  (FN30)  BUT NEITHER CONGRESS NOR THE FEDERAL
AUTHORITIES HAVE SEEN FIT TO PROVIDE A SOLUTION.  WHAT WE HOLD TODAY
"IN NO WAY CREATES A CONSTITUTIONAL STRAITJACKET WHICH WILL HANDICAP
SOUND EFFORTS AT REFORM, NOR IS IT INTENDED TO HAVE THIS EFFECT." 
MIRANDA V. ARIZONA, SUPRA, AT 467. 

                                  V. 

WE COME NOW TO THE QUESTION WHETHER THE DENIAL OF WADE'S MOTION TO
STRIKE THE COURTROOM IDENTIFICATION BY THE BANK WITNESSES AT TRIAL
BECAUSE OF THE ABSENCE OF HIS COUNSEL AT THE LINEUP REQUIRED, AS THE
COURT OF APPEALS HELD, THE GRANT OF A NEW TRIAL AT WHICH SUCH EVIDENCE
IS TO BE EXCLUDED.  WE DO NOT THINK THIS DISPOSITION CAN BE JUSTIFIED
WITHOUT FIRST GIVING THE GOVERNMENT THE OPPORTUNITY TO ESTABLISH BY
CLEAR AND CONVINCING EVIDENCE THAT THE IN-COURT IDENTIFICATIONS WERE
BASED UPON OBSERVATIONS OF THE SUSPECT OTHER THAN THE LINEUP
IDENTIFICATION.  SEE MURPHY V. WATERFRONT COMMISSION, 378 U.S. 52, 79,
N. 18.  (FN31)  WHERE, AS HERE, THE ADMISSIBILITY OF EVIDENCE OF THE
LINEUP IDENTIFICATION ITSELF IS NOT INVOLVED, A PER SE RULE OF
EXCLUSION OF COURTROOM IDENTIFICATION WOULD BE UNJUSTIFIED.  (FN32)
SEE NARDONE V. UNITED STATES, 308 U.S. 338, 341.  A RULE LIMITED SOLELY
TO THE EXCLUSION OF TESTIMONY CONCERNING IDENTIFICATION AT THE LINEUP
ITSELF, WITHOUT REGARD TO ADMISSIBILITY OF THE COURTROOM
IDENTIFICATION, WOULD RENDER THE RIGHT TO COUNSEL AN EMPTY ONE.  THE
LINEUP IS MOST OFTEN USED, AS IN THE PRESENT CASE, TO CRYSTALLIZE THE
WITNESSES' IDENTIFICATION OF THE DEFENDANT FOR FUTURE REFERENCE.  WE
HAVE ALREADY NOTED THAT THE LINEUP IDENTIFICATION WILL HAVE THAT
EFFECT.  THE STATE MAY THEN REST UPON THE WITNESSES' UNEQUIVOCAL
COURTROOM IDENTIFICATION, AND NOT MENTION THE PRETRIAL IDENTIFICATION
AS PART OF THE STATE'S CASE AT TRIAL.  COUNSEL IS THEN IN THE
PREDICAMENT IN WHICH WADE'S COUNSEL FOUND HIMSELF - REALIZING THAT
POSSIBLE UNFAIRNESS AT THE LINEUP MAY BE THE SOLE MEANS OF ATTACK UPON
THE UNEQUIVOCAL COURTROOM IDENTIFICATION, AND HAVING TO PROBE IN THE
DARK IN AN ATTEMPT TO DISCOVER AND REVEAL UNFAIRNESS, WHILE BOLSTERING
THE GOVERNMENT WITNESS' COURTROOM IDENTIFICATION BY BRINGING OUT AND
DWELLING UPON HIS PRIOR IDENTIFICATION.  SINCE COUNSEL'S PRESENCE AT
THE LINEUP WOULD EQUIP HIM TO ATTACK NOT ONLY THE LINEUP IDENTIFICATION
BUT THE COURTROOM IDENTIFICATION AS WELL, LIMITING THE IMPACT OF
VIOLATION OF THE RIGHT TO COUNSEL TO EXCLUSION OF EVIDENCE ONLY OF
IDENTIFICATION AT THE LINEUP ITSELF DISREGARDS A CRITICAL ELEMENT OF
THAT RIGHT. 

WE THINK IT FOLLOWS THAT THE PROPER TEST TO BE APPLIED IN THESE
SITUATIONS IS THAT QUOTED IN WONG SUN V. UNITED STATES, 371 U.S. 471,
488, "'WHETHER, GRANTING ESTABLISHMENT OF THE PRIMARY ILLEGALITY, THE
EVIDENCE TO WHICH INSTANT OBJECTION IS MADE HAS BEEN COME AT BY
EXPLOITATION OF THAT ILLEGALITY OR INSTEAD BY MEANS SUFFICIENTLY
DISTINGUISHABLE TO BE PURGED OF THE PRIMARY TAINT.'  MAGUIRE, EVIDENCE
OF GUILT 221 (1959)."  SEE ALSO HOFFA V. UNITED STATES, 385 U.S. 293,
309.  APPLICATION OF THIS TEST IN THE PRESENT CONTEXT REQUIRES
CONSIDERATION OF VARIOUS FACTORS; FOR EXAMPLE, THE PRIOR OPPORTUNITY TO
OBSERVE THE ALLEGED CRIMINAL ACT, THE EXISTENCE OF ANY DISCREPANCY
BETWEEN ANY PRE-LINEUP DESCRIPTION AND THE DEFENDANT'S ACTUAL
DESCRIPTION, ANY IDENTIFICATION PRIOR TO LINEUP OF ANOTHER PERSON, THE
IDENTIFICATION BY PICTURE OF THE DEFENDANT PRIOR TO THE LINEUP, FAILURE
TO IDENTIFY THE DEFENDANT ON A PRIOR OCCASION, AND THE LAPSE OF TIME
BETWEEN THE ALLEGED ACT AND THE LINEUP IDENTIFICATION.  IT IS ALSO
RELEVANT TO CONSIDER THOSE FACTS WHICH, DESPITE THE ABSENCE OF COUNSEL,
ARE DISCLOSED CONCERNING THE CONDUCT OF THE LINEUP.  (FN33) 

WE DOUBT THAT THE COURT OF APPEALS APPLIED THE PROPER TEST FOR
EXCLUSION OF THE IN-COURT IDENTIFICATION OF THE TWO WITNESSES.  THE
COURT STATED THAT "IT CANNOT BE SAID WITH ANY CERTAINTY THAT THEY WOULD
HAVE RECOGNIZED APPELLANT AT THE TIME OF TRIAL IF THIS INTERVENING
LINEUP HAD NOT OCCURRED," AND THAT THE TESTIMONY OF THE TWO WITNESSES
"MAY WELL HAVE BEEN COLORED BY THE ILLEGAL PROCEDURE AND WAS
PREJUDICIAL."  358 F.2D, AT 560.  MOREOVER, THE COURT WAS PERSUADED, IN
PART, BY THE "COMPULSORY VERBAL RESPONSES MADE BY WADE AT THE INSTANCE
OF THE SPECIAL AGENT."  IBID.  THIS IMPLIES THE ERRONEOUS HOLDING THAT
WADE'S PRIVILEGE AGAINST SELF-INCRIMINATION WAS VIOLATED SO THAT THE
DENIAL OF COUNSEL REQUIRED EXCLUSION. 

ON THE RECORD NOW BEFORE US WE CANNOT MAKE THE DETERMINATION WHETHER
THE IN-COURT IDENTIFICATIONS HAD AN INDEPENDENT ORIGIN.  THIS WAS NOT
AN ISSUE AT TRIAL, ALTHOUGH THERE IS SOME EVIDENCE RELEVANT TO A
DETERMINATION.  THAT INQUIRY IS MOST PROPERLY MADE IN THE DISTRICT
COURT.  WE THEREFORE THINK THE APPROPRIATE PROCEDURE TO BE FOLLOWED IS
TO VACATE THE CONVICTION PENDING A HEARING TO DETERMINE WHETHER THE IN
COURT INDENTIFICATIONS HAD AN INDEPENDENT SOURCE, OR WHETHER, IN ANY
EVENT, THE INTRODUCTION OF THE EVIDENCE WAS HARMLESS ERROR, CHAPMAN V.
CALIFORNIA, 386 U.S. 18, AND FOR THE DISTRICT COURT TO REINSTATE THE
CONVICTION OR ORDER A NEW TRIAL, AS MAY BE PROPER.  SEE UNITED STATES
V. SHOTWELL MFG. CO., 355 U.S. 233, 245-246. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS
REMANDED TO THAT COURT WITH DIRECTION TO ENTER A NEW JUDGMENT VACATING
THE CONVICTION AND REMANDING THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  HOLT WAS DECIDED BEFORE WEEKS V. UNITED STATES, 232 U.S. 383,
FASHIONED THE RULE EXCLUDING ILLEGALLY OBTAINED EVIDENCE IN A FEDERAL
PROSECUTION.  THE COURT THEREFORE FOLLOWED ADAMS V. NEW YORK, 192 U.S.
585, IN HOLDING THAT, IN ANY EVENT, "WHEN HE IS EXHIBITED, WHETHER
VOLUNTARILY OR BY ORDER, AND EVEN IF THE ORDER GOES TOO FAR, THE
EVIDENCE, IF MATERIAL, IS COMPETENT."  218 U.S., AT 253. 

FN2  SEE POWELL V. ALABAMA, 287 U.S. 45, 60-65; BEANEY, RIGHT TO
COUNSEL IN AMERICAN COURTS 8-26. 

FN3  SEE NOTE, 73 YALE L.J. 1000, 1040-1042 (1964); COMMENT, 53
CALIF. L. REV. 337, 347-348 (1965). 

FN4  SEE, E.G., POWELL V. ALABAMA, 287 U.S. 45; HAMILTON V. ALABAMA,
368 U.S. 52; WHITE V. MARYLAND 373 U.S. 59; ESCOBEDO V. ILLINOIS, 378
U.S. 478; MASSIAH V. UNITED STATES, 377 U.S. 201. 

FN5  SEE CASES CITED N. 4, SUPRA; AVERY V. ALABAMA, 308 U.S. 444,
446. 

FN6  BORCHARD, CONVICTING THE INNOCENT; FRANK & FRANK, NOT GUILTY;
WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES; 3 WIGMORE, EVIDENCE
SEC 786A (3D ED. 1940); ROLPH, PERSONAL IDENTITY; GROSS, CRIMINAL
INVESTIGATION 47-54 (JACKSON ED. 1962); WILLIAMS, PROOF OF GUILT 83-98
(1955); WILLS, CIRCUMSTANTIAL EVIDENCE 192-205 (7TH ED. 1937); WIGMORE,
THE SCIENCE OF JUDICIAL PROOF SECS 250-253 (3D ED. 1937). 

FN7  SEE WALL, SUPRA, N. 6, AT 26-65; MURRAY, THE CRIMINAL LINEUP AT
HOME AND ABROAD, 1966 UTAH L. REV. 610; NAPLEY, PROBLEMS OF EFFECTING
THE PRESENTATION OF THE CASE FOR A DEFENDANT, 66 COL. L. REV. 94, 98-99
(1966); WILLIAMS, IDENTIFICATION PARADES, (1955) CRIM. L. REV. (ENG.)
525; PAUL, IDENTIFICATION OF ACCUSED PERSONS, 12 AUSTL.  L.J. 42
(1938); HOUTS, FROM EVIDENCE TO PROOF 25; WILLIAMS & HAMMELMANN,
IDENTIFICATION PARADES, PARTS I & II (1963) CRIM. L. REV. 479-490, 545
555; GORPHE, SHOWING PRISONERS TO WITNESSES FOR IDENTIFICATION, 1 AM.
J. POLICE SCI.  79 (1930); WIGMORE, THE SCIENCE OF JUDICIAL PROOF,
SUPRA, N. 6, AT SEC 253; DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND
70; WILLIAMS, PROOF OF GUILT 95-97. 

FN8  WILLIAMS & HAMMELMANN, IDENTIFICATION PARADES, PART I, (1963)
CRIM. L. REV. 479, 482. 

FN9  WILLIAMS & HAMMELMANN, IDENTIFICATION PARADES, PART I, SUPRA, N.
7. 

FN10  SEE WALL, SUPRA, N. 6, AT 57-59; SEE, E.G., PEOPLE V. BONEY, 28
ILL. 2D 505, 192 N.E.2D 920 (1963); PEOPLE V. JAMES, 218 CAL. APP. 2D
166, 32 CAL. RPTR.  283 (1963). 

FN11  SEE ROLPH, PERSONAL IDENTITY 50:  "THE BRIGHT BURDEN OF
IDENTITY, AT THESE PARADES, IS LIFTED FROM THE INNOCENT PARTICIPANTS TO
HOVER ABOUT THE SUSPECT, LEAVING THE REST FEATURELESS AND UNKNOWN AND
WITHOUT INTEREST." 

FN12  SEE WILLIAMS & HAMMELMANN, IDENTIFICATION PARADES, PART II,
(1963) CRIM. L. REV.  545, 546; BORCHARD, CONVICTING THE INNOCENT 367. 

FN13  AN ADDITIONAL IMPEDIMENT TO THE DETECTION OF SUCH INFLUENCES BY
PARTICIPANTS, INCLUDING THE SUSPECT, IS THE PHYSICAL CONDITIONS OFTEN
SURROUNDING THE CONDUCT OF THE LINEUP.  IN MANY, LIGHTS SHINE ON THE
STAGE IN SUCH A WAY THAT THE SUSPECT CANNOT SEE THE WITNESS.  SEE
GILBERT V. UNITED STATES, 366 F.2D 923 (C.A. 9TH CIR. 1966).  IN SOME A
ONE-WAY MIRROR IS USED AND WHAT IS SAID ON THE WITNESS' SIDE CANNOT BE
HEARD.  SEE RIGNEY V. HENDRICK, 355 F.2D 710, 711, N. 2 (C.A. 3D CIR.
1965); AARON V. STATE, 273 ALA. 337, 139 SO. 2D 309 (1961). 

FN14  WILLIAMS & HAMMELMANN, PART I, SUPRA, N. 7, AT 489; NAPLEY,
SUPRA, N. 7, AT 99. 

FN15  SEE IN RE GROBAN, 352 U.S. 330, 340 (BLACK, J., DISSENTING). 
THE DIFFICULT POSITION OF DEFENDANTS IN ATTEMPTING TO PROTEST THE
MANNER OF PRETRIAL IDENTIFICATION IS ILLUSTRATED BY THE MANY STATE
COURT CASES IN WHICH CONTENTIONS OF BLATANT ABUSE RESTED ON THEIR
UNSUPPORTABLE ALLEGATIONS, USUALLY CONTROVERTED BY THE POLICE OFFICERS
PRESENT.  SEE, E.G., PEOPLE V. SHIELDS, 70 CAL. APP. 2D 628, 634-635,
161 P.2D 475, 478-479 (1945); PEOPLE V. HICKS, 22 ILL. 2D 364, 176
N.E.2D 810 (1961); STATE V. HILL, 193 KAN. 512, 394 P.2D 106 (1964);
REDMON V. COMMONWEALTH, 321 S.W.2D 397 (KY. CT. APP.  1959); LUBINSKI
V. STATE, 180 MD. 1, 8, 22 A.2D 455, 459 (1941).  FOR A STRIKING CASE
IN WHICH HARDLY ANYONE AGREED UPON WHAT OCCURRED AT THE LINEUP,
INCLUDING WHO IDENTIFIED WHOM, SEE JOHNSON V. STATE, 237 MD. 283, 206
A.2D 138 (1965). 

FN16  AN INSTRUCTIVE EXAMPLE OF THE DEFENDANT'S PREDICAMENT MAY BE
FOUND IN PROCTOR V. STATE, 223 MD. 394, 164 A.2D 708 (1960).  A PRIOR
IDENTIFICATION IS ADMISSIBLE IN MARYLAND ONLY UNDER THE SALUTARY RULE
THAT IT CANNOT HAVE BEEN MADE "UNDER CONDITIONS OF UNFAIRNESS OR
UNRELIABILITY."  ID., AT 401, 164 A.2D, AT 712.  AGAINST THE
DEFENDANT'S CONTENTION THAT THESE CONDITIONS HAD NOT BEEN MET, THE
COURT STATED: 

"IN THE INSTANT CASE, THERE ARE NO SUCH FACTS AS, IN OUR JUDGMENT,
WOULD CALL FOR A FINDING THAT THE IDENTIFICATION  ...  WAS MADE UNDER
CONDITIONS OF UNFAIRNESS OR UNRELIABILITY.  THE RELATIVELY LARGE NUMBER
OF PERSONS PUT INTO THE ROOM TOGETHER FOR THE VICTIM TO LOOK AT IS ONE
CIRCUMSTANCE INDICATING FAIRNESS, AND THE FACT THAT THE POLICE OFFICER
WAS UNABLE TO REMEMBER THE APPEARANCES OF THE OTHERS AND COULD NOT
RECALL IF THEY HAD PHYSICAL CHARACTERISTICS SIMILAR TO THE DEFENDANT'S
OR NOT IS AT LEAST SUGGESTIVE THAT THEY WERE NOT OF ANY ONE TYPE OR
THAT THEY ALL DIFFERED MARKEDLY IN LOOKS FROM THE DEFENDANT.  THERE IS
NO EVIDENCE THAT THE POLICE SERGEANT GAVE THE COMPLAINING WITNESS ANY
INDICATION AS TO WHICH OF THE THIRTEEN MEN WAS THE DEFENDANT; THE
SERGEANT'S TESTIMONY IS SIMPLY THAT HE ASKED THE VICTIM IF HE COULD
IDENTIFY THE DEFENDANT AFTER HAVING PUT THE THIRTEEN MEN IN THE
COURTROOM." 

FN17  WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 53.  FOR
OTHER SUCH EXAMPLES SEE HOUTS, FROM EVIDENCE TO PROOF 25; FRANKFURTER,
THE CASE OF SACCO AND VANZETTI 12-14, 30-32; 3 WIGMORE, EVIDENCE SEC
786A, AT 164, N. 2 (3D ED. 1940); PAUL, IDENTIFICATION OF ACCUSED
PERSONS, 12 AUSTL.  L.J. 42, 44 (1938); ROLPH, PERSONAL IDENTITY 34
43. 

FN18  SEE PEOPLE V. JAMES, 218 CAL. APP. 2D 166, 170-171, 32 CAL.
RPTR.  283, 286 (1963); PEOPLE V. BONEY, 28 ILL. 2D 505, 192 N.E.2D 920
(1963). 

FN19  SEE FREDERICKSEN V. UNITED STATES, 105 U.S. APP. D.C. 262, 266
F.2D 463 (1959); PEOPLE V. ADELL, 75 ILL. APP. 2D 385, 221 N.E.2D 72
(1966); STATE V. HILL, 193 KAN.  512, 394 P.2D 106 (1964); PEOPLE V.
SEPPI, 221 N.Y. 62, 116 N.E. 793 (1917); STATE V. DUGGAN, 215 ORE. 
151, 162, 333 P.2D 907, 912 (1958). 

FN20  SEE PEOPLE V. CRENSHAW, 15 ILL. 2D 458, 460, 155 N.E.2D 599,
602 (1959); PRESLEY V. STATE, 224 MD. 550, 168 A.2D 510 (1961); STATE
V. RAMIREZ, 76 N.M. 72, 412 P.2D 246 (1966); STATE V. BAZEMORE, 193
N.C. 336, 137 S.E. 172 (1927); BARRETT V. STATE, 190 TENN. 366, 229
S.W.2D 516 (1950). 

FN21  SEE AARON V. STATE, 273 ALA. 337, 139 SO. 2D 309 (1961); BISHOP
V. STATE, 236 ARK. 12, 364 S.W.2D 676 (1963); PEOPLE V. THOMPSON, 406
ILL. 555, 94 N.E.2D 349 (1950); PEOPLE V. BERNE, 384 ILL. 334, 51
N.E.2D 578 (1943); PEOPLE V. MARTIN, 304 ILL. 494, 136 N.E. 711 (1922);
BARRETT V. STATE, 190 TENN. 366, 229 S.W.2D 516 (1950). 

FN22  SEE PEOPLE V. CLARK, 28 ILL. 2D 423, 192 N.E.2D 851 (1963);
GILLESPIE V. STATE, 355 P.2D 451, 454 (OKLA. CR. 1960). 

FN23  SEE PEOPLE V. PARHAM, 60 CAL. 2D 378, 384 P.2D 1001 (1963). 

FN24  SEE WALL, SUPRA, N. 6, AT 48; NAPLEY, SUPRA, N. 7, AT 99:
"WHILE MANY IDENTIFICATION PARADES ARE CONDUCTED BY THE POLICE WITH
SCRUPULOUS REGARD FOR FAIRNESS, IT IS NOT UNKNOWN FOR THE IDENTIFYING
WITNESS TO BE PLACED IN A POSITION WHERE HE CAN SEE THE SUSPECT BEFORE
THE PARADE FORMS ...  ."    FN25  WILLIAMS & HAMMELMANN, PART I, SUPRA,
N. 7, AT 486; BURTT, APPLIED PSYCHOLOGY 254-255. 

FN26  ONE COMMENTATOR PROPOSES A MODEL STATUTE PROVIDING NOT ONLY FOR
COUNSEL, BUT OTHER SAFEGUARDS AS WELL: 

"MOST, IF NOT ALL, OF THE ATTACKS ON THE LINEUP PROCESS COULD BE
AVERTED BY A UNIFORM STATUTE MODELED UPON THE BEST FEATURES OF THE
CIVILIAN CODES.  ANY PROPOSED STATUTE SHOULD PROVIDE FOR THE RIGHT TO
COUNSEL DURING ANY LINEUP OR DURING ANY CONFRONTATION.  PROVISION
SHOULD BE MADE THAT ANY PERSON, WHETHER A VICTIM OR A WITNESS, MUST
GIVE A DESCRIPTION OF THE SUSPECT BEFORE HE VIEWS ANY ARRESTED PERSON. 
A WRITTEN RECORD OF THIS DESCRIPTION SHOULD BE REQUIRED, AND THE
WITNESS SHOULD BE MADE TO SIGN IT.  THIS WRITTEN RECORD WOULD BE
AVAILABLE FOR INSPECTION BY DEFENSE COUNSEL FOR COPYING BEFORE THE
TRIAL AND FOR USE AT THE TRIAL IN TESTING THE ACCURACY OF THE
IDENTIFICATION MADE DURING THE LINEUP AND DURING THE TRIAL. 

"THIS IDEAL STATUTE WOULD REQUIRE AT LEAST SIX PERSONS IN ADDITION TO
THE ACCUSED IN A LINEUP, AND THESE PERSONS WOULD HAVE TO BE OF
APPROXIMATELY THE SAME HEIGHT, WEIGHT, COLORATION OF HAIR AND SKIN, AND
BODILY TYPES AS THE SUSPECT.  IN ADDITION, ALL OF THESE MEN SHOULD, AS
NEARLY AS POSSIBLE, BE DRESSED ALIKE.  IF DISTINCTIVE GARB WAS USED
DURING THE CRIME, THE SUSPECT SHOULD NOT BE FORCED TO WEAR SIMILAR
CLOTHING IN THE LINEUP UNLESS ALL OF THE OTHER PERSONS ARE SIMILARLY
GARBED.  A COMPLETE WRITTEN REPORT OF THE NAMES, ADDRESSES, DESCRIPTIVE
DETAILS OF THE OTHER PERSONS IN THE LINEUP, AND OF EVERYTHING WHICH
TRANSPIRED DURING THE IDENTIFICATION WOULD BE MANDATORY.  THIS REPORT
WOULD INCLUDE EVERYTHING STATED BY THE IDENTIFYING WITNESS DURING THIS
STEP, INCLUDING ANY REASONS GIVEN BY HIM AS TO WHAT FEATURES, ETC.,
HAVE SPARKED HIS RECOGNITION. 

"THIS STATUTE SHOULD PERMIT VOICE IDENTIFICATION TESTS BY HAVING EACH
PERSON IN THE LINEUP REPEAT IDENTICAL INNOCUOUS PHRASES, AND IT WOULD
BE IMPERMISSIBLE TO FORCE THE USE OF WORDS ALLEGEDLY USED DURING A
CRIMINAL ACT. 

"THE STATUTE WOULD ENJOIN THE POLICE FROM SUGGESTING TO ANY VIEWER
THAT ONE OR MORE PERSONS IN THE LINEUP HAD BEEN ARRESTED AS A SUSPECT. 
IF MORE THAN ONE WITNESS IS TO MAKE AN IDENTIFICATION, EACH WITNESS
SHOULD BE REQUIRED TO DO SO SEPARATELY AND SHOULD BE FORBIDDEN TO SPEAK
TO ANOTHER WITNESS UNTIL ALL OF THEM HAVE COMPLETED THE PROCESS. 

"THE STATUTE COULD REQUIRE THE USE OF MOVIE CAMERAS AND TAPE
RECORDERS TO RECORD THE LINEUP PROCESS IN THOSE STATES WHICH ARE
FINANCIALLY ABLE TO AFFORD THESE DEVICES.  FINALLY, THE STATUTE SHOULD
PROVIDE THAT ANY EVIDENCE OBTAINED AS THE RESULT OF A VIOLATION OF THIS
STATUTE WOULD BE INADMISSIBLE."  MURRAY, THE CRIMINAL LINEUP AT HOME
AND ABROAD, 1966 UTAH L. REV. 610, 627-628. 

FN27  ALTHOUGH THE RIGHT TO COUNSEL USUALLY MEANS A RIGHT TO THE
SUSPECT'S OWN COUNSEL, PROVISION FOR SUBSTITUTE COUNSEL MAY BE
JUSTIFIED ON THE GROUND THAT THE SUBSTITUTE COUNSEL'S PRESENCE MAY
ELIMINATE THE HAZARDS WHICH RENDER THE LINEUP A CRITICAL STAGE FOR THE
PRESENCE OF THE SUSPECT'S OWN COUNSEL. 

FN28  CONCERN IS ALSO EXPRESSED THAT THE PRESENCE OF COUNSEL WILL
FORCE DIVULGENCE OF THE IDENTITY OF GOVERNMENT WITNESSES WHOSE IDENTITY
THE GOVERNMENT MAY WANT TO CONCEAL.  TO THE EXTENT THAT THIS IS A VALID
OR SIGNIFICANT STATE INTEREST THERE ARE POLICE PRACTICES COMMONLY USED
TO EFFECT CONCEALMENT, FOR EXAMPLE, MASKING THE FACE. 

FN29  MANY OTHER NATIONS SURROUND THE LINEUP WITH SAFEGUARDS AGAINST
PREJUDICE TO THE SUSPECT.  IN ENGLAND THE SUSPECT MUST BE ALLOWED THE
PRESENCE OF HIS SOLICITOR OR A FRIEND, NAPLEY, SUPRA, N. 7, AT 98-99;
GERMANY REQUIRES THE PRESENCE OF RETAINED COUNSEL; FRANCE FORBIDS THE
CONFRONTATION OF THE SUSPECT IN THE ABSENCE OF HIS COUNSEL; SPAIN,
MEXICO, AND ITALY PROVIDE DETAILED PROCEDURES PRESCRIBING THE
CONDITIONS UNDER WHICH CONFRONTATION MUST OCCUR UNDER THE SUPERVISION
OF A JUDICIAL OFFICER WHO SEES TO IT THAT THE PROCEEDINGS ARE
OFFICIALLY RECORDED TO ASSURE ADEQUATE SCRUTINY AT TRIAL.  MURRAY, THE
CRIMINAL LINEUP AT HOME AND ABROAD, 1966 UTAH L. REV. 610, 621-627. 

FN30  THIRTY YEARS AGO WIGMORE SUGGESTED A "SCIENTIFIC METHOD" OF
PRETRIAL IDENTIFICATION "TO REDUCE THE RISK OF ERROR HITHERTO INHERENT
IN SUCH PROCEEDINGS."  WIGMORE, THE SCIENCE OF JUDICIAL PROOF 541 (3D
ED. 1937).  UNDER THIS APPROACH, AT LEAST 100 TALKING FILMS WOULD BE
PREPARED OF MEN FROM VARIOUS OCCUPATIONS, RACES, ETC.  EACH WOULD BE
PHOTOGRAPHED IN A NUMBER OF STOCK MOVEMENTS, WITH AND WITHOUT HAT AND
COAT, AND WOULD READ ALOUD A STANDARD PASSAGE.  THE SUSPECT WOULD BE
FILMED IN THE SAME MANNER.  SOME 25 OF THE FILMS WOULD BE SHOWN IN
SUCCESSION IN A SPECIAL PROJECTION ROOM IN WHICH EACH WITNESS WOULD BE
PROVIDED AN ELECTRIC BUTTON WHICH WOULD ACTIVATE A BOARD BACKSTAGE WHEN
PRESSED TO INDICATE THAT THE WITNESS HAD IDENTIFIED A GIVEN PERSON. 
PROVISION WOULD BE MADE FOR THE DEGREE OF HESITANCY IN THE
IDENTIFICATION TO BE INDICATED BY THE NUMBER OF PRESSES.  ID., AT 540
541.  OF COURSE, THE MORE SYSTEMATIC AND SCIENTIFIC A PROCESS OR
PROCEEDING, INCLUDING ONE FOR PURPOSES OF IDENTIFICATION, THE LESS THE
IMPEDIMENT TO RECONSTRUCTION OF THE CONDITIONS BEARING UPON THE
RELIABILITY OF THAT PROCESS OR PROCEEDING AT TRIAL.  SEE DISCUSSION OF
FINGERPRINT AND LIKE TESTS, PART III, SUPRA, AND OF HANDWRITING
EXEMPLARS IN GILBERT V. CALIFORNIA, SUPRA. 

FN31  SEE GOLDSTEIN V. UNITED STATES, 316 U.S. 114, 124, N. 1
(MURPHY, J., DISSENTING).  "AFTER AN ACCUSED SUSTAINS THE INITIAL
BURDEN, IMPOSED BY NARDONE V. UNITED STATES, 308 U.S. 338, OF PROVING
TO THE SATISFACTION OF THE TRIAL JUDGE IN THE PRELIMINARY HEARING THAT
WIRE-TAPPING WAS UNLAWFULLY EMPLOYED, AS PETITIONERS DID HERE, IT IS
ONLY FAIR THAT THE BURDEN SHOULD THEN SHIFT TO THE GOVERNMENT TO
CONVINCE THE TRIAL JUDGE THAT ITS PROOF HAD AN INDEPENDENT ORIGIN." 

FN32  WE REACH A CONTRARY CONCLUSION IN GILBERT V. CALIFORNIA, SUPRA,
AS TO THE ADMISSIBILITY OF THE WITNESS' TESTIMONY THAT HE ALSO
IDENTIFIED THE ACCUSED AT THE LINEUP. 

FN33  THUS IT IS NOT THE CASE THAT "IT MATTERS NOT HOW WELL THE
WITNESS KNOWS THE SUSPECT, WHETHER THE WITNESS IS THE SUSPECT'S MOTHER,
BROTHER, OR LONG-TIME ASSOCIATE, AND NO MATTER HOW LONG OR WELL THE
WITNESS OBSERVED THE PERPETRATOR AT THE SCENE OF THE CRIME."  SUCH
FACTORS WILL HAVE AN IMPORTANT BEARING UPON THE TRUE BASIS OF THE
WITNESS' IN-COURT IDENTIFICATION.  MOREOVER, THE STATE'S INABILITY TO
BOLSTER THE WITNESS' COURTROOM IDENTIFICATION BY INTRODUCTION OF THE
LINEUP IDENTIFICATION ITSELF, SEE GILBERT V. CALIFORNIA, SUPRA, WILL
BECOME LESS SIGNIFICANT THE MORE THE EVIDENCE OF OTHER OPPORTUNITIES OF
THE WITNESS TO OBSERVE THE DEFENDANT.  THUS WHERE THE WITNESS IS A
"KIDNAP VICTIM WHO HAS LIVED FOR DAYS WITH HIS ABDUCTOR" THE VALUE TO
THE STATE OF ADMISSION OF THE LINEUP IDENTIFICATION IS INDEED MARGINAL,
AND SUCH IDENTIFICATION WOULD BE A MERE FORMALITY. 

THE CHIEF JUSTICE JOINS THE OPINION OF THE COURT EXCEPT FOR PART I,
FROM WHICH HE DISSENTS FOR THE REASONS EXPRESSED IN THE OPINION OF MR.
JUSTICE FORTAS. 

MR. JUSTICE DOUGLAS JOINS THE OPINION OF THE COURT EXCEPT FOR PART I.
ON THAT PHASE OF THE CASE HE ADHERES TO THE DISSENTING VIEWS IN
SCHMERBER V. CALIFORNIA, 384 U.S. 757, 772-779, SINCE HE BELIEVES THAT
COMPULSORY LINEUP VIOLATES THE PRIVILEGE AGAINST SELF-INCRIMINATION
CONTAINED IN THE FIFTH AMENDMENT. 

MR. JUSTICE CLARK, CONCURRING. 

WITH REFERENCE TO THE LINEUP POINT INVOLVED IN THIS CASE I CANNOT,
FOR THE LIFE OF ME, SEE WHY A LINEUP IS NOT A CRITICAL STAGE OF THE
PROSECUTION.  IDENTIFICATION OF THE SUSPECT - A PREREQUISITE TO
ESTABLISHMENT OF GUILT - OCCURS AT THIS STAGE, AND WITH MIRANDA V.
ARIZONA, 384 U.S. 436 (1966), ON THE BOOKS, THE REQUIREMENT OF THE
PRESENCE OF COUNSEL ARISES, UNLESS WAIVED BY THE SUSPECT.  I DISSENTED
IN MIRANDA BUT I AM BOUND BY IT NOW, AS WE ALL ARE.  SCHMERBER V.
CALIFORNIA, 384 U.S. 757 (1966), PRECLUDES PETITIONER'S CLAIM OF SELF
INCRIMINATION.  I THEREFORE JOIN THE OPINION OF THE COURT. 

MR. JUSTICE BLACK, DISSENTING IN PART AND CONCURRING IN PART. 

ON MARCH 23, 1965, RESPONDENT WADE WAS INDICTED FOR ROBBING A BANK;
ON APRIL 2, HE WAS ARRESTED; AND ON APRIL 26, THE COURT APPOINTED A
LAWYER TO REPRESENT HIM.  FIFTEEN DAYS LATER, WHILE WADE WAS STILL IN
CUSTODY, AN FBI AGENT TOOK HIM AND SEVERAL OTHER PRISONERS INTO A ROOM
AT THE COURTHOUSE, DIRECTED EACH TO PARTICIPATE IN A LINEUP WEARING
STRIPS OF TAPE ON HIS FACE AND TO SPEAK THE WORDS USED BY THE ROBBER AT
THE BANK.  THIS WAS ALL DONE IN ORDER TO LET THE BANK EMPLOYEE
WITNESSES LOOK AT WADE FOR IDENTIFICATION PURPOSES.  WADE'S LAWYER WAS
NOT NOTIFIED OF OR PRESENT AT THE LINEUP TO PROTECT HIS CLIENT'S
INTERESTS.  AT WADE'S TRIAL, TWO BANK EMPLOYEES IDENTIFIED HIM IN THE
COURTROOM.  WADE OBJECTED TO THIS TESTIMONY, WHEN, ON CROSS
EXAMINATION, HIS COUNSEL ELICITED FROM THESE WITNESSES THE FACT THAT
THEY HAD SEEN WADE IN THE LINEUP.  HE CONTENDED THAT BY FORCING HIM TO
PARTICIPATE IN THE LINEUP, WEAR STRIPS OF TAPE ON HIS FACE, AND REPEAT
THE WORDS USED BY THE ROBBER, ALL WITHOUT COUNSEL, THE GOVERNMENT HAD
(1) COMPELLED HIM TO BE A WITNESS AGAINST HIMSELF IN VIOLATION OF THE
FIFTH AMENDMENT, AND (2) DEPRIVED HIM OF THE ASSISTANCE OF COUNSEL FOR
HIS DEFENSE IN VIOLATION OF THE SIXTH AMENDMENT. 

THE COURT IN PART I OF ITS OPINION REJECTS WADE'S FIFTH AMENDMENT
CONTENTION.  FROM THAT I DISSENT.  IN PARTS II-IV OF ITS OPINION, THE
COURT SUSTAINS WADE'S CLAIM OF DENIAL OF RIGHT TO COUNSEL IN THE OUT-OF
COURT LINEUP, AND IN THAT I CONCUR.  IN PART V, THE COURT REMANDS THE
CASE TO THE DISTRICT COURT TO CONSIDER WHETHER THE COURTROOM
IDENTIFICATION OF WADE WAS THE FRUIT OF THE ILLEGAL LINEUP, AND, IF IT
WAS, TO GRANT HIM A NEW TRIAL UNLESS THE COURT CONCLUDES THAT THE
COURTROOM IDENTIFICATION WAS HARMLESS ERROR.  I WOULD REVERSE THE COURT
OF APPEALS' REVERSAL OF WADE'S CONVICTION, BUT I WOULD NOT REMAND FOR
FURTHER PROCEEDINGS.  SINCE THE PROSECUTION DID NOT USE THE OUT-OF
COURT LINEUP IDENTIFICATION AGAINST WADE AT HIS TRIAL, I BELIEVE THE
CONVICTION SHOULD BE AFFIRMED. 

                                  I. 

IN REJECTING WADE'S CLAIM THAT HIS PRIVILEGE AGAINST SELF
INCRIMINATION WAS VIOLATED BY COMPELLING HIM TO APPEAR IN THE LINEUP
WEARING THE TAPE AND UTTERING THE WORDS GIVEN HIM BY THE POLICE, THE
COURT RELIES ON THE RECENT HOLDING IN SCHMERBER V. CALIFORNIA, 384 U.S.
757.  IN THAT CASE THE COURT HELD THAT TAKING BLOOD FROM A MAN'S BODY
AGAINST HIS WILL IN ORDER TO CONVICT HIM OF A CRIME DID NOT COMPEL HIM
TO BE A WITNESS AGAINST HIMSELF.  I DISSENTED FROM THAT HOLDING, 384
U.S., AT 773, AND STILL DISSENT.  THE COURT'S REASON FOR ITS HOLDING
WAS THAT THE SAMPLE OF SCHMERBER'S BLOOD TAKEN IN ORDER TO CONVICT HIM
OF CRIME WAS NEITHER "TESTIMONIAL" NOR "COMMUNICATIVE" EVIDENCE.  I
THINK IT WAS BOTH.  IT SEEMS QUITE PLAIN TO ME THAT THE FIFTH
AMENDMENT'S SELF-INCRIMINATION CLAUSE WAS DESIGNED TO BAR THE
GOVERNMENT FROM FORCING ANY PERSON TO SUPPLY PROOF OF HIS OWN CRIME,
PRECISELY WHAT SCHMERBER WAS FORCED TO DO WHEN HE WAS FORCED TO SUPPLY
HIS BLOOD.  THE GOVERNMENT SIMPLY TOOK HIS BLOOD AGAINST HIS WILL AND
OVER HIS COUNSEL'S PROTEST FOR THE PURPOSE OF CONVICTING HIM OF CRIME. 
SO HERE, HAVING WADE IN ITS CUSTODY AWAITING TRIAL TO SEE IF HE COULD
OR WOULD BE CONVICTED OF CRIME, THE GOVERNMENT FORCED HIM TO STAND IN A
LINEUP, WEAR STRIPS ON HIS FACE, AND SPEAK CERTAIN WORDS, IN ORDER TO
MAKE IT POSSIBLE FOR GOVERNMENT WITNESSES TO IDENTIFY HIM AS A
CRIMINAL.  HAD WADE BEEN COMPELLED TO UTTER THESE OR ANY OTHER WORDS IN
OPEN COURT, IT IS PLAIN THAT HE WOULD HAVE BEEN ENTITLED TO A NEW TRIAL
BECAUSE OF HAVING BEEN COMPELLED TO BE A WITNESS AGAINST HIMSELF. 
BEING FORCED BY THE GOVERNMENT TO HELP CONVICT HIMSELF AND TO SUPPLY
EVIDENCE AGAINST HIMSELF BY TALKING OUTSIDE THE COURTROOM IS EQUALLY
VIOLATIVE OF HIS CONSTITUTIONAL RIGHT NOT TO BE COMPELLED TO BE A
WITNESS AGAINST HIMSELF.  CONSEQUENTLY, BECAUSE OF THIS VIOLATION OF
THE FIFTH AMENDMENT, AND NOT BECAUSE OF MY OWN PERSONAL VIEW THAT THE
GOVERNMENT'S CONDUCT WAS "UNFAIR," "PREJUDICIAL," OR "IMPROPER," I
WOULD PROHIBIT THE PROSECUTION'S USE OF LINEUP IDENTIFICATION AT
TRIAL. 

  II. 

I AGREE WITH THE COURT, IN LARGE PART BECAUSE OF THE REASONS IT
GIVES, THAT FAILURE TO NOTIFY WADE'S COUNSEL THAT WADE WAS TO BE PUT IN
A LINEUP BY GOVERNMENT OFFICERS AND TO BE FORCED TO TALK AND WEAR TAPE
ON HIS FACE DENIED WADE THE RIGHT TO COUNSEL IN VIOLATION OF THE SIXTH
AMENDMENT.  ONCE AGAIN, MY REASON FOR THIS CONCLUSION IS SOLELY THE
SIXTH AMENDMENT'S GUARANTEE THAT "THE ACCUSED SHALL ENJOY THE RIGHT
...  TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE."  AS THIS
COURT'S OPINION POINTS OUT, "THE PLAIN WORDING OF THIS GUARANTEE THUS
ENCOMPASSES COUNSEL'S ASSISTANCE WHENEVER NECESSARY TO ASSURE A
MEANINGFUL 'DEFENCE.'"  AND I AGREE WITH THE COURT THAT A LINEUP IS A
"CRITICAL STAGE" OF THE CRIMINAL PROCEEDINGS AGAINST AN ACCUSED,
BECAUSE IT IS A STAGE AT WHICH THE GOVERNMENT MAKES USE OF HIS CUSTODY
TO OBTAIN CRUCIAL EVIDENCE AGAINST HIM.  BESIDES COUNSEL'S PRESENCE AT
THE LINEUP BEING NECESSARY TO PROTECT THE DEFENDANT'S SPECIFIC
CONSTITUTIONAL RIGHTS TO CONFRONTATION AND THE ASSISTANCE OF COUNSEL AT
THE TRIAL ITSELF, THE ASSISTANCE OF COUNSEL AT THE LINEUP IS ALSO
NECESSARY TO PROTECT THE DEFENDANT'S IN-CUSTODY ASSERTION OF HIS
PRIVILEGE AGAINST SELF-INCRIMINATION, MIRANDA V. ARIZONA, 384 U.S. 436,
FOR, CONTRARY TO THE COURT, I BELIEVE THAT COUNSEL MAY ADVISE THE
DEFENDANT NOT TO PARTICIPATE IN THE LINEUP OR TO PARTICIPATE ONLY UNDER
CERTAIN CONDITIONS. 

I AGREE WITH THE COURT THAT COUNSEL'S PRESENCE AT THE LINEUP IS
NECESSARY TO PROTECT THE ACCUSED'S RIGHT TO A "FAIR TRIAL," ONLY IF BY
"FAIR TRIAL" THE COURT MEANS A TRIAL IN ACCORDANCE WITH THE "LAW OF THE
LAND" AS SPECIFICALLY SET OUT IN THE CONSTITUTION.  BUT THERE ARE
IMPLICATIONS IN THE COURT'S OPINION THAT BY A "FAIR TRIAL" THE COURT
MEANS A TRIAL WHICH A MAJORITY OF THIS COURT DEEMS TO BE "FAIR" AND
THAT A LINEUP IS A "CRITICAL STAGE" ONLY BECAUSE THE COURT, NOW
ASSESSING THE "INNUMERABLE DANGERS" WHICH INHERE IN IT, THINKS IT IS
SUCH.  THAT THESE IMPLICATIONS ARE JUSTIFIED IS EVIDENCED BY THE
COURT'S SUGGESTION THAT "LEGISLATIVE OR OTHER REGULATIONS  ...  WHICH
ELIMINATE THE RISKS OF ABUSE  ...  AT LINEUP PROCEEDINGS  ...  MAY ALSO
REMOVE THE BASIS FOR REGARDING THE STAGE AS 'CRITICAL.'"  AND IT IS
CLEAR FROM THE COURT'S OPINION IN GILBERT V. CALIFORNIA, POST, P. 263,
THAT IT IS WILLING TO MAKE THE SIXTH AMENDMENT'S GUARANTEE OF RIGHT TO
COUNSEL DEPENDENT ON THE COURT'S OWN VIEW OF WHETHER A PARTICULAR STAGE
OF THE PROCEEDINGS - THOUGH "CRITICAL" IN THE SENSE OF THE
PROSECUTION'S GATHERING OF EVIDENCE - IS "CRITICAL" TO THE COURT'S OWN
VIEW OF A "FAIR TRIAL."  I AM WHOLLY UNWILLING TO MAKE THE SPECIFIC
CONSTITUTIONAL RIGHT OF COUNSEL DEPENDENT ON JUDGES' VAGUE AND
TRANSITORY NOTIONS OF FAIRNESS AND THEIR EQUALLY TRANSITORY, THOUGH
THOUGHT TO BE EMPIRICAL, ASSESSMENT OF THE "RISK THAT  ...  COUNSEL'S
ABSENCE  ...  MIGHT DEROGATE FROM  ...  A DEFENDANT'S RIGHT TO A FAIR
TRIAL."  ANTE, AT 228.  SEE POINTER V. TEXAS, 380 U.S. 400, 412
(CONCURRING OPINION OF GOLDBERG, J.). 

                                 III. 

I WOULD REVERSE WADE'S CONVICTION WITHOUT FURTHER ADO HAD THE
PROSECUTION AT TRIAL MADE USE OF HIS LINEUP IDENTIFICATION EITHER IN
PLACE OF COURTROOM IDENTIFICATION OR TO BOLSTER IN A HARMFUL MANNER
CRUCIAL COURTROOM IDENTIFICATION.  BUT THE PROSECUTION HERE DID NEITHER
OF THESE THINGS.  AFTER PROSECUTION WITNESSES UNDER OATH IDENTIFIED
WADE IN THE COURTROOM, IT WAS THE DEFENSE, AND NOT THE PROSECUTION,
WHICH BROUGHT OUT THE PRIOR LINEUP IDENTIFICATION.  WHILE STATING THAT
"A PER SE RULE OF EXCLUSION OF COURTROOM IDENTIFICATION WOULD BE
UNJUSTIFIED," THE COURT, NEVERTHELESS, REMANDS THIS CASE FOR "A HEARING
TO DETERMINE WHETHER THE IN-COURT IDENTIFICATIONS HAD AN INDEPENDENT
SOURCE," OR WERE THE TAINTED FRUITS OF THE INVALIDLY CONDUCTED LINEUP. 
FROM THIS HOLDING I DISSENT. 

IN THE FIRST PLACE, EVEN IF THIS COURT HAS POWER TO ESTABLISH SUCH A
RULE OF EVIDENCE, I THINK THE RULE FASHIONED BY THE COURT IS UNSOUND. 
THE "TAINTED FRUIT" DETERMINATION REQUIRED BY THE COURT INVOLVES MORE
THAN CONSIDERABLE DIFFICULTY.  I THINK IT IS PRACTICALLY IMPOSSIBLE. 
HOW IS A WITNESS CAPABLE OF PROBING THE RECESSES OF HIS MIND TO DRAW A
SHARP LINE BETWEEN A COURTROOM IDENTIFICATION DUE EXCLUSIVELY TO AN
EARLIER LINEUP AND A COURTROOM IDENTIFICATION DUE TO MEMORY NOT BASED
ON THE LINEUP?  WHAT KIND OF "CLEAR AND CONVINCING EVIDENCE" CAN THE
PROSECUTION OFFER TO PROVE UPON WHAT PARTICULAR EVENTS MEMORIES
RESULTING IN AN IN-COURT IDENTIFICATION REST?  HOW LONG WILL TRIALS BE
DELAYED WHILE JUDGES TURN PSYCHOLOGISTS TO PROBE THE SUBCONSCIOUS MINDS
OF WITNESSES?  ALL THESE QUESTIONS ARE POSED BUT NOT ANSWERED BY THE
COURT'S OPINION.  IN MY VIEW, THE FIFTH AND SIXTH AMENDMENTS ARE
SATISFIED IF THE PROSECUTION IS PRECLUDED FROM USING LINEUP
IDENTIFICATION AS EITHER AN ALTERNATIVE TO OR CORROBORATION OF
COURTROOM IDENTIFICATION.  IF THE PROSECUTION DOES NEITHER AND ITS
WITNESSES UNDER OATH IDENTIFY THE DEFENDANT IN THE COURTROOM, THEN I
CAN FIND NO JUSTIFICATION FOR STOPPING THE TRIAL IN MIDSTREAM TO HOLD A
LENGTHY "TAINTED FRUIT" HEARING.  THE FACT OF AND CIRCUMSTANCES
SURROUNDING A PRIOR LINEUP IDENTIFICATION MIGHT BE USED BY THE DEFENSE
TO IMPEACH THE CREDIBILITY OF THE IN-COURT IDENTIFICATIONS, BUT NOT TO
EXCLUDE THEM COMPLETELY. 

BUT MORE IMPORTANT, THERE IS NO CONSTITUTIONAL PROVISION UPON WHICH I
CAN RELY THAT DIRECTLY OR BY IMPLICATION GIVES THIS COURT POWER TO
ESTABLISH WHAT AMOUNTS TO A CONSTITUTIONAL RULE OF EVIDENCE TO GOVERN,
NOT ONLY THE FEDERAL GOVERNMENT, BUT THE STATES IN THEIR TRIAL OF STATE
CRIMES UNDER STATE LAWS IN STATE COURTS.  SEE GILBERT V. CALIFORNIA,
SUPRA.  THE CONSTITUTION DELIBERATELY REPOSED IN THE STATES VERY BROAD
POWER TO CREATE AND TO TRY CRIMES ACCORDING TO THEIR OWN RULES AND
POLICIES.  SPENCER V. TEXAS, 385 U.S. 554.  BEFORE BEING DEPRIVED OF
THIS POWER, THE LEAST THAT THEY CAN ASK IS THAT WE SHOULD BE ABLE TO
POINT TO A FEDERAL CONSTITUTIONAL PROVISION THAT EITHER BY EXPRESS
LANGUAGE OR BY NECESSARY IMPLICATION GRANTS US THE POWER TO FASHION
THIS NOVEL RULE OF EVIDENCE TO GOVERN THEIR CRIMINAL TRIALS.  CF.
BERGER V. NEW YORK, ANTE, P. 70 (BLACK, J., DISSENTING).  NEITHER
NARDONE V. UNITED STATES, 308 U.S. 338, NOR WONG SUN V. UNITED STATES,
371 U.S. 471, BOTH FEDERAL CASES AND BOTH DECIDED "IN OTHER CONTEXTS,"
SUPPORTS WHAT THE COURT DEMANDS OF THE STATES TODAY. 

PERHAPS THE COURT PRESUMES TO WRITE THIS CONSITUTIONAL RULE OF
EVIDENCE ON THE BASIS OF THE FOURTEENTH AMENDMENT'S DUE PROCESS
CLAUSE.  THIS IS NOT THE TIME OR PLACE TO CONSIDER THAT CLAIM.  SUFFICE
IT FOR ME TO SAY BRIEFLY THAT I FIND NO SUCH AUTHORITY IN THE DUE
PROCESS CLAUSE.  IT UNDOUBTEDLY PROVIDES THAT A PERSON MUST BE TRIED IN
ACCORDANCE WITH THE "LAW OF THE LAND."  CONSEQUENTLY, IT VIOLATES DUE
PROCESS TO TRY A PERSON IN A WAY PROHIBITED BY THE FOURTH, FIFTH, OR
SIXTH AMENDMENTS OF OUR WRITTEN CONSTITUTION.  BUT I HAVE NEVER BEEN
ABLE TO SUBSCRIBE TO THE DOGMA THAT THE DUE PROCESS CLAUSE EMPOWERS
THIS COURT TO DECLARE ANY LAW, INCLUDING A RULE OF EVIDENCE,
UNCONSTITUTIONAL WHICH IT BELIEVES IS CONTRARY TO TRADITION, DECENCY,
FUNDAMENTAL JUSTICE, OR ANY OF THE OTHER WIDE-MEANING WORDS USED BY
JUDGES TO CLAIM POWER UNDER THE DUE PROCESS CLAUSE.  SEE, E.G., ROCHIN
V. CALIFORNIA, 342 U.S. 165.  I HAVE AN ABIDING IDEA THAT IF THE
FRAMERS HAD WANTED TO LET JUDGES WRITE THE CONSTITUTION ON ANY SUCH DAY
TO-DAY BELIEFS OF THEIRS, THEY WOULD HAVE SAID SO INSTEAD OF SO
CAREFULLY DEFINING THEIR GRANTS AND PROHIBITIONS IN A WRITTEN
CONSTITUTION.  WITH NO MORE AUTHORITY THAN THE DUE PROCESS CLAUSE I AM
WHOLLY UNWILLING TO TELL THE STATE OR FEDERAL COURTS THAT THE UNITED
STATES CONSTITUTION FORBIDS THEM TO ALLOW COURTROOM IDENTIFICATION
WITHOUT THE PROSECUTION'S FIRST PROVING THAT THE IDENTIFICATION DOES
NOT REST IN WHOLE OR IN PART ON AN ILLEGAL LINEUP.  SHOULD I DO SO, I
WOULD FEEL THAT WE ARE DECIDING WHAT THE CONSTITUTION IS, NOT FROM WHAT
IT SAYS, BUT FROM WHAT WE THINK IT WOULD HAVE BEEN WISE FOR THE FRAMERS
TO PUT IN IT.  THAT TO ME WOULD BE "JUDICIAL ACTIVISM" AT ITS WORST.  I
WOULD LEAVE THE STATES AND FEDERAL GOVERNMENT FREE TO DECIDE THEIR OWN
RULES OF EVIDENCE.  THAT, I BELIEVE, IS THEIR CONSITUTIONAL
PREROGATIVE. 

I WOULD AFFIRM WADE'S CONVICTION. 

MR. JUSTICE WHITE, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE STEWART
JOIN, DISSENTING IN PART AND CONCURRING IN PART. 

THE COURT HAS AGAIN PROPOUNDED A BROAD CONSTITUTIONAL RULE BARRING
USE OF A WIDE SPECTRUM OF RELEVANT AND PROBATIVE EVIDENCE, SOLELY
BECAUSE A STEP IN ITS ASCERTAINMENT OR DISCOVERY OCCURS OUTSIDE THE
PRESENCE OF DEFENSE COUNSEL.  THIS WAS THE APPROACH OF THE COURT IN
MIRANDA V. ARIZONA, 384 U.S. 436.  I OBJECTED THEN TO WHAT I THOUGHT
WAS AN UNCRITICAL AND DOCTRINAIRE APPROACH WITHOUT SATISFACTORY FACTUAL
FOUNDATION.  I HAVE MUCH THE SAME VIEW OF THE PRESENT RULING AND
THEREFORE DISSENT FROM THE JUDGMENT AND FROM PARTS II, IV, AND V OF THE
COURT'S OPINION. 

THE COURT'S OPINION IS FAR-REACHING.  IT PROCEEDS FIRST BY CREATING A
NEW PER SE RULE OF CONSTITUTIONAL LAW:  A CRIMINAL SUSPECT CANNOT BE
SUBJECTED TO A PRETRIAL IDENTIFICATION PROCESS IN THE ABSENCE OF HIS
COUNSEL WITHOUT VIOLATING THE SIXTH AMENDMENT.  IF HE IS, THE STATE MAY
NOT BUTTRESS A LATER COURTROOM IDENTIFICATION OF THE WITNESS BY ANY
REFERENCE TO THE PREVIOUS IDENTIFICATION.  FURTHERMORE, THE COURTROOM
IDENTIFICATION IS NOT ADMISSIBLE AT ALL UNLESS THE STATE CAN ESTABLISH
BY CLEAR AND CONVINCING PROOF THAT THE TESTIMONY IS NOT THE FRUIT OF
THE EARLIER IDENTIFICATION MADE IN THE ABSENCE OF DEFENDANT'S COUNSEL -
ADMITTEDLY A HEAVY BURDEN FOR THE STATE AND PROBABLY AN IMPOSSIBLE
ONE.  TO ALL INTENTS AND PURPOSES, COURTROOM IDENTIFICATIONS ARE BARRED
IF PRETRIAL IDENTIFICATIONS HAVE OCCURRED WITHOUT COUNSEL BEING
PRESENT. 

THE RULE APPLIES TO ANY LINEUP, TO ANY OTHER TECHNIQUES EMPLOYED TO
PRODUCE AN IDENTIFICATION AND A FORTIORI TO A FACE-TO-FACE ENCOUNTER
BETWEEN THE WITNESS AND THE SUSPECT ALONE, REGARDLESS OF WHEN THE
IDENTIFICATION OCCURS, IN TIME OR PLACE, AND WHETHER BEFORE OR AFTER
INDICTMENT OR INFORMATION.  IT MATTERS NOT HOW WELL THE WITNESS KNOWS
THE SUSPECT, WHETHER THE WITNESS IS THE SUSPECT'S MOTHER, BROTHER, OR
LONG-TIME ASSOCIATE, AND NO MATTER HOW LONG OR WELL THE WITNESS
OBSERVED THE PERPETRATOR AT THE SCENE OF THE CRIME.  THE KIDNAP VICTIM
WHO HAS LIVED FOR DAYS WITH HIS ABDUCTOR IS IN THE SAME CATEGORY AS THE
WITNESS WHO HAS HAD ONLY A FLEETING GLIMPSE OF THE CRIMINAL.  NEITHER
MAY IDENTIFY THE SUSPECT WITHOUT DEFENDANT'S COUNSEL BEING PRESENT. 
THE SAME STRICTURES APPLY REGARDLESS OF THE NUMBER OF OTHER WITNESSES
WHO POSITIVELY IDENTIFY THE DEFENDANT AND REGARDLESS OF THE
CORROBORATIVE EVIDENCE SHOWING THAT IT WAS THE DEFENDANT WHO HAD
COMMITTED THE CRIME. 

THE PREMISE FOR THE COURT'S RULE IS NOT THE GENERAL UNRELIABILITY OF
EYEWITNESS IDENTIFICATIONS NOR THE DIFFICULTIES INHERENT IN
OBSERVATION, RECALL, AND RECOGNITION.  THE COURT ASSUMES A NARROWER
EVIL AS THE BASIS FOR ITS RULE - IMPROPER POLICE SUGGESTION WHICH
CONTRIBUTES TO ERRONEOUS IDENTIFICATIONS.  THE COURT APPARENTLY
BELIEVES THAT IMPROPER POLICE PROCEDURES ARE SO WIDESPREAD THAT A BROAD
PROPHYLACTIC RULE MUST BE LAID DOWN, REQUIRING THE PRESENCE OF COUNSEL
AT ALL PRETRIAL IDENTIFICATIONS, IN ORDER TO DETECT RECURRING INSTANCES
OF POLICE MISCONDUCT.  (FN1)  I DO NOT SHARE THIS PERVASIVE DISTRUST OF
ALL OFFICIAL INVESTIGATIONS.  NONE OF THE MATERIALS THE COURT RELIES
UPON SUPPORTS IT.  (FN2)  CERTAINLY, I WOULD BOW TO SOLID FACT, BUT THE
COURT QUITE OBVIOUSLY DOES NOT HAVE BEFORE IT ANY RELIABLE,
COMPREHENSIVE SURVEY OF CURRENT POLICE PRACTICES ON WHICH TO BASE ITS
NEW RULE.  UNTIL IT DOES, THE COURT SHOULD AVOID EXCLUDING RELEVENT
EVIDENCE FROM STATE CRIMINAL TRIALS.  CF. WASHINGTON V. TEXAS, ANTE, P.
14. 

THE COURT GOES BEYOND ASSUMING THAT A GREAT MAJORITY OF THE COUNTRY'S
POLICE DEPARTMENTS ARE FOLLOWING IMPROPER PRACTICES AT PRETRIAL
IDENTIFICATIONS.  TO FIND THE LINEUP A "CRITICAL" STAGE OF THE
PROCEEDING AND TO EXCLUDE IDENTIFICATIONS MADE IN THE ABSENCE OF
COUNSEL, THE COURT MUST ALSO ASSUME THAT POLICE "SUGGESTION," IF IT
OCCURS AT ALL, LEADS TO ERRONEOUS RATHER THAN ACCURATE IDENTIFICATIONS
AND THAT REPREHENSIBLE POLICE CONDUCT WILL HAVE AN UNAVOIDABLE AND
LARGELY UNDISCOVERABLE IMPACT ON THE TRIAL.  THIS IN TURN ASSUMES THAT
THERE IS NOW NO ADEQUATE SOURCE FROM WHICH DEFENSE COUNSEL CAN LEARN
ABOUT THE CIRCUMSTANCES OF THE PRETRIAL IDENTIFICATION IN ORDER TO
PLACE BEFORE THE JURY ALL OF THE CONSIDERATIONS WHICH SHOULD ENTER INTO
AN APPRAISAL OF COURTROOM IDENTIFICATION EVIDENCE.  BUT THESE ARE
TREACHEROUS AND UNSUPPORTED ASSUMPTIONS, (FN3) RESTING AS THEY DO ON
THE NOTION THAT THE DEFENDANT WILL NOT BE AWARE, THAT THE POLICE AND
THE WITNESSES WILL FORGET OR PREVARICATE, THAT DEFENSE COUNSEL WILL BE
UNABLE TO BRING OUT THE TRUTH AND THAT NEITHER JURY, JUDGE, NOR
APPELLATE COURT IS A SUFFICIENT SAFEGUARD AGAINST UNACCEPTABLE POLICE
CONDUCT OCCURRING AT A PRETRIAL IDENTIFICATION PROCEDURE.  I AM UNABLE
TO SHARE THE COURT'S VIEW OF THE WILLINGNESS OF THE POLICE AND THE
ORDINARY CITIZEN-WITNESS TO DISSEMBLE, EITHER WITH RESPECT TO THE
IDENTIFICATION OF THE DEFENDANT OR WITH RESPECT TO THE CIRCUMSTANCES
SURROUNDING A PRETRIAL IDENTIFICATION. 

THERE ARE SEVERAL STRIKING ASPECTS TO THE COURT'S HOLDING.  FIRST,
THE RULE DOES NOT BAR COURTROOM IDENTIFICATIONS WHERE THERE HAVE BEEN
NO PREVIOUS IDENTIFICATIONS IN THE PRESENCE OF THE POLICE, ALTHOUGH
WHEN IDENTIFIED IN THE COURTROOM, THE DEFENDANT IS KNOWN TO BE IN
CUSTODY AND CHARGED WITH THE COMMISSION OF A CRIME.  SECOND, THE COURT
SEEMS TO SAY THAT IF SUITABLE LEGISLATIVE STANDARDS WERE ADOPTED FOR
THE CONDUCT OF PRETRIAL IDENTIFICATIONS, THEREBY LESSENING THE HAZARDS
IN SUCH CONFRONTATIONS, IT WOULD NOT INSIST ON THE PRESENCE OF
COUNSEL.  BUT IF THIS IS TRUE, WHY DOES NOT THE COURT SIMPLY FASHION
WHAT IT DEEMS TO BE CONSTITUTIONALLY ACCEPTABLE PROCEDURES FOR THE
AUTHORITIES TO FOLLOW?  CERTAINLY THE COURT IS CORRECT IN SUGGESTING
THAT THE NEW RULE WILL BE WHOLLY INAPPLICABLE WHERE POLICE DEPARTMENTS
THEMSELVES HAVE ESTABLISHED SUITABLE SAFEGUARDS. 

THIRD, COURTROOM IDENTIFICATION MAY BE BARRED, ABSENT COUNSEL AT A
PRIOR IDENTIFICATION, REGARDLESS OF THE EXTENT OF COUNSEL'S INFORMATION
CONCERNING THE CIRCUMSTANCES OF THE PREVIOUS CONFRONTATION BETWEEN
WITNESS AND DEFENDANT - APPARENTLY EVEN IF THERE WERE RECORDINGS OR
SOUND-MOVIES OF THE EVENTS AS THEY OCCURRED.  BUT IF THE RULE IS
PREMISED ON THE DEFENDANT'S RIGHT TO HAVE HIS COUNSEL KNOW, THERE SEEMS
LITTLE BASIS FOR NOT ACCEPTING OTHER MEANS TO INFORM.  A DISINTERESTED
OBSERVER, RECORDINGS, PHOTOGRAPHS - ANY ONE OF THEM WOULD SEEM ADEQUATE
TO FURNISH THE BASIS FOR A MEANINGFUL CROSS-EXAMINATION OF THE
EYEWITNESS WHO IDENTIFIES THE DEFENDANT IN THE COURTROOM. 

I SHARE THE COURT'S VIEW THAT THE CRIMINAL TRIAL, AT THE VERY LEAST,
SHOULD AIM AT TRUTHFUL FACTFINDING, INCLUDING ACCURATE EYEWITNESS
IDENTIFICATIONS.  I DOUBT, HOWEVER, ON THE BASIS OF OUR PRESENT
INFORMATION, THAT THE TRAGIC MISTAKES WHICH HAVE OCCURRED IN CRIMINAL
TRIALS ARE AS MUCH THE PRODUCT OF IMPROPER POLICE CONDUCT AS THEY ARE
THE CONSEQUENCE OF THE DIFFICULTIES INHERENT IN EYEWITNESS TESTIMONY
AND IN RESOLVING EVIDENTIARY CONFLICTS BY COURT OR JURY.  I DOUBT THAT
THE COURT'S NEW RULE WILL OBVIATE THESE DIFFICULTIES, OR THAT THE
SITUATION WILL BE MEASURABLY IMPROVED BY INSERTING DEFENSE COUNSEL INTO
THE INVESTIGATIVE PROCESSES OF POLICE DEPARTMENTS EVERYWHERE.    BUT,
IT MAY BE ASKED, WHAT POSSIBLE STATE INTEREST MILITATES AGAINST
REQUIRING THE PRESENCE OF DEFENSE COUNSEL AT LINEUPS?  AFTER ALL, THE
ARGUMENT GOES, HE MAY DO SOME GOOD, HE MAY UPGRADE THE QUALITY OF
IDENTIFICATION EVIDENCE IN STATE COURTS AND HE CAN SCARCELY DO ANY
HARM.  EVEN IF TRUE, THIS IS A FEEBLE FOUNDATION FOR FASTENING AN
IRONCLAD CONSTITUTIONAL RULE UPON STATE CRIMINAL PROCEDURES.  ABSENT
SOME RELIABLY ESTABLISHED CONSTITUTIONAL VIOLATION, THE PROCESSES BY
WHICH THE STATES ENFORCE THEIR CRIMINAL LAWS ARE THEIR OWN
PREROGATIVE.  THE STATES DO HAVE AN INTEREST IN CONDUCTING THEIR OWN
AFFAIRS, AN INTEREST WHICH CANNOT BE DISPLACED SIMPLY BY SAYING THAT
THERE ARE NO VALID ARGUMENTS WITH RESPECT TO THE MERITS OF A FEDERAL
RULE EMANATING FROM THIS COURT.    BEYOND THIS, HOWEVER, REQUIRING
COUNSEL AT PRETRIAL IDENTIFICATIONS AS AN INVARIABLE RULE TRENCHE ON
OTHER VALID STATE INTERESTS.  ONE OF THEM IS ITS CONCERN WITH THE
PROMPT AND EFFICIENT ENFORCEMENT OF ITS CRIMINAL LAWS.  IDENTIFICATIONS
FREQUENTLY TAKE PLACE AFTER ARREST BUT BEFORE AN INDICTMENT IS RETURNED
OR AN INFORMATION IS FILED.  THE POLICE MAY HAVE ARRESTED A SUSPECT ON
PROBABLE CAUSE BUT MAY STILL HAVE THE WRONG MAN.  BOTH THE SUSPECT AND
THE STATE HAVE EVERY INTEREST IN A PROMPT IDENTIFICATION AT THAT STAGE,
THE SUSPECT IN ORDER TO SECURE HIS IMMEDIATE RELEASE AND THE STATE
BECAUSE PROMPT AND EARLY IDENTIFICATION ENHANCES ACCURATE
IDENTIFICATION AND BECAUSE IT MUST KNOW WHETHER IT IS ON THE RIGHT
INVESTIGATIVE TRACK.  UNAVOIDABLY, HOWEVER, THE ABSOLUTE RULE REQUIRING
THE PRESENCE OF COUNSEL WILL CAUSE SIGNIFICANT DELAY AND IT MAY VERY
WELL RESULT IN NO PRETRIAL IDENTIFICATION AT ALL.  COUNSEL MUST BE
APPOINTED AND A TIME ARRANGED CONVENIENT FOR HIM THE WITNESSES. 
MEANWHILE, IT MAY BE NECESSARY TO FILE CHARGES AGAINST THE SUSPECT WHO
MAY THEN BE RELEASED ON BAIL, IN THE FEDERAL SYSTEM VERY OFTEN ON HIS
OWN RECOGNIZANCE, WITH NEITHER THE STATE NOR THE DEFENDANT HAVING THE
BENEFIT OF A PROPERLY CONDUCTED IDENTIFICATION PROCEDURE. 

NOR DO I THINK THE WITNESSES THEMSELVES CAN BE IGNORED.  THEY WILL
NOW BE REQUIRED TO BE PRESENT AT THE CONVENIENCE OF COUNSEL RATHER THAN
THEIR OWN.  MANY MAY BE MUCH LESS WILLING TO PARTICIPATE IF THE
IDENTIFICATION STAGE IS TRANSFORMED INTO AN ADVERSARY PROCEEDING NOT
UNDER THE CONTROL OF A JUDGE.  OTHERS MAY FEAR FOR THEIR OWN SAFETY IF
THEIR IDENTITY IS KNOWN AT AN EARLY DATE, ESPECIALLY WHEN THERE IS NO
WAY OF KNOWING UNTIL THE LINEUP OCCURS WHETHER OR NOT THE POLICE REALLY
HAVE THE RIGHT MAN.  (FN4) 

FINALLY, I THINK THE COURT'S NEW RULE IS VULNERABLE IN TERMS OF ITS
OWN UNIMPEACHABLE PURPOSE OF INCREASING THE RELIABILITY OF
IDENTIFICATION TESTIMONY. 

LAW ENFORCEMENT OFFICERS HAVE THE OBLIGATION TO CONVICT THE GUILTY
AND TO MAKE SURE THEY DO NOT CONVICT THE INNOCENT.  THEY MUST BE
DEDICATED TO MAKING THE CRIMINAL TRIAL A PROCEDURE FOR THE
ASCERTAINMENT OF THE TRUE FACTS SURROUNDING THE COMMISSION OF THE
CRIME.  (FN5)  TO THIS EXTENT, OUR SO-CALLED ADVERSARY SYSTEM IS NOT
ADVERSARY AT ALL; NOR SHOULD IT BE.  BUT DEFENSE COUNSEL HAS NO
COMPARABLE OBLIGATION TO ASCERTAIN OR PRESENT THE TRUTH.  OUR SYSTEM
ASSIGNS HIM A DIFFERENT MISSION.  HE MUST BE AND IS INTERESTED IN
PREVENTING THE CONVICTION OF THE INNOCENT, BUT, ABSENT A VOLUNTARY PLEA
OF GUILTY, WE ALSO INSIST THAT HE DEFEND HIS CLIENT WHETHER HE IS
INNOCENT OR GUILTY.   THE STATE HAS THE OBLIGATION TO PRESENT THE
EVIDENCE.  DEFENSE COUNSEL NEED PRESENT NOTHING, EVEN IF HE KNOWS WHAT
THE TRUTH IS.  HE NEED NOT FURNISH ANY WITNESSES TO THE POLICE, OR
REVEAL ANY CONFIDENCES OF HIS CLIENT, OR FURNISH ANY OTHER INFORMATION
TO HELP THE PROSECUTION'S CASE.  IF HE CAN CONFUSE A WITNESS, EVEN A
TRUTHFUL ONE, OR MAKE HIM APPEAR AT A DISADVANTAGE, UNSURE OR
INDECISIVE, THAT WILL BE HIS NORMAL COURSE.  (FN6)  OUR INTEREST IN NOT
CONVICTING THE INNOCENT PERMITS COUNSEL TO PUT THE STATE TO ITS PROOF,
TO PUT THE STATE'S CASE IN THE WORST POSSIBLE LIGHT, REGARDLESS OF WHAT
HE THINKS OR KNOWS TO BE THE TRUTH.  UNDOUBTEDLY THERE ARE SOME LIMITS
WHICH DEFENSE COUNSEL MUST OBSERVE (FN7) BUT MORE OFTEN THAN NOT,
DEFENSE COUNSEL WILL CROSS-EXAMINE A PROSECUTION WITNESS, AND IMPEACH
HIM IF HE CAN, EVEN IF HE THINKS THE WITNESS IS TELLING THE TRUTH, JUST
AS HE WILL ATTEMPT TO DESTROY A WITNESS WHO HE THINKS IS LYING.  IN
THIS RESPECT, AS PART OF OUR MODIFIED ADVERSARY SYSTEM AND AS PART OF
THE DUTY IMPOSED ON THE MOST HONORABLE DEFENSE COUNSEL, WE COUNTENANCE
OR REQUIRE CONDUCT WHICH IN MANY INSTANCES HAS LITTLE, IF ANY, RELATION
TO THE SEARCH FOR TRUTH. 

I WOULD NOT EXTEND THIS SYSTEM, AT LEAST AS IT PRESENTLY OPERATES, TO
POLICE INVESTIGATIONS AND WOULD NOT REQUIRE COUNSEL'S PRESENCE AT
PRETRIAL IDENTIFICATION PROCEDURES.  COUNSEL'S INTEREST IS IN NOT
HAVING HIS CLIENT PLACED AT THE SCENE OF THE CRIME, REGARDLESS OF HIS
WHEREABOUTS.  SOME COUNSEL MAY ADVISE THEIR CLIENTS TO REFUSE TO MAKE
ANY MOVEMENTS OR TO SPEAK ANY WORDS IN A LINEUP OR EVEN TO APPEAR IN
ONE.  TO THAT EXTENT THE IMPACT ON TRUTHFUL FACTFINDING IS QUITE
OBVIOUS.  OTHERS WILL NOT ONLY OBSERVE WHAT OCCURS AND DEVELOP
POSSIBILITIES FOR LATER CROSS-EXAMINATION BUT WILL HOVER OVER WITNESSES
AND BEGIN THEIR CROSS-EXAMINATION THEN, MENACING TRUTHFUL FACTFINDING
AS THOROUGHLY AS THE COURT FEARS THE POLICE NOW DO.  CERTAINLY THERE IS
AN IMPLICIT INVITATION TO COUNSEL TO SUGGEST RULES FOR THE LINEUP AND
TO MANAGE AND PRODUCE IT AS BEST HE CAN.  I THEREFORE DOUBT THAT THE
COURT'S NEW RULE, AT LEAST ABSENT SOME CLEARLY DEFINED LIMITS ON
COUNSEL'S ROLE, WILL MEASURABLY CONTRIBUTE TO MORE RELIABLE PRETRIAL
IDENTIFICATIONS.  MY FEARS ARE THAT IT WILL HAVE PRECISELY THE OPPOSITE
RESULT.  IT MAY WELL PRODUCE FEWER CONVICTIONS, BUT THAT IS HARDLY A
PROPER MEASURE OF ITS LONG-RUN ACCEPTABILITY.  IN MY VIEW, THE STATE IS
ENTITLED TO INVESTIGATE AND DEVELOP ITS CASE OUTSIDE THE PRESENCE OF
DEFENSE COUNSEL.  THIS INCLUDES THE RIGHT TO HAVE PRIVATE CONVERSATIONS
WITH IDENTIFICATION WITNESSES, JUST AS DEFENSE COUNSEL MAY HAVE HIS OWN
CONSULTATIONS WITH THESE AND OTHER WITNESSES WITHOUT HAVING THE
PROSECUTOR PRESENT. 

WHETHER TODAY'S JUDGMENT WOULD BE AN ACCEPTABLE EXERCISE OF
SUPERVISORY POWER OVER FEDERAL COURTS IS ANOTHER QUESTION.  BUT AS A
CONSITUTIONAL MATTER, THE JUDGMENT IN THIS CASE IS ERRONEOUS AND
ALTHOUGH I CONCUR IN PARTS I AND III OF THE COURT'S OPINION I
RESPECTFULLY REGISTER THIS DISSENT. 

FN1  YET IN STOVALL V. DENNO, POST, P. 293, THE COURT RECOGNIZES THAT
IMPROPER POLICE CONDUCT IN THE IDENTIFICATION PROCESS HAS NOT BEEN SO
WIDESPREAD AS TO JUSTIFY FULL RETROACTIVITY FOR ITS NEW RULE. 

FN2  IN MIRANDA V. ARIZONA, 384 U.S. 436, 449, THE COURT NOTED THAT
O'HARA, FUNDAMENTALS OF CRIMINAL INVESTIGATION (1956) IS A TEXT THAT
HAS ENJOYED EXTENSIVE USE AMONG LAW ENFORCEMENT AGENCIES AND AMONG
STUDENTS OF POLICE SCIENCE.  THE QUALITY OF THE WORK WAS SAID TO REST
ON THE AUTHOR'S LONG SERVICE AS OBSERVER, LECTURER IN POLICE SCIENCE,
AND WORK AS A FEDERAL CRIME INVESTIGATOR.  O'HARA DOES NOT SUGGEST THAT
THE POLICE SHOULD OR DO USE IDENTIFICATION MACHINERY IMPROPERLY;
INSTEAD HE ARGUES FOR TECHNIQUES THAT WOULD INCREASE THE RELIABILITY OF
EYEWITNESS IDENTIFICATIONS, AND THERE IS NO REASON TO SUGGEST THAT
O'HARA'S VIEWS ARE NOT SHARED AND PRACTICED BY THE MAJORITY OF POLICE
DEPARTMENTS THROUGHOUT THE LAND. 

FN3  THE INSTANT CASE AND ITS COMPANIONS, GILBERT V. CALIFORNIA,
POST, P. 263, AND STOVALL V. DENNO, POST, P. 293, CERTAINLY LEND NO
SUPPORT TO THE COURT'S ASSUMPTIONS.  THE POLICE CONDUCT DEEMED IMPROPER
BY THE COURT IN THE THREE CASES SEEMS TO HAVE COME TO LIGHT AT TRIAL IN
THE ORDINARY COURSE OF EVENTS.  ONE CAN ASK WHAT MORE COUNSEL WOULD
HAVE LEARNED AT THE PRETRIAL IDENTIFICATIONS THAT WOULD HAVE BEEN
RELEVANT FOR TRUTH DETERMINATION AT TRIAL.  WHEN THE COURT PREMISES ITS
CONSTITUTIONAL RULE ON POLICE CONDUCT SO SUBTLE AS TO DEFY DESCRIPTION
AND SUBSEQUENT DISCLOSURE IT DEALS IN PURE SPECULATION.  IF POLICE
CONDUCT IS INTENTIONALLY VEILED, THE POLICE WILL KNOW ABOUT IT, AND I
AM UNWILLING TO SPECULATE THAT DEFENSE COUNSEL AT TRIAL WILL BE UNABLE
TO RECONSTRUCT THE KNOWN CIRCUMSTANCES OF THE PRETRIAL IDENTIFICATION. 
AND IF THE "UNKNOWN" INFLUENCE ON IDENTIFICATIONS IS "INNOCENT," THE
COURT'S GENERAL PREMISE EVAPORATES AND THE PROBLEM IS SIMPLY THAT OF
THE INHERENT SHORTCOMINGS OF EYEWITNESS TESTIMONY. 

FN4  I WOULD NOT HAVE THOUGHT THAT THE STATE'S INTEREST REGARDING ITS
SOURCES OF IDENTIFICATION IS ANY LESS THAN ITS INTEREST IN PROTECTING
INFORMANTS, ESPECIALLY THOSE WHO MAY AID IN IDENTIFICATION BUT WHO WILL
NOT BE USED AS WITNESSES.  SEE MCCRAY V. ILLINOIS, 386 U.S. 300. 

FN5  "THE UNITED STATES ATTORNEY IS THE REPRESENTATIVE NOT OF AN
ORDINARY PARTY TO A CONTROVERSY, BUT OF A SOVEREIGNTY WHOSE OBLIGATION
TO GOVERN IMPARTIALLY IS AS COMPELLING AS ITS OBLIGATION TO GOVERN AT
ALL; AND WHOSE INTEREST, THEREFORE, IN A CRIMINAL PROSECUTION IS NOT
THAT IT SHALL WIN A CASE, BUT THAT JUSTICE SHALL BE DONE.  AS SUCH, HE
IS IN A PECULIAR AND VERY DEFINITE SENSE THE SERVANT OF THE LAW, THE
TWOFOLD AIM OF WHICH IS THAT GUILT SHALL NOT ESCAPE OR INNOCENCE
SUFFER.  HE MAY PROSECUTE WITH EARNESTNESS AND VIGOR - INDEED, HE
SHOULD DO SO.  BUT, WHILE HE MAY STRIKE HARD BLOWS, HE IS NOT AT
LIBERTY TO STRIKE FOUL ONES.  IT IS AS MUCH HIS DUTY TO REFRAIN FROM
IMPROPER METHODS CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS IT IS
TO USE EVERY LEGITIMATE MEANS TO BRING ABOUT A JUST ONE."  BERGER V.
UNITED STATES, 295 U.S. 78, 88.  SEE ALSO MOONEY V. HOLOHAN, 294 U.S.
103; PYLE V. KANSES, 317 U.S. 213; ALCORTA V. TEXAS, 355 U.S. 28; NAPUE
V. ILLINOIS, 360 U.S. 264; BRADY V. MARYLAND, 373 U.S. 83; GILES V.
MARYLAND, 386 U.S. 66; MILLER V. PATE, 386 U.S. 1. 

FN6  ONE POINT OF VIEW ABOUT THE ROLE OF THE COURTROOM LAWYER APPEARS
IN FRANK, COURTS ON TRIAL 82-83.  "WHAT IS THE ROLE OF THE LAWYERS IN
BRINGING THE EVIDENCE BEFORE THE TRIAL COURT?  AS YOU MAY LEARN BY
READING ANY ONE OF A DOZEN OR MORE HANDBOOKS ON HOW TO TRY A LAW-SUIT,
AN EXPERIENCED LAWYER USES ALL SORTS OF STRATEGEMS TO MINIMIZE THE
EFFECT ON THE JUDGE OR JURY OF TESTIMONY DISADVANTAGEOUS TO HIS CLIENT,
EVEN WHEN THE LAWYER HAS NO DOUBT OF THE ACCURACY AND HONESTY OF THAT
TESTIMONY  ...  .  IF SUCH A WITNESS HAPPENS TO BE TIMID, FRIGHTENED BY
THE UNFAMILIARITY OF COURT-ROOM WAYS, THE LAWYER, IN HIS CROSS
EXAMINIATION, PLAYS ON THAT WEAKNESS, IN ORDER TO CONFUSE THE WITNESS
AND MAKE IT APPEAR THAT HE IS CONCEALING SIGNIFICANT FACTS. 
LONGENECKER, IN HIS BOOK HINTS ON THE TRIAL OF A LAW SUIT (A BOOK
ENDORSED BY THE GREAT WIGMORE), IN WRITING OF THE 'TRUTHFUL, HONEST,
OVER-CAUTIOUS' WITNESS, TELLS HOW 'A SKILFUL ADVOCATE BY A RAPID CROSS
EXAMINATION MAY RUIN THE TESTIMONY OF SUCH A WITNESS.'  THE AUTHOR DOES
NOT EVEN HINT ANY DISAPPROVAL OF THAT ACCOMPLISHMENT.  LONGENECKER'S
AND OTHER SIMILAR BOOKS RECOMMEND THAT A LAWYER TRY TO PROD AN
IRRITABLE BUT HONEST 'ADVERSE' WITNESS INTO DISPLAYING HIS UNDESIRABLE
CHARACTERISTICS IN THEIR MOST UNPLEASANT FORM, IN ORDER TO DISCREDIT
HIM WITH THE JUDGE OR JURY.  'YOU MAY,' WRITES HARRIS, 'SOMETIMES
DESTROY THE EFFECT OF AN ADVERSE WITNESS BY MAKING HIM APPEAR MORE
HOSTILE THAN HE REALLY IS.  YOU MAY MAKE HIM EXAGGERATE OR UNSAY
SOMETHING AND SAY IT AGAIN.'  TAFT SAYS THAT A CLEVER CROSS-EXAMINER,
DEALING WITH AN HONEST BUT EGOTISTIC WITNESS, WILL 'DEFTLY TEMPT THE
WITNESS TO INDULGE IN HIS PROPENSITY FOR EXAGGERATION, SO AS TO MAKE
HIM "HANG HIMSELF."  'AND THUS,' ADDS TAFT, 'IT MAY HAPPEN THAT NOT
ONLY IS THE VALUE OF HIS TESTIMONY LOST, BUT THE SIDE WHICH PRODUCES
HIM SUFFERS FOR SEEKING AID FROM SUCH A SOURCE' - ALTHOUGH, I WOULD
ADD, THAT MAY BE THE ONLY SOURCE OF EVIDENCE OF A FACT ON WHICH THE
DECISION WILL TURN. 

"'AN INTIMIDATING MANNER IN PUTTING QUESTIONS,' WRITES WIGMORE, 'MAY
SO COERCE OR DISCONCERT THE WITNESS THAT HIS ANSWERS DO NOT REPRESENT
HIS ACTUAL KNOWLEDGE ON THE SUBJECT.  SO ALSO, QUESTIONS WHICH IN FORM
OR SUBJECT CAUSE EMBARRASSMENT, SHAME OR ANGER IN THE WITNESS MAY
UNFAIRLY LEAD HIM TO SUCH DEMEANOR OR UTTERANCES THAT THE IMPRESSION
PRODUCED BY HIS STATEMENTS DOES NOT DO JUSTICE TO ITS REAL TESTIMONIAL
VALUE.'" 

FN7  SEE THE MATERIALS COLLECTED IN C. 3 OF COUNTRYMAN & FINMAN, THE
LAWYER IN MODERN SOCIETY; JOINT COMMITTEE ON CONTINUING LEGAL EDUCATION
OF AMERICAN LAW INSTITUTE AND THE AMERICAN BAR ASSOCIATION, THE PROBLEM
OF A CRIMINAL DEFENSE 1-46 (1961); STOVALL, ASPECTS OF THE ADVOCATE'S
DUAL RESPONSIBILITY, 22 THE ALABAMA LAWYER 66; GOLD, SPLIT LOYALTY:  AN
ETHICAL PROBLEM FOR THE CRIMINAL DEFENSE LAWYER, 14 CLEV.-MAR.  L. REV.
65; SYMPOSIUM ON PROFESSIONAL ETHICS, 64 MICH. L. REV. 1469-1498. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

1.  I AGREE WITH THE COURT THAT THE EXHIBITION OF THE PERSON OF THE
ACCUSED AT A LINEUP IS NOT ITSELF A VIOLATION OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION.  IN ITSELF, IT IS NO MORE SUBJECT TO CONSTITUTIONAL
OBJECTION THAN THE EXHIBITION OF THE PERSON OF THE ACCUSED IN THE
COURTROOM FOR IDENTIFICATION PURPOSES.  IT IS AN INCIDENT OF THE
STATE'S POWER TO ARREST, AND A REASONABLE AND JUSTIFIABLE ASPECT OF THE
STATE'S CUSTODY RESULTING FROM ARREST.  IT DOES NOT REQUIRE THAT THE
ACCUSED TAKE AFFIRMATIVE, VOLITIONAL ACTION, BUT ONLY THAT, HAVING BEEN
DULY ARRESTED HE MAY BE SEEN FOR IDENTIFICATION PURPOSES.  IT IS,
HOWEVER, A "CRITICAL STAGE" IN THE PROSECUTION, AND I AGREE WITH THE
COURT THAT THE OPPORTUNITY TO HAVE COUNSEL PRESENT MUST BE MADE
AVAILABLE. 

2.  IN MY VIEW, HOWEVER, THE ACCUSED MAY NOT BE COMPELLED IN A LINEUP
TO SPEAK THE WORDS UTTERED BY THE PERSON WHO COMMITTED THE CRIME.  I AM
CONFIDENT THAT IT COULD NOT BE COMPELLED IN COURT.  IT CANNOT BE
COMPELLED IN A LINEUP.  IT IS MORE THAN PASSIVE, MUTE ASSISTANCE TO THE
EYES OF THE VICTIM OR OF WITNESSES.  IT IS THE KIND OF VOLITIONAL ACT -
THE KIND OF FORCED COOPERATION BY THE ACCUSED - WHICH IS WITHIN THE
HISTORICAL PERIMETER OF THE PRIVILEGE AGAINST COMPELLED SELF
INCRIMINATION.    OUR HISTORY AND TRADITION TEACH AND COMMAND THAT AN
ACCUSED MAY STAND MUTE.  THE PRIVILEGE MEANS JUST THAT; NOT LESS THAN
THAT.  ACCORDING TO THE COURT, AN ACCUSED MAY BE JAILED - INDEFINITELY
UNTIL HE IS WILLING TO SAY, FOR AN IDENTIFYING AUDIENCE, WHATEVER WAS
SAID IN THE COURSE OF THE COMMISSION OF THE CRIME.  PRESUMABLY THIS
WOULD INCLUDE, "YOUR MONEY OR YOUR LIFE" - OR PERHAPS, WORDS OF ASSAULT
IN A RAPE CASE.  THIS IS INTOLERABLE UNDER OUR CONSTITUTIONAL SYSTEM. 

I COMPLETELY AGREE THAT THE ACCUSED MUST BE ADVISED OF AND GIVEN THE
RIGHT TO COUNSEL BEFORE A LINEUP - AND I JOIN IN THAT PART OF THE
COURT'S OPINION; BUT THIS IS AN EMPTY RIGHT UNLESS WE MEAN TO INSIST
UPON THE ACCUSED'S FUNDAMENTAL CONSTITUTIONAL IMMUNITIES.  ONE OF THESE
IS THAT THE ACCUSED MAY NOT BE COMPELLED TO SPEAK.  TO COMPEL HIM TO
SPEAK WOULD VIOLATE THE PRIVILEGE AGAINST SELF-INCRIMINATION, WHICH IS
INCORPORATED IN THE FIFTH AMENDMENT. 

THIS GREAT PRIVILEGE IS NOT MERELY A SHIELD FOR THE ACCUSED.  IT IS
ALSO A PRESCRIPTION OF TECHNIQUE DESIGNED TO GUIDE THE STATE'S
INVESTIGATION.  HISTORY TEACHES US THAT SELF-ACCUSATION IS AN
UNRELIABLE INSTRUMENT OF DETECTION, APT TO INCULPATE THE INNOCENT-BUT
WEAK AND TO ENABLE THE GUILTY TO ESCAPE.  BUT THIS IS NOT THE END OF
THE STORY.  THE PRIVILEGE HISTORICALLY GOES TO THE ROOTS OF DEMOCRATIC
AND RELIGIOUS PRINCIPLE.  IT PREVENTS THE DEBASEMENT OF THE CITIZEN
WHICH WOULD RESULT FROM COMPELLING HIM TO "ACCUSE" HIMSELF BEFORE THE
POWER OF THE STATE.  THE ROOTS OF THE PRIVILEGE ARE DEEPER THAN THE
RACK AND THE SCREW USED TO EXTORT CONFESSIONS.  THEY GO TO THE NATURE
OF A FREE MAN AND TO HIS RELATIONSHIP TO THE STATE. 

AN ACCUSED CANNOT BE COMPELLED TO UTTER THE WORDS SPOKEN BY THE
CRIMINAL IN THE COURSE OF THE CRIME.  I THOROUGHLY DISAGREE WITH THE
COURT'S STATEMENT THAT SUCH COMPULSION DOES NOT VIOLATE THE FIFTH
AMENDMENT.  THE COURT RELIES UPON SCHMERBER V. CALIFORNIA, 384 U.S. 757
(1966), TO SUPPORT THIS.  I DISSENTED IN SCHMERBER, BUT IF IT WERE
CONTROLLING HERE, I SHOULD, OF COURSE, ACKNOWLEDGE ITS BINDING EFFECT
UNLESS WE WERE PREPARED TO OVERRULE IT.  BUT SCHMERBER, WHICH
AUTHORIZED THE FORCED EXTRACTION OF BLOOD FROM THE VEINS OF AN
UNWILLING HUMAN BEING, DID NOT COMPEL THE PERSON ACTIVELY TO COOPERATE
TO ACCUSE HIMSELF BY A VOLITIONAL ACT WHICH DIFFERS ONLY IN DEGREE
FROM COMPELLING HIM TO ACT OUT THE CRIME, WHICH, I ASSUME, WOULD BE
REBUFFED BY THE COURT.  IT IS THE LATTER FEATURE WHICH PLACES THE
COMPELLED UTTERANCE BY THE ACCUSED SQUARELY WITHIN THE HISTORY AND
NOBLE PURPOSE OF THE FIFTH AMENDMENT'S COMMANDMENT. 

TO PERMIT SCHMERBER TO APPLY IN ANY RESPECT BEYOND ITS HOLDING IS, IN
MY OPINION, INDEFENSIBLE.  TO PERMIT ITS INSIDIOUS DOCTRINE TO EXTEND
BEYOND THE INVASION OF THE BODY, WHICH IT PERMITS, TO COMPULSION OF THE
WILL OF A MAN, IS TO DENY AND DEFY A PRECIOUS PART OF OUR HISTORICAL
FAITH AND TO DISCARD ONE OF THE MOST PROFOUNDLY CHERISHED INSTRUMENTS
BY WHICH WE HAVE ESTABLISHED THE FREEDOM AND DIGNITY OF THE
INDIVIDUAL.  WE SHOULD NOT SO ALTER THE BALANCE BETWEEN THE RIGHTS OF
THE INDIVIDUAL AND OF THE STATE, ACHIEVED OVER CENTURIES OF CONFLICT. 

3.  WHILE THE COURT HOLDS THAT THE ACCUSED MUST BE ADVISED OF AND
GIVEN THE RIGHT TO COUNSEL AT THE LINEUP, IT MAKES THE PRIVILEGE
MEANINGLESS IN THIS IMPORTANT RESPECT.  UNLESS COUNSEL HAS BEEN WAIVED
OR, BEING PRESENT, HAS NOT OBJECTED TO THE ACCUSED'S UTTERANCE OF WORDS
USED IN THE COURSE OF COMMITTING THE CRIME, TO COMPEL SUCH AN UTTERANCE
IS CONSTITUTIONAL ERROR.* 

*WHILE IT IS CONCEIVABLE THAT LEGISLATION MIGHT PROVIDE A METICULOUS
LINEUP PROCEDURE WHICH WOULD SATISFY CONSTITUTIONAL REQUIREMENTS, I DO
NOT AGREE WITH THE COURT THAT THIS WOULD "REMOVE THE BASIS FOR
REGARDING THE LINEUP STAGE AS 'CRITICAL.'" 

ACCORDINGLY, WHILE I JOIN THE COURT IN REQUIRING VACATING OF THE
JUDGMENT BELOW FOR A DETERMINATION AS TO WHETHER THE IDENTIFICATION OF
RESPONDENT WAS BASED UPON FACTORS INDEPENDENT OF THE LINEUP, I WOULD DO
SO NOT ONLY BECAUSE OF THE FAILURE TO OFFER COUNSEL BEFORE THE LINEUP
BUT ALSO BECAUSE OF THE VIOLATION OF RESPONDENT'S FIFTH AMENDMENT
RIGHTS. 
..END :







GILBERT V. CALIFORNIA 388 U.S. 263 


NO. 223.  ARGUED FEBRUARY 15-16, 1967.  - DECIDED JUNE 12, 1967.  - 63
CAL. 2D 690, 408 P.2D 365, VACATED AND REMANDED. 


PETITIONER WAS CONVICTED OF ARMED ROBBERY AND THE MURDER OF A POLICE
OFFICER.  THERE WERE SEPARATE GUILT AND PENALTY STAGES OF THE TRIAL
BEFORE THE SAME JURY, WHICH RENDERED A GUILTY VERDICT AND IMPOSED THE
DEATH PENALTY.  PETITIONER ALLEGES CONSTITUTIONAL ERRORS IN THE
ADMISSION OF TESTIMONY OF SOME OF THE WITNESSES THAT THEY HAD ALSO
IDENTIFIED HIM AT A LINEUP, WHICH OCCURRED 16 DAYS AFTER HIS INDICTMENT
AND AFTER APPOINTMENT OF COUNSEL, WHO WAS NOT NOTIFIED, AND IN IN-COURT
IDENTIFICATIONS OF OTHER WITNESSES PRESENT AT THAT LINEUP; IN THE
ADMISSION OF HANDWRITING EXEMPLARS TAKEN FROM HIM AFTER ARREST; AND IN
THE ADMISSION OF A CO-DEFENDANT'S OUT-OF-COURT STATEMENTS MENTIONING
PETITIONER'S PART IN THE CRIMES, WHICH STATEMENTS WERE HELD TO HAVE
BEEN IMPROPERLY ADMITTED AGAINST THE CO-DEFENDANT ON THE LATTER'S
APPEAL.  ADDITIONALLY, HE ALLEGES VIOLATION OF HIS FOURTH AMENDMENT
RIGHTS BY POLICE SEIZURE OF PHOTOGRAPHS OF HIM FROM HIS LOCKED
APARTMENT AFTER A WARRANTLESS ENTRY, AND THE ADMISSION OF TESTIMONY
IDENTIFYING HIM FROM THESE PHOTOGRAPHS.  HELD: 

1.  THE TAKING OF HANDWRITING EXEMPLARS DID NOT VIOLATE PETITIONER'S
CONSTITUTIONAL RIGHTS.  PP. 265-267. 

(A)  THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION REACHES
COMPULSORY COMMUNICATIONS, BUT A MERE HANDWRITING EXEMPLAR, IN CONTRAST
WITH THE CONTENT OF WHAT IS WRITTEN, IS AN IDENTIFYING PHYSICAL
CHARACTERISTIC OUTSIDE ITS PROTECTION.  PP. 266-267. 

(B)  THE TAKING OF THE EXEMPLARS WAS NOT A "CRITICAL" STAGE OF THE
CRIMINAL PROCEEDINGS ENTITLING PETITIONER TO THE ASSISTANCE OF COUNSEL;
THERE IS MINIMAL RISK THAT THE ABSENCE OF COUNSEL MIGHT DEROGATE FROM
HIS RIGHT TO A FAIR TRIAL.  P. 267. 

2.  PETITIONER'S REQUEST FOR RECONSIDERATION OF DELLI PAOLI V. UNITED
STATES, 352 U.S. 232 (WHERE THE COURT HELD THAT APPROPRIATE
INSTRUCTIONS TO THE JURY WOULD SUFFICE TO PREVENT PREJUDICE TO A
DEFENDANT FROM REFERENCES TO HIM IN A CO-DEFENDANT'S STATEMENT) IN
CONNECTION WITH HIS CO-DEFENDANT'S STATEMENTS, NEED NOT BE CONSIDERED
IN VIEW OF THE CALIFORNIA SUPREME COURT'S HOLDING REJECTING THE DELLI
PAOLI RATIONALE BUT FINDING THAT ANY ERROR TO PETITIONER BY THE
ADMISSION OF THE STATEMENTS WAS HARMLESS.  PP. 267-268. 

3.  A CLOSER EXAMINATION OF THE RECORD THAN WAS POSSIBLE WHEN
CERTIORARI WAS GRANTED REVEALS THAT THE FACTS WITH RESPECT TO THE
SEARCH AND SEIZURE CLAIM ARE NOT SUFFICIENTLY CLEAR TO PERMIT
RESOLUTION OF THAT QUESTION, AND CERTIORARI ON THIS ISSUE IS VACATED AS
IMPROVIDENTLY GRANTED.  P. 269. 

4.  THE ADMISSION OF THE IN-COURT IDENTIFICATIONS OF PETITIONER
WITHOUT FIRST DETERMINING THAT THEY WERE NOT TAINTED BY THE ILLEGAL
LINEUP PROCEDURE BUT WERE OF INDEPENDENT ORIGIN WAS CONSTITUTIONAL
ERROR.  UNITED STATES V. WADE, ANTE, P. 218.  PP. 269-274. 

(A)  SINCE THE RECORD DOES NOT PERMIT AN INFORMED JUDGMENT WHETHER
THE IN-COURT IDENTIFICATIONS AT THE TWO STAGES OF THE TRIAL HAD AN
INDEPENDENT SOURCE, PETITIONER IS ENTITLED ONLY TO A VACATION OF HIS
CONVICTION, PENDING PROCEEDINGS IN CALIFORNIA COURTS ALLOWING THE STATE
TO ESTABLISH THAT THE IN-COURT IDENTIFICATIONS HAD AN INDEPENDENT
SOURCE OR THAT THEIR INTRODUCTION IN EVIDENCE WAS HARMLESS ERROR.  P.
272. 

(B)  WITH RESPECT TO TESTIMONY OF WITNESSES THAT THEY IDENTIFIED
PETITIONER AT THE LINEUP, WHICH IS A DIRECT RESULT OF AN ILLEGAL
PROCEDURE, THE STATE IS NOT ENTITLED TO SHOW THAT SUCH TESTIMONY HAD AN
INDEPENDENT SOURCE BUT THE CALIFORNIA COURTS MUST, UNLESS "ABLE TO
DECLARE A BELIEF THAT IT WAS HARMLESS BEYOND A REASONABLE DOUBT," GRANT
PETITIONER A NEW TRIAL IF SUCH TESTIMONY WAS AT THE GUILT STAGE, OR
GRANT APPROPRIATE RELIEF IF IT WAS AT THE PENALTY STAGE.  PP. 272-274. 

GILBERT V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS ARGUED WITH UNITED STATES V. WADE, ANTE, P. 218, AND
PRESENTS THE SAME ALLEGED CONSTITUTIONAL ERROR IN THE ADMISSION IN
EVIDENCE OF IN-COURT IDENTIFICATIONS THERE CONSIDERED.  IN ADDITION,
PETITIONER ALLEGES CONSTITUTIONAL ERRORS IN THE ADMISSION IN EVIDENCE
OF TESTIMONY OF SOME OF THE WITNESSES THAT THEY ALSO IDENTIFIED HIM AT
THE LINEUP, IN THE ADMISSION OF HANDWRITING EXEMPLARS TAKEN FROM HIM
AFTER HIS ARREST, AND IN THE ADMISSION OF OUT-OF-COURT STATEMENTS BY
KING, A CO-DEFENDANT, MENTIONING PETITIONER'S PART IN THE CRIMES, WHICH
STATEMENTS, ON THE CO-DEFENDANT'S APPEAL DECIDED WITH PETITIONER'S,
WERE HELD TO HAVE BEEN IMPROPERLY ADMITTED AGAINST THE CO-DEFENDANT. 
FINALLY, HE ALLEGES THAT HIS FOURTH AMENDMENT RIGHTS WERE VIOLATED BY A
POLICE SEIZURE OF PHOTOGRAPHS OF HIM FROM HIS LOCKED APPARTMENT AFTER
ENTRY WITHOUT A SEARCH WARRANT, AND THE ADMISSION OF TESTIMONY OF
WITNESSES THAT THEY IDENTIFIED HIM FROM THOSE PHOTOGRAPHS WITHIN HOURS
AFTER THE CRIME. 

PETITIONER WAS CONVICTED IN THE SUPERIOR COURT OF CALIFORNIA OF THE
ARMED ROBBERY OF THE MUTUAL SAVINGS AND LOAN ASSOCIATION OF ALHAMBRA
AND THE MURDER OF A POLICE OFFICER WHO ENTERED DURING THE COURSE OF THE
ROBBERY.  THERE WERE SEPARATE GUILT AND PENALTY STAGES OF THE TRIAL
BEFORE THE SAME JURY, WHICH RENDERED A GUILTY VERDICT AND IMPOSED THE
DEATH PENALTY.  THE CALIFORNIA SUPREME COURT AFFIRMED, 63 CAL. 2D 690,
408 P.2D 365.  WE GRANTED CERTIORARI, 384 U.S. 985, AND SET THE CASE
FOR ARGUMENT WITH WADE AND WITH STOVALL V. DENNO, POST, P. 293.  IF OUR
HOLDING TODAY IN WADE IS APPLIED TO THIS CASE, THE ISSUE WHETHER
ADMISSION OF THE IN-COURT AND LINEUP IDENTIFICATIONS IS CONSTITUTIONAL
ERROR WHICH REQUIRES A NEW TRIAL COULD BE RESOLVED ON THIS RECORD ONLY
AFTER FURTHER PROCEEDINGS IN THE CALIFORNIA COURTS.  WE MUST THEREFORE
FIRST DETERMINE WHETHER PETITIONER'S OTHER CONTENTIONS WARRANT ANY
GREATER RELIEF. 

                   I.

                              THE HANDWRITING EXEMPLARS. 

PETITIONER WAS ARRESTED IN PHILADELPHIA BY AN FBI AGENT AND REFUSED
TO ANSWER QUESTIONS ABOUT THE ALHAMBRA ROBBERY WITHOUT THE ADVICE OF
COUNSEL.  HE LATER DID ANSWER QUESTIONS OF ANOTHER AGENT ABOUT SOME
PHILADELPHIA ROBBERIES IN WHICH THE ROBBER USED A HANDWRITTEN NOTE
DEMANDING THAT MONEY BE HANDED OVER TO HIM, AND DURING THAT
INTERROGATION GAVE THE AGENT THE HANDWRITING EXEMPLARS.  THEY WERE
ADMITTED IN EVIDENCE AT TRIAL OVER OBJECTION THAT THEY WERE OBTAINED IN
VIOLATION OF PETITIONER'S FIFTH AND SIXTH AMENDMENT RIGHTS.  THE
CALIFORNIA SUPREME COURT UPHELD ADMISSION OF THE EXEMPLARS ON THE SOLE
GROUND THAT PETITIONER HAD WAIVED ANY RIGHTS THAT HE MIGHT HAVE HAD NOT
TO FURNISH THEM.  "(THE AGENT) DID NOT TELL GILBERT THAT THE EXEMPLARS
WOULD NOT BE USED IN ANY OTHER INVESTIGATION.  THUS, EVEN IF GILBERT
BELIEVED THAT HIS EXEMPLARS WOULD NOT BE USED IN CALIFORNIA, IT DOES
NOT APPEAR THAT THE AUTHORITIES IMPROPERLY INDUCED SUCH BELIEF."  63
CAL. 2D, AT 708, 408 P.2D, AT 376.  THE COURT DID NOT, THEREFORE,
DECIDE PETITIONER'S CONSTITUTIONAL CLAIMS. 

WE PASS THE QUESTION OF WAIVER SINCE WE CONCLUDE THAT THE TAKING OF
THE EXEMPLARS VIOLATED NONE OF PETITIONER'S CONSTITUTIONAL RIGHTS. 

FIRST.  THE TAKING OF THE EXEMPLARS DID NOT VIOLATE PETITIONER'S
FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.  THE PRIVILEGE
REACHES ONLY COMPULSION OF "AN ACCUSED'S COMMUNICATIONS, WHATEVER FORM
THEY MIGHT TAKE, AND THE COMPULSION OF RESPONSES WHICH ARE ALSO
COMMUNICATIONS, FOR EXAMPLE, COMPLIANCE WITH A SUBPOENA TO PRODUCE
ONE'S PAPERS," AND NOT "COMPULSION WHICH MAKES A SUSPECT OR ACCUSED THE
SOURCE OF 'REAL OR PHYSICAL EVIDENCE'  ...  ."  SCHMERBER V.
CALIFORNIA, 384 U.S. 757, 763-764.  ONE'S VOICE AND HANDWRITING ARE, OF
COURSE, MEANS OF COMMUNICATION.  IT BY NO MEANS FOLLOWS, HOWEVER, THAT
EVERY COMPULSION OF AN ACCUSED TO USE HIS VOICE OR WRITE COMPELS A
COMMUNICATION WITHIN THE COVER OF THE PRIVILEGE.  A MERE HANDWRITING
EXEMPLAR, IN CONTRAST TO THE CONTENT OF WHAT IS WRITTEN, LIKE THE VOICE
OR BODY ITSELF, IS AN IDENTIFYING PHYSICAL CHARACTERISTIC OUTSIDE ITS
PROTECTION.  UNITED STATES V. WADE, SUPRA, AT 222-223.  NO CLAIM IS
MADE THAT THE CONTENT OF THE EXEMPLARS WAS TESTIMONIAL OR COMMUNICATIVE
MATTER.  CF. BOYD V. UNITED STATES, 116 U.S. 616. 

SECOND.  THE TAKING OF THE EXEMPLARS WAS NOT A "CRITICAL" STAGE OF
THE CRIMINAL PROCEEDINGS ENTITLING PETITIONER TO THE ASSISTANCE OF
COUNSEL.  PUTTING ASIDE THE FACT THAT THE EXEMPLARS WERE TAKEN BEFORE
THE INDICTMENT AND APPOINTMENT OF COUNSEL, THERE IS MINIMAL RISK THAT
THE ABSENCE OF COUNSEL MIGHT DEROGATE FROM HIS RIGHT TO A FAIR TRIAL. 
CF. UNITED STATES V. WADE, SUPRA.  IF, FOR SOME REASON, AN
UNREPRESENTATIVE EXEMPLAR IS TAKEN, THIS CAN BE BROUGHT OUT AND
CORRECTED THROUGH THE ADVERSARY PROCESS AT TRIAL SINCE THE ACCUSED CAN
MAKE AN UNLIMITED NUMBER OF ADDITIONAL EXEMPLARS FOR ANALYSIS AND
COMPARISON BY GOVERNMENT AND DEFENSE HANDWRITING EXPERTS.  THUS, "THE
ACCUSED HAS THE OPPORTUNITY FOR A MEANINGFUL CONFRONTATION OF THE
(STATE'S) CASE AT TRIAL THROUGH THE ORDINARY PROCESSES OF CROSS
EXAMINATION OF THE (STATE'S) EXPERT (HANDWRITING) WITNESSES AND THE
PRESENTATION OF THE EVIDENCE OF HIS OWN (HANDWRITING) EXPERTS."  UNITED
STATES V. WADE, SUPRA, AT 227-228. 

          II.

                         ADMISSION OF CO-DEFENDANT'S STATEMENTS. 

PETITIONER CONTENDS THAT HE WAS DENIED DUE PROCESS OF LAW BY THE
ADMISSION DURING THE GUILT STAGE OF THE TRIAL OF HIS ACCOMPLICE'S
PRETRIAL STATEMENTS TO THE POLICE WHICH REFERRED TO PETITIONER 159
TIMES IN THE COURSE OF RECITING PETITIONER'S ROLE IN THE ROBBERY AND
MURDER.  THE STATEMENTS WERE INADMISSIBLE HEARSAY AS TO PETITIONER, AND
WERE HELD ON KING'S ASPECT OF THIS APPEAL TO BE IMPROPERLY OBTAINED
FROM HIM AND THEREFORE TO BE INADMISSIBLE AGAINST HIM UNDER CALIFORNIA
LAW.  63 CAL. 2D, AT 699-701, 408 P.2D, AT 370-371. 

PETITIONER WOULD HAVE US RECONSIDER DELLI PAOLI V. UNITED STATES, 352
U.S. 232 (WHERE THE COURT HELD THAT APPROPRIATE INSTRUCTIONS TO THE
JURY WOULD SUFFICE TO PREVENT PREJUDICE TO A DEFENDANT FROM THE
REFERENCES TO HIM IN A CO-DEFENDANT'S STATEMENT), AT LEAST AS APPLIED
TO A CASE, AS HERE, WHERE THE CO-DEFENDANT GAINED A REVERSAL BECAUSE OF
THE IMPROPER ADMISSION OF THE STATEMENTS.  WE HAVE NO OCCASION TO PASS
UPON THIS CONTENTION.  THE CALIFORNIA SUPREME COURT HAS REJECTED THE
DELLI PAOLI RATIONALE, AND RELYING AT LEAST IN PART ON THE REASONING OF
THE DELLI PAOLI DISSENT, REGARDS CAUTIONARY INSTRUCTIONS AS INADEQUATE
TO CURE PREJUDICE.  PEOPLE V. ARANDA, 63 CAL. 2D 518, 407 P.2D 265. 
THE CALIFORNIA COURT APPLIED ARANDA IN THIS CASE BUT HELD THAT ANY
ERROR AS TO GILBERT IN THE ADMISSION OF KING'S STATEMENTS WAS
HARMLESS.  THE HARMLESS-ERROR STANDARD APPLIED WAS THAT "THERE IS NO
REASONABLE POSSIBILITY THAT THE ERROR IN ADMITTING KING'S STATEMENTS
AND TESTIMONY MIGHT HAVE CONTRIBUTED TO GILBERT'S CONVICTION," A
STANDARD DERIVED BY THE COURT FROM OUR DECISION IN FAHY V. CONNECTICUT,
375 U.S. 85.  (FN1)  FAHY WAS THE BASIS OF OUR HOLDING IN CHAPMAN V.
CALIFORNIA, 386 U.S. 18, AND THE STANDARD APPLIED BY THE CALIFORNIA
COURT SATISFIES THE STANDARD AS DEFINED IN CHAPMAN. 

IT MAY BE THAT THE CALIFORNIA SUPREME COURT WILL REVIEW THE
APPLICATION OF ITS HARMLESS-ERROR STANDARD TO KING'S STATEMENTS IF ON
THE REMAND THE STATE PRESSES HARMLESS ERROR ALSO IN THE INTRODUCTION OF
THE IN-COURT AND LINEUP IDENTIFICATIONS.  HOWEVER, THIS AT BEST IMPLIES
AN ULTIMATE APPLICATION OF ARANDA AND ONLY CONFIRMS THAT PETITIONER'S
ARGUMENT FOR RECONSIDERATION OF DELLI PAOLI NEED NOT BE CONSIDERED AT
THIS TIME. 

III. 

                              THE SEARCH-AND-SEIZURE CLAIM. 

THE CALIFORNIA SUPREME COURT REJECTED GILBERT'S CHALLENGE TO THE
ADMISSION OF CERTAIN PHOTOGRAPHS TAKEN FROM HIS APARTMENT PURSUANT TO A
WARRANTLESS SEARCH.  THE COURT JUSTIFIED THE ENTRY INTO THE APARTMENT
UNDER THE CIRCUMSTANCES ON THE BASIS OF SO-CALLED "HOT PURSUIT" AND
"EXIGENT CIRCUMSTANCES" EXCEPTIONS TO THE WARRANT REQUIREMENT.  WE
GRANTED CERTIORARI TO CONSIDER THE IMPORTANT QUESTION OF THE EXTENT TO
WHICH SUCH EXCEPTIONS MAY PERMIT WARRANTLESS SEARCHES WITHOUT VIOLATION
OF THE FOURTH AMENDMENT.  A CLOSER EXAMINATION OF THE RECORD THAN WAS
POSSIBLE WHEN CERTIORARI WAS GRANTED REVEALS THAT THE FACTS DO NOT
APPEAR WITH SUFFICIENT CLARITY TO ENABLE US TO DECIDE THAT QUESTION. 
SEE APPENDIX TO THIS OPINION; COMPARE WARDEN V. HAYDEN, 387 U.S. 294. 
WE THEREFORE VACATE CERTIORARI ON THIS ISSUE AS IMPROVIDENTLY GRANTED. 
THE MONROSA V. CARBON BLACK EXPORT, INC., 359 U.S. 180, 184. 

           IV.

                         THE IN-COURT AND LINEUP IDENTIFICATIONS. 

SINCE NONE OF THE PETITIONER'S OTHER CONTENTIONS WARRANTS RELIEF, THE
ISSUE BECOMES WHAT RELIEF IS REQUIRED BY APPLICATION TO THIS CASE OF
THE PRINCIPLES TODAY ANNOUNCED IN UNITED STATES V. WADE, SUPRA. 

THREE EYEWITNESSES TO THE ALHAMBRA CRIMES WHO IDENTIFIED GILBERT AT
THE GUILT STAGE OF THE TRIAL HAD OBSERVED HIM AT A LINEUP CONDUCTED
WITHOUT NOTICE TO HIS COUNSEL IN A LOS ANGELES AUDITORIUM 16 DAYS AFTER
HIS INDICTMENT AND AFTER APPOINTMENT OF COUNSEL.  THE MANAGER OF THE
APARTMENT HOUSE IN WHICH INCRIMINATING EVIDENCE WAS FOUND, AND IN WHICH
GILBERT ALLEGEDLY RESIDED, IDENTIFIED GILBERT IN THE COURTROOM AND ALSO
TESTIFIED, IN SUBSTANCE, TO HER PRIOR LINEUP IDENTIFICATION ON
EXAMINATION BY THE STATE.  EIGHT WITNESSES WHO IDENTIFIED HIM IN THE
COURTROOM AT THE PENALTY STAGE WERE NOT EYEWITNESSES TO THE ALHAMBRA
CRIMES BUT TO OTHER ROBBERIES ALLEGEDLY COMMITTED BY HIM.  IN ADDITION
TO THEIR IN-COURT IDENTIFICATIONS, THESE WITNESSES ALSO TESTIFIED THAT
THEY IDENTIFIED GILBERT AT THE SAME LINEUP. 

THE LINEUP WAS ON A STAGE BEHIND BRIGHT LIGHTS WHICH PREVENTED THOSE
IN THE LINE FROM SEEING THE AUDIENCE.  UPWARDS OF 100 PERSONS WERE IN
THE AUDIENCE, EACH AN EYEWITNESS TO ONE OF THE SEVERAL ROBBERIES
CHARGED TO GILBERT.  THE RECORD IS OTHERWISE VIRTUALLY SILENT AS TO
WHAT OCCURRED AT THE LINEUP.  (FN2) 

AT THE GUILT STAGE, AFTER THE FIRST WITNESS, A CASHIER OF THE SAVINGS
AND LOAN ASSOCIATION, IDENTIFIED GILBERT IN THE COURTROOM, DEFENSE
COUNSEL MOVED, OUT OF THE PRESENCE OF THE JURY, TO STRIKE HER TESTIMONY
ON THE GROUND THAT SHE IDENTIFIED GILBERT AT THE PRETRIAL LINEUP
CONDUCTED IN THE ABSENCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT
MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.  GIDEON V.
WAINWRIGHT, 372 U.S. 335.  HE REQUESTED A HEARING OUTSIDE THE PRESENCE
OF THE JURY TO PRESENT EVIDENCE SUPPORTING HIS CLAIM THAT HER IN-COURT
IDENTIFICATION WAS, AND OTHERS TO BE ELICITED BY THE STATE FROM OTHER
EYEWITNESSES WOULD BE, "PREDICATED AT LEAST IN LARGE PART UPON THEIR
IDENTIFICATION OR PURPORTED IDENTIFICATION OF MR. GILBERT AT THE SHOWUP
... ."  THE TRIAL JUDGE DENIED THE MOTION AS PREMATURE.  DEFENSE
COUNSEL THEN ELICITED THE FACT OF THE CASHIER'S LINEUP IDENTIFICATION
ON CROSS-EXAMINATION AND AGAIN MOVED TO STRIKE HER IDENTIFICATION
TESTIMONY.  WITHOUT PASSING ON THE MERITS OF THE SIXTH AMENDMENT CLAIM,
THE TRIAL JUDGE DENIED THE MOTION ON THE GROUND THAT, ASSUMING A
VIOLATION, IT WOULD NOT IN ANY EVENT ENTITLE GILBERT TO SUPPRESSION OF
THE IN-COURT IDENTIFICATION.  DEFENSE COUNSEL THEREAFTER ELICITED THE
FACT OF LINEUP IDENTIFICATIONS FROM TWO OTHER EYEWITNESSES WHO ON
DIRECT EXAMINATION IDENTIFIED GILBERT IN THE COURTROOM.  DEFENSE
COUNSEL UNSUCCESSFULLY OBJECTED AT THE PENALTY STAGE, TO THE TESTIMONY
OF THE EIGHT WITNESSES TO THE OTHER ROBBERIES THAT THEY IDENTIFIED
GILBERT AT THE LINEUP. 

THE ADMISSION OF THE IN-COURT IDENTIFICATIONS WITHOUT FIRST
DETERMINING THAT THEY WERE NOT TAINTED BY THE ILLEGAL LINEUP BUT WERE
OF INDEPENDENT ORIGIN WAS CONSTITUTIONAL ERROR.  UNITED STATES V. WADE,
SUPRA.  WE THERE HELD THAT A POST-INDICTMENT PRETRIAL LINEUP AT WHICH
THE ACCUSED IS EXHIBITED TO IDENTIFYING WITNESSES IS A CRITICAL STAGE
OF THE CRIMINAL PROSECUTION; THAT POLICE CONDUCT OF SUCH A LINEUP
WITHOUT NOTICE TO AND IN THE ABSENCE OF HIS COUNSEL DENIES THE ACCUSED
HIS SIXTH AMENDMENT RIGHT TO COUNSEL AND CALLS IN QUESTION THE
ADMISSIBILITY AT TRIAL OF THE IN-COURT IDENTIFICATIONS OF THE ACCUSED
BY WITNESSES WHO ATTENDED THE LINEUP.  HOWEVER, AS IN WADE, THE RECORD
DOES NOT PERMIT AN INFORMED JUDGMENT WHETHER THE IN-COURT
IDENTIFICATIONS AT THE TWO STAGES OF THE TRIAL HAD AN INDEPENDENT
SOURCE.  GILBERT IS THEREFORE ENTITLED ONLY TO A VACATION OF HIS
CONVICTION PENDING THE HOLDING OF SUCH PROCEEDINGS AS THE CALIFORNIA
SUPREME COURT MAY DEEM APPROPRIATE TO AFFORD THE STATE THE OPPORTUNITY
TO ESTABLISH THAT THE IN-COURT IDENTIFICATIONS HAD AN INDEPENDENT
SOURCE, OR THAT THEIR INTRODUCTION IN EVIDENCE WAS IN ANY EVENT
HARMLESS ERROR. 

QUITE DIFFERENT CONSIDERATIONS ARE INVOLVED AS TO THE ADMISSION OF
THE TESTIMONY OF THE MANAGER OF THE APARTMENT HOUSE AT THE GUILT PHASE
AND OF THE EIGHT WITNESSES AT THE PENALTY STAGE THAT THEY IDENTIFIED
GILBERT AT THE LINEUP.  (FN3)  THAT TESTIMONY IS THE DIRECT RESULT OF
THE ILLEGAL LINEUP "COME AT BY EXPLOITATION OF (THE PRIMARY)
ILLEGALITY."  WONG SUN V. UNITED STATES, 371 U.S. 471, 488.  THE STATE
IS THEREFORE NOT ENTITLED TO AN OPPORTUNITY TO SHOW THAT THAT TESTIMONY
HAD AN INDEPENDENT SOURCE.  ONLY A PER SE EXCLUSIONARY RULE AS TO SUCH
TESTIMONY CAN BE AN EFFECTIVE SANCTION TO ASSURE THAT LAW ENFORCEMENT
AUTHORITIES WILL RESPECT THE ACCUSED'S CONSTITUTIONAL RIGHT TO THE
PRESENCE OF HIS COUNSEL AT THE CRITICAL LINEUP.  IN THE ABSENCE OF
LEGISLATIVE REGULATIONS ADEQUATE TO AVOID THE HAZARDS TO A FAIR TRIAL
WHICH INHERE IN LINEUPS AS PRESENTLY CONDUCTED, THE DESIRABILITY OF
DETERRING THE CONSTITUTIONALLY OBJECTIONABLE PRACTICE MUST PREVAIL OVER
THE UNDESIRABILITY OF EXCLUDING RELEVANT EVIDENCE.  CF. MAPP V. OHIO,
367 U.S. 643.  THAT CONCLUSION IS BUTTRESSED BY THE CONSIDERATION THAT
THE WITNESS' TESTIMONY OF HIS LINEUP IDENTIFICATION WILL ENHANCE THE
IMPACT OF HIS IN-COURT IDENTIFICATION ON THE JURY AND SERIOUSLY
AGGRAVATE WHATEVER DEROGATION EXISTS OF THE ACCUSED'S RIGHT TO A FAIR
TRIAL.  THEREFORE, UNLESS THE CALIFORNIA SUPREME COURT IS "ABLE TO
DECLARE A BELIEF THAT IT WAS HARMLESS BEYOND A REASONABLE DOUBT,"
CHAPMAN V. CALIFORNIA, 386 U.S. 18, 24, GILBERT WILL BE ENTITLED ON
REMAND TO A NEW TRIAL OR, IF NO PREJUDICIAL ERROR IS FOUND ON THE GUILT
STAGE BUT ONLY IN THE PENALTY STAGE, TO WHATEVER RELIEF CALIFORNIA LAW
AFFORDS WHERE THE PENALTY STAGE MUST BE SET ASIDE. 

THE JUDGMENT OF THE CALIFORNIA SUPREME COURT AND THE CONVICTION ARE
VACATED, AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE CALIFORNIA SUPREME COURT ALSO HELD THAT "  ...  THE
ERRONEOUS ADMISSION OF KING'S STATEMENTS AT THE TRIAL ON THE ISSUE OF
GUILT WAS NOT PREJUDICIAL ON THE QUESTION OF GILBERT'S PENALTY," AGAIN
CITING FAHY, 63 CAL. 2D, AT 702, 408 P.2D, AT 372. 

FN2  THE RECORD IN GILBERT V. UNITED STATES, 366 F.2D 923, INVOLVING
THE FEDERAL PROSECUTIONS OF GILBERT, APPARENTLY CONTAINS MANY MORE
DETAILS OF WHAT OCCURRED AT THE LINEUP.  THE OPINION OF THE COURT OF
APPEALS FOR THE NINTH CIRCUIT STATES, 366 F.2D, AT 935: 

"THE LINEUP OCCURRED ON MARCH 26, 1964, AFTER GILBERT HAD BEEN
INDICTED AND HAD OBTAINED COUNSEL.  IT WAS HELD IN AN AUDITORIUM USED
FOR THAT PURPOSE BY THE LOS ANGELES POLICE.  SOME TEN TO THIRTEEN
PRISONERS WERE PLACED ON A LIGHTED STAGE.  THE WITNESSES WERE ASSEMBLED
IN A DARKENED PORTION OF THE ROOM, FACING THE STAGE AND SEPARATED FROM
IT BY A SCREEN.  THEY COULD SEE THE PRISONERS BUT COULD NOT BE SEEN BY
THEM.  STATE AND FEDERAL OFFICERS WERE ALSO PRESENT AND ONE OF THEM
ACTED AS 'MODERATOR' OF THE PROCEEDINGS. 

"EACH MAN IN THE LINEUP WAS IDENTIFIED BY NUMBER, BUT NOT BY NAME. 
EACH MAN WAS REQUIRED TO STEP FORWARD INTO A MARKED CIRCLE, TO TURN,
PRESENTING BOTH PROFILES AS WELL AS A FACE AND BACK VIEW, TO WALK, TO
PUT ON OR TAKE OFF CERTAIN ARTICLES OF CLOTHING.  WHEN A MAN'S NUMBER
WAS CALLED AND HE WAS DIRECTED TO STEP INTO THE CIRCLE, HE WAS ASKED
CERTAIN QUESTIONS: WHERE HE WAS PICKED UP, WHETHER HE OWNED A CAR,
WHETHER, WHEN ARRESTED, HE WAS ARMED, WHERE HE LIVED.  EACH WAS ALSO
ASKED TO REPEAT CERTAIN PHRASES, BOTH IN A LOUD AND IN A SOFT VOICE,
PHRASES THAT WITNESSES TO THE CRIMES HAD HEARD THE ROBBERS USE:
'FREEZE, THIS IS A STICKUP; THIS IS A HOLDUP; EMPTY YOUR CASH DRAWER;
THIS IS A HEIST; DON'T ANYBODY MOVE.' 

"EITHER WHILE THE MEN WERE ON THE STAGE, OR AFTER THEY WERE TAKEN
FROM IT, IT IS NOT CLEAR WHICH, THE ASSEMBLED WITNESSES WERE ASKED IF
THERE WERE ANY THAT THEY WOULD LIKE TO SEE AGAIN, AND TOLD THAT IF THEY
HAD DOUBTS, NOW WAS THE TIME TO RESOLVE THEM.  SEVERAL GAVE THE NUMBERS
OF MEN THEY WANTED TO SEE, INCLUDING GILBERT'S.  WHILE THE OTHER
PRISONERS WERE NO LONGER PRESENT, GILBERT AND 2 OR 3 OTHERS WERE AGAIN
PUT THROUGH A SIMILAR PROCEDURE.  SOME OF THE WITNESSES ASKED THAT A
PARTICULAR PRISONER SAY A PARTICULAR PHRASE, OR WALK A PARTICULAR WAY. 
AFTER THE LINEUP, THE WITNESSES TALKED TO EACH OTHER; IT IS NOT CLEAR
THAT THEY DID SO DURING THE LINEUP.  THEY DID, HOWEVER, IN EACH OTHER'S
PRESENCE, CALL OUT THE NUMBERS OF MEN THEY COULD IDENTIFY." 

FN3  THERE IS A SPLIT AMONG THE STATES CONCERNING THE ADMISSIBILITY
OF PRIOR EXTRAJUDICIAL IDENTIFICATIONS, AS INDEPENDENT EVIDENCE OF
IDENTITY, BOTH BY THE WITNESS AND THIRD PARTIES PRESENT AT THE PRIOR
IDENTIFICATION.  SEE 71 ALR2D 449.  IT HAS BEEN HELD THAT THE PRIOR
IDENTIFICATION IS HEARSAY, AND, WHEN ADMITTED THROUGH THE TESTIMONY OF
THE IDENTIFIER, IS MERELY A PRIOR CONSISTENT STATEMENT.  THE RECENT
TREND, HOWEVER, IS TO ADMIT THE PRIOR IDENTIFICATION UNDER THE
EXCEPTION THAT ADMITS AS SUBSTANTIVE EVIDENCE A PRIOR COMMUNICATION BY
A WITNESS WHO IS AVAILABLE FOR CROSS-EXAMINATION AT TRIAL.  SEE 5 ALR2D
LATER CASE SERVICE 1225-1228.  THAT IS THE CALIFORNIA RULE.   IN PEOPLE
V. GOULD, 54 CAL. 2D 621, 626, 354 P.2D 865, 867, THE COURT SAID: 

"EVIDENCE OF AN EXTRAJUDICIAL IDENTIFICATION IS ADMISSIBLE, NOT ONLY
TO CORROBORATE AN IDENTIFICATION MADE AT THE TRIAL (PEOPLE V.
SLOBODION, 31 CAL. 2D 555, 560 (191 P.2D 1)), BUT AS INDEPENDENT
EVIDENCE OF IDENTITY.  UNLIKE OTHER TESTIMONY THAT CANNOT BE
CORROBORATED BY PROOF OF PRIOR CONSISTENT STATEMENTS UNLESS IT IS FIRST
IMPEACHED  ...  EVIDENCE OF AN EXTRAJUDICIAL IDENTIFICATION IS ADMITTED
REGARDLESS OF WHETHER THE TESTIMONIAL IDENTIFICATION IS IMPEACHED,
BECAUSE THE EARLIER IDENTIFICATION HAS GREATER PROBATIVE VALUE THAT AN
IDENTIFICATION MADE IN THE COURTROOM AFTER THE SUGGESTIONS OF OTHERS
AND THE CIRCUMSTANCES OF THE TRIAL MAY HAVE INTERVENED TO CREATE A
FANCIED RECOGNITION IN THE WITNESS' MIND  ...  .  THE FAILURE OF THE
WITNESS TO REPEAT THE EXTRAJUDICIAL IDENTIFICATION IN COURT DOES NOT
DESTROY ITS PROBATIVE VALUE, FOR SUCH FAILURE MAY BE EXPLAINED BY LOSS
OF MEMORY OR OTHER CIRCUMSTANCES.  THE EXTRAJUDICIAL IDENTIFICATION
TENDS TO CONNECT THE DEFENDANT WITH THE CRIME, AND THE PRINCIPAL DANGER
OF ADMITTING HEARSAY EVIDENCE IS NOT PRESENT SINCE THE WITNESS IS
AVAILABLE AT THE TRIAL FOR CROSS-EXAMINATION." 

NEW YORK DEALS WITH THE SUBJECT IN A STATUTE.  SEE N.Y. CODE CRIM.
PROC. SEC 393-B. 

THE CHIEF JUSTICE JOINS THIS OPINION EXCEPT FOR PART III, FROM WHICH
HE DISSENTS FOR THE REASONS EXPRESSED IN THE OPINION OF MR. JUSTICE
DOUGLAS. 

              APPENDIX TO OPINION OF THE COURT. 

PHOTOGRAPHS OF GILBERT INTRODUCED AT THE GUILT STAGE OF THE TRIAL HAD
BEEN VIEWED BY EYEWITNESSES WITHIN HOURS AFTER THE ROBBERY AND MURDER. 
OFFICERS HAD ENTERED HIS APARTMENT WITHOUT A WARRANT AND FOUND THEM IN
AN ENVELOPE ON THE TOP OF A BEDROOM DRESSER.  THE ENVELOPE WAS OF THE
KIND CUSTOMARILY USED IN DELIVERING DEVELOPED PRINTS, WITH THE WORDS
"MARLBORO PHOTO STUDIO" IMPRINTED ON IT.  THE OFFICERS ENTERED THE
APARTMENT BECAUSE OF INFORMATION GIVEN BY AN ACCOMPLICE WHICH LED THEM
TO BELIEVE THAT ONE OF THE SUSPECTS MIGHT BE INSIDE THE APARTMENT. 
ASSUMING THAT THE WARRANTLESS ENTRY INTO THE APARTMENT WAS JUSTIFIED BY
THE NEED IMMEDIATELY TO SEARCH FOR THE SUSPECT, THE ISSUE REMAINS
WHETHER THE SUBSEQUENT SEARCH WAS REASONABLY SUPPORTED BY THOSE SAME
EXIGENT CIRCUMSTANCES.  IF THE ENVELOPE WERE COME UPON IN THE COURSE OF
A SEARCH FOR THE SUSPECT, THE ANSWER MIGHT BE DIFFERENT FROM THAT WHERE
IT IS COME UPON, EVEN THOUGH IN PLAIN VIEW, IN THE COURSE OF A GENERAL,
INDISCRIMINATE SEARCH OF CLOSETS, DRESSERS, ETC., AFTER IT IS KNOWN
THAT THE OCCUPANT IS ABSENT.  STILL DIFFERENT CONSIDERATIONS MAY BE
PRESENTED WHERE OFFICERS, PURSUING THE SUSPECT, FIND THAT HE IS ABSENT
FROM THE APARTMENT BUT CONDUCT A LIMITED SEARCH FOR SUSPICIOUS OBJECTS
IN PLAIN VIEW WHICH MIGHT AID IN THE PURSUIT.  THE PROBLEM WITH THE
RECORD IN THE PRESENT CASE IS THAT IT COULD REASONABLY SUPPORT ANY OF
THESE FACTUAL CONCLUSIONS UPON WHICH OUR CONSTITUTIONAL ANALYSIS SHOULD
REST, AND THE TRIAL COURT MADE NO FINDINGS ON THE SCOPE OF SEARCH.  THE
CALIFORNIA SUPREME COURT, WHICH HAD NO MORE SUBSTANTIAL BASIS UPON
WHICH TO RESOLVE THE CONFLICT THAN THIS COURT, STATED THAT THE PHOTOS
WERE COME UPON "WHILE THE OFFICERS WERE LOOKING THROUGH THE APARTMENT
FOR THEIR SUSPECT ...  ."  AS WILL APPEAR, A CONTRARY CONCLUSION IS
EQUALLY REASONABLE. 

(1)  AGENT SCHLATTER TESTIFIED THAT IMMEDIATELY UPON ENTERING THE
APARTMENT WHICH HE PUT AT "APPROXIMATELY 1:05," THE OFFICERS MADE A
QUICK SEARCH FOR THE OCCUPANT, WHICH TOOK AT MOST A MINUTE, AND THAT
THE CONTINUED PRESENCE OF THE OFFICERS BECAME "A MATTER OF A STAKE-OUT
UNDER THE ASSUMPTION THAT THE PERSON OR PERSONS INVOLVED WOULD COME
BACK."  HE TESTIFIED THAT THE OFFICER WHO FOUND THE PHOTOGRAPHS, AGENT
CROWLEY, HAD ENTERED THE APARTMENT WITH HIM.  AGENT SCHLATTER'S
TESTIMONY MIGHT SUPPORT THE CALIFORNIA SUPREME COURT'S VIEW OF THE
SCOPE OF SEARCH; (2) AGENT CROWLEY TESTIFIED THAT HE ARRIVED WITHIN
FIVE MINUTES AFTER AGENT SCHLATTER, "AROUND 1:30, GIVE OR TAKE A FEW
MINUTES EITHER WAY," THAT THE APARTMENT HAD ALREADY BEEN SEARCHED FOR
THE SUSPECTS, AND THAT HE WAS INSTRUCTED "TO LOOK THROUGH THE APARTMENT
FOR ANYTHING WE COULD FIND THAT WE COULD USE TO IDENTIFY OR CONTINUE
THE PURSUIT OF THIS PERSON WITHOUT CONDUCTING A DETAILED SEARCH." 
CROWLEY'S FURTHER TESTIMONY WAS THAT THE SEARCH, PURSUANT TO WHICH THE
PHOTOS WERE FOUND, WAS LIMITED IN THIS MANNER, AND THAT HE MERELY
INSPECTED OBJECTS IN PLAIN SIGHT WHICH WOULD AID IN IDENTIFICATION.  HE
STATED THAT A DETAILED SEARCH FOR GUNS AND MONEY WAS NOT CONDUCTED
UNTIL AFTER A WARRANT HAD ISSUED OVER THREE HOURS LATER.  (3) AGENT
TOWNSEND SAID HE ARRIVED AT THE APARTMENT "SOMETIME BETWEEN PERHAPS
1:30 AND 2:00," AND THAT "WELL WITHIN AN HOUR" HE, AGENT CROWLEY,
ANOTHER AGENT AND A LOCAL OFFICER CONDUCTED A DETAILED SEARCH OF THE
BEDROOM.  HE STATED THAT THEY "LOOKED THROUGH THE BEDROOM CLOSET AND
DRESSER AND I THINK  ...  THE HEADSTAND."  A SUBSTANTIAL SUM OF MONEY
WAS FOUND IN THE DRESSER.  TOWNSEND COULD NOT "SPECIFICALLY SAY"
WHETHER CROWLEY WAS IN THE BEDROOM AT THE TIME THE MONEY WAS FOUND. 
THIS TESTIMONY MIGHT SUPPORT A FINDING THAT THE OFFICERS WERE ENGAGED
IN A GENERAL SEARCH OF THE BEDROOM AT THE TIME THE PHOTOS WERE FOUND. 

THE TESTIMONY OF THE AGENTS CONCERNING THEIR TIME OF ARRIVAL IN THE
APARTMENT IS NOT INCONSISTENT WITH ANY OF THE THREE POSSIBLE
CONCLUSIONS AS TO THE SCOPE OF SEARCH.  TAKING TOWNSEND'S TESTIMONY
TOGETHER WITH CROWLEY'S, IT CAN BE CONCLUDED THAT THE TWO ARRIVED AT
ABOUT THE SAME TIME.  AGENT SCHLATTER'S TESTIMONY THAT CROWLEY ARRIVED
WITH HIM AT 1:05, HOWEVER, SUPPORTS A CONCLUSION THAT CROWLEY HAD BEGUN
HIS ACTIVITIES BEFORE TOWNSEND ARRIVED.  THEN THERE IS THE TESTIMONY OF
AGENT KIEL, WHO DID NOT ENTER THE APARTMENT, THAT HE OBTAINED THE
PHOTOS WHILE TALKING WITH THE LANDLADY "APPROXIMATELY 1:25 TO 1:30,"
ABOUT THE SAME TIME THAT BOTH CROWLEY AND TOWNSEND TESTIFIED THEY
ARRIVED.  IN SUM, THE TESTIMONY CONCERNING THE TIMING OF THE EVENTS
SURROUNDING THE SEARCH IS BOTH APPROXIMATE AND ITSELF CONTRADICTORY. 

MR. JUSTICE BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

PETITIONER WAS CONVICTED OF ROBBERY AND MURDER PARTIALLY ON THE BASIS
OF HANDWRITING SAMPLES HE HAD GIVEN TO THE POLICE WHILE HE WAS IN
CUSTODY WITHOUT COUNSEL AND PARTIALLY ON EVIDENCE THAT HE HAD BEEN
IDENTIFIED BY EYEWITNESSES AT A LINEUP IDENTIFICATION CEREMONY HELD BY
CALIFORNIA OFFICERS IN A LOS ANGELES AUDITORIUM WITHOUT NOTICE TO HIS
COUNSEL.  THE COURT'S OPINION SHOWS THAT THE OFFICERS TOOK GILBERT TO
THE AUDITORIUM WHILE HE WAS A PRISONER, FORMED A LINEUP OF GILBERT AND
OTHER PERSONS, REQUIRED EACH ONE TO STEP FORWARD, ASKED THEM CERTAIN
QUESTIONS, AND REQUIRED THEM TO REPEAT CERTAIN PHRASES, WHILE
EYEWITNESSES TO THIS AND OTHER CRIMES LOOKED AT THEM IN EFFORTS TO
IDENTIFY THEM AS THE CRIMINALS.  AT HIS TRIAL, GILBERT OBJECTED TO THE
HANDWRITING SAMPLES AND TO THE IDENTIFICATION TESTIMONY GIVEN BY
WITNESSES WHO SAW HIM AT THE AUDITORIUM LINEUP ON THE GROUND THAT THE
ADMISSION OF THIS EVIDENCE WOULD VIOLATE HIS FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION AND SIXTH AMENDMENT RIGHT TO COUNSEL.  IT IS
WELL-ESTABLISHED NOW THAT THE FOURTEENTH AMENDMENT MAKES BOTH THE SELF
INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT AND THE RIGHT TO COUNSEL
CLAUSE OF THE SIXTH AMENDMENT OBLIGATORY ON THE STATES.  SEE, E.G.,
MALLOY V. HOGAN, 378 U.S. 1; GIDEON V. WAINWRIGHT, 372 U.S. 335. 

            I. 

(A)  RELYING ON SCHMERBER V. CALIFORNIA, 384 U.S. 757, THE COURT
REJECTS GILBERT'S FIFTH AMENDMENT CONTENTION AS TO BOTH THE HANDWRITING
EXEMPLARS AND THE LINEUP IDENTIFICATION.  I DISSENT FROM THAT HOLDING. 
FOR REASONS SET OUT IN MY SEPARATE OPINION IN UNITED STATE V. WADE,
ANTE, P. 243, AS WELL AS IN MY DISSENT TO SCHMERBER, 384 U.S., AT 773,
I THINK THAT CASE WHOLLY UNJUSTIFIABLY DETRACTS FROM THE PROTECTION
AGAINST COMPELLED SELF-INCRIMINATION THE FIFTH AMENDMENT WAS DESIGNED
TO AFFORD.   IT RESTS ON THE GROUND THAT COMPELLING A SUSPECT TO SUBMIT
TO OR ENGAGE IN CONDUCT THE SOLE PURPOSE OF WHICH IS TO SUPPLY EVIDENCE
AGAINST HIMSELF NONETHELESS DOES NOT COMPEL HIM TO BE A WITNESS AGAINST
HIMSELF.  COMPELLING A SUSPECT OR AN ACCUSED TO BE "THE SOURCE OF 'REAL
OR PHYSICAL EVIDENCE' ...  ," SO SAYS SCHMERBER, 384 U.S., AT 764, IS
NOT COMPELLING HIM TO BE A WITNESS AGAINST HIMSELF.  SUCH AN ARTIFICIAL
DISTINCTION BETWEEN THINGS THAT ARE IN REALITY THE SAME IS IN MY
JUDGMENT WHOLLY OUT OF LINE WITH THE LIBERAL CONSTRUCTION WHICH SHOULD
ALWAYS BE GIVEN TO THE BILL OF RIGHTS.  SEE BOYD V. UNITED STATES, 116
U.S. 616. 

(B)  THE COURT REJECTS GILBERT'S RIGHT-TO-COUNSEL CONTENTION IN
CONNECTION WITH THE HANDWRITING EXEMPLARS ON THE GROUND THAT THE TAKING
OF THE EXEMPLARS "WAS NOT A 'CRITICAL' STAGE OF THE CRIMINAL
PROCEEDINGS ENTITLING PETITIONER TO THE ASSISTANCE OF COUNSEL."  IN ALL
REALITY, HOWEVER, IT WAS ONE OF THE MOST "CRITICAL" STAGES OF THE
GOVERNMENT PROCEEDINGS THAT ENDED IN GILBERT'S CONVICTION.  AS TO BOTH
THE STATE'S CASE AND GILBERT'S DEFENSE, THE HANDWRITING EXEMPLARS WERE
JUST AS IMPORTANT AS THE LINEUP AND PERHAPS MORE SO, FOR HANDWRITING
ANALYSIS, BEING, AS THE COURT NOTES, "SCIENTIFIC" AND "SYSTEMATIZED,"
UNITED STATES V. WADE, ANTE, AT 227, MAY CARRY MUCH MORE WEIGHT WITH
THE JURY THAN ANY KIND OF LINEUP IDENTIFICATION.  THE COURT, HOWEVER,
SUGGESTS THAT ABSENCE OF COUNSEL WHEN HANDWRITING EXEMPLARS ARE
OBTAINED WILL NOT IMPAIR THE RIGHT OF CROSS-EXAMINATION AT TRIAL.  BUT
JUST AS NOTHING SAID IN OUR PREVIOUS OPINIONS "LINKS THE RIGHT TO
COUNSEL ONLY TO PROTECTION OF FIFTH AMENDMENT RIGHTS," UNITED STATES V.
WADE, ANTE, AT 226, NOTHING HAS BEEN SAID WHICH JUSTIFIES LINKING THE
RIGHT TO COUNSEL ONLY TO THE PROTECTION OF OTHER SIXTH AMENDMENT
RIGHTS.  AND THERE IS NOTHING IN THE CONSTITUTION TO JUSTIFY
CONSIDERING THE RIGHT TO COUNSEL AS A SECOND-CLASS, SUBSIDIARY RIGHT
WHICH ATTACHES ONLY WHEN THE COURT DEEMS OTHER SPECIFIC RIGHTS IN
JEOPARDY.  THE REAL BASIS FOR THE COURT'S HOLDING THAT THE STAGE OF
OBTAINING HANDWRITING EXEMPLARS IS NOT "CRITICAL," IS ITS STATEMENT
THAT "THERE IS MINIMAL RISK THAT THE ABSENCE OF COUNSEL MIGHT DEROGATE
FROM HIS RIGHT TO A FAIR TRIAL."  THE COURT CONSIDERS THE "RIGHT TO A
FAIR TRIAL" TO BE THE OVERRIDING "AIM OF THE RIGHT TO COUNSEL," UNITED
STATES V. WADE, ANTE, AT 226, AND SOMEHOW BELIEVES THAT THIS COURT HAS
THE POWER TO BALANCE AWAY THE CONSTITUTIONAL GUARANTEE OF RIGHT TO
COUNSEL WHEN THE COURT BELIEVES IT UNNECESSARY TO PROVIDE WHAT THE
COURT CONSIDERS A "FAIR TRIAL."  BUT I THINK THIS COURT LACKS
CONSTITUTIONAL POWER THUS TO BALANCE AWAY A DEFENDANT'S ABSOLUTE RIGHT
TO COUNSEL WHICH THE SIXTH AND FOURTEENTH AMENDMENTS GUARANTEE HIM. 
THE FRAMERS DID NOT DECLARE IN THE SIXTH AMENDMENT THAT A DEFENDANT IS
ENTITLED TO A "FAIR TRIAL," NOR THAT HE IS ENTITLED TO COUNSEL ON THE
CONDITION THAT THIS COURT THINKS THERE IS MORE THAN A "MINIMAL RISK"
THAT WITHOUT A LAWYER HIS TRIAL WILL BE "UNFAIR."  THE SIXTH AMENDMENT
SETTLED THAT A TRIAL WITHOUT A LAWYER IS CONSTITUTIONALLY UNFAIR,
UNLESS THE COURT-CREATED BALANCING FORMULA HAS SOMEHOW CHANGED IT.
JOHNSON V. ZERBST, 304 U.S. 458, AND GIDEON V. WAINWRIGHT, 372 U.S.
335, I THOUGHT FINALLY ESTABLISHED THE RIGHT OF AN ACCUSED TO COUNSEL
WITHOUT BALANCING OF ANY KIND. 

THE COURT'S HOLDING HERE ILLUSTRATES THE DANGER TO BILL OF RIGHTS
GUARANTEES IN THE USE OF WORDS LIKE A "FAIR TRIAL" TO TAKE THE PLACE OF
THE CLEARLY SPECIFIED SAFEGUARDS OF THE CONSTITUTION.  I THINK IT FAR
SAFER FOR CONSTITUTIONAL RIGHTS FOR THIS COURT TO ADHERE TO
CONSTITUTIONAL LANGUAGE LIKE "THE ACCUSED SHALL  ...  HAVE THE
ASSISTANCE OF COUNSEL FOR HIS DEFENCE" INSTEAD OF SUBSTITUTING THE
WORDS NOT MENTIONED, "THE ACCUSED SHALL HAVE THE ASSISTANCE OF COUNSEL
ONLY IF THE SUPREME COURT THINKS IT NECESSARY TO ASSURE A FAIR TRIAL." 
IN MY JUDGMENT THE GUARANTEES OF THE CONSTITUTION WITH ITS BILL OF
RIGHTS PROVIDE THE KIND OF "FAIR TRIAL" THE FRAMERS SOUGHT TO PROTECT. 
GILBERT WAS ENTITLED TO HAVE THE "ASSISTANCE OF COUNSEL" WHEN HE WAS
FORCED TO SUPPLY EVIDENCE FOR THE GOVERNMENT TO USE AGAINST HIM AT HIS
TRIAL.  I WOULD REVERSE THE CASE FOR THIS REASON ALSO. 

                         II. 

I AGREE WITH THE COURT THAT GILBERT'S CASE SHOULD NOT BE REVERSED FOR
STATE ERROR IN ADMITTING THE PRETRIAL STATEMENTS OF AN ACCOMPLICE WHICH
REFERRED TO GILBERT.  BUT INSTEAD OF SQUARELY REJECTING PETITIONER'S
RELIANCE ON THE DISSENT IN DELLI PAOLI V. UNITED STATES, 352 U.S. 232,
246, THE COURT AVOIDS THE ISSUE BY POINTING TO THE FACT THAT THE
CALIFORNIA SUPREME COURT, EVEN ASSUMING THE ERROR TO BE A FEDERAL
CONSTITUTIONAL ONE, APPLIED A HARMLESS-ERROR TEST WHICH MEASURES UP TO
THE ONE WE SUBSEQUENTLY ENUNCIATED IN CHAPMEN V. CALIFORNIA, 386 U.S.
18.  AND THE COURT THEN GOES ON TO SUGGEST THAT THE CALIFORNIA SUPREME
COURT MAY DESIRE TO RECONSIDER WHETHER THAT IS SO UPON REMAND. 

I THINK THE COURT SHOULD CLEARLY INDICATE THAT NEITHER DELLI PAOLI
NOR CHAPMAN HAS ANY RELEVANCE HERE.  DELLI PAOLI RESTED ON THE
ADMISSIBILITY OF EVIDENCE IN FEDERAL, NOT STATE, COURTS.  THE
INTRODUCTION OF EVIDENCE IN STATE COURTS IS EXCLUSIVELY GOVERNED BY
STATE LAW UNLESS ITS INTRODUCTION WOULD VIOLATE SOME FEDERAL
CONSTITUTIONAL PROVISION AND THERE IS NO SUCH FEDERAL PROVISION HERE. 
SEE SPENCER V. TEXAS, 385 U.S. 554.  THAT BEING SO, ANY ERROR IN
ADMITTING THE ACCOMPLICE'S PRETRIAL STATEMENTS IS ONLY AN ERROR OF
STATE LAW, AND CHAPMEN, PROVIDING A FEDERAL CONSTITUTIONAL HARMLESS
ERROR RULE, HAS ABSOLUTELY NO RELEVANCE HERE.  INSTEAD OF LOOKING AT
THE HARMLESS-ERROR TEST APPLIED BY THE CALIFORNIA SUPREME COURT IN
ORDER TO ASCERTAIN WHETHER IT COMPORTS WITH CHAPMAN, I WOULD MAKE IT
CLEAR THAT THIS COURT IS LEAVING TO THE STATES THEIR UNBRIDLED POWER TO
CONTROL THEIR OWN STATE COURTS IN THE ABSENCE OF CONFLICTING FEDERAL
CONSTITUTIONAL PROVISIONS. 

                                        III. 

ONE WITNESS WHO IDENTIFIED GILBERT AT THE GUILT STAGE OF HIS TRIAL
AND EIGHT WITNESSES WHO IDENTIFIED HIM AT THE PENALTY STAGE TESTIFIED
ON DIRECT EXAMINATION THAT THEY HAD IDENTIFIED HIM IN THE AUDITORIUM
LINEUP.  I AGREE WITH THE COURT THAT THE ADMISSION OF THIS TESTIMONY
WAS CONSTITUTIONAL ERROR AND THAT GILBERT IS ENTITLED TO A NEW TRIAL
UNLESS THE STATE COURTS, APPLYING CHAPMAN, CONCLUDE THAT THIS ERROR WAS
HARMLESS.  HOWEVER, THESE WITNESSES ALSO IDENTIFIED GILBERT IN THE
COURTROOM AND TWO OTHER WITNESSES AT THE GUILT STAGE IDENTIFIED HIM
SOLELY IN THE COURTROOM.  AS TO THESE, THE COURT HOLDS THAT "THE
ADMISSION OF THE IN-COURT IDENTIFICATIONS WITHOUT FIRST DETERMINING
THAT THEY WERE NOT TAINTED BY THE ILLEGAL LINEUP  ...  WAS
CONSTITUTIONAL ERROR."  I DISSENT FROM THIS HOLDING IN THIS CASE AND IN
UNITED STATES V. WADE, ANTE, P. 243, FOR THE REASONS THERE GIVEN. 

FOR THE REASONS HERE STATED, I WOULD VACATE THE JUDGMENT OF THE
CALIFORNIA SUPREME COURT AND REMAND FOR CONSIDERATION OF WHETHER THE
ADMISSION OF THE HANDWRITING EXEMPLARS AND THE OUT-OF-COURT LINEUP
IDENTIFICATION WAS HARMLESS ERROR.* 

*THE COURT DISMISSES AS IMPROVIDENTLY GRANTED THE FOURTH AMENDMENT
SEARCH-AND-SEIZURE QUESTION RAISED BY GILBERT IN THIS CASE.  I DISSENT
FROM THIS, BECAUSE I WOULD DECIDE THAT QUESTION AGAINST GILBERT. 
HOWEVER, SINCE THE COURT REFUSES TO DECIDE THAT QUESTION, I SEE NO
REASON FOR EXPRESSING MY VIEWS AT LENGTH. 

MR. JUSTICE DOUGLAS, CONCURRING IN PART AND DISSENTING IN PART. 

WHILE I AGREE WITH THE COURT'S OPINION EXCEPT FOR PART I,*  I WOULD
REVERSE AND REMAND FOR A NEW TRIAL ON THE SEARCH AND SEIZURE POINT. 
THE SEARCH OF THE PETITIONER'S HOME IS SOUGHT TO BE JUSTIFIED BY THE
DOCTRINE OF "HOT PURSUIT," EVEN THOUGH THE OFFICERS CONDUCTING THE
SEARCH KNEW THAT PETITIONER, THE SUSPECTED CRIMINAL WAS NOT AT HOME. 

*ON THAT PHASE OF THE CASE I AGREE WITH MR. JUSTICE BLACK AND MR.
JUSTICE FORTAS. 

AT ABOUT 10:30 A.M. ON JANUARY 3, 1964, A CALIFORNIA BANK WAS ROBBED
BY TWO ARMED MEN; A POLICE OFFICER WAS KILLED BY ONE OF THE ROBBERS. 
ANOTHER OFFICER SHOT ONE OF THE ROBBERS, WEAVER, WHO WAS CAPTURED A FEW
BLOCKS FROM THE SCENE OF THE CRIME.  WEAVER TOLD THE POLICE THAT HE HAD
PARTICIPATED IN THE ROBBERY AND THAT A PERSON KNOWN TO HIM AS "SKINNY"
GILBERT WAS HIS ACCOMPLICE.  HE TOLD THE OFFICERS THAT GILBERT LIVED IN
APARTMENT 28 OF "A HAWAIIAN SOUNDING NAMED APPARTMENT HOUSE" ON LOS
FELIZ BOULEVARD.  THIS INFORMATION WAS GIVEN TO THE FEDERAL BUREAU OF
INVESTIGATION AND WAS BROADCAST TO A FIELD AGENT, KIEL, WHO WAS
INSTRUCTED TO FIND THE APARTMENT.  KIEL LOCATED THE "LANAI," AN
APARTMENT ON LOS FELIZ BOULEVARD, AT ABOUT 1 P.M., INFORMED THE RADIO
CONTROL, AND ENGAGED THE APARTMENT MANAGER IN CONVERSATION.  WHILE THEY
WERE TALKING, A MAN GAVE A KEY TO THE MANAGER AND TOLD HER THAT HE WAS
GOING TO SAN FRANCISCO FOR A FEW DAYS.  AGENT KIEL LEARNED FROM THE
MANAGER THAT FLOOD, ONE OF THE TWO MEN WHO HAD RENTED APARTMENT 28 THE
PREVIOUS DAY, WAS THE MAN WHO HAD JUST TURNED IN THE KEY AND LEFT BY
THE REAR EXIT.  THE AGENT RAN OUT INTO THE ALLEYWAY BUT SAW NO ONE. 

IN THE MEANTIME, THE FEDERAL OFFICERS LEARNED FROM WEAVER THAT
GILBERT WAS REGISTERED UNDER THE NAME OF FLOOD.  THEY ALSO LEARNED THAT
THREE MEN MAY HAVE BEEN INVOLVED IN THE ROBBERY - THE TWO WHO ENTERED
THE BANK AND A THIRD DRIVING THE GETAWAY CAR.  ABOUT 1:10 P.M.,
ADDITIONAL FEDERAL AGENTS ARRIVED AT THE APARTMENT, IN RESPONSE TO
AGENT KIEL'S RADIO SUMMONS.  KIEL TOLD THEM THAT THE RESIDENT OF
APARTMENT 28 WAS A ROBERT FLOOD WHO HAD JUST LEFT.  THE AGENTS OBTAINED
A KEY FROM THE MANAGER, ENTERED THE APARTMENT AND SEARCHED FOR A PERSON
OR A HIDING PLACE FOR A PERSON.  THEY FOUND NO ONE.  BUT THEY DID FIND
AN ENVELOPE CONTAINING PICTURES OF PETITIONER; THE PICTURES WERE SEIZED
AND SHOWN TO BANK EMPLOYEES FOR IDENTIFICATION.  THE AGENTS ALSO FOUND
A NOTEBOOK CONTAINING A DIAGRAM OF THE AREA SURROUNDING THE BANK, A
CLIP FROM AN AUTOMATIC PISTOL, AND A BAG CONTAINING ROLLS OF COINS
BEARING THE MARKING OF THE ROBBED BANK.  ON THE BASIS OF THIS
INFORMATION, A SEARCH WARRANT WAS ISSUED, AND THE AUTOMATIC CLIP,
NOTEBOOK, AND COIN ROLLS WERE SEIZED.  PETITIONER WAS ARRESTED IN
PENNSYLVANIA ON FEBRUARY 26.  THE ITEMS SEIZED DURING THE SEARCH OF HIS
APARTMENT WERE INTRODUCED IN EVIDENCE AT HIS TRIAL FOR MURDER. 

THE CALIFORNIA SUPREME COURT JUSTIFIED THE SEARCH ON THE GROUND THAT
THE POLICE WERE IN HOT PURSUIT OF THE SUSPECTED BANK ROBBERS.  THE
ENTRY OF THE APARTMENT WAS LAWFUL.  THE SUBSEQUENT SEARCH AND SEIZURE
WAS LAWFUL SINCE THE OFFICERS WERE TRYING TO FURTHER IDENTIFY SUSPECTS
AND TO FACILITATE CONTINUED PURSUIT.  63 CAL. 2D 690, 408 P.2D 365. 

I HAVE SET FORTH THE TESTIMONY RELATING TO THE SEARCH MORE FULLY IN
THE APPENDIX TO THIS OPINION.  FOR THE REASONS STATED THERE, I CANNOT
AGREE THAT "THE FACTS DO NOT APPEAR WITH SUFFICIENT CLARITY TO ENABLE
US TO DECIDE" THE SERIOUS QUESTION PRESENTED. 

SINCE THE SEARCH AND SEIZURE TOOK PLACE WITHOUT A WARRANT, IT CAN
STAND ONLY IF IT COMES WITHIN ONE OF THE NARROWLY DEFINED EXCEPTIONS TO
THE RULE THAT A SEARCH AND SEIZURE MUST REST UPON A VALIDLY EXECUTED
SEARCH WARRANT.  SEE, E.G., UNITED STATES V. JEFFERS, 342 U.S. 48, 51;
JONES V. UNITED STATES, 357 U.S. 493; RIOS V. UNITED STATES, 364 U.S.
253, 261; STONER V. CALIFORNIA, 376 U.S. 483, 486.  ONE OF THESE
EXCEPTIONS IS THAT OFFICERS HAVING PROBABLE CAUSE TO ARREST MAY ENTER A
DWELLING TO MAKE THE ARREST AND CONDUCT A CONTEMPORANEOUS SEARCH OF THE
PLACE OF ARREST "IN ORDER TO FIND AND SEIZE THINGS CONNECTED WITH THE
CRIME AS ITS FRUITS OR AS THE MEANS BY WHICH IT WAS COMMITTED, AS WELL
AS WEAPONS AND OTHER THINGS TO EFFECT AN ESCAPE FROM CUSTODY."  AGNELLO
V. UNITED STATES, 269 U.S. 20, 30.  THIS, OF COURSE, ASSUMES THAT AN
ARREST HAS BEEN MADE, AND THAT THE SEARCH "IS SUBSTANTIALLY
CONTEMPORANEOUS WITH THE ARREST AND IS CONFINED TO THE IMMEDIATE
VICINITY OF THE ARREST."  STONER V. CALIFORNIA, SUPRA, AT 486.  IN THIS
CASE, THE EXEMPTION IS NOT APPLICABLE SINCE THE ARREST WAS MADE MANY
DAYS AFTER THE SEARCH AND AT A LOCATION FAR REMOVED FROM THE SEARCH. 

HERE, THE OFFICERS ENTERED THE APARTMENT, SEARCHED FOR PETITIONER AND
DID NOT FIND HIM.  NEVERTHELESS, THEY CONTINUED SEARCHING THE APARTMENT
AND SEIZED THE PICTURES; THE INESCAPABLE CONCLUSION IS THAT THEY WERE
SEARCHING FOR EVIDENCE LINKING PETITIONER TO THE BANK ROBBERY, NOT FOR
THE SUSPECTED ROBBERS.  THE COURT BELOW SAID THAT, HAVING LEGALLY
ENTERED THE APARTMENT, THE OFFICERS "COULD PROPERLY LOOK THROUGH THE
APARTMENT FOR ANYTHING THAT COULD BE USED TO IDENTIFY THE SUSPECTS OR
TO EXPEDITE THE PURSUIT."  63 CAL. 2D, AT 707, 408 P.2D, AT 375. 

PRIOR TO THIS CASE, POLICE COULD ENTER AND SEARCH A HOUSE WITHOUT A
WARRANT ONLY INCIDENTAL TO A VALID ARREST.  IF THIS JUDGMENT STANDS,
THE POLICE CAN SEARCH A HOUSE FOR EVIDENCE, EVEN THOUGH THE SUSPECT IS
NOT ARRESTED.  THE PURPOSE OF THE SEARCH IS, IN THE WORDS OF THE
CALIFORNIA SUPREME COURT, "LIMITED TO AND INCIDENT TO THE PURPOSE OF
THE OFFICERS' ENTRY" - THAT IS, TO APPREHEND THE SUSPECTED CRIMINAL. 
UNDER THAT DOCTRINE, THE POLICE ARE GIVEN LICENSE TO SEARCH FOR ANY
EVIDENCE LINKING THE HOMEOWNER WITH THE CRIME.  CERTAINLY SUCH EVIDENCE
IS WELL CALCULATED "TO IDENTIFY THE SUSPECTS," AND WILL "EXPEDITE THE
PURSUIT" SINCE THE POLICE CAN THEN CONCENTRATE ON THE PERSON WHOSE HOME
HAS BEEN RANSACKED.  IBID. 

THE SEARCH AND SEIZURE IN THIS CASE VIOLATES ANOTHER LIMITATION,
WHICH CONCEDEDLY THE ILL-STARRED DECISION IN HARRIS V. UNITED STATES,
331 U.S. 145, FLOUTED, VIZ., THAT A GENERAL SEARCH FOR EVIDENCE, EVEN
WHEN THE POLICE ARE IN "HOT PURSUIT" OR HAVE A WARRANT OF ARREST, DOES
NOT MAKE CONSTITUTIONAL A GENERAL SEARCH OF A ROOM OR OF A HOUSE
(UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 463-464).  IF IT DID, THEN
THE POLICE, ACTING WITHOUT A SEARCH WARRANT, COULD SEARCH MORE
EXTENSIVELY THAN WHEN THEY HAVE A WARRANT.  FOR THE WARRANT MUST, AS
PRESCRIBED BY THE FOURTH AMENDMENT, "PARTICULARLY" DESCRIBE THE "THINGS
TO BE SEIZED."  AS STATED BY THE COURT IN UNITED STATES V. LEFKOWITZ,
SUPRA, AT 464: 

"THE AUTHORITY OF OFFICERS TO SEARCH ONE'S HOUSE OR PLACE OF BUSINESS
CONTEMPORANEOUSLY WITH HIS LAWFUL ARREST THEREIN UPON A VALID WARRANT
OF ARREST CERTAINLY IS NOT GREATER THAN THAT CONFERRED BY A SEARCH
WARRANT ISSUED UPON ADEQUATE PROOF AND SUFFICIENTLY DESCRIBING THE
PREMISES AND THE THINGS SOUGHT TO BE OBTAINED.  INDEED, THE INFORMED
AND DELIBERATE DETERMINATIONS OF MAGISTRATES EMPOWERED TO ISSUE
WARRANTS AS TO WHAT SEARCHES AND SEIZURES ARE PERMISSIBLE UNDER THE
CONSTITUTION ARE TO BE PREFERRED OVER THE HURRIED ACTION OF OFFICERS
AND OTHERS WHO MAY HAPPEN TO MAKE ARRESTS.  SECURITY AGAINST UNLAWFUL
SEARCHES IS MORE LIKELY TO BE ATTAINED BY RESORT TO SEARCH WARRANTS
THAN BY RELIANCE UPON THE CAUTION AND SAGACITY OF PETTY OFFICERS WHILE
ACTING UNDER THE EXCITEMENT THAT ATTENDS THE CAPTURE OF PERSONS ACCUSED
OF CRIME."    INDEED, IF AT THE VERY START, THERE HAD BEEN A SEARCH
WARRANT AUTHORIZING THE SEIZURE OF THE AUTOMATIC CLIP, NOTEBOOK, AND
COIN ROLLS, THE ENVELOPE CONTAINING PICTURES OF PETITIONER COULD NOT
HAVE BEEN SEIZED.  "THE REQUIREMENT THAT WARRANTS SHALL PARTICULARLY
DESCRIBE THE THINGS TO BE SEIZED  ...  PREVENTS THE SEIZURE OF ONE
THING UNDER A WARRANT DESCRIBING ANOTHER.  AS TO WHAT IS TO BE TAKEN,
NOTHING IS LEFT TO THE DISCRETION OF THE OFFICER EXECUTING THE
WARRANT."  MARRON V. UNITED STATES, 275 U.S. 192, 196.    THE MODERN
POLICE TECHNIQUE OF RANSACKING HOUSES, EVEN TO THE POINT OF SEIZING
THEIR ENTIRE CONTENTS AS WAS DONE IN KREMEN V. UNITED STATES, 353 U.S.
346, IS A SHOCKING DEPARTURE FROM THE PHILOSOPHY OF THE FOURTH
AMENDMENT.  FOR THE KIND OF SEARCH CONDUCTED HERE WAS INDEED A GENERAL
SEARCH.  AND IF THE FOURTH AMENDMENT WAS AIMED AT ANY PARTICULAR TARGET
IT WAS AIMED AT THAT.  WHEN WE TAKE THAT STEP, WE RESURRECT ONE OF THE
DEEPEST-ROOTED COMPLAINTS THAT GAVE RISE TO OUR REVOLUTION.  AS THE
COURT STATED IN BOYD V. UNITED STATES, 116 U.S. 616, 625: 

"THE PRACTICE HAD OBTAINED IN THE COLONIES OF ISSUING WRITS OF
ASSISTANCE TO THE REVENUE OFFICERS, EMPOWERING THEM, IN THEIR
DISCRETION, TO SEARCH SUSPECTED PLACES FOR SMUGGLED GOODS, WHICH JAMES
OTIS PRONOUNCED 'THE WORST INSTRUMENT OF ARBITRARY POWER, THE MOST
DESTRUCTIVE OF ENGLISH LIBERTY, AND THE FUNDAMENTAL PRINCIPLES OF LAW,
THAT EVER WAS FOUND IN AN ENGLISH LAW BOOK'; SINCE THEY PLACED 'THE
LIBERTY OF EVERY MAN IN THE HANDS OF EVERY PETTY OFFICER.'  THIS WAS IN
FEBRUARY, 1761, IN BOSTON, AND THE FAMOUS DEBATE IN WHICH IT OCCURRED
WAS PERHAPS THE MOST PROMINENT EVENT WHICH INAUGURATED THE RESISTANCE
OF THE COLONIES TO THE OPPRESSIONS OF THE MOTHER COUNTRY.  'THEN AND
THERE,' SAID JOHN ADAMS, 'THEN AND THERE WAS THE FIRST SCENE OF THE
FIRST ACT OF OPPOSITION TO THE ARBITRARY CLAIMS OF GREAT BRITAIN.  THEN
AND THERE THE CHILD INDEPENDENCE WAS BORN.'" 

I WOULD NOT ALLOW THE GENERAL SEARCH TO REAPPEAR ON THE AMERICAN
SCENE. 

                    APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. 

AS THE COURT NOTES, THERE IS SOME CONFUSION IN THE RECORD RESPECTING
THE TIMING OF EVENTS SURROUNDING THE SEARCH AND THE BREADTH OF PURPOSE
WITH WHICH THE SEARCH WAS CONDUCTED.  THE CONFUSION RESULTS FROM THE
TESTIMONY OF THE AGENTS INVOLVED. 

AGENT KIEL TESTIFIED THAT AGENTS SCHLATTER AND ONSGAARD ARRIVED AT
THE APARTMENT AT ABOUT 1:10 AND ENTERED THE APARTMENT A MINUTE OR TWO
AFTER THEIR ARRIVAL.  KIEL RECEIVED THE PHOTOGRAPHS FROM AGENT
SCHLATTER BETWEEN 1:25 AND 1:30. 

AGENT SCHLATTER TESTIFIED THAT HE, AGENT ONSGAARD AND SOME LOCAL
POLICE ARRIVED AT THE APARTMENT ABOUT 1:05 AND THAT AGENT CROWLEY AND
ONE OR TWO LOCAL POLICE OFFICERS ARRIVED IN ANOTHER CAR AT THE SAME
TIME.  SCHLATTER BRIEFLY TALKED TO KIEL AND THE APARTMENT MANAGER AND
THEN ENTERED THE APARTMENT.  UPON ENTERING HE SAW NO ONE.  HE "MADE A
VERY FAST SEARCH OF THE APARTMENT FOR A PERSON OR A HIDING PLACE OF A
PERSON AND  ...  FOUND NONE."  THIS SEARCH TOOK "A MATTER OF SECONDS OR
A MINUTE AT THE OUTSIDE" AND "AFTER WE HAD SEARCHED FOR A PERSON OR
PERSONS, AND NO ONE WAS THERE, IT THEN BECAME A MATTER OF A STAKE-OUT
UNDER THE ASSUMPTION THAT THE PERSON OR PERSONS INVOLVED WOULD COME
BACK."  IT SEEMED TO SCHLATTER THAT "AN AGENT HAD THE PHOTOGRAPH IN HIS
HAND," WHEN HE FIRST SAW IT, THAT IT "WAS IN THE HANDS OF AN AGENT OR
AN OFFICER," AND SCHLATTER HAD "A VAGUE RECOLLECTION THAT THE AGENT OR
OFFICER TOLD HIM HE HAD FOUND IT IN THE BEDROOM  ...  ."  THERE WERE A
NUMBER OF PHOTOGRAPHS.  SCHLATTER TOOK THE PHOTOGRAPHS OUT TO KIEL AND
INSTRUCTED HIM TO TAKE ONE OF THEM TO THE SAVINGS AND LOAN ASSOCIATION
AND SEE IF ANYONE THERE COULD RECOGNIZE THE PHOTOGRAPH.  SCHLATTER
TESTIFIED THAT HE WAS IN THE APARTMENT FOR ABOUT 30 MINUTES AFTER
MAKING THE SEARCH AND LEFT OTHER AGENTS BEHIND WHEN HE LEFT. 

AGENT CROWLEY TESTIFIED THAT HE ENTERED THE APARTMENT "AROUND 1:30,
GIVE OR TAKE A FEW MINUTES EITHER WAY" AND THAT HE WOULD SAY THAT THE
OTHER OFFICERS HAD BEEN IN THE APARTMENT LESS THAN FIVE MINUTES BEFORE
HE ENTERED.  HE BELIEVED THAT "THE OFFICERS AND THE OTHER AGENT WHO HAD
BEEN WITH HIM AT THE REAR OF THE BUILDING WHEN THE FIRST ENTRY WAS
MADE, ENTERED WITH HIM."  WHEN CROWLEY ENTERED THE APARTMENT IT "HAD
ALREADY BEEN SEARCHED FOR PEOPLE."  HE RECEIVED "INSTRUCTIONS  ...  TO
LOOK THROUGH THE APARTMENT FOR ANYTHING WE COULD FIND THAT WE COULD USE
TO IDENTIFY OR CONTINUE THE PURSUIT OF THIS PERSON WITHOUT CONDUCTING A
DETAILED SEARCH."  IN THE BEDROOM, ON THE DRESSER, CROWLEY SAW AN
ENVELOPE BEARING THE NAME "MARLBORO PHOTO STUDIO"; IT APPEARED TO HIM
TO BE AN ENVELOPE CONTAINING PHOTOS AND HE COULD SEE THAT THERE WAS
SOMETHING INSIDE.  CROWLEY OPENED THE ENVELOPE AND SAW SEVERAL COPIES
OF PHOTOGRAPHS.  HE DISCUSSED THE MATTER WITH "ONSGAARD WHO WAS IN
CHARGE IN THE BUILDING AND HE INSTRUCTED CROWLEY TO GIVE IT TO ANOTHER
AGENT FOR HIM TO UTILIZE IN PURSUING THE INVESTIGATION, AND HE WAS
REASONABLY CERTAIN THAT THAT AGENT WAS MR. SCHLATTER."  THIS WAS ABOUT
1:30 ACCORDING TO CROWLEY.  IN THE COURSE OF HIS SEARCH WHICH TURNED UP
THE PHOTOGRAPHS, CROWLEY "TURNED OVER ITEMS TO SEE WHAT WAS ON THE
REVERSE, SUCH AS BUSINESS CARDS, SALES SLIPS FROM LOCAL STORES, THAT
SORT OF ITEM WHICH MIGHT HAVE BEEN FOLDED AND WOULD APPEAR TO POSSIBLY
CONTAIN INFORMATION OF VALUE TO PURSUIT."  HE RELAYED THE INFORMATION
OBTAINED IN THIS MANNER TO THE MAN COORDINATING THE OPERATION.  CROWLEY
REMAINED IN THE APARTMENT UNTIL THE NEXT MORNING. 

AGENT TOWNSEND TESTIFIED THAT HE ARRIVED AT THE APARTMENT "SOMETIME
BETWEEN PERHAPS 1:30 AND 2:00."  WITHIN AN HOUR OF HIS ARRIVAL, HE
BEGAN A SEARCH.  TOWNSEND TESTIFIED THAT HE, AGENT CROWLEY, ANOTHER
AGENT AND A LOCAL OFFICER "LOOKED THROUGH THE BEDROOM CLOSET AND THE
DRESSER AND I THINK THE HEADSTAND."  THIS WAS AFTER IT WAS KNOWN THAT
NO ONE, OTHER THAN AGENTS AND POLICE OFFICERS, WAS IN THE APARTMENT. 
TOWNSEND STATED THAT THE AGENTS AND OFFICERS WERE "IN AND OUT OF THE
BEDROOM," THAT HE FOUND MONEY IN THE BEDROOM DRESSER ABOUT AN HOUR
AFTER HE ARRIVED IN THE APARTMENT, AND THAT HE COULD NOT "SAY
SPECIFICALLY" WHETHER CROWLEY WAS THERE AT THAT TIME. 

THUS, THERE IS SOME CONFLICT REGARDING THE TIMES AT WHICH THE EVENTS
TOOK PLACE AND WITH RESPECT TO THE NATURE OF THE SEARCHES CONDUCTED BY
THE VARIOUS OFFICERS.  THE WAY I READ THE RECORD, HOWEVER, IT IS NOT IN
SUCH A STATE "THAT THE FACTS DO NOT APPEAR WITH SUFFICIENT CLARITY TO
ENABLE US TO DECIDE" THE QUESTION PRESENTED.  CROWLEY'S TESTIMONY THAT
HE CAME UPON THE PHOTOGRAPHS WHILE SEARCHING "FOR ANYTHING  ...  THAT
WE COULD USE TO IDENTIFY OR CONTINUE THE PURSUIT" STANDS
UNCONTRADICTED, AS DOES HIS TESTIMONY THAT THE APARTMENT HAD ALREADY
BEEN SEARCHED FOR A PERSON PRIOR TO HIS SEARCH UNCOVERING THE
PHOTOGRAPHS.  SCHLATTER'S TESTIMONY THAT THE OPERATION "BECAME A MATTER
OF A STAKE-OUT" AFTER THE UNSUCCESSFUL SEARCH FOR A PERSON DOES NOT
CONTRADICT CROWLEY'S TESTIMONY.  A SEARCH FOR IDENTIFYING EVIDENCE IS
CERTAINLY COMPATIBLE WITH A "STAKE-OUT."  AND CROWLEY BEST KNEW WHAT HE
WAS DOING WHEN HE DISCOVERED THE PHOTOGRAPHS.  NOR DOES TOWNSEND'S
TESTIMONY THAT HE AND OTHERS, PERHAPS INCLUDING CROWLEY, CONDUCTED A
DETAILED SEARCH CONFLICT WITH CROWLEY'S TESTIMONY.  FIRST, THE RECORD
INDICATES THAT THE DETAILED SEARCH WAS CONDUCTED AFTER THE PHOTOGRAPHS
HAD BEEN FOUND.  ACCORDING TO THE TESTIMONY OF KIEL AND SCHLATTER,
SCHLATTER GAVE THE PHOTOGRAPHS TO KIEL AT ABOUT 1:30; ACCORDING TO
TOWNSEND, HE ARRIVED SOMETIME BETWEEN 1:30 AND 2.  SECOND, EVEN IF THE
DETAILED SEARCH TOOK PLACE BEFORE CROWLEY FOUND THE PHOTOGRAPHS AND
CROWLEY PARTICIPATED IN THAT SEARCH, THAT DOES NOT INDICATE THAT
CROWLEY'S SEARCH WHICH TURNED UP THE PHOTOGRAPHS WAS MORE LIMITED THAN
CROWLEY CLAIMED.  IF ANYTHING, IT WOULD INDICATE THAT HIS SEARCH WAS
MORE GENERAL THAN HE STATED.  FINALLY, TOWNSEND'S TESTIMONY AS TO THE
GENERAL SEARCH DOES NOT CONFLICT WITH SCHLATTER'S TESTIMONY THAT THE
OPERATION BECAME A "STAKE-OUT" AFTER THE SUSPECT WAS NOT FOUND.  AS I
HAVE SAID, A "STAKE-OUT" DOES NOT PRECLUDE A DETAILED SEARCH FOR
EVIDENCE.  AND, THE RECORD INDICATES THAT SCHLATTER WAS NOT IN THE
APARTMENT WHEN TOWNSEND AND THE OTHERS CONDUCTED THE DETAILED SEARCH. 

THE WAY I READ THE RECORD, THE PHOTOGRAPHS WERE DISCOVERED IN THE
COURSE OF A GENERAL SEARCH FOR EVIDENCE.  BUT EVEN IF CROWLEY IS NOT
BELIEVED AND HIS TESTIMONY RELATING TO THE NATURE OF HIS SEARCH IS
THROWN OUT AND IT IS SIMPLY ASSUMED THAT HE CAME UPON THE ENVELOPE IN
THE COURSE OF A SEARCH FOR THE SUSPECT, THERE WAS NO REASON TO PRY INTO
THE ENVELOPE AND SEIZE THE PICTURES - OTHER THAN TO OBTAIN EVIDENCE. 
AN ENVELOPE WOULD CONTAIN NEITHER THE SUSPECT NOR THE WEAPON. 

MR. JUSTICE WHITE, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE STEWART
JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN PARTS I, II, AND III OF THE COURT'S OPINION, BUT FOR THE
REASONS STATED IN MY SEPARATE OPINION IN UNITED STATES V. WADE, ANTE,
P. 250, I DISSENT FROM PART IV OF THE COURT'S OPINION AND WOULD
THEREFORE AFFIRM THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

I CONCUR IN THE RESULT - THE VACATION OF THE JUDGMENT OF THE
CALIFORNIA SUPREME COURT AND THE REMAND OF THE CASE - BUT I DO NOT
BELIEVE THAT IT IS ADEQUATE.  I WOULD REVERSE AND REMAND FOR A NEW
TRIAL ON THE ADDITIONAL GROUND THAT PETITIONER WAS ENTITLED BY THE
SIXTH AND FOURTEENTH AMENDMENTS TO BE ADVISED THAT HE HAD A RIGHT TO
COUNSEL BEFORE AND IN CONNECTION WITH HIS RESPONSE TO THE PROSECUTOR'S
DEMAND FOR A HANDWRITING EXEMPLAR. 

1.  THE GIVING OF A HANDWRITING EXEMPLAR IS A "CRITICAL STAGE" OF THE
PROCEEDING, AS MY BROTHER BLACK STATES.  IT IS A "CRITICAL STAGE" AS
MUCH AS IS A LINEUP.  SEE UNITED STATES V. WADE, ANTE, P. 218. 
DEPENDING UPON CIRCUMSTANCES, BOTH MAY BE INOFFENSIVE TO THE
CONSTITUTION, TOTALLY FAIR TO THE ACCUSED, AND ENTIRELY RELIABLE FOR
THE ADMINISTRATION OF JUSTICE.  ON THE OTHER HAND, EACH MAY BE
CONSTITUTIONALLY OFFENSIVE, TOTALLY UNFAIR TO THE ACCUSED, AND
PREJUDICIAL TO THE ASCERTAINMENT OF TRUTH.  AN ACCUSED WHOSE
HANDWRITING EXEMPLAR IS SOUGHT NEEDS COUNSEL:  IS HE TO WRITE "YOUR
MONEY OR YOUR LIFE?"  IS HE TO EMULATE THE HOLDUP NOTE BY USING RED
INK, BROWN PAPER, LARGE LETTERS, ETC.? IS THE DEMANDED HANDWRITING
EXEMPLAR, IN EFFECT, AN INCULPATION - A CONFESSION?  CF. THE ELOQUENT
ARGUMENTS AS TO THE NEED FOR COUNSEL, IN THE COURT'S OPINION IN UNITED
STATES V. WADE, SUPRA. 

2.  THE COURT TODAY APPEARS TO HOLD THAT AN ACCUSED MAY BE COMPELLED
TO GIVE A HANDWRITING EXEMPLAR.  CF. SCHMERBER V. CALIFORNIA, 384 U.S.
757 (1966).  PRESUMABLY, HE MAY BE PUNISHED IF HE ADAMANTLY REFUSES. 
UNLIKE BLOOD, HANDWRITING CANNOT BE EXTRACTED BY A DOCTOR FROM AN
ACCUSED'S VEINS WHILE THE ACCUSED IS SUBJECTED TO PHYSICAL RESTRAINT,
WHICH SCHMERBER PERMITS.  SO PRESUMABLY, ON THE BASIS OF THE COURT'S
DECISION, TRIAL COURTS MAY HOLD AN ACCUSED IN CONTEMPT AND KEEP HIM IN
JAIL - INDEFINITELY - UNTIL HE GIVES A HANDWRITING EXEMPLAR. 

THIS DECISION GOES BEYOND SCHMERBER.  HERE THE ACCUSED, IN THE
ABSENCE OF ANY WARNING THAT HE HAS A RIGHT TO COUNSEL, IS COMPELLED TO
COOPERATE, NOT MERELY TO SUBMIT; TO ENGAGE IN A VOLITIONAL ACT, NOT
MERELY TO SUFFER THE INEVITABLE CONSEQUENCES OF ARREST AND STATE
CUSTODY; TO TAKE AFFIRMATIVE ACTION WHICH MAY NOT MERELY IDENTIFY HIM,
BUT TIE HIM DIRECTLY TO THE CRIME.  I DISSENTED IN SCHMERBER.  FOR
REASONS STATED IN MY SEPARATE OPINION IN UNITED STATES V. WADE, SUPRA,
I REGARD THE EXTENSION OF SCHMERBER AS IMPERMISSIBLE. 

IN WADE, THE ACCUSED, WHO IS COMPELLED TO UTTER THE WORDS USED BY THE
CRIMINAL IN THE HEAT OF HIS ACT, HAS AT LEAST THE COMFORT OF COUNSEL -
EVEN IF THE COURT DENIES THAT THE ACCUSED MAY REFUSE TO SPEAK THE WORDS
- BECAUSE THE COMPELLED UTTERANCE OCCURS IN THE COURSE OF A LINEUP.  IN
THE PRESENT CASE, THE COURT DEPRIVES HIM OF EVEN THIS SOURCE OF COMFORT
AND WHATEVER PROTECTION COUNSEL'S INGENUITY COULD PROVIDE IN FACE OF
THE COURT'S OPINION.  THIS IS UTTERLY INSUPPORTABLE, IN MY RESPECTFUL
OPINION.  THIS IS NOT LIKE FINGERPRINTING, MEASURING, PHOTOGRAPHING -
OR EVEN BLOOD-TAKING.  IT IS A PROCESS INVOLVING THE USE OF
DISCRETION.  IT IS CAPABLE OF ABUSE.  IT IS IN THE STREAM OF
INCULPATION.  CROSS-EXAMINATION CAN PLAY ONLY A LIMITED ROLE IN
OFFSETTING FALSE INFERENCE OR MISLEADING COINCIDENCE FROM A "STACKED"
HANDWRITING EXEMPLAR.  THE COURT'S REFERENCE TO THE EFFICACY OF CROSS
EXAMINATION IN THIS SITUATION IS MUCH MORE OF A COMFORT TO AN APPELLATE
COURT THAN A SOURCE OF SOLACE TO THE DEFENDANT AND HIS COUNSEL. 

3.  I AGREE WITH THE COURT'S CONDEMNATION OF THE LINEUP
IDENTIFICATIONS HERE AND THE CONSEQUENT IN-COURT IDENTIFICATIONS, AND I
JOIN IN THIS PART OF ITS OPINION.  I WOULD ALSO REVERSE AND REMAND FOR
A NEW TRIAL BECAUSE OF THE USE OF THE HANDWRITING EXEMPLARS WHICH WERE
UNCONSTITUTIONALLY OBTAINED IN THE ABSENCE OF ADVICE TO THE ACCUSED AS
TO THE AVAILABILITY OF COUNSEL.  I COULD NOT CONCLUDE THAT THE
VIOLATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION IMPLICIT IN THE
FACTS RELATING TO THE EXEMPLARS WAS WAIVED IN THE ABSENCE OF ADVICE AS
TO COUNSEL.  IN RE GAULT, 387 U.S. 1, 41-42 (1967); MIRANDA V. ARIZONA,
384 U.S. 436 (1966). 
..END :





STOVALL V. DENNO 388 U.S. 293 


NO. 254.  ARGUED FEBRUARY 16, 1967.  - DECIDED JUNE 12, 1967.  - 355
F.2D 731, AFFIRMED. 


PETITIONER WAS CONVICTED AND SENTENCED TO DEATH FOR MURDERING ONE DR.
BEHRENDT.  HE HAD BEEN ARRESTED THE DAY AFTER THE MURDER AND WITHOUT
BEING AFFORDED TIME TO RETAIN COUNSEL WAS TAKEN BY POLICE OFFICERS, TO
ONE OF WHOM HE WAS HANDCUFFED, TO BE VIEWED AT THE HOSPITAL BY MRS.
BEHRENDT, WHO HAD BEEN SERIOUSLY WOUNDED BY HER HUSBAND'S ASSAILANT. 
AFTER OBSERVING HIM AND HEARING HIM SPEAK AS DIRECTED BY AN OFFICER,
MRS. BEHRENDT IDENTIFIED PETITIONER AS THE MURDERER.  MRS. BEHRENDT AND
THE OFFICERS TESTIFIED AT PETITIONER'S TRIAL AS TO THE HOSPITAL
IDENTIFICATION AND SHE ALSO MADE AN IN-COURT IDENTIFICATION OF THE
PETITIONER.  FOLLOWING AFFIRMANCE OF HIS CONVICTION BY THE HIGHEST
STATE COURT, PETITIONER SOUGHT HABEAS CORPUS IN THE DISTRICT COURT
CLAIMING THAT MRS. BEHRENDT'S IDENTIFICATION TESTIMONY VIOLATED HIS
FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS.  THE DISTRICT COURT
AFTER HEARING ARGUMENT ON AN UNRELATED CLAIM DISMISSED THE PETITION. 
THE COURT OF APPEALS, EN BANC, VACATED A PANEL DECISION REVERSING THE
DISMISSAL OF THE PETITION ON CONSTITUTIONAL GROUNDS, AND AFFIRMED THE
DISTRICT COURT.  HELD: 

1.  THE CONSTITUTIONAL RULE ESTABLISHED IN TODAY'S DECISIONS IN
UNITED STATES V. WADE AND GILBERT V. CALIFORNIA, ANTE, PP. 218, 263,
HAS APPLICATION ONLY TO CASES INVOLVING CONFRONTATIONS FOR
IDENTIFICATION PURPOSES CONDUCTED IN THE ABSENCE OF COUNSEL AFTER THIS
DATE.  CF. LINKLETTER V. WALKER, 381 U.S. 618; TEHAN V. SHOTT, 382 U.S.
406; JOHNSON V. NEW JERSEY, 384 U.S. 719.  PP. 296-301. 

2.  THOUGH THE PRACTICE OF SHOWING SUSPECTS SINGLY FOR PURPOSES OF
IDENTIFICATION HAS BEEN WIDELY CONDEMNED, A VIOLATION OF DUE PROCESS OF
LAW IN THE CONDUCT OF A CONFRONTATION DEPENDS ON THE TOTALITY OF THE
SURROUNDING CIRCUMSTANCES.  THERE WAS NO DUE PROCESS DENIAL IN THE
CONFRONTATION HERE SINCE MRS. BEHRENDT WAS THE ONLY PERSON WHO COULD
EXONERATE THE SUSPECT; SHE COULD NOT GO TO THE POLICE STATION FOR THE
USUAL LINEUP; AND THERE WAS NO WAY OF KNOWING HOW LONG SHE WOULD LIVE. 
PP. 301-302. 

STOVAL V. DENNO, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS FEDERAL HABEAS CORPUS PROCEEDING ATTACKS COLLATERALLY A STATE
CRIMINAL CONVICTION FOR THE SAME ALLEGED CONSTITUTIONAL ERRORS IN THE
ADMISSION OF ALLEGEDLY TAINTED IDENTIFICATION EVIDENCE THAT WERE BEFORE
US ON DIRECT REVIEW OF THE CONVICTIONS INVOLVED IN UNITED STATES V.
WADE, ANTE, P. 218, AND GILBERT V. CALIFORNIA, ANTE, P. 263.  THIS CASE
THEREFORE PROVIDES A VEHICLE FOR DECIDING THE EXTENT TO WHICH THE RULES
ANNOUNCED IN WADE AND GILBERT - REQUIRING THE EXCLUSION OF
IDENTIFICATION EVIDENCE WHICH IS TAINTED BY EXHIBITING THE ACCUSED TO
IDENTIFYING WITNESSES BEFORE TRIAL IN THE ABSENCE OF HIS COUNSEL - ARE
TO BE APPLIED RETROACTIVELY.  SEE LINKLETTER V. WALKER, 381 U.S. 618;
TEHAN V. SHOTT, 382 U.S. 406; JOHNSON V. NEW JERSEY, 384 U.S. 719. 
(FN1)  A FURTHER QUESTION IS WHETHER IN ANY EVENT, ON THE FACTS OF THE
PARTICULAR CONFRONTATION INVOLVED IN THIS CASE, PETITIONER WAS DENIED
DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  CF. DAVIS
V. NORTH CAROLINA, 384 U.S. 737. 

DR. PAUL BEHRENDT WAS STABBED TO DEATH IN THE KITCHEN OF HIS HOME IN
GARDEN CITY, LONG ISLAND, ABOUT MIDNIGHT AUGUST 23, 1961.  DR.
BEHRENDT'S WIFE, ALSO A PHYSICIAN, HAD FOLLOWED HER HUSBAND TO THE
KITCHEN AND JUMPED AT THE ASSAILANT.  HE KNOCKED HER TO THE FLOOR AND
STABBED HER 11 TIMES.  THE POLICE FOUND A SHIRT ON THE KITCHEN FLOOR
AND KEYS IN A POCKET WHICH THEY TRACED TO PETITIONER.  THEY ARRESTED
HIM ON THE AFTERNOON OF AUGUST 24.  AN ARRAIGNMENT WAS PROMPTLY HELD
BUT WAS POSTPONED UNTIL PETITIONER COULD RETAIN COUNSEL. 

MRS. BEHRENDT WAS HOSPITALIZED FOR MAJOR SURGERY TO SAVE HER LIFE. 
THE POLICE, WITHOUT AFFORDING PETITIONER TIME TO RETAIN COUNSEL,
ARRANGED WITH HER SURGEON TO PERMIT THEM TO BRING PETITIONER TO HER
HOSPITAL ROOM ABOUT NOON OF AUGUST 25, THE DAY AFTER THE SURGERY. 
PETITIONER WAS HANDCUFFED TO ONE OF FIVE POLICE OFFICERS WHO, WITH TWO
MEMBERS OF THE STAFF OF THE DISTRICT ATTORNEY, BROUGHT HIM TO THE
HOSPITAL ROOM.  PETITIONER WAS THE ONLY NEGRO IN THE ROOM.  MRS.
BEHRENDT IDENTIFIED HIM FROM HER HOSPITAL BED AFTER BEING ASKED BY AN
OFFICER WHETHER HE "WAS THE MAN" AND AFTER PETITIONER REPEATED AT THE
DIRECTION OF AN OFFICER A "FEW WORDS FOR VOICE IDENTIFICATION."  NONE
OF THE WITNESSES COULD RECALL THE WORDS THAT WERE USED.  MRS. BEHRENDT
AND THE OFFICERS TESTIFIED AT THE TRIAL TO HER IDENTIFICATION OF THE
PETITIONER IN THE HOSPITAL ROOM, AND SHE ALSO MADE AN IN-COURT
IDENTIFICATION OF PETITIONER IN THE COURTROOM. 

PETITIONER WAS CONVICTED AND SENTENCED TO DEATH.  THE NEW YORK COURT
OF APPEALS AFFIRMED WITHOUT OPINION.  13 N.Y.2D 1094, 196 N.E.2D 65. 
PETITIONER PRO SE SOUGHT FEDERAL HABEAS CORPUS IN THE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK.  HE CLAIMED THAT AMONG OTHER
CONSTITUTIONAL RIGHTS ALLEGEDLY DENIED HIM AT HIS TRIAL, THE ADMISSION
OF MRS. BEHRENDT'S IDENTIFICATION TESTIMONY VIOLATED HIS RIGHTS UNDER
THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS BECAUSE HE HAD BEEN
COMPELLED TO SUBMIT TO THE HOSPITAL ROOM CONFRONTATION WITHOUT THE HELP
OF COUNSEL AND UNDER CIRCUMSTANCES WHICH UNFAIRLY FOCUSED THE WITNESS'
ATTENTION ON HIM AS THE MAN BELIEVED BY THE POLICE TO BE THE GUILTY
PERSON.  THE DISTRICT COURT DISMISSED THE PETITION AFTER HEARING
ARGUMENT ON AN UNRELATED CLAIM OF AN ALLEGED INVALID SEARCH AND
SEIZURE.  ON APPEAL TO THE COURT OF APPEALS FOR THE SECOND CIRCUIT A
PANEL OF THAT COURT INITIALLY REVERSED THE DISMISSAL AFTER REACHING THE
ISSUE OF THE ADMISSIBILITY OF MRS. BEHRENDT'S IDENTIFICATION EVIDENCE
AND HOLDING IT INADMISSIBLE ON THE GROUND THAT THE HOSPITAL ROOM
IDENTIFICATION VIOLATED PETITIONER'S CONSTITUTIONAL RIGHT TO THE
ASSISTANCE OF COUNSEL.  THE COURT OF APPEALS THEREAFTER HEARD THE CASE
EN BANC, VACATED THE PANEL DECISION, AND AFFIRMED THE DISTRICT COURT. 
355 F.2D 731.  WE GRANTED CERTIORARI, 384 U.S. 1000, AND SET THE CASE
FOR ARGUMENT WITH WADE AND GILBERT.  WE HOLD THAT WADE AND GILBERT
AFFECT ONLY THOSE CASES AND ALL FUTURE CASES WHICH INVOLVE
CONFRONTATIONS FOR IDENTIFICATION PURPOSES CONDUCTED IN THE ABSENCE OF
COUNSEL AFTER THIS DATE.  THE RULINGS OF WADE AND GILBERT ARE THEREFORE
INAPPLICABLE IN THE PRESENT CASE.  WE THINK ALSO THAT ON THE FACTS OF
THIS CASE PETITIONER WAS NOT DEPRIVED OF DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  THE JUDGMENT OF THE COURT OF
APPEALS IS, THEREFORE, AFFIRMED. 

                                    I. 

OUR RECENT DISCUSSIONS OF THE RETROACTIVITY OF OTHER CONSTITUTIONAL
RULES OF CRIMINAL PROCEDURE MAKE UNNECESSARY ANY DETAILED TREATMENT OF
THAT QUESTION HERE.  LINKLETTER V. WALKER, SUPRA; TEHAN V. SHOTT,
SUPRA; JOHNSON V. NEW JERSEY, SUPRA.  "THESE CASES ESTABLISH THE
PRINCIPLE THAT IN CRIMINAL LITIGATION CONCERNING CONSTITUTIONAL CLAIMS,
'THE COURT MAY IN THE INTEREST OF JUSTICE MAKE THE RULE PROSPECTIVE
...  WHERE THE EXIGENCIES OF THE SITUATION REQUIRE SUCH AN APPLICATION'
... ."  JOHNSON, SUPRA, 384 U.S., AT 726-727.  THE CRITERIA GUIDING
RESOLUTION OF THE QUESTION IMPLICATE (A) THE PURPOSE TO BE SERVED BY
THE NEW STANDARDS, (B) THE EXTENT OF THE RELIANCE BY LAW ENFORCEMENT
AUTHORITIES ON THE OLD STANDARDS AND (C) THE EFFECT ON THE
ADMINISTRATION OF JUSTICE OF A RETROACTIVE APPLICATION OF THE NEW
STANDARDS.  "THE RETROACTIVITY OR NONRETROACTIVITY OF A RULE IS NOT
AUTOMATICALLY DETERMINED BY THE PROVISION OF THE CONSTITUTION ON WHICH
THE DICTATE IS BASED.  EACH CONSTITUTIONAL RULE OF CRIMINAL PROCEDURE
HAS ITS OWN DISTINCT FUNCTIONS, ITS OWN BACKGROUND OF PRECEDENT, AND
ITS OWN IMPACT ON THE ADMINISTRATION OF JUSTICE, AND THE WAY IN WHICH
THESE FACTORS COMBINE MUST INEVITABLY VARY WITH THE DICTATE INVOLVED." 
JOHNSON, SUPRA, AT 728. 

WADE AND GILBERT FASHION EXCLUSIONARY RULES TO DETER LAW ENFORCEMENT
AUTHORITIES FROM EXHIBITING AN ACCUSED TO WITNESSES BEFORE TRIAL FOR
IDENTIFICATION PURPOSES WITHOUT NOTICE TO AND IN THE ABSENCE OF
COUNSEL.  A CONVICTION WHICH RESTS ON A MISTAKEN IDENTIFICATION IS A
GROSS MISCARRIAGE OF JUSTICE.  THE WADE AND GILBERT RULES ARE AIMED AT
MINIMIZING THAT POSSIBILITY BE PREVENTING THE UNFAIRNESS AT THE
PRETRIAL CONFRONTATION THAT EXPERIENCE HAS PROVED CAN OCCUR AND
ASSURING MEANINGFUL EXAMINATION OF THE IDENTIFICATION WITNESS'
TESTIMONY AT TRIAL.  DOES IT FOLLOW THAT THE RULES SHOULD BE APPLIED
RETROACTIVELY?  WE DO NOT THINK SO. 

IT IS TRUE THAT THE RIGHT TO THE ASSISTANCE OF COUNSEL HAS BEEN
APPLIED RETROACTIVELY AT STAGES OF THE PROSECUTION WHERE DENIAL OF THE
RIGHT MUST ALMOST INVARIABLY DENY A FAIR TRIAL, FOR EXAMPLE, AT THE
TRIAL ITSELF, GIDEON V. WAINWRIGHT, 372 U.S. 335, OR AT SOME FORMS OF
ARRAIGNMENT, HAMILTON V. ALABAMA, 368 U.S. 52, OR ON APPEAL, DOUGLAS V.
CALIFORNIA, 372 U. S. 353.  "THE BASIC PURPOSE OF A TRIAL IS THE
DETERMINATION OF TRUTH, AND IT IS SELF-EVIDENT THAT TO DENY A LAWYER'S
HELP THROUGH THE TECHNICAL INTRICACIES OF A CRIMINAL TRIAL OR TO DENY A
FULL OPPORTUNITY TO APPEAL A CONVICTION BECAUSE THE ACCUSED IS POOR IS
TO IMPEDE THAT PURPOSE AND TO INFECT A CRIMINAL PROCEEDING WITH THE
CLEAR DANGER OF CONVICTING THE INNOCENT."  TEHAN V. SHOTT, SUPRA, AT
416.  WE HAVE ALSO RETROACTIVELY APPLIED RULES OF CRIMINAL PROCEDURE
FASHIONED TO CORRECT SERIOUS FLAWS IN THE FACT-FINDING PROCESS AT
TRIAL.  SEE FOR EXAMPLE JACKSON V. DENNO, 378 U.S. 368.  ALTHOUGH THE
WADE AND GILBERT RULES ALSO ARE AIMED AT AVOIDING UNFAIRNESS AT THE
TRIAL BY ENHANCING THE RELIABILITY OF THE FACT-FINDING PROCESS IN THE
AREA OF IDENTIFICATION EVIDENCE, "THE QUESTION WHETHER A CONSTITUTIONAL
RULE OF CRIMINAL PROCEDURE DOES OR DOES NOT ENHANCE THE RELIABILITY OF
THE FACT-FINDING PROCESS AT TRIAL IS NECESSARILY A MATTER OF DEGREE." 
JOHNSON V. NEW JERSEY, SUPRA, AT 728-729.  THE EXTENT TO WHICH A
CONDEMMED PRACTICE INFECTS THE INTEGRITY OF THE TRUTH-DETERMINING
PROCESS AT TRIAL IS A "QUESTION OF PROBABILITIES."  384 U.S., AT 729. 
SUCH PROBABILITIES MUST IN TURN BE WEIGHED AGAINST THE PRIOR JUSTIFIED
RELIANCE UPON THE OLD STANDARD AND THE IMPACT OF RETROACTIVITY UPON THE
ADMINISTRATION OF JUSTICE. 

WE HAVE OUTLINED IN WADE THE DANGERS AND UNFAIRNESS INHERENT IN
CONFRONTATIONS FOR IDENTIFICATION.   THE POSSIBILITY OF UNFAIRNESS AT
THAT POINT IS GREAT, BOTH BECAUSE OF THE MANNER IN WHICH CONFRONTATIONS
ARE FREQUENTLY CONDUCTED, AND BECAUSE OF THE LIKELIHOOD THAT THE
ACCUSED WILL OFTEN BE PRECLUDED FROM RECONSTRUCTING WHAT OCCURRED AND
THEREBY FROM OBTAINING A FULL HEARING ON THE IDENTIFICATION ISSUE AT
TRIAL.  THE PRESENCE OF COUNSEL WILL SIGNIFICANTLY PROMOTE FAIRNESS AT
THE CONFRONTATION AND A FULL HEARING AT TRIAL ON THE ISSUE OF
IDENTIFICATION.  WE HAVE, THEREFORE, CONCLUDED THAT THE CONFRONTATION
IS A "CRITICAL STAGE," AND THAT COUNSEL IS REQUIRED AT ALL
CONFRONTATIONS.  IT MUST BE RECOGNIZED, HOWEVER, THAT, UNLIKE CASES IN
WHICH COUNSEL IS ABSENT AT TRIAL OR ON APPEAL, IT MAY CONFIDENTLY BE
ASSUMED THAT CONFRONTATIONS FOR IDENTIFICATION CAN BE AND OFTEN HAVE
BEEN CONDUCTED IN THE ABSENCE OF COUNSEL WITH SCRUPULOUS FAIRNESS AND
WITHOUT PREJUDICE TO THE ACCUSED AT TRIAL.  THEREFORE, WHILE WE FEEL
THAT THE EXCLUSIONARY RULES SET FORTH IN WADE AND GILBERT ARE JUSTIFIED
BY THE NEED TO ASSURE THE INTEGRITY AND RELIABILITY OF OUR SYSTEM OF
JUSTICE, THEY UNDOUBTEDLY WILL AFFECT CASES IN WHICH NO UNFAIRNESS WILL
BE PRESENT.  OF COURSE, WE SHOULD ALSO ASSUME THERE HAVE BEEN
INJUSTICES IN THE PAST WHICH COULD HAVE BEEN AVERTED BY HAVING COUNSEL
PRESENT AT THE CONFRONTATION FOR IDENTIFICATION, JUST AS THERE ARE
INJUSTICES WHEN COUNSEL IS ABSENT AT TRIAL.  BUT THE CERTAINTY AND
FREQUENCY WITH WHICH WE CAN SAY IN THE CONFRONTATION CASES THAT NO
INJUSTICE OCCURRED DIFFERS GREATLY ENOUGH FROM THE CASES INVOLVING
ABSENCE OF COUNSEL AT TRIAL OR ON APPEAL TO JUSTIFY TREATING THE
SITUATIONS AS DIFFERENT IN KIND FOR THE PURPOSE OF RETROACTIVE
APPLICATION, ESPECIALLY IN LIGHT OF THE STRONG COUNTERVAILING INTERESTS
OUTLINED BELOW, AND BECAUSE IT REMAINS OPEN TO ALL PERSONS TO ALLEGE
AND PROVE, AS STOVALL ATTEMPTS TO DO IN THIS CASE, THAT THE
CONFRONTATION RESULTED IN SUCH UNFAIRNESS THAT IT INFRINGED HIS RIGHT
TO DUE PROCESS OF LAW.  SEE PALMER V. PAYTON, 359 F.2D 199 (C.A. 4TH
CIR. 1966). 

THE UNUSUAL FORCE OF THE COUNTERVAILING CONSIDERATIONS STRENGTHENS
OUR CONCLUSION IN FAVOR OF PROSPECTIVE APPLICATION.  THE LAW
ENFORCEMENT OFFICIALS OF THE FEDERAL GOVERNMENT AND OF ALL 50 STATES
HAVE HERETOFORE PROCEEDED ON THE PREMISE THAT THE CONSTITUTION DID NOT
REQUIRE THE PRESENCE OF COUNSEL AT PRETRIAL CONFRONTATIONS FOR
IDENTIFICATION.  TODAY'S RULINGS WERE NOT FORESHADOWED IN OUR CASES; NO
COURT ANNOUNCED SUCH A REQUIREMENT UNTIL WADE WAS DECIDED BY THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT, 358 F.2D 557.  THE OVERWHELMING
MAJORITY OF AMERICAN COURTS HAVE ALWAYS TREATED THE EVIDENCE QUESTION
NOT AS ONE OF ADMISSIBILITY BUT AS ONE OF CREDIBILITY FOR THE JURY. 
WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 38.  LAW ENFORCEMENT
AUTHORITIES FAIRLY RELIED ON THIS VIRTUALLY UNANIMOUS WEIGHT OF
AUTHORITY, NOW NO LONGER VALID, IN CONDUCTING PRETRIAL CONFRONTATIONS
IN THE ABSENCE OF COUNSEL.  IT IS, THEREFORE, VERY CLEAR THAT
RETROACTIVE APPLICATION OF WADE AND GILBERT "WOULD SERIOUSLY DISRUPT
THE ADMINISTRATION OF OUR CRIMINAL LAWS."  JOHNSON V. NEW JERSEY, SUPRA
AT 731.  IN TEHAN V. SHOTT, SUPRA, WE THOUGHT IT PERSUASIVE AGAINST
RETROACTIVE APPLICATION OF THE NO-COMMENT RULE OF GRIFFIN V.
CALIFORNIA, 380 U.S. 609, THAT SUCH APPLICATION WOULD HAVE A SERIOUS
IMPACT ON THE SIX STATES THAT ALLOWED COMMENT ON AN ACCUSED'S FAILURE
TO TAKE THE STAND.  WE SAID, "TO REQUIRE ALL OF THOSE STATES NOW TO
VOID THE CONVICTION OF EVERY PERSON WHO DID NOT TESTIFY AT HIS TRIAL
WOULD HAVE AN IMPACT UPON THE ADMINISTRATION OF THEIR CRIMINAL LAW SO
DEVASTATING AS TO NEED NO ELABORATION."  382 U.S., AT 419.  THAT IMPACT
IS INSIGNIFICANT COMPARED TO THE IMPACT TO BE EXPECTED FROM
RETROACTIVITY OF THE WADE AND GILBERT RULES.  AT THE VERY LEAST, THE
PROCESSING OF CURRENT CRIMINAL CALENDARS WOULD BE DISRUPTED WHILE
HEARINGS WERE CONDUCTED TO DETERMINE TAINT, IF ANY, IN IDENTIFICATION
EVIDENCE, AND WHETHER IN ANY EVENT THE ADMISSION OF THE EVIDENCE WAS
HARMLESS ERROR.  DOUBTLESS, TOO, INQUIRY WOULD BE HANDICAPPED BY THE
UNAVAILABILITY OF WITNESSES AND DIM MEMORIES.  WE CONCLUDE, THEREFORE,
THAT THE WADE AND GILBERT RULES SHOULD NOT BE MADE RETROACTIVE. 

WE ALSO CONCLUDE THAT, FOR THESE PURPOSES, NO DISTINCTION IS
JUSTIFIED BETWEEN CONVICTIONS NOW FINAL, AS IN THE INSTANT CASE, AND
CONVICTIONS AT VARIOUS STAGES OF TRIAL AND DIRECT REVIEW.  WE REGARD
THE FACTORS OF RELIANCE AND BURDEN ON THE ADMINISTRATION OF JUSTICE AS
ENTITLED TO SUCH OVERRIDING SIGNIFICANCE AS TO MAKE THAT DISTINCTION
UNSUPPORTABLE.  (FN2)  WE RECOGNIZE THAT WADE AND GILBERT ARE,
THEREFORE, THE ONLY VICTIMS OF PRETRIAL CONFRONTATIONS IN THE ABSENCE
OF THEIR COUNSEL TO HAVE THE BENEFIT OF THE RULES ESTABLISHED IN THEIR
CASES.  THAT THEY MUST BE GIVEN THAT BENEFIT IS, HOWEVER, AN
UNAVOIDABLE CONSEQUENCE OF THE NECESSITY THAT CONSTITUTIONAL
ADJUDICATIONS NOT STAND AS MERE DICTUM.  SOUND POLICIES OF DECISION
MAKING, ROOTED IN THE COMMAND OF ARTICLE III OF THE CONSTITUTION THAT
WE RESOLVE ISSUES SOLELY IN CONCRETE CASES OR CONTROVERSIES, (FN3) AND
IN THE POSSIBLE EFFECT UPON THE INCENTIVE OF COUNSEL TO ADVANCE
CONTENTIONS REQUIRING A CHANGE IN THE LAW, (FN4) MILITATE AGAINST
DENYING WADE AND GILBERT THE BENEFIT OF TODAY'S DECISIONS.  INEQUITY
ARGUABLY RESULTS FROM ACCORDING THE BENEFIT OF A NEW RULE TO THE
PARTIES IN THE CASE IN WHICH IT IS ANNOUNCED BUT NOT TO OTHER LITIGANTS
SIMILARLY SITUATED IN THE TRIAL OR APPELLATE PROCESS WHO HAVE RAISED
THE SAME ISSUE.  (FN5)  BUT WE REGARD THE FACT THAT THE PARTIES
INVOLVED ARE CHANCE BENEFICIARIES AS AN INSIGNIFICANT COST FOR
ADHERENCE TO SOUND PRINCIPLES OF DECISION-MAKING. 
                  II. 

WE TURN NOW TO THE QUESTION WHETHER PETITIONER, ALTHOUGH NOT ENTITLED
TO THE APPLICATION OF WADE AND GILBERT TO HIS CASE, IS ENTITLED TO
RELIEF ON HIS CLAIM THAT IN ANY EVENT THE CONFRONTATION CONDUCTED IN
THIS CASE WAS SO UNNECESSARILY SUGGESTIVE AND CONDUCIVE TO IRREPARABLE
MISTAKEN IDENTIFICATION THAT HE WAS DENIED DUE PROCESS OF LAW.  THIS IS
A RECOGNIZED GROUND OF ATTACK UPON A CONVICTION INDEPENDENT OF ANY
RIGHT TO COUNSEL CLAIM.  PALMER V. PEYTON, 359 F.2D 199 (C.A. 4TH CIR.
1966).  THE PRACTICE OF SHOWING SUSPECTS SINGLY TO PERSONS FOR THE
PURPOSE OF IDENTIFICATION, AND NOT AS PART OF A LINEUP, HAS BEEN WIDELY
CONDEMNED.  (FN6)  HOWEVER, A CLAIMED VIOLATION OF DUE PROCESS OF LAW
IN THE CONDUCT OF A CONFRONTATION DEPENDS ON THE TOTALITY OF THE
CIRCUMSTANCES SURROUNDING IT, AND THE RECORD IN THE PRESENT CASE
REVEALS THAT THE SHOWING OF STOVALL TO MRS. BEHRENDT IN AN IMMEDIATE
HOSPITAL CONFRONTATION WAS IMPERATIVE.  THE COURT OF APPEALS, EN BANC,
STATED, 355 F.2D, AT 735: 

"HERE WAS THE ONLY PERSON IN THE WORLD WHO COULD POSSIBLY EXONERATE
STOVALL.  HER WORDS, AND ONLY HER WORDS, 'HE IS NOT THE MAN' COULD HAVE
RESULTED IN FREEDOM FOR STOVALL.  THE HOSPITAL WAS NOT FAR DISTANT FROM
THE COURTHOUSE AND JAIL.  NO ONE KNEW HOW LONG MRS. BEHRENDT MIGHT
LIVE.  FACED WITH THE RESPONSIBILITY OF IDENTIFYING THE ATTACKER, WITH
THE NEED FOR IMMEDIATE ACTION AND WITH THE KNOWLEDGE THAT MRS. BEHRENDT
COULD NOT VISIT THE JAIL, THE POLICE FOLLOWED THE ONLY FEASIBLE
PROCEDURE AND TOOK STOVALL TO THE HOSPITAL ROOM.  UNDER THESE
CIRCUMSTANCES, THE USUAL POLICE STATION LINE-UP, WHICH STOVALL NOW
ARGUES HE SHOULD HAVE HAD, WAS OUT OF THE QUESTION." 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.  IT IS SO ORDERED. 

FN1  ALTHOUGH RESPONDENT DID NOT RAISE THE BAR OF RETROACTIVITY, THE
ATTORNEY GENERAL OF THE STATE OF NEW YORK, AS AMICUS CURIAE,
EXTENSIVELY BRIEFED THE ISSUE OF RETROACTIVITY AND PETITIONER, IN HIS
REPLY BRIEF, ADDRESSED HIMSELF TO THIS QUESTION.  COMPARE MAPP V. OHIO,
367 U.S. 643, 646, N. 3. 

FN2  SCHAEFER, THE CONTROL OF "SUNBURSTS":  TECHNIQUES OF PROSPECTIVE
OVERRULING, 22 RECORD OF N.Y.C.B.A. 394, 408-411 (1967). 

FN3  NOTE, PROSPECTIVE OVERRULING AND RETROACTIVE APPLICATION IN THE
FEDERAL COURTS, 71 YALE L.J. 907, 930-933 (1962). 

FN4  SEE MISHKIN, FOREWORD, THE SUPREME COURT 1964 TERM, 79 HARV. L.
REV. 56, 60-61 (1965). 

FN5  SEE MISHKIN, N. 4, SUPRA, AT 61, N. 23; BENDER, THE RETROACTIVE
EFFECT OF AN OVERRULING CONSTITUTIONAL DECISION:  MAPP V. OHIO, 110 U.
PA. L. REV. 650, 675-678 (1962); SCHWARTZ, RETROACTIVITY, RELIABILITY,
AND DUE PROCESS:  A REPLY TO PROFESSOR MISHKIN, 33 U. CHI.  L. REV.
719, 764 (1966). 

FN6  SEE WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 26-40;
PAUL, IDENTIFICATION OF ACCUSED PERSONS, 12 AUSTL.  L.J. 42, 44 (1938);
WILLIAMS & HAMMELMANN, IDENTIFICATION PARADES, PART I, (1963) CRIM. L.
REV. 479, 480-481; FRANKFURTER, THE CASE OF SACCO AND VANZETTI 31-32. 

MR. JUSTICE DOUGLAS IS OF THE VIEW THAT THE DEPRIVATION OF THE RIGHT
TO COUNSEL IN THE SETTING OF THIS CASE SHOULD BE GIVEN RETROACTIVE
EFFECT AS IT WAS IN GIDEON V. WAINWRIGHT, 372 U.S. 335, AND IN DOUGLAS
V. CALIFORNIA, 372 U.S. 353.  AND SEE LINKLETTER V. WALKER, 381 U.S.
618, 640 (DISSENTING OPINION); JOHNSON V. NEW JERSEY, 384 U.S. 719, 736
(DISSENTING OPINION). 

MR. JUSTICE FORTAS WOULD REVERSE AND REMAND FOR A NEW TRIAL ON THE
GROUND THAT THE STATE'S REFERENCE AT TRIAL TO THE IMPROPER HOSPITAL
IDENTIFICATION VIOLATED PETITIONER'S FOURTEENTH AMENDMENT RIGHTS AND
WAS PREJUDICIAL.  HE WOULD NOT REACH THE QUESTION OF RETROACTIVITY OF
WADE AND GILBERT. 

MR. JUSTICE WHITE, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE STEWART
JOIN. 

FOR THE REASONS STATED IN MY SEPARATE OPINION IN UNITED STATES V.
WADE, ANTE, P. 250, I PERCEIVE NO CONSTITUTIONAL ERROR IN THE
IDENTIFICATION PROCEDURE TO WHICH THE PETITIONER WAS SUBJECTED.  I
CONCUR IN THE RESULT AND IN THAT PORTION OF THE COURT'S OPINION WHICH
LIMITS APPLICATION OF THE NEW SIXTH AMENDMENT RULE. 

MR. JUSTICE BLACK, DISSENTING. 

IN UNITED STATES V. WADE, ANTE, P. 218, AND GILBERT V. CALIFORNIA,
ANTE, P. 263, THE COURT HOLDS THAT LINEUP IDENTIFICATION TESTIMONY
SHOULD BE EXCLUDED IF IT WAS OBTAINED BY EXHIBITING AN ACCUSED TO
IDENTIFYING WITNESSES BEFORE TRIAL IN THE ABSENCE OF HIS COUNSEL.  I
CONCURRED IN PART IN THOSE HOLDINGS AS TO OUT-OF-COURT LINEUP
IDENTIFICATION ON THE GROUND THAT THE RIGHT TO COUNSEL IS GUARANTEED IN
FEDERAL COURTS BY THE SIXTH AMENDMENT AND IN STATE COURTS BY THE SIXTH
AND FOURTEENTH AMENDMENTS.  THE FIRST QUESTION IN THIS CASE IS WHETHER
OTHER DEFENDANTS, ALREADY IN PRISON ON SUCH UNCONSTITUTIONAL EVIDENCE,
SHALL BE ACCORDED THE BENEFIT OF THE RULE.  IN THIS CASE THE COURT
HOLDS THAT THE PETITIONER HERE, CONVICTED ON SUCH UNCONSTITUTIONAL
EVIDENCE, MUST REMAIN IN PRISON, AND THAT BESIDES WADE AND GILBERT, WHO
ARE "CHANCE BENEFICIARIES," NO ONE CAN INVOKE THE RULE EXCEPT
DEFENDANTS EXHIBITED IN LINEUPS IN THE FUTURE.  I DISSENT FROM THAT
HOLDING.  IT KEEPS PEOPLE SERVING SENTENCES WHO WERE CONVICTED THROUGH
THE USE OF UNCONSTITUTIONAL EVIDENCE.  THIS IS SOUGHT TO BE JUSTIFIED
ON THE GROUND THAT RETROACTIVE APPLICATION OF THE HOLDING IN GILBERT
AND WADE WOULD SOMEHOW WORK A "BURDEN ON THE ADMINISTRATION OF JUSTICE"
AND WOULD NOT SERVE THE COURT'S PURPOSE "TO DETER LAW ENFORCEMENT
AUTHORITIES."  IT SEEMS TO ME THAT TO DENY THIS PETITIONER AND OTHERS
LIKE HIM THE BENEFIT OF THE NEW RULE DEPRIVES THEM OF A CONSTITUTIONAL
TRIAL AND PERPETRATES A RANK DISCRIMINATION AGAINST THEM.  ONCE THE
COURT DETERMINES WHAT THE CONSTITUTION SAYS, I DO NOT BELIEVE IT HAS
THE POWER, BY WEIGHING "COUNTERVAILING INTERESTS," TO LEGISLATE A
TIMETABLE BY WHICH THE CONSTITUTION'S PROVISIONS SHALL BECOME
EFFECTIVE.  FOR REASONS STATED IN MY DISSENT IN LINKLETTER V. WALKER,
381 U.S. 618, 640, I WOULD HOLD THAT THE PETITIONER HERE AND EVERY
OTHER PERSON IN JAIL UNDER CONVICTIONS BASED ON UNCONSTITUTIONAL
EVIDENCE SHOULD BE GIVEN THE ADVANTAGE OF TODAY'S NEWLY ANNOUNCED
CONSTITUTIONAL RULES. 

THE COURT GOES ON, HOWEVER, TO HOLD THAT EVEN THOUGH ITS NEW
CONSTITUTIONAL RULE ABOUT THE SIXTH AMENDMENT'S RIGHT TO COUNSEL CANNOT
HELP THIS PETITIONER, HE IS NEVERTHELESS ENTITLED TO A CONSIDERATION OF
HIS CLAIM,  "INDEPENDENT OF ANY RIGHT TO COUNSEL CLAIM,"  THAT HIS
IDENTIFICATION BY ONE OF THE VICTIMS OF THE ROBBERY WAS MADE UNDER
CIRCUMSTANCES SO "UNFAIR" THAT HE WAS DENIED "DUE PROCESS OF LAW"
GUARANTEED BY THE FOURTEENTH AMENDMENT.  ALTHOUGH THE COURT FINDS
PETITIONER'S CLAIM WITHOUT MERIT, I DISSENT FROM ITS HOLDING THAT A
GENERAL CLAIM OF "UNFAIRNESS" AT THE LINEUP IS "OPEN TO ALL PERSONS TO
ALLEGE AND PROVE."  THE TERM "DUE PROCESS OF LAW" IS A DIRECT
DESCENDANT OF MAGNA CHARTA'S PROMISE OF A TRIAL ACCORDING TO THE "LAW
OF THE LAND" AS IT HAS BEEN ESTABLISHED BY THE LAWMAKING AGENCY,
CONSTITUTIONAL OR LEGISLATIVE.  NO ONE HAS EVER BEEN ABLE TO POINT TO A
WORD IN OUR CONSTITUTIONAL HISTORY THAT SHOWS THE FRAMERS EVER INTENDED
THAT THE DUE PROCESS CLAUSE OF THE FIFTH OR FOURTEENTH AMENDMENT WAS
DESIGNED TO MEAN ANY MORE THAN THAT DEFENDANTS CHARGED WITH CRIMES
SHOULD BE ENTITLED TO A TRIAL GOVERNED BY THE LAWS, CONSTITUTIONAL AND
STATUTORY, THAT ARE IN EXISTENCE AT THE TIME OF THE COMMISSION OF THE
CRIME AND THE TIME OF THE TRIAL.  THE CONCEPT OF DUE PROCESS UNDER
WHICH THE COURT PURPORTS TO DECIDE THIS QUESTION, HOWEVER, IS THAT THIS
COURT LOOKS AT "THE TOTALITY OF THE CIRCUMSTANCES" OF A PARTICULAR CASE
TO DETERMINE IN ITS OWN JUDGMENT WHETHER THEY COMPORT WITH THE COURT'S
NOTIONS OF DECENCY, FAIRNESS, AND FUNDAMENTAL JUSTICE, AND, IF SO,
DECLARES THEY COMPORT WITH THE CONSTITUTION, AND, IF NOT, DECLARES THEY
ARE FORBIDDEN BY THE CONSTITUTION.  SEE, E.G., ROCHIN V. CALIFORNIA,
342 U.S. 165.  SUCH A CONSTITUTIONAL FORMULA SUBSTITUTES THIS COURT'S
JUDGMENT OF WHAT IS RIGHT FOR WHAT THE CONSTITUTION DECLARES SHALL BE
THE SUPREME LAW OF THE LAND.  THIS DUE PROCESS NOTION PROCEEDS AS
THOUGH OUR WRITTEN CONSTITUTION, DESIGNED TO GRANT LIMITED POWERS TO
GOVERNMENT, HAD NEUTRALIZED ITS LIMITATIONS BY USING THE DUE PROCESS
CLAUSE TO AUTHORIZE THIS COURT TO OVERRIDE ITS WRITTEN LIMITING
LANGUAGE BY SUBSTITUTING THE COURT'S VIEW OF WHAT POWERS THE FRAMERS
SHOULD HAVE GRANTED GOVERNMENT.  ONCE AGAIN I DISSENT FROM ANY SUCH
VIEW OF THE CONSTITUTION.  WHERE ACCEPTED, ITS RESULT IS TO MAKE THIS
COURT NOT A CONSTITUTION-INTERPRETER, BUT A DAY-TO-DAY CONSTITUTION
MAKER. 

BUT EVEN IF THE DUE PROCESS CLAUSE COULD POSSIBLY BE CONSTRUED AS
GIVING SUCH LATITUDINARIAN POWERS TO THE COURT, I WOULD STILL THINK THE
COURT GOES TOO FAR IN HOLDING THAT THE COURTS CAN LOOK AT THE
PARTICULAR CIRCUMSTANCES OF EACH IDENTIFICATION LINEUP TO DETERMINE AT
LARGE WHETHER THEY ARE TOO "SUGGESTIVE AND CONDUCIVE TO IRREPARABLE
MISTAKEN IDENTIFICATION" TO BE CONSTITUTIONAL.  THAT RESULT IS TO
FREEZE AS CONSTITUTIONAL OR AS UNCONSTITUTIONAL THE CIRCUMSTANCES OF
EACH CASE, GIVING THE STATES AND THE FEDERAL GOVERNMENT NO PERMANENT
CONSTITUTIONAL STANDARDS.  IT ALSO TRANSFERS TO THIS COURT POWER TO
DETERMINE WHAT THE CONSTITUTION SHOULD SAY, INSTEAD OF PERFORMANCE OF
ITS UNDOUBTED CONSTITUTIONAL POWER TO DETERMINE WHAT THE CONSTITUTION
DOES SAY.  AND THE RESULT IN THIS PARTICULAR CASE IS TO PUT INTO A
CONSTITUTIONAL MOULD A RULE OF EVIDENCE WHICH I THINK IS PLAINLY WITHIN
THE CONSTITUTIONAL POWERS OF THE STATES IN CREATING AND ENFORCING THEIR
OWN CRIMINAL LAWS.  I MUST SAY WITH ALL DEFERENCE THAT FOR THIS COURT
TO HOLD THAT THE DUE PROCESS CLAUSE GIVES IT POWER TO BAR STATE
INTRODUCTION OF LINEUP TESTIMONY ON ITS NOTION OF FAIRNESS, NOT BECAUSE
IT VIOLATES SOME SPECIFIC CONSTITUTIONAL PROHIBITION, IS AN ARBITRARY,
WHOLLY CAPRICIOUS ACTION. 

I WOULD NOT AFFIRM THIS CASE BUT WOULD REVERSE AND REMAND FOR
CONSIDERATION OF WHETHER THE OUT-OF-COURT LINEUP IDENTIFICATION OF
PETITIONER WAS, UNDER CHAPMAN V. CALIFORNIA, 386 U.S. 18, HARMLESS
ERROR.  IF IT WAS NOT PETITIONER IS ENTITLED TO A NEW TRIAL BECAUSE OF
A DENIAL OF THE RIGHT TO COUNSEL GUARANTEED BY THE SIXTH AMENDMENT
WHICH THE FOURTEENTH AMENDMENT MAKES OBLIGATORY ON THE STATES. 
..END :










WALKER V. CITY OF BIRMINGHAM 388 U.S. 307 


NO. 249.  ARGUED MARCH 13-14, 1967.  - DECIDED JUNE 12, 1967.  - 279
ALA. 53, 181 SO. 2D 493, AFFIRMED. 


ON APRIL 10, 1963, A TEMPORARY INJUNCTION WAS ISSUED BY AN ALABAMA
CIRCUIT COURT JUDGE, PURSUANT TO A BILL OF COMPLAINT FILED BY
BIRMINGHAM OFFICIALS, ENJOINING PETITIONERS FROM PARTICIPATING IN OR
ENCOURAGING MASS STREET PARADES WITHOUT A PERMIT AS REQUIRED BY CITY
ORDINANCE.  THE BILL AND ACCOMPANYING AFFIDAVITS STATED THAT
DEMONSTRATIONS, PARADES, AND PICKETING HAD BEEN ENGAGED IN BY
PETITIONERS FOR THE PRECEDING SEVEN DAYS AND WERE EXPECTED TO
CONTINUE.  SOME OF THE PETITIONERS, WHO HAD BEEN SERVED WITH COPIES OF
THE WRIT THE NEXT MORNING, HELD A PRESS CONFERENCE AND ANNOUNCED THEIR
INTENTION TO DISOBEY THE INJUNCTION.  NO PERMIT TO PARADE WAS THEN OR
THEREAFTER REQUESTED, BUT PARADES WERE HELD ON APRIL 12, GOOD FRIDAY,
AND APRIL 14, EASTER SUNDAY.  AT A CONTEMPT HEARING PETITIONERS SOUGHT
TO ATTACK THE CONSTITUTIONALITY OF THE INJUNCTION ON THE GROUND THAT IT
WAS VAGUE, OVERBROAD, AND RESTRAINED FREE SPEECH.  THEY ALSO SOUGHT TO
ATTACK THE PARADE ORDINANCE ON A SIMILAR GROUND AND ON THE BASIS THAT
IT HAD BEEN ADMINISTERED IN AN ARBITRARY AND DISCRIMINATORY MANNER. 
THE CIRCUIT JUDGE REFUSED TO CONSIDER THESE CONTENTIONS, STATING THAT
THERE HAD BEEN NO MOTION TO DISSOLVE THE INJUNCTION OR ANY EFFORT TO
COMPLY WITH IT BY APPLYING FOR A PARADE PERMIT.  THE COURT HELD THAT
THE ONLY ISSUES WERE WHETHER IT HAD JURISDICTION TO ISSUE THE
INJUNCTION AND WHETHER PETITIONERS HAD KNOWINGLY VIOLATED IT.
PETITIONERS WERE FOUND GUILTY AND THE ALABAMA SUPREME COURT AFFIRMED. 
HELD:  PETITIONERS COULD NOT BYPASS ORDERLY JUDICIAL REVIEW OF THE
TEMPORARY INJUNCTION BEFORE DISOBEYING IT.  HOWAT V. KANSAS, 258 U.S.
181.  PP. 314-320. 

(A)  THE STATE COURT THAT ISSUED THE INJUNCTION HAD, AS A COURT OF
EQUITY, JURISDICTION OVER PETITIONERS AND OVER THE SUBJECT MATTER OF
THE CONTROVERSY.  P. 315. 

(B)  THE INJUNCTION WAS CONSISTENT WITH THE STRONG INTEREST OF THE
CITY GOVERNMENT IN REGULATING THE USE OF ITS STREETS AND OTHER PUBLIC
PLACES.  PP. 315-316. 

(C)  WHILE THE GENERALITY OF LANGUAGE IN THE PARADE ORDINANCE WOULD
RAISE SUBSTANTIAL CONSTITUTIONAL ISSUES, PETITIONERS DID NOT APPLY TO
THE COURTS FOR AN AUTHORITATIVE CONSTRUCTION WHICH MIGHT HAVE GIVEN THE
LICENSING AUTHORITY GRANTED IN THE ORDINANCE A NARROW AND PRECISE
SCOPE.  AS IN COX V. NEW HAMPSHIRE, 312 U.S. 569, AND POULOS V. NEW
HAMPSHIRE, 345 U.S. 395, IT CANNOT BE ASSUMED THAT THE ORDINANCE IS
VOID ON ITS FACE.  PP. 316-317. 

(D)  THE BREADTH AND VAGUENESS OF THE INJUNCTION ITSELF WOULD BE
SUBJECT TO CONSTITUTIONAL QUESTION, BUT THE WAY TO RAISE THAT QUESTION
WAS TO APPLY TO THE STATE COURTS TO HAVE THE INJUNCTION MODIFIED OR
DISSOLVED.  P. 317. 

(E)  EVEN IF THE PARADE ORDINANCE ON WHICH THE INJUNCTION WAS BASED
HAD BEEN PREVIOUSLY ADMINISTERED IN AN ARBITRARY AND DISCRIMINATORY
MANNER, IT DOES NOT FOLLOW THAT THE ORDINANCE IS VOID ON ITS FACE. 
PETITIONERS DID NOT APPLY FOR A PARADE PERMIT AFTER ISSUANCE OF THE
INJUNCTION, THE CLAIMED ARBITRARY REFUSAL OF WHICH WOULD HAVE BEEN
CONSIDERED BY THE STATE COURT UPON A MOTION TO DISSOLVE THE
INJUNCTION.  PP. 317-318. 

(F)  THE RULE OF LAW WHICH THE ALABAMA COURTS RELIED ON WAS FIRMLY
ESTABLISHED BY PRECEDENTS WHICH PUT PETITIONERS ON NOTICE THAT THEY
COULD NOT BYPASS ORDERLY JUDICIAL REVIEW OF THE INJUNCTION BEFORE
DISOBEYING IT.  P. 319. 

WALKER ET AL. V. CITY OF BIRMINGHAM. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON WEDNESDAY, APRIL 10, 1963, OFFICIALS OF BIRMINGHAM, ALABAMA, FILED
A BILL OF COMPLAINT IN A STATE CIRCUIT COURT ASKING FOR INJUNCTIVE
RELIEF AGAINST 139 INDIVIDUALS AND TWO ORGANIZATIONS.  THE BILL AND
ACCOMPANYING AFFIDAVITS STATED THAT DURING THE PRECEDING SEVEN DAYS: 

"RESPONDENTS HAD SPONSORED AND/OR PARTICIPATED IN AND/OR CONSPIRED TO
COMMIT AND/OR TO ENCOURAGE AND/OR TO PARTICIPATE IN CERTAIN MOVEMENTS,
PLANS OR PROJECTS COMMONLY CALLED 'SIT-IN' DEMONSTRATIONS, 'KNEEL-IN'
DEMONSTRATIONS, MASS STREET PARADES, TRESPASSES ON PRIVATE PROPERTY
AFTER BEING WARNED TO LEAVE THE PREMISES BY THE OWNERS OF SAID
PROPERTY, CONGREGATING IN MOBS UPON THE PUBLIC STREETS AND OTHER PUBLIC
PLACES, UNLAWFULLY PICKETING PRIVATE PLACES OF BUSINESS IN THE CITY OF
BIRMINGHAM, ALABAMA; VIOLATION OF NUMEROUS ORDINANCES AND STATUTES OF
THE CITY OF BIRMINGHAM AND STATE OF ALABAMA  ...  ." 

IT WAS ALLEGED THAT THIS CONDUCT WAS "CALCULATED TO PROVOKE BREACHES
OF THE PEACE," "THREATENED THE SAFETY, PEACE AND TRANQUILITY OF THE
CITY," AND PLACED "AN UNDUE BURDEN AND STRAIN UPON THE MANPOWER OF THE
POLICE DEPARTMENT." 

THE BILL STATED THAT THESE INFRACTIONS OF THE LAW WERE EXPECTED TO
CONTINUE AND WOULD "LEAD TO FURTHER IMMINENT DANGER TO THE LIVES,
SAFETY, PEACE, TRANQUILITY AND GENERAL WELFARE OF THE PEOPLE OF THE
CITY OF BIRMINGHAM," AND THAT THE "REMEDY BY LAW WAS INADEQUATE."  THE
CIRCUIT JUDGE GRANTED A TEMPORARY INJUNCTION AS PRAYED IN THE BILL,
ENJOINING THE PETITIONERS FROM, AMONG OTHER THINGS, PARTICIPATING IN OR
ENCOURAGING MASS STREET PARADES OR MASS PROCESSIONS WITHOUT A PERMIT AS
REQUIRED BY A BIRMINGHAM ORDINANCE.  (FN1) 

FIVE OF THE EIGHT PETITIONERS WERE SERVED WITH COPIES OF THE WRIT
EARLY THE NEXT MORNING.  SEVERAL HOURS LATER FOUR OF THEM HELD A PRESS
CONFERENCE.  THERE A STATEMENT WAS DISTRIBUTED, DECLARING THEIR
INTENTION TO DISOBEY THE INJUNCTION BECAUSE IT WAS "RAW TYRANNY UNDER
THE GUISE OF MAINTAINING LAW AND ORDER."  (FN2)  AT THIS PRESS
CONFERENCE ONE OF THE PETITIONERS STATED:  "THAT THEY HAD RESPECT FOR
THE FEDERAL COURTS, OR FEDERAL INJUNCTIONS, BUT IN THE PAST THE STATE
COURTS HAD FAVORED LOCAL LAW ENFORCEMENT, AND IF THE POLICE COULDN'T
HANDLE IT, THE MOB WOULD." 

THAT NIGHT A MEETING TOOK PLACE AT WHICH ONE OF THE PETITIONERS
ANNOUNCED THAT "INJUNCTION OR NO INJUNCTION WE ARE GOING TO MARCH
TOMORROW."  THE NEXT AFTERNOON, GOOD FRIDAY, A LARGE CROWD GATHERED IN
THE VICINITY OF SIXTEENTH STREET AND SIXTH AVENUE NORTH IN BIRMINGHAM. 
A GROUP OF ABOUT 50 OR 60 PROCEEDED TO PARADE ALONG THE SIDEWALK WHILE
A CROWD OF 1,000 TO 1,500 ONLOOKERS STOOD BY, "CLAPPING, AND HOLLERING,
AND WHOOPING."  SOME OF THE CROWD FOLLOWED THE MARCHERS AND SPILLED OUT
INTO THE STREET.  AT LEAST THREE OF THE PETITIONERS PARTICIPATED IN
THIS MARCH. 

MEETINGS SPONSORED BY SOME OF THE PETITIONERS WERE HELD THAT NIGHT
AND THE FOLLOWING NIGHT, WHERE CALLS FOR VOLUNTEERS TO "WALK" AND GO TO
JAIL WERE MADE.  ON EASTER SUNDAY, APRIL 14, A CROWD OF BETWEEN 1,500
AND 2,000 PEOPLE CONGREGATED IN THE MIDAFTERNOON IN THE VICINITY OF
SEVENTH AVENUE AND ELEVENTH STREET NORTH IN BIRMINGHAM.  ONE OF THE
PETITIONERS WAS SEEN ORGANIZING MEMBERS OF THE CROWD IN FORMATION.  A
GROUP OF ABOUT 50, HEADED BY THREE OTHER PETITIONERS, STARTED DOWN THE
SIDEWALK TWO ABREAST.  AT LEAST ONE OTHER PETITIONER WAS AMONG THE
MARCHERS.  SOME 300 OR 400 PEOPLE FROM AMONG THE ONLOOKERS FOLLOWED IN
A CROWD THAT OCCUPIED THE ENTIRE WIDTH OF THE STREET AND OVERFLOWED
ONTO THE SIDEWALKS.  VIOLENCE OCCURRED.  MEMBERS OF THE CROWD THREW
ROCKS THAT INJURED A NEWSPAPERMAN AND DAMAGED A POLICE MOTORCYCLE. 

THE NEXT DAY THE CITY OFFICIALS WHO HAD REQUESTED THE INJUNCTION
APPLIED TO THE STATE CIRCUIT COURT FOR AN ORDER TO SHOW CAUSE WHY THE
PETITIONERS SHOULD NOT BE HELD IN CONTEMPT FOR VIOLATING IT.  AT THE
ENSUING HEARING THE PETITIONERS SOUGHT TO ATTACK THE CONSTITUTIONALITY
OF THE INJUNCTION ON THE GROUND THAT IT WAS VAGUE AND OVERBROAD, AND
RESTRAINED FREE SPEECH.  THEY ALSO SOUGHT TO ATTACK THE BIRMINGHAM
PARADE ORDINANCE UPON SIMILAR GROUNDS, AND UPON THE FURTHER GROUND THAT
THE ORDINANCE HAD PREVIOUSLY BEEN ADMINISTERED IN AN ARBITRARY AND
DISCRIMINATORY MANNER. 

THE CIRCUIT JUDGE REFUSED TO CONSIDER ANY OF THESE CONTENTIONS,
POINTING OUT THAT THERE HAD BEEN NEITHER A MOTION TO DISSOLVE THE
INJUNCTION, NOR AN EFFORT TO COMPLY WITH IT BY APPLYING FOR A PERMIT
FROM THE CITY COMMISSION BEFORE ENGAGING IN THE GOOD FRIDAY AND EASTER
SUNDAY PARADES.  CONSEQUENTLY, THE COURT HELD THAT THE ONLY ISSUES
BEFORE IT WERE WHETHER IT HAD JURISDICTION TO ISSUE THE TEMPORARY
INJUNCTION, AND WHETHER THEREAFTER THE PETITIONERS HAD KNOWINGLY
VIOLATED IT. UPON THESE ISSUES THE COURT FOUND AGAINST THE PETITIONERS,
AND IMPOSED UPON EACH OF THEM A SENTENCE OF FIVE DAYS IN JAIL AND A $50
FINE, IN ACCORD WITH AN ALABAMA STATUTE.  (FN3) 

THE SUPREME COURT OF ALABAMA AFFIRMED.  (FN4)  THAT COURT, TOO,
DECLINED TO CONSIDER THE PETITIONERS' CONSTITUTIONAL ATTACKS UPON THE
INJUNCTION AND THE UNDERLYING BIRMINGHAM PARADE ORDINANCE: 

"IT IS TO BE REMEMBERED THAT PETITIONERS ARE CHARGED WITH VIOLATING A
TEMPORARY INJUNCTION.  WE ARE NOT REVIEWING A DENIAL OF A MOTION TO
DISSOLVE OR DISCHARGE A TEMPORARY INJUNCTION.  PETITIONERS DID NOT FILE
ANY MOTION TO VACATE THE TEMPORARY INJUNCTION UNTIL AFTER THE FRIDAY
AND SUNDAY PARADES.  INSTEAD, PETITIONERS DELIBERATELY DEFIED THE ORDER
OF THE COURT AND DID ENGAGE IN AND INCITE OTHERS TO ENGAGE IN MASS
STREET PARADES WITHOUT A PERMIT. 

     *         *         *         *         * 

"WE HOLD THAT THE CIRCUIT COURT HAD THE DUTY AND AUTHORITY, IN THE
FIRST INSTANCE, TO DETERMINE THE VALIDITY OF THE ORDINANCE, AND, UNTIL
THE DECISION OF THE CIRCUIT COURT IS REVERSED FOR ERROR BY ORDERLY
REVIEW, EITHER BY THE CIRCUIT COURT OR A HIGHER COURT, THE ORDERS OF
THE CIRCUIT COURT BASED ON ITS DECISION ARE TO BE RESPECTED AND
DISOBEDIENCE OF THEM IS CONTEMPT OF ITS LAWFUL AUTHORITY, TO BE
PUNISHED.  HOWAT V. STATE OF KANSAS, 258 U.S. 181."  279 ALA. 53, 60,
62-63, 181 SO. 2D 493, 500, 502. 

HOWAT V. KANSAS, 258 U.S. 181, WAS DECIDED BY THIS COURT ALMOST 50
YEARS AGO.  THAT WAS A CASE IN WHICH PEOPLE HAD BEEN PUNISHED BY A
KANSAS TRIAL COURT FOR REFUSING TO OBEY AN ANTISTRIKE INJUNCTION ISSUED
UNDER THE STATE INDUSTRIAL RELATIONS ACT.  THEY HAD CLAIMED A RIGHT TO
DISOBEY THE COURT'S ORDER UPON THE GROUND THAT THE STATE STATUTE AND
THE INJUNCTION BASED UPON IT WERE INVALID UNDER THE FEDERAL
CONSTITUTION.  THE SUPREME COURT OF KANSAS HAD AFFIRMED THE JUDGMENT,
HOLDING THAT THE TRIAL COURT "HAD GENERAL POWER TO ISSUE INJUNCTIONS IN
EQUITY AND THAT, EVEN IF ITS EXERCISE OF THE POWER WAS ERRONEOUS, THE
INJUNCTION WAS NOT VOID, AND THE DEFENDANTS WERE PRECLUDED FROM
ATTACKING IT IN THIS COLLATERAL PROCEEDING  ...  THAT, IF THE
INJUNCTION WAS ERRONEOUS, JURISDICTION WAS NOT THEREBY FORFEITED, THAT
THE ERROR WAS SUBJECT TO CORRECTION ONLY BY THE ORDINARY METHOD OF
APPEAL, AND DISOBEDIENCE TO THE ORDER CONSTITUTED CONTEMPT."  258 U.S.,
AT 189. 

THIS COURT, IN DISMISSING THE WRIT OF ERROR, NOT ONLY UNANIMOUSLY
ACCEPTED BUT FULLY APPROVED THE VALIDITY OF THE RULE OF STATE LAW UPON
WHICH THE JUDGMENT OF THE KANSAS COURT WAS GROUNDED: 

"AN INJUNCTION DULY ISSUING OUT OF A COURT OF GENERAL JURISDICTION
WITH EQUITY POWERS UPON PLEADINGS PROPERLY INVOKING ITS ACTION, AND
SERVED UPON PERSONS MADE PARTIES THEREIN AND WITHIN THE JURISDICTION,
MUST BE OBEYED BY THEM HOWEVER ERRONEOUS THE ACTION OF THE COURT MAY
BE, EVEN IF THE ERROR BE IN THE ASSUMPTION OF THE VALIDITY OF A SEEMING
BUT VOID LAW GOING TO THE MERITS OF THE CASE.  IT IS FOR THE COURT OF
FIRST INSTANCE TO DETERMINE THE QUESTION OF THE VALIDITY OF THE LAW,
AND UNTIL ITS DECISION IS REVERSED FOR ERROR BY ORDERLY REVIEW, EITHER
BY ITSELF OR BY A HIGHER COURT, ITS ORDERS BASED ON ITS DECISION ARE TO
BE RESPECTED, AND DISOBEDIENCE OF THEM IS CONTEMPT OF ITS LAWFUL
AUTHORITY, TO BE PUNISHED."  258 U.S., AT 189-190. 

THE RULE OF STATE LAW ACCEPTED AND APPROVED IN HOWAT V. KANSAS IS
CONSISTENT WITH THE RULE OF LAW FOLLOWED BY THE FEDERAL COURTS.  (FN5) 

IN THE PRESENT CASE, HOWEVER, WE ARE ASKED TO HOLD THAT THIS RULE OF
LAW, UPON WHICH THE ALABAMA COURTS RELIED, WAS CONSTITUTIONALLY
IMPERMISSIBLE.  WE ARE ASKED TO SAY THAT THE CONSTITUTION COMPELLED
ALABAMA TO ALLOW THE PETITIONERS TO VIOLATE THIS INJUNCTION, TO
ORGANIZE AND ENGAGE IN THESE MASS STREET PARADES AND DEMONSTRATIONS,
WITHOUT ANY PREVIOUS EFFORT ON THEIR PART TO HAVE THE INJUNCTION
DISSOLVED OR MODIFIED, OR ANY ATTEMPT TO SECURE A PARADE PERMIT IT
ACCORDANCE WITH ITS TERMS.  WHATEVER THE LIMITS OF HOWAT V. KANSAS,
(FN6) WE CANNOT ACCEPT THE PETITIONERS' CONTENTIONS IN THE
CIRCUMSTANCES OF THIS CASE. 

WITHOUT QUESTION THE STATE COURT THAT ISSUED THE INJUNCTION HAD, AS A
COURT OF EQUITY, JURISDICTION OVER THE PETITIONERS AND OVER THE SUBJECT
MATTER OF THE CONTROVERSY.  (FN7)  AND THIS IS NOT A CASE WHERE THE
INJUNCTION WAS TRANSPARENTLY INVALID OR HAD ONLY A FRIVOLOUS PRETENSE
TO VALIDITY.  WE HAVE CONSISTENTLY RECOGNIZED THE STRONG INTEREST OF
STATE AND LOCAL GOVERNMENTS IN REGULATING THE USE OF THEIR STREETS AND
OTHER PUBLIC PLACES.  COX V. NEW HAMPSHIRE, 312 U.S. 569; KOVACS V.
COOPER, 336 U.S. 77; POULOS V. NEW HAMPSHIRE, 345 U.S. 395; ADDERLEY V.
FLORIDA, 385 U.S. 39.  WHEN PROTEST TAKES THE FORM OF MASS
DEMONSTRATIONS, PARADES, OR PICKETING ON PUBLIC STREETS AND SIDEWALKS,
THE FREE PASSAGE OF TRAFFIC AND THE PREVENTION OF PUBLIC DISORDER AND
VIOLENCE BECOME IMPORTANT OBJECTS OF LEGITIMATE STATE CONCERN.  AS THE
COURT STATED, IN COX V. LOUISIANA, "WE EMPHATICALLY REJECT THE NOTION
...  THAT THE FIRST AND FOURTEENTH AMENDMENTS AFFORD THE SAME KIND OF
FREEDOM TO THOSE WHO WOULD COMMUNICATE IDEAS BY CONDUCT SUCH AS
PATROLLING, MARCHING, AND PICKETING ON STREETS AND HIGHWAYS, AS THESE
AMENDMENTS AFFORD TO THOSE WHO COMMUNICATE IDEAS BY PURE SPEECH."  379
U.S. 536, 555.  AND AS A UNANIMOUS COURT STATED IN COX V. NEW
HAMPSHIRE: 

"CIVIL LIBERTIES, AS GUARANTEED BY THE CONSTITUTION, IMPLY THE
EXISTENCE OF AN ORGANIZED SOCIETY MAINTAINING PUBLIC ORDER WITHOUT
WHICH LIBERTY ITSELF WOULD BE LOST IN THE EXCESSES OF UNRESTRAINED
ABUSES.  THE AUTHORITY OF A MUNICIPALITY TO IMPOSE REGULATIONS IN ORDER
TO ASSURE THE SAFETY AND CONVENIENCE OF THE PEOPLE IN THE USE OF PUBLIC
HIGHWAYS HAS NEVER BEEN REGARDED AS INCONSISTENT WITH CIVIL LIBERTIES
BUT RATHER AS ONE OF THE MEANS OF SAFEGUARDING THE GOOD ORDER UPON
WHICH THEY ULTIMATELY DEPEND."  312 U.S., AT 574. 

THE GENERALITY OF THE LANGUAGE CONTAINED IN THE BIRMINGHAM PARADE
ORDINANCE UPON WHICH THE INJUNCTION WAS BASED WOULD UNQUESTIONABLY
RAISE SUBSTANTIAL CONSTITUTIONAL ISSUES CONCERNING SOME OF ITS
PROVISIONS.  (FN8)  SCHNEIDER V. STATE, 308 U.S. 147; SAIA V. NEW YORK,
334 U.S. 558; KUNZ V. NEW YORK, 340 U.S. 290.  THE PETITIONERS,
HOWEVER, DID NOT EVEN ATTEMPT TO APPLY TO THE ALABAMA COURTS FOR AN
AUTHORITATIVE CONSTRUCTION OF THE ORDINANCE.  HAD THEY DONE SO, THOSE
COURTS MIGHT HAVE GIVEN THE LICENSING AUTHORITY GRANTED IN THE
ORDINANCE A NARROW AND PRECISE SCOPE, AS DID THE NEW HAMPSHIRE COURTS
IN COX V. NEW HAMPSHIRE AND POULOS V. NEW HAMPSHIRE, BOTH SUPRA.  CF.
SHUTTLESWORTH V. BIRMINGHAM, 382 U.S. 87, 91; CITY OF DARLINGTON V.
STANLEY, 239 S.C. 139, 122 S.E.2D 207.  HERE, JUST AS IN COX AND
POULOS, IT COULD NOT BE ASSUMED THAT THIS ORDINANCE WAS VOID ON ITS
FACE. 

THE BREADTH AND VAGUENESS OF THE INJUNCTION ITSELF WOULD ALSO
UNQUESTIONABLY BE SUBJECT TO SUBSTANTIAL CONSTITUTIONAL QUESTION.  BUT
THE WAY TO RAISE THAT QUESTION WAS TO APPLY TO THE ALABAMA COURTS TO
HAVE THE INJUNCTION MODIFIED OR DISSOLVED.  THE INJUNCTION IN ALL
EVENTS CLEARLY PROHIBITED MASS PARADING WITHOUT A PERMIT, AND THE
EVIDENCE SHOWS THAT THE PETITIONERS FULLY UNDERSTOOD THAT PROHIBITION
WHEN THEY VIOLATED IT. 

THE PETITIONERS ALSO CLAIM THAT THEY WERE FREE TO DISOBEY THE
INJUNCTION BECAUSE THE PARADE ORDINANCE ON WHICH IT WAS BASED HAD BEEN
ADMINISTERED IN THE PAST IN AN ARBITRARY AND DISCRIMINATORY FASHION. 
IN SUPPORT OF THIS CLAIM THEY SOUGHT TO INTRODUCE EVIDENCE THAT, A FEW
DAYS BEFORE THE INJUNCTION ISSUED, REQUESTS FOR PERMITS TO PICKET HAD
BEEN MADE TO A MEMBER OF THE CITY COMMISSION.  ONE REQUEST HAD BEEN
RUDELY REBUFFED, (FN9) AND THIS SAME OFFICIAL HAD LATER MADE CLEAR THAT
HE WAS WITHOUT POWER TO GRANT THE PERMIT ALONE, SINCE THE ISSUANCE OF
SUCH PERMITS WAS THE RESPONSIBILITY OF THE ENTIRE CITY COMMISSION. 
(FN10)  ASSUMING THE TRUTH OF THIS PROFFERED EVIDENCE, IT DOES NOT
FOLLOW THAT THE PARADE ORDINANCE WAS VOID ON ITS FACE.  THE
PETITIONERS, MOREOVER, DID NOT APPLY FOR A PERMIT EITHER TO THE
COMMISSION ITSELF OR TO ANY COMMISSIONER AFTER THE INJUNCTION ISSUED. 
HAD THEY DONE SO, AND HAD THE PERMIT BEEN REFUSED, IT IS CLEAR THAT
THEIR CLAIM OF ARBITRARY OR DISCRIMINATORY ADMINISTRATION OF THE
ORDINANCE WOULD HAVE BEEN CONSIDERED BY THE STATE CIRCUIT COURT UPON A
MOTION TO DISSOLVE THE INJUNCTION.  (FN11)    THIS CASE WOULD ARISE IN
QUITE A DIFFERENT CONSTITUTIONAL POSTURE IF THE PETITIONERS, BEFORE
DISOBEYING THE INJUNCTION, HAD CHALLENGED IT IN THE ALABAMA COURTS, AND
HAD BEEN MET WITH DELAY OR FRUSTRATION OF THEIR CONSTITUTIONAL CLAIMS. 
BUT THERE IS NO SHOWING THAT SUCH WOULD HAVE BEEN THE FATE OF A TIMELY
MOTION TO MODIFY OR DISSOLVE THE INJUNCTION.  THERE WAS AN INTERIM OF
TWO DAYS BETWEEN THE ISSUANCE OF THE INJUNCTION AND THE GOOD FRIDAY
MARCH.  THE PETITIONERS GIVE ABSOLUTELY NO EXPLANATION OF WHY THEY DID
NOT MAKE SOME APPLICATION TO THE STATE COURT DURING THAT PERIOD.  THE
INJUNCTION HAD ISSUED EX PARTE; IF THE COURT HAD BEEN PRESENTED WITH
THE PETITIONERS' CONTENTIONS, IT MIGHT WELL HAVE DISSOLVED OR AT LEAST
MODIFIED ITS ORDER IN SOME RESPECTS.  IF IT HAD NOT DONE SO, ALABAMA
PROCEDURE WOULD HAVE PROVIDED FOR AN EXPEDITED PROCESS OF APPELLATE
REVIEW.  (FN12)  IT CANNOT BE PRESUMED THAT THE ALABAMA COURTS WOULD
HAVE IGNORED THE PETITIONERS' CONSTITUTIONAL CLAIMS.  INDEED, THESE
CONTENTIONS WERE ACCEPTED IN ANOTHER CASE BY AN ALABAMA APPELLATE COURT
THAT STRUCK DOWN ON DIRECT REVIEW THE CONVICTION UNDER THIS VERY
ORDINANCE OF ONE OF THESE SAME PETITIONERS.  (FN13) 

THE RULE OF LAW UPON WHICH THE ALABAMA COURTS RELIED IN THIS CASE WAS
ONE FIRMLY ESTABLISHED BY PREVIOUS PRECEDENTS.  WE DO NOT DEAL HERE,
THEREFORE, WITH A SITUATION WHERE A STATE COURT HAS FOLLOWED A REGULAR
PAST PRACTICE OF ENTERTAINING CLAIMS IN A GIVEN PROCEDURAL MODE, AND
WITHOUT NOTICE HAS ABANDONED THAT PRACTICE TO THE DETRIMENT OF A
LITIGANT WHO FINDS HIS CLAIM FORECLOSED BY A NOVEL PROCEDURAL BAR. 
BARR V. CITY OF COLUMBIA, 378 U.S. 146.  THIS IS NOT A CASE WHERE A
PROCEDURAL REQUIREMENT HAS BEEN SPRUNG UPON AN UNWARY LITIGANT WHEN
PRIOR PRACTICE DID NOT GIVE HIM FAIR NOTICE OF ITS EXISTENCE.  WRIGHT
V. GEORGIA, 373 U.S. 284, 291. 

THE ALABAMA SUPREME COURT HAS APPARENTLY NEVER IN ANY CRIMINAL
CONTEMPT CASE ENTERTAINED A CLAIM OF NONJURISDICTIONAL ERROR.  (FN14)
IN FIELDS V. CITY OF FAIRFIELD, 273 ALA. 588, 143 SO. 2D 177, (FN15)
DECIDED JUST THREE YEARS BEFORE THE PRESENT CASE, THE DEFENDANTS,
MEMBERS OF A "WHITE SUPREMACY" ORGANIZATION WHO HAD DISOBEYED AN
INJUNCTION, SOUGHT TO CHALLENGE THE CONSTITUTIONAL VALIDITY OF A PERMIT
ORDINANCE UPON WHICH THE INJUNCTION WAS BASED.  THE SUPREME COURT OF
ALABAMA, FINDING THAT THE TRIAL COURT HAD JURISDICTION, APPLIED THE
SAME RULE OF LAW WHICH WAS FOLLOWED HERE:

"AS A GENERAL RULE, AN UNCONSTITUTIONAL STATUTE IS AN ABSOLUTE
NULLITY AND MAY NOT FORM THE BASIS OF ANY LEGAL RIGHT OR LEGAL
PROCEEDINGS, YET UNTIL ITS UNCONSTITUTIONALITY HAS BEEN JUDICIALLY
DECLARED IN APPROPRIATE PROCEEDINGS, NO PERSON CHARGED WITH ITS
OBSERVANCE UNDER AN ORDER OR DECREE MAY DISREGARD OR VIOLATE THE ORDER
OR THE DECREE WITH IMMUNITY FROM A CHARGE OF CONTEMPT OF COURT; AND HE
MAY NOT RAISE THE QUESTION OF ITS UNCONSTITUTIONALITY IN COLLATERAL
PROCEEDINGS ON APPEAL FROM A JUDGMENT OF CONVICTION FOR CONTEMPT OF THE
ORDER OR DECREE  ...  ."  273 ALA., AT 590, 143 SO. 2D, AT 180. 

THESE PRECEDENTS CLEARLY PUT THE PETITIONERS ON NOTICE THAT THEY
COULD NOT BYPASS ORDERLY JUDICIAL REVIEW OF THE INJUNCTION BEFORE
DISOBEYING IT.  ANY CLAIM THAT THEY WERE ENTRAPPED OR MISLED IS WHOLLY
UNFOUNDED, A CONCLUSION CONFIRMED BY EVIDENCE IN THE RECORD SHOWING
THAT WHEN THE PETITIONERS DELIBERATELY VIOLATED THE INJUNCTION THEY
EXPECTED TO GO TO JAIL. 

THE RULE OF LAW THAT ALABAMA FOLLOWED IN THIS CASE REFLECTS A BELIEF
THAT IN THE FAIR ADMINISTRATION OF JUSTICE NO MAN CAN BE JUDGE IN HIS
OWN CASE, HOWEVER EXALTED HIS STATION, HOWEVER RIGHTEOUS HIS MOTIVES,
AND IRRESPECTIVE OF HIS RACE, COLOR, POLITICS, OR RELIGION.  (FN16)
THIS COURT CANNOT HOLD THAT THE PETITIONERS WERE CONSTITUTIONALLY FREE
TO IGNORE ALL THE PROCEDURES OF THE LAW AND CARRY THEIR BATTLE TO THE
STREETS.  ONE MAY SYMPATHIZE WITH THE PETITIONERS' IMPATIENT COMMITMENT
TO THEIR CAUSE.  BUT RESPECT FOR JUDICIAL PROCESS IS A SMALL PRICE TO
PAY FOR THE CIVILIZING HAND OF LAW, WHICH ALONE CAN GIVE ABIDING
MEANING TO CONSTITUTIONAL FREEDOM.  AFFIRMED. 

FN1  THE TEXT OF THE INJUNCTION IS REPRODUCED AS APPENDIX A TO THIS
OPINION. 

THE BIRMINGHAM PARADE ORDINANCE, SEC 1159 OF THE BIRMINGHAM CITY
CODE, PROVIDES THAT: 

"IT SHALL BE UNLAWFUL TO ORGANIZE OR HOLD, OR TO ASSIST IN ORGANIZING
OR HOLDING, OR TO TAKE PART OR PARTICIPATE IN, ANY PARADE OR PROCESSION
OR OTHER PUBLIC DEMONSTRATION ON THE STREETS OR OTHER PUBLIC WAYS OF
THE CITY, UNLESS A PERMIT THEREFOR HAS BEEN SECURED FROM THE
COMMISSION. 

"TO SECURE SUCH PERMIT, WRITTEN APPLICATION SHALL BE MADE TO THE
COMMISSION, SETTING FORTH THE PROBABLE NUMBER OF PERSONS, VEHICLES AND
ANIMALS WHICH WILL BE ENGAGED IN SUCH PARADE, PROCESSION OR OTHER
PUBLIC DEMONSTRATION, THE PURPOSE FOR WHICH IT IS TO BE HELD OR HAD,
AND THE STREETS OR OTHER PUBLIC WAYS OVER, ALONG OR IN WHICH IT IS
DESIRED TO HAVE OR HOLD SUCH PARADE, PROCESSION OR OTHER PUBLIC
DEMONSTRATION.  THE COMMISSION SHALL GRANT A WRITTEN PERMIT FOR SUCH
PARADE, PROCESSION OR OTHER PUBLIC DEMONSTRATION, PRESCRIBING THE
STREETS OR OTHER PUBLIC WAYS WHICH MAY BE USED THEREFOR, UNLESS IN ITS
JUDGMENT THE PUBLIC WELFARE, PEACE, SAFETY, HEALTH, DECENCY, GOOD
ORDER, MORALS OR CONVENIENCE REQUIRE THAT IT BE REFUSED.  IT SHALL BE
UNLAWFUL TO USE FOR SUCH PURPOSES ANY OTHER STREETS OR PUBLIC WAYS THAN
THOSE SET OUT IN SAID PERMIT. 

"THE TWO PRECEDING PARAGRAPHS, HOWEVER, SHALL NOT APPLY TO FUNERAL
PROCESSIONS." 

FN2  THE FULL STATEMENT IS REPRODUCED AS APPENDIX B TO THIS OPINION. 

FN3  "THE CIRCUIT COURT, OR JUDGES THEREOF WHEN EXERCISING EQUITY
JURISDICTION AND POWERS MAY PUNISH FOR CONTEMPT BY FINE NOT EXCEEDING
FIFTY DOLLARS, AND BY IMPRISONMENT, NOT EXCEEDING FIVE DAYS, ONE OR
BOTH."  ALA. CODE, TIT. 13, SEC 143.  SEE ALSO ID., SECS 4-5, 126. 

THE CIRCUIT COURT DISMISSED THE CONTEMPT PROCEEDINGS AGAINST SEVERAL
INDIVIDUALS ON GROUNDS OF INSUFFICIENT EVIDENCE. 

THOSE PETITIONERS WHO PARTICIPATED IN THE APRIL 11 PRESS CONFERENCE
CONTEND THAT THE CIRCUIT COURT IMPROPERLY RELIED ON THIS INCIDENT IN
FINDING THEM GUILTY OF CONTEMPT, CLAIMING THAT THEY WERE ENGAGED IN
CONSTITUTIONALLY PROTECTED FREE SPEECH.  WE FIND NO INDICATION THAT THE
COURT CONSIDERED THE INCIDENT FOR ANY PURPOSE OTHER THAN THE LEGITIMATE
ONE OF ESTABLISHING THAT THE PARTICIPATING PETITIONERS' SUBSEQUENT
VIOLATION OF THE INJUNCTION BY PARADING WITHOUT A PERMIT WAS WILLFUL
AND DELIBERATE. 

FN4  THE ALABAMA SUPREME COURT QUASHED THE CONVICTION OF ONE
DEFENDANT BECAUSE OF INSUFFICIENT PROOF THAT HE KNEW OF THE INJUNCTION
BEFORE VIOLATING IT, AND THE CONVICTIONS OF TWO OTHERS BECAUSE THERE
WAS NO SHOWING THAT THEY HAD DISOBEYED THE ORDER.  279 ALA. 53, 64, 181
SO. 2D 493, 504. 

TWO OF THE PETITIONERS HERE CLAIM THAT THERE WAS A COMPLETE DEARTH OF
EVIDENCE TO ESTABLISH THAT THEY HAD KNOWLEDGE OF THE INJUNCTION BEFORE
VIOLATING IT, AND THAT THEIR CONVICTIONS ARE THEREFORE CONSTITUTIONALLY
DEFECTIVE UNDER THE PRINCIPLE OF THOMPSON V. LOUISVILLE, 362 U.S. 199. 
THE ALABAMA SUPREME COURT'S RECITATION OF THE EVIDENCE ON THIS ISSUE,
WHICH IS SUPPORTED BY THE RECORD, PLAINLY SHOWS THIS CLAIM IS WITHOUT
FOUNDATION.  IT IS, OF COURSE, A FAMILIAR DOCTRINE THAT PROOF OF THE
ELEMENTS OF CRIMINAL CONTEMPT MAY BE ESTABLISHED BY CIRCUMSTANTIAL
EVIDENCE.  BULLOCK V. UNITED STATES, 265 F.2D 683, CERT. DENIED SUB
NOM. KASPER V. UNITED STATES, 360 U.S. 932. 

FN5  BROUGHAM V. OCEANIC STEAM NAVIGATION CO., 205 F. 857; TRICKETT
V. KAW VALLEY DRAINAGE DIST., 25 F.2D 851, CERT. DENIED, 278 U.S. 624;
O'HEARNE V. UNITED STATES, 62 APP. D.C.  285, 66 F.2D 933, CERT.
DENIED, 290 U.S. 683; LOCKE V. UNITED STATES, 75 F.2D 157, CERT.
DENIED, 295 U.S. 733; MCCANN V. NEW YORK STOCK EXCHANGE, 80 F.2D 211,
CERT. DENIED SUB NOM. MCCANN V. LEIBELL, 299 U.S. 603; MCLEOD V.
MAJORS, 102 F.2D 128; KASPER V. BRITTAIN, 245 F.2D 92, CERT. DENIED,
355 U.S. 834.  SEE ALSO EX PARTE ROWLAND, 104 U.S. 604; IN RE AYERS,
123 U.S. 443; IN RE BURRUS, 136 U.S. 586; UNITED STATES V. SHIPP, 203
U.S. 563; UNITED STATES V. MINE WORKERS, 330 U.S. 258. 

FN6  IN IN RE GREEN, 369 U.S. 689, THE PETITIONER WAS CONVICTED OF
CRIMINAL CONTEMPT FOR VIOLATING A LABOR INJUNCTION ISSUED BY AN OHIO
COURT.  RELYING ON THE PRE-EMPTIVE COMMAND OF THE FEDERAL LABOR LAW,
THE COURT HELD THAT THE STATE COURTS WERE REQUIRED TO HEAR GREEN'S
CLAIM THAT THE STATE COURT WAS WITHOUT JURISDICTION TO ISSUE THE
INJUNCTION.  THE PETITIONER IN GREEN, UNLIKE THE PETITIONERS HERE, HAD
ATTEMPTED TO CHALLENGE THE VALIDITY OF THE INJUNCTION BEFORE VIOLATING
IT BY PROMPTLY APPLYING TO THE ISSUING COURT FOR AN ORDER VACATING THE
INJUNCTION.  THE PETITIONER IN GREEN HAD FURTHER OFFERED TO PROVE THAT
THE COURT ISSUING THE INJUNCTION HAD AGREED TO ITS VIOLATION AS AN
APPROPRIATE MEANS OF TESTING ITS VALIDITY. 

FN7  ALA. CONST., ART. 6, SEC 144; ALA. CODE, TIT. 7, SECS 1038
1039. 

FN8  SEE N. 1, SUPRA. 

FN9  MRS. LOLA HENDRICKS, NOT A PETITIONER IN THIS CASE, TESTIFIED
THAT ON APRIL 3: 

"I WENT TO MR. CONNOR'S OFFICE, THE COMMISSIONER'S OFFICE AT THE CITY
HALL BUILDING.  WE WENT UP AND COMMISSIONER CONNOR MET US AT THE DOOR. 
HE ASKED, 'MAY I HELP YOU?'  I TOLD HIM, 'YES, SIR, WE CAME UP TO APPLY
OR SEE ABOUT GETTING A PERMIT FOR PICKETING, PARADING, DEMONSTRATING.' 

     *   *         *         *         * 

"I ASKED COMMISSIONER CONNOR FOR THE PERMIT, AND ASKED IF HE COULD
ISSUE THE PERMIT, OR OTHER PERSONS WHO WOULD REFER ME TO, PERSONS WHO
WOULD ISSUE A PERMIT.  HE SAID, 'NO, YOU WILL NOT GET A PERMIT IN
BIRMINGHAM, ALABAMA TO PICKET.  I WILL PICKET YOU OVER TO THE CITY
JAIL,' AND HE REPEATED THAT TWICE." 

FN10  COMMISSIONER CONNOR SENT THE FOLLOWING TELEGRAM TO ONE OF THE
PETITIONERS ON APRIL 5: 

"UNDER THE PROVISIONS OF THE CITY CODE OF THE CITY OF BIRMINGHAM, A
PERMIT TO PICKET AS REQUESTED BY YOU CANNOT BE GRANTED BY ME
INDIVIDUALLY BUT IS THE RESPONSIBILITY OF THE ENTIRE COMMISSION.  I
INSIST THAT YOU AND YOUR PEOPLE DO NOT START ANY PICKETING ON THE
STREETS IN BIRMINGHAM, ALABAMA.  "EUGENE 'BULL' CONNOR, COMMISSIONER OF
PUBLIC SAFETY." 

FN11  IN ITS OPINION, THAT COURT STATED:  "THE LEGAL AND ORDERLY
PROCESSES OF THE COURT WOULD REQUIRE THE DEFENDANTS TO ATTACK THE
UNREASONABLE DENIAL OF SUCH PERMIT BY THE COMMISSION OF THE CITY OF
BIRMINGHAM THROUGH MEANS OF A MOTION TO DISSOLVE THE INJUNCTION AT
WHICH TIME THIS COURT WOULD HAVE THE OPPORTUNITY TO PASS UPON THE
QUESTION OF WHETHER OR NOT A COMPLIANCE WITH THE ORDINANCE WAS
ATTEMPTED AND WHETHER OR NOT AN ARBITRARY AND CAPRICIOUS DENIAL OF SUCH
REQUEST WAS MADE BY THE COMMISSION OF THE CITY OF BIRMINGHAM.  SINCE
THIS COURSE OF CONDUCT WAS NOT SOUGHT BY THE DEFENDANTS, THE COURT IS
OF THE OPINION THAT THE VALIDITY OF ITS INJUNCTION ORDER STANDS UPON
ITS PRIMA FACIE AUTHORITY TO EXECUTE THE SAME." 

FN12  ALA. CODE, TIT. 7 APP., SUP. CT. RULE 47. 

FN13  SHUTTLESWORTH V. CITY OF BIRMINGHAM, 43 ALA. APP. 68, 180 SO.
2D 114.  THE CASE IS PRESENTLY PENDING ON CERTIORARI REVIEW IN THE
ALABAMA SUPREME COURT. 

FN14  AS EARLY AS 1904, THE ALABAMA SUPREME COURT NOTED THAT:  "AN
EVIDENT DISTINCTION IS TO BE MADE IN CONTEMPT PROCEEDINGS FOR THE
VIOLATION OF THE WRIT OF INJUNCTION, WHERE THE WRIT IS IMPROVIDENTLY OR
IRREGULARLY ISSUED, AND WHERE IT IS ISSUED WITHOUT JURISDICTION  ...
."  OLD DOMINION TELEGRAPH CO. V. POWERS, 140 ALA. 220, 226, 37 SO.
195, 197.  SEE BOARD OF REVENUE OF COVINGTON COUNTY V. MERRILL, 193
ALA. 521, 68 SO. 971. 

FN15  REVERSED ON OTHER GROUNDS, 375 U.S. 248. 

FN16  THE SAME RULE OF LAW WAS FOLLOWED IN KASPER V. BRITTAIN, 245
F.2D 92.  THERE, A FEDERAL COURT HAD ORDERED THE PUBLIC HIGH SCHOOL IN
CLINTON, TENNESSEE, TO DESEGREGATE.  KASPER "ARRIVED FROM SOMEWHERE IN
THE EAST," AND ORGANIZED A CAMPAIGN "TO RUN THE NEGROES OUT OF THE
SCHOOL."  THE FEDERAL COURT ISSUED AN EX PARTE RESTRAINING ORDER
ENJOINING KASPER FROM INTERFERING WITH DESEGREGATION.  RELYING UPON THE
FIRST AMENDMENT, KASPER HARANGUED A CROWD "TO THE EFFECT THAT ALTHOUGH
HE HAD BEEN SERVED WITH THE RESTRAINING ORDER, IT DID NOT MEAN ANYTHING
...  ."  HIS CONVICTION FOR CRIMINAL CONTEMPT WAS AFFIRMED BY THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT.  THAT COURT CONCLUDED THAT "AN
INJUNCTIONAL ORDER ISSUED BY A COURT MUST BE OBEYED," WHATEVER ITS
SEEMING INVALIDITY, CITING HOWAT V. KANSAS, 258 U.S. 181.  THIS COURT
DENIED CERTIORARI, 355 U.S. 834. 

                    APPENDIX A TO OPINION OF THE COURT. 

"TEMPORARY INJUNCTION - APRIL 10, 1963. 

"A VERIFIED BILL OF COMPLAINT IN THE ABOVE STYLED CAUSE HAVING BEEN
PRESENTED TO ME ON THIS THE 10TH OF APRIL 1963 AT 9:00 O'CLOCK P.M. IN
THE CITY OF BIRMINGHAM, ALABAMA. 

"UPON CONSIDERATION OF SAID VERIFIED BILL OF COMPLAINT AND THE
AFFIDAVITS OF CAPTAIN G. V. EVANS AND CAPTAIN GEORGE WALL, AND THE
PUBLIC WELFARE, PEACE AND SAFETY REQUIRING IT, IT IS HEREBY CONSIDERED,
ORDERED, ADJUDGED AND DECREED THAT A PEREMPTORY OR A TEMPORARY WRIT OF
INJUNCTION BE AND THE SAME IS HEREBY ISSUED IN ACCORDANCE WITH THE
PRAYER OF SAID PETITION. 

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT THAT UPON
THE COMPLAINANT ENTERING INTO A GOOD AND SUFFICIENT BOND CONDITIONED AS
PROVIDED BY LAW, IN THE SUM OF TWENTY FIVE HUNDRED DOLLARS ($2500.00),
SAME TO BE APPROVED BY THE REGISTER OF THIS COURT THAT THE REGISTER
ISSUE A PEREMPTORY OR TEMPORARY WRIT OF INJUNCTION THAT THE RESPONDENTS
AND THE OTHERS IDENTIFIED IN SAID BILL OF COMPLAINT, THEIR AGENTS,
MEMBERS, EMPLOYEES, SERVANTS, FOLLOWERS, ATTORNEYS, SUCCESSORS AND ALL
OTHER PERSONS IN ACTIVE CONCERT OR PARTICIPATION WITH THE RESPONDENTS
AND ALL PERSONS HAVING NOTICE OF SAID ORDER FROM CONTINUING ANY ACT
HEREINABOVE DESIGNATED PARTICULARLY:  ENGAGING IN, SPONSORING, INCITING
OR ENCOURAGING MASS STREET PARADES OR MASS PROCESSIONS OR LIKE
DEMONSTRATIONS WITHOUT A PERMIT, TRESPASS ON PRIVATE PROPERTY AFTER
BEING WARNED TO LEAVE THE PREMISES BY THE OWNER OR PERSON IN POSSISSION
OF SAID PRIVATE PROPERTY, CONGREGATING ON THE STREET OR PUBLIC PLACES
INTO MOBS, AND UNLAWFULLY PICKETING BUSINESS ESTABLISHMENTS OR PUBLIC
BUILDINGS IN THE CITY OF BIRMINGHAM, JEFFERSON COUNTY, STATE OF ALABAMA
OR PERFORMING ACTS CALCULATED TO CAUSE BREACHES OF THE PEACE IN THE
CITY OF BIRMINGHAM, JEFFERSON COUNTY, IN THE STATE OF ALABAMA OR FROM
CONSPIRING TO ENGAGE IN UNLAWFUL STREET PARADES, UNLAWFUL PROCESSIONS,
UNLAWFUL DEMONSTRATIONS, UNLAWFUL BOYCOTTS, UNLAWFUL TRESPASSES, AND
UNLAWFUL PICKETING OR OTHER LIKE UNLAWFUL CONDUCT OR FROM VIOLATING THE
ORDINANCES OF THE CITY OF BIRMINGHAM AND THE STATUTES OF THE STATE OF
ALABAMA OR FROM DOING ANY ACTS DESIGNED TO CONSUMMATE CONSPIRACIES TO
ENGAGE IN SAID UNLAWFUL ACTS OF PARADING, DEMONSTRATING, BOYCOTTING,
TRESPASSING AND PICKETING OR OTHER UNLAWFUL ACTS, OR FROM ENGAGING IN
ACTS AND CONDUCT CUSTOMARILY KNOWN AS 'KNEEL-INS' IN CHURCHES IN
VIOLATION OF THE WISHES AND DESIRES OF SAID CHURCHES. 

                    "W. A. JENKINS, JR., AS CIRCUIT JUDGE OF THE
TENTH

                     JUDICIAL CIRCUIT OF ALABAMA, IN EQUITY
SITTING." 

APPENDIX B TO OPINION OF THE COURT. 

"IN OUR STRUGGLE FOR FREEDOM WE HAVE ANCHORED OUR FAITH AND HOPE IN
THE RIGHTNESS OF THE CONSTITUTION AND THE MORAL LAWS OF THE UNIVERSE. 

"AGAIN AND AGAIN THE FEDERAL JUDICIARY HAS MADE IT CLEAR THAT THE
PRIVILEGES GUARANTEED UNDER THE FIRST AND THE FOURTEENTH AMENDMENTS ARE
TOO SACRED TO BE TRAMPLED UPON BY THE MACHINERY OF STATE GOVERNMENT AND
POLICE POWER.  IN THE PAST WE HAVE ABIDED BY FEDERAL INJUNCTIONS OUT OF
RESPECT FOR THE FORTHRIGHT AND CONSISTENT LEADERSHIP THAT THE FEDERAL
JUDICIARY HAS GIVEN IN ESTABLISHING THE PRINCIPLE OF INTEGRATION AS THE
LAW OF THE LAND. 

"HOWEVER WE ARE NOW CONFRONTED WITH RECALCITRANT FORCES IN THE DEEP
SOUTH THAT WILL USE THE COURTS TO PERPETUATE THE UNJUST AND ILLEGAL
SYSTEM OF RACIAL SEPARATION. 

"ALABAMA HAS MADE CLEAR ITS DETERMINATION TO DEFY THE LAW OF THE
LAND.  MOST OF ITS PUBLIC OFFICIALS, ITS LEGISLATIVE BODY AND MANY OF
ITS LAW ENFORCEMENT AGENTS HAVE OPENLY DEFIED THE DESEGREGATION
DECISION OF THE SUPREME COURT.  WE WOULD FEEL MORALLY AND LEGALLY
RESPONSIBLE TO OBEY THE INJUNCTION IF THE COURTS OF ALABAMA APPLIED
EQUAL JUSTICE TO ALL OF ITS CITIZENS.  THIS WOULD BE SAMENESS MADE
LEGAL.  HOWEVER THE ISSUANCE OF THIS INJUNCTION IS A BLATANT OF
DIFFERENCE MADE LEGAL. 

"SOUTHERN LAW ENFORCEMENT AGENCIES HAVE DEMONSTRATED NOW AND AGAIN
THAT THEY WILL UTILIZE THE FORCE OF LAW TO MISUSE THE JUDICIAL
PROCESS. 

"THIS IS RAW TYRANNY UNDER THE GUISE OF MAINTAINING LAW AND ORDER. 
WE CANNOT IN ALL GOOD CONSCIENCE OBEY SUCH AN INJUNCTION WHICH IS AN
UNJUST, UNDEMOCRATIC AND UNCONSTITUTIONAL MISUSE OF THE LEGAL PROCESS. 

"WE DO THIS NOT OUT OF ANY DISRESPECT FOR THE LAW BUT OUT OF THE
HIGHEST RESPECT FOR THE LAW.  THIS IS NOT AN ATTEMPT TO EVADE OR DEFY
THE LAW OR ENGAGE IN CHAOTIC ANARCHY.  JUST AS IN ALL GOOD CONSCIENCE
WE CANNOT OBEY UNJUST LAWS, NEITHER CAN WE RESPECT THE UNJUST USE OF
THE COURTS. 

"WE BELIEVE IN A SYSTEM OF LAW BASED ON JUSTICE AND MORALITY.  OUT OF
OUR GREAT LOVE FOR THE CONSTITUTION OF THE U.S. AND OUR DESIRE TO
PURIFY THE JUDICIAL SYSTEM OF THE STATE OF ALABAMA, WE RISK THIS
CRITICAL MOVE WITH AN AWARENESS OF THE POSSIBLE CONSEQUENCES INVOLVED. 

MR. CHIEF JUSTICE WARREN, WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
FORTAS JOIN, DISSENTING. 

PETITIONERS IN THIS CASE CONTEND THAT THEY WERE CONVICTED UNDER AN
ORDINANCE THAT IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT SUBMITS THEIR
FIRST AND FOURTEENTH AMENDMENT RIGHTS TO FREE SPEECH AND PEACEFUL
ASSEMBLY TO THE UNFETTERED DISCRETION OF LOCAL OFFICIALS.  THEY FURTHER
CONTEND THAT THE ORDINANCE WAS UNCONSTITUTIONALLY APPLIED TO THEM
BECAUSE THE LOCAL OFFICIALS USED THEIR DISCRETION TO PROHIBIT PEACEFUL
DEMONSTRATIONS BY A GROUP WHOSE POLITICAL VIEWPOINT THE OFFICIALS
OPPOSED.  THE COURT DOES NOT DISPUTE THESE CONTENTIONS, BUT HOLDS THAT
PETITIONERS MAY NONETHELESS BE CONVICTED AND SENT TO JAIL BECAUSE THE
PATENTLY UNCONSTITUTIONAL ORDINANCE WAS COPIED INTO AN INJUNCTION -
ISSUED EX PARTE WITHOUT PRIOR NOTICE OR HEARING ON THE REQUEST OF THE
COMMISSIONER OF PUBLIC SAFETY - FORBIDDING ALL PERSONS HAVING NOTICE OF
THE INJUNCTION TO VIOLATE THE ORDINANCE WITHOUT ANY LIMITATION OF
TIME.  I DISSENT BECAUSE I DO NOT BELIEVE THAT THE FUNDAMENTAL
PROTECTIONS OF THE CONSTITUTION WERE MEANT TO BE SO EASILY EVADED, OR
THAT "THE CIVILIZING HAND OF LAW" WOULD BE HAMPERED IN THE SLIGHTEST BY
ENFORCING THE FIRST AMENDMENT IN THIS CASE. 

THE SALIENT FACTS CAN BE STATED VERY BRIEFLY.  PETITIONERS ARE NEGRO
MINISTERS WHO SOUGHT TO EXPRESS THEIR CONCERN ABOUT RACIAL
DISCRIMINATION IN BIRMINGHAM, ALABAMA, BY HOLDING PEACEFUL PROTEST
DEMONSTRATIONS IN THAT CITY ON GOOD FRIDAY AND EASTER SUNDAY 1963.  FOR
OBVIOUS REASONS, IT WAS IMPORTANT FOR THE SIGNIFICANCE OF THE
DEMONSTRATIONS THAT THEY BE HELD ON THOSE PARTICULAR DATES.  A
REPRESENTATIVE OF PETITIONERS' ORGANIZATION WENT TO THE CITY HALL AND
ASKED "TO SEE THE PERSON OR PERSONS IN CHARGE TO ISSUE PERMITS, PERMITS
FOR PARADING, PICKETING, AND DEMONSTRATING."  SHE WAS DIRECTED TO
PUBLIC SAFETY COMMISSIONER CONNOR, WHO DENIED HER REQUEST FOR A PERMIT
IN TERMS THAT LEFT NO DOUBT THAT PETITIONERS WERE NOT GOING TO BE
ISSUED A PERMIT UNDER ANY CIRCUMSTANCES.  "HE SAID, 'NO, YOU WILL NOT
GET A PERMIT IN BIRMINGHAM, ALABAMA TO PICKET.  I WILL PICKET YOU OVER
TO THE CITY JAIL,' AND HE REPEATED THAT TWICE."  A SECOND, TELEGRAPHIC
REQUEST WAS ALSO SUMMARILY DENIED, IN A TELEGRAM SIGNED BY "EUGENE
'BULL' CONNOR," WITH THE ADDED INFORMATION THAT PERMITS COULD BE ISSUED
ONLY BY THE FULL CITY COMMISSION, A THREE-MAN BODY CONSISTING OF
COMMISSIONER CONNOR AND TWO OTHERS.  (FN1)  ACCORDING TO PETITIONERS'
OFFER OF PROOF, THE TRUTH OF WHICH IS ASSUMED FOR PURPOSES OF THIS
CASE, PARADE PERMITS HAD UNIFORMLY BEEN ISSUED FOR ALL OTHER GROUPS BY
THE CITY CLERK ON THE REQUEST OF THE TRAFFIC BUREAU OF THE POLICE
DEPARTMENT, WHICH WAS UNDER COMMISSIONER CONNOR'S DIRECTION.  THE
REQUIREMENT THAT THE APPROVAL OF THE FULL COMMISSION BE OBTAINED WAS
APPLIED ONLY TO THIS ONE GROUP. 

UNDERSTANDABLY CONVINCED THAT THE CITY OF BIRMINGHAM WAS NOT GOING TO
AUTHORIZE THEIR DEMONSTRATIONS UNDER ANY CIRCUMSTANCES, PETITIONERS
PROCEEDED WITH THEIR PLANS DESPITE COMMISSIONER CONNOR'S ORDERS.  ON
WEDNESDAY, APRIL 10, AT 9 IN THE EVENING, THE CITY FILED IN A STATE
CIRCUIT COURT A BILL OF COMPLAINT SEEKING AN EX PARTE INJUNCTION.  THE
COMPLAINT RECITED THAT PETITIONERS WERE ENGAGING IN A SERIES OF
DEMONSTRATIONS AS "PART OF A MASSIVE EFFORT  ...  TO FORCIBLY INTEGRATE
ALL BUSINESS ESTABLISHMENTS, CHURCHES, AND OTHER INSTITUTIONS" IN THE
CITY, WITH THE RESULT THAT THE POLICE DEPARTMENT WAS STRAINED IN ITS
RESOURCES AND THE SAFETY, PEACE, AND TRANQUILITY WERE THREATENED.  IT
WAS ALLEGED AS PARTICULARLY MENACING THAT PETITIONERS WERE PLANNING TO
CONDUCT "KNEEL-IN" DEMONSTRATIONS AT CHURCHES WHERE THEIR PRESENCE WAS
NOT WANTED.  THE CITY'S POLICE DOGS WERE SAID TO BE IN DANGER OF THEIR
LIVES.  FACED WITH THESE RECITALS, THE CIRCUIT COURT ISSUED THE
INJUNCTION IN THE FORM REQUESTED, AND IN EFFECT ORDERED PETITIONERS AND
ALL OTHER PERSONS HAVING NOTICE OF THE ORDER TO REFRAIN FOR AN
UNLIMITED TIME FROM CARRYING ON ANY DEMONSTRATIONS WITHOUT A PERMIT.  A
PERMIT, OF COURSE, WAS CLEARLY UNOBTAINABLE; THE CITY WOULD NOT HAVE
SOUGHT THIS INJUNCTION IF IT HAD ANY INTENTION OF ISSUING ONE. 

PETITIONERS WERE SERVED WITH COPIES OF THE INJUNCTION AT VARIOUS
TIMES ON THURSDAY AND ON GOOD FRIDAY.  UNABLE TO BELIEVE THAT SUCH A
BLATANT AND BROADLY DRAWN PRIOR RESTRAINT ON THEIR FIRST AMENDMENT
RIGHTS COULD BE VALID, THEY ANNOUNCED THEIR INTENTION TO DEFY IT AND
WENT AHEAD WITH THE PLANNED PEACEFUL DEMONSTRATIONS ON EASTER WEEKEND. 
ON THE FOLLOWING MONDAY, WHEN THEY PROMPTLY FILED A MOTION TO DISSOLVE
THE INJUNCTION, THE COURT FOUND THEM IN CONTEMPT, HOLDING THAT THEY HAD
WAIVED ALL THEIR FIRST AMENDMENT RIGHTS BY DISOBEYING THE COURT ORDER. 

THESE FACTS LEND NO SUPPORT TO THE COURT'S CHARGES THAT PETITIONERS
WERE PRESUMING TO ACT AS JUDGES IN THEIR OWN CASE, OR THAT THEY HAD A
DISREGARD FOR THE JUDICIAL PROCESS.  THEY DID NOT FLEE THE JURISDICTION
OR REFUSE TO APPEAR IN THE ALABAMA COURTS.  HAVING VIOLATED THE
INJUNCTION, THEY PROMPTLY SUBMITTED THEMSELVES TO THE COURTS TO TEST
THE CONSTITUTIONALITY OF THE INJUNCTION AND THE ORDINANCE IT PARROTED. 
THEY WERE IN ESSENTIALLY THE SAME POSITION AS PERSONS WHO CHALLENGE THE
CONSTITUTIONALITY OF A STATUTE BY VIOLATING IT, AND THEN DEFEND THE
ENSUING CRIMINAL PROSECUTION ON CONSTITUTIONAL GROUNDS.  IT HAS NEVER
BEEN THOUGHT THAT VIOLATION OF A STATUTE INDICATED SUCH A DISRESPECT
FOR THE LEGISLATURE THAT THE VIOLATOR ALWAYS MUST BE PUNISHED EVEN IF
THE STATUTE WAS UNCONSTITUTIONAL.  ON THE CONTRARY, SOME CASES HAVE
REQUIRED THAT PERSONS SEEKING TO CHALLENGE THE CONSTITUTIONALITY OF A
STATUTE FIRST VIOLATE IT TO ESTABLISH THEIR STANDING TO SUE.  (FN2)
INDEED, IT SHOWS NO DISRESPECT FOR LAW TO VIOLATE A STATUTE ON THE
GROUND THAT IT IS UNCONSTITUTIONAL AND THEN TO SUBMIT ONE'S CASE TO THE
COURTS WITH THE WILLINGNESS TO ACCEPT THE PENALTY IF THE STATUTE IS
HELD TO BE VALID. 

THE COURT CONCEDES THAT "THE GENERALITY OF THE LANGUAGE CONTAINED IN
THE BIRMINGHAM PARADE ORDINANCE UPON WHICH THE INJUNCTION WAS BASED
WOULD UNQUESTIONABLY RAISE SUBSTANTIAL CONSTITUTIONAL ISSUES CONCERNING
SOME OF ITS PROVISIONS."  (FN3)  ANTE, P. 316.  THAT CONCESSION IS WELL
FOUNDED BUT MINIMAL.  I BELIEVE IT IS PATENTLY UNCONSTITUTIONAL ON ITS
FACE.  OUR DECISIONS HAVE CONSISTENTLY HELD THAT PICKETING AND PARADING
ARE MEANS OF EXPRESSION PROTECTED BY THE FIRST AMENDMENT, AND THAT THE
RIGHT TO PICKET OR PARADE MAY NOT BE SUBJECTED TO THE UNFETTERED
DISCRETION OF LOCAL OFFICIALS.  COX V. LOUISIANA, 379 U.S. 536 (1965);
EDWARDS V. SOUTH CAROLINA, 372 U.S. 299 (1963); THORNHILL V. ALABAMA,
310 U.S. 88 (1940).  ALTHOUGH A CITY MAY REGULATE THE MANNER OF USE OF
ITS STREETS AND SIDEWALKS IN THE INTEREST OF KEEPING THEM OPEN FOR THE
MOVEMENT OF TRAFFIC, IT MAY NOT ALLOW LOCAL OFFICIALS UNBRIDLED
DISCRETION TO DECIDE WHO SHALL BE ALLOWED TO PARADE OR PICKET AND WHO
SHALL NOT.  "WHEREVER THE TITLE OF STREETS AND PARKS MAY REST, THEY
HAVE IMMEMORIALLY BEEN HELD IN TRUST FOR THE USE OF THE PUBLIC AND,
TIME OUT OF MIND, HAVE BEEN USED FOR PURPOSES OF ASSEMBLY,
COMMUNICATING THOUGHTS BETWEEN CITIZENS, AND DISCUSSING PUBLIC
QUESTIONS.  SUCH USE OF THE STREETS AND PUBLIC PLACES HAS, FROM ANCIENT
TIMES, BEEN A PART OF THE PRIVILEGES, IMMUNITIES, RIGHTS, AND LIBERTIES
OF CITIZENS.  THE PRIVILEGE OF A CITIZEN OF THE UNITED STATES TO USE
THE 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."  HAGUE V.
C.I.O., 307 U.S. 496, 515-516 (1939) (OPINION OF MR. JUSTICE ROBERTS). 
WHEN LOCAL OFFICIALS ARE GIVEN TOTALLY UNFETTERED DISCRETION TO DECIDE
WHETHER A PROPOSED DEMONSTRATION IS CONSISTENT WITH "PUBLIC WELFARE,
PEACE, SAFETY, HEALTH, DECENCY, GOOD ORDER, MORALS OR CONVENIENCE," AS
THEY WERE IN THIS CASE, THEY ARE INVITED TO ACT AS CENSORS OVER THE
VIEWS THAT MAY BE PRESENTED TO THE PUBLIC.  (FN4)  THE
UNCONSTITUTIONALITY OF THE ORDINANCE IS COMPOUNDED, OF COURSE, WHEN
THERE IS CONVINCING EVIDENCE THAT THE OFFICIALS HAVE IN FACT USED THEIR
POWER TO DENY PERMITS TO ORGANIZATIONS WHOSE VIEWS THEY DISLIKE.  (FN5)
THE RECORD IN THIS CASE HARDLY SUGGESTS THAT COMMISSIONER CONNOR AND
THE OTHER CITY OFFICIALS WERE MOTIVATED IN PROHIBITING CIVIL RIGHTS
PICKETING ONLY BY THEIR OVERWHELMING CONCERN FOR PARTICULAR TRAFFIC
PROBLEMS.  PETITIONERS WERE GIVEN TO UNDERSTAND THAT UNDER NO
CIRCUMSTANCES WOULD THEY BE PERMITTED TO DEMONSTRATE IN BIRMINGHAM, NOT
THAT A DEMONSTRATION WOULD BE APPROVED IF A TIME AND PLACE WERE
SELECTED THAT WOULD MINIMIZE THE TRAFFIC DIFFICULTIES.  THE ONLY
CIRCUMSTANCE THAT THE COURT CAN FIND TO JUSTIFY ANYTHING OTHER THAN A
PER CURIAM REVERSAL IS THAT COMMISSIONER CONNOR HAD THE FORESIGHT TO
HAVE THE UNCONSTITUTIONAL ORDINANCE INCLUDED IN AN EX PARTE INJUNCTION,
ISSUED WITHOUT NOTICE OR HEARING OR ANY SHOWING THAT IT WAS IMPOSSIBLE
TO HAVE NOTICE OR A HEARING, FORBIDDING THE WORLD AT LARGE (INSOFAR AS
IT KNEW OF THE ORDER) TO CONDUCT DEMONSTRATIONS IN BIRMINGHAM WITHOUT
THE CONSENT OF THE CITY OFFICIALS.  THIS INJUNCTION WAS SUCH POTENT
MAGIC THAT IT TRANSFORMED THE COMMAND OF AN UNCONSTITUTIONAL STATUTE
INTO AN IMPREGNABLE BARRIER, CHALLENGEABLE ONLY IN WHAT LIKELY WOULD
HAVE BEEN PROTRACTED LEGAL PROCEEDINGS AND ENTIRELY SUPERIOR IN THE
MEANTIME EVEN TO THE UNITED STATES CONSTITUTION. 

I DO NOT BELIEVE THAT GIVING THIS COURT'S SEAL OF APPROVAL TO SUCH A
GROSS MISUSE OF THE JUDICIAL PROCESS IS LIKELY TO LEAD TO GREATER
RESPECT FOR THE LAW ANY MORE THAN IT IS LIKELY TO LEAD TO GREATER
PROTECTION FOR FIRST AMENDMENT FREEDOMS.  THE EX PARTE TEMPORARY
INJUNCTION HAS A LONG AND ODIOUS HISTORY IN THIS COUNTRY, AND ITS
SUSCEPTIBILITY TO MISUSE IS ALL TOO APPARENT FROM THE FACTS OF THE
CASE.  AS A WEAPON AGAINST STRIKES, IT PROVED SO EFFECTIVE IN THE HANDS
OF JUDGES FRIENDLY TO EMPLOYERS THAT CONGRESS WAS FORCED TO TAKE THE
DRASTIC STEP OF REMOVING FROM FEDERAL DISTRICT COURTS THE JURISDICTION
TO ISSUE INJUNCTIONS IN LABOR DISPUTES.  (FN6)  THE LABOR INJUNCTION
FELL INTO DISREPUTE LARGELY BECAUSE IT WAS ABUSED IN PRECISELY THE SAME
WAY THAT THE INJUNCTIVE POWER WAS ABUSED IN THIS CASE.  JUDGES WHO WERE
NOT SYMPATHETIC TO THE UNION CAUSE COMMONLY ISSUED, WITHOUT NOTICE OR
HEARING, BROAD RESTRAINING ORDERS ADDRESSED TO LARGE NUMBERS OF PERSONS
AND FORBIDDING THEM TO ENGAGE IN ACTS THAT WERE EITHER LEGALLY
PERMISSIBLE OR, IF ILLEGAL, THAT COULD BETTER HAVE BEEN LEFT TO THE
REGULAR COURSE OF CRIMINAL PROSECUTION.  THE INJUNCTIONS MIGHT LATER BE
DISSOLVED, BUT IN THE MEANTIME STRIKES WOULD BE CRIPPLED BECAUSE THE
OCCASION ON WHICH CONCERTED ACTIVITY MIGHT HAVE BEEN EFFECTIVE HAD
PASSED.  (FN7)  SUCH INJUNCTIONS, SO LONG DISCREDITED AS WEAPONS
AGAINST CONCERTED LABOR ACTIVITIES, HAVE NOW BEEN GIVEN NEW LIFE BY
THIS COURT AS WEAPONS AGAINST THE EXERCISE OF FIRST AMENDMENT
FREEDOMS.  RESPECT FOR THE COURTS AND FOR JUDICIAL PROCESS WAS NOT
INCREASED BY THE HISTORY OF THE LABOR INJUNCTION.  (FN8)    NOTHING IN
OUR PRIOR DECISIONS, OR IN THE DOCTRINE THAT A PARTY SUBJECT TO A
TEMPORARY INJUNCTION ISSUED BY A COURT OF COMPETENT JURISDICTION WITH
POWER TO DECIDE A DISPUTE PROPERLY BEFORE IT MUST NORMALLY CHALLENGE
THE INJUNCTION IN THE COURTS RATHER THAN BY VIOLATING IT, REQUIRES THAT
WE AFFIRM THE CONVICTIONS IN THIS CASE.  THE MAJORITY OPINION IN THIS
CASE RESTS ESSENTIALLY ON A SINGLE PRECEDENT, AND THAT A CASE THE
AUTHORITY OF WHICH HAS CLEARLY BEEN UNDERMINED BY SUBSEQUENT
DECISIONS.  HOWAT V. KANSAS, 258 U.S. 181 (1922), WAS DECIDED IN THE
DAYS WHEN THE LABOR INJUNCTION WAS IN FASHION.  KANSAS HAD ADOPTED AN
INDUSTRIAL RELATIONS ACT, THE PURPOSE OF WHICH IN EFFECT WAS TO PROVIDE
FOR COMPULSORY ARBITRATION OF LABOR DISPUTES BY A NEUTRAL
ADMINISTRATIVE TRIBUNAL, THE "COURT OF INDUSTRIAL RELATIONS."  PURSUANT
TO ITS JURISDICTION TO INVESTIGATE AND PERHAPS IMPROVE LABOR CONDITIONS
IN THE COAL MINING INDUSTRY, THE "COURT" SUBPOENAED UNION LEADERS TO
APPEAR AND TESTIFY.  IN ADDITION, THE STATE OBTAINED AN INJUNCTION TO
PREVENT A STRIKE WHILE THE MATTER WAS BEFORE THE "COURT."  THE UNION
LEADERS DISOBEYED BOTH THE SUBPOENA AND THE INJUNCTION, AND SOUGHT TO
CHALLENGE THE CONSTITUTIONALITY OF THE INDUSTRIAL RELATIONS ACT IN THE
ENSUING CONTEMPT PROCEEDING.  THE KANSAS SUPREME COURT HELD THAT THE
CONSTITUTIONALITY OF THE ACT COULD NOT BE CHALLENGED IN A CONTEMPT
PROCEEDING, AND THIS COURT UPHELD THAT DETERMINATION. 

INSOFAR AS HOWAT V. KANSAS MIGHT BE INTERPRETED TO APPROVE AN
ABSOLUTE RULE THAT ANY VIOLATION OF A VOID COURT ORDER IS PUNISHABLE AS
CONTEMPT, IT HAS BEEN GREATLY MODIFIED BY LATER DECISIONS.  IN IN RE
GREEN, 369 U.S. 689 (1962), WE REVERSED A CONVICTION FOR CONTEMPT OF A
STATE INJUNCTION FORBIDDING LABOR PICKETING BECAUSE THE PETITIONER WAS
NOT ALLOWED TO PRESENT EVIDENCE THAT THE LABOR DISPUTE WAS ARGUABLY
SUBJECT TO THE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD AND
HENCE NOT SUBJECT TO STATE REGULATION.  IF AN INJUNCTION CAN BE
CHALLENGED ON THE GROUND THAT IT DEALS WITH A MATTER ARGUABLY SUBJECT
TO THE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD, THEN A
FORTIORI IT CAN BE CHALLENGED ON FIRST AMENDMENT GROUNDS.  (FN9) 

IT IS NOT NECESSARY TO QUESTION THE CONTINUING VALIDITY OF THE
HOLDING IN HOWAT V. KANSAS, HOWEVER, TO DEMONSTRATE THAT NEITHER IT NOR
THE MINE WORKERS (FN10) CASE SUPPORTS THE HOLDING OF THE MAJORITY IN
THIS CASE.  IN HOWAT THE SUBPOENA AND INJUNCTION WERE ISSUED TO ENABLE
THE KANSAS COURT OF INDUSTRIAL RELATIONS TO DETERMINE AN UNDERLYING
LABOR DISPUTE.  IN THE MINE WORKERS CASE, THE DISTRICT COURT ISSUED A
TEMPORARY ANTISTRIKE INJUNCTION TO PRESERVE EXISTING CONDITIONS DURING
THE TIME IT TOOK TO DECIDE WHETHER IT HAD AUTHORITY TO GRANT THE
GOVERNMENT RELIEF IN A COMPLEX AND DIFFICULT ACTION OF ENORMOUS
IMPORTANCE TO THE NATIONAL ECONOMY.  IN BOTH CASES THE ORDERS WERE OF
QUESTIONABLE LEGALITY, BUT IN BOTH CASES THEY WERE REASONABLY NECESSARY
TO ENABLE THE COURT OR ADMINISTRATIVE TRIBUNAL TO DECIDE AN UNDERLYING
CONTROVERSY OF CONSIDERABLE IMPORTANCE BEFORE IT AT THE TIME.  THIS
CASE INVOLVES AN ENTIRELY DIFFERENT SITUATION.  THE ALABAMA CIRCUIT
COURT DID NOT ISSUE THIS TEMPORARY INJUNCTION TO PRESERVE EXISTING
CONDITIONS WHILE IT PROCEEDED TO DECIDE SOME UNDERLYING DISPUTE.  THERE
WAS NO UNDERLYING DISPUTE BEFORE IT, AND THE COURT IN PRACTICAL EFFECT
MERELY ADDED A JUDICIAL SIGNATURE TO A PRE-EXISTING CRIMINAL
ORDINANCE.  JUST AS THE COURT HAD NO NEED TO ISSUE THE INJUNCTION TO
PRESERVE ITS ABILITY TO DECIDE SOME UNDERLYING DISPUTE, THE CITY HAD NO
NEED OF AN INJUNCTION TO IMPOSE A CRIMINAL PENALTY FOR DEMONSTRATING ON
THE STREETS WITHOUT A PERMIT.  THE ORDINANCE ALREADY ACCOMPLISHED
THAT.  IN POINT OF FACT, THERE IS ONLY ONE APPARENT REASON WHY THE CITY
SOUGHT THIS INJUNCTION AND WHY THE COURT ISSUED IT:  TO MAKE IT
POSSIBLE TO PUNISH PETITIONERS FOR CONTEMPT RATHER THAN FOR VIOLATING
THE ORDINANCE, AND THUS TO IMMUNIZE THE UNCONSTITUTIONAL STATUTE AND
ITS UNCONSTITUTIONAL APPLICATION FROM ANY ATTACK.  I REGRET THAT THIS
STRATEGY HAS BEEN SO SUCCESSFUL. 

IT IS NOT NECESSARY IN THIS CASE TO DECIDE PRECISELY WHAT LIMITS
SHOULD BE SET TO THE MINE WORKERS DOCTRINE IN CASES INVOLVING
VIOLATIONS OF THE FIRST AMENDMENT.  WHATEVER THE SCOPE OF THAT
DOCTRINE, IT PLAINLY WAS NOT INTENDED TO GIVE A STATE THE POWER TO
NULLIFY THE UNITED STATES CONSTITUTION BY THE SIMPLE PROCESS OF
INCORPORATING ITS UNCONSTITUTIONAL CRIMINAL STATUTES INTO JUDICIAL
DECREES.  I RESPECTFULLY DISSENT. 

FN1  THE UNCONTRADICTED TESTIMONY RELATING TO THE REBUFFS OF
PETITIONERS' ATTEMPTS TO OBTAIN A PERMIT IS SET OUT IN FOOTNOTES 9 AND
10 OF THE MAJORITY OPINION.  PETITIONERS WERE PREVENTED BY A RULING OF
THE TRIAL COURT FROM INTRODUCING FURTHER PROOF OF THE INTRANSIGENCE OF
COMMISSIONER CONNOR AND THE OTHER CITY OFFICIALS TOWARD ANY EFFORT BY
NEGROES TO PROTEST SEGREGATION AND RACIAL INJUSTICE.  THE ATTITUDE OF
THE CITY ADMINISTRATION IN GENERAL AND OF ITS PUBLIC SAFETY
COMMISSIONER IN PARTICULAR ARE A MATTER OF PUBLIC RECORD, OF COURSE,
AND ARE FAMILIAR TO THIS COURT FROM PREVIOUS LITIGATION.  SEE
SHUTTLESWORTH V. CITY OF BIRMINGHAM, 382 U.S. 87 (1965); SHUTTLESWORTH
V. CITY OF BIRMINGHAM, 376 U.S. 339 (1964); SHUTTLESWORTH V. CITY OF
BIRMINGHAM, 373 U.S. 262 (1963); GOBER V. CITY OF BIRMINGHAM, 373 U.S.
374 (1963); IN RE SHUTTLESWORTH, 369 U.S. 35 (1962).  THE UNITED STATES
COMMISSION ON CIVIL RIGHTS FOUND CONTINUING ABUSE OF CIVIL RIGHTS
PROTESTERS BY THE BIRMINGHAM POLICE, INCLUDING USE OF DOGS, CLUBS, AND
FIREHOSES.  1963 REPORT OF THE UNITED STATES COMMISSION ON CIVIL RIGHTS
114 (GOVERNMENT PRINTING OFFICE, 1963).  COMMISSIONER EUGENE "BULL"
CONNOR, A SELF-PROCLAIMED WHITE SUPREMACIST (SEE CONGRESS AND THE
NATION 1945-1964:  A REVIEW OF GOVERNMENT AND POLITICS IN THE POSTWAR
YEARS 1604 (CONGRESSIONAL QUARTERLY SERVICE, 1965)), MADE NO SECRET OF
HIS PERSONAL ATTITUDE TOWARD THE RIGHTS OF NEGROES AND THE DECISIONS OF
THIS COURT.  HE VOWED THAT RACIAL INTEGRATION WOULD NEVER COME TO
BIRMINGHAM, AND WORE A BUTTON INSCRIBED "NEVER" TO ADVERTISE THAT VOW. 
YET THE COURT INDULGES IN SPECULATION THAT THESE CIVIL RIGHTS
PROTESTERS MIGHT HAVE OBTAINED A PERMIT FROM THIS CITY AND THIS MAN HAD
THEY MADE ENOUGH REPEATED APPLICATIONS. 

FN2  SEE UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 86-94
(1947). 

FN3  THE OPINION DOES SPECULATE THAT THE ALABAMA COURTS MIGHT HAVE
SAVED THE ORDINANCE BY GIVING THE LICENSING AUTHORITY GRANTED IN THE
ORDINANCE "A NARROW AND PRECISE SCOPE," AS DID THE NEW HAMPSHIRE COURTS
IN COX V. NEW HAMPSHIRE, 312 U.S. 569 (1941), AND POULOS V. NEW
HAMPSHIRE, 345 U.S. 395 (1953).  THIS SUGGESTION IGNORES THE FACT THAT
THE STATUTE IN COX AND THE ORDINANCE IN POULOS MERELY PROVIDED THAT
LICENSES FOR PARADES AND CERTAIN OTHER GATHERINGS MUST BE OBTAINED. 
THEY DID NOT AUTHORIZE LOCAL OFFICIALS TO DETERMINE WHETHER THE
PROPOSED PARADE WAS CONSISTENT WITH "THE PUBLIC WELFARE, PEACE, SAFETY,
HEALTH, DECENCY, GOOD ORDER, MORALS OR CONVENIENCE," AS DOES THE
BIRMINGHAM ORDINANCE INVOLVED IN THIS CASE, AND SO IT WAS PERFECTLY
CONSISTENT WITH THE STATUTORY LANGUAGE FOR THE NEW HAMPSHIRE SUPREME
COURT TO HOLD THAT UNDER THE STATUTE AND ORDINANCE PARADE APPLICANTS
HAD A RIGHT TO A LICENSE "WITH REGARD ONLY TO CONSIDERATIONS OF TIME,
PLACE AND MANNER SO AS TO CONSERVE THE PUBLIC CONVENIENCE."  312 U.S.,
AT 575-576.  BY CONTRAST, THE ALABAMA COURTS COULD ONLY GIVE A NARROW
AND PRECISE SCOPE TO THE BIRMINGHAM ORDINANCE BY REPEALING SOME OF ITS
LANGUAGE. 

FN4  STAUB V. CITY OF BAXLEY, 355 U.S. 313 (1958); KUNZ V. NEW YORK,
340 U.S. 290 (1951); NIEMOTKO V. MARYLAND, 340 U.S. 268 (1951);
CANTWELL V. CONNECTICUT, 310 U.S. 296 (1940).  "I BELIEVE THAT THE
FIRST AND FOURTEENTH AMENDMENTS REQUIRE THAT IF THE STREETS OF A TOWN
ARE OPEN TO SOME VIEWS, THEY MUST BE OPEN TO ALL."  COX V. LOUISIANA,
379 U.S. 536, 580 (1965) (OPINION OF MR. JUSTICE BLACK). 

FN5  NIEMOTKO V. MARYLAND, SUPRA. 

FN6  THE NORRIS-LAGUARDIA ACT, 1932, 47 STAT. 70, 29 U.S.C. SECS 101
115. 

FN7  FRANKFURTER & GREENE, THE LABOR INJUNCTION 47-81 (1930); COX &
BOK, CASES AND MATERIALS ON LABOR LAW 101-107 (1962). 

FN8  "THE HISTORY OF THE LABOR INJUNCTION IN ACTION PUTS SOME MATTERS
BEYOND QUESTION.  IN LARGE PART, DISSATISFACTION AND RESENTMENT ARE
CAUSED, FIRST, BY THE REFUSAL OF COURTS TO RECOGNIZE THAT BREACHES OF
THE PEACE MAY BE REDRESSED THROUGH CRIMINAL PROSECUTION AND CIVIL
ACTION FOR DAMAGES, AND, SECOND, BY THE EXPANSION OF A SIMPLE, JUDICIAL
DEVICE TO AN ENVELOPING CODE OF PROHIBITED CONDUCT, ABSORBING, EN
MASSE, EXECUTIVE AND POLICE FUNCTIONS AND AFFECTING THE LIVELIHOOD, AND
EVEN LIVES, OF MULTITUDES.  ESPECIALLY THOSE ZEALOUS FOR THE UNIMPAIRED
PRESTIGE OF OUR COURTS HAVE OBSERVED HOW THE ADMINISTRATION OF LAW BY
DECREES WHICH THROUGH VAST AND VAGUE PHRASES SURMOUNT LAW, UNDERMINES
THE ESTEEM OF COURTS UPON WHICH OUR REIGN OF LAW DEPENDS.  NOT
GOVERNMENT, BUT 'GOVERNMENT BY INJUNCTION,' CHARACTERIZED BY THE
CONSEQUENCES OF A CRIMINAL PROSECUTION WITHOUT ITS SAFEGUARDS, HAS BEEN
CHALLENGED."  FRANKFURTER & GREENE, SUPRA, AT 200. 

FN9  THE ATTEMPT IN FOOTNOTE 6 OF THE MAJORITY OPINION TO DISTINGUISH
IN RE GREEN IS NOTHING BUT AN ATTEMPT TO ALTER THE HOLDING OF THAT
CASE.  THE OPINION OF THE COURT STATES FLATLY THAT "A STATE COURT IS
WITHOUT POWER TO HOLD ONE IN CONTEMPT FOR VIOLATING AN INJUNCTION THAT
THE STATE COURT HAD NO POWER TO ENTER BY REASON OF FEDERAL
PREEMPTION."  369 U.S., AT 692 (FOOTNOTE OMITTED).  THE ALLEGED
CIRCUMSTANCE THAT THE COURT ISSUING THE INJUNCTION HAD AGREED TO ITS
VIOLATION AS AN APPROPRIATE MEANS OF TESTING ITS VALIDITY WAS
CONSIDERED ONLY IN A CONCURRING OPINION.  ALTHOUGH THE PETITIONER IN
GREEN HAD ATTEMPTED TO CHALLENGE THE ORDER IN COURT BEFORE VIOLATING
IT, WE DID NOT RELY ON THAT FACT IN HOLDING THAT THE ORDER WAS VOID. 
NOR IS IT CLEAR TO ME WHY THE COURT REGARDS THIS FACT AS IMPORTANT,
UNLESS IT MEANS TO IMPLY THAT THE PETITIONERS IN THIS CASE WOULD HAVE
BEEN FREE TO VIOLATE THE COURT ORDER IF THEY HAD FIRST MADE A MOTION TO
DISSOLVE IN THE TRIAL COURT. 

FN10  UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258 (1947). 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN, AND MR. JUSTICE FORTAS CONCUR, DISSENTING. 

WE SIT AS A COURT OF LAW FUNCTIONING PRIMARILY AS A REFEREE IN THE
FEDERAL SYSTEM.  OUR FUNCTION IN CASES COMING TO US FROM STATE COURTS
IS TO MAKE SURE THAT STATE TRIBUNALS AND AGENCIES WORK WITHIN THE
LIMITS OF THE CONSTITUTION.  SINCE THE ALABAMA COURTS HAVE FLOUTED THE
FIRST AMENDMENT, I WOULD REVERSE THE JUDGMENT. 

PICKETING AND PARADING ARE METHODS OF EXPRESSION PROTECTED BY THE
FIRST AMENDMENT AGAINST BOTH STATE AND FEDERAL ABRIDGMENT.  EDWARDS V.
SOUTH CAROLINA, 372 U.S. 229, 235-236; COX V. LOUISIANA, 379 U.S. 536,
546-548.  SINCE THEY INVOLVE MORE THAN SPEECH ITSELF AND IMPLICATE
STREET TRAFFIC, THE ACCOMMODATION OF THE PUBLIC AND THE LIKE, THEY MAY
BE REGULATED AS TO THE TIMES AND PLACES OF THE DEMONSTRATIONS. 
SCHNEIDER V. STATE, 308 U.S. 147, 160-161; COX V. NEW HAMPSHIRE, 312
U.S. 569; POULOS V. NEW HAMPSHIRE, 345 U.S. 395, 405-406.  BUT A STATE
CANNOT DENY THE RIGHT TO USE STREETS OR PARKS OR OTHER PUBLIC GROUNDS
FOR THE PURPOSE OF PETITIONING FOR THE REDRESS OF GRIEVANCES.  SEE
HAGUE V. C.I.O., 307 U.S. 496, 515-516; SCHNEIDER V. STATE, 308 U.S.
147, 163; COX V. NEW HAMPSHIRE, 312 U.S. 569, 574; VALENTINE V.
CHRESTENSEN, 316 U.S. 52, 54; JAMISON V. TEXAS, 318 U.S. 413, 415-416. 

THE RICH CAN BUY ADVERTISEMENTS IN NEWSPAPERS, PURCHASE RADIO OR
TELEVISION TIME, AND RENT BILLBOARD SPACE.  THOSE LESS AFFLUENT ARE
RESTRICTED TO THE USE OF HANDBILLS (MURDOCK V. PENNSYLVANIA, 319 U.S.
105, 108) OR PETITIONS, OR PARADES, OR MASS MEETINGS.  THIS "RIGHT OF
THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A
REDRESS OF GRIEVANCES," GUARANTEED BY THE FIRST AMENDMENT, APPLICABLE
TO THE STATES BY REASON OF THE FOURTEENTH (EDWARDS V. SOUTH CAROLINA,
SUPRA, AT 235), WAS FLOUTED HERE. 

THE EVIDENCE SHOWS THAT A PERMIT WAS APPLIED FOR.  MRS. LOLA
HENDRICKS, A MEMBER OF THE ALABAMA CHRISTIAN MOVEMENT FOR HUMAN RIGHTS,
AUTHORIZED BY ITS PRESIDENT, REVEREND SHUTTLESWORTH, ON APRIL 3, WENT
TO THE POLICE DEPARTMENT AND ASKED TO SEE THE PERSON IN CHARGE OF
ISSUING PERMITS.  SHE THEN WENT TO THE OFFICE OF COMMISSIONER EUGENE
"BULL" CONNOR AND TOLD HIM THAT "WE CAME UP TO APPLY OR SEE ABOUT
GETTING A PERMIT FOR PICKETING, PARADING, DEMONSTRATING."  SHE ASKED
CONNOR FOR THE PERMIT, "ASKED IF HE COULD ISSUE THE PERMIT, OR OTHER
PERSONS WHO WOULD REFER ME TO, PERSONS WHO WOULD ISSUE A PERMIT." 
COMMISSIONER CONNOR REPLIED, "NO, YOU WILL NOT GET A PERMIT IN
BIRMINGHAM, ALABAMA TO PICKET.  I WILL PICKET YOU OVER TO THE CITY
JAIL."  ON APRIL 5, PETITIONER SHUTTLESWORTH SENT A TELEGRAM TO
COMMISSIONER CONNOR REQUESTING A PERMIT TO PICKET ON DESIGNATED
SIDEWALKS ON APRIL 5 AND 6.  THE MESSAGE STATED THAT "THE NORMAL RULES
OF PICKETING" WOULD BE OBSERVED.  THE SAME DAY, CONNOR WIRED BACK A
REPLY STATING THAT HE COULD NOT INDIVIDUALLY GRANT A PERMIT, THAT IT
WAS THE RESPONSIBILITY OF THE ENTIRE COMMISSION AND THAT HE "INSISTED
THAT YOU AND YOUR PEOPLE DO NOT START ANY PICKETING ON THE STREETS IN
BIRMINGHAM, ALABAMA."  PETITIONERS' EFFORTS TO SHOW THAT THE CITY
COMMISSION DID NOT GRANT PERMITS, BUT THAT THEY WERE GRANTED BY THE
CITY CLERK AT THE REQUEST OF THE TRAFFIC DIVISION WERE CUT OFF.    THE
RECORD SHOWS THAT PETITIONERS DID NOT DELIBERATELY ATTEMPT TO
CIRCUMVENT THE PERMIT REQUIREMENT.  RATHER THEY DILIGENTLY ATTEMPTED TO
OBTAIN A PERMIT AND WERE RUDELY REBUFFED AND THEN REASONABLY CONCLUDED
THAT ANY FURTHER ATTEMPTS WOULD BE FRUITLESS. 

THE RIGHT TO DEFY AN UNCONSTITUTIONAL STATUTE IS BASIC IN OUR
SCHEME.  EVEN WHEN AN ORDINANCE REQUIRES A PERMIT TO MAKE A SPEECH, TO
DELIVER A SERMON, TO PICKET, TO PARADE, OR TO ASSEMBLE, IT NEED NOT BE
HONORED WHEN IT IS INVALID ON ITS FACE.  LOVELL V. GRIFFIN, 303 U.S.
444, 452-453; THORNHILL V. ALABAMA, 310 U.S. 88, 97; JONES V. OPELIKA,
316 U.S. 584, 602, ADOPTED PER CURIAM ON REHEARING, 319 U.S. 103, 104;
CANTWELL V. CONNECTICUT, 310 U.S. 296, 305-306; THOMAS V. COLLINS, 323
U.S. 516; STAUB V. CITY OF BAXLEY, 355 U.S. 313, 319. 

BY LIKE REASON, WHERE A PERMIT HAS BEEN ARBITRARILY DENIED, ONE NEED
NOT PURSUE THE LONG AND EXPENSIVE ROUTE TO THIS COURT TO OBTAIN A
REMEDY.  THE REASON IS THE SAME IN BOTH CASES.  FOR IF A PERSON MUST
PURSUE HIS JUDICIAL REMEDY BEFORE HE MAY SPEAK, PARADE, OR ASSEMBLE,
THE OCCASION WHEN PROTEST IS DESIRED OR NEEDED WILL HAVE BECOME HISTORY
AND ANY LATER SPEECH, PARADE, OR ASSEMBLY WILL BE FUTILE OR POINTLESS. 

HOWAT V. KANSAS, 258 U.S. 181, STATES THE GENERAL RULE THAT COURT
INJUNCTIONS ARE TO BE OBEYED UNTIL ERROR IS FOUND BY NORMAL AND ORDERLY
REVIEW PROCEDURES.  SEE UNITED STATES V. MINE WORKERS, 330 U.S. 258,
293-294.  BUT THERE IS AN EXCEPTION WHERE "THE QUESTION OF
JURISDICTION" IS "FRIVOLOUS AND NOT SUBSTANTIAL."  ID., AT 293. 
MOREOVER, A STATE COURT INJUNCTION IS NOT PER SE SACRED WHERE FEDERAL
CONSTITUTIONAL QUESTIONS ARE INVOLVED.  IN RE GREEN, 369 U.S. 689, HELD
THAT CONTEMPT COULD NOT BE IMPOSED WITHOUT A HEARING WHERE THE STATE
DECREE BORDERED THE FEDERAL DOMAIN IN LABOR RELATIONS AND ONLY A
HEARING COULD DETERMINE WHETHER THERE WAS FEDERAL PRE-EMPTION.  IN THE
PRESENT CASE THE COLLISION BETWEEN THIS STATE COURT DECREE AND THE
FIRST AMENDMENT IS SO OBVIOUS THAT NO HEARING IS NEEDED TO DETERMINE
THE ISSUE. 

AS ALREADY RELATED, PETITIONERS MADE TWO APPLICATIONS TO COMMISSIONER
"BULL" CONNOR FOR A PERMIT AND WERE TURNED DOWN.  AT THE TRIAL, COUNSEL
FOR PETITIONERS OFFERED TO PROVE THROUGH THE CITY CLERK THAT THE
COMMISSION NEVER HAS GRANTED A PERMIT, THE ISSUING AUTHORITY BEING THE
CITY CLERK WHO ACTS AT THE REQUEST OF THE TRAFFIC DIVISION.  BUT HE WAS
NOT ALLOWED TO ANSWER THE QUESTION.  AND WHEN ASKED TO DESCRIBE THE
PRACTICE FOR GRANTING PERMITS AN OBJECTION WAS RAISED AND SUSTAINED. 

IT IS CLEAR THAT THERE ARE NO PUBLISHED RULES OR REGULATIONS
GOVERNING THE MANNER OF APPLYING FOR PERMITS, AND IT IS CLEAR FROM THE
RECORD THAT SOME PERMITS ARE ISSUED.  ONE WHO READS THIS RECORD WILL
HAVE, I THINK, THE ABIDING CONVICTION THAT THESE PEOPLE WERE DENIED A
PERMIT SOLELY BECAUSE THEIR SKIN WAS NOT OF THE RIGHT COLOR AND THEIR
CAUSE WAS NOT POPULAR. 

A COURT DOES NOT HAVE JURISDICTION TO DO WHAT A CITY OR OTHER AGENCY
OF A STATE LACKS JURISDICTION TO DO.  THE COMMAND OF THE FOURTEENTH
AMENDMENT, THROUGH WHICH THE FIRST AMENDMENT IS MADE APPLICABLE TO THE
STATES, IS THAT NO "STATE" SHALL DEPRIVE ANY PERSON OF "LIBERTY"
WITHOUT DUE PROCESS OF LAW.  THE DECREE OF A STATE COURT IS "STATE"
ACTION IN THE CONSTITUTIONAL SENSE (SHELLEY V. KRAEMER, 334 U.S. 1, 14
18), AS MUCH AS THE ACTION OF THE STATE POLICE, THE STATE PROSECUTOR,
THE STATE LEGISLATURE, OR THE GOVERNOR HIMSELF.  AN ORDINANCE -
UNCONSTITUTIONAL ON ITS FACE OR PATENTLY UNCONSTITUTIONAL AS APPLIED -
IS NOT MADE SACRED BY AN UNCONSTITUTIONAL INJUNCTION THAT ENFORCES IT.
IT CAN AND SHOULD BE FLOUTED IN THE MANNER OF THE ORDINANCE ITSELF. 
COURTS AS WELL AS CITIZENS ARE NOT FREE "TO IGNORE ALL THE PROCEDURES
OF THE LAW," TO USE THE COURT'S LANGUAGE.  THE "CONSTITUTIONAL FREEDOM"
OF WHICH THE COURT SPEAKS CAN BE WON ONLY IF JUDGES HONOR THE
CONSTITUTION. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE FORTAS JOIN, DISSENTING. 

UNDER COVER OF EXHORTATION THAT THE NEGRO EXERCISE "RESPECT FOR
JUDICIAL PROCESS," THE COURT EMPTIES THE SUPREMACY CLAUSE OF ITS
PRIMACY BY ELEVATING A STATE RULE OF JUDICIAL ADMINISTRATION ABOVE THE
RIGHT OF FREE EXPRESSION GUARANTEED BY THE FEDERAL CONSTITUTION.  AND
THE COURT DOES SO BY LETTING LOOSE A DEVASTATINGLY DESTRUCTIVE WEAPON
FOR SUPPRESSION OF CHERISHED FREEDOMS HERETOFORE BELIEVED INDISPENSABLE
TO MAINTENANCE OF OUR FREE SOCIETY.  I CANNOT BELIEVE THAT THIS
DISTORTION IN THE HIERARCHY OF VALUES UPON WHICH OUR SOCIETY HAS BEEN
AND MUST BE ORDERED CAN HAVE ANY SIGNIFICANCE BEYOND ITS FUNCTION AS A
VEHICLE TO AFFIRM THESE CONTEMPT CONVICTIONS. 

                                             I. 

PETITIONERS ARE EIGHT NEGRO MINISTERS.  THEY WERE CONVICTED OF
CRIMINAL CONTEMPT FOR VIOLATION OF AN EX PARTE INJUNCTION ISSUED BY THE
CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA, BY ENGAGING IN STREET
PARADES WITHOUT A MUNICIPAL PERMIT ON GOOD FRIDAY AND EASTER SUNDAY
1963.  THESE WERE THE DAYS WHEN BIRMINGHAM WAS A WORLD SYMBOL OF
IMPLACABLE OFFICIAL HOSTILITY TO NEGRO EFFORTS TO GAIN CIVIL RIGHTS,
HOWEVER PEACEFULLY SOUGHT.  THE PURPOSE OF THESE DEMONSTRATIONS WAS
PEACEABLY TO PUBLICIZE AND DRAMATIZE THE CIVIL RIGHTS GRIEVANCES OF THE
NEGRO PEOPLE.  THE UNDERLYING PERMIT ORDINANCE MADE IT UNLAWFUL "TO
ORGANIZE OR HOLD  ...  OR TO TAKE PART OR PARTICIPATE IN, ANY PARADE OR
PROCESSION OR OTHER PUBLIC DEMONSTRATION ON THE STREETS  ...  " WITHOUT
A PERMIT.  A PERMIT WAS ISSUABLE BY THE CITY COMMISSION "UNLESS IN ITS
JUDGMENT THE PUBLIC WELFARE, PEACE, SAFETY, HEALTH, DECENCY, GOOD
ORDER, MORALS OR CONVENIENCE REQUIRE THAT IT BE REFUSED." 

ATTEMPTS BY PETITIONERS AT THE CONTEMPT HEARING TO SHOW THAT THEY
TRIED TO OBTAIN A PERMIT BUT WERE RUDELY REBUFFED BY CITY OFFICIALS
WERE ABORTED WHEN THE TRIAL COURT SUSTAINED OBJECTIONS TO THE
TESTIMONY.  IT DID APPEAR, HOWEVER, THAT ON APRIL 3, A MEMBER OF THE
ALABAMA CHRISTIAN MOVEMENT FOR HUMAN RIGHTS (ACMHR) WAS SENT BY ONE OF
THE PETITIONERS, THE REVEREND MR. SHUTTLESWORTH, TO BIRMINGHAM CITY
HALL TO INQUIRE ABOUT PERMITS FOR FUTURE DEMONSTRATIONS.  THE MEMBER
STATED AT TRIAL: 

"I ASKED POLICE COMMISSIONER CONNOR FOR THE PERMIT, AND ASKED IF HE
COULD ISSUE THE PERMIT, OR OTHER PERSONS WHO WOULD REFER ME TO, PERSONS
WHO WOULD ISSUE A PERMIT.  HE SAID, 'NO, YOU WILL NOT GET A PERMIT IN
BIRMINGHAM, ALABAMA TO PICKET.  I WILL PICKET YOU OVER TO THE CITY
JAIL,' AND HE REPEATED THAT TWICE." 

TWO DAYS LATER THE REVEREND MR. SHUTTLESWORTH SENT A TELEGRAM TO
POLICE COMMISSIONER CONNOR REQUESTING A PERMIT ON BEHALF OF ACMHR TO
PICKET ON GIVEN DATES "AGAINST THE INJUSTICES OF SEGREGATION AND
DISCRIMINATION."  CONNOR REPLIED THAT THE PERMIT COULD BE GRANTED ONLY
BY THE FULL COMMISSION AND STATED, "I INSIST THAT YOU AND YOUR PEOPLE
DO NOT START ANY PICKETING ON THE STREETS IN BIRMINGHAM, ALABAMA." 
PETITIONERS WERE ALSO FRUSTRATED IN THEIR ATTEMPTS AT THE CONTEMPT
HEARING TO SHOW THAT PERMITS WERE GRANTED, NOT BY THE COMMISSION, BUT
BY THE CITY CLERK AT THE REQUEST OF THE TRAFFIC DEPARTMENT, AND THAT
THEY WERE ISSUED IN A DISCRIMINATORY MANNER. 

ON APRIL 6-7 AND APRIL 9-10, NEGROES WERE ARRESTED FOR PARADING
WITHOUT A PERMIT.  LATE IN THE NIGHT OF APRIL 10, THE CITY REQUESTED
AND IMMEDIATELY OBTAINED AN EX PARTE INJUNCTION WITHOUT PRIOR NOTICE TO
PETITIONERS.  NOTICE OF THE ISSUANCE WAS GIVEN TO FIVE OF THE
PETITIONERS ON APRIL 11.  (FN1)  THE DECREE TRACKED THE WORDING OF THE
PERMIT ORDINANCE, EXCEPT THAT IT WAS STILL BROADER AND MORE PERVASIVE. 
IT ENJOINED: 

"  ...  ENGAGING IN, SPONSORING, INCITING OR ENCOURAGING MASS STREET
PARADES OR MASS PROCESSIONS OR LIKE DEMONSTRATIONS WITHOUT A PERMIT,
TRESPASS ON PRIVATE PROPERTY AFTER BEING WARNED TO LEAVE THE PREMISES
BY THE OWNER OR PERSON IN POSSESSION OF SAID PRIVATE PROPERTY,
CONGREGATING ON THE STREET OR PUBLIC PLACES INTO MOBS, AND UNLAWFULLY
PICKETING BUSINESS ESTABLISHMENTS OR PUBLIC BUILDINGS IN THE CITY OF
BIRMINGHAM, JEFFERSON COUNTY, STATE OF ALABAMA OR PERFORMING ACTS
CALCULATED TO CAUSE BREACHES OF THE PEACE IN THE CITY OF BIRMINGHAM,
JEFFERSON COUNTY, IN THE STATE OF ALABAMA OR FROM CONSPIRING TO ENGAGE
IN UNLAWFUL STREET PARADES, UNLAWFUL PROCESSIONS, UNLAWFUL
DEMONSTRATIONS, UNLAWFUL BOYCOTTS, UNLAWFUL TRESPASSES, AND UNLAWFUL
PICKETING OR OTHER LIKE UNLAWFUL CONDUCT OR FROM VIOLATING THE
ORDINANCES OF THE CITY OF BIRMINGHAM AND THE STATUTES OF THE STATE OF
ALABAMA OR FROM DOING ANY ACTS DESIGNED TO CONSUMMATE CONSPIRACIES TO
ENGAGE IN SAID UNLAWFUL ACTS OF PARADING, DEMONSTRATING, BOYCOTTING,
TRESPASSING AND PICKETING OR OTHER UNLAWFUL ACTS, OR FROM ENGAGING IN
ACTS AND CONDUCT CUSTOMARILY KNOWN AS 'KNEEL-INS' IN CHURCHES IN
VIOLATION OF THE WISHES AND DESIRES OF SAID CHURCHES  ...  ." 

SEVERAL OF THE NEGRO MINISTERS ISSUED STATEMENTS THAT THEY WOULD
REFUSE TO COMPLY WITH WHAT THEY BELIEVED TO BE, AND IS INDEED, A
BLATANTLY UNCONSTITUTIONAL RESTRAINING ORDER. 

ON APRIL 12, GOOD FRIDAY, A PLANNED MARCH TOOK PLACE, BEGINNING AT A
CHURCH IN THE NEGRO SECTION OF THE CITY AND CONTINUING TO CITY HALL. 
THE POLICE, WHO WERE NOTIFIED IN ADVANCE BY ONE OF THE PETITIONERS OF
THE TIME AND ROUTE OF THE MARCH, BLOCKED THE STREETS TO TRAFFIC IN THE
AREA OF THE CHURCH AND EXCLUDED WHITE PERSONS FROM THE NEGRO AREA. 
APPROXIMATELY 50 PERSONS MARCHED, LED BY THREE PETITIONERS, MARTIN
LUTHER KING, RALPH ABERNATHY, AND SHUTTLESWORTH.  A LARGE CROWD OF
NEGRO ONLOOKERS WHICH HAD GATHERED OUTSIDE THE CHURCH REMAINED SEPARATE
FROM THE PROCESSION.  A FEW BLOCKS FROM THE CHURCH THE POLICE STOPPED
THE PROCESSION AND ARRESTED, AND JAILED, MOST OF THE MARCHERS,
INCLUDING THE THREE LEADERS. 

ON EASTER SUNDAY ANOTHER PLANNED DEMONSTRATION WAS CONDUCTED.  THE
POLICE AGAIN WERE GIVEN ADVANCE NOTICE, AND AGAIN BLOCKED THE STREETS
TO TRAFFIC AND WHITE PERSONS IN THE VICINITY OF THE CHURCH.  SEVERAL
HUNDRED PERSONS WERE ASSEMBLED AT THE CHURCH.  APPROXIMATELY 50 PERSONS
WHO EMERGED FROM THE CHURCH BEGAN WALKING PEACEABLY.  SEVERAL BLOCKS
FROM THE CHURCH THE PROCESSION WAS STOPPED, AS ON GOOD FRIDAY, AND
ABOUT 20 PERSONS, INCLUDING FIVE PETITIONERS, WERE ARRESTED.  THE
PARTICIPANTS IN BOTH PARADES WERE IN EVERY WAY ORDERLY; THE ONLY
EPISODE OF VIOLENCE, ACCORDING TO A POLICE INSPECTOR, WAS ROCK THROWING
BY THREE ONLOOKERS ON EASTER SUNDAY, AFTER PETITIONERS WERE ARRESTED;
THE THREE ROCK THROWERS WERE IMMEDIATELY TAKEN INTO CUSTODY BY THE
POLICE. 

ON MONDAY, APRIL 15, PETITIONERS MOVED TO DISSOLVE THE INJUNCTION,
AND THE CITY INITIATED CRIMINAL CONTEMPT PROCEEDINGS AGAINST
PETITIONERS.  AT THE HEARING, HELD A WEEK LATER, THE JEFFERSON COUNTY
COURT CONSIDERED THE CONTEMPT CHARGE FIRST.  PETITIONERS URGED THAT THE
INJUNCTION AND UNDERLYING PERMIT ORDINANCE WERE IMPERMISSIBLY VAGUE
PRIOR RESTRAINTS ON EXERCISE OF FIRST AMENDMENT RIGHTS AND THAT THE
ORDINANCE HAD BEEN DISCRIMINATORILY APPLIED.  THE COURT, HOWEVER,
LIMITED EVIDENCE PRIMARILY TO TWO QUESTIONS: NOTICE OF AND VIOLATION OF
THE INJUNCTION.  THE COURT STATED THAT "THE VALIDITY OF ITS INJUNCTION
ORDER STANDS UPON ITS PRIMA FACIE AUTHORITY TO EXECUTE THE SAME." 
PETITIONERS WERE FOUND GUILTY OF CRIMINAL CONTEMPT AND SENTENCED TO
FIVE DAYS IN JAIL AND A $50 FINE.  THE ALABAMA SUPREME COURT, ADOPTING
THE REASONING OF UNITED STATES V. MINE WORKERS, 330 U.S. 258,
APPLICABLE TO FEDERAL COURT ORDERS, AFFIRMED, HOLDING THAT THE VALIDITY
OF THE INJUNCTION AND UNDERLYING PERMIT ORDINANCE COULD NOT BE
CHALLENGED IN A CONTEMPT PROCEEDING.  279 ALA. 53, 181 SO. 2D 493. 

         II. 

THE HOLDING OF THE ALABAMA SUPREME COURT, AND THE AFFIRMANCE OF ITS
DECISION BY THIS COURT, REST ON THE ASSUMPTION THAT PETITIONERS MAY BE
CRIMINALLY PUNISHED ALTHOUGH THE PARADE ORDINANCE AND THE INJUNCTION BE
UNCONSTITUTIONAL ON THEIR FACES AS IN VIOLATION OF THE FIRST AMENDMENT,
AND EVEN IF THE PARADE ORDINANCE WAS DISCRIMINATORILY APPLIED.  IT MUST
THEREFORE BE ASSUMED, FOR PURPOSES OF REVIEW OF THE ALABAMA SUPREME
COURT'S DECISION, AND IN ASSESSING THE COURT'S AFFIRMANCE, THAT
PETITIONERS COULD SUCCESSFULLY SUSTAIN THE CONTENTIONS (INTO WHICH THE
ALABAMA COURTS REFUSED TO INQUIRE) THAT THE ORDINANCE AND INJUNCTION
ARE IN FACT FACIALLY UNCONSTITUTIONAL AS EXCESSIVELY VAGUE PRIOR
RESTRAINTS ON FIRST AMENDMENT RIGHTS AND THAT THE ORDINANCE HAD BEEN
DISCRIMINATORILY APPLIED.  IT SHOULD BE NOTED, WITHOUT ELABORATION,
THAT THERE IS CLEARLY SOUND BASIS IN FACT FOR THIS ASSUMPTION:  THE
ALABAMA COURT OF APPEALS, IN A CASE INVOLVING ONE OF THESE PETITIONERS,
HAS HELD THAT THE ORDINANCE IS "VOID FOR VAGUENESS BECAUSE OF
OVERBROAD, AND CONSEQUENTLY MEANINGLESS, STANDARDS FOR THE ISSUANCE OF
PERMITS FOR PROCESSIONS," AND THAT THE ORDINANCE HAS BEEN ENFORCED
DISCRIMINATORILY.  SHUTTLESWORTH V. CITY OF BIRMINGHAM, 43 ALA. APP.
68, 180 SO. 2D 114 (1965).  HOWEVER, IT IS NOT THE MERITS OF SUCH
CLAIMS, BUT THE REFUSAL OF THE ALABAMA COURTS TO CONSIDER THEM, THAT IS
HERE INVOLVED.  (FN2) 

LIKE THE COURT, I START WITH THE PREMISE THAT STATES ARE FREE TO
ADOPT RULES OF JUDICIAL ADMINISTRATION DESIGNED TO REQUIRE RESPECT FOR
THEIR COURTS' ORDERS.  SEE HOWAT V. KANSAS, 258 U.S. 181.  (FN3)  BUT
THIS DOES NOT MEAN THAT THIS VALID STATE INTEREST DOES NOT ADMIT OF
COLLISION WITH OTHER AND MORE VITAL INTERESTS.  SURELY THE PROPOSITION
REQUIRES NO CITATION THAT A VALID STATE INTEREST MUST GIVE WAY WHEN IT
INFRINGES ON RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION.  THE PLAIN
MEANING OF THE SUPREMACY CLAUSE REQUIRES NO LESS.    IN THE PRESENT
CASE WE ARE CONFRONTED WITH A COLLISION BETWEEN ALABAMA'S INTEREST IN
REQUIRING ADHERENCE TO ORDERS OF ITS COURTS AND THE CONSTITUTIONAL
PROHIBITION AGAINST ABRIDGMENT OF FREEDOM OF SPEECH, MORE PARTICULARLY
"THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE," AND THE RIGHT "TO
PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES."  SEE, E.G.,
STROMBERG V. CALIFORNIA, 283 U.S. 359; DE JONGE V. OREGON, 299 U.S.
353; THORNHILL V. ALABAMA, 310 U.S. 88; EDWARDS V. SOUTH CAROLINA, 372
U.S. 229; COX V. LOUISIANA, 379 U.S. 536.  SPECIAL CONSIDERATIONS HAVE
TIME AND AGAIN BEEN DEEMED BY US TO ATTEND PROTECTION OF THESE FREEDOMS
IN THE FACE OF STATE INTERESTS THE VINDICATION OF WHICH RESULTS IN
PRIOR RESTRAINTS UPON THEIR EXERCISE, (FN4) OR THEIR REGULATION IN A
VAGUE OR OVERBROAD MANNER, (FN5) OR IN A WAY WHICH GIVES UNBRIDLED
DISCRETION TO LIMIT THEIR EXERCISE TO AN INDIVIDUAL OR GROUP OF
INDIVIDUALS.  (FN6)  TO GIVE THESE FREEDOMS THE NECESSARY "BREATHING
SPACE TO SURVIVE," NAACP V. BUTTON, 371 U.S. 415, 433, THE COURT HAS
MODIFIED TRADITIONAL RULES OF STANDING AND PREMATURITY.  SEE DOMBROWSKI
V. PFISTER, 380 U.S. 479.  WE HAVE MOLDED BOTH SUBSTANTIVE RIGHTS AND
PROCEDURAL REMEDIES IN THE FACE OF VARIED CONFLICTING INTERESTS TO
CONFORM TO OUR OVERRIDING DUTY TO INSULATE ALL INDIVIDUALS FROM THE
"CHILLING EFFECT" UPON EXERCISE OF FIRST AMENDMENT FREEDOMS GENERATED
BY VAGUENESS, OVERBREADTH AND UNBRIDLED DISCRETION TO LIMIT THEIR
EXERCISE. 

THE VITALITY OF FIRST AMENDMENT PROTECTIONS HAS, AS A RESULT, BEEN
DEEMED TO REST IN LARGE MEASURE UPON THE ABILITY OF THE INDIVIDUAL TO
TAKE HIS CHANCES AND EXPRESS HIMSELF IN THE FACE OF SUCH RESTRAINTS,
ARMED WITH THE ABILITY TO CHALLENGE THOSE RESTRAINTS IF THE STATE SEEKS
TO PENALIZE THAT EXPRESSION.  THE MOST STRIKING EXAMPLES OF THE RIGHT
TO SPEAK FIRST AND CHALLENGE LATER, AND OF PECULIAR MOMENT FOR THE
PRESENT CASE, ARE THE CASES CONCERNING THE ABILITY OF AN INDIVIDUAL TO
CHALLENGE A PERMIT OR LICENSING STATUTE GIVING BROAD DISCRETION TO AN
INDIVIDUAL OR GROUP, SUCH AS THE BIRMINGHAM PERMIT ORDINANCE, DESPITE
THE FACT THAT HE DID NOT ATTEMPT TO OBTAIN A PERMIT OR LICENSE.  IN
STAUB V. CITY OF BAXLEY, 355 U.S. 313, THE ACCUSED, PROSECUTED FOR
SOLICITING MEMBERS FOR AN ORGANIZATION WITHOUT A PERMIT, CONTENDED THAT
THE ORDINANCE WAS INVALID ON ITS FACE BECAUSE IT MADE EXERCISE OF
FREEDOM OF SPEECH CONTINGENT UPON THE WILL OF THE ISSUING AUTHORITY AND
THEREFORE WAS AN INVALID PRIOR RESTRAINT - THE SAME CONTENTION MADE BY
PETITIONERS WITH REGARD TO THE BIRMINGHAM ORDINANCE.  THE GEORGIA COURT
OF APPEALS HELD THAT "HAVING MADE NO EFFORT TO SECURE A LICENSE, THE
DEFENDANT IS IN NO POSITION TO CLAIM THAT ANY SECTION OF THE ORDINANCE
IS INVALID OR UNCONSTITUTIONAL  ...  ."  STAUB V. CITY OF BAXLEY,
SUPRA, AT 318.  WE REFUSED TO REGARD THIS HOLDING AS AN ADEQUATE
NONFEDERAL GROUND FOR DECISION, STATING, SUPRA, AT 319: 

"THE DECISIONS OF THIS COURT HAVE UNIFORMLY HELD THAT THE FAILURE TO
APPLY FOR A LICENSE UNDER AN ORDINANCE WHICH ON ITS FACE VIOLATES THE
CONSTITUTION DOES NOT PRECLUDE REVIEW IN THIS COURT OF A JUDGMENT OF
CONVICTION UNDER SUCH AN ORDINANCE.  SMITH V. CAHOON, 283 U.S. 553,
562; LOVELL V. GRIFFIN, 303 U.S. 444, 452.  'THE CONSTITUTION CAN
HARDLY BE THOUGHT TO DENY TO ONE SUBJECTED TO THE RESTRAINTS OF SUCH AN
ORDINANCE THE RIGHT TO ATTACK ITS CONSTITUTIONALITY, BECAUSE HE HAS NOT
YIELDED TO ITS DEMANDS.'  JONES V. OPELIKA, 316 U. S. 584, 602,
DISSENTING OPINION, ADOPTED PER CURIAM ON REHEARING, 319 U.S.
103,104." 

SEE ALSO COX V. LOUISIANA, 379 U.S. 536, 556-557. 

YET BY SOME INSCRUTABLE LEGERDEMAIN THESE CONSTITUTIONALLY SECURED
RIGHTS TO CHALLENGE PRIOR RESTRAINTS INVALID ON THEIR FACE ARE LOST IF
THE STATE TAKES THE PRECAUTION TO HAVE SOME JUDGE APPEND HIS SIGNATURE
TO AN EX PARTE ORDER WHICH RECITES THE WORDS OF THE INVALID STATUTE. 
THE STATE NEATLY INSULATES ITS LEGISLATION FROM CHALLENGE BY MERE
INCORPORATION OF THE IDENTICAL STIFLING, OVERBROAD, AND VAGUE
RESTRAINTS ON EXERCISE OF THE FIRST AMENDMENT FREEDOMS INTO AN EVEN
MORE VAGUE AND PERVASIVE INJUNCTION OBTAINED INVISIBLY AND UPON A STAGE
DARKENED LEST IT BE OPEN TO SCRUTINY BY THOSE AFFECTED.  THE EX PARTE
ORDER OF THE JUDICIAL OFFICER EXERCISING BROAD EQUITABLE POWERS IS
GLORIFIED ABOVE THE PRESUMABLY CAREFULLY CONSIDERED, EVEN IF HOPELESSLY
INVALID, MANDATES OF THE LEGISLATIVE BRANCH.  I WOULD EXPECT THIS
TRIBUNAL, CHARGED AS IT IS WITH THE ULTIMATE RESPONSIBILITY TO
SAFEGUARD OUR CONSTITUTIONAL FREEDOMS, TO REGARD THE EX PARTE
INJUNCTIVE TOOL TO BE FAR MORE DANGEROUS THAN STATUTES TO FIRST
AMENDMENT FREEDOMS.  ONE WOULD EXPECT THIS COURT PARTICULARLY TO
REMEMBER THE STERN LESSON HISTORY TAUGHT COURTS, IN THE CONTEXT OF THE
LABOR INJUNCTION, THAT THE EX PARTE INJUNCTION REPRESENTS THE MOST
DEVASTATING OF RESTRAINTS ON CONSTITUTIONALLY PROTECTED ACTIVITIES. 
TODAY, HOWEVER, THE WEAPON IS GIVEN COMPLETE INVULNERABILITY IN THE ONE
CONTEXT IN WHICH THE DANGER FROM BROAD PRIOR RESTRAINTS HAS BEEN
THOUGHT TO BE THE MOST ACUTE.  WERE IT NOT FOR THE EX PARTE INJUNCTION,
PETITIONERS COULD HAVE PARADED FIRST AND CHALLENGED THE PERMIT
ORDINANCE LATER.  BUT BECAUSE OF THE EX PARTE STAMP OF A JUDICIAL
OFFICER ON A COPY OF THE INVALID ORDINANCE THEY ARE BARRED NOT ONLY
FROM CHALLENGING THE PERMIT ORDINANCE, BUT ALSO THE POTENTIALLY MORE
STIFLING YET UNCONSIDERED RESTRAINTS EMBODIED IN THE INJUNCTION
ITSELF. 

THE COURT'S RELIGIOUS DEFERENCE TO THE STATE COURT'S APPLICATION OF
THE MINE WORKERS' RULE IN THE PRESENT CASE IS IN STARK CONTRAST TO THE
COURT'S APPROACH IN IN RE GREEN, 369 U.S. 689.  THE STATE COURT ISSUED
AN EX PARTE INJUNCTION AGAINST CERTAIN LABOR PICKETING.  GREEN, COUNSEL
FOR THE UNION, ADVISED THE UNION THAT THE ORDER WAS INVALID AND THAT IT
SHOULD CONTINUE TO PICKET SO THAT THE ORDER COULD BE TESTED IN A
CONTEMPT HEARING.  THE COURT HELD GREEN IN CONTEMPT WITHOUT ALLOWING
ANY CHALLENGE TO THE ORDER.  THIS COURT STATED THAT THE ISSUE WAS
"WHETHER THE STATE COURT WAS TRENCHING ON THE FEDERAL DOMAIN."  IN RE
GREEN, SUPRA, AT 692.  IT REMANDED FOR A HEARING TO DETERMINE WHETHER
THE ACTIVITY ENJOINED WAS "ARGUABLY" SUBJECT TO LABOR BOARD
JURISDICTION.  IN GREEN, THEREFORE, WE REJECTED BLIND EFFECTUATION OF
THE STATE'S INTEREST IN REQUIRING COMPLIANCE WITH ITS COURT'S EX PARTE
INJUNCTIONS BECAUSE OF THE "ARGUABLE" COLLISION WITH FEDERAL LABOR
POLICY.  YET IN THE PRESENT CASE THE COURT AFFIRMS THE DETERMINATION OF
A STATE COURT WHICH WAS WILLING TO ASSUME THAT ITS EX PARTE ORDER AND
THE UNDERLYING STATUTE WERE REPUGNANT ON THEIR FACE TO THE FIRST
AMENDMENT OF THE FEDERAL CONSTITUTION.  ONE MUST WONDER WHAT AN ODD
INVERSION OF VALUES IT IS TO AFFORD GREATER RESPECT TO AN "ARGUABLE"
COLLISION WITH FEDERAL LABOR POLICY THAN AN ASSUMEDLY PATENT
INTERFERENCE WITH CONSTITUTIONAL RIGHTS SO HIGH IN THE SCALE OF
CONSTITUTIONAL VALUES THAT THIS COURT HAS DESCRIBED THEM AS BEING
"DELICATE AND VULNERABLE, AS WELL AS SUPREMELY PRECIOUS IN OUR
SOCIETY."  NAACP V. BUTTON, 371 U.S. 415, 433. 

IT IS SAID THAT PETITIONERS SHOULD HAVE SOUGHT TO DISSOLVE THE
INJUNCTION BEFORE CONDUCTING THEIR PROCESSIONS.  THAT ARGUMENT IS
PLAINLY REPUGNANT TO THE PRINCIPLE THAT FIRST AMENDMENT FREEDOMS MAY BE
EXERCISED IN THE FACE OF LEGISLATIVE PRIOR RESTRAINTS, AND A FORTIORI
OF EX PARTE RESTRAINTS BROADER THAN SUCH LEGISLATIVE RESTRAINTS, WHICH
MAY BE CHALLENGED IN ANY SUBSEQUENT PROCEEDING FOR THEIR VIOLATION. 
BUT AT ALL EVENTS, PRIOR RESORT TO A MOTION TO DISSOLVE THIS INJUNCTION
COULD NOT BE REQUIRED BECAUSE OF THE COMPLETE ABSENCE OF ANY TIME
LIMITS ON THE DURATION OF THE EX PARTE ORDER.  SEE FREEDMAN V.
MARYLAND, 380 U.S. 51.  EVEN THE ALABAMA SUPREME COURT'S RULE 47 LEAVES
THE TIMING OF FULL JUDICAL CONSIDERATION OF THE VALIDITY OF THE
RESTRAINT TO THAT COURT'S UNTRAMMELED DISCRETION. 

THE SHIFTING OF THE BURDEN TO PETITIONERS TO SHOW THE LAWFULNESS OF
THEIR CONDUCT PRIOR TO ENGAGING IN ENJOINED ACTIVITY ALSO IS CONTRARY
TO THE PRINCIPLE, SETTLED BY SPEISER V. RANDALL, 357 U.S. 513, 526,
THAT: 

"THE MAN WHO KNOWS THAT HE MUST BRING FORTH PROOF AND PERSUADE
ANOTHER OF THE LAWFULNESS OF HIS CONDUCT NECESSARILY MUST STEER FAR
WIDER OF THE UNLAWFUL ZONE THAN IF THE STATE MUST BEAR THESE BURDENS
...  .  IN PRACTICAL OPERATION, THEREFORE, THIS PROCEDURAL DEVICE MUST
NECESSARILY PRODUCE A RESULT WHICH THE STATE COULD NOT COMMAND
DIRECTLY.  IT CAN ONLY RESULT IN A DETERRENCE OF SPEECH WHICH THE
CONSTITUTION MAKES FREE." 

THE SUGGESTION THAT PETITIONERS BE MUFFLED PENDING OUTCOME OF
DISSOLUTION PROCEEDINGS WITHOUT ANY MEASURABLE TIME LIMITS IS
PARTICULARLY INAPPROPRIATE IN THE SETTING OF THIS CASE.  CRITICAL TO
THE PLAIN EXERCISE OF THE RIGHT OF PROTEST WAS THE TIMING OF THAT
EXERCISE.  FIRST, THE MARCHES WERE PART OF A PROGRAM TO AROUSE
COMMUNITY SUPPORT FOR PETITIONERS' ASSAULT ON SEGREGATION THERE.  A
CESSATION OF THESE ACTIVITIES, EVEN FOR A SHORT PERIOD, MIGHT DEAL A
CRIPPLING BLOW TO PETITIONERS' EFFORTS.  SECOND, IN DRAMATIZATION OF
THEIR CAUSE, PETITIONERS, ALL MINISTERS, CHOSE APRIL 12, GOOD FRIDAY,
AND APRIL 14, EASTER SUNDAY, FOR THEIR PROTESTS HOPING TO GAIN THE
ATTENTION TO THEIR CAUSE WHICH SUCH TIMING MIGHT ATTRACT.  PETITIONERS
RECEIVED NOTICE OF THE ORDER APRIL 11.  THE ABILITY TO EXERCISE
PROTECTED PROTEST AT A TIME WHEN SUCH EXERCISE WOULD BE EFFECTIVE MUST
BE AS PROTECTED AS THE BELIEFS THEMSELVES.  CF. EX PARTE JACKSON, 96
U.S. 727, 733; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 248-250;
LOVELL V. GRIFFIN, 303 U.S. 444, 452.  IT IS A FLAGRANT DENIAL OF
CONSTITUTIONAL GUARANTEES TO BALANCE AWAY THIS PRINCIPLE IN THE NAME OF
"RESPECT FOR JUDICIAL PROCESS."  TO PREACH "RESPECT" IN THIS CONTEXT IS
TO DENY THE RIGHT TO SPEAK AT ALL. 

THE COURT TODAY LETS LOOSE A DEVASTATINGLY DESTRUCTIVE WEAPON FOR
INFRINGEMENT OF FREEDOMS JEALOUSLY SAFEGUARDED NOT SO MUCH FOR THE
BENEFIT OF ANY GIVEN GROUP OF ANY GIVEN PERSUASION AS FOR THE BENEFIT
OF ALL OF US.  WE CANNOT PERMIT FEARS OF "RIOTS" AND "CIVIL
DISOBEDIENCE" GENERATED BY SLOGANS LIKE "BLACK POWER" TO DIVERT OUR
ATTENTION FROM WHAT IS HERE AT STAKE - NOT VIOLENCE OR THE RIGHT OF THE
STATE TO CONTROL ITS STREETS AND SIDEWALKS, BUT THE INSULATION FROM
ATTACK OF EX PARTE ORDERS AND LEGISLATION UPON WHICH THEY ARE BASED
EVEN WHEN PATENTLY IMPERMISSIBLE PRIOR RESTRAINTS ON THE EXERCISE OF
FIRST AMENDMENT RIGHTS, THUS ARMING THE STATE COURTS WITH THE POWER TO
PUNISH AS A "CONTEMPT" WHAT THEY OTHERWISE COULD NOT PUNISH AT ALL. 
CONSTITUTIONAL RESTRICTIONS AGAINST ABRIDGMENTS OF FIRST AMENDMENT
FREEDOMS LIMIT JUDICIAL EQUALLY WITH LEGISLATIVE AND EXECUTIVE POWER. 
CONVICTIONS FOR CONTEMPT OF COURT ORDERS WHICH INVALIDLY ABRIDGE FIRST
AMENDMENT FREEDOMS MUST BE CONDEMNED EQUALLY WITH CONVICTIONS FOR
VIOLATION OF STATUTES WHICH DO THE SAME THING.  I RESPECTFULLY
DISSENT. 

FN1  TWO PETITIONERS RECEIVED NO PERSONAL NOTICE OF THE INJUNCTION AT
ALL.  THE TRIAL COURT FOUND THAT THEY WERE AWARE OF THE INJUNCTION, A
CONCLUSION HERE CHALLENGED.  BECAUSE OF THE DISPOSITION I WOULD MAKE OF
THIS CASE, I WOULD NOT REACH THIS ISSUE. 

FN2  THUS NOT AN ISSUE HERE IS THE EXTENT OF THE STATE'S RIGHT TO
CONTROL THE MANNER OF USE OF ITS STREETS AND SIDEWALKS.  SINCE THE
ALABAMA COURTS REFUSED TO CONSIDER THE MERITS OF PETITIONERS'
CONSTITUTIONAL CLAIMS IT MUST BE ASSUMED FOR PURPOSES OF REVIEW THAT
THE ORDINANCE AND INJUNCTION WERE INVALID ATTEMPTS TO EXERCISE SUCH
CONTROL. 

IN KASPER V. BRITTAIN, 245 F.2D 92, BOTH THE DISTRICT COURT AND THE
COURT OF APPEALS AFFORDED THE APPELLANT FULL CONSIDERATION OF HIS FIRST
AMENDMENT CONTENTION AND FOUND IT TO BE WITHOUT MERIT.  IN THAT
CIRCUMSTANCE, THE LANGUAGE OF THE OPINION OF THE COURT OF APPEALS, 245
F.2D, AT 96, PRESENTED NO ISSUE FOR THIS COURT'S REVIEW. 

FN3  IT SHOULD BE NOTED THAT THE STATE'S INTEREST IN THE INTEGRITY OF
ITS INJUNCTIVE REMEDY IN THE PRESENT CASE IS OF A DIFFERENT ORDER THAN
THAT EMBODIED IN OUR MINE WORKERS RULE.  THE INJUNCTIVE REMEDY WAS NOT
HERE NECESSARY TO PRESERVE THE STATUS QUO WHILE A CASE WAS PENDING
DECISION, BUT WAS MERELY THE CONVERSION OF A BROAD STATUTORY RESTRAINT
INTO A BROADER INJUNCTIVE RESTRAINT OF INDEFINITE DURATION, UNRELATED
TO ANY PENDING LITIGATION.  THIS COURT'S DECISION IN MINE WORKERS WAS
DIRECTED TO THE INTEGRITY OF THE DISTRICT COURT'S POWER "TO PRESERVE
EXISTING CONDITIONS WHILE IT WAS DETERMINING ITS OWN AUTHORITY TO GRANT
INJUNCTIVE RELIEF."  UNITED STATES V. MINE WORKERS, 330 U.S. 258, 293. 
IN HOWAT V. KANSAS, 258 U.S. 181, THE STATE COURT'S ORDER RELATED TO A
PENDING PROCEEDING BEFORE THE STATE "COURT OF INDUSTRIAL RELATIONS." 
THE STATE'S INTEREST IS HERE FURTHER LIMITED BY THE TRADITIONAL RULE OF
EQUITY JURISDICTION THAT EQUITY DOES NOT NORMALLY RESTRAIN CRIMINAL
ACTS BUT THAT THE STATE SHOULD PROCEED BY CRIMINAL PROSECUTION WITH ITS
ATTENDING SAFEGUARDS. 

FN4  SEE, E.G., NEAR V. MINNESOTA, 283 U.S. 697, 713-720; FREEDMAN V.
MARYLAND, 380 U.S. 51, 57-60. 

FN5  SEE, E.G., KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589; BAGGETT
V. BULLITT, 377 U.S. 360, 372-373; CRAMP V. BD. OF PUBLIC INSTRUCTION,
368 U.S. 278, 287-288. 

FN6  SEE, E.G., STAUB V. CITY OF BAXLEY, 355 U.S. 313; LOVELL V.
GRIFFIN, 303 U.S. 444; SCHNEIDER V. STATE, 308 U.S. 147; CANTWELL V.
CONNECTICUT, 310 U.S. 296. 
..END :



UNITED STATES V. SEALY, INC. 388 U.S. 350 


NO. 9.  ARGUED APRIL 20, 1967.  - DECIDED JUNE 12, 1967.  - REVERSED. 


THE UNITED STATES BROUGHT THIS CIVIL ACTION FOR VIOLATION OF SEC 1 OF
THE SHERMAN ACT AGAINST APPELLEE, THE OWNER OF THE TRADEMARKS FOR SEALY
BRANDED MATTRESSES AND BEDDING PRODUCTS WHICH IT LICENSED MANUFACTURERS
IN VARIOUS PARTS OF THE COUNTRY TO PRODUCE AND SELL UNDER A TERRITORIAL
ALLOCATION SYSTEM.  SEALY AGREED WITH EACH LICENSEE NOT TO LICENSE
ANYONE ELSE TO MANUFACTURE OR SELL IN A DESIGNATED AREA AND THE
LICENSEE AGREED NOT TO MANUFACTURE OR SELL SEALY PRODUCTS OUTSIDE THAT
AREA.  THE SEALY LICENSEES OWN SUBSTANTIALLY ALL APPELLEE'S STOCK AND
CONTROL ITS DAY-TO-DAY OPERATIONS, INCLUDING THE ASSIGNMENT AND
TERMINATION OF THE EXCLUSIVE TERRITORIAL LICENSES.  APPELLEE WAS
CHARGED WITH CONSPIRING WITH ITS LICENSEES TO FIX THE PRICES AT WHICH
THEIR RETAIL CUSTOMERS MIGHT RESELL SEALY PRODUCTS AND TO ALLOCATE
MUTUALLY EXCLUSIVE TERRITORIES AMONG THE LICENSEES.  THE DISTRICT COURT
AFTER TRIAL ENJOINED APPELLEE FROM PRICE FIXING AND NO APPEAL WAS
TAKEN.  IT ALSO RULED THAT SEALY'S ALLOCATION OF TERRITORIES TO ITS
LICENSEES DID NOT VIOLATE SEC 1, AND THE GOVERNMENT APPEALED FROM THAT
HOLDING.  HELD: 

1.  THE TERRITORIAL ALLOCATIONS HERE ARE NOT VERTICAL ARRANGEMENTS
IMPOSED BY THE LICENSOR BUT HORIZONTAL RESTRAINTS ARRANGED BY THE
LICENSEES.  "SEALY WAS A JOINT VENTURE OF, BY, AND FOR ITS STOCKHOLDER
LICENSEES  ...  AND (THEY) ARE THEMSELVES DIRECTLY, WITHOUT EVEN THE
SEMBLANCE OF INSULATION, IN CHARGE OF SEALY'S OPERATIONS."  WHITE MOTOR
CO. V. UNITED STATES, 372 U.S. 253 (1963), DISTINGUISHED.  PP. 352
354. 

2.  THE TERRITORIAL RESTRAINTS WERE A PART OF THE UNLAWFUL PRICE
FIXING AND POLICING ACTIVITIES OF SEALY OPERATING AS AN INSTRUMENTALITY
OF THE LICENSEES AND CONSTITUTED "AN AGGREGATION OF TRADE RESTRAINTS"
WHICH WAS ILLEGAL PER SE.  PP. 354-358. 

UNITED STATES V. SEALY, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

APPELLEE AND ITS PREDECESSORS HAVE, FOR MORE THAN 40 YEARS, BEEN
ENGAGED IN THE BUSINESS OF LICENSING MANUFACTURERS OF MATTRESSES AND
BEDDING PRODUCTS TO MAKE AND SELL SUCH PRODUCTS UNDER THE SEALY NAME
AND TRADEMARKS.  IN THIS CIVIL ACTION THE UNITED STATES CHARGED THAT
APPELLEE HAD VIOLATED SEC 1 OF THE SHERMAN ACT, 26 STAT. 209, AS
AMENDED, 15 U.S.C. SEC 1, BY CONSPIRING WITH ITS LICENSEES TO FIX THE
PRICES AT WHICH THE RETAIL CUSTOMERS OF THE LICENSEES MIGHT RESELL
BEDDING PRODUCTS BEARING THE SEALY NAME, AND TO ALLOCATE MUTUALLY
EXCLUSIVE TERRITORIES AMONG SUCH MANUFACTURER-LICENSEES. 

AFTER TRIAL, THE DISTRICT COURT FOUND THAT THE APPELLEE WAS ENGAGED
IN A CONTINUING CONSPIRACY WITH ITS MANUFACTURER-LICENSEES TO AGREE
UPON AND FIX MINIMUM RETAIL PRICES ON SEALY PRODUCTS AND TO POLICE THE
PRICES SO FIXED.  IT ENJOINED THE APPELLEE FROM SUCH CONDUCT,
"PROVIDED, HOWEVER, THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO
PROHIBIT THE DEFENDANT FROM DISSEMINATING AND USING SUGGESTED RETAIL
PRICES FOR THE PURPOSE OF NATIONAL ADVERTISING OF SEALY PRODUCTS." 
APPELLEE DID NOT APPEAL THE FINDING OR ORDER RELATING TO PRICE-FIXING. 

WITH RESPECT TO THE CHARGE THAT APPELLEE CONSPIRED TO ALLOCATE
MUTUALLY EXCLUSIVE TERRITORY AMONG ITS MANUFACTURERS, THE DISTRICT
COURT HELD THAT THE UNITED STATES HAD NOT PROVED CONDUCT "IN
UNREASONABLE RESTRAINT OF TRADE IN VIOLATION OF SECTION 1 OF THE
SHERMAN ACT."  THE UNITED STATES APPEALED UNDER SEC 2 OF THE EXPEDITING
ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC 29.  WE NOTED PROBABLE
JURISDICTION.  382 U.S. 806 (1965). 

THERE IS NO DISPUTE THAT EXCLUSIVE TERRITORIES WERE ALLOTTED TO THE
MANUFACTURER-LICENSEES.  SEALY AGREED WITH EACH LICENSEE NOT TO LICENSE
ANY OTHER PERSON TO MANUFACTURE OR SELL IN THE DESIGNATED AREA; AND THE
LICENSEE AGREED NOT TO MANUFACTURE OR SELL "SEALY PRODUCTS" OUTSIDE THE
DESIGNATED AREA.  A MANUFACTURER COULD MAKE AND SELL HIS PRIVATE LABEL
PRODUCTS ANYWHERE HE MIGHT CHOOSE. 

BECAUSE THIS COURT HAS DISTINGUISHED BETWEEN HORIZONTAL AND VERTICAL
TERRITORIAL LIMITATIONS FOR PURPOSES OF THE IMPACT OF THE SHERMAN ACT,
IT IS FIRST NECESSARY TO DETERMINE WHETHER THE TERRITORIAL ARANGEMENTS
HERE ARE TO BE TREATED AS THE CREATURE OF THE LICENSOR, SEALY, OR AS
THE PRODUCT OF A HORIZONTAL ARRANGEMENT AMONG THE LICENSEES.  WHITE
MOTOR CO. V. UNITED STATES, 372 U.S. 253 (1963). 

IF WE LOOK AT SUBSTANCE RATHER THAN FORM, THERE IS LITTLE ROOM FOR
DEBATE.  THESE MUST BE CLASSIFIED AS HORIZONTAL RESTRAINTS.  COMPARE
UNITED STATES V. GENERAL MOTORS, 384 U.S. 127, 141-148 (1966); ID., AT
148-149 (HARLAN, J., CONCURRING IN THE RESULT); UNITED STATES V. PARKE,
DAVIS & CO., 362 U.S. 29 (1960). 

THERE ARE ABOUT 30 SEALY "LICENSEES."  THEY OWN SUBSTANTIALLY ALL OF
ITS STOCK.  (FN1)  SEALY'S BYLAWS PROVIDE THAT EACH DIRECTOR MUST BE A
STOCKHOLDER OR A STOCKHOLDER LICENSEE'S NOMINEE.  SEALY'S BUSINESS IS
MANAGED AND CONTROLLED BY ITS BOARD OF DIRECTORS.  BETWEEN BOARD
MEETINGS, THE EXECUTIVE COMMITTEE ACTS.  IT IS COMPOSED OF SEALY'S
PRESIDENT AND FIVE BOARD MEMBERS, ALL LICENSEE-STOCKHOLDERS.  CONTROL
DOES NOT RESIDE IN THE LICENSEES ONLY AS A MATTER OF FORM.  IT IS
EXERCISED BY THEM IN THE DAY-TO-DAY BUSINESS OF THE COMPANY INCLUDING
THE GRANT, ASSIGNMENT, REASSIGNMENT, AND TERMINATION OF EXCLUSIVE
TERRITORIAL LICENSES.  ACTION OF THIS SORT IS TAKEN EITHER BY THE BOARD
OF DIRECTORS OR THE EXECUTIVE COMMITTEE OF SEALY, BOTH OF WHICH, AS WE
HAVE SAID, ARE MANNED, WHOLLY OR ALMOST ENTIRELY, BY LICENSEE
STOCKHOLDERS. 

APPELLEE ARGUES THAT "THERE IS NO EVIDENCE THAT SEALY IS A MERE
CREATURE OR INSTRUMENTALITY OF ITS STOCKHOLDERS."  IN SUPPORT OF THIS
PROPOSITION, IT STOUTLY ASSERTS THAT "THE STOCKHOLDERS AND DIRECTORS
WORE A 'SEALY HAT' WHEN THEY WERE ACTING ON BEHALF OF SEALY."  BUT THE
OBVIOUS AND INESCAPABLE FACTS ARE THAT SEALY WAS A JOINT VENTURE OF,
BY, AND FOR ITS STOCKHOLDER-LICENSEES; AND THE STOCKHOLDER-LICENSEES
ARE THEMSELVES DIRECTLY, WITHOUT EVEN THE SEMBLANCE OF INSULATION, IN
CHARGE OF SEALY'S OPERATIONS. 

FOR EXAMPLE, SOME OF THE CRUCIAL FINDINGS OF THE DISTRICT COURT
DESCRIBE ACTIONS AS HAVING BEEN TAKEN BY "STOCKHOLDER REPRESENTATIVES"
ACTING AS THE BOARD OR A COMMITTEE. 

IT IS TRUE THAT THE LICENSEES HAD AN INTEREST IN SEALY'S
EFFECTIVENESS AND EFFICIENCY, AND, AS STOCKHOLDERS, THEY WELCOMED ITS
PROFITABILITY - AT ANY RATE WITHIN THE LIMITS SET BY THEIR WILLINGNESS
AS LICENSEES TO PAY ROYALTIES TO THE JOINT VENTURE.  BUT THAT DOES NOT
DETERMINE WHETHER THEY AS LICENSEES ARE CHARGEABLE WITH ACTION IN THE
NAME OF SEALY.  WE SEEK THE CENTRAL SUBSTANCE OF THE SITUATION, NOT ITS
PERIPHERY; (FN2) AND IN THIS PURSUIT, WE ARE MOVED BY THE IDENTITY OF
THE PERSONS WHO ACT, RATHER THAN THE LABEL OF THEIR HATS.  THE
ARRANGEMENTS FOR EXCLUSIVE TERRITORIES ARE NECESSARILY CHARGEABLE TO
THE LICENSEES OF APPELLEE WHOSE INTERESTS SUCH ARRANGEMENTS WERE
SUPPOSED TO PROMOTE AND WHO, THROUGH SELECT MEMBERS, GUARANTEED OR
WITHHELD AND HAD THE POWER TO TERMINATE LICENSES FOR INADEQUATE
PERFORMANCE.  THE TERRITORIAL ARRANGEMENTS MUST BE REGARDED AS THE
CREATURE OF HORIZONTAL ACTION BY THE LICENSEES.  IT WOULD VIOLATE
REALITY TO TREAT THEM AS EQUIVALENT TO TERRITORIAL LIMITATIONS IMPOSED
BY A MANUFACTURER UPON INDEPENDENT DEALERS AS INCIDENT TO THE SALE OF A
TRADEMARKED PRODUCT.  SEALY, INC., IS AN INSTRUMENTALITY OF THE
LICENSEES FOR PURPOSES OF THE HORIZONTAL TERRITORIAL ALLOCATION.  IT IS
NOT THE PRINCIPAL. 

ACCORDINGLY, THIS CASE IS TO BE DISTINGUISHED FROM WHITE MOTOR CO. V.
UNITED STATES, SUPRA, WHICH INVOLVED A VERTICAL TERRITORIAL
LIMITATION.  IN THAT CASE, THIS COURT POINTED OUT THAT VERTICAL
RESTRAINTS WERE NOT EMBRACED WITHIN THE CONDEMNATION OF HORIZONTAL
TERRITORIAL LIMITATIONS IN TIMKEN ROLLER BEARING CO. V. UNITED STATES,
341 U.S. 593 (1951), AND, PRIOR TO TRIAL ON SUMMARY JUDGMENT
PROCEEDINGS, THE COURT DECLINED TO EXTEND TIMKEN "TO A VERTICAL
ARRANGEMENT BY ONE MANUFACTURER RESTRICTING THE TERRITORY OF HIS
DISTRIBUTORS OR DEALERS."  372 U.S., AT 261. 

TIMKEN INVOLVED AGREEMENTS BETWEEN UNITED STATES, BRITISH, AND FRENCH
COMPANIES FOR TERRITORIAL DIVISION AMONG THEMSELVES OF WORLD MARKETS
FOR ANTIFRICTION BEARINGS.  THE AGREEMENTS INCLUDED FIXING PRICES ON
THE PRODUCTS OF ONE COMPANY SOLD IN THE TERRITORY OF THE OTHERS;
RESTRICTING IMPORTS TO AND EXPORTS FROM THE UNITED STATES; AND
EXCLUDING OUTSIDE COMPETITION.  THIS COURT HELD THAT THE "AGGREGATION
OF TRADE RESTRAINTS SUCH AS THOSE EXISTING IN THIS CASE ARE ILLEGAL
UNDER THE (SHERMAN) ACT."  341 U.S., AT 598. 

IN THE PRESENT CASE, WE ARE ALSO FACED WITH AN "AGGREGATION OF TRADE
RESTRAINTS."  SINCE THE EARLY DAYS OF THE COMPANY IN 1925 AND
CONTINUOUSLY THEREAFTER, THE PRICES TO BE CHARGED BY RETAILERS TO WHOM
THE LICENSEE-STOCKHOLDERS OF SEALY SOLD THEIR PRODUCTS HAVE BEEN FIXED
AND POLICED BY THE LICENSEE-STOCKHOLDERS DIRECTLY, BY SEALY ITSELF, AND
BY COLLABORATION BETWEEN THEM.  AS THE DISTRICT COURT FOUND: 

"THE STOCKHOLDER-LICENSEE REPRESENTATIVES  ...  AS THE BOARD OF
DIRECTORS, THE EXECUTIVE COMMITTEE, OR OTHER COMMITTEES OF SEALY, INC.
...  DISCUSS, AGREE UPON AND SET: 

"(A) THE RETAIL PRICES AT WHICH SEALY PRODUCTS COULD BE SOLD: 

"(B) THE RETAIL PRICES AT WHICH SEALY PRODUCTS COULD BE ADVERTISED: 

"(C) THE COMPARATIVE RETAIL PRICES AT WHICH THE STOCKHOLDER-LICENSEES
AND THE SEALY RETAILERS COULD ADVERTISE SEALY PRODUCTS: 

"(D) THE MINIMUM RETAIL PRICES BELOW WHICH SEALY PRODUCTS COULD NOT
BE ADVERTISED: 

"(E) THE MINIMUM RETAIL PRICES BELOW WHICH SEALY PRODUCTS COULD NOT
BE SOLD; AND: 

"(F) THE MEANS OF INDUCING AND ENFORCING RETAILERS TO ADHERE TO THESE
AGREED UPON AND SET PRICES." 

THESE ACTIVITIES, AS THE DISTRICT COURT HELD, CONSTITUTE A VIOLATION
OF THE SHERMAN ACT.  THEIR ANTICOMPETITIVE NATURE AND EFFECT ARE SO
APPARENT AND SO SERIOUS THAT THE COURTS WILL NOT PAUSE TO ASSESS THEM
IN LIGHT OF THE RULE OF REASON.  SEE, E.G., UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S. 150, 210-218 (1940); UNITED STATES V. GENERAL
MOTORS, 384 U.S. 127, 147 (1966). 

APPELLEE HAS NOT APPEALED THE ORDER OF THE DISTRICT COURT ENJOINING
CONTINUATION OF THIS PRICE-FIXING, BUT THE EXISTENCE AND IMPACT OF THE
PRACTICE CANNOT BE IGNORED IN OUR APPRAISAL OF THE TERRITORIAL
LIMITATIONS.  IN THE FIRST PLACE, THIS FLAGRANT AND PERVASIVE PRICE
FIXING, IN OBVIOUS VIOLATION OF THE LAW, WAS, AS THE TRIAL COURT FOUND,
THE ACTIVITY OF THE "STOCKHOLDER REPRESENTATIVES" ACTING THROUGH AND IN
COLLABORATION WITH SEALY MECHANISMS.  THIS UNDERLINES THE HORIZONTAL
NATURE OF THE ENTERPRISE, AND THE USE OF SEALY, NOT AS A SEPARATE
ENTITY, BUT AS AN INSTRUMENTALITY OF THE INDIVIDUAL MANUFACTURERS.  IN
THE SECOND PLACE, THIS UNLAWFUL RESALE PRICE-FIXING ACTIVITY REFUTES
APPELLEE'S CLAIM THAT THE TERRITORIAL RESTRAINTS WERE MERE INCIDENTS OF
A LAWFUL PROGRAM OF TRADEMARK LICENSING.  CF. TIMKEN ROLLER BEARING CO.
V. UNITED STATES, SUPRA. (FN3)  THE TERRITORIAL RESTRAINTS WERE A PART
OF THE UNLAWFUL PRICE-FIXING AND POLICING.  AS SPECIFIC FINDINGS OF THE
DISTRICT COURT SHOW, THEY GAVE TO EACH LICENSEE AN ENCLAVE IN WHICH IT
COULD AND DID ZEALOUSLY AND EFFECTIVELY MAINTAIN RESALE PRICES, FREE
FROM THE DANGER OF OUTSIDE INCURSIONS.  IT MAY BE TRUE, AS APPELLEE
VIGOROUSLY ARGUES, THAT TERRITORIAL EXCLUSIVITY SERVED MANY OTHER
PURPOSES.  BUT ITS CONNECTION WITH THE UNLAWFUL PRICE-FIXING IS ENOUGH
TO REQUIRE THAT IT BE CONDEMNED AS AN UNLAWFUL RESTRAINT AND THAT
APPELLEE BE EFFECTIVELY PREVENTED FROM ITS CONTINUED OR FURTHER USE. 

IT IS URGED UPON US THAT WE SHOULD CONDONE THIS TERRITORIAL
LIMITATION AMONG MANUFACTURERS OF SEALY PRODUCTS BECAUSE OF THE ABSENCE
OF ANY SHOWING THAT IT IS UNREASONABLE.  IT IS ARGUED, FOR EXAMPLE,
THAT A NUMBER OF SMALL GROCERS MIGHT ALLOCATE TERRITORY AMONG
THEMSELVES ON AN EXCLUSIVE BASIS AS INCIDENT TO THE USE OF A COMMON
NAME AND COMMON ADVERTISEMENTS, AND THAT THIS SORT OF VENTURE SHOULD BE
WELCOMED IN THE INTERESTS OF COMPETITION, AND SHOULD NOT BE CONDEMNED
AS PER SE UNLAWFUL.  BUT CONDEMNATION OF APPELLEE'S TERRITORIAL
ARRANGEMENTS CERTAINLY DOES NOT REQUIRE US TO GO SO FAR AS TO CONDEMN
THAT QUITE DIFFERENT SITUATION, WHATEVER MIGHT BE THE RESULT IF IT WERE
PRESENTED TO US FOR DECISION.  (FN4)  FOR HERE, THE ARRANGEMENTS FOR
TERRITORIAL LIMITATIONS ARE PART OF "AN AGGREGATION OF TRADE
RESTRAINTS" INCLUDING UNLAWFUL PRICE-FIXING AND POLICING.  TIMKEN
ROLLER BEARING CO. V. UNITED STATES, SUPRA, 341 U.S., AT 598.  COMPARE
UNITED STATES V. GENERAL MOTORS, 384 U.S. 127, 147-148 (1966).  (FN5)
WITHIN SETTLED DOCTRINE, THEY ARE UNLAWFUL UNDER SEC 1 OF THE SHERMAN
ACT WITHOUT THE NECESSITY FOR AN INQUIRY IN EACH PARTICULAR CASE AS TO
THEIR BUSINESS OR ECONOMIC JUSTIFICATION, THEIR IMPACT IN THE
MARKETPLACE, OR THEIR REASONABLENESS. 

ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE
CASE REMANDED FOR THE ENTRY OF AN APPROPRIATE DECREE. 

FN1  A NONLICENSEE, BERGMANN, WHO WAS SEALY'S PRESIDENT IN THE
1950'S, OWNS SOME OF THE REMAINING STOCK; STOCKHOLDERS HAVE PRE-EMPTIVE
RIGHTS. 

FN2  CF., E.G., TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S.
593 (1951); UNITED STATES V. GENERAL MOTORS, 384 U.S. 127 (1966);
UNITED STATES V. NEW WRINKLE, INC., 342 U.S. 371 (1952); UNITED STATES
V. AMERICAN TOBACCO CO., 221 U.S. 106 (1911). 

FN3  IN TIMKEN, AS IN THE PRESENT CASE, IT WAS ARGUED THAT THE
RESTRAINTS WERE REASONABLE STEPS INCIDENT TO A VALID TRADEMARK
LICENSING SYSTEM.  BUT THE COURT SUMMARILY REJECTED THE ARGUMENT, AS WE
DO HERE.  IT POINTED OUT THAT THE RESTRAINTS WENT FAR BEYOND THE
PROTECTION OF THE TRADEMARK AND INCLUDED NONTRADEMARKED ITEMS, AND IT
CONCLUDED THAT:  "A TRADEMARK CANNOT BE LEGALLY USED AS A DEVICE FOR
SHERMAN ACT VIOLATION."  341 U.S., AT 599.  CF.  SEC 33 OF THE LANHAM
ACT, 60 STAT. 438, AS AMENDED, 15 U.S.C. SEC 1115(B)(7).  IN TIMKEN,
THE RESTRAINTS COVERED NONBRANDED MERCHANDISE AS WELL AS THE "TIMKEN"
LINE.  IN THE PRESENT CASE THE RESTRAINTS WERE IN TERMS OF "SEALY
PRODUCTS" ONLY.  AS TO THEIR PRIVATE LABEL PRODUCTS, THE LICENSEES WERE
FREE TO SELL OUTSIDE OF THE GIVEN TERRITORY AND, SO FAR AS APPEARS,
WITHOUT RESALE PRICE COLLABORATION OR ENFORCEMENT.  BUT THIS DIFFERENCE
IN FACT IS NOT CONSEQUENTIAL IN THIS CASE.  A RESTRAINT SUCH AS IS HERE
INVOLVED OF THE RESALE PRICE OF A TRADEMARKED ARTICLE, NOT OTHERWISE
PERMITTED BY LAW, CANNOT BE DEFENDED AS ANCILLARY TO A TRADEMARK
LICENSING SCHEME.  CF. ALSO UNITED STATES V. GENERAL MOTORS, 384 U.S.
127, 142-143 (1966). 

FN4  CF. NORTHERN PACIFIC R. CO. V. UNITED STATES, 356 U.S. 1, 6-7
(1958):  "AS A SIMPLE EXAMPLE, IF ONE OF A DOZEN FOOD STORES IN A
COMMUNITY WERE TO REFUSE TO SELL FLOUR UNLESS THE BUYER ALSO TOOK SUGAR
IT WOULD HARDLY TEND TO RESTRAIN COMPETITION IN SUGAR IF ITS
COMPETITORS WERE READY AND ABLE TO SELL FLOUR BY ITSELF."    FN5  MR.
JUSTICE HARLAN OBSERVED, CONCURRING IN THE RESULT IN UNITED STATES V.
GENERAL MOTORS, 384 U.S. 127, 148-149, THAT "ALTHOUGH PARKE DAVIS
RELATED TO ALLEGED PRICE-FIXING, I HAVE BEEN UNABLE TO DISCERN ANY
TENABLE REASON FOR DIFFERENTIATING IT FROM A CASE INVOLVING, AS HERE,
ALLEGED BOYCOTTING."  THE SAME CONCLUSION WOULD SEEM TO APPLY WITH
RESPECT TO AN ALLEGED MARKET DIVISION, WHICH, LIKE PRICE-FIXING, GROUP
BOYCOTTS, AND TYING ARRANGEMENTS, HAS BEEN HELD TO BE A PER SE
VIOLATION OF THE SHERMAN ACT.  NORTHERN PACIFIC R. CO. V. UNITED
STATES, 356 U.S. 1, 5 (1958). 

MR. JUSTICE CLARK AND MR. JUSTICE WHITE TOOK NO PART IN THE DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, DISSENTING. 

I CANNOT AGREE THAT ON THIS RECORD THE RESTRICTIVE TERRITORIAL
ARRANGEMENTS HERE CHALLENGED ARE PROPERLY TO BE CLASSIFIED AS
"HORIZONTAL," AND HENCE ILLEGAL PER SE UNDER ESTABLISHED ANTITRUST
DOCTRINE.  I BELIEVE THAT THEY SHOULD BE REGARDED AS "VERTICAL" AND
THUS, AS THE COURT RECOGNIZES, SUBJECT TO DIFFERENT ANTITRUST
EVALUATION. 

SEALY, INC., IS THE OWNER OF TRADEMARKS FOR SEALY BRANDED BEDDING. 
SEALY LICENSES MANUFACTURERS IN VARIOUS PARTS OF THE COUNTRY TO PRODUCE
AND SELL ITS PRODUCTS.  IN ADDITION, SEALY PROVIDES TECHNICAL AND
MANAGERIAL SERVICES FOR THEM, CONDUCTS ADVERTISING AND OTHER
PROMOTIONAL PROGRAMS, AND ENGAGES IN TECHNICAL RESEARCH AND QUALITY
CONTROL ACTIVITIES.  THE GOVERNMENT'S THEORY OF THIS CASE IN THE
DISTRICT COURT WAS ESSENTIALLY THAT THE ALLOCATION OF TERRITORIES BY
SEALY TO ITS VARIOUS LICENSEES WAS UNLAWFUL PER SE BECAUSE IN SPITE OF
THESE OTHER LEGITIMATE ACTIVITIES SEALY WAS ACTUALLY A "FRONT" CREATED
AND USED BY THE VARIOUS MANUFACTURERS OF SEALY PRODUCTS "TO CAMOUFLAGE
THEIR OWN COLLUSIVE ACTIVITIES  ... ."  PLAINTIFF'S BRIEF IN OPPOSITION
TO DEFENDANTS' BRIEFS, OCTOBER 12, 1961, PP. 12, 15. 

IF SUCH A CHARACTERIZATION OF SEALY HAD BEEN PROVED AT TRIAL I WOULD
AGREE THAT THE DIVISION OF TERRITORIES IS ILLEGAL PER SE.  HORIZONTAL
AGREEMENTS AMONG MANUFACTURERS TO DIVIDE TERRITORIES HAVE LONG BEEN
HELD TO VIOLATE THE ANTITRUST LAWS WITHOUT REGARD TO ANY ASSERTED
JUSTIFICATION FOR THEM.  SEE ADDYSTON PIPE & STEEL CO. V. UNITED
STATES, 175 U.S. 211; UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319;
TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S. 593.  THE REASON
IS THAT TERRITORIAL DIVISIONS PREVENT OPEN COMPETITION, AND WHERE THEY
ARE EFFECTED HORIZONTALLY BY MANUFACTURERS OR BY SELLERS WHO IN THE
NORMAL COURSE OF THINGS WOULD BE COMPETING AMONG THEMSELVES, SUCH
RESTRAINTS ARE IMMEDIATELY SUSPECT.  AS THE COURT NOTED IN WHITE MOTOR
CO. V. UNITED STATES, 372 U.S. 253, 263, THEY ARE "NAKED RESTRAINTS OF
TRADE WITH NO PURPOSE EXCEPT STIFLING OF COMPETITION."  ON THE OTHER
HAND, VERTICAL RESTRAINTS - THAT IS, LIMITATIONS IMPOSED BY A
MANUFACTURER ON HIS OWN DEALERS, AS IN WHITE MOTOR CO., SUPRA, OR BY A
LICENSOR ON HIS LICENSEES - MAY HAVE INDEPENDENT AND VALID BUSINESS
JUSTIFICATIONS.  THE PERSON IMPOSING THE RESTRAINT CANNOT NECESSARILY
BE SAID TO BE ACTING FOR ANTICOMPETITIVE PURPOSES.  QUITE TO THE
CONTRARY, HE CAN BE EXPECTED TO BE ACTING TO ENHANCE THE COMPETITIVE
POSITION OF HIS PRODUCT VIS-A-VIS OTHER BRANDS. 

WITH RESPECT TO VERTICAL RESTRICTIONS, IT HAS LONG BEEN RECOGNIZED
THAT IN ORDER TO ENGAGE IN EFFECTIVE INTERBRAND COMPETITION, SOME
LIMITATIONS ON INTRABRAND COMPETITION MAY BE NECESSARY.  RESTRAINTS OF
THIS TYPE "MAY BE ALLOWABLE PROTECTIONS AGAINST AGGRESSIVE COMPETITORS
OR THE ONLY PRACTICABLE MEANS A SMALL COMPANY HAS FOR BREAKING INTO OR
STAYING IN BUSINESS (CF. BROWN SHOE V. UNITED STATES, 370 U.S. 294, AT
330; UNITED STATES V. JERROLD ELECTRONICS CORP., 187 F. SUPP. 545, 560
561, AFF'D, 365 U.S. 567) AND WITHIN THE 'RULE OF REASON,'" WHITE MOTOR
CO., SUPRA, AT 263; SEE ALSO ID., AT 267-272 (CONCURRING OPINION OF
BRENNAN, J.).  FOR THESE REASONS TERRITORIAL LIMITATIONS IMPOSED
VERTICALLY SHOULD BE TESTED BY THE RULE OF REASON, NAMELY, WHETHER IN
THE CONTEXT OF THE PARTICULAR INDUSTRY, "THE RESTRAINT IMPOSED IS SUCH
AS MERELY REGULATES AND PERHAPS THEREBY PROMOTES COMPETITION OR WHETHER
IT IS SUCH AS MAY SUPPRESS OR EVEN DESTROY COMPETITION."  CHICAGO BOARD
OF TRADE V. UNITED STATES, 246 U.S. 231, 238.  INDEED THE COURT
REAFFIRMS THESE PRINCIPLES IN THE OPINION WHICH IT ANNOUNCES TODAY IN
UNITED STATES V. ARNOLD, SCHWINN & CO., POST, P. 365. 

THE QUESTION IN THIS CASE IS WHETHER SEALY IS PROPERLY TO BE REGARDED
AS AN INDEPENDENT LICENSOR WHICH, AS A PRIMA FACIE MATTER, CAN BE
DEEMED TO HAVE IMPOSED THESE RESTRAINTS ON ITS LICENSEES FOR ITS OWN
BUSINESS PURPOSES, OR AS EQUIVALENT TO A HORIZONTAL COMBINATION OF
LICENSEES, THAT IS AS SIMPLY A VEHICLE FOR EFFECTUATING HORIZONTAL
ARRANGEMENTS BETWEEN ITS LICENSEES.  ON THE BASIS OF THE FINDINGS MADE
BY THE DISTRICT COURT, I AM UNABLE TO ACCEPT THE COURT'S CLASSIFICATION
OF THESE RESTRAINTS AS HORIZONTALLY CONTRIVED.  THE DISTRICT COURT MADE
THE FOLLOWING FINDINGS: 

"84.  THE PRECEDING (DETAILED FACTUAL) FINDINGS INDICATE THE TYPE OF
EVIDENCE IN THIS RECORD THAT DEMONSTRATES THAT THERE HAS NEVER BEEN A
CENTRAL CONSPIRATORIAL PURPOSE ON THE PART OF SEALY AND ITS LICENSEES
TO DIVIDE THE UNITED STATES INTO TERRITORIES IN WHICH COMPETITORS WOULD
NOT COMPETE.  THEIR MAIN PURPOSE HAS BEEN THE PROPER EXPLOITATION OF
THE SEALY NAME AND TRADEMARKS BY LICENSING BEDDING MANUFACTURERS TO
MANUFACTURE AND SELL SEALY PRODUCTS IN EXCHANGE FOR ROYALTIES TO
SEALY.  THE FACT REMAINS THAT EACH LICENSEE WAS RESTRICTED IN THE
TERRITORY IN WHICH HE COULD MANUFACTURE AND SELL SEALY PRODUCTS. 
HOWEVER, THE RECORD SHOWS THAT THIS RESTRICTION WAS IMPOSED BY SEALY
AND WAS ALSO SECONDARY, OR ANCILLARY, TO THE MAIN PURPOSE OF SEALY'S
LICENSE CONTRACTS. 

     *         *         *         *         * 

"119.  PLAINTIFF'S EVIDENCE, READ AS A WHOLE, CONCLUSIVELY PROVES
THAT THE SEALY LICENSING ARRANGEMENTS WERE DEVELOPED IN THE EARLY
1920'S FOR ENTIRELY LEGITIMATE BUSINESS PURPOSES, INCLUDING ROYALTY
INCOME TO SUGAR LAND INDUSTRIES, WHICH OWNED THE SEALY NAME, TRADEMARKS
AND PATENTS, AND THE BENEFITS TO LICENSEES OF JOINT PURCHASING,
RESEARCH, ENGINEERING, ADVERTISING AND MERCHANDISING.  THESE OBJECTIVES
WERE CARRIED OUT BY SUCCESSOR COMPANIES, INCLUDING DEFENDANT, WHOSE
ACTIVITIES HAVE BEEN DIRECTED NOT TOWARD MARKET DIVISION AMONG
LICENSEES BUT TOWARD OBTAINING ADDITIONAL LICENSEES AND MORE INTENSIVE
SALES COVERAGE." 

THE SOLICITOR GENERAL IN PRESENTING THE APPEAL TO THIS COURT STATED
EXPLICITLY THAT HE DID NOT CONTEND "THAT SEALY, INC. WAS NO MORE THAN A
FACADE FOR A CONSPIRACY TO SUPPRESS COMPETITION," BRIEF, P. 12, SINCE
IT ADMITTEDLY DID HAVE GENUINE AND LAWFUL PURPOSES.  FOR ME THESE
DISTRICT COURT FINDINGS, WHICH THE GOVERNMENT ACCEPTS FOR PURPOSES OF
THIS APPEAL, TAKE THIS CASE OUT OF THE CATEGORY OF HORIZONTAL
AGREEMENTS, AND THUS OUT OF THE PER SE CATEGORY AS WELL.  (FN1)  SEALY
HAS WHOLLY LEGITIMATE INTERESTS AND PURPOSES OF ITS OWN:  IT IS ENGAGED
IN VIGOROUS INTERBRAND COMPETITION WITH LARGE INTEGRATED BEDDING
MANUFACTURERS AND WITH RETAIL CHAINS SELLING THEIR OWN PRODUCTS.  (FN2)
SEALY'S GOAL IS TO MAXIMIZE SALES OF ITS PRODUCTS NATIONWIDE, AND THUS
TO MAXIMIZE ITS ROYALTIES.  THE TEST UNDER SUCH CIRCUMSTANCES SHOULD BE
THE SAME AS THAT GOVERNING OTHER VERTICAL RELATIONSHIPS, NAMELY,
WHETHER IN THE CONTEXT OF THE MARKET STRUCTURE OF THIS INDUSTRY, THESE
TERRITORIAL RESTRAINTS ARE REASONABLE BUSINESS PRACTICES, GIVEN THE
TRUE PURPOSES OF THE ANTITRUST LAWS.  SEE WHITE MOTOR CO., SUPRA;
SANDURA CO. V. FTC, 339 F.2D 847.  IT IS TRUE THAT IN THIS CASE THE
SHAREHOLDERS OF SEALY ARE THE LICENSEES.  SUCH A RELATIONSHIP NO DOUBT
REQUIRES SPECIAL SCRUTINY.  (FN3)  BUT I CANNOT AGREE THAT THIS FACT BY
ITSELF AUTOMATICALLY REQUIRES STRIKING DOWN SEALY'S POLICY OF
TERRITORIALIZATION.  THE CORRECT APPROACH, IN MY VIEW, IS TO CONSIDER
SEALY'S CORPORATE STRUCTURE AND DECISION MAKING PROCESS AS ONE (BUT
ONLY ONE) RELEVANT FACTOR IN DETERMINING WHETHER THE RESTRAINT IS AN
UNREASONABLE ONE.  COMPARE UNITED STATES V. PENN-OLIN CHEM.  CO., 378
U.S. 158, 170. 

THE COURT IN REACHING ITS RESULT RELIES HEAVILY ON THE FACT THAT
THESE TERRITORIAL LIMITATIONS WERE PART OF "AN 'AGGREGATION OF TRADE
RESTRAINTS,'" ANTE, P. 354, BECAUSE THE DISTRICT COURT HAS HELD THAT
APPELLEE DID VIOLATE THE SHERMAN ACT BY ENGAGING IN UNLAWFUL PRICE
FIXING.  "THE TERRITORIAL RESTRAINTS," THE COURT SAYS, "WERE A PART OF
THE UNLAWFUL PRICE-FIXING AND POLICING," ANTE, P. 356.  NOTHING,
HOWEVER, IN THE FINDINGS OF THE DISTRICT COURT SUPPORTS THIS
CONCLUSION.  INDEED, THE OPPOSITE CONCLUSION IS THE MORE TENABLE ONE
SINCE THE DISTRICT COURT THAT FOUND SEALY GUILTY OF PRICE FIXING FOUND
AT THE SAME TIME THAT IT HAD NOT UNLAWFULLY CONSPIRED TO ALLOCATE
TERRITORIES.  THE GOVERNMENT HAS NOT CONTENDED HERE THAT IT IS ENTITLED
TO AN INJUNCTION AGAINST TERRITORIAL RESTRICTIONS AS A PART OF ITS
RELIEF IN THE PRICE-FIXING ASPECT OF THE CASE.  THE PRICE-FIXING ISSUE
WAS NOT APPEALED TO THIS COURT, AND WE CAN ASSUME THAT THE GOVERNMENT
WILL OBTAIN ADEQUATE AND EFFECTIVE INJUNCTIVE RELIEF FROM THE DISTRICT
COURT.  FOR THESE REASONS THE COURT'S "AGGREGATION OF TRADE RESTRAINTS"
THEORY SEEMS TO ME ILL-CONCEIVED. 

I FIND NOTHING IN THE COURT'S OPINION THAT PERSUADES ME TO ABANDON
THE TRADITIONAL "RULE OF REASON" APPROACH TO THIS TYPE OF BUSINESS
PRACTICE IN THE CONTEXT OF THE FACTS FOUND BY THE TRIAL COURT.  THE
DISTRICT COURT, HOWEVER, MADE NO FINDINGS IN RESPECT TO THIS THEORY FOR
JUDGING LIABILITY SINCE THE GOVERNMENT INSISTED ON TRYING THE CASE IN
PER SE TERMS, ATTEMPTING TO PROVE ONLY A HORIZONTAL CONSPIRACY. 
ALTHOUGH SEALY DID INTRODUCE SOME EVIDENCE CONCERNING THE BEDDING
INDUSTRY, THE TERRITORIALIZATION ISSUE WAS NOT TRIED IN THE TERMS OF
THE REASONABLENESS OF THE TERRITORIAL RESTRICTIONS.  A MOTION TO
SUPPRESS SEALY'S SUBPOENA SEEKING DISCOVERY WITH RESPECT TO ONE OF ITS
LEADING COMPETITORS WAS SUCCESSFULLY SUPPORTED BY THE GOVERNMENT, (FN4)
AND NO EVIDENCE DIRECTLY AIMED AT JUSTIFYING TERRITORIAL LIMITATIONS AS
A REASONABLE METHOD OF COMPETITION IN THE BEDDING INDUSTRY WAS TAKEN. 
ACCORDINGLY, THE DISTRICT COURT MADE NO FINDINGS AS TO SUCH
JUSTIFICATION. 

ALTHOUGH IN THE NORMAL COURSE OF THINGS I WOULD HAVE VOTED TO REMAND
THE CASE FOR FURTHER PROCEEDINGS AND FINDINGS UNDER THE CORRECT RULES
OF LAW, I BELIEVE THAT SINCE THE GOVERNMENT DELIBERATELY CHOSE TO STAND
ON ITS PER SE APPROACH, AND DID NOT PREVAIL, IT SHOULD NOT BE ABLE TO
RELITIGATE THE CASE ON AN ALTERNATIVE THEORY, ESPECIALLY WHEN IT
OPPOSED APPELLEE'S EFFORTS TO PRESENT THE CASE THAT WAY. 

I WOULD AFFIRM THE DISMISSAL OF THIS ASPECT OF THE CASE BY THE
DISTRICT COURT. 

FN1  COMPARE UNITED STATES V. GENERAL MOTORS, 384 U.S. 127, WHERE THE
UNDISPUTED FACTS AS FOUND BY THE DISTRICT COURT, ID., AT 140-141,
PROVED A HORIZONTAL CONSPIRACY AMONG CHEVROLET DEALERS TO INITIATE AND
POLICE A BOYCOTT OF SALES BY DEALERS TO DISCOUNT HOUSES.  IT IS
PRECISELY BECAUSE NO SUCH HORIZONTAL IMPETUS WAS SHOWN TO EXIST HERE
THAT I VIEW THIS CASE DIFFERENTLY.  SEE MY OPINION CONCURRING IN THE
RESULT IN GENERAL MOTORS, 384 U.S., AT 148. 

FN2  THE DISTRICT COURT MADE NO FINDINGS AS TO THE POSITION OF SEALY
IN THE BEDDING INDUSTRY, BUT ON THE BASIS OF TESTIMONY INTRODUCED AND
NOT SERIOUSLY CONTRAVENED IT APPEARS THAT SEALY PRODUCTS ARE BY NO
MEANS THE LARGEST SELLING BEDDING PRODUCTS, THAT SEALY MANUFACTURERS
HAVE MANY COMPETITORS BOTH NATIONWIDE AND LOCAL, AND THAT ADVERTISING -
PARTICULARLY NATIONWIDE ADVERTISING - IS AN IMPORTANT COMPETITIVE
FACTOR IN THE INDUSTRY. 

FN3  THE SEALY TRADEMARK WAS ORIGINALLY OWNED BY SUGAR LAND
INDUSTRIES, AND ITS PRODUCTS WERE MANUFACTURED BY A SUBSIDIARY, SEALY
MATTRESS CO. IN THE 1920'S INDEPENDENT MANUFACTURERS WERE LICENSED TO
PRODUCE SEALY PRODUCTS, AND IN 1925 SUGAR LAND SOLD THE TRADEMARKS TO A
NEW CORPORATION, SEALY CORP., OWNED BY ONE E.E. EDWARDS AND THE VARIOUS
SEALY LICENSEES.  IN 1933, WHEN THE ECONOMIC DEPRESSION ELIMINATED A
NUMBER OF SEALY PRODUCERS, THE CORPORATION WAS REORGANIZED INTO THE
PRESENT SEALY, INC. AT PRESENT THERE ARE ABOUT 30 LICENSEES OWNING
APPROXIMATELY 90% OF THE STOCK.  THIS JOINT-VENTURE APPROACH WAS
CREATED AND MAINTAINED, THE DISTRICT COURT FOUND, "FOR ENTIRELY
LEGITIMATE BUSINESS PURPOSES," SUCH AS OBTAINING THE BENEFITS "OF JOINT
PURCHASING, RESEARCH, ENGINEERING, ADVERTISING AND MERCHANDISING." 
FINDING 119. 

FN4  SEE UNITED STATES V. SERTA ASSOCIATES, INC., 29 F.R.D. 136,
WHERE IN A COMPANION ACTION AGAINST ANOTHER LICENSOR OF BEDDING
PRODUCTS A SIMILAR SUBPOENA WAS QUASHED AFTER IT WAS OPPOSED BY THE
GOVERNMENT.  THE DISTRICT COURT THERE NOTED:  "THE COMPLAINT ALLEGES
PRICE FIXING AND MARKET ALLOCATIONS BY SERTA, WHICH IT HAS DENIED. 
DEFENDANT ALLEGES THE AGREEMENTS MADE WERE REASONABLE ANCILLARY
RESTRAINTS, VALID UNDER THE SHERMAN ACT, AND THE EVIDENCE SOUGHT BY
THIS SUBPOENA WOULD COMPLETELY CORROBORATE THE REASONABLENESS.  THE
PLAINTIFF, THE GOVERNMENT, HAS ALSO FILED A BRIEF SUPPORTIVE OF THE
MOTION TO QUASH THE SUBPOENA.  IT ASSERTS THAT THE COMPLAINT RAISES PER
SE VIOLATIONS OF THE SHERMAN ACT WHICH FACT RENDERS COMPLETELY
IRRELEVANT THE SUBPOENAED MATERIAL, TENDING TO CONFIRM THE
REASONABLENESS OF DEFENDANT'S CONDUCT." 
..END :























UNITED STATES V. ARNOLD, SCHWINN & CO. 388 U.S. 365 


NO. 25.  ARGUED APRIL 20, 1967.  - DECIDED JUNE 12, 1967.  - 237 F.
SUPP. 323, REVERSED AND REMANDED. 


THIS IS A CIVIL ANTITRUST SUIT UNDER SEC 1 OF THE SHERMAN ACT IN WHICH
APPELLEES WERE CHARGED BY THE GOVERNMENT WITH A CONTINUING CONSPIRACY,
WITH OTHERS, TO FIX PRICES, TO ALLOCATE EXCLUSIVE TERRITORIES TO
WHOLESALERS AND JOBBERS, AND TO CONFINE MERCHANDISE TO FRANCHISED
DEALERS.  APPELLEES ARE ARNOLD, SCHWINN & CO. (SCHWINN), A LEADING
BICYCLE MANUFACTURER, AND AN ASSOCIATION OF DISTRIBUTORS HANDLING
SCHWINN PRODUCTS.  IN 1951, SCHWINN HAD THE LARGEST SHARE, 22.5%, OF
THE U.S. BICYCLE MARKET.  BY 1961 ITS SHARE HAD FALLEN TO 12.8%,
ALTHOUGH DOLLAR AND UNIT SALES HAD RISEN.  THE MARKET LEADER, WITH
22.8% IN 1961, WHICH HAD INCREASED ITS SHARE FROM 11.6% IN 1951, SELLS
MAINLY TO MASS MERCHANDISERS.  SCHWINN SELLS TO (1) DISTRIBUTORS, (2)
RETAILERS BY MEANS OF CONSIGNMENT OR AGENCY ARRANGEMENTS WITH
DISTRIBUTORS, AND (3) RETAILERS UNDER THE SCHWINN PLAN, WHICH INVOLVES
DIRECT SHIPMENT TO RETAILERS WITH SCHWINN INVOICING THE DEALERS,
EXTENDING CREDIT, AND PAYING A COMMISSION TO THE DISTRIBUTOR TAKING THE
ORDER.  SCHWINN ASSIGNED SPECIFIC TERRITORIES TO EACH OF ITS WHOLESALE
DISTRIBUTORS WHO WERE INSTRUCTED TO SELL ONLY TO FRANCHISED DEALERS IN
THEIR RESPECTIVE TERRITORIES.  THE DISTRICT COURT REJECTED THE CHARGE
OF PRICE-FIXING, HELD THAT THE SCHWINN FRANCHISING SYSTEM WAS FAIR AND
REASONABLE, BUT THAT THE TERRITORIAL LIMITATION WAS UNLAWFUL PER SE AS
RESPECTS PRODUCTS SOLD BY SCHWINN TO ITS DISTRIBUTORS.  THE UNITED
STATES DID NOT APPEAL FROM THE REJECTION OF THE PRICE-FIXING CHARGE,
AND APPELLEES DID NOT APPEAL FROM THE ORDER INVALIDATING RESTRAINTS ON
RESALE BY DISTRIBUTORS WHO PURCHASE PRODUCTS FROM SCHWINN.  THE
GOVERNMENT REQUESTS THAT THE LIMITATIONS ON DISTRIBUTION WHERE THE
DISTRIBUTOR ACTS AS AGENT OR CONSIGNEE OF SCHWINN OR ON THE SCHWINN
PLAN BE CONSIDERED UNDER THE "RULE OF REASON" AND THAT THEY BE HELD TO
CONSTITUTE AN UNREASONABLE RESTRAINT OF TRADE.  HELD: 

1.  THE PROMOTION OF SCHWINN'S SELF-INTEREST ALONE DOES NOT INVOKE
THE RULE OF REASON TO IMMUNIZE OTHERWISE ILLEGAL CONDUCT.  "IT IS ONLY
IF THE CONDUCT IS NOT UNLAWFUL IN ITS IMPACT IN THE MARKETPLACE OR IF
THE SELF-INTEREST COINCIDES WITH THE STATUTORY CONCERN WITH THE
PRESERVATION AND PROMOTION OF COMPETITION THAT PROTECTION IS
ACHIEVED."  P. 375. 

2.  IT IS "ILLOGICAL AND INCONSISTENT TO FORBID TERRITORIAL
LIMITATIONS ON RESALES BY DISTRIBUTORS WHERE THE DISTRIBUTOR OWNS THE
GOODS  ...  AND, AT THE SAME TIME, TO EXONERATE ARRANGEMENTS WHICH
REQUIRE DISTRIBUTORS TO CONFINE RESALES OF THE GOODS THEY HAVE BOUGHT
TO 'FRANCHISED' RETAILERS."  PP. 377-378. 

(A)  THE DECREE SHOULD BE REVISED ON REMAND TO "ENJOIN ANY LIMITATION
UPON THE FREEDOM OF DISTRIBUTORS TO DISPOSE OF THE SCHWINN PRODUCTS,
WHICH THEY HAVE BOUGHT FROM SCHWINN, WHERE AND TO WHOMEVER THEY
CHOOSE."  P. 378. 

(B)  SINCE THIS PRINCIPLE IS EQUALLY APPLICABLE TO SALES TO
RETAILERS, "THE DECREE SHOULD SIMILARLY ENJOIN THE MAKING OF ANY SALES
TO RETAILERS UPON ANY CONDITION, AGREEMENT OR UNDERSTANDING LIMITING
THE RETAILER'S FREEDOM AS TO WHERE AND TO WHOM IT WILL RESELL THE
PRODUCTS."  P. 378. 

3.  "WHERE THE MANUFACTURER RETAINS TITLE, DOMINION, AND RISK WITH
RESPECT TO THE PRODUCT AND THE POSITION AND FUNCTION OF THE DEALER IN
QUESTION ARE, IN FACT, INDISTINGUISHABLE FROM THAT OF AN AGENT OR
SALESMAN OF THE MANUFACTURER, IT IS ONLY IF THE IMPACT OF THE
CONFINEMENT IS 'UNREASONABLY' RESTRICTIVE OF COMPETITION THAT A
VIOLATION OF SEC 1" OF THE SHERMAN ACT RESULTS FROM SUCH CONFINEMENT,
ABSENT CULPABLE PRICE-FIXING.  PP. 380-381. 

(A)  WHILE A MANUFACTURER'S ADOPTION "OF AN AGENCY OR CONSIGNMENT
PATTERN AND THE SCHWINN TYPE OF RESTRICTIVE DISTRIBUTION SYSTEM" WOULD
NOT BE "JUSTIFIED IN ANY AND ALL CIRCUMSTANCES BY THE PRESENCE OF THE
COMPETITION OF MASS MERCHANDISERS AND BY THE DEMONSTRATED NEED OF THE
FRANCHISE SYSTEM TO MEET THAT COMPETITION," IN THE ABSENCE OF PRICE
FIXING AND WITH AN ADEQUATE SOURCE OF ALTERNATIVE PRODUCTS TO MEET THE
NEEDS OF THE UNFRANCHISED, THE VERTICALLY IMPOSED DISTRIBUTION
RESTRAINTS MAY NOT BE HELD TO BE PER SE VIOLATIONS OF THE SHERMAN ACT. 
P. 381. 

(B)  AS LONG AS SCHWINN RETAINS ALL INDICIA OF OWNERSHIP AND THE
DEALERS' ACTIVITIES ARE INDISTINGUISHABLE FROM THOSE OF AGENTS OR
SALESMEN, SCHWINN'S FRANCHISING OF RETAILERS AND CONFINEMENT OF RETAIL
SALES TO THEM DO NOT CONSTITUTE AN "UNREASONABLE" RESTRAINT OF TRADE. 
P. 381. 

UNITED STATES V. ARNOLD, SCHWINN & CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS APPEAL TO REVIEW THE JUDGMENT OF THE
DISTRICT COURT IN A CIVIL ANTITRUST CASE ALLEGING VIOLATIONS OF SEC 1
OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. SEC 1.  DIRECT
APPEAL IS AUTHORIZED BY SEC 2 OF THE EXPEDITING ACT, 32 STAT. 823, AS
AMENDED, 15 U.S.C. SEC 29.  THE COMPLAINT CHARGED A CONTINUING
CONSPIRACY SINCE 1952 BETWEEN DEFENDANTS AND OTHER ALLEGED CO
CONSPIRATORS INVOLVING PRICE FIXING, ALLOCATION OF EXCLUSIVE
TERRITORIES TO WHOLESALERS AND JOBBERS, AND CONFINEMENT OF MERCHANDISE
TO FRANCHISED DEALERS.  NAMED AS DEFENDANTS WERE ARNOLD, SCHWINN &
COMPANY ("SCHWINN"), THE SCHWINN CYCLE DISTRIBUTORS ASSOCIATION
("SCDA"), AND B.F. GOODRICH COMPANY ("B.F. GOODRICH").  (FN1) 

AT TRIAL, THE UNITED STATES ASSERTED THAT NOT ONLY THE PRICE FIXING
BUT ALSO SCHWINN'S METHODS OF DISTRIBUTION WERE ILLEGAL PER SE UNDER
SEC 1 OF THE SHERMAN ACT.  THE TRIAL LASTED 70 DAYS.  THE EVIDENCE,
LARGELY OFFERED BY APPELLEES, ELABORATELY SETS FORTH INFORMATION AS TO
THE TOTAL MARKET INTERACTION AND INTERBRAND COMPETITION, AS WELL AS THE
DISTRIBUTION PROGRAM AND PRACTICES. 

THE DISTRICT COURT REJECTED THE CHARGE OF PRICE FIXING.  WITH RESPECT
TO THE CHARGES OF ILLEGAL DISTRIBUTION PRACTICES, THE COURT HELD THAT
THE TERRITORIAL LIMITATION WAS UNLAWFUL PER SE AS RESPECTS PRODUCTS
SOLD BY SCHWINN TO ITS DISTRIBUTORS; BUT THAT THE LIMITATION WAS NOT
UNLAWFUL INSOFAR AS IT WAS INCIDENT TO SALES BY SCHWINN ITSELF TO
FRANCHISED RETAILERS WHERE THE WHOLESALER OR JOBBER (HEREINAFTER
REFERRED TO AS THE DISTRIBUTOR) FUNCTIONED AS AGENT OR CONSIGNEE,
INCLUDING DISTRIBUTION PURSUANT TO THE "SCHWINN PLAN" DESCRIBED BELOW. 

THE UNITED STATES DID NOT APPEAL FROM THE DISTRICT COURT'S REJECTION
OF ITS PRICE-FIXING CHARGE.  THE APPELLEES DID NOT APPEAL FROM THE
FINDINGS AND ORDER INVALIDATING RESTRAINTS ON RESALE BY DISTRIBUTORS
WHO PURCHASE PRODUCTS FROM SCHWINN. 

IN THIS COURT, THE UNITED STATES HAS ABANDONED ITS CONTENTION THAT
THE DISTRIBUTION LIMITATIONS ARE ILLEGAL PER SE.  INSTEAD WE ARE ASKED
TO CONSIDER THESE LIMITATIONS IN LIGHT OF THE "RULE OF REASON," AND, ON
THE BASIS OF THE VOLUMINOUS RECORD BELOW, TO CONCLUDE THAT THE
LIMITATIONS ARE THE PRODUCT OF "AGREEMENT" BETWEEN SCHWINN AND ITS
WHOLESALE AND RETAIL DISTRIBUTORS AND THAT THEY CONSTITUTE AN
UNREASONABLE RESTRAINT OF TRADE. 

APPELLEE SCHWINN IS A FAMILY-OWNED BUSINESS WHICH FOR MANY YEARS HAS
BEEN ENGAGED IN THE MANUFACTURE AND SALE OF BICYCLES AND SOME LIMITED
BICYCLE PARTS AND ACCESSORIES.  (FN2)  APPELLEE SCDA IS AN ASSOCIATION
OF DISTRIBUTORS HANDLING SCHWINN BICYCLES AND OTHER PRODUCTS.  THE
CHALLENGED MARKETING PROGRAM WAS INSTITUTED IN 1952.  IN 1951 SCHWINN
HAD THE LARGEST SINGLE SHARE OF THE UNITED STATES BICYCLE MARKET -
22.5%.  IN 1961 SCHWINN'S SHARE OF MARKET HAD FALLEN TO 12.8% ALTHOUGH
ITS DOLLAR AND UNIT SALES HAD RISEN SUBSTANTIALLY.  IN THE SAME PERIOD,
A COMPETITIOR, MURRAY OHIO MANUFACTURING COMPANY, WHICH IS NOW THE
LEADING UNITED STATES BICYCLE PRODUCER, INCREASED ITS MARKET SHARE FROM
11.6% IN 1951 TO 22.8% IN 1961.  MURRAY SELLS PRIMARILY TO SEARS,
ROEBUCK & COMPANY AND OTHER MASS MERCHANDISERS.  BY 1962 THERE WERE
NINE BICYCLE PRODUCERS IN THE NATION, OPERATING 11 PLANTS.  IMPORTS OF
BICYCLES AMOUNTED TO 29.7% OF SALES IN 1961. 

FORTY PERCENT OF ALL BICYCLES ARE DISTRIBUTED BY NATIONAL CONCERNS
WHICH OPERATE THEIR OWN STORES AND FRANCHISE OTHERS.  ANOTHER 20% ARE
SOLD BY GIANT CHAINS AND MASS MERCHANDISERS LIKE SEARS AND MONTGOMERY
WARD & COMPANY.  SEARS AND WARD TOGETHER ACCOUNT FOR 20% OF ALL BICYCLE
SALES.  MOST OF THESE BICYCLES ARE SOLD UNDER PRIVATE LABEL.  ABOUT 30%
OF ALL BICYCLES ARE DISTRIBUTED BY CYCLE JOBBERS WHICH SPECIALIZE IN
THE TRADE, AND THE REMAINING 10% BY HARDWARE AND GENERAL STORES. 

SCHWINN SELLS ITS PRODUCTS PRIMARILY TO OR THROUGH 22 WHOLESALE
DISTRIBUTORS, WITH SALES TO THE PUBLIC BEING MADE BY A LARGE NUMBER OF
RETAILERS.  IN ADDITION, IT SELLS ABOUT 11% OF ITS TOTAL TO B.F.
GOODRICH FOR RESALE IN B.F. GOODRICH RETAIL OR FRANCHISED STORES. 
THERE ARE ABOUT 5,000 TO 6,000 RETAIL DEALERS IN THE UNITED STATES
WHICH ARE BICYCLE SPECIALTY SHOPS, GENERALLY ALSO PROVIDING SERVICING. 
ABOUT 84% OF SCHWINN'S SALES ARE THROUGH SUCH SPECIALIZED DEALERS. 
SCHWINN SELLS ONLY UNDER THE SCHWINN LABEL, NEVER UNDER PRIVATE LABEL,
WHILE ABOUT 64% OF ALL BICYCLES ARE SOLD UNDER PRIVATE LABEL. 
DISTRIBUTORS AND RETAILERS HANDLING SCHWINN BICYCLES ARE NOT RESTRICTED
TO THE HANDLING OF THAT BRAND.  THEY MAY AND ORDINARILY DO SELL A
VARIETY OF BRANDS. 

THE UNITED STATES DOES NOT CONTEND THAT THERE IS IN THIS CASE ANY
RESTRAINT ON INTERBRAND COMPETITION, NOT DOES IT ATTEMPT TO SUSTAIN ITS
CHARGE BY REFERENCE TO THE MARKET FOR BICYCLES AS A WHOLE.  INSTEAD, IT
INVITES US TO CONFINE OUR ATTENTION TO THE INTRABRAND EFFECT OF THE
CONTESTED RESTRICTIONS.  IT URGES US TO DECLARE THAT THE METHOD OF
DISTRIBUTION OF A SINGLE BRAND OF BICYCLES, AMOUNTING TO LESS THAN ONE
SEVENTH OF THE MARKET, CONSTITUTES AN UNREASONABLE RESTRAINT OF TRADE
OR COMMERCE AMONG THE SEVERAL STATES. 

SCHWINN'S PRINCIPAL METHODS OF SELLING ITS BICYCLES ARE AS FOLLOWS:
(1) SALES TO DISTRIBUTORS, PRIMARILY CYCLE DISTRIBUTORS, B.F. GOODRICH
AND HARDWARE JOBBERS; (2) SALES TO RETAILERS BY MEANS OF CONSIGNMENT OR
AGENCY ARRANGEMENTS WITH DISTRIBUTORS; AND (3) SALES TO RETAILERS UNDER
THE SO-CALLED SCHWINN PLAN WHICH INVOLVES DIRECT SHIPMENT BY SCHWINN TO
THE RETAILER WITH SCHWINN INVOICING THE DEALERS, EXTENDING CREDIT, AND
PAYING A COMMISSION TO THE DISTRIBUTOR TAKING THE ORDER.  SCHWINN FAIR
TRADED CERTAIN OF ITS MODELS AT RETAIL IN STATES PERMITTING THIS, AND
SUGGESTED RETAIL PRICES FOR ALL OF ITS BICYCLES IN ALL STATES.  DURING
THE 1952-1962 PERIOD, AS THE DISTRICT COURT FOUND, "WELL OVER HALF OF
THE BICYCLES SOLD BY SCHWINN HAVE BEEN SOLD DIRECT TO THE RETAIL DEALER
(NOT TO A CYCLE DISTRIBUTOR) BY MEANS OF SCHWINN PLAN SALES AND
CONSIGNMENT AND AGENCY SALES."  LESS THAN HALF WERE SOLD TO
DISTRIBUTORS.  (FN3) 

AFTER WORLD WAR II, SCHWINN HAD BEGUN STUDYING AND REVAMPING ITS
DISTRIBUTION PATTERN.  AS OF 1951-1952, IT HAD REDUCED ITS MAILING LIST
FROM ABOUT 15,000 RETAIL OUTLETS TO ABOUT 5,500.  IT INSTITUTED THE
PRACTICE OF FRANCHISING APPROVED RETAIL OUTLETS.  THE FRANCHISE DID NOT
PREVENT THE RETAILER FROM HANDLING OTHER BRANDS, BUT IT DID REQUIRE THE
RETAILER TO PROMOTE SCHWINN BICYCLES AND TO GIVE THEM AT LEAST EQUAL
PROMINENCE WITH COMPETING BRANDS.  THE NUMBER OF FRANCHISED DEALERS IN
ANY AREA WAS LIMITED, AND A RETAILER WAS FRANCHISED ONLY AS TO A
DESIGNATED LOCATION OR LOCATIONS.  EACH FRANCHISED DEALER WAS TO
PURCHASE ONLY FROM OR THROUGH THE DISTRIBUTOR AUTHORIZED TO SERVE THAT
PARTICULAR AREA.  HE WAS AUTHORIZED TO SELL ONLY TO CONSUMERS, AND NOT
TO UNFRANCHISED RETAILERS.  THE DISTRICT COURT FOUND THAT WHILE EACH
SCHWINN FRANCHISED RETAILER "KNOWS THAT HE IS AN UNRESTRICTED RETAIL
DEALER, FREE TO SELL AT HIS OWN PRICE TO ANY PERSON WHO WANTS TO BUY ON
A RETAIL BASIS  ...  .  HE KNOWS ALSO THAT HE IS NOT A WHOLESALER AND
THAT HE CANNOT SELL AS A WHOLESALER OR ACT AS AN AGENT FOR SOME OTHER
UNFRANCHISED DEALER, SUCH AS A DISCOUNT HOUSE RETAILER  ...  .  WHEN HE
ACTS AS SUCH AN AGENT HE SUBJECTS HIS FRANCHISE TO CANCELLATION AT WILL
BY SCHWINN." 

SCHWINN ASSIGNED SPECIFIC TERRITORIES TO EACH OF ITS 22 WHOLESALE
CYCLE DISTRIBUTORS.  THESE DISTRIBUTORS WERE INSTRUCTED TO SELL ONLY TO
FRANCHISED SCHWINN ACCOUNTS AND ONLY IN THEIR RESPECTIVE TERRITORIES
WHICH WERE SPECIFICALLY DESCRIBED AND ALLOCATED ON AN EXCLUSIVE BASIS. 
THE DISTRICT COURT FOUND "THAT CERTAIN CYCLE DISTRIBUTORS HAVE IN FACT
NOT COMPETED WITH EACH OTHER  ...  AND THAT IN SO DOING THEY HAVE
CONSPIRED WITH SCHWINN TO UNREASONABLY RESTRAIN COMPETITION CONTRARY TO
THE PROVISIONS OF SECTION 1 OF THE SHERMAN ACT."  THE COURT, HOWEVER,
RESTRICTED THIS FINDING AND ITS CONSEQUENT ORDER TO TRANSACTIONS IN
WHICH THE DISTRIBUTOR PURCHASED THE BICYCLES FROM SCHWINN FOR RESALE,
AS DISTINGUISHED FROM SALES BY THE DISTRIBUTOR AS AGENT OR CONSIGNEE OF
SCHWINN OR ON THE SCHWINN PLAN.  THE UNITED STATES URGES THAT THIS
COURT SHOULD REQUIRE REVISION OF THE DECREE IN THIS RESPECT TO FORBID
TERRITORIAL EXCLUSIVITY REGARDLESS OF THE TECHNICAL FORM BY WHICH THE
PRODUCTS ARE TRANSFERRED FROM SCHWINN TO THE RETAILER OR CONSUMER. 
(FN4) 

THE DISTRICT COURT REJECTED THE GOVERNMENT'S CONTENTION THAT SCHWINN
HAD IN FACT CANCELED THE FRANCHISES OF SOME RETAILERS BECAUSE OF SALES
TO DISCOUNT HOUSES OR OTHER UNFRANCHISED DEALERS, NOR DID IT FIND THAT
DISTRIBUTORS HAVE BEEN CUT OFF BECAUSE OF SALES TO UNFRANCHISED
RETAILERS OR VIOLATION OF TERRITORIAL LIMITATIONS.  THE UNITED STATES
URGES THAT THIS IS "CLEARLY ERRONEOUS."  IN ANY EVENT, IT IS CLEAR AND
ENTIRELY CONSISTENT WITH THE DISTRICT COURT'S FINDINGS THAT SCHWINN HAS
BEEN "FIRM AND RESOLUTE" IN INSISTING UPON OBSERVANCE OF TERRITORIAL
AND CUSTOMER LIMITATIONS BY ITS BICYCLE DISTRIBUTORS AND UPON CONFINING
SALES BY FRANCHISED RETAILERS TO CONSUMERS, AND THAT SCHWINN'S
"FIRMNESS" IN THESE RESPECTS WAS GROUNDED UPON THE COMMUNICATED DANGER
OF TERMINATION.  OUR ANALYSIS WILL EMBRACE THIS CONCLUSION, RATHER THAN
THE FINDING WHICH IS URGED BY THE GOVERNMENT AND WHICH WAS REFUSED BY
THE TRIAL COURT THAT SCHWINN ACTUALLY TERMINATED RETAIL FRANCHISES OR
CUT OFF DISTRIBUTORS FOR THE SUGGESTED REASONS. 

WE COME, THEN, TO THE LEGAL ISSUES IN THIS CASE.  WE ARE HERE
CONFRONTED WITH CHALLENGED VERTICAL RESTRICTIONS AS TO TERRITORY AND
DEALERS.  THE SOURCE OF THE RESTRICTIONS IS THE MANUFACTURER.  THESE
ARE NOT HORIZONTAL RESTRAINTS, IN WHICH THE ACTORS ARE DISTRIBUTORS
WITH OR WITHOUT THE MANUFACTURER'S PARTICIPATION.  WE HAVE HELD IN SUCH
A CASE, WHERE THE PURPOSE WAS TO PREVENT THE DISTRIBUTION OF
AUTOMOBILES TO OR BY "DISCOUNTERS," THAT A "CLASSIC CONSPIRACY IN
RESTRAINT OF TRADE" RESULTS.  UNITED STATES V. GENERAL MOTORS CORP.,
384 U.S. 127 (1966); SEE ALSO KLOR'S, INC. V. BROADWAY-HALE STORES,
INC., 359 U.S. 207 (1959); TIMKEN ROLLER BEARING CO. V. UNITED STATES,
341 U.S. 593 (1951).  NOR IS THIS A CASE OF TERRITORIAL OR DEALER
RESTRICTIONS ACCOMPANIED BY PRICE FIXING, FOR HERE THE ISSUE OF
UNLAWFUL PRICE FIXING WAS TENDERED, LITIGATED, DECIDED AGAINST THE
APPELLANT, AND APPELLANT HAS NOT APPEALED.  IF IT WERE OTHERWISE - IF
THERE WERE HERE A FINDING THAT THE RESTRICTIONS WERE PART OF A SCHEME
INVOLVING UNLAWFUL PRICE FIXING, THE RESULT WOULD BE A PER SE VIOLATION
OF THE SHERMAN ACT.  UNITED STATES V. SEALY, INC., ANTE, P. 350; UNITED
STATES V. BAUSCH & LOMB CO., 321 U.S. 707, 724 (1944).  BECAUSE OF THE
POSTURE OF THE CASE AND THE FAILURE OF THE GOVERNMENT TO URGE THE
POINT, WE DO NOT HERE PAUSE TO CONSIDER WHETHER A CASE MIGHT BE
PRESENTED, SHORT OF UNLAWFUL PRICE FIXING, IN WHICH THE ACTIVITIES OF
THE MANUFACTURER TO AFFECT RESALE PRICES - WHETHER STYLED PRICE
"MAINTENANCE" OR "STABILIZATION" OR OTHERWISE - WOULD FATALLY INFECT
VERTICAL CUSTOMER RESTRICTIONS SO AS TO REQUIRE A CONCLUSION OF PER SE
VIOLATION.  THE GOVERNMENT DOES NOT CONTEND THAT A PER SE VIOLATION OF
THE SHERMAN ACT IS PRESENTED BY THE PRACTICES WHICH ARE INVOLVED IN
THIS APPEAL (THAT IS, WITHOUT REFERENCE TO THE PRACTICE WHICH THE LOWER
COURT ENJOINED AND WHICH IS NOT BEFORE US).  ACCORDINGLY, WE ARE
REMITTED TO AN APPRAISAL OF THE MARKET IMPACT OF THESE PRACTICES. 

IN WHITE MOTOR CO. V. UNITED STATES, 372 U.S. 253 (1963), THIS COURT
REFUSED TO AFFIRM SUMMARY JUDGMENT AGAINST THE MANUFACTURER EVEN THOUGH
THERE WERE NOT ONLY VERTICAL RESTRICTIONS AS TO TERRITORY AND CUSTOMER
SELECTION BUT ALSO UNLAWFUL PRICE FIXING.  THE COURT HELD THAT THERE
WAS NO SHOWING THAT THE PRICE FIXING WAS "AN INTEGRAL PART OF THE WHOLE
DISTRIBUTION SYSTEM" AND ACCORDINGLY IT DECLINED TO OUTLAW THE SYSTEM
BECAUSE OF THE POSSIBILITY THAT A TRIAL LAYING BARE "THE ECONOMIC AND
BUSINESS STUFF OUT OF WHICH THESE ARRANGEMENTS EMERGE" MIGHT
DEMONSTRATE THEIR REASONABLENESS.  ID., AT 263.  SO HERE WE MUST LOOK
TO THE SPECIFICS OF THE CHALLENGED PRACTICES AND THEIR IMPACT UPON THE
MARKETPLACE IN ORDER TO MAKE A JUDGMENT AS TO WHETHER THE RESTRAINT IS
OR IS NOT "REASONABLE" IN THE SPECIAL SENSE IN WHICH SEC 1 OF THE
SHERMAN ACT MUST BE READ FOR PURPOSES OF THIS TYPE OF INQUIRY.  CHICAGO
BOARD OF TRADE V. UNITED STATES, 246 U.S. 231, 238 (1918); STANDARD OIL
CO. V. UNITED STATES, 221 U.S. 1, 51 (1911); APEX HOSIERY V. LEADER,
310 U.S. 469, 498 (1940).  (FN5) 

WE FIRST OBSERVE THAT THE FACTS OF THIS CASE DO NOT COME WITHIN THE
SPECIFIC ILLUSTRATIONS WHICH THE COURT IN WHITE MOTOR ARTICULATED AS
POSSIBLE FACTORS RELEVANT TO A SHOWING THAT THE CHALLENGED VERTICAL
RESTRAINT IS SHELTERED BY THE RULE OF REASON BECAUSE IT IS NOT
ANTICOMPETITIVE.  SCHWINN WAS NOT A NEWCOMER, SEEKING TO BREAK INTO OR
STAY IN THE BICYCLE BUSINESS.  IT WAS NOT A "FAILING COMPANY."  ON THE
CONTRARY, AT THE INITIATION OF THESE PRACTICES, IT WAS THE LEADING
BICYCLE PRODUCER IN THE NATION.  SCHWINN CONTENDS, HOWEVER, AND THE
TRIAL COURT FOUND, THAT THE REASONS WHICH INDUCED IT TO ADOPT THE
CHALLENGED DISTRIBUTION PROGRAM WERE TO ENABLE IT AND THE SMALL,
INDEPENDENT MERCHANTS THAT MADE UP ITS CHAIN OF DISTRIBUTION TO COMPETE
MORE EFFECTIVELY IN THE MARKETPLACE.  SCHWINN SOUGHT A BETTER WAY OF
DISTRIBUTING ITS PRODUCT: A METHOD WHICH WOULD PROMOTE SALES, INCREASE
STABILITY OF ITS DISTRIBUTOR AND DEALER OUTLETS, AND AUGMENT PROFITS. 
BUT THIS ARGUMENT, APPEALING AS IT IS, IS NOT ENOUGH TO AVOID THE
SHERMAN ACT PROSCRIPTION; BECAUSE, IN A SENSE, EVERY RESTRICTIVE
PRACTICE IS DESIGNED TO AUGMENT THE PROFIT AND COMPETITIVE POSITION OF
ITS PARTICIPANTS.  PRICE FIXING DOES SO, FOR EXAMPLE, AND SO MAY A WELL
CALCULATED DIVISION OF TERRITORIES.  SEE UNITED STATES V. SOCONY-VACUUM
OIL CO., 310 U.S. 150 (1940).  THE ANTITRUST OUTCOME DOES NOT TURN
MERELY ON THE PRESENCE OF SOUND BUSINESS REASON OR MOTIVE.  HERE, FOR
EXAMPLE, IF THE TEST OF REASONABLENESS WERE MERELY WHETHER SCHWINN'S
RESTRICTIVE DISTRIBUTION PROGRAM AND PRACTICES WERE ADOPTED "FOR GOOD
BUSINESS REASONS" AND NOT MERELY TO INJURE COMPETITORS, OR IF THE
ANSWER TURNED UPON WHETHER IT WAS INDEED "GOOD BUSINESS PRACTICE," WE
SHOULD NOT QUARREL WITH SCHWINN'S ELOQUENT SUBMISSION OR THE FINDING OF
THE TRIAL COURT.  BUT OUR INQUIRY CANNOT STOP AT THAT POINT.  OUR
INQUIRY IS WHETHER, ASSUMING NONPREDATORY MOTIVES AND BUSINESS PURPOSES
AND THE INCENTIVE OF PROFIT AND VOLUME CONSIDERATIONS, THE EFFECT UPON
COMPETITION IN THE MARKETPLACE IS SUBSTANTIALLY ADVERSE.  THE PROMOTION
OF SELF-INTEREST ALONE DOES NOT INVOKE THE RULE OF REASON TO IMMUNIZE
OTHERWISE ILLEGAL CONDUCT.  IT IS ONLY IF THE CONDUCT IS NOT UNLAWFUL
IN ITS IMPACT IN THE MARKETPLACE OR IF THE SELF-INTEREST COINCIDES WITH
THE STATUTORY CONCERN WITH THE PRESERVATION AND PROMOTION OF
COMPETITION THAT PROTECTION IS ACHIEVED.  CHICAGO BOARD OF TRADE,
SUPRA, AT 238. 

ON THIS BASIS, RESTRAINTS AS TO TERRITORY OR CUSTOMERS, VERTICAL OR
HORIZONTAL, ARE UNLAWFUL IF THEY ARE "ANCILLARY TO THE PRICE-FIXING"
(WHITE MOTOR CO. V. UNITED STATES, SUPRA, AT 260) OR IF THE PRICE
FIXING IS "AN INTEGRAL PART OF THE WHOLE DISTRIBUTION SYSTEM."  (BAUSCH
& LOMB, SUPRA AT 720.)   IN THOSE SITUATIONS, IT IS NEEDLESS TO INQUIRE
FURTHER INTO COMPETITIVE EFFECT BECAUSE IT IS ESTABLISHED DOCTRINE
THAT, UNLESS PERMITTED BY STATUTE, THE FIXING OF PRICES AT WHICH OTHERS
MAY SELL IS ANTICOMPETITIVE, AND THE UNLAWFULNESS OF THE PRICE FIXING
INFECTS THE DISTRIBUTION RESTRICTIONS.  CF. SEALY, SUPRA, AND BAUSCH &
LOMB, SUPRA.  AT THE OTHER EXTREME, A MANUFACTURER OF A PRODUCT OTHER
AND EQUILAVENT BRANDS OF WHICH ARE READILY AVAILABLE IN THE MARKET MAY
SELECT HIS CUSTOMERS, AND FOR THIS PURPOSE HE MAY "FRANCHISE" CERTAIN
DEALERS TO WHOM, ALONE, HE WILL SELL HIS GOODS.  CF. UNITED STATES V.
COLGATE & CO., 250 U.S. 300 (1919).  IF THE RESTRAINT STOPS AT THAT
POINT - IF NOTHING MORE IS INVOLVED THAN VERTICAL "CONFINEMENT" OF THE
MANUFACTURER'S OWN SALES OF THE MERCHANDISE TO SELECTED DEALERS, AND IF
COMPETITIVE PRODUCTS ARE READILY AVAILABLE TO OTHERS, THE RESTRICTION,
ON THESE FACTS ALONE, WOULD NOT VIOLATE THE SHERMAN ACT.  IT IS WITHIN
THESE BOUNDARY LINES THAT WE MUST ANALYZE THE PRESENT CASE. 

THE DISTRICT COURT HERE ENJOINED APPELLEES FROM LIMITING THE
TERRITORY WITHIN WHICH ANY WHOLESALER OR JOBBER MAY SELL ANY SCHWINN
PRODUCT WHICH IT HAS PURCHASED.  IT HELD THAT THESE ARE AGREEMENTS TO
DIVIDE TERRITORY AND, AS SUCH, ARE PER SE VIOLATIONS OF SEC 1 OF THE
SHERMAN ACT.  THE COURT MADE CLEAR THAT IT CONFINED ITS ORDER TO
TRANSACTIONS IN WHICH THE DISTRIBUTOR PURCHASES FROM SCHWINN.  AS TO
CONSIGNMENT, AGENCY AND SCHWINN PLAN TRANSACTIONS, THE COURT HELD THAT,
IN THESE INSTANCES, "SCHWINN HAS A RIGHT TO ALLOCATE ITS AGENTS OR
SALESMEN TO A PARTICULAR TERRITORY."  THE COURT ALSO HELD THAT THE
FRANCHISING OF RETAILERS WAS REASONABLE IN VIEW OF THE COMPETITIVE
PROBLEM PRESENTED BY "GIANT" BICYCLE RETAILERS SUCH AS SEARS AND WARD
AND BY OTHER MASS MERCHANDISERS, AND IT DECLINED TO ENJOIN APPELLEES'
PRACTICES WITH RESPECT TO CONFINEMENT OF SALE BY DISTRIBUTORS OR
SCHWINN TO FRANCHISED RETAILERS, OR TO FORBID SCHWINN AND ITS
DISTRIBUTORS FROM CONTINUING TO PROHIBIT FRANCHISED RETAILERS FROM
SELLING TO DISCOUNT HOUSES OR OTHER UNFRANCHISED RETAILERS FOR RESALE
TO THE PUBLIC. 

AS NOTED ABOVE, APPELLEES HAVE NOT APPEALED FROM THE DISTRICT COURT'S
ORDER, AND, ACCORDINGLY, WE HAVE BEFORE US ONLY THE GOVERNMENT'S PLEAS:
(1) THAT THE DECREE SHOULD NOT BE CONFINED TO SALE TRANSACTIONS
BETWEEN SCHWINN AND WHOLESALERS BUT SHOULD REACH TERRITORIAL
RESTRICTIONS UPON DISTRIBUTORS WHETHER THEY ARE INCIDENT TO SALE AND
RESALE TRANSACTIONS OR TO CONSIGNMENT, AGENCY OR SCHWINN-PLAN
RELATIONSHIP BETWEEN SCHWINN AND THE DISTRIBUTORS; (2) THAT AGREEMENTS
REQUIRING DISTRIBUTORS TO LIMIT THEIR DISTRIBUTION TO ONLY SUCH
RETAILERS AS ARE FRANCHISED SHOULD BE ENJOINED; AND (3) THAT
ARRANGEMENTS PREVENTING FRANCHISED RETAILERS FROM SUPPLYING NON
FRANCHISED RETAILERS, INCLUDING DISCOUNT STORES, SHOULD ALSO BE
FORBIDDEN. 

AS TO POINT (2), THE GOVERNMENT ARGUES THAT IT IS ILLOGICAL AND
INCONSISTENT TO FORBID TERRITORIAL LIMITATIONS ON RESALES BY
DISTRIBUTORS WHERE THE DISTRIBUTOR OWNS THE GOODS, HAVING BOUGHT THEM
FROM SCHWINN, AND, AT THE SAME TIME, TO EXONERATE ARRANGEMENTS WHICH
REQUIRE DISTRIBUTORS TO CONFINE RESALES OF THE GOODS THEY HAVE BOUGHT
TO "FRANCHISED" RETAILERS.  IT ARGUES THAT REQUIRING DISTRIBUTORS, ONCE
THEY HAVE PURCHASED THE PRODUCT, TO CONFINE SALES TO FRANCHISED
RETAILERS IS INDISTINGUISHABLE IN LAW AND PRINCIPLE FROM THE DIVISION
OF TERRITORY WHICH THE DECREE CONDEMNS.  BOTH, THE GOVERNMENT ARGUES,
ARE IN THE NATURE OF RESTRAINTS UPON ALIENATION WHICH ARE BEYOND THE
POWER OF THE MANUFACTURER TO IMPOSE UPON ITS VENDEES AND WHICH, SINCE
THE NATURE OF THE TRANSACTION INCLUDES AN AGREEMENT, COMBINATION OR
UNDERSTANDING, ARE VIOLATIONS OF SEC 1 OF THE SHERMAN ACT.  CF.  DR.
MILES MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373 (1911); UNITED
STATES V. BAUSCH & LOMB CO., SUPRA; KLOR'S, INC. V. BROADWAY-HALE
STORES, INC., SUPRA; FASHION ORIGINATORS' GUILD V. FTC, 312 U.S. 457
(1941); UNITED STATES V. GENERAL MOTORS CORP., 384 U.S. 127 (1966).  WE
AGREE, AND UPON REMAND, THE DECREE SHOULD BE REVISED TO ENJOIN ANY
LIMITATION UPON THE FREEDOM OF DISTRIBUTORS TO DISPOSE OF THE SCHWINN
PRODUCTS, WHICH THEY HAVE BOUGHT FROM SCHWINN, WHERE AND TO WHOMEVER
THEY CHOOSE.  THE PRINCIPLE IS, OF COURSE, EQUALLY APPLICABLE TO SALES
TO RETAILERS, AND THE DECREE SHOULD SIMILARLY ENJOIN THE MAKING OF ANY
SALES TO RETAILERS UPON ANY CONDITION, AGREEMENT OR UNDERSTANDING
LIMITING THE RETAILER'S FREEDOM AS TO WHERE AND TO WHOM IT WILL RESELL
THE PRODUCTS. 

THE APPELLANT VIGOROUSLY ARGUES THAT, SINCE THIS REMEDY IS CONFINED
TO SITUATIONS WHERE THE DISTRIBUTOR AND RETAILER ACQUIRE TITLE TO THE
BICYCLES, IT WILL PROVIDE ONLY PARTIAL RELIEF; THAT TO PREVENT THE
ALLOCATION OF TERRITORIES AND CONFINEMENT TO FRANCHISED RETAIL DEALERS,
THE DECREE CAN AND SHOULD BE ENLARGED TO FORBID THESE PRACTICES,
HOWEVER EFFECTED - WHETHER BY SALE AND RESALE OR BY AGENCY,
CONSIGNMENT, OR THE SCHWINN PLAN.  BUT WE ARE DEALING HERE WITH A
VERTICAL RESTRAINT EMBODYING THE UNILATERAL PROGRAM OF A SINGLE
MANUFACTURER.  WE ARE NOT DEALING WITH A COMBINATION OF MANUFACTURERS,
AS IN KLOR'S, OR OF DISTRIBUTORS, AS IN GENERAL MOTORS.  WE ARE NOT
DEALING WITH A "DIVISION" OF TERRITORY IN THE SENSE OF AN ALLOCATION BY
AND AMONG DISTRIBUTORS, SEE SEALY, SUPRA, OR AN AGREEMENT AMONG
DISTRIBUTORS TO RESTRICT THEIR COMPETITION, SEE GENERAL MOTORS, SUPRA.
WE ARE HERE CONCERNED WITH A TRULY VERTICAL ARRANGEMENT, RAISING THE
FUNDAMENTAL QUESTION OF THE DEGREE TO WHICH A MANUFACTURER MAY NOT ONLY
SELECT THE CUSTOMERS TO WHOM HE WILL SELL, BUT ALSO ALLOCATE
TERRITORIES FOR RESALE AND CONFINE ACCESS TO HIS PRODUCT TO SELECTED,
OR FRANCHISED, RETAILERS.  WE CONCLUDE THAT THE PROPER APPLICATION OF
SEC 1 OF THE SHERMAN ACT TO THIS PROBLEM REQUIRES DIFFERENTIATION
BETWEEN THE SITUATION WHERE THE MANUFACTURER PARTS WITH TITLE,
DOMINION, OR RISK WITH RESPECT TO THE ARTICLE, AND WHERE HE COMPLETELY
RETAINS OWNERSHIP AND RISK OF LOSS. 

AS THE DISTRICT COURT HELD, WHERE A MANUFACTURER SELLS PRODUCTS TO
HIS DISTRIBUTOR SUBJECT TO TERRITORIAL RESTRICTIONS UPON THE SALE, A
PER SE VIOLATION OF THE SHERMAN ACT RESULTS.  AND, AS WE HAVE HELD, THE
SAME PRINCIPLE APPLIES TO RESTRICTIONS OF OUTLETS WITH WHICH THE
DISTRIBUTORS MAY DEAL AND TO RESTRAINTS UPON RETAILERS TO WHOM THE
GOODS ARE SOLD.  UNDER THE SHERMAN ACT, IT IS UNREASONABLE WITHOUT MORE
FOR A MANUFACTURER TO SEEK TO RESTRICT AND CONFINE AREAS OR PERSONS
WITH WHOM AN ARTICLE MAY BE TRADED AFTER THE MANUFACTURER HAS PARTED
WITH DOMINION OVER IT.  WHITE MOTOR, SUPRA; DR. MILES, SUPRA.  SUCH
RESTRAINTS ARE SO OBVIOUSLY DESTRUCTIVE OF COMPETITION THAT THEIR MERE
EXISTENCE IS ENOUGH.  IF THE MANUFACTURER PARTS WITH DOMINION OVER HIS
PRODUCT OR TRANSFERS RISK OF LOSS TO ANOTHER, HE MAY NOT RESERVE
CONTROL OVER ITS DESTINY OR THE CONDITIONS OF ITS RESALE.  (FN6)  TO
PERMIT THIS WOULD SANCTION FRANCHISING AND CONFINEMENT OF DISTRIBUTION
AS THE ORDINARY INSTEAD OF THE UNUSUAL METHOD WHICH MAY BE PERMISSIBLE
IN AN APPROPRIATE AND IMPELLING COMPETITIVE SETTING, SINCE MOST
MERCHANDISE IS DISTRIBUTED BY MEANS OF PURCHASE AND SALE.  ON THE OTHER
HAND, AS INDICATED IN WHITE MOTOR, WE ARE NOT PREPARED TO INTRODUCE THE
INFLEXIBILITY WHICH A PER SE RULE MIGHT BRING IF IT WERE APPLIED TO
PROHIBIT ALL VERTICAL RESTRICTIONS OF TERRITORY AND ALL FRANCHISING, IN
THE SENSE OF DESIGNATING SPECIFIED DISTRIBUTORS AND RETAILERS AS CHOSEN
INSTRUMENTS THROUGH WHICH THE MANUFACTURER, RETAINING OWNERSHIP OF THE
GOODS, WILL DISTRIBUTE THEM TO THE PUBLIC.  SUCH A RULE MIGHT SEVERELY
HAMPER SMALLER ENTERPRISES RESORTING TO REASONABLE METHODS OF MEETING
THE COMPETITION OF GIANTS AND OF MERCHANDISING THROUGH INDEPENDENT
DEALERS, AND IT MIGHT SHARPLY ACCELERATE THE TREND TOWARDS VERTICAL
INTEGRATION OF THE DISTRIBUTION PROCESS.  BUT TO ALLOW THIS FREEDOM
WHERE THE MANUFACTURER HAS PARTED WITH DOMINION OVER THE GOODS - THE
USUAL MARKETING SITUATION - WOULD VIOLATE THE ANCIENT RULE AGAINST
RESTRAINTS ON ALIENATION AND OPEN THE DOOR TO EXCLUSIVITY OF OUTLETS
AND LIMITATION OF TERRITORY FURTHER THAN PRUDENCE PERMITS. 

THE GOVERNMENT DOES NOT HERE CONTEND FOR A PER SE RULE AS TO AGENCY,
CONSIGNMENT, OR SCHWINN-PLAN TRANSACTIONS EVEN THOUGH THESE MAY BE USED
- AS THEY ARE HERE - TO IMPLEMENT A SCHEME OF CONFINING DISTRIBUTION
OUTLETS AS IN THIS CASE.  WHERE THE MANUFACTURER RETAINS TITLE,
DOMINION, AND RISK WITH RESPECT TO THE PRODUCT AND THE POSITION AND
FUNCTION OF THE DEALER IN QUESTION ARE, IN FACT, INDISTINGUISHABLE FROM
THOSE OF AN AGENT OR SALESMAN OF THE MANUFACTURER, IT IS ONLY IF THE
IMPACT OF THE CONFINEMENT IS "UNREASONABLY" RESTRICTIVE OF COMPETITION
THAT A VIOLATION OF SEC 1 RESULTS FROM SUCH CONFINEMENT, UNENCUMBERED
BY CULPABLE PRICE FIXING.  SIMPSON V. UNION OIL CO., 377 U.S. 13
(1964).  AS THE DISTRICT COURT FOUND, SCHWINN ADOPTED THE CHALLENGED
DISTRIBUTION PROGRAMS IN A COMPETITIVE SITUATION DOMINATED BY MASS
MERCHANDISERS WHICH COMMAND ACCESS TO LARGE-SCALE ADVERTISING AND
PROMOTION, CHOICE OF RETAIL OUTLETS, BOTH OWNED AND FRANCHISED, AND
ADEQUATE SOURCES OF SUPPLY.  IT IS NOT CLAIMED THAT SCHWINN'S PRACTICES
OR OTHER CIRCUMSTANCES RESULTED IN AN INADEQUATE COMPETITIVE SITUATION
WITH RESPECT TO THE BICYCLE MARKET; AND THERE IS NOTHING IN THIS RECORD
- AFTER ELIMINATION OF THE PRICE-FIXING ISSUE - TO LEAD US TO CONCLUDE
THAT SCHWINN'S PROGRAM EXCEEDED THE LIMITS REASONABLY NECESSARY TO MEET
THE COMPETITIVE PROBLEMS POSED BY MORE POWERFUL COMPETITORS.  IN THESE
CIRCUMSTANCES, THE RULE OF REASON IS SATISFIED. 

WE DO NOT SUGGEST THAT THE UNILATERAL ADOPTION BY A SINGLE
MANUFACTURER OF AN AGENCY OR CONSIGNMENT PATTERN AND THE SCHWINN TYPE
OF RESTRICTIVE DISTRIBUTION SYSTEM WOULD BE JUSTIFIED IN ANY AND ALL
CIRCUMSTANCES BY THE PRESENCE OF THE COMPETITION OF MASS MERCHANDISERS
AND BY THE DEMONSTRATED NEED OF THE FRANCHISE SYSTEM TO MEET THAT
COMPETITION.  BUT CERTAINLY, IN SUCH CIRCUMSTANCES, THE VERTICALLY
IMPOSED DISTRIBUTION RESTRAINTS - ABSENT PRICE FIXING AND IN THE
PRESENCE OF ADEQUATE SOURCES OF ALTERNATIVE PRODUCTS TO MEET THE NEEDS
OF THE UNFRANCHISED - MAY NOT BE HELD TO BE PER SE VIOLATIONS OF THE
SHERMAN ACT.  THE GOVERNMENT, IN THIS COURT, SO CONCEDES IN THIS CASE. 

ON THIS RECORD, WE CANNOT BRAND THE DISTRICT COURTS'S FINDING AS
CLEARLY ERRONEOUS AND CANNOT OURSELVES CONCLUDE THAT SCHWINN'S
FRANCHISING OF RETAILERS AND ITS CONFINEMENT OF RETAIL SALES TO THEM -
SO LONG AS IT RETAINS ALL INDICIA OF OWNERSHIP, INCLUDING TITLE,
DOMINION, AND RISK, AND SO LONG AS THE DEALERS IN QUESTION ARE
INDISTINGUISHABLE IN FUNCTION FROM AGENTS OR SALESMEN - CONSTITUTE AN
"UNREASONABLE" RESTRAINT OF TRADE.  CRITICAL IN THIS RESPECT ARE THE
FACTS:  (1) THAT OTHER COMPETITIVE BICYCLES ARE AVAILABLE TO
DISTRIBUTORS AND RETAILERS IN THE MARKETPLACE, AND THERE IS NO SHOWING
THAT THEY ARE NOT IN ALL RESPECTS REASONABLY INTERCHANGEABLE AS
ARTICLES OF COMPETITIVE COMMERCE WITH THE SCHWINN PRODUCT; (FN7) (2)
THAT SCHWINN DISTRIBUTORS AND RETAILERS HANDLE OTHER BRANDS OF BICYCLES
AS WELL AS SCHWINN'S; (3) IN THE PRESENT POSTURE OF THE CASE WE CANNOT
RULE THAT THE VERTICAL RESTRAINTS ARE UNREASONABLE BECAUSE OF THEIR
INTERMIXTURE WITH PRICE FIXING; AND (4) WE CANNOT DISAGREE WITH THE
FINDINGS OF THE TRIAL COURT THAT COMPETITION MADE NECESSARY THE
CHALLENGED PROGRAM; THAT IT WAS JUSTIFIED BY, AND WENT NO FURTHER THAN
REQUIRED BY, COMPETITIVE PRESSURES; AND THAT ITS NET EFFECT IS TO
PRESERVE AND NOT TO DAMAGE COMPETITION IN THE BICYCLE MARKET. 
APPLICATION OF THE RULE OF REASON HERE CANNOT BE CONFINED TO INTRABRAND
COMPETITION.  WHEN WE LOOK TO THE PRODUCT MARKET AS A WHOLE, WE CANNOT
CONCLUDE THAT SCHWINN'S FRANCHISE SYSTEM WITH RESPECT TO PRODUCTS AS TO
WHICH IT RETAINS OWNERSHIP AND RISK CONSTITUTES AN UNREASONABLE
RESTRAINT OF TRADE.  THIS DOES NOT, OF COURSE, EXCUSE OR CONDONE THE
PER SE VIOLATIONS WHICH, IN SUBSTANCE, CONSIST OF THE CONTROL OVER THE
RESALE OF SCHWINN'S PRODUCTS AFTER SCHWINN HAS PARTED WITH OWNERSHIP
THEREOF.  ONCE THE MANUFACTURER HAS PARTED WITH TITLE AND RISK, HE HAS
PARTED WITH DOMINION OVER THE PRODUCT, AND HIS EFFORT THEREAFTER TO
RESTRICT TERRITORY OR PERSONS TO WHOM THE PRODUCT MAY BE TRANSFERED -
WHETHER BY EXPLICIT AGREEMENT OR BY SILENT COMBINATION OR UNDERSTANDING
WITH HIS VENDEE - IS A PER SE VIOLATION OF SEC 1 OF THE SHERMAN ACT. 
ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE
CAUSE REMANDED FOR THE ENTRY OF A DECREE IN ACCORDANCE WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  B.F. GOODRICH NEGOTIATED A CONSENT DECREE WITH THE GOVERNMENT
PRIOR TO TRIAL, AND DROPPED OUT OF THE CASE. 

FN2  ITS PARTS AND ACCESSORY BUSINESS IS LESS THAN 4% OF ITS TOTAL
SALES.  LIKE OTHER BICYCLE PRODUCERS, SCHWINN MANUFACTURES THE BASIC
PARTS OF ITS BICYCLES AND PURCHASES COMPONENTS FROM PARTS PRODUCERS. 

FN3  SCHWINN'S BRIEF REPRESENTS THAT PRESENTLY ABOUT 75% OF ALL
SCHWINN SALES ARE NOW MADE UNDER THE SCHWINN PLAN; THAT THERE ARE NO
LONGER AND CONSIGNMENT AGREEMENTS; AND THAT ONLY TWO CYCLE DISTRIBUTORS
REMAIN UNDER AGENCY CONTRACT. 

FN4  THE UNITED STATES DID NOT PERFECT THIS POINT BELOW, AND ITS
JURISDICTIONAL STATEMENT IN THIS COURT DID NOT EXPRESSLY REQUEST
REVISION OF THE DECREE.  APPELLEES STRENUOUSLY URGE THAT WE SHOULD FOR
THESE REASONS REFUSE TO CONSIDER THE UNITED STATES' PRESENT ARGUMENT
THAT THE DECREE SHOULD BE ENLARGED AS STATED.  SEE SUPREME COURT RULES
15(1)(C)(1) AND 40(1)(D)(2); GENERAL PICTURES CO. V. ELECTRIC CO., 304
U.S. 175, 177-179 (1938).  WHILE WE REGARD WITH DISFAVOR THE
GOVERNMENT'S PRACTICE IN THIS CASE, BOTH WITH RESPECT TO THE POINT HERE
AT ISSUE AND ITS CHANGE OF THEORY, IN VIEW OF THE NATURE AND IMPORTANCE
OF THE CASE, WE SHALL NOT REJECT THE TENDERED ISSUES BECAUSE THE
REQUEST FOR THE SUBSTANCE OF THE RELIEF WAS EMBRACED IN THE QUESTION
PRESENTED IN THE JURISDICTIONAL STATEMENT AND BECAUSE APPELLEES HAVE
NOT BEEN ADVERSELY AFFECTED. 

FN5  THE UNITED STATES, HAVING ABANDONED ITS CONTENTION THAT THE
RESTRAINTS IN THE PRESENT CASE ARE PER SE VIOLATIONS OF THE SHERMAN
ACT, NOW URGES "A STANDARD OF PRESUMPTIVE ILLEGALITY," PRESUMABLY ON
THE BASIS OF A SHOWING THAT A PRODUCT HAS BEEN DISTRIBUTED BY MEANS OF
ARRANGEMENTS FOR TERRITORIAL EXCLUSIVITY AND RESTRICTED RETAIL AND
WHOLESALE CUSTOMERS.  WE DO NOT CONSIDER THIS ADDITIONAL SUBTLETY WHICH
WAS NOT ADVANCED IN THE TRIAL COURT.  THE BURDEN OF PROOF IN ANTITRUST
CASES REMAINS WITH THE PLAINTIFF, DERIVING SUCH HELP AS MAY BE
AVAILABLE IN THE CIRCUMSTANCES FROM PARTICULARIZED RULES ARTICULATED BY
LAW - SUCH AS THE PER SE DOCTRINE.  CF. STANDARD OIL CO. V. UNITED
STATES, 283 U.S. 163, 179 (1931). 

FN6  WE HAVE NO OCCASION HERE TO CONSIDER WHETHER A PATENTEE HAS ANY
GREATER RIGHTS IN THIS RESPECT.  COMPARE UNITED STATES V. GENERAL
ELECTRIC CO., 272 U.S. 476 (1926), WITH UNITED STATES V. NEW WRINKLE,
INC., 342 U.S. 371 (1952); UNITED STATES V. LINE MATERIAL CO., 333 U.S.
287 (1948); AND UNITED STATES V. MASONITE CORP., 316 U.S. 265 (1942). 

FN7  WE DO NOT REGARD SCHWINN'S CLAIM OF PRODUCT EXCELLENCE AS
ESTABLISHING THE CONTRARY. 

MR. JUSTICE CLARK AND MR. JUSTICE WHITE TOOK NO PART IN THE DECISION
OF THIS CASE. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT'S BASIC DETERMINATION THAT SCHWINN'S MARKETING
SYSTEM IS, UNDER THE RULE OF REASON, ENTIRELY CONSONANT WITH THE
ANTITRUST LAWS.  BUT I CANNOT UNDERSTAND HOW THAT MARKETING SYSTEM
BECOMES PER SE UNREASONABLE AND ILLEGAL IN THOSE INSTANCES WHERE IT IS
EFFECTUATED THROUGH SALES TO WHOLESALERS AND DEALERS. 

SCHWINN'S PRESENT MARKETING POLICIES WERE DEVELOPED IN THE LATE
1940'S AND EARLY 1950'S.  STUDIES UNDERTAKEN AT THAT TIME REVEALED THAT
SCHWINN'S EXISTING DISTRIBUTION ACTIVITIES WERE HAPHAZARD AND
INEFFICIENT, INVOLVING A LARGE NUMBER OF WHOLESALERS AND OVER 15,000
RETAILERS OF EVERY SIZE AND VARIETY.  MANY OF THE RETAILERS WERE
LARGELY OR COMPLETELY INACTIVE, RESULTING IN UNPROFITABLE OVERHEAD
COSTS AND WASTED ADVERTISING AND PROMOTIONAL EXPENDITURES FOR SCHWINN. 
MOREOVER, THE SALES METHODS AND SERVICE RESOURCES OF MANY OF THESE
OUTLETS DID NOT COMPORT WITH SCHWINN'S TRADITIONAL POLICY OF
MANUFACTURING AND SELLING QUALITY BICYCLES.  SCHWINN BELIEVED THAT
PROPER PROMOTION OF ITS PRODUCTS REQUIRED AN ACTIVE AND STABLE DEALER
ORGANIZATION, COMPOSED OF EXPERIENCED PEOPLE WHO COULD PROPERLY
PROMOTE, ASSEMBLE, AND SERVICE BICYCLES.  SUCH DEALERS WERE TO BE FOUND
PRIMARILY IN SMALL INDEPENDENT BICYCLE SALES AND REPAIR SHOPS, RATHER
THAN HARDWARE STORES OR MASS MERCHANDISERS THAT SOLD BICYCLES
UNASSEMBLED IN THE CARTON AND PROVIDED NO SERVICE AND REPAIR
FACILITIES.  (FN1)  AS THE DISTRICT COURT FOUND, "SCHWINN DETERMINED
THAT IT DID NOT WANT TOM, DICK, AND HARRY TO BE SELLING ITS PRODUCT IN
A CARTON, COLLECTING THE PRICE PAID, 'KISSING THE CUSTOMER GOODBYE,'
DEPOSITING HIS PROFIT AND FORGETTING THE CUSTOMER, SCHWINN, AND THE
PUBLIC GENERALLY."  (FN2) 

SCHWINN ACCORDINGLY DEVELOPED A FRANCHISING POLICY THAT WOULD ASSURE
QUALITY AND EFFICIENCY IN ITS DISTRIBUTION SYSTEM.  AFTER CONSULTING
WITH MARKETING EXPERTS IN GOVERNMENT AND INDUSTRY AND CLEARING ITS
PROGRAM WITH THE FEDERAL TRADE COMMISSION, IT FRANCHISED ABOUT 5,500
SELECTED RETAILERS TO MARKET ITS PRODUCTS.  "SCHWINN CHOSE THOSE WHO BY
THEIR RECORD WERE BEST CREDIT RISKS, MADE THE MOST SALES, AND PROVIDED
THE BEST SERVICE FOR SCHWINN BICYCLES."  (FN3)  THESE RETAILERS WERE
PREDOMINANTLY THE SMALL INDEPENDENT BICYCLE SALES AND REPAIR DEALERS
MENTIONED ABOVE, WHO NOW REPRESENT NEARLY ALL OF SCHWINN'S OUTLETS. 

BY FORMING THIS RELATIONSHIP WITH INDEPENDENT DEALERS, SCHWINN HOPED
TO MEET THE COMPETITION OF THE GIANT CHAIN DISTRIBUTORS.  THESE
DISTRIBUTORS ACCOUNT FOR 60% OF RETAIL BICYCLE SALES.  ALTHOUGH THE
PAST DECADE AND A HALF HAS BEEN ONE OF UNPRECEDENTED VIGOROUS
COMPETITION IN THE INDUSTRY, SPURRED BY A FLOOD OF IMPORTED BICYCLES,
SCHWINN'S POLICY HAS IN LARGE PART SUCCEEDED.  WHILE PROFITS AND
MARGINS HAVE BEEN SQUEEZED, (FN4) SCHWINN'S SALES HAVE INCREASED
SUBSTANTIALLY, IT HAS PARED THE NUMBER OF INACTIVE RETAILERS AND
INCREASED THE NUMBER OF HIGH VOLUME DEALERS, AND IT HAS REAPED A
GREATER RETURN FROM ITS ADVERTISING AND PROMOTIONAL EXPENDITURES.  AS
THE DISTRICT COURT CONCLUDED:  (FN5) 

"THE EVIDENCE IS ABUNDANTLY CLEAR THAT SCHWINN'S PRACTICE OF
ELIMINATING DEAD TIMBER, USELESS AND INACTIVE OR RELATIVELY INACTIVE
ACCOUNTS, AND PERSONS AND FIRMS UNABLE OR UNWILLING TO PROVIDE SERVICE
AND PART REPLACEMENTS, AND ADOPTING AND ADHERING TO A FRANCHISE PROGRAM
INSTEAD OF RESTRAINING TRADE IN SCHWINN BICYCLES, HAS GREATLY ENHANCED
TRADE IN SCHWINN BICYCLES AND HAS IN FACT BEEN THE SALVATION OF SCHWINN
...  AND HAS ACTUALLY MADE FOR GENUINE COMPETITION IN THE BICYCLE
MANUFACTURING INDUSTRY." 

OF COURSE, THE WHOLE PREMISE OF SCHWINN'S MARKETING PROGRAM WAS THAT
ITS PRODUCT WOULD BE SOLD TO THE PUBLIC ONLY BY THE QUALIFIED RETAILERS
WHOM IT HAD FRANCHISED.  (FN6)  ACCORDINGLY, SCHWINN UNILATERALLY
INSTITUTED A POLICY OF ENSURING THAT ONLY FRANCHISED RETAILERS WOULD BE
SUPPLIED WITH ITS PRODUCTS.  THIS POLICY WAS THE SAME, WHETHER
DISTRIBUTION TOOK THE FORM OF THE SO-CALLED SCHWINN PLAN DELIVERIES TO
RETAILERS, OR AGENCY AND CONSIGNMENT ARRANGEMENTS, OR WHETHER IT TOOK
THE FORM OF SALES BY SCHWINN TO WHOLESALERS AND RESALE BY THEM TO
RETAILERS.  THE RECORD SHOWS THAT THIS POLICY WAS IMPLEMENTED LARGELY
THROUGH REQUEST AND PERSUASION BY SCHWINN. 

SCHWINN'S SELECTIVE DISTRIBUTION POLICY MAY BE SAID TO EMBODY
RESTRAINTS ON TRADE.  AS SUCH, IT IS SUBJECT TO ANTITRUST SCRUTINY, BUT
THE SCRUTINY DOES NOT STOP WITH THE LABEL "RESTRAINT."  THE WORDS
WRITTEN BY MR. JUSTICE BRANDEIS FOR A UNANIMOUS COURT IN CHICAGO BOARD
OF TRADE V. UNITED STATES, 246 U.S. 231, 238, BEAR REPEATING: 

"EVERY AGREEMENT CONCERNING TRADE, EVERY REGULATION OF TRADE,
RESTRAINS.  TO BIND, TO RESTRAIN, IS OF THEIR VERY ESSENCE.  THE TRUE
TEST OF LEGALITY IS WHETHER THE RESTRAINT IMPOSED IS SUCH AS MERELY
REGULATES AND PERHAPS THEREBY PROMOTES COMPETITION OR WHETHER IT IS
SUCH AS MAY SUPRESS OR EVEN DESTROY COMPETITION.  TO DETERMINE THAT
QUESTION THE COURT MUST ORDINARILY CONSIDER THE FACTS PECULIAR TO THE
BUSINESS TO WHICH THE RESTRAINT IS APPLIED; ITS CONDITION BEFORE AND
AFTER THE RESTRAINT WAS IMPOSED; THE NATURE OF THE RESTRAINT AND ITS
EFFECT, ACTUAL OR PROBABLE.  THE HISTORY OF THE RESTRAINT, THE EVIL
BELIEVED TO EXIST, THE REASON FOR ADOPTING THE PARTICULAR REMEDY, THE
PUROPSE OR END SOUGHT TO BE ATTAINED, ARE ALL RELEVANT FACTS." 

IN WHITE MOTOR CO. V. UNITED STATES, 372 U.S. 253, WE REAFFIRMED THIS
FORMULATION OF THE RULE OF REASON AND REFUSED TO ADOPT PER SE RULES TO
INVALIDATE VERTICAL RESTRAINTS ON DISTRIBUTION ANALOGOUS TO BUT MORE
RESTRICTIVE THAN THOSE INVOLVED HERE.  THE DISTRICT COURT IN THIS CASE
EXPLICITLY FOLLOWED THE DIRECTIVE OF WHITE MOTOR AND EXAMINED IN DETAIL
THE HISTORICAL AND ECONOMIC CONTEXT IN WHICH SCHWINN'S DISTRIBUTION
POLICIES WERE DEVELOPED AND APPLIED.  THE EVIDENCE FULLY SUPPORTS THE
DISTRICT COURT'S FINDINGS THAT THE ULTIMATE EFFECT OF THESE POLICIES
WAS TO ENHANCE RATHER THAN UNDERMINE OR DESTROY COMPETITION, AND I
FULLY JOIN THE COURT'S APPROVAL OF THOSE FINDINGS TODAY. 

IT IS WORTH EMPHASIZING THAT THE JUSTIFICATIONS FOR SCHWINN'S
FRANCHISING POLICY REST NOT ONLY ON THE FACTS OF THIS PARTICULAR
RECORD, BUT ON LARGER ISSUES OF SOCIAL AND ECONOMIC POLICY.  THIS COURT
HAS RECOGNIZED CONGRESS' CONCERN WITH THE DISAPPEARANCE OF THE SMALL
INDEPENDENT MERCHANT IN THE FACE OF COMPETITION FROM VERTICALLY
INTEGRATED GIANTS.  SEE BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294,
333, 346.  THIS TREND IN MANY CASES REFLECTS THE INEXORABLE ECONOMIC
REALITIES OF MODERN MARKETING.  BUT FRANCHISING PROMISES TO PROVIDE THE
INDEPENDENT MERCHANT WITH THE MEANS TO BECOME AN EFFICIENT AND
EFFECTIVE COMPETITOR OF LARGE INTEGRATED FIRMS.  THROUGH VARIOUS FORMS
OF FRANCHISING, THE MANUFACTURER IS ASSURED QUALIFIED AND EFFECTIVE
OUTLETS FOR HIS PRODUCTS, AND THE FRANCHISEE ENJOYS BACKING IN THE FORM
OF KNOW-HOW AND FINANCIAL ASSISTANCE.  (FN7)  THESE FRANCHISE
ARRANGEMENTS ALSO MAKE SIGNIFIGANT SOCIAL AND ECONOMIC CONTRIBUTIONS OF
IMPORTANCE TO THE WHOLE SOCIETY, AS AT LEAST ONE FEDERAL COURT HAS
NOTED: 

"THE FRANCHISE METHOD OF OPERATION HAS THE ADVANTAGE, FROM THE
STANDPOINT OF OUR AMERICAN SYSTEM OF COMPETITIVE ECONOMY, OF ENABLING
NUMEROUS GROUPS OF INDIVIDUALS WITH SMALL CAPITAL TO BECOME
ENTREPRENEURS  ...  .  IF OUR ECONOMY HAD NOT DEVELOPED THAT SYSTEM OF
OPERATION THESE INDIVIDUALS WOULD HAVE TURNED OUT TO HAVE BEEN MERELY
EMPLOYEES.  THE FRANCHISE SYSTEM CREATES A CLASS OF INDEPENDENT
BUSINESSMEN; IT PROVIDES THE PUBLIC WITH AN OPPORTUNITY TO GET A
UNIFORM PRODUCT AT NUMEROUS POINTS OF SALE FROM SMALL INDEPENDENT
CONTRACTORS, RATHER THAN FROM EMPLOYEES OF A VAST CHAIN."  (FN8) 

INDISCRIMINATE INVALIDATION OF FRANCHISING ARRANGEMENTS WOULD
ELIMINATE THEIR CREATIVE CONTRIBUTIONS TO COMPETITION AND FORCE
"SUPPLIERS TO ABANDON FRANCHISING AND INTEGRATE FORWARD TO THE
DETRIMENT OF SMALL BUSINESS.  IN OTHER WORDS, WE MAY INADVERTENTLY
COMPEL CONCENTRATION" BY MISGUIDED ZEALOUSNESS.  (FN9)  AS A RESULT,
"THERE WOULD BE LESS AND LESS PLACE FOR THE INDEPENDENT."  STANDARD OIL
CO. V. UNITED STATES, 337 U.S. 293, 315 (SEPARATE OPINION OF MR.
JUSTICE DOUGLAS).  "THE SMALL, INDEPENDENT BUSINESS MAN WOULD BE
SUPPLANTED BY CLERKS."  ID., AT 321. 

FOR THESE REASONS I COMPLETELY AGREE WITH THE COURT'S BASIC APPROACH
TO THIS CASE.  THE COURT FULLY RECOGNIZES THAT OUTLAWRY OF FRANCHISING
"MIGHT SEVERELY HAMPER SMALLER ENTERPRISES RESORTING TO REASONABLE
METHODS OF MEETING THE COMPETITION OF GIANTS AND OF MERCHANDISING
THROUGH INDEPENDENT DEALERS, AND IT MIGHT SHARPLY ACCELERATE THE TREND
TOWARDS VERTICAL INTEGRATION OF THE DISTRIBUTION PROCESS."  IT
ACKNOWLEDGES THAT SCHWINN'S MARKETING PROGRAM HAS OPERATED "TO PRESERVE
AND NOT TO DAMAGE COMPETITION," AND CONCLUDES THAT "THE RULE OF REASON"
IS SATISFIED.  IT UPHOLDS THE LEGALITY OF THE SCHWINN PLAN, WHICH IS
THE HEART OF SCHWINN'S MARKETING SYSTEM, NOW ACCOUNTING FOR 75% OF THE
DISTRIBUTION OF SCHWINN'S PRODUCTS.  IT ALSO UPHOLDS THE LEGALITY OF
SCHWINN'S AGENCY AND CONSIGNMENT ARRANGEMENTS. 

BUT THE COURT INEXPLICABLY TURNS ITS BACK ON THE VALUES OF
COMPETITION BY INDEPENDENT MERCHANTS AND THE FLEXIBLE WISDOM OF THE
RULE OF REASON WHEN DEALING WITH DISTRIBUTION EFFECTED THROUGH SALES TO
WHOLESALERS.  IN SCHWINN'S PARTICULAR MARKETING SYSTEM, THIS MODE OF
DISTRIBUTION PLAYS A SUBSIDIARY ROLE, SERVING TO MEET "FILL-IN" ORDERS
BY DEALERS, WHOSE BASIC STOCK IS OBTAINED THROUGH THE SCHWINN PLAN. 
WITHOUT CONSIDERING ITS FUNCTION, PURPOSE OR EFFECT, THE COURT DECLARES
THIS ASPECT OF SCHWINN'S PROGRAM TO BE PER SE INVALID.  IT LIKEWISE
APPLIES THE SAME AUTOMATIC RULE OF ILLEGALITY TO STRIKE DOWN SCHWINN'S
POLICY OF ENSURING THAT FRANCHISED DEALERS DO NOT RESELL TO
UNFRANCHISED RETAILERS AND THUS SUBVERT THE WHOLE DISTRIBUTIONAL
SCHEME. 

DESPITE THE GOVERNMENT'S CONCESSION THAT THE RULE OF REASON APPLIES
TO ALL ASPECTS OF SCHWINN'S DISTRIBUTION SYSTEM, THE COURT NEVERTHELESS
REACHES OUT TO ADOPT A POTENT PER SE RULE.  NO PREVIOUS ANTITRUST
DECISION OF THIS COURT JUSTIFIES ITS ACTION.  (FN10)  INSTEAD, IT
COMPLETELY REPUDIATES THE ONLY CASE IN POINT, WHITE MOTOR.  THERE THE
MANUFACTURER SOLD ITS PRODUCTS TO RETAILERS AND WHOLESALERS AND IMPOSED
TERRITORIAL AND CUSTOMER RESTRICTIONS ON THEIR RESALE, RESTRICTIONS
MUCH MORE STRINGENT THAN THOSE INVOLVED HERE.  BUT THE COURT IN WHITE
MOTOR REFUSED TO APPLY A PER SE RULE TO INVALIDATE THESE RESTRICTIONS,
AND DECLARED THAT THEIR LEGALITY MUST BE TESTED UNDER THE RULE OF
REASON BY EXAMINING THEIR ACTUAL IMPACT IN A PARTICULAR COMPETITIVE
CONTEXT.  THE COURT TODAY IS UNABLE TO GIVE ANY REASONS WHY, ONLY FOUR
YEARS LATER, THIS PRECEDENT SHOULD BE OVERRULED.  SURELY, WE HAVE NOT
IN THIS SHORT INTERIM ACCUMULATED SUFFICIENT NEW EXPERIENCE OR INSIGHT
TO JUSTIFY EMBRACING A RULE AUTOMATICALLY INVALIDATING ANY VERTICAL
RESTRAINTS IN A DISTRIBUTION SYSTEM BASED ON SALES TO WHOLESALERS AND
RETAILERS.  SEE 372 U.S., AT 264-266 (CONCURRING OPINION OF MR. JUSTICE
BRENNAN).  INDEED, THE COURT DOES NOT CITE OR DISCUSS ANY NEW DATA THAT
MIGHT SUPPORT SUCH A RADICAL CHANGE IN THE LAW.  AND I AM COMPLETELY AT
A LOSS TO FATHOM HOW THE COURT CAN ADOPT ITS PER SE RULE CONCERNING
DISTRIBUTIONAL SALES AND YET UPHOLD IDENTICAL RESTRICTIONS IN SCHWINN'S
MARKETING SCHEME WHEN DISTRIBUTION TAKES THE FORM OF CONSIGNMENT OR
SCHWINN PLAN DELIVERIES.  IT DOES NOT DEMONSTRATE THAT THESE
RESTRICTIONS ARE IN THEIR ACTUAL OPERATION SOMEHOW MORE ANTICOMPETITIVE
OR LESS JUSTIFIABLE MERELY BECAUSE THE CONTRACTUAL RELATIONS BETWEEN
SCHWINN AND ITS JOBBERS AND DEALERS BEAR THE LABEL "SALE" RATHER THAN
"AGENCY" OR "CONSIGNMENT."  SUCH IRRELEVANT FORMULAE ARE FALSE GUIDES
TO SOUND ADJUDICATION IN THE ANTITRUST FIELD:  "OUR CHOICE MUST BE MADE
ON THE BASIS NOT OF ABSTRACTIONS BUT OF THE REALITIES OF MODERN
INDUSTRIAL LIFE."  STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293, 320
(SEPARATE OPINION OF MR. JUSTICE DOUGLAS). 

THE COURT ADVANCES TWO JUSTIFICATIONS FOR ITS NEW PER SE RULE.  I DO
NOT FIND EITHER PERSUASIVE.  FIRST, THE COURT CORRECTLY OBSERVES THAT
THE DISTRICT COURT INVALIDATED TERRITORIAL LIMITATIONS ON THE RESALE
ACTIVITIES OF SCHWINN'S WHOLESALERS.  THE COURT THEN STATES THAT IT
WOULD BE "ILLOGICAL AND INCONSISTENT" NOT TO STRIKE DOWN ALL THE OTHER
RESTRICTIONS IN SCHWINN'S MARKETING PROGRAM INSOFAR AS SALES ARE
INVOLVED.  BUT THE COURT COMPLETELY OVERLOOKS THE FACT THAT THE
TERRITORIAL LIMITATIONS INVALIDATED BY THE DISTRICT COURT WERE THE
PRODUCT OF A HORIZONTAL CONSPIRACY BETWEEN THE WHOLESALERS.  THE
DISTRICT COURT FOUND A "DIVISION OF TERRITORY BY AGREEMENT BETWEEN THE
DISTRIBUTORS  ...  HORIZONTAL IN NATURE."  (FN11)  SCHWINN PLAYED A
PART IN THIS CONSPIRACY, BUT JUST AS IN UNITED STATES V. GENERAL MOTORS
CORP., 384 U.S. 127, 140, THAT DID NOT ALTER ITS FUNDAMENTALLY
HORIZONTAL NATURE AS A "CLASSIC CONSPIRACY IN RESTRAINT OF TRADE."  IN
STRIKING DOWN THIS HORIZONTAL DIVISION OF MARKETS BETWEEN COMPETING
DISTRIBUTORS, THE DISTRICT COURT WAS SIMPLY FOLLOWING FAMILIAR
PRECEDENT.  TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S. 593. 
BY CONTRAST, THE RESTRICTIONS INVOLVED IN THE FRANCHISING METHODS NOW
BEFORE US ARE QUITE DIFFERENT IN NATURE, AS THE COURT POINTS OUT
ELSEWHERE IN ITS OPINION: 

"WE ARE DEALING HERE WITH A VERTICAL RESTRAINT EMBODYING THE
UNILATERAL PROGRAM OF A SINGLE MANUFACTURER.  WE ARE NOT DEALING WITH A
COMBINATION  ...  OF DISTRIBUTORS, AS IN GENERAL MOTORS.  WE ARE NOT
DEALING WITH A 'DIVISION' OF TERRITORY IN THE SENSE OF AN ALLOCATION BY
AND AMONG THE DISTRIBUTORS  ...  OR AN AGREEMENT AMONG DISTRIBUTORS TO
RESTRICT THEIR COMPETITION, SEE GENERAL MOTORS, SUPRA.  WE ARE HERE
CONCERNED WITH A TRULY VERTICAL ARRANGEMENT."  ANTE, AT 378. 

AS THE COURT ALSO EMPHASIZES, THE LEGAL PRINCIPLES APPLICABLE TO
HORIZONTAL AND VERTICAL RESTRICTIONS ARE QUITE DIFFERENT.  (FN12)
THUS, APPLYING THE RULE OF REASON TO THE VERTICAL RESTRAINTS NOW IN
ISSUE IS NOT AT ALL "ILLOGICAL AND INCONSISTENT" WITH PER SE
INVALIDATION OF THE WHOLESALERS' HORIZONTAL DIVISION OF MARKETS. 

THE COURT'S SECOND JUSTIFICATION FOR ITS NEW PER SE DOCTRINE IS THE
"ANCIENT RULE AGAINST RESTRAINTS ON ALIENATION."  THIS RULE OF PROPERTY
LAW IS CERTAINLY ANCIENT - IT TRACES ITS LINEAGE TO COKE ON LITTLETON. 
(FN13)  BUT IT IS HARDLY THE PRACTICE OF THIS COURT TO EMBRACE A RULE
OF LAW MERELY ON GROUNDS OF ITS ANTIQUITY.  MOREOVER, THE COMMON-LAW
DOCTRINE OF RESTRAINTS ON ALIENATION IS NOT NEARLY SO RIGID AS THE
COURT IMPLIES.  THE ORIGINAL RULE CONCERNED ITSELF WITH ARBITRARY AND
SEVERE RESTRICTIONS ON ALIENATION, SUCH AS TOTAL PROHIBITION OF
RESALE.  (FN14)  AS EARLY AS 1711 IT WAS RECOGNIZED THAT ONLY
UNREASONABLE RESTRAINTS SHOULD BE PROSCRIBED, AND THAT PARTIAL
RESTRICTIONS COULD BE JUSTIFIED WHEN ANCILLARY TO A LEGITIMATE BUSINESS
PURPOSE AND NOT UNDULY ANTICOMPETITIVE IN EFFECT.  MITCHEL V. REYNOLDS,
1 P. WMS.  181, 24 ENG. REP.  347.  CF. TULK V. MOXHAY, 2 PH. 774, 41
ENG. REP. 1143.  THIS DOCTRINE OF ANCILLARY RESTRAINTS WAS ASSIMILATED
INTO THE JURISPRUDENCE OF THIS COUNTRY IN THE NINETEENTH CENTURY.  SEE
OREGON STEAM NAVIGATION CO. V. WINSOR, 20 WALL.  64; UNITED STATES V.
ADDYSTON PIPE & STEEL CO., 85 F.271. 

CENTURIES AGO, IT COULD PERHAPS BE ASSUMED THAT A MANUFACTURER HAD NO
LEGITIMATE INTEREST IN WHAT HAPPENED TO HIS PRODUCTS ONCE HE HAD SOLD
THEM TO A MIDDLEMAN AND THEY HAD STARTED THEIR WAY DOWN THE CHANNEL OF
DISTRIBUTION.  BUT THIS ASSUMPTION NO LONGER HOLDS TRUE IN A DAY OF
SOPHISTICATED MARKETING POLICIES, MASS ADVERTISING, AND VERTICALLY
INTEGRATED MANUFACTURER-DISTRIBUTORS.  (FN15) RESTRICTIONS LIKE THOSE
INVOLVED IN A FRANCHISING PROGRAM SHOULD ACCORDINGLY BE ABLE TO CLAIM
JUSTIFICATION UNDER THE ANCILLARY RESTRAINTS DOCTRINE. 

IN ANY EVENT, THE STATE OF THE COMMON LAW 400 OR EVEN 100 YEARS AGO
IS IRRELEVANT TO THE ISSUE BEFORE US:  THE EFFECT OF THE ANTITRUST LAWS
UPON VERTICAL DISTRIBUTIONAL RESTRAINTS IN THE AMERICAN ECONOMY TODAY. 
THE PROBLEMS INVOLVED ARE DIFFICULT AND COMPLEX, (FN16) AND OUR
RESPONSE SHOULD BE MORE REASONED AND SENSITIVE THAN THE SIMPLE
ACCEPTANCE OF A HOARY FORMULA.  "IT DOES SEEM POSSIBLE THAT THE
NINETEENTH AND TWENTIETH CENTURIES HAVE CONTRIBUTED LEGAL CONCEPTIONS
GROWING OUT OF NEW TYPES OF BUSINESS WHICH MAKE IT INAPPROPRIATE" FOR
THE COURT TO BASE ITS "OVERTHROW OF CONTEMPORARY COMMERCIAL POLICIES ON
JUDICIAL VIEWS OF THE REIGN OF QUEEN ELIZABETH."  (FN17)  MOREOVER, THE
COURT'S ANSWER MAKES EVERYTHING TURN ON WHETHER THE ARRANGEMENT BETWEEN
A MANUFACTURER AND HIS DISTRIBUTOR IS DENOMINATED A "SALE" OR
"AGENCY."  SUCH A RULE IGNORES AND CONCEALS THE "ECONOMIC AND BUSINESS
STUFF OUT OF WHICH" A SOUND ANSWER SHOULD BE FASHIONED.  WHITE MOTOR
CO. V. UNITED STATES, SUPRA, AT 263.  THE COURT HAS EMPHASIZED IN THE
PAST THAT THESE DIFFERENCES IN FORM OFTEN DO NOT REPRESENT "DIFFERENCES
IN SUBSTANCE."  SIMPSON V. UNION OIL CO., 377 U.S. 13, 22.  DRAFTSMEN
MAY CAST BUSINESS ARRANGEMENTS IN DIFFERENT LEGAL MOLDS FOR PURPOSES OF
COMMERCIAL LAW, BUT THESE ARRANGEMENTS MAY OPERATE IDENTICALLY IN TERMS
OF ECONOMIC FUNCTION AND COMPETITIVE EFFECT.  IT IS THE LATTER FACTORS
WHICH ARE THE CONCERN OF THE ANTITRUST LAWS.  THE RECORD DOES NOT SHOW
THAT THE PURPOSES OF SCHWINN'S FRANCHISING PROGRAM AND THE COMPETITIVE
CONSEQUENCES OF ITS IMPLEMENTATION DIFFERED, DEPENDING ON WHETHER
SCHWINN SOLD ITS PRODUCTS TO WHOLESALERS OR RESORTED TO THE AGENCY,
CONSIGNMENT, OR SCHWINN PLAN METHODS OF DISTRIBUTION.  AND THERE IS NO
REASON GENERALLY TO SUPPOSE THAT VARIATIONS IN THE FORMAL LEGAL
PACKAGING OF FRANCHISING PROGRAMS PRODUCE DIFFERENCES IN THEIR ACTUAL
IMPACT IN THE MARKETPLACE.  OUR EXPERIENCE IS TO THE CONTRARY.  AS
STATED IN UNITED STATES V. MASONITE CORP., 316 U.S. 265, 278, 280:

"THIS COURT HAS QUITE CONSISTENTLY REFUSED TO ALLOW THE FORM INTO
WHICH THE PARTIES CHOSE TO CAST THE TRANSACTION TO GOVERN. 

      *         *         *         *          * 

"SO FAR AS THE SHERMAN ACT IS CONCERNED, THE RESULT MUST TURN NOT ON
THE SKILL WITH WHICH COUNSEL HAS MANIPULATED THE CONCEPTS OF 'SALE' AND
'AGENCY' BUT ON THE SIGNIFICANCE OF THE BUSINESS PRACTICES IN TERMS OF
RESTRAINT OF TRADE." 

THE IMPACT OF TODAY'S DECISION ON SCHWINN MAY BE SLIGHT, BECAUSE OVER
75% OF ITS DISTRIBUTION IS DONE THROUGH THE SCHWINN PLAN, WHICH THE
COURT UPHOLDS.  PERHAPS SCHWINN CAN REARRANGE THE LEGAL TERMINOLOGY OF
ITS OTHER DISTRIBUTIONAL ARRANGEMENTS TO AVOID "THE ANCIENT RULE
AGAINST RESTRAINTS ON ALIENATION" WHICH THE COURT ADOPTS.  PERHAPS
OTHER MANUFACTURERS WHO USE SALES AS A MEANS OF DISTRIBUTION IN A
FRANCHISE OR ANALOGOUS MARKETING SYSTEM CAN DO LIKEWISE.  IF THEY CAN,
THE COURT HAS CREATED CONSIDERABLE BUSINESS FOR LEGAL DRAFTSMEN.  IF
THEY CANNOT, VERTICAL INTEGRATION AND THE ELIMINATION OF SMALL
INDEPENDENT COMPETITORS ARE LIKELY TO FOLLOW.  MEANWHILE, THE COURT
HAS, SUA SPONTE, CREATED A BLUNTLY INDISCRIMINATE AND DESTRUCTIVE
WEAPON WHICH CAN BE USED TO DISMANTLE A VAST VARIETY OF DISTRIBUTIONAL
SYSTEMS - COMPETITIVE AND ANTICOMPETITIVE, REASONABLE AND
UNREASONABLE. 

IN VIEW OF THE COMMENDABLY CAREFUL AND REALISTIC APPROACH THE COURT
HAS TAKEN IN ANALYZING THE BASIC STRUCTURE OF SCHWINN'S MARKETING
PROGRAM, IT IS PARTICULARLY DISAPPOINTING TO SEE THE COURT BALK AT THE
LABEL "SALE," AND TURN FROM REASONED RESPONSE TO A WOODEN AND
IRRELEVANT FORMULA. 

FN1  THE DISTRICT COURT FOUND THAT:  "BICYCLES ARE IN CONSTANT NEED
OF SERVICE.  HARDWARE STORES, DEPARTMENT STORES, AND MOST OTHER SALES
OUTLETS DO NOT FURNISH THESE SERVICES.  RETAIL CYCLE OUTLETS DO.  THAT
IS THE TYPE OF BUSINESS ESTABLISHMENT THAT SCHWINN HAS TURNED TO AS
THEIR LOCAL SALES REPRESENTATIVES."  237 F. SUPP. 323, 335. 

FN2  237 F. SUPP., AT 338. 

FN3  IBID. 

FN4  IN THE 1951-1961 PERIOD, SCHWINN'S PRICES FELL BETWEEN 9% AND
12%, AND ITS PROFITS ALSO DECLINED.  THE MARGINS OF ITS WHOLESALERS AND
RETAILERS WERE REDUCED ABOUT 10% DURING THE SAME PERIOD. 

FN5  237 F. SUPP., AT 338. 

FN6  THIS PREMISE IS COMMON TO ALL FORMS OF FRANCHISING.  SEE LEWIS &
HANCOCK, THE FRANCHISE SYSTEM OF DISTRIBUTION 4, 9 (1963). 

FN7  SEE LEWIS & HANCOCK, THE FRANCHISE SYSTEM OF DISTRIBUTION
(1963); SMALL BUSINESS ADMINISTRATION, MANAGEMENT AIDS FOR SMALL
MANUFACTURERS, NO. 182, "EXPANDING SALES THROUGH FRANCHISING" (1966). 

FN8  SUSSER V. CARVEL CORP., 206 F. SUPP. 636, 640, AFF'D 332 F.2D
505, CERT. GRANTED, 379 U.S. 885, CERT. DISMISSED, 381 U.S. 125.  SEE
ALSO DISTRIBUTION PROBLEMS AFFECTING SMALL BUSINESS, HEARINGS BEFORE
THE SUBCOMMITTEE ON ANTITRUST AND MONOPOLY, SENATE COMMITTEE ON THE
JUDICIARY, 89TH CONG., 1ST SESS., 7-9, 12-13 (STATEMENT OF SMALL
BUSINESS ADMINISTRATION ADMINISTRATOR EUGENE P. FOLEY), 90 (STATEMENT
OF FEDERAL TRADE COMMISSION CHAIRMAN PAUL RAND DIXON)(MARCH 1965);
LEWIS & HANCOCK, THE FRANCHISE SYSTEM OF DISTRIBUTION 91-92 (1963);
HANDLER, STATEMENT BEFORE THE SMALL BUSINESS ADMINISTRATION, 11
ANTITRUST BULL.  417, 419. 

FN9  WILSON, SOME PROBLEMS RELATIVE TO FRANCHISE ARRANGEMENTS, 11
ANTITRUST BULL.  473, 488.  IT SHOULD BE NOTED THAT SINCE THE START OF
THIS LITIGATION, SCHWINN HAS TAKEN OVER 30% OF THE WHOLESALING OF ITS
PRODUCTS BY VERTICAL INTEGRATION. 

FN10  THE COURT CITES DR. MILES MEDICAL CO. V. PARK & SONS CO., 220
U.S. 373, BUT THAT CASE WAS DENIED ON COMMON-LAW PRINCIPLES AND
INVOLVED PRICE-FIXING, LONG RECOGNIZED BY THIS COURT AS PER SE
INVALID. 

FN11  237 F. SUPP., AT 342. 

FN12  ONE DIFFERENCE BETWEEN A HORIZONTAL CONSPIRACY AND VERTICAL
RESTRAINTS IMPOSED BY THE MANUFACTURER IS THAT THERE IS OFTEN SERIOUS
QUESTION WHETHER THE LATTER CONDUCT INVOLVES THE "CONTRACT, COMBINATION
...  OR CONSPIRACY" REQUIRED BY SEC 1 OF THE SHERMAN ACT, 26 STAT.
209, AS AMENDED, 15 U.S.C. SEC 1.  THE DISTRICT JUDGE IN THIS CASE
REFUSED TO FIND THAT THE RELEVANT CONDUCT OF SCHWINN AND ITS
DISTRIBUTORS AMOUNTED TO A "CONTRACT," "COMBINATION" OR "CONSPIRACY,"
INSTEAD, HE STATED THAT "THE SCHWINN FRANCHISING PROGRAM WAS CONCEIVED,
HATCHED AND BORN INTO LIFE  ...  IN THE MINDS OF THE SCHWINN
OFFICIALS," AND AGREED THAT "THE ACTION WAS UNILATERAL IN NATURE." 
ALTHOUGH ESSENTIAL TO ITS CASE, THE GOVERNMENT FAILED SPECIFICALLY TO
RAISE THIS ISSUE IN ITS JURISDICTIONAL STATEMENT, AND I MUST REGISTER
MY DISAGREEMENT WITH THE COURT'S CURSORY TREATMENT OF THE MATTER.  THE
COURT MERELY NOTES THAT "SCHWINN HAS BEEN 'FIRM AND RESOLUTE' IN
INSISTING UPON OBSERVANCE" OF THE RESTRICTIONS INVOLVED IN ITS
FRANCHISING PROGRAM AND THAT THERE WAS A "COMMUNICATED DANGER OF
TERMINATION" FOR VIOLATIONS OF ITS POLICIES.  THIS ALONE DOES NOT
AMOUNT TO "CONTRACT," "COMBINATION" OR "CONSPIRACY" UNDER ESTABLISHED
PRECEDENT.  UNITED STATES V. COLGATE & CO., 250 U.S. 300; UNITED STATES
V. PARKE, DAVIS & CO., 362 U.S. 29. 

FN13  2 COKE, INSTITUTES OF THE LAWS OF ENGLAND SEC 360 (DAY ED.
1812). 

FN14  IBID. 

FN15  SEE ELMAN, "PETRIFIED OPINIONS" AND COMPETITIVE REALITIES, 66
COL. L. REV. 625. 

FN16  SEE JORDAN, EXCLUSIVE AND RESTRICTED SALES AREAS UNDER THE
ANTITRUST LAWS, 9 U.C.L.A. L. REV. 111; MCLAREN, TERRITORIAL
RESTRICTIONS, EXCLUSIVE DEALING, AND RELATED SALES DISTRIBUTION
PROBLEMS UNDER THE ANTITRUST LAWS, 11 PRAC.  LAW.  NO. 4, 79; PRESTON,
RESTRICTIVE DISTRIBUTION ARRANGEMENTS:  ECONOMIC ANALYSIS AND PUBLIC
POLICY STANDARDS, 30 LAW & CONTEMP.  PROB.  506; ROBINSON, RESTRAINTS
ON TRADE AND THE ORDERLY MARKETING OF GOODS, 45 CORNELL L.Q. 254; NOTE,
RESTRICTED CHANNELS OF DISTRIBUTION UNDER THE SHERMAN ACT, 75 HARV. L.
REV. 795. 

FN17  CHAFEE, EQUITABLE SERVITUDES ON CHATTELS, 41 HARV. L. REV. 945,
983. 
..END :













PRIMA PAINT V. FLOOD & CONKLIN 388 U.S. 395 


NO. 343.  ARGUED MARCH 16, 1967.  - DECIDED JUNE 12, 1967.  - 360 F.2D
315, AFFIRMED. 


RESPONDENT (F & C), A NEW JERSEY CORPORATION WHICH MANUFACTURED AND
SOLD PAINT AND PAINT PRODUCTS TO WHOLESALE CUSTOMERS IN A NUMBER OF
STATES, ENTERED INTO A CONTRACT WITH PETITIONER (PRIMA), A MARYLAND
CORPORATION, WHEREBY F & C AGREED TO PERFORM CONSULTING AND OTHER
SERVICES RELATING TO THE TRANSFER OF OPERATIONS FROM F & C TO PRIMA AND
AGREED NOT TO COMPETE WITH PRIMA, FOR WHICH PRIMA AGREED TO PAY, OVER
THE SIX-YEAR LIFE OF THE CONTRACT, CERTAIN PERCENTAGES OF RECEIPTS FROM
SALES.  THE CONTRACT, WHICH STATED THAT IT "EMBODIES THE ENTIRE
UNDERSTANDING OF THE PARTIES," CONTAINED A BROAD ARBITRATION CLAUSE
THAT "ANY CONTROVERSY  ...  ARISING OUT OF THIS AGREEMENT, OR THE
BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION IN THE CITY OF NEW YORK
IN ACCORDANCE WITH THE RULES  ... OF THE AMERICAN ARBITRATION
ASSOCIATION."  ALMOST A YEAR LATER, AFTER THE FIRST PAYMENT HAD BECOME
DUE, PRIMA NOTIFIED F & C THAT F & C HAD BROKEN THE CONSULTING
AGREEMENT AND AN EARLIER AGREEMENT INVOLVING PRIMA'S PURCHASE OF F &
C'S PAINT BUSINESS.  PRIMA'S CHIEF CONTENTION WAS THAT F & C HAD
FRAUDULENTLY REPRESENTED THAT IT WAS SOLVENT AND ABLE TO PERFORM ITS
OBLIGATIONS WHEREAS IT WAS INSOLVENT AND PLANNED TO FILE A BANKRUPTCY
PETITION SHORTLY AFTER EXECUTING THE CONSULTING AGREEMENT.  F & C
RESPONDED BY SERVING A NOTICE OF INTENTION TO ARBITRATE, WHEREUPON
PRIMA FILED THIS DIVERSITY ACTION IN FEDERAL COURT FOR RESCISSION OF
THE CONSULTING AGREEMENT ON THE BASIS OF THE ALLEGED FRAUDULENT
INDUCEMENT AND CONTEMPORANEOUSLY SOUGHT TO ENJOIN F & C FROM PROCEEDING
WITH ARBITRATION.  THE UNITED STATES ARBITRATION ACT OF 1925 PROVIDES,
IN SEC 2, THAT A WRITTEN ARBITRATION PROVISION "IN ANY  ...  CONTRACT
EVIDENCING A TRANSACTION INVOLVING COMMERCE  ...  SHALL BE VALID,
IRREVOCABLE, AND ENFORCEABLE, SAVE UPON SUCH GROUNDS AS EXIST AT LAW OR
IN EQUITY FOR THE REVOCATION OF ANY CONTRACT"; IN SEC 3, THAT A FEDERAL
COURT IN WHICH SUIT IS BROUGHT UPON AN ISSUE REFERABLE TO ARBITRATION
BY AN ARBITRATION AGREEMENT MUST STAY THE COURT ACTION PENDING
ARBITRATION ONCE IT HAS DECIDED THAT THE ISSUE IS ARBITRABLE UNDER THE
AGREEMENT; AND, IN SEC 4, THAT A FEDERAL COURT WHOSE ASSISTANCE IS
INVOKED BY A PARTY SEEKING TO COMPEL ANOTHER TO ARBITRATE, IF SATISFIED
THAT AN ARBITRATION AGREEMENT HAS NOT BEEN HONORED AND THAT "THE MAKING
OF THE AGREEMENT FOR ARBITRATION OR THE FAILURE TO COMPLY WITH THE
ARBITRATION AGREEMENT IS NOT IN ISSUE," SHALL ORDER ARBITRATION.  THE
DISTRICT COURT GRANTED A MOTION FILED BY F & C TO STAY THE ACTION
PENDING ARBITRATION, AND THE COURT OF APPEALS DISMISSED PRIMA'S
APPEAL.  HELD: 

1.  THE CONTRACT CLEARLY EVIDENCED A TRANSACTION INVOLVING INTERSTATE
COMMERCE AND CAME WITHIN THE COVERAGE OF THE ARBITRATION ACT.  P. 401. 

2.  IN PASSING UPON AN APPLICATION FOR A STAY OF ARBITRATION UNDER
SEC 3 OF THE ACT, A FEDERAL COURT MAY NOT CONSIDER A CLAIM OF FRAUD IN
THE INDUCEMENT OF THE CONTRACT GENERALLY BUT "MAY CONSIDER ONLY THE
ISSUES RELATING TO THE MAKING AND PERFORMANCE OF THE AGREEMENT TO
ARBITRATE."  PP. 402-404. 

3.  THE ACT PRESCRIBES THE MANNER IN WHICH FEDERAL COURTS ARE TO
TREAT QUESTIONS RELATING TO ARBITRATION CLAUSES IN CONTRACTS WHICH
INVOLVE INTERSTATE COMMERCE OR ADMIRALTY, "SUBJECT MATTER OVER WHICH
CONGRESS PLAINLY HAS POWER TO LEGISLATE."  HENCE, STATE RULES
ALLOCATING FUNCTIONS BETWEEN COURT AND ARBITRATOR DO NOT CONTROL.  PP.
404-405. 

4.  SINCE THE CLAIM OF FRAUD HERE RELATES TO INDUCEMENT OF THE
CONSULTING AGREEMENT GENERALLY RATHER THAN IN THE ARBITRATION CLAUSE
AND THERE IS NO EVIDENCE THAT THE PARTIES INTENDED TO WITHHOLD THIS
ISSUE FROM ARBITRATION, THERE IS NO BASIS FOR GRANTING A STAY UNDER SEC
3.  PP. 406-407. 

PRIMA PAINT CORP. V. FLOOD & CONKLIN MFG. CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER THE FEDERAL COURT OR AN
ARBITRATOR IS TO RESOLVE A CLAIM OF "FRAUD IN THE INDUCEMENT," UNDER A
CONTRACT GOVERNED BY THE UNITED STATES ARBITRATION ACT OF 1925, (FN1)
WHERE THERE IS NO EVIDENCE THAT THE CONTRACTING PARTIES INTENDED TO
WITHHOLD THAT ISSUE FROM ARBITRATION. 

THE QUESTION ARISES FROM THE FOLLOWING SET OF FACTS.  ON OCTOBER 7,
1964, RESPONDENT, FLOOD & CONKLIN MANUFACTURING COMPANY, A NEW JERSEY
CORPORATION, ENTERED INTO WHAT WAS STYLED A "CONSULTING AGREEMENT,"
WITH PETITIONER, PRIMA PAINT CORPORATION, A MARYLAND CORPORATION.  THIS
AGREEMENT FOLLOWED BY LESS THAN THREE WEEKS THE EXECUTION OF A CONTRACT
PURSUANT TO WHICH PRIMA PAINT PURCHASED F & C'S PAINT BUSINESS.  THE
CONSULTING AGREEMENT PROVIDED THAT FOR A SIX-YEAR PERIOD F & C WAS TO
FURNISH ADVICE AND CONSULTATION "IN CONNECTION WITH THE FORMULAE,
MANUFACTURING OPERATIONS, SALES AND SERVICING OF PRIMA TRADE SALES
ACCOUNTS."  THESE SERVICES WERE TO BE PERFORMED PERSONALLY BY F & C'S
CHAIRMAN, JEROME K. JELIN, "EXCEPT IN THE EVENT OF HIS DEATH OR
DISABILITY."  F & C BOUND ITSELF FOR THE DURATION OF THE CONTRACTUAL
PERIOD TO MAKE NO "TRADE SALES" OF PAINT OR PAINT PRODUCTS IN ITS
EXISTING SALES TERRITORY OR TO CURRENT CUSTOMERS.  TO THE CONSULTING
AGREEMENT WERE APPENDED LISTS OF F & C CUSTOMERS, WHOSE PATRONAGE WAS
TO BE TAKEN OVER BY PRIMA PAINT.  IN RETURN FOR THESE LISTS, THE
COVENANT NOT TO COMPETE, AND THE SERVICES OF MR. JELIN, PRIMA PAINT
AGREED TO PAY F & C CERTAIN PERCENTAGES OF ITS RECEIPTS FROM THE LISTED
CUSTOMERS AND FROM ALL OTHERS, SUCH PAYMENTS NOT TO EXCEED $225,000
OVER THE LIFE OF THE AGREEMENT.  THE AGREEMENT TOOK INTO ACCOUNT THE
POSSIBILITY THAT PRIMA PAINT MIGHT ENCOUNTER FINANCIAL DIFFICULTIES,
INCLUDING BANKRUPTCY, BUT NO CORRESPONDING REFERENCE WAS MADE TO
POSSIBLE FINANCIAL PROBLEMS WHICH MIGHT BE ENCOUNTERED BY F & C.  THE
AGREEMENT STATED THAT IT "EMBODIES THE ENTIRE UNDERSTANDING OF THE
PARTIES ON THE SUBJECT MATTER."  FINALLY, THE PARTIES AGREED TO A BROAD
ARBITRATION CLAUSE, WHICH READ IN PART: 

"ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION IN
THE CITY OF NEW YORK, IN ACCORDANCE WITH THE RULES THEN OBTAINING OF
THE AMERICAN ARBITRATION ASSOCIATION  ...  ." 

THE FIRST PAYMENT BY PRIMA PAINT TO F & C UNDER THE CONSULTING
AGREEMENT WAS DUE ON SEPTEMBER 1, 1965.  NONE WAS MADE ON THAT DATE. 
SEVENTEEN DAYS LATER, PRIMA PAINT DID PAY THE APPROPRIATE AMOUNT, BUT
INTO ESCROW.  IT NOTIFIED ATTORNEYS FOR F & C THAT IN VARIOUS
ENUMERATED RESPECTS THEIR CLIENT HAD BROKEN BOTH THE CONSULTING
AGREEMENT AND THE EARLIER PURCHASE AGREEMENT.  PRIMA PAINT'S PRINCIPAL
CONTENTION, SO FAR AS PRESENTLY RELEVANT, WAS THAT F & C HAD
FRAUDULENTLY REPRESENTED THAT IT WAS SOLVENT AND ABLE TO PERFORM ITS
CONTRACTUAL OBLIGATIONS, WHEREAS IT WAS IN FACT INSOLVENT AND INTENDED
TO FILE A PETITION UNDER CHAPTER XI OF THE BANKRUPTCY ACT, 52 STAT.
905, 11 U.S.C. SEC 701 ET SEQ., SHORTLY AFTER EXECUTION OF THE
CONSULTING AGREEMENT.  PRIMA PAINT NOTED THAT SUCH A PETITION WAS FILED
BY F & C ON OCTOBER 14, 1964, ONE WEEK AFTER THE CONTRACT HAD BEEN
SIGNED.  F & C'S RESPONSE, ON OCTOBER 25, WAS TO SERVE A "NOTICE OF
INTENTION TO ARBITRATE."  ON NOVEMBER 12, THREE DAYS BEFORE EXPIRATION
OF ITS TIME TO ANSWER THIS "NOTICE," PRIMA PAINT FILED SUIT IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
SEEKING RESCISSION OF THE CONSULTING AGREEMENT ON THE BASIS OF THE
ALLEGED FRAUDULENT INDUCEMENT.  (FN2)  THE COMPLAINT ASSERTED THAT THE
FEDERAL COURT HAD DIVERSITY JURISDICTION. 

CONTEMPORANEOUSLY WITH THE FILING OF ITS COMPLAINT, PRIMA PAINT
PETITIONED THE DISTRICT COURT FOR AN ORDER ENJOINING F & C FROM
PROCEEDING WITH THE ARBITRATION.  F & C CROSS-MOVED TO STAY THE COURT
ACTION PENDING ARBITRATION.  F & C CONTENDED THAT THE ISSUE PRESENTED -
WHETHER THERE WAS FRAUD IN THE INDUCEMENT OF THE CONSULTING AGREEMENT -
WAS A QUESTION FOR THE ARBITRATORS AND NOT FOR THE DISTRICT COURT. 
CROSS-AFFIDAVITS WERE FILED ON THE MERITS.  ON BEHALF OF PRIMA PAINT,
THE CHARGES IN THE COMPLAINT WERE REITERATED.  AFFIANTS FOR F & C
ATTACKED THE SUFFICIENCY OF PRIMA PAINTS' ALLEGATIONS OF FRAUD, DENIED
THAT MISREPRESENTATIONS HAD BEEN MADE DURING NEGOTIATIONS, AND ASSERTED
THAT PRIMA PAINT HAD RELIED EXCLUSIVELY UPON DELIVERY OF THE LISTS, THE
PROMISE NOT TO COMPETE, AND THE AVAILABILITY OF MR. JELIN.  THEY
CONTENDED THAT PRIMA PAINT HAD AVAILED ITSELF OF THESE CONSIDERATIONS
FOR NEARLY A YEAR WITHOUT CLAIMING "FRAUD," NOTING THAT PRIMA PAINT WAS
IN NO POSITION TO CLAIM IGNORANCE OF THE BANKRUPTCY PROCEEDING SINCE IT
HAD PARTICIPATED THEREIN IN FEBRUARY OF 1965.  THEY ADDED THAT F & C
WAS REVESTED WITH ITS ASSETS IN MARCH OF 1965. 

THE DISTRICT COURT GRANTED F & C'S MOTION TO STAY THE ACTION PENDING
ARBITRATION, HOLDING THAT A CHARGE OF FRAUD IN THE INDUCEMENT OF A
CONTRACT CONTAINING AN ARBITRATION CLAUSE AS BROAD AS THIS ONE WAS A
QUESTION FOR THE ARBITRATORS AND NOT FOR THE COURT.  FOR THIS
PROPOSITION IT RELIED ON ROBERT LAWRENCE CO. V. DEVONSHIRE FABRICS,
INC., 271 F.2D 402 (C.A.2D CIR. 1959), CERT. GRANTED, 362 U.S. 909,
DISMISSED UNDER RULE 60, 364 U.S. 801 (1960).  THE COURT OF APPEALS FOR
THE SECOND CIRCUIT DISMISSED PRIMA PAINT'S APPEAL.  IT HELD THAT THE
CONTRACT IN QUESTION EVIDENCED A TRANSACTION INVOLVING INTERSTATE
COMMERCE; THAT UNDER THE CONTROLLING ROBERT LAWRENCE CO. DECISION A
CLAIM OF FRAUD IN THE INDUCEMENT OF THE CONTRACT GENERALLY - AS OPPOSED
TO THE ARBITRATION CLAUSE ITSELF - IS FOR THE ARBITRATORS AND NOT FOR
THE COURTS; AND THAT THIS RULE - ONE OF "NATIONAL SUBSTANTIVE LAW" -
GOVERNS EVEN IN THE FACE OF A CONTRARY STATE RULE,  (FN3)  WE AGREE,
ALBEIT FOR SOMEWHAT DIFFERENT REASONS, AND WE AFFIRM THE DECISION
BELOW. 

THE KEY STATUTORY PROVISIONS ARE SECS 2, 3, AND 4 OF THE UNITED
STATES ARBITRATION ACT OF 1925.  SECTION 2 PROVIDES THAT A WRITTEN
PROVISION FOR ARBITRATION "IN ANY MARITIME TRANSACTION OR A CONTRACT
EVIDENCING A TRANSACTION INVOLVING COMMERCE  ...  SHALL BE VALID,
IRREVOCABLE, AND ENFORCEABLE, SAVE UPON SUCH GROUNDS AS EXIST AT LAW OR
IN EQUITY FOR THE REVOCATION OF ANY CONTRACT."  (FN4)  SECTION 3
REQUIRES A FEDERAL COURT IN WHICH SUIT HAS BEEN BROUGHT "UPON ANY ISSUE
REFERABLE TO ARBITRATION UNDER AN AGREEMENT IN WRITING FOR SUCH
ARBITRATION" TO STAY THE COURT ACTION PENDING ARBITRATION ONCE IT IS
SATISFIED THAT THE ISSUE IS ARBITRABLE UNDER THE AGREEMENT.  SECTION 4
PROVIDES A FEDERAL REMEDY FOR A PARTY "AGGRIEVED BY THE ALLEGED
FAILURE, NEGLECT, OR REFUSAL OF ANOTHER TO ARBITRATE UNDER A WRITTEN
AGREEMENT FOR ARBITRATION," AND DIRECTS THE FEDERAL COURT TO ORDER
ARBITRATION ONCE IT IS SATISFIED THAT AN AGREEMENT FOR ARBITRATION HAS
BEEN MADE AND HAS NOT BEEN HONORED.  (FN5) 

IN BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198 (1956), THIS COURT HELD
THAT THE STAY PROVISIONS OF SEC 3, INVOKED HERE BY RESPONDENT F & C,
APPLY ONLY TO THE TWO KINDS OF CONTRACTS SPECIFIED IN SECS 1 AND 2 OF
THE ACT, NAMELY THOSE IN ADMIRALTY OR EVIDENCING TRANSACTIONS IN
"COMMERCE."  OUR FIRST QUESTION, THEN, IS WHETHER THE CONSULTING
AGREEMENT BETWEEN F & C AND PRIMA PAINT IS SUCH A CONTRACT.  WE AGREE
WITH THE COURT OF APPEALS THAT IT IS.  PRIMA PAINT ACQUIRED A NEW
JERSEY PAINT BUSINESS SERVING AT LEAST 175 WHOLESALE CLIENTS IN A
NUMBER OF STATES, AND SECURED F & C'S ASSISTANCE IN ARRANGING THE
TRANSFER OF MANUFACTURING AND SELLING OPERATIONS FROM NEW JERSEY TO
MARYLAND.  (FN6)  THE CONSULTING AGREEMENT WAS INEXTRICABLY TIED TO
THIS INTERSTATE TRANSFER AND TO THE CONTINUING OPERATIONS OF AN
INTERSTATE MANUFACTURING AND WHOLESALING BUSINESS.  THERE COULD NOT BE
A CLEARER CASE OF A CONTRACT EVIDENCING A TRANSACTION IN INTERSTATE
COMMERCE.  (FN7) 

HAVING DETERMINED THAT THE CONTRACT IN QUESTION IS WITHIN THE
COVERAGE OF THE ARBITRATION ACT, WE TURN TO THE CENTRAL ISSUE IN THIS
CASE:  WHETHER A CLAIM OF FRAUD IN THE INDUCEMENT OF THE ENTIRE
CONTRACT IS TO BE RESOLVED BY THE FEDERAL COURT, OR WHETHER THE MATTER
IS TO BE REFERRED TO THE ARBITRATORS.  THE COURTS OF APPEALS HAVE
DIFFERED IN THEIR APPROACH TO THIS QUESTION.  THE VIEW OF THE COURT OF
APPEALS FOR THE SECOND CIRCUIT, AS EXPRESSED IN THIS CASE AND IN
OTHERS, (FN8) IS THAT - EXCEPT WHERE THE PARTIES OTHERWISE INTEND -
ARBITRATION CLAUSES AS A MATTER OF FEDERAL LAW ARE "SEPARABLE" FROM THE
CONTRACTS IN WHICH THEY ARE EMBEDDED, AND THAT WHERE NO CLAIM IS MADE
THAT FRAUD WAS DIRECTED TO THE ARBITRATION CLAUSE ITSELF, A BROAD
ARBITRATION CLAUSE WILL BE HELD TO ENCOMPASS ARBITRATION OF THE CLAIM
THAT THE CONTRACT ITSELF WAS INDUCED BY FRAUD.  (FN9)  THE COURT OF
APPEALS FOR THE FIRST CIRCUIT, ON THE OTHER HAND, HAS TAKEN THE VIEW
THAT THE QUESTION OF "SEVERABILITY" IS ONE OF STATE LAW, AND THAT WHERE
A STATE REGARDS SUCH A CLAUSE AS INSEPARABLE A CLAIM OF FRAUD IN THE
INDUCEMENT MUST BE DECIDED BY THE COURT.  LUMMUS CO. V. COMMONWEALTH
OIL REF. CO., 280 F.2D 915, 923-924 (C.A. 1ST CIR.), CERT. DENIED, 364
U.S. 911 (1960).  (FN10) 

WITH RESPECT TO CASES BROUGHT IN FEDERAL COURT INVOLVING MARITIME
CONTRACTS OR THOSE EVIDENCING TRANSACTIONS IN "COMMERCE," WE THINK THAT
CONGRESS HAS PROVIDED AN EXPLICIT ANSWER.  THAT ANSWER IS TO BE FOUND
IN SEC 4 OF THE ACT, WHICH PROVIDES A REMEDY TO A PARTY SEEKING TO
COMPEL COMPLIANCE WITH AN ARBITRATION AGREEMENT.  UNDER SEC 4, WITH
RESPECT TO A MATTER WITHIN THE JURISDICTION OF THE FEDERAL COURTS SAVE
FOR THE EXISTENCE OF AN ARBITRATION CLAUSE, THE FEDERAL COURT IS
INSTRUCTED TO ORDER ARBITRATION TO PROCEED ONCE IT IS SATISFIED THAT
"THE MAKING OF THE AGREEMENT FOR ARBITRATION OR THE FAILURE TO COMPLY
WITH THE ARBITRATION AGREEMENT IS NOT IN ISSUE."  (FN11)  ACCORDINGLY,
IF THE CLAIM IS FRAUD IN THE INDUCEMENT OF THE ARBITRATION CLAUSE
ITSELF - AN ISSUE WHICH GOES TO THE "MAKING" OF THE AGREEMENT TO
ARBITRATE - THE FEDERAL COURT MAY PROCEED TO ADJUDICATE IT.  (FN12) BUT
THE STATUTORY LANGUAGE DOES NOT PERMIT THE FEDERAL COURT TO CONSIDER
CLAIMS OF FRAUD IN THE INDUCEMENT OF THE CONTRACT GENERALLY.  SECTION 4
DOES NOT EXPRESSLY RELATE TO SITUATIONS LIKE THE PRESENT IN WHICH A
STAY IS SOUGHT OF A FEDERAL ACTION IN ORDER THAT ARBITRATION MAY
PROCEED.  BUT IT IS INCONCEIVABLE THAT CONGRESS INTENDED THE RULE TO
DIFFER DEPENDING UPON WHICH PARTY TO THE ARBITRATION AGREEMENT FIRST
INVOKES THE ASSISTANCE OF A FEDERAL COURT.  WE HOLD, THEREFORE, THAT IN
PASSING UPON A SEC 3 APPLICATION FOR A STAY WHILE THE PARTIES
ARBITRATE, A FEDERAL COURT MAY CONSIDER ONLY ISSUES RELATING TO THE
MAKING AND PERFORMANCE OF THE AGREEMENT TO ARBITRATE.  IN SO
CONCLUDING, WE NOT ONLY HONOR THE PLAIN MEANING OF THE STATUTE BUT ALSO
THE UNMISTAKABLY CLEAR CONGRESSIONAL PURPOSE THAT THE ARBITRATION
PROCEDURE, WHEN SELECTED BY THE PARTIES TO A CONTRACT, BE SPEEDY AND
NOT SUBJECT TO DELAY AND OBSTRUCTION IN THE COURTS. 

THERE REMAINS THE QUESTION WHETHER SUCH A RULE IS CONSTITUTIONALLY
PERMISSIBLE.  THE POINT IS MADE THAT, WHATEVER THE NATURE OF THE
CONTRACT INVOLVED HERE, THIS CASE IS IN FEDERAL COURT SOLELY BY REASON
OF DIVERSITY OF CITIZENSHIP, AND THAT SINCE THE DECISION IN ERIE R. CO.
V. TOMPKINS, 304 U.S. 64 (1938), FEDERAL COURTS ARE BOUND IN DIVERSITY
CASES TO FOLLOW STATE RULES OF DECISION IN MATTERS WHICH ARE
"SUBSTANTIVE" RATHER THAN "PROCEDURAL," OR WHERE THE MATTER IS "OUTCOME
DETERMINATIVE."  GUARANTY TRUST CO. V. YORK, 326 U.S. 99 (1945).  THE
QUESTION IN THIS CASE, HOWEVER, IS NOT WHETHER CONGRESS MAY FASHION
FEDERAL SUBSTANTIVE RULES TO GOVERN QUESTIONS ARISING IN SIMPLE
DIVERSITY CASES.  SEE BERNHARDT V. POLYGRAPHIC CO., SUPRA, AT 202, AND
CONCURRING OPINION, AT 208.  RATHER, THE QUESTION IS WHETHER CONGRESS
MAY PRESCRIBE HOW FEDERAL COURTS ARE TO CONDUCT THEMSELVES WITH RESPECT
TO SUBJECT MATTER OVER WHICH CONGRESS PLAINLY HAS POWER TO LEGISLATE. 
THE ANSWER TO THAT CAN ONLY BE IN THE AFFIRMATIVE.  AND IT IS CLEAR
BEYOND DISPUTE THAT THE FEDERAL ARBITRATION STATUTE IS BASED UPON THE
CONFINED TO THE INCONTESTABLE FEDERAL FOUNDATIONS OF "CONTROL OVER
INTERSTATE COMMERCE AND OVER ADMIRALTY."  H.R. REP. NO. 96, 68TH CONG.,
1ST SESS., 1 (1924); S. REP. NO. 536, 68TH CONG., 1ST SESS., 3 (1924). 
(FN13) 

IN THE PRESENT CASE NO CLAIM HAS BEEN ADVANCED BY PRIMA PAINT THAT F
& C FRAUDULENTLY INDUCED IT TO ENTER INTO THE AGREEMENT TO ARBITRATE
"ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE BREACH THEREOF."  THIS CONTRACTUAL LANGUAGE IS EASILY BROAD
ENOUGH TO ENCOMPASS PRIMA PAINT'S CLAIM THAT BOTH EXECUTION AND
ACCELERATION OF THE CONSULTING AGREEMENT ITSELF WERE PROCURED BY
FRAUD.  INDEED, NO CLAIM IS MADE THAT PRIMA PAINT EVER INTENDED THAT
"LEGAL" ISSUES RELATING TO THE CONTRACT BE EXCLUDED FROM ARBITRATION,
OR THAT IT WAS NOT ENTIRELY FREE SO TO CONTRACT.  FEDERAL COURTS ARE
BOUND TO APPLY RULES ENACTED BY CONGRESS WITH RESPECT TO MATTERS -
HERE, A CONTRACT INVOLVING COMMERCE - OVER WHICH IT HAS LEGISLATIVE
POWER.  THE QUESTION WHICH PRIMA PAINT REQUESTED THE DISTRICT COURT TO
ADJUDICATE PRELIMINARILY TO ALLOWING ARBITRATION TO PROCEED IS ONE NOT
INTENDED BY CONGRESS TO DELAY THE GRANTING OF A SEC 3 STAY. 
ACCORDINGLY, THE DECISION BELOW DISMISSING PRIMA PAINT'S APPEAL IS
AFFIRMED.    FN1  9 U.S.C. SECS 1-14. 

FN2  ALTHOUGH THE LETTER TO F & C'S ATTORNEYS HAD ALLEGED BREACHES OF
BOTH CONSULTING AND PURCHASING AGREEMENTS, AND THE FRAUDULENT
INDUCEMENT OF BOTH, THE COMPLAINT DID NOT REFER TO THE EARLIER PURCHASE
AGREEMENT, ALLEGING ONLY THAT PRIMA PAINT HAD BEEN "FRAUDULENTLY
INDUCED TO ACCELERATE THE EXECUTION AND CLOSING DATE OF THE CONSULTING
AGREEMENT HEREIN, FROM OCTOBER 21, 1964 TO OCTOBER 7, 1964  ...  ." 

FN3  WHETHER A PARTY SEEKING RESCISSION OF A CONTRACT ON THE GROUND
OF FRAUDULENT INDUCEMENT MAY IN NEW YORK OBTAIN JUDICIAL RESOLUTION OF
HIS CLAIM IS NOT ENTIRELY CLEAR.  COMPARE EXERCYCLE CORP. V. MARATTA, 9
N.Y.2D 329, 334, 174 N.E.2D 463, 465 (1961), AND AMEROTRON CORP. V.
MAXWELL SHAPIRO WOOLEN CO., 3 APP. DIV. 2D 899, 162 N.Y.S.2D 214
(1957), AFF'D, 4 N.Y.2D 722, 148 N.E.2D 319 (1958), WITH FABREX CORP.
V. WINARD SALES CO., 23 MISC. 2D 26, 200 N.Y.S.2D 278 (1960).  IN LIGHT
OF OUR DISPOSITION OF THIS CASE, WE NEED NOT DECIDE THE STATUS OF THE
ISSUE UNDER NEW YORK LAW. 

FN4  THE MEANING OF "MARITIME TRANSACTION" AND "COMMERCE" IS SET
FORTH IN SEC 1 OF THE ACT. 

FN5  SEE, INFRA, AT 403-404. 

FN6  THIS CONCLUSION IS AMPLY SUPPORTED BY AN AFFIDAVIT SUBMITTED TO
THE DISTRICT COURT BY PRIMA PAINT'S OWN PRESIDENT, WHICH READ IN PART: 

"THE AGREEMENT ENTERED INTO BETWEEN THE PARTIES ON OCTOBER 7, 1964,
CONTEMPLATED AND INTENDED AN ORDERLY TRANSFER OF THE ASSETS OF THE
DEFENDANT TO THE PLAINTIFF, AND FURTHER CONTEMPLATED AND INTENDED THAT
THE DEFENDANT WOULD CONSULT, ADVISE, ASSIST AND HELP THE PLAINTIFF SO
AS TO INSURE A SMOOTH TRANSITION OF MANUFACTURING OPERATIONS TO
MARYLAND FROM NEW JERSEY, TOGETHER WITH THE SALES AND SERVICING OF
CUSTOMER ACCOUNTS AND THE RETENTION OF THE SAID CUSTOMERS." 

THE AFFIDAVITS' REFERENCES TO A "TRANSFER OF THE ASSETS" CANNOT
FAIRLY BE READ TO MEAN ONLY "EXPERTISE AND KNOW-HOW ...  AND A COVENANT
NOT TO COMPETE," AS ARGUED BY COUNSEL FOR PETITIONER. 

FN7  IT IS SUGGESTED IN DISSENT THAT, DESPITE THE ABSENCE OF ANY
LANGUAGE IN THE STATUTE SO INDICATING, WE SHOULD CONSTRUE IT TO APPLY
ONLY TO "CONTRACTS BETWEEN MERCHANTS FOR THE INTERSTATE SHIPMENT OF
GOODS."  NOT ONLY HAVE WE NEITHER THE DESIRE NOR THE WARRANT SO TO
AMEND THE STATUTE, BUT WE FIND PERSUASIVE AND AUTHORITATIVE EVIDENCE OF
A CONTRARY LEGISLATIVE INTENT.  SEE, E.G., THE HOUSE REPORT ON THIS
LEGISLATION WHICH PROCLAIMS THAT "THE CONTROL OVER INTERSTATE COMMERCE
(ONE OF THE BASES FOR THE LEGISLATION) REACHES NOT ONLY THE ACTUAL
PHYSICAL INTERSTATE SHIPMENT OF GOODS BUT ALSO CONTRACTS RELATING TO
INTERSTATE COMMERCE."  H.R. REP. NO. 96, 68TH CONG., 1ST SESS., 1
(1924).   WE NOTE, TOO, THAT WERE THE DISSENT'S CURIOUS NARROWING OF
THE STATUTE CORRECT, THERE WOULD HAVE BEEN NO NECESSITY FOR CONGRESS TO
HAVE AMENDED THE STATUTE TO EXCLUDE CERTAIN KINDS OF EMPLOYMENT
CONTRACTS.  SEE SEC 1.  IN ANY EVENT, THE ANOMALY URGED UPON US IN
DISSENT IS MANIFESTED BY THE PRESENT CASE.  IT WOULD BE REMARKABLE TO
SAY THAT A CONTRACT FOR THE PURCHASE OF A SINGLE CAN OF PAINT MAY
EVIDENCE A TRANSACTION IN INTERSTATE COMMERCE, BUT THAT AN AGREEMENT
RELATING TO THE FACILITATION OF THE PURCHASE OF AN ENTIRE INTERSTATE
PAINT BUSINESS AND ITS RE-ESTABLISHMENT AND OPERATION IN ANOTHER STATE
IS NOT. 

FN8  IN ADDITION TO ROBERT LAWRENCE CO., SUPRA, SEE IN RE KINOSHITA &
CO., 287 F.2D 951 (C.A.2D CIR. 1961).  WITH RESPECT TO CLAIMS OTHER
THAN FRAUD IN THE INDUCEMENT, THE COURT HAS FOLLOWED A SIMILAR PROCESS
OF ANALYSIS.  SEE, E.G., METRO INDUSTRIAL PAINTING CORP. V. TERMINAL
CONSTR.  CO., 287 F.2D 382 (C.A.2D CIR. 1961)(DISPUTE OVER
PERFORMANCE); EL HOSS ENGINEER.  & TRANSPORT CO. V. AMERICAN IND. OIL
CO., 289 F.2D 346 (C.A.2D CIR. 1961)(WHERE, HOWEVER, THE COURT FOUND AN
INTENT NOT TO SUBMIT THE ISSUE IN QUESTION TO ARBITRATION). 

FN9  THE COURT OF APPEALS HAS BEEN CAREFUL TO HONOR EVIDENCE THAT THE
PARTIES INTENDED TO WITHHOLD SUCH ISSUES FROM THE ARBITRATORS AND TO
RESERVE THEM FOR JUDICIAL RESOLUTION.  SEE EL HOSS ENGINEER.  &
TRANSPORT CO. V. AMERICAN IND. OIL CO., SUPRA.  WE NOTE THAT CATEGORIES
OF CONTRACTS OTHERWISE WITHIN THE ARBITRATION ACT BUT IN WHICH ONE OF
THE PARTIES CHARACTERISTICALLY HAS LITTLE BARGAINING POWER ARE
EXPRESSLY EXCLUDED FROM THE REACH OF THE ACT.  SEE SEC 1. 

FN10  THESE CASES AND OTHERS ARE DISCUSSED IN A RECENT NOTE,
COMMERCIAL ARBITRATION IN FEDERAL COURTS, 20 VAND.  L. REV. 607, 622
625 (1967). 

FN11  SECTION 4 READS IN PART:  "THE COURT SHALL HEAR THE PARTIES,
AND UPON BEING SATISFIED THAT THE MAKING OF THE AGREEMENT FOR
ARBITRATION OR THE FAILURE TO COMPLY THEREWITH IS NOT IN ISSUE, THE
COURT SHALL MAKE AN ORDER DIRECTING THE PARTIES TO PROCEED TO
ARBITRATION IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT  ...  .  IF
THE MAKING OF THE ARBITRATION AGREEMENT OR THE FAILURE, NEGLECT, OR
REFUSAL TO PERFORM THE SAME BE IN ISSUE, THE COURT SHALL PROCEED
SUMMARILY TO THE TRIAL THEREOF." 

FN12  THIS POSITION IS CONSISTENT BOTH WITH THE DECISION IN MOSELEY
V. ELECTRONIC FACILITIES, 374 U.S. 167, 171, 172 (1963), AND WITH THE
STATUTORY SCHEME.  AS THE "SAVING CLAUSE" IN SEC 2 INDICATES, THE
PURPOSE OF CONGRESS IN 1925 WAS TO MAKE ARBITRATION AGREEMENTS AS
ENFORCEABLE AS OTHER CONTRACTS, BUT NOT MORE SO.  TO IMMUNIZE AN
ARBITRATION AGREEMENT FROM JUDICIAL CHALLENGE ON THE GROUND OF FRAUD IN
THE INDUCEMENT WOULD BE TO ELEVATE IT OVER OTHER FORMS OF CONTRACT - A
SITUATION INCONSISTENT WITH THE "SAVING CLAUSE." 

FN13  IT IS TRUE THAT THE ARBITRATION ACT WAS PASSED 13 YEARS BEFORE
THIS COURT'S DECISION IN ERIE R. CO. V. TOMPKINS, SUPRA, BROUGHT TO AN
END THE REGIME OF SWIFT V. TYSON, 16 PET. 1 (1842), AND THAT AT THE
TIME OF ENACTMENT CONGRESS HAD REASON TO BELIEVE THAT IT STILL HAD
POWER TO CREATE FEDERAL RULES TO GOVERN QUESTIONS OF "GENERAL LAW"
ARISING IN SIMPLE DIVERSITY CASES - AT LEAST, ABSENT ANY STATE STATUTE
TO THE CONTRARY.  IF CONGRESS RELIED AT ALL ON THIS "OFT-CHALLENGED"
POWER, SEE ERIE R. CO., 304 U.S., AT 69, IT WAS ONLY SUPPLEMENTARY TO
THE ADMIRALTY AND COMMERCE POWERS, WHICH FORMED THE PRINCIPAL BASES OF
THE LEGISLATION.  INDEED, CONGRESSMAN GRAHAM, THE BILL'S SPONSOR IN THE
HOUSE, TOLD HIS COLLEAGUES THAT IT "ONLY AFFECTS CONTRACTS RELATING TO
INTERSTATE SUBJECTS AND CONTRACTS IN ADMIRALTY."  65 CONG. REC. 1931
(1924).  THE SENATE REPORT ON THIS LEGISLATION SIMILARLY INDICATED THAT
THE BILL "RELATES TO MARITIME TRANSACTIONS AND TO CONTRACTS IN
INTERSTATE AND FOREIGN COMMERCE."  S. REP. NO. 536, 68TH CONG., 1ST
SESS., 3 (1924). 

NON-CONGRESSIONAL SPONSORS OF THE LEGISLATION AGREED.  AS MR. CHARLES
L. BERNHEIMER, CHAIRMAN OF THE ARBITRATION COMMITTEE OF THE NEW YORK
CHAMBER OF COMMERCE, TOLD THE SENATE SUBCOMMITTEE, THE PROPOSED
LEGISLATION "FOLLOWS THE LINES OF THE NEW YORK ARBITRATION LAW,
APPLYING IT TO THE FIELDS WHEREIN THERE IS FEDERAL JURISDICTION.  THESE
FIELDS ARE IN ADMIRALTY AND IN FOREIGN AND INTERSTATE COMMERCE." 
HEARING ON S. 4213 AND S. 4214, BEFORE THE SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 67TH CONG., 4TH SESS., 2 (1923).  IN THE
JOINT HOUSE AND SENATE HEARINGS, MR. BERNHEIMER ANSWERED "YES;
ENTIRELY," TO THE STATEMENT OF THE CHAIRMAN, SENATOR STERLING, THAT
"WHAT YOU HAVE IN MIND IS THAT THIS PROPOSED LEGISLATION RELATES TO
CONTRACTS ARISING IN INTERSTATE COMMERCE."  JOINT HEARINGS ON S. 1005
AND H.R. 646 BEFORE THE SUBCOMMITTEES OF THE COMMITTEES ON THE
JUDICIARY, 68TH CONG., 1ST SESS., 7 (1924).  MR. JULIUS HENRY COHEN,
DRAFTSMAN FOR THE AMERICAN BAR ASSOCIATION OF THE PROPOSED BILL, SAID
THE SPONSOR'S GOALS WERE:  "FIRST  ...  TO GET A STATE STATUTE, AND
THEN TO GET A FEDERAL LAW TO COVER INTERSTATE AND FOREIGN COMMERCE AND
ADMIRALTY, AND, THIRD, TO GET A TREATY WITH FOREIGN COUNTRIES."  JOINT
HEARINGS, SUPRA, AT 16.  SEE ALSO JOINT HEARINGS, SUPRA, AT 27-28
(STATEMENT OF MR. ALEXANDER ROSE).  MR. COHEN DID SUBMIT A BRIEF TO THE
SUBCOMMITTEE URGING A JURISDICTIONAL BASE BROADER THAN THE COMMERCE AND
ADMIRALTY POWERS, JOINT HEARINGS, SUPRA, AT 37-38, BUT THERE IS NO
INDICATION IN THE STATUTE OR IN THE LEGISLATIVE HISTORY THAT THIS
INVITATION TO GO BEYOND THOSE POWERS WAS ACCEPTED, AND HIS OWN
TESTIMONY TOOK A MUCH NARROWER TACK. 

MR. JUSTICE HARLAN:  IN JOINING THE COURT'S OPINION I DESIRE TO NOTE
THAT I WOULD ALSO AFFIRM THE JUDGMENT BELOW ON THE BASIS OF ROBERT
LAWRENCE CO. V. DEVONSHIRE FABRICS, INC., 271 F.2D 402 (C.A.2D CIR.
1959), CERT. GRANTED, 362 U.S. 909, DISMISSED UNDER RULE 60, 364 U.S.
801 (1960). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

THE COURT HERE HOLDS THAT THE UNITED STATES ARIBTRATION ACT, 9 U.S.C.
SECS 1-14, AS A MATTER OF FEDERAL SUBSTANTIVE LAW, COMPELS A PARTY TO A
CONTRACT CONTAINING A WRITTEN ARBITRATION PROVISION TO CARRY OUT HIS
"ARBITRATION AGREEMENT" EVEN THOUGH A COURT MIGHT, AFTER A FAIR TRIAL,
HOLD THE ENTIRE CONTRACT - INCLUDING THE ARBITRATION AGREEMENT - VOID
BECAUSE OF FRAUD IN THE INDUCEMENT.  THE COURT HOLDS, WHAT IS TO ME
FANTASTIC, THAT THE LEGAL ISSUE OF A CONTRACT'S VOIDNESS BECAUSE OF
FRAUD IS TO BE DECIDED BY PERSONS DESIGNATED TO ARBITRATE FACTUAL
CONTROVERSIES ARISING OUT OF A VALID CONTRACT BETWEEN THE PARTIES.  AND
THE ARBITRATORS WHO THE COURT HOLDS ARE TO ADJUDICATE THE LEGAL
VALIDITY OF THE CONTRACT NEED NOT EVEN BE LAWYERS, AND IN ALL
PROBABILITY WILL BE NONLAWYERS, WHOLLY UNQUALIFIED TO DECIDE LEGAL
ISSUES, AND EVEN IF QUALIFIED TO APPLY THE LAW, NOT BOUND TO DO SO.  I
AM BY NO MEANS SURE THAT THUS FORCING A PERSON TO FORGO HIS OPPORTUNITY
TO TRY HIS LEGAL ISSUES IN THE COURTS WHERE, UNLIKE THE SITUATION IN
ARBITRATION, HE MAY HAVE A JURY TRIAL AND RIGHT TO APPEAL, IS NOT A
DENIAL OF DUE PROCESS OF LAW.  I AM SATISFIED, HOWEVER, THAT CONGRESS
DID NOT IMPOSE ANY SUCH PROCEDURES IN THE ARBITRATION ACT.  AND I AM
FULLY SATISFIED THAT A REASONABLE AND FAIR READING OF THE ACT'S
LANGUAGE AND HISTORY SHOWS THAT BOTH CONGRESS AND THE FRAMERS OF THE
ACT WERE AT GREAT PAINS TO EMPHASIZE THAT NONLAWYERS DESIGNATED TO
ADJUST AND ARBITRATE FACTUAL CONTROVERSIES ARISING OUT OF VALID
CONTRACTS WOULD NOT TRESPASS UPON THE COURTS' PREROGATIVE TO DECIDE THE
LEGAL QUESTION OF WHETHER ANY LEGAL CONTRACT EXISTS UPON WHICH TO BASE
AN ARBITRATION. 

                      I. 

THE AGREEMENT INVOLVED HERE IS A CONSULTING AGREEMENT IN WHICH FLOOD
& CONKLIN AGREED TO PERFORM CERTAIN SERVICES FOR AND NOT TO COMPETE
WITH PRIMA PAINT.  THE AGREEMENT CONTAINED AN ARBITRATION CLAUSE
PROVIDING THAT "ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT  ... SHALL BE SETTLED BY ARBITRATION IN THE CITY OF NEW
YORK."  F & C, CONTENDING THAT PRIMA HAD FAILED TO MAKE A PAYMENT UNDER
THE CONTRACT, SENT PRIMA A "NOTICE OF INTENTION TO ARBITRATE" PURSUANT
TO THE NEW YORK ARBITRATION ACT.  (FN1)  INVOKING DIVERSITY
JURISDICTION, PRIMA BROUGHT THIS ACTION IN FEDERAL DISTRICT COURT TO
RESCIND THE ENTIRE CONSULTING AGREEMENT ON THE GROUND OF FRAUD.  THE
FRAUD ALLEGEDLY CONSISTED OF F & C'S MISREPRESENTATION AT THE TIME THE
CONTRACT WAS MADE, THAT IT WAS SOLVENT AND ABLE TO PERFORM THE
AGREEMENT, WHILE IN FACT IT WAS COMPLETELY INSOLVENT.  PRIMA ALLEGED
THAT IT WOULD NOT HAVE MADE ANY CONTRACT AT ALL WITH F & C BUT FOR THIS
MISREPRESENTATION.  PRIMA SIMPLY CONTENDED THAT THERE WAS NEVER A
MEETING OF MINDS BETWEEN THE PARTIES.  F & C MOVED TO STAY PRIMA'S
LAWSUIT FOR RESCISSION PENDING ARBITRATION OF THE FRAUD ISSUE RAISED BY
PRIMA.  THE LOWER COURTS, RELYING ON THE SECOND CIRCUIT'S DECISION IN
ROBERT LAWRENCE CO. V. DEVONSHIRE FABRICS, INC., 271 F.2D 402, CERT.
GRANTED, 362 U.S. 909, DISMISSED, 364 U.S. 801, HELD THAT, AS A MATTER
OF "NATIONAL SUBSTANTIVE LAW," THE ARBITRATION CLAUSE IN THE CONTRACT
IS "SEPARABLE" FROM THE REST OF THE CONTRACT AND THAT ALLEGATIONS THAT
GO TO THE VALIDITY OF THE CONTRACT IN GENERAL, AS OPPOSED TO THE
ARBITRATION CLAUSE IN PARTICULAR, ARE TO BE DECIDED BY THE ARBITRATOR,
NOT THE COURT. 

THE COURT TODAY AFFIRMS THIS HOLDING FOR THREE REASONS, NONE OF WHICH
IS SUPPORTED BY THE LANGUAGE OR HISTORY OF THE ARBITRATION ACT.  FIRST,
THE COURT HOLDS THAT BECAUSE THE CONSULTING AGREEMENT WAS INTENDED TO
SUPPLEMENT A SEPARATE CONTRACT FOR THE INTERSTATE TRANSFER OF ASSETS,
IT IS ITSELF A "CONTRACT EVIDENCING A TRANSACTION INVOLVING COMMERCE,"
THE LANGUAGE USED BY CONGRESS TO DESCRIBE CONTRACTS THE ACT WAS
DESIGNED TO COVER.  BUT IN LIGHT OF THE LEGISLATIVE HISTORY WHICH
INDICATES THAT THE ACT WAS TO HAVE A LIMITED APPLICATION TO CONTRACTS
BETWEEN MERCHANTS FOR THE INTERSTATE SHIPMENT OF GOODS, (FN2) AND IN
LIGHT OF THE EXPRESS FAILURE OF CONGRESS TO USE LANGUAGE MAKING THE ACT
APPLICABLE TO ALL CONTRACTS WHICH "AFFECT COMMERCE," THE STATUTORY
LANGUAGE CONGRESS NORMALLY USES WHEN IT WISHES TO EXERCISE ITS FULL
POWERS OVER COMMERCE, (FN3) I AM NOT AT ALL CERTAIN THAT THE ACT WAS
INTENDED TO APPLY TO THIS CONSULTING AGREEMENT.  SECOND, THE COURT
HOLDS THAT THE LANGUAGE OF SEC 4 OF THE ACT PROVIDES AN "EXPLICIT
ANSWER" TO THE QUESTION OF WHETHER THE ARBITRATION CLAUSE IS
"SEPARABLE" FROM THE REST OF THE CONTRACT IN WHICH IT IS CONTAINED. 
IS "SATISFIED THAT THE MAKING OF THE AGREEMENT FOR ARBITRATION  ...  IS
NOT IN ISSUE."  THAT LANGUAGE, CONSIDERED ALONE, FAR FROM PROVIDING AN
"EXPLICIT ANSWER," MERELY POSES THE FURTHER QUESTION OF WHAT KIND OF
ALLEGATIONS PUT THE MAKING OF THE ARBITRATION AGREEMENT IN ISSUE. 
SINCE BOTH THE LOWER COURTS ASSUMED THAT BUT FOR THE FEDERAL ACT, NEW
YORK LAW MIGHT APPLY AND THAT UNDER NEW YORK LAW A GENERAL ALLEGATION
OF FRAUD IN THE INDUCEMENT PUTS INTO ISSUE THE MAKING OF THE AGREEMENT
TO ARBITRATE (CONSIDERED INSEPARABLE UNDER NEW YORK LAW FROM THE REST
OF THE CONTRACT), (FN4) THE COURT NECESSARILY HOLDS THAT FEDERAL LAW
DETERMINES WHETHER CERTAIN ALLEGATIONS PUT THE MAKING OF THE
ARBITRATION AGREEMENT IN ISSUE.  AND THE COURT APPROVES THE SECOND
CIRCUIT'S FASHIONING OF A FEDERAL SEPARABILITY RULE WHICH OVERRIDES
STATE LAW TO THE CONTRARY.  THE COURT THUS HOLDS THAT THE ARBITRATION
ACT, DESIGNED TO PROVIDE MERELY A PROCEDURAL REMEDY WHICH WOULD NOT
INTERFERE WITH STATE SUBSTANTIVE LAW, AUTHORIZES FEDERAL COURTS TO
FASHION A FEDERAL RULE TO MAKE ARBITRATION CLAUSES "SEPARABLE" AND
VALID.  AND THE COURT APPROVES A RULE WHICH IS NOT ONLY CONTRARY TO
STATE LAW, BUT CONTRARY TO THE INTENTION OF THE PARTIES AND TO ACCEPTED
PRINCIPLES OF CONTRACT LAW - A RULE WHICH INDEED ELEVATES ARBITRATION
PROVISIONS ABOVE ALL OTHER CONTRACTUAL PROVISIONS.  AS THE COURT
RECOGNIZES, THAT RESULT WAS CLEARLY NOT INTENDED BY CONGRESS.  FINALLY,
THE COURT SUMMARILY DISPOSES OF THE PROBLEM RAISED BY ERIE R. CO.  V.
TOMPKINS, 304 U.S. 64, RECOGNIZED AS A SERIOUS CONSTITUTIONAL PROBLEM
IN BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198, BY INSUFFICIENTLY
SUPPORTED ASSERTIONS THAT IT IS "CLEAR BEYOND DISPUTE" THAT CONGRESS
BASED THE ARBITRATION ACT ON ITS POWER TO REGULATE COMMERCE AND THAT
"IF CONGRESS RELIED AT ALL ON" ITS POWER TO CREATE FEDERAL LAW FOR
DIVERSITY CASES, SUCH RELIANCE "WAS ONLY SUPPLEMENTARY." 

                                    II. 

LET US LOOK BRIEFLY AT THE LANGUAGE OF THE ARBITRATION ACT ITSELF AS
CONGRESS PASSED IT.  SECTION 2, THE KEY PROVISION OF THE ACT, PROVIDES
THAT "A WRITTEN PROVISION IN  ...  A CONTRACT  ... INVOLVING COMMERCE
TO SETTLE BY ARBITRATION A CONTROVERSY THEREAFTER ARISING OUT OF SUCH
CONTRACT ...  SHALL BE VALID, IRREVOCABLE, AND ENFORCEABLE, SAVE UPON
SUCH GROUNDS AS EXIST AT LAW OR IN EQUITY FOR THE REVOCATION OF ANY
CONTRACT."  SECTION 3 PROVIDES THAT "IF ANY SUIT  ...  BE BROUGHT ...
UPON ANY ISSUE REFERABLE TO ARBITRATION UNDER AN AGREEMENT IN WRITING
FOR SUCH ARBITRATION, THE COURT  ...  UPON BEING SATISFIED THAT THE
ISSUE INVOLVED IN SUCH SUIT  ...  IS REFERABLE TO ARBITRATION UNDER
SUCH AN AGREEMENT, SHALL  ...  STAY THE TRIAL OF THE ACTION UNTIL SUCH
ARBITRATION HAS BEEN HAD  ...  ."  (FN5)  THE LANGUAGE OF THESE
SOMEONE ANXIOUS TO FIND DOUBTS.  THEY SIMPLY MEAN THIS:  AN ARBITRATION
AGREEMENT IS TO BE ENFORCED BY A FEDERAL COURT UNLESS THE COURT, NOT
THE ARBITRATOR, FINDS GROUNDS "AT LAW OR IN EQUITY FOR THE REVOCATION
OF ANY CONTRACT."  FRAUD, OF COURSE, IS ONE OF THE MOST COMMON GROUNDS
FOR REVOKING A CONTRACT.  IF THE CONTRACT WAS PROCURED BY FRAUD, THEN,
UNLESS THE DEFRAUDED PARTY ELECTS TO AFFIRM IT, THERE IS ABSOLUTELY NO
CONTRACT, NOTHING TO BE ARBITRATED.  SECTIONS 2 AND 3 OF THE ACT ASSUME
THE EXISTENCE OF A VALID CONTRACT.  THEY MERELY PROVIDE FOR ENFORCEMENT
WHERE SUCH A VALID CONTRACT EXISTS.  THESE PROVISIONS WERE PLAINLY
DESIGNED TO PROTECT A PERSON AGAINST WHOM ARBITRATION IS SOUGHT TO BE
ENFORCED FROM HAVING TO SUBMIT HIS LEGAL ISSUES AS TO VALIDITY OF THE
CONTRACT TO THE ARBITRATOR.  THE LEGISLATIVE HISTORY OF THE ACT MAKES
THIS CLEAR.   SENATOR WALSH OF MONTANA, IN HEARINGS ON THE BILL IN
1923, OBSERVED, "THE COURT HAS GOT TO HEAR AND DETERMINE WHETHER THERE
IS AN AGREEMENT OF ARBITRATION, UNDOUBTEDLY, AND IT IS OPEN TO ALL
DEFENSES, EQUITABLE AND LEGAL, THAT WOULD HAVE EXISTED AT LAW  ...  ." 
(FN6)  MR. PIATT, WHO REPRESENTED THE AMERICAN BAR ASSOCIATION WHICH
DRAFTED AND SUPPORTED THE ACT, WAS EVEN MORE EXPLICIT:  "I THINK THIS
WILL OPERATE SOMETHING LIKE AN INJUNCTION PROCESS, EXCEPT WHERE HE
WOULD ATTACK IT ON THE GROUND OF FRAUD."  (FN7)  AND THEN SENATOR WALSH
REPLIED:  "IF HE SHOULD ATTACK IT ON THE GROUND OF FRAUD, TO RESCIND
THE WHOLE THING  ...  I PRESUME THAT IT MERELY IS A QUESTION OF WHETHER
HE DID MAKE THE ARBITRATION AGREEMENT OR NOT,  ...  AND THEN HE WOULD
POSSIBLY SET UP THAT HE WAS MISLED ABOUT THE CONTRACT AND ENTERED INTO
IT BY MISTAKE ...  ."  (FN8)  IT IS EVIDENT THAT SENATOR WALSH WAS
REFERRING TO SITUATIONS IN WHICH THE VALIDITY OF THE ENTIRE CONTRACT IS
CALLED INTO QUESTION.  AND MR. BERNHEIMER, WHO REPRESENTED ONE OF THE
CHAMBERS OF COMMERCE IN FAVOR OF THE BILL, ASSURED THE SENATE
SUBCOMMITTEE THAT "THE CONSTITUTIONAL RIGHT TO JURY TRIAL IS ADEQUATELY
SAFEGUARDED" BY THE ACT.  (FN9)  MR. COHEN, THE AMERICAN BAR
ASSOCIATION'S DRAFTSMAN OF THE BILL, ASSURED THE MEMBERS OF CONGRESS
THAT THE ACT WOULD NOT IMPAIR THE RIGHT TO A JURY TRIAL, BECAUSE IT
DEPRIVES A PERSON OF THAT RIGHT ONLY WHEN HE HAS VOLUNTARILY AND
VALIDLY WAIVED IT BY AGREEING TO SUBMIT CERTAIN DISPUTES TO
ARBITRATION.  (FN10)  THE COURT AND A JURY ARE TO DETERMINE BOTH THE
LEGAL EXISTENCE AND SCOPE OF SUCH AN AGREEMENT.  THE MEMBERS OF
CONGRESS REVEALED AN ACUTE AWARENESS OF THIS PROBLEM.  ON SEVERAL
OCCASIONS THEY EXPRESSED OPPOSITION TO A LAW WHICH WOULD ENFORCE EVEN A
VALID ARBITRATION PROVISION CONTAINED IN A CONTRACT BETWEEN PARTIES OF
UNEQUAL BARGAINING POWER.  SENATOR WALSH CITED INSURANCE, EMPLOYMENT,
CONSTRUCTION, AND SHIPPING CONTRACTS AS ROUTINELY CONTAINING
ARBITRATION CLAUSES AND BEING OFFERED ON A TAKE-IT-OR-LEAVE-IT BASIS TO
CAPTIVE CUSTOMERS OR EMPLOYEES.  (FN11)  HE NOTED THAT SUCH CONTRACTS
"ARE REALLY NOT VOLUNTARY THINGS AT ALL" BECAUSE "THERE IS NOTHING FOR
THE MAN TO DO EXCEPT TO SIGN IT; AND THEN HE SURRENDERS HIS RIGHT TO
HAVE HIS CASE TRIED BY THE COURT  ... ." (FN12)  HE WAS EMPHATICALLY
ASSURED BY THE SUPPORTERS OF THE BILL THAT IT WAS NOT THEIR INTENTION
TO COVER SUCH CASES.  THE SIGNIFICANT THING IS THAT SENATOR WALSH WAS
NOT THINKING IN TERMS OF THE ARBITRATION PROVISIONS BEING "SEPARABLE"
PARTS OF SUCH CONTRACTS, PARTS WHICH SHOULD BE ENFORCED WITHOUT REGARD
TO WHY THE ENTIRE CONTRACTS IN WHICH THEY WERE CONTAINED WERE AGREED
TO. THE ISSUE FOR HIM WAS NOT WHETHER AN ARBITRATION PROVISION IN A
CONTRACT WAS MADE, BUT WHY, IN THE CONTEXT OF THE ENTIRE CONTRACT AND
THE CIRCUMSTANCES OF THE PARTIES, THE ENTIRE CONTRACT WAS MADE.  THAT
IS PRECISELY THE ISSUE THAT A GENERAL ALLEGATION OF FRAUD IN THE
INDUCEMENT RAISES:  PRIMA CONTENDED THAT IT WOULD NOT HAVE EXECUTED ANY
CONTRACT, INCLUDING THE ARBITRATION CLAUSE, IF IT WERE NOT FOR THE
FRAUDULENT REPRESENTATIONS OF F & C. PRIMA'S AGREEMENT TO AN
ARBITRATION CLAUSE IN A CONTRACT OBTAINED BY FRAUD WAS NO MORE
"VOLUNTARY" THAN AN INSURED'S OR EMPLOYEE'S AGREEMENT TO AN ARBITRATION
CLAUSE IN A CONTRACT OBTAINED BY SUPERIOR BARGAINING POWER. 

FINALLY, IT IS CLEAR TO ME FROM THE BILL'S SPONSORS' UNDERSTANDING OF
THE FUNCTION OF ARBITRATION THAT THEY NEVER INTENDED THAT THE ISSUE OF
FRAUD IN THE INDUCEMENT BE RESOLVED BY ARBITRATION.  THEY RECOGNIZED
TWO SPECIAL VALUES OF ARBITRATION:  (1) THE EXPERTISE OF AN ARBITRATOR
TO DECIDE FACTUAL QUESTIONS IN REGARD TO THE DAY-TO-DAY PERFORMANCE OF
CONTRACTUAL OBLIGATIONS, (FN13) AND (2) THE SPEED WITH WHICH
ARBITRATION, AS CONTRASTED TO LITIGATION, COULD RESOLVE DISPUTES OVER
PERFORMANCE OF CONTRACTS AND THUS MITIGATE THE DAMANGES AND ALLOW THE
PARTIES TO CONTINUE PERFORMANCE UNDER THE CONTRACTS.(FN14)  ARBITRATION
SERVES NEITHER OF THESE FUNCTIONS WHERE A CONTRACT IS SOUGHT TO BE
RESCINDED ON THE GROUND OF FRAUD.  ON THE ONE HAND, COURTS HAVE FAR
MORE EXPERTISE IN RESOLVING LEGAL ISSUES WHICH GO TO THE VALIDITY OF A
CONTRACT THAN DO ARBITRATORS.  (FN15)  ON THE OTHER HAND, WHERE A PARTY
SEEKS TO RESCIND A CONTRACT AND HIS ALLEGATION OF FRAUD IN THE
INDUCEMENT IS TRUE, AN ARBITRATOR'S SPEEDY REMEDY OF THIS WRONG SHOULD
NEVER RESULT IN RESUMPTION OF PERFORMANCE UNDER THE CONTRACT.  AND IF
THE CONTRACT WERE NOT PROCURED BY FRAUD, THE COURT, UNDER THE SUMMARY
TRIAL PROCEDURES PROVIDED BY THE ACT, MAY DETERMINE WITH LITTLE DELAY
THAT ARBITRATION MUST PROCEED.  THE ONLY ADVANTAGE OF SUBMITTING THE
ISSUE OF FRAUD TO ARBITRATION IS FOR THE ARBITRATORS.  THEIR
COMPENSATION CORRESPONDS TO THE VOLUME OF ARBITRATION THEY PERFORM.  IF
THEY DETERMINE THAT A CONTRACT IS VOID BECAUSE OF FRAUD, THERE IS
NOTHING FURTHER FOR THEM TO ARBITRATE.  I THINK IT RAISES SERIOUS
QUESTIONS OF DUE PROCESS TO SUBMIT TO AN ARBITRATOR AN ISSUE WHICH WILL
DETERMINE HIS COMPENSATION.  TUMEY V. OHIO, 273 U.S. 510. 

                                 III. 

WITH SUCH STATUTORY LANGUAGE AND LEGISLATIVE HISTORY, ONE CAN WELL
WONDER WHAT IS THE BASIS FOR THE COURT'S SURPRISING DEPARTURE FROM THE
ACT'S CLEAR STATEMENT WHICH EXPRESSLY EXCEPTS FROM ARBITRATION "SUCH
GROUNDS AS EXIST AT LAW OR IN EQUITY FOR THE REVOCATION OF ANY
CONTRACT."  CREDIT FOR THE CREATION OF A RATIONALIZATION TO JUSTIFY
THIS STATUTORY MUTILATION APPARENTLY MUST GO TO THE SECOND CIRCUIT'S
OPINION IN ROBERT LAWRENCE CO. V. DEVONSHIRE FABRICS, INC., SUPRA.  IN
THAT DECISION JUDGE MEDINA UNDERTOOK TO RESOLVE THE SERIOUS
CONSTITUTIONAL PROBLEM WHICH THIS COURT HAD AVOIDED IN BERNHARDT BY
HOLDING THE ACT INAPPLICABLE TO A DIVERSITY CASE INVOLVING AN
INTRASTATE CONTRACT.  THAT PROBLEM WAS WHETHER THE ARBITRATION ACT,
PASSED 13 YEARS PRIOR TO ERIE R. CO. V. TOMPKINS, 304 U.S. 64, COULD BE
CONSTITUTIONALLY APPLIED IN A DIVERSITY CASE EVEN THOUGH ITS
APPLICATION WOULD REQUIRE THE FEDERAL COURT TO ENFORCE AN AGREEMENT TO
ARBITRATE WHICH THE STATE COURT ACROSS THE STREET WOULD NOT ENFORCE. 
BERNHARDT'S HOLDING THAT ARBITRATION IS "OUTCOME DETERMINATIVE," 350
U.S., AT 203, AND ITS RECOGNITION THAT THERE WOULD BE UNCONSTITUTIONAL
DISCRIMINATION IF AN ARBITRATION AGREEMENT WERE ENFORCEABLE IN FEDERAL
COURT BUT NOT IN THE STATE COURT, ID., AT 204, POSED A CHOICE OF TWO
ALTERNATIVES FOR JUDGE MEDINA.  IF HE HELD THAT THE ARBITRATION ACT
RESTED SOLELY ON CONGRESS' POWER, WIDELY RECOGNIZED IN 1925 BUT NEGATED
IN ERIE, TO PRESCRIBE GENERAL FEDERAL LAW APPLICABLE IN DIVERSITY
CASES, HE WOULD BE COMPELLED TO HOLD THE ACT UNCONSTITUTIONAL AS
APPLIED TO DIVERSITY CASES UNDER ERIE AND BERNHARDT.  (FN16)  IF HE
HELD THAT THE ACT RESTED ON CONGRESS' POWER TO ENACT SUBSTANTIVE LAW
GOVERNING INTERSTATE COMMERCE, THEN THE ERIE-BERNHARDT PROBLEM WOULD BE
AVOIDED AND THE APPLICATION OF THE ACT TO DIVERSITY CASES INVOLVING
COMMERCE COULD BE SAVED. 

THE DIFFICULTY IN CHOOSING BETWEEN THESE TWO ALTERNATIVES WAS THAT
NEITHER, QUITE CONTRARY TO THE COURT'S POSITION, WAS "CLEAR BEYOND
DISPUTE" UPON REFERENCE TO THE ACT'S LEGISLATIVE HISTORY.  (FN17)  AS
TO THE FIRST, IT IS CLEAR THAT CONGRESS INTENDED THE ACT TO BE
APPLICABLE IN DIVERSITY CASES INVOLVING INTERSTATE COMMERCE AND
MARITIME CONTRACTS, (FN18) AND TO HOLD THE ACT INAPPLICABLE IN
DIVERSITY CASES WOULD BE SEVERLY TO LIMIT ITS IMPACT.  AS TO THE SECOND
ALTERNATIVE, IT IS CLEAR THAT CONGRESS IN PASSING THE ACT RELIED
PRIMARILY ON ITS POWER TO CREATE GENERAL FEDERAL RULES TO GOVERN
FEDERAL COURTS.  OVER AND OVER AGAIN THE DRAFTERS OF THE ACT ASSURED
CONGRESS:  "THE STATUTE ESTABLISHES A PROCEDURE IN THE FEDERAL COURTS
...  .  IT RESTS UPON THE CONSTITUTIONAL PROVISION BY WHICH CONGRESS IS
AUTHORIZED TO ESTABLISH AND CONTROL INFERIOR FEDERAL COURTS.  SO FAR AS
CONGRESSIONAL ACTS RELATE TO THE PROCEDURE IN THE FEDERAL COURTS, THEY
ARE CLEARLY WITHIN THE CONGRESSIONAL POWER."  (FN19)  AND AGAIN:  "THE
PRIMARY PURPOSE OF THE STATUTE IS TO MAKE ENFORCIBLE IN THE FEDERAL
COURTS SUCH AGREEMENTS FOR ARBITRATION, AND FOR THIS PURPOSE CONGRESS
RESTS SOLELY UPON ITS POWER TO PRESCRIBE THE JURISDICTION AND DUTIES OF
THE FEDERAL COURTS."  (FN20)  ONE CANNOT READ THE LEGISLATIVE HISTORY
WITHOUT CONCLUDING THAT THIS POWER, AND NOT CONGRESS' POWER TO
LEGISLATE IN THE AREA OF COMMERCE, WAS THE "PRINCIPAL BASIS" OF THE
ACT.  (FN21)  ALSO OPPOSED TO THE VIEW THAT CONGRESS INTENDED TO CREATE
SUBSTANTIVE LAW TO GOVERN COMMERCE AND MARITIME TRANSACTIONS ARE THE
FREQUENT STATEMENTS IN THE LEGISLATIVE HISTORY THAT THE ACT WAS NOT
INTENDED TO BE "THE SOURCE OF  ...  SUBSTANTIVE LAW."  (FN22)  AS
CONGRESSMAN GRAHAM EXPLAINED THE ACT TO THE HOUSE: 

"IT DOES NOT INVOLVE ANY NEW PRINCIPLE OF LAW EXCEPT TO PROVIDE A
SIMPLE METHOD  ...  IN ORDER TO GIVE ENFORCEMENT  ...  .  IT CREATES NO
NEW LEGISLATION, GRANTS NO NEW RIGHTS, EXCEPT A REMEDY TO ENFORCE AN
AGREEMENT IN COMMERCIAL CONTRACTS AND IN ADMIRALTY CONTRACTS."  65
CONG. REC. 1931 (1924). 

FINALLY, THERE ARE CLEAR INDICATIONS IN THE LEGISLATIVE HISTORY THAT
THE ACT WAS NOT INTENDED TO MAKE ARBITRATION AGREEMENTS ENFORCEABLE IN
STATE COURTS (FN23) OR TO PROVIDE AN INDEPENDENT FEDERAL-QUESTION BASIS
FOR JURISDICTION IN FEDERAL COURTS APART FROM DIVERSITY JURISDICTION. 
(FN24)  THE ABSENCE OF BOTH OF THESE EFFECTS - WHICH NORMALLY FOLLOW
FROM LEGISLATION OF FEDERAL SUBSTANTIVE LAW - SEEMS TO MILITATE AGAINST
THE VIEW THAT CONGRESS WAS CREATING A BODY OF FEDERAL SUBSTANTIVE LAW. 

SUFFICE IT TO SAY THAT JUDGE MEDINA CHOSE THE ALTERNATIVE OF
CONSTRUING THE ACT TO CREATE FEDERAL SUBSTANTIVE LAW IN ORDER TO AVOID
ITS EMASCULATION UNDER ERIE AND BERNHARDT.  BUT JUDGE MEDINA WAS NOT
CONTENT TO STOP THERE WITH A HOLDING THAT THE ACT MAKES ARBITRATION
AGREEMENTS IN A CONTRACT INVOLVING COMMERCE ENFORCEABLE IN FEDERAL
COURT EVEN THOUGH THE BASIS OF JURISDICTION IS DIVERSITY AND STATE LAW
DOES NOT ENFORCE SUCH AGREEMENTS.  THE PROBLEM IN ROBERT LAWRENCE, AS
HERE, WAS NOT WHETHER AN ARBITRATION AGREEMENT IS ENFORCEABLE, FOR THE
NEW YORK ARBITRATION ACT, UPON WHICH THE FEDERAL ACT WAS BASED,
ENFORCES AN ARBITRATION CLAUSE IN THE SAME TERMS AS THE FEDERAL ACT. 
THE PROBLEM IN ROBERT LAWRENCE, AND HERE, WAS RATHER WHETHER THE
ARBITRATION CLAUSE IN A CONTRACT INDUCED BY FRAUD IS "SEPARABLE." 
UNDER NEW YORK LAW, IT WAS NOT:  GENERAL ALLEGATIONS OF FRAUD IN THE
INDUCEMENT WOULD, AS A MATTER OF STATE LAW, PUT IN ISSUE THE MAKING OF
THE ARBITRATION CLAUSE.  SO TO AVOID THIS APPLICATION OF STATE LAW,
JUDGE MEDINA WENT FURTHER THAN HOLDING THAT THE FEDERAL ACT MAKES
AGREEMENTS TO ARBITRATE ENFORCEABLE:  HE HELD THAT THE ACT CREATES A
"BODY OF LAW" THAT "ENCOMPASSES QUESTIONS OF INTERPRETATION AND
CONSTRUCTION AS WELL AS QUESTIONS OF VALIDITY, REVOCABILITY AND
ENFORCEABILITY OF ARBITRATION AGREEMENTS AFFECTING INTERSTATE COMMERCE
OR MARITIME AFFAIRS."  271 F.2D, AT 409.    THUS, 35 YEARS AFTER THE
PASSAGE OF THE ARBITRATION ACT, THE SECOND CIRCUIT COMPLETELY REWROTE
IT.  UNDER ITS NEW FORMULATION, SEC 2 NOW MAKES ARBITRATION AGREEMENTS
ENFORCEABLE "SAVE UPON SUCH GROUNDS AS EXIST AT FEDERAL LAW FOR THE
REVOCATION OF ANY CONTRACT."  AND UNDER SEC 4, BEFORE ENFORCING AN
ARBITRATION AGREEMENT, THE DISTRICT COURT MUST BE SATISFIED THAT "THE
MAKING OF THE AGREEMENT FOR ARBITRATION, AS A MATTER OF FEDERAL LAW, IS
NOT IN ISSUE."  AND THEN WHEN JUDGE MEDINA TURNED TO THE TASK OF "THE
FORMULATION OF THE PRINCIPLES OF FEDERAL SUBSTANTIVE LAW NECESSARY FOR
THIS PURPOSE," 271 F.2D, AT 409, HE FORMULATED THE SEPARABILITY RULE
WHICH THE COURT TODAY ADOPTS - NOT BECAUSE SEC 4 PROVIDED THIS RULE AS
AN "EXPLICIT ANSWER," NOT BECAUSE HE LOOKED TO THE INTENTION OF THE
PARTIES, BUT BECAUSE OF HIS NOTION THAT THE SEPARABILITY RULE WOULD
FURTHER A "LIBERAL POLICY OF PROMOTING ARBITRATION."  271 F.2D, AT
410.  (FN25) 

TODAY, WITHOUT EXPRESSLY SAYING SO, THE COURT DOES PRECISELY WHAT
JUDGE MEDINA DID IN ROBERT LAWRENCE.  IT IS NOT CONTENT TO HOLD THAT
THE ACT DOES ALL IT WAS INTENDED TO DO:  MAKE ARBITRATION AGREEMENTS
ENFORCEABLE IN FEDERAL COURTS IF THEY ARE VALID AND LEGALLY EXISTENT
UNDER STATE LAW.  THE COURT HOLDS THAT THE ACT GIVES FEDERAL COURTS THE
RIGHT TO FASHION FEDERAL LAW, INCONSISTENT WITH STATE LAW, TO DETERMINE
WHETHER AN ARBITRATION AGREEMENT WAS MADE AND WHAT IT MEANS.  EVEN IF
CONGRESS INTENDED TO CREATE SUBSTANTIVE RIGHTS BY PASSAGE OF THE ACT, I
AM WHOLLY CONVINCED THAT IT DID NOT INTEND TO CREATE SUCH A SWEEPING
BODY OF FEDERAL SUBSTANTIVE LAW COMPLETELY TO TAKE AWAY FROM THE STATES
THEIR POWER TO INTERPRET CONTRACTS MADE BY THEIR OWN CITIZENS IN THEIR
OWN TERRITORY. 

FIRST.  THE LEGISLATIVE HISTORY IS CLEAR THAT CONGRESS INTENDED NO
SUCH THING.  CONGRESS ASSUMED THAT ARBITRATION AGREEMENTS WERE
RECOGNIZED AS VALID BY STATE AND FEDERAL LAW.  (FN26)  COURTS WOULD
GIVE DAMAGES FOR THEIR BREACH, BUT WOULD SIMPLY REFUSE TO SPECIFICALLY
ENFORCE THEM.  CONGRESS THUS HAD ONE LIMITED PURPOSE IN MIND:  TO
PROVIDE A PARTY TO SUCH AN AGREEMENT "A REMEDY FORMERLY DENIED HIM." 
(FN27)  "ARBITRATION UNDER THE FEDERAL  ...  STATUTE IS SIMPLY A NEW
PROCEDURAL REMEDY."  (FN28)  THE ACT "CREATES NO NEW LEGISLATION,
GRANTS NO NEW RIGHTS, EXCEPT A REMEDY TO ENFORCE  ... ."  (FN29)  THE
DRAFTERS OF THE ACT WERE VERY EXPLICIT: 

"A FEDERAL STATUTE PROVIDING FOR THE ENFORCEMENT OF ARBITRATION
AGREEMENTS DOES RELATE SOLELY TO PROCEDURE OF THE FEDERAL COURTS.  IT
IS NO INFRINGEMENT UPON THE RIGHT OF EACH STATE TO DECIDE FOR ITSELF
WHAT CONTRACTS SHALL OR SHALL NOT EXIST UNDER ITS LAWS.  TO BE SURE
WHETHER OR NOT A CONTRACT EXISTS IS A QUESTION OF THE SUBSTANTIVE LAW
OF THE JURISDICTION WHEREIN THE CONTRACT WAS MADE."  COMMITTEE ON
COMMERCE, TRADE & COMMERCIAL LAW, THE UNITED STATES ARBITRATION LAW AND
ITS APPLICATION, 11 A.B.A.J. 153, 154. 

"NEITHER IS IT TRUE THAT SUCH A STATUTE, DECLARING ARBITRATION
AGREEMENTS TO BE VALID, IS THE SOURCE OF THEIR EXISTENCE AS A MATTER OF
SUBSTANTIVE LAW  ...  . 

"SO FAR AS THE PRESENT LAW DECLARES SIMPLY THE POLICY OF RECOGNIZING
AND ENFORCING ARBITRATION AGREEMENTS IN THE FEDERAL COURTS IT DOES NOT
ENCROACH UPON THE PROVINCE OF THE INDIVIDUAL STATES."  COHEN & DAYTON,
THE NEW FEDERAL ARBITRATION LAW, 12 VA. L. REV.  265, 276-277. 

ALL THIS INDICATES THAT THE SEC 4 INQUIRY OF WHETHER THE MAKING OF
THE ARBITRATION AGREEMENT IS IN ISSUE IS TO BE DETERMINED BY REFERENCE
TO STATE LAW, NOT FEDERAL LAW FORMULATED BY JUDGES FOR THE PURPOSE OF
PROMOTING ARBITRATION. 

SECOND.  THE AVOWED PURPOSE OF THE ACT WAS TO PLACE ARBITRATION
AGREEMENTS "UPON THE SAME FOOTING AS OTHER CONTRACTS."  (FN30)  THE
SEPARABILITY RULE WHICH THE COURT APPLIES TO AN ARBITRATION CLAUSE DOES
NOT RESULT IN EQUALITY BETWEEN IT AND OTHER CLAUSES IN THE CONTRACT.  I
HAD ALWAYS THOUGHT THAT A PERSON WHO ATTACKS A CONTRACT ON THE GROUND
OF FRAUD AND SEEKS TO RESCIND IT HAS TO SEEK RESCISSION OF THE WHOLE,
NOT TIDBITS, AND IS NOT GIVEN THE OPTION OF DENYING THE EXISTENCE OF
SOME CLAUSES AND AFFIRMING THE EXISTENCE OF OTHERS.  HERE F & C AGREED
BOTH TO PERFORM CONSULTING SERVICES FOR PRIMA AND NOT TO COMPETE WITH
PRIMA.  WOULD ANY COURT HOLD THAT THOSE TWO AGREEMENTS WERE SEPARABLE,
EVEN THOUGH PRIMA IN AGREEING TO PAY F & C NOT TO COMPETE DID NOT
DIRECTLY RELY ON F & C'S REPRESENTATIONS OF BEING SOLVENT?  THE SIMPLE
FACT IS THAT PRIMA WOULD NOT HAVE AGREED TO THE COVENANT NOT TO COMPETE
OR TO THE ARBITRATION CLAUSE BUT FOR F & C'S FRAUDULENT PROMISE THAT IT
WOULD BE FINANCIALLY ABLE TO PERFORM CONSULTING SERVICES.  AS THIS
COURT HELD IN UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S. 289,
298: 

"WHETHER A NUMBER OF PROMISES CONSTITUTE ONE CONTRACT (AND ARE NON
SEPARABLE) OR MORE THAN ONE IS TO BE DETERMINED BY INQUIRING 'WHETHER
THE PARTIES ASSENTED TO ALL THE PROMISES AS A SINGLE WHOLE, SO THAT
THERE WOULD HAVE BEEN NO BARGAIN WHATEVER, IF ANY PROMISE OR SET OF
PROMISES WERE STRUCK OUT.'" 

UNDER THIS TEST, ALL OF PRIMA'S PROMISES WERE PART OF ONE,
INSEPARABLE CONTRACT. 

THIRD.  IT IS CLEAR THAT HAD THIS IDENTICAL CONTRACT DISPUTE BEEN
LITIGATED IN NEW YORK COURTS UNDER ITS ARBITRATION ACT, PRIMA WOULD NOT
BE REQUIRED TO PRESENT ITS CLAIMS OF FRAUD TO THE ARBITRATOR IF THE
STATE RULE OF NON-SEPARABILITY APPLIES.  THE COURT HERE DOES NOT HOLD
TODAY, AS DID JUDGE MEDINA, (FN31) THAT THE BODY OF FEDERAL SUBSTANTIVE
LAW CREATED BY FEDERAL JUDGES UNDER THE ARBITRATION ACT IS REQUIRED TO
BE APPLIED BY STATE COURTS.  A HOLDING TO THAT EFFECT - WHICH THE COURT
SEEMS TO LEAVE UP IN THE AIR - WOULD FLOUT THE INTENTION OF THE FRAMERS
OF THE ACT.  (FN32) YET UNDER THIS COURT'S OPINION TODAY - THAT THE ACT
SUPPLIES NOT ONLY THE REMEDY OF ENFORCEMENT BUT A BODY OF FEDERAL
DOCTRINES TO DETERMINE THE VALIDITY OF AN ARBITRATION AGREEMENT -
FAILURE TO MAKE THE ACT APPLICABLE IN STATE COURTS WOULD GIVE TO RISE
TO "FORUM SHOPPING" AND AN UNCONSTITUTIONAL DISCRIMINATION THAT BOTH
ERIE AND BERNHARDT WERE DESIGNED TO ELIMINATE.  THESE PROBLEMS ARE
GREATLY REDUCED IF THE ACT IS LIMITED, AS IT SHOULD BE, TO ITS PROPER
SCOPE:  THE MERE ENFORCEMENT IN FEDERAL COURTS OF VALID ARBITRATION
AGREEMENTS. 

                            IV. 

THE COURT'S SUMMARY TREATMENT OF THESE ISSUES HAS MADE IT NECESSARY
FOR ME TO EXPRESS MY VIEWS AT LENGTH.  THE PLAIN PURPOSE OF THE ACT AS
WRITTEN BY CONGRESS WAS THIS AND NO MORE:  CONGRESS WANTED FEDERAL
COURTS TO ENFORCE CONTRACTS TO ARBITRATE AND PLAINLY SAID SO IN THE
ACT.  BUT CONGRESS ALSO PLAINLY SAID THAT WHETHER A CONTRACT CONTAINING
AN ARBITRATION CLAUSE CAN BE RESCINDED ON THE GROUND OF FRAUD IS TO BE
DECIDED BY THE COURTS AND NOT BY THE ARBITRATORS.  PRIMA HERE
CHALLENGED IN THE COURTS THE VALIDITY OF ITS ALLEGED CONTRACT WITH F &
C AS A WHOLE, NOT IN FRAGMENTS.  IF THERE HAS NEVER BEEN ANY VALID
CONTRACT, THEN THERE IS NOT NOW AND NEVER HAS BEEN ANYTHING TO
ARBITRATE.  IF PRIMA'S ALLEGATIONS ARE TRUE, THE SUM TOTAL OF WHAT THE
COURT DOES HERE IS TO FORCE PRIMA TO ARBITRATE A CONTRACT WHICH IS VOID
AND UNENFORCEABLE BEFORE ARBITRATORS WHO ARE GIVEN THE POWER TO MAKE
FINAL LEGAL DETERMINATIONS OF THEIR OWN JURISDICTION, NOT EVEN SUBJECT
TO EFFECTIVE REVIEW BY THE HIGHEST COURT IN THE LAND.  THAT IS NOT WHAT
CONGRESS SAID PRIMA MUST DO.  IT SEEMS TO BE WHAT THE COURT THINKS
WOULD PROMOTE THE POLICY OF ARBITRATION.  I AM COMPLETELY UNABLE TO
AGREE TO THIS NEW VERSION OF THE ARBITRATION ACT, A VERSION WHICH ITS
OWN CREATOR IN ROBERT LAWRENCE PRACTICALLY ADMITTED WAS JUDICIAL
LEGISLATION.  CONGRESS MIGHT POSSIBLY HAVE ENACTED SUCH A VERSION INTO
LAW HAD IT BEEN ABLE TO FORESEE SUBSEQUENT LEGAL EVENTS, BUT I DO NOT
THINK THIS COURT SHOULD DO SO. 

I WOULD REVERSE THIS CASE. 

FN1  N.Y. CIV. PRAC.  SEC 7503 (1963) PROVIDES THAT ONCE A PARTY IS
SERVED WITH A NOTICE OF INTENTION TO ARBITRATE, "UNLESS THE PARTY
SERVED APPLIES TO STAY THE ARBITRATION WITHIN TEN DAYS AFTER SUCH
SERVICE HE SHALL THEREAFTER BE PRECLUDED FROM OBJECTING THAT A VALID
AGREEMENT WAS NOT MADE  ...  ." 

FN2  THE PRINCIPAL SUPPORT FOR THE ACT CAME FROM TRADE ASSOCIATIONS
DEALING IN GROCERIES AND OTHER PERISHABLES AND FROM COMMERCIAL AND
MERCANTILE GROUPS IN THE MAJOR TRADING CENTERS.  50 A.B.A. REP. 357
(1925).  PRACTICALLY ALL WHO TESTIFIED IN SUPPORT OF THE BILL BEFORE
THE SENATE SUBCOMMITTEE IN 1923 EXPLAINED THAT THE BILL WAS DESIGNED TO
COVER CONTRACTS BETWEEN PEOPLE IN DIFFERENT STATES WHO PRODUCED,
SHIPPED, BOUGHT, OR SOLD COMMODITIES.  HEARING ON S. 4213 AND S. 4214
BEFORE THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY, 67TH
CONG., 4TH SESS., 3, 7, 9, 10 (1923).  THE SAME VIEWS WERE EXPRESSED IN
THE 1924 HEARINGS.  WHEN SENATOR STERLING SUGGESTED, "WHAT YOU HAVE IN
MIND IS THAT THIS PROPOSED LEGISLATION RELATES TO CONTRACTS ARISING IN
INTERSTATE COMMERCE," MR. BERNHEIMER, A CHIEF EXPONENT OF THE BILL,
REPLIED:  "YES, ENTIRELY.  THE FARMER WHO WILL SELL HIS CARLOAD OF
POTATOES, FROM WYOMING, TO A DEALER IN THE STATE OF NEW JERSEY, FOR
INSTANCE."  JOINT HEARINGS ON S. 1005 AND H.R. 646 BEFORE THE
SUBCOMMITTEES OF THE COMMITTEES ON THE JUDICIARY, 68TH CONG., 1ST
SESS., 7.  SEE ALSO ID., AT 27. 

FN3  IN SOME ACTS CONGRESS USES BROAD LANGUAGE AND DEFINES COMMERCE
TO INCLUDE EVEN THAT WHICH "AFFECTS" COMMERCE.  FEDERAL EMPLOYERS'
LIABILITY ACT, 35 STAT. 65, SEC 1, AS AMENDED, 45 U.S.C. SEC 51;
NATIONAL LABOR RELATIONS ACT, 49 STAT. 450, SEC 2, AS AMENDED, 29
U.S.C. SEC 152(7).  IN OTHER INSTANCES CONGRESS HAS CHOSEN MORE
RESTRICTIVE LANGUAGE.  FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1062,
SEC 6, AS AMENDED, 29 U.S.C. SEC 206.  PRIOR TO THIS CASE, THIS COURT
HAS ALWAYS MADE CAREFUL INQUIRY TO ASSURE ITSELF THAT IT IS APPLYING A
STATUTE WITH THE COVERAGE THAT CONGRESS INTENDED, SO THAT THE MEANING
IN THAT STATUTE OF "COMMERCE" WILL BE NEITHER EXPANDED NOR CONTRACTED. 
THE ARBITRATION ACT IS AN EXAMPLE OF CAREFULLY LIMITED LANGUAGE.  IT
COVERS ONLY THOSE CONTRACTS "INVOLVING COMMERCE," AND NOWHERE IS THERE
A SUGGESTION THAT IT IS MEANT TO EXTEND TO CONTRACTS "AFFECTING
COMMERCE."  THE ACT NOT ONLY USES NARROW LANGUAGE, BUT ALSO IS
COMPLETELY WITHOUT ANY DECLARATION OF SOME NATIONAL INTEREST TO BE
SERVED OR SOME NATIONWIDE COMPREHENSIVE SCHEME OF REGULATION TO BE
CREATED, AND THIS ABSENCE SUGGESTS THAT CONGRESS DID NOT INTEND TO
EXERT ITS FULL POWER OVER COMMERCE. 

FN4  ALTHOUGH F & C REQUESTED ARBITRATION PURSUANT TO NEW YORK LAW,
N. 1, SUPRA, IT IS NOT ENTIRELY CLEAR THAT NEW YORK LAW WOULD APPLY IN
ABSENCE OF THE FEDERAL ACT.  AND, AS THE COURT POINTS OUT, IT IS NOT
ENTIRELY CLEAR WHETHER NEW YORK COURTS WOULD CONSIDER PRIMA'S PROMISE
TO ARBITRATE INSEPARABLE FROM THE REST OF THE CONTRACT.  BUT, SINCE
ROBERT LAWRENCE HELD AND THE LOWER COURTS HERE ASSUMED THAT APPLICATION
OF NEW YORK LAW WOULD PRODUCE A DIFFERENT RESULT, AND SINCE THE COURT
DEEMS THE STATUS OF STATE LAW IMMATERIAL TO THIS CASE, I HAVE ASSUMED
THROUGHOUT THIS OPINION THAT, IN THE ABSENCE OF THE ARBITRATION ACT,
PRIMA WOULD HAVE BEEN ABLE TO OBTAIN JUDICIAL RESOLUTION OF ITS FRAUD
ALLEGATIONS UNDER NEW YORK LAW. 

FN5  THIS SECTION, UNLIKE SEC 4, IS EXPRESSLY APPLICABLE TO
SITUATIONS LIKE THE PRESENT ONE WHERE A DEFENDANT IN A CASE ALREADY
PENDING IN FEDERAL COURT MOVES FOR A STAY OF THE LAWSUIT.  IN FINDING
AN "EXPLICIT ANSWER" IN A PROVISION "NOT EXPRESSLY" APPLICABLE, THE
COURT ALMOST COMPLETELY IGNORES THE LANGUAGE OF SEC 3 AND THE PROVISO
TO SEC 2, A SECTION WHICH BERNHARDT HELD TO "DEFINE THE FIELD IN WHICH
CONGRESS WAS LEGISLATING."  350 U.S., AT 201. 

FN6  SENATE HEARING, SUPRA, AT 5. 

FN7  IBID. 

FN8  IBID. 

FN9  SENATE HEARING, SUPRA, AT 2. 

FN10  "THE ONE CONSTITUTIONAL PROVISION WE HAVE GOT IS THAT YOU HAVE
A RIGHT OF TRIAL BY JURY.  BUT YOU CAN WAIVE THAT.  AND YOU CAN DO THAT
IN ADVANCE.  AH, BUT THE QUESTION WHETHER YOU WAIVE IT OR NOT DEPENDS
ON WHETHER THAT IS YOUR SIGNATURE TO THE PAPER, OR WHETHER YOU
AUTHORIZED THAT SIGNATURE, OR WHETHER THE PAPER IS VALID PAPER OR NOT,
WHETHER IT WAS DELIVERED PROPERLY.  SO THERE IS A QUESTION THERE WHICH
YOU HAVE NOT WAIVED THE RIGHT OF TRIAL BY JURY ON."  JOINT HEARINGS,
SUPRA, AT 17. 

IT SEEMS QUITE CLEAR TO ME THAT MR. COHEN WAS REFERRING TO A JURY
TRIAL OF ALLEGATIONS CHALLENGING THE VALIDITY OF THE ENTIRE CONTRACT. 

FN11  SENATE HEARING, SUPRA, AT 9-11.  SEE ALSO JOINT HEARINGS,
SUPRA, AT 15. 

FN12  SENATE HEARING, SUPRA, AT 9. 

FN13  "NOT ALL QUESTIONS ARISING OUT OF CONTRACTS OUGHT TO BE
ARBITRATED.  IT IS A REMEDY PECULIARLY SUITED TO THE DISPOSITION OF THE
ORDINARY DISPUTES BETWEEN MERCHANTS AS TO QUESTIONS OF FACT - QUANTITY,
QUALITY, TIME OF DELIVERY, COMPLIANCE WITH TERMS OF PAYMENT, EXCUSES
FOR NON-PERFORMANCE, AND THE LIKE.  IT HAS A PLACE ALSO IN THE
DETERMINATION OF THE SIMPLER QUESTIONS OF LAW - THE QUESTIONS OF LAW
WHICH ARISE OUT OF THESE DAILY RELATIONS BETWEEN MERCHANTS AS TO THE
PASSAGE OF TITLE, THE EXISTENCE OF WARRANTIES, OR THE QUESTIONS OF LAW
WHICH ARE COMPLEMENTARY TO THE QUESTIONS OF FACT WHICH WE HAVE JUST
MENTIONED."  COHEN & DAYTON, THE NEW FEDERAL ARBITRATION LAW, 12 VA.
L. REV. 265, 281 (1926). 

FN14  SEE, E.G., SENATE HEARING, SUPRA, AT 3. 

FN15  "IT (ARBITRATION) IS NOT A PROPER REMEDY FOR ...  QUESTIONS
WITH WHICH THE ARBITRATORS HAVE NO PARTICULAR EXPERIENCE AND WHICH ARE
BETTER LEFT TO THE DETERMINATION OF SKILLED JUDGES WITH A BACKGROUND OF
LEGAL EXPERIENCE AND ESTABLISHED SYSTEMS OF LAW."  COHEN & DAYTON,
SUPRA, AT 281.    FN16  MR. JUSTICE FRANKFURTER CHOSE THIS ALTERNATIVE
IN HIS CONCURRING OPINION IN BERNHARDT, 350 U.S., AT 208, AND EVEN THE
COURT THERE SUGGESTED THAT ITS PRE-ERIE DECISION IN SHANFEROKE COAL &
SUPPLY CORP. V. WESTCHESTER SERVICE CORP., 293 U.S. 449, WHICH APPLIED
THE ACT TO AN INTERSTATE CONTRACT IN A DIVERSITY CASE, MIGHT BE DECIDED
DIFFERENTLY UNDER THE BERNHARDT HOLDING THAT ARBITRATION IS OUTCOME
DETERMINATIVE, 350 U.S., AT 202. 

FN17  FOR AN ANALYSIS OF THESE ALTERNATIVES, SEE GENERALLY,
SYMPOSIUM, ARBITRATION AND THE COURTS, 58 NW. U.L. REV. 466 (1963);
NOTE, 69 YALE L.J. 847 (1960).    FN18  THE HOUSE REPORT ACCOMPANYING
THE ACT EXPRESSLY STATED:  "THE PURPOSE OF THIS BILL IS TO MAKE VALID
AND ENFORCIBLE AGREEMENTS FOR ARBITRATION CONTAINED IN CONTRACTS
INVOLVING INTERSTATE COMMERCE  ...  OR WHICH MAY BE THE SUBJECT OF
LITIGATION IN THE FEDERAL COURTS."  H.R. REP. NO. 96, 68TH CONG., 1ST
SESS., 1 (1924).  MR. COHEN AND A COLLEAGUE, COMMENTING ON THE ACT
AFTER ITS PASSAGE, EXPLAINED:  "THE FEDERAL COURTS ARE GIVEN
JURISDICTION TO ENFORCE SUCH AGREEMENTS WHENEVER UNDER THE JUDICIAL
CODE THEY WOULD HAVE HAD JURISDICTION  ...  .  WHERE THE BASIS OF
JURISDICTION IS DIVERSITY OF CITIZENSHIP, THE DISPUTE MUST INVOLVE
$3000 AS IN SUITS AT LAW."  COHEN & DAYTON, SUPRA, AT 267.  SEE, E.G.,
COMMITTEE ON COMMERCE, TRADE & COMMERCIAL LAW, THE UNITED STATES
ARBITRATION LAW AND ITS APPLICATION, 11 A.B.A.J. 153, 156; NOTE, 20
ILL. L. REV. 111 (1925).  THE BILL, AS ORIGINALLY DRAFTED BY THE
AMERICAN BAR ASSOCIATION, 49 A.B.A. REP. 51-52 (1924), AND INTRODUCED
IN THE HOUSE, H.R. NO. 646, 68TH CONG., 1ST SESS. (1924), 65 CONG. REC.
11081-11082 (1924), EXPRESSLY PROVIDED IN SEC 8 "THAT IF THE BASIS OF
JURISDICTION BE DIVERSITY OF CITIZENSHIP ...  THE DISTRICT COURT  ...
SHALL HAVE JURISDICTION  ...  HEREUNDER NOTWITHSTANDING THE AMOUNT IN
CONTROVERSY IS UNASCERTAINED  ...  ."  THOUGH THAT PROVISION WAS
DELETED BY THE SENATE, THE OMISSION WAS NOT INTENDED SUBSTANTIALLY TO
ALTER THE LAW.  66 CONG. REC. 3004 (1925). 

FN19  COMMITTEE ON COMMERCE, TRADE & COMMERCIAL LAW, SUPRA, 11
A.B.A.J., AT 154. 

FN20  JOINT HEARINGS, SUPRA, AT 38. 

FN21  ALTHOUGH MR. COHEN, IN A BRIEF FILED WITH CONGRESS, SUGGESTED
THAT CONGRESS MIGHT RELY ON ITS POWER OVER COMMERCE, HE ADDED THAT
THERE WERE "QUESTIONS WHICH APPARENTLY CAN BE RAISED IN THIS
CONNECTION," ID., AT 38, AND EXPRESSLY DENIED THAT "THE PROPOSED LAW
DEPENDS FOR ITS VALIDITY UPON THE EXERCISE OF THE INTERSTATE-COMMERCE
AND ADMIRALTY POWERS OF CONGRESS," ID., AT 37.  AND WHEN HE TESTIFIED,
HE MADE THE POINT CLEARER: 

"SO WHAT WE HAVE DONE  ...  IN NEW YORK IS THAT WE HAVE  ...  MADE IT
A PART OF OUR JUDICIAL MACHINERY.  THAT IS WHAT WE HAVE DONE.  BUT IT
CAN NOT BE DONE UNDER OUR CONTITUTIONAL FORM OF GOVERNMENT AND COVER
THE GREAT FIELDS OF COMMERCE UNTIL YOU GENTLEMEN DO IT, IN THE EXERCISE
OF YOUR POWER TO CONFER JURISDICTION ON THE FEDERAL COURTS.  THE THEORY
ON WHICH YOU DO THIS IS THAT YOU HAVE THE RIGHT TO TELL THE FEDERAL
COURTS HOW TO PROCEED."  ID., AT 17. 

THE LEGISLATIVE HISTORY WHICH THE COURT RECITES TO SUPPORT ITS
ASSERTION THAT CONGRESS RELIED PRINCIPALLY ON ITS POWER OVER COMMERCE
CONSISTS MAINLY OF STATEMENTS THAT THE ACT WAS DESIGNED TO COVER ONLY
CONTRACTS IN COMMERCE, AND THAT IS CERTAINLY TRUE.  BUT MERELY BECAUSE
THE ACT WAS DESIGNED TO ENFORCE ARBITRATION AGREEMENTS ONLY IN
CONTRACTS IN COMMERCE, DOES NOT MEAN THAT CONGRESS WAS PRIMARILY
RELYING ON ITS POWER OVER COMMERCE IN SUPPLYING THAT REMEDY OF
ENFORCEABILITY. 

FN22  COHEN & DAYTON, SUPRA, AT 276. 

FN23  SEE, E.G., COHEN & DAYTON, SUPRA, AT 277; COMMITTEE ON
COMMERCE, TRADE & COMMERCIAL LAW, SUPRA, AT 155, 156.  MR. ROSE,
REPRESENTING THE ARBITRATION SOCIETY OF AMERICA, SUGGESTED THAT THE ACT
MIGHT HAVE THE BENEFICIAL EFFECT OF ENCOURAGING STATES TO ENACT SIMILAR
LAWS, JOINT HEARINGS, SUPRA, AT 28, BUT MR. COHEN ASSURED CONGRESS: 

"NOR CAN IT BE SAID THAT THE CONGRESS OF THE UNITED STATES, DIRECTING
ITS OWN COURTS  ...  , WOULD INFRINGE UPON THE PROVINCES OR
PREROGATIVES OF THE STATES  ...  .  THE QUESTION OF THE ENFORCEMENT
RELATES TO THE LAW OF REMEDIES AND NOT TO SUBSTANTIVE LAW.  THE RULE
MUST BE CHANGED FOR THE JURISDICTION IN WHICH THE AGREEMENT IS SOUGHT
TO BE ENFORCED  ...  .  THERE IS NO DISPOSITION THEREFORE BY MEANS OF
THE FEDERAL BLUDGEON TO FORCE AN INDIVIDUAL STATE INTO AN UNWILLING
SUBMISSION TO ARBITRATION ENFORCEMENT."  ID., AT 39-40. 

FN24  THIS SEEMS IMPLICIT IN SEC 3'S PROVISION FOR A STAY BY A "COURT
IN WHICH SUCH SUIT IS PENDING" AND SEC 4'S PROVISION THAT ENFORCEMENT
MAY BE ORDERED BY "ANY UNITED STATES DISTRICT COURT WHICH, SAVE FOR
SUCH AGREEMENT, WOULD HAVE JURISDICTION UNDER TITLE 28, IN A CIVIL
ACTION OR IN ADMIRALTY OF THE SUBJECT MATTER OF A SUIT ARISING OUT OF
THE CONTROVERSY BETWEEN THE PARTIES." 

FN25  IT SHOULD BE NOTED THAT THE NEW YORK COURTS APPARENTLY DO NOT
FIND ANY INCONSISTENCY BETWEEN APPLICATION OF A NONSEPARABILITY RULE
AND THAT STATE'S POLICY OF ENFORCING ARBITRATION AGREEMENTS, A POLICY
EMBODIED IN A STATUTE FROM WHICH THE FEDERAL ACT WAS COPIED. 

FN26  S. REP. NO. 536, 68TH CONG., 1ST SESS., 2 (1924); JOINT
HEARINGS, SUPRA, AT 38. 

FN27  COHEN & DAYTON, SUPRA, AT 271. 

FN28  ID., AT 279. 

FN29  65 CONG. REC. 1931 (1924). 

FN30  H.R. REP. NO. 96, 68TH CONG., 1ST SESS. (1924). 

FN31  "THIS IS A DECLARATION OF NATIONAL LAW EQUALLY APPLICABLE IN
STATE OR FEDERAL COURTS."  271 F.2D, AT 407. 

FN32  SEE N. 23, SUPRA.
..END :






WISCONSIN V. ILLINOIS 388 U.S. 426 


NO. 1, ORIGINAL.  DECREE APRIL 21, 1930.  - DECREE ENLARGED MAY 22,
1933.  - DECREE ENTERED JUNE 12, 1967.*  DECREE REPORTED, 281 U.S. 696;
DECREE ENLARGED, 289 U.S. 395. 

*TOGETHER WITH NO. 2, ORIGINAL, MICHIGAN V. ILLINOIS ET AL., NO. 3,
ORIGINAL, NEW YORK V. ILLINOIS ET AL., AND NO. 11, ORIGINAL, ILLINOIS
V. MICHIGAN ET AL.


THE COURT, HAVING REOPENED NOS. 1, 2 AND 3, ORIGINAL, AND HAVING GRANTED
LEAVE TO FILE NO. 11, ORIGINAL, ENTERED THIS DECREE. 

WISCONSIN ET AL. V. ILLINOIS ET AL.

         DECREE. 

THIS COURT HAVING REOPENED ORIGINAL CASES NOS. 1, 2, AND 3, AND
HAVING GRANTED LEAVE TO FILE ORIGINAL CASE NO. 11, AND HAVING REFERRED
ALL SUCH CASES TO A SPECIAL MASTER WHO HAS FILED HIS REPORT, AND THE
PARTIES HAVING AGREED TO THE FORM OF THE DECREE, THE FINDING OF FACT IN
THE REPORT ARE HEREBY ADOPTED, AND IT BEING UNNECESSARY AT THIS TIME TO
CONSIDER THE SPECIAL MASTER'S LEGAL CONCLUSIONS, 

IT IS ORDERED, ADJUDGED, AND DECREED THAT: 

1.  THE STATE OF ILLINOIS AND ITS MUNICIPALITIES, POLITICAL
SUBDIVISIONS, AGENCIES, AND INSTRUMENTALITIES, INCLUDING, AMONG OTHER,
THE CITIES OF CHICAGO, EVANSTON, HIGHLAND PARK, HIGHWOOD AND LAKE
FOREST, THE VILLAGES OF WILMETTE, KENILWORTH, WINNETKA, AND GLENCOE,
THE ELMHURST-VILLA PARK-LOMBARD WATER COMMISSION, THE CHICAGO PARK
DISTRICT AND THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO,
THEIR EMPLOYEES AND AGENTS AND ALL PERSONS ASSUMING TO ACT UNDER THEIR
AUTHORITY, ARE HEREBY ENJOINED FROM DIVERTING ANY OF THE WATERS OF LAKE
MICHIGAN OR ITS WATERSHED INTO THE ILLINOIS WATERWAY, WHETHER BY WAY OF
DOMESTIC PUMPAGE FROM THE LAKE THE SEWAGE EFFLUENT DERIVED FROM WHICH
REACHES THE ILLINOIS WATERWAY, OR BY WAY OF STORM RUNOFF FROM THE LAKE
MICHIGAN WATERSHED WHICH IS DIVERTED INTO THE SANITARY AND SHIP CANAL,
OR BY WAY OF DIRECT DIVERSION FROM THE LAKE INTO THE CANAL, IN EXCESS
OF AN AVERAGE FOR ALL OF THEM COMBINED OF 3,200 CUBIC FEET PER SECOND. 
"DOMESTIC PUMPAGE," AS USED IN THIS DECREE, INCLUDES WATER SUPPLIED TO
COMMERCIAL AND INDUSTRIAL ESTABLISHMENTS AND "DOMESTIC USE" INCLUDES
USE BY SUCH ESTABLISHMENTS.  THE WATER PERMITTED BY THIS DECREE TO BE
DIVERTED FROM LAKE MICHIGAN AND ITS WATERSHED MAY BE APPORTIONED BY THE
STATE OF ILLINOIS AMONG ITS MUNICIPALITIES, POLITICAL SUBDIVISIONS,
AGENCIES, AND INSTRUMENTALITIES FOR DOMESTIC USE OR FOR DIRECT
DIVERSION INTO THE SANITARY AND SHIP CANAL TO MAINTAIN IT IN A
REASONABLY SATISFACTORY SANITARY CONDITION, IN SUCH MANNER AND AMOUNTS
AND BY AND THROUGH SUCH INSTRUMENTALITIES AS THE STATE MAY DEEM PROPER,
SUBJECT TO ANY REGULATIONS IMPOSED BY CONGRESS IN THE INTERESTS OF
NAVIGATION OR POLLUTION CONTROL. 

2.  THE AMOUNT OF WATER DIVERTED INTO THE SANITARY AND SHIP CANAL
DIRECTLY FROM LAKE MICHIGAN AND AS STORM RUNOFF FROM THE LAKE MICHIGAN
WATERSHED SHALL BE DETERMINED BY DEDUCTING FROM THE TOTAL FLOW IN THE
CANAL AT LOCKPORT (A) THE TOTAL AMOUNT OF DOMESTIC PUMPAGE FROM LAKE
MICHIGAN AND FROM GROUND SOURCES IN THE LAKE MICHIGAN WATERSHED, EXCEPT
TO THE EXTENT THAT ANY SUCH GROUND SOURCES ARE SUPPLIED BY INFILTRATION
FROM LAKE MICHIGAN, BY THE STATE OF ILLINOIS AND ITS MUNICIPALITIES,
POLITICAL SUBDIVISIONS, AGENCIES, AND INSTRUMENTALITIES THE SEWAGE
EFFLUENT DERIVED FROM WHICH REACHES THE CANAL, (B) THE TOTAL AMOUNT OF
DOMESTIC PUMPAGE FROM GROUND AND SURFACE SOURCES OUTSIDE THE LAKE
MICHIGAN WATERSHED THE SEWAGE EFFLUENT DERIVED FROM WHICH REACHES THE
CANAL, (C) THE TOTAL ESTIMATED STORM RUNOFF FROM THE UPPER ILLINOIS
RIVER WATERSHED REACHING THE CANAL, (D) THE TOTAL AMOUNT OF DOMESTIC
PUMPAGE FROM ALL SOURCES BY MUNICIPALITIES AND POLITICAL SUBDIVISIONS
OF THE STATES OF INDIANA AND WISCONSIN THE SEWAGE EFFLUENT DERIVED FROM
WHICH REACHES THE CANAL, AND (E) ANY WATER DIVERTED BY ILLINOIS, WITH
THE CONSENT OF THE UNITED STATES, INTO LAKE MICHIGAN FROM ANY SOURCE
OUTSIDE THE LAKE MICHIGAN WATERSHED. 

3.  FOR THE PURPOSE OF DETERMINING WHETHER THE TOTAL AMOUNT OF WATER
DIVERTED FROM LAKE MICHIGAN BY THE STATE OF ILLINOIS AND ITS
MUNICIPALITIES, POLITICAL SUBDIVISIONS, AGENCIES, AND INSTRUMENTALITIES
IS NOT IN EXCESS OF THE MAXIMUM AMOUNT PERMITTED BY THIS DECREE, THE
AMOUNTS OF DOMESTIC PUMPAGE FROM THE LAKE BY THE STATE AND ITS
MUNICIPALITIES, POLITICAL SUBDIVISIONS, AGENCIES, AND INSTRUMENTALITIES
THE SEWAGE AND SEWAGE EFFLUENT DERIVED FROM WHICH REACHES THE ILLINOIS
WATERWAY, EITHER ABOVE OR BELOW LOCKPORT, SHALL BE ADDED TO THE AMOUNT
OF DIRECT DIVERSION INTO THE CANAL FROM THE LAKE AND STORM RUNOFF
REACHING THE CANAL FROM THE LAKE MICHIGAN WATERSHED COMPUTED AS
PROVIDED IN PARAGRAPH 2 OF THIS DECREE.  THE ACCOUNTING PERIOD SHALL
CONSIST OF THE PERIOD OF 12 MONTHS TERMINATING ON THE LAST DAY OF
FEBRUARY.  A PERIOD OF FIVE YEARS, CONSISTING OF THE CURRENT ANNUAL
ACCOUNTING PERIOD AND THE PREVIOUS FOUR SUCH PERIODS (ALL AFTER THE
EFFECTIVE DATE OF THIS DECREE), SHALL BE PERMITTED, WHEN NECESSARY, FOR
ACHIEVING AN AVERAGE DIVERSION WHICH IS NOT IN EXCESS OF THE MAXIMUM
PERMITTED AMOUNT; PROVIDED, HOWEVER, THAT THE AVERAGE DIVERSION IN ANY
ANNUAL ACCOUNTING PERIOD SHALL NOT EXCEED ONE HUNDRED TEN (110) PER
CENT OF THE MAXIMUM AMOUNT PERMITTED BY THIS DECREE.  THE MEASUREMENTS
AND COMPUTATIONS REQUIRED BY THIS DECREE SHALL BE MADE BY THE
APPROPRIATE OFFICERS, AGENCIES, OR INSTRUMENTALITIES OF THE STATE OF
ILLINOIS UNDER THE GENERAL SUPERVISION AND DIRECTION OF THE CORPS OF
ENGINEERS OF THE UNITED STATES ARMY. 

4.  THE STATE OF ILLINOIS MAY MAKE APPLICATION FOR A MODIFICATION OF
THIS DECREE SO AS TO PERMIT THE DIVERSION OF ADDITIONAL WATER FROM LAKE
MICHIGAN FOR DOMESTIC USE WHEN AND IF IT APPEARS THAT THE REASONABLE
NEEDS OF THE NORTHEASTERN ILLINOIS METROPOLITAN REGION (COMPRISING
COOK, DU PAGE, KANE, LAKE, MCHENRY, AND WILL COUNTIES) FOR WATER FOR
SUCH USE CANNOT BE MET FROM THE WATER RESOURCES AVAILABLE TO THE
REGION, INCLUDING BOTH GROUND AND SURFACE WATER AND THE WATER PERMITTED
BY THIS DECREE TO BE DIVERTED FROM LAKE MICHIGAN, AND IF IT FURTHER
APPEARS THAT ALL FEASIBLE MEANS REASONABLE AVAILABLE TO THE STATE OF
ILLINOIS AND ITS MUNICIPALITIES, POLITICAL SUBDIVISIONS, AGENCIES, AND
INSTRUMENTALITIES HAVE BEEN EMPLOYED TO IMPROVE THE WATER QUALITY OF
THE SANITARY AND SHIP CANAL AND TO CONSERVE AND MANAGE THE WATER
RESOURCES OF THE REGION AND THE USE OF WATER THEREIN IN ACCORDANCE WITH
THE BEST MODERN SCIENTIFIC KNOWLEDGE AND ENGINEERING PRACTICE. 

5.  THIS DECREE SHALL BECOME EFFECTIVE ON MARCH 1, 1970, AND SHALL
THEREUPON SUPERSEDE THE DECREE ENTERED BY THIS COURT IN NOS. 1, 2, AND
3, ORIGINAL DOCKET, ON APRIL 21, 1930, AS ENLARGED MAY 22, 1933,
PROVIDED THAT FOR THE PERIOD BETWEEN JANUARY 1, 1970, AND MARCH 1,
1970, THE AMOUNT OF WATER DIVERTED BY ILLINOIS INTO THE SANITARY AND
SHIP CANAL (DETERMINED IN ACCORDANCE WITH PARAGRAPH 2 OF THIS DECREE)
SHALL NOT EXCEED AN AVERAGE OF 1,500 CUBIC FEET PER SECOND. 

6.  THE COMPLAINT OF THE STATE OF ILLINOIS IN NO. 11, ORIGINAL
DOCKET, ON BEHALF OF ITS INSTRUMENTALITY, THE ELMHURST-VILLA PARK
LOMBARD WATER COMMISSION, IS HEREBY DISMISSED, WITHOUT PREJUDICE TO
THAT COMMISSION SHARING IN THE WATER PERMITTED BY THIS DECREE TO BE
DIVERTED FROM LAKE MICHIGAN. 

7.  ANY OF THE PARTIES HERETO MAY APPLY AT THE FOOT OF THIS DECREE
FOR ANY OTHER OR FURTHER ACTION OR RELIEF, AND THIS COURT RETAINS
JURISDICTION OF THE SUITS IN NOS. 1, 2, AND 3, ORIGINAL DOCKET, FOR THE
PURPOSE OF MAKING ANY ORDER OR DIRECTION, OR MODIFICATION OF THIS
DECREE, OR ANY SUPPLEMENTAL DECREE, WHICH IT MAY DEEM AT ANY TIME TO BE
PROPER IN RELATION TO THE SUBJECT MATTER IN CONTROVERSY. 

8.  ALL THE PARTIES TO THESE PROCEEDINGS SHALL BEAR THEIR OWN COSTS. 
THE COSTS AND EXPENSES OF THE SPECIAL MASTER SHALL BE EQUALLY DIVIDED
BETWEEN THE PLAINTIFFS AS A GROUP AND THE DEFENDANTS AS A GROUP IN NOS.
1, 2, AND 3, ORIGINAL DOCKET.  THE COSTS AND EXPENSES THUS IMPOSED UPON
THE PLAINTIFFS AND DEFENDANTS SHALL BE BORNE BY THE INDIVIDUAL
PLAINTIFFS AND DEFENDANTS, RESPECTIVELY, IN EQUAL SHARES. 
..END :
























JACOBS V. NEW YORK 388 U.S. 431 


NO. 660.  DECIDED JUNE 12, 1967.  - APPEAL DISMISSED. 


JACOBS ET AL. V. NEW YORK. 

APPEAL FROM THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK,
FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED AS
MOOT. 

MR. JUSTICE BRENNAN WOULD AFFIRM THE JUDGMENT OF THE LOWER COURT. 

MR. JUSTICE FORTAS WOULD REVERSE THE JUDGMENT OF THE LOWER COURT. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

I DISSENT FROM THE COURT'S DISMISSAL OF THIS APPEAL AS MOOT.  THESE
APPELLANTS WERE CONVICTED BY A THREE-JUDGE BENCH OF THE CRIMINAL COURT
OF NEW YORK CITY OF VIOLATING SEC 1141 OF THE PENAL LAW OF NEW YORK,
WHICH PROVIDES IN PERTINENT PART: 

"1.  A PERSON WHO SELLS, LENDS, GIVES AWAY, DISTRIBUTES, SHOWS OR
TRANSMUTES  ...  ANY OBSCENE, LEWD, LASCIVIOUS, FILTHY, INDECENT,
SADISTIC, MASOCHISTIC  ...  MOTION PICTURE FILM  ...  WHICH MAY OR MAY
NOT REQUIRE MECHANICAL OR OTHER MEANS TO BE TRANSMUTED INTO AUDITORY,
VISUAL OR SENSORY REPRESENTATIONS OF SUCH CHARACTER  ...  . 

"2.  ...  IS GUILTY OF A MISDEAMEANOR, AND, UPON CONVICTION, SHALL BE
SENTENCED TO NOT LESS THAN TEN DAYS NOR MORE THAN ONE YEAR IMPRISONMENT
...  ." 

ON AUGUST 7, 1964, APPELLANTS JACOBS AND MEKAS WERE SENTENCED TO 60
DAYS IN THE NEW YORK CITY WORKHOUSE, WITH EXECUTION OF THE SENTENCE
SUSPENDED.  APPELLANT KARPF RECEIVED A SUSPENDED SENTENCE. 

IN DISMISSING THIS APPEAL FOR MOOTNESS, THE COURT APPARENTLY BASES
ITS ACTION UPON THE FACT THAT UNDER NEW YORK LAW, THE MAXIMUM TIME
DURING WHICH APPELLANTS COULD HAVE HAD THEIR SUSPENDED SENTENCES
REVOKED AND REPLACED BY PRISON SENTENCES WAS ONE YEAR FROM THE DATE OF
THE ORIGINAL SENTENCES.  N.Y. CODE CRIM. PROC. SEC 470-A.  THE STATE
ARGUES THAT THIS APPEAL IS MOOT BECAUSE MORE THAN ONE YEAR HAS RUN FROM
AUGUST 7, 1964, AND APPELLANTS ARE UNDER NO PRESENT THREAT OF
IMPRISONMENT.  MOREOVER, THE STATE CONTENDS THAT NEITHER NEW YORK LAW
NOR FEDERAL LAW IMPOSES ANY FURTHER PENALTY FOR CONVICTION OF THE
MISDEMEANOR INVOLVED IN THIS CASE. 

I CANNOT ACCEPT THIS ARGUMENT.  THE PRACTICAL RESULT OF THE COURT'S
WILLINGNESS TO DISMISS THIS APPEAL AS MOOT IS THAT STATES MAY INSULATE
THEIR CONVICTIONS UNDER LAWS RAISING CONSTITUTIONAL QUESTIONS FROM
REVIEW ON THE MERITS BY THIS COURT BY THE SIMPLE EXPEDIENT OF SUSPENDED
SENTENCE WHERE A TIME LIMIT FOR THE IMPOSITION OF AN EXECUTED SENTENCE
IS SHORT ENOUGH TO RUN BEFORE AN APPEAL CAN BE TAKEN TO THIS COURT.  A
STATE COULD THUS KEEP A PERSON UNDER CONTINUAL THREAT OF IMPRISONMENT
WITHOUT REVIEW BY THIS COURT OF ANY CONSTITUTIONAL OBJECTIONS OF HIS
CONVICTIONS BY A CONTINUED SERIES OF CONVICTIONS AND SUSPENDED
SENTENCES.  BY THE TIME ANY SINGLE CONVICTION COULD BE BROUGHT TO THIS
COURT, THE DEFENDANT'S JEOPARDY UNDER THAT PARTICULAR SENTENCE WOULD BE
CONCLUDED.  HOWEVER, THE DEFENDANT COULD STILL BE OPPRESSED BY
SUBSEQUENT SUSPENDED SENTENCES WHICH WOULD THEMSELVES BY UNREVIEWABLE
BY THE TIME THE DEFENDANT COULD BRING HIS CASE TO THIS COURT.  I CANNOT
AGREE THAT THE COMMANDS OF THE UNITED STATES CONSTITUTION CAN BE THIS
EASILY SUSPENDED BY THE STATES.  MOREOVER, THIS POWER, WHICH UNDER THIS
DISMISSAL CAN BE EXERCISED WITHOUT CONSTITUTIONAL RESTRAINT, GIVES THE
STATE A WEAPON WHICH MIGHT IN SOME CASES BE USED TO SUPPRESS
CONSTITUTIONALLY PROTECTED CONDUCT.  AFTER A PERSON HAS BEEN CONVICTED
UNDER A STATUTE WHICH LIMITS HIS RIGHT OF EXPRESSION, HIS SUBSEQUENT
CONDUCT WILL BE SIGNIFICANTLY CHILLED BY THE CONVICTION ON HIS RECORD. 
PARTICULARLY WHERE, AS IN THIS CASE, THE CONVICTIONS STEM FROM CONDUCT
WHICH IS DIRECTLY IN LINE WITH APPELLANTS' PROFESSION AS MOVIE
EXHIBITORS, THEY MAY JUSTIFIABLY FEAR THAT ANY FUTURE CONDUCT RUNNING
THE DANGER OF INFRINGING THE STATUTE WILL BE MORE HARSHLY TREATED
BECAUSE OF THE PREVIOUS UNREVIEWED CONVICTION.  WHO CAN DOUBT THAT A
JUDGE'S REACTION TO ANOTHER CONVICTION UNDER SEC 1141 OF THE NEW YORK
PENAL LAW WOULD NOT BE COLORED BY THE FACT OF A PRIOR CONVICTION?  FOR
EXAMPLE, THESE APPELLANTS ARGUE IN THIS CASE THAT THEY SHOULD NOT BE
CONSTITUTIONALLY CONVICTED BECAUSE THEIR CONDUCT DEMONSTRATES THEIR
GOOD-FAITH BELIEF THAT THEY WERE NOT EXHIBITING OBSCENE MATERIAL.  THEY
MAY HAVE FELT THAT EVEN IF A STATE JUDGE DID NOT ACCEPT THEIR
CONSTITUTIONAL ARGUMENT BASED ON THEIR GOOD FAITH, HE MIGHT AT LEAST
GIVE THE APPELLANTS THE MOST LENIENT SENTENCE.  HOWEVER, ONCE THEY HAVE
BEEN CONVICTED AND HAVE BEEN UNABLE TO HAVE THE CONSTITUTIONALLY OF THE
CONVICTION PASSED UPON BY THIS COURT, THEIR SITUATION IS RADICALLY
DIFFERENT.  EVEN IF THEY HAVE BEEN CONVICTED OF ENGAGING IN WHAT THIS
COURT MIGHT FINALLY DETERMINE TO BE CONSTITUTIONALLY PROTECTED CONDUCT,
THEY ARE LIKELY TO ORDER THEIR FUTURE CONDUCT ON THE BASIS OF THE
ASSUMED VALIDITY OF THE PREVIOUS CONVICTION.  WHEN WE ARE DEALING WITH
FIRST AMENDMENT FREEDOM, FREEDOMS WE HAVE HELD REQUIRE BREATHING SPACE
TO SURVIVE, SEE NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964),
NAACP V. BUTTON, 371 U.S. 415 (1963), WE SHOULD BE EXTREMELY SLOW TO
ACCEPT MOOTNESS DOCTRINES WHICH GRANT THE STATES AN UNREVIEWABLE POWER
TO SUPPRESS MODES OF EXPRESSION. 

I BELIEVE THE COURT IS STRAINING THE MOOTNESS DOCTRINE AND IN DOING
SO IS BYPASSING IMPORTANT CONSTITUTIONAL QUESTIONS IN THE OBSCENITY
AREA WHICH THIS COURT HAS AN OBLIGATION TO DECIDE.  IN THIS CASE, WE
ARE PRESENTED WITH AN OPPORTUNITY FOR INJECTING SOME CLARITY INTO THE
PROBLEM OF WHAT CONSTITUTES OBSCENITY, A PROBLEM WHICH HAS BECOME
INCREASINGLY MUDDLED AND DIFFICULT FOR THE FEDERAL AND STATE COURTS AND
LEGISLATURES TO UNDERSTAND SINCE WE FIRST DEFINED THE REACH OF THE
FIRST AMENDMENT IN THIS AREA IN ROTH V. UNITED STATES, 354 U.S. 476
(1957).  THE QUESTIONS PRESENTED ARE NOT EASY, BUT I AM SURE THAT IT IS
OUR CONSTITUTIONAL DUTY TO GRAPPLE WITH THEM AND TO PRESENT TO THE
COUNTRY AN UNDERSTANDABLE STATEMENT OF HOW FAR THE FIRST AMENDMENT
RESTRICTS LEGISLATIVE ATTEMPTS TO CONTROL OBSCENE MATERIAL.  SIMILARLY,
THE COURT DISMISSED AS MOOT THE APPEAL IN NO. 993, TANNENBAUM V. NEW
YORK, POST, P. 439, BECAUSE A JAIL SENTENCE WAS SUSPENDED AND A FINE
HAS BEEN PAID.  THAT CASE RAISES THE IMPORTANT QUESTION NEVER ADDRESSED
BY THIS COURT OF THE CONSTITUTIONALITY OF "VARIABLE OBSCENITY" LAWS
WHICH RESTRICT THE SALE OF OBSCENE MATERIALS TO MINORS ON THE BASIS OF
DEFINITIONS OF OBSCENITY DRAWN EXPRESSLY WITH MINORS IN MIND.  WHILE I
DO NOT EXPRESS A VIEW AS TO THE MERITS OF THIS QUESTION, I THINK THE
GREAT IMPORTANCE OF THE QUESTION TO THE NATION, AND THE RESPONSIBILITY
OF THIS COURT TO ELABORATE THE SCOPE AND MEANING OF THE FIRST
AMENDMENT, SHOULD REQUIRE THE COURT TO NOTE JURISDICTION AND HEAR THE
CASE ON THE MERITS.  A SIMILAR STRAINED CONCEPTION OF MOOTNESS
RESULTING IN A FAILURE OF DECISION ON THE MERITS RECALLS THE COURT'S
AVOIDANCE OF A CONSTITUTIONAL DECISION IN THE SHORT PER CURIAM IN
PARKER V. ELLIS, 362 U.S. 574 (1960).  I EXPRESSED THE BELIEF IN THAT
CASE, WHICH I REAFFIRM HERE, THAT THIS COURT HAS AN OBLIGATION TO
DECIDE, AND NOT AVOID, IMPORTANT CONSTITUTIONAL QUESTIONS WHICH ARE
CONCRETELY PRESENTED TO IT BY LITIGANTS HAVING ADVERSE INTERESTS.  IF
CONGRESS HAD INTENDED THAT OUR JURISDICTION BE DISCRETIONARY IN ALL
CASES, IT WOULD NOT HAVE DIFFERENTIATED IN THE STATUTES DEFINING OUR
APPELLATE JURISDICTION BETWEEN APPEALS AND WRITS OF CERTIORARI. 

AS MR. JUSTICE DOUGLAS POINTS OUT IN HIS DISSENT TO THE DISMISSAL FOR
MOOTNESS IN THIS CASE, THERE ARE ADDITIONAL REASONS WHY THIS CASE
SHOULD NOT BE DEEMED MOOT.  APPELLANTS' FILM AND EQUIPMENT WERE SEIZED
BY THE POLICE AT THE TIME OF THEIR ARRESTS.  OF COURSE, IF APPELLANTS
WERE NOT CONVICTED, OR IF THERE CONVICTIONS WERE REVERSED, THEY WOULD
BE ENTITLED UNDER STATE LAW TO THE RETURN OF THEIR PROPERTY.  ON THE
OTHER HAND, OUR DISMISSAL LEAVES THESE CONVICTIONS UNCHALLENGED, AND
APPELLANTS' FILM AND EQUIPMENT WILL BE SUBJECT TO FORFEITURE.  N.Y.
PENAL LAW SEC 1141-C, N.Y. CODE CRIM. PROC. SEC 22-A.  THUS, APPELLANTS
HAVE A CLEAR PECUNIARY INTEREST IN THE OUTCOME OF THIS APPEAL. 
APPELLANTS ALSO POINT TO THE LIKELIHOOD THAT THESE CONVICTIONS WILL
IMPAIR THEIR ABILITY TO SECURE A LICENSE TO OPERATE A MOTION PICTURE
THEATER.  UNDER THE ADMINISTRATIVE CODE OF THE CITY OF NEW YORK, WHICH
ESTABLISHES A COMPREHENSIVE SYSTEM OF LICENSING PROCEDURES, THE
DEPARTMENT OF LICENSES IS CHARGED WITH ASSURING THAT MOTION PICTURE
THEATRES ARE NOT OFFENSIVE TO "PUBLIC MORALS."  SEC B32-26.0.  THESE
CONVICTIONS WILL SURELY AFFECT APPELLANTS' ABILITY TO PROCURE A LICENSE
TO EXHIBIT MOTION PICTURE IN THE FUTURE. 

SINCE I BELIEVE THIS APPEAL CANNOT BE DISMISSED AS MOOT, I BELIEVE
THE COURT MUST CONSIDER THE CASE ON THE MERITS.  I AM SATISFIED THAT
THESE CONVICTIONS SHOULD BE AFFIRMED.  UNDER THE STANDARDS SET OUT BY
THE COURT IN ROTH V. UNITED STATES, 354 U.S. 476 (1957), THIS FILM IS
NOT WITHIN THE PROTECTIONS OF THE FIRST AMENDMENT.  WE FORMULATED THE
TEST IN THAT CASE AS BEING WHETHER THE MATERIAL WAS UTTERLY WITHOUT
SOCIAL VALUE, WHETHER IT WENT SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF
CANDOR IN REPRESENTING SEXUAL MATTERS, AND WHETHER "TO THE AVERAGE
PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME
OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST."  ID.,
AT 489.  THIS FILM FALLS OUTSIDE THE RANGE OF EXPRESSION PROTECTED BY
THE FIRST AMENDMENT ACCORDING TO THE CRITERIA SET OUT IN ROTH. 

FOR THE REASONS I HAVE GIVEN, I WOULD CONSIDER THIS APPEAL ON THE
MERITS AND I WOULD AFFIRM THESE CONVICTIONS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WE HAVE HERE TWO CASES IN WHICH APPELLANTS HAVE BEEN CONVICTED UNDER
A STATE'S OBSCENITY STATUTES.   IN NO. 660, APPELLANTS WERE CONVICTED
OF SHOWING AN ALLEGEDLY OBSCENE MOTION PICTURE.  THEY WERE GIVEN
SUSPENDED SENTENCES AND THE TIME DURING WHICH THE SUSPENDED SENTENCES
COULD HAVE BEEN REVOKED AND PRISON SENTENCES IMPOSED HAS NOW PASSED. 
IN NO. 993, POST, P. 439, APPELLANT WAS CONVICTED OF SELLING AN
ALLEGEDLY OBSCENE MAGAZINE TO A PERSON UNDER 18.  HE WAS SENTENCED TO
30 DAYS AND FINED $100.  THE FINE HAS BEEN PAID AND THE SENTENCE WAS
SUSPENDED.  THE FIRST AMENDMENT ISSUES IN THESE CASES ARE SUBSTANTIAL. 
NONETHELESS, THEY ARE DISMISSED AS MOOT BECAUSE THE APPELLANTS ARE NO
LONGER SUBJECT TO THE CUSTODY OF THE STATE AND IN NO. 993 THE FINE HAS
BEEN PAID.  THE COURT APPARENTLY BELIEVES THIS RESULT TO BE COMMANDED
BY OUR PRIOR CASES.  I DISAGREE. 

THE MOOTNESS DOCTRINE IS EXPRESSIVE OF THE NEED FOR ANTAGONISTIC
PARTIES WHOSE VIGOROUS ARGUMENT WILL SHARPEN THE ISSUES.  IT IS PART OF
THE "CASE OR CONTROVERSY" REQUIREMENT OF ARTICLE III.  ST. PIERRE V.
UNITED STATES, 319 U.S. 41, 42.  BUT IT IS NOT SO RIGID AS TO DEFEAT
SUBSTANTIAL RIGHTS, NOR SO INFLEXIBLE AS TO PREVENT THIS COURT FROM
FACING SERIOUS CONSTITUTIONAL QUESTIONS.  THUS, WE HAVE HELD THAT
SERVICE OF A SENTENCE DOES NOT RENDER A CASE MOOT WHERE THE CONVICTION,
IF ALLOWED TO STAND, WILL RESULT IN COLLATERAL DISABILITIES SUCH AS A
LOSS OF CIVIL RIGHTS.  FISWICK V. UNITED STATES, 329 U.S. 211; UNITED
STATES V. MORGAN, 346 U.S. 502. 

IN THE PRESENT CASES, WE ARE IN THE AREA OF THE FIRST AMENDMENT. 
OVER AND OVER AGAIN WE HAVE STRESSED THAT FIRST AMENDMENT RIGHTS NEED
"BREATHING SPACE TO SURVIVE" (NAACP V. BUTTON, 371 U.S. 415, 433); AND
WE HAVE BEEN WATCHFUL LEST COERCIVE MEASURES EXERCISE AN IN TERROREM
EFFECT WHICH INTIMIDATES PEOPLE FROM EXERCISING THEIR FIRST AMENDMENT
RIGHTS.  SEE, E.G., SPEISER V. RANDALL, 357 U.S. 513; NAACP V. BUTTON,
SUPRA; KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589.  WE HAVE BEEN
MINDFUL THAT "THE THREAT OF SANCTIONS MAY DETER  ...  ALMOST AS
POTENTLY AS THE ACTUAL APPLICATION OF SANCTIONS."  NAACP V. BUTTON,
SUPRA, AT 433.  ACCORDINGLY, WE HAVE MODIFIED TRADITIONAL RULES OF
STANDING AND PREMATURITY TO FIT THE PECULIARITIES NECESSARY TO ENSURE
ADEQUATE PROTECTION OF FIRST AMENDMENT RIGHTS.  SEE DOMBROWSKI V.
PFISTER, 380 U.S. 479. 

THE IN TERROREM EFFECT OF DENYING REVIEW TO CASES SUCH AS THESE
BECAUSE SENTENCES HAVE BEEN SUSPENDED OR SHORT SENTENCES SERVED IS
OBVIOUS.  SENTENCES FOR VIOLATIONS OF OBSCENITY STATUTES ARE OFTEN
SUSPENDED AND GENERALLY SHORT.  IF THOSE CONVICTED CANNOT OBTAIN
ULTIMATE REVIEW OF SUCH CONVICTION, MERELY BECAUSE OF THE SHORTNESS OF
THE SENTENCES AND SLOWNESS OF THE JUDICIAL PROCESS, MANY WILL CHOOSE TO
COMPLY WITH WHAT MAY BE AN INVALID STATUTE.  MANY MAY STEER WIDE AND
REFRAIN FROM SHOWING OR SELLING PROTECTED MATERIAL.  FIRST AMENDMENT
RIGHTS ARE THUS STIFLED.  IF A PRACTICE SUCH AS THIS WERE SHOWN TO
EXIST, ITS IN TERROREM EFFECT ON ALL PUBLISHERS WOULD CERTAINLY BE
SUFFICIENTLY CLEAR AS TO GIVE ANY OF THEM STANDING TO BRING AN ACTION
FOR DECLARATORY RELIEF.  ITS IN TERROREM EFFECT ON A PUBLISHER WHO HAS
ACTUALLY FELT THE HARSH IMPACT OF THE LAW IS SO OBVIOUS THAT ITS
CONTINUING DETERRENT EFFECT UPON HIM SHOULD KEEP HIS CASE FROM BECOMING
MOOT. 

IN NO. 660, APPELLANTS' FILM AND MOTION PICTURE EQUIPMENT WERE SEIZED
AT THE TIME OF THEIR ARRESTS.  THEY ARGUE THAT AT THE CONCLUSION OF
THIS PROCEEDING THEY CAN BRING AN ACTION TO RECOVER POSSESSION OF THE
FILM AND EQUIPMENT.  IF THEIR CONVICTIONS ARE ALLOWED TO STAND, ALONG
WITH THE HOLDING THAT THE FILM IS OBSCENE, THE FILM AND EQUIPMENT WILL
BE SUBJECT TO FORFEITURE.  THEY ALSO ARGUE THAT THE DEPARTMENT OF
LICENSES MAY SUSPEND THEIR MOTION PICTURE THEATER LICENSE ON THE GROUND
THAT THEY HAVE SHOWN OBSCENE PICTURES.  PERHAPS THEY COULD RELITIGATE
THE QUESTION OF THE FILM'S OBSCENITY IN SUCH PROCEEDINGS.  THAT IS, OF
COURSE, A MATTER OF STATE LAW.  BUT IF APPELLANTS ARE CORRECT, THE
CONVICTIONS MAY ENTAIL SUFFICIENT COLLATERAL CONSEQUENCES THAT
DISTINGUISH THEM FROM ST. PIERRE V. UNITED STATES, SUPRA, AND BRING
THEM WITHIN THE FISWICK AND MORGAN CASES.    THE QUESTIONS OF MOOTNESS
LOOM SO LARGE IN THE SETTING OF THE FIRST AMENDMENT THAT THEY SHOULD AT
LEAST BE BRIEFED AND ARGUED. 
..END :














TANNENBAUM V. NEW YORK 388 U.S. 439 


NO. 993.  DECIDED JUNE 12, 1967.  - 18 N.Y.2D 268, 220 N.E.2D 783,
APPEAL DISMISSED. 


TANNENBAUM V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED AS
MOOT. 

MR. JUSTICE BRENNAN WOULD REVERSE THE JUDGMENT OF THE LOWER COURT. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

I DISSENT FROM THE DISMISSAL OF THIS APPEAL AS MOOT FOR THE REASONS
STATED IN MY DISSENT IN JACOBS V. NEW YORK, ANTE, P. 431.  IN MY VIEW,
THE QUESTION PRESENTED BY THIS CASE IS EXTREMELY IMPORTANT AND REQUIRES
A DECISION ON THE MERITS BY THIS COURT.  I WOULD NOTE PROBABLE
JURISDICTION AND SET THE CASE FOR ARGUMENT. 

MR. JUSTICE DOUGLAS DISSENTS.  (SEE DISSENT SET FORTH IN JACOBS V.
NEW YORK, ANTE, AT 436.) 
..END :




KENEY V. NEW YORK 388 U.S. 440 


NO. 2.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; REVERSED. 


KENEY V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COUNTY COURT OF MONROE
COUNTY, NEW YORK. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE COUNTY COURT OF MONROE COUNTY, NEW YORK, IS REVERSED.  REDRUP V.
NEW YORK, 386 U.S. 767. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :











FRIEDMAN V. NEW YORK 388 U.S. 441 


NO. 7.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; REVERSED. 


FRIEDMAN V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE TERM OF THE
SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL
DEPARTMENT, IS REVERSED.  REDRUP V. NEW YORK, 386 U.S. 767. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :











RATNER V. CALIFORNIA 388 U.S. 442 


NO. 10.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; REVERSED. 


RATNER ET AL. V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DEPARTMENT OF THE
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
SAN MATEO, IS REVERSED.  REDRUP V. NEW YORK, 386 U.S. 767. 

THE CHIEF JUSTICE, MR. JUSTICE CLARK, AND MR. JUSTICE BRENNAN WOULD
AFFIRM. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :








COBERT V. NEW YORK 388 U.S. 443 


NO. 21.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; REVERSED. 


COBERT V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW
YORK. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE COURT OF APPEALS OF NEW YORK IS REVERSED.  REDRUP V. NEW YORK, 386
U.S. 767. 

THE CHIEF JUSTICE, MR. JUSTICE CLARK, AND MR. JUSTICE BRENNAN WOULD
AFFIRM. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :








SHEPERD V. NEW YORK 388 U.S. 444 


NO. 26.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; REVERSED. 


SHEPERD ET AL. V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE TERM OF THE
SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL
DEPARTMENT, IS REVERSED.  REDRUP V. NEW YORK, 386 U.S. 767. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK WOULD AFFIRM.  MISHKIN V. NEW
YORK, 383 U.S. 502. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :








NEW YORK CENTRAL RR. CO. V. UNITED STATES 388 U.S. 445 


NO. 58.  DECIDED JUNE 12, 1967.  - 244 F. SUPP. 955, AFFIRMED. 


NEW YORK CENTRAL RAILROAD CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTION OF AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., TO BE
ADDED AS PARTIES APPELLEE IS GRANTED. 

THE MOTION TO AFFIRM IS GRANTED AND THOSE PORTIONS OF THE JUDGMENT OF
THE DISTRICT COURT FROM WHICH APPELLANT IS APPEALING ARE AFFIRMED. 
..END :














AVANSINO V. NEW YORK 388 U.S. 446 


NO. 72.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; REVERSED. 


AVANSINO ET AL. V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE TERM OF THE
SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL
DEPARTMENT, IS REVERSED.  REDRUP V. NEW YORK, 386 U.S. 767. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK WOULD AFFIRM.  MISHKIN V. NEW
YORK, 383 U.S. 502. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS OF
MASSACHUSETTS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :








ADAY V. UNITED STATES 388 U.S. 447 


NO. 149.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; 357 F.2D 855,
REVERSED. 


ADAY ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT IS REVERSED. 
REDRUP V. NEW YORK, 386 U.S. 767. 

THE CHIEF JUSTICE AND MR. JUSTICE BRENNAN WOULD GRANT THE PETITION,
VACATE THE JUDGMENT, AND REMAND IN LIGHT OF MEMOIRS V. MASSACHUSETTS,
383 U.S. 413. 

MR. JUSTICE CLARK WOULD GRANT THE PETITION AND AFFIRM. 

MR. JUSTICE HARLAN CONCURS IN THE REVERSAL ON THE BASIS OF THE
REASONING SET FORTH IN HIS OPINIONS IN ROTH V. UNITED STATES, 354 U.S.
476, 496, AND MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478. 
..END :





CORINTH PUBLICATIONS V. WESBERRY 388 U.S. 448 


NO. 227.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; 221 GA. 704, 146
S.E.2D 764, REVERSED. 


CORINTH PUBLICATIONS, INC. V. WESBERRY ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE SUPREME COURT OF GEORGIA IS REVERSED. 

THE CHIEF JUSTICE WOULD GRANT THE PETITION AND SET THE CASE FOR ORAL
ARGUMENT. 

MR. JUSTICE CLARK WOULD GRANT THE PETITION AND AFFIRM. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS V.
MASSACHUSSETS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :







BOOKS, INC. V. UNITED STATES 388 U.S. 449 


NO. 323.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; 358 F.2D 935,
REVERSED. 


BOOKS, INC. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT IS REVERSED. 
REDRUP V. NEW YORK, 386 U.S. 767. 

THE CHIEF JUSTICE WOULD GRANT THE PETITION AND SET THE CASE FOR ORAL
ARGUMENT. 

MR. JUSTICE CLARK WOULD GRANT THE PETITION AND AFFIRM. 

MR. JUSTICE HARLAN CONCURS IN THE REVERSAL ON THE BASIS OF THE
REASONING SET FORTH IN HIS OPINIONS IN ROTH V. UNITED STATES, 354 U.S.
476, 496, AND MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478. 
..END :






ROSENBLOOM V. VIRGINIA 388 U.S. 450 


NO. 366.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; REVERSED. 


ROSENBLOOM V. VIRIGNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE SUPREME COURT OF APPEALS OF VIRGINIA IS REVERSED.  SUNSHINE BOOK
CO. V. SUMMERFIELD, 355 U.S. 372. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :











BURKARD V. NEW YORK 388 U.S. 451 


NO. 807.  DECIDED JUNE 12, 1967.* - 18 N.Y.2D 148, 219 N.E.2D 183,
APPEALS DISMISSED AND CERTIORARI DENIED. 

*TOGETHER WITH NO. 808, HABEL ET AL. V. NEW YORK, ALSO ON APPEAL FROM
THE SAME COURT. 


BURKARD ET AL. V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEALS ARE DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEALS WERE
TAKEN AS PETITIONS FOR WRITS OF CERTIORARI, CERTIORARI IS DENIED. 
..END :













COPIES OF BOOKS V. KANSAS 388 U.S. 452 


NO. 865.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; 197 KAN. 306,
416 P.2D 703, REVERSED. 


A QUANTITY OF COPIES OF BOOKS ET AL. V. KANSAS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE SUPREME COURT OF KANSAS IS REVERSED.  REDRUP V. NEW YORK, 386 U.S.
767. 

THE CHIEF JUSTICE WOULD GRANT THE PETITION AND SET THE CASE FOR ORAL
ARGUMENT IN LIGHT OF A QUANTITY OF BOOKS V. KANSAS, 378 U.S. 205. 

MR. JUSTICE CLARK WOULD GRANT THE PETITION AND AFFIRM THE JUDGMENT. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :






MAZES V. OHIO 388 U.S. 453 


NO. 896.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; 7 OHIO ST. 2D
136, 218 N.E.2D 725, REVERSED. 


MAZES V. OHIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE SUPREME COURT OF OHIO IS REVERSED.  REDRUP V. NEW YORK, 386 U.S.
767. 

THE CHIEF JUSTICE, MR. JUSTICE CLARK, AND MR. JUSTICE HARLAN WOULD
GRANT THE PETITION AND SET THE CASE FOR ORAL ARGUMENT ON THE OHIO
STATUTE. 
..END :












WHITEHOUSE TRUCKING V. UNITED STATES 388 U.S. 453 


NO. 1255.  DECIDED JUNE 12, 1967.  - 261 F. SUPP. 9, AFFIRMED. 


WHITEHOUSE TRUCKING, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THE MOTIONS OT AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SCHACKMAN V. CALIFORNIA 388 U.S. 454 


NO. 995.  DECIDED JUNE 12, 1967.  - JUDGMENTS REVERSED. 


SCHACKMAN ET AL. V. CALIFORNIA 

APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE JUDGMENTS OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS
ANGELES, ARE REVERSED.  REDRUP V. NEW YORK, 386 U.S. 767. 

THE CHIEF JUSTICE, MR. JUSTICE CLARK, AND MR. JUSTICE BRENNAN WOULD
AFFIRM THE JUDGMENTS OF THE LOWER COURT.  GINZBURG V. UNITED STATES,
383 U.S. 463. 

MR. JUSTICE HARLAN ADHERES TO THE VIEWS EXPRESSED IN HIS SEPARATE
OPINIONS IN ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MEMOIRS V.
MASSACHUSETTS, 383 U.S. 413, 455, AND ON THE BASIS OF THE REASONING SET
FORTH THEREIN WOULD AFFIRM. 
..END :









CONDUCTORS & BRAKEMEN V. UNITED STATES 388 U.S. 455 


NO. 1093.  DECIDED JUNE 12, 1967.  - 263 F. SUPP. 650, AFFIRMED. 


ORDER OF RAILWAY CONDUCTORS & BRAKEMEN ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NOTHERN DISTRICT
OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED AND THE CASE SET FOR ORAL ARGUMENT. 
..END :















LANDAU V. FORDING 388 U.S. 456 


NO. 1164.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; 245 CAL. APP.
2D 820, 54 CAL RPTR.  177, AFFIRMED. 


LANDAU V. FORDING, CHIEF OF POLICE, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, IS
AFFIRMED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE STEWART, AND MR.
JUSTICE FORTAS WOULD GRANT THE PETITION AND REVERSE. 
..END :












LUPTON MANUFACTURING V. UNITED STATES 388 U.S. 457 


NO. 1296.  DECIDED JUNE 12, 1967.  - APPEAL DISMISSED. 


LUPTON MANUFACTURING CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 
..END :


















BELL TELEPHONE V. BUREAU OF REVENUE 388 U.S. 457 


NO. 1265.  DECIDED JUNE 12, 1967.  - 78 N.M. 78, 428 P.2D 617, APPEAL
DISMISSED. 


BELL TELEPHONE LABORATORIES, INC., ET AL. V. BUREAU OF REVENUE OF NEW
MEXICO ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW MEXICO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CANTON POULTRY V. CONNER 388 U.S. 458 


NO. 1315.  DECIDED JUNE 12, 1967.  - 263 F. SUPP. 1008, VACATED AND
REMANDED. 


CANTON POULTRY, INC., ET AL. V. CONNER, COMMISSIONER OF AGRICULTURE OF
FLORIDA. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF FLORIDA. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE REMANDED TO THE DISTRICT COURT
SO THAT IT MAY ENTER A FRESH DECREE FROM WHICH A TIMELY APPEAL MAY BE
TAKEN TO THE COURT OF APPEALS.  PENNSYLVANIA PUBLIC UTILITY COMM'N V.
PENNSYLVANIA R. CO., 382 U.S. 281, 282. 
..END :













PARKS V. SIMPSON TIMBER 388 U.S. 459 


NO. 1335.  DECIDED JUNE 12, 1967.* - CERTIORARI GRANTED; 369 F.2D 324,
VACATED AND REMANDED. 

*(REPORTER'S NOTE:  THIS OPINION IS REPORTED AS AMENDED BY ORDER OF
THE COURT ENTERED OCTOBER 16, 1967, 389 U.S. 909.) 


PARKS V. SIMPSON TIMBER CO. ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
VACATED.  ALBANESE V. N.V. NEDERL.  AMERIK STOOMV.  MAATS., 382 U.S.
283.  THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT IN ORDER THAT THAT COURT MAY PASS UPON THE ISSUES IN
THIS CASE NOT COVERED BY ITS PRIOR OPINION. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
CERTIORARI SHOULD BE DENIED. 
..END :







PIERREL V. UNITED STATES COURT OF APPEALS 388 U.S. 460 


NO. 880, MISC.  DECIDED JUNE 12, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


PIERREL V. UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














SAVIO V. CALIFORNIA 388 U.S. 460 


NO. 1399.  DECIDED JUNE 12, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


SAVIO ET AL. V. CALIFORNIA. 

APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BALLES V. NEW JERSEY 388 U.S. 461 


NO. 836, MISC.  DECIDED JUNE 12, 1967.  - 47 N.J. 331, 221 A.2D 1,
APPEAL DISMISSED AND CERTIORARI DENIED. 


BALLES V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SANCHEZ V. COX, WARDEN 388 U.S. 461 


NO. 79, MISC.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; 357 F.2D
260, VACATED AND REMANDED. 


SANCHEZ V. COX, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CICUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW MEXICO FOR RECONSIDERATION IN LIGHT OF THE FACT THAT THE
TRANSCRIPT OF EVIDENCE CAN APPARENTLY NOW BE MADE AVAILABLE. 
..END :













STELLAS V. ESPERDY 388 U.S. 462 


NO. 934, MISC.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; 366 F.2D
266, VACATED AND REMANDED. 


STELLAS V. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK WITH DIRECTIONS THAT IT BE RETURNED TO THE
IMMIGRATION AND NATURALIZATION SERVICE FOR FURTHER ADMINISTRATIVE
PROCEEDINGS. 
..END :











SANDOVAL V. UTAH 388 U.S. 463 


NO. 1107, MISC.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


SANDOVAL V. UTAH. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF UTAH. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF UTAH IN LIGHT OF THE
REPRESENTATIONS OF THE ATTORNEY GENERAL THAT THE PETITIONER WAS
ENTITLED TO THE TRANSCRIPTION OF THE MECHANICAL RECORDING OF THE
JUVENILE COURT HEARING AT THE EXPENSE OF THE SALT LAKE COUNTY OR OTHER
GOVERNMENTAL ENTITY HAVING JURISDICTION. 
..END :












HADLEY V. MASSACHUSETTS 388 U.S. 464 


NO. 1179, MISC.  DECIDED JUNE 12, 1967.  - 351 MASS. 439, 222 N.E.2D
681, VACATED AND REMANDED. 


HADLEY V. MASSACHUSETTS. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE SUPREME JUDICIAL
COURT OF MASSACHUSETTS FOR FURTHER CONSIDERATION IN LIGHT OF CAMARA V.
MUNICIPAL COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, 387 U.S. 523. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART
DISSENT AND WOULD AFFIRM THE JUDGMENT FOR THE REASONS STATED IN MR.
JUSTICE CLARK'S DISSENTING OPINION IN CAMARA V. MUNICIPAL COURT OF THE
CITY AND COUNTY OF SAN FRANCISCO, 387 U.S., AT 546. 
..END :










HEMPHILL V. ILLINOIS 388 U.S. 465 


NO. 1342, MISC.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


HEMPHILL V. ILLINOIS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF ILLINOIS WITH INSTRUCTIONS TO
APPOINT COUNSEL AND HEAR THE APPEAL.  MILANI V. ILLINOIS, 386 U.S. 12. 

..END :














FOX V. OREGON 388 U.S. 466 


NO. 1421, MISC.  DECIDED JUNE 12, 1967.  - CERTIORARI GRANTED; 245 ORE. 
440, 421 P.2D 977, VACATED AND REMANDED. 


FOX V. OREGON. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF OREGON FOR FURTHER
CONSIDERATION IN LIGHT OF ANDERS V. CALIFORNIA, 386 U.S. 738. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART ARE OF
THE OPINION THAT CERTIORARI SHOULD BE DENIED. 
..END :












UDALL V. FEDERAL POWER COMMISSION 387 U.S. 428 


NO. 463.  ARGUED APRIL 11, 1967.  - DECIDED JUNE 5, 1967.* - 123 U.S.
APP. D. C. 209, 358 F.2D 840, VACATED AND REMANDED IN NO. 462, AND
REVERSED AND REMANDED IN NO. 463. 

*TOGETHER WITH NO. 462, WASHINGTON PUBLIC POWER SUPPLY SYSTEM V.
FEDERAL POWER COMMISSION ET AL., ALSO ON CERTIORARI TO THE SAME COURT,
ARGUED APRIL 11-12, 1967. 


PACIFIC NORTHWEST POWER CO. (A JOINT VENTURE OF FOUR PRIVATE POWER
COMPANIES) AND WASHINGTON PUBLIC POWER SUPPLY SYSTEM, ALLEGEDLY A
"MUNICIPALITY," APPLIED TO THE FEDERAL POWER COMMISSION (FPC) FOR
MUTUALLY EXCLUSIVE LICENSES TO CONSTRUCT HYDROELECTRIC POWER PROJECTS
AT HIGH MOUNTAIN SHEEP, ON THE SNAKE RIVER.  ON THE SNAKE-COLUMBIA
WATERWAY BETWEEN HIGH MOUNTAIN SHEEP AND THE OCEAN EIGHT HYDROELECTRIC
DAMS HAVE BEEN BUILT AND ANOTHER AUTHORIZED, ALL FEDERAL PROJECTS. 
WHENEVER, IN THE FPC'S JUDGMENT, THE DEVELOPMENT OF WATER RESOURCES FOR
PUBLIC PURPOSES SHOULD BE UNDERTAKEN BY THE UNITED STATES ITSELF, THE
FPC SHALL NOT APPROVE ANY APPLICATION FOR ANY PROJECT AFFECTING SUCH
DEVELOPMENT, BUT SHALL CAUSE TO BE MADE SUCH NECESSARY EXAMINATIONS,
REPORTS, PLANS, AND COST ESTIMATES AND "SHALL SUBMIT ITS FINDINGS TO
CONGRESS WITH SUCH RECOMMENDATIONS AS IT MAY FIND APPROPRIATE
CONCERNING SUCH DEVELOPMENT."  BEFORE A HEARING ON THE LICENSE
APPLICATIONS THE FPC ASKED FOR THE VIEWS OF THE SECRETARY OF THE
INTERIOR, WHO URGED POSTPONEMENT OF EITHER PROJECT UNTIL MEANS OF FISH
PROTECTION WERE STUDIED.  THE HEARINGS WENT FORWARD, AND AFTER THE
RECORD WAS CLOSED, THE SECRETARY WROTE THE FPC URGING IT TO RECOMMEND
TO CONGRESS THE FEDERAL CONSTRUCTION OF THE PROJECT.  THE FPC REOPENED
THE RECORD TO PERMIT THE PARTIES TO FILE SUPPLEMENTAL BRIEFS IN
RESPONSE TO THE LETTER.  THE EXAMINER THEN RECOMMENDED THAT PACIFIC
NORTHWEST RECEIVE THE LICENSE.  THE SECRETARY, AFTER ASKING FOR LEAVE
TO INTERVENE AND FILE EXCEPTIONS, FILED EXCEPTIONS AND MADE ORAL
ARGUMENT.  THE FPC IN 1964 AFFIRMED THE EXAMINER, STATING THAT "THE
RECORD SUPPORTS NO REASON WHY FEDERAL DEVELOPMENT SHOULD BE SUPERIOR,"
AND "THERE IS NO EVIDENCE IN THE RECORD PRESENTED BY THE SECRETARY TO
SUPPORT HIS POSITION."  THE SECRETARY PETITIONED FOR A REHEARING AND A
REOPENING OF THE RECORD TO PERMIT HIM TO SUPPLY THE EVIDENTIARY
DEFICIENCIES.  A REHEARING BUT NOT A REOPENING WAS GRANTED AND THE FPC
REAFFIRMED ITS DECISION.  THE COURT OF APPEALS UPHELD THE FPC'S
DECISION.  HELD: 

1.  ALTHOUGH THE ISSUE OF FEDERAL DEVELOPMENT OF WATER RESOURCES
MUST, PURSUANT TO SEC 7(B) OF THE FEDERAL POWER ACT, BE EVALUATED BY
THE FPC IN CONNECTION WITH ITS CONSIDERATION OF THE ISSUANCE OF ANY
LICENSE FOR A HYDROELECTRIC PROJECT, THE ISSUE HAS NOT BEEN EXPLORED IN
THE RECORD HEREIN.  PP. 434-450. 

(A)  THE APPLICANTS INTRODUCED NO EVIDENCE ADDRESSED TO THE ISSUE AND
THE FPC BY ITS RULINGS ON THE SECRETARY'S APPLICATIONS TO INTERVENE AND
REOPEN PRECLUDED ITSELF FROM HAVING THE INFORMED JUDGMENT THAT SEC 7(B)
COMMANDS.  P. 434. 

(B)  IF ANOTHER DAM IS TO BE BUILT, THE QUESTION WHETHER IT SHOULD BE
UNDER FEDERAL AUSPICES LOOMS LARGE, IN VIEW OF THE NUMBER OF FEDERAL
PROJECTS ON THE SNAKE-COLUMBIA WATERWAY AND THE EFFECT OF THE OPERATION
OF A NEW DAM ON THE VAST RIVER COMPLEX.  PP. 434-435. 

(C)  UNDER SEC 10(A) OF THE ACT THE FPC MUST PROTECT "RECREATIONAL
PURPOSES," AND BY SEC 2 OF THE 1965 ANADROMOUS FISH ACT THE SECRETARY
COMES BEFORE THE FPC WITH A SPECIAL MANDATE TO APPEAR, INTERVENE, AND
INTRODUCE EVIDENCE ON THE PROPOSED RIVER DEVELOPMENT PROGRAM, AND TO
PARTICIPATE FULLY IN THE ADMINISTRATIVE PROCEEDINGS.  PP. 436-440. 

(D)  THE WILDLIFE CONSERVATION ASPECT OF THE PROJECT MUST BE EXPLORED
AND EVALUATED.  PP. 443-444. 

(E)  THE URGENCY OF THE HYDROELECTRIC POWER PROJECT, DISCOUNTED BY
THE SECRETARY, WAS NOT FULLY EXPLORED, ESPECIALLY IN VIEW OF THE
PROBABLE FUTURE DEVELOPMENT OF OTHER ENERGY SOURCES.  PP. 444-448. 

(F)  THE DETERMINATIVE TEST IS WHETHER THE PROJECT WILL BE IN THE
PUBLIC INTEREST, AND THAT DETERMINATION CAN BE MADE ONLY AFTER AN
EXPLORATION OF ALL RELEVANT ISSUES.  P. 450. 

2.  NO OPINION IS EXPRESSED ON THE CONTENTION OF WASHINGTON PUBLIC
POWER SUPPLY SYSTEM THAT IT IS A "MUNICIPALITY" WITHIN THE MEANING OF
SEC 7(A) OF THE FEDERAL POWER ACT AND ENTITLED TO A STATUTORY
PREFERENCE, AN ISSUE WHICH MAY OR MAY NOT SURVIVE THE REMAND.  PP. 450
451. 

UDALL, SECRETARY OF THE INTERIOR V. FEDERAL POWER COMMISSION ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL POWER COMMISSION HAS AWARDED PACIFIC NORTHWEST POWER
COMPANY (A JOINT VENTURE OF FOUR PRIVATE POWER COMPANIES) A LICENSE TO
CONSTRUCT A HYDROELECTRIC POWER PROJECT AT HIGH MOUNTAIN SHEEP, A SITE
ON THE SNAKE RIVER, A MILE UPSTREAM FROM ITS CONFLUENCE WITH THE
SALMON.  31 F.P.C. 247, 1051.  THE COURT OF APPEALS APPROVED THE
ACTION, 123 U.S. APP. D.C. 209, 358 F.2D 840; AND WE GRANTED THE
PETITIONS FOR CERTIORARI.  385 U.S. 926, 927. 

THE PRIMARY QUESTION IN THE CASES INVOLVES AN INTERPRETATION OF SEC
7(B) OF THE FEDERAL WATER POWER ACT OF 1920, AS AMENDED BY THE FEDERAL
POWER ACT, 49 STAT. 842, 16 U.S.C. SEC 800(B), WHICH 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." 

THE QUESTION TURNS ON WHETHER SEC 7(B) REQUIRES A SHOWING THAT
LICENSING OF A PRIVATE, STATE, OR MUNICIPAL AGENCY  (FN1) IS A
SATISFACTORY ALTERNATIVE TO FEDERAL DEVELOPMENT.  WE PUT THE QUESTION
THAT WAY BECAUSE THE PRESENT RECORD IS LARGELY SILENT ON THE RELATIVE
MERITS OF FEDERAL AND NON-FEDERAL DEVELOPMENT.  WHAT TRANSPIRED IS AS
FOLLOWS: 

BOTH PACIFIC NORTHWEST AND WASHINGTON PUBLIC POWER SUPPLY SYSTEM,
ALLEGEDLY A "MUNICIPALITY" UNDER SEC 4(E) AND UNDER SEC 7(A) OF THE
ACT, (FN2) FILED APPLICATIONS FOR LICENSES ON MUTUALLY EXCLUSIVE SITES;
AND THEY WERE CONSOLIDATED FOR HEARING.  BEFORE THE HEARING THE
COMMISSION SOLICITED THE VIEWS OF THE SECRETARY OF THE INTERIOR.  THE
SECRETARY URGED POSTPONEMENT OF THE LICENSING OF EITHER PROJECT WHILE
MEANS OF PROTECTING THE SALMON AND OTHER FISHERIES WERE STUDIED.  THAT
WAS ON MARCH 15, 1961.  BUT THE HEARINGS WENT FORWARD AND ON JUNE 28,
1962, AFTER THE RECORD BEFORE THE EXAMINER WAS CLOSED, BUT BEFORE HE
RENDERED HIS DECISION, THE SECRETARY WROTE THE COMMISSION URGING IT TO
RECOMMEND TO CONGRESS THE CONSIDERATION OF FEDERAL CONSTRUCTION OF HIGH
MOUNTAIN SHEEP.  THE COMMISSION REOPENED THE RECORD TO ALLOW THE
SECRETARY'S LETTER TO BE INCORPORATED AND INVITED THE PARTIES TO FILE
SUPPLEMENTAL BRIEFS IN RESPONSE TO IT.  ON OCTOBER 8, 1962, THE
EXAMINER RENDERED HIS DECISION, RECOMMENDING THAT PACIFIC NORTHWEST
RECEIVE THE LICENSE.  HE DISPOSED OF THE ISSUE OF FEDERAL DEVELOPMENT
ON THE GROUND THAT THERE "IS NO EVIDENCE IN THIS RECORD THAT FEDERAL
DEVELOPMENT WILL PROVIDE GREATER FLOOD CONTROL, POWER BENEFITS, FISH
PASSAGE, NAVIGATION OR RECREATION; AND THERE IS SUBSTANTIAL EVIDENCE TO
THE CONTRARY." 

THE SECRETARY ASKED FOR LEAVE TO INTERVENE AND TO FILE EXCEPTIONS TO
THE EXAMINER'S DECISION.  (FN3)  THE COMMISSION ALLOWED INTERVENTION
"LIMITED TO FILING OF EXCEPTIONS TO THE PRESIDING EXAMINER'S DECISION
AND PARTICIPATION IN SUCH ORAL ARGUMENT AS MIGHT SUBSEQUENTLY BE
ORDERED." 

THE SECRETARY FILED EXCEPTIONS AND PARTICIPATED IN ORAL ARGUMENT. 
THE COMMISSION ON FEBRUARY 5, 1964, AFFIRMED THE EXAMINER SAYING THAT
IT AGREED WITH HIM "THAT THE RECORD SUPPORTS NO REASON WHY FEDERAL
DEVELOPMENT SHOULD BE SUPERIOR," OBSERVING THAT "WHILE WE HAVE
EXTENSIVE MATERIAL BEFORE US ON THE POSITION OF THE SECRETARY OF THE
INTERIOR, THERE IS NO EVIDENCE IN THE RECORD PRESENTED BY HIM TO
SUPPORT HIS POSITION."  31 F.P.C., AT 275. 

IT WENT ON TO SAY THAT IT FOUND "NOTHING IN THIS RECORD TO INDICATE"
THAT THE PUBLIC PURPOSES OF THE DAM (FLOOD CONTROL, ETC.) WOULD NOT BE
SERVED AS ADEQUATELY BY PACIFIC NORTHWEST AS THEY WOULD UNDER FEDERAL
DEVELOPMENT.  AND IT ADDED, "WE AGREE THAT THE SECRETARY (OR ANY SINGLE
OPERATOR) NORMALLY WOULD HAVE A SUPERIOR ABILITY TO CO-ORDINATE THE
OPERATIONS OF HMS WITH THE OTHER AFFECTED PROJECTS ON THE RIVER.  BUT
THERE IS NO EVIDENCE UPON WHICH WE CAN DETERMINE THE SCOPE OR THE
SERIOUSNESS OF THIS MATTER IN THE CONTEXT OF A RIVER SYSTEM WHICH
ALREADY HAS A NUMBER OF DIFFERENT PROJECT OPERATORS AND AN EXISTING CO
ORDINATION SYSTEM, I.E., THE NORTHWEST POWER POOL."  ID., AT 276-277. 

THE SECRETARY PETITIONED FOR A REHEARING, ASKING THAT THE RECORD BE
OPENED TO PERMIT HIM TO SUPPLY THE EVIDENTIARY DEFICIENCIES.  A
REHEARING, BUT NOT A REOPENING OF THE RECORD, WAS GRANTED; AND THE
COMMISSION SHORTLY REAFFIRMED ITS ORIGINAL DECISION WITH MODIFICATIONS
NOT MATERIAL HERE. 

THE ISSUE OF FEDERAL DEVELOPMENT HAS NEVER BEEN EXPLORED IN THIS
RECORD.  THE APPLICANTS INTRODUCED NO EVIDENCE ADDRESSED TO THAT
QUESTION; AND THE COMMISSION DENIED THE SECRETARY AN OPPORTUNITY TO DO
SO THOUGH HIS APPLICATION WAS TIMELY.  THE ISSUE WAS OF COURSE BRIEFED
AND ARGUED; YET NO FACTUAL INQUIRY WAS UNDERTAKEN.  SECTION 7(B) SAYS
"WHENEVER, IN THE JUDGMENT OF THE COMMISSION, THE DEVELOPMENT OF ANY
WATER RESOURCES FOR PUBLIC PURPOSES SHOULD BE UNDERTAKEN BY THE UNITED
STATES ITSELF," THE COMMISSION SHALL NOT APPROVE OTHER APPLICATIONS. 
YET THE COMMISSION BY ITS RULINGS ON THE APPLICATIONS OF THE SECRETARY
TO INTERVENE AND TO REOPEN PRECLUDED IT FROM HAVING THE INFORMED
JUDGMENT THAT SEC 7(B) COMMANDS. 

WE INDICATE NO JUDGMENT ON THE MERITS.  WE DO KNOW THAT ON THE SNAKE
COLUMBIA WATERWAY BETWEEN HIGH MOUNTAIN SHEEP AND THE OCEAN, EIGHT
HYDROELECTRIC DAMS HAVE BEEN BUILT AND ANOTHER AUTHORIZED.  THESE ARE
FEDERAL PROJECTS; AND IF ANOTHER DAM IS TO BE BUILT, THE QUESTION
WHETHER IT SHOULD BE UNDER FEDERAL AUSPICES LOOMS LARGE.  TIMED
RELEASES OF STORED WATER AT HIGH MOUNTAIN SHEEP MAY AFFECT
NAVIGABILITY; THEY MAY AFFECT HYDROELECTRIC PRODUCTION OF THE
DOWNSTREAM DAMS WHEN THE RIVER LEVEL IS TOO LOW FOR THE GENERATORS TO
BE OPERATED AT MAXIMUM CAPACITY; THEY MAY AFFECT IRRIGATION; AND THEY
MAY PROTECT SALMON RUNS WHEN THE WATER DOWNSTREAM IS TOO HOT OR
INSUFFICIENTLY OXYGENATED.  FEDERAL VERSUS PRIVATE OR MUNICIPAL CONTROL
MAY CONCEIVABLY MAKE A VAST DIFFERENCE IN THE FUNCTIONING OF THE VAST
RIVER COMPLEX.  (FN4) 

BEYOND THAT IS THE QUESTION WHETHER ANY DAM SHOULD BE CONSTRUCTED. 

AS TO THIS THE SECRETARY IN HIS LETTER TO THE COMMISSION DATED
NOVEMBER 21, 1960, IN PLEADING FOR A DEFERMENT OF CONSIDERATION OF
APPLICATIONS STATED: 

"IN CARRYING OUT THIS DEPARTMENT'S RESPONSIBILITY FOR THE PROTECTION
AND CONSERVATION OF THE VITAL NORTHWEST ANADROMOUS FISHERY RESOURCE AND
IN LIGHT OF THE FACT THAT THE POWER TO BE AVAILABLE AS A RESULT OF
RATIFICATION OF THE PROPOSED COLUMBIA RIVER TREATY WITH CANADA WILL
PROVIDE NEEDED TIME WHICH CAN BE DEVOTED TO FURTHER EFFORTS TO RESOLVE
THE FISHERY PROBLEMS PRESENTLY POSED BY THESE APPLICATIONS, WE BELIEVE
THAT IT IS UNNECESSARY AT THIS TIME AND FOR SOME YEARS TO COME TO
UNDERTAKE ANY PROJECT IN THIS AREA. 

"YOU MAY BE ASSURED THAT THE FISH AND WILDLIFE SERVICE OF THIS
DEPARTMENT WILL CONTINUE, WITH RENEWED EMPHASIS, THE ENGINEERING AND
RESEARCH STUDIES THAT MUST BE DONE BEFORE WE CAN BE ASSURED THAT THE
PASSAGE OF ANADROMOUS FISH CAN BE PROVIDED FOR AT THESE PROPOSED
PROJECTS." 

SINCE THE CASES MUST BE REMANDED TO THE COMMISSION, IT IS APPROPRIATE
TO REFER TO THAT ASPECT OF THE CASES. 

SHALL BE SUCH "AS IN THE JUDGMENT OF THE COMMISSION WILL BE BEST
ADAPTED TO A COMPREHENSIVE PLAN FOR IMPROVING OR DEVELOPING A WATERWAY
...  AND FOR OTHER BENEFICIAL PUBLIC USES, INCLUDING RECREATIONAL
PURPOSES." 

THE OBJECTIVE OF PROTECTING "RECREATIONAL PURPOSES" MEANS MORE THAN
THAT THE RESERVOIR CREATED BY THE DAM WILL BE THE BEST ONE POSSIBLE OR
PRACTICAL FROM A RECREATIONAL VIEWPOINT.  THERE ARE ALREADY EIGHT LOWER
DAMS ON THIS COLUMBIA RIVER SYSTEM AND A NINTH ONE AUTHORIZED; AND IF
THE SECRETARY IS RIGHT IN FEARING THAT THIS ADDITIONAL DAM WOULD
DESTROY THE WATERWAY AS SPAWNING GROUNDS FOR ANADROMOUS FISH (SALMON
AND STEELHEAD) OR SERIOUSLY IMPAIR THAT FUNCTION, THE PROJECT IS PUT IN
AN ENTIRELY DIFFERENT LIGHT.  THE IMPORTANCE OF SALMON AND STEELHEAD IN
OUR OUTDOOR LIFE AS WELL AS IN COMMERCE  (FN6) IS SO GREAT THAT THERE
CERTAINLY COMES A TIME WHEN THEIR DESTRUCTION MIGHT NECESSITATE A HALT
IN SO-CALLED "IMPROVEMENT" OR "DEVELOPMENT" OF WATERWAYS.  THE
DESTRUCTION OF ANADROMOUS FISH IN OUR WESTERN WATERS IS SO NOTORIOUS
(FN7) THAT WE CANNOT BELIEVE THAT CONGRESS THROUGH THE PRESENT ACT
AUTHORIZED THEIR ULTIMATE DEMISE. 

WE NEED NOT SPECULATE AS TO WHAT THE 1920 PURPOSE MAY HAVE BEEN.  FOR
THE 1965 ANADROMOUS FISH ACT, 79 STAT. 1125, 16 U.S.C. SECS 757A-757F
(1964 ED., SUPP. II), IS ON THIS ASPECT OF THE PRESENT CASE IN PARI
MATERIA WITH THE 1920 ACT.  WE KNOW FROM SEC 1 OF THE 1965 ACT THAT
CONGRESS IS GREATLY CONCERNED WITH THE DEPLETION OF THESE FISH
RESOURCES "FROM WATER RESOURCES DEVELOPMENTS AND OTHER CAUSES."  SEE
ALSO H.R. REP. NO. 1007, 89TH CONG., 1ST SESS., PP. 2-5; S. REP. NO.
860, 89TH CONG., 1ST SESS; ANADROMOUS FISH, HEARINGS BEFORE THE
SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION OF THE HOUSE
COMMITTEE ON MERCHANT MARINE AND FISHERIES, 89TH CONG., 1ST SESS., 133;
ANADROMOUS FISH, HEARINGS BEFORE THE SUBCOMMITTEE ON FISHERIES AND
WILDLIFE CONSERVATION OF THE HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES, 88TH CONG., 2D SESS., 11.  THE RAPID DEPLETION OF THE
NATION'S ANADROMOUS FISH RESOURCES LED CONGRESS TO ENACT THE ANADROMOUS
FISH ACT WHICH AUTHORIZES FEDERAL-STATE COOPERATION FOR THE
CONSERVATION, DEVELOPMENT, AND ENHANCEMENT OF THE NATION'S ANADROMOUS
FISH RESOURCES AND TO PREVENT THEIR DEPLETION FROM VARIOUS CAUSES
INCLUDING WATER RESOURCES DEVELOPMENT.  IN PASSING THE ACT, CONGRESS
WAS WELL AWARE THAT THE RESPONSIBILITY FOR THE DESTRUCTION OF THE
ANADROMOUS FISH POPULATION PARTIALLY LIES WITH THE "IMPROVEMENT" AND
"DEVELOPMENT" OF WATER RESOURCES.  IT DIRECTED THE SECRETARY OF THE
INTERIOR "TO CONDUCT SUCH STUDIES AND MAKE SUCH RECOMMENDATIONS AS THE
SECRETARY DETERMINES TO BE APPROPRIATE REGARDING THE DEVELOPMENT AND
MANAGEMENT OF ANY STREAM OR OTHER BODY OF WATER FOR THE CONSERVATION
AND ENHANCEMENT OF ANADROMOUS FISHERY RESOURCES."  SEC 2. 

MR. JUSTICE HOLMES ONCE WROTE THAT "A RIVER IS MORE THAN AN AMENITY,
IT IS A TREASURE."  (FN8) NEW JERSEY V. NEW YORK, 283 U.S. 336, 342. 
THAT DICTUM IS RELEVANT HERE FOR THE COMMISSION UNDER SEC 10 OF THE
1920 ACT, AS AMENDED, MUST TAKE INTO CONSIDERATION NOT ONLY
HYDROELECTRIC POWER, NAVIGATION, AND FLOOD CONTROL, BUT ALSO THE
"RECREATIONAL PURPOSES" SERVED BY THE RIVER.  AND, AS WE HAVE NOTED,
THE SECRETARY OF THE INTERIOR HAS A MANDATE UNDER THE 1965 ACT TO STUDY
RECOMMENDATIONS CONCERNING WATER DEVELOPMENT PROGRAMS FOR THE PURPOSE
OF THE CONSERVATION OF ANADROMOUS FISH.  THUS APART FROM SEC 7(B) OF
THE 1920 ACT, AS AMENDED, THE SECRETARY BY REASON OF SEC 2 OF THE 1965
ACT COMES TO THE FEDERAL POWER COMMISSION WITH A SPECIAL MANDATE FROM
CONGRESS, A MANDATE THAT GIVES HIM SPECIAL STANDING TO APPEAR, TO
INTERVENE, TO INTRODUCE EVIDENCE ON THE PROPOSED RIVER DEVELOPMENT
PROGRAM, AND TO PARTICIPATE FULLY IN THE ADMINISTRATIVE PROCEEDINGS. 

FISHING IS OBVIOUSLY ONE RECREATIONAL USE OF THE RIVER AND IT ALSO
HAS VAST COMMERCIAL IMPLICATIONS AS THE LEGISLATIVE HISTORY OF THE 1965
ACT INDICATES.  THE COMMISSION, TO BE SURE, DID NOT WHOLLY NEGLECT THIS
PHASE OF THE PROBLEM.  IN ITS REPORT IT ADVERTED TO THE ANADROMOUS FISH
PROBLEM, STATING THAT IT WAS "HIGHLY CONTROVERSIAL" AND WAS NOT
"CLEARLY RESOLVED ON RECORD."  THE RESERVOIR IS "THE MOST IMPORTANT
HAZARD" BOTH TO UPSTREAM MIGRANTS AND DOWNSTREAM MIGRANTS.  UPSTREAM
MIGRANTS CAN BE HANDLED QUITE EFFECTIVELY BY FISH LADDERS.  BUT THOSE
TRAVELING DOWNSTREAM MUST GO THROUGH THE TURBINES; AND THEIR MORTALITY
IS HIGH.  MOREOVER, CHINOOK SALMON ARE "BASICALLY RIVER FISH AND DO NOT
APPEAR TO ADAPT TO THE DIFFERENT CONDITIONS PRESENTED BY A RESERVOIR." 
31 F.P.C., AT 260.  THE ECOLOGY OF A RIVER IS DIFFERENT FROM THE
ECOLOGY OF A RESERVOIR BUILT BEHIND A DAM.  WHAT THE FULL EFFECT ON
SALMON WILL BE IS NOT KNOWN.  BUT WE GET A GLIMMERING FROM THE
COMMISSION'S REPORT.  AS TO THIS THE COMMISSION SAID: 

"A RESERVOIR EXHIBITS A PECULIAR THERMAL STRUCTURE.  DURING THE
WINTER IT IS HOMOGENEOUS WITH REGARD TO TEMPERATURE, BUT AS THE SEASON
ADVANCES A HORIZONTAL STRATIFICATION RESULTS WITH THE COLDER WATER
SINKING LOWER.  SINCE SALMON RIVER WATER IS COLDER THAN SNAKE RIVER
WATER, IT IS POSSIBLE, IF NOT PROBABLE, THAT IN THE NEZ PERCE RESERVOIR
THE WATER FROM THE TWO RIVERS WOULD BE FOUND IN SEPARATE LAYERS AND BE
DRAWN OFF AT DIFFERENT TIMES.  PRESUMABLY THE UPSTREAM MIGRANTS
REACHING FISH LADDERS MIGHT AT ONE TIME BE PRESENTED WITH WATER FROM
ONE RIVER AND AT ANOTHER TIME WATER FROM THE OTHER RIVER.  IF WATER
QUALITY IS IMPORTANT IN ATTRACTING THE UPSTREAM MIGRANTS TO THEIR
PROPER STREAMS, AS MANY EXPERTS BELIEVE, THIS STRATIFICATION WOULD BE A
SOURCE OF CONFUSION AND DELAY.  ALSO A SOURCE OF CONFUSION TO THE
UPSTREAM MIGRANTS WOULD BE THE PREDICTED TENDENCY SHOWN BY THE RECORD
FOR WATER FROM THE SALMON RIVER ARM OF THE NEZ PERCE RESERVOIR TO FLOW
UP THE SNAKE RIVER ARM AND VICE VERSA.  AGAIN THE FISH ARE FACED WITH A
COMPLICATED PROBLEM IN FINDING THEIR WAY.    "THE VELOCITY OF FLOW IN
THE NEZ PERCE OR HMS RESERVOIR WOULD BE VERY LOW COMPARED WITH THE FREE
FLOWING STREAM OR EVEN COMPARED TO THE FLOW IN THE RESERVOIR OF THE
MCNARY DAM ON THE COLUMBIA.  SINCE THE UPSTREAM MIGRANTS FOLLOW WATER
FLOW AND DOWNSTREAM MIGRANTS ARE CARRIED BY CURRENT, SUCH LOW
VELOCITIES OFFER A FURTHER OBSTACLE TO THE PASSAGE OF ANADROMOUS FISH. 
"THE RECORD ALSO SHOWS THAT DURING THE SUMMER MONTHS THE OXYGEN
CONTENT OF THE WATER IN THE RESERVOIR AT THE LOWER LEVELS WILL FALL TO
AMOUNTS WHICH ARE DANGEROUSLY INSUFFICIENT FOR SALMON.  THE DECREASE IN
OXYGEN CONTENT APPEARS TO BE DUE TO DECOMPOSED SINKING DEAD ORGANISMS
(PLANKTON) FROM THE UPPER LAYERS OF WATER.  THE RECORD INDICATES THAT
SALMON REQUIRE AN OXYGEN CONTENT OF APPROXIMATELY FIVE PARTS PER
MILLION, YET THE OXYGEN CONTENT AT THE 250-350 FOOT LEVEL WOULD FALL IN
AUGUST TO LESS THAN THREE PARTS PER MILLION."  31 F.P.C., AT 261. 

THE COMMISSION FURTHER NOTED THAT SOME SALMON REMAIN IN THE RESERVOIR
DUE TO "LOSS OF WATER VELOCITY OR ACCUMULATION OF DISSOLVED SALTS" AND
ARE LOST "AS PERPETUATORS OF THE SPECIES."  BUT IT DID NOT HAVE
STATISTICS SHOWING THE LOSS OF THE DOWNSTREAM MIGRANTS AS A RESULT OF
PASSING THROUGH THE TURBINES.  WE ARE TOLD FROM STUDIES OF THE BUREAU
OF COMMERCIAL FISHERIES THAT THE GREATEST DOWNSTREAM MIGRATION OCCURS
AT NIGHT WHEN TURBINE LOADS ARE LOWER.  (FN9)  WE ARE TOLD FROM THESE
STUDIES THAT THE EFFECT OF DAMS ON THE DOWNSTREAM MIGRATION OF SALMON
AND STEELHEAD MAY BE DISASTROUS.  (FN10)  IT IS REPORTED THAT UNLESS
PRACTICAL ALTERNATIVES ARE DESIGNED, SUCH AS THE COLLECTION OF JUVENILE
FISH ABOVE THE DAMS AND THEIR TRANSPORTATION BELOW IT, WE MAY WITNESS
AN INQUEST ON A GREAT INDUSTRY AND A GREAT "RECREATIONAL" ASSET OF THE
NATION. 

IN HIS LETTER OF NOVEMBER 21, 1960, THE SECRETARY OF THE INTERIOR
NOTED THE ADVERSE EFFECTS THIS PRESENT PROJECT WOULD HAVE ON ANADROMOUS
FISH, THAT THE FACILITIES PROPOSED TO PROTECT THE FISH WERE "UNPROVED,"
AND THAT "CONSERVATION IN THE FULLEST SENSE CALLS FOR A DEFERRAL WHILE
FULL ADVANTAGE IS TAKEN OF THE OPPORTUNITY PRESENTED BY CANADIAN
STORAGE AND LIBBY DAM."  THE COMMISSION ADMITTED THAT "HIGH DAMS AND
RESERVOIRS PRESENT MAJOR OBSTACLES TO ANADROMOUS FISH," THAT IT WAS NOT
OPTIMISTIC "AS TO THE EFFICACY OF FISH PASSAGE FACILITIES ON HIGH
DAMS," AND CONCLUDED WITH THE FORLORN STATEMENT THAT, "WE CAN HOPE FOR
THE BEST AND WE WILL CONTINUE TO INSIST THAT ANY LICENSEE BUILDING A
HIGH DAM AT A SITE WHICH PRESUMABLY INVOLVES MAJOR FISH RUNS DO
EVERYTHING POSSIBLE WITHIN THE LIMITS OF REASONABLE EXPENSE TO PRESERVE
THE FISH RUNS.  BUT AS OF NOW WE UNDERSTANDABLY MUST ASSUME THAT THE
BEST EFFORTS WILL BE ONLY PARTLY SUCCESSFUL AND THAT REAL DAMAGE MAY
AND PROBABLY WILL BE DONE TO ANY SUCH FISH RUNS."  31 F.P.C., AT 262. 

EQUALLY RELEVANT IS THE EFFECT OF THE PROJECT ON WILDLIFE.  IN HIS
LETTER OF NOVEMBER 21, 1960, THE SECRETARY OF THE INTERIOR NOTED THAT
THE AREAS OF THE PROPOSED PROJECTS WERE IMPORTANT WILDLIFE SANCTUARIES,
INHABITED BY ELK, DEER, PARTRIDGE, A VARIETY OF SMALL GAME AND USED BY
DUCKS, GEESE, AND MOURNING DOVES DURING MIGRATION.  HE CONCLUDED THAT
"ADVERSE EFFECTS OF THE PROPOSED PROJECT (HMS) ON WILDLIFE COULD NOT BE
MITIGATED."  LETTER OF NOVEMBER 21, 1960 (JOINT APP. 133), AS CORRECTED
BY LETTER OF DECEMBER 7, 1960 (J.A. 137).  THE SECRETARY CONCLUDED THAT
"SEVERAL THOUSAND ACRES OF MULE DEER RANGE WOULD BE INUNDATED AND THERE
WOULD BE A MODERATE REDUCTION IN THE NUMBER OF DEER AS A RESULT OF LOSS
OF RANGE.  THERE WOULD BE LOSSES OF UPLAND GAME, FUR ANIMALS, AND
WATERFOWL.  RESERVOIR MARGINS WOULD BE BARREN AND UNATTRACTIVE TO ALL
WILDLIFE GROUPS.  WATERFOWL USE OF THE RESERVOIR WOULD BE
INSIGNIFICANT.  THERE DOES NOT APPEAR TO BE ANY FEASIBLE MEANS OF
MITIGATING WILDLIFE LOSSES." 

THE FISH AND WILDLIFE COORDINATION ACT, 48 STAT. 401, AS AMENDED, 72
STAT. 563, 16 U.S.C. SEC 661 ET SEQ., ESTABLISHES A NATIONAL POLICY OF
"RECOGNIZING THE VITAL CONTRIBUTION OF OUR WILDLIFE RESOURCES TO THE
NATION, THE INCREASING PUBLIC INTEREST AND SIGNIFICANCE THEREOF DUE TO
EXPANSION OF OUR NATIONAL ECONOMY AND OTHER FACTORS, AND TO PROVIDE
THAT WILDLIFE CONSERVATION SHALL RECEIVE EQUAL CONSIDERATION AND BE CO
ORDINATED WITH OTHER FEATURES OF WATER-RESOURCE DEVELOPMENT PROGRAMS
...  ."  SECTION 2(A), 16 U.S.C. SEC 662(A), PROVIDES THAT AN AGENCY
EVALUATING A LICENSE UNDER WHICH "THE WATERS OF ANY STREAM OR OTHER
BODY OF WATER ARE PROPOSED ...  TO BE IMPOUNDED" "FIRST SHALL CONSULT
WITH THE UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE
INTERIOR  ... WITH A VIEW TO THE CONSERVATION OF WILDLIFE RESOURCES BY
PREVENTING LOSS OF AND DAMAGE TO SUCH RESOURCES  ...  ."  CERTAINLY THE
WILDLIFE CONSERVATION ASPECT OF THE PROJECT MUST BE EXPLORED AND
EVALUATED. 

THESE FACTORS OF THE ANADROMOUS FISH AND OF OTHER WILDLIFE MAY INDEED
BE ALL-IMPORTANT IN LIGHT OF THE ALTERNATE SOURCES OF ENERGY THAT ARE
EMERGING. 

IN HIS LETTER OF NOVEMBER 21, 1960, THE SECRETARY NOTED THAT, DUE TO
INCREASED POWER RESOURCES, THE PROJECTS COULD BE SAFELY DEFERRED. 
"THESE PROJECTS COULD EXTEND THE TIME STILL FURTHER, AS COULD ALSO BE
THE CASE IN THE EVENT NUCLEAR POWER MATERIALIZED AT HANFORD IN THE 1960
1970 PERIOD.  THIS POSSIBILITY, AS YOU KNOW, HAS BEEN UNDER INTENSIVE
STUDY BY YOUR STAFF FOR THE ATOMIC ENERGY COMMISSION  ...  ." 

THE URGENCY OF THE HYDROELECTRIC POWER AT HIGH MOUNTAIN SHEEP WAS
SOMEWHAT DISCOUNTED BY THE SECRETARY IN HIS PETITION TO INTERVENE: 

"POWER NEEDS OF THE NORTHWEST DO NOT REQUIRE IMMEDIATE CONSTRUCTION
OF THE HIGH MOUNTAIN SHEEP PROJECT.  ONE OF THE REASONS WHICH LEADS THE
SECRETARY TO INTERVENE NOW IS THAT THE EXAMINER'S DECISION OF OCTOBER
10, 1962, WAS HANDED DOWN JUST PRIOR TO CONGRESSIONAL ACTION WHICH
SUBSTANTIALLY ALTERED THE FEDERAL POWER RESOURCE PROGRAM OF THE PACIFIC
NORTHWEST.  THIS CONGRESSIONAL ACTION REQUIRES A COMPLETE RE
EXAMINATION AND RE-APPRAISEMENT OF THE CONCLUSIONS STATED AS THE BASIS
FOR THE EXAMINER'S FINDINGS. 

"THE ACTION OF CONGRESS IN THE SESSION JUST CONCLUDED HAS MADE
PROVISIONS FOR NEW FEDERAL POWER PRODUCING FACILITIES.  BRUCES EDDY
DAM, WITH A PEAK CAPACITY OF 345,000 KW, WAS AUTHORIZED AND RECEIVED AN
APPROPRIATION FOR THE START OF CONSTRUCTION IN FISCAL YEAR 1963. 
ASOTIN DAM, WITH A PEAK CAPACITY OF 331,000 KW, WAS ALSO AUTHORIZED. 
LITTLE GOOSE DAM, WITH A PEAK CAPACITY OF 466,000 KW, WHICH HAD
PREVIOUSLY BEEN AUTHORIZED, RECEIVED AN APPROPRIATION FOR THE START OF
CONSTRUCTION IN 1963.  MOST IMPORTANT OF ALL, GENERATION AT THE HANFORD
THERMAL PROJECT, WHICH WOULD ADD APPROXIMATELY 905,000 KILOWATTS TO THE
NORTHWEST'S POWER RESOURCES WAS ALSO APPROVED. 

"THERE ARE OTHER POSSIBILITIES REGARDING NEW POWER SOURCES WHICH HAVE
REASONABLE PROSPECTS OF REALIZATION.  THEY INCLUDE CANADIAN STORAGE,
REALIZATION OF WHICH IS DEPENDENT UPON CONSUMMATION OF THE CANADIAN
TREATY.  ADDITIONAL FIRM CAPACITY WHICH WOULD ACCRUE TO THE UNITED
STATES FROM SUCH STORAGE WOULD BE 1,300,000 KILOWATTS.  IN ADDITION,
THE TREATY WOULD ALLOW THE CONSTRUCTION OF LIBBY DAM WHICH WOULD
INITIALLY HAVE A CAPACITY OF 397,000 KILOWATTS.  THERE IS ALSO THE
POSSIBILITY OF THE AVAILABILITY IN THE UNITED STATES OF POWER FROM THE
CANADIAN ENTITLEMENT UNDER THE TREATY OF 1,300,000 KILOWATTS.  PLANS
ARE ALSO UNDER WAY FOR CONSTRUCTION OF A 500,000 KILOWATT STEAM PLANT
BY KITTITAS PUD AND GRANT COUNTY PUD.  A NUMBER OF DIFFERENT AGENCIES
HAVE PROPOSED THE CONSTRUCTION OF THE PACIFIC NORTHWEST-SOUTHWEST
TRANSMISSION INTERTIE WHICH, BY ELECTRICAL INTEGRATION, WOULD ADD AN
ADDITIONAL 400,000 KILOWATTS OF FIRM CAPACITY FOR THE PACIFIC
NORTHWEST. 

"THE TOTAL POWER RESOURCE OF THE AREA IS THEREFORE PREDICTABLY IN
EXCESS OF ALL FORESEEABLE REQUIREMENTS THEREON FOR THE PERIOD THROUGH
1968-1969 AND SUFFICIENT TO MEET ALL REQUIREMENTS UNTIL AT LEAST 1972
1973 AND POTENTIALLY FOR YEARS BEYOND THAT DATE.  THE ADDITION OF HIGH
MOUNTAIN SHEEP DAM WILL NOT BE NEEDED UNTIL AT LEAST 1972-1973, AND
CONSTRUCTION SHOULD BE PLANNED TO BRING IT INTO PRODUCTION AT THAT TIME
OR LATER AS THE DEVELOPING POWER RESOURCE PICTURE INDICATES. 

"NEW GENERATING FACILITIES, WHICH ARE NOT CORRELATED TO THE POWER
RESOURCES AND POWER DEMANDS WITHIN THE AREA OF THE MARKETING
RESPONSIBILITY OF BPA NECESSARILY RESULT IN SURPLUSES OF POWER ON THE
FEDERAL SYSTEM WHICH IS THE BASIC WHOLESALE SUPPLIER OF POWER IN THE
AREA AND THEREBY RESULT IN FINANCIAL DEFICITS ON THE FEDERAL MARKETING
SYSTEM.  IN VIEW OF THE ROLE OF THE FEDERAL SYSTEM AS THE BASE SUPPLIER
FOR THE AREA, THIS THREATENS THE STABILITY OF THE AREA'S PERMANENT
RESOURCES AND HENCE OF THE AREA'S ECONOMY.  THE HIGH MOUNTAIN SHEEP
PROJECT AT THIS TIME WOULD HAVE SUCH AN EFFECT." 

WE ARE ALSO TOLD THAT HYDROELECTRIC POWER PROMISES TO OCCUPY A
RELATIVELY SMALL PLACE IN THE WORLD'S SUPPLY OF ENERGY.  IT IS
ESTIMATED THAT WHEN THE WORLD'S POPULATION REACHES 7,000,000,000 - AS
IT WILL IN A FEW DECADES - THE TOTAL ENERGY REQUIREMENT (FN11) WILL BE
70,000,000,000 METRIC TONS OF COAL OR EQUIVALENT ANNUALLY AND THAT IT
WILL BE SUPPLIED AS FOLLOWS:

                                  EQUIVALENT

                                               METRIC TONS OF 

SOURCE      COALBILLIONS) 

SOLAR ENERGY (FOR TWO-THIRDS OF SPACE HEATING)
15.6 

HYDROELECTRICITY
4.2 

WOOD FOR LUMBER AND PAPER             2.7 

WOOD FOR CONVERSION TO LIQUID FUELS AND CHEMICALS
2.3 

LIQUID FUELS AND "PETRO" CHEMICALS PRODUCED VIA NUCLEAR ENERGY
10.0 

NUCLEAR ELECTRICITY         35.2 

TOTAL                             70.0 

BROWN, THE NEXT HUNDRED YEARS (1957), P. 113. 

BY 1980 NUCLEAR ENERGY "SHOULD REPRESENT A SIGNIFICANT PROPORTION OF
WORLD POWER PRODUCTION."  ID., AT 109.  BY THE END OF THE CENTURY
"NUCLEAR ENERGY MAY ACCOUNT FOR ABOUT ONE-THIRD OF OUR TOTAL ENERGY
CONSUMPTION."  IBID.  "BY THE MIDDLE OF THE NEXT CENTURY IT SEEMS
LIKELY THAT MOST OF OUR ENERGY NEEDS WILL BE SATISFIED BY NUCLEAR
ENERGY."  ID., AT 110. 

SOME OF THESE TIME SCHEDULES ARE WITHIN THE PERIOD OF THE 50-YEAR
LICENSES GRANTED BY THE COMMISSION. 

NUCLEAR ENERGY IS COMING TO THE COLUMBIA RIVER BASIN BY 1975.  FOR
PLANS ARE AFOOT TO BUILD A PLANT ON THE TROGAN SITE, 14 MILES NORTH OF
ST. HELENS.  THIS ONE PLANT WILL HAVE A CAPACITY OF 1,000,000 KWS. 
THIS EMPHASIZES THE RELEVANCY OF THE SECRETARY'S REFERENCE TO
PRODUCTION AND DISTRIBUTION OF NUCLEAR ENERGY AT THE HANFORD THERMAL
PROJECT WHICH HE CALLED "MOST IMPORTANT OF ALL" AND WHICH CONGRESS HAS
AUTHORIZED.  76 STAT. 604. 

IMPLICIT IN THE REASONING OF THE COMMISSION AND THE EXAMINER IS THE
ASSUMPTION THAT THIS PROJECT MUST BE BUILT AND THAT IT MUST BE BUILT
NOW.  IN THE VIEW OF THE COMMISSION, ONE OF THE FACTORS MILITATING
AGAINST FEDERAL DEVELOPMENT WAS THAT "THE DEPARTMENT OF INTERIOR  ...
FRANKLY ADMITTED IT HAD NO PRESENT INTENTION OF SEEKING AUTHORIZATION
TO COMMENCE CONSTRUCTION OR PLANNING TO CONSTRUCT AN HMS PROJECT."  31
F.P.C., AT 277.  THE EXAMINER'S REPORT STATED THAT "A COMPREHENSIVE
PLAN PROVIDES FOR PROMPT AND OPTIMUM MULTIPURPOSE DEVELOPMENT OF THE
WATER RESOURCE" AND THAT THE RELATIVE MERITS OF THE PROPOSED PROJECTS
"TURN ON A COMPARISON OF THE COSTS AND BENEFITS OF COMPONENT
DEVELOPMENTS AND ON WHICH PROJECT IS BEST ADAPTED TO ATTAIN OPTIMUM
DEVELOPMENT AT THE EARLIEST TIME WITH THE SMALLEST SACRIFICE OF NATURAL
VALUES."  J.A. 394.  BUT NEITHER THE EXAMINER NOR THE COMMISSION
SPECIFICALLY FOUND THAT DEFERRAL OF THE PROJECT WOULD NOT BE IN THE
PUBLIC INTEREST OR THAT IMMEDIATE DEVELOPMENT WOULD BE MORE IN THE
PUBLIC INTEREST THAN CONSTRUCTION AT SOME FUTURE TIME OR NO
CONSTRUCTION AT ALL.  SECTION 4(E) OF THE ACT, THE SECTION AUTHORIZING
THE COMMISSION TO GRANT LICENSES, PROVIDES IN PART: 

"WHENEVER THE CONTEMPLATED IMPROVEMENT IS, IN THE JUDGMENT OF THE
COMMISSION, DESIRABLE AND JUSTIFIED IN THE PUBLIC INTEREST FOR THE
PURPOSE OF IMPROVING OR DEVELOPING A WATERWAY OR WATERWAYS FOR THE USE
OR BENEFIT OF INTERSTATE OR FOREIGN COMMERCE, A FINDING TO THAT EFFECT
SHALL BE MADE BY THE COMMISSION AND SHALL BECOME A PART OF THE RECORDS
OF THE COMMISSION."  49 STAT. 840, 16 U.S.C. SEC. 797(E). 

AND SEC 10(A) OF THE ACT PROVIDES THAT: 

"THE PROJECT ADOPTED  ...  SHALL BE SUCH AS IN THE JUDGMENT OF THE
COMMISSION WILL BE BEST ADAPTED TO A COMPREHENSIVE PLAN FOR IMPROVING
OR DEVELOPING A WATERWAY OR WATERWAYS FOR THE USE OR BENEFIT OF
INTERSTATE OR FOREIGN COMMERCE, FOR THE IMPROVEMENT AND UTILIZATION OF
WATER-POWER DEVELOPMENT, AND FOR OTHER BENEFICIAL PUBLIC USES,
INCLUDING RECREATIONAL PURPOSES  ...  ."  49 STAT. 842, 16 U.S.C. SEC
803(A). 

THE ISSUES OF WHETHER DEFERRAL OF CONSTRUCTION WOULD BE MORE IN THE
PUBLIC INTEREST THAN IMMEDIATE CONSTRUCTION AND WHETHER PRESERVATION OF
THE REACHES OF THE RIVER AFFECTED WOULD BE MORE DESIRABLE AND IN THE
PUBLIC INTEREST THAN THE PROPOSED DEVELOPMENT ARE LARGELY UNEXPLORED IN
THIS RECORD.  WE CANNOT ASSUME THAT THE ACT COMMANDS THE IMMEDIATE
CONSTRUCTION OF AS MANY PROJECTS AS POSSIBLE.  THE COMMISSION DID
DISCUSS THE SECRETARY OF INTERIOR'S CLAIM THAT, DUE TO ALTERNATE POWER
SOURCES, THE REGION WILL NOT NEED THE POWER SUPPLIED BY THE HIGH
MOUNTAIN SHEEP DAM FOR SOME TIME.  AND IT CONCLUDED THAT "OF MORE
SIGNIFICANCE  ...  THAN THE REGIONAL POWER SITUATION ARE THE LOAD AND
RESOURCES OF THE (PACIFIC NORTHWEST POWER COMPANY) COMPANIES
THEMSELVES," WHICH COULD USE THE POWER IN THE NEAR FUTURE.  31 F.P.C.,
AT 272.  IT ADDED, "IN SUMMARY AS TO THE NEED FOR POWER, WE CONCLUDE
THAT THE PNPC SPONSORING COMPANIES WILL BE ABLE TO USE HMS POWER AS
SOON AS IT IS AVAILABLE."  31 F.P.C., AT 273.  ON REHEARING, THE
COMMISSION STATED THAT "HMS POWER WILL BE NEEDED ON A REGIONAL BASIS BY
1970-1971  ...  ."  31 F.P.C. 1051, 1052.    THE QUESTION WHETHER THE
PROPONENTS OF A PROJECT "WILL BE ABLE TO USE" THE POWER SUPPLIED IS
RELEVANT TO THE ISSUE OF THE PUBLIC INTEREST.  SO TOO IS THE REGIONAL
NEED FOR THE ADDITIONAL POWER.   BUT THE INQUIRY SHOULD NOT STOP
THERE.  A LICENSE UNDER THE ACT EMPOWERS THE LICENSEE TO CONSTRUCT, FOR
ITS OWN USE AND BENEFIT, HYDROELECTRIC PROJECTS UTILIZING THE FLOW OF
NAVIGABLE WATERS AND THUS, IN EFFECT, TO APPROPRIATE WATER RESOURCES
FROM THE PUBLIC DOMAIN.  THE GRANT OF AUTHORITY TO THE COMMISSION TO
ALIENATE FEDERAL WATER RESOURCES DOES NOT, OF COURSE, TURN SIMPLY ON
WHETHER THE PROJECT WILL BE BENEFICIAL TO THE LICENSEE.  NOR IS THE
TEST SOLELY WHETHER THE REGION WILL BE ABLE TO USE THE ADDITIONAL
POWER.  THE TEST IS WHETHER THE PROJECT WILL BE IN THE PUBLIC
INTEREST.  AND THAT DETERMINATION CAN BE MADE ONLY AFTER AN EXPLORATION
OF ALL ISSUES RELEVANT TO THE "PUBLIC INTEREST," INCLUDING FUTURE POWER
DEMAND AND SUPPLY, ALTERNATE SOURCES OF POWER, THE PUBLIC INTEREST IN
PRESERVING REACHES OF WILD RIVERS AND WILDERNESS AREAS, THE
PRESERVATION OF ANADROMOUS FISH FOR COMMERCIAL AND RECREATIONAL
PURPOSES, AND THE PROTECTION OF WILDLIFE. 

THE NEED TO DESTROY THE RIVER AS A WATERWAY, THE DESIRABILITY OF ITS
DEMISE, THE CHOICES AVAILABLE TO SATISFY FUTURE DEMANDS FOR ENERGY -
THESE ARE ALL RELEVANT TO A DECISION UNDER SEC 7 AND SEC 10 BUT THEY
WERE LARGELY UNTOUCHED BY THE COMMISSION. 

ON OUR REMAND THERE SHOULD BE AN EXPLORATION OF THESE NEGLECTED
PHASES OF THE CASES, AS WELL AS THE OTHER POINTS RAISED BY THE
SECRETARY. 

WE EXPRESS NO OPINION ON THE MERITS.  IT IS NOT OUR TASK TO DETERMINE
WHETHER ANY DAM AT ALL SHOULD BE BUILT OR WHETHER IF ONE IS AUTHORIZED
IT SHOULD BE PRIVATE OR PUBLIC.  IF THE ULTIMATE RULING UNDER SEC 7(B)
IS THAT THE DECISION CONCERNING THE HIGH MOUNTAIN SHEEP SITE SHOULD BE
MADE BY THE CONGRESS, THE FACTORS WE HAVE MENTIONED WILL BE AMONG THE
MANY CONSIDERATIONS IT DOUBTLESS WILL APPRAISE.  IF THE ULTIMATE
DECISION UNDER SEC 7(B) IS THE OTHER WAY, THE COMMISSION WILL NOT HAVE
DISCHARGED ITS FUNCTIONS UNDER THE ACT UNLESS IT MAKES AN INFORMED
JUDGMENT ON THESE PHASES OF THE CASES. 

THIS LEAVES US WITH THE QUESTIONS PRESENTED BY WASHINGTON PUBLIC
POWER SUPPLY SYSTEM IN NO. 462.  THE MAIN POINTS RAISED BY IT ARE THAT
IT IS A "MUNICIPALITY" WITHIN THE MEANING OF SEC 7(A) AND THEREFORE
ENTITLED TO A PREFERENCE OVER THIS POWER SITE, THAT THE COMMISSION
VIOLATED THAT STATUTORY PREFERENCE, AND THAT WHILE PACIFIC NORTHWEST
HAD A PRIOR PRELIMINARY PERMIT GRANTED UNDER SEC 5 OF THE ACT, THE
COMMISSION UNLAWFULLY EXPANDED IT TO INCLUDE THIS SITE.  WE EXPRESS NO
OPINION ON THE MERITS OF THESE CONTENTIONS BECAUSE THEY MAY OR MAY NOT
SURVIVE A REMAND.  IF IN TIME THE PROJECT, IF ANY, BECOMES A FEDERAL
ONE, WASHINGTON PUBLIC POWER SUPPLY SYSTEM WOULD BE EXCLUDED ALONG WITH
PACIFIC NORTHWEST, AND THE POINTS NOW RAISED BY IT WOULD BECOME MOOT. 
IF IN TIME A NEW LICENSE IS ISSUED TO PACIFIC NORTHWEST, THE POINTS NOW
RAISED BY WASHINGTON PUBLIC POWER SUPPLY SYSTEM CAN BE PRESERVED. 
ACCORDINGLY IN NO. 462 WE VACATE THE JUDGMENT AND REMAND THE CASE TO
THE COURT OF APPEALS WITH INSTRUCTIONS TO REMAND TO THE COMMISSION.  IN
NO. 463 WE REVERSE THE JUDGMENT AND REMAND THE CASE TO THE COURT OF
APPEALS WITH INSTRUCTIONS TO REMAND TO THE COMMISSION.  EACH REMAND IS
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  SECTION 4 OF THE ACT PROVIDES IN PART: 

"THE COMMISSION IS HEREBY AUTHORIZED AND EMPOWERED: 

"(A)  TO MAKE INVESTIGATIONS AND TO COLLECT AND RECORD DATA
CONCERNING THE UTILIZATION OF THE WATER RESOURCES OF ANY REGION TO BE
DEVELOPED, THE WATER-POWER INDUSTRY AND ITS RELATION TO OTHER
INDUSTRIES AND TO INTERSTATE OR FOREIGN COMMERCE, AND CONCERNING THE
LOCATION, CAPACITY, DEVELOPMENT COSTS, AND RELATION TO MARKETS OF POWER
SITES, AND WHETHER THE POWER FROM GOVERNMENT DAMS CAN BE ADVANTAGEOUSLY
USED BY THE UNITED STATES FOR ITS PUBLIC PURPOSES, AND WHAT IS A FAIR
VALUE OF SUCH POWER, TO THE EXTENT THE COMMISSION MAY DEEM NECESSARY OR
USEFUL FOR THE PURPOSES OF THIS ACT. 

     *         *         *         *         * 

"(E)  TO ISSUE LICENSES TO CITIZENS OF THE UNITED STATES, OR TO ANY
ASSOCIATION OF SUCH CITIZENS, OR TO ANY CORPORATION ORGANIZED UNDER THE
LAWS OF THE UNITED STATES OR ANY STATE THEREOF, OR TO ANY STATE OR
MUNICIPALITY FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND
MAINTAINING DAMS, WATER CONDUITS, RESERVOIRS, POWER HOUSES,
TRANSMISSION LINES, OR OTHER PROJECT WORKS NECESSARY OR CONVENIENT FOR
THE DEVELOPMENT AND IMPROVEMENT OF NAVIGATION AND FOR THE DEVELOPMENT,
TRANSMISSION, AND UTILIZATION OF POWER ACROSS, ALONG, FROM, OR IN ANY
OF THE STREAMS OR OTHER BODIES OF WATER OVER WHICH CONGRESS HAS
JURISDICTION UNDER ITS AUTHORITY TO REGULATE COMMERCE WITH FOREIGN
NATIONS AND AMONG THE SEVERAL STATES, OR UPON ANY PART OF THE PUBLIC
LANDS AND RESERVATIONS OF THE UNITED STATES (INCLUDING THE
TERRITORIES), OR FOR THE PURPOSE OF UTILIZING THE SURPLUS WATER OR
WATER POWER FROM ANY GOVERNMENT DAM, EXCEPT AS HEREIN PROVIDED  ...
."  49 STAT. 839, 840, 16 U.S.C. SECS 797(A), (E). 

FN2  SEE N. 1, SUPRA, FOR SEC 4(E).  SECTION 7(A) OF THE ACT
PROVIDES: 

"IN ISSUING PRELIMINARY PERMITS HEREUNDER OR LICENSES WHERE NO
PRELIMINARY PERMIT HAS BEEN ISSUED AND IN ISSUING LICENSES TO NEW
LICENSEES UNDER SECTION 15 HEREOF THE COMMISSION SHALL GIVE PREFERENCE
TO APPLICATIONS THEREFOR BY STATES AND MUNICIPALITIES, PROVIDED THE
PLANS FOR THE SAME ARE DEEMED BY THE COMMISSION EQUALLY WELL ADAPTED,
OR SHALL WITHIN A REASONABLE TIME TO BE FIXED BY THE COMMISSION BE MADE
EQUALLY WELL ADAPTED, TO CONSERVE AND UTILIZE IN THE PUBLIC INTEREST
THE WATER RESOURCES OF THE REGION  ...  ."  49 STAT.  842, 16 U.S.C.
SEC 800(A). 

FN3  THE SECRETARY ARGUED THAT FEDERAL DEVELOPMENT OF HIGH MOUNTAIN
SHEEP IS NECESSARY BECAUSE (1) HYDRAULIC AND ELECTRICAL COORDINATION
WITH OTHER COLUMBIA RIVER BASIN PROJECTS, PARTICULARLY THE FEDERAL DAMS
ALREADY OR TO BE CONSTRUCTED ON THE DOWNSTREAM SITES, COULD BE MORE
EFFECTIVELY ACHIEVED IF HIGH MOUNTAIN SHEEP IS A PART OF THE FEDERAL
SYSTEM; (2) FEDERAL DEVELOPMENT WILL ASSURE MAXIMUM USE OF THE FEDERAL
NORTHWEST TRANSMISSION GRID, THUS CONTRIBUTING TO MAXIMUM REPAYMENT OF
THE FEDERAL INVESTMENT IN TRANSMISSION, WHICH WILL, IN TURN, REDOUND TO
THE BENEFIT OF THE POWER CONSUMERS; (3) FEDERAL DEVELOPMENT WOULD
PROVIDE GREATER FLEXIBILITY AND PROTECTION IN THE MANAGEMENT OF FISH
RESOURCES; (4) FLOOD CONTROL COULD BETTER BE EFFECTED BY FLEXIBLE
FEDERAL OPERATION; (5) STORAGE RELEASES FOR NAVIGATION REQUIREMENTS
COULD BE MADE UNDER FEDERAL OWNERSHIP AND SUPERVISION WITH LESS EFFECT
ON POWER SUPPLY; (6) FEDERAL DEVELOPMENT CAN BETTER PROVIDE
RECREATIONAL FACILITIES FOR AN EXPANDING POPULATION.  THE SECRETARY
NOTED, HOWEVER, THAT IMMEDIATE CONSTRUCTION OF THE PROJECT WOULD
PRODUCE AN EXCESS OF POWER IN THE PACIFIC NORTHWEST WHICH WOULD CAUSE
LARGE LOSSES TO BONNEVILLE POWER ADMINISTRATION AND SEVERE HARM TO THE
REGION'S ECONOMY. 

FN4  VARIOUS FEDERAL AGENCIES HAVE BEEN LONG ENGAGED IN THE
DEVELOPMENT OF A COMPREHENSIVE PLAN FOR THE IMPROVEMENT OF THE MIDDLE
SNAKE.  AS EARLY AS 1948 THE SECRETARY OF THE INTERIOR SUBMITTED A
COMPREHENSIVE PLAN FOR THE DEVELOPMENT OF WATER RESOURCES OF THE
COLUMBIA RIVER BASIN.  IN 1949 THE CORPS OF ENGINEERS SUBMITTED A
COMPREHENSIVE PLAN FOR THE DEVELOPMENT OF THE COLUMBIA RIVER BASIN. 
H.R. DOC. NO. 531, 81ST CONG., 2D SESS., VOL. 1, PP. 1-3, VOL. 4, PP.
1429, 1482, VOL. 6, P. 2509.  THE PLAN RECOMMENDED, IN PART, FEDERAL
CONSTRUCTION OF NINE RUN-OF-THE-RIVER DAMS DOWNSTREAM FROM HIGH
MOUNTAIN SHEEP AND A REGULATING RESERVOIR FOR THE NINE DAMS AT HELLS
CANYON ON THE UPPER SNAKE.   THE NINE DAMS WERE ALL AUTHORIZED BY
CONGRESS AND HAVE BEEN OR, IN ONE CASE, WILL BE CONSTRUCTED AS FEDERAL
PROJECTS IN ACCORDANCE WITH THE PLAN.  HELLS CANYON WAS LATER LICENSED
FOR PRIVATE DEVELOPMENT, AND, ACCORDING TO THE SECRETARY OF THE
INTERIOR, WITHOUT ADEQUATE REGULATING FACILITIES.  THE CORPS OF
ENGINEERS AND THE SECRETARY OF THE INTERIOR THEN RECOMMENDED THAT THE
FEDERAL REGULATING DAM BE BUILT, AFTER FURTHER STUDY, AT HIGH MOUNTAIN
SHEEP - THE LAST SUITABLE SITE.  H.R. DOC. NO. 403, 87TH CONG., 2D
SESS., VOL. 1, PP. IV, VIII-IX, 260.  THOUGH IT IS NOT CONTENDED THAT
CONGRESSIONAL AUTHORIZATION OF THE NINE FEDERAL DAMS DOWNSTREAM MAY
HAVE PRE-EMPTED THE COMMISSION'S AUTHORITY TO LICENSE HIGH MOUNTAIN
SHEEP FOR PRIVATE DEVELOPMENT (CF. CHAPMAN V. FEDERAL POWER COMM'N, 345
U.S. 153), IT IS ARGUED THAT CONGRESS APPROPRIATED VAST SUMS FOR
FEDERAL DEVELOPMENT OF THE COLUMBIA RIVER BASIN'S HYDROELECTRIC
RESOURCES IN ACCORDANCE WITH AN OVERALL PLAN THAT CONTEMPLATED THAT THE
KEY STRUCTURE IN THE SYSTEM WOULD BE FEDERALLY OPERATED AND THAT THE
DOWNSTREAM DAMS CAN BE EFFICIENTLY OPERATED ONLY IF HIGH MOUNTAIN SHEEP
IS FEDERALLY OPERATED. 

FN5  "ALL LICENSES ISSUED UNDER THIS PART SHALL BE ON THE FOLLOWING
CONDITIONS: 

"(A)  THAT THE PROJECT ADOPTED, INCLUDING THE MAPS, PLANS, AND
SPECIFICATIONS, SHALL BE SUCH AS IN THE JUDGMENT OF THE COMMISSION WILL
BE BEST ADAPTED TO A COMPREHENSIVE PLAN FOR IMPROVING OR DEVELOPING A
WATERWAY OR WATERWAYS FOR THE USE OR BENEFIT OF INTERSTATE OR FOREIGN
COMMERCE, FOR THE IMPROVEMENT AND UTILIZATION OF WATER-POWER
DEVELOPMENT, AND FOR OTHER BENEFICIAL PUBLIC USES, INCLUDING
RECREATIONAL PURPOSES; AND IF NECESSARY IN ORDER TO SECURE SUCH PLAN
THE COMMISSION SHALL HAVE AUTHORITY TO REQUIRE THE MODIFICATION OF ANY
PROJECT AND OF THE PLANS AND SPECIFICATIONS OF THE PROJECT WORKS BEFORE
APPROVAL."  49 STAT.  842, 16 U.S.C. SEC 803(A). 

FN6  IN 1966 THE VALUE OF THE PACIFIC SALMON CATCH WAS OVER
$67,000,000 AND IN 1965 OVER $65,000,000.  UNITED STATES DEPARTMENT OF
INTERIOR, FISH & WILDLIFE SERVICE, FISHERIES OF THE UNITED STATES,
1966, P. 2.  AS NOTED BY THE COMMISSION, "THE COLUMBIA RIVER IS THE
GREATEST PRODUCER OF PACIFIC SALMON AND STEELHEAD TROUT IN THE UNITED
STATES."  "COLUMBIA RIVER SALMON HAVE BEEN IMPORTANT IN THE DEVELOPMENT
OF THE PACIFIC NORTHWEST FOR ALMOST A CENTURY."  "THE COMMERCIAL CATCH
OF COLUMBIA RIVER SALMON IS ESTIMATED TO BE WORTH $12,000,000 ANNUALLY
AND THE SPORT FISHING ATTRIBUTABLE TO THE SALMON RIVER ALONE  ...  MAY
BE WORTH AS MUCH AS $8 MILLION A YEAR."  31 F.P.C., AT 259. 

FN7  SEE H.R. REP. NO. 1007, 89TH CONG., 1ST SESS., PP. 2-5; S. REP.
NO. 860, 89TH CONG., 1ST SESS.; ANADROMOUS FISH, HEARINGS BEFORE THE
SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION OF THE HOUSE
COMMITTEE ON MERCHANT MARINE AND FISHERIES, 88TH CONG., 2D SESS., 11. 

FN8  RECENTLY, CONGRESS HAS EXPRESSED A RENEWED INTEREST IN
PRESERVING OUR NATION'S RIVERS IN THEIR WILD, UNEXPLOITED STATE.  ON
JANUARY 18, 1966, THE SENATE PASSED THE NATIONAL WILD RIVERS BILL (S.
1446, 89TH CONG., 2D SESS., 112 CONG. REC. 500 (DAILY ED., JAN. 18,
1966), AND IT WAS PENDING BEFORE THE HOUSE OF REPRESENTATIVES WHEN THE
EIGHTY-NINTH CONGRESS ADJOURNED.  THE BILL HAS ALREADY BEEN
REINTRODUCED IN THE NINETIETH CONGRESS.  S. 119, 90TH CONG., 1ST
SESS.).  IF ENACTED, IT WOULD PRESERVE THE SALMON RIVER, A TRIBUTARY OF
THE SNAKE JUST BELOW HIGH MOUNTAIN SHEEP, IN ITS NATURAL STATE.  THE
BILL STATES: 

"THE CONGRESS FINDS THAT SOME OF THE FREE-FLOWING RIVERS OF THE
UNITED STATES POSSESS UNIQUE WATER CONSERVATION, SCENIC, FISH,
WILDLIFE, AND OUTDOOR RECREATION VALUES OF PRESENT AND POTENTIAL
BENEFIT TO THE AMERICAN PEOPLE.  THE CONGRESS ALSO FINDS THAT OUR
ESTABLISHED NATIONAL POLICY OF DAM AND OTHER CONSTRUCTION AT
APPROPRIATE SECTIONS OF THE RIVERS OF THE UNITED STATES NEEDS TO BE
COMPLEMENTED BY A POLICY THAT WOULD PRESERVE OTHER SELECTED RIVERS OR
QUALITY OF SUCH RIVERS AND TO FULFILL OTHER VITAL NATIONAL CONSERVATION
PURPOSES.  IT IS THE POLICY OF CONGRESS TO PRESERVE, DEVELOP, RECLAIM,
AND MAKE ACCESSIBLE FOR THE BENEFIT OF ALL OF THE AMERICAN PEOPLE
SELECTED PARTS OF THE NATION'S DIMINISHING RESOURCE OF FREE-FLOWING
RIVERS."  AND SEE SECS 2 AND 4(D) OF THE WILDERNESS ACT OF 1964, 78
STAT. 890, 894. 

FN9  LONG, DAY-NIGHT OCCURRENCE AND VERTICAL DISTRIBUTION OF JUVENILE
ANADROMOUS FISH IN TURBINE INTAKES (U.S. BUREAU OF COMMERCIAL
FISHERIES, FISH-PASSAGE RESEARCH PROGRAM) 12, 13, 16. 

FN10  FROM THE DATA, IT WOULD APPEAR THAT SUCCESSFUL PASSAGE OF
JUVENILE SALMONOIDS IS HIGHLY UNLIKELY THROUGH THE IMPOUNDMENTS THAT
WILL BE CREATED IN THE MIDDLE SNAKE RIVER BASIN.  THIS IMPLIES THAT IF
NATURAL RUNS ARE TO BE PASSED IN THIS AREA, DOWNSTREAM MIGRANTS MUST BE
COLLECTED IN THE HEAD OF A RESERVOIR OR IN STREAMS ABOVE THE RESERVOIR
AND TRANSPORTED BELOW. 

"PASSAGE OF JUVENILES HAS NOT BEEN SUCCESSFUL.  ESCAPEMENT FROM THE
RESERVOIR VARIED FROM YEAR TO YEAR, RANGING FROM APPROXIMATELY 10 TO 55
PERCENT OF THE CALCULATED RECRUITMENT.  THE BEST PASSAGE OCCURRED IN
1964 IN CONJUNCTION WITH A SUBSTANTIAL DRAWDOWN, HIGH INFLOWS, AND A
SLOW SPRING FILL-UP THAT RESULTED IN LARGE DISCHARGES (UP TO 50,000
C.F.S.)  DURING SMOLT MIGRATION.  PROGENY OF SPRING-RUN CHINOOK STOCKS
APPEAR TO FARE BETTER THAN THOSE FROM THE FALL RUN, AND LIMITED DATA ON
STEELHEAD SUGGEST THAT THIS SPECIES MAY BE HAVING EVEN GREATER
DIFFICULTY THAN SALMON IN PASSING THROUGH THE RESERVOIR."  COLLINS &
ELLING, SUMMARY OF PROGRESS IN FISH-PASSAGE RESEARCH 1964, P. 2, IN
VOL. 1, FISH-PASSAGE RESEARCH PROGRAM, REVIEW OF PROGRESS (U.S. BUREAU
OF COMMERCIAL FISHERIES 1964).    FN11  PROJECTIONS OF ENERGY SOURCES
FOR THE COMING YEARS HAVE BEEN SUMMARIZED IN ENERGY R&D AND NATIONAL
PROGRESS, PREPARED FOR THE INTERDEPARTMENTAL ENERGY STUDY BY THE ENERGY
STUDY GROUP, UNDER DIRECTION OF A.B. CAMBEL, AT 22.  THE FOLLOWING
TABLE IS TAKEN FROM THAT SOURCE.  (TABLE OMITTED). 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

I HAD THOUGHT IT INDISPUTABLE, FIRST, THAT A COURT MAY NOT OVERTURN A
DETERMINATION MADE BY AN ADMINISTRATIVE AGENCY UPON A QUESTION
COMMITTED TO THE AGENCY'S JUDGMENT UNLESS THE DETERMINATION IS
"UNSUPPORTED BY SUBSTANTIAL EVIDENCE,"  (FN1) AND, SECOND, THAT THE
SUBSTANTIALITY OF THE EVIDENCE MUST BE MEASURED THROUGH, AND ONLY
AFTER, AN EXAMINATION OF THE "WHOLE RECORD."  (FN2) 

THE COMMISSION HAS DETERMINED, ON THE BASIS OF 14,327 PAGES OF
TESTIMONY AND EXHIBITS, OF "EXTENSIVE MATERIAL"  (FN3) SUBMITTED AFTER
THE CLOSE OF THE RECORD BY THE SECRETARY OF THE INTERIOR,  (FN4) AND OF
THE COMMISSION'S OWN "GENERAL KNOWLEDGE OF THE COLUMBIA RIVER SYSTEM,"
31 F.P.C. 247, 277, THAT THE APPLICATION OF PACIFIC NORTHWEST WAS "BEST
ADAPTED TO A COMPREHENSIVE PLAN," 49 STAT. 842, 16 U.S.C. SEC 803(A),
OF DEVELOPMENT FOR THIS PORTION OF THE COLUMBIA RIVER BASIN, AND THAT,
AS A CONSEQUENCE, THIS SITE SHOULD NOT NOW BE RESERVED FOR LATER
DEVELOPMENT BY THE UNITED STATES.  (FN5) 

THE COURT OF APPEALS UNANIMOUSLY CONCLUDED THAT THIS EVIDENTIARY
RECORD ESTABLISHES THAT "THE COMMISSION WAS AMPLY JUSTIFIED IN REFUSING
TO RECOMMEND FEDERAL DEVELOPMENT AND IN ISSUING A LICENSE FOR PRIVATE
CONSTRUCTION."  123 U.S. APP. D.C. 209, 217, 358 F.2D 840, 848.  I
AGREE.  DOUBTLESS MUCH OF THE EVIDENCE WAS NOT, AS IT WAS SUBMITTED,
LABELED AS PERTINENT TO A DETERMINATION OF THE COMMISSION'S
RESPONSIBILITIES UNDER SEC 7(B), BUT I HAD NOT BEFORE UNDERSTOOD THAT
EVIDENCE MARSHALED IN SUPPORT OF AN AGENCY'S FINDING MUST, IF IT IS TO
BE CREDITED, HAVE BEEN TIDILY CATEGORIZED AT THE HEARING ACCORDING TO
THE PURPOSES FOR WHICH IT MIGHT SUBSEQUENTLY BE EMPLOYED. 

I CAN ONLY CONCLUDE THAT THE COURT, DESPITE ITS SELF-SERVING
DISCLAIMER, ANTE, PP. 450-451, HAS, IN ITS HASTE TO GIVE FORCE TO ITS
OWN FINDINGS OF FACT ON THE BREEDING REQUIREMENTS OF ANADROMOUS FISH
(FN6) AND ON THE LIKELIHOOD THAT SOLAR AND NUCLEAR POWER WILL SHORTLY
BE ALTERNATIVE SOURCES OF SUPPLY, SUBSTITUTED ITS OWN PREFERENCES FOR
THE DISCRETION GIVEN BY CONGRESS TO THE FEDERAL POWER COMMISSION.  IN
PARTICULAR, IT MUST BE EMPHASIZED THAT THE COURT, ALONE AMONG THE
SECRETARY OF THE INTERIOR, THE COMMISSION, PACIFIC NORTHWEST, THE
WASHINGTON PUBLIC POWER SUPPLY SYSTEM, AND THE VARIOUS OTHER
INTERVENORS, APPARENTLY SUPPOSES THAT NO DAM AT ALL MAY NOW BE NEEDED
AT HIGH MOUNTAIN SHEEP.  (FN7)  WHEREVER THE RIGHT LIES ON THAT ISSUE,
IT NEED ONLY BE SAID THAT CONGRESS HAS ENTRUSTED ITS RESOLUTION TO THE
COMMISSION'S INFORMED DISCRETION, AND THAT, ON THE BASIS OF AN AMPLE
EVIDENTIARY RECORD, THE COMMISSION HAS DETERMINED THAT PACIFIC
NORTHWEST SHOULD NOW BE LICENSED TO CONSTRUCT THE PROJECT. 

I WOULD AFFIRM THE JUDGMENTS IN BOTH CASES SUBSTANTIALLY FOR THE
REASONS GIVEN IN JUDGE MILLER'S OPINION BELOW, AS AMPLIFIED BY THE
CONSIDERATIONS CONTAINED IN THIS OPINION. 

FN1  ADMINISTRATIVE PROCEDURE ACT SEC 10(E), 5 U.S.C. SEC
706(2)(E)(1964 ED., SUPP. II).  SEE ALSO UNIVERSAL CAMERA CORP. V.
LABOR BOARD, 340 U.S. 474, 488; JAFFE, JUDICIAL CONTROL OF
ADMINISTRATIVE ACTION 600 ET SEQ. (1965). 

FN2  5 U.S.C. SEC 706 (1964 ED., SUPP. II). 

FN3  31 F.P.C. 247, 275. 

FN4  THE HISTORY OF THE SECRETARY'S EXTRAORDINARY SERIES OF BELATED
AND APPARENTLY INDECISIVE INTERVENTIONS IN THESE PROCEEDINGS WARRANTS A
MORE COMPLETE CHRONICLE THAN THE COURT HAS GIVEN.  ON MARCH 31, 1958,
PACIFIC NORTHWEST APPLIED FOR A LICENSE FOR THE HIGH MOUNTAIN SHEEP
SITE, AND ON OCTOBER 21, 1959, THE COMMISSION SOLICITED THE VIEWS OF
THE SECRETARY OF THE INTERIOR.  ON NOVEMBER 21, 1960, THE SECRETARY
REPLIED SUBSTANTIVELY, AND URGED THAT THE ENTIRE PROJECT BE POSTPONED,
SINCE THE AVAILABLE POWER SUPPLY IN THE REGION WAS, IN HIS VIEW, THEN
SUFFICIENT.  THE HEARINGS NONETHELESS CONTINUED.  ON MARCH 15, 1961,
THE SECRETARY WROTE ONCE MORE, FIRST TO INDICATE THAT HE WAS
WITHDRAWING PERMISSION FOR INTERIOR DEPARTMENT EMPLOYEES TO TESTIFY AT
THE HEARINGS ON QUESTIONS OF THE ALTERNATIVE POWER SOURCES AND OF THE
PROTECTION OF THE ANADROMOUS FISH, AND SECOND TO SUGGEST THAT THE
HEARINGS SHOULD BE RECESSED OR SUSPENDED UNTIL THE END OF 1964, MORE
THAN THREE YEARS LATER.  THERE WAS, IN THESE VARIOUS COMMUNICATIONS, NO
INTIMATION THAT FEDERAL DEVELOPMENT OF THE SITE WAS DESIRABLE OR EVEN
APPROPRIATE.  THE HEARINGS CONCLUDED ON SEPTEMBER 12, 1961. 

ON JUNE 28, 1962, THE SECRETARY SUGGESTED, FOR THE FIRST TIME, THAT
FEDERAL DEVELOPMENT MIGHT BE SUITABLE; HE DID NOT, HOWEVER, URGE THAT
EITHER HE OR THE COMMISSION SHOULD IMMEDIATELY SEEK CONGRESSIONAL
APPROVAL OF SUCH A FEDERAL PROJECT, A PRECONDITION TO ITS
COMMENCEMENT.  NOR DID THE SECRETARY INTIMATE THAT THE EVIDENTIARY
RECORD THAT HAD BEEN COMPILED BY THE COMMISSION MIGHT BE INCOMPLETE, OR
REQUEST THAT IT BE REOPENED SO THAT HE MIGHT SUPPLEMENT IT.
NONETHELESS, THE COMMISSION SUA SPONTE ORDERED THE PARTIES TO RESPOND
TO THE SECRETARY'S SUGGESTION. 

ON OCTOBER 8, 1962, THE EXAMINER COMPLETED HIS RECOMMENDATIONS,
CONCLUDING THAT PACIFIC NORTHWEST'S PROPOSAL WAS "BEST ADAPTED" TO THE
RIVER'S DEVELOPMENT, IN PART BECAUSE FEDERAL DEVELOPMENT COULD NOT
REASONABLY BE IMMEDIATELY ANTICIPATED.  THE SECRETARY THEREUPON SOUGHT
TO INTERVENE OUT OF TIME, AND TO FILE EXCEPTIONS.  HE DID NOT REQUEST
THAT THE RECORD BE REOPENED.  HIS MOTIONS WERE GRANTED, AND VERY
EXTENSIVE EXCEPTIONS WERE FILED.  ORAL ARGUMENT OF THE EXCEPTIONS WAS
SUBSEQUENTLY HEARD.  NEITHER IN THE EXCEPTIONS NOR, APPARENTLY, IN THE
ORAL ARGUMENT DID THE SECRETARY SEEK TO REOPEN THE RECORD TO SUPPLEMENT
THE EVIDENCE BEFORE THE COMMISSION. 

THE COMMISSION'S DECISION, REJECTING THE SECRETARY'S SUGGESTIONS, WAS
ANNOUNCED ON FEBRUARY 5, 1964.  THE SECRETARY SOUGHT A REHEARING ON
MARCH 26, 1964, AND ONLY THEN DID HE ASK THAT THE RECORD BE REOPENED. 
HE OFFERED ONLY THE MOST GENERAL INDICATIONS OF THE EVIDENCE HE WOULD
INTRODUCE IF HIS MOTION WERE GRANTED.  NOT SURPRISINGLY, THE COMMISSION
DENIED THE MOTION, AND, AFTER CONSIDERATION OF VARIOUS "PLEADINGS,"
AFFIRMED, WITH CERTAIN MINOR MODIFICATIONS, ITS FIRST ORDER.  31 F.P.C.
1051.  THESE ACTIONS FOR REVIEW FOLLOWED.  THE SECRETARY, APPARENTLY
FOR THE FIRST TIME, ANNOUNCED IN HIS PETITION TO THIS COURT FOR A WRIT
OF CERTIORARI THAT HE WAS NOW PREPARED TO SEEK IMMEDIATE CONGRESSIONAL
APPROVAL FOR FEDERAL CONSTRUCTION OF A DAM AT HIGH MOUNTAIN SHEEP. 

FN5  SECTION 7(B) OF THE FEDERAL POWER ACT, 49 STAT. 842, 16 U.S.C.
SEC 800(B), REQUIRES THE COMMISSION TO REFUSE ANY APPLICATION WHEN IT
CONCLUDES THAT THE PROJECT SHOULD BE UNDERTAKEN BY THE UNITED STATES. 

FN6  IT MUST BE NOTED THAT NOTHING IN THE TERMS, PURPOSES, OR
LEGISLATIVE HISTORY OF THE ANADROMOUS FISH ACT OF 1965, 79 STAT. 1125,
SUGGESTS IN ANY WAY THAT IT WAS EXPECTED TO PROVIDE THE SECRETARY OR
THIS COURT WITH ANY RETROACTIVE "MANDATE" TO OVERTURN THE COMMISSION'S
JUDGMENT.  THE ONLY PERTINENT PORTIONS OF THE LEGISLATIVE HISTORY ARE
PLAIN AND UNCONTRADICTED ACKNOWLEDGMENTS FROM THE FEDERAL POWER
COMMISSION THAT THE ACT WOULD NOT "HAVE ANY EFFECT" ON ITS AUTHORITY. 
ANADROMOUS FISH, HEARINGS BEFORE THE SUBCOMMITTEE ON FISHERIES AND
WILDLIFE CONSERVATION OF THE HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES, 88TH CONG., 2D SESS., 45; H.R. REP. NO. 1007, 89TH CONG.,
1ST SESS., 21.  IRONICALLY, THE COMMISSION TWICE DURING THE COURSE OF
THOSE HEARINGS CALLED ATTENTION, WITHOUT ANY REJOINDER FROM THE
SECRETARY, TO THE HIGH MOUNTAIN SHEEP PROJECT AS AN ILLUSTRATION OF ITS
CONTINUING AND EARNEST CONCERN FOR THE PROTECTION OF ANADROMOUS FISH. 
HEARINGS, SUPRA, AT 45; REPORT, SUPRA, AT 22. 

FN7  CONTRARY TO HIS EARLIER POSITION, SUPRA, P. 452, THE SECRETARY,
AS HAS BEEN NOTED, NOW APPARENTLY ENTERTAINS NO DOUBT THAT THE PROJECT
SHOULD BE IMMEDIATELY COMMENCED. 
..END :





















COMMISSIONER V. ESTATE OF BOSCH 387 U.S. 456 


NO. 673.  ARGUED MARCH 22, 1967.  - DECIDED JUNE 5, 1967.* - NO. 673,
363 F.2D 1009, REVERSED AND REMANDED; NO. 240, 351 F.2D 489, AFFIRMED. 

*TOGETHER WITH NO. 240, SECOND NATIONAL BANK OF NEW HAVEN, EXECUTOR
V. UNITED STATES, ALSO ON CERTIORARI TO THE SAME COURT. 


WHERE FEDERAL ESTATE TAX LIABILITY TURNS UPON THE CHARACTER OF A
PROPERTY INTEREST HELD AND TRANSFERRED BY THE DECEDENT UNDER STATE LAW,
HELD, FEDERAL AUTHORITIES ARE NOT BOUND BY THE DETERMINATION MADE OF
SUCH PROPERTY INTEREST BY A STATE TRIAL COURT; IF THERE IS NO DECISION
BY THE STATE'S HIGHEST COURT FEDERAL AUTHORITIES MUST APPLY WHAT THEY
FIND TO BE THE STATE LAW AFTER GIVING "PROPER REGARD" TO RELEVANT
RULINGS OF OTHER COURTS OF THE STATE.  PP. 457, 462-466. 

COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF BOSCH. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE TWO FEDERAL ESTATE TAX CASES PRESENT A COMMON ISSUE FOR OUR
DETERMINATION:  WHETHER A FEDERAL COURT OR AGENCY IN A FEDERAL ESTATE
TAX CONTROVERSY IS CONCLUSIVELY BOUND BY A STATE TRIAL COURT
ADJUDICATION OF PROPERTY RIGHTS OR CHARACTERIZATION OF PROPERTY
INTERESTS WHEN THE UNITED STATES IS NOT MADE A PARTY TO SUCH
PROCEEDING. 

IN NO. 673, COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF BOSCH, 363
F.2D 1009, THE COURT OF APPEALS FOR THE SECOND CIRCUIT HELD THAT SINCE
THE STATE TRIAL COURT HAD "AUTHORITATIVELY DETERMINED" THE RIGHTS OF
THE PARTIES, IT WAS NOT REQUIRED TO DELVE INTO THE CORRECTNESS OF THAT
STATE COURT DECREE.  IN NO. 240, SECOND NATIONAL BANK OF NEW HAVEN,
EXECUTOR V. UNITED STATES, 351 F.2D 489, ANOTHER PANEL OF THE SAME
CIRCUIT HELD THAT THE "DECREES OF THE CONNECTICUT PROBATE COURT ...
UNDER NO CIRCUMSTANCES CAN BE CONSTRUED AS BINDING" ON A FEDERAL COURT
IN SUBSEQUENT LITIGATION INVOLVING FEDERAL REVENUE LAWS.  WHETHER THESE
CASES CONFLICT IN PRINCIPLE OR NOT, WHICH IS DISPUTED HERE, THERE DOES
EXIST A WIDESPREAD CONFLICT AMONG THE CIRCUITS  (FN1) OVER THE QUESTION
AND WE GRANTED CERTIORARI TO RESOLVE IT.  385 U.S. 966, 968.  WE HOLD
THAT WHERE THE FEDERAL ESTATE TAX LIABILITY TURNS UPON THE CHARACTER OF
A PROPERTY INTEREST HELD AND TRANSFERRED BY THE DECEDENT UNDER STATE
LAW, FEDERAL AUTHORITIES ARE NOT BOUND BY THE DETERMINATION MADE OF
SUCH PROPERTY INTEREST BY A STATE TRIAL COURT. 

                               I. 

(A)  NO. 673, COMMISSIONER V. ESTATE OF BOSCH. 

IN 1930, DECEDENT, A RESIDENT OF NEW YORK, CREATED A REVOCABLE TRUST
WHICH, AS AMENDED IN 1931, PROVIDED THAT THE INCOME FROM THE CORPUS WAS
TO BE PAID TO HIS WIFE DURING HER LIFETIME.  THE INSTRUMENT ALSO GAVE
HER A GENERAL POWER OF APPOINTMENT, IN DEFAULT OF WHICH IT PROVIDED
THAT HALF OF THE CORPUS WAS TO GO TO HIS HEIRS AND THE REMAINING HALF
WAS TO GO TO THOSE OF HIS WIFE.  IN 1951 THE WIFE EXECUTED AN
INSTRUMENT PURPORTING TO RELEASE THE GENERAL POWER OF APPOINTMENT AND
CONVERT IT INTO A SPECIAL POWER.  UPON DECEDENT'S DEATH IN 1957,
RESPONDENT, IN PAYING FEDERAL ESTATE TAXES, CLAIMED A MARITAL DEDUCTION
FOR THE VALUE OF THE WIDOW'S TRUST.  THE COMMISSIONER DETERMINED,
HOWEVER, THAT THE TRUST CORPUS DID NOT QUALIFY FOR THE DEDUCTION UNDER
SEC 2056(B)(5) (FN2) OF THE 1954 INTERNAL REVENUE CODE AND LEVIED A
DEFICIENCY.  RESPONDENT THEN FILED A PETITION FOR REDETERMINATION IN
THE TAX COURT.  THE ULTIMATE OUTCOME OF THE CONTROVERSY HINGED ON
WHETHER THE RELEASE EXECUTED BY MRS. BOSCH IN 1951 WAS INVALID - AS SHE
CLAIMED IT TO BE - IN WHICH CASE SHE WOULD HAVE ENJOYED A GENERAL POWER
OF APPOINTMENT AT HER HUSBAND'S DEATH AND THE TRUST WOULD THEREFORE
QUALIFY FOR THE MARITAL DEDUCTION.  WHILE THE TAX COURT PROCEEDING WAS
PENDING, THE RESPONDENT FILED A PETITION IN THE SUPREME COURT OF NEW
YORK FOR SETTLEMENT OF THE TRUSTEE'S ACCOUNT; IT ALSO SOUGHT A
DETERMINATION AS TO THE VALIDITY OF THE RELEASE UNDER STATE LAW.  THE
TAX COURT, WITH THE COMMISSIONER'S CONSENT, ABSTAINED FROM MAKING ITS
DECISION PENDING THE OUTCOME OF THE STATE COURT ACTION.  THE STATE
COURT FOUND THE RELEASE TO BE A NULLITY; THE TAX THEN ACCEPTED THE
STATE COURT JUDGMENT AS BEING AN "AUTHORITATIVE EXPOSITION OF NEW YORK
LAW AND ADJUDICATION OF THE PROPERTY RIGHTS INVOLVED," 43 T.C. 120,
124, AND PERMITTED THE DEDUCTION.  ON APPEAL, A DIVIDED COURT OF
APPEALS AFFIRMED.  IT HELD THAT "THE ISSUE IS  ...  NOT WHETHER THE
FEDERAL COURT IS 'BOUND BY' THE DECISION OF THE STATE TRIBUNAL, BUT
WHETHER OR NOT A STATE TRIBUNAL HAS AUTHORITATIVELY DETERMINED THE
RIGHTS UNDER STATE LAW OF A PARTY TO THE FEDERAL ACTION."  363 F.2D, AT
1013.  THE COURT CONCLUDED THAT THE "NEW YORK JUDGMENT, RENDERED BY A
COURT WHICH HAD JURISDICTION OVER PARTIES AND SUBJECT MATTER,
AUTHORITATIVELY SETTLED THE RIGHTS OF THE PARTIES, NOT ONLY FOR NEW
YORK, BUT ALSO FOR PURPOSES OF THE APPLICATION TO THOSE RIGHTS OF THE
RELEVANT PROVISIONS OF FEDERAL TAX LAW."   ID., AT 1014.  IT DECLARED
THAT SINCE THE STATE COURT HAD HELD THE WIFE TO HAVE A GENERAL POWER OF
APPOINTMENT UNDER ITS LAW, THE CORPUS OF THE TRUST QUALIFIED FOR THE
MARITAL DEDUCTION.  WE DO NOT AGREE AND REVERSE. 

(B)  NO. 240, SECOND NATIONAL BANK OF NEW HAVEN, EXECUTOR V. UNITED
STATES. 

PETITIONER IN THIS CASE IS THE EXECUTOR OF THE WILL OF ONE BREWSTER,
A RESIDENT OF CONNECTICUT WHO DIED IN SEPTEMBER OF 1958.  THE
DECEDENT'S WILL, TOGETHER WITH A CODICIL THERETO, WAS ADMITTED TO
PROBATE BY THE PROBATE COURT FOR THE DISTRICT OF HAMDEN, CONNECTICUT. 
THE WILL WAS EXECUTED IN 1958 AND DIRECTED THE PAYMENT "OUT OF MY
ESTATE MY JUST DEBTS AND FUNERAL EXPENSES AND ANY DEATH TAXES WHICH MAY
BE LEGALLY ASSESSED  ...  ."  IT FURTHER DIRECTED THAT THE "PROVISIONS
OF ANY STATUTE REQUIRING THE APPORTIONMENT OR PRORATION OF SUCH TAXES
AMONG THE BENEFICIARIES OF THIS WILL OR THE TRANSFEREES OF SUCH
PROPERTY, OR THE ULTIMATE PAYMENT OF SUCH TAXES BY THEM, SHALL BE
WITHOUT EFFECT IN THE SETTLEMENT OF MY ESTATE."  THE WILL ALSO PROVIDED
FOR CERTAIN BEQUESTS AND LEFT THE RESIDUE IN TRUST; ONE-THIRD OF THE
INCOME FROM SUCH TRUST WAS TO BE GIVEN TO DECEDENT'S WIFE FOR LIFE, AND
THE OTHER TWO-THIRDS FOR THE BENEFIT OF HIS GRANDCHILDREN THAT WERE
LIVING AT THE TIME OF HIS DEATH.   IN JULY OF 1958, THE DECEDENT
EXECUTED A CODICIL TO HIS WILL, THE PERTINENT PART OF WHICH GAVE HIS
WIFE A GENERAL TESTAMENTARY POWER OF APPOINTMENT OVER THE CORPUS OF THE
TRUST PROVIDED FOR HER.  THIS QUALIFIED IT FOR THE MARITAL DEDUCTION AS
PROVIDED BY THE INTERNAL REVENUE CODE OF 1954, SEC 2056(B)(5).  IN THE
FEDERAL ESTATE TAX RETURN FILED IN 1959, THE WIDOW'S TRUST WAS CLAIMED
AS PART OF THE MARITAL DEDUCTION AND THAT WAS COMPUTED AS ONE-THIRD OF
THE RESIDUE OF THE ESTATE BEFORE THE PAYMENT OF FEDERAL ESTATE TAXES. 
IT WAS THEN DEDUCTED, ALONG WITH OTHER DEDUCTIONS NOT INVOLVED HERE,
FROM THE TOTAL VALUE OF THE ESTATE AND THE ESTATE TAX WAS THEN COMPUTED
ON THE BASIS OF THE BALANCE.  THE COMMISSIONER DISALLOWED THE CLAIMED
DEDUCTION AND LEVIED A DEFICIENCY WHICH WAS BASED ON THE DENIAL OF THE
WIDOW'S ALLOWANCE AS PART OF THE MARITAL DEDUCTION AND THE REDUCTION OF
THE MARITAL DEDUCTION FOR THE WIDOW'S TRUST, BY REQUIRING THAT THE
EXTATE TAX BE CHARGED TO THE FULL ESTATE PRIOR TO THE DEDUCTION OF THE
WIDOW'S TRUST.  AFTER RECEIPT OF THE DEFICIENCY NOTICE, THE PETITIONER
FILED AN APPLICATION IN THE STATE PROBATE COURT TO DETERMINE, UNDER
STATE LAW, THE PRORATION OF THE FEDERAL ESTATE TAXES PAID.  NOTICE OF
SUCH PROCEEDING WAS GIVEN ALL INTERESTED PARTIES AND THE DISTRICT
DIRECTOR OF INTERNAL REVENUE.  THE GUARDIAN AD LITEM FOR THE MINOR
GRANDCHILDREN FILED A VERIFIED REPORT STATING THAT THERE WAS NO LEGAL
OBJECTION TO THE PRORATION OF THE FEDERAL ESTATE TAX AS SET OUT IN THE
APPLICATION OF THE EXECUTOR.  NEITHER THE ADULT GRANDCHILDREN NOR THE
DISTRICT DIRECTOR OF INTERNAL REVENUE FILED OR APPEARED IN THE PROBATE
COURT.  THE COURT THEN APPROVED THE APPLICATION, FOUND THAT THE
DECEDENT'S WILL DID NOT NEGATE THE APPLICATION OF THE STATE PRORATION
STATUTE AND ORDERED THAT THE ENTIRE FEDERAL TAX BE PRORATED AND CHARGED
AGAINST THE GRANDCHILDREN'S TRUST.  THIS INTERPRETATION ALLOWED THE
WIDOW A MARITAL DEDUCTION OF SOME $3,600,000 CLEAR OF ALL FEDERAL
ESTATE TAX.  THE COMMISSIONER, HOWEVER, SUBSEQUENTLY CONCLUDED THAT THE
RULING OF THE PROBATE COURT WAS ERRONEOUS AND NOT BINDING ON HIM, AND
HE ASSESSED A DEFICIENCY.  AFTER PAYMENT OF THE DEFICIENCY, PETITIONER
BROUGHT THIS SUIT IN THE UNITED STATES DISTRICT COURT FOR A REFUND.  ON
PETITIONER'S MOTION FOR SUMMARY JUDGMENT, THE GOVERNMENT CLAIMED THAT
THERE WAS A GENUINE ISSUE OF MATERIAL FACT, I.E., WHETHER THE PROBATE
PROCEEDINGS HAD BEEN ADVERSARY IN ANTURE.  THE DISTRICT COURT HELD THAT
THE "DECREES OF THE CONNECTICUT PROBATE COURT  ...  UNDER NO
CIRCUMSTANCES CAN BE CONSTRUED AS BINDING AND CONCLUSIVE UPON A FEDERAL
COURT IN CONSTRUING AND APPLYING THE FEDERAL REVENUE LAWS."  222 F.
SUPP. 446, 457.  THE COURT WENT ON TO HOLD THAT UNDER THE STANDARD
APPLIED BY THE STATE COURTS, THERE WAS NO "CLEAR AND UNAMBIGUOUS
DIRECTION AGAINST PRORATION," AND THAT THEREFORE THE STATE PRORATION
STATUTE APPLIED.  ID., AT 454.  THE COURT OF APPEALS REVERSED, HOLDING
THAT THE DECEDENT'S WILL "WOULD SEEM TO BE CLEAR AND UNAMBIGUOUS TO THE
EFFECT THAT TAXES WERE TO COME OUT OF HIS RESIDUAL ESTATE AND THAT
DESPITE ANY CONTRARY STATUTE THE TESTATOR SPECIFICALLY WISHED TO AVOID
ANY PRORATION."  351 F.2D, AT 491.  IT AGREED WITH THE DISTRICT COURT
THAT, IN ANY EVENT, THE JUDGMENT OF THE STATE PROBATE COURT WAS NOT
BINDING ON THE FEDERAL COURT. 

                 II. 

PETITIONER IN NO. 240 RAISES THE ADDITIONAL POINT THAT THE COURT OF
APPEALS WAS INCORRECT IN HOLDING THAT DECEDENT'S WILL CLEARLY NEGATED
THE APPLICATION OF THE STATE PRORATION STATUTE.  WHILE WE DID NOT LIMIT
THE GRANT OF CERTIORARI, WE AFFIRM WITHOUT DISCUSSION THE HOLDING OF
THE COURT OF APPEALS ON THE POINT.  THE ISSUE PRESENTS SOLELY A
QUESTION OF STATE LAW AND "WE ORDINARILY ACCEPT THE DETERMINATION OF
LOCAL LAW BY THE COURT OF APPEALS  ...  AND WE WILL NOT DISTURB IT
HERE."  RAGAN V. MERCHANTS TRANSFER CO., 337 U.S. 530, 534 (1949);
GENERAL BOX CO. V. UNITED STATES, 351 U.S. 159, 165 (1956); THE TUNGUS
V. SKOVGAARD, 358 U.S. 588, 596 (1959).  THE COURT OF APPEALS DID NOT
PASS ON THE CORRECTNESS OF THE RESOLUTION OF THE STATE LAW PROBLEM
INVOLVED IN BOSCH, NO. 673, AND IT IS REMANDED FOR THAT PURPOSE. 

        III. 

THE PROBLEM OF WHAT EFFECT MUST BE GIVEN A STATE TRIAL COURT DECREE
WHERE THE MATTER DECIDED THERE IS DETERMINATIVE OF FEDERAL ESTATE TAX
CONSEQUENCES HAS LONG BURDENED THE BAR AND THE COURTS.  THIS COURT HAS
NOT ADDRESSED ITSELF TO THE PROBLEM FOR NEARLY A THIRD OF A CENTURY. 
(FN3)  IN FREULER V. HELVERING, 291 U.S. 35 (1934), THIS COURT,
DECLINING TO FIND COLLUSION BETWEEN THE PARTIES ON THE RECORD AS
PRESENTED THERE, HELD THAT A PRIOR IN PERSONAM JUDGMENT IN THE STATE
COURT TO WHICH THE UNITED STATES WAS NOT MADE A PARTY, "OBVIOUSLY  ...
HAD NOT THE EFFECT OF RES JUDICATA, AND COULD NOT FURNISH THE BASIS FOR
INVOCATION OF THE FULL FAITH AND CREDIT CLAUSE  ...  ."  AT 43.  IN
FREULER'S WAKE, AT LEAST THREE POSITIONS HAVE EMERGED AMONG THE
CIRCUITS.  THE FIRST OF THESE HOLDS THAT 

"  ...  IF THE QUESTION AT ISSUE IS FAIRLY PRESENTED TO THE STATE
COURT FOR ITS INDEPENDENT DECISION AND IS SO DECIDED BY THE COURT THE
RESULTING JUDGMENT IF BINDING UPON THE PARTIES UNDER THE STATE LAW IS
CONCLUSIVE AS TO THEIR PROPERTY RIGHTS IN THE FEDERAL TAX CASE  ...
."  GALLAGHER V. SMITH, 223 F.2D 218, 225. 

THE OPPOSITE VIEW IS EXPRESSED IN FAULKERSON'S ESTATE V. UNITED
STATES, 301 F.2D 231.  THIS VIEW SEEMS TO APPROACH THAT OF ERIE R. CO.
V. TOMPKINS, 304 U.S. 64 (1938), IN THAT THE FEDERAL COURT WILL
CONSIDER ITSELF BOUND BY THE STATE COURT DECREE ONLY AFTER INDEPENDENT
EXAMINATION OF THE STATE LAW AS DETERMINED BY THE HIGHEST COURT OF THE
STATE.  THE GOVERNMENT URGES THAT AN INTERMEDIATE POSITION BE ADOPTED;
IT SUGGESTS THAT A STATE TRIAL COURT ADJUDICATION IS BINDING IN SUCH
CASES ONLY WHEN THE JUDGMENT IS THE RESULT OF AN ADVERSARY PROCEEDING
IN THE STATE COURT.  PIERPONT V. C.I.R., 336 F.2D 277.  ALSO SEE THE
DISSENT OF FRIENDLY, J., IN BOSCH, NO. 673. 

WE LOOK AT THE PROBLEM DIFFERENTLY.  FIRST, THE COMMISSIONER WAS NOT
MADE A PARTY TO EITHER OF THE STATE PROCEEDINGS HERE AND NEITHER HAD
THE EFFECT OF RES JUDICATA, FREULER V. HELVERING, SUPRA; NOR DID THE
PRINCIPLE OF COLLATERAL ESTOPPEL APPLY.  IT CAN HARDLY BE DENIED THAT
BOTH STATE PROCEEDINGS WERE BROUGHT FOR THE PURPOSE OF DIRECTLY
AFFECTING FEDERAL ESTATE TAX LIABILITY.  NEXT, IT MUST BE REMEMBERED
THAT IT WAS A FEDERAL TAXING STATUTE THAT THE CONGRESS ENACTED AND UPON
WHICH WE ARE HERE PASSING.  THEREFORE, IN CONSTRUING IT, WE MUST LOOK
TO THE LEGISLATIVE HISTORY SURROUNDING IT.  WE FIND THAT THE REPORT OF
THE SENATE FINANCE COMMITTEE RECOMMENDING ENACTMENT OF THE MARITAL
DEDUCTION USED VERY GUARDED LANGUAGE IN REFERRING TO THE VERY QUESTION
INVOLVED HERE.  IT SAID THAT "PROPER REGARD," NOT FINALITY, "SHOULD BE
GIVEN TO INTERPRETATIONS OF THE WILL" BY STATE COURTS AND THEN ONLY
WHEN ENTERED BY A COURT "IN A BONA FIDE ADVERSARY PROCEEDING."  S. REP.
NO. 1013, PT. 2, 80TH CONG., 2D SESS., 4.  WE CANNOT SAY THAT THE
AUTHORS OF THIS DIRECTIVE INTENDED THAT THE DECREES OF STATE TRIAL
COURTS WERE TO BE CONCLUSIVE AND BINDING ON THE COMPUTATION OF THE
FEDERAL ESTATE TAX AS LEVIED BY THE CONGRESS.  IF THE CONGRESS HAD
INTENDED STATE TRIAL COURT DETERMINATIONS TO HAVE THAT EFFECT ON THE
FEDERAL ACTIONS, IT CERTAINLY WOULD HAVE SAID SO - WHICH IT DID NOT DO.
ON THE CONTRARY, WE BELIEVE IT INTENDED THE MARITAL DEDUCTION TO BE
STRICTLY CONSTRUED AND APPLIED.  NOT ONLY DID IT INDICATE THAT ONLY
"PROPER REGARD" WAS TO BE ACCORDED STATE DECREES BUT IT PLACED SPECIFIC
LIMITATIONS ON THE ALLOWANCE OF THE DEDUCTION AS SET OUT IN SECS
2056(B), (C), AND (D).  THESE RESTRICTIVE LIMITATIONS CLEARLY INDICATE
THE GREAT CARE THAT CONGRESS EXERCISED IN THE DRAWING OF THE ACT AND
INDICATE ALSO A DEFINITE CONCERN WITH THE ELIMINATION OF LOOPHOLES AND
ESCAPE HATCHES THAT MIGHT JEOPARDIZE THE FEDERAL REVENUE.  THIS ALSO IS
IN KEEPING WITH THE LONG-ESTABLISHED POLICY OF THE CONGRESS, AS
EXPRESSED IN THE RULES OF DECISION ACT, 28 U.S.C. SEC 1652.  THERE IT
IS PROVIDED THAT IN THE ABSENCE OF FEDERAL REQUIREMENTS SUCH AS THE
CONSTITUTION OR ACTS OF CONGRESS, THE "LAWS OF THE SEVERAL STATES  ...
SHALL BE REGARDED AS RULES OF DECISION IN CIVIL ACTIONS IN THE COURTS
OF THE UNITED STATES, IN CASES WHERE THEY APPLY."  THIS COURT HAS HELD
THAT JUDICIAL DECISIONS ARE "LAWS OF THE  ...  STATE" WITHIN THE
CORP., 337 U.S. 541 (1949); KING V. ORDER OF TRAVELERS, 333 U.S. 153
(1948).  MOREOVER, EVEN IN DIVERSITY CASES THIS COURT HAS FURTHER HELD
THAT WHILE THE DECREES OF "LOWER STATE COURTS" SHOULD BE "ATTRIBUTED
SOME WEIGHT  ...  THE DECISION IS NOT CONTROLLING  ... ."  WHERE THE
HIGHEST COURT OF THE STATE HAS NOT SPOKEN ON THE POINT.  KING V. ORDER
OF TRAVELERS, SUPRA, AT 160-161.  AND IN WEST V. A.T.&.T. CO., 311 U.S.
223 (1940), THIS COURT FURTHER HELD THAT "AN INTERMEDIATE APPELLATE
STATE COURT  ...  IS A DATUM FOR ASCERTAINING STATE LAW WHICH IS NOT TO
BE DISREGARDED BY A FEDERAL COURT UNLESS IT IS CONVINCED BY OTHER
PERSUASIVE DATA THAT THE HIGHEST COURT OF THE STATE WOULD DECIDE
OTHERWISE."  AT 237.  THUS, UNDER SOME CONDITIONS, FEDERAL AUTHORITY
MAY NOT BE BOUND EVEN BY AN INTERMEDIATE STATE APPELLATE COURT RULING. 
IT FOLLOWS HERE THEN, THAT WHEN THE APPLICATION OF A FEDERAL STATUTE IS
INVOLVED, THE DECISION OF A STATE TRIAL COURT AS TO AN UNDERLYING ISSUE
OF STATE LAW SHOULD A FORTIORI NOT BE CONTROLLING.  THIS IS BUT AN
APPLICATION OF THE RULE OF ERIE R. CO. V. TOMPKINS, SUPRA, WHERE STATE
LAW AS ANNOUNCED BY THE HIGHEST COURT OF THE STATE IS TO BE FOLLOWED. 
THIS IS NOT A DIVERSITY CASE BUT THE SAME PRINCIPLE MAY BE APPLIED FOR
THE SAME REASON, VIZ., THE UNDERLYING SUBSTANTIVE RULE INVOLVED IS
BASED ON STATE LAW AND THE STATE'S HIGHEST COURT IS THE BEST AUTHORITY
ON ITS OWN LAW.  IF THERE BE NO DECISION BY THAT COURT THEN FEDERAL
AUTHORITIES MUST APPLY WHAT THEY FIND TO BE THE STATE LAW AFTER GIVING
"PROPER REGARD" TO RELEVANT RULINGS OF OTHER COURTS OF THE STATE.  IN
THIS RESPECT, IT MAY BE SAID TO BE, IN EFFECT, SITTING AS A STATE
COURT.  BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198 (1956). 

WE BELIEVE THAT THIS WOULD AVOID MUCH OF THE UNCERTAINTY THAT WOULD
RESULT FROM THE "NON-ADVERSARY" APPROACH AND AT THE SAME TIME WOULD BE
FAIR TO THE TAXPAYER AND PROTECT THE FEDERAL REVENUE AS WELL. 

THE JUDGMENT IN NO. 240 IS THEREFORE AFFIRMED WHILE THAT IN NO. 673
IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  ILLUSTRATIVE OF THE CONFLICT AMONG THE CIRCUITS ARE:  GALLAGHER
V. SMITH, 223 F.2D 218 (C.A. 3D CIR., 1955); FAULKERSON'S ESTATE V.
UNITED STATES, 301 F.2D 231 (C.A. 7TH CIR.), CERT. DENIED, 371 U.S. 887
(1962); PIERPONT V. C.I.R., 336 F.2D 277 (C.A. 4TH CIR., 1964), CERT.
DENIED, 380 U.S. 908 (1965). 

FN2  SECTION 2056(B)(5) OF THE INTERNAL REVENUE CODE OF 1954, 26
U.S.C. SEC 2056(B)(5), PROVIDES: 

"(5)  LIFE ESTATE WITH POWER OF APPOINTMENT IN SURVIVING SPOUSE: 

IN THE CASE OF AN INTEREST IN PROPERTY PASSING FROM THE DECEDENT, IF
HIS SURVIVING SPOUSE IS ENTITLED FOR LIFE TO ALL THE INCOME FROM THE
ENTIRE INTEREST,  ...  WITH POWER IN THE SURVIVING SPOUSE TO APPOINT
THE ENTIRE INTEREST,  ...  (EXERCISABLE IN FAVOR OF SUCH SURVIVING
SPOUSE, OR OF THE ESTATE OF SUCH SURVIVING SPOUSE, OR IN FAVOR OF
EITHER, WHETHER OR NOT IN EACH CASE THE POWER IS EXERCISABLE IN FAVOR
OF OTHERS), AND WITH NO POWER IN ANY OTHER PERSON TO APPOINT ANY PART
OF THE INTEREST, OR SUCH SPECIFIC PORTION, TO ANY PERSON OTHER THAN THE
SURVIVING SPOUSE: 

"(A)  THE INTEREST  ...  THEREOF SO PASSING SHALL, FOR PURPOSES OF
SUBSECTION (A), BE CONSIDERED AS PASSING TO THE SURVIVING SPOUSE, AND 

"(B)  NO PART OF THE INTEREST SO PASSING SHALL, FOR PURPOSES OF
PARAGRAPH (1)(A), BE CONSIDERED AS PASSING TO ANY PERSON OTHER THAN THE
SURVIVING SPOUSE. 

"THIS PARAGRAPH SHALL APPLY ONLY IF SUCH POWER IN THE SURVIVING
SPOUSE TO APPOINT THE ENTIRE INTEREST, OR SUCH SPECIFIC PORTION
THEREOF, WHETHER EXERCISABLE BY WILL OR DURING LIFE, IS EXERCISABLE BY
SUCH SPOUSE ALONE AND IN ALL EVENTS." 

FN3  IT MAY BE CLAIMED THAT BLAIR V. COMMISSIONER, 300 U.S. 5 (1937),
DEALT WITH THE PROBLEM PRESENTLY BEFORE US BUT THAT CASE INVOLVED THE
QUESTION OF THE EFFECT OF A PROPERTY RIGHT DETERMINATION BY A STATE
APPELLATE COURT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

AS THE COURT SAYS, THE ISSUE IN THESE CASES IS NOT WHETHER THE
COMMISSIONER IS "BOUND" BY THE STATE COURT DECREES.  HE WAS NOT A PARTY
TO THE STATE COURT PROCEEDINGS AND THEREFORE CANNOT BE BOUND IN THE
SENSE OF RES JUDICATA.  THE QUESTION SIMPLY IS WHETHER, ABSENT FRAUD OR
COLLUSION, A FEDERAL COURT CAN IGNORE A STATE COURT JUDGMENT WHEN
FEDERAL TAXATION DEPENDS UPON PROPERTY RIGHTS AND WHEN PROPERTY RIGHTS
REST ON STATE LAW, AS THEY DO HERE. 

SINCE OUR 1938 DECISION IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, AN
UNBROKEN LINE OF CASES HAS HELD THAT THE FEDERAL COURTS MUST LOOK TO
STATE LEGISLATION, STATE DECISIONS, STATE ADMINISTRATIVE PRACTICE, FOR
THE STATE LAW THAT IS TO BE APPLIED.  SEE, E.G., CITIES SERVICE OIL CO.
V. DUNLAP, 308 U.S. 208; BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198. 
THOSE WERE DIVERSITY CASES; AND IN THEM WE HAVE NEVER SUGGESTED THAT
THE FEDERAL COURT MAY IGNORE A RELEVANT STATE COURT DECISION BECAUSE IT
WAS NOT ENTERED BY THE HIGHEST STATE COURT.  INDEED, WE HAVE HELD THAT
THE FEDERAL COURT IS OBLIGATED TO FOLLOW THE DECISION OF A LOWER STATE
COURT IN THE ABSENCE OF DECISIONS OF THE STATE SUPREME COURT SHOWING
THAT THE STATE LAW IS OTHER THAN ANNOUNCED BY THE LOWER COURT.  SEE,
E.G., FIDELITY UNION TRUST CO. V. FIELD, 311 U.S. 169; WEST V. A.T.&T.
CO., 311 U.S. 223; SIX COMPANIES OF CALIFORNIA V. JOINT HIGHWAY
DISTRICT, 311 U.S. 180; STONER V. NEW YORK LIFE INS. CO., 311 U.S.
464. 

IT IS TRUE THAT IN KING V. ORDER OF TRAVELERS, 333 U.S. 153, WE HELD
THAT A FEDERAL COURT OF APPEALS DID NOT HAVE TO ACCEPT THE DECISION OF
A STATE COURT OF COMMON PLEAS ON A MATTER OF STATE LAW.  BUT THAT CASE
WAS UNIQUE.  THE STATE COURT HAD RELIED UPON THE DECISION OF A FEDERAL
DISTRICT COURT; THE "COURT OF COMMON PLEAS (DID) NOT APPEAR TO HAVE
SUCH IMPORTANCE AND COMPETENCE WITHIN (THE STATE'S) OWN JUDICIAL SYSTEM
THAT ITS DECISIONS SHOULD BE TAKEN AS AUTHORITATIVE EXPOSITIONS OF THE
STATE'S 'LAW'" (ID., AT 161); "THE DIFFICULTY OF LOCATING COMMON PLEAS
DECISIONS (WAS) A MATTER OF GREAT PRACTICAL SIGNIFICANCE" (IBID.);
ANOTHER STATE COURT HAD HANDED DOWN AN OPINION REJECTING THE REASONING
OF THE COURT OF COMMON PLEAS AND ESPOUSING THE REASONING OF THE COURT
OF APPEALS, ILLUSTRATING "THE PERILS OF INTERPRETING A COMMON PLEAS
DECISION AS A DEFINITIVE EXPRESSION OF (STATE LAW)" (333 U.S., AT 162);
AND THE INTERPRETATION OF THE COURT OF APPEALS, WHICH REJECTED THE
DECISION OF THE COURT OF COMMON PLEAS, WAS STRONGLY SUPPORTED BY THE
DECISIONS OF THE STATE SUPREME COURT.  WE STRESSED THAT OUR DECISION
WAS NOT "TO BE TAKEN AS PROMULGATING A GENERAL RULE THAT FEDERAL COURTS
NEED NEVER ABIDE BY DETERMINATIONS OF STATE LAW BY STATE TRIAL
COURTS."  IBID. 

EVEN BEFORE IT WAS HELD THAT FEDERAL COURTS MUST APPLY STATE LAW IN
DIVERSITY CASES, IT WAS INCUMBENT UPON FEDERAL COURTS TO TAKE STATE LAW
FROM STATE COURT DECISIONS WHEN FEDERAL TAX CONSEQUENCES TURNED ON
STATE LAW.  IN FREULER V. HELVERING, 291 U.S. 35, THE TRUSTEE UNDER A
DECEDENT'S WILL HAD INCLUDED IN INCOME DISTRIBUTED TO THE LIFE
BENEFICIARIES AMOUNTS REPRESENTING DEPRECIATION OF THE CORPUS.  THE
LIFE BENEFICIARIES DID NOT INCLUDE THE AMOUNTS CONSTITUTING
DEPRECIATION AND THE COMMISSIONER ASSERTED A DEFICIENCY.  WHILE THE
CASE WAS ON APPEAL TO THE BOARD OF TAX APPEALS, THE TRUSTEE FILED AN
ACCOUNTING IN THE STATE PROBATE COURT, REQUESTING ITS APPROVAL.   THE
STATE COURT HELD THAT THE LIFE BENEFICIARIES WERE NOT ENTITLED TO THE
DISTRIBUTION OF DEPRECIATION OF THE CORPUS, AND ORDERED THAT THE LIFE
BENEFICIARIES REPAY THE TRUSTEE FOR THE AMOUNT IMPROPERLY DISTRIBUTED
TO THEM.  IN THE TAX LITIGATION, THE COURT OF APPEALS IGNORED THE STATE
COURT DETERMINATION ON THE GROUND THAT "NO ORDERS OF THE PROBATE COURT,
THE EFFECT OF WHICH WOULD RELATE TO WHAT ARE DEDUCTIONS TO BE ALLOWED
UNDER THE NATIONAL INCOME TAXING LAW, ARE CONCLUSIVE AND BINDING ON THE
FEDERAL COURTS  ...  ."  62 F.2D 733, 735.  THE COURT REVERSED, HOLDING
THAT THE PROBATE COURT ORDER WAS AN ORDER GOVERNING DISTRIBUTION WITHIN
SEC 219 OF THE REVENUE ACT OF 1921.  IT WENT ON TO SAY: 

"MOREOVER, THE DECISION OF (THE PROBATE) COURT, UNTIL REVERSED OR
OVERRULED, ESTABLISHES THE LAW OF CALIFORNIA RESPECTING DISTRIBUTION OF
THE TRUST ESTATE.  IT IS NONE THE LESS A DECLARATION OF THE LAW OF THE
STATE BECAUSE NOT BASED ON A STATUTE, OR EARLIER DECISIONS.  THE RIGHTS
OF THE BENEFICIARIES ARE PROPERTY RIGHTS AND THE COURT HAS ADJUDICATED
THEM.  WHAT THE LAW AS ANNOUNCED BY THAT COURT ADJUDGES DISTRIBUTABLE
IS, WE THINK, TO BE SO CONSIDERED IN APPLYING SEC 219 OF THE ACT OF
1921."  291 U.S., AT 45. 

THE ISSUE OF THE EFFECT OF A STATE COURT DETERMINATION CAME UP AGAIN
IN BLAIR V. COMMISSIONER, 300 U.S. 5.  THE ISSUE IN THAT CASE WAS
WHETHER A BENEFICIARY HAD EFFECTIVELY ASSIGNED INCOME FROM A TRUST.  IN
PRIOR TAX LITIGATION, A FEDERAL COURT HELD THAT THE TRUST WAS A
SPENDTHRIFT TRUST AND THAT, THEREFORE, THE ASSIGNMENTS WERE INVALID AND
THE INCOME TAXABLE TO THE BENEFICIARY.  THE TRUSTEES THEN BROUGHT AN
ACTION IN THE STATE COURT; THE STATE COURTS DETERMINED THAT THE TRUST
WAS NOT A SPENDTHRIFT TRUST AND THAT THE ASSIGNMENTS WERE VALID.  THE
BOARD OF TAX APPEALS ACCEPTED THE DECISION OF THE STATE COURT AND
REJECTED THE COMMISSIONER'S CLAIM THAT PETITIONER WAS LIABLE FOR TAX ON
THE INCOME.  THE COURT REJECTED THE COMMISSIONER'S ARGUMENT THAT THE
TRUST WAS A SPENDTHRIFT TRUST, NOTING THAT: 

"THE QUESTION OF THE VALIDITY OF THE ASSIGNMENTS IS A QUESTION OF
LOCAL LAW  ...  .  BY THAT LAW THE CHARACTER OF THE TRUST, THE NATURE
AND EXTENT OF THE INTEREST OF THE BENEFICIARY, AND THE POWER OF THE
BENEFICIARY TO ASSIGN THAT INTEREST IN WHOLE OR IN PART, ARE TO BE
DETERMINED.  THE DECISION OF THE STATE COURT UPON THESE QUESTIONS IS
FINAL  ...  .  IT MATTERS NOT THAT THE DECISION WAS BY AN INTERMEDIATE
APPELLATE COURT  ...  .  IN THIS INSTANCE, IT IS NOT NECESSARY TO GO
BEYOND THE OBVIOUS POINT THAT THE DECISION WAS IN A SUIT BETWEEN THE
TRUSTEES AND THE BENEFICIARY AND HIS ASSIGNEES, AND THE DECREE WHICH
WAS ENTERED IN PURSUANCE OF THE DECISION DETERMINED AS BETWEEN THESE
PARTIES THE VALIDITY OF THE PARTICULAR ASSIGNMENTS.  NOR IS THERE ANY
BASIS FOR A CHARGE THAT THE SUIT WAS COLLUSIVE AND THE DECREE
INOPERATIVE  ...  .  THE TRUSTEES WERE ENTITLED TO SEEK THE
INSTRUCTIONS OF THE COURT HAVING SUPERVISION OF THE TRUST.  THAT COURT
ENTERTAINED THE SUIT AND THE APPELLATE COURT, WITH THE FIRST DECISION
OF THE CIRCUIT COURT OF APPEALS BEFORE IT, REVIEWED THE DECISIONS OF
THE SUPREME COURT OF THE STATE AND REACHED A DELIBERATE CONCLUSION.  TO
DEROGATE FROM THE AUTHORITY OF THAT CONCLUSION AND OF THE DECREE IT
COMMANDED, SO FAR AS THE QUESTION IS ONE OF STATE LAW, WOULD BE WHOLLY
UNWARRANTED IN THE EXERCISE OF FEDERAL JURISDICTION. 

"IN THE FACE OF THIS RULING OF THE STATE COURT IT IS NOT OPEN TO THE
GOVERNMENT TO ARGUE THAT THE TRUST 'WAS, UNDER THE (STATE) LAW, A
SPENDTHRIFT TRUST.'  THE POINT OF THE ARGUMENT IS THAT, THE TRUST BEING
OF THAT CHARACTER, THE STATE LAW BARRED THE VOLUNTARY ALIENATION BY THE
BENEFICIARY OF HIS INTEREST.  THE STATE COURT HELD PRECISELY THE
CONTRARY."  ID., 9-10. 

I WOULD ADHERE TO FREULER V. HELVERING, SUPRA, AND BLAIR V.
COMMISSIONER, SUPRA.  THERE WAS NO INDICATION IN THOSE CASES THAT THE
STATE COURT DECISION WOULD NOT BE FOLLOWED IF IT WAS NOT FROM THE
HIGHEST STATE COURT. 

THE IDEA THAT THESE STATE PROCEEDINGS ARE NOT TO BE RESPECTED
REFLECTS THE PREMISE THAT SUCH PROCEEDINGS ARE BROUGHT SOLELY TO AVOID
FEDERAL TAXES.  BUT THERE ARE SOME INSTANCES IN WHICH AN ADVERSARY
PROCEEDING IS IMPOSSIBLE (SEE, E.G., ESTATE OF DARLINGTON V.
COMMISSIONER, 302 F.2D 693; BRAVERMAN & GERSON, THE CONCLUSIVENESS OF
STATE COURT DECREES IN FEDERAL TAX LITIGATION, 17 TAX L. REV. 545, 570
572 (1962)), AND MANY INSTANCES IN WHICH THE PARTIES DESIRE A
DETERMINATION OF THEIR RIGHTS FOR OTHER THAN TAX REASONS. 

NOT GIVING EFFECT TO A STATE COURT DETERMINATION MAY BE UNFAIR TO THE
TAXPAYER AND IS CONTRARY TO THE CONGRESSIONAL PURPOSE OF MAKING FEDERAL
TAX CONSEQUENCES DEPEND UPON RIGHTS UNDER STATE LAW.  THE RESULT WILL
BE TO TAX THE TAXPAYER OR HIS ESTATE FOR BENEFITS WHICH HE DOES NOT
HAVE UNDER STATE LAW.  THIS ASPECT IS EMPHASIZED IN BLAIR V.
COMMISSIONER, SUPRA, WHERE THE GOVERNMENT ATTEMPTED TO TAX THE TAXPAYER
FOR INCOME TO WHICH HE HAD NO RIGHT UNDER STATE LAW.  IN SECOND
NATIONAL BANK V. UNITED STATES, THE GRANDCHILDREN'S TRUSTS WILL BE
ASSESSED FOR THE ESTATE TAXES, SINCE THE STATE COURT HELD THAT THE
PRORATION STATUTE APPLIED; BUT THE ESTATE TAX WILL BE COMPUTED AS IF
THE PRORATION STATUTE DID NOT APPLY - THE MARITAL DEDUCTION WILL BE
DECREASED AND THE TAX INCREASED.  OR TAKE THE CASE WHERE A STATE COURT
DETERMINES THAT X DOES NOT OWN A HOUSE.  AFTER X DIES, A FEDERAL COURT
DETERMINES THAT THE STATE COURT WAS WRONG AND THAT X OWNED THE HOUSE,
AND IT MUST BE INCLUDED IN HIS GROSS ESTATE EVEN THOUGH IT DOES NOT
PASS TO HIS HEIRS.  I CANNOT BELIEVE THAT CONGRESS INTENDED SUCH UNJUST
RESULTS. 

THIS IS NOT TO SAY THAT A FEDERAL COURT IS BOUND BY ALL STATE COURT
DECREES.  A FEDERAL COURT MIGHT NOT BE BOUND BY A CONSENT DECREE, FOR
IT DOES NOT PURPORT TO BE A DECLARATION OF STATE LAW; IT MAY BE MERELY
A JUDICIAL STAMP PLACED UPON THE PARTIES' CONTRACTUAL SETTLEMENT.  NOR
NEED THE FEDERAL COURT DEFER TO A STATE COURT DECREE WHICH HAS BEEN
OBTAINED BY FRAUD OR COLLUSION.  BUT WHERE, ABSENT THOSE
CONSIDERATIONS, A STATE COURT HAS REACHED A DELIBERATE CONCLUSION,
WHERE IT HAS CONSTRUED STATE LAW, THE FEDERAL COURT SHOULD CONSIDER THE
DECISION TO BE AN EXPOSITION OF THE CONTROLLING STATE LAW AND GIVE IT
EFFECT AS SUCH.    MR. JUSTICE HARLAN, WHOM MR. JUSTICE FORTAS JOINS,
DISSENTING. 

THE CENTRAL ISSUE PRESENTED BY THESE TWO CASES IS WHETHER AND IN WHAT
CIRCUMSTANCES A JUDGMENT OF A LOWER STATE COURT IS ENTITLED TO
CONCLUSIVENESS IN A SUBSEQUENT FEDERAL PROCEEDING, IF THE STATE
JUDGMENT ESTABLISHES PROPERTY RIGHTS FROM WHICH STEM FEDERAL TAX
CONSEQUENCES.  THE ISSUE IS DOUBLY IMPORTANT: IT IS A DIFFICULT AND
INTENSELY PRACTICAL PROBLEM, AND IT INVOLVES BASIC QUESTIONS OF THE
PROPER RELATIONSHIP IN THIS CONTEXT BETWEEN THE STATE AND FEDERAL
JUDICIAL SYSTEMS.  FOR REASONS WHICH FOLLOW, I AM CONSTRAINED TO
DISSENT FROM THE RESOLUTION REACHED BY THE COURT IN BOTH CASES. 

            I. 

IT IS USEFUL FIRST TO SUMMARIZE THE LEGAL AND FACTUAL CIRCUMSTANCES
OUT OF WHICH THESE CASES AROSE. 

IN NO. 240, SECOND NATIONAL BANK, THE DECEDENT'S WILL AND CODICIL
PROVIDED THAT ONE-THIRD OF THE RESIDUARY ESTATE SHOULD BE HELD IN TRUST
FOR THE DECEDENT'S WIDOW, WHO WAS GIVEN A GENERAL TESTAMENTARY POWER OF
APPOINTMENT OVER THE CORPUS, AND THAT THE BALANCE SHOULD BE HELD IN
SEPARATE TRUSTS FOR HIS NINE GRANDCHILDREN.  THE WIDOW'S TRUST WAS
PLAINLY WITHIN THE TERMS OF THE MARITAL DEDUCTION PROVIDED BY SEC
2056(B)(5) OF THE INTERNAL REVENUE CODE OF 1954; THE ISSUE IN THIS
INSTANCE THUS SIMPLY INVOLVES DETERMINATION OF THE AMOUNT OF THIS
TRUST, AND HENCE THE AMOUNT OF THE MARITAL DEDUCTION.  UNDER
CONNECTICUT'S TAX-PRORATION STATUTE, CONN. GEN. STAT. REV. SEC 12-401,
A BEQUEST EXEMPT FROM ESTATE TAX, AS HERE BY REASON OF THE FEDERAL
MARITAL DEDUCTION, IS NOT REDUCED BY ANY PORTION OF SUCH TAX. 
ACCORDINGLY, IF THE PRORATION STATUTE IS APPLICABLE TO THIS DECEDENT'S
WILL, THE WIDOW'S TRUST WOULD BEAR NO PART OF THE FEDERAL ESTATE TAX,
AND ITS ENTIRE BURDEN WOULD INSTEAD FALL UPON THE GRANDCHILDREN'S
TRUSTS.  THE AMOUNT OF THE MARITAL DEDUCTION WOULD BE CORRESPONDINGLY
INCREASED. 

BY ITS TERMS, THE STATE PRORATION STATUTE IS TO BE APPLIED UNLESS THE
"TESTATOR OTHERWISE DIRECTS."  ARTICLE I OF THE DECEDENT'S WILL
PROVIDED, WITHOUT APPARENT AMBIGUITY, THAT THE "PROVISIONS OF ANY
STATUTE REQUIRING THE APPORTIONMENT OR PRORATION OF (ESTATE) TAXES  ...
SHALL BE WITHOUT EFFECT IN THE SETTLEMENT OF MY ESTATE."  NONETHELESS,
THE EXECUTOR, PETITIONER HERE, CONTENDED TO THE COMMISSIONER THAT THE
STATUTE WAS APPLICABLE, AND, UPON RECEIPT OF THE 30-DAY DEFICIENCY
LETTER,  (FN1) APPLIED TO THE PROBATE COURT FOR THE DISTRICT OF HAMDEN,
CONNECTICUT, FOR A DETERMINATION THAT THE ESTATE TAXES SHOULD BE
APPORTIONED UNDER THE TERMS OF THE STATE STATUTE.  NOTICE OF THE
APPLICATION WAS GIVEN TO THE DISTRICT DIRECTOR OF INTERNAL REVENUE,
BUT, IN ACCORD WITH THE SERVICE'S CONSISTENT POSITION WITH REFERENCE TO
SUCH STATE PROCEEDINGS, MIM.  6134, APR. 3, 1947, 1947 CCH FED. TAX
REP. PARA 6137, NO APPEARANCE WAS ENTERED IN HIS BEHALF. 

APART FROM THE EXECUTOR'S APPLICATION, THE PROBATE COURT HAD THE
BENEFIT ONLY OF ARGUMENT FROM THE GUARDIAN AD LITEM OF THE
GRANDCHILDREN; THE GUARDIAN ACKNOWLEDGED THAT PRORATION UNDER THE
STATUTE WOULD PLACE THE BURDEN OF THE ESTATE TAX ENTIRELY UPON HIS
WARDS' TRUSTS, BUT NEVERTHELESS CONCLUDED THAT HE HAD "NO OBJECTION" TO
THE EXECUTOR'S APPLICATION.  THE COURT, FILING A WRITTEN OPINION,
DETERMINED THAT THE DECEDENT'S DISCLAIMER OF THE STATUTE WAS AMBIGUOUS,
AND THEREFORE CONCLUDED THAT THE STATUTE WAS APPLICABLE.  PETITIONER
THEREUPON PAID THE ASSESSED DEFICIENCY, AND BROUGHT THIS SUIT FOR A
REFUND.  THE DISTRICT COURT AND THE COURT OF APPEALS BOTH CONCLUDED
THAT, BECAUSE OF THE CHARACTER OF CONNECTICUT'S PROBATE COURT SYSTEM,
(FN2) THE STATE JUDGMENT WAS NOT CONCLUSIVE OF THE APPLICABILITY OF THE
PRORATION STATUTE.  222 F. SUPP. 446; 351 F.2D 489. 

IN NO. 673, ESTATE OF BOSCH, THE DECEDENT CREATED IN 1930 A REVOCABLE
INTER VIVOS TRUST IN FAVOR OF HIS WIFE, WHICH ALSO GRANTED TO HER A
GENERAL TESTAMENTARY POWER OF APPOINTMENT OVER THE CORPUS.  IN 1951,
THE DECEDENT'S WIFE, IN ORDER TO TAKE ADVANTAGE OF THE POWERS OF
APPOINTMENT ACT OF 1951, 65 STAT. 91, EXECUTED AN INSTRUMENT WHICH
PURPORTEDLY CONVERTED THE GENERAL POWER INTO A SPECIAL POWER OF
APPOINTMENT.  UPON THE DECEDENT'S DEATH IN 1957, HIS EXECUTOR SOUGHT A
MARITAL DEDUCTION FOR THE AMOUNT OF THE INTER VIVOS TRUST; UNDER SEC
2056(B)(5), THE TRUST WOULD QUALIFY FOR THE DEDUCTION ONLY IF THE
DECEDENT'S WIFE HELD AT HIS DEATH A GENERAL POWER OF APPOINTMENT OVER
THE CORPUS. 

THE COMMISSIONER, ON THE BASIS OF THE RELEASE SIGNED IN 1951 BY THE
WIDOW, DISALLOWED THE DEDUCTION, BUT THE EXECUTOR SOUGHT FROM THE TAX
COURT A REDETERMINATION OF THE RESULTING DEFICIENCY.   WHILE THE TAX
COURT PROCEEDING WAS STILL PENDING, THE EXECUTOR PETITIONED IN THE NEW
YORK SUPREME COURT FOR A DETERMINATION UNDER STATE LAW OF THE VALIDITY
OF THE 1951 RELEASE.  THE TAX COURT, WITH THE COMMISSIONER'S ASSENT,
TEMPORARILY SUSPENDED ITS PROCEEDING.  IN THE STATE COURT, EACH OF THE
THREE PARTIES - THE TRUSTEE, THE WIDOW, AND THE GUARDIAN AD LITEM OF AN
INFANT WHO WAS A POSSIBLE BENEFICIARY - CONTENDED THAT THE RELEASE WAS
A NULLITY.  THE STATE COURT ADOPTED THEIR UNANIMOUS VIEW.  THE TAX
COURT THEREUPON ACCEPTED THE STATE TRIAL COURT DECISION AS AN
"AUTHORITATIVE EXPOSITION" OF THE REQUIREMENTS OF STATE LAW.  43 T.C.
120.  A DIVIDED COURT OF APPEALS AFFIRMED.  363 F.2D 1009. 

             II. 

THE ISSUE HERE, DESPITE ITS IMPORTANCE IN GENERAL, IS ESSENTIALLY
QUITE A NARROW ONE.  THE QUESTIONS OF LAW UPON WHICH TAXATION TURNS IN
THESE CASES ARE NOT AMONG THOSE FOR WHICH FEDERAL DEFINITIONS OR
STANDARDS HAVE BEEN PROVIDED; COMPARE BURNET V. HARMEL, 287 U.S. 103,
110; HEINER V. MELLON, 304 U.S. 271, 279; LYETH V. HOEY, 305 U.S. 188,
194; IT IS, ON THE CONTRARY, ACCEPTED THAT FEDERAL TAX CONSEQUENCES
HAVE HERE BEEN IMPOSED BY CONGRESS ON PROPERTY RIGHTS AS THOSE RIGHTS
HAVE BEEN DEFINED AND DELIMITED BY THE PERTINENT STATE LAWS.  THE
FEDERAL REVENUE INTEREST THUS CONSISTS ENTIRELY OF THE EXPECTATION THAT
THE ABSENCE OR PRESENCE OF THE RIGHTS WILL BE DETERMINED ACCURATELY IN
ACCORDANCE WITH THE PREVAILING STATE RULES.  THE QUESTION HERE IS,
HOWEVER, NOT HOW STATE LAW MUST IN THE CONTEXT OF FEDERAL TAXATION
ORDINARILY BE DETERMINED; IT IS INSTEAD THE MORE NARROW ONE OF WHETHER
AND UNDER WHAT CONDITIONS A LOWER STATE COURT ADJUDICATION OF A
TAXPAYER'S PROPERTY RIGHTS IS CONCLUSIVE WHEN SUBSEQUENTLY THE FEDERAL
TAX CONSEQUENCES OF THOSE RIGHTS ARE AT ISSUE IN A FEDERAL COURT. 

THE PROBLEM MAY NOT, AS THE COURT PROPERLY OBSERVES, BE RESOLVED BY
REFERENCE TO THE PRINCIPLES OF RES JUDICATA OR COLLATERAL ESTOPPEL, SEE
GENERALLY CROMWELL V. COUNTY OF SAC, 94 U.S. 351, 352-353; THE REVENUE
SERVICE HAS NOT, AND PROPERLY NEED NOT HAVE, ENTERED AN APPEARANCE IN
EITHER OF THE STATE COURT PROCEEDINGS IN QUESTION HERE.  NOR DO THE
PERTINENT PROVISIONS OF THE REVENUE LAWS, OR THEIR LEGISLATIVE HISTORY,
PROVIDE AN ADEQUATE GUIDE TO THE SOLUTION OF THE PROBLEM; THE ONLY
DIRECT REFERENCE IN THAT LENGTHY HISTORY RELEVANT TO THESE QUESTIONS IS
IMPRECISE AND EQUIVOCAL.  (FN3) THE CASES IN THIS COURT ARE SCARCELY
MORE REVEALING; THEY ARE, AS JUDGE FRIENDLY REMARKED BELOW, "CRYPTIC"
AND "RATHER DATED."  363 F.2D 1009, 1015. 

IT IS, OF COURSE, PLAIN THAT THE RULES OF DECISION ACT, 28 U.S.C. SEC
1652, IS APPLICABLE HERE, AS IT IS, BY ITS TERMS, TO ANY SITUATION IN
WHICH A FEDERAL COURT MUST ASCERTAIN AND APPLY THE LAW OF ANY OF THE
SEVERAL STATES.  NOR MAY IT BE DOUBTED THAT THE JUDGMENTS OF STATE
COURTS MUST BE ACCEPTED AS A PART OF THE STATE LAW TO WHICH THE ACT
GIVES FORCE IN FEDERAL COURTS, ERIE R. CO. V. TOMPKINS, 304 U.S. 64; IT
IS NOT, FOR THAT PURPOSE, MATERIAL WHETHER THE JURISDICTION OF THE
FEDERAL COURT IN A PARTICULAR CASE IS FOUNDED UPON DIVERSITY OF
CITIZENSHIP OR INVOLVES A QUESTION ARISING UNDER THE LAWS OF THE UNITED
STATES.  (FN4)  THIS NEED NOT MEAN, HOWEVER, THAT EVERY STATE JUDGMENT
MUST BE ACCEPTED BY FEDERAL COURTS AS CONCLUSIVE OF STATE LAW.  THE
COURT HAS, FOR EXAMPLE, NEVER HELD, EVEN IN DIVERSITY CASES, WHERE THE
FEDERAL INTEREST CONSISTS AT MOST IN AFFORDING A "NEUTRAL" FORUM, THAT
THE JUDGMENTS OF STATE TRIAL COURTS MUST IN ALL CASES BE TAKEN AS
CONCLUSIVE STATEMENTS OF STATE LAW; (FN5) APART FROM A SERIES OF CASES
DECIDED AT THE 1940 TERM,  (FN6) THE COURT HAS CONSISTENTLY
ACKNOWLEDGED THAT THE CHARACTER BOTH OF THE STATE PROCEEDING AND OF THE
STATE COURT ITSELF MAY BE RELEVANT IN DETERMINING A JUDGMENT'S
CONCLUSIVENESS AS A STATEMENT OF STATE LAW.  (FN7)  THIS SAME RESULT
MUST SURELY FOLLOW A FORTIORI IN CASES IN WHICH THE APPLICATION OF A
FEDERAL STATUTE IS AT ISSUE. 

SIMILARLY, IT IS DIFFICULT TO SEE WHY THE FORMULA NOW ORDINARILY
EMPLOYED TO DETERMINE STATE LAW IN DIVERSITY CASES - ESSENTIALLY THAT,
ABSENT A RECENT JUDGMENT OF THE STATE'S HIGHEST COURT, STATE CASES ARE
ONLY DATA FROM WHICH THE LAW MUST BE DERIVED - IS NECESSARILY
APPLICABLE WITHOUT MODIFICATION IN ALL SITUATIONS IN WHICH FEDERAL
COURTS MUST ASCERTAIN STATE LAW.  THE RELATIONSHIP BETWEEN THE STATE
AND FEDERAL JUDICIAL SYSTEMS IS SIMPLY TOO DELICATE AND IMPORTANT TO BE
REDUCED TO ANY SINGLE STANDARD.  SEE HILL, THE ERIE DOCTRINE IN
BANKRUPTCY, 66 HARV. L. REV. 1013; NOTE, THE COMPETENCE OF FEDERAL
COURTS TO FORMULATE RULES OF DECISION, 77 HARV. L. REV. 1084.  COMPARE,
E.G., MORGAN V. COMMISSIONER, 309 U.S. 78, 80-81; CARDOZO, FEDERAL
TAXES AND THE RADIATING POTENCIES OF STATE COURT DECISIONS, 51 YALE
L.J. 783.  THE INADEQUACY OF THIS FORMULA IS PARTICULARLY PATENT HERE,
WHERE, UNLIKE THE CASES IN WHICH IT WAS DERIVED, THE FEDERAL COURT IS
CONFRONTED BY PRECISELY THE LEGAL AND FACTUAL CIRCUMSTANCES UPON WHICH
THE STATE COURT HAS ALREADY PASSED. 

ACCORDINGLY, ALTHOUGH THE RULES OF DECISION ACT AND THE ERIE DOCTRINE
PLAINLY OFFER RELEVANT GUIDANCE TO THE APPROPRIATE RESULT HERE, THEY
CAN SCARCELY BE SAID TO DEMAND ANY SINGLE CONCLUSION. 

                                       III. 

GIVEN THE INCONCLUSIVENESS OF THESE SOURCES, IT IS ESSENTIAL TO
APPROACH THESE QUESTIONS IN TERMS OF THE VARIOUS STATE AND FEDERAL
INTERESTS FUNDAMENTALLY AT STAKE.  IT SUFFICES FOR PRESENT PURPOSES
SIMPLY TO INDICATE THE PERTINENT FACTORS.  ON ONE SIDE ARE CERTAIN OF
THE PRINCIPLES WHICH ULTIMATELY ARE THE WELLSPRINGS BOTH OF THE RULES
OF DECISION ACT AND OF THE ERIE DOCTRINE.  FIRST AMONG THOSE IS THE
EXPECTATION THAT SCRUPULOUS ADHERENCE BY FEDERAL COURTS TO THE
PROVISIONS OF STATE LAW, AS REFLECTED BOTH IN LOCAL STATUTES AND IN
STATE COURT DECISIONS, WILL PROMOTE AN APPROPRIATE UNIFORMITY IN THE
ADMINISTRATION OF LAW WITHIN EACH OF THE STATES.  UNIFORMITY WILL, IN
TURN, ASSURE PROPER REGARD IN THE FEDERAL COURTS FOR THE AREAS OF LAW
LEFT BY THE CONSTITUTION TO STATE DISCRETION AND ADMINISTRATION, AND,
IN ADDITION, WILL PREVENT THE INCONGRUITY THAT STEMS FROM DISSIMILAR
TREATMENT BY STATE AND FEDERAL COURTS OF THE SAME OR SIMILAR FACTUAL
SITUATIONS.  FINALLY, IT MUST BE ACKNOWLEDGED THAT STATE COURTS ARE
UNQUESTIONABLY BETTER POSITIONED TO MEASURE THE REQUIREMENTS OF THEIR
OWN LAWS; EVEN THE LOWEST STATE COURT POSSESSES THE TANGIBLE ADVANTAGE
OF A CLOSE FAMILIARITY WITH THE MEANING AND PURPOSES OF ITS LOCAL RULES
OF LAW. 

ON THE OTHER SIDE ARE IMPORTANT OBLIGATIONS WHICH SPRING FROM THE
PRACTICAL EXIGENCIES OF THE ADMINISTRATION OF FEDERAL REVENUE
STATUTES.  IT CAN SCARCELY BE DOUBTED THAT IF CONCLUSIVENESS FOR
FEDERAL TAX PURPOSES WERE ATTRIBUTED TO ANY LOWER STATE COURT DECREE,
WHETHER THE PRODUCT OF GENUINELY ADVERSARY LITIGATION OR NOT, THERE
WOULD BE MANY OCCASIONS ON WHICH TAXPAYERS MIGHT READILY OBTAIN
FAVORABLE, BUT ENTIRELY INACCURATE, DETERMINATIONS OF STATE LAW FROM
UNSUSPECTING STATE COURTS.  ONE NEED NOT, TO ENVISION THIS HAZARD,
ASSUME EITHER FRAUD BY THE PARTIES OR ANY LACK OF COMPETENCE OR
DISINTERESTEDNESS AMONG STATE JUDGES; NO MORE WOULD BE NEEDED THAN A
COMPLEX ISSUE OF LAW, A CROWDED CALENDAR, AND THE PRESENTATION TO A
BUSY JUDGE OF BUT ESSENTIALLY A SINGLE VIEWPOINT.  THE CONSEQUENCE OF
ANY SUCH OCCURRENCE WOULD BE AN EXPLICATION OF STATE LAW THAT WOULD NOT
NECESSARILY BE EITHER A REASONED ADJUDICATION OF THE ISSUES OR A
CONSISTENT APPLICATION OF THE RULES ADOPTED BY THE STATE'S APPELLATE
COURTS. 

IT IS DIFFICULT TO SUPPOSE THAT ADHERENCE BY FEDERAL COURTS TO SUCH
JUDGMENTS WOULD CONTRIBUTE MATERIALLY TO THE UNIFORMITY OF THE
ADMINISTRATION OF STATE LAW, OR THAT THE TAXPAYER WOULD BE UNFAIRLY
TREATED IF HE WERE OBLIGED TO ACT, FOR PURPOSES OF FEDERAL TAXATION, AS
IF HE WERE GOVERNED BY A MORE ACCURATE STATEMENT OF THE REQUIREMENTS OF
STATE LAW.  CERTAINLY IT WOULD CONTRIBUTE NOTHING TO THE UNIFORMITY OR
ACCURACY OF THE ADMINISTRATION OF THE FEDERAL REVENUE STATUTES IF
FEDERAL COURTS WERE COMPELLED TO ADHERE IN ALL CASES TO SUCH
JUDGMENTS.  (FN8)

                      IV. 

THE FOREGOING FACTORS MIGHT, OF COURSE, BE THOUGHT CONSISTENT WITH A
VARIETY OF DISPARATE RESOLUTIONS OF THE QUESTIONS THESE TWO CASES
PRESENT.  IF EMPHASIS IS PLACED PRINCIPALLY UPON THE IMPORTANCE OF
UNIFORMITY IN THE APPLICATION OF LAW WITHIN EACH OF THE SEVERAL STATES,
AND THEREBY UPON THE APPARENT UNFAIRNESS TO AN INDIVIDUAL TAXPAYER IF
AN ISSUE OF STATE LAW WERE DIFFERENTLY DECIDED BY STATE AND FEDERAL
COURTS, IT MIGHT SEEM APPROPRIATE TO ACCEPT, IN ALL BUT THE MOST
EXCEPTIONAL OF CIRCUMSTANCES, THE JUDGMENT OF ANY STATE COURT THAT HAS
ADDRESSED THE QUESTION AT ISSUE.  THIS IS THE VIEWPOINT IDENTIFIED WITH
THE OPINION OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN GALLAGHER
V. SMITH, 223 F.2D 218; IT IS, IN ADDITION, APPARENTLY THE RULE ADOPTED
TODAY BY MY BROTHER DOUGLAS.  CONVERSELY, IF EMPHASIS IS PLACED
PRINCIPALLY UPON THE HAZARDS TO THE FEDERAL FISC FROM DUBIOUS DECISIONS
OF LOWER STATE COURTS, IT MIGHT BE THOUGHT NECESSARY TO REQUIRE FEDERAL
COURTS TO EXAMINE FOR THEMSELVES, ABSENT A JUDGMENT BY THE STATE'S
HIGHEST COURT, THE CONTENT IN EACH CASE OF THE PERTINENT STATE LAW. 
THIS, AS I UNDERSTAND IT, IS THE RULE ADOPTED BY A MAJORITY OF THE
COURT TODAY.    IN MY OPINION, NEITHER OF THESE POSITIONS
SATISFACTORILY RECONCILES THE RELEVANT FACTORS INVOLVED.   THE FORMER
WOULD CREATE EXCESSIVE RISKS THAT FEDERAL TAXATION WILL BE EVADED
THROUGH THE ACQUISITION OF INADEQUATELY CONSIDERED JUDGMENTS FROM LOWER
STATE COURTS, RESULTING FROM PROCEEDINGS BROUGHT, IN REALITY, NOT TO
RESOLVE TRULY CONFLICTING INTERESTS AMONG THE PARTIES BUT RATHER AS A
PREDICATE FOR GAINING FORESEEABLE TAX ADVANTAGES, AND IN WHICH THE
POINT OF VIEW OF THE UNITED STATES HAD NEVER BEEN PRESENTED OR
CONSIDERED.  THE JUDGMENT RESULTING FROM SUCH A PROCEEDING MIGHT WELL
DIFFER ONLY IN FORM FROM A CONSENT DECREE.  THE UNITED STATES WOULD BE
COMPELLED EITHER TO ACCEPT AS BINDING UPON ITS INTERESTS SUCH A
JUDGMENT, OR TO PARTICIPATE IN EVERY STATE COURT PROCEEDING, BROUGHT AT
THE TAXPAYER'S PLEASURE, WHICH MIGHT ESTABLISH STATE PROPERTY RIGHTS
WITH FEDERAL TAX CONSEQUENCES. 

THE SECOND POSITION, ON THE OTHER HAND, WOULD REQUIRE FEDERAL
INTERVENTION INTO THE ADMINISTRATION OF STATE LAW FAR MORE FREQUENTLY
THAN THE FEDERAL INTERESTS HERE DEMAND; ABSENT A JUDGMENT OF THE
STATE'S HIGHEST COURT, FEDERAL COURTS MUST UNDER THIS RULE RE-EXAMINE
AND, IF THEY DEEM IT APPROPRIATE, DISREGARD THE PREVIOUS JUDGMENT OF A
STATE COURT ON PRECISELY THE IDENTICAL QUESTION OF STATE LAW.  THE
RESULT MIGHT BE WIDELY DESTRUCTIVE BOTH OF THE PROPER RELATIONSHIP
BETWEEN STATE AND FEDERAL LAW AND OF THE UNIFORMITY OF THE
ADMINISTRATION OF LAW WITHIN A STATE. 

THE INTERESTS OF THE FEDERAL TREASURY ARE ESSENTIALLY NARROW HERE;
THEY ARE ENTIRELY SATISFIED IF A CONSIDERED JUDGMENT IS OBTAINED FROM
EITHER A STATE OR A FEDERAL COURT, AFTER CONSIDERATION OF THE PERTINENT
MATERIALS, OF THE REQUIREMENTS OF STATE LAW.  FOR THIS PURPOSE, THE
COMMISSIONER NEED NOT HAVE, AND DOES NOT NOW ASK, AN OPPORTUNITY TO
RELITIGATE IN FEDERAL COURTS EVERY ISSUE OF STATE LAW THAT MAY INVOLVE
FEDERAL TAX CONSEQUENCES; THE FEDERAL INTEREST REQUIRES ONLY THAT THE
COMMISSIONER BE PERMITTED TO OBTAIN FROM THE FEDERAL COURTS A
CONSIDERED ADJUDICATION OF THE RELEVANT STATE LAW ISSUES IN CASES IN
WHICH, FOR WHATEVER REASON, THE STATE COURTS HAVE NOT ALREADY PROVIDED
SUCH AN ADJUDICATION.  IN TURN, IT MAY PROPERLY BE ASSUMED THAT THE
STATE COURT HAS HAD AN OPPORTUNITY TO MAKE, AND HAS MADE, SUCH AN
ADJUDICATION IF, IN A PROCEEDING UNTAINTED BY FRAUD, IT HAS HAD THE
BENEFIT OF REASONED ARGUMENT FROM PARTIES HOLDING GENUINELY
INCONSISTENT INTERESTS. 

I WOULD THEREFORE HOLD THAT IN CASES IN WHICH STATE-ADJUDICATED
PROPERTY RIGHTS ARE CONTENDED TO HAVE FEDERAL TAX CONSEQUENCES, FEDERAL
COURTS MUST ATTRIBUTE CONCLUSIVENESS TO THE JUDGMENT OF A STATE COURT,
OF WHATEVER LEVEL IN THE STATE PROCEDURAL SYSTEM, UNLESS THE LITIGATION
FROM WHICH THE JUDGMENT RESULTED DOES NOT BEAR THE INDICIA OF A
GENUINELY ADVERSARY PROCEEDING.  I NEED NOT UNDERTAKE TO DEFINE WITH
ANY PARTICULARITY THE WEIGHT I SHOULD GIVE TO THE VARIOUS POSSIBLE
FACTORS INVOLVED IN SUCH AN ASSESSMENT; IT SUFFICES TO ILLUSTRATE THE
MORE IMPORTANT OF THE QUESTIONS WHICH I BELIEVE TO BE PERTINENT.  THE
PRINCIPAL DISTINGUISHING CHARACTERISTIC OF A STATE PROCEEDING TO WHICH,
IN MY VIEW, CONCLUSIVENESS SHOULD BE ATTRIBUTED IS LESS THE NUMBER OF
PARTIES REPRESENTED BEFORE THE STATE COURT THAN IT IS THE ACTUAL
ADVERSITY OF THEIR FINANCIAL AND OTHER INTERESTS.  IT WOULD CERTAINLY
BE PERTINENT IF IT APPEARED THAT ALL THE PARTIES HAD INSTITUTED THE
STATE PROCEEDING SOLELY FOR THE PURPOSE OF DEFEATING THE FEDERAL
REVENUE.  THE TAKING OF AN APPEAL WOULD BE SIGNIFICANT, ALTHOUGH
SCARCELY DETERMINATIVE.  THE BURDEN WOULD BE UPON THE TAXPAYER, IN ANY
CASE BROUGHT EITHER FOR A REDETERMINATION OF A DEFICIENCY OR FOR A
REFUND, TO OVERTURN THE PRESUMPTION, WELCH V. HELVERING, 290 U.S. 111,
115, THAT THE COMMISSIONER HAD CORRECTLY ASSESSED THE NECESSARY TAX BY
ESTABLISHING THAT THE STATE COURT HAD HAD AN OPPORTUNITY TO MAKE, AND
HAD MADE, A REASONED RESOLUTION OF THE STATE LAW ISSUES, AFTER A
PROCEEDING IN WHICH THE PERTINENT VIEWPOINTS HAD BEEN PRESENTED. 
PROCEEDINGS IN WHICH ONE OR MORE OF THE PARTIES HAD BEEN GUILTY OF
FRAUD IN THE PRESENTATION OF THE ISSUES TO THE STATE COURT WOULD, OF
COURSE, ORDINARILY BE ENTITLED TO LITTLE OR NO WEIGHT IN THE FEDERAL
COURT'S DETERMINATION OF STATE LAW. 

I RECOGNIZE, OF COURSE, THAT THIS APPROACH LACKS THE PRECISION OF
BOTH THE CONTRASTING YARDSTICKS SUGGESTED BY THE COURT AND BY MY
BROTHER DOUGLAS.  YET I BELIEVE THAT IT REFLECTS MORE FAITHFULLY THAN
EITHER OF THOSE RESOLUTIONS THE DEMANDS OF OUR FEDERAL SYSTEM AND OF
THE COMPETING INTERESTS INVOLVED.  (FN9)

                           V. 

I WOULD APPLY THESE GENERAL PRINCIPLES TO THE PRESENT CASES IN THE
FOLLOWING MANNER.  IN NO. 240, THE COURT OF APPEALS AGREED WITH THE
DISTRICT COURT THAT "IT WAS UNNECESSARY" TO MAKE A FINDING ON WHETHER
THE PROCEEDINGS IN THE CONNECTICUT PROBATE COURT WERE COLLUSIVE OR
"NONADVERSARY," SINCE THE DECREES OF THE PROBATE COURT COULD "'UNDER NO
CIRCUMSTANCES'" BE CONSIDERED BINDING.  351 F.2D 489, 494.  I WOULD
THEREFORE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE
CAUSE FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THE VIEWS EXPRESSED
HEREIN. 

IN NO. 673, THE COURT OF APPEALS APPARENTLY CONCLUDED THAT, ABSENT
FRAUD OR COLLUSION, ANY STATE COURT PROCEEDING WHICH TERMINATES IN A
JUDGMENT BINDING ON THE PARTIES AS TO THEIR RIGHTS UNDER STATE LAW IS
ALSO CONCLUSIVE FOR PURPOSES OF FEDERAL TAXATION.  363 F.2D 1009,
1014.  I WOULD THEREFORE REVERSE THE JUDGMENT OF THE COURT OF APPEALS,
AND AGAIN WOULD REMAND THE CAUSE FOR FURTHER PROCEEDINGS CONSISTENT
WITH THE VIEWS EXPRESSED IN THIS OPINION. 

MR. JUSTICE FORTAS, DISSENTING. 

WHILE I JOIN THE DISSENTING OPINION OF MY BROTHER HARLAN, I BELIEVE
IT APPROPRIATE TO ADD THESE FEW COMMENTS.  AS MY BROTHER HARLAN STATES,
IN A CASE IN WHICH FEDERAL TAX CONSEQUENCES DEPEND UPON STATE PROPERTY
INTERESTS, A FEDERAL COURT SHOULD ACCEPT THE FINAL CONCLUSION OF A
COMPETENT STATE COURT, ASSUMING THAT SUCH A CONCLUSION IS AN
ADJUDICATION OF SUBSTANCE ARRIVED AT AFTER ADVERSARY LITIGATION AND ON
THE BASIS OF THE SAME CAREFUL CONSIDERATION THAT STATE COURTS NORMALLY
ACCORD CASES INVOLVING THE DETERMINATION OF STATE PROPERTY INTERESTS. 
THE TOUCHSTONE OF WHETHER THE STATE PROCEEDING WAS "ADVERSARY" IS NOT
ALONE ENTIRELY SATISFACTORY.  I THINK THAT THIS CONCEPT HAS BEEN
HELPFULLY EMBELLISHED BY JUDGE RAUM OF THE UNITED STATES TAX COURT IN
THE BOSCH CASE, 43 T.C. 120, 123-124.  JUDGE RAUM SUGGESTS THAT AMONG
THE FACTORS TO BE CONSIDERED IN DETERMINING WHETHER THE DECISION OF THE
STATE COURT IS TO BE ACCEPTED AS FINAL FOR FEDERAL TAX PURPOSES ARE THE
FOLLOWING: WHETHER THE STATE COURT HAD JURISDICTION, AND WHETHER ITS
DETERMINATION IS FULLY BINDING ON THE PARTIES; WHETHER, IN PRACTICE,
THE DECISIONS OF THE STATE COURT HAVE PRECEDENTIAL VALUE THROUGHOUT THE
STATE; WHETHER THE COMMISSIONER WAS AWARE OF THE STATE PROCEEDINGS AND
HAD AN OPPORTUNITY TO PARTICIPATE; WHETHER THE STATE COURT "RENDERED A
REASONED OPINION AND REACHED A 'DELIBERATE CONCLUSION', BLAIR V.
COMMISSIONER, 300 U.S. (5) AT P. 10"; WHETHER THE STATE DECISION HAS
POTENTIALLY OFFSETTING TAX CONSEQUENCES IN RESPECT OF THE STATE COURT
LITIGANT'S FEDERAL TAXES; AND, IN GENERAL, WHETHER THE STATE COURT
DECISION "AUTHORITATIVELY DETERMINED" FUTURE PROPERTY RIGHTS, AND THUS,
AS JUDGE RAUM STATED, "PROVIDED MORE THAN A LABEL FOR PAST EVENTS  ...
." 

FN1  THE DEFICIENCY WAS ASSESSED AT $1,333,194.35, PLUS INTEREST.  IF
THE PRORATION STATUTE IS APPLICABLE, AS THE EXECUTOR HAS CONTENDED, THE
MARITAL DEDUCTION ATTRIBUTABLE TO THE WIDOW'S TRUST WOULD BE
APPROXIMATELY $3,600,000.  IF THE STATUTE IS NOT APPLICABLE, AS THE
COMMISSIONER HAS HELD, THE MARITAL DEDUCTION WOULD BE APPROXIMATELY
$1,700,000. 

FN2  THE DISTRICT COURT CONCLUDED THAT CONNECTICUT PROBATE COURTS ARE
NOT COURTS OF RECORDS (BUT SEE SHELTON V. HADLOCK, 62 CONN. 143, 25 A.
483, AND 1 LOCKE & KOHN, CONNECTICUT PROBATE PRACTICE 30 (1951)), THAT
ITS DECREES ARE WITHOUT LEGAL EFFECT IN THE STATE'S HIGHER COURTS, AND
THAT THEIR DECREES ARE ALSO SUBJECT TO COLLATERAL ATTACK EVEN IN
ANOTHER PROBATE DISTRICT.  222 F. SUPP., AT 457; SEE ALSO 351 F.2D, AT
494. 

FN3  A SUPPLEMENTARY REPORT OF THE SENATE FINANCE COMMITTEE,
CONCERNED WITH THE LEGISLATION WHICH EVENTUALLY BECAME THE REVENUE ACT
OF 1948, SAID SIMPLY THAT "PROPER REGARD SHOULD BE GIVEN TO
INTERPRETATIONS OF THE WILL RENDERED BY A COURT IN A BONA FIDE
ADVERSARY PROCEEDING."  S. REP. NO. 1013, PT. 2, 80TH CONG., 2D SESS.,
4.  THIS LANGUAGE IS DOUBTLESS BROADLY CONSISTENT WITH VIRTUALLY ANY
RESOLUTION OF THESE ISSUES, BUT IT IS DIFFICULT TO SEE THE PERTINENCE
OF THE SENTENCE'S LAST FOUR WORDS IF, AS THE COURT SUGGESTS,
CONCLUSIVENESS WAS INTENDED TO BE GIVEN TO THE STATE'S HIGHEST COURT,
BUT TO NONE OTHER. 

FN4  SEE, E.G., MATERNALLY YOURS, INC. V. YOUR MATERNITY SHOP, INC.,
234 F.2D 538; FRIENDLY, IN PRAISE OF ERIE - AND OF THE NEW FEDERAL
COMMON LAW, 39 N.Y.U.L. REV. 383, 408, N. 122; NOTE, THE COMPETENCE OF
FEDERAL COURTS TO FORMULATE RULES OF DECISION, 77 HARV.  L. REV. 1084,
1087. 

FN5  SEE KING V. ORDER OF TRAVELERS, 333 U.S. 153.  COMPARE BERNHARDT
V. POLYGRAPHIC CO., 350 U.S. 198, 204, 209-211. 

FN6  FIDELITY UNION TRUST CO. V. FIELD, 311 U.S. 169; SIX COMPANIES
OF CALIFORNIA V. JOINT HIGHWAY DISTRICT, 311 U.S. 180; WEST V. A.T.&T.
CO., 311 U.S. 223; AND STONER V. NEW YORK LIFE INS. CO., 311 U.S. 464. 
SEE ALSO VANDENBARK V. OWENS-ILLINOIS GLASS CO., 311 U.S. 538.  ALL
THESE CASES, WITH THE POSSIBLE EXCEPTION OF FIELD, AND APART FROM THE
RATHER DIFFERENT ISSUE IN VANDENBARK, CONCERNED INTERMEDIATE STATE
COURTS.  THEY HAVE BEEN STRONGLY AND REPEATEDLY CRITICIZED BY
COMMENTATORS.  JUDGE FRIENDLY, FOR EXAMPLE, DESCRIBED THEM AS
"OUTRAGES," SUPRA, AT 401.  SEE ALSO CORBIN, THE LAWS OF THE SEVERAL
STATES, 50 YALE L.J. 762, 766-768; CLARK, STATE LAW IN THE FEDERAL
COURTS, 55 YALE L.J.  267, 290-292; AND 2 CROSSKEY, POLITICS AND THE
CONSTITUTION 922-927 (1953).  IT MAY ALSO BE WONDERED WHETHER THESE
CASES HAVE ANY VITALITY LEFT AFTER KING AND BERNHARDT, SUPRA. 

FN7  FREULER V. HELVERING, 291 U.S. 35; KING V. ORDER OF TRAVELERS,
SUPRA; BERNHARDT V. POLYGRAPHIC CO., SUPRA. 

FN8  SEE, ON THE IMPORTANCE OF UNIFORMITY IN FEDERAL TAXATION, HYLTON
V. UNITED STATES, 3 DALL.  171, 180; CAHN, LOCAL LAW IN FEDERAL
TAXATION, 52 YALE L.J. 799. 

FN9  IT MAY BE DOUBTED, HOWEVER, WHETHER THIS APPROACH WOULD ACTUALLY
PRODUCE SERIOUS PRACTICAL DISADVANTAGES.  IT IS ESSENTIALLY THE
STANDARD WHICH HAS BEEN EMBODIED IN THE TREASURY REGULATIONS SINCE
1919, SEE NOW TREAS. REG. SECS 20.2053-1(B)(2), 20.2056(E)2(D)(2), AND
WHICH WAS URGED BEFORE THIS COURT IN THESE CASES BY COUNSEL FOR THE
UNITED STATES.  IT IS, MOREOVER, SIMILAR TO THE STANDARDS EMPLOYED IN
VARIOUS OPINIONS BY A NUMBER OF THE COURTS OF APPEALS.  SEE, E.G.,
SAULSBURY V. UNITED STATES, 199 F.2D 578; BRODRICK V. GORE, 224 F.2D
892; IN RE SWEET'S ESTATE, 234 F.2D 401; OLD KENT BANK & TRUST CO. V.
UNITED STATES, 362 F.2D 444.  SEE ALSO CAHN, SUPRA, AT 818-819;
BRAVERMAN & GERSON, THE CONCLUSIVENESS OF STATE COURT DECREES IN
FEDERAL TAX LITIGATION, 17 TAX L. REV. 545.  IF ANY PRACTICAL
DIFFICULTIES ACTUALLY ATTEND THIS STANDARD, THEY HAVE APPARENTLY NOT,
DESPITE ITS WIDE USE, YET APPEARED. 
..END :











DENVER & R.G.W.R. CO. V. U.S. 387 U.S. 485 


NO. 305.  ARGUED MARCH 16, 1967.  - DECIDED JUNE 5, 1967.  - 255 F.
SUPP. 704, REVERSED AND REMANDED. 


RAILWAY EXPRESS AGENCY (REA) APPLIED TO THE INTERSTATE COMMERCE
COMMISSION (ICC) FOR AUTHORIZATION UNDER SEC. 20A OF THE INTERSTATE
COMMERCE ACT TO SELL 500,000 AUTHORIZED BUT UNISSUED SHARES OF ITS
STOCK TO GREYHOUND CORPORATION.  GREYHOUND AGREED, UPON ACQUISITION OF
THESE SHARES, TO OFFER FOR 60 DAYS TO PURCHASE UP TO 1 MILLION SHARES
OF OUTSTANDING REA STOCK, ALL OF WHICH IS OWNED BY RAILROADS WHICH HAVE
THE RIGHT OF FIRST REFUSAL.  REA AND GREYHOUND HAD ENTERED INTO A
"MEMORANDUM OF UNDERSTANDING" WHICH CONTEMPLATED EFFICIENCIES AND
SAVINGS THROUGH CONSOLIDATION OF TERMINAL FACILITIES, GARAGES,
COMMUNICATIONS, ADVERTISING, AND SALES FORCES.  SECTION 20A(2) OF THE
ACT PROVIDES FOR ICC AUTHORIZATION OF A CARRIER'S STOCK ISSUANCE IF
"FOR SOME LAWFUL OBJECT WITHIN THE APPLICANT'S CORPORATE PURPOSES, AND
COMPATIBLE WITH THE PUBLIC INTEREST."  FINDING THE ISSUANCE OF THE
500,000 SHARES FOR SALE TO GREYHOUND TO BE URGENTLY NEEDED, THE ICC
AUTHORIZED THE ISSUANCE UNDER SEC. 20A WITHOUT A HEARING, AND DECLINED
TO DECIDE, PENDING THE OUTCOME OF GREYHOUND'S 60-DAY OFFER, THE
QUESTIONS OF CONTROL UNDER SEC. 5 OF THE INTERSTATE COMMERCE ACT OR
ANTICOMPETITIVE EFFECT UNDER SEC. 7 OF THE CLAYTON ACT.  A THREE-JUDGE
DISTRICT COURT SUSTAINED THE ICC ORDER.  HELD: 

1.  THE ICC IS REQUIRED, AS A GENERAL RULE, UNDER ITS DUTY TO
DETERMINE THAT THE PROPOSED TRANSACTION IS IN THE "PUBLIC INTEREST" AND
FOR A "LAWFUL OBJECT," TO CONSIDER CONTROL AND ANTICOMPETITIVE
CONSEQUENCES BEFORE APPROVING A STOCK ISSUANCE UNDER SEC. 20A(2) OF THE
INTERSTATE COMMERCE ACT.  PP. 492-498. 

2.  THE ICC DID NOT EXCEED ITS DISCRETION IN DEFERRING CONSIDERATION
OF THE ISSUE OF REA'S CONTROL BY GREYHOUND, AS RADICAL CHANGES IN THE
RELEVANT FACTS MIGHT TAKE PLACE IN THE 60-DAY PERIOD, AND IT IS HIGHLY
UNLIKELY THAT ANY HARM COULD FLOW TO APPELLANTS OR TO THE PUBLIC
INTEREST FROM A DEFERRAL LIMITED TO THAT ISSUE.  PP. 499-501. 

3.  THE ICC EXCEEDED ITS DISCRETION IN DEFERRING CONSIDERATION OF THE
ANTICOMPETITIVE ISSUES.  PP. 501-507. 

(A)  WHILE THE ICC'S DUTY TO CONSIDER ANTICOMPETITIVE ISSUES UNDER
THE PUBLIC INTEREST STANDARD OF SEC. 5 OF THE INTERSTATE COMMERCE ACT
ARISES ONLY AFTER A THRESHOLD FINDING OF CONTROL, NO SUCH PRELIMINARY
FINDING NEED BE MADE TO TRIGGER THE ICC'S DUTY UNDER THE CLAYTON ACT. 
P. 501. 

(B)  WITH RESPECT TO AT LEAST SOME OF THE ANTICOMPETITIVE ISSUES
PRESENTED BY REA'S APPLICATION THE RELEVANT FACTS WILL NOT CHANGE
SIGNIFICANTLY DURING THE 60-DAY PERIOD.  PP. 502-503. 

(C)  WITH GREYHOUND'S HOLDING OF 500,000 SHARES (20%) OF REA'S STOCK
THERE IS LIKELY TO BE IMMEDIATE AND CONTINUING COOPERATION BETWEEN THE
COMPANIES, WHICH APPELLANTS CLAIM WILL BE TO THEIR DETRIMENT AND WHICH
THE GOVERNMENT CONCEDES MAY BE AGAINST THE PUBLIC INTEREST.  IF SUCH AN
ALLIANCE WOULD IN FACT BE AGAINST THE PUBLIC INTEREST, SEC. 7 OF THE
CLAYTON ACT REQUIRES THAT IT BE STOPPED IN ITS INCIPIENCY.  P. 504. 

(D)  BEFORE THE ICC CAN JUSTIFY A DIVERSIFICATION OF OWNERSHIP ON THE
GROUNDS THAT REA HAS AN URGENT NEED FOR FUNDS AND WOULD BE BETTER OFF
MORE INDEPENDENT OF THE RAILROADS, IT MUST CONSIDER WHETHER THE ACTION
APPROVED WOULD OPERATE TO THE DETRIMENT OF REA OR THE PUBLIC INTEREST. 
PP. 505-506. 

(E)  THERE IS LITTLE MERIT TO THE GOVERNMENT'S CONTENTION THAT
DEFERRAL OF THE ANTICOMPETITIVE ISSUES IS STRONGLY SUPPORTED BY
CONSIDERATIONS OF ADMINISTRATIVE CONVENIENCE.  PP. 506-507. 

DENVER & RIO GRANDE WESTERN RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE INTERSTATE COMMERCE
COMMISSION COMPLIED WITH ITS STATUTORY RESPONSIBILITIES UNDER SEC. 20A
OF THE INTERSTATE COMMERCE ACT (FN1) WHEN IT APPROVED WITHOUT
CONSIDERATION OF CONTROL OR ANTICOMPETITIVE CONSEQUENCES THE ISSUANCE
TO APPELLEE GREYHOUND CORPORATION OF 500,000 SHARES OF THE COMMON STOCK
OF APPELLEE RAILWAY EXPRESS AGENCY, INC. (REA). 

REA PROVIDES RAILROAD EXPRESS SERVICE AND IS ALSO A MOTOR COMMON
CARRIER.  THE APPROXIMATELY 2,000,000 SHARES OF REA COMMON STOCK
OUTSTANDING ARE ENTIRELY OWNED BY RAILROADS AND NO RAILROAD STOCKHOLDER
MAY DISPOSE OF ITS SHARES WITHOUT FIRST OFFERING THEM TO THE OTHER
RAILROAD STOCKHOLDERS.  REA ALSO IS AUTHORIZED, HOWEVER, TO ISSUE
500,000 ADDITIONAL SHARES OF COMMON STOCK WITHOUT FIRST OFFERING THEM
TO ITS STOCKHOLDERS.  GREYHOUND, WHICH OPERATES AN EXPRESS CARRIER
SERVICE THROUGH ITS WHOLLY OWNED SUBSIDIARY GREYHOUND LINES, INC., A
MOTOR CARRIER OF PASSENGERS AND EXPRESS SUBJECT TO THE INTERSTATE
COMMERCE ACT, AGREED TO PURCHASE THESE 500,000 SHARES.  REA THEREUPON
APPLIED TO THE ICC FOR AN ORDER UNDER SEC. 20A APPROVING THE
TRANSACTION.  MINORITY RAILROAD REA STOCKHOLDERS, MOTOR BUS COMPETITORS
OF GREYHOUND, MOTOR CARRIERS, AND FREIGHT FORWARDERS INTERVENED IN THE
PROCEEDING TO PROTEST AGAINST APPROVAL OF THE TRANSACTION.  THEY
ALLEGED, AMONG OTHER THINGS, THE NECESSITY OF A HEARING ON THE
QUESTIONS WHETHER GREYHOUND'S ACQUISITION OF THE STOCK WAS IN THE
"PUBLIC INTEREST" AND FOR A "LAWFUL OBJECT" AS THOSE TERMS ARE USED IN
SEC. 20A.  THE ICC APPROVED THE ACQUISITION WITHOUT A HEARING.  A THREE
JUDGE DISTRICT COURT FOR THE DISTRICT OF COLORADO SUSTAINED THE ICC
ORDER.  255 F. SUPP. 704.  WE NOTED PROBABLE JURISDICTION.  385 U.S.
897.  WE REVERSE WITH DIRECTION TO THE DISTRICT COURT TO ENTER A NEW
JUDGMENT REMANDING THE CASE TO THE ICC FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

                     I. 

REA WAS ORGANIZED IN 1929 AND UNTIL 1961 OPERATED ON A NONPROFIT
BASIS UNDER A POOLING AGREEMENT WITH THE RAILROADS.  SEE SECURITIES AND
ACQUISITION OF CONTROL OF RAILWAY EXPRESS AGENCY, INC., 150 I.C.C.
423.  FINANCIAL DIFFICULTIES FORCED ABANDONMENT OF THE NONPROFIT
OPERATION AND REA WAS CONVERTED TO A PROFIT AND LOSS BASIS IN ORDER TO
EFFECT MORE EFFICIENT AND ECONOMIC OPERATION.  SEE EXPRESS CONTRACT,
1959, 308 I.C.C. 545, 549-550.  IN ADDITION, REA WAS RELEASED FROM
RESTRICTIONS AGAINST USE OF CARRIERS OTHER THAN RAILROADS.  IN 1963
REA'S BY-LAWS WERE AMENDED TO ELIMINATE A LIMITATION AGAINST STOCK
OWNERSHIP EXCEPT BY RAILROADS; THE DISPOSITION OF SHARES BY A RAILROAD,
HOWEVER, WAS MADE SUBJECT TO THE RIGHT OF FIRST REFUSAL OF THE OTHER
RAILROAD STOCKHOLDERS.  THE ISSUANCE OF 500,000 ADDITIONAL SHARES NOT
SUBJECT TO THE RIGHT OF FIRST REFUSAL WAS ALSO AUTHORIZED, BUT ONLY
UPON THE CONSENT OF TWO-THIRDS OF THE RAILROAD STOCKHOLDERS. 

GREYHOUND, PRINCIPALLY A PASSENGER CARRIER, BECAME INTERESTED IN
EXPANDING ITS GROWING EXPRESS BUSINESS.  IN JANUARY 1964 GREYHOUND
OFFERED TO PURCHASE, SUBJECT TO ICC APPROVAL, AT LEAST 67% OF REA'S
STOCK, OF WHICH GREYHOUND INTENDED TO OFFER 16% TO MAJOR AIRLINES. 
GREYHOUND ALSO AGREED TO FINANCE PART OF REA'S CAPITAL REQUIREMENTS AS
PART OF A PLAN TO COORDINATE THE EXPRESS SERVICES OF BOTH COMPANIES. 
THIS PROPOSAL WAS DEFEATED BY RAILROAD STOCKHOLDERS. 

REA AND GREYHOUND PERSISTED IN THEIR EFFORTS TO COORDINATE THEIR
OPERATIONS.  GREYHOUND PROPOSED TO ACQUIRE A 20% INTEREST IN REA
THROUGH ACQUISITION OF REA'S 500,000 AUTHORIZED BUT UNISSUED SHARES,
STATING THAT ITS "INTEREST IN REA  ...  STEMS PRIMARILY FROM OUR VIEWS
AS TO THE IMPROVEMENTS  ...  WHICH COULD BE REALIZED THROUGH
COMBINATION AND CORRELATION OF CERTAIN OF OUR FACILITIES AND
SERVICES."  GREYHOUND OFFERED TO PAY $16 PER SHARE IF PERMITTED TO NAME
ONE-FIFTH OF THE REA BOARD OF DIRECTORS AND IF THE REA BOARD WOULD
DECLARE ITS INTENTION "TO CONSIDER SERIOUSLY AND WORK TOWARD A LONG
TERM AGREEMENT BETWEEN REA AND GREYHOUND TO CONSOLIDATE OPERATING
FUNCTIONS AND FACILITIES  ...  ," AND IF, FURTHER, THE REA BOARD WOULD
AGREE "TO CONSIDER SERIOUSLY AT A LATER TIME  ...  " THE SALE OF REA
STOCK TO AIRLINES AND THE GENERAL PUBLIC.  FINALLY, GREYHOUND OFFERED,
IF PERMITTED TO ACQUIRE THE 500,000 SHARES, TO PURCHASE ENOUGH
ADDITIONAL SHARES AT $25 EACH TO GIVE IT 50% OF THE STOCK OF REA, THE
OFFER TO REMAIN OPEN FOR 60 DAYS FOLLOWING GREYHOUND'S ACQUISITION OF
THE 500,000 SHARES.  IT EXPRESSED WILLINGNESS, HOWEVER, TO PURCHASE THE
500,000 SHARES AND LEAVE "TO THE FUTURE THE QUESTION OF THE ACQUISITION
OF ADDITIONAL SHARES BY GREYHOUND AND GIVING THE RAILROADS AN
OPPORTUNITY TO RECONCILE THEIR VIEWS ON THIS QUESTION." 

REA COUNTERED WITH AN OFFER TO SELL THE 500,000 SHARES AT $20 PER
SHARE PROVIDED GREYHOUND WOULD AGREE TO OFFER WITHIN THE 60-DAY PERIOD
TO PURCHASE AN ADDITIONAL 1,000,000 SHARES OF THE OUTSTANDING STOCK AT
THE SAME PRICE.  THE AGREEMENT WAS CONSUMMATED ON THIS BASIS SUBJECT TO
ICC APPROVAL. 

REA'S APPLICATION TO THE ICC SOUGHT APPROVAL ONLY OF THE ISSUANCE TO
GREYHOUND OF THE 500,000 SHARES.  THE APPLICATION WAS SUPPLEMENTED WITH
DETAILED DATA REVIEWING THE NEGOTIATIONS, A STATEMENT OF REA'S
FINANCIAL CONDITION AND A STATEMENT OF THE PURPOSES TO WHICH THE
$10,000,000 REALIZED FROM THE SALE OF THE 500,000 SHARES WOULD BE
APPLIED.  THE BURDEN OF THE PROTESTS OF NUMEROUS INTERVENORS WAS THAT
THE TRANSACTION WAS NOT IN THE "PUBLIC INTEREST" AND FOR A "LAWFUL
OBJECT," BUT RATHER WAS THE FIRST STEP TOWARD ESTABLISHING A VIRTUAL
MONOPOLY OF EXPRESS TRANSPORTATION, AND WOULD RESULT IN "CONTROL" BY
GREYHOUND OF REA, NECESSITATING A HEARING UNDER SEC. 5 OF THE ACT. 
(FN2) THE DEPARTMENT OF JUSTICE ALSO INTERVENED.  IT URGED THE ICC TO
CONDUCT A HEARING TO DETERMINE WHETHER THE TRANSACTION WOULD VIOLATE
SEC. 7 OF THE CLAYTON ACT, (FN3) SUGGESTING THAT, WHILE A SEC. 5
PROCEEDING MIGHT BE UNNECESSARY, ONE MIGHT BE INSTITUTED AND
CONSOLIDATED WITH THE RECOMMENDED CLAYTON ACT SEC. 7 PROCEEDING, SINCE
THE ANTICOMPETITIVE ISSUES INVOLVED WOULD BE VIRTUALLY IDENTICAL. 

DIVISION THREE OF THE ICC APPROVED THE APPLICATION WITHOUT HEARING,
RULING THAT INVESTIGATION INTO THE "CONTROL" AND "ANTICOMPETITIVE"
ISSUES "WOULD NOT BE APPROPRIATE AT THIS TIME  ...  ."  AFTER THE ICC
DENIAL OF PETITIONS FOR RECONSIDERATION THIS ACTION TO ENJOIN AND SET
ASIDE THE ICC ORDER WAS FILED.  THE FULL COMMISSION MEANWHILE
RECONSIDERED AND AFFIRMED THE ACTION OF DIVISION THREE BUT POSTPONED
THE EFFECTIVE DATE OF THE ORDER PENDING THE CONCLUSION OF JUDICIAL
PROCEEDINGS. 

IN THE DISTRICT COURT THE PARTIES ADHERED BASICALLY TO THE POSITIONS
MAINTAINED BEFORE THE ICC, EXCEPT THAT THE DEPARTMENT OF JUSTICE
ABANDONED ITS POSITION URGING A HEARING ON THE SEC. 7 QUESTION AND
DECLINED EITHER TO SUPPORT OR TO OPPOSE THE ICC ORDER.  IN SUSTAINING
THE ORDER THE DISTRICT COURT REASONED THAT, WHILE THE ICC MIGHT BE
REQUIRED IN SOME CIRCUMSTANCES TO CONSIDER "CONTROL" AND
"ANTICOMPETITIVE" ISSUES BEFORE APPROVING A STOCK ISSUANCE UNDER SEC.
20A, THE ICC PROPERLY EXERCISED DISCRETION TO DEFER CONSIDERATION OF
SUCH QUESTIONS IN THIS CASE UNTIL AFTER IT WAS DETERMINED WHETHER AND
TO WHAT EXTENT GREYHOUND WOULD SUCCEED IN PURCHASING ADDITIONAL SHARES
FROM RAILROAD STOCKHOLDERS; ONLY THEN WOULD THE "CHAIN OF EVENTS
STARTED BY THE STOCK ISSUANCE  ...  BE ASCERTAINABLE RATHER THAN
CONJECTURAL."  255 F. SUPP. 704, 709. 

IN THIS COURT THE GOVERNMENT CONCEDES, AND THE OTHER APPELLEES ASSUME
ARGUENDO, THAT IMPORTANT ISSUES OF "CONTROL" AND "ANTICOMPETITIVE"
EFFECTS WERE INVOLVED IN THE APPLICATION BEFORE THE ICC.  THE
GOVERNMENT HAS COMPLETELY REVERSED ITS POSITION FROM WHAT IT WAS BEFORE
THE ICC, ARGUING HERE THAT SEC. 20A WAS DESIGNED TO ACCOMPLISH ONLY THE
LIMITED OBJECTIVE OF PROTECTING STOCKHOLDERS AND THE PUBLIC FROM FISCAL
MANIPULATION, AND THAT, IN ANY EVENT, POSTPONEMENT OF CONSIDERATION OF
"CONTROL" AND "ANTICOMPETITIVE" ISSUES WAS JUSTIFIED IN THIS CASE
BECAUSE THE FACTS RELEVANT TO BOTH ISSUES MIGHT BE WHOLLY DIFFERENT AT
THE END OF THE 60-DAY PERIOD, AND BECAUSE NO PREJUDICE TO ANY PARTY'S
INTERESTS COULD RESULT FROM THE DELAY. 

                                       II. 

WE DO NOT AGREE THAT CONGRESS LIMITED ICC CONSIDERATION UNDER SEC.
20A TO AN INQUIRY INTO FISCAL MANIPULATION.  (FN4)  EVEN IF CONGRESS'
PRIMARY CONCERN WAS TO PREVENT SUCH MANIPULATION, THE BROAD TERMS
"PUBLIC INTEREST" AND "LAWFUL OBJECT" NEGATE THE EXISTENCE OF A MANDATE
TO THE ICC TO CLOSE ITS EYES TO FACTS INDICATING THAT THE TRANSACTION
MAY EXCEED LIMITATIONS IMPOSED BY OTHER RELEVANT LAWS.  COMMON SENSE
AND SOUND ADMINISTRATIVE POLICY POINT TO THE CONCLUSION THAT SUCH BROAD
STATUTORY STANDARDS REQUIRE AT LEAST SOME DEGREE OF CONSIDERATION OF
CONTROL AND ANTICOMPETITIVE CONSEQUENCES WHEN SUGGESTED BY THE
CIRCUMSTANCES SURROUNDING A PARTICULAR TRANSACTION.  BOTH THE ICC AND
THIS COURT HAVE READ TERMS SUCH AS "PUBLIC INTEREST" BROADLY, TO
REQUIRE CONSIDERATION OF ALL IMPORTANT CONSEQUENCES INCLUDING
ANTICOMPETITIVE EFFECTS.  THUS THE ICC IS REQUIRED TO WEIGH
ANTICOMPETITIVE EFFECTS IN APPROVING APPLICATIONS FOR MERGER OR CONTROL
UNDER SEC. 5 OF THE ACT, AUTHORIZING THE ICC TO GRANT SUCH APPLICATIONS
ONLY IF "CONSISTENT WITH THE PUBLIC INTEREST."  MCLEAN TRUCKING CO. V.
UNITED STATES, 321 U.S. 67.  AND SIMILARLY BROAD RESPONSIBILITIES ARE
ENCOMPASSED WITHIN LIKE BROAD DIRECTIVES ADDRESSED TO OTHER AGENCIES. 
E.G., NATIONAL BROADCASTING CO.  V. UNITED STATES, 319 U.S. 190, 224;
FCC V. RCA COMMUNICATIONS, INC., 346 U.S. 86, 94; CALIFORNIA V. FPC,
369 U.S. 482, 484-485. 

IT IS TRUE THAT THE REQUIREMENTS THAT THE ICC CONSIDER
ANTICOMPETITIVE EFFECTS IS MORE READILY FOUND UNDER SEC. 5, SINCE SEC.
5(11) ENABLES THE ICC TO CONFER IMMUNITY FROM THE ANTITRUST LAWS FOR
TRANSACTIONS APPROVED UNDER SEC. 5(2).  (FN5)  BUT THE FOUNDATIONS OF
THE ICC'S OBLIGATION UNDER SEC. 5 ARE LARGELY APPLICABLE TO SEC. 20A AS
WELL.  SECTION 20A, LIKE SEC. 5, MUST AFTER ALL BE READ IN THE CONTEXT
OF OVERALL ICC RESPONSIBILITIES.  THE RESPONSIBILITY UNDER SEC. 11 OF
THE CLAYTON ACT (FN6) TO ENFORCE THAT ACT'S PROVISIONS IS ONE OF THEM. 
THE RESPONSIBILITY TO ADVANCE THE NATIONAL TRANSPORTATION POLICY, READ
INTO THE "PUBLIC INTEREST" STANDARD OF SEC. 5, IS ANOTHER PERSISTENT
AND OVERRIDING DUTY, EQUALLY APPLICABLE TO SEC. 20A.  IN SUM, AS WE
SAID IN MCLEAN TRUCKING, SUPRA, WHILE TRANSPORTATION "LEGISLATION
CONSTITUTES THE IMMEDIATE FRAME OF REFERENCE WITHIN WHICH THE
COMMISSION OPERATES  ...  AND THE POLICIES EXPRESSED IN IT MUST BE THE
BASIC DETERMINANTS OF ITS ACTION  ...  , IN EXECUTING THOSE POLICIES
THE COMMISSION MAY BE FACED WITH OVERLAPPING AND AT TIMES INCONSISTENT
POLICIES EMBODIED IN OTHER LEGISLATION ENACTED AT DIFFERENT TIMES AND
WITH DIFFERENT PROBLEMS IN VIEW.  WHEN THIS IS TRUE, IT CANNOT, WITHOUT
MORE, IGNORE THE LATTER."  321 U.S., AT 80. 

IN PROCEEDINGS UNDER SEC. 20A(2), THE ICC ITSELF HAS NOT ACTED AS
THOUGH IT LACKS THE POWER OR RESPONSIBILITY TO WEIGH ANTICOMPETITIVE
CONSEQUENCES.  IN COLUMBIA TERMINALS CO. - ISSUANCE OF NOTES, 40 M.C.C.
288, 293, AN APPLICATION TO ISSUE NOTES UNDER SEC. 20A(2) WAS GRANTED
IN PART ONLY ON THE CONDITION THAT THE NOTES BE MADE THE SUBJECT OF
COMPETITIVE BIDDING.  THE ICC EXPLICITLY REJECTED THE ARGUMENT THAT
SEC. 10 OF THE CLAYTON ACT, 15 U.S.C.  SEC. 20, REQUIRING COMPETITIVE
BIDDING IN CERTAIN SITUATIONS, WAS SUPERSEDED BY SEC. 20A.  IN STOCK OF
NEW JERSEY, I.&I.R. CO., 94 I.C.C. 727, 729, THE COMMISSION SAID, IN
CONSIDERING AN APPLICATION TO ISSUE STOCK:  "IT CAN NOT BE SAID THAT IN
THE PERFORMANCE OF THE BROAD DUTY IMPOSED UPON US BY THE STATUTE WE
MUST CONFINE OUR INVESTIGATION AND CONSIDERATION TO THE EFFECT OF
PROPOSED ISSUES UPON THE CARRIER IMMEDIATELY INVOLVED.  IN ANY
APPLICATION TO US FOR AUTHORITY TO ISSUE SECURITIES WE ARE BOUND TO
MEASURE THE PROPOSAL BY THE TEST OF PUBLIC INTEREST IN WHATEVER PHASE
THAT INTEREST MAY APPEAR TO BE AFFECTED." 

THIS "BROAD DUTY" WAS SIGNIFICANTLY ADHERED TO IN CHESAPEAKE & O.R.
CO. PURCHASE, 271 I.C.C.  5.  THERE, THE C&O SOUGHT MODIFICATION OF AN
EARLIER ORDER SO AS TO ENABLE IT TO ACQUIRE AND EXERCISE 400,000 SHARES
OF NEW YORK CENTRAL, AND TWO OF C&O'S DIRECTORS SOUGHT AUTHORITY UND R
SEC. 20A(12) TO HOLD SEATS SIMULTANEOUSLY ON THE CENTRAL BOARD.  C&O
AND ITS DIRECTORS ALLEGED, IN TERMS STRIKINGLY SIMILAR TO THE CLAIMS IN
THIS CASE, THAT CENTRAL NEEDED FUNDS AND NEW MANAGEMENT, AND THAT THE
TWO COMPANIES WERE CONTEMPLATING PLANS OF MUTUAL ADVANTAGE AND
ULTIMATELY A MERGER UNDER SEC. 5(2).  THE ICC TOOK A BROAD VIEW OF ITS
POWER AND RESPONSIBILITY.  IT FOUND, AS TO THE SEC. 20A(12) ISSUE, THAT
AN INSUFFICIENT SHOWING HAD BEEN MADE THAT "NEITHER PUBLIC NOR PRIVATE
INTERESTS  ...  " WOULD BE ADVERSELY AFFECTED BY THE PROPOSED
INTERLOCKING DIRECTORATE, CITING ITS OWN CASES TO THE EFFECT THAT
AUTHORITY WOULD BE GRANTED UNDER SEC. 20A(12) ONLY WHERE NO LESSENING
OF COMPETITION OR INDEPENDENCE OCCURRED, 271 I.C.C., AT 18, AND
POINTING OUT THAT, EVEN IF THE CENTRAL WERE STRENGTHENED, AN
INTERLOCKING DIRECTORATE MIGHT INJURE OTHER RAILROADS, IN WHICH THE
"PUBLIC HAS JUST AS GREAT AN INTEREST  ...  ,"  271 I.C.C., AT 40.  IN
TREATING THE REQUEST THAT IT APPROVE THE STOCK ACQUISITION, THE ICC
REFERRED IN GREAT DETAIL TO THE FACTS THAT (1) THE ACQUISITION, WHEN
CONSIDERED ALONG WITH LONG-RANGE PLANS, WOULD RESULT IN C&O CONTROL OF
CENTRAL; (2) EXTENSIVE COMPETITION BETWEEN C&O AND CENTRAL WOULD BE
ELIMINATED; AND (3) COOPERATION BETWEEN C&O AND CENTRAL WOULD POSE A
SUBSTANTIAL THREAT TO ANOTHER RAILROAD, 271 I.C.C., AT 24-29.  IT
REFUSED TO AUTHORIZE THE ACQUISITION, CONCLUDING THAT IT WAS IN EFFECT
BEING ASKED "TO SANCTION A VIOLATION OF THE PROVISIONS OF SECTION 5(4)
REQUIRING CARRIERS TO REQUEST AUTHORITY UNDER SEC. 5(2) BEFORE
ACQUIRING CONTROL OF ANOTHER CARRIER AND ALSO A VIOLATION OF SECTION 7
OF THE CLAYTON ANTITRUST ACT."  271 I.C.C., AT 39, 43.  IT STATED THAT,
IF THE APPLICANTS WERE SO CONFIDENT THAT THEIR LONG-RUN AIMS WOULD BE
IN THE PUBLIC INTEREST, THEY SHOULD SEEK AUTHORITY FOR CONTROL UNDER
SEC. 5(2).  THESE PRINCIPLES AND ARGUMENTS RELIED UPON BY THE ICC IN
REJECTING C&O'S APPLICATION ARE EQUALLY APPLICABLE HERE.  THE ECONOMIC
CONSEQUENCES DO NOT DIFFER BECAUSE WE ARE CONCERNED HERE WITH THE
ISSUANCE OF STOCK RATHER THAN AN ACQUISITION ON THE OPEN MARKET. 

APPELLESS ARGUE, WITH SOME AMBIVALENCE, THAT IT WOULD BE ANOMALOUS TO
REQUIRE THE ICC TO CONSIDER ANTICOMPETITIVE ISSUES UNDER SEC. 20A(2). 
THE ICC IS AUTHORIZED UNDER SEC. 5 TO GRANT ANTITRUST IMMUNITY FOR
CONSOLIDATIONS.  NO SUCH POWER EXISTS UNDER SEC. 20A, (FN7) AND THE
GOVERNMENT CONTENDS THEREFORE THAT TO REQUIRE CONSIDERATION OF SEC. 7
ISSUES UNDER SEC. 20A WOULD LEAD TO THE "ANOMALOUS CONCLUSION THAT A
SECURITIES ISSUE MAY HAVE TO BE DISALLOWED EVEN THOUGH IT MIGHT BE THE
FIRST STEP IN AN ACQUISITION OF CONTROL THAT THE COMMISSION COULD, ON
PROPER FINDINGS, AUTHORIZE UNDER SECTION 5 NOTWITHSTANDING ANTITRUST
CONSIDERATIONS."  REA ADVANCES A VARIANT OF THIS ARGUMENT POINTING OUT
THAT THE SIXTY-SIXTH CONGRESS, WHICH PASSED BOTH SEC. 5 AND SEC. 20A,
WOULD NOT HAVE "ADOPTED THE ERRATIC POLICY OF RELAXING ENFORCEMENT OF
THE ANTITRUST LAWS WHEN COMPETITION WAS ELIMINATED BUT REQUIRING STRICT
ENFORCEMENT WHEN LESSER COMPETITIVE HARM MIGHT OCCUR." 

FIRST, IT IS BY NO MEANS TRUE THAT GREATER COMPETITIVE HARM
NECESSARILY RESULTS FROM CONSOLIDATIONS THAN FROM STOCK ISSUANCES UNDER
SEC. 20A.  A PARTICULAR CONSOLIDATION MAY BE IN THE PUBLIC INTEREST
BECAUSE IT INCREASES COMPETITION IN SOME RESPECTS, WHILE A STOCK
ISSUANCE, EVEN THOUGH NOT INVOLVING CONTROL, MAY HAVE NO SIMILAR
REDEEMING FEATURE.  SECOND, ANY ANOMALY WHICH MAY BE CREATED BY THE
JUXTAPOSITION OF SECS. 5 AND 20A STEMS, NOT FROM THE FACT THAT NO
IMMUNITY MAY BE GRANTED UNDER SEC. 20A, BUT FROM THE ICC'S SPECIAL
POWER UNDER SEC. 5.  THE OBLIGATION TO ENFORCE THE CLAYTON ACT IS THE
RULE, AND SEC. 5 IS THE EXCEPTION.  FINALLY, THERE ARE GOOD REASONS
UPON WHICH CONGRESS MAY HAVE RELIED IN PROVIDING THAT IMMUNITY MIGHT BE
CONFERRED UNDER SEC. 5 BUT NOT UNDER SEC. 20A.  CONGRESS RECOGNIZED IN
THE TRANSPORTATION ACT OF 1940, 54 STAT. 898, AS IT HAD IN THE ACT OF
1920, THAT RAILROAD CONSOLIDATIONS OFTEN RESULT IN BENEFITS FOR THE
NATIONAL TRANSPORTATION SYSTEM AS WELL AS FOR THE RAILROADS INVOLVED. 
CONSEQUENTLY, IT AUTHORIZED THE ICC TO APPROVE CONSOLIDATIONS AND TO
IMMUNIZE THEM FROM THE ANTITRUST LAWS WHEN THEY WERE FOUND TO BE IN THE
PUBLIC INTEREST.  THE SPECIAL BENEFITS SOMETIMES REALIZED FROM CARRIER
CONSOLIDATIONS ARE LESS LIKELY TO COME ABOUT THROUGH THE MERE ISSUANCE
OF STOCK, UNLESS THE ISSUANCE RESULTS IN CONTROL OR MERGER; AND WHEN
CONTROL OR MERGER DOES RESULT, THE PARTY ACQUIRING CONTROL MAY INVOKE
THE COMMISSION'S POWER UNDER SEC. 5 TO IMMUNIZE THE CONSOLIDATION FROM
THE ANTITRUST LAWS. 

APPELLEES' RELIANCE UPON ALLEGHANY CORP. V. BRESWICK & CO., 353 U.S.
151, 355 U.S. 415, IS MISPLACED.  THAT LITIGATION STANDS AT MOST FOR
THE PROPOSITION THAT THE ICC HAS DISCRETION IN SOME CIRCUMSTANCES TO
CONSIDER SEC. 20A ISSUES WITHOUT COMING TO GRIPS WITH THE QUESTION
WHETHER CONTROL OF ONE CARRIER BY ANOTHER MAY BE UNLAWFUL.  ALLEGHANY
HAD ACQUIRED CONTROL OF THE NEW YORK CENTRAL WITHOUT ICC APPROVAL.  IT
APPLIED TO THE ICC RATHER THAN TO THE SECURITIES AND EXCHANGE
COMMISSION FOR APPROVAL OF AN ISSUE OF PREFERRED STOCK.  THE ICC TOOK
JURISDICTION ON THE GROUND THAT, WHILE ALLEGHANY WAS AN INVESTMENT
COMPANY NORMALLY UNDER THE JURISDICTION OF THE SEC, ITS CONTROL OF
CENTRAL MADE IT A CARRIER SUBJECT TO ICC REGULATION.  THE DISTRICT
COURT SET ASIDE THE ORDER APPROVING THE ISSUANCE ON THE GROUND THAT ICC
JURISDICTION TO ACT UNDER SEC. 20A COULD NOT REST UPON A CONTROL IT HAD
NOT APPROVED.  THIS COURT REVERSED, POINTING OUT THAT IT WOULD BE
CONTRARY TO THE POLICY OF THE STATUTE TO OUST THE ICC OF REGULATORY
JURISDICTION BECAUSE A NONCARRIER HAD FAILED TO ABIDE BY THE LAW.  ON
REMAND THE DISTRICT COURT CONSIDERED THE ILLEGALITY OF ALLEGHANY'S
CONTROL AS RELEVANT TO THE MERITS OF THE ISSUANCE UNDER SEC. 20A, AND
WE REVERSED AGAIN, STATING SIMPLY THAT THE ONLY ISSUE LEFT OPEN ON
REMAND WAS WHETHER THE STOCK ISSUE "AS APPROVED" WAS UNLAWFUL.  355
U.S. 415, 416.  HOWEVER THIS LITIGATION MAY BE INTERPRETED, IT WHOLLY
FAILS TO SUPPORT THE PROPOSITION THAT, BECAUSE SEC. 20A WAS DESIGNED
PRIMARILY TO PROTECT AGAINST FISCAL MANIPULATION, THE ICC IS RELIEVED
OF THE NECESSITY OF CONSIDERING OTHER ISSUES GERMANE TO THE
TRANSACTION. 

WE CONCLUDE, THEREFORE, THAT THE ICC IS REQUIRED, AS A GENERAL RULE,
UNDER ITS DUTY TO DETERMINE THAT THE PROPOSED TRANSACTION IS IN THE
"PUBLIC INTEREST" AND FOR A "LAWFUL OBJECT," TO CONSIDER THE CONTROL
AND ANTICOMPETITIVE CONSEQUENCES BEFORE APPROVING STOCK ISSUANCES UNDER
SEC. 20A(2).  THIS DOES NOT MEAN THE ICC MUST GRANT A HEARING IN EVERY
CASE, OR THAT IT MAY NEVER DEFER CONSIDERATION OF ISSUES WHICH ARISE
WHEN SPECIAL CIRCUMSTANCES ARE PRESENT.  BUT IT DOES MEAN THAT, WHEN
THE ICC EXERCISES ITS DISCRETION TO APPROVE ISSUANCES WITHOUT FIRST
CONSIDERING IMPORTANT CONTROL AND COMPETITION ISSUES, THE REVIEWING
COURT MUST CLOSELY SCRUTINIZE ITS ACTION IN LIGHT OF THE ICC'S
STATUTORY OBLIGATIONS TO PROTECT THE PUBLIC INTEREST AND TO ENFORCE THE
ANTITRUST LAWS.  WHETHER OR NOT AN ABUSE OF DISCRETION IS PRESENT MUST
ULTIMATELY DEPEND UPON THE TRANSACTION APPROVED, ITS POSSIBLE
CONSEQUENCES, AND ANY JUSTIFICATIONS FOR THE DEFERRAL.  WE TURN NOW TO
THIS QUESTION, FIRST WITH RESPECT TO THE DEFERRAL OF THE CONTROL ISSUE,
AND SECOND WITH RESPECT TO THE DEFERRAL OF THE ANTICOMPETITIVE ISSUES. 

                                       III. 

REA'S PROPOSED ISSUANCE OF A 20% STOCK INTEREST TO GREYHOUND
UNDOUBTEDLY RAISED A SERIOUS QUESTION WHETHER CONTROL OF ITS OPERATIONS
MIGHT PASS TO GREYHOUND.  CONTROL UNDER SEC. 5 MUST BE JUDGED
REALISTICALLY, AND IT IS A MATTER OF DEGREE.  SEE ROCHESTER TEL. CORP.
V. UNITED STATES, 307 U.S. 125.  EVEN THE 20% ACQUISITION STANDING
ALONE MIGHT RAISE AN ISSUE OF CONTROL NECESSITATING GREATER
CONSIDERATION THAN GIVEN IT BY THE ICC, BUT IT IS CLEAR FROM REA'S OWN
EVIDENCE THAT THE PURPOSE OF ITS NEGOTIATIONS WITH GREYHOUND WAS TO
BRING THE TWO COMPANIES INTO A JOINT ALIGNMENT.  THE 20% STOCK ISSUANCE
WAS TREATED BY BOTH AS THE FIRST STEP OF A MORE AMBITIOUS PROJECT, AND
AS EVIDENCE OF THE SERIOUSNESS OF EACH OTHER'S INTENTIONS TO THAT END. 

WHAT THE ICC HAS DONE MUST, HOWEVER, BE PLACED IN PERSPECTIVE.  IT
HAS NOT DENIED THAT A SUBSTANTIAL ISSUE OF CONTROL IS PRESENT, AND IT
HAS NOT REFUSED TO CONSIDER THE ISSUE.  IT HAS HELD ONLY THAT
CONSIDERATION SHOULD BE DEFERRED FOR THE 60-DAY PERIOD DURING WHICH
GREYHOUND HAS AGREED TO EXTEND TO REA STOCKHOLDERS AN OFFER TO PURCHASE
UP TO 1,000,000 SHARES.  WE HAVE STRESSED THE UNSATISFACTORY
CONSEQUENCES WHICH OFTEN OCCUR WHEN AGENCIES DEFER ACTION AND LEAVE
PARTIES UNCERTAIN AS TO THEIR RIGHTS AND OBLIGATIONS.  UNITED STATES V.
CHICAGO, M., ST. P. & P.R. CO., 294 U.S. 499, 510.  WE MIGHT ALSO
OBSERVE THAT THE ICC APPARENTLY COULD HAVE AVOIDED THE DEFERRAL BY
REQUIRING REA AND GREYHOUND TO REFORM THEIR CONTRACT SO THAT ALL THE
FACTS RELEVANT TO THE CONTROL ISSUE COULD BE ASCERTAINED BEFORE
APPROVAL WAS GIVEN UNDER SEC. 20A(2).  (FN8)  NEVERTHELESS, WE CANNOT
SAY THAT THE ICC EXCEEDED ITS DISCRETION WHEN IT DEFERRED CONSIDERATION
OF THE CONTROL ISSUE; RADICAL CHANGES IN THE RELEVANT FACTS MAY TAKE
PLACE DURING THE 60-DAY PERIOD, AND IT IS HIGHLY UNLIKELY THAT ANY HARM
CAN FLOW TO APPELLANTS OR TO THE PUBLIC INTEREST FROM A DEFERRAL
LIMITED TO THAT ISSUE. 

RESOLUTION OF THE "PUBLIC INTEREST" ISSUE UNDER SEC. 5, REQUIRING
CONSIDERATION OF ANTICOMPETITIVE AND OTHER CONSEQUENCES, IS REQUIRED
WHEN THE THRESHOLD FACT OF CONTROL OR MERGER IS ESTABLISHED.  BUT IN
THIS CASE, EVEN ASSUMING THAT THE 20% PURCHASE MAY AMOUNT TO "CONTROL"
UNDER THE EXISTING STOCK DISTRIBUTION, EVENTS MAY OCCUR DURING THE 60
DAY PERIOD WHICH MIGHT NEGATE THIS POSSIBILITY.  SOME RAILROADS HAVE
INDICATED THEIR INTENTION TO SELL THEIR REA HOLDINGS, BUT WHETHER
GREYHOUND OR THE DISSIDENT RAILROADS WIND UP IN A CONTROLLING POSITION
MAY DEPEND ON THE EXTENT TO WHICH THE LATTER EXERCISE THEIR RIGHT OF
FIRST REFUSAL.  THE DISSIDENT RAILROADS HAVE MADE CLEAR THEIR INTENTION
TO PREVENT GREYHOUND FROM ACQUIRING ANY ADDITIONAL SHARES, BUT EVEN IF
THEY OBTAIN ONE-THIRD OF REA'S STOCK THEY WILL BE ABLE TO DETERMINE THE
COMPOSITION OF REA'S BOARD OF DIRECTORS.  IN EITHER CASE, THE ADDED
POWER IN THE HANDS OF THE DISSIDENT ROADS MAY, DEPENDING ON THE
CIRCUMSTANCES, LEAD THE ICC TO FIND THAT GREYHOUND HAD NOT ACQUIRED
CONTROL.  (FN9)  THUS THE CONTROL QUESTION CAN MORE REALISTICALLY BE
RESOLVED WITH FINALITY AFTER THE 60-DAY PERIOD. 

MOREOVER, THE ICC REASONABLY CONCLUDED THAT ALLOWING GREYHOUND
TENTATIVELY TO ACQUIRE THE 20% STOCK INTEREST WOULD NOT PREJUDICE
APPELLANTS AS TO THE CONTROL ISSUE IN LIGHT OF THE DISSIDENT RAILROADS'
POSITION THAT GREYHOUND WOULD NOT ACQUIRE "ONE ADDITIONAL SHARE UNDER
THE OFFER TO PURCHASE UP TO ONE MILLION SHARES  ...  ," AND BECAUSE
GREYHOUND WOULD BE UNABLE UNDER REA'S BYLAWS TO CONTROL THE BOARD,
SINCE ITS FIVE DIRECTORS WOULD BE FACED BY 18 RAILROAD DIRECTORS, ANY
13 OF WHOM WOULD HAVE THE POWER TO PREVENT ANY ACTION PROPOSED BY
GREYHOUND. 

                                 IV. 

THE ACTION OF THE COMMISSION IN DEFERRING CONSIDERATION OF THE
ANTICOMPETITIVE ISSUES STANDS ON A DIFFERENT FOOTING.  THE COMMISSION'S
RESPONSIBILITY UNDER SEC. 5 AND UNDER THE CLAYTON ACT DIFFERS MARKEDLY,
AND THE REASONS WHICH SUPPORT AN EXERCISE OF DISCRETION AS TO THE
CONTROL ISSUE ARE WHOLLY INAPPLICABLE TO THE ANTICOMPETITIVE
QUESTIONS.  THERE IS, IN SHORT, NO REASONABLE JUSTIFICATION FOR
DEFERRING THE CLAYTON ACT QUESTIONS. 

THE COMMISSION IS, OF COURSE, REQUIRED TO CONSIDER ANTICOMPETITIVE
ISSUES UNDER THE PUBLIC INTEREST STANDARD OF SEC. 5, JUST AS IT MUST
UNDER THE PUBLIC INTEREST STANDARD OF SEC. 20A.  BUT THE DUTY UNDER
SEC. 5, AS WE POINT OUT ABOVE, ARISES ONLY AFTER THE THRESHOLD FACT OF
CONTROL IS ESTABLISHED.  NO SUCH PRELIMINARY FINDING NEED BE MADE TO
TRIGGER THE ICC'S DUTY UNDER THE CLAYTON ACT.  A COMPANY NEED NOT
ACQUIRE CONTROL OF ANOTHER COMPANY IN ORDER TO VIOLATE THE CLAYTON
ACT.  SEE, E.G., UNITED STATES V. DU PONT & CO., 353 U.S. 586; AMERICAN
CRYSTAL SUGAR CO. V. CUBAN-AMERICAN SUGAR CO., 152 F. SUPP.  387
(D.C.S.D.N.Y. 1957), AFF'D, 259 F.2D 524 (C.A.2D CIR. 1958).  SECTION 7
PROSCRIBES ACQUISITION OF "ANY PART" OF A COMPANY'S STOCK WHERE THE
EFFECT "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY."  MOREOVER, THE PURPOSE OF SEC. 5 IS SIGNIFICANTLY
DIFFERENT FROM THAT OF THE CLAYTON ACT.  SECTION 5 IS DESIGNED TO
ENABLE CARRIERS TO SEEK AND OBTAIN APPROVAL OF CONSOLIDATIONS WITH
OTHER CARRIERS, WITH IMMUNITY FROM THE ANTITRUST LAWS.  WHEN A CARRIER
EFFECTS A CONSOLIDATION WITHOUT ICC AUTHORITY, THE COMMISSION CAN OF
COURSE ACT UNDER SEC. 5(4).  BUT, AS THE COMMISSION HAS OFTEN HELD, THE
CARRIER MUST INITIATE CONSOLIDATIONS UNDER SEC. 5, AND IT IS REASONABLE
TO EXPECT THAT CARRIERS WILL SEEK THE BENEFITS OF THAT PROVISION.  IN
CONTRAST, THE CLAYTON ACT IS PROHIBITIVE, AND IMPOSES A POSITIVE
OBLIGATION UPON THE ICC TO ACT.  THE COMMISSION IS DIRECTED, WHENEVER
IT HAS REASON TO BELIEVE ANY CARRIER WITHIN ITS JURISDICTION IS
VIOLATING SEC. 7, TO "ISSUE AND SERVE UPON SUCH PERSON AND THE ATTORNEY
GENERAL A COMPLAINT STATING ITS CHARGES IN THAT RESPECT, AND CONTAINING
A NOTICE OF A HEARING  ...  ."  15 U.S.C. SEC. 21(B).  SECTION 16, 15
U.S.C. SEC. 26, EXCEPTS FROM THE POWER OF PRIVATE PERSONS TO BRING SEC.
7 SUITS FOR INJUNCTIVE RELIEF ALL CASES INVOLVING MATTERS SUBJECT TO
ICC JURISDICTION.  BY THUS LIMITING THE AUTHORITY OF PRIVATE PERSONS TO
INSTITUTE COURT PROCEEDINGS TO ENJOIN SEC. 7 VIOLATIONS, THIS PROVISION
UNDERSCORES THE ICC'S RESPONSIBILITY TO ACT WHEN SUCH VIOLATIONS ARE
BROUGHT TO ITS ATTENTION. 

ONE OF THE PRINCIPAL JUSTIFICATIONS ADVANCED FOR THE ICC'S DEFERRAL
OF THE CONTROL ISSUE IS THAT THE FACTS RELEVANT TO THAT ISSUE MAY
CHANGE SO SIGNIFICANTLY DURING THE 60-DAY PERIOD THAT THE CONTROL
QUESTION COULD BE SETTLED EITHER WAY.  NO SUCH POSSIBILITY EXISTS WITH
RESPECT TO AT LEAST SOME OF THE ANTICOMPETITIVE ISSUES PRESENTED BY
REA'S APPLICATION.  WE NEED NOT ACCEPT THE ARGUMENT OF APPELLANTS,
BASED UPON THE DISTINCTION BETWEEN "EXPRESS" AND OTHER FORMS OF
TRANSPORT, SEE, E.G., RAILWAY EXPRESS AGENCY, INC., EXTENSION - NASHUA,
N.H., 91 M.C.C. 311, 322, SUSTAINED SUB NOM. AUCLAIR TRANSPORTATION,
INC. V. UNITED STATES, 221 F. SUPP. 328 (D. MASS.), AFF'D, 376 U.S.
514, THAT THE 20% STOCK ACQUISITION WOULD ITSELF VIOLATE SEC. 7 BECAUSE
REA CONTROLS 88% AND GREYHOUND 7% OF THE "EXPRESS" MARKET.  FOR IF
APPELLEES REA AND GREYHOUND ARE CORRECT THAT, BECAUSE OF THE INCREASING
CROSS-COMPETITION AMONG GROUPS CARRYING TRANSPORT, IT IS IMPOSSIBLE TO
CATEGORIZE REA AS A CARRIER OF "EXPRESS," THEN THE CLAIMS OF APPELLANT
TRUCK LINES, FREIGHT FORWARDERS AND TRUCKING ASSOCIATIONS TAKE ON ADDED
SIGNIFICANCE.  IT IS PRECISELY THE INCREASING DIVERSIFICATION OF REA'S
TRANSPORT ACTIVITY, TOGETHER WITH GREYHOUND'S CONSIDERABLE CAPACITY AND
THE ECONOMIES AND EFFICIENCIES THE TWO COMPANIES INTEND TO EFFECTUATE
JOINTLY, THAT CONCERNS THESE APPELLANTS.    IT IS CLEAR THAT REA AND
GREYHOUND CONTEMPLATE MAJOR CHANGES IN THEIR OPERATION WHICH COULD HAVE
A SIGNIFICANT IMPACT UPON COMPETITION FOR EXPRESS AND OTHER TYPES OF
TRANSPORT WHICH THEY SEEK TO CARRY.  THE "MEMORANDUM OF UNDERSTANDING"
INTO WHICH THE COMPANIES ENTERED ABOUT THREE WEEKS BEFORE REA AGREED TO
GREYHOUND'S 20% STOCK ACQUISITION CONTEMPLATES EFFICIENCIES AND SAVINGS
THROUGH CONSOLIDATION OF FACILITIES FOR TERMINAL SERVICE, OF GARAGES,
AND OF COMMUNICATIONS, ADVERTISING AND SALES FORCES.  THESE CHANGES
MIGHT THEREFORE REALIZE LARGE SAVINGS FOR BOTH REA AND GREYHOUND, AND
IN THIS WAY AND OTHER WAYS SIGNIFICANTLY STRENGTHEN THEIR COMPETITIVE
POSITION.  AND THE MEMORANDUM EXPRESSES A DETERMINATION TO ENGAGE IN
AGGRESSIVE ACTION TO CAPTURE LARGER SHARES OF EXPRESS AND TRANSPORT
BUSINESS, ESPECIALLY BY UTILIZING GREYHOUND'S BUS OPERATIONS AS A
COMPLEMENT TO REA'S AIR AND RAIL SERVICE.  "THE CONSOLIDATION OF EFFORT
BY THE TWO COMPANIES," THE MEMORANDUM STATES, "WOULD CREATE A NEW
MARKET WITH REVENUE OPPORTUNITY ARISING FROM A COMPLETE PACKAGE EXPRESS
SERVICE TO THE PUBLIC."  THE "NEW ABILITY" OF THE AIR EXPRESS SERVICE
TO REACH OFF-AIRLINE POINTS WOULD ADD SIGNIFICANTLY TO REA AND
GREYHOUND REVENUES, AND THE NEW MARKET WOULD HAVE AN ESTIMATED GROWTH
POTENTIAL OF 10% PER YEAR.  SIMILARLY, RAIL-BUS SERVICE WAS EXPECTED TO
GENERATE MILLIONS IN "NEW BUSINESS," AND TO "CREATE A NEW CAPABILITY
FOR THE TWO CARRIERS TO COMPETE IN THE LTL (LESS-THAN-LOAD) MARKET. 
THE ONLY FORESEEABLE LIMITATION TO THE GROWTH OF THIS SERVICE WOULD BE
THE PHYSICAL SPACE LIMITATIONS OF GREYHOUND'S FLEET." 

THERE IS NOTHING IN THE RECORD TO REBUT THE ALLEGATIONS OF MANY OF
THE APPELLANTS THAT COOPERATION BETWEEN GREYHOUND AND REA OF THE SORT
CONTEMPLATED BY THE MEMORANDUM AIDED BY THE 20% STOCK ACQUISITION WILL
RESULT IN SERIOUS HARM TO APPELLANTS INDIVIDUALLY AND TO THE PUBLIC
INTEREST WHICH THEY SERVE.  THE FREIGHT FORWARDERS FEAR A GREAT
REDUCTION IN THEIR BUSINESS, AS DO THE BUS COMPANIES.  SOME OF THE BUS
COMPANIES, WHICH ENGAGE IN COMMUTER TRANSPORT, CLAIM THAT GREYHOUND-REA
COOPERATION WOULD DEPRIVE THEM OF THEIR EXPRESS BUSINESS, AND THAT,
SINCE THAT BUSINESS MAKES ECONOMICALLY FEASIBLE THEIR COMMUTER
OPERATIONS, WOULD COMPEL THE TERMINATION OF SERVICES ESSENTIAL TO THE
PUBLIC INTEREST. 

IT CANNOT BE SAID WITH ASSURANCE THAT DEFERRAL OF CONSIDERATION OF
THE ANTICOMPETITIVE ISSUES WILL IN NO WAY PREJUDICE APPELLANTS OR THE
PUBLIC INTEREST.  THE FACT THAT THE RAILROADS PRESENTLY CONTROL THE REA
BOARD OF DIRECTORS IS HARDLY RELEVANT TO THAT QUESTION.  IT IS NOT THE
POSSIBILITY OF CONTROL THAT MAY PREJUDICE APPELLANTS AND THE PUBLIC
INTEREST, BUT SIMPLY THE FACT THAT WITH GREYHOUND HOLDING 20% OF REA'S
STOCK THERE IS LIKELY TO BE IMMEDIATE AND CONTINUING COOPERATION
BETWEEN THE COMPANIES, COOPERATION WHICH APPELLANTS CLAIM WILL BE TO
THEIR DETRIMENT AND WHICH THE GOVERNMENT CONCEDES MAY BE AGAINST THE
PUBLIC INTEREST.  IF APPELLANTS ARE CORRECT, AND IF SUCH AN ALLIANCE
WOULD IN FACT BE AGAINST THE PUBLIC INTEREST, THEN SEC. 7 OF THE
CLAYTON ACT REQUIRES THAT IT BE STOPPED IN ITS INCIPIENCY.  CF. FTC V.
DEAN FOODS CO., 384 U.S. 597, 606, N. 5. 

WE ARE TOLD THAT REA IS IN NEED OF FUNDS, AND THAT ICC APPROVAL OF
THE 20% STOCK ACQUISITION ASSURES THAT REA WILL OBTAIN CAPITAL AND GAIN
A MEASURE OF INDEPENDENCE FROM THE RAILROADS.  THERE IS CERTAINLY
SUPPORT FOR THE POSITION THAT REA NEEDS TO FREE "ITSELF FROM THE
CONTROL AND DOMINATION PREVIOUSLY EXERCISED BY ITS RAILROAD
SHAREHOLDERS OVER ITS OPERATIONS."  80 ICC ANN. REP., P. 22 (1966). 
THE STRONG TIES BETWEEN REA AND THE RAILROADS LED TO THE OPERATION OF
REA IN THE RAILROADS' OWN INTERESTS, WITHOUT REGARD TO THEIR
COINCIDENCE WITH REA'S BEST INTERESTS OR THE PUBLIC INTEREST.   PRIOR
TO A 1959 AGREEMENT, GENERATED IN LARGE PART BY REA LOSSES, SEE EXPRESS
CONTRACT, 1959, SUPRA, 308 I.C.C., AT 546, REA WAS REQUIRED TO
DISTRIBUTE TRAFFIC AMONG CARRIERS ON THE BASIS OF EXISTING TRAFFIC
PATTERNS, AND THE CONSENT OF RAIL CARRIERS OPERATING BETWEEN GIVEN
POINTS WAS REQUIRED BEFORE REA COULD UTILIZE CARRIERS OTHER THAN
RAILROADS BETWEEN THOSE POINTS.  CHANGES IN THESE LIMITATIONS HAVE
ENABLED REA TO FINANCE SOME IMPROVEMENTS AND STEADILY TO INCREASE ITS
CORPORATE SURPLUS.  STUDY OF REA EXPRESS, STAFF LIAISON GROUP V-C, CAB,
FMC & ICC 24-26 (1965).  BUT IT DOES NOT FOLLOW THAT REA WILL BE ANY
BETTER OFF IN THE LONG RUN, OR THAT THE PUBLIC INTEREST WILL BE
ADVANCED, IF ITS OWNERSHIP SHIFTS IN PART OR ENTIRELY TO GREYHOUND. 

WHILE THE HISTORY OF REA DOES NOT IN ITSELF PROVIDE A BLUEPRINT FOR
ITS FUTURE, IT DOES "AFFORD A BASIS FOR CONSIDERING THE LAWFULNESS OF
REA'S STATUS AND ACTIVITIES, AND THE ECONOMIC DESIRABILITY OF ITS
APPARENT DIRECTION OF GROWTH."  STUDY, OP. CIT. SUPRA, AT 3.  THAT
HISTORY INDICATES THAT THERE MAY BE SOME RELATIONSHIP BETWEEN REA'S
DEPRESSED STATE AND ITS CLOSE TIES WITH RAILROADS.  BEFORE ACTING ON
THIS PREMISE, HOWEVER, THE ICC MUST AT LEAST CONSIDER THE QUESTION
WHETHER A GIVEN COURSE OF ACTION WILL IN FACT ALLEVIATE THE PROBLEM. 
IF RAILROAD OWNERSHIP OPERATED IN THE PAST TO DEPRIVE REA OF AN
OPPORTUNITY TO PROSPER AND SERVE THE PUBLIC INTEREST, IT IS NOT
INCONCEIVABLE THAT PARTIAL OWNERSHIP BY GREYHOUND WILL HAVE THE SAME
RESULT.  GREYHOUND, PRESUMABLY, IS NO LESS LIKELY TO ACT IN ITS OWN
INTEREST.  IF THE RAILROADS OPERATED REA, AS APPELLEES CONTEND, TO
MINIMIZE COMPETITION FOR TRANSPORT GENERALLY BETWEEN REA AND THE
RAILROADS, AND FOR EXPRESS BETWEEN THE RAILROADS THEMSELVES AND BETWEEN
RAILROADS AND OTHER MODES OF TRANSPORT, HOW WILL PARTIAL OR COMPLETE
OWNERSHIP BY GREYHOUND CHANGE THINGS?  EVEN IF ONLY PARTIAL OWNERSHIP
RESULTS, MAY GREYHOUND AND THE RAILROAD OWNERS OPERATE REA SO AS TO
MINIMIZE COMPETITION BETWEEN REA AND THEMSELVES FOR TRANSPORT
GENERALLY?  WHAT EFFECT, FOR EXAMPLE, WOULD PARTIAL OWNERSHIP BY
GREYHOUND HAVE UPON THE RECENT EFFORTS OF REA TO ADD TO ITS EXPRESS
OPERATIONS THE HAULING OF LARGER AND MORE VARIED VOLUMES OF FREIGHT,
EFFORTS WHICH BRING IT INTO COMPETITION WITH GREYHOUND AND OTHER BUS
LINES AS WELL AS WITH TRUCK LINES AND FREIGHT FORWARDERS?  MOREOVER,
WHAT ASSURANCE IS THERE THAT REA WILL NOT TEND TO ROUTE SHIPMENTS VIA
GREYHOUND IN PREFERENCE TO MORE EFFICIENT OR ECONOMICAL CARRIERS OR
MODES, JUST AS THE RAILROADS BOUND REA TO USE THEIR LINES AS OPPOSED TO
OTHER MODES, ABSENT THEIR APPROVAL?  WE ASSUME THAT REA NEEDS FUNDS AND
WOULD BE BETTER OFF MORE INDEPENDENT FROM THE RAILROADS, BUT BEFORE THE
ICC CAN USE THESE REASONS TO JUSTIFY A DIVERSIFICATION OF OWNERSHIP IT
MUST AT LEAST CONSIDER WHETHER THE SPECIFIC ACTION APPROVED MAY OPERATE
TO THE DETRIMENT OF REA OR THE PUBLIC INTEREST. 

THERE IS, FINALLY, LITTLE MERIT TO THE GOVERNMENT'S ARGUMENT THAT
DEFERRAL OF THE ANTICOMPETITIVE ISSUES IS STRONGLY SUPPORTED BY
CONSIDERATIONS OF ADMINISTRATIVE CONVENIENCE.  THE ONLY CIRCUMSTANCE IN
WHICH THE ANTICOMPETITIVE ISSUES MAY BE ELIMINATED FROM THE CASE IS IF
GREYHOUND, THWARTED AT THE END OF THE 60 DAYS IN ITS PLANS TO CONTROL
REA, WERE TO DISPOSE OF ITS 20% INTEREST.  BUT THE ICC HAN HARDLY
JUSTIFY DEFERRAL OF CONSIDERATION OF THE CONSEQUENCES OF A TRANSACTION
ON THE POSSIBILITY THAT THE PROBLEMS ITS APPROVAL CREATES MAY SHORTLY
VANISH BY A REVERSAL OF THE TRANSACTION ITSELF.  OF COURSE, IF, AS
APPELLEES CLAIM, IT IS MOST LIKELY THAT GREYHOUND WILL ACQUIRE NO
FURTHER STOCK, THEN CONSIDERATION OF THOSE CONSEQUENCES NOW WOULD NOT
BE WASTED EFFORT.  AND THE ARGUMENT OF WASTED EFFORT IS STILL LESS
PERSUASIVE IF APPELLEES ARE PROVED WRONG AND GREYHOUND DOES ACQUIRE
MORE STOCK.   FOR THE MOST SIGNIFICANT QUESTION WHICH THE ICC MUST FACE
IS WHETHER IT IS IN THE PUBLIC INTEREST THAT REA CONTINUE TO BE OWNED
BY OTHER TRANSPORT COMPANIES, AND SPECIFICALLY BY GREYHOUND.  ONCE THIS
QUESTION IS RESOLVED AS TO THE 20% STOCK ACQUISITION, AND THE
CONSEQUENCES OF THAT ACQUISITION ARE FULLY WEIGHED, THE ICC'S TASK IN
ANY SUBSEQUENT PROCEEDING IF GREYHOUND ENLARGES ITS STOCK INTEREST WILL
BE FAR MORE MANAGEABLE. 

WE THEREFORE CONCLUDE THAT, ALTHOUGH THE POSSIBILITY THAT GREYHOUND
MAY NOT INCREASE ITS HOLDINGS WITHIN THE 60-DAY PERIOD MAY JUSTIFY
DEFERRAL OF RESOLUTION OF THE CONTROL ISSUE, IT DOES NOT JUSTIFY DELAY
IN CONSIDERATION OF THE ANTICOMPETITIVE EFFECTS OF THE 20%
TRANSACTION.  THE GOVERNMENT WAS CORRECT IN ITS POSITION BEFORE THE ICC
THAT THIS RECORD PLACED "BEFORE THE COMMISSION SERIOUS QUESTIONS UNDER

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED WITH DIRECTION TO
ENTER A NEW JUDGMENT REMANDING THE CASE TO THE INTERSTATE COMMERCE
COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.   IT
IS SO ORDERED. 

FN1  SECTION 20A OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 41 STAT.
494, 49 U.S.C.  SEC. 20A, PROVIDES IN PERTINENT PART: 

"(2)  IT SHALL BE UNLAWFUL FOR ANY CARRIER TO ISSUE ANY SHARE OF
CAPITAL STOCK  ...  EVEN THOUGH PERMITTED BY THE AUTHORITY CREATING THE
CARRIER CORPORATION, UNLESS AND UNTIL, AND THEN ONLY TO THE EXTENT
THAT, UPON APPLICATION BY THE CARRIER, AND AFTER INVESTIGATION BY THE
COMMISSION OF THE PURPOSES AND USES OF THE PROPOSED ISSUE AND THE
PROCEEDS THEREOF,  ...  THE COMMISSION BY ORDER AUTHORIZES SUCH ISSUE
...  .  THE COMMISSION SHALL MAKE SUCH ORDER ONLY IF IT FINDS THAT SUCH
ISSUE  ...  (A) IS FOR SOME LAWFUL OBJECT WITHIN ITS CORPORATE
PURPOSES, AND COMPATIBLE WITH THE PUBLIC INTEREST, WHICH IS NECESSARY
OR APPROPRIATE FOR OR CONSISTENT WITH THE PROPER PERFORMANCE BY THE
CARRIER OF SERVICE TO THE PUBLIC AS A COMMON CARRIER, AND WHICH WILL
NOT IMPAIR ITS ABILITY TO PERFORM THAT SERVICE, AND (B) IS REASONABLY
NECESSARY AND APPROPRIATE FOR SUCH PURPOSE." 

COMMON CARRIERS BY MOTOR VEHICLE ARE MADE SUBJECT TO THE PROVISIONS
OF SEC. 20A(2) BY SEC. 214 OF THE ACT, AS AMENDED, 49 STAT. 557, 49
U.S.C. SEC. 314. 

FN2  SECTION 5(2)(A)(I) OF THE ACT, AS AMENDED, 41 STAT. 480, 482, 49
U.S.C. SEC. 5(2)(A)(I), AUTHORIZES ANY CARRIER, WITH THE APPROVAL AND
AUTHORIZATION OF THE COMMISSION, "TO ACQUIRE CONTROL OF ANOTHER THROUGH
OWNERSHIP OF ITS STOCK OR OTHERWISE  ... ."  UPON APPLICATION OF A
CARRIER SEEKING SUCH AUTHORITY, THE COMMISSION "SHALL AFFORD REASONABLE
OPPORTUNITY FOR INTERESTED PARTIES TO BE HEARD," AND IF "THE COMMISSION
FINDS THAT, SUBJECT TO SUCH TERMS AND CONDITIONS AND SUCH MODIFICATIONS
AS IT SHALL FIND TO BE JUST AND REASONABLE, THE PROPOSED TRANSACTION IS
WITHIN THE SCOPE OF SUBDIVISION (A)  ...  AND WILL BE CONSISTENT WITH
THE PUBLIC INTEREST, IT SHALL ENTER AN ORDER APPROVING AND AUTHORIZING
SUCH TRANSACTION, UPON THE TERMS AND CONDITIONS, AND WITH THE
MODIFICATIONS, SO FOUND TO BE JUST AND REASONABLE  ...  ."  SEC.
5(2)(B). 

FN3  SECTION 7 OF THE CLAYTON ACT, AS AMENDED, 38 STAT. 731, 15
U.S.C. SEC. 18, PROVIDES IN PERTINENT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK  ...  OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

FN4  SECTION 20A WAS ORIGINALLY SEC. 437(1) OF H.R. 10453, 66TH
CONG., WHICH WAS ALMOST IDENTICAL TO EARLIER LEGISLATION PASSED BY THE
HOUSE IN 1910 AND 1914.  SEE 58 CONG. REC.  8317-8318 (1919).  THE 1910
VERSION LED TO A STUDY WHICH CONDEMNED AS A "PUBLIC EVIL"
INTERCORPORATE HOLDINGS OF RAILROAD STOCK.  REPORT OF THE RAILROAD
SECURITIES COMMISSION, H.R. DOC. NO. 256, 62D CONG., 2D SESS., 21
(1911).  THESE FINDINGS WERE PART OF THE BACKGROUND AGAINST WHICH
CONGRESS EVENTUALLY PASSED SEC. 20A, ALONG WITH THE FEDERAL TRADE
COMMISSION AND CLAYTON ACTS. 

FN5  SECTION 5(11), 49 U.S.C. SEC. 5(11), PROVIDES THAT "ANY CARRIERS
OR OTHER CORPORATIONS, AND THEIR OFFICERS AND EMPLOYEES AND ANY OTHER
PERSONS, PARTICIPATING IN A TRANSACTION APPROVED OR AUTHORIZED  ...
SHALL BE AND THEY ARE RELIEVED FROM THE OPERATION OF THE ANTITRUST LAWS
...  ." 

FN6  SECTION 11 OF THE CLAYTON ACT, 15 U.S.C. SEC. 21, PROVIDES IN
PERTINENT PART:  "(A) AUTHORITY TO ENFORCE COMPLIANCE WITH  ...  SEC. 7
BY THE PERSONS RESPECTIVELY SUBJECT THERETO IS VESTED IN THE INTERSTATE
COMMERCE COMMISSION WHERE APPLICABLE TO COMMON CARRIERS SUBJECT TO THE
INTERSTATE COMMERCE ACT, AS AMENDED  ...  .  (B) WHENEVER THE
COMMISSION  ...  SHALL HAVE REASON TO BELIEVE THAT ANY PERSON IS
VIOLATING  ...  SEC. 7 IT SHALL ISSUE  ...  A COMPLAINT  ...
CONTAINING A NOTICE OF A HEARING  ...  .  THE PERSON SO COMPLAINED OF
SHALL HAVE THE RIGHT TO  ...  SHOW CAUSE WHY AN ORDER SHOULD NOT BE
ENTERED BY THE COMMISSION  ...  REQUIRING SUCH PERSON TO CEASE AND
DESIST FROM THE VIOLATION  ...  ." 

FN7  IN PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U.S. 296, WE
HELD THAT CONGRESS HAD ENTRUSTED THE NARROW QUESTIONS THERE PRESENTED
TO THE CAB; BUT THE VIOLATIONS ALLEGED WERE OF THE SHERMAN ACT, WHICH
UNLIKE THE CLAYTON ACT, 15 U.S.C. SEC. 21, SUPRA, N. 6, CONTAINS NO
PROVISION IMPOSING AN AFFIRMATIVE DUTY UPON THE AGENCY TO ENFORCE THE
ACT'S PROVISIONS.  THE INDUSTRY THERE WAS ONE "REGULATED UNDER A REGIME
DESIGNED TO CHANGE THE PRIOR COMPETITIVE SYSTEM," ID., AT 301, AND THE
CAB COULD HAVE RETAINED POWER AND GRANTED ANTITRUST IMMUNITY FOR THE
ACTIONS INVOLVED HAD THEY OCCURRED AFTER PASSAGE OF SEC. 411 OF THE
CIVIL AERONAUTICS ACT OF 1938, 52 STAT. 1003, ID., AT 312.    FN8  A
CHANGE IN THE AGREEMENT PROVIDING THAT GREYHOUND SHOULD OFFER TO
PURCHASE THE STOCK HELD BY THE RAILROADS BEFORE THE ISSUANCE OF THE
500,000 SHARES WOULD HAVE DEVELOPED THE RELEVANT FACTS, AND MADE
UNNECESSARY POSTPONEMENT OF THE DETERMINATION OF EITHER THE CONTROL OR
COMPETITION ISSUE. 

FN9  IF THE DISSIDENT REA RAILROAD STOCKHOLDERS EXERCISED THEIR RIGHT
OF FIRST REFUSAL TO BUY THE 1,000,000 SHARES THE OTHER RAILROAD
STOCKHOLDERS MIGHT SELL, THEIR COMBINED STOCKHOLDINGS WOULD BE
INCREASED TO OVER 50% OF THE REA SHARES.  SEE BRIEF FOR THE UNITED
STATES AND ICC, P. 18, N. 9. 

MR. JUSTICE WHITE, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH MOST OF THE COURT'S OPINION, WITH ITS HOLDING THAT
COMPETITIVE FACTORS MUST BE CONSIDERED IN A SEC. 20A PROCEEDING AND
WITH ITS RULING THAT A HEARING SHOULD HAVE BEEN HELD BY THE COMMISSION
IN THIS CASE BEFORE APPROVING THE ISSUANCE OF THE SECURITIES BY RAILWAY
EXPRESS AGENCY, INC., TO GREYHOUND CORPORATION.  BUT I AM DOUBTFUL
ABOUT THOSE PARTS OF THE COURT'S OPINION WHICH INDICATE THAT ALTHOUGH
THE PUBLIC INTEREST REQUIRES THE CONSIDERATION OF COMPETITIVE FACTORS
IN CONNECTION WITH THE ISSUANCE OF STOCK UNDER SEC. 20A, THE PUBLIC
INTEREST ALSO DEMANDS THAT IF A LESSENING OF COMPETITION IS FOUND OR
THREATENED WITHIN THE MEANING OF SEC. 7 OF THE CLAYTON ACT, THE
ISSUANCE MUST BE DISAPPROVED.  UNDER SEC. 5 OF THE INTERSTATE COMMERCE
ACT, COMPETITIVE FACTORS MUST ALSO BE CONSIDERED IN DETERMINING THE
PUBLIC INTEREST, BUT THERE A BALANCED VIEW OF THE PUBLIC INTEREST
PERMITS THE APPROVAL OF A MERGER OR CONSOLIDATION DESPITE ANY ACTUAL OR
PROBABLE COMPETITIVE IMPACT.  MERGERS WHICH WOULD VIOLATE SEC. 7 ARE
THUS PERMISSIBLE UNDER SEC. 5 IF FOUND IN THE PUBLIC INTEREST BUT ONLY
THOSE ACQUISITIONS OF STOCK WHICH ARE NOT SUSPECT UNDER SEC. 7 OF THE
CLAYTON ACT ARE PERMISSIBLE UNDER SEC. 20A. 

IN THE LAST ANALYSIS THE COURT RESTS THIS RATHER ODD DISTINCTION ON
THE ACT ITSELF - THAT IS, CONGRESS IS SAID TO HAVE INTENDED THIS VERY
RESULT BECAUSE IT PROVIDED IN SEC. 5(11) THAT THE APPROVAL OF A
TRANSACTION UNDER SEC. 5 RELIEVES THE PARTIES FROM ANTITRUST LIABILITY
AND DID NOT SO PROVIDE IN CONNECTION WITH SEC. 20A TRANSACTIONS.  I DO
NOT THINK, HOWEVER, THAT THIS ENDS THE MATTER, AND I FIND UNCONVINCING
THE SPECULATIVE REASONS THE COURT GIVES FOR SUGGESTING THAT CONGRESS
INTENDED ANY SUCH RESULT. 

MUCH MORE PERSUASIVE TO ME IS THE APPROACH OF PAN AMERICAN WORLD
AIRWAYS V. UNITED STATES, 371 U.S. 296.  THAT CASE INVOLVED THE CIVIL
AERONAUTICS ACT OF 1938, 52 STAT. 973, RE-ENACTED AS THE FEDERAL
AVIATION ACT OF 1958, 72 STAT. 731, 49 U.S.C. SEC. 1301 ET SEQ., WHICH
PROVIDED ANTITRUST IMMUNITY FOR TRANSACTIONS APPROVED BY THE CIVIL
AERONAUTICS BOARD UNDER SECS. 408, 409, AND 412.  THE COURSE OF CONDUCT
ATTACKED BY THE UNITED STATES UNDER SEC. 1 OF THE SHERMAN ACT IN PAN
AMERICAN WAS NOT, HOWEVER, WITHIN ANY OF THESE SECTIONS.  THE COURT,
NEVERTHELESS, HELD THAT THE CONDUCT WAS CLEARLY OF THE KIND
SPECIFICALLY COMMITTED TO REGULATION BY THE BOARD UNDER OTHER SECTIONS
OF THE ACT AND WAS UNASSAILABLE IN AN INDEPENDENT CIVIL ACTION BROUGHT
BY THE UNITED STATES UNDER SEC. 1 OF THE SHERMAN ACT. 

IN THE CASE BEFORE US, SEC. 20A(2) PROVIDES THAT IT SHALL BE UNLAWFUL
FOR ANY CARRIER TO ISSUE SECURITIES UNLESS APPROVED BY THE COMMISSION
AFTER FINDING THAT THE ISSUANCE: 

"(A)  IS FOR SOME LAWFUL OBJECT WITHIN ITS CORPORATE PURPOSES, AND
COMPATIBLE WITH THE PUBLIC INTEREST, WHICH IS NECESSARY OR APPROPRIATE
FOR OR CONSISTENT WITH THE PROPER PERFORMANCE BY THE CARRIER OF SERVICE
TO THE PUBLIC AS A COMMON CARRIER, AND WHICH WILL NOT IMPAIR ITS
ABILITY TO PERFORM THAT SERVICE, AND (B) IS REASONABLY NECESSARY AND
APPROPRIATE FOR SUCH PURPOSE." 

THE COMMISSION MAY GRANT AN APPLICATION UNDER SEC. 20A IN WHOLE OR IN
PART WITH SUCH MODIFICATIONS AND ON SUCH TERMS AND CONDITIONS AS THE
COMMISSION MAY DEEM APPROPRIATE, AND IT MAY FROM TIME TO TIME MAKE SUCH
SUPPLEMENTAL ORDERS WITH RESPECT TO THE TRANSACTION AS IT MAY DEEM
NECESSARY.  SEC. 20A(3).  MOREOVER, IT IS EXPRESSLY PROVIDED THAT "THE
JURISDICTION CONFERRED UPON THE COMMISSION BY THIS SECTION SHALL BE
EXCLUSIVE AND PLENARY, AND A CARRIER MAY ISSUE SECURITIES AND ASSUME
OBLIGATIONS OR LIABILITIES IN ACCORDANCE WITH THE PROVISIONS OF THIS
SEC.  20A(7). 

HAVING THESE POWERS CONFERRED UPON IT IN THE NAME OF THE PUBLIC
INTEREST, THE COMMISSION MAY, IN MY VIEW, APPROVE THE ISSUANCE OF STOCK
BY A CARRIER IF IT DEEMS THE PUBLIC INTEREST REQUIRES IT EVEN THOUGH
THERE MAY BE A PROBABLE LESSENING OF COMPETITION WHICH OTHERWISE WOULD
VIOLATE SEC. 7 OF THE CLAYTON ACT.  THIS SEEMS TO BE PRECISELY WHAT
CONGRESS INTENDED BY EXPRESSLY PROVIDING IN SEC. 7 OF THE CLAYTON ACT
ITSELF THAT "NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO
TRANSACTIONS DULY CONSUMMATED PURSUANT TO AUTHORITY GIVEN BY THE  ...
INTERSTATE COMMERCE COMMISSION  ...  UNDER ANY STATUTORY PROVISION
VESTING SUCH POWER IN SUCH COMMISSION  ...  ."  15 U.S.C. SEC. 18. 

IT MAKES VERY LITTLE SENSE TO ME TO HOLD THAT A STOCK ACQUISITION
INVOLVING CONTROL MAY BE APPROVED IF THE PUBLIC INTEREST REQUIRES IT,
DESPITE ANY ACTUAL ANTICOMPETITIVE IMPACT, AND YET TO FORBID THE
APPROVAL OF AN ACQUISITION WHICH FALLS SHORT OF CONTROL BUT WHICH "MAY"
INJURE COMPETITION WITHIN THE MEANING OF THE CLAYTON ACT. 

THUS WHILE I AGREE THAT A HEARING SHOULD BE REQUIRED BEFORE THE
COMMISSION APPROVES THE ISSUANCE OF THE SECURITIES IN THIS CASE, I
WOULD MAKE IT CLEAR THAT COMPETITIVE CONSIDERATIONS ARE ONLY SOME OF
THE FACTORS TO BE WEIGHED IN REACHING A DECISION CONCERNING THE PUBLIC
INTEREST, MUCH AS THE COURT HAS VIEWED THE PROCEEDINGS UNDER SEC. 5. 
MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67.  AT THE VERY LEAST I
WOULD NOT NOW DECIDE THAT THE COMMISSION IS POWERLESS TO APPROVE THE
ISSUANCE OF SECURITIES UNDER SEC. 20A IF IT DETERMINES THAT THE IMPACT
ON COMPETITION WOULD OTHERWISE BE BARRED BY THE CLAYTON ACT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THIS CASE INVOLVES A PROPOSED STOCK ISSUE BY APPELLEE RAILWAY EXPRESS
AGENCY, INC. (REA), OF 500,000 SHARES OF PREVIOUSLY AUTHORIZED BUT
UNISSUED SHARES OF ITS COMMON STOCK.  UNDER SEC. 20A(2) OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 20A(2), THIS TYPE OF STOCK
TRANSACTION MUST BE AUTHORIZED BY THE INTERSTATE COMMERCE COMMISSION,
WHICH MUST DETERMINE WHETHER THE ISSUE IS "FOR SOME LAWFUL OBJECT
WITHIN  ...  THE APPLICANT'S CORPORATE PURPOSES, AND COMPATIBLE WITH
THE PUBLIC INTEREST  ...  ." 

UNDER THE PROPOSED TRANSACTIONS REA CONTRACTED TO SELL THIS BLOCK OF
SHARES FOR $10,000,000 TO THE GREYHOUND CORPORATION, WHICH WOULD THEN
OFFER TO PURCHASE WITHIN A 60-DAY PERIOD AN ADDITIONAL 1,000,000 SHARES
FROM EXISTING STOCKHOLDERS, ALL OF WHOM ARE RAILROADS AND ALL OF WHOM
HOLD RIGHTS OF FIRST REFUSAL AS TO THE SALE OF EXISTING REA SHARES. 
SOME OF THESE RAILROAD-STOCKHOLDERS HAVE BEEN OPPOSED TO GREYHOUND'S
ENTRY INTO REA AND HAVE EXPRESSED THEIR INTENTION TO EXERCISE THEIR PRE
EMPTIVE RIGHTS.  IT IS UNDISPUTED THAT IF GREYHOUND NEVERTHELESS
SUCCEEDS IN PURCHASING THESE ADDITIONAL SHARES IT WOULD BE IN A
POSITION TO EXERCISE A SUBSTANTIAL DEGREE OF CONTROL OVER REA, CF.
ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, 145, AND THAT SUCH
CONTROL WOULD REQUIRE THE APPROVAL OF THE ICC UNDER SEC. 5(2) OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 5(2).  IT WAS ALSO ALLEGED BY
THE UNITED STATES AS AN INTERVENOR BEFORE THE ICC THAT THE POSSIBLE
EXERCISE OF CONTROL BY GREYHOUND OVER REA AND AN ANTICIPATED CO
ORDINATION OF CERTAIN SERVICES BY THE TWO CARRIERS (FN1) RAISED SERIOUS
ANTITRUST QUESTIONS UNDER SEC. 7 OF THE CLAYTON ACT, 15 U.S.C. SEC. 18,
WHICH THE ICC IS BOUND TO ENFORCE AS TO REGULATED CARRIERS, CLAYTON ACT
SEC. 11, 15 U.S.C. SEC. 21. 

THE INTERSTATE COMMERCE COMMISSION DID NOT DEAL WITH THE SUBSTANCE OF
THESE "CONTROL" AND "ANTITRUST" ISSUES.  IT FOUND THAT REA "URGENTLY
NEEDS THE PROCEEDS OF $10,000,000 ...  ," (FN2) AND THAT IT WAS NOT
NECESSARY, GIVEN THE UNCERTAINTY AS TO THE FUTURE RELATIONSHIP OF
GREYHOUND AND REA, TO DEAL WITH THE CONTROL ISSUE AT THAT TIME.  THE
COMMISSION NOTED SPECIFICALLY THAT "IF IN THE FUTURE THE ACQUISITION OF
CONTROL OR POWER TO CONTROL, OR OTHER MATTER OR TRANSACTION TO WHICH
OPPORTUNITY WILL BE AVAILABLE FOR ALL INTERESTED PERSONS TO INTERPOSE
THEIR OPPOSITION  ...  ." 

ON REVIEW, A THREE-JUDGE DISTRICT COURT FOR THE DISTRICT OF COLORADO
SUSTAINED THE COMMISSION'S ORDER, 255 F. SUPP. 704.  IT READ THE ICC'S
DECISION, AS DOES THIS COURT, AS SAYING ONLY "THAT IN THE CIRCUMSTANCES
PRESENTED THE PUBLIC INTEREST REQUIRES THE ISSUANCE OF THE STOCK AND
THAT DETERMINATION OF THE COMPETITIVE EFFECTS WILL BE APPROPRIATE FOR
CONSIDERATION AFTER THE CHAIN OF EVENTS STARTED BY THE STOCK ISSUANCE
IS ASCERTAINABLE RATHER THAN CONJECTURAL."  ID., AT 709.  THE DISTRICT
COURT THEN HELD THAT "IN THE CIRCUMSTANCES IT IS NOT OUR PEROGATIVE TO
INTERFERE WITH WHAT WE DEEM TO BE A REASONABLE EXERCISE BY THE
COMMISSION OF ITS DISCRETIONARY POWERS."  ID., AT 710. 

I WOULD AFFIRM THIS JUDGMENT OF THE DISTRICT COURT, AND THEREFORE
MUST DISSENT FROM TODAY'S DECISION.  THE COURT HOLDS THAT "THE ICC IS
REQUIRED, AS A GENERAL RULE, UNDER ITS DUTY TO DETERMINE THAT THE
PROPOSED TRANSACTION IS IN THE 'PUBLIC INTEREST' AND FOR A 'LAWFUL
OBJECT,' TO CONSIDER THE CONTROL AND ANTICOMPETITIVE CONSEQUENCES
BEFORE APPROVING STOCK ISSUANCES UNDER SEC. 20A(2)."  ANTE, P. 498. 
THE COURT NOTES, HOWEVER, THAT "THIS DOES NOT MEAN THE ICC MUST GRANT A
HEARING IN EVERY CASE, OR THAT IT MAY NEVER DEFER CONSIDERATION OF
ISSUES WHICH ARISE WHEN SPECIAL CIRCUMSTANCES ARE PRESENT," IBID., BUT
CONCLUDES THAT WHILE IT WAS NOT AN ABUSE OF DISCRETION TO DEFER
CONSIDERATION TO THE "CONTROL" QUESTION RAISED BY THE INTERVENORS, IT
WAS IMPROPER TO REFUSE TO DEAL WITH THE "ANTICOMPETITIVE" ISSUES AT
THIS STAGE.  I BELIEVE THAT THIS DECISION MISAPPLIES THE RELEVANT
STATUTES AND SERIOUSLY IMPEDES SOUND ADMINISTRATIVE PRACTICE. 

    I. 

STOCK ISSUES.  CONGRESS' DOMINANT CONCERN WAS "TO MAINTAIN A SOUND
STRUCTURE FOR THE  ...  SUPPORT OF RAILROAD CREDIT," 1 SHARFMAN, THE
INTERSTATE COMMERCE COMMISSION 190 (1931), (FN3) AND NOTHING IN THE
LEGISLATIVE BACKGROUND OF THE SECTION INDICATES THAT THE WORDS "FOR
SOME LAWFUL OBJECT WITHIN ITS CORPORATE PURPOSES, AND COMPATIBLE WITH
THE PUBLIC INTEREST" WERE INTENDED TO ENCOMPASS ISSUES OF ANTITRUST
LAW.  OF COURSE THE PHRASE "THE PUBLIC INTEREST" IS BROAD, AND IN THE
CONTEXT OF OTHER LEGISLATION COMPARABLE TERMS HAVE BEEN HELD TO EMBRACE
ANTITRUST MATTERS.  E.G., FEDERAL COMMUNICATIONS ACT, SEC. 307, 48
STAT. 1083, 47 U.S.C. SEC. 307, AS CONSTRUED IN FCC V. RCA
COMMUNICATIONS, INC., 346 U.S. 86.  BUT THE MERE INCLUSION OF SUCH
LANGUAGE IN THIS INSTANCE IS NOT THE END OF OUR INQUIRY, FOR SEC. 20A
MUST BE READ IN ITS ENTIRETY AND INTERPRETED IN CONJUNCTION WITH OTHER

IN CONTRAST TO SEC. 20A, WHICH BY ITS DETAILED AND EXPLICIT TERMS
DEALS ONLY WITH THE PROBLEM OF FISCAL RESPONSIBILITY, (FN4) SEC. 5 OF
THE ACT, ENACTED AT THE SAME TIME, (FN5) DEALS SPECIFICALLY WITH
PROBLEMS OF "CONTROL."  INDEED, THE STANDARDS LAID OUT IN SEC. 5 ARE
DIRECTLY RELEVANT TO THE VARIOUS FACTUAL ISSUES HYPOTHESIZED BY THE
COURT IN PART IV OF ITS OPINION.  SECTION 5 DOES NOT DEAL SOLELY WITH
TRANSFERS OF SHARES, BUT WITH ANY LEASE OR CONTRACT BETWEEN TWO
CARRIERS FOR THE OPERATION OF THEIR PROPERTIES, SECS. 5(2)(A)(I), 5(4);
SEE GILBERTVILLE TRUCKING CO. V. UNITED STATES, 371 U.S. 115, 125.  IT
WOULD THUS APPEAR THAT ANY TYPE OF AGREEMENT BETWEEN GREYHOUND AND REA
FOR THE INTEGRATION OF THEIR OPERATIONS WOULD - WITH OR WITHOUT THE
SALE OF SHARES - FALL WITHIN THE PURVIEW OF SEC. 5. 

ESTABLISHES THE PUBLIC INTEREST CRITERIA WHICH THE ICC IS BOUND TO USE
IN MAKING THAT TYPE OF INQUIRY.  FOR EXAMPLE, THE COMMISSION MUST
CONSIDER "(1) THE EFFECT OF THE PROPOSED TRANSACTION UPON ADEQUATE
TRANSPORTATION SERVICE TO THE PUBLIC; ...  (3) THE TOTAL FIXED CHARGES
RESULTING FROM THE PROPOSED TRANSACTION; AND (4) THE INTEREST OF THE
CARRIER EMPLOYEES AFFECTED."  SEC.  5(2)(C).  THIS COURT HAS RECOGNIZED
THAT STANDARDS OF MARKET CONTROL IN THE TRANSPORTATION INDUSTRY ARE
DIFFERENT FROM THOSE GOVERNING OTHER BUSINESS TRANSACTIONS:  THE ICC
MUST TAKE ACCOUNT OF ANTITRUST POLICY IN JUDGING THE CONTROL QUESTIONS
UNDER SEC. 5, MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67, BUT
THIS INTEREST IS SIMPLY ONE OF THE RELEVANT CRITERIA, AND IF ON BALANCE
THE COMMISSION FINDS A PROPOSED UNDERTAKING TO BE IN THE PUBLIC
INTEREST THE STATUTE AUTHORIZES A GRANT OF ANTITRUST IMMUNITY TO THE
TRANSACTION.  SEC. 5(11); SEABOARD AIR LINE R. CO. V. UNITED STATES,
382 U.S. 154; MINNEAPOLIS & ST. L.R. CO. V. UNITED STATES, 361 U.S.
173; MCLEAN TRUCKING CO. V. UNITED STATES, SUPRA.  SECTION 5 THUS
COVERS FULLY THE PROBLEMS OF CONTROL; LIKEWISE, THE ANTITRUST ISSUES
ARE DEALT WITH SPECIFICALLY IN SEC. 11 OF THE CLAYTON ACT, WHICH
AUTHORIZES THE ICC TO ENFORCE SEC. 7 OF THAT ACT, FORBIDDING THE
ACQUISITION OF STOCK THE EFFECT OF WHICH "MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY."  HENCE THESE
THE COMMISSION'S JURISDICTION IN RESPECT TO THE ANTICOMPETITIVE ASPECTS
OF THIS CASE. 

FOR PROCEDURAL REASONS, TOO, SEC. 20A SEEMS INAPPROPRIATE AS A
VEHICLE TO REPLACE OR AUGMENT SEC. 5 OF THE INTERSTATE COMMERCE ACT AND
SECS. 7 AND 11 OF THE CLAYTON ACT.  WHEN A CARRIER APPLIES FOR
AUTHORIZATION TO ISSUE STOCK, THE COMMISSION MUST GIVE NOTICE TO THE
VARIOUS STATES IN WHICH THE CARRIER OPERATES SO THAT RELEVANT STATE
REGULATORY AGENCIES, WHICH ALSO SUPERVISE THE FINANCES AND CORPORATE
STRUCTURE OF THESE COMPANIES, MAY RAISE OBJECTIONS TO THE PROPOSED
TRANSACTION.  THE COMMISSION NEED NOT, HOWEVER, HOLD A HEARING BEFORE
APPROVING THE TRANSACTION.  SEC. 20A(6).  IN CONTRAST, WHEN THE ICC
DEALS WITH PROBLEMS OF CONTROL UNDER SEC. 5, IT IS BOUND NOT ONLY TO
NOTIFY THE VARIOUS STATE AUTHORITIES BUT ALSO TO "AFFORD REASONABLE
OPPORTUNITY FOR INTERESTED PARTIES TO BE HEARD."  SEC.  5(2)(B).  AND
SEC. 11 OF THE CLAYTON ACT REQUIRES THE COMMISSION TO NOTIFY THE
ATTORNEY GENERAL IF IT BELIEVES THAT ANY CARRIER IS VIOLATING SEC. 7,
AND THE ATTORNEY GENERAL HAS THE STATUTORY RIGHT TO INTERVENE IN THE
MANDATORY HEARING ON THE QUESTION. 

GIVEN THE COMPLEXITIES OF CONTROL AND ANTITRUST PROBLEMS IN THE
TRANSPORTATION FIELD, AND GIVEN THE SPECIFIC AND DETAILED PROVISIONS OF
THE STATUTE IN SEC. 5, AND IN SEC. 11 OF THE CLAYTON ACT, DEVOTED
PARTICULARLY TO THEM, IT SEEMS TO ME QUITE EVIDENT THAT THE SOUNDER
VIEW OF THE STATUTORY SCHEME IS TO REGARD SEC. 20A AS BEING LIMITED TO
MATTERS OF CORPORATE FINANCING AND SEC. 5 AND SEC. 7 AS BEING THE
SOURCE OF THE COMMISSION'S AUTHORITY AND DUTY TO DEAL WITH THESE OTHER
MATTERS. 

NONE OF THE COMMISSION CASES CITED BY THE COURT IN SUPPORT OF ITS
POSITION THAT SEC. 20A WAS ENVISIONED AS ALSO ENCOMPASSING CONTROL AND
ANTITRUST CONSIDERATIONS IS APPOSITE.  COLUMBIA TERMINALS CO. -
ISSUANCE OF NOTES, 40 M.C.C. 288, DEALT, AS THE COURT NOTES, WITH SEC.
10 OF THE CLAYTON ACT, 15 U.S.C. SEC. 20, WHICH SPECIFICALLY REQUIRES
COMMON CARRIERS IN CERTAIN SITUATIONS TO SELL SECURITIES "BY
COMPETITIVE BIDDING UNDER REGULATIONS TO BE PRESCRIBED BY RULE OR
OTHERWISE BY THE INTERSTATE COMMERCE COMMISSION."  THE ICC MERELY HELD
THAT THIS STATUTE HAD NOT BEEN REPEALED BY SEC. 20A.  THE GENERAL
LANGUAGE CITED BY THE COURT FROM STOCK OF NEW JERSEY, I.&I.R. CO., 94
I.C.C. 727, WAS WRITTEN IN A CASE IN WHICH THE ISSUE WAS WHETHER THE
APPLICANT RAILROAD COULD PAY AN INDEBTEDNESS TO ITS SOLE STOCKHOLDER,
ANOTHER RAILROAD, THROUGH A DISTRIBUTION OF STOCK AS A DIVIDEND.  THE
ICC HELD THIS METHOD OF FINANCING ACCEPTABLE; ANTITRUST CONSIDERATIONS
WERE IN NO WAY INVOLVED. 

THE THIRD ICC DECISION CITED BY THE COURT, CHESAPEAKE & O.R. CO.
PURCHASE, 271 I.C.C. 5, WOULD SEEM, IF ANYTHING, INCONSISTENT WITH ITS
VIEW OF SEC. 20A.  THERE THE COMMISSION WAS REQUESTED TO APPROVE AN
INTERLOCKING DIRECTORATE, WHICH IS FORBIDDEN UNLESS AUTHORIZED BY THE
COMMISSION PURSUANT TO SEC. 20A(12) OF THE INTERSTATE COMMERCE ACT, 49
U.S.C. SEC.  20A(12).  IN MAKING ITS DECISION THE COMMISSION DID NOT
INCORPORATE SEC. 5 CONTROL STANDARDS INTO SEC. 20A(12).  QUITE THE
CONTRARY, IT NOTED THAT "THE POLICY OF THE CONGRESS AS TO
CONSOLIDATIONS, MERGERS, AND OTHER FORMS OF CORPORATE UNIFICATION AND
ASSOCIATION IS NOW TO BE FOUND IN THE PROVISIONS OF SECTION 5," ID., AT
12; THAT NO APPLICATION UNDER SEC. 5(2) HAD BEEN FILED; AND THAT "IT
FOLLOWS THAT THE EVIDENCE PERTAINING TO CONTROL OF THE NEW YORK CENTRAL
OR ULTIMATE UNIFICATION OF THE TWO CARRIERS IS IRRELEVANT TO THE
PRINCIPAL ISSUES BEFORE US, AND MAY NOT BE CONSIDERED IN DISPOSING OF
THOSE ISSUES."  IBID.  THE COMMISSION THEN DETERMINED, UNDER ITS
ESTABLISHED STANDARDS FOR JUDGING THE ACCEPTABILITY OF AN INTERLOCKING
DIRECTORATE, ID., AT 18, THAT SUCH AN AUTHORIZATION WOULD BE IMPROPER,
BUT OBSERVED THAT "IF THE APPLICANTS ARE FIRMLY OF THE OPINION THAT THE
PROPOSED ASSOCIATION WILL RESULT IN THE BENEFITS TO THE CARRIERS AND TO
THE PUBLIC WHICH THEY CONTEND WE SHOULD FIND ON THE SHOWING THAT THEY
HAVE MADE IN THIS PROCEEDING, THERE IS NO REASON WHY THEY SHOULD NOT
FILE AN APPLICATION FOR SOME FORM OF ASSOCIATION UNDER SECTION 5(2) OF
THE ACT."  ID., AT 41-42. 

THE LACK OF AUTHORITY FOR THE COURT'S VIEW OF SEC. 20A IS NOT LIMITED
TO ADMINISTRATIVE DECISIONS.   IN THE COMPLEX ALLEGHANY CORP.
LITIGATION, SUMMARIZED BY THE COURT, ANTE, PP.  497-498, THIS COURT
SUSTAINED THE ICC'S DETERMINATION THAT IT COULD ACT UPON A SEC. 20A
APPLICATION WITHOUT INVOLVING ITSELF IN DIFFICULT ISSUES OF
INTERCORPORATE CONTROL AS THE DISTRICT COURT HAD ORDERED.  THE
PROTRACTED AND TANGLED CHARACTER OF THAT LITIGATION, UNTIL RESOLVED IN
THE INTERESTS OF SIMPLICITY BY THIS COURT'S AFFIRMANCE OF THE ICC'S
APPROACH, SHOULD BE A WARNING OF THE UNFORTUNATE CONSEQUENCES THAT MAY
FOLLOW JUDICIAL REQUIREMENTS COMPLICATING AND PROLIFERATING
ADMINISTRATIVE HEARINGS IN UNFAMILIAR FIELDS; THIS IS ESPECIALLY SO
WHERE THERE ARE, AS HERE, NUMEROUS PARTIES SOME OF WHOM HAVE A STRONG
INTEREST IN ACHIEVING DELAY. 

                                       II. 

ALTHOUGH NOT ACCEPTING THE READING OF THE ACT WHICH I HAVE URGED, THE
COURT NONETHELESS APPEARS TO RECOGNIZE THAT THE ISSUE OF "CONTROL" IS A
SEPARATE ONE FROM THAT OF FINANCIAL REGULARITY, AND ONE THAT CAN
APPROPRIATELY BE DEALT WITH IN A SEPARATE AND SUBSEQUENT PROCEEDING. 
SINCE THE COURT ALSO ACKNOWLEDGES, AS IT MUST, THAT AT THIS LATER
HEARING REA AND GREYHOUND MAY REQUEST A SEC. 5(11) EXEMPTION, AND THUS
BRING INTO PLAY ALL THE STANDARDS OF SEC. 5, I FIND THE COURT'S
INSISTENCE THAT THIS ISSUE FALLS WITHIN THE PURVIEW OF SEC. 20A RATHER
THAN SEC. 5 ESSENTIALLY AN ACADEMIC ONE.  THE ICC WILL STILL BE ABLE TO
CONDUCT ITS HEARINGS JUST AS IT WISHED TO DO HERE, EXCEPT THAT ITS
SUBSEQUENT "SEC.  5 PROCEEDING" WILL HENCEFORTH BE LABELED A "SEC.  20A
AND SEC. 5 PROCEEDING." 

GIVEN THE COURT'S RECOGNITION THAT THE ICC HAS DISCRETION TO POSTPONE
THE "CONTROL" DETERMINATION, I FIND IT DIFFICULT TO ACCEPT ITS ARGUMENT
THAT "ANTITRUST" FACTORS MAY NOT SIMILARLY BE POSTPONED. 

IT SHOULD BE RECALLED THAT THE ONLY MATTER RAISED IN THIS APPLICATION
IS REA'S DESIRE TO ISSUE 500,000 SHARES OF ITS STOCK TO "A NON-RAILROAD
PURCHASER," WHICH CONCEDEDLY WOULD BRING TO THE ISSUER CAPITAL FUNDS
REQUIRED FOR INVESTMENT PURPOSES.  UNDER THE PROPOSED TRANSACTION,
AFTER GREYHOUND PURCHASES THESE SHARES IT WILL EXTEND AN OFFER TO
PURCHASE WITHIN 60 DAYS AN ADDITIONAL 1,000,000 SHARES, AS TO WHICH
OTHER SHAREHOLDERS HOLD RIGHTS OF FIRST REFUSAL.  ALL PARTIES ARE IN
AGREEMENT THAT CONTROL AND ANTITRUST PROBLEMS WILL BE RAISED IF
GREYHOUND IS ULTIMATELY SUCCESSFUL IN EFFECTING THESE ADDITIONAL
PURCHASES.  THE ONLY QUESTION IS WHETHER THE COMMISSION CAN LEAVE THESE
QUESTIONS FOR A LATER DETERMINATION.  BECAUSE OF THE UNCERTAINTY AS TO
THE OUTCOME OF THE FURTHER STOCK PURCHASE OFFER, THE COURT AGREES THAT
POSTPONEMENT OF THE CONTROL ISSUE WAS PROPER.  BUT THIS UNCERTAINTY IS
EQUALLY CRUCIAL TO THE CLAYTON ACT ISSUES.  THE LIKELIHOOD OF A CLAYTON
ACT VIOLATION WILL OF COURSE BE INCREASED IF GREYHOUND OBTAINS THESE
ADDITIONAL SHARES AND IS IN A POSITION TO CONTROL, AND TO CONSOLIDATE
OPERATIONS WITH, REA.  ON THE OTHER HAND, IF THE SHARES ARE BOUGHT BY
SOME OF THE APPELLANTS WHOSE INTERESTS APPEAR TO BE ADVERSE TO
GREYHOUND, THE POSSIBILITY OF SUBSTANTIAL HARM TO COMPETITION WILL BE
MINIMAL.  THE CORE OF THE CLAYTON ACT QUESTION, THEN, IS INEXORABLY
TIED TO THE CONTROL QUESTION, AND THE COURT DOES NOT DENY THAT THESE
PROBLEMS OVERLAP.  IN THESE CIRCUMSTANCES I FIND IT IMPOSSIBLE TO
FOLLOW THE COURT IN HOLDING, ON THE ONE HAND, THAT THE CONTROL HEARING
WAS PERMISSIBLY POSTPONED, BUT, ON THE OTHER, THAT THE ICC ABUSED ITS
DISCRETION IN SIMILARLY DEFERRING ANY CLAYTON ACT HEARING. 

TO REQUIRE SUCH A PROLIFERATION OF HEARINGS AS TO A SINGLE
TRANSACTION - ONE INVOLVING A STRAIGHTFORWARD BUSINESS TRANSACTION
NEGOTIATED IN TERMS OF EXISTING MARKET CONDITIONS AND THE EXISTING
NEEDS OF THE PARTIES - IS BOUND TO OBSTRUCT THE SMOOTH WORKINGS OF THE
ADMINISTRATIVE PROCESS.  THE PENETRATING OBSERVATIONS OF PROFESSOR
JAFFE SEEMS TO ME ESPECIALLY PERTINENT IN THIS SITUATION: 

"I GATHER THE IMPRESSION THAT SOME JUDGES WHO QUITE INSISTENTLY
DISPLAY A 'CORRECT' ATTITUDE OF DEFERENCE ON SUBSTANTIVE ISSUES APPLY A
DIFFERENT STANDARD TO PROCEDURAL DECISIONS:  THEY DO NOT HESITATE TO
PROTRACT AND TO COMPLICATE THE ADMINISTRATIVE PROCESS.  THEIR PREMISE
MAY BE THAT THE CONSIDERATIONS THAT DICTATE DEFERENCE TO SUBSTANTIVE
DECISIONS ARE INAPPLICABLE TO PROCEDURAL ONES.  THIS IS ONLY PARTLY
TRUE  ... .  SINCE PROCEDURAL DECISIONS SHOULD BE MADE TO SERVE THE
SUBSTANTIVE TASK, IT FOLLOWS THAT EXPERTNESS IN MATTERS OF SUBSTANCE
ARE RELEVANT TO THE EXERCISE OF PROCEDURAL DISCRETION. 

" ...  AN AGENCY MUST RATION ITS LIMITED RESOURCES OF TIME, ENERGY
AND MONEY.  IT MUST DEVOTE THEM TO THOSE EXIGENT AND SOLUBLE PROBLEMS
WHICH ARE MOST NEARLY RELATED TO ITS CORE RESPONSIBILITY.   WHAT
PROBLEMS ARE MOST EXIGENT, HOW THEY CAN BEST BE SOLVED  ...  ARE
QUESTIONS THE SOLUTION TO WHICH PECULIARLY DEMANDS A FEELING FOR THE
WHOLE SITUATION  ...  .  IF A COURT IS NOT AS WELL FITTED TO SOLVE
SUBSTANTIVE PROBLEMS AS THE AGENCY, IF ON THIS LEVEL INTERMITTENT,
DISJECTED CRITICISM DISPERSES ACCOUNTABILITY, HOW MUCH MORE IS THIS
TRUE WHERE THE DEPLOYMENT OF FORCES IS INVOLVED."  JAFFE, JUDICIAL
CONTROL OF ADMINISTRATIVE ACTION 566-567 (1965). 

THE COURTS HAVE TRADITIONALLY PERMITTED BUSY AGENCIES SUBSTANTIAL
FLEXIBILITY IN FORMULATING THEIR INTERNAL PROCEDURES, AND ENCOURAGED
THEIR EFFORTS TO ELIMINATE DUPLICATIVE ACTION AND REPETITIVE HEARINGS. 
SEE, E.G., CHICAGO & N.W.R. CO. V. ATCHISON, T.&S.F.R. CO., ANTE, PP.
341-343; FEDERAL POWER COMM'N V. TENNESSEE GAS CO., 371 U.S. 145, 153
155, WHERE THE COURT APPROVED A "TWO-STEP PROCEDURE" AS "NOT ONLY
ENTIRELY APPROPRIATE BUT IN THE BEST TRADITION OF EFFECTIVE
ADMINISTRATIVE PRACTICE"; UNITED STATES V. PIERCE AUTO LINES, 327 U.S.
515, 534-536; BALTIMORE & O.R. CO. V. UNITED STATES, 386 U.S. 372, 459
(DISSENTING OPINION); CF. FAHEY V. MALLONEE, 332 U.S. 245; OPP COTTON
MILLS V. ADMINISTRATOR, 312 U.S. 126, 152-154; UNITED STATES V.
ILLINOIS CENTRAL R. CO., 291 U.S. 457. 

THE ALLOWANCE OF SUCH FLEXIBILITY, AND THE EXERCISE OF PRUDENCE BY
THE COURTS, IS ESPECIALLY APPROPRIATE WHERE, AS HERE, THE ISSUE IS NOT
WHETHER TO HOLD A HEARING BUT WHEN TO DO SO, AND WHERE THERE HAS BEEN
NO SHOWING THAT HARM WOULD COME FROM DEFERRING CONSIDERATION OF THE
ANTITRUST ISSUES.   THIS IS NOT A CASE IN WHICH A MERGER IS ABOUT TO BE
CONSUMMATED, AND IN WHICH IT MIGHT BE FEARED THAT THE INTEGRATION OF
TWO BUSINESSES WILL BE IMPOSSIBLE TO "UNSCRAMBLE" AT SOME FUTURE TIME. 
COMPARE FTC V. DEAN FOODS CO., 384 U.S. 597.  THESE ISSUES CONCERN, AS
THE COURT'S PARADE OF SPECULATIVE EXAMPLES INDICATES, ANTE, PP. 505
506, THE IMPLICATIONS OF A POSSIBLE FUTURE CO-ORDINATION OF SOME
CARRIER SERVICES BETWEEN REA AND GREYHOUND.  BUT THESE MATTERS WILL
ONLY CRYSTALLIZE FOR PURPOSES OF LEGAL ANALYSIS WHEN IT IS ASCERTAINED
(1) WHAT TYPE OF CONTROL, IF ANY, GREYHOUND WILL HAVE OVER REA; AND (2)
WHAT TYPE OF CO-ORDINATED ACTIVITIES ARE PLANNED.  NONE OF THESE ISSUES
HAS BEEN PREJUDGED, AND PROVISIONAL RELIEF CAN BE GRANTED BY THE
COMMISSION, IF NECESSARY, SECS. 5(2), (7), (9); CF. GILBERTVILLE
TRUCKING CO. V. UNITED STATES, 371 U.S. 115, 129-131.  THE DISTRICT
COURTS LIKEWISE HAVE AUTHORITY TO GRANT INJUNCTIVE RELIEF ON
APPLICATION OF THE COMMISSION.  SEC. 5(8). 

IN THESE CIRCUMSTANCES I DO NOT BELIEVE IT WAS AN ABUSE OF DISCRETION
FOR THE ICC TO AUTHORIZE THE ISSUANCE OF STOCK, POSTPONING
CONSIDERATION OF THE CONTROL AND ANTITRUST ISSUES UNTIL THE TRANSACTION
WAS COMPLETED SOME 60 DAYS LATER.  IT IS REGRETTABLE THAT THE COURT'S
PREOCCUPATION WITH THE FUTURE ANTITRUST POSSIBILITIES OF THIS
SITUATION, FULLY ACKNOWLEDGED BY ALL BUT STILL ENTIRELY SPECULATIVE,
SHOULD HAVE LED IT TO INTERFERE, SO UNNECESSARILY, WITH THE OBVIOUSLY
SENSIBLE COURSE OF PROCEDURE ADOPTED BY THE COMMISSION. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

FN1  THE COMMISSION FOUND THAT REA HAD AGREED "TO CONSIDER SERIOUSLY
AND WORK TOWARD A LONG-TERM AGREEMENT BETWEEN APPLICANT (REA) AND
GREYHOUND TO CONSOLIDATE OPERATING FUNCTIONS AND FACILITIES, AND TO
COOPERATE IN ALL LAWFUL, FEASIBLE AND JOINTLY ADVANTAGEOUS WAYS TO
EFFECT ECONOMIES, IMPROVE SERVICE AND INCREASE PUBLIC RECEPTIVITY AND
PATRONAGE  ...  ."  A "MEMORANDUM OF UNDERSTANDING" BETWEEN AN OFFICIAL
OF EACH OF THE TWO COMPANIES CONTAINED SOME SUGGESTED METHODS FOR
ACHIEVING THESE GOALS. 

FN2  THE ICC'S ORDER DEALING WITH THE LEGITIMACY OF THIS TRANSACTION
SAID:  "  ... APPLICANT URGENTLY NEEDS THE PROCEEDS OF $10,000,000 IN
ITS PROGRAM OF ACQUIRING AND MODERNIZING TERMINALS AND EQUIPMENT IN
ORDER TO KEEP OPERATING COSTS AT A REASONABLE LEVEL; THAT IT IS
HANDICAPPED IN BORROWING TO FINANCE CAPITAL IMPROVEMENTS BECAUSE OF ITS
UNFAVORABLE DEBT-EQUITY RATIO; THAT THE PROPOSED ISSUE WILL IMPROVE ITS
RATIO AS WELL AS REDUCE TO SOME EXTENT THE AMOUNT OF FUTURE BORROWING
REQUIRED; THAT THE PRICE OF $20 PER SHARE IS FAIR AND REASONABLE; AND
THAT THE EXPENSES OF THE ISSUE ARE ESTIMATED AT $15,000  ...  ." 

FN3  THE "PUBLIC INTEREST" OF CONCERN TO CONGRESS WAS THE PROBLEM OF
WATERED STOCK.  SEE, E.G., STATEMENT OF CONGRESSMAN RAYBURN:  "  ...
IF WE WRITE INTO THE LAW OF THE LAND A STATUTE TO THE EFFECT THAT
BEFORE A RAILROAD CAN ISSUE NEW SECURITIES, BEFORE IT CAN PUT THEM ON
THE MARKET, IT MUST COME BEFORE THE PROPERLY CONSTITUTED GOVERNMENTAL
AGENCY, LAY THE FULL FACTS OF ITS FINANCIAL SITUATION BEFORE THAT BODY,
TELL THAT BODY WHAT IT INTENDS TO DO WITH THE MONEY DERIVED FROM THE
SALE OF THE ISSUE OF SECURITIES, AND AFTER IT HAS RECEIVED THE APPROVAL
OF THAT REGULATING BODY AND IT GOES OUT AND PUTS THOSE SECURITIES ON
THE MARKET, THEN THE INTERSTATE COMMERCE COMMISSION BY THIS LAW IS
EMPOWERED AT ANY TIME TO CALL IT TO ACCOUNT AND HAVE IT TELL TO THAT
REGULATING BODY THAT IT EXPENDED THE MONEY, THE PROCEEDS OF THE SALE OF
SECURITIES, FOR THE PURPOSES FOR WHICH IT HAD MADE THE APPLICATION." 
58 CONG. REC. 8376 (1919).  SEE ALSO STATEMENT OF CONGRESSMAN ESCH,
ID., AT 8317-8318.  SEE GENERALLY MACVEAGH, THE TRANSPORTATION ACT OF
1920, AT 486-492 (1923).    FN4  SECTION 20A(2) READS IN ITS ENTIRETY:
"IT SHALL BE UNLAWFUL FOR ANY CARRIER TO ISSUE ANY SHARE OF CAPITAL
STOCK OR ANY BOND OR OTHER EVIDENCE OF INTEREST IN OR INDEBTEDNESS OF
THE CARRIER (HEREINAFTER IN THIS SECTION COLLECTIVELY TERMED
'SECURITIES') OR TO ASSUME ANY OBLIGATION OR LIABILITY AS LESSOR,
LESSEE, GUARANTOR, INDORSER, SURETY, OR OTHERWISE, IN RESPECT OF THE
SECURITIES OF ANY OTHER PERSON, NATURAL OR ARTIFICIAL, EVEN THOUGH
PERMITTED BY THE AUTHORITY CREATING THE CARRIER CORPORATION, UNLESS AND
UNTIL, AND THEN ONLY TO THE EXTENT THAT, UPON APPLICATION BY THE
CARRIER, AND AFTER INVESTIGATION BY THE COMMISSION OF THE PURPOSES AND
USES OF THE PROPOSED ISSUE AND THE PROCEEDS THEREOF, OR OF THE PROPOSED
ASSUMPTION OF OBLIGATION OR LIABILITY IN RESPECT OF THE SECURITIES OF
ANY OTHER PERSON, NATURAL OR ARTIFICIAL, THE COMMISSION BY ORDER
AUTHORIZES SUCH ISSUE OR ASSUMPTION.  THE COMMISSION SHALL MAKE SUCH
ORDER ONLY IF IT FINDS THAT SUCH ISSUE OR ASSUMPTION:  (A) IS FOR SOME
LAWFUL OBJECT WITHIN ITS CORPORATE PURPOSES, AND COMPATIBLE WITH THE
PUBLIC INTEREST, WHICH IS NECESSARY OR APPROPRIATE FOR OR CONSISTENT
WITH THE PROPER PERFORMANCE BY THE CARRIER OF SERVICE TO THE PUBLIC AS
A COMMON CARRIER, AND WHICH WILL NOT IMPAIR ITS ABILITY TO PERFORM THAT
SERVICE, AND (B) IS REASONABLY NECESSARY AND APPROPRIATE FOR SUCH
PURPOSE." 

FN5  BOTH SECTIONS WERE PARTS OF THE TRANSPORTATION ACT OF 1920, 41
STAT. 480, 494. 
..END :























CAMARA V. MUNICIPAL COURT 387 U.S. 523 


NO. 92.  ARGUED FEBRUARY 15, 1967.  - DECIDED JUNE 5, 1967.  - 237 CAL.
APP. 2D 128, 46 CAL. RPTR.  585, VACATED AND REMANDED. 


APPELLANT WAS CHARGED WITH VIOLATING THE SAN FRANCISCO HOUSING CODE
FOR REFUSING, AFTER THREE EFFORTS BY CITY HOUSING INSPECTORS TO SECURE
HIS CONSENT, TO ALLOW A WARRANTLESS INSPECTION OF THE GROUND-FLOOR
QUARTERS WHICH HE LEASED AND RESIDENTIAL USE OF WHICH ALLEGEDLY
VIOLATED THE APARTMENT BUILDING'S OCCUPANCY PERMIT.  CLAIMING THE
INSPECTION ORDINANCE UNCONSTITUTIONAL FOR FAILURE TO REQUIRE A WARRANT
FOR INSPECTIONS, APPELLANT WHILE AWAITING TRIAL SUED IN A STATE
SUPERIOR COURT FOR A WRIT OF PROHIBITION, WHICH THE COURT DENIED. 
RELYING ON FRANK V. MARYLAND, 359 U.S. 360, AND SIMILAR CASES, THE
DISTRICT COURT OF APPEAL AFFIRMED, HOLDING THAT THE ORDINANCE DID NOT
VIOLATE THE FOURTH AMENDMENT.  THE STATE SUPREME COURT DENIED A
PETITION FOR HEARING.  HELD: 

1.  THE FOURTH AMENDMENT BARS PROSECUTION OF A PERSON WHO HAS REFUSED
TO PERMIT A WARRANTLESS CODE-ENFORCEMENT INSPECTION OF HIS PERSONAL
RESIDENCE.  FRANK V. MARYLAND, SUPRA, PRO TANTO OVERRULED.  PP. 528
534. 

(A)  THE BASIC PURPOSE OF THE FOURTH AMENDMENT, WHICH IS ENFORCEABLE
AGAINST THE STATES THROUGH THE FOURTEENTH, THROUGH ITS PROHIBITION OF
"UNREASONABLE" SEARCHES AND SEIZURES IS TO SAFEGUARD THE PRIVACY AND
SECURITY OF INDIVIDUALS AGAINST ARBITRARY INVASIONS BY GOVERNMENTAL
OFFICIALS.  P. 528. 

(B)  WITH CERTAIN CAREFULLY DEFINED EXCEPTIONS, AN UNCONSENTED
WARRANTLESS SEARCH OF PRIVATE PROPERTY IS "UNREASONABLE."  PP. 528
529. 

(C)  CONTRARY TO THE ASSUMPTION OF FRANK V. MARYLAND, SUPRA, FOURTH
AMENDMENT INTERESTS ARE NOT MERELY "PERIPHERAL" WHERE MUNICIPAL FIRE,
HEALTH, AND HOUSING INSPECTION PROGRAMS ARE INVOLVED WHOSE PURPOSE IS
TO DETERMINE THE EXISTENCE OF PHYSICAL CONDITIONS NOT COMPLYING WITH
LOCAL ORDINANCES.  THOSE PROGRAMS, MOREOVER, ARE ENFORCEABLE BY
CRIMINAL PROCESS, AS IS REFUSAL TO ALLOW AN INSPECTION.  PP. 529-531. 

(D)  WARRANTLESS ADMINISTRATIVE SEARCHES CANNOT BE JUSTIFIED ON THE
GROUNDS THAT THEY MAKE MINIMAL DEMANDS ON OCCUPANTS; THAT WARRANTS IN
SUCH CASES ARE UNFEASIBLE; OR THAT AREA INSPECTION PROGRAMS COULD NOT
FUNCTION UNDER REASONABLE SEARCH-WARRANT REQUIREMENTS.  PP. 531-533. 

2.  PROBABLE CAUSE UPON THE BASIS OF WHICH WARRANTS ARE TO BE ISSUED
FOR AREA CODE-ENFORCEMENT INSPECTIONS IS NOT DEPENDENT ON THE
INSPECTOR'S BELIEF THAT A PARTICULAR DWELLING VIOLATES THE CODE BUT ON
THE REASONABLENESS OF THE ENFORCEMENT AGENCY'S APPRAISAL OF CONDITIONS
IN THE AREA AS A WHOLE.  THE STANDARDS TO GUIDE THE MAGISTRATE IN THE
ISSUANCE OF SUCH SEARCH WARRANTS WILL NECESSARILY VARY WITH THE
MUNICIPAL PROGRAM BEING ENFORCED.  PP. 534-539. 

3.  SEARCH WARRANTS WHICH ARE REQUIRED IN NONEMERGENCY SITUATIONS
SHOULD NORMALLY BE SOUGHT ONLY AFTER ENTRY IS REFUSED.  PP. 539-540. 

4.  IN THE NONEMERGENCY SITUATION HERE, APPELLANT HAD A RIGHT TO
INSIST THAT THE INSPECTORS OBTAIN A SEARCH WARRANT.  P. 540. 

CAMARA V. MUNICIPAL COURT OF THE CITY AND COUNTY OF SAN FRANCISCO. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN FRANK V. MARYLAND, 359 U.S. 360, THIS COURT UPHELD, BY A FIVE-TO
FOUR VOTE, A STATE COURT CONVICTION OF A HOME-OWNER WHO REFUSED TO
PERMIT A MUNICIPAL HEALTH INSPECTOR TO ENTER AND INSPECT HIS PREMISES
WITHOUT A SEARCH WARRANT.  IN EATON V. PRICE, 364 U.S. 263, A SIMILAR
CONVICTION WAS AFFIRMED BY AN EQUALLY DIVIDED COURT.  SINCE THOSE
CLOSELY DIVIDED DECISIONS, MORE INTENSIVE EFFORTS AT ALL LEVELS OF
GOVERNMENT TO CONTAIN AND ELIMINATE URBAN BLIGHT HAVE LED TO INCREASING
USE OF SUCH INSPECTION TECHNIQUES, WHILE NUMEROUS DECISIONS OF THIS
COURT HAVE MORE FULLY DEFINED THE FOURTH AMENDMENT'S EFFECT ON STATE
AND MUNICIPAL ACTION.  E.G., MAPP V. OHIO, 367 U.S. 643; KER V.
CALIFORNIA, 374 U.S. 23.  IN VIEW OF THE GROWING NATIONWIDE IMPORTANCE
OF THE PROBLEM, WE NOTED PROBABLE JURISDICTION IN THIS CASE AND IN SEE
V. CITY OF SEATTLE, POST, P. 541, TO RE-EXAMINE WHETHER ADMINISTRATIVE
INSPECTION PROGRAMS, AS PRESENTLY AUTHORIZED AND CONDUCTED, VIOLATE
FOURTH AMENDMENT RIGHTS AS THOSE RIGHTS ARE ENFORCED AGAINST THE STATES
THROUGH THE FOURTEENTH AMENDMENT.  385 U.S. 808. 

APPELLANT BROUGHT THIS ACTION IN A CALIFORNIA SUPERIOR COURT ALLEGING
THAT HE WAS AWAITING TRIAL ON A CRIMINAL CHARGE OF VIOLATING THE SAN
FRANCISCO HOUSING CODE BY REFUSING TO PERMIT A WARRANTLESS INSPECTION
OF HIS RESIDENCE, AND THAT A WRIT OF PROHIBITION SHOULD ISSUE TO THE
CRIMINAL COURT BECAUSE THE ORDINANCE AUTHORIZING SUCH INSPECTIONS IS
UNCONSTITUTIONAL ON ITS FACE.  THE SUPERIOR COURT DENIED THE WRIT, THE
DISTRICT COURT OF APPEAL AFFIRMED, AND THE SUPREME COURT OF CALIFORNIA
DENIED A PETITION FOR HEARING.  APPELLANT PROPERLY RAISED AND HAD
CONSIDERED BY THE CALIFORNIA COURTS THE FEDERAL CONSTITUTIONAL
QUESTIONS HE NOW PRESENTS TO THIS COURT. 

THOUGH THERE WERE NO JUDICIAL FINDINGS OF FACT IN THIS PROHIBITION
PROCEEDING, WE SHALL SET FORTH THE PARTIES' FACTUAL ALLEGATIONS.  ON
NOVEMBER 6, 1963, AN INSPECTOR OF THE DIVISION OF HOUSING INSPECTION OF
THE SAN FRANCISCO DEPARTMENT OF PUBLIC HEALTH ENTERED AN APARTMENT
BUILDING TO MADE A ROUTINE ANNUAL INSPECTION FOR POSSIBLE VIOLATIONS OF
THE CITY'S HOUSING CODE.  (FN1)  THE BUILDING'S MANAGER INFORMED THE
INSPECTOR THAT APPELLANT, LESSEE OF THE GROUND FLOOR, WAS USING THE
REAR OF HIS LEASEHOLD AS A PERSONAL RESIDENCE.  CLAIMING THAT THE
BUILDING'S OCCUPANCY PERMIT DID NOT ALLOW RESIDENTIAL USE OF THE GROUND
FLOOR, THE INSPECTOR CONFRONTED APPELLANT AND DEMANDED THAT HE PERMIT
AN INSPECTION OF THE PREMISES.  APPELLANT REFUSED TO ALLOW THE
INSPECTION BECAUSE THE INSPECTOR LACKED A SEARCH WARRANT. 

THE INSPECTOR RETURNED ON NOVEMBER 8, AGAIN WITHOUT A WARRANT, AND
APPELLANT AGAIN REFUSED TO ALLOW AN INSPECTION.  A CITATION WAS THEN
MAILED ORDERING APPELLANT TO APPEAR AT THE DISTRICT ATTORNEY'S OFFICE. 
WHEN APPELLANT FAILED TO APPEAR, TWO INSPECTORS RETURNED TO HIS
APARTMENT ON NOVEMBER 22.  THEY INFORMED APPELLANT THAT HE WAS REQUIRED
BY LAW TO PERMIT AN INSPECTION UNDER SEC. 503 OF THE HOUSING CODE:

"SEC.  503 RIGHT TO ENTER BUILDING.  AUTHORIZED EMPLOYEES OF THE CITY
DEPARTMENTS OR CITY AGENCIES, SO FAR AS MAY BE NECESSARY FOR THE
PERFORMANCE OF THEIR DUTIES, SHALL, UPON PRESENTATION OF PROPER
CREDENTIALS, HAVE THE RIGHT TO ENTER, AT REASONABLE TIMES, ANY
BUILDING, STRUCTURE, OR PREMISES IN THE CITY TO PERFORM ANY DUTY
IMPOSED UPON THEM BY THE MUNICIPAL CODE." 

APPELLANT NEVERTHELESS REFUSED THE INSPECTORS ACCESS TO HIS APARTMENT
WITHOUT A SEARCH WARRANT.  THEREAFTER, A COMPLAINT WAS FILED CHARGING
HIM WITH REFUSING TO PERMIT A LAWFUL INSPECTION IN VIOLATION OF SEC.
507 OF THE CODE.  (FN2)  APPELLANT WAS ARRESTED ON DECEMBER 2 AND
RELEASED ON BAIL.  WHEN HIS DEMURRER TO THE CRIMINAL COMPLAINT WAS
DENIED, APPELLANT FILED THIS PETITION FOR A WRIT OF PROHIBITION. 

APPELLANT HAS ARGUED THROUGHOUT THIS LITIGATION THAT SEC. 503 IS
CONTRARY TO THE FOURTH AND FOURTEENTH AMENDMENTS IN THAT IT AUTHORIZES
MUNICIPAL OFFICIALS TO ENTER A PRIVATE DWELLING WITHOUT A SEARCH
WARRANT AND WITHOUT PROBABLE CAUSE TO BELIEVE THAT A VIOLATION OF THE
HOUSING CODE EXISTS THEREIN.  CONSEQUENTLY, APPELLANT CONTENDS, HE MAY
NOT BE PROSECUTED UNDER SEC. 507 FOR REFUSING TO PERMIT AN INSPECTION
UNCONSTITUTIONALLY AUTHORIZED BY SEC. 503.  RELYING ON FRANK V.
MARYLAND, EATON V. PRICE, AND DECISIONS IN OTHER STATES, (FN3) THE
DISTRICT COURT OF APPEAL HELD THAT SEC. 503 DOES NOT VIOLATE FOURTH
AMENDMENT RIGHTS BECAUSE IT "IS PART OF A REGULATORY SCHEME WHICH IS
ESSENTIALLY CIVIL RATHER THAN CRIMINAL IN NATURE, INASMUCH AS THAT
NOT BE EXERCISED UNDER UNREASONABLE CONDITIONS."  HAVING CONCLUDED THAT
FRANK V. MARYLAND, TO THE EXTENT THAT IT SANCTIONED SUCH WARRANTLESS
INSPECTIONS, MUST BE OVERRULED, WE REVERSE. 

                                        I. 

THE FOURTH AMENDMENT PROVIDES THAT, "THE RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST
UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND NO
WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR
AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND
THE PERSONS OR THINGS TO BE SEIZED."  THE BASIC PURPOSE OF THIS
AMENDMENT, AS RECOGNIZED IN COUNTLESS DECISIONS OF THIS COURT, IS TO
SAFEGUARD THE PRIVACY AND SECURITY OF INDIVIDUALS AGAINST ARBITRARY
INVASIONS BY GOVERNMENTAL OFFICIALS.  THE FOURTH AMENDMENT THUS GIVES
CONCRETE EXPRESSION TO A RIGHT OF THE PEOPLE WHICH "IS BASIC TO A FREE
SOCIETY."  WOLF V. COLORADO, 338 U.S. 25, 27.  AS SUCH, THE FOURTH
AMENDMENT IS ENFORCEABLE AGAINST THE STATES THROUGH THE FOURTEENTH
AMENDMENT.  KER V. CALIFORNIA, 374 U.S. 23, 30. 

THOUGH THERE HAS BEEN GENERAL AGREEMENT AS TO THE FUNDAMENTAL PURPOSE
OF THE FOURTH AMENDMENT, TRANSLATION OF THE ABSTRACT PROHIBITION
AGAINST "UNREASONABLE SEARCHES AND SEIZURES" INTO WORKABLE GUIDELINES
FOR THE DECISION OF PARTICULAR CASES IS A DIFFICULT TASK WHICH HAS FOR
MANY YEARS DIVIDED THE MEMBERS OF THIS COURT.  NEVERTHELESS, ONE
GOVERNING PRINCIPLE, JUSTIFIED BY HISTORY AND BY CURRENT EXPERIENCE,
HAS CONSISTENTLY BEEN FOLLOWED:  EXCEPT IN CERTAIN CAREFULLY DEFINED
CLASSES OF CASES, A SEARCH OF PRIVATE PROPERTY WITHOUT PROPER CONSENT
IS "UNREASONABLE" UNLESS IT HAS BEEN AUTHORIZED BY A VALID SEARCH
WARRANT.  SEE, E.G., STONER V. CALIFORNIA, 376 U.S. 483; UNITED STATES
V. JEFFERS, 342 U.S. 48; MCDONALD V. UNITED STATES, 335 U.S. 451;
AGNELLO V. UNITED STATES, 269 U.S. 20.  AS THE COURT EXPLAINED IN
JOHNSON V. UNITED STATES, 333 U.S. 10, 14:

"THE RIGHT OF OFFICERS TO THRUST THEMSELVES INTO A HOME IS ALSO A
GRAVE CONCERN, NOT ONLY TO THE INDIVIDUAL BUT TO A SOCIETY WHICH
CHOOSES TO DWELL IN REASONABLE SECURITY AND FREEDOM FROM SURVEILLANCE. 
WHEN THE RIGHT OF PRIVACY MUST REASONABLY YIELD TO THE RIGHT OF SEARCH
IS, AS A RULE, TO BE DECIDED BY A JUDICIAL OFFICER, NOT BY A POLICEMAN
OR GOVERNMENT ENFORCEMENT AGENT." 

IN FRANK V. MARYLAND, THIS COURT UPHELD THE CONVICTION OF ONE WHO
REFUSED TO PERMIT A WARRANTLESS INSPECTION OF PRIVATE PREMISES FOR THE
PURPOSES OF LOCATING AND ABATING A SUSPECTED PUBLIC NUISANCE. 
ALTHOUGH FRANK CAN ARGUABLY BE DISTINGUISHED FROM THIS CASE ON ITS
FACTS, (FN4) THE FRANK OPINION HAS GENERALLY BEEN INTERPRETED AS
CARVING OUT AN ADDITIONAL EXCEPTION TO THE RULE THAT WARRANTLESS
SEARCHES ARE UNREASONABLE UNDER THE FOURTH AMENDMENT.   SEE EATON V.
PRICE, SUPRA.  THE DISTRICT COURT OF APPEAL SO INTERPRETED FRANK IN
THIS CASE, AND THAT RULING IS THE CORE OF APPELLANT'S CHALLENGE HERE. 
WE PROCEED TO A RE-EXAMINATION OF THE FACTORS WHICH PERSUADED THE FRANK
MAJORITY TO ADOPT THIS CONSTRUCTION OF THE FOURTH AMENDMENT'S
PROHIBITION AGAINST UNREASONABLE SEARCHES. 

TO THE FRANK MAJORITY, MUNICIPAL FIRE, HEALTH, AND HOUSING INSPECTION
PROGRAMS "TOUCH AT MOST UPON THE PERIPHERY OF THE IMPORTANT INTERESTS
SAFEGUARDED BY THE FOURTEENTH AMENDMENT'S PROTECTION AGAINST OFFICIAL
INTRUSION," 359 U.S., AT 367, BECAUSE THE INSPECTIONS ARE MERELY TO
DETERMINE WHETHER PHYSICAL CONDITIONS EXIST WHICH DO NOT COMPLY WITH
MINIMUM STANDARDS PRESCRIBED IN LOCAL REGULATORY ORDINANCES.  SINCE THE
INSPECTOR DOES NOT ASK THAT THE PROPERTY OWNER OPEN HIS DOORS TO A
SEARCH FOR "EVIDENCE OF CRIMINAL ACTION" WHICH MAY BE USED TO SECURE
THE OWNER'S CRIMINAL CONVICTION, HISTORIC INTERESTS OF "SELF
PROTECTION" JOINTLY PROTECTED BY THE FOURTH AND FIFTH AMENDMENTS (FN5)
ARE SAID NOT TO BE INVOLVED, BUT ONLY THE LESS INTENSE "RIGHT TO BE
SECURE FROM INTRUSION INTO PERSONAL PRIVACY."  ID., AT 365. 

WE MAY AGREE THAT A ROUTINE INSPECTION OF THE PHYSICAL CONDITION OF
PRIVATE PROPERTY IS A LESS HOSTILE INTRUSION THAN THE TYPICAL
POLICEMAN'S SEARCH FOR THE FRUITS AND INSTRUMENTALITIES OF CRIME.   FOR
THIS REASON ALONE, FRANK DIFFERED FROM THE GREAT BULK OF FOURTH
AMENDMENT CASES WHICH HAVE BEEN CONSIDERED BY THIS COURT.  BUT WE
CANNOT AGREE THAT THE FOURTH AMENDMENT INTERESTS AT STAKE IN THESE
INSPECTION CASES ARE MERELY "PERIPHERAL."  IT IS SURELY ANOMALOUS TO
SAY THAT THE INDIVIDUAL AND HIS PRIVATE PROPERTY ARE FULLY PROTECTED BY
THE FOURTH AMENDMENT ONLY WHEN THE INDIVIDUAL IS SUSPECTED OF CRIMINAL
BEHAVIOR.  (FN6)  FOR INSTANCE, EVEN THE MOST LAW-ABIDING CITIZEN HAS A
VERY TANGIBLE INTEREST IN LIMITING THE CIRCUMSTANCES UNDER WHICH THE
SANCTITY OF HIS HOME MAY BE BROKEN BY OFFICIAL AUTHORITY, FOR THE
POSSIBILITY OF CRIMINAL ENTRY UNDER THE GUISE OF OFFICIAL SANCTION IS A
SERIOUS THREAT TO PERSONAL AND FAMILY SECURITY.  AND EVEN ACCEPTING
FRANK'S RATHER REMARKABLE PREMISE, INSPECTIONS OF THE KIND WE ARE HERE
CONSIDERING DO IN FACT JEOPARDIZE "SELF-PROTECTION" INTERESTS OF THE
PROPERTY OWNER.  LIKE MOST REGULATORY LAWS, FIRE, HEALTH, AND HOUSING
CODES ARE ENFORCED BY CRIMINAL PROCESSES.  IN SOME CITIES, DISCOVERY OF
A VIOLATION BY THE INSPECTOR LEADS TO CRIMINAL COMPLAINT.  (FN7)  EVEN
IN CITIES WHERE DISCOVERY OF A VIOLATION PRODUCES ONLY AN
ADMINISTRATIVE COMPLIANCE ORDER, (FN8) REFUSAL TO COMPLY IS A CRIMINAL
OFFENSE, AND THE FACT OF COMPLIANCE IS VERIFIED BY A SECOND INSPECTION,
AGAIN WITHOUT A WARRANT.  (FN9)  FINALLY, AS THIS CASE DEMONSTRATES,
REFUSAL TO PERMIT AN INSPECTION IS ITSELF A CRIME, PUNISHABLE BY FINE
OR EVEN BY JAIL SENTENCE. 

THE FRANK MAJORITY SUGGESTED, AND APPELLEE REASSERTS, TWO OTHER
JUSTIFICATIONS FOR PERMITTING ADMINISTRATIVE HEALTH AND SAFETY
INSPECTIONS WITHOUT A WARRANT.  FIRST, IT IS ARGUED THAT THESE
INSPECTIONS ARE "DESIGNED TO MAKE THE LEAST POSSIBLE DEMAND ON THE
INDIVIDUAL OCCUPANT."  359 U.S., AT 367.  THE ORDINANCES AUTHORIZING
INSPECTIONS ARE HEDGED WITH SAFEGUARDS, AND AT ANY RATE THE INSPECTOR'S
PARTICULAR DECISION TO ENTER MUST COMPLY WITH THE CONSTITUTIONAL
STANDARD OF REASONABLENESS EVEN IF HE MAY ENTER WITHOUT A WARRANT. 
(FN10)  IN ADDITION, THE ARGUMENT PROCEEDS, THE WARRANT PROCESS COULD
NOT FUNCTION EFFECTIVELY IN THIS FIELD.  THE DECISION TO INSPECT AN
ENTIRE MUNICIPAL AREA IS BASED UPON LEGISLATIVE OR ADMINISTRATIVE
ASSESSMENT OF BROAD FACTORS SUCH AS THE AREA'S AGE AND CONDITION. 
UNLESS THE MAGISTRATE IS TO REVIEW SUCH POLICY MATTERS, HE MUST ISSUE A
"RUBBER STAMP" WARRANT WHICH PROVIDES NO PROTECTION AT ALL TO THE
PROPERTY OWNER. 

IN OUR OPINION, THESE ARGUMENTS UNDULY DISCOUNT THE PURPOSES BEHIND
THE WARRANT MACHINERY CONTEMPLATED BY THE FOURTH AMENDMENT.  UNDER THE
PRESENT SYSTEM, WHEN THE INSPECTOR DEMANDS ENTRY, THE OCCUPANT HAS NO
WAY OF KNOWING WHETHER ENFORCEMENT OF THE MUNICIPAL CODE INVOLVED
REQUIRES INSPECTION OF HIS PREMISES, NO WAY OF KNOWING THE LAWFUL
LIMITS OF THE INSPECTOR'S POWER TO SEARCH, AND NO WAY OF KNOWING
WHETHER THE INSPECTOR HIMSELF IS ACTING UNDER PROPER AUTHORIZATION. 
THESE ARE QUESTIONS WHICH MAY BE REVIEWED BY A NEUTRAL MAGISTRATE
WITHOUT ANY REASSESSMENT OF THE BASIC AGENCY DECISION TO CANVASS AN
AREA.  YET, ONLY BY REFUSING ENTRY AND RISKING A CRIMINAL CONVICTION
CAN THE OCCUPANT AT PRESENT CHALLENGE THE INSPECTOR'S DECISION TO
SEARCH.  AND EVEN IF THE OCCUPANT POSSESSES SUFFICIENT FORTITUDE TO
TAKE THIS RISK, AS APPELLANT DID HERE, HE MAY NEVER LEARN ANY MORE
ABOUT THE REASON FOR THE INSPECTION THAN THAT THE LAW GENERALLY ALLOWS
HOUSING INSPECTORS TO GAIN ENTRY.  THE PRACTICAL EFFECT OF THIS SYSTEM
IS TO LEAVE THE OCCUPANT SUBJECT TO THE DISCRETION OF THE OFFICIAL IN
THE FIELD.  THIS IS PRECISELY THE DISCRETION TO INVADE PRIVATE PROPERTY
WHICH WE HAVE CONSISTENTLY CIRCUMSCRIBED BY A REQUIREMENT THAT A
DISINTERESTED PARTY WARRANT THE NEED TO SEARCH.  SEE CASES CITED, P.
529, SUPRA.  WE SIMPLY CANNOT SAY THAT THE PROTECTIONS PROVIDED BY THE
WARRANT PROCEDURE ARE NOT NEEDED IN THIS CONTEXT; BROAD STATUTORY
SAFEGUARDS ARE NO SUBSTITUTE FOR INDIVIDUALIZED REVIEW, PARTICULARLY
WHEN THOSE SAFEGUARDS MAY ONLY BE INVOKED AT THE RISK OF A CRIMINAL
PENALTY. 

THE FINAL JUSTIFICATION SUGGESTED FOR WARRANTLESS ADMINISTRATIVE
SEARCHES IS THAT THE PUBLIC INTEREST DEMANDS SUCH A RULE:  IT IS
VIGOROUSLY ARGUED THAT THE HEALTH AND SAFETY OF ENTIRE URBAN
POPULATIONS IS DEPENDENT UPON ENFORCEMENT OF MINIMUM FIRE, HOUSING, AND
SANITATION STANDARDS, AND THAT THE ONLY EFFECTIVE MEANS OF ENFORCING
SUCH CODES IS BY ROUTINE SYSTEMATIZED INSPECTION OF ALL PHYSICAL
STRUCTURES.  OF COURSE, IN APPLYING ANY REASONABLENESS STANDARD,
INCLUDING ONE OF CONSTITUTIONAL DIMENSION, AN ARGUMENT THAT THE PUBLIC
INTEREST DEMANDS A PARTICULAR RULE MUST RECEIVE CAREFUL CONSIDERATION. 
BUT WE THINK THIS ARGUMENT MISSES THE MARK.  THE QUESTION IS NOT, AT
THIS STAGE AT LEAST, WHETHER THESE INSPECTIONS MAY BE MADE, BUT WHETHER
THEY MAY BE MADE WITHOUT A WARRANT.  FOR EXAMPLE, TO SAY THAT GAMBLING
RAIDS MAY NOT BE MADE AT THE DISCRETION OF THE POLICE WITHOUT A WARRANT
IS NOT NECESSARILY TO SAY THAT GAMBLING RAIDS MAY NEVER BE MADE.  IN
ASSESSING WHETHER THE PUBLIC INTEREST DEMANDS CREATION OF A GENERAL
EXCEPTION TO THE FOURTH AMENDMENT'S WARRANT REQUIREMENT, THE QUESTION
IS NOT WHETHER THE PUBLIC INTEREST JUSTIFIES THE TYPE OF SEARCH IN
QUESTION, BUT WHETHER THE AUTHORITY TO SEARCH SHOULD BE EVIDENCED BY A
WARRANT, WHICH IN TURN DEPENDS IN PART UPON WHETHER THE BURDEN OF
OBTAINING A WARRANT IS LIKELY TO FRUSTRATE THE GOVERNMENTAL PURPOSE
BEHIND THE SEARCH.  SEE SCHMERBER V. CALIFORNIA, 384 U.S. 757, 770
771.  IT HAS NOWHERE BEEN URGED THAT FIRE, HEALTH, AND HOUSING CODE
INSPECTION PROGRAMS COULD NOT ACHIEVE THEIR GOALS WITHIN THE CONFINES
OF A REASONABLE SEARCH WARRANT REQUIREMENT.  THUS, WE DO NOT FIND THE
PUBLIC NEED ARGUMENT DISPOSITIVE. 

IN SUMMARY, WE HOLD THAT ADMINISTRATIVE SEARCHES OF THE KIND AT ISSUE
HERE ARE SIGNIFICANT INTRUSIONS UPON THE INTERESTS PROTECTED BY THE
FOURTH AMENDMENT, THAT SUCH SEARCHES WHEN AUTHORIZED AND CONDUCTED
WITHOUT A WARRANT PROCEDURE LACK THE TRADITIONAL SAFEGUARDS WHICH THE
FOURTH AMENDMENT GUARANTEES TO THE INDIVIDUAL, AND THAT THE REASONS PUT
FORTH IN FRANK V. MARYLAND AND IN OTHER CASES FOR UPHOLDING THESE
WARRANTLESS SEARCHES ARE INSUFFICIENT TO JUSTIFY SO SUBSTANTIAL A
WEAKENING OF THE FOURTH AMENDMENT'S PROTECTIONS.  BECAUSE OF THE NATURE
OF THE MUNICIPAL PROGRAMS UNDER CONSIDERATION, HOWEVER, THESE
CONCLUSIONS MUST BE THE BEGINNING, NOT THE END, OF OUR INQUIRY.  THE
FRANK MAJORITY GAVE RECOGNITION TO THE UNIQUE CHARACTER OF THESE
INSPECTION PROGRAMS BY REFUSING TO REQUIRE SEARCH WARRANTS; TO REJECT
THAT DISPOSITION DOES NOT JUSTIFY IGNORING THE QUESTION WHETHER SOME
OTHER ACCOMMODATION BETWEEN PUBLIC NEED AND INDIVIDUAL RIGHTS IS
ESSENTIAL. 

       II. 

THE FOURTH AMENDMENT PROVIDES THAT, "NO WARRANTS SHALL ISSUE, BUT
UPON PROBABLE CAUSE."  BORROWING FROM MORE TYPICAL FOURTH AMENDMENT
CASES, APPELLANT ARGUES NOT ONLY THAT CODE ENFORCEMENT INSPECTION
PROGRAMS MUST BE CIRCUMSCRIBED BY A WARRANT PROCEDURE, BUT ALSO THAT
WARRANTS SHOULD ISSUE ONLY WHEN THE INSPECTOR POSSESSES PROBABLE CAUSE
TO BELIEVE THAT A PARTICULAR DWELLING CONTAINS VIOLATIONS OF THE
MINIMUM STANDARDS PRESCRIBED BY THE CODE BEING ENFORCED.  WE DISAGREE. 

IN CASES IN WHICH THE FOURTH AMENDMENT REQUIRES THAT A WARRANT TO
SEARCH BE OBTAINED, "PROBABLE CAUSE" IS THE STANDARD BY WHICH A
PARTICULAR DECISION TO SEARCH IS TESTED AGAINST THE CONSTITUTIONAL
MANDATE OF REASONABLENESS.  TO APPLY THIS STANDARD, IT IS OBVIOUSLY
NECESSARY FIRST TO FOCUS UPON THE GOVERNMENTAL INTEREST WHICH ALLEGEDLY
JUSTIFIES OFFICIAL INTRUSION UPON THE CONSTITUTIONALLY PROTECTED
INTERESTS OF THE PRIVATE CITIZEN.  FOR EXAMPLE, IN A CRIMINAL
INVESTIGATION, THE POLICE MAY UNDERTAKE TO RECOVER SPECIFIC STOLEN OR
CONTRABAND GOODS.  BUT THAT PUBLIC INTEREST WOULD HARDLY JUSTIFY A
SWEEPING SEARCH OF AN ENTIRE CITY CONDUCTED IN THE HOPE THAT THESE
GOODS MIGHT BE FOUND.  CONSEQUENTLY, A SEARCH FOR THESE GOODS, EVEN
WITH A WARRANT, IS "REASONABLE" ONLY WHEN THERE IS "PROBABLE CAUSE" TO
BELIEVE THAT THEY WILL BE UNCOVERED IN A PARTICULAR DWELLING. 

UNLIKE THE SEARCH PURSUANT TO A CRIMINAL INVESTIGATION, THE
INSPECTION PROGRAMS AT ISSUE HERE ARE AIMED AT SECURING CITY-WIDE
COMPLIANCE WITH MINIMUM PHYSICAL STANDARDS FOR PRIVATE PROPERTY.  THE
PRIMARY GOVERNMENTAL INTEREST AT STAKE IS TO PREVENT EVEN THE
UNINTENTIONAL DEVELOPMENT OF CONDITIONS WHICH ARE HAZARDOUS TO PUBLIC
HEALTH AND SAFETY.  BECAUSE FIRES AND EPIDEMICS MAY RAVAGE LARGE URBAN
AREAS, BECAUSE UNSIGHTLY CONDITIONS ADVERSELY AFFECT THE ECONOMIC
VALUES OF NEIGHBORING STRUCTURES, NUMEROUS COURTS HAVE UPHELD THE
POLICE POWER OF MUNICIPALITIES TO IMPOSE AND ENFORCE SUCH MINIMUM
STANDARDS EVEN UPON EXISTING STRUCTURES.  (FN11)  IN DETERMINING
WHETHER A PARTICULAR INSPECTION IS REASONABLE - AND THUS IN DETERMINING
WHETHER THERE IS PROBABLE CAUSE TO ISSUE A WARRANT FOR THAT INSPECTION
THE NEED FOR THE INSPECTION MUST BE WEIGHED IN TERMS OF THESE
REASONABLE GOALS OF CODE ENFORCEMENT. 

THERE IS UNANIMOUS AGREEMENT AMONG THOSE MOST FAMILIAR WITH THIS
FIELD THAT THE ONLY EFFECTIVE WAY TO SEEK UNIVERSAL COMPLIANCE WITH THE
MINIMUM STANDARDS REQUIRED BY MUNICIPAL CODES IS THROUGH ROUTINE
PERIODIC INSPECTIONS OF ALL STRUCTURES.  (FN12)  IT IS HERE THAT THE
PROBABLE CAUSE DEBATE IS FOCUSED, FOR THE AGENCY'S DECISION TO CONDUCT
AN AREA INSPECTION IS UNAVOIDABLY BASED ON ITS APPRAISAL OF CONDITIONS
IN THE AREA AS A WHOLE, NOT ON ITS KNOWLEDGE OF CONDITIONS IN EACH
PARTICULAR BUILDING.  APPELLEE CONTENDS THAT, IF THE PROBABLE CAUSE
STANDARD URGED BY APPELLANT IS ADOPTED, THE AREA INSPECTION WILL BE
ELIMINATED AS A MEANS OF SEEKING COMPLIANCE WITH CODE STANDARDS AND THE
REASONABLE GOALS OF CODE ENFORCEMENT WILL BE DEALT A CRUSHING BLOW. 
IN MEETING THIS CONTENTION, APPELLANT ARGUES FIRST, THAT HIS PROBABLE
CAUSE STANDARD WOULD NOT JEOPARDIZE AREA INSPECTION PROGRAMS BECAUSE
ONLY A MINUTE PORTION OF THE POPULATION WILL REFUSE TO CONSENT TO SUCH
INSPECTIONS, AND SECOND, THAT INDIVIDUAL PRIVACY IN ANY EVENT SHOULD BE
GIVEN PREFERENCE TO THE PUBLIC INTEREST IN CONDUCTING SUCH
INSPECTIONS.  THE FIRST ARGUMENT, EVEN IF TRUE, IS IRRELEVANT TO THE
QUESTION WHETHER THE AREA INSPECTION IS REASONABLE WITHIN THE MEANING
OF THE FOURTH AMENDMENT.  THE SECOND ARGUMENT IS IN EFFECT AN ASSERTION
THAT THE AREA INSPECTION IS AN UNREASONABLE SEARCH.  UNFORTUNATELY,
THERE CAN BE NO READY TEST FOR DETERMINING REASONABLENESS OTHER THAN BY
BALANCING THE NEED TO SEARCH AGAINST THE INVASION WHICH THE SEARCH
ENTAILS.  BUT WE THINK THAT A NUMBER OF PERSUASIVE FACTORS COMBINE TO
SUPPORT THE REASONABLENESS OF AREA CODE-ENFORCEMENT INSPECTIONS. 
FIRST, SUCH PROGRAMS HAVE A LONG HISTORY OF JUDICIAL AND PUBLIC
ACCEPTANCE.  SEE FRANK V. MARYLAND, 359 U.S. AT 367-371.  SECOND, THE
PUBLIC INTEREST DEMANDS THAT ALL DANGEROUS CONDITIONS BE PREVENTED OR
ABATED, YET IT IS DOUBTFUL THAT ANY OTHER CANVASSING TECHNIQUE WOULD
ACHIEVE ACCEPTABLE RESULTS.  MANY SUCH CONDITIONS - FAULTY WIRING IS AN
OBVIOUS EXAMPLE - ARE NOT OBSERVABLE FROM OUTSIDE THE BUILDING AND
INDEED MAY NOT BE APPARENT TO THE INEXPERT OCCUPANT HIMSELF.  FINALLY,
BECAUSE THE INSPECTIONS ARE NEITHER PERSONAL IN NATURE NOR AIMED AT THE
DISCOVERY OF EVIDENCE OF CRIME, THEY INVOLVE A RELATIVELY LIMITED
INVASION OF THE URBAN CITIZEN'S PRIVACY.  BOTH THE MAJORITY AND THE
DISSENT IN FRANK EMPHATICALLY SUPPORTED THIS CONCLUSION: 

"TIME AND EXPERIENCE HAVE FORCEFULLY TAUGHT THAT THE POWER TO INSPECT
DWELLING PLACES, EITHER AS A MATTER OF SYSTEMATIC AREA-BY-AREA SEARCH
OR, AS HERE, TO TREAT A SPECIFIC PROBLEM, IS OF INDISPENSABLE
IMPORTANCE TO THE MAINTENANCE OF COMMUNITY HEALTH; A POWER THAT WOULD
BE GREATLY HOBBLED BY THE BLANKET REQUIREMENT OF THE SAFEGUARDS
NECESSARY FOR A SEARCH OF EVIDENCE OF CRIMINAL ACTS.  THE NEED FOR
PREVENTIVE ACTION IS GREAT, AND CITY AFTER CITY HAS SEEN THIS NEED AND
GRANTED THE POWER OF INSPECTION TO ITS HEALTH OFFICIALS; AND THESE
INSPECTIONS ARE APPARENTLY WELCOMED BY ALL BUT AN INSIGNIFICANT FEW. 
CERTAINLY, THE NATURE OF OUR SOCIETY HAS NOT VITIATED THE NEED FOR
INSPECTIONS FIRST THOUGHT NECESSARY 158 YEARS AGO, NOR HAS EXPERIENCE
REVEALED ANY ABUSE OR INROAD ON FREEDOM IN MEETING THIS NEED BY MEANS
THAT HISTORY AND DOMINANT PUBLIC OPINION HAVE SANCTIONED."  359 U.S.,
AT 372. 

"  ...  THIS IS NOT TO SUGGEST THAT A HEALTH OFFICIAL NEED SHOW THE
SAME KIND OF PROOF TO A MAGISTRATE TO OBTAIN A WARRANT AS ONE MUST WHO
WOULD SEARCH FOR THE FRUITS OR INSTRUMENTALITIES OF CRIME.  WHERE
CONSIDERATIONS OF HEALTH AND SAFETY ARE INVOLVED, THE FACTS THAT WOULD
JUSTIFY AN INFERENCE OF 'PROBABLE CAUSE' TO MAKE AN INSPECTION ARE
CLEARLY DIFFERENT FROM THOSE THAT WOULD JUSTIFY SUCH AN INFERENCE WHERE
A CRIMINAL INVESTIGATION HAS BEEN UNDERTAKEN.  EXPERIENCE MAY SHOW THE
NEED FOR PERIODIC INSPECTIONS OF CERTAIN FACILITIES WITHOUT A FURTHER
SHOWING OF CAUSE TO BELIEVE THAT SUBSTANDARD CONDITIONS DANGEROUS TO
THE PUBLIC ARE BEING MAINTAINED.  THE PASSAGE OF A CERTAIN PERIOD
WITHOUT INSPECTION MIGHT OF ITSELF BE SUFFICIENT IN A GIVEN SITUATION
TO JUSTIFY THE ISSUANCE OF A WARRANT.  THE TEST OF 'PROBABLE CAUSE'
REQUIRED BY THE FOURTH AMENDMENT CAN TAKE INTO ACCOUNT THE NATURE OF
THE SEARCH THAT IS BEING SOUGHT."  359 U.S., AT 383 (MR. JUSTICE
DOUGLAS, DISSENTING). 

HAVING CONCLUDED THAT THE AREA INSPECTION IS A "REASONABLE" SEARCH OF
PRIVATE PROPERTY WITHIN THE MEANING OF THE FOURTH AMENDMENT, IT IS
OBVIOUS THAT "PROBABLE CAUSE" TO ISSUE A WARRANT TO INSPECT MUST EXIST
IF REASONABLE LEGISLATIVE OR ADMINISTRATIVE STANDARDS FOR CONDUCTING AN
AREA INSPECTION ARE SATISFIED WITH RESPECT TO A PARTICULAR DWELLING. 
SUCH STANDARDS, WHICH WILL VARY WITH THE MUNICIPAL PROGRAM BEING
ENFORCED, MAY BE BASED UPON THE PASSAGE OF TIME, THE NATURE OF THE
BUILDING (E.G., A MULTI-FAMILY APARTMENT HOUSE), OR THE CONDITION OF
THE ENTIRE AREA, BUT THEY WILL NOT NECESSARILY DEPEND UPON SPECIFIC
KNOWLEDGE OF THE CONDITION OF THE PARTICULAR DWELLING.  IT HAS BEEN
SUGGESTED THAT SO TO VARY THE PROBABLE CAUSE TEST FROM THE STANDARD
APPLIED IN CRIMINAL CASES WOULD BE TO AUTHORIZE A "SYNTHETIC SEARCH
WARRANT" AND THEREBY TO LESSEN THE OVERALL PROTECTIONS OF THE FOURTH
AMENDMENT.  FRANK V. MARYLAND, 359 U.S., AT 373.  BUT WE DO NOT AGREE. 
THE WARRANT PROCEDURE IS DESIGNED TO GUARANTEE THAT A DECISION TO
SEARCH PRIVATE PROPERTY IS JUSTIFIED BY A REASONABLE GOVERNMENTAL
INTEREST.  BUT REASONABLENESS IS STILL THE ULTIMATE STANDARD.  IF A
VALID PUBLIC INTEREST JUSTIFIES THE INTRUSION CONTEMPLATED, THEN THERE
IS PROBABLE CAUSE TO ISSUE A SUITABLY RESTRICTED SEARCH WARRANT.  CF.
OKLAHOMA PRESS PUB. CO. V. WALLING, 327 U.S. 186.  SUCH AN APPROACH
NEITHER ENDANGERS TIME-HONORED DOCTRINES APPLICABLE TO CRIMINAL
INVESTIGATIONS NOR MAKES A NULLITY OF THE PROBABLE CAUSE REQUIREMENT IN
THIS AREA.  IT MERELY GIVES FULL RECOGNITION TO THE COMPETING PUBLIC
AND PRIVATE INTERESTS HERE AT STAKE AND, IN SO DOING, BEST FULFILLS THE
HISTORIC PURPOSE BEHIND THE CONSTITUTIONAL RIGHT TO BE FREE FROM
UNREASONABLE GOVERNMENT INVASIONS OF PRIVACY.  SEE EATON V. PIRCE, 364
U.S., AT 273-274 (OPINION OF MR. JUSTICE BRENNAN). 

         III. 

SINCE OUR HOLDING EMPHASIZES THE CONTROLLING STANDARD OF
REASONABLENESS, NOTHING WE SAY TODAY IS INTENDED TO FORECLOSE PROMPT
INSPECTIONS, EVEN WITHOUT A WARRANT, THAT THE LAW HAS TRADITIONALLY
UPHELD IN EMERGENCY SITUATIONS.  SEE NORTH AMERICAN COLD STORAGE CO. V.
CITY OF CHICAGO, 211 U.S. 306 (SEIZURE OF UNWHOLESOME FOOD); JACOBSON V
MASSACHUSETTS, 197 U.S. 11 (COMPULSORY SMALLPOX VACCINATION); COMPAGNIE
FRANCAISE V. BOARD OF HEALTH, 186 U.S. 380 (HEALTH QUARANTINE); KROPLIN
V. TRUAX, 119 OHIO ST. 610, 165 N.E. 498 (SUMMARY DESTRUCTION OF
TUBERCULAR CATTLE).  ON THE OTHER HAND, IN THE CASE OF MOST ROUTINE
AREA INSPECTIONS, THERE IS NO COMPELLING URGENCY TO INSPECT AT A
PARTICULAR TIME OR ON A PARTICULAR DAY.  MOREOVER, MOST CITIZENS ALLOW
INSPECTIONS OF THEIR PROPERTY WITHOUT A WARRANT.  THUS, AS A PRACTICAL
MATTER AND IN LIGHT OF THE FOURTH AMENDMENT'S REQUIREMENT THAT A
WARRANT SPECIFY THE PROPERTY TO BE SEARCHED, IT SEEMS LIKELY THAT
WARRANTS SHOULD NORMALLY BE SOUGHT ONLY AFTER ENTRY IS REFUSED UNLESS
THERE HAS BEEN A CITIZEN COMPLAINT OR THERE IS OTHER SATISFACTORY
REASON FOR SECURING IMMEDIATE ENTRY.  SIMILARLY, THE REQUIREMENT OF A
WARRANT PROCEDURE DOES NOT SUGGEST ANY CHANGE IN WHAT SEEMS TO BE THE
PREVAILING LOCAL POLICY, IN MOST SITUATIONS, OF AUTHORIZING ENTRY, BUT
NOT ENTRY BY FORCE, TO INSPECT. 

         IV. 

IN THIS CASE, APPELLANT HAS BEEN CHARGED WITH A CRIME FOR HIS REFUSAL
TO PERMIT HOUSING INS]ECTORS TO ENTER HIS LEASEHOLD WITHOUT A WARRANT. 
THERE WAS NO EMERGENCY DEMANDING IMMEDIATE ACCESS; IN FACT, THE
INSPECTORS MADE THREE TRIPS TO THE BUILDING IN AN ATTEMPT TO OBTAIN
APPELLANT'S CONSENT TO SEARCH.  YET NO WARRANT WAS OBTAINED AND THUS
APPELLANT WAS UNABLE TO VERIFY EITHER THE NEED FOR OR THE APPROPRIATE
LIMITS OF THE INSPECTION.  NO DOUBT, THE INSPECTORS ENTERED THE PUBLIC
PORTION OF THE BUILDING WITH THE CONSENT OF THE LANDLORD, THROUGH THE
BUILDING'S MANAGER, BUT APPELLEE DOES NOT CONTEND THAT SUCH CONSENT WAS
SUFFICIENT TO AUTHORIZE INSPECTION OF APPELLANT'S PREMISES.  CF. STONER
V. CALIFORNIA, 376 U.S. 483; CHAPMAN V. UNITED STATES, 365 U.S. 610;
MCDONALD V. UNITED STATES, 335 U.S. 451.  ASSUMING THE FACTS TO BE AS
THE PARTIES HAVE ALLEGED, WE THEREFORE CONCLUDE THAT APPELLANT HAD A
CONSTITUTIONAL RIGHT TO INSIST THAT THE INSPECTORS OBTAIN A WARRANT TO
SEARCH AND THAT APPELLANT MAY NOT CONSTITUTIONALLY BE CONVICTED FOR
REFUSING TO CONSENT TO THE INSPECTION.  IT APPEARS FROM THE OPINION OF
THE DISTRICT COURT OF APPEAL THAT UNDER THESE CIRCUMSTANCES A WRIT OF
PROHIBITION WILL ISSUE TO THE CRIMINAL COURT UNDER CALIFORNIA LAW. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE INSPECTION WAS CONDUCTED PURSUANT TO SEC. 86(3) OF THE SAN
FRANCISCO MUNICIPAL CODE, WHICH PROVIDES THAT APRATMENT HOUSE OPERATORS
SHALL PAY AN ANNUAL LICENSE FEE IN PART TO DEFRAY THE COST OF PERIODIC
INSPECTIONS OF THEIR BUILDINGS.  THE INSPECTIONS ARE TO BE MADE BY THE
BUREAU OF HOUSING INSPECTION "AT LEAST ONCE A YEAR AND AS OFTEN
THEREAFTER AS MAY BE DEEMED NECESSARY."  THE PERMIT OF OCCUPANCY, WHICH
PRESCRIBES THE APARTMENT UNITS WHICH A BUILDING MAY CONTAIN, IS NOT
ISSUED UNTIL THE LICENSE IS OBTAINED.    FN2  "SEC.  507 PENALTY FOR
VIOLATION.  ANY PERSON, THE OWNER OR HIS AUTHORIZED AGENT WHO VIOLATES,
DISOBEYS, OMITS, NEGLECTS, OR REFUSES TO COMPLY WITH, OR WHO RESISTS OR
OPPOSES THE EXECUTION OF ANY OF THE PROVISIONS OF THIS CODE, OR ANY
ORDER OF THE SUPERINTENDENT, THE DIRECTOR OF PUBLIC WORKS, OR THE
DIRECTOR OF PUBLIC HEALTH MADE PURSUANT TO THIS CODE, SHALL BE GUILTY
OF A MISDEMEANOR AND UPON CONVICTION THEREOF SHALL BE PUNISHED BY A
FINE NOT EXCEEDING FIVE HUNDRED DOLLARS ($500.00), OR BY IMPRISONMENT,
NOT EXCEEDING SIX (6) MONTHS OR BY BOTH SUCH FINE AND IMPRISONMENT,
UNLESS OTHERWISE PROVIDED IN THIS CODE, AND SHALL BE DEEMED GUILTY OF A
SEPARATE OFFENSE FOR EVERY DAY SUCH VIOLATION, DISOBEDIENCE, OMISSION,
NEGLECT OR REFUSAL SHALL CONTINUE." 

FN3  GIVNER V. STATE, 210 MD. 484, 124 A.2D 764 (1956); CITY OF ST.
LOUIS V. EVANS, 337 S.W.2D 948 (MO. 1960); STATE EX REL. EATON V.
PRICE, 168 OHIO ST. 123, 151 N.E.2D 523 (1958), AFF'D BY AN EQUALLY
DIVIDED COURT, 364 U.S. 263 (1960).  SEE ALSO STATE V. REES, 258 IOWA
813, 139 N.W.2D 406 (1966); COMMONWEALTH V. HADLEY, 351 MASS. 439, 222
N.W.2D 681 (1966), APPEAL DOCKETED JAN. 5, 1967, NO. 1179, MISC., O.T.
1966; PEOPLE V. LAVERNE, 14 N.Y.2D 304, 200 N.E.2D 441 (1964). 

FN4  IN FRANK, THE BALTIMORE ORDINANCE REQUIRED THAT THE HEALTH
INSPECTOR "HAVE CAUSE TO SUSPECT THAT A NUISANCE EXISTS IN ANY HOUSE,
CELLAR OR ENCLOSURE" BEFORE HE COULD DEMAND ENTRY WITHOUT A WARRANT, A
REQUIREMENT OBVIOUSLY MET IN FRANK BECAUSE THE INSPECTOR OBSERVED
EXTREME STRUCTURAL DECAY AND A PILE OF RODENT FECES ON THE APPELLANT'S
PREMISES.  SECTION 503 OF THE SAN FRANCISCO HOUSING CODE HAS NO SUCH
"CAUSE" REQUIREMENT, BUT NEITHER DID THE OHIO ORDINANCE AT ISSUE IN
EATON V. PRICE, A CASE WHICH FOUR JUSTICES THOUGHT WAS CONTROLLED BY
FRANK.  364 U.S., AT 264, 265, N. 2 (OPINION OF MR. JUSTICE BRENNAN). 

FN5  SEE BOYD V. UNITED STATES, 116 U.S. 616.  COMPARE SCHMERBER V.
CALIFORNIA, 384 U.S. 757, 766-772. 

FN6  SEE ABEL V. UNITED STATES, 362 U.S. 217, 254-256 (MR. JUSTICE
BRENNAN, DISSENTING); DISTRICT OF COLUMBIA V. LITTLE, 85 U.S. APP. D.C.
242, 178 F.2D 13, AFF'D, 339 U.S. 1. 

FN7  SEE NEW YORK, N.Y., ADMINISTRATIVE CODE SEC. D26-8.0 (1964). 

FN8  SEE WASHINGTON, D.C., HOUSING REGULATIONS SEC. 2104. 

FN9  THIS IS THE MORE PREVALENT ENFORCEMENT PROCEDURE.  SEE NOTE,
ENFORCEMENT OF MUNICIPAL HOUSING CODES, 78 HARV. L. REV. 801, 813-816. 

FN10  THE SAN FRANCISCO CODE REQUIRES THAT THE INSPECTOR DISPLAY
PROPER CREDENTIALS, THAT HE INSPECT "AT REASONABLE TIMES," AND THAT HE
NOT OBTAIN ENTRY BY FORCE, AT LEAST WHEN THERE IS NO EMERGENCY.  THE
BALTIMORE ORDINANCE IN FRANK REQUIRED THAT THE INSPECTOR "HAVE CAUSE TO
SUSPECT THAT A NUISANCE EXISTS."  SOME CITIES NOTIFY RESIDENTS IN
ADVANCE, BY MAIL OR POSTED NOTICE, OF IMPENDING AREA INSPECTIONS. 
STATE COURTS UPHOLDING THESE INSPECTIONS WITHOUT WARRANTS HAVE IMPOSED
A GENERAL REASONABLENESS REQUIREMENT.  SEE CASES CITED, N. 3, SUPRA. 

FN11  SEE ABBATE BROS. V. CITY OF CHICAGO, 11 ILL. 2D 337, 142 N.E.2D
691; CITY OF LOUISVILLE V. THOMPSON, 339 S.W.2D 869 (KY.); ADAMEC V.
POST, 273 N.Y. 250, 7 N.E.2D 120; PAQUETTE V. CITY OF FALL RIVER, 338
MASS. 368, 155 N.E.2D 775; RICHARDS V. CITY OF COLUMBIA, 227 S.C. 538,
88 S.E.2D 683; BODEN V. CITY OF MILWAUKEE, 8 WIS. 2D 318, 99 N.W.2D
156. 

FN12  SEE OSGOOD & ZWERNER, REHABILITATION AND CONSERVATION, 25 LAW &
CONTEMP.  PROB.  705, 718 AND N. 43; SCHWARTZ, CRUCIAL AREAS IN
ADMINISTRATIVE LAW, 34 GEO. WASH. L. REV.  401, 423 AND N. 93; COMMENT,
RENT WITHHOLDING AND THE IMPROVEMENT OF SUBSTANDARD HOUSING, 53 CALIF.
L. REV. 304, 316-317; NOTE, ENFORCEMENT OF MUNICIPAL HOUSING CODES, 78
HARV. L. REV. 801, 807, 851; NOTE, MUNICIPAL HOUSING CODES, 69 HARV. L.
REV. 1115, 1124-1125.  SECTION 311(A) OF THE HOUSING AND URBAN
DEVELOPMENT ACT OF 1965, 79 STAT.  478, 42 U.S.C. SEC. 1468 (1964 ED.,
SUPP. I), AUTHORIZES GRANTS OF FEDERAL FUNDS "TO CITIES, OTHER
MUNICIPALITIES, AND COUNTIES FOR THE PURPOSE OF ASSISTING SUCH
LOCALITIES IN CARRYING OUT PROGRAMS OF CONCENTRATED CODE ENFORCEMENT IN
DETERIORATED OR DETERIORATING AREAS IN WHICH SUCH ENFORCEMENT, TOGETHER
WITH THOSE PUBLIC IMPROVEMENTS TO BE PROVIDED BY THE LOCALITY, MAY BE
EXPECTED TO ARREST THE DECLINE OF THE AREA." 

FOR DISSENTING OPINION OF MR. JUSTICE CLARK, SEE POST, P. 546. 
..END :




















SEE V. CITY OF SEATTLE 387 U.S. 541 


NO. 180.  ARGUED FEBRUARY 15, 1967 - DECIDED JUNE 5, 1967 - 67 WASH. 2D
475, 408, P.2D 262, REVERSED. 


A SUITABLE WARRANT PROCEDURE HELD REQUIRED BY THE FOURTH AMENDMENT TO
EFFECT UNCONSENTED ADMINISTRATIVE ENTRY AND INSPECTION OF PRIVATE
COMMERCIAL PREMISES.  CF. CAMARA V. MUNICIPAL COURT, ANTE, P. 523.  PP.
542-546. 

SEE V. CITY OF SEATTLE. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

APPELLANT SEEKS REVERSAL OF HIS CONVICTION FOR REFUSING TO PERMIT A
REPRESENTATIVE OF THE CITY OF SEATTLE FIRE DEPARTMENT TO ENTER AND
INSPECT APPELLANT'S LOCKED COMMERCIAL WAREHOUSE WITHOUT A WARRANT AND
WITHOUT PROBABLE CAUSE TO BELIEVE THAT A VIOLATION OF ANY MUNICIPAL
ORDINANCE EXISTED THEREIN.  THE INSPECTION WAS CONDUCTED AS PART OF A
ROUTINE, PERIODIC CITY-WIDE CANVASS TO OBTAIN COMPLIANCE WITH SEATTLE'S
FIRE CODE.  CITY OF SEATTLE ORDINANCE NO. 87870, C. 8.01.  AFTER HE
REFUSED THE INSPECTOR ACCESS, APPELLANT WAS ARRESTED AND CHARGED WITH
VIOLATING SEC. 8.01.050 OF THE CODE: 

"INSPECTION OF BUILDING AND PREMISES.  IT SHALL BE THE DUTY OF THE
FIRE CHIEF TO INSPECT AND HE MAY ENTER ALL BUILDINGS AND PREMISES,
EXCEPT THE INTERIORS OF DWELLINGS, AS OFTEN AS MAY BE NECESSARY FOR THE
PURPOSE OF ASCERTAINING AND CAUSING TO BE CORRECTED ANY CONDITIONS
LIABLE TO CAUSE FIRE, OR ANY VIOLATIONS OF THE PROVISIONS OF THIS
TITLE, AND OF ANY OTHER ORDINANCE CONCERNING FIRE HAZARDS." 

APPELLANT WAS CONVICTED AND GIVEN A SUSPENDED FINE OF $100 (FN1)
DESPITE HIS CLAIM THAT SEC. 8.01.050, IF INTERPRETED TO AUTHORIZE THIS
WARRANTLESS INSPECTION OF HIS WAREHOUSE, WOULD VIOLATE HIS RIGHTS UNDER
THE FOURTH AND FOURTEENTH AMENDMENTS.  WE NOTED PROBABLE JURISDICTION
AND SET THIS CASE FOR ARGUMENT WITH CAMARA V. MUNICIPAL COURT, ANTE, P.
523.  385 U.S. 808.  WE FIND THE PRINCIPLES ENUNCIATED IN THE CAMARA
OPINION APPLICABLE HERE AND THEREFORE WE REVERSE. 

IN CAMARA, WE HELD THAT THE FOURTH AMENDMENT BARS PROSECUTION OF A
PERSON WHO HAS REFUSED TO PERMIT A WARRANTLESS CODE-ENFORCEMENT
INSPECTION OF HIS PERSONAL RESIDENCE.  THE ONLY QUESTION WHICH THIS
CASE PRESENTS IS WHETHER CAMARA APPLIES TO SIMILAR INSPECTIONS OF
COMMERCIAL STRUCTURES WHICH ARE NOT USED AS PRIVATE RESIDENCES.  THE
SUPREME COURT OF WASHINGTON, IN AFFIRMING APPELLANT'S CONVICTION,
SUGGESTED THAT THIS COURT "HAS APPLIED DIFFERENT STANDARDS OF
REASONABLENESS TO SEARCHES OF DWELLINGS THAN TO PLACES OF BUSINESS,"
CITING DAVIS V. UNITED STATES, 328 U.S. 582.  THE WASHINGTON COURT
HELD, AND APPELLEE HERE ARGUES, THAT SEC. 8.01.050, WHICH EXCLUDES "THE
INTERIORS OF DWELLINGS," (FN2) ESTABLISHES A REASONABLE SCHEME FOR THE
WARRANTLESS INSPECTION OF COMMERCIAL PREMISES PURSUANT TO THE SEATTLE
FIRE CODE. 

IN GO-BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344; AMOS V.
UNITED STATES, 255 U.S. 313; AND SILVERTHORNE LUMBER CO. V. UNITED
STATES, 251 U.S. 385, THIS COURT REFUSED TO UPHOLD OTHERWISE
UNREASONABLE CRIMINAL INVESTIGATIVE SEARCHES MERELY BECAUSE COMMERCIAL
RATHER THAN RESIDENTIAL PREMISES WERE THE OBJECT OF THE POLICE
INTRUSIONS.  LIKEWISE, WE SEE NO JUSTIFICATION FOR SO RELAXING FOURTH
AMENDMENT SAFEGUARDS WHERE THE OFFICIAL INSPECTION IS INTENDED TO AID
ENFORCEMENT OF LAWS PRESCRIBING MINIMUM PHYSICAL STANDARDS FOR
COMMERCIAL PREMISES.  AS WE EXPLAINED IN CAMARA, A SEARCH OF PRIVATE
HOUSES IS PRESUMPTIVELY UNREASONABLE IF CONDUCTED WITHOUT A WARRANT. 
THE BUSINESSMAN, LIKE THE OCCUPANT OF A RESIDENCE, HAS A CONSTITUTIONAL
RIGHT TO GO ABOUT HIS BUSINESS FREE FROM UNREASONABLE OFFICIAL ENTRIES
UPON HIS PRIVATE COMMERCIAL PROPERTY.  THE BUSINESSMAN, TOO, HAS THAT
RIGHT PLACED IN JEOPARDY IF THE DECISION TO ENTER AND INSPECT FOR
VIOLATION OF REGULATORY LAWS CAN BE MADE AND ENFORCED BY THE INSPECTOR
IN THE FIELD WITHOUT OFFICIAL AUTHORITY EVIDENCED BY A WARRANT. 

AS GOVERNMENTAL REGULATION OF BUSINESS ENTERPRISE HAS MUSHROOMED IN
RECENT YEARS, THE NEED FOR EFFECTIVE INVESTIGATIVE TECHNIQUES TO
ACHIEVE THE AIMS OF SUCH REGULATION HAS BEEN THE SUBJECT OF SUBSTANTIAL
COMMENT AND LEGISLATION.  (FN3)  OFFICIAL ENTRY UPON COMMERCIAL
PROPERTY IS A TECHNIQUE COMMONLY ADOPTED BY ADMINISTRATIVE AGENCIES AT
ALL LEVELS OF GOVERNMENT TO ENFORCE A VARIETY OF REGULATORY LAWS; THUS,
ENTRY MAY PERMIT INSPECTION OF THE STRUCTURE IN WHICH A BUSINESS IS
HOUSED, AS IN THIS CASE, OR INSPECTION OF BUSINESS PRODUCTS, OR A
PERUSAL OF FINANCIAL BOOKS AND RECORDS.  THIS COURT HAS NOT HAD
OCCASION TO CONSIDER THE FOURTH AMENDMENT'S RELATION TO THIS BROAD
RANGE OF INVESTIGATIONS.  (FN4)  HOWEVER, WE HAVE DEALT WITH THE FOURTH
AMENDMENT ISSUES RAISED BY ANOTHER COMMON INVESTIGATIVE TECHNIQUE, THE
ADMINISTRATIVE SUBPOENA OF CORPORATE BOOKS AND RECORDS.  WE FIND STRONG
SUPPORT IN THESE SUBPOENA CASES FOR OUR CONCLUSION THAT WARRANTS ARE A
NECESSARY AND A TOLERABLE LIMITATION ON THE RIGHT TO ENTER UPON AND
INSPECT COMMERCIAL PREMISES. 

IT IS NOW SETTLED THAT, WHEN AN ADMINISTRATIVE AGENCY SUBPOENAS
CORPORATE BOOKS OR RECORDS, THE FOURTH AMENDMENT REQUIRES THAT THE
SUBPOENA BE SUFFICIENTLY LIMITED IN SCOPE, RELEVANT IN PURPOSE, AND
SPECIFIC IN DIRECTIVE SO THAT COMPLIANCE WILL NOT BE UNREASONABLY
BURDENSOME.  (FN5)  THE AGENCY HAS THE RIGHT TO CONDUCT ALL REASONABLE
INSPECTIONS OF SUCH DOCUMENTS WHICH ARE CONTEMPLATED BY STATUTE, BUT IT
MUST DELIMIT THE CONFINES OF A SEARCH BY DESIGNATING THE NEEDED
DOCUMENTS IN A FORMAL SUBPOENA.  IN ADDITION, WHILE THE DEMAND TO
INSPECT MAY BE ISSUED BY THE AGENCY, IN THE FORM OF AN ADMINISTRATIVE
SUBPOENA, IT MAY NOT BE MADE AND ENFORCED BY THE INSPECTOR IN THE
FIELD, AND THE SUBPOENAED PARTY MAY OBTAIN JUDICIAL REVIEW OF THE
REASONABLENESS OF THE DEMAND PRIOR TO SUFFERING PENALTIES FOR REFUSING
TO COMPLY. 

IT IS THESE RATHER MINIMAL LIMITATIONS ON ADMINISTRATIVE ACTION WHICH
WE THINK ARE CONSTITUTIONALLY REQUIRED IN THE CASE OF INVESTIGATIVE
ENTRY UPON COMMERCIAL ESTABLISHMENTS.  THE AGENCY'S PARTICULAR DEMAND
FOR ACCESS WILL OF COURSE BE MEASURED, IN TERMS OF PROBABLE CAUSE TO
ISSUE A WARRANT, AGAINST A FLEXIBLE STANDARD OF REASONABLENESS THAT
TAKES INTO ACCOUNT THE PUBLIC NEED FOR EFFECTIVE ENFORCEMENT OF THE
PARTICULAR REGULATION INVOLVED.  BUT THE DECISION TO ENTER AND INSPECT
WILL NOT BE THE PRODUCT OF THE UNREVIEWED DISCRETION OF THE ENFORCEMENT
OFFICER IN THE FIELD.  (FN6)  GIVEN THE ANALOGOUS INVESTIGATIVE
FUNCTIONS PERFORMED BY THE ADMINISTRATIVE SUBPOENA AND THE DEMAND FOR
ENTRY, WE FIND UNTENABLE THE PROPOSITION THAT THE SUBPOENA, WHICH HAS
BEEN TERMED A "CONSTRUCTIVE" SEARCH, OKLAHOMA PRESS PUB. CO. V.
WALLING, 327 U.S. 186, 202, IS SUBJECT TO FOURTH AMENDMENT LIMITATIONS
WHICH DO NOT APPLY TO ACTUAL SEARCHES AND INSPECTIONS OF COMMERCIAL
PREMISES. 

WE THEREFORE CONCLUDE THAT ADMINISTRATIVE ENTRY, WITHOUT CONSENT,
UPON THE PORTIONS OF COMMERCIAL PREMISES WHICH ARE NOT OPEN TO THE
PUBLIC MAY ONLY BE COMPELLED THROUGH PROSECUTION OR PHYSICAL FORCE
WITHIN THE FRAMEWORK OF A WARRANT PROCEDURE.  (FN7)  WE DO NOT IN ANY
WAY IMPLY THAT BUSINESS PREMISES MAY NOT REASONABLY BE INSPECTED IN
MANY MORE SITUATIONS THAN PRIVATE HOMES, NOR DO WE QUESTION SUCH
ACCEPTED REGULATORY TECHNIQUES AS LICENSING PROGRAMS WHICH REQUIRE
INSPECTIONS PRIOR TO OPERATING A BUSINESS OR MARKETING A PRODUCT.  ANY
CONSTITUTIONAL CHALLENGE TO SUCH PROGRAMS CAN ONLY BE RESOLVED, AS MANY
HAVE BEEN IN THE PAST, ON A CASE-BY-CASE BASIS UNDER THE GENERAL FOURTH
AMENDMENT STANDARD OF REASONABLENESS.  WE HOLD ONLY THAT THE BASIC
COMPONENT OF A REASONABLE SEARCH UNDER THE FOURTH AMENDMENT - THAT IT
NOT BE ENFORCED WITHOUT A SUITABLE WARRANT PROCEDURE - IS APPLICABLE IN
THIS CONTEXT, AS IN OTHERS, TO BUSINESS AS WELL AS TO RESIDENTIAL
PREMISES.  THEREFORE, APPELLANT MAY NOT BE PROSECUTED FOR EXERCISING
HIS CONSTITUTIONAL RIGHT TO INSIST THAT THE FIRE INSPECTOR OBTAIN A
WARRANT AUTHORIZING ENTRY UPON APPELLANT'S LOCKED WAREHOUSE. 
REVERSED. 

FN1  CONVICTION AND SENTENCE WERE PURSUANT TO SEC. 8.01.140 OF THE
FIRE CODE: 

"PENALTY.  ANYONE VIOLATING OR FAILING TO COMPLY WITH ANY PROVISION
OF THIS TITLE OR LAWFUL ORDER OF THE FIRE CHIEF PURSUANT HERETO SHALL
UPON CONVICTION THEREOF BE PUNISHABLE BY A FINE NOT TO EXCEED THREE
HUNDRED DOLLARS ($300.00), OR IMPRISONMENT IN THE CITY JAIL FOR A
PERIOD NOT TO EXCEED NINETY (90) DAYS, OR BY BOTH SUCH FINE AND
IMPRISONMENT, AND EACH DAY OF VIOLATION SHALL CONSTITUTE A SEPARATE
OFFENSE." 

FN2  "DWELLING" IS DEFINED IN THE CODE AS "A BUILDING OCCUPIED
EXCLUSIVELY FOR RESIDENTIAL PURPOSES AND HAVING NOT MORE THAN TWO (2)
DWELLING UNITS."  SUCH DWELLINGS ARE SUBJECT TO THE SUBSTANTIVE
PROVISIONS OF THE CODE, BUT THE FIRE CHIEF'S RIGHT TO ENTER SUCH
PREMISES IS LIMITED TO TIMES "WHEN HE HAS REASONABLE CAUSE TO BELIEVE A
VIOLATION OF THE PROVISIONS OF THIS TITLE EXISTS THEREIN."  SEC.
8.01.040.  THIS PROVISION ALSO LACKS A WARRANT PROCEDURE. 

FN3  SEE ANTITRUST CIVIL PROCESS ACT OF 1962, 76 STAT. 548, 15 U.S.C.
SECS. 1311-1314; H.R. REP. NO. 708, 83D CONG., 1ST SESS.
(1953)(REPORTING THE "FACTORY INSPECTION" AMENDMENTS TO THE FEDERAL
FOOD, DRUG, AND COSMETIC ACT, 67 STAT. 476, 21 U.S.C.  SEC. 374);
DAVIS, THE ADMINISTRATIVE POWER OF INVESTIGATION, 56 YALE L.J. 111;
HANDLER, THE CONSTITUTIONALITY OF INVESTIGATIONS BY THE FEDERAL TRADE
COMMISSION, I & II, 28 COL. L. REV. 708, 905; SCHWARTZ, CRUCIAL AREAS
IN ADMINISTRATIVE LAW, 34 GEO. WASH.  L. REV. 401, 425-430; NOTE,
CONSTITUTIONAL ASPECTS OF FEDERAL TAX INVESTIGATIONS, 57 COL. L. REV.
676. 

FN4  IN UNITED STATES V. CARDIFF, 344 U.S. 174, THIS COURT HELD THAT
THE FEDERAL FOOD, DRUG, AND COSMETIC ACT DID NOT COMPEL THAT CONSENT BE
GIVEN TO WARRANTLESS INSPECTIONS OF ESTABLISHMENTS COVERED BY THE ACT. 
(AS A RESULT, THE STATUTE WAS SUBSEQUENTLY AMENDED, SEE N. 3, SUPRA.)
SEE ALSO FEDERAL TRADE COMM'N V. AMERICAN TOBACCO CO., 264 U.S. 298. 

FN5  SEE UNITED STATES V. MORTON SALT CO., 338 U.S. 632; OKLAHOMA
PRESS PUB. CO. V. WALLING, 327 U.S. 186; UNITED STATES V. BAUSCH & LOMB
OPTICAL CO., 321 U.S. 707; HALE V. HENKEL, 201 U.S. 43.  SEE GENERALLY
1 DAVIS, ADMINISTRATIVE LAW SECS.  3.05-3.06 (1958). 

FN6  WE DO NOT DECIDE WHETHER WARRANTS TO INSPECT BUSINESS PREMISES
MAY BE ISSUED ONLY AFTER ACCESS IS REFUSED; SINCE SURPRISE MAY OFTEN BE
A CRUCIAL ASPECT OF ROUTINE INSPECTIONS OF BUSINESS ESTABLISHMENTS, THE
REASONABLENESS OF WARRANTS ISSUED IN ADVANCE OF INSPECTION WILL
NECESSARILY VARY WITH THE NATURE OF THE REGULATION INVOLVED AND MAY
DIFFER FROM STANDARDS APPLICABLE TO PRIVATE HOMES. 

FN7  DAVIS V. UNITED STATES, 328 U.S. 582, RELIED UPON BY THE SUPREME
COURT OF WASHINGTON, HELD ONLY THAT GOVERNMENT OFFICIALS COULD DEMAND
ACCESS TO BUSINESS PREMISES AND, UPON OBTAINING CONSENT TO SEARCH,
COULD SEIZE GASOLINE RATION COUPONS ISSUED BY THE GOVERNMENT AND
ILLEGALLY POSSESSED BY THE PETITIONER.  DAVIS THUS INVOLVED THE
REASONABLENESS OF A PARTICULAR SEARCH OF BUSINESS PREMISES BUT DID NOT
INVOLVE A SEARCH WARRANT ISSUE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART, JOIN, DISSENTING.* 

*THIS OPINION APPLIES ALSO TO NO. 92, CAMARA V. MUNICIPAL COURT OF
THE CITY AND COUNTY OF SAN FRANCISCO, ANTE, P. 523. 

EIGHT YEARS AGO MY BROTHER FRANKFURTER WISELY WROTE IN FRANK V.
MARYLAND, 359 U.S. 360 (1959): 

"TIME AND EXPERIENCE HAVE FORCEFULLY TAUGHT THAT THE POWER TO INSPECT
DWELLING PLACES, EITHER AS A MATTER OF SYSTEMATIC AREA-BY-AREA SEARCH
OR, AS HERE, TO TREAT A SPECIFIC PROBLEM, IS OF INDISPENSABLE
IMPORTANCE TO THE MAINTENANCE OF COMMUNITY HEALTH; A POWER THAT WOULD
BE GREATLY HOBBLED BY THE BLANKET REQUIREMENT OF THE SAFEGUARDS
NECESSARY FOR A SEARCH OF EVIDENCE OF CRIMINAL ACTS.  THE NEED FOR
PREVENTIVE ACTION IS GREAT, AND CITY AFTER CITY HAS SEEN THIS NEED AND
GRANTED THE POWER OF INSPECTION TO ITS HEALTH OFFICIALS; AND THESE
INSPECTIONS ARE APPARENTLY WELCOMED BY ALL BUT AN INSIGNIFICANT FEW." 
AT 372. 

TODAY THE COURT RENDERS THIS MUNICIPAL EXPERIENCE, WHICH DATES BACK
TO COLONIAL DAYS, FOR NAUGHT BY OVERRULING FRANK V. MARYLAND AND BY
STRIKING DOWN HUNDREDS OF CITY ORDINANCES THROUGHOUT THE COUNTRY AND
JEOPARDIZING THEREBY THE HEALTH, WELFARE, AND SAFETY OF LITERALLY
MILLIONS OF PEOPLE. 

BUT THIS IS NOT ALL.  IT PROSTITUTES THE COMMAND OF THE FOURTH
AMENDMENT THAT "NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE" AND
SETS UP IN THE HEALTH AND SAFETY CODES AREA INSPECTION A NEWFANGLED
"WARRANT" SYSTEM THAT IS ENTIRELY FOREIGN TO FOURTH AMENDMENT
STANDARDS.  IT IS REGRETTABLE THAT THE COURT WIPES OUT SUCH A LONG AND
WIDELY ACCEPTED PRACTICE AND CREATES IN ITS PLACE SUCH ENORMOUS
CONFUSION IN ALL OF OUR TOWNS AND METROPOLITAN CITIES IN ONE FELL
SWOOP.  I DISSENT. 

             I. 

I SHALL NOT TREAT IN ANY DETAIL THE CONSTITUTIONAL ISSUE INVOLVED. 
FOR ME IT WAS SETTLED IN FRANK V. MARYLAND, SUPRA.  I WOULD ADHERE TO
THAT DECISION AND THE REASONING THEREIN OF MY LATE BROTHER
FRANKFURTER.  TIME HAS NOT SHOWN ANY NEED FOR CHANGE.  INDEED THE
OPPOSITE IS TRUE, AS I SHALL SHOW LATER.  AS I READ IT, THE FOURTH
AMENDMENT GUARANTEE OF INDIVIDUAL PRIVACY IS, BY ITS LANGUAGE,
SPECIFICALLY QUALIFIED.  IT PROHIBITS ONLY THOSE SEARCHES THAT ARE
"UNREASONABLE."  THE MAJORITY SEEM TO RECOGNIZE THIS FOR THEY SET UP A
NEW TEST FOR THE LONG-RECOGNIZED AND ENFORCED FOURTH AMENDMENT'S
"PROBABLE-CAUSE" REQUIREMENT FOR THE ISSUANCE OF WARRANTS.  THEY WOULD
PERMIT THE ISSUANCE OF PAPER WARRANTS, IN AREA INSPECTION PROGRAMS,
WITH PROBABLE CAUSE BASED ON AREA INSPECTION STANDARDS AS SET OUT IN
MUNICIPAL CODES, AND WITH WARRANTS ISSUED BY THE RUBBER STAMP OF A
WILLING MAGISTRATE.  (FN1)  IN MY VIEW, THIS DEGRADES THE FOURTH
AMENDMENT.                                             II. 

MOREOVER, HISTORY SUPPORTS THE FRANK DISPOSITION.  OVER 150 YEARS OF
CITY IN REM INSPECTIONS FOR HEALTH AND SAFETY PURPOSES HAVE
CONTINUOUSLY BEEN ENFORCED.  IN ONLY ONE CASE DURING ALL THAT PERIOD
HAVE THE COURTS DENIED MUNICIPALITIES THIS RIGHT.  SEE DISTRICT OF
COLUMBIA V. LITTLE, 85 U.S. APP. D.C. 242, 178 F.2D 13 (1949), AFF'D ON
OTHER GROUNDS, 339 U.S. 1 (1950).  IN ADDITION TO THE TWO CASES IN THIS
COURT (FRANK, SUPRA, AND EATON V. PRICE, 364 U.S. 263 (1960)), WHICH
HAVE UPHELD THE MUNICIPAL ACTION, NOT A SINGLE STATE HIGH COURT HAS
HELD AGAINST THE VALIDITY OF SUCH ORDINANCES.  INDEED, SINCE OUR FRANK
DECISION FIVE OF THE STATES' HIGHEST COURTS HAVE FOUND THAT REASONABLE
INSPECTIONS ARE CONSTITUTIONALLY PERMISSIBLE AND IN FACT IMPERATIVE,
FOR THE PROTECTION OF HEALTH, SAFETY, AND WELFARE OF THE MILLIONS WHO
INHABIT OUR CITIES AND  TOWNS.  (FN2) 

I SUBMIT THAT UNDER THE CAREFULLY CIRCUMSCRIBED REQUIREMENTS OF
HEALTH AND SAFETY CODES, AS WELL AS THE FACTS AND CIRCUMSTANCES OF
THESE PARTICULAR INSPECTIONS, THERE IS NOTHING UNREASONABLE ABOUT THE
ONES UNDERTAKEN HERE.  THESE INSPECTIONS MEET THE FOURTH AMENDMENT'S
TEST OF REASONABLENESS AND ARE ENTIRELY CONSISTENT WITH THE AMENDMENT'S
COMMANDS AND OUR CASES. 

THERE IS NOTHING HERE THAT SUGGESTS THAT THE INSPECTION WAS
UNAUTHORIZED, UNREASONABLE, FOR ANY IMPROPER PURPOSE, OR DESIGNED AS A
BASIS FOR A CRIMINAL PROSECUTION; NOR IS THERE ANY INDICATION OF ANY
DISCRIMINATORY, ARBITRARY, OR CAPRICIOUS ACTION AFFECTING THE APPELLANT
IN EITHER CASE.  INDEED, CAMARA WAS ADMITTEDLY VIOLATING THE CODE BY
LIVING IN QUARTERS PROHIBITED THEREBY; AND SEE WAS OPERATING A LOCKED
WAREHOUSE - A BUSINESS ESTABLISHMENT SUBJECT TO INSPECTION. 

THE MAJORITY SAY, HOWEVER, THAT UNDER THE PRESENT SYSTEM THE OCCUPANT
HAS NO WAY OF KNOWING THE NECESSITY FOR THE INSPECTION, THE LIMITS OF
THE INSPECTOR'S POWER, OR WHETHER THE INSPECTOR IS HIMSELF AUTHORIZED
TO PERFORM THE SEARCH.  EACH OF THE ORDINANCES HERE IS SUPPORTED BY
FINDINGS AS TO THE NECESSITY FOR INSPECTIONS OF THIS TYPE AND SAN
FRANCISCO SPECIFICALLY BANS THE CONDUCT IN WHICH APPELLANT CAMARA IS
ADMITTEDLY ENGAGED.  FURTHERMORE, ALL OF THESE DOUBTS RAISED BY THE
COURT COULD BE RESOLVED VERY QUICKLY.  INDEED, THE INSPECTORS ALL HAVE
IDENTIFICATION CARDS WHICH THEY SHOW THE OCCUPANT AND THE LATTER COULD
EASILY RESOLVE THE REMAINING QUESTIONS BY A CALL TO THE INSPECTOR'S
SUPERIOR OR, UPON DEMAND, RECEIVE A WRITTEN ANSWER THERETO.  THE RECORD
HERE SHOWS THESE CHALLENGES COULD HAVE BEEN EASILY INTERPOSED.  THE
INSPECTORS CALLED ON SEVERAL OCCASIONS, BUT STILL NO SUCH QUESTIONS
WERE RAISED.  (FN3)  THESE CASES, FROM THE OUTSET, WERE BASED ON THE
FOURTH AMENDMENT, NOT ON ANY OF THE CIRCUMSTANCES SURROUNDING THE
ATTEMPTED INSPECTION.  TO SAY, THEREFORE, THAT THE INSPECTION IS LEFT
TO THE DISCRETION OF THE OFFICER IN THE FIELD IS TO REACH A CONCLUSION
NOT AUTHORIZED BY THIS RECORD OR THE ORDINANCES INVOLVED HERE.  THE
COURT SAYS THE QUESTION IS NOT WHETHER THE "INSPECTIONS MAY BE MADE,
BUT WHETHER THEY MAY BE MADE WITHOUT A WARRANT."  WITH DUE RESPECT,
INSPECTIONS OF THIS TYPE HAVE BEEN MADE FOR OVER A CENTURY AND A HALF
WITHOUT WARRANTS AND IT IS A LITTLE LATE TO IMPOSE A DEATH SENTENCE ON
SUCH PROCEDURES NOW.  IN MOST INSTANCES THE OFFICER COULD NOT SECURE A
WARRANT - SUCH AS IN SEE'S CASE - THEREBY INSULATING LARGE AND
IMPORTANT SEGMENTS OF OUR CITIES FROM INSPECTION FOR HEALTH AND SAFETY
CONDITIONS.  IT IS THIS SITUATION - WHICH IS EVEN RECOGNIZED BY THE
COURT - THAT SHOULD GIVE US PAUSE. 

                                  III. 

THE GREAT NEED FOR HEALTH AND SAFETY INSPECTION IS EMPHASIZED BY THE
EXPERIENCE OF SAN FRANCISCO, A METROPOLITAN AREA KNOWN FOR ITS
CLEANLINESS AND SAFETY EVER SINCE IT SUFFERED EARTHQUAKE AND FIRE BACK
IN 1906.  FOR THE FISCAL YEAR ENDING JUNE 30, 1965, OVER 16,000
DWELLING STRUCTURES WERE INSPECTED, OF WHICH OVER 5,600 REQUIRED SOME
TYPE OF COMPLIANCE ACTION IN ORDER TO MEET CODE REQUIREMENTS.  AND IN
1965-1966 OVER 62,000 APARTMENTS, HOTELS, AND DWELLINGS WERE INSPECTED
WITH SIMILAR RESULTS.  DURING THE SAME PERIOD THE PUBLIC WORKS
DEPARTMENT CONDUCTED OVER 52,000 BUILDING INSPECTIONS, OVER 43,000
ELECTRICAL ONES AND OVER 33,000 PLUMBING INSPECTIONS.  DURING THE
ENTIRE YEAR 1965-1966 INSPECTORS WERE REFUSED ENTRY ON LESS THAN 10
OCCASIONS WHERE THE ORDINANCE REQUIRED THE HOUSEHOLDER TO SO PERMIT. 

IN SEATTLE, THE SITE OF NO. 180, SEE V. CITY OF SEATTLE, FIRE
INSPECTIONS OF COMMERCIAL AND INDUSTRIAL BUILDINGS TOTALED OVER 85,000
IN 1965.  IN JACKSONVILLE, FLORIDA, OVER 21,000 FIRE INSPECTIONS WERE
CARRIED ON IN THE SAME YEAR, WHILE IN EXCESS OF 135,000 HEALTH
INSPECTIONS WERE CONDUCTED.  IN PORTLAND, OREGON, OUT OF 27,000 HEALTH
AND SAFETY INSPECTIONS OVER 4,500 VIOLATIONS OF REGULATIONS WERE
UNCOVERED AND THE FIRE MARSHAL IN PORTLAND FOUND OVER 17,000 VIOLATIONS
OF THE FIRE CODE IN 1965 ALONE.  IN BOSTON OVER 56,000 CODE VIOLATIONS
WERE UNCOVERED IN 1966 WHILE IN BALTIMORE A SOMEWHAT SIMILAR SITUATION
WAS REPORTED. 

IN THE LARGER METROPOLITAN AREAS SUCH AS LOS ANGELES, OVER 300,000
INSPECTIONS (HEALTH AND FIRE) REVEALED OVER 28,000 HAZARDOUS
VIOLATIONS.  IN CHICAGO DURING THE PERIOD NOVEMBER 1965 TO DECEMBER
1966, OVER 18,000 BUILDINGS WERE FOUND TO BE RODENT INFESTED OUT OF
SOME 46,000 INSPECTIONS.  AND IN CLEVELAND THE DIVISION OF HOUSING
FOUND OVER 42,000 VIOLATIONS OF ITS CODE IN 1965; ITS HEALTH INSPECTORS
FOUND OVER 33,000 VIOLATIONS IN COMMERCIAL ESTABLISHMENTS ALONE AND
OVER 27,000 DWELLING CODE INFRACTIONS WERE REPORTED IN THE SAME
PERIOD.  AND IN NEW YORK CITY THE PROBLEM IS EVEN MORE ACUTE.  A GRAND
JURY IN BROOKLYN CONDUCTED A HOUSING SURVEY OF 15 SQUARE BLOCKS IN
THREE DIFFERENT AREAS AND FOUND OVER 12,000 HAZARDOUS VIOLATIONS OF
CODE RESTRICTIONS IN THOSE AREAS ALONE.  PRIOR TO THIS TEST THERE WERE
ONLY 567 VIOLATIONS REPORTED IN THE THREE AREAS.  THE PRESSING NEED FOR
INSPECTION IS SHOWN BY THE FACT THAT SOME 12,000 ADDITIONAL VIOLATIONS
WERE ACTUALLY PRESENT AT THAT VERY TIME. 

AN EVEN MORE DISASTROUS EFFECT WILL BE SUFFERED IN PLUMBING
VIOLATIONS.  THESE ARE NOT ONLY MORE FREQUENT BUT ALSO THE MORE
DANGEROUS TO THE COMMUNITY.  DEFECTIVE PLUMBING CAUSES BACK SIPHONAGE
OF SEWAGE AND OTHER HOUSEHOLD WASTES.  CHICAGO'S DISASTROUS AMOEBIC
DYSENTERY EPIDEMIC IS AN EXAMPLE.  OVER 100 DEATHS RESULTED.  FIRE CODE
VIOLATIONS ALSO OFTEN CAUSE MANY CONFLAGRATIONS.  INDEED, IF THE FIRE
INSPECTION ATTEMPTED IN DISTRICT OF COLUMBIA V. LITTLE, 339 U.S. 1
(1950), HAD BEEN PERMITTED A TWO-YEAR-OLD CHILD'S DEATH RESULTING FROM
A FIRE THAT GUTTED THE HOME INVOLVED THERE ON AUGUST 6, 1949, MIGHT
WELL HAVE BEEN PREVENTED. 

INSPECTIONS ALSO PLAY A VITAL ROLE IN URBAN REDEVELOPMENT AND SLUM
CLEARANCE.  STATISTICS INDICATE THAT SLUMS CONSTITUTE 20% OF THE
RESIDENTIAL AREA OF THE AVERAGE AMERICAN CITY, STILL THEY PRODUCE 35%
OF THE FIRES, 45% OF THE MAJOR CRIMES, AND 50% OF THE DISEASE.  TODAY'S
DECISION WILL PLAY HAVOC WITH THE MANY PROGRAMS NOW DESIGNED TO AID IN
THE IMPROVEMENT OF THESE AREAS.  WE SHOULD REMEMBER THE ADMONITION OF
MR. JUSTICE DOUGLAS IN BERMAN V. PARKER, 348 U.S. 26, 32 (1954): 

"MISERABLE AND DISREPUTABLE HOUSING CONDITIONS MAY DO MORE THAN
SPREAD DISEASE AND CRIME AND IMMORALITY.  THEY MAY ALSO SUFFOCATE THE
SPIRIT BY REDUCING THE PEOPLE WHO LIVE THERE TO THE STATUS OF CATTLE. 
THEY MAY INDEED MAKE LIVING AN ALMOST INSUFFERABLE BURDEN." 

                          IV. 

THE MAJORITY PROPOSE TWO ANSWERS TO THIS ADMITTEDLY PRESSING PROBLEM
OF NEED FOR CONSTANT INSPECTION OF PREMISES FOR FIRE, HEALTH, AND
SAFETY INFRACTIONS OF MUNICIPAL CODES.  FIRST, THEY SAY THAT THERE WILL
BE FEW REFUSALS OF ENTRY TO INSPECT.  UNLIKE THE ATTITUDE OF
HOUSEHOLDERS AS TO CODES REQUIRING ENTRY FOR INSPECTION, WE HAVE FEW
EMPIRICAL STATISTICS ON ATTITUDES WHERE CONSENT MUST BE OBTAINED.  IT
IS TRUE THAT IN THE REQUIRED ENTRY-TO-INSPECT SITUATIONS MOST OCCUPANTS
WELCOME THE PERIODIC VISITS OF MUNICIPAL INSPECTORS.  IN MY VIEW THIS
WILL NOT BE TRUE WHEN CONSENT IS NECESSARY.  THE CITY OF PORTLAND,
OREGON, HAS A VOLUNTARY HOME INSPECTION PROGRAM.  THE 1966 RECORD SHOWS
THAT OUT OF 16,171 CALLS WHERE THE OCCUPANT WAS AT HOME, ENTRY WAS
REFUSED IN 2,540 CASES - APPROXIMATELY ONE OUT OF SIX.  THIS IS A LARGE
PERCENTAGE AND WOULD PLACE AN INTOLERABLE BURDEN ON THE INSPECTION
SERVICE WHEN REQUIRED TO SECURE WARRANTS.  WHAT IS MORE IMPORTANT IS
THAT OUT OF THE HOUSES INSPECTED 4,515 HAZARDOUS CONDITIONS WERE
FOUND]  HENCE, ON THE SAME PERCENTAGE, THERE WOULD BE APPROXIMATELY 840
HAZARDOUS SITUATIONS IN THE 2,540 IN WHICH INSPECTION WAS REFUSED IN
PORTLAND. 

HUMAN NATURE BEING WHAT IT IS, WE MUST FACE UP TO THE FACT THAT
THOUSANDS OF INSPECTIONS ARE GOING TO BE DENIED.  THE ECONOMICS OF THE
SITUATION ALONE WILL FORCE THIS RESULT.  HOMEOWNERS GENERALLY TRY TO
MINIMIZE MAINTENANCE COSTS AND SOME LANDLORDS MADE NEEDED REPAIRS ONLY
WHEN REQUIRED TO DO SO.  IMMEDIATE PROSPECTS FOR COSTLY REPAIRS TO
CORRECT POSSIBLE DEFECTS ARE GOING TO KEEP MANY A DOOR CLOSED TO THE
INSPECTOR.  IT WAS SAID BY WAY OF DISSENT IN FRANK V. MARYLAND, SUPRA,
AT 384, THAT "ONE REBEL A YEAR" IS NOT TOO GREAT A PRICE TO PAY FOR THE
RIGHT TO PRIVACY.  BUT WHEN VOLUNTARY INSPECTION IS RELIED UPON THIS
"ONE REBEL" IS GOING TO BECOME A GENERAL REBELLION.  THAT THERE WILL BE
A SIGNIFICANT INCREASE IN REFUSALS IS CERTAIN AND, AS TIME GOES ON,
THAT TREND MAY WELL BECOME A FRIGHTENING REALITY.  IT IS SUBMITTED THAT
VOLUNTARY COMPLIANCE CANNOT BE DEPENDED UPON. 

THE COURT THEN ADDRESSES ITSELF TO THE PROPRIETY OF WARRANTLESS AREA
INSPECTIONS.  (FN4) THE BASIS OF "PROBABLE CAUSE" FOR AREA INSPECTION
WARRANTS, THE COURT SAYS, BEGINS WITH THE FOURTH AMENDMENT'S
REASONABLENESS REQUIREMENT; IN DETERMINING WHETHER AN INSPECTION IS
REASONABLE "THE NEED FOR THE INSPECTION MUST BE WEIGHED IN TERMS OF
THESE REASONABLE GOALS OF CODE ENFORCEMENT."  IT ADDS THAT THERE ARE "A
NUMBER OF PERSUASIVE FACTORS" SUPPORTING "THE REASONABLENESS OF AREA
CODE-ENFORCEMENT INSPECTIONS."  IT IS INTERESTING TO NOTE THAT THE
FACTORS THE COURT RELIES UPON ARE THE IDENTICAL ONES MY BROTHER
FRANKFURTER GAVE FOR EXCUSING WARRANTS IN FRANK V. MARYLAND, SUPRA.
THEY ARE:  LONG ACCEPTANCE HISTORICALLY; THE GREAT PUBLIC INTEREST IN
HEALTH AND SAFETY; AND THE IMPERSONAL NATURE OF THE INSPECTIONS - NOT
FOR EVIDENCE OF CRIME - BUT FOR THE PUBLIC WELFARE.  UPON THIS
REASONING, THE COURT CONCLUDES THAT PROBABLE CAUSE EXISTS "IF
REASONABLE LEGISLATIVE OR ADMINISTRATIVE STANDARDS FOR CONDUCTING AN
AREA INSPECTION ARE SATISFIED WITH RESPECT TO A PARTICULAR DWELLING." 
THESE STANDARDS WILL VARY, IT SAYS, ACCORDING TO THE CODE PROGRAM AND
THE CONDITION OF THE AREA WITH REFERENCE THERETO RATHER THAN THE
CONDITION OF A PARTICULAR DWELLING.  THE MAJORITY SEEM TO HOLD THAT
WARRANTS MAY BE OBTAINED AFTER A REFUSAL OF INITIAL ENTRY; I CAN FIND
NO SUCH CONSTITUTIONAL DISTINCTION OR COMMAND.  THESE BOXCAR WARRANTS
WILL BE IDENTICAL AS TO EVERY DWELLING IN THE AREA, SAVE THE STREET
NUMBER ITSELF.  I DARESAY THEY WILL BE PRINTED UP IN PADS OF A THOUSAND
OR MORE - WITH SPACE FOR THE STREET NUMBER TO BE INSERTED - AND ISSUED
BY MAGISTRATES IN BROADCASE FASHION AS A MATTER OF COURSE. 

I ASK:  WHY GO THROUGH SUCH AN EXERCISE, SUCH A PRETENSE?  AS THE
SAME ESSENTIALS ARE BEING FOLLOWED UNDER THE PRESENT PROCEDURES, I ASK:
WHY THE CEREMONY, THE DELAY, THE EXPENSE, THE ABUSE OF THE SEARCH
WARRANT?  IN MY VIEW THIS WILL NOT ONLY DESTROY ITS INTEGRITY BUT WILL
DEGRADE THE MAGISTRATE ISSUING THEM AND SOON BRING DISREPUTE NOT ONLY
UPON THE PRACTICE BUT UPON THE JUDICIAL PROCESS.  IT WILL BE VERY
COSTLY TO THE CITY IN PAPERWORK INCIDENT TO THE ISSUANCE OF THE PAPER
WARRANTS, IN LOSS OF TIME OF INSPECTORS AND WASTE OF THE TIME OF
MAGISTRATES AND WILL RESULT IN MORE ANNOYANCE TO THE PUBLIC.  IT WILL
ALSO BE MORE BURDENSOME TO THE OCCUPANT OF THE PREMISES TO BE
INSPECTED.  UNDER A SEARCH WARRANT THE INSPECTOR CAN ENTER ANY TIME HE
CHOOSES.  UNDER THE EXISTING PROCEDURES HE CAN ENTER ONLY AT REASONABLE
TIMES AND INVARIABLY THE CONVENIENCE OF THE OCCUPANT IS CONSIDERED.  I
SUBMIT THAT THE IDENTIAL GROUNDS FOR ACTION ELABORATED TODAY GIVE MORE
SUPPORT - BOTH LEGAL AND PRACTICAL - TO THE PRESENT PRACTICE AS
APPROVED IN FRANK V. MARYLAND, SUPRA, THAN THEY DO TO THIS LEGALISTIC
FACADE THAT THE COURT CREATES.  IN THE COURT'S ANXIETY TO LIMIT ITS OWN
HOLDING AS TO MASS SEARCHES IT HOPES TO DIVERT ATTENTION FROM THE FACT
THAT IT DESTROYS THE HEALTH AND SAFETY CODES AS THEY APPLY TO
INDIVIDUAL INSPECTIONS OF SPECIFIC PROBLEMS AS CONTRASTED TO AREA
ONES.  WHILE THE LATTER ARE IMPORTANT, THE INDIVIDUAL INSPECTION IS
OFTEN MORE SO; THAT WAS TRUE IN DISTRICT OF COLUMBIA V. LITTLE AND IT
MAY WELL BE IN BOTH CAMARA AND SEE.  FRANKLY, I CANNOT UNDERSTAND HOW
THE COURT CAN AUTHORIZE WARRANTS IN WHOLESALE FASHION IN THE CASE OF AN
AREA INSPECTION, BUT HOLD THE HAND OF THE INSPECTOR WHEN A SPECIFIC
DWELLING IS HAZARDOUS TO THE HEALTH AND SAFETY OF ITS NEIGHBORS. 

FN1  UNDER THE PROBABLE-CAUSE STANDARD LAID DOWN BY THE COURT, IT
APPEARS TO ME THAT THE ISSUANCE OF WARRANTS COULD MORE APPROPRIATELY BE
THE FUNCTION OF THE AGENCY INVOLVED THAN THAT OF THE MAGISTRATE.  THIS
WOULD ALSO RELIEVE MAGISTRATES OF AN INTOLERABLE BURDEN.  IT IS
THEREFORE UNFORTUNATE THAT THE COURT FAILS TO PASS ON THE VALIDITY OF
THE USE OF ADMINISTRATIVE WARRANTS. 

FN2  DEPASS V. CITY OF SPARTANBURG, 234 S.C. 198, 107 S.E.2D 350
(1959); CITY OF ST. LOUIS V. EVANS, 337 S.W.2D 948 (MO. 1960); CAMARA
V. MUNICIPAL COURT, 237 CAL. APP. 2D 128, 46 CAL. RPTR.  585 (1965),
PET. FOR HEARING IN CAL. SUP. CT. DEN.  (CIV.  NO. 22128) NOV. 19,
1965; COMMONWEALTH V. HADLEY, 351 MASS. 439, 222 N.E.2D 681, APPEAL
DOCKETED, JAN 5, 1967, NO. 1179, MISC., O.T. 1966; CITY OF SEATTLE V.
SEE, 67 WASH. 2D 475, 408 P.2D 262 (1965).    FN3  INDEED, APPELLANT
CAMARA WAS SUMMONED TO THE OFFICE OF THE DISTRICT ATTORNEY - BUT FAILED
TO APPEAR - WHERE HE CERTAINLY COULD HAVE RAISED THESE QUESTIONS. 

FN4  IT IS INTERESTING TO NOTE THAT IN EACH OF THESE CASES HERE THE
AUTHORITIES WERE MAKING PERIODIC AREA INSPECTIONS WHEN THE REFUSALS TO
ALLOW ENTRY OCCURRED.  UNDER THE HOLDING OF THE COURT TODAY, "PROBABLE
CAUSE" WOULD THEREFORE BE PRESENT IN EACH CASE AND A "PAPER WARRANT"
WOULD ISSUE AS A MATTER OF COURSE.  THIS BUT EMPHASIZES THE ABSURDITY
OF THE HOLDING. 
..END :










DENVER & R.G.W.R. CO. V. TRAINMEN 387 U.S. 556 


NO. 794.  ARGUED APRIL 19, 1967 - DECIDED JUNE 5, 1967 - 367 F.2D 137,
REVERSED AND REMANDED. 


PETITIONER, RAILROAD, BROUGHT SUIT IN FEDERAL COURT IN COLORADO
AGAINST RESPONDENT UNION, AN UNINCORPORATED ASSOCIATION WITH
HEADQUARTERS IN OHIO, AND CERTAIN INDIVIDUAL MEMBERS, FOR DAMAGES
RESULTING FROM A STRIKE IN VIOLATION OF THE RAILWAY LABOR ACT.  AT THE
TIME THE SUIT WAS BROUGHT, VENUE IN FEDERAL-QUESTION CASES LAY ONLY IN
THE DISTRICT "WHERE ALL DEFENDANTS RESIDE."  28 U.S.C. SEC. 1391(B). 
THE STATUTE DID NOT DEFINE THE RESIDENCE OF AN UNINCORPORATED
ASSOCIATION.  SUBSEQUENTLY THAT STATUTE WAS AMENDED TO PERMIT SUITS
ALSO IN THE DISTRICT WHERE THE CLAIM ARISES.  THE UNION'S MOTION TO
DISMISS FOR IMPROPER VENUE WAS OVERRULED, THE CASE WAS TRIED, AND
JUDGMENT WAS ENTERED FOR PETITIONER.  THE COURT OF APPEALS REVERSED,
HOLDING THAT THE UNION COULD BE SUED UNDER SEC. 1391(B) ONLY IN THE
DISTRICT OF ITS RESIDENCE AND THAT ITS RESIDENCE WAS NOT IN COLORADO. 
HELD: 

1.  THE RESIDENCE OF AN UNINCORPORATED ASSOCIATION (WHICH SHOULD BE
VIEWED AS AN ENTITY FOR VENUE PURPOSES) UNDER THE PREVIOUS VERSION OF
SEC. 1391(B) REFERS TO WHEREVER IT IS "DOING BUSINESS."  PP. 559-563. 

2.  THE DISTRICT COURT SHOULD NOW DETERMINE WHETHER OR NOT RESPONDENT
WAS "DOING BUSINESS" IN COLORADO; IF IT FINDS THAT RESPONDENT WAS NOT,
THE APPROPRIATENESS OF VENUE UNDER THE CURRENT VERSION OF SEC. 1391
(I.E., WHETHER THE CLAIM "AROSE" IN COLORADO) SHOULD BE CONSIDERED. 
PP. 563-564. 

DENVER & RIO GRANDE WESTERN RAILROAD CO. V. BROTHERHOOD OF RAILROAD
TRAINMEN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE CONCERNS THE PROPER VENUE FOR A SUIT AGAINST A
LABOR UNION, AN UNINCORPORATED ASSOCIATION, UNDER 28 U.S.C. SEC.
1391(B), WHICH AT THE TIME THIS ACTION WAS BROUGHT READ AS FOLLOWS:  "A
CIVIL ACTION WHEREIN JURISDICTION IS NOT FOUNDED SOLELY ON DIVERSITY OF
CITIZENSHIP MAY BE BROUGHT ONLY IN THE JUDICIAL DISTRICT WHERE ALL
DEFENDANTS RESIDE, EXCEPT AS OTHERWISE PROVIDED BY LAW." 

IN DECEMBER 1959 AND JANUARY 1960, THE NATIONAL RAILROAD ADJUSTMENT
BOARD ISSUED MONETARY AWARDS IN FAVOR OF CERTAIN MEMBERS OF RESPONDENT
UNION ON THEIR CLAIMS FOR BREACH OF COLLECTIVE BARGAINING CONTRACTS
BETWEEN THE UNION AND PETITIONER, THE DENVER & RIO GRANDE WESTERN
RAILROAD COMPANY.  THE RAILROAD REFUSED TO HONOR THE AWARDS, THE UNION
STRUCK TO ENFORCE THEM AND THE STRIKE WAS PERMANENTLY ENJOINED BY THE
DISTRICT COURT.  185 F. SUPP. 369, AFF'D, 290 F.2D 266, CERT. DENIED,
366 U.S. 966.  THE RAILROAD THEN SUED THE UNION FOR DAMAGES IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO, ALSO JOINING
AS DEFENDANTS R.E. CARROLL, CHAIRMAN OF THE UNION'S GENERAL GRIEVANCE
COMMITTEE ON THE PROPERTY OF PETITIONER, AND THE CHAIRMEN OF VARIOUS
LOCAL LODGES OF THE UNION.  THE COMPLAINT ALLEGED THAT THE DEFENDANTS
HAD BREACHED THEIR DUTIES UNDER THE RAILWAY LABOR ACT, 44 STAT. 577, AS
AMENDED, 45 U.S.C. SEC. 151 ET SEQ. THE DISTRICT COURT OVERRULED THE
UNION'S MOTION TO DISMISS FOR IMPROPER VENUE, HELD THE STRIKE ILLEGAL
BECAUSE THE UNION HAD FAILED TO EXHAUST ITS STATUTORY REMEDIES TO
ENFORCE THE ADJUSTMENT BOARD AWARDS, AND AWARDED DAMAGES BASED ON THE
RAILROAD'S LOSS OF TRAFFIC CAUSED BY THE ILLEGAL STRIKE.  THE JUDGMENT
RAN AGAINST BOTH THE UNION AND CARROLL, THE CASE AGAINST THE OTHER
DEFENDANTS BEING DISMISSED FOR FAILURE OF PROOF.  THE COURT OF APPEALS
REVERSED, HOLDING THAT THE UNION COULD BE SUED UNDER SEC. 1391(B) ONLY
IN THE DISTRICT OF ITS RESIDENCE AND THAT ITS RESIDENCE WAS NOT IN
COLORADO.  (FN1)  BECAUSE OF THE SEEMING CONFLICT WITH RUTLAND R. CO.
V. BROTHERHOOD OF LOCOMOTIVE ENG'RS, 307 F.2D 21, WE GRANTED
CERTIORARI.  385 U.S. 1000.  WE REVERSE. 

CAUSES OF ACTION IN THE FEDERAL COURTS WHERE JURISDICTION DOES NOT
DEPEND WHOLLY ON DIVERSITY OF CITIZENSHIP.  FOLLOWING ITS AMENDMENT IN
1966, 80 STAT. 111, THE SECTION PERMITS SUIT EITHER IN THE DISTRICT
WHERE ALL OF THE DEFENDANTS RESIDE OR IN THE DISTRICT WHERE THE CLAIM
AROSE.  AT THE TIME THIS SUIT WAS BROUGHT, HOWEVER, VENUE LAY ONLY AT
THE DEFENDANT'S RESIDENCE, AS HAD BEEN THE CASE SINCE 1887.  24 STAT.
552, AS CORRECTED BY 25 STAT. 433 (1888).  THUS FOR ALMOST 80 YEARS
PROPER VENUE IN FEDERAL-QUESTION CASES WAS LIMITED TO THE DISTRICT OF
THE DEFENDANT'S RESIDENCE, WHETHER THE DEFENDANT WAS AN INDIVIDUAL, A
CORPORATION, OR AN UNINCORPORATED ASSOCIATION SUCH AS THIS RESPONDENT. 
DURING ALL OF THIS TIME, DOWN TO AND INCLUDING THE 1966 AMENDMENT,
CONGRESS HAS NOT EXPRESSLY DEFINED THE RESIDENCE OF AN UNINCORPORATED
ASSOCIATION FOR PURPOSES OF THE GENERAL VENUE STATUTE.  THE SAME WAS
TRUE WITH RESPECT TO CORPORATIONS UNTIL 1948 WHEN CONGRESS DIRECTED
THAT A CORPORATION COULD BE SUED IN THE JUDICIAL DISTRICT "IN WHICH IT
IS INCORPORATED OR LICENSED TO DO BUSINESS OR IS DOING BUSINESS, AND
SUCH JUDICIAL DISTRICT SHALL BE REGARDED AS THE RESIDENCE OF SUCH
CORPORATION FOR VENUE PURPOSES."  28 U.S.C. SEC. 1391(C).  CONGRESS HAS
MAINTAINED ITS SILENCE, HOWEVER, WITH RESPECT TO THE RESIDENCE OF THE
UNINCORPORATED ASSOCIATION.  THE RESOLUTION OF THAT ISSUE, AS WAS TRUE
FOR THE CORPORATION PRIOR TO 1948, HAS BEEN LEFT TO THE COURTS.  THE
ISSUE IS NOW HERE FOR THE FIRST TIME. 

OF COURSE, VENUE FOR A SUIT AGAINST AN UNINCORPORATED ASSOCIATION
BECOMES IMPORTANT ONLY IF THE ASSOCIATION IS ITSELF SUABLE.  AT COMMON
LAW, SUCH AN ASSOCIATION COULD BE SUED ONLY IN THE NAMES OF ITS MEMBERS
AND LIABILITY HAD TO BE ENFORCED AGAINST EACH MEMBER.  THIS PRINCIPLE
WAS REJECTED IN UNITED MINE WORKERS V. CORONADO CO., 259 U.S. 344,
WHERE THIS COURT, RECOGNIZING THE GROWTH AND PERVASIVE INFLUENCE OF
LABOR ORGANIZATIONS AND NOTING THAT THE SUABILITY OF TRADE UNIONS "IS
OF PRIMARY IMPORTANCE IN THE WORKING OUT OF JUSTICE AND IN PROTECTING
INDIVIDUALS AND SOCIETY  ...  ," 259 U.S., AT 390, HELD THAT SUCH
ORGANIZATIONS WERE SUABLE IN THE FEDERAL COURTS AND THAT FUNDS
ACCUMULATED BY THEM WERE SUBJECT TO EXECUTION IN SUITS FOR TORTS
COMMITTED DURING STRIKES.  THE CORONADO HOLDING IS NOW REFLECTED IN
FED. RULE CIV. PROC. 17(B). 

THE CORONADO CASE DEALT WITH CAPACITY TO BE SUED, NOT WITH VENUE, BUT
IT DID LEGITIMATE SUING THE UNINCORPORATED ASSOCIATION AS AN ENTITY. 
ALTHOUGH THAT ENTITY HAS NO CITIZENSHIP INDEPENDENT OF ITS MEMBERS FOR
PURPOSES OF DIVERSITY JURISDICTION, STEELWORKERS V. BOULIGNY, INC., 382
U.S. 145, A CASE RELIED UPON BY THE COURT OF APPEALS HERE, WE THINK
THAT THE QUESTION OF THE PROPER VENUE FOR SUCH A DEFENDANT, LIKE THE
QUESTION OF CAPACITY, SHOULD BE DETERMINED BY LOOKING TO THE RESIDENCE
OF THE ASSOCIATION ITSELF RATHER THAN THAT OF ITS INDIVIDUAL MEMBERS. 
OTHERWISE, SEC. 1391(B) WOULD SEEM TO REQUIRE EITHER HOLDING THE
ASSOCIATION NOT SUABLE AT ALL WHERE ITS MEMBERS ARE RESIDENTS OF
DIFFERENT STATES, OR HOLDING THAT THE ASSOCIATION "RESIDES" IN ANY
STATE IN WHICH ANY OF ITS MEMBERS RESIDES.  THE FIRST ALTERNATIVE SEEMS
WHOLLY AT ODDS WITH CORONADO AND IN ADDITION REMOVES FEDERAL-QUESTION
LITIGATION FROM THE FEDERAL COURTS UNNECESSARILY; THE SECOND IS
PATENTLY UNFAIR TO THE ASSOCIATION WHEN IT IS REMEMBERED THAT VENUE IS
PRIMARILY A MATTER OF CONVENIENCE OF LITIGANTS AND WITNESSES.  H.R.
REP. NO. 1893, 89TH CONG., 2D SESS., P. 2.  OF COURSE, HAVING CONCLUDED
THAT THE UNINCORPORATED ASSOCIATION SHOULD BE VIEWED AS AN ENTITY FOR
PURPOSES OF RESIDENCE UNDER SEC. 1391(B), THAT RESIDENCE MUST STILL BE
ASCERTAINED, AN INQUIRY REQUIRING EXAMINATION OF CONGRESSIONAL INTENT
AND THE INTERESTS REFLECTED IN CORONADO AND IN PRINCIPLES UNDERLYING
VENUE LIMITATIONS. 

IN SPERRY PRODS., INC. V. ASSOCIATION OF AMERICAN RAILROADS, 132 F.2D
408, THE COURT OF APPEALS FOR THE SECOND CIRCUIT DEALT WITH THE ISSUE
OF WHAT DISTRICT AN UNINCORPORATED ASSOCIATION MAY BE SAID TO INHABIT
UNDER THE SPECIAL VENUE STATUTE GOVERNING PATENT SUITS, THEN 28 U.S.C.
SEC. 109 (1940 ED.), NOW 28 U.S.C. SEC. 1400.  THAT COURT THOUGHT THE
ASSOCIATION SHOULD BE TREATED LIKE A CORPORATION.  UNDER THE DECISIONS
OF THIS COURT, CORPORATIONS HAD A SINGLE RESIDENCE FOR VENUE PURPOSES,
THE STATE OF THEIR INCORPORATION.  LIKEWISE, THE SPERRY COURT THOUGHT
THE UNINCORPORATED ASSOCIATION SHOULD BE CONSIDERED AS HAVING A SINGLE
RESIDENCE, IN ITS CASE ITS PRINCIPAL PLACE OF BUSINESS.  NEIRBO CO. V.
BETHLEHEM CORP., 308 U.S. 165, HAD ALREADY DETERMINED, HOWEVER, THAT
CORPORATIONS, WHILE HAVING ONLY ONE RESIDENCE, NEVERTHELESS CONSENTED
TO BE SUED IN FEDERAL DIVERSITY SUITS WHERE THEY WERE LICENSED TO DO
BUSINESS.  AND NEIRBO HAD MUCH TO DO WITH PRODUCING THE 1948
CONGRESSIONAL DEFINITION OF CORPORATE RESIDENCE AS INCLUDING NOT ONLY
THE STATE OF INCORPORATION BUT WHEREVER THE CORPORATION IS LICENSED TO
DO BUSINESS OR IS DOING BUSINESS. 

IT CAN BE ARGUED, AS RESPONDENT DOES, THAT HAD THE 1948 CONGRESS
INTENDED THE EXPANDED DEFINITION OF CORPORATE RESIDENCE TO APPLY TO
LABOR UNIONS AND OTHER UNINCORPORATED ASSOCIATIONS, IT WOULD HAVE SAID
SO.  BUT EVEN ACCEPTING THIS, THE QUESTION OF WHAT THE ASSOCIATION'S
RESIDENCE IS FOR VENUE PURPOSES REMAINS UNANSWERED.  SAYING THAT
CONGRESS DID NOT INTEND TO "CHARGE" THE VENUE LAW WITH RESPECT TO
UNINCORPORATED ASSOCIATIONS ASSUMES A SETTLED MEANING TO THE PRIOR
LAW.  THIS WAS NOT THE CASE.  THERE WAS NO SETTLED CONSTRUCTION OF THE
LAW IN THE COURTS IN 1948, AND THERE IS NONE YET.  NOR WAS THERE
ANYTHING TO INDICATE THAT CONGRESS HAD CONSIDERED A LABOR UNION'S
RESIDENCE TO BE IN ONLY ONE PLACE OR HAD EVER INTENDED A LIMITED VIEW
OF RESIDENCE WITH RESPECT TO UNINCORPORATED ASSOCIATIONS.  RATHER THAN
ACCEPTING RESPONDENT'S POSITION, WE VIEW THE ACTION OF CONGRESS IN 1948
AS SIMPLY CORRECTING AN UNACCEPTABLY NARROW DEFINITION OF CORPORATE
RESIDENCE WHICH HAD BEEN ADOPTED BY THE COURTS, WHILE MAINTAINING ITS
SILENCE WITH RESPECT TO THE UNINCORPORATED ASSOCIATION.  AND IF IT IS
ASSUMED THAT CONGRESS WAS AWARE OF SPERRY AT ALL, IT IS SURELY
REASONABLE TO THINK THAT CONGRESS ANTICIPATED THAT THE APPROACH OF THAT
CASE, ANALOGIZING INCORPORATED AND UNINCORPORATED ENTITIES, WOULD
CONTINUE TO BE FOLLOWED BY THE COURTS SO THAT IF CORPORATE RESIDENCE
WERE BROADLY DEFINED BY THE CONGRESS, THE COURTS WOULD SIMILARLY
CONSTRUE THE CONCEPT OF RESIDENCE OF THE UNINCORPORATED ASSOCIATION. 
THIS WAS THE APPROACH OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN
RUTLAND R. CO. V. BROTHERHOOD OF LOCOMOTIVE ENG'RS, SUPRA.  (FN2)

WE THINK IT MOST NEARLY APPROXIMATES THE INTENT OF CONGRESS TO
RECOGNIZE THE REALITY OF THE MULTI-STATE, UNINCORPORATED ASSOCIATION
SUCH AS A LABOR UNION AND TO PERMIT SUIT AGAINST THAT ENTITY, LIKE THE
ANALOGOUS CORPORATE ENTITY, WHEREVER IT IS "DOING BUSINESS."  CONGRESS
HAS ITSELF RECOGNIZED AS MUCH IN A SPECIAL VENUE STATUTE, SEC. 301(C)
OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 157, 29 U.S.C.
SEC. 185(C), WHICH PROVIDES THAT ACTIONS AGAINST LABOR UNIONS GOVERNED
BY THE LABOR MANAGEMENT RELATIONS ACT MAY BE BROUGHT IN ANY DISTRICT
WHERE THE UNION MAINTAINS ITS PRINCIPAL OFFICE OR IN ANY DISTRICT IN
WHICH ITS DULY AUTHORIZED OFFICERS OR AGENTS ARE ENGAGED IN
REPRESENTING OR ACTING FOR EMPLOYEE MEMBERS.  THAT STATUTE WAS ENACTED
BUT A YEAR BEFORE THE 1948 REVISION OF THE JUDICIAL CODE, AND WHILE IT
DOES NOT MENTION RESIDENCE, IT IS A CONSIDERABLE INDICATION THAT
CONGRESS HAD NO DESIRE, THEN OR AT ANY PREVIOUS TIME, TO CONSTRUE
"RESIDENCE" AS USED IN THE GENERAL VENUE PROVISION SO AS TO CONFINE
SUITS AGAINST A LABOR UNION TO THE DISTRICT WHERE ITS PRINCIPAL OFFICE
IS LOCATED.  MOREOVER, FROM THE STANDPOINT OF CONVENIENCE TO PARTIES
AND WITNESSES, THERE WOULD BE LITTLE MERIT IN HOLDING THAT SUITS
AGAINST UNIONS COVERED BY THE NATIONAL LABOR RELATIONS ACT MAY BE
BROUGHT ANYWHERE THE RESPONSIBLE REPRESENTATIVES OF THE UNION TAKE
CONCRETE ACTION AND YET HOLD THAT SUITS FOR SIMILAR CONDUCT AGAINST
UNIONS SUBJECT TO A PARALLEL FEDERAL LABOR STATUTE, THE RAILWAY LABOR
ACT, MAY BE BROUGHT ONLY WHERE THE UNION'S PRINCIPAL OFFICE IS
LOCATED.  NOR NEED WE HERE BE CONCERNED, AS IN BOULIGNY, WITH POSSIBLE
EFFECTS ON THE SCOPE OF THE JURISDICTION OF THE FEDERAL COURTS.  UNDER
THESE CIRCUMSTANCES, FOR THIS COURT TO CREATE SUCH A DISTINCTION
WITHOUT SOME POSITIVE LEAD FROM CONGRESS AND IN THE FACE OF SOUND
POLICY CONSIDERATIONS TO THE CONTRARY WOULD BE UNJUSTIFIED. 

WE THEREFORE CONCLUDE THAT THE COURT OF APPEALS IMPROPERLY APPLIED
SEC. 1391(B) AS IT READ WHEN THIS SUIT WAS BROUGHT.  BUT EVEN IF WE
INSTEAD AGREED WITH THE COURT OF APPEALS ON THIS QUESTION, THE CASE
MUST BE CONSIDERED IN LIGHT OF THE PRESENT FORM OF THAT SECTION, THAT
IS, AS AMENDED BY THE ACT OF NOVEMBER 2, 1966, WHICH PROVIDES FOR VENUE
NOT ONLY AT THE PLACE OF A DEFENDANT'S RESIDENCE BUT ALSO IN THE
DISTRICT WHERE THE CLAIM AROSE.  THIS AMENDMENT DOES NOT CHANGE THE
SUBSTANTIVE LAW APPLICABLE TO THIS LAWSUIT.  IT IS WHOLLY PROCEDURAL. 
ABSENT SOME CONTRARY INDICATIONS BY THE CONGRESS AND ABSENT ANY
PROCEDURAL PREJUDICE TO EITHER PARTY, THE 1966 AMENDMENT TO SEC. 1391
IS APPLICABLE TO THIS SUIT.  SEE UNITED STATES V. ALABAMA, 362 U.S.
602; EX PARTE COLLETT, 337 U.S. 55; AMERICAN FOUNDRIES V. TRI-CITY
COUNCIL, 257 U.S. 184, 201; PRUESS V. UDALL, 123 U.S. APP. D.C. 301,
359 F.2D 615.  AS THIS COURT SAID IN APPLYING 28 U.S.C. SEC. 1404(A) TO
PENDING ACTIONS, "NO ONE HAS A VESTED RIGHT IN ANY GIVEN MODE OF
PROCEDURE."  EX PARTE COLLETT, 337 U.S., AT 71.  AND IN ANY EVENT, IF
THE DECISION BELOW WERE AFFIRMED, THE PETITIONER COULD REINSTITUTE THE
SAME ACTION IN THE SAME DISTRICT COURT AND SEEK THE BENEFITS OF THE
CURRENT VERSION OF SEC. 1391, ABSENT THE BARRIER OF ANY APPLICABLE
STATUTE OF LIMITATIONS.  WE DO NOT, OF COURSE, INTIMATE ANY VIEWS AS TO
WHETHER THIS CLAIM "AROSE" IN THE DISTRICT OF COLORADO.  THAT WOULD BE
AN ISSUE FOR THE DISTRICT COURT SHOULD IT NOW BE DETERMINED, IN LIGHT
OF THIS OPINION, THAT RESPONDENT WAS NOT DOING BUSINESS IN COLORADO
WHEN THIS SUIT WAS INSTITUTED.  REVERSED AND REMANDED. 

FN1  THE COURT OF APPEALS ALSO REVERSED THE DAMAGE AWARD AGAINST
RESPONDENT CARROLL, CONCLUDING THAT CARROLL WAS NOT RESPONSIBLE FOR THE
STRIKE IN QUESTION.  WE DO NOT DISTURB THIS FACTUAL DETERMINATION OF
THE COURT OF APPEALS.  CARROLL'S RESIDENCE IS ADMITTEDLY WITHIN THE
DISTRICT OF COLORADO. 

FN2  OTHER LOWER COURT CASES ARE DIVIDED ON THE QUESTION WHETHER AN
UNINCORPORATED ASSOCIATION CAN BE SUED AT A PLACE OTHER THAN ITS
PRINCIPAL PLACE OF BUSINESS.  CASES RESTRICTING VENUE TO THE
ASSOCIATION'S PRINCIPAL PLACE OF BUSINESS INCLUDE BROTHERHOOD OF
LOCOMOTIVE FIREMEN V. GRAHAM, 84 U.S. APP. D.C. 67, 69, N. 2, 175 F.2D
802, 804, N. 2, REV'D ON OTHER GROUNDS, 338 U.S. 232; MCNUTT V. UNITED
GAS, COKE & CHEM.  WORKERS, 108 F. SUPP. 871, 875; SALVANT V.
LOUISVILLE & N.R. CO., 83 F. SUPP. 391, 396; WESTINGHOUSE ELEC.  CORP. 
V. UNITED ELEC.  RADIO & MACH. WORKERS, 92 F. SUPP. 841, AFF'D WITHOUT
DISCUSSION, 194 F.2D 770; CHERICO V. BROTHERHOOD OF R.R. TRAINMEN, 167
F. SUPP.  635, 637-638; CF. HADDEN V. SMALL, 145 F. SUPP. 387
(PARTNERSHIP).  CASES HOLDING THAT UNINCORPORATED ASSOCIATIONS MAY BE
SUED WHERE THEY DO BUSINESS:  PORTSMOUTH BASEBALL CORP. V. FRICK, 132
F. SUPP. 922; EASTERN MOTOR EXPRESS V. ESPENSHADE, 138 F. SUPP.  426,
432; AMERICAN AIRLINES, INC. V. AIR LINE PILOTS ASSN., 169 F. SUPP.
777, 781-783; R&E DENTAL SUPPLY CO. V. RITTER CO., 185 F. SUPP. 812;
CF. JOSCAR CO. V. CONSOLIDATED SUN RAY, INC., 212 F. SUPP. 634. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS, AND MR. JUSTICE
FORTAS JOIN, DISSENTING. 

THIS SUIT FOR DAMAGES CAUSED BY AN ILLEGAL STRIKE WAS BROUGHT BY THE
DENVER AND RIO GRANDE WESTERN RAILROAD AGAINST THE BROTHERHOOD OF
RAILROAD TRAINMEN AND CERTAIN OF ITS INDIVIDUAL MEMBERS IN THE UNITED
STATES DISTRICT COURT OF COLORADO WHERE THE BROTHERHOOD'S LOCAL LODGES
WENT ON STRIKE.  THE BROTHERHOOD, AN UNINCORPORATED ASSOCIATION WITH
ITS HEADQUARTERS AND PRINCIPAL PLACE OF BUSINESS IN CLEVELAND, OHIO,
FILED A MOTION TO DISMISS ON THE GROUND OF IMPROPER VENUE.  THE
DISTRICT COURT DENIED THIS MOTION, AND AFTER A TRIAL WITHOUT A JURY
GAVE THE RAILROAD A $37,988 JUDGMENT AGAINST THE UNION.  THE COURT OF
APPEALS REVERSED.  367 F.2D 137.  IT HELD THAT THE APPLICABLE VENUE
STATUTE, 28 U.S.C. SEC. 1391(B), (FN1) GAVE VENUE ONLY TO THE DISTRICT
COURT FOR THE DISTRICT WHERE THE UNION'S PRINCIPAL PLACE OF BUSINESS IS
LOCATED.  I WOULD AFFIRM THIS HOLDING. 

IN HOLDING VENUE IMPROPER AS TO THE UNION, THE COURT OF APPEALS
REJECTED THE HOLDING OF THE SECOND CIRCUIT IN RUTLAND R. CO. V.
BROTHERHOOD OF LOCOMOTIVE ENG'RS, 307 F.2D 21, CERT. DENIED, 372 U.S.
954, THAT A UNION MAY BE SUED UNDER SEC. 1391(B) IN ANY DISTRICT WHERE
IT IS DOING BUSINESS.  THE SECOND CIRCUIT IN RUTLAND RECOGNIZED THAT
PRIOR TO THE JUDICIAL CODE OF 1948, UNDER THE PREDECESSOR OF SEC.
1391(B), (FN2) MOST COURTS HAD HELD THAT AN UNINCORPORATED ASSOCIATION
IS SUABLE ONLY AT ITS PRINCIPAL PLACE OF BUSINESS AND THAT THE ONLY
EXPRESS CHANGE MADE IN PRE-EXISTING GENERAL VENUE LAW BY THE 1948 CODE
WAS THE EXPANSION OF CORPORATE VENUE FROM THE PLACE OF INCORPORATION TO
THE PLACE OF DOING BUSINESS, SEC. 1391(C).  (FN3)  NEVERTHELESS, THE
COURT REASONED THAT THERE ARE SOUND POLICIES FOR TREATING
UNINCORPORATED ASSOCIATIONS LIKE CORPORATIONS AND THAT, THOUGH THE
LANGUAGE OF SEC. 1391(C) EXPRESSLY APPLIES TO CORPORATIONS AND NOT TO
UNINCORPORATED ASSOCIATIONS, CONGRESS IMPLICITLY INTENDED FOR THE
EXPANDED CONCEPTS OF CORPORATE RESIDENCE UNDER SEC. 1391(C) TO BE
APPLIED IN DETERMINING THE RESIDENCE OF AN UNINCORPORATED ASSOCIATION
UNDER SEC. 1391(B). 

FOR MYSELF I CANNOT DRAW ANY SUCH INFERENCE FROM THE 1948 AMENDMENTS
TO THE GENERAL VENUE STATUTE.   SECTIONS 1391(B) AND (C) WERE PART OF A
GENERAL CODE REVISION DESIGNED COMPREHENSIVELY TO COVER THE RULES OF
PROCEDURE, INCLUDING VENUE, AND THERE IS NO REFERENCE WHATEVER IN THESE
WOULD PERMIT US TO INFER THAT CONGRESS INTENDED THAT UNINCORPORATED
ASSOCIATIONS BE TREATED AS CORPORATIONS FOR VENUE PURPOSES, THUS
CHANGING THE JUDICIALLY ESTABLISHED RULE THAT UNINCORPORTED
ASSOCIATIONS ARE SUABLE ONLY AT THEIR PRINCIPAL PLACE OF BUSINESS. 
THOUGH THIS COURT RECOGNIZES THAT "CONGRESS HAS MAINTAINED ITS SILENCE
...  WITH RESPECT TO THE RESIDENCE OF THE UNINCORPORATED ASSOCIATION,"
IT APPROVES THE RUTLAND HOLDING BECAUSE "SOUND POLICY CONSIDERATIONS"
INDICATE IT "MOST NEARLY APPROXIMATES THE INTENT OF CONGRESS."  IN
REACHING THIS RESULT, THE COURT ADOPTS THE RUTLAND REASONING THAT
CONGRESS IN 1948 MUST HAVE APPROVED OF ASSIMILATING FOR VENUE PURPOSES
THE TREATMENT OF UNINCORPORATED ASSOCIATIONS TO THAT OF CORPORATIONS,
BECAUSE SUCH A PROCESS OF ASSIMILATION HAD BEEN ADVOCATED BY JUDGE
LEARNED HAND IN SPERRY PRODS., INC. V. ASSOCIATION OF AMERICAN
RAILROADS, 132 F.2D 408, CERT. DENIED, 319 U.S. 744.  THE NARROW ISSUE
DEALT WITH IN SPERRY WAS WHERE, UNDER THE SPECIAL VENUE PROVISIONS FOR
A PATENT INFRINGMENT SUIT, (FN4) IS AN UNINCORPORATED ASSOCIATION
DEEMED TO BE AN "INHABITANT."  THE SPERRY COURT FIRST HELD THAT, SINCE
AN UNINCORPORATED ASSOCIATION CAN BE SUED IN ITS OWN NAME TO ENFORCE A
FEDERAL RIGHT, UNITED MINE WORKERS V. CORONADO CO, 259 U.S. 344, AND
SINCE IT CAN BE SERVED WITH PROCESS UNDER FED. RULE CIV. PROC. 17(B),
IT SHOULD, FOR VENUE PURPOSES, BE TREATED AS A SINGLE INDIVIDUAL, NOT
AN AGGREGATE OF INDIVIDUALS.  (FN5)  THE SPERRY COURT THEN HELD THAT
FOR PURPOSES OF THE SPECIAL PATENT VENUE PROVISION AN UNINCORPORATED
ASSOCIATION IS AN "INHABITANT" OF THE DISTRICT WHERE ITS PRINCIPAL
PLACE OF BUSINESS IS LOCATED - PRECISELY WHAT THE COURT OF APPEALS HELD
HERE AS TO SEC. 1391(B).  IN REACHING THIS RESULT, JUDGE HAND ADVANCED
LEGISLATIVE POLICY REASONS, SIMILAR TO THOSE ADVANCED BY THE COURT HERE
TODAY, FOR TREATING AN UNINCORPORATED ASSOCIATION LIKE A CORPORATION,
THEN DEEMED TO BE AN INHABITANT ONLY OF ITS STATE OF INCORPORATION AND
OF THE DISTRICT WITHIN THAT STATE WHERE ITS PRINCIPAL PLACE OF BUSINESS
WAS LOCATED.  IT IS JUDGE HAND'S PROCESS OF REASONING, NOT HIS HOLDING,
THAT THE COURT USES IN ASSIMILATING THE TREATMENT OF UNINCORPORATED
ASSOCIATIONS UNDER SEC. 1391(B) TO THE TREATMENT OF CORPORATIONS UNDER
SEC. 1391(C). 

I FIND MANY OBJECTIONS TO DOING WHAT THE COURT DOES HERE.  FIRST,
EVEN ASSUMING THAT IN ENACTING SEC. 1391 CONGRESS WAS AWARE OF THE
SPERRY DECISION AND THOUGHT IT APPLICABLE TO GENERAL, AS DISTINGUISHED
FROM PATENT, VENUE RULES (FN6) (AN ASSUMPTION I THINK COMPLETELY
UNFOUNDED), IT IS DOUBTFUL THAT CONGRESS, WITHOUT SAYING SO, INTENDED
TO REJECT THE HOLDING OF THAT CASE - THAT AN UNINCORPORATED ASSOCIATION
IS SUABLE AT ITS PRINCIPAL PLACE OF BUSINESS - BUT AT THE SAME TIME
ADOPT ITS REASONING - DICTA TO THE EFFECT THAT AN UNINCORPORATED
ASSOCIATION SHOULD BE TREATED LIKE A CORPORATION.  SECOND, THE ONLY
INDICATION I CAN FIND OF WHAT CONGRESS INTENDED IN 1948 AS TO
UNINCORPORATED ASSOCIATIONS COMES FROM PROFESSOR MOORE, WHO
PARTICIPATED IN DRAFTING THE CODE AND WHO IN 1949 WROTE: 

"SPERRY PRODUCTS, INC. V. ASSOCIATION OF AMERICAN RAILROADS TOOK THE
POSITION THAT AN UNINCORPORATED ASSOCIATION IS AN 'INHABITANT,' I.E.,
RESIDENT, OF THE DISTRICT WHERE IT HAS ITS PRINCIPAL PLACE OF
BUSINESS.  AND THIS DOCTRINE HAS BEEN APPLIED TO A PARTNERSHIP  ...  .
THE CODE HAS CHANGED NONE OF THESE DOCTRINES."  (FN7) 

THIRD, CONGRESS IN 1948 WAS CLEARLY AWARE OF THE VENUE PROBLEMS
INVOLVED IN SUING AN UNINCORPORATED ASSOCIATION.  JUST THE YEAR BEFORE,
IN 1947, IT HAD EXPRESSLY CONSIDERED THESE PROBLEMS IN RELATION TO
SUITS AGAINST LABOR UNIONS TO ENFORCE COLLECTIVE BARGAINING AGREEMENTS
(FN8) AND IN SEC. 301(C) OF THE LABOR MANAGEMENT RELATIONS ACT, 1947,
61 STAT.  157, 29 U.S.C. SEC. 185(C), EXPLICITLY PROVIDED FOR VENUE IN
SUCH SUITS "(1) IN THE DISTRICT IN WHICH SUCH ORGANIZATION MAINTAINS
ITS PRINCIPAL OFFICE, OR (2) IN ANY DISTRICT IN WHICH ITS DULY
AUTHORIZED OFFICERS OR AGENTS ARE ENGAGED IN REPRESENTING OR ACTING FOR
EMPLOYEE MEMBERS."  THAT ACTION IS WHOLLY CONSISTENT WITH THE IDEA THAT
CONGRESS' TOTAL FAILURE IN 1948 TO PROVIDE A SIMILAR VENUE RULE
APPLICABLE TO OTHER KINDS OF SUITS AGAINST A UNION WAS NEITHER
INADVERTENT NOR MEANT TO BE CURED BY JUDICIAL IMPLICATION.  WHETHER
THERE IS "LITTLE" OR MUCH "MERIT" IN HOLDING THAT VENUE OF A UNION
SUBJECT TO THE RAILWAY LABOR ACT, 44 STAT. 577, AS AMENDED, IS
DIFFERENT FROM THE VENUE OF A UNION UNDER THE EXPRESS VENUE PROVISIONS
OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, AS AMENDED, IS A
QUESTION FOR CONGRESS, NOT THIS COURT.  FINALLY, SINCE 1948 THE LOWER
COURTS HAVE BEEN COMPLETELY DIVIDED ON THE QUESTION OF WHETHER AN
UNINCORPORATED ASSOCIATION CAN BE SUED AT A PLACE OTHER THAN ITS
PRINCIPAL PLACE OF BUSINESS.  (FN9)  IN THE LIGHT OF ALL THESE THINGS,
I CANNOT IMPUTE TO CONGRESS AN UNARTICULATED INTENT TO MAKE AN
UNINCORPORATED ASSOCIATION'S VENUE PRECISELY THE SAME AS THAT OF A
CORPORATION. 

NEITHER THE LANGUAGE AND HISTORY OF THE GENERAL VENUE STATUTE NOR ANY
PRIOR DECISION OF THIS COURT THROWS ANY LIGHT ON THE QUESTION PRESENTED
HERE.  IN THE FINAL ANALYSIS IT IS SIMPLY AN IMPORTANT QUESTION OF
PUBLIC POLICY.  REASONS CAN LOGICALLY BE ADVANCED FOR EXPANDING THE
VENUE OF UNINCORPORATED ASSOCIATIONS TO INCLUDE DISTRICTS WHERE THEY
ENGAGE IN BUSINESS, BUT JUST AS STRONG REASONS CAN BE ADVANCED FOR NOT
DOING SO.  THOUGH VENUE, RELATING TO THE CONVENIENCE OF THE LITIGANTS,
IS QUITE DIFFERENT FROM JURISDICTION, RELATING TO THE POWER OF A COURT
TO ADJUDICATE, NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165, 167-168,
AND THOUGH CONGRESS MAY HAVE MORE CONSTITUTIONAL LEEWAY TO DEAL WITH
VENUE THAN WITH JURISDICTION.  STEELWORKERS V. BOULIGNY, INC., 382 U.S.
145, VENUE RULES NEVERTHELESS POSE POLICY CONSIDERATIONS WHICH ARE AND
SHOULD BE WEIGHED BY CONGRESS AND NOT BY THIS COURT.  AS WE SAID IN
OLBERDING V. ILLINOIS CENTRAL R. CO., 346 U.S. 338, 340:  "THE
REQUIREMENT OF VENUE IS SPECIFIC AND UNAMBIGUOUS; IT IS NOT ONE OF
THOSE VAGUE PRINCIPLES WHICH, IN THE INTEREST OF SOME OVERRIDING
POLICY, IS TO BE GIVEN A 'LIBERAL' CONSTRUCTION."  I THINK THE COURT
OVERSTEPS ITS BOUNDARIES IN DOING THAT WHICH CONGRESS DID NOT CHOOSE TO
DO IN EXPANDING THE VENUE PROVISIONS WITH REFERENCE TO CORPORATIONS.  I
WOULD LEAVE THE LAW OF VENUE AS IT IS UNTIL CONGRESS DECIDES ITS OWN
POLICY.  (FN10) 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  28 U.S.C. SEC. 1391(B): 

"A CIVIL ACTION WHEREIN JURISDICTION IS NOT FOUNDED SOLELY ON
DIVERSITY OF CITIZENSHIP MAY BE BROUGHT ONLY IN THE JUDICIAL DISTRICT
WHERE ALL DEFENDANTS RESIDE, EXCEPT AS OTHERWISE PROVIDED BY LAW." 

FN2  36 STAT. 1101, SEC. 51, 28 U.S.C. SEC. 112 (1940 ED.), PROVIDED
THAT "NO CIVIL SUIT SHALL BE BROUGHT IN ANY DISTRICT COURT AGAINST ANY
PERSON  ...  IN ANY OTHER DISTRICT THAN THAT WHEREOF HE IS AN
INHABITANT  ...  ." 

FN3  28 U.S.C. SEC. 1391(C): 

"A CORPORATION MAY BE SUED IN ANY JUDICIAL DISTRICT IN WHICH IT IS
INCORPORATED OR LICENSED TO DO BUSINESS OR IS DOING BUSINESS, AND SUCH
JUDICIAL DISTRICT SHALL BE REGARDED AS THE RESIDENCE OF SUCH
CORPORATION FOR VENUE PURPOSES." 

FN4  36 STAT. 1100, SEC. 48, 28 U.S.C. SEC. 109 (1940 ED.), PROVIDED
THAT SUITS FOR PATENT INFRINGEMENT MUST BE BROUGHT "IN THE DISTRICT OF
WHICH THE DEFENDANT IS AN INHABITANT, OR IN ANY DISTRICT IN WHICH THE
DEFENDANT  ...  SHALL HAVE COMMITTED ACTS OF INFRINGEMENT AND HAVE A
REGULAR AND ESTABLISHED PLACE OF BUSINESS." 

FN5  NONE OF THE PARTIES HERE HAVE SUGGESTED THAT AN UNINCORPORATED
ASSOCIATION'S RESIDENCE FOR VENUE PURPOSES DEPENDS ON THE RESIDENCE OF
EACH INDIVIDUAL MEMBER, AND I AGREE WITH THE COURT'S HOLDING THAT AN
UNINCORPORATED ASSOCIATION LIKE A UNION IS A SINGLE ENTITY WITH A
RESIDENCE.  THE ONLY PROBLEM HERE IS TO LOCATE THAT RESIDENCE. 

FN6  AFTER SPERRY THE LOWER COURTS DIVIDED ON WHETHER ITS HOLDING
SHOULD BE EXTENDED TO THE PRE-1948 GENERAL VENUE PROVISION (SEE N. 3,
SUPRA).  COMPARE BROTHERHOOD OF LOCOMOTIVE FIREMEN V. GRAHAM, 84 U.S.
APP. D.C. 67, 175 F.2D 802, REV'D ON OTHER GROUNDS, 338 U.S. 232, AND
GRIFFIN V. ILLINOIS CENT. R. CO., 88 F. SUPP. 552, 555, WITH THERMOID
CO. V. UNITED RUBBER WORKERS, 70 F. SUPP. 228, 233-234. 

FN7  MOORE, COMMENTARY ON THE U.S. JUDICIAL CODE 193 (1949).  NOW,
HOWEVER, FOR LEGISLATIVE POLICY REASONS SUCH AS THE PROTECTION FROM
ABUSE CONTAINED IN THE TRANSFER PROVISION OF 28 U.S.C. SEC. 1404(A) AND
THE MULTI-STATE NATURE OF UNINCORPORATED ASSOCIATIONS' ACTIVITIES,
PROFESSOR MOORE BELIEVES THE POSITION TAKEN IN RUTLAND "DESIRABLE."  1
MOORE, FEDERAL PRACTICE PARA 0.142 (5.-4), AT 1508.  SEE ALSO COMMENT,
44 CALIF. L. REV. 130 (1956); NOTE, 39 ST. JOHN'S L. REV. 353, 358-360
(1965); NOTE, 13 OKLA. L. REV. 206 (1960); 45 GEO. L. REV. 132 (1956). 
BUT SEE KAPLAN, SUITS AGAINST UNINCORPORATED ASSOCIATIONS UNDER THE
FEDERAL RULES OF CIVIL PROCEDURE, 53 MICH. L. REV. 945, 949-950 (1955);
COMMENT, 8 STAN.  L. REV. 708 (1956). 

FN8  H.R. REP. NO 245, 80TH CONG., 1ST SESS., 108-109 (1947); S. REP.
NO. 105, 80TH CONG., 1ST SESS., 15-18 (1947). 

FN9  CASES HOLDING AN UNINCORPORATED ASSOCIATION MAY BE SUED ONLY AT
ITS PRINCIPAL PLACE OF BUSINESS:  BROTHERHOOD OF LOCOMOTIVE FIREMEN V.
GRAHAM, SUPRA, AT 69, N. 2, 175 F.2D, AT 804; MCNUTT V. UNITED GAS,
COKE & CHEM.  WORKERS, 108 F. SUPP. 871, 875; SALVANT V. LOUISVILLE &
N.R. CO., 83 F. SUPP. 391, 396; WESTINGHOUSE ELEC.  CORP.  V. UNITED
ELEC.  RADIO & MACH. WORKERS, 92 F. SUPP. 841, 842, AFF'D WITHOUT
DISCUSSION, 194 F.2D 770; CHERICO V. BROTHERHOOD OF R.R. TRAINMEN, 167
F. SUPP. 635, 637-638; CF. HADDEN V. SMALL, 145 F. SUPP. 387
(PARTNERSHIP).  CASES HOLDING THAT AN UNINCORPORATED ASSOCIATION MAY BE
SUED WHERE IT DOES BUSINESS.  PORTSMOUTH BASEBALL CORP. V. FRICK, 132
F. SUPP. 922; EASTERN MOTOR EXPRESS V. ESPENSHADE, 138 F. SUPP. 426,
432; AMERICAN AIRLINES, INC. V. AIR LINE PILOTS ASSN., 169 F. SUPP.
777, 781-783; R&E DENTAL SUPPLY CO. V. RITTER CO., 185 F. SUPP. 812;
CF. JOSCAR CO. V. CONSOLIDATED SUN RAY, INC., 212 F. SUPP. 634. 

FN10  SINCE I AGREE WITH THE COURT THAT THE 1966 AMENDMENT OF SEC.
1391(B) SHOULD APPLY TO PENDING CASES SUCH AS THIS ONE, I WOULD NOT
HAVE FILED THIS DISSENT HAD THE COURT REMANDED THIS CASE SOLELY FOR A
DETERMINATION OF THE PROPRIETY OF VENUE UNDER THE 1966 AMENDMENT. 
..END :























ELLIOTT V. OREGON 387 U.S. 571 


NO. 1144, MISC.  DECIDED JUNE 5, 1967 - CERTIORARI GRANTED; 244 ORE. 
426, 418 P.2D 263, VACATED AND REMANDED. 


ELLIOTT V. OREGON. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF OREGON FOR FURTHER
CONSIDERATION IN LIGHT OF ANDERS V. CALIFORNIA, 386 U.S. 738. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
CERTIORARI SHOULD BE DENIED. 
..END :












CLARK V. ALABAMA 387 U.S. 571 


NO. 1579, MISC.  DECIDED JUNE 5, 1967 - 280 ALA. 493, 195 SO. 2D 786,
APPEAL DISMISSED AND CERTIORARI DENIED. 


CLARK V. ALABAMA. 

APPEAL FROM THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















IMMIGRATION SERVICE V. LAVOIE 387 U.S. 572 


NO. 513.  DECIDED JUNE 5, 1967* - CERTIORARI GRANTED; 360 F.2D 27,
VACATED AND REMANDED. 

*REPORTER'S NOTE:  THIS OPINION IS REPORTED AS AMENDED BY ORDER OF
THE COURT ENTERED OCTOBER 16, 1967, 389 U.S. 908. 


IMMIGRATION AND NATURALIZATION SERVICE V. LAVOIE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
VACATED.  BOUTILIER V. IMMIGRATION AND NATURALIZATION SERVICE, ANTE, P.
118.  THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT IN ORDER THAT THAT COURT MAY PASS UPON THE ISSUES IN
THIS CASE NOT COVERED BY ITS PRIOR OPINION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT CERTIORARI SHOULD BE
DENIED. 
..END :







ALUMINUM CO. V. UNITED STATES 387 U.S. 573 


NO. 1159.  DECIDED JUNE 5, 1967 - 263 F. SUPP. 480, AFFIRMED. 


ALUMINUM CO. OF AMERICA ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF ARKANSAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















GILLS V. CALIFORNIA 387 U.S. 574 


NO. 1043, MISC.  DECIDED JUNE 5, 1967 - CERTIORARI GRANTED; VACATED AND
REMANDED. 


GILLS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE
DISTRICT, FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V. CALIFORNIA,
385 U.S. 18. 
..END :













CAMODEO V. UNITED STATES 387 U.S. 575 


NO. 1073, MISC.  DECIDED JUNE 5, 1967 - CERTIORARI GRANTED; 367 F.2D
146, VACATED AND REMANDED. 


CAMODEO V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF ANDERS V. CALIFORNIA, 386
U.S. 738. 

MR. JUSTICE HARLAN, MR. JUSTICE STEWART, AND MR. JUSTICE WHITE ARE OF
THE OPINION THAT CERTIORARI SHOULD BE DENIED. 
..END :










FEDERAL TRADE COMMISSION V. UNIVERSAL-RUNDLE 387 U.S. 244 


NO. 101.  ARGUED MARCH 13, 1967.  - DECIDED MAY 29, 1967.  - 352 F.2D
831, REVERSED AND REMANDED. 


AFTER HEARINGS ON A COMPLAINT CHARGING RESPONDENT WITH VIOLATIONS OF
THE PRICE DISCRIMINATION PROVISIONS OF THE CLAYTON ACT, SEC 2(A) AS
AMENDED, THE FEDERAL TRADE COMMISSION (FTC) FOUND THAT THE 10%
TRUCKLOAD DISCOUNTS OFFERED BY RESPONDENT ON ITS LINE OF PLUMBING
FIXTURES HAD A PROSCRIBED ANTICOMPETITIVE EFFECT SINCE SOME CUSTOMERS
WHO WERE UNABLE TO PURCHASE IN TRUCKLOAD QUANTITIES WERE IN COMPETITION
WITH CUSTOMERS ABLE TO TAKE ADVANTAGE OF THE DISCOUNT.  ACCORDINGLY,
THE COMMISSION ISSUED A CEASE-AND-DESIST ORDER PROHIBITING RESPONDENT
FROM DISCRIMINATING IN PRICE BETWEEN COMPETING CUSTOMERS.  THEREAFTER,
RESPONDENT PETITIONED THE COMMISSION FOR A STAY OF THE ORDER PENDING
INVESTIGATION OF ALLEGED INDUSTRY-WIDE DISCOUNT PRACTICES, CLAIMING
THAT ENFORCEMENT AGAINST IT ALONE WOULD CAUSE IT SUBSTANTIAL FINANCIAL
INJURY.  THE FTC DENIED THE PETITION.  ON PETITION FOR REVIEW, THE
COURT OF APPEALS SET ASIDE THE DENIAL AND REMANDED THE CAUSE FOR THE
INDUSTRY INVESTIGATION SOUGHT BY RESPONDENT.  HELD:  SINCE THE
COMMISSION'S REFUSAL TO WITHHOLD ENFORCEMENT OF THE CEASE-AND-DESIST
ORDER DID NOT CONSTITUTE A PATENT ABUSE OF DISCRETION, THE COURT OF
APPEALS EXCEEDED ITS AUTHORITY BY SETTING ASIDE THE COMMISSION'S DENIAL
OF THE PETITION FOR A STAY.  MOOG INDUSTRIES V. FEDERAL TRADE
COMMISSION, 355 U.S. 411 (1958), FOLLOWED.  PP. 249-252. 

FEDERAL TRADE COMMISSION V. UNIVERSAL-RUNDLE CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE COURT OF APPEALS
EXCEEDED ITS AUTHORITY AS A REVIEWING COURT BY POSTPONING THE OPERATION
OF A FEDERAL TRADE COMMISSION CEASE-AND-DESIST ORDER AGAINST RESPONDENT
UNTIL AN INVESTIGATION SHOULD BE MADE OF ALLEGED INDUSTRY-WIDE
VIOLATIONS OF THE PRICE DISCRIMINATION PROVISIONS OF THE CLAYTON ACT,
SEC 2, 38 STAT. 730, AS AMENDED BY THE ROBINSON-PATMAN ACT, 49 STAT.
1526, 15 U.S.C. SEC 13. 

RESPONDENT UNIVERSAL-RUNDLE PRODUCES A FULL LINE OF CHINA AND CAST
IRON PLUMBING FIXTURES WHICH IT SELLS TO CUSTOMERS LOCATED THROUGHOUT
THE UNITED STATES.  IN 1960, THE FEDERAL TRADE COMMISSION ISSUED A
COMPLAINT CHARGING THAT FOR MORE THAN THREE YEARS UNIVERSAL-RUNDLE'S
SALES TO SOME OF THESE CUSTOMERS HAD BEEN MADE "AT SUBSTANTIALLY HIGHER
PRICES THAN THE PRICES AT WHICH RESPONDENT SELLS SUCH PRODUCTS OF LIKE
GRADE AND QUALITY TO OTHER PURCHASERS, SOME OF WHOM ARE ENGAGED IN
COMPETITION WITH THE LESS FAVORED PURCHASERS IN THE RESALE OF SUCH
PRODUCTS."   THE EFFECT OF THE DISCRIMINATIONS, THE COMPLAINT ALLEGED,
"MAY BE SUBSTANTIALLY TO LESSEN COMPETITION" IN VIOLATION OF SEC 2(A)
OF THE CLAYTON ACT, AS AMENDED.  IN ITS ANSWER, UNIVERSAL-RUNDLE DENIED
THE ESSENTIAL ALLEGATIONS OF THE COMPLAINT, AND, IN ADDITION, ASSERTED
AS AFFIRMATIVE DEFENSES THAT SUCH PRICE DIFFERENTIALS AS MAY HAVE
EXISTED WERE COST JUSTIFIED OR WERE MADE "IN GOOD FAITH TO MEET
COMPETITION." 

AFTER EVIDENTIARY HEARINGS, IN WHICH UNIVERSAL-RUNDLE MADE NO EFFORT
TO SUSTAIN ITS AFFIRMATIVE DEFENSES, THE COMMISSION FOUND THAT DURING
1957 UNIVERSAL-RUNDLE HAD OFFERED "TRUCKLOAD DISCOUNTS" AVERAGING
APPROXIMATELY 10% TO ALL OF ITS CUSTOMERS.  BECAUSE SOME OF THESE
CUSTOMERS COULD NOT AFFORD TO PURCHASE IN TRUCKLOAD QUANTITIES, AND
THUS WERE UNABLE TO AVAIL THEMSELVES OF THE DISCOUNTS, THE COMMISSION
HELD THAT THE OFFERING OF THE TRUCKLOAD DISCOUNTS CONSTITUTED PRICE
DISCRIMINATION WITHIN THE MEANING OF SEC 2(A) OF THE CLAYTON ACT, AS
AMENDED.  SINCE SOME UNIVERSAL-RUNDLE CUSTOMERS WHO WERE ABLE TO
PURCHASE IN TRUCKLOAD QUANTITIES WERE FOUND TO BE IN COMPETITION WITH
CUSTOMERS UNABLE TO TAKE ADVANTAGE OF THE DISCOUNTS, THE COMMISSION
CONCLUDED THAT UNIVERSAL-RUNDLE'S PRICE DISCRIMINATION HAD THE
ANTICOMPETITIVE EFFECT PROSCRIBED BY SEC 2(A).  (FN1)  ACCORDINGLY, IT
ORDERED UNIVERSAL-RUNDLE TO REFRAIN FROM: 

"DISCRIMINATING IN PRICE BY SELLING 'UNIVERSAL-RUNDLE' BRAND OR
UNIVERSAL-RUNDLE MANUFACTURED PLUMBING FIXTURES  ...  OF LIKE GRADE AND
QUALITY TO ANY PURCHASER AT PRICES HIGHER THAN THOSE GRANTED ANY OTHER
PURCHASER, WHERE SUCH OTHER PURCHASER COMPETES IN FACT WITH THE
UNFAVORED PURCHASER IN THE RESALE OR DISTRIBUTION OF SUCH PRODUCTS." 

AT NO TIME DURING THE FOUR YEARS IN WHICH THE COMPLAINT WAS PENDING
DID UNIVERSAL-RUNDLE OFFER THE COMMISSION ANY INFORMATION AS TO ITS
COMPETITORS' PRICING PRACTICES OR SUGGEST THAT INDUSTRY-WIDE
PROCEEDINGS MIGHT BE APPROPRIATE.  BUT ONE MONTH AFTER THE ISSUANCE OF
THE CEASE-AND-DESIST ORDER, UNIVERSAL-RUNDLE PETITIONED THE COMMISSION
TO STAY ITS CEASE-AND-DESIST ORDER FOR A TIME SUFFICIENT "TO
INVESTIGATE AND INSTITUTE WHATEVER PROCEEDINGS ARE DEEMED APPROPRIATE
BY THE COMMISSION TO CORRECT THE INDUSTRY-WIDE PRACTICE BY PLUMBING
FIXTURE MANUFACTURERS OF GRANTING DISCOUNTS IN PRICES ON TRUCKLOAD
SHIPMENTS."  IN SUPPORT OF ITS PETITION, UNIVERSAL-RUNDLE SUBMITTED
AFFIDAVITS AND DOCUMENTS TENDING TO SHOW:  (1) THAT ITS PRINCIPAL
COMPETITORS WERE OFFERING TRUCKLOAD DISCOUNTS AVERAGING APPROXIMATELY
18%; (2) THAT UNIVERSAL-RUNDLE'S SHARE OF THE PLUMBING FIXTURE MARKET,
EXCLUSIVE OF ITS SALES TO SEARS, ROEBUCK AND CO., WAS 5.75% WHEREAS THE
FIVE LEADING PLUMBING MANUFACTURING CONCERNS ENJOYED MARKET SHARES OF 6
TO 32%; (FN2)  AND (3) THAT EACH OF THESE FIVE COMPETITORS HAD REPORTED
PROFITS WITHIN THE PRECEDING TWO YEARS WHEREAS UNIVERSAL-RUNDLE HAD
SUSTAINED SUBSTANTIAL LOSSES DURING EACH OF THE PRECEDING THREE YEARS. 
IN ADDITION, UNIVERSAL-RUNDLE SUBMITTED AN AFFIDAVIT IN WHICH ITS
MARKETING VICE PRESIDENT DECLARED ON INFORMATION AND BELIEF THAT SOME
OF UNIVERSAL-RUNDLE'S COMPETITORS WERE SELLING TO CUSTOMERS WHO "MAY
NOT PURCHASE IN TRUCKLOAD QUANTITIES."  THE VICE PRESIDENT FURTHER
AVERRED: 

"THAT BASED UPON HIS KNOWLEDGE OF THE COMPETITIVE CONDITIONS IN THIS
INDUSTRY, IF RESPONDENT IS NOT PERMITTED TO SELL PLUMBING FIXTURES WITH
A DIFFERENTIAL IN PRICE AS ARE ITS COMPETITORS ON TRUCKLOAD AND LESS
THAN TRUCKLOAD QUANTITIES, RESPONDENT'S SALES OF PLUMBING FIXTURES
UNDER THE 'U/R' BRAND WILL BE SUBSTANTIALLY DECREASED AND LOST TO ITS
COMPETITORS, WHO CONTINUE TO OFFER SUBSTANTIAL DISCOUNTS ON TRUCKLOAD
SHIPMENTS.  AND HE IS OF THE FURTHER BELIEF THAT THE COMPANY MAY SUFFER
FURTHER SUBSTANTIAL FINANCIAL LOSSES IF IT MUST BE THE SOLE PLUMBING
FIXTURE MANUFACTURER UNDER AN ORDER TO CEASE AND DESIST." 

IN A UNANIMOUS DECISION DENYING THE PETITION FOR THE STAY, THE
COMMISSION HELD THAT A GENERAL ALLEGATION THAT COMPETITORS WERE
OFFERING TRUCKLOAD DISCOUNTS WAS NOT A SUFFICIENT BASIS FOR INSTITUTING
INDUSTRY-WIDE PROCEEDINGS OR FOR WITHHOLDING ENFORCEMENT OF THE CEASE
AND-DESIST ORDER.  NOTING THAT RESPONDENT'S PETITION APPEARED TO BE
PREMISED ON THE CONTENTION THAT TRUCKLOAD DISCOUNTS HAD BEEN HELD TO BE
PER SE ILLEGAL, THE COMMISSION WROTE, "THERE IS NOTHING IN OUR DECISION
TO SUPPORT THIS CONTENTION,  ...  NOR DOES THE ORDER TO CEASE AND
DESIST ENTERED AGAINST RESPONDENT ABSOLUTELY PROHIBIT IT FROM GRANTING
TRUCKLOAD DISCOUNTS."  WHILE THE GRANTING OF SUCH DISCOUNTS MAY RESULT
IN PRICE DISCRIMINATIONS HAVING PROSCRIBED ANTICOMPETITIVE EFFECTS,
"THE PRACTICE IS NOT NECESSARILY ILLEGAL AS INDICATED IN RESPONDENT'S
PETITION."  IN EACH CASE, IT MUST BE DETERMINED: 

"WHETHER THE DISCOUNT CREATES A PRICE DIFFERENCE, WHETHER THE
RECIPIENT OF SUCH A DISCOUNT IS COMPETING AT THE SAME FUNCTIONAL LEVEL
WITH A CUSTOMER PAYING A HIGHER PRICE, WHETHER THE CUSTOMER BUYING IN
LESS THAN TRUCKLOAD QUANTITIES IS ABLE TO AVAIL ITSELF OF THE TRUCKLOAD
DISCOUNT, AND WHETHER THE DIFFERENTIAL IS SUFFICIENT IN THE COMPETITIVE
CONDITIONS SHOWN TO EXIST TO HAVE THE REQUISITE ANTICOMPETITIVE
EFFECTS."  (FN3) 

"MOREOVER," THE COMMISSION WROTE, "THE FACT THAT RESPONDENT MAY HAVE
INCURRED LOSSES PRIOR TO THE ISSUANCE OF THE ORDER DOES NOT SUPPORT THE
CONTENTION THAT ENFORCEMENT OF THE ORDER WILL CAUSE IT FINANCIAL
HARDSHIP."  (FN4) 

FOLLOWING DENIAL OF ITS PETITION FOR A STAY, UNIVERSAL-RUNDLE
INSTITUTED REVIEW PROCEEDINGS IN THE COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.  WITHOUT REACHING THE MERITS OF THE PETITION TO SET ASIDE THE
CEASE-AND-DESIST ORDER, THE COURT BELOW SET ASIDE THE COMMISSION'S
ORDER DENYING THE STAY AND REMANDED THE CAUSE WITH INSTRUCTIONS THAT
THE COMMISSION CONDUCT AN INDUSTRY INVESTIGATION.  352 F.2D 831
(1965).  THE COURT CONCEDED THAT UNDER MOOG INDUSTRIES V. FEDERAL TRADE
COMMISSION, 355 U.S. 411 (1958), THE FEDERAL TRADE COMMISSION'S
DISCRETIONARY DETERMINATION TO REFUSE TO STAY A CEASE-AND-DESIST ORDER
"SHOULD NOT BE OVERTURNED IN THE ABSENCE OF A PATENT ABUSE OF
DISCRETION."  355 U.S., AT 414.  BUT IT CONSIDERED THAT UNIVERSAL
RUNDLE'S EVIDENTIARY OFFERING WAS SUFFICIENT TO DEMONSTRATE THAT THE
REFUSAL TO GRANT THE REQUESTED STAY CONSTITUTED A PATENT ABUSE OF
DISCRETION.  THE PREMISES UPON WHICH THE COURT BELOW BASED ITS
CONCLUSION MAY BE BRIEFLY RESTATED:  (1) "IT IS APPARENT," THE COURT
WROTE WITH REFERENCE TO THE EVIDENTIARY OFFERING, "THAT THE COMMISSION
HAS DIRECTED ITS ATTACK AGAINST A GENERAL PRACTICE WHICH IS PREVALENT
IN THE INDUSTRY"; (2) ENFORCEMENT WOULD LEAD TO THE "SACRIFICE" OF ONE
OF THE "SMALLEST PARTICIPANTS" IN THE INDUSTRY; AND, CONSEQUENTLY, (3)
APPROVAL OF THE ENFORCEMENT SANCTIONS WOULD BE CONTRARY TO THE PURPOSES
OF THE CLAYTON ACT SINCE "THE GIANTS IN THE FIELD WOULD BE THE REAL
BENEFACTORS - NOT THE PUBLIC." 

IN MOOG INDUSTRIES V. FEDERAL TRADE COMMISSION, SUPRA, WE SET FORTH
THE PRINCIPLES WHICH MUST GOVERN OUR REVIEW OF THE ACTION TAKEN BY THE
COURT BELOW:  THE DECISION AS TO WHETHER TO POSTPONE ENFORCEMENT OF A
CEASE-AND-DESIST ORDER "DEPENDS ON A VARIETY OF FACTORS PECULIARLY
WITHIN THE EXPERT UNDERSTANDING OF THE COMMISSION."  355 U.S., AT 413. 
THUS, "ALTHOUGH AN ALLEGEDLY ILLEGAL PRACTICE MAY APPEAR TO BE
OPERATIVE THROUGHOUT AN INDUSTRY, WHETHER SUCH APPEARANCES REFLECT
FACT" IS A QUESTION "THAT CALLS FOR DISCRETIONARY DETERMINATION BY THE
ADMINISTRATIVE AGENCY."  IBID. BECAUSE THESE DETERMINATIONS REQUIRE THE
SPECIALIZED EXPERIENCED JUDGMENT OF THE COMMISSION, THEY CANNOT BE
OVERTURNED BY THE COURTS "IN THE ABSENCE OF A PATENT ABUSE OF
DISCRETION."  355 U.S., AT 414.  CONSEQUENTLY, THE REVIEWING COURT'S
INQUIRY IS NOT WHETHER THE EVIDENCE ADDUCED IN SUPPORT OF A PETITION
FOR A STAY TENDS TO ESTABLISH CERTAIN FACTS, SUCH AS THAT THE INDUSTRY
IS ENGAGED IN ALLEGEDLY ILLEGAL PRICE DISCRIMINATION PRACTICES; RATHER,
THE COURT'S REVIEW MUST BE LIMITED TO DETERMINING WHETHER THE
COMMISSION'S EVALUATION OF THE MERIT OF THE PETITION FOR A STAY WAS
PATENTLY ARBITRARY AND CAPRICIOUS. 

VIEWED IN THE LIGHT OF THESE PRINCIPLES, THE DECISION BELOW MUST BE
REVERSED.  THE EVIDENCE WHICH UNIVERSAL-RUNDLE OFFERED IN ITS PETITION
FOR A STAY IS SO INCONCLUSIVE THAT IT CANNOT BE SAID THAT THE
COMMISSION'S EVALUATION OF THE EVIDENCE, AND ITS CONSEQUENT REFUSAL TO
GRANT THE STAY, CONSTITUTED A PATENT ABUSE OF DISCRETION.  INDEED,
UNIVERSAL-RUNDLE'S EVIDENCE DOES NOT EVEN SUPPORT THE IMPROPER DE NOVO
FINDINGS WHICH FORMED THE BASIS FOR THE COURT OF APPEALS' DECISION. 
UNIVERSAL-RUNDLE'S TRUCKLOAD DISCOUNTS WERE HELD TO BE ILLEGAL ONLY
BECAUSE THE CORPORATION SOLD FIXTURES TO ONE GROUP OF CUSTOMERS WHO
WERE UNABLE TO PURCHASE IN TRUCKLOAD QUANTITIES WHILE SIMULTANEOUSLY
SELLING FIXTURES AT A DISCOUNT TO ANOTHER GROUP OF CUSTOMERS WHO WERE
IN COMPETITION WITH THE NONFAVORED GROUP.  SINCE THE EVIDENCE PRESENTED
IN THE PETITION FOR A STAY DID NOT TEND TO SHOW THAT THE DISCOUNTS
OFFERED BY UNIVERSAL-RUNDLE'S COMPETITORS HAD SUCH AN ANTICOMPETITIVE
EFFECT, THERE WAS NO BASIS FOR A CONCLUSION THAT THE PRACTICE HELD
ILLEGAL BY THE COMMISSION WAS PREVALENT THROUGHOUT THE PLUMBING
INDUSTRY.  SIMILARLY, THE UNSUPPORTED SPECULATION OF UNIVERSAL-RUNDLE'S
VICE PRESIDENT AS TO THE PECUNIARY EFFECT OF ENFORCEMENT OF THE CEASE
AND-DESIST ORDER DOES NOT PROVIDE A SUFFICIENT BASIS FOR A FINDING THAT
UNIVERSAL-RUNDLE WOULD BE "SACRIFICED" OR EVEN THAT IT WOULD SUFFER
SUBSTANTIAL FINANCIAL INJURY.  IT FOLLOWS THAT UNIVERSAL-RUNDLE HAS
FAILED TO DEMONSTRATE THAT ENFORCEMENT WOULD BE CONTRARY TO THE
PURPOSES OF THE CLAYTON ACT. 

WE NOTE THAT EVEN IF A PETITIONER SUCCEEDED IN DEMONSTRATING TO THE
COMMISSION THAT ALL OF ITS COMPETITORS WERE ENGAGED IN ILLEGAL PRICE
DISCRIMINATION PRACTICES IDENTICAL TO ITS OWN, AND THAT ENFORCEMENT OF
A CEASE-AND-DESIST ORDER MIGHT CAUSE IT SUBSTANTIAL FINANCIAL INJURY,
THE COMMISSION WOULD NOT NECESSARILY BE OBLIGED TO WITHHOLD ENFORCEMENT
OF THE ORDER.  AS WE STATED IN MOOG INDUSTRIES, 355 U.S., AT 413: 

"IT IS CLEARLY WITHIN THE SPECIAL COMPETENCE OF THE COMMISSION TO
APPRAISE THE ADVERSE EFFECT ON COMPETITION THAT MIGHT RESULT FROM
POSTPONING A PARTICULAR ORDER PROHIBITING CONTINUED VIOLATIONS OF THE
LAW.  FURTHERMORE, THE COMMISSION ALONE IS EMPOWERED TO DEVELOP THAT
ENFORCEMENT POLICY BEST CALCULATED TO ACHIEVE THE ENDS CONTEMPLATED BY
CONGRESS AND TO ALLOCATE ITS AVAILABLE FUNDS AND PERSONNEL IN SUCH A
WAY AS TO EXECUTE ITS POLICY EFFICIENTLY AND ECONOMICALLY." 

ON THE OTHER HAND, AS THE MOOG INDUSTRIES CASE ALSO INDICATES, THE
FEDERAL TRADE COMMISSION DOES NOT HAVE UNBRIDLED POWER TO INSTITUTE
PROCEEDINGS WHICH WILL ARBITRARILY DESTROY ONE OF MANY LAW VIOLATORS IN
AN INDUSTRY.  THIS IS NOT SUCH A CASE.  THE COMMISSION'S REFUSAL TO
WITHHOLD ENFORCEMENT OF THE CEASE-AND-DESIST ORDER AGAINST RESPONDENT
WAS BASED UPON A REASONABLE EVALUATION OF THE MERITS OF THE PETITION
FOR A STAY; THUS IT WAS NOT WITHIN THE SCOPE OF THE REVIEWING AUTHORITY
OF THE COURT BELOW TO OVERTHROW THE COMMISSION'S DETERMINATION. 
CONSEQUENTLY, WE REVERSE THE JUDGMENT BELOW, SET ASIDE THE STAY, AND
REMAND THE CAUSE FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
(FN5)  IT IS SO ORDERED. 

FN1  THE COMMISSION'S OPINION IS REPORTED IN TRADE REG. REP., 1963
1965 TRANSFER BINDER, PARA. 16,948. 

FN2  ACCORDING TO RESPONDENT'S PETITION FOR A STAY, THE SHARES
ENJOYED BY ITS PRINCIPAL COMPETITORS WERE:

                                                PERCENT 

AMERICAN RADIATOR & STANDARD SANITARY CORP.       32 

KOHLER CO.                                        15 

ELJER DIVISION OF THE MURRAY CORP. OF AMERICA         10 

CRANE CO.                                          9 

BRIGGS MANUFACTURING CO.                           6 

RHEEM MANUFACTURING CO.                            5 

FN3  THE COMMISSION FURTHER NOTED THAT "EVEN IF A PRIMA FACIE
VIOLATION OF SECTION 2(A) IS ESTABLISHED, THE SELLER MAY IN EACH CASE
INTERPOSE THE STATUTORY DEFENSES TO JUSTIFY THE DISCRIMINATION."  TRADE
REG. REP., 1963-1965 TRANSFER BINDER, PARA. 16,988, AT 22,070.    FN4
IBID. 

FN5  WE ARE INFORMED BY THE PARTIES THAT AFTER THE COMMISSION'S
REFUSAL TO GRANT THE STAY, THE RESPONDENT PRESENTED SOME EVIDENCE TO
THE COMMISSION STAFF WHICH WAS RELEVANT TO THE ANTICOMPETITIVE EFFECTS
OF THE DISCOUNTS OFFERED BY TWO OF ITS COMPETITORS.  APPARENTLY RELYING
ON THIS EVIDENCE, THE COURT BELOW RULED THAT THE COMMISSION WAS OBLIGED
TO CONDUCT ITS OWN INDUSTRY INVESTIGATION AND THAT THE PENDENCY OF A
DEPARTMENT OF JUSTICE ANTITRUST INVESTIGATION OF THE INDUSTRY DID NOT
RELIEVE THE COMMISSION OF THIS RESPONSIBILITY.  SINCE THE POST
PROCEEDING EVIDENCE WAS NOT PROPERLY BEFORE THE COURT BELOW ON A
PETITION FOR REVIEW AND IS NOT IN THE RECORD HERE, WE DO NOT REACH, AND
THE COURT BELOW SHOULD NOT HAVE REACHED, THE QUESTIONS OF WHETHER AN
INDUSTRY INVESTIGATION WAS NECESSITATED BY THE ADDITIONAL EVIDENCE OR
WHETHER SUCH AN INVESTIGATION WOULD BE UNNECESSARY IN LIGHT OF THE
DEPARTMENT OF JUSTICE INVESTIGATION. 
..END :





















AFROYIM V. RUSK. 387 U.S. 253 


NO. 456.  ARGUED FEBRUARY 20, 1967.  - DECIDED MAY 29, 1967.  - 361 F.2D
102, REVERSED. 


PETITIONER, OF POLISH BIRTH, BECAME A NATURALIZED AMERICAN CITIZEN IN
1926.  HE WENT TO ISRAEL IN 1950 AND IN 1951 VOTED IN AN ISRAELI
LEGISLATIVE ELECTION.  THE STATE DEPARTMENT SUBSEQUENTLY REFUSED TO
RENEW HIS PASSPORT, MAINTAINING THAT PETITIONER HAD LOST HIS
CITIZENSHIP BY VIRTUE OF SEC 401(E) OF THE NATIONALITY ACT OF 1940
WHICH PROVIDES THAT A UNITED STATES CITIZEN SHALL "LOSE" HIS
CITIZENSHIP IF HE VOTES IN A FOREIGN POLITICAL ELECTION.  PETITIONER
THEN BROUGHT THIS DECLARATORY JUDGMENT ACTION ALLEGING THE
UNCONSTITUTIONALITY OF SEC 401(E).  ON THE BASIS OF PEREZ V. BROWNELL,
356 U.S. 44, THE DISTRICT COURT AND COURT OF APPEALS HELD THAT CONGRESS
UNDER ITS IMPLIED POWER TO REGULATE FOREIGN AFFAIRS CAN STRIP AN
AMERICAN CITIZEN OF HIS CITIZENSHIP.  HELD:  CONGRESS HAS NO POWER
UNDER THE CONSTITUTION TO DIVEST A PERSON OF HIS UNITED STATES
CITIZENSHIP ABSENT HIS VOLUNTARY RENUNCIATION THEREOF.  PEREZ V.
BROWNELL, SUPRA, OVERRULED.  PP. 256-268. 

(A)  CONGRESS HAS NO EXPRESS POWER UNDER THE CONSTITUTION TO STRIP A
PERSON OF CITIZENSHIP, AND NO SUCH POWER CAN BE SUSTAINED AS AN IMPLIED
ATTRIBUTE OF SOVEREIGNTY, AS WAS RECOGNIZED BY CONGRESS BEFORE THE
PASSAGE OF THE FOURTEENTH AMENDMENT; AND A MATURE AND WELL-CONSIDERED
DICTUM IN OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738, 827, IS
TO THE SAME EFFECT.  PP.  257-261. 

(B)  THE FOURTEENTH AMENDMENT'S PROVISION THAT "ALL PERSONS BORN OR
NATURALIZED IN THE UNITED STATES  ...  ARE CITIZENS OF THE UNITED
STATES  ...  " COMPLETELY CONTROLS THE STATUS OF CITIZENSHIP AND
PREVENTS THE CANCELLATION OF PETITIONER'S CITIZENSHIP.  PP. 262-268. 

AFROYIM V. RUSK, SECRETARY OF STATE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, BORN IN POLAND IN 1893, IMMIGRATED TO THIS COUNTRY IN
1912 AND BECAME A NATURALIZED AMERICAN CITIZEN IN 1926.  HE WENT TO
ISRAEL IN 1950, AND IN 1951 HE VOLUNTARILY VOTED IN AN ELECTION FOR THE
ISRAELI KNESSET, THE LEGISLATIVE BODY OF ISRAEL.  IN 1960, WHEN HE
APPLIED FOR RENEWAL OF HIS UNITED STATES PASSPORT, THE DEPARTMENT OF
STATE REFUSED TO GRANT IT ON THE SOLE GROUND THAT HE HAD LOST HIS
AMERICAN CITIZENSHIP BY VIRTUE OF SEC 401(E) OF THE NATIONALITY ACT OF
1940 WHICH PROVIDES THAT A UNITED STATES CITIZEN SHALL "LOSE" HIS
CITIZENSHIP IF HE VOTES "IN A POLITICAL ELECTION IN A FOREIGN STATE." 
(FN1)  PETITIONER THEN BROUGHT THIS DECLARATORY JUDGMENT ACTION IN
FEDERAL DISTRICT COURT ALLEGING THAT SEC 401(E) VIOLATES BOTH THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT AND SEC 1, CL. 1, OF THE
FOURTEENTH AMENDMENT  (FN2) WHICH GRANTS AMERICAN CITIZENSHIP TO
PERSONS LIKE PETITIONER.  BECAUSE NEITHER THE FOURTEENTH AMENDMENT NOR
ANY OTHER PROVISION OF THE CONSTITUTION EXPRESSLY GRANTS CONGRESS THE
POWER TO TAKE AWAY THAT CITIZENSHIP ONCE IT HAS BEEN ACQUIRED,
PETITIONER CONTENDED THAT THE ONLY WAY HE COULD LOSE HIS CITIZENSHIP
WAS BY HIS OWN VOLUNTARY RENUNCIATION OF IT.  SINCE THE GOVERNMENT TOOK
THE POSITION THAT SEC 401(E) EMPOWERS IT TO TERMINATE CITIZENSHIP
WITHOUT THE CITIZEN'S VOLUNTARY RENUNCIATION, PETITIONER ARGUED THAT
THIS SECTION IS PROHIBITED BY THE CONSTITUTION.  THE DISTRICT COURT AND
THE COURT OF APPEALS, REJECTING THIS ARGUMENT, HELD THAT CONGRESS HAS
CONSTITUTIONAL AUTHORITY FORCIBLY TO TAKE AWAY CITIZENSHIP FOR VOTING
IN A FOREIGN COUNTRY BASED ON ITS IMPLIED POWER TO REGULATE FOREIGN
AFFAIRS.  CONSEQUENTLY, PETITIONER WAS HELD TO HAVE LOST HIS AMERICAN
CITIZENSHIP REGARDLESS OF HIS INTENTION NOT TO GIVE IT UP.  THIS IS
PRECISELY WHAT THIS COURT HELD IN PEREZ V. BROWNELL, 356 U.S. 44. 

PETITIONER, RELYING ON THE SAME CONTENTIONS ABOUT VOLUNTARY
RENUNCIATION OF CITIZENSHIP WHICH THIS COURT REJECTED IN UPHOLDING SEC
401(E) IN PEREZ, URGES US TO RECONSIDER THAT CASE, ADOPT THE VIEW OF
THE MINORITY THERE, AND OVERRULE IT.  THAT CASE, DECIDED BY A 5-4 VOTE
ALMOST 10 YEARS AGO, HAS BEEN A SOURCE OF CONTROVERSY AND CONFUSION
EVER SINCE, AS WAS EMPHATICALLY RECOGNIZED IN THE OPINIONS OF ALL THE
JUDGES WHO PARTICIPATED IN THIS CASE BELOW.  (FN3)  MOREOVER, IN THE
OTHER CASES DECIDED WITH (FN4) AND SINCE (FN5) PEREZ, THIS COURT HAS
CONSISTENTLY INVALIDATED ON A CASE-BY-CASE BASIS VARIOUS OTHER
STATUTORY SECTIONS PROVIDING FOR INVOLUNTARY EXPATRIATION.  IT HAS DONE
SO ON VARIOUS GROUNDS AND HAS REFUSED TO HOLD THAT CITIZENS CAN BE
EXPATRIATED WITHOUT THEIR VOLUNTARY RENUNCIATION OF CITIZENSHIP.  THESE
CASES, AS WELL AS MANY COMMENTATORS,  (FN6)  HAVE CAST GREAT DOUBT UPON
THE SOUNDNESS OF PEREZ.  UNDER THESE CIRCUMSTANCES, WE GRANTED
CERTIORARI TO RECONSIDER IT, 385 U.S. 917.  IN VIEW OF THE MANY RECENT
OPINIONS AND DISSENTS COMPREHENSIVELY DISCUSSING ALL THE ISSUES
INVOLVED,  (FN7)  WE DEEM IT UNNECESSARY TO TREAT THIS SUBJECT AT GREAT
LENGTH. 

THE FUNDAMENTAL ISSUE BEFORE THIS COURT HERE, AS IT WAS IN PEREZ, IS
WHETHER CONGRESS CAN CONSISTENTLY WITH THE FOURTEENTH AMENDMENT ENACT A
LAW STRIPPING AN AMERICAN OF HIS CITIZENSHIP WHICH HE HAS NEVER
VOLUNTARILY RENOUNCED OR GIVEN UP.  THE MAJORITY IN PEREZ HELD THAT
CONGRESS COULD DO THIS BECAUSE WITHDRAWAL OF CITIZENSHIP IS "REASONABLY
CALCULATED TO EFFECT THE END THAT IS WITHIN THE POWER OF CONGRESS TO
ACHIEVE."  356 U.S., AT 60.  THAT CONCLUSION WAS REACHED BY THIS CHAIN
OF REASONING:  CONGRESS HAS AN IMPLIED POWER TO DEAL WITH FOREIGN
AFFAIRS AS AN INDISPENSABLE ATTRIBUTE OF SOVEREIGNTY; THIS IMPLIED
POWER, PLUS THE NECESSARY AND PROPER CLAUSE, EMPOWERS CONGRESS TO
REGULATE VOTING BY AMERICAN CITIZENS IN FOREIGN ELECTIONS; INVOLUNTARY
EXPATRIATION IS WITHIN THE "AMPLE SCOPE" OF "APPROPRIATE MODES"
CONGRESS CAN ADOPT TO EFFECTUATE ITS GENERAL REGULATORY POWER.  ID., AT
57-60.  THEN, UPON SUMMARILY CONCLUDING THAT "THERE IS NOTHING IN THE
...  FOURTEENTH AMENDMENT TO WARRANT DRAWING FROM IT A RESTRICTION UPON
THE POWER OTHERWISE POSSESSED BY CONGRESS TO WITHDRAW CITIZENSHIP,"
ID., AT 58, N. 3, THE MAJORITY SPECIFICALLY REJECTED THE "NOTION THAT
THE POWER OF CONGRESS TO TERMINATE CITIZENSHIP DEPENDS UPON THE
CITIZEN'S ASSENT," ID., AT 61. 

FIRST WE REJECT THE IDEA EXPRESSED IN PEREZ THAT, ASIDE FROM THE
FOURTEENTH AMENDMENT, CONGRESS HAS ANY GENERAL POWER, EXPRESS OR
IMPLIED, TO TAKE AWAY AN AMERICAN CITIZEN'S CITIZENSHIP WITHOUT HIS
ASSENT.  THIS POWER CANNOT, AS PEREZ INDICATED, BE SUSTAINED AS AN
IMPLIED ATTRIBUTE OF SOVEREIGNTY POSSESSED BY ALL NATIONS.  OTHER
NATIONS ARE GOVERNED BY THEIR OWN CONSTITUTIONS, IF ANY, AND WE CAN
DRAW NO SUPPORT FROM THEIRS.  IN OUR COUNTRY THE PEOPLE ARE SOVEREIGN
AND THE GOVERNMENT CANNOT SEVER ITS RELATIONSHIP TO THE PEOPLE BY
TAKING AWAY THEIR CITIZENSHIP.  OUR CONSTITUTION GOVERNS US AND WE MUST
NEVER FORGET THAT OUR CONSTITUTION LIMITS THE GOVERNMENT TO THOSE
POWERS SPECIFICALLY GRANTED OR THOSE THAT ARE NECESSARY AND PROPER TO
CARRY OUT THE SPECIFICALLY GRANTED ONES.  THE CONSTITUTION, OF COURSE,
GRANTS CONGRESS NO EXPRESS POWER TO STRIP PEOPLE OF THEIR CITIZENSHIP,
WHETHER IN THE EXERCISE OF THE IMPLIED POWER TO REGULATE FOREIGN
AFFAIRS OR IN THE EXERCISE OF ANY SPECIFICALLY GRANTED POWER.  AND EVEN
BEFORE THE ADOPTION OF THE FOURTEENTH AMENDMENT, VIEWS WERE EXPRESSED
IN CONGRESS AND BY THIS COURT THAT UNDER THE CONSTITUTION THE
GOVERNMENT WAS GRANTED NO POWER, EVEN UNDER ITS EXPRESS POWER TO PASS A
UNIFORM RULE OF NATURALIZATION, TO DETERMINE WHAT CONDUCT SHOULD AND
SHOULD NOT RESULT IN THE LOSS OF CITIZENSHIP.  ON THREE OCCASIONS, IN
1794, 1797, AND 1818, CONGRESS CONSIDERED AND REJECTED PROPOSALS TO
ENACT LAWS WHICH WOULD DESCRIBE CERTAIN CONDUCT AS RESULTING IN
EXPATRIATION.  (FN8)  ON EACH OCCASION CONGRESS WAS CONSIDERING BILLS
THAT WERE CONCERNED WITH RECOGNIZING THE RIGHT OF VOLUNTARY
EXPATRIATION AND WITH PROVIDING SOME MEANS OF EXERCISING THAT RIGHT. 
IN 1794 AND 1797, MANY MEMBERS OF CONGRESS STILL ADHERED TO THE ENGLISH
DOCTRINE OF PERPETUAL ALLEGIANCE AND DOUBTED WHETHER A CITIZEN COULD
EVEN VOLUNTARILY RENOUNCE HIS CITIZENSHIP.  (FN9)  BY 1818, HOWEVER,
ALMOST NO ONE DOUBTED THE EXISTENCE OF THE RIGHT OF VOLUNTARY
EXPATRIATION, BUT SEVERAL JUDICIAL DECISIONS HAD INDICATED THAT THE
RIGHT COULD NOT BE EXERCISED BY THE CITIZEN WITHOUT THE CONSENT OF THE
FEDERAL GOVERNMENT IN THE FORM OF ENABLING LEGISLATION.  (FN10)
THEREFORE, A BILL WAS INTRODUCED TO PROVIDE THAT A PERSON COULD
VOLUNTARILY RELINQUISH HIS CITIZENSHIP BY DECLARING SUCH RELINQUISHMENT
IN WRITING BEFORE A DISTRICT COURT AND THEN DEPARTING FROM THE
COUNTRY.  (FN11)  THE OPPONENTS OF THE BILL ARGUED THAT CONGRESS HAD NO
CONSTITUTIONAL AUTHORITY, EITHER EXPRESS OR IMPLIED, UNDER EITHER THE
NATURALIZATION CLAUSE OR THE NECESSARY AND PROPER CLAUSE, TO PROVIDE
THAT A CERTAIN ACT WOULD CONSTITUTE EXPATRIATION.  (FN12)  THEY POINTED
TO A PROPOSED THIRTEENTH AMENDMENT, SUBSEQUENTLY NOT RATIFIED, WHICH
WOULD HAVE PROVIDED THAT A PERSON WOULD LOSE HIS CITIZENSHIP BY
ACCEPTING AN OFFICE OR EMOLUMENT FROM A FOREIGN GOVERNMENT.  (FN13)
CONGRESSMAN ANDERSON OF KENTUCKY ARGUED: 

"THE INTRODUCTION OF THIS ARTICLE DECLARES THE OPINION  ...  THAT
CONGRESS COULD NOT DECLARE THE ACTS WHICH SHOULD AMOUNT TO A
RENUNCIATION OF CITIZENSHIP; OTHERWISE THERE WOULD HAVE BEEN NO
NECESSITY FOR THIS LAST RESORT.  WHEN IT WAS SETTLED THAT CONGRESS
COULD NOT DECLARE THAT THE ACCEPTANCE OF A PENSION OR AN OFFICE FROM A
FOREIGN EMPEROR AMOUNTED TO A DISFRANCHISEMENT OF THE CITIZEN, IT MUST
SURELY BE CONCEDED THAT THEY COULD NOT DECLARE THAT ANY OTHER ACT DID. 
THE CASES TO WHICH THEIR POWERS BEFORE THIS AMENDMENT CONFESSEDLY DID
NOT EXTEND, ARE VERY STRONG, AND INDUCE A BELIEF THAT CONGRESS COULD
NOT IN ANY CASE DECLARE THE ACTS WHICH SHOULD CAUSE 'A PERSON TO CEASE
TO BE A CITIZEN.'  THE WANT OF POWER IN A CASE LIKE THIS, WHERE THE
INDIVIDUAL HAS GIVEN THE STRONGEST EVIDENCE OF ATTACHMENT TO A FOREIGN
POTENTATE AND AN ENTIRE RENUNCIATION OF THE FEELINGS AND PRINCIPLES OF
AN AMERICAN CITIZEN, CERTAINLY ESTABLISHES THE ABSENCE OF ALL POWER TO
PASS A BILL LIKE THE PRESENT ONE.  ALTHOUGH THE INTENTION WITH WHICH IT
WAS INTRODUCED, AND THE TITLE OF THE BILL DECLARE THAT IT IS TO INSURE
AND FOSTER THE RIGHT OF THE CITIZEN, THE DIRECT AND INEVITABLE EFFECT
OF THE BILL, IS AN ASSUMPTION OF POWER BY CONGRESS TO DECLARE THAT
CERTAIN ACTS WHEN COMMITTED SHALL AMOUNT TO A RENUNCIATION OF
CITIZENSHIP."  31 ANNALS OF CONG. 1038-1039 (1818). 

CONGRESSMAN PINDALL OF VIRGINIA REJECTED THE NOTION, LATER ACCEPTED
BY THE MAJORITY IN PEREZ, THAT THE NATURE OF SOVEREIGNTY GIVES CONGRESS
A RIGHT TO EXPATRIATE CITIZENS: 

"ALLEGIANCE IMPORTS AN OBLIGATION ON THE CITIZEN OR SUBJECT, THE
CORRELATIVE RIGHT TO WHICH RESIDES IN THE SOVEREIGN POWER:  ALLEGIANCE
IN THIS COUNTRY IS NOT DUE TO CONGRESS, BUT TO THE PEOPLE, WITH WHOM
THE SOVEREIGN POWER IS FOUND; IT IS, THEREFORE, BY THE PEOPLE ONLY THAT
ANY ALTERATION CAN BE MADE OF THE EXISTING INSTITUTIONS WITH RESPECT TO
ALLEGIANCE."  ID., AT 1045. 

ALTHOUGH HE RECOGNIZED THAT THE BILL MERELY SOUGHT TO PROVIDE A MEANS
OF VOLUNTARY EXPATRIATION, CONGRESSMAN LOWNDES OF SOUTH CAROLINA
ARGUED: 

"BUT, IF THE CONSTITUTION HAD INTENDED TO GIVE TO CONGRESS SO
DELICATE A POWER, IT WOULD HAVE BEEN EXPRESSLY GRANTED.  THAT IT WAS A
DELICATE POWER, AND OUGHT NOT TO BE LOOSELY INFERRED,  ... APPEARED IN
A STRONG LIGHT, WHEN IT WAS SAID, AND COULD NOT BE DENIED, THAT TO
DETERMINE THE MANNER IN WHICH A CITIZEN MAY RELINQUISH HIS RIGHT OF
CITIZENSHIP, IS EQUIVALENT TO DETERMINING HOW HE SHALL BE DIVESTED OF
THAT RIGHT.  THE EFFECT OF ASSUMING THE EXERCISE OF THESE POWERS WILL
BE, THAT BY ACTS OF CONGRESS A MAN MAY NOT ONLY BE RELEASED FROM ALL
THE LIABILITIES, BUT FROM ALL THE PRIVILEGES OF A CITIZEN.  IF YOU PASS
THIS BILL,  ...  YOU HAVE ONLY ONE STEP FURTHER TO GO, AND SAY THAT
SUCH AND SUCH ACTS SHALL BE CONSIDERED AS PRESUMPTION OF THE INTENTION
OF THE CITIZEN TO EXPATRIATE, AND THUS TAKE FROM HIM THE PRIVILEGES OF
A CITIZEN  ...  .  QUESTIONS AFFECTING THE RIGHT OF THE CITIZEN WERE
QUESTIONS TO BE REGULATED, NOT BY THE LAWS OF THE GENERAL OR STATE
GOVERNMENTS, BUT BY CONSTITUTIONAL PROVISIONS.  IF THERE WAS ANYTHING
ESSENTIAL TO OUR NOTION OF A CONSTITUTION,  ...  IT WAS THIS:  THAT
WHILE THE EMPLOYMENT OF THE PHYSICAL FORCE OF THE COUNTRY IS IN THE
HANDS OF THE LEGISLATURE, THOSE RULES WHICH DETERMINE WHAT CONSTITUTES
THE RIGHTS OF THE CITIZEN, SHALL BE A MATTER OF CONSTITUTIONAL
PROVISION."  ID., AT 1050-1051. 

THE BILL WAS FINALLY DEFEATED.  (FN14)  IT IS IN THIS SETTING THAT
SIX YEARS LATER, IN OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738,
827, THIS COURT, SPEAKING THROUGH CHIEF JUSTICE MARSHALL, DECLARED IN
WHAT APPEARS TO BE A MATURE AND WELL-CONSIDERED DICTUM THAT CONGRESS,
ONCE A PERSON BECOMES A CITIZEN, CANNOT DEPRIVE HIM OF THAT STATUS: 

"THE NATURALIZED CITIZEN BECOMES A MEMBER OF THE SOCIETY, POSSESSING
ALL THE RIGHTS OF A NATIVE CITIZEN, AND STANDING, IN THE VIEW OF THE
CONSTITUTION, ON THE FOOTING OF A NATIVE.  THE CONSTITUTION DOES NOT
AUTHORIZE CONGRESS TO ENLARGE OR ABRIDGE THOSE RIGHTS.  THE SIMPLE
POWER OF THE NATIONAL LEGISLATURE, IS TO PRESCRIBE A UNIFORM RULE OF
NATURALIZATION, AND THE EXERCISE OF THIS POWER EXHAUSTS IT, SO FAR AS
RESPECTS THE INDIVIDUAL." 

ALTHOUGH THESE LEGISLATIVE AND JUDICIAL STATEMENTS MAY BE REGARDED AS
INCONCLUSIVE AND MUST BE CONSIDERED IN THE HISTORICAL CONTEXT IN WHICH
THEY WERE MADE,  (FN15)  ANY DOUBT AS TO WHETHER PRIOR TO THE PASSAGE
OF THE FOURTEENTH AMENDMENT CONGRESS HAD THE POWER TO DEPRIVE A PERSON
AGAINST HIS WILL OF CITIZENSHIP ONCE OBTAINED SHOULD HAVE BEEN REMOVED
BY THE UNEQUIVOCAL TERMS OF THE AMENDMENT ITSELF.  IT PROVIDES ITS OWN
CONSTITUTIONAL RULE IN LANGUAGE CALCULATED COMPLETELY TO CONTROL THE
STATUS OF CITIZENSHIP:  "ALL PERSONS BORN OR NATURALIZED IN THE UNITED
STATES  ...  ARE CITIZENS OF THE UNITED STATES  ...  .'  THERE IS NO
INDICATION IN THESE WORDS OF A FLEETING CITIZENSHIP, GOOD AT THE MOMENT
IT IS ACQUIRED BUT SUBJECT TO DESTRUCTION BY THE GOVERNMENT AT ANY
TIME.  RATHER THE AMENDMENT CAN MOST REASONABLY BE READ AS DEFINING A
CITIZENSHIP WHICH A CITIZEN KEEPS UNLESS HE VOLUNTARILY RELINQUISHES
IT.  ONCE ACQUIRED, THIS FOURTEENTH AMENDMENT CITIZENSHIP WAS NOT TO BE
SHIFTED, CANCELED, OR DILUTED AT THE WILL OF THE FEDERAL GOVERNMENT,
THE STATES, OR ANY OTHER GOVERNMENTAL UNIT. 

IT IS TRUE THAT THE CHIEF INTEREST OF THE PEOPLE IN GIVING PERMANENCE
AND SECURITY TO CITIZENSHIP IN THE FOURTEENTH AMENDMENT WAS THE DESIRE
TO PROTECT NEGROES.  THE DRED SCOTT DECISION, 19 HOW.  393, HAD SHORTLY
BEFORE GREATLY DISTURBED MANY PEOPLE ABOUT THE STATUS OF NEGRO
CITIZENSHIP.  BUT THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27, HAD
ALREADY ATTEMPTED TO CONFER CITIZENSHIP ON ALL PERSONS BORN OR
NATURALIZED IN THE UNITED STATES.  NEVERTHELESS, WHEN THE FOURTEENTH
AMENDMENT PASSED THE HOUSE WITHOUT CONTAINING ANY DEFINITION OF
CITIZENSHIP, THE SPONSORS OF THE AMENDMENT IN THE SENATE INSISTED ON
INSERTING A CONSTITUTIONAL DEFINITION AND GRANT OF CITIZENSHIP.  THEY
EXPRESSED FEARS THAT THE CITIZENSHIP SO RECENTLY CONFERRED ON NEGROES
BY THE CIVIL RIGHTS ACT COULD BE JUST AS EASILY TAKEN AWAY FROM THEM BY
SUBSEQUENT CONGRESSES, AND IT WAS TO PROVIDE AN INSUPERABLE OBSTACLE
AGAINST EVERY GOVERNMENTAL EFFORT TO STRIP NEGROES OF THEIR NEWLY
ACQUIRED CITIZENSHIP THAT THE FIRST CLAUSE WAS ADDED TO THE FOURTEENTH
AMENDMENT.  (FN16)  SENATOR HOWARD, WHO SPONSORED THE AMENDMENT IN THE
SENATE, THUS EXPLAINED THE PURPOSE OF THE CLAUSE:    "IT SETTLES THE
GREAT QUESTION OF CITIZENSHIP AND REMOVES ALL DOUBT AS TO WHAT PERSONS
ARE OR ARE NOT CITIZENS OF THE UNITED STATES  ...  .  WE DESIRED TO PUT
THIS QUESTION OF CITIZENSHIP AND THE RIGHTS OF CITIZENS  ...  UNDER THE
CIVIL RIGHTS BILL BEYOND THE LEGISLATIVE POWER  ...  ."  CONG.  GLOBE,
39TH CONG., 1ST SESS., 2890, 2896 (1866). 

THIS UNDENIABLE PURPOSE OF THE FOURTEENTH AMENDMENT TO MAKE
CITIZENSHIP OF NEGROES PERMANENT AND SECURE WOULD BE FRUSTRATED BY
HOLDING THAT THE GOVERNMENT CAN ROB A CITIZEN OF HIS CITIZENSHIP
WITHOUT HIS CONSENT BY SIMPLY PROCEEDING TO ACT UNDER AN IMPLIED
GENERAL POWER TO REGULATE FOREIGN AFFAIRS OR SOME OTHER POWER GENERALLY
GRANTED.  THOUGH THE FRAMERS OF THE AMENDMENT WERE NOT PARTICULARLY
CONCERNED WITH THE PROBLEM OF EXPATRIATION, IT SEEMS UNDENIABLE FROM
THE LANGUAGE THEY USED THAT THEY WANTED TO PUT CITIZENSHIP BEYOND THE
POWER OF ANY GOVERNMENTAL UNIT TO DESTROY.  IN 1868, TWO YEARS AFTER
THE FOURTEENTH AMENDMENT HAD BEEN PROPOSED, CONGRESS SPECIFICALLY
CONSIDERED THE SUBJECT OF EXPATRIATION.  SEVERAL BILLS WERE INTRODUCED
TO IMPOSE INVOLUNTARY EXPATRIATION ON CITIZENS WHO COMMITTED CERTAIN
ACTS.  (FN17)  WITH LITTLE DISCUSSION, THESE PROPOSALS WERE DEFEATED. 
OTHER BILLS, LIKE THE ONE PROPOSED BUT DEFEATED IN 1818, PROVIDED
MERELY A MEANS BY WHICH THE CITIZEN COULD HIMSELF VOLUNTARILY RENOUNCE
HIS CITIZENSHIP.  (FN18)  REPRESENTATIVE VAN TRUMP OF OHIO, WHO
PROPOSED SUCH A BILL, VEHEMENTLY DENIED IN SUPPORTING IT THAT HIS
MEASURE WOULD MAKE THE GOVERNMENT "A PARTY TO THE ACT DISSOLVING THE
TIE BETWEEN THE CITIZEN AND HIS COUNTRY  ...  WHERE THE STATUTE SIMPLY
PRESCRIBES THE MANNER IN WHICH THE CITIZEN SHALL PROCEED TO PERPETUATE
THE EVIDENCE OF HIS INTENTION, OR ELECTION, TO RENOUNCE HIS CITIZENSHIP
BY EXPATRIATION."  CONG. GLOBE, 40TH CONG., 2D SESS., 1804 (1868).  HE
INSISTED THAT "INASMUCH AS THE ACT OF EXPATRIATION DEPENDS ALMOST
ENTIRELY UPON A QUESTION OF INTENTION ON THE PART OF THE CITIZEN," ID.,
AT 1801, "THE TRUE QUESTION IS, THAT NOT ONLY THE RIGHT OF
EXPATRIATION, BUT THE WHOLE POWER OF ITS EXERCISE, RESTS SOLELY AND
EXCLUSIVELY IN THE WILL OF THE INDIVIDUAL," ID., AT 1804.  (FN19)  IN
STRONGEST OF TERMS, NOT CONTRADICTED BY ANY DURING THE DEBATES, HE
CONCLUDED: 

"TO ENFORCE EXPATRIATION OR EXILE AGAINST A CITIZEN WITHOUT HIS
CONSENT IS NOT A POWER ANYWHERE BELONGING TO THIS GOVERNMENT.  NO
CONSERVATIVE-MINDED STATESMAN, NO INTELLIGENT LEGISLATOR, NO SOUND
LAWYER HAS EVER MAINTAINED ANY SUCH POWER IN ANY BRANCH OF THE
GOVERNMENT.  THE LAWLESS PRECEDENTS CREATED IN THE DELIRIUM OF WAR  ...
OF SENDING MEN BY FORCE INTO EXILE, AS A PUNISHMENT FOR POLITICAL
OPINION, WERE VIOLATIONS OF THIS GREAT LAW  ...  OF THE CONSTITUTION
...  .  THE MEN WHO DEBATED THE QUESTION IN 1818 FAILED TO SEE THE TRUE
DISTINCTION  ...  .  THEY FAILED TO COMPREHEND THAT IT IS NOT THE
GOVERNMENT, BUT THAT IT IS THE INDIVIDUAL, WHO HAS THE RIGHT AND THE
ONLY POWER OF EXPATRIATION  ...  .  IT BELONGS AND APPERTAINS TO THE
CITIZEN AND NOT TO THE GOVERNMENT; AND IT IS THE EVIDENCE OF HIS
ELECTION TO EXERCISE HIS RIGHT, AND NOT THE POWER TO CONTROL EITHER THE
ELECTION OR THE RIGHT ITSELF, WHICH IS THE LEGITIMATE SUBJECT MATTER OF
LEGISLATION.  THERE HAS BEEN, AND THERE CAN BE, NO LEGISLATION UNDER
OUR CONSTITUTION TO CONTROL IN ANY MANNER THE RIGHT ITSELF."  IBID. 

BUT EVEN VAN TRUMP'S PROPOSAL, WHICH WENT NO FURTHER THAN TO PROVIDE
A MEANS OF EVIDENCING A CITIZEN'S INTENT TO RENOUNCE HIS CITIZENSHIP,
WAS DEFEATED.  (FN20) THE ACT, AS FINALLY PASSED, MERELY RECOGNIZED THE
"RIGHT OF EXPATRIATION" AS AN INHERENT RIGHT OF ALL PEOPLE.  (FN21) 

THE ENTIRE LEGISLATIVE HISTORY OF THE 1868 ACT MAKES IT ABUNDANTLY
CLEAR THAT THERE WAS A STRONG FEELING IN THE CONGRESS THAT THE ONLY WAY
THE CITIZENSHIP IT CONFERRED COULD BE LOST WAS BY THE VOLUNTARY
RENUNCIATION OR ABANDONMENT BY THE CITIZEN HIMSELF.  AND THIS WAS THE
UNEQUIVOCAL STATEMENT OF THE COURT IN THE CASE OF UNITED STATES V. WONG
KIM ARK, 169 U.S. 649.  THE ISSUES IN THAT CASE WERE WHETHER A PERSON
BORN IN THE UNITED STATES TO CHINESE ALIENS WAS A CITIZEN OF THE UNITED
STATES AND WHETHER, NEVERTHELESS, HE COULD BE EXCLUDED UNDER THE
CHINESE EXCLUSION ACT, 22 STAT. 58.  THE COURT FIRST HELD THAT WITHIN
THE TERMS OF THE FOURTEENTH AMENDMENT, WONG KIM ARK WAS A CITIZEN OF
THE UNITED STATES, AND THEN POINTED OUT THAT THOUGH HE MIGHT "RENOUNCE
THIS CITIZENSHIP, AND BECOME A CITIZEN OF  ...  ANY OTHER COUNTRY," HE
HAD NEVER DONE SO.  ID., AT 704-705.  THE COURT THEN HELD  (FN22)  THAT
CONGRESS COULD NOT DO ANYTHING TO ABRIDGE OR AFFECT HIS CITIZENSHIP
CONFERRED BY THE FOURTEENTH AMENDMENT.  QUOTING CHIEF JUSTICE
MARSHALL'S WELL-CONSIDERED AND OFT-REPEATED DICTUM IN OSBORN TO THE
EFFECT THAT CONGRESS UNDER THE POWER OF NATURALIZATION HAS "A POWER TO
CONFER CITIZENSHIP, NOT A POWER TO TAKE IT AWAY," THE COURT SAID: 

"CONGRESS HAVING NO POWER TO ABRIDGE THE RIGHTS CONFERRED BY THE
CONSTITUTION UPON THOSE WHO HAVE BECOME NATURALIZED CITIZENS BY VIRTUE
OF ACTS OF CONGRESS, A FORTIORI NO ACT  ...  OF CONGRESS  ... CAN
AFFECT CITIZENSHIP ACQUIRED AS A BIRTHRIGHT, BY VIRTUE OF THE
CONSTITUTION ITSELF  ...  .  THE FOURTEENTH AMENDMENT, WHILE IT LEAVES
THE POWER, WHERE IT WAS BEFORE, IN CONGRESS, TO REGULATE
NATURALIZATION, HAS CONFERRED NO AUTHORITY UPON CONGRESS TO RESTRICT
THE EFFECT OF BIRTH, DECLARED BY THE CONSTITUTION TO CONSTITUTE A
SUFFICIENT AND COMPLETE RIGHT TO CITIZENSHIP."  ID., AT 703. 

TO UPHOLD CONGRESS' POWER TO TAKE AWAY A MAN'S CITIZENSHIP BECAUSE HE
VOTED IN A FOREIGN ELECTION IN VIOLATION OF SEC 401(E) WOULD BE
EQUIVALENT TO HOLDING THAT CONGRESS HAS THE POWER TO "ABRIDGE,"
"AFFECT," "RESTRICT THE EFFECT OF," AND "TAKE  ...  AWAY" CITIZENSHIP. 
BECAUSE THE FOURTEENTH AMENDMENT PREVENTS CONGRESS FROM DOING ANY OF
THESE THINGS, WE AGREE WITH THE CHIEF JUSTICE'S DISSENT IN THE PEREZ
CASE THAT THE GOVERNMENT IS WITHOUT POWER TO ROB A CITIZEN OF HIS
CITIZENSHIP UNDER SEC 401(E).  (FN23) 

BECAUSE THE LEGISLATIVE HISTORY OF THE FOURTEENTH AMENDMENT AND OF
THE EXPATRIATION PROPOSALS WHICH PRECEDED AND FOLLOWED IT, LIKE MOST
OTHER LEGISLATIVE HISTORY, CONTAINS MANY STATEMENTS FROM WHICH
CONFLICTING INFERENCES CAN BE DRAWN, OUR HOLDING MIGHT BE UNWARRANTED
IF IT RESTED ENTIRELY OR PRINCIPALLY UPON THAT LEGISLATIVE HISTORY. 
BUT IT DOES NOT.  OUR HOLDING WE THINK IS THE ONLY ONE THAT CAN STAND
IN VIEW OF THE LANGUAGE AND THE PURPOSE OF THE FOURTEENTH AMENDMENT,
AND OUR CONSTRUCTION OF THAT AMENDMENT, WE BELIEVE, COMPORTS MORE
NEARLY THAN PEREZ WITH THE PRINCIPLES OF LIBERTY AND EQUAL JUSTICE TO
ALL THAT THE ENTIRE FOURTEENTH AMENDMENT WAS ADOPTED TO GUARANTEE. 
CITIZENSHIP IS NO LIGHT TRIFLE TO BE JEOPARDIZED ANY MOMENT CONGRESS
DECIDES TO DO SO UNDER THE NAME OF ONE OF ITS GENERAL OR IMPLIED GRANTS
OF POWER.  IN SOME INSTANCES, LOSS OF CITIZENSHIP CAN MEAN THAT A MAN
IS LEFT WITHOUT THE PROTECTION OF CITIZENSHIP IN ANY COUNTRY IN THE
WORLD - AS A MAN WITHOUT A COUNTRY.  CITIZENSHIP IN THIS NATION IS A
PART OF A COOPERATIVE AFFAIR.  ITS CITIZENRY IS THE COUNTRY AND THE
COUNTRY IS ITS CITIZENRY.  THE VERY NATURE OF OUR FREE GOVERNMENT MAKES
IT COMPLETELY INCONGRUOUS TO HAVE A RULE OF LAW UNDER WHICH A GROUP OF
CITIZENS TEMPORARILY IN OFFICE CAN DEPRIVE ANOTHER GROUP OF CITIZENS OF
THEIR CITIZENSHIP.  WE HOLD THAT THE FOURTEENTH AMENDMENT WAS DESIGNED
TO, AND DOES, PROTECT EVERY CITIZEN OF THIS NATION AGAINST A
CONGRESSIONAL FORCIBLE DESTRUCTION OF HIS CITIZENSHIP, WHATEVER HIS
CREED, COLOR, OR RACE.  OUR HOLDING DOES NO MORE THAN TO GIVE TO THIS
CITIZEN THAT WHICH IS HIS OWN, A CONSTITUTIONAL RIGHT TO REMAIN A
CITIZEN IN A FREE COUNTRY UNLESS HE VOLUNTARILY RELINQUISHES THAT
CITIZENSHIP. 

PEREZ V. BROWNELL IS OVERRULED.  THE JUDGMENT IS REVERSED. 

FN1  54 STAT. 1168, AS AMENDED, 58 STAT. 746, 8 U.S.C. SEC 801 (1946
ED.): 

"A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR
NATURALIZATION, SHALL LOSE HIS NATIONALITY BY:

*         *         *         *         * 

"(E) VOTING IN A POLITICAL ELECTION IN A FOREIGN STATE OR
PARTICIPATING IN AN ELECTION OR PLEBISCITE TO DETERMINE THE SOVEREIGNTY
OVER FOREIGN TERRITORY." 

THIS PROVISION WAS RE-ENACTED AS SEC 349(A)(5) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 267, 8 U.S.C. SEC 1481(A)(5). 

FN2  "ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES AND
SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES
...  ." 

FN3  250 F. SUPP. 686; 361 F.2D 102, 105. 

FN4  TROP V. DULLES, 356 U.S. 86; NISHIKAWA V. DULLES, 356 U.S. 129. 

FN5  KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144; SCHNEIDER V. RUSK,
377 U.S. 163.  IN HIS CONCURRING OPINION IN MENDOZA-MARTINEZ, MR.
JUSTICE BRENNAN EXPRESSED "FELT DOUBTS OF THE CORRECTNESS OF PEREZ  ...
."  372 U.S., AT 187. 

FN6  SEE, E.G., AGATA, INVOLUNTARY EXPATRIATION AND SCHNEIDER V.
RUSK, 27 U. PITT.  L. REV.  1 (1965); HURST, CAN CONGRESS TAKE AWAY
CITIZENSHIP?, 29 ROCKY MT. L. REV. 62 (1956); KURLAND, FOREWORD:
"EQUAL IN ORIGIN AND EQUAL IN TITLE TO THE LEGISLATIVE AND EXECUTIVE
BRANCHES OF THE GOVERNMENT," 78 HARV. L. REV. 143, 169-175 (1964);
COMMENT, 56 MICH. L. REV. 1142 (1958); NOTE, FORFEITURE OF CITIZENSHIP
THROUGH CONGRESSIONAL ENACTMENTS, 21 U. CIN.  L. REV. 59 (1952); 40
CORNELL L.Q. 365 (1955); 25 S. CAL. L. REV. 196 (1952).  BUT SEE, E.G.,
COMMENT, THE EXPATRIATION ACT OF 1954, 64 YALE L.J. 1164 (1955). 

FN7  SEE PEREZ V. BROWNELL, SUPRA, AT 62 (DISSENTING OPINION OF THE
CHIEF JUSTICE), 79 (DISSENTING OPINION OF MR. JUSTICE DOUGLAS); TROP V.
DULLES, SUPRA, AT 91-93 (PART I OF OPINION OF COURT); NISHIKAWA V.
DULLES, SUPRA, AT 138 (CONCURRING OPINION OF MR. JUSTICE BLACK). 

FN8  FOR A HISTORY OF THE EARLY AMERICAN VIEW OF THE RIGHT OF
EXPATRIATION, INCLUDING THESE CONGRESSIONAL PROPOSALS, SEE GENERALLY
ROCHE, THE EARLY DEVELOPMENT OF UNITED STATES CITIZENSHIP (1949);
TSIANG, THE QUESTION OF EXPATRIATION IN AMERICA PRIOR TO 1907 (1942);
DUTCHER, THE RIGHT OF EXPATRIATION, 11 AM. L. REV. 447 (1877); ROCHE,
THE LOSS OF AMERICAN NATIONALITY - THE DEVELOPMENT OF STATUTORY
EXPATRIATION, 99 U. PA. L. REV. 25 (1950); SLAYMAKER, THE RIGHT OF THE
AMERICAN CITIZEN TO EXPATRIATE, 37 AM. L. REV. 191 (1903). 

FN9  4 ANNALS OF CONG. 1005, 1027-1030 (1794); 7 ANNALS OF CONG. 349
ET SEQ. (1797). 

FN10  SEE, E.G., TALBOT V. JANSON, 3 DALL.  133. 

FN11  31 ANNALS OF CONG. 495 (1817). 

FN12  ID., AT 1036-1037, 1058 (1818).  ALTHOUGH SOME OF THE
OPPONENTS, BELIEVING THAT CITIZENSHIP WAS DERIVED FROM THE STATES,
ARGUED THAT ANY POWER TO PRESCRIBE THE MODE FOR ITS RELINQUISHMENT
RESTED IN THE STATES, THEY WERE CAREFUL TO POINT OUT THAT "THE ABSENCE
OF ALL POWER FROM THE STATE LEGISLATURES WOULD NOT VEST IT IN US." 
ID., AT 1039. 

FN13  THE AMENDMENT HAD BEEN PROPOSED BY THE 11TH CONG., 2D SESS.
SEE THE CONSTITUTION OF THE UNITED STATES OF AMERICA, S. DOC. NO. 39,
88TH CONG., 1ST SESS., 77-78 (1964). 

FN14  ID., AT 1071.  IT IS INTERESTING TO NOTE THAT THE PROPONENTS OF
THE BILL, SUCH AS CONGRESSMAN COBB OF GEORGIA, CONSIDERED IT TO BE "THE
SIMPLE DECLARATION OF THE MANNER IN WHICH A VOLUNTARY ACT, IN THE
EXERCISE OF A NATURAL RIGHT, MAY BE PERFORMED" AND DENIED THAT IT
CREATED OR COULD LEAD TO THE CREATION OF "A PRESUMPTION OF
RELINQUISHMENT OF THE RIGHT OF CITIZENSHIP."  ID., AT 1068. 

FN15  THE DISSENTING OPINION HERE POINTS TO THE FACT THAT A CIVIL WAR
CONGRESS PASSED TWO ACTS DESIGNED TO DEPRIVE MILITARY DESERTERS TO THE
SOUTHERN SIDE OF THE RIGHTS OF CITIZENSHIP.  MEASURES OF THIS KIND
PASSED IN THOSE DAYS OF EMOTIONAL STRESS AND HOSTILITY ARE BY NO MEANS
THE MOST RELIABLE CRITERIA FOR DETERMINING WHAT THE CONSTITUTION
MEANS. 

FN16  CONG. GLOBE, 39TH CONG., 1ST SESS., 2768-2769, 2869, 2890 ET
SEQ. (1866).  SEE GENERALLY, FLACK, ADOPTION OF THE FOURTEENTH
AMENDMENT 88-94 (1908). 

FN17  REPRESENTATIVE JENCKES OF RHODE ISLAND INTRODUCED AN AMENDMENT
THAT WOULD EXPATRIATE THOSE CITIZENS WHO BECAME NATURALIZED BY A
FOREIGN GOVERNMENT, PERFORMED PUBLIC DUTIES FOR A FOREIGN GOVERNMENT OR
TOOK UP DOMICILE IN A FOREIGN COUNTRY WITHOUT INTENT TO RETURN.  CONG.
GLOBE, 40TH CONG., 2D SESS., 968, 1129, 2311 (1868).  ALTHOUGH HE
CHARACTERIZED HIS PROPOSAL AS COVERING "CASES WHERE CITIZENS MAY
VOLUNTARILY RENOUNCE THEIR ALLEGIANCE TO THIS COUNTRY," ID., AT 1159,
IT WAS OPPOSED BY REPRESENTATIVE CHANLER OF NEW YORK WHO SAID, "SO LONG
AS A CITIZEN DOES NOT EXPRESSLY DISSOLVE HIS ALLEGIANCE AND DOES NOT
SWEAR ALLEGIANCE TO ANOTHER COUNTRY HIS CITIZENSHIP REMAINS IN STATU
QUO, UNALTERED AND UNIMPAIRED."  ID., AT 1016. 

FN18  PROPOSALS OF REPRESENTATIVES PRUYN OF NEW YORK (ID., AT 1130)
AND VAN TRUMP OF OHIO (ID., AT 1801, 2311). 

FN19  WHILE VAN TRUMP DISAGREED WITH THE 1818 OPPONENTS AS TO WHETHER
CONGRESS HAD POWER TO PRESCRIBE A MEANS OF VOLUNTARY RENUNCIATION OF
CITIZENSHIP, HE WHOLEHEARTEDLY AGREED WITH THEIR PREMISE THAT THE RIGHT
OF EXPATRIATION BELONGS TO THE CITIZEN, NOT TO THE GOVERNMENT, AND THAT
THE CONSTITUTION FORBIDS THE GOVERNMENT FROM BEING PARTY TO THE ACT OF
EXPATRIATION.  VAN TRUMP SIMPLY THOUGHT THAT THE OPPONENTS OF THE 1818
PROPOSAL FAILED TO RECOGNIZE THAT THEIR MUTUAL PREMISE WOULD NOT BE
VIOLATED BY AN ACT WHICH MERELY PRESCRIBED "HOW  ...  THE RIGHTS OF
CITIZENSHIP MIGHT BE RELINQUISHED AT THE OPTION OF THE PERSON IN WHOM
THEY WERE VESTED."  CONG. GLOBE, 40TH CONG., 2D SESS., 1804 (1868). 
FN20  ID., AT 2317.  REPRESENTATIVE BANKS OF MASSACHUSETTS, THE
CHAIRMAN OF THE HOUSE COMMITTEE ON FOREIGN AFFAIRS WHICH DRAFTED THE
BILL EVENTUALLY ENACTED INTO LAW, EXPLAINED WHY CONGRESS REFRAINED FROM
PROVIDING A MEANS OF EXPATRIATION: 

"IT IS A SUBJECT WHICH, IN OUR OPINION, OUGHT NOT TO BE LEGISLATED
UPON  ...  .  THIS COMES WITHIN THE SCOPE AND CHARACTER OF NATURAL
RIGHTS WHICH NO GOVERNMENT HAS THE RIGHT TO CONTROL AND WHICH NO
GOVERNMENT CAN CONFER.  AND WHEREVER THIS SUBJECT IS ALLUDED TO IN THE
CONSTITUTION -  ...  IT IS IN THE DECLARATION THAT CONGRESS SHALL HAVE
NO POWER WHATEVER TO LEGISLATE UPON THESE MATTERS."  ID., AT 2316. 

FN21  15 STAT. 223, R.S. SEC 1999. 

FN22  SOME HAVE REFERRED TO THIS PART OF THE DECISION AS A HOLDING,
SEE, E.G., HURST, SUPRA, 29 ROCKY MT. L. REV., AT 78-79; COMMENT, 56
MICH. L. REV., AT 1153-1154; WHILE OTHERS HAVE REFERRED TO IT AS OBITER
DICTUM, SEE, E.G., ROCHE, SUPRA, 99 U. PA. L. REV., AT 26-27. 
WHICHEVER IT WAS, THE STATEMENT WAS EVIDENTLY THE RESULT OF SERIOUS
CONSIDERATION AND IS ENTITLED TO GREAT WEIGHT. 

FN23  OF COURSE, AS THE CHIEF JUSTICE SAID IN HIS DISSENT, 356 U.S.,
AT 66, NATURALIZATION UNLAWFULLY PROCURED CAN BE SET ASIDE.  SEE, E.G.,
KNAUER V. UNITED STATES, 328 U.S. 654; BAUMGARTNER V. UNITED STATES,
322 U.S. 665; SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK, MR. JUSTICE STEWART, AND
MR. JUSTICE WHITE, JOIN, DISSENTING. 

ALMOST 10 YEARS AGO, IN PEREZ V. BROWNELL, 356 U.S. 44, THE COURT
UPHELD THE CONSTITUTIONALITY OF SEC 401(E) OF THE NATIONALITY ACT OF
1940, 54 STAT. 1169.  THE SECTION DEPRIVES OF HIS NATIONALITY ANY
CITIZEN WHO HAS VOTED IN A FOREIGN POLITICAL ELECTION.  THE COURT
REASONED THAT CONGRESS DERIVED FROM ITS POWER TO REGULATE FOREIGN
AFFAIRS AUTHORITY TO EXPATRIATE ANY CITIZEN WHO INTENTIONALLY COMMITS
ACTS WHICH MAY BE PREJUDICIAL TO THE FOREIGN RELATIONS OF THE UNITED
STATES, AND WHICH REASONABLY MAY BE DEEMED TO INDICATE A DILUTION OF
HIS ALLEGIANCE TO THIS COUNTRY.  CONGRESS, IT WAS HELD, COULD
APPROPRIATELY CONSIDER PURPOSEFUL VOTING IN A FOREIGN POLITICAL
ELECTION TO BE SUCH AN ACT. 

THE COURT TODAY OVERRULES PEREZ, AND DECLARES SEC 401(E)
UNCONSTITUTIONAL, BY A REMARKABLE PROCESS OF CIRCUMLOCUTION.  FIRST,
THE COURT FAILS ALMOST ENTIRELY TO DISPUTE THE REASONING IN PEREZ; IT
IS ESSENTIALLY CONTENT WITH THE CONCLUSORY AND QUITE UNSUBSTANTIATED
ASSERTION THAT CONGRESS IS WITHOUT "ANY GENERAL POWER, EXPRESS OR
IMPLIED," TO EXPATRIATE A CITIZEN "WITHOUT HIS ASSENT."  (FN1)  NEXT,
THE COURT EMBARKS UPON A LENGTHY, ALBEIT INCOMPLETE, SURVEY OF THE
HISTORICAL BACKGROUND OF THE CONGRESSIONAL POWER AT STAKE HERE, AND
YET, AT THE END, CONCEDES THAT THE HISTORY IS SUSCEPTIBLE OF
"CONFLICTING INFERENCES."  THE COURT ACKNOWLEDGES THAT ITS CONCLUSIONS
MIGHT NOT BE WARRANTED BY THAT HISTORY ALONE, AND DISCLAIMS THAT THE
DECISION TODAY RELIES, EVEN "PRINCIPALLY," UPON IT. FINALLY, THE COURT
DECLARES THAT ITS RESULT IS BOTTOMED UPON THE "LANGUAGE AND THE
PURPOSE" OF THE CITIZENSHIP CLAUSE OF THE FOURTEENTH AMENDMENT; IN
EXPLANATION, THE COURT OFFERS ONLY THE TERMS OF THE CLAUSE ITSELF, THE
CONTENTION THAT ANY OTHER RESULT WOULD BE "COMPLETELY INCONGRUOUS," AND
THE ESSENTIALLY ARCANE OBSERVATION THAT THE "CITIZENRY IS THE COUNTRY
AND THE COUNTRY IS ITS CITIZENRY." 

I CAN FIND NOTHING IN THIS EXTRAORDINARY SERIES OF CIRCUMVENTIONS
WHICH PERMITS, STILL LESS COMPELS, THE IMPOSITION OF THIS
CONSTITUTIONAL CONSTRAINT UPON THE AUTHORITY OF CONGRESS.  I MUST
RESPECTFULLY DISSENT. 

THERE IS NO NEED HERE TO REHEARSE MR. JUSTICE FRANKFURTER'S OPINION
FOR THE COURT IN PEREZ; IT THEN PROVED AND STILL PROVES TO MY
SATISFACTION THAT SEC 401(E) IS WITHIN THE POWER OF CONGRESS.  (FN2)
IT SUFFICES SIMPLY TO SUPPLEMENT PEREZ WITH AN EXAMINATION OF THE
HISTORICAL EVIDENCE WHICH THE COURT IN PART RECITES, AND WHICH PROVIDES
THE ONLY APPARENT BASIS FOR MANY OF THE COURT'S CONCLUSIONS.  AS WILL
BE SEEN, THE AVAILABLE HISTORICAL EVIDENCE IS NOT ONLY INADEQUATE TO
SUPPORT THE COURT'S ABANDONMENT OF PEREZ, BUT, WITH DUE REGARD FOR THE
RESTRAINTS THAT SHOULD SURROUND THE JUDICIAL INVALIDATION OF AN ACT OF
CONGRESS, EVEN SEEMS TO CONFIRM PEREZ' SOUNDNESS. 

           I. 

NOT MUCH EVIDENCE IS AVAILABLE FROM THE PERIOD PRIOR TO THE ADOPTION
OF THE FOURTEENTH AMENDMENT THROUGH WHICH THE THEN-PREVAILING ATTITUDES
ON THESE CONSTITUTIONAL QUESTIONS CAN NOW BE DETERMINED.   THE
QUESTIONS PERTINENT HERE WERE ONLY TANGENTIALLY DEBATED; CONTROVERSY
CENTERED INSTEAD UPON THE WIDER ISSUES OF WHETHER A CITIZEN MIGHT UNDER
ANY CIRCUMSTANCES RENOUNCE HIS CITIZENSHIP, AND, IF HE MIGHT, WHETHER
THAT RIGHT SHOULD BE CONDITIONED UPON ANY FORMAL PREREQUISITES.  (FN3)
EVEN THE DISCUSSION OF THESE ISSUES WAS SERIOUSLY CLOUDED BY THE WIDELY
ACCEPTED VIEW THAT AUTHORITY TO REGULATE THE INCIDENTS OF CITIZENSHIP
HAD BEEN RETAINED, AT LEAST IN PART, BY THE SEVERAL STATES.  (FN4)  IT
SHOULD THEREFORE BE REMEMBERED THAT THE EVIDENCE WHICH IS NOW AVAILABLE
MAY NOT NECESSARILY REPRESENT ANY CAREFULLY CONSIDERED, STILL LESS
PREVAILING, VIEWPOINT UPON THE PRESENT ISSUES. 

MEASURED EVEN WITHIN THESE LIMITATIONS, THE COURT'S EVIDENCE FOR THIS
PERIOD IS REMARKABLY INCONCLUSIVE; THE COURT RELIES SIMPLY UPON THE
REJECTION BY CONGRESS OF LEGISLATION PROPOSED IN 1794, 1797, AND 1818,
AND UPON AN ISOLATED DICTUM FROM THE OPINION OF CHIEF JUSTICE MARSHALL
IN OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738.  THIS, AS WILL
APPEAR, IS ENTIRELY INADEQUATE TO SUPPORT THE COURT'S CONCLUSION,
PARTICULARLY IN LIGHT OF OTHER AND MORE PERTINENT EVIDENCE WHICH THE
COURT DOES NOT NOTICE. 

THE EXPATRIATION OF UNWILLING CITIZENS WAS APPARENTLY FIRST DISCUSSED
IN THE LENGTHY CONGRESSIONAL DEBATES OF 1794 AND 1795, WHICH CULMINATED
EVENTUALLY IN THE UNIFORM NATURALIZATION ACT OF 1795.  (FN5)  1 STAT.
414.  LITTLE CONTAINED IN THOSE DEBATES IS PERTINENT HERE.  THE PRESENT
QUESTION WAS CONSIDERED ONLY IN CONNECTION WITH AN AMENDMENT, OFFERED
BY CONGRESSMAN HILLHOUSE OF CONNECTICUT, WHICH PROVIDED THAT ANY
AMERICAN WHO ACQUIRED A FOREIGN CITIZENSHIP SHOULD NOT SUBSEQUENTLY BE
PERMITTED TO REPATRIATE IN THE UNITED STATES.  ALTHOUGH THIS OBSCURE
PROPOSAL SCARCELY SEEMS RELEVANT TO THE PRESENT ISSUES, IT WAS
APPARENTLY UNDERSTOOD AT LEAST BY SOME MEMBERS TO REQUIRE THE AUTOMATIC
EXPATRIATION OF AN AMERICAN WHO ACQUIRED A SECOND CITIZENSHIP.  ITS
DISCUSSION IN THE HOUSE CONSUMED SUBSTANTIALLY LESS THAN ONE DAY, AND
OF THIS DEBATE ONLY THE VIEWS OF TWO CONGRESSMEN, OTHER THAN HILLHOUSE,
WERE RECORDED BY THE ANNALS.  (FN6)  MURRAY OF MARYLAND, FOR REASONS
IMMATERIAL HERE, SUPPORTED THE PROPOSAL.  IN RESPONSE, BALDWIN OF
GEORGIA URGED THAT FOREIGN CITIZENSHIP WAS OFTEN CONFERRED ONLY AS A
MARK OF ESTEEM, AND THAT IT WOULD BE UNFAIR TO DEPRIVE OF HIS DOMESTIC
CITIZENSHIP AN AMERICAN HONORED IN THIS FASHION.  THERE IS NO
INDICATION THAT ANY MEMBER BELIEVED THE PROPOSAL TO BE FORBIDDEN BY THE
CONSTITUTION.  THE MEASURE WAS REJECTED BY THE HOUSE WITHOUT A REPORTED
VOTE, AND NO ANALOGOUS PROPOSAL WAS OFFERED IN THE SENATE.  INSOFAR AS
THIS BRIEF EXCHANGE IS PERTINENT HERE, IT ESTABLISHES AT MOST THAT TWO
OR MORE MEMBERS BELIEVED THE PROPOSAL BOTH CONSTITUTIONAL AND
DESIRABLE, AND THAT SOME LARGER NUMBER DETERMINED, FOR REASONS THAT ARE
UTTERLY OBSCURE, THAT IT SHOULD NOT BE ADOPTED. 

THE COURT NEXT RELIES UPON THE REJECTION OF PROPOSED LEGISLATION IN
1797.  THE BILL THERE AT ISSUE WOULD HAVE FORBIDDEN THE ENTRY OF
AMERICAN CITIZENS INTO THE SERVICE OF ANY FOREIGN STATE IN TIME OF WAR;
ITS SIXTH SECTION INCLUDED MACHINERY BY WHICH A CITIZEN MIGHT
VOLUNTARILY EXPATRIATE HIMSELF.  (FN7)  THE BILL CONTAINED NOTHING
WHICH WOULD HAVE EXPATRIATED UNWILLING CITIZENS, AND THE DEBATES DO NOT
INCLUDE ANY PRONOUNCEMENTS RELEVANT TO THAT ISSUE.  IT IS DIFFICULT TO
SEE HOW THE FAILURE OF THAT BILL MIGHT BE PROBATIVE HERE. 

THE DEBATES IN 1817 AND 1818, UPON WHICH THE COURT SO HEAVILY RELIES,
ARE SCARCELY MORE REVEALING.   DEBATE CENTERED UPON A BRIEF BILL  (FN8)
WHICH PROVIDED MERELY THAT ANY CITIZEN WHO WISHED TO RENOUNCE HIS
CITIZENSHIP MUST FIRST DECLARE HIS INTENTION IN OPEN COURT, AND
THEREAFTER DEPART THE UNITED STATES.  HIS CITIZENSHIP WOULD HAVE
TERMINATED AT THE MOMENT OF HIS RENUNCIATION.  THE BILL WAS DEBATED
ONLY IN THE HOUSE; NO PROPOSAL PERMITTING THE INVOLUNTARY EXPATRIATION
OF ANY CITIZEN WAS MADE OR CONSIDERED THERE OR IN THE SENATE. 
NONETHELESS, THE COURT SELECTS PORTIONS OF STATEMENTS MADE BY THREE
INDIVIDUAL CONGRESSMEN, WHO APPARENTLY DENIED THAT CONGRESS HAD
AUTHORITY TO ENACT LEGISLATION TO DEPRIVE UNWILLING CITIZENS OF THEIR
CITIZENSHIP.  THESE BRIEF DICTA ARE, BY THE MOST GENEROUS STANDARD,
INADEQUATE TO WARRANT THE COURT'S BROAD CONSTITUTIONAL CONCLUSION. 
MOREOVER, IT MUST BE OBSERVED THAT THEY WERE IN GREAT PART DEDUCTIONS
FROM CONSTITUTIONAL PREMISES WHICH HAVE SUBSEQUENTLY BEEN ENTIRELY
ABANDONED.  THEY STEMMED PRINCIPALLY FROM THE JEFFERSONIAN CONTENTION
THAT ALLEGIANCE IS OWED BY A CITIZEN FIRST TO HIS STATE, AND ONLY
THROUGH THE STATE TO THE FEDERAL GOVERNMENT.  THE SPOKESMEN UPON WHOM
THE COURT NOW RELIES SUPPOSED THAT CONGRESS WAS WITHOUT AUTHORITY TO
DISSOLVE CITIZENSHIP, SINCE "WE HAVE NO CONTROL" OVER "ALLEGIANCE TO
THE STATE ...  ."  (FN9)  THE BILL'S OPPONENTS URGED THAT "THE RELATION
TO THE STATE GOVERNMENT WAS THE BASIS OF THE RELATION TO THE GENERAL
GOVERNMENT, AND THEREFORE, AS LONG AS A MAN CONTINUES A CITIZEN OF A
STATE, HE MUST BE CONSIDERED A CITIZEN OF THE UNITED STATES."  (FN10)
ANY STATUTE, IT WAS THOUGHT, WHICH DISSOLVED FEDERAL CITIZENSHIP WHILE
A MAN REMAINED A CITIZEN OF A STATE "WOULD BE INOPERATIVE."  (FN11)
SURELY THE COURT DOES NOT REVIVE THIS ENTIRELY DISCREDITED DOCTRINE;
AND YET SO LONG AS IT DOES NOT, IT IS DIFFICULT TO SEE THAT ANY
SIGNIFICANT SUPPORT FOR THE RULING MADE TODAY MAY BE DERIVED FROM THE
STATEMENTS ON WHICH THE COURT RELIES.  TO SEVER THE STATEMENTS FROM
THEIR CONSTITUTIONAL PREMISES, AS THE COURT HAS APPARENTLY DONE, IS TO
TRANSFORM THE MEANING THESE EXPRESSIONS WERE INTENDED TO CONVEY. 

FINALLY, IT MUST BE REMEMBERED THAT THESE WERE MERELY THE VIEWS OF
THREE CONGRESSMEN; NOTHING IN THE DEBATES INDICATES THAT THEIR
CONSTITUTIONAL DOUBTS WERE SHARED BY ANY SUBSTANTIAL NUMBER OF THE
OTHER 67 MEMBERS WHO EVENTUALLY OPPOSED THE BILL.  THEY WERE PLAINLY
NOT ACCEPTED BY THE 58 MEMBERS WHO VOTED IN THE BILL'S FAVOR.  THE
BILL'S OPPONENTS REPEATEDLY URGED THAT, WHATEVER ITS CONSTITUTIONAL
VALIDITY, THE BILL WAS IMPRUDENT AND UNDESIRABLE.  PINDALL OF VIRGINIA,
FOR EXAMPLE, ASSERTED THAT A CITIZEN WHO EMPLOYED ITS PROVISIONS WOULD
HAVE "MOTIVES OF IDLENESS OR CRIMINALITY,"  (FN12)  AND THAT THE BILL
WOULD THUS CAUSE "MUCH EVIL."  (FN13)  MCLANE OF DELAWARE FEARED THAT
CITIZENS WOULD USE THE BILL TO ESCAPE SERVICE IN THE ARMED FORCES IN
TIME OF WAR; HE WARNED THAT THE BILL WOULD, MOREOVER, WEAKEN "THE LOVE
OF COUNTRY, SO NECESSARY TO INDIVIDUAL HAPPINESS AND NATIONAL
PROSPERITY."  (FN14)  HE EVEN URGED THAT "THE COMMISSION OF TREASON,
AND THE OBJECTS OF PLUNDER AND SPOIL, ARE EQUALLY LEGALIZED BY THIS
BILL."  (FN15)  LOWNDES OF SOUTH CAROLINA CAUTIONED THE HOUSE THAT
DIFFICULTIES MIGHT AGAIN ARISE WITH FOREIGN GOVERNMENTS OVER THE RIGHTS
OF SEAMEN IF THE BILL WERE PASSED.  (FN16)  GIVEN THESE VIGOROUS AND
REPEATED ARGUMENTS, IT IS QUITE IMPOSSIBLE TO ASSUME, AS THE COURT
APPARENTLY HAS, THAT ANY SUBSTANTIAL PORTION OF THE HOUSE WAS MOTIVATED
WHOLLY, OR EVEN IN PART, BY ANY PARTICULAR SET OF CONSTITUTIONAL
ASSUMPTIONS.  THESE THREE STATEMENTS MUST INSTEAD BE TAKEN AS
REPRESENTATIVE ONLY OF THE BELIEFS OF THREE MEMBERS, PREMISED CHIEFLY
UPON CONSTITUTIONAL DOCTRINES WHICH HAVE SUBSEQUENTLY BEEN REJECTED,
AND EXPRESSED IN A DEBATE IN WHICH THE PRESENT ISSUES WERE NOT DIRECTLY
INVOLVED. 

THE LAST PIECE OF EVIDENCE UPON WHICH THE COURT RELIES FOR THIS
PERIOD IS A BRIEF OBITER DICTUM FROM THE LENGTHY OPINION FOR THE COURT
IN OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738, 827, WRITTEN BY
MR. CHIEF JUSTICE MARSHALL.  THIS USE OF THE DICTUM IS ENTIRELY
UNPERSUASIVE, FOR ITS TERMS AND CONTEXT MAKE QUITE PLAIN THAT IT CANNOT
HAVE BEEN INTENDED TO REACH THE QUESTIONS PRESENTED HERE.  THE CENTRAL
ISSUE BEFORE THE COURT IN OSBORN WAS THE RIGHT OF THE BANK TO BRING ITS
SUIT FOR EQUITABLE RELIEF IN THE COURTS OF THE UNITED STATES.  IN
ARGUMENT, COUNSEL FOR OSBORN HAD ASSERTED THAT ALTHOUGH THE BANK HAD
BEEN CREATED BY THE LAWS OF THE UNITED STATES, IT DID NOT NECESSARILY
FOLLOW THAT ANY CAUSE INVOLVING THE BANK HAD ARISEN UNDER THOSE LAWS. 
COUNSEL URGED BY ANALOGY THAT THE NATURALIZATION OF AN ALIEN MIGHT AS
READILY BE SAID TO CONFER UPON THE NEW CITIZEN A RIGHT TO BRING ALL HIS
ACTIONS IN THE FEDERAL COURTS.  ID., AT 813-814.  NOT SURPRISINGLY, THE
COURT REJECTED THE ANALOGY, AND REMARKED THAT AN ACT OF NATURALIZATION
"DOES NOT PROCEED TO GIVE, TO REGULATE, OR TO PRESCRIBE HIS
CAPACITIES," SINCE THE CONSTITUTION DEMANDS THAT A NATURALIZED CITIZEN
MUST IN ALL RESPECTS STAND "ON THE FOOTING OF A NATIVE."  ID., AT 827. 
THE COURT PLAINLY MEANT NO MORE THAN THAT COUNSEL'S ANALOGY IS BROKEN
BY CONGRESS' INABILITY TO OFFER A NATURALIZED CITIZEN RIGHTS OR
CAPACITIES WHICH DIFFER IN ANY PARTICULAR FROM THOSE GIVEN TO A NATIVE
BORN CITIZEN BY BIRTH.  MR. JUSTICE JOHNSON'S DISCUSSION OF THE ANALOGY
IN DISSENT CONFIRMS THE COURT'S PURPOSE.  ID., AT 875-876.    ANY WIDER
MEANING, SO AS TO REACH THE QUESTIONS HERE, WRENCHES THE DICTUM FROM
ITS CONTEXT, AND ATTRIBUTES TO THE COURT AN OBSERVATION EXTRANEOUS EVEN
TO THE ANALOGY BEFORE IT.  MOREOVER, THE CONSTRUCTION GIVEN TO THE
DICTUM BY THE COURT TODAY REQUIRES THE ASSUMPTION THAT THE COURT IN
OSBORN MEANT TO DECIDE AN ISSUE WHICH HAD TO THAT MOMENT SCARCELY BEEN
DEBATED, TO WHICH COUNSEL IN OSBORN HAD NEVER REFERRED, AND UPON WHICH
NO CASE HAD EVER REACHED THE COURT.  ALL THIS, IT MUST BE RECALLED, IS
IN AN AREA OF THE LAW IN WHICH THE COURT HAD STEADFASTLY AVOIDED
UNNECESSARY COMMENT.  SEE, E.G., M'ILVAINE V. COXE'S LESSEE, 4 CRANCH
209, 212-213; THE SANTISSIMA TRINIDAD, 7 WHEAT.  283, 347-348.  BY ANY
STANDARD, THE DICTUM CANNOT PROVIDE MATERIAL ASSISTANCE TO THE COURT'S
POSITION IN THE PRESENT CASE.  (FN17) 

BEFORE TURNING TO THE EVIDENCE FROM THIS PERIOD WHICH HAS BEEN
OVERLOOKED BY THE COURT, ATTENTION MUST BE GIVEN AN INCIDENT TO WHICH
THE COURT REFERS, BUT UPON WHICH IT APPARENTLY PLACES RELATIVELY LITTLE
RELIANCE.  IN 1810, A PROPOSED THIRTEENTH AMENDMENT TO THE CONSTITUTION
WAS INTRODUCED INTO THE SENATE BY SENATOR REED OF MARYLAND; THE
AMENDMENT, AS SUBSEQUENTLY MODIFIED, PROVIDED THAT ANY CITIZEN WHO
ACCEPTED A TITLE OF NOBILITY, PENSION, OR EMOLUMENT FROM A FOREIGN
STATE, OR WHO MARRIED A PERSON OF ROYAL BLOOD, SHOULD "CEASE TO BE A
CITIZEN OF THE UNITED STATES."  (FN18)  THE PROPOSED AMENDMENT WAS, IN
A MODIFIED FORM, ACCEPTED BY BOTH HOUSES, AND SUBSEQUENTLY OBTAINED THE
APPROVAL OF ALL BUT ONE OF THE REQUISITE NUMBER OF STATES.  (FN19) I
HAVE FOUND NOTHING WHICH INDICATES WITH ANY CERTAINTY WHY SUCH A
PROVISION SHOULD THEN HAVE BEEN THOUGHT NECESSARY,  (FN20)  BUT TWO
REASONS SUGGEST THEMSELVES FOR THE USE OF A CONSTITUTIONAL AMENDMENT. 
FIRST, THE PROVISIONS MAY HAVE BEEN INTENDED IN PART AS A SANCTION FOR
ART. I, SEC. 9, CL. 8; (FN21) IT MAY THEREFORE HAVE BEEN THOUGHT MORE
APPROPRIATE THAT IT BE PLACED WITHIN THE CONSTITUTION ITSELF.  SECOND,
A STUDENT OF EXPATRIATION ISSUES IN THIS PERIOD HAS DISMISSED THE
PREFERENCE FOR AN AMENDMENT WITH THE EXPLANATION THAT "THE DOMINANT
JEFFERSONIAN VIEW HELD THAT CITIZENSHIP WAS WITHIN THE JURISDICTION OF
THE STATES; A STATUTE WOULD THUS HAVE BEEN A FEDERAL USURPATION OF
STATE POWER."  (FN22)  THIS SECOND EXPLANATION IS FULLY SUBSTANTIATED
BY THE DEBATE IN 1818; THE STATEMENTS FROM THAT DEBATE SET OUT IN THE
OPINION FOR THE COURT WERE, AS I HAVE NOTED, BOTTOMED ON THE REASONING
THAT SINCE ALLEGIANCE GIVEN BY AN INDIVIDUAL TO A STATE COULD NOT BE
DISSOLVED BY CONGRESS, A FEDERAL STATUTE COULD NOT REGULATE
EXPATRIATION.  IT SURELY FOLLOWS THAT THIS "OBSCURE ENTERPRISE" (FN23)
IN 1810, MOTIVATED BY NOW DISCREDITED CONSTITUTIONAL PREMISES, CANNOT
OFFER ANY SIGNIFICANT GUIDANCE FOR SOLUTION OF THE IMPORTANT ISSUES NOW
BEFORE US. 

THE MOST PERTINENT EVIDENCE FROM THIS PERIOD UPON THESE QUESTIONS HAS
BEEN VIRTUALLY OVERLOOKED BY THE COURT.  TWICE IN THE TWO YEARS
IMMEDIATELY PRIOR TO ITS PASSAGE OF THE FOURTEENTH AMENDMENT, CONGRESS
EXERCISED THE VERY AUTHORITY WHICH THE COURT NOW SUGGESTS THAT IT
SHOULD HAVE RECOGNIZED WAS ENTIRELY LACKING.  IN EACH CASE, A BILL WAS
DEBATED AND ADOPTED BY BOTH HOUSES WHICH INCLUDED PROVISIONS TO
EXPATRIATE UNWILLING CITIZENS. 

IN THE SPRING AND SUMMER OF 1864, BOTH HOUSES DEBATED INTENSIVELY THE
WADE-DAVIS BILL TO PROVIDE RECONSTRUCTION GOVERNMENTS FOR THE STATES
WHICH HAD SECEDED TO FORM THE CONFEDERACY.  AMONG THE BILL'S PROVISIONS
WAS SEC 14, BY WHICH "EVERY PERSON WHO SHALL HEREAFTER HOLD OR EXERCISE
ANY OFFICE  ...  IN THE REBEL SERVICE  ...  IS HEREBY DECLARED NOT TO
BE A CITIZEN OF THE UNITED STATES."  (FN24)  MUCH OF THE DEBATE UPON
THE BILL DID NOT, OF COURSE, CENTER ON THE EXPATRIATION PROVISION,
ALTHOUGH IT CERTAINLY DID NOT ESCAPE CRITICAL ATTENTION.  (FN25)
NONETHELESS, I HAVE NOT FOUND ANY INDICATION IN THE DEBATES IN EITHER
HOUSE THAT IT WAS SUPPOSED THAT CONGRESS WAS WITHOUT AUTHORITY TO
DEPRIVE AN UNWILLING CITIZEN OF HIS CITIZENSHIP.  THE BILL WAS NOT
SIGNED BY PRESIDENT LINCOLN BEFORE THE ADJOURNMENT OF CONGRESS, AND
THUS FAILED TO BECOME LAW, BUT A SUBSEQUENT STATEMENT ISSUED BY LINCOLN
MAKES QUITE PLAIN THAT HE WAS NOT TROUBLED BY ANY DOUBTS OF THE
CONSTITUTIONALITY OF SEC 14.  (FN26)  PASSAGE OF THE WADE-DAVIS BILL OF
ITSELF "SUFFICES TO DESTROY THE NOTION THAT THE MEN WHO DRAFTED THE
FOURTEENTH AMENDMENT FELT THAT CITIZENSHIP WAS AN 'ABSOLUTE.'"  (FN27) 

TWELVE MONTHS LATER, AND LESS THAN A YEAR BEFORE ITS PASSAGE OF THE
FOURTEENTH AMENDMENT, CONGRESS ADOPTED A SECOND MEASURE WHICH INCLUDED
PROVISIONS THAT PERMITTED THE EXPATRIATION OF UNWILLING CITIZENS. 
THE MILITARY SERVICE OF THE UNITED STATES "SHALL BE DEEMED AND TAKEN TO
HAVE VOLUNTARILY RELINQUISHED AND FORFEITED THEIR RIGHTS OF CITIZENSHIP
AND THEIR RIGHTS TO BECOME CITIZENS  ...  ."  (FN28)  THE SAME SECTION
EXTENDED THESE DISABILITIES TO PERSONS WHO DEPARTED THE UNITED STATES
WITH INTENT TO AVOID "DRAFT INTO THE MILITARY OR NAVAL SERVICE  ...
."  (FN29)  THE BITTERNESS OF WAR DID NOT CAUSE CONGRESS HERE TO
NEGLECT THE REQUIREMENTS OF THE CONSTITUTION; FOR IT WAS URGED IN BOTH
HOUSES THAT SEC. 21 AS WRITTEN WAS EX POST FACTO, AND THUS WAS
CONSTITUTIONALLY IMPERMISSIBLE.  (FN30) SIGNIFICANTLY, HOWEVER, IT WAS
NEVER SUGGESTED IN EITHER DEBATE THAT EXPATRIATION WITHOUT A CITIZEN'S
CONSENT LAY BEYOND CONGRESS' AUTHORITY.  MEMBERS OF BOTH HOUSES HAD
APPARENTLY EXAMINED INTENSIVELY THE SECTION'S CONSTITUTIONAL VALIDITY,
AND YET HAD BEEN UNDISTURBED BY THE MATTERS UPON WHICH THE COURT NOW
RELIES. 

SOME DOUBT, BASED ON THE PHRASE "RIGHTS OF CITIZENSHIP," HAS SINCE
BEEN EXPRESSED  (FN31) THAT SEC 21 WAS INTENDED TO REQUIRE ANY MORE
THAN DISFRANCHISEMENT, BUT THIS IS, FOR SEVERAL REASONS, UNCONVINCING. 
FIRST, SEC 21 ALSO EXPLICITLY PROVIDED THAT PERSONS SUBJECT TO ITS
PROVISIONS SHOULD NOT THEREAFTER EXERCISE VARIOUS "RIGHTS OF CITIZENS";
(FN32)  IF THE SECTION HAD NOT BEEN INTENDED TO CAUSE EXPATRIATION, IT
IS DIFFICULT TO SEE WHY THESE ADDITIONAL PROVISIONS WOULD HAVE BEEN
THOUGHT NECESSARY.  SECOND, THE EXECUTIVE AUTHORITIES OF THE UNITED
STATES AFTERWARDS CONSISTENTLY CONSTRUED THE SECTION AS CAUSING
EXPATRIATION.  (FN33)  THIRD, THE SECTION WAS APPARENTLY UNDERSTOOD BY
VARIOUS COURTS TO RESULT IN EXPATRIATION; IN PARTICULAR, MR. JUSTICE
STRONG, WHILE A MEMBER OF THE SUPREME COURT OF PENNSYLVANIA, CONSTRUED
THE SECTION TO CAUSE A "FORFEITURE OF CITIZENSHIP," HUBER V. REILY, 53
PA. 112, 118, AND ALTHOUGH THIS POINT WAS NOT EXPRESSLY REACHED, HIS
GENERAL UNDERSTANDING OF THE STATUTE WAS APPROVED BY THIS COURT IN
KURTZ V. MOFFITT, 115 U.S. 487, 501.  FINALLY, CONGRESS IN 1867
APPROVED AN EXEMPTION FROM THE SECTION'S PROVISIONS FOR THOSE WHO HAD
DESERTED AFTER THE TERMINATION OF GENERAL HOSTILITIES, AND THE STATUTE
AS ADOPTED SPECIFICALLY DESCRIBED THE DISABILITY FROM WHICH EXEMPTION
WAS GIVEN AS A "LOSS OF HIS CITIZENSHIP."  15 STAT. 14.  THE SAME
CHOICE OF PHRASE OCCURS IN THE PERTINENT DEBATES.  (FN34) 

IT THUS APPEARS THAT CONGRESS HAD TWICE, IMMEDIATELY BEFORE ITS
PASSAGE OF THE FOURTEENTH AMENDMENT, UNEQUIVOCALLY AFFIRMED ITS BELIEF
THAT IT HAD AUTHORITY TO EXPATRIATE AN UNWILLING CITIZEN. 

THE PERTINENT EVIDENCE FOR THE PERIOD PRIOR TO THE ADOPTION OF THE
FOURTEENTH AMENDMENT CAN THEREFORE BE SUMMARIZED AS FOLLOWS.  THE
COURT'S CONCLUSION TODAY IS SUPPORTED ONLY BY THE STATEMENTS,
ASSOCIATED AT LEAST IN PART WITH A NOW ABANDONED VIEW OF CITIZENSHIP,
OF THREE INDIVIDUAL CONGRESSMEN, AND BY THE AMBIGUOUS AND INAPPOSITE
DICTUM FROM OSBORN.  INCONSISTENT WITH THE COURT'S POSITION ARE
STATEMENTS FROM INDIVIDUAL CONGRESSMEN IN 1794, AND CONGRESS' PASSAGE
IN 1864 AND 1865 OF LEGISLATION WHICH EXPRESSLY AUTHORIZED THE
EXPATRIATION OF UNWILLING CITIZENS.  IT MAY BE THAT LEGISLATION ADOPTED
IN THE HEAT OF WAR SHOULD BE DISCOUNTED IN PART BY ITS ORIGINS, BUT,
EVEN IF THIS IS DONE, IT IS SURELY PLAIN THAT THE COURT'S CONCLUSION IS
ENTIRELY UNWARRANTED BY THE AVAILABLE HISTORICAL EVIDENCE FOR THE
PERIOD PRIOR TO THE PASSAGE OF THE FOURTEENTH AMENDMENT.  THE EVIDENCE
SUGGESTS, TO THE CONTRARY, THAT CONGRESS IN 1865 UNDERSTOOD THAT IT HAD
AUTHORITY, AT LEAST IN SOME CIRCUMSTANCES, TO DEPRIVE A CITIZEN OF HIS
NATIONALITY. 

                                             II. 

THE EVIDENCE WITH WHICH THE COURT SUPPORTS ITS THESIS THAT THE
CITIZENSHIP CLAUSE OF THE FOURTEENTH AMENDMENT WAS INTENDED TO LAY AT
REST ANY DOUBTS OF CONGRESS' INABILITY TO EXPATRIATE WITHOUT THE
CITIZEN'S CONSENT IS NO MORE PERSUASIVE.  THE EVIDENCE CONSISTS ALMOST
EXCLUSIVELY OF TWO BRIEF AND GENERAL QUOTATIONS FROM HOWARD OF
MICHIGAN, THE SPONSOR OF THE CITIZENSHIP CLAUSE IN THE SENATE, AND OF A
STATEMENT MADE IN A DEBATE IN THE HOUSE OF REPRESENTATIVES IN 1868 BY
VAN TRUMP OF OHIO.  MEASURED MOST GENEROUSLY, THIS EVIDENCE WOULD BE
INADEQUATE TO SUPPORT THE IMPORTANT CONSTITUTIONAL CONCLUSION
PRESUMABLY DRAWN IN LARGE PART FROM IT BY THE COURT; BUT, AS WILL BE
SHOWN, OTHER RELEVANT EVIDENCE INDICATES THAT THE COURT PLAINLY HAS
MISTAKEN THE PURPOSES OF THE CLAUSE'S DRAFTSMEN. 

THE AMENDMENT AS INITIALLY APPROVED BY THE HOUSE CONTAINED NOTHING
WHICH DESCRIBED OR DEFINED CITIZENSHIP.  (FN35)  THE ISSUE DID NOT AS
SUCH EVEN ARISE IN THE HOUSE DEBATES; IT WAS APPARENTLY ASSUMED THAT
NEGROES WERE CITIZENS, AND THAT IT WAS NECESSARY ONLY TO GUARANTEE TO
THEM THE RIGHTS WHICH SPRANG FROM CITIZENSHIP.  IT IS QUITE IMPOSSIBLE
TO DERIVE FROM THESE DEBATES ANY INDICATION THAT THE HOUSE WISHED TO
DENY ITSELF THE AUTHORITY IT HAD EXERCISED IN 1864 AND 1865; SO FAR AS
THE HOUSE IS CONCERNED, IT SEEMS THAT NO ISSUES OF CITIZENSHIP WERE "AT
ALL INVOLVED."  (FN36) 

IN THE SENATE, HOWEVER, IT WAS EVIDENTLY FEARED THAT UNLESS
CITIZENSHIP WERE DEFINED, OR SOME MORE GENERAL CLASSIFICATION
SUBSTITUTED, FREEDMEN MIGHT, ON THE PREMISE THAT THEY WERE NOT
CITIZENS, BE EXCLUDED FROM THE AMENDMENT'S PROTECTION.  SENATOR STEWART
THUS OFFERED AN AMENDMENT WHICH WOULD HAVE INSERTED INTO SEC. 1 A
DEFINITION OF CITIZENSHIP, (FN37) AND SENATOR WADE URGED AS AN
ALTERNATIVE THE ELIMINATION OF THE TERM "CITIZEN" FROM THE AMENDMENT'S
FIRST SECTION.  (FN38)  AFTER A CAUCUS OF THE CHIEF SUPPORTERS OF THE
AMENDMENT, SENATOR HOWARD ANNOUNCED ON THEIR BEHALF THAT THEY FAVORED
THE ADDITION OF THE PRESENT CITIZENSHIP CLAUSE.  (FN39) 

THE DEBATE UPON THE CLAUSE WAS ESSENTIALLY CURSORY IN BOTH HOUSES,
BUT THERE ARE SEVERAL CLEAR INDICATIONS OF ITS INTENDED EFFECT.  ITS
SPONSORS EVIDENTLY SHARED THE FEARS OF SENATORS STEWART AND WADE THAT
UNLESS CITIZENSHIP WERE DEFINED, FREEDMEN MIGHT, UNDER THE REASONING OF
THE DRED SCOTT DECISION,  (FN40)  BE EXCLUDED BY THE COURTS FROM THE
SCOPE OF THE AMENDMENT.  IT WAS AGREED THAT, SINCE THE "COURTS HAVE
STUMBLED ON THE SUBJECT," IT WOULD BE PRUDENT TO REMOVE THE "DOUBT
THROWN OVER" IT.  (FN41)  THE CLAUSE WOULD ESSENTIALLY OVERRULE DRED
SCOTT, AND PLACE BEYOND QUESTION THE FREEDMEN'S RIGHT OF CITIZENSHIP
BECAUSE OF BIRTH.  IT WAS SUGGESTED, MOREOVER, THAT IT WOULD, BY
CREATING A BASIS FOR FEDERAL CITIZENSHIP WHICH WAS INDISPUTABLY
INDEPENDENT OF STATE CITIZENSHIP, PRECLUDE ANY EFFORT BY STATE
LEGISLATURES TO CIRCUMVENT THE AMENDMENT BY DENYING FREEDMEN STATE
CITIZENSHIP.  (FN42)  NOTHING IN THE DEBATES, HOWEVER, SUPPORTS THE
COURT'S ASSERTION THAT THE CLAUSE WAS INTENDED TO DENY CONGRESS ITS
AUTHORITY TO EXPATRIATE UNWILLING CITIZENS.  THE EVIDENCE INDICATES
THAT ITS DRAFTSMEN INSTEAD EXPECTED THE CLAUSE ONLY TO DECLARE
UNRESERVEDLY TO WHOM CITIZENSHIP INITIALLY ADHERED, THUS OVERTURNING
THE RESTRICTIONS BOTH OF DRED SCOTT AND OF THE DOCTRINE OF PRIMARY
STATE CITIZENSHIP, WHILE PRESERVING CONGRESS' AUTHORITY TO PRESCRIBE
THE METHODS AND TERMS OF EXPATRIATION. 

THE NARROW, ESSENTIALLY DEFINITIONAL PURPOSE OF THE CITIZENSHIP
CLAUSE IS REFLECTED IN THE CLEAR DECLARATIONS IN THE DEBATES THAT THE
CLAUSE WOULD NOT REVISE THE PREVAILING INCIDENTS OF CITIZENSHIP. 
SENATOR HENDERSON OF MISSOURI THUS STATED SPECIFICALLY HIS
UNDERSTANDING THAT THE "SECTION WILL LEAVE CITIZENSHIP WHERE IT NOW
IS."  (FN43)  SENATOR HOWARD, IN THE FIRST OF THE STATEMENTS RELIED
UPON, IN PART, BY THE COURT, SAID QUITE UNRESERVEDLY THAT "THIS
AMENDMENT (THE CITIZENSHIP CLAUSE) WHICH I HAVE OFFERED IS SIMPLY
DECLARATORY OF WHAT I REGARD AS THE LAW OF THE LAND ALREADY, THAT EVERY
PERSON BORN WITHIN THE LIMITS OF THE UNITED STATES, AND SUBJECT TO
THEIR JURISDICTION, IS  ...  A CITIZEN OF THE UNITED STATES."  (FN44)
HENDERSON HAD BEEN PRESENT AT THE SENATE'S CONSIDERATION BOTH OF THE
WADE-DAVIS BILL AND OF THE ENROLLMENT ACT, AND HAD VOTED AT LEAST FOR
THE WADE-DAVIS BILL.  (FN45)  HOWARD WAS A MEMBER OF THE SENATE WHEN
BOTH BILLS WERE PASSED, AND HAD ACTIVELY PARTICIPATED IN THE DEBATES
UPON THE ENROLLMENT ACT.  (FN46) ALTHOUGH HIS VIEWS OF THE TWO
EXPATRIATION MEASURES WERE NOT SPECIFICALLY RECORDED, HOWARD CERTAINLY
NEVER EXPRESSED TO THE SENATE ANY DOUBT EITHER OF THEIR WISDOM OR OF
THEIR CONSTITUTIONALITY.  IT WOULD BE EXTRAORDINARY IF THESE PROMINENT
SUPPORTERS OF THE CITIZENSHIP CLAUSE COULD HAVE IMAGINED, AS THE
COURT'S CONSTRUCTION OF THE CLAUSE NOW DEMANDS, THAT THE CLAUSE WAS
ONLY "DECLARATORY" OF THE LAW "WHERE IT NOW IS," AND YET THAT IT WOULD
ENTIRELY WITHDRAW A POWER TWICE RECENTLY EXERCISED BY CONGRESS IN THEIR
PRESENCE.    THERE IS, HOWEVER, EVEN MORE POSITIVE EVIDENCE THAT THE
COURT'S CONSTRUCTION OF THE CLAUSE IS NOT THAT INTENDED BY ITS
DRAFTSMEN.  BETWEEN THE TWO BRIEF STATEMENTS FROM SENATOR HOWARD RELIED
UPON BY THE COURT, HOWARD, IN RESPONSE TO A QUESTION, SAID THE
FOLLOWING: 

"I TAKE IT FOR GRANTED THAT AFTER A MAN BECOMES A CITIZEN OF THE
UNITED STATES UNDER THE CONSTITUTION HE CANNOT CEASE TO BE CITIZEN,
EXCEPT BY EXPATRIATION OR THE COMMISSION OF SOME CRIME BY WHICH HIS
CITIZENSHIP SHALL BE FORFEITED."  (FN47) 

IT WOULD BE DIFFICULT TO IMAGINE A MORE UNQUALIFIED REJECTION OF THE
COURT'S POSITION; SENATOR HOWARD, THE CLAUSE'S SPONSOR, VERY PLAINLY
BELIEVED THAT IT WOULD LEAVE UNIMPAIRED CONGRESS' POWER TO DEPRIVE
UNWILLING CITIZENS OF THEIR CITIZENSHIP.  (FN48) 

ADDITIONAL CONFIRMATION OF THE EXPECTATIONS OF THE CLAUSE'S DRAFTSMEN
MAY BE FOUND IN THE LEGISLATIVE HISTORY, WHOLLY OVERLOOKED BY THE
COURT, OF THE ACT FOR THE RELIEF OF CERTAIN SOLDIERS AND SAILORS,
ADOPTED IN 1867.  15 STAT. 14.  THE ACT, DEBATED BY CONGRESS WITHIN 12
MONTHS OF ITS PASSAGE OF THE FOURTEENTH AMENDMENT, PROVIDED AN
EXCEPTION FROM THE PROVISIONS OF SEC. 21 OF THE ENROLLMENT ACT OF 1865
FOR THOSE WHO HAD DESERTED FROM THE UNION FORCES AFTER THE TERMINATION
OF GENERAL HOSTILITIES.  HAD THE CITIZENSHIP CLAUSE BEEN UNDERSTOOD TO
HAVE THE EFFECT NOW GIVEN BY THE COURT, SURELY THIS WOULD HAVE BEEN
CLEARLY REFLECTED IN THE DEBATES; MEMBERS WOULD AT LEAST HAVE NOTED
THAT, UPON FINAL APPROVAL OF THE AMENDMENT, WHICH HAD ALREADY OBTAINED
THE APPROVAL OF 21 STATES, SEC. 21 WOULD NECESSARILY BE INVALID. 
NOTHING OF THE SORT OCCURRED; IT WAS ARGUED BY SOME MEMBERS THAT SEC.
21 WAS IMPRUDENT AND EVEN UNFAIR, (FN49) BUT CONGRESS EVIDENTLY DID NOT
SUPPOSE THAT IT WAS, OR WOULD BE, UNCONSTITUTIONAL.  CONGRESS SIMPLY
FAILED TO ATTRIBUTE TO THE CITIZENSHIP CLAUSE THE CONSTITUTIONAL
CONSEQUENCES NOW DISCOVERED BY THE COURT.  (FN50) 

NONETHELESS, THE COURT URGES THAT THE DEBATES WHICH CULMINATED IN THE
EXPATRIATION ACT OF 1868 MATERIALLY SUPPORT ITS UNDERSTANDING OF THE
PURPOSES OF THE CITIZENSHIP CLAUSE.  THIS IS, FOR SEVERAL REASONS,
WHOLLY UNCONVINCING.  INITIALLY, IT SHOULD BE REMEMBERED THAT
DISCUSSION OF THE ACT BEGAN IN COMMITTEE SOME SIX MONTHS AFTER THE
PASSAGE OF THE RELIEF ACT OF 1867, BY THE SECOND SESSION OF THE
CONGRESS WHICH HAD APPROVED THE RELIEF ACT; THE COURT'S INTERPRETATION
OF THE HISTORY OF THE EXPATRIATION ACT THUS DEMANDS, AT THE OUTSET, THE
SUPPOSITION THAT A VIEW OF THE CITIZENSHIP CLAUSE ENTIRELY ABSENT IN
JULY HAD APPEARED VIVIDLY BY THE FOLLOWING JANUARY.  FURTHER, THE
PURPOSES AND BACKGROUND OF THE ACT SHOULD NOT BE FORGOTTEN.  THE
DEBATES WERE STIMULATED BY REPEATED REQUESTS BOTH FROM PRESIDENT ANDREW
JOHNSON AND FROM THE PUBLIC THAT CONGRESS ASSERT THE RIGHTS OF
NATURALIZED AMERICANS AGAINST THE DEMANDS OF THEIR FORMER COUNTRIES. 
(FN51)  THE ACT AS FINALLY ADOPTED WAS THUS INTENDED "PRIMARILY TO
ASSAIL THE CONDUCT OF THE BRITISH GOVERNMENT (CHIEFLY FOR ITS ACTS
TOWARD NATURALIZED AMERICANS RESIDENT IN IRELAND) AND TO DECLARE THE
RIGHT OF NATURALIZED AMERICANS TO RENOUNCE THEIR NATIVE ALLEGIANCE";
(FN52) ACCORDINGLY, VERY LITTLE OF THE LENGTHY DEBATE WAS IN THE LEAST
PERTINENT TO THE PRESENT ISSUES.  SEVERAL MEMBERS DID MAKE PLAIN,
THROUGH THEIR PROPOSED AMENDMENTS TO THE BILL OR THEIR INTERSTITIAL
COMMENTS, THAT THEY UNDERSTOOD CONGRESS TO HAVE AUTHORITY TO EXPATRIATE
UNWILLING CITIZENS, (FN53) BUT IN GENERAL BOTH THE ISSUES NOW BEFORE
THE COURT AND QUESTIONS OF THE IMPLICATIONS OF THE CITIZENSHIP CLAUSE
WERE VIRTUALLY UNTOUCHED IN THE DEBATES. 

NEVERTHELESS, THE COURT, IN ORDER TO ESTABLISH THAT CONGRESS
UNDERSTOOD THAT THE CITIZENSHIP CLAUSE DENIED IT SUCH AUTHORITY,
FASTENS PRINCIPALLY UPON THE SPEECHES OF CONGRESSMAN VAN TRUMP OF
OHIO.  VAN TRUMP SPONSORED, AS ONE OF MANY SIMILAR AMENDMENTS OFFERED
TO THE BILL BY VARIOUS MEMBERS, A PROPOSAL TO CREATE FORMAL MACHINERY
BY WHICH A CITIZEN MIGHT VOLUNTARILY RENOUNCE HIS CITIZENSHIP.  (FN54)
VAN TRUMP HIMSELF SPOKE AT LENGTH IN SUPPORT OF HIS PROPOSAL; HIS
PRINCIPAL SPEECH CONSISTED CHIEFLY OF A DETAILED EXAMINATION OF THE
DEBATES AND JUDICIAL DECISIONS PERTINENT TO THE ISSUES OF VOLUNTARY
RENUNCIATION OF CITIZENSHIP.  (FN55)  NEVER IN HIS CATALOG OF RELEVANT
MATERIALS DID VAN TRUMP EVEN MENTION THE CITIZENSHIP CLAUSE OF THE
FOURTEENTH AMENDMENT; (FN56) SO FAR AS MAY BE SEEN FROM HIS COMMENTS ON
THE HOUSE FLOOR, VAN TRUMP EVIDENTLY SUPPOSED THE CLAUSE TO BE ENTIRELY
IMMATERIAL TO THE ISSUES OF EXPATRIATION.  THIS IS COMPLETELY
CHARACTERISTIC OF THE DEBATE IN BOTH HOUSES; EVEN ITS DRAFTSMEN AND
PRINCIPAL SUPPORTERS, SUCH AS SENATOR HOWARD, PERMITTED THE CITIZENSHIP
CLAUSE TO PASS UNNOTICED.  THE CONCLUSION SEEMS INESCAPABLE THAT THE
DISCUSSIONS SURROUNDING THE ACT OF 1868 CAST ONLY THE MOST MINIMAL
LIGHT, IF INDEED ANY, UPON THE PURPOSES OF THE CLAUSE, AND THAT THE
COURT'S EVIDENCE FROM THE DEBATES IS, BY ANY STANDARD, EXCEEDINGLY
SLIGHT.  (FN57) 

THERE IS, MOREOVER, STILL FURTHER EVIDENCE, OVERLOOKED BY THE COURT,
WHICH CONFIRMS YET AGAIN THAT THE COURT'S VIEW OF THE INTENDED PURPOSES
OF THE CITIZENSHIP CLAUSE IS MISTAKEN.  WHILE THE DEBATE ON THE ACT OF
1868 WAS STILL IN PROGRESS, NEGOTIATIONS WERE COMPLETED ON THE FIRST OF
A SERIES OF BILATERAL EXPATRIATION TREATIES, WHICH "INITIATED THIS
COUNTRY'S POLICY OF AUTOMATIC DIVESTMENT OF CITIZENSHIP FOR SPECIFIED
CONDUCT AFFECTING OUR FOREIGN RELATIONS."  PEREZ V. BROWNELL, SUPRA, AT
48.   SEVEN SUCH TREATIES WERE NEGOTIATED IN 1868 AND 1869 ALONE;
(FN58) EACH WAS RATIFIED BY THE SENATE.   IF, AS THE COURT NOW
SUGGESTS, IT WAS "ABUNDANTLY CLEAR" TO CONGRESS IN 1868 THAT THE
CITIZENSHIP CLAUSE HAD TAKEN FROM ITS HANDS THE POWER OF EXPATRIATION,
IT IS QUITE DIFFICULT TO UNDERSTAND WHY THESE CONVENTIONS WERE
NEGOTIATED, OR WHY, ONCE NEGOTIATED, THEY WERE NOT IMMEDIATELY
REPUDIATED BY THE SENATE.  (FN59) 

FURTHER, THE EXECUTIVE AUTHORITIES OF THE UNITED STATES REPEATEDLY
ACTED, IN THE 40 YEARS FOLLOWING 1868, UPON THE PREMISE THAT A CITIZEN
MIGHT AUTOMATICALLY BE DEEMED TO HAVE EXPATRIATED HIMSELF BY CONDUCT
SHORT OF A VOLUNTARY RENUNCIATION OF CITIZENSHIP; INDIVIDUAL CITIZENS
WERE, AS THE COURT INDICATED IN PEREZ, REGULARLY HELD ON THIS BASIS TO
HAVE LOST THEIR CITIZENSHIP.  INTERESTED MEMBERS OF CONGRESS, AND
OTHERS, COULD SCARCELY HAVE BEEN UNAWARE OF THE PRACTICE; AS EARLY AS
1874, PRESIDENT GRANT URGED CONGRESS IN HIS SIXTH ANNUAL MESSAGE TO
SUPPLEMENT THE ACT OF 1868 WITH A STATUTORY DECLARATION OF THE ACTS BY
WHICH A CITIZEN MIGHT "BE DEEMED TO HAVE RENOUNCED OR TO HAVE LOST HIS
CITIZENSHIP."  (FN60)  IT WAS THE NECESSITY TO PROVIDE A MORE
SATISFACTORY BASIS FOR THIS PRACTICE THAT LED FIRST TO THE APPOINTMENT
OF THE CITIZENSHIP BOARD OF 1906, AND SUBSEQUENTLY TO THE NATIONALITY
ACTS OF 1907 AND 1940.  THE ADMINISTRATIVE PRACTICE IN THIS PERIOD WAS
DESCRIBED BY THE COURT IN PEREZ; IT SUFFICES HERE MERELY TO EMPHASIZE
THAT THE COURT TODAY HAS NOT VENTURED TO EXPLAIN WHY THE CITIZENSHIP
CLAUSE SHOULD, SO SHORTLY AFTER ITS ADOPTION, HAVE BEEN, UNDER THE
COURT'S CONSTRUCTION, SO SERIOUSLY MISUNDERSTOOD. 

IT SEEMS TO ME APPARENT THAT THE HISTORICAL EVIDENCE WHICH THE COURT
IN PART RECITES IS WHOLLY INCONCLUSIVE, AS INDEED THE COURT RECOGNIZES;
THE EVIDENCE, TO THE CONTRARY, IRRESISTIBLY SUGGESTS THAT THE DRAFTSMEN
OF THE FOURTEENTH AMENDMENT DID NOT INTEND, AND COULD NOT HAVE
EXPECTED, THAT THE CITIZENSHIP CLAUSE WOULD DEPRIVE CONGRESS OF
AUTHORITY WHICH IT HAD, TO THEIR KNOWLEDGE, ONLY RECENTLY TWICE
EXERCISED.  THE CONSTRUCTION DEMANDED BY THE PERTINENT HISTORICAL
EVIDENCE, AND ENTIRELY CONSISTENT WITH THE CLAUSE'S TERMS AND PUPOSES,
IS INSTEAD THAT IT DECLARES TO WHOM CITIZENSHIP, AS A CONSEQUENCE
EITHER OF BIRTH OR OF NATURALIZATION, INITIALLY ATTACHES.  THE CLAUSE
THUS SERVED AT THE TIME OF ITS PASSAGE BOTH TO OVERTURN DRED SCOTT AND
TO PROVIDE A FOUNDATION FOR FEDERAL CITIZENSHIP ENTIRELY INDEPENDENT OF
STATE CITIZENSHIP; IN THIS FASHION IT EFFECTIVELY GUARANTEED THAT THE
AMENDMENT'S PROTECTION WOULD NOT SUBSEQUENTLY BE WITHHELD FROM THOSE
FOR WHOM IT WAS PRINCIPALLY INTENDED.  BUT NOTHING IN THE HISTORY,
PURPOSES, OR LANGUAGE OF THE CLAUSE SUGGESTS THAT IT FORBIDS CONGRESS
IN ALL CIRCUMSTANCES TO WITHDRAW THE CITIZENSHIP OF AN UNWILLING
CITIZEN.  TO THE CONTRARY, IT WAS EXPECTED, AND SHOULD NOW BE
UNDERSTOOD, TO LEAVE CONGRESS AT LIBERTY TO EXPATRIATE A CITIZEN IF THE
EXPATRIATION IS AN APPROPRIATE EXERCISE OF A POWER OTHERWISE GIVEN TO
CONGRESS BY THE CONSTITUTION, AND IF THE METHODS AND TERMS OF
EXPATRIATION ADOPTED BY CONGRESS ARE CONSISTENT WITH THE CONSTITUTION'S
OTHER RELEVANT COMMANDS. 

THE CITIZENSHIP CLAUSE THUS NEITHER DENIES NOR PROVIDES TO CONGRESS
ANY POWER OF EXPATRIATION; ITS CONSEQUENCES ARE, FOR PRESENT PURPOSES,
EXHAUSTED BY ITS DECLARATION OF THE CLASSES OF INDIVIDUALS TO WHOM
CITIZENSHIP INITIALLY ATTACHES.  ONCE OBTAINED, CITIZENSHIP IS OF
COURSE PROTECTED FROM ARBITRARY WITHDRAWAL BY THE CONSTRAINTS PLACED
AROUND CONGRESS' POWERS BY THE CONSTITUTION; IT IS NOT PROPER TO CREATE
FROM THE CITIZENSHIP CLAUSE AN ADDITIONAL, AND ENTIRELY UNWARRANTED,
RESTRICTION UPON LEGISLATIVE AUTHORITY.  THE CONSTRUCTION NOW PLACED ON
THE CITIZENSHIP CLAUSE RESTS, IN THE LAST ANALYSIS, SIMPLY ON THE
COURT'S IPSE DIXIT, EVINCING LITTLE MORE, IT IS QUITE APPARENT, THAN
THE PRESENT MAJORITY'S OWN DISTASTE FOR THE EXPATRIATION POWER. 

I BELIEVE THAT PEREZ WAS RIGHTLY DECIDED, AND ON ITS AUTHORITY WOULD
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  IT IS APPROPRIATE TO NOTE AT THE OUTSET WHAT APPEARS TO BE A
FUNDAMENTAL AMBIGUITY IN THE OPINION FOR THE COURT.  THE COURT AT ONE
POINT INTIMATES, BUT DOES NOT EXPRESSLY DECLARE, THAT IT ADOPTS THE
REASONING OF THE DISSENT OF THE CHIEF JUSTICE IN PEREZ.  THE CHIEF
JUSTICE THERE ACKNOWLEDGED THAT "ACTIONS IN DEROGATION OF UNDIVIDED
ALLEGIANCE TO THIS COUNTRY" HAD "LONG BEEN RECOGNIZED" TO RESULT IN
EXPATRIATION, ID., AT 68; HE ARGUED, HOWEVER, THAT THE CONNECTION
BETWEEN VOTING IN A FOREIGN POLITICAL ELECTION AND ABANDONMENT OF
CITIZENSHIP WAS LOGICALLY INSUFFICIENT TO SUPPORT A PRESUMPTION THAT A
CITIZEN HAD RENOUNCED HIS NATIONALITY.  ID., AT 76.  IT IS DIFFICULT TO
FIND ANY SEMBLANCE OF THIS REASONING, BEYOND THE MOMENTARY REFERENCE TO
THE OPINION OF THE CHIEF JUSTICE, IN THE APPROACH TAKEN BY THE COURT
TODAY; IT SEEMS INSTEAD TO ADOPT A SUBSTANTIALLY WIDER VIEW OF THE
RESTRICTIONS UPON CONGRESS' AUTHORITY IN THIS AREA.  WHATEVER THE
COURT'S POSITION, IT HAS ASSUMED THAT VOLUNTARINESS IS HERE A TERM OF
FIXED MEANING; IN FACT, OF COURSE, IT HAS BEEN EMPLOYED TO DESCRIBE
BOTH A SPECIFIC INTENT TO RENOUNCE CITIZENSHIP, AND THE UNCOERCED
COMMISSION OF AN ACT CONCLUSIVELY DEEMED BY LAW TO BE A RELINQUISHMENT
OF CITIZENSHIP.  UNTIL THE COURT INDICATES WITH GREATER PRECISION WHAT
IT MEANS BY "ASSENT," TODAY'S OPINION WILL SURELY CAUSE STILL GREATER
CONFUSION IN THIS AREA OF THE LAW. 

FN2  IT IS USEFUL, HOWEVER, TO REITERATE THE ESSENTIAL FACTS OF THIS
CASE, FOR THE COURT'S VERY SUMMARY STATEMENT MIGHT UNFORTUNATELY CAUSE
CONFUSION ABOUT THE SITUATION TO WHICH SEC.  401(E) WAS HERE APPLIED. 
PETITIONER EMIGRATED FROM THE UNITED STATES TO ISRAEL IN 1950, AND,
ALTHOUGH THE ISSUE WAS NOT ARGUED AT ANY STAGE OF THESE PROCEEDINGS, IT
WAS ASSUMED BY THE DISTRICT COURT THAT HE "HAS ACQUIRED ISRAELI
CITIZENSHIP."  250 F. SUPP. 686, 687.  HE VOTED IN THE ELECTION FOR THE
ISRAELI KNESSET IN 1951, AND, AS HIS ISRAELI IDENTIFICATION BOOKLET
INDICATES, IN VARIOUS POLITICAL ELECTIONS WHICH FOLLOWED.  TRANSCRIPT
OF RECORD 1-2.  IN 1960, AFTER 10 YEARS IN ISRAEL, PETITIONER
DETERMINED TO RETURN TO THE UNITED STATES, AND APPLIED TO THE UNITED
STATES CONSULATE IN HAIFA FOR A PASSPORT.  THE APPLICATION WAS
REJECTED, AND A CERTIFICATE OF LOSS OF NATIONALITY, BASED ENTIRELY ON
HIS PARTICIPATION IN THE 1951 ELECTION, WAS ISSUED.  PETITIONER'S
ACTION FOR DECLARATORY JUDGMENT FOLLOWED.  THERE IS, AS THE DISTRICT
COURT NOTED, "NO CLAIM BY THE PETITIONER THAT THE DEPRIVATION OF HIS
AMERICAN CITIZENSHIP WILL RENDER HIM A STATELESS PERSON."  IBID. 

FN3  SEE GENERALLY TSIANG, THE QUESTION OF EXPATRIATION IN AMERICA
PRIOR TO 1907, 25-70; ROCHE, THE EXPATRIATION CASES, 1963 SUP. CT. REV.
325, 327-330; ROCHE, LOSS OF AMERICAN NATIONALITY, 4 WEST.  POL.  Q.
268. 

FN4  ROCHE, THE EXPATRIATION CASES, 1963 SUP. CT. REV. 325, 329. 
ALTHOUGH THE EVIDENCE, WHICH CONSISTS PRINCIPALLY OF A LETTER TO ALBERT
GALLATIN, IS RATHER AMBIGUOUS, JEFFERSON APPARENTLY BELIEVED EVEN THAT
A STATE EXPATRIATION STATUTE COULD DEPRIVE A CITIZEN OF HIS FEDERAL
CITIZENSHIP.  1 WRITINGS OF ALBERT GALLATIN 301-302 (ADAMS ED. 1879). 
HIS PREMISE WAS PRESUMABLY THAT STATE CITIZENSHIP WAS PRIMARY, AND THAT
FEDERAL CITIZENSHIP ATTACHED ONLY THROUGH IT.  SEE TSIANG, SUPRA, AT
25.  GALLATIN'S OWN VIEWS HAVE BEEN DESCRIBED AS ESSENTIALLY "STATES'
RIGHTS"; SEE ROCHE, LOSS OF AMERICAN NATIONALITY, 4 WEST.  POL.  Q.
268, 271. 

FN5  SEE 4 ANNALS OF CONG. 1004 ET SEQ. 

FN6  THE DISCUSSION AND REJECTION OF THE AMENDMENT ARE CURSORILY
REPORTED AT 4 ANNALS OF CONG. 1028-1030. 

FN7  THE SIXTH SECTION IS SET OUT AT 7 ANNALS OF CONG. 349. 

FN8  THE BILL IS SUMMARIZED AT 31 ANNALS OF CONG. 495. 

FN9  31 ANNALS OF CONG. 1046. 

FN10  31 ANNALS OF CONG. 1057. 

FN11  IBID.  ROCHE DESCRIBES THE CONGRESSMEN UPON WHOM THE COURT
CHIEFLY RELIES AS "THE STATES' RIGHTS OPPOSITION."  LOSS OF AMERICAN
NATIONALITY, 4 WEST.  POL.  Q. 268, 276. 

FN12  31 ANNALS OF CONG. 1047.    FN13  31 ANNALS OF CONG. 1050. 

FN14  31 ANNALS OF CONG. 1059. 

FN15  IBID. 

FN16  31 ANNALS OF CONG. 1051. 

FN17  SIMILARLY, THE COURT CAN OBTAIN LITTLE SUPPORT FROM ITS
INVOCATION OF THE DICTUM FROM THE OPINION FOR THE COURT IN UNITED
STATES V. WONG KIM ARK, 169 U.S. 649, 703.  THE CENTRAL ISSUE THERE WAS
WHETHER A CHILD BORN OF CHINESE NATIONALS DOMICILED IN THE UNITED
STATES IS AN AMERICAN CITIZEN IF ITS BIRTH OCCURS IN THIS COUNTRY.  THE
DICTUM UPON WHICH THE COURT RELIES, WHICH CONSISTS ESSENTIALLY OF A
REITERATION OF THE DICTUM FROM OSBORN, CAN THEREFORE SCARCELY BE
CONSIDERED A REASONED CONSIDERATION OF THE ISSUES NOW BEFORE THE
COURT.  MOREOVER, THE DICTUM COULD CONCEIVABLY BE READ TO HOLD ONLY
THAT NO POWER TO EXPATRIATE AN UNWILLING CITIZEN WAS CONFERRED EITHER
BY THE NATURALIZATION CLAUSE OR BY THE FOURTEENTH AMENDMENT; IF THE
DICTUM MEANS NO MORE, IT WOULD OF COURSE NOT EVEN REACH THE HOLDING IN
PEREZ.  FINALLY, THE DICTUM MUST BE READ IN LIGHT OF THE SUBSEQUENT
OPINION FOR THE COURT, WRITTEN BY MR. JUSTICE MCKENNA, IN MACKENZIE V.
HARE, 239 U.S. 299.  DESPITE COUNSEL'S INVOCATION OF WONG KIM ARK, ID.,
AT 302 AND 303, THE COURT HELD IN MACKENZIE THAT MARRIAGE BETWEEN AN
AMERICAN CITIZEN AND AN ALIEN, UNACCOMPANIED BY ANY INTENTION OF THE
CITIZEN TO RENOUNCE HER CITIZENSHIP, NONETHELESS PERMITTED CONGRESS TO
WITHDRAW HER NATIONALITY.  IT IS IMMATERIAL FOR THESE PURPOSES THAT
MRS. MACKENZIE'S CITIZENSHIP MIGHT, UNDER THE STATUTE THERE, HAVE BEEN
RESTORED UPON TERMINATION OF THE MARITAL RELATIONSHIP; SHE DID NOT
CONSENT TO THE LOSS, EVEN TEMPORARILY, OF HER CITIZENSHIP, AND, UNDER
THE PROPOSITION APPARENTLY URGED BY THE COURT TODAY, IT CAN THEREFORE
SCARCELY MATTER THAT HER EXPATRIATION WAS SUBJECT TO SOME CONDITION
SUBSEQUENT.  IT SEEMS THAT NEITHER MR. JUSTICE MCKENNA, WHO BECAME A
MEMBER OF THE COURT AFTER THE ARGUMENT BUT BEFORE THE DECISION OF WONG
KIM ARK, SUPRA, AT 732, NOR MR. CHIEF JUSTICE WHITE, WHO JOINED THE
COURT'S OPINIONS IN BOTH WONG KIM ARK AND MACKENZIE, THOUGHT THAT WONG
KIM ARK REQUIRED THE RESULT REACHED BY THE COURT TODAY.  NOR, IT MUST
BE SUPPOSED, DID THE OTHER SIX MEMBERS OF THE COURT WHO JOINED
MACKENZIE, DESPITE WONG KIM ARK.  CLAUSE WAS ONLY "DECLARATORY" OF THE
LAW "WHERE IT NOW IS," AND YET THAT IT WOULD ENTIRELY WITHDRAW 

FN18  THE VARIOUS REVISIONS OF THE PROPOSED AMENDMENT MAY BE TRACED
THROUGH 20 ANNALS OF CONG. 530, 549, 572-573, 635, 671. 

FN19  AMES, THE PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED
STATES DURING THE FIRST CENTURY OF ITS HISTORY, 2 ANN. REP. AM. HIST.
ASSN. FOR THE YEAR 1896, 188. 

FN20  AMES, SUPRA, AT 187, SPECULATES THAT THE PRESENCE OF JEROME
BONAPARTE IN THIS COUNTRY SOME FEW YEARS EARLIER MIGHT HAVE CAUSED
APPREHENSION, AND CONCLUDES THAT THE AMENDMENT WAS MERELY AN EXPRESSION
OF "ANIMOSITY AGAINST FOREIGNERS."  ID., AT 188. 

FN21  THE CLAUSE PROVIDES THAT "NO TITLE OF NOBILITY SHALL BE GRANTED
BY THE UNITED STATES: AND NO PERSON HOLDING ANY OFFICE OF PROFIT OR
TRUST UNDER THEM, SHALL, WITHOUT THE CONSENT OF THE CONGRESS, ACCEPT OF
ANY PRESENT, EMOLUMENT, OFFICE, OR TITLE, OF ANY KIND WHATEVER, FROM
ANY KING, PRINCE, OR FOREIGN STATE." 

FN22  ROCHE, THE EXPATRIATION CASES, 1963 SUP. CT. REV. 325, 335. 

FN23 IBID. 

FN24  6 RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 226. 

FN25  SEE, E.G., THE COMMENTS OF SENATOR BROWN OF MISSOURI, CONG.
GLOBE, 38TH CONG., 1ST SESS., 3460. 

FN26 LINCOLN INDICATED THAT ALTHOUGH HE WAS "UNPREPARED" TO BE
"INFLEXIBLY COMMITTED" TO "ANY SINGLE PLAN OF RESTORATION," HE WAS
"FULLY SATISFIED" WITH THE BILL'S PROVISIONS.  6 RICHARDSON, MESSAGES
AND PAPERS OF THE PRESIDENTS 222-223. 

FN27  ROCHE, THE EXPATRIATION CASES, 1963 SUP. CT. REV. 325, 343. 

FN28  13 STAT. 490.  IT WAS THIS PROVISION THAT, AFTER VARIOUS
RECODIFICATIONS, WAS HELD UNCONSTITUTIONAL BY THIS COURT IN TROP V.
DULLES, 356 U.S. 86.  A MAJORITY OF THE COURT DID NOT THERE HOLD THAT
THE PROVISION WAS INVALID BECAUSE CONGRESS LACKED ALL POWER TO
EXPATRIATE AN UNWILLING CITIZEN.  IN ANY EVENT, A JUDGMENT BY THIS
COURT 90 YEARS AFTER THE ACT'S PASSAGE CAN SCARCELY REDUCE THE ACT'S
EVIDENTIARY VALUE FOR DETERMINING WHETHER CONGRESS UNDERSTOOD IN 1865,
AS THE COURT NOW INTIMATES THAT IT DID, THAT IT LACKED SUCH POWER. 

FN29  13 STAT. 491. 

FN30  CONG. GLOBE, 38TH CONG., 2D SESS., 642-643, 1155-1156. 

FN31  ROCHE, THE EXPATRIATION CASES, 1963 SUP. CT. REV. 325, 336. 

FN32  13 STAT. 490. 

FN33  HEARINGS BEFORE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON H.R. 6127, 76TH CONG., 1ST SESS., 38. 

FN34  SEE, E.G., THE REMARKS OF SENATOR HENDRICKS, CONG. GLOBE, 40TH
CONG., 1ST SESS., 661. 

FN35  THE PERTINENT EVENTS ARE DESCRIBED IN FLACK, ADOPTION OF THE
FOURTEENTH AMENDMENT 83-94. 

FN36  ID., AT 84. 

FN37  CONG. GLOBE, 39TH CONG., 1ST SESS., 2560. 

FN38  WADE WOULD HAVE EMPLOYED THE FORMULA "PERSONS BORN IN THE
UNITED STATES OR NATURALIZED UNDER THE LAWS THEREOF" TO MEASURE THE

FN39  CONG. GLOBE, 39TH CONG., 1ST SESS., 2869.  THE PRECISE TERMS OF
THE DISCUSSION IN THE CAUCUS WERE, AND HAVE REMAINED, UNKNOWN.  FOR
CONTEMPORARY COMMENT, SEE CONG. GLOBE, 39TH CONG., 1ST SESS., 2939. 

FN40  SCOTT V. SANDFORD, 19 HOW.  393. 

FN41  CONG. GLOBE, 39TH CONG., 1ST SESS., 2768. 

FN42  SEE, E.G., THE COMMENTS OF SENATOR JOHNSON OF MARYLAND, CONG.
GLOBE, 39TH CONG., 1ST SESS., 2893.  IT WAS SUBSEQUENTLY ACKNOWLEDGED
BY SEVERAL MEMBERS OF THIS COURT THAT A CENTRAL PURPOSE OF THE
CITIZENSHIP CLAUSE WAS TO CREATE AN INDEPENDENT BASIS OF FEDERAL
CITIZENSHIP, AND THUS TO OVERTURN THE DOCTRINE OF PRIMARY STATE
CITIZENSHIP.  THE SLAUGHTER-HOUSE CASES, 16 WALL.  36, 74, 95, 112. 
THE BACKGROUND OF THIS ISSUE IS TRACED IN TENBROEK, THE ANTISLAVERY
ORIGINS OF THE FOURTEENTH AMENDMENT 71-93. 

FN43  CONG. GLOBE, 39TH CONG., 1ST SESS., 3031.  SEE ALSO FLACK, THE
ADOPTION OF THE FOURTEENTH AMENDMENT 93.  IN THE SAME FASHION,
TENBROEK, SUPRA, AT 215-217, CONCLUDES THAT THE WHOLE OF SEC. 1 WAS
"DECLARATORY AND CONFIRMATORY."  ID., AT 217. 

FN44  CONG. GLOBE, 39TH CONG., 1ST SESS., 2890.  SEE ALSO THE
STATEMENT OF CONGRESSMAN BAKER, CONG. GLOBE, 39TH CONG., 1ST SESS.,
APP. 255, 256.  SIMILARLY, TWO MONTHS AFTER THE AMENDMENT'S PASSAGE
THROUGH CONGRESS, SENATOR LANE OF INDIANA REMARKED THAT THE CLAUSE WAS
"SIMPLY A RE-AFFIRMATION" OF THE DECLARATORY CITIZENSHIP SECTION OF THE
CIVIL RIGHTS BILL.  FAIRMAN, DOES THE FOURTEENTH AMENDMENT INCORPORATE
THE BILL OF RIGHTS?  2 STAN.  L. REV. 5, 74. 

FN45  SENATOR HENDERSON PARTICIPATED IN THE DEBATES UPON THE
ENROLLMENT ACT AND EXPRESSED NO DOUBTS ABOUT THE CONSTITUTIONALITY OF
SEC. 21, CONG. GLOBE, 38TH CONG., 2D SESS., 641, BUT THE FINAL VOTE
UPON THE MEASURE IN THE SENATE WAS NOT RECORDED.  CONG. GLOBE, 38TH
CONG., 2D SESS., 643. 

FN46  SEE, E.G., CONG. GLOBE, 38TH CONG., 2D SESS., 632. 

FN47  CONG. GLOBE, 39TH CONG., 1ST SESS., 2895. 

FN48  THE ISSUES PERTINENT HERE WERE NOT, OF COURSE, MATTERS OF GREAT
CONSEQUENCE IN THE RATIFICATION DEBATES IN THE SEVERAL STATE
LEGISLATURES, BUT SOME ADDITIONAL EVIDENCE IS NONETHELESS AVAILABLE
FROM THEM.  THE COMMITTEE ON FEDERAL RELATIONS OF THE TEXAS HOUSE OF
REPRESENTATIVES THUS REPORTED TO THE HOUSE THAT THE AMENDMENT'S FIRST
WHAT SHALL CONSTITUTE CITIZENSHIP OF A STATE, AND TO TRANSFER THAT
RIGHT TO THE FEDERAL GOVERNMENT."  ITS "OBJECT" WAS, THEY THOUGHT, TO
DECLARE NEGROES TO BE CITIZENS OF THE UNITED STATES."  TEX. HOUSE J.
578 (1866).  THE GOVERNOR OF GEORGIA REPORTED TO THE LEGISLATURE THAT
THE "PROMINENT FEATURE OF THE FIRST SECTION IS, THAT IT SETTLES
DEFINITELY THE RIGHT OF CITIZENSHIP IN THE SEVERAL STATES,  ...
THEREBY DEPRIVING THEM IN THE FUTURE OF ALL DISCRETIONARY POWER OVER
THE SUBJECT WITHIN THEIR RESPECTIVE LIMITS, AND WITH REFERENCE TO THEIR
STATE GOVERNMENTS PROPER."  GA. SEN. J. 6 (1866).  SEE ALSO THE MESSAGE
OF GOVERNOR COX TO THE OHIO LEGISLATURE, FAIRMAN, SUPRA, 2 STAN.  L.
REV., AT 96, AND THE MESSAGE OF GOVERNOR FLETCHER TO THE MISSOURI
LEGISLATURE, MO. SEN. J. 14 (1867).  IN COMBINATION, THIS EVIDENCE
AGAIN SUGGESTS THAT THE CITIZENSHIP CLAUSE WAS EXPECTED MERELY TO
DECLARE TO WHOM CITIZENSHIP INITIALLY ATTACHES, AND TO OVERTURN THE
DOCTRINE OF PRIMARY STATE CITIZENSHIP. 

FN49  SENATOR HENDRICKS, FOR EXAMPLE, LAMENTED ITS UNFAIRNESS,
DECLARED THAT ITS PRESENCE WAS AN "EMBARRASSMENT" TO THE COUNTRY, AND
ASSERTED THAT IT "IS NOT REQUIRED ANY LONGER."  CONG.  GLOBE, 40TH
CONG., 1ST SESS., 660-661. 

FN50  SIMILARLY, IN 1885, THIS COURT CONSTRUED SEC. 21 WITHOUT ANY
APPARENT INDICATION THAT THE SECTION WAS, OR HAD EVER BEEN THOUGHT TO
BE, BEYOND CONGRESS' AUTHORITY.  KURTZ V. MOFFITT, 115 U.S. 487, 501
502. 

FN51  TSIANG, SUPRA, N. 3, AT 95.  PRESIDENT JOHNSON EMPHASIZED IN
HIS THIRD ANNUAL MESSAGE THE DIFFICULTIES WHICH WERE THEN PREVALENT.  6
RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 558, 580-581. 

FN52  TSIANG, SUPRA, AT 95.  SEE ALSO 3 MOORE, DIGEST OF
INTERNATIONAL LAW 579-580. 

FN53  SEE, E.G., CONG. GLOBE, 40TH CONG., 2D SESS., 968, 1129-1131. 

FN54  VAN TRUMP'S PROPOSAL CONTAINED NOTHING WHICH WOULD HAVE
EXPATRIATED ANY UNWILLING CITIZEN, SEE CONG. GLOBE, 40TH CONG., 2D
SESS., 1801; ITS ULTIMATE FAILURE THEREFORE CANNOT, DESPITE THE COURT'S
APPARENT SUGGESTION, HELP TO ESTABLISH THAT THE HOUSE SUPPOSED THAT
LEGISLATION SIMILAR TO THAT AT ISSUE HERE WAS IMPERMISSIBLE UNDER THE
CONSTITUTION. 

FN55  CONG. GLOBE, 40TH CONG., 2D SESS., 1800-1805. 

FN56  IT SHOULD BE NOTED THAT VAN TRUMP, FAR FROM A "FRAMER" OF THE
AMENDMENT, HAD NOT EVEN BEEN A MEMBER OF THE CONGRESS WHICH ADOPTED IT.
BIOGRAPHICAL DIRECTORY OF THE AMERICAN CONGRESS 1774.  - 1961, H.R.
DOC. NO. 442, 85TH CONG., 2D SESS., 1750. 

FN57  AS GENERAL BANKS, THE CHAIRMAN OF THE HOUSE COMMITTEE ON
FOREIGN AFFAIRS, CAREFULLY EMPHASIZED, THE DEBATES WERE INTENDED SIMPLY
TO PRODUCE A DECLARATION OF THE OBLIGATION OF THE UNITED STATES TO
COMPEL OTHER COUNTRIES "TO CONSIDER THE RIGHTS OF OUR CITIZENS AND TO
BRING THE MATTER TO NEGOTIATION AND SETTLEMENT"; THE BILL'S PROPONENTS
STOOD "FOR THAT AND NOTHING MORE."  CONG. GLOBE, 40TH CONG., 2D SESS.,
2315. 

FN58  THE FIRST SUCH TREATY WAS THAT WITH THE NORTH GERMAN UNION,
CONCLUDED FEBRUARY 22, 1868, AND RATIFIED BY THE SENATE ON MARCH 26,
1868.  2 MALLOY, TREATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTOCOLS
AND AGREEMENTS BETWEEN THE UNITED STATES AND OTHER POWERS 1298. 
SIMILAR TREATIES WERE REACHED IN 1868 WITH BAVARIA, BADEN, BELGIUM,
HESSE, AND WURTTEMBERG; A TREATY WAS REACHED IN 1869 WITH NORWAY AND
SWEDEN.  AN ANALOGOUS TREATY WAS MADE WITH MEXICO IN 1868, BUT,
SIGNIFICANTLY, IT PERMITTED REBUTTAL OF THE PRESUMPTION OF RENUNCIATION
OF CITIZENSHIP.  SEE GENERALLY TSIANG, SUPRA, AT 88. 

FN59  THE RELEVANCE OF THESE TREATIES WAS CERTAINLY NOT OVERLOOKED IN
THE DEBATES IN THE SENATE UPON THE ACT OF 1868.  SEE, E.G., CONG.
GLOBE, 40TH CONG., 2D SESS., 4205, 4211, 4329, 4331.  SENATOR HOWARD
ATTACKED THE TREATIES, BUT EMPLOYED NONE OF THE REASONS WHICH MIGHT BE
SUGGESTED BY THE OPINION FOR THE COURT TODAY.  ID., AT 4211. 

FN60  7 RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 284, 291. 
SEE FURTHER BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD SECS.
319, 324, 325. 
..END :








MARYLAND PENITENTIARY V. HAYDEN 387 U.S. 294 


NO. 480.  ARGUED APRIL 12, 1967.  - DECIDED MAY 29, 1967.  - 363 F.2D
647, REVERSED. 


THE POLICE WERE INFORMED THAT AN ARMED ROBBERY HAD OCCURRED AND THAT
THE SUSPECT, RESPONDENT, HAD THEREAFTER ENTERED A CERTAIN HOUSE. 
MINUTES LATER THEY ARRIVED THERE AND WERE TOLD BY RESPONDENT'S WIFE
THAT SHE HAD NO OBJECTION TO THEIR SEARCHING THE HOUSE.  CERTAIN
OFFICERS ARRESTED RESPONDENT IN AN UPSTAIRS BEDROOM WHEN IT BECAME
CLEAR HE WAS THE ONLY MAN IN THE HOUSE.  OTHERS SIMULTANEOUSLY SEARCHED
THE FIRST FLOOR AND CELLAR.  ONE FOUND WEAPONS IN A FLUSH TANK;
ANOTHER, LOOKING "FOR A MAN OR THE MONEY," FOUND IN A WASHING MACHINE
CLOTHING OF THE TYPE THE SUSPECT WAS SAID TO HAVE WORN.  AMMUNITION WAS
ALSO FOUND.  THESE ITEMS WERE ADMITTED INTO EVIDENCE WITHOUT OBJECTION
AT RESPONDENT'S TRIAL WHICH RESULTED IN HIS CONVICTION.  AFTER
UNSUCCESSFUL STATE COURT PROCEEDINGS RESPONDENT SOUGHT AND WAS DENIED
HABEAS CORPUS RELIEF IN THE DISTRICT COURT.  THE COURT OF APPEALS FOUND
THE SEARCH LAWFUL, BUT REVERSED ON THE GROUND THAT THE CLOTHING SEIZED
DURING THE SEARCH WAS IMMUNE FROM SEIZURE, BEING OF "EVIDENTIAL VALUE
ONLY."  HELD: 

1.  "THE EXIGENCIES OF THE SITUATION," IN WHICH THE OFFICERS WERE IN
PURSUIT OF A SUSPECTED ARMED FELON IN THE HOUSE WHICH HE HAD ENTERED
ONLY MINUTES BEFORE THEY ARRIVED, PERMITTED THEIR WARRANTLESS ENTRY AND
SEARCH.  MCDONALD V. UNITED STATES, 335 U.S. 451, 456.  PP. 298-300. 

2.  THE DISTINCTION PROHIBITING SEIZURE OF ITEMS OF ONLY EVIDENTIAL
VALUE AND ALLOWING SEIZURE OF INSTRUMENTALITIES, FRUITS, OR CONTRABAND
IS NO LONGER ACCEPTED AS BEING REQUIRED BY THE FOURTH AMENDMENT.  PP.
300-310. 

(A)  THERE IS NO RATIONAL DISTINCTION BETWEEN A SEARCH FOR "MERE
EVIDENCE" AND ONE FOR AN "INSTRUMENTALITY" IN TERMS OF THE PRIVACY
WHICH IS SAFEGUARDED BY THE FOURTH AMENDMENT; NOR DOES THE LANGUAGE OF
THE AMENDMENT ITSELF MAKE SUCH A DISTINCTION.  PP. 301-302. 

(B) THE CLOTHING ITEMS INVOLVED HERE ARE NOT "TESTIMONIAL" OR
"COMMUNICATIVE" AND THEIR INTRODUCTION DID NOT COMPEL RESPONDENT TO
BECOME A WITNESS AGAINST HIMSELF IN VIOLATION OF THE FIFTH AMENDMANT. 
SCHMERBER V. CALIFORNIA, 384 U.S. 757.  PP. 302-303. 

(C)  THE PREMISE THAT PROPERTY INTERESTS CONTROL GOVERNMENT'S SEARCH
AND SEIZURE RIGHTS, ON WHICH GOULED V. UNITED STATES, 255 U.S. 298,
PARTLY RESTED, IS NO LONGER CONTROLLING AS THE FOURTH AMENDMENT'S
PRINCIPAL OBJECT IS THE PROTECTION OF PRIVACY, NOT PROPERTY.  PP. 303
306. 

(D)  THE RELATED PREMISE OF GOULED THAT GOVERNMENT MAY NOT SEIZE
EVIDENCE FOR THE PURPOSE OF PROVING CRIME HAS ALSO BEEN DISCREDITED. 
THE FOURTH AMENDMENT DOES NOT BAR A SEARCH FOR THAT PURPOSE PROVIDED
THAT THERE IS PROBABLE CAUSE, AS THERE WAS HERE, FOR THE BELIEF THAT
THE EVIDENCE SOUGHT WILL AID IN A PARTICULAR APPREHENSION OR
CONVICTION.  PP. 306-307. 

(E)  THE REMEDY OF SUPPRESSION, WITH ITS LIMITED, FUNCTIONAL
CONSEQUENCE, HAS MADE POSSIBLE THE REJECTION OF BOTH THE RELATED GOULED
PREMISES.  P. 307. 

(F)  JUST AS THE SUPPRESSION OF EVIDENCE DOES NOT REQUIRE THE RETURN
OF SUCH ITEMS AS CONTRABAND, THE INTRODUCTION OF "MERE EVIDENCE" DOES
NOT ENTITLE THE STATE TO ITS RETENTION IF IT IS BEING WRONGFULLY
WITHHELD.  PP. 307-308. 

(G)  THE NUMEROUS AND CONFUSING EXCEPTIONS TO THE "MERE EVIDENCE"
LIMITATION MAKE IT QUESTIONABLE WHETHER IT AFFORDS ANY MEANINGFUL
PROTECTION.  P. 309. 

WARDEN, MARYLAND PENITENTIARY V. HAYDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

WE REVIEW IN THIS CASE THE VALIDITY OF THE PROPOSITION THAT THERE IS
UNDER THE FOURTH AMENDMENT A "DISTINCTION BETWEEN MERELY EVIDENTIARY
MATERIALS, ON THE ONE HAND, WHICH MAY NOT BE SEIZED EITHER UNDER THE
AUTHORITY OF A SEARCH WARRANT OR DURING THE COURSE OF A SEARCH INCIDENT
TO ARREST, AND ON THE OTHER HAND, THOSE OBJECTS WHICH MAY VALIDLY BE
SEIZED INCLUDING THE INSTRUMENTALITIES AND MEANS BY WHICH A CRIME IS
COMMITTED, THE FRUITS OF CRIME SUCH AS STOLEN PROPERTY, WEAPONS BY
WHICH ESCAPE OF THE PERSON ARRESTED MIGHT BE EFFECTED, AND PROPERTY THE
POSSESSION OF WHICH IS A CRIME."  (FN1) 

A MARYLAND COURT SITTING WITHOUT A JURY CONVICTED RESPONDENT OF ARMED
ROBBERY.  ITEMS OF HIS CLOTHING, A CAP, JACKET, AND TROUSERS, AMONG
OTHER THINGS, WERE SEIZED DURING A SEARCH OF HIS HOME, AND WERE
ADMITTED IN EVIDENCE WITHOUT OBJECTION.  AFTER UNSUCCESSFUL STATE COURT
PROCEEDINGS, HE SOUGHT AND WAS DENIED FEDERAL HABEAS CORPUS RELIEF IN
THE DISTRICT COURT FOR MARYLAND.  (FN2)  A DIVIDED PANEL OF THE COURT
OF APPEALS FOR THE FOURTH CIRCUIT REVERSED.  363 F.2D 647.  THE COURT
OF APPEALS BELIEVED THAT HARRIS V. UNITED STATES, 331 U.S. 145, 154,
SUSTAINED THE VALIDITY OF THE SEARCH, BUT HELD THAT RESPONDENT WAS
CORRECT IN HIS CONTENTION THAT THE CLOTHING SEIZED WAS IMPROPERLY
ADMITTED IN EVIDENCE BECAUSE THE ITEMS HAD "EVIDENTIAL VALUE ONLY" AND
THEREFORE WERE NOT LAWFULLY SUBJECT TO SEIZURE.  WE GRANTED
CERTIORARI.  385 U.S. 926.  WE REVERSE.  (FN3)

                                         I. 

ABOUT 8 A.M. ON MARCH 17, 1962, AN ARMED ROBBER ENTERED THE BUSINESS
PREMISES OF THE DIAMOND CAB COMPANY IN BALTIMORE, MARYLAND.  HE TOOK
SOME $363 AND RAN.  TWO CAB DRIVERS IN THE VICINITY, ATTRACTED BY
SHOUTS OF "HOLDUP," FOLLOWED THE MAN TO 2111 COCOA LANE.  ONE DRIVER
NOTIFIED THE COMPANY DISPATCHER BY RADIO THAT THE MAN WAS A NEGRO,
ABOUT 5'8" TALL, WEARING A LIGHT CAP AND DARK JACKET, AND THAT HE HAD
ENTERED THE HOUSE ON COCOA LANE.  THE DISPATCHER RELAYED THE
INFORMATION TO POLICE WHO WERE PROCEEDING TO THE SCENE OF THE ROBBERY. 
WITHIN MINUTES, POLICE ARRIVED AT THE HOUSE IN A NUMBER OF PATROL
CARS.  AN OFFICER KNOCKED AND ANNOUNCED THEIR PRESENCE.  MRS. HAYDEN
ANSWERED, AND THE OFFICERS TOLD HER THEY BELIEVED THAT A ROBBER HAD
ENTERED THE HOUSE, AND ASKED TO SEARCH THE HOUSE.  SHE OFFERED NO
OBJECTION.  (FN4) 

THE OFFICERS SPREAD OUT THROUGH THE FIRST AND SECOND FLOORS AND THE
CELLAR IN SEARCH OF THE ROBBER.  HAYDEN WAS FOUND IN AN UPSTAIRS
BEDROOM FEIGNING SLEEP.  HE WAS ARRESTED WHEN THE OFFICERS ON THE FIRST
FLOOR AND IN THE CELLAR REPORTED THAT NO OTHER MAN WAS IN THE HOUSE. 
MEANWHILE AN OFFICER WAS ATTRACTED TO AN ADJOINING BATHROOM BY THE
NOISE OF RUNNING WATER, AND DISCOVERED A SHOTGUN AND A PISTOL IN A
FLUSH TANK; ANOTHER OFFICER WHO, ACCORDING TO THE DISTRICT COURT, "WAS
SEARCHING THE CELLAR FOR A MAN OR THE MONEY" FOUND IN A WASHING MACHINE
A JACKET AND TROUSERS OF THE TYPE THE FLEEING MAN WAS SAID TO HAVE
WORN.  A CLIP OF AMMUNITION FOR THE PISTOL AND A CAP WERE FOUND UNDER
THE MATTRESS OF HAYDEN'S BED, AND AMMUNITION FOR THE SHOTGUN WAS FOUND
IN A BUREAU DRAWER IN HAYDEN'S ROOM.  ALL THESE ITEMS OF EVIDENCE WERE
INTRODUCED AGAINST RESPONDENT AT HIS TRIAL. 

                                         II. 

WE AGREE WITH THE COURT OF APPEALS THAT NEITHER THE ENTRY WITHOUT
WARRANT TO SEARCH FOR THE ROBBER, NOR THE SEARCH FOR HIM WITHOUT
WARRANT WAS INVALID.  UNDER THE CIRCUMSTANCES OF THIS CASE, "THE
EXIGENCIES OF THE SITUATION MADE THAT COURSE IMPERATIVE."  MCDONALD V.
UNITED STATES, 335 U.S. 451, 456.  THE POLICE WERE INFORMED THAT AN
ARMED ROBBERY HAD TAKEN PLACE, AND THAT THE SUSPECT HAD ENTERED 2111
COCOA LANE LESS THAN FIVE MINUTES BEFORE THEY REACHED IT.  THEY ACTED
REASONABLY WHEN THEY ENTERED THE HOUSE AND BEGAN TO SEARCH FOR A MAN OF
THE DESCRIPTION THEY HAD BEEN GIVEN AND FOR WEAPONS WHICH HE HAD USED
IN THE ROBBERY OR MIGHT USE AGAINST THEM.  THE FOURTH AMENDMENT DOES
NOT REQUIRE POLICE OFFICERS TO DELAY IN THE COURSE OF AN INVESTIGATION
IF TO DO SO WOULD GRAVELY ENDANGER THEIR LIVES OR THE LIVES OF OTHERS. 
SPEED HERE WAS ESSENTIAL, AND ONLY A THOROUGH SEARCH OF THE HOUSE FOR
PERSONS AND WEAPONS COULD HAVE INSURED THAT HAYDEN WAS THE ONLY MAN
PRESENT AND THAT THE POLICE HAD CONTROL OF ALL WEAPONS WHICH COULD BE
USED AGAINST THEM OR TO EFFECT AN ESCAPE. 

WE DO NOT RELY UPON HARRIS V. UNITED STATES, SUPRA, IN SUSTAINING THE
VALIDITY OF THE SEARCH.  THE PRINCIPAL ISSUE IN HARRIS WAS WHETHER THE
SEARCH THERE COULD PROPERLY BE REGARDED AS INCIDENT TO THE LAWFUL
ARREST, SINCE HARRIS WAS IN CUSTODY BEFORE THE SEARCH WAS MADE AND THE
EVIDENCE SEIZED.  HERE, THE SEIZURES OCCURRED PRIOR TO OR IMMEDIATELY
CONTEMPORANEOUS WITH HAYDEN'S ARREST, AS PART OF AN EFFORT TO FIND A
SUSPECTED FELON, ARMED, WITHIN THE HOUSE INTO WHICH HE HAD RUN ONLY
MINUTES BEFORE THE POLICE ARRIVED.  THE PERMISSIBLE SCOPE OF SEARCH
MUST, THEREFORE, AT THE LEAST, BE AS BROAD AS MAY REASONABLY BE
NECESSARY TO PREVENT THE DANGERS THAT THE SUSPECT AT LARGE IN THE HOUSE
MAY RESIST OR ESCAPE. 

IT IS ARGUED THAT, WHILE THE WEAPONS, AMMUNITION, AND CAP MAY HAVE
BEEN SEIZED IN THE COURSE OF A SEARCH FOR WEAPONS, THE OFFICER WHO
SEIZED THE CLOTHING WAS SEARCHING NEITHER FOR THE SUSPECT NOR FOR
WEAPONS WHEN HE LOOKED INTO THE WASHING MACHINE IN WHICH HE FOUND THE
CLOTHING.  BUT EVEN IF WE ASSUME, ALTHOUGH WE DO NOT DECIDE, THAT THE
EXIGENT CIRCUMSTANCES IN THIS CASE MADE LAWFUL A SEARCH WITHOUT WARRANT
ONLY FOR THE SUSPECT OR HIS WEAPONS, IT CANNOT BE SAID ON THIS RECORD
THAT THE OFFICER WHO FOUND THE CLOTHES IN THE WASHING MACHINE WAS NOT
SEARCHING FOR WEAPONS.  HE TESTIFIED THAT HE WAS SEARCHING FOR THE MAN
OR THE MONEY, BUT HIS FAILURE TO STATE EXPLICITLY THAT HE WAS SEARCHING
FOR WEAPONS, IN THE ABSENCE OF A SPECIFIC QUESTION TO THAT EFFECT, CAN
HARDLY BE ACCORDED CONTROLLING WEIGHT.  HE KNEW THAT THE ROBBER WAS
ARMED AND HE DID NOT KNOW THAT SOME WEAPONS HAD BEEN FOUND AT THE TIME
HE OPENED THE MACHINE.  (FN5)  IN THESE CIRCUMSTANCES THE INFERENCE
THAT HE WAS IN FACT ALSO LOOKING FOR WEAPONS IS FULLY JUSTIFIED. 

                                        III. 

WE COME, THEN, TO THE QUESTION WHETHER, EVEN THOUGH THE SEARCH WAS
LAWFUL, THE COURT OF APPEALS WAS CORRECT IN HOLDING THAT THE SEIZURE
AND INTRODUCTION OF THE ITEMS OF CLOTHING VIOLATED THE FOURTH AMENDMENT
BECAUSE THEY ARE "MERE EVIDENCE."  THE DISTINCTION MADE BY SOME OF OUR
CASES BETWEEN SEIZURE OF ITEMS OF EVIDENTIAL VALUE ONLY AND SEIZURE OF
INSTRUMENTALITIES, FRUITS, OR CONTRABAND HAS BEEN CRITICIZED BY COURTS
(FN6) AND COMMENTATORS.  (FN7)  THE COURT OF APPEALS, HOWEVER, FELT
"OBLIGATED TO ADHERE TO IT."  363 F.2D, AT 655.  WE TODAY REJECT THE
DISTINCTION AS BASED ON PREMISES NO LONGER ACCEPTED AS RULES GOVERNING
THE APPLICATION OF THE FOURTH AMENDMENT.  (FN8) 

WE HAVE EXAMINED ON MANY OCCASIONS THE HISTORY AND PURPOSES OF THE
AMENDMENT.  (FN9)  IT WAS A REACTION TO THE EVILS OF THE USE OF THE
GENERAL WARRANT IN ENGLAND AND THE WRITS OF ASSISTANCE IN THE COLONIES,
AND WAS INTENDED TO PROTECT AGAINST INVASIONS OF "THE SANCTITY OF A
MAN'S HOME AND THE PRIVACIES OF LIFE," BOYD V. UNITED STATES, 116 U.S.
616, 630, FROM SEARCHES UNDER INDISCRIMINATE, GENERAL AUTHORITY. 
PROTECTION OF THESE INTERESTS WAS ASSURED BY PROHIBITING ALL
"UNREASONABLE" SEARCHES AND SEIZURES, AND BY REQUIRING THE USE OF
WARRANTS, WHICH PARTICULARLY DESCRIBE "THE PLACE TO BE SEARCHED, AND
THE PERSONS OR THINGS TO BE SEIZED," THEREBY INTERPOSING "A MAGISTRATE
BETWEEN THE CITIZEN AND THE POLICE," MCDONALD V. UNITED STATES, SUPRA,
335 U.S., AT 455. 

NOTHING IN THE LANGUAGE OF THE FOURTH AMENDMENT SUPPORTS THE
DISTINCTION BETWEEN "MERE EVIDENCE" AND INSTRUMENTALITIES, FRUITS OF
CRIME, OR CONTRABAND.  ON ITS FACE, THE PROVISION ASSURES THE "RIGHT OF
THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS
...  ," WITHOUT REGARD TO THE USE TO WHICH ANY OF THESE THINGS ARE
APPLIED.  THIS "RIGHT OF THE PEOPLE" IS CERTAINLY UNRELATED TO THE
"MERE EVIDENCE" LIMITATION.  PRIVACY IS DISTURBED NO MORE BY A SEARCH
DIRECTED TO A PURELY EVIDENTIARY OBJECT THAN IT IS BY A SEARCH DIRECTED
TO AN INSTRUMENTALITY, FRUIT, OR CONTRABAND.  A MAGISTRATE CAN
INTERVENE IN BOTH SITUATIONS, AND THE REQUIREMENTS OF PROBABLE CAUSE
AND SPECIFICITY CAN BE PRESERVED INTACT.  MOREOVER, NOTHING IN THE
NATURE OF PROPERTY SEIZED AS EVIDENCE RENDERS IT MORE PRIVATE THAN
PROPERTY SEIZED, FOR EXAMPLE, AS AN INSTRUMENTALITY; QUITE THE OPPOSITE
MAY BE TRUE.  INDEED, THE DISTINCTION IS WHOLLY IRRATIONAL, SINCE,
DEPENDING ON THE CIRCUMSTANCES, THE SAME "PAPERS AND EFFECTS" MAY BE
"MERE EVIDENCE" IN ONE CASE AND "INSTRUMENTALITY" IN ANOTHER.  SEE
COMMENT, 20 U. CHI.  L. REV. 319, 320-322 (1953). 

IN GOULED V. UNITED STATES, 255 U.S. 298, 309, THE COURT SAID THAT
SEARCH WARRANTS "MAY NOT BE USED AS A MEANS OF GAINING ACCESS TO A
MAN'S HOUSE OR OFFICE AND PAPERS SOLELY FOR THE PURPOSE OF MAKING
SEARCH TO SECURE EVIDENCE TO BE USED AGAINST HIM IN A CRIMINAL OR PENAL
PROCEEDING  ...  ."  THE COURT DERIVED FROM BOYD V. UNITED STATES,
SUPRA, THE PROPOSITION THAT WARRANTS "MAY BE RESORTED TO ONLY WHEN A
PRIMARY RIGHT TO SUCH SEARCH AND SEIZURE MAY BE FOUND IN THE INTEREST
WHICH THE PUBLIC OR THE COMPLAINANT MAY HAVE IN THE PROPERTY TO BE
SEIZED, OR IN THE RIGHT TO THE POSSESSION OF IT, OR WHEN A VALID
EXERCISE OF THE POLICE POWER RENDERS POSSESSION OF THE PROPERTY BY THE
ACCUSED UNLAWFUL AND PROVIDES THAT IT MAY BE TAKEN," 255 U.S., AT 309;
THAT IS, WHEN THE PROPERTY IS AN INSTRUMENTALITY OR FRUIT OF CRIME, OR
CONTRABAND.  SINCE IT WAS "IMPOSSIBLE TO SAY, ON THE RECORD  ...  THAT
THE GOVERNMENT HAD ANY INTEREST" IN THE PAPERS INVOLVED "OTHER THAN AS
EVIDENCE AGAINST THE ACCUSED  ...  ," "TO PERMIT THEM TO BE USED IN
EVIDENCE WOULD BE, IN EFFECT, AS RULED IN THE BOYD CASE, TO COMPEL THE
DEFENDANT TO BECOME A WITNESS AGAINST HIMSELF."  ID., AT 311. 

THE ITEMS OF CLOTHING INVOLVED IN THIS CASE ARE NOT "TESTIMONIAL" OR
"COMMUNICATIVE" IN NATURE, AND THEIR INTRODUCTION THEREFORE DID NOT
COMPEL RESPONDENT TO BECOME A WITNESS AGAINST HIMSELF IN VIOLATION OF
THE FIFTH AMENDMENT.  SCHMERBER V. CALIFORNIA, 384 U.S. 757.  THIS CASE
THUS DOES NOT REQUIRE THAT WE CONSIDER WHETHER THERE ARE ITEMS OF
EVIDENTIAL VALUE WHOSE VERY NATURE PRECLUDES THEM FROM BEING THE OBJECT
OF A REASONABLE SEARCH AND SEIZURE. 

THE FOURTH AMENDMENT RULING IN GOULED WAS BASED UPON THE DUAL,
RELATED PREMISES THAT HISTORICALLY THE RIGHT TO SEARCH FOR AND SEIZE
PROPERTY DEPENDED UPON THE ASSERTION BY THE GOVERNMENT OF A VALID CLAIM
OF SUPERIOR INTEREST, AND THAT IT WAS NOT ENOUGH THAT THE PURPOSE OF
THE SEARCH AND SEIZURE WAS TO OBTAIN EVIDENCE TO USE IN APPREHENDING
AND CONVICTING CRIMINALS.  THE COMMON LAW OF SEARCH AND SEIZURE AFTER
ENTICK V. CARRINGTON, 19 HOW.  ST. TR. 1029, REFLECTED LORD CAMDEN'S
VIEW, DERIVED NO DOUBT FROM THE POLITICAL THOUGHT OF HIS TIME, THAT THE
"GREAT END, FOR WHICH MEN ENTERED INTO SOCIETY, WAS TO SECURE THEIR
PROPERTY."  ID., AT 1066.  WARRANTS WERE "ALLOWED ONLY WHERE THE
PRIMARY RIGHT TO SUCH A SEARCH AND SEIZURE IS IN THE INTEREST WHICH THE
PUBLIC OR COMPLAINANT MAY HAVE IN THE PROPERTY SEIZED."  LASSON, THE
HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES
CONSTITUTION 133-134.  THUS STOLEN PROPERTY - THE FRUITS OF CRIME - WAS
ALWAYS SUBJECT TO SEIZURE.  AND THE POWER TO SEARCH FOR STOLEN PROPERTY
WAS GRADUALLY EXTENDED TO COVER "ANY PROPERTY WHICH THE PRIVATE CITIZEN
WAS NOT PERMITTED TO POSSESS," WHICH INCLUDED INSTRUMENTALITIES OF
CRIME (BECAUSE OF THE EARLY NOTION THAT ITEMS USED IN CRIME WERE
FORFEITED TO THE STATE) AND CONTRABAND.  KAPLAN, SEARCH AND SEIZURE:  A
NO-MAN'S LAND IN THE CRIMINAL LAW, 49 CALIF. L. REV. 474, 475.  NO
SEPARATE GOVERNMENTAL INTEREST IN SEIZING EVIDENCE TO APPREHEND AND
CONVICT CRIMINALS WAS RECOGNIZED; IT WAS REQUIRED THAT SOME PROPERTY
INTEREST BE ASSERTED.  THE REMEDIAL STRUCTURE ALSO REFLECTED THESE DUAL
PREMISES.  TRESPASS, REPLEVIN, AND THE OTHER MEANS OF REDRESS FOR
PERSONS AGGRIEVED BY SEARCHES AND SEIZURES, DEPENDED UPON PROOF OF A
SUPERIOR PROPERTY INTEREST.  AND SINCE A LAWFUL SEIZURE PRESUPPOSED A
SUPERIOR CLAIM, IT WAS INCONCEIVABLE THAT A PERSON COULD RECOVER
PROPERTY LAWFULLY SEIZED.  AS LORD CAMDEN POINTED OUT IN ENTICK V.
CARRINGTON, SUPRA, AT 1066, A GENERAL WARRANT ENABLED "THE PARTY'S OWN
PROPERTY TO BE SEIZED BEFORE AND WITHOUT CONVICTION, AND HE HAS NO
POWER TO RECLAIM HIS GOODS, EVEN AFTER HIS INNOCENCE IS CLEARED BY
ACQUITTAL." 

THE PREMISE THAT PROPERTY INTERESTS CONTROL THE RIGHT OF THE
GOVERNMENT TO SEARCH AND SEIZE HAS BEEN DISCREDITED.  SEARCHES AND
SEIZURES MAY BE "UNREASONABLE" WITHIN THE FOURTH AMENDMENT EVEN THOUGH
THE GOVERNMENT ASSERTS A SUPERIOR PROPERTY INTEREST AT COMMON LAW.  WE
HAVE RECOGNIZED THAT THE PRINCIPAL OBJECT OF THE FOURTH AMENDMENT IS
THE PROTECTION OF PRIVACY RATHER THAN PROPERTY, AND HAVE INCREASINGLY
DISCARDED FICTIONAL AND PROCEDURAL BARRIERS RESTED ON PROPERTY
CONCEPTS.  SEE JONES V. UNITED STATES, 362 U.S. 257, 266; SILVERMAN V.
UNITED STATES, 365 U.S. 505, 511.  THIS SHIFT IN EMPHASIS FROM PROPERTY
TO PRIVACY HAS COME ABOUT THROUGH A SUBTLE INTERPLAY OF SUBSTANTIVE AND
PROCEDURAL REFORM.  THE REMEDIAL STRUCTURE AT THE TIME EVEN OF WEEKS V.
UNITED STATES, 232 U.S. 383, WAS ARGUABLY EXPLAINABLE IN PROPERTY
TERMS.  THE COURT HELD IN WEEKS THAT A DEFENDANT COULD PETITION BEFORE
TRIAL FOR THE RETURN OF HIS ILLEGALLY SEIZED PROPERTY, A PROPOSITION
NOT NECESSARILY INCONSISTENT WITH ADAMS V. NEW YORK, 192 U.S. 585,
WHICH HELD IN EFFECT THAT THE PROPERTY ISSUES INVOLVED IN SEARCH AND
SEIZURE ARE COLLATERAL TO A CRIMINAL PROCEEDING.  (FN10)  THE REMEDIAL
STRUCTURE FINALLY ESCAPED THE BOUNDS OF COMMON LAW PROPERTY LIMITATIONS
IN SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385, AND GOULED
V. UNITED STATES, SUPRA, WHEN IT BECAME ESTABLISHED THAT SUPPRESSION
MIGHT BE SOUGHT DURING A CRIMINAL TRIAL, AND UNDER CIRCUMSTANCES WHICH
WOULD NOT SUSTAIN AN ACTION IN TRESPASS OR REPLEVIN.  RECOGNITION THAT
THE ROLE OF THE FOURTH AMENDMENT WAS TO PROTECT AGAINST INVASIONS OF
PRIVACY DEMANDED A REMEDY TO CONDEMN THE SEIZURE IN SILVERTHORNE,
ALTHOUGH NO POSSIBLE COMMON LAW CLAIM EXISTED FOR THE RETURN OF THE
COPIES MADE BY THE GOVERNMENT OF THE PAPERS IT HAD SEIZED.  THE REMEDY
OF SUPPRESSION, NECESSARILY INVOLVING ONLY THE LIMITED, FUNCTIONAL
CONSEQUENCE OF EXCLUDING THE EVIDENCE FROM TRIAL, SATISFIED THAT
DEMAND. 

THE DEVELOPMENT OF SEARCH AND SEIZURE LAW SINCE SILVERTHORNE AND
GOULED IS REPLETE WITH EXAMPLES OF THE TRANSFORMATION IN SUBSTANTIVE
LAW BROUGHT ABOUT THROUGH THE INTERACTION OF THE FELT NEED TO PROTECT
PRIVACY FROM UNREASONABLE INVASIONS AND THE FLEXIBILITY IN RULEMAKING
MADE POSSIBLE BY THE REMEDY OF EXCLUSION.  WE HAVE HELD, FOR EXAMPLE,
THAT INTANGIBLE AS WELL AS TANGIBLE EVIDENCE MAY BE SUPPRESSED, WONG
SUN V. UNITED STATES, 371 U.S. 471, 485-486, AND THAT AN ACTUAL
TRESPASS UNDER LOCAL PROPERTY LAW IS UNNECESSARY TO SUPPORT A
REMEDIABLE VIOLATION OF THE FOURTH AMENDMENT, SILVERMAN V. UNITED
STATES, SUPRA.  IN DETERMINING WHETHER SOMEONE IS A "PERSON AGGRIEVED
BY AN UNLAWFUL SEARCH AND SEIZURE" WE HAVE REFUSED "TO IMPORT INTO THE
LAW  ...  SUBTLE DISTINCTIONS, DEVELOPED AND REFINED BY THE COMMON LAW
IN EVOLVING THE BODY OF PRIVATE PROPERTY LAW WHICH, MORE THAN ALMOST
ANY OTHER BRANCH OF LAW, HAS BEEN SHAPED BY DISTINCTIONS WHOSE VALIDITY
IS LARGELY HISTORICAL."  JONES V. UNITED STATES, SUPRA, 362 U.S., AT
266.  AND WITH PARTICULAR RELEVANCE HERE, WE HAVE GIVEN RECOGNITION TO
THE INTEREST IN PRIVACY DESPITE THE COMPLETE ABSENCE OF A PROPERTY
CLAIM BY SUPPRESSING THE VERY ITEMS WHICH AT COMMON LAW COULD BE SEIZED
WITH IMPUNITY:  STOLEN GOODS, HENRY V. UNITED STATES, 361 U.S. 98;
INSTRUMENTALITIES, BECK V. OHIO, 379 U.S. 89; MCDONALD V. UNITED
STATES, SUPRA; AND CONTRABAND, TRUPIANO V. UNITED STATES, 334 U.S. 699;
AGUILAR V. TEXAS, 378 U.S. 108. 

THE PREMISE IN GOULED THAT GOVERNMENT MAY NOT SEIZE EVIDENCE SIMPLY
FOR THE PURPOSE OF PROVING CRIME HAS LIKEWISE BEEN DISCREDITED.  THE
REQUIREMENT THAT THE GOVERNMENT ASSERT IN ADDITION SOME PROPERTY
INTEREST IN MATERIAL IT SEIZES HAS LONG BEEN A FICTION, (FN11)
OBSCURING THE REALITY THAT GOVERNMENT HAS AN INTEREST IN SOLVING
CRIME.  SCHMERBER SETTLED THE PROPOSITION THAT IT IS REASONABLE, WITHIN
THE TERMS OF THE FOURTH AMENDMENT, TO CONDUCT OTHERWISE PERMISSIBLE
SEARCHES FOR THE PURPOSE OF OBTAINING EVIDENCE WHICH WOULD AID IN
APPREHENDING AND CONVICTING CRIMINALS.  THE REQUIREMENTS OF THE FOURTH
AMENDMENT CAN SECURE THE SAME PROTECTION OF PRIVACY WHETHER THE SEARCH
IS FOR "MERE EVIDENCE" OR FOR FRUITS, INSTRUMENTALITIES OR CONTRABAND. 
THERE MUST, OF COURSE, BE A NEXUS - AUTOMATICALLY PROVIDED IN THE CASE
OF FRUITS, INSTRUMENTALITIES OR CONTRABAND - BETWEEN THE ITEM TO BE
SEIZED AND CRIMINAL BEHAVIOR.  THUS IN THE CASE OF "MERE EVIDENCE,"
PROBABLE CAUSE MUST BE EXAMINED IN TERMS OF CAUSE TO BELIEVE THAT THE
EVIDENCE SOUGHT WILL AID IN A PARTICULAR APPREHENSION OR CONVICTION. 
IN SO DOING, CONSIDERATION OF POLICE PURPOSES WILL BE REQUIRED.  CF.
KREMEN V. UNITED STATES, 353 U.S. 346.  BUT NO SUCH PROBLEM IS
PRESENTED IN THIS CASE.  THE CLOTHES FOUND IN THE WASHING MACHINE
MATCHED THE DESCRIPTION OF THOSE WORN BY THE ROBBER AND THE POLICE
THEREFORE COULD REASONABLY BELIEVE THAT THE ITEMS WOULD AID IN THE
IDENTIFICATION OF THE CULPRIT. 

THE REMEDY OF SUPPRESSION, MOREOVER, WHICH MADE POSSIBLE PROTECTION
OF PRIVACY FROM UNREASONABLE SEARCHES WITHOUT REGARD TO PROOF OF A
SUPERIOR PROPERTY INTEREST, LIKEWISE PROVIDES THE PROCEDURAL DEVICE
NECESSARY FOR ALLOWING OTHERWISE PERMISSIBLE SEARCHES AND SEIZURES
CONDUCTED SOLELY TO OBTAIN EVIDENCE OF CRIME.  FOR JUST AS THE
SUPPRESSION OF EVIDENCE DOES NOT ENTAIL A DECLARATION OF SUPERIOR
PROPERTY INTEREST IN THE PERSON AGGRIEVED, THEREBY ENABLING HIM TO
SUPPRESS EVIDENCE UNLAWFULLY SEIZED DESPITE HIS INABILITY TO
DEMONSTRATE SUCH AN INTEREST (AS WITH FRUITS, INSTRUMENTALITIES,
CONTRABAND), THE REFUSAL TO SUPPRESS EVIDENCE CARRIES NO DECLARATION OF
SUPERIOR PROPERTY INTEREST IN THE STATE, AND SHOULD THEREBY ENABLE THE
STATE TO INTRODUCE EVIDENCE LAWFULLY SEIZED DESPITE ITS INABILITY TO
DEMONSTRATE SUCH AN INTEREST.  AND, UNLIKE THE SITUATION AT COMMON LAW,
THE OWNER OF PROPERTY WOULD NOT BE RENDERED REMEDILESS IF "MERE
EVIDENCE" COULD LAWFULLY BE SEIZED TO PROVE CRIME.  FOR JUST AS THE
SUPPRESSION OF EVIDENCE DOES NOT IN ITSELF NECESSARILY ENTITLE THE
AGGRIEVED PERSON TO ITS RETURN (AS, FOR EXAMPLE, CONTRABAND), THE
INTRODUCTION OF "MERE EVIDENCE" DOES NOT IN ITSELF ENTITLE THE STATE TO
ITS RETENTION.  WHERE PUBLIC OFFICIALS "UNLAWFULLY SEIZE OR HOLD A
CITIZEN'S REALTY OR CHATTELS, RECOVERABLE BY APPROPRIATE ACTION AT LAW
OR IN EQUITY ...  ," THE TRUE OWNER MAY "BRING HIS POSSESSORY ACTION TO
RECLAIM THAT WHICH IS WRONGFULLY WITHHELD."  LAND V. DOLLAR, 330 U.S.
731, 738.  SEE BURDEAU V. MCDOWELL, 256 U.S. 465, 474. 

THE SURVIVAL OF THE GOULED DISTINCTION IS ATTRIBUTABLE MORE TO CHANCE
THAN CONSIDERED JUDGMENT.  LEGISLATION HAS HELPED PERPETUATE IT.  THUS,
CONGRESS HAS NEVER AUTHORIZED THE ISSUANCE OF SEARCH WARRANTS FOR THE
SEIZURE OF MERE EVIDENCE OF CRIME.  SEE DAVIS V. UNITED STATES, 328
U.S. 582, 606 (DISSENTING OPINION OF MR. JUSTICE FRANKFURTER).  EVEN IN
THE ESPIONAGE ACT OF 1917, WHERE CONGRESS FOR THE FIRST TIME GRANTED
GENERAL AUTHORITY FOR THE ISSUANCE OF SEARCH WARRANTS, THE AUTHORITY
WAS LIMITED TO FRUITS OF CRIME, INSTRUMENTALITIES, AND CERTAIN
CONTRABAND.  40 STAT. 228.  GOULED CONCLUDED, NEEDLESSLY IT APPEARS,
THAT THE CONSTITUTION VIRTUALLY LIMITED SEARCHES AND SEIZURES TO THESE
CATEGORIES.  (FN12)  AFTER GOULED, PRESSURE TO TEST THIS CONCLUSION WAS
SLOW TO MOUNT.  RULE 41(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
INCORPORATED THE GOULED CATEGORIES AS LIMITATIONS ON FEDERAL
AUTHORITIES TO ISSUE WARRANTS, AND MAPP V. OHIO, 367 U.S. 643, ONLY
RECENTLY MADE THE "MERE EVIDENCE" RULE A PROBLEM IN THE STATE COURTS. 
PRESSURE AGAINST THE RULE IN THE FEDERAL COURTS HAS TAKEN THE FORM
RATHER OF BROADENING THE CATEGORIES OF EVIDENCE SUBJECT TO SEIZURE,
THEREBY CREATING CONSIDERABLE CONFUSION IN THE LAW.  SEE, E.G., NOTE,
54 GEO. L.J. 593, 607-621 (1966). 

THE RATIONALE MOST FREQUENTLY SUGGESTED FOR THE RULE PREVENTING THE
SEIZURE OF EVIDENCE IS THAT "LIMITATIONS UPON THE FRUIT TO BE GATHERED
TEND TO LIMIT THE QUEST ITSELF."  UNITED STATES V. POLLER, 43 F.2D 911,
914 (C.A.2D CIR. 1930).  BUT PRIVACY "WOULD BE JUST AS WELL SERVED BY A
RESTRICTION ON SEARCH TO THE EVEN-NUMBERED DAYS OF THE MONTH  ...  .
AND IT WOULD HAVE THE EXTRA ADVANTAGE OF AVOIDING HAIR-SPLITTING
QUESTIONS  ...  ."  KAPLAN, OP. CIT. SUPRA, AT 479.  THE "MERE
EVIDENCE" LIMITATION HAS SPAWNED EXCEPTIONS SO NUMEROUS AND CONFUSION
SO GREAT, IN FACT, THAT IT IS QUESTIONABLE WHETHER IT AFFORDS
MEANINGFUL PROTECTION.  BUT IF ITS REJECTION DOES ENLARGE THE AREA OF
PERMISSIBLE SEARCHES, THE INTRUSIONS ARE NEVERTHELESS MADE AFTER
FULFILLING THE PROBABLE CAUSE AND PARTICULARITY REQUIREMENTS OF THE
FOURTH AMENDMENT AND AFTER THE INTERVENTION OF "A NEUTRAL AND DETACHED
MAGISTRATE  ...  ."  JOHNSON V. UNITED STATES, 333 U.S. 10, 14.  THE
FOURTH AMENDMENT ALLOWS INTRUSIONS UPON PRIVACY UNDER THESE
CIRCUMSTANCES, AND THERE IS NO VIABLE REASON TO DISTINGUISH INTRUSIONS
TO SECURE "MERE EVIDENCE" FROM INTRUSIONS TO SECURE FRUITS,
INSTRUMENTALITIES, OR CONTRABAND. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  HARRIS V. UNITED STATES, 331 U.S. 145, 154; SEE ALSO GOULED V.
UNITED STATES, 255 U.S. 298; UNITED STATES V. LEFKOWITZ, 285 U.S. 452,
465-466; UNITED STATES V. RABINOWITZ, 339 U.S. 56, 64, N. 6; ABEL V.
UNITED STATES, 362 U.S. 217, 234-235. 

FN2  HAYDEN DID NOT APPEAL FROM HIS CONVICTION.  HE FIRST SOUGHT
RELIEF BY AN APPLICATION UNDER THE MARYLAND POST CONVICTION PROCEDURE
ACT WHICH WAS DENIED WITHOUT HEARING.  THE MARYLAND COURT OF APPEALS
REVERSED AND REMANDED FOR A HEARING.  233 MD. 613, 195 A.2D 692.  THE
TRIAL COURT DENIED RELIEF AFTER HEARING, CONCLUDING "THAT THE SEARCH OF
HIS HOME AND THE SEIZURE OF THE ARTICLES IN QUESTION WERE PROPER."  HIS
APPLICATION FOR FEDERAL HABEAS CORPUS RELIEF RESULTED, AFTER HEARING IN
THE DISTRICT COURT, IN THE SAME CONCLUSION. 

FN3  THE STATE CLAIMS THAT, SINCE HAYDEN FAILED TO RAISE THE SEARCH
AND SEIZURE QUESTION AT TRIAL, HE DELIBERATELY BYPASSED STATE REMEDIES
AND SHOULD BE DENIED AN OPPORTUNITY TO ASSERT HIS CLAIM IN FEDERAL
COURT.  SEE HENRY V. MISSISSIPPI, 379 U.S. 443; FAY V. NOIA, 372 U.S.
391.  WHETHER OR NOT THE MARYLAND COURT OF APPEALS ACTUALLY INTENDED,
WHEN IT REVERSED THE STATE TRIAL COURT'S DENIAL OF POST-CONVICTION
RELIEF, THAT HAYDEN BE AFFORDED A HEARING ON THE MERITS OF HIS CLAIM,
IT IS CLEAR THAT THE TRIAL COURT SO UNDERSTOOD THE ORDER OF THE COURT
OF APPEALS.  A HEARING WAS HELD IN THE STATE COURTS, AND THE CLAIM
DENIED ON THE MERITS.  IN THIS CIRCUMSTANCE, THE FOURTH CIRCUIT WAS
CORRECT IN REJECTING THE STATE'S DELIBERATE-BYPASSING CLAIM.  THE
DELIBERATE-BYPASS RULE IS APPLICABLE ONLY "TO AN APPLICANT WHO HAS
DELIBERATELY BY-PASSED THE ORDERLY PROCEDURE OF THE STATE COURTS AND IN
SO DOING HAS FORFEITED HIS STATE COURT REMEDIES."  FAY V. NOIA, SUPRA,
372 U.S., AT 438.  BUT SEE NELSON V. CALIFORNIA, 346 F.2D 73, 82 (C.A.
9TH CIR. 1965). 

FN4  THE STATE POSTCONVICTION COURT FOUND THAT MRS. HAYDEN "GAVE THE
POLICEMAN PERMISSION TO ENTER THE HOME."  THE FEDERAL HABEAS CORPUS
COURT STATED IT " WOULD BE JUSTIFIED IN ACCEPTING THE FINDINGS OF
HISTORICAL FACT MADE BY JUDGE SODARO ON THAT ISSUE  ...  ," BUT
CONCLUDED THAT RESOLUTION OF THE ISSUE WOULD BE UNNECESSARY, BECAUSE
THE OFFICERS WERE "JUSTIFIED IN ENTERING AND SEARCHING THE HOUSE FOR
THE FELON, FOR HIS WEAPONS AND FOR THE FRUITS OF THE ROBBERY." 

FN5  THE OFFICER WAS ASKED IN THE DISTRICT COURT WHETHER HE FOUND THE
MONEY.  HE ANSWERED THAT HE DID NOT, AND STATED:  "BY THE TIME I HAD
GOTTEN DOWN INTO THE BASEMENT I HEARD SOMEONE SAY UPSTAIRS, 'THERE'S A
MAN UP HERE.'"  HE WAS ASKED:  "WHAT DID YOU DO THEN?"  AND ANSWERED:
"BY THIS TIME I HAD ALREADY DISCOVERED SOME CLOTHING WHICH FIT THE
DESCRIPTION OF THE CLOTHING WORN BY THE SUBJECT THAT WE WERE LOOKING
FOR  ...  ."  IT IS CLEAR FROM THE RECORD AND FROM THE FINDINGS THAT
THE WEAPONS WERE FOUND AFTER OR AT THE SAME TIME THE POLICE FOUND
HAYDEN. 

FN6  PEOPLE V. THAYER, 63 CAL. 2D 635, 408 P.2D 108, CERT. DENIED,
384 U.S. 908; STATE V. BISACCIA, 45 N.J. 504, 213 A.2D 185.  COMPARE
UNITED STATES V. POLLER, 43 F.2D 911, 914 (C.A.2D CIR. 1930). 

FN7  E.G., CHAFEE, THE PROGRESS OF THE LAW, 1919-1922, 35 HARV. L.
REV. 673 (1922); KAMISAR, THE WIRETAPPING-EAVESDROPPING PROBLEM:  A
PROFESSOR'S VIEW, 44 MINN. L. REV. 891, 914-918 (1960); KAPLAN, SEARCH
AND SEIZURE:  A NO-MAN'S LAND IN THE CRIMINAL LAW, 49 CALIF. L. REV.
474, 478 (1961); COMMENT, 45 N.C.L. REV. 512 (1967); COMMENT, 66 COL.
L. REV. 355 (1966); COMMENT, 20 U. CHI.  L. REV. 319 (1953); COMMENT,
31 YALE L.J. 518 (1922).  COMPARE, E.G., FRAENKEL, CONCERNING SEARCHES
AND SEIZURES, 34 HARV. L. REV. 361 (1921); NOTE, 54 GEO. L.J.  593
(1966). 

FN8  THIS COURT HAS APPROVED THE SEIZURE AND INTRODUCTION OF ITEMS
HAVING ONLY EVIDENTIAL VALUE WITHOUT, HOWEVER, CONSIDERING THE VALIDITY
OF THE DISTINCTION REJECTED TODAY.  SEE SCHMERBER V. CALIFORNIA, 384
U.S. 757; COOPER V. CALIFORNIA, 386 U.S. 58. 

FN9  E.G., STANFORD V. TEXAS, 379 U.S. 476, 481-485; MARCUS V. SEARCH
WARRANT, 367 U.S. 717, 724-729; FRANK V. MARYLAND, 359 U.S. 360, 363
365.  SEE GENERALLY LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION (1937); LANDYNSKI, SEARCH
AND SEIZURE AND THE SUPREME COURT (1966). 

FN10  BOTH WEEKS AND ADAMS WERE WRITTEN BY JUSTICE DAY, AND JOINED BY
SEVERAL OF THE SAME JUSTICES, INCLUDING JUSTICE HOLMES. 

FN11  AT COMMON LAW THE GOVERNMENT DID ASSERT A SUPERIOR PROPERTY
INTEREST WHEN IT SEARCHED LAWFULLY FOR STOLEN PROPERTY, SINCE THE
PROCEDURE THEN FOLLOWED MADE IT NECESSARY THAT THE TRUE OWNER SWEAR
THAT HIS GOODS HAD BEEN TAKEN.  BUT NO SUCH PROCEDURE NEED BE FOLLOWED
TODAY; THE GOVERNMENT MAY DEMONSTRATE PROBABLE CAUSE AND LAWFULLY
SEARCH FOR STOLEN PROPERTY EVEN THOUGH THE TRUE OWNER IS UNKNOWN OR
UNAVAILABLE TO REQUEST AND AUTHORIZE THE GOVERNMENT TO ASSERT HIS
INTEREST.   AS TO INSTRUMENTALITIES, THE COURT IN GOULED ALLOWED THEIR
SEIZURE, NOT BECAUSE THE GOVERNMENT HAD SOME PROPERTY INTEREST IN THEM
(UNDER THE ANCIENT, FICTITIOUS FORFEITURE THEORY), BUT BECAUSE THEY
COULD BE USED TO PERPETRATE FURTHER CRIME.  255 U.S., AT 309.  THE SAME
HOLDS TRUE, OF COURSE, FOR "MERE EVIDENCE"; THE PREVENTION OF CRIME IS
SERVED AT LEAST AS MUCH BY ALLOWING THE GOVERNMENT TO IDENTIFY AND
CAPTURE THE CRIMINAL, AS IT IS BY ALLOWING THE SEIZURE OF HIS
INSTRUMENTALITIES.  FINALLY, CONTRABAND IS INDEED PROPERTY IN WHICH THE
GOVERNMENT HOLDS A SUPERIOR INTEREST, BUT ONLY BECAUSE THE GOVERNMENT
DECIDES TO VEST SUCH AN INTEREST IN ITSELF.  AND WHILE THERE MAY BE
LIMITS TO WHAT MAY BE DECLARED CONTRABAND, THE CONCEPT IS HARDLY MORE
THAN A FORM THROUGH WHICH THE GOVERNMENT SEEKS TO PREVENT AND DETER
CRIME.    FN12  GOULED WAS DECIDED ON CERTIFIED QUESTIONS.  THE ONLY
QUESTION WHICH REFERRED TO THE ESPIONAGE ACT OF 1917 STATED:  "ARE
PAPERS OF  ...  EVIDENTIAL VALUE  ...  , WHEN TAKEN UNDER SEARCH
WARRANTS ISSUED PURSUANT TO ACT OF JUNE 15, 1917, FROM THE HOUSE OR
OFFICE OF THE PERSON SO SUSPECTED, - SEIZED AND TAKEN IN VIOLATION OF
THE 4TH AMENDMENT?"  GOULED V. UNITED STATES, NO. 250, OCT. TERM, 1920,
CERTIFICATE, P. 4.  THUS THE FORM IN WHICH THE CASE WAS CERTIFIED MADE
IT DIFFICULT IF NOT IMPOSSIBLE "TO LIMIT THE DECISION TO THE SENSIBLE
PROPOSITION OF STATUTORY CONSTRUCTION, THAT CONGRESS HAD NOT AS YET
AUTHORIZED THE SEIZURE OF PURELY EVIDENTIARY MATERIAL."  CHAFEE, OP.
CIT. SUPRA, AT 699.  THE GOVERNMENT ASSUMED THE VALIDITY OF
PETITIONER'S ARGUMENT THAT ENTICK V. CARRINGTON, BOYD V. UNITED STATES,
AND OTHER AUTHORITIES ESTABLISHED THE CONSTITUTIONAL ILLEGALITY OF
SEIZURES OF PRIVATE PAPERS FOR USE AS EVIDENCE.  GOULED V. UNITED
STATES, SUPRA, BRIEF FOR THE UNITED STATES, P. 50.  IT ARGUED,
COMPLAINING OF THE ABSENCE OF A RECORD, THAT THE PAPERS INTRODUCED IN
EVIDENCE WERE INSTRUMENTALITIES OF CRIME.  THE COURT RULED THAT THE
RECORD BEFORE IT REVEALED NO GOVERNMENT INTEREST IN THE PAPERS OTHER
THAN AS EVIDENCE AGAINST THE ACCUSED.  255 U.S., AT 311. 

SIGNIFICANTLY, ENTICK V. CARRINGTON ITSELF HAS NOT BEEN READ BY THE
ENGLISH COURTS AS MAKING UNLAWFUL THE SEIZURE OF ALL PAPERS FOR USE AS
EVIDENCE.  SEE DILLON V. O'BRIEN, 20 L.R. IR. 300; ELIAS V. PASMORE,
(1934) 2 K.B. 164.  ALTHOUGH DILLON, DECIDED IN 1887, INVOLVED
INSTRUMENTALITIES, THE COURT DID NOT RELY ON THIS FACT, BUT RATHER ON
"THE INTEREST WHICH THE STATE HAS IN A PERSON GUILTY (OR REASONABLY
BELIEVED TO BE GUILTY) OF A CRIME BEING BROUGHT TO JUSTICE  ...  ."  20
L.R. IR., AT 317. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

WHILE I AGREE THAT THE FOURTH AMENDMENT SHOULD NOT BE HELD TO REQUIRE
EXCLUSION FROM EVIDENCE OF THE CLOTHING AS WELL AS THE WEAPONS AND
AMMUNITION FOUND BY THE OFFICERS DURING THE SEARCH, I CANNOT JOIN IN
THE MAJORITY'S BROAD - AND IN MY JUDGMENT, TOTALLY UNNECESSARY -
REPUDIATION OF THE SO-CALLED "MERE EVIDENCE" RULE. 

OUR CONSTITUTION ENVISIONS THAT SEARCHES WILL ORDINARILY FOLLOW
PROCUREMENT BY POLICE OF A VALID SEARCH WARRANT.  SUCH WARRANTS ARE TO
ISSUE ONLY ON PROBABLE CAUSE, AND MUST DESCRIBE WITH PARTICULARITY THE
PERSONS OR THINGS TO BE SEIZED.  THERE ARE EXCEPTIONS TO THIS RULE. 
SEARCHES MAY BE MADE INCIDENT TO A LAWFUL ARREST, AND - AS TODAY'S
DECISION INDICATES - IN THE COURSE OF "HOT PURSUIT."  BUT SEARCHES
UNDER EACH OF THESE EXCEPTIONS HAVE, UNTIL TODAY, BEEN CONFINED TO
THOSE ESSENTIAL TO FULFILL THE PURPOSE OF THE EXCEPTION:  THAT IS, WE
HAVE REFUSED TO PERMIT USE OF ARTICLES THE SEIZURE OF WHICH COULD NOT
BE STRICTLY TIED TO AND JUSTIFIED BY THE EXIGENCIES WHICH EXCUSED THE
WARRANTLESS SEARCH.  THE USE IN EVIDENCE OF WEAPONS SEIZED IN A "HOT
PURSUIT" SEARCH OR SEARCH INCIDENT TO ARREST SATISFIES THIS CRITERION
BECAUSE OF THE NEED TO PROTECT THE ARRESTING OFFICERS FROM WEAPONS TO
WHICH THE SUSPECT MIGHT RESORT.  THE SEARCH FOR AND SEIZURE OF FRUITS
ARE, OF COURSE, JUSTIFIABLE ON INDEPENDENT GROUNDS:  THE FRUITS ARE AN
OBJECT OF THE PURSUIT OR ARREST OF THE SUSPECT, AND SHOULD BE RESTORED
TO THEIR TRUE OWNER.  THE SEIZURE OF CONTRABAND HAS BEEN JUSTIFIED ON
THE GROUND THAT THE SUSPECT HAS NOT EVEN A BARE POSSESSORY RIGHT TO
CONTRABAND.  SEE, E.G., BOYD V. UNITED STATES, 116 U.S. 616, 623-624
(1886); UNITED STATES V. KIRSCHENBLATT, 16 F.2D 202, 203 (C.A.2D CIR.
1926)(L. HAND, J.). 

SIMILARLY, WE HAVE FORBIDDEN THE USE OF ARTICLES SEIZED IN SUCH A
SEARCH UNLESS OBTAINED FROM THE PERSON OF THE SUSPECT OR FROM THE
IMMEDIATE VICINITY.  SINCE A WARRANTLESS SEARCH IS JUSTIFIED ONLY AS
INCIDENT TO AN ARREST OR "HOT PURSUIT," THIS COURT AND OTHERS HAVE HELD
THAT ITS SCOPE DOES NOT INCLUDE PERMISSION TO SEARCH THE ENTIRE
BUILDING IN WHICH THE ARREST OCCURS, OR TO RUMMAGE THROUGH LOCKED
DRAWERS AND CLOSETS, OR TO SEARCH AT ANOTHER TIME OR PLACE.  JAMES V.
LOUISIANA, 382 U.S. 36 (1965); STONER V. CALIFORNIA, 376 U.S. 483, 486
487 (1964); PRESTON V. UNITED STATES, 376 U.S. 364, 367 (1964); UNITED
STATES V. LEFKOWITZ, 285 U.S. 452 (1932); GO-BART CO. V. UNITED STATES,
282 U.S. 344, 358 (1931); AGNELLO V. UNITED STATES, 269 U.S. 20, 30-31
(1925); UNITED STATES V. KIRSCHENBLATT, SUPRA.  (FN1) 

IN THE PRESENT CASE, THE ARTICLES OF CLOTHING ADMITTED INTO EVIDENCE
ARE NOT WITHIN ANY OF THE TRADITIONAL CATEGORIES WHICH DESCRIBE WHAT
MATERIALS MAY BE SEIZED, EITHER WITH OR WITHOUT A WARRANT.  THE
RESTRICTIVENESS OF THESE CATEGORIES HAS BEEN SUBJECTED TO TELLING
CRITICISM, (FN2) AND ALTHOUGH I BELIEVE THAT WE SHOULD APPROACH
EXPANSION OF THESE CATEGORIES WITH THE DIFFIDENCE WHICH THEIR IMPOSING
PROVENANCE COMMANDS, I AGREE THAT THE USE OF IDENTIFYING CLOTHING WORN
IN THE COMMISSION OF A CRIME AND SEIZED DURING "HOT PURSUIT" IS WITHIN
THE SPIRIT AND INTENDMENT OF THE "HOT PURSUIT" EXCEPTION TO THE SEARCH
WARRANT REQUIREMENT.  THAT IS BECAUSE THE CLOTHING IS PERTINENT TO
IDENTIFICATION OF THE PERSON HOTLY PURSUED AS BEING, IN FACT, THE
PERSON WHOSE PURSUIT WAS JUSTIFIED BY CONNECTION WITH THE CRIME.  I
WOULD FRANKLY PLACE THE RULING ON THAT BASIS.  I WOULD NOT DRIVE AN
ENORMOUS AND DANGEROUS HOLE IN THE FOURTH AMENDMENT TO ACCOMMODATE A
SPECIFIC AND, I THINK, REASONABLE EXCEPTION. 

AS MY BROTHER DOUGLAS NOTES, POST, OPPOSITION TO GENERAL SEARCHES IS
A FUNDAMENTAL OF OUR HERITAGE AND OF THE HISTORY OF ANGLO-SAXON LEGAL
PRINCIPLES.  SUCH SEARCHES, PURSUANT TO "WRITS OF ASSISTANCE," WERE ONE
OF THE MATTERS OVER WHICH THE AMERICAN REVOLUTION WAS FOUGHT.  THE VERY
PURPOSE OF THE FOURTH AMENDMENT WAS TO OUTLAW SUCH SEARCHES, WHICH THE
COURT TODAY SANCTIONS.  I FEAR THAT IN GRATUITOUSLY STRIKING DOWN THE
"MERE EVIDENCE" RULE, WHICH DISTINGUISHED MEMBERS OF THIS COURT HAVE
ACKNOWLEDGED AS ESSENTIAL TO ENFORCE THE FOURTH AMENDMENT'S PROHIBITION
AGAINST GENERAL SEARCHES, THE COURT TODAY NEEDLESSLY DESTROYS, ROOT AND
BRANCH, A BASIC PART OF LIBERTY'S HERITAGE. 

FN1  IT IS TRUE THAT THIS COURT HAS NOT ALWAYS BEEN AS VIGILANT AS IT
SHOULD TO ENFORCE THESE TRADITIONAL AND EXTREMELY IMPORTANT
RESTRICTIONS UPON THE SCOPE OF SUCH SEARCHES.  SEE UNITED STATES V.
RABINOWITZ, 339 U.S. 56, 68-86 (1950)(FRANKFURTER, J., DISSENTING);
HARRIS V. UNITED STATES, 331 U.S. 145, 155-198 (1947)(DISSENTING
OPINIONS). 

FN2  SEE, E.G., PEOPLE V. THAYER, 63 CAL. 2D 635, 408 P.2D 108
(1965)(TRAYNOR, C.J.), CERT. DENIED, 384 U.S. 908 (1966); KAPLAN,
SEARCH AND SEIZURE:  A NO-MAN'S LAND IN THE CRIMINAL LAW, 49 CALIF. L.
REV. 474, 478 (1961). 

MR. JUSTICE DOUGLAS, DISSENTING. 

WE START WITH THE FOURTH AMENDMENT WHICH PROVIDES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

THIS CONSTITUTIONAL GUARANTEE, NOW AS APPLICABLE TO THE STATES (MAPP
V. OHIO, 367 U.S. 643) AS TO THE FEDERAL GOVERNMENT, HAS BEEN THOUGHT,
UNTIL TODAY, TO HAVE TWO FACES OF PRIVACY: 

(1)  ONE CREATES A ZONE OF PRIVACY THAT MAY NOT BE INVADED BY THE
POLICE THROUGH RAIDS, BY THE LEGISLATORS THROUGH LAWS, OR BY
MAGISTRATES THROUGH THE ISSUANCE OF WARRANTS. 

(2)  A SECOND CREATES A ZONE OF PRIVACY THAT MAY BE INVADED EITHER BY
THE POLICE IN HOT PURSUIT OR BY A SEARCH INCIDENT TO ARREST OR BY A
WARRANT ISSUED BY A MAGISTRATE ON A SHOWING OF PROBABLE CAUSE. 

THE FIRST HAS BEEN RECOGNIZED FROM EARLY DAYS IN ANGLO-AMERICAN LAW. 
SEARCH WARRANTS, FOR SEIZURE OF STOLEN PROPERTY, THOUGH HAVING AN
ANCIENT LINEAGE, WERE CRITICIZED EVEN BY COKE.  INSTITUTES BK. 4, PP.
176-177. 

AS STATED BY LORD CAMDEN IN ENTICK V. CARRINGTON, 19 HOW.  ST. TR.
1029, 1067, EVEN WARRANTS AUTHORIZING SEIZURE OF STOLEN GOODS WERE
LOOKED UPON WITH DISFAVOR BUT "CREPT INTO THE LAW BY IMPERCEPTIBLE
PRACTICE."  BY THE TIME OF CHARLES II THEY HAD BURST THEIR ORIGINAL
BOUNDS AND WERE USED BY THE STAR CHAMBER TO FIND EVIDENCE AMONG THE
FILES AND PAPERS OF POLITICAL SUSPECTS.  THUS IN THE TRIAL OF ALGERNON
SIDNEY IN 1683 FOR TREASON "PAPERS, WHICH WERE SAID TO BE FOUND IN MY
(SIDNEY'S) HOUSE, WERE PRODUCED AS ANOTHER WITNESS" (9 HOW.  ST. TR.
818, 901) AND THE DEFENDANT WAS EXECUTED.  ID., AT 906-907.  FROM THIS
USE OF PAPERS AS EVIDENCE THERE GREW UP THE PRACTICE OF THE STAR
CHAMBER EMPOWERING A PERSON "TO SEARCH IN ALL PLACES, WHERE BOOKS WERE
PRINTING, IN ORDER TO SEE IF THE PRINTER HAD A LICENCE; AND IF UPON
SUCH SEARCH HE FOUND ANY BOOKS WHICH HE SUSPECTED TO BE LIBELLOUS
AGAINST THE CHURCH OR STATE, HE WAS TO SEIZE THEM, AND CARRY THEM
BEFORE THE PROPER MAGISTRATE."  ENTICK V. CARRINGTON, SUPRA, AT 1069. 
THUS THE GENERAL WARRANT BECAME A POWERFUL INSTRUMENT IN PROCEEDINGS
FOR SEDITIOUS LIBEL AGAINST PRINTERS AND AUTHORS.  IBID.  JOHN WILKES
LED THE CAMPAIGN AGAINST THE GENERAL WARRANT.  BOYD V. UNITED STATES,
116 U.S. 616, 625.  WILKES WON (ENTICK V. CARRINGTON, SUPRA, DECIDED IN
1765); AND LORD CAMDEN'S OPINION NOT ONLY OUTLAWED THE GENERAL WARRANT
(ID., AT 1072) BUT WENT ON TO CONDEMN SEARCHES "FOR EVIDENCE" WITH OR
WITHOUT A GENERAL WARRANT: 

"THERE IS NO PROCESS AGAINST PAPERS IN CIVIL CAUSES.  IT HAS BEEN
OFTEN TRIED, BUT NEVER PREVAILED.  NAY, WHERE THE ADVERSARY HAS BY
FORCE OR FRAUD GOT POSSESSION OF YOUR OWN PROPER EVIDENCE, THERE IS NO
WAY TO GET IT BACK BUT BY ACTION. 

"IN THE CRIMINAL LAW SUCH A PROCEEDING WAS NEVER HEARD OF; AND YET
THERE ARE SOME CRIMES, SUCH FOR INSTANCE AS MURDER, RAPE, ROBBERY, AND
HOUSEBREAKING, TO SAY NOTHING OF FORGERY AND PERJURY, THAT ARE MORE
ATROCIOUS THAN LIBELLING.  BUT OUR LAW HAS PROVIDED NO PAPER-SEARCH IN
THESE CASES TO HELP FORWARD THE CONVICTION. 

"WHETHER THIS PROCEDETH FROM THE GENTLENESS OF THE LAW TOWARDS
CRIMINALS, OR FROM A CONSIDERATION THAT SUCH A POWER WOULD BE MORE
PERNICIOUS TO THE INNOCENT THAN USEFUL TO THE PUBLIC, I WILL NOT SAY. 

"IT IS VERY CERTAIN, THAT THE LAW OBLIGETH NO MAN TO ACCUSE HIMSELF;
BECAUSE THE NECESSARY MEANS OF COMPELLING SELF-ACCUSATION, FALLING UPON
THE INNOCENT AS WELL AS THE GUILTY, WOULD BE BOTH CRUEL AND UNJUST; AND
IT SHOULD SEEM, THAT SEARCH FOR EVIDENCE IS DISALLOWED UPON THE SAME
PRINCIPLE.  THERE TOO THE INNOCENT WOULD BE CONFOUNDED WITH THE
GUILTY."  ID., AT 1073. 

THUS LORD CAMDEN DECIDED TWO THINGS:  (1) THAT SEARCHES FOR EVIDENCE
VIOLATED THE PRINCIPLE AGAINST SELF-INCRIMINATION; (2) THAT GENERAL
WARRANTS WERE VOID. 

THIS DECISION, IN THE VERY FOREFRONT WHEN THE FOURTH AMENDMENT WAS
ADOPTED, UNDERLINES THE CONSTRUCTION THAT IT COVERS SOMETHING OTHER
THAN THE FORM OF THE WARRANT (FN1) AND CREATES A ZONE OF PRIVACY WHICH
NO GOVERNMENT OFFICIAL MAY ENTER. 

THE COMPLAINT OF BOSTONIANS, WHILE INCLUDING THE GENERAL WARRANTS,
WENT TO THE POINT OF POLICE INVASIONS OF PERSONAL SANCTUARIES: 

"'A LIST OF INFRINGEMENTS AND VIOLATIONS OF RIGHTS' DRAWN UP BY THE
BOSTON TOWN MEETING LATE IN 1772 ALLUDED TO A NUMBER OF PERSONAL RIGHTS
WHICH HAD ALLEGEDLY BEEN VIOLATED BY AGENTS OF THE CROWN.  THE LIST
INCLUDED COMPLAINTS AGAINST THE WRITS OF ASSISTANCE WHICH HAD BEEN
EMPLOYED BY ROYAL OFFICERS IN THEIR SEARCHES FOR CONTRABAND.  THE
BOSTONIANS COMPLAINED THAT 'OUR HOUSES AND EVEN OUR BED CHAMBERS ARE
EXPOSED TO BE RANSACKED, OUR BOXES, CHESTS, AND TRUNKS BROKE OPEN,
RAVAGED AND PLUNDERED BY WRETCHES, WHOM NO PRUDENT MAN WOULD VENTURE TO
EMPLOY EVEN AS MENIAL SERVANTS.'"  RUTLAND, THE BIRTH OF THE BILL OF
RIGHTS 25 (1955). 

THE DEBATES CONCERNING THE BILL OF RIGHTS DID NOT FOCUS ON THE
PRECISE POINT WITH WHICH WE HERE DEAL.  THERE WAS MUCH TALK ABOUT THE
GENERAL WARRANTS AND THE FEAR OF THEM.  BUT THERE WAS ALSO SOME
REFERENCE TO THE SANCTITY OF ONE'S HOME AND HIS PERSONAL BELONGINGS,
EVEN INCLUDING THE CLOTHES HE WORE.  THUS IN VIRGINIA, PATRICK HENRY
SAID: 

"THE OFFICERS OF CONGRESS MAY COME UPON YOU NOW, FORTIFIED WITH ALL
THE TERRORS OF PARAMOUNT FEDERAL AUTHORITY.  EXCISEMEN MAY COME IN
MULTITUDES; FOR THE LIMITATION OF THEIR NUMBERS NO MAN KNOWS.  THEY
MAY, UNLESS THE GENERAL GOVERNMENT BE RESTRAINED BY A BILL OF RIGHTS,
OR SOME SIMILAR RESTRICTION, GO INTO YOUR CELLARS AND ROOMS, AND
SEARCH, RANSACK, AND MEASURE, EVERY THING YOU EAT, DRINK, AND WEAR. 
THEY OUGHT TO BE RESTRAINED WITHIN PROPER BOUNDS."  3 ELLIOT'S DEBATES
448-449. 

THIS INDICATES THAT THE FOURTH AMENDMENT HAS THE DUAL ASPECT THAT I
HAVE MENTIONED.  CERTAINLY THE DEBATES NOWHERE SUGGEST THAT IT WAS
CONCERNED ONLY WITH REGULATING THE FORM OF WARRANTS. 

THIS IS BORNE OUT BY WHAT HAPPENDED IN THE CONGRESS.  IN THE HOUSE
THE ORIGINAL DRAFT READ AS FOLLOWS: 

"THE RIGHT OF THE PEOPLE TO BE SECURED IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, SHALL NOT BE VIOLATED BY WARRANTS ISSUING WITHOUT
PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND NOT PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED AND THE PERSONS OR THINGS TO BE
SEIZED."  1 ANNALS OF CONG. 754. 

THAT WAS AMENDED TO READ "THE RIGHT OF THE PEOPLE TO BE SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE
SEIZURES AND SEARCHES," ETC.  IBID.  MR. BENSON, CHAIRMAN OF A
COMMITTEE OF THREE TO ARRANGE THE AMENDMENTS, OBJECTED TO THE WORDS "BY
WARRANTS ISSUING" AND PROPOSED TO ALTER THE AMENDMENT SO AS TO READ
"AND NO WARRANT SHALL ISSUE."  IBID.  BUT BENSON'S AMENDMENT WAS
DEFEATED.  IBID.  AND IF THE STORY HAD ENDED THERE, IT WOULD BE CLEAR
THAT THE FOURTH AMENDMENT TOUCHED ONLY THE FORM OF THE WARRANTS AND THE
MANNER OF THEIR ISSUANCE.  BUT WHEN THE BENSON COMMITTEE LATER REPORTED
THE FOURTH AMENDMENT TO THE HOUSE, IT WAS IN THE FORM HE HAD EARLIER
PROPOSED AND WAS THEN ACCEPTED.  1 ANNALS OF CONG. 779.  THE SENATE
AGREED.  SENATE JOURNAL AUGUST 25, 1789.    THUS IT IS CLEAR THAT THE
FOURTH AMENDMENT HAS TWO FACES OF PRIVACY, A CONCLUSION EMPHASIZED BY
LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION 103 (1937):    "AS REPORTED BY THE COMMITTEE
OF ELEVEN AND CORRECTED BY GERRY, THE AMENDMENT WAS A ONE-BARRELLED
AFFAIR, DIRECTED APPARENTLY ONLY TO THE ESSENTIALS OF A VALID WARRANT. 
THE GENERAL PRINCIPLE OF FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE
SEEMS TO HAVE BEEN STATED ONLY BY WAY OF PREMISE, AND THE POSITIVE
INHIBITION UPON ACTION BY THE FEDERAL GOVERNMENT LIMITED CONSEQUENTLY
TO THE ISSUANCE OF WARRANTS WITHOUT PROBABLE CAUSE, ETC.  THAT BENSON
INTERPRETED IT IN THIS LIGHT IS SHOWN BY HIS ARGUMENT THAT ALTHOUGH THE
CLAUSE WAS GOOD AS FAR AS IT WENT, IT WAS NOT SUFFICIENT, AND BY THE
CHANGE WHICH HE ADVOCATED TO OBVIATE THIS OBJECTION.  THE PROVISION AS
HE PROPOSED IT CONTAINED TWO CLAUSES.  THE GENERAL RIGHT OF SECURITY
FROM UNREASONABLE SEARCH AND SEIZURE WAS GIVEN A SANCTION OF ITS OWN
AND THE AMENDMENT THUS INTENTIONALLY GIVEN A BROADER SCOPE.  THAT THE
PROHIBITION AGAINST 'UNREASONABLE SEARCHES' WAS INTENDED, ACCORDINGLY,
TO COVER SOMETHING OTHER THAN THE FORM OF THE WARRANT IS A QUESTION NO
LONGER LEFT TO IMPLICATION TO BE DERIVED FROM THE PHRASEOLOGY OF THE
AMENDMENT." 

LORD CAMDEN'S TWOFOLD CLASSIFICATION OF ZONES OF PRIVACY WAS SAID BY
COOLEY TO BE REFLECTED IN THE FOURTH AMENDMENT: 

"THE WARRANT IS NOT ALLOWED FOR THE PURPOSE OF OBTAINING EVIDENCE OF
AN INTENDED CRIME; BUT ONLY AFTER LAWFUL EVIDENCE OF AN OFFENCE
ACTUALLY COMMITTED.  NOR EVEN THEN IS IT ALLOWABLE TO INVADE ONE'S
PRIVACY FOR THE SOLE PURPOSE OF OBTAINING EVIDENCE AGAINST HIM, EXCEPT
IN A FEW SPECIAL CASES WHERE THAT WHICH IS THE SUBJECT OF THE CRIME IS
SUPPOSED TO BE CONCEALED, AND THE PUBLIC OR THE COMPLAINANT HAS AN
INTEREST IN IT OR IN ITS DESTRUCTION."  CONSTITUTIONAL LIMITATIONS 431
432 (7TH ED. 1903). 

AND THAT WAS THE HOLDING OF THE COURT IN BOYD V. UNITED STATES, 116
U.S. 616, DECIDED IN 1886.  MR. JUSTICE BRADLEY REVIEWED BRITISH
HISTORY, INCLUDING ENTICK V. CARRINGTON, SUPRA, AND AMERICAN HISTORY
UNDER THE BILL OF RIGHTS AND SAID: 

"THE SEARCH FOR AND SEIZURE OF STOLEN OR FORFEITED GOODS, OR GOODS
LIABLE TO DUTIES AND CONCEALED TO AVOID THE PAYMENT THEREOF, ARE
TOTALLY DIFFERENT THINGS FROM A SEARCH FOR AND SEIZURE OF A MAN'S
PRIVATE BOOKS AND PAPERS FOR THE PURPOSE OF OBTAINING INFORMATION
THEREIN CONTAINED, OR OF USING THEM AS EVIDENCE AGAINST HIM.  THE TWO
THINGS DIFFER TOTO COELO.  IN THE ONE CASE, THE GOVERNMENT IS ENTITLED
TO THE POSSESSION OF THE PROPERTY; IN THE OTHER IT IS NOT."  ID., AT
623. 

WHAT MR. JUSTICE BRADLEY SAID ABOUT STOLEN OR FORFEITED GOODS OR
CONTRABAND IS, OF COURSE, NOT ACCURATE IF READ TO MEAN THAT THEY MAY BE
SEIZED AT ANY TIME EVEN WITHOUT A WARRANT OR NOT INCIDENT TO AN ARREST
THAT IS LAWFUL.  THE RIGHT TO SEIZE CONTRABAND IS NOT ABSOLUTE.  IF THE
SEARCH LEADING TO DISCOVERY OF AN ILLICIT ARTICLE IS NOT INCIDENTAL TO
A LAWFUL ARREST OR NOT AUTHORIZED BY A SEARCH WARRANT, THE FACT THAT
CONTRABAND IS DISCOVERED DOES NOT MAKE THE SEIZURE CONSTITUTIONAL. 
TRUPIANO V. UNITED STATES, 334 U.S. 699, 705; MCDONALD V. UNITED
STATES, 335 U.S. 451; HENRY V. UNITED STATES, 361 U.S. 98, 103; BECK V.
OHIO, 379 U.S. 89; AGUILAR V. TEXAS, 378 U.S. 108. 

THAT IS NOT OUR QUESTION.  OUR QUESTION IS WHETHER THE GOVERNMENT,
THOUGH ARMED WITH A PROPER SEARCH WARRANT OR THOUGH MAKING A SEARCH
INCIDENT TO AN ARREST, MAY SEIZE, AND USE AT THE TRIAL, TESTIMONIAL
EVIDENCE, WHETHER IT WOULD OTHERWISE BE BARRED BY THE FIFTH AMENDMENT
OR WOULD BE FREE FROM SUCH STRICTURES.  THE TEACHING OF BOYD IS THAT
SUCH EVIDENCE, THOUGH SEIZED PURSUANT TO A LAWFUL SEARCH, IS
INADMISSIBLE. 

THAT DOCTRINE HAD ITS FULL FLOWERING IN GOULED V. UNITED STATES, 255
U.S. 298, WHERE AN OPINION WAS WRITTEN BY MR. JUSTICE CLARKE FOR A
UNANIMOUS COURT THAT INCLUDED BOTH MR. JUSTICE HOLMES AND MR. JUSTICE
BRANDEIS.  THE PROSECUTION WAS FOR DEFRAUDING THE GOVERNMENT UNDER
PROCUREMENT CONTRACTS.  DOCUMENTS WERE TAKEN FROM DEFENDANT'S BUSINESS
OFFICE UNDER A SEARCH WARRANT AND USED AT THE TRIAL AS EVIDENCE AGAINST
HIM.  STOLEN OR FORGED PAPERS COULD BE SO SEIZED, THE COURT SAID; SO
COULD LOTTERY TICKETS; SO COULD CONTRABAND; SO COULD PROPERTY IN WHICH
THE PUBLIC HAD AN INTEREST, FOR REASONS TRACING BACK TO WARRANTS
ALLOWING THE SEIZURE OF STOLEN PROPERTY.  BUT THE PAPERS OR DOCUMENTS
FELL IN NONE OF THOSE CATEGORIES AND THE COURT THEREFORE HELD THAT EVEN
THOUGH THEY HAD BEEN TAKEN UNDER A WARRANT, THEY WERE INADMISSIBLE AT
THE TRIAL AS NOT EVEN A WARRANT, THOUGH OTHERWISE PROPER AND REGULAR,
COULD BE USED "FOR THE PURPOSE OF MAKING SEARCH TO SECURE EVIDENCE" OF
A CRIME.  ID., AT 309.  THE USE OF THOSE DOCUMENTS AGAINST THE ACCUSED
MIGHT, OF COURSE, VIOLATE THE FIFTH AMENDMENT.  ID., AT 311.  BUT
WHATEVER MAY BE THE INTRINSIC NATURE OF THE EVIDENCE, THE OWNER IS THEN
"THE UNWILLING SOURCE OF THE EVIDENCE" (ID., AT 306), THERE BEING NO
DIFFERENCE SO FAR AS THE FIFTH AMENDMENT IS CONCERNED "WHETHER HE BE
OBLIGED TO SUPPLY EVIDENCE AGAINST HIMSELF OR WHETHER SUCH EVIDENCE BE
OBTAINED BY AN ILLEGAL SEARCH OF HIS PREMISES AND SEIZURE OF HIS
PRIVATE PAPERS."  IBID. 

WE HAVE, TO BE SURE, BREACHED THAT BARRIER, SCHMERBER V. CALIFORNIA,
384 U.S. 757, BEING A CONSPICUOUS EXAMPLE.  BUT I DISSENTED THEN AND
RENEW MY OPPOSING VIEW AT THIS TIME.  THAT WHICH IS TAKEN FROM A PERSON
WITHOUT HIS CONSENT AND USED AS TESTIMONIAL EVIDENCE VIOLATES THE FIFTH
AMENDMENT. 

THAT WAS THE HOLDING IN GOULED; AND THAT WAS THE LINE OF AUTHORITY
FOLLOWED BY JUDGE SIMON SOBELOFF, WRITING FOR THE COURT OF APPEALS FOR
REVERSAL IN THIS CASE.  363 F.2D 647.  AS HE SAID, EVEN IF WE ASSUME
THAT THE SEARCH WAS LAWFUL, THE ARTICLES OF CLOTHING SEIZED WERE OF
EVIDENTIAL VALUE ONLY AND UNDER GOULED COULD NOT BE USED AT THE TRIAL
AGAINST PETITIONER.  AS HE SAID, THE FOURTH AMENDMENT GUARANTEES THE
RIGHT OF THE PEOPLE TO BE SECURE "IN THEIR PERSONS, HOUSES, PAPERS, AND
EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES."  ARTICLES OF
CLOTHING ARE COVERED AS WELL AS PAPERS.  ARTICLES OF CLOTHING MAY BE OF
EVIDENTIAL VALUE AS MUCH AS DOCUMENTS OR PAPERS. 

JUDGE LEARNED HAND STATED A PART OF THE PHILOSOPHY OF THE FOURTH
AMENDMENT IN UNITED STATES V. POLLER, 43 F.2D 911, 914: 

"IT IS ONLY FAIR TO OBSERVE THAT THE REAL EVIL AIMED AT BY THE FOURTH
AMENDMENT IS THE SEARCH ITSELF, THAT INVASION OF A MAN'S PRIVACY WHICH
CONSISTS IN RUMMAGING ABOUT AMONG HIS EFFECTS TO SECURE EVIDENCE
AGAINST HIM.  IF THE SEARCH IS PERMITTED AT ALL, PERHAPS IT DOES NOT
MAKE SO MUCH DIFFERENCE WHAT IS TAKEN AWAY, SINCE THE OFFICERS WILL
ORDINARILY NOT BE INTERESTED IN WHAT DOES NOT INCRIMINATE, AND THERE
CAN BE NO SOUND POLICY IN PROTECTING WHAT DOES.  NEVERTHELESS,
LIMITATIONS UPON THE FRUIT TO BE GATHERED TEND TO LIMIT THE QUEST
ITSELF  ...  ." 

THE RIGHT OF PRIVACY PROTECTED BY THE FOURTH AMENDMENT RELATES IN
PART OF COURSE TO THE PRECINCTS OF THE HOME OR THE OFFICE.  BUT IT DOES
NOT MAKE THEM SANCTUARIES WHERE THE LAW CAN NEVER REACH.  THERE ARE
SUCH PLACES IN THE WORLD.  A MOSQUE IN FEZ, MOROCCO, THAT I HAVE
VISITED, IS BY CUSTOM A SANCTUARY WHERE ANY REFUGEE MAY HIDE, SAFE FROM
POLICE INTRUSION.  WE HAVE NO SUCH SANCTUARIES HERE.   A POLICEMAN IN
"HOT PURSUIT" OR AN OFFICER WITH A SEARCH WARRANT CAN ENTER ANY HOUSE,
ANY ROOM, ANY BUILDING, ANY OFFICE.  THE PRIVACY OF THOSE PLACES IS OF
COURSE PROTECTED AGAINST INVASION EXCEPT IN LIMITED SITUATIONS.  THE
FULL PRIVACY PROTECTED BY THE FOURTH AMENDMENT IS, HOWEVER, REACHED
WHEN WE COME TO BOOKS, PAMPHLETS, PAPERS, LETTERS, DOCUMENTS, AND OTHER
PERSONAL EFFECTS.  UNLESS THEY ARE CONTRABAND OR INSTRUMENTS OF THE
CRIME, THEY MAY NOT BE REACHED BY ANY WARRANT NOR MAY THEY BE LAWFULLY
SEIZED BY THE POLICE WHO ARE IN "HOT PURSUIT."  BY REASON OF THE FOURTH
AMENDMENT THE POLICE MAY NOT RUMMAGE AROUND AMONG THESE PERSONAL
EFFECTS, NO MATTER HOW FORMALLY PERFECT THEIR AUTHORITY MAY APPEAR TO
BE.  THEY MAY NOT SEIZE THEM.  IF THEY DO, THOSE ARTICLES MAY NOT BE
USED IN EVIDENCE.  ANY INVASION WHATSOEVER OF THOSE PERSONAL EFFECTS IS
"UNREASONABLE" WITHIN THE MEANING OF THE FOURTH AMENDMENT.  THAT IS THE
TEACHING OF ENTICK V. CARRINGTON, BOYD V. UNITED STATES, AND GOULED V.
UNITED STATES. 

SOME SEEK TO EXPLAIN ENTICK V. CARRINGTON ON THE GROUND THAT IT DEALT
WITH SEDITIOUS LIBEL AND THAT ANY SEARCH FOR POLITICAL TRACTS OR
LETTERS UNDER OUR BILL OF RIGHTS WOULD BE UNLAWFUL PER SE BECAUSE OF
THE FIRST AMENDMENT AND THEREFORE "UNREASONABLE" UNDER THE FOURTH. 
THAT ARGUMENT MISSES THE MAIN POINT.  A PROSECUTION FOR SEDITIOUS LIBEL
WOULD OF COURSE BE UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT BECAUSE
IT BARS LAWS "ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS."  THE
FIRST AMENDMENT ALSO HAS A PENUMBRA, FOR WHILE IT PROTECTS ONLY
"SPEECH" AND "PRESS" IT ALSO PROTECTS RELATED RIGHTS SUCH AS THE RIGHT
OF ASSOCIATION.  SEE NAACP V. ALABAMA, 357 U.S. 449, 460, 462; BATES V.
LITTLE ROCK, 361 U.S. 516, 523; SHELTON V. TUCKER, 364 U.S. 479, 486;
LOUISIANA V. NAACP, 366 U.S. 293, 296; AND NAACP V. BUTTON, 371 U.S.
415, 430-431.  SO IT COULD BE HELD, QUITE APART FROM THE FOURTH
AMENDMENT, THAT ANY PROBING INTO THE AREA OF OPINIONS AND BELIEFS WOULD
BE BARRED BY THE FIRST AMENDMENT.  THAT IS THE ESSENCE OF WHAT WE SAID
IN WATKINS V. UNITED STATES, 354 U.S. 178, 197: 

"CLEARLY, AN INVESTIGATION IS SUBJECT TO THE COMMAND THAT THE
CONGRESS SHALL MAKE NO LAW ABRIDGING FREEDOM OF SPEECH OR PRESS OR
ASSEMBLY.  WHILE IT IS TRUE THAT THERE IS NO STATUTE TO BE REVIEWED,
AND THAT AN INVESTIGATION IS NOT A LAW, NEVERTHELESS AN INVESTIGATION
IS PART OF LAWMAKING.  IT IS JUSTIFIED SOLELY AS AN ADJUNCT TO THE
LEGISLATIVE PROCESS.  THE FIRST AMENDMENT MAY BE INVOKED AGAINST
INFRINGEMENT OF THE PROTECTED FREEDOMS BY LAW OR BY LAWMAKING." 

BUT THE PRIVACY PROTECTED BY THE FOURTH AMENDMENT IS MUCH WIDER THAN
THE ONE PROTECTED BY THE FIRST.  BOYD V. UNITED STATES WAS A FORFEITURE
PROCEEDING UNDER THE CUSTOMS REVENUE LAW AND THE PAPER HELD TO BE
BEYOND THE REACH OF THE FOURTH AMENDMENT WAS AN INVOICE COVERING THE
IMPORTED GOODS.  116 U.S., AT 617-619, 638.  AND AS NOTED, GOULED V.
UNITED STATES INVOLVED A PROSECUTION FOR DEFRAUDING THE GOVERNMENT
UNDER PROCUREMENT CONTRACTS AND THE PAPERS HELD PROTECTED AGAINST
SEIZURE, EVEN UNDER A TECHNICALLY PROPER WARRANT, WERE (1) AN
UNEXECUTED FORM OF CONTRACT BETWEEN DEFENDANT AND ANOTHER PERSON; (2) A
WRITTEN CONTRACT SIGNED BY DEFENDANT AND ANOTHER PERSON; AND (3) A BILL
FOR DISBURSEMENT AND PROFESSIONAL SERVICES RENDERED BY THE ATTORNEY TO
THE DEFENDANT.  255 U.S., AT 306-307. 

THE CONSTITUTIONAL PHILOSOPHY IS, I THINK, CLEAR.  THE PERSONAL
EFFECTS AND POSSESSIONS OF THE INDIVIDUAL (ALL CONTRABAND AND THE LIKE
EXCEPTED) ARE SACROSANCT FROM PRYING EYES, FROM THE LONG ARM OF THE
LAW, FROM ANY RUMMAGING BY POLICE.  PRIVACY INVOLVES THE CHOICE OF THE
INDIVIDUAL TO DISCLOSE OR TO REVEAL WHAT HE BELIEVES, WHAT HE THINKS,
WHAT HE POSSESSES.  THE ARTICLE MAY BE A NONDESCRIPT WORK OF ART, A
MANUSCRIPT OF A BOOK, A PERSONAL ACCOUNT BOOK, A DIARY, INVOICES,
PERSONAL CLOTHING, JEWELRY, OR WHATNOT.  THOSE WHO WROTE THE BILL OF
RIGHTS BELIEVED THAT EVERY INDIVIDUAL NEEDS BOTH TO COMMUNICATE WITH
OTHERS AND TO KEEP HIS AFFAIRS TO HIMSELF.  THAT DUAL ASPECT OF PRIVACY
MEANS THAT THE INDIVIDUAL SHOULD HAVE THE FREEDOM TO SELECT FOR HIMSELF
THE TIME AND CIRCUMSTANCES WHEN HE WILL SHARE HIS SECRETS WITH OTHERS
AND DECIDE THE EXTENT OF THAT SHARING.  (FN2)  THIS IS HIS PREROGATIVE
NOT THE STATES'.  THE FRAMERS, WHO WERE AS KNOWLEDGEABLE AS WE, KNEW
WHAT POLICE SURVEILLANCE MEANT AND HOW THE PRACTICE OF RUMMAGING
THROUGH ONE'S PERSONAL EFFECTS COULD DESTROY FREEDOM. 

IT WAS IN THAT TRADITION THAT WE HELD IN GRISWOLD V. CONNECTICUT, 381
U.S. 479, THAT LAWMAKERS COULD NOT, AS RESPECTS HUSBAND AND WIFE AT
LEAST, MAKE THE USE OF CONTRACEPTIVES A CRIME.  WE SPOKE OF THE
PRONOUNCEMENT IN BOYD V. UNITED STATES THAT THE FOURTH AND FIFTH
AMENDMENTS PROTECTED THE PERSON AGAINST ALL GOVERNMENTAL INVASIONS "OF
THE SANCTITY OF A MAN'S HOME AND THE PRIVACIES OF LIFE."  116 U.S., AT
630.  WE SPOKE OF THE "RIGHT TO PRIVACY" OF THE FOURTH AMENDMENT UPHELD
BY MAPP V. OHIO, 367 U.S. 643, 656, AND OF THE MANY OTHER CONTROVERSIES
"OVER THESE PENUMBRAL RIGHTS OF 'PRIVACY AND REPOSE.'"  381 U.S., AT
485.  AND WE ADDED: 

"WOULD WE ALLOW THE POLICE TO SEARCH THE SACRED PRECINCTS OF MARITAL
BEDROOMS FOR TELLTALE SIGNS OF THE USE OF CONTRACEPTIVES?  THE VERY
IDEA IS REPULSIVE TO THE NOTIONS OF PRIVACY SURROUNDING THE MARRIAGE
RELATIONSHIP. 

"WE DEAL WITH A RIGHT OF PRIVACY OLDER THAN THE BILL OF RIGHTS -
OLDER THAN OUR POLITICAL PARTIES, OLDER THAN OUR SCHOOL SYSTEM. 
MARRIAGE IS A COMING TOGETHER FOR BETTER OR FOR WORSE, HOPEFULLY
ENDURING, AND INTIMATE TO THE DEGREE OF BEING SACRED.  IT IS AN
ASSOCIATION THAT PROMOTES A WAY OF LIFE, NOT CAUSES; A HARMONY IN
LIVING, NOT POLITICAL FAITHS; A BILATERAL LOYALTY, NOT COMMERCIAL OR
SOCIAL PROJECTS.  YET IT IS AN ASSOCIATION FOR AS NOBLE A PURPOSE AS
ANY INVOLVED IN OUR PRIOR DECISIONS."  ID., AT 485-486. 

THIS RIGHT OF PRIVACY, SUSTAINED IN GRISWOLD, IS KIN TO THE RIGHT OF
PRIVACY CREATED BY THE FOURTH AMENDMENT.  THAT THERE IS A ZONE THAT NO
POLICE CAN ENTER - WHETHER IN "HOT PURSUIT" OR ARMED WITH A
METICULOUSLY PROPER WARRANT - HAS BEEN EMPHASIZED BY BOYD AND BY
GOULED.  THEY HAVE BEEN CONSISTENTLY AND CONTINUOUSLY APPROVED.  (FN3)
I WOULD ADHERE TO THEM AND LEAVE WITH THE INDIVIDUAL THE CHOICE OF
OPENING HIS PRIVATE EFFECTS (APART FROM CONTRABAND AND THE LIKE) TO THE
POLICE OR KEEPING THEIR CONTENTS A SECRET AND THEIR INTEGRITY
INVIOLATE.  THE EXISTENCE OF THAT CHOICE IS THE VERY ESSENCE OF THE
RIGHT OF PRIVACY.  WITHOUT IT THE FOURTH AMENDMENT AND THE FIFTH ARE
READY INSTRUMENTS FOR THE POLICE STATE THAT THE FRAMERS SOUGHT TO
AVOID.    FN1  THE VIRGINIA DECLARATION OF RIGHTS, JUNE 12, 1776, IN
ITS ARTICLE 10 PROCLAIMED ONLY AGAINST "GENERAL WARRANTS."  SEE
RUTLAND, THE BIRTH OF THE BILL OF RIGHTS 232 (1955).  AND THE
DEFINITION OF THE GENERAL WARRANT INCLUDED NOT ONLY A LICENSE TO SEARCH
FOR EVERYTHING IN A NAMED PLACE BUT TO SEARCH ALL AND ANY PLACES IN THE
DISCRETION OF THE OFFICERS.  FRISBIE V. BUTLER, 1 KIRBY 213 (CONN.). 
SEE GENERALLY QUINCY'S MASS. REP. 1761-1772 APPENDIX I FOR THE FORMS OF
THESE WRITS. 

FN2  THIS CONCEPT OF THE RIGHT OF PRIVACY PROTECTED BY THE FOURTH
AMENDMENT IS MIRRORED IN THE CASES INVOLVING COLLATERAL ASPECTS OF THE
PROBLEM PRESENTED IN THIS CASE: 

"IT HAS, SIMILARLY, BEEN HELD THAT A DEFENDANT CANNOT COMPLAIN OF THE
SEIZURE OF BOOKS AND PAPERS NEITHER HIS OWN, NOR IN HIS POSSESSION.  IT
IS ALSO THE WELL-SETTLED RULE THAT WHERE THE PAPERS ARE PUBLIC RECORDS
THE DEFENDANT'S CUSTODY WILL NOT AVAIL HIM AGAINST THEIR SEIZURE. 
WHERE PAPERS ARE TAKEN OUT OF THE CUSTODY OF ONE NOT THEIR OWNER, IT
SEEMS THAT SUCH PERSON CAN OBJECT IF THERE HAS BEEN NO WARRANT, OR IF
THE WARRANT WAS DIRECTED TO HIM, BUT NOT IF THE WARRANT IS DIRECTED TO
THE OWNER.  IF THE DEFENDANT'S PROPERTY IS LAWFULLY OUT OF HIS
POSSESSION IT MAKES NO DIFFERENCE BY WHAT MEANS IT COMES INTO THE
GOVERNMENT'S HANDS AS THERE HAS BEEN NO COMPULSION EXERCISED UPON HIM. 
BUT THE PRIVILEGE EXTENDS TO LETTERS IN THE MAILS.  THE PRIVILEGE
EXTENDS TO THE OFFICE AS WELL AS THE HOME. 

"ON THE OTHER HAND, TO ENABLE A PERSON TO CLAIM THE PRIVILEGE, IT IS
NOT NECESSARY THAT HE BE A PARTY TO ANY PENDING CRIMINAL PROCEEDING. 
HE CAN OBJECT TO THE ILLEGAL SEIZURE OF HIS OWN PROPERTY AND RESIST A
FORCIBLE PRODUCTION OF IT EVEN IF HE IS ONLY CALLED AS A WITNESS. 

"NOR MUST A PERSON BE A CITIZEN TO BE ENTITLED TO THE PROTECTION OF
THE FOURTH AMENDMENT  ...  ."  FRAENKEL, CONCERNING SEARCHES AND
SEIZURES, 34 HARV. L. REV. 361, 375-376. 

FN3  SEE, E.G., CARROLL V. UNITED STATES, 267 U.S. 132, 149-150;
UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 464-466; DAVIS V. UNITED
STATES, 328 U.S. 582, 590, N. 11; HARRIS V. UNITED STATES, 331 U.S.
145, 154; UNITED STATES V. RABINOWITZ, 339 U.S. 56, 64, N. 6; ABEL V.
UNITED STATES, 362 U.S. 217, 234-235. 
..END :





CHICAGO & N.W.R. CO. V. A.,T.&S.F.R. CO. 387 U.S. 326 


NO. 8.  ARGUED APRIL 19, 1967 - DECIDED MAY 29, 1967* - 238 F. SUPP.
528, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 23, UNITED STATES ET AL. V. ATCHISON, TOPEKA &
SANTA FE RAILWAY CO. ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


EASTERN AND MIDWESTERN RAILROAD CARRIERS FILED A COMPLAINT WITH THE
INTERSTATE COMMERCE COMMISSION (ICC) SEEKING HIGHER DIVISIONS OF JOINT
TARIFFS ON TRANSCONTINENTAL FREIGHT TRAFFIC.  IN CONSOLIDATED
PROCEEDINGS, WHICH INVOLVED RATE DIVISIONS AFFECTING ABOUT 300
RAILROADS, THE CARRIERS VOLUNTARILY ALIGNED THEMSELVES INTO THREE
GROUPS, EASTERN, MIDWESTERN AND MOUNTAIN-PACIFIC, AND SUBMITTED
EVIDENCE AND TRIED THE CASE ON THIS GROUP BASIS.  THE ICC FOUND THE
EXISTING DIVISIONS UNLAWFUL AND PRESCRIBED INCREASED DIVISIONS FOR THE
MIDWESTERN AND EASTERN ROADS.  RELYING ON A MOUNTAIN-PACIFIC COST
STUDY, MODIFIED BY THE ICC IN CERTAIN RESPECTS, THE ICC FOUND THAT THE
MOUNTAIN-PACIFIC CARRIERS' REVENUES EXCEEDED SERVICE COSTS BY MUCH
LARGER PERCENTAGES THAN THE REVENUES OF EASTERN OR MIDWESTERN
RAILROADS.  IN ASSESSING COMPARATIVE REVENUE NEEDS, THE ICC FOUND THAT
THE AVERAGE RATE OF RETURN, BASED ON NET RAILWAY OPERATING INCOME AS A
PERCENTAGE OF THE VALUE OF INVESTED PROPERTY, WAS 3.40% FOR THE EASTERN
ROADS, 3.49% FOR THE MIDWESTERN GROUP, AND 4.64% FOR THE MOUNTAIN
PACIFIC CARRIERS.  THE ICC NOTED THAT THE FACT THAT NET OPERATING
INCOME OF MOUNTAIN-PACIFIC ROADS HAD NOT INCREASED AS FAST AS NET
INVESTMENT IN RECENT YEARS WAS DUE PRIMARILY TO DISPROPORTIONATE
PASSENGER DEFICITS THAT OFFSET FAVORABLE FREIGHT INCOME.  BASED ON
REVENUE NEEDS AND SERVICE COSTS THE ICC CONCLUDED THAT THERE SHOULD BE
INCREASES IN THE EASTERN CARRIERS' DIVISIONS, AND SIMPLY INCREASED
THEIR PERCENTAGES OF THE EXISTING RATES BETWEEN WELL-DEFINED SUBAREAS
IN EASTERN TERRITORY AND POINTS IN TRANSCONTINENTAL TERRITORY.  THE ICC
CONCLUDED THAT MIDWESTERN DIVISIONS SHOULD BE INCREASED, FINDING COST
CONSIDERATIONS TO BE THE CONTROLLING FACTOR.  SINCE THE MIDWESTERN
TRANSCONTINENTAL SUBGROUPINGS WERE NOT WELL-DEFINED, THE ICC ADOPTED A
WEIGHTED MILEAGE BASIS OF APPORTIONING THE RATES, DETERMINED THROUGH
THE USE OF DIVISIONAL SCALES, AS SUGGESTED BY BOTH THE MIDWESTERN AND
MOUNTAIN-PACIFIC CARRIERS.  PETITIONS FOR RECONSIDERATION INCLUDED
REQUESTS FOR SPECIAL TREATMENT BY THREE ROADS CLAIMING THAT THE
DIVISIONS HAD AN UNDULY HARSH EFFECT ON THEM.  THE ICC ISSUED A
SUPPLEMENTAL ORDER SUBSTANTIALLY REAFFIRMING ITS ORIGINAL ORDER.  THE
DISTRICT COURT, IN AN ACTION BROUGHT BY CERTAIN MOUNTAIN-PACIFIC
CARRIERS, SET ASIDE THE ICC'S ORDERS.  THE COURT HELD THAT THE ICC'S
FINDINGS WERE INSUFFICIENT BECAUSE MADE ON A GROUP BASIS, THAT THE
INTERSTATE COMMERCE ACT REQUIRED FINDINGS ON AN INDIVIDUAL BASIS WITH
RESPECT TO EACH OF THE 300 RAILROADS INVOLVED, AND THAT THE ICC WAS
OBLIGED TO DETERMINE, IN PRECISE DOLLAR AMOUNT, THE REVENUE NEEDS OF
EACH RAILROAD AND THE REVENUE EFFECT ON EACH ROAD OF THE NEW
DIVISIONS.   ALL OF THE EASTERN AND SOME OF THE MIDWESTERN CARRIERS
REACHED SETTLEMENT AGREEMENTS WITH THE MOUNTAIN-PACIFIC ROADS COVERING
RATE DIVISIONS AFFECTING THEM AND THE REMAINING DISPUTE MAINLY CONCERNS
DIVISIONS BETWEEN THE MOUNTAIN-PACIFIC RAILROADS AND EIGHT PRINCIPAL
MIDWESTERN CARRIERS.  HELD: 

1.  THE ICC HAS AUTHORITY TO TAKE EVIDENCE AND MAKE FINDINGS ON A
GROUP BASIS.  NEW ENGLAND DIVISIONS CASE, 261 U.S. 184.  PP. 340-343. 

(A)  THE "ACTUAL NECESSITIES OF PROCEDURE AND ADMINISTRATION" REQUIRE
PROCEEDING ON A GROUP BASIS IN RATEMAKING AND DIVISIONS CASES INVOLVING
LARGE NUMBERS OF RAILROADS.  PP. 341-342. 

(B)  THE PREMISE THAT EVIDENCE PERTAINING TO A GROUP IS TYPICAL OF
ITS MEMBERS MAY BE CHALLENGED BY AN INDIVIDUAL CARRIER, WHICH WILL BE
ACCORDED INDEPENDENT TREATMENT BY THE ICC UPON PROPER REQUEST.  P.
342. 

(C)  HERE THE CARRIERS VOLUNTARILY ALIGNED THEMSELVES INTO GROUPS AND
REQUESTED NEW DIVISIONS ON A GROUP BASIS.  P. 343. 

2.  THE ICC'S FAILURE TO STATE THE REVENUE NEEDS OF EACH CARRIER IN
TERMS OF PRECISE DOLLAR AMOUNT WAS NOT ERROR.  PP. 343-351. 

(A)  THE ICC FOUND REVENUE NEEDS IMPORTANT FACTORS ONLY FOR THE
EASTERN DIVISIONS, AND SINCE THOSE DIVISIONS ARE NOT IN ISSUE, THE
ICC'S TREATMENT THEREOF IS NO LONGER RELEVANT.  PP. 344-345. 

(B)  ASSUMING THAT THE ICC ATTACHED SOME LIMITED SIGNIFICANCE TO
REVENUE NEEDS IN INCREASING MIDWESTERN DIVISIONS, ITS TREATMENT WAS NOT
LEGALLY INADEQUATE.  THE USE OF COMPARATIVE RATES OF RETURN, ON A VALUE
RATHER THAN BOOK COST BASIS, IS AN APPROPRIATE FOUNDATION FOR THE
EXERCISE OF ADMINISTRATIVE JUDGMENT AS TO RELATIVE FINANCIAL STRENGTH. 
PP. 345-347. 

(C)  THE QUESTION OF PASSENGER DEFICITS WAS OF NEGLIGIBLE RELEVANCE
TO THE ICC'S DECISION TO INCREASE MIDWESTERN DIVISIONS.  PP. 348-351. 

3.  IN LIGHT OF THE INSUBSTANTIALITY OF APPELLEES' ATTACKS ON THE
ICC'S CONCLUSIONS ON SERVICE COSTS, WHICH HAD REASONED FOUNDATION AND
WERE WITHIN THE SCOPE OF ITS EXPERT JUDGMENT, FURTHER DISTRICT COURT
PROCEEDINGS THEREON WOULD NOT BE APPROPRIATE EVEN THOUGH THE DISTRICT
COURT HAD NOT DEALT DIRECTLY WITH THOSE CONCLUSIONS AND IT IS NOT
GENERALLY THIS COURT'S PRACTICE TO INITIALLY REVIEW AN ADMINISTRATIVE
RECORD.  PP. 351-356. 

4.  THE ICC'S "EXPERT DISCRETION" PLAYS A CONSIDERABLE ROLE IN THE
TECHNICAL AREA OF RAILROAD RATE DIVISIONS AND THERE WAS SUFFICIENT
EXPLANATION FOR ITS EXERCISE HERE IN DEVISING A SPECIAL DIVISIONAL
SCALE DESIGNED TO PRODUCE THE MODERATE INCREASES IN MIDWESTERN
DIVISIONS IT FOUND JUSTIFIED BY COST EVIDENCE.  PP. 356-361. 

(A)  THE REMEDY THE ICC CHOSE WAS APPROPRIATELY CALCULATED TO ACHIEVE
MODERATE OVERALL INCREASES IN THE MIDWESTERN DIVISIONS.  PP. 358-359. 

(B)  THE ICC WAS NOT OBLIGATED TO MAKE PRECISE DOLLAR AMOUNT FINDINGS
OF THE EFFECT OF THE NEW DIVISIONS ON EACH OF THE CARRIERS OR CARRIER
GROUPS INVOLVED; IT WAS NOT UNDERTAKING TO TRANSFER SUMS OF MONEY FROM
MOUNTAIN-PACIFIC CARRIERS TO MIDWESTERN ROADS TO MEET THE LATTER
CARRIERS' REVENUE NEEDS.  PP. 359-360. 

(C)  THE ICC DID NOT EXCEED ITS PROPER ROLE IN WEIGHING AND
INTERPRETING THE EVIDENCE WHEN IT PRESCRIBED A MINIMUM DIVISION OF 15%.
PP. 360-361. 

5.  THE ICC DID NOT ERR IN ITS TREATMENT OF THE THREE INDIVIDUAL
CARRIERS WHICH ASSERTED THAT THE DIVISIONS PRESCRIBED WOULD HAVE AN
UNFAIR AND UNDULY HARSH IMPACT ON THEM.  PP. 361-367. 

(A)  NO CARRIER HAS A VESTED RIGHT TO DIVISIONS IT MAY HAVE
NEGOTIATED, AND THE MERE FACT THAT THE NEW DIVISIONS MAY CAUSE A NET
REDUCTION IN REVENUES DOES NOT ESTABLISH THEIR INVALIDITY, ESPECIALLY
SINCE IT HAS NOT BEEN SHOWN THAT THE NEW DIVISIONS DO NOT FAIRLY
REFLECT COMPLAINANTS' COST OF SERVICE.  PP. 362-363. 

(B)  AT THE TIME OF THE ICC'S ORDERS, THE IMPACT OF THE NEW DIVISIONS
ON DENVER & RIO GRANDE WAS UNCERTAIN AND THE VOLUNTARY NEGOTIATION OF
SUBDIVISIONS WAS AVAILABLE; ACCORDINGLY THE ICC WAS JUSTIFIED IN
REFUSING PLENARY CONSIDERATION OF THE CARRIER'S CLAIMS AT THAT TIME. 
IF THE ROAD'S ABILITY TO PROVIDE SERVICE IS JEOPARDIZED IT MAY APPLY TO
THE ICC FOR RELIEF.  PP. 363-367. 

CHICAGO & NORTH WESTERN RAILWAY CO. ET AL. V. ATCHISON, TOPEKA & SANTA
FE RAILWAY CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS IS A CONTROVERSY BETWEEN THE MOUNTAIN-PACIFIC RAILROADS AND
CERTAIN MIDWESTERN RAILROADS, INVOLVING THE PROPER DIVISION BETWEEN
THEM OF JOINT RATES FROM THROUGH FREIGHT SERVICE IN WHICH THEY BOTH
PARTICIPATE.  DISSATISFIED WITH THEIR SHARE OF EXISTING DIVISIONS, THE
MIDWESTERN CARRIERS CALLED UPON THE INTERSTATE COMMERCE COMMISSION'S
STATUTORY AUTHORITY TO DETERMINE THAT JOINT RATE DIVISIONS "ARE OR WILL
BE UNJUST, UNREASONABLE, INEQUITABLE, OR UNDULY PREFERENTIAL," AND TO
PRESCRIBE "JUST, REASONABLE, AND EQUITABLE DIVISIONS" IN THEIR PLACE. 
(FN1)  THE COMMISSION FOUND THAT THE EXISTING DIVISIONS WERE UNLAWFUL,
AND ESTABLISHED NEW DIVISIONS WHICH, ON THE AVERAGE, GAVE THE
MIDWESTERN CARRIERS A GREATER SHARE OF THE JOINT RATES.  (FN2)  THE
DISTRICT COURT SET ASIDE THE COMMISSION'S ORDER ON THE GROUND THAT
CERTAIN OF ITS FINDINGS WERE DEFICIENT.  (FN3)  WE NOTED PROBABLE
JURISDICTION, 383 U.S. 964, TO CONSIDER IMPORTANT QUESTIONS REGARDING
THE COMMISSION'S POWERS AND PROCEDURES RAISED BY THE DISTRICT COURT'S
DECISION. 

          I. 

THERE WERE ORIGINALLY THREE GROUPS OF RAILROADS INVOLVED IN THE
PROCEEDINGS BEFORE THE COMMISSION:  THE EASTERN, MIDWESTERN, AND
MOUNTAIN-PACIFIC CARRIERS.  THE EASTERN RAILROADS OPERATE IN THE
NORTHEASTERN AREA OF THE UNITED STATES EXTENDING SOUTH TO THE OHIO
RIVER AND PARTS OF VIRGINIA AND WEST TO CENTRAL ILLINOIS.  MIDWESTERN
TERRITORY LIES BETWEEN EASTERN TERRITORY AND THE ROCKY MOUNTAINS, AND
THE REST OF THE UNITED STATES TO THE WEST CONSTITUTES MOUNTAIN-PACIFIC
TERRITORY.  THE LATTER IS SUBDIVIDED INTO TRANSCONTINENTAL TERRITORY -
COMPRISING THE STATES BORDERING THE PACIFIC, NEVADA, ARIZONA, AND PARTS
OF IDAHO, UTAH, AND NEW MEXICO - AND INTERMOUNTAIN TERRITORY.  THE
RAILROADS OPERATING IN SOUTHERN TERRITORY, WHICH INCLUDES THE
SOUTHEASTERN UNITED STATES, WERE NOT INVOLVED IN THE PROCEEDINGS BEFORE
THE COMMISSION.  (FN4) 

RAILROADS CUSTOMARILY ESTABLISH JOINT THROUGH RATES FOR
INTERTERRITORIAL FREIGHT SERVICE, AND THE DIVISIONS OF THESE RATES,
FIXED BY THE COMMISSION OR BY AGREEMENT, DETERMINE WHAT SHARE OF THE
JOINT TARIFFS EACH OF THE SEVERAL PARTICIPATING CARRIERS RECEIVES.  SEE
ST. LOUIS S.W.R. CO. V. UNITED STATES, 245 U.S. 136, 139-140, N. 2.  IN
1954 THE EASTERN CARRIERS FILED A COMPLAINT WITH THE COMMISSION SEEKING
A GREATER SHARE OF THE JOINT TARIFF ON FREIGHT TRAFFIC EAST AND WEST
BETWEEN EASTERN TERRITORY AND TRANSCONTINENTAL TERRITORY.  SHORTLY
THEREAFTER, THE MIDWESTERN CARRIERS ALSO FILED A COMPLAINT, REQUESTING
HIGHER DIVISIONS ON (1) THEIR INTERMEDIATE SERVICE ON EASTERN
TRANSCONTINENTAL TRAFFIC, (2) THEIR SERVICE ON FREIGHT TRAFFIC EAST AND
WEST BETWEEN MIDWESTERN TERRITORY AND TRANSCONTINENTAL TERRITORY.  SOME
OF THE MIDWESTERN LINES HAD LONG BELIEVED THAT THE MOUNTAIN-PACIFIC
CARRIERS ENJOYED AN UNDULY HIGH SHARE OF THE JOINT TARIFFS FOR THESE
CATEGORIES OF TRAFFIC.  WHEN JOINT RATES FOR TRAFFIC TO THE WESTERN
UNITED STATES WERE FIRST ESTABLISHED IN THE 1870'S, RATES WERE DIVIDED
ON THE BASIS OF THE MILES OF CARRIAGE RENDERED BY THE PARTICIPATING
RAILROADS, BUT THE MOUNTAIN-PACIFIC CARRIERS ENJOYED A 50% INFLATION IN
THEIR MILEAGE FACTOR.  (FN5)  IN 1925, AFTER THE COMMISSION HAD BEGUN,
BUT NOT YET COMPLETED, AN INVESTIGATION OF THE EXISTING DIVISIONS, THE
MOUNTAIN-PACIFIC CARRIERS AGREED TO MODEST INCREASES IN THE MIDWESTERN
RAILROADS' SHARE OF JOINT RATES.  THE DIVISIONS BETWEEN MOUNTAIN
PACIFIC AND MIDWESTERN CARRIERS HAVE REMAINED UNCHANGED SINCE THAT
TIME.  (FN6) 

IN THE PROCEEDINGS BEFORE THE COMMISSION, WHICH CONSOLIDATED THE
EASTERN AND THE MIDWESTERN COMPLAINTS, THE MOUNTAIN-PACIFIC RAILROADS
NOT ONLY DEFENDED THE EXISTING DIVISIONS, BUT SOUGHT A 10% INCREASE IN
THEIR SHARE.  REGULATORY COMMISSIONS OF STATES IN MOUNTAIN-PACIFIC
TERRITORY INTERVENED.  THE CONSOLIDATED PROCEEDINGS INVOLVED RATE
DIVISIONS AFFECTING ABOUT 300 RAILROADS, WHICH VOLUNTARILY ALIGNED
THEMSELVES INTO THREE GROUPS - EASTERN, MIDWESTERN, AND MOUNTAIN
PACIFIC - AND SUBMITTED EVIDENCE AND TRIED THE CASE ON THIS GROUP
BASIS.  A GREAT DEAL OF TIME WAS CONSUMED IN COMPILING AND INTRODUCING
MASSIVE AMOUNTS OF EVIDENCE - MORE THAN 800 EXHIBITS AND OVER 11,200
PAGES OF TESTIMONY.  THE HEARING EXAMINERS MADE A RECOMMENDED REPORT IN
1960.  AFTER CONSIDERING WRITTEN BRIEFS AND ORAL ARGUMENTS FROM THE
VARIOUS GROUPS OF PARTIES, THE COMMISSION ISSUED ITS ORIGINAL REPORT IN
MARCH OF 1963.  THE COMMISSION FOUND THE EXISTING DIVISIONS TO BE
UNLAWFUL, AND PRESCRIBED INCREASED DIVISIONS FOR THE MIDWESTERN AND
EASTERN CARRIERS, EFFECTIVE JULY 1, 1963. 

WHEN EXERCISING ITS STATUTORY AUTHORITY TO ESTABLISH "JUST AND
REASONABLE" DIVISIONS UNDER SEC. 15(6) OF THE INTERSTATE COMMERCE ACT,
THE COMMISSION IS REQUIRED TO: 

"GIVE DUE CONSIDERATION, AMONG OTHER THINGS, TO THE EFFICIENCY WITH
WHICH THE CARRIERS CONCERNED ARE OPERATED, THE AMOUNT OF REVENUE
REQUIRED TO PAY THEIR RESPECTIVE OPERATING EXPENSES, TAXES, AND A FAIR
RETURN ON THEIR RAILWAY PROPERTY HELD FOR AND USED IN THE SERVICE OF
TRANSPORTATION, AND THE IMPORTANCE TO THE PUBLIC OF THE TRANSPORTATION
SERVICES OF SUCH CARRIERS; AND ALSO WHETHER ANY PARTICULAR
PARTICIPATING CARRIER IS AN ORIGINATING, INTERMEDIATE, OR DELIVERING
LINE, AND ANY OTHER FACT OR CIRCUMSTANCE WHICH WOULD ORDINARILY,
WITHOUT REGARD TO THE MILEAGE HAUL, ENTITLE ONE CARRIER TO A GREATER OR
LESS PROPORTION THAN ANOTHER CARRIER OF THE JOINT RATE, FARE OR
CHARGE."  (FN7) 

AFTER REVIEWING THE NATURE OF THE TRAFFIC INVOLVED AND CONSIDERING
THE SPECIAL CLAIMS OF THE VARIOUS GROUPS, THE COMMISSION FOUND THAT
"NONE OF THE CONTENDING GROUPS IS MORE OR LESS EFFICIENTLY OPERATED
THAN ANOTHER," AND THAT "THERE ARE NO DIFFERENCES IN THE IMPORTANCE TO
THE PUBLIC ATTRIBUTABLE TO THE THREE CONTENDING GROUPS OF CARRIERS." 
ITS DECISION THUS TURNED ON MORE DIRECT FINANCIAL CONSIDERATIONS, TO
WHICH THE COMMISSION DEVOTED A SUBSTANTIAL PART OF ITS LENGTHY REPORT. 
UNDER COMMISSION PRACTICE, THESE FINANCIAL CONSIDERATIONS ARE DIVIDED
INTO "COST OF SERVICE" AND "REVENUE NEEDS."  THE FORMER CONSISTS OF THE
OUT-OF-POCKET EXPENSES DIRECTLY ASSOCIATED WITH A PARTICULAR SERVICE,
INCLUDING OPERATING COSTS, TAXES, AND A FOUR PERCENT RETURN ON THE
PROPERTY INVOLVED.  "REVENUE NEEDS" REFERS TO BROADER REQUIREMENTS FOR
FUNDS IN EXCESS OF OUT-OF-POCKET EXPENSES, INCLUDING FUNDS FOR NEW
INVESTMENT. 

IN DETERMINING COST OF SERVICE, THE COMMISSION RELIED UPON A COST
STUDY PREPARED BY THE MOUNTAIN-PACIFIC RAILROADS, BUT INTRODUCED
CERTAIN MODIFICATIONS THAT PRODUCED DIFFERENT RESULTS.  THE COMMISSION
FOUND THAT EXISTING DIVISIONS ON EASTERN-TRANSCONTINENTAL TRAFFIC GAVE
THE MOUNTAIN-PACIFIC CARRIERS REVENUES THAT EXCEEDED THEIR COSTS BY
57%, WHILE THE MIDWESTERN AND EASTERN RAILROADS RECEIVED ONLY 43% AND
22% MORE, RESPECTIVELY, THAN THEIR COSTS FOR THE SERVICE THEY
CONTRIBUTED.  ON MIDWESTERN-TRANSCONTINENTAL TRAFFIC, THE COMMISSION
FOUND THAT THE DIVISIONS GAVE THE MOUNTAIN-PACIFIC CARRIERS REVENUES
71% ABOVE COST, WHILE THE MIDWESTERN LINES RECEIVED ONLY 39% ABOVE
COST; ON THIS TRAFFIC THE MIDWESTERN RAILROADS BORE 31.5% OF THE TOTAL
COST BUT RECEIVED ONLY 27.1% OF THE TOTAL REVENUE. 

IN ASSESSING COMPARATIVE REVENUE NEEDS, THE COMMISSION FOUND THAT THE
AVERAGE RATE OF RETURN FOR 1946-1958, BASED ON NET RAILWAY OPERATING
INCOME FROM ALL SERVICES AS A PERCENTAGE OF THE VALUE OF INVESTED
PROPERTY, (FN8) WAS 3.40% FOR THE EASTERN ROADS, 3.49% FOR THE
MIDWESTERN GROUP, AND 4.64% FOR THE MOUNTAIN-PACIFIC CARRIERS.  THE
COMMISSION ALSO FOUND THAT THE MOUNTAIN-PACIFIC RAILROADS HAD THE MOST
FAVORABLE RECORD AND TREND IN BOTH FREIGHT VOLUME AND FREIGHT REVENUES,
AND THE EASTERN RAILROADS THE LEAST FAVORABLE, WITH THE MIDWESTERN
ROADS OCCUPYING AN INTERMEDIATE POSITION.  IN RESPONSE TO THE MOUNTAIN
PACIFIC CARRIERS' COMPLAINT THAT THEIR NET OPERATING INCOME FROM ALL
SERVICES HAD NOT INCREASED AS FAST AS NET INVESTMENT IN RECENT YEARS,
THE COMMISSION NOTED THAT THIS WAS PRIMARILY DUE TO DISPROPORTIONATE
PASSENGER DEFICITS THAT OFFSET FAVORABLE INCOME FROM FREIGHT SERVICES. 
THE COMMISSION ALSO DISCOUNTED THE CONTENTION THAT THE MOUNTAIN-PACIFIC
CARRIERS WERE ENTITLED TO GREATER REVENUES TO PROVIDE FUNDS FOR NEW
INVESTMENT, FINDING THAT THE NEEDS OF THE VARIOUS CARRIER GROUPS FOR
SUCH FUNDS WERE NOT APPRECIABLY DIFFERENT.  THE CLAIM OF THE MIDWESTERN
CARRIERS THAT THEY HAD THE MOST PRESSING NEED FOR REVENUES WAS ALSO
REJECTED BY THE COMMISSION. 

FROM ALL THIS EVIDENCE, THE COMMISSION CONCLUDED "THAT THERE SHOULD
BE INCREASES IN THE EASTERN CARRIERS' DIVISIONS REFLECTING REVENUE NEED
AS WELL AS COST."  WHILE THE VERY POOR FINANCIAL POSITION AND HIGH
REVENUE NEEDS OF THE EASTERN CARRIERS WERE THUS IMPORTANT ELEMENTS IN
PRESCRIBING INCREASES IN THEIR DIVISIONS, THE COMMISSION WENT ON TO
FIND COST CONSIDERATIONS THE CONTROLLING FACTOR WITH REGARD TO THE
MIDWESTERN DIVISIONS:  "AS BETWEEN THE MOUNTAIN-PACIFIC RAILROADS AND
THE MIDWESTERN RAILROADS THE DIFFERENCES IN EARNING POWER ARE LESS
MARKED, BUT OUR CONSIDERATION OF THE EVIDENCE BEARING ON COST OF
SERVICE PREVIOUSLY DISCUSSED CONVINCES US THAT THE PRIMARY MIDWESTERN
DIVISIONS AS A WHOLE ARE TOO LOW." 

IN ESTABLISHING HIGHER DIVISIONS FOR THE EASTERN CARRIERS, THE
COMMISSION RELIED UPON THE EXISTING PERCENTAGES GOVERNING DIVISIONS OF
THE VARIOUS RATES BETWEEN WELL-DEFINED SUBAREAS IN EASTERN TERRITORY
AND POINTS IN TRANSCONTINENTAL TERRITORY.  THE COMMISSION SIMPLY
INCREASED THE PERCENTAGES THAT THE EASTERN CARRIERS FORMERLY RECEIVED
ON THIS TRAFFIC.  (FN9)  HOWEVER, THE COMMISSION CONCLUDED THAT IT
COULD NOTFOLLOW THIS PROCEDURE WITH RESPECT TO MIDWESTERN DIVISIONS ON
EASTERN-TRANSCONTINENTAL AND MIDWESTERN-TRANSCONTINENTAL TRAFFIC.  IT
FOUND THAT MIDWESTERN-TRANSCONTINENTAL SUBGROUPINGS WERE NOT WELL
DEFINED AND WERE IN SOME CASES NOT PROPERLY RELATED TO DISTANCE.  THUS
IT WAS NOT FEASIBLE TO ASSEMBLE RATES FROM VARIOUS MIDWESTERN POINTS TO
TRANSCONTINENTAL POINTS INTO COMMON GROUPS AND APPLY FIXED PERCENTAGE
DIVISIONS TO EACH GROUP IN ORDER TO DETERMINE THE RESPECTIVE SHARES OF
THE MIDWESTERN AND MOUNTAIN-PACIFIC CARRIERS.  INSTEAD, THE COMMISSION
RESORTED TO A WEIGHTED MILEAGE BASIS OF APPORTIONMENT, DETERMINED
THROUGH THE USE OF DIVISIONAL SCALES.  THE COMMISSION HAS FREQUENTLY
USED SUCH SCALES IN THE PAST, AND THEIR USE IN THIS CASE WAS SUGGESTED
BY BOTH THE MIDWESTERN AND MOUNTAIN-PACIFIC CARRIERS.  UNDER THE SYSTEM
ADOPTED, THE MILEAGE CONTRIBUTED BY EACH CARRIER TO THE JOINT SERVICE
IS BROKEN DOWN INTO 50-MILE BLOCKS.  THE SCALE CHOSEN ASSIGNS EACH
BLOCK A NUMBER.  A LARGE NUMBER IS ASSIGNED THE FIRST BLOCK, AND A
SMALLER NUMBER TO SUCCESSIVE 50-MILE INCREMENTS; THIS IS DESIGNED TO
REFLECT TERMINAL AND STANDBY COSTS INCURRED REGARDLESS OF THE LENGTH OF
CARRIAGE CONTRIBUTED.  EACH CARRIER THEN RECEIVES A SHARE OF THE JOINT
REVENUE IN PROPORTION TO THE SUM OF SCALE NUMBERS CORRESPONDING TO ITS
MILEAGE CONTRIBUTION.  TO DETERMINE THE DIVISIONS BETWEEN THE
MIDWESTERN AND MOUNTAIN-PACIFIC CARRIERS, THE COMMISSION USED A 29886
SCALE - SO NAMED BECAUSE IT WAS DEVELOPED IN ANOTHER INTERTERRITORIAL
DIVISIONS CASE BEARING THAT DOCKET NUMBER.  (FN10)  THIS SCALE ASSIGNS
A FACTOR OF 65 TO THE FIRST 50-MILE BLOCK OF CARRIAGE AND A FACTOR OF
12 TO EACH SUCCESSIVE 50-MILE INCREMENT.  (FN11)  THE COMMISSION
DECIDED THAT THE MIDWESTERN CARRIERS' SHARES WOULD BE DETERMINED BY AN
UNADJUSTED 29886 SCALE, BUT THAT THE MOUNTAIN-PACIFIC CARRIERS' SHARES
SHOULD BE BASED ON THE SAME SCALE WITH THE MILEAGE FACTORS INFLATED BY
10% TO REFLECT CERTAIN GREATER COSTS OF CARRIAGE IN THE MOUNTAINOUS
WEST.  THUS, FOR THEIR CARRIAGE, THE MOUNTAIN-PACIFIC CARRIERS WOULD
ENJOY A FACTOR OF 72 FOR THE FIRST 50-MILE BLOCK, AND A FACTOR OF 13
FOR SUCCESSIVE 50-MILE INCREMENTS.  (FN12)  FOR ANY JOINT CARRIAGE, THE
MIDWESTERN AND MOUNTAIN-PACIFIC CARRIERS WOULD TRANSLATE THEIR MILEAGE
CONTRIBUTIONS INTO SCALE NUMBERS, AND DIVIDE THE PROCEEDS IN PROPORTION
TO THE NUMBERS SO OBTAINED.  (FN13)  THE DIVISIONS THUS ESSENTIALLY
REFLECT A MILEAGE BASIS, WITH DISPROPORTIONATE WEIGHT ASSIGNED THE
FIRST 50 MILES OF CARRIAGE AND AN OVERALL INFLATION FACTOR FAVORING THE
MOUNTAIN-PACIFIC CARRIERS.  THE COMMISSION FOUND THAT THE NET EFFECT OF
ITS REVISED SCALE WOULD BE TO "PRODUCE MODERATE INCREASES IN SOME OF
THE MOST IMPORTANT MIDWESTERN DIVISIONS." 

AFTER ENTERTAINING PETITIONS FOR RECONSIDERATION, THE COMMISSION
ADOPTED A SUPPLEMENTAL REPORT IN LATE 1963.  FOR THE FIRST TIME, A FEW
CARRIERS ABANDONED THE THREE-GROUP BASIS ON WHICH ALL THE PRIOR
PROCEEDINGS HAD BEEN CONDUCTED.  REQUESTS FOR SPECIAL TREATMENT WERE
MADE ON BEHALF OF ONE MOUNTAIN-PACIFIC ROAD, THE DENVER & RIO GRANDE,
AND TWO MIDWESTERN CARRIERS, THE MISSOURI-KANSAS-TEXAS (KATY) AND THE
ST. LOUIS-SAN FRANCISCO (FRISCO), ON THE GROUND THAT THE DIVISIONS
PRESCRIBED BY THE COMMISSION HAD AN UNDULY HARSH EFFECT ON THEM. 
(FN14)  THE COMMISSION CONSIDERED AND LARGELY REJECTED THESE AND OTHER
CRITICISMS OF ITS ORIGINAL DECISION, AND ISSUED A SUPPLEMENTAL ORDER
SUBSTANTIALLY REAFFIRMING ITS ORIGINAL ORDER AFTER MAKING MINOR
TECHNICAL MODIFICATIONS.    ELEVEN OF THE MOUNTAIN-PACIFIC CARRIERS
BROUGHT AN ACTION IN THE DISTRICT COURT TO ENJOIN AND SET ASIDE THE
COMMISSION'S ORDERS AND SUCCEEDED IN OBTAINING PRELIMINARY
INJUNCTIONS.  OTHER MOUNTAIN-PACIFIC CARRIERS, THE WESTERN STATE
REGULATORY COMMISSIONS, AND THE KATY AND THE FRISCO INTERVENED AS
PLAINTIFFS, WHILE THE EASTERN CARRIERS AND A GROUP OF MIDWESTERN
RAILROADS INTERVENED ON THE SIDE OF THE GOVERNMENT AND THE COMMISSION
AS DEFENDANTS.  IN JANUARY 1965 THE DISTRICT COURT HANDED DOWN THE
DECISION SETTING ASIDE THE COMMISSION'S ORDERS.  THE COURT HELD THAT
THE FINDINGS MADE BY THE COMMISSION WITH REGARD TO THE REVENUE NEED,
COST OF SERVICE, PUBLIC IMPORTANCE, ETC., OF THE EASTERN, MIDWESTERN,
AND MOUNTAIN-PACIFIC CARRIERS WERE INSUFFICIENT BECAUSE THEY WERE MADE
ON A GROUP BASIS.  IN THE VIEW OF THE DISTRICT COURT, THE INTERSTATE
COMMERCE ACT REQUIRED THE COMMISSION TO MAKE SUCH FINDINGS WITH RESPECT
TO EACH OF THE 300 RAILROADS INVOLVED, ON AN INDIVIDUAL BASIS.  THE
DISTRICT COURT FURTHER HELD THAT IN A DIVISIONS CASE THE COMMISSION IS
OBLIGED TO DETERMINE, IN PRECISE DOLLAR AMOUNT, THE REVENUE NEEDS OF
EACH INDIVIDUAL RAILROAD, AND ALSO THE REVENUE EFFECT ON EACH
INDIVIDUAL RAILROAD, AGAIN IN PRECISE DOLLAR AMOUNT, OF THE NEW
DIVISIONS THAT THE COMMISSION ESTABLISHES.  THE DISTRICT COURT IN
CONCLUSION STATED:  (FN15) 

"THAT TO COMPLY WITH  ...  THE INTERSTATE COMMERCE AND THE
ADMINISTRATIVE PROCEDURE ACTS  ...  THE COMMISSION IS REQUIRED TO MAKE
AFFIRMATIVE FINDINGS WHICH DISCLOSE THAT THE REQUIREMENTS OF SECTION
15(6) HAVE BEEN MET AND THE FACTORS THEREIN REQUIRED HAVE BEEN
DETERMINED AND CONSIDERED, NOT ONLY AS TO THE GROUPS OF ROADS INVOLVED
BUT WITH RESPECT TO EACH CARRIER AFFECTED IN SAID GROUPS; THAT FINDINGS
MUST BE MADE AS TO THE AMOUNT OF REVENUE, IN TERMS OF DOLLARS, REQUIRED
BY THE RESPECTIVE CARRIERS AFFECTED IN ANY NEW DIVISIONS PRESCRIBED,
THE FINANCIAL EFFECT OF THE COMMISSION'S ORDERS IN TERMS OF DOLLARS AS
TO THE CARRIERS AND THE EXTENT TO WHICH THE NEW DIVISIONS PRESCRIBED
WILL PRODUCE THE REVENUE FOUND TO BE REQUIRED  ...  ." 

THE EASTERN CARRIERS, THE MIDWESTERN DEFENDANTS, AND THE GOVERNMENT
AND THE COMMISSION ALL APPEALED THE DECISION OF THE DISTRICT COURT. 
THEREAFTER, ALL OF THE EASTERN AND SOME OF THE MIDWESTERN CARRIERS
(FN16) REACHED SETTLEMENT AGREEMENTS WITH THE MOUNTAIN-PACIFIC CARRIERS
COVERING THE RATE DIVISIONS AFFECTING THEM.  WE ACCORDINGLY VACATED THE
JUDGMENT OF THE DISTRICT COURT WITH RESPECT TO THE DIVISIONS OF THE
EASTERN AND THE SETTLING MIDWESTERN RAILROADS, AND REMANDED THE
RELEVANT PORTIONS OF THE APPEALS TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS AS MOOT.  383 U.S. 832, 384 U.S. 888.  THUS,
THE PRINCIPAL DISPUTE REMAINING CONCERNS THE DIVISIONS BETWEEN THE
MOUNTAIN-PACIFIC CARRIERS AND THE EIGHT PRINCIPAL MIDWESTERN ROADS THAT
ARE APPELLANTS IN NO. 8.  (FN17)

                           II. 

NONE OF THE APPELLEES NOW DEFENDS THE POSITION, ESPOUSED BY THE
DISTRICT COURT, THAT THE COMMISSION WAS REQUIRED TO MAKE SEPARATE
INDIVIDUAL FINDINGS FOR EACH OF THE 300 RAILROADS INVOLVED IN THE
PROCEEDINGS BEFORE IT.  BUT THE ERROR IN THAT POSITION, WHICH REJECTS
OVER 40 YEARS OF CONSISTENT ADMINISTRATIVE PRACTICE, REQUIRES COMMENT. 

IN ITS FIRST DECISION INVOLVING RATE DIVISIONS UNDER SEC. 15(6), THE
NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, THE COURT UPHELD THE
AUTHORITY OF THE COMMISSION TO TAKE EVIDENCE AND MAKE FINDINGS ON A
GROUP BASIS.  SPEAKING FOR A UNANIMOUS COURT, MR. JUSTICE BRANDEIS
NOTED THAT THE "ACTUAL NECESSITIES OF PROCEDURE AND ADMINISTRATION"
REQUIRED PROCEDURES ON A GROUP BASIS IN RATEMAKING CASES, AND THAT A
SIMILAR PRACTICE WAS APPROPRIATE IN DIVISIONS CASES.  THE COMPLEXITY OF
THE SUBJECT MATTER AND THE MULTIPLICITY OF CARRIERS TYPICALLY INVOLVED
IN DIVISIONS CASES WERE SUCH THAT A WOODEN REQUIREMENT OF INDIVIDUAL
FINDINGS WOULD MAKE EFFECTIVE REGULATION ALL BUT IMPOSSIBLE.  THE COURT
HELD THAT THE INTERSTATE COMMERCE ACT PERMITS THE COMMISSION TO PROCEED
ON A GROUP BASIS AND TO RELY ON "EVIDENCE WHICH THE COMMISSION ASSUMED
WAS TYPICAL IN CHARACTER, AND AMPLE IN QUANTITY" TO JUSTIFY ITS
FINDINGS, REASONING THAT: 

"OBVIOUSLY, CONGRESS INTENDED THAT A METHOD SHOULD BE PURSUED BY
WHICH THE TASK, WHICH IT IMPOSED UPON THE COMMISSION, COULD BE
PERFORMED  ...  .  TO REQUIRE SPECIFIC EVIDENCE, AND SEPARATE
ADJUDICATION, IN RESPECT TO EACH DIVISION OF EACH RATE OF EACH CARRIER,
WOULD BE TANTAMOUNT TO DENYING THE POSSIBILITY OF GRANTING RELIEF.  WE
MUST ASSUME THAT CONGRESS KNEW THIS  ...  ."  261 U.S., AT 196-197. 

BOTH THE COURT (FN18) AND THE COMMISSION (FN19) HAVE CONSISTENTLY
ADHERED TO THIS CONSTRUCTION OF THE ACT'S REQUIREMENTS, AND ITS
REJECTION BY THE DISTRICT COURT IN THIS CASE WAS ERROR.  (FN20) 

THE PRAGMATIC JUSTIFICATIONS FOR THE COMMISSION'S GROUP PROCEDURES
ARE OBVIOUS.  EVEN ON A GROUP BASIS, THE COMMISSION PROCEEDINGS IN THIS
CASE REQUIRED A VOLUMINOUS RECORD AND WERE NOT COMPLETED UNTIL NEARLY
10 YEARS AFTER THE COMPLAINTS WERE FILED.  TO DEMAND INDIVIDUAL
EVIDENCE AND FINDINGS FOR EACH OF THE 300 CARRIERS IN THE COMMISSION
PROCEEDINGS WOULD SO INFLATE THE RECORD AND PROLONG ADMINISTRATIVE
ADJUDICATION THAT THE COMMISSION'S REGULATORY AUTHORITY WOULD BE
PARALYZED. 

NOR DO CONSIDERATIONS OF FAIRNESS REQUIRE DISREGARD OF ADMINISTRATIVE
NECESSITIES.  THE PREMISE OF GROUP PROCEEDINGS, AS THE NEW ENGLAND
DIVISIONS CASE EXPLICITLY RECOGNIZED, IS THAT EVIDENCE PERTAINING TO A
GROUP IS TYPICAL OF ITS INDIVIDUAL MEMBERS.  261 U.S., AT 196-199.  SEE
ALSO BEAUMONT, S.L.&W.R. CO. V. UNITED STATES, 282 U.S. 74, 82-83.  IT
HAS ALWAYS BEEN ACCEPTED THAT AN INDIVIDUAL CARRIER MAY CHALLENGE THIS
PREMISE AND, ON PROPER SHOWING, RECEIVE INDEPENDENT CONSIDERATION IF
ITS INDIVIDUAL SITUATION IS SO ATYPICAL THAT ITS INCLUSION IN GROUP
CONSIDERATION WOULD BE INAPPROPRIATE.  IT IS THE COMMISSION'S PRACTICE
TO ACCORD INDEPENDENT TREATMENT TO AN INDIVIDUAL CARRIER WHEN A PROPER
REQUEST FOR SPECIAL CONSIDERATION IS MADE.  (FN21)  BUT NO SUCH
REQUESTS WERE MADE DURING THE HEARINGS AND PRESENTATION OF EVIDENCE IN
THIS CASE.  INSTEAD, THE INDIVIDUAL CARRIERS VOLUNTARILY ALIGNED
THEMSELVES INTO GROUPS, PRESENTED EVIDENCE AND TRIED THE CASE ON A
GROUP BASIS, AND ASKED THE COMMISSION TO PRESCRIBE NEW DIVISIONS ON A
GROUP BASIS.  IN THIS SITUATION, THE COMMISSION WAS NOT OBLIGED ON ITS
OWN MOTION TO DEMAND EVIDENCE AND MAKE FINDINGS ON AN INDIVIDUAL
BASIS.  DEPARTURE FROM THE PRACTICALITIES OF GROUP PROCEDURE IS
JUSTIFIED ONLY WHEN THERE IS A REAL NEED FOR SEPARATE TREATMENT OF A
GIVEN CARRIER; THE INDIVIDUAL CARRIERS THEMSELVES, WHICH HAVE THE
CLOSEST UNDERSTANDING OF THEIR OWN SITUATION AND INTERESTS, ARE
NORMALLY THE APPROPRIATE PARTIES TO SHOW THAT SUCH NEED EXISTS. 

THE DENVER & RIO GRANDE, THE KATY, AND THE FRISCO DID REQUEST
INDEPENDENT CONSIDERATION IN PETITIONS FOR RECONSIDERATION OF THE
COMMISSION'S ORIGINAL DECISION.  THEIR CLAIMS WILL BE DISCUSSED BELOW
IN PART VI OF THIS OPINION, BUT IT SHOULD BE NOTED THAT AT NO POINT
DURING THE ADMINISTRATIVE HEARINGS OR THE PRESENTATION OF EVIDENCE DID
THEY RAISE ANY CLAIM FOR SEPARATE TREATMENT.  MOREOVER, THEIR
CONTENTION BASICALLY IS NOT THAT THE GROUP EVIDENCE OR FINDINGS WERE
UNREPRESENTATIVE, BUT RATHER THAT THE DIVISIONS PRESCRIBED BY THE
COMMISSION HAVE AN UNDULY HARSH IMPACT ON THEM.  EVEN IF IT WERE
ASSUMED THAT THE COMMISSION'S DISPOSITION OF THIS CONTENTION WAS
ERRONEOUS, THAT WOULD BE NO GROUND FOR REQUIRING THE COMMISSION TO MAKE
INDIVIDUAL FINDINGS FOR THE REST OF THE 300 CARRIERS INVOLVED. 

                      III. 

AMONG THE ERRORS THAT THE DISTRICT COURT FOUND IN THE COMMISSION'S
DECISION WAS ITS FAILURE TO STATE THE REVENUE NEEDS OF EACH INDIVIDUAL
CARRIER IN TERMS OF PRECISE DOLLAR AMOUNT.  WHILE NOT DEFENDING THE
REQUIREMENT OF INDIVIDUAL FINDINGS, THE APPELLEES DO CONTEND THAT THE
COMMISSION WAS REQUIRED TO DETERMINE THE REVENUE NEEDS OF THE VARIOUS
CARRIER GROUPS IN PRECISE DOLLAR AMOUNT, AND THEY ALSO URGE OTHER
ERRORS IN THE COMMISSION'S TREATMENT OF REVENUE NEEDS.  WE BELIEVE,
HOWEVER, THAT IN THE CASE'S PRESENT POSTURE THESE CRITICISMS ARE
LARGELY MISDIRECTED. 

IN INCREASING THE SHARES OF THE EASTERN RAILROADS THE COMMISSION DID
RELY ON REVENUE NEEDS AS WELL AS COSTS, BUT IT FOUND COSTS ALONE THE
CONTROLLING FACTOR IN RAISING THE DIVISIONS OF THE MIDWESTERN
CARRIERS.  IN THE CONCLUSIONS IN ITS ORIGINAL REPORT, THE COMMISSION
STATED THAT THERE SHOULD BE INCREASES IN THE EASTERN DIVISIONS
"REFLECTING REVENUE NEED AS WELL AS COST," BUT IN THE VERY NEXT
SENTENCE IT WENT ON TO SAY THAT AS BETWEEN THE MIDWESTERN AND MOUNTAIN
PACIFIC ROADS, "DIFFERENCES IN EARNING POWER ARE LESS MARKED, BUT OUR
CONSIDERATION OF THE EVIDENCE BEARING ON COST OF SERVICE PREVIOUSLY
DISCUSSED CONVINCES US THAT THE PRIMARY MIDWESTERN DIVISIONS AS A WHOLE
ARE TOO LOW."  ITS RELIANCE ON COSTS ALONE IN INCREASING THE MIDWESTERN
SHARES IS CONFIRMED BY THE COMMISSION'S SUPPLEMENTAL REPORT, IN WHICH
IT AGAIN REJECTED A REQUEST OF THE MIDWESTERN CARRIERS FOR EVEN HIGHER
DIVISIONS BASED ON THEIR CLAIM OF PRESSING REVENUE NEEDS:  "IT WAS OUR
STATED VIEW THAT INCREASES IN THE MIDWESTERN DIVISIONS WERE SUPPORTED
BY THE EVIDENCE CONCERNING COST OF SERVICE, BUT THAT THE PROPOSAL OF
THE MIDWESTERN LINES GAVE UNDUE WEIGHT TO THEIR CLAIMED REVENUE NEED." 
(FN22)  SINCE REVENUE NEEDS WERE IMPORTANT FACTORS ONLY WITH REGARD TO
THE EASTERN DIVISIONS, AND THOSE DIVISIONS ARE NO LONGER IN ISSUE
BECAUSE THE EASTERN ROADS HAVE SETTLED WITH THE MOUNTAIN-PACIFIC
CARRIERS, ANY ERRORS COMMITTED BY THE COMMISSION IN ITS TREATMENT OF
REVENUE NEEDS ARE NO LONGER RELEVANT.  (FN23)  BUT EVEN ASSUMING THAT
THE COMMISSION DID ATTACH SOME LIMITED SIGNIFICANCE TO REVENUE NEEDS IN
RAISING THE MIDWESTERN DIVISIONS, WE CANNOT CONCLUDE THAT ITS TREATMENT
OF REVENUE NEEDS WAS LEGALLY INADEQUATE.  THE COMMISSION DEVOTED OVER
25 PAGES OF ITS REPORTS TO REVENUE NEEDS.  IT DISCUSSED AT LENGTH THE
PROPER BASIS FOR COMPUTING RATES OF RETURN AND FOUND THE RATES OF
RETURN FOR THE VARIOUS CARRIER GROUPS; IT ALSO EXAMINED THE RECORD AND
TRENDS IN NET RAILWAY OPERATING INCOME FROM ALL SERVICES, AND FROM
FREIGHT AND PASSENGER SERVICES CONSIDERED SEPARATELY. 

THE COMMISSION PLACED CONSIDERABLE EMPHASIS ON RATES OF RETURN IN ITS
DISCUSSION OF COMPARATIVE REVENUE NEEDS.  FOLLOWING ITS ESTABLISHED
PRACTICE, IT FOUND THAT A VALUE BASIS, RATHER THAN BOOK COST, AS URGED
BY THE MOUNTAIN-PACIFIC ROADS, WAS THE PROPER METHOD FOR CALCULATING
THE INVESTMENT BASE.  (FN24)  THE EVIDENCE DISCLOSED THAT THE MOUNTAIN
PACIFIC LINES HAD ENJOYED A 4.64% RETURN, AS OPPOSED TO 3.40% FOR THE
EASTERN LINES, AND 3.49% FOR THE MIDWESTERN LINES.  THE SUGGESTION THAT
THESE FINDINGS IN TERMS OF RATE OF RETURN WERE INSUFFICIENT BECAUSE
THEY DID NOT EXPRESS REVENUE NEEDS IN TERMS OF ABSOLUTE DOLLAR AMOUNT
IS TOTALLY NOVEL AND UNREASONABLE.  THIS SUGGESTION SEEMS TO STEM FROM
A MISCONCEPTION OF THE COMMISSION'S FUNCTION IN DIVISIONS CASES.  ITS
TASK IS NOT TO TRANSFER LUMP SUMS OF CASH FROM ONE CARRIER TO ANOTHER,
BUT TO "MAKE DIVISIONS THAT COLLOQUIALLY MAY BE SAID TO BE FAIR." 
B.&O.R. CO. V. UNITED STATES, 298 U.S. 349, 357.  (FN25)  THE RELATIVE
FINANCIAL STRENGTH OF THE CARRIERS INVOLVED IS A KEY FACTOR IN THIS
TASK, SEE THE NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 189-192, AND
THE USE OF COMPARATIVE RATES OF RETURN IS AN OBVIOUSLY APPROPRIATE
BASIS FOR THE EXERCISE OF ADMINISTRATIVE JUDGMENT.  RATES OF RETURN ARE
A FAMILIAR TOOL OF ANALYSIS IN THE FINANCIAL COMMUNITY.  THE COMMISSION
HAS LONG RELIED ON THIS FORM OF ANALYSIS IN DIVISIONS CASES, (FN26) AND
IN PASSING ON THE COMMISSION'S PERFORMANCE IN SUCH CASES, THIS COURT
HAS NEVER SUGGESTED THAT ULTIMATE FINDINGS OF REVENUE NEED IN TERMS OF
ABSOLUTE DOLLAR AMOUNT WERE REQUIRED.  (FN27)  APPELLEES ARE UNABLE TO
SUGGEST ANY CLEAR REGULATORY PURPOSE THAT WOULD BE SERVED BY SUCH
FINDINGS.  WE DECLINE NOW TO IMPOSE UPON THE COMMISSION A RIGID
MECHANICAL REQUIREMENT THAT IS WITHOUT FOUNDATION IN PRECEDENT,
PRACTICE, OR POLICY. 

APPELLEES, ESPECIALLY THE REGULATORY COMMISSIONS, VIGOROUSLY CONTEND
THAT RELIANCE ON RATES OF RETURN SHOWING THE MOUNTAIN-PACIFIC CARRIERS
IN A HEAVILY FAVORABLE POSITION WAS INAPPROPRIATE BECAUSE THE
COMMISSION OVERLOOKED THE MOUNTAIN-PACIFIC CARRIERS' DISPROPORTIONATE
NEED FOR FUNDS FOR NEW INVESTMENT.  IT MIGHT BE QUESTIONED WHETHER
FORCING CARRIERS IN OTHER PARTS OF THE COUNTRY TO ACCEPT DIVISIONS
LOWER THAN THOSE TO WHICH THEY WOULD OTHERWISE BE ENTITLED IS A
SENSIBLE MEANS OF RAISING FUNDS FOR NEW INVESTMENT IN THE FAR WEST. 
BUT THE COMMISSION DID NOT REACH THIS ISSUE BECAUSE IT FOUND THAT THE
MOUNTAIN-PACIFIC CARRIERS DID NOT IN FACT HAVE A GREATER NEED FOR
INVESTMENT FUNDS THAN RAILROADS ELSEWHERE: 

"WE ARE UNABLE TO AGREE WITH THE MOUNTAIN-PACIFIC CARRIERS AND THE
REGULATORY COMMISSIONS THAT THE PUBLIC INTEREST WARRANTS INCREASES IN
THE DIVISIONS OF THE MOUNTAIN-PACIFIC RAILROADS IN ORDER TO PROVIDE A
SOURCE OF INVESTMENT FUNDS REQUIRED FOR ENLARGED FACILITIES
COMMENSURATE WITH INDUSTRIAL DEVELOPMENT IN THAT REGION.  THE RAILROADS
IN ALL SECTIONS OF THE COUNTRY ARE FACED WITH THE CONTINUING NECESSITY
OF RAISING FUNDS FOR ADDITIONS AND BETTERMENTS AND NEW EQUIPMENT, AND
WE CANNOT RECOGNIZE ANY DIFFERENCE IN THE DEGREE OF THIS URGENCY AMONG
THE TERRITORIAL GROUPS." 

THE APPELLEES HAVE SOUGHT TO CONVINCE US THAT THIS FINDING IS
FACTUALLY INCORRECT, BUT WE DECLINE TO INVADE THE ADMINISTRATIVE
PROVINCE AND SECOND-GUESS THE COMMISSION ON MATTERS WITHIN ITS EXPERT
JUDGMENT.  B.&O.R. CO. V. UNITED STATES, 298 U.S. 349, 359; ALABAMA
G.S.R. CO. V. UNITED STATES, 340 U.S. 216, 227-228.   THE APPELLEES
ALSO CONTEND THAT THE COMMISSION ERRED IN ITS TREATMENT OF PASSENGER
DEFICITS.  IN DISCUSSING REVENUE NEEDS, THE COMMISSION POINTED OUT THAT
SINCE 1950-1952 THE MOUNTAIN-PACIFIC CARRIERS HAD ENJOYED SUBSTANTIAL
INCREASES IN OPERATING REVENUE FROM FREIGHT SERVICES, WHILE THE FREIGHT
REVENUE OF THE EASTERN CARRIERS HAD DECLINED.  IT ALSO NOTED THAT THE
MIDWESTERN CARRIERS' FREIGHT REVENUES HAD REMAINED RELATIVELY CONSTANT,
AND CONCLUDED THAT THESE COMPARATIVE TRENDS WERE LIKELY TO CONTINUE. 
THE MOUNTAIN-PACIFIC CARRIERS, HOWEVER, COMPLAINED THAT, DESPITE THEIR
FAVORABLE TREND IN FREIGHT REVENUES AND LARGE AMOUNTS OF NEW INVESTMENT
THAT THEY HAD RECENTLY MADE, THEIR RATE OF RETURN FROM ALL SERVICES HAD
DECLINED.  IN REPLY, THE COMMISSION OBSERVED THAT THE MOUNTAIN-PACIFIC
CARRIERS' PASSENGER DEFICITS HAD INCREASED SUBSTANTIALLY SINCE 1950
1952 AND HAD OFFSET THEIR IMPRESSIVE PERFORMANCE IN FREIGHT REVENUES. 

THE MOUNTAIN-PACIFIC ROADS NOW ARGUE THAT THE COMMISSION'S DECISION
TO INCREASE THE MIDWESTERN DIVISIONS WAS BASED ALMOST EXCLUSIVELY ON
ITS TREATMENT OF MOUNTAIN-PACIFIC PASSENGER DEFICITS.  THEY FURTHER
CONTEND THAT THIS TREATMENT WAS INVALID ON THE GROUNDS THAT IT
CONSTITUTED UNFAIR PROCEDURAL SURPRISE, THAT THE STATUTE DOES NOT
PERMIT THE COMMISSION TO DIFFERENTIATE RAILROADS' PERFORMANCE AS
FREIGHT CARRIERS AND PASSENGER CARRIERS WHEN IT ASSESSES REVENUE NEEDS
IN A FREIGHT RATE DIVISIONS CASE, AND THAT THE COMMISSION ERRED IN
ASSUMING THAT, BECAUSE THEIR STATISTICAL PASSENGER DEFICITS HAD
INCREASED, THE MOUNTAIN-PACIFIC CARRIERS WERE CAPABLE OF MAKING A REAL
IMPROVEMENT IN THEIR OVERALL PERFORMANCE BY REDUCING PASSENGER
SERVICE. 

WE REGARD THE ASSUMPTION THAT THE COMMISSION ATTACHED GREAT
IMPORTANCE TO MOUNTAIN-PACIFIC PASSENGER DEFICITS IN RAISING THE
MIDWESTERN DIVISIONS AS FANCIFUL.  AS WE HAVE ALREADY NOTED, THOSE
INCREASES WERE BASED EXCLUSIVELY OR ALMOST ENTIRELY ON COST
CONSIDERATIONS.  TO THE EXTENT THE COMMISSION MAY HAVE RELIED ON
COMPARATIVE REVENUE NEEDS, PASSENGER DEFICITS WERE NOT A SIGNIFICANT
FACTOR.  THE DISCUSSION OF PASSENGER DEFICITS IN THE COMMISSION'S
ORIGINAL REPORT OCCURRED PRIMARILY IN THE CONTEXT OF COMPARING THE
REVENUE NEEDS OF THE MOUNTAIN-PACIFIC CARRIERS WITH THOSE OF THE
EASTERN ROADS, WHEN THE COMMISSION EMPHASIZED THAT THE EASTERN
RAILROADS HAD BEEN MUCH MORE SUCCESSFUL IN CURBING LOSSES ON PASSENGER
SERVICE THAN THE MOUNTAIN-PACIFIC CARRIERS.  ANY ERROR IN THE
COMMISSION'S TREATMENT OF PASSENGER DEFICITS PREJUDICED THE MIDWESTERN
AS WELL AS THE MOUNTAIN-PACIFIC CARRIERS, FOR IN REJECTING A MIDWESTERN
REVENUE NEEDS ARGUMENT IN ITS SUPPLEMENTAL REPORT, THE COMMISSION NOTED
THAT THE MIDWESTERN CARRIERS HAD ALSO DONE A MUCH POORER JOB THAN THE
EASTERN CARRIERS IN HALTING THE SWELL OF PASSENGER DEFICITS. 
FURTHERMORE, THE COMMISSION DID NOT IGNORE THE OVERALL FINANCIAL
STRENGTH OF THE VARIOUS GROUPS OF CARRIERS, BUT FOUND THAT THE MOUNTAIN
PACIFIC CARRIERS' RATE OF RETURN FROM ALL SERVICES WAS SUBSTANTIALLY
HIGHER THAN THAT OF EITHER THE MIDWESTERN OR EASTERN CARRIERS. 

THE CLAIM OF UNFAIR SURPRISE IS STRAINED IN LIGHT OF THE FACT THAT THE
COMMISSION HAS FREQUENTLY DIFFERENTIATED PASSENGER AND FREIGHT REVENUES
IN FREIGHT RATE DIVISION CASES.  (FN28)  WHILE PASSENGER DEFICITS DID
NOT BECOME AN IMPORTANT ISSUE IN THIS CASE UNTIL THE REPORT OF THE
HEARING EXAMINERS WAS HANDED DOWN, THE COMMISSION RELIED UPON
STATISTICS WHICH WERE MATTERS OF PUBLIC RECORD, AND THE MOUNTAIN
PACIFIC CARRIERS HAD AMPLE OPPORTUNITY TO DEBATE THE ISSUE IN THEIR
EXCEPTIONS TO THE HEARING EXAMINERS' REPORT AND THEIR PETITIONS FOR
RECONSIDERATION OF THE COMMISSION'S ORIGINAL DECISION.  AND WHILE THE
COMMISSION HAS SOMETIMES ACTED TO OFFSET PASSENGER DEFICITS IN FREIGHT
RATE CASES, (FN29) THE ISSUES ARE QUITE DIFFERENT WHEN, IN A DIVISIONS
CASE, IT IS ARGUED THAT CARRIERS IN ONE PART OF THE COUNTRY SHOULD
SUBSIDIZE THE PASSENGER OPERATIONS OF CARRIERS ELSEWHERE. 

IF THE COMMISSION WERE TO GIVE CONTROLLING WEIGHT TO PASSENGER
DEFICITS IN A DIVISIONS CASE, IT MIGHT BE APPROPRIATE TO TAKE MORE
EVIDENCE ON THE ISSUE AND DISCUSS IT IN GREATER DEPTH THAN THE
COMMISSION DID HERE.  BUT IN LIGHT OF THE FACT THAT, IN THIS CASE,
PASSENGER DEFICITS WERE OF NEGLIGIBLE RELEVANCE TO THE COMMISSION'S
DECISION TO INCREASE THE MIDWESTERN DIVISIONS, WE FIND NO ERRORS IN THE
COMMISSION'S FINDINGS AND PROCEDURE ON THIS POINT THAT WOULD JUSTIFY
SETTING ASIDE ITS ORDER. 

                                       IV. 

REJECTION OF THE APPELLEES' ATTACKS ON THE COMMISSION'S TREATMENT OF
REVENUE NEEDS DOES NOT EXHAUST THEIR ARSENAL.  FOR THEY ARGUE THAT THE
COMMISSION'S FINDINGS ON COSTS, WHICH WERE THE BASIS OF ITS DECISION TO
RAISE THE MIDWESTERN DIVISIONS, WERE ALSO INFECTED WITH SERIOUS ERROR. 

ALL ARE AGREED THAT THE RELEVANT COSTS ARE THOSE OF THE EASTERN
TRANSCONTINENTAL AND MIDWESTERN-TRANSCONTINENTAL FREIGHT TRAFFIC TO
WHICH THE DIVISIONS APPLY.  BUT THROUGHOUT THE PROCEEDINGS THERE HAS
BEEN SHARP DISPUTE AS TO THE PROPER METHOD OF ASCERTAINING THESE
COSTS.  AT THE BEGINNING OF THE ADMINISTRATIVE HEARINGS, THE MIDWESTERN
AND EASTERN CARRIERS RELIED PRINCIPALLY ON THE COMMISSION'S STANDARD
RAIL FORM A, A FORMULATION BASED ON AVERAGE FREIGHT DATA WHICH, AS THE
COMMISSION NOTED, "HAS BEEN WIDELY USED AS AN ACCEPTABLE MEANS OF
COMPARING RELATIVE TRANSPORTATION COSTS."  THE MOUNTAIN-PACIFIC
CARRIERS TOOK THE POSITION THAT RAIL FORM A, BASED ON AVERAGES OF ALL
FREIGHT SERVICE, WAS NOT A PROPER YARDSTICK FOR MEASURING THE COSTS OF
THE PARTICULAR TRAFFIC INVOLVED IN THE CONTESTED DIVISIONS, WHICH, THEY
MAINTAINED, HAD CERTAIN DISTINCTIVE CHARACTERISTICS.  THE MOUNTAIN
PACIFIC ROADS PREPARED THEIR OWN COST SYSTEM, BASED UPON A STUDY OF
THIS TRAFFIC.  THE MIDWESTERN AND EASTERN LINES RESPONDED WITH OTHER
MATERIAL, AND THE MIDWESTERN CARRIERS CONDUCTED THEIR OWN SPECIAL STUDY
OF LINE-HAUL SERVICES.  DISPUTES OVER THE APPLICABILITY OF RAIL FORM A
AND THE VARIOUS APPROACHES URGED BY THE PARTIES OCCUPIED A LARGE PART
OF THE ADMINISTRATIVE PROCEEDINGS.  AS THE COMMISSION OBSERVED: 

"THE EVIDENCE PERTAINING TO THE COST STUDIES OF THE MOUNTAIN-PACIFIC
CARRIERS AND THE MIDWESTERN LINES WAS EXTENSIVE.  IN ADDITION TO THE
DETAILED TESTIMONY OF THE COST ANALYSTS WHO PLANNED THE STUDIES AND
SUPERVISED THEIR COMPILATION, EVIDENCE WAS PRESENTED BY MANY OTHER
WITNESSES CONCERNED WITH OPERATING, STATISTICAL, ENGINEERING, AND
MATHEMATICAL ASPECTS OF THE PROJECTS.  IN CRITICISM OF THE STUDIES THE
EASTERN CARRIERS AND THE MIDWESTERN LINES ALSO INTRODUCED DETAILED
EVIDENCE OF THE SAME GENERAL NATURE AND CONSIDERABLE BULK." 

AFTER CAREFULLY CONSIDERING THIS EVIDENCE, THE COMMISSION DECIDED TO
BASE ITS COST FINDINGS ON THE SPECIAL COST STUDY AND ANALYSIS PREPARED
BY THE MOUNTAIN-PACIFIC CARRIERS.  HOWEVER, IT MADE CERTAIN ADJUSTMENTS
IN THE MOUNTAIN-PACIFIC ANALYSIS WHICH, IN THE JUDGMENT OF THE
COMMISSION, MORE ACCURATELY REFLECTED THE TRUE COSTS OF THE TRAFFIC
INVOLVED. 

THE COMMISSION SUBSTITUTED ITS OWN RATIO FOR EMPTY-CAR RETURNS,
DERIVED FROM RAIL FORM A, FOR THAT DEVISED BY THE MOUNTAIN-PACIFIC
CARRIERS.  IT SUMMARIZED ITS REASONS FOR THIS CHOICE IN ITS
SUPPLEMENTAL REPORT: 

"IT IS DIFFICULT TO ASCRIBE THE EMPTY MOVEMENT OF A CAR TO A
PARTICULAR COMMODITY OR CLASS OF TRAFFIC BECAUSE OF THE VARIETY OF THE
LADING, AND THE FACT THAT CARS USED OCCASIONALLY FOR HAULING
TRANSCONTINENTAL TRAFFIC MAY AT OTHER TIMES SERVE WIDELY DIFFERENT
USES, INCLUDING LOCAL MOVEMENTS WITHIN EACH TERRITORY  ...  .  THE
DEFENDANTS URGE THAT INSUFFICIENT CONSIDERATION WAS GIVEN TO SPECIAL
CARS  ...  .  THEY WOULD BE INCLUDED IN RAIL FORM A TENDING TO INCREASE
THE EMPTY-RETURN RATIOS IN ALL TERRITORIES.  HERE THEY ACCOUNTED FOR
ONLY ABOUT 4 PERCENT OF THE TOTAL MOVEMENT  ... 

"MANY SPECIAL STUDIES OF EMPTY-RETURN MOVEMENT WERE UNDERTAKEN IN
THESE PROCEEDINGS, EACH SHOWING A DIFFERENT RESULT.  THE DEFICIENCIES
IN THE MOUNTAIN-PACIFIC CARRIERS' STUDIES OF GENERAL-PURPOSE BOXCAR
EMPTY RETURN  ...  ARE SO SERIOUS IN OUR OPINION AS TO RENDER THEM
WITHOUT VALUE.  WE ADHERE TO OUR PRIOR FINDING THAT THE 7-DAY STUDIES
MADE UNDER AN ORDER OF THE COMMISSION AND BASED ON UNIFORM INSTRUCTIONS
TO ALL THE RAILROADS AS TO HOW THE STUDIES WERE TO BE MADE, AFFORD A
MORE RELIABLE BASIS OF COMPARISON AMONG TERRITORIES.  MOREOVER, ON THE
BASIS OF THE EVIDENCE IN THIS RECORD, THE 7-DAY STUDIES PROVIDE
APPROPRIATE COMPARATIVE RATIOS TO THE TRAFFIC IN ISSUE." 

THE COMMISSION ALSO DISAGREED WITH THE MOUNTAIN-PACIFIC STUDY'S
TREATMENT OF THE "CONSTANT COST" ELEMENT OF ROAD COSTS - THAT WHICH IS
UNRELATED TO VOLUME OF TRAFFIC.  IT FOUND THE ACCOUNTING METHODS USED
TO DISTRIBUTE THESE COSTS IN RAIL FORM A TO BE MORE ACCURATE.  THE
MOUNTAIN-PACIFIC ROADS CLAIMED THAT THIS METHOD UNDULY FAVORED THE
MIDWESTERN LINES BY IMPROPERLY ASCRIBING THE MAINTENANCE COSTS OF
BRANCH AND LIGHT-DENSITY MAIN LINES TO THE COST OF THEIR
TRANSCONTINENTAL TRAFFIC.  THE COMMISSION, HOWEVER, FOUND THAT THE
EVIDENCE SHOWED: 

"THAT THE PROPORTION OF BRANCH LINE MILEAGE FOR EACH GROUP IS ALMOST
THE SAME AND THE AMOUNT OF TRAFFIC ON BRANCH LINES IS SO SMALL THAT
SOME OTHER FACTORS CAUSE THE LOWER UNIT COST IN MOUNTAIN-PACIFIC
TERRITORY.  THE PRINCIPAL FACTOR IS CLEARLY THE HIGH DENSITY OF
TRAFFIC, 76 PERCENT HIGHER THAN THE MIDWEST. 

"ALTHOUGH THE COST PER MILE MAY BE SOMEWHAT HIGHER IN MOUNTAINOUS
TERRITORY, THIS HIGHER COST IS SHARED BY SO MANY MORE TONS OF TRAFFIC
THAT THE COST PER TON-MILE IS LOWER. 

"IT IS THE LIGHT DENSITY ON THE MAIN LINES IN THE MIDWEST WHICH
CAUSES THEIR HIGHER COSTS.  THESE LINES ARE USED BY BRIDGE TRAFFIC, AND
IT IS, THEREFORE, QUITE CORRECT TO CHARGE THIS BRIDGE TRAFFIC WITH ITS
PROPORTIONATE SHARE OF MAINTAINING THE LINES OVER WHICH IT MOVES."  THE
COMMISSION MADE CERTAIN ADJUSTMENT IN THE BASIS FOR DETERMINING
LOCOMOTIVE COSTS; THE MOUNTAIN-PACIFIC CARRIERS' OBJECTIONS TO THIS
ADJUSTMENT WERE DIRECTED AT THE COMMISSION'S RELIANCE ON DIFFERENCES IT
FOUND BETWEEN ENGINE DISTRICTS IN EASTERN TERRITORY AND THOSE
ELSEWHERE.  ANY ERROR IN THIS ADJUSTMENT IS THUS RELEVANT ONLY TO THE
EASTERN DIVISIONS, WHICH ARE NO LONGER IN ISSUE.  THE COMMISSION ALSO
SUBSTITUTED RAIL FORM A TREATMENT OF CAR SERVICE COSTS, AFTER FINDING
THAT THE MOUNTAIN-PACIFIC STUDY IGNORED ACTUAL TERRITORIAL DIFFERENCES
IN THIS ITEM.  AGAIN, THIS ISSUE RELATED ONLY TO THE EASTERN
DIVISIONS.  IN ASCERTAINING THE COST ATTRIBUTABLE TO EQUIPMENT USED IN
THE SERVICE AT ISSUE, THE COMMISSION CHOSE A 4% RATE OF RETURN ON
INVESTMENT, A FIGURE TRADITIONALLY EMPLOYED BY IT FOR THIS PURPOSE,
RATHER THAN THE 6% FIGURE URGED BY THE MOUNTAIN-PACIFIC CARRIERS.  AND,
IN HARMONY WITH ITS TREATMENT OF REVENUE NEEDS, THE COMMISSION CHOSE
ITS STANDARD VALUE BASIS TO MEASURE THE INVESTMENT INVOLVED, RATHER
THAN THE BOOK COST USED BY THE MOUNTAIN-PACIFIC STUDY.  (FN30)  FROM
THE MOUNTAIN-PACIFIC COST STUDY, AS ADJUSTED IN THESE PARTICULARS, THE
COMMISSION FOUND THAT THE MOUNTAIN-PACIFIC CARRIERS ENJOYED A MUCH
HIGHER MARGIN OF REVENUE OVER COSTS THAN DID THE MIDWESTERN CARRIERS,
AND FOR THIS REASON PRESCRIBED INCREASES IN THE MIDWESTERN DIVISIONS. 

IN THE PROCEEDINGS BEFORE THE DISTRICT COURT, THE MOUNTAIN-PACIFIC
CARRIERS GENERALLY ATTACKED THE ADJUSTMENTS MADE BY THE COMMISSION IN
THEIR COST STUDY, CLAIMING THAT THEIR APPROACH MORE ACCURATELY
REFLECTED THE COSTS INVOLVED.  THEY PARTICULARLY MAINTAINED THAT THE
COMMISSION SHOULD HAVE FORCED THE EASTERN AND MIDWESTERN CARRIERS TO
PRODUCE EVIDENCE ON EMPTY-CAR RETURN RATIOS ON THE SAME BASIS THAT THE
MOUNTAIN-PACIFIC CARRIERS HAD USED IN THEIR COST STUDY.  THE MIDWESTERN
CARRIERS, HOWEVER, HAD COME FORWARD WITH SPECIFIC EMPTY-RETURN DATA,
AND THE COMMISSION ALSO OBSERVED THAT: 

"IN THE PREHEARING CONFERENCE IN THE INSTANT CASES THE ADVISABILITY
OF INSTITUTING AN OVERALL GENERAL INVESTIGATION WAS DISCUSSED BUT THE
MOUNTAIN-PACIFIC CARRIERS OPPOSED THE SUGGESTION, AND THE MATTER WAS
DROPPED  ...  .  NOR DO WE SEE IN THE RECORD ANY BASIS FOR ASSUMING
THAT THE EASTERN AND MIDWESTERN COMPLAINANTS WITHHELD VITAL EVIDENCE
MERELY BECAUSE THEY HAD DIFFERENT CONCEPTIONS OF THE NATURE AND EXTENT
OF FACTS TO BE DEVELOPED." 

THE MOUNTAIN-PACIFIC CARRIERS ALSO CONTENDED THAT CERTAIN FACTUAL
PREMISES ON WHICH THE COMMISSION BASED ITS ALLOCATION OF ROAD
MAINTENANCE COSTS WERE ERRONEOUS, AND THAT THERE WAS NO FOUNDATION FOR
THE COMMISSION'S CHOICE OF A VALUE BASIS FOR INVESTMENT RATHER THAN
BOOK COST. 

THE DISTRICT COURT DID NOT DIRECTLY DEAL WITH THESE CONTENTIONS,
STATING RATHER CRYPTICALLY THAT IN LIGHT OF ITS CONCLUSIONS ON THE
REVENUE NEEDS ISSUES, "IT IS UNNECESSARY TO DISCUSS THE COST ISSUES. 
HOWEVER, NO INFERENCE IS TO BE DRAWN THAT THE COURT IS OF THE OPINION
THAT THE COST ISSUES, OR ANY OTHER NUMBERED ISSUES NOT DISCUSSED IN
THIS OPINION, ARE OF THE NATURE IT WOULD BE REQUIRED TO DECIDE SHOULD
THEY BE RAISED AT SOME FUTURE TIME."  (FN31) 

THE APPELLEES ARGUE THAT SINCE THE DISTRICT COURT FAILED TO PASS ON
THE COST ISSUES, WE ARE PRECLUDED FROM DOING SO.  IT IS TRUE THAT WE
HAVE OCCASIONALLY STATED THAT IT IS NOT OUR GENERAL PRACTICE "TO REVIEW
AN ADMINISTRATIVE RECORD IN THE FIRST INSTANCE."  UNITED STATES V.
GREAT NORTHERN R. CO., 343 U.S. 562, 578; SEABOARD AIR LINE R. CO. V.
UNITED STATES, 382 U.S. 154, 157.  BUT WE THINK THAT POLICY IS NOT
APPLICABLE ON THE FACTS OF THIS CASE.  THE PRESENTATION AND DISCUSSION
OF EVIDENCE ON COST ISSUES CONSTITUTED A DOMINANT PART OF THE LENGTHY
ADMINISTRATIVE HEARINGS, AND THE ISSUES WERE THOROUGHLY EXPLORED AND
CONTESTED BEFORE THE COMMISSION.  ITS FACTUAL FINDINGS AND TREATMENT OF
ACCOUNTING PROBLEMS CONCERNED MATTERS RELATING ENTIRELY TO THE SPECIAL
AND COMPLEX PECULIARITIES OF THE RAILROAD INDUSTRY.  OUR PREVIOUS
DESCRIPTION OF THE COMMISSION'S DISPOSITION OF THESE MATTERS IS
SUFFICIENT TO SHOW THAT ITS CONCLUSIONS HAD REASONED FOUNDATION AND
WERE WITHIN THE AREA OF ITS EXPERT JUDGMENT.  B.&O.R. CO. V. UNITED
STATES, 298 U.S. 349, 359; NEW YORK V. UNITED STATES, 331 U.S. 284,
328, 335, 349.  THIRTEEN YEARS HAVE ELAPSED SINCE THE COMPLAINTS IN
THIS CASE WERE FIRST FILED.  THE APPELLEES' ATTACKS ON THE LEGAL
VALIDITY OF THE COMMISSION'S FINDINGS ON COST ARE SO INSUBSTANTIAL THAT
NO USEFUL PURPOSE WOULD BE SERVED BY FURTHER PROCEEDINGS IN THE
DISTRICT COURT.  WE CONCLUDE THAT THERE WAS NO LEGAL INFIRMITY IN THE
COMMISSION'S COST FINDINGS.       V. 

THE COMMISSION DEVISED A SPECIAL DIVISIONAL SCALE, ADAPTED TO THE
PARTICULAR CIRCUMSTANCES OF THIS CASE AND DESIGNED TO PRODUCE THE
MODERATE OVERALL INCREASES IN THE MIDWESTERN DIVISIONS THAT IT FOUND
JUSTIFIED BY THE EVIDENCE RELATING TO COST OF SERVICE.  APPELLEES
CONTEND THAT THE COMMISSION DID NOT SUFFICIENTLY EXPLAIN ITS CHOICE OF
NEW DIVISIONS, THAT THE DIVISIONS ARE NOT JUSTIFIED BY THE EVIDENCE
RELATING TO COST, AND THAT THE COMMISSION WAS REQUIRED TO FIND THE
EXACT REVENUE EFFECT OF THE NEW DIVISIONS IN PRECISE DOLLAR AMOUNT. 
NONE OF THESE CONTENTIONS HAS SUFFICIENT MERIT TO WARRANT SETTING ASIDE
THE COMMISSION'S ORDER. 

IN DISCUSSING ITS CHOICE OF THE MODIFIED 29886 DIVISIONAL SCALE, THE
COMMISSION STATED: 

"ALTHOUGH BROAD GROUPS ARE NOW EMPLOYED IN CONNECTION WITH THE
DIVISIONS OF RATES BETWEEN MIDWESTERN AND TRANSCONTINENTAL TERRITORIES,
THEY ARE LESS WELL DEFINED THAN THOSE ON WHICH THE EASTERN
TRANSCONTINENTAL DIVISIONS ARE BASED, AND IN A NUMBER OF INSTANCES THEY
APPEAR NOT TO BE PROPERLY RELATED TO DISTANCE.  THE MIDWESTERN LINES
URGE THAT IN LIEU OF PRESCRIBING NEW MIDWESTERN-TRANSCONTINENTAL
DIVISIONS ON A GROUP BASIS WE SHOULD FORMULATE SCALES OF DIVISIONAL
FACTORS AND AUTHORIZE THE TWO GROUPS OF CARRIERS TO APPLY THESE TO
GROUPS AGREED UPON BY THEM.  THE DEFENDANTS APPARENTLY ARE NOT OPPOSED
TO THAT COURSE.  IN OUR OPINION DIVISIONAL SCALES AFFORD AN APPROPRIATE
MEANS OF READJUSTING THE MIDWESTERN-TRANSCONTINENTAL DIVISIONS, AND THE
POSSIBILITY OF SUCH USE WAS DISCUSSED EXTENSIVELY IN THE RECORD." 

THE COMMISSION THEN REJECTED CERTAIN DIVISIONAL SCALES URGED BY THE
MOUNTAIN-PACIFIC LINES ON THE GROUND THAT THEY WERE NOT JUSTIFIED BY
THE EVIDENCE ON COST OF SERVICE.  HOWEVER, IT FOUND THAT THE 29886
SCALE, WHICH HAD BEEN DISCUSSED BY A WITNESS FOR THE MOUNTAIN-PACIFIC
CARRIERS, AND WHICH THE COMMISSION HAD EMPLOYED PREVIOUSLY, COULD BE
ADAPTED FOR USE IN THIS CASE AFTER ADJUSTMENTS WERE MADE TO REFLECT
CERTAIN MOUNTAIN-PACIFIC COSTS: 

"CONSISTENCY WITH OUR ACTION IN PRESCRIBING INTRATERRITORIAL CLASS
RATES FOR MOUNTAIN-PACIFIC TERRITORY HIGHER THAN THOSE IN THE REST OF
THE COUNTRY  ...  MAKES IT LOGICAL TO PROVIDE A HIGHER SCALE OF
DIVISIONAL FACTORS FOR THAT TERRITORY HERE, BUT A DIFFERENCE OF MORE
THAN 10 PERCENT WOULD NOT BE JUSTIFIED IN OUR OPINION.  THE SCALES
SHOWN IN APPENDIX C REFLECT THAT DIFFERENCE.  THEY WOULD PRODUCE
MODERATE INCREASES IN SOME OF THE MOST IMPORTANT MIDWESTERN
DIVISIONS." 

BURLINGTON TRUCK LINES V. UNITED STATES, 371 U.S. 156, RELIED UPON BY
THE APPELLEES, IS THUS INAPPOSITE.  IN THAT CASE THE COURT STRESSED
THAT THERE WERE "NO FINDINGS AND NO ANALYSIS" TO JUSTIFY THE
COMMISSION'S CHOICE OF REMEDY, "NO INDICATION OF THE BASIS ON WHICH THE
COMMISSION EXERCISED ITS EXPERT DISCRETION."  371 U.S., AT 167.  SEE
ALSO GILBERTVILLE TRUCKING CO. V. UNITED STATES, 371 U.S. 115, 129
131.  HERE THE COMMISSION EXPLAINED WHY IT HAD RESORTED TO DIVISIONAL
SCALES AND WHY IT MODIFIED THE FAMILIAR 29886 SCALE; IT FOUND THAT THE
MODIFIED SCALE WOULD PRODUCE DIVISIONS APPROPRIATE TO ITS COST
FINDINGS.  THE COMMISSION'S "EXPERT DISCRETION" HAS A CONSIDERABLE ROLE
TO PLAY IN SO TECHNICAL A MATTER AS RAILROAD RATE DIVISIONS, AND THERE
WAS SUFFICIENT EXPLANATION OF ITS EXERCISE IN THIS CASE.  ALABAMA
G.S.R.  CO. V. UNITED STATES, 340 U.S. 216, 227-228; BOARD OF TRADE V.
UNITED STATES, 314 U.S. 534, 548. 

APPELLEES CLAIM THAT IF THE CHANGES IN DIVISIONS WERE BASED ON COSTS,
THE COMMISSION WAS REQUIRED TO START FROM SCRATCH AND CONSTRUCT THE NEW
DIVISIONAL SCALE DIRECTLY FROM COST DATA.  IN THEIR VIEW, A SCALE LIKE
THAT USED BY THE COMMISSION IN THIS CASE, CONSTRUCTED ON A WEIGHTED
MILEAGE BASIS AND ADJUSTED TO REFLECT COMPARATIVE COSTS, IS PER SE
INVALID.  WE CANNOT IMPOSE SUCH MECHANICAL RESTRICTIONS ON THE RANGE OF
REMEDIES FROM WHICH THE COMMISSION MAY CHOOSE.  IT IS TRUE THAT IN A
MORE RECENT TERRITORIAL DIVISIONS CASE, INVOLVING EASTERN AND SOUTHERN
TERRITORIES, THE COMMISSION DID ESTABLISH A DIVISIONAL SCALE
CONSTRUCTED DIRECTLY FROM COSTS.  (FN32)  BUT THE TWO METHODS OF
CONSTRUCTING DIVISIONAL SCALES ARE MERELY ALTERNATIVE MECHANISMS FOR
DIVIDING RATES IN CONFORMITY WITH THE EVIDENCE.  (FN33)  WHAT IS
APPROPRIATE IN ONE CASE MAY BE INAPPROPRIATE IN ANOTHER, AND THE FACT
THAT THE COMMISSION MAY, IN THE LIGHT OF ACCUMULATING EXPERIENCE,
DEVISE NEW REMEDIAL TECHNIQUES DOES NOT MAKE THE ONES THAT IT FORMERLY
EMPLOYED UNLAWFUL.  (FN34)  IT IS ALSO TRUE THAT THE CHANGES PRODUCED
BY THE NEW SCALE WERE NOT THE SAME FOR EVERY EXISTING DIVISION.  SOME
OF THE PARTICULAR MIDWESTERN DIVISIONS WERE INCREASED MORE THAN OTHERS,
AND A FEW WERE ACTUALLY REDUCED.  BUT THAT IS ONLY TO BE EXPECTED WHEN
A UNIFORM SCALE IS SUBSTITUTED FOR DIVISIONS PRODUCED BY NEGOTIATION
BETWEEN THE SEVERAL CARRIERS, AND ESPECIALLY WHEN, AS THE COMMISSION
FOUND, THE EXISTING DIVISIONS WERE BASED ON SUBGROUPINGS THAT WERE NOT
WELL-DEFINED.  CF. BEAUMONT, S.L.&W.R. CO. V. UNITED STATES, 282 U.S.
74, 86-88.  THE COMMISSION'S COST FINDINGS DICTATED MODERATE OVERALL
INCREASES IN THE MIDWESTERN DIVISIONS; THE REMEDY IT CHOSE WAS
APPROPRIATELY CALCULATED TO ACHIEVE THAT RESULT. 

THE DISTRICT COURT HELD THAT THE COMMISSION WAS REQUIRED TO FIND THE
EXACT EFFECT, IN PRECISE DOLLAR AMOUNT, OF THE NEW DIVISIONS ON THE
REVENUES OF EACH OF THE 300 CARRIERS INVOLVED IN THE COMMISSION
PROCEEDINGS.  THE APPELLEES ALSO CONTEND THAT THE COMMISSION WAS
OBLIGED TO MAKE SUCH FINDINGS, AT LEAST WITH RESPECT TO THE VARIOUS
CARRIER GROUPS INVOLVED.  THESE VIEWS STEM FROM THE SAME MISCONCEPTION
OF THE COMMISSION'S DECISION THAT WE HAVE ALREADY DEALT WITH IN THE
DISCUSSION CONCERNING REVENUE NEEDS.  THE COMMISSION DID NOT UNDERTAKE
TO TRANSFER LUMP SUMS OF MONEY FROM THE MOUNTAIN-PACIFIC CARRIERS TO
THE MIDWESTERN ROADS IN ORDER TO MEET CERTAIN DEFINED REVENUE NEEDS OF
THE LATTER CARRIERS.  IF IT HAD, THERE MIGHT BE MORE SUBSTANCE TO THESE
CONTENTIONS.  BUT, EVEN IN SUCH A CASE, ALL THE DETAILS OF THE
DIVISIONS' ACTUAL OPERATION MIGHT BE DIFFICULT TO FORESEE, AND PRECISE
CALCULATION IMPOSSIBLE.  IT IS ALSO DUBIOUS WHETHER ANY USEFUL
REGULATORY PURPOSE WOULD BE SERVED BY SUCH A RIGID REQUIREMENT, WHICH
THIS COURT HAS NEVER IMPOSED IN THE PAST.  (FN35)  IN ANY EVENT, THE
COMMISSION'S ACTION IN THIS CASE WAS BASED NOT ON REVENUE NEEDS, BUT
COST OF SERVICE, AND IT FOUND THAT THE DIVISIONS WHICH IT ESTABLISHED
WOULD PRODUCE MODERATE OVERALL INCREASES IN THE SHARES OF THE
MIDWESTERN GROUP, IN ACCORD WITH ITS COST FINDINGS.  NONE OF THE
FIGURES, CHARTS, OR TABLES CONCOCTED BY THE APPELLEES CONVINCES US THAT
THIS DETERMINATION WAS NOT BASED UPON SUBSTANTIAL EVIDENCE.  ALABAMA
G.S.R. CO. V. UNITED STATES, 340 U.S. 216, 227-228. 

FINALLY, THE MOUNTAIN-PACIFIC CARRIERS QUARREL WITH THE COMMISSION'S
PRESCRIPTION OF A MINIMUM DIVISION OF 15%.  THEY CONTEND THAT THE
EVIDENCE PERTAINING TO TERMINAL COSTS AND STANDBY COSTS THAT A
PARTICIPATING RAILROAD MUST INCUR REGARDLESS OF THE LENGTH OF ITS
CARRIAGE DOES NOT JUSTIFY SO HIGH A MINIMUM DIVISION.  BUT THE
COMMISSION FOUND THAT:  "BOTH IN MANY DIVISIONAL BASES VOLUNTARILY
ESTABLISHED IN THE PAST AND AS WELL IN OUR DECISIONS IT HAS BEEN COMMON
PRACTICE TO ACCORD MINIMUM DIVISIONS FOR CARRIERS HAVING RELATIVELY
SHORT HAULS, SOMETIMES AS HIGH AS 20 OR 25 PERCENT BUT MORE USUALLY 15
PERCENT.  THE INCREASINGLY BURDENSOME TERMINAL COSTS IN RECENT YEARS
ARE PERSUASIVE THAT A 15-PERCENT MINIMUM IS JUSTIFIED."  WE CANNOT FIND
THAT THE COMMISSION EXCEEDED ITS PROPER ROLE IN WEIGHING AND
INTERPRETING THE EVIDENCE WHEN IT MADE THIS FINDING.  B.&O.R. CO. V.
UNITED STATES, 298 U.S. 349, 359.  FOR SIMILAR REASONS, WE ALSO REJECT
THE MOUNTAIN-PACIFIC CARRIERS' CRITICISM OF THE WEIGHT ASSIGNED TO THE
FIRST 50 MILES OF CARRIAGE IN THE COMMISSION'S DIVISIONAL SCALES. 

     VI. 

THE APPELLEES FINALLY CONTEND THAT THE COMMISSION ERRED IN ITS
TREATMENT OF A SINGLE MOUNTAIN-PACIFIC CARRIER, THE DENVER & RIO
GRANDE, AND TWO MIDWESTERN CARRIERS, THE KATY AND THE FRISCO.  IT IS
ARGUED THAT THE SITUATION OF THESE THREE CARRIERS WAS DISSIMILAR TO
THAT OF THE GROUPS WITH WHOM THEY WERE CONSIDERED, THAT THE TYPICAL
EVIDENCE RULE OF THE NEW ENGLAND DIVISIONS CASE WAS INAPPLICABLE, AND
THAT THE COMMISSION WAS THEREFORE REQUIRED TO MAKE SEPARATE FINDINGS
CONCERNING THESE CARRIERS.  THE APPELLANTS POINT OUT THAT THESE
CARRIERS VOLUNTARILY ALIGNED THEMSELVES WITH THEIR RESPECTIVE GROUPS,
PRESENTED EVIDENCE AND ARGUED THE CASE ON THAT BASIS, AND NEVER
SUGGESTED THAT THEY SHOULD RECEIVE SEPARATE TREATMENT UNTIL AFTER THE
COMMISSION'S ORIGINAL DECISION.  THEY ARGUE THAT THE COMMISSION SHOULD
NOT BE REQUIRED, ON ITS OWN MOTION, TO GUESS WHICH OF 300 CARRIERS MAY
REQUIRE INDIVIDUAL TREATMENT WHEN NONE OF THEM EVEN REQUESTS IT.  CF.
UNITED STATES V. TUCKER TRUCK LINES, 344 U.S. 33, 37.  THE DISTRICT
COURT RESOLVED THESE CONTENTIONS BY STATING THAT "THERE HAS BEEN NO
INTENTIONAL RELINQUISHMENT OF A KNOWN RIGHT ON THE PART OF ANY OF THESE
ROADS."  (FN36)  THIS LANGUAGE IS MORE APPROPRIATE TO A CRIMINAL TRIAL
THAN AN ADMINISTRATIVE PROCEEDING.  RECONCILING THE NEED FOR EFFICIENT
REGULATORY ADJUDICATION WITH FAIRNESS TO THE PARTIES AND DUE CONCERN
FOR THE PUBLIC INTEREST IS A DIFFERENT, AND DIFFICULT, PROBLEM. 

BUT WE NEED NOT UNDERTAKE TO RESOLVE THIS PROBLEM IN ALL ITS BROAD
RAMIFICATIONS.  THE CONTENTIONS MADE ON BEHALF OF THE THREE INDIVIDUAL
CARRIERS ARE BASICALLY QUITE LIMITED.  IT IS NOT ARGUED THAT THE
COMMISSION ERRED IN GENERALLY TREATING THEM ON A GROUP BASIS AND NOT
MAKING INDIVIDUAL FINDINGS ON THEIR COSTS AND REVENUE NEEDS.  THE BASIC
CLAIM IS THAT THE DIVISIONS PRESCRIBED BY THE COMMISSION HAVE AN UNFAIR
AND UNDULY HARSH IMPACT ON THESE INDIVIDUAL CARRIERS. 

THE KATY AND THE FRISCO CLAIM THAT THE NEW DIVISIONS WILL RESULT IN A
NET DECREASE IN THEIR REVENUE SHARES; WHILE MANY OF THEIR DIVISIONS
WERE INCREASED UNDER THE COMMISSION'S ORDER, SOME HIGHLY PROFITABLE
DIVISIONS THAT THEY HAD NEGOTIATED WITH RESPECT TO LUMBER CARRIAGE WERE
REDUCED.  THE COMMISSION FOUND THAT THIS SITUATION "WAS FULLY DISCLOSED
IN THE EVIDENCE OF THE MIDWESTERN LINES AND FORESHADOWED IN THE
EXAMINERS' RECOMMENDED REPORT.  THE PETITIONERS ARE THEREFORE NOT IN A
POSITION TO CLAIM THAT THE EFFECT OF OUR DECISION WAS A SURPRISE."  BUT
MORE THAN PROCEDURAL GROUNDS JUSTIFY REJECTING THE TARDY CLAIMS OF THE
FRISCO AND THE KATY FOR SEPARATE TREATMENT.  THE ACT DOES NOT GIVE ANY
CARRIER A VESTED RIGHT TO DIVISIONS THAT IT MAY HAVE NEGOTIATED.  IT
DOES NOT RECOGNIZE PRESCRIPTIVE PRIVILEGES, BUT REQUIRES THE COMMISSION
TO ESTABLISH "JUST, REASONABLE, AND EQUITABLE DIVISIONS."  THE MERE
FACT THAT THE NEW DIVISIONS MAY HAVE CAUSED A NET REDUCTION IN THE
REVENUES OF TWO MIDWESTERN CARRIERS WHILE RAISING THOSE OF OTHER
MIDWESTERN CARRIERS DOES NOT ESTABLISH THE INVALIDITY OF THE NEW
DIVISIONS.  FOR THE HIGH DIVISIONS ON LUMBER PREVIOUSLY NEGOTIATED BY
THESE TWO ROADS MAY HAVE BEEN FAR IN EXCESS OF THEIR COST OF SERVICE. 
THE KATY AND THE FRISCO HAVE NOT SHOWN THAT THE NEW DIVISIONS DO NOT
FAIRLY REFLECT THEIR COST OF SERVICE.  THE COMMISSION WAS JUSTIFIED IN
STATING THAT "WE SEE NO REASON FOR MAKING A SPECIAL EXCEPTION FROM OUR
FINDINGS" FOR THEM. 

MOREOVER, THE LOSSES CLAIMED BY THE FRISCO AND THE KATY WERE BASED
PRIMARILY ON THE NEW DIVISIONS' EFFECT IN APPORTIONING REVENUES BETWEEN
THEMSELVES AND THE MOUNTAIN-PACIFIC CARRIERS.  BUT THIS ASPECT OF THE
CASE IS NO LONGER IN ISSUE, BECAUSE THE KATY AND THE FRISCO HAVE
SETTLED WITH THE MOUNTAIN-PACIFIC CARRIERS AND AGREED ON NEGOTIATED
DIVISIONS.  THUS, THE COMMISSION'S DIVISIONS AFFECT THE KATY AND THE
FRISCO ONLY INSOFAR AS THEY MUST DIVIDE REVENUES WITH OTHER MIDWESTERN
CARRIERS ON SERVICE IN WHICH THEY JOINTLY PARTICIPATE.  THE KATY AND
THE FRISCO ARE SILENT AS TO THE EFFECT ON THEIR REVENUES OF THE NEW
DIVISIONS OPERATING IN THIS MUCH MORE LIMITED RESPECT.  WE MAY ASSUME
THAT THE LOSSES PRODUCED, IF ANY, ARE SMALL. 

THE DENVER & RIO GRANDE ALSO COMPLAINS OF REDUCTIONS IN ITS REVENUES
CAUSED BY THE NEW DIVISIONS.  SINCE IT IS ONE OF THE MOUNTAIN-PACIFIC
CARRIERS, WHOSE EXISTING DIVISIONS THE COMMISSION FOUND TOO HIGH IN
TERMS OF COST OF SERVICE, SOME REDUCTION WAS OF COURSE TO BE EXPECTED. 
BUT THE DENVER & RIO GRANDE STATES THAT ITS COMPETITIVE AND
GEOGRAPHICAL SITUATION IS SUCH THAT IT MUST BEAR A DISPROPORTIONATE
SHARE OF THE REDUCTIONS IN THE MOUNTAIN-PACIFIC DIVISIONS, WITH
ALLEGEDLY DISASTROUS EFFECTS ON ITS NET INCOME. 

THE RIO GRANDE PARTICIPATES IN TRANSCONTINENTAL SERVICE BETWEEN UTAH
GATEWAYS (OGDEN AND SALT LAKE CITY) AND DENVER AND PUEBLO, COLORADO, ON
THE BORDER OF MOUNTAIN-PACIFIC TERRITORY.  THERE IT INTERCHANGES WITH
MIDWESTERN CARRIERS WHO PROVIDE SERVICE TO THE MISSOURI RIVER AND
BEYOND.  THE UNION PACIFIC OPERATES ENTIRELY BY ITSELF A COMPETITIVE
ROUTE BETWEEN UTAH AND MISSOURI RIVER GATEWAYS.  BOTH THE UNION PACIFIC
AND THE RIO GRANDE ACCEPT TRAFFIC AT THE UTAH GATEWAYS FROM THE WESTERN
PACIFIC AND THE SOUTHERN PACIFIC.  THE COMMISSION'S DIVISIONS BREAK AT
THE BORDER OF MOUNTAIN-PACIFIC TERRITORY, AT THE COLORADO JUNCTIONS,
BUT DO NOT PROVIDE FOR ANY SUBDIVISIONS IN MOUNTAIN-PACIFIC TERRITORY. 
THE RIO GRANDE COMPLAINS THAT, AS A RESULT, IT MUST BEAR THE WHOLE
REDUCTION IN THE MOUNTAIN-PACIFIC DIVISIONS.  ITS COMPETITOR, THE UNION
PACIFIC, IS UNAFFECTED BY THE NEW DIVISIONS BECAUSE IT OPERATES IN BOTH
MOUNTAIN-PACIFIC AND MIDWESTERN TERRITORY AND DOES NOT, INSOFAR AS
RELEVANT HERE, INTERCHANGE WITH MIDWESTERN CARRIERS.  THE RIO GRANDE
CONTENDS THAT THE SOUTHERN PACIFIC AND WESTERN PACIFIC WILL NOT ACCEPT
DIVISIONS FROM IT LOWER THAN THEY OBTAIN FROM THE UNION PACIFIC, AND
THUS IT WILL BE SQUEEZED.  IT ALLEGES THAT IT WILL LOSE $8,500,000 AS A
RESULT, AND THAT ITS NET INCOME IS ONLY $10,500,000.    DIVISIONS OVER
THESE COMPETING UTAH-MISSOURI RIVER ROUTES WERE EQUALIZED UNDER THE
EXISTING SYSTEM.  IN THE COMMISSION PROCEEDINGS, THE MIDWESTERN
CARRIERS URGED THAT THESE ROUTES ALSO BE EQUALIZED UNDER THE NEW
DIVISIONS.  HOWEVER, THIS WOULD REQUIRE THE COMMISSION TO ESTABLISH
SUBDIVISIONS IN MOUNTAIN-PACIFIC TERRITORY EAST AND WEST OF THE UTAH
GATEWAYS, AND THE MOUNTAIN-PACIFIC CARRIERS, INCLUDING THE RIO GRANDE,
RESISTED THIS PROPOSAL ON THE GROUND THAT IT WAS OUTSIDE THE ISSUES
RAISED BY THE PLEADINGS.  IF THE RIO GRANDE'S DESCRIPTION OF ITS
COMPETITIVE SITUATION IS ACCURATE IT WAS OBVIOUS, FROM AT LEAST THE
TIME OF THE EXAMINERS' RECOMMENDED REPORT, THAT IT WOULD BEAR MOST OR
ALL OF THE REDUCTIONS IN THE MOUNTAIN-PACIFIC DIVISIONS UNLESS THE
COMMISSION PRESCRIBED SUBDIVISIONS WITHIN MOUNTAIN-PACIFIC TERRITORY. 
NEVERTHELESS, IT JOINED THE OTHER MOUNTAIN-PACIFIC LINES IN STATING TO
THE COMMISSION THAT: 

"THE MIDWESTERN LINES ASK THAT THE COMMISSION FIX DIVISIONS OVER UTAH
GATEWAYS, NOT SERVED BY ANY MIDWESTERN LINE, IN THE INTEREST OF
EQUALIZING COMPETING ROUTES  ...  .  IN DEALING WITH THIS CONTENTION,
TWO CONSIDERATIONS MUST BE SHARPLY DIFFERENTIATED.  THE FIRST IS THE
GENERAL DESIRABILITY OF EQUALIZING DIVISIONS; THE MOUNTAIN-PACIFIC
LINES AGREE THAT THE PARTIES SHOULD BE FREE TO EQUALIZE DIVISIONS OVER
COMPETITIVE ROUTES  ...  .  BUT A VERY DIFFERENT QUESTION IS RAISED
WHEN THE MIDWESTERN LINES ASK THE COMMISSION TO PRESCRIBE DIVISIONS
OVER GATEWAYS 500 MILES INSIDE MOUNTAIN-PACIFIC TERRITORY AND SERVED
ONLY BY MOUNTAIN-PACIFIC LINES.  SUCH A PRESCRIPTION IS BEYOND THE
ISSUES OF THE COMPLAINTS BEFORE THE COMMISSION IN THIS PROCEEDING." 

IN REJECTING THE BELATED CLAIMS MADE BY THE MOUNTAIN-PACIFIC CARRIERS
ON BEHALF OF THE RIO GRANDE, THE COMMISSION WAS JUSTIFIED IN CONCLUDING
THAT:  THE MIDWESTERN COMPLAINANTS ARE CORRECT IN STATING THAT THE
'PROBLEM IS LEFT PRECISELY WHERE THE TRANSCONTINENTAL DEFENDANTS
INSISTED THAT IT BE LEFT.'   WE THEREFORE SEE NO REASON FOR THE
MODIFICATION OF OUR FINDINGS SOUGHT BY THE DEFENDANTS." 

OF COURSE, THE COMMISSION COULD NOT SIMPLY REST ON SUCH NOTIONS OF
ESTOPPEL TO JUSTIFY INFLICTION OF SUBSTANTIAL INJURY UPON AN IMPORTANT
RAILROAD SERVING THE PUBLIC.  BUT IT WAS NOT AT ALL CLEAR AT THE TIME
OF THE COMMISSION'S DECISION, AND IT IS STILL NOT CLEAR, THAT THE NEW
DIVISIONS WILL HAVE THE DISASTROUS OR UNFAIR EFFECTS ALLEGED BY THE RIO
GRANDE.  THE REVENUE EFFECT ON THE RIO GRANDE HINGES, IN IMPORTANT
PART, ON THE SUBDIVISIONS IT IS ABLE TO NEGOTIATE WITH THE OTHER
MOUNTAIN-PACIFIC CARRIERS.  THE MOUNTAIN-PACIFIC CARRIERS, INCLUDING
THE RIO GRANDE, URGED THE COMMISSION TO PERMIT SUCH VOLUNTARY
NEGOTIATION IN THE FIRST INSTANCE BEFORE TAKING ACTION ITSELF.  (FN37)
THE COMMISSION ACCEDED TO THIS REQUEST BY SPECIFICALLY PROVIDING IN ITS
ORDERS THAT THE CARRIERS INVOLVED WERE FREE TO NEGOTIATE DIVISIONS TO
EQUALIZE COMPETITIVE ROUTES BETWEEN GATEWAYS.  THUS AT THE TIME OF THE
COMMISSION'S DECISIONS, THE IMPACT OF THE NEW DIVISIONS ON THE RIO
GRANDE'S REVENUES WERE SPECULATIVE AND UNCERTAIN, AND VOLUNTARY
NEGOTIATION OF SUBDIVISIONS WAS AVAILABLE.  IT COULD BE ASSUMED THAT
THE ACTUAL REDUCTION IN THE RIO GRANDE'S REVENUES MIGHT TURN OUT TO BE
NO GREATER THAN THAT OF THE OTHER MOUNTAIN-PACIFIC CARRIERS.  IN THESE
CIRCUMSTANCES, THE COMMISSION WAS NOT REQUIRED TO REARRANGE THE
FOUNDATIONS OF A DECISION THAT HAD BEEN REACHED AFTER LONG YEARS OF
PROCEEDINGS AND AFFECTED 300 CARRIERS, NOR WAS IT REQUIRED TO EMBARK ON
NEW HEARINGS TO DEAL WITH THE RIO GRANDE'S CLAIMS. 

IT NOW APPEARS THAT THE IMPACT OF THE NEW DIVISIONS MAY IN FACT BE
MUCH LESS SEVERE THAN THE RIO GRANDE FEARED.  THE MIDWESTERN APPELLANTS
HAVE CITED EVIDENCE TENDING TO SHOW THAT THE REDUCTION IN ITS REVENUE
IS MORE LIKE $850,000 THAN $8,500,000.  WE, OF COURSE, DO NOT RESOLVE
THIS ISSUE.  BUT WE DO THINK THAT THE COMMISSION WAS JUSTIFIED IN
REFUSING PLENARY CONSIDERATION OF THE RIO GRANDE'S CLAIMS IN 1963.  IF
THE COMMISSION'S NEW DIVISIONS, IN CONNECTION WITH THE SUBDIVISIONS
THAT THE RIO GRANDE IS ABLE TO NEGOTIATE WITH ITS FELLOW MOUNTAIN
PACIFIC CARRIERS, DO HAVE AN IMPACT ON THE RIO GRANDE THAT IS UNFAIRLY
DISPROPORTIONATE OR SO SEVERE THAT THE RIO GRANDE'S ABILITY TO PROVIDE
SERVICE IS JEOPARDIZED, THE RIO GRANDE MAY APPLY TO THE COMMISSION FOR
RELIEF.  THERE IS NO REASON TO SUPPOSE THAT RELIEF WILL NOT BE PROMPTLY
FORTHCOMING IF THE RIO GRANDE'S CLAIM IS MERITORIOUS.  (FN38) 

WE CONCLUDE AS DID THE COURT IN THE NEW ENGLAND DIVISIONS CASE: 

"TO CONSIDER THE WEIGHT OF THE EVIDENCE, OR THE WISDOM OF THE ORDER
ENTERED, IS BEYOND OUR PROVINCE  ...  .  BUT THE WAY IS STILL OPEN TO
ANY CARRIER TO APPLY TO THE COMMISSION FOR MODIFICATION OF THE ORDER,
IF IT IS BELIEVED TO OPERATE UNJUSTLY IN ANY RESPECT."  261 U.S., AT
204. 

                                           VII. 

WE HOLD THAT THE COMMISSION'S ORIGINAL AND SUPPLEMENTAL ORDERS ARE
VALID, AND THAT THE DISTRICT COURT ERRED IN SETTING THEM ASIDE.  WHEN
IT ENTERED INTERLOCUTORY INJUNCTIONS AGAINST THESE ORDERS, THE DISTRICT
COURT IMPOSED CERTAIN PROTECTIVE CONDITIONS.  THEY PROVIDED THAT IF THE
COMMISSION'S ORDERS WERE EVENTUALLY UPHELD, THEY WOULD BE DEEMED
EFFECTIVE AS OF JULY 1, 1963, AND MARCH 30, 1964, RESPECTIVELY, AND THE
VARIOUS CARRIERS WOULD BE REQUIRED TO RESETTLE THE INTERIM REVENUES
THEY RECEIVED IN ACCORDANCE WITH THE DIVISIONS ESTABLISHED IN THE
ORDERS.  PENDING APPEAL OF ITS FINAL DECISION TO THIS COURT, THE
DISTRICT COURT STAYED EXECUTION OF ITS JUDGMENT PERMANENTLY SETTING
ASIDE THE COMMISSION'S ORDER AND REMANDING THE CASE TO THE COMMISSION;
WITH THE CONSENT OF THE PARTIES, IT ALSO PROVIDED THAT THESE PROTECTIVE
CONDITIONS SHOULD BE CONTINUED IN EFFECT.  THE COMMISSION HAS REQUIRED
THE CARRIERS INVOLVED TO ADOPT CERTAIN ACCOUNTING PROCEDURES DESIGNED
TO FACILITATE THE EVENTUAL IMPLEMENTATION OF THESE PROTECTIVE
CONDITIONS.  SINCE WE NOW UPHOLD THE VALIDITY OF THE COMMISSION'S
ORDERS, IT WILL BE NECESSARY FOR THE DISTRICT COURT, WITH SUCH
ASSISTANCE FROM THE COMMISSION AS SEEMS APPROPRIATE, TO SUPERVISE
RESETTLEMENT OF REVENUES IN ACCORDANCE WITH ITS PROTECTIVE CONDITIONS. 
THE JUDGMENT OF THE DISTRICT COURT IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED. 

FN1  INTERSTATE COMMERCE ACT, SEC. 15(6), 41 STAT. 486, 49 U.S.C.
SEC. 15(6).  SEE ALSO SEC. 1(4) OF THE ACT, 54 STAT. 900, 49 U.S.C.
SEC. 1(4), WHICH PROVIDES, IN PERTINENT PART, THAT:  "IT SHALL BE THE
DUTY OF EVERY  ...  COMMON CARRIER ESTABLISHING THROUGH ROUTES  ...  IN
CASE OF JOINT RATES, FARES, OR CHARGES, TO ESTABLISH JUST, REASONABLE,
AND EQUITABLE DIVISIONS THEREOF, WHICH SHALL NOT UNDULY PREFER OR
PREJUDICE ANY OF SUCH PARTICIPATING CARRIERS." 

FN2  321 I.C.C. 17, 322 I.C.C. 491. 

FN3  238 F. SUPP. 528. 

FN4  CERTAIN SOUTHERN CARRIERS DID PARTICIPATE IN SOME OF THE
PROCEEDINGS BEFORE THE COMMISSION IN RELATION TO SERVICE THEY PERFORM
IN EASTERN TERRITORY.  AND THE SOUTHERN GOVERNORS' CONFERENCE AND THE
SOUTHEASTERN ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS,
PARTIES IN PENDING LITIGATION INVOLVING DIVISI NS BETWEEN SOUTHERN AND
EASTERN TERRITORY, FILED AN AMICUS BRIEF HERE. 

FN5  ASSUME A CARRIAGE OF 1,000 MILES BY A MOUNTAIN-PACIFIC ROAD AND
500 MILES BY MIDWESTERN CARRIER.  ON A STRAIGHT MILEAGE BASIS OF
DIVIDING THE JOINT RATE FARE, THE MOUNTAIN-PACIFIC CARRIER WOULD
RECEIVE TWO-THIRDS OF THE FARE AND THE MIDWESTERN ROAD ONE-THIRD. 

UNDER THE SYSTEM DESCRIBED IN THE TEXT, THE MOUNTAIN-PACIFIC CARRIER
WOULD BE CREDITED WITH 1,500 MILES OF CARRIAGE AND THE MIDWESTERN LINE
500.  THEY WOULD ACCORDINGLY DIVIDE THE JOINT FARE ON A THREE-FOURTHS
ONE-FOURTH BASIS. 

FN6  IN 1929, THE COMMISSION UNDERTOOK ANOTHER INVESTIGATION OF THE
MIDWESTERN-TRANSCONTINENTAL DIVISIONS.  IN 1934, ON THE BASIS OF A
RECORD IT TERMED "MOST UNSATISFACTORY," THE COMMISSION CONCLUDED THAT
"WE ARE UNABLE TO FIND THAT THE DIVISIONS OF THE TRANSCONTINENTAL RATES
ARE UNLAWFUL."  DIVISIONS OF FREIGHT RATES, 203 I.C.C. 299, 335.  IN
THE PRESENT PROCEEDING, THE COMMISSION STATED THAT THE WEIGHT TO BE
ASCRIBED ITS 1934 DECISION WAS A QUESTION "OF LITTLE MOMENT ...  IN
VIEW OF CHANGES WHICH HAVE OCCURRED IN THE INTERVENING YEARS."  321
I.C.C. 17, 72. 

FN7  INTERSTATE COMMERCE ACT, SEC. 15(6), 41 STAT. 486, 49 U.S.C.
SEC. 15(6). 

FN8  THE VALUE OF THE INVESTMENT BASE WAS DETERMINED FOR THIS PURPOSE
BY THE VALUATIONS OF RAILROAD PROPERTY MADE BY THE COMMISSION'S BUREAU
OF VALUATION. 

FN9  THUS, FOR CARRIAGE BETWEEN THE BUFFALO-PITTSBURGH AREA TO POINTS
ON OR NEAR THE PACIFIC COAST, WITH INTERCHANGE AT CHICAGO, THE
COMMISSION PROVIDED THAT THE EASTERN CARRIER SHOULD RECEIVE 22% OF THE
JOINT FARE, LEAVING THE REMAINING 78% TO BE DIVIDED BETWEEN CARRIERS
PROVIDING SERVICE WEST OF CHICAGO. 

FN10  OFFICIAL-SOUTHWESTERN DIVISIONS, 287 I.C.C. 553. 

FN11  A FEW OF THE 50-MILE INCREMENTS ENJOY A FACTOR OF 13.  SEE
TABLE, N. 13, INFRA. 

FN12  SOME OF THE 50-MILE INCREMENTS ENJOY FACTORS OF 14 OR 15.  SEE
TABLE, N. 13, INFRA. 

FN13  THE SCALE PRESCRIBED BY THE COMMISSION IS AS FOLLOWS:

                             SCALES OF DIVISIONAL FACTORS. 

MILES     ONE      TWO      THREE MILES      ONE      TWO      THREE 

50      65      72      1,100      318      292        350 

100      77                  85      1,150      330      304
363 

150      89                  98      1,200      342      316
376 

200     101       75        111      1,250 354      328        389 

250     113       87        124   1,300      367      341        404 

300     125       99       138      1,350      379      353
417 

350     137      111        151      1,400      391      365
430 

400     149      123        164      1,450      403          443 

450     161      135        177      1,500   415                 457 

500     174      148        191     1,550      427
470 

550     186      160        205      1,600      439
483 

600  198      172        218      1,650      451                 496 

650     210      184        231      1,700      463            509 

700     222      196        244      1,750     475
523 

750     234      208        257      1,800      487
536 

800     246      220        271      1,850      499
549 

850    258      232        284      1,900      511 562 

900     270      244        297      1,950      523              575 

950     282      256        310      2,000      535
589 

1,000    294      268 323      2,050      547                 602 

1,050    306    280        337      2,100      559
615

                                    DEFINITIONS. 

COLUMN THREE PROVIDES THE FACTOR FOR THE MOUNTAIN-PACIFIC HAUL. 
COLUMN ONE PROVIDES THE MIDWESTERN FACTOR ON MIDWESTERN
TRANSCONTINENTAL TRAFFIC, AND COLUMN TWO THE MIDWESTERN FACTOR FOR
EASTERN-TRANSCONTINENTAL TRAFFIC.  COLUMN TWO ALSO APPLIES TO
SUBDIVISIONS OF CARRIAGE IN MIDWESTERN TERRITORY. 

TO ILLUSTRATE THE OPERATION OF THE SCALE, ASSUME A CARRIAGE OF 1,000
MILES IN MIDWESTERN TERRITORY BY A MIDWESTERN RAILROAD AND AN
ADDITIONAL CARRIAGE BY A MOUNTAIN-PACIFIC ROAD OF ANOTHER 1,000 MILES
IN MOUNTAIN-PACIFIC TERRITORY.  COLUMN ONE GIVES THE MIDWESTERN CARRIER
A FACTOR OF 294, AND COLUMN THREE ASSIGNS THE MOUNTAIN-PACIFIC RAILROAD
A FACTOR OF 323.  THE SUM OF THE FACTORS IS 617.  THE MIDWESTERN
CARRIER WOULD RECEIVE 294/617, OR 48% OF THE JOINT RATE, AND THE
MOUNTAIN-PACIFIC CARRIER 323/617, OR 52% OF THE RATE. 

FN14  CERTAIN INDIVIDUAL CONTENTIONS WERE ALSO MADE BY THE WABASH
RAILROAD ON PETITION FOR RECONSIDERATION BEFORE THE COMMISSION, BUT
THEY ARE NO LONGER PART OF THE ISSUES IN THESE CASES (HEREAFTER
REFERRED TO AS THIS CASE). 

FN15  238 F. SUPP., AT 539. 

FN16  THE NONSETTLING MIDWESTERN RAILROADS INCLUDE THE EIGHT
APPELLANTS IN NO. 8, THE CHICAGO & NORTH WESTERN, THE CHICAGO GREAT
WESTERN, THE CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC, THE GREEN BAY AND
WESTERN, THE GULF, MOBILE & OHIO, THE ILLINOIS CENTRAL, THE MISSOURI
PACIFIC, AND THE SOO LINE, AND 45 OF THEIR SHORT-LINE CONNECTIONS. 

FN17  ALSO INVOLVED ARE SUBDIVISIONS IN MIDWESTERN TERRITORY BETWEEN
THE MIDWESTERN APPELLANTS AND THE SETTLING MIDWESTERN ROADS. 
FURTHERMORE, FIVE OF THE MIDWESTERN APPELLANTS OPERATE IN A SMALL PART
OF EASTERN TERRITORY, COMPRISING SOUTHEASTERN ILLINOIS AND A FEW AREAS
IN INDIANA.  THE EASTERN DIVISIONS ARE APPLICABLE TO SOME OF THESE
OPERATIONS, BUT THE ONLY ACTIVE ISSUE BETWEEN THE APPELLANTS AND THE
MOUNTAIN-PACIFIC ROADS RELATING TO THESE DIVISIONS IS A 15% MINIMUM
DIVISION PRESCRIBED BY THE COMMISSION AND DISCUSSED IN PART V OF THIS
OPINION. 

FN18  BEAUMONT, S.L.&W.R. CO. V. UNITED STATES, 282 U.S. 74; B.&O.R.
CO. V. UNITED STATES, 298 U.S. 349; BOSTON & MAINE R. CO. V. UNITED
STATES, 371 U.S. 26, AFFIRMING 208 F. SUPP. 661.    FN19  E.G.,
SOUTHWESTERN-OFFICIAL DIVISIONS, 234 I.C.C. 135; DIVISIONS OF RATES,
OFFICIAL AND SOUTHERN TERRITORIES, 234 I.C.C. 175; OFFICIAL WESTERN
TRUNK LINE DIVISIONS, 269 I.C.C. 765; OFFICIAL-SOUTHERN DIVISIONS, 287
I.C.C. 497; OFFICIAL-SOUTHWESTERN DIVISIONS, 287 I.C.C.  553, 289
I.C.C. 11; OFFICIAL-SOUTHERN DIVISIONS, 325 I.C.C. 1. 

FN20  WE CANNOT ACCEPT THE NOTION THAT THE ADMINISTRATIVE PROCEDURE
ACT, 60 STAT. 237, AS AMENDED, 5 U.S.C. SECS. 551-559 (1964 ED. SUPP.
II), OVERRULED THESE ESTABLISHED PRECEDENTS AND IMPOSED A REQUIREMENT
OF INDIVIDUAL FINDINGS UPON THE COMMISSION. 

FN21  FOR EXAMPLE, IN OFFICIAL-SOUTHERN DIVISIONS, 325 I.C.C. 1, 449,
THE COMMISSION UNDERTOOK SEPARATE CONSIDERATION AND PRESCRIBED SPECIAL
DIVISIONS FOR THE NORFOLK SOUTHERN RAILROAD AFTER THAT CARRIER HAD
DISASSOCIATED ITSELF FROM ITS GEOGRAPHICAL GROUP AND PRESENTED EVIDENCE
ON AN INDIVIDUAL BASIS. 

FN22  THAT THE COMMISSION BASED ITS INCREASE OF THE MIDWESTERN
DIVISIONS ON COSTS IS FURTHER INDICATED BY ITS REJECTION, IN ITS
ORIGINAL REPORT, OF DIVISIONAL SCALES PROPOSED BY THE MOUNTAIN-PACIFIC
CARRIERS ON THE GROUND THAT THEY WERE BASED ON STUDIES WHICH
"UNDERSTATE THE COSTS OF THE MIDWESTERN LINES." 

FN23  THE EASTERN DIVISIONS DO APPLY TO SOME SERVICE BY FIVE OF THE
MIDWESTERN APPELLANTS IN A SMALL PART OF EASTERN TERRITORY, BUT THE
ONLY ACTIVE ISSUE WITH REGARD TO THESE DIVISIONS IS WHETHER THE
COMMISSION'S MINIMUM 15% DIVISIONS ARE JUSTIFIED BY THE EVIDENCE ON
COST.  SEE.  N. 17, SUPRA. 

FN24  SEE N. 8, SUPRA. 

FN25  AS THE COURT OBSERVED IN ICC V. HOBOKEN R. CO., 320 U.S. 368,
381, "THE PRESCRIPTION OF DIVISIONS WHERE CARRIERS ARE UNABLE TO AGREE
IS NOT A MERE PARTITION OF PROPERTY.  IT IS ONE ASPECT OF THE GENERAL
RATE POLICY WHICH CONGRESS HAS DIRECTED THE COMMISSION TO ESTABLISH AND
ADMINISTER IN THE PUBLIC INTEREST."  SEE ALSO THE NEW ENGLAND DIVISIONS
CASE, 261 U.S. 184, 195. 

FN26  E.G., NEW ENGLAND DIVISIONS, 66 I.C.C. 196, 202, ALABAMA &
MISSISSIPPI R. CO. V. A.,T.&S.F.R. CO., 95 I.C.C. 385, 402-403;
DIVISIONS OF FREIGHT RATES, 148 I.C.C. 457, 476; ATLANTIC COAST LINE R.
CO. V. ARCADE & A.R. CO., 194 I.C.C. 729, 752-755, 198 I.C.C. 375, 382
384; DIVISIONS OF FREIGHT RATES, 203 I.C.C. 299, 328, 342; SOUTHWESTERN
OFFICIAL DIVISIONS, 216 I.C.C. 687, 701-702, 739; SOUTHWESTERN-OFFICIAL
DIVISIONS, 234 I.C.C. 135, 146, 148; OFFICIAL-SOUTHERN DIVISIONS, 287
I.C.C. 497, 503-504; OFFICIAL-SOUTHWESTERN DIVISIONS, 287 I.C.C.  553,
564, 289 I.C.C. 11, 12. 

FN27  BEAUMONT, S.L.&W.R. CO. V. UNITED STATES, 282 U.S. 74; B.&O.R.
CO. V. UNITED STATES, 298 U.S. 349; BOSTON & MAINE R. CO. V. UNITED
STATES, 371 U.S. 26, AFFIRMING 208 F. SUPP. 661.  CF. NEW YORK V.
UNITED STATES, 331 U.S. 284, 329, 347-349. 

CHICAGO, M., ST. P.&P.R. CO. V. ILLINOIS, 355 U.S. 300, RELIED UPON
BY THE APPELLEES, IS NOT APPOSITE.  THERE THE COURT UPHELD THE DISTRICT
COURT IN SETTING ASIDE AN ORDER OF THE COMMISSION MADE UNDER SEC. 13(4)
OF THE INTERSTATE COMMERCE ACT, 24 STAT. 383, AS AMENDED, 49 U.S.C.
SEC. 13(4).  THE COMMISSION HAD ORDERED INCREASES IN FARES ON AN
INTRASTATE PASSENGER RUN MADE BY THE MILWAUKEE ROAD, ON THE GROUND THAT
EXISTING FARES DID NOT COVER OPERATING AND INDIRECT COSTS AND THUS
CONSTITUTED AN "UNDUE, UNREASONABLE, OR UNJUST DISCRIMINATION" AGAINST
THE MILWAUKEE ROAD'S INTERSTATE OPERATIONS.  THE COURT HELD THAT THE
COMMISSION ERRED IN COMPARING THE COSTS AND REVENUES OF THE PARTICULAR
INTRASTATE SERVICE INVOLVED INSTEAD OF ALL THE MILWAUKEE ROAD'S
INTRASTATE OPERATIONS IN ILLINOIS TAKEN TOGETHER.  IN A FOOTNOTE, THE
COURT ALSO STATED THAT IT AGREED WITH THE DISTRICT COURT'S HOLDING THAT
THE COMMISSION HAD NOT SATISFACTORILY EXPLAINED HOW IT DERIVED THE
FIGURE OF $77,000 AS THE COMMUTER SERVICE'S PROPER SHARE OF INDIRECT
COSTS.  355 U.S., AT 309-310, N. 8.  IT DID NOT HOLD THAT IN ANY
CONSIDERATION OF REVENUE NEED THE COMMISSION MUST MAKE FINDINGS IN
PRECISE DOLLAR AMOUNT, BUT THAT WHEN IT DOES MAKE PRECISE DOLLAR
FINDINGS AS THE BASIS FOR RAISING INTRASTATE FARES, IT MUST EXPLAIN HOW
THEY WERE DERIVED.  MOREOVER, DIFFERENT ISSUES ARE INVOLVED IN AN
INTRASTATE FARE CASE AND A RATE DIVISIONS CASE, AND IN THE FORMER
CONTEXT THIS COURT HAS NOTED THAT THE COMMISSION'S EXERCISE OF ITS SEC.
13(4) POWER MUST BE SCRUTINIZED "WITH SUITABLE REGARD TO THE PRINCIPLE
THAT WHENEVER THE FEDERAL POWER IS EXERTED WITHIN WHAT WOULD OTHERWISE
BE THE DOMAIN OF STATE POWER, THE JUSTIFICATION OF THE EXERCISE OF THE
FEDERAL POWER MUST CLEARLY APPEAR."  FLORIDA V. UNITED STATES, 282 U.S.
194, 211-212.  SEE ALSO PUB. SERVICE COMM'N V. UNITED STATES, 356 U.S.
421, 425-426. 

FN28  DIVISIONS OF FREIGHT RATES, 148 I.C.C. 457, 474-475; ATLANTIC
COAST LINE R. CO. V. ARCADE & A.R. CO., 194 I.C.C. 729, 753, 755;
SOUTHWESTERN-OFFICIAL DIVISIONS, 216 I.C.C. 687, 698, 708; FLORIDA EAST
COAST R. CO. V. ATLANTIC COAST LINE R. CO., 235 I.C.C. 211, 236-237;
OFFICIAL WESTERN TRUNK LINE DIVISIONS, 269 I.C.C. 765, 772; GARDNER V.
AKRON, C.&Y.R. CO., 272 I.C.C.  529, 573-577. 

FN29  E.G., INCREASED FREIGHT RATES, 1948, 276 I.C.C. 9, 35.  SEE
ALSO KING V. UNITED STATES, 344 U.S. 254, 263-264. 

FN30  ALSO, WHEN AS LITTLE AS 50% OF THE TRAFFIC ON A BRANCH LINE WAS
IN SOME WAY RELATED TO INTERTERRITORIAL SERVICE, THE MOUNTAIN-PACIFIC
STUDY CHARGED 100% OF THE EXPENSES OF THE BRANCH TO THE COST OF THE
LATTER SERVICE.  THE COMMISSION'S REJECTION OF THIS TECHNIQUE WAS NOT
CHALLENGED IN THE DISTRICT COURT. 

FN31  238 F. SUPP., AT 540. 

FN32  OFFICIAL-SOUTHERN DIVISIONS, 325 I.C.C. 1, 449.  THE PARTIES IN
THAT CASE SPECIFICALLY REQUESTED A COST-CONSTRUCTED SCALE. 

FN33  SEE BEAUMONT, S.L.&W.R. CO. V. UNITED STATES, 36 F.2D 789,799. 
THIS COURT HAS NEVER SUGGESTED THAT THERE WAS LEGAL INFIRMITY IN
DIVISIONAL SCALES CONSTRUCTED ON A BASIS SIMILAR TO THAT EMPLOYED BY
THE COMMISSION IN THIS CASE.  BEAUMONT, S.L.&W.R. CO. V. UNITED STATES,
282 U.S. 74; B.&O.R. CO. V. UNITED STATES, 298 U.S. 349; BOSTON & MAINE
R. CO. V. UNITED STATES, 371 U.S. 26, AFFIRMING 208 F. SUPP. 661. 

FN34  GEORGIA COMM'N V. UNITED STATES, 283 U.S. 765, 775.  SEE ALSO
VIRGINIAN R. CO. V. UNITED STATES, 272 U.S. 658, 665-666. 

FN35  SEE NN. 26 AND 27, SUPRA, AND ACCOMPANYING TEXT. 

FN36  238 F. SUPP., AT 539. 

FN37  AFTER THE EXAMINERS' RECOMMENDED REPORT, THE MOUNTAIN-PACIFIC
CARRIERS TOLD THE COMMISSION THAT:  "ANY LEGITIMATE CONCERN THE
MIDWESTERN LINES MAY HAVE IN ANY THREAT TO THE EQUALIZATION OF
DIVISIONS OVER UTAH GATEWAYS IS PREMATURE.  IF ANY PROBLEMS ARISE AS TO
EQUALIZATION OF DIVISIONS OVER THOSE GATEWAYS ON A FAIR AND EQUITABLE
BASIS, THEY CAN BE CONSIDERED IN THE NEGOTIATIONS CONTEMPLATED IN THE
RECOMMENDED REPORT." 

FN38  IN OFFICIAL-SOUTHERN DIVISIONS, 325 I.C.C. 449, 450, THE
COMMISSION STATED: 

"TO AVOID SERIOUS INJUSTICE TO ANY CARRIER, OUR PROCEDURES PERMIT ANY
RAILROAD TO BE EXCEPTED FROM A GROUP ORDER, IN WHOLE OR IN PART, ON A
PROPER SHOWING OF DIFFERING CIRCUMSTANCES.  WHERE IT IS DEMONSTRATED BY
COMPETENT AND RELIABLE EVIDENCE THAT A CARRIER'S FINANCIAL OR REVENUE
NEEDS SITUATION REQUIRES THE PRESERVATION OF ITS SHARE OF THE JOINT
RATES ON THE SAME LEVEL AS PRESENTLY EXISTING OR AT A LEVEL DIFFERENT
THAN THAT TO BE MAINTAINED FOR THE GROUP AS A WHOLE, WE MAY PROVIDE
SPECIAL INDIVIDUAL TREATMENT IN ORDER TO MAINTAIN SUCH CARRIER AS PART
OF THE NATION'S TRANSPORTATION SYSTEM WITHOUT REGARD TO ITS COSTS OF
RENDERING THE SERVICE." 
..END :





















REITMAN V. MULKEY 387 U.S. 369 


NO. 483.  ARGUED MARCH 20-21, 1967.  - DECIDED MAY 29, 1967.  - 64 CAL.
2D 529, 877, 413 P.2D 825, 847, AFFIRMED. 


THE CALIFORNIA LEGISLATURE, DURING THE PERIOD 1959-1963, ENACTED
SEVERAL STATUTES REGULATING RACIAL DISCRIMINATION IN HOUSING.  IN 1964,
PURSUANT TO AN INITIATIVE AND REFERENDUM, ART. I, SEC. 26, WAS ADDED TO
THE STATE CONSTITUTION.  IT PROVIDED IN PART THAT NEITHER THE STATE NOR
ANY AGENCY THEREOF "SHALL DENY, LIMIT OR ABRIDGE, DIRECTLY OR
INDIRECTLY, THE RIGHT OF ANY PERSON, WHO IS WILLING OR DESIRES TO SELL,
LEASE OR RENT ANY PART OR ALL OF HIS REAL PROPERTY, TO DECLINE TO SELL,
LEASE OR RENT SUCH PROPERTY TO SUCH PERSON OR PERSONS AS HE, IN HIS
ABSOLUTE DISCRETION, CHOOSES."  THE CALIFORNIA SUPREME COURT HELD THAT
ART. I, SEC. 26, WAS DESIGNED TO OVERTURN STATE LAWS THAT BORE ON THE
RIGHT OF PRIVATE PERSONS TO DISCRIMINATE, THAT IT INVALIDLY INVOLVED
THE STATE IN RACIAL DISCRIMINATION IN THE HOUSING MARKET AND THAT IT
CHANGED THE SITUATION FROM ONE IN WHICH DISCRIMINATORY PRACTICES WERE
RESTRICTED TO ONE WHERE THEY ARE "ENCOURAGED," WITHIN THE MEANING OF
THIS COURT'S DECISIONS.  THE COURT CONCLUDED THAT ART. I, SEC. 26,
UNCONSTITUTIONALLY INVOLVES THE STATE IN RACIAL DISCRIMINATION AND IS
THEREFORE INVALID UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  HELD: THE CALIFORNIA SUPREME COURT BELIEVES THAT ART. I,
SEC. 26, WHICH DOES NOT MERELY REPEAL EXISTING LAW FORBIDDING PRIVATE
RACIAL DISCRIMINATION BUT AUTHORIZES RACIAL DISCRIMINATION IN THE
HOUSING MARKET AND ESTABLISHES THE RIGHT TO DISCRIMINATE AS A BASIC
STATE POLICY, WILL SIGNIFICANTLY ENCOURAGE AND INVOLVE THE STATE IN
PRIVATE DISCRIMINATIONS.  NO PERSUASIVE CONSIDERATIONS INDICATING THAT
THE JUDGMENTS HEREIN SHOULD BE OVERTURNED HAVE BEEN PRESENTED, AND THEY
ARE AFFIRMED.  PP. 373-381. 

REITMAN ET AL. V. MULKEY ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER ART. I, SEC. 26, OF THE CALIFORNIA
CONSTITUTION DENIES "TO ANY PERSON  ...  THE EQUAL PROTECTION OF THE
LAWS" WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES.  (FN1)  SECTION 26 OF ART. I, AN
INITIATED MEASURE SUBMITTED TO THE PEOPLE AS PROPOSITION 14 IN A
STATEWIDE BALLOT IN 1964, PROVIDES IN PART AS FOLLOWS: 

"NEITHER THE STATE NOR ANY SUBDIVISION OR AGENCY THEREOF SHALL DENY,
LIMIT OR ABRIDGE, DIRECTLY OR INDIRECTLY, THE RIGHT OF ANY PERSON, WHO
IS WILLING OR DESIRES TO SELL, LEASE OR RENT ANY PART OR ALL OF HIS
REAL PROPERTY, TO DECLINE TO SELL, LEASE OR RENT SUCH PROPERTY TO SUCH
PERSON OR PERSONS AS HE, IN HIS ABSOLUTE DISCRETION, CHOOSES." 

THE REAL PROPERTY COVERED BY SEC. 26 IS LIMITED TO RESIDENTIAL
PROPERTY AND CONTAINS AN EXCEPTION FOR STATE-OWNED REAL ESTATE.  (FN2) 

THE ISSUE AROSE IN TWO SEPARATE ACTIONS IN THE CALIFORNIA COURTS,
MULKEY V. REITMAN AND PRENDERGAST V. SNYDER.  IN REITMAN, THE MULKEYS,
WHO ARE HUSBAND AND WIFE AND RESPONDENTS HERE, SUED UNDER SEC. 51 AND
SEC. 52 OF THE CALIFORNIA CIVIL CODE (FN3) ALLEGING THAT PETITIONERS
HAD REFUSED TO RENT THEM AN APARTMENT SOLELY ON ACCOUNT OF THEIR RACE. 
AN INJUNCTION AND DAMAGES WERE DEMANDED.   PETITIONERS MOVED FOR
SUMMARY JUDGMENT ON THE GROUND THAT SECS. 51 AND 52, INSOFAR AS THEY
WERE THE BASIS FOR THE MULKEYS' ACTION, HAD BEEN RENDERED NULL AND VOID
BY THE ADOPTION OF PROPOSITION 14 AFTER THE FILING OF THE COMPLAINT. 
THE TRIAL COURT GRANTED THE MOTION AND RESPONDENTS TOOK THE CASE TO THE
CALIFORNIA SUPREME COURT. 

IN THE PRENDERGAST CASE, RESPONDENTS, HUSBAND AND WIFE, FILED SUIT IN
DECEMBER 1964 SEEKING TO ENJOIN EVICTION FROM THEIR APARTMENT;
RESPONDENTS ALLEGED THAT THE EVICTION WAS MOTIVATED BY RACIAL PREJUDICE
AND THEREFORE WOULD VIOLATE SEC. 51 AND SEC. 52 OF THE CIVIL CODE. 
PETITIONER SNYDER CROSS-COMPLAINED FOR A JUDICIAL DECLARATION THAT HE
WAS ENTITLED TO TERMINATE THE MONTH-TO-MONTH TENANCY EVEN IF HIS ACTION
WAS BASED ON RACIAL CONSIDERATIONS.  IN DENYING PETITIONER'S MOTION FOR
SUMMARY JUDGMENT, THE TRIAL COURT FOUND IT UNNECESSARY TO CONSIDER THE
VALIDITY OF PROPOSITION 14 BECAUSE IT CONCLUDED THAT JUDICIAL
ENFORCEMENT OF AN EVICTION BASED ON RACIAL GROUNDS WOULD IN ANY EVENT
VIOLATE THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION. 
(FN4)  THE CROSS-COMPLAINT WAS DISMISSED WITH PREJUDICE (FN5) AND
PETITIONER SNYDER APPEALED TO THE CALIFORNIA SUPREME COURT WHICH
CONSIDERED THE CASE ALONG WITH MULKEY V. REITMAN.  THAT COURT, IN
REVERSING THE REITMAN CASE, HELD THAT ART. I, SEC. 26, WAS INVALID AS
DENYING THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH
AMENDMENT.  64 CAL. 2D 529, 413 P.2D 825.  FOR SIMILAR REASONS, THE
COURT AFFIRMED THE JUDGMENT IN THE PRENDERGAST CASE.  64 CAL. 2D 877,
413 P.2D 847.  WE GRANTED CERTIORARI BECAUSE THE CASES INVOLVE AN
IMPORTANT ISSUE ARISING UNDER THE FOURTEENTH AMENDMENT.  385 U.S. 967. 

WE AFFIRM THE JUDGMENTS OF THE CALIFORNIA SUPREME COURT.  WE FIRST
TURN TO THE OPINION OF THAT COURT IN REITMAN, WHICH QUITE PROPERLY
UNDERTOOK TO EXAMINE THE CONSTITUTIONALITY OF SEC. 26 IN TERMS OF ITS
"IMMEDIATE OBJECTIVE," ITS "ULTIMATE EFFECT" AND ITS "HISTORICAL
CONTEXT AND THE CONDITIONS EXISTING PRIOR TO ITS ENACTMENT."  JUDGMENTS
SUCH AS THESE WE HAVE FREQUENTLY UNDERTAKEN OURSELVES.  YICK WO V.
HOPKINS, 118 U.S. 356; MCCABE V. ATCHISON, TOPEKA & SANTA FE R. CO.,
235 U.S. 151; LOMBARD V. LOUISIANA, 373 U.S. 267; ROBINSON V. FLORIDA,
378 U.S. 153; TURNER V. CITY OF MEMPHIS, 369 U.S. 350; ANDERSON V.
MARTIN, 375 U.S. 399.  BUT HERE THE CALIFORNIA SUPREME COURT HAS
ADDRESSED ITSELF TO THESE MATTERS AND WE SHOULD GIVE CAREFUL
CONSIDERATION TO ITS VIEWS BECAUSE THEY CONCERN THE PURPOSE, SCOPE, AND
OPERATIVE EFFECT OF A PROVISION OF THE CALIFORNIA CONSTITUTION. 

FIRST, THE COURT CONSIDERED WHETHER SEC. 26 WAS CONCERNED AT ALL WITH
PRIVATE DISCRIMINATIONS IN RESIDENTIAL HOUSING.  THIS INVOLVED A REVIEW
OF PAST EFFORTS BY THE CALIFORNIA LEGISLATURE TO REGULATE SUCH
DISCRIMINATIONS.  THE UNRUH ACT, CIV. CODE SECS.  51-52, ON WHICH
RESPONDENTS BASED THEIR CASES, WAS PASSED IN 1959.  (FN6)  THE HAWKINS
ACT, FORMERLY HEALTH & SAFETY CODE SECS. 35700-35741, FOLLOWED AND
PROHIBITED DISCRIMINATIONS IN PUBLICLY ASSISTED HOUSING.  IN 1961, THE
LEGISLATURE ENACTED PROSCRIPTIONS AGAINST RESTRICTIVE COVENANTS. 
FINALLY, IN 1963, CAME THE RUMFORD FAIR HOUSING ACT, HEALTH & SAFETY
CODE SECS. 35700-35744, SUPERSEDING THE HAWKINS ACT AND PROHIBITING
RACIAL DISCRIMINATIONS IN THE SALE OR RENTAL OF ANY PRIVATE DWELLING
CONTAINING MORE THAN FOUR UNITS.  THAT ACT WAS ENFORCEABLE BY THE STATE
FAIR EMPLOYMENT PRACTICE COMMISSION. 

IT WAS AGAINST THIS BACKGROUND THAT PROPOSITION 14 WAS ENACTED.  ITS
IMMEDIATE DESIGN AND INTENT, THE CALIFORNIA COURT SAID, WERE "TO
OVERTURN STATE LAWS THAT BORE ON THE RIGHT OF PRIVATE SELLERS AND
LESSORS TO DISCRIMINATE," THE UNRUH AND RUMFORD ACTS, AND "TO FORESTALL
FUTURE STATE ACTION THAT MIGHT CIRCUMSCRIBE THIS RIGHT."  THIS AIM WAS
SUCCESSFULLY ACHIEVED:  THE ADOPTION OF PROPOSITION 14 "GENERALLY
NULLIFIES BOTH THE RUMFORD AND UNRUH ACTS AS THEY APPLY TO THE HOUSING
MARKET," AND ESTABLISHES "A PURPORTED CONSTITUTIONAL RIGHT TO PRIVATELY
DISCRIMINATE ON GROUNDS WHICH ADMITTEDLY WOULD BE UNAVAILABLE UNDER THE
FOURTEENTH AMENDMENT SHOULD STATE ACTION BE INVOLVED." 

SECOND, THE COURT CONCEDED THAT THE STATE WAS PERMITTED A NEUTRAL
POSITION WITH RESPECT TO PRIVATE RACIAL DISCRIMINATIONS AND THAT THE
STATE WAS NOT BOUND BY THE FEDERAL CONSTITUTION TO FORBID THEM.  BUT,
BECAUSE A SIGNIFICANT STATE INVOLVEMENT IN PRIVATE DISCRIMINATIONS
COULD AMOUNT TO UNCONSTITUTIONAL STATE ACTION, BURTON V. WILMINGTON
PARKING AUTHORITY, 365 U.S. 715, THE COURT DEEMED IT NECESSARY TO
DETERMINE WHETHER PROPOSITION 14 INVALIDLY INVOLVED THE STATE IN RACIAL
DISCRIMINATIONS IN THE HOUSING MARKET.  ITS CONCLUSION WAS THAT IT
DID. 

TO REACH THIS RESULT, THE STATE COURT EXAMINED CERTAIN PRIOR
DECISIONS IN THIS COURT, IN WHICH DISCRIMINATORY STATE ACTION WAS
IDENTIFIED.  BASED ON THESE CASES, ROBINSON V. FLORIDA, 378 U.S. 153,
156; ANDERSON V. MARTIN, 375 U.S. 399; BARROWS V. JACKSON, 346 U.S.
249, 254; MCCABE V. ATCHISON, TOPEKA & SANTA FE R. CO., 235 U.S. 151,
IT CONCLUDED THAT A PROHIBITED STATE INVOLVEMENT COULD BE FOUND "EVEN
WHERE THE STATE CAN BE CHARGED WITH ONLY ENCOURAGING," RATHER THAN
COMMANDING DISCRIMINATION.  ALSO OF PARTICULAR INTEREST TO THE COURT
WAS MR. JUSTICE STEWART'S CONCURRENCE IN BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715, 726, WHERE IT WAS SAID THAT THE DELAWARE
COURTS HAD CONSTRUED AN EXISTING DELAWARE STATUTE AS "AUTHORIZING"
RACIAL DISCRIMINATION IN RESTAURANTS AND THAT THE STATUTE WAS THEREFORE
INVALID.  TO THE CALIFORNIA COURT "THE INSTANT CASE PRESENTS AN
UNDENIABLY ANALOGOUS SITUATION" WHEREIN THE STATE HAD TAKEN AFFIRMATIVE
ACTION DESIGNED TO MAKE PRIVATE DISCRIMINATIONS LEGALLY POSSIBLE. 
DISCRIMINATION WAS RESTRICTED "TO ONE WHEREIN IT IS ENCOURAGED, WITHIN
THE MEANING OF THE CITED DECISIONS"; SEC. 26 WAS LEGISLATIVE ACTION
"WHICH AUTHORIZED PRIVATE DISCRIMINATION" AND MADE THE STATE "AT LEAST
A PARTNER IN THE INSTANT ACT OF DISCRIMINATION  ...  ."  THE COURT
COULD "CONCEIVE OF NO OTHER PURPOSE FOR AN APPLICATION OF SECTION 26
ASIDE FROM AUTHORIZING THE PERPETRATION OF A PURPORTED PRIVATE
DISCRIMINATION  ...  ."  THE JUDGMENT OF THE CALIFORNIA COURT WAS THAT
SEC. 26 UNCONSTITUTIONALLY INVOLVES THE STATE IN RACIAL DISCRIMINATIONS
AND IS THEREFORE INVALID UNDER THE FOURTEENTH AMENDMENT. 

THERE IS NO SOUND REASON FOR REJECTING THIS JUDGMENT.  PETITIONERS
CONTEND THAT THE CALIFORNIA COURT HAS MISCONSTRUED THE FOURTEENTH
AMENDMENT SINCE THE REPEAL OF ANY STATUTE PROHIBITING RACIAL
DISCRIMINATION, WHICH IS CONSTITUTIONALLY PERMISSIBLE, MAY BE SAID TO
"AUTHORIZE" AND "ENCOURAGE" DISCRIMINATION BECAUSE IT MAKES LEGALLY
PERMISSIBLE THAT WHICH WAS FORMERLY PROSCRIBED.  BUT, AS WE UNDERSTAND
THE CALIFORNIA COURT, IT DID NOT POSIT A CONSTITUTIONAL VIOLATION ON
THE MERE REPEAL OF THE UNRUH AND RUMFORD ACTS.  IT DID NOT READ EITHER
OUR CASES OR THE FOURTEENTH AMENDMENT AS ESTABLISHING AN AUTOMATIC
CONSTITUTIONAL BARRIER TO THE REPEAL OF AN EXISTING LAW PROHIBITING
RACIAL DISCRIMINATIONS IN HOUSING; NOR DID THE COURT RULE THAT A STATE
MAY NEVER PUT IN STATUTORY FORM AN EXISTING POLICY OF NEUTRALITY WITH
RESPECT TO PRIVATE DISCRIMINATIONS.  WHAT THE COURT BELOW DID WAS FIRST
TO REJECT THE NOTION THAT THE STATE WAS REQUIRED TO HAVE A STATUTE
PROHIBITING RACIAL DISCRIMINATIONS IN HOUSING.  SECOND, IT HELD THE
INTENT OF SEC. 26 WAS TO AUTHORIZE PRIVATE RACIAL DISCRIMINATIONS IN
THE HOUSING MARKET, TO REPEAL THE UNRUH AND RUMFORD ACTS AND TO CREATE
A CONSTITUTIONAL RIGHT TO DISCRIMINATE ON RACIAL GROUNDS IN THE SALE
AND LEASING OF REAL PROPERTY.  HENCE, THE COURT DEALT WITH SEC. 26 AS
THOUGH IT EXPRESSLY AUTHORIZED AND CONSTITUTIONALIZED THE PRIVATE RIGHT
TO DISCRIMINATE.  THIRD, THE COURT ASSESSED THE ULTIMATE IMPACT OF SEC.
26 IN THE CALIFORNIA ENVIRONMENT AND CONCLUDED THAT THE SECTION WOULD
ENCOURAGE AND SIGNIFICANTLY INVOLVE THE STATE IN PRIVATE RACIAL
DISCRIMINATION CONTRARY TO THE FOURTEENTH AMENDMENT. 

THE CALIFORNIA COURT COULD VERY REASONABLY CONCLUDE THAT SEC. 26
WOULD AND DID HAVE WIDER IMPACT THAN A MERE REPEAL OF EXISTING
STATUTES.  SECTION 26 MENTIONED NEITHER THE UNRUH NOR RUMFORD ACT IN SO
MANY WORDS.  INSTEAD, IT ANNOUNCED THE CONSTITUTIONAL RIGHT OF ANY
PERSON TO DECLINE TO SELL OR LEASE HIS REAL PROPERTY TO ANYONE TO WHOM
HE DID NOT DESIRE TO SELL OR LEASE.  UNRUH AND RUMFORD WERE THEREBY PRO
TANTO REPEALED.  BUT THE SECTION STRUCK MORE DEEPLY AND MORE WIDELY. 
PRIVATE DISCRIMINATIONS IN HOUSING WERE NOW NOT ONLY FREE FROM RUMFORD
AND UNRUH BUT THEY ALSO ENJOYED A FAR DIFFERENT STATUS THAN WAS TRUE
BEFORE THE PASSAGE OF THOSE STATUTES.  THE RIGHT TO DISCRIMINATE,
INCLUDING THE RIGHT TO DISCRIMINATE ON RACIAL GROUNDS, WAS NOT EMBODIED
IN THE STATE'S BASIC CHARTER, IMMUNE FROM LEGISLATIVE, EXECUTIVE, OR
JUDICIAL REGULATION AT ANY LEVEL OF THE STATE GOVERNMENT.  THOSE
PRACTICING RACIAL DISCRIMINATIONS NEED NO LONGER RELY SOLELY ON THEIR
PERSONAL CHOICE.  THEY COULD NOW INVOKE EXPRESS CONSTITUTIONAL
AUTHORITY, FREE FROM CENSURE OR INTERFERENCE OF ANY KIND FROM OFFICIAL
SOURCES.  ALL INDIVIDUALS, PARTNERSHIPS, CORPORATIONS AND OTHER LEGAL
ENTITIES, AS WELL AS THEIR AGENTS AND REPRESENTATIVES, COULD NOW
DISCRIMINATE WITH RESPECT TO THEIR RESIDENTIAL REAL PROPERTY, WHICH IS
DEFINED AS ANY INTEREST IN REAL PROPERTY OF ANY KIND OR QUALITY,
"IRRESPECTIVE OF HOW OBTAINED OR FINANCED," AND SEEMINGLY IRRESPECTIVE
OF THE RELATIONSHIP OF THE STATE TO SUCH INTERESTS IN REAL PROPERTY. 
ONLY THE STATE IS EXCLUDED WITH RESPECT TO PROPERTY OWNED BY IT.
(FN7) 

THIS COURT HAS NEVER ATTEMPTED THE "IMPOSSIBLE TASK" OF FORMULATING AN
INFALLIBLE TEST FOR DETERMINING WHETHER THE STATE "IN ANY OF ITS
MANIFESTATIONS" HAS BECOME SIGNIFICANTLY INVOLVED IN PRIVATE
DISCRIMINATIONS.  "ONLY BY SIFTING FACTS AND WEIGHING CIRCUMSTANCES" ON
A CASE-BY-CASE BASIS CAN A "NONOBVIOUS INVOLVEMENT OF THE STATE IN
PRIVATE CONDUCT BE ATTRIBUTED ITS TRUE SIGNIFICANCE."  BURTON V.
WILMINGTON PARKING AUTHORITY, 365 U.S. 715, 722.  HERE THE CALIFORNIA
COURT, ARMED AS IT WAS WITH THE KNOWLEDGE OF THE FACTS AND
CIRCUMSTANCES CONCERNING THE PASSAGE AND POTENTIAL IMPACT OF SEC. 26,
AND FAMILIAR WITH THE MILIEU IN WHICH THAT PROVISION WOULD OPERATE, HAS
DETERMINED THAT THE PROVISION WOULD INVOLVE THE STATE IN PRIVATE RACIAL
DISCRIMINATIONS TO AN UNCONSTITUTIONAL DEGREE.  WE ACCEPT THIS HOLDING
OF THE CALIFORNIA COURT. 

THE ASSESSMENT OF SEC. 26 BY THE CALIFORNIA COURT IS SIMILAR TO WHAT
THIS COURT HAS DONE IN APPRAISING STATE STATUTES OR OTHER OFFICIAL
ACTIONS IN OTHER CONTEXTS.  IN MCCABE V. ATCHISON, TOPEKA & SANTA FE R.
CO., 235 U.S. 151, THE COURT DEALT WITH A STATUTE WHICH, AS CONSTRUED
BY THE COURT, AUTHORIZED CARRIERS TO PROVIDE CARS FOR WHITE PERSONS BUT
NOT FOR NEGROES.  THOUGH DISMISSAL OF THE COMPLAINT ON A PROCEDURAL
GROUND WAS AFFIRMED, THE COURT MADE IT CLEAR THAT SUCH A STATUTE WAS
INVALID UNDER THE FOURTEENTH AMENDMENT BECAUSE A CARRIER REFUSING EQUAL
SERVICE TO NEGROES WOULD BE "ACTING IN THE MATTER UNDER THE AUTHORITY
OF A STATE LAW."  THIS WAS NOTHING LESS THAN CONSIDERING A PERMISSIVE
STATE STATUTE AS AN AUTHORIZATION TO DISCRIMINATE AND AS SUFFICIENT
STATE ACTION TO VIOLATE THE FOURTEENTH AMENDMENT IN THE CONTEXT OF THAT
CASE.  SIMILARLY, IN NIXON V. CONDON, 286 U.S. 73, (FN8) THE COURT WAS
FACED WITH A STATUTE EMPOWERING THE EXECUTIVE COMMITTEE OF A POLITICAL
PARTY TO PRESCRIBE THE QUALIFICATIONS OF ITS MEMBERS FOR VOTING OR FOR
OTHER PARTICIPATION, BUT CONTAINING NO DIRECTIONS WITH RESPECT TO THE
EXERCISE OF THAT POWER.  THIS WAS AUTHORITY WHICH THE COMMITTEE
OTHERWISE MIGHT NOT HAVE HAD AND WHICH WAS USED BY THE COMMITTEE TO BAR
NEGROES FROM VOTING IN PRIMARY ELECTIONS.  REPOSING THIS POWER IN THE
EXECUTIVE COMMITTEE WAS SAID TO INSINUATE THE STATE INTO SELF
REGULATORY, DECISION-MAKING SCHEME OF THE VOLUNTARY ASSOCIATION; THE
EXERCISE OF THE POWER WAS VIEWED AS AN EXPRESSION OF STATE AUTHORITY
CONTRARY TO THE FOURTEENTH AMENDMENT.    IN BURTON V. WILMINGTON
PARKING AUTHORITY, 365 U.S. 715, THE OPERATOR-LESSEE OF A RESTUARANT
LOCATED IN A BUILDING OWNED BY THE STATE AND OTHERWISE OPERATED FOR
PUBLIC PURPOSES, REFUSED SERVICE TO NEGROES.  ALTHOUGH THE STATE
NEITHER COMMANDED NOR EXPRESSLY AUTHORIZED OR ENCOURAGED THE
DISCRIMINATIONS, THE STATE HAD 'ELECTED TO PLACE ITS POWER, PROPERTY
AND PRESTIGE BEHIND THE ADMITTED DISCRIMINATION" AND BY "ITS INACTION
...  HAS  ...  MADE ITSELF A PARTY TO THE REFUSAL OF SERVICE  ...  "
WHICH THEREFORE COULD NOT BE CONSIDERED THE PURELY PRIVATE CHOICE OF
THE RESTAURANT OPERATOR. 

IN PETERSON V. CITY OF GREENVILLE, 373 U.S. 244, AND IN ROBINSON V.
FLORIDA, 378 U.S. 153, THE COURT DEALT WITH STATE STATUTES OR
REGULATIONS REQUIRING, AT LEAST IN SOME RESPECTS, SEGREGATION IN
FACILITIES AND SERVICES IN RESTAURANTS.  THESE OFFICIAL PROVISIONS,
ALTHOUGH OBVIOUSLY UNCONSTITUTIONAL AND UNENFORCEABLE, WERE DEEMED IN
THEMSELVES SUFFICIENT TO DISENTITLE THE STATE TO PUNISH, AS
TRESPASSERS, NEGROES WHO HAD BEEN REFUSED SERVICE IN THE RESTAURANTS. 
IN NEITHER CASE WAS ANY PROOF REQUIRED THAT THE RESTAURANT OWNER HAD
ACTUALLY BEEN INFLUENCED BY THE STATE STATUTE OR REGULATION.  FINALLY,
IN LOMBARD V. LOUISIANA, 373 U.S. 267, THE COURT INTERPRETED PUBLIC
STATEMENTS BY NEW ORLEANS CITY OFFICIALS AS ANNOUNCING THAT THE CITY
WOULD NOT PERMIT NEGROES TO SEEK DESEGREGATED SERVICE IN RESTAURANTS. 
BECAUSE THE STATEMENTS WERE DEEMED TO HAVE AS MUCH COERCIVE POTENTIAL
AS THE ORDINANCE IN THE PETERSON CASE, THE COURT TREATED THE CITY AS
THOUGH IT HAD ACTUALLY ADOPTED AN ORDINANCE FORBIDDING DESEGREGATED
SERVICE IN PUBLIC RESTAURANTS. 

NONE OF THESE CASES SQUARELY CONTROLS THE CASE WE NOW HAVE BEFORE US.
BUT THEY DO ILLUSTRATE THE RANGE OF SITUATIONS IN WHICH DISCRIMINATORY
STATE ACTION HAS BEEN IDENTIFIED.  THEY DO EXEMPLIFY THE NECESSITY FOR
A COURT TO ASSESS THE POTENTIAL IMPACT OF OFFICIAL ACTION IN
DETERMINING WHETHER THE STATE HAS SIGNIFICANTLY INVOLVED ITSELF WITH
INVIDIOUS DISCRIMINATIONS.  HERE WE ARE DEALING WITH A PROVISION WHICH
DOES NOT JUST REPEAL AN EXISTING LAW FORBIDDING PRIVATE RACIAL
DISCRIMINATIONS.  SECTION 26 WAS INTENDED TO AUTHORIZE, AND DOES
AUTHORIZE, RACIAL DISCRIMINATION IN THE HOUSING MARKET.  THE RIGHT TO
DISCRIMINATE IS NOW ONE OF THE BASIC POLICIES OF THE STATE.  THE
CALIFORNIA SUPREME COURT BELIEVES THAT THE SECTION WILL SIGNIFICANTLY
ENCOURAGE AND INVOLVE THE STATE IN PRIVATE DISCRIMINATIONS.  WE HAVE
BEEN PRESENTED WITH NO PERSUASIVE CONSIDERATIONS INDICATING THAT THESE
JUDGMENTS SOULD BE OVERTURNED.  AFFIRMED. 

FN1  SECTION 1 OF THE FOURTEENTH AMENDMENT PROVIDES AS FOLLOWS: 

"ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES AND SUBJECT TO
THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE
STATE WHEREIN THEY RESIDE.  NO STATE SHALL MAKE OR ENFORCE ANY LAW
WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE
UNITED STATES; NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY,
OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS." 

FN2  THE FOLLOWING IS THE FULL TEXT OF SEC. 26:  "NEITHER THE STATE
NOR ANY SUBDIVISION OR AGENCY THEREOF SHALL DENY, LIMIT OR ABRIDGE,
DIRECTLY OR INDIRECTLY, THE RIGHT OF ANY PERSON, WHO IS WILLING OR
DESIRES TO SELL, LEASE OR RENT ANY PART OR ALL OF HIS REAL PROPERTY, TO
DECLINE TO SELL, LEASE OR RENT SUCH PROPERTY TO SUCH PERSON OR PERSONS
AS HE, IN HIS ABSOLUTE DISCRETION, CHOOSES. 

"'PERSON' INCLUDES INDIVIDUALS, PARTNERSHIPS, CORPORATIONS AND OTHER
LEGAL ENTITIES AND THEIR AGENTS OR REPRESENTATIVES BUT DOES NOT INCLUDE
THE STATE OR ANY SUBDIVISION THEREOF WITH RESPECT TO THE SALE, LEASE OR
RENTAL OF PROPERTY OWNED BY IT. 

"'REAL PROPERTY' CONSISTS OF ANY INTEREST IN REAL PROPERTY OF ANY
KIND OR QUALITY, PRESENT OR FUTURE, IRRESPECTIVE OF HOW OBTAINED OR
FINANCED, WHICH IS USED, DESIGNED, CONSTRUCTED, ZONED OR OTHERWISE
DEVOTED TO OR LIMITED FOR RESIDENTIAL PURPOSES WHETHER AS A SINGLE
FAMILY DWELLING OR AS A DWELLING FOR TWO OR MORE PERSONS OR FAMILIES
LIVING TOGETHER OR INDEPENDENTLY OF EACH OTHER. 

"THIS ARTICLE SHALL NOT APPLY TO THE OBTAINING OF PROPERTY BY EMINENT
DOMAIN PURSUANT TO ARTICLE I, SECTIONS 14 AND 14 1/2 OF THIS
CONSTITUTION, NOR TO THE RENTING OR PROVIDING OF ANY ACCOMMODATIONS FOR
LODGING PURPOSES BY A HOTEL, MOTEL OR OTHER SIMILAR PUBLIC PLACE
ENGAGED IN FURNISHING LODGING TO TRANSIENT GUESTS. 

"IF ANY PART OR PROVISION OF THIS ARTICLE, OR THE APPLICATION THEREOF
TO ANY PERSON OR CIRCUMSTANCE, IS HELD INVALID, THE REMAINDER OF THE
ARTICLE, INCLUDING THE APPLICATION OF SUCH PART OR PROVISION TO OTHER
PERSONS OR CIRCUMSTANCES, SHALL NOT BE AFFECTED THEREBY AND SHALL
CONTINUE IN FULL FORCE AND EFFECT.  TO THIS END THE PROVISIONS OF THIS
ARTICLE ARE SEVERABLE."  (CAL. CONST., ART. I, SEC. 26). 

FN3  CAL. CIV. CODE SECS. 51 AND 52 PROVIDE IN PART AS FOLLOWS: 

"ALL PERSONS WITHIN THE JURISDICTION OF THIS STATE ARE FREE AND
EQUAL, AND NO MATTER WHAT THEIR RACE, COLOR, RELIGION, ANCESTRY, OR
NATIONAL ORIGIN ARE ENTITLED TO THE FULL AND EQUAL ACCOMMODATIONS,
ADVANTAGES, FACILITIES, PRIVILEGES, OR SERVICES IN ALL BUSINESS
ESTABLISHMENTS OF EVERY KIND WHATSOEVER. 

     *         *         *         *         * 

"WHOEVER DENIES, OR WHO AIDS, OR INCITES SUCH DENIAL, OR WHOEVER
MAKES ANY DISCRIMINATION, DISTINCTION OR RESTRICTION ON ACCOUNT OF
COLOR, RACE, RELIGION, ANCESTRY, OR NATIONAL ORIGIN, CONTRARY TO THE
PROVISIONS OF SECTION 51 OF THIS CODE, IS LIABLE FOR EACH AND EVERY
SUCH OFFENSE FOR THE ACTUAL DAMAGES, AND TWO HUNDRED FIFTY DOLLARS
($250) IN ADDITION THERETO, SUFFERED BY ANY PERSON DENIED THE RIGHTS
PROVIDED IN SECTION 51 OF THIS CODE." 

FN4  THE TRIAL COURT CONSIDERED THE CASE TO BE CONTROLLED BY ABSTRACT
INVESTMENT CO. V. HUTCHINSON, 204 CAL. APP. 2D 242, 22 CAL. RPTR.  309,
WHICH IN TURN PLACED MAJOR RELIANCE ON SHELLEY V. KRAEMER, 334 U.S. 1,
AND BARROWS V. JACKSON, 346 U.S. 249. 

FN5  RESPONDENTS' COMPLAINT WAS DISMISSED WITHOUT PREJUDICE BASED ON
THE TRIAL COURT'S FINDING THAT PETITIONER WOULD NOT SEEK EVICTION
WITHOUT THE DECLARATORY RELIEF HE HAD REQUESTED. 

FN6  SEE N. 3, SUPRA. 

FN7  IN ADDITION TO THE CASE WE NOW HAVE BEFORE US, TWO OTHER CASES
DECIDED THE SAME DAY BY THE CALIFORNIA SUPREME COURT ARE INSTRUCTIVE
CONCERNING THE RANGE AND IMPACT OF ART. I, SEC. 26, OF THE CALIFORNIA
CONSTITUTION.  IN HILL V. MILLER, 413 P.2D 852, ON REHEARING, 64 CAL.
2D 757, 415 P.2D 33, A NEGRO TENANT SUED TO RESTRAIN AN EVICTION FROM A
LEASED, SINGLE-FAMILY DWELLING.  THE NOTICE TO QUIT SERVED BY THE OWNER
HAD EXPRESSLY RECITED: "THE SOLE REASON FOR THIS NOTICE IS THAT I HAVE
ELECTED TO EXERCISE THE RIGHT CONFERRED UPON ME BY ARTICLE I, SECTION
26, CALIFORNIA CONSTITUTION, TO RENT SAID PREMISES TO MEMBERS OF THE
CAUCASIAN RACE."  ALTHOUGH THE CALIFORNIA COURT HAD INVALIDATED SEC.
26, THE COURT RULED AGAINST THE NEGRO PLAINTIFF BECAUSE THE UNRUH ACT
DID NOT COVER SINGLE-FAMILY DWELLINGS.  THUS THE LANDLORD'S RELIANCE ON
SEC. 26 WAS SUPERFLUOUS. 

IN PEYTON V. BARRINGTON PLAZA CORP., 64 CAL. 2D 880, 413 P.2D 849, A
NEGRO PHYSICIAN SUED TO REQUIRE THE DEFENDANT CORPORATION TO LEASE HIM
AN APARTMENT IN BARRINGTON PLAZA WHICH WAS DESCRIBED IN THE OPINION AS
FOLLOWS: 

"THAT DEFENDANT RECEIVED A $17,000,000 LOW INTEREST RATE LOAN UNDER
THE NATIONAL HOUSING ACT TO CONSTRUCT BARRINGTON PLAZA; THAT SUCH SUM
REPRESENTS 90 PERCENT OF THE CONSTRUCTION COSTS OF THE PLAZA; THAT THE
DEVELOPMENT IS A PART OF THE URBAN REDEVELOPMENT PROGRAM UNDERTAKEN BY
THE CITY OF LOS ANGELES; THAT BARRINGTON PLAZA IS THE LARGEST APARTMENT
DEVELOPMENT IN THE WESTERN UNITED STATES, PROVIDING APARTMENT LIVING
FOR 2,500 PEOPLE; THAT IT INCLUDES MANY RETAIL SHOPS AND PROFESSIONAL
SERVICES WITHIN ITS SELF-CONTAINED FACILITIES; THAT IT PROVIDES A FALL
OUT SHELTER, COMPLETELY STOCKED BY THE FEDERAL GOVERNMENT WITH
EMERGENCY SUPPLIES; THAT THE PLAZA REPLACED PRIVATE HOMES OF BOTH
CAUCASIANS AND NON-CAUCASIANS; THAT THE CITY EFFECTED ZONING CHANGES TO
ACCOMMODATE THE DEVELOPMENT; THAT THE DEFENDANT'S SECURITIES WERE SOLD,
ITS CONSTRUCTION CONTRACTS WERE LET, ITS BUILDING PERMITS WERE ISSUED
AND ITS SHOPS AND PROFESSIONAL SERVICES ESTABLISHED ALL PURSUANT TO
STATE OR LOCAL APPROVAL, COOPERATION AND AUTHORITY." 

THE DEFENDANT DEFENDED THE ACTION AND MOVED FOR JUDGMENT ON THE
PLEADINGS BASED ON ART. I, SEC. 26, OF THE CALIFORNIA CONSTITUTION. 
THE MOTION WAS GRANTED BUT THE JUDGMENT WAS REVERSED BASED ON THE
DECISION IN MULKEY V. REITMAN. 

FN8  THIS CASE WAS A SEQUEL TO NIXON V. HERNDON, 273 U.S. 536, WHICH
OUTLAWED STATUTORY DISQUALIFICATION OF NEGROES FROM VOTING IN PRIMARY
ELECTIONS. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I ADD A WORD TO INDICATE THE
DIMENSIONS OF OUR PROBLEM. 

THIS IS NOT A CASE AS SIMPLE AS THE ONE WHERE A MAN WITH A BICYCLE OR
A CAR OR A STOCK CERTIFICATE OR EVEN A LOG CABIN ASSERTS THE RIGHT TO
SELL IT TO WHOMSOEVER HE PLEASES, EXCLUDING ALL OTHERS WHETHER THEY BE
NEGRO, CHINESE, JAPANESE, RUSSIANS, CATHOLICS, BAPTISTS, OR THOSE WITH
BLUE EYES.  WE DEAL HERE WITH A PROBLEM IN THE REALM OF ZONING, SIMILAR
TO THE ONE WE HAD IN SHELLEY V. KRAEMER, 334 U.S. 1, WHERE WE STRUCK
DOWN RESTRICTIVE COVENANTS. 

THOSE COVENANTS ARE ONE DEVICE WHEREBY A NEIGHBORHOOD IS KEPT "WHITE"
OR "CAUCASIAN" AS THE DOMINANT INTERESTS DESIRE.  PROPOSITION 14 IN THE
SETTING OF OUR MODERN HOUSING PROBLEM IS ONLY ANOTHER DEVICE OF THE
SAME CHARACTER. 

REAL ESTATE BROKERS AND MORTGAGE LENDERS ARE LARGELY DEDICATED TO THE
MAINTENANCE OF SEGREGATED COMMUNITIES.  (FN1)  REALTORS COMMONLY
BELIEVE IT IS UNETHICAL TO SELL OR RENT TO A NEGRO IN A PREDOMINANTLY
WHITE OR ALL-WHITE NEIGHBORHOOD, (FN2) AND MORTGAGE LENDERS THROW THEIR
WEIGHT ALONGSIDE SEGREGATED COMMUNITIES, REJECTING APPLICATIONS BY
MEMBERS OF A MINORITY GROUP WHO TRY TO BREAK THE WHITE PHALANX SAVE AND
UNLESS THE NEIGHBORHOOD IS IN PROCESS OF CONVERSION INTO A MIXED OR A
NEGRO COMMUNITY.  (FN3)  WE ARE TOLD BY THE COMMISSION ON CIVIL
RIGHTS: 

"PROPERTY OWNERS' PREJUDICES ARE REFLECTED, MAGNIFIED, AND SOMETIMES
EVEN INDUCED BY REAL ESTATE BROKERS, THROUGH WHOM MOST HOUSING CHANGES
HANDS.  ORGANIZED BROKERS HAVE, WITH FEW EXCEPTIONS, FOLLOWED THE
PRINCIPLE THAT ONLY A 'HOMOGENEOUS' NEIGHBORHOOD ASSURES ECONOMIC
SOUNDNESS.  THEIR VIEWS IN SOME CASES ARE SO VIGOROUSLY EXPRESSED AS TO
DISCOURAGE PROPERTY OWNERS WHO WOULD OTHERWISE BE CONCERNED ONLY WITH
THE COLOR OF A PURCHASER'S MONEY, AND NOT WITH THAT OF HIS SKIN  ...  .
(FN4) 

     *         *       *         *         * 

"THE FINANCIAL COMMUNITY, UPON WHICH MORTGAGE FINANCING - AND HENCE
THE BULK OF HOME PURCHASING AND HOME BUILDING - DEPENDS, ALSO ACTS TO A
LARGE EXTENT ON THE PREMISE THAT ONLY A HOMOGENEOUS NEIGHBORHOOD CAN
OFFER AN ECONOMICALLY SOUND INVESTMENT.  FOR THIS REASON, PLUS THE FEAR
OF OFFENDING THEIR OTHER CLIENTS, MANY MORTGAGE-LENDING INSTITUTIONS
REFUSE TO PROVIDE HOME FINANCING FOR HOUSES IN A 'MIXED' NEIGHBORHOOD. 
THE PERSISTENT STEREOTYPES OF CERTAIN MINORITY GROUPS AS POOR CREDIT
RISKS ALSO BLOCK THE FLOW OF CREDIT, ALTHOUGH THESE STEREOTYPES HAVE
OFTEN BEEN PROVED UNJUSTIFIED."  HOUSING, U.S. COMMISSION ON CIVIL
RIGHTS 2-3 (1961). 

THE BUILDERS JOIN  IN THE SAME SCHEME:  (FN5) 

"  ...  PRIVATE BUILDERS OFTEN ADOPT WHAT THEY BELIEVE ARE THE VIEWS
OF THOSE TO WHOM THEY EXPECT TO SELL AND OF THE BANKS UPON WHOSE CREDIT
THEIR OWN OPERATIONS DEPEND.  IN SHORT, AS THE COMMISSION ON RACE AND
HOUSING HAS CONCLUDED, 'IT IS THE REAL ESTATE BROKERS, BUILDERS, AND
MORTGAGE FINANCE INSTITUTIONS, WHICH TRANSLATE PREJUDICE INTO
DISCRIMINATORY ACTION.'  THUS, AT EVERY LEVEL OF THE PRIVATE HOUSING
MARKET MEMBERS OF MINORITY GROUPS MEET MUTUALLY REINFORCING AND OFTEN
UNBREAKABLE BARRIERS OF REJECTION." 

PROPOSITION 14 IS A FORM OF SOPHISTICATED DISCRIMINATION (FN6)
WHEREBY THE PEOPLE OF CALIFORNIA HARNESS THE ENERGIES OF PRIVATE GROUPS
TO DO INDIRECTLY WHAT THEY CANNOT UNDER OUR DECISIONS (FN7) ALLOW THEIR
GOVERNMENT TO DO. 

GEORGE A. MCCANSE, CHAIRMAN OF THE LEGISLATIVE COMMITTEE ON THE TEXAS
REAL ESTATE ASSOCIATION, WHILE GIVING HIS VIEWS ON TITLE IV OF THE
PROPOSED CIVIL RIGHTS ACT OF 1966 (H.R. 14765), WHICH WOULD PROHIBIT
DISCRIMINATION IN HOUSING BY PROPERTY OWNERS, REAL ESTATE BROKERS, AND
OTHERS ENGAGED IN THE SALE, RENTAL OR FINANCING OF HOUSING, STATED THAT
HE WARNED GROUPS TO WHICH HE SPOKE OF "THE GRAVE DANGERS INHERENT IN
ANY TYPE OF LEGISLATION THAT WOULD ERODE AWAY THE RIGHTS THAT GO WITH
THE OWNERSHIP OF PROPERTY."  (FN8)  HE OINTED OUT THAT: 

"EACH TIME WE CITIZENS OF THIS COUNTRY LOSE ANY OF THE RIGHTS THAT GO
WITH THE OWNERSHIP OF PROPERTY, WE ARE MOVING THAT MUCH CLOSER TO A
CENTRALIZED GOVERNMENT IN WHICH ULTIMATELY THE RIGHT TO OWN PROPERTY
WOULD BE DENIED."  (FN9) 

THAT APPARENTLY IS A COMMON VIEW.  IT OVERLOOKS SEVERAL THINGS. 
FIRST, THE RIGHT TO OWN OR LEASE PROPERTY IS ALREADY DENIED TO MANY
SOLELY BECAUSE OF THE PIGMENT OF THEIR SKIN; THEY ARE, INDEED, UNDER
THE CONTROL OF A FEW WHO DETERMINE WHERE AND HOW THE COLORED PEOPLE
SHALL LIVE AND WHAT THE NATURE OF OUR CITIES WILL BE.  SECOND, THE
AGENCIES THAT ARE ZONING THE CITIES ALONG RACIAL LINES ARE STATE
LICENSEES. 

ZONING IS A STATE AND MUNICIPAL FUNCTION.  SEE EUCLID V. AMBLER CO.,
272 U.S. 365, 389 ET SEQ; BERMAN V. PARKER, 348 U.S. 26, 34-35.  WHEN
THE STATE LEAVES THAT FUNCTION TO PRIVATE AGENCIES OR INSTITUTIONS
WHICH ARE LICENSEES AND WHICH PRACTICE RACIAL DISCRIMINATION AND ZONE
OUR CITIES INTO WHITE AND BLACK BELTS OR WHITE AND BLACK GHETTOES, IT
SUFFERS A GOVERNMENTAL FUNCTION TO BE PERFORMED UNDER PRIVATE AUSPICES
IN A WAY THE STATE ITSELF MAY NOT ACT.  THE PRESENT CASE IS THEREFORE
KIN TO TERRY V. ADAMS, 345 U.S. 461, 466, WHERE A STATE ALLOWED A
PRIVATE GROUP (KNOWN AS THE JAYBIRD ASSOCIATION, WHICH WAS THE DOMINANT
POLITICAL GROUP IN THE COUNTY ELECTIONS) TO PERFORM AN ELECTORAL
FUNCTION IN DEROGATION OF THE RIGHTS OF NEGROES UNDER THE FIFTEENTH
AMENDMENT.    LEAVING THE ZONING FUNCTION TO GROUPS WHICH PRACTICE
RACIAL DISCRIMINATION AND ARE LICENSED BY THE STATES CONSTITUTES STATE
ACTION IN THE NARROWEST SENSE IN WHICH SHELLEY V. KRAEMER, SUPRA, CAN
BE CONSTRUED.  FOR AS NOTED BY MR. JUSTICE BLACK IN BELL V. MARYLAND,
378 U.S. 226, 329 (DISSENTING), RESTRICTIVE COVENANTS "CONSTITUTED A
RESTRAINT ON ALIENATION OF PROPERTY, SOMETIMES IN PERPETUITY, WHICH, IF
VALID, WAS IN REALITY THE EQUIVALENT OF AND HAD THE EFFECT OF STATE AND
MUNICIPAL ZONING LAWS, ACCOMPLISHING THE SAME KIND OF RACIAL
DISCRIMINATION AS IF THE STATE HAD PASSED A STATUTE INSTEAD OF LEAVING
THIS OBJECTIVE TO BE ACCOMPLISHED BY A SYSTEM OF PRIVATE CONTRACTS,
ENFORCED BY THE STATE." 

UNDER CALIFORNIA LAW NO PERSON MAY "ENGAGE IN THE BUSINESS, ACT IN
THE CAPACITY OF, ADVERTISE OR ASSUME TO ACT AS A REAL ESTATE BROKER OR
A REAL ESTATE SALESMAN WITHIN THIS STATE WITHOUT FIRST OBTAINING A REAL
ESTATE LICENSE."  CALIF. BUS.  & PROF. CODE SEC. 10130.  THEIR
LICENSEES ARE DESIGNATED TO SERVE THE PUBLIC.  THEIR LICENSES ARE NOT
RESTRICTED, AND COULD NOT BE RESTRICTED, TO EFFECTUATE A POLICY OF
SEGREGATION.  THAT WOULD BE STATE ACTION THAT IS BARRED BY THE
FOURTEENTH AMENDMENT.  THERE IS NO DIFFERENCE, AS I SEE IT, BETWEEN A
STATE AUTHORIZING A LICENSEE TO PRACTICE RACIAL DISCRIMINATION AND A
STATE, WITHOUT ANY EXPRESS AUTHORIZATION OF THAT KIND NEVERTHELESS
LAUNCHING AND COUNTENANCING THE OPERATION OF A LICENSING SYSTEM IN AN
ENVIRONMENT WHERE THE WHOLE WEIGHT OF THE SYSTEM IS ON THE SIDE OF
DISCRIMINATION.  IN THE LATTER SITUATION THE STATE IS IMPLIEDLY
SANCTIONING WHAT IT MAY NOT DO SPECIFICALLY. 

IF WE WERE IN A DOMAIN EXCLUSIVELY PRIVATE, WE WOULD HAVE DIFFERENT
PROBLEMS.  BUT URBAN HOUSING IS IN THE PUBLIC DOMAIN AS EVIDENCED NOT
ONLY BY THE ZONING PROBLEMS PRESENTED BUT BY THE VAST SCHEMES OF PUBLIC
FINANCING WITH WHICH THE STATES AND THE NATION HAVE BEEN EXTENSIVELY
INVOLVED IN RECENT YEARS.  URBAN HOUSING IS CLEARLY MARKED WITH THE
PUBLIC INTEREST.  URBAN HOUSING, LIKE RESTAURANTS, INNS, AND CARRIERS
(BELL V. MARYLAND, 378 U.S. 226, 253-255, SEPARATE OPINION), OR LIKE
TELEPHONE COMPANIES, DRUGSTORES, OR HOSPITALS, IS AFFECTED WITH A
PUBLIC INTEREST IN THE HISTORIC AND CLASSICAL SENSE.  SEE LOMBARD V.
LOUISIANA, 373 U.S. 267, 275-278 (CONCURRING OPINION). 

I REPEAT WHAT WAS STATED BY HOLT, C.J., IN LANE V. COTTON, 12 MOD.
472, 484 (1701): 

"WHEREVER ANY SUBJECT TAKES UPON HIMSELF A PUBLIC TRUST FOR THE
BENEFIT OF THE REST OF HIS FELLOW-SUBJECTS, HE IS EO IPSO BOUND TO
SERVE THE SUBJECT IN ALL THE THINGS THAT ARE WITHIN THE REACH AND
COMPREHENSION OF SUCH AN OFFICE, UNDER PAIN OF AN ACTION AGAINST HIM
...  .  IF ON THE ROAD A SHOE FALL OFF MY HORSE, AND I COME TO A SMITH
TO HAVE ONE PUT ON, AND THE SMITH REFUSE TO DO IT, AN ACTION WILL LIE
AGAINST HIM, BECAUSE HE HAS MADE PROFESSION OF A TRADE WHICH IS FOR THE
PUBLIC GOOD, AND HAS THEREBY EXPOSED AND VESTED AN INTEREST OF HIMSELF
IN ALL THE KING'S SUBJECTS THAT WILL EMPLOY HIM IN THE WAY OF HIS
TRADE.  IF AN INNKEEPER REFUSE TO ENTERTAIN A GUEST WHERE HIS HOUSE IS
NOT FULL, AN ACTION WILL LIE AGAINST HIM, AND SO AGAINST A CARRIER, IF
HIS HORSES BE NOT LOADED, AND HE REFUSE TO TAKE A PACKET PROPER TO BE
SENT BY A CARRIER." 

SINCE THE REAL ESTATE BROKERAGE BUSINESS IS ONE THAT CAN BE AND IS
STATE-REGULATED AND SINCE IT IS STATE-LICENSED, IT MUST BE DEDICATED,
LIKE THE TELEPHONE COMPANIES AND THE CARRIERS AND THE HOTELS AND
MOTELS, TO THE REQUIREMENTS OF SERVICE TO ALL WITHOUT DISCRIMINATION -
A STANDARD THAT IN ITS MODERN SETTING IS CONDITIONED BY THE DEMANDS OF
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

AND TO THOSE WHO SAY THAT PROPOSITION 14 REPRESENTS THE WILL OF THE
PEOPLE OF CALIFORNIA, ONE CAN ONLY REPLY: 

"WHEREVER THE REAL POWER IN A GOVERNMENT LIES, THERE IS THE DANGER OF
OPPRESSION.  IN OUR GOVERNMENTS THE REAL POWER LIES IN THE MAJORITY OF
THE COMMUNITY, AND THE INVASION OF PRIVATE RIGHTS IS CHIEFLY TO BE
APPREHENDED, NOT FROM ACTS OF GOVERNMENT CONTRARY TO THE SENSE OF ITS
CONSTITUENTS, BUT FROM ACTS IN WHICH THE GOVERNMENT IS THE MERE
INSTRUMENT OF THE MAJOR NUMBER OF THE CONSTITUENTS.  THIS IS A TRUTH OF
GREAT IMPORTANCE, BUT NOT YET SUFFICIENTLY ATTENDED TO  ...  ."  5
WRITINGS OF JAMES MADISON 272 (HUNT ED. 1904). 

FN1  CIVIL RIGHTS U.S.A., HOUSING IN WASHINGTON, D.C., U.S.
COMMISSION ON CIVIL RIGHTS 12-15 (1962). 

FN2  ID., 12-13. 

FN3  ID., 14-15. 

FN4  AS THE HANNAH COMMISSION SAID: 

"AREA HOUSING PATTERNS ARE SHARPLY DEFINED ALONG RACIAL LINES.  MOST
MEMBERS OF THE HOUSING INDUSTRY APPEAR TO RESPECT THEM.  ALTHOUGH IT IS
UNLIKELY THAT THESE PATTERNS ARE DETERMINED BY FORMAL AGREEMENT, IT IS
PROBABLE THAT THEY ARE MAINTAINED BY TACIT UNDERSTANDINGS."  ID., 15. 

FN5  HOUSING, U.S. COMMISSION ON CIVIL RIGHTS 3 (1961). 

FN6  FREEDOM TO THE FREE, CENTURY OF EMANCIPATION, REPORT TO THE
PRESIDENT, U.S. COMMISSION ON CIVIL RIGHTS 96 (1963). 

FN7  CITY OF RICHMOND V. DEANS, 281 U.S. 704. 

FN8  HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE
JUDICIARY, 89TH CONG., 2D SESS., SER.  16, 1639 (1966). 

FN9  IBID. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK, MR. JUSTICE CLARK, AND
MR. JUSTICE STEWART JOIN, DISSENTING. 

I CONSIDER THAT THIS DECISION, WHICH CUTS DEEPLY INTO STATE POLITICAL
PROCESSES, IS SUPPORTED NEITHER BY ANYTHING "FOUND" BY THE SUPREME
COURT OF CALIFORNIA NOR BY ANY OF OUR PAST CASES DECIDED UNDER THE
FOURTEENTH AMENDMENT.  IN MY VIEW TODAY'S HOLDING, SALUTARY AS ITS
RESULT MAY APPEAR AT FIRST BLUSH, MAY IN THE LONG RUN ACTUALLY SERVE TO
HANDICAP PROGRESS IN THE EXTREMELY DIFFICULT FIELD OF RACIAL CONCERNS. 
I MUST RESPECTFULLY DISSENT. 

THE FACTS OF THIS CASE ARE SIMPLE AND UNDISPUTED.  THE LEGISLATURE OF
THE STATE OF CALIFORNIA HAS IN THE LAST DECADE ENACTED A NUMBER OF
STATUTES RESTRICTING THE RIGHT OF PRIVATE LANDOWNERS TO DISCRIMINATE ON
THE BASIS OF SUCH FACTORS AS RACE IN THE SALE OR RENTAL OF PROPERTY. 
THESE LAWS AROUSED CONSIDERABLE OPPOSITION, CAUSING CERTAIN GROUPS TO
ORGANIZE THEMSELVES AND TO TAKE ADVANTAGE OF PROCEDURES EMBODIED IN THE
CALIFORNIA CONSTITUTION PERMITTING A "PROPOSITION" TO BE PRESENTED TO
THE VOTERS FOR A CONSTITUTIONAL AMENDMENT.  "PROPOSITION 14" WAS THUS
PUT BEFORE THE ELECTORATE IN THE 1964 ELECTION AND WAS ADOPTED BY A
VOTE OF 4,526,460 TO 2,395,747.  THE AMENDMENT, ART. I, SEC. 26 OF THE
STATE CONSTITUTION, READS IN RELEVANT PART AS FOLLOWS: 

"NEITHER THE STATE NOR ANY SUBDIVISION OR AGENCY THEREOF SHALL DENY,
LIMIT OR ABRIDGE, DIRECTLY OR INDIRECTLY, THE RIGHT OF ANY PERSON, WHO
IS WILLING OR DESIRES TO SELL, LEASE OR RENT ANY PART OR ALL OF HIS
REAL PROPERTY, TO DECLINE TO SELL, LEASE OR RENT SUCH PROPERTY TO SUCH
PERSON OR PERSONS AS HE, IN HIS ABSOLUTE DISCRETION, CHOOSES."  (FN1) 

I AM WHOLLY AT A LOSS TO UNDERSTAND HOW THIS STRAIGHT-FORWARD
EFFECTUATION OF A CHANGE IN THE CALIFORNIA CONSTITUTION CAN BE DEEMED A
VIOLATION OF THE FOURTEENTH AMENDMENT, THUS RENDERING SEC. 26 VOID AND
PETITIONERS' REFUSAL TO RENT THEIR PROPERTIES TO RESPONDENTS, BECAUSE
OF THEIR RACE, ILLEGAL UNDER PRIOR STATE LAW.  THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, WHICH FORBIDS A STATE TO USE ITS
AUTHORITY TO FOSTER DISCRIMINATION BASED ON SUCH FACTORS AS RACE,
TAKAHASHI V. FISH & GAME COMM'N, 334 U.S. 410; BROWN V. BOARD OF
EDUCATION, 347 U.S. 483; GOSS V. BOARD OF EDUCATION, 373 U.S. 683, DOES
NOT UNDERTAKE TO CONTROL PURELY PERSONAL PREJUDICES AND PREDILECTIONS,
AND INDIVIDUALS ACTING ON THEIR OWN ARE LEFT FREE TO DISCRIMINATE ON
RACIAL GROUNDS IF THEY ARE SO MINDED, CIVIL RIGHTS CASES, 109 U.S. 3. 
BY THE SAME TOKEN, THE FOURTEENTH AMENDMENT DOES NOT REQUIRE OF STATES
THE PASSAGE OF LAWS PREVENTING SUCH PRIVATE DISCRIMINATION, ALTHOUGH IT
DOES NOT OF COURSE DISABLE THEM FROM ENACTING SUCH LEGISLATION IF THEY
WISH. 

IN THE CASE AT HAND CALIFORNIA, ACTING THROUGH THE INITIATIVE AND
REFERENDUM, HAS DECIDED TO REMAIN "NEUTRAL" IN THE REALM OF PRIVATE
DISCRIMINATION AFFECTING THE SALE OR RENTAL OF PRIVATE RESIDENTIAL
PROPERTY; IN SUCH TRANSACTIONS PRIVATE OWNERS ARE NOW FREE TO ACT IN A
DISCRIMINATORY MANNER PREVIOUSLY FORBIDDEN TO THEM.  IN SHORT, ALL THAT
HAS HAPPENED IS THAT CALIFORNIA HAS EFFECTED A PRO TANTO REPEAL OF ITS
PRIOR STATUTES FORBIDDING PRIVATE DISCRIMINATION.  THIS RUNS NO MORE
AFOUL OF THE FOURTEENTH AMENDMENT THAN WOULD HAVE CALIFORNIA'S FAILURE
TO PASS ANY SUCH ANTIDISCRIMINATION STATUTES IN THE FIRST INSTANCE. 
THE FACT THAT SUCH REPEAL WAS ALSO ACCOMPANIED BY A CONSTITUTIONAL
PROHIBITION AGAINST FUTURE ENACTMENT OF SUCH LAWS BY THE CALIFORNIA
LEGISLATURE CANNOT WELL BE THOUGHT TO AFFECT, FROM A FEDERAL
CONSTITUTIONAL STANDPOINT, THE VALIDITY OF WHAT CALIFORNIA HAS DONE. 
THE FOURTEENTH AMENDMENT DOES NOT REACH SUCH STATE CONSTITUTIONAL
ACTION ANY MORE THAN IT DOES A SIMPLE LEGISLATIVE REPEAL OF LEGISLATION
FORBIDDING PRIVATE DISCRIMINATION. 

I DO NOT THINK THE COURT'S OPINION REALLY DENIES ANY OF THESE
FUNDAMENTAL CONSTITUTIONAL PROPOSITIONS.  RATHER IT ATTEMPTS TO ESCAPE
THEM BY RESORTING TO ARGUMENTS WHICH APPEAR TO ME TO BE ENTIRELY ILL
FOUNDED. 

 I. 

THE COURT ATTEMPTS TO FIT SEC. 26 WITHIN THE COVERAGE OF THE EQUAL
PROTECTION CLAUSE BY CHARACTERIZING IT AS IN EFFECT AN AFFIRMATIVE CALL
TO RESIDENTS OF CALIFORNIA TO DISCRIMINATE.  THE MAIN DIFFICULTY WITH
THIS VIEWPOINT IS THAT IT DEPENDS UPON A CHARACTERIZATION OF SEC.  26
THAT CANNOT FAIRLY BE MADE.  THE PROVISION IS NEUTRAL ON ITS FACE, AND
IT IS ONLY BY IN EFFECT ASSERTING THAT THIS REQUIREMENT OF PASSIVE
OFFICIAL NEUTRALITY IS CAMOUFLAGE THAT THE COURT IS ABLE TO REACH ITS
CONCLUSION.  IN DEPICTING THE PROVISION AS TANTAMOUNT TO ACTIVE STATE
ENCOURAGEMENT OF DISCRIMINATION THE COURT ESSENTIALLY RELIES ON THE
FACT THAT THE CALIFORNIA SUPREME COURT SO CONCLUDED.  IT IS SAID THAT
THE FINDINGS OF THE HIGHEST COURT OF CALIFORNIA AS TO THE MEANING AND
IMPACT OF THE ENACTMENT ARE ENTITLED TO GREAT WEIGHT.  I AGREE OF
COURSE, THAT FINDINGS OF FACT BY A STATE COURT SHOULD BE GIVEN GREAT
WEIGHT, BUT THIS FAMILIAR PROPOSITION HARDLY AIDS THE COURT'S HOLDING
IN THIS CASE. 

THERE IS NO DISAGREEMENT WHATEVER BUT THAT SEC. 26 WAS MEANT TO
NULLIFY CALIFORNIA'S FAIR-HOUSING LEGISLATION AND THUS TO REMOVE FROM
PRIVATE RESIDENTIAL PROPERTY TRANSACTIONS THE STATE-CREATED IMPEDIMENT
UPON FREEDOM OF CHOICE.  THERE WERE NO DISPUTED ISSUES OF FACT AT ALL,
AND INDEED THE CALIFORNIA SUPREME COURT NOTED AT THE OUTSET OF ITS
OPINION THAT "IN THE TRIAL COURT PROCEEDINGS ALLEGATIONS OF THE
COMPLAINT WERE NOT FACTUALLY CHALLENGED, NO EVIDENCE WAS INTRODUCED,
AND THE ONLY MATTER PLACED IN ISSUE WAS THE LEGAL SUFFICIENCY OF THE
ALLEGATIONS."  64 CAL. 2D 529, 531-532, 413 P.2D 825, 827.  THERE WAS
NO FINDING, FOR EXAMPLE, THAT THE DEFENDANTS' ACTIONS WERE ANYTHING BUT
THE PRODUCT OF THEIR OWN PRIVATE CHOICE.  INDEED, SINCE THE ALLEGED
RACIAL DISCRIMINATION THAT FORMS THE BASIS FOR THE REITMAN REFUSAL TO
RENT ON RACIAL GROUNDS OCCURRED IN 1963, IT IS NOT POSSIBLE TO CONTEND
THAT SEC. 26 IN ANY WAY INFLUENCED THIS PARTICULAR ACT.  THERE WERE NO
FINDINGS AS TO THE GENERAL EFFECT OF SEC. 26.  THE COURT DECLARES THAT
THE CALIFORNIA COURT "HELD THE INTENT OF SEC. 26 WAS TO AUTHORIZE
PRIVATE RACIAL DISCRIMINATIONS IN THE HOUSING MARKET  ...  ," ANTE, P.
376, BUT THERE IS NO SUPPORTING FACT IN THE RECORD FOR THIS
CHARACTERIZATION.  MOREOVER, THE GROUNDS WHICH PROMPT LEGISLATORS OR
STATE VOTERS TO REPEAL A LAW DOES, NOT BY WHAT THOSE WHO VOTED FOR IT
WANTED IT TO DO, AND IT MUST NOT BE FORGOTTEN THAT THE FOURTEENTH
AMENDMENT DOES NOT COMPEL A STATE TO PUT OR KEEP ANY PARTICULAR LAW
ABOUT RACE ON ITS BOOKS.  THE AMENDMENT ONLY FORBIDS A STATE TO PASS OR
KEEP IN EFFECT LAWS DISCRIMINATING ON ACCOUNT OF RACE.  CALIFORNIA HAS
NOT DONE THIS. 

A STATE ENACTMENT, PARTICULARLY ONE THAT IS SIMPLY PERMISSIVE OF
PRIVATE DECISION-MAKING RATHER THAN COERCIVE AND ONE THAT HAS BEEN
ADOPTED IN THIS MOST DEMOCRATIC OF PROCESSES, SHOULD NOT BE STRUCK DOWN
BY THE JUDICIARY UNDER THE EQUAL PROTECTION CLAUSE WITHOUT PERSUASIVE
EVIDENCE OF AN INVIDIOUS PURPOSE OR EFFECT.  THE ONLY "FACTUAL" MATTER
RELIED ON BY THE MAJORITY OF THE CALIFORNIA SUPREME COURT WAS THE
CONTEXT IN WHICH PROPOSITION 14 WAS ADOPTED, NAMELY, THAT SEVERAL
STRONG ANTIDISCRIMINATION ACTS HAD BEEN PASSED BY THE LEGISLATURE AND
OPPOSED BY MANY OF THOSE WHO SUCCESSFULLY LED THE MOVEMENT FOR ADOPTION
OF PROPOSITION 14 BY POPULAR REFERENDUM.  THESE CIRCUMSTANCES, AND
THESE ALONE, THE CALIFORNIA COURT HELD, MADE SEC. 26 UNLAWFUL UNDER
THIS COURT'S CASES INTERPRETING THE EQUAL PROTECTION CLAUSE.  THIS, OF
COURSE, IS NOTHING BUT A LEGAL CONCLUSION AS TO FEDERAL CONSTITUTIONAL
LAW, THE CALIFORNIA SUPREME COURT NOT HAVING RELIED IN ANY WAY UPON THE
STATE CONSTITUTION.  ACCEPTING ALL THE SUPPOSITIONS UNDER WHICH THE
STATE COURT ACTED, I CANNOT SEE THAT ITS CONCLUSION IS ENTITLED TO ANY
SPECIAL WEIGHT IN THE DISCHARGE OF OUR OWN RESPONSIBILITIES.  PUT IN
ANOTHER WAY, I CANNOT TRANSFORM THE CALIFORNIA COURT'S CONCLUSION OF
LAW INTO FINDING OF FACT THAT THE STATE THROUGH THE ADOPTION OF SEC. 26
IS ACTIVELY PROMOTING RACIAL DISCRIMINATION.  IT SEEMS TO ME MANIFEST
THAT THE STATE COURT DECISION RESTED ENTIRELY ON WHAT THAT COURT
CONCEIVED TO BE THE COMPULSION OF THE FOURTEENTH AMENDMENT, NOT ON ANY
FACT-FINDING BY THE STATE COURTS. 
  II. 

THERE IS NO QUESTION THAT THE ADOPTION OF SEC. 26, REPEALING THE
FORMER STATE ANTIDISCRIMINATION LAWS AND PROHIBITING THE ENACTMENT OF
SUCH STATE LAWS IN THE FUTURE, CONSTITUTED "STATE ACTION" WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT.  THE ONLY ISSUE IS WHETHER THIS
PROVISION IMPERMISSIBLY DEPRIVES ANY PERSON OF EQUAL PROTECTION OF THE
LAWS.  AS A STARTING POINT, IT IS CLEAR THAT ANY STATUTE REQUIRING
UNJUSTIFIED DISCRIMINATORY TREATMENT IS UNCONSTITUTIONAL.  E.G., NIXON
V. HERNDON, 273 U.S. 536; BROWN V. BOARD OF EDUCATION, SUPRA; PETERSON
V. CITY OF GREENVILLE, 373 U.S. 244.  AND IT IS NO LESS CLEAR THAT THE
EQUAL PROTECTION CLAUSE BARS AS WELL DISCRIMINATORY GOVERNMENTAL
ADMINISTRATION OF A STATUTE FAIR ON ITS FACE.  E.G., YICK WO V.
HOPKINS, 118 U.S. 356.  THIS CASE FITS WITHIN NEITHER OF THESE TWO
CATEGORIES:  SECTION 26 IS BY ITS TERMS INOFFENSIVE, AND ITS PROVISIONS
REQUIRE NO AFFIRMATIVE GOVERNMENTAL ENFORCEMENT OF ANY SORT.  A THIRD
CATEGORY OF EQUAL-PROTECTION CASES, CONCEDEDLY MORE DIFFICULT TO
CHARACTERIZE, STANDS FOR THE PROPOSITION THAT WHEN GOVERNMENTAL
INVOLVEMENT IN PRIVATE DISCRIMINATION REACHES A LEVEL AT WHICH THE
STATE CAN BE HELD RESPONSIBLE FOR THE SPECIFIC ACT OF PRIVATE
DISCRIMINATION, THE STRICTURES OF THE FOURTEENTH AMENDMENT COME INTO
PLAY.  IN DEALING WITH THIS CLASS OF CASES, THE INQUIRY HAS BEEN FRAMED
AS WHETHER THE STATE HAS BECOME "A JOINT PARTICIPANT IN THE CHALLENGED
ACTIVITY, WHICH, ON THAT ACCOUNT, CANNOT BE CONSIDERED TO HAVE BEEN SO
'PURELY PRIVATE' AS TO FALL WITHOUT THE SCOPE OF THE FOURTEENTH
AMENDMENT."  BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715,
725. 

GIVEN THESE LATTER CONTOURS OF THE EQUAL-PROTECTION DOCTRINE, THE
ASSESSMENT OF PARTICULAR CASES IS OFTEN TROUBLESOME, AS THE COURT
ITSELF ACKNOWLEDGES.  ANTE, PP. 378-379.  HOWEVER, THE PRESENT CASE
DOES NOT SEEM TO ME EVEN TO APPROACH THESE PERIPHERAL SITUATIONS IN
WHICH THE QUESTION OF STATE INVOLVMENT GIVES RISE TO DIFFICULTIES. 
SEE, E.G., EVANS V. NEWTON, 382 U.S. 296; LOMBARD V. LOUISIANA, 373
U.S. 267.  THE CORE OF THE COURT'S OPINION IS THAT SEC. 26 IS OFFENSIVE
TO THE FOURTEENTH AMENDMENT BECAUSE IT EFFECTIVELY ENCOURAGES PRIVATE
DISCRIMINATION.  BY FOCUSING ON "ENCOURAGEMENT" THE COURT, I FEAR, IS
FORGING A SLIPPERY AND UNFORTUNATE CRITERION BY WHICH TO MEASURE THE
CONSTITUTIONALITY OF A STATUTE SIMPLY PERMISSIVE IN PURPOSE AND EFFECT,
AND INOFFENSIVE ON ITS FACE. 

IT IS TRUE THAT STANDARDS IN THIS AREA HAVE NOT BEEN DEFINITELY
FORMULATED, AND THAT ACTS OF DISCRIMINATION HAVE BEEN INCLUDED WITHIN
THE COMPASS OF THE EQUAL PROTECTION CLAUSE NOT MERELY WHEN THEY WERE
COMPELLED BY A STATE STATUTE OR OTHER GOVERNMENTAL PRESSURES, BUT ALSO
WHEN THEY WERE SAID TO BE "INDUCED" OR "AUTHORIZED" BY THE STATE.  MOST
OF THESE CASES, HOWEVER, CAN BE APPROACHED IN TERMS OF THE IMPACT AND
EXTEND OF AFFIRMATIVE STATE GOVERNMENTAL ACTIVITIES, E.G., THE ACTION
OF A SHERIFF, LOMBARD V. LOUISIANA, SUPRA; THE OFFICIAL SUPERVISION
OVER A PARK, EVANS V. NEWTON, SUPRA; A JOINT VENTURE WITH A LESSEE IN A
MUNICIPALLY OWNED BUILDING, BURTON V. WILMINGTON PARKING AUTHORITY,
SUPRA.  (FN2)  IN SITUATIONS SUCH AS THESE THE FOCUS HAS BEEN ON
POSITIVE STATE COOPERATION OR PARTNERSHIP IN AFFIRMATIVELY PROMOTED
ACTIVITIES, AN INVOLVEMENT THAT COULD HAVE BEEN AVOIDED.  HERE, IN
CONTRAST, WE HAVE ONLY THE STRAIGHT-FORWARD ADOPTION OF A NEUTRAL
PROVISION RESTORING TO THE SPHERE OF FREE CHOICE, LEFT UNTOUCHED BY THE
FOURTEENTH AMENDMENT, PRIVATE BEHAVIOR WITHIN A LIMITED AREA OF THE
RACIAL PROBLEM.  THE DENIAL OF EQUAL PROTECTION EMERGES ONLY FROM THE
CONCLUSION REACHED BY THE COURT THAT THE IMPLEMENTATION OF A NEW POLICY
OF GOVERNMENTAL NEUTRALITY, EMBODIED IN A CONSTITUTIONAL PROVISION AND
REPLACING A FORMER POLICY OF ANTIDISCRIMINATION, HAS THE EFFECT OF
LENDING ENCOURAGEMENT TO THOSE WHO WISH TO DISCRIMINATE.  IN THE
CONTEXT OF THE ACTUAL FACTS OF THE CASE, THIS CONCLUSION APPEARS TO ME
TO STATE ONLY A TRUISM:  PEOPLE WHO WANT TO DISCRIMINATE BUT WERE
PREVIOUSLY FORBIDDEN TO DO SO BY STATE LAW ARE NOW LEFT FREE BECAUSE
THE STATE HAS CHOSEN TO HAVE NO LAW ON THE SUBJECT AT ALL.  OBVIOUSLY
WHENEVER THERE IS A CHANGE IN THE LAW IT WILL HAVE RESULTED FROM THE
CONCERTED ACTIVITY OF THOSE WHO DESIRE THE CHANGE, AND ITS ENACTMENT
WILL ALLOW THOSE SUPPORTING THE LEGISLATION TO PURSUE THEIR PRIVATE
GOALS. 

A MOMENT OF THOUGHT WILL REVEAL THE FAR-REACHING POSSIBILITIES OF THE
COURT'S NEW DOCTRINE, WHICH I AM SURE THE COURT DOES NOT INTEND.  EVERY
ACT OF PRIVATE DISCRIMINATION IS EITHER FORBIDDEN BY STATE LAW OR
PERMITTED BY IT.  THERE CAN BE LITTLE DOUBT THAT SUCH PERMISSIVENESS -
WHETHER BY EXPRESS CONSTITUTIONAL OR STATUTORY PROVISION, OR IMPLICIT
IN THE COMMON LAW - TO SOME EXTENT "ENCOURAGES" THOSE WHO WISH TO
DISCRIMINATE TO DO SO.  UNDER THIS THEORY "STATE ACTION" IN THE FORM OF
LAWS THAT DO NOTHING MORE THAN PASSIVELY PERMIT PRIVATE DISCRIMINATION
COULD BE SAID TO TINGE ALL PRIVATE DISCRIMINATION WITH THE TAINT OF
UNCONSTITUTIONAL STATE ENCOURAGEMENT. 

THIS TYPE OF ALLEGED STATE INVOLVEMENT, SIMPLY EVINCING A REFUSAL TO
INVOLVE ITSELF AT ALL, IS OF COURSE VERY DIFFERENT FROM THAT
ILLUSTRATED IN SUCH CASES AS LOMBARD, PETERSON, EVANS, AND BURTON,
SUPRA, WHERE THE COURT FOUND ACTIVE INVOLVEMENT OF STATE AGENCIES AND
OFFICIALS IN SPECIFIC ACTS OF DISCRIMINATION.  IT IS ALSO QUITE
DIFFERENT FROM CASES IN WHICH A STATE ENACTMENT COULD BE SAID TO HAVE
THE OBVIOUS PURPOSE OF FOSTERING DISCRIMINATION.  ANDERSON V. MARTIN,
375 U.S. 399.  I BELIEVE THE STATE ACTION REQUIRED TO BRING THE
FOURTEENTH AMENDMENT INTO OPERATION MUST BE AFFIRMATIVE AND PURPOSEFUL,
ACTIVELY FOSTERING DISCRIMINATION.  ONLY IN SUCH A CASE IS OSTENSIBLY
"PRIVATE" ACTION MORE PROPERLY LABELED "OFFICIAL."  I DO NOT BELIEVE
THAT THE MERE ENACTMENT OF SEC. 26, ON THE SHOWING MADE HERE, FALLS
WITHIN THIS CLASS OF CASES. 

                                        III. 

I THINK THAT THIS DECISION IS NOT ONLY CONSTITUTIONALLY UNSOUND, BUT
IN ITS PRACTICAL POTENTIALITIES SHORT-SIGHTED.  OPPONENTS OF STATE
ANTIDISCRIMINATION STATUTES ARE NOW IN A POSITION TO ARGUE THAT SUCH
LEGISLATION SHOULD BE DEFEATED BECAUSE, IF ENACTED, IT MAY BE
UNREPEALABLE.  MORE FUNDAMENTALLY, THE DOCTRINE UNDERLYING THIS
DECISION MAY HAMPER, IF NOT PRECLUDE, ATTEMPTS TO DEAL WITH THE
DELICATE AND TROUBLESOME PROBLEMS OF RACE RELATIONS THROUGH THE
LEGISLATIVE PROCESS.  THE LINES THAT HAVE BEEN AND MUST BE DRAWN IN
THIS AREA, FRAUGHT AS IT IS WITH HUMAN SENSIBILITIES AND FRAILTIES OF
WHATEVER RACE OR CREED, ARE DIFFICULT ONES.  THE DRAWING OF THEM
REQUIRES UNDERSTANDING, PATIENCE, AND COMPROMISE, AND IS BEST DONE BY
LEGISLATURES RATHER THAN BY COURTS.  WHEN LEGISLATION IN THIS FIELD IS
UNSUCCESSFUL THERE SHOULD BE WIDE OPPORTUNITIES FOR LEGISLATIVE
AMENDMENT, AS WELL AS FOR CHANGE THROUGH SUCH PROCESSES AND THE POPULAR
INITIATIVE AND REFERENDUM.  THIS DECISION, I FEAR, MAY INHIBIT SUCH
FLEXIBILITY.  HERE THE ELECTORATE ITSELF OVERWHELMINGLY WISHED TO
OVERRULE AND CHECK ITS OWN LEGISLATURE ON A MATTER LEFT OPEN BY THE
FEDERAL CONSTITUTION.  BY REFUSING TO ACCEPT THE DECISION OF THE PEOPLE
OF CALIFORNIA, AND BY CONTRIVING A NEW AND ILL-DEFINED CONSTITUTIONAL
CONCEPT TO ALLOW FEDERAL JUDICIAL INTERFERENCE, I THINK THE COURT HAS
TAKEN TO ITSELF POWERS AND RESPONSIBILITIES LEFT ELSEWHERE BY THE
CONSTITUTION. 

I BELIEVE THE SUPREME COURT OF CALIFORNIA MISAPPLIED THE FOURTEENTH
AMENDMENT, AND WOULD REVERSE ITS JUDGMENTS, AND REMAND THE CASE FOR
FURTHER APPROPRIATE PROCEEDINGS. 

FN1  "REAL PROPERTY" IS DEFINED BY SEC. 26 AS "ANY INTEREST IN REAL
PROPERTY OF ANY KIND OR QUALITY, PRESENT OR FUTURE, IRRESPECTIVE OF HOW
OBTAINED OR FINANCED, WHICH IS USED, DESIGNED, CONSTRUCTED, ZONED OR
OTHERWISE DEVOTED TO OR LIMITED FOR RESIDENTIAL PURPOSES WHETHER AS A
SINGLE FAMILY DWELLING OR AS A DWELLING FOR TWO OR MORE PERSONS OR
FAMILIES LIVING TOGETHER OR INDEPENDENTLY OF EACH OTHER." 

FN2  IN MCCABE V. ATCHISON, TOPEKA & SANTA FE R. CO., 235 U.S. 151,
CITED BY THE COURT, THE COMPLAINT OF THE NEGRO APPELLANTS WAS HELD TO
HAVE BEEN PROPERLY DISMISSED ON THE GROUND THAT ITS ALLEGATIONS WERE
"ALTOGETHER TOO VAGUE AND INDEFINITE," ID., AT 163.  IN DICTUM THE
COURT STATED THAT WHERE A STATE REGULATED THE FACILITIES OF A COMMON
CARRIER IT COULD NOT CONSTITUTIONALLY ENACT A STATUTE THAT DID NOT
COMPLY WITH THE "SEPARATE BUT EQUAL" DOCTRINE.  WHATEVER THE
IMPLICATIONS OF THE FOURTEENTH AMENDMENT MAY BE AS TO COMMON CARRIERS,
COMPARE THE OPINIONS OF GOLDBERG, J., CONCURRING, AND BLACK, J.,
DISSENTING, IN BELL V. MARYLAND, 378 U.S. 226, 286, 318, NOTHING IN
MCCABE WOULD APPEAR TO HAVE MUCH RELEVANCE TO THE PROBLEM BEFORE US
TODAY. 

NEITHER IS THERE FORCE IN THE COURT'S RELIANCE ON NIXON V. CONDON,
286 U.S. 73, A VOTING CASE DECIDED UNDER THE FIFTEENTH AS WELL AS THE
FOURTEENTH AMENDMENT. 
..END :






















AMERICAN TRUCKING V. A.,T.&S.F.R. CO. 387 U.S. 397 


NO. 57.  ARGUED APRIL 13 AND 17, 1967.  - DECIDED MAY 29, 1967.* - 244
F. SUPP. 955, REVERSED.  *TOGETHER WITH NO. 59, NATIONAL AUTOMOBILE
TRANSPORTERS ASSOCIATION OF DETROIT V. ATCHISON, TOPEKA & SANTA FE
RAILWAY CO. ET AL., AND NO. 60, UNITED STATES ET AL. V. ATCHISON,
TOPEKA & SANTA FE RAILWAY CO. ET AL., ALSO ON APPEAL FROM THE SAME
COURT. 


FACED WITH THE EXPLOSIVE GROWTH OF TRAILER-ON-FLATCAR (TOFC OR
"PIGGYBACK") SERVICE THE INTERSTATE COMMERCE COMMISSION (ICC)
INSTITUTED A GENERAL INVESTIGATION OF ALL ASPECTS OF THAT SERVICE. 
FOLLOWING HEARINGS THE ICC PROMULGATED RULES PROVIDING THAT (1) "TOFC
SERVICE, IF OFFERED BY A RAIL CARRIER THROUGH ITS OPEN-TARIFF
PUBLICATIONS, SHALL BE MADE AVAILABLE" AT THE SAME CHARGE TO ALL OTHER
PERSONS (RULE 2), AND (2) MOTOR AND WATER CARRIERS, AND FREIGHT
FORWARDERS, "MAY UTILIZE TOFC SERVICE IN THE PERFORMANCE OF ALL OR ANY
PORTION OF THEIR AUTHORIZED SERVICE THROUGH THE USE OF OPEN-TARIFF TOFC
RATES PUBLISHED BY A RAIL CARRIER" (RULE 3).  IN A SUIT BROUGHT BY
RAILROADS AND FREIGHT FORWARDERS A THREE-JUDGE DISTRICT COURT SET THESE
RULES ASIDE.  HELD: 

1.  "IN LIGHT OF THE MANDATE OF THE NATIONAL TRANSPORTATION POLICY,
THE COMMISSION HAD AUTHORITY DERIVED FROM THE COMMON-CARRIER
OBLIGATIONS OF THE RAILROADS AS REFLECTED IN SECS 1(4), 2, AND 3(1) OF
THE INTERSTATE COMMERCE ACT TO PROMULGATE RULE 2 REQUIRING THAT ANY
RAILROAD OFFERING TOFC SERVICE THROUGH ITS OPEN-TARIFF PUBLICATIONS
MUST MAKE THAT SERVICE AVAILABLE 'TO ANY PERSON' ON NONDISCRIMINATORY
TERMS."  PP. 406-413. 

(A)  "THE FACT THAT THE PERSON TENDERING TRAFFIC IS A COMPETITOR DOES
NOT PERMIT THE RAILROAD TO DISCRIMINATE AGAINST HIM OR IN HIS FAVOR." 
PP. 406-408. 

(B)  "IN SEATRAIN (UNITED STATES V. PENNSYLVANIA R. CO., 323 U.S. 612
(1945)), THIS COURT EMPHATICALLY REJECTED THE ANALYSIS UPON WHICH THE
DISTRICT COURT HERE ESSENTIALLY BASED ITS POSITION - THAT SINCE THE ACT
REGULATES RAIL, MOTOR, AND WATER CARRIERS SEPARATELY, IN TITLES I, II,
AND III, THE COMMISSION MAY NOT COMPEL THE MUTUAL FURNISHING OF
SERVICES AND FACILITIES OTHER THAN AS EXPRESSLY DIRECTED."  PP. 408
411. 

(C)  THE PROVISO TO SEC 3(1) OF THE ACT "CERTAINLY WAS NOT INTENDED
...  TO GRANT LICENSE TO DISCRIMINATE AGAINST TRAFFIC OFFERED TO THE
RAILROAD BY ANOTHER CARRIER."  "THE PROVISO MEANS THAT THE PROHIBITION
AGAINST 'UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE' IS NOT TO BE
CONSTRUED TO FORBID PRACTICES, OTHERWISE LAWFUL, SOLELY BECAUSE THEY
OPERATE TO THE PREJUDICE OF ANOTHER CARRIER."  PP. 411-412. 

2.  "THERE IS NO ADEQUATE REASON TO CONSTRUE THE ACT SO AS TO DEPRIVE
THE COMMISSION OF THE POWER TO AUTHORIZE THE CARRIERS BY MOTOR VEHICLE
TO USE TOFC WHEN THAT SERVICE IS OFFERED BY RAILROADS TO THE PUBLIC ON
OPEN TARIFF."  PP. 413-420. 

(A)  THE DISTRICT COURT AND THE APPELLEES CONCEDE THAT A MOTOR
CARRIER MAY UTILIZE TOFC WITH THE CONSENT OF THE RAILROAD CONCERNED. 
BECAUSE SUCH CONSENSUAL UTILIZATION OF OPEN-TARIFF TOFC DIFFERS
IMPORTANTLY FROM A VOLUNTARY MOTOR-RAIL THROUGH ROUTE AND JOINT RATE
ARRANGEMENT UNDER SEC 216(C) OF THE ACT, THE EXCEPTION FOR CONSENSUAL
TOFC UNDERMINES THE ARGUMENT THAT MOTOR CARRIERS ARE NOT AUTHORIZED
UNDER THEIR FRANCHISE TO SUBSTITUTE RAIL TRANSPORTATION FOR
TRANSPORTATION BY ROAD.  THERE ARE OTHER CIRCUMSTANCES, TOO, IN WHICH A
MOTOR CARRIER MAY USE THE SERVICES OF ANOTHER MODE OF TRANSPORTATION. 
"WE MAY PROPERLY ASSUME, THEREFORE, THAT THE ACT CANNOT BE CONSTRUED TO
REQUIRE THAT THE TRUCKER MUST ALWAYS TRANSPORT ITS CARGO EXCLUSIVELY BY
ROAD."  PP. 413-415. 

(B)  ALTHOUGH SOME PRIOR ICC DECISIONS HAVE HELD THAT RAILROAD
CONCURRENCE IS ESSENTIAL TO MOTOR CARRIER USE OF TOFC SERVICE, "THE
COMMISSION, FACED WITH NEW DEVELOPMENTS OR IN LIGHT OF RECONSIDERATION
OF THE RELEVANT FACTS AND ITS MANDATE, MAY ALTER ITS PAST
INTERPRETATION AND OVERTURN PAST ADMINISTRATIVE RULINGS AND PRACTICE." 
PP. 415-416. 

(C)  ALTHOUGH "THE ATTENTION OF THE CONGRESS HAD BEEN CALLED TO THE
NEED FOR ACTION TO SECURE THE RELIEF WHICH THE COMMISSION SUBSEQUENTLY
GRANTED IN ITS RULES," THE RESULTING LEGISLATIVE HISTORY DOES NOT
DEMONSTRATE "A CONGRESSIONAL CONSTRUCTION OF THE MEANING OF THE STATUTE
...  ."  NOR IS THE ICC'S ADVOCACY OF LEGISLATION "EVIDENCE OF AN
ADMINISTRATIVE INTERPRETATION OF THE ACT WHICH SHOULD TILT THE SCALES"
AGAINST THE ICC'S CONCLUSION IN THIS CASE AS TO ITS AUTHORITY.  PP. 416
418. 

(D)  "THE MERE FACT THAT THE TRUCKERS, BY REASON OF THE COMMISSION'S
RULES 2 AND 3, MAY UTILIZE OPEN-TARIFF TOFC SERVICE, WHERE OFFERED
GENERALLY, CERTAINLY DOES NOT CONVERT THEIR ACTIVITY INTO FREIGHT
FORWARDING, IN CONFLICT WITH THE ACT."  PP. 418-420. 

3.  "THE CONTROLLING FACT OF THE MATTER IS THAT ALL PIGGYBACK SERVICE
IS, BY ITS ESSENTIAL NATURE, BIMODAL  ...  .  IN THE ABSENCE OF
CONGRESSIONAL DIRECTION, THERE IS NO BASIS FOR DENYING TO THE ICC THE
POWER TO ALLOCATE AND REGULATE TRANSPORTATION THAT PARTAKES OF BOTH
ELEMENTS; AND THERE IS NO BASIS WHATEVER FOR DENYING TO THE COMMISSION
THE POWER TO CARRY OUT ITS RESPONSIBILITIES UNDER THE NATIONAL
TRANSPORTATION POLICY  ...  ."  PP. 420-422. 

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. V. ATCHISON, TOPEKA & SANTA
FE RAILWAY CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THESE THREE CASES PRESENT THE FOLLOWING QUESTION:  DOES THE
INTERSTATE COMMERCE COMMISSION HAVE AUTHORITY TO PROMULGATE RULES
PROVIDING (1) THAT RAILROADS WHICH OFFER TRAILER-ON-FLATCAR (TOFC OR
"PIGGYBACK") SERVICE TO THE PUBLIC UNDER OPEN-TARIFF PUBLICATIONS MUST
MAKE SUCH SERVICE AVAILABLE ON THE SAME TERMS TO MOTOR AND WATER COMMON
AND CONTRACT CARRIERS, AND (2) THAT MOTOR AND WATER CARRIERS MAY,
SUBJECT TO CERTAIN CONDITIONS, UTILIZE TOFC FACILITIES IN THE
PERFORMANCE OF THEIR AUTHORIZED SERVICE?  EX PARTE 230, SUBSTITUTED
SERVICE - CHARGES AND PRACTICES OF FOR-HIRE CARRIERS AND FREIGHT
FORWARDERS (PIGGYBACK SERVICE), 322 I.C.C. 301 (1964). 

A THREE-JUDGE DISTRICT COURT, CONVENED UNDER 28 U.S.C. SECS 1336,
2284, 2321-2325, AT THE REQUEST OF VARIOUS RAILROADS AND FREIGHT
FORWARDERS, SET ASIDE THE RULES WHICH THE ICC HAD PROMULGATED IN A
RULEMAKING PROCEEDING INITIATED ON ITS OWN MOTION.  244 F. SUPP. 955
(D.C.N.D. ILL. 1965).  THE CASE IS HERE ON DIRECT APPEAL.  28 U.S.C.
SECS 1253 AND 2101(B).  384 U.S. 902 (1966). 

THE APPELLEES ARE THE RAILROADS AND FREIGHT FORWARDERS WHO INITIATED
THE DISTRICT COURT PROCEEDING.  THE APPELLANTS ARE THE UNITED STATES
AND THE ICC (NO. 60), TOGETHER WITH THE AMERICAN TRUCKING ASSOCIATIONS,
INC., ET AL. (NO. 57), AND THE NATIONAL AUTOMOBILE TRANSPORTERS
ASSOCIATION (NO. 59), WHICH INTERVENED BELOW AS DEFENDANTS. 

MORE SPECIFICALLY, THE ISSUE PRESENTED IS THE VALIDITY OF RULES 2 AND
3, PROMULGATED BY THE COMMISSION IN EX PARTE 230, SUPRA.  49 CFR SECS
500.2 AND 500.3 (SUPP. 1967).  RULE 2 PROVIDES THAT "TOFC SERVICE, IF
OFFERED BY A RAIL CARRIER THROUGH ITS OPEN-TARIFF PUBLICATIONS, SHALL
BE MADE AVAILABLE" AT THE SAME CHARGE TO ALL OTHER PERSONS.  IN
SUBSTANCE, IT IS A PARAPHRASE OF SEC 2 OF THE INTERSTATE COMMERCE ACT,
24 STAT. 379, AS AMENDED, 49 U.S.C. SEC 2 (HEREINAFTER CITED ONLY TO
U.S.C.).  RULE 3 PROVIDES THAT, WITH CERTAIN QUALIFICATIONS AND SUBJECT
TO CERTAIN CONDITIONS, "MOTOR COMMON AND CONTRACT CARRIERS, WATER
COMMON AND CONTRACT CARRIERS, AND FREIGHT FORWARDERS MAY UTILIZE TOFC
SERVICE IN THE PERFORMANCE OF ALL OR ANY PORTION OF THEIR AUTHORIZED
SERVICE THROUGH THE USE OF OPEN-TARIFF TOFC RATES PUBLISHED BY A RAIL
CARRIER."  THE DISTRICT COURT HELD THAT THE COMMISSION HAS NO AUTHORITY
TO COMPEL RAILROADS TO MAKE OPEN-TARIFF TOFC SERVICE AVAILABLE TO SUCH
CARRIERS, AND THAT SUCH CARRIERS MAY NOT BE AUTHORIZED TO USE TOFC
EXCEPT IF AND AS THE RAILROAD CONSENTS. 

THE BACKGROUND OF THE CONTROVERSY MAY BE BRIEFLY DESCRIBED.  THE
GROWTH OF TRAILER-ON-FLATCAR SERVICE HAS BEEN "EXPLOSIVE" SINCE THE
LATTER HALF OF THE 1950'S.  (FN1)  FROM THE TIME OF PASSAGE IN 1935 OF
PART II OF THE ACT REGULATING MOTOR CARRIERS, UNTIL THE INSTITUTION OF
THE PRESENT PROCEEDING, THE COMMISSION APPEARS TO HAVE REGARDED TRAILER
ON-FLATCAR SERVICE NOT AS BIMODAL, BUT AS AN ADJUNCT OF TRANSPORTATION
BY RAILROAD - AS A FACILITY ESSENTIALLY OF, BY AND FOR THE RAILROADS. 
THIS ATTITUDE IS SUMMED UP BY THE ICC'S DEFINITION OF TOFC IN 1954 IN
MOVEMENT OF HIGHWAY TRAILERS BY RAIL, 293 I.C.C. 93 (THE SO-CALLED NEW
HAVEN CASE), WHICH PROVIDED THE BASIC LEGAL FRAMEWORK UPON WHICH THE
DEVELOPMENT OF TOFC TRAFFIC HAS BEEN BASED.  IN THAT CASE, THE
COMMISSION DESCRIBED TOFC OR PIGGYBACK SERVICE AS TRANSPORTATION OF "A
FREIGHT-LADEN TRAILER SECURED TO A FLATCAR, WHICH IN TURN IS COUPLED IN
A TRAIN BEING DRAWN BY A LOCOMOTIVE OVER STEEL RAILS LAID ON THE
RAILROAD'S RIGHT-OF-WAY  ...  ."  ID., AT 100-101.  (FN2) 

EVEN PRIOR TO THE NEW HAVEN CASE, BEGINNING IN 1939, IN SUBSTITUTED
FREIGHT SERVICE, 232 I.C.C. 683, IT WAS THE COMMISSION'S POSITION THAT
A RAILROAD COULD GRANT OR DENY TOFC SERVICE TO COMMON CARRIERS BY
MOTOR.  (FN3)  EVEN IF THE RAILROAD OFFERED SUCH SERVICE GENERALLY TO
THE PUBLIC, IT COULD WITHHOLD IT FROM FOR-HIRE MOTOR CARRIERS.  EXCEPT
FOR LIMITED USES OF RAIL OPEN TARIFFS PERMITTED BY CERTAIN RAILROADS,
(FN4)  CONTRACT AND COMMON CARRIERS BY MOTOR PARTICIPATED IN PIGGYBACK
SERVICE ONLY BY AGREEMENT, INCLUDING THROUGH ROUTE-JOINT RATE
ARRANGEMENTS BETWEEN A RAILROAD AND A TRUCKER (SEE PLAN V, INFRA), AND
RAILROAD ACCEPTANCE OF TRAILERS OR CONTAINERS OF TRUCKERS, THE SHIPMENT
MOVING UNDER MOTOR CARRIER TARIFFS AND THE RAILROAD'S COMPENSATION
BEING BASED UPON A DIVISION OF CHARGES ARRIVED AT THROUGH NEGOTIATIONS
BETWEEN THE CARRIERS (PLAN I, INFRA).  THESE ARRANGEMENTS HAD TO BE
VOLUNTARY FOR IT HAS BEEN THE PREVAILING VIEW THAT THE RAILROADS, AS
COMMON CARRIERS, HAD NO DUTY TO SERVICE TRUCKERS UNDER THEIR OPEN
TARIFFS, AND, ALTHOUGH SEC 216(C), 49 U.S.C. SEC 316(C), AUTHORIZES
MOTOR COMMON CARRIERS TO ESTABLISH THROUGH ROUTES AND JOINT RATES WITH
RAIL COMMON CARRIERS, THE COMMISSION HAD NO POWER TO COMPEL SUCH JOINT
ARRANGEMENTS. 

ACCORDING TO THE COMMISSION, FIVE BASIC FORMS OF PIGGYBACK SERVICE
EVOLVED (322 I.C.C., AT 304-305, 309-312).  THEY ARE: 

PLAN I (JOINT INTERMODAL): 

RAILROAD MOVEMENT OF TRAILERS OR CONTAINERS OF MOTOR COMMON CARRIERS,
WITH THE SHIPMENT MOVING ON ONE BILL OF LADING AND BILLING BEING DONE
BY THE TRUCKER.  TRAFFIC MOVES UNDER RATES IN REGULAR MOTOR CARRIER
TARIFFS, AND THE RAILROAD'S COMPENSATION IS ARRIVED AT BY NEGOTIATION
BETWEEN THE TWO CARRIERS. 

PLAN II (ALL-RAIL): 

DOOR-TO-DOOR SERVICE PERFORMED BY THE RAILROAD, WHICH MOVES ITS OWN
TRAILERS OR CONTAINERS ON FLATCARS UNDER OPEN TARIFFS USUALLY SIMILAR
TO THOSE OF TRUCKERS. 

PLAN III (ALL-RAIL): 

RAMP-TO-RAMP RATES TO PRIVATE SHIPPERS AND FREIGHT FORWARDERS, BASED
ON A FLAT OPEN-TARIFF CHARGE, REGARDLESS OF THE CONTENTS OF TRAILERS OR
CONTAINERS, WHICH ARE USUALLY OWNED OR LEASED BY FREIGHT FORWARDERS OR
SHIPPERS.  NO PICK-UP OR DELIVERY IS PERFORMED BY THE RAILROAD. 

PLAN IV (ALL-RAIL): 

FLAT OPEN-TARIFF CHARGE FOR LOADED- OR EMPTY-CAR MOVEMENT, THE
RAILROAD FURNISHING ONLY POWER AND RAILS.  SHIPPER OR FORWARDER
FURNISHES A TRAILER OR CONTAINER-LOADED FLATCAR, EITHER OWNED OR
LEASED. 

PLAN V (JOINT INTERMODAL): 

JOINT RAILROAD-TRUCK OR OTHER COMBINATION OF COORDINATED SERVICE
RATES.  EITHER MODE MAY SOLICIT TRAFFIC FOR THROUGH MOVEMENT, AND
TRAFFIC MOVES ON ORIGINATING CARRIER'S BILL OF LADING. 

WHILE DATA ARE NOT AVAILABLE PRECISELY TO DEFINE THE GROWTH OF
TRAFFIC UNDER THE VARIOUS PLANS, THE EVIDENCE INDICATES THAT MAJOR
GROWTH HAS BEEN PRIMARILY IN THE ALL-RAIL, OPEN-TARIFF PLANS - THAT IS,
PLANS UNDER WHICH TRAFFIC MOVES AT RAIL RATES AND ON RAIL BILLINGS. 
THE COMMISSION'S SUMMARY OF RESPONSES TO PIGGYBACK QUESTIONNAIRES,
CONTAINED IN THE RECORD, SHOWS THAT VIRTUALLY ALL OF THE REPORTING
RAILROADS PARTICIPATE IN PLANS II AND III AND ABOUT THREE-FOURTHS
PARTICIPATE IN PLAN IV.  HOWEVER, ONLY "SOMEWHAT MORE THAN HALF" OF THE
REPORTING RAILROADS PARTICIPATE IN TRUCKER-RAIL ARRANGEMENTS UNDER
EITHER PLAN I OR V, AND TRAFFIC IN PLAN V (JOINT RAILROAD TRUCK RATES
THROUGH ROUTES) "GENERALLY IS EXTREMELY LIMITED."  A NUMBER OF THE
LARGEST RAILROADS DO NOT OFFER TO MOVE TRAILERS OR CONTAINERS FOR MOTOR
CARRIERS ON MOTOR CARRIER BILLS OF LADING AND BILLING UNDER REGULAR
MOTOR CARRIER TARIFFS (PLAN I), (FN5) OR OFFER IT ONLY FOR LIMITED
TYPES OF TRAFFIC SUCH AS AUTOMOBILES, OR ONLY TO THEIR OWN
SUBSIDIARIES.  OVER 80% OF RAIL MOVEMENT OF MOTOR CARRIER-RAIL
PIGGYBACK IS UNDER PLAN I. ICC BUR.  OF ECON., PIGGYBACK TRAFFIC
CHARACTERISTICS 21 (1966). 

FACED WITH THE EXPLOSIVE GROWTH OF PIGGYBACK SERVICE ON THE BASIS OF
PRINCIPLES WHICH HAD EVOLVED IN THE INFANCY OF THE DEVELOPMENT OF
PIGGYBACK, THE COMMISSION BY NOTICE DATED JUNE 29, 1962, COMMENCED THIS
PROCEEDING WHICH WAS ITS "FIRST GENERAL INVESTIGATION OF WHAT IS
PROBABLY THE MOST SIGNIFICANT RECENT DEVELOPMENT IN TRANSPORTATION -
TRAILER-ON-FLATCAR OR PIGGYBACK SERVICE."  322 I.C.C., AT 303. 
PROPOSED RULES WERE FURNISHED TO PARTICIPANTS, OPPORTUNITY WAS GIVEN TO
ALL OF THEM TO FILE STATEMENTS, AND AN EXAMINERS' REPORT WAS FILED. 
AFTER EXCEPTIONS AND ORAL ARGUMENT, THE COMMISSION RENDERED ITS
DECISION ON MARCH 16, 1964.  THE COMMISSION STATED THAT "IT IS OUR
PURPOSE AND OUR HOPE TO ENCOURAGE THE GROWTH OF THIS TRANSPORTATION
PHENOMENON."  322 I.C.C., AT 322.  THE RULES WHICH IT PRESCRIBED
INCORPORATE THE BASIC PRINCIPLES HERE AT ISSUE:  THAT "WHEN TOFC
SERVICE IS OFFERED BY A RAIL CARRIER TO THE PUBLIC GENERALLY," IT
SHOULD LIKEWISE BE AVAILABLE TO MOTOR OR WATER COMMON OR CONTRACT
CARRIERS, IN LIEU OF THEIR AUTHORIZED TRANSPORTATION BETWEEN SERVICE
POINTS, OR TO FOR-HIRE CARRIERS.  ID., AT 336.  THESE RULES ALSO
INCLUDE ANCILLARY OR IMPLEMENTING PROVISIONS WHICH ARE NOT HERE AT
ISSUE; FOR EXAMPLE, IT IS PROVIDED THAT THE MOTOR CARRIER MUST GIVE
NOTICE IN ITS TARIFF PUBLICATION IF TOFC IS TO BE USED, AND THE USER OF
THE WATER OR MOTOR CARRIER MAY SPECIFY "THAT IN ANY PARTICULAR INSTANCE
TOFC SERVICE NOT BE UTILIZED" (49 CFR SECS 500.3(B), (C), (D)(SUPP. 
1967); AND THAT THESE CARRIERS MAY TENDER AND RECEIVE TRAFFIC, TOFC,
ONLY AT POINTS THAT THEY ARE AUTHORIZED TO SERVE.  ID., SEC 500.3(E). 

THE THREE-JUDGE DISTRICT COURT CONCLUDED THAT RULES 2 AND 3 (AND RULE
5, ID., SEC 500.5, INSOFAR AS IT AMPLIFIED THOSE RULES) EXCEEDED THE
COMMISSION'S AUTHORITY AND SET THEM ASIDE.  IN SUBSTANCE IT HELD THAT
THE INTERSTATE COMMERCE ACT DID NOT FORBID A RAILROAD TO REFUSE TO
CARRY THE TRAILERS OR CONTAINERS OF A COMPETING MODE OF CARRIER; THAT
THE STRUCTURE AND PLAN OF THE ACT, AS WELL AS THE SPECIFIC ABSENCE OF
COMPULSORY POWER TO THE COMMISSION IN SEC 216(C), WHICH AUTHORIZES
VOLUNTARY JOINT RATES AND THROUGH ROUTES BY MOTOR AND RAIL CARRIERS,
INDICATED THAT THE ICC IS NOT AT LIBERTY TO REQUIRE THE RAILROADS TO
PROVIDE TOFC SERVICE TO COMPETING MODES; THAT PROVISIONS OF THE ACT
REGULATING FREIGHT FORWARDERS IMPELLED THE SAME CONCLUSIONS; AND THAT
THE COMMISSION'S LONG HISTORY OF SUPPORT FOR THE POSITION WHICH ITS
RULES NOW REPUDIATE, AS WELL AS LEGISLATIVE HISTORY, COMPELLED
REJECTION OF THE RULES NOW PROMULGATED.  WE DISAGREE. 

I. 

WE FIRST CONSIDER RULE 2, WHICH RAISES THE QUESTION WHETHER THE
COMMISSION MAY BY RULE REQUIRE THAT IF A RAILROAD OFFERS TOFC SERVICE
TO THE PUBLIC THROUGH ITS OPEN-TARIFF PUBLICATIONS, IT MUST MAKE THAT
SERVICE AVAILABLE TO "ANY PERSON" WITHOUT DISCRIMINATION.  WE BEGIN BY
NOTING THE OBVIOUS FACT THAT THE INTERSTATE COMMERCE ACT CODIFIED THE
COMMON-LAW OBLIGATIONS OF RAILROADS AS COMMON CARRIERS.  FROM THE
EARLIEST DAYS, COMMON CARRIERS HAVE HAD A DUTY TO CARRY ALL GOODS
OFFERED FOR TRANSPORTATION.  SEE, E.G., NEW JERSEY STEAM NAV. CO. V.
MERCHANTS' BANK, 6 HOW.  344, 382-383 (1848).  REFUSAL TO CARRY THE
GOODS OF SOME SHIPPERS WAS UNLAWFUL.  RATES WERE REQUIRED TO BE
REASONABLE, BUT DISCRIMINATION IN THE FORM OF UNEQUAL RATES AS AMONG
SHIPPERS WAS NOT FORBIDDEN.  IN ENGLAND, LEGISLATION TO PROSCRIBE
UNEQUAL RATES, FROM WHICH THE ANTIDISCRIMINATION LANGUAGE OF SEC 2 OF
THE INTERSTATE COMMERCE ACT DERIVES (ICC V. DELAWARE, L.&W.R. CO., 220
U.S. 235, 253 (1911)), WAS ENACTED IN 1845.  THE RAILWAY CLAUSES
CONSOLIDATION ACT OF 1845, 8 & 9 VICT., C. 20, SEC LXXXVI ET SEQ.  IN
THIS COUNTRY, THE RAILROADS HAD A PRACTICAL MONOPOLY OF FREIGHT
TRANSPORTATION, AND SECRET REBATES, SPECIAL RATES TO FAVORED SHIPPERS,
AND DISCRIMINATIONS FLOURISHED.  IT WAS THIS SITUATION THAT LED TO
ENACTMENT OF THE INTERSTATE COMMERCE ACT IN 1887.  1 SHARFMAN, THE
INTERSTATE COMMERCE COMMISSION 17-19 (1931); LOUISVILLE & N.R. CO. V.
UNITED STATES, 282 U.S. 740, 749-750 (1931). 

BE THE DUTY OF COMMON CARRIERS BY RAIL TO PROVIDE TRANSPORTATION "UPON
REASONABLE REQUEST THEREFOR" AND TO ESTABLISH JUST AND REASONABLE
RATES.  SECTION 2, 49 U.S.C. SEC 2, PROHIBITS DISCRIMINATORY RATES OR
CHARGES.  SECTION 3(1), 49 U.S.C. SEC 3(1), FORBIDS UNDUE PREFERENCES
OR ADVANTAGES, AND UNDUE OR UNREASONABLE PREJUDICES OR DISADVANTAGES TO
ANY PERSON, AREA OR PARTICULAR DESCRIPTION OF TRAFFIC.  THE ACT DOES
NOT CONTAIN ANY PROVISION EXPRESSLY EXEMPTING TRAFFIC OFFERED BY
CARRIERS BY MOTOR VEHICLE FROM THESE BROAD COMMON-CARRIER OBLIGATIONS
OF THE RAILROADS.  ON THE CONTRARY, THESE SECTIONS OF THE ACT, READ IN
LIGHT OF THE HISTORIC OBLIGATIONS AND DUTIES OF COMMON CARRIERS AND THE
LARGE NUMBER OF DECISIONS OF THE COMMISSION, AND OF THE COURTS IN THIS
COUNTRY AND IN ENGLAND, INDICATE, PRESUMPTIVELY AT LEAST, THAT
RAILROADS MAY NOT OFFER THE SERVICE OF TRANSPORTING TRAILERS FOR OTHER
SHIPPERS AND DENY THAT SERVICE TO MOTOR CARRIERS.  (FN6)  INDEED, AS WE
HAVE OBSERVED, THE COMMISSION'S RULE 2 IS PRACTICALLY A PARAPHRASE OF
SEC 2 OF THE ACT.  IT PROVIDES THAT IF A RAIL CARRIER THROUGH ITS OPEN
TARIFF PUBLICATIONS OFFERS TOFC SERVICES, IT SHALL MAKE THE SAME
AVAILABLE "TO ANY PERSON" AT THE SAME CHARGE.  IT IS, OF COURSE, OF NO
CONSEQUENCE THAT THE ACT DOES NOT EXPRESSLY COMMAND THAT THE RAILROADS
FURNISH THIS SERVICE TO MOTOR CARRIERS.  THEIR OBLIGATION AS COMMON
CARRIERS IS COMPREHENSIVE AND EXCEPTIONS ARE NOT TO BE IMPLIED.  THE
FACT THAT THE PERSON TENDERING TRAFFIC IS A COMPETITOR DOES NOT PERMIT
THE RAILROAD TO DISCRIMINATE AGAINST HIM OR IN HIS FAVOR.  SEE ICC V.
DELAWARE, L.&W.R. CO., 220 U.S. 235 (1911) (UNLAWFUL FOR RAILROADS TO
CHARGE LESS-THAN-CARLOAD RATES FOR CARLOAD SHIPMENTS TENDERED BY
FREIGHT FORWARDERS); ICC V. BALTIMORE & O.R. CO., 225 U.S. 326
(1912)(LOWER RATES ON COAL SHIPPED BY ANOTHER RAILROAD FOR ITS OWN USE
AS FUEL HELD UNLAWFUL).  CF. WIGHT V. UNITED STATES, 167 U.S. 512
(1897).  AS THIS COURT SAID IN DELAWARE, L.&W.R. CO., SUPRA:    "THE
CONTENTION THAT A CARRIER WHEN GOODS ARE TENDERED TO HIM FOR
TRANSPORTATION CAN MAKE THE MERE OWNERSHIP OF THE GOODS THE TEST OF THE
DUTY TO CARRY, OR, WHAT IS EQUIVALENT, MAY DISCRIMINATE IN FIXING THE
CHARGE FOR CARRIAGE, NOT UPON ANY DIFFERENCE INHERING IN THE GOODS OR
IN THE COST OF THE SERVICE RENDERED IN TRANSPORTING THEM, BUT UPON THE
MERE CIRCUMSTANCE THAT THE SHIPPER IS OR IS NOT THE REAL OWNER OF THE
GOODS IS SO IN CONFLICT WITH THE OBVIOUS AND ELEMENTARY DUTY RESTING
UPON A CARRIER, AND SO DESTRUCTIVE OF THE RIGHTS OF SHIPPERS AS TO
DEMONSTRATE THE UNSOUNDNESS OF THE PROPOSITION BY ITS MERE STATEMENT." 
220 U.S., AT 252. 

THIS COURT WAS FACED WITH AN INTERMODAL PROBLEM, COMPARABLE TO THAT
IN THE PRESENT CASES, IN UNITED STATES V. PENNSYLVANIA R. CO., 323 U.S.
612 (1945)(THE SEATRAIN CASE).  THE RAILROADS REFUSED TO INTERCHANGE
THEIR FREIGHT CARS WITH SEATRAIN, A WATER CARRIER, FOR INTERSTATE
TRANSPORTATION BY SEATRAIN IN COMPETITION WITH THE RAILROADS.  THE ICC
ORDERED THE RAILROADS TO DESIST FROM THIS PRACTICE, AND THE RAILROADS
BROUGHT AN ACTION TO SET ASIDE ITS ORDER.  THE RAILROADS CONTENDED THAT
THE TRANSPORTATION ACT OF 1940, 54 STAT. 898, DID NOT IN "SPECIFIC
LANGUAGE" AUTHORIZE THE COMMISSION TO REQUIRE THEM TO FURNISH THE
DISPUTED FACILITY TO A COMPETING WATER CARRIER.  BUT THIS COURT
REJECTED THAT CONTENTION.  IT SAID: 

"THERE IS NO LANGUAGE IN THE PRESENT ACT WHICH SPECIFICALLY COMMANDS
THAT RAILROADS MUST INTERCHANGE THEIR CARS WITH CONNECTING WATER
LINES.  WE CANNOT AGREE WITH THE CONTENTION THAT THE ABSENCE OF
SPECIFIC LANGUAGE INDICATES A PURPOSE OF CONGRESS NOT TO REQUIRE SUCH
AN INTERCHANGE.  TRUE, CONGRESS HAS SPECIFIED WITH PRECISE LANGUAGE
SOME OBLIGATIONS WHICH RAILROADS MUST ASSUME.  BUT ALL LEGISLATION
DEALING WITH THIS PROBLEM SINCE THE FIRST ACT IN 1887, 24 STAT. 379,
HAS CONTAINED BROAD LANGUAGE TO INDICATE THE SCOPE OF THE LAW.  THE
VERY COMPLEXITIES OF THE SUBJECT HAVE NECESSARILY CAUSED CONGRESS TO
CAST ITS REGULATORY PROVISIONS IN GENERAL TERMS.  CONGRESS HAS, IN
GENERAL, LEFT THE CONTENTS OF THESE TERMS TO BE SPELLED OUT IN
PARTICULAR CASES BY ADMINISTRATIVE AND JUDICIAL ACTION, AND IN THE
LIGHT OF THE CONGRESSIONAL PURPOSE TO FOSTER AN EFFICIENT AND FAIR
NATIONAL TRANSPORTATION SYSTEM.  CF. CHICAGO, R.I.&P.R. CO. V. UNITED
STATES, 274 U.S. 29, 36; INTERSTATE COMMERCE COMMISSION V. RAILWAY
LABOR EXECUTIVES ASSN., 315 U.S. 373, 376-377."  323 U.S., AT 616. 

IN SEATRAIN, THIS COURT EMPHATICALLY REJECTED THE ANALYSIS UPON WHICH
THE DISTRICT COURT HERE ESSENTIALLY BASED ITS POSITION - THAT SINCE THE
ACT REGULATES RAIL, MOTOR, AND WATER CARRIERS SEPARATELY, IN TITLES I,
II, AND III, THE COMMISSION MAY NOT COMPEL THE MUTUAL FURNISHING OF
SERVICES AND FACILITIES OTHER THAN AS EXPRESSLY DIRECTED.  RECOGNIZING
THAT IN THE CASE OF WATER CARRIERS (AS DISTINGUISHED FROM MOTOR
CARRIERS), THE ACT SPECIFICALLY DIRECTS RAILROADS TO ESTABLISH THROUGH
ROUTES WITH THEM, THE COURT HELD THAT THIS IS NOT THE END OF THE
RAILROADS' OBLIGATION OR THE LIMIT OF THE COMMISSION'S POWER.  ON THE
CONTRARY, THE COURT, RELYING ON THE NATIONAL TRANSPORTATION POLICY (49
U.S.C. PRECEDING SEC 1), HELD THAT THE ACT IS DESIGNED "TO PROVIDE A
COMPLETELY INTEGRATED INTERSTATE REGULATORY SYSTEM OVER MOTOR,
RAILROAD, AND WATER CARRIERS  ...  ."   323 U.S., AT 618-619, AND THAT
THE COMMISSION THEREFORE HAD POWERS COMMENSURATE WITH THAT GOAL.  IN
THIS CONNECTION, THE COURT SAID: 

"THE 1940 TRANSPORTATION ACT IS DIVIDED INTO THREE PARTS, THE FIRST
RELATING TO RAILROADS, THE SECOND TO MOTOR VEHICLES, AND THE THIRD TO
WATER CARRIERS.  THAT ACT, AS HAD EACH PREVIOUS AMENDMENT OF THE
ORIGINAL 1887 ACT, EXPANDED THE SCOPE OF REGULATION IN THIS FIELD AND
CORRELATIVELY BROADENED THE COMMISSION'S POWERS.  THE INTERRELATIONSHIP
OF THE THREE PARTS OF THE ACT WAS MADE MANIFEST BY ITS DECLARATION OF A
'NATIONAL TRANSPORTATION POLICY OF THE CONGRESS TO PROVIDE FOR FAIR AND
IMPARTIAL REGULATION OF ALL MODES OF TRANSPORTATION SUBJECT TO THE
PROVISIONS OF THIS ACT, SO ADMINISTERED AS TO RECOGNIZE AND PRESERVE
THE INHERENT ADVANTAGES OF EACH.'  THE DECLARED OBJECTIVE WAS THAT OF
'DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION
SYSTEM BY WATER, HIGHWAY, AND RAIL,  ...  ADEQUATE TO MEET THE NEEDS OF
THE COMMERCE OF THE UNITED STATES  ...  .'  CONGRESS FURTHER ADMONISHED
THAT 'ALL OF THE PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND
ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE DECLARATION OF POLICY.' 
54 STAT. 899."  323 U.S., AT 616-617. 

IN VIEW OF THIS, WE CANNOT ACCEPT ARGUMENTS BASED UPON ARGUABLE
INFERENCE FROM NONSPECIFIC STATUTORY LANGUAGE, LIMITING THE
COMMISSION'S POWER TO ADOPT RULES WHICH, ESSENTIALLY, REFLECT ITS
JUDGMENT IN LIGHT OF CURRENT FACTS AS TO THE PROPER INTERRELATIONSHIP
OF SEVERAL MODES OF TRANSPORTATION WITH RESPECT TO AN IMPORTANT NEW
DEVELOPMENT.  FOR EXAMPLE, SEC 216(C), 49 U.S.C. SEC 316(C), AUTHORIZES
THE RAILROADS TO ENTER INTO VOLUNTARY ARRANGEMENTS FOR THROUGH ROUTES
AND JOINT RATES WITH MOTOR CARRIERS.  THERE IS NO COMMISSION POWER TO
COMPEL THE RAILROADS TO DO SO, AND IT IS ARGUED THAT FROM THIS WE
SHOULD DERIVE A CONGRESSIONAL INTENT THAT THE ICC MAY NOT COMPEL THE
RAILROADS TO FURNISH SERVICES TO THE MOTOR CARRIERS IN ANY
CIRCUMSTANCES.  THERE IS NO BASIS FOR THIS VAST LEAP FROM A PARTICULAR
AUTHORIZATION TO A PERVASIVE PROHIBITION.  SEE OUR DISCUSSION OF
SEATRAIN, SUPRA. 

IT IS ALSO ARGUED THAT A PROVISO TO SEC 3(1) OF THE ACT, 49 U.S.C.
SEC 3(1), DEMONSTRATES THAT CONGRESS DID NOT INTEND TO INHIBIT THE
RAILROADS FROM DISCRIMINATING AGAINST MOTOR CARRIERS.  THIS CONTENTION,
STRENUOUSLY SUPPORTED, IS WITHOUT MERIT.  SECTION 3(1) BROADLY
PROHIBITS ANY COMMON CARRIER BY RAIL FROM GIVING "ANY UNDUE OR
UNREASONABLE PREFERENCE" TO ANY PERSON, LOCALITY OR TYPE OF TRAFFIC. 
IT THEN SETS FORTH THIS PROVISO:  "PROVIDED, HOWEVER, THAT THIS
PARAGRAPH SHALL NOT BE CONSTRUED TO APPLY TO DISCRIMINATION, PREJUDICE,
OR DISADVANTAGE TO THE TRAFFIC OF ANY OTHER CARRIER OF WHATEVER
DESCRIPTION."  THIS IS LANGUAGE MORE NOTABLE FOR ITS AWKWARDNESS THAN
FOR ITS CLARITY; BUT IT CERTAINLY WAS NOT INTENDED, AS APPELLEES URGE,
TO GRANT LICENSE TO DISCRIMINATE AGAINST TRAFFIC OFFERED TO THE
RAILROAD BY ANOTHER CARRIER.  WE HAVE NOTED ABOVE THAT THIS COURT HAS
CLEARLY HELD THAT SUCH DISCRIMINATION IS NOT PERMISSIBLE.  MOREOVER,
THERE IS AN INTELLIGIBLE MEANING WHICH CAN BE ASCRIBED TO THE PROVISO
AND WHICH IS CONSISTENT WITH ITS HISTORY.  THE PROVISO MEANS THAT THE
PROHIBITION AGAINST "UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE" IS
NOT TO BE CONSTRUED TO FORBID PRACTICES, OTHERWISE LAWFUL, SOLELY
BECAUSE THEY OPERATE TO THE PREJUDICE OF ANOTHER CARRIER.  IT WAS IN
THESE TERMS THAT THE LANGUAGE OF THE PROVISO WAS EXPLAINED BY SENATOR
WHEELER, THE BILL'S SPONSOR.  THE PROVISO WAS TAKEN ALMOST VERBATIM
FROM SEC 216(D) OF THE MOTOR CARRIER ACT, 1935, 49 STAT. 558 (NOW 49
U.S.C. SEC 316(D)).  EXPLAINING IT, SENATOR WHEELER SAID: 

"PARAGRAPH (D)  ...  PROHIBITS UNJUST DISCRIMINATION OR UNDUE
PREJUDICE OR DISADVANTAGE.  THE COMMITTEE HAS ADDED A PROVISION THAT
THIS PROHIBITION SHALL NOT BE CONSTRUED TO APPLY TO THE TRAFFIC OF ANY
OTHER CARRIER OF WHATEVER DESCRIPTION. 

"IN OTHER WORDS, SOME OF THE TRUCK AND BUS OPERATORS WERE AFRAID THAT
THE RAILROADS WOULD COME IN AND COMPLAIN, AND WE ADDED THIS PROVISION
SO AS DOUBLY TO PROTECT THE TRUCK AND BUS OPERATORS. 

"THIS PROVISION IS ADDED TO MEET THE OBJECTION OF CERTAIN INTERESTS
THAT THE ORIGINAL PARAGRAPH MIGHT HAVE BEEN CONSTRUED SO AS TO MAKE IT
UNLAWFUL FOR A MOTOR CARRIER TO CHARGE A RATE WHICH WOULD PLACE A RAIL
CARRIER OR ANY OTHER CARRIER AT A DISADVANTAGE.  THIS CONTENTION IS NOT
WELL FOUNDED IN OUR JUDGMENT INASMUCH AS THE PROVISIONS OF THIS
PARAGRAPH ARE SUBSTANTIALLY THE SAME AS THOSE IN SECTION 3(1) OF THE
INTERSTATE COMMERCE ACT, WHCH HAS BEEN IN EFFECT SINCE 1887, AND HAVE
ALWAYS BEEN INTERPRETED AS COVERING UNEQUAL AND UNJUST TREATMENT BY A
CARRIER OF ITS PATRONS.  HOWEVER, AS I SAID, TO MAKE ASSURANCE DOUBLE
SURE, THIS PROVISION WAS ADDED."  79 CONG. REC 5656 (1935). 

ACCORDINGLY, WE ARE REMITTED TO CONSIDERATION OF THE PROVISIONS OF
THE ACT WHICH, IN THE MOST GENERAL TERMS, REQUIRE THE RAILROADS TO
PERFORM AS COMMON CARRIERS.  IT IS NOT OUR DUTY, OF COURSE, TO CONCERN
OURSELVES WITH A NICE EVALUATION OF THE ARGUMENTS AS TO WHETHER THE
COMMISSION PURSUED THE COURSE OF WISDOM IN ORDERING THE RAILROADS TO
MAKE PIGGYBACK SERVICE AVAILABLE TO MOTOR CARRIERS IF IT IS OFFERED TO
OTHERS ON OPEN-TARIFF RATES.  IT IS OUR TASK TO SCRUTINIZE THE
COMMISSION'S AUTHORITY, NOT THE SUBSTANCE OF ITS EXERCISE.  WE CONCLUDE
THAT, IN LIGHT OF THE MANDATE OF THE NATIONAL TRANSPORTATION POLICY,
THE COMMISSION HAD AUTHORITY DERIVED FROM THE COMMON-CARRIER
OBLIGATIONS OF THE RAILROADS AS REFLECTED IN SECS 1(4), 2, AND 3(1) OF
THE ACT TO PROMULGATE RULE 2 REQUIRING THAT ANY RAILROAD OFFERING TOFC
SERVICE THROUGH ITS OPEN-TARIFF PUBLICATIONS MUST MAKE THAT SERVICE
AVAILABLE "TO ANY PERSON" ON NONDISCRIMINATORY TERMS.  WE COME, THEN,
TO RULE 3. 

      II. 

RULE 3, IN GENERAL, AUTHORIZES "MOTOR COMMON AND CONTRACT CARRIERS,
WATER COMMON AND CONTRACT CARRIERS, AND FREIGHT FORWARDERS" TO "UTILIZE
TOFC SERVICE IN THE PERFORMANCE OF ALL OR ANY PORTION OF THEIR
AUTHORIZED SERVICE THROUGH THE USE OF OPEN-TARIFF TOFC RATES PUBLISHED
BY A RAIL CARRIER."  AT THE OUTSET, AS DISCUSSED ABOVE, WE REJECT THE
CONTENTION THAT THE RAILROADS, DESPITE THEIR COMMON-CARRIER OBLIGATIONS
AND THE ABSENCE OF AN EXCEPTION THERETO IN THE ACT, MAY EXCLUDE
CARRIERS BY COMPETING MODES OF TRANSPORTATION FROM ACCESS TO THEIR
PUBLICLY OFFERED SERVICES AND FACILITIES; AND WE DO NOT ACCEPT THE
ARGUMENT THAT SEC 216(C), 49 U.S.C. SEC 316(C), WHICH AUTHORIZES
VOLUNTARY THROUGH ROUTE AND JOINT RATE ARRANGEMENTS BETWEEN RAILROADS
AND TRUCKERS, IMPLIES THAT THE RAILROADS HAVE NO OTHER OBLIGATION TO
MOTOR CARRIERS AND THAT NO OTHER OBLIGATION MAY BE IMPOSED UPON THEM BY
THE ICC IN THIS RESPECT.  THAT CONTENTION IS REFUTED BY THE SEATRAIN
CASE, SUPRA. 

IT IS STRENUOUSLY CONTENDED, HOWEVER, THAT WHATEVER MAY BE THE
RAILROADS' DUTY, COMMON CARRIERS BY MOTOR VEHICLE MAY NOT BE AUTHORIZED
TO SUBSTITUTE TRANSPORTATION BY RAIL FOR THE TRANSPORTATION BY ROAD
WHICH IS THE BASIS OF THEIR FRANCHISE - EXCEPT WITH THE AGREEMENT OF
THE RAILROAD.  IT IS THIS EXCEPTION THAT SAPS THE ARGUMENT OF SOME OF
ITS FORCE, IF NOT ITS FERVOR.  ONE WOULD ASSUME THAT IF THE MOTOR
CARRIERS ARE NOT AUTHORIZED BY THEIR FRANCHISE UNDER THE ACT TO
SUBSTITUTE TRANSPORTATION BY RAIL FOR TRANSPORTATION BY ROAD, THEY
COULD NOT DO SO WITH THE CONSENT OF THE RAILROADS.  BUT NEITHER THE
RAILROADS, MOST OF WHICH, BY AGREEMENT, PROVIDE TOFC SERVICE TO SOME
MOTOR CARRIERS, NOR THE FREIGHT FORWARDERS TAKE THIS POSITION.  NOR DID
THE COURT BELOW.  NONE OF THEM URGES THE INVALIDITY OF PLAN I AS
PRESENTLY IN USE, WHICH PROVIDES FOR TRUCKER UTILIZATION OF TOFC
SERVICE WITH THE RAILROAD'S CONCURRENCE.  (FN7)  AS THE DISTRICT COURT
PUT IT:  "THE POLICY EXPLICIT IN SECTIONS 216(C)(AUTHORIZING VOLUNTARY
RAIL-TRUCK THROUGH ROUTES, DISCUSSED ABOVE) AND 402(A)(5)(49 U.S.C. SEC
1002(A)(5), DEFINING FREIGHT FORWARDERS, DISCUSSED BELOW), AND IMPLICIT
IN THE STRUCTURE OF THE INTERSTATE COMMERCE ACT AS A WHOLE, DOES NOT
ALLOW A MOTOR CARRIER TO PERFORM ITS AUTHORIZED SERVICE SIMPLY BY
TENDERING THE SHIPMENT TO THE RAILROAD FOR TRANSPORTATION WITHOUT THE
RAILROAD'S CONCURRENCE."  244 F. SUPP., AT 967.  (FN8)  AS WE HAVE
DISCUSSED, THIS "CONCURRENCE" OF THE RAILROADS, WHERE GRANTED, PERMITS
TRUCKERS TO USE TOFC SERVICE NOT ONLY PURSUANT TO PLANS I AND V, SUPRA,
BUT ALSO UNDER PLAN III AND PLAN IV, THE LATTER BEING OPEN-TARIFF
ARRANGEMENTS.  THE ARGUMENT OF APPELLEES AND THE REASONING OF THE
DISTRICT COURT CAREFULLY CONCEDE THAT THE MOTOR CARRIERS MAY, WITHOUT
VIOLATING THE ACT OR THEIR CHARTERS, UTILIZE THIS SUBSTITUTED SERVICE. 

BUT, REGARDLESS OF THIS, THERE IS NO ADEQUATE REASON TO CONSTRUE THE
ACT SO AS TO DEPRIVE THE COMMISSION OF THE POWER TO AUTHORIZE THE
CARRIERS BY MOTOR VEHICLE TO USE TOFC WHEN THAT SERVICE IS OFFERED BY
RAILROADS TO THE PUBLIC ON OPEN TARIFF.  THE INTERSTATE COMMERCE ACT
DEFINES A "COMMON CARRIER BY MOTOR VEHICLE" AS "ANY PERSON WHICH HOLDS
ITSELF OUT TO THE GENERAL PUBLIC TO ENGAGE IN ...  TRANSPORTATION BY
MOTOR VEHICLE."  49 U.S.C. SEC 303(A)(14).  THIS DOES NOT EXCLUDE JOINT
ARRANGEMENTS WITH WATER CARRIERS OR RAIL CARRIERS, WHICH ARE EXPRESSLY
PERMITTED BY SEC 216(C) ON A VOLUNTARY BASIS, AND ACCORDING TO THE
APPELLANTS AND THE DISTRICT COURT IT IS NOT INCONSISTENT WITH THE USE
OF OPEN-TARIFF TOFC IF THE RAILROAD IS WILLING.  CLEARLY, TOO, A
TRUCKER WHICH UTILIZES A FERRY TO TRANSPORT ITS TRAILER AND ITS CARGO
IS NOT VIOLATING THE STATUTE OR ITS CERTIFICATE.  WE MAY PROPERLY
ASSUME, THEREFORE, THAT THE ACT CANNOT BE CONSTRUED TO REQUIRE THAT THE
TRUCKER MUST ALWAYS TRANSPORT ITS CARGO EXCLUSIVELY BY ROAD.  APPELLEES
AND THE DISTRICT COURT ARGUE, HOWEVER, THAT THE FOLLOWING FACTORS
DEMONSTRATE THAT THE COMMISSION MAY NOT AUTHORIZE MOTOR CARRIERS TO USE
TOFC SERVICE ON OPEN TARIFFS:  THE LONG HISTORY OF THE COMMISSION'S
CONSTRUCTION AND APPLICATION OF THE ACT CONTRARY TO ITS PRESENT
POSITION, THE HISTORY OF CONGRESSIONAL CONSIDERATION, AND THE
PROVISIONS OF THE ACT RELATING TO FREIGHT FORWARDERS.    IT IS TRUE, AS
WE HAVE STATED, THAT THE COMMISSION FOR OVER 25 YEARS HAS INSISTED THAT
RAILROAD CONCURRENCE IS ESSENTIAL FOR TRUCKER USE OF TOFC SERVICES.  IN
SUBSTITUTED FREIGHT SERVICE, 232 I.C.C. 683, THE COMMISSION HELD THAT A
PERSON MAY NOT BE BOTH A CARRIER AND A SHIPPER AS TO THE SAME SERVICE. 
SEE ALSO RINGSBY TRUCK LINES, INC. V. ATCHISON, T.&S.F.R. CO., 263
I.C.C. 139, 141 (1945); AND THE NEW HAVEN CASE, 293 I.C.C. 93, 104-105
(1954).  BUT SEE THE EARLIER CONTRARY HOLDING IN TRUCKS ON FLAT CARS
BETWEEN CHICAGO AND TWIN CITIES, 216 I.C.C. 435 (1936).  THE
COMMISSION'S REPORT ARGUES THAT SUBSTITUTED FREIGHT SERVICE, CORRECTLY
UNDERSTOOD, DOES NOT PROSCRIBE THE KIND OF SUBSTITUTED SERVICE HERE AT
ISSUE, "IN WHICH ONE COMMON CARRIER SERVICE IS SUBSTITUTED FOR ANOTHER
THROUGH THE USE OF AN OPEN-TARIFF RATE OF THE CARRIER PERFORMING THE
SUBSTITUTED SERVICE - PROVIDED THAT PROPER NOTICE IS GIVEN IN THE
TARIFF PUBLICATION OF THE CARRIER USING THE SUBSTITUTED SERVICE."   322
I.C.C., AT 333.  THE COMMISSION ALSO ARGUES THAT ITS SUBSEQUENT
DECISIONS, CITED ABOVE, ARE BASED UPON AN INCORRECT VIEW OF THE
SUBSTITUTED FREIGHT SERVICE CASE.  AND IT CITES GREER BROKER
APPLICATION, 23 M.C.C. 417 (1940), AND STONE'S EXP., INC., COMMON
CARRIER APPLICATION, 32 M.C.C. 525 (1942), AS CONSISTENT WITH ITS
PRESENT READING OF SUBSTITUTED FREIGHT SERVICE.  WE DO NOT REST UPON
THIS ANALYSIS BECAUSE, IN ANY EVENT, WE AGREE THAT THE COMMISSION,
FACED WITH NEW DEVELOPMENTS OR IN LIGHT OF RECONSIDERATION OF THE
RELEVANT FACTS AND ITS MANDATE, MAY ALTER ITS PAST INTERPRETATION AND
OVERTURN PAST ADMINISTRATIVE RULINGS AND PRACTICE.  COMPARE SEC V.
CHENERY CORP., 332 U.S. 194 (1947); FCC V. WOKO, 329 U.S. 223 (1946). 
IN FACT, ALTHOUGH WE MAKE NO JUDGMENT AS TO THE POLICY ASPECTS OF THE
COMMISSION'S ACTION, THIS KIND OF FLEXIBILITY AND ADAPTABILITY TO
CHANGING NEEDS AND PATTERNS OF TRANSPORTATION IS AN ESSENTIAL PART OF
THE OFFICE OF A REGULATORY AGENCY.  REGULATORY AGENCIES DO NOT
ESTABLISH RULES OF CONDUCT TO LAST FOREVER; THEY ARE SUPPOSED, WITHIN
THE LIMITS OF THE LAW AND OF FAIR AND PRUDENT ADMINISTRATION, TO ADAPT
THEIR RULES AND PRACTICES TO THE NATION'S NEEDS IN A VOLATILE, CHANGING
ECONOMY.  THEY ARE NEITHER REQUIRED NOR SUPPOSED TO REGULATE THE
PRESENT AND THE FUTURE WITHIN THE INFLEXIBLE LIMITS OF YESTERDAY. 

IT IS TRUE THAT THE ATTENTION OF THE CONGRESS HAD BEEN CALLED TO THE
NEED FOR ACTION TO SECURE THE RELIEF WHICH THE COMMISSION SUBSEQUENTLY
GRANTED IN ITS RULES.  IN FEBRUARY 1962, THE AMERICAN TRUCKING
ASSOCIATIONS, IN THE COURSE OF ORAL ARGUMENT IN GORDON'S TRANSPORTS,
INC. V. STRICKLAND TRANSP.  CO., 318 I.C.C. 395, SUSTAINED SUB NOM.
STRICKLAND TRANSPORTATION CO. V. UNITED STATES, 219 F. SUPP. 618
(D.C.N.D. TEX. 1963), APPARENTLY URGED THAT MOTOR CARRIERS BE ALLOWED
TO UTILIZE TOFC OPEN TARIFFS.  ON APRIL 5, 1962, PRESIDENT KENNEDY SENT
A TRANSPORTATION MESSAGE TO CONGRESS CALLING FOR LEGISLATIVE ACTION TO
"ASSURE ALL CARRIERS THE RIGHT TO SHIP VEHICLES OR CONTAINERS ON THE
CARRIERS OF OTHER BRANCHES OF THE TRANSPORTATION INDUSTRY AT THE SAME
RATES AVAILABLE TO NONCARRIER SHIPPERS  ...  " SO THAT THE VARIOUS
CARRIERS WOULD BE PLACED "IN A POSITION OF EQUALITY WITH FREIGHT
FORWARDERS AND OTHER SHIPPERS IN THE USE OF THE PROMISING AND FAST
GROWING PIGGYBACK AND RELATED TECHNIQUES."  H.R.  DOC. NO. 384, 87TH
CONG., 2D SESS., P. 5 (1962).  SECRETARY OF COMMERCE HODGES TRANSMITTED
TO CONGRESS PROPOSED LEGISLATION TO IMPLEMENT THE PRESIDENT'S MESSAGE. 
HEARINGS ON S. 3242 AND S. 3243 BEFORE THE SENATE COMMITTEE ON
COMMERCE, 87TH CONG., 2D SESS., PT. 1, P. 13 (1962).  SEE ALSO HEARINGS
ON S. 1061 AND S. 1062 BEFORE SURFACE TRANSPORTATION SUBCOMMITTEE OF
THE SENATE COMMITTEE ON COMMERCE, 88TH CONG., 1ST SESS., PT. 1, P. 3
(1963).  BILLS WERE INTRODUCED IN 1962 AND 1963.  SEE S. 3242 AND H.R.
11584, 87TH CONG., 2D SESS. (1962); S. 1062 AND H.R. 4701, 88TH CONG.,
1ST SESS. (1963).  ON JUNE 29, 1962, THE COMMISSION INSTITUTED THE
PRESENT PROCEEDING.  IT ADVISED CONGRESS OF ITS ACTION AND OF ITS
INTENTION TO "RESOLVE" THE MATTER OR, IF IT COULD NOT, TO RECOMMEND
APPROPRIATE LEGISLATION.  SURFACE TRANSPORTATION SUBCOMMITTEE HEARINGS,
SUPRA, PT. 2, P. 801; HEARINGS ON H.R. 4700 AND H.R. 4701 BEFORE THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 88TH CONG., 1ST
SESS., PT. 1, P. 32 (1963).  FOLLOWING THIS, REQUESTS CAME FROM THE
INDUSTRY TO CONGRESS THAT IT WITHHOLD LEGISLATIVE ACTION PENDING THE
COMMISSION'S DECISION.  SEE, E.G., HEARINGS ON H.R. 4700 AND H.R. 4701,
SUPRA, PT. 1 P. 213; PT. 2, P. 991.  WE DO NOT REGARD THIS AS
LEGISLATIVE HISTORY DEMONSTRATING A CONGRESSIONAL CONSTRUCTION OF THE
MEANING OF THE STATUTE, NOR DO WE FIND IN IT EVIDENCE OF AN
ADMINISTRATIVE INTERPRETATION OF THE ACT WHICH SHOULD TILT THE SCALES
AGAINST THE CORRECTNESS OF THE COMMISSION'S CONCLUSIONS AS TO ITS
AUTHORITY TO PRESCRIBE THE PRESENT RULES.  THE ADVOCACY OF LEGISLATION
BY AN ADMINISTRATIVE AGENCY - AND EVEN THE ASSERTION OF THE NEED FOR IT
TO ACCOMPLISH A DESIRED RESULT - IS AN UNSURE AND UNRELIABLE, AND NOT A
HIGHLY DESIRABLE, GUIDE TO STATUTORY CONSTRUCTION.  THE POSSIBILITY OF
ITS USE TO PROVE MORE THAN IT MEANS MAY, BUT SHOULD NOT, DETER
ADMINISTRATIVE AGENCIES FROM SEEKING HELPFUL CLARIFICATION OF AUTHORITY
OR A FRESH AND SPECIFIC CONGRESSIONAL MANDATE.  (FN9) 

THE FINAL ARGUMENT TO WHICH WE MUST ADDRESS OURSELVES IS VIGOROUSLY
MADE BY THE FREIGHT FORWARDER APPELLEES.  FREIGHT FORWARDING IS
AUTHORIZED AND REGULATED IN PART IV OF THE INTERSTATE COMMERCE ACT (49
U.S.C. SEC 1001 ET SEQ.).  THIS PART WAS ENACTED IN 1942 (56 STAT.
284).  A FREIGHT FORWARDER IS DEFINED AS "ANY PERSON WHICH (OTHERWISE
THAN AS A CARRIER  ...  (BY RAIL, MOTOR VEHICLE OR WATER)) HOLDS ITSELF
OUT TO THE GENERAL PUBLIC AS A COMMON CARRIER TO TRANSPORT OR PROVIDE
TRANSPORTATION OF PROPERTY,  ...  AND WHICH  ...  (A) ASSEMBLES AND
CONSOLIDATES  ...  SHIPMENTS  ...  AND (B) ASSUMES RESPONSIBILITY FOR
THE TRANSPORTATION OF SUCH PROPERTY  ...  AND (C) UTILIZES, FOR THE
WHOLE OR ANY PART OF THE TRANSPORTATION OF SUCH SHIPMENTS, THE SERVICES
OF" A RAIL, MOTOR VEHICLE OR WATER CARRIER.  SEC 402(A)(5), 49 U.S.C.
SEC 1002(A)(5).  IT CANNOT PERFORM THE PHYSICAL TRANSPORTATION EXCEPT
IN ITS TERMINAL AREAS.  SEC 410(H), 49 U.S.C. SEC 1010(H).  IT
ASSEMBLES SHIPMENTS, CONSOLIDATES THEM, SHIPS THEM BY COMMON CARRIER
(USUALLY A RAILROAD), RECEIVES THEM AND SEPARATES AND DISTRIBUTES THEM
TO INDIVIDUAL CONSIGNEES.  THE ACT SPECIFICALLY PROVIDES THAT NO PERMIT
TO ENGAGE IN FREIGHT FORWARDING SHALL BE ISSUED TO ANY COMMON CARRIER
BY RAIL, MOTOR VEHICLE OR WATER.  SEC 410(C), 49 U.S.C. SEC 1010(C). 
BUT A FREIGHT FORWARDER MAY BE CONTROLLED BY SUCH A CARRIER, OR UNDER
COMMON CONTROL WITH IT, AND THE ACT SPECIFICALLY PROVIDES THAT THE
COMMISSION MAY NOT FOR THIS REASON DENY A PERMIT TO THE FREIGHT
FORWARDER.  IBID. 

IT IS OBVIOUS THAT THERE IS A GOOD DEAL OF OVERLAP BETWEEN THE WORK
OF THE FREIGHT FORWARDERS AND THAT OF THE OTHER COMMON CARRIERS.  THE
FREIGHT FORWARDERS' ARGUMENT HERE IS THAT THE ACT AUTHORIZES ONLY
FREIGHT FORWARDERS TO ENGAGE IN THE ASSEMBLY AND CONSOLIDATION OF
SHIPMENTS AND THE SUBSEQUENT USE OF RAIL FACILITIES FOR TRANSPORTATION,
AND THAT PERMITTING THE TRUCKERS TO ENGAGE IN THIS SORT OF SERVICE, BY
MEANS OF TOFC ON OPEN TARIFFS, IS TO AUTHORIZE THEM TO ENGAGE IN THIS
SERVICE IN VIOLATION OF THE ACT'S PROHIBITION AGAINST LICENSING OTHER
CARRIERS AS FREIGHT FORWARDERS. 

FORWARDERS ARE PRESENTLY PERMITTED TO UTILIZE RAILROAD OPEN-TARIFF
TOFC SERVICE.  MOVEMENT OF HIGHWAY TRAILERS BY RAIL, 293 I.C.C. 93, 111
(1954).  THEY MAY EVEN QUOTE TRAILER-LOAD RATES IN COMPETITION WITH
TRUCKERS AND WITH RAILS.  EASTERN EXPRESS, INC. V. UNITED STATES, 198
F. SUPP. 256 (D.C.S.D. IND.), AFF'D, 369 U.S. 37 (1962).  BUT
RAILROADS, WITHIN THEIR TERMINAL AREAS (SEC 202(C), 49 U.S.C. SEC
302(C)), AND TRUCKERS HAVE ALSO TRADITIONALLY ASSEMBLED, CONSOLIDATED,
AND DISTRIBUTED CARGO IN CONNECTION WITH PROVIDING THEIR AUTHORIZED
TRANSPORTATION SERVICES.  THE ACT EXPRESSLY EXEMPTS FROM THE FREIGHT
FORWARDER PROVISIONS ANY PERSON WHO PERFORMS THESE SERVICES - WHICH ARE
SIMILAR TO THOSE OF FREIGHT FORWARDERS - AS A CARRIER SUBJECT TO
ANOTHER PART OF THE ACT.  SEC 402(A)(5), 49 U.S.C.  SEC 1002(A)(5). 
THE HOUSE REPORT ON PART IV MAKES IT CLEAR THAT THE PART DOES NOT APPLY
"WITH RESPECT TO TRANSPORTATION PERFORMED BY  ...  MOTOR  ...  CARRIERS
IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE INTERSTATE COMMERCE
ACT."  H.R. REP. NO. 1172, 77TH CONG., 1ST SESS., P. 6 (1941). 

THE MERE FACT THAT THE TRUCKERS, BY REASON OF THE COMMISSION'S RULES
2 AND 3, MAY UTILIZE OPEN-TARIFF TOFC SERVICE, WHERE OFFERED GENERALLY,
CERTAINLY DOES NOT CONVERT THEIR ACTIVITY INTO FREIGHT FORWARDING, IN
CONFLICT WITH THE ACT.  IT IS CLEAR THAT WHERE THE RAILROAD AGREES, THE
TRUCKER MAY USE THIS SERVICE, AND THAT A MOTOR VEHICLE COMMON CARRIER
MAY ASSEMBLE, CONSOLIDATE, TRANSPORT BY PIGGYBACK IN THESE
CIRCUMSTANCES, AND DISTRIBUTE AFTER ARRIVAL AT THE RAILROAD TERMINUS. 
THE FACT THAT THE COMMISSION ENLARGES THIS ADDITIONAL POSSIBILITY OF
TRANSPORTATION OF THE TRUCKERS' TRAILERS MAY BE A COMPETITIVE FACT OF
SOME SIGNIFICANCE, BUT IT DOES NOT CONVERT THE TRUCKERS INTO FREIGHT
FORWARDERS, NOR DEPRIVE THE LATTER OF THE EXCLUSIVE RIGHTS SPECIFIED IN
THE ACT. 

        III. 

THE CONTROLLING FACT OF THE MATTER IS THAT ALL PIGGYBACK SERVICE IS,
BY ITS ESSENTIAL NATURE, BIMODAL.  (FN10)  IT PARTAKES OF BOTH THE
RAILROAD AND THE TRUCKING FUNCTIONS.  THE PROPER ALLOCATION OF THESE
BIMODAL FUNCTIONS INVOLVES COMPLEX CONSIDERATIONS.  IT IS NOT AND
CANNOT BE PRECISE OR MATHEMATICAL.  RAILROADS ARE NOT NOW CONFINED TO
THE RAILS.  THEY OPERATE TRUCKS.  THEY ARE PERMITTED TO ASSEMBLE CARGO
AND, IF THEY SO DESIRE, TO USE THEIR OWN TRUCKS OR SUBSIDIARY COMPANIES
TO DO SO.  SEC 202(C), 49 U.S.C. SEC 302(C).  TRUCKERS ARE NOT NOW
STRICTLY CONFINED TO THE HIGHWAY.  IN THE ABSENCE OF CONGRESSIONAL
DIRECTION, THERE IS NO BASIS FOR DENYING TO THE ICC THE POWER TO
ALLOCATE AND REGULATE TRANSPORTATION THAT PARTAKES OF BOTH ELEMENTS;
AND THERE IS NO BASIS WHATEVER FOR DENYING TO THE COMMISSION THE POWER
TO CARRY OUT ITS RESPONSIBILITIES UNDER THE NATIONAL TRANSPORTATION
POLICY, 54 STAT.  899 (1940), 49 U.S.C. PRECEDING SEC 1, TO "PROVIDE
FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES OF TRANSPORTATION
SUBJECT TO THE PROVISIONS OF THIS ACT, SO ADMINISTERED AS TO RECOGNIZE
AND PRESERVE THE INHERENT ADVANTAGES OF EACH  ...  TO THE END OF
DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION
SYSTEM BY WATER, HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO
MEET THE NEEDS OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL
SERVICE, AND OF THE NATIONAL DEFENSE."  (FN11)  THIS COURT HAS OBSERVED
THAT "THE NATIONAL TRANSPORTATION POLICY, FORMULATED BY CONGRESS,
SPECIFIES IN ITS TERMS THAT IT IS TO GOVERN THE COMMISSION IN THE
ADMINISTRATION AND ENFORCEMENT OF ALL PROVISIONS OF THE ACT," AND THE
COURT HAS STYLED THE NATIONAL TRANSPORTATION POLICY AS "THE YARDSTICK
BY WHICH THE CORRECTNESS OF THE COMMISSION'S ACTIONS WILL BE
MEASURED."  SCHAFFER TRANSP.  CO. V. UNITED STATES, 355 U.S. 83, 87-88
(1957).  HERE THE COMMISSION HAS FOUND THAT "THE INHERENT ADVANTAGES OF
EACH MODE OF TRANSPORTATION CAN BE GIVEN FREEST PLAY THROUGH THE
HIGHEST DEGREE OF COORDINATION, AND  ...  ENCOURAGEMENT OF SUCH
COORDINATION IS IN THE PUBLIC INTEREST."  322 I.C.C., AT 330.  THIS
CONCLUSION, AND ITS IMPLEMENTATION IN THE TOFC RULES, HAS OBVIOUS
IMPORTANCE TO "ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE" AND TO THE
"ESTABLISHMENT AND MAINTENANCE OF REASONABLE CHARGES FOR TRANSPORTATION
SERVICES," WHICH ARE MANDATES OF THE NATIONAL TRANSPORTATION POLICY. 
WE CANNOT SUSTAIN THE DISTRICT COURT'S RULING THAT THE COMMISSION
LACKED POWER TO PROMULGATE THE RULES HERE IN ISSUE. 

ACCORDINGLY, THE DECISION BELOW IS REVERSED. 

FN1  322 I.C.C., AT 305.  THE COMMISSION OBSERVED, "THERE CAN BE
LITTLE DOUBT THAT PIGGYBACKING HAS BEEN A DECISIVE FACTOR IN RETURNING
TO THE RAILROADS A SUBSTANTIAL VOLUME OF TRAFFIC THAT PREVIOUSLY HAD
BEEN MOVING BY OTHER MODES OF TRANSPORTATION, PRIVATE AND FOR-HIRE." 
ID., AT 307.  IT FOUND THAT "IN 1957 A TOTAL OF 57 CLASS I RAILROADS
WERE PARTICIPATING IN TOFC TARIFFS; IN MID-1963 THERE WERE 100 CLASS I
ROADS DOING SO.  IN 1955, 32 RAILROADS REPORTED A TOTAL OF 168,150 TOFC
CARLOADINGS, FOR A WEEKLY AVERAGE OF 3,234.  IN 1959, 50 REPORTING
RAILROADS SHOWED TOTALS OF 415,156 ANNUAL AND 7,984 WEEKLY AVERAGE
CARLOADINGS FOR TOFC.  FOR 1963, 63 REPORTING RAILROADS INDICATED
CONTINUED GROWTH TO APPROXIMATELY 797,500 LOADED TOFC CARS, A WEEKLY
RATE OF APPROXIMATELY 12,700 (15,300) LOADINGS."  ID., AT 309. 

FN2  FOR A STATEMENT OF THE COMMISSION'S EARLIER POSITION, PRIOR TO
ENACTMENT OF PART II OF THE INTERSTATE COMMERCE ACT, SEE TRUCKS ON FLAT
CARS BETWEEN CHICAGO AND TWIN CITIES, 216 I.C.C. 435 (1936), WHERE IT
WAS HELD THAT MOTOR CARRIERS, LIKE ANY OTHER COMPETING MODE OF
UNREGULATED TRANSPORTATION (COMPARE ICC V. DELAWARE, L.&W.R. CO., 220
U.S. 235 (1911)), WERE ENTITLED TO UTILIZE A PUBLISHED PIGGYBACK
TARIFF. 

FN3  SECTION 1(4) OF THE ACT, 49 U.S.C. SEC 1(4), IMPOSES A DUTY ON
RAILROADS TO ESTABLISH JOINT THROUGH ROUTES AND RATES WITH WATER
CARRIERS, BUT THERE IS NO SUCH PROVISION WITH RESPECT TO MOTOR
CARRIERS.  SEE SEC. 216(C), 49 U.S.C. SEC. 316(C). 

FN4  CF. GORDON'S TRANSPORTS, INC. V. STRICKLAND TRANSP.  CO., 318
I.C.C. 395, 396-397, SUSTAINED SUB NOM. STRICKLAND TRANSPORTATION CO.
V. UNITED STATES, 219 F. SUPP. 618, 620 (D.C.N.D. TEX. 1963). 

FN5 THERE IS "NO PLAN I SERVICE OF ANY TYPE AVAILABLE BETWEEN MIDWEST
POINTS EAST OF THE TIER OF STATES OF WYOMING, COLORADO, AND NEW MEXICO,
ON THE ONE HAND, AND, ON THE OTHER HAND, POINTS IN THE STATES WEST
THEREOF.  TRANSCONTINENTAL RAILROADS OPERATING BETWEEN THE LATTER
POINTS HAVE ELECTED NOT TO OFFER ANY FORM OF PLAN I SERVICE TO MOTOR
CARRIERS BETWEEN SUCH POINTS."  PACIFIC INTERMOUNTAIN EXPRESS CO.,
SUPPLEMENTAL STATEMENT OF W.S. PILLING (R. 123).    FN6  SEE, E.G.,
GREAT WESTERN R. CO. V. SUTTON, L.R. 4 H.L. 226 (1869); LONDON & N.W.R.
CO. V. EVERSHED, 3 APP. CAS. 1029 (1878); WIGHT V. UNITED STATES, 167
U.S. 512 (1897); ICC V. BALTIMORE & O.R. CO., 225 U.S. 326 (1912);
LOUISVILLE & N.R. CO. V. UNITED STATES, 282 U.S. 740 (1931); KANSAS
CITY S.R. CO. V. UNITED STATES, 282 U.S. 760 (1931); ICC V. DELAWARE,
L.&W.R. CO., 220 U.S. 235 (1911); UNITED STATES V. CHICAGO HEIGHTS
TRUCKING CO., 310 U.S. 344 (1940). 

FN7  A SUIT ATTACKING THE VALIDITY OF PLAN I SERVICE IS PENDING. 
LONE STAR PACKAGE CAR CO. V. UNITED STATES, CIV. NO. 4-355 (D.C.N.D.
TEX.). 

FN8  IN IMPORTANT RESPECTS, MOTOR CARRIER USE OF OPEN-TARIFF TOFC
DIFFERS FROM A MOTOR-RAIL THROUGH ROUTE-JOINT RATE TOFC ARRANGEMENT. 
HENCE THE DISTRICT COURT'S EXCEPTION FOR OPEN-TARIFF TOFC WHERE THE
RAILROAD CONSENTS CANNOT BE JUSTIFIED AS BASED UPON THE VOLUNTARY
THROUGH ROUTE AND JOINT RATE PROVISION OF THE ACT.  SEC 216(C), 49
U.S.C. SEC 316(C). 

FN9  IT SHOULD ALSO BE NOTED THAT THE LEGISLATION PROPOSED BY THE ICC
ITSELF (S. 3510 AND H.R. 12362, 87TH CONG., 2D SESS. (1962); S. 676 AND
H.R. 2088, 88TH CONG., 1ST SESS. (1963)) WOULD HAVE REQUIRED RAILROADS
TO ESTABLISH MOTOR-RAIL THROUGH ROUTES AND JOINT RATES AND GRANTED THE
COMMISSION POWER TO COMPEL SUCH ARRANGEMENTS - WHICH IS QUITE DIFFERENT
FROM ENTITLING MOTOR CARRIERS TO USE RAILROAD OPEN TARIFFS. 

FN10  AS THE ICC OBSERVED:  "WHAT THOSE WHO OBJECT TO OPEN-TARIFF
TOFC OVERLOOK IS THAT ALL TOFC SERVICE IS INHERENTLY BIMODAL IN THAT
ITS BASIC CHARACTERISTIC IS THE COMBINATION OF THE INHERENT ADVANTAGES
OF RAIL AND MOTOR TRANSPORTATION  ...  ."  322 I.C.C., AT 329.  THUS,
THE DISTRICT COURT'S VIEW OF THE STATUTORY COMPARTMENTALIZATION OF
TRANSPORTATION AS EITHER RAIL OR MOTOR OR WATER, FAILS TO RECOGNIZE THE
PRIMARY FACT ABOUT TOFC, WHICH IN ANY OF ITS VARIETIES CANNOT BE MADE
TO FIT THE DISTRICT COURT'S RIGID MODAL CONCEPTUALIZATION. 

FN11  CF. UNITED STATES V. ROCK ISLAND CO., 340 U.S. 419, 433 (1951):
"COMPLETE RAIL DOMINATION OVER MOTOR TRANSPORTATION WAS NOT ENVISAGED
AS A WAY TO PRESERVE THE INHERENT ADVANTAGES OF EACH FORM OF
TRANSPORTATION." 

MR. JUSTICE BLACK AND MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT
OF THE DISTRICT COURT FOR THE REASONS STATED IN THE OPINION OF DISTRICT
COURT JUDGE HOFFMAN REPORTED AT 244 F. SUPP. 955, 961-964. 

MR. JUSTICE HARLAN, FINDING IT IMPOSSIBLE TO ESCAPE THE IMPACT OF THE
PROVISO TO SEC 3(1) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC 3(1),
WOULD, FOR REASONS ELABORATED IN THE PORTION OF JUDGE HOFFMAN'S OPINION
DEALING WITH THAT POINT, 244 F. SUPP. 955, AT 961-964, AFFIRM THE
JUDGMENT OF THE DISTRICT COURT. 
..END :
























STOECKLE V. WOLKE 387 U.S. 423 


NO. 1557, MISC.  DECIDED MAY 29, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


STOECKLE V. WOLKE. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SWEET BRIAR V. BUTTON 387 U.S. 423 


NO. 1106.  DECIDED MAY 29, 1967.  - REVERSED AND REMANDED. 


SWEET BRIAR INSTITUTE V. BUTTON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF VIRGINIA IS REVERSED.   ENGLAND V. LOUISIANA STATE BOARD OF
MEDICAL EXAMINERS, 375 U.S. 411 (1964).  THE CASE IS REMANDED FOR
CONSIDERATION ON THE MERITS.  SECTION 202 OF THE CIVIL RIGHTS ACT OF
1964, 78 STAT. 244, 42 U.S.C. SEC 2000A-1.  KLINE V. BURKE CONSTRUCTION
CO., 260 U.S. 226. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART WOULD AFFIRM THE
JUDGMENT. 
..END :










CEPERO V. PUERTO RICO 387 U.S. 424 


NO. 1565, MISC.  DECIDED MAY 29, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


CEPERO V. INDUSTRIAL COMMISSION OF PUERTO RICO. 

APPEAL FROM THE SUPREME COURT OF PUERTO RICO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















UNITED STATES V. CONTINENTAL OIL CO. 387 U.S. 424 


NO. 450.  DECIDED MAY 29, 1967.  - VACATED AND REMANDED. 


UNITED STATES V. CONTINENTAL OIL CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO FOR FURTHER CONSIDERATION
IN LIGHT OF UNITED STATES V. PABST BREWING CO., 384 U.S. 546. 
..END :
















CEPERO V. COLON 387 U.S. 425 


NO. 1606, MISC.  DECIDED MAY 29, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


CEPERO V. COLON ET AL. 

APPEAL FROM THE SUPREME COURT OF PUERTO RICO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MARKIS V. UNITED STATES 387 U.S. 425 


NO. 43.  DECIDED MAY 29, 1967.* - CERTIORARI GRANTED; NO. 43, 352 F.2D
860, NO. 64, 353 F.2D 672, VACATED AND REMANDED. 

*TOGETHER WITH NO. 64, MORETTI V. UNITED STATES, ALSO ON PETITION FOR
WRIT OF CERTIORARI TO THE SAME COURT. 


MARKIS V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, THE JUDGMENTS
VACATED AND THE CASES REMANDED TO THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF CONNECTICUT FOR A NEW TRIAL, SHOULD THE GOVERNMENT SEEK
TO PROSECUTE PETITIONERS ANEW.  NARDONE V. UNITED STATES, 302 U.S. 379;
NARDONE V. UNITED STATES, 308 U.S. 338. 
..END :










DELANEY V. FLORIDA 387 U.S. 426 


NO. 1213.  DECIDED MAY 29, 1967.  - 190 SO. 2D 578, APPEAL DISMISSED. 


DELANEY V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION.  MR. JUSTICE DOUGLAS IS OF THE
OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :

















PATTERSON V. VIRGINIA ELECTRIC 387 U.S. 426 


NO. 1572, MISC.  DECIDED MAY 29, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


PATTERSON ET AL. V. VIRGINIA ELECTRIC & POWER CO. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SCHACKMAN V. ARNEBERGH 387 U.S. 427 


NO. 1186.  DECIDED MAY 29, 1967.  - 258 F. SUPP. 983, 996, APPEAL
DISMISSED. 


SCHACKMAN ET AL. V. ARNEBERGH, CITY ATTORNEY FOR THE CITY OF LOS
ANGELES, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT
OF CALIFORNIA. 

PER CURIAM. 

APPELLANTS SEEK REVIEW BY THIS COURT OF THE REFUSAL BY THE DISTRICT
COURT TO CONVENE A THREE-JUDGE DISTRICT COURT PURSUANT TO 28 U.S.C.
SECS 2281-2284.  WE HAVE HELD THAT SUCH REVIEW IS AVAILABLE IN THE
COURT OF APPEALS, IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN, 370 U.S.
713, AND NOT IN THIS COURT.  BUCHANAN V. RHODES, 385 U.S. 3. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR LACK
OF JURISDICTION. 
..END :









MOODY V. FLOWERS 387 U.S. 97 


NO. 624.  ARGUED APRIL 17-18, 1967.  - DECIDED MAY 22, 1967.* - NO. 624,
256 F. SUPP.  195; AND NO. 491, 256 F. SUPP. 617, VACATED AND
REMANDED. 

*TOGETHER WITH NO. 491, BOARD OF SUPERVISORS OF SUFFOLK COUNTY ET AL.
V. BIANCHI ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NEW YORK. 


THESE CASES INVOLVE ATTACKS ON STATE STATUTES ON THE GROUND THAT THEY
CAUSE MALAPPORTIONMENT IN THE ESTABLISHMENT OF LOCAL UNITS GOVERNED BY
ELECTED BODIES.  IN NO. 624, APPELLANTS SUED STATE OFFICERS AND OTHERS
SEEKING TO ENJOIN ENFORCEMENT OF AN ALABAMA STATUTE WHICH PRESCRIBES
THE APPORTIONMENT AND DISTRICTING SCHEME FOR ELECTING MEMBERS OF
HOUSTON COUNTY'S GOVERNING BOARD AND ALLEGEDLY CAUSES
OVERREPRESENTATION OF CERTAIN AREAS AND UNDERREPRESENTATION OF OTHERS. 
IN NO. 491, APPELLEES SUED THE MEMBERS OF THE SUFFOLK COUNTY BOARD OF
SUPERVISORS SEEKING TO ENJOIN ENFORCEMENT OF COUNTY CHARTER PROVISIONS
SPECIFYING THAT THE COUNTY'S GOVERNING BOARD SHALL BE COMPOSED OF THE
SUPERVISORS OF ITS 10 TOWNS (WHICH VARY IN POPULATION) EACH OF WHOM
SHALL HAVE ONE VOTE.  IN BOTH CASES, THREE-JUDGE DISTRICT COURTS WERE
CONVENED UNDER 28 U.S.C. SEC 2281, WHICH REQUIRES A THREE-JUDGE COURT
WHERE AN INJUNCTION IS SOUGHT TO RESTRAIN THE OPERATION OF A STATE
STATUTE.  FROM THE DISMISSAL OF THE COMPLAINT IN NO. 624, AND THE
JUDGMENT INVALIDATING ON EQUAL-PROTECTION GROUNDS THE STATUTE IN NO.
491, APPEALS WERE TAKEN.  HELD: 

1.  THE "STATUTE" IN EACH OF THESE CASES IS ONE OF LIMITED
APPLICATION CONCERNING ONLY A PARTICULAR COUNTY; HENCE A THREE-JUDGE
COURT WAS IMPROPERLY CONVENED UNDER 28 U.S.C. SEC 2281 AND EACH APPEAL
SHOULD HAVE BEEN TAKEN TO THE APPROPRIATE COURT OF APPEALS, NOT TO THIS
COURT.  PP. 101-104. 

(A)  THE PURPOSE OF SEC 2281 IS TO PREVENT A SINGLE JUDGE FROM
PARALYZING AN ENTIRE REGULATORY SCHEME ON A STATEWIDE BASIS BY ISSUING
A BROAD INJUNCTION ORDER.  P. 101. 

(B)  SECTION 2281 DOES NOT APPLY TO LOCAL ORDINANCES OR RESOLUTIONS,
SUCH AS THOSE INVOLVED IN THESE CASES OR OPERATE AGAINST STATE OFFICERS
LIKE THOSE HERE WHO PERFORM MATTERS OF ONLY LOCAL CONCERN.  PP. 101
102. 

(C)  A LOCAL DEVICE, LIKE THE ONE IN NO. 624, DOES NOT ASSUME
STATEWIDE SIGNIFICANCE FOR PURPOSES OF DETERMINING THREE-JUDGE COURT
JURISDICTION BECAUSE OTHER LOCAL DEVICES MAY WORK TOWARD THE SAME END. 
P. 102. 

(D)  THE COUNTY CHARTER, IN NO. 491, IS SIMILAR TO A LOCAL ORDINANCE,
AND ITS CHARACTER IS NOT CHANGED BECAUSE IT IS ENACTED INTO STATE LAW. 
THOUGH THE ALLEGED MALAPPORTIONMENT REFLECTED IN THAT CHARTER IS ALSO
REFLECTED IN OTHER STATUTORY PROVISIONS HAVING STATEWIDE APPLICATION,
THE COMPLAINT CHALLENGED AND THE THREE-JUDGE COURT CONSIDERED ONLY THE
CHARTER AND NOT STATEWIDE LAW.  PP. 102-104. 

2.  SINCE THE TIME FOR PERFECTING APPEALS TO THE RESPECTIVE COURTS OF
APPEALS MAY HAVE PASSED, THE JUDGMENTS ARE VACATED AND REMANDED FOR THE
ENTRY OF FRESH DECREES TO FACILITATE TIMELY APPEALS.  P. 104. 

MOODY ET AL. V. FLOWERS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF ALABAMA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE THRESHOLD QUESTION IN THESE CASES IS WHETHER THIS COURT HAS
JURISDICTION UNDER 28 U.S.C. SEC 1253 ON DIRECT APPEALS FROM THE
DECISIONS OF THE RESPECTIVE DISTRICT COURTS PURPORTEDLY CONVENED
PURSUANT TO 28 U.S.C. SEC 2281.  THE ANSWER TO THAT QUESTION IN TURN
DEPENDS UPON WHETHER THE THREE-JUDGE COURTS IN THESE CASES WERE
PROPERLY CONVENED. 

IN NO. 624, APPELLANTS ATTACK THE VALIDITY OF AN ALABAMA STATUTE
(ALA. LAWS 1957, ACT NO. 9, P. 30) PRESCRIBING THE APPORTIONMENT AND
DISTRICTING SCHEME FOR ELECTING MEMBERS OF THE HOUSTON COUNTY BOARD OF
REVENUE AND CONTROL.  UNDER THE STATUTE, THE BOARD CONSISTS OF FIVE
MEMBERS, EACH ELECTED BY THE QUALIFIED ELECTORS OF THE DISTRICT OF
WHICH HE IS A RESIDENT.  THE CHALLENGED STATUTE PRESCRIBES THE AREAS
CONSTITUTING THE VARIOUS DISTRICTS.  THE ACTION IS BROUGHT AGAINST THE
APPELLEES, INCLUDING SOME STATE OFFICIALS, SEEKING A DECLARATION THAT
THE STATUTE IS INVALID AND AN INJUNCTION PROHIBITING ITS ENFORCEMENT,
AND REQUESTING THAT THE COURT ORDER AT-LARGE ELECTIONS UNTIL THE STATE
LEGISLATURE REDISTRICTS AND REAPPORTIONS THE BOARD ON A POPULATION
BASIS.  THE THEORY IS THAT THE APPORTIONMENT AND DISTRICTING SCHEME
RESULTS IN THE OVERREPRESENTATION OF CERTAIN AREAS AND THE
UNDERREPRESENTATION OF OTHERS.  THE COMPLAINT ALSO REQUESTED THE
CONVENING OF A THREE-JUDGE COURT.  A THREE-JUDGE COURT WAS CONVENED AND
THE COMPLAINT WAS DISMISSED.  256 F. SUPP. 195.  WE NOTED PROBABLE
JURISDICTION, 385 U.S. 966. 

IN NO. 491, APPELLEES BROUGHT AN ACTION AGAINST APPELLANTS, MEMBERS
OF THE SUFFOLK COUNTY BOARD OF SUPERVISORS, SEEKING A DECLARATION THAT
SO MUCH OF SEC 203 OF THE SUFFOLK COUNTY CHARTER (N.Y. LAWS 1958, C.
278) AS PROVIDES THAT EACH SUPERVISOR SHALL HAVE ONE VOTE AS A MEMBER
OF THE SUFFOLK COUNTY BOARD OF SUPERVISORS VIOLATES THE FOURTEENTH
AMENDMENT AND AN INJUNCTION PROHIBITING THE APPELLANTS FROM ACTING AS A
BOARD OF SUPERVISORS UNLESS AND UNTIL A CHANGE IN THEIR VOTING STRENGTH
IS MADE, AND REQUESTING THE CONVENING OF A THREE-JUDGE COURT.  THE 10
TOWNS OF SUFFOLK COUNTY, NEW YORK, ELECT, BY POPULAR VOTE, A SUPERVISOR
EVERY TWO YEARS.  THE SUPERVISOR IS THE TOWN'S REPRESENTATIVE ON THE
SUFFOLK COUNTY BOARD OF SUPERVISORS.  SUFFOLK COUNTY CHARTER SEC 201. 
AND, EACH SUPERVISOR IS ENTITLED TO ONE VOTE ON THE COUNTY BOARD OF
SUPERVISORS.  SUFFOLK COUNTY CHARTER SEC 203.  PURSUANT TO ART. 9, SECS
1 AND 2, OF THE NEW YORK CONSTITUTION, THE STATE LEGISLATURE APPROVED A
CHARTER FOR THE COUNTY CONTAINING, INTER ALIA, THE ABOVE PROVISIONS. 
N.Y. LAWS 1958, C. 278. 

APPELLEES CLAIM THAT GRANTING EACH SUPERVISOR ONE VOTE REGARDLESS OF
THE POPULATION OF THE TOWN WHICH ELECTED HIM RESULTS IN AN
OVERREPRESENTATION OF THE TOWNS WITH SMALL POPULATIONS AND
UNDERREPRESENTATION OF TOWNS WITH LARGE POPULATIONS. 

A THREE-JUDGE COURT WAS CONVENED AND IT DECLARED SEC 203 OF THE
SUFFOLK COUNTY CHARTER INVALID BECAUSE IN CONFLICT WITH THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, AND ORDERED THE BOARD TO
SUBMIT TO THE COUNTY ELECTORATE A PLAN FOR RECONSTRUCTION OF THE BOARD
SO AS TO INSURE VOTER EQUALITY.  256 F. SUPP. 617.  WE NOTED PROBABLE
JURISDICTION.  385 U.S. 966. 

THIS COURT HAS JURISDICTION OF THESE DIRECT APPEALS UNDER 28 U.S.C.
SEC 1253 ONLY IF THE RESPECTIVE ACTIONS WERE "REQUIRED  ...  TO BE
HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES."  SECTION
2281 OF 28 U.S.C. REQUIRES THAT A THREE-JUDGE COURT BE CONVENED IN ANY
CASE IN WHICH A PRELIMINARY OR PERMANENT INJUNCTION IS SOUGHT TO
RESTRAIN "THE ENFORCEMENT, OPERATION OR EXECUTION OF ANY STATE STATUTE
BY RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN THE
ENFORCEMENT OR EXECUTION OF SUCH STATUTE  ...  ."  THE PURPOSE OF SEC
2281 IS "TO PREVENT A SINGLE FEDERAL JUDGE FROM BEING ABLE TO PARALYZE
TOTALLY THE OPERATION OF AN ENTIRE REGULATORY SCHEME  ... BY ISSUANCE
OF A BROAD INJUNCTIVE ORDER" (KENNEDY V. MENDOZA-MARTINEZ, 372 U.S.
144, 154) AND TO PROVIDE "PROCEDURAL PROTECTION AGAINST AN IMPROVIDENT
STATE-WIDE DOOM BY A FEDERAL COURT OF A STATE'S LEGISLATIVE POLICY." 
PHILLIPS V. UNITED STATES, 312 U.S. 246, 251.  IN ORDER FOR SEC 2281 TO
COME INTO PLAY THE PLAINTIFFS MUST SEEK TO ENJOIN STATE STATUTES "BY
WHATEVER METHOD THEY MAY BE ADOPTED, TO WHICH A STATE GIVES HER
SANCTION  ...  ."  AMERICAN FEDERATION OF LABOR V. WATSON, 327 U.S.
582, 592-593. 

THE COURT HAS CONSISTENTLY CONSTRUED THE SECTION AS AUTHORIZING A
THREE-JUDGE COURT NOT MERELY BECAUSE A STATE STATUTE IS INVOLVED BUT
ONLY WHEN A STATE STATUTE OF GENERAL AND STATEWIDE APPLICATION IS
SOUGHT TO BE ENJOINED.  SEE, E.G., EX PARTE COLLINS, 277 U.S. 565; EX
PARTE PUBLIC NATIONAL BANK, 278 U.S. 101; RORICK V. BOARD OF
COMMISSIONERS, 307 U.S. 208; CLEVELAND V. UNITED STATES, 323 U.S. 329,
332; GRIFFIN V. SCHOOL BOARD, 377 U.S. 218, 227-228.  THE TERM
"STATUTE" IS SEC 2281 DOES NOT ENCOMPASS LOCAL ORDINANCES OR
RESOLUTIONS.  THE OFFICER SOUGHT TO BE ENJOINED MUST BE A STATE
OFFICER; A THREE-JUDGE COURT NEED NOT BE CONVENED WHERE THE ACTION
SEEKS TO ENJOIN A LOCAL OFFICER (EX PARTE COLLINS, SUPRA; RORICK V.
BOARD OF COMMISSIONERS, SUPRA) UNLESS HE IS FUNCTIONING PURSUANT TO A
STATEWIDE POLICY AND PERFORMING A STATE FUNCTION.  SPIELMAN MOTOR SALES
CO. V. DODGE, 295 U.S. 89.  NOR DOES THE SECTION COME INTO OPERATION
WHERE AN ACTION IS BROUGHT AGAINST STATE OFFICERS PERFORMING MATTERS OF
PURELY LOCAL CONCERN.  RORICK V. BOARD OF COMMISSIONERS, SUPRA.  AND,
THE REQUIREMENT THAT THE ACTION SEEK TO ENJOIN A STATE OFFICER CANNOT
BE CIRCUMVENTED "BY JOINING, AS NOMINAL PARTIES DEFENDANT, STATE
OFFICERS WHOSE ACTION IS NOT THE EFFECTIVE MEANS OF THE ENFORCEMENT OR
EXECUTION OF THE CHALLENGED STATUTE."  WILENTZ V. SOVEREIGN CAMP, 306
U.S. 573, 579-580. 

IN NO. 624, THE CONSTITUTIONAL ATTACK WAS DIRECTED TO A STATE STATUTE
DEALING WITH MATTERS OF LOCAL CONCERN - THE APPORTIONMENT AND
DISTRICTING FOR ONE COUNTY'S GOVERNING BOARD.  THE STATUTE IS NOT A
STATUTE OF STATEWIDE APPLICATION, BUT RELATES SOLELY TO THE AFFAIRS OF
ONE COUNTY IN THE STATE.  THE FACT THAT STATE OFFICERS WERE NAMED AS
DEFENDANTS CANNOT CHANGE THE RESULT. 

IT IS SAID THAT THERE IS ENOUGH SIMILARITY BETWEEN THIS LAW AND THE
LAWS GOVERNING OTHER ALABAMA COUNTIES AS TO GIVE THIS CASE A STATEWIDE
INTEREST.  IT IS SAID THAT 29 COUNTIES HAVING A CITY OF CONSEQUENCE
LOCATED WITHIN THEIR BORDERS HAVE THE SAME "CRAZY QUILT" OF
MALAPPORTIONMENT TO INSURE RURAL VOTERS' CONTROL.  IT IS SAID THAT 32
OTHER COUNTIES PROVIDE FOR ELECTION OF COUNTY BOARD MEMBERS AT LARGE
BUT WITH A LOCAL RESIDENCE REQUIREMENT WHICH INSURES RURAL CONTROL.  IT
IS SAID THAT SIX RURAL COUNTIES ELECT THEIR GOVERNING BODIES ON AN AT
LARGE BASIS WITH NO LOCAL RESIDENCE REQUIREMENT.  WE INDICATE NO VIEWS
ON THE MERITS.  BUT WE DO SUGGEST THAT EVEN A VARIETY OF DIFFERENT
DEVICES, WORKING PERHAPS TO THE SAME END, STILL LEAVES ANY ONE DEVICE
LOCAL RATHER THAN STATEWIDE FOR PURPOSES OF THE STATUTORY THREE-JUDGE
COURT. 

IN NO. 491, THE CONSTITUTIONAL ATTACK IS DIRECTED AT PROVISIONS OF A
COUNTY CHARTER PROVIDING THAT THE COUNTY GOVERNING BOARD SHALL BE
COMPOSED OF THE SUPERVISORS OF THE SEVERAL TOWNS AND THAT EACH
SUPERVISOR SHALL HAVE ONE VOTE.  THE COUNTY CHARTER IS SIMILAR TO A
LOCAL ORDINANCE, A CHALLENGE TO WHICH CANNOT SUPPORT A THREE-JUDGE
COURT.  THE FACT THAT THE CHARTER WAS ENACTED INTO STATE LAW DOES NOT
CHANGE THE RESULT.  THE CHARTER PROVISIONS PLAINLY RELATE ONLY TO ONE
COUNTY AND THE STATUTE ENACTING THE CHARTER IS SIMILARLY LIMITED.  IT
DOES NOT REMOTELY RESEMBLE A STATE STATUTE OF GENERAL, STATEWIDE
APPLICATION.  IT IS A STATUTE DEALING SOLELY WITH MATTERS OF LOCAL
CONCERN.  NOR WAS THE ACTION BROUGHT AGAINST "STATE OFFICERS" WITHIN
THE MEANING OF THE STATUTE; IT WAS BROUGHT TO ENJOIN LOCAL OFFICERS
ACTING SOLELY WITH REFERENCE TO LOCAL MATTERS. 

IT IS ARGUED, HOWEVER, THAT THE ALLEGED MALAPPORTIONMENT REFLECTED IN
THE CHARTER IS ALSO REFLECTED IN SEC 150 AND SEC 153 OF THE NEW YORK
COUNTY LAW, WHICH DOES HAVE A STATEWIDE APPLICATION, AND THAT THE
PROVISIONS OF THE CHARTER HERE CHALLENGED ARE ACTUALLY INTERCHANGEABLE
WITH SEC 150 AND SEC 153 OF THE COUNTY LAW.  (FN1)  IT IS ALSO ARGUED
THAT TO GET RID OF THIS ALLEGED MALAPPORTIONMENT THE COURT WOULD HAVE
TO DECLARE UNCONSTITUTIONAL NOT ONLY THE PROVISIONS OF THE CHARTER BUT
ALSO SEC 150 AND SEC 153 OF THE COUNTY LAW.  THE COMPLAINT, HOWEVER,
CHALLENGES ONLY THE CHARTER.  IT MAKES NO CHALLENGE OF ANY STATEWIDE
LAW.  AND THE THREE-JUDGE COURT CONSIDERED IT AS AN ATTACK ONLY ON THE
CHARTER.  256 F. SUPP. 617.  (FN2) 

WE THEREFORE DO NOT ACCEPT THE INVITATION TO GET INTO THE NICETIES OF
THE RELATIONSHIP BETWEEN THE PROVISIONS OF THE CHARTER AND THE NEW YORK
COUNTY LAW, BUT TAKE THE COMPLAINT AS WE FIND IT FOR PURPOSES OF THE
JURISDICTIONAL QUESTION, AND CONCLUDE ON THE FACE OF THE COMPLAINT THAT
WE HAVE ONLY AN ALLEGED MALAPPORTIONMENT UNDER A COUNTY CHARTER. 

SINCE THE "STATUTE" IN EACH OF THESE CASES IS ONE OF LIMITED
APPLICATION, CONCERNING ONLY A PARTICULAR COUNTY INVOLVED IN THE
LITIGATION, A THREE-JUDGE COURT WAS IMPROPERLY CONVENED.  APPEALS
SHOULD, THEREFORE, HAVE BEEN TAKEN TO THE RESPECTIVE COURTS OF APPEALS,
NOT TO THIS COURT.  SINCE THE TIME FOR PERFECTING THOSE APPEALS MAY
HAVE PASSED, WE VACATE THE JUDGMENTS AND REMAND THE CAUSES TO THE COURT
WHICH HEARD EACH CASE SO THAT THEY MAY ENTER A FRESH DECREE FROM WHICH
APPELLANTS MAY, IF THEY WISH, PERFECT TIMELY APPEALS TO THE RESPECTIVE
COURTS OF APPEALS.  PHILLIPS V. UNITED STATES, SUPRA, AT 254.  DECREES
VACATED. 

FN1  SECTION 150 OF THE N.Y. COUNTY LAW (1950) PROVIDES THAT "THE
SUPERVISORS OF THE SEVERAL CITIES AND TOWNS IN EACH COUNTY  ...  SHALL
CONSTITUTE THE BOARD OF SUPERVISORS OF THE COUNTY" AND SEC 153 SUBD. 4
PROVIDES FOR A MAJORITY VOTE OF THE SUPERVISORS WITH RESPECT TO ACTIONS
OF THE BOARD OF SUPERVISORS WHERE "NO PROPORTION OF THE VOTING STRENGTH
FOR SUCH ACTION IS OTHERWISE PRESCRIBED."   BUT SEC 2 OF THE N.Y.
COUNTY LAW PROVIDES THAT THE PROVISIONS OF THE LAW SHALL NOT APPLY "IN
SO FAR AS THEY ARE IN CONFLICT WITH OR IN LIMITATION OF A PROVISION OF
ANY ALTERNATIVE FORM OF COUNTY GOVERNMENT  ...  ADOPTED BY A COUNTY
PURSUANT TO SECTION TWO OF ARTICLE NINE OF THE CONSTITUTION, OR ANY
...  COUNTY GOVERNMENT LAW OR CIVIL DIVISIONS ACT ENACTED BY THE
LEGISLATURE AND APPLICABLE TO SUCH COUNTY  ... , OR IN CONFLICT WITH
ANY LOCAL LAW  ...  ADOPTED BY A COUNTY UNDER AN OPTIONAL OR
ALTERNATIVE FORM OF COUNTY GOVERNMENT  ...  UNLESS A CONTRARY INTENT IS
EXPRESSLY STATED IN THE LAW." 

FN2  AND SEE BIANCHI V. GRIFFING, 238 F. SUPP. 997, WHERE THE THREE
JUDGE COURT IN THIS CASE DENIED THE MOTION TO DISMISS AND DENIED THE
MOTION FOR AN INJUNCTION AGAINST THE CONTINUED OPERATION OF THE BOARD,
PENDING LEGISLATIVE OR OTHER POLITICAL ACTION TO CORRECT THE ALLEGED
MALAPPORTIONMENT. 
..END :



SAILORS V. BOARD OF EDUCATION 387 U.S. 105 


NO. 430.  ARGUED APRIL 17-18, 1967.  - DECIDED MAY 22, 1967.  - 254 F.
SUPP. 17, AFFIRMED. 


APPELLANTS BROUGHT THIS SUIT SEEKING, INTER ALIA, TO ENJOIN AS
VIOLATIVE OF THE FOURTEENTH AMENDMENT ENFORCEMENT OF A MICHIGAN STATUTE
UNDER WHICH APPELLEE SCHOOL BOARD AND OTHER COUNTY SCHOOL BOARDS ARE
CHOSEN - NOT BY THE ELECTORS OF THE COUNTY, BUT BY DELEGATES FROM THE
LOCAL BOARDS FROM CANDIDATES NOMINATED BY SCHOOL ELECTORS.  A THREE
JUDGE DISTRICT COURT, REJECTING APPELLANTS' CONTENTION THAT THE SYSTEM
PARALLELED THE COUNTY-UNIT SYSTEM INVALIDATED IN GRAY V. SANDERS, 372
U.S. 368, DISMISSED THE COMPLAINT.  HELD: 

1.  A THREE-JUDGE COURT WAS PROPERLY CONVENED SINCE THE CHALLENGED
STATUTE HAS GENERAL AND STATEWIDE APPLICATION.  MOODY V. FLOWERS, ANTE,
P. 97, DISTINGUISHED.  P. 107. 

2.  THERE IS NO CONSTITUTIONAL REASON WHY NONLEGISLATIVE STATE OR
LOCAL OFFICIALS MAY NOT BE CHOSEN OTHERWISE THAN BY ELECTIONS.  THE
FUNCTIONS OF APPELLEE SCHOOL BOARD ARE ESSENTIALLY ADMINISTRATIVE AND
THE ELECTIVE-APPOINTIVE SYSTEM USED TO SELECT ITS MEMBERS IS WELL
WITHIN THE STATE'S LATITUDE IN THE SELECTION OF SUCH OFFICIALS.  PP.
107-111. 

SAILORS ET AL. V. BOARD OF EDUCATION OF THE COUNTY OF KENT ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF MICHIGAN. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, QUALIFIED AND REGISTERED ELECTORS OF KENT COUNTY,
MICHIGAN, BROUGHT THIS SUIT IN THE FEDERAL DISTRICT COURT TO ENJOIN THE
BOARD OF EDUCATION OF KENT COUNTY FROM DETACHING CERTAIN SCHOOLS FROM
THE CITY OF GRAND RAPIDS AND ATTACHING THEM TO KENT COUNTY, TO DECLARE
THE COUNTY BOARD TO BE UNCONSTITUTIONALLY CONSTITUTED, AND TO ENJOIN
FURTHER ELECTIONS UNTIL THE ELECTORAL SYSTEM IS REDESIGNED.  ATTACK IS
ALSO MADE ON THE ADEQUACY OF THE STATUTORY STANDARDS GOVERNING
DECISIONS OF THE COUNTY BOARD IN LIGHT OF THE REQUIREMENTS OF DUE
PROCESS.  WE NEED NOT BOTHER WITH THE INTRICATE PROBLEMS OF STATE LAW
INVOLVED IN THE DISPUTE.  FOR THE FEDERAL POSTURE OF THE CASE IS A VERY
LIMITED ONE.  THE PEOPLE OF MICHIGAN (QUALIFIED SCHOOL ELECTORS) ELECT
THE LOCAL SCHOOL BOARDS.  (FN1)  NO CONSTITUTIONAL QUESTION IS
PRESENTED AS RESPECTS THOSE ELECTIONS.  THE ALLEGED CONSTITUTIONAL
QUESTIONS ARISE WHEN IT COMES TO THE COUNTY SCHOOL BOARD.  IT IS
CHOSEN, NOT BY THE ELECTORS OF THE COUNTY, BUT BY DELEGATES FROM THE
LOCAL BOARDS.  EACH BOARD SENDS A DELEGATE TO A BIENNIAL MEETING AND
THOSE DELEGATES ELECT A COUNTY BOARD OF FIVE MEMBERS, WHO NEED NOT BE
MEMBERS OF THE LOCAL BOARDS, (FN2) FROM CANDIDATES NOMINATED BY SCHOOL
ELECTORS.  IT IS ARGUED THAT THIS SYSTEM OF CHOOSING COUNTY BOARD
MEMBERS PARALLELS THE COUNTY-UNIT SYSTEM WHICH WE INVALIDATED UNDER THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT IN GRAY V. SANDERS,
372 U.S. 368, AND VIOLATES THE PRINCIPLE OF "ONE MAN, ONE VOTE" WHICH
WE HELD IN THAT CASE AND IN REYNOLDS V. SIMS, 377 U.S. 533, WAS
CONSTITUTIONALLY REQUIRED IN STATE ELECTIONS.  A VAST ARRAY OF FACTS IS
ASSEMBLED SHOWING ALLEGED INEQUITIES IN A SYSTEM WHICH GIVES ONE VOTE
TO EVERY LOCAL SCHOOL BOARD (IRRESPECTIVE OF POPULATION, WEALTH, ETC.)
IN THE SELECTION OF THE COUNTY BOARD.  A THREE-JUDGE COURT WAS
CONVENED, AND IT HELD BY A DIVIDED VOTE THAT THE METHOD OF CONSTITUTION
OF THE COUNTY BOARD DID NOT VIOLATE THE FOURTEENTH AMENDMENT.  254 F.
SUPP. 17.  WE NOTED PROBABLE JURISDICTION, 385 U.S. 966. 

WE CONCLUDE THAT A THREE-JUDGE COURT WAS PROPERLY CONVENED, FOR
UNLIKE THE SITUATION IN MOODY V. FLOWERS, ANTE, P. 97, THIS IS A CASE
WHERE THE STATE STATUTE THAT IS CHALLENGED (FN3) APPLIES GENERALLY TO
ALL MICHIGAN COUNTY SCHOOL BOARDS OF THE TYPE DESCRIBED. 

WE START WITH WHAT WE SAID IN REYNOLDS V. SIMS, SUPRA, AT 575: 

"POLITICAL SUBDIVISIONS OF STATES - COUNTIES, CITIES, OR WHATEVER -
NEVER WERE AND NEVER HAVE BEEN CONSIDERED AS SOVEREIGN ENTITIES. 
RATHER, THEY HAVE BEEN TRADITIONALLY REGARDED AS SUBORDINATE
GOVERNMENTAL INSTRUMENTALITIES CREATED BY THE STATE TO ASSIST IN THE
CARRYING OUT OF STATE GOVERNMENTAL FUNCTIONS.  AS STATED BY THE COURT
IN HUNTER V. CITY OF PITTSBURGH, 207 U.S. 161, 178, THESE GOVERNMENTAL
UNITS ARE 'CREATED AS CONVENIENT AGENCIES FOR EXERCISING SUCH OF THE
GOVERNMENTAL POWERS OF THE STATE AS MAY BE ENTRUSTED TO THEM,' AND THE
'NUMBER, NATURE AND DURATION OF THE POWERS CONFERRED UPON THEM  ...
AND THE TERRITORY OVER WHICH THEY SHALL BE EXERCISED RESTS IN THE
ABSOLUTE DISCRETION OF THE STATE.'" 

WE FIND NO CONSTITUTIONAL REASON WHY STATE OR LOCAL OFFICERS OF THE
NONLEGISLATIVE CHARACTER INVOLVED HERE MAY NOT BE CHOSEN BY THE
GOVERNOR, BY THE LEGISLATURE, OR BY SOME OTHER APPOINTIVE MEANS RATHER
THAN BY AN ELECTION.  OUR CASES HAVE, IN THE MAIN, DEALT WITH ELECTIONS
FOR UNITED STATES SENATOR OR CONGRESSMAN (GRAY V. SANDERS, SUPRA;
WESBERRY V. SANDERS, 376 U.S. 1) OR FOR STATE OFFICERS (FN4) (GRAY V.
SANDERS, SUPRA) OR FOR STATE LEGISLATORS.  REYNOLDS V. SIMS, SUPRA;
WMCA, INC. V. LOMENZO, 377 U.S. 633; DAVIS V. MANN, 377 U.S. 678; ROMAN
V. SINCOCK, 377 U.S. 695; LUCAS V. COLORADO GEN. ASSEMBLY, 377 U.S.
713; MARSHALL V. HARE, 378 U.S. 561. 

THEY WERE ALL CASES WHERE ELECTIONS HAD BEEN PROVIDED AND CAST NO
LIGHT ON WHEN A STATE MUST PROVIDE FOR THE ELECTION OF LOCAL
OFFICIALS. 

A STATE CANNOT OF COURSE MANIPULATE ITS POLITICAL SUBDIVISIONS SO AS
TO DEFEAT A FEDERALLY PROTECTED RIGHT, AS FOR EXAMPLE, BY REALIGNING
POLITICAL SUBDIVISIONS SO AS TO DENY A PERSON HIS VOTE BECAUSE OF
RACE.  (FN5)  GOMILLION V. LIGHTFOOT, 364 U.S. 339, 345.  YET AS STATED
IN ANDERSON V. DUNN, 6 WHEAT.  204, 226: 

"THE SCIENCE OF GOVERNMENT IS THE MOST ABSTRUSE OF ALL SCIENCES; IF,
INDEED, THAT CAN BE CALLED A SCIENCE WHICH HAS BUT FEW FIXED
PRINCIPLES, AND PRACTICALLY CONSISTS IN LITTLE MORE THAN THE EXERCISE
OF A SOUND DISCRETION, APPLIED TO THE EXIGENCIES OF THE STATE AS THEY
ARISE.  IT IS THE SCIENCE OF EXPERIMENT." 

IF WE ASSUME ARGUENDO THAT WHERE A STATE PROVIDES FOR AN ELECTION OF
A LOCAL OFFICIAL OR AGENCY, THE REQUIREMENTS OF GRAY V. SANDERS AND
REYNOLDS V. SIMS MUST BE MET, WE ARE STILL SHORT OF AN ANSWER TO THE
PRESENT PROBLEM AND THAT IS WHETHER MICHIGAN MAY ALLOW ITS COUNTY
SCHOOL BOARDS TO BE APPOINTED. 

WHEN WE STATED "  ...  THE STATE LEGISLATURES HAVE CONSTITUTIONAL
AUTHORITY TO EXPERIMENT WITH NEW TECHNIQUES" (DAY-BRITE LIGHTING, INC.
V. MISSOURI, 342 U.S. 421, 423), WE WERE TALKING ABOUT THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT, AS WAS MR. JUSTICE HOLMES,
DISSENTING IN LOCHNER V. NEW YORK, 198 U.S. 45, 75, WHEN HE SAID "  ...
A CONSTITUTION IS NOT INTENDED TO EMBODY  ...  THE ORGANIC RELATION OF
THE CITIZEN TO THE STATE  ...  ."  BUT AS WE INDICATED IN GOMILLION V.
LIGHTFOOT, SUPRA, IT IS PRECISELY THAT SAME APPROACH THAT WE HAVE TAKEN
WHEN IT COMES TO MUNICIPAL AND COUNTY ARRANGEMENTS WITHIN THE FRAMEWORK
OF A STATE.  SAVE AND UNLESS THE STATE, COUNTY, OR MUNICIPAL GOVERNMENT
RUNS AFOUL OF A FEDERALLY PROTECTED RIGHT, IT HAS VAST LEEWAY IN THE
MANAGEMENT OF ITS INTERNAL AFFAIRS. 

THE MICHIGAN SYSTEM FOR SELECTING MEMBERS OF THE COUNTY SCHOOL BOARD
IS BASICALLY APPOINTIVE RATHER THAN ELECTIVE.  (FN6)  WE NEED NOT
DECIDE AT THE PRESENT TIME WHETHER A STATE MAY CONSTITUTE A LOCAL
LEGISLATIVE BODY THROUGH THE APPOINTIVE RATHER THAN THE ELECTIVE
PROCESS.  WE RESERVE THAT QUESTION FOR OTHER CASES SUCH AS BOARD OF
SUPERVISORS V. BIANCHI, ANTE, P. 97, WHICH WE HAVE DISPOSED OF ON
JURISDICTIONAL GROUNDS.  WE DO NOT HAVE THAT QUESTION HERE, AS THE
COUNTY BOARD OF EDUCATION PERFORMS ESSENTIALLY ADMINISTRATIVE
FUNCTIONS; (FN7) AND WHILE THEY ARE IMPORTANT, THEY ARE NOT LEGISLATIVE
IN THE CLASSICAL SENSE. 

VIABLE LOCAL GOVERNMENTS MAY NEED MANY INNOVATIONS, NUMEROUS
COMBINATIONS OF OLD AND NEW DEVICES, GREAT FLEXIBILITY IN MUNICIPAL
ARRANGEMENTS TO MEET CHANGING URBAN CONDITIONS.  WE SEE NOTHING IN THE
CONSTITUTION TO PREVENT EXPERIMENTATION.  AT LEAST AS RESPECTS
NONLEGISLATIVE OFFICERS, A STATE CAN APPOINT LOCAL OFFICIALS OR ELECT
THEM OR COMBINE THE ELECTIVE AND APPOINTIVE SYSTEMS AS WAS DONE HERE. 
IF WE ASSUME ARGUENDO THAT WHERE A STATE PROVIDES FOR AN ELECTION OF A
LOCAL OFFICIAL OR AGENCY - WHETHER ADMINISTRATIVE, LEGISLATIVE, OR
JUDICIAL - THE REQUIREMENTS OF GRAY V. SANDERS AND REYNOLDS V. SIMS
MUST BE MET, NO QUESTION OF THAT CHARACTER IS PRESENTED.  FOR WHILE
THERE WAS AN ELECTION HERE FOR THE LOCAL SCHOOL BOARD, NO
CONSTITUTIONAL COMPLAINT IS RAISED RESPECTING THAT ELECTION.  SINCE THE
CHOICE OF MEMBERS OF THE COUNTY SCHOOL BOARD DID NOT INVOLVE AN
ELECTION AND SINCE NONE WAS REQUIRED FOR THESE NONLEGISLATIVE OFFICES,
THE PRINCIPLE OF "ONE MAN, ONE VOTE" HAS NO RELEVANCY.  AFFIRMED. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART CONCUR IN THE RESULT. 

FN1  IN MICHIGAN THE MEMBERS OF THE LOCAL SCHOOL DISTRICT'S BOARD ARE
ELECTED BY POPULAR VOTE OF THE RESIDENTS OF THE DISTRICT.  SEE MICH.
STAT. ANN. SEC 15.3023 (1959); MICH. STAT. ANN. SECS 15.3027, 15.3055,
15.3056, 15.3107, 15.3148, 15.3188, 15.3511 (SUPP. 1965). 

FN2  MICH. STAT. ANN. SECS 15.3294(1), 15.3295(1) (SUPP. 1965).  BY
MICH. STAT. ANN.  SECS 15.3294(2)-15.3294(6) (SUPP. 1965), MEMBERS OF
THE COUNTY BOARD MAY BE CHOSEN AT POPULAR ELECTIONS PROVIDED THE BOARD
SUBMITS THE MATTER TO A REFERENDUM AND THE PEOPLE APPROVE.  SO FAR AS
WE ARE ADVISED, NO SUCH REFERENDUM HAS BEEN HELD; AND THE MEMBERSHIP OF
THE COUNTY BOARD, HERE CHALLENGED, WAS CONSTITUTED BY ELECTORS CHOSEN
BY THE LOCAL BOARDS. 

FN3  MICH. STAT. ANN. SEC 15.3294(1) (SUPP. 1965). 

FN4  THE OFFICERS IN GRAY V. SANDERS WERE:  U.S. SENATOR, GOVERNOR,
LIEUTENANT GOVERNOR, JUSTICE OF THE SUPREME COURT, JUDGE OF THE COURT
OF APPEALS, SECRETARY OF STATE, ATTORNEY GENERAL, COMPTROLLER GENERAL,
COMMISSIONER OF LABOR, AND TREASURER. 

FN5  NOR CAN THE RESTRAINTS IMPOSED BY THE CONSTITUTION ON THE STATES
BE CIRCUMVENTED BY LOCAL BODIES TO WHOM THE STATE DELEGATES AUTHORITY. 
STANDARD COMPUTING SCALE CO. V. FARRELL, 249 U.S. 571, 577; COOPER V.
AARON, 358 U.S. 1, 17. 

FN6  THE DELEGATES FROM THE LOCAL SCHOOL BOARDS, NOT THE SCHOOL
ELECTORS, SELECT THE MEMBERS OF THE COUNTY SCHOOL BOARD.  WHILE THE
SCHOOL ELECTORS ELECT THE MEMBERS OF THE LOCAL SCHOOL BOARDS AND THE
LOCAL SCHOOL BOARDS, IN TURN, SELECT DELEGATES TO ATTEND THE MEETING AT
WHICH THE COUNTY BOARD IS SELECTED, THE DELEGATES NEED NOT CAST THEIR
VOTES IN ACCORD WITH THE EXPRESSED PREFERENCES OF THE SCHOOL ELECTORS. 
THERE IS NOT EVEN A FORMAL METHOD BY WHICH A DELEGATE CAN DETERMINE THE
PREFERENCES OF THE PEOPLE IN HIS DISTRICT.  IT IS EVIDENT, THEREFORE,
THAT THE MEMBERSHIP OF THE COUNTY BOARD IS NOT DETERMINED, DIRECTLY OR
INDIRECTLY, THROUGH AN ELECTION IN WHICH THE RESIDENTS OF THE COUNTY
PARTICIPATE.  THE "ELECTORATE" UNDER THE MICHIGAN SYSTEM IS COMPOSED
NOT OF THE PEOPLE OF THE COUNTY, BUT THE DELEGATES FROM THE LOCAL
SCHOOL BOARDS. 

FN7  THE AUTHORITY OF THE COUNTY BOARD INCLUDES THE APPOINTMENT OF A
COUNTY SCHOOL SUPERINTENDENT (MICH. STAT. ANN. SEC 15.3298(1)(B)(SUPP. 
1965)), PREPARATION OF AN ANNUAL BUDGET AND LEVY OF TAXES (MICH. STAT.
ANN. SEC 15.3298(1)(C)(SUPP.  1965)), DISTRIBUTION OF DELINQUENT TAXES
(MICH STAT. ANN. SEC 15.3298(1)(D)(SUPP.  1965)), FURNISHING CONSULTING
OR SUPERVISORY SERVICES TO A CONSTITUENT SCHOOL DISTRICT UPON REQUEST
(MICH. STAT. ANN. SEC 15.3298(1)(G)(SUPP.  1965)), CONDUCTING
COOPERATIVE EDUCATIONAL PROGRAMS ON BEHALF OF CONSTITUENT SCHOOL
DISTRICTS WHICH REQUEST SUCH SERVICES (MICH. STAT. ANN. SEC
15.3298(1)(I)(SUPP.  1965)), AND WITH OTHER INTERMEDIATE SCHOOL
DISTRICTS (MICH. STAT. ANN. SEC 15.3298(1)(J)(SUPP.  1965)), EMPLOYMENT
OF TEACHERS FOR SPECIAL EDUCATIONAL PROGRAMS (MICH. STAT. ANN. SEC
15.3298(1)(H) (SUPP.  1965)), AND ESTABLISHING, AT THE DIRECTION OF THE
BOARD OF SUPERVISORS, A SCHOOL FOR CHILDREN IN THE JUVENILE HOMES
(MICH. STAT. ANN. SEC 15.3298(1)(K)(SUPP.  1965)).  ONE OF THE BOARD'S
MOST SENSITIVE FUNCTIONS, AND THE ONE GIVING RISE TO THIS LITIGATION,
IS THE POWER TO TRANSFER AREAS FROM ONE SCHOOL DISTRICT TO ANOTHER. 
MICH. STAT. ANN.  SEC 15.3461 (1959). 
..END :













DUSCH V. DAVIS 387 U.S. 112 


NO. 724.  ARGUED APRIL 17-18, 1967.  - DECIDED MAY 22, 1967.  - 361 F.2D
495, REVERSED. 


APPELLEES BROUGHT THIS SUIT AGAINST LOCAL AND STATE OFFICIALS SEEKING
TO ENJOIN AS INVIDIOUSLY DISCRIMINATORY A LOCAL GOVERNMENT PLAN
EMBODIED IN STATE LAW UNDER WHICH THE CITY OF VIRGINIA BEACH, VIRGINIA,
WAS CONSOLIDATED WITH PRINCESS ANNE COUNTY TO FORM SEVEN BOROUGHS,
WHICH VARY CONSIDERABLY IN POPULATION.  UNDER THE SEVEN-FOUR PLAN OF
THE AMENDED CHARTER INVOLVED HEREIN THE NEW CITY COUNCIL CONSISTS OF 11
MEMBERS, EACH OF WHOM IS ELECTED AT LARGE.  FOUR ARE ELECTED WITHOUT
REGARD TO RESIDENCE; EACH OF THE SEVEN OTHERS MUST RESIDE IN A
DIFFERENT BOROUGH.  A THREE-JUDGE COURT PREVIOUSLY CONVENED, HOLDING
THAT IT HAD NO JURISDICTION, TRANSFERRED THE CASE TO THE DISTRICT
COURT.  THAT COURT'S APPROVAL OF THE PLAN WAS REVERSED BY THE COURT OF
APPEALS.  HELD: 

1.  SINCE THE CHARTER IS LOCAL AND NOT STATEWIDE, THIS CASE IS NOT
ONE FOR A THREE-JUDGE COURT.  MOODY V. FLOWERS, ANTE, P. 97, FOLLOWED. 
P. 114. 

2.  AN OTHERWISE NONDISCRIMINATORY PLAN IS NOT INVALID BECAUSE IT
USES BOROUGHS "MERELY AS THE BASIS OF RESIDENCE FOR CANDIDATES, NOT FOR
VOTING OR REPRESENTATION" (FORTSON V. DORSEY, 379 U.S., AT 438), SINCE
EACH COUNCILMAN REPRESENTS THE CITY AS A WHOLE AND NOT JUST THE BOROUGH
WHERE HE RESIDES.  PP. 114-117. 

DUSCH ET AL. V. DAVIS ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1963 THE CITY OF VIRGINIA BEACH, VIRGINIA, CONSOLIDATED WITH
ADJOINING PRINCESS ANNE COUNTY, WHICH WAS BOTH RURAL AND URBAN; AND A
BOROUGH FORM OF GOVERNMENT WAS ADOPTED.  THERE ARE SEVEN BOROUGHS, ONE
CORRESPONDING TO THE BOUNDARIES OF THE FORMER CITY AND SIX
CORRESPONDING TO THE BOUNDARIES OF THE SIX MAGISTERIAL DISTRICTS.  THE
CONSOLIDATION PLAN WAS EFFECTED PURSUANT TO VIRGINIA LAW  (FN1)  AND
THE CHARTER EMBODIED IN THE PLAN WAS APPROVED BY THE LEGISLATURE. 
(FN2) 

THREE BOROUGHS - BAYSIDE, KEMPSVILLE, AND LYNNHAVEN - ARE PRIMARILY
URBAN.  THREE - BLACKWATER, PRINCESS ANNE, AND PUNGO - ARE PRIMARILY
RURAL.  THE BOROUGH OF VIRGINIA BEACH, CENTERING AROUND ITS FAMOUS
OCEAN BEACH AND BAY, IS PRIMARILY TOURIST. 

ELECTORS OF FIVE BOROUGHS, HAVING EXHAUSTED ATTEMPTS TO OBTAIN RELIEF
IN THE STATE COURTS,  (FN3) INSTITUTED THIS SUIT AGAINST LOCAL AND
STATE OFFICIALS CLAIMING THAT THE CONSOLIDATION PLAN IN ITS
DISTRIBUTION OF VOTING RIGHTS VIOLATED THE PRINCIPLE OF REYNOLDS V.
SIMS, 377 U.S. 533, AND ASKING FOR THE CONVENING OF A THREE-JUDGE
COURT.  THE THREE-JUDGE COURT HELD THAT ITS JURISDICTION HAD NOT BEEN
ESTABLISHED BECAUSE THE ISSUE WAS LOCAL IN CHARACTER AND TRANSFERRED
THE CAUSE TO THE DISTRICT COURT. 

THE DISTRICT COURT HELD THE ORIGINAL ALLOCATION INVALID AS DENYING
VOTER EQUALITY AND STAYED FURTHER PROCEEDINGS TO ALLOW THE CITY AN
OPPORTUNITY TO SEEK A CHARTER AMENDMENT AT THE 1966 SESSION OF THE
STATE LEGISLATURE.  THE CHARTER WAS AMENDED TO PROVIDE FOR THE SEVEN
FOUR PLAN NOW BEING CHALLENGED.  (FN4)  UNDER THE AMENDED CHARTER, THE
COUNCIL IS COMPOSED OF 11 MEMBERS.  FOUR MEMBERS ARE ELECTED AT LARGE
WITHOUT REGARD TO RESIDENCE.  SEVEN ARE ELECTED BY THE VOTERS OF THE
ENTIRE CITY, ONE BEING REQUIRED TO RESIDE IN EACH OF THE SEVEN
BOROUGHS.  PURSUANT TO LEAVE OF THE DISTRICT COURT, APPELLEES FILED AN
AMENDED COMPLAINT CHALLENGING THE VALIDITY OF THE SEVEN-FOUR PLAN.  THE
DISTRICT COURT APPROVED THIS PLAN.  THE COURT OF APPEALS REVERSED, 361
F.2D 495.  THE CASE IS HERE ON APPEAL (28 U.S.C. SEC 1254(2)) AND WE
POSTPONED THE QUESTION OF JURISDICTION TO THE MERITS.  385 U.S. 999. 

FOR THE REASONS STATED IN MOODY V. FLOWERS, ANTE, P. 97, THE CASE IS
NOT ONE FOR A THREE-JUDGE COURT, THE CHARTER BEING LOCAL ONLY AND NOT
OF STATEWIDE APPLICATION. 

IN SAILORS V. BOARD OF EDUCATION, ANTE, P. 105, WE RESERVED THE
QUESTION WHETHER THE APPORTIONMENT OF MUNICIPAL OR COUNTY LEGISLATIVE
AGENCIES IS GOVERNED BY REYNOLDS V. SIMS.  BUT THOUGH WE ASSUME
ARGUENDO THAT IT IS, WE REVERSE THE COURT OF APPEALS.  IT FELT THAT
REYNOLDS V. SIMS REQUIRED "THAT EACH LEGISLATOR, STATE OR MUNICIPAL,
REPRESENT A REASONABLY LIKE NUMBER IN POPULATION," 361 F.2D, AT 497,
POINTING OUT THAT BLACKWATER, WHERE 733 PEOPLE LIVE, WILL HAVE THE SAME
REPRESENTATION AS LYNNHAVEN WITH 23,731 AND BAYSIDE WITH 29,048 AND
KEMPSVILLE WITH 13,900.  THE COURT OF APPEALS REAFFIRMED WHAT IT HAD
DECIDED IN ELLIS V. MAYOR AND CITY COUNCIL OF BALTIMORE, 352 F.2D 123,
128, THAT "THE FUNDAMENTAL PRINCIPLE OF REPRESENTATIVE GOVERNMENT IN
THIS COUNTRY IS ONE OF EQUAL REPRESENTATION FOR EQUAL NUMBERS OF
PEOPLE, WITHOUT REGARD TO RACE, SEX, ECONOMIC STATUS, OR PLACE OF
RESIDENCE WITHIN A STATE."  AND THE COURT HELD THAT THE PROVISION FOR
FOUR CITY-WIDE MEMBERS "DOES NOT REMEDY OR IN ANY WAY AFFECT THE
DISPROPORTION OF REPRESENTATION OF THE 7 BOROUGH MEMBERS."   361 F.2D,
AT 497. 

THE SEVEN-FOUR PLAN MAKES NO DISTINCTION ON THE BASIS OF RACE, CREED,
OR ECONOMIC STATUS OR LOCATION.  EACH OF THE 11 COUNCILMEN IS ELECTED
BY A VOTE OF ALL THE ELECTORS IN THE CITY.  THE FACT THAT EACH OF THE
SEVEN COUNCILMEN MUST BE A RESIDENT OF THE BOROUGH FROM WHICH HE IS
ELECTED, IS NOT FATAL.  IN UPHOLDING A RESIDENCE REQUIREMENT FOR THE
ELECTION OF STATE SENATORS FROM A MULTI-DISTRICT COUNTY WE SAID IN
FORTSON V. DORSEY, 379 U.S. 433, 438: 

"IT IS NOT ACCURATE TO TREAT A SENATOR FROM A MULTI-DISTRICT COUNTY
AS THE REPRESENTATIVE OF ONLY THAT DISTRICT WITHIN THE COUNTY WHEREIN
HE RESIDES.  THE STATUTE USES DISTRICTS IN MULTI-DISTRICT COUNTIES
MERELY AS THE BASIS OF RESIDENCE FOR CANDIDATES, NOT FOR VOTING OR
REPRESENTATION.  EACH DISTRICT'S SENATOR MUST BE A RESIDENT OF THAT
DISTRICT, BUT SINCE HIS TENURE DEPENDS UPON THE COUNTY-WIDE ELECTORATE
HE MUST BE VIGILANT TO SERVE THE INTERESTS OF ALL THE PEOPLE IN THE
COUNTY, AND NOT MERELY THOSE OF PEOPLE IN HIS HOME DISTRICT; THUS IN
FACT HE IS THE COUNTY'S AND NOT MERELY THE DISTRICT'S SENATOR." 

BY ANALOGY THE PRESENT CONSOLIDATION PLAN USES BOROUGHS IN THE CITY
"MERELY AS THE BASIS OF RESIDENCE FOR CANDIDATES, NOT FOR VOTING OR
REPRESENTATION."  HE IS NONETHELESS THE CITY'S NOT THE BOROUGH'S,
COUNCILMAN.  IN FORTSON THERE WAS SUBSTANTIAL EQUALITY OF POPULATION IN
THE SENATORIAL DISTRICTS, WHILE HERE THE POPULATION OF THE BOROUGHS
VARIES WIDELY.  IF A BOROUGH'S RESIDENT ON THE COUNCIL REPRESENTED IN
FACT ONLY THE BOROUGH, RESIDENCE BEING ONLY A FRONT, DIFFERENT
CONCLUSIONS MIGHT FOLLOW.  BUT ON THE ASSUMPTION THAT REYNOLDS V. SIMS
CONTROLS, THE CONSTITUTIONAL TEST UNDER THE EQUAL PROTECTION CLAUSE IS
WHETHER THERE IS AN "INVIDIOUS" DISCRIMINATION.  377 U.S., AT 561.  AS
STATED BY THE DISTRICT COURT: 

"THE PRINCIPAL AND ADEQUATE REASON FOR PROVIDING FOR THE ELECTION OF
ONE COUNCILMAN FROM EACH BOROUGH IS TO ASSURE THAT THERE WILL BE
MEMBERS OF THE CITY COUNCIL WITH SOME GENERAL KNOWLEDGE OF RURAL
PROBLEMS TO THE END THAT THIS HETEROGENEOUS CITY WILL BE ABLE TO GIVE
DUE CONSIDERATION TO QUESTIONS PRESENTED THROUGHOUT THE ENTIRE AREA. 

     *         *        *         *         * 

"THE HISTORY - PAST AND PRESENT - OF THE AREA AND POPULATION NOW
COMPRISING THE CITY OF VIRGINIA BEACH DEMONSTRATES THE COMPELLING NEED,
AT LEAST DURING AN APPRECIABLE TRANSITION PERIOD, FOR KNOWLEDGE OF
RURAL PROBLEMS IN HANDLING THE AFFAIRS OF ONE OF THE LARGEST AREA-WIDE
CITIES IN THE UNITED STATES.  BLUNTLY SPEAKING, THERE IS A VAST AREA OF
THE PRESENT CITY OF VIRGINIA BEACH WHICH SHOULD NEVER BE REFERRED TO AS
A CITY.  DISTRICT REPRESENTATION FROM THE OLD COUNTY OF PRINCESS ANNE
WITH ELECTED MEMBERS OF THE BOARD OF SUPERVISORS SELECTED ONLY BY THE
VOTERS OF THE PARTICULAR DISTRICT HAS NOW BEEN CHANGED TO PERMIT CITY
WIDE VOTING.  THE 'SEVEN-FOUR PLAN' IS NOT AN EVASIVE SCHEME TO AVOID
THE CONSEQUENCES OF REAPPORTIONMENT OR TO PERPETUATE CERTAIN PERSONS IN
OFFICE.  THE PLAN DOES NOT PRESERVE ANY CONTROLLING INFLUENCE OF THE
SMALLER BOROUGHS, BUT DOES INDICATE A DESIRE FOR INTELLIGENT EXPRESSION
OF VIEWS ON SUBJECTS RELATING TO AGRICULTURE WHICH REMAINS A GREAT
ECONOMIC FACTOR IN THE WELFARE OF THE ENTIRE POPULATION.  AS THE PLAN
BECOMES EFFECTIVE, IF IT THEN OPERATES TO MINIMIZE OR CANCEL OUT THE
VOTING STRENGTH OF RACIAL OR POLITICAL ELEMENTS OF THE VOTING
POPULATION, IT WILL BE TIME ENOUGH TO CONSIDER WHETHER THE SYSTEM STILL
PASSES CONSTITUTIONAL MUSTER." 

THE SEVEN-FOUR PLAN SEEMS TO REFLECT A DETENTE BETWEEN URBAN AND
RURAL COMMUNITIES THAT MAY BE IMPORTANT IN RESOLVING THE COMPLEX
PROBLEMS OF THE MODERN MEGALOPOLIS IN RELATION TO THE CITY, THE
SUBURBIA, AND THE RURAL COUNTRYSIDE.  (FN5)  FINDING NO INVIDIOUS
DISCRIMINATION WE CONCLUDE THAT THE JUDGMENT OF THE COURT OF APPEALS
MUST BE AND IS REVERSED. 

FN1  VA. CODE 1950, TIT. 15, ART. 4, C. 9 (1956 REPL.  VOL.). 

FN2  VA. ACTS 1962, C. 147.  THE CONSOLIDATION PLAN WAS AN INTERIM
ONE, THE IDEA BEING THAT ANOTHER SYSTEM WOULD BE INITIATED NOT SOONER
THAN 1968 AND NOT LATER THAN 1971. 

FN3  DAVIS V. DUSCH, 205 VA. 676, 139 S.E.2D 25. 

FN4  VA. ACTS 1966, C. 39. 

FN5  THE POPULATIONS OF THE SEVEN BOROUGHS ARE: 

BLACKWATER                                     733 

PUNGO                                       2,504 

PRINCESS ANNE                                           7,211 

KEMPSVILLE                                              13,900 

LYNNHAVEN                                               23,731 

BAYSIDE                                                 29,048 

VIRGINIA BEACH                                           8,091 

IT IS OBVIOUS THAT, IF THE PERCENTAGE OF QUALIFIED VOTERS IS IN
ACCORD WITH THE POPULATION, LYNNHAVEN AND BAYSIDE, IF UNITED IN THEIR
EFFORTS, COULD ELECT ALL 11 COUNCILMEN EVEN THOUGH THE ELECTION WERE AT
LARGE. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART CONCUR IN THE RESULT. 
..END :














BOUTILIER V. IMMIGRATION SERVICE 387 U.S. 118 


NO. 440.  ARGUED MARCH 14, 1967.  - DECIDED MAY 22, 1967.  - 363 F.2D
488, AFFIRMED. 


PETITIONER, AN ALIEN WHO AT THE TIME OF HIS ENTRY INTO THE UNITED
STATES WAS A HOMOSEXUAL, HELD EXCLUDABLE UNDER SEC 212(A)(4) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, AS ONE "AFFLICTED WITH A
PSYCHOPATHIC PERSONALITY," A TERM WHICH CONGRESS CLEARLY INTENDED TO
INCLUDE HOMOSEXUALS.  PP. 120-125. 

BOUTILIER V. IMMIGRATION AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, AN ALIEN, HAS BEEN ORDERED DEPORTED TO CANADA AS ONE
WHO UPON ENTRY INTO THIS COUNTRY WAS A HOMOSEXUAL AND THEREFORE
"AFFLICTED WITH PSYCHOPATHIC PERSONALITY" AND EXCLUDABLE UNDER SEC
212(A)(4) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 182,
8 U.S.C. SEC 1182(A)(4).*  PETITIONER'S APPEAL FROM THE FINDING OF THE
SPECIAL INQUIRY OFFICER WAS DISMISSED BY THE BOARD OF IMMIGRATION
APPEALS, WITHOUT OPINION, AND HIS PETITION FOR REVIEW IN THE COURT OF
APPEALS WAS DISMISSED, WITH ONE JUDGE DISSENTING.  363 F.2D 488.  IT
HELD THAT THE TERM "PSYCHOPATHIC PERSONALITY," AS USED BY THE CONGRESS
IN SEC 212(A)(4), WAS A TERM OF ART INTENDED TO EXCLUDE HOMOSEXUALS
FROM ENTRY INTO THE UNITED STATES.  IT FURTHER FOUND THAT THE TERM WAS
NOT VOID FOR VAGUENESS AND WAS, THEREFORE, NOT REPUGNANT TO THE FIFTH
AMENDMENT'S DUE PROCESS CLAUSE.  WE GRANTED CERTIORARI, 385 U.S. 927,
AND NOW AFFIRM. 

*"SEC. 212.  (A) EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, THE
FOLLOWING CLASSES OF ALIENS SHALL BE INELIGIBLE TO RECEIVE VISAS AND
SHALL BE EXCLUDED FROM ADMISSION INTO THE UNITED STATES: 

     *         *        *         *         * 

"(4) ALIENS AFFLICTED WITH PSYCHOPATHIC PERSONALITY, EPILEPSY, OR A
MENTAL DEFECT  ...  ." 

204, 8 U.S.C. SEC 1251(A)(1), PROVIDES THAT:  "ANY ALIEN IN THE UNITED
STATES  ...  SHALL, UPON THE ORDER OF THE ATTORNEY GENERAL, BE DEPORTED
WHO - (1) AT THE TIME OF ENTRY WAS WITHIN ONE OR MORE OF THE CLASSES OF
ALIENS EXCLUDABLE BY LAW EXISTING AT THE TIME OF SUCH ENTRY  ...  ." 

                        I. 

PETITIONER, A CANADIAN NATIONAL, WAS FIRST ADMITTED TO THIS COUNTRY
ON JUNE 22, 1955, AT THE AGE OF 21.  HIS LAST ENTRY WAS IN 1959, AT
WHICH TIME HE WAS RETURNING FROM A SHORT TRIP TO CANADA.  HIS MOTHER
AND STEPFATHER AND THREE OF HIS BROTHERS AND SISTERS LIVE IN THE UNITED
STATES.  IN 1963 HE APPLIED FOR CITIZENSHIP AND SUBMITTED TO THE
NATURALIZATION EXAMINER AN AFFIDAVIT IN WHICH HE ADMITTED THAT HE WAS
ARRESTED IN NEW YORK IN OCTOBER 1959, ON A CHARGE OF SODOMY, WHICH WAS
LATER REDUCED TO SIMPLE ASSAULT AND THEREAFTER DISMISSED ON DEFAULT OF
THE COMPLAINANT.  IN 1964, PETITIONER, AT THE REQUEST OF THE
GOVERNMENT, SUBMITTED ANOTHER AFFIDAVIT WHICH REVEALED THE FULL HISTORY
OF HIS SEXUAL DEVIATE BEHAVIOR.  IT STATED THAT HIS FIRST HOMOSEXUAL
EXPERIENCE OCCURRED WHEN HE WAS 14 YEARS OF AGE, SOME SEVEN YEARS
BEFORE HIS ENTRY INTO THE UNITED STATES.  PETITIONER WAS EVIDENTLY A
PASSIVE PARTICIPANT IN THIS ENCOUNTER.  HIS NEXT EPISODE WAS AT AGE 16
AND OCCURRED IN A PUBLIC PARK IN HALIFAX, NOVA SCOTIA.  PETITIONER WAS
THE ACTIVE PARTICIPANT IN THIS AFFAIR.  DURING THE NEXT FIVE YEARS
IMMEDIATELY PRECEDING HIS FIRST ENTRY INTO THE UNITED STATES PETITIONER
HAD HOMOSEXUAL RELATIONS ON AN AVERAGE OF THREE OR FOUR TIMES A YEAR. 
HE ALSO STATED THAT PRIOR TO HIS ENTRY HE HAD ENGAGED IN HETEROSEXUAL
RELATIONS ON THREE OR FOUR OCCASIONS.  DURING THE EIGHT AND ONE-HALF
YEARS IMMEDIATELY SUBSEQUENT TO HIS ENTRY, AND UP TO THE TIME OF HIS
SECOND STATEMENT, PETITIONER CONTINUED TO HAVE HOMOSEXUAL RELATIONS ON
AN AVERAGE OF THREE OR FOUR TIMES A YEAR.  SINCE 1959 PETITIONER HAD
SHARED AN APARTMENT WITH A MAN WITH WHOM HE HAD HAD HOMOSEXUAL
RELATIONS. 

THE 1964 AFFIDAVIT WAS SUBMITTED TO THE PUBLIC HEALTH SERVICE FOR ITS
OPINION AS TO WHETHER PETITIONER WAS EXCLUDABLE FOR ANY REASON AT THE
TIME OF HIS ENTRY.  THE PUBLIC HEALTH SERVICE ISSUED A CERTIFICATE IN
1964 STATING THAT IN THE OPINION OF THE SUBSCRIBING PHYSICIANS
PETITIONER "WAS AFFLICTED WITH A CLASS A CONDITION, NAMELY,
PSYCHOPATHIC PERSONALITY, SEXUAL DEVIATE" AT THE TIME OF HIS
ADMISSION.  DEPORTATION PROCEEDINGS WERE THEN INSTITUTED.  "NO SERIOUS
QUESTION," THE SPECIAL INQUIRY OFFICER FOUND, "HAS BEEN RAISED EITHER
BY THE RESPONDENT (PETITIONER HERE), HIS COUNSEL OR THE PSYCHIATRISTS
(EMPLOYED BY PETITIONER) WHO HAVE SUBMITTED REPORTS ON THE RESPONDENT
AS TO HIS SEXUAL DEVIATION."  INDEED, THE OFFICER FOUND THAT BOTH OF
PETITIONER'S PSYCHIATRISTS "CONCEDE THAT THE RESPONDENT HAS BEEN A
HOMOSEXUAL FOR A NUMBER OF YEARS BUT CONCLUDE THAT BY REASON OF SUCH
SEXUAL DEVIATION, THE RESPONDENT IS NOT A PSYCHOPATHIC PERSONALITY." 
FINDING AGAINST PETITIONER ON THE FACTS, THE ISSUE BEFORE THE OFFICER
WAS REDUCED TO THE PURELY LEGAL QUESTION OF WHETHER THE TERM
"PSYCHOPATHIC PERSONALITY" INCLUDED HOMOSEXUALS AND IF IT SUFFERED
ILLEGALITY BECAUSE OF VAGUENESS. 

                                  II. 

THE LEGISLATIVE HISTORY OF THE ACT INDICATES BEYOND A SHADOW OF A
DOUBT THAT THE CONGRESS INTENDED THE PHRASE "PSYCHOPATHIC PERSONALITY"
TO INCLUDE HOMOSEXUALS SUCH AS PETITIONER. 

PRIOR TO THE 1952 ACT THE IMMIGRATION LAW EXCLUDED "PERSONS OF
CONSTITUTIONAL PSYCHOPATHIC INFERIORITY."  39 STAT. 875, AS AMENDED, 8
U.S.C. SEC. 136(A)(1964 ED.).  BEGINNING IN 1950, A SUBCOMMITTEE OF THE
SENATE COMMITTEE ON THE JUDICIARY CONDUCTED A COMPREHENSIVE STUDY OF
THE IMMIGRATION LAWS AND IN ITS REPORT FOUND "THAT THE PURPOSE OF THE
PROVISION AGAINST 'PERSONS WITH CONSTITUTIONAL PSYCHOPATHIC
INFERIORITY' WILL BE MORE ADEQUATELY SERVED BY CHANGING THAT TERM TO
'PERSONS AFFLICTED WITH PSYCHOPATHIC PERSONALITY,' AND THAT THE CLASSES
OF MENTALLY DEFECTIVES SHOULD BE ENLARGED TO INCLUDE HOMOSEXUALS AND
OTHER SEX PERVERTS."  S. REP. NO. 1515, 81ST CONG., 2D SESS., P. 345. 
THE RESULTING LEGISLATION WAS FIRST INTRODUCED AS S. 3455 AND USED THE
NEW PHRASE "PSYCHOPATHIC PERSONALITY."  THE BILL, HOWEVER, CONTAINED AN
ADDITIONAL CLAUSE PROVIDING FOR THE EXCLUSION OF ALIENS "WHO ARE
HOMOSEXUALS OR SEX PERVERTS."  AS THE LEGISLATION PROGRESSED (NOW S.
2550 IN THE 82D CONGRESS), HOWEVER, IT OMITTED THE LATTER CLAUSE "WHO
ARE HOMOSEXUALS OR SEX PERVERTS" AND USED ONLY THE PHRASE "PSYCHOPATHIC
PERSONALITY."  THE OMISSION IS EXPLAINED BY THE JUDICIARY COMMITTEE
REPORT ON THE BILL: 

"THE PROVISION OF S. 716 (ONE OF THE EARLIER BILLS NOT ENACTED) WHICH
SPECIFICALLY EXCLUDED HOMOSEXUALS AND SEX PERVERTS AS A SEPARATE
EXCLUDABLE CLASS DOES NOT APPEAR IN THE INSTANT BILL.  THE PUBLIC
HEALTH SERVICE HAS ADVISED THAT THE PROVISION FOR THE EXCLUSION OF
ALIENS AFFLICTED WITH PSYCHOPATHIC PERSONALITY OR A MENTAL DEFECT WHICH
APPEARS IN THE INSTANT BILL IS SUFFICIENTLY BROAD TO PROVIDE FOR THE
EXCLUSION OF HOMOSEXUALS AND SEX PERVERTS.  THIS CHANGE OF NOMENCLATURE
IS NOT TO BE CONSTRUED IN ANY WAY AS MODIFYING THE INTENT TO EXCLUDE
ALL ALIENS WHO ARE SEXUAL DEVIATES."  S. REP. NO. 1137, 82D CONG., 2D
SESS., P. 9. 

LIKEWISE, A HOUSE BILL, H.R. 5678, ADOPTED THE POSITION OF THE PUBLIC
HEALTH SERVICE THAT THE PHRASE "PSYCHOPATHIC PERSONALITY" EXCLUDED FROM
ENTRY HOMOSEXUALS AND SEX PERVERTS.  THE REPORT THAT ACCOMPANIED THE
BILL SHOWS CLEARLY THAT THE HOUSE JUDICIARY COMMITTEE ADOPTED THE
RECOMMENDATION OF THE PUBLIC HEALTH SERVICE THAT "PSYCHOPATHIC
PERSONALITY" SHOULD BE USED IN THE ACT AS A PHRASE THAT WOULD EXCLUDE
FROM ADMISSION HOMOSEXUALS AND SEX PERVERTS.  H.R.  REP. NO. 1365, 82D
CONG., 2D SESS.  IT QUOTED AT LENGTH, AND SPECIFICALLY ADOPTED, THE
PUBLIC HEALTH SERVICE REPORT WHICH RECOMMENDED THAT THE TERM
"PSYCHOPATHIC PERSONALITY" BE USED TO "SPECIFY SUCH TYPES OF PATHOLOGIC
BEHAVIOR AS HOMOSEXUALITY OR SEXUAL PERVERSION."  WE, THEREFORE,
CONCLUDE THAT THE CONGRESS USED THE PHRASE "PSYCHOPATHIC PERSONALITY"
NOT IN THE CLINICAL SENSE, BUT TO EFFECTUATE ITS PURPOSE TO EXCLUDE
FROM ENTRY ALL HOMOSEXUALS AND OTHER SEX PERVERTS. 

PETITIONER STRESSES THAT ONLY PERSONS AFFLICTED WITH PSYCHOPATHIC
PERSONALITY ARE EXCLUDABLE.  THIS, HE SAYS, IS "A CONDITION, PHYSICAL
OR PSYCHIATRIC, WHICH MAY BE MANIFESTED IN DIFFERENT WAYS, INCLUDING
SEXUAL BEHAVIOR."  PETITIONER'S CONTENTION MUST FALL BY HIS OWN
ADMISSIONS.  FOR OVER SIX YEARS PRIOR TO HIS ENTRY PETITIONER
ADMITTEDLY FOLLOWED A CONTINUED COURSE OF HOMOSEXUAL CONDUCT.  THE
PUBLIC HEALTH SERVICE DOCTORS FOUND AND CERTIFIED THAT AT THE TIME OF
HIS ENTRY PETITIONER "WAS AFFLICTED WITH A CLASS A CONDITION, NAMELY,
PSYCHOPATHIC PERSONALITY, SEXUAL DEVIATE  ...  ."  IT WAS STIPULATED
THAT IF THESE DOCTORS WERE TO APPEAR IN THE CASE THEY WOULD TESTIFY TO
THIS EFFECT AND THAT "NO USEFUL PURPOSE WOULD BE SERVED BY SUBMITTING
THIS ADDITIONAL PSYCHIATRIC MATERIAL (FURNISHED BY PETITIONER'S
DOCTORS) TO THE UNITED STATES PUBLIC HEALTH SERVICE  ...  ."  THE
GOVERNMENT CLEARLY ESTABLISHED THAT PETITIONER WAS A HOMOSEXUAL AT
ENTRY.  HAVING SUBSTANTIAL SUPPORT IN THE RECORD, WE DO NOT NOW DISTURB
THAT FINDING, ESPECIALLY SINCE PETITIONER ADMITTED BEING A HOMOSEXUAL
AT THE TIME OF HIS ENTRY.  THE EXISTENCE OF THIS CONDITION OVER A
CONTINUOUS AND UNINTERRUPTED PERIOD PRIOR TO AND AT THE TIME OF
PETITIONER'S ENTRY CLEARLY SUPPORTS THE ULTIMATE FINDING UPON WHICH THE
ORDER OF DEPORTATION WAS BASED. 

                        III. 

PETITIONER SAYS, EVEN SO, THE SECTION AS CONSTRUED IS
CONSTITUTIONALLY DEFECTIVE BECAUSE IT DID NOT ADEQUATELY WARN HIM THAT
HIS SEXUAL AFFLICTION AT THE TIME OF ENTRY COULD LEAD TO HIS
DEPORTATION.  IT IS TRUE THAT THIS COURT HAS HELD THE "VOID FOR
VAGUENESS" DOCTRINE APPLICABLE TO CIVIL AS WELL AS CRIMINAL ACTIONS. 
SEE SMALL CO. V. AM. SUGAR REF. CO., 267 U.S. 233, 239 (1925). 
HOWEVER, THIS IS WHERE "THE EXACTION OF OBEDIENCE TO A RULE OR STANDARD
...  WAS SO VAGUE AND INDEFINITE AS REALLY TO BE NO RULE OR STANDARD
AT ALL  ...  ."  IN SHORT, THE EXACTION MUST STRIP A PARTICIPANT OF HIS
RIGHTS TO COME WITHIN THE PRINCIPLE OF THE CASES.  BUT THE "EXACTION"
OF SEC. 212(A)(4) NEVER APPLIED TO PETITIONER'S CONDUCT AFTER ENTRY. 
THE SECTION IMPOSES NEITHER REGULATION OF NOR SANCTION FOR CONDUCT.  IN
THIS SITUATION, THEREFORE, NO NECESSITY EXISTS FOR GUIDANCE SO THAT ONE
MAY AVOID THE APPLICABILITY OF THE LAW.  THE PETITIONER IS NOT BEING
DEPORTED FOR CONDUCT ENGAGED IN AFTER HIS ENTRY INTO THE UNITED STATES,
BUT RATHER FOR CHARACTERISTICS HE POSSESSED AT THE TIME OF HIS ENTRY. 
HERE, WHEN PETITIONER FIRST PRESENTED HIMSELF AT OUR BORDER FOR
ENTRANCE, HE WAS ALREADY AFFLICTED WITH HOMOSEXUALITY.  THE PATTERN WAS
CUT, AND UNDER IT HE WAS NOT ADMISSIBLE. 

THE CONSTITUTIONAL REQUIREMENT OF FAIR WARNING HAS NO APPLICABILITY
TO STANDARDS SUCH AS ARE LAID DOWN IN SEC 212(A)(4) FOR ADMISSION OF
ALIENS TO THE UNITED STATES.  IT HAS LONG BEEN HELD THAT THE CONGRESS
HAS PLENARY POWER TO MAKE RULES FOR THE ADMISSION OF ALIENS AND TO
EXCLUDE THOSE WHO POSSESS THOSE CHARACTERISTICS WHICH CONGRESS HAS
FORBIDDEN.  SEE THE CHINESE EXCLUSION CASE, 130 U.S. 581 (1889).  HERE
CONGRESS COMMANDED THAT HOMOSEXUALS NOT BE ALLOWED TO ENTER.  THE
PETITIONER WAS FOUND TO HAVE THAT CHARACTERISTIC AND WAS ORDERED
DEPORTED.  THE BASIS OF THE DEPORTATION ORDER WAS HIS AFFLICTION FOR A
LONG PERIOD OF TIME PRIOR TO ENTRY, I.E., SIX AND ONE-HALF YEARS BEFORE
HIS ENTRY.  IT MAY BE, AS SOME CLAIM, THAT "PSYCHOPATHIC PERSONALITY"
IS A MEDICALLY AMBIGUOUS TERM, INCLUDING SEVERAL SEPARATE AND DISTINCT
AFFLICTIONS.  NOYES, MODERN CLINICAL PSYCHIATRY 410 (3D ED. 1948).  BUT
THE TEST HERE IS WHAT THE CONGRESS INTENDED, NOT WHAT DIFFERING
PSYCHIATRISTS MAY THINK.   IT WAS NOT LAYING DOWN A CLINICAL TEST, BUT
AN EXCLUSIONARY STANDARD WHICH IT DECLARED TO BE INCLUSIVE OF THOSE
HAVING HOMOSEXUAL AND PERVERTED CHARACTERISTICS.  IT CAN HARDLY BE
DISPUTED THAT THE LEGISLATIVE HISTORY OF SEC. 212(A)(4) CLEARLY SHOWS
THAT CONGRESS SO INTENDED. 

BUT PETITIONER SAYS THAT HE HAD NO WARNING AND THAT NO INTERPRETATION
OF THE SECTION HAD COME DOWN AT THE TIME OF HIS 1955 ENTRY.  THEREFORE,
HE ARGUES, HE WAS UNAWARE OF THE FACT THAT HOMOSEXUAL CONDUCT ENGAGED
IN AFTER ENTRY COULD LEAD TO HIS DEPORTATION.  WE DO NOT BELIEVE THAT
PETITIONER'S POST-ENTRY CONDUCT IS THE BASIS FOR HIS DEPORTATION
ORDER.  AT THE TIME OF HIS FIRST ENTRY HE HAD CONTINUOUSLY BEEN
AFFLICTED WITH HOMOSEXUALITY FOR OVER SIX YEARS.  TO US THE STATUTE IS
CLEAR.  IT FIXES "THE TIME OF ENTRY" AS THE CRUCIAL DATE AND THE RECORD
SHOWS THAT THE FINDINGS OF THE PUBLIC HEALTH SERVICE DOCTORS AND THE
SPECIAL INQUIRY OFFICER ALL WERE BASED ON THAT DATE.  WE FIND NO
INDICATION THAT THE POST-ENTRY EVIDENCE WAS OF ANY CONSEQUENCE IN THE
ULTIMATE DECISION OF THE DOCTORS, THE HEARING OFFICER OR THE COURT. 
INDEED, THE PROOF WAS UNCONTRADICTED AS TO PETITIONER'S CHARACTERISTICS
AT THE TIME OF ENTRY AND THIS BROUGHT HIM WITHIN THE EXCLUDABLE CLASS. 
A STANDARD APPLICABLE SOLELY TO TIME OF ENTRY COULD HARDLY BE VAGUE AS
TO POST-ENTRY CONDUCT. 

THE PETITIONER RAISES OTHER POINTS, INCLUDING THE CLAIM THAT AN
"ARRIVING ALIEN" UNDER THE ACT IS ENTITLED TO MEDICAL EXAMINATION. 
SINCE HE IS NOT AN "ARRIVING ALIEN" SUBJECT TO EXCLUSION, BUT A
DEPORTABLE ALIEN WITHIN AN EXCLUDABLE CLASS - WHO THROUGH ERROR WAS
PERMITTED ENTRY - IT IS DOUBTFUL IF THE REQUIREMENT WOULD APPLY.  BUT
WE NEED NOT GO INTO THE QUESTION SINCE PETITIONER WAS TWICE OFFERED
EXAMINATION AND REFUSED TO SUBMIT HIMSELF.  HE CAN HARDLY BE HEARD TO
COMPLAIN NOW.  THE REMAINING CONTENTIONS ARE LIKEWISE WITHOUT MERIT. 
AFFIRMED.    MR. JUSTICE BRENNAN DISSENTS FOR THE REASONS STATED BY
JUDGE MOORE OF THE COURT OF APPEALS, 363 F.2D 488, 496-499. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE FORTAS CONCURS,
DISSENTING. 

THE TERM "PSYCHOPATHIC PERSONALITY" IS A TREACHEROUS ONE LIKE
"COMMUNIST" OR IN AN EARLIER DAY "BOLSHEVIK."  A LABEL OF THIS KIND
WHEN FREELY USED MAY MEAN ONLY AN UNPOPULAR PERSON.  IT IS MUCH TOO
VAGUE BY CONSTITUTIONAL STANDARDS FOR THE IMPOSITION OF PENALTIES OR
PUNISHMENT.    CLECKLEY DEFINES "PSYCHOPATHIC PERSONALITY" AS ONE WHO
HAS THE FOLLOWING CHARACTERISTICS: 

(1) SUPERFICIAL CHARM AND GOOD "INTELLIGENCE."  (2) ABSENCE OF
DELUSIONS AND OTHER SIGNS OF IRRATIONAL "THINKING."  (3) ABSENCE OF
"NERVOUSNESS" OR PSYCHONEUROTIC MANIFESTATIONS.  (4) UNRELIABILITY. 
(5) UNTRUTHFULNESS AND INSINCERITY.  (6) LACK OF REMORSE OR SHAME.  (7)
INADEQUATELY MOTIVATED ANTISOCIAL BEHAVIOR.  (8) POOR JUDGMENT AND
FAILURE TO LEARN BY EXPERIENCE.  (9) PATHOLOGIC EGOCENTRICITY AND
INCAPACITY FOR LOVE.  (10) GENERAL POVERTY IN MAJOR AFFECTIVE
REACTIONS.  (11) SPECIFIC LOSS OF INSIGHT.  (12) UNRESPONSIVENESS IN
GENERAL INTERPERSONAL RELATIONS.  (13) FANTASTIC AND UNINVITING
BEHAVIOR WITH DRINK AND SOMETIMES WITHOUT.  (14) SUICIDE RARELY CARRIED
OUT.  (15) SEX LIFE IMPERSONAL, TRIVIAL AND POORLY INTEGRATED.  (16)
FAILURE TO FOLLOW ANY LIFE PLAN.  CLECKLEY, THE MASK OF INSANITY 238
255 (1941). 

THE WORD "PSYCHOPATH" ACCORDING TO SOME MEANS "A SICK MIND." 
GUTTMACHER & WEIHOFEN, PSYCHIATRY AND THE LAW 86 (1952): 

"IN THE LIGHT OF PRESENT KNOWLEDGE, MOST OF THE INDIVIDUALS CALLED
PSYCHOPATHIC PERSONALITIES SHOULD PROBABLY BE CONSIDERED AS SUFFERING
FROM NEUROTIC CHARACTER DISORDERS.  THEY ARE, FOR THE MOST PART,
UNHAPPY PERSONS, HARASSED BY TENSION AND ANXIETY, WHO ARE STRUGGLING
AGAINST UNCONSCIOUS CONFLICTS WHICH WERE CREATED DURING THE VERY EARLY
YEARS OF CHILDHOOD.  THE NATURE AND EVEN THE EXISTENCE OF THESE
CONFLICTS WHICH DRIVE THEM RESTLESSLY ON ARE UNKNOWN TO THEM.  WHEN THE
ANXIETY RISES TO A CERTAIN PITCH, THEY SEEK RELIEF THROUGH SOME
ANTISOCIAL ACT.  THE FREQUENCY WITH WHICH THIS PATTERN RECURS IN THE
INDIVIDUAL IS DEPENDENT IN PART UPON THE INTENSITY OF THE UNCONSCIOUS
CONFLICT, UPON THE TOLERANCE FOR ANXIETY, AND UPON CHANCE ENVIRONMENTAL
SITUATIONS WHICH MAY HEIGHTEN OR DECREASE IT.  ONE OF THE CHIEF
DIAGNOSTIC CRITERIA OF THIS TYPE OF NEUROTICALLY DETERMINED DELINQUENCY
IS THE REPETITIVENESS OF THE PATTERN.  THE USUAL EXPLANATION, AS FOR
EXAMPLE, THAT THE RECIDIVISTIC CHECK-WRITER HAS JUST 'GOT IN THE HABIT
OF WRITING BAD CHECKS' IS MEANINGLESS."  ID., AT 88-89. 

MANY EXPERTS THINK THAT IT IS A MEANINGLESS DESIGNATION.  "NOT YET IS
THERE ANY COMMON AGREEMENT ...  AS TO CLASSIFICATION OR  ...
ETIOLOGY."  NOYES, MODERN CLINICAL PSYCHIATRY 410 (3D ED. 1948).  "THE
ONLY CONCLUSION THAT SEEMS WARRANTABLE IS THAT, AT SOME TIME OR OTHER
AND BY SOME REPUTABLE AUTHORITY, THE TERM PSYCHOPATHIC PERSONALITY HAS
BEEN USED TO DESIGNATE EVERY CONCEIVABLE TYPE OF ABNORMAL CHARACTER." 
CURRAN & MALLINSON, PSYCHOPATHIC PERSONALITY, 90 J. MENTAL SCI.  266,
278.  SEE ALSO GUTTMACHER, DIAGNOSIS AND ETIOLOGY OF PSYCHOPATHIC
PERSONALITIES AS PERCEIVED IN OUR TIME, IN CURRENT PROBLEMS IN
PSYCHIATRIC DIAGNOSIS 139, 154 (HOCH & ZUBIN ED. 1953); TAPPAN, SEXUAL
OFFENCES AND THE TREATMENT OF SEXUAL OFFENDERS IN THE UNITED STATES, IN
SEXUAL OFFENCES 500, 507 (RADZINOWICZ ED. 1957).  IT IS MUCH TOO
TREACHEROUSLY VAGUE A TERM TO ALLOW THE HIGH PENALTY OF DEPORTATION TO
TURN ON IT. 

WHEN IT COMES TO SEX, THE PROBLEM IS COMPLEX.  THOSE "WHO FAIL TO
REACH SEXUAL MATURITY (HETERO-SEXUALITY), AND WHO REMAIN AT A
NARCISSISTIC OR HOMOSEXUAL STAGE" ARE THE PRODUCTS "OF HEREDITY, OF
GLANDULAR DYSFUNCTION, OR OF ENVIRONMENTAL CIRCUMSTANCES."  HENDERSON,
PSYCHOPATHIC CONSTITUTION AND CRIMINAL BEHAVIOUR, IN MENTAL ABNORMALITY
AND CRIME 105, 114 (RADZINOWICZ & TURNER ED. 1949). 

THE HOMOSEXUAL IS ONE, WHO BY SOME FREAK, IS THE PRODUCT OF AN
ARRESTED DEVELOPMENT: 

"ALL PEOPLE HAVE ORIGINALLY BISEXUAL TENDENCIES WHICH ARE MORE OR
LESS DEVELOPED AND WHICH IN THE COURSE OF TIME NORMALLY DEVIATE EITHER
IN THE DIRECTION OF MALE OR FEMALE.  THIS MAY INDICATE THAT A TRACE OF
HOMOSEXUALITY, NO MATTER HOW WEAK IT MAY BE, EXISTS IN EVERY HUMAN
BEING.  IT IS PRESENT IN THE ADOLESCENT STAGE, WHERE THERE IS A
CONSIDERABLE AMOUNT OF UNDIFFERENTIATED SEXUALITY."  ABRAHAMSEN, CRIME
AND THE HUMAN MIND 117 (1944). 

MANY HOMOSEXUALS BECOME INVOLVED IN VIOLATIONS OF LAWS; MANY DO NOT. 
KINSEY REPORTED: 

"IT IS NOT POSSIBLE TO INSIST THAT ANY DEPARTURE FROM THE SEXUAL
MORES, OR ANY PARTICIPATION IN SOCIALLY TABOO ACTIVITIES, ALWAYS, OR
EVEN USUALLY, INVOLVES A NEUROSIS OR PSYCHOSIS, FOR THE CASE HISTORIES
ABUNDANTLY DEMONSTRATE THAT MOST INDIVIDUALS WHO ENGAGE IN TABOO
ACTIVITIES MAKE SATISFACTORY SOCIAL ADJUSTMENTS.  THERE ARE, IN
ACTUALITY, FEW ADULT MALES WHO ARE PARTICULARLY DISTURBED OVER THEIR
SEXUAL HISTORIES.  PSYCHIATRISTS, CLINICAL PSYCHOLOGISTS, AND OTHERS
WHO DEAL WITH CASES OF MALADJUSTMENT, SOMETIMES COME TO FEEL THAT MOST
PEOPLE FIND DIFFICULTY IN ADJUSTING THEIR SEXUAL LIVES; BUT A CLINIC IS
NO WAY TO SECURE INCIDENCE FIGURES.  THE INCIDENCE OF TUBERCULOSIS IN A
TUBERCULOSIS SANITARIUM IS NO MEASURE OF THE INCIDENCE OF TUBERCULOSIS
IN THE POPULATION AS A WHOLE; AND THE INCIDENCE OF DISTURBANCE OVER
SEXUAL ACTIVITIES, AMONG THE PERSONS WHO COME TO A CLINIC, IS NO
MEASURE OF THE FREQUENCY OF SIMILAR DISTURBANCES OUTSIDE OF CLINICS. 
THE IMPRESSION THAT SUCH 'SEXUAL IRREGULARITIES' AS 'EXCESSIVE'
MASTURBATION, PRE-MARITAL INTERCOURSE, RESPONSIBILITY FOR A PRE-MARITAL
PREGNANCY, EXTRA-MARITAL INTERCOURSE, MOUTH-GENITAL CONTACTS,
HOMOSEXUAL ACTIVITY, OR ANIMAL INTERCOURSE, ALWAYS PRODUCE PSYCHOSES
AND ABNORMAL PERSONALITIES IS BASED UPON THE FACT THAT THE PERSONS WHO
DO GO TO PROFESSIONAL SOURCES FOR ADVICE ARE UPSET BY THESE THINGS. 

"IT IS UNWARRANTED TO BELIEVE THAT PARTICULAR TYPES OF SEXUAL
BEHAVIOR ARE ALWAYS EXPRESSIONS OF PSYCHOSES OR NEUROSES.  IN
ACTUALITY, THEY ARE MORE OFTEN EXPRESSIONS OF WHAT IS BIOLOGICALLY
BASIC IN MAMMALIAN AND ANTHROPOID BEHAVIOR, AND OF A DELIBERATE
DISREGARD FOR SOCIAL CONVENTION.  MANY OF THE SOCIALLY AND
INTELLECTUALLY MOST SIGNIFICANT PERSONS IN OUR HISTORIES, SUCCESSFUL
SCIENTISTS, EDUCATORS, PHYSICIANS, CLERGYMEN, BUSINESS MEN, AND PERSONS
OF HIGH POSITION IN GOVERNMENTAL AFFAIRS, HAVE SOCIALLY TABOO ITEMS IN
THEIR SEXUAL HISTORIES, AND AMONG THEM THEY HAVE ACCEPTED NEARLY THE
WHOLE RANGE OF SO-CALLED SEXUAL ABNORMALITIES.  AMONG THE SOCIALLY MOST
SUCCESSFUL AND PERSONALLY BEST ADJUSTED PERSONS WHO HAVE CONTRIBUTED TO
THE PRESENT STUDY, THERE ARE SOME WHOSE RATES OF OUTLET ARE AS HIGH AS
THOSE IN ANY CASE LABELLED NYMPHOMANIA OR SATYRIASIS IN THE LITERATURE,
OR RECOGNIZED AS SUCH IN THE CLINIC."  KINSEY, SEXUAL BEHAVIOR IN THE
HUMAN MALE 201-202 (1948). 

IT IS COMMON KNOWLEDGE THAT IN THIS CENTURY HOMOSEXUALS HAVE RISEN
HIGH IN OUR OWN PUBLIC SERVICE - BOTH IN CONGRESS AND IN THE EXECUTIVE
BRANCH - AND HAVE SERVED WITH DISTINCTION.  IT IS THEREFORE NOT
CREDIBLE THAT CONGRESS WANTED TO DEPORT EVERYONE AND ANYONE WHO WAS A
SEXUAL DEVIATE, NO MATTER HOW BLAMELESS HIS SOCIAL CONDUCT HAD BEEN NOR
HOW CREATIVE HIS WORK NOR HOW VALUABLE HIS CONTRIBUTION TO SOCIETY.  I
AGREE WITH JUDGE MOORE, DISSENTING BELOW, THAT THE LEGISLATIVE HISTORY
SHOULD NOT BE READ AS IMPUTING TO CONGRESS A PURPOSE TO CLASSIFY UNDER
THE HEADING "PSYCHOPATHIC PERSONALITY" EVERY PERSON WHO HAD EVER HAD A
HOMOSEXUAL EXPERIENCE: 

"PROFESSOR KINSEY ESTIMATED THAT 'AT LEAST 37 PER CENT' OF THE
AMERICAN MALE POPULATION HAS AT LEAST ONE HOMOSEXUAL EXPERIENCE,
DEFINED IN TERMS OF PHYSICAL CONTACT TO THE POINT OF ORGASM, BETWEEN
THE BEGINNING OF ADOLESCENCE AND OLD AGE.  (FN1)  KINSEY, POMEROY &
MARTIN, SEXUAL BEHAVIOR IN THE HUMAN MALE 623 (1948).  EARLIER
ESTIMATES HAD RANGED FROM ONE PERCENT TO 100 PER CENT.  ID. AT 616
622.  THE SPONSORS OF BRITAIN'S CURRENT REFORM BILL ON HOMOSEXUALITY
HAVE INDICATED THAT ONE MALE IN 25 IS A HOMOSEXUAL IN BRITAIN.  (FN2)
TO LABEL A GROUP SO LARGE 'EXCLUDABLE ALIENS' WOULD BE TANTAMOUNT TO
SAYING THAT SAPPHO, LEONARDO DA VINCI, MICHELANGELO, ANDRE GIDE, AND
PERHAPS EVEN SHAKESPEARE, WERE THEY TO COME TO LIFE AGAIN, WOULD BE
DEEMED UNFIT TO VISIT OUR SHORES.  (FN3) INDEED, SO BROAD A DEFINITION
MIGHT WELL COMPRISE MORE THAN A FEW MEMBERS OF LEGISLATIVE BODIES." 
363 F.2D 488, 497-498. 

THE PUBLIC HEALTH SERVICE, FROM WHOM CONGRESS BORROWED THE TERM
"PSYCHOPATHIC PERSONALITY" (H.R. REP. NO. 1365, 82D CONG., 2D SESS., 46
47) ADMITS THAT THE TERM IS "VAGUE AND INDEFINITE."  ID., AT 46. 

IF WE ARE TO HOLD, AS THE COURT APPARENTLY DOES, THAT ANY ACTS OF
HOMOSEXUALITY SUFFICE TO DEPORT THE ALIEN, WHETHER OR NOT THEY ARE PART
OF A FABRIC OF ANTISOCIAL BEHAVIOR, THEN WE FACE A SERIOUS QUESTION OF
DUE PROCESS.  BY THAT CONSTRUCTION A PERSON IS JUDGED BY A STANDARD
THAT IS ALMOST INCAPABLE OF DEFINITION.  I HAVE ALREADY QUOTED FROM
CLINICAL EXPERTS TO SHOW WHAT A WIDE RANGE THE TERM "PSYCHOPATHIC
PERSONALITY" HAS.  ANOTHER EXPERT  (FN4)  CLASSIFIES SUCH A PERSON
UNDER THREE HEADINGS: 

ACTING:  (1) INABILITY TO WITHSTAND TEDIUM, (2) LACK OF A SENSE OF
RESPONSIBILITY, (3) A TENDENCY TO "BLOW UP" UNDER PRESSURE, (4)
MALADJUSTMENT TO LAW AND ORDER, AND (5) RECIDIVISM. 

FEELING:  THEY TEND TO (1) BE EMOTIONALLY DEFICIENT, NARCISSISTIC,
CALLOUS, INCONSIDERATE, AND UNREMORSEFUL, GENERALLY PROJECTING BLAME ON
OTHERS, (2) HAVE HAIR-TRIGGER EMOTIONS, EXAGGERATED DISPLAY OF EMOTION,
AND BE IRRITABLE AND IMPULSIVE, (3) BE AMORAL (SOCIALLY AND SEXUALLY)
AND (4) WORRY, BUT DO NOTHING ABOUT IT. 

THINKING:  THEY DISPLAY (1) DEFECTIVE JUDGMENT, LIVING FOR THE
PRESENT RATHER THAN FOR THE FUTURE, AND (2) INABILITY TO PROFIT FROM
EXPERIENCE, I.E., THEY ARE ABLE TO REALIZE THE CONSEQUENCES
INTELLIGENTLY, BUT NOT TO EVALUATE THEM. 

WE HELD IN JORDAN V. DE GEORGE, 341 U.S. 223, THAT THE CRIME OF A
CONSPIRACY TO DEFRAUD THE UNITED STATES OF TAXES INVOLVED "MORAL
TURPITUDE" AND MADE THE PERSON SUBJECT TO DEPORTATION.  THAT, HOWEVER,
WAS A TERM THAT HAS "DEEP ROOTS IN THE LAW."  ID., AT 227.  BUT THE
GRAB-BAG - "PSYCHOPATHIC PERSONALITY" - HAS NO "DEEP ROOTS"
WHATSOEVER.  (FN5)  CAPRICE OF JUDGMENT IS ALMOST CERTAIN UNDER THIS
BROAD DEFINITION.  ANYONE CAN BE CAUGHT WHO IS UNPOPULAR, WHO IS OFF
BEAT, WHO IS NONCONFORMIST. 

DEPORTATION IS THE EQUIVALENT TO BANISHMENT OR EXILE.  FONG HAW TAN
V. PHELAN, 333 U.S. 6, 10.  THOUGH TECHNICALLY NOT CRIMINAL, IT
PRACTICALLY MAY BE.  THE PENALTY IS SO SEVERE THAT WE HAVE EXTENDED TO
THE RESIDENT ALIEN THE PROTECTION OF DUE PROCESS.  WONG YANG SUNG V.
MCGRATH, 339 U.S. 33.  EVEN APART FROM DEPORTATION CASES, WE LOOK WITH
SUSPICION AT THOSE DELEGATIONS OF POWER SO BROAD AS TO ALLOW THE
ADMINISTRATIVE STAFF THE POWER TO FORMULATE THE FUNDAMENTAL POLICY. 
SEE WATKINS V. UNITED STATES, 354 U.S. 178, 203-205; KENT V. DULLES,
357 U.S. 116.  IN THE WATKINS CASE WE WERE PROTECTING IMPORTANT FIRST
AMENDMENT RIGHTS.  IN THE KENT CASE WE WERE PROTECTING THE RIGHT TO
TRAVEL, AN IMPORTANT INGREDIENT OF A PERSON'S "LIBERTY" WITHIN THE
MEANING OF THE FIFTH AMENDMENT.  WE DEAL HERE ALSO WITH AN ASPECT OF
"LIBERTY" AND THE REQUIREMENTS OF DUE PROCESS.  THEY DEMAND THAT THE
STANDARD BE SUFFICIENTLY CLEAR AS TO FOREWARN THOSE WHO MAY OTHERWISE
BE ENTRAPPED AND TO PROVIDE FULL OPPORTUNITY TO CONFORM.  "PSYCHOPATHIC
PERSONALITY" IS SO BROAD AND VAGUE AS TO BE HARDLY MORE THAN AN
EPITHET.  THE COURT SEEKS TO AVOID THIS QUESTION BY SAYING THAT THE
STANDARD BEING APPLIED RELATES ONLY TO WHAT PETITIONER HAD DONE PRIOR
TO HIS ENTRY, NOT TO HIS POSTENTRY CONDUCT.  BUT AT LEAST HALF OF THE
QUESTIONING OF THIS PETITIONER RELATED TO HIS POSTENTRY CONDUCT. 

MOREOVER, THE ISSUE OF DEPORTABILITY UNDER SEC 212(A) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952 TURNS ON WHETHER PETITIONER IS
"AFFLICTED WITH PSYCHOPATHIC PERSONALITY."  ON THIS I THINK HE IS
ENTITLED TO A HEARING TO SATISFY BOTH THE STATUTE AND THE REQUIRMENT OF
DUE PROCESS. 

ONE PSYCHIATRIST REPORTED: 

"ON PSYCHIATRIC EXAMINATION OF MR. BOUTILIER, THERE WAS NO INDICATION
OF DELUSIONAL TREND OR HALLUCINATORY PHENOMENA.  HE IS NOT PSYCHOTIC. 
FROM HIS OWN ACCOUNT, HE HAS A PSYCHOSEXUAL PROBLEM BUT IS BEGINNING
TREATMENT FOR THIS DISORDER.  DIAGNOSTICALLY, I WOULD CONSIDER HIM AS
HAVING A CHARACTER NEUROSIS, BELIEVE THAT THE PROGNOSIS IN THERAPY IS
REASONABLY GOOD AND DO NOT THINK HE REPRESENTS ANY RISK OF
DECOMPENSATION INTO A DEPENDENT PSYCHOTIC REACTION NOR ANY POTENTIAL
FOR FRANK CRIMINAL ACTIVITY." 

ANOTHER SUBMITTED A LONG REPORT ENDING AS FOLLOWS: 

"THE PATIENT'S PRESENT DIFFICULTIES OBVIOUSLY WEIGH VERY HEAVILY UPON
HIM.  HE FEELS AS IF HE HAS MADE HIS LIFE IN THIS COUNTRY AND IS DEEPLY
DISTURBED AT THE PROSPECT OF BEING CUT OFF FROM THE LIFE HE HAS CREATED
FOR HIMSELF.  HE TALKS FRANKLY ABOUT HIMSELF.  WHAT EMERGED OUT OF THE
INTERVIEW WAS NOT A PICTURE OF A PSYCHOPATH BUT THAT OF A DEPENDENT,
IMMATURE YOUNG MAN WITH A CONSCIENCE, AN AWARENESS OF THE FEELINGS OF
OTHERS AND A SENSE OF PERSONAL HONESTY.  HIS SEXUAL STRUCTURE STILL
APPEARS FLUID AND IMMATURE SO THAT HE MOVES FROM HOMOSEXUAL TO
HETEROSEXUAL INTERESTS AS WELL AS ABSTINENCE WITH ALMOST EQUAL
FACILITY.  HIS HOMOSEXUAL ORIENTATION SEEMS SECONDARY TO A VERY
CONSTRICTED, DEPENDENT PERSONALITY PATTERN RATHER THAN OCCURRING IN THE
CONTEXT OF A PSYCHOPATHIC PERSONALITY.  MY OWN FEELING IS THAT HIS OWN
NEED TO FIT IN AND BE ACCEPTED IS SO GREAT THAT IT FAR SURPASSES HIS
NEED FOR SEX IN ANY FORM.    "I DO NOT BELIEVE THAT MR. BOUTILIER IS A
PSYCHOPATH." 

IN LIGHT OF THESE STATEMENTS, I CANNOT SAY THAT IT HAS BEEN
DETERMINED THAT PETITIONER WAS "AFFLICTED" IN THE STATUTORY SENSE
EITHER AT THE TIME OF ENTRY OR AT PRESENT.  "AFFLICTED" MEANS POSSESSED
OR DOMINATED BY.  OCCASIONAL ACTS WOULD NOT SEEM SUFFICIENT. 
"AFFLICTED" MEANS A WAY OF LIFE, AN ACCUSTOMED PATTERN OF CONDUCT. 
WHATEVER DISAGREEMENT THERE IS AS TO THE MEANING OF "PSYCHOPATHIC
PERSONALITY," IT HAS GENERALLY BEEN UNDERSTOOD TO REFER TO A
CONSISTENT, LIFELONG PATTERN OF BEHAVIOR CONFLICTING WITH SOCIAL NORMS
WITHOUT ACCOMPANYING GUILT.  CLECKLEY, SUPRA, AT 29.  (FN6)  NOTHING OF
THAT CHARACTER WAS SHOWN TO EXIST AT THE TIME OF ENTRY.  THE FACT THAT
HE PRESENTLY HAS A PROBLEM, AS ONE PSYCHIATRIST SAID, DOES NOT MEAN
THAT HE IS OR WAS NECESSARILY "AFFLICTED" WITH HOMOSEXUALITY.  HIS
CONDUCT IS, OF COURSE, EVIDENCE MATERIAL TO THE ISSUE.  BUT THE
INFORMED JUDGMENT OF EXPERTS IS NEEDED TO MAKE THE REQUIRED FINDING. 
WE CRUELLY MUTILATE THE ACT WHEN WE HOLD OTHERWISE.  FOR WE MAKE THE
WORD OF THE BUREAUCRAT SUPREME, WHEN IT WAS THE EXPERTISE OF THE
DOCTORS AND PSYCHIATRISTS ON WHICH CONGRESS WANTED THE ADMINISTRATIVE
ACTION TO BE DEPENDENT. 

FN1  "HOMOSEXUAL ACTIVITY IN THE HUMAN MALE IS MUCH MORE FREQUENT
THAN IS ORDINARILY REALIZED  ...  .  IN THE YOUNGEST UNMARRIED GROUP,
MORE THAN A QUARTER (27.3%) OF THE MALES HAVE SOME HOMOSEXUAL ACTIVITY
TO THE POINT OF ORGASM  ...  .  THE INCIDENCE AMONG THESE SINGLE MALES
RISES IN SUCCESSIVE AGE GROUPS UNTIL IT REACHES A MAXIMUM OF 38.7
PERCENT BETWEEN 36 AND 40 YEARS OF AGE. 

"HIGH FREQUENCIES DO NOT OCCUR AS OFTEN IN THE HOMOSEXUAL AS THEY DO
IN SOME OTHER KINDS OF SEXUAL ACTIVITY  ...  .  POPULATIONS ARE MORE
HOMOGENEOUS IN REGARD TO THIS OUTLET.  THIS MAY REFLECT THE
DIFFICULTIES INVOLVED IN HAVING FREQUENT AND REGULAR RELATIONS IN A
SOCIALLY TABOO ACTIVITY.  NEVERTHELESS, THERE ARE A FEW OF THE YOUNGER
ADOLESCENT MALES WHO HAVE HOMOSEXUAL FREQUENCIES OF 7 OR MORE PER WEEK,
AND BETWEEN 26 AND 30 THE MAXIMUM FREQUENCIES RUN TO 15 PER WEEK.  BY
50 YEARS OF AGE THE MOST ACTIVE INDIVIDUAL IS AVERAGING ONLY 5.0 PER
WEEK. 

"FOR SINGLE, ACTIVE POPULATIONS, THE MEAN FREQUENCIES OF HOMOSEXUAL
CONTACTS  ... RISE MORE OR LESS STEADILY FROM NEAR ONCE PER WEEK  ...
FOR THE YOUNGER ADOLESCENT BOYS TO NEARLY TWICE AS OFTEN  ...  FOR
MALES BETWEEN THE AGES OF 31 AND 35.  THEY STAND ABOVE ONCE A WEEK
THROUGH AGE 50."  KINSEY, SEXUAL BEHAVIOR IN THE HUMAN MALE 259-261
(1948). 

FN2  REPORT, COMMITTEE ON HOMOSEXUAL OFFENSES AND PROSTITUTION
(1957). 

FN3  SIGMUND FREUD WROTE IN 1935: 

"HOMOSEXUALITY IS ASSUREDLY NO ADVANTAGE, BUT IT IS NOTHING TO BE
ASHAMED OF, NO VICE, NO DEGRADATION, IT CANNOT BE CLASSIFIED AS AN
ILLNESS; WE CONSIDER IT TO BE A VARIATION OF THE SEXUAL FUNCTION
PRODUCED BY A CERTAIN ARREST OF SEXUAL DEVELOPMENT.  MANY HIGHLY
RESPECTABLE INDIVIDUALS OF ANCIENT AND MODERN TIMES HAVE BEEN
HOMOSEXUALS, SEVERAL OF THE GREATEST MEN AMONG THEM (PLATO,
MICHELANGELO, LEONARDO DA VINCI, ETC.).  IT IS A GREAT INJUSTICE TO
PERSECUTE HOMOSEXUALITY AS A CRIME, AND CRUELTY TOO.  IF YOU DO NOT
BELIEVE ME, READ THE BOOKS OF HAVELOCK ELLIS."  RUITENBEEK, THE PROBLEM
OF HOMOSEXUALITY IN MODERN SOCIETY 1 (1963). 

FN4  CALDWELL, CONSTITUTIONAL PSYCHOPATHIC STATE (PSYCHOPATHIC
PERSONALITY) STUDIES OF SOLDIERS IN THE U.S. ARMY, 3 J. CRIM.
PSYCHOPATHOLOGY 171-172 (1941). 

FN5  SEE LINDMAN & MCINTYRE, THE MENTALLY DISABLED AND THE LAW 299
(1961). 

FN6  THERE IS GOOD INDICATION THAT CONGRESS INTENDED THE TERM
"AFFLICTED WITH PSYCHOPATHIC PERSONALITY" TO REFER ONLY TO THOSE
INDIVIDUALS DEMONSTRATING "DEVELOPMENTAL DEFECTS OR PATHOLOGICAL TRENDS
IN THE PERSONALITY STRUCTURE MANIFESTED BY LIFELONG PATTERNS OF ACTION
OR BEHAVIOR  ...  ."  U.S. PUBLIC HEALTH SERVICE, REPORT ON MEDICAL
ASPECTS OF H.R. 2379, U.S.C. CONG. & ADMIN.  NEWS 1700 (1952).  THE
PROVISION FOR EXCLUSION OF PERSONS AFFLICTED WITH PSYCHOPATHIC
PERSONALITY REPLACED THE SECTION OF THE 1917 ACT, 39 STAT. 875,
PROVIDING FOR THE EXCLUSION OF "PERSONS OF CONSTITUTIONAL PSYCHOPATHIC
INFERIORITY."  THE PURPOSE OF THAT CLAUSE WAS "TO KEEP OUT 'TAINTED
BLOOD,' THAT IS, 'PERSONS WHO HAVE MEDICAL TRAITS WHICH WOULD HARM THE
PEOPLE OF THE UNITED STATES IF THOSE TRAITS WERE INTRODUCED IN THIS
COUNTRY, OR IF THOSE POSSESSING THOSE TRAITS WERE ADDED TO THOSE IN
THIS COUNTRY WHO UNFORTUNATELY ARE SO AFFLICTED.'" 

THE IMMIGRATION AND NATURALIZATION SYSTEMS OF THE UNITED STATES, S.
REP. NO. 1515, 81ST CONG., 2D SESS., 343 (1950).  THE SENATE
SUBCOMMITTEE WHICH HAD BEEN CHARGED WITH MAKING AN INVESTIGATION OF THE
IMMIGRATION LAWS CONCLUDED THAT "THE EXCLUSION OF PERSONS WITH
'CONSTITUTIONAL PSYCHOPATHIC INFERIORITY' WAS AIMED AT KEEPING OUT OF
THE COUNTRY ALIENS WITH A PROPENSITY TO MENTAL ABERRATION, THOSE WITH
AN INHERENT LIKELIHOOD OF BECOMING MENTAL CASES, AS INDICATED BY THEIR
CASE HISTORY."  IBID.  IT CONCLUDED THAT "THE PURPOSE OF THE PROVISION
AGAINST 'PERSONS WITH CONSTITUTIONAL PSYCHOPATHIC INFERIORITY' WILL BE
MORE ADEQUATELY SERVED BY CHANGING THAT TERM TO 'PERSONS AFFLICTED WITH
PSYCHOPATHIC PERSONALITY,' AND THAT THE CLASSES OF MENTALLY DEFECTIVES
SHOULD BE ENLARGED TO INCLUDE HOMOSEXUALS AND OTHER SEX PERVERTS." 
ID., AT 345.  SENATE REPORT 1515 ACCOMPANIED SENATE BILL 3455, WHICH
INCLUDED AMONG EXCLUDABLE ALIENS "ALIENS AFFLICTED WITH PSYCHOPATHIC
PERSONALITY," AND "ALIENS WHO ARE HOMOSEXUALS OR SEX PERVERTS."  THE
BILL WAS REDRAFTED AND BECAME S. 716, WITH ITS COUNTERPART IN THE HOUSE
BEING H.R. 2379; THE MATERIAL PROVISIONS REMAINED THE SAME AS IN S.
3455.  IN RESPONSE TO THE HOUSE'S REQUEST FOR ITS OPINION ON THE NEW
PROVISIONS, THE PUBLIC HEALTH SERVICE NOTED THAT: 

"THE CONDITIONS CLASSIFIED WITHIN THE GROUP OF PSYCHOPATHIC
PERSONALITIES ARE, IN EFFECT, DISORDERS OF THE PERSONALITY.  THEY ARE
CHARACTERIZED BY DEVELOPMENTAL DEFECTS OR PATHOLOGICAL TRENDS IN THE
PERSONALITY STRUCTURE MANIFEST BY LIFELONG PATTERNS OF ACTION OR
BEHAVIOR, RATHER THAN BY MENTAL OR EMOTIONAL SYMPTOMS.  INDIVIDUALS
WITH SUCH A DISORDER MAY MANIFEST A DISTURBANCE OF INTRINSIC
PERSONALITY PATTERNS, EXAGGERATED PERSONALITY TRENDS, OR ARE PERSONS
ILL PRIMARILY IN TERMS OF SOCIETY AND THE PREVAILING CULTURE.  THE
LATTER OR SOCIOPATHIC REACTIONS ARE FREQUENTLY SYMPTOMATIC OF A SEVERE
UNDERLYING NEUROSIS OR PSYCHOSIS AND FREQUENTLY INCLUDE THOSE GROUPS OF
INDIVIDUALS SUFFERING FROM ADDICTION OR SEXUAL DEVIATION."  U.S.C.
CONG. & ADMIN. NEWS 1700 (1952). 

THE LETTER SETTING FORTH THE VIEWS OF THE PUBLIC HEALTH SERVICE WENT
ON TO SAY, WITH RESPECT TO THE EXCLUSION OF "HOMOSEXUALS OR SEX
PERVERTS": 

"ORDINARILY PERSONS SUFFERING FROM DISTURBANCES IN SEXUALITY ARE
INCLUDED WITHIN THE CLASSIFICATION OF 'PSYCHOPATHIC PERSONALITY WITH
PATHOLOGIC SEXUALITY.'  THIS CLASSIFICATION WILL SPECIFY SUCH TYPES OF
PATHOLOGIC BEHAVIOR AS HOMOSEXUALITY OR SEXUAL PERVERSION WHICH
INCLUDES SEXUAL SADISM, FETISHISM, TRANSVESTISM, PEDOPHILIA, ETC."
ID., AT 1701.  THE BILL WHICH WAS FINALLY ENACTED, H.R. 5678, PROVIDED
FOR EXCLUSION OF "ALIENS AFFLICTED WITH PSYCHOPATHIC PERSONALITY," BUT
DID NOT PROVIDE FOR EXCLUSION OF ALIENS WHO ARE HOMOSEXUALS OR SEX
PERVERTS, AS HAD ITS PREDECESSORS.  THE HOUSE REPORT, H.R. REP. NO.
1365, WHICH ACCOMPANIED THE BILL INCORPORATED THE FULL REPORT OF THE
PUBLIC HEALTH SERVICE (H.R. REP. NO. 1365, 82D CONG., 2D SESS., AT 46
48) AND INDICATED THAT THE "RECOMMENDATIONS CONTAINED IN THE  ...
REPORT HAVE BEEN FOLLOWED."  ID., AT 48. 

THIS LEGISLATIVE HISTORY INDICATES THAT THE TERM "AFFLICTED WITH
PSYCHOPATHIC PERSONALITY" WAS USED IN A MEDICAL SENSE AND WAS MEANT TO
REFER TO LIFELONG PATTERNS OF ACTION THAT ARE PATHOLOGIC AND
SYMPTOMATIC OF GRAVE UNDERLYING NEUROSIS OR PSYCHOSIS.  HOMOSEXUALITY
AND SEX PERVERSION, AS A SUBCLASS, ARE LIMITED TO THE SAME
AFFLICTIONS. 
..END :












ABBOTT LABORATORIES V. GARDNER 387 U.S. 136 


NO. 39.  ARGUED JANUARY 16, 1967.  - DECIDED MAY 22, 1967.  - 352 F.2D
286, REVERSED AND REMANDED. 


THE COMMISSIONER OF FOOD AND DRUGS, EXERCISING AUTHORITY DELEGATED TO
HIM BY THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ISSUED
REGULATIONS REQUIRING THAT LABELS AND ADVERTISEMENTS FOR PRESCRIPTION
DRUGS WHICH BEAR PROPRIETARY NAMES FOR THE DRUGS OR THE INGREDIENTS
CARRY THE CORRESPONDING "ESTABLISHED NAME" (DESIGNATED BY THE
SECRETARY) EVERY TIME THE PROPRIETARY OR TRADE NAME IS USED.  THESE
REGULATIONS WERE DESIGNED TO IMPLEMENT THE 1962 AMENDMENT TO SEC.
502(E)(1)(B) OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT.  PETITIONERS,
DRUG MANUFACTURERS AND A MANUFACTURERS' ASSOCIATION, CHALLENGED THE
REGULATIONS ON THE GROUND THAT THE COMMISSIONER EXCEEDED HIS AUTHORITY
UNDER THE STATUTE.  THE DISTRICT COURT GRANTED THE DECLARATORY AND
INJUNCTIVE RELIEF SOUGHT, FINDING THAT THE SCOPE OF THE STATUTE WAS NOT
AS BROAD AS THAT OF THE REGULATIONS.  THE COURT OF APPEALS REVERSED
WITHOUT REACHING THE MERITS, HOLDING THAT PRE-ENFORCEMENT REVIEW OF THE
REGULATIONS WAS UNAUTHORIZED AND BEYOND THE JURISDICTION OF THE
DISTRICT COURT, AND THAT NO "ACTUAL CASE OR CONTROVERSY" EXISTED. 
HELD: 

1.  PRE-ENFORCEMENT REVIEW OF THESE REGULATIONS IS NOT PROHIBITED BY
THE FEDERAL FOOD, DRUG, AND COSMETIC ACT.  PP. 139-148. 

(A)  THE COURTS SHOULD RESTRICT ACCESS TO JUDICIAL REVIEW ONLY UPON A
SHOWING OF "CLEAR AND CONVINCING EVIDENCE" OF A CONTRARY LEGISLATIVE
INTENT.  RUSK V. CORT, 369 U.S. 367, 379-380.  PP. 139-141. 

(B)  THE STATUTORY SCHEME IN THE FOOD AND DRUG AREA DOES NOT EXCLUDE
PRE-ENFORCEMENT JUDICIAL REVIEW.  PP. 141-144. 

(C)  THE SPECIAL-REVIEW PROVISIONS OF SEC. 701(F) OF THE ACT,
APPLYING TO REGULATIONS EMBODYING TECHNICAL FACTUAL DETERMINATIONS,
WERE SIMPLY INTENDED TO ASSURE ADEQUATE JUDICIAL REVIEW OF SUCH AGENCY
DECISIONS AND MANIFEST NO CONGRESSIONAL PURPOSE TO ELIMINATE REVIEW OF
OTHER KINDS OF AGENCY ACTION.  P. 144. 

(D)  THE SAVING CLAUSE OF SEC. 701(F)(6) WHICH STATES THAT THE
"REMEDIES PROVIDED FOR IN THIS SUBSECTION SHALL BE IN ADDITION TO AND
NOT IN SUBSTITUTION FOR ANY OTHER REMEDIES PROVIDED BY LAW," DOES NOT
FORECLOSE PRE-ENFORCEMENT JUDICIAL REVIEW AND SHOULD BE READ IN HARMONY
WITH THE POLICY FAVORING JUDICIAL REVIEW EXPRESSED IN THE
ADMINISTRATIVE PROCEDURE ACT AND COURT DECISIONS.  PP. 144-146. 

(E)  EWING V. MYTINGER & CASSELBERRY, INC., 339 U.S. 594, WHICH DID
NOT CONCERN THE PROMULGATION OF A SELF-OPERATIVE INDUSTRY-WIDE
REGULATION, DISTINGUISHED.  PP. 146-148. 

2.  THIS CASE PRESENTS A CONTROVERSY "RIPE" FOR JUDICIAL RESOLUTION. 
PP. 148-156. 

(A)  THE ISSUE OF STATUTORY CONSTRUCTION IS PURELY LEGAL, AND THE
REGULATIONS ARE "FINAL AGENCY ACTION" WITHIN SEC. 10 OF THE
ADMINISTRATIVE PROCEDURE ACT.  COLUMBIA BROADCASTING SYSTEM V. UNITED
STATES, 316 U.S. 407, AND SIMILAR CASES FOLLOWED.  PP. 149-152. 

(B)  THE IMPACT OF THE REGULATIONS UPON PETITIONERS IS SUFFICIENTLY
DIRECT AND IMMEDIATE AS TO RENDER THE ISSUE APPROPRIATE FOR JUDICIAL
REVIEW AT THIS STAGE.  PP. 152-154. 

(C)  HERE THE PRE-ENFORCEMENT CHALLENGE BY NEARLY ALL PRESCRIPTION
DRUG MANUFACTURERS IS NOT CALCULATED TO DELAY OR IMPEDE EFFECTIVE
ENFORCEMENT OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT.  PP. 154-155. 

ABBOTT LABORATORIES ET AL. V. GARDNER, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN 1962 CONGRESS AMENDED THE FEDERAL FOOD, DRUG, AND COSMETIC ACT (52
STAT. 1040, AS AMENDED BY THE DRUG AMENDMENTS OF 1962, 76 STAT. 780, 21
U.S.C. SEC. 301 ET SEQ.), TO REQUIRE MANUFACTURERS OF PRESCRIPTION
DRUGS TO PRINT THE "ESTABLISHED NAME" OF THE DRUG "PROMINENTLY AND IN
TYPE AT LEAST HALF AS LARGE AS THAT USED THEREON FOR ANY PROPRIETARY
NAME OR DESIGNATION FOR SUCH DRUG," ON LABELS AND OTHER PRINTED
MATERIAL, SEC. 502(E)(1)(B), 21 U.S.C. SEC. 352(E)(1)(B).  THE
"ESTABLISHED NAME" IS ONE DESIGNATED BY THE SECRETARY OF HEALTH,
EDUCATION, AND WELFARE PURSUANT TO SEC. 502(E)(2) OF THE ACT, 21 U.S.C.
SEC.  352(E)(2); THE "PROPRIETARY NAME" IS USUALLY A TRADE NAME UNDER
WHICH A PARTICULAR DRUG IS MARKETED.  THE UNDERLYING PURPOSE OF THE
1962 AMENDMENT WAS TO BRING TO THE ATTENTION OF DOCTORS AND PATIENTS
THE FACT THAT MANY OF THE DRUGS SOLD UNDER FAMILIAR TRADE NAMES ARE
ACTUALLY IDENTICAL TO DRUGS SOLD UNDER THEIR "ESTABLISHED" OR LESS
FAMILIAR TRADE NAMES AT SIGNIFICANTLY LOWER PRICES.  THE COMMISSIONER
OF FOOD AND DRUGS, EXERCISING AUTHORITY DELEGATED TO HIM BY THE
SECRETARY, 22 FED. REG. 1051, 25 FED. REG.  8625, PUBLISHED PROPOSED
REGULATIONS DESIGNED TO IMPLEMENT THE STATUTE, 28 FED. REG.  1448. 
AFTER INVITING AND CONSIDERING COMMENTS SUBMITTED BY INTERESTED PARTIES
THE COMMISSIONER PROMULGATED THE FOLLOWING REGULATION FOR THE
"EFFICIENT ENFORCEMENT" OF THE ACT, SEC. 701(A), 21 U.S.C. SEC.
371(A): 

"IF THE LABEL OR LABELING OF A PRESCRIPTION DRUG BEARS A PROPRIETARY
NAME OR DESIGNATION FOR THE DRUG OR ANY INGREDIENT THEREOF, THE
ESTABLISHED NAME, IF SUCH THERE BE, CORRESPONDING TO SUCH PROPRIETARY
NAME OR DESIGNATION, SHALL ACCOMPANY EACH APPEARANCE OF SUCH
PROPRIETARY NAME OR DESIGNATION."  21 CFR SEC. 1.104(G)(1). 

A SIMILAR RULE WAS MADE APPLICABLE TO ADVERTISEMENTS FOR PRESCRIPTION
DRUGS, 21 CFR SEC. 1.105(B)(1). 

THE PRESENT ACTION WAS BROUGHT BY A GROUP OF 37 INDIVIDUAL DRUG
MANUFACTURERS AND BY THE PHARMACEUTICAL MANUFACTURERS ASSOCIATION, OF
WHICH ALL THE PETITIONER COMPANIES ARE MEMBERS, AND WHICH INCLUDES
MANUFACTURERS OF MORE THAN 90% OF THE NATION'S SUPPLY OF PRESCRIPTION
DRUGS.  THEY CHALLENGED THE REGULATIONS ON THE GROUND THAT THE
COMMISSIONER EXCEEDED HIS AUTHORITY UNDER THE STATUTE BY PROMULGATING
AN ORDER REQUIRING LABELS, ADVERTISEMENTS, AND OTHER PRINTED MATTER
RELATING TO PRESCRIPTION DRUGS TO DESIGNATE THE ESTABLISHED NAME OF THE
PARTICULAR DRUG INVOLVED EVERY TIME ITS TRADE NAME IS USED ANYWHERE IN
SUCH MATERIAL. 

THE DISTRICT COURT, ON CROSS MOTIONS FOR SUMMARY JUDGMENT, GRANTED
THE DECLARATORY AND INJUNCTIVE RELIEF SOUGHT, FINDING THAT THE STATUTE
DID NOT SWEEP SO BROADLY AS TO PERMIT THE COMMISSIONER'S "EVERY TIME"
INTERPRETATION.  228 F. SUPP. 855.  THE COURT OF APPEALS FOR THE THIRD
CIRCUIT REVERSED WITHOUT REACHING THE MERITS OF THE CASE.  352 F.2D
286.  IT HELD FIRST THAT UNDER THE STATUTORY SCHEME PROVIDED BY THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT PRE-ENFORCEMENT (FN1) REVIEW OF
THESE REGULATIONS WAS UNAUTHORIZED AND THEREFORE BEYOND THE
JURISDICTION OF THE DISTRICT COURT.  SECOND, THE COURT OF APPEALS HELD
THAT NO "ACTUAL CASE OR CONTROVERSY" EXISTED AND, FOR THAT REASON, THAT
NO RELIEF UNDER THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. SECS. 701
704 (1964 ED., SUPP. II), OR UNDER THE DECLARATORY JUDGMENT ACT, 28
U.S.C. SEC. 2201, WAS IN ANY EVENT AVAILABLE.  BECAUSE OF THE GENERAL
IMPORTANCE OF THE QUESTION, AND THE APPARENT CONFLICT WITH THE DECISION
OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN TOILET GOODS ASSN. V.
GARDNER, 360 F.2D 677, WHICH WE ALSO REVIEW TODAY, POST, P. 158, WE
GRANTED CERTIORARI.  383 U.S. 924. 

       I. 

THE FIRST QUESTION WE CONSIDER IS WHETHER CONGRESS BY THE FEDERAL
FOOD, DRUG, AND COSMETIC ACT INTENDED TO FORBID PRE-ENFORCEMENT REVIEW
OF THIS SORT OF REGULATION PROMULGATED BY THE COMMISSIONER.  THE
QUESTION IS PHRASED IN TERMS OF "PROHIBITION" RATHER THAN
"AUTHORIZATION" BECAUSE A SURVEY OF OUR CASES SHOWS THAT JUDICIAL
REVIEW OF A FINAL AGENCY ACTION BY AN AGGRIEVED PERSON WILL NOT BE CUT
OFF UNLESS THERE IS PERSUASIVE REASON TO BELIEVE THAT SUCH WAS THE
PURPOSE OF CONGRESS.  BOARD OF GOVERNORS V. AGNEW, 329 U.S. 441;
HEIKKILA V. BARBER, 345 U.S. 229; BROWNELL V. TOM WE SHUNG, 352 U.S.
180; HARMON V. BRUCKER, 355 U.S. 579; LEEDOM V. KYNE, 358 U.S. 184;
RUSK V. CORT, 369 U.S. 367.  EARLY CASES IN WHICH THIS TYPE OF JUDICIAL
REVIEW WAS ENTERTAINED, E.G., SHIELDS V. UTAH IDAHO CENTRAL R. CO., 305
U.S. 177; STARK V. WICKARD, 321 U.S. 288, HAVE BEEN REINFORCED BY THE
ENACTMENT OF THE ADMINISTRATIVE PROCEDURE ACT, WHICH EMBODIES THE BASIC
PRESUMPTION OF JUDICIAL REVIEW TO ONE "SUFFERING LEGAL WRONG BECAUSE OF
AGENCY ACTION, OR ADVERSELY AFFECTED OR AGGRIEVED BY AGENCY ACTION
WITHIN THE MEANING OF A RELEVANT STATUTE," 5 U.S.C.  SEC. 702, SO LONG
AS NO STATUTE PRECLUDES SUCH RELIEF OR THE ACTION IS NOT ONE COMMITTED
BY LAW TO AGENCY DISCRETION, 5 U.S.C. SEC. 701(A).  THE ADMINISTRATIVE
PROCEDURE ACT PROVIDES SPECIFICALLY NOT ONLY FOR REVIEW OF "AGENCY
ACTION MADE REVIEWABLE BY STATUTE" BUT ALSO FOR REVIEW OF "FINAL AGENCY
ACTION FOR WHICH THERE IS NO OTHER ADEQUATE REMEDY IN A COURT," 5
U.S.C. SEC. 704.  THE LEGISLATIVE MATERIAL ELUCIDATING THAT SEMINAL ACT
MANIFESTS A CONGRESSIONAL INTENTION THAT IT COVER A BROAD SPECTRUM OF
ADMINISTRATIVE ACTIONS, (FN2) AND THIS COURT HAS ECHOED THAT THEME BY
NOTING THAT THE ADMINISTRATIVE PROCEDURE ACT'S "GENEROUS REVIEW
PROVISIONS" MUST BE GIVEN A "HOSPITABLE" INTERPRETATION.  SHAUGHNESSY
V. PEDREIRO, 349 U.S. 48, 51; SEE UNITED STATES V. INTERSTATE COMMERCE
COMM'N, 337 U.S. 426, 433-435; BROWNELL V. TOM WE SHUNG, SUPRA;
HEIKKILA V. BARBER, SUPRA.  AGAIN IN RUSK V. CORT, SUPRA, AT 379-380,
THE COURT HELD THAT ONLY UPON A SHOWING OF "CLEAR AND CONVINCING
EVIDENCE" OF A CONTRARY LEGISLATIVE INTENT SHOULD THE COURTS RESTRICT
ACCESS TO JUDICIAL REVIEW.  SEE ALSO JAFFE, JUDICIAL CONTROL OF
ADMINISTRATIVE ACTION 336-359 (1965). 

GIVEN THIS STANDARD, WE ARE WHOLLY UNPERSUADED THAT THE STATUTORY
SCHEME IN THE FOOD AND DRUG AREA EXCLUDES THIS TYPE OF ACTION.  THE
GOVERNMENT RELIES ON NO EXPLICIT STATUTORY AUTHORITY FOR ITS ARGUMENT
THAT PRE-ENFORCEMENT REVIEW IS UNAVAILABLE, BUT INSISTS INSTEAD THAT
BECAUSE THE STATUTE INCLUDES A SPECIFIC PROCEDURE FOR SUCH REVIEW OF
CERTAIN ENUMERATED KINDS OF REGULATIONS, (FN3) NOT ENCOMPASSING THOSE
OF THE KIND INVOLVED HERE, OTHER TYPES WERE NECESSARILY MEANT TO BE
EXCLUDED FROM ANY PRE-ENFORCEMENT REVIEW.  THE ISSUE, HOWEVER, IS NOT
SO READILY RESOLVED; WE MUST GO FURTHER AND INQUIRE WHETHER IN THE
CONTEXT OF THE ENTIRE LEGISLATIVE SCHEME THE EXISTENCE OF THAT
CIRCUMSCRIBED REMEDY EVINCES A CONGRESSIONAL PURPOSE TO BAR AGENCY
ACTION NOT WITHIN ITS PURVIEW FROM JUDICIAL REVIEW.  AS A LEADING
AUTHORITY IN THIS FIELD HAS NOTED, "THE MERE FACT THAT SOME ACTS ARE
MADE REVIEWABLE SHOULD NOT SUFFICE TO SUPPORT AN IMPLICATION OF
EXCLUSION AS TO OTHERS.  THE RIGHT TO REVIEW IS TOO IMPORTANT TO BE
EXCLUDED ON SUCH SLENDER AND INDETERMINATE EVIDENCE OF LEGISLATIVE
INTENT."  JAFFE, SUPRA, AT 357. 

IN THIS CASE THE GOVERNMENT HAS NOT DEMONSTRATED SUCH A PURPOSE;
INDEED, A STUDY OF THE LEGISLATIVE HISTORY SHOWS RATHER CONCLUSIVELY
THAT THE SPECIFIC REVIEW PROVISIONS WERE DESIGNED TO GIVE AN ADDITIONAL
REMEDY AND NOT TO CUT DOWN MORE TRADITIONAL CHANNELS OF REVIEW.  AT THE
TIME THE FOOD, DRUG, AND COSMETIC ACT WAS UNDER CONSIDERATION, IN THE
LATE 1930'S, THE ADMINISTRATIVE PROCEDURE ACT HAD NOT YET BEEN ENACTED,
(FN4) THE DECLARATORY JUDGMENT ACT WAS IN ITS INFANCY, (FN5) AND THE
SCOPE OF JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS UNDER THE EQUITY
POWER WAS UNCLEAR.  (FN6)  IT WAS THESE FACTORS THAT LED TO THE FORM
THE STATUTE ULTIMATELY TOOK.  THERE IS NO EVIDENCE AT ALL THAT MEMBERS
OF CONGRESS MEANT TO PRECLUDE TRADITIONAL AVENUES OF JUDICIAL RELIEF. 
INDEED, THROUGHOUT THE CONSIDERATION OF THE VARIOUS BILLS SUBMITTED TO
DEAL WITH THIS ISSUE, IT WAS RECOGNIZED THAT "THERE IS ALWAYS AN
APPROPRIATE REMEDY IN EQUITY IN CASES WHERE AN ADMINISTRATIVE OFFICER
HAS EXCEEDED HIS AUTHORITY AND THERE IS NO ADEQUATE REMEDY OF LAW,  ...
AND THAT PROTECTION IS GIVEN BY THE SO-CALLED DECLARATORY JUDGMENTS
ACT  ...  ."  H.R. REP. NO. 2755, 74TH CONG., 2D SESS., 8.  IT WAS
SPECIFICALLY BROUGHT TO THE ATTENTION OF CONGRESS THAT SUCH METHODS HAD
IN FACT BEEN USED IN THE FOOD AND DRUG AREA, (FN7) AND THE DEPARTMENT
OF JUSTICE, IN OPPOSING THE ENACTMENT OF THE SPECIAL-REVIEW PROCEDURES
OF SEC. 701, SUBMITTED A MEMORANDUM WHICH WAS READ ON THE FLOOR OF THE
HOUSE STATING:  "AS A MATTER OF FACT, THE ENTIRE SUBSECTION IS REALLY
UNNECESSARY, BECAUSE EVEN WITHOUT ANY EXPRESS PROVISION IN THE BILL FOR
COURT REVIEW, ANY CITIZEN AGGRIEVED BY ANY ORDER OF THE SECRETARY, WHO
CONTENDS THAT THE ORDER IS INVALID, MAY TEST THE LEGALITY OF THE ORDER
BY BRINGING AN INJUNCTION SUIT AGAINST THE SECRETARY, OR THE HEAD OF
THE BUREAU, UNDER THE GENERAL EQUITY POWERS OF THE COURT."  83 CONG.
REC. 7892 (1938). 

THE MAIN ISSUE IN CONTENTION WAS WHETHER THESE METHODS OF REVIEW WERE
SATISFACTORY.  COMPARE THE MAJORITY AND MINORITY REPORTS ON THE REVIEW
PROVISIONS, H.R. REP. NO. 2139, 75TH CONG., 3D SESS. (1938), BOTH OF
WHICH ACKNOWLEDGED THAT TRADITIONAL JUDICIAL REMEDIES WERE AVAILABLE,
BUT DISAGREED AS TO THE NEED FOR ADDITIONAL PROCEDURES.  THE PROVISIONS
NOW EMBODIED IN A MODIFIED FORM IN SEC. 701(F) WERE SUPPORTED BY THOSE
WHO FEARED THE LIFE-AND-DEATH POWER GIVEN BY THE ACT TO THE EXECUTIVE
OFFICIALS, A FEAR VOICED BY MANY MEMBERS OF CONGRESS.  THE SUPPORTERS
OF THE SPECIAL-REVIEW SECTION SOUGHT TO INCLUDE IT IN THE ACT PRIMARILY
AS A METHOD OF REVIEWING AGENCY FACTUAL DETERMINATIONS.  FOR EXAMPLE,
IT WAS ARGUED THAT THE LEVEL OF TOLERANCE FOR POISONOUS SPRAYS ON APPLE
CROPS, WHICH THE SECRETARY OF AGRICULTURE HAD RECENTLY SET, WAS A
FACTUAL MATTER, NOT REVIEWABLE IN EQUITY IN THE ABSENCE OF A SPECIAL
STATUTORY REVIEW PROCEDURE.  (FN8)  SOME CONGRESSMEN URGED THAT
CHALLENGE TO THIS TYPE OF DETERMINATION SHOULD BE IN THE FORM OF A DE
NOVO HEARING IN A DISTRICT COURT, BUT THE ACT AS IT WAS FINALLY PASSED
COMPROMISED THE MATTER BY ALLOWING AN APPEAL ON A RECORD WITH A
"SUBSTANTIAL EVIDENCE" TEST, AFFORDING A CONSIDERABLY MORE GENEROUS
JUDICIAL REVIEW THAN THE "ARBITRARY AND CAPRICIOUS" TEST AVAILABLE IN
THE TRADITIONAL INJUNCTIVE SUIT.  (FN9) 

A SECOND REASON FOR THE SPECIAL PROCEDURE WAS TO PROVIDE BROADER
VENUE TO LITIGANTS CHALLENGING SUCH TECHNICAL AGENCY DETERMINATIONS. 
AT THAT TIME, A SUIT AGAINST THE SECRETARY WAS PROPER ONLY IN THE
DISTRICT OF COLUMBIA, AN ADVANTAGE THAT THE GOVERNMENT SOUGHT TO
PRESERVE.  THE HOUSE BILL, HOWEVER, ORIGINALLY AUTHORIZED REVIEW IN ANY
DISTRICT COURT, BUT IN THE FACE OF A SENATE BILL ALLOWING REVIEW ONLY
IN THE DISTRICT OF COLUMBIA, THE CONFERENCE COMMITTEE REACHED THE
COMPROMISE PRESERVED IN THE PRESENT STATUTE AUTHORIZING REVIEW OF SUCH
AGENCY ACTIONS BY THE COURTS OF APPEALS.   (FN10) 

AGAINST THIS BACKGROUND WE THINK IT QUITE APPARENT THAT THE SPECIAL
REVIEW PROCEDURES PROVIDED IN SEC. 701(F), APPLYING TO REGULATIONS
EMBODYING TECHNICAL FACTUAL DETERMINATIONS, (FN11) WERE SIMPLY INTENDED
TO ASSURE ADEQUATE JUDICIAL REVIEW OF SUCH AGENCY DECISIONS, AND THAT
THEIR ENACTMENT DOES NOT MANIFEST A CONGRESSIONAL PURPOSE TO ELIMINATE
JUDICIAL REVIEW OF OTHER KINDS OF AGENCY ACTION. 

THIS CONCLUSION IS STRONGLY BUTTRESSED BY THE FACT THAT THE ACT
ITSELF, IN SEC. 701(F)(6), STATES, "THE REMEDIES PROVIDED FOR IN THIS
SUBSECTION SHALL BE IN ADDITION TO AND NOT IN SUBSTITUTION FOR ANY
OTHER REMEDIES PROVIDED BY LAW."  THIS SAVING CLAUSE WAS PASSED OVER BY
THE COURT OF APPEALS WITHOUT DISCUSSION.  IN OUR VIEW, HOWEVER, IT
BEARS HEAVILY ON THE ISSUE, FOR IF TAKEN AT FACE VALUE IT WOULD
FORECLOSE THE GOVERNMENT'S MAIN ARGUMENT IN THIS CASE.  THE GOVERNMENT
DEALS WITH THE CLAUSE BY ARGUING THAT IT SHOULD BE READ AS APPLYING
ONLY TO REVIEW OF REGULATIONS UNDER THE SECTIONS SPECIFICALLY
ENUMERATED IN SEC. 701(E).  THIS IS A CONCEIVABLE READING, BUT IT
REQUIRES A CONSIDERABLE STRAINING BOTH OF LANGUAGE AND OF COMMON
UNDERSTANDING.  THE SAVING CLAUSE ITSELF CONTAINS NO LIMITATIONS, AND
IT REQUIRES AN ARTIFICIAL STATUTORY CONSTRUCTION TO READ A GENERAL
GRANT OF A RIGHT TO JUDICIAL REVIEW BEGRUDGINGLY, SO AS TO CUT OUT
AGENCY ACTIONS THAT A LITERAL READING WOULD COVER. 

THERE IS NO SUPPORT IN THE LEGISLATIVE BACKGROUND FOR SUCH A READING
OF THE CLAUSE.  IT WAS INCLUDED IN THE HOUSE BILL, WHOSE REPORT STATES
THAT THE PROVISIONS "  ...  SAVED AS A METHOD TO REVIEW A REGULATION
PLACED IN EFFECT BY THE SECRETARY WHATEVER RIGHTS EXIST TO INITIATE A
HISTORICAL PROCEEDING IN EQUITY TO ENJOIN THE ENFORCEMENT OF THE
REGULATION, AND WHATEVER RIGHTS EXIST TO INITIATE A DECLARATORY
JUDGMENT PROCEEDING."  H.R. REP. NO. 2139, 75TH CONG., 3D SESS., 11. 
THE SENATE CONFEREES ACCEPTED THE PROVISION.  (FN12)  THE GOVERNMENT
ARGUES THAT THE CLAUSE IS INCLUDED AS A PART OF SEC. 701(F), AND
THEREFORE SHOULD BE READ TO APPLY ONLY TO THOSE SECTIONS TO WHICH THE
SEC. 701(F) SPECIAL-REVIEW PROCEDURE APPLIES.  BUT IT IS DIFFICULT TO
THINK OF A MORE APPROPRIATE PLACE TO PUT A GENERAL SAVING CLAUSE THAN
WHERE CONGRESS PLACED IT - AT THE CONCLUSION OF THE SECTION SETTING OUT
A SPECIAL PROCEDURE FOR USE IN CERTAIN SPECIFIED INSTANCES. 
FURTHERMORE, THE GOVERNMENT'S READING WOULD RESULT IN AN ANOMALY.  THE
SECS. 701(E)-(F) PROCEDURE WAS INCLUDED IN THE ACT IN ORDER TO DEAL
WITH THE PROBLEM OF TECHNICAL DETERMINATIONS FOR WHICH THE NORMAL
EQUITY POWER WAS DEEMED INSUFFICIENT.  SEE, SUPRA, PP. 142-144.  THERE
WOULD SEEM LITTLE REASON FOR CONGRESS TO HAVE ENACTED SEC. 701(F), AND
AT THE SAME TIME TO HAVE INCLUDED A CLAUSE AIMED ONLY AT PRESERVING FOR
SUCH DETERMINATIONS THE OTHER TYPES OF REVIEW WHOSE SUPPOSED INADEQUACY
WAS THE VERY REASON FOR THE SPECIAL-REVIEW PROVISIONS. 

UNDER THE GOVERNMENT'S VIEW, INDEED, IT IS DIFFFICULT TO ASCERTAIN
WHEN THE SAVING CLAUSE WOULD EVEN COME INTO PLAY:  WHEN THE SPECIAL
PROVISIONS APPLY, PRESUMABLY THEY MUST BE USED AND A COURT WOULD NOT
GRANT INJUNCTIVE OR DECLARATORY JUDGMENT RELIEF UNLESS THE APPROPRIATE
ADMINISTRATIVE PROCEDURE IS EXHAUSTED.  (FN13)  WHEN THE SPECIAL
PROCEDURE DOES NOT APPLY, THE GOVERNMENT DEEMS THE SAVING CLAUSE
LIKEWISE INAPPLICABLE.  THE GOVERNMENT, TO BE SURE, DOES PRESENT A
RATHER FAR-FETCHED EXAMPLE OF WHAT IT CONSIDERS A POSSIBLE APPLICATION
OF THE RELIEF SAVED BY SEC. 701(F)(6), BUT MERELY TO STATE IT REVEALS
THE WEAKNESS OF THE GOVERNMENT'S POSITION.  (FN14)  WE PREFER TO TAKE
THE SAVING CLAUSE AT ITS FACE VALUE, AND TO READ IT IN HARMONY WITH THE
POLICY FAVORING JUDICIAL REVIEW EXPRESSED IN THE ADMINISTRATIVE
PROCEDURE ACT AND THIS COURT'S DECISIONS. 

THE ONLY OTHER ARGUMENT OF THE GOVERNMENT REQUIRING ATTENTION ON THE
PRECLUSIVE EFFECT OF THE STATUTE IS THAT EWING V. MYTINGER &
CASSELBERRY, INC., 339 U.S. 594, COUNSELS A RESTRICTIVE VIEW OF
JUDICIAL REVIEW IN THE FOOD AND DRUG AREA.  IN THAT CASE THE FOOD AND
DRUG ADMINISTRATOR FOUND THAT THERE WAS PROBABLE CAUSE THAT A DRUG WAS
"ADULTERATED" BECAUSE IT WAS MISBRANDED IN SUCH A WAY AS TO BE
"FRAUDULENT" OR "MISLEADING TO THE INJURY OR DAMAGE OF THE PURCHASER OR
CONSUMER."  SEC. 304(A), 21 U.S.C. SEC. 334(A).  MULTIPLE SEIZURES WERE
ORDERED THROUGH LIBEL ACTIONS.  THE MANUFACTURER OF THE DRUG BROUGHT AN
ACTION TO CHALLENGE DIRECTLY THE ADMINISTRATOR'S FINDING OF PROBABLE
CAUSE.  THIS COURT HELD THAT THE OWNER COULD RAISE HIS CONSTITUTIONAL,
STATUTORY, AND FACTUAL CLAIMS IN THE LIBEL ACTIONS THEMSELVES, AND THAT
THE MERE FINDING OF PROBABLE CAUSE BY THE ADMINISTRATOR COULD NOT BE
CHALLENGED IN A SEPARATE ACTION.  THAT DECISION WAS QUITE CLEARLY
CORRECT, BUT NOTHING IN ITS REASONING OR HOLDING HAS ANY BEARING ON
THIS DECLARATORY JUDGMENT ACTION CHALLENGING A PROMULGATED REGULATION. 

THE COURT IN EWING FIRST NOTED THAT THE "ADMINISTRATIVE FINDING OF
PROBABLE CAUSE REQUIRED BY SEC. 304(A) IS MERELY THE STATUTORY
PREREQUISITE TO THE BRINGING OF THE LAWSUIT," AT WHICH THE ISSUES ARE
AIRED.  339 U.S., AT 598.  SUCH A SITUATION BEARS NO ANALOGY TO THE
PROMULGATION, AFTER FORMAL PROCEDURES, OF A RULE THAT MUST BE FOLLOWED
BY AN ENTIRE INDUSTRY.  TO EQUATE A FINDING OF PROBABLE CAUSE FOR
PROCEEDING AGAINST A PARTICULAR DRUG MANUFACTURER WITH THE PROMULGATION
OF A SELF-OPERATIVE INDUSTRY-WIDE REGULATION, SUCH AS WE HAVE HERE,
WOULD IMMUNIZE NEARLY ALL AGENCY RULEMAKING ACTIVITIES FROM THE
COVERAGE OF THE ADMINISTRATIVE PROCEDURE ACT. 

SECOND, THE DETERMINATION OF PROBABLE CAUSE IN EWING HAS "NO EFFECT
IN AND OF ITSELF," 339 U.S., AT 598; ONLY SOME ACTION CONSEQUENT UPON
SUCH A FINDING COULD GIVE IT LEGAL LIFE.  AS THE COURT THERE NOTED,
LIKE A DETERMINATION BY A GRAND JURY THAT THERE IS PROBABLE CAUSE TO
PROCEED AGAINST AN ACCUSED, IT IS A FINDING WHICH ONLY HAS VITALITY
ONCE A PROCEEDING IS COMMENCED, AT WHICH TIME APPROPRIATE CHALLENGES
CAN BE MADE.  THE COURT ALSO NOTED THAT THE UNIQUE TYPE OF RELIEF
SOUGHT BY THE DRUG MANUFACTURER WAS INCONSISTENT WITH THE POLICY OF THE
ACT FAVORING SPEEDY ACTION AGAINST GOODS IN CIRCULATION THAT ARE
BELIEVED ON PROBABLE CAUSE TO BE ADULTERATED.  ALSO, SUCH RELIEF WAS
NOT SPECIFICALLY GRANTED BY THE ACT, WHICH DID PROVIDE ANOTHER TYPE OF
RELIEF IN THE FORM OF A CONSOLIDATION OF MULTIPLE LIBEL ACTIONS IN A
CONVENIENT VENUE.  339 U.S., AT 602. 

THE DRUG MANUFACTURER IN EWING WAS QUITE OBVIOUSLY SEEKING AN UNHEARD
OF FORM OF RELIEF WHICH, IF ALLOWED, WOULD HAVE PERMITTED INTERFERENCE
IN THE EARLY STAGES OF AN ADMINISTRATIVE DETERMINATION AS TO SPECIFIC
FACTS, AND WOULD HAVE PREVENTED THE REGULAR OPERATION OF THE SEIZURE
PROCEDURES ESTABLISHED BY THE ACT.  THAT THE COURT REFUSED TO PERMIT
SUCH AN ACTION IS HARDLY AUTHORITY FOR CUTTING OFF THE WELL-ESTABLISHED
JURISDICTION OF THE FEDERAL COURTS TO HEAR, IN APPROPRIATE CASES, SUITS
UNDER THE DECLARATORY JUDGMENT ACT AND THE ADMINISTRATIVE PROCEDURE ACT
CHALLENGING FINAL AGENCY ACTION OF THE KIND PRESENT HERE. 

WE CONCLUDE THAT NOTHING IN THE FOOD, DRUG, AND COSMETIC ACT ITSELF
PRECLUDES THIS ACTION. 

  II. 

A FURTHER INQUIRY MUST, HOWEVER, BE MADE.  THE INJUNCTIVE AND
DECLARATORY JUDGMENT REMEDIES ARE DISCRETIONARY, AND COURTS
TRADITIONALLY HAVE BEEN RELUCTANT TO APPLY THEM TO ADMINISTRATIVE
DETERMINATIONS UNLESS THESE ARISE IN THE CONTEXT OF A CONTROVERSY
"RIPE" FOR JUDICIAL RESOLUTION.  WITHOUT UNDERTAKING TO SURVEY THE
INTRICACIES OF THE RIPENESS DOCTRINE (FN15) IT IS FAIR TO SAY THAT ITS
BASIC RATIONALE IS TO PREVENT THE COURTS, THROUGH AVOIDANCE OF
PREMATURE ADJUDICATION, FROM ENTANGLING THEMSELVES IN ABSTRACT
DISAGREEMENTS OVER ADMINISTRATIVE POLICIES, AND ALSO TO PROTECT THE
AGENCIES FROM JUDICIAL INTERFERENCE UNTIL AN ADMINISTRATIVE DECISION
HAS BEEN FORMALIZED AND ITS EFFECTS FELT IN A CONCRETE WAY BY THE
CHALLENGING PARTIES.  THE PROBLEM IS BEST SEEN IN A TWOFOLD ASPECT,
REQUIRING US TO EVALUATE BOTH THE FITNESS OF THE ISSUES FOR JUDICIAL
DECISION AND THE HARDSHIP TO THE PARTIES OF WITHHOLDING COURT
CONSIDERATION. 

AS TO THE FORMER FACTOR, WE BELIEVE THE ISSUES PRESENTED ARE
APPROPRIATE FOR JUDICIAL RESOLUTION AT THIS TIME.  FIRST, ALL PARTIES
AGREE THAT THE ISSUE TENDERED IS A PURELY LEGAL ONE:  WHETHER THE
STATUTE WAS PROPERLY CONSTRUED BY THE COMMISSIONER TO REQUIRE THE
ESTABLISHED NAME OF THE DRUG TO BE USED EVERY TIME THE PROPRIETARY NAME
IS EMPLOYED.  (FN16)  BOTH SIDES MOVED FOR SUMMARY JUDGMENT IN THE
DISTRICT COURT, AND NO CLAIM IS MADE HERE THAT FURTHER ADMINISTRATIVE
PROCEEDINGS ARE CONTEMPLATED.  IT IS SUGGESTED THAT THE JUSTIFICATION
FOR THIS RULE MIGHT VARY WITH DIFFERENT CIRCUMSTANCES, AND THAT THE
EXPERTISE OF THE COMMISSIONER IS RELEVANT TO PASSING UPON THE VALIDITY
OF THE REGULATION.  THIS OF COURSE IS TRUE, BUT THE SUGGESTION
OVERLOOKS THE FACT THAT BOTH SIDES HAVE APPROACHED THIS CASE AS ONE
PURELY OF CONGRESSIONAL INTENT, AND THAT THE GOVERNMENT MADE NO EFFORT
TO JUSTIFY THE REGULATION IN FACTUAL TERMS. 

SECOND, THE REGULATIONS IN ISSUE WE FIND TO BE "FINAL AGENCY ACTION"
WITHIN THE MEANING OF SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT, 5
U.S.C. SEC. 704, AS CONSTRUED IN JUDICIAL DECISIONS.  AN "AGENCY
ACTION" INCLUDES ANY "RULE," DEFINED BY THE ACT AS "AN AGENCY STATEMENT
OF GENERAL OR PARTICULAR APPLICABILITY AND FUTURE EFFECT DESIGNED TO
IMPLEMENT, INTERPRET, OR PRESCRIBE LAW OR POLICY," SECS. 2(C), 2(G), 5
U.S.C. SECS. 551(4), 551(13).  THE CASES DEALING WITH JUDICIAL REVIEW
OF ADMINISTRATIVE ACTIONS HAVE INTERPRETED THE "FINALITY" ELEMENT IN A
PRAGMATIC WAY.  THUS IN COLUMBIA BROADCASTING SYSTEM V. UNITED STATES,
316 U.S. 407, A SUIT UNDER THE URGENT DEFICIENCIES ACT, 38 STAT. 219,
THIS COURT HELD REVIEWABLE A REGULATION OF THE FEDERAL COMMUNICATIONS
COMMISSION SETTING FORTH CERTAIN PROSCRIBED CONTRACTUAL ARRANGEMENTS
BETWEEN CHAIN BROADCASTERS AND LOCAL STATIONS.  THE FCC DID NOT HAVE
DIRECT AUTHORITY TO REGULATE THESE CONTRACTS, AND ITS RULE ASSERTED
ONLY THAT IT WOULD NOT LICENSE STATIONS WHICH MAINTAINED SUCH CONTRACTS
WITH THE NETWORKS.  ALTHOUGH NO LICENSE HAD IN FACT BEEN DENIED OR
REVOKED, AND THE FCC REGULATION COULD PROPERLY BE CHARACTERIZED AS A
STATEMENT ONLY OF ITS INTENTIONS, THE COURT HELD THAT "SUCH REGULATIONS
HAVE THE FORCE OF LAW BEFORE THEIR SANCTIONS ARE INVOKED AS WELL AS
AFTER.  WHEN, AS HERE, THEY ARE PROMULGATED BY ORDER OF THE COMMISSION
AND THE EXPECTED CONFORMITY TO THEM CAUSES INJURY COGNIZABLE BY A COURT
OF EQUITY, THEY ARE APPROPRIATELY THE SUBJECT OF ATTACK  ...  ."  316
U.S., AT 418-419. 

TWO MORE RECENT CASES HAVE TAKEN A SIMILARLY FLEXIBLE VIEW OF
FINALITY.  IN FROZEN FOOD EXPRESS V. UNITED STATES, 351 U.S. 40, AT
ISSUE WAS AN INTERSTATE COMMERCE COMMISSION ORDER SPECIFYING
COMMODITIES THAT WERE DEEMED TO FALL WITHIN THE STATUTORY CLASS OF
"AGRICULTURAL COMMODITIES."  VEHICLES CARRYING SUCH COMMODITIES WERE
EXEMPT FROM ICC SUPERVISION.  AN ACTION WAS BROUGHT BY A CARRIER THAT
CLAIMED TO BE TRANSPORTING EXEMPT COMMODITIES, BUT WHICH THE ICC ORDER
HAD NOT INCLUDED IN ITS TERMS.  ALTHOUGH THE DISSENTING OPINION NOTED
THAT THIS ICC ORDER HAD NO AUTHORITY EXCEPT TO GIVE NOTICE OF HOW THE
COMMISSION INTERPRETED THE ACT AND WOULD HAVE EFFECT ONLY IF AND WHEN A
PARTICULAR ACTION WAS BROUGHT AGAINST A PARTICULAR CARRIER, AND ARGUED
THAT "JUDICIAL INTERVENTION SHOULD BE WITHHELD UNTIL ADMINISTRATIVE
ACTION HAS REACHED ITS COMPLETE DEVELOPMENT," 351 U.S., AT 45, THE
COURT HELD THE ORDER REVIEWABLE. 

AGAIN, IN UNITED STATES V. STORER BROADCASTING CO., 351 U.S. 192, THE
COURT HELD TO BE A FINAL AGENCY ACTION WITHIN THE MEANING OF THE
ADMINISTRATIVE PROCEDURE ACT AN FCC REGULATION ANNOUNCING A COMMISSION
POLICY THAT IT WOULD NOT ISSUE A TELEVISION LICENSE TO AN APPLICANT
ALREADY OWNING FIVE SUCH LICENSES, EVEN THOUGH NO SPECIFIC APPLICATION
WAS BEFORE THE COMMISSION.  THE COURT STATED: "THE PROCESS OF
RULEMAKING WAS COMPLETE.  IT WAS A FINAL AGENCY ACTION  ...  BY WHICH
STORER CLAIMED TO BE "AGGRIEVED.'"  351 U.S., AT 198. 

WE FIND DECISION IN THE PRESENT CASE FOLLOWING A FORTIORI FROM THESE
PRECEDENTS.  THE REGULATION CHALLENGED HERE, PROMULGATED IN A FORMAL
MANNER AFTER ANNOUNCEMENT IN THE FEDERAL REGISTER AND CONSIDERATION OF
COMMENTS BY INTERESTED PARTIES  (FN17)  IS QUITE CLEARLY DEFINITIVE. 
THERE IS NO HINT THAT THIS REGULATION IS INFORMAL, SEE HELCO PRODUCTS
CO. V. MCNUTT, 78 U.S. APP.  D.C. 71, 137 F.2D 681, OR ONLY THE RULING
OF A SUBORDINATE OFFICIAL, SEE SWIFT & CO. V. WICKHAM, 230 F. SUPP.
398, 409, AFF'D, 364 F.2D 241, OR TENTATIVE.  IT WAS MADE EFFECTIVE
UPON PUBLICATION, AND THE ASSISTANT GENERAL COUNSEL FOR FOOD AND DRUGS
STATED IN THE DISTRICT COURT THAT COMPLIANCE WAS EXPECTED. 

THE GOVERNMENT ARGUES, HOWEVER, THAT THE PRESENT CASE CAN BE
DISTINGUISHED FROM CASES LIKE FROZEN FOOD EXPRESS ON THE GROUND THAT IN
THOSE INSTANCES THE AGENCY INVOLVED COULD IMPLEMENT ITS POLICY
DIRECTLY, WHILE HERE THE ATTORNEY GENERAL MUST AUTHORIZE CRIMINAL AND
SEIZURE ACTIONS FOR VIOLATIONS OF THE STATUTE.  IN THE CONTEXT OF THIS
CASE, WE DO NOT FIND THIS ARGUMENT PERSUASIVE.  THESE REGULATIONS ARE
NOT MEANT TO ADVISE THE ATTORNEY GENERAL, BUT PURPORT TO BE DIRECTLY
AUTHORIZED BY THE STATUTE.  THUS, IF WITHIN THE COMMISSIONER'S
AUTHORITY, THEY HAVE THE STATUS OF LAW AND VIOLATIONS OF THEM CARRY
HEAVY CRIMINAL AND CIVIL SANCTIONS.  ALSO, THERE IS NO REPRESENTATION
THAT THE ATTORNEY GENERAL AND THE COMMISSIONER DISAGREE IN THIS AREA;
THE JUSTICE DEPARTMENT IS DEFENDING THIS VERY SUIT.  IT WOULD BE
ADHERENCE TO A MERE TECHNICALITY TO GIVE ANY CREDENCE TO THIS
CONTENTION.  MOREOVER, THE AGENCY DOES HAVE DIRECT AUTHORITY TO ENFORCE
THIS REGULATION IN THE CONTEXT OF PASSING UPON APPLICATIONS FOR
CLEARANCE OF NEW DRUGS, SEC 505, 21 U.S.C. SEC 355, OR CERTIFICATION OF
CERTAIN ANTIBIOTICS, SEC 507, 21 U.S.C. SEC 357. 

THIS IS ALSO A CASE IN WHICH THE IMPACT OF THE REGULATIONS UPON THE
PETITIONERS IS SUFFICIENTLY DIRECT AND IMMEDIATE AS TO RENDER THE ISSUE
APPROPRIATE FOR JUDICIAL REVIEW AT THIS STAGE.  THESE REGULATIONS
PURPORT TO GIVE AN AUTHORITATIVE INTERPRETATION OF A STATUTORY
PROVISION THAT HAS A DIRECT EFFECT ON THE DAY-TO-DAY BUSINESS OF ALL
PRESCRIPTION DRUG COMPANIES; ITS PROMULGATION PUTS PETITIONERS IN A
DILEMMA THAT IT WAS THE VERY PURPOSE OF THE DECLARATORY JUDGMENT ACT TO
AMELIORATE.   (FN18)  AS THE DISTRICT COURT FOUND ON THE BASIS OF
UNCONTESTED ALLEGATIONS, "EITHER THEY MUST COMPLY WITH THE EVERY TIME
REQUIREMENT AND INCUR THE COSTS OF CHANGING OVER THEIR PROMOTIONAL
MATERIAL AND LABELING OR THEY MUST FOLLOW THEIR PRESENT COURSE AND RISK
PROSECUTION."  228 F. SUPP. 855, 861.  THE REGULATIONS ARE CLEAR-CUT,
AND WERE MADE EFFECTIVE IMMEDIATELY UPON PUBLICATION; AS NOTED EARLIER
THE AGENCY'S COUNSEL REPRESENTED TO THE DISTRICT COURT THAT IMMEDIATE
COMPLIANCE WITH THEIR TERMS WAS EXPECTED.  IF PETITIONERS WISH TO
COMPLY THEY MUST CHANGE ALL THEIR LABELS, ADVERTISEMENTS, AND
PROMOTIONAL MATERIALS; THEY MUST DESTROY STOCKS OF PRINTED MATTER; AND
THEY MUST INVEST HEAVILY IN NEW PRINTING TYPE AND NEW SUPPLIES. 

THE ALTERNATIVE TO COMPLIANCE - CONTINUED USE OF MATERIAL WHICH THEY
BELIEVE IN GOOD FAITH MEETS THE STATUTORY REQUIREMENTS, BUT WHICH
CLEARLY DOES NOT MEET THE REGULATION OF THE COMMISSIONER - MAY BE EVEN
MORE COSTLY.  THAT COURSE WOULD RISK SERIOUS CRIMINAL AND CIVIL
PENALTIES FOR THE UNLAWFUL DISTRIBUTION OF "MISBRANDED" DRUGS.  (FN19) 

IT IS RELEVANT AT THIS JUNCTURE TO RECOGNIZE THAT PETITIONERS DEAL IN
A SENSITIVE INDUSTRY, IN WHICH PUBLIC CONFIDENCE IN THEIR DRUG PRODUCTS
IS ESPECIALLY IMPORTANT.  TO REQUIRE THEM TO CHALLENGE THESE
REGULATIONS ONLY AS A DEFENSE TO AN ACTION BROUGHT BY THE GOVERNMENT
MIGHT HARM THEM SEVERELY AND UNNECESSARILY.  WHERE THE LEGAL ISSUE
PRESENTED IS FIT FOR JUDICIAL RESOLUTION, AND WHERE A REGULATION
REQUIRES AN IMMEDIATE AND SIGNIFICANT CHANGE IN THE PLAINTIFFS' CONDUCT
OF THEIR AFFAIRS WITH SERIOUS PENALTIES ATTACHED TO NONCOMPLIANCE,
ACCESS TO THE COURTS UNDER THE ADMINISTRATIVE PROCEDURE ACT AND THE
DECLARATORY JUDGMENT ACT MUST BE PERMITTED, ABSENT A STATUTORY BAR OR
SOME OTHER UNUSUAL CIRCUMSTANCE, NEITHER OF WHICH APPEARS HERE.    THE
GOVERNMENT DOES NOT DISPUTE THE VERY REAL DILEMMA IN WHICH PETITIONERS
ARE PLACED BY THE REGULATION, BUT CONTENDS THAT "MERE FINANCIAL
EXPENSE" IS NOT A JUSTIFICATION FOR PRE-ENFORCEMENT JUDICIAL REVIEW. 
IT IS OF COURSE TRUE THAT CASES IN THIS COURT DEALING WITH THE STANDING
OF PARTICULAR PARTIES TO BRING AN ACTION HAVE HELD THAT A POSSIBLE
FINANCIAL LOSS IS NOT BY ITSELF A SUFFICIENT INTEREST TO SUSTAIN A
JUDICIAL CHALLENGE TO GOVERNMENTAL ACTION.  FROTHINGHAM V. MELLON, 262
U.S. 447; PERKINS V. LUKENS STEEL CO., 310 U.S. 113.  BUT THERE IS NO
QUESTION IN THE PRESENT CASE THAT PETITIONERS HAVE SUFFICIENT STANDING
AS PLAINTIFFS: THE REGULATION IS DIRECTED AT THEM IN PARTICULAR; IT
REQUIRES THEM TO MAKE SIGNIFICANT CHANGES IN THEIR EVERYDAY BUSINESS
PRACTICES; IF THEY FAIL TO OBSERVE THE COMMISSIONER'S RULE THEY ARE
QUITE CLEARLY EXPOSED TO THE IMPOSITION OF STRONG SANCTIONS.  COMPARE
COLUMBIA BROADCASTING SYSTEM V. UNITED STATES, 316 U.S. 407; 3 DAVIS,
ADMINISTRATIVE LAW TREATISE, C. 21 (1958).  THIS CASE IS, THEREFORE,
REMOTE FROM THE MELLON AND PERKINS CASES. 

THE GOVERNMENT FURTHER CONTENDS THAT THE THREAT OF CRIMINAL SANCTIONS
FOR NONCOMPLIANCE WITH A JUDICIALLY UNTESTED REGULATION IS UNREALISTIC;
THE SOLICITOR GENERAL HAS REPRESENTED THAT IF COURT ENFORCEMENT BECOMES
NECESSARY, "THE DEPARTMENT OF JUSTICE WILL PROCEED ONLY CIVILLY FOR AN
INJUNCTION ...  OR BY CONDEMNATION."  WE CANNOT ACCEPT THIS ARGUMENT AS
A SUFFICIENT ANSWER TO PETITIONERS' PETITION.  THIS ACTION AT ITS
INCEPTION WAS PROPERLY BROUGHT AND THIS SUBSEQUENT REPRESENTATION OF
THE DEPARTMENT OF JUSTICE SHOULD NOT SUFFICE TO DEFEAT IT. 

FINALLY, THE GOVERNMENT URGES THAT TO PERMIT RESORT TO THE COURTS IN
THIS TYPE OF CASE MAY DELAY OR IMPEDE EFFECTIVE ENFORCEMENT OF THE
ACT.  WE FULLY RECOGNIZE THE IMPORTANT PUBLIC INTEREST SERVED BY
ASSURING PROMPT AND UNIMPEDED ADMINISTRATION OF THE PURE FOOD, DRUG,
AND COSMETIC ACT, BUT WE DO NOT FIND THE GOVERNMENT'S ARGUMENT
CONVINCING.  FIRST, IN THIS PARTICULAR CASE, A PRE-ENFORCEMENT
CHALLENGE BY NEARLY ALL PRESCRIPTION DRUG MANUFACTURERS IS CALCULATED
TO SPEED ENFORCEMENT.  IF THE GOVERNMENT PREVAILS, A LARGE PART OF THE
INDUSTRY IS BOUND BY THE DECREE; IF THE GOVERNMENT LOSES, IT CAN MORE
QUICKLY REVISE ITS REGULATION. 

THE GOVERNMENT CONTENDS, HOWEVER, THAT IF THE COURT ALLOWS THIS
CONSOLIDATED SUIT, THEN NOTHING WILL PREVENT A MULTIPLICITY OF SUITS IN
VARIOUS JURISDICTIONS CHALLENGING OTHER REGULATIONS.  THE SHORT ANSWER
TO THIS CONTENTION IS THAT THE COURTS ARE WELL EQUIPPED TO DEAL WITH
SUCH EVENTUALITIES.  THE VENUE TRANSFER PROVISION, 28 U.S.C. SEC
1404(A), MAY BE INVOKED BY THE GOVERNMENT TO CONSOLIDATE SEPARATE
ACTIONS.  OR, ACTIONS IN ALL BUT ONE JURISDICTION MIGHT BE STAYED
PENDING THE CONCLUSION OF ONE PROCEEDING.  SEE AMERICAN LIFE INS.  CO.
V. STEWART, 300 U.S. 203, 215-216.  A COURT MAY EVEN IN ITS DESCRETION
DISMISS A DECLARATORY JUDGMENT OR INJUNCTIVE SUIT IF THE SAME ISSUE IS
PENDING IN LITIGATION ELSEWHERE.  MARYLAND CAS. CO. V. CONSUMERS
FINANCE SERVICE, 101 F.2D 514; CARBIDE & CARBON C. CORP. V. UNITED
STATES I. CHEMICALS, 140 F.2D 47; NOTE, AVAILABILITY OF A DECLARATORY
JUDGMENT WHEN ANOTHER SUIT IS PENDING, 51 YALE L.J. 511 (1942).  IN AT
LEAST ONE SUIT FOR A DECLARATORY JUDGMENT, RELIEF WAS DENIED WITH THE
SUGGESTION THAT THE PLAINTIFF INTERVENE IN A PENDING ACTION ELSEWHERE. 
AUTOMOTIVE EQUIP., INC. V. TRICO PRODS.  CORP., 11 F. SUPP. 292; SEE
ALLSTATE INS.  CO. V. THOMPSON, 121 F. SUPP. 696. 

FURTHER, THE DECLARATORY JUDGMENT AND INJUNCTIVE REMEDIES ARE
EQUITABLE IN NATURE, AND OTHER EQUITABLE DEFENSES MAY BE INTERPOSED. 
IF A MULTIPLICITY OF SUITS ARE UNDERTAKEN IN ORDER TO HARASS THE
GOVERNMENT OR TO DELAY ENFORCEMENT, RELIEF CAN BE DENIED ON THIS GROUND
ALONE.  TRULY V. WANZER, 5 HOW.  141, 142; CF. BRILLHART V. EXCESS INS.
CO., 316 U.S. 491, 495.  THE DEFENSE OF LACHES COULD BE ASSERTED IF THE
GOVERNMENT IS PREJUDICED BY A DELAY, SOUTHERN PAC. CO. V. BOGERT, 250
U.S. 483, 488-490; 2 POMEROY'S EQUITY JURISPRUDENCE SECS 419C-D (5TH
ED. SYMONS, 1941).  AND COURTS MAY EVEN REFUSE DECLARATORY RELIEF FOR
THE NONJOINDER OF INTERESTED PARTIES WHO ARE NOT, TECHNICALLY SPEAKING,
INDISPENSABLE.  CF. SAMUEL GOLDWYN, INC. V. UNITED ARTISTS CORP., 113
F.2D 703; 6A MOORE, FEDERAL PRACTICE PARA 57.25 (2D ED. 1966). 

IN ADDITION TO ALL THESE SAFEGUARDS AGAINST WHAT THE GOVERNMENT
FEARS, IT IS IMPORTANT TO NOTE THAT THE INSTITUTION OF THIS TYPE OF
ACTION DOES NOT BY ITSELF STAY THE EFFECTIVENESS OF THE CHALLENGED
REGULATION.  THERE IS NOTHING IN THE RECORD TO INDICATE THAT
PETITIONERS HAVE SOUGHT TO STAY ENFORCEMENT OF THE "EVERY TIME"
REGULATION PENDING JUDICIAL REVIEW.  SEE 5 U.S.C.  SEC 705.  IF THE
AGENCY BELIEVES THAT A SUIT OF THIS TYPE WILL SIGNIFICANTLY IMPEDE
ENFORCEMENT OR WILL HARM THE PUBLIC INTEREST, IT NEED NOT POSTPONE
ENFORCEMENT OF THE REGULATION AND MAY OPPOSE ANY MOTION FOR A JUDICIAL
STAY ON THE PART OF THOSE CHALLENGING THE REGULATION.  IBID.  IT IS
SCARCELY TO BE DOUBTED THAT A COURT WOULD REFUSE TO POSTPONE THE
EFFECTIVE DATE OF AN AGENCY ACTION IF THE GOVERNMENT COULD SHOW, AS IT
MADE NO EFFORT TO DO HERE, THAT DELAY WOULD BE DETRIMENTAL TO THE
PUBLIC HEALTH OR SAFETY.  SEE ASSOCIATED SECURITIES CORP. V. SEC, 283
F.2D 773, 775, WHERE A STAY WAS DENIED BECAUSE "THE PETITIONERS  ...
HAD NOT SUSTAINED THE BURDEN OF ESTABLISHING THAT THE REQUESTED STAYS
WILL NOT BE HARMFUL TO THE PUBLIC INTEREST  ...  "; SEE EASTERN AIR
LINES V. CAB, 261 F.2D 830; CF. SCRIPPS-HOWARD RADIO V. FCC, 316 U.S.
4, 10-11; 5 U.S.C. SEC 705. 

LASTLY, ALTHOUGH THE GOVERNMENT PRESSES US TO REACH THE MERITS OF THE
CHALLENGE TO THE REGULATION IN THE EVENT WE FIND THE DISTRICT COURT
PROPERLY ENTERTAINED THIS ACTION, WE BELIEVE THE BETTER PRACTICE IS TO
REMAND THE CASE TO THE COURT OF APPEALS FOR THE THIRD CIRCUIT TO REVIEW
THE DISTRICT COURT'S DECISION THAT THE REGULATION WAS BEYOND THE POWER
OF THE COMMISSIONER.  (FN20)  REVERSED AND REMANDED. 

FN1  THAT IS, A SUIT BROUGHT BY ONE BEFORE ANY ATTEMPTED ENFORCEMENT
OF THE STATUTE OR REGULATION AGAINST HIM. 

FN2  SEE H.R. REP. NO. 1980, 79TH CONG., 2D SESS., 41 (1946):  "TO
PRECLUDE JUDICIAL REVIEW UNDER THIS BILL A STATUTE, IF NOT SPECIFIC IN
WITHHOLDING SUCH REVIEW, MUST UPON ITS FACE GIVE CLEAR AND CONVINCING
EVIDENCE OF AN INTENT TO WITHHOLD IT.  THE MERE FAILURE TO PROVIDE
SPECIALLY BY STATUTE FOR JUDICIAL REVIEW IS CERTAINLY NO EVIDENCE OF
INTENT TO WITHHOLD REVIEW."  SEE ALSO S. REP. NO. 752, 79TH CONG., 1ST
SESS., 26 (1945). 

FN3  EMBODIED IN SECS 701(E), (F), 21 U.S.C. SECS 371(E), (F), AND
DISCUSSED HEREAFTER.  SECTION 701(E) PROVIDES A PROCEDURE FOR THE
ISSUANCE OF REGULATIONS UNDER CERTAIN SPECIFICALLY ENUMERATED STATUTORY
A COURT OF APPEALS OF A REGULATION PROMULGATED UNDER SEC 701(E). 

FN4  THE ADMINISTRATIVE PROCEDURE ACT WAS ENACTED IN 1946, 60 STAT.
237. 

FN5  THE DECLARATORY JUDGEMENT ACT WAS ENACTED IN 1934, 48 STAT.
955. 

FN6  SEE, E.G., THE DISCUSSION OF JUDICIAL REVIEW UNDER THE EQUITY
POWER IN THE HOUSE OF REPRESENTATIVES DURING THE DEBATE ON THESE
PROVISIONS.  83 CONG. REC. 7891-7896 (1938). 

FN7  SEE, E.G., 83 CONG. REC. 7783 (REMARKS OF REPRESENTATIVE
LEAVY)(1938); STATEMENT OF PROFESSOR DAVID F. CAVERS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON COMMERCE ON S. 1944, 73D CONG.,
2D SESS. (1933), REPRINTED IN DUNN, FEDERAL FOOD, DRUG, AND COSMETIC
ACT, A STATEMENT OF ITS LEGISLATIVE RECORD 1110 (1938). 

FN8  SEE, E.G., 83 CONG. REC. 7772-7773, 7781-7784, 7893-7899
(1938). 

FN9  SEE, E.G., THE DISCUSSION OF THE CONFERENCE REPORT, 83 CONG.
REC. 9096-9098 (1938). 

FN10  SEE, E.G., 83 CONG. REC. 7772, 7892, 9092-9093 (1938). 

FN11  SEE TOILET GOODS ASSN. V. GARDNER, 360 F.2D 677, 683, WHERE THE
COURT NOTED THAT "THE AGENCY DETERMINATIONS SPECIFICALLY REVIEWABLE
UNDER SEC 701(E) RELATE TO SUCH TECHNICAL SUBJECTS AS CHEMICAL
PROPERTIES OF PARTICULAR PRODUCTS AND THE FORMULATION AND APPLICATION
OF SAFETY STANDARDS FOR PROTECTING PUBLIC HEALTH; CONGRESS NATURALLY
DID NOT WISH COURTS TO CONSIDER SUCH MATTERS WITHOUT THE BENEFIT OF THE
AGENCY'S VIEWS AFTER AN EVIDENTIARY HEARING BEFORE IT." 

FN12  H.R. CONF. REP. NO. 2716, 75TH CONG., 3D SESS., 25 (1938); 83
CONG. REC. 8731-8738 (1938)(SENATE AGREEMENT TO THE CONFERENCE
REPORT). 

FN13  SEE NOTES OF THE ADVISORY COMMITTEE ON FEDERAL RULE OF CIVIL
PROCEDURE 57, REPRINTED IN 28 U.S.C. APP., AT 6136: "A DECLARATION MAY
NOT BE RENDERED IF A SPECIAL STATUTORY PROCEEDING HAS BEEN PROVIDED FOR
THE ADJUDICATION OF SOME SPECIAL TYPE OF CASE  ...  ."  SEE ALSO 6A
MOORE, FEDERAL PRACTICE SEC. 57.08(3)(2D ED. 1966). 

FN14  THE GOVERNMENT APPARENTLY VIEWS THE CLAUSE AS APPLYING ONLY
WHEN REGULATIONS FALLING WITHIN THE SPECIAL-REVIEW PROCEDURE ARE
PROMULGATED WITHOUT AFFORDING THE REQUIRED PUBLIC NOTICE AND
OPPORTUNITY TO FILE OBJECTIONS AND TO REQUEST A PUBLIC HEARING.  IN
SUCH A CASE ALONE, THE GOVERNMENT ASSERTS, "AN EQUITY PROCEEDING OR A
DECLARATORY JUDGMENT ACTION  ...  MIGHT BE ENTERTAINED ON THE GROUND
THAT THE STATUTORY PROCEDURES HAD NOT BEEN FOLLOWED."  BRIEF, P. 28. 

FN15  SEE 3 DAVIS, ADMINISTRATIVE LAW TREATISE, C. 21 (1958); JAFFE,
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION, C. 10 (1965). 

FN16  WHILE THE "EVERY TIME" ISSUE HAS BEEN FRAMED BY THE PARTIES IN
TERMS OF STATUTORY COMPULSION, WE THINK THAT ITS ESSENTIALLY LEGAL
CHARACTER WOULD NOT BE DIFFERENT HAD IT BEEN FRAMED IN TERMS OF
STATUTORY AUTHORIZATION FOR THE REQUIREMENT. 

FN17  COMPARE SIMILAR PROCEDURES FOLLOWED IN FROZEN FOOD EXPRESS,
SUPRA, AT 41-42, AND STORER, SUPRA, AT 193-194.  THE PROCEDURE
CONFORMED WITH THAT PRESCRIBED IN SEC 4 OF THE ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. SEC 1003. 

FN18  SEE S. REP. NO. 1005, 73D CONG., 2D SESS., 2-3 (1934);
BORCHARD, CHALLENGING "PENAL" STATUTES BY DECLARATORY ACTION, 52 YALE
L.J. 445, 454 (1943). 

FN19  SECTION 502(E)(1)(B) DECLARES A DRUG NOT COMPLYING WITH THIS
LABELING REQUIREMENT TO BE "MISBRANDED."  SECTION 301, 21 U.S.C. SEC
331, DESIGNATES AS "PROHIBITED ACTS" THE MISBRANDING OF DRUGS IN
INTERSTATE COMMERCE.  SUCH PROHIBITED ACTS ARE SUBJECT TO INJUNCTION,
SEC 302, 21 U.S.C. SEC 332, CRIMINAL PENALTIES, SEC 303, 21 U.S.C. SEC
333, AND SEIZURE, SEC 304(A), 21 U.S.C.  SEC 334(A). 

FN20  A TOTALLY SEPARATE ISSUE RAISED IN THE PETITION FOR CERTIORARI
AND ARGUED BY THE PARTIES IN THEIR BRIEFS CONCERNS THE DISMISSAL OF THE
COMPLAINT AS TO CERTAIN OF THE PLAINTIFFS ON THE GROUND THAT VENUE WAS
IMPROPER AS TO THEM.  ALL THE PETITIONERS ASSERTED THAT VENUE WAS
PROPER IN DELAWARE NOT ONLY BECAUSE SOME OF THEM ARE INCORPORATED THERE
BUT ALSO UNDER 28 U.S.C.  SEC 1391(E)(4), ALLOWING AN ACTION AGAINST A
GOVERNMENT OFFICIAL IN ANY JUDICIAL DISTRICT IN WHICH "THE PLAINTIFF
RESIDES  ...  ."  IT IS CONTENDED THAT SEC 1391(E)(4) MUST BE READ TO
INCORPORATE THE DEFINITION OF "RESIDENCE" SET OUT IN 28 U.S.C. SEC.
1391(C):  "A CORPORATION MAY BE SUED IN ANY JUDICIAL DISTRICT IN WHICH
IT IS INCORPORATED OR LICENSED TO DO BUSINESS OR IS DOING BUSINESS, AND
SUCH JUDICIAL DISTRICT SHALL BE REGARDED AS THE RESIDENCE OF SUCH
CORPORATION FOR VENUE PURPOSES."  THE ISSUE OF CONSTRUCTION IS WHETHER
SEC 1391(C) SHOULD BE READ AS DEFINING CORPORATE VENUE ONLY WHEN THE
CORPORATION IS A DEFENDANT, OR WHETHER IT SHOULD EITHER (1) BE ADOPTED
FOR CORPORATE RESIDENCE IN ALL CASES WHEN A CORPORATION IS A PLAINTIFF,
OR (2) AT LEAST AS THE DEFINITION OF "RESIDES" AS USED IN SEC
1391(E)(4). 

THIS QUESTION IS A DIFFICULT ONE, WITH FAR-REACHING EFFECTS, AND WE
THINK IT IS APPROPRIATE TO DISMISS OUR WRIT OF CERTIORARI AS TO THIS
QUESTION FOR THE FOLLOWING TWO REASONS.  FIRST, THE COURT OF APPEALS IN
AFFIRMING THE DISTRICT COURT ON THIS ISSUE DID NOT EXPLICITLY ENDORSE
THE LOWER COURT'S RULING BUT HELD ONLY:  "WE FIND NO PREJUDICIAL ERROR
IN THE DISMISSAL OF THE COMPLAINT AS TO THESE PLAINTIFFS  ...  ."  352
F.2D 524, 525.  REVIEW OF AN ISSUE OF THIS IMPORTANCE IS BEST LEFT TO A
CASE WHERE IT HAS BEEN FULLY DEALT WITH BY A COURT OF APPEALS.  SECOND,
ONE OF THE PLAINTIFFS WHOSE COMPLAINT WAS NOT DISMISSED IS THE
PHARMACEUTICAL MANUFACTURERS ASSOCIATION, OF WHICH ALL THE CORPORATE
PETITIONERS ARE MEMBERS, AND WE THINK IT SHOULD BE CONSIDERED THAT THEY
ARE ADEQUATELY PROTECTED IN THIS SUIT BY ITS PARTICIPATION, AS WELL AS
BY THE PARTICIPATION OF THE REMAINING DRUG COMPANIES WHOSE INTERESTS
ARE IDENTICAL TO THOSE OF THE PETITIONERS WHOSE COMPLAINTS WERE
DISMISSED.   CF. MISHKIN V. NEW YORK, 383 U.S. 502, 512-514.  MOREOVER,
IN THE FURTHER COURSE OF THIS LITIGATION IT WILL BE OPEN TO THE
DISMISSED PLAINTIFFS TO SEEK AMICUS CURIAE STATUS. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR DISSENTING OPINIONS OF MR. JUSTICE FORTAS AND MR. JUSTICE CLARK,
SEE POST, PP. 174 AND 201, RESPECTIVELY. 
..END :















TOILET GOODS ASSN. V. GARDNER 387 U.S. 158. 


NO. 336.  ARGUED JANUARY 16, 1967.  - DECIDED MAY 22, 1967.  - 360 F.2D
677, AFFIRMED. 


PURSUANT TO THE COLOR ADDITIVE AMENDMENTS OF 1960 TO THE FEDERAL FOOD,
DRUG, AND COSMETIC ACT, THE COMMISSIONER OF FOOD AND DRUGS, BY
DELEGATION FROM THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ISSUED
A REGULATION WHICH PROVIDED THAT WHERE A PERSON HAS REFUSED TO PERMIT
FOOD AND DRUG EMPLOYEES FREE ACCESS TO ALL MANUFACTURING FACILITIES AND
PROCESSES USED IN PREPARING COLOR ADDITIVES, THE COMMISSIONER "MAY
IMMEDIATELY SUSPEND CERTIFICATION SERVICE TO SUCH PERSON AND MAY
CONTINUE SUCH SUSPENSION UNTIL ADEQUATE CORRECTIVE ACTION HAS BEEN
TAKEN."  PETITIONERS, COSMETICS DISTRIBUTORS, MANUFACTURERS, AND AN
ASSOCIATION OF COSMETICS MANUFACTURERS, CHALLENGED THIS REGULATION AND
THREE OTHERS ON THE GROUND THAT THE COMMISSIONER EXCEEDED HIS AUTHORITY
UNDER THE ACT, AND MAINTAINED THAT THIS REGULATION IS IMPERMISSIBLE
SINCE THE FOOD AND DRUG ADMINISTRATION HAS LONG SOUGHT CONGRESSIONAL
AUTHORIZATION FOR FREE ACCESS TO FACILITIES, PROCESSES AND FORMULAE,
WHICH WAS DENIED EXCEPT FOR PRESCRIPTION DRUGS.  THE DISTRICT COURT
HELD THAT THE ACT DID NOT PROHIBIT THIS TYPE OF PRE-ENFORCEMENT ACTION,
THAT A CASE AND CONTROVERSY EXISTED, THAT THE ISSUES WERE JUSTICIABLE,
AND THAT THE GOVERNMENT PRESENTED NO REASONS TO WARRANT DECLINING
JURISDICTION ON DISCRETIONARY GROUNDS.   IN LIGHT OF A LATER
CONFLICTING DECISION BY THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN
ABBOTT LABORATORIES V. CELEBREZZE, 352 F.2D 286, THE DISTRICT COURT
REAFFIRMED ITS RULINGS BUT CERTIFIED THE QUESTION OF JURISDICTION TO
THE COURT OF APPEALS FOR THE SECOND CIRCUIT.  THE COURT OF APPEALS
SUSTAINED THE GOVERNMENT'S CONTENTION THAT JUDICIAL REVIEW WAS IMPROPER
AS TO THE REGULATION INVOLVED HERE, ALTHOUGH IT AFFIRMED THE DISTRICT
COURT'S JUDGMENT THAT IT HAD JURISDICTION AS TO THE OTHER CHALLENGED
REGULATIONS.  HELD:  PRE-ENFORCEMENT JUDICIAL REVIEW OF THE REGULATION
INVOLVED HERE IS NOT APPROPRIATE AS THE CONTROVERSY IS NOT RIPE FOR
ADJUDICATION UNDER THE STANDARDS SET FORTH IN ABBOTT LABORATORIES V.
GARDNER, ANTE, P. 136.  PP. 160-166. 

(A)  THE LEGAL ISSUE AS PRESENTLY FRAMED IS NOT APPROPRIATE FOR
JUDICIAL RESOLUTION, AS IT IS NOT KNOWN WHETHER OR WHEN THE
COMMISSIONER WILL ORDER AN INSPECTION, WHAT REASONS HE WILL GIVE TO
JUSTIFY HIS ORDER, AND WHETHER THE STATUTORY SCHEME AS A WHOLE,
NOTWITHSTANDING CONGRESS' REFUSAL TO INCLUDE A SPECIFIC STATUTORY
REGULATION.  PP. 162-164. 

(B)  THE REGULATION WILL NOT AFFECT THE PRIMARY CONDUCT OF
PETITIONERS' BUSINESS AND SINCE ONLY MINIMAL, IF ANY, ADVERSE
CONSEQUENCES WILL FACE PETITIONERS IF THEY CHALLENGE THE REGULATION
UPON ENFORCEMENT, THEY SHOULD EXHAUST THE ADMINISTRATIVE PROCESS BEFORE
OBTAINING JUDICIAL REVIEW.  PP. 164-166. 

TOILET GOODS ASSOCIATION, INC., ET AL. V. GARDNER, SECRETARY OF HEALTH,
EDUCATION, AND WELFARE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS IN THIS CASE ARE THE TOILET GOODS ASSOCIATION, AN
ORGANIZATION OF COSMETICS MANUFACTURERS ACCOUNTING FOR SOME 90% OF
ANNUAL AMERICAN SALES IN THIS FIELD, AND 39 INDIVIDUAL COSMETICS
MANUFACTURERS AND DISTRIBUTORS.  THEY BROUGHT THIS ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SEEKING
DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE SECRETARY OF HEALTH,
EDUCATION, AND WELFARE AND THE COMMISSIONER OF FOOD AND DRUGS, ON THE
GROUND THAT CERTAIN REGULATIONS PROMULGATED BY THE COMMISSIONER
EXCEEDED HIS STATUTORY AUTHORITY UNDER THE COLOR ADDITIVE AMENDMENTS TO
THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, 74 STAT. 397, 21 U.S.C. SECS
321-376.  THE DISTRICT COURT HELD THAT THE ACT DID NOT PROHIBIT THIS
TYPE OF PRE-ENFORCEMENT SUIT, THAT A CASE AND CONTROVERSY EXISTED, THAT
THE ISSUES PRESENTED WERE JUSTICIABLE, AND THAT NO REASONS HAD BEEN
PRESENTED BY THE GOVERNMENT TO WARRANT DECLINING JURISDICTION ON
DISCRETIONARY GROUNDS.  235 F. SUPP. 648.  RECOGNIZING THAT THE
SUBSEQUENT DECISION OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN
ABBOTT LABORATORIES V. CELEBREZZE, 352 F.2D 286, APPEARED TO CONFLICT
WITH ITS HOLDING, THE DISTRICT COURT REAFFIRMED ITS EARLIER RULINGS BUT
CERTIFIED THE QUESTION OF JURISDICTION TO THE COURT OF APPEALS FOR THE
SECOND CIRCUIT UNDER 28 U.S.C. SEC 1292(B).  THE COURT OF APPEALS
AFFIRMED THE JUDGMENT OF THE DISTRICT COURT THAT JURISDICTION TO HEAR
THE SUIT EXISTED AS TO THREE OF THE CHALLENGED REGULATIONS, BUT
SUSTAINED THE GOVERNMENT'S CONTENTION THAT JUDICIAL REVIEW WAS IMPROPER
AS TO A FOURTH.  360 F.2D 677. 

EACH SIDE BELOW SOUGHT REVIEW HERE FROM THE PORTIONS OF THE COURT OF
APPEALS' DECISION ADVERSE TO IT, THE GOVERNMENT AS PETITIONER IN
GARDNER V. TOILET GOODS ASSN., NO. 438, AND THE TOILET GOODS
ASSOCIATION AND OTHER PLAINTIFFS IN THE PRESENT CASE.  WE GRANTED
CERTIORARI IN BOTH INSTANCES, 385 U.S. 813, AS WE DID IN ABBOTT
LABORATORIES V. GARDNER, NO. 39, 383 U.S. 924, BECAUSE OF THE APPARENT
CONFLICT BETWEEN THE SECOND AND THIRD CIRCUITS.  THE TWO TOILET GOODS
CASES WERE SET AND ARGUED TOGETHER WITH ABBOTT LABORATORIES. 

IN OUR DECISIONS REVERSING THE JUDGMENT IN ABBOTT LABORATORIES, ANTE,
P. 136, AND AFFIRMING THE JUDGMENT IN GARDNER V. TOILET GOODS ASSN.,
POST, P. 167, BOTH DECIDED TODAY, WE HOLD THAT NOTHING IN THE FOOD,
DRUG, AND COSMETIC ACT, 52 STAT. 1040, AS AMENDED, BARS A PRE
ENFORCEMENT SUIT UNDER THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. SEC
701-704 (1964 ED., SUPP. II), AND THE DECLARATORY JUDGMENT ACT, 28
U.S.C. SEC 2201.  WE NEVERTHELESS AGREE WITH THE COURT OF APPEALS THAT
JUDICIAL REVIEW OF THIS PARTICULAR REGULATION IN THIS PARTICULAR
CONTEXT IS INAPPROPRIATE AT THIS STAGE BECAUSE, APPLYING THE STANDARDS
SET FORTH IN ABBOTT LABORATORIES V. GARDNER, THE CONTROVERSY IS NOT
PRESENTLY RIPE FOR ADJUDICATION. 

THE REGULATION IN ISSUE HERE WAS PROMULGATED UNDER THE COLOR ADDITIVE
AMENDMENTS OF 1960, 74 STAT. 397, 21 U.S.C. SECS 321-376, A STATUTE
THAT REVISED AND SOMEWHAT BROADENED THE AUTHORITY OF THE COMMISSIONER
TO CONTROL THE INGREDIENTS ADDED TO FOODS, DRUGS, AND COSMETICS THAT
IMPART COLOR TO THEM.  THE COMMISSIONER OF FOOD AND DRUGS, EXERCISING
POWER DELEGATED BY THE SECRETARY, 22 FED. REG. 1051, 25 FED. REG. 8625,
UNDER STATUTORY AUTHORITY "TO PROMULGATE REGULATIONS FOR THE EFFICIENT
ENFORCEMENT" OF THE ACT, SEC 701(A), 21 U.S.C. SEC 371(A), ISSUED THE
FOLLOWING REGULATION AFTER DUE PUBLIC NOTICE, 26 FED. REG. 679, AND
CONSIDERATION OF COMMENTS SUBMITTED BY INTERESTED PARTIES: 

"(A)  WHEN IT APPEARS TO THE COMMISSIONER THAT A PERSON HAS: 

     *         *         *         *         * 

"(4)  REFUSED TO PERMIT DULY AUTHORIZED EMPLOYEES OF THE FOOD AND DRUG
ADMINISTRATION FREE ACCESS TO ALL MANUFACTURING FACILITIES, PROCESSES,
AND FORMULAE INVOLVED IN THE MANUFACTURE OF COLOR ADDITIVES AND
INTERMEDIATES FROM WHICH SUCH COLOR ADDITIVES ARE DERIVED: 

"HE MAY IMMEDIATELY SUSPEND CERTIFICATION SERVICE TO SUCH PERSON AND
MAY CONTINUE SUCH SUSPENSION UNTIL ADEQUATE CORRECTIVE ACTION HAS BEEN
TAKEN."  28 FED. REG. 6445-6446; 21 CFR SEC 8.28.  (FN1) 

THE PETITIONERS MAINTAIN THAT THIS REGULATION IS AN IMPERMISSIBLE
EXERCISE OF AUTHORITY, THAT THE FDA HAS LONG SOUGHT CONGRESSIONAL
AUTHORIZATION FOR FREE ACCESS TO FACILITIES, PROCESSES, AND FORMULAE
(SEE, E.G., THE PROPOSED "DRUG AND FACTORY INSPECTION AMENDMENTS OF
1962," H.R. 11581, 87TH CONG., 2D SESS.; HEARINGS BEFORE THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 11581 AND H.R.
11582, 87TH CONG., 2D SESS., 67-74; H.R. 6788, 88TH CONG., 1ST SESS.),
BUT THAT CONGRESS HAS ALWAYS DENIED THE AGENCY THIS POWER EXCEPT FOR
PRESCRIPTION DRUGS.  SEC 704, 21 U.S.C. SEC 374.  FRAMED IN THIS WAY,
WE AGREE WITH PETITIONERS THAT A "LEGAL" ISSUE IS RAISED, BUT
NEVERTHELESS WE ARE NOT PERSUADED THAT THE PRESENT SUIT IS PROPERLY
MAINTAINABLE. 

IN DETERMINING WHETHER A CHALLENGE TO AN ADMINISTRATIVE REGULATION IS
RIPE FOR REVIEW A TWOFOLD INQUIRY MUST BE MADE:  FIRST TO DETERMINE
WHETHER THE ISSUES TENDERED ARE APPROPRIATE FOR JUDICIAL RESOLUTION,
AND SECOND TO ASSESS THE HARDSHIP TO THE PARTIES IF JUDICIAL RELIEF IS
DENIED AT THAT STAGE. 

AS TO THE FIRST OF THESE FACTORS, WE AGREE WITH THE COURT OF APPEALS
THAT THE LEGAL ISSUE AS PRESENTLY FRAMED IS NOT APPROPRIATE FOR
JUDICIAL RESOLUTION.  THIS IS NOT BECAUSE THE REGULATION IS NOT THE
AGENCY'S CONSIDERED AND FORMALIZED DETERMINATION, FOR WE ARE IN
AGREEMENT WITH PETITIONERS THAT UNDER THIS COURT'S DECISIONS IN FROZEN
FOOD EXPRESS V. UNITED STATES, 351 U.S. 40, AND UNITED STATES V. STORER
BROADCASTING CO., 351 U.S. 192, THERE CAN BE NO QUESTION THAT THIS
REGULATION - PROMULGATED IN A FORMAL MANNER AFTER NOTICE AND EVALUATION
OF SUBMITTED COMMENTS - IS A "FINAL AGENCY ACTION" UNDER SEC 10 OF THE
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C.  SEC 704.  SEE ABBOTT
LABORATORIES V. GARDNER, ANTE, P. 136.  ALSO, WE RECOGNIZE THE FORCE OF
PETITIONERS' CONTENTION THAT THE ISSUE AS THEY HAVE FRAMED IT PRESENTS
A PURELY LEGAL QUESTION: WHETHER THE REGULATION IS TOTALLY BEYOND THE
AGENCY'S POWER UNDER THE STATUTE, THE TYPE OF LEGAL ISSUE THAT COURTS
HAVE OCCASIONALLY DEALT WITH WITHOUT REQUIRING A SPECIFIC ATTEMPT AT
ENFORCEMENT, COLUMBIA BROADCASTING SYSTEM V. UNITED STATES, 316 U.S.
407; CF. PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, OR EXHAUSTION OF
ADMINISTRATIVE REMEDIES, ALLEN V. GRAND CENTRAL AIRCRAFT CO., 347 U.S.
535; SKINNER & EDDY CORP. V. UNITED STATES, 249 U.S. 557. 

THESE POINTS WHICH SUPPORT THE APPROPRIATENESS OF JUDICIAL RESOLUTION
ARE, HOWEVER, OUTWEIGHED BY OTHER CONSIDERATIONS.  THE REGULATION
SERVES NOTICE ONLY THAT THE COMMISSIONER MAY UNDER CERTAIN
CIRCUMSTANCES ORDER INSPECTION OF CERTAIN FACILITIES AND DATA, AND THAT
FURTHER CERTIFICATION OF ADDITIVES MAY BE REFUSED TO THOSE WHO DECLINE
TO PERMIT A DULY AUTHORIZED INSPECTION UNTIL THEY HAVE COMPLIED IN THAT
REGARD.  AT THIS JUNCTURE WE HAVE NO IDEA WHETHER OR WHEN SUCH AN
INSPECTION WILL BE ORDERED AND WHAT REASONS THE COMMISSIONER WILL GIVE
TO JUSTIFY HIS ORDER.  THE STATUTORY AUTHORITY ASSERTED FOR THE
REGULATION IS THE POWER TO PROMULGATE REGULATIONS "FOR THE EFFICIENT
ENFORCEMENT" OF THE ACT, SEC 701(A).  WHETHER THE REGULATION IS
JUSTIFIED THUS DEPENDS NOT ONLY, AS PETITIONERS APPEAR TO SUGGEST, ON
WHETHER CONGRESS REFUSED TO INCLUDE A SPECIFIC SECTION OF THE ACT
AUTHORIZING SUCH INSPECTIONS, ALTHOUGH THIS FACTOR IS TO BE SURE A
HIGHLY RELEVANT ONE, BUT ALSO ON WHETHER THE STATUTORY SCHEME AS A
WHOLE JUSTIFIED PROMULGATION OF THE REGULATION.  SEE WONG YANG SUNG V.
MCGRATH, 339 U.S. 33, 47.  THIS WILL DEPEND NOT MERELY ON AN INQUIRY
INTO STATUTORY PURPOSE, BUT CONCURRENTLY ON AN UNDERSTANDING OF WHAT
TYPES OF ENFORCEMENT PROBLEMS ARE ENCOUNTERED BY THE FDA, THE NEED FOR
VARIOUS SORTS OF SUPERVISION IN ORDER TO EFFECTUATE THE GOALS OF THE
ACT, AND THE SAFEGUARDS DEVISED TO PROTECT LEGITIMATE TRADE SECRETS
(SEE 21 CFR SEC 130.14(C)).  WE BELIEVE THAT JUDICIAL APPRAISAL OF
THESE FACTORS IS LIKELY TO STAND ON A MUCH SURER FOOTING IN THE CONTEXT
OF A SPECIFIC APPLICATION OF THIS REGULATION THAN COULD BE THE CASE IN
THE FRAMEWORK OF THE GENERALIZED CHALLENGE MADE HERE. 

WE ARE ALSO LED TO THIS RESULT BY CONSIDERATIONS OF THE EFFECT ON THE
PETITIONERS OF THE REGULATION, FOR THE TEST OF RIPENESS, AS WE HAVE
NOTED, DEPENDS NOT ONLY ON HOW ADEQUATELY A COURT CAN DEAL WITH THE
LEGAL ISSUE PRESENTED, BUT ALSO ON THE DEGREE AND NATURE OF THE
REGULATION'S PRESENT EFFECT ON THOSE SEEKING RELIEF.  THE REGULATION
CHALLENGED HERE IS NOT ANALOGOUS TO THOSE THAT WERE INVOLVED IN
COLUMBIA BROADCASTING SYSTEM, SUPRA, AND STORER, SUPRA, AND THOSE OTHER
COLOR ADDITIVE REGULATIONS WITH WHICH WE DEAL IN GARDNER V. TOILET
GOODS ASSN., POST, P. 167, WHERE THE IMPACT OF THE ADMINISTRATIVE
ACTION COULD BE SAID TO BE FELT IMMEDIATELY BY THOSE SUBJECT TO IT IN
CONDUCTING THEIR DAY-TO-DAY AFFAIRS.  SEE ALSO FEDERAL COMMUNICATIONS
COMM'N V. AMERICAN BROADCASTING CO., 347 U.S. 284. 

THIS IS NOT A SITUATION IN WHICH PRIMARY CONDUCT IS AFFECTED - WHEN
CONTRACTS MUST BE NEGOTIATED, INGREDIENTS TESTED OR SUBSTITUTED, OR
SPECIAL RECORDS COMPILED.  THIS REGULATION MERELY STATES THAT THE
COMMISSIONER MAY AUTHORIZE INSPECTORS TO EXAMINE CERTAIN PROCESSES OR
FORMULAE; NO ADVANCE ACTION IS REQUIRED OF COSMETICS MANUFACTURERS, WHO
SINCE THE ENACTMENT OF THE 1938 ACT HAVE BEEN UNDER A STATUTORY DUTY TO
PERMIT REASONABLE INSPECTION OF A "FACTORY, WAREHOUSE, ESTABLISHMENT,
OR VEHICLE AND ALL PERTINENT EQUIPMENT, FINISHED AND UNFINISHED
MATERIALS; CONTAINERS, AND LABELING THEREIN."  SEC 704(A).  MOREOVER,
NO IRREMEDIABLE ADVERSE CONSEQUENCES FLOW FROM REQUIRING A LATER
CHALLENGE TO THIS REGULATION BY A MANUFACTURER WHO REFUSES TO ALLOW
THIS TYPE OF INSPECTION.  UNLIKE THE OTHER REGULATIONS CHALLENGED IN
THIS ACTION, IN WHICH SEIZURE OF GOODS, HEAVY FINES, ADVERSE PUBLICITY
FOR DISTRIBUTING "ADULTERATED" GOODS, AND POSSIBLE CRIMINAL LIABILITY
MIGHT PENALIZE FAILURE TO COMPLY, SEE GARDNER V. TOILET GOODS ASSN.,
POST, P. 167, A REFUSAL TO ADMIT AN INSPECTOR HERE WOULD AT MOST LEAD
ONLY TO A SUSPENSION OF CERTIFICATION SERVICES TO THE PARTICULAR PARTY,
A DETERMINATION THAT CAN THEN BE PROMPTLY CHALLENGED THROUGH AN
ADMINISTRATIVE PROCEDURE, (FN2) WHICH IN TURN IS REVIEWABLE BY A
COURT.  (FN3)  SUCH REVIEW WILL PROVIDE AN ADEQUATE FORUM FOR TESTING
THE REGULATION IN A CONCRETE SITUATION. 

IT IS TRUE THAT THE ADMINISTRATIVE HEARING WILL DEAL WITH THE
"FACTUAL BASIS" OF THE SUSPENSION, FROM WHICH PETITIONERS INFER THAT
THE COMMISSIONER WILL NOT ENTERTAIN AND CONSIDER A CHALLENGE TO HIS
STATUTORY AUTHORITY TO PROMULGATE THE REGULATION.  (FN4)  WHETHER OR
NOT THIS ASSUMPTION IS CORRECT, GIVEN THE FACT THAT ONLY MINIMAL, IF
ANY, ADVERSE CONSEQUENCES WILL FACE PETITIONERS IF THEY CHALLENGE THE
REGULATION IN THIS MANNER, WE THINK IT WISER TO REQUIRE THEM TO EXHAUST
THIS ADMINISTRATIVE PROCESS THROUGH WHICH THE FACTUAL BASIS OF THE
INSPECTION ORDER WILL CERTAINLY BE AIRED AND WHERE MORE LIGHT MAY BE
THROWN ON THE COMMISSIONER'S STATUTORY AND PRACTICAL JUSTIFICATIONS FOR
THE REGULATION.  COMPARE FEDERAL SECURITY ADM'R V. QUAKER OATS CO., 318
U.S. 218.   (FN5)  JUDICIAL REVIEW WILL THEN BE AVAILABLE, AND A COURT
AT THAT JUNCTURE WILL BE IN A BETTER POSITION TO DEAL WITH THE QUESTION
OF STATUTORY AUTHORITY.  ADMINISTRATIVE PROCEDURE ACT SEC 10(E)(B)(3),
5 U.S.C. SEC 706(2)(C). 

FOR THESE REASONS THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  THE COLOR ADDITIVE AMENDMENTS PROVIDE FOR LISTINGS OF COLOR
ADDITIVES BY THE SECRETARY "IF AND TO THE EXTENT THAT SUCH ADDITIVES
ARE SUITABLE AND SAFE  ...  ."  SEC 706(B)(1), 21 U.S.C. SEC
376(B)(1).  THE SECRETARY IS FURTHER AUTHORIZED TO PROVIDE "FOR THE
CERTIFICATION, WITH SAFE DILUENTS OR WITHOUT DILUENTS, OF BATCHES OF
COLOR ADDITIVES  ...  ."  SEC 706(C), 21 U.S.C. SEC 376(C).  A COLOR
ADDITIVE IS "DEEMED UNSAFE" UNLESS IT IS EITHER FROM A CERTIFIED BATCH
OR EXEMPTED FROM THE CERTIFICATION REQUIREMENT, SEC 706(A), 21 U.S.C.
SEC 376(A).  A COSMETIC CONTAINING SUCH AN "UNSAFE" ADDITIVE IS DEEMED
TO BE ADULTERATED, SEC 601(E), 21 U.S.C. SEC 361(E), AND IS PROHIBITED
FROM INTERSTATE COMMERCE.  SEC 301(A), 21 U.S.C. SEC 331(A). 

FN2  SEE 21 CFR SECS 8.28(B), 130.14-130.26.  WE RECOGNIZE THAT A
DENIAL OF CERTIFICATION MIGHT UNDER CERTAIN CIRCUMSTANCES CAUSE
INCONVENIENCE AND POSSIBLY HARDSHIP, DEPENDING UPON SUCH FACTORS AS HOW
LARGE A SUPPLY OF CERTIFIED ADDITIVES THE PARTICULAR MANUFACTURER MAY
HAVE, HOW RAPIDLY THE ADMINISTRATIVE HEARING AND JUDICIAL REVIEW ARE
CONDUCTED, AND WHAT TEMPORARY REMEDIAL OR PROTECTIVE PROVISIONS, SUCH
AS COMPLIANCE WITH A RESERVATION PENDING LITIGATION, MIGHT BE AVAILABLE
TO A MANUFACTURER TESTING THE REGULATION.  IN THE CONTEXT OF THE
PRESENT CASE WE NEED ONLY SAY THAT SUCH INCONVENIENCE IS SPECULATIVE
AND WE HAVE BEEN PROVIDED WITH NO INFORMATION THAT WOULD SUPPORT AN
ASSUMPTION THAT MUCH WEIGHT SHOULD BE ATTACHED TO THIS POSSIBILITY. 
FN3  THE STATUTE AND REGULATIONS ARE NOT EXPLICIT AS TO WHETHER REVIEW
WOULD LIE, AS JUDGE FRIENDLY SUGGESTED, 360 F.2D, AT 687, TO A COURT OF
APPEALS UNDER SECS 701(F) AND 706(D) OF THE ACT, OR TO A DISTRICT COURT
AS AN APPEAL FROM THE COMMISSIONER'S "FINAL ORDER," 21 CFR SEC 130.26,
UNDER SEC 10 OF THE ADMINISTRATIVE PROCEDURE ACT.  SEE 21 CFR SEC
130.31; COMPARE SEC 505, 21 U.S.C. SEC 355.  FOR PURPOSES OF THIS CASE
IT IS ONLY NECESSARY TO ASCERTAIN THAT JUDICIAL REVIEW WOULD BE
AVAILABLE TO CHALLENGE ANY SPECIFIC ORDER OF THE COMMISSIONER DENYING
CERTIFICATION SERVICES TO A PARTICULAR DRUG MANUFACTURER, AND WE
THEREFORE NEED NOT DECIDE THE STATUTORY QUESTION OF WHICH FORUM WOULD
BE APPROPRIATE FOR SUCH REVIEW. 

FN4  PETITIONERS ALSO CITE THE COMMISSIONER'S REFUSAL, IN THE CONTEXT
OF A PUBLIC HEARING ON CERTAIN DRUG REGULATIONS, TO ENTERTAIN
OBJECTIONS TO HIS STATUTORY AUTHORITY TO PROMULGATE THEM ON THE GROUND
THAT "THIS IS A QUESTION OF LAW AND CANNOT BE RESOLVED BY THE TAKING OF
EVIDENCE AT A PUBLIC HEARING."  31 FED. REG. 7174. 

FN5  SEE 3 DAVIS, ADMINISTRATIVE LAW TREATISE SEC 20.03, AT 69
(1958). 

MR. JUSTICE DOUGLAS DISSENTS FOR THE REASONS STATED BY JUDGE TYLER OF
THE DISTRICT COURT, 235 F. SUPP. 648, 651-652. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR CONCURRING OPINION OF MR. JUSTICE FORTAS, SEE POST, P. 174. 
..END :


















GARDNER V. TOILET GOODS ASSN.  387 U.S. 167. 


NO. 438.  ARGUED JANUARY 16, 1967.  - DECIDED MAY 22, 1967.  - 360 F.2D
677, AFFIRMED. 


THE COMMISSIONER OF FOOD AND DRUGS, BY DELEGATION FROM THE SECRETARY
OF HEALTH, EDUCATION, AND WELFARE, ISSUED THREE REGULATIONS UNDER THE
COLOR ADDITIVE AMENDMENTS OF 1960 TO THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT, WHICH THE RESPONDENTS CHALLENGE IN A PRE-ENFORCEMENT
ACTION ON THE GROUND THAT THE COMMISSIONER IMPERMISSIBLY EXPANDED THE
REACH OF THE STATUTE.  THE REGULATIONS (1) AMPLIFIED THE STATUTORY
DEFINITION OF COLOR ADDITIVES BY INCLUDING DILUENTS THEREIN, (2)
INCLUDED CERTAIN COSMETICS WITHIN THE SCOPE OF COLOR ADDITIVES, AND (3)
LIMITED THE EXEMPTION FOR HAIR DYES TO THOSE AS TO WHICH THE "PATCH
TEST" IS EFFECTIVE AND EXCLUDED FROM THE EXEMPTION CERTAIN COMPONENTS
OTHER THAN THE COLORING INGREDIENT OF THE DYE.  THE COURT OF APPEALS
AFFIRMED THE DISTRICT COURT'S JUDGMENT THAT IT HAD JURISDICTION TO HEAR
THE SUIT.  SEE TOILET GOODS ASSN.  V. GARDNER, ANTE, P. 158.  HELD:
UNDER THE STANDARDS SET FORTH IN ABBOTT LABORATORIES V. GARDNER, ANTE,
P. 136, NAMELY, THE APPROPRIATENESS OF THE ISSUES FOR JUDICIAL
DETERMINATION AND THE IMMEDIATE SEVERITY OF THE REGULATIONS' IMPACT ON
THE RESPONDENTS, THE PRE-ENFORCEMENT CHALLENGE TO THESE REGULATIONS IS
RIPE FOR JUDICIAL REVIEW.  PP. 170-174. 

(A)  THE ISSUE IS FRAMED BY THE PARTIES, WHAT GENERAL CLASSIFICATIONS
OF INGREDIENTS FALL WITHIN THE COVERAGE OF THE COLOR ADDITIVE
AMENDMENTS, IS A STRAIGHTFORWARD LEGAL ONE, THE CONSIDERATION OF WHICH
WOULD NOT NECESSARILY BE FACILITATED IF IT WERE RAISED IN THE CONTEXT
OF A SPECIFIC ATTEMPT TO ENFORCE THE REGULATIONS.  PP. 170-171. 

(B)  THESE REGULATIONS, WHICH ARE SELF-EXECUTING, HAVE AN IMMEDIATE
AND SUBSTANTIAL IMPACT ON THE RESPONDENTS, PROVIDING EXTENSIVE
PENALTIES AND SUBSTANTIAL PRELIMINARY PAPER WORK, SCIENTIFIC TESTING
AND RECORDKEEPING FOR THE COSMETIC MANUFACTURERS.  PP. 171-174. 

GARDNER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ET AL. V. TOILET
GOODS ASSOCIATION, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN TOILET GOODS ASSN. V. GARDNER, ANTE, P. 158, WE AFFIRMED A
JUDGMENT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT HOLDING THAT
JUDICIAL REVIEW OF A REGULATION CONCERNING INSPECTION OF COSMETICS
FACTORIES WAS IMPROPER IN A PRE-ENFORCEMENT SUIT FOR INJUNCTIVE AND
DECLARATORY JUDGMENT RELIEF.  THE PRESENT CASE IS BROUGHT HERE BY THE
GOVERNMENT SEEKING REVIEW OF THE COURT OF APPEALS' FURTHER HOLDING THAT
REVIEW OF THREE OTHER REGULATIONS IN THIS TYPE OF ACTION WAS PROPER. 
360 F.2D 677.  WE LIKEWISE AFFIRM. 

FOR REASONS STATED IN OUR OPINION IN ABBOTT LABORATORIES V. GARDNER,
ANTE, P. 136, WE FIND NOTHING IN THE FEDERAL FOOD, DRUG, AND COSMETIC
ACT (52 STAT. 1040, AS AMENDED), 21 U.S.C.  SEC 301 ET SEQ., THAT
PRECLUDES RESORT TO THE COURTS FOR PRE-ENFORCEMENT RELIEF UNDER THE
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. SECS 701-704 (1964 ED., SUPP.
II), AND THE DECLARATORY JUDGMENT ACT, 28 U.S.C. SEC 2201.  AND FOR
REASONS TO FOLLOW, WE BELIEVE THE COURT OF APPEALS WAS CORRECT IN
HOLDING THAT THE DISTRICT COURT DID NOT ERR WHEN IT REFUSED TO DISMISS
THE COMPLAINT WITH RESPECT TO THESE REGULATIONS. 

THE REGULATIONS CHALLENGED HERE WERE PROMULGATED UNDER THE COLOR
ADDITIVE AMENDMENTS OF 1960, 74 STAT. 397, 21 U.S.C. SECS 321-376. 
THESE STATUTORY PROVISIONS, IN BRIEF, ALLOW THE SECRETARY OF HEALTH,
EDUCATION, AND WELFARE AND HIS DELEGATE, THE COMMISSIONER OF FOOD AND
DRUGS, 22 FED. REG. 1051, 25 FED. REG. 8625, TO PRESCRIBE CONDITIONS
FOR THE USE OF COLOR ADDITIVES IN FOODS, DRUGS, AND COSMETICS.  THE ACT
REQUIRES CLEARANCE OF EVERY COLOR ADDITIVE IN THE FORM OF A REGULATION
PRESCRIBING CONDITIONS FOR USE OF THAT PARTICULAR ADDITIVE, AND ALSO
CERTIFICATION OF EACH "BATCH" UNLESS EXEMPTED BY REGULATION.  A COLOR
ADDITIVE IS DEFINED AS "A DYE, PIGMENT, OR OTHER SUBSTANCE ...  WHICH
WHEN ADDED OR APPLIED TO A FOOD, DRUG, OR COSMETIC, OR TO THE HUMAN
BODY OR ANY PART THEREOF, IS CAPABLE (ALONE OR THROUGH REACTION WITH
OTHER SUBSTANCE) OF IMPARTING COLOR THERETO  ...  ," 21 U.S.C. SEC
321(T)(1). 

UNDER HIS GENERAL RULE-MAKING POWER, SEC 701(A), 21 U.S.C. SEC
371(A), THE COMMISSIONER AMPLIFIED THE STATUTORY DEFINITION TO INCLUDE
AS COLOR ADDITIVES ALL DILUENTS, THAT IS, "ANY COMPONENT OF A COLOR
ADDITIVE MIXTURE THAT IS NOT OF ITSELF A COLOR ADDITIVE AND HAS BEEN
INTENTIONALLY MIXED THEREIN TO FACILITATE THE USE OF THE MIXTURE IN
COLORING FOODS, DRUGS, OR COSMETICS OR IN COLORING THE HUMAN BODY."  21
CFR SEC. 8.1(M).  BY INCLUDING ALL DILUENTS AS COLOR ADDITIVES, THE
COMMISSIONER IN RESPONDENTS' VIEW UNLAWFULLY EXPANDED THE NUMBER OF
ITEMS THAT MUST COMPLY WITH THE PREMARKETING CLEARANCE PROCEDURE. 

THE COMMISSIONER ALSO INCLUDED AS A COLOR ADDITIVE WITHIN THE
COVERAGE OF THE STATUTE ANY "SUBSTANCE THAT, WHEN APPLIED TO THE HUMAN
BODY RESULTS IN COLORING  ...  UNLESS THE FUNCTION OF COLORING IS
PURELY INCIDENTAL TO ITS INTENDED USE, SUCH AS IN THE CASE OF
DEODORANTS.  LIPSTICK, ROUGE, EYE MAKEUP COLORS, AND RELATED COSMETICS
INTENDED FOR COLORING THE HUMAN BODY ARE 'COLOR ADDITIVES.'"  21 CFR
SEC 8.1(F).  RESPONDENTS ALLEGED THAT IN PROMULGATING THIS REGULATION
THE COMMISSIONER AGAIN IMPERMISSIBLY EXPANDED THE REACH OF THE STATUTE
BEYOND THE CLEAR INTENTION OF CONGRESS. 

A THIRD REGULATION CHALLENGED BY THESE RESPONDENTS CONCERNS THE
STATUTORY EXEMPTION FOR HAIR DYES THAT CONFORM TO A STATUTORY
REQUIREMENT SET OUT IN SEC 601(E), 21 U.S.C. SEC 361(E).  THAT
REQUIREMENT PROVIDES THAT HAIR DYES ARE TOTALLY EXEMPT FROM COVERAGE OF
THE STATUTE IF THEY DISPLAY A CERTAIN CAUTIONARY NOTICE ON THEIR LABELS
PRESCRIBING A "PATCH TEST" TO DETERMINE WHETHER THE DYE WILL CAUSE SKIN
IRRITATION ON THE PARTICULAR USER.  THE COMMISSIONER'S REGULATION
RECOGNIZES THAT THE EXEMPTION APPLIES TO THE COLOR ADDITIVE AMENDMENTS,
BUT GOES ON TO DECLARE: "IF THE POISONOUS OR DELETERIOUS SUBSTANCE IN
THE 'HAIR DYE' IS ONE TO WHICH THE CAUTION IS INAPPLICABLE AND FOR
WHICH PATCH-TESTING PROVIDES NO SAFEGUARD, THE EXEMPTION DOES NOT
APPLY; NOR DOES THE EXEMPTION EXTEND TO THE POISONOUS OR DELETERIOUS
DILUENTS THAT MAY BE INTRODUCED AS WETTING AGENTS, HAIR CONDITIONERS,
EMULSIFIERS, OR OTHER COMPONENTS IN A COLOR SHAMPOO, RINSE, TINT, OR
SIMILAR DUAL-PURPOSE COSMETICS THAT ALTER THE COLOR OF THE HAIR."  21
CFR SEC 8.1(U). 

RESPONDENTS CONTEND THAT THIS REGULATION TOO IS IRRECONCILABLE WITH
THE STATUTE: WHEREAS THE STATUTE GRANTS AN ACROSS-THE-BOARD EXEMPTION
TO ALL HAIR DYES MEETING THE PATCH-TEST NOTICE REQUIREMENT, THE
REGULATION PURPORTS TO LIMIT THAT EXEMPTION TO COVER ONLY THOSE DYES AS
TO WHICH THE TEST IS "EFFECTIVE."  MOREOVER, IT IS SAID, THE REGULATION
APPEARS TO LIMIT THE EXEMPTION ONLY TO THE COLORING INGREDIENT OF THE
DYE, AND TO REQUIRE CLEARANCE FOR ALL OTHER COMPONENTS OF A PARTICULAR
HAIR DYE. 

WE AGREE WITH THE COURT OF APPEALS THAT RESPONDENTS' CHALLENGE TO
THESE REGULATIONS IS RIPE FOR JUDICIAL REVIEW UNDER THE STANDARDS
ELABORATED IN ABBOTT LABORATORIES V. GARDNER, SUPRA, NAMELY THE
APPROPRIATENESS OF THE ISSUES FOR JUDICIAL DETERMINATION AND THE
IMMEDIATE SEVERITY OF THE REGULATIONS' IMPACT UPON THE PLAINTIFFS. 

THE ISSUE AS FRAMED BY THE PARTIES IS A STRAIGHTFORWARD LEGAL ONE:
WHAT GENERAL CLASSIFICATION OF INGREDIENTS FALL WITHIN THE COVERAGE OF
THE COLOR ADDITIVE AMENDMENTS?  BOTH THE GOVERNMENT AND THE RESPONDENTS
AGREE THAT FOR ANY COLOR ADDITIVE, DISTRIBUTION IS FORBIDDEN UNLESS THE
ADDITIVE IS (1) LISTED IN A FOOD AND DRUG ADMINISTRATION REGULATION AS
SAFE FOR USE UNDER PRESCRIBED CONDITIONS, AND (2) COMES FROM A
"CERTIFIED" BATCH, UNLESS SPECIFICALLY EXEMPTED FROM THE CERTIFICATION
REQUIREMENT.   THE ONLY QUESTION RAISED IS WHAT SORT OF ITEMS ARE
"COLOR ADDITIVES."  THE THREE REGULATIONS OUTLINED ABOVE PURPORT TO
ELABORATE THE STATUTORY DEFINITION; THEY INCLUDE WITHIN THE STATUTORY
TERM CERTAIN CLASSES OF ITEMS, E.G., DILUENTS, FINISHED COSMETICS, AND
HAIR DYES, THAT RESPONDENTS ASSERT ARE NOT WITHIN THE PURVIEW OF THE
STATUTE AT ALL.  WE AGREE WITH THE DISTRICT COURT AND THE COURT OF
APPEALS THAT THIS IS NOT A SITUATION IN WHICH CONSIDERATION OF THE
UNDERLYING LEGAL ISSUES WOULD NECESSARILY BE FACILITATED IF THEY WERE
RAISED IN THE CONTEXT OF A SPECIFIC ATTEMPT TO ENFORCE THE
REGULATIONS.  (FN1) RATHER, "TO THE EXTENT THAT THEY PURPORT TO APPLY
PREMARKETING REQUIREMENTS TO BROAD CATEGORIES LIKE FINISHED PRODUCTS
AND NON-COLORING INGREDIENTS AND DEFINE THE HAIR-DYE EXEMPTION, THEY
APPEAR, PRIMA FACIE, TO BE SUSCEPTIBLE OF REASONED COMPARISON WITH THE
STATUTORY MANDATE WITHOUT INQUIRY INTO FACTUAL ISSUES THAT OUGHT TO BE
FIRST VENTILATED BEFORE THE AGENCY."  360 F.2D, AT 685. 

FOR THESE REASONS WE FIND NO BAR TO CONSIDERATION BY THE COURTS OF
THESE ISSUES IN THEIR PRESENT POSTURE.  ABBOTT LABORATORIES V. GARDNER,
SUPRA; UNITED STATES V. STORER BROADCASTING CO., 351 U.S. 192; FROZEN
FOOD EXPRESS V. UNITED STATES, 351 U.S. 40. 

THIS RESULT IS SUPPORTED AS WELL BY THE FACT THAT THESE REGULATIONS
ARE SELF-EXECUTING, AND HAVE AN IMMEDIATE AND SUBSTANTIAL IMPACT UPON
THE RESPONDENTS.  SEE ABBOTT LABORATORIES V. GARDNER, ANTE, PP. 152
153.  THE ACT, AS NOTED EARLIER, PRESCRIBES PENALTIES FOR THE
DISTRIBUTION OF GOODS CONTAINING COLOR ADDITIVES UNLESS THEY HAVE BEEN
CLEARED BOTH BY LISTING IN A REGULATION AND BY CERTIFICATION OF THE
PARTICULAR BATCH.  FACED WITH THESE REGULATIONS THE RESPONDENTS ARE
PLACED IN A QUANDARY.  ON THE ONE HAND THEY CAN, AS THE GOVERNMENT
SUGGESTS, REFUSE TO COMPLY, CONTINUE TO DISTRIBUTE PRODUCTS THAT THEY
BELIEVE DO NOT FALL WITHIN THE PURVIEW OF THE ACT, AND TEST THE
REGULATIONS BY DEFENDING AGAINST GOVERNMENT CRIMINAL, SEIZURE, OR
INJUNCTIVE SUITS AGAINST THEM.  WE AGREE WITH THE RESPONDENTS THAT THIS
PROPOSED AVENUE OF REVIEW IS BESET WITH PENALTIES AND OTHER IMPEDIMENTS
RENDERING IT INADEQUATE AS A SATISFACTORY ALTERNATIVE TO THE PRESENT
DECLARATORY JUDGMENT ACTION. 

THE PENALTIES TO WHICH COSMETICS MANUFACTURERS MIGHT BE SUBJECT ARE
EXTENSIVE.  A COLOR ADDITIVE THAT DOES NOT MEET THE PREMARKETING
CLEARANCE PROCEDURE IS DECLARED TO BE "UNSAFE," SEC 706(A), 21 U.S.C.
SEC 376(A), AND HENCE "ADULTERATED,"  SEC 601, 21 U.S.C. SEC 361(E). 
IT IS A "PROHIBITED ACT" TO INTRODUCE SUCH MATERIAL INTO COMMERCE, SEC
301, 21 U.S.C. SEC 331, SUBJECT TO INJUNCTION, SEC 302, 21 U.S.C. SEC
332, CRIMINAL PENALTIES, SEC 303, 21 U.S.C.  SEC 333, AND SEIZURE OF
THE GOODS, SEC 304(A), 21 U.S.C. SEC 334(A).  THE PRICE OF
NONCOMPLIANCE IS NOT LIMITED TO THESE FORMAL PENALTIES.  RESPONDENTS
NOTE THE IMPORTANCE OF PUBLIC GOOD WILL IN THEIR INDUSTRY, AND NOT
WITHOUT REASON FEAR THE DISASTROUS IMPACT OF AN ANNOUNCEMENT THAT THEIR
COSMETICS HAVE BEEN SEIZED AS "ADULTERATED." 

THE ALTERNATIVE TO CHALLENGING THE REGULATIONS THROUGH NONCOMPLIANCE
IS, OF COURSE, TO SUBMIT TO THE REGULATIONS AND PRESENT THE VARIOUS
INGREDIENTS EMBRACED IN THEM FOR PREMARKETING CLEARANCE.  WE CANNOT SAY
ON THIS RECORD THAT THE BURDEN OF SUCH A COURSE IS OTHER THAN
SUBSTANTIAL, ACCEPTING, AS WE MUST ON A MOTION TO DISMISS ON THE
PLEADINGS, THE ALLEGATIONS OF THE COMPLAINT AND SUPPORTING AFFIDAVITS
AS TRUE.  THE REGULATIONS IN THIS AREA REQUIRE SEPARATE PETITIONS FOR
LISTING EACH COLOR ADDITIVE, 21 CFR SECS 8.1(F), 8.1(M), 8.4(C), AT AN
INITIAL FEE, SUBJECT TO REFUNDS, OF $2,600 A LISTING.  21 CFR SEC
8.50(C).  ONE RESPONDENT, KOLMAR LABORATORIES, INC., IN AFFIDAVITS
SUBMITTED TO THE DISTRICT COURT, ASSERTED THAT MORE THAN 2,700
DIFFERENT FORMULAE WOULD FALL UNDER THE COMMISSIONER'S REGULATIONS AND
WOULD COST SOME $7,000,000 IN LISTING FEES ALONE.  ACCORDING TO THE
ALLEGATIONS THE COMPANY ALSO USES 264 DILUENTS WHICH UNDER THE
CHALLENGED REGULATIONS MUST BE INCLUDED AS COLOR ADDITIVES AS WELL. 
MOREOVER, A LISTING IS NOT OBTAINED BY MERE APPLICATION ALONE. 
PHYSICAL AND CHEMICAL TESTS MUST BE MADE AND THEIR RESULTS SUBMITTED
WITH EACH PETITION, 21 CFR SEC 8.4(C), AT A COST ALLEGED BY KOLMAR OF
UP TO $42,000,000.  DETAILED RECORDS MUST BE MAINTAINED FOR EACH LISTED
INGREDIENT, 21 CFR SEC 8.26, AND BATCHES OF LISTED ITEMS MUST
ULTIMATELY BE CERTIFIED, AGAIN AT A SUBSTANTIAL FEE, 21 CFR SEC 8.51. 

WHETHER OR NOT THESE COST ESTIMATES ARE EXAGGERATED  (FN2)  IT IS
QUITE CLEAR THAT IF RESPONDENTS, FAILING JUDICIAL REVIEW AT THIS STAGE,
ELECT TO COMPLY WITH THE REGULATIONS AND AWAIT ULTIMATE JUDICIAL
DETERMINATION OF THE VALIDITY OF THEM IN SUBSEQUENT LITIGATION, THE
AMOUNT OF PRELIMINARY PAPER WORK, SCIENTIFIC TESTING, AND RECORDKEEPING
WILL BE SUBSTANTIAL.  THE DISTRICT COURT FOUND IN DENYING THE MOTION TO
DISMISS: "I CONCLUDE THAT IN A SUBSTANTIAL AND PRACTICAL BUSINESS SENSE
PLAINTIFFS ARE THREATENED WITH IRREPARABLE INJURY BY THE OBVIOUSLY
INTENDED CONSEQUENCES OF THE CHALLENGED REGULATIONS, AND THAT TO RESORT
TO LATER PIECEMEAL RESOLUTION OF THE CONTROVERSY IN THE CONTEXT OF
INDIVIDUAL ENFORCEMENT PROCEEDINGS WOULD BE COSTLY AND INEFFICIENT, NOT
ONLY FOR THE PLAINTIFFS BUT AS WELL FOR THE PUBLIC AS REPRESENTED BY
THE DEFENDANTS."  235 F. SUPP. 648, 651. 

LIKE THE COURT OF APPEALS, WE THINK THAT THIS RECORD SUPPORTS THOSE
FINDINGS AND CONCLUSIONS.  AND AS IN ABBOTT LABORATORIES, SUPRA, WE
HAVE BEEN SHOWN NO SUBSTANTIAL GOVERNMENTAL INTEREST THAT SHOULD LEAD
US TO REACH A CONCLUSION DIFFERENT FROM THE ONE WE HAVE REACHED IN THAT
CASE.  WE HOLD THAT THIS ACTION IS MAINTAINABLE.  AFFIRMED. 

FN1  WE USE "NECESSARILY" ADVISEDLY, BECAUSE THIS CASE ARISES ON A
MOTION TO DISMISS.  THE DISTRICT COURT ALSO DENIED RESPONDENTS' MOTION
FOR SUMMARY JUDGMENT, AND CALLED FOR AN EVIDENTIARY HEARING.  IF IN THE
COURSE OF FURTHER PROCEEDINGS THE DISTRICT COURT IS PERSUADED THAT
TECHNICAL QUESTIONS ARE RAISED THAT REQUIRE A MORE CONCRETE SETTING FOR
PROPER ADJUDICATION, A DIFFERENT ISSUE WILL BE PRESENTED. 

FN2  THE COURT OF APPEALS OBSERVED THAT "VERY LIKELY THESE FIGURES
ARE EXAGGERATED  ...  ."  360 F.2D, AT 682, N. 5.  THE DISTRICT COURT
STATED THAT "WHILE THIS AMOUNT IS IMMEDIATELY SUSPECT, THERE CAN BE
LITTLE DOUBT BUT THAT THE ADDED RECORDSKEEPING AND LABORATORY TESTING
COSTS IN THEMSELVES WILL BE EXTREMELY BURDENSOME FOR ALL OF THE
PLAINTIFFS."  235 F. SUPP.  648, 652. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE CLARK
JOIN, CONCURRING IN NO. 336, AND DISSENTING IN NOS. 39 AND 438. 

I AM IN AGREEMENT WITH THE COURT IN NO. 336, TOILET GOODS ASSN. V.
GARDNER, THAT WE SHOULD AFFIRM THE DECISION OF THE COURT OF APPEALS FOR
THE SECOND CIRCUIT HOLDING THAT THE AUTHORITY OF THE SECRETARY OF
HEALTH, EDUCATION, AND WELFARE TO PROMULGATE THE REGULATION THERE
INVOLVED MAY NOT BE CHALLENGED BY INJUNCTIVE OR DECLARATORY JUDGMENT
ACTION.  THE REGULATION (HEREINAFTER REFERRED TO AS THE "ACCESS"
REGULATION) WAS ISSUED UNDER THE 1960 COLOR ADDITIVE AMENDMENTS TO THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT.  74 STAT. 397, 21 U.S.C. SECS 321
376.  IT REQUIRES THAT MANUFACTURERS AFFORD EMPLOYEES OF THE AGENCY
ACCESS TO ALL MANUFACTURING FACILITIES, PROCESSES, AND FORMULAE
INVOLVED IN THE MANUFACTURE OF COLOR ADDITIVES AND INTERMEDIATES, AND
PROVIDES THAT THE COMMISSIONER OF FOOD AND DRUGS "MAY IMMEDIATELY
SUSPEND CERTIFICATION SERVICE" SO LONG AS ACCESS IS DENIED.  28 FED.
REG. 6446, 21 CFR SEC 8.28.    I AM, HOWEVER, COMPELLED TO DISSENT FROM
THE DECISIONS OF THE COURT IN NO. 39, ABBOTT LABORATORIES V. GARDNER,
AND NO. 438, GARDNER V. TOILET GOODS ASSN.  THESE CASES ALSO INVOLVE
REGULATIONS PROMULGATED UNDER THE FEDERAL FOOD, DRUG, AND COSMETIC ACT,
52 STAT. 1040, AS AMENDED, 21 U.S.C. SEC 301 ET SEQ. NO. 438, LIKE NO.
336, ARISES UNDER THE COLOR ADDITIVE AMENDMENTS OF 1960.  THE
REGULATIONS IMPLEMENT THE STATUTORY DEFINITION OF COLOR ADDITIVES TO
INCLUDE DILUENTS, FINISHED COSMETICS AND CERTAIN HAIR DYES (THE
"DEFINITION" REGULATIONS).  THE REGULATION IN NO. 39 IMPLEMENTS
AMENDMENTS TO THE ACT ADOPTED IN 1962 BY REQUIRING THAT "EVERY TIME"
THE PROPRIETARY OR TRADE-MARK NAME OF A DRUG APPEARS ON LABELS AND
OTHER PRINTED MATERIALS, THE "ESTABLISHED" OR GENERIC NAME MUST
ACCOMPANY IT (THE "EVERY TIME" REGULATION). 

THE ISSUES CONSIDERED BY THE COURT ARE NOT CONSTITUTIONAL QUESTIONS. 
THE COURT DOES NOT REST UPON ANY ASSERTED RIGHT TO CHALLENGE THE
REGULATIONS AT THIS TIME BECAUSE THE AGENCY LACKS AUTHORITY TO
PROMULGATE THE REGULATIONS AS TO THE SUBJECT MATTERS INVOLVED, OR
BECAUSE ITS PROCEDURES HAVE BEEN ARBITRARY OR UNREASONABLE.  ITS
DECISION IS BASED SOLELY UPON THE CLAIM OF RIGHT TO CHALLENGE THESE
PARTICULAR REGULATIONS AT THIS TIME ON THE GROUND THAT THEY ARE
ERRONEOUS EXERCISES OF THE AGENCY'S POWER.  IT IS SOLELY ON THIS POINT
THAT THE COURT IN THESE TWO CASES AUTHORIZES THRESHOLD OR PRE
ENFORCEMENT CHALLENGE BY ACTION FOR INJUNCTION AND DECLARATORY RELIEF
TO SUSPEND THE OPERATION OF THE REGULATIONS IN THEIR ENTIRETY AND
WITHOUT REFERENCE TO PARTICULAR FACTUAL SITUATIONS. 

WITH ALL RESPECT, I SUBMIT THAT ESTABLISHED PRINCIPLES OF
JURISPRUDENCE, SOLIDLY ROOTED IN THE CONSTITUTIONAL STRUCTURE OF OUR
GOVERNMENT, REQUIRE THAT THE COURTS SHOULD NOT INTERVENE IN THE
ADMINISTRATIVE PROCESS AT THIS STAGE, UNDER THESE FACTS AND IN THIS
GROSS, SHOTGUN FASHION.  WITH ALL RESPECT, I SUBMIT THAT THE GOVERNING
PRINCIPLES OF LAW DO NOT PERMIT A DIFFERENT RESULT IN THESE CASES THAN
IN NO. 336.  IN NONE OF THESE CASES IS JUDICIAL INTERFERENCE WARRANTED
AT THIS STAGE, IN THIS FASHION, AND TO TEST - ON A GROSS, FREE-WHEELING
BASIS - WHETHER THE CONTENT OF THESE REGULATIONS IS WITHIN THE
STATUTORY INTENDMENT.  THE CONTRARY IS DICTATED BY A PROPER REGARD FOR
THE PURPOSE OF THE REGULATORY STATUTE AND THE REQUIREMENTS OF EFFECTIVE
ADMINISTRATION; AND BY REGARD FOR THE SALUTARY RULE THAT COURTS SHOULD
PASS UPON CONCRETE, SPECIFIC QUESTIONS IN A PARTICULARIZED SETTING
RATHER THAN UPON A GENERAL CONTROVERSY DIVORCED FROM PARTICULAR FACTS. 

THE COURT, BY TODAY'S DECISIONS IN NOS. 39 AND 438, HAS OPENED
PANDORA'S BOX.  FEDERAL INJUNCTIONS WILL NOW THREATEN PROGRAMS OF VAST
IMPORTANCE TO THE PUBLIC WELFARE.  THE COURT'S HOLDING HERE STRIKES AT
PROGRAMS FOR THE PUBLIC HEALTH.  THE DANGEROUS PRECEDENT GOES EVEN
FURTHER.  IT IS COLD COMFORT - IT IS LITTLE MORE THAN DELUSION - TO
READ IN THE COURT'S OPINION THAT "IT IS SCARCELY TO BE DOUBTED THAT A
COURT WOULD REFUSE TO POSTPONE THE EFFECTIVE DATE OF AN AGENCY ACTION
IF THE GOVERNMENT COULD SHOW  ...  THAT DELAY WOULD BE DETRIMENTAL TO
THE PUBLIC HEALTH OR SAFETY."  EXPERIENCE DICTATES, ON THE CONTRARY,
THAT IT CAN HARDLY BE HOPED THAT SOME FEDERAL JUDGE SOMEWHERE WILL NOT
BE MOVED AS THE COURT IS HERE, BY THE CRIES OF ANGUISH AND DISTRESS OF
THOSE REGULATED, TO GRANT A DISRUPTIVE INJUNCTION. 

THE DIFFERENCE BETWEEN THE MAJORITY AND ME IN THESE CASES IS NOT WITH
RESPECT TO THE EXISTENCE OF JURISDICTION TO ENJOIN, BUT TO THE
DEFINITION OF OCCASIONS ON WHICH SUCH JURISDICTION MAY BE INVOKED.  I
DO NOT DOUBT THAT THERE IS RESIDUAL JUDICIAL POWER IN SOME EXTREME AND
LIMITED SITUATIONS TO ENJOIN ADMINISTRATIVE ACTIONS EVEN IN THE ABSENCE
OF SPECIFIC STATUTORY PROVISION WHERE THE AGENCY HAS ACTED
UNCONSTITUTIONALLY OR WITHOUT JURISDICTION - AS DISTINGUISHED FROM AN
ALLEGEDLY ERRONEOUS ACTION.  BUT THE COURT'S OPINIONS IN NO. 39 AND NO.
438 APPEAR TO PROCEED ON THE PRINCIPLE THAT, EVEN WHERE NO
CONSTITUTIONAL ISSUES OR QUESTIONS OF ADMINISTRATIVE JURISDICTION OR OF
ARBITRARY PROCEDURE ARE INVOLVED, EXERCISE OF JUDICIAL POWER TO ENJOIN
ALLEGEDLY ERRONEOUS REGULATORY ACTION IS PERMISSIBLE UNLESS CONGRESS
HAS EXPLICITLY PROHIBITED IT, PROVIDED ONLY THAT THE CONTROVERSY IS
"RIPE" FOR JUDICIAL DETERMINATION.  THIS IS A RULE THAT IS NOVEL IN ITS
BREADTH AND DESTRUCTIVE IN ITS IMPLICATIONS AS ILLUSTRATED BY THE
PRESENT APPLICATION.  AS WILL APPEAR, I BELIEVE THAT THIS APPROACH
IMPROPERLY AND UNWISELY GIVES INDIVIDUAL FEDERAL DISTRICT JUDGES A
ROVING COMMISSION TO HALT THE REGULATORY PROCESS, AND TO DO SO ON THE
BASIS OF ABSTRACTIONS AND GENERALITIES INSTEAD OF CONCRETE FACT
SITUATIONS, AND THAT IT IMPERMISSIBLY BROADENS THE LICENSE OF THE
COURTS TO INTERVENE IN ADMINISTRATIVE ACTION BY MEANS OF A THRESHOLD
SUIT FOR INJUNCTION RATHER THAN BY THE METHOD PROVIDED BY STATUTE. 

THE ADMINISTRATIVE PROCEDURE ACT  (FN1)  AND FUNDAMENTAL PRINCIPLES
OF OUR JURISPRUDENCE  (FN2) INSIST THAT THERE MUST BE SOME TYPE OF
EFFECTIVE JUDICIAL REVIEW OF FINAL, SUBSTANTIVE AGENCY ACTION WHICH
SERIOUSLY AFFECTS PERSONAL OR PROPERTY RIGHTS.  BUT, "ALL
CONSTITUTIONAL QUESTIONS ASIDE, IT IS FOR CONGRESS TO DETERMINE HOW THE
RIGHTS WHICH IT CREATES SHALL BE ENFORCED  ...  .  IN SUCH A CASE THE
SPECIFICATION OF ONE REMEDY NORMALLY EXCLUDES ANOTHER."  SWITCHMEN'S
UNION V. BOARD, 320 U.S. 297, 301 (1943).  WHERE CONGRESS HAS PROVIDED
A METHOD OF REVIEW, THE REQUISITE SHOWING TO INDUCE THE COURTS
OTHERWISE TO BRING A GOVERNMENTAL PROGRAM TO A HALT MAY NOT BE MADE BY
A MERE SHOWING OF THE IMPACT OF THE REGULATION AND THE CUSTOMARY
HARDSHIPS OF INTERIM COMPLIANCE.  AT LEAST IN CASES WHERE THE CLAIM IS
OF ERRONEOUS ACTION RATHER THAN THE LACK OF JURISDICTION OR DENIAL OF
PROCEDURAL DUE PROCESS, A SUIT FOR INJUNCTIVE OR DECLARATORY RELIEF
WILL NOT LIE ABSENT A CLEAR DEMONSTRATION THAT THE TYPE OF REVIEW
AVAILABLE UNDER THE STATUTE WOULD NOT BE "ADEQUATE," THAT THE
CONTROVERSIES ARE OTHERWISE "RIPE" FOR JUDICIAL DECISION, AND THAT NO
PUBLIC INTEREST EXISTS WHICH OFFSETS THE PRIVATE VALUES WHICH THE
LITIGATION SEEKS TO VINDICATE.  AS I SHALL DISCUSS, NO SUCH SHOWING IS
OR CAN BE MADE HERE. 

              I. 

SINCE ENACTMENT OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT IN 1938,
THE MECHANISM FOR JUDICIAL REVIEW OF AGENCY ACTIONS UNDER ITS
PROVISIONS HAS BEEN WELL UNDERSTOOD.  EXCEPT FOR SPECIFIC TYPES OF
AGENCY REGULATIONS AND ACTIONS TO WHICH I SHALL REFER, JUDICIAL REVIEW
HAS BEEN CONFINED TO ENFORCEMENT ACTIONS INSTITUTED BY THE ATTORNEY
GENERAL ON RECOMMENDATION OF THE AGENCY.  AS THE RECURRENT DEBATE OVER
THIS TECHNIQUE DEMONSTRATES, THIS RESTRICTED AVENUE FOR CHALLENGE HAS
BEEN DEEMED NECESSARY BECAUSE OF THE DIRECT AND URGENT RELATIONSHIP OF
THE FIELD OF REGULATION TO THE PUBLIC HEALTH.  (FN3)  IT IS THIS AVENUE
THAT APPLIES WITH RESPECT TO THE REGULATIONS AT ISSUE IN THE PRESENT
CASES. 

THE SCHEME OF THE ACT, IN THIS RESPECT, IS AS FOLLOWS:  "PROHIBITED
ACTS" ARE LISTED IN SEC 301, 52 STAT. 1042, AS AMENDED, 21 U.S.C. SEC
331.  SUBSEQUENT SECTIONS AUTHORIZE THE ATTORNEY GENERAL TO INSTITUTE
THREE TYPES OF PROCEEDINGS.  FIRST, UNDER SEC 302, 52 STAT.  1043, AS
AMENDED, 21 U.S.C. SEC 332, HE MAY APPLY TO THE DISTRICT COURTS OF THE
UNITED STATES FOR INJUNCTIVE RELIEF.  IF AN INJUNCTION IS VIOLATED,
JURY TRIAL IS ASSURED ON DEMAND OF THE ACCUSED.  SECOND, UNDER SEC 304,
52 STAT. 1044, AS AMENDED, 21 U.S.C. SEC 334, THE ATTORNEY GENERAL MAY
INSTITUTE LIBEL PROCEEDINGS IN THE DISTRICT COURTS AND SEEK ORDERS FOR
SEIZURE OF ANY MISBRANDED OR ADULTERATED FOOD, DRUG, DEVICE, OR
COSMETIC.  THIRD, CRIMINAL PROSECUTION IS AUTHORIZED FOR VIOLATIONS,
BUT BEFORE THE SECRETARY MAY REPORT A VIOLATION TO THE ATTORNEY GENERAL
FOR CRIMINAL PROSECUTION, HE MUST AFFORD THE AFFECTED PERSON AN
OPPORTUNITY TO PRESENT HIS VIEWS.  SECS 303, 305, 52 STAT. 1043, 1045,
AS AMENDED, 21 U.S.C. SECS 333, 335. 

THE PRESENT REGULATIONS CONCEDEDLY WOULD BE REVIEWABLE IN THE COURSE
OF ANY OF THE ABOVE PROCEEDINGS.  APART FROM THESE GENERAL PROVISIONS,
THE ACT CONTAINS SPECIFIC PROVISIONS FOR ADMINISTRATIVE HEARING AND
REVIEW IN THE COURTS OF APPEALS WITH RESPECT TO REGULATIONS ISSUED
UNDER CERTAIN, ENUMERATED PROVISIONS OF THE ACT - NOT INCLUDING THOSE
HERE INVOLVED.  THESE APPEAR IN SEC 701(F) OF THE ACT, 52 STAT. 1055,
AS AMENDED, 21 U.S.C. SEC 371(F).  SECTION 701, BY SUBDIVISION (A),
CONTAINS THE SECRETARY'S GENERAL AUTHORITY, EXERCISED IN THE PRESENT
CASES, TO PROMULGATE "REGULATIONS FOR THE EFFICIENT ENFORCEMENT OF THE
ACT."  SUBDIVISIONS (E) AND (F) PROVIDE FOR PUBLIC HEARINGS,
ADMINISTRATIVE FINDINGS, AND JUDICIAL REVIEW IN A COURT OF APPEALS WITH
RESPECT TO THOSE REGULATIONS SPECIFICALLY ENUMERATED IN SUBSECTION
(E).  (FN4)  THE COURT AGREES THAT THIS PROCEDURE APPLIES ONLY TO THE
ENUMERATED TYPES OF REGULATIONS AND THAT THE PRESENT REGULATIONS ARE
UNAFFECTED.   THEN, AS TO THE ENUMERATED REGULATIONS WHICH ARE SUBJECT
TO JUDICIAL REVIEW - AND ONLY AS TO THEM - SUBPARAGRAPH (6) OF
SUBSECTION (F) SPECIFIES THAT "THE REMEDIES PROVIDED FOR IN THIS
SUBSECTION SHALL BE IN ADDITION TO AND NOT IN SUBSTITUTION FOR ANY
OTHER REMEDIES PROVIDED BY LAW."  THIS "SAVING CLAUSE" DOES NOT APPLY
OR REFER TO REGULATIONS OTHER THAN THOSE ENUMERATED, AND THE COURT'S
ARGUMENT TO THE CONTRARY IS INCONSISTENT WITH THE CLEAR WORDING AND
PLACEMENT OF THE CLAUSE.  (FN5) 

AT VARIOUS TIMES, SEC 701 HAS BEEN AMENDED TO INCLUDE TYPES OF
REGULATIONS IN ADDITION TO THOSE INITIALLY SUBJECTED TO SEC 701(F). 
INDEED, IN THE CONGRESSIONAL ACTION WHICH INCLUDED ENACTMENT OF
STATUTORY PROVISIONS HERE IN ISSUE, THE 1960 COLOR ADDITIVE AMENDMENTS,
74 STAT.  397, CONGRESS AMENDED SEC 701(E), 21 U.S.C. SEC 376(E) TO
INCLUDE CERTAIN OF THE REGULATIONS AUTHORIZED BY THE COLOR ADDITIVE
AMENDMENTS.  BUT, SIGNIFICANTLY, THESE DID NOT INCLUDE THE REGULATIONS
AT ISSUE IN NO. 336 AND NO. 438.  THE SAME IS TRUE WITH RESPECT TO THE
LATER DRUG AMENDMENTS OF 1962, 76 STAT. 780.  SUBSECTION (E) WAS AGAIN
ENLARGED, BUT THE PROVISION INVOLVED IN NO. 39 WAS NOT INCLUDED.  THESE
ACTIONS WERE TAKEN IN THE COURSE OF VIGOROUS DEBATE AS TO THE
ENFORCEMENT AND REVIEW PROVISIONS WHICH SHOULD BE ENACTED WITH RESPECT
TO THE 1960 AND 1962 AMENDMENTS. 

ON A NUMBER OF OCCASIONS CONGRESS CONSIDERED AND REJECTED THE
PROPOSAL THAT DISTRICT COURTS BE GIVEN POWER TO RESTRAIN BY INJUNCTION
THE ENFORCEMENT OF REGULATIONS.  (FN6)  THE BILL THAT BECAME LAW IN
1938 ORIGINALLY CONTAINED PROVISIONS FOR HEARINGS AND JUDICIAL REVIEW
IN THE DISTRICT COURTS OF CERTAIN SPECIFIED TYPES OF REGULATIONS
(SUBSTANTIALLY THOSE LATER ENACTED AS SEC 701, SUPRA).  DISTRICT COURTS
WERE ALSO EMPOWERED TO ENJOIN "ANY REGULATION PROMULGATED IN ACCORDANCE
WITH SECTION 24" (WHICH WOULD INCLUDE THE REGULATIONS AT ISSUE IN THESE
CASES, PROMULGATED UNDER SEC 701(A)).  S. 5, 75TH CONG., 1ST SESS.
(1937).  THE HOUSE COMMITTEE ELIMINATED THE LATTER PROVISION AND
SUBSTITUTED WHAT BECAME SUSECTION (F).  THIS DRAFT AUTHORIZED REVIEW IN
A DISTRICT COURT OF REGULATIONS UNDER SUBSECTION (E) AND OF THOSE
ORDERS ONLY.  (FN7)  EVEN THIS RESTRICTED PROVISION FOR ENJOINING
CERTAIN REGULATIONS MET WITH BITTER OPPOSITION BECAUSE IT "WOULD
POSTPONE INDEFINITELY THE CONSUMER PROTECTION" OR WOULD "HAMSTRING" THE
ACT'S ENFORCEMENT AND "AMOUNT TO A PRACTICAL NULLIFICATION  ...  OF THE
BILL."  (FN8)  THE CONFERENCE COMMITTEE THEN DRAFTED THE BILL WHICH WAS
ENACTED, INCLUDING THE HOUSE REVISION OF THE REVIEW PROVISION WHICH
BECAME SEC 701 EXCEPT FOR A SIGNIFICANT CHANGE: SO CONCERNED WAS THE
CONGRESS LEST THE ADMINISTRATION OF THE LAW SHOULD BE SUBJECT TO
JUDICIAL INTERVENTION THAT EVEN WITH RESPECT TO THE SPECIFIED
REGULATIONS IN SUBSECTION (E) THE REVIEWING POWER WAS PLACED IN THE
COURTS OF APPEALS RATHER THAN IN THE DISTRICT COURTS.  (FN9)  THIS WAS
TO MEET THE CRITICISM THAT "A SINGLE DISTRICT JUDGE COULD BE FOUND WHO
WOULD ISSUE AN INJUNCTION."  BUT THIS IS EXACTLY WHAT THE COURT TODAY
DECREES.  REJECTED ALONG WITH THE ORIGINAL HOUSE PROPOSAL WAS THE
SUGGESTION FROM THE DEPARTMENT OF JUSTICE, SET OUT AT 83 CONG. REC.
7892 (1938), THAT THE CONGRESS SHOULD LEAVE REVIEW IN THE HANDS OF THE
DISTRICT COURTS' TRADITIONAL INJUNCTIVE POWERS - ALTHOUGH THE COURT
TODAY RESUSCITATES THAT LOST CAUSE, TOO. 

AS THIS COURT HELD IN EWING V. MYTINGER & CASSELBERRY, 339 U.S. 594,
600-601 (1950), "THIS HIGHLY SELECTIVE MANNER IN WHICH CONGRESS HAS
PROVIDED (IN THIS ACT) FOR JUDICIAL REVIEW REINFORCES THE INFERENCE
THAT THE ONLY REVIEW OF THE ISSUE OF PROBABLE CAUSE FOR SEIZURE  ...
WAS THE ONE PROVIDED IN THE LIBEL SUIT." 

IN EVALUATING THE DESTRUCTIVE FORCE AND EFFECT OF THE COURT'S ACTION
IN THESE CASES, IT IS NECESSARY TO REALIZE THAT IT IS ARMING EACH OF
THE FEDERAL DISTRICT JUDGES IN THIS NATION WITH POWER TO ENJOIN
ENFORCEMENT OF REGULATIONS AND ACTIONS UNDER THE FEDERAL LAW DESIGNED
TO PROTECT THE PEOPLE OF THIS NATION AGAINST DANGEROUS DRUGS AND
COSMETICS.  RESTRAINING ORDERS AND TEMPORARY INJUNCTIONS WILL SUSPEND
APPLICATION OF THESE PUBLIC SAFETY LAWS PENDING YEARS OF LITIGATION - A
TIME SCHEDULE WHICH THESE CASES ILLUSTRATE.  (FN10)  THEY ARE
DISRUPTIVE ENOUGH, REGARDLESS OF THE ULTIMATE OUTCOME.  THE COURT'S
VALIDATION OF THIS SHOTGUN ATTACK UPON THIS VITAL LAW AND ITS
ADMINISTATION IS NOT CONFINED TO THESE SUITS, THESE REGULATIONS, OR
THESE PLAINTIFFS - OR EVEN THIS STATUTE.  IT IS A GENERAL HUNTING
LICENSE; AND I RESPECTFULLY SUBMIT, A LICENSE FOR MISCHIEF BECAUSE IT
AUTHORIZES AGGRESSION WHICH IS RICHLY REWARDED BY DELAY IN THE
SUBJECTION OF PRIVATE INTERESTS TO PROGRAMS WHICH CONGRESS BELIEVES TO
BE REQUIRED IN THE PUBLIC INTEREST.  AS I READ THE COURT'S OPINION, IT
DOES NOT SERIOUSLY CONTEND THAT CONGRESS AUTHORIZED OR CONTEMPLATED
THIS TYPE OF RELIEF.   IT DOES NOT REST UPON THE ARGUMENT THAT CONGRESS
INTENDED THAT INJUNCTIONS OR THRESHOLD RELIEF SHOULD BE AVAILABLE.  THE
COURT SEEMS TO ANNOUNCE A DOCTRINE, WHICH IS NEW AND STARTLING IN
ADMINISTRATIVE LAW, THAT THE COURTS, IN DETERMINING WHETHER TO EXERCISE
JURISDICTION BY INJUNCTION, WILL NOT LOOK TO SEE WHETHER CONGRESS
INTENDED THAT THE PARTIES SHOULD RESORT TO ANOTHER AVENUE OF REVIEW,
BUT WILL BE GOVERNED BY WHETHER CONGRESS HAS "PROHIBITED" INJUNCTIVE
RELIEF.  THE COURT HOLDS THAT "JUDICIAL REVIEW OF A FINAL AGENCY ACTION
BY AN AGGRIEVED PERSON WILL NOT BE CUT OFF UNLESS THERE IS PERSUASIVE
REASON TO BELIEVE THAT SUCH WAS THE PURPOSE OF CONGRESS."  AS AUTHORITY
FOR THIS, THE COURT PRODUCES LITTLE SUPPORT.  BOARD OF GOVERNORS V.
AGNEW, 329 U.S. 441 (1947), INVOLVED REMOVAL FROM OFFICE OF CERTAIN
BANK DIRECTORS.  HAD THE COURT NOT AUTHORIZED REVIEW, THE AGGRIEVED
INDIVIDUALS COULD ONLY TEST THE CORRESTNESS OF THE ADMINISTRATOR'S
DECISION BY IGNORING IT AND RISKING A PRISON TERM OF FIVE YEARS.  NO
EVIDENCE OF CONGRESSIONAL HOSTILITY TO REVIEW WAS ADDUCED.  (FN11)
HEIKKILA V. BARBER, 345 U.S. 229 (1953), DOES NOT EVEN REMOTELY SUPPORT
THE COURT'S CONTENTION.  ON THE CONTRARY, IT HOLDS THAT A PROVISION IN
THE IMMIGRATION ACT OF 1917 TO THE EFFECT THAT THE DECISION OF THE
ATTORNEY GENERAL IS "FINAL" IN DEPORTATION CASES PRECLUDES DIRECT
ATTACK UPON A DEPORTATION ORDER BY MEANS OF SUITS FOR INJUNCTION OR
DECLARATORY RELIEF.  WHAT MIGHT BE TERMED THE OTHER PERSONAL LIBERTIES
CASES RELIED UPON BY THE COURT ARE DISCUSSED BELOW.  BUT IN CASES LIKE
THE PRESENT, WHERE COURTS AND ADMINISTRATIVE AGENCIES BOTH FUNCTION, IT
HAS ALWAYS - TO THIS DATE - BEEN ACCEPTED THAT THE INTENTION OF
CONGRESS - NOT ITS MERE FAILURE TO PROHIBIT - WILL BE FAITHFULLY
SEARCHED OUT BY THE COURTS AND WILL BE IMPLEMENTED EXCEPT IN THE
UNUSUAL AND EXTRAORDINARY SITUATIONS WHERE THE RESULT WOULD BE
ESSENTIALLY TO LEAVE THE PARTIES WITHOUT ANY ADEQUATE RIGHT TO JUDICIAL
REVIEW.  COMPARE LEEDOM V. KYNE, 358 U.S. 184 (1958), WITH SWITCHMEN'S
UNION V. BOARD, SUPRA; MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S.
41 (1938); AND ADAMS V. NAGLE, 303 U.S. 532 (1938). 

IN EFFECT, THE COURT SAYS THAT THE FOOD, DRUG, AND COSMETIC ACT HAS
ALWAYS AUTHORIZED THRESHOLD INJUNCTIONS OR DECLARATORY JUDGMENT RELIEF:
THAT THIS RELIEF HAS BEEN AVAILABLE SINCE THE ENACTMENT OF THE LAW IN
1938, AND THAT IT WOULD HAVE BEEN GRANTED IN APPROPRIATE CASES WHICH
ARE "RIPE" FOR REVIEW.  I MUST WITH RESPECT CHARACTERIZE THIS AS A
SURPRISING REVELATION.  DESPITE THE HIGHLY CONTROVERSIAL NATURE OF MANY
PROVISIONS OF SUCH REGULATIONS UNDER THE ACT, THIS POSSIBILITY HAS NOT
BEEN REALIZED BY INGENIOUS AND AGGRESSIVE COUNSEL FOR THE DRUG AND FOOD
AND COSMETICS INDUSTRIES UNTIL THIS TIME.  THE COURT'S OPINION AND THE
BRIEFS CITE ONLY A SINGLE CASE IN WHICH SUCH RELIEF HAS BEEN GRANTED
PRIOR TO THE PRESENT CASES, AND THAT PRECEDED ENACTMENT OF THE PRESENT
STATUTORY SCHEME.  MORGAN V. NOLAN, 3 F. SUPP. 143 (D.C.S.D. IND.
1933), AFF'D, 69 F.2D 471 (C.A. 7TH CIR. 1934).  THE FACT OF THE MATTER
IS THAT, EXCEPT FOR THE INSTANCES ENUMERATED IN SECS 701(E) AND (F),
THE AVENUE FOR ATTACK UPON THE STATUTE AND REGULATIONS HAS BEEN BY
DEFENSE TO SPECIFIC ENFORCEMENT ACTIONS BY THE AGENCY.  CONGRESS HAS
BEEN WELL AWARE OF THIS FOR MORE THAN A GENERATION THAT THE STATUTE HAS
BEEN IN EFFECT.  (FN12) 

WHERE A REMEDY IS PROVIDED BY STATUTE, I SUBMIT THAT IT IS AND HAS
BEEN FUNDAMENTAL TO OUR LAW, TO JUDICIAL ADMINISTRATION, TO THE
PRINCIPLE OF SEPARATION OF POWERS IN OUR CONSTITUTION, THAT THE COURTS
WILL WITHHOLD EQUITABLE OR DISCRETIONARY REMEDIES UNLESS THEY CONCLUDE
THAT THE STATUTORY REMEDY IS INADEQUATE.  EVEN THEN, AS THE COURT
RECOGNIZES, THE CASE MUST BE "RIPE" OR APPROPRIATE FOR THRESHOLD
JUDICIAL REVIEW.  ANY OTHER DOCTRINE THAN THIS - ANY DOCTRINE WHICH SO
FAR DEPARTS FROM JUDICIAL RESTRAINT AND JUDICIAL RECOGNITION OF THE
POWER OF THE CONGRESS AND THE ADMINISTRATIVE AGENCIES - IS BOUND TO BE
DISRUPTIVE.  IT WOULD MEAN THAT PROVISIONS IN REGULATORY STATUTES AND
REGULATIONS OF A WIDE VARIETY OF ADMINISTRATIVE AGENCIES WOULD BE
SUBJECT TO THRESHOLD ATTACK BECAUSE CONGRESS HAS NOT, IN ADDITION TO
PROVIDING JUDICIAL REVIEW BY PRESCRIBED PROCEDURES, ALSO SAID TO THE
COURTS, "THOU SHALT NO ENJOIN IN LIMINE." 

THE LIMITED APPLICABILITY OF THE ADMINISTRATIVE PROCEDURE ACT IN
THESE CASES IS ENTIRELY CLEAR.  THAT ACT REQUIRES THAT UNLESS PRECLUDED
BY CONGRESS FINAL AGENCY ACTION OF THE SORTS INVOLVED HERE MUST BE
REVIEWABLE AT SOME STAGE, AND IT RECOGNIZES THAT SUCH REVIEW MUST BE
"ADEQUATE."  IT MERELY PRESENTS THE QUESTION IN THESE CASES.  IT DOES
NOT SUPPLY AN ANSWER.  CERTAINLY, IT WOULD BE REVOLUTIONARY DOCTRINE
THAT THE ADMINISTRATIVE PROCEDURE ACT AUTHORIZES THRESHOLD SUITS FOR
INJUNCTION EVEN WHERE ANOTHER AND ADEQUATE REVIEW PROVISION IS
AVAILABLE.  THE COURT REFERS TO THE ADMINISTRATIVE PROCEDURE ACT AS
"SEMINAL."  IT IS, IN A REAL SENSE; BUT ITS SEED MAY NOT PRODUCE THE
LUSH, TROPICAL JUNGLE OF THE DOCTRINE THAT THE COURT WILL PERMIT AGENCY
ACTION TO BE ATTACKED IN LIMINE BY SUIT FOR INJUNCTION OR DECLARATORY
ACTION UNLESS CONGRESS EXPRESSLY PROHIBITS REVIEW OF REGULATORY
ACTION.  SEE 3 DAVIS, ADMINISTRATIVE LAW TREATISE SEC 22.08 (1958). 

I SUBMIT THAT IF WE ARE TO JUDGE AND NOT TO LEGISLATE POLICY, WE
SHOULD IMPLEMENT AND NOT CONTRADICT THE PROGRAM LAID OUT BY THE
CONGRESS.  CONGRESS DID NOT INTEND THAT THE REGULATIONS AT ISSUE IN
THIS CASE MIGHT BE CHALLENGED IN GROSS, APART FROM A SPECIFIC
CONTROVERSY, OR IN THE DISTRICT COURTS, OR BY INJUNCTION OR DECLARATORY
JUDGMENT ACTION.  ON THE CONTRARY, THE CLEAR INTENT WAS THAT THE
REGULATIONS, BEING TO PROTECT THE CONSUMER FROM UNSAFE, POTENTIALLY
HARMFUL, AND "MISBRANDED" FOODS, DRUGS, DEVICES, AND COSMETICS, WERE TO
BE SUBJECT TO CHALLENGE ONLY BY WAY OF DEFENSE TO ENFORCEMENT
PROCEEDINGS.  IT WAS CONGRESS' JUDGMENT, AFTER MUCH CONTROVERSY, THAT
THE SPECIAL NATURE OF THE ACT AND ITS ADMINISTRATION REQUIRED THIS
PROTECTION AGAINST DELAY AND DISRUPTION.  WE SHOULD NOT ARROGATE TO
OURSELVES THE POWER TO OVERRIDE THIS JUDGMENT.  NOT A SINGLE CASE CITED
BY THE MAJORITY IN WHICH AGENCY ACTION WAS HELD REVIEWABLE AROSE
AGAINST THIS KIND OF BACKGROUND OF LEGISLATIVE HOSTILITY TO THRESHOLD
REVIEW IN THE DISTRICT COURTS. 

THE COURT IS IN ERROR, I SUBMIT, IN ITS APPROACH TO THIS PROBLEM;
AND, AS I SHALL ATTEMPT TO SHOW, IT IS IN ERROR IN ITS DECISION THAT,
EVEN GIVEN THIS PERMISSIVE APPROACH TO THE USE OF JUDICIAL INJUNCTIVE
POWER, THESE CONTROVERSIES ARE "RIPE" OR APPROPRIATE FOR DECISION. 

                                           II. 

I COME THEN TO THE QUESTIONS WHETHER THE REVIEW OTHERWISE AVAILABLE
UNDER THE STATUTE IS "ADEQUATE," WHETHER THE CONTROVERSIES ARE "RIPE"
OR APPROPRIATE FOR REVIEW IN TERMS OF THE EVALUATION OF THE COMPETING
PRIVATE AND PUBLIC INTERESTS.  I DISCUSS THESE TOGETHER BECAUSE THE
QUESTIONS OF ADEQUACY AND RIPENESS OR APPROPRIATENESS FOR REVIEW ARE
INTERRELATED.  I AGAIN NOTE THAT NO CONSTITUTIONAL ISSUES ARE RAISED,
AND, INDEED, NO ISSUES AS TO THE AUTHORITY OF THE AGENCY TO ISSUE
REGULATIONS OF THE GENERAL SORT INVOLVED.  THE ONLY ISSUE IS WHETHER
THAT AUTHORITY WAS PROPERLY EXERCISED. 

THERE IS, OF COURSE, NO ABSTRACT OR MECHANICAL METHOD FOR DETERMINING
THE ADEQUACY OF REVIEW PROVISIONS.  WHERE PERSONAL STATUS OR LIBERTIES
ARE INVOLVED, THE COURTS MAY WELL INSIST UPON A CONSIDERABLE EASE OF
CHALLENGING ADMINISTRATIVE ORDERS OR REGULATIONS.  CF. RUSK V. CORT,
369 U.S. 367 (1962); BUT CF. HEIKKILA V. BARBER, 345 U.S. 229 (1953). 
(FN13)  BUT IN SITUATIONS WHERE A REGULATORY SCHEME DESIGNED TO PROTECT
THE PUBLIC IS INVOLVED, THIS COURT HAS HELD THAT POSTPONEMENT OF THE
OPPORTUNITY TO OBTAIN JUDICIAL RELIEF IN THE INTEREST OF AVOIDING
DISRUPTION OF THE REGULATORY PLAN IS ENTIRELY JUSTIFIABLE.  EWING V.
MYTINGER & CASSELBERRY, 339 U.S. 594 (1950); CF. MYERS V. BETHLEHEM
SHIPBUILDING CORP., 303 U.S. 41 (1938).  (FN14)  THE EWING CASE
DRAMATICALLY ILLUSTRATES THE POINT.  IT INVOLVES THE SAME STATUTE AND
ENFORCEMENT PLAN AS ARE NOW BEFORE US. APPELLEE FILED SUIT IN THE
UNITED STATES DISTRICT COURT TO RESTRAIN ENFORCEMENT OF THE PROVISION
OF THE FOOD, DRUG, AND COSMETIC ACT WHICH AUTHORIZES MULTIPLE SEIZURE
OF MISBRANDED PRODUCTS.  APPELLEE CLAIMED THAT THE PROVISION WAS
UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE, AND THAT THE AGENCY HAD
ACTED ARBITRARILY "IN INSTITUTING" (THROUGH THE ATTORNEY GENERAL)
MULTIPLE SEIZURES WITHOUT AFFORDING APPELLEE AN OPPORTUNITY FOR HEARING
AS TO WHETHER THERE WAS "PROBABLE CAUSE" FOR THE SEIZURES.  A THREE
JUDGE DISTRICT COURT WAS CONVENED.  IT HELD FOR APPELLEE ON BOTH ISSUES
AND GRANTED AN INJUNCTION.  THIS COURT REVERSED ON THE GROUNDS THAT NO
HEARING IS NECESSARY FOR THE ADMINISTRATIVE DETERMINATION OF PROBABLE
CAUSE, AND THAT, IN ANY EVENT, THE DISTRICT COURT HAD NO JURISDICTION
TO REVIEW THAT DETERMINATION.  (FN15) 

IT IS NO ANSWER TO EWING TO POINT OUT, AS THE COURT DOES, THAT THE
PRECISE DETERMINATION ATTACKED BY THE PLAINTIFF WAS THAT OF PROBABLE
CAUSE FOR RECOMMENDING MULTIPLE SEIZURES.  THE IMPORTANT POINT IS THAT
THE COURT HELD THAT THE PROCESSES OF THE DISTRICT COURT COULD NOT BE
INVOKED EXCEPT IN THE ENFORCEMENT ACTION PROVIDED BY CONGRESS.  THE
FOLLOWING QUOTATION FROM MR. JUSTICE DOUGLAS' OPINION FOR THE COURT
DEMONSTRATES THE CONTROLLING FORCE OF EWING IN THE PRESENT CASE: 

"JUDICIAL REVIEW OF THIS PRELIMINARY PHASE OF THE ADMINISTRATIVE
PROCEDURE DOES NOT FIT THE STATUTORY SCHEME NOR SERVE THE POLICY OF THE
ACT.  CONGRESS MADE NUMEROUS ADMINISTRATIVE DETERMINATIONS UNDER THE
ACT REVIEWABLE BY THE COURTS  ...  .  THIS HIGHLY SELECTIVE MANNER IN
WHICH CONGRESS HAS PROVIDED FOR JUDICIAL REVIEW REINFORCES THE
INFERENCE THAT THE ONLY REVIEW OF THE ISSUE OF PROBABLE CAUSE WHICH
CONGRESS GRANTED WAS THE ONE PROVIDED IN THE LIBEL SUIT.  CF.
SWITCHMEN'S UNION V. BOARD, 320 U.S. 297, 305-306  ...  .  IF THE
DISTRICT COURT CAN STEP IN, STAY THE INSTITUTION OF SEIZURES, AND BRING
THE ADMINISTRATIVE REGULATION TO A HALT UNTIL IT HEARS THE CASE, THE
PUBLIC WILL BE DENIED THE SPEEDY PROTECTION WHICH CONGRESS PROVIDED MY
MULTIPLE SEIZURES."  339 U.S., AT 600-601. 

IN EWING, THE COMPANY'S ONLY RECOURSE WAS TO DEFEND IN THE SEIZURE
ACTIONS, AVAILING ITSELF OF CONSOLIDATION OF THE MULTIPLE SUITS IF IT
SO DESIRED.  339 U.S., AT 602.  DESPITE THE HARDSHIP AND DESTRUCTIVE
PUBLICITY OF MULTIPLE SIEZURES - A MORE SERIOUS VARIETY OF THE KIND OF
HARDSHIP WHICH SEEMS PROFOUNDLY TO AFFECT THE COURT IN THE PRESENT CASE
- THIS COURT REFUSED TO HOLD THAT THE REMEDY OF JUDICIAL REVIEW BY
DEFENSE IN THESE ACTIONS WAS INADEQUATE.  ON THE CONTRARY, IT HELD THAT
"CONGRESS WEIGHED THE POTENTIAL INJURY TO THE PUBLIC FROM MISBRANDED
ARTICLES AGAINST THE INJURY TO THE PURVEYOR OF THE ARTICLE FROM A
TEMPORARY INTERFERENCE WITH ITS DISTRIBUTION AND DECIDED IN FAVOR OF
THE SPEEDY, PREVENTIVE DEVICE OF MULTIPLE SEIZURES."  339 U.S., AT
601. 

I SUBMIT THAT THIS COURT'S ACTION IN NOS. 39 AND 438 SHARPLY DEPARTS
FROM EWING AND FROM THE PRINCIPLES OF JUDICIAL RESTRAINT AND RESPECT
FOR CONGRESSIONAL ENACTMENTS AND ADMINISTRATIVE AGENCIES WHICH HAVE TO
THIS DAY BEEN FUNDAMENTAL TO OUR JURISPRUDENCE.  THE COURT REFERS IN
PASSING TO THE INJUNCTIONS HERE AS "TRADITIONAL AVENUES OF JUDICIAL
RELIEF."  BUT THERE IS NOTHING "TRADITIONAL" ABOUT THE COURTS PROVIDING
INJUNCTIVE RELIEF AGAINST AGENCY ACTION IN SITUATIONS WHERE THE
CONGRESS HAS PRESCRIBED ANOTHER AVENUE WHICH IS AVAILABLE TO THE
PLAINTIFFS.  ELOQUENT TESTIMONY OF THIS IS THE PAUCITY OF PERTINENT
PRECEDENTS. 

THE THREE DECISIONS OF THIS COURT PRINCIPALLY RELIED UPON BY THE
MAJORITY HERE ARE PRIMARILY NOTEWORTHY FOR THEIR DIFFERENCE RATHER THAN
THEIR ANALOGY.  IN EACH OF THEM THE PARTICULAR STATUTORY SCHEME
INVOLVED EXPRESSLY PROVIDED FOR THE JURISDICTION OF THE COURT IN WHICH
THE SUIT WAS BROUGHT.  IN NONE OF THEM IS THE ACTION MAINTAINED DESPITE
CONGRESSIONAL PROVISION OF ANOTHER AND DIFFERENT REMEDY. 

COLUMBIA BORADCASTING SYSTEM V. UNITED STATES, 316 U.S. 407 (1942),
CONCERNED A REGULATION PROMULGATED BY THE FCC WHICH WOULD HAVE REFUSED
A LICENSE TO ANY STATION WHICH ENTERED INTO DEFINED TYPES OF NETWORK
CONTRACTS.  CBS, A NETWORK AND NOT A STATION LICENSEE, BROUGHT AN
ACTION TO ENJOIN ENFORCEMENT OF THE REGULATION, CLAIMING THAT IT WAS
BEYOND THE COMMISSION'S POWER.  THE ACTION WAS BROUGHT UNDER SEC 402(A)
OF THE COMMUNICATIONS ACT ITSELF (48 STAT. 1093) WHICH MAKES APPLICABLE
THE PROVISIONS OF THE URGENT DEFICIENCIES ACT TO "SUITS TO ENFORCE,
ENJOIN," ETC., ANY ORDER OF THE COMMISSION WITH CERTAIN EXCEPTIONS NOT
HERE RELEVANT.  THUS, THE STATUTE ITSELF PROVIDED FOR INJUNCTIVE ACTION
AGAINST ORDERS OF THE COMMISSION.  THE ONLY PROBLEM IN THE CASE WAS
WHETHER THE PARTICULAR ORDER WAS "REVIEWABLE" AT ALL ON SUIT OF CBS
AND, IF SO, WHETHER THE ACTION WAS PREMATURE - NOT WHETHER THE COURTS
MIGHT, CONSISTENTLY WITH THE CONGRESSIONAL SCHEME, ENTERTAIN SUIT FOR
INJUNCTION IN PROPER CIRCUMSTANCES, BECAUSE THAT WAS SETTLED BY
SPECIFIC PROVISIONS IN THE ACT.  THE COURT HELD THAT THE ACTION COULD
BE MAINTAINED.  AND IT HELD THAT CBS HAD NO ADEQUATE ALTERNATIVE
REMEDY.  AT MOST, CBS COULD HAVE INTERVENED IN A PROCEEDING CONTROLLED
BY A STATION APPLYING FOR A LICENSE - IF THERE WERE SUCH A PROCEEDING. 
(FN16)  THE COURT THEREFORE HELD THAT CBS COULD CHALLENGE THE
REGULATION BEFORE IT WAS INVOKED AGAINST A LICENSEE.  THIS IS A FAR CRY
FROM THE PRESENT CASES IN WHICH DESPITE THE ABSENCE OF STATUTORY
AUTHORIZATION OF DISTRICT COURT JURISDICTION OVER THE INJUNCTIVE
PROCEDURE, AND IN FACE OF THE REGULATORY DESIGN, THE MANUFACTURERS SEEK
TO INVOKE THE COURTS' GENERAL EQUITY POWER TO OVERRIDE WHAT APPEARS TO
BE THE STUDIED AND DELIBERATE INTENTION OF THE CONGRESS.    IN UNITED
STATES V. STORER BROADCASTING CO., 351 U.S. 192 (1956), THE FCC
PROMULGATED A RULE LIMITING TO FIVE THE NUMBER OF TELEVISION STATIONS
WHICH WOULD BE LICENSED TO A SINGLE PERSON.  THE SAME DAY IT DENIED, ON
THE BASIS OF THE RULE, AN APPLICATION BY STORER, WHICH OWNED FIVE
STATIONS, FOR AN ADDITIONAL STATION.  STORER APPEALED, NOT TO THE
DISTRICT COURT, BUT TO THE COURT OF APPEALS, FOR REVIEW OF THE
COMMISSION'S RULEMAKING ORDER.  THE COURT OF APPEALS HAD JURISDICTION
BY SPECIFIC STATUTORY PROVISION TO ENTERTAIN PETITIONS TO REVIEW FINAL
ORDERS OF THE COMMISSION UPON APPLICATION OF "ANY PARTY AGGRIEVED."  64
STAT 1130, 5 U.S.C. SEC 1034.  THIS COURT HELD THAT STORER HAD STANDING
TO MAINTAIN THE PETITION FOR REVIEW, THAT THE RULE WAS A "FINAL ORDER"
FOR REVIEW PURPOSES AND THAT THE CONTROVERSY WITH RESPECT TO THE
LIMITATION RULE WAS "RIPE" FOR REVIEW.  AGAIN, THE IMPORTANT POINT TO
NOTE IS THAT THE CASE DID NOT INVOLVE THE ASSERTION OF DISTRICT COURT
JURISDICTION IN THE ABSENCE OF STATUTE, OR THE OVERRIDING OF
ADMINISTRATIVE DESIGN OR CONGRESSIONAL INTENT.  STORER UTILIZED A
PROCEDURE EXPRESSLY MADE AVAILABLE BY THE STATUTE.  IT SOUGHT REVIEW IN
THE COURT OF APPEALS WHERE THE COMMISSION ACTION WAS REVIEWED ON THIS
BASIS SPECIFIED BY STATUTE, INCLUDING THE WEIGHT GIVEN TO THE AGENCY
FINDINGS AND RECORD.  IT DID NOT COMMENCE A SEPARATE ACTION, NOT
PROVIDED FOR IN THE STATUTE, IN WHICH THE DISTRICT COURT'S ORIGINAL
JURISDICTION WAS INVOKED.  STORER, IN BRIEF, INVOLVES AN ACTION
PURSUANT TO THE STATUTE, AND NOT IN CONFLICT WITH ITS PLAN AS IS TRUE
OF THE PRESENT CASES. 

THE THIRD CASE IS FROZEN FOOD EXPRESS V. UNITED STATES, 351 U.S. 40
(1956).  THE ICC ISSUED AN ORDER, AFTER INVESTIGATION AND HEARING,
LISTING COMMODITIES WHICH IT FOUND NOT TO BE "AGRICULTURAL" FOR
PURPOSES OF AN EXEMPTION FROM THE REQUIREMENT OF OBTAINING A
CERTIFICATE OF CONVENIENCE AND NECESSITY UNDER THE INTERSTATE COMMERCE
ACT.  A MOTOR CARRIER SUED IN THE UNITED STATES DISTRICT COURT TO
ENJOIN AND SET ASIDE THE COMMISSION'S ORDER.  THE STATUTE UNDER WHICH
THE SUIT WAS BROUGHT EXPRESSLY GIVES THE DISTRICT COURTS JURISDICTION
TO ENJOIN, ETC., "ANY ORDER OF THE INTERSTATE COMMERCE COMMISSION."  28
U.S.C. SEC 1336.  ACCORDINGLY, HERE, TOO, THERE WAS NO QUESTION OF THE
COURTS FURNISHING A FORUM WHICH THE REGULATORY STATUTE DID NOT
PROVIDE.  THIS CASE, LIKE COLUMBIA BROADCASTING AND STORER, SUPRA,
THEREFORE, DOES NOT TOUCH THE KEY PROBLEM OF THE INSTANT CASES.  IT IS
RELEVANT ONLY ON THE ISSUE OF "RIPENESS" - AN INTENSELY PARTICULARIZED
INQUIRY INVOLVING CONSIDERATIONS WHICH, AS I SHALL DISCUSS, SHOULD LEAD
TO REJECTION OF THE INSTANT ACTIONS.  (FN17) 

CONSIDERING THE IMPACT OF THESE THREE CASES ON THE PROBLEM OF
"RIPENESS" IN THE INSTANT CASES, I FIRST NOTE THAT EACH OF THESE THREE
CASES IS, IN EFFECT, TWO-DIMENSIONAL.  THE MEANING, EFFECT, AND IMPACT
OF THE ACCUSED RULE OR DECISION ARE CLEAR, SIMPLE, AND OBVIOUS.  NONE
IS PART OF THE WARP AND WOOF OF AN ELABORATE ADMINISTRATIVE PATTERN,
INTIMATELY WOVEN INTO THE CONGRESSIONAL DESIGN.  NONE OF THEM IS APT TO
TAKE DIFFERENT SHAPE OR TO BE MODIFIED BY PRACTICAL ADMINISTRATIVE
ACTION.  NONE OF THEM IS SUBJECT TO THE GIVE-AND-TAKE OF THE
ADMINISTRATIVE PROCESS AS IT WORKS, FOR EXAMPLE, IN THE REALITIES OF
THE COMPLEX WORLD OF FOOD, DRUG, AND COSMETIC REGULATION.  NONE OF THEM
IS SUBJECT TO EXCEPTION UPON APPLICATION.  NONE OF THEM DEPENDS UPON
THE INDEPENDENT JUDGMENT OF THE ATTORNEY GENERAL FOR ENFORCEMENT. 
THESE ARE STARK, SIMPLE, TWO-DIMENSIONAL REGULATIONS WHICH DO NOT
DEPEND UPON THE SPECIFICS OF A PARTICULAR SITUATION FOR JUDGMENT AS TO
THEIR CONSONANCE WITH STATUTORY AUTHORITY NOR ARE THEY SUBJECT TO
CHANGE IN THE PROCESS OF ADMINISTRATIVE APPLICATION.  IN SHORT, IN THE
THREE CASES THE COURTS PROCEEDED WITHIN THE PROCEDURAL FRAMEWORK
ENACTED BY CONGRESS, AND THE CIRCUMSTANCES WERE SUCH THAT THE COURTS
COULD MAKE A SENSIBLE, REALISTIC JUDGMENT AS TO WHETHER THE
ADMINISTRATIVE RULE MATCHED THE STATUTORY AUTHORITY.  (FN18)  THESE
FACTORS ARE ENTIRELY ABSENT IN THE PRESENT CASES.  ANALYSIS OF THE
REGULATIONS IN THE PRESENT CASES WILL, I BELIEVE, DEMONSTRATE THE
POINT. 

IN NO. 336 (INVOLVING THE REGULATION REQUIRING "FREE ACCESS" TO
PLANTS, PROCESSES, AND FORMULAE WITH RESPECT TO ALL "COLOR ADDITIVES")
THE COURT CONCLUDES "THAT THE LEGAL ISSUE AS PRESENTLY FRAMED IS NOT
APPROPRIATE FOR JUDICIAL RESOLUTION."  IT BASES ITS CONCLUSION UPON TWO
FACTORS: (1) THAT THE SECRETARY MAY OR MAY NOT ORDER INSPECTION, AND,
IF DENIED ACCESS, HE MAY OR MAY NOT DECIDE TO USE THE AUTHORITY OF THE
REGULATION TO WITHDRAW OR SUSPEND CERTIFICATION WITHOUT WHICH THE
MANUFACTURER MAY NOT CONTINUE HIS BUSINESS IN THE PRODUCTS; AND (2)
THAT JUDGMENT AS TO WHETHER THE REGULATION IS AUTHORIZED DEPENDS UPON
AN UNDERSTANDING OF THE TYPES OF ENFORCEMENT PROBLEMS ENCOUNTERED BY
FDA, THE NEED FOR SUPERVISION AND THE SAFEGUARDS DEVISED TO PROTECT
LEGITIMATE TRADE SECRETS.  THE COURT ALSO SAYS THAT IT IS AN ADEQUATE
REMEDY FOR THE MANUFACTURER TO DEFER CHALLENGE UNTIL AFTER ACCESS IS
DEMANDED AND DENIED AND FURTHER CERTIFICATION SERVICES BY THE AGENCY
ARE SUSPENDED.  THE SUSPENSION OF CERTIFICATION SERVICES MEANS A
SHUTDOWN, AT LEAST PRO TANTO, BUT THE COURT SAYS, WITH AN OPTIMISM
WHICH IS PROBABLY NOT SHARED BY THE INDUSTRY, THAT "PROMPT" CHALLENGE
THROUGH ADMINISTRATIVE PROCEDURE AND COURT REVIEW CAN THEN BE HAD. 

PRECISELY THE SAME CONSIDERATIONS DEMONSTRATE, I SUBMIT, THAT THE
REGULATIONS IN NO. 39 AND NO. 438 SHOULD SIMILARLY BE IMMUNE FROM
ATTACK IN THESE SUITS.  IN NO. 438, THE ACCUSED REGULATIONS WERE ALSO
ISSUED UNDER SEC 701(A), THE GENERAL POWER TO PROMULGATE REGULATIONS
FOR THE EFFICIENT ADMINISTRATION OF THE ACT, SPECIFICALLY THE 1960
AMENDMENTS TO PROMOTE "SAFETY-IN-USE" OF COLOR ADDITIVES.  AS THE COURT
STATES, BY THE REGULATIONS IN NO. 438 THE COMMISSIONER "AMPLIFIED THE
STATUTORY DEFINITION" OF COLOR ADDITIVES TO INCLUDE DILUENTS AND
CERTAIN COSMETICS AND HAIR DYES.  BY PROVISIONS IN THE STATUTE, 74
STAT. 399, 21 U.S.C.  SEC 376(A)(1)(A), A PRODUCT CONTAINING A "COLOR
ADDITIVE" SHALL BE DEEMED "ADULTERATED" UNLESS THE COLOR ADDITIVE AND
ITS PROPOSED USE HAVE BEEN SUBMITTED TO FDA, TESTED AND LISTED IN AN
FDA REGULATION AS SAFE AND UNLESS THE PARTICULAR ADDITIVE COMES FROM A
CERTIFIED BATCH, OR HAS BEEN EXEMPTED FROM CERTIFICATION.  DISTRIBUTION
OF A PRODUCT WITHOUT COMPLIANCE RUNS THE RISK OF SEIZURE, INJUNCTION,
OR CRIMINAL PROSECUTION UPON ACTION OF THE ATTORNEY GENERAL.  AGAIN,
THERE IS NO QUESTION THAT THE COMMISSIONER COULD REFINE AND "AMPLIFY"
THE DEFINITION OF "COLOR ADDITIVES."  THE ARGUMENT IS WHETHER HE COULD
DO IT IN THIS PARTICULAR WAY, TO INCLUDE THESE PARTICULAR ITEMS. 

NOW, WITH ALL RESPECT, I SUBMIT THAT THIS CONTROVERSY IS CLEARLY,
TRANSPARENTLY AND OBVIOUSLY UNSUITED TO ADJUDICATION BY THE COURTS IN
LIMINE OR DIVORCED FROM A PARTICULAR CONTROVERSY.  EVERY REASON
ADVANCED IN NO. 336 (THE "ACCESS" REGULATION) IS APPLICABLE HERE WITH
EQUAL OR GREATER FORCE TO REPEL THIS EFFORT TO SECURE JUDICIAL REVIEW
AT THIS STAGE.  (1) IN NO. 336, THE COURT POINTED OUT THAT THE
COMMISSIONER MIGHT OR MIGHT NOT DEMAND ACCESS AND WITHDRAW
CERTIFICATION IN A PARTICULAR CASE.  SIMILARLY, IN THE PRESENT CASE IT
IS IMPOSSIBLE TO ASCERTAIN AT THIS STAGE HOW AND WHETHER IN A
PARTICULAR SITUATION THE REGULATION WILL APPLY TO THAT SITUATION. 
FIRST AND MOST OBVIOUS IS THE FACT THAT ANY MANUFACTURER MAY APPLY FOR
AN EXEMPTION FROM THE REGULATION IF, AS APPLIED TO HIS PARTICULAR
SITUATION, IT IS UNFAIR OR UNDULY BURDENSOME OR - MORE SIGNIFICANTLY -
IF IT FALLS OUTSIDE OF THE STATUTORY INTENDMENT.  AND EVEN MORE THAN IN
THE CASE OF THE ACCESS REGULATION, THE DEFINITIONAL REGULATION IS NOT
SELF-ENFORCING.  INDEED, IN RESPECT OF THE ACCESS REGULATION THE
COMMISSIONER MAY RESORT TO A MEASURE OF SELF-HELP BY WITHHOLDING
CERTIFICATION SERVICES, WHEREAS IF THE FDA WISHES TO TAKE ACTION
AGAINST A MANUFACTURER WHO REFUSES TO SUBMIT A "COLOR ADDITIVE" TO THE
AGENCY ON THE GROUND THAT IT IS NOT COVERED, THE AGENCY MUST INSTITUTE
AN INDEPENDENT PROCEEDING IN COURT WHICH IT CAN DO ONLY IF THE ATTORNEY
GENERAL AGREES WITH ITS CONCLUSIONS. 

(2)  IN NO. 336, THE COURT WAS INFLUENCED BY THE OBVIOUS FACT THAT
ADJUDICATION OF THE LEGALITY OF THE ACCESS REGULATION REQUIRES AN
UNDERSTANDING OF THE ENFORCEMENT PROBLEMS OF THE AGENCY AND THE ACTUAL
NEEDS FOR SUPERVISION.  I AGREE.  BUT I RESPECTFULLY SUGGEST THAT IF
THIS IS TRUE OF A SIMPLE INVESTIGATORY AND ENFORCEMENT REGULATION LIKE
THAT REQUIRING ACCESS TO PLANTS AND PROCESSES, IT IS MUCH MORE
COMPELLING IN RESPECT OF A COMPLEX REGULATION DEFINING "COLOR
ADDITIVES."  HOW, FOR EXAMPLE, CAN A COURT POSSIBLY JUDGE WHETHER A
SUBSTANCE SHOULD BE INCLUDED IN THE DEFINITION OUTSIDE OF THE CONTEXT
OF A SPECIFIC CONTROVERSY AND IN THE ABSENCE OF DETAILED INFORMATION AS
TO THE AGENCY PROBLEM? 

THE COURT, HOWEVER, DESCRIBES THE ISSUE IN NO. 438 AS "A
STRAIGHTFORWARD LEGAL ONE: WHAT GENERAL CLASSIFICATIONS OF INGREDIENTS
FALL WITHIN THE COVERAGE OF THE COLOR ADDITIVE AMENDMENTS?"  THE COURT
SAYS THAT "THIS IS NOT A SITUATION IN WHICH CONSIDERATION OF THE
UNDERLYING LEGAL ISSUES WOULD NECESSARILY BE FACILITATED IF THEY WERE
RAISED IN THE CONTEXT OF A SPECIFIC ATTEMPT TO ENFORCE THE
REGULATIONS."  WITH ALL RESPECT, THESE STATEMENT ARE TOTALLY DIVORCED
FROM REALITY.  FOR EXAMPLE, THE STATUTE ITSELF INCLUDES WITHIN THE
DEFINITION OF A "COLOR ADDITIVE" ANY "OTHER SUBSTANCE" WHICH "WHEN
ADDED OR APPLIED TO A FOOD, DRUG, OR COSMETIC, OR TO THE HUMAN BODY OR
ANY PART THEREOF, IS CAPABLE (ALONE OR THROUGH REACTION WITH ANOTHER
SUBSTANCE) OF IMPARTING COLOR THERETO."  SEC 201(T)(1), 74 STAT. 397,
21 U.S.C. SEC 321(T)(1).  CAN IT BE SERIOUSLY CONTENDED THAT THE
QUESTION, FOR EXAMPLE, WHETHER A PARTICULAR DILUENT - SOLVENT OR
SUBSTANCE SERVING TO DILUTE - MEETS THIS DEFINITION IS "A
STRAIGHTFORWARD LEGAL ONE," DECISION OF WHICH WOULD NOT "NECESSARILY BE
FACILITATED" IF RAISED IN SPECIFIC CONTEXT?  I NOTE THAT THE COURT
RECOGNIZES THE FRAILTY OF ITS PRONOUNCEMENT IN A FOOTNOTE IN WHICH IT
SAYS THAT "IF IN THE COURSE OF FURTHER PROCEEDINGS THE DISTRICT COURT
IS PERSUADED THAT TECHNICAL QUESTIONS ARE RAISED THAT REQUIRE A MORE
CONCRETE SETTING FOR PROPER ADJUDICATION, A DIFFERENT ISSUE WILL BE
PRESENTED"]  BUT I SUBMIT, WITH RESPECT, THAT THIS QUESTION WHICH, EVEN
STANDING ALONE, WOULD DICTATE OUR REJECTION OF THE ACTION IN NO. 438,
CAN AND MUST BE FACED, HERE AND NOW; AND THE ANSWER TO IT IS CLEAR AND
OBVIOUS.  IT IS CLEAR BEYOND QUESTION, MERELY ON THE BASIS OF THE
NATURE OF THE AGENCY ACTION, THAT THESE REGULATIONS ON THEIR FACE RAISE
QUESTIONS WHICH SHOULD NOT BE ADJUDICATED IN THE ABSTRACT AND IN THE
GENERAL, BUT WHICH REQUIRE A "CONCRETE SETTING" FOR DETERMINATION.  A
THRESHOLD INJUNCTION IS ENTIRELY UNSUITABLE IN THESE CIRCUMSTANCES.  IT
PLACES THE ADMINISTRATION OF A PUBLIC-SAFETY STATUTE AT THE MERCY OF
COUNSEL'S ABILITY TO MARSHALL AND DEPLOY HORRIBLE EXAMPLES WHICH LOGIC
MAY ACCOMMODATE, BUT THE REALITY OF ADMINISTRATION WOULD REPEL.  OUR
TRAINING AS LAWYERS AND JUDGES, OUR RESPECT FOR THE ADMINISTRATIVE
PROCESS, AND OUR AWARENESS OF THE COMPLEXITIES OF LIFE SHOULD WARN US
NOT TO FALL INTO THE TRAP OF ABSTRACT, GENERALIZED, GROSS REVIEW. 

THE REGULATION IN NO. 39 RELATES TO A 1962 AMENDMENT TO THE ACT
REQUIRING MANUFACTURERS OF PRESCRIPTION DRUGS TO PRINT ON THE LABELS OR
OTHER PRINTED MATERIAL, THE "ESTABLISHED NAME" OF THE DRUG "PROMINENTLY
AND IN TYPE AT LEAST HALF AS LARGE AS THAT USED THEREON FOR ANY
PROPRIETARY NAME OR DESIGNATION FOR SUCH DRUG."  SEC 502(E)(1), 76
STAT. 790, 21 U.S.C.  SEC 352(E)(1).  OBVIOUSLY, THIS REQUIRES SOME
ELUCIDATION, EITHER CASE-BY-CASE OR BY GENERAL REGULATION OR
PRONOUNCEMENT, BECAUSE THE STATUTE DOES NOT SAY THAT THIS MUST BE DONE
"EVERY TIME," OR ONLY ONCE ON EACH LABEL OR IN EACH PAMPHLET, OR ONCE
PER PANEL, ETC., OR THAT IT MUST BE DONE DIFFERENTLY ON LABELS THAN ON
CIRCULARS, OR DOCTOR'S LITERATURE THAN ON DIRECTIONS TO THE PATIENTS,
ETC.  THIS IS EXACTLY THE TRADITIONAL PURPOSE AND FUNCTION OF AN
ADMINISTRATIVE AGENCY.  THE COMMISSIONER, ACTING BY DELEGATION FROM THE
SECRETARY, TOOK STEPS TO PROVIDE FOR THE SPECIFICATION.  HE INVITED AND
CONSIDERED COMMENTS AND THEN ISSUED A REGULATION REQUIRING THAT THE
"ESTABLISHED NAME" APPEAR EVERY TIME THE PROPRIETARY NAME IS USED.  A
MANUFACTURER - OR OTHER PERSON WHO VIOLATES THIS REGULATION - HAS
MISLABELED HIS PRODUCT.  THE PRODUCT MAY BE SEIZED; OR INJUNCTION MAY
BE SOUGHT; OR THE MISLABELER MAY BE CRIMINALLY PROSECUTED.  IN ANY OF
THESE ACTIONS HE MAY CHALLENGE THE REGULATION AND OBTAIN A JUDICIAL
DETERMINATION. 

THE COURT, HOWEVER, MOVED BY PETITIONERS' CLAIMS AS TO THE EXPENSE
AND INCONVENIENCE OF COMPLIANCE AND THE RISKS OF DEFERRING CHALLENGE BY
NONCOMPLIANCE, DECREES THAT THE MANUFACTURERS MAY HAVE THEIR SUIT FOR
INJUNCTION AT THIS TIME AND REVERSES THE THIRD CIRCUIT.  THE COURT SAYS
THAT THIS CONFRONTS THE MANUFACTURER WITH A "REAL DILEMMA."  BUT THE
FACT OF THE MATTER IS THAT THE DILEMMA IS NO MORE THAN CITIZENS FACE IN
CONNECTION WITH COUNTLESS STATUTES AND WITH THE RULES OF THE SEC, FTC,
FCC, ICC, AND OTHER REGULATORY AGENCIES.  THIS HAS NOT HERETOFORE BEEN
REGARDED AS A BASIS FOR INJUNCTIVE RELIEF UNLESS CONGRESS HAS SO
PROVIDED.  THE OVERRIDING FACT HERE IS - OR SHOULD BE - THAT THE PUBLIC
INTEREST IN AVOIDNG THE DELAY IN IMPLEMENTING CONGRESS' PROGRAM FAR
OUTWEIGHS THE PRIVATE INTEREST; AND THAT THE PRIVATE INTEREST, WHICH
HAS SO IMPRESSED THE COURT IS NO MORE THAN THAT WHICH EXISTS IN RESPECT
OF MOST REGULATORY STATUTES OR AGENCY RULES.  SOMEHOW, THE COURT HAS
CONCLUDED THAT THE DAMAGE TO PETITIONERS IF THEY HAVE TO ENGAGE IN THE
REQUIRED REDESIGN AND REPRINT OF THEIR LABELS AND PRINTED MATERIALS
WITHOUT THRESHOLD REVIEW OUTWEIGHS THE DAMAGE TO THE PUBLIC OF
DEFERRING DURING THE TEDIOUS MONTHS AND YEARS OF LITIGATION A CURE FOR
THE POSSIBLE DANGER AND ASSERTED DECEIT OF PEDDLING PLAIN MEDICINE
UNDER FANCY TRADEMARKS AND FOR FANCY PRICES WHICH, RIGHTLY OR WRONGLY,
IMPELLED THE CONGRESS TO ENACT THIS LEGISLATION.  I SUBMIT THAT A MUCH
STRONGER SHOWING IS NECESSARY THAN THE EXPENSE AND TROUBLE OF
COMPLIANCE AND THE RISK OF DEFIANCE.  ACTUALLY, IF THE COURT REFUSED TO
PERMIT THIS SHOTGUN ASSAULT, EXPERIENCE AND REASONABLY SOPHISTICATED
COMMON SENSE SHOW THAT THERE WOULD BE ORDERLY COMPLIANCE WITHOUT THE
DISASTER SO DRAMATICALLY PREDICTED BY THE INDUSTRY, REASONABLE
ADJUSTMENTS BY THE AGENCY IN REAL HARDSHIP CASES, AND WHERE EXTREME
INTRANSIGENCE INVOLVING SUBSTANTIAL VIOLATIONS OCCURRED, ENFORCEMENT
ACTIONS IN WHICH LEGALITY OF THE REGULATION WOULD BE TESTED IN
SPECIFIC, CONCRETE SITUATIONS.  I RESPECTFULLY SUBMIT THAT THIS WOULD
BE THE CORRECT AND APPROPRIATE RESULT.  OUR REFUSAL TO RESPOND TO THE
VASTLY OVERDRAWN CRIES OF DISTRESS WOULD REFLECT NOT ONLY HEALTHY
SKEPTICISM, BUT OUR REGARD FOR A PROPER RELATIONSHIP BETWEEN THE COURTS
ON THE ONE HAND AND CONGRESS AND THE ADMINISTRATIVE AGENCIES ON THE
OTHER.  IT WOULD REPRESENT A REASONABLE SOLICITUDE FOR THE PURPOSES AND
PROGRAMS OF THE CONGRESS.  AND IT WOULD REFLECT APPROPRIATE MODESTY AS
TO THE COMPETENCE OF THE COURTS.  THE COURTS CANNOT PROPERLY - AND
SHOULD NOT - ATTEMPT TO JUDGE IN THE ABSTRACT AND GENERALLY WHETHER
THIS REGULATION IS WITHIN THE STATUTORY SCHEME.  JUDGMENT AS TO THE
"EVERY TIME" REGULATION SHOULD BE MADE ONLY IN LIGHT OF SPECIFIC
SITUATIONS, AND IT MAY DIFFER DEPENDING UPON WHETHER THE FDA SEEKS TO
ENFORCE IT AS TO DOCTORS' CIRCULARS, PAMPHLETS FOR PATIENTS, LABELS,
ETC. 

I SUBMIT, THEREFORE, THAT THIS INVITATION TO THE COURTS TO RULE UPON
THE LEGALITY OF THESE REGULATIONS IN THESE ACTIONS FOR INJUNCTION AND
DECLARATORY RELIEF SHOULD BE FIRMLY REJECTED.  THERE IS NOTHING HERE
APPRAOCHING THE STRINGENT SHOWING THAT SHOULD BE REQUIRED BEFORE THE
COURTS WILL UNDERTAKE TO PROVIDE A REMEDY THAT CONGRESS HAS NOT
AUTHORIZED BUT WHICH, ON THE CONTRARY, IT HAS DELIBERATELY DECLINED TO
AFFORD.  THOSE CHALLENGING THE REGULATIONS HAVE A REMEDY AND THERE ARE
NO SPECIAL REASONS TO RELIEVE THEM OF THE NECESSITY OF DEFERRING THEIR
CHALLENGE TO THE REGULATIONS UNTIL ENFORCEMENT IS UNDERTAKEN.  IN THIS
WAY, AND ONLY IN THIS WAY, WILL THE ADMINISTRATIVE PROCESS HAVE AN
OPPORTUNITY TO FUNCTION - TO IRON OUT DIFFERENCES, TO ACCOMMODATE
SPECIAL PROBLEMS, TO GRANT EXEMPTIONS, ETC.  THE COURTS DO NOT AND
SHOULD NOT PASS ON THESE COMPLEX PROBLEMS IN THE ABSTRACT AND THE
GENERAL - BECAUSE THESE REGULATIONS PECULIARLY DEPEND FOR THEIR QUALITY
AND SUBSTANCE UPON THE FACTS OF PARTICULAR SITUATIONS.  WE SHOULD
CONFINE OURSELVES - AS OUR JURISPRUDENCE DICTATES - TO ACTUAL,
SPECIFIC, PARTICULARIZED CASES AND CONTROVERSIES, IN SUBSTANCE AS WELL
AS IN TECHNICAL ANALYSIS.  AND WE SHOULD REPEL THESE ATTACKS, FOR WE
HAVE NO WARRANT AND NO REASON TO PLACE THESE PROGRAMS, ESSENTIAL TO THE
PUBLIC INTEREST, AND MANY OTHERS WHICH THIS COURT'S ACTION TODAY WILL
AFFECT, AT THE PERIL OF DISRUPTION BY INJUNCTIVE ORDERS WHICH CAN BE
ISSUED BY A SINGLE DISTRICT JUDGE.  IN SHORT, THE PARTIES HAVE AN
"ADEQUATE REMEDY" TO TEST THE REGULATIONS; THESE CONTROVERSIES ARE NOT
"RIPE" FOR JUDICIAL DECISION; AND IT IS NOT APPROPRIATE THAT THE COURTS
SHOULD RESPOND TO THE CALL FOR THIS PRIVATE RELIEF AT DISPROPORTIONATE
BURDEN TO THE PUBLIC INTEREST.  WITH ALL RESPECT, WE SHOULD REFUSE TO
ACCEPT THE INVITATION TO ABANDON THE TRADITIONAL INSISTENCE OF THE
COURTS UPON SPECIFIC, CONCRETE FACTS, AND INSTEAD ENTERTAIN THIS
MASSIVE ONSLAUGHT IN WHICH IT WILL BE UTTERLY IMPOSSIBLE TO MAKE THE
KIND OF DISCRETE JUDGMENTS WHICH ARE WITHIN JUDICIAL COMPETENCE.  WITH
ALL RESPECT, WE SHOULD NOT PERMIT THE ADMINISTRATION OF A LAW OF THE
CONGRESS TO BE DISRUPTED BY THIS NONADJUDICABLE MASS ASSAULT. 

FN1  5 U.S.C. SECS 701-704 (1964 ED., SUPP. II). 

FN2  SEE ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 84
(1936)(CONCURRING OPINION OF MR. JUSTICE BRANDEIS).  HART & WECHSLER,
THE FEDERAL COURTS AND THE FEDERAL SYSTEM 312-340 (1953).  COMPARE, 4
DAVIS ADMINISTRATIVE LAW TREATISE SEC 28.18 (1958). 

FN3  SEE EWING V. MYTINGER & CASSELBERRY, 339 U.S. 594, 601 (1950). 

FN4  21 U.S.C. SEC 371(E) REFERS ONLY TO REGULATIONS UNDER SEC 401, 52
STAT. 1046, AS AMENDED, 21 U.S.C. SEC. 341 (IDENTITY AND QUALITY
STANDARDS FOR FOOD), SEC. 403(J), 52 STAT.  1048, AS AMENDED, 21 U.S.C.
SEC. 343(J)(MISBRANDED FOOD PURPORTING TO SERVE SPECIAL DIETARY
PURPOSES), SEC. 404(A), 52 STAT. 1048, AS AMENDED, 21 U.S.C. SEC.
344(A)(CONDITIONS IMPOSED ON MANUFACTURE OF FOOD AS THE RESULT OF
HEALTH REQUIREMENTS), SEC 406, 52 STAT. 1049, AS AMENDED, 21 U.S.C. SEC
346 (TOLERANCES FOR PESTICIDES), SEC 501(B), 52 STAT. 1049, AS AMENDED,
21 U.S.C. SEC. 351(B)(DEVIATIONS FROM STRENGTH, QUALITY, OR PURITY
STANDARDS, FOR DRUGS), SEC. 502(D), 52 STAT. 1050, AS AMENDED, 21
U.S.C. SEC. 352(D)(WARNINGS WITH RESPECT TO HABIT-FORMING DRUGS), AND
SEC. 502(H), 52 STAT. 1051, AS AMENDED, 21 U.S.C. SEC. 352(H)(PACKING
AND LABELING OF DETERIORATIVE DRUGS).  IN ADDITION, PARTICULAR SECTIONS
EXPRESSLY INCORPORATE THE SEC 371(F) AND (G) PROCEDURES: SEC 506, 55
STAT. 851, AS AMENDED, 21 U.S.C. SEC 356 (CERTAIN PORTIONS OF
REGULATIONS PERTAINING TO CERTIFICATION OF DRUGS CONTAINING INSULIN),
SEC 507, 59 STAT. 463, AS AMENDED, 21 U.S.C. SEC 357 (WITH RESPECT TO
REGULATIONS DEALING WITH ANTIBIOTIC DRUGS).  FINALLY, SEC. 505(H), 52
STAT. 1053, AS AMENDED, 21 U.S.C. SEC. 355(H) PROVIDES THAT DENIALS OF
CERTIFICATION FOR NEW DRUGS MAY BE REVIEWED IN THE COURTS OF APPEALS. 

FN5  THE SAVING CLAUSE, SUBDIVISION (6) OF SUBSECTION (F),
SPECIFICALLY AND CAREFULLY REFERS TO THE "REMEDIES PROVIDED FOR IN THIS
SUBSECTION."  ITS WORDING AND PLACEMENT WOULD BE ANOMALOUS IF THE
SAVING CLAUSE WERE INTENDED TO HAVE GENERAL APPLICABILITY.  THE
LEGISLATIVE HISTORY OF THE SAVING CLAUSE, AND PARTICULARLY THE FAILURE
OF MORE BROADLY CONCEIVED PROVISIONS TO OBTAIN ACCEPTANCE BY THE
CONGRESS, CORROBORATES THE EVIDENCE OF THE CLAUSE'S ULTIMATE LANGUAGE
AND POSITION THAT IT WAS TO HAVE RESTRICTED APPLICATION.  SEE DUNN,
FEDERAL FOOD, DRUG, AND COSMETIC ACT, A STATEMENT OF ITS LEGISLATIVE
RECORD 184, 225, 609-610 (1938)(HEREINAFTER CITED AS DUNN). 

CONTRARY TO THE MAJORITY'S CONTENTION, THE REASON FOR THE CLAUSE AND
FOR ITS LOCATION IN SUBSECTION (F) IS CLEAR AND COMMON-SENSICAL.  IT
WAS INTENDED TO SAVE THE REMEDIES OF INJUNCTION AND DECLARATORY
JUDGMENT WHERE THE AGENCY PROMULGATED A SUBSECTION (E) REGULATION
WITHOUT THE HEARINGS AND FINDINGS NEEDED TO PERMIT REVIEW IN THE COURT
OF APPEALS.  IN SHORT, AS ITS PLACEMENT INDICATES, IT WAS INTENDED TO
COMPLETE THE SCHEME OF PRE-EFFECTIVENESS REVIEW AS TO THOSE CAREFULLY
ENUMERATED REGULATIONS WITH RESPECT TO WHICH CONGRESS DEEMED PRE
ENFORCEMENT REVIEW TO BE ADVISABLE.  IT HAS NO BROADER APPLICATION. 

IT WILL COME AS A SHOCK TO THE AGENCY, CONGRESS, AND PRACTITIONERS,
THAT FOR ALMOST 30 YEARS, THIS UNDETECTED, OMNIBUS "SAVING CLAUSE" HAS
SLUMBERED IN THE ACT.. 

FN6  SECTION 23 OF S. 2800, INTRODUCED IN THE 73D CONG., 2D SESS.
(1934), FOR EXAMPLE, WAS SUCH A PROVISION AND WAS EXPRESSLY DISCUSSED
ON THE FLOOR OF THE SENATE.  78 CONG. REC.  8958-8959 (1934); DUNN 157
159.  A SUCCESSOR BILL, S. 5, 74TH CONG., 1ST SESS. (1935), CONTAINED A
SIMILAR PROVISION, SEC 702, AND WAS APPROVED BY THE SENATE.  79 CONG.
REC.  8356 (1935).  SEE DUNN 330-331, 510. 

FN7  H.R. REP. NO. 2139, 75TH CONG., 3D SESS. (1938). 

FN8  ID., PT. II (MINORITY STATEMENT). 

FN9  H.R. CONF. REP. NO. 2716, 75TH CONG., 3D SESS. (1938). 

FN10  THE "EVERY TIME" REGULATION WAS PUBLISHED ABOUT FOUR YEARS AGO,
ON JUNE 20, 1963, 28 FED REG. 6375.  AS A RESULT OF LITIGATION BEGUN IN
SEPTEMBER OF 1963, IT HAS NOT YET BEEN PUT INTO FORCE.  THE
"DEFINITION" REGULATIONS AND THE "ACCESS" REGULATION WITH RESPECT TO
COLOR ADDITIVES WERE PUBLISHED ON JUNE 22, 1963, 28 FED. REG. 6439,
6446.  LITIGATION WAS BEGUN IN NOVEMBER OF 1963, AND THE REGULATIONS
ARE NOT YET OPERATIVE. 

FN11  AS TO THE OTHER NONPERSONAL LIBERTY CASES CITED BY THE COURT:
IN SHIELDS V. UTAH IDAHO CENTRAL R. CO., 305 U.S. 177 (1938), THE
GOVERNMENT DID NOT OPPOSE RESORT TO THE INJUNCTION REMEDY, AND THE
COURT ENUMERATED SPECIAL CIRCUMSTANCES WHY THAT REMEDY WAS PECULIARLY
NEEDED.  ID., AT 183-184.  AND IN STARK V. WICKARD, 321 U.S. 288
(1944), THE COURT NOTED THAT THE AGGRIEVED PARTIES HAD NO OTHER FORUM
IN WHICH TO CONTEST THE ORDER IN QUESTION, AND IT FOUND "PLAIN"
EVIDENCE OF A CONGRESSIONAL INTENT TO ALLOW REVIEW. 

FN12  INDEED, CONGRESSMAN LEA, PRINCIPAL FLOOR MANAGER FOR THE BILL
WHICH BECAME THE 1938 ACT, TOLD HIS COLLEAGUES THAT THE REVIEW
PROVISIONS OF THE NEW BILL WERE NOT RETROACTIVE, AND THAT PRE-EXISTING
REGULATIONS WERE THEREFORE UNREVIEWABLE UNLESS RE-ENACTED.  83 CONG.
REC.  7776-7777 (1938). 

FN13  SEE JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 372. 

FN14  IN EWING, 339 U.S., AT 599, A CASE UNDER THE FEDERAL FOOD,
DRUG, AND COSMETIC ACT, THE COURT HELD "IT IS NOT A REQUIREMENT OF DUE
PROCESS THAT THERE BE JUDICIAL INQUIRY BEFORE DISCRETION CAN BE
EXERCISED.  IT IS SUFFICIENT, WHERE ONLY PROPERTY RIGHTS ARE CONCERNED,
THAT THERE IS AT SOME STAGE AN OPPORTUNITY FOR A HEARING AND A JUDICIAL
DETERMINATION.  PHILLIPS V. COMMISSIONER, 283 U.S. 589, 596-597; BOWLES
V. WILLINGHAM, 321 U.S. 503, 520; YAKUS V. UNITED STATES, 321 U.S. 414,
442-443." 

FN15  WHERE CONGRESS HAS CREATED A RIGHT BUT PROVIDED NO AVENUE FOR
JUDICIAL PROTECTION AGAINST ITS OBLITERATION, SUIT FOR INJUNCTIVE
RELIEF MAY BE AVAILABLE UNDER 28 U.S.C. SEC 1337, RELATING TO
PROCEEDINGS "ARISING UNDER ANY ACT OF CONGRESS REGULATING COMMERCE OR
PROTECTING TRADE AND COMMERCE AGAINST RESTRAINTS AND MONOPOLIES."  SEE
LEEDOM V. KYNE, 358 U.S. 184 (1958), WHERE THIS COURT AUTHORIZED SUIT
IN THE DISTRICT COURTS TO SET ASIDE AN NLRB CERTIFICATION OF A
BARGAINING UNIT IN WHICH THE BOARD HAD INCLUDED BOTH SUPERVISORY AND
NONSUPERVISORY PERSONNEL - CONCEDEDLY WITHOUT AUTHORITY OF STATUTE. 
BUT CF. SWITCHMEN'S UNION V. BOARD, 320 U.S. 297 (1943). 

FN16  AS A LEADING COMMENTATOR HAS NOTED, THE BASIC ISSUE WAS THAT OF
CBS' STANDING.  JAFFE, OP. CIT. SUPRA, AT 394. 

FN17  MR. JUSTICE HARLAN DISSENTED IN FROZEN FOOD EXPRESS ON THE
GROUND THAT "THE CASE FALLS SQUARELY WITHIN THOSE CAREFULLY DEVELOPED
RULES WHICH REQUIRE THAT JUDICIAL INTERVENTION BE WITHHELD UNTIL
ADMINISTRATIVE ACTION HAS REACHED ITS COMPLETE DEVELOPMENT."  351 U.S.,
AT 45. 

FN18  ALTHOUGH FROZEN FOOD EXPRESS INVOLVED PROBLEMS OF DEFINITION,
THEY WERE NOT COMPARABLE TO THE COMPLEX, SUBTLE, TECHNICAL
CONSIDERATIONS INVOLVED IN THE "DEFINITION" OR "EVERY TIME" REGULATIONS
HERE. 

MR. JUSTICE CLARK, DISSENTING. 

I JOIN MY BROTHER FORTAS' DISSENT.  AS HE POINTS OUT THE REGULATIONS
HERE MERELY REQUIRE COMMON HONESTY AND FAIR DEALING IN THE SALE OF
DRUGS.  THE PHARMACEUTICAL COMPANIES, CONTRARY TO THE PUBLIC INTEREST,
HAVE THROUGH THEIR HIGH-SOUNDING TRADEMARKS OF LONG-ESTABLISHED
MEDICINES DECEITFULLY AND EXORBITANTLY EXTORTED HIGH PRICES THEREFOR
FROM THE SICK AND THE INFIRM.  INDEED, I WAS SO GOUGED MYSELF JUST
RECENTLY WHEN I PURCHASED SOME ORDINARY EYEWASH DROPS AND LATER LEARNED
THAT I PAID 10 TIMES THE PRICE THE DROPS SHOULD HAVE COST.  LIKEWISE, A
YEAR OR SO AGO I PURCHASED A BRAND NAME DRUG FOR THE TREATMENT OF
LABYRINTHITIS AT A COST OF SOME $12, WHICH LATER I LEARNED TO BUY BY
ITS ESTABLISHED NAME FOR ABOUT $1. 

THE COURT SAYS THAT ITS ACTION IN SO SABOTAGING THE PUBLIC INTEREST
IS REQUIRED BECAUSE THE LABORATORIES WILL HAVE TO "CHANGE ALL THEIR
LABELS, ADVERTISEMENTS, AND PROMOTIONAL MATERIALS  ... DESTROY STOCKS
OF PRINTED MATTER; AND THEY MUST INVEST HEAVILY IN NEW PRINTING TYPE
AND NEW SUPPLIES."  I SUBMIT THAT THIS IS A LAME EXCUSE FOR PERMITTING
THE CONTINUANCE OF SUCH A DISHONEST PRACTICE.  RATHER THAN CRYING OVER
THE PLIGHT THAT THE LABORATORIES HAVE BROUGHT ON THEMSELVES THE COURT
SHOULD THINK MORE OF THE POOR AILING FOLKS WHO SUFFER UNDER THE
PRACTICE.  I DARE SAY THAT THE PRACTICE HAS PREVENTED MILLIONS FROM
OBTAINING NEEDED DRUGS BECAUSE OF THE PRICE.  THE LABELS INVOLVED HERE
MISLEAD THE PUBLIC BY PASSING OFF ORDINARY MEDICINES AS FANCY CURES. 
THE COMMISSIONER WAS RIGHT IN DIRECTING THAT THE PRACTICE BE STOPPED. 

I HOPE THAT THE CONGRESS WILL NOT DELAY IN AMENDING THE ACT TO CLOSE
THIS JUDICIAL EXITION THAT THE COURT HAS UNWISELY OPENED UP FOR THE
PHARMACEUTICAL COMPANIES. 
..END :


















SECURITIES AND EXCHANGE COMMISSION V. UNITED BENEFIT LIFE INS. CO. 387
U.S. 202 


NO. 428.  ARGUED APRIL 10, 1967.  - DECIDED MAY 22, 1967.  - 123 U.S.
APP. D.C. 305, 359 F.2D 619, REVERSED AND REMANDED. 


PETITIONER, THE SECURITIES AND EXCHANGE COMMISSION (SEC), BROUGHT THIS
ACTION TO ENJOIN RESPONDENT, UNITED BENEFIT LIFE INSURANCE CO.
(UNITED), FROM OFFERING ITS "FLEXIBLE FUND ANNUITY" CONTRACT WITHOUT
MEETING THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND
TO COMPEL UNITED TO REGISTER THE "FLEXIBLE FUND" AS AN "INVESTMENT
COMPANY" PURSUANT TO SEC 8 OF THE INVESTMENT COMPANY ACT OF 1940.  THE
"FLEXIBLE FUND" CONTRACT IS A DEFERRED, OR OPTIONAL, ANNUITY PLAN,
UNDER WHICH THE PURCHASER AGREES TO PAY A FIXED MONTHLY PREMIUM FOR A
CERTAIN NUMBER OF YEARS.  UNITED MAINTAINS THE FUND CONSISTING OF THE
PURCHASERS' PREMIUMS LESS EXPENSES IN A SEPARATE ACCOUNT INVESTED
MOSTLY IN COMMON STOCKS TO PRODUCE CAPITAL GAINS AS WELL AS INTEREST
RETURN.  THE CASH VALUE OF A PURCHASER'S INTEREST, WHICH IS MEASURED BY
AND VARIES WITH THE INVESTMENT EXPERIENCE OF THE "FLEXIBLE FUND"
ACCOUNT, MAY BE WITHDRAWN BEFORE MATURITY, OR AT MATURITY (WHEN THE
PURCHASER'S INTEREST IN THE FUND ENDS) IT MAY BE USED TO PURCHASE A
CONVENTIONAL FIXED DOLLAR ANNUITY.  THE CONTRACT ALSO CONTAINS A
PROVISION FOR A GUARANTEED MINIMUM CASH VALUE RANGING FROM 50% OF NET
PREMIUMS THE FIRST YEAR TO 100% AFTER 10 YEARS WHICH IS AVAILABLE
BEFORE OR AT MATURITY.  UNITED FEATURES THE PROGRAM AS AN INVESTMENT
OPPORTUNITY TO GAIN THROUGH COMMON STOCK INVESTMENT.  THE SEC CONTENDED
THAT THE PRE-MATURITY PHASE OF THE CONTRACT WAS SEPARABLE AND
CONSTITUTED A "SECURITY" UNDER THE SECURITIES ACT.  THE COURT OF
APPEALS UPHELD THE DISTRICT COURT'S CONCLUSION THAT THE CONTRACT SHOULD
BE CONSIDERED IN ITS ENTIRETY AND THUS VIEWED HAD THE CHARACTER OF
INSURANCE AND CAME WITHIN THE OPTIONAL ANNUITY EXEMPTION IN SEC 3(A) OF
THE SECURITIES ACT.  THOUGH THE COURT OF APPEALS ACKNOWLEDGED AS
CONTROLLING S.E.C. V. VARIABLE ANNUITY LIFE INSURANCE CO., 359 U.S. 65
(VALIC), WHICH HELD THAT A VARIABLE ANNUITY CONTRACT WAS AN INVESTMENT
CONTRACT AND NOT EXEMPT FROM THE SECURITIES LAWS AS INSURANCE, IT READ
THE DECISION ONLY AS HOLDING THAT A COMPANY IN ORDER TO QUALIFY ITS
PRODUCTS AS INSURANCE MUST BEAR A SUBSTANTIAL PART OF THE INVESTMENT
RISK ASSOCIATED WITH THE CONTRACT.  THE COURT FELT THAT TEST WAS
SATISFIED HERE BY THE NET PREMIUM GUARANTEE AND CONVERSION TO PAYMENTS
WHICH INCLUDED AN INTEREST ELEMENT.  CONSEQUENTLY, THE QUESTION WHETHER
THE "FLEXIBLE FUND" WAS AN INVESTMENT COMPANY UNDER THE INVESTMENT
COMPANY ACT WAS NOT REACHED.  HELD: 

1.  THE OPERATION OF THE "FLEXIBLE FUND" CONTRACT DURING THE PRE
MATURITY PERIOD DURING WHICH THE INSURER PROMISES TO SERVE AS AN
INVESTMENT AGENCY IS DISTINCTLY SEPARABLE FROM THE POST-MATURITY
BENEFIT SCHEME WHICH IS EXEMPTED FROM THE SECURITIES ACT.  PP. 207
209. 

2.  THE "FLEXIBLE FUND" CONTRACT DOES NOT COME WITHIN THE INSURANCE
EXEMPTION OF SEC 3(A) OF THE SECURITIES ACT SINCE THE APPEAL TO THE
PURCHASER IS NOT ON THE USUAL BASIS OF STABILITY AND SECURITY BUT ON
THE PROSPECT OF "GROWTH" THROUGH SOUND INVESTMENT MANAGEMENT.  UNITED'S
ASSUMPTION OF AN INVESTMENT RISK BY ITS GUARANTEE OF CASH VALUE BASED
ON NET PREMIUMS (A FACTOR GIVEN UNDUE WEIGHT BY THE COURT OF APPEALS IN
CONSIDERING VALIC) CANNOT BY ITSELF CREATE AN INSURANCE PROVISION UNDER
THE FEDERAL DEFINITION.  PP. 209-211. 

3.  THE ACCUMULATION PROVISIONS OF THE "FLEXIBLE FUND" CONTRACT
CONSTITUTE AN INVESTMENT CONTRACT UNDER SEC 2 OF THE SECURITIES ACT
UNDER THE TEST THAT THE TERMS OF THE OFFER SHAPE THE CHARACTER OF THE
INSTRUMENT UNDER THE ACT, THE CONTRACT HERE BEING OFFERED TO PURCHASERS
IN COMPETITION WITH MUTUAL FUNDS.  PP. 211-212. 

4.  THE QUESTION WHETHER THE "FLEXIBLE FUND" MAY BE SEPARATED FROM
UNITED'S INSURANCE ACTIVITIES AND CONSIDERED AN INVESTMENT COMPANY
UNDER THE INVESTMENT COMPANY ACT IS REMANDED TO THE COURT OF APPEALS
FOR FURTHER CONSIDERATION.  P. 212. 

SECURITIES AND EXCHANGE COMMISSION V. UNITED BENEFIT LIFE INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS INITIATED BY THE SECURITIES AND EXCHANGE COMMISSION
TO ENJOIN RESPONDENT (UNITED) FROM OFFERING ITS "FLEXIBLE FUND ANNUITY"
CONTRACT WITHOUT UNDERTAKING THE REGISTRATION REQUIRED BY SEC 5 OF THE
SECURITIES ACT OF 1933, (FN1) AND TO COMPEL UNITED TO REGISTER THE
"FLEXIBLE FUND" ITSELF AS AN "INVESTMENT COMPANY" PURSUANT TO SEC 8 OF
THE INVESTMENT COMPANY ACT OF 1940.  (FN2) 

THE "FLEXIBLE FUND ANNUITY" IS A DEFERRED, OR OPTIONAL, ANNUITY PLAN
HAVING CHARACTERISTICS SOMEWHAT SIMILAR TO THOSE OF THE VARIABLE
ANNUITIES THIS COURT HELD, IN S.E.C. V. VARIABLE ANNUITY LIFE INSURANCE
CO., 359 U.S. 65 (VALIC), TO BE SUBJECT TO THE SECURITIES ACT.  LIKE
THE VARIABLE ANNUITY, IT IS A RECENT EFFORT TO MEET THE CHALLENGE OF
INFLATION BY ALLOWING THE PURCHASER TO REAP THE BENEFITS OF A
PROFESSIONAL INVESTMENT PROGRAM WHILE AT THE SAME TIME GAINING THE
SECURITY OF AN INSURANCE ANNUITY.  (FN3)  THERE ARE, HOWEVER,
SIGNIFICANT DIFFERENCES BETWEEN THE "FLEXIBLE FUND" CONTRACT AND THE
VARIABLE ANNUITY, AND IT IS CLAIMED THAT THESE DIFFERENCES SUFFICE TO
BRING THE "FLEXIBLE FUND" CONTRACT WITHIN THE "OPTIONAL ANNUITY
CONTRACT" EXEMPTION OF SEC 3(A)(8) OF THE SECURITIES ACT (FN4) AND TO
BRING THE "FLEXIBLE FUND" ITSELF WITHIN THE "INSURANCE COMPANY"
EXEMPTION OF SEC 3(C)(3) OF THE INVESTMENT COMPANY ACT, 54 STAT. 798,
15 U.S.C. SEC 80A-3(C)(3). 

THE PURCHASER OF A "FLEXIBLE FUND" ANNUITY AGREES TO PAY A FIXED
MONTHLY PREMIUM FOR A NUMBER OF YEARS BEFORE A SPECIFIED MATURITY
DATE.  THAT PREMIUM, LESS A DEDUCTION FOR EXPENSES (THE NET PREMIUM),
IS PLACED IN A "FLEXIBLE FUND" ACCOUNT WHICH UNITED MAINTAINS
SEPARATELY FROM ITS OTHER FUNDS, PURSUANT TO NEBRASKA LAW.  NEB. REV.
STAT. SEC 44-310.06 (1963 CUM. SUPP.).  UNITED UNDERTAKES TO INVEST THE
"FLEXIBLE FUND" WITH THE OBJECT OF PRODUCING CAPITAL GAINS AS WELL AS
AN INTEREST RETURN, AND THE MAJOR PART OF THE FUND IS INVESTED IN
COMMON STOCKS.  THE PURCHASER, AT ALL TIMES BEFORE MATURITY, IS
ENTITLED TO HIS PROPORTIONATE SHARE OF THE TOTAL FUND AND MAY WITHDRAW
ALL OR PART OF THIS INTEREST.  THE PURCHASER IS ALSO ENTITLED TO AN
ALTERNATIVE CASH VALUE MEASURED BY A PERCENTAGE OF HIS NET PREMIUMS
WHICH GRADUALLY INCREASES FROM 50% OF THAT SUM IN THE FIRST YEAR TO
100% AFTER 10 YEARS.  OTHER FEATURES, COMMON TO CONVENTIONAL ANNUITY
CONTRACTS, ARE ALSO INCORPORATED IN UNITED'S PLAN.  (FN5) 

AT MATURITY, THE PURCHASER MAY ELECT TO RECEIVE THE CASH VALUE OF HIS
POLICY, MEASURED EITHER BY HIS INTEREST IN THE FUND OR BY THE NET
PREMIUM GUARANTEE, WHICHEVER IS LARGER.  HE MAY ALSO CHOOSE TO CONVERT
HIS INTEREST INTO A LIFE ANNUITY UNDER CONDITIONS SPECIFIED IN THE
"FLEXIBLE FUND" CONTRACT.  THESE CONDITIONS RELATE FUTURE BENEFITS TO
DOLLARS AVAILABLE AT MATURITY SO THE DOLLAR BENEFITS TO BE RECEIVED
WILL VARY WITH THE CASH VALUE AT MATURITY.  HOWEVER, THE NET PREMIUM
GUARANTEE IS, BECAUSE OF THIS CONVERSION SYSTEM, ALSO A GUARANTEE THAT
A CERTAIN AMOUNT OF FIXED-AMOUNT PAYMENT LIFE ANNUITY WILL BE AVAILABLE
AT MATURITY. 

AFTER MATURITY THE POLICYHOLDER HAS NO FURTHER INTEREST IN THE
"FLEXIBLE FUND."  HE HAS EITHER RECEIVED THE VALUE OF HIS INTEREST IN
CASH, OR CONVERTED TO A FIXED-PAYMENT ANNUITY IN WHICH CASE HIS
INTEREST HAS BEEN TRANSFERRED FROM THE "FLEXIBLE FUND" TO THE GENERAL
RESERVES OF THE COMPANY, AND MINGLED, ON EQUAL TERMS PER DOLLAR OF CASH
VALUE, WITH THE INTERESTS OF HOLDERS OF CONVENTIONAL DEFERRED
ANNUITIES. 

BECAUSE OF THE TERMINATION OF INTEREST IN THE "FLEXIBLE FUND" AT
MATURITY, THE SEC CONTENDED THAT THE PORTION OF THE "FLEXIBLE FUND"
CONTRACT WHICH DEALT WITH THE PRE-MATURITY PERIOD WAS SEPARABLE AND A
"SECURITY," WITHIN THE MEANING OF THE SECURITIES ACT.  IT WAS AGREED
THAT THE PROVISIONS DEALING WITH THE OPERATION OF THE FIXED-PAYMENT
ANNUITY WERE PURELY CONVENTIONAL INSURANCE PROVISIONS, AND THUS BEYOND
THE PURVIEW OF THE SEC.  THE DISTRICT COURT HELD THAT THE GUARANTEE OF
A FIXED-PAYMENT ANNUITY OF A SUBSTANTIAL AMOUNT GAVE THE ENTIRE
CONTRACT THE CHARACTER OF INSURANCE.  THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT AFFIRMED.  123 U.S. APP. D.C. 305, 359
F.2D 619.  THAT COURT REJECTED "THE SEC'S BASIC PREMISE THAT THE
CONTRACT SHOULD BE FRAGMENTED AND THE RISK DURING THE DEFERRED PERIOD
ONLY SHOULD BE CONSIDERED."  CONSIDERING THE CONTRACT AS A WHOLE, IT
FOUND, AS THE SEC HAD URGED, THAT THIS COURT'S DECISION IN VALIC,
SUPRA, WAS CONTROLLING.  BUT IT READ THAT DECISION TO HOLD ONLY "THAT A
COMPANY MUST BEAR A SUBSTANTIAL PART OF THE INVESTMENT RISK ASSOCIATED
WITH THE CONTRACT  ...  IN ORDER TO QUALIFY ITS PRODUCTS AS
'INSURANCE.'"  123 U.S. APP. D.C., AT 308, 359 F.2D, AT 622.  BECAUSE
OF THE NET PREMIUM GUARANTEE AND THE CONVERSION TO PAYMENTS WHICH
INCLUDED AN INTEREST ELEMENT DURING THE FIXED-PAYMENT PERIOD, THE COURT
CONCLUDED THAT THE "FLEXIBLE FUND" MET THIS TEST.  BECAUSE OF THE
IMPORTANCE OF THE ISSUE, AND THE NEED FOR CLARIFYING THE IMPLICATIONS
OF THE VALIC DECISION, WE GRANTED CERTIORARI, 385 U.S. 918.  WE NOW
REVERSE FOR REASONS GIVEN BELOW. 

FIRST, WE DO NOT AGREE WITH THE COURT OF APPEALS THAT THE "FLEXIBLE
FUND" CONTRACT MUST BE CHARACTERIZED IN ITS ENTIRETY.  TWO ENTIRELY
DISTINCT PROMISES ARE INCLUDED IN THE CONTRACT AND THEIR OPERATION IS
SEPARATED AT A FIXED POINT IN TIME.  IN SELLING A DEFERRED ANNUITY
CONTRACT OF ANY TYPE, UNITED MUST FIRST DECIDE WHAT AMOUNT OF ANNUITY
PAYMENT IS TO BE ALLOWED FOR EACH DOLLAR PAID INTO THE ANNUITY FUND AT
MATURITY.  (FN6)  IN MAKING THAT CALCULATION UNITED MUST ANALYZE
EXPECTED MORTALITY, INTEREST, AND EXPENSES OF ADMINISTRATION.  THE
OUTCOME OF THAT CALCULATION IS SHOWN IN THE CONVERSION TABLE WHICH IS
INCLUDED IN THE "FLEXIBLE FUND" CONTRACT. 

THE SECOND PROBLEM UNITED MUST FACE IN A DEFERRED ANNUITY IS TO
DETERMINE WHAT AMOUNT WILL BE AVAILABLE FOR THE ANNUITY FUND AT
MATURITY.  IN A CONVENTIONAL ANNUITY WHERE A FIXED AMOUNT OF BENEFITS
IS STIPULATED IT IS ESSENTIAL THAT THE PREMIUMS BOTH COVER EXPENSES AND
PRODUCE A FUND SUFFICIENT TO SUPPORT THE PROMISED BENEFITS.  (FN7)  IN
FIXING THE NECESSARY PREMIUM MORTALITY EXPERIENCE IS A SUBORDINATE
FACTOR AND THE PLANNING PROBLEM IS TO DECIDE WHAT INTEREST AND EXPENSE
RATES MAY BE EXPECTED.  THERE IS SOME SHIFTING OF RISK FROM
POLICYHOLDER TO INSURER, BUT NO POOLING OF RISKS AMONG POLICYHOLDERS. 
IN OTHER WORDS, THE INSURER IS ACTING, IN A ROLE SIMILAR TO THAT OF A
SAVINGS INSTITUTION, AND STATE REGULATION IS ADJUSTED TO THIS ROLE. 
(FN8)  THE POLICYHOLDER HAS NO DIRECT INTEREST IN THE FUND (FN9) AND
THE INSURER HAS A DOLLAR TARGET TO MEET. 

THE "FLEXIBLE FUND" PROGRAM COMPLETELY REVERSES THE ROLE OF THE
INSURER DURING THE ACCUMULATION PERIOD.  INSTEAD OF PROMISING TO THE
POLICYHOLDER AN ACCUMULATION TO A FIXED AMOUNT OF SAVINGS AT INTEREST,
THE INSURER PROMISES TO SERVE AS AN INVESTMENT AGENCY AND ALLOW THE
POLICYHOLDER TO SHARE IN ITS INVESTMENT EXPERIENCE.  THE INSURER IS
OBLIGATED TO PRODUCE NO MORE THAN THE GUARANTEED MINIMUM AT MATURITY,
AND THIS AMOUNT IS SUBSTANTIALLY LESS THAN THAT GUARANTEED BY THE SAME
PREMIUMS IN A CONVENTIONAL DEFERRED ANNUITY CONTRACT.  (FN10)  THE
FIXED-PAYMENT BENEFITS ARE ADJUSTED TO REFLECT THE NUMBER OF DOLLARS
AVAILABLE, AS OPPOSED TO THE CONVENTIONAL ANNUITY WHERE THE AMOUNT
AVAILABLE IS PLANNED TO REFLECT THE PROMISED BENEFITS. 

THE INSURER MAY PLAN TO MEET THE MINIMUM GUARANTEE BY SPLIT FUNDING -
THAT IS, TREATING PART OF THE NET PREMIUM AS IT WOULD A PREMIUM UNDER A
CONVENTIONAL DEFERRED ANNUITY CONTRACT WITH A CASH VALUE AT MATURITY
EQUAL TO THE MINIMUM GUARANTEE AND INVESTING ONLY THE REMAINDER (FN11)
OR BY SETTING THE MINIMUM LOW ENOUGH THAT THE RISK OF NOT BEING ABLE
TO MEET IT THROUGH INVESTMENT IS INSIGNIFICANT.  THE LATTER IS THE
COURSE UNITED SEEMS TO HAVE PURSUED.  (FN12)  IN EITHER CASE THE
GUARANTEE CANNOT BE SAID TO INTEGRATE THE PRE-MATURITY OPERATION INTO
THE POST-MATURITY BENEFIT SCHEME.  UNITED COULD AS EASILY ATTACH A
"FLEXIBLE FUND" OPTION TO A DEFERRED LIFE INSURANCE CONTRACT OR ANY
OTHER BENEFIT WHICH COULD OTHERWISE BE PROVIDED BY A SINGLE PAYMENT. 
AND THE ANNUITY PORTION OF THE CONTRACT COULD BE OFFERED INDEPENDENTLY
OF THE "FLEXIBLE FUND."  (FN13)  WE THEREFORE CONCLUDE THAT WE MUST
ASSESS INDEPENDENTLY THE OPERATION OF THE "FLEXIBLE FUND" CONTRACT
DURING THE DEFERRED PERIOD TO DETERMINE WHETHER THAT SEPARABLE PORTION
OF THE CONTRACT FALLS WITHIN THE CLASS OF THOSE EXEMPTED BY CONGRESS
FROM THE REQUIREMENTS OF THE SECURITIES ACT, AND, IF NOT, WHETHER THE
CONTRACT CONSTITUTES A "SECURITY" WITHIN SEC 2 OF THAT ACT, 48 STAT.
74, 15 U.S.C. SEC 77B. 

THE PROVISIONS TO BE EXAMINED ARE LESS DIFFICULT OF CLASSIFICATION
THAN THE ONES PRESENTED TO US IN VALIC.  THERE IT WAS HELD THAT THE
ENTIRE PLAN UNDER WHICH BENEFITS CONTINUED TO FLUCTUATE WITH THE
FORTUNES OF THE FUND AFTER MATURITY, WAS NOT A CONTRACT OF INSURANCE
WITHIN THE SEC 3(A) EXEMPTION.  A POOLING OF MORTALITY RISK WAS
OPERATIVE DURING THE PAYMENT PERIOD, AND THE CONTRACT WAS ONE OF
INSURANCE UNDER STATE LAW, BUT A MAJORITY OF THIS COURT HELD THAT "THE
MEANING OF 'INSURANCE'  ...  UNDER THESE FEDERAL ACTS IS A FEDERAL
QUESTION," 359 U.S., AT 69, AND "THAT THE CONCEPT OF 'INSURANCE'
INVOLVES SOME INVESTMENT RISK-TAKING ON THE PART OF THE COMPANY."  ID.,
AT 71.  THE ARGUMENT "THAT THE EXISTENCE OF ADEQUATE STATE REGULATION
WAS THE BASIS FOR THE EXEMPTION (THE POSITION TAKEN BY FOUR DISSENTING
JUSTICES)  ...  WAS CONCLUSIVELY REJECTED  ...  IN VALIC FOR THE REASON
THAT VARIABLE ANNUITIES ARE 'SECURITIES' AND INVOLVE CONSIDERATIONS OF
INVESTMENT NOT PRESENT IN THE CONVENTIONAL CONTRACT OF INSURANCE." 
PRUDENTIAL INSURANCE CO. V. S.E.C., 326 F.2D 383, 388.  IT WAS IMPLIED
IN THE MAJORITY OPINION IN VALIC AND MADE EXPLICIT BY THE TWO
CONCURRING JUSTICES,  (FN14)  THAT THE EXEMPTION WAS TO BE CONSIDERED A
CONGRESSIONAL DECLARATION "THAT THERE THEN WAS A FORM OF 'INVESTMENT'
KNOWN AS INSURANCE (INCLUDING 'ANNUITY CONTRACTS') WHICH DID NOT
PRESENT VERY SQUARELY THE SORT OF PROBLEMS THAT THE SECURITIES ACT  ...
WAS DEVISED TO DEAL WITH, AND WHICH WERE, IN MANY DETAILS, SUBJECT TO
A FORM OF STATE REGULATION OF A SORT WHICH MADE THE FEDERAL REGULATION
EVEN LESS RELEVANT."  VALIC, AT 75 (OPINION OF BRENNAN, J.).  IN
CONSIDERING VALIC TO HAVE TURNED SOLELY ON THE ABSENCE OF ANY
SUBSTANTIAL INVESTMENT RISK-TAKING ON THE PART OF THE INSURER THERE, WE
THINK THAT THE COURT OF APPEALS IN THE PRESENT CASE VIEWED THAT
DECISION TOO NARROWLY. 

APPROACHING THE ACCUMULATION PORTION OF THIS CONTRACT, IN THIS LIGHT,
WE HAVE LITTLE DIFFICULTY IN CONCLUDING THAT IT DOES NOT FALL WITHIN
THE INSURANCE EXEMPTION OF SEC 3(A) OF THE SECURITIES ACT.  "FLEXIBLE
FUND" ARRANGEMENTS REQUIRE SPECIAL MODIFICATIONS OF STATE LAW, AND ARE
CONSIDERED TO APPEAL TO THE PURCHASER NOT ON THE USUAL INSURANCE BASIS
OF STABILITY AND SECURITY BUT ON THE PROSPECT OF "GROWTH" THROUGH SOUND
INVESTMENT MANAGEMENT.  (FN15)  AND WHILE THE GUARANTEE OF CASH VALUE
BASED ON NET PREMIUMS REDUCES SUBSTANTIALLY THE INVESTMENT RISK OF THE
CONTRACT HOLDER, THE ASSUMPTION OF AN INVESTMENT RISK CANNOT BY ITSELF
CREATE AN INSURANCE PROVISION UNDER THE FEDERAL DEFINITION.  HELVERING
V. LE GIERSE, 312 U.S. 531, 542.  THE BASIC DIFFERENCE BETWEEN A
CONTRACT WHICH TO SOME DEGREE IS INSURED AND A CONTRACT OF INSURANCE
MUST BE RECOGNIZED. 

WE FIND IT EQUALLY CLEAR THAT THE ACCUMULATION PROVISIONS CONSTITUTE
AN "INVESTMENT CONTRACT" WITHIN THE TERMS OF SEC 2 OF THE SECURITIES
ACT.  AS THE COURT SAID IN S.E.C.  V. JOINER LEASING CORP., 320 U.S.
344, 352-353, "THE TEST  ...  IS WHAT CHARACTER THE INSTRUMENT IS GIVEN
IN COMMERCE BY THE TERMS OF THE OFFER, THE PLAN OF DISTRIBUTION, AND
THE ECONOMIC INDUCEMENTS HELD OUT TO THE PROSPECT.  IN THE ENFORCEMENT
OF AN ACT SUCH AS THIS IT IS NOT INAPPROPRIATE THAT PROMOTERS'
OFFERINGS BE JUDGED AS BEING WHAT THEY WERE REPRESENTED TO BE." 
CONTRACTS SUCH AS THE "FLEXIBLE FUND" OFFER IMPORTANT COMPETITION TO
MUTUAL FUNDS, SEE JOHNSON, THE VARIABLE ANNUITY - INSURANCE,
INVESTMENT, OR BOTH?, 48 GEO. L.J. 641, AND ARE PITCHED TO THE SAME
CONSUMER INTEREST IN GROWTH THROUGH PROFESSIONALLY MANAGED INVESTMENT. 
IT SEEMS EMINENTLY FAIR THAT A PURCHASER OF SUCH A PLAN BE AFFORDED THE
SAME ADVANTAGES OF DISCLOSURE WHICH INURE TO A MUTUAL FUND PURCHASER
UNDER SEC 5 OF THE SECURITIES ACT.  "AT THE STATE LEVEL THE UNIFORM
SECURITIES ACT MAKES EXPLICIT WHAT SEEMS TO BE THE VIEW OF THE GREAT
MAJORITY OF BLUE SKY ADMINISTRATORS TO THE EFFECT THAT VARIABLE
ANNUITIES ARE SECURITIES  ...  ."  1 LOSS, SECURITIES REGULATION 499. 
GIVEN VALIC, WE HOLD THAT FOR THE PURPOSES OF THE SECURITIES ACT THESE
CONTRACTS ARE ALSO TO BE CONSIDERED NONEXEMPT SECURITIES AND CANNOT BE
OFFERED TO THE PUBLIC WITHOUT CONFORMITY TO THE REGISTRATION
REQUIREMENTS OF SEC 5. 

BECAUSE THE COURTS BELOW CONSIDERED THE CONTRACT ITSELF TO BE EXEMPT,
THEY DID NOT REACH THE QUESTION WHETHER THE "FLEXIBLE FUND" WAS AN
"INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940.  IN
VALIC THE SOLE BUSINESS OF THE INSURER WAS THE ISSUANCE OF THE
CONTRACTS HELD TO BE SECURITIES, AND THUS THE COURT HELD THE INSURER TO
BE AN INVESTMENT COMPANY.  IT IS CLEAR, HOWEVER, THAT UNITED IN THE
MAIN IS AN INSURANCE COMPANY EXEMPT FROM THE REQUIREMENTS OF THE
INVESTMENT COMPANY ACT.  MOREOVER, THE PROVISIONS OF THAT ACT ARE
SUBSTANTIVE AND GO WELL BEYOND THE DISCLOSURE REQUIREMENTS OF THE
SECURITIES ACT.  THUS THE QUESTION WHETHER THE FUND MAY BE SEPARATED
FROM UNITED'S OTHER ACTIVITIES AND CONSIDERED AN INVESTMENT COMPANY IS
A DIFFICULT ONE.  SEE COMMENT, 61 MICH. L. REV.  1374; NOTE, REGULATION
OF VARIABLE ANNUITY SALES:  THE AFTERMATH OF SEC V. VALIC, 1959 WASH.
U.L.Q. 206.  AN INVESTIGATION INTO THE RELATIONSHIP BETWEEN THE
"FLEXIBLE FUND" AND UNITED'S INSURANCE BUSINESS, AS WELL AS AN
INVESTIGATION OF THE POSSIBLE CONFLICTS BETWEEN STATE AND FEDERAL
REGULATION, IS REQUIRED FOR A PROPER RESOLUTION.  THE SEC HAS REQUESTED
US TO REMAND THE CASE FOR FURTHER CONSIDERATION OF THIS ISSUE, AND IN
VIEW OF ITS COMPLEXITY, WE DEEM THIS THE WISEST COURSE. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT IS REVERSED AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  48 STAT. 77, 15 U.S.C. SEC 77E. 

FN2  54 STAT. 803, 15 U.S.C. SEC 80A-8. 

FN3  UNITED'S SALES BROCHURE DESCRIBES THE PLAN AS FEATURING "A
METHOD OF ACCUMULATION MODERNIZED TO KEEP PACE WITH TODAY'S LIVING  ...
AND A CHANCE TO SHARE IN THE GROWTH OF THE COUNTRY'S ECONOMY."  AT THE
SAME TIME IT IS CLAIMED THAT THE PLAN "COMBINES THIS NEW METHOD OF
ACCUMULATION WITH THE TIME-TESTED ADVANTAGES OF A LIFETIME ANNUITY  ...
A SAVINGS AND ACCUMULATION PLAN THAT GUARANTEES A LIFETIME INCOME AT
MATURITY." 

FN4  48 STAT. 76, 15 U.S.C. SEC 77CA)(8) EXEMPTS FROM THE OPERATION
OF THE SECURITIES ACT "ANY INSURANCE OR ENDOWMENT POLICY OR ANNUITY
CONTRACT OR OPTIONAL ANNUITY CONTRACT, ISSUED BY A CORPORATION SUBJECT
TO THE SUPERVISION OF THE INSURANCE COMMISSIONER, BANK COMMISSIONER, OR
ANY AGENCY OR OFFICER PERFORMING LIKE FUNCTIONS, OF ANY STATE OR
TERRITORY OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA." 

FN5  FOR EXAMPLE A REFUND OF PREMIUMS IS PROVIDED IN CASE OF DEATH
BEFORE MATURITY.  DEFERRED PERIODS OF VARYING DURATION MAY BE CHOSEN,
AND THE PURCHASER MAY ELECT TO TURN HIS CASH VALUE INTO AN ANNUITY AT A
DATE BEFORE SPECIFIED MATURITY.  STANDARD INCONTESTABILITY CLAUSES AND
ASSIGNMENT CLAUSES ARE INCORPORATED INTO THE CONTRACT.  THE CONTRACT AT
ISSUE IN S.E.C. V. VARIABLE ANNUITY LIFE INSURANCE CO., 359 U.S. 65,
ALSO HAD SOME ANCILLARY FEATURES COMMON TO ALL STANDARD ANNUITY
CONTRACTS.  THE COURT DID NOT FIND THEM DETERMINATIVE.  ID., AT 73, N.
15. 

FN6  ANNUITIES MAY INDEED BE PURCHASED FOR A SINGLE PREMIUM, AND IT IS
THE BASIC SINGLE-PREMIUM CALCULATION WHICH CONTROLS THE BENEFITS OF ALL
DEFERRED PLANS.  SEE JOHNSON, THE VARIABLE ANNUITY - INSURANCE,
INVESTMENT, OR BOTH?, 48 GEO. L.J. 641, 655; MEHR & OSLER, MODERN LIFE
INSURANCE 79-102 (3D ED. 1961). 

FN7  FOR SUCH A CALCULATION THE RETURN-OF-PREMIUM PROVISION CAN BE
CONSIDERED TO BE A FORM OF TERM INSURANCE PROVIDED BY THE COMPANY AND
INCLUDED WITHIN THE EXPENSE ARRANGEMENTS. 

FN8  SEE HUEBNER & BLACK, LIFE INSURANCE 518-524 (5TH ED. 1958). 

FN9  SEE JOHNSON, SUPRA, N. 6, AT 673. 

FN10  THE TABLE BELOW COMPARES THE CASH VALUES OF THE "FLEXIBLE FUND"
CONTRACTS WITH THOSE OF UNITED'S STANDARD DEFERRED ANNUITIES: 

YEARS    PAID IN    FLEXIBLE FUND    RESPONDENT'S STANDARD

      GUARANTEE        DEFERRED ANNUITY

 1       1,200          300                624

 5       6,000        3,461              5,460

10      12,000       10,374    12,504

20      24,000       21,774             30,792

30      36,000       33,174             54,828

40  48,000       44,574             87,156 

FN11  SEE O'BRIEN, STATIC DOLLARS?  DYNAMIC DOLLARS?  WHY NOT HAVE
BOTH], APR. 25, 1960 INVESTMENT DEALERS' DIGEST (MUTUAL FUND
SUPPLEMENT) 56.  CF. SPELLACY V. AMERICAN LIFE INS. ASSN., 144 CONN.
346, 131 A.2D 834. 

FN12  THE RECORD SHOWS THAT UNITED SET ITS GUARANTEE BY ANALYZING THE
PERFORMANCE OF COMMON STOCKS DURING THE FIRST HALF OF THE 20TH CENTURY
AND ADJUSTING THE GUARANTEE SO THAT IT WOULD NOT HAVE BECOME OPERABLE
UNDER ANY PRIOR CONDITIONS. 

FN13  ADVISERS FUND, INC., A MUTUAL FUND, SELLS SHARES ON AN
INSTALLMENT PLAN AND SIMULTANEOUSLY GUARANTEES THAT AN AFFILIATED
INSURANCE COMPANY WILL ALLOW THE PROCEEDS ON REDEMPTION TO BE APPLIED
TO THE PURCHASE OF AN ANNUITY AT SPECIFIED CONVERSION RATES. 

FN14  MR. JUSTICE BRENNAN AND MR. JUSTICE STEWART JOINED IN A
CONCURRING OPINION WRITTEN BY MR. JUSTICE BRENNAN AND ALSO JOINED IN
THE OPINION OF THE COURT. 

FN15  UNITED'S PRIMARY ADVERTISEMENT FOR THE "FLEXIBLE FUND" WAS
HEADED "NEW OPPORTUNITY FOR FINANCIAL GROWTH."  UNITED'S SALES AID KIT
INCLUDED DISPLAYS EMPHASIZING THE POSSIBILITY OF INVESTMENT RETURN AND
THE EXPERIENCE OF UNITED'S MANAGEMENT IN PROFESSIONAL INVESTING. 
..END :












NORTHEASTERN NAT. BANK V. U.S. 387 U.S. 213 


NO. 637.  ARGUED MARCH 20, 1967.  - DECIDED MAY 22, 1967.  - 363 F.2D
476, REVERSED AND REMANDED. 


DECEDENT'S WILL ESTABLISHED A BEQUEST IN TRUST TO PROVIDE FOR MONTHLY
PAYMENTS OF $300 TO HIS WIDOW.  IF THE TRUST INCOME WERE INSUFFICIENT
THE CORPUS COULD BE INVADED TO MAKE THE SPECIFIED PAYMENTS, EXCESS
INCOME WAS TO BE ACCUMULATED, AND THE WIDOW WAS GIVEN POWER TO APPOINT
THE ENTIRE CORPUS BY WILL.  ON DECEDENT'S ESTATE TAX RETURN HIS
EXECUTOR CLAIMED THE MARITAL DEDUCTION OF ONE-HALF THE GROSS ESTATE,
INCLUDING THEREIN THE VALUE OF THE TRUST CORPUS.  THE COMMISSIONER OF
INTERNAL REVENUE DETERMINED THAT THE TRUST DID NOT QUALIFY FOR THE
DEDUCTION BECAUSE THE WIDOW'S RIGHT TO INCOME WAS NOT EXPRESSED AS A
"FRACTIONAL OR PERCENTILE SHARE" OF THE TOTAL TRUST INCOME, AS REQUIRED
BY TREAS. REG. SEC 20.2056(B)-5(C), WHICH INTERPRETS 26 U.S.C. SEC
2056(B)(5).  THAT PROVISION, INTER ALIA, QUALIFIES FOR THE DEDUCTION AN
INTEREST WHERE THE SURVIVING SPOUSE IS ENTITLED FOR LIFE TO ALL THE
INCOME FROM A "SPECIFIC PORTION" OF THE TRUST CORPUS, WITH POWER IN THE
SURVIVING SPOUSE TO APPOINT SUCH SPECIFIC PORTION.  THE EXECUTOR SUED
FOR A REFUND WHICH THE DISTRICT COURT GRANTED ON THE BASIS THAT THE
"SPECIFIC PORTION" OF THE TRUST WHOSE INCOME WOULD AMOUNT TO $300 PER
MONTH COULD BE COMPUTED AND A DEDUCTION ALLOWED FOR THAT AMOUNT,
NOTWITHSTANDING THE REGULATION.  THE COURT OF APPEALS REVERSED.  HELD: 

1.  "RESOLUTION OF THE QUESTION IN THIS CASE, WHETHER A QUALIFYING
'SPECIFIC PORTION' CAN BE COMPUTED FROM THE MONTHLY STIPEND SPECIFIED
IN A DECEDENT'S WILL, IS ESSENTIALLY A MATTER OF DISCOVERING THE INTENT
OF CONGRESS."  IN THE LEGISLATIVE HISTORY OF THE MARITAL DEDUCTION,
"THERE IS NO INDICATION WHATSOEVER THAT CONGRESS INTENDED THE DEDUCTION
ONLY TO BE AVAILABLE (WHERE THE 'SPECIFIC PORTION' IS EXPRESSED AS A
'FRACTIONAL OR PERCENTILE SHARE'), NOR IS THERE ANY APPARENT CONNECTION
BETWEEN THE PURPOSES OF THE DEDUCTION AND SUCH A LIMITATION ON ITS
AVAILABILITY."  PP. 219-222. 

2.  "THE COURT OF APPEALS CONCLUDED  ...  THAT THE COMPUTATION (OF A
'SPECIFIC PORTION' FROM THE MONTHLY STIPEND) COULD NOT BE MADE BECAUSE
'THE MARKET CONDITIONS FOR PURPOSES OF INVESTMENT ARE UNKNOWN' AND,
THEREFORE, THERE ARE NO CONSTANT INVESTMENT FACTORS TO USE IN COMPUTING
THE MAXIMUM POSSIBLE MONTHLY INCOME OF THE WHOLE CORPUS."  HOWEVER,
WHILE "PERFECT PREDICTION OF REALISTIC FUTURE RATES OF RETURN IS NOT
POSSIBLE,  ...  THE USE OF PROJECTED RATES OF RETURN IN THE
ADMINISTRATION OF THE FEDERAL TAX LAWS IS HARDLY AN INNOVATION  ...  .
IT SHOULD NOT BE A DIFFICULT MATTER TO SETTLE ON A RATE OF RETURN
AVAILABLE TO A TRUSTEE UNDER REASONABLE INVESTMENT CONDITIONS  ...  ." 
PP. 223-224. 

3.  SUCH COMPUTATION OF A "SPECIFIC PORTION" AS TO WHICH A RIGHT TO
INCOME IS GIVEN "WILL NOT RESULT IN ANY OF THE COMBINED MARITAL ESTATE
ESCAPING ULTIMATE TAXATION IN EITHER THE DECEDENT'S OR THE SURVIVING
SPOUSE'S ESTATE."  THE POSSIBLY DIFFERENT SITUATION IN THE CASE OF A
POWER OF APPOINTMENT IS NOT INVOLVED HERE.  PP. 224-225. 

4.  THE "SPECIFIC PORTION" MUST BE DETERMINED ON THE BASIS OF "THE
AMOUNT OF THE CORPUS REQUIRED TO PRODUCE THE FIXED MONTHLY STIPEND, NOT
...  THE PRESENT VALUE OF THE RIGHT TO MONTHLY PAYMENTS OVER AN
ACTUARIALLY COMPUTED LIFE EXPECTANCY."  SINCE THE LATTER METHOD WAS
USED BY THE DISTRICT COURT, THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS.  P. 225. 

NORTHEASTERN PENNSYLVANIA NATIONAL BANK & TRUST CO., EXECUTOR V. UNITED
STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER A BEQUEST IN TRUST PROVIDING FOR
THE MONTHLY PAYMENT TO DECEDENT'S WIDOW OF A FIXED AMOUNT CAN QUALIFY
FOR THE ESTATE TAX MARITAL DEDUCTION UNDER SEC 2056(B)(5) OF THE
INTERNAL REVENUE CODE OF 1954, 26 U.S.C. SEC 2056(B)(5).  THAT SECTION
ALLOWS A MARITAL DEDUCTION FROM A DECEDENT'S ADJUSTED GROSS ESTATE OF
UP TO ONE-HALF THE VALUE OF THE ESTATE IN RESPECT TO SPECIFIED
INTERESTS WHICH PASS TO THE SURVIVING SPOUSE.  AMONG THE INTERESTS
WHICH QUALIFY IS ONE IN WHICH THE SURVIVING SPOUSE "IS ENTITLED FOR
LIFE TO  ...  ALL THE INCOME FROM A SPECIFIC PORTION OF THE TRUST
PROPERTY, PAYABLE ANNUALLY OR AT MORE FREQUENT INTERVALS, WITH POWER IN
THE SURVIVING SPOUSE TO APPOINT  ...  SUCH SPECIFIC PORTION  ...  ." 
(FN1) 

AT THE DATE OF DECEDENT'S DEATH, THE VALUE OF THE TRUST CORPUS
CREATED BY HIS WILL WAS $69,246.  THE WILL PROVIDED THAT HIS WIDOW
SHOULD RECEIVE $300 PER MONTH UNTIL DECEDENT'S YOUNGEST CHILD REACHED
18, AND $350 PER MONTH THEREAFTER.  IF THE TRUST INCOME WERE
INSUFFICIENT, CORPUS COULD BE INVADED TO MAKE THE SPECIFIED PAYMENTS;
IF INCOME EXCEEDED THE MONTHLY AMOUNT, IT WAS TO BE ACCUMULATED.  THE
WIDOW WAS GIVEN POWER TO APPOINT THE ENTIRE CORPUS BY WILL.  (FN2) 

ON DECEDENT'S ESTATE TAX RETURN, HIS EXECUTOR REPORTED AN ADJUSTED
GROSS ESTATE OF $199,750.  THE EXECUTOR CLAIMED THE MAXIMUM MARITAL
DEDUCTION OF ONE-HALF THE GROSS ESTATE, $99,875, ON THE GROUND THAT
QUALIFIED INTERESTS PASSING TO THE WIFE EXCEEDED THAT AMOUNT.  THE
VALUE OF THE PROPERTY WHICH PASSED TO THE WIDOW OUTRIGHT WAS $41,751. 
TO THIS THE EXECUTOR ADDED THE FULL VALUE OF THE TRUST, $69,246.  THE
COMMISSIONER, HOWEVER, DETERMINED THAT THE TRUST DID NOT QUALIFY FOR
THE MARITAL DEDUCTION BECAUSE THE WIDOW'S RIGHT TO THE INCOME OF THE
TRUST WAS NOT EXPRESSED AS A "FRACTIONAL OR PERCENTILE SHARE" OF THE
TOTAL TRUST INCOME, AS THE TREASURY REGULATION, SEC 20.2056(B)-5(C),
REQUIRES.  ACCORDINGLY, THE COMMISSIONER REDUCED THE AMOUNT OF THE
ALLOWABLE DEDUCTION TO $41,751.  THE RESULTING DEFICIENCY IN ESTATE TAX
WAS PAID, A CLAIM FOR REFUND WAS DISALLOWED, THE EXECUTOR SUED IN
DISTRICT COURT FOR REFUND, AND THE DISTRICT JUDGE GAVE SUMMARY JUDGMENT
FOR THE EXECUTOR.  ON APPEAL, THE COURT OF APPEALS FOR THE THIRD
CIRCUIT, SITTING EN BANC, REVERSED, WITH THREE JUDGES DISSENTING. 
BECAUSE OF AN ACKNOWLEDGED CONFLICT BETWEEN THE DECISION OF THE THIRD
CIRCUIT IN THIS CASE AND THAT OF THE SEVENTH CIRCUIT IN UNITED STATES
V. CITIZENS NATIONAL BANK OF EVANSVILLE, 359 F.2D 817, PETITION FOR
CERTIORARI PENDING, NO. 488, OCTOBER TERM, 1966, (FN3) WE GRANTED
CERTIORARI.  385 U.S. 967.  WE REVERSE. 

THE BASIS FOR THE COMMISSIONER'S DISALLOWANCE LAY IN TREASURY
REGULATION SEC 20.2056(B)-5(C).  THIS INTERPRETATIVE REGULATION
PURPORTS TO DEFINE "SPECIFIC PORTION" AS IT IS USED IN SEC 2056(B)(5)
OF THE CODE:  "A PARTIAL INTEREST IN PROPERTY IS NOT TREATED AS A
SPECIFIC PORTION OF THE ENTIRE INTEREST UNLESS THE RIGHTS OF THE
SURVIVING SPOUSE IN INCOME  ...  CONSTITUTE A FRACTIONAL OR PERCENTILE
SHARE OF A PROPERTY INTEREST  ...  ."  THE REGULATION SPECIFICALLY
PROVIDES THAT "IF THE ANNUAL INCOME OF THE SPOUSE IS LIMITED TO A
SPECIFIC SUM  ...  THE INTEREST IS NOT A DEDUCTIBLE INTEREST."  (FN4)
IF THIS REGULATION PROPERLY IMPLEMENTS THE CODE, THE TRUST IN THIS CASE
PLAINLY FAILS TO QUALIFY FOR THE MARITAL DEDUCTION.  WE HOLD, HOWEVER,
THAT IN THE CONTEXT OF THIS CASE THE REGULATION IMPROPERLY RESTRICTS
THE SCOPE OF THE CONGRESSIONALLY GRANTED DEDUCTION. 

IN THE DISTRICT COURT, THE EXECUTOR INITIALLY CLAIMED THAT THE ENTIRE
TRUST QUALIFIED FOR THE MARITAL DEDUCTION SIMPLY BECAUSE, AT THE TIME
OF TRIAL, THE CORPUS HAD NOT YET PRODUCED AN INCOME IN EXCESS OF $300
PER MONTH, AND THAT THE WIDOW WAS THEREFORE ENTITLED "TO ALL THE INCOME
FROM THE ENTIRE INTEREST."  THE DISTRICT COURT REJECTED THIS
CONTENTION, OBSERVING THAT THE INCOME FROM THE CORPUS COULD EXCEED $300
PER MONTH, AND IN THAT EVENT THE EXCESS WOULD HAVE TO BE ACCUMULATED. 
THE EXECUTOR'S ALTERNATIVE CLAIM, WHICH THE DISTRICT COURT ACCEPTED,
WAS THAT THE "SPECIFIC PORTION" OF THE TRUST CORPUS WHOSE INCOME WOULD
AMOUNT TO $300 PER MONTH COULD BE COMPUTED, AND A DEDUCTION ALLOWED FOR
THAT AMOUNT.  (FN5) 

RESOLUTION OF THE QUESTION IN THIS CASE, WHETHER A QUALIFYING
"SPECIFIC PORTION" CAN BE COMPUTED FROM THE MONTHLY STIPEND SPECIFIED
IN A DECEDENT'S WILL, IS ESSENTIALLY A MATTER OF DISCOVERING THE INTENT
OF CONGRESS.  THE GENERAL HISTORY OF THE MARITAL DEDUCTION IS WELL
KNOWN.  SEE UNITED STATES V. STAPF, 375 U.S. 118, 128 (1963).  THE
DEDUCTION WAS ENACTED IN 1948, AND THE UNDERLYING PURPOSE WAS TO
EQUALIZE THE INCIDENCE OF THE ESTATE TAX IN COMMUNITY PROPERTY AND
COMMON-LAW JURISDICTIONS.  UNDER A COMMUNITY PROPERTY SYSTEM A
SURVIVING SPOUSE TAKES OUTRIGHT OWNERSHIP OF HALF OF THE COMMUNITY
PROPERTY, WHICH THEREFORE IS NOT INCLUDED IN THE DECEASED SPOUSE'S
ESTATE.  THE MARITAL DEDUCTION ALLOWS TRANSFER OF UP TO ONE-HALF OF
NONCOMMUNITY PROPERTY TO THE SURVIVING SPOUSE FREE OF THE ESTATE TAX. 
CONGRESS, HOWEVER, ALLOWED THE DEDUCTION EVEN WHEN THE INTEREST
TRANSFERRED IS LESS THAN THE OUTRIGHT OWNERSHIP WHICH COMMUNITY
PROPERTY AFFORDS.  IN "RECOGNITION OF ONE OF THE CUSTOMARY MODES OF
TRANSFER OF PROPERTY IN COMMON-LAW STATES," (FN6) THE 1948 STATUTE
PROVIDED THAT A BEQUEST IN TRUST, WITH THE SURVIVING SPOUSE "ENTITLED
FOR LIFE TO ALL THE INCOME FROM THE CORPUS OF THE TRUST, PAYABLE
ANNUALLY OR AT MORE FREQUENT INTERVALS, WITH POWER  ...  TO APPOINT THE
ENTIRE CORPUS"  (FN7)  WOULD QUALIFY FOR THE DEDUCTION. 

THE 1948 LEGISLATION REQUIRED THAT THE BEQUEST IN TRUST ENTITLE THE
SURVIVING SPOUSE TO "ALL THE INCOME" FROM THE TRUST CORPUS, AND GRANT A
POWER TO APPOINT THE "ENTIRE CORPUS."  THESE REQUIREMENTS WERE HELD BY
SEVERAL LOWER COURTS TO DISQUALIFY FOR THE DEDUCTION A SINGLE TRUST IN
WHICH THE SURVIVING SPOUSE WAS GRANTED A RIGHT TO RECEIVE HALF (FOR
EXAMPLE) OF THE INCOME AND TO APPOINT HALF OF THE CORPUS.  (FN8)  SINCE
THERE WAS NO GOOD REASON TO REQUIRE A TESTATOR TO CREATE TWO SEPARATE
TRUSTS - ONE FOR HIS WIFE, THE OTHER FOR HIS CHILDREN, FOR EXAMPLE -
CONGRESS IN 1954 REVISED THE MARITAL DEDUCTION PROVISION OF THE STATUTE
TO ALLOW THE DEDUCTION WHERE A DECEDENT GIVES HIS SURVIVING SPOUSE "ALL
THE INCOME FROM THE ENTIRE INTEREST, OR ALL THE INCOME FROM A SPECIFIC
PORTION THEREOF" AND A POWER TO "APPOINT THE ENTIRE INTEREST, OR SUCH
SPECIFIC PORTION."  THE HOUSE REPORT ON THIS CHANGE STATES THAT "THE
BILL MAKES IT CLEAR THAT  ...  A RIGHT TO INCOME PLUS A GENERAL POWER
OF APPOINTMENT OVER ONLY AN UNDIVIDED PART OF THE PROPERTY WILL QUALIFY
THAT PART OF THE PROPERTY FOR THE MARITAL DEDUCTION."  (FN9)  THE
SENATE REPORT CONTAINS IDENTICAL LANGUAGE.  (FN10) THERE IS NO
INDICATION IN THE LEGISLATIVE HISTORY OF THE CHANGE FROM WHICH ONE
COULD CONCLUDE THAT CONGRESS - IN USING THE WORDS "ALL THE INCOME FROM
A SPECIFIC PORTION" IN THE STATUTE, OR THE EQUIVALENT WORDS "A RIGHT TO
INCOME  ...  OVER  ...  AN UNDIVIDED PART" IN THE COMMITTEE REPORTS -
INTENDED THAT THE DEDUCTION AFFORDED WOULD BE DEFEATED MERELY BECAUSE
THE "SPECIFIC PORTION" OR THE "UNDIVIDED PART" WAS NOT EXPRESSED BY THE
TESTATOR IN TERMS OF A "FRACTIONAL OR PERCENTILE SHARE" OF THE WHOLE
CORPUS.  (FN11) 

CONGRESS' INTENT TO AFFORD A LIBERAL "ESTATE-SPLITTING" POSSIBILITY
TO MARRIED COUPLES, WHERE THE DEDUCTIBLE HALF OF THE DECEDENT'S ESTATE
WOULD ULTIMATELY - IF NOT CONSUMED - BE TAXABLE IN THE ESTATE OF THE
SURVIVOR, IS UNMISTAKABLE.  INDEED, IN SEC 93 OF THE TECHNICAL
AMENDMENTS ACT OF 1958, 72 STAT. 1668, CONGRESS MADE "THE MORE
REALISTIC RULES OF THE 1954 CODE" APPLY RETROACTIVELY TO THE ORIGINAL
ENACTMENT OF THE MARITAL DEDUCTION IN 1948, AND OPENED THE STATUTE OF
LIMITATIONS TO ALLOW REFUNDS OR CREDITS FOR OVERPAYMENTS.  (FN12)
PLAINLY SUCH A PROVISION SHOULD NOT BE CONSTRUED SO AS TO IMPOSE
UNWARRANTED RESTRICTIONS UPON THE AVAILABILITY OF THE DEDUCTION.  YET
THE GOVERNMENT INSISTS THAT EVEN WHERE THERE ARE WELL-ESTABLISHED
PRINCIPLES FOR COMPUTING THE PRINCIPAL REQUIRED TO PRODUCE THE MONTHLY
STIPEND PROVIDED FOR IN A TRUST, A "SPECIFIC PORTION" CANNOT BE
DETERMINED IN THAT WAY.  THE "SPECIFIC PORTION" MUST, THE GOVERNMENT
URGES, BE EXPRESSED IN THE TRUST AS A FRACTIONAL OR PERCENTILE SHARE OF
THE TOTAL CORPUS.  THE SPOUSE OF A TESTATOR WHOSE WILL PROVIDES FOR A
SPECIFIC MONTHLY STIPEND IS DEPRIVED OF ANY BENEFIT FROM THE MARITAL
DEDUCTION, ACCORDING TO THE GOVERNMENT'S VIEW.  BUT WE CAN FIND NO
WARRANT FOR THAT NARROW VIEW, IN COMMON SENSE OR IN THE STATUTE AND ITS
HISTORY. 

THE GOVERNMENT PUTS MOST OF ITS RELIANCE UPON A PHRASE WHICH OCCURRED
ONCE IN THE LEGISLATIVE HISTORY OF THE 1948 ENACTMENT.  THE SENATE
REPORT STATED THAT THE MARITAL DEDUCTION WOULD BE AVAILABLE "WHERE THE
SURVIVING SPOUSE, BY REASON OF HER RIGHT TO THE INCOME AND A POWER OF
APPOINTMENT, IS THE VIRTUAL OWNER OF THE PROPERTY."  (FN13)  THE
GOVERNMENT'S ARGUMENT IS THAT THE DEDUCTION WAS INTENDED ONLY IN CASES
WHERE THE EQUIVALENT OF THE OUTRIGHT OWNERSHIP OF A COMMUNITY PROPERTY
STATE WAS GRANTED, AND THAT THIS IS WHAT THE SENATE REPORT MEANT BY THE
WORDS "VIRTUAL OWNER."  ACTUALLY, HOWEVER, THE WORDS WERE NOT USED IN
THAT CONTEXT AT ALL.  THE SECTION OF THE REPORT FROM WHICH THOSE WORDS
DERIVE DEALS WITH THE RULE THAT, WITH MINOR EXCEPTIONS, THE MARITAL
DEDUCTION DOES NOT APPLY WHERE ANY PERSON OTHER THAN THE SURVIVING
SPOUSE HAS ANY POWER OVER THE INCOME OR CORPUS OF THE TRUST.  IT IS IN
THIS SENSE THAT THE REPORT DESCRIBED THE SURVIVING SPOUSE AS A "VIRTUAL
OWNER."  HENCE, THE GOVERNMENT'S ARGUMENT THAT ONLY A GRANT OF THE
INCOME FROM A FRACTIONAL OR PERCENTILE SHARE SUBJECTS THE SURVIVING
SPOUSE TO THE VAGARIES AND FLUCTUATIONS OF THE ECONOMIC PERFORMANCE OF
THE CORPUS IN THE WAY AN OUTRIGHT OWNER WOULD BE, IS SIMPLY
IRRELEVANT.  THERE IS NO INDICATION WHATSOEVER THAT CONGRESS INTENDED
THE DEDUCTION TO BE AVAILABLE ONLY IN SUCH A SITUATION, NOR IS THERE
ANY APPARENT CONNECTION BETWEEN THE PURPOSES OF THE DEDUCTION AND SUCH
A LIMITATION ON ITS AVAILABILITY.  COMPARE GELB V. COMMISSIONER, 298
F.2D 544, 550-551 (C.A.2D CIR. 1962).  OBVIOUSLY CONGRESS DID NOT
INTEND THE DEDUCTION TO BE AVAILABLE ONLY WITH RESPECT TO INTERESTS
EQUIVALENT TO OUTRIGHT OWNERSHIP, OR TRUSTS WOULD NOT HAVE BEEN
PERMITTED TO QUALIFY AT ALL.  (FN14) 

THE COURT OF APPEALS ADVANCED A SOMEWHAT DIFFERENT ARGUMENT IN
SUPPORT OF THE GOVERNMENT'S CONCLUSION.  WITHOUT RELYING UPON THE
VALIDITY OF THE REGULATION, THE COURT OF APPEALS MAINTAINED THAT A
"SPECIFIC PORTION" CAN BE FOUND ONLY WHERE THERE IS AN ACCEPTABLE
METHOD OF COMPUTING IT, AND THAT NO SUCH METHOD IS AVAILABLE IN A CASE
OF THE PRESENT SORT.  THE COURT OF APPEALS NOTED THAT THE COMPUTATION
MUST PRODUCE THE "RATIO BETWEEN THE MAXIMUM MONTHLY INCOME (PRODUCIBLE
BY THE WHOLE CORPUS) AND THE MONTHLY STIPEND (PROVIDED FOR IN THE
TRUST)."  363 F.2D 476, 484.  THE FOLLOWING EXAMPLE WAS GIVEN: 

"IF THE INVESTMENT FACTORS INVOLVED WERE CONSTANT AND IT COULD BE
DETERMINED THAT THE MAXIMUM INCOME THAT COULD BE PRODUCED FROM THE
CORPUS IN A MONTH WAS, FOR EXAMPLE, $500 THEN THE RELATIONSHIP BETWEEN
THE $300 MONTHLY STIPEND AND THE $500 MAXIMUM INCOME WOULD DEFINE
'SPECIFIC PORTION' FOR MARITAL DEDUCTION PURPOSES, I.E.: 

"$300 BEING 3/5 OF $500 THEN 3/5 OF $69,245.85 WOULD BE THE 'SPECIFIC
PORTION' OF THE TRUST CORPUS FROM WHICH THE SURVIVING SPOUSE WOULD BE
ENTITLED TO THE ENTIRE INCOME OF $300 MONTHLY UNDER MAXIMUM PRODUCTION
CIRCUMSTANCES. 

"THOUGH IN REALITY IT MIGHT TAKE THE ENTIRE CORPUS TO PRODUCE THE
MONTHLY STIPEND, OR EVEN THE NECESSITY TO INVADE CORPUS MIGHT BE
PRESENT, NEVERTHELESS  ...  IT COULD BE SAID, AFTER COMPUTING THE
THEORETICAL MAXIMUM INCOME, THAT THE SURVIVING SPOUSE'S INCOME INTEREST
OF $300 MONTHLY REPRESENTED THE INVESTMENT OF 3/5 OF THE CORPUS. 
'SPECIFIC PORTION' WOULD THEN BE ACCURATELY DEFINED FOR MARITAL
DEDUCTION PURPOSES."  363 F.2D, AT 484, N. 17. 

THE COURT OF APPEALS CONCLUDED, HOWEVER, THAT THE COMPUTATION COULD
NOT BE MADE BECAUSE "THE MARKET CONDITIONS FOR PURPOSES OF INVESTMENT
ARE UNKNOWN" AND, THEREFORE, THERE ARE NO CONSTANT INVESTMENT FACTORS
TO USE IN COMPUTING THE MAXIMUM POSSIBLE MONTHLY INCOME OF THE WHOLE
CORPUS.  363 F.2D, AT 484. 

IT IS WITH THIS LATTER CONCLUSION THAT WE DISAGREE.  TO BE SURE,
PERFECT PREDICTION OF REALISTIC FUTURE RATES OF RETURN  (FN15)  IS NOT
POSSIBLE.  HOWEVER, THE USE OF PROJECTED RATES OF RETURN IN THE
ADMINISTRATION OF THE FEDERAL TAX LAWS IS HARDLY AN INNOVATION.  CF.
GELB V. COMMISSIONER, 298 F.2D 544, 551, N. 7 (C.A.2D CIR. 1962).  IT
SHOULD NOT BE A DIFFICULT MATTER TO SETTLE ON A RATE OF RETURN
AVAILABLE TO A TRUSTEE UNDER REASONABLE INVESTMENT CONDITIONS, WHICH
COULD BE USED TO COMPUTE THE "SPECIFIC PORTION" OF THE CORPUS WHOSE
INCOME IS EQUAL TO THE MONTHLY STIPEND PROVIDED FOR IN THE TRUST.  AS
THE COURT OF APPEALS FOR THE SECOND CIRCUIT OBSERVED IN GELB, SUPRA,
"THE USE OF ACTUARIAL TABLES FOR DEALING WITH ESTATE TAX PROBLEMS HAS
BEEN SO WIDESPREAD AND OF SUCH LONG STANDING THAT WE CANNOT ASSUME
CONGRESS WOULD HAVE BALKED AT IT HERE; THE UNITED STATES IS IN BUSINESS
WITH ENOUGH DIFFERENT TAXPAYERS SO THAT THE LAW OF AVERAGES HAS AMPLE
OPPORTUNITY TO WORK."  298 F.2D, AT 551-552.    THE GOVERNMENT
CONCEDES, AS IT MUST, THAT APPLICATION OF A PROJECTED RATE OF RETURN TO
DETERMINE THE "SPECIFIC PORTION" OF THE TRUST CORPUS WHOSE INCOME IS
EQUAL TO THE MONTHLY STIPEND ALLOTTED WILL NOT RESULT IN ANY OF THE
COMBINED MARITAL ESTATE ESCAPING ULTIMATE TAXATION IN EITHER THE
DECEDENT'S OR THE SURVIVING SPOUSE'S ESTATE.  THE GOVERNMENT ARGUES,
HOWEVER, THAT IF ANALOGOUS ACTUARIAL METHODS WERE USED TO COMPUTE AS A
FIXED DOLLAR AMOUNT THE "SPECIFIC PORTION" AS TO WHICH A QUALIFYING
POWER OF APPOINTMENT IS GIVEN, WHERE THE POWER IN FACT GRANTED EXTENDS
TO THE WHOLE CORPUS BUT THE CORPUS IS SUBJECT TO MEASURABLE INVASIONS
FOR THE BENEFIT, FOR EXAMPLE, OF A CHILD, THE RESULT, IN SOME CASES,
WOULD BE TO ENABLE SUBSTANTIAL AVOIDANCE OF ESTATE TAX.  WHETHER,
PROPERLY VIEWED, THE GOVERNMENT'S CLAIM HOLDS TRUE, AND, IF SO, WHAT
EFFECT THAT SHOULD HAVE UPON THE QUALIFICATION OF SUCH A TRUST, IS A
DIFFICULT MATTER.  NEEDLESS TO SAY, NOTHING WE HOLD IN THIS OPINION HAS
REFERENCE TO THAT QUITE DIFFERENT PROBLEM, WHICH IS NOT BEFORE US.  CF.
GELB V. COMMISSIONER, SUPRA. 

THE DISTRICT COURT USED AN ANNUITY-VALUATION APPROACH TO COMPUTE THE
"SPECIFIC PORTION."  THIS WAS INCORRECT.  THE QUESTION, AS THE COURT OF
APPEALS RECOGNIZED, IS TO DETERMINE THE AMOUNT OF THE CORPUS REQUIRED
TO PRODUCE THE FIXED MONTHLY STIPEND, NOT TO COMPUTE THE PRESENT VALUE
OF THE RIGHT TO MONTHLY PAYMENTS OVER AN ACTUARIALLY COMPUTED LIFE
EXPECTANCY.  ACCORDINGLY, WE REVERSE AND REMAND FOR FURTHER PROCEEDINGS
IN CONFORMITY WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  THE SECTION READS,  IN FULL: 

"(5)  LIFE ESTATE WITH POWER OF APPOINTMENT IN SURVIVING SPOUSE.  -
IN THE CASE OF AN INTEREST IN PROPERTY PASSING FROM THE DECEDENT, IF
HIS SURVIVING SPOUSE IS ENTITLED FOR LIFE TO ALL THE INCOME FROM THE
ENTIRE INTEREST, OR ALL THE INCOME FROM A SPECIFIC PORTION THEREOF,
PAYABLE ANNUALLY OR AT MORE FREQUENT INTERVALS, WITH POWER IN THE
SURVIVING SPOUSE TO APPOINT THE ENTIRE INTEREST, OR SUCH SPECIFIC
PORTION (EXERCISABLE IN FAVOR OF SUCH SURVIVING SPOUSE, OR OF THE
ESTATE OF SUCH SURVIVING SPOUSE, OR IN FAVOR OF EITHER, WHETHER OR NOT
IN EACH CASE THE POWER IS EXERCISABLE IN FAVOR OF OTHERS), AND WITH NO
POWER IN ANY OTHER PERSON TO APPOINT ANY PART OF THE INTEREST, OR SUCH
SPECIFIC PORTION, TO ANY PERSON OTHER THAN THE SURVIVING SPOUSE: 

"(A)  THE INTEREST OR SUCH PORTION THEREOF SO PASSING SHALL, FOR
PURPOSES OF SUBSECTION (A), BE CONSIDERED AS PASSING TO THE SURVIVING
SPOUSE, AND 

"(B)  NO PART OF THE INTEREST SO PASSING SHALL, FOR PURPOSES OF
PARAGRAPH (1)(A), BE CONSIDERED AS PASSING TO ANY PERSON OTHER THAN THE
SURVIVING SPOUSE. 

"THIS PARAGRAPH SHALL APPLY ONLY IF SUCH POWER IN THE SURVIVING
SPOUSE TO APPOINT THE ENTIRE INTEREST, OR SUCH SPECIFIC PORTION
THEREOF, WHETHER EXERCISABLE BY WILL OR DURING LIFE, IS EXERCISABLE BY
SUCH SPOUSE ALONE AND IN ALL EVENTS." 

FN2  THE TRUSTEE WAS ALSO GIVEN DISCRETION TO INVADE UP TO $1,500 OF
CORPUS IN THE EVENT OF THE WIDOW'S ILLNESS OR FINANCIAL EMERGENCY.  THE
RELEVANT PART OF THE WILL IS AS FOLLOWS: 

"ITEM 6.  I GIVE, DEVISE AND BEQUEATH ONE-HALF (1/2) OF ALL THE REST,
RESIDUE AND REMAINDER OF MY ESTATE, WHATSOEVER AND WHERESOEVER THE SAME
BE, BOTH REAL AND PERSONAL, TO WHICH I MAY BE ENTITLED, OR WHICH I MAY
HAVE POWER TO DISPOSE OF AT THE TIME OF MY DEATH, UNTO MY TRUSTEE
HEREINAFTER NAMED AND DESIGNATED, TO HAVE AND TO HOLD THE SAME IN
TRUST, NEVERTHELESS, AS HEREINAFTER PROVIDED. 

"(A)  I DIRECT MY TRUSTEE TO PAY OUT OF THE SAID INCOME AND CORPUS OF
THE SAID ESTATE UNTO MY WIFE, BEATRICE O. YOUNG, THE SUM OF THREE
HUNDRED DOLLARS ($300.00) PER MONTH FOR AND DURING THE PERIOD UNTIL MY
YOUNGEST CHILD REACHES THE AGE OF EIGHTEEN YEARS, AND THEREAFTER I
DIRECT MY TRUSTEE TO PAY TO MY WIFE, BEATRICE O. YOUNG, THE SUM OF
THREE HUNDRED FIFTY DOLLARS ($350.00) PER MONTH FOR AND DURING THE REST
OF HER NATURAL LIFE. 

"(B)  IF MY WIFE SURVIVES ME, SHE SHALL HAVE THE POWER, EXERCISABLE
BY WILL, TO APPOINT TO HER ESTATE, OR TO OTHERS, ANY OR ALL OF THE
PRINCIPAL REMAINING AT THE TIME OF HER DEATH.  IF MY WIFE FAILS TO
APPOINT THE ENTIRE PRINCIPAL TO HER ESTATE OR TO OTHERS AS ABOVE
AUTHORIZED, THEN UPON HER DEATH (OR IF SHE PREDECEASES ME, THEN UPON MY
DEATH) ANY PRINCIPAL REMAINING AT THAT TIME SHALL BE PAID OVER TO MY
CHILDREN ON THE SAME TERMS AND CONDITIONS AS UNDER ITEM 7 OF THIS MY
WILL." 

FN3  IN THE CITIZENS NATIONAL BANK CASE, DECEDENT DIRECTED THE
TRUSTEE TO PAY THE SURVIVING WIFE $200 PER MONTH FOR THE TWO YEARS
FOLLOWING HIS DEATH, AND THEREAFTER $300 PER MONTH; THE WIDOW WAS THE
SOLE BENEFICIARY.  THE DISTRICT DIRECTOR DISALLOWED THAT PART OF THE
EXECUTOR-BANK'S CLAIM TO AN ESTATE TAX MARITAL DEDUCTION BASED UPON THE
TRUST, AND THE BANK SUED FOR A REFUND.  THE DISTRICT COURT HELD IN
FAVOR OF THE BANK, AND COMPUTED THE ALLOWABLE DEDUCTION BY CAPITALIZING
THE $200 MONTHLY STIPEND AT AN ASSUMED 3 1/2% RATE OF RETURN.  THE
COURT OF APPEALS AFFIRMED, ONE JUDGE DISSENTING. 

THE DECISION OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN THE
PRESENT CASE IS ALSO IN APPARENT CONFLICT WITH A DECISION OF THE COURT
OF APPEALS FOR THE SECOND CIRCUIT IN GELB V. COMMISSIONER, 298 F.2D 544
(1962)(FRIENDLY, J.).  THE SURVIVING WIDOW IN GELB WAS ENTITLED TO ALL
THE INCOME FROM THE TRUST.  THE TRUSTEES (OF WHICH THE WIFE WAS ONE)
WERE EMPOWERED TO INVADE CORPUS UP TO $5,000 PER YEAR FOR THE EDUCATION
AND SUPPORT OF TESTATOR'S YOUNGEST DAUGHTER, THE PAYMENTS TO BE MADE TO
THE WIFE.  THE COURT OF APPEALS HELD THAT THE PRESENT WORTH OF THE
MAXIMUM AMOUNT PAYABLE TO THE DAUGHTER COULD BE COMPUTED ACTUARIALLY,
TAKING INTO ACCOUNT THE JOINT EXPECTANCY OF THE WIDOW AND DAUGHTER, AND
COULD THEN BE DEDUCTED FROM THE TOTAL TRUST CORPUS TO ARRIVE AT THE
"SPECIFIC PORTION" AS TO WHICH THE WIDOW WAS GIVEN A POWER OF
APPOINTMENT.  THE COURT OF APPEALS OBSERVED THAT "CONGRESS SPOKE OF A
'SPECIFIC PORTION,' NOT OF A 'FRACTIONAL OR PERCENTILE SHARE ...  ,'"
298 F.2D, AT 550-551, AND DISAPPROVED THE REGULATION "INSOFAR AS IT
WOULD LIMIT A 'SPECIFIC PORTION' TO 'A FRACTIONAL OR PERCENTILE
SHARE.'"  298 F.2D, AT 551. 

FN4  THE RELEVANT PART OF THE REGULATION IS AS FOLLOWS: 

"(C)  DEFINITION OF 'SPECIFIC PORTION.'  A PARTIAL INTEREST IN
PROPERTY IS NOT TREATED AS A SPECIFIC PORTION OF THE ENTIRE INTEREST
UNLESS THE RIGHTS OF THE SURVIVING SPOUSE IN INCOME AND AS TO THE POWER
CONSTITUTE A FRACTIONAL OR PERCENTILE SHARE OF A PROPERTY INTEREST SO
THAT SUCH INTEREST OR SHARE IN THE SURVIVING SPOUSE REFLECTS ITS
PROPORTIONATE SHARE OF THE INCREMENT OR DECLINE IN THE WHOLE OF THE
PROPERTY INTEREST TO WHICH THE INCOME RIGHTS AND THE POWER RELATE. 
THUS, IF THE RIGHT OF THE SPOUSE TO INCOME AND THE POWER EXTEND TO ONE
HALF OR A SPECIFIED PERCENTAGE OF THE PROPERTY, OR THE EQUIVALENT, THE
INTEREST IS CONSIDERED AS A SPECIFIC PORTION.  ON THE OTHER HAND, IF
THE ANNUAL INCOME OF THE SPOUSE IS LIMITED TO A SPECIFIC SUM, OR IF SHE
HAS A POWER TO APPOINT ONLY A SPECIFIC SUM OUT OF A LARGER FUND, THE
INTEREST IS NOT A DEDUCTIBLE INTEREST." 

FN5  BECAUSE THE MARITAL DEDUCTION IS COMPUTED AS OF THE DATE OF THE
DECEASED SPOUSE'S DEATH, JACKSON V. UNITED STATES, 376 U.S. 503, 508
(1964), THE PARTIES ARE AGREED THAT THE MONTHLY STIPEND TO BE
CONSIDERED IS $300 PER MONTH, NOT $350 PER MONTH. 

FN6  S. REP. NO. 1013, 80TH CONG., 2D SESS. (1948), P. 28. 

FN7  INTERNAL REVENUE CODE OF 1939, SEC 812(E)(1)(F), AS ADDED BY SEC
361 OF THE REVENUE ACT OF 1948, C. 168, 62 STAT. 118. 

FN8  SEE, E.G., ESTATE OF SHEDD V. COMMISSIONER, 237 F.2D 345 (C.A.
9TH CIR.), CERT. DENIED, 352 U.S. 1024 (1957); ESTATE OF SWEET V.
COMMISSIONER, 234 F.2D 401 (C.A. 10TH CIR.), CERT. DENIED, 352 U.S. 878
(1956).  SEE ALSO S. REP. NO. 1983, 85TH CONG., 2D SESS., (1958), PP.
240-241. 

FN9  H.R. REP. NO. 1337, 83D CONG., 2D SESS. (1954), P. 92. 

FN10  S. REP. NO. 1622, 83D CONG., 2D SESS. (1954), P. 125. 

FN11  TO BE SURE, THE TWO REPORTS DO GIVE AN EXAMPLE OF THE SIMPLEST
KIND OF TRUST COVERED BY THE CHANGE:  "FOR EXAMPLE, IF THE DECEDENT IN
HIS WILL PROVIDED FOR THE CREATION OF A TRUST UNDER THE TERMS OF WHICH
THE INCOME FROM ONE-HALF OF THE TRUST PROPERTY IS PAYABLE TO THIS
SURVIVING SPOUSE WITH UNCONTROLLED POWER IN THE SPOUSE TO APPOINT SUCH
ONE-HALF OF THE TRUST PROPERTY BY WILL, SUCH INTEREST WILL QUALIFY  ...
."  REPORTS, SUPRA, NN. 9 AND 10, AT A319, 475, RESPECTIVELY. 
OBVIOUSLY THIS EXAMPLE WAS NOT INTENDED TO LIMIT THE MEANING OF THE NEW
LANGUAGE. 

FN12  S. REP. NO. 1983, 85TH CONG., 2D SESS. (1958), P. 107. 

FN13  S. REP. NO. 1013, 80TH CONG., 2D SESS. PT. 2 (1948), P. 16. 

FN14  CF. NOTE, 19 STAN.  L. REV. 468, 470-472 (1967). 

FN15  AN ESTIMATED REALISTIC RATE OF RETURN WHICH A TRUSTEE COULD BE
EXPECTED TO OBTAIN UNDER REASONABLE INVESTMENT CONDITIONS MUST BE USED
ABSENT SPECIFIC RESTRICTIONS UPON THE TRUSTEE'S INVESTMENT POWERS - IN
ORDER TO ISOLATE THAT "PART OF THE CORPUS WHICH IN ALL  ...  REASONABLE
EVENTS" WILL PRODUCE NO MORE THAN THE MONTHLY STIPEND, TO PARAPHRASE
THE COURT BELOW.  363 F.2D, AT 483. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE BLACK AND MR. JUSTICE HARLAN
JOIN, DISSENTING. 

"RESOLUTION OF THE QUESTION IN THIS CASE, WHETHER A QUALIFYING
'SPECIFIC PORTION' CAN BE COMPUTED FROM THE MONTHLY STIPEND SPECIFIED
IN A DECEDENT'S WILL, IS," SAYS THE COURT, "ESSENTIALLY A MATTER OF
DISCOVERING THE INTENT OF CONGRESS."  ANTE, P. 219.  SUBSTITUTING
"EXCLUSIVELY" FOR "ESSENTIALLY," I ENTIRELY AGREE WITH THE COURT'S
STATEMENT OF THE CASE.  "THE DEDUCTION WAS ENACTED IN 1948, AND THE
UNDERLYING PURPOSE WAS TO EQUALIZE THE INCIDENCE OF THE ESTATE TAX IN
COMMUNITY PROPERTY AND COMMON-LAW JURISDICTIONS."  ANTE, P. 219.  AGAIN
I AGREE.  BUT I MUST DIFFER WITH THE COURT IN ITS DETERMINATION THAT
THE INTENT OF CONGRESS LEADS TO THE RESULT THE COURT TODAY REACHES. 
FOR ALLOWING THE TRUST BEFORE US TO QUALIFY FOR THE MARITAL DEDUCTION
WILL INEVITABLY LEAD TO THE IRONIC AND UNJUSTIFIED RESULT OF GIVING
COMMON-LAW JURISDICTIONS MORE FAVORABLE TAX TREATMENT THAN COMMUNITY
PROPERTY STATES. 

THE COURT HOLDS THAT THE WIDOW IN THIS CASE HAD AN INTEREST IN "ALL
THE INCOME FROM A SPECIFIC PORTION" OF THE TRUST BECAUSE THE STREAM OF
PAYMENTS TO HER COULD BE CAPITALIZED BY THE USE OF ASSUMED INTEREST
RATES.  THIS CAPITALIZED SUM IS THEN SAID TO CONSTITUTE THE "SPECIFIC
PORTION" WHICH QUALIFIES FOR THE MARITAL DEDUCTION.  A COROLLARY OF THE
COURT'S THEORY IS THAT A TRUST WHICH GAVE THE WIDOW THE RIGHT TO THE
INCOME FROM A FIXED AMOUNT (IN DOLLARS) OF CORPUS AND THE RIGHT TO
APPOINT THE ENTIRE CORPUS WOULD SUPPORT A MARITAL DEDUCTION.  (FN1)
BUT IF SUCH A BEQUEST QUALIFIES, THEN ONE WHICH LIMITS HER POWER OF
APPOINTMENT TO ONLY THAT AMOUNT OF CORPUS WITH RESPECT TO WHICH SHE HAS
INCOME RIGHTS WILL ALSO QUALIFY FOR THE MARITAL DEDUCTION.  FOR UNDER
THE STATUTE, THE SURVIVOR MUST HAVE ONLY THE RIGHT TO "ALL THE INCOME
FROM A SPECIFIC PORTION  ...  WITH POWER IN THE SURVIVING SPOUSE TO
APPOINT  ...  SUCH SPECIFIC PORTION."  (FN2)  THE WAY IN WHICH SUCH AN
ESTATE ALLOWS A TAX AVOIDANCE SCHEME NOT AVAILABLE TO A COMMUNITY
PROPERTY COUPLE CAN BE EASILY ILLUSTRATED. 

ASSUME A TRUST ESTATE OF $200,000, WITH THE WIDOW RECEIVING THE RIGHT
TO THE INCOME FROM $100,000 OF ITS CORPUS AND A POWER OF APPOINTMENT
OVER THAT $100,000, AND THE CHILDREN OF THE TESTATOR RECEIVING INCOME
FROM THE BALANCE OF THE CORPUS DURING THE WIDOW'S LIFE, THEIR
REMAINDERS TO VEST WHEN SHE DIES.  NOW SUPPOSE THAT WHEN THE WIDOW DIES
THE TRUST CORPUS HAS DOUBLED IN VALUE TO $400,000.  THE WIFE'S POWER OF
APPOINTMENT OVER $100,000 APPLIES ONLY TO MAKE $100,000 TAXABLE TO HER
ESTATE.  (FN3)  THE REMAINING $300,000 PASSES TAX FREE TO THE
CHILDREN.  CONTRAST THE SITUATION IN A COMMUNITY PROPERTY STATE.  THE
WIFE'S 50% INTEREST IN THE COMMUNITY PROPERTY PLACES $200,000 OF THE
EXPANDED ASSETS IN HER ESTATE AND TAXABLE AS SUCH; ONLY $200,000,
THEREFORE, PASSES DIRECTLY TO THE CHILDREN.  THUS, THE COURT'S
INTERPRETATION OF "SPECIFIC PORTION" AFFORDS COMMON-LAW ESTATES A
SIGNIFICANT TAX ADVANTAGE THAT COMMUNITY PROPERTY DISPOSITIONS CANNOT
OBTAIN. 

BY CHANGING "SPECIFIC PORTION" FROM THE FRACTIONAL SHARE, WHICH IS
BOTH DESCRIBED IN THE TREASURY REGULATION AND USED AS THE BASIS FOR
COMMUNITY PROPERTY OWNERSHIP, INTO A LUMP SUM BEARING NO CONSTANT
RELATION TO THE CORPUS, THE COURT ALLOWS CAPITAL APPRECIATION TO BE
TRANSFERRED FROM THE WIFE'S TO THE CHILDREN'S INTEREST IN THE ESTATE
WITHOUT ANY TAX CONSEQUENCE.  THUS, TODAY'S DECISION IS DIRECTLY
OPPOSED TO WHAT WE HAVE PREVIOUSLY RECOGNIZED AS THE PURPOSE OF THE
MARITAL DEDUCTION: 

"THE PURPOSE  ...  IS ONLY TO PERMIT A MARRIED COUPLE'S PROPERTY TO
BE TAXED IN TWO STAGES AND NOT TO ALLOW A TAX-EXEMPT TRANSFER OF WEALTH
INTO SUCCEEDING GENERATIONS.  THUS THE MARITAL DEDUCTION IS GENERALLY
RESTRICTED TO THE TRANSFER OF PROPERTY INTERESTS THAT WILL BE
INCLUDIBLE IN THE SURVIVING SPOUSE'S GROSS ESTATE."  UNITED STATES V.
STAPF, 375 U.S. 118, 128. 

THE REFERENCE IN THE LEGISLATIVE HISTORY OF THE 1948 ACT TO THE
WIFE'S "VIRTUAL OWNERSHIP" OF THE INTEREST QUALIFYING FOR THE DEDUCTION
IS EXPLAINED BY THE PURPOSE DISCERNED IN STAPF, SUPRA.  (FN4) FOR ONLY
IF SHE IS THE "VIRTUAL OWNER," WILL THE WIFE'S INTEREST APPRECIATE WITH
THE REST OF THE TRUST.  SIMILARLY, THE CONGRESSIONAL COMMITTEE REPORTS,
IN LIMITING THEIR EXAMPLES OF "SPECIFIC PORTIONS" TO FRACTIONAL SHARES,
MANIFEST AN UNDERSTANDING THAT NO TAX AVOIDANCE WAS TO BE ALLOWED VIA
THE MARITAL DEDUCTION.  (FN5)  IN NO OTHER MANNER COULD CONGRESS HAVE
"EQUALIZED THE INCIDENCE OF THE ESTATE TAX IN COMMUNITY PROPERTY AND
COMMON-LAW JURISDICTIONS," AS THE COURT SO APTLY PUTS IT.    IN RULING
AS IT DOES TODAY THE COURT NOT ONLY FRUSTRATES THE BASIC PURPOSES OF
THE MARITAL DEDUCTION, IT ALSO IGNORES OR BRUSHES ASIDE GUIDEPOSTS FOR
DECIDING TAX CASES THAT HAVE BEEN CAREFULLY ESTABLISHED IN PRIOR
DECISIONS OF THIS COURT.  THUS, A 10-YEAR-OLD INTERPRETATION OF THE
STATUTE CONTAINED IN THE TREASURY REGULATIONS IS HELD INVALID, ALTHOUGH
WE HAVE CONSISTENTLY GIVEN GREAT WEIGHT TO THOSE REGULATIONS IN THE
INTERPRETATION OF TAX STATUTES.  SEE, E.G., UNITED STATES V. STAPF, 375
U.S. 118, 127, N. 11. 

OF EVEN GREATER IMPORTANCE IS THE SHARP CHANGE OF ATTITUDE TOWARD THE
MARITAL DEDUCTION WHICH TODAY'S DECISION HERALDS.  THE TREASURY'S
INTERPRETATION OF "SPECIFIC PORTION" IS HELD INVALID BECAUSE "CONGRESS'
INTENT WAS TO AFFORD A LIBERAL 'ESTATE-SPLITTING' POSSIBILITY."  THIS
FINDING OF "LIBERALISM" IN THE MARITAL DEDUCTION LEADS THE COURT TO
REASON THAT "PLAINLY SUCH A PROVISION SHOULD NOT BE CONSTRUED SO AS TO
IMPOSE UNWARRANTED RESTRICTIONS UPON THE AVAILABILITY OF THE
DEDUCTION."  ANTE, P. 221.  BUT WE HAVE PREVIOUSLY CONSTRUED THE
MARITAL DEDUCTION TO MEAN WHAT IT SAYS AND HAVE NOT DISCERNED A LIBERAL
INTENT THAT ALLOWS US TO WRITE NEW WORDS INTO THE STATUTE, AS THE COURT
DOES HERE IN CHANGING "SPECIFIC PORTION" TO "ASCERTAINABLE AMOUNT." 
FOR EXAMPLE, IN JACKSON V. UNITED STATES, 376 U.S. 503, 510, EIGHT
MEMBERS OF THE COURT, SPEAKING THROUGH MR. JUSTICE WHITE, DECLARED THAT
"THE MARITAL DEDUCTION  ...  WAS KNOWINGLY HEDGED WITH LIMITATIONS" BY
CONGRESS, AND "TO THE EXTENT IT WAS THOUGHT DESIRABLE TO MODIFY THE
RIGORS OF SUCH LIMITATIONS, EXCEPTIONS  ...  WERE WRITTEN INTO THE
CODE."  THUS, THE LESSON ANNOUNCED IN JACKSON, BUT IGNORED TODAY, WAS
THAT "COURTS SHOULD HESITATE TO PROVIDE (OTHER EXCEPTIONS) BY STRAYING
SO FAR FROM THE STATUTORY LANGUAGE."  CF. MEYER V. UNITED STATES, 364
U.S. 410.  ONE LOOKS IN VAIN THROUGH THE JACKSON, MEYER, AND STAPF
OPINIONS, SUPRA, FOR THE ROOTS OF THE LIBERALISM WHICH THE COURT TODAY
FINDS BURSTING FORTH FROM THE MARITAL DEDUCTION. 

WITH THIS CHANGE IN APPROACH, UNCERTAINTY IS NOW INTRODUCED INTO ONE
OF THE AREAS OF THE LAW WHERE LONG-RANGE RELIANCE UPON THE MEANING OF A
STATUTE IS ESSENTIAL.  ESTATE PLANNERS AND TAX LAWYERS ARE TECHNICIANS
SCHOOLED TO VIEW THE MARITAL DEDUCTION AS A TIGHTLY DRAWN, PRECISE
PROVISION.  THEY ARE NOW SHOWN A TOTALLY NEW STATUTE THAT IS TO BE
CONSTRUED IN THE MANNER OF A WORKMAN'S COMPENSATION ACT.  SEE JACKSON
V. LYKES BROS.  S.S. CO., 386 U.S. 731.  SUCH A CONSTRUCTION WILL
HARDLY PROMOTE "THE ACHIEVEMENT OF THE PURPOSES OF THE MARITAL
DEDUCTION WHICH IS DEPENDENT TO A GREAT DEGREE UPON THE CAREFUL
DRAFTING OF WILLS."  JACKSON V. UNITED STATES, 376 U.S., AT 511. 

BELIEVING TODAY'S DECISION TO BE AT ODDS WITH THE STATUTORY PURPOSE
AND THE CONSISTENT INTERPRETATION OF THE MARITAL DEDUCTION, I
RESPECTFULLY DISSENT. 

FN1  THE ONLY DIFFERENCE BETWEEN A TRUST WHICH GIVES THE WIFE INCOME
FROM A FIXED AMOUNT OF CORPUS AND THE ONE THE COURT HAS BEFORE IT TODAY
IS THAT THE FORMER DOES NOT REQUIRE CAPITALIZING A STREAM OF PAYMENTS
INTO A LUMP SUM, SINCE IT DEFINES THE SUM AT THE OUTSET.  NEITHER OF
THESE TRUSTS WOULD QUALIFY FOR THE MARITAL DEDUCTION UNDER CURRENT
TREASURY REGULATIONS: 

"DEFINITION OF 'SPECIFIC PORTION.'  A PARTIAL INTEREST IN PROPERTY IS
NOT TREATED AS A SPECIFIC PORTION OF THE ENTIRE INTEREST UNLESS THE
RIGHTS OF THE SURVIVING SPOUSE  ...  CONSTITUTE A FRACTIONAL OR
PERCENTILE SHARE OF A PROPERTY INTEREST SO THAT SUCH INTEREST OR SHARE
...  REFLECTS ITS PROPORTIONATE SHARE OF THE INCREMENT OR DECLINE IN
THE WHOLE OF THE PROPERTY INTEREST  ...  . IF THE ANNUAL INCOME OF THE
SPOUSE IS LIMITED TO A SPECIFIC SUM, OR IF SHE HAS A POWER TO APPOINT
ONLY A SPECIFIC SUM OUT OF A LARGER FUND, THE INTEREST IS NOT A
DEDUCTIBLE INTEREST."  TREAS. REG. SEC 20.2056(B)-5(C). 

FN2  THE COURT DESCRIBES THE "SPECIFIC PORTION" OVER WHICH THE WIFE
HAS A POWER OF APPOINTMENT AS INVOLVING A "QUITE DIFFERENT PROBLEM"
FROM THE QUESTION DIRECTLY BEFORE US TODAY.  ANTE, P. 225.  BUT UNLESS
IT COULD BE HELD THAT "SUCH SPECIFIC PORTION" DOES NOT REFER TO "A
SPECIFIC PORTION" (AND I DO NOT SEE HOW SUCH A HOLDING IS POSSIBLE),
THE WAY IN WHICH THE COURT DEFINES "SPECIFIC PORTION" WITH REGARD TO
THE SURVIVOR'S INCOME RIGHTS WILL INEVITABLY AFFECT THE MEANING OF
"SPECIFIC PORTION" WITH REGARD TO THE POWER OF APPOINTMENT. 

FN3  SECTION 2041 OF THE INTERNAL REVENUE CODE OF 1954. 

FN4  S. REP. NO. 1013, 80TH CONG., 2D SESS., PT. 2, P. 16 (1948). 

FN5  H.R. REP. NO. 1337, 83D CONG., 2D SESS., P. A319 (1954); S. REP.
NO. 1622, 83D CONG., 2D SESS., P. 475 (1954). 
..END :


















HOFFA V. UNITED STATES 387 U.S. 231 


NO. 1003.  DECIDED MAY 22, 1967.  - CERTIORARI GRANTED; 367 F.2D 698,
VACATED AND REMANDED. 


PETITIONERS WERE CONVICTED OF VARIOUS COUNTS UNDER AN INDICTMENT
CHARGING MAIL AND WIRE FRAUD AND CONSPIRACY, INVOLVING THE DEFRAUDING
OF A UNION PENSION FUND TO REHABILITATE SUN VALLEY, INC., AN ENTERPRISE
IN WHICH CERTAIN PETITIONERS HAD INTERESTS.  THE SOLICITOR GENERAL HAS
ADVISED THAT:  SIX MONTHS AFTER THE INDICTMENT A CONVERSATION BETWEEN
PETITIONER BURRIS AND ONE SIGELBAUM WAS OVERHEARD BY FBI AGENTS THROUGH
ELECTRONIC EAVESDROPPING; THE CONVERSATION CONCERNED THE PROPOSED
TRANSFER TO SIGELBAUM OF BURRIS' INTEREST IN SUN VALLEY, AND THE
CONDUCT OF THE DEFENSE TO THIS PROSECUTION; THE INFORMATION WAS NOT
INTRODUCED INTO EVIDENCE OR USED AS AN INVESTIGATIVE LEAD; IT WAS ONLY
PERIPHERALLY RELEVANT TO THE CHARGES AND WAS PARTLY KNOWN THROUGH
BURRIS' STATEMENTS TO GOVERNMENT ATTORNEYS.  HELD:  SINCE THERE WAS
APPARENTLY NO DIRECT INTRUSION INTO ATTORNEY-CLIENT DISCUSSIONS, THERE
IS NOW NO ADEQUATE JUSTIFICATION TO REQUIRE A NEW TRIAL FOR BURRIS OR
ANY OTHER PETITIONER.  THE CASE IS REMANDED TO THE DISTRICT COURT FOR A
HEARING, FINDINGS, AND CONCLUSIONS ON THE NATURE AND RELEVANCE TO ALL
THESE CONVICTIONS OF THE RECORDED CONVERSATION, AND OF ANY OTHER
CONVERSATIONS THAT MAY BE SHOWN TO HAVE BEEN SIMILARLY OVERHEARD. 
UNITED STATES V. SHOTWELL MFG. CO., 355 U.S. 233. 

HOFFA ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

PETITIONERS WERE CONVICTED OF VARIOUS COUNTS UNDER A 28-COUNT
INDICTMENT CHARGING MAIL AND WIRE FRAUD, IN VIOLATION OF 18 U.S.C. SECS
1341, 1343, AND CONSPIRACY, IN VIOLATION OF 18 U.S.C. SEC 371.  THE
UNITED STATES CLAIMED, AND THE JURY APPARENTLY FOUND, THAT PETITIONERS
CONSPIRED TO DEFRAUD, AND DID DEFRAUD, THE CENTRAL STATES, SOUTHEAST
AND SOUTHWEST AREAS PENSION FUND OF THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, WITH THE PRIME OBJECTIVE OF FINANCIALLY REHABILITATING SUN
VALLEY, INC., A REAL ESTATE ENTERPRISE IN WHICH CERTAIN OF THE
PETITIONERS HAD IMPORTANT INTERESTS.  FOR REASONS WHICH FOLLOW, WE DO
NOT REACH, ONE WAY OR THE OTHER, ANY OF THE CONTENTIONS URGED BY
PETITIONERS IN SUPPORT OF THEIR PETITION FOR A WRIT OF CERTIORARI. 

IN RESPONSE TO THE PETITION, THE SOLICITOR GENERAL SUA SPONTE HAS
ADVISED THE COURT THAT ON DECEMBER 2, 1963, SOME SIX MONTHS AFTER THE
INDICTMENT IN THIS CASE, A CONVERSATION BETWEEN PETITIONER BURRIS AND
ONE BENJAMIN SIGELBAUM, NOT A DEFENDANT IN THIS PROSECUTION, WAS
OVERHEARD BY AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION AS A RESULT
OF ELECTRONIC EAVESDROPPING.  THE EAVESDROPPING EQUIPMENT HAD BEEN
INSTALLED IN SIGELBAUM'S OFFICE, BY TRESPASS, SOME 12 MONTHS BEFORE
THIS CONVERSATION, AND THEREAFTER HAD BEEN MAINTAINED IN OPERATION.  WE
ARE INFORMED BY THE SOLICITOR GENERAL THAT THE RECORDED CONVERSATION
WAS CONCERNED BOTH WITH THE PROPOSED TRANSFER TO SIGELBAUM OF BURRIS'
INTEREST IN SUN VALLEY, AND WITH THE CONDUCT OF THE DEFENSE TO THIS
PROSECUTION.  THE SOLICITOR GENERAL HAS INDICATED THAT THE CONTENTS OF
THE RECORDING WERE AVAILABLE TO GOVERNMENT ATTORNEYS INVOLVED IN THIS
PROSECUTION, BUT ADDS THAT THE RECORDING WAS ONLY "PERIPHERALLY
RELEVANT TO THE CHARGES UNDERLYING BURRIS' CONVICTION."*  WE ARE,
MOREOVER, ADVISED BY HIM THAT THE INFORMATION OBTAINED THROUGH THIS
ELECTRONIC EAVESDROPPING WAS NOT INTRODUCED INTO EVIDENCE AT TRIAL,
THAT IT WAS NEVER THE BASIS OF ANY INVESTIGATIVE LEAD, AND THAT IT WAS
IN PART ALREADY KNOWN, THROUGH BURRIS' OWN STATEMENTS, TO GOVERNMENT
ATTORNEYS.  UNLIKE THE SITUATIONS IN BLACK V. UNITED STATES, 385 U.S.
26, AND O'BRIEN V. UNITED STATES, 386 U.S. 345, THERE WAS APPARENTLY NO
DIRECT INTRUSION HERE INTO ATTORNEY-CLIENT DISCUSSIONS.  IN THESE
CIRCUMSTANCES, WE FIND NO "ADEQUATE JUSTIFICATION," BLACK V. UNITED
STATES, SUPRA, AT 29, NOW TO REQUIRE A NEW TRIAL OF BURRIS OR OF ANY OF
THE OTHER PETITIONERS; THE MORE ORDERLY AND APPROPRIATE PROCEDURE IS
INSTEAD TO REMAND THE CASE TO THE DISTRICT COURT FOR A HEARING,
FINDINGS, AND CONCLUSIONS ON THE NATURE AND RELEVANCE TO THESE
CONVICTIONS OF THE RECORDED CONVERSATION, AND OF ANY OTHER
CONVERSATIONS THAT MAY BE SHOWN TO HAVE BEEN OVERHEARD THROUGH SIMILAR
EAVESDROPPING.  UNITED STATES V. SHOTWELL MFG. CO., 355 U.S. 233. 

*BRIEF FOR THE UNITED STATES IN OPPOSITION 70. 

WE DO NOT ACCEPT THE SOLICITOR GENERAL'S SUGGESTION THAT SUCH AN
INQUIRY SHOULD BE CONFINED TO THE CONVICTION OF BURRIS.  WE CONSIDER IT
MORE APPROPRIATE THAT EACH OF THESE PETITIONERS BE PROVIDED AN
OPPORTUNITY TO ESTABLISH, IF HE CAN, THAT THE INTERCEPTION OF THIS
PARTICULAR CONVERSATION, OR OF OTHER CONVERSATIONS, VITIATED IN SOME
MANNER HIS CONVICTION.  WE DO NOT INTEND BY THIS TO SUGGEST THAT ANY OR
ALL OF THE PETITIONERS MIGHT, UNDER THE CIRCUMSTANCES DESCRIBED BY THE
SOLICITOR GENERAL, BE ENTITLED TO A NEW TRIAL; WE DECIDE ONLY THAT
FURTHER PROCEEDINGS MUST BE HELD, AND FINDINGS AND CONCLUSIONS MADE, TO
DETERMINE THE CONTENT AND PERTINENCE TO THIS CASE OF ANY SUCH RECORDED
CONVERSATIONS. 

ACCORDINGLY, WE GRANT THE PETITION FOR A WRIT OF CERTIORARI AS TO
EACH OF THE PETITIONERS, VACATE THE JUDGMENT OF THE COURT OF APPEALS,
AND REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.  IN
SUCH PROCEEDINGS, THE DISTRICT COURT WILL CONFINE THE EVIDENCE
PRESENTED BY BOTH SIDES TO THAT WHICH IS MATERIAL TO QUESTIONS OF THE
CONTENT OF THIS AND ANY OTHER ELECTRONICALLY EAVESDROPPED
CONVERSATIONS, AND OF THE RELEVANCE OF ANY SUCH CONVERSATIONS TO
PETITIONERS' SUBSEQUENT CONVICTIONS.  THE DISTRICT COURT WILL MAKE SUCH
FINDINGS OF FACT ON THESE QUESTIONS AS MAY BE APPROPRIATE IN LIGHT OF
THE FURTHER EVIDENCE AND OF THE ENTIRE EXISTING RECORD.  IF THE
DISTRICT COURT DECIDES, ON THE BASIS OF SUCH FINDINGS, THAT THE
CONVICTION OF ANY OF THE PETITIONERS WAS NOT TAINTED BY THE USE OF
EVIDENCE THUS IMPROPERLY OBTAINED, IT WILL ENTER NEW FINAL JUDGMENTS AS
TO SUCH PETITIONERS BASED ON THE EXISTING RECORD AS SUPPLEMENTED BY ITS
FURTHER FINDINGS, THEREBY PRESERVING TO ALL AFFECTED PARTIES THE RIGHT
TO SEEK FURTHER APPROPRIATE APPELLATE REVIEW.  IF, ON THE OTHER HAND,
THE DISTRICT COURT CONCLUDES AFTER SUCH FURTHER PROCEEDINGS THAT THE
CONVICTION OF ANY OF THE PETITIONERS WAS TAINTED, IT WOULD THEN BECOME
ITS DUTY TO ACCORD ANY SUCH PETITIONER A NEW TRIAL.  SEE UNITED STATES
V. SHOTWELL MFG. CO., SUPRA, AT 245-246; SEE ALSO SHOTWELL MFG. CO. V.
UNITED STATES, 371 U.S. 341. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED, AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

MR. JUSTICE BLACK WOULD GRANT CERTIORARI AND SET THE CASE FOR
ARGUMENT.  HE DISSENTS FROM THE VACATION OF THE JUDGMENT OF THE COURT
OF APPEALS AND FROM THE REMAND OF THE CASE TO THE DISTRICT COURT. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :

















KRAKOFF V. WEAVER 387 U.S. 235 


NO. 1174.  DECIDED MAY 22, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


KRAKOFF, ADMINISTRATOR V. WEAVER ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















TENNESSEE V. CLARKSVILLE 387 U.S. 235 


NO. 1182.  DECIDED MAY 22, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


TENNESSEE EX REL. NEW PROVIDENCE UTILITY DISTRICT ET AL. V. CITY OF
CLARKSVILLE ET AL. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















WALKER V. WAINWRIGHT 387 U.S. 236 


NO. 354, MISC. DECIDED MAY 22, 1967.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


WALKER V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF FLORIDA FOR FURTHER
CONSIDERATION IN LIGHT OF ANDERS V. CALIFORNIA, 386 U.S. 738. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART ARE OF
THE OPINION THAT CERTIORARI SHOULD BE DENIED. 
..END :












CHEWIE V. LOCK 387 U.S. 236 


NO. 1530, MISC.  DECIDED MAY 22, 1967.  - 261 F. SUPP. 830, APPEAL
DISMISSED. 


CHEWIE V. LOCK, COUNTY ATTORNEY, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OKLAHOMA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :

















MASCUILLI V. UNITED STATES 387 U.S. 237 


NO. 274.  DECIDED MAY 22, 1967.  - CERTIORARI GRANTED; 358 F.2D 133,
REVERSED. 


MASCUILLI, ADMINISTRATRIX V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96; CRUMADY V. THE
JOACHIM HENDRIK FISSER, 358 U.S. 423. 

MR. JUSTICE HARLAN, MR. JUSTICE STEWART, AND MR. JUSTICE WHITE ARE OF
THE OPINION THAT CERTIORARI SHOULD BE DENIED. 
..END :












UNITED STATES V. MARSHALL & ILSLEY 387 U.S. 238 


NO. 1017.  DECIDED MAY 22, 1967.  - 255 F. SUPP. 273, REVERSED. 


UNITED STATES V. MARSHALL & ILSLEY BANK STOCK CORP. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF WISCONSIN. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  SECTION 11(E) OF THE BANK HOLDING COMPANY
ACT OF 1956, AS AMENDED, 80 STAT. 241; UNITED STATES V. FIRST CITY
NATIONAL BANK OF HOUSTON, 386 U.S. 361. 
..END :
















MESSNER V. SPAHN 387 U.S. 239 


NO. 1154.  DECIDED MAY 22, 1967.  - 18 N.Y.2D 324, 221 N.E.2D 543,
VACATED AND REMANDED. 


JULIAN MESSNER, INC., ET AL. V. SPAHN. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION OF THE AUTHORS LEAGUE OF AMERICA, INC., FOR LEAVE TO FILE
A BRIEF, AS AMICUS CURIAE, IS GRANTED. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT OF
APPEALS OF NEW YORK FOR FURTHER CONSIDERATION IN LIGHT OF TIME, INC. V.
HILL, 385 U.S. 374. 

THE CHIEF JUSTICE AND MR. JUSTICE FORTAS WOULD DISMISS THE APPEAL FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :










GREENE V. TEXAS 387 U.S. 240 


NO. 1199.  DECIDED MAY 22, 1967.  - 406 S.W.2D 465, APPEAL DISMISSED AND
CERTIORARI DENIED. 


GREENE V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BELCHER V. WISCONSIN 387 U.S. 241 


NO. 24, MISC.  DECIDED MAY 22, 1967.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


BELCHER V. WISCONSIN 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF WISCONSIN FOR FURTHER
CONSIDERATION IN LIGHT OF ANDERS V. CALIFORNIA, 386 U.S. 738. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART ARE OF
THE OPINION THAT CERTIORARI SHOULD BE DENIED. 
..END :











FRAZIER V. LANE 387 U.S. 242 


NO. 33, MISC.  DECIDED MAY 22, 1967.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


FRAZIER V. LANE, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF LONG V. DISTRICT COURT OF
IOWA IN AND FOR LEE COUNTY, 385 U.S. 192. 
..END :













BARNETT V. NEVADA 387 U.S. 243 


NO. 48, MISC.  DECIDED MAY 22, 1967.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


BARNETT V. NEVADA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NEVADA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF NEVADA FOR FURTHER
CONSIDERATION IN LIGHT OF ANDERS V. CALIFORNIA, 386 U.S. 738, AND LONG
V. DISTRICT COURT OF IOWA IN AND FOR LEE COUNTY, 385 U.S. 192. 
..END :














IN RE GAULT 387 U.S. 1 


NO. 116.  ARGUED DECEMBER 6, 1966.  - DECIDED MAY 15, 1967.  - 99 ARIZ.
181, 407 P.2D 760, REVERSED AND REMANDED. 


APPELLANTS' 15-YEAR-OLD SON, GERALD GAULT, WAS TAKEN INTO CUSTODY AS
THE RESULT OF A COMPLAINT THAT HE HAD MADE LEWD TELEPHONE CALLS.  AFTER
HEARINGS BEFORE A JUVENILE COURT JUDGE, GERALD WAS ORDERED COMMITTED TO
THE STATE INDUSTRIAL SCHOOL AS A JUVENILE DELINQUENT UNTIL HE SHOULD
REACH MAJORITY.  APPELLANTS BROUGHT A HABEAS CORPUS ACTION IN THE STATE
COURTS TO CHALLENGE THE CONSTITUTIONALITY OF THE ARIZONA JUVENILE CODE
AND THE PROCEDURE ACTUALLY USED IN GERALD'S CASE, ON THE GROUND OF
DENIAL OF VARIOUS PROCEDURAL DUE PROCESS RIGHTS.  THE STATE SUPREME
COURT AFFIRMED DISMISSAL OF THE WRIT.  AGREEING THAT THE CONSTITUTIONAL
GUARANTEE OF DUE PROCESS APPLIES TO PROCEEDINGS IN WHICH JUVENILES ARE
CHARGED AS DELINQUENTS, THE COURT HELD THAT THE ARIZONA JUVENILE CODE
IMPLIEDLY INCLUDES THE REQUIREMENTS OF DUE PROCESS IN DELINQUENCY
PROCEEDINGS, AND THAT SUCH DUE PROCESS REQUIREMENTS WERE NOT OFFENDED
BY THE PROCEDURE LEADING TO GERALD'S COMMITMENT.  HELD: 

1.  KENT V. UNITED STATES, 383 U.S. 541, 562 (1966), HELD "THAT THE
WAIVER HEARING MUST MEASURE UP TO THE ESSENTIALS OF DUE PROCESS AND
FAIR TREATMENT."  THIS VIEW IS REITERATED, HERE IN CONNECTION WITH A
JUVENILE COURT ADJUDICATION OF "DELINQUENCY," AS A REQUIREMENT WHICH IS
PART OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF OUR
CONSTITUTION.  THE HOLDING IN THIS CASE RELATES ONLY TO THE
ADJUDICATORY STAGE OF THE JUVENILE PROCESS, WHERE COMMITMENT TO A STATE
INSTITUTION MAY FOLLOW.  WHEN PROCEEDINGS MAY RESULT IN INCARCERATION
IN AN INSTITUTION OF CONFINEMENT, "IT WOULD BE EXTRAORDINARY IF OUR
CONSTITUTION DID NOT REQUIRE THE PROCEDURAL REGULARITY AND EXERCISE OF
CARE IMPLIED IN THE PHRASE 'DUE PROCESS.'"  PP. 12,-31. 

2.  DUE PROCESS REQUIRES, IN SUCH PROCEEDINGS, THAT ADEQUATE WRITTEN
NOTICE BE AFFORDED THE CHILD AND HIS PARENTS OR GUARDIAN.  SUCH NOTICE
MUST INFORM THEM "OF THE SPECIFIC ISSUES THAT THEY MUST MEET" AND MUST
BE GIVEN "AT THE EARLIEST PRACTICABLE TIME, AND IN ANY EVENT
SUFFICIENTLY IN ADVANCE OF THE HEARING TO PERMIT PREPARATION."  NOTICE
HERE WAS NEITHER TIMELY NOR ADEQUATELY SPECIFIC, NOR WAS THERE WAIVER
OF THE RIGHT TO CONSTITUTIONALLY ADEQUATE NOTICE.  PP. 31-34. 

3.  IN SUCH PROCEEDINGS THE CHILD AND HIS PARENTS MUST BE ADVISED OF
THEIR RIGHT TO BE REPRESENTED BY COUNSEL AND, IF THEY ARE UNABLE TO
AFFORD COUNSEL, THAT COUNSEL WILL BE APPOINTED TO REPRESENT THE CHILD. 
MRS. GAULT'S STATEMENT AT THE HABEAS CORPUS HEARING THAT SHE HAD KNOWN
SHE COULD EMPLOY COUNSEL, IS NOT "AN 'INTENTIONAL RELINQUISHMENT OR
ABANDONMENT' OF A FULLY KNOWN RIGHT."  PP. 34-42. 

4.  THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION IS
APPLICABLE IN SUCH PROCEEDINGS: "AN ADMISSION BY THE JUVENILE MAY NOT
BE USED AGAINST HIM IN THE ABSENCE OF CLEAR AND UNEQUIVOCAL EVIDENCE
THAT THE ADMISSION WAS MADE WITH KNOWLEDGE THAT HE WAS NOT OBLIGED TO
SPEAK AND WOULD NOT BE PENALIZED FOR REMAINING SILENT."  "THE
AVAILABILITY OF THE PRIVILEGE DOES NOT TURN UPON THE TYPE OF PROCEEDING
IN WHICH ITS PROTECTION IS INVOKED, BUT UPON THE NATURE OF THE
STATEMENT OR ADMISSION AND THE EXPOSURE WHICH IT INVITES  ...  .
JUVENILE PROCEEDINGS TO DETERMINE 'DELINQUENCY,' WHICH MAY LEAD TO
COMMITMENT TO A STATE INSTITUTION, MUST BE REGARDED AS 'CRIMINAL' FOR
PURPOSES OF THE PRIVILEGE AGAINST SELF-INCRIMINATION."  FURTHERMORE,
EXPERIENCE HAS SHOWN THAT "ADMISSIONS AND CONFESSIONS BY JUVENILES
REQUIRE SPECIAL CAUTION" AS TO THEIR RELIABILITY AND VOLUNTARINESS, AND
"IT WOULD INDEED BE SURPRISING IF THE PRIVILEGE AGAINST SELF
INCRIMINATION WERE AVAILABLE TO HARDENED CRIMINALS BUT NOT TO
CHILDREN."  "SPECIAL PROBLEMS MAY ARISE WITH RESPECT TO WAIVER OF THE
PRIVILEGE BY OR ON BEHALF OF CHILDREN, AND  ...  THERE MAY WELL BE SOME
DIFFERENCES IN TECHNIQUE - BUT NOT IN PRINCIPLE - DEPENDING UPON THE
AGE OF THE CHILD AND THE PRESENCE AND COMPETENCE OF PARENTS  ...  . IF
COUNSEL WAS NOT PRESENT FOR SOME PERMISSIBLE REASON WHEN AN ADMISSION
WAS OBTAINED, THE GREATEST CARE MUST BE TAKEN TO ASSURE THAT THE
ADMISSION WAS VOLUNTARY  ...  ."  GERALD'S ADMISSIONS DID NOT MEASURE
UP TO THESE STANDARDS, AND COULD NOT PROPERLY BE USED AS A BASIS FOR
THE JUDGMENT AGAINST HIM.  PP. 44-56. 

5.  ABSENT A VALID CONFESSION, A JUVENILE IN SUCH PROCEEDINGS MUST BE
AFFORDED THE RIGHTS OF CONFRONTATION AND SWORN TESTIMONY OF WITNESSES
AVAILABLE FOR CROSS-EXAMINATION.  PP. 56-57. 

6.  OTHER QUESTIONS RAISED BY APPELLANTS, INCLUDING THE ABSENCE OF
PROVISION FOR APPELLATE REVIEW OF A DELINQUENCY ADJUDICATION, AND A
TRANSCRIPT OF THE PROCEEDINGS, ARE NOT RULED UPON.  PP. 57-58. 

IN RE GAULT ET AL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL UNDER 28 U.S.C. SEC. 1257(2) FROM A JUDGMENT OF THE
SUPREME COURT OF ARIZONA AFFIRMING THE DISMISSAL OF A PETITION FOR A
WRIT OF HABEAS CORPUS.  99 ARIZ. 181, 407 P.2D 760 (1965).  THE
PETITION SOUGHT THE RELEASE OF GERALD FRANCIS GAULT, APPELLANTS' 15
YEAR-OLD SON, WHO HAD BEEN COMMITTED AS A JUVENILE DELINQUENT TO THE
STATE INDUSTRIAL SCHOOL BY THE JUVENILE COURT OF GILA COUNTY, ARIZONA. 
THE SUPREME COURT OF ARIZONA AFFIRMED DISMISSAL OF THE WRIT AGAINST
VARIOUS ARGUMENTS WHICH INCLUDED AN ATTACK UPON THE CONSTITUTIONALITY
OF ARIZONA JUVENILE CODE BECAUSE OF ITS ALLEGED DENIAL OF PROCEDURAL
DUE PROCESS RIGHTS TO JUVENILES CHARGED WITH BEING "DELINQUENTS."  THE
COURT AGREED THAT THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW IS
APPLICABLE IN SUCH PROCEEDINGS.  IT HELD THAT ARIZONA'S JUVENILE CODE
IS TO BE READ AS "IMPLIEDLY" IMPLEMENTING THE "DUE PROCESS CONCEPT." 
IT THEN PROCEEDED TO IDENTIFY AND DESCRIBE "THE PARTICULAR ELEMENTS
WHICH CONSTITUTE DUE PROCESS IN A JUVENILE HEARING."  IT CONCLUDED THAT
THE PROCEEDINGS ENDING IN COMMITMENT OF GERALD GAULT DID NOT OFFEND
THOSE REQUIREMENTS.  WE DO NOT AGREE, AND WE REVERSE.  WE BEGIN WITH A
STATEMENT OF THE FACTS. 

                                      I. 

ON MONDAY, JUNE 8, 1964, AT ABOUT 10 A.M., GERALD FRANCIS GAULT AND A
FRIEND, RONALD LEWIS, WERE TAKEN INTO CUSTODY BY THE SHERIFF OF GILA
COUNTY.  GERALD WAS THEN STILL SUBJECT TO A SIX MONTHS' PROBATION ORDER
WHICH HAD BEEN ENTERED ON FEBRUARY 25, 1964, AS A RESULT OF HIS HAVING
BEEN IN THE COMPANY OF ANOTHER BOY WHO HAD STOLEN A WALLET FROM A
LADY'S PURSE.  THE POLICE ACTION ON JUNE 8 WAS TAKEN AS THE RESULT OF A
VERBAL COMPLAINT BY A NEIGHBOR OF THE BOYS, MRS. COOK, ABOUT A
TELEPHONE CALL MADE TO HER IN WHICH THE CALLER OR CALLERS MADE LEWD OR
INDECENT REMARKS.  IT WILL SUFFICE FOR PURPOSES OF THIS OPINION TO SAY
THAT THE REMARKS OR QUESTIONS PUT TO HER WERE OF THE IRRITATINGLY
OFFENSIVE, ADOLESCENT, SEX VARIETY. 

AT THE TIME GERALD WAS PICKED UP, HIS MOTHER AND FATHER WERE BOTH AT
WORK.  NO NOTICE THAT GERALD WAS BEING TAKEN INTO CUSTODY WAS LEFT AT
THE HOME.  NO OTHER STEPS WERE TAKEN TO ADVISE THEM THAT THEIR SON HAD,
IN EFFECT, BEEN ARRESTED.  GERALD WAS TAKEN TO THE CHILDREN'S DETENTION
HOME.  WHEN HIS MOTHER ARRIVED HOME AT ABOUT 6 O'CLOCK, GERALD WAS NOT
THERE.  GERALD'S OLDER BROTHER WAS SENT TO LOOK FOR HIM AT THE TRAILER
HOME OF THE LEWIS FAMILY.  HE APPARENTLY LEARNED THEN THAT GERALD WAS
IN CUSTODY.  HE SO INFORMED HIS MOTHER.  THE TWO OF THEM WENT TO THE
DETENTION HOME.  THE DEPUTY PROBATION OFFICER, FLAGG, WHO WAS ALSO
SUPERINTENDENT OF THE DETENTION HOME, TOLD MRS. GAULT "WHY JERRY WAS
THERE" AND SAID THAT A HEARING WOULD BE HELD IN JUVENILE COURT AT 3
O'CLOCK THE FOLLOWING DAY, JUNE 9, 1964.  IT WAS 

OFFICER FLAGG FILED A PETITION WITH THE COURT ON THE HEARING DAY,
JUNE 9, 1964.  IT WAS NOT SERVED ON THE GAULTS.  INDEED, NONE OF THEM
SAW THIS PETITION UNTIL THE HABEAS CORPUS HEARING ON AUGUST 17, 1964. 
THE PETITION WAS ENTIRELY FORMAL.  IT MADE NO REFERENCE TO ANY FACTUAL
BASIS FOR THE JUDICIAL ACTION WHICH IT INITIATED.  IT RECITED ONLY THAT
"SAID MINOR IS UNDER THE AGE OF EIGHTEEN YEARS, AND IS IN NEED OF THE
PROTECTION OF THIS HONORABLE COURT; AND THAT SAID MINOR IS A DELINQUENT
MINOR."  IT PRAYED FOR A HEARING AND AN ORDER REGARDING "THE CARE AND
CUSTODY OF SAID MINOR."  OFFICER FLAGG EXECUTED A FORMAL AFFIDAVIT IN
SUPPORT OF THE PETITION. 

ON JUNE 9, GERALD, HIS MOTHER, HIS OLDER BROTHER, AND PROBATION
OFFICERS FLAGG AND HENDERSON APPEARED BEFORE THE JUVENILE JUDGE IN
CHAMBERS.  GERALD'S FATHER WAS NOT THERE.  HE WAS AT WORK OUT OF THE
CITY.  MRS. COOK, THE COMPLAINANT, WAS NOT THERE.  NO ONE WAS SWORN AT
THIS HEARING.  NO TRANSCRIPT OR RECORDING WAS MADE.  NO MEMORANDUM OR
RECORD OF THE SUBSTANCE OF THE PROCEEDINGS WAS PREPARED.  OUR
INFORMATION ABOUT THE PROCEEDINGS AND THE SUBSEQUENT HEARING ON JUNE
15, DERIVES ENTIRELY FROM THE TESTIMONY OF THE JUVENILE COURT JUDGE,
(FN1) MR. AND MRS. GAULT AND OFFICER FLAGG AT THE HABEAS CORPUS
PROCEEDING CONDUCTED TWO MONTHS LATER.  FROM THIS, IT APPEARS THAT AT
THE JUNE 9 HEARING GERALD WAS QUESTIONED BY THE JUDGE ABOUT THE
TELEPHONE CALL.  THERE WAS CONFLICT AS TO WHAT HE SAID.  HIS MOTHER
RECALLED THAT GERALD SAID HE ONLY DIALED MRS. COOK'S NUMBER AND HANDED
THE TELEPHONE TO HIS FRIEND, RONALD.  OFFICER FLAGG RECALLED THAT
GERALD HAD ADMITTED MAKING THE LEWD REMARKS.  JUDGE MCGHEE TESTIFIED
THAT GERALD "ADMITTED MAKING ONE OF THESE LEWD STATEMENTS."  AT THE
CONCLUSION OF THE HEARING, THE JUDGE SAID HE WOULD "THINK ABOUT IT." 
GERALD WAS TAKEN BACK TO THE DETENTION HOME.  HE WAS NOT SENT TO HIS
OWN HOME WITH HIS PARENTS.  ON JUNE 11 OR 12, AFTER HAVING BEEN
DETAINED SINCE JUNE 8, GERALD WAS RELEASED AND DRIVEN HOME.  (FN2)
THERE IS NO EXPLANATION IN THE RECORD AS TO WHY HE WAS KEPT IN THE
DETENTION HOME OR WHY HE WAS RELEASED.  AT 5 P.M. ON THE DAY OF
GERALD'S RELEASE, MRS. GAULT RECEIVED A NOTE SIGNED BY OFFICER FLAGG. 
IT WAS ON PLAIN PAPER, NOT LETTERHEAD.  ITS ENTIRE TEXT WAS AS
FOLLOWS: 

"MRS. GAULT: 

"JUDGE MCGHEE HAS SET MONDAY JUNE 15, 1964 AT 11:00 A.M. AS THE DATE
AND TIME FOR FURTHER HEARINGS ON GERALD'S DELINQUENCY. 

                              "/S/FLAGG" 

AT THE APPOINTED TIME ON MONDAY, JUNE 15, GERALD, HIS FATHER AND
MOTHER, RONALD LEWIS AND HIS FATHER, AND OFFICERS FLAGG AND HENDERSON
WERE PRESENT BEFORE JUDGE MCGHEE.  WITNESSES AT THE HABEAS CORPUS
PROCEEDING DIFFERED IN THEIR RECOLLECTIONS OF GERALD'S TESTIMONY AT THE
JUNE 15 HEARING.  MR. AND MRS. GAULT RECALLED THAT GERALD AGAIN
TESTIFIED THAT HE HAD ONLY DIALED THE NUMBER AND THAT THE OTHER BOY HAD
MADE THE REMARKS.  OFFICER FLAGG AGREED THAT AT THIS HEARING GERALD DID
NOT ADMIT MAKING THE LEWD REMARKS.  (FN3)  BUT JUDGE MCGHEE RECALLED
THAT "THERE WAS SOME ADMISSION AGAIN OF SOME OF THE LEWD STATEMENTS. 
HE - HE DIDN'T ADMIT ANY OF THE MORE SERIOUS LEWD STATEMENTS."  (FN4)
AGAIN, THE COMPLAINANT, MRS. COOK, WAS NOT PRESENT.  MRS. GAULT ASKED
THAT MRS. COOK BE PRESENT "SO SHE COULD SEE WHICH BOY THAT DONE THE
TALKING, THE DIRTY TALKING OVER THE PHONE."  THE JUVENILE JUDGE SAID
"SHE DIDN'T HAVE TO BE PRESENT AT THAT HEARING."  THE JUDGE DID NOT
SPEAK TO MRS. COOK OR COMMUNICATE WITH HER AT ANY TIME.  PROBATION
OFFICER FLAGG HAD TALKED TO HER ONCE - OVER THE TELEPHONE ON JUNE 9. 

AT THIS JUNE 15 HEARING A "REFERRAL REPORT" MADE BY THE PROBATION
OFFICERS WAS FILED WITH THE COURT, ALTHOUGH NOT DISCLOSED TO GERALD OR
HIS PARENTS.  THIS LISTED THE CHARGE AS "LEWD PHONE CALLS."  AT THE
CONCLUSION OF THE HEARING, THE JUDGE COMMITTED GERALD AS A JUVENILE
DELINQUENT TO THE STATE INDUSTRIAL SCHOOL "FOR THE PERIOD OF HIS
MINORITY (THAT IS, UNTIL 21), UNLESS SOONER DISCHARGED BY DUE PROCESS
OF LAW."  AN ORDER TO THAT EFFECT WAS ENTERED.  IT RECITES THAT "AFTER
A FULL HEARING AND DUE DELIBERATION THE COURT FINDS THAT SAID MINOR IS
A DELINQUENT CHILD, AND THAT SAID MINOR IS OF THE AGE OF 15 YEARS." 

NO APPEAL IS PERMITTED BY ARIZONA LAW IN JUVENILE CASES.  ON AUGUST
3, 1964, A PETITION FOR A WRIT OF HABEAS CORPUS WAS FILED WITH THE
SUPREME COURT OF ARIZONA AND REFERRED BY IT TO THE SUPERIOR COURT FOR
HEARING. 

AT THE HABEAS CORPUS HEARING ON AUGUST 17, JUDGE MCGHEE WAS
VIGOROUSLY CROSS-EXAMINED AS TO THE BASIS FOR HIS ACTIONS.  HE
TESTIFIED THAT HE HAD TAKEN INTO ACCOUNT THE FACT THAT GERALD WAS ON
PROBATION.  HE WAS ASKED "UNDER WHAT SECTION OF  ...  THE CODE YOU
FOUND THE BOY DELINQUENT?" 

HIS ANSWER IS SET FORTH IN THE MARGIN.  (FN5)  IN SUBSTANCE, HE
CONCLUDED THAT GERALD CAME WITHIN ARS SEC 8-201-6(A), WHICH SPECIFIES
THAT A "DELINQUENT CHILD" INCLUDES ONE "WHO HAS VIOLATED A LAW OF THE
STATE OR AN ORDINANCE OR REGULATION OF A POLITICAL SUBDIVISION
THEREOF."  THE LAW WHICH GERALD WAS FOUND TO HAVE VIOLATED IS ARS SEC
13-377.  THIS SECTION OF THE ARIZONA CRIMINAL CODE PROVIDES THAT A
PERSON WHO "IN THE PRESENCE OR HEARING OF ANY WOMAN OR CHILD  ...  USES
VULGAR, ABUSIVE OR OBSCENE LANGUAGE, IS GUILTY OF A MISDEMEANOR  ...
."  THE PENALTY SPECIFIED IN THE CRIMINAL CODE, WHICH WOULD APPLY TO AN
ADULT, IS $5 TO $50, OR IMPRISONMENT FOR NOT MORE THAN TWO MONTHS.  THE
JUDGE ALSO TESTIFIED THAT HE ACTED UNDER ARS SEC 8-201-6(D) WHICH
INCLUDES IN THE DEFINITION OF A "DELINQUENT CHILD" ONE WHO, AS THE
JUDGE PHRASED IT, IS "HABITUALLY INVOLVED IN IMMORAL MATTERS."  (FN6) 

ASKED ABOUT THE BASIS FOR HIS CONCLUSION THAT GERALD WAS "HABITUALLY
INVOLVED IN IMMORAL MATTERS," THE JUDGE TESTIFIED, SOMEWHAT VAGUELY,
THAT TWO YEARS EARLIER, ON JULY 2, 1962, A "REFERRAL" WAS MADE
CONCERNING GERALD, "WHERE THE BOY HAD STOLEN A BASEBALL GLOVE FROM
ANOTHER BOY AND LIED TO THE POLICE DEPARTMENT ABOUT IT."  THE JUDGE
SAID THERE WAS "NO HEARING," AND "NO ACCUSATION" RELATING TO THIS
INCIDENT, "BECAUSE OF LACK OF MATERIAL FOUNDATION."  BUT IT SEEMS TO
HAVE REMAINED IN HIS MIND AS A RELEVANT FACTOR.  THE JUDGE ALSO
TESTIFIED THAT GERALD HAD ADMITTED MAKING OTHER NUISANCE PHONE CALLS IN
THE PAST WHICH, AS THE JUDGE RECALLED THE BOY'S TESTIMONY, WERE "SILLY
CALLS, OR FUNNY CALLS, OR SOMETHING LIKE THAT." 

THE SUPERIOR COURT DISMISSED THE WRIT, AND APPELLANTS SOUGHT REVIEW
IN THE ARIZONA SUPREME COURT.  THAT COURT STATED THAT IT CONSIDERED
APPELLANTS' ASSIGNMENTS OF ERROR AS URGING (1) THAT THE JUVENILE CODE,
ARS SEC 8-201 TO SEC 8-239, IS UNCONSTITUTIONAL BECAUSE IT DOES NOT
REQUIRE THAT PARENTS AND CHILDREN BE APPRISED OF THE SPECIFIC CHARGES,
DOES NOT REQUIRE PROPER NOTICE OF A HEARING, AND DOES NOT PROVIDE FOR
AN APPEAL; AND (2) THAT THE PROCEEDINGS AND ORDER RELATING TO GERALD
CONSTITUTED A DENIAL OF DUE PROCESS OF LAW BECAUSE OF THE ABSENCE OF
ADEQUATE NOTICE OF THE CHARGE AND THE HEARING; FAILURE TO NOTIFY
APPELLANTS OF CERTAIN CONSTITUTIONAL RIGHTS INCLUDING THE RIGHTS TO
COUNSEL AND TO CONFRONTATION, AND THE PRIVILEGE AGAINST SELF
INCRIMINATION; THE USE OF UNSWORN HEARSAY TESTIMONY; AND THE FAILURE TO
MAKE A RECORD OF THE PROCEEDINGS.  APPELLANTS FURTHER ASSERTED THAT IT
WAS ERROR FOR THE JUVENILE COURT TO REMOVE GERALD FROM THE CUSTODY OF
HIS PARENTS WITHOUT A SHOWING AND FINDING OF THEIR UNSUITABILITY, AND
ALLEGED A MISCELLANY OF OTHER ERRORS UNDER STATE LAW. 

THE SUPREME COURT HANDED DOWN AN ELABORATE AND WIDE-RANGING OPINION
AFFIRMING DISMISSAL OF THE WRIT AND STATING THE COURT'S CONCLUSIONS AS
TO THE ISSUES RAISED BY APPELLANTS AND OTHER ASPECTS OF THE JUVENILE
PROCESS.  IN THEIR JURISDICTIONAL STATEMENT AND BRIEF IN THIS COURT,
APPELLANTS DO NOT URGE UPON US ALL OF THE POINTS PASSED UPON BY THE
SUPREME COURT OF ARIZONA.  THEY URGE THAT WE HOLD THE JUVENILE CODE OF
ARIZONA INVALID ON ITS FACE OR AS APPLIED IN THIS CASE BECAUSE,
CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THE
JUVENILE IS TAKEN FROM THE CUSTODY OF HIS PARENTS AND COMMITTED TO A
STATE INSTITUTION PURSUANT TO PROCEEDINGS IN WHICH THE JUVENILE COURT
HAS VIRTUALLY UNLIMITED DISCRETION, AND IN WHICH THE FOLLOWING BASIC
RIGHTS ARE DENIED: 

1.  NOTICE OF THE CHARGES: 

2.  RIGHT TO COUNSEL: 

3.  RIGHT TO CONFRONTATION AND CROSS-EXAMINATION: 

4.  PRIVILEGE AGAINST SELF-INCRIMINATION: 

5.  RIGHT TO A TRANSCRIPT OF THE PROCEEDINGS; AND: 

6.  RIGHT TO APPELLATE REVIEW. 

WE SHALL NOT CONSIDER OTHER ISSUES WHICH WERE PASSED UPON BY THE
SUPREME COURT OF ARIZONA.  WE EMPHASIZE THAT WE INDICATE NO OPINION AS
TO WHETHER THE DECISION OF THAT COURT WITH RESPECT TO SUCH OTHER ISSUES
DOES OR DOES NOT CONFLICT WITH REQUIREMENTS OF THE FEDERAL
CONSTITUTION.  (FN7)

 II. 

THE SUPREME COURT OF ARIZONA HELD THAT DUE PROCESS OF LAW IS
REQUISITE TO THE CONSTITUTIONAL VALIDITY OF PROCEEDINGS IN WHICH A
COURT REACHES THE CONCLUSION THAT A JUVENILE HAS BEEN AT FAULT, HAS
ENGAGED IN CONDUCT PROHOBITED BY LAW, OR HAS OTHERWISE MISBEHAVED WITH
THE CONSEQUENCE THAT HE IS COMMITTED TO AN INSTITUTION IN WHICH HIS
FREEDOM IS CURTAILED.  THIS CONCLUSION IS IN ACCORD WITH THE DECISIONS
OF A NUMBER OF COURTS UNDER BOTH FEDERAL AND STATE CONSTITUTIONS. 
(FN8) 

THIS COURT HAS NOT HERETOFORE DECIDED THE PRECISE QUESTION.  IN KENT
V. UNITED STATES, 383 U.S. 541 (1966), WE CONSIDERED THE REQUIREMENTS
FOR A VALID WAIVER OF THE "EXCLUSIVE" JURISDICTION OF THE JUVENILE
COURT OF THE DISTRICT OF COLUMBIA SO THAT A JUVENILE COULD BE TRIED IN
THE ADULT CRIMINAL COURT OF THE DISTRICT.  ALTHOUGH OUR DECISION TURNED
UPON THE LANGUAGE OF THE STATUTE, WE EMPHASIZED THE NECESSITY THAT "THE
BASIC REQUIREMENTS OF DUE PROCESS AND FAIRNESS" BE SATISFIED IN SUCH
PROCEEDINGS.  (FN9)  HALEY V. OHIO, 332 U.S. 596 (1948), INVOLVED THE
ADMISSIBILITY, IN A STATE CRIMINAL COURT OF GENERAL JURISDICTION, OF A
CONFESSION BY A 15-YEAR-OLD BOY.  THE COURT HELD THAT THE FOURTEENTH
AMENDMENT APPLIED TO PROHIBIT THE USE OF THE COERCED CONFESSION.  MR.
JUSTICE DOUGLAS SAID, "NEITHER MAN NOR CHILD CAN BE ALLOWED TO STAND
CONDEMNED BY METHODS WHICH FLOUT CONSTITUTIONAL REQUIREMENTS OF DUE
PROCESS OF LAW."  (FN10)  TO THE SAME EFFECT IS GALLEGOS V. COLORADO,
370 U.S. 49 (1962).  ACCORDINGLY, WHILE THESE CASES RELATE ONLY TO
RESTRICTED ASPECTS OF THE SUBJECT, THEY UNMISTAKABLY INDICATE THAT,
WHATEVER MAY BE THEIR PRECISE IMPACT, NEITHER THE FOURTEENTH AMENDMENT
NOR THE BILL OF RIGHTS IS FOR ADULTS ALONE.    WE DO NOT IN THIS
OPINION CONSIDER THE IMPACT OF THESE CONSTITUTIONAL PROVISIONS UPON THE
TOTALITY OF THE RELATIONSHIP OF THE JUVENILE AND THE STATE.  WE DO NOT
EVEN CONSIDER THE ENTIRE PROCESS RELATING TO JUVENILE "DELINQUENTS." 
FOR EXAMPLE, WE ARE NOT HERE CONCERNED WITH THE PROCEDURES OR
CONSTITUTIONAL RIGHTS APPLICABLE TO THE PRE-JUDICIAL STAGES OF THE
JUVENILE PROCESS, NOR DO WE DIRECT OUR ATTENTION TO THE POST
ADJUDICATIVE OR DISPOSITIONAL PROCESS.  SEE NOTE 48, INFRA.  WE
CONSIDER ONLY THE PROBLEMS PRESENTED TO US BY THIS CASE.  THESE RELATE
TO THE PROCEEDINGS BY WHICH A DETERMINATION IS MADE AS TO WHETHER A
JUVENILE IS A "DELINQUENT" AS A RESULT OF ALLEGED MISCONDUCT ON HIS
PART, WITH THE CONSEQUENCE THAT HE MAY BE COMMITTED TO A STATE
INSTITUTION.  AS TO THESE PROCEEDINGS, THERE APPEARS TO BE LITTLE
CURRENT DISSENT FROM THE PROPOSITION THAT THE DUE PROCESS CLAUSE HAS A
ROLE TO PLAY.  (FN11)  THE PROBLEM IS TO ASCERTAIN THE PRECISE IMPACT
OF THE DUE PROCESS REQUIREMENT UPON SUCH PROCEEDINGS. 

FROM THE INCEPTION OF THE JUVENILE COURT SYSTEM, WIDE DIFFERENCES
HAVE BEEN TOLERATED - INDEED INSISTED UPON - BETWEEN THE PROCEDURAL
RIGHTS ACCORDED TO ADULTS AND THOSE OF JUVENILES.  IN PRACTICALLY ALL
JURISDICTIONS, THERE ARE RIGHTS GRANTED TO ADULTS WHICH ARE WITHHELD
FROM JUVENILES.   IN ADDITION TO THE SPECIFIC PROBLEMS INVOLVED IN THE
PRESENT CASE, FOR EXAMPLE, IT HAS BEEN HELD THAT THE JUVENILE IS NOT
ENTITLED TO BAIL, TO INDICTMENT BY GRAND JURY, TO A PUBLIC TRIAL OR TO
TRIAL BY JURY.  (FN12)  IT IS FREQUENT PRACTICE THAT RULES GOVERNING
THE ARREST AND INTERROGATION OF ADULTS BY THE POLICE ARE NOT OBSERVED
IN THE CASE OF JUVENILES.  (FN13) 

THE HISTORY AND THEORY UNDERLYING THIS DEVELOPMENT ARE WELL-KNOWN,
BUT A RECAPITULATION IS NECESSARY FOR PURPOSES OF THIS OPINION.  THE
JUVENILE COURT MOVEMENT BEGAN IN THIS COUNTRY AT THE END OF THE LAST
CENTURY.  FROM THE JUVENILE COURT STATUTE ADOPTED IN ILLINOIS IN 1899,
THE SYSTEM HAS SPREAD TO EVERY STATE IN THE UNION, THE DISTRICT OF
COLUMBIA, AND PUERTO RICO.  (FN14)  THE CONSTITUTIONALITY OF JUVENILE
COURT LAWS HAS BEEN SUSTAINED IN OVER 40 JURISDICTIONS AGAINST A
VARIETY OF ATTACKS.  (FN15) 

THE EARLY REFORMERS WERE APPALLED BY ADULT PROCEDURES AND PENALTIES,
AND BY THE FACT THAT CHILDREN COULD BE GIVEN LONG PRISON SENTENCES AND
MIXED IN JAILS WITH HARDENED CRIMINALS.  THEY WERE PROFOUNDLY CONVINCED
THAT SOCIETY'S DUTY TO THE CHILD COULD NOT BE CONFINED BY THE CONCEPT
OF JUSTICE ALONE.  THEY BELIEVED THAT SOCIETY'S ROLE WAS NOT TO
ASCERTAIN WHETHER THE CHILD WAS "GUILTY" OR "INNOCENT," BUT "WHAT IS
HE, HOW HAS BE BECOME WHAT HE IS, AND WHAT HAD BEST BE DONE IN HIS
INTEREST AND IN THE INTEREST OF THE STATE TO SAVE HIM FROM A DOWNWARD
CAREER."  (FN16)  THE CHILD - ESSENTIALLY GOOD, AS THEY SAW IT - WAS TO
BE MADE "TO FEEL THAT HE IS THE OBJECT OF THE STATE'S CARE AND
SOLICITUDE," (FN17) NOT THAT HE WAS UNDER ARREST OR ON TRIAL.  THE
RULES OF CRIMINAL PROCEDURE WERE THEREFORE ALTOGETHER INAPPLICABLE. 
THE APPARENT RIGIDITIES, TECHNICALITIES, AND HARSHNESS WHICH THEY
OBSERVED IN BOTH SUBSTANTIVE AND PROCEDURAL CRIMINAL LAW WERE THEREFORE
TO BE DISCARDED.  THE IDEA OF CRIME AND PUNISHMENT WAS TO BE
ABANDONED.  THE CHILD WAS TO BE "TREATED" AND "REHABILITATED" AND THE
PROCEDURES, FROM APPREHENSION THROUGH INSTITUTIONALIZATION, WERE TO BE
"CLINICAL" RATHER THAN PUNITIVE. 

THESE RESULTS WERE TO BE ACHIEVED, WITHOUT COMING TO CONCEPTUAL AND
CONSTITUTIONAL GRIEF, BY INSISTING THAT THE PROCEEDINGS WERE NOT
ADVERSARY, BUT THAT THE STATE WAS PROCEEDING AS PARENS PATRIAE.  (FN18)
THE LATIN PHRASE PROVED TO BE A GREAT HELP TO THOSE WHO SOUGHT TO
RATIONALIZE THE EXCLUSION OF JUVENILES FROM THE CONSTITUTIONAL SCHEME;
BUT ITS MEANING IS MURKY AND ITS HISTORIC CREDENTIALS ARE OF DUBIOUS
RELEVANCE.  THE PHRASE WAS TAKEN FROM CHANCERY PRACTICE, WHERE,
HOWEVER, IT WAS USED TO DESCRIBE THE POWER OF THE STATE TO ACT IN LOCO
PARENTIS FOR THE PURPOSE OF PROTECTING THE PROPERTY INTERESTS AND THE
PERSON OF THE CHILD.  (FN19)  BUT THERE IS NO TRACE OF THE DOCTRINE IN
THE HISTORY OF CRIMINAL JURISPRUDENCE.  AT COMMON LAW, CHILDREN UNDER
SEVEN WERE CONSIDERED INCAPABLE OF POSSESSING CRIMINAL INTENT.  BEYOND
THAT AGE, THEY WERE SUBJECTED TO ARREST, TRIAL, AND IN THEORY TO
PUNISHMENT LIKE ADULT OFFENDERS.  (FN20)  IN THESE OLD DAYS, THE STATE
WAS NOT DEEMED TO HAVE AUTHORITY TO ACCORD THEM FEWER PROCEDURAL RIGHTS
THAN ADULTS. 

THE RIGHT OF THE STATE, AS PARENS PATRIAE, TO DENY TO THE CHILD
PROCEDURAL RIGHTS AVAILABLE TO HIS ELDERS WAS ELABORATED BY THE
ASSERTION THAT A CHILD, UNLIKE AN ADULT, HAS A RIGHT "NOT TO LIBERTY
BUT TO CUSTODY."  HE CAN BE MADE TO ATTORN TO HIS PARENTS, TO GO TO
SCHOOL, ETC.  IF HIS PARENTS DEFAULT IN EFFECTIVELY PERFORMING THEIR
CUSTODIAL FUNCTIONS - THAT IS, IF THE CHILD IS "DELINQUENT" - THE STATE
MAY INTERVENE.  IN DOING SO, IT DOES NOT DEPRIVE THE CHILD OF ANY
RIGHTS, BECAUSE HE HAS NONE.  IT MERELY PROVIDES THE "CUSTODY" TO WHICH
THE CHILD IS ENTITLED.  (FN21)  ON THIS BASIS, PROCEEDINGS INVOLVING
JUVENILES WERE DESCRIBED AS "CIVIL" NOT "CRIMINAL" AND THEREFORE NOT
SUBJECT TO THE REQUIREMENTS WHICH RESTRICT THE STATE WHEN IT SEEKS TO
DEPRIVE A PERSON OF HIS LIBERTY.  (FN22) 

ACCORDINGLY, THE HIGHEST MOTIVES AND MOST ENLIGHTENED IMPULSES LED TO
A PECULIAR SYSTEM FOR JUVENILES, UNKNOWN TO OUR LAW IN ANY COMPARABLE
CONTEXT.  THE CONSTITUTIONAL AND THEORETICAL BASIS FOR THIS PECULIAR
SYSTEM IS - TO SAY THE LEAST - DEBATABLE.  AND IN PRACTICE, AS WE
REMARKED IN THE KENT CASE, SUPRA, THE RESULTS HAVE NOT BEEN ENTIRELY
SATISFACTORY.  (FN23)  JUVENILE COURT HISTORY HAS AGAIN DEMONSTRATED
THAT UNBRIDLED DISCRETION HOWEVER BENEVOLENTLY MOTIVATED, IS FREQUENTLY
A POOR SUBSTITUTE FOR PRINCIPLE AND PROCEDURE.  IN 1937, DEAN POUND
WROTE:  "THE POWERS OF THE STAR CHAMBER WERE A TRIFLE IN COMPARISON
WITH THOSE OF OUR JUVENILE COURTS  ...  ."  (FN24)  THE ABSENCE OF
SUBSTANTIVE STANDARDS HAS NOT NECESSARILY MEANT THAT CHILDREN RECEIVE
CAREFUL, COMPASSIONATE, INDIVIDUALIZED TREATMENT.  THE ABSENCE OF
PROCEDURAL RULES BASED UPON CONSTITUTIONAL PRINCIPLE HAS NOT ALWAYS
PRODUCED FAIR, EFFICIENT, AND EFFECTIVE PROCEDURES.  DEPARTURES FROM
ESTABLISHED PRINCIPLES OF DUE PROCESS HAVE FREQUENTLY RESULTED NOT IN
ENLIGHTENED PROCEDURE, BUT IN ARBITRARINESS.  THE CHAIRMAN OF THE
PENNSYLVANIA COUNCIL OF JUVENILE COURT JUDGES HAS RECENTLY OBSERVED:
"UNFORTUNATELY, LOOSE PROCEDURES, HIGH-HANDED METHODS AND CROWDED COURT
CALENDARS, EITHER SINGLY OR IN COMBINATION, ALL TOO OFTEN, HAVE
RESULTED IN DEPRIVING SOME JUVENILES OF FUNDAMENTAL RIGHTS THAT HAVE
RESULTED IN A DENIAL OF DUE PROCESS."  (FN25) 

FAILURE TO OBSERVE THE FUNDAMENTAL REQUIREMENTS OF DUE PROCESS HAS
RESULTED IN INSTANCES, WHICH MIGHT HAVE BEEN AVOIDED, OF UNFAIRNESS TO
INDIVIDUALS AND INADEQUATE OR INACCURATE FINDINGS OF FACT AND
UNFORTUNATE PRESCRIPTIONS OF REMEDY.  DUE PROCESS OF LAW IS THE PRIMARY
AND INDISPENSABLE FOUNDATION OF INDIVIDUAL FREEDOM.  IT IS THE BASIC
AND ESSENTIAL TERM IN THE SOCIAL COMPACT WHICH DEFINES THE RIGHTS OF
THE INDIVIDUAL AND DELIMITS THE POWERS WHICH THE STATE MAY EXERCISE. 
(FN26) AS MR. JUSTICE FRANKFURTER HAS SAID:  "THE HISTORY OF AMERICAN
FREEDOM IS, IN NO SMALL MEASURE, THE HISTORY OF PROCEDURE."  (FN27)
BUT IN ADDITION, THE PROCEDURAL RULES WHICH HAVE BEEN FASHIONED FROM
THE GENERALITY OF DUE PROCESS ARE OUR BEST INSTRUMENTS FOR THE
DISTILLATION AND EVALUATION OF ESSENTIAL FACTS FROM THE CONFLICTING
WELTER OF DATA THAT LIFE AND OUR ADVERSARY METHODS PRESENT.  IT IS
THESE INSTRUMENTS OF DUE PROCESS WHICH ENHANCE THE POSSIBILITY THAT
TRUTH WILL EMERGE FROM THE CONFRONTATION OF OPPOSING VERSIONS AND
CONFLICTING DATA.  "PROCEDURE IS TO LAW WHAT 'SCIENTIFIC METHOD' IS TO
SCIENCE."  (FN28) 

IT IS CLAIMED THAT JUVENILES OBTAIN BENEFITS FROM THE SPECIAL
PROCEDURES APPLICABLE TO THEM WHICH MORE THAN OFFSET THE DISADVANTAGES
OF DENIAL OF THE SUBSTANCE OF NORMAL DUE PROCESS.  AS WE SHALL DISCUSS,
THE OBSERVANCE OF DUE PROCESS STANDARDS, INTELLIGENTLY AND NOT
RUTHLESSLY ADMINISTERED, WILL NOT COMPEL THE STATES TO ABANDON OR
DISPLACE ANY OF THE SUBSTANTIVE BENEFITS OF THE JUVENILE PROCESS. 
(FN29)  BUT IT IS IMPORTANT, WE THINK THAT THE CLAIMED BENEFITS OF THE
JUVENILE PROCESS SHOULD BE CANDIDLY APPRAISED.  NEITHER SENTIMENT NOR
FOLKLORE SHOULD CAUSE US TO SHUT OUR EYES, FOR EXAMPLE, TO SUCH
STARTLING FINDINGS AS THAT REPORTED IN AN EXCEPTIONALLY RELIABLE STUDY
OF REPEATERS OR RECIDIVISM CONDUCTED BY THE STANFORD RESEARCH INSTITUTE
FOR THE PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT OF COLUMBIA. 
THIS COMMISSION'S REPORT STATES: 

"IN FISCAL 1966 APPROXIMATELY 66 PERCENT OF THE 16- AND 17-YEAR-OLD
JUVENILES REFERRED TO THE COURT BY THE YOUTH AID DIVISION HAD BEEN
BEFORE THE COURT PREVIOUSLY.  IN 1965, 56 PERCENT OF THOSE IN THE
RECEIVING HOME WERE REPEATERS.  THE SRI STUDY REVEALED THAT 61 PERCENT
OF THE SAMPLE JUVENILE COURT REFERRALS IN 1965 HAD BEEN PREVIOUSLY
REFERRED AT LEAST ONCE AND 42 PERCENT HAD BEEN REFERRED AT LEAST TWICE
BEFORE."  ID., AT 773. 

CERTAINLY, THESE FIGURES AND THE HIGH CRIME RATES AMONG JUVENILES TO
WHICH WE HAVE REFERRED (SUPRA, N. 26), COULD NOT LEAD US TO CONCLUDE
THAT THE ABSENCE OF CONSTITUTIONAL PROTECTIONS REDUCES CRIME, OR THAT
THE JUVENILE SYSTEM, FUNCTIONING FREE OF CONSTITUTIONAL INHIBITIONS AS
IT HAS LARGELY DONE, IS EFFECTIVE TO REDUCE CRIME OR REHABILITATE
OFFENDERS.  WE DO NOT MEAN BY THIS TO DENIGRATE THE JUVENILE COURT
PROCESS OR TO SUGGEST THAT THERE ARE NOT ASPECTS OF THE JUVENILE SYSTEM
RELATING TO OFFENDERS WHICH ARE VALUABLE.  BUT THE FEATURES OF THE
JUVENILE SYSTEM WHICH ITS PROPONENTS HAVE ASSERTED ARE OF UNIQUE
BENEFIT WILL NOT BE IMPAIRED BY CONSTITUTIONAL DOMESTICATION.  FOR
EXAMPLE, THE COMMENDABLE PRINCIPLES RELATING TO THE PROCESSING AND
TREATMENT OF JUVENILES SEPARATELY FROM ADULTS ARE IN NO WAY INVOLVED OR
AFFECTED BY THE PROCEDURAL ISSUES UNDER DISCUSSION.  (FN30) FURTHER, WE
ARE TOLD THAT ONE OF THE IMPORTANT BENEFITS OF THE SPECIAL JUVENILE
COURT PROCEDURES IS THAT THEY AVOID CLASSIFYING THE JUVENILE AS A
"CRIMINAL."  THE JUVENILE OFFENDER IS NOW CLASSED AS A "DELINQUENT." 
THERE IS, OF COURSE, NO REASON WHY THIS SHOULD NOT CONTINUE.  IT IS
DISCONCERTING, HOWEVER, THAT THIS TERM HAS COME TO INVOLVE ONLY
SLIGHTLY LESS STIGMA THAN THE TERM "CRIMINAL" APPLIED TO ADULTS. 
(FN31)  IT IS ALSO EMPHASIZED THAT IN PRACTICALLY ALL JURISDICTIONS,
STATUTES PROVIDE THAT AN ADJUDICATION OF THE CHILD AS A DELINQUENT
SHALL NOT OPERATE AS A CIVIL DISABILITY OR DISQUALIFY HIM FOR CIVIL
SERVICE APPOINTMENT.  (FN32)  THERE IS NO REASON WHY THE APPLICATION OF
DUE PROCESS REQUIREMENTS SHOULD INTERFERE WITH SUCH PROVISIONS. 

BEYOND THIS, IT IS FREQUENTLY SAID THAT JUVENILES ARE PROTECTED BY
THE PROCESS FROM DISCLOSURE OF THEIR DEVIATIONAL BEHAVIOR.  AS THE
SUPREME COURT OF ARIZONA PHRASED IT IN THE PRESENT CASE, THE SUMMARY
PROCEDURES OF JUVENILE COURTS ARE SOMETIMES DEFENDED BY A STATEMENT
THAT IT IS THE LAW'S POLICY "TO HIDE YOUTHFUL ERRORS FROM THE FULL GAZE
OF THE PUBLIC AND BURY THEM IN THE GRAVEYARD OF THE FORGOTTEN PAST." 
THIS CLAIM OF SECRECY, HOWEVER, IS MORE RHETORIC THAN REALITY. 
DISCLOSURE OF COURT RECORDS IS DISCRETIONARY WITH THE JUDGE IN MOST
JURISDICTIONS.  STATUTORY RESTRICTIONS ALMOST INVARIABLY APPLY ONLY TO
THE COURT RECORDS, AND EVEN AS TO THOSE THE EVIDENCE IS THAT MANY
COURTS ROUTINELY FURNISH INFORMATION TO THE FBI AND THE MILITARY, AND
ON REQUEST TO GOVERNMENT AGENCIES AND EVEN TO PRIVATE EMPLOYERS. 
(FN33)  OF MORE IMPORTANCE ARE POLICE RECORDS.  IN MOST STATES THE
POLICE KEEP A COMPLETE FILE OF JUVENILE "POLICE CONTACTS" AND HAVE
COMPLETE DISCRETION AS TO DISCLOSURE OF JUVENILE RECORDS.  POLICE
DEPARTMENTS RECEIVE REQUESTS FOR INFORMATION FROM THE FBI AND OTHER LAW
ENFORCEMENT AGENCIES, THE ARMED FORCES, AND SOCIAL SERVICE AGENCIES,
AND MOST OF THEM GENERALLY COMPLY.  (FN34)  PRIVATE EMPLOYERS WORD
THEIR APPLICATION FORMS TO PRODUCE INFORMATION CONCERNING JUVENILE
ARRESTS AND COURT PROCEEDINGS, AND IN SOME JURISDICTIONS INFORMATION
CONCERNING JUVENILE POLICE CONTACTS IS FURNISHED PRIVATE EMPLOYERS AS
WELL AS GOVERNMENT AGENCIES.  (FN35) 

IN ANY EVENT, THERE IS NO REASON WHY, CONSISTENTLY WITH DUE PROCESS,
A STATE CANNOT CONTINUE, IF IT DEEMS IT APPROPRIATE, TO PROVIDE AND TO
IMPROVE PROVISION FOR THE CONFIDENTIALITY OF RECORDS OF POLICE CONTACTS
AND COURT ACTION RELATING TO JUVENILES.  IT IS INTERESTING TO NOTE,
HOWEVER, THAT THE ARIZONA SUPREME COURT USED THE CONFIDENTIALITY
ARGUMENT AS A JUSTIFICATION FOR THE TYPE OF NOTICE WHICH IS HERE
ATTACKED AS INADEQUATE FOR DUE PROCESS PURPOSES.  THE PARENTS WERE
GIVEN MERELY GENERAL NOTICE THAT THEIR CHILD WAS CHARGED WITH
"DELINQUENCY."  NO FACTS WERE SPECIFIED.  THE ARIZONA COURT HELD,
HOWEVER, AS WE SHALL DISCUSS, THAT IN ADDITION TO THIS GENERAL
"NOTICE," THE CHILD AND HIS PARENTS MUST BE ADVISED "OF THE FACTS
INVOLVED IN THE CASE" NO LATER THAN THE INITIAL HEARING BY THE JUDGE. 
OBVIOUSLY, THIS DOES NOT "BURY" THE WORD ABOUT THE CHILD'S
TRANSGRESSIONS.  IT MERELY DEFERS THE TIME OF DISCLOSURE TO A POINT
WHEN IT IS OF LIMITED USE TO THE CHILD OR HIS PARENTS IN PREPARING HIS
DEFENSE OR EXPLANATION. 

FURTHER, IT IS URGED THAT THE JUVENILE BENEFITS FROM INFORMAL
PROCEEDINGS IN THE COURT.  THE EARLY CONCEPTION OF THE JUVENILE COURT
PROCEEDING WAS ONE IN WHICH A FATHERLY JUDGE TOUCHED THE HEART AND
CONSCIENCE OF THE ERRING YOUTH BY TALKING OVER HIS PROBLEMS, BY
PATERNAL ADVICE AND ADMONITION, AND IN WHICH, IN EXTREME SITUATIONS,
BENEVOLENT AND WISE INSTITUTIONS OF THE STATE PROVIDED GUIDANCE AND
HELP "TO SAVE HIM FROM A DOWNWARD CAREER."  (FN36)  THEN, AS NOW,
GOODWILL AND COMPASSION WERE ADMIRABLY PREVALENT.  BUT RECENT STUDIES
HAVE, WITH SURPRISING UNANIMITY, ENTERED SHARP DISSENT AS TO THE
VALIDITY OF THIS GENTLE CONCEPTION.  THEY SUGGEST THAT THE APPEARANCE
AS WELL AS THE ACTUALITY OF FAIRNESS, IMPARTIALITY AND ORDERLINESS - IN
SHORT, THE ESSENTIALS OF DUE PROCESS - MAY BE A MORE IMPRESSIVE AND
MORE THERAPEUTIC ATTITUDE SO FAR AS THE JUVENILE IS CONCERNED.  FOR
EXAMPLE, IN A RECENT STUDY, THE SOCIOLOGISTS WHEELER AND COTTRELL
OBSERVE THAT WHEN THE PROCEDURAL LAXNESS OF THE "PARENS PATRIAE"
ATTITUDE IS FOLLOWED BY STERN DISCIPLINING, THE CONTRAST MAY HAVE AN
ADVERSE EFFECT UPON THE CHILD, WHO FEELS THAT HE HAS BEEN DECEIVED OR
ENTICED.  THEY CONCLUDE AS FOLLOWS:  "UNLESS APPROPRIATE DUE PROCESS OF
LAW IS FOLLOWED, EVEN THE JUVENILE WHO HAS VIOLATED THE LAW MAY NOT
FEEL THAT HE IS BEING FAIRLY TREATED AND MAY THEREFORE RESIST THE
REHABILITATIVE EFFORTS OF COURT PERSONNEL."  (FN37)  OF COURSE, IT IS
NOT SUGGESTED THAT JUVENILE COURT JUDGES SHOULD FAIL APPROPRIATELY TO
TAKE ACCOUNT, IN THEIR DEMEANOR AND CONDUCT, OF THE EMOTIONAL AND
PSYCHOLOGICAL ATTITUDE OF THE JUVENILES WITH WHOM THEY ARE CONFRONTED. 
WHILE DUE PROCESS REQUIREMENTS WILL, IN SOME INSTANCES, INTRODUCE A
DEGREE OF ORDER AND REGULARITY TO JUVENILE COURT PROCEEDINGS TO
DETERMINE DELINQUENCY, AND IN CONTESTED CASES WILL INTRODUCE SOME
ELEMENTS OF THE ADVERSARY SYSTEM, NOTHING WILL REQUIRE THAT THE
CONCEPTION OF THE KINDLY JUVENILE JUDGE BE REPLACED BY ITS OPPOSITE,
NOR DO WE HERE RULE UPON THE QUESTION WHETHER ORDINARY DUE PROCESS
REQUIREMENTS MUST BE OBSERVED WITH RESPECT TO HEARINGS TO DETERMINE THE
DISPOSITION OF THE DELINQUENT CHILD. 

ULTIMATELY, HOWEVER, WE CONFRONT THE REALITY OF THAT PORTION OF THE
JUVENILE COURT PROCESS WITH WHICH WE DEAL IN THIS CASE.  A BOY IS
CHARGED WITH MISCONDUCT.  THE BOY IS COMMITTED TO AN INSTITUTION WHERE
HE MAY BE RESTRAINED OF LIBERTY FOR YEARS.  IT IS OF NO CONSTITUTIONAL
CONSEQUENCE - AND OF LIMITED PRACTICAL MEANING - THAT  THE INSTITUTION
TO WHICH HE IS COMMITTED IS CALLED AN INDUSTRIAL SCHOOL.  THE FACT OF
THE MATTER IS THAT, HOWEVER EUPHEMISTIC THE TITLE, A "RECEIVING HOME"
OR AN "INDUSTRIAL SCHOOL" FOR JUVENILES IS AN INSTITUTION OF
CONFINEMENT IN WHICH THE CHILD IS INCARCERATED FOR A GREATER OR LESSER
TIME.  HIS WORLD BECOMES "A BUILDING WITH WHITEWASHED WALLS, REGIMENTED
ROUTINE AND INSTITUTIONAL HOURS  ...  ."  (FN38)  INSTEAD OF MOTHER AND
FATHER AND SISTERS AND BROTHERS AND FRIENDS AND CLASSMATES, HIS WORLD
IS PEOPLED BY GUARDS, CUSTODIANS, STATE EMPLOYEES, AND "DELINQUENTS"
CONFINED WITH HIM FOR ANYTHING FROM WAYWARDNESS (FN39) TO RAPE AND
HOMICIDE. 

IN VIEW OF THIS, IT WOULD BE EXTRAORDINARY IF OUR CONSTITUTION DID
NOT REQUIRE THE PROCEDURAL REGULARITY AND THE EXERCISE OF CARE IMPLIED
IN THE PHRASE "DUE PROCESS."  UNDER OUR CONSTITUTION, THE CONDITION OF
BEING A BOY DOES NOT JUSTIFY A KANGAROO COURT.  THE TRADITIONAL IDEAS
OF JUVENILE COURT PROCEDURE, INDEED, CONTEMPLATED THAT TIME WOULD BE
AVAILABLE AND CARE WOULD BE USED TO ESTABLISH PRECISELY WHAT THE
JUVENILE DID AND WHY HE DID IT - WAS IT A PRANK OF ADOLESCENCE OR A
BRUTAL ACT THREATENING SERIOUS CONSEQUENCES TO HIMSELF OR SOCIETY
UNLESS CORRECTED?  (FN40)  UNDER TRADITIONAL NOTIONS, ONE WOULD ASSUME
THAT IN A CASE LIKE THAT OF GERALD GAULT, WHERE THE JUVENILE APPEARS TO
HAVE A HOME, A WORKING MOTHER AND FATHER, AND AN OLDER BROTHER, THE
JUVENILE JUDGE WOULD HAVE MADE A CAREFUL INQUIRY AND JUDGMENT AS TO THE
POSSIBILITY THAT THE BOY COULD BE DISCIPLINED AND DEALT WITH AT HOME,
DESPITE HIS PREVIOUS TRANSGRESSIONS.  (FN41)  INDEED, SO FAR AS APPEARS
IN THE RECORD BEFORE US, EXCEPT FOR SOME CONVERSATION WITH GERALD ABOUT
HIS SCHOOL WORK AND HIS "WANTING TO GO TO ...  GRAND CANYON WITH HIS
FATHER," THE POINTS TO WHICH THE JUDGE DIRECTED HIS ATTENTION WERE
LITTLE DIFFERENT FROM THOSE THAT WOULD BE INVOLVED IN DETERMINING ANY
CHARGE OF VIOLATION OF A PENAL STATUTE.  (FN42)  THE ESSENTIAL
DIFFERENCE BETWEEN GERALD'S CASE AND A NORMAL CRIMINAL CASE IS THAT
SAFEGUARDS AVAILABLE TO ADULTS WERE DISCARDED IN GERALD'S CASE.  THE
SUMMARY PROCEDURE AS WELL AS THE LONG COMMITMENT WAS POSSIBLE BECAUSE
GERALD WAS 15 YEARS OF AGE INSTEAD OF OVER 18. 

IF GERALD HAD BEEN OVER 18, HE WOULD NOT HAVE BEEN SUBJECT TO
JUVENILE COURT PROCEEDINGS.  (FN43) FOR THE PARTICULAR OFFENSE
IMMEDIATELY INVOLVED, THE MAXIMUM PUNISHMENT WOULD HAVE BEEN A FINE OF
$5 TO $50, OR IMPRISONMENT IN JAIL FOR NOT MORE THAN TWO MONTHS. 
INSTEAD, HE WAS COMMITTED TO CUSTODY FOR A MAXIMUM OF SIX YEARS.  IF HE
HAD BEEN OVER 18 AND HAD COMMITTED AN OFFENSE TO WHICH SUCH A SENTENCE
MIGHT APPLY, HE WOULD HAVE BEEN ENTITLED TO SUBSTANTIAL RIGHTS UNDER
THE CONSTITUTION OF THE UNITED STATES AS WELL AS UNDER ARIZONA'S LAWS
AND CONSTITUTION.  THE UNITED STATES CONSTITUTION WOULD GUARANTEE HIM
RIGHTS AND PROTECTIONS WITH RESPECT TO ARREST, SEARCH AND SEIZURE, AND
PRETRIAL INTERROGATION.  IT WOULD ASSURE HIM OF SPECIFIC NOTICE OF THE
CHARGES AND ADEQUATE TIME TO DECIDE HIS COURSE OF ACTION AND TO PREPARE
HIS DEFENSE.  HE WOULD BE ENTITLED TO CLEAR ADVICE THAT HE COULD BE
REPRESENTED BY COUNSEL, AND, AT LEAST IF A FELONY WERE INVOLVED, THE
STATE WOULD BE REQUIRED TO PROVIDE COUNSEL IF HIS PARENTS WERE UNABLE
TO AFFORD IT.  IF THE COURT ACTED ON THE BASIS OF HIS CONFESSION,
CAREFUL PROCEDURES WOULD BE REQUIRED TO ASSURE ITS VOLUNTARINESS.  IF
THE CASE WENT TO TRIAL, CONFRONTATION AND OPPORTUNITY FOR CROSS
EXAMINATION WOULD BE GUARANTEED.  SO WIDE A GULF BETWEEN THE STATE'S
TREATMENT OF THE ADULT AND OF THE CHILD REQUIRES A BRIDGE STURDIER THAN
MERE VERBIAGE, AND REASONS MORE PERSUASIVE THAN CLICHE CAN PROVIDE.  AS
WHEELER AND COTTRELL HAVE PUT IT, "THE RHETORIC OF THE JUVENILE COURT
MOVEMENT HAS DEVELOPED WITHOUT ANY NECESSARILY CLOSE CORRESPONDENCE TO
THE REALITIES OF COURT AND INSTITUTIONAL ROUTINES."  (FN44) 

IN KENT V. UNITED STATES, SUPRA, WE STATED THAT THE JUVENILE COURT
JUDGE'S EXERCISE OF THE POWER OF THE STATE AS PARENS PATRIAE WAS NOT
UNLIMITED.  WE SAID THAT "THE ADMONITION TO FUNCTION IN A 'PARENTAL'
RELATIONSHIP IS NOT AN INVITATION TO PROCEDURAL ARBITRARINESS."  (FN45)
WITH RESPECT TO THE WAIVER BY THE JUVENILE COURT TO THE ADULT COURT OF
JURISDICTION OVER AN OFFENSE COMMITTED BY A YOUTH, WE SAID THAT "THERE
IS NO PLACE IN OUR SYSTEM OF LAW FOR REACHING A RESULT OF SUCH
TREMENDOUS CONSEQUENCES WITHOUT CEREMONY - WITHOUT HEARING, WITHOUT
EFFECTIVE ASSISTANCE OF COUNSEL, WITHOUT A STATEMENT OF REASONS." 
(FN46)  WE ANNOUNCED WITH RESPECT TO SUCH WAIVER PROCEEDINGS THAT WHILE
"WE DO NOT MEAN  ...  TO INDICATE THAT THE HEARING TO BE HELD MUST
CONFORM WITH ALL OF THE REQUIREMENTS OF A CRIMINAL TRIAL OR EVEN OF THE
USUAL ADMINISTRATIVE HEARING; BUT WE DO HOLD THAT THE HEARING MUST
MEASURE UP TO THE ESSENTIALS OF DUE PROCESS AND FAIR TREATMENT." 
(FN47)  WE REITERATE THIS VIEW, HERE IN CONNECTION WITH A JUVENILE
COURT ADJUDICATION OF "DELINQUENCY," AS A REQUIREMENT WHICH IS PART OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF OUR
CONSTITUTION.  (FN48) 

WE NOW TURN TO THE SPECIFIC ISSUES WHICH ARE PRESENTED TO US IN THE
PRESENT CASE. 

                           III. 

  NOTICE OF CHARGES. 

APPELLANTS ALLEGE THAT THE ARIZONA JUVENILE CODE IS UNCONSTITUTIONAL
OR ALTERNATIVELY THAT THE PROCEEDINGS BEFORE THE JUVENILE COURT WERE
CONSTITUTIONALLY DEFECTIVE BECAUSE OF FAILURE TO PROVIDE ADEQUATE
NOTICE OF THE HEARINGS.  NO NOTICE WAS GIVEN TO GERALD'S PARENTS WHEN
HE WAS TAKEN INTO CUSTODY ON MONDAY, JUNE 8.  ON THAT NIGHT, WHEN MRS.
GAULT WENT TO THE DETENTION HOME, SHE WAS ORALLY INFORMED THAT THERE
WOULD BE A HEARING THE NEXT AFTERNOON AND WAS TOLD THE REASON WHY
GERALD WAS IN CUSTODY.  THE ONLY WRITTEN NOTICE GERALD'S PARENTS
RECEIVED AT ANY TIME WAS A NOTE ON PLAIN PAPER FROM OFFICER FLAGG
DELIVERED ON THURSDAY OR FRIDAY, JUNE 11 OR 12, TO THE EFFECT THAT THE
JUDGE HAD SET MONDAY, JUNE 15, "FOR FURTHER HEARINGS ON GERALD'S
DELINQUENCY." 

A "PETITION" WAS FILED WITH THE COURT ON JUNE 9 BY OFFICER FLAGG,
RECITING ONLY THAT HE WAS INFORMED AND BELIEVED THAT "SAID MINOR IS A
DELINQUENT MINOR AND THAT IT IS NECESSARY THAT SOME ORDER BE MADE BY
THE HONORABLE COURT FOR SAID MINOR'S WELFARE."  THE APPLICABLE ARIZONA
STATUTE PROVIDES FOR A PETITION TO BE FILED IN JUVENILE COURT, ALLEGING
IN GENERAL TERMS THAT THE CHILD IS "NEGLECTED, DEPENDENT OR
DELINQUENT."  THE STATUTE EXPLICITLY STATES THAT SUCH A GENERAL
ALLEGATION IS SUFFICIENT, "WITHOUT ALLEGING THE FACTS."  (FN49)  THERE
IS NO REQUIREMENT THAT THE PETITION BE SERVED AND IT WAS NOT SERVED
UPON, GIVEN TO, OR SHOWN TO GERALD OR HIS PARENTS.  (FN50) 

THE SUPREME COURT OF ARIZONA REJECTED APPLICANTS' CLAIM THAT DUE
PROCESS WAS DENIED BECAUSE OF INADEQUATE NOTICE.  IT STATED THAT "MRS. 
GAULT KNEW THE EXACT NATURE OF THE CHARGE AGAINST GERALD FROM THE DAY
HE WAS TAKEN TO THE DETENTION HOME."  THE COURT ALSO POINTED OUT THAT
THE GAULTS APPEARED AT THE TWO HEARINGS "WITHOUT OBJECTION."  THE COURT
HELD THAT BECAUSE "THE POLICY OF THE JUVENILE LAW IS TO HIDE YOUTHFUL
ERRORS FROM THE FULL GAZE OF THE PUBLIC AND BURY THEM IN THE GRAVEYARD
OF THE FORGOTTEN PAST," ADVANCE NOTICE OF THE SPECIFIC CHARGES OR BASIS
FOR TAKING THE JUVENILE INTO CUSTODY AND FOR THE HEARING IS NOT
NECESSARY.  IT HELD THAT THE APPROPRIATE RULE IS THAT "THE INFANT AND
HIS PARENT OR GUARDIAN WILL RECEIVE A PETITION ONLY RECITING A
CONCLUSION OF DELINQUENCY.  (FN51)  BUT NO LATER THAN THE INITIAL
HEARING BY THE JUDGE, THEY MUST BE ADVISED OF THE FACTS INVOLVED IN THE
CASE.  IF THE CHARGES ARE DENIED, THEY MUST BE GIVEN A REASONABLE
PERIOD OF TIME TO PREPARE." 

WE CANNOT AGREE WITH THE COURT'S CONCLUSION THAT ADEQUATE NOTICE WAS
GIVEN IN THIS CASE.  NOTICE, TO COMPLY WITH DUE PROCESS REQUIREMENTS,
MUST BE GIVEN SUFFICIENTLY IN ADVANCE OF SCHEDULED COURT PROCEEDINGS SO
THAT REASONABLE OPPORTUNITY TO PREPARE WILL BE AFFORDED, AND IT MUST
"SET FORTH THE ALLEGED MISCONDUCT WITH PARTICULARITY."  (FN52)  IT IS
OBVIOUS, AS WE HAVE DISCUSSED ABOVE, THAT NO PURPOSE OF SHIELDING THE
CHILD FROM THE PUBLIC STIGMA OF KNOWLEDGE OF HIS HAVING BEEN TAKEN INTO
CUSTODY AND SCHEDULED FOR HEARING IS SERVED BY THE PROCEDURE APPROVED
BY THE COURT BELOW.  THE "INITIAL HEARING" IN THE PRESENT CASE WAS A
HEARING ON THE MERITS.  NOTICE AT THAT TIME IS NOT TIMELY; AND EVEN IF
THERE WERE A CONCEIVABLE PURPOSE SERVED BY THE DEFERRAL PROPOSED BY THE
COURT BELOW, IT WOULD HAVE TO YIELD TO THE REQUIREMENTS THAT THE CHILD
AND HIS PARENTS OR GUARDIAN BE NOTIFIED, IN WRITING, OF THE SPECIFIC
CHARGE OR FACTUAL ALLEGATIONS TO BE CONSIDERED AT THE HEARING, AND THAT
SUCH WRITTEN NOTICE BE GIVEN AT THE EARLIEST PRACTICABLE TIME, AND IN
ANY EVENT SUFFICIENTLY IN ADVANCE OF THE HEARING TO PERMIT
PREPARATION.  DUE PROCESS OF LAW REQUIRES NOTICE OF THE SORT WE HAVE
DESCRIBED - THAT IS, NOTICE WHICH WOULD BE DEEMED CONSTITUTIONALLY
ADEQUATE IN A CIVIL OR CRIMINAL PROCEEDING.  (FN53)  IT DOES NOT ALLOW
A HEARING TO BE HELD IN WHICH A YOUTH'S FREEDOM AND HIS PARENTS' RIGHT
TO HIS CUSTODY ARE AT STAKE WITHOUT GIVING THEM TIMELY NOTICE, IN
ADVANCE OF THE HEARING, OF THE SPECIFIC ISSUES THAT THEY MUST MEET. 
NOR, IN THE CIRCUMSTANCES OF THIS CASE, CAN IT REASONABLY BE SAID THAT
THE REQUIREMENT OF NOTICE WAS WAIVED.  (FN54)

                                 IV.

                   RIGHT TO COUNSEL. 

APPELLANTS CHARGE THAT THE JUVENILE COURT PROCEEDINGS WERE FATALLY
DEFECTIVE BECAUSE THE COURT DID NOT ADVISE GERALD OR HIS PARENTS OF
THEIR RIGHT TO COUNSEL, AND PROCEEDED WITH THE HEARING, THE
ADJUDICATION OF DELINQUENCY AND THE ORDER OF COMMITMENT IN THE ABSENCE
OF COUNSEL FOR THE CHILD AND HIS PARENTS OR AN EXPRESS WAIVER OF THE
RIGHT THERETO.  THE SUPREME COURT OF ARIZONA POINTED OUT THAT "THERE IS
DISAGREEMENT AMONG THE VARIOUS JURISDICTIONS AS TO WHETHER THE COURT
MUST ADVISE THE INFANT THAT HE HAS A RIGHT TO COUNSEL."  (FN55)  IT
NOTED ITS OWN DECISION IN ARIZONA STATE DEPT. OF PUBLIC WELFARE V.
BARLOW, 80 ARIZ. 249, 296 P.2D 298 (1956), TO THE EFFECT "THAT THE
PARENTS OF AN INFANT IN A JUVENILE PROCEEDING CANNOT BE DENIED
REPRESENTATION BY COUNSEL OF THEIR CHOOSING."  IT REFERRED TO A
PROVISION OF THE JUVENILE CODE WHICH IT CHARACTERIZED AS REQUIRING
"THAT THE PROBATION OFFICER SHALL LOOK AFTER THE INTERESTS OF
NEGLECTED, DELINQUENT AND DEPENDENT CHILDREN," INCLUDING REPRESENTING
THEIR INTERESTS IN COURT.  (FN56)  THE COURT ARGUED THAT "THE PARENT
AND THE PROBATION OFFICER MAY BE RELIED UPON TO PROTECT THE INFANT'S
INTERESTS."  ACCORDINGLY IT REJECTED THE PROPOSITION THAT "DUE PROCESS
REQUIRES THAT AN INFANT HAVE A RIGHT TO COUNSEL."  IT SAID THAT
JUVENILE COURTS HAVE THE DISCRETION, BUT NOT THE DUTY, TO ALLOW SUCH
REPRESENTATION; IT REFERRED SPECIFICALLY TO THE SITUATION IN WHICH THE
JUVENILE COURT DISCERNS CONFLICT BETWEEN THE CHILD AND HIS PARENTS AS
AN INSTANCE IN WHICH THIS DISCRETION MIGHT BE EXERCISED.  WE DO NOT
AGREE.  PROBATION OFFICERS, IN THE ARIZONA SCHEME, ARE ALSO ARRESTING
OFFICERS.  THEY INITIATE PROCEEDINGS AND FILE PETITIONS WHICH THEY
VERIFY, AS HERE, ALLEGING THE DELINQUENCY OF THE CHILD; AND THEY
TESTIFY, AS HERE, AGAINST THE CHILD.  AND HERE THE PROBATION OFFICER
WAS ALSO SUPERINTENDENT OF THE DETENTION HOME.  THE PROBATION OFFICER
CANNOT ACT AS COUNSEL FOR THE CHILD.  HIS ROLE IN THE ADJUDICATORY
HEARING, BY STATUTE AND IN FACT, IS AS ARRESTING OFFICER AND WITNESS
AGAINST THE CHILD.  NOR CAN THE JUDGE REPRESENT THE CHILD.  THERE IS NO
MATERIAL DIFFERENCE IN THIS RESPECT BETWEEN ADULT AND JUVENILE
PROCEEDINGS OF THE SORT HERE INVOLVED.  IN ADULT PROCEEDINGS, THIS
CONTENTION HAS BEEN FORECLOSED BY DECISIONS OF THIS COURT.  (FN57)  A
PROCEEDING WHERE THE ISSUE IS WHETHER THE CHILD WILL BE FOUND TO BE
"DELINQUENT" AND SUBJECTED TO THE LOSS OF HIS LIBERTY FOR YEARS IS
COMPARABLE IN SERIOUSNESS TO A FELONY PROSECUTION.  THE JUVENILE NEEDS
THE ASSISTANCE OF COUNSEL TO COPE WITH PROBLEMS OF LAW,  (FN58)  TO
MAKE SKILLED INQUIRY INTO THE FACTS, TO INSIST UPON REGULARITY OF THE
PROCEEDINGS, AND TO ASCERTAIN WHETHER HE HAS A DEFENSE AND TO PREPARE
AND SUBMIT IT.  THE CHILD "REQUIRES THE GUIDING HAND OF COUNSEL AT
EVERY STEP IN THE PROCEEDINGS AGAINST HIM."  (FN59)  JUST AS IN KENT V.
UNITED STATES, SUPRA, AT 561-562, WE INDICATED OUR AGREEMENT WITH THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
THAT THE ASSISTANCE OF COUNSEL IS ESSENTIAL FOR PURPOSES OF WAIVER
PROCEEDINGS, SO WE HOLD NOW THAT IT IS EQUALLY ESSENTIAL FOR THE
DETERMINATION OF DELINQUENCY, CARRYING WITH IT THE AWESOME PROSPECT OF
INCARCERATION IN A STATE INSTITUTION UNTIL THE JUVENILE REACHES THE AGE
OF 21.  (FN60) 

DURING THE LAST DECADE, COURT DECISIONS, (FN61) EXPERTS, (FN62) AND
LEGISLATURES (FN63) HAVE DEMONSTRATED INCREASING RECOGNITION OF THIS
VIEW.  IN AT LEAST ONE-THIRD OF THE STATES, STATUTES NOW PROVIDE FOR
THE RIGHT OF REPRESENTATION BY RETAINED COUNSEL IN JUVENILE DELINQUENCY
PROCEEDINGS, NOTICE OF THE RIGHT, OR ASSIGNMENT OF COUNSEL, OR A
COMBINATION OF THESE.  IN OTHER STATES, COURT RULES HAVE SIMILAR
PROVISIONS.  (FN64) 

THE PRESIDENT'S CRIME COMMISSION HAS RECENTLY RECOMMENDED THAT IN
ORDER TO ASSURE "PROCEDURAL JUSTICE FOR THE CHILD," IT IS NECESSARY
THAT "COUNSEL  ...  BE APPOINTED AS A MATTER OF COURSE WHEREVER
COERCIVE ACTION IS A POSSIBILITY, WITHOUT REQUIRING ANY AFFIRMATIVE
CHOICE BY CHILD OR PARENT."  (FN65)  AS STATED BY THE AUTHORITATIVE
"STANDARDS FOR JUVENILE AND FAMILY COURTS," PUBLISHED BY THE CHILDREN'S
BUREAU OF THE UNITED STATES DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE: 

"AS A COMPONENT PART OF A FAIR HEARING REQUIRED BY DUE PROCESS
GUARANTEED UNDER THE 14TH AMENDMENT, NOTICE OF THE RIGHT TO COUNSEL
SHOULD BE REQUIRED AT ALL HEARINGS AND COUNSEL PROVIDED UPON REQUEST
WHEN THE FAMILY IS FINANCIALLY UNABLE TO EMPLOY COUNSEL."  STANDARDS,
P. 57. 

THIS STATEMENT WAS "REVIEWED" BY THE NATIONAL COUNCIL OF JUVENILE
COURT JUDGES AT ITS 1965 CONVENTION AND THEY "FOUND NO FAULT" WITH IT.
(FN66)  THE NEW YORK FAMILY COURT ACT CONTAINS THE FOLLOWING
STATEMENT: 

"THIS ACT DECLARES THAT MINORS HAVE A RIGHT TO THE ASSISTANCE OF
COUNSEL OF THEIR OWN CHOOSING OR OF LAW GUARDIANS  (FN67)  IN NEGLECT
PROCEEDINGS UNDER ARTICLE THREE AND IN PROCEEDINGS TO DETERMINE
JUVENILE DELINQUENCY AND WHETHER A PERSON IS IN NEED OF SUPERVISION
UNDER ARTICLE SEVEN.  THIS DECLARATION IS BASED ON A FINDING THAT
COUNSEL IS OFTEN INDISPENSABLE TO A PRACTICAL REALIZATION OF DUE
PROCESS OF LAW AND MAY BE HELPFUL IN MAKING REASONED DETERMINATIONS OF
FACT AND PROPER ORDERS OF DISPOSITION."  (FN68) 

THE ACT PROVIDES THAT "AT THE COMMENCEMENT OF ANY HEARING" UNDER THE
DELINQUENCY ARTICLE OF THE STATUTE, THE JUVENILE AND HIS PARENT SHALL
BE ADVISED OF THE JUVENILE'S "RIGHT TO BE REPRESENTED BY COUNSEL CHOSEN
BY HIM OR HIS PARENT  ...  OR BY A LAW GUARDIAN ASSIGNED BY THE COURT
...  ."  (FN69)  THE CALIFORNIA ACT (1961) ALSO REQUIRES APPOINTMENT OF
COUNSEL.  (FN70) 

WE CONCLUDE THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES THAT IN RESPECT OF PROCEEDINGS TO DETERMINE DELINQUENCY WHICH
MAY RESULT IN COMMITMENT TO AN INSTITUTION IN WHICH THE JUVENILE'S
FREEDOM IS CURTAILED, THE CHILD AND HIS PARENTS MUST BE NOTIFIED OF THE
CHILD'S RIGHT TO BE REPRESENTED BY COUNSEL RETAINED BY THEM, OR IF THEY
ARE UNABLE TO AFFORD COUNSEL, THAT COUNSEL WILL BE APPOINTED TO
REPRESENT THE CHILD. 

AT THE HABEAS CORPUS PROCEEDING, MRS. GAULT TESTIFIED THAT SHE KNEW
THAT SHE COULD HAVE APPEARED WITH COUNSEL AT THE JUVENILE HEARING. 
THIS KNOWLEDGE IS NOT A WAIVER OF THE RIGHT TO COUNSEL WHICH SHE AND
HER JUVENILE SON HAD, AS WE HAVE DEFINED IT.  THEY HAD A RIGHT
EXPRESSLY TO BE ADVISED THAT THEY MIGHT RETAIN COUNSEL AND TO BE
CONFRONTED WITH THE NEED FOR SPECIFIC CONSIDERATION OF WHETHER THEY DID
OR DID NOT CHOOSE TO WAIVE THE RIGHT.  IF THEY WERE UNABLE TO AFFORD TO
EMPLOY COUNSEL, THEY WERE ENTITLED IN VIEW OF THE SERIOUSNESS OF THE
CHARGE AND THE POTENTIAL COMMITMENT, TO APPOINTED COUNSEL, UNLESS THEY
CHOSE WAIVER.  MRS. GAULT'S KNOWLEDGE THAT SHE COULD EMPLOY COUNSEL WAS
NOT AN "INTENTIONAL RELINQUISHMENT OR ABANDONMENT" OF A FULLY KNOWN
RIGHT.  (FN71)

     V.

                  CONFRONTATION, SELF-INCRIMINATION,

                          CROSS-EXAMINATION. 

APPELLANTS URGE THAT THE WRIT OF HABEAS CORPUS SHOULD HAVE BEEN
GRANTED BECAUSE OF THE DENIAL OF THE RIGHTS OF CONFRONTATION AND CROSS
EXAMINATION IN THE JUVENILE COURT HEARINGS, AND BECAUSE THE PRIVILEGE
AGAINST SELF-INCRIMINATION WAS NOT OBSERVED.  THE JUVENILE COURT JUDGE
TESTIFIED AT THE HABEAS CORPUS HEARING THAT HE HAD PROCEEDED ON THE
BASIS OF GERALD'S ADMISSIONS AT THE TWO HEARINGS.   APPELLANTS ATTACK
THIS ON THE GROUND THAT THE ADMISSIONS WERE OBTAINED IN DISREGARD OF
THE PRIVILEGE AGAINST SELF-INCRIMINATION.  (FN72)  IF THE CONFESSION IS
DISREGARDED, APPELLANTS ARGUE THAT THE DELINQUENCY CONCLUSION, SINCE IT
WAS FUNDAMENTALLY BASED ON A FINDING THAT GERALD HAD MADE LEWD REMARKS
DURING THE PHONE CALL TO MRS. COOK, IS FATALLY DEFECTIVE FOR FAILURE TO
ACCORD THE RIGHTS OF CONFRONTATION AND CROSS-EXAMINATION WHICH THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION
GUARANTEES IN STATE PROCEEDINGS GENERALLY.  (FN73) 

OUR FIRST QUESTION, THEN, IS WHETHER GERALD'S ADMISSION WAS
IMPROPERLY OBTAINED AND RELIED ON AS THE BASIS OF DECISION, IN CONFLICT
WITH THE FEDERAL CONSTITUTION.  FOR THIS PURPOSE, IT IS NECESSARY
BRIEFLY TO RECALL THE RELEVANT FACTS. 

MRS. COOK, THE COMPLAINANT, AND THE RECIPIENT OF THE ALLEGED
TELEPHONE CALL, WAS NOT CALLED AS A WITNESS.  GERALD'S MOTHER ASKED THE
JUVENILE COURT JUDGE WHY MRS. COOK WAS NOT PRESENT AND THE JUDGE
REPLIED THAT "SHE DIDN'T HAVE TO BE PRESENT."  SO FAR AS APPEARS, MRS.
COOK WAS SPOKEN TO ONLY ONCE, BY OFFICER FLAGG, AND THIS WAS BY
TELEPHONE.  THE JUDGE DID NOT SPEAK WITH HER ON ANY OCCASION.  GERALD
HAD BEEN QUESTIONED BY THE PROBATION OFFICER AFTER HAVING BEEN TAKEN
INTO CUSTODY.  THE EXACT CIRCUMSTANCES OF THIS QUESTIONING DO NOT
APPEAR BUT ANY ADMISSIONS GERALD MAY HAVE MADE AT THIS TIME DO NOT
APPEAR IN THE RECORD.  (FN74)  GERALD WAS ALSO QUESTIONED BY THE
JUVENILE COURT JUDGE AT EACH OF THE TWO HEARINGS.  THE JUDGE TESTIFIED
IN THE HABEAS CORPUS PROCEEDING THAT GERALD ADMITTED MAKING "SOME OF
THE LEWD STATEMENTS  ...  BUT NOT ANY OF THE MORE SERIOUS LEWD
STATEMENTS."  THERE WAS CONFLICT AND UNCERTAINTY AMONG THE WITNESSES AT
THE HABEAS CORPUS PROCEEDING - THE JUVENILE COURT JUDGE, MR. AND MRS.
GAULT, AND THE PROBATION OFFICER - AS TO WHAT GERALD DID OR DID NOT
ADMIT. 

WE SHALL ASSUME THAT GERALD MADE ADMISSIONS OF THE SORT DESCRIBED BY
THE JUVENILE COURT JUDGE, AS QUOTED ABOVE.  NEITHER GERALD NOR HIS
PARENTS WERE ADVISED THAT HE DID NOT HAVE TO TESTIFY OR MAKE A
STATEMENT, OR THAT AN INCRIMINATING STATEMENT MIGHT RESULT IN HIS
COMMITMENT AS A "DELINQUENT." 

THE ARIZONA SUPREME COURT REJECTED APPELLANTS' CONTENTION THAT GERALD
HAD A RIGHT TO BE ADVISED THAT HE NEED NOT INCRIMINATE HIMSELF.  IT
SAID:  "WE THINK THE NECESSARY FLEXIBILITY FOR INDIVIDUALIZED TREATMENT
WILL BE ENHANCED BY A RULE WHICH DOES NOT REQUIRE THE JUDGE TO ADVISE
THE INFANT OF A PRIVILEGE AGAINST SELF-INCRIMINATION." 

IN REVIEWING THIS CONCLUSION OF ARIZONA'S SUPREME COURT, WE EMPHASIZE
AGAIN THAT WE ARE HERE CONCERNED ONLY WITH A PROCEEDING TO DETERMINE
WHETHER A MINOR IS A "DELINQUENT" AND WHICH MAY RESULT IN COMMITMENT TO
A STATE INSTITUTION.  SPECIFICALLY, THE QUESTION IS WHETHER, IN SUCH A
PROCEEDING, AN ADMISSION BY THE JUVENILE MAY BE USED AGAINST HIM IN THE
ABSENCE OF CLEAR AND UNEQUIVOCAL EVIDENCE THAT THE ADMISSION WAS MADE
WITH KNOWLEDGE THAT HE WAS NOT OBLIGED TO SPEAK AND WOULD NOT BE
PENALIZED FOR REMAINING SILENT.  IN LIGHT OF MIRANDA V. ARIZONA, 384
U.S. 436 (1966), WE MUST ALSO CONSIDER WHETHER, IF THE PRIVILEGE
AGAINST SELF-INCRIMINATION IS AVAILABLE, IT CAN EFFECTIVELY BE WAIVED
UNLESS COUNSEL IS PRESENT OR THE RIGHT TO COUNSEL HAS BEEN WAIVED. 

IT HAS LONG BEEN RECOGNIZED THAT THE ELICITING AND USE OF CONFESSIONS
OR ADMISSIONS REQUIRE CAREFUL SCRUTINY.  DEAN WIGMORE STATES: 

"THE GROUND OF DISTRUST OF CONFESSIONS MADE IN CERTAIN SITUATIONS IS,
IN A ROUGH AND INDEFINITE WAY, JUDICIAL EXPERIENCE.  THERE HAS BEEN NO
CAREFUL COLLECTION OF STATISTICS OF UNTRUE CONFESSIONS, NOR HAS ANY
GREAT NUMBER OF INSTANCES BEEN EVEN LOOSELY REPORTED  ...  BUT ENOUGH
HAVE BEEN VERIFIED TO FORTIFY THE CONCLUSION, BASED ON ORDINARY
OBSERVATION OF HUMAN CONDUCT, THAT UNDER CERTAIN STRESSES A PERSON,
ESPECIALLY ONE OF DEFECTIVE MENTALITY OR PECULIAR TEMPERAMENT, MAY
FALSELY ACKNOWLEDGE GUILT.  THIS POSSIBILITY ARISES WHEREVER THE
INNOCENT PERSON IS PLACED IN SUCH A SITUATION THAT THE UNTRUE
ACKNOWLEDGMENT OF GUILT IS AT THE TIME THE MORE PROMISING OF TWO
ALTERNATIVES BETWEEN WHICH HE IS OBLIGED TO CHOOSE; THAT IS, HE CHOOSES
ANY RISK THAT MAY BE IN FALSELY ACKNOWLEDGING GUILT, IN PREFERENCE TO
SOME WORSE ALTERNATIVE ASSOCIATED WITH SILENCE. 

     *         *   *         *         * 

"THE PRINCIPLE, THEN, UPON WHICH A CONFESSION MAY BE EXCLUDED IS THAT
IT IS, UNDER CERTAIN CONDITIONS, TESTIMONIALLY UNTRUSTWORTHY  ...  .
THE ESSENTIAL FEATURE IS THAT THE PRINCIPLE OF EXCLUSION IS A
TESTIMONIAL ONE, ANALOGOUS TO THE OTHER PRINCIPLES WHICH EXCLUDE
NARRATIONS AS UNTRUSTWORTHY  ...  ."  (FN75) 

THIS COURT HAS EMPHASIZED THAT ADMISSIONS AND CONFESSIONS OF
JUVENILES REQUIRE SPECIAL CAUTION.  IN HALEY V. OHIO, 332 U.S. 596,
WHERE THIS COURT REVERSED THE CONVICTION OF A 15-YEAR-OLD BOY FOR
MURDER, MR. JUSTICE DOUGLAS SAID: 

"WHAT TRANSPIRED WOULD MAKE US PAUSE FOR CAREFUL INQUIRY IF A MATURE
MAN WERE INVOLVED.  AND WHEN, AS HERE, A MERE CHILD - AN EASY VICTIM OF
THE LAW - IS BEFORE US, SPECIAL CARE IN SCRUTINIZING THE RECORD MUST BE
USED.  AGE 15 IS A TENDER AND DIFFICULT AGE FOR A BOY OF ANY RACE.  HE
CANNOT BE JUDGED BY THE MORE EXACTING STANDARDS OF MATURITY.  THAT
WHICH WOULD LEAVE A MAN COLD AND UNIMPRESSED CAN OVERAWE AND OVERWHELM
A LAD IN HIS EARLY TEENS.  THIS IS THE PERIOD OF GREAT INSTABILITY
WHICH THE CRISIS OF ADOLESCENCE PRODUCES.  A 15-YEAR-OLD LAD,
QUESTIONED THROUGH THE DEAD OF NIGHT BY RELAYS OF POLICE, IS A READY
VICTIM OF THE INQUISITION.  MATURE MEN POSSIBLY MIGHT STAND THE ORDEAL
FROM MIDNIGHT TO 5 A.M.  BUT WE CANNOT BELIEVE THAT A LAD OF TENDER
YEARS IS A MATCH FOR THE POLICE IN SUCH A CONTEST.  HE NEEDS COUNSEL
AND SUPPORT IF HE IS NOT TO BECOME THE VICTIM FIRST OF FEAR, THEN OF
PANIC.  HE NEEDS SOMEONE ON WHOM TO LEAN LEST THE OVERPOWERING PRESENCE
OF THE LAW, AS HE KNOWS IT, CRUSH HIM.  NO FRIEND STOOD AT THE SIDE OF
THIS 15-YEAR-OLD BOY AS THE POLICE, WORKING IN RELAYS, QUESTIONED HIM
HOUR AFTER HOUR, FROM MIDNIGHT TO DAWN.  NO LAWYER STOOD GUARD TO MAKE
SURE THAT THE POLICE WENT SO FAR AND NO FARTHER, TO SEE TO IT THAT THEY
STOPPED SHORT OF THE POINT WHERE HE BECAME THE VICTIM OF COERCION.  NO
COUNSEL OR FRIEND WAS CALLED DURING THE CRITICAL HOURS OF
QUESTIONING."  (FN76) 

IN HALEY, AS WE HAVE DISCUSSED, THE BOY WAS CONVICTED IN AN ADULT
COURT, AND NOT A JUVENILE COURT.   IN NOTABLE DECISIONS, THE NEW YORK
COURT OF APPEALS AND THE SUPREME COURT OF NEW JERSEY HAVE RECENTLY
CONSIDERED DECISIONS OF JUVENILE COURTS IN WHICH BOYS HAVE BEEN
ADJUDGED "DELINQUENT" ON THE BASIS OF CONFESSIONS OBTAINED IN
CIRCUMSTANCES COMPARABLE TO THOSE IN HALEY.  IN BOTH INSTANCES, THE
STATE CONTENDED BEFORE ITS HIGHEST TRIBUNAL THAT CONSTITUTIONAL
REQUIREMENTS GOVERNING INCULPATORY STATEMENTS APPLICABLE IN ADULT
COURTS DO NOT APPLY TO JUVENILE PROCEEDINGS.  IN EACH CASE, THE STATE'S
CONTENTION WAS REJECTED, AND THE JUVENILE COURT'S DETERMINATION OF
DELINQUENCY WAS SET ASIDE ON THE GROUNDS OF INADMISSIBILITY OF THE
CONFESSION.  IN THE MATTERS OF GREGORY W. AND GERALD S., 19 N.Y.2D 55,
224 N.E.2D 102 (1966)(OPINION BY KEATING, J.), AND IN THE INTERESTS OF
CARLO AND STASILOWICZ, 48 N.J. 224, 225 A.2D 110 (1966)(OPINION BY
PROCTOR, J.). 

THE PRIVILEGE AGAINST SELF-INCRIMINATION IS, OF COURSE, RELATED TO
THE QUESTION OF THE SAFEGUARDS NECESSARY TO ASSURE THAT ADMISSIONS OR
CONFESSIONS ARE REASONABLY TRUSTWORTHY, THAT THEY ARE NOT THE MERE
FRUITS OF FEAR OR COERCION, BUT ARE RELIABLE EXPRESSIONS OF THE TRUTH. 
THE ROOTS OF THE PRIVILEGE ARE, HOWEVER, FAR DEEPER.  THEY TAP THE
BASIC STREAM OF RELIGIOUS AND POLITICAL PRINCIPLE BECAUSE THE PRIVILEGE
REFLECTS THE LIMITS OF THE INDIVIDUAL'S ATTORNMENT TO THE STATE AND -
IN A PHILOSOPHICAL SENSE - INSISTS UPON THE EQUALITY OF THE INDIVIDUAL
AND THE STATE.  (FN77)  IN OTHER WORDS, THE PRIVILEGE HAS A BROADER AND
DEEPER THRUST THAN THE RULE WHICH PREVENTS THE USE OF CONFESSIONS WHICH
ARE THE PRODUCT OF COERCION BECAUSE COERCION IS THOUGHT TO CARRY WITH
IT THE DANGER OF UNRELIABILITY.  ONE OF ITS PURPOSES IS TO PREVENT THE
STATE, WHETHER BY FORCE OR BY PSYCHOLOGICAL DOMINATION, FROM OVERCOMING
THE MIND AND WILL OF THE PERSON UNDER INVESTIGATION AND DEPRIVING HIM
OF THE FREEDOM TO DECIDE WHETHER TO ASSIST THE STATE IN SECURING HIS
CONVICTION.  (FN78) 

IT WOULD INDEED BE SURPRISING IF THE PRIVILEGE AGAINST SELF
INCRIMINATION WERE AVAILABLE TO HARDENED CRIMINALS BUT NOT TO
CHILDREN.  THE LANGUAGE OF THE FIFTH AMENDMENT, APPLICABLE TO THE
STATES BY OPERATION OF THE FOURTEENTH AMENDMENT, IS UNEQUIVOCAL AND
WITHOUT EXCEPTION.  AND THE SCOPE OF THE PRIVILEGE IS COMPREHENSIVE. 
AS MR. JUSTICE WHITE, CONCURRING, STATED IN MURPHY V. WATERFRONT
COMMISSION, 378 U.S. 52, 94 (1964): 

"THE PRIVILEGE CAN BE CLAIMED IN ANY PROCEEDING, BE IT CRIMINAL OR
CIVIL, ADMINISTRATIVE OR JUDICIAL, INVESTIGATORY OR ADJUDICATORY  ...
IT PROTECTS ANY DISCLOSURES WHICH THE WITNESS MAY REASONABLY APPREHEND
COULD BE USED IN A CRIMINAL PROSECUTION OR WHICH COULD LEAD TO OTHER
EVIDENCE THAT MIGHT BE SO USED."  (FN79)    WITH RESPECT TO JUVENILES,
BOTH COMMON OBSERVATION AND EXPERT OPINION EMPHASIZE THAT THE "DISTRUST
OF CONFESSIONS MADE IN CERTAIN SITUATIONS" TO WHICH DEAN WIGMORE
REFERRED IN THE PASSAGE QUOTED SUPRA, AT 44-45, IS IMPERATIVE IN THE
CASE OF CHILDREN FROM AN EARLY AGE THROUGH ADOLESCENCE.  IN NEW YORK,
FOR EXAMPLE, THE RECENTLY ENACTED FAMILY COURT ACT PROVIDES THAT THE
JUVENILE AND HIS PARENTS MUST BE ADVISED AT THE START OF THE HEARING OF
HIS RIGHT TO REMAIN SILENT.  (FN80)  THE NEW YORK STATUTE ALSO PROVIDES
THAT THE POLICE MUST ATTEMPT TO COMMUNICATE WITH THE JUVENILE'S PARENTS
BEFORE QUESTIONING HIM,  (FN81)  AND THAT ABSENT "SPECIAL
CIRCUMSTANCES" A CONFESSION MAY NOT BE OBTAINED FROM A CHILD PRIOR TO
NOTIFYING HIS PARENTS OR RELATIVES AND RELEASING THE CHILD EITHER TO
THEM OR TO THE FAMILY COURT.  (FN82)  IN IN THE MATTERS OF GREGORY W.
AND GERALD S., REFERRED TO ABOVE, THE NEW YORK COURT OF APPEALS HELD
THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION APPLIES IN JUVENILE
DELINQUENCY CASES AND REQUIRES THE EXCLUSION OF INVOLUNTARY
CONFESSIONS, AND THAT PEOPLE V. LEWIS, 260 N.Y. 171, 183 N.E. 353
(1932), HOLDING THE CONTRARY, HAD BEEN SPECIFICALLY OVERRULED BY
STATUTE. 

THE AUTHORITATIVE "STANDARDS FOR JUVENILE AND FAMILY COURTS"
CONCLUDES THAT "WHETHER OR NOT TRANSFER TO THE CRIMINAL COURT IS A
POSSIBILITY, CERTAIN PROCEDURES SHOULD ALWAYS BE FOLLOWED.  BEFORE
BEING INTERVIEWED BY THE POLICE, THE CHILD AND HIS PARENTS SHOULD BE
INFORMED OF HIS RIGHT TO HAVE LEGAL COUNSEL PRESENT AND TO REFUSE TO
ANSWER QUESTIONS OR BE FINGERPRINTED  (FN83) IF HE SHOULD SO DECIDE." 
(FN84) 

AGAINST THE APPLICATION TO JUVENILES OF THE RIGHT TO SILENCE, IT IS
ARGUED THAT JUVENILE PROCEEDINGS ARE "CIVIL" AND NOT "CRIMINAL," AND
THEREFORE THE PRIVILEGE SHOULD NOT APPLY.  IT IS TRUE THAT THE
STATEMENT OF THE PRIVILEGE IN THE FIFTH AMENDMENT, WHICH IS APPLICABLE
TO THE STATES BY REASON OF THE FOURTEENTH AMENDMENT, IS THAT NO PERSON
"SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF."  HOWEVER, IT IS ALSO CLEAR THAT THE AVAILABILITY OF THE
PRIVILEGE DOES NOT TURN UPON THE TYPE OF PROCEEDING IN WHICH ITS
PROTECTION IS INVOKED, BUT UPON THE NATURE OF THE STATEMENT OR
ADMISSION AND THE EXPOSURE WHICH IT INVITES.  THE PRIVILEGE MAY, FOR
EXAMPLE, BE CLAIMED IN A CIVIL OR ADMINISTRATIVE PROCEEDING, IF THE
STATEMENT IS OR MAY BE INCULPATORY.  (FN85) 

IT WOULD BE ENTIRELY UNREALISTIC TO CARVE OUT OF THE FIFTH AMENDMENT
ALL STATEMENTS BY JUVENILES ON THE GROUND THAT THESE CANNOT LEAD TO
"CRIMINAL" INVOLVEMENT.  IN THE FIRST PLACE, JUVENILE PROCEEDINGS TO
DETERMINE "DELINQUENCY," WHICH MAY LEAD TO COMMITMENT TO A STATE
INSTITUTION, MUST BE REGARDED AS "CRIMINAL" FOR PURPOSES OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  TO HOLD OTHERWISE WOULD BE TO
DISREGARD SUBSTANCE BECAUSE OF THE FEEBLE ENTICEMENT OF THE "CIVIL"
LABEL-OF-CONVENIENCE WHICH HAS BEEN ATTACHED TO JUVENILE PROCEEDINGS. 
INDEED, IN OVER HALF OF THE STATES, THERE IS NOT EVEN ASSURANCE THAT
THE JUVENILE WILL BE KEPT IN SEPARATE INSTITUTIONS, APART FROM ADULT
"CRIMINALS."  IN THOSE STATES JUVENILES MAY BE PLACED IN OR TRANSFERRED
TO ADULT PENAL INSTITUTIONS (FN86) AFTER HAVING BEEN FOUND "DELINQUENT"
BY A JUVENILE COURT.  FOR THIS PURPOSE, AT LEAST, COMMITMENT IS A
DEPRIVATION OF LIBERTY.  IT IS INCARCERATION AGAINST ONE'S WILL,
WHETHER IT IS CALLED "CRIMINAL" OR "CIVIL."  AND OUR CONSTITUTION
GUARANTEES THAT NO PERSON SHALL BE "COMPELLED" TO BE A WITNESS AGAINST
HIMSELF WHEN HE IS THREATENED WITH DEPRIVATION OF HIS LIBERTY - A
COMMAND WHICH THIS COURT HAS BROADLY APPLIED AND GENEROUSLY IMPLEMENTED
IN ACCORDANCE WITH THE TEACHING OF THE HISTORY OF THE PRIVILEGE AND ITS
GREAT OFFICE IN MANKIND'S BATTLE FOR FREEDOM.  (FN87) 

IN ADDITION, APART FROM THE EQUIVALENCE FOR THIS PURPOSE OF EXPOSURE
TO COMMITMENT AS A JUVENILE DELINQUENT AND EXPOSURE TO IMPRISONMENT AS
AN ADULT OFFENDER, THE FACT OF THE MATTER IS THAT THERE IS LITTLE OR NO
ASSURANCE IN ARIZONA, AS IN MOST IF NOT ALL OF THE STATES, THAT A
JUVENILE APPREHENDED AND INTERROGATED BY THE POLICE OR EVEN BY THE
JUVENILE COURT ITSELF WILL REMAIN OUTSIDE OF THE REACH OF ADULT COURTS
AS A CONSEQUENCE OF THE OFFENSE FOR WHICH HE HAS BEEN TAKEN INTO
CUSTODY.  IN ARIZONA, AS IN OTHER STATES, PROVISION IS MADE FOR
JUVENILE COURTS TO RELINQUISH OR WAIVE JURISDICTION TO THE ORDINARY
CRIMINAL COURTS.  (FN88)  IN THE PRESENT CASE, WHEN GERALD GAULT WAS
INTERROGATED CONCERNING VIOLATION OF A SECTION OF THE ARIZONA CRIMINAL
CODE, IT COULD NOT BE CERTAIN THAT THE JUVENILE COURT JUDGE WOULD
DECIDE TO "SUSPEND" CRIMINAL PROSECUTION IN COURT FOR ADULTS BY
PROCEEDING TO AN ADJUDICATION IN JUVENILE COURT.  (FN89) 

IT IS ALSO URGED, AS THE SUPREME COURT OF ARIZONA HERE ASSERTED, THAT
THE JUVENILE AND PRESUMABLY HIS PARENTS SHOULD NOT BE ADVISED OF THE
JUVENILE'S RIGHT TO SILENCE BECAUSE CONFESSION IS GOOD FOR THE CHILD AS
THE COMMENCEMENT OF THE ASSUMED THERAPY OF THE JUVENILE COURT PROCESS,
AND HE SHOULD BE ENCOURAGED TO ASSUME AN ATTITUDE OF TRUST AND
CONFIDENCE TOWARD THE OFFICIALS OF THE JUVENILE PROCESS.  THIS
PROPOSITION HAS BEEN SUBJECTED TO WIDESPREAD CHALLENGE ON THE BASIS OF
CURRENT REAPPRAISALS OF THE RHETORIC AND REALITIES OF THE HANDLING OF
JUVENILE OFFENDERS. 

IN FACT, EVIDENCE IS ACCUMULATING THAT CONFESSIONS BY JUVENILES DO
NOT AID IN "INDIVIDUALIZED TREATMENT," AS THE COURT BELOW PUT IT, AND
THAT COMPELLING THE CHILD TO ANSWER QUESTIONS, WITHOUT WARNING OR
ADVICE AS TO HIS RIGHT TO REMAIN SILENT, DOES NOT SERVE THIS OR ANY
OTHER GOOD PURPOSE.  IN LIGHT OF THE OBSERVATIONS OF WHEELER AND
COTTRELL,  (FN90)  AND OTHERS, IT SEEMS PROBABLE THAT WHERE CHILDREN
ARE INDUCED TO CONFESS BY "PATERNAL" URGINGS ON THE PART OF OFFICIALS
AND THE CONFESSION IS THEN FOLLOWED BY DISCIPLINARY ACTION, THE CHILD'S
REACTION IS LIKELY TO BE HOSTILE AND ADVERSE - THE CHILD MAY WELL FEEL
THAT HE HAS BEEN LED OR TRICKED INTO CONFESSION AND THAT DESPITE HIS
CONFESSION, HE IS BEING PUNISHED.  (FN91) 

FURTHER, AUTHORITATIVE OPINION HAS CAST FORMIDABLE DOUBT UPON THE
RELIABILITY AND TRUSTWORTHINESS OF "CONFESSIONS" BY CHILDREN.  THIS
COURT'S OBSERVATIONS IN HALEY V. OHIO ARE SET FORTH ABOVE.  THE RECENT
DECISION OF THE NEW YORK COURT OF APPEALS REFERRED TO ABOVE, IN THE
MATTERS OF GREGORY W. AND GERALD S., DEALS WITH A DRAMATIC AND, IT IS
TO BE HOPED, EXTREME EXAMPLE.  TWO 12-YEAR-OLD NEGRO BOYS WERE TAKEN
INTO CUSTODY FOR THE BRUTAL ASSAULT AND RAPE OF TWO AGED DOMESTICS, ONE
OF WHOM DIED AS THE RESULT OF THE ATTACK.  ONE OF THE BOYS WAS
SCHIZOPHRENIC AND HAD BEEN LOCKED IN THE SECURITY WARD OF A MENTAL
INSTITUTION AT THE TIME OF THE ATTACKS.  BY A PROCESS THAT MAY BEST BE
DESCRIBED AS BIZARRE, HIS CONFESSION WAS OBTAINED BY THE POLICE.  A
PSYCHIATRIST TESTIFIED THAT THE BOY WOULD ADMIT "WHATEVER HE THOUGHT
WAS EXPECTED SO THAT HE COULD GET OUT OF THE IMMEDIATE SITUATION."  THE
OTHER 12-YEAR-OLD ALSO "CONFESSED."  BOTH CONFESSIONS WERE IN SPECIFIC
DETAIL, ALBEIT THEY CONTAINED VARIOUS INCONSISTENCIES.  THE COURT OF
APPEALS, IN AN OPINION BY KEATING, J., CONCLUDED THAT THE CONFESSIONS
WERE PRODUCTS OF THE WILL OF THE POLICE INSTEAD OF THE BOYS.  THE
CONFESSIONS WERE THEREFORE HELD INVOLUNTARY AND THE ORDER OF THE
APPELLATE DIVISION AFFIRMING THE ORDER OF THE FAMILY COURT ADJUDGING
THE DEFENDANTS TO BE JUVENILE DELINQUENTS WAS REVERSED. 

A SIMILAR AND EQUALLY INSTRUCTIVE CASE HAS RECENTLY BEEN DECIDED BY
THE SUPREME COURT OF NEW JERSEY.  IN THE INTERESTS OF CARLO AND
STASILOWICZ, SUPRA.  THE BODY OF A 10-YEAR-OLD GIRL WAS FOUND.  SHE HAD
BEEN STRANGLED.  NEIGHBORHOOD BOYS WHO KNEW THE GIRL WERE QUESTIONED. 
THE TWO APPELLANTS, AGED 13 AND 15, CONFESSED TO THE POLICE, WITH VIVID
DETAIL AND SOME INCONSISTENCIES.  AT THE JUVENILE COURT HEARING, BOTH
DENIED ANY COMPLICITY IN THE KILLING.  THEY TESTIFIED THAT THEIR
CONFESSIONS WERE THE PRODUCT OF FEAR AND FATIGUE DUE TO EXTENSIVE
POLICE GRILLING.  THE JUVENILE COURT JUDGE FOUND THAT THE CONFESSIONS
WERE VOLUNTARY AND ADMISSIBLE.  ON APPEAL, IN AN EXTENSIVE OPINION BY
PROCTOR, J., THE SUPREME COURT OF NEW JERSEY REVERSED.  IT REJECTED THE
STATE'S ARGUMENT THAT THE CONSTITUTIONAL SAFEGUARD OF VOLUNTARINESS
GOVERNING THE USE OF CONFESSIONS DOES NOT APPLY IN PROCEEDINGS BEFORE
THE JUVENILE COURT.  IT POINTED OUT THAT UNDER NEW JERSEY COURT RULES,
JUVENILES UNDER THE AGE OF 16 ACCUSED OF COMMITTING A HOMICIDE ARE
TRIED IN A PROCEEDING WHICH "HAS ALL OF THE APPURTENANCES OF A CRIMINAL
TRIAL," INCLUDING PARTICIPATION BY THE COUNTY PROSECUTOR, AND
REQUIREMENTS THAT THE JUVENILE BE PROVIDED WITH COUNSEL, THAT A
STENOGRAPHIC RECORD BE MADE, ETC. IT ALSO POINTED OUT THAT UNDER NEW
JERSEY LAW, THE CONFINEMENT OF THE BOYS AFTER REACHING AGE 21 COULD BE
EXTENDED UNTIL THEY HAD SERVED THE MAXIMUM SENTENCE WHICH COULD HAVE
BEEN IMPOSED ON AN ADULT FOR SUCH A HOMICIDE, HERE FOUND TO BE SECOND
DEGREE MURDER CARRYING UP TO 30 YEARS' IMPRISONMENT.  (FN92)  THE COURT
CONCLUDED THAT THE CONFESSIONS WERE INVOLUNTARY, STRESSING THAT THE
BOYS, CONTRARY TO STATUTE, WERE PLACED IN THE POLICE STATION AND THERE
INTERROGATED; (FN93)  THAT THE PARENTS OF BOTH BOYS WERE NOT ALLOWED TO
SEE THEM WHILE THEY WERE BEING INTERROGATED; (FN94) THAT
INCONSISTENCIES APPEARED AMONG THE VARIOUS STATEMENTS OF THE BOYS AND
WITH THE OBJECTIVE EVIDENCE OF THE CRIME; AND THAT THERE WERE
PROTRACTED PERIODS OF QUESTIONING.  THE COURT NOTED THE STATE'S
CONTENTION THAT BOTH BOYS WERE ADVISED OF THEIR CONSTITUTIONAL RIGHTS
BEFORE THEY MADE THEIR STATEMENTS, BUT IT HELD THAT THIS SHOULD NOT BE
GIVEN "SIGNIFICANT WEIGHT IN OUR DETERMINATION OF VOLUNTARINESS." 
(FN95)  ACCORDINGLY, THE JUDGMENT OF THE JUVENILE COURT WAS REVERSED. 

IN A RECENT CASE BEFORE THE JUVENILE COURT OF THE DISTRICT OF
COLUMBIA, JUDGE KETCHAM REJECTED THE PROFFER OF EVIDENCE AS TO ORAL
STATEMENTS MADE AT POLICE HEADQUARTERS BY FOUR JUVENILES WHO HAD BEEN
TAKEN INTO CUSTODY FOR ALLEGED INVOLVEMENT IN AN ASSAULT AND ATTEMPTED
ROBBERY.  IN THE MATTER OF FOUR YOUTHS, NOS. 28-776-J, 28-778-J, 28-783
J, 28-859-J, JUVENILE COURT OF THE DISTRICT OF COLUMBIA, APRIL 7,
1961.  THE COURT EXPLICITLY STATED THAT IT DID NOT REST ITS DECISION ON
A SHOWING THAT THE STATEMENTS WERE INVOLUNTARY, BUT BECAUSE THEY WERE
UNTRUSTWORTHY.  JUDGE KETCHAM SAID: 

"SIMPLY STATED, THE COURT'S DECISION IN THIS CASE RESTS UPON THE
CONSIDERED OPINION - AFTER NEARLY FOUR BUSY YEARS ON THE JUVENILE COURT
BENCH DURING WHICH THE TESTIMONY OF THOUSANDS OF SUCH JUVENILES HAS
BEEN HEARD - THAT THE STATEMENTS OF ADOLESCENTS UNDER 18 YEARS OF AGE
WHO ARE ARRESTED AND CHARGED WITH VIOLATIONS OF LAW ARE FREQUENTLY
UNTRUSTWORTHY AND OFTEN DISTORT THE TRUTH." 

WE CONCLUDE THAT THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION IS APPLICABLE IN THE CASE OF JUVENILES AS IT IS WITH
RESPECT TO ADULTS.  WE APPRECIATE THAT SPECIAL PROBLEMS MAY ARISE WITH
RESPECT TO WAIVER OF THE PRIVILEGE BY OR ON BEHALF OF CHILDREN, AND
THAT THERE MAY WELL BE SOME DIFFERENCES IN TECHNIQUE - BUT NOT IN
PRINCIPLE - DEPENDING UPON THE AGE OF THE CHILD AND THE PRESENCE AND
COMPETENCE OF PARENTS.  THE PARTICIPATION OF COUNSEL WILL, OF COURSE,
ASSIST THE POLICE, JUVENILE COURTS AND APPELLATE TRIBUNALS IN
ADMINISTERING THE PRIVILEGE.  IF COUNSEL WAS NOT PRESENT FOR SOME
PERMISSIBLE REASON WHEN AN ADMISSION WAS OBTAINED, THE GREATEST CARE
MUST BE TAKEN TO ASSURE THAT THE ADMISSION WAS VOLUNTARY, IN THE SENSE
NOT ONLY THAT IT WAS NOT COERCED OR SUGGESTED, BUT ALSO THAT IT WAS NOT
THE PRODUCT OF IGNORANCE OF RIGHTS OR OF ADOLESCENT FANTASY, FRIGHT OR
DESPAIR.  (FN96) 

THE "CONFESSION" OF GERALD GAULT WAS FIRST OBTAINED BY OFFICER FLAGG,
OUT OF THE PRESENCE OF GERALD'S PARENTS, WITHOUT COUNSEL AND WITHOUT
ADVISING HIM OF HIS RIGHT TO SILENCE, AS FAR AS APPEARS.  THE JUDGMENT
OF THE JUVENILE COURT WAS STATED BY THE JUDGE TO BE BASED ON GERALD'S
ADMISSIONS IN COURT.  NEITHER "ADMISSION" WAS REDUCED TO WRITING, AND,
TO SAY THE LEAST, THE PROCESS BY WHICH THE "ADMISSIONS" WERE OBTAINED
AND RECEIVED MUST BE CHARACTERIZED AS LACKING THE CERTAINTY AND ORDER
WHICH ARE REQUIRED OF PROCEEDINGS OF SUCH FORMIDABLE CONSEQUENCES. 
(FN97)  APART FROM THE "ADMISSIONS," THERE WAS NOTHING UPON WHICH A
JUDGMENT OR FINDING MIGHT BE BASED.  THERE WAS NO SWORN TESTIMONY. 
MRS. COOK, THE COMPLAINANT, WAS NOT PRESENT.  THE ARIZONA SUPREME COURT
HELD THAT "SWORN TESTIMONY MUST BE REQUIRED OF ALL WITNESSES INCLUDING
POLICE OFFICERS, PROBATION OFFICERS AND OTHERS WHO ARE PART OF OR
OFFICIALLY RELATED TO THE JUVENILE COURT STRUCTURE."  WE HOLD THAT THIS
IS NOT ENOUGH.  NO REASON IS SUGGESTED OR APPEARS FOR A DIFFERENT RULE
IN RESPECT OF SWORN TESTIMONY IN JUVENILE COURTS THAN IN ADULT
TRIBUNALS.  ABSENT A VALID CONFESSION ADEQUATE TO SUPPORT THE
DETERMINATION OF THE JUVENILE COURT, CONFRONTATION AND SWORN TESTIMONY
BY WITNESSES AVAILABLE FOR CROSS-EXAMINATION WERE ESSENTIAL FOR A
FINDING OF "DELINQUENCY" AND AN ORDER COMMITTING GERALD TO A STATE
INSTITUTION FOR A MAXIMUM OF SIX YEARS. 

THE RECOMMENDATIONS IN THE CHILDREN'S BUREAU'S "STANDARDS FOR
JUVENILE AND FAMILY COURTS" ARE IN GENERAL ACCORD WITH OUR
CONCLUSIONS.  THEY STATE THAT TESTIMONY SHOULD BE UNDER OATH AND THAT
ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE UNDER RULES APPLICABLE
TO CIVIL CASES SHOULD BE ADMITTED IN EVIDENCE.  (FN98)  THE NEW YORK
FAMILY COURT ACT CONTAINS A SIMILAR PROVISION.  (FN99) 

AS WE SAID IN KENT V. UNITED STATES, 383 U.S. 541, 554 (1966), WITH
RESPECT TO WAIVER PROCEEDINGS, "THERE IS NO PLACE IN OUR SYSTEM OF LAW
FOR REACHING A RESULT OF SUCH TREMENDOUS CONSEQUENCES WITHOUT CEREMONY
...  ."  WE NOW HOLD THAT, ABSENT A VALID CONFESSION, A DETERMINATION
OF DELINQUENCY AND AN ORDER OF COMMITMENT TO A STATE INSTITUTION CANNOT
BE SUSTAINED IN THE ABSENCE OF SWORN TESTIMONY SUBJECTED TO THE
OPPORTUNITY FOR CROSS-EXAMINATION IN ACCORDANCE WITH OUR LAW AND
CONSTITUTIONAL REQUIREMENTS.                                       VI.

APPELLATE REVIEW AND TRANSCRIPT OF

  PROCEEDINGS. 

APPELLANTS URGE THAT THE ARIZONA STATUTE IS UNCONSTITUTIONAL UNDER
THE DUE PROCESS CLAUSE BECAUSE, AS CONSTRUED BY ITS SUPREME COURT,
"THERE IS NO RIGHT OF APPEAL FROM A JUVENILE COURT ORDER  ...  ."   THE
COURT HELD THAT THERE IS NO RIGHT TO A TRANSCRIPT BECAUSE THERE IS NO
RIGHT TO APPEAL AND BECAUSE THE PROCEEDINGS ARE CONFIDENTIAL AND ANY
RECORD MUST BE DESTROYED AFTER A PRESCRIBED PERIOD OF TIME.  (FN100)
WHETHER A TRANSCRIPT OR OTHER RECORDING IS MADE, IT HELD, IS A MATTER
FOR THE DISCRETION OF THE JUVENILE COURT. 

THIS COURT HAS NOT HELD THAT A STATE IS REQUIRED BY THE FEDERAL
CONSTITUTION "TO PROVIDE APPELLATE COURTS OR A RIGHT TO APPELLATE
REVIEW AT ALL."  (FN101)  IN VIEW OF THE FACT THAT WE MUST REVERSE THE
SUPREME COURT OF ARIZONA'S AFFIRMANCE OF THE DISMISSAL OF THE WRIT OF
HABEAS CORPUS FOR OTHER REASONS, WE NEED NOT RULE ON THIS QUESTION IN
THE PRESENT CASE OR UPON THE FAILURE TO PROVIDE A TRANSCRIPT OR
RECORDING OF THE HEARINGS - OR, INDEED, THE FAILURE OF THE JUVENILE
JUDGE TO STATE THE GROUNDS FOR HIS CONCLUSION.  CF. KENT V. UNITED
STATES, SUPRA, AT 561, WHERE WE SAID, IN THE CONTEXT OF A DECISION OF
THE JUVENILE COURT WAIVING JURISDICTION TO THE ADULT COURT, WHICH BY
LOCAL LAW, WAS PERMISSIBLE: "  ...  IT IS INCUMBENT UPON THE JUVENILE
COURT TO ACCOMPANY ITS WAIVER ORDER WITH A STATEMENT OF THE REASONS OR
CONSIDERATIONS THEREFOR."  AS THE PRESENT CASE ILLUSTRATES, THE
CONSEQUENCES OF FAILURE TO PROVIDE AN APPEAL, TO RECORD THE
PROCEEDINGS, OR TO MAKE FINDINGS OR STATE THE GROUNDS FOR THE JUVENILE
COURT'S CONCLUSION MAY BE TO THROW A BURDEN UPON THE MACHINERY FOR
HABEAS CORPUS, TO SADDLE THE REVIEWING PROCESS WITH THE BURDEN OF
ATTEMPTING TO RECONSTRUCT A RECORD, AND TO IMPOSE UPON THE JUVENILE
JUDGE THE UNSEEMLY DUTY OF TESTIFYING UNDER CROSS-EXAMINATION AS TO THE
EVENTS THAT TRANSPIRED IN THE HEARINGS BEFORE HIM.  (FN102)  FOR THE
REASONS STATED, THE JUDGMENT OF THE SUPREME COURT OF ARIZONA IS
REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  UNDER ARIZONA LAW, JUVENILE HEARINGS ARE CONDUCTED BY A JUDGE OF
THE SUPERIOR COURT, DESIGNATED BY HIS COLLEAGUES ON THE SUPERIOR COURT
TO SERVE AS JUVENILE COURT JUDGE.  ARIZONA CONST., ART. 6, SEC 15;
ARIZONA REVISED STATUTES (HEREINAFTER ARS) SECS 8-201, 8-202. 

FN2  THERE IS A CONFLICT BETWEEN THE RECOLLECTION OF MRS. GAULT AND
THAT OF OFFICER FLAGG.  MRS. GAULT TESTIFIED THAT GERALD WAS RELEASED
ON FRIDAY, JUNE 12, OFFICER FLAGG THAT IT HAD BEEN ON THURSDAY, JUNE
11.  THIS WAS FROM MEMORY; HE HAD NO RECORD, AND THE NOTE HEREAFTER
REFERRED TO WAS UNDATED. 

FN3  OFFICER FLAGG ALSO TESTIFIED THAT GERALD HAD NOT, WHEN
QUESTIONED AT THE DETENTION HOME, ADMITTED HAVING MADE ANY OF THE LEWD
STATEMENTS, BUT THAT EACH BOY HAD SOUGHT TO PUT THE BLAME ON THE
OTHER.  THERE WAS CONFLICTING TESTIMONY AS TO WHETHER RONALD HAD
ACCUSED GERALD OF MAKING THE LEWD STATEMENTS DURING THE JUNE 15
HEARING. 

FN4  JUDGE MCGHEE ALSO TESTIFIED THAT GERALD HAD NOT DENIED "CERTAIN
STATEMENTS" MADE TO HIM AT THE HEARING BY OFFICER HENDERSON. 

FN5  "Q.  ALL RIGHT.  NOW, JUDGE, WOULD YOU TELL ME UNDER WHAT
FOUND THE BOY DELINQUENT? 

"A.  WELL, THERE IS A - I THINK IT AMOUNTS TO DISTURBING THE PEACE. 
I CAN'T GIVE YOU THE SECTION, BUT I CAN TELL YOU THE LAW, THAT WHEN ONE
PERSON USES LEWD LANGUAGE IN THE PRESENCE OF ANOTHER PERSON, THAT IT
CAN AMOUNT TO - AND I CONSIDER THAT WHEN A PERSON MAKES IT OVER THE
PHONE, THAT IT IS CONSIDERED IN THE PRESENCE, I MIGHT BE WRONG, THAT IS
ONE SECTION.  THE OTHER SECTION UPON WHICH I CONSIDER THE BOY
DELINQUENT IS SECTION 8-201, SUBSECTION (D), HABITUALLY INVOLVED IN
IMMORAL MATTERS." 

FN6  ARS SEC 8-201-6, THE SECTION OF THE ARIZONA JUVENILE CODE WHICH
DEFINES A DELINQUENT CHILD, READS: 

"'DELINQUENT CHILD' INCLUDES: 

"(A)  A CHILD WHO HAS VIOLATED A LAW OF THE STATE OR AN ORDINANCE OR
REGULATION OF A POLITICAL SUBDIVISION THEREOF. 

"(B)  A CHILD WHO, BY REASON OF BEING INCORRIGIBLE, WAYWARD OR
HABITUALLY DISOBEDIENT, IS UNCONTROLLED BY HIS PARENT, GUARDIAN OR
CUSTODIAN. 

"(C)  A CHILD WHO IS HABITUALLY TRUANT FROM SCHOOL OR HOME. 

"(D)  A CHILD WHO HABITUALLY SO DEPORTS HIMSELF AS TO INJURE OR
ENDANGER THE MORALS OR HEALTH OF HIMSELF OR OTHERS." 

FN7  FOR EXAMPLE, THE LAWS OF ARIZONA ALLOW ARREST FOR A MISDEMEANOR
ONLY IF A WARRANT IS OBTAINED OR IF IT IS COMMITTED IN THE PRESENCE OF
THE OFFICER.  ARS SEC 13-1403.  THE SUPREME COURT OF ARIZONA HELD THAT
THIS IS INAPPLICABLE IN THE CASE OF JUVENILES.  SEE ARS SEC 8-221 WHICH
RELATES SPECIFICALLY TO JUVENILES.  BUT COMPARE TWO BROTHERS AND A CASE
OF LIQUOR, JUV.  CT. D.C., NOS. 66-2652-J, 66-2653-J, DECEMBER 28, 1966
(OPINION OF JUDGE KETCHAM); STANDARDS FOR JUVENILE AND FAMILY COURTS,
CHILDREN'S BUREAU PUB. NO. 437-1966, P. 47 (HEREINAFTER CITED AS
STANDARDS); NEW YORK FAMILY COURT ACT SEC 721 (1963)(HEREINAFTER CITED
AS N.Y. FAMILY COURT ACT). 

THE COURT ALSO HELD THAT THE JUDGE MAY CONSIDER HEARSAY IF IT IS "OF
A KIND ON WHICH REASONABLE MEN ARE ACCUSTOMED TO RELY IN SERIOUS
AFFAIRS."  BUT COMPARE NOTE, JUVENILE DELINQUENTS:  THE POLICE, STATE
COURTS, AND INDIVIDUALIZED JUSTICE, 79 HARV. L. REV.  775, 794-795
(1966)(HEREINAFTER CITED AS HARVARD LAW REVIEW NOTE): 

"THE INFORMALITY OF JUVENILE COURT HEARINGS FREQUENTLY LEADS TO THE
ADMISSION OF HEARSAY AND UNSWORN TESTIMONY.  IT IS SAID THAT 'CLOSE
ADHERENCE TO THE STRICT RULES OF EVIDENCE MIGHT PREVENT THE COURT FROM
OBTAINING IMPORTANT FACTS AS TO THE CHILD'S CHARACTER AND CONDITION
WHICH COULD ONLY BE TO THE CHILD'S DETRIMENT.'  THE ASSUMPTION IS THAT
THE JUDGE WILL GIVE NORMALLY INADMISSIBLE EVIDENCE ONLY ITS PROPER
WEIGHT.  IT IS ALSO DECLARED IN SUPPORT OF THESE EVIDENTIARY PRACTICES
THAT THE JUVENILE COURT IS NOT A CRIMINAL COURT, THAT THE IMPORTANCE OF
THE HEARSAY RULE HAS BEEN OVERESTIMATED, AND THAT ALLOWING AN ATTORNEY
TO MAKE 'TECHNICAL OBJECTIONS' WOULD DISRUPT THE DESIRED INFORMALITY OF
THE PROCEEDINGS.  BUT TO THE EXTENT THAT THE RULES OF EVIDENCE ARE NOT
MERELY TECHNICAL OR HISTORICAL, BUT LIKE THE HEARSAY RULE HAVE A SOUND
BASIS IN HUMAN EXPERIENCE, THEY SHOULD NOT BE REJECTED IN ANY JUDICIAL
INQUIRY.  JUVENILE COURT JUDGES IN LOS ANGELES, TUCSON, AND WISCONSIN
RAPIDS, WISCONSIN REPORT THAT THEY ARE SATISFIED WITH THE OPERATION OF
THEIR COURTS DESPITE APPLICATION OF UNRELAXED RULES OF EVIDENCE." 

IT RULED THAT THE CORRECT BURDEN OF PROOF IS THAT "THE JUVENILE JUDGE
MUST BE PERSUADED BY CLEAR AND CONVINCING EVIDENCE THAT THE INFANT HAS
COMMITTED THE ALLEGED DELINQUENT ACT."  COMPARE THE "PREPONDERANCE OF
THE EVIDENCE" TEST, N.Y. FAMILY COURT ACT SEC 744 (WHERE MAXIMUM
COMMITMENT IS THREE YEARS, SECS 753, 758).  CF. HARVARD LAW REVIEW
NOTE, P. 795. 

FN8  SEE, E.G., IN THE MATTERS OF GREGORY W. AND GERALD S., 19 N.Y.2D
55, 224 N.E.2D 102 (1966); IN THE INTERESTS OF CARLO AND STASILOWICZ,
48 N.J. 224, 225 A.2D 110 (1966); PEOPLE V. DOTSON, 46 CAL. 2D 891, 299
P.2D 875 (1956); PEE V. UNITED STATES, 107 U.S. APP. D.C. 47, 274 F.2D
556 (1959); WISSENGURG V. BRADLEY, 209 IOWA 813, 229 N.W. 205 (1930);
BRYANT V. BROWN, 151 MISS.  398, 118 SO. 184 (1928); DENDY V. WILSON,
142 TEX. 460, 179 S.W.2D 269 (1944); APPLICATION OF JOHNSON, 178 F.
SUPP. 155 (D.C.N.J.  1957). 

FN9  383 U.S., AT 553. 

FN10  332 U.S., AT 601 (OPINION FOR FOUR JUSTICES). 

FN11  SEE REPORT BY THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, "THE CHALLENGE OF CRIME IN A FREE SOCIETY"
(1967)(HEREINAFTER CITED AS NAT'L CRIME COMM'N REPORT), PP. 81, 85-86;
STANDARDS, P. 71; GARDNER, THE KENT CASE AND THE JUVENILE COURT:  A
CHALLENGE TO LAWYERS, 52 A.B.A.J. 923 (1966); PAULSEN, FAIRNESS TO THE
JUVENILE OFFENDER, 41 MINN. L. REV. 547 (1957); KETCHAM, THE LEGAL
RENAISSANCE IN THE JUVENILE COURT, 60 NW. U.L. REV. 585 (1965); ALLEN,
THE BORDERLAND OF CRIMINAL JUSTICE (1964), PP. 19-23; HARVARD LAW
REVIEW NOTE, P. 791; NOTE, RIGHTS AND REHABILITATION IN THE JUVENILE
COURTS, 67 COL. L. REV. 281 (1967); COMMENT, CRIMINAL OFFENDERS IN THE
JUVENILE COURT: MORE BRICKBATS AND ANOTHER PROPOSAL, 114 U. PA. L. REV.
1171 (1966). 

FN12  SEE KENT V. UNITED STATES, 383 U.S. 541, 555 AND N. 22 (1966). 

FN13  SEE N. 7, SUPRA. 

FN14  SEE NATIONAL COUNCIL OF JUVENILE COURT JUDGES, DIRECTORY AND
MANUAL (1964), P. 1.  THE NUMBER OF JUVENILE JUDGES AS OF 1964 IS
LISTED AS 2,987, OF WHOM 213 ARE FULL-TIME JUVENILE COURT JUDGES.  ID.,
AT 305.  THE NAT'L CRIME COMM'N REPORT INDICATES THAT HALF OF THESE
JUDGES HAVE NO UNDERGRADUATE DEGREE, A FIFTH HAVE NO COLLEGE EDUCATION
AT ALL, A FIFTH ARE NOT MEMBERS OF THE BAR, AND THREE-QUARTERS DEVOTE
LESS THAN ONE-QUARTER OF THEIR TIME TO JUVENILE MATTERS.  SEE ALSO
MCCUNE, PROFILE OF THE NATION'S JUVENILE COURT JUDGES (MONOGRAPH,
GEORGE WASHINGTON UNIVERSITY, CENTER FOR THE BEHAVIORAL SCIENCES,
1965), WHICH IS A DETAILED STATISTICAL STUDY OF JUVENILE COURT JUDGES,
AND INDICATES ADDITIONALLY THAT ABOUT A QUARTER OF THESE JUDGES HAVE NO
LAW SCHOOL TRAINING AT ALL.  ABOUT ONE-THIRD OF ALL JUDGES HAVE NO
PROBATION AND SOCIAL WORK STAFF AVAILABLE TO THEM; BETWEEN EIGHTY AND
NINETY PERCENT HAVE NO AVAILABLE PSYCHOLOGIST OR PSYCHIATRIST.  IBID.
IT HAS BEEN OBSERVED THAT WHILE "GOOD WILL, COMPASSION, AND SIMILAR
VIRTUES ARE  ...  ADMIRABLY PREVALENT THROUGHOUT THE SYSTEM  ...
EXPERTISE, THE KEYSTONE OF THE WHOLE VENTURE, IS LACKING."  HARVARD LAW
REVIEW NOTE, P. 809.  IN 1965, OVER 697,000 DELINQUENCY CASES
(EXCLUDING TRAFFIC) WERE DISPOSED OF IN THESE COURTS, INVOLVING SOME
601,000 CHILDREN, OR 2% OF ALL CHILDREN BETWEEN 10 AND 17.  JUVENILE
COURT STATISTICS - 1965, CHILDREN'S BUREAU STATISTICAL SERIES NO. 85
(1966), P. 2. 

FN15  SEE PAULSEN, KENT V. UNITED STATES:  THE CONSTITUTIONAL CONTEXT
OF JUVENILE CASES, 1966 SUP. CT. REVIEW 167, 174. 

FN16  JULIAN MACK, THE JUVENILE COURT, 23 HARV. L. REV. 104, 119-120
(1909). 

FN17  ID., AT 120. 

FN18  ID., AT 109; PAULSEN, OP. CIT. SUPRA, N. 15, AT 173-174.  THERE
SEEMS TO HAVE BEEN LITTLE EARLY CONSTITUTIONAL OBJECTION TO THE SPECIAL
PROCEDURES OF JUVENILE COURTS.  BUT SEE WAITE, HOW FAR CAN COURT
PROCEDURE BE SOCIALIZED WITHOUT IMPAIRING INDIVIDUAL RIGHTS, 12 J.
CRIM. L. & CRIMINOLOGY 339, 340 (1922):  "THE COURT WHICH MUST DIRECT
ITS PROCEDURE EVEN APPARENTLY TO DO SOMETHING TO A CHILD BECAUSE OF
WHAT HE HAS DONE, IS PARTED FROM THE COURT WHICH IS AVOWEDLY CONCERNED
ONLY WITH DOING SOMETHING FOR A CHILD BECAUSE OF WHAT HE IS AND NEEDS,
BY A GULF TOO WIDE TO BE BRIDGED BY ANY HUMANITY WHICH THE JUDGE MAY
INTRODUCE INTO HIS HEARINGS, OR BY THE HABITUAL USE OF CORRECTIVE
RATHER THAN PUNITIVE METHODS AFTER CONVICTION." 

FN19  PAULSEN, OP. CIT. SUPRA, N. 15, AT 173; HURLEY, ORIGIN OF THE
ILLINOIS JUVENILE COURT LAW, IN THE CHILD, THE CLINIC, AND THE COURT
(1925), PP. 320, 328. 

FN20  JULIAN MACK, THE CHANCERY PROCEDURE IN THE JUVENILE COURT, IN
THE CHILD, THE CLINIC, AND THE COURT (1925), P. 310. 

FN21  SEE, E.G., SHEARS, LEGAL PROBLEMS PECULIAR TO CHILDREN'S
COURTS, 48 A.B.A.J.  719, 720 (1962)("THE BASIC RIGHT OF A JUVENILE IS
NOT TO LIBERTY BUT TO CUSTODY.  HE HAS THE RIGHT TO HAVE SOMEONE TAKE
CARE OF HIM, AND IF HIS PARENTS DO NOT AFFORD HIM THIS CUSTODIAL
PRIVILEGE, THE LAW MUST DO SO."); EX PARTE CROUSE, 4 WHART.  9, 11
(SUP.  CT. PA. 1839); PETITION OF FERRIER, 103 ILL. 367, 371-373
(1882). 

FN22  THE APPENDIX TO THE OPINION OF JUDGE PRETTYMAN IN PEE V. UNITED
STATES, 107 U.S. APP. D.C. 47, 274 F.2D 556 (1959), LISTS AUTHORITY IN
51 JURISDICTIONS TO THIS EFFECT.  EVEN RULES REQUIRED BY DUE PROCESS IN
CIVIL PROCEEDINGS, HOWEVER, HAVE NOT GENERALLY BEEN DEEMED COMPULSORY
AS TO PROCEEDINGS AFFECTING JUVENILES.  FOR EXAMPLE, CONSTITUTIONAL
REQUIREMENTS AS TO NOTICE OF ISSUES, WHICH WOULD COMMONLY APPLY IN
CIVIL CASES, ARE COMMONLY DISREGARDED IN JUVENILE PROCEEDINGS, AS THIS
CASE ILLUSTRATES. 

FN23  "THERE IS EVIDENCE  ...  THAT THERE MAY BE GROUNDS FOR CONCERN
THAT THE CHILD RECEIVES THE WORST OF BOTH WORLDS:  THAT HE GETS NEITHER
THE PROTECTIONS ACCORDED TO ADULTS NOR THE SOLICITOUS CARE AND
REGENERATIVE TREATMENT POSTULATED FOR CHILDREN."  383 U.S., AT 556,
CITING HANDLER, THE JUVENILE COURT AND THE ADVERSARY SYSTEM:  PROBLEMS
OF FUNCTION AND FORM, 1965 WIS. L. REV. 7; HARVARD LAW REVIEW NOTE; AND
VARIOUS CONGRESSIONAL MATERIALS SET FORTH IN 383 U.S., AT 546, N. 5. 

ON THE OTHER HAND, WHILE THIS OPINION AND MUCH RECENT WRITING
CONCENTRATE UPON THE FAILURES OF THE JUVENILE COURT SYSTEM TO LIVE UP
TO THE EXPECTATIONS OF ITS FOUNDERS, THE OBSERVATION OF THE NAT'L CRIME
COMM'N REPORT SHOULD BE KEPT IN MIND: 

"ALTHOUGH ITS SHORTCOMINGS ARE MANY AND ITS RESULTS TOO OFTEN
DISAPPOINTING, THE JUVENILE JUSTICE SYSTEM IN MANY CITIES IS OPERATED
BY PEOPLE WHO ARE BETTER EDUCATED AND MORE HIGHLY SKILLED, CAN CALL ON
MORE AND BETTER FACILITIES AND SERVICES, AND HAS MORE ANCILLARY
AGENCIES TO WHICH TO REFER ITS CLIENTELE THAN ITS ADULT COUNTERPART." 
ID., AT 78. 

FN24  FOREWORD TO YOUNG, SOCIAL TREATMENT IN PROBATION AND
DELINQUENCY (1937), P. XXVII.  THE 1965 REPORT OF THE UNITED STATES
COMMISSION ON CIVIL RIGHTS, "LAW ENFORCEMENT - A REPORT ON EQUAL
PROTECTION IN THE SOUTH," PP. 80-83, DOCUMENTS NUMEROUS INSTANCES IN
WHICH "LOCAL AUTHORITIES USED THE BROAD DISCRETION AFFORDED THEM BY THE
ABSENCE OF SAFEGUARDS IN THE JUVENILE PROCESS" TO PUNISH, INTIMIDATE,
AND OBSTRUCT YOUTHFUL PARTICIPANTS IN CIVIL RIGHTS DEMONSTRATIONS.  SEE
ALSO PAULSEN, JUVENILE COURTS, FAMILY COURTS, AND THE POOR MAN, 54
CALIF. L. REV. 694, 707-709 (1966).    FN25  LEHMAN, A JUVENILE'S RIGHT
TO COUNSEL IN A DELINQUENCY HEARING, 17 JUVENILE COURT JUDGES JOURNAL
53, 54 (1966). 

COMPARE THE OBSERVATION OF THE LATE ARTHUR T. VANDERBILT, CHIEF
JUSTICE OF THE SUPREME COURT OF NEW JERSEY, IN A FOREWORD TO VIRTUE,
BASIC STRUCTURE FOR CHILDREN'S SERVICES IN MICHIGAN (1953), P. X: 

"IN THEIR ZEAL TO CARE FOR CHILDREN NEITHER JUVENILE JUDGES NOR
WELFARE WORKERS CAN BE PERMITTED TO VIOLATE THE CONSTITUTION,
ESPECIALLY THE CONSTITUTIONAL PROVISIONS AS TO DUE PROCESS THAT ARE
INVOLVED IN MOVING A CHILD FROM ITS HOME.  THE INDISPENSABLE ELEMENTS
OF DUE PROCESS ARE:  FIRST, A TRIBUNAL WITH JURISDICTION; SECOND,
NOTICE OF A HEARING TO THE PROPER PARTIES; AND FINALLY, A FAIR
HEARING.  ALL THREE MUST BE PRESENT IF WE ARE TO TREAT THE CHILD AS AN
INDIVIDUAL HUMAN BEING AND NOT TO REVERT, IN SPITE OF GOOD INTENTIONS,
TO THE MORE PRIMITIVE DAYS WHEN HE WAS TREATED AS A CHATTEL." 

WE ARE WARNED THAT THE SYSTEM MUST NOT "DEGENERATE INTO A STAR
CHAMBER PROCEEDING WITH THE JUDGE IMPOSING HIS OWN PARTICULAR BRAND OF
CULTURE AND MORALS ON INDIGENT PEOPLE  ...  ."  JUDGE MARION G.
WOODWARD, LETTER REPRODUCED IN 18 SOCIAL SERVICE REVIEW 366, 368
(1944).  DOCTOR BOVET, THE SWISS PSYCHIATRIST, IN HIS MONOGRAPH FOR THE
WORLD HEALTH ORGANIZATION, PSYCHIATRIC ASPECTS OF JUVENILE DELINQUENCY
(1951), P. 79, STATED THAT:  "ONE OF THE MOST DEFINITE CONCLUSIONS OF
THIS INVESTIGATION IS THAT FEW FIELDS EXIST IN WHICH MORE SERIOUS
COERCIVE MEASURES ARE APPLIED, ON SUCH FLIMSY OBJECTIVE EVIDENCE, THAN
IN THAT OF JUVENILE DELINQUENCY."  WE ARE TOLD THAT "THE JUDGE AS
AMATEUR PSYCHOLOGIST, EXPERIMENTING UPON THE UNFORTUNATE CHILDREN WHO
MUST APPEAR BEFORE HIM, IS NEITHER AN ATTRACTIVE NOR A CONVINCING
FIGURE."  HARVARD LAW REVIEW NOTE, AT 808. 

FN26  THE IMPACT OF DENYING FUNDAMENTAL PROCEDURAL DUE PROCESS TO
JUVENILES INVOLVED IN "DELINQUENCY" CHARGES IS DRAMATIZED BY THE
FOLLOWING CONSIDERATIONS:  (1) IN 1965, PERSONS UNDER 18 ACCOUNTED FOR
ABOUT ONE-FIFTH OF ALL ARRESTS FOR SERIOUS CRIMES (NAT'L CRIME COMM'N
REPORT, P. 55) AND OVER HALF OF ALL ARRESTS FOR SERIOUS PROPERTY
OFFENSES (ID., AT 56), AND IN THE SAME YEAR SOME 601,000 CHILDREN UNDER
18, OR 2% OF ALL CHILDREN BETWEEN 10 AND 17, CAME BEFORE JUVENILE
COURTS (JUVENILE COURT STATISTICS - 1965, CHILDREN'S BUREAU STATISTICAL
SERIES NO. 85 (1966) P. 2).  ABOUT ONE OUT OF NINE YOUTHS WILL BE
REFERRED TO JUVENILE COURT IN CONNECTION WITH A DELINQUENT ACT
(EXCLUDING TRAFFIC OFFENSES) BEFORE HE IS 18 (NAT'L CRIME COMM'N
REPORT, P. 55).  CF. ALSO WHEELER & COTTRELL, JUVENILE DELINQUENCY -
ITS PREVENTION AND CONTROL (RUSSELL SAGE FOUNDATION, 1965), P. 2;
REPORT OF THE PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT OF
COLUMBIA (1966)(HEREINAFTER CITED AS D.C. CRIME COMM'N REPORT), P.
773.  FURTHERMORE, MOST JUVENILE CRIME APPARENTLY GOES UNDETECTED OR
NOT FORMALLY PUNISHED.  WHEELER & COTTRELL, SUPRA, OBSERVE THAT "ALMOST
ALL YOUNGSTERS HAVE COMMITTED AT LEAST ONE OF THE PETTY FORMS OF THEFT
AND VANDALISM IN THE COURSE OF THEIR ADOLESCENCE."  ID., AT 28-29.  SEE
ALSO NAT'L CRIME COMM'N REPORT, P. 55, WHERE IT IS STATED THAT "SELF
REPORT STUDIES REVEAL THAT PERHAPS 90 PERCENT OF ALL YOUNG PEOPLE HAVE
COMMITTED AT LEAST ONE ACT FOR WHICH THEY COULD HAVE BEEN BROUGHT TO
JUVENILE COURT."  IT SEEMS THAT THE RATE OF JUVENILE DELINQUENCY IS
ALSO STEADILY RISING.  SEE NAT'L CRIME COMM'N REPORT, P. 56; JUVENILE
COURT STATISTICS, SUPRA, PP. 2-3.  (2) IN NEW YORK, WHERE MOST
JUVENILES ARE REPRESENTED BY COUNSEL (SEE N. 69, INFRA) AND SUBSTANTIAL
PROCEDURAL RIGHTS ARE AFFORDED (SEE, E.G., NN. 80, 81, 99, INFRA), OUT
OF A FISCAL YEAR 1965-1966 TOTAL OF 10,755 JUVENILE PROCEEDINGS
INVOLVING BOYS, 2,242 WERE DISMISSED FOR FAILURE OF PROOF AT THE FACT
FINDING HEARING; FOR GIRLS, THE FIGURES WERE 306 OUT OF A TOTAL OF
1,051.  NEW YORK JUDICIAL CONFERENCE, TWELFTH ANNUAL REPORT, PP. 314,
316 (1967).  (3) IN ABOUT ONE-HALF OF THE STATES, A JUVENILE MAY BE
TRANSFERRED TO AN ADULT PENAL INSTITUTION AFTER A JUVENILE COURT HAS
FOUND HIM "DELINQUENT" (DELINQUENT CHILDREN IN PENAL INSTITUTIONS,
CHILDREN'S BUREAU PUB. NO. 415-1964, P. 1).  (4) IN SOME JURISDICTIONS
A JUVENILE MAY BE SUBJECTED TO CRIMINAL PROSECUTION FOR THE SAME
OFFENSE FOR WHICH HE HAS SERVED UNDER A JUVENILE COURT COMMITMENT. 
HOWEVER, THE TEXAS PROCEDURE TO THIS EFFECT HAS RECENTLY BEEN HELD
UNCONSTITUTIONAL BY A FEDERAL DISTRICT COURT JUDGE, IN A HABEAS CORPUS
ACTION.  SAWYER V. HAUCK, 245 F. SUPP. 55 (D.C.W.D. TEX.  1965).  (5)
IN MOST OF THE STATES THE JUVENILE MAY END IN CRIMINAL COURT THROUGH
WAIVER (HARVARD LAW REVIEW NOTE, P. 793). 

FN27  MALINSKI V. NEW YORK, 324 U.S. 401, 414 (1945)(SEPARATE
OPINION). 

FN28  FOSTER, SOCIAL WORK, THE LAW, AND SOCIAL ACTION, IN SOCIAL
CASEWORK, JULY 1964, PP. 383, 386. 

FN29  SEE NOTE, RIGHTS AND REHABILITATION IN THE JUVENILE COURTS, 67
COL. L. REV. 281, 321, AND PASSIM (1967). 

FN30  HERE AGAIN, HOWEVER, THERE IS SUBSTANTIAL QUESTION AS TO
WHETHER FACT AND PRETENSION, WITH RESPECT TO THE SEPARATE HANDLING AND
TREATMENT OF CHILDREN, COINCIDE.  SEE GENERALLY INFRA. 

WHILE WE ARE CONCERNED ONLY WITH PROCEDURE BEFORE THE JUVENILE COURT
IN THIS CASE, IT SHOULD BE NOTED THAT TO THE EXTENT THAT THE SPECIAL
PROCEDURES FOR JUVENILES ARE THOUGHT TO BE JUSTIFIED BY THE SPECIAL
CONSIDERATION AND TREATMENT AFFORDED THEM, THERE IS REASON TO DOUBT
THAT JUVENILES ALWAYS RECEIVE THE BENEFITS OF SUCH A QUID PRO QUO.  AS
TO THE PROBLEM AND IMPORTANCE OF SPECIAL CARE AT THE ADJUDICATORY
STAGE, CF. NN. 14 AND 26, SUPRA.  AS TO TREATMENT, SEE NAT'L CRIME
COMM'N REPORT, PP. 80, 87; D.C. CRIME COMM'N REPORT, PP. 665-676, 686
687 (AT P. 687 THE REPORT REFERS TO THE DISTRICT'S "BANKRUPTCY OF
DISPOSITIONAL RESOURCES"), 692-695, 700-718 (AT P. 701 THE REPORT
OBSERVES THAT "THE DEPARTMENT OF PUBLIC WELFARE CURRENTLY LACKS EVEN
THE RUDIMENTS OF ESSENTIAL DIAGNOSTIC AND CLINICAL SERVICES"), WHEELER
& COTTRELL, JUVENILE DELINQUENCY - ITS PREVENTION AND CONTROL (RUSSELL
SAGE FOUNDATION, 1965), PP. 32-35; HARVARD LAW REVIEW NOTE, P. 809;
PAULSEN, JUVENILE COURTS, FAMILY COURTS, AND THE POOR MAN, 54 CALIF. L.
REV. 694, 709-712 (1966); POLIER, A VIEW FROM THE BENCH (1964).  CF.
ALSO, IN THE MATTER OF THE YOUTH HOUSE, INC., REPORT OF THE JULY 1966
"A" TERM OF THE BRONX COUNTY GRAND JURY, SUPREME COURT OF NEW YORK,
COUNTY OF BRONX, TRIAL TERM, PART XII, MARCH 21, 1967 (CF. NEW YORK
TIMES, MARCH 23, 1967, P. 1, COL. 8).  THE HIGH RATE OF JUVENILE
RECIDIVISM CAST SOME DOUBT UPON THE ADEQUACY OF TREATMENT AFFORDED
JUVENILES.  SEE D.C. CRIME COMM'N REPORT, P. 773; NAT'L CRIME COMM'N
REPORT, PP. 55, 78. 

IN FACT, SOME COURTS HAVE RECENTLY INDICATED THAT APPROPRIATE
TREATMENT IS ESSENTIAL TO THE VALIDITY OF JUVENILE CUSTODY, AND
THEREFORE THAT A JUVENILE MAY CHALLENGE THE VALIDITY OF HIS CUSTODY ON
THE GROUND THAT HE IS NOT IN FACT RECEIVING ANY SPECIAL TREATMENT.  SEE
CREEK V. STONE, - U.S. APP. D.C. - , 379 F.2D 106 (1967); KAUTTER V.
REID, 183 F. SUPP. 352 (D.C.D.C. 1960); WHITE V. REID, 125 F. SUPP. 647
(D.C.D.C. 1954).  SEE ALSO ELMORE V. STONE, 122 U.S. APP. D.C. 416, 355
F.2D 841 (1966)(SEPARATE STATEMENT OF BAZELON, C.J.); CLAYTON V. STONE,
123 U.S. APP. D.C. 181, 358 F.2D 548 (1966)(SEPARATE STATEMENT OF
BAZELON, C.J.).  CF. WHEELER & COTTRELL, SUPRA, PP. 32, 35; IN RE RICH,
125 VT. 373, 216 A.2D 266 (1966).  CF. ALSO ROUSE V. CAMERON, 125 U.S.
APP. D.C. 366, 373 F.2D 451 (1966); MILLARD V. CAMERON, 125 U.S. APP.
D.C. 383, 373 F. D 468 (1966). 

FN31  "THE WORD 'DELINQUENT' HAS TODAY DEVELOPED SUCH INVIDIOUS
CONNOTATIONS THAT THE TERMINOLOGY IS IN THE PROCESS OF BEING ALTERED;
THE NEW DESCRIPTIVE PHRASE IS 'PERSONS IN NEED OF SUPERVISION,' USUALLY
SHORTENED TO 'PINS.'"  HARVARD LAW REVIEW NOTE, P. 799, N. 140.  THE
N.Y. FAMILY COURT ACT SEC 712 DISTINGUISHES BETWEEN "DELINQUENTS" AND
"PERSONS IN NEED OF SUPERVISION." 

FN32  SEE, E.G., THE ARIZONA PROVISION, ARS SEC 8-228. 

FN33  HARVARD LAW REVIEW NOTE, PP. 784-785, 800.  CF. NAT'L CRIME
COMM'N REPORT, PP.  87-88; KETCHAM, THE UNFULFILLED PROMISE OF THE
JUVENILE COURT, 7 CRIME & DELIN.  97, 102-103 (1961). 

FN34  HARVARD LAW REVIEW NOTE, PP. 785-787. 

FN35  ID., AT 785, 800.  SEE ALSO, WITH RESPECT TO THE PROBLEM OF
CONFIDENTIALITY OF RECORDS, NOTE, RIGHTS AND REHABILITATION IN THE
JUVENILE COURTS, 67 COL. L. REV. 281, 286-289 (1967).  EVEN THE PRIVACY
OF THE JUVENILE HEARING ITSELF IS NOT ALWAYS ADEQUATELY PROTECTED. 
ID., AT 285-286. 

FN36 MACK, THE JUVENILE COURT, 23 HARV. L. REV. 104, 120 (1909). 

FN37  JUVENILE DELINQUENCY - ITS PREVENTION AND CONTROL (RUSSELL SAGE
FOUNDATION, 1966), P. 33.  THE CONCLUSION OF THE NAT'L CRIME COMM'N
REPORT IS SIMILAR:  "THERE IS INCREASING EVIDENCE THAT THE INFORMAL
PROCEDURES, CONTRARY TO THE ORIGINAL EXPECTATION MAY THEMSELVES
CONSTITUTE A FURTHER OBSTACLE TO EFFECTIVE TREATMENT OF THE DELINQUENT
TO THE EXTENT THAT THEY ENGENDER IN THE CHILD A SENSE OF INJUSTICE
PROVOKED BY SEEMINGLY ALL-POWERFUL AND CHALLENGELESS EXERCISE OF
AUTHORITY BY JUDGES AND PROBATION OFFICERS."  ID., AT 85.  SEE ALSO
ALLEN, THE BORDERLAND OF CRIMINAL JUSTICE (1964), P. 19. 

FN38  HOLMES' APPEAL, 379 PA. 599, 616, 109 A.2D 523, 530
(1945)(MUSMANNO, J., DISSENTING).  SEE ALSO THE STATE (SHEERIN) V.
GOVERNOR, (1966) I.R. 379 (SUPREME COURT OF IRELAND); TRIMBLE V. STONE,
187 F. SUPP. 483, 485-486 (D.C.D.C. 1960); ALLEN, THE BORDERLAND OF
CRIMINAL JUSTICE (1964), PP. 18, 52-56. 

FN39  CF. THE JUVENILE CODE OF ARIZONA, ARS SEC 8-201-6. 

FN40  CF., HOWEVER, THE CONCLUSIONS OF THE D.C. CRIME COMM'N REPORT,
PP. 692-693, CONCERNING THE INADEQUACY OF THE "SOCIAL STUDY RECORDS"
UPON WHICH THE JUVENILE COURT JUDGE MUST MAKE THIS DETERMINATION AND
DECIDE ON APPROPRIATE TREATMENT. 

FN41  THE JUVENILE JUDGE'S TESTIMONY AT THE HABEAS CORPUS PROCEEDING
IS DEVOID OF ANY MEANINGFUL DISCUSSION OF THIS.  HE APPEARS TO HAVE
CENTERED HIS ATTENTION UPON WHETHER GERALD MADE THE PHONE CALL AND USED
LEWD WORDS.  HE WAS IMPRESSED BY THE FACT THAT GERALD WAS ON SIX
MONTHS' PROBATION BECAUSE HE WAS WITH ANOTHER BOY WHO ALLEGEDLY STOLE A
PURSE - A DIFFERENT SORT OF OFFENSE, SHARING THE FEATURE THAT GERALD
WAS "ALONG."  AND HE EVEN REFERRED TO A REPORT WHICH HE SAID WAS NOT
INVESTIGATED BECAUSE "THERE WAS NO ACCUSATION" "BECAUSE OF LACK OF
MATERIAL FOUNDATION." 

WITH RESPECT TO THE POSSIBLE DUTY OF A TRIAL COURT TO EXPLORE
ALTERNATIVES TO INVOLUNTARY COMMITMENT IN A CIVIL PROCEEDING, CF. LAKE
V. CAMERON, 124 U.S. APP. D.C. 264, 364 F.2D 657 (1966), WHICH AROSE
UNDER STATUTES RELATING TO TREATMENT OF THE MENTALLY ILL. 

FN42  WHILE APPELLEE'S BRIEF SUGGESTS THAT THE PROBATION OFFICER MADE
SOME INVESTIGATION OF GERALD'S HOME LIFE, ETC., THERE IS NOT EVEN A
CLAIM THAT THE JUDGE WENT BEYOND THE POINT STATED IN THE TEXT. 

FN43  ARS SECS 8-201, 8-202. 

FN44  JUVENILE DELINQUENCY - ITS PREVENTION AND CONTROL (RUSSELL SAGE
FOUNDATION, 1966), P. 35.  THE GAP BETWEEN RHETORIC AND REALITY IS ALSO
EMPHASIZED IN THE NAT'L CRIME COMM'N REPORT, PP. 80-81. 

FN45  383 U.S., AT 555. 

FN46  383 U.S., AT 554.  THE CHIEF JUSTICE STATED IN A RECENT SPEECH
TO A CONFERENCE OF THE NATIONAL COUNCIL OF JUVENILE COURT JUDGES, THAT
A JUVENILE COURT "MUST FUNCTION WITHIN THE FRAMEWORK OF LAW AND  ...
IN THE ATTAINMENT OF ITS OBJECTIVES IT CANNOT ACT WITH UNBRIDLED
CAPRICE."  EQUAL JUSTICE FOR JUVENILES, 15 JUVENILE COURT JUDGES
JOURNAL, NO. 3, PP. 14, 15 (1964). 

FN47  383 U.S., AT 562. 

FN48  THE NAT'L CRIME COMM'N REPORT RECOMMENDS THAT "JUVENILE COURTS
SHOULD MAKE FULLEST FEASIBLE USE OF PRELIMINARY CONFERENCES TO DISPOSE
OF CASES SHORT OF ADJUDICATION."  ID., AT 84.  SEE ALSO D.C. CRIME
COMM'N REPORT, PP. 662-665.  SINCE THIS "CONSENT DECREE" PROCEDURE
WOULD INVOLVE NEITHER ADJUDICATION OF DELINQUENCY NOR
INSTITUTIONALIZATION, NOTHING WE SAY IN THIS OPINION SHOULD BE
CONSTRUED AS EXPRESSING ANY VIEWS WITH RESPECT TO SUCH PROCEDURE.  THE
PROBLEMS OF PRE-ADJUDICATION TREATMENT OF JUVENILES, AND OF POST
ADJUDICATION DISPOSITION, ARE UNIQUE TO THE JUVENILE PROCESS; HENCE
WHAT WE HOLD IN THIS OPINION WITH REGARD TO THE PROCEDURAL REQUIREMENTS
AT THE ADJUDICATORY STAGE HAS NO NECESSARY APPLICABILITY TO OTHER STEPS
OF THE JUVENILE PROCESS. 

FN49  ARS SEC. 8-222(B). 

FN50  ARIZONA'S JUVENILE CODE DOES NOT PROVIDE FOR NOTICE OF ANY SORT
TO BE GIVEN AT THE COMMENCEMENT OF THE PROCEEDINGS TO THE CHILD OR HIS
PARENTS.  ITS ONLY NOTICE PROVISION IS TO THE EFFECT THAT IF A PERSON
OTHER THAN THE PARENT OR GUARDIAN IS CITED TO APPEAR, THE PARENT OR
GUARDIAN SHALL BE NOTIFIED "BY PERSONAL SERVICE" OF THE TIME AND PLACE
OF HEARING.  ARS SEC 8-224.  THE PROCEDURE FOR INITIATING A PROCEEDING,
AS SPECIFIED BY THE STATUTE, SEEMS TO REQUIRE THAT AFTER A PRELIMINARY
INQUIRY BY THE COURT, A DETERMINATION MAY BE MADE "THAT FORMAL
JURISDICTION SHOULD BE ACQUIRED."  THEREUPON THE COURT MAY AUTHORIZE A
PETITION TO BE FILED.  ARS SEC 8-222.  IT DOES NOT APPEAR THAT THIS
PROCEDURE WAS FOLLOWED IN THE PRESENT CASE. 

FN51  NO SUCH PETITION WAS SERVED OR SUPPLIED IN THE PRESENT CASE. 

FN52  NAT'L CRIME COMM'N REPORT, P. 87.  THE COMMISSION OBSERVED THAT
"THE UNFAIRNESS OF TOO MUCH INFORMALITY IS  ...  REFLECTED IN THE
INADEQUACY OF NOTICE TO PARENTS AND JUVENILES ABOUT CHARGES AND
HEARINGS."  IBID. 

FN53  FOR APPLICATION OF THE DUE PROCESS REQUIREMENT OF ADEQUATE
NOTICE IN A CRIMINAL CONTEXT, SEE, E.G., COLE V. ARKANSAS, 333 U.S. 196
(1948); IN RE OLIVER, 333 U.S. 257, 273-278 (1948).  FOR APPLICATION IN
A CIVIL CONTEXT, SEE, E.G., ARMSTRONG V. MANZO, 380 U.S. 545 (1965);
MULLANE V. CENTRAL HANOVER TR. CO., 339 U.S. 306 (1950).  CF. ALSO
CHALONER V. SHERMAN, 242 U.S. 455 (1917).  THE COURT'S DISCUSSION IN
THESE CASES OF THE RIGHT TO TIMELY AND ADEQUATE NOTICE FORECLOSES ANY
CONTENTION THAT THE NOTICE APPROVED BY THE ARIZONA SUPREME COURT, OR
THE NOTICE ACTUALLY GIVEN THE GAULTS, WAS CONSTITUTIONALLY ADEQUATE. 
SEE ALSO ANTIEAU, CONSTITUTIONAL RIGHTS IN JUVENILE COURTS, 46 CORNELL
L.Q.  387, 395 (1961); PAULSEN, FAIRNESS TO THE JUVENILE OFFENDER, 41
MINN. L. REV. 547, 557 (1957).  CF. STANDARDS, PP. 63-65; PROCEDURES
AND EVIDENCE IN THE JUVENILE COURT, A GUIDEBOOK FOR JUDGES, PREPARED BY
THE ADVISORY COUNCIL OF JUDGES OF THE NATIONAL COUNCIL ON CRIME AND
DELINQUENCY (1962), PP. 9-23 (AND SEE CASES DISCUSSED THEREIN). 

FN54  MRS. GAULT'S "KNOWLEDGE" OF THE CHARGE AGAINST GERALD, AND/OR
THE ASSERTED FAILURE TO OBJECT, DOES NOT EXCUSE THE LACK OF ADEQUATE
NOTICE.  INDEED, ONE OF THE PURPOSES OF NOTICE IS TO CLARIFY THE ISSUES
TO BE CONSIDERED, AND AS OUR DISCUSSION OF THE FACTS, SUPRA, SHOWS,
EVEN THE JUVENILE COURT JUDGE WAS UNCERTAIN AS TO THE PRECISE ISSUES
DETERMINED AT THE TWO "HEARINGS."  SINCE THE GAULTS HAD NO COUNSEL AND
WERE NOT TOLD OF THEIR RIGHT TO COUNSEL, WE CANNOT CONSIDER THEIR
FAILURE TO OBJECT TO THE LACK OF CONSTITUTIONALLY ADEQUATE NOTICE AS A
WAIVER OF RIGHTS.  BECAUSE OF OUR CONCLUSION THAT NOTICE GIVEN ONLY AT
THE FIRST HEARING IS INADEQUATE, WE NEED NOT REACH THE QUESTION WHETHER
THE GAULTS EVER RECEIVED ADEQUTELY SPECIFIC NOTICE EVEN AT THE JUNE 9
HEARING, IN LIGHT OF THE FACT THEY WERE NEVER APPRISED OF THE CHARGE OF
BEING HABITUALLY INVOLVED IN IMMORAL MATTERS. 

FN55  FOR RECENT CASES IN THE DISTRICT OF COLUMBIA HOLDING THAT THERE
MUST BE ADVICE OF THE RIGHT TO COUNSEL, AND TO HAVE COUNSEL APPOINTED
IF NECESSARY, SEE, E.G., SHIOUTAKON V. DISTRICT OF COLUMBIA, 98 U.S.
APP. D.C. 371, 236 F.2D 666 (1956); BLACK V. UNITED STATES, 122 U.S.
APP. D.C. 393, 355 F.2D 104 (1965); IN RE POFF, 135 F. SUPP. 224
(D.C.D.C. 1955).  CF. ALSO IN RE LONG, 184 SO. 2D 861, 862 (1966);
PEOPLE V. DOTSON, 46 CAL. 2D 891, 299 P.2D 875 (1956). 

FN56  THE SECTION CITED BY THE COURT, ARS SEC 8-204-C, READS AS
FOLLOWS: 

"THE PROBATION OFFICER SHALL HAVE THE AUTHORITY OF A PEACE OFFICER. 
HE SHALL: 

"1.  LOOK AFTER THE INTERESTS OF NEGLECTED, DELINQUENT AND DEPENDENT
CHILDREN OF THE COUNTY. 

"2.  MAKE INVESTIGATIONS AND FILE PETITIONS. 

"3. BE PRESENT IN COURT WHEN CASES ARE HEARD CONCERNING CHILDREN AND
REPRESENT THEIR INTERESTS. 

"4.  FURNISH THE COURT INFORMATION AND ASSISTANCE AS IT MAY REQUIRE. 

"5.  ASSIST IN THE COLLECTION OF SUMS ORDERED PAID FOR THE SUPPORT OF
CHILDREN. 

"6.  PERFORM OTHER ACTS ORDERED BY THE COURT." 

FN57  POWELL V. ALABAMA, 287 U.S. 45, 61 (1932); GIDEON V.
WAINWRIGHT, 372 U.S. 335 (1963). 

FN58  IN THE PRESENT PROCEEDING, FOR EXAMPLE, ALTHOUGH THE JUVENILE
JUDGE BELIEVED THAT GERALD'S TELEPHONE CONVERSATION WAS WITHIN THE
CONDEMNATION OF ARS SEC 13-377, HE SUGGESTED SOME UNCERTAINTY BECAUSE
THE STATUTE PROHIBITS THE USE OF VULGAR LANGUAGE "IN THE PRESENCE OR
HEARING OF" A WOMAN OR CHILD. 

FN59  POWELL V. ALABAMA, 287 U.S. 45, 69 (1932). 

FN60  THIS MEANS THAT THE COMMITMENT, IN VIRTUALLY ALL CASES, IS FOR
A MINIMUM OF THREE YEARS SINCE JURISDICTION OF JUVENILE COURTS IS
USUALLY LIMITED TO AGE 18 AND UNDER. 

FN61  SEE CASES CITED IN N. 55, SUPRA. 

FN62  SEE, E.G., SCHINITSKY, 17 THE RECORD 10 (N.Y. CITY BAR ASSN.
1962); PAULSEN, FAIRNESS TO THE JUVENILE OFFENDER, 41 MINN. L. REV.
547, 568-573 (1957); ANTIEAU, CONSTITUTIONAL RIGHTS IN JUVENILE COURTS,
46 CORNELL L.Q. 387, 404-407 (1961); PAULSEN, KENT V. UNITED STATES:
THE CONSTITUTIONAL CONTEXT OF JUVENILE CASES, 1966 SUP. CT. REV. 167,
187-189; KETCHAM, THE LEGAL RENAISSANCE IN THE JUVENILE COURT, 60 NW.
U.L. REV. 585 (1965); ELSON, JUVENILE COURTS & DUE PROCESS, IN JUSTICE
FOR THE CHILD (ROSENHEIM ED.)  95, 103-105 (1962); NOTE, RIGHTS AND
REHABILITATION IN THE JUVENILE COURTS, 67 COL. L. REV. 281, 321-327
(1967).  SEE ALSO NAT'L PROBATION AND PAROLE ASSN., STANDARD FAMILY
COURT ACT (1959) SEC 19, AND STANDARD JUVENILE COURT ACT (1959) SEC 19,
IN 5 NPPA JOURNAL 99, 137, 323, 367 (1959)(HEREINAFTER CITED AS
STANDARD FAMILY COURT ACT AND STANDARD JUVENILE COURT ACT,
RESPECTIVELY). 

FN63  ONLY A FEW STATE STATUTES REQUIRE ADVICE OF THE RIGHT TO
COUNSEL AND TO HAVE COUNSEL APPOINTED.  SEE N.Y. FAMILY COURT ACT SECS
241, 249, 728, 741; CALIF. WELF.  & INST'NS CODE SECS. 633, 634, 659,
700 (1966)(APPOINTMENT IS MANDATORY ONLY IF CONDUCT) WOULD BE A FELONY
IN THE CASE OF AN ADULT); MINN. STAT. ANN. SEC. 260.155(2)(1966
SUPP.)(SEE COMMENT OF LEGISLATIVE COMMISSION ACCOMPANYING THIS
2202 (1961)(LEGAL AID AGENCY "SHALL MAKE ATTORNEYS AVAILABLE TO
REPRESENT INDIGENTS  ...  IN PROCEEDINGS BEFORE THE JUVENILE COURT  ...
."  SEE BLACK V. UNITED STATES, 122 U.S. APP. D.C. 393, 395-396, 355
F.2D 104, 106-107 (1965), CONSTRUING THIS ACT AS PROVIDING A RIGHT TO
APPOINTED COUNSEL AND TO BE INFORMED OF THAT RIGHT).  OTHER STATE
STATUTES ALLOW APPOINTMENT ON REQUEST, OR IN SOME CLASSES OF CASES, OR
IN THE DISCRETION OF THE COURT, ETC.  THE STATE STATUTES ARE COLLECTED
AND CLASSIFIED IN RIEDERER, THE ROLE OF COUNSEL IN THE JUVENILE COURT,
2 J. FAM.  LAW 16, 19-20 (1962), WHICH, HOWEVER, DOES NOT TREAT THE
STATUTES CITED ABOVE.  SEE ALSO NOTE, RIGHTS AND REHABILITATION IN THE
JUVENILE COURTS, 67 COL. L. REV. 281, 321-322 (1967). 

FN64  SKOLER & TENNEY, ATTORNEY REPRESENTATION IN JUVENILE COURT, 4
J. FAM.  LAW 77, 95-96 (1964); RIEDERER, THE ROLE OF COUNSEL IN THE
JUVENILE COURT, 2 J. FAM.  LAW 16 (1962). 

RECOGNITION OF THE RIGHT TO COUNSEL INVOLVES NO NECESSARY
INTERFERENCE WITH THE SPECIAL PURPOSES OF JUVENILE COURT PROCEDURES;
INDEED, IT SEEMS THAT COUNSEL CAN PLAY AN IMPORTANT ROLE IN THE PROCESS
OF REHABILITATION.  SEE NOTE, RIGHTS AND REHABILITATION IN THE JUVENILE
COURTS, 67 COL. L. REV. 281, 324-327 (1967). 

FN65  NAT'L CRIME COMM'N REPORT, PP. 86-87.  THE COMMISSION'S
STATEMENT OF ITS POSITION IS VERY FORCEFUL: 

"THE COMMISSION BELIEVES THAT NO SINGLE ACTION HOLDS MORE POTENTIAL
FOR ACHIEVING PROCEDURAL JUSTICE FOR THE CHILD IN THE JUVENILE COURT
THAN PROVISION FOR COUNSEL.  THE PRESENCE OF AN INDEPENDENT LEGAL
REPRESENTATIVE OF THE CHILD, OR OF HIS PARENT, IS THE KEYSTONE OF THE
WHOLE STRUCTURE OF GUARANTEES THAT A MINIMUM SYSTEM OF PROCEDURAL
JUSTICE REQUIRES.  THE RIGHTS TO CONFRONT ONE'S ACCUSERS, TO CROSS
EXAMINE WITNESSES, TO PRESENT EVIDENCE AND TESTIMONY OF ONE'S OWN, TO
BE UNAFFECTED BY PREJUDICIAL AND UNRELIABLE EVIDENCE, TO PARTICIPATE
MEANINGFULLY IN THE DISPOSITIONAL DECISION, TO MAKE AN APPEAL HAVE
SUBSTANTIAL MEANING FOR THE OVERWHELMING MAJORITY OF PERSONS BROUGHT
BEFORE THE JUVENILE COURT ONLY IF THEY ARE PROVIDED WITH COMPETENT
LAWYERS WHO CAN INVOKE RIGHTS EFFECTIVELY.  THE MOST INFORMAL AND WELL
INTENTIONED OF JUDICIAL PROCEEDINGS ARE TECHNICAL; FEW ADULTS WITHOUT
LEGAL TRAINING CAN INFLUENCE OR EVEN UNDERSTAND THEM; CERTAINLY
CHILDREN CANNOT.  PAPERS ARE DRAWN AND CHARGES EXPRESSED IN LEGAL
LANGUAGE.  EVENTS FOLLOW ONE ANOTHER IN A MANNER THAT APPEARS ARBITRARY
AND CONFUSING TO THE UNINITIATED.  DECISIONS, UNEXPLAINED, APPEAR TOO
OFFICIAL TO CHALLENGE.  BUT WITH LAWYERS COME RECORDS OF PROCEEDINGS;
RECORDS MAKE POSSIBLE APPEALS WHICH, EVEN IF THEY DO NOT OCCUR, IMPART
BY THEIR POSSIBILITY A HEALTHY ATMOSPHERE OF ACCOUNTABILITY. 

"FEARS HAVE BEEN EXPRESSED THAT LAWYERS WOULD MAKE JUVENILE COURT
PROCEEDINGS ADVERSARY.  NO DOUBT THIS IS PARTLY TRUE, BUT IT IS PARTLY
DESIRABLE.  INFORMALITY IS OFTEN ABUSED.  THE JUVENILE COURTS DEAL WITH
CASES IN WHICH FACTS ARE DISPUTED AND IN WHICH, THEREFORE, RULES OF
EVIDENCE, CONFRONTATION OF WITNESSES, AND OTHER ADVERSARY PROCEDURES
ARE CALLED FOR.  THEY DEAL WITH MANY CASES INVOLVING CONDUCT THAT CAN
LEAD TO INCARCERATION OR CLOSE SUPERVISION FOR LONG PERIODS, AND
THEREFORE JUVENILES OFTEN NEED THE SAME SAFEGUARDS THAT ARE GRANTED TO
ADULTS.  AND IN ALL CASES CHILDREN NEED ADVOCATES TO SPEAK FOR THEM AND
GUARD THEIR INTERESTS, PARTICULARLY WHEN DISPOSITION DECISIONS ARE
MADE.  IT IS THE DISPOSITION STAGE AT WHICH THE OPPORTUNITY ARISES TO
OFFER INDIVIDUALIZED TREATMENT PLANS AND IN WHICH THE DANGER INHERES
THAT THE COURT'S COERCIVE POWER WILL BE APPLIED WITHOUT ADEQUATE
KNOWLEDGE OF THE CIRCUMSTANCES. 

"FEARS ALSO HAVE BEEN EXPRESSED THAT THE FORMALITY LAWYERS WOULD
BRING INTO JUVENILE COURT WOULD DEFEAT THE THERAPEUTIC AIMS OF THE
COURT.  BUT INFORMALITY HAS NO NECESSARY CONNECTION WITH THERAPY; IT IS
A DEVICE THAT HAS BEEN USED TO APPROACH THERAPY, AND IT IS NOT THE ONLY
POSSIBLE DEVICE.  IT IS QUITE POSSIBLE THAT IN MANY INSTANCES LAWYERS,
FOR ALL THEIR COMMITMENT TO FORMALITY, COULD DO MORE TO FURTHER THERAPY
FOR THEIR CLIENTS THAN CAN THE SMALL, OVERWORKED SOCIAL STAFFS OF THE
COURTS  ...  . 

"THE COMMISSION BELIEVES IT IS ESSENTIAL THAT COUNSEL BE APPOINTED BY
THE JUVENILE COURT FOR THOSE WHO ARE UNABLE TO PROVIDE THEIR OWN. 
EXPERIENCE UNDER THE PREVAILING SYSTEMS IN WHICH CHILDREN ARE FREE TO
SEEK COUNSEL OF THEIR CHOICE REVEALS HOW EMPTY OF MEANING THE RIGHT IS
FOR THOSE TYPICALLY THE SUBJECTS OF JUVENILE COURT PROCEEDINGS. 
MOREOVER, PROVIDING COUNSEL ONLY WHEN THE CHILD IS SOPHISTICATED ENOUGH
TO BE AWARE OF HIS NEED AND TO ASK FOR ONE OR WHEN HE FAILS TO WAIVE
HIS ANNOUNCED RIGHT IS NOT ENOUGH, AS EXPERIENCE IN NUMEROUS
JURISDICTIONS REVEALS. 

"THE COMMISSION RECOMMENDS: 

"COUNSEL SHOULD BE APPOINTED AS A MATTER OF COURSE WHEREVER COERCIVE
ACTION IS A POSSIBILITY, WITHOUT REQUIRING ANY AFFIRMATIVE CHOICE BY
CHILD OR PARENT." 

FN66  LEHMAN, A JUVENILE'S RIGHT TO COUNSEL IN A DELINQUENCY HEARING,
17 JUVENILE COURT JUDGE'S JOURNAL 53 (1966).  IN AN INTERESTING REVIEW
OF THE 1966 EDITION OF THE CHILDREN'S BUREAU'S "STANDARDS," ROSENHEIM,
STANDARDS FOR JUVENILE AND FAMILY COURTS:  OLD WINE IN A NEW BOTTLE, 1
FAM.  L.Q. 25, 29 (1967), THE AUTHOR OBSERVES THAT "THE 'STANDARDS' OF
1966, JUST LIKE THE 'STANDARDS' OF 1954, ARE VALUABLE PRECISELY BECAUSE
THEY REPRESENT A DILIGENT AND THOUGHTFUL SEARCH FOR AN ACCOMMODATION
BETWEEN THE ASPIRATIONS OF THE FOUNDERS OF THE JUVENILE COURT AND THE
GRIM REALITIES OF LIFE AGAINST WHICH, IN PART, THE DUE PROCESS OF
CRIMINAL AND CIVIL LAW OFFERS US PROTECTION." 

FN67  THESE ARE LAWYERS DESIGNATED, AS PROVIDED BY THE STATUTE, TO
REPRESENT MINORS.  N.Y. FAMILY COURT ACT SEC 242. 

FN68  N.Y. FAMILY COURT ACT SEC 241. 

FN69  N.Y. FAMILY COURT ACT SEC 741.  FOR ACCOUNTS OF NEW YORK
PRACTICE UNDER THE NEW PROCEDURES, SEE ISAACS, THE ROLE OF THE LAWYER
IN REPRESENTING MINORS IN THE NEW FAMILY COURT, 12 BUFFALO L. REV. 501
(1963); DEMBITZ, FERMENT AND EXPERIMENT IN NEW YORK:  JUVENILE CASES IN
THE NEW FAMILY COURT, 48 CORNELL L.Q. 499, 508-512 (1963).  SINCE
INTRODUCTION OF THE LAW GUARDIAN SYSTEM IN SEPTEMBER OF 1962, IT IS
STATED THAT ATTORNEYS ARE PRESENT IN THE GREAT MAJORITY OF CASES. 
HARVARD LAW REVIEW NOTE, P. 796.  SEE NEW YORK JUDICIAL CONFERENCE,
TWELFTH ANNUAL REPORT, PP. 288-291 (1967), FOR DETAILED STATISTICS ON
REPRESENTATION OF JUVENILES IN NEW YORK.  FOR THE SITUATION BEFORE
1962, SEE SCHINITSKY, THE ROLE OF THE LAWYER IN CHILDREN'S COURT, 17
THE RECORD 10 (N.Y. CITY BAR ASSN. 1962).  IN THE DISTRICT OF COLUMBIA,
WHERE STATUTE AND COURT DECISIONS REQUIRE THAT A LAWYER BE APPOINTED IF
THE FAMILY IS UNABLE TO RETAIN COUNSEL, SEE N. 63, SUPRA, AND WHERE THE
JUVENILE AND HIS PARENTS ARE SO INFORMED AT THE INITIAL HEARING, ABOUT
85% TO 90% DO NOT CHOOSE TO BE REPRESENTED AND SIGN A WRITTEN WAIVER
FORM.  D.C. CRIME COMM'N REPORT, P. 646.  THE COMMISSION RECOMMENDS
ADOPTION IN THE DISTRICT OF COLUMBIA OF A "LAW GUARDIAN" SYSTEM SIMILAR
TO THAT OF NEW YORK, WITH MORE EFFECTIVE NOTIFICATION OF THE RIGHT TO
APPOINTED COUNSEL, IN ORDER TO ELIMINATE THE PROBLEMS OF PROCEDURAL
FAIRNESS, ACCURACY OF FACT-FINDING, AND APPROPRIATENESS OF DISPOSITION
WHICH THE ABSENCE OF COUNSEL IN SO MANY JUVENILE COURT PROCEEDINGS
INVOLVES.  ID., AT 681-685. 

FN70  SEE N. 63, SUPRA. 

FN71  JOHNSON V. ZERBST, 304 U.S. 458, 464 (1938); CARNLEY V.
COCHRAN, 369 U.S. 506 (1962); UNITED STATES EX REL. BROWN V. FAY, 242
F. SUPP. 273 (D.C.S.D.N.Y. 1965). 

FN72  THE PRIVILEGE IS APPLICABLE TO STATE PROCEEDINGS.  MALLOY V.
HOGAN, 378 U.S. 1 (1964). 

FN73  POINTER V. TEXAS, 380 U.S. 400 (1965); DOUGLAS V. ALABAMA, 380
U.S. 415 (1965). 

FN74  FOR THIS REASON, WE CANNOT CONSIDER THE STATUS OF GERALD'S
ALLEGED ADMISSIONS TO THE PROBATION OFFICERS.  CF., HOWEVER, COMMENT,
MIRANDA GUARANTEES IN THE CALIFORNIA JUVENILE COURT, 7 SANTA CLARA
LAWYER 114 (1966). 

FN75  3 WIGMORE, EVIDENCE SEC. 822 (3D ED. 1940). 

FN76  332 U.S., AT 599-600 (OPINION OF MR. JUSTICE DOUGLAS, JOINED BY
JUSTICES BLACK, MURPHY AND RUTLEDGE; JUSTICE FRANKFURTER CONCURRED IN A
SEPARATE OPINION). 

FN77  SEE FORTAS, THE FIFTH AMENDMENT, 25 CLEVELAND BAR ASSN. JOURNAL
91 (1954). 

FN78  SEE ROGERS V. RICHMOND, 365 U.S. 534 (1961); CULOMBE V.
CONNECTICUT, 367 U.S. 568 (1961)(OPINION OF MR. JUSTICE FRANKFURTER,
JOINED BY MR. JUSTICE STEWART); MIRANDA V. ARIZONA, 384 U.S. 436
(1966). 

FN79  SEE ALSO MALLOY V. HOGAN, 378 U.S. 1 (1964); MCCARTHY V.
ARNDSTEIN, 266 U.S. 34, 40 (1924). 

FN80  N.Y. FAMILY COURT ACT SEC 741. 

FN81  N.Y. FAMILY COURT ACT SEC 724(A).  IN IN THE MATTER OF
WILLIAMS, 49 MISC. 2D 154, 267 N.Y.S.2D 91 (1966), THE NEW YORK FAMILY
COURT HELD THAT "THE FAILURE OF THE POLICE TO NOTIFY THIS CHILD'S
PARENTS THAT HE HAD BEEN TAKEN INTO CUSTODY, IF NOT ALONE SUFFICIENT TO
RENDER HIS CONFESSION INADMISSIBLE, IS GERMANE ON THE ISSUE OF ITS
VOLUNTARY CHARACTER  ...  ."  ID., AT 165, 267 N.Y.S.2D, AT 106.  THE
CONFESSION WAS HELD INVOLUNTARY AND THEREFORE INADMISSIBLE.    FN82
N.Y. FAMILY COURT ACT SEC 724 (AS AMENDED 1963, SEE SUPP. 1966).  SEE
IN THE MATTER OF ADDISON, 20 APP. DIV. 2D 90, 245 N.Y.S.2D 243 (1963). 

FN83  THE ISSUES RELATING TO FINGERPRINTING OF JUVENILES ARE NOT
PRESENTED HERE, AND WE EXPRESS NO OPINION CONCERNING THEM. 

FN84  STANDARDS, P. 49. 

FN85 SEE N. 79, SUPRA, AND ACCOMPANYING TEXT. 

FN86  DELINQUENT CHILDREN IN PENAL INSTITUTIONS, CHILDREN'S BUREAU
PUB. NO. 415 - 1964, P. 1. 

FN87  SEE, E.G., MIRANDA V. ARIZONA, 384 U.S. 436 (1966); GARRITY V.
NEW JERSEY, 385 U.S. 493 (1967); SPEVACK V. KLEIN, 385 U.S. 511 (1967);
HAYNES V. WASHINGTON, 373 U.S. 503 (1963); CULOMBE V. CONNECTICUT, 367
U.S. 568 (1961); ROGERS V. RICHMOND, 365 U.S. 534 (1961); MALLOY V.
HOGAN, 378 U.S. 1 (1964); GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965). 

FN88  ARIZONA CONSTITUTION, ART. 6, SEC 15 (AS AMENDED 1960); ARS
SECS 8-223, 8-228(A); HARVARD LAW REVIEW NOTE, P. 793.  BECAUSE OF THIS
POSSIBILITY THAT CRIMINAL JURISDICTION MAY ATTACH IT IS URGED THAT "
...  ALL OF THE PROCEDURAL SAFEGUARDS IN THE CRIMINAL LAW SHOULD BE
FOLLOWED."  STANDARDS, P. 49.  CF. HARLING V. UNITED STATES, 111 U.S.
APP.  D.C. 174, 295 F.2D 161 (1961). 

FN89  ARS SEC 8-228(A). 

FN90  JUVENILE DELINQUENCY - ITS PREVENTION AND CONTROL (RUSSELL SAGE
FOUNDATION, 1966). 

FN91  ID., AT 33.  SEE ALSO THE OTHER MATERIALS CITED IN N. 37,
SUPRA. 

FN92  N.J. REV. STAT. SEC. 2A:4-37(B)(2)(SUPP.  1966); N.J. REV.
STAT. SEC. 2A:113-4. 

FN93  N.J. REV. STAT. SEC 2A:4-32-33.  THE COURT EMPHASIZED THAT THE
"FRIGHTENING ATMOSPHERE" OF A POLICE STATION IS LIKELY TO HAVE "HARMFUL
EFFECTS ON THE MIND AND WILL OF THE BOY," CITING IN THE MATTER OF
RUTANE, 37 MISC. 2D 234, 234 N.Y.S.2D 777 (FAM.  CT.  KINGS COUNTY,
1962). 

FN94  THE COURT HELD THAT THIS ALONE MIGHT BE ENOUGH TO SHOW THAT THE
CONFESSIONS WERE INVOLUNTARY "EVEN THOUGH, AS THE POLICE TESTIFIED, THE
BOYS DID NOT WISH TO SEE THEIR PARENTS" (CITING GALLEGOS V. COLORADO,
370 U.S. 49 (1962)). 

FN95  THE COURT QUOTED THE FOLLOWING PASSAGE FROM HALEY V. OHIO,
SUPRA, AT 601: 

"BUT WE ARE TOLD THAT THIS BOY WAS ADVISED OF HIS CONSTITUTIONAL
RIGHTS BEFORE HE SIGNED THE CONFESSION AND THAT, KNOWING THEM, HE
NEVERTHELESS CONFESSED.  THAT ASSUMES, HOWEVER, THAT A BOY OF FIFTEEN,
WITHOUT AID OF COUNSEL, WOULD HAVE A FULL APPRECIATION OF THAT ADVICE
AND THAT ON THE FACTS OF THIS RECORD HE HAD A FREEDOM OF CHOICE.  WE
CANNOT INDULGE THOSE ASSUMPTIONS.  MOREOVER, WE CANNOT GIVE ANY WEIGHT
TO RECITALS WHICH MERELY FORMALIZE CONSTITUTIONAL REQUIREMENTS. 
FORMULAS OF RESPECT FOR CONSTITUTIONAL SAFEGUARDS CANNOT PREVAIL OVER
THE FACTS OF LIFE WHICH CONTRADICT THEM.  THEY MAY NOT BECOME A CLOAK
FOR INQUISITORIAL PRACTICES AND MAKE AN EMPTY FORM OF THE DUE PROCESS
OF LAW FOR WHICH FREE MEN FOUGHT AND DIED TO OBTAIN." 

FN96  THE N.Y. FAMILY COURT ACT SEC 744(B) PROVIDES THAT "AN
UNCORROBORATED CONFESSION MADE OUT OF COURT BY A RESPONDENT IS NOT
SUFFICIENT" TO CONSTITUTE THE REQUIRED "PREPONDERANCE OF THE
EVIDENCE." 

SEE UNITED STATES V. MORALES, 233 F. SUPP. 160 (D.C. MONT. 1964),
HOLDING A CONFESSION INADMISSIBLE IN PROCEEDINGS UNDER THE FEDERAL
JUVENILE DELINQUENCY ACT (18 U.S.C. SEC 5031 ET SEQ.) BECAUSE, IN THE
CIRCUMSTANCES IN WHICH IT WAS MADE, THE DISTRICT COURT COULD NOT
CONCLUDE THAT IT "WAS FREELY MADE WHILE MORALES WAS AFFORDED ALL OF THE
REQUISITES OF DUE PROCESS REQUIRED IN THE CASE OF A SIXTEEN YEAR OLD
BOY OF HIS EXPERIENCE."  ID., AT 170. 

FN97  CF. JACKSON V. DENNO, 378 U.S. 368 (1964); MIRANDA V. ARIZONA,
384 U.S. 436 (1966). 

FN98  STANDARDS, PP. 72-73.  THE NAT'L CRIME COMM'N REPORT CONCLUDES
THAT "THE EVIDENCE ADMISSIBLE AT THE ADJUDICATORY HEARING SHOULD BE SO
LIMITED THAT FINDINGS ARE NOT DEPENDENT UPON OR UNDULY INFLUENCED BY
HEARSAY, GOSSIP, RUMOR, AND OTHER UNRELIABLE TYPES OF INFORMATION.  TO
MINIMIZE THE DANGER THAT ADJUDICATION WILL BE AFFECTED BY INAPPROPRIATE
CONSIDERATIONS, SOCIAL INVESTIGATION REPORTS SHOULD NOT BE MADE KNOWN
TO THE JUDGE IN ADVANCE OF ADJUDICATION."  ID., AT 87.  SEE ALSO NOTE,
RIGHTS AND REHABILITATION IN THE JUVENILE COURTS, 67 COL. L. REV. 281,
336 (1967):  "AT THE ADJUDICATION STAGE, THE USE OF CLEARLY INCOMPETENT
EVIDENCE IN ORDER TO PROVE THE YOUTH'S INVOLVEMENT IN THE ALLEGED
MISCONDUCT  ...  IS NOT JUSTIFIABLE.  PARTICULARLY IN DELINQUENCY
CASES, WHERE THE ISSUE OF FACT IS THE COMMISSION OF A CRIME, THE
INTRODUCTION OF HEARSAY - SUCH AS THE REPORT OF A POLICEMAN WHO DID NOT
WITNESS THE EVENTS - CONTRAVENES THE PURPOSES UNDERLYING THE SIXTH
AMENDMENT RIGHT OF CONFRONTATION." 

FN99  N.Y. FAMILY COURT ACT SEC 744(A).  SEE ALSO HARVARD LAW REVIEW
NOTE, P. 795.  CF. WILLNER V. COMMITTEE ON CHARACTER, 373 U.S. 96
(1963). 

FN100  ARS SEC 8-238. 

FN101  GRIFFIN V. ILLINOIS, 351 U.S. 12, 18 (1956). 

FN102  "STANDARDS FOR JUVENILE AND FAMILY COURTS" RECOMMENDS "WRITTEN
FINDINGS OF FACT, SOME FORM OF RECORD OF THE HEARING" "AND THE RIGHT TO
APPEAL."  STANDARDS, P. 8.  IT RECOMMENDS VERBATIM RECORDING OF THE
HEARING BY STENOTYPIST OR MECHANICAL RECORDING (P. 76) AND URGES THAT
THE JUDGE MAKE CLEAR TO THE CHILD AND FAMILY THEIR RIGHT TO APPEAL (P.
78).  SEE ALSO, STANDARD FAMILY COURT ACT SECS 19, 24, 28; STANDARD
JUVENILE COURT ACT SECS 19, 24, 28.  THE HARVARD LAW REVIEW NOTE, P.
799, STATES THAT "THE RESULT OF THE INFREQUENCY OF APPEALS DUE TO
ABSENCE OF RECORD, INDIGENCY, ETC. IS THAT JUVENILE COURT PROCEEDINGS
ARE LARGELY UNSUPERVISED."  THE NAT'L CRIME COMM'N REPORT OBSERVES, P.
86, THAT "RECORDS MAKE POSSIBLE APPEALS WHICH, EVEN IF THEY DO NOT
OCCUR, IMPART BY THEIR POSSIBILITY A HEALTHY ATMOSPHERE OF
ACCOUNTABILITY." 

MR. JUSTICE BLACK, CONCURRING. 

THE JUVENILE COURT LAWS OF ARIZONA AND OTHER STATES, AS THE COURT
POINTS OUT, ARE THE RESULT OF PLANS PROMOTED BY HUMANE AND FORWARD
LOOKING PEOPLE TO PROVIDE A SYSTEM OF COURTS, PROCEDURES, AND SANCTIONS
DEEMED TO BE LESS HARMFUL AND MORE LENIENT TO CHILDREN THAN TO ADULTS. 
FOR THIS REASON SUCH STATE LAWS GENERALLY PROVIDE LESS FORMAL AND LESS
PUBLIC METHODS FOR THE TRIAL OF CHILDREN.  IN LINE WITH THIS POLICY,
BOTH COURTS AND LEGISLATORS HAVE SHRUNK BACK FROM LABELING THESE LAWS
AS "CRIMINAL" AND HAVE PREFERRED TO CALL THEM "CIVIL."  THIS, IN PART,
WAS TO PREVENT THE FULL APPLICATION TO JUVENILE COURT CASES OF THE BILL
OF RIGHTS SAFEGUARDS, INCLUDING NOTICE AS PROVIDED IN THE SIXTH
AMENDMENT,  (FN1)  THE RIGHT TO COUNSEL GUARANTEED BY THE SIXTH,  (FN2)
THE RIGHT AGAINST SELF-INCRIMINATION GUARANTEED BY THE FIFTH,  (FN3)
AND THE RIGHT TO CONFRONTATION GUARANTEED BY THE SIXTH.  (FN4)  THE
COURT HERE HOLDS, HOWEVER, THAT THESE FOUR BILL OF RIGHTS SAFEGUARDS
APPLY TO PROTECT A JUVENILE ACCUSED IN A JUVENILE COURT ON A CHARGE
UNDER WHICH HE CAN BE IMPRISONED FOR A TERM OF YEARS.  THIS HOLDING
STRIKES A WELL-NIGH FATAL BLOW TO MUCH THAT IS UNIQUE ABOUT THE
JUVENILE COURTS IN THE NATION.  FOR THIS REASON, THERE IS MUCH TO BE
SAID FOR THE POSITION OF MY BROTHER STEWART THAT WE SHOULD NOT PASS ON
ALL THESE ISSUES UNTIL THEY ARE MORE SQUARELY PRESENTED.  BUT SINCE THE
MAJORITY OF THE COURT CHOOSES TO DECIDE ALL OF THESE QUESTIONS, I MUST
EITHER DO THE SAME OR LEAVE MY VIEWS UNEXPRESSED ON THE IMPORTANT
ISSUES DETERMINED.  IN THESE CIRCUMSTANCES, I FEEL IMPELLED TO EXPRESS
MY VIEWS. 

THE JUVENILE COURT PLANNERS ENVISAGED A SYSTEM THAT WOULD PRACTICALLY
IMMUNIZE JUVENILES FROM "PUNISHMENT" FOR "CRIMES" IN AN EFFORT TO SAVE
THEM FROM YOUTHFUL INDISCRETIONS AND STIGMAS DUE TO CRIMINAL CHARGES OR
CONVICTIONS.  I AGREE WITH THE COURT, HOWEVER, THAT THIS EXALTED IDEAL
HAS FAILED OF ACHIEVEMENT SINCE THE BEGINNING OF THE SYSTEM.  INDEED,
THE STATE LAWS FROM THE FIRST ONE ON CONTAINED PROVISIONS, WRITTEN IN
EMPHATIC TERMS, FOR ARRESTING AND CHARGING JUVENILES WITH VIOLATIONS OF
STATE CRIMINAL LAWS, AS WELL AS FOR TAKING JUVENILES BY FORCE OF LAW
AWAY FROM THEIR PARENTS AND TURNING THEM OVER TO DIFFERENT INDIVIDUALS
OR GROUPS OR FOR CONFINEMENT WITHIN SOME STATE SCHOOL OR INSTITUTION
FOR A NUMBER OF YEARS.  THE LATTER OCCURRED IN THIS CASE.  YOUNG GAULT
WAS ARRESTED AND DETAINED ON A CHARGE OF VIOLATING AN ARIZONA PENAL LAW
BY USING VILE AND OFFENSIVE LANGUAGE TO A LADY ON THE TELEPHONE.  IF AN
ADULT, HE COULD ONLY HAVE BEEN FINED OR IMPRISONED FOR TWO MONTHS FOR
HIS CONDUCT.  AS A JUVENILE, HOWEVER, HE WAS PUT THROUGH A MORE OR LESS
SECRET, INFORMAL HEARING BY THE COURT, AFTER WHICH HE WAS ORDERED, OR,
MORE REALISTICALLY, "SENTENCED," TO CONFINEMENT IN ARIZONA'S INDUSTRIAL
SCHOOL UNTIL HE REACHES 21 YEARS OF AGE.  THUS, IN A JUVENILE SYSTEM
DESIGNED TO LIGHTEN OR AVOID PUNISHMENT FOR CRIMINALITY, HE WAS ORDERED
BY THE STATE TO SIX YEARS' CONFINEMENT IN WHAT IS IN ALL BUT NAME A
PENITENTIARY OR JAIL. 

WHERE A PERSON, INFANT OR ADULT, CAN BE SEIZED BY THE STATE, CHARGED,
AND CONVICTED FOR VIOLATING A STATE CRIMINAL LAW, AND THEN ORDERED BY
THE STATE TO BE CONFINED FOR SIX YEARS, I THINK THE CONSTITUTION
REQUIRES THAT HE BE TRIED IN ACCORDANCE WITH THE GUARANTEES OF ALL THE
PROVISIONS OF THE BILL OF RIGHTS MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT.  UNDOUBTEDLY THIS WOULD BE TRUE OF AN ADULT
DEFENDANT, AND IT WOULD BE A PLAIN DENIAL OF EQUAL PROTECTION OF THE
LAWS - AN INVIDIOUS DISCRIMINATION - TO HOLD THAT OTHERS SUBJECT TO
HEAVIER PUNISHMENTS COULD, BECAUSE THEY ARE CHILDREN, BE DENIED THESE
SAME CONSTITUTIONAL SAFEGUARDS.  I CONSEQUENTLY AGREE WITH THE COURT
THAT THE ARIZONA LAW AS APPLIED HERE DENIED TO THE PARENTS AND THEIR
SON THE RIGHT OF NOTICE, RIGHT TO COUNSEL, RIGHT AGAINST SELF
INCRIMINATION, AND RIGHT TO CONFRONT THE WITNESSES AGAINST YOUNG
GAULT.  APPELLANTS ARE ENTITLED TO THESE RIGHTS, NOT BECAUSE "FAIRNESS,
IMPARTIALITY AND ORDERLINESS - IN SHORT, THE ESSENTIALS OF DUE PROCESS"
- REQUIRE THEM AND NOT BECAUSE THEY ARE "THE PROCEDURAL RULES WHICH
HAVE BEEN FASHIONED FROM THE GENERALITY OF DUE PROCESS," BUT BECAUSE
THEY ARE SPECIFICALLY AND UNEQUIVOCALLY GRANTED BY PROVISIONS OF THE
FIFTH AND SIXTH AMENDMENTS WHICH THE FOURTEENTH AMENDMENT MAKES
APPLICABLE TO THE STATES. 

A FEW WORDS SHOULD BE ADDED BECAUSE OF THE OPINION OF MY BROTHER
HARLAN WHO RESTS HIS CONCURRENCE AND DISSENT ON THE DUE PROCESS CLAUSE
ALONE.  HE READS THAT CLAUSE ALONE AS ALLOWING THIS COURT "TO DETERMINE
WHAT FORMS OF PROCEDURAL PROTECTION ARE NECESSARY TO GUARANTEE THE
FUNDAMENTAL FAIRNESS OF JUVENILE PROCEEDINGS" "IN A FASHION CONSISTENT
WITH THE 'TRADITIONS AND CONSCIENCE OF OUR PEOPLE.'"   CF. ROCHIN V.
CALIFORNIA, 342 U.S. 165.  HE BELIEVES THAT THE DUE PROCESS CLAUSE
GIVES THIS COURT THE POWER, UPON WEIGHING A "COMPELLING PUBLIC
INTEREST," TO IMPOSE ON THE STATES ONLY THOSE SPECIFIC CONSTITUTIONAL
RIGHTS WHICH THE COURT DEEMS "IMPERATIVE" AND "NECESSARY" TO COMPORT
WITH THE COURT'S NOTIONS OF "FUNDAMENTAL FAIRNESS." 

I CANNOT SUBSCRIBE TO ANY SUCH INTERPRETATION OF THE DUE PROCESS
CLAUSE.  NOTHING IN ITS WORDS OR ITS HISTORY PERMITS IT, AND "FAIR
DISTILLATIONS OF RELEVANT JUDICIAL HISTORY" ARE NO SUBSTITUTE FOR THE
WORDS AND HISTORY OF THE CLAUSE ITSELF.  THE PHRASE "DUE PROCESS OF
LAW" HAS THROUGH THE YEARS EVOLVED AS THE SUCCESSOR IN PURPOSE AND
MEANING TO THE WORDS "LAW OF THE LAND" IN MAGNA CHARTA WHICH MORE
PLAINLY INTENDED TO CALL FOR A TRIAL ACCORDING TO THE EXISTING LAW OF
THE LAND IN EFFECT AT THE TIME AN ALLEGED OFFENSE HAD BEEN COMMITTED. 
THAT PROVISION IN MAGNA CHARTA WAS DESIGNED TO PREVENT DEFENDANTS FROM
BEING TRIED ACCORDING TO CRIMINAL LAWS OR PROCLAMATIONS SPECIFICALLY
PROMULGATED TO FIT PARTICULAR CASES OR TO ATTACH NEW CONSEQUENCES TO
OLD CONDUCT.  NOTHING DONE SINCE MAGNA CHARTA CAN BE POINTED TO AS
INTIMATING THAT THE DUE PROCESS CLAUSE GIVES COURTS POWER TO FASHION
LAWS IN ORDER TO MEET NEW CONDITIONS, TO FIT THE "DECENCIES" OF CHANGED
CONDITIONS, OR TO KEEP THEIR CONSCIENCES FROM BEING SHOCKED BY
LEGISLATION, STATE OR FEDERAL. 

AND, OF COURSE, THE EXISTENCE OF SUCH AWESOME JUDICIAL POWER CANNOT
BE BUTTRESSED OR CREATED BY RELYING ON THE WORD "PROCEDURAL."  WHETHER
LABELED AS "PROCEDURAL" OR "SUBSTANTIVE," THE BILL OF RIGHTS
SAFEGUARDS, FAR FROM BEING MERE "TOOLS WITH WHICH" OTHER UNSPECIFIED
"RIGHTS COULD BE FULLY VINDICATED," ARE THE VERY VITALS OF A SOUND
CONSTITUTIONAL LEGAL SYSTEM DESIGNED TO PROTECT AND SAFEGUARD THE MOST
CHERISHED LIBERTIES OF A FREE PEOPLE.  THESE SAFEGUARDS WERE WRITTEN
INTO OUR CONSTITUTION NOT BY JUDGES BUT BY CONSTITUTION MAKERS. 
FREEDOM IN THIS NATION WILL BE FAR LESS SECURE THE VERY MOMENT THAT IT
IS DECIDED THAT JUDGES CAN DETERMINE WHICH OF THESE SAFEGUARDS "SHOULD"
OR "SHOULD NOT BE IMPOSED" ACCORDING TO THEIR NOTIONS OF WHAT
CONSTITUTIONAL PROVISIONS ARE CONSISTENT WITH THE "TRADITIONS AND
CONSCIENCE OF OUR PEOPLE."  JUDGES WITH SUCH POWER, EVEN THOUGH THEY
PROFESS TO "PROCEED WITH RESTRAINT," WILL BE ABOVE THE CONSTITUTION,
WITH POWER TO WRITE IT, NOT MERELY TO INTERPRET IT, WHICH I BELIEVE TO
BE THE ONLY POWER CONSTITUTIONALLY COMMITTED TO JUDGES. 

THERE IS ONE OMINOUS SENTENCE, IF NOT MORE, IN MY BROTHER HARLAN'S
OPINION WHICH BODES ILL, IN MY JUDGMENT, BOTH FOR LEGISLATIVE PROGRAMS
AND CONSTITUTIONAL COMMANDS.  SPEAKING OF PROCEDURAL SAFEGUARDS IN THE
BILL OF RIGHTS, HE SAYS: 

"THESE FACTORS IN COMBINATION SUGGEST THAT LEGISLATURES MAY PROPERLY
EXPECT ONLY A CAUTIOUS DEFERENCE FOR THEIR PROCEDURAL JUDGMENTS, BUT
THAT, CONVERSELY, COURTS MUST EXERCISE THEIR SPECIAL RESPONSIBILITY FOR
PROCEDURAL GUARANTEES WITH CARE TO PERMIT AMPLE SCOPE FOR ACHIEVING THE
PURPOSES OF LEGISLATIVE PROGRAMS  ...  .  THE COURT SHOULD NECESSARILY
PROCEED WITH RESTRAINT." 

IT IS TO BE NOTED HERE THAT THIS CASE CONCERNS BILL OF RIGHTS
AMENDMENTS; THAT THE "PROCEDURE" POWER MY BROTHER HARLAN CLAIMS FOR THE
COURT HERE RELATES SOLELY TO BILL OF RIGHTS SAFEGUARDS; AND THAT HE IS
HERE CLAIMING FOR THE COURT A SUPREME POWER TO FASHION NEW BILL OF
RIGHTS SAFEGUARDS ACCORDING TO THE COURT'S NOTIONS OF WHAT FITS
TRADITION AND CONSCIENCE.  I DO NOT BELIEVE THAT THE CONSTITUTION VESTS
ANY SUCH POWER IN JUDGES, EITHER IN THE DUE PROCESS CLAUSE OR ANYWHERE
ELSE.  CONSEQUENTLY, I DO NOT VOTE TO INVALIDATE THIS ARIZONA LAW ON
THE GROUND THAT IT IS "UNFAIR" BUT SOLELY ON THE GROUND THAT IT
VIOLATES THE FIFTH AND SIXTH AMENDMENTS MADE OBLIGATORY ON THE STATES
BY THE FOURTEENTH AMENDMENT.  CF. POINTER V. TEXAS, 380 U.S. 400, 412
(GOLDBERG, J., CONCURRING).  IT IS ENOUGH FOR ME THAT THE ARIZONA LAW
AS HERE APPLIED COLLIDES HEAD-ON WITH THE FIFTH AND SIXTH AMENDMENTS IN
THE FOUR RESPECTS MENTIONED.  THE ONLY RELEVANCE TO ME OF THE DUE
PROCESS CLAUSE IS THAT IT WOULD, OF COURSE, VIOLATE DUE PROCESS OR THE
"LAW OF THE LAND" TO ENFORCE A LAW THAT COLLIDES WITH THE BILL OF
RIGHTS. 

FN1  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT
...  TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION  ...
."  ALSO REQUIRING NOTICE IS THE FIFTH AMENDMENT'S PROVISION THAT "NO
PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS
CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY  ...  ." 

FN2  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL  ...  HAVE THE
ASSISTANCE OF COUNSEL IN HIS DEFENCE." 

FN3  "NO PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF  ...  ."

FN4  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT
...  TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM  ...  ." 

MR. JUSTICE WHITE, CONCURRING. 

I JOIN THE COURT'S OPINION EXCEPT FOR PART V. I ALSO AGREE THAT THE
PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION APPLIES AT THE
ADJUDICATORY STAGE OF JUVENILE COURT PROCEEDINGS.  I DO NOT, HOWEVER,
FIND AN ADEQUATE BASIS IN THE RECORD FOR DETERMINING WHETHER THAT
PRIVILEGE WAS VIOLATED IN THIS CASE.  THE FIFTH AMENDMENT PROTECTS A
PERSON FROM BEING "COMPELLED" IN ANY CRIMINAL PROCEEDING TO BE A
WITNESS AGAINST HIMSELF.  COMPULSION IS ESSENTIAL TO A VIOLATION.  IT
MAY BE THAT WHEN A JUDGE, ARMED WITH THE AUTHORITY HE HAS OR WHICH
PEOPLE THINK HE HAS, ASKS QUESTIONS OF A PARTY OR A WITNESS IN AN
ADJUDICATORY HEARING, THAT PERSON, ESPECIALLY IF A MINOR, WOULD FEEL
COMPELLED TO ANSWER, ABSENT A WARNING TO THE CONTRARY OR SIMILAR
INFORMATION FROM SOME OTHER SOURCE.  THE DIFFICULTY IS THAT THE RECORD
MADE AT THE HABEAS CORPUS HEARING, WHICH IS THE ONLY INFORMATION WE
HAVE CONCERNING THE PROCEEDINGS IN THE JUVENILE COURT, DOES NOT
DIRECTLY INFORM US WHETHER GERALD GAULT OR HIS PARENTS WERE TOLD OF
GERALD'S RIGHT TO REMAIN SILENT; NOR DOES IT REVEAL WHETHER THE PARTIES
WERE AWARE OF THE PRIVILEGE FROM SOME OTHER SOURCE, JUST AS THEY WERE
ALREADY AWARE THAT THEY HAD THE RIGHT TO HAVE THE HELP OF COUNSEL AND
TO HAVE WITNESSES ON THEIR BEHALF.  THE PETITION FOR HABEAS CORPUS DID
NOT RAISE THE FIFTH AMENDMENT ISSUE NOR DID ANY OF THE WITNESSESS FOCUS
ON IT.

I HAVE PREVIOUSLY RECORDED MY VIEWS WITH RESPECT TO WHAT I HAVE
DEEMED UNSOUND APPLICATIONS OF THE FIFTH AMENDMENT.  SEE, FOR EXAMPLE,
MIRANDA V. ARIZONA, 384 U.S. 436, 526, AND MALLOY V. HOGAN, 378 U.S. 1,
33, DISSENTING OPINIONS.  THESE VIEWS, OF COURSE, HAVE NOT PREVAILED. 
BUT I DO HOPE THAT THE COURT WILL PROCEED WITH SOME CARE IN EXTENDING
THE PRIVILEGE, WITH ALL ITS VIGOR, TO PROCEEDINGS IN JUVENILE COURT,
PARTICULARLY THE NONADJUDICATORY STAGES OF THOSE PROCEEDINGS. 

IN ANY EVENT, I WOULD NOT REACH THE FIFTH AMENDMENT ISSUE HERE.  I
THINK THE COURT IS CLEARLY ILL-ADVISED TO REVIEW THIS CASE ON THE BASIS
OF MIRANDA V. ARIZONA, SINCE THE ADJUDICATION OF DELINQUENCY TOOK PLACE
IN 1964, LONG BEFORE THE MIRANDA DECISION.  SEE JOHNSON V. NEW JERSEY,
384 U.S. 719.  UNDER THESE CIRCUMSTANCES, THIS CASE IS A POOR VEHICLE
FOR RESOLVING A DIFFICULT PROBLEM.   MOREOVER, NO PREJUDICE TO
APPELLANTS IS AT STAKE IN THIS REGARD.  THE JUDGMENT BELOW MUST BE
REVERSED ON OTHER GROUNDS AND IN THE EVENT FURTHER PROCEEDINGS ARE TO
BE HAD, GERALD GAULT WILL HAVE COUNSEL AVAILABLE TO ADVISE HIM. 

FOR SOMEWHAT SIMILAR REASONS, I WOULD NOT REACH THE QUESTIONS OF
CONFRONTATION AND CROSS-EXAMINATION WHICH ARE ALSO DEALT WITH IN PART V
OF THE OPINION. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

EACH OF THE 50 STATES HAS CREATED A SYSTEM OF JUVENILE OR FAMILY
COURTS, IN WHICH DISTINCTIVE RULES ARE EMPLOYED AND SPECIAL
CONSEQUENCES IMPOSED.  THE JURISDICTION OF THESE COURTS COMMONLY
EXTENDS BOTH TO CASES WHICH THE STATES HAVE WITHDRAWN FROM THE ORDINARY
PROCESSES OF CRIMINAL JUSTICE, AND TO CASES WHICH INVOLVE ACTS THAT, IF
PERFORMED BY AN ADULT, WOULD NOT BE PENALIZED AS CRIMINAL.  SUCH COURTS
ARE DENOMINATED CIVIL, NOT CRIMINAL, AND ARE CHARACTERISTICALLY SAID
NOT TO ADMINISTER CRIMINAL PENALTIES.  ONE CONSEQUENCE OF THESE
SYSTEMS, AT LEAST AS ARIZONA CONSTRUES ITS OWN, IS THAT CERTAIN OF THE
RIGHTS GUARANTEED TO CRIMINAL DEFENDANTS BY THE CONSTITUTION ARE
WITHHELD FROM JUVENILES.  THIS CASE BRINGS BEFORE THIS COURT FOR THE
FIRST TIME THE QUESTION OF WHAT LIMITATIONS THE CONSTITUTION PLACES
UPON THE OPERATION OF SUCH TRIBUNALS.  (FN1)  FOR REASONS WHICH FOLLOW,
I HAVE CONCLUDED THAT THE COURT HAS GONE TOO FAR IN SOME RESPECTS, AND
FALLEN SHORT IN OTHERS, IN ASSESSING THE PROCEDURAL REQUIREMENTS
DEMANDED BY THE FOURTEENTH AMENDMENT. 

                                  I. 

I MUST FIRST ACKNOWLEDGE THAT I AM UNABLE TO DETERMINE WITH ANY
CERTAINTY BY WHAT STANDARDS THE COURT DECIDES THAT ARIZONA'S JUVENILE
COURTS DO NOT SATISFY THE OBLIGATIONS OF DUE PROCESS.  THE COURT'S
PREMISE, ITSELF THE PRODUCT OF REASONING WHICH IS NOT DESCRIBED, IS
THAT THE "CONSTITUTIONAL AND THEORETICAL BASIS" OF STATE SYSTEMS OF
JUVENILE AND FAMILY COURTS IS "DEBATABLE"; IT BUTTRESSES THESE DOUBTS
BY MARSHALING A BODY OF OPINION WHICH SUGGESTS THAT THE ACCOMPLISHMENTS
OF THESE COURTS HAVE OFTEN FALLEN SHORT OF EXPECTATIONS.  (FN2)  THE
COURT DOES NOT INDICATE AT WHAT POINTS OR FOR WHAT PURPOSES SUCH VIEWS,
HELD EITHER BY IT OR BY OTHER OBSERVERS, MIGHT BE PERTINENT TO THE
PRESENT ISSUES.  ITS FAILURE TO PROVIDE ANY DISCERNIBLE STANDARD FOR
THE MEASUREMENT OF DUE PROCESS IN RELATION TO JUVENILE PROCEEDINGS
UNFORTUNATELY MIGHT BE UNDERSTOOD TO MEAN THAT THE COURT IS CONCERNED
PRINCIPALLY WITH THE WISDOM OF HAVING SUCH COURTS AT ALL. 

IF THIS IS THE SOURCE OF THE COURT'S DISSATISFACTION, I CANNOT SHARE
IT.  I SHOULD HAVE SUPPOSED THAT THE CONSTITUTIONALITY OF JUVENILE
COURTS WAS BEYOND PROPER QUESTION UNDER THE STANDARDS NOW EMPLOYED TO
ASSESS THE SUBSTANTIVE VALIDITY OF STATE LEGISLATION UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IT CAN SCARCELY BE DOUBTED
THAT IT IS WITHIN THE STATE'S COMPETENCE TO ADOPT MEASURES REASONABLY
CALCULATED TO MEET MORE EFFECTIVELY THE PERSISTENT PROBLEMS OF JUVENILE
DELINQUENCY; AS THE OPINION FOR THE COURT MAKES ABUNDANTLY PLAIN, THESE
ARE AMONG THE MOST VEXING AND OMINOUS OF THE CONCERNS WHICH NOW FACE
COMMUNITIES THROUGHOUT THE COUNTRY. 

THE PROPER ISSUE HERE IS, HOWEVER, NOT WHETHER THE STATE MAY
CONSITUTIONALLY TREAT JUVENILE OFFENDERS THROUGH A SYSTEM OF
SPECIALIZED COURTS, BUT WHETHER THE PROCEEDINGS IN ARIZONA'S JUVENILE
COURTS INCLUDE PROCEDURAL GUARANTEES WHICH SATISFY THE REQUIREMENTS OF
THE FOURTEENTH AMENDMENT.  AMONG THE FIRST PREMISES OF OUR
CONSTITUTIONAL SYSTEM IS THE OBLIGATION TO CONDUCT ANY PROCEEDING IN
WHICH AN INDIVIDUAL MAY BE DEPRIVED OF LIBERTY OR PROPERTY IN A FASHION
CONSISTENT WITH THE "TRADITIONS AND CONSCIENCE OF OUR PEOPLE."  SNYDER
V. MASSACHUSETTS, 291 U.S. 97, 105.  THE IMPORTANCE OF THESE PROCEDURAL
GUARANTEES IS DOUBLY INTENSIFIED HERE.  FIRST, MANY OF THE PROBLEMS
WITH WHICH ARIZONA IS CONCERNED ARE AMONG THOSE TRADITIONALLY CONFINED
TO THE PROCESSES OF CRIMINAL JUSTICE; THEIR DISPOSITION NECESSARILY
AFFECTS IN THE MOST DIRECT AND SUBSTANTIAL MANNER THE LIBERTY OF
INDIVIDUAL CITIZENS.  QUITE OBVIOUSLY, SYSTEMS OF SPECIALIZED PENAL
JUSTICE MIGHT PERMIT EROSION, OR EVEN EVASION, OF THE LIMITATIONS
PLACED BY THE CONSTITUTION UPON STATE CRIMINAL PROCEEDINGS.  SECOND, WE
MUST RECOGNIZE THAT THE CHARACTER AND CONSEQUENCES OF MANY JUVENILE
COURT PROCEEDINGS HAVE IN FACT CLOSELY RESEMBLED THOSE OF ORDINARY
CRIMINAL TRIALS.  NOTHING BEFORE US SUGGESTS THAT JUVENILE COURTS WERE
INTENDED AS A DEVICE TO ESCAPE CONSTITUTIONAL CONSTRAINTS, BUT I
ENTIRELY AGREE WITH THE COURT THAT WE ARE NONETHELESS OBLIGED TO
EXAMINE WITH CIRCUMSPECTION THE PROCEDURAL GUARANTEES THE STATE HAS
PROVIDED. 

THE CENTRAL ISSUE HERE, AND THE PRINCIPAL ONE UPON WHICH I AM DIVIDED
FROM THE COURT, IS THE METHOD BY WHICH THE PROCEDURAL REQUIREMENTS OF
DUE PROCESS SHOULD BE MEASURED.  IT MUST AT THE OUTSET BE EMPHASIZED
THAT THE PROTECTIONS NECESSARY HERE CANNOT BE DETERMINED BY RESORT TO
ANY CLASSIFICATION OF JUVENILE PROCEEDINGS EITHER AS CRIMINAL OR AS
CIVIL, WHETHER MADE BY THE STATE OR BY THIS COURT.  BOTH FORMULAE ARE
SIMPLY TOO IMPRECISE TO PERMIT REASONED ANALYSIS OF THESE DIFFICULT
CONSTITUTIONAL ISSUES.  THE COURT SHOULD INSTEAD MEASURE THE
REQUIREMENTS OF DUE PROCESS BY REFERENCE BOTH TO THE PROBLEMS WHICH
CONFRONT THE STATE AND TO THE ACTUAL CHARACTER OF THE PROCEDURAL SYSTEM
WHICH THE STATE HAS CREATED.  THE COURT HAS FOR SUCH PURPOSES CHIEFLY
EXAMINED THREE CONNECTED SOURCES: FIRST, THE "SETTLED USAGES AND MODES
OF PROCEEDING," MURRAY'S LESSEE V. HOBOKEN LAND & IMPROVEMENT CO., 18
HOW.  272, 277; SECOND, THE "FUNDAMENTAL PRINCIPLES OF LIBERTY AND
JUSTICE WHICH LIE AT THE BASE OF ALL OUR CIVIL AND POLITICAL
INSTITUTIONS," HEBERT V. LOUISIANA, 272 U.S. 312, 316; AND THIRD, THE
CHARACTER AND REQUIREMENTS OF THE CIRCUMSTANCES PRESENTED IN EACH
SITUATION.  FCC V. WJR, 337 U.S. 265, 277; YAKUS V. UNITED STATES, 321
U.S. 414.  SEE, FURTHER, MY DISSENTING OPINION IN POE V. ULLMAN, 367
U.S. 497, 522, AND COMPARE MY OPINION CONCURRING IN THE RESULT IN
POINTER V. TEXAS, 380 U.S. 400, 408.  EACH OF THESE FACTORS IS RELEVANT
TO THE ISSUES HERE, BUT IT IS THE LAST WHICH DEMANDS PARTICULAR
EXAMINATION. 

THE COURT HAS REPEATEDLY EMPHASIZED THAT DETERMINATION OF THE
CONSTITUTIONALITY REQUIRED PROCEDURAL SAFEGUARDS IN ANY SITUATION
REQUIRES RECOGNITION BOTH OF THE "INTERESTS AFFECTED" AND OF THE
"CIRCUMSTANCES INVOLVED."  FCC V. WJR, SUPRA, AT 277.  IN PARTICULAR, A
"COMPELLING PUBLIC INTEREST" MUST, UNDER OUR CASES, BE TAKEN FULLY INTO
ACCOUNT IN ASSESSING THE VALIDITY UNDER THE DUE PROCESS CLAUSES OF
STATE OR FEDERAL LEGISLATION AND ITS APPLICATION.  SEE, E.G., YAKUS V.
UNITED STATES, SUPRA, AT 442; BOWLES V. WILLINGHAM, 321 U.S. 503, 520;
MILLER V. SCHOENE, 276 U.S. 272, 279.  SUCH INTERESTS WOULD NEVER
WARRANT ARBITRARINESS OR THE DIMINUTION OF ANY SPECIFICALLY ASSURED
CONSTITUTIONAL RIGHT, HOME BLDG. & LOAN ASSN. V. BLAISDELL, 290 U.S.
398, 426, BUT THEY ARE AN ESSENTIAL ELEMENT OF THE CONTEXT THROUGH
WHICH THE LEGISLATION AND PROCEEDINGS UNDER IT MUST BE READ AND
EVALUATED. 

NO MORE EVIDENCE OF THE IMPORTANCE OF THE PUBLIC INTERESTS AT STAKE
HERE IS REQUIRED THAN THAT FURNISHED BY THE OPINION OF THE COURT; IT
INDICATES THAT "SOME 601,000 CHILDREN UNDER 18, OR 2% OF ALL CHILDREN
BETWEEN 10 AND 17, CAME BEFORE JUVENILE COURTS" IN 1965, AND THAT
"ABOUT ONE-FIFTH OF ALL ARRESTS FOR SERIOUS CRIMES" IN 1965 WERE OF
JUVENILES.  THE COURT ADDS THAT THE RATE OF JUVENILE CRIME IS STEADILY
RISING.  ALL THIS, AS THE COURT SUGGESTS, INDICATES THE IMPORTANCE OF
THESE DUE PROCESS ISSUES, BUT IT MIRRORS NO LESS VIVIDLY THAT STATE
AUTHORITIES ARE CONFRONTED BY FORMIDABLE AND IMMEDIATE PROBLEMS
INVOLVING THE MOST FUNDAMENTAL SOCIAL VALUES.  THE STATE LEGISLATURES
HAVE DETERMINED THAT THE MOST HOPEFUL SOLUTION FOR THESE PROBLEMS IS TO
BE FOUND IN SPECIALIZED COURTS, ORGANIZED UNDER THEIR OWN RULES AND
IMPOSING DISTINCTIVE CONSEQUENCES.  THE TERMS AND LIMITATIONS OF THESE
SYSTEMS ARE NOT IDENTICAL, NOR ARE THE PROCEDURAL ARRANGEMENTS WHICH
THEY INCLUDE, BUT THE STATES ARE UNIFORM IN THEIR INSISTENCE THAT THE
ORDINARY PROCESSES OF CRIMINAL JUSTICE ARE INAPPROPRIATE, AND THAT
RELATIVELY INFORMAL PROCEEDINGS, DEDICATED TO PREMISES AND PURPOSES
ONLY IMPERFECTLY REFLECTED IN THE CRIMINAL LAW, ARE INSTEAD NECESSARY. 

IT IS WELL SETTLED THAT THE COURT MUST GIVE THE WIDEST DEFERENCE TO
LEGISLATIVE JUDGMENTS THAT CONCERN THE CHARACTER AND URGENCY OF THE
PROBLEMS WITH WHICH THE STATE IS CONFRONTED.  LEGISLATURES ARE, AS THIS
COURT HAS OFTEN ACKNOWLEDGED, THE "MAIN GUARDIAN" OF THE PUBLIC
INTEREST, AND, WITHIN THEIR CONSTITUTIONAL COMPETENCE, THEIR
UNDERSTANDING OF THAT INTEREST MUST BE ACCEPTED AS "WELL-NIGH"
CONCLUSIVE.  BERMAN V. PARKER, 348 U.S. 26, 32.  THIS PRINCIPLE DOES
NOT, HOWEVER, REACH ALL THE QUESTIONS ESSENTIAL TO THE RESOLUTION OF
THIS CASE.  THE LEGISLATIVE JUDGMENTS AT ISSUE HERE EMBRACE ASSESSMENTS
OF THE NECESSITY AND WISDOM OF PROCEDURAL GUARANTEES; THESE ARE
QUESTIONS WHICH THE CONSTITUTION HAS ENTRUSTED AT LEAST IN PART TO
COURTS, AND UPON WHICH COURTS HAVE BEEN UNDERSTOOD TO POSSESS
PARTICULAR COMPETENCE.  THE FUNDAMENTAL ISSUE HERE IS, THEREFORE, IN
WHAT MEASURE AND FASHION THE COURT MUST DEFER TO LEGISLATIVE
DETERMINATIONS WHICH ENCOMPASS CONSTITUTIONAL ISSUES OF PROCEDURAL
PROTECTION. 

IT SUFFICES FOR PRESENT PURPOSES TO SUMMARIZE THE FACTORS WHICH I
BELIEVE TO BE PERTINENT.  IT MUST FIRST BE EMPHASIZED THAT THE
DEFERENCE GIVEN TO LEGISLATORS UPON SUBSTANTIVE ISSUES MUST
REALISTICALLY EXTEND IN PART TO ANCILLARY PROCEDURAL QUESTIONS. 
PROCEDURE AT ONCE REFLECTS AND CREATES SUBSTANTIVE RIGHTS, AND EVERY
EFFORT OF COURTS SINCE THE BEGINNINGS OF THE COMMON LAW TO SEPARATE THE
TWO HAS PROVED ESSENTIALLY FUTILE.  THE DISTINCTION BETWEEN THEM IS
PARTICULARLY INADEQUATE HERE, WHERE THE LEGISLATURE'S SUBSTANTIVE
PREFERENCES DIRECTLY AND UNAVOIDABLY REQUIRE JUDGMENTS ABOUT PROCEDURAL
ISSUES.  THE PROCEDURAL FRAMEWORK IS HERE A PRINCIPAL ELEMENT OF THE
SUBSTANTIVE LEGISLATIVE SYSTEM; MEANINGFUL DEFERENCE TO THE LATTER MUST
INCLUDE A PORTION OF DEFERENCE TO THE FORMER.  THE SUBSTANTIVE
PROCEDURAL DICHOTOMY IS, NONETHELESS, AN INDISPENSABLE TOOL OF
ANALYSIS, FOR IT STEMS FROM FUNDAMENTAL LIMITATIONS UPON JUDICIAL
AUTHORITY UNDER THE CONSTITUTION.  ITS PREMISE IS ULTIMATELY THAT
COURTS MAY NOT SUBSTITUTE FOR THE JUDGMENTS OF LEGISLATORS THEIR OWN
UNDERSTANDING OF THE PUBLIC WELFARE, BUT MUST INSTEAD CONCERN
THEMSELVES WITH THE VALIDITY UNDER THE CONSTITUTION OF THE METHODS
WHICH THE LEGISLATURE HAS SELECTED.  SEE, E.G., MCLEAN V. ARKANSAS, 211
U.S. 539, 547; OLSEN V. NEBRASKA, 313 U.S. 236, 246-247.  THE
CONSTITUTION HAS IN THIS MANNER CREATED FOR COURTS AND LEGISLATORS
AREAS OF PRIMARY RESPONSIBILITY WHICH ARE ESSENTIALLY CONGRUENT TO
THEIR AREAS OF SPECIAL COMPETENCE.  COURTS ARE THUS OBLIGED BOTH BY
CONSTITUTIONAL COMMAND AND BY THEIR DISTINCTIVE FUNCTIONS TO BEAR
PARTICULAR RESPONSIBILITY FOR THE MEASUREMENT OF PROCEDURAL DUE
PROCESS.  THESE FACTORS IN COMBINATION SUGGEST THAT LEGISLATURES MAY
PROPERLY EXPECT ONLY A CAUTIOUS DEFERENCE FOR THEIR PROCEDURAL
JUDGMENTS, BUT THAT, CONVERSELY, COURTS MUST EXERCISE THEIR SPECIAL
RESPONSIBILITY FOR PROCEDURAL GUARANTEES WITH CARE TO PERMIT AMPLE
SCOPE FOR ACHIEVING THE PURPOSES OF LEGISLATIVE PROGRAMS.  PLAINLY,
COURTS CAN EXERCISE SUCH CARE ONLY IF THEY HAVE IN EACH CASE FIRST
STUDIED THOROUGHLY THE OBJECTIVES AND IMPLEMENTATION OF THE PROGRAM AT
STAKE; IF, UPON COMPLETION OF THOSE STUDIES, THE EFFECT OF EXTENSIVE
PROCEDURAL RESTRICTIONS UPON VALID LEGISLATIVE PURPOSES CANNOT BE
ASSESSED WITH REASONABLE CERTAINTY, THE COURT SHOULD NECESSARILY
PROCEED WITH RESTRAINT. 

THE FOREGOING CONSIDERATIONS, WHICH I BELIEVE TO BE FAIR
DISTILLATIONS OF RELEVANT JUDICIAL HISTORY, SUGGEST THREE CRITERIA BY
WHICH THE PROCEDURAL REQUIREMENTS OF DUE PROCESS SHOULD BE MEASURED
HERE:  FIRST, NO MORE RESTRICTIONS SHOULD BE IMPOSED THAN ARE
IMPERATIVE TO ASSURE THE PROCEEDINGS' FUNDAMENTAL FAIRNESS; SECOND, THE
RESTRICTIONS WHICH ARE IMPOSED SHOULD BE THOSE WHICH PRESERVE, SO FAR
AS POSSIBLE, THE ESSENTIAL ELEMENTS OF THE STATE'S PURPOSE; AND
FINALLY, RESTRICTIONS SHOULD BE CHOSEN WHICH WILL LATER PERMIT THE
ORDERLY SELECTION OF ANY ADDITIONAL PROTECTIONS WHICH MAY ULTIMATELY
PROVE NECESSARY.  IN THIS WAY, THE COURT MAY GUARANTEE THE FUNDAMENTAL
FAIRNESS OF THE PROCEEDING, AND YET PERMIT THE STATE TO CONTINUE
DEVELOPMENT OF AN EFFECTIVE RESPONSE TO THE PROBLEMS OF JUVENILE
CRIME. 

               II. 

MEASURED BY THESE CRITERIA, ONLY THREE PROCEDURAL REQUIREMENTS
WHOULD, IN MY OPINION, NOW BE DEEMED REQUIRED OF STATE JUVENILE COURTS
BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT: FIRST, TIMELY
NOTICE MUST BE PROVIDED TO PARENTS AND CHILDREN OF THE NATURE AND TERMS
OF ANY JUVENILE COURT PROCEEDING IN WHICH A DETERMINATION AFFECTING
THEIR RIGHTS OR INTERESTS MAY BE MADE; SECOND, UNEQUIVOCAL AND TIMELY
NOTICE MUST BE GIVEN THAT COUNSEL MAY APPEAR IN ANY SUCH PROCEEDING IN
BEHALF OF THE CHILD AND ITS PARENTS, AND THAT IN CASES IN WHICH THE
CHILD MAY BE CONFINED IN AN INSTITUTION, COUNSEL MAY, IN CIRCUMSTANCES
OF INDIGENCY, BE APPOINTED FOR THEM; AND THIRD, THE COURT MUST MAINTAIN
A WRITTEN RECORD, OR ITS EQUIVALENT, ADEQUATE TO PERMIT EFFECTIVE
REVIEW ON APPEAL OR IN COLLATERAL PROCEEDINGS.  THESE REQUIREMENTS
WOULD GUARANTEE TO JUVENILES THE TOOLS WITH WHICH THEIR RIGHTS COULD BE
FULLY VINDICATED, AND YET PERMIT THE STATES TO PURSUE WITHOUT
UNNECESSARY HINDRANCE THE PURPOSES WHICH THEY BELIEVE IMPERATIVE IN
THIS FIELD.  FURTHER, THEIR IMPOSITION NOW WOULD LATER PERMIT MORE
INTELLIGENT ASSESSMENT OF THE NECESSITY UNDER THE FOURTEENTH AMENDMENT
OF ADDITIONAL REQUIREMENTS, BY CREATING SUITABLE RECORDS FROM WHICH THE
CHARACTER AND DEFICIENCIES OF JUVENILE PROCEEDINGS COULD BE ACCURATELY
JUDGED.  I TURN TO CONSIDER EACH OF THESE THREE REQUIREMENTS. 

THE COURT HAS CONSISTENTLY MADE PLAIN THAT ADEQUATE AND TIMELY NOTICE
IS THE FULCRUM OF DUE PROCESS, WHATEVER THE PURPOSES OF THE
PROCEEDING.  SEE, E.G., ROLLER V. HOLLY, 176 U.S. 398, 409; COE V.
ARMOUR FERTILIZER WORKS, 237 U.S. 413, 424.  NOTICE IS ORDINARILY THE
PREREQUISITE TO EFFECTIVE ASSERTION OF ANY CONSTITUTIONAL OR OTHER
RIGHTS; WITHOUT IT, VINDICATION OF THOSE RIGHTS MUST BE ESSENTIALLY
FORTUITOUS.  SO FUNDAMENTAL A PROTECTION CAN NEITHER BE SPARED HERE NOR
LEFT TO THE "FAVOR OR GRACE" OF STATE AUTHORITIES.  CENTRAL OF GEORGIA
RY. V. WRIGHT, 207 U.S. 127, 138; COE V. ARMOUR FERTILIZER WORKS,
SUPRA, AT 425. 

PROVISION OF COUNSEL AND OF A RECORD, LIKE ADEQUATE NOTICE, WOULD
PERMIT THE JUVENILE TO ASSERT VERY MUCH MORE EFFECTIVELY HIS RIGHTS AND
DEFENSES, BOTH IN THE JUVENILE PROCEEDINGS AND UPON DIRECT OR
COLLATERAL REVIEW.  THE COURT HAS FREQUENTLY EMPHASIZED THEIR
IMPORTANCE IN PROCEEDINGS IN WHICH AN INDIVIDUAL MAY BE DEPRIVED OF HIS
LIBERTY, SEE GIDEON V. WAINWRIGHT, 372 U.S. 335, AND GRIFFIN V.
ILLINOIS, 351 U.S. 12; THIS REASONING MUST INCLUDE WITH SPECIAL FORCE
THOSE WHO ARE COMMONLY INEXPERIENCED AND IMMATURE.  SEE POWELL V.
ALABAMA, 287  U.S. 45.  THE FACTS OF THIS CASE ILLUSTRATE POIGNANTLY
THE DIFFICULTIES OF REVIEW WITHOUT EITHER AN ADEQUATE RECORD OR THE
PARTICIPATION OF COUNSEL IN THE PROCEEDING'S INITIAL STAGES.  AT THE
SAME TIME, THESE REQUIREMENTS SHOULD NOT CAUSE ANY SUBSTANTIAL
MODIFICATION IN THE CHARACTER OF JUVENILE COURT PROCEEDINGS; COUNSEL,
ALTHOUGH NOW PRESENT IN ONLY A SMALL PERCENTAGE OF JUVENILE CASES, HAVE
APPARENTLY ALREADY APPEARED WITHOUT INCIDENT IN VIRTUALLY ALL JUVENILE
COURTS; (FN3)  AND THE MAINTENANCE OF A RECORD SHOULD NOT APPRECIABLY
ALTER THE CONDUCT OF THESE PROCEEDINGS. 

THE QUESTION REMAINS WHETHER CERTAIN ADDITIONAL REQUIREMENTS, AMONG
THEM THE PRIVILEGE AGAINST SELF-INCRIMINATION, CONFRONTATION, AND CROSS
EXAMINATION, MUST NOW, AS THE COURT HOLDS, ALSO BE IMPOSED.  I SHARE IN
PART THE VIEWS EXPRESSED IN MY BROTHER WHITE'S CONCURRING OPINION, BUT
BELIEVE THAT THERE ARE OTHER, AND MORE DEEP-SEATED, REASONS TO DEFER,
AT LEAST FOR THE PRESENT, THE IMPOSITION OF SUCH REQUIREMENTS. 

INITIALLY, I MUST VOUCHSAFE THAT I CANNOT DETERMINE WITH CERTAINTY
THE REASONING BY WHICH THE COURT CONCLUDES THAT THESE FURTHER
REQUIREMENTS ARE NOW IMPERATIVE.  THE COURT BEGINS FROM THE PREMISE, TO
WHICH IT GIVES FORCE AT SEVERAL POINTS, THAT JUVENILE COURTS NEED NOT
SATISFY "ALL OF THE REQUIREMENTS OF A CRIMINAL TRIAL."  IT THEREFORE
SCARCELY SUFFICES TO EXPLAIN THE SELECTION OF THESE PARTICULAR
PROCEDURAL REQUIREMENTS FOR THE COURT TO DECLARE THAT JUVENILE COURT
PROCEEDINGS ARE ESSENTIALLY CRIMINAL, AND THEREUPON TO RECALL THAT
THESE ARE REQUISITES FOR A CRIMINAL TRIAL.  NOR DOES THE COURT'S
VOUCHER OF "AUTHORITATIVE OPINION," WHICH CONSISTS OF FOUR
EXTRAORDINARY JUVENILE CASES, CONTRIBUTE MATERIALLY TO THE SOLUTION OF
THESE ISSUES.  THE COURT HAS, EVEN UNDER ITS OWN PREMISES, ASKED THE
WRONG QUESTIONS:  THE PROBLEM HERE IS TO DETERMINE WHAT FORMS OF
PROCEDURAL PROTECTION ARE NECESSARY TO GUARANTEE THE FUNDAMENTAL
FAIRNESS OF JUVENILE PROCEEDINGS, AND NOT WHICH OF THE PROCEDURES NOW
EMPLOYED IN CRIMINAL TRIALS SHOULD BE TRANSPLANTED INTACT TO
PROCEEDINGS IN THESE SPECIALIZED COURTS. 

IN MY VIEW, THE COURT SHOULD APPROACH THIS QUESTION IN TERMS OF THE
CRITERIA, DESCRIBED ABOVE, WHICH EMERGE FROM THE HISTORY OF DUE PROCESS
ADJUDICATION.  MEASURED BY THEM, THERE ARE COMPELLING REASONS AT LEAST
TO DEFER IMPOSITION OF THESE ADDITIONAL REQUIREMENTS.  FIRST, QUITE
UNLIKE NOTICE, COUNSEL, AND A RECORD, THESE REQUIREMENTS MIGHT
RADICALLY ALTER THE CHARACTER OF JUVENILE COURT PROCEEDINGS.  THE
EVIDENCE FROM WHICH THE COURT REASONS THAT THEY WOULD NOT IS
INCONCLUSIVE,  (FN4) AND OTHER AVAILABLE EVIDENCE SUGGESTS THAT THEY
VERY LIKELY WOULD.  (FN5)  AT THE LEAST, IT IS PLAIN THAT THESE
ADDITIONAL REQUIREMENTS WOULD CONTRIBUTE MATERIALLY TO THE CREATION IN
THESE PROCEEDINGS OF THE ATMOSPHERE OF AN ORDINARY CRIMINAL TRIAL, AND
WOULD, EVEN IF THEY DO NO MORE, THEREBY FRUSTRATE A CENTRAL PURPOSE OF
THESE SPECIALIZED COURTS.  FURTHER, THESE ARE RESTRICTIONS INTENDED TO
CONFORM TO THE DEMANDS OF AN INTENSELY ADVERSARY SYSTEM OF CRIMINAL
JUSTICE; THE BROAD PURPOSES WHICH THEY REPRESENT MIGHT BE SERVED IN
JUVENILE COURTS WITH EQUAL EFFECTIVENESS BY PROCEDURAL DEVICES MORE
CONSISTENT WITH THE PREMISES OF PROCEEDINGS IN THOSE COURTS.  AS THE
COURT APPARENTLY ACKNOWLEDGES, THE HAZARDS OF SELF-ACCUSATION, FOR
EXAMPLE, MIGHT BE AVOIDED IN JUVENILE PROCEEDINGS WITHOUT THE
IMPOSITION OF ALL THE REQUIREMENTS AND LIMITATIONS WHICH SURROUND THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  THE GUARANTEE OF ADEQUATE
NOTICE, COUNSEL, AND A RECORD WOULD CREATE CONDITIONS IN WHICH SUITABLE
ALTERNATIVE PROCEDURES COULD BE DEVISED; BUT, UNFORTUNATELY, THE
COURT'S HASTE TO IMPOSE RESTRICTIONS TAKEN INTACT FROM CRIMINAL
PROCEDURE MAY WELL SERIOUSLY HAMPER THE DEVELOPMENT OF SUCH
ALTERNATIVES.  SURELY THIS ILLUSTRATES THAT PRUDENCE AND THE PRINCIPLES
OF THE FOURTEENTH AMENDMENT ALIKE REQUIRE THAT THE COURT SHOULD NOW
IMPOSE NO MORE PROCEDURAL RESTRICTIONS THAN ARE IMPERATIVE TO ASSURE
FUNDAMENTAL FAIRNESS, AND THAT THE STATES SHOULD INSTEAD BE PERMITTED
ADDITIONAL OPPORTUNITIES TO DEVELOP WITHOUT UNNECESSARY HINDRANCE THEIR
SYSTEMS OF JUVENILE COURTS. 

I FIND CONFIRMATION FOR THESE VIEWS IN TWO ANCILLARY CONSIDERATIONS. 
FIRST, IT IS CLEAR THAT AN UNCERTAIN, BUT VERY SUBSTANTIAL NUMBER OF
THE CASES BROUGHT TO JUVENILE COURTS INVOLVE CHILDREN WHO ARE NOT IN
ANY SENSE GUILTY OF CRIMINAL MISCONDUCT.  MANY OF THESE CHILDREN HAVE
SIMPLY THE MISFORTUNE TO BE IN SOME MANNER DISTRESSED; OTHERS HAVE
ENGAGED IN CONDUCT, SUCH AS TRUENCY, WHICH IS PLAINLY NOT CRIMINAL. 
(FN6)  EFFORTS ARE NOW BEING MADE TO DEVELOP EFFECTIVE, AND ENTIRELY
NONCRIMINAL, METHODS OF TREATMENT FOR THESE CHILDREN.  (FN7)  IN SUCH
CASES, THE STATE AUTHORITIES ARE IN THE MOST LITERAL SENSE ACTING IN
LOCO PARENTIS; THEY ARE, BY ANY STANDARD, CONCERNED WITH THE CHILD'S
PROTECTION, AND NOT WITH HIS PUNISHMENT.  I DO NOT QUESTION THAT THE
METHODS EMPLOYED IN SUCH CASES MUST BE CONSISTENT WITH THE
CONSTITUTIONAL OBLIGATION TO ACT IN ACCORDANCE WITH DUE PROCESS, BUT
CERTAINLY THE FOURTEENTH AMENDMENT DOES NOT DEMAND THAT THEY BE
CONSTRICTED BY THE PROCEDURAL GUARANTEES DEVISED FOR ORDINARY CRIMINAL
PROSECUTIONS.  CF. MINNESOTA EX REL. PEARSON V. PROBATE COURT, 309 U.S.
270.  IT MUST BE REMEMBERED THAT THE VARIOUS CLASSIFICATIONS OF
JUVENILE COURT PROCEEDINGS ARE, AS THE VAGARIES OF THE AVAILABLE
STATISTICS ILLUSTRATE, OFTEN ARBITRARY OR AMBIGUOUS; IT WOULD THEREFORE
BE IMPRUDENT, AT THE LEAST, TO BUILD UPON THESE CLASSIFICATIONS RIGID
SYSTEMS OF PROCEDURAL REQUIREMENTS WHICH WOULD BE APPLICABLE, OR NOT,
IN ACCORDANCE WITH THE DESCRIPTIVE LABEL GIVEN BY THE STATE TO THE
PROCEEDING; IN THIS WAY THE COURT COULD AVOID IMPOSING UNNECESSARILY
RIGID RESTRICTIONS, AND YET ESCAPE DEPENDENCE UPON CLASSIFICATIONS
WHICH MAY OFTEN PROVE TO BE ILLUSORY.  FURTHER, THE PROVISION OF
NOTICE, COUNSEL, AND A RECORD WOULD PERMIT ORDERLY EFFORTS TO DETERMINE
LATER WHETHER MORE SATISFACTORY CLASSIFICATIONS CAN BE DEVISED, AND IF
THEY CAN, WHETHER ADDITIONAL PROCEDURAL REQUIREMENTS ARE NECESSARY FOR
THEM UNDER THE FOURTEENTH AMENDMENT. 

SECOND, IT SHOULD NOT BE FORGOTTEN THAT JUVENILE CRIME AND JUVENILE
COURTS ARE BOTH NOW UNDER EARNEST STUDY THROUGHOUT THE COUNTRY.  I VERY
MUCH FEAR THAT THIS COURT, BY IMPOSING THESE RIGID PROCEDURAL
REQUIREMENTS, MAY INADVERTENTLY HAVE SERVED TO DISCOURAGE THESE EFFORTS
TO FIND MORE SATISFACTORY SOLUTIONS FOR THE PROBLEMS OF JUVENILE CRIME,
AND MAY THUS NOW HAMPER ENLIGHTENED DEVELOPMENT OF THE SYSTEMS OF
JUVENILE COURTS.  IT IS APPROPRIATE TO RECALL THAT THE FOURTEENTH
AMENDMENT DOES NOT COMPEL THE LAW TO REMAIN PASSIVE IN THE MIDST OF
CHANGE; TO DEMAND OTHERWISE DENIES "EVERY QUALITY OF THE LAW BUT ITS
AGE."  HURTADO V. CALIFORNIA, 110 U.S. 516, 529. 

                               III. 

FINALLY, I TURN TO ASSESS THE VALIDITY OF THIS JUVENILE COURT
PROCEEDING UNDER THE CRITERIA DISCUSSED IN THIS OPINION.  MEASURED BY
THEM, THE JUDGMENT BELOW MUST, IN MY OPINION, FALL.  GERALD GAULT AND
HIS PARENTS WERE NOT PROVIDED ADEQUATE NOTICE OF THE TERMS AND PURPOSES
OF THE PROCEEDINGS IN WHICH HE WAS ADJUDGED DELINQUENT; THEY WERE NOT
ADVISED OF THEIR RIGHTS TO BE REPRESENTED BY COUNSEL; AND NO RECORD IN
ANY FORM WAS MAINTAINED OF THE PROCEEDINGS.  IT FOLLOWS, FOR THE
REASONS GIVEN IN THIS OPINION, THAT GERALD GAULT WAS DEPRIVED OF HIS
LIBERTY WITHOUT DUE PROCESS OF LAW, AND I THEREFORE CONCUR IN THE
JUDGMENT OF THE COURT. 

FN1  KENT V. UNITED STATES, 383 U.S. 541, DECIDED AT THE 1965 TERM,
DID NOT PURPORT TO REST ON CONSTITUTIONAL GROUNDS. 

FN2  IT IS APPROPRIATE TO OBSERVE THAT, WHATEVER THE RELEVANCE THE
COURT MAY SUPPOSE THAT THIS CRITICISM HAS TO PRESENT ISSUES, MANY OF
THE CRITICS HAVE ASSERTED THAT THE DEFICIENCIES OF JUVENILE COURTS HAVE
STEMMED CHIEFLY FROM THE INADEQUACY OF THE PERSONNEL AND RESOURCES
AVAILABLE TO THOSE COURTS.  SEE, E.G., PAULSEN, KENT V. UNITED STATES:
THE CONSTITUTIONAL CONTEXT OF JUVENILE CASES, 1966 SUP. CT. REV. 167,
191-192; HANDLER, THE JUVENILE COURT AND THE ADVERSARY SYSTEM:
PROBLEMS OF FUNCTION AND FORM, 1965 WIS.  L. REV. 7, 46. 

FN3  THE STATISTICAL EVIDENCE HERE IS INCOMPLETE, BUT SEE GENERALLY
SKOLER & TENNEY, ATTORNEY REPRESENTATION IN JUVENILE COURT, 4 J. FAM. 
LAW 77.  THEY INDICATE THAT SOME 91% OF THE JUVENILE COURT JUDGES WHOM
THEY POLLED FAVORED REPRESENTATION BY COUNSEL IN THEIR COURTS.  ID., AT
88. 

FN4  INDEED, MY BROTHER BLACK CANDIDLY RECOGNIZED THAT SUCH IS APT TO
BE THE EFFECT OF TODAY'S DECISION, ANTE, P. 60.  THE COURT ITSELF IS
CONTENT MERELY TO RELY UPON INAPPOSITE LANGUAGE FROM THE
RECOMMENDATIONS OF THE CHILDREN'S BUREAU, PLUS THE TERMS OF A SINGLE
STATUTE.    FN5  THE MOST COGENT EVIDENCE OF COURSE CONSISTS OF THE
STEADY REJECTION OF THESE REQUIREMENTS BY STATE LEGISLATURES AND
COURTS.  THE WIDE DISAGREEMENT AND UNCERTAINTY UPON THIS QUESTION ARE
ALSO REFLECTED IN PAULSEN, KENT V. UNITED STATES:  THE CONSTITUTIONAL
CONTEXT OF JUVENILE CASES, 1966 SUP. CT. REV. 167, 186, 191.  SEE ALSO
PAULSEN, FAIRNESS TO THE JUVENILE OFFENDER, 41 MINN. L. REV. 547, 561
562; MCLEAN, AN ANSWER TO THE CHALLENGE OF KENT, 53 A.B.A.J. 456, 457;
ALEXANDER, CONSTITUTIONAL RIGHTS IN JUVENILE COURT, 46 A.B.A.J. 1206;
SHEARS, LEGAL PROBLEMS PECULIAR TO CHILDREN'S COURTS, 48 A.B.A.J. 719;
SILER, THE NEED FOR DEFENSE COUNSEL IN THE JUVENILE COURT, 11 CRIME &
DELIN.  45, 57-58.  COMPARE HANDLER, THE JUVENILE COURT AND THE
ADVERSARY SYSTEM:  PROBLEMS OF FUNCTION AND FORM, 1965 WIS. L. REV. 7,
32. 

FN6  ESTIMATES OF THE NUMBER OF CHILDREN IN THIS SITUATION BROUGHT
BEFORE JUVENILE COURTS RANGE FROM 26% TO SOME 48%; VARIATION SEEMS
CHIEFLY A PRODUCT BOTH OF THE INADEQUACY OF RECORDS AND OF THE
DIFFICULTY OF CATEGORIZING PRECISELY THE CONDUCT WITH WHICH JUVENILES
ARE CHARGED.  SEE GENERALLY SHERIDAN, JUVENILES WHO COMMIT NONCRIMINAL
ACTS:  WHY TREAT IN A CORRECTIONAL SYSTEM?  31 FED. PROBABTION 26, 27. 
BY ANY STANDARD, THE NUMBER OF JUVENILES INVOLVED IS "CONSIDERABLE." 
IBID. 

FN7  ID., AT 28-30. 

MR. JUSTICE STEWART, DISSENTING. 

THE COURT TODAY USES AN OBSCURE ARIZONA CASE AS A VEHICLE TO IMPOSE
UPON THOUSANDS OF JUVENILE COURTS THROUGHOUT THE NATION RESTRICTIONS
THAT THE CONSTITUTION MADE APPLICABLE TO ADVERSARY CRIMINAL TRIALS. 
(FN1)  I BELIEVE THE COURT'S DECISION IS WHOLLY UNSOUND AS A MATTER OF
JUDICIAL POLICY. 

JUVENILE PROCEEDINGS ARE NOT CRIMINAL TRIALS.  THEY ARE NOT CIVIL
TRIALS.  THEY ARE SIMPLY NOT ADVERSARY PROCEEDINGS.  WHETHER TREATING
WITH A DELINQUENT CHILD, A NEGLECTED CHILD, A DEFECTIVE CHILD, OR A
DEPENDENT CHILD, A JUVENILE PROCEEDING'S WHOLE PURPOSE AND MISSION IS
THE VERY OPPOSITE OF THE MISSION AND PURPOSE OF A PROSECUTION IN A
CRIMINAL COURT.  THE OBJECT OF THE ONE IS CORRECTION OF A CONDITION. 
THE OBJECT OF THE OTHER IS CONVICTION AND PUNISHMENT FOR A CRIMINAL
ACT. 

IN THE LAST 70 YEARS MANY DEDICATED MEN AND WOMEN HAVE DEVOTED THEIR
PROFESSIONAL LIVES TO THE ENLIGHTENED TASK OF BRINGING US OUT OF THE
DARK WORLD OF CHARLES DICKENS IN MEETING OUR RESPONSIBILITIES TO THE
CHILD IN OUR SOCIETY.  THE RESULT HAS BEEN THE CREATION IN THIS CENTURY
OF A SYSTEM OF JUVENILE AND FAMILY COURTS IN EACH OF THE 50 STATES. 
THERE CAN BE NO DENYING THAT IN MANY AREAS THE PERFORMANCE OF THESE
AGENCIES HAS FALLEN DISAPPOINTINGLY SHORT OF THE HOPES AND DREAMS OF
THE COURAGEOUS PIONEERS WHO FIRST CONCEIVED THEM.  FOR A VARIETY OF
REASONS, THE REALITY HAS SOMETIMES NOT EVEN APPROACHED THE IDEAL, AND
MUCH REMAINS TO BE ACCOMPLISHED IN THE ADMINISTRATION OF PUBLIC
JUVENILE AND FAMILY AGENCIES - IN PERSONNEL, IN PLANNING, IN FINANCING,
PERHAPS IN THE FORMULATION OF WHOLLY NEW APPROACHES. 

I POSSESS NEITHER THE SPECIALIZED EXPERIENCE NOR THE EXPERT KNOWLEDGE
TO PREDICT WITH ANY CERTAINTY WHERE MAY LIE THE BRIGHTEST HOPE FOR
PROGRESS IN DEALING WITH THE SERIOUS PROBLEMS OF JUVENILE DELINQUENCY. 
BUT I AM CERTAIN THAT THE ANSWER DOES NOT LIE IN THE COURT'S OPINION IN
THIS CASE, WHICH SERVES TO CONVERT A JUVENILE PROCEEDING INTO A
CRIMINAL PROSECUTION. 

THE INFLEXIBLE RESTRICTIONS THAT THE CONSTITUTION SO WISELY MADE
APPLICABLE TO ADVERSARY CRIMINAL TRIALS HAVE NO INEVITABLE PLACE IN THE
PROCEEDINGS OF THOSE PUBLIC SOCIAL AGENCIES KNOWN AS JUVENILE OR FAMILY
COURTS.  AND TO IMPOSE THE COURT'S LONG CATALOG OF REQUIREMENTS UPON
JUVENILE PROCEEDINGS IN EVERY AREA OF THE COUNTRY IS TO INVITE A LONG
STEP BACKWARD INTO THE NINETEENTH CENTURY.  IN THAT ERA THERE WERE NO
JUVENILE PROCEEDINGS, AND A CHILD WAS TRIED IN A CONVENTIONAL CRIMINAL
COURT WITH ALL THE TRAPPINGS OF A CONVENTIONAL CRIMINAL TRIAL.  SO IT
WAS THAT A 12-YEAR-OLD BOY NAMED JAMES GUILD WAS TRIED IN NEW JERSEY
FOR KILLING CATHARINE BEAKES.  A JURY FOUND HIM GUILTY OF MURDER, AND
HE WAS SENTENCED TO DEATH BY HANGING.  THE SENTENCE WAS EXECUTED.  IT
WAS ALL VERY CONSTITUTIONAL.  (FN2) 

A STATE IN ALL ITS DEALINGS MUST, OF COURSE, ACCORD EVERY PERSON DUE
PROCESS OF LAW.  AND DUE PROCESS MAY REQUIRE THAT SOME OF THE SAME
RESTRICTIONS WHICH THE CONSTITUTION HAS PLACED UPON CRIMINAL TRIALS
MUST BE IMPOSED UPON JUVENILE PROCEEDINGS.  FOR EXAMPLE, I SUPPOSE THAT
ALL WOULD AGREE THAT A BRUTALLY COERCED CONFESSION COULD NOT
CONSTITUTIONALLY BE CONSIDERED IN A JUVENILE COURT HEARING.  BUT IT
SURELY DOES NOT FOLLOW THAT THE TESTIMONIAL PRIVILEGE AGAINST SELF
INCRIMINATION IS APPLICABLE IN ALL JUVENILE PROCEEDINGS.  (FN3)
SIMILARLY, DUE PROCESS CLEARLY REQUIRES TIMELY NOTICE OF THE PURPOSE
AND SCOPE OF ANY PROCEEDINGS AFFECTING THE RELATIONSHIP OF PARENT AND
CHILD.  ARMSTRONG V. MANZO, 380 U.S. 545.  BUT IT CERTAINLY DOES NOT
FOLLOW THAT NOTICE OF A JUVENILE HEARING MUST BE FRAMED WITH ALL THE
TECHNICAL NICETIES OF A CRIMINAL INDICTMENT.  SEE RUSSELL V. UNITED
STATES, 369 U.S. 749. 

IN ANY EVENT, THERE IS NO REASON TO DEAL WITH ISSUES SUCH AS THESE IN
THE PRESENT CASE.  THE SUPREME COURT OF ARIZONA FOUND THAT THE PARENTS
OF GERALD GAULT "KNEW OF THEIR RIGHT TO COUNSEL, TO SUBPOENA AND CROSS
EXAMINE WITNESSES, OF THE RIGHT TO CONFRONT THE WITNESSES AGAINST
GERALD AND THE POSSIBLE CONSEQUENCES OF A FINDING OF DELINQUENCY."  99
ARIZ. 181, 185, 407 P.2D 760, 763.  IT FURTHER FOUND THAT "MRS.  GAULT
KNEW THE EXACT NATURE OF THE CHARGE AGAINST GERALD FROM THE DAY HE WAS
TAKEN TO THE DETENTION HOME."  99 ARIZ., AT 193, 407 P.2D, AT 768. 
AND, AS MR. JUSTICE WHITE CORRECTLY POINTS OUT, PP. 64-65, ANTE, NO
ISSUE OF COMPULSORY SELF-INCRIMINATION IS PRESENTED BY THIS CASE. 

I WOULD DISMISS THE APPEAL. 

FN1  I FIND IT STRANGE THAT A COURT SO INTENT UPON FASTENING AN
ABSOLUTE RIGHT TO COUNSEL UPON NONADVERSARY JUVENILE PROCEEDINGS HAS
NOT BEEN WILLING EVEN TO CONSIDER WHETHER THE CONSTITUTION REQUIRES A
LAWYER'S HELP IN A CRIMINAL PROSECUTION UPON A MISDEMEANOR CHARGE.  SEE
WINTERS V. BECK, 385 U.S. 907; DEJOSEPH V. CONNECTICUT, 385 U.S. 982. 

FN2  STATE V. GUILD, 5 HALST.  163, 18 AM. DEC. 404 (N.J. SUP. CT.). 

"THUS, ALSO, IN VERY MODERN TIMES, A BOY OF TEN YEARS OLD WAS
CONVICTED ON HIS OWN CONFESSION OF MURDERING HIS BED-FELLOW, THERE
APPEARING IN HIS WHOLE BEHAVIOR PLAIN TOKENS OF A MISCHIEVOUS
DISCRETION; AND AS THE SPARING THIS BOY MERELY ON ACCOUNT OF HIS TENDER
YEARS MIGHT BE OF DANGEROUS CONSEQUENCE TO THE PUBLIC, BY PROPAGATING A
NOTION THAT CHILDREN MIGHT COMMIT SUCH ATROCIOUS CRIMES WITH IMPUNITY,
IT WAS UNANIMOUSLY AGREED BY ALL THE JUDGES THAT HE WAS A PROPER
SUBJECT OF CAPITAL PUNISHMENT."  4 BLACKSTONE, COMMENTARIES 23 (WENDELL
ED. 1847). 

FN3  UNTIL JUNE 13, 1966, IT WAS CLEAR THAT THE FOURTEENTH
AMENDMENT'S BAN UPON THE USE OF A COERCED CONFESSION IS
CONSTITUTIONALLY QUITE A DIFFERENT THING FROM THE FIFTH AMENDMENT'S
TESTIMONIAL PRIVILEGE AGAINST SELF-INCRIMINATION.  SEE, FOR EXAMPLE,
THE COURT'S UNANIMOUS OPINION IN BROWN V. MISSISSIPPI, 297 U.S. 278, AT
285-286, WRITTEN BY CHIEF JUSTICE HUGHES AND JOINED BY SUCH
DISTINGUISHED MEMBERS OF THIS COURT AS MR. JUSTICE BRANDEIS, MR.
JUSTICE STONE, AND MR. JUSTICE CARDOZO.  SEE ALSO TEHAN V. SHOTT, 382
U.S. 406, DECIDED JANUARY 19, 1966, WHERE THE COURT EMPHASIZED THE
"CONTRAST" BETWEEN "THE WRONGFUL USE OF A COERCED CONFESSION" AND "THE
FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION."  382 U.S., AT
416.  THE COMPLETE CONFUSION OF THESE SEPARATE CONSTITUTIONAL DOCTRINES
IN PART V OF THE COURT'S OPINION TODAY STEMS, NO DOUBT, FROM MIRANDA V.
ARIZONA, 384 U.S. 436, A DECISION WHICH I CONTINUE TO BELIEVE WAS
CONSTITUTIONALLY ERRONEOUS. 
..END :













DOMBROWSKI V. EASTLAND 387 U.S. 82 


NO. 118.  ARGUED FEBRUARY 20, 1967.  - DECIDED MAY 15, 1967.  - 123 U.S.
APP. D.C. 190, 358 F.2D 821, AFFIRMED IN PART AND REVERSED AND REMANDED
IN PART. 


PETITIONERS CLAIM THAT RESPONDENTS, CHAIRMAN OF THE INTERNAL SECURITY
SUBCOMMITTEE OF THE U.S. SENATE JUDICIARY COMMITTEE AND THE
SUBCOMMITTEE'S CHIEF COUNSEL, TORTIOUSLY ENTERED INTO AND PARTICIPATED
IN A CONSPIRACY WITH LOUISIANA OFFICIALS TO SEIZE PETITIONERS' PROPERTY
AND RECORDS IN VIOLATION OF THE FOURTH AMENDMENT.  LOUISIANA COURTS
HELD THE ARRESTS AND SEARCHES ILLEGAL.  HERE, THE COURT BELOW, WHILE
RECOGNIZING DIFFICULTY IN CONCLUDING THAT THERE WERE NO DISPUTED ISSUES
OF FACT RESPECTING PETITIONERS' CLAIM, UPHELD SUMMARY DISMISSAL OF THE
ACTION ON THE GROUND OF RESPONDENTS' LEGISLATIVE IMMUNITY.  HELD:
SINCE THERE IS NO EVIDENCE OF THE RESPONDENT CHAIRMAN'S "INVOLVEMENT IN
ANY ACTIVITY THAT COULD RESULT IN LIABILITY," THE COMPLAINT AS TO HIM
WAS PROPERLY DISMISSED.  THE DOCTRINE OF LEGISLATIVE IMMUNITY PROTECTS
"LEGISLATORS ENGAGED 'IN THE SPHERE OF LEGITIMATE LEGISLATIVE
ACTIVITY,'  ...  NOT ONLY FROM THE CONSEQUENCES OF LITIGATION'S RESULTS
BUT ALSO FROM THE BURDEN OF DEFENDING THEMSELVES."  HOWEVER, THE
DOCTRINE OF LEGISLATIVE IMMUNITY IS LESS ABSOLUTE WHEN APPLIED TO
OFFICERS OR EMPLOYEES OF LEGISLATIVE BODIES.  THERE IS A SUFFICIENT
FACTUAL DISPUTE WITH RESPECT TO THE ALLEGED PARTICIPATION IN THE
CONSPIRACY OF THE SUBCOMMITTEE'S CHIEF COUNSEL TO REQUIRE THAT A TRIAL
BE HAD.  THE LEGAL CONSEQUENCES OF SUCH PARTICIPATION, IF IT OCCURRED,
CANNOT BE DETERMINED PRIOR TO THE FACTUAL REFINEMENT OF TRIAL.  THE
JUDGMENT BELOW IS THEREFORE REVERSED AS TO THE SUBCOMMITTEE'S CHIEF
COUNSEL. 

DOMBROWSKI ET AL. V. EASTLAND ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SUSTAINED
THE ORDER GRANTING SUMMARY JUDGMENT TO THE RESPONDENTS WHO ARE,
RESPECTIVELY, THE CHAIRMAN AND COUNSEL OF THE INTERNAL SECURITY
SUBCOMMITTEE OF THE JUDICIARY COMMITTEE OF THE UNITED STATES SENATE. 
PETITIONERS' CLAIM IS ESSENTIALLY THAT RESPONDENTS TORTIOUSLY ENTERED
INTO AND PARTICIPATED IN A CONSPIRACY AND CONCERT OF ACTION WITH
LOUISIANA OFFICIALS TO SEIZE PROPERTY AND RECORDS OF PETITIONERS BY
UNLAWFUL MEANS IN VIOLATION OF PETITIONERS' FOURTH AMENDMENT RIGHTS. 
THE CIRCUMSTANCES OF THE SEARCHES AND ARRESTS INVOLVED ARE SET FORTH IN
DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965), AND IN JUDGE WISDOM'S
DISSENTING OPINION IN THE DISTRICT COURT IN THAT CASE, 227 F. SUPP.
556, 573 (D.C.E.D. LA. 1964).  LOUISIANA COURTS HELD THE ARRESTS AND
SEARCHES ILLEGAL BECAUSE THE WARRANTS SECURED BY THE POLICE HAD NOT
BEEN SUPPORTED BY A SHOWING OF PROBABLE CAUSE.  IN A CIVIL SUIT BY
THESE SAME PETITIONERS AGAINST THE LOUISIANA OFFICIALS ALLEGEDLY
INVOLVED IN THE CONSPIRACY, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT,
REVERSING A SUMMARY JUDGMENT IN FAVOR OF THIRD-PARTY DEFENDANTS, HELD
THAT PLAINTIFFS HAD RAISED A GENUINE ISSUE OF MATERIAL FACT WHETHER THE
CHAIRMAN "AND THE OTHER MEMBERS OF THE STATE COMMITTEE WERE 'ACTING IN
THE SPHERE OF LEGITIMATE LEGISLATIVE ACTIVITY,' WHICH WOULD ENTITLE
THEM TO IMMUNITY."  PFISTER V. ARCENEAUX, 376 F.2D 821. 

IN THE PRESENT CASE, THE COURT BELOW RECOGNIZED "CONSIDERABLE
DIFFICULTY" IN REACHING THE CONCLUSION THAT, ON THE BASIS OF THE
AFFIDAVITS OF THE PARTIES, THERE WERE NO DISPUTED ISSUES OF FACT WITH
RESPECT TO PETITIONERS' CLAIM.  IT NEVERTHELESS UPHELD SUMMARY
DISMISSAL OF THE ACTION ON THE GROUND THAT "THE RECORD BEFORE THE
DISTRICT COURT CONTAINED UNCHALLENGED FACTS OF A NATURE AND SCOPE
SUFFICIENT TO GIVE RESPONDENTS AN IMMUNITY AGAINST ANSWERABILITY IN
DAMAGES  ...  ."  IN SUPPORT OF THIS CONCLUSION THE COURT ADDRESSED
ITSELF TO ONLY THAT PART OF PETITIONERS' CLAIMS WHICH RELATED TO THE
TAKE-OVER OF THE RECORDS BY RESPONDENTS AFTER THE "RAIDS."  AS TO THIS,
IT HELD THAT THE SUBJECT MATTER OF THE SEIZED RECORDS WAS WITHIN THE
JURISDICTION OF THE SENATE SUBCOMMITTEE AND THAT THE ISSUANCE OF
SUBPOENAS TO THE LOUISIANA COMMITTEE TO OBTAIN THE RECORDS HELD BY IT
WAS VALIDATED BY SUBSEQUENT SUBCOMMITTEE RATIFICATION.  ON THIS BASIS,
THE COURT HELD THAT THE ACTS FOR WHICH PETITIONERS SEEK RELIEF WERE
PRIVILEGED, CITING TENNEY V. BRANDHOVE, 341 U.S. 367 (1951). 

THE COURT DID NOT SPECIFICALLY COMMENT UPON PETITIONERS' CONTENTION
THAT THE RECORD SHOWS A MATERIAL DISPUTE OF FACT AS TO THEIR CLAIM THAT
RESPONDENT SOURWINE ACTIVELY COLLABORATED WITH COUNSEL TO THE LOUISIANA
COMMITTEE IN MAKING THE PLANS FOR THE ALLEGEDLY ILLEGAL "RAIDS"
PURSUANT TO THE CLAIMED AUTHORITY OF THE LOUISIANA COMMITTEE AND ON ITS
BEHALF, IN WHICH PETITIONERS CLAIM THAT THEIR PROPERTY AND RECORDS WERE
SEIZED IN VIOLATION OF THEIR FOURTH AMENDMENT RIGHTS.  IN THE ABSENCE
OF THE FACTUAL REFINEMENT WHICH CAN OCCUR ONLY AS A RESULT OF TRIAL, WE
NEED NOT AND, INDEED, COULD NOT EXPRESS JUDGMENT AS TO THE LEGAL
CONSEQUENCES OF SUCH COLLABORATION, IF IT OCCURRED. 

THERE IS CONTROVERTED EVIDENCE IN THE RECORD, SUCH AS THE DATE
APPEARING ON CERTAIN DOCUMENTS WHICH RESPONDENTS' EVIDENCE DISPUTES AS
A TYPOGRAPHICAL ERROR, WHICH AFFORDS MORE THAN MERELY COLORABLE
SUBSTANCE TO PETITIONERS' ASSERTIONS AS TO RESPONDENT SOURWINE.  WE
MAKE NO COMMENT AS TO WHETHER THIS EVIDENCE STANDING ALONE WOULD BE
SUFFICIENT TO SUPPORT A VERDICT IN PETITIONERS' FAVOR AGAINST
RESPONDENT SOURWINE, OR WOULD REQUIRE A VERDICT IN HIS FAVOR.  BUT WE
BELIEVE THAT, AS AGAINST AN EMPLOYEE OF THE COMMITTEE, THIS SHOWING IS
SUFFICIENT TO ENTITLE PETITIONERS TO GO TO TRIAL.  IN RESPECT OF
RESPONDENT EASTLAND, WE AGREE WITH THE LOWER COURTS THAT PETITIONERS'
COMPLAINT MUST BE DISMISSED.  THE RECORD DOES NOT CONTAIN EVIDENCE OF
HIS INVOLVEMENT IN ANY ACTIVITY THAT COULD RESULT IN LIABILITY.  IT IS
THE PURPOSE AND OFFICE OF THE DOCTRINE OF LEGISLATIVE IMMUNITY, HAVING
ITS ROOTS AS IT DOES IN THE SPEECH OR DEBATE CLAUSE OF THE
CONSTITUTION, KILBOURN V. THOMPSON, 103 U.S. 168, 204 (1881), THAT
LEGISLATORS ENGAGED "IN THE SPHERE OF LEGITIMATE LEGISLATIVE ACTIVITY,"
TENNEY V. BRANDHOVE, SUPRA, 341 U.S., AT 376, SHOULD BE PROTECTED NOT
ONLY FROM THE CONSEQUENCES OF LITIGATION'S RESULTS BUT ALSO FROM THE
BURDEN OF DEFENDING THEMSELVES.  THIS COURT HAS HELD, HOWEVER, THAT
THIS DOCTRINE IS LESS ABSOLUTE, ALTHOUGH APPLICABLE, WHEN APPLIED TO
OFFICERS OR EMPLOYEES OF A LEGISLATIVE BODY, RATHER THAN TO LEGISLATORS
THEMSELVES.  AS THE COURT SAID IN TENNEY V. BRANDHOVE, SUPRA, THE
DOCTRINE, IN RESPECT OF A LEGISLATOR, "DESERVES GREATER RESPECT THAN
WHERE AN OFFICIAL ACTING ON BEHALF OF THE LEGISLATURE IS SUED  ...  ."*
(341 U.S., AT 378.)  CF. WHEELDIN V. WHEELER, 373 U.S. 647 (1963).  IN
LIGHT OF THIS PRINCIPLE, WE ARE COMPELLED TO HOLD THAT THERE IS A
SUFFICIENT FACTUAL DISPUTE WITH RESPECT TO RESPONDENT SOURWINE TO
REQUIRE REVERSAL OF THE JUDGMENT BELOW AS TO HIM. 

*AS THE COURT POINTED OUT IN TENNEY, SUPRA (PER FRANKFURTER, J.), IN
KILBOURN V. THOMPSON, SUPRA, THIS COURT "ALLOWED A JUDGMENT AGAINST THE
SERGEANT-AT-ARMS, BUT FOUND THAT ONE COULD NOT BE ENTERED AGAINST THE
DEFENDANT MEMBERS OF THE HOUSE."  341 U.S., AT 378. 

ACCORDINGLY, WE AFFIRM THE ORDER OF THE COURT OF APPEALS AS TO
RESPONDENT EASTLAND AND REVERSE AND REMAND TO THE DISTRICT COURT AS TO
RESPONDENT SOURWINE FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS
OPINION. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











IACURCI V. LUMMUS 387 U.S. 86 


NO. 6, MISC.  DECIDED MAY 15, 1967.  - CERTIORARI GRANTED; 340 F.2D 868,
VACATED IN PART AND REMANDED. 


IN THIS WRONGFUL DEATH DIVERSITY ACTION THE DISTRICT COURT JUDGE
SUBMITTED THE QUESTION OF NEGLIGENCE TO THE JURY BY A SPECIAL
INTERROGATORY WHICH ASKED THAT, IF IT FOUND NEGLIGENT DESIGN OF THE
"SKIP HOIST," IT INDICATE WHICH OF FIVE SPECIFIC DESIGN ASPECTS IT HAD
FOUND UNSAFE.  THE JURY RETURNED A SPECIAL VERDICT FOR PETITIONER BUT
ANSWERED ONLY ONE OF THE FIVE SUBSECTIONS.  RESPONDENT'S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT WAS DENIED AND RESPONDENT
APPEALED.  THE COURT OF APPEALS CONCLUDED THAT RESPONDENT'S NEGLIGENCE
WAS NOT ESTABLISHED AS TO THE FOUR DESIGN ASPECTS THAT WERE UNANSWERED,
AND, HOLDING THAT THE EVIDENCE DID NOT SUPPORT A FINDING OF NEGLIGENCE
ON THE FIFTH ASPECT, REVERSED WITH INSTRUCTIONS TO ENTER JUDGMENT FOR
RESPONDENT.  PETITIONER'S REQUEST FOR REHEARING WAS DENIED.  SINCE THIS
COURT DOES NOT SHARE THE COURT OF APPEALS' CONFIDENCE AS TO THE MEANING
OF THE JURY'S FAILURE TO ANSWER FOUR SUBDIVISIONS OF THE INTERROGATORY,
HELD, THE COURT OF APPEALS ERRED IN DIRECTING JUDGMENT FOR RESPONDENT
AND THE CASE SHOULD HAVE BEEN REMANDED TO THE TRIAL JUDGE WHO WAS IN
THE BEST POSITION TO PASS UPON THE QUESTION OF A NEW TRIAL. 

IACURCI V. LUMMUS CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

PETITIONER, WHOSE HUSBAND WAS KILLED WHILE TESTING THE OPERATION OF A
"SKIP HOIST," BROUGHT THIS DIVERSITY ACTION CLAIMING THAT RESPONDENT
HAD NEGLIGENTLY DESIGNED THE HOIST.  THE TRIAL JUDGE SUBMITTED THIS
QUESTION TO THE JURY IN THE FORM OF A SPECIAL INTERROGATORY WHICH ASKED
THAT THE JURY, IF IT FOUND NEGLIGENT DESIGN, "PLEASE INDICATE" WHICH OF
FIVE SPECIFIED DESIGN ASPECTS OF THE HOIST HAD BEEN FOUND UNSAFE.  THE
JURY WAS TO ANSWER "YES" OR "NO" WITH RESPECT TO EACH OF THE FIVE
ENUMERATED FACTORS.  THE JURY RETURNED A SPECIAL VERDICT FOR
PETITIONER, ANSWERING ONE OF THE FIVE SUBSECTIONS OF THE INTERROGATORY
IN PETITIONER'S FAVOR AND LEAVING THE OTHER FOUR UNANSWERED.  THE TRIAL
JUDGE DENIED RESPONDENT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE
JURY'S VERDICT, AND RESPONDENT APPEALED. 

THE COURT OF APPEALS IN ITS PRINCIPAL OPINION* CONCLUDED THAT "WE
MUST TAKE IT THAT THEY (THE JURY) FOUND THAT LUMMUS' NEGLIGENCE WAS NOT
ESTABLISHED" AS TO THE FOUR ASPECTS OF DESIGN COVERED BY THE UNANSWERED
SUBSECTIONS OF THE INTERROGATORY.  THE COURT THEN HELD THAT THE
EVIDENCE DID NOT SUPPORT THE JURY'S FINDING OF NEGLIGENCE AS TO THE
FIFTH ASPECT OF DESIGN AND REVERSED THE TRIAL COURT'S JUDGMENT WITH
INSTRUCTIONS TO ENTER JUDGMENT FOR RESPONDENT.  PETITIONER SOUGHT
REHEARING IN THE COURT OF APPEALS, NOTING HER TIMELY OBJECTION TO THE
TRIAL COURT'S USE OF THE SPECIAL INTERROGATORY AND ARGUING THAT THE
COURT OF APPEALS HAD IMPROPERLY RESTRICTED ITS REVIEW OF THE EVIDENCE
TO THE ONE ASPECT OF DESIGN.  REHEARING WAS DENIED, ONE JUDGE AGAIN
DISSENTING, AND THIS PETITION FOR A WRIT OF CERTIORARI FOLLOWED. 

*IN ADDITION, ONE MEMBER OF THE PANEL CONCURRED AND THE OTHER
DISSENTED.  THE CONCURRING OPINION, THOUGH BASED UPON A COMPLETELY
DIFFERENT ASPECT OF THIS COMPLEX CASE, APPEARS TO ADOPT THE
INTERPRETATION OF THE INTERROGATORY ANSWERS WHICH WE FIND UNWARRANTED. 

WE DO NOT SHARE THE COURT OF APPEALS' CONFIDENCE AS TO THE MEANING,
IN LIGHT OF THE TRIAL COURT'S INSTRUCTIONS, OF THE JURY'S FAILURE TO
ANSWER FOUR SUBDIVISIONS OF THE INTERROGATORY.  PERHAPS THE JURY
INTENDED TO RESOLVE THESE QUESTIONS IN RESPONDENT'S FAVOR; BUT THE JURY
MIGHT HAVE BEEN UNABLE TO AGREE ON THESE ISSUES, OR IT SIMPLY MIGHT NOT
HAVE PASSED UPON THEM BECAUSE IT CONCLUDED THAT RESPONDENT HAD
NEGLIGENTLY DESIGNED THE HOIST IN ANOTHER RESPECT.  IN EITHER OF THE
LATTER TWO SITUATIONS, PETITIONER WOULD CLEARLY DESERVE A NEW TRIAL, AT
LEAST AS TO THESE UNRESOLVED ISSUES OF NEGLIGENCE.  SEE UNION PAC. R.
CO. V. BRIDAL VEIL LUMBER CO., 219 F.2D 825; 5 MOORE, FEDERAL PRACTICE
PARA 49.03(4), AT 2208 (1964 ED.).  UNDER THESE CIRCUMSTANCES, WE THINK
THE COURT OF APPEALS ERRED IN DIRECTING ENTRY OF JUDGMENT FOR
RESPONDENT; THE CASE SHOULD HAVE BEEN REMANDED TO THE TRIAL JUDGE, WHO
WAS IN THE BEST POSITION TO PASS UPON THE QUESTION OF A NEW TRIAL IN
LIGHT OF THE EVIDENCE, HIS CHARGE TO THE JURY, AND THE JURY'S VERDICT
AND INTERROGATORY ANSWERS.  FED. RULE CIV. PROC. 50(D).  SEE NEELY V.
EBY CONSTRUCTION CO., 386 U.S. 317; WEADE V. DICHMANN, WRIGHT & PUGH,
INC., 337 U.S. 801.  ACCORDINGLY, THE MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED,
THE JUDGMENT OF THE COURT OF APPEALS IS VACATED INSOFAR AS IT DIRECTED
ENTRY OF JUDGMENT FOR RESPONDENT, AND THE CASE IS REMANDED WITH
INSTRUCTIONS TO REMAND TO THE DISTRICT COURT TO DETERMINE WHETHER
PETITIONER IS ENTITLED TO A NEW TRIAL.  IT IS SO ORDERED. 

MR. JUSTICE BLACK WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS
AND REINSTATE THE JUDGMENT OF THE DISTRICT COURT IN FAVOR OF
PETITIONER. 

MR. JUSTICE HARLAN, DISSENTING. 

IN NEELY V. EBY CONSTRUCTION CO., 386 U.S. 317, WE HELD THAT A COURT
OF APPEALS MIGHT, DESPITE DENIAL BY THE TRIAL JUDGE OF MOTIONS FOR A
NEW TRIAL AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT, APPROPRIATELY
INSTRUCT THE DISTRICT COURT TO ENTER JUDGMENT AGAINST THE JURY-VERDICT
WINNER.  WE ALSO RECOGNIZED IN NEELY, HOWEVER, THAT THERE MIGHT BE
SITUATIONS IN WHICH THE NECESSITY FOR A NEW TRIAL WOULD BE BETTER
DETERMINED BY THE TRIAL COURT, AND THAT IN SUCH SITUATIONS THE COURT OF
APPEALS SHOULD RETURN THE CASE TO THE DISTRICT COURT FOR SUCH AN
ASSESSMENT. 

IN JOINING NEELY, I DID NOT UNDERSTAND THE OPINION TO REQUIRE THIS
COURT TO INTERPOSE IN EACH CASE ITS OWN JUDGMENT OF THE RELATIVE
COMPETENCE OF THE COURT OF APPEALS AND OF THE DISTRICT COURT TO PASS ON
THE NEW TRIAL MOTION.  RATHER, I UNDERSTOOD NEELY TO PLACE UPON THE
COURT OF APPEALS THE RESPONSIBILITY FOR DETERMINING "IN ITS INFORMED
DISCRETION," SUPRA, AT 329, WHICH, IF ANY, OF THE ISSUES URGED IN
SUPPORT OF A NEW TRIAL "SHOULD BE RESERVED FOR THE TRIAL COURT."  IBID.
I THINK THAT SOUND JUDICIAL ADMINISTRATION DEMANDS THAT THIS COURT
SHOULD OVERTURN A CONSIDERED JUDGMENT OF A COURT OF APPEALS ON SUCH
ISSUES ONLY IN SITUATIONS OF MANIFEST ABUSE OF DISCRETION. 

THE COURT IN THIS INSTANCE STATES THAT IT DOES "NOT SHARE THE COURT
OF APPEALS' CONFIDENCE AS TO THE MEANING, IN LIGHT OF THE TRIAL COURT'S
INSTRUCTIONS, OF THE JURY'S FAILURE TO ANSWER" SUBQUESTIONS INCLUDED IN
THE INTERROGATORIES.  THE AMBIGUITIES UPON WHICH THE COURT NOW RELIES
WERE EARNESTLY URGED BY PETITIONER IN HER PETITION FOR REHEARING TO THE
COURT OF APPEALS.  PETITION FOR REHEARING 5-6, 7-8.  THEY WERE, AS THE
COURT IN NEELY INTENDED, BEFORE THE COURT OF APPEALS FOR ITS JUDGMENT
WHETHER THE CASE SHOULD BE RETURNED TO THE DISTRICT COURT FOR
DETERMINATION OF THE NECESSITY FOR A NEW TRIAL.  HAD I BEEN SITTING ON
THE COURT OF APPEALS I MIGHT NOT HAVE AGREED WITH THE VIEW TAKEN OF
THIS CASE BY THE MAJORITY THERE, BUT I CANNOT AGREE THAT THEIR
CONCLUSION WAS A MANIFEST ABUSE OF THEIR "INFORMED DISCRETION."  I HOPE
THAT THIS DECISION DOES NOT INDICATE THAT THE COURT IS ABOUT TO EMBARK
ON A COURSE COMPARABLE TO THAT IT SET FOR ITSELF IN FELA CASES. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :











AERO MAYFLOWER V. UNITED STATES 387 U.S. 90 


NO. 1136.  DECIDED MAY 15, 1967.  - AFFIRMED. 


AERO MAYFLOWER TRANSIT CO., INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF INDIANA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















RUBIO V. UNITED STATES 387 U.S. 90 


NO. 710, MISC.  DECIDED MAY 15, 1967.  - CERTIORARI GRANTED; JUDGMENT
REVERSED. 


RUBIO V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
COPPEDGE V. UNITED STATES, 369 U.S. 438. 
..END :















GERBERDING V. TAHASH, WARDEN 387 U.S. 91 


NO. 1059, MISC.  DECIDED MAY 15, 1967.  - CERTIORARI GRANTED; 275 MINN.
195, 146 N.W.2D 541, REVERSED. 


GERBERDING V. TAHASH, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
MINNESOTA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
JACKSON V. DENNO, 378 U.S. 368. 
..END :















SKOLNICK V. KERNER 387 U.S. 91 


NO. 1401, MISC.  DECIDED MAY 15, 1967.  - 260 F. SUPP. 318, APPEAL
DISMISSED. 


SKOLNICK V. KERNER, GOVERNOR OF ILLINOIS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BANKS V. CALIFORNIA 387 U.S. 92 


NO. 889, MISC.  DECIDED MAY 15, 1967.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


BANKS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT, FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, 386 U.S. 18. 
..END :













AMERICAN TRUCKING ASS'N V. UNITED STATES 387 U.S. 93 


NO. 1046.  DECIDED MAY 15, 1967.  - 260 F. SUPP. 386, AFFIRMED. 


AMERICAN TRUCKING ASSOCIATIONS, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















HOLDING, GRAND NEWS V. BLANKENSHIP 387 U.S. 94 


NO. 1088.  DECIDED MAY 15, 1967.  - 259 F. SUPP. 694, REVERSED IN PART
AND APPEAL DISMISSED AND CERTIORARI DENIED IN PART. 


HOLDING, DBA GRAND NEWS V. BLANKENSHIP ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA. 

PER CURIAM. 

PROBABLE JURISDICTION NOTED AS TO QUESTION 1.  THE JUDGMENT OF THE
DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA ENTERED NOVEMBER 4,
1966, IS REVERSED INSOFAR AS IT ADJUDGED PROVISIONS OF SECS 1040.1 TO
1040.10 OF TITLE 21 OF THE OKLAHOMA STATUTES TO BE CONSTITUTIONAL. 
BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58.  TREATING THE
NONAPPEALABLE ISSUE PRESENTED BY QUESTION 2 AS IF CONTAINED IN A
PETITION FOR A WRIT OF CERTIORARI, THE PETITION IS DENIED.  SEE MISHKIN
V. NEW YORK, 383 U.S. 502, 512. 

MR. JUSTICE HARLAN CONCURS IN THE DENIAL OF CERTIORARI AS TO QUESTION
2, BUT WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT AS TO QUESTION
1. 

MR. JUSTICE WHITE WOULD NOTE PROBABLE JURISDICTION AND SET THE CASE
FOR ORAL ARGUMENT. 
..END :



BLANKENSHIP V. HOLDING 387 U.S. 95 


NO. 1089.  DECIDED MAY 15, 1967.  - 259 F. SUPP. 694, AFFIRMED. 


BLANKENSHIP ET AL. V. HOLDING, DBA GRAND NEWS. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA. 

PER CURIAM. 

PROBABLE JURISDICTION NOTED.  THE JUDGMENT OF THE DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA ENTERED NOVEMBER 4, 1966, IS AFFIRMED
INSOFAR AS IT ADJUDGED PROVISIONS OF SECS 1040.1 TO 1040.10 OF TITLE 21
OF THE OKLAHOMA STATUTES TO BE UNCONSTITUTIONAL. 
..END :















WIRTZ V. LOCAL UNIONS 9, 9-A & 9-B 387 U.S. 96 


NO. 1116.  DECIDED MAY 15, 1967.  - CERTIORARI GRANTED; 254 F. SUPP. 980
AND 366 F.2D 911, VACATED AND REMANDED WITH DIRECTIONS TO DISMISS THE
COMPLAINT AS MOOT. 


WIRTZ, SECRETARY OF LABOR V. LOCAL UNIONS NOS. 9, 9-A, & 9-B,
INTERNATIONAL UNION OF OPERATING ENGINEERS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

UPON THE JOINT SUGGESTION OF THE PARTIES AND AN INDEPENDENT
EXAMINATION OF THE CASE, THE PETITION FOR A WRIT OF CERTIORARI IS
GRANTED, THE JUDGMENTS ARE VACATED AND THE CASE IS REMANDED WITH
DIRECTIONS TO DISMISS THE COMPLAINT AS MOOT. 
..END :












FLEISCHMANN DISTILLING CORP. V. MAIER BREWING CO. 386 U.S. 714 


NO. 214.  ARGUED FEBRUARY 14, 1967.  - DECIDED MAY 8, 1967.  - 359 F.2D
156, AFFIRMED. 


RESPONDENTS WERE HELD TO HAVE DELIBERATELY INFRINGED PETITIONERS'
LANHAM ACT TRADEMARK RIGHTS.  THE DISTRICT COURT THEN AWARDED
PETITIONERS REASONABLE ATTORNEY'S FEES, RELYING UPON CASE AUTHORITY TO
THE EFFECT THAT SUCH AN AWARD IS PERMISSIBLE WHEN THE INFRINGEMENT IS
"DELIBERATE."  THE COURT OF APPEALS, HAVING GRANTED AN INTERLOCUTORY
APPEAL, REVERSED.  THE LANHAM ACT PROVIDES, IN SEC 35, FOR COMPENSATORY
RECOVERY MEASURED BY THE DEFENDANT'S PROFITS ACCRUING FROM HIS
INFRINGEMENT, THE COSTS OF THE ACTION, AND DAMAGES WHICH MAY BE TREBLED
IN APPROPRIATE CIRCUMSTANCES.  HELD:  ATTORNEY'S FEES ARE NOT
RECOVERABLE UNDER THE LANHAM ACT.  THE METICULOUS STATUTORY PROVISIONS
SET FORTH IN SEC 35 ARE EXCLUSIVE OF ANY OTHER MONETARY REMEDIES FOR
VIOLATION OF RIGHTS PROTECTED BY THE ACT.  PP. 717-721. 

FLEISCHMANN DISTILLING CORP. ET AL. V. MAIER BREWING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS A TRADEMARK CASE ARISING UNDER THE LANHAM ACT (60 STAT. 427,
15 U.S.C. SECS 1051-1127) IN WHICH OUR SOLE CONCERN IS WITH THE RELIEF
THAT MAY BE GRANTED WHEN DELIBERATE INFRINGEMENT OF A VALID TRADEMARK
HAS BEEN ESTABLISHED.  THE QUESTION IS WHETHER FEDERAL COURTS HAVE
POWER IN THAT CONTEXT TO AWARD REASONABLE ATTORNEY'S FEES AS A SEPARATE
ELEMENT OF RECOVERY IN LIGHT OF SEC 35 OF THE ACT WHICH ENUMERATES THE
AVAILABLE COMPENSATORY REMEDIES.  (FN1) 

THE SCOPE OF PETITIONERS' (FN2) TRADEMARK AND THE FACT OF
RESPONDENTS' (FN3) INFRINGEMENT WERE DETERMINED BY THE COURT OF APPEALS
FOR THE NINTH CIRCUIT AT AN EARLIER STAGE OF THIS LITIGATION.  314 F.2D
149, CERT. DENIED, 374 U.S. 830 (1963).  THE CASE WAS THEN REMANDED TO
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA WHICH, AFTER
NOTING THAT THE COURT OF APPEALS HAD CHARACTERIZED RESPONDENTS'
INFRINGING ACTIVITIES AS DELIBERATE, ENTERED ITS OWN FINDING TO THAT
EFFECT.  IN ACCORD WITH PRIOR RULINGS OF CERTAIN COURTS OF APPEALS
(FN4)  AND DISTRICT COURTS (FN5)  THAT ATTORNEY'S FEES COULD BE
RECOVERED IF DELIBERATE OR WILLFUL INFRINGEMENT WERE ESTABLISHED, THE
DISTRICT COURT AWARDED PETITIONERS $60,000 AFTER DETERMINING THAT SUCH
SUM CONSTITUTED REASONABLE ATTORNEY'S FEES FOR PROSECUTION OF THIS
LITIGATION.  RESPONDENTS SOUGHT AN IMMEDIATE INTERLOCUTORY APPEAL
ALTHOUGH PETITIONERS' RIGHTS TO AN ACCOUNTING AND OTHER RELIEF REMAINED
FOR DETERMINATION.  THE COURT OF APPEALS FIRST DISMISSED THE APPEAL AS
PREMATURE, BUT AFTER THE DISTRICT COURT ISSUED A CERTIFICATE UNDER 28
U.S.C. SEC 1292(B)  (FN6)  AUTHORIZATION WAS GRANTED.  SITTING EN BANC
THE COURT OF APPEALS REVERSED THE AWARD OF ATTORNEY'S FEES, HOLDING
THAT UNDER THE LANHAM ACT FEDERAL COURTS ARE WITHOUT POWER TO MAKE SUCH
AWARDS.  359 F.2D 156 (1966).  WE GRANTED CERTIORARI TO RESOLVE THE
CONFLICT BETWEEN THAT HOLDING AND THE PRIOR DECISIONS OF FEDERAL COURTS
UPON WHICH THE DISTRICT COURT HAD RELIED.  385 U.S. 809 (1966).  FOR
THE REASONS ELABORATED BELOW, WE AFFIRM. 

AS EARLY AS 1278, THE COURTS OF ENGLAND WERE AUTHORIZED TO AWARD
COUNSEL FEES TO SUCCESSFUL PLAINTIFFS IN LITIGATION.  (FN7)  SIMILARLY,
SINCE 1607 ENGLISH COURTS HAVE BEEN EMPOWERED TO AWARD COUNSEL FEES TO
DEFENDANTS IN ALL ACTIONS WHERE SUCH AWARDS MIGHT BE MADE TO
PLAINTIFFS.  (FN8) RULES GOVERNING ADMINISTRATION OF THESE AND RELATED
PROVISIONS HAVE DEVELOPED OVER THE YEARS.  IT IS NOW CUSTOMARY IN
ENGLAND, AFTER LITIGATION OF SUBSTANTIVE CLAIMS HAS TERMINATED, TO
CONDUCT SEPARATE HEARINGS BEFORE SPECIAL "TAXING MASTERS" IN ORDER TO
DETERMINE THE APPROPRIATENESS AND THE SIZE OF AN AWARD OF COUNSEL
FEES.  TO PREVENT THE ANCILLARY PROCEEDINGS FROM BECOMING UNDULY
PROTRACTED AND BURDENSOME, FEES WHICH MAY BE INCLUDED IN AN AWARD ARE
USUALLY PRESCRIBED, EVEN INCLUDING THE AMOUNTS THAT MAY BE RECOVERED
FOR LETTERS DRAFTED ON BEHALF OF A CLIENT.  (FN9) 

ALTHOUGH SOME AMERICAN COMMENTATORS HAVE URGED ADOPTION OF THE
ENGLISH PRACTICE IN THIS COUNTRY, (FN10)  OUR COURTS HAVE GENERALLY
RESISTED ANY MOVEMENT IN THAT DIRECTION.  THE RULE HERE HAS LONG BEEN
THAT ATTORNEY'S FEES ARE NOT ORDINARILY RECOVERABLE IN THE ABSENCE OF A
STATUTE OR ENFORCEABLE CONTRACT PROVIDING THEREFOR.  THIS COURT FIRST
ANNOUNCED THAT RULE IN ARCAMBEL V. WISEMAN, 3 DALL.  306 (1796), AND
ADHERED TO IT IN LATER DECISIONS.  SEE, E.G., HAUENSTEIN V. LYNHAM, 100
U.S. 483 (1880); STEWART V. SONNEBORN, 98 U.S. 187 (1879); OELRICHS V.
SPAIN, 15 WALL.  211 (1872); DAY V. WOODWORTH, 13 HOW.  363 (1852).  IN
SUPPORT OF THE AMERICAN RULE, IT HAS BEEN ARGUED THAT SINCE LITIGATION
IS AT BEST UNCERTAIN ONE SHOULD NOT BE PENALIZED FOR MERELY DEFENDING
OR PROSECUTING A LAWSUIT, AND THAT THE POOR MIGHT BE UNJUSTLY
DISCOURAGED FROM INSTITUTING ACTIONS TO VINDICATE THEIR RIGHTS IF THE
PENALTY FOR LOSING INCLUDED THE FEES OF THEIR OPPONENTS' COUNSEL.  CF.
FARMER V. ARABIAN AMERICAN OIL CO., 379 U.S. 227, AT 235 (1964); ID.,
AT 236-239 (CONCURRING OPINION OF MR. JUSTICE GOLDBERG).  ALSO, THE
TIME, EXPENSE, AND DIFFICULTIES OF PROOF INHERENT IN LITIGATING THE
QUESTION OF WHAT CONSTITUTES REASONABLE ATTORNEY'S FEES WOULD POSE
SUBSTANTIAL BURDENS FOR JUDICIAL ADMINISTRATION.  OELRICHS V. SPAIN,
SUPRA, AT 231. 

LIMITED EXCEPTIONS TO THE AMERICAN RULE HAVE, OF COURSE, DEVELOPED. 
(FN11)  THEY HAVE BEEN SANCTIONED BY THIS COURT WHEN OVERRIDING
CONSIDERATIONS OF JUSTICE SEEMED TO COMPEL SUCH A RESULT.  IN
APPROPRIATE CIRCUMSTANCES, WE HAVE HELD, AN ADMIRALTY PLAINTIFF MAY BE
AWARDED COUNSEL FEES AS AN ITEM OF COMPENSATORY DAMAGES (NOT AS A
SEPARATE COST TO BE TAXED).  VAUGHAN V. ATKINSON, 369 U.S. 527 (1962). 
AND IN A CIVIL CONTEMPT ACTION OCCASIONED BY WILLFUL DISOBEDIENCE OF A
COURT ORDER AN AWARD OF ATTORNEY'S FEES MAY BE AUTHORIZED AS PART OF
THE FINE TO BE LEVIED ON THE DEFENDANT.  TOLEDO SCALE CO. V. COMPUTING
SCALE CO., 261 U.S. 399, 426-428 (1923).  THE CASE UPON WHICH
PETITIONERS HERE PLACE THEIR PRINCIPAL RELIANCE - SPRAGUE V. TICONIC
NATIONAL BANK, 307 U.S. 161 (1939) - INVOLVED YET ANOTHER EXCEPTION. 
THAT EXCEPTION HAD PREVIOUSLY BEEN APPLIED IN CASES WHERE A PLAINTIFF
TRACED OR CREATED A COMMON FUND FOR THE BENEFIT OF OTHERS AS WELL AS
HIMSELF.  CENTRAL RAILROAD & BANKING CO. V. PETTUS, 113 U.S. 116
(1885); TRUSTEES V. GREENOUGH, 105 U.S. 527 (1882).  IN THAT SITUATION
TO HAVE ALLOWED THE OTHERS TO OBTAIN FULL BENEFIT FROM THE PLAINTIFF'S
EFFORTS WITHOUT REQUIRING CONTRIBUTION OR CHARGING THE COMMON FUND FOR
ATTORNEY'S FEES WOULD HAVE BEEN TO ENRICH THE OTHERS UNJUSTLY AT THE
EXPENSE OF THE PLAINTIFF.  SPRAGUE ITSELF INVOLVED A VARIATION OF THE
COMMON-FUND SITUATION WHERE, ALTHOUGH THE PLAINTIFF HAD NOT IN A
TECHNICAL SENSE SUED FOR THE BENEFIT OF OTHERS OR TO CREATE A COMMON
FUND, THE STARE DECISIS EFFECT OF THE JUDGMENT OBTAINED BY THE
PLAINTIFF ESTABLISHED AS A MATTER OF LAW THE RIGHT OF A DISCERNIBLE
CLASS OF PERSONS TO COLLECT UPON SIMILAR CLAIMS.  THE COURT HELD THAT
THE GENERAL EQUITY POWER "TO DO EQUITY IN A PARTICULAR SITUATION"
SUPPORTED AN AWARD OF ATTORNEY'S FEES UNDER SUCH CIRCUMSTANCES FOR THE
SAME REASONS THAT UNDERLAY THE COMMON-FUND DECISIONS. 

THE RECOGNIZED EXCEPTIONS TO THE GENERAL RULE WERE NOT, HOWEVER,
DEVELOPED IN THE CONTEXT OF STATUTORY CAUSES OF ACTION FOR WHICH THE
LEGISLATURE HAD PRESCRIBED INTRICATE REMEDIES.  TRADEMARK ACTIONS UNDER
THE LANHAM ACT DO OCCUR IN SUCH A SETTING.  FOR, IN THE LANHAM ACT,
CONGRESS METICULOUSLY DETAILED THE REMEDIES AVAILABLE TO A PLAINTIFF
WHO PROVES THAT HIS VALID TRADEMARK HAS BEEN INFRINGED.  IT PROVIDED
NOT ONLY FOR INJUNCTIVE RELIEF, (FN12) BUT ALSO FOR COMPENSATORY
RECOVERY MEASURED BY THE PROFITS THAT ACCRUED TO THE DEFENDANT BY
VIRTUE OF HIS INFRINGEMENT, THE COSTS OF THE ACTION, AND DAMAGES WHICH
MAY BE TREBLED IN APPROPRIATE CIRCUMSTANCES.  (FN13) PETITIONERS HAVE
ADVANCED THE PROPOSITION THAT THE AUTHORITY TO AWARD "COSTS OF THE
ACTION" TAKEN TOGETHER WITH THE INTRODUCTORY PHRASE "SUBJECT TO THE
PRINCIPLES OF EQUITY" SHOULD BE DEEMED IMPLICIT AUTHORITY FOR AN AWARD
OF ATTORNEY'S FEES IN LIGHT OF THE REFERENCE IN SPRAGUE TO THE GENERAL
EQUITY POWER.  BUT NONE OF THE CONSIDERATIONS WHICH SUPPORTED THE
EXCEPTION RECOGNIZED IN SPRAGUE ARE PRESENT HERE.  MOREOVER, SINCE WITH
THE EXCEPTION OF THE DOCKET FEE PROVIDED BY 28 U.S.C. SEC 1923(A),
(FN14)  THE STATUTORY DEFINITION OF THE TERM "COSTS" DOES NOT INCLUDE
ATTORNEY'S FEES,  (FN15)  ACCEPTANCE OF PETITIONERS' ARGUMENT WOULD
REQUIRE US TO ASCRIBE TO CONGRESS A PURPOSE TO VARY THE MEANING OF THAT
TERM WITHOUT EITHER STATUTORY LANGUAGE OR LEGISLATIVE HISTORY TO
SUPPORT THE UNUSUAL CONSTRUCTION.  WHEN A CAUSE OF ACTION HAS BEEN
CREATED BY A STATUTE WHICH EXPRESSLY PROVIDES THE REMEDIES FOR
VINDICATION OF THE CAUSE, OTHER REMEDIES SHOULD NOT READILY BE
IMPLIED.  PHILP V. NOCK, 17 WALL.  460 (1873); TEESE V. HUNTINGDON, 23
HOW.  2 (1860); CF. DAY V. WOODWORTH, 13 HOW.  363 (1852).  CONGRESS
HAS OVERTURNED THE SPECIFIC CONSEQUENCE OF PHILP AND TEESE BY EXPRESSLY
ALLOWING RECOVERY OF ATTORNEY'S FEES IN PATENT CASES  (FN16)  AND HAS
SELECTIVELY PROVIDED A SIMILAR REMEDY IN CONNECTION WITH VARIOUS OTHER
STATUTORY CAUSES OF ACTION.  (FN17)  BUT SEVERAL ATTEMPTS TO INTRODUCE
SUCH A PROVISION INTO THE LANHAM ACT HAVE FAILED OF ENACTMENT.  (FN18)
WE THEREFORE MUST CONCLUDE THAT CONGRESS INTENDED SEC 35 OF THE LANHAM
ACT TO MARK THE BOUNDARIES OF THE POWER TO AWARD MONETARY RELIEF IN
CASES ARISING UNDER THE ACT.  A JUDICIALLY CREATED COMPENSATORY REMEDY
IN ADDITION TO THE EXPRESS STATUTORY REMEDIES IS INAPPROPRIATE IN THIS
CONTEXT.  AFFIRMED. 

FN1  SECTION 35 OF THE LANHAM ACT, 15 U.S.C. SEC 1117: 

"WHEN A VIOLATION OF ANY RIGHT OF THE REGISTRANT OF A MARK REGISTERED
IN THE PATENT OFFICE SHALL HAVE BEEN ESTABLISHED IN ANY CIVIL ACTION
ARISING UNDER THIS CHAPTER, THE PLAINTIFF SHALL BE ENTITLED, SUBJECT TO
THE PROVISIONS OF SECTIONS 1111 AND 1114 OF THIS TITLE, AND SUBJECT TO
THE PRINCIPLES OF EQUITY, TO RECOVER (1) DEFENDANT'S PROFITS, (2) ANY
DAMAGES SUSTAINED BY THE PLAINTIFF, AND (3) THE COSTS OF THE ACTION
...  . IN ASSESSING DAMAGES THE COURT MAY ENTER JUDGMENT, ACCORDING TO
THE CIRCUMSTANCES OF THE CASE, FOR ANY SUM ABOVE THE AMOUNT FOUND AS
ACTUAL DAMAGES, NOT EXCEEDING THREE TIMES SUCH AMOUNT.  IF THE COURT
SHALL FIND THAT THE AMOUNT OF THE RECOVERY BASED ON PROFITS IS EITHER
INADEQUATE OR EXCESSIVE THE COURT MAY IN ITS DISCRETION ENTER JUDGMENT
FOR SUCH SUM AS THE COURT SHALL FIND TO BE JUST, ACCORDING TO THE
CIRCUMSTANCES OF THE CASE.  SUCH SUM IN EITHER OF THE ABOVE
CIRCUMSTANCES SHALL CONSTITUTE COMPENSATION AND NOT A PENALTY." 

FN2  THE FLEISCHMANN DISTILLING CORPORATION OWNS THE AMERICAN
DISTRIBUTION RIGHTS TO SCOTCH WHISKEY SOLD UNDER THE TRADEMARK "BLACK &
WHITE."  ITS CO-PETITIONER IS JAMES BUCHANAN & CO., LTD., OWNER AND
REGISTRANT OF THE TRADEMARK. 

FN3  MAIER BREWING COMPANY, THE PRINCIPAL RESPONDENT, IS AN
INDEPENDENT BREWERY WHICH MARKETED A BEER UNDER THE LABEL "BLACK &
WHITE" THROUGH ITS CO-RESPONDENT, RALPHS GROCERY COMPANY. 

FN4  E.G., BAKER V. SIMMONS CO., 325 F.2D 580 (C.A. 1ST CIR. 1963);
WOLFE V. NATIONAL LEAD CO., 272 F.2D 867 (C.A. 9TH CIR. 1959); KELLER
PRODUCTS V. RUBBER LININGS CORP., 213 F.2D 382 (C.A. 7TH CIR. 1954);
CENTURY DISTILLING CO. V. CONTINENTAL DISTILLING CORP., 205 F.2D 140
(C.A. 3D CIR. 1953); ADMIRAL CORP. V. PENCO, INC., 203 F.2D 517 (C.A.2D
CIR. 1953).  AS THE COURT OF APPEALS IN THIS CASE POINTED OUT, THE
DECISIONS UPHOLDING AWARDS OF ATTORNEY'S FEES UNDER THE LANHAM ACT IN
MOST INSTANCES MERELY STATE THE CONCLUSION THAT ATTORNEY'S FEES ARE
RECOVERABLE AND CITE PRIOR CASE AUTHORITY, OFTEN COMMENCING WITH A PRE
LANHAM ACT DECISION - ALADDIN MFG. CO. V. MANTLE LAMP CO., 116 F.2D 708
(C.A. 7TH CIR. 1941). 

FN5  E.G., YOUTHFORM CO. V. R.H. MACY & CO., 153 F. SUPP. 87
(D.C.N.D. GA. 1957); WILLIAMSON-DICKIE MFG. CO. V. DAVIS MFG. CO., 149
F. SUPP. 852 (D.C.E.D. PA. 1957); FRANCIS H. LEGGETT & CO. V. PREMIER
PACKING CO., 140 F. SUPP. 328 (D.C. MASS. 1956); SINGER MFG. CO. V.
SINGER UPHOLSTERING & SEWING CO., 130 F. SUPP. 205 (D.C.W.D. PA.
1955). 

FN6  "WHEN A DISTRICT JUDGE, IN MAKING IN A CIVIL ACTION AN ORDER NOT
OTHERWISE APPEALABLE UNDER THIS SECTION, SHALL BE OF THE OPINION THAT
SUCH ORDER INVOLVES A CONTROLLING QUESTION OF LAW AS TO WHICH THERE IS
SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION AND THAT AN IMMEDIATE
APPEAL FROM THE ORDER MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION
OF THE LITIGATION, HE SHALL SO STATE IN WRITING IN SUCH ORDER.  THE
COURT OF APPEALS MAY THEREUPON, IN ITS DISCRETION, PERMIT AN APPEAL TO
BE TAKEN FROM SUCH ORDER, IF APPLICATION IS MADE TO IT WITHIN TEN DAYS
AFTER THE ENTRY OF THE ORDER ...  ." 

FN7  STATUTE OF GLOUCESTER, 1278, 6 EDW.  1, C. 1.  THIS STATUTE,
WHICH EXPRESSLY MENTIONED ONLY "THE COSTS OF HIS WRIT PURCHASED," WAS
FROM THE OUTSET LIBERALLY CONSTRUED TO ENCOMPASS ALL LEGAL COSTS OF
SUIT, INCLUDING COUNSEL FEES.  GOODHART, COSTS, 38 YALE L.J. 849, 852
(1929). 

FN8  STATUTE OF WESTMINSTER, 1607, 4 JAC.  1, C. 3. 

FN9  SEE GENERALLY MCCORMICK, DAMAGES SEC 60 (1935); GOODHART, COSTS,
38 YALE L.J. 849-872 (1929)(PASSIM). 

FN10 EHRENZWEIG, REIMBURSEMENT OF COUNSEL FEES AND THE GREAT SOCIETY,
54 CALIF. L. REV. 792 (1966); MCCORMICK, COUNSEL FEES AND OTHER
EXPENSES OF LITIGATION AS AN ELEMENT OF DAMAGES, 15 MINN. L. REV. 619
(1931); STOEBUCK, COUNSEL FEES INCLUDED IN COSTS: A LOGICAL
DEVELOPMENT, 38 COLO. L. REV. 202 (1966); NOTE, 65 MICH. L. REV. 593
(1967). 

FN11  28 U.S.C. SEC. 1923(A), WHICH IS DERIVED FROM THE FEE BILL OF
1853, 10 STAT. 161, MIGHT BE TERMED A "GENERAL EXCEPTION."  IT PROVIDES
FOR RECOVERY OF NOMINAL SUMS KNOWN AS "ATTORNEY'S AND PROCTOR'S DOCKET
FEES."  IN ORDINARY LITIGATION AND "ON TRIAL OR FINAL HEARING" THE SUM
RECOVERABLE UNDER THIS PROVISION IS $20, TO BE TAXED AS PART OF THE
COSTS DEFINED BY 28 U.S.C. SEC 1920. 

FN12  SECTION 34 OF THE LANHAM ACT, 60 STAT. 439, 15 U.S.C. SEC
1116.    FN13  SECTION 35 OF THE LANHAM ACT, 60 STAT. 439, 15 U.S.C.
SEC 1117 (QUOTED, SUPRA, N. 1). 

FN14  SEE N. 11, SUPRA. 

FN15  28 U.S.C. SEC 1920 PROVIDES: 

"A JUDGE OR CLERK OF ANY COURT OF THE UNITED STATES MAY TAX AS COSTS
THE FOLLOWING: 

"(1)  FEES OF THE CLERK AND MARSHAL; 

"(2)  FEES OF THE COURT REPORTER FOR ALL OR ANY PART OF THE
STENOGRAPHIC TRANSCRIPT NECESSARILY OBTAINED FOR USE IN THE CASE; 

"(3)  FEES AND DISBURSEMENTS FOR PRINTING AND WITNESSES;    "(4)
FEES FOR EXEMPLIFICATION AND COPIES OF PAPERS NECESSARILY OBTAINED FOR
USE IN THE CASE; 

"(5)  DOCKET FEES UNDER SECTION 1923 OF THIS TITLE. 

"A BILL OF COSTS SHALL BE FILED IN THE CASE AND, UPON ALLOWANCE,
INCLUDED IN THE JUDGMENT OR DECREE." 

FN16  35 U.S.C. SEC 285.  THIS PROVISION WAS ENACTED IN 1946, AS WAS
THE LANHAM ACT.  60 STAT. 778.  IT WAS REVISED IN 1952, SO AS TO LIMIT
SUCH RECOVERY TO "EXCEPTIONAL CASES."  66 STAT. 813. 

FN17  SEE, E.G., CLAYTON ACT, SEC. 4, 38 STAT. 731, 15 U.S.C. SEC.
15; COMMUNICATIONS ACT OF 1934, SEC. 206, 48 STAT. 1072, 47 U.S.C. SEC.
206; COPYRIGHT ACT, 17 U.S.C. SEC. 116; FAIR LABOR STANDARDS ACT, SEC
16(B), 52 STAT. 1069, 29 U.S.C. SEC 216(B); INTERSTATE COMMERCE ACT,
SEC 16, 34 STAT. 590, 49 U.S.C. SEC 16(2); PACKERS AND STOCKYARDS ACT,
SEC 309(F), 42 STAT.  166, 7 U.S.C. SEC 210(F); PERISHABLE AGRICULTURAL
COMMODITIES ACT, SEC 7(B), 46 STAT, 535, 7 U.S.C. SEC. 499GB); RAILWAY
LABOR ACT, SEC. 3 FIRSTP), 48 STAT. 1192, 45 U.S.C. SEC. 153 FIRSTP);
SECURITIES ACT OF 1933, SEC. 11(E), 48 STAT. 907, 15 U.S.C. SEC. 77KE);
SECURITIES EXCHANGE ACT OF 1934, SECS 9(E), 18(A), 48 STAT. 890, 897,
15 U.S.C. SECS 78IE), 78RA); SERVICEMEN'S READJUSTMENT ACT, 38 U.S.C.
SEC 1822(B); TRUST INDENTURE ACT, SEC 323(A), 53 STAT. 1176, 15 U.S.C.
SEC. 77WWWA).  SEE ALSO FED. RULES CIV. PROC. 37(A) AND 56(G). 

FN18  S. 2540, 83D CONG., 1ST SESS., SEC. 25 (1953), CONTAINING A
PROVISION FOR RECOVERY OF ATTORNEY'S FEES, PASSED THE SENATE BUT FAILED
OF ENACTMENT IN THE HOUSE OF REPRESENTATIVES.  THE REPORT ACCOMPANYING
THE BILL STATED THAT THE PROVISION WAS INTENDED TO PARALLEL THE THEN
RECENT ADDITION TO THE PATENT STATUTE.  (SEE N. 16, SUPRA.)  A SIMILAR
PROVISION WAS EMBODIED IN H.R. 7734, 84TH CONG., 1ST SESS., SEC 25
(1955), WHICH ALSO DIED AFTER PASSING THE ORIGINATING HOUSE. 

MR. JUSTICE STEWART, DISSENTING. 

UNTIL THIS CASE, EVERY FEDERAL COURT THAT HAS FACED THE ISSUE HAS
UPHELD JUDICIAL POWER TO AWARD COUNSEL FEES IN TRADEMARK INFRINGEMENT
CASES.  (FN1)  IN ORDER TO OVERRULE THAT UNBROKEN LINE OF AUTHORITY, I
WOULD HAVE TO BE SATISFIED THAT CONGRESS HAS CLEARLY DECLARED THAT
COUNSEL FEES MAY NOT BE AWARDED.  THE COURT'S OPINION DOES NOT CONVINCE
ME THAT CONGRESS HAS MADE ANY SUCH DECLARATION.  (FN2) 

IT IS NOT ENOUGH TO SAY THAT CONGRESS DID NOT EXPRESSLY PROVIDE FOR
COUNSEL FEES IN THE ORIGINAL LANHAM ACT AND HAS NOT SUBSEQUENTLY
AMENDED THE ACT TO AUTHORIZE THEIR ALLOWANCE.  THERE ARE MANY REASONS
FOR REJECTING THAT KIND OF APPROACH TO STATUTORY INTERPRETATION IN THIS
CASE.  THE COURT ACKNOWLEDGES THAT A PRE-LANHAM ACT DECISION - ALADDIN
MFG. CO. V. MANTLE LAMP CO., 116 F.2D 708 (C.A. 7TH CIR.) - HELD
COUNSEL FEES WERE RECOVERABLE IN A TRADEMARK ACTION.  (FN3)  IT SEEMS
TO ME REASONABLE TO ASSUME THAT WHEN CONGRESS IN THE LANHAM ACT
EMPOWERED COURTS TO GRANT RELIEF "SUBJECT TO THE PRINCIPLES OF EQUITY"
(FN4)  IT WAS AWARE OF THE ALADDIN DECISION AND INTENDED TO PRESERVE
THE RULE OF THAT CASE.  OTHER PROVISIONS OF THE STATUTE SUPPORT THIS
VIEW OF THE UNDERLYING CONGRESSIONAL INTENT.  FOR EXAMPLE, THE ACT
PROVIDES: 

"IF THE COURT SHALL FIND THAT THE AMOUNT OF THE RECOVERY BASED ON
PROFITS IS EITHER INADEQUATE OR EXCESSIVE THE COURT MAY IN ITS
DISCRETION ENTER JUDGMENT FOR SUCH SUM AS THE COURT SHALL FIND TO BE
JUST, ACCORDING TO THE CIRCUMSTANCES OF THE CASE."  (FN5) 

ALLOWING THE COURT TO CONSIDER THE "CIRCUMSTANCES OF THE CASE" TO
ARRIVE AT THE AMOUNT OF THE JUDGMENT FOR THE PLAINTIFF HARDLY COMPORTS
WITH THE COURT'S VIEW THAT CONGRESS RIGIDLY LIMITED THE SCOPE OF
REMEDIES AVAILABLE IN TRADEMARK LITIGATION.  I CANNOT SAY, IN VIEW OF
THESE PROVISIONS, THAT CONGRESS INTENDED SUB SILENTIO TO OVERRULE THE
ALADDIN CASE.  (FN6) 

THE ARGUMENT THAT CONGRESS HAS DECLINED TO AMEND THE ACT TO PROVIDE
EXPLICITLY FOR COUNSEL FEES IS HARDLY DETERMINATIVE.  FOR CONGRESS CAN
BE ASSUMED TO HAVE KNOWN THAT THE FEDERAL COURTS WERE CONSISTENTLY
EXERCISING THE POWER TO AWARD COUNSEL FEES AFTER THE ACT'S PASSAGE. 
THE FAILURE TO AMEND THE STATUTE TO DO AWAY WITH THIS JUDICIAL POWER
SPEAKS AS LOUDLY FOR ITS RECOGNITION AS THE FAILURE TO PASS THE BILLS
REFERRED TO BY THE COURT SPEAKS FOR THE CONTRARY CONCLUSION. 

I RESPECTFULLY DISSENT. 

FN1  FOOTNOTES 4 AND 5 OF THE COURT'S OPINION, ANTE, PP. 715-716, SET
OUT THE COPIOUS AUTHORITY SUPPORTING THE POWER IN TRADEMARK LITIGATION
TO AWARD COUNSEL FEES IN APPROPRIATE CIRCUMSTANCES. 

FN2  THIS CASE DOES NOT INVOLVE THE "ADOPTION OF THE ENGLISH PRACTICE
IN THIS COUNTRY," BUT SIMPLY WHETHER THE ESTABLISHED AMERICAN PRACTICE
OF AWARDING COUNSEL FEES IN APPROPRIATE TRADEMARK CASES IS TO BE
REPUDIATED. 

FN3  SEE, ANTE, PP. 715-716, N. 4. 

FN4  SECTION 35 OF THE LANHAM ACT, 60 STAT. 439, 15 U.S.C. SEC 1117. 

FN5  IBID. 

FN6  THIS WAS THE REASONING OF THE DISTRICT COURT IN A. SMITH BOWMAN
DISTILLERY, INC. V. SCHENLEY DISTILLERS, INC., 204 F. SUPP. 374, 377: 

"MERE SILENCE AND INACTION BY CONGRESS CANNOT BE HELD TO HAVE
REPEALED WHAT HAS BEEN FOUND TO BE A WELL-ESTABLISHED JUDICIAL POWER. 
EVEN THOUGH THE LANHAM ACT MAY HAVE BEEN INTENDED TO BE AN INTEGRATED
AND COMPREHENSIVE SET OF RULES FOR TRADEMARK REGULATION AND LITIGATION
TO THE EXCLUSION OF ALL CONFLICTING RULES, THE RETENTION OF
DISCRETIONARY JUDICIAL POWER OVER THE FIXING OF COSTS DOES NOT SEEM
SUCH A THREAT OF INCONSISTENCY THAT IT SHOULD BE IMPLICATION BE HELD
PRE-EMPTED OR REPEALED BY THE ACT.  SOME MORE POSITIVE ACTION ON THE
PART OF THE LEGISLATURE IS NECESSARY TO INDICATE THE CONGRESSIONAL
INTENT TO REGULATE WHAT HAS LONG BEEN AN ORTHODOX JUDICIAL FUNCTION." 
(FOOTNOTE OMITTED.) 
..END :


















WALDRON V. MOORE-MCCORMACK 386 U.S. 724 


NO. 233.  ARGUED MARCH 13, 1967.  - DECIDED MAY 8, 1967.  - 356 F.2D
247, REVERSED AND REMANDED. 


PETITIONER, A SEAMAN INJURED ON RESPONDENT'S SHIP, WHO CONTENDED THAT
VESSEL WAS UNSEAWORTHY BECAUSE TOO FEW CREWMEN WERE ASSIGNED TO PERFORM
A SPECIFIC TASK IN A SAFE AND PRUDENT MANNER, HELD ENTITLED TO PRESENT
HIS THEORY OF UNSEAWORTHINESS TO THE JURY.  PP. 724-729. 

WALDRON V. MOORE-MCCORMACK LINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE SINGLE LEGAL QUESTION PRESENTED BY THIS CASE IS WHETHER A VESSEL
IS UNSEAWORTHY WHEN ITS OFFICERS ASSIGN TOO FEW CREWMEN TO PERFORM A
PARTICULAR TASK IN A SAFE AND PRUDENT MANNER.  IT IS TO RESOLVE THIS
QUESTION, WHICH THE LOWER COURTS ANSWERED IN THE NEGATIVE  (FN1)  AND
WHICH HAS CAUSED A CONFLICT AMONG CIRCUITS,  (FN2)  THAT WE GRANTED
CERTIORARI.  385 U.S. 810. 

PETITIONER, A MEMBER OF THE CREW OF RESPONDENT'S VESSEL S.S.
MORMACWIND, WAS ENGAGED WITH FOUR OTHER SEAMEN IN A DOCKING OPERATION
AT THE STERN OF THE VESSEL AS IT APPROACHED A PIER.  AT THE LAST
MINUTE, THE THIRD MATE, WHO WAS DIRECTING THE DOCKING, WAS INSTRUCTED
TO PUT OUT AN ADDITIONAL MOORING LINE, A HEAVY EIGHT-INCH ROPE, WHICH
WAS COMPLETELY COILED ON THE DECK.  THE MATE THEN ORDERED PETITIONER
AND ANOTHER CREWMAN TO UNCOIL THIS HEAVY ROPE AND CARRY IT 56 FEET TO
THE EDGE OF THE SHIP.  WHILE PETITIONER WAS UNCOILING A PORTION OF THE
ROPE TO CARRY IT TO THE EDGE OF THE SHIP, HE FELL AND INJURED HIS
BACK.  AT THE TRIAL, AS THE COURT OF APPEALS RECOGNIZED, "THERE WAS
EXPERT EVIDENCE TO THE EFFECT THAT 3 OR 4 MEN RATHER THAN 2 WERE
REQUIRED TO CARRY THE LINE IN ORDER TO CONSTITUTE 'SAFE AND PRUDENT
SEAMANSHIP.'"  356 F.2D 247, 248.  PETITIONER DID NOT CONTEND THAT THE
VESSEL AS A WHOLE WAS INSUFFICIENTLY MANNED OR THAT THERE WERE TOO FEW
MEN AT THE STERN ENGAGED IN THE OVERALL DOCKING OPERATION.  NEITHER DID
HE CONTEND THAT THE THIRD MATE OR THE SEAMAN ASSIGNED TO UNCOIL THE
ROPE WITH HIM WAS INCOMPETENT, OR THAT THE ROPE WAS ITSELF DEFECTIVE. 
HIS SOLE CONTENTION WAS THAT THE MATE'S ASSIGNMENT OF TWO MEN TO DO THE
WORK OF THREE OR FOUR CONSTITUTED NEGLIGENCE AND MADE THE VESSEL
UNSEAWORTHY.  THE DISTRICT COURT ALLOWED THE NEGLIGENCE ISSUE TO GO TO
THE JURY, WHICH FOUND FOR RESPONDENT, BUT GRANTED A DIRECTED VERDICT TO
RESPONDENT ON THE UNSEAWORTHINESS ISSUE, HOLDING THAT THE ABOVE FACTS
COULD NOT, AS A MATTER OF LAW, CONSTITUTE UNSEAWORTHINESS.  THE COURT
OF APPEALS, WITH ONE JUDGE DISSENTING, AFFIRMED, HOLDING: 

"IF SOMEONE IS INJURED SOLELY BY REASON OF AN ACT OR OMISSION ON THE
PART OF ANY MEMBER OF A CREW FOUND TO BE POSSESSED OF THE COMPETENCE OF
MEN OF HIS CALLING, THERE CAN BE NO RECOVERY UNLESS THE ACT OR OMISSION
IS PROVED TO BE NEGLIGENT."  356 F.2D, AT 251. 

IT IS HERE UNNECESSARY TO TRACE THE HISTORY OF THE JUDICIAL
DEVELOPMENT AND EXPANSION OF THE DOCTRINE OF UNSEAWORTHINESS.  THAT
TASK WAS RECENTLY PERFORMED IN MITCHELL V. TRAWLER RACER, INC., 362
U.S. 539, 543-549, WHERE THE COURT, REJECTING THE NOTION THAT A
SHIPOWNER IS LIABLE FOR TEMPORARY UNSEAWORTHINESS ONLY IF HE IS
NEGLIGENT, CONCLUDED:  "THERE IS NO SUGGESTION IN ANY OF THE DECISIONS
THAT THE DUTY IS LESS ONEROUS WITH RESPECT TO  ...  AN UNSEAWORTHY
CONDITION WHICH MAY BE ONLY TEMPORARY  ...  .  WHAT HAS EVOLVED IS A
COMPLETE DIVORCEMENT OF UNSEAWORTHINESS LIABILITY FROM CONCEPTS OF
NEGLIGENCE."  362 U.S., AT 549, 550.  IT IS THAT PRINCIPLE WHICH WE
CONCLUDE THE LOWER COURTS FAILED TO APPLY IN THEIR DECISIONS IN THIS
CASE. 

THE BASIC ISSUE HERE IS WHETHER THERE IS ANY JUSTIFICATION,
CONSISTENT WITH THE BROAD REMEDIAL PURPOSES OF THE DOCTRINE OF
UNSEAWORTHINESS, FOR DRAWING A DISTINCTION BETWEEN THE SHIP'S
EQUIPMENT, ON THE ONE HAND, AND ITS PERSONNEL, ON THE OTHER.  AS
REGARDS EQUIPMENT, THE CLASSIC CASE OF UNSEAWORTHINESS ARISES WHEN THE
VESSEL IS EITHER INSUFFICIENTLY OR DEFECTIVELY EQUIPPED.  (FN3)  IN
MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96, HOWEVER, THE COURT MADE IT
CLEAR THAT THE AVAILABILITY OF SAFE AND SUFFICIENT GEAR ON BOARD DOES
NOT PREVENT THE ACTUAL USE OF DEFECTIVE GEAR FROM CONSTITUTING
UNSEAWORTHINESS, FOR THE TEST OF SEAWORTHINESS IS TO BE APPLIED "WHEN
AND WHERE THE WORK IS TO BE DONE."  ID, AT 104.  AND IN CRUMADY V. THE
J.H. FISSER, 358 U.S. 423, WE FURTHER CLARIFIED THE EXTENT OF
UNSEAWORTHINESS LIABILITY BY HOLDING THAT, EVEN THOUGH THE EQUIPMENT
FURNISHED FOR THE PARTICULAR TASK IS ITSELF SAFE AND SUFFICIENT, ITS
MISUSE BY THE CREW RENDERS THE VESSEL UNSEAWORTHY.  WE EMPHATICALLY
STATED THE BASIS OF OUR HOLDING:  "UNSEAWORTHINESS EXTENDS NOT ONLY TO
THE VESSEL BUT TO THE CREW."  ID., AT 427.  FOR THAT PROPOSITION THE
COURT CITED BOUDOIN V. LYKES BROS. S.S. CO., 348 U.S. 336, WHERE WE
SAID, "WE SEE NO REASON TO DRAW A LINE BETWEEN THE SHIP AND THE GEAR ON
THE ONE HAND AND THE SHIP'S PERSONNEL ON THE OTHER."  ID., AT 339. 
(FN4) 

WE LIKEWISE SEE NO REASON TO DRAW THAT LINE HERE.  THAT BEING SO,
UNDER MAHNICH IT MAKES NO DIFFERENCE THAT RESPONDENT'S VESSEL WAS FULLY
MANNED OR THAT THERE WAS A SUFFICIENT COMPLEMENT OF SEAMEN ENGAGED IN
THE OVERALL DOCKING OPERATION, FOR THERE WERE TOO FEW MEN ASSIGNED
"WHEN AND WHERE" THE JOB OF UNCOILING THE ROPE WAS TO BE DONE.  (FN5)
AND UNDER CRUMADY IT MAKES NO DIFFERENCE THAT THE THIRD MATE AND TWO
MEN HE ASSIGNED TO PERFORM THE JOB WERE THEMSELVES COMPETENT SEAMEN, OR
THAT THE ROPE WAS ITSELF A SOUND PIECE OF GEAR.  BY ASSIGNING TOO FEW
MEN TO UNCOIL AND CARRY THE HEAVY ROPE, THE MATE CAUSED BOTH THE MEN
AND THE ROPE TO BE MISUSED. 

THIS ANALYSIS, WE BELIEVE, IS REQUIRED BY A CLEAR RECOGNITION OF THE
NEEDS OF THE SEAMAN FOR PROTECTION FROM DANGEROUS CONDITIONS BEYOND HIS
CONTROL AND THE ROLE OF THE UNSEAWORTHINESS DOCTRINE WHICH, BY SHIFTING
THE RISK TO THE SHIPOWNER, PROVIDES THAT PROTECTION.  IF PETITIONER HAD
BEEN ORDERED TO USE A DEFECTIVE PULLEY IN LIFTING THE ROPE, HE WOULD
CLEARLY BE PROTECTED BY THE DOCTRINE OF UNSEAWORTHINESS.  IF THE PULLEY
ITSELF WERE SOUND BUT PETITIONER HAD BEEN ORDERED TO LOAD TOO MUCH ROPE
ON IT, HE WOULD LIKEWISE BE PROTECTED.  IF FOUR MEN HAD BEEN ASSIGNED
TO UNCOIL THE ROPE BUT TWO OF THE MEN LACKED THE STRENGTH OF ORDINARY
EFFICIENT SEAMEN, PETITIONER WOULD AGAIN BE PROTECTED.  SHOULD THIS
PROTECTION BE DENIED MERELY BECAUSE THE SHIPOWNER, INSTEAD OF SUPPLYING
PETITIONER WITH UNSAFE GEAR, INSUFFICIENT GEAR, OR INCOMPETENT MANUAL
ASSISTANCE, ASSIGNED HIM INSUFFICIENT MANUAL ASSISTANCE?  WE THINK
NOT.  WHEN THIS COURT EXTENDED THE SHIPOWNER'S LIABILITY FOR
UNSEAWORTHINESS TO LONGSHOREMEN PERFORMING SEAMEN'S WORK, SEAS SHIPPING
CO. V. SIERACKI, 328 U.S. 85 - EITHER ON BOARD OR ON THE PIER,
GUTIERREZ V. WATERMAN SS CORP., 373 U.S. 206, EITHER WITH THE SHIP'S
GEAR OR THE STEVEDORE'S GEAR, ALASKA S.S. CO. V. PETTERSON, 347 U.S.
396, EITHER AS EMPLOYEES OF AN INDEPENDENT STEVEDORE OR AS EMPLOYEES OF
A SHIPOWNER PRO HAC VICE, REED V. THE YAKA, 373 U.S. 410 - WE NOTED
THAT "THE HAZARDS OF MARINE SERVICE, THE HELPLESSNESS OF THE MEN TO
WARD OFF THE PERILS OF UNSEAWORTHINESS, THE HARSHNESS OF FORCING THEM
TO SHOULDER THEIR LOSSES ALONE, AND THE BROAD RANGE OF THE
'HUMANITARIAN POLICY' OF THE DOCTRINE OF SEAWORTHINESS," ID., AT 413,
SHOULD PREVENT THE SHIPOWNER FROM DELEGATING, SHIFTING, OR ESCAPING HIS
DUTY BY USING THE MEN OR GEAR OF OTHERS TO PERFORM THE SHIP'S WORK.  BY
THE SAME TOKEN, THE SHIPOWNER SHOULD NOT BE ABLE TO ESCAPE LIABILITY
MERELY BECAUSE HE HAS USED MEN RATHER THAN MACHINES OR PHYSICAL
EQUIPMENT TO PERFORM THAT WORK. 

PETITIONER IS ENTITLED TO PRESENT HIS THRORY OF UNSEAWORTHINESS TO
THE JURY, AND THE CASE IS REVERSED AND REMANDED FOR THAT PURPOSE.  IT
IS SO ORDERED. 

FN1  356 F.2D 247. 

FN2  COMPARE AMERICAN PRESIDENT LINES, LTD. V. REDFERN, 345 F.2D 629,
WITH THE MAGDAPUR, 3 F. SUPP. 971; KOLERIS V. S.S. GOOD HOPE, 241 F.
SUPP. 967; AND THE INSTANT CASE.  OTHER CASES FROM THE THIRD, FOURTH,
FIFTH, AND NINTH CIRCUITS ALSO SEEM TO SUGGEST A RESULT DIFFERENT FROM
THE ONE REACHED IN THE INSTANT CASE.  SEE, E.G., FERRANTE V. SWEDISH
AMERICAN LINES, 331 F.2D 571, CERT. DISMISSED, 379 U.S. 801; THOMPSON
V. CALMAR S.S. CORP., 331 F.2D 657, CERT. DENIED, 379 U.S. 913;
HRONCICH V. AMERICAN PRESIDENT LINES, LTD., 334 F. D 282; SCOTT V.
ISBRANDTSEN CO., 327 F.2D 113; BLASSINGILL V. WATERMAN S.S. CORP., 336
F.2D 367; JUNE T., INC. V. KING, 290 F.2D 404.  FOR A CRITICAL
DISCUSSION OF THE DECISION BELOW, SEE 66 COL. L. REV. 1180(1966). 

FN3  SEE GENERALLY GILMORE & BLACK, THE LAW OF ADMIRALTY SEC 6-38 ET
SEQ.(1957). 

FN4  THIS STATEMENT, OF COURSE, WAS MADE IN THE CONTEXT OF OUR
HOLDING THAT UNSEAWORTHINESS RESULTS WHEN A MEMBER OF THE CREW IS "NOT
EQUAL IN DISPOSITION TO THE ORDINARY MEN OF THAT CALLING."   348 U.S.,
AT 340.  THAT IS SO, WE EXPLAINED, BECAUSE THE SHIPOWNER HAS A DUTY TO
PROVIDE A CREW "COMPETENT TO MEET THE CONTINGENCIES OF THE VOYAGE." 
IBID.  THE COURT OF APPEALS HERE RECOGNIZED THAT "THE VESSEL MUST BE
MANNED BY AN ADEQUATE AND PROPER NUMBER OF MEN," 356 F.2D, AT 251 (SEE,
E.G., DELIMA V. TRINIDAD CORP., 302 F. D 585; JUNE T., INC. V. KING,
290 F.2D 404), BUT THEN PROCEEDED TO DRAW A DISTINCTION BETWEEN A WELL
MANNED SHIP AND A WELL-MANNED OPERATION ABOARD THE SHIP. 

FN5  UNDER MITCHELL, IT MAKES NO DIFFERENCE THAT THE UNSEAWORTHY
CONDITION CAUSED BY INADEQUATE MANPOWER "MAY BE ONLY TEMPORARY."  362
U.S., AT 549.  SEE GENERALLY NOTE, 76 HARV. L. REV. 819(1963). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN,
AND MR. JUSTICE STEWART JOIN, DISSENTING. 

UNDER THE PREVAILING CASES IN THIS COURT, THERE CAN BE NO DOUBT THAT
A NEGLIGENT OR IMPROVIDENT ACT OF A COMPETENT OFFICER, CREWMAN, OR
LONGSHOREMAN CAN RESULT IN UNSEAWORTHINESS IF IT RENDERS OTHERWISE
SEAWORTHY EQUIPMENT UNFIT FOR THE PURPOSE FOR WHICH IT IS USED. 
CRUMADY V. THE J.H. FISSER, 358 U.S. 423.  LIKEWISE, PETITIONER ARGUES,
AN ORDER OF A SHIP'S OFFICER ASSIGNING TOO FEW MEN TO DO A PARTICULAR
TASK CREATES AN UNSEAWORTHY CONDITION BECAUSE THE SHIP IS UNDERMANNED
IN THIS SPECIFIC RESPECT.  HE CHALLENGES THEREFORE THE PREVAILING RULE
IN THE SECOND CIRCUIT REQUIRING PLAINTIFF IN SITUATIONS SUCH AS THIS TO
PROVE NOT ONLY THAT THE ORDER WAS IMPROVIDENT BUT ALSO THAT THE OFFICER
ISSUING IT WAS NOT EQUAL IN COMPETENCE TO ORDINARY MEN IN THE CALLING. 
SEE PINTO V. STATES MARINE CORP. OF DELAWARE, 296 F.2D 1; EZEKIEL V.
VOLUSIA S.S. CO., 297 F.2D 215, AND AUTHORITIES CITED THEREIN.  THE
MAJORITY AGREES WITH THE PETITIONER, AT LEAST WHERE THE IMPROVIDENT
ORDER REQUIRES THE PERFORMANCE OF TASKS WHOSE SAFE COMPLETION CALLS FOR
THE ASSIGNMENT OF MORE MEN.  THE MAJORITY HOLDS THAT THE CASE SHOULD
HAVE GONE TO THE JURY ON BOTH THE NEGLIGENCE AND UNSEAWORTHINESS
CLAIMS. 

IN MY VIEW, HOWEVER, THIS CASE SHOULD BE DISPOSED OF ON OTHER
GROUNDS.  WHILE IT IS TRUE THAT UNSEAWORTHINESS IS LEGALLY INDEPENDENT
OF NEGLIGENCE, MITCHELL V. TRAWLER RACER, INC., 362 U.S. 539, IT CANNOT
BE DENIED THAT IN MANY CASES UNSEAWORTHINESS AND NEGLIGENCE OVERLAP. 
AND ON THE FACTS OF THIS CASE I THINK THE CLAIM OF NEGLIGENCE WAS
IDENTICAL WITH THE CLAIM OF UNSEAWORTHINESS.  AS THE MAJORITY SAYS,
PETITIONER'S SOLE ASSERTION IS THAT ASSIGNING TWO MEN INSTEAD OF THREE
OR FOUR TO PUT OUT THE LINE WAS "NEGLIGENCE AND MADE THE VESSEL
UNSEAWORTHY."  THE TESTIMONY SUPPORTING THE CLAIM WAS THAT SAFE AND
PRUDENT SEAMANSHIP WOULD REQUIRE THREE OR FOUR MEN TO MOVE THE LINE. 
BUT THE JURY RULED AGAINST PETITIONER ON HIS NEGLIGENCE CLAIM, THEREBY
DECIDING THAT THE MATE EMPLOYED ORDINARY CARE IN ASSIGNING TWO MEN TO
DO THE TASK.  TO ME, THE JURY SIMPLY DISAGREED WITH PETITIONER'S
WITNESS AND, BASED ON THE TESTIMONY OF PETITIONER HIMSELF AND THAT OF
THE SEAMAN WHO HELPED HIM, DECIDED THAT IT WAS NOT IMPRUDENT SEAMANSHIP
TO HAVE TWO MEN MOVE THE LINE RATHER THAN THREE OR FOUR.  HAD THE JURY
THOUGHT OTHERWISE AND CONSIDERED THE JOB TO REQUIRE MORE THAN TWO MEN,
IT WOULD HAVE FOUND THE ISSUANCE OF THE ORDER TO BE A NEGLIGENT ACT. 
IT IS PERHAPS POSSIBLE TO CONCEIVE CIRCUMSTANCES IN WHICH THE
ASSIGNMENT OF TWO MEN TO DO THE JOB OF THREE WOULD NOT BE NEGLIGENCE,
BUT I FIND NO SUCH SPECIAL FACTS IN THIS RECORD.  IN MY VIEW, THE
ADVERSE VERDICT ON NEGLIGENCE MAKES UNNECESSARY A RETRIAL ON THE
UNSEAWORTHINESS CLAIM EVEN IF ONE ADOPTS THE MAJORITY'S RESOLUTION OF
THE LEGAL QUESTION PRESENTED BY PETITIONER. 
..END :















JACKSON V. LYKES STEAMSHIP CO. 386 U.S. 731 


NO. 575.  ARGUED APRIL 12, 1967.  - DECIDED MAY 8, 1967.  - 249 LA. 460,
187 SO. 2D 441, REVERSED AND REMANDED. 


A LONGSHOREMAN, EMPLOYED ON RESPONDENT'S SHIP IN NAVIGABLE WATERS,
DIED FROM INHALATION OF NOXIOUS GASES.  PETITIONER, HIS WIDOW, CLAIMED
THAT DEATH WAS CAUSED BY RESPONDENT'S NEGLIGENCE IN OPERATING THE SHIP
OR BY THE SHIP'S UNSEAWORTHINESS.  RESPONDENT'S MOTION TO DISMISS ON
THE GROUND THAT SEC 5 OF THE LONGSHOREMEN'S AND HARBOR WORKER'S
COMPENSATION ACT PROVIDED THE EXCLUSIVE REMEDY WAS SUSTAINED BY THE
LOUISIANA TRIAL COURT.  THE STATE APPELLATE COURT AFFIRMED AND THE
LOUISIANA SUPREME COURT DENIED CERTIORARI.  HELD:  A LONGSHOREMAN
EMPLOYED ON A SHIP, WHETHER BY AN INDEPENDENT STEVEDORING COMPANY OR BY
THE SHIPOWNER, CAN RECOVER FOR THE UNSEAWORTHINESS OF THE SHIP, REED V.
THE YAKA, 373 U.S. 410, AND THE JUDGMENT IS REVERSED AND REMANDED FOR
ADJUDICATION TO THE LOUISIANA COURTS, WHICH HAVE BROAD JURISDICTION OF
SUCH ADMIRALTY CASES.  PP. 733-736. 

JACKSON V. LYKES BROS. STEAMSHIP CO., INC. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

LUTHER JACKSON, EMPLOYED BY LYKES BROS. STEAMSHIP COMPANY, INHALED
NOXIOUS GASES AND DIED WHILE WORKING AS A LONGSHOREMAN ON A LYKES
VESSEL ON NAVIGABLE WATERS.  HIS WIDOW, HELEN JACKSON, FILED THIS
ACTION AGAINST LYKES IN THE LOUISIANA STATE TRIAL COURT CLAIMING THAT
HER HUSBAND'S DEATH WAS PROXIMATELY CAUSED EITHER BY LYKES' NEGLIGENCE
IN OPERATING THE SHIP OR BY THE SHIP'S UNSEAWORTHINESS.  LYKES MOVED TO
DISMISS ON THE GROUND THAT SEC 5 OF THE FEDERAL LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT PROVIDES THAT COMPENSATION BENEFITS
REQUIRED BY THAT ACT TO BE GIVEN BY AN EMPLOYER TO A LONGSHOREMAN OR
HIS REPRESENTATIVE FOR "INJURY OR DEATH" "SHALL BE EXCLUSIVE AND IN
PLACE OF ALL OTHER LIABILITY OF SUCH EMPLOYER TO THE EMPLOYEE."  (FN1)
THE TRIAL COURT, SUSTAINING LYKES' MOTION ON THE GROUND ASSIGNED IN IT,
DISMISSED PETITIONER'S SUIT AND THE STATE COURT OF APPEAL, FOURTH
CIRCUIT, AFFIRMED.  185 SO. 2D 342.  THE SUPREME COURT OF LOUISIANA
FINDING "NO ERROR OF LAW," DENIED A WRIT OF CERTIORARI.  249 LA. 460,
187 SO. 2D 441.  WE GRANTED CERTIORARI BECAUSE IT APPEARED THAT, IN
DECIDING AS THEY DID, THE LOUISIANA COURTS HAD FAILED TO FOLLOW OUR
HOLDING IN REED V. THE YAKA, 373 U.S. 410.  (FN2) 

THE CRUCIAL FACTS IN REED V. THE YAKA ARE STRIKINGLY SIMILAR TO THOSE
IN THE PRESENT CASE.  REED, A LONGSHOREMAN, COVERED BY THE FEDERAL
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, WAS INJURED WHILE
LOADING A SHIP.  THE SHIP WAS OWNED BY THE WATERMAN STEAMSHIP
CORPORATION BUT WAS BEING OPERATED BY A BARE-BOAT CHARTERER AS OWNER
PRO HAC VICE WHICH HAD DIRECTLY EMPLOYED REED TO WORK ON THE SHIP AS A
LONGSHOREMAN.  WHEN REED FILED HIS SUIT FOR DAMAGES IN REM AGAINST THE
SHIP, THE SHIP DEFENDED ON THE GROUND THAT REED BEING A LONGSHOREMAN
COULD NOT BRING A PERSONAL ACTION AGAINST THE EMPLOYER-OWNER PRO HAC
VICE BECAUSE OF THE ACT'S EXCLUSIVE RECOVERY FEATURES AND CONSEQUENTLY
HE COULD NOT SUE THE SHIP.  WE REJECTED THIS CONTENTION ON THE EXPRESS
GROUND THAT REED COULD SUE THE OWNER PRO HAC VICE PERSONALLY DESPITE
THE ACT AND DESPITE THE FACT THAT THE OWNER PRO HAC VICE WAS HIS
EMPLOYER. 

WE HELD IN YAKA THAT A LONGSHOREMAN EMPLOYED BY A SHIPOWNER AS A
LONGSHOREMAN COULD SUE THE OWNER FOR THE SHIP'S UNSEAWORTHINESS.  IN
DOING SO WE POINTED OUT THAT IN SEAS SHIPPING CO. V. SIERACKI, 328 U.S.
85,  (FN3)  AND OTHER CASES FOLLOWING IT, A GROUP OF MARITIME WORKERS,
INCLUDING STEVEDORES, CARPENTERS, AND LONGSHOREMEN, ALTHOUGH EMPLOYED
BY AN INDEPENDENT CONTRACTOR TO WORK ON THE SHIP, WERE ALLOWED TO SUE
THE OWNER FOR UNSEAWORTHINESS OF ITS SHIP.  (FN4)  WE ALSO POINTED OUT
IN YAKA THAT IN RYAN STEVEDORING CO. V. PAN-ATLANTIC STEAMSHIP CORP.,
350 U.S. 124, THIS COURT HAD PERMITTED A SHIPOWNER, SUED BY A
LONGSHOREMAN WHO HAD BEEN DIRECTLY HIRED BY AN INDEPENDENT STEVEDORE
EMPLOYER UNDER THESE CIRCUMSTANCES, TO BRING AN ACTION OVER AND RECOVER
FROM THE INDEPENDENT STEVEDORE EMPLOYER DESPITE THE FACT THAT THE
LIABILITY OF THE STEVEDORE EMPLOYER UNDER THE ACT "SHALL BE EXCLUSIVE
AND IN PLACE OF ALL OTHER LIABILITY."  YAKA ALSO STRESSED THE FACT THAT
THE TRADITIONAL HUMANITARIAN REMEDY FOR UNSEAWORTHINESS WAS NOT TO BE
DESTROYED BY THE KIND OF EMPLOYMENT CONTRACT THAT A SHIPOWNER MADE WITH
THE PEOPLE WHO WORKED ON THE SHIP. 

IN THIS CASE AS IN YAKA, THE FACT THAT THE LONGSHOREMAN WAS HIRED
DIRECTLY BY THE OWNER INSTEAD OF BY THE INDEPENDENT STEVEDORE COMPANY
MAKES NO DIFFERENCE AS TO THE LIABILITY OF THE SHIP OR ITS OWNER.  IN
THE FINAL ANALYSIS THE CONTENTION HERE AGAINST RECOVERY AS IN YAKA IS
THAT THE LONGSHOREMAN WHO IS EMPLOYED TO WORK ON A SHIP BY AN
INDEPENDENT STEVEDORE COMPANY INSTEAD OF THE SHIPOWNER CAN RECOVER FOR
THE UNSEAWORTHINESS OF THE VESSEL, BUT A LONGSHOREMAN HIRED BY THE SAME
SHIPOWNER TO DO EXACTLY THE SAME KIND OF WORK ON AN UNSEAWORTHY SHIP
CANNOT RECOVER.  WE REJECT THIS CONTENTION AS WE DID BEFORE.  (FN5)  WE
CANNOT ACCEPT SUCH A CONSTRUCTION OF THE ACT - AN ACT DESIGNED TO
PROVIDE EQUAL JUSTICE TO EVERY LONGSHOREMAN SIMILARLY SITUATED.  WE
CANNOT HOLD THAT CONGRESS INTENDED ANY SUCH INCONGRUOUS, ABSURD, AND
UNJUST RESULT IN PASSING THIS ACT. 

WE ADHERE TO YAKA AND HOLD THAT THE LOUISIANA COURTS COMMITTED ERROR
IN DISMISSING PETITIONER'S CLAIM.  LOUISIANA COURTS HAVE BROAD
JURISDICTION OF ADMIRALTY CASES SUCH AS THIS AND HAVE FREQUENTLY
EXERCISED IT.  IN THIS SITUATION IT IS THE DUTY OF THE LOUISIANA COURTS
TO ADJUDICATE THIS CASE.  THE JUDGMENT IS REVERSED AND REMANDED FOR
TRIAL AND FURTHER PROCEEDINGS IN THE LOUISIANA COURTS NOT INCONSISTENT
WITH THIS OPINION.  TESTA V. KATT, 330 U.S. 386; MONDOU V. NEW YORK,
N.H.&H.R. CO., 223 U.S. 1; CLAFLIN V. HOUSEMAN, 93 U.S. 130.  SEE
GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239.  IT IS SO ORDERED. 

FN1  44 STAT. 1426, AS SET FORTH IN 33 U.S.C. SEC 905, PROVIDES: 

"THE LIABILITY OF AN EMPLOYER PRESCRIBED IN SECTION 904 OF THIS TITLE
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  ...  ." 

U.S.C. SEC 933, ALSO PROVIDES COMPENSATION FOR INJURIES WHERE THIRD
PERSONS ARE LIABLE: 

"(A)  IF ON ACCOUNT OF DISABILITY OR DEATH FOR WHICH COMPENSATION IS
PAYABLE UNDER THIS CHAPTER THE PERSON ENTITLED TO SUCH COMPENSATION
DETERMINES THAT SOME PERSON OTHER THAN THE EMPLOYER OR A PERSON OR
PERSONS IN HIS EMPLOY IS LIABLE IN DAMAGES, HE NEED NOT ELECT WHETHER
TO RECEIVE SUCH COMPENSATION OR TO RECOVER DAMAGES AGAINST SUCH THIRD
PERSON." 

FN2  THE COURT OF APPEAL, FOURTH CIRCUIT, AFFIRMED THE LOWER COURT'S
DISMISSAL.  THAT COURT, CONSTRUING OUR RECENT OPINION IN REED V. THE
YAKA, 373 U.S. 410, AS PERMITTING ONLY AN ACTION AGAINST A VESSEL OWNED
BY AN EMPLOYER, CONCLUDED THAT THE EXCLUSIVE REMEDY PROVISIONS OF THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT PRECLUDED
PETITIONER FROM BRINGING A PERSONAL ACTION AGAINST THE SHIPOWNER
EMPLOYER.  IN SO HOLDING THE COURT OF APPEAL, FOURTH CIRCUIT, STATED: 

"AN ANALYSIS OF THE YAKA CASE REVEALS LANGUAGE WHICH SUGGESTS THAT AN
IN PERSONAM REMEDY MAY BE AVAILABLE; THE ANALYSIS LIKEWISE REVEALS THAT
THERE EXISTS REASON FOR BELIEVING THAT THE SECTION OF THE
LONGSHOREMEN'S AND HARBOR WORKERS' ACT REFERRED TO HEREINABOVE HAS BEEN
TAKEN UPON THE JUDICIAL ANVIL AND HAMMERED INTO AN UNEXPECTED SHAPE. 

"IN ANY EVENT, WE ARE OF THE OPINION THAT IT EXEMPLIFIES MORE
JUDICIAL INTEGRITY TO CONCLUDE THAT THE RATIONALE EMANATING FROM YAKA
MERELY PERMITS A LONGSHOREMAN TO BRING AN ACTION IN REM AGAINST HIS
EMPLOYER IN THE FEDERAL COURT."  185 SO. 2D, AT 345. 

FN3  SIERACKI EXTENDED THE DOCTRINE OF SEAWORTHINESS TO A
LONGSHOREMAN, EVEN THOUGH THE LONGSHOREMAN WAS NOT A MEMBER OF THE
CREW, AND IN SPITE OF THE FACT THAT THE LONGSHOREMAN WAS ENTITLED TO
COMPENSATION BENEFITS UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT. 

FN4  IN 1953 THIS COURT HELD IN POPE & TALBOT, INC. V. HAWN, 346 U.S.
406, THAT OTHER KINDS OF MARITIME EMPLOYEES, BESIDES STEVEDORES, WHO
PERFORMED JOBS FORMERLY DONE BY SEAMEN WERE ENTITLED TO THE
SEAWORTHINESS PROTECTION GIVEN IN SIERACKI.  THERE WE SAID: 

"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."  346 U.S., AT 412-413. 

SUBSEQUENT DECISIONS IN LINE WITH THE GENERAL CONCEPTS PUT FORTH BY
THIS COURT HAVE READ SIERACKI EXPANSIVELY, AND A WIDE RANGE OF MARITIME
EMPLOYEES HAVE BEEN GRANTED THE BENEFITS OF THE SEAWORTHINESS
DOCTRINE.  CARPENTERS (POPE & TALBOT, INC. V. HAWN, 346 U.S. 406);
ELECTRICIANS (FEINMAN V. A.H. BULL S.S. CO., 216 F.2D 393);
SHIPCLEANERS (TORRES V. THE KASTOR, 227 F.2D 664, AND CRAWFORD V. POPE
& TALBOT, INC., 206 F. D 784); REPAIRMEN (READ V. UNITED STATES, 201
F.2D 758); AND RIGGERS (AMEROCEAN S.S. CO. V. COPP, 245 F.2D 291), WHO
PERFORMED JOBS FORMERLY DONE BY SEAMEN, HAVE RECOVERED FROM SHIPOWNERS
ON THE SEAWORTHINESS DOCTRINE.  SEE NOTE, 75 YALE L.J. 1174, 1183. 

FN5  REED V. THE YAKA, 373 U.S., AT 415: 

"WE THINK IT WOULD PRODUCE A HARSH AND INCONGRUOUS RESULT, ONE OUT OF
KEEPING WITH THE DOMINANT INTENT OF CONGRESS TO HELP LONGSHOREMEN, TO
DISTINGUISH BETWEEN LIABILITY TO LONGSHOREMEN INJURED UNDER PRECISELY
THE SAME CIRCUMSTANCES BECAUSE SOME DRAW THEIR PAY DIRECTLY FROM A
SHIPOWNER AND OTHERS FROM A STEVEDORING COMPANY DOING THE SHIP'S
SERVICE.  PETITIONER'S NEED FOR PROTECTION FROM UNSEAWORTHINESS WAS
NEITHER MORE NOR LESS THAN THAT OF A LONGSHOREMAN WORKING FOR A
STEVEDORING COMPANY." 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

LUTHER JACKSON WAS A LONGSHOREMAN.  HE DIED FROM INJURIES RECEIVED IN
THE COURSE OF HIS EMPLOYMENT.  A FEDERAL LAW CLEARLY IMPOSES AN
ABSOLUTE OBLIGATION UPON HIS EMPLOYER TO PAY COMPENSATION TO HIS
WIDOW.  (FN1)  THE LAW'S HUMANITARIAN PURPOSE IS TO ENSURE THAT ALL
SHALL BE COMPENSATED, REGARDLESS OF THE EMPLOYER'S FAULT.  THAT LAW
JUST AS CLEARLY PROVIDES THAT THE EMPLOYER'S STATUTORY OBLIGATION TO
PAY THIS COMPENSATION "SHALL BE EXCLUSIVE AND IN PLACE OF ALL OTHER
LIABILITY  ...  AT LAW OR IN ADMIRALTY."  (FN2)  NONETHELESS, JACKSON'S
WIDOW BROUGHT THIS ADMIRALTY ACTION AGAINST HIS EMPLOYER IN LOUISIANA. 
THE STATE COURTS DISMISSED THE ACTION, HOLDING THAT THE FEDERAL LAW
MEANS WHAT IT SAYS. 

THE COURT TODAY HOLDS THAT THIS FEDERAL LAW CANNOT MEAN WHAT IT SAYS,
BECAUSE THIS WOULD LEAD TO AN "INCONGRUOUS, ABSURD, AND UNJUST
RESULT."  THE COURT SAYS THAT THE RESULT IT REACHES IS DICTATED BY ITS
PRIOR DECISION IN REED V. THE YAKA, 373 U.S. 410.  THE LOUISIANA COURTS
THOUGHT THAT THE YAKA CASE, WHICH INVOLVED THE INTERVENTION OF A THIRD
PARTY, WAS DISTINGUISHABLE, AND SO DO I. BUT IN ANY EVENT I WOULD
DECIDE THIS CASE ON ITS OWN FACTS UNDER THE LAW AS IT WAS CLEARLY
WRITTEN BY CONGRESS. 

CONGRESS, IN SETTING UP A FEDERAL SYSTEM OF WORKMEN'S COMPENSATION
FOR LONGSHOREMEN, IMPOSING LIABILITY WITHOUT FAULT UPON EMPLOYERS,
PROVIDED THAT THIS SHOULD BE THE EXCLUSIVE REMEDY AGAINST THE EMPLOYER
HIMSELF.  I CANNOT AGREE THAT THE LAW CONGRESS PASSED IS EITHER
"INCONGRUOUS," "ABSURD," OR "UNJUST."  IF IT IS, THEN SO ARE THE
WORKMEN'S COMPENSATION LAWS OF 49 STATES, ALL OF WHICH CONTAIN THE SAME
BASIC PROVISION.  (FN3) 

BUT EVEN IF I COULD AGREE WITH THE COURT'S CHARACTERIZATION OF THE
LAW THAT CONGRESS HAS WRITTEN, I COULD NEVER AGREE WITH THE COURT'S
JUDGMENT.  IT IS OUR DUTY TO APPLY THE LAW, NOT TO REPEAL IT. 

I RESPECTFULLY DISSENT. 

FN1  LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, SECS 4, 9,
44 STAT. 1426, 1429, 33 U.S.C. SECS 904, 909. 

FN2  ID., SEC 5, 44 STAT. 1426, 33 U.S.C. SEC 905. 

FN3  SEE 1 SCHNEIDER, WORKMEN'S COMPENSATION SECS 89-154 (3D ED.). 
..END :

















ANDERS V. CALIFORNIA 386 U.S. 738 


NO. 98.  ARGUED MARCH 14, 1967.  - DECIDED MAY 8, 1967.  - REVERSED AND
REMANDED. 


COUNSEL, APPOINTED BY A CALIFORNIA APPELLATE COURT ON PETITIONER'S
MOTION TO PROSECUTE THE APPEAL OF HIS FELONY CONVICTION, CONCLUDED
AFTER STUDYING THE RECORD AND CONSULTING WITH PETITIONER, THAT THERE
WAS NO MERIT TO THE APPEAL AND SO ADVISED THE COURT.  HE ALSO ADVISED
IT THAT PETITIONER WISHED TO FILE A BRIEF IN HIS BEHALF.  PETITIONER'S
REQUEST FOR ANOTHER ATTORNEY WAS DENIED.  HE THEN FILED A BRIEF PRO SE
AND A REPLY BRIEF TO THE STATE'S RESPONSE.  THE APPELLATE COURT, AFTER
EXAMINING THE RECORD, AFFIRMED THE CONVICTION.  SIX YEARS LATER,
PETITIONER, SEEKING TO REOPEN HIS CASE ON THE GROUND THAT HE HAD BEEN
DEPRIVED OF THE RIGHT TO COUNSEL ON HIS APPEAL, FILED IN THE APPELLATE
COURT AN APPLICATION FOR HABEAS CORPUS, WHICH THE COURT DENIED THE SAME
DAY.  THE COURT STATED THAT IT HAD AGAIN REVIEWED THE RECORD AND
DETERMINED THE APPEAL TO BE "WITHOUT MERIT" (BUT FAILED TO SAY WHETHER
IT WAS FRIVOLOUS OR NOT) AND THAT THE PROCEDURE HERE FOLLOWED THE
CALIFORNIA SYSTEM FOR HANDLING INDIGENTS' APPEALS APPROVED BY THAT
STATE'S SUPREME COURT AS MEETING THE REQUIREMENTS OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353.  CLAIMING, INTER ALIA, THAT THE JUDGE AND
PROSECUTOR HAD ERRONEOUSLY COMMENTED ON HIS FAILURE TO TESTIFY,
PETITIONER FILED WITH THE STATE SUPREME COURT AN APPLICATION FOR HABEAS
CORPUS, WHICH THAT COURT DENIED WITHOUT GIVING ANY REASON FOR ITS
DECISION.  HELD:  THE FAILURE TO GRANT THIS INDIGENT PETITIONER SEEKING
INITIAL REVIEW OF HIS CONVICTION THE SERVICES OF AN ADVOCATE, AS
CONTRASTED WITH AN AMICUS CURIAE, WHICH WOULD HAVE BEEN AVAILABLE TO AN
APPELLANT WITH FINANCIAL MEANS, VIOLATED PETITIONER'S RIGHTS TO FAIR
PROCEDURE AND EQUALITY UNDER THE FOURTEENTH AMENDMENT.  PP. 741-745. 

(A)  THIS COURT HAS CONSISTENTLY HELD INVALID THOSE PROCEDURES ON THE
FIRST APPEAL OF A CONVICTION WHERE THE RICH MAN WHO APPEALS AS OF RIGHT
ENJOYS THE FULL BENEFITS OF COUNSEL WHILE THE INDIGENT "IS FORCED TO
SHIFT FOR HIMSELF."  DOUGLAS V. CALIFORNIA, SUPRA, AT 358.  P. 741. 

(B)  THE SIXTH AMENDMENT'S REQUIREMENTS FOR THE RIGHT TO COUNSEL ARE
MADE OBLIGATORY UPON THE STATES BY THE FOURTEENTH AMENDMENT.  GIDEON V.
WAINWRIGHT, 372 U.S. 335.  P. 742. 

(C)  COUNSEL'S BARE NO-MERIT CONCLUSION WAS NOT AN ADEQUATE
SUBSTITUTE FOR PETITIONER'S RIGHT TO FULL APPELLATE REVIEW.  TO SATISFY
THE REQUIREMENT OF SUBSTANTIAL EQUALITY AND FAIR PROCESS COUNSEL MUST
BE AN ACTIVE ADVOCATE, NOT JUST AN AMICUS CURIAE.  PP. 742-743. 

(D)  IF COUNSEL CONSCIENTIOUSLY DECIDES THAT THE APPEAL IS WHOLLY
FRIVOLOUS HE SHOULD SO ADVISE THE COURT AND REQUEST PERMISSION TO
WITHDRAW, AT THE SAME TIME FURNISHING THE COURT AND THE INDIGENT WITH A
BRIEF OF ANYTHING IN THE RECORD ARGUABLY SUPPORTING THE APPEAL.  P.
744. 

(E)  IF AFTER FULL REVIEW THE COURT FINDS ANY LEGAL POINTS ARGUABLE
IT MUST APPOINT COUNSEL TO ARGUE THE APPEAL; OTHERWISE IT MAY DISMISS
THE APPEAL AS FAR AS FEDERAL REQUIREMENTS ARE CONCERNED OR DECIDE THE
CASE ON THE MERITS IF STATE LAW REQUIRES.  P. 744. 

ANDERS V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

WE ARE HERE CONCERNED WITH THE EXTENT OF THE DUTY OF A COURT
APPOINTED APPELLATE COUNSEL TO PROSECUTE A FIRST APPEAL FROM A CRIMINAL
CONVICTION, AFTER THAT ATTORNEY HAS CONSCIENTIOUSLY DETERMINED THAT
THERE IS NO MERIT TO THE INDIGENT'S APPEAL. 

AFTER HE WAS CONVICTED OF THE FELONY OF POSSESSION OF MARIJUANA,
PETITIONER SOUGHT TO APPEAL AND MOVED THAT THE CALIFORNIA DISTRICT
COURT OF APPEAL APPOINT COUNSEL FOR HIM.  SUCH MOTION WAS GRANTED;
HOWEVER, AFTER A STUDY OF THE RECORD AND CONSULTATION WITH PETITIONER,
THE APPOINTED COUNSEL CONCLUDED THAT THERE WAS NO MERIT TO THE APPEAL. 
HE SO ADVISED THE COURT BY LETTER AND, AT THE SAME TIME, INFORMED THE
COURT THAT PETITIONER WISHED TO FILE A BRIEF IN HIS OWN BEHALF.  AT
THIS JUNCTURE, PETITIONER REQUESTED THE APPOINTMENT OF ANOTHER
ATTORNEY.  THIS REQUEST WAS DENIED AND PETITIONER PROCEEDED TO FILE HIS
OWN BRIEF PRO SE.  THE STATE RESPONDED AND PETITIONER FILED A REPLY
BRIEF.  ON JANUARY 9, 1959, THE DISTRICT COURT OF APPEAL UNANIMOUSLY
AFFIRMED THE CONVICTION, PEOPLE V. ANDERS, 167 CAL. APP. 2D 65, 333
P.2D 854. 

ON JANUARY 21, 1965, PETITIONER FILED AN APPLICATION FOR A WRIT OF
HABEAS CORPUS IN THE DISTRICT COURT OF APPEAL IN WHICH HE SOUGHT TO
HAVE HIS CASE REOPENED.  IN THAT APPLICATION HE RAISED THE ISSUE OF
DEPRIVATION OF THE RIGHT TO COUNSEL IN HIS ORIGINAL APPEAL BECAUSE OF
THE COURT'S REFUSAL TO APPOINT COUNSEL AT THE APPELLATE STAGE OF THE
PROCEEDINGS.  (FN1)  THE COURT DENIED THE APPLICATION ON THE SAME DAY,
IN A BRIEF UNREPORTED MEMORANDUM OPINION.  THE COURT STATED THAT IT
"HAD AGAIN REVIEWED THE RECORD AND HAD DETERMINED THE APPEAL TO BE
WITHOUT MERIT."  THE COURT ALSO STATED THAT "THE PROCEDURE PRESCRIBED
BY IN RE NASH, 61 A.C. 538, WAS FOLLOWED IN THIS CASE  ...  ."   (FN2)
ON JUNE 25, 1965, PETITIONER SUBMITTED A PETITION FOR A WRIT OF HABEAS
CORPUS TO THE SUPREME COURT OF CALIFORNIA, AND THE PETITION WAS DENIED
WITHOUT OPINION BY THAT COURT ON JULY 14, 1965.  AMONG OTHER TRIAL
ERRORS, PETITIONER CLAIMED THAT BOTH THE JUDGE AND THE PROSECUTOR HAD
COMMENTED ON HIS FAILURE TO TESTIFY CONTRARY TO THE HOLDING OF THIS
COURT IN GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965).  WE HAVE CONCLUDED
THAT CALIFORNIA'S ACTION DOES NOT COMPORT WITH FAIR PROCEDURE AND LACKS
THAT EQUALITY THAT IS REQUIRED BY THE FOURTEENTH AMENDMENT. 

                                         I. 

FOR A DECADE OR MORE, A CONTINUING LINE OF CASES HAS REACHED THIS
COURT CONCERNING DISCRIMINATION AGAINST THE INDIGENT DEFENDANT ON HIS
FIRST APPEAL.  BEGINNING WITH GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956)
WHERE IT WAS HELD THAT EQUAL JUSTICE WAS NOT AFFORDED AN INDIGENT
APPELLANT WHERE THE NATURE OF THE REVIEW "DEPENDS ON THE AMOUNT OF
MONEY HE HAS," AT 19, AND CONTINUING THROUGH DOUGLAS V. CALIFORNIA, 372
U.S. 353 (1963), THIS COURT HAS CONSISTENTLY HELD INVALID THOSE
PROCEDURES "WHERE THE RICH MAN, WHO APPEALS AS OF RIGHT, ENJOYS THE
BENEFIT OF COUNSEL'S EXAMINATION INTO THE RECORD, RESEARCH OF THE LAW,
AND MARSHALLING OF ARGUMENTS ON HIS BEHALF, WHILE THE INDIGENT, ALREADY
BURDENED BY A PRELIMINARY DETERMINATION THAT HIS CASE IS WITHOUT MERIT,
IS FORCED TO SHIFT FOR HIMSELF."  AT 358.  INDEED, IN THE FEDERAL
COURTS, THE ADVICE OF COUNSEL HAS LONG BEEN REQUIRED WHENEVER A
DEFENDANT CHALLENGES A CERTIFICATION THAT AN APPEAL IS NOT TAKEN IN
GOOD FAITH, JOHNSON V.  UNITED STATES, 352 U.S. 565 (1957), AND SUCH
REPRESENTATION MUST BE IN THE ROLE OF AN ADVOCATE, ELLIS V. UNITED
STATES, 356 U.S. 674, 675 (1958), RATHER THAN AS AMICUS CURIAE.  IN
ELLIS, SUPRA, WE CONCLUDED: 

"IF COUNSEL IS CONVINCED, AFTER CONSCIENTIOUS INVESTIGATION, THAT THE
APPEAL IS FRIVOLOUS, OF COURSE, HE MAY ASK TO WITHDRAW ON THAT
ACCOUNT.  IF THE COURT IS SATISFIED THAT COUNSEL HAS DILIGENTLY
INVESTIGATED THE POSSIBLE GROUNDS OF APPEAL, AND AGREES WITH COUNSEL'S
EVALUATION OF THE CASE, THEN LEAVE TO WITHDRAW MAY BE ALLOWED AND LEAVE
TO APPEAL MAY BE DENIED."  AT 675. 

IN GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), THE SIXTH AMENDMENT'S
REQUIREMENT THAT "THE ACCUSED SHALL ENJOY THE RIGHT  ...  TO HAVE THE
ASSISTANCE OF COUNSEL FOR HIS DEFENCE" WAS MADE OBLIGATORY ON THE
STATES BY THE FOURTEENTH AMENDMENT, THE COURT HOLDING THAT "IN OUR
ADVERSARY SYSTEM OF CRIMINAL JUSTICE, ANY PERSON HALED INTO COURT, WHO
IS TOO POOR TO HIRE A LAWYER, CANNOT BE ASSURED A FAIR TRIAL UNLESS
COUNSEL IS PROVIDED FOR HIM."  AT 344.  WE CONTINUE TO ADHERE TO THESE
PRINCIPLES. 

                      II. 

IN PETITIONER'S CASE, HIS APPOINTED COUNSEL WROTE THE DISTRICT COURT
OF APPEAL, STATING: 

"I WILL NOT FILE A BRIEF ON APPEAL AS I AM OF THE OPINION THAT THERE
IS NO MERIT TO THE APPEAL.  I HAVE VISITED AND COMMUNICATED WITH MR.
ANDERS AND HAVE EXPLAINED MY VIEWS AND OPINIONS TO HIM  ... .  HE
WISHES TO FILE A BRIEF IN THIS MATTER ON HIS OWN BEHALF." 

THE DISTRICT COURT OF APPEAL, AFTER HAVING EXAMINED THE RECORD,
AFFIRMED THE CONVICTION.  WE BELIEVE THAT COUNSEL'S BARE CONCLUSION, AS
EVIDENCED BY HIS LETTER, WAS NOT ENOUGH.  IT SMACKS OF THE TREATMENT
THAT ESKRIDGE RECEIVED, WHICH THIS COURT CONDEMNED, THAT PERMITTED A
TRIAL JUDGE TO WITHHOLD A TRANSCRIPT IF HE FOUND THAT A DEFENDANT "HAS
BEEN ACCORDED A FAIR AND IMPARTIAL TRIAL, AND IN THE COURT'S OPINION NO
GRAVE OR PREJUDICIAL ERRORS OCCURRED THEREIN."  ESKRIDGE V. WASHINGTON
STATE BOARD, 357 U.S. 214, 215 (1958).  SUCH A PROCEDURE, THIS COURT
SAID, "CANNOT BE AN ADEQUATE SUBSTITUTE FOR THE RIGHT TO FULL APPELLATE
REVIEW AVAILABLE TO ALL DEFENDANTS" WHO MAY NOT BE ABLE TO AFFORD SUCH
AN EXPENSE.  AT 216.  AND IN STILL ANOTHER CASE IN WHICH "A STATE
OFFICER OUTSIDE THE JUDICIAL SYSTEM" WAS GIVEN THE POWER TO DEPRIVE AN
INDIGENT OF HIS APPEAL BY REFUSING TO ORDER A TRANSCRIPT MERELY BECAUSE
HE THOUGHT THE "APPEAL WOULD BE UNSUCCESSFUL," WE REVERSED, FINDING
THAT SUCH A PROCEDURE DID NOT MEET CONSTITUTIONAL STANDARDS.  LANE V.
BROWN, 372 U.S. 477 (1963).  HERE THE COURT-APPOINTED COUNSEL HAD THE
TRANSCRIPT BUT REFUSED TO PROCEED WITH THE APPEAL BECAUSE HE FOUND NO
MERIT IN IT.  HE FILED A NO-MERIT LETTER WITH THE DISTRICT COURT OF
APPEAL WHEREUPON THE COURT EXAMINED THE RECORD ITSELF AND AFFIRMED THE
JUDGMENT.  ON A PETITION FOR A WRIT OF HABEAS CORPUS SOME SIX YEARS
LATER IT FOUND THE APPEAL HAD NO MERIT.  IT FAILED, HOWEVER, TO SAY
WHETHER IT WAS FRIVOLOUS OR NOT, BUT, AFTER CONSIDERATION, SIMPLY FOUND
THE PETITION TO BE "WITHOUT MERIT."  THE SUPREME COURT, IN DISMISSING
THIS HABEAS CORPUS APPLICATION, GAVE NO REASON AT ALL FOR ITS DECISION
AND SO WE DO NOT KNOW THE BASIS FOR ITS ACTION.  WE CANNOT SAY THAT
THERE WAS A FINDING OF FRIVOLITY BY EITHER OF THE CALIFORNIA COURTS OR
THAT COUNSEL ACTED IN ANY GREATER CAPACITY THAN MERELY AS AMICUS CURIAE
WHICH WAS CONDEMNED IN ELLIS, SUPRA.  HENCE CALIFORNIA'S PROCEDURE DID
NOT FURNISH PETITIONER WITH COUNSEL ACTING IN THE ROLE OF AN ADVOCATE
NOR DID IT PROVIDE THAT FULL CONSIDERATION AND RESOLUTION OF THE MATTER
AS IS OBTAINED WHEN COUNSEL IS ACTING IN THAT CAPACITY.  THE NECESSITY
FOR COUNSEL SO ACTING IS HIGHLIGHTED BY THE POSSIBLE DISADVANTAGE THE
PETITIONER SUFFERED HERE.  IN HIS PRO SE BRIEF, WHICH WAS FILED IN
1959, HE URGED SEVERAL TRIAL ERRORS BUT FAILED TO RAISE THE POINT THAT
BOTH THE JUDGE AND THE PROSECUTOR HAD COMMENTED TO THE JURY REGARDING
PETITIONER'S FAILURE TO TESTIFY.  IN 1965, THIS COURT IN GRIFFIN V.
CALIFORNIA, SUPRA, OUTLAWED CALIFORNIA'S COMMENT RULE, AS EMBODIED IN
ART. I, SEC 13, OF THE CALIFORNIA CONSTITUTION. 

                                         III. 

THE CONSTITUTIONAL REQUIREMENT OF SUBSTANTIAL EQUALITY AND FAIR
PROCESS CAN ONLY BE ATTAINED WHERE COUNSEL ACTS IN THE ROLE OF AN
ACTIVE ADVOCATE IN BEHALF OF HIS CLIENT, AS OPPOSED TO THAT OF AMICUS
CURIAE.  THE NO-MERIT LETTER AND THE PROCEDURE IT TRIGGERS DO NOT REACH
THAT DIGNITY.  COUNSEL SHOULD, AND CAN WITH HONOR AND WITHOUT CONFLICT,
BE OF MORE ASSISTANCE TO HIS CLIENT AND TO THE COURT.  (FN3)  HIS ROLE
AS ADVOCATE REQUIRES THAT HE SUPPORT HIS CLIENT'S APPEAL TO THE BEST OF
HIS ABILITY.  OF COURSE, IF COUNSEL FINDS HIS CASE TO BE WHOLLY
FRIVOLOUS, AFTER A CONSCIENTIOUS EXAMINATION OF IT, HE SHOULD SO ADVISE
THE COURT AND REQUEST PERMISSION TO WITHDRAW.  THAT REQUEST MUST,
HOWEVER, BE ACCOMPANIED BY A BRIEF REFERRING TO ANYTHING IN THE RECORD
THAT MIGHT ARGUABLY SUPPORT THE APPEAL.  A COPY OF COUNSEL'S BRIEF
SHOULD BE FURNISHED THE INDIGENT AND TIME ALLOWED HIM TO RAISE ANY
POINTS THAT HE CHOOSES; THE COURT - NOT COUNSEL - THEN PROCEEDS, AFTER
A FULL EXAMINATION OF ALL THE PROCEEDINGS, TO DECIDE WHETHER THE CASE
IS WHOLLY FRIVOLOUS.  IF IT SO FINDS IT MAY GRANT COUNSEL'S REQUEST TO
WITHDRAW AND DISMISS THE APPEAL INSOFAR AS FEDERAL REQUIREMENTS ARE
CONCERNED, OR PROCEED TO A DECISION ON THE MERITS, IF STATE LAW SO
REQUIRES.  ON THE OTHER HAND, IF IT FINDS ANY OF THE LEGAL POINTS
ARGUABLE ON THEIR MERITS (AND THEREFORE NOT FRIVOLOUS) IT MUST, PRIOR
TO DECISION, AFFORD THE INDIGENT THE ASSISTANCE OF COUNSEL TO ARGUE THE
APPEAL. 

THIS REQUIREMENT WOULD NOT FORCE APPOINTED COUNSEL TO BRIEF HIS CASE
AGAINST HIS CLIENT BUT WOULD MERELY AFFORD THE LATTER THAT ADVOCACY
WHICH A NONINDIGENT DEFENDANT IS ABLE TO OBTAIN.  IT WOULD ALSO INDUCE
THE COURT TO PURSUE ALL THE MORE VIGOROUSLY ITW OWN REVIEW BECAUSE OF
THE READY REFERENCES NOT ONLY TO THE RECORD, BUT ALSO TO THE LEGAL
AUTHORITIES AS FURNISHED IT BY COUNSEL.  THE NO-MERIT LETTER, ON THE
OTHER HAND, AFFORDS NEITHER THE CLIENT NOR THE COURT ANY AID.  THE
FORMER MUST SHIFT ENTIRELY FOR HIMSELF WHILE THE COURT HAS ONLY THE
COLD RECORD WHICH IT MUST REVIEW WITHOUT THE HELP OF AN ADVOCATE. 
MOREOVER, SUCH HANDLING WOULD TEND TO PROTECT COUNSEL FROM THE
CONSTANTLY INCREASING CHARGE THAT HE WAS INEFFECTIVE AND HAD NOT
HANDLED THE CASE WITH THAT DILIGENCE TO WHICH AN INDIGENT DEFENDANT IS
ENTITLED.  THIS PROCEDURE WILL ASSURE PENNILESS DEFENDANTS THE SAME
RIGHTS AND OPPORTUNITES ON APPEAL - AS NEARLY AS IS PRACTICABLE - AS
ARE ENJOYED BY THOSE PERSONS WHO ARE IN A SIMILAR SITUATION BUT WHO ARE
ABLE TO AFFORD THE RETENTION OF PRIVATE COUNSEL. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  PREVIOUSLY, ON JANUARY 24, 1964, PETITIONER, WHILE ON PAROLE,
HAD BEEN ARRESTED AND CONVICTED OF THE FELONY OF BURGLARY WHICH WAS
AFFIRMED ON APPEAL.  WE GRANTED CERTIORARI, ANTE, P. 264, VACATED THE
JUDGMENT BELOW AND REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF
CHAPMAN V. CALIFORNIA, ANTE, P. 18. 

FN2  IN RE NASH, 61 CAL. 2D 491, 393 P.2D 405 (1964), HELD THAT THE
REQUIREMENTS OF DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963), ARE MET IN
THE EVENT APPOINTED COUNSEL THOROUGHLY STUDIES THE RECORD, CONSULTS
WITH THE DEFENDANT AND TRIAL COUNSEL AND CONSCIENTIOUSLY CONCLUDES, AND
SO ADVISES THE APPELLATE COURT, THAT THERE ARE NO MERITORIOUS GROUNDS
OF APPEAL; AND PROVIDED THAT THE APPELLATE COURT IS SATISFIED FROM ITS
OWN REVIEW OF THE RECORD, IN LIGHT OF ANY POINTS PERSONALLY RAISED BY
THE DEFENDANT, THAT APPOINTED COUNSEL'S CONCLUSION IS CORRECT.  THE
APPEAL THEN PROCEEDS WITHOUT THE APPOINTMENT OF OTHER COUNSEL AND
DECISION IS REACHED WITHOUT ARGUMENT. 

FN3  FOR COMPARATIVE PURPOSES SEE TATE V. UNITED STATES, 123 U.S.
APP. D.C. 261, 359 F.2D 245, AND JOHNSON V. UNITED STATES, 124 U.S.
APP. D.C. 29, 360 F. D 844, WHICH OUTLINE THE PRACTICE FOLLOWED IN THE
DISTRICT OF COLUMBIA.  THESE GUIDELINES ARE ELABORATED IN MORE DETAIL
IN A "STATEMENT TO BE HANDED BY THE CLERK TO APPOINTED COUNSEL" WHICH
HAS BEEN PREPARED BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT.  WE INDICATE NO APPROVAL OF THE REQUIREMENTS SET OUT IN THE
STATEMENT OR IN THE CASES. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE BLACK AND MR. JUSTICE HARLAN
JOIN, DISSENTING. 

THE SYSTEM USED BY CALIFORNIA FOR HANDLING INDIGENT APPEALS WAS
DESCRIBED BY THE CALIFORNIA SUPREME COURT IN IN RE NASH, 61 CAL. 2D
491, 495, 393 P.2D 405, 408: 

"WE BELIEVE THAT THE REQUIREMENT OF THE DOUGLAS CASE (372 U.S. 353)
IS MET  ...  WHEN, AS IN THIS CASE, COUNSEL IS APPOINTED TO REPRESENT
THE DEFENDANT ON APPEAL, THOROUGHLY STUDIES THE RECORD, CONSULTS WITH
THE DEFENDANT AND TRIAL COUNSEL, AND CONSCIENTIOUSLY CONCLUDES THAT
THERE ARE NO MERITORIOUS GROUNDS OF APPEAL.  IF THEREAFTER THE
APPELLATE COURT IS SATISFIED FROM ITS OWN REVIEW OF THE RECORD IN THE
LIGHT OF ANY POINTS RAISED BY THE DEFENDANT PERSONALLY THAT COUNSEL'S
ASSESSMENT OF THE RECORD IS CORRECT, IT NEED NOT APPOINT ANOTHER
COUNSEL TO REPRESENT THE DEFENDANT ON APPEAL AND MAY PROPERLY DECIDE
THE APPEAL WITHOUT ORAL ARGUMENT." 

THE COURT TODAY HOLDS THIS PROCEDURE UNCONSTITUTIONAL, AND IMPOSES
UPON APPOINTED COUNSEL WHO WISHES TO WITHDRAW FROM A CASE HE DEEMS
"WHOLLY FRIVOLOUS" THE REQUIREMENT OF FILING "A BRIEF REFERRING TO
ANYTHING IN THE RECORD THAT MIGHT ARGUABLY SUPPORT THE APPEAL."  BUT IF
THE RECORD DID PRESENT ANY SUCH "ARGUABLE" ISSUES, THE APPEAL WOULD NOT
BE FRIVOLOUS AND COUNSEL WOULD NOT HAVE FILED A "NO-MERIT" LETTER IN
THE FIRST PLACE.*    *THE COURT CONCEDES AS MUCH WHEN IT STATES SUCH A
BRIEF SHOULD BE FILED ONLY WHEN COUNSEL BELIEVES THE CASE TO BE "WHOLLY
FRIVOLOUS" AND THEN GOES ON TO HOLD "IF THE CALIFORNIA APPELLATE COURT
FINDS ANY OF THE LEGAL POINTS ARGUABLE ON THEIR MERITS (AND THEREFORE
NOT FRIVOLOUS) IT MUST  ...  AFFORD THE INDIGENT THE ASSISTANCE OF
COUNSEL  ...  ."  ANTE, P. 744. 

EVEN ACCEPTING THE COURT'S REQUIREMENT, ONE WOULD HAVE TO PERCEIVE AN
"ARGUABLE" ISSUE IN ANDERS' CASE IN ORDER TO REMAND IT FOR A NEW
APPEAL.  THE MOST THAT ALL OF THE COURTS AND LAWYERS WHO HAVE EXAMINED
HIS CASE HAVE TURNED UP IS A CLAIM THAT THE PROSECUTOR COMMENTED ON HIS
SILENCE AT TRIAL.  BUT ANDERS' CONVICTION WAS AFFIRMED BY THE
CALIFORNIA DISTRICT COURT OF APPEAL SIX YEARS BEFORE GRIFFIN V.
CALIFORNIA, 380 U.S. 609, WAS DECIDED.  OUR LATER DECISION IN TEHAN V.
SHOTT, 382 U.S. 406, WAS BASED ON THE PREMISE THAT PRIOR TO GRIFFIN THE
PRACTICE OF COMMENTING ON THE DEFENDANT'S SILENCE WAS WELL ESTABLISHED
AND THUS DID NOT RAISE AN "ARGUABLE" ISSUE.  CF. O'CONNOR V. OHIO, 385
U.S. 92. 

THE QUIXOTIC REQUIREMENT IMPOSED BY THE COURT CAN BE EXPLAINED, I
THINK, ONLY UPON THE CYNICAL ASSUMPTION THAT AN APPOINTED LAWYER'S
PROFESSIONAL REPRESENTATION TO AN APPELLATE COURT IN A "NO-MERIT"
LETTER IS NOT TO BE TRUSTED.  THAT IS AN ASSUMPTION TO WHICH I CANNOT
SUBSCRIBE.  I CANNOT BELIEVE THAT LAWYERS APPOINTED TO REPRESENT
INDIGENTS ARE SO LIKELY TO BE LACKING IN DILIGENCE, COMPETENCE, OR
PROFESSIONAL HONESTY.  CERTAINLY THERE WAS NO SUGGESTION IN THE PRESENT
CASE THAT THE PETITIONER'S COUNSEL WAS EITHER INCOMPETENT OR
UNETHICAL. 

BUT EVEN IF I COULD JOIN IN THIS DEGRADING APPRAISAL OF THE IN FORMA
PAUPERIS BAR, IT ESCAPES ME HOW THE PROCEDURE THAT THE COURT COMMANDS
IS CONSTITUTIONALLY SUPERIOR TO THE SYSTEM NOW FOLLOWED IN CALIFORNIA. 
THE FUNDAMENTAL ERROR IN THE COURT'S OPINION, IT SEEMS TO ME, IS ITS
IMPLICIT ASSERTION THAT THERE CAN BE BUT A SINGLE INFLEXIBLE ANSWER TO
THE DIFFICULT PROBLEM OF HOW TO ACCORD EQUAL PROTECTION TO INDIGENT
APPELLANTS IN EACH OF THE 50 STATES. 

BELIEVING THAT THE PROCEDURE UNDER WHICH ANDERS' APPEAL WAS CONSIDERED
WAS FREE OF CONSTITUTIONAL ERROR, I WOULD AFFIRM THE JUDGMENT. 
..END :

















ENTSMINGER V. IOWA 386 U.S. 748 


NO. 252.  ARGUED MARCH 15, 1967.  - DECIDED MAY 8, 1967.  - 137 N.W.2D
381, REVERSED AND REMANDED. 


PETITIONER, AN INDIGENT REPRESENTED BY COURT-APPOINTED COUNSEL, WAS
CONVICTED OF A FELONY IN VIOLATION OF IOWA LAW.  AS HE REQUESTED, A
DIFFERENT ATTORNEY WAS APPOINTED TO PREPARE HIS MOTION FOR A NEW TRIAL,
WHICH WAS OVERRULED.  REPRESENTING PETITIONER ON APPEAL, THAT ATTORNEY
FILED A NOTICE OF APPEAL AND LATER, HAVING BEEN ASKED BY PETITIONER TO
PERFECT A PLENARY APPEAL, GAVE NOTICE THEREFOR BUT, APPARENTLY
BELIEVING THE APPEAL LACKED MERIT (BUT NOT ASKING TO WITHDRAW FROM THE
CASE), FAILED TO FILE THE ENTIRE TRIAL RECORD THOUGH IT HAD BEEN
PREPARED BY THE STATE AND COUNSEL HAD ADVISED PETITIONER THAT HE WOULD
FILE IT.  THOUGH THE STATE SUPREME COURT HAD ORDERED THE CASE SUBMITTED
ON THE FULL RECORD, BRIEFS AND ARGUMENT OF COUNSEL, THE COURT
CONSIDERED THE CASE ON THE BASIS OF THE "CLERK'S TRANSCRIPT," UNDER AN
IOWA PROCEDURE FOR APPELLATE REVIEW AS A MATTER OF COURSE ON THE BASIS
OF A MODIFIED TRANSCRIPT SUBMITTED BY THE TRIAL COURT CLERK WHICH
CONTAINS THE INFORMATION OR INDICTMENT, THE GRAND JURY MINUTES,
BAILIFF'S OATH, STATEMENT, AND INSTRUCTIONS BUT NOT THE TRANSCRIPT OF
EVIDENCE OR BRIEFS OR ARGUMENTS OF COUNSEL WHICH ARE ALSO MADE
AVAILABLE WHERE APPELLANT'S COUNSEL HAS REQUESTED PLENARY REVIEW. 
SHORTLY BEFORE THE STATE SUPREME COURT AFFIRMED THE CONVICTION
PETITIONER HAD REQUESTED THAT THE COURT ORDER THE "CERTIFIED RECORDS"
TRANSMITTED TO IT.  HELD:  PETITIONER, WHO WAS ENTITLED TO THE
ASSISTANCE OF APPOINTED COUNSEL ACTING IN THE ROLE OF AN ADVOCATE (SEE
ANDERS V. CALIFORNIA, ANTE, P. 738), WAS PRECLUDED BY HIS ATTORNEY'S
BARE ELECTION TO USE IOWA'S "CLERK'S TRANSCRIPT PROCEDURE" FROM
OBTAINING COMPLETE AND EFFECTIVE APPELLATE REVIEW OF HIS CONVICTION. 
PP. 751-752. 

ENTSMINGER V. IOWA. 

CERTIORARI TO THE SUPREME COURT OF IOWA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE, WHICH WAS ARGUED FOLLOWING ANDERS V. CALIFORNIA, ANTE, P.
738, PRESENTS A SIMILAR PROBLEM IN THAT WE ARE HERE ALSO CONCERNED WITH
THE CONSTITUTIONAL REQUIREMENTS WHICH ARE BINDING ON A STATE IN THE
ADMINISTRATION OF ITS APPELLATE CRIMINAL PROCEDURES WITH RESPECT TO
CONVICTED INDIGENTS SEEKING INITIAL REVIEW OF THEIR CONVICTIONS. 
PETITIONER, WHO WAS REPRESENTED AT TRIAL BY A COURT-APPOINTED ATTORNEY,
WAS CONVICTED OF UTTERING A FORGED INSTRUMENT IN VIOLATION OF IOWA
LAW.  SHORTLY AFTER THE VERDICT WAS RENDERED, HE REQUESTED THE TRIAL
COURT TO APPOINT DIFFERENT COUNSEL TO AID HIM IN THE PREPARATION OF A
MOTION FOR NEW TRIAL.  COUNSEL WAS APPOINTED, THE MOTION WAS PREPARED
AND FILED BUT THE TRIAL COURT OVERRULED IT.  UPON PETITIONER'S
APPLICATION, THE SAME ATTORNEY WAS APPOINTED TO REPRESENT HIM ON
APPEAL; COUNSEL THEN PREPARED AND FILED A TIMELY NOTICE OF APPEAL. 

IOWA LAW PROVIDES ALTERNATE METHODS OF APPEALING CRIMINAL
CONVICTIONS, THE FIRST METHOD BEING AN APPEAL ON A "CLERK'S TRANSCRIPT"
WHICH FOLLOWS THE NOTICE OF APPEAL AS A MATTER OF COURSE.  (FN1) UNDER
THIS PROCEDURE, THE CLERK OF THE TRIAL COURT PREPARES AND FILES A
MODIFIED TRANSCRIPT OF THE PROCEEDINGS BELOW; SUCH TRANSCRIPT CONTAINS
ONLY THE INFORMATION OR INDICTMENT, THE GRAND JURY MINUTES, THE
BAILIFF'S OATH, STATEMENT AND INSTRUCTIONS, VARIOUS ORDERS AND JUDGMENT
ENTRIES OF THE COURT, BUT DOES NOT CONTAIN THE TRANSCRIPT OF EVIDENCE
NOR THE BRIEFS AND ARGUMENT OF COUNSEL.  THIS PRACTICE IS USED IN THE
ABSENCE OF A REQUEST ON THE PART OF COUNSEL FOR A PLENARY REVIEW OF THE
CASE.  IF SUCH A REQUEST IS MADE, THE APPELLANT IS PROVIDED AN APPEAL
ON A COMPLETE RECORD OF THE TRIAL, INCLUDING NOT ONLY THOSE ITEMS
INCLUDED IN THE CLERK'S TRANSCRIPT BUT IN ADDITION THERETO, THE BRIEFS
AND ARGUMENT OF COUNSEL.  (FN2) 

PETITIONER ASKED HIS APPOINTED ATTORNEY TO PERFECT A PLENARY APPEAL
AND COUNSEL GAVE NOTICE THEREFOR WHICH, THOUGH BELATEDLY FILED, WAS
ALLOWED BY THE IOWA SUPREME COURT.  HOWEVER, COUNSEL, APPARENTLY
BELIEVING THAT THE APPEAL WAS WITHOUT MERIT, FAILED TO FILE THE ENTIRE
RECORD OF PETITIONER'S TRIAL ALTHOUGH IT HAD BEEN PREPARED BY THE STATE
AND COUNSEL HAD ADVISED PETITIONER THAT HE WOULD FILE SAME.  IT IS OF
NOTE THAT COUNSEL NEVER MOVED THE COURT FOR LEAVE TO WITHDRAW FROM THE
CASE.  DESPITE THE FACT THAT THE SUPREME COURT HAD ORDERED THE CASE
SUBMITTED ON THE FULL RECORD, BRIEFS AND ARGUMENTS OF COUNSEL - AND THE
RECORD HERE FAILS TO REVEAL ANY RESCISSION OF THAT ORDER - THE COURT
TOOK PETITIONER'S CASE INTO CONSIDERATION ON THE CLERK'S TRANSCRIPT
ALONE AS IT WAS REQUIRED TO DO UNDER IOWA LAW.  (FN3)  THE CONVICTION
WAS AFFIRMED BY THE SUPREME COURT OF IOWA, STATE V. ENTSMINGER, 137
N.W.2D 381 (1965).  THIS WAS DONE DESPITE THE REQUEST OF THE PETITIONER
A FEW DAYS BEFORE THE AFFIRMANCE OF HIS CONVICTION, THAT THE COURT
ISSUE AN ORDER COMMANDING THE TRIAL COURT TO "TRANSMIT THE CERTIFIED
RECORDS" TO THE SUPREME COURT FOR ITS REVIEW.  WE GRANTED CERTIORARI,
384 U.S. 1000. 

THE ATTORNEY GENERAL OF IOWA IN THE UTMOST CANDOR AND WITH MOST
COMMENDABLE FAIRNESS CONCEDES THAT PETITIONER HAS NOT RECEIVED
"ADEQUATE APPELLATE REVIEW" AND IS ENTITLED TO AN APPEAL FREE OF
CONSTITUTIONAL DOUBT.  WE HAVE EXAMINED THE RECORD CAREFULLY AND AGREE
THAT THE CLERK'S TRANSCRIPT PROCEDURE AS APPLIED HERE "CAN HARDLY BE
LABELED ADEQUATE AND EFFECTIVE REVIEW OF THE MERITS OF THE PROCEEDINGS
CULMINATING IN A CONVICTION."  (FN4)  HE BASES HIS CONCLUSIONS IN THIS
REGARD UPON THE HOLDING OF THE IOWA SUPREME COURT IN WEAVER V. HERRICK,
258 IOWA 796, 140 N.W.2D 178 (1966), WHERE THE COURT SPECIFICALLY
STATED: 

"TO AFFORD AN INDIGENT DEFENDANT AN ADEQUATE APPEAL FROM HIS
CONVICTION, THE FURNISHING OF A TRANSCRIPT, PRINTED RECORD AND
NECESSARY BRIEFS IS REQUIRED."  AT 801-802, 140 N.W.2D, AT 181. 

AS WE HAVE HELD AGAIN AND AGAIN, AN INDIGENT DEFENDANT IS ENTITLED TO
THE APPOINTMENT OF COUNSEL TO ASSIST HIM ON HIS FIRST APPEAL, DOUGLAS
V. CALIFORNIA, 372 U.S. 353 (1963), AND APPOINTED COUNSEL MUST FUNCTION
IN THE ACTIVE ROLE OF AN ADVOCATE, AS OPPOSED TO THAT OF AMICUS CURIAE,
ELLIS V. UNITED STATES, 356 U.S. 674 (1958).  IN GRIFFIN V. ILLINOIS,
351 U.S. 12 (1956), THE COURT HELD THAT A STATE THAT PROVIDED
TRANSCRIPTS ON APPEAL ONLY TO THOSE WHO COULD AFFORD THEM WAS
CONSTITUTIONALLY REQUIRED TO PROVIDE A "MEANS OF AFFORDING ADEQUATE AND
EFFECTIVE APPELLATE REVIEW TO INDIGENT DEFENDANTS."  AT 20.  AGAIN IN
BURNS V. OHIO, 360 U.S. 252 (1959), THE COURT, IN REAFFIRMING THE
GRIFFIN RULE, HELD THAT "ONCE THE STATE CHOOSES TO ESTABLISH APPELLATE
REVIEW IN CRIMINAL CASES, IT MAY NOT FORECLOSE INDIGENTS FROM ACCESS TO
ANY PHASE OF THAT PROCEDURE BECAUSE OF THEIR POVERTY."  AT 257.  IN
SMITH V. BENNETT, 365 U.S. 708 (1961), THE COURT, ONCE AGAIN
CONSIDERING THE QUESTION, HELD THAT SUCH PRINCIPLES ARE NOT LIMITED TO
DIRECT APPEALS BUT ARE ALSO APPLICABLE TO POST-CONVICTION PROCEEDINGS. 
IN THAT CASE THE COURT HELD THAT "THE FOURTEENTH AMENDMENT WEIGHS THE
INTERESTS OF RICH AND POOR CRIMINALS IN EQUAL SCALE, AND ITS HAND
EXTENDS AS FAR TO EACH."  AT 714.  HERE THERE IS NO QUESTION BUT THAT
PETITIONER WAS PRECLUDED FROM OBTAINING A COMPLETE AND EFFECTIVE
APPELLATE REVIEW OF HIS CONVICTION BY THE OPERATION OF THE CLERK'S
TRANSCRIPT PROCEDURE AS EMBODIED IN IOWA LAW.  SUCH PROCEDURE
AUTOMATICALLY DEPRIVED HIM OF A FULL RECORD, BRIEFS, AND ARGUMENTS ON
THE BARE ELECTION OF HIS APPOINTED COUNSEL, WITHOUT PROVIDING ANY
NOTICE TO HIM OR TO THE REVIEWING COURT THAT HE HAD CHOSEN NOT TO FILE
THE COMPLETE RECORD IN THE CASE.  BY SUCH ACTION "ALL HOPE OF ANY
ADEQUATE AND EFFECTIVE APPEAL AT ALL," LANE V. BROWN, 372 U.S. 477, 485
(1963), WAS TAKEN FROM THE PETITIONER. 

SINCE PETITIONER ADMITTEDLY HAS NOT RECEIVED THE BENEFIT OF A FIRST
APPEAL WITH A FULL PRINTED ABSTRACT OF THE RECORD, BRIEFS, AND ORAL
ARGUMENT, AS WAS HIS RIGHT UNDER IOWA LAW, WE DO NOT REACH THE MERITS
OF HIS CONVICTION HERE.  WE HAVE DISCUSSED AT SOME LENGTH THE
RESPONSIBILITY OF BOTH THE APPELLATE COURT AND APPOINTED COUNSEL
REPRESENTING INDIGENTS ON APPEAL IN ANDERS V. CALIFORNIA, SUPRA,
DECIDED THIS DAY, AND WE NEED NOT REPEAT SUCH HERE.  THE JUDGMENT IS
REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  IOWA CODE SEC 793.6 (1962). 

FN2  RULES OF THE SUPREME COURT, RULE 16, IOWA CODE, VOL. II, P. 2716
(1962). 

FN3  ID., RULE 15. 

FN4  INDEED THE ATTORNEY GENERAL HAS MOVED THE SUPREME COURT OF IOWA
TO CHANGE ITS RULE WITH RESPECT TO THE CLERK'S TRANSCRIPT SYSTEM AND
HIS SUGGESTED CHANGES AND THE RESPONSIBILITY OF APPOINTED COUNSEL
THEREUNDER ARE NOW UNDER ADVISEMENT.  WE DO NOT PASS ON THE VALIDITY OF
THE SUGGESTED PROCEDURE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
HARLAN JOIN, CONCURS IN THE JUDGMENT AND IN THE COURT'S OPINION, EXCEPT
AS IT REFERS TO ANDERS V. CALIFORNIA, A CASE WHICH HE THINKS INVOLVES
QUITE DIFFERENT ISSUES. 
..END :




NAT. BELLAS HESS V. DEPT. OF REVENUE 386 U.S. 753 


NO. 241.  ARGUED FEBRUARY 23, 1967.  - DECIDED MAY 8, 1967.  - 34 ILL.
2D 164, 214 N.E.2D 755, REVERSED. 


APPELLANT IS A MAIL ORDER HOUSE WITH ITS PRINCIPAL PLACE OF BUSINESS
IN MISSOURI.  IT OWNS NO TANGIBLE PROPERTY IN ILLINOIS, HAS NO SALES
OUTLETS, REPRESENTATIVES, TELEPHONE LISTING, OR SOLICITORS IN THAT
STATE, AND DOES NOT ADVERTISE THERE BY RADIO, TELEVISION, BILLBOARDS,
OR NEWSPAPERS.  IT MAILS CATALOGUES TWICE A YEAR TO CUSTOMERS
THROUGHOUT THE UNITED STATES, INCLUDING ILLINOIS, SUPPLEMENTED BY
OCCASIONAL "FLYERS."  ORDERS FOR MERCHANDISE ARE MAILED TO APPELLANT'S
MISSOURI PLANT, AND GOODS ARE SENT TO CUSTOMERS BY MAIL OR COMMON
CARRIER.  APPELLEE OBTAINED A JUDGMENT FROM THE ILLINOIS SUPREME COURT
REQUIRING APPELLANT TO COLLECT AND PAY TO THE STATE THE USE TAX IMPOSED
BY ILLINOIS UPON CONSUMERS WHO PURCHASE APPELLANT'S GOODS FOR USE
WITHIN THE STATE.  HELD:  THE COMMERCE CLAUSE PROHIBITS A STATE FROM
IMPOSING THE DUTY OF USE TAX COLLECTION AND PAYMENT UPON A SELLER WHOSE
ONLY CONNECTION WITH CUSTOMERS IN THE STATE IS BY COMMON CARRIER OR BY
MAIL.  PP. 756-760. 

NATIONAL BELLAS HESS, INC. V. DEPARTMENT OF REVENUE OF THE STATE OF
ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, NATIONAL BELLAS HESS, IS A MAIL ORDER HOUSE WITH ITS
PRINCIPAL PLACE OF BUSINESS IN NORTH KANSAS CITY, MISSOURI.  IT IS
LICENSED TO DO BUSINESS IN ONLY THAT STATE AND IN DELAWARE, WHERE IT IS
INCORPORATED.  ALTHOUGH THE COMPANY HAS NEITHER OUTLETS NOR SALES
REPRESENTATIVES IN ILLINOIS, THE APPELLEE, DEPARTMENT OF REVENUE,
OBTAINED A JUDGMENT FROM THE ILLINOIS SUPREME COURT THAT NATIONAL IS
REQUIRED TO COLLECT AND PAY TO THE STATE THE USE TAXES IMPOSED BY ILL.
REV. STAT. C. 120, SEC 439.3 (1965).  (FN1)  SINCE NATIONAL'S
CONSTITUTIONAL OBJECTIONS TO THE IMPOSITION OF THIS LIABILITY PRESENT A
SUBSTANTIAL FEDERAL QUESTION, WE NOTED PROBABLE JURISDICTION OF ITS
APPEAL.   (FN2) 

THE FACTS BEARING UPON NATIONAL'S RELATIONSHIP WITH ILLINOIS ARE
ACCURATELY SET FORTH IN THE OPINION OF THE STATE SUPREME COURT: 

"NATIONAL DOES NOT MAINTAIN IN ILLINOIS ANY OFFICE, DISTRIBUTION
HOUSE, SALES HOUSE, WAREHOUSE OR ANY OTHER PLACE OF BUSINESS; IT DOES
NOT HAVE IN ILLINOIS ANY AGENT, SALESMAN, CANVASSER, SOLICITOR OR OTHER
TYPE OF REPRESENTATIVE TO SELL OR TAKE ORDERS, TO DELIVER MERCHANDISE,
TO ACCEPT PAYMENTS, OR TO SERVICE MERCHANDISE IT SELLS; IT DOES NOT OWN
ANY TANGIBLE PROPERTY, REAL OR PERSONAL, IN ILLINOIS; IT HAS NO
TELEPHONE LISTING IN ILLINOIS AND IT HAS NOT ADVERTISED ITS MERCHANDISE
FOR SALE IN NEWSPAPERS, ON BILLBOARDS, OR BY RADIO OR TELEVISION IN
ILLINOIS."  (FN3) 

ALL OF THE CONTRACTS WHICH NATIONAL DOES HAVE WITH THE STATE ARE VIA
THE UNITED STATES MAIL OR COMMON CARRIER.  TWICE A YEAR CATALOGUES ARE
MAILED TO THE COMPANY'S ACTIVE OR RECENT CUSTOMERS THROUGHOUT THE
NATION, INCLUDING ILLINOIS.  THIS MAILING IS SUPPLEMENTED BY
ADVERTISING "FLYERS" WHICH ARE OCCASIONALLY MAILED TO PAST AND
POTENTIAL CUSTOMERS.  ORDERS FOR MERCHANDISE ARE MAILED BY THE
CUSTOMERS TO NATIONAL AND ARE ACCEPTED AT ITS MISSOURI PLANT.  THE
ORDERED GOODS ARE THEN SENT TO THE CUSTOMERS EITHER BY MAIL OR BY
COMMON CARRIER. 

THIS MANNER OF DOING BUSINESS IS SUFFICIENT UNDER THE ILLINOIS
STATUTE TO CLASSIFY NATIONAL AS A "RETAILER MAINTAINING A PLACE OF
BUSINESS IN THIS STATE," SINCE THAT TERM INCLUDES ANY RETAILER: 

"ENGAGING IN SOLICITING ORDERS WITHIN THIS STATE FROM USERS BY MEANS
OF CATALOGUES OR OTHER ADVERTISING, WHETHER SUCH ORDERS ARE RECEIVED OR
ACCEPTED WITHIN OR WITHOUT THIS STATE."  ILL. REV. STAT. C. 120, SEC
439.2 (1965). 

ACCORDINGLY, THE STATUTE REQUIRES NATIONAL TO COLLECT AND PAY TO THE
APPELLEE DEPARTMENT THE TAX IMPOSED BY ILLINOIS UPON CONSUMERS WHO
PURCHASE THE COMPANY'S GOODS FOR USE WITHIN THE STATE.  (FN4)  WHEN
COLLECTING THIS TAX, NATIONAL MUST GIVE THE ILLINOIS PURCHASER "A
RECEIPT THEREFOR IN THE MANNER AND FORM PRESCRIBED BY THE APPELLEE," IF
ONE IS DEMANDED.  (FN5)  IT MUST ALSO "KEEP SUCH RECORDS, RECEIPTS,
INVOICES AND OTHER PERTINENT BOOKS, DOCUMENTS, MEMORANDA AND PAPERS AS
THE APPELLEE SHALL REQUIRE, IN SUCH FORM AS THE APPELLEE SHALL
REQUIRE," AND MUST SUBMIT TO SUCH INVESTIGATIONS, HEARINGS, AND
EXAMINATIONS AS ARE NEEDED BY THE APPELLEE TO ADMINISTER AND ENFORCE
THE USE TAX LAW.  (FN6)  FAILURE TO KEEP SUCH RECORDS OR TO GIVE
REQUIRED RECEIPTS IS PUNISHABLE BY A FINE OF UP TO $5,000 AND
IMPRISONMENT OF UP TO SIX MONTHS.  (FN7)  FINALLY, TO ALLOW SERVICE OF
PROCESS ON AN OUT-OF-STATE COMPANY LIKE NATIONAL, THE STATUTE
DESIGNATES THE ILLINOIS SECRETARY OF STATE AS NATIONAL'S APPOINTED
AGENT, AND JURISDICTION IN TAX COLLECTION SUITS ATTACHES WHEN PROCESS
IS SERVED ON HIM AND THE COMPANY IS NOTIFIED BY REGISTERED MAIL. 
(FN8) 

NATIONAL ARGUES THAT THE LIABILITIES WHICH ILLINOIS HAS THUS IMPOSED
VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND CREATE
AN UNCONSTITUTIONAL BURDEN UPON INTERSTATE COMMERCE.  THESE TWO CLAIMS
ARE CLOSELY RELATED.  FOR THE TEST WHETHER A PARTICULAR STATE EXACTION
IS SUCH AS TO INVADE THE EXCLUSIVE AUTHORITY OF CONGRESS TO REGULATE
TRADE BETWEEN THE STATES, AND THE TEST FOR A STATE'S COMPLIANCE WITH
THE REQUIREMENTS OF DUE PROCESS IN THIS AREA ARE SIMILAR.  SEE CENTRAL
R. CO. V. PENNSYLVANIA, 370 U.S. 607, 621-622 (CONCURRING OPINION OF
MR. JUSTICE BLACK).  AS TO THE FORMER, THE COURT HAS HELD THAT "STATE
TAXATION FALLING ON INTERSTATE COMMERCE  ...  CAN ONLY BE JUSTIFIED AS
DESIGNED TO MAKE SUCH COMMERCE BEAR A FAIR SHARE OF THE COST OF THE
LOCAL GOVERNMENT WHOSE PROTECTION IT ENJOYS."  FREEMAN V. HEWIT, 329
U.S. 249, 253.  SEE ALSO GREYHOUND LINES V. MEALEY, 334 U.S. 653, 663;
NORTHWESTERN CEMENT CO. V. MINNESOTA, 358 U.S. 450, 462.  AND IN
DETERMINING WHETHER A STATE TAX FALLS WITHIN THE CONFINES OF THE DUE
PROCESS CLAUSE, THE COURT HAS SAID THAT THE "SIMPLE BUT CONTROLLING
QUESTION IS WHETHER THE STATE HAS GIVEN ANYTHING FOR WHICH IT CAN ASK
RETURN."  WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 444.  SEE ALSO
STANDARD OIL CO. V. PECK, 342 U.S. 382; OTT V. MISSISSIPPI BARGE LINE,
336 U.S. 169, 174.  THE SAME PRINCIPLES HAVE BEEN HELD APPLICABLE IN
DETERMINING THE POWER OF A STATE TO IMPOSE THE BURDENS OF COLLECTING
USE TAXES UPON INTERSTATE SALES.  HERE, TOO, THE CONSTITUTION REQUIRES
"SOME DEFINITE LINK, SOME MINIMUM CONNECTION, BETWEEN A STATE AND THE
PERSON, PROPERTY OR TRANSACTION IT SEEKS TO TAX."  MILLER BROS. CO. V.
MARYLAND, 347 U.S. 340, 344-345; SCRIPTO, INC. V. CARSON, 362 U.S. 207,
210-211.  (FN9)  SEE ALSO AMERICAN OIL CO. V. NEILL, 380 U.S. 451,
458. 

IN APPLYING THESE PRINCIPLES THE COURT HAS UPHELD THE POWER OF A
STATE TO IMPOSE LIABILITY UPON AN OUT-OF-STATE SELLER TO COLLECT A
LOCAL USE TAX IN A VARIETY OF CIRCUMSTANCES.  WHERE THE SALES WERE
ARRANGED BY LOCAL AGENTS IN THE TAXING STATE, WE HAVE UPHELD SUCH
POWER.  FELT & TARRANT CO. V. GALLAGHER, 306 U.S. 62; GENERAL TRADING
CO. V. TAX COMM'N, 322 U.S. 335.  WE HAVE REACHED THE SAME RESULT WHERE
THE MAIL ORDER SELLER MAINTAINED LOCAL RETAIL STORES.  NELSON V. SEARS,
ROEBUCK & CO., 312 U.S. 359; NELSON V. MONTGOMERY WARD, 312 U.S. 373. 
(FN1)  IN THOSE SITUATIONS THE OUT-OF-STATE SELLER WAS PLAINLY ACCORDED
THE PROTECTION AND SERVICES OF THE TAXING STATE.  THE CASE IN THIS
COURT WHICH REPRESENTS THE FURTHEST CONSTITUTIONAL REACH TO DATE OF A
STATE'S POWER TO DEPUTIZE AN OUT-OF-STATE RETAILER AS ITS COLLECTION
AGENT FOR A USE TAX IS SCRIPTO, INC. V. CARSON, 362 U.S. 207.  THERE WE
HELD THAT FLORIDA COULD CONSTITUTIONALLY IMPOSE UPON A GEORGIA SELLER
THE DUTY OF COLLECTING A STATE USE TAX UPON THE SALE OF GOODS SHIPPED
TO CUSTOMERS IN FLORIDA.  IN THAT CASE THE SELLER HAD "10 WHOLESALERS,
JOBBERS, OR 'SALESMEN' CONDUCTING CONTINUOUS LOCAL SOLICITATION IN
FLORIDA AND FORWARDING THE RESULTING ORDERS FROM THAT STATE TO ATLANTA
FOR SHIPMENT OF THE ORDERED GOODS."  362 U.S., AT 211. 

BUT THE COURT HAS NEVER HELD THAT A STATE MAY IMPOSE THE DUTY OF USE
TAX COLLECTION AND PAYMENT UPON A SELLER WHOSE ONLY CONNECTION WITH
CUSTOMERS IN THE STATE IS BY COMMON CARRIER OR THE UNITED STATES MAIL. 
INDEED, IN THE SEARS, ROEBUCK CASE THE COURT SHARPLY DIFFERENTIATED
SUCH A SITUATION FROM ONE WHERE THE SELLER HAD LOCAL RETAIL OUTLETS,
POINTING OUT THAT "THOSE OTHER CONCERNS  ... ARE NOT RECEIVING BENEFITS
FROM IOWA FOR WHICH IT HAS THE POWER TO EXACT A PRICE."  312 U.S., AT
365.  AND IN MILLER BROS. CO. V. MARYLAND, 347 U.S. 340, THE COURT HELD
THAT MARYLAND COULD NOT CONSTITUTIONALLY IMPOSE A USE TAX OBLIGATION
UPON A DELAWARE SELLER WHO HAD NO RETAIL OUTLETS OR SALES SOLICITORS IN
MARYLAND.  THERE THE SELLER ADVERTISED ITS WARES TO MARYLAND RESIDENTS
THROUGH NEWSPAPER AND RADIO ADVERTISING, IN ADDITION TO MAILING
CIRCULARS FOUR TIMES A YEAR.  AS A RESULT, IT MADE SUBSTANTIAL SALES TO
MARYLAND CUSTOMERS, AND MADE DELIVERIES TO THEM BY ITS OWN TRUCKS AND
DRIVERS. 

IN ORDER TO UPHOLD THE POWER OF ILLINOIS TO IMPOSE USE TAX BURDENS ON
NATIONAL IN THIS CASE, WE WOULD HAVE TO REPUDIATE TOTALLY THE SHARP
DISTINCTION WHICH THESE AND OTHER DECISIONS HAVE DRAWN BETWEEN MAIL
ORDER SELLERS WITH RETAIL OUTLETS, SOLICITORS, OR PROPERTY WITHIN A
STATE, AND THOSE WHO DO NO MORE THAN COMMUNICATE WITH CUSTOMERS IN THE
STATE BY MAIL OR COMMON CARRIER AS PART OF A GENERAL INTERSTATE
BUSINESS.  BUT THIS BASIC DISTINCTION, WHICH UNTIL NOW HAS BEEN
GENERALLY RECOGNIZED BY THE STATE TAXING AUTHORITIES, (FN11) IS A VALID
ONE, AND WE DECLINE TO OBLITERATE IT. 

WE NEED NOT REST ON THE BROAD FOUNDATION OF ALL THAT WAS SAID IN THE
MILLER BROS OPINION, FOR HERE THERE WAS NEITHER LOCAL ADVERTISING NOR
LOCAL HOUSEHOLD DELIVERIES, UPON WHICH THE DISSENTERS IN MILLER BROS.
SO LARGELY RELIED.  347 U.S., AT 358.  INDEED, IT IS DIFFICULT TO
CONCEIVE OF COMMERCIAL TRANSACTIONS MORE EXCLUSIVELY INTERSTATE IN
CHARACTER THAN THE MAIL ORDER TRANSACTIONS HERE INVOLVED.  AND IF THE
POWER OF ILLINOIS TO IMPOSE USE TAX BURDENS UPON NATIONAL WERE UPHELD,
THE RESULTING IMPEDIMENTS UPON THE FREE CONDUCT OF ITS INTERSTATE
BUSINESS WOULD BE NEITHER IMAGINARY NOR REMOTE.  FOR IF ILLINOIS CAN
IMPOSE SUCH BURDENS, SO CAN EVERY OTHER STATE, AND SO, INDEED, CAN
EVERY MUNICIPALITY, EVERY SCHOOL DISTRICT, AND EVERY OTHER POLITICAL
SUBDIVISION THROUGHOUT THE NATION WITH POWER TO IMPOSE SALES AND USE
TAXES.  (FN12)  THE MANY VARIATIONS IN RATES OF TAX,  (FN13)  IN
ALLOWABLE EXEMPTIONS, AND IN ADMINISTRATIVE AND RECORDKEEPING
REQUIREMENTS  (FN14)  COULD ENTANGLE NATIONAL'S INTERSTATE BUSINESS IN
A VIRTUAL WELTER OF COMPLICATED OBLIGATIONS TO LOCAL JURISDICTIONS WITH
NO LEGITIMATE CLAIM TO IMPOSE "A FAIR SHARE OF THE COST OF THE LOCAL
GOVERNMENT." 

THE VERY PURPOSE OF THE COMMERCE CLAUSE WAS TO ENSURE A NATIONAL
ECONOMY FREE FROM SUCH UNJUSTIFIABLE LOCAL ENTANGLEMENTS.  UNDER THE
CONSTITUTION, THIS IS A DOMAIN WHERE CONGRESS ALONE HAS THE POWER OF
REGULATION AND CONTROL.  (FN15) 

THE JUDGMENT IS REVERSED. 

FN1  34 ILL. 2D 164, 214 N.E.2D 755. 

FN2  385 U.S. 809. 

FN3  34 ILL. 2D, AT 166-167, 214 N.E.2D, AT 757. 

FN4  ILL. REV. STAT. C. 120, SEC 439.3 (1965). 

FN5  ID., SEC 439.5. 

FN6  ID., SEC 439.11. 

FN7  ID., 439.14. 

FN8  ID., SEC 439.12A. 

FN9  STRICTLY SPEAKING, THERE IS NO QUESTION OF THE CONNECTION OR
LINK BETWEEN THE STATE AND "THE PERSON  ...  IT SEEKS TO TAX."  FOR
THAT PERSON IN MILLER BROS. CO. V. MARYLAND, 347 U.S. 340, IN SCRIPTO,
INC. V. CARSON, 362 U.S. 207, AND IN THE PRESENT CASE IS THE USER OF
THE GOODS TO WHOM THE OUT-OF-STATE RETAILER SELLS.  NATIONAL IS NOT THE
PERSON BEING DIRECTLY TAXED, BUT RATHER IT IS ASKED TO COLLECT THE TAX
FROM THE USER.  IT IS, HOWEVER, MADE DIRECTLY LIABLE FOR THE PAYMENT OF
THE TAX WHETHER COLLECTED OR NOT.  ILL. REV. STAT.  C. 120, SEC 439.8
(1965). 

FN10  NATIONAL ACKOWLEDGES ITS OBLIGATION TO COLLECT A USE TAX IN
ALABAMA, KANSAS, AND MISSISSIPPI, SINCE IT HAS RETAIL OUTLETS IN THOSE
STATES. 

FN11  AS OF 1965, 11 STATES BESIDES ILLINOIS HAD USE TAX STATUTES
WHICH REQUIRED A SELLER LIKE NATIONAL TO PARTICIPATE IN THE TAX
COLLECTION SYSTEM.  HOWEVER, STATE TAXING ADMINISTRATORS APPEAR TO HAVE
GENERALLY CONSIDERED AN ADVERTISING NEXUS INSUFFICIENT.  FOR THEY HAVE
TESTIFIED THAT DOUBTS AS TO THE CONSTITUTIONALITY OF SUCH STATUTES
UNDERLAY THEIR FAILURE TO TAKE FULL ADVANTAGE OF THEIR STATUTORY
AUTHORITY.  REPORT OF THE SPECIAL SUBCOMMITTEE ON STATE TAXATION OF
INTERSTATE COMMERCE OF THE HOUSE COMMITTEE ON THE JUDICIARY, H.R. REP.
NO. 565, 89TH CONG., 1ST SESS., 631-635 (1965).  THESE DOUBTS WERE
SUBSTANTIATED BY THE ONLY OTHER STATE SUPREME COURT THAT HAS CONSIDERED
THE ISSUE NOW BEFORE US.  THE ALABAMA SUPREME COURT, DEALING WITH A
SITUATION VERY MUCH LIKE THE PRESENT ONE, FOUND THAT THIS APPLICATION
OF THE USE TAX STATUTE WOULD BE INVALID UNDER THE FEDERAL
CONSTITUTION.  STATE V. LANE BRYANT, INC., 277 ALA. 385, 171 SO. 2D
91. 

FN12  "LOCAL SALES TAXES ARE IMPOSED TODAY (1965) BY OVER 2,300
LOCALITIES  ...  .  IN MOST STATES, THE LOCAL SALES TAX IS COMPLEMENTED
BY A USE TAX."  H.R. REP. NO. 565, SUPRA, AT 872. 

FN13  IN 1964 THERE WERE SEVEN DIFFERENT RATES OF SALES AND USE
TAXES:  2, 2 1/4, 2 1/2, 3, 3 1/2, 4, AND 5%.  H.R. REP. NO. 565,
SUPRA, AT 611-613, 607-608.  THE STATE OF WASHINGTON HAS RECENTLY ADDED
AN EIGHTH, 4.2%.  WASH. REV. CODE SEC 82.12.020 (SUPP. 1965). 

FN14  "THE PREVAILING SYSTEM REQUIRES THE SELLER TO ADMINISTER RULES
WHICH DIFFER FROM ONE STATE TO ANOTHER AND WHOSE APPLICATION -
ESPECIALLY FOR THE INDUSTRIAL RETAILER - TURNS ON FACTS WHICH ARE OFTEN
TOO REMOTE AND UNCERTAIN FOR THE LEVEL OF ACCURACY DEMANDED BY THE
PRESCRIBED SYSTEM."  H.R. REP. NO. 565, SUPRA, AT 673. 

"GIVEN THE BROAD SPREAD OF SALES OF EVEN SMALL AND MODERATE SIZED
COMPANIES, IT IS CLEAR THAT IF JUST THE LOCALITIES WHICH NOW IMPOSE THE
TAX WERE TO REALIZE ANYTHING LIKE THEIR POTENTIAL OF OUT-OF-STATE
REGISTRANTS THE RECORDKEEPING TASK OF MULTISTATE SELLERS WOULD BE
CLEARLY INTOLERABLE."   ID., AT 882. 

FN15  CONGRESS HAS IN FACT RECENTLY EVIDENCED AN ACTIVE INTEREST IN
THIS AREA.  SEE TIT.  II, PUB. L. 86-272, 73 STAT. 556, AS AMENDED BY
PUB. L. 87-17, 75 STAT. 41, WHICH AUTHORIZED THE DETAILED CONGRESSIONAL
STUDY OF STATE TAXATION OF INTERSTATE COMMERCE THAT RESULTED IN H.R.
REP. NO. 565, SUPRA.  SEE ALSO H.R. REP. NO. 2013, 89TH CONG., 2D SESS.
(1966).    MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE BLACK AND MR.
JUSTICE DOUGLAS JOIN, DISSENTING. 

IN MY OPINION, THIS COURT'S DECISION IN SCRIPTO, INC. V. CARSON, 362
U.S. 207 (1960), AS WELL AS A REALISTIC APPROACH TO THE FACTS OF
APPELLANT'S BUSINESS, DICTATES AFFIRMANCE OF THE JUDGMENT OF THE
SUPREME COURT OF ILLINOIS. 

NATIONAL BELLAS HESS IS A LARGE RETAIL ESTABLISHMENT SPECIALIZING IN
WEARING APPAREL.  DIRECTLY AND THROUGH SUBSIDIARIES, IT OPERATES A
NATIONAL RETAIL MAIL ORDER BUSINESS WITH HEADQUARTERS IN NORTH KANSAS
CITY, MISSOURI, AND ITS WHOLLY OWNED SUBSIDIARIES OPERATE A LARGE
NUMBER OF RETAIL STORES IN VARIOUS STATES.  IN 1961, APPELLANT'S NET
SALES WERE IN THE NEIGHBORHOOD OF $60,000,000, AND ITS ACCOUNTS
RECEIVABLE AMOUNTED TO ABOUT $15,500,000.  (FN1) 

ITS SALES IN ILLINOIS AMOUNTED TO $2,174,744 FOR THE APPROXIMATELY 15
MONTHS FOR WHICH THE TAXES IN ISSUE IN THIS CASE WERE ASSESSED.  THIS
SUBSTANTIAL VOLUME IS OBTAINED BY A TWICE-A-YEAR CATALOGUE MAILINGS,
SUPPLEMENTED BY "INTERMEDIATE SMALLER 'SALES BOOKS' OR 'FLYERS,'"  AS
THE COURT BELOW STYLED THEM.  THE CATALOGUE CONTAINS ABOUT 4,000 ITEMS
OF MERCHANDISE.  THE COMPANY'S MAILING LIST INCLUDES OFER 5,000,000
NAMES.  THE "FLYERS" ARE SENT TO AN EVEN LARGER LIST THAN THE
CATALOGUES AND ARE OCCASIONALLY MAILED IN BULK ADDRESSED TO
"OCCUPANT." 

A SUBSTANTIAL PART OF BELLAS HESS' SALES IS ON CREDIT.  ITS CATALOGUE
FEATURES "NBH BUDGET AID CREDIT" - WHICH REQUIRES NO MONEY DOWN BUT
REQUIRES THE PURCHASER TO MAKE MONTHLY PAYMENTS WHICH INCLUDE A SERVICE
FEE OR INTEREST CHARGE, AND WHICH ALSO INCORPORATES AN AGREEMENT,
UNLESS EXPRESSLY REJECTED BY THE PURCHASER, FOR "BUDGET AID FAMILY
INSURANCE."  THE COMPANY ALSO OFFERS "CHARGE ACCOUNT" SERVICES -
PAYABLE MONTHLY INCLUDING A "SERVICE CHARGE" IF THE ACCOUNT IS NOT
FULLY PAID WITHIN 30 DAYS.  THE FORM TO BE FILLED IN FOR CREDIT
PURCHASES CONTAINS THE USUAL TYPE OF INFORMATION, INCLUDING PLACE OF
EMPLOYMENT, NAME OF BANK, MARITAL STATUS, HOME OWNERSHIP OR RENTAL. 
MERCHANDISE CAN ALSO BE BOUGHT C.O.D. OR BY SENDING A CHECK OR MONEY
ORDER WITH THE ORDER FOR GOODS.   (FN2) 

THERE SHOULD BE NO DOUBT THAT THIS LARGE-SCALE, SYSTEMATIC,
CONTINUOUS SOLICITATION AND EXPLOITATION OF THE ILLINOIS CONSUMER
MARKET IS A SUFFICIENT "NEXUS" TO REQUIRE BELLAS HESS TO COLLECT FROM
ILLINOIS CUSTOMERS AND TO REMIT THE USE TAX, ESPECIALLY WHEN COUPLED
WITH THE USE OF THE CREDIT RESOURCES OF RESIDENTS OF ILLINOIS,
DEPENDENT AS THAT MECHANISM IS UPON THE STATE'S BANKING AND CREDIT
INSTITUTIONS.  BELLAS HESS IS NOT SIMPLY USING THE FACILITIES OF
INTERSTATE COMMERCE TO SERVE CUSTOMERS IN ILLINOIS.  IT IS REGULARLY
AND CONTINUOUSLY ENGAGED IN "EXPLOITATION OF THE CONSUMER MARKET" OF
ILLINOIS (MILLER BROS. CO. V. MARYLAND, 347 U.S. 340, 347 (1954)) BY
SOLICITING RESIDENTS OF ILLINOIS WHO LIVE AND WORK THERE AND HAVE HOMES
AND BANKING CONNECTIONS THERE, AND WHO, ABSENT THE SOLICITATION OF
BELLAS HESS, MIGHT BUY LOCALLY AND PAY THE SALES TAX TO SUPPORT THEIR
STATE.  BELLAS HESS COULD NOT CARRY ON ITS BUSINESS IN ILLINOIS, AND
PARTICULARLY ITS SUBSTANTIAL CREDIT BUSINESS, WITHOUT UTILIZING
ILLINOIS BANKING AND CREDIT FACILITIES.  SINCE THE CASE WAS TRIED ON
AFFIDAVITS, WE ARE NOT INFORMED AS TO THE DETAILS OF THE COMPANY'S
CREDIT OPERATIONS IN ILLINOIS.  WE DO NOT KNOW WHETHER IT UTILIZES
CREDIT INFORMATION OR COLLECTION AGENCIES, OR SIMILAR INSTITUTIONS. 
THE COMPANY STATES THAT IT HAS "BROUGHT NO SUITS IN THE STATE OF
ILLINOIS."  ACCEPTING THIS AS TRUE, IT WOULD NEVERTHELESS BE
UNREASONABLE TO ASSUME THAT THE COMPANY DOES NOT EITHER SELL OR ASSIGN
ITS ACCOUNTS OR OTHERWISE TAKE MEASURES TO COLLECT ITS DELINQUENT
ACCOUNTS, OR THAT COLLECTION DOES NOT INCLUDE LOCAL ACTIVITIES BY THE
COMPANY OR ITS ASSIGNEES OR REPRESENTATIVES. 

BELLAS HESS ENJOYS THE BENEFITS OF, AND PROFITS FROM THE FACILITIES
NURTURED BY, THE STATE OF ILLINOIS AS FULLY AS IF IT WERE A RETAIL
STORE OR MAINTAINED SALESMEN THEREIN.  INDEED, IF IT DID EITHER, THE
BENEFIT THAT IT RECEIVED FROM THE STATE OF ILLINOIS WOULD BE NO MORE
THAN IT NOW HAS - THE ABILITY TO MAKE SALES OF ITS MERCHANDISE, TO
UTILIZE CREDIT FACILITIES, AND TO REALIZE A PROFIT; AND, AT THE SAME
TIME, IT WOULD BE REQUIRED TO PAY ADDITIONAL TAXES.  UNDER THE PRESENT
ARRANGEMENT, IT CONDUCTS ITS SUBSTANTIAL, REGULAR, AND SYSTEMATIC
BUSINESS IN ILLINOIS AND THE STATE DEMANDS ONLY THAT IT COLLECT FROM
ITS CUSTOMER-USERS - AND REMIT TO THE STATE - THE USE TAX WHICH IS
MERELY EQUAL TO THE SALES TAX WHICH RESIDENT MERCHANTS MUST COLLECT AND
REMIT.  TO EXCUSE BELLAS HESS FROM THIS OBLIGATION IS TO BURDEN AND
PENALIZE RETAILERS LOCATED IN ILLINOIS WHO MUST COLLECT THE SALES TAX
FROM THEIR CUSTOMERS.  IN ILLINOIS THE RATE IS 3 1/2%, AND WHEN IT IS
REALIZED THAT IN SOME COMMUNITIES THE SALES TAX REQUIRES, IN EFFECT,
THAT AS MUCH AS 5% BE ADDED TO THE AMOUNT THAT CUSTOMERS OF LOCAL, TAX
PAYING STORES MUST PAY,  (FN3)  THE IMPORTANCE OF THE COMPETITIVE
DISCRIMINATION BECOMES APPARENT.  WHILE THIS ADVANTAGE TO OUT-OF-STATE
SELLERS IS TOLERABLE AND A NECESSARY CONSTITUTIONAL CONSEQUENCE WHERE
THE SALES ARE OCCASIONAL, MINOR AND SPORADIC AND NOT THE RESULT OF A
CALCULATED, SYSTEMATIC EXPLOITATION OF THE MARKET, IT CERTAINLY SHOULD
NOT BE EXTENDED TO INSTANCES WHERE THE OUT-OF-STATE COMPANY IS ENGAGED
IN EXPLOITING THE LOCAL MARKET ON A REGULAR, SYSTEMATIC, LARGE-SCALE
BASIS.  IN SUCH CASES, THE DIFFERENCE BETWEEN THE NATURE OF THE
BUSINESS CONDUCTED BY THE MAIL ORDER HOUSE AND BY THE LOCAL ENTERPRISE
IS NOT ENTITLED TO CONSTITUTIONAL SIGNIFICANCE.  THE NATIONAL MAIL
ORDER BUSINESS AMOUNTS TO OVER $2,400,000,000 A YEAR.  (FN4)  SOME OF
THIS IS UNDOUBTEDLY SUBJECT TO THE FULL RANGE OF TAXES BECAUSE OF THE
LOCATION OF STORES IN THE VARIOUS STATES,  (FN5)  AND SOME OF IT IS AND
SHOULD BE EXEMPT FROM STATE USE TAX BECAUSE OF ITS SPORADIC OR MINOR
NATURE.  SEE REPORT OF THE SPECIAL SUBCOMMITTEE ON STATE TAXATION OF
INTERSTATE COMMERCE OF THE HOUSE JUDICIARY COMMITTEE, H.R. REP. NO.
565, 89TH CONG., 1ST SESS., VOL. 3 (1965), AT 770-777.  BUT THE VOLUME
WHICH, UNDER THE PRESENT DECISION, WILL BE PLACED IN A FAVORED POSITION
AND EXEMPTED FROM BEARING ITS FAIR BURDEN OF THE COLLECTION OF STATE
TAXES CERTAINLY WILL BE SUBSTANTIAL, AND AS STATE SALES TAXES INCREASE,
THIS HAVEN OF IMMUNITY MAY WELL INCREASE IN SIZE AND IMPORTANCE. 

IN SCRIPTO, SUPRA, THIS COURT APPLIED A SENSIBLE, PRACTICAL
CONCEPTION OF THE COMMERCE CLAUSE.  THE INTERSTATE SELLER WHICH, IN
THAT CASE, CLAIMED CONSTITUTIONAL IMMUNITY FROM THE COLLECTION OF THE
FLORIDA USE TAX HAD, LIKE APPELLANT HERE, NO OFFICE OR PLACE OF
BUSINESS IN THE STATE, AND HAD NO PROPERTY OR EMPLOYEES THERE.  IT
SOLICITED ORDERS IN FLORIDA THROUGH LOCAL "INDEPENDENT CONTRACTORS" OR
BROKERS PAID ON A COMMISSION BASIS.  THESE BROKERS WERE FURNISHED
CATALOGUES AND SAMPLES, AND FORWARDED ORDERS TO SCRIPTO, OUT OF STATE. 
THE COURT NOTED THAT THE SELLER WAS "CHARGED WITH NO TAX - SAVE WHEN
...  HE FAILS OR REFUSES TO COLLECT IT" (362 U.S., AT 211)  (FN6) AND
THAT THE STATE "REIMBURSED THE SELLER  ...  FOR ITS SERVICE" AS TAX
COLLECTOR (362 U.S., AT 212).  THE SAME IS TRUE IN THE PRESENT CASE. 
(FN7)  I DO NOT SEE HOW SCRIPTO IS MEANINGFULLY DISTINGUISHABLE FROM
THIS CASE.  IN FACT, SCRIPTO INVOLVED THE SALE OF A SINGLE ARTICLE OF
COMMERCE.  THE "EXPLOITATION" OF THE STATE'S MARKET WAS BY NO MEANS AS
PERVASIVE OR COMPREHENSIVE AS IS HERE INVOLVED, NOR WAS THERE ANY
REFERENCE TO THE COMPANY'S USE OF THE STATE'S CREDIT INSTITUTIONS. 

THE PRESENT CASE IS, OF COURSE, NOT AT ALL CONTROLLED BY MILLER BROS.
CO. V. MARYLAND, 347 U.S. 340 (1954).  IN THAT CASE, AS THIS COURT
SAID, THE COMPANY SOLD ITS MERCHANDISE AT ITS STORE IN DELAWARE; THERE
WAS "NO SOLICITATION OTHER THAN THE INCIDENTAL EFFECTS OF GENERAL
ADVERTISING  ... NO INVASION OR EXPLOITATION OF THE CONSUMER MARKET
...  ."  347 U.S., AT 347.  AS THE COURT NOTED IN SCRIPTO, SUPRA,
MILLER BROS. WAS A CASE IN WHICH THERE WAS "NO REGULAR, SYSTEMATIC
DISPLAYING OF ITS PRODUCTS BY CATALOGS, SAMPLES OR THE LIKE."  362
U.S., AT 212.  ON THE CONTRARY, IN THE PRESENT CASE, APPELLANT
REGULARLY SENDS NOT ONLY ITS CATALOGUE, BUT EVEN BULK MAILINGS
SOLICITING BUSINESS ADDRESSED TO "OCCUPANT," AND IT OFFERS AND EXTENDS
CREDIT TO RESIDENTS OF ILLINOIS BASED ON THEIR LOCAL FINANCIAL
REFERENCES. 

AS THE COURT SAYS, THE TEST WHETHER AN OUT-OF-STATE BUSINESS MUST
COMPLY WITH A STATE LEVY IS VARIOUSLY FORMULATED:  "WHETHER THE STATE
HAS GIVEN ANYTHING FOR WHICH IT CAN ASK RETURN"; (FN8) WHETHER THE OUT
OF-STATE BUSINESS ENJOYS THE PROTECTION OR BENEFITS OF THE STATE; (FN9)
WHETHER THERE IS A SUFFICIENT NEXUS:  "SOME DEFINITE LINK, SOME
MINIMUM CONNECTION, BETWEEN A STATE AND THE PERSON, PROPERTY OR
TRANSACTION IT SEEKS TO TAX."  (FN10)  HOWEVER THIS IS FORMULATED, IT
SEEMS TO ME ENTIRELY CLEAR THAT A MAIL ORDER HOUSE ENGAGED IN THE
BUSINESS OF REGULARLY, SYSTEMATICALLY, AND ON A LARGE SCALE OFFERING
MERCHANDISE FOR SALE IN A STATE IN COMPETITION WITH LOCAL RETAILERS,
AND SOLICITING DEFERRED-PAYMENT CREDIT ACCOUNTS FROM THE STATE'S
RESIDENTS, IS NOT EXCUSED FROM COMPLIANCE WITH THE STATE'S USE TAX
OBLIGATIONS BY THE COMMERCE CLAUSE OR THE DUE PROCESS CLAUSE OF THE
CONSTITUTION. 

IT IS HARDLY WORTH REMARKING THAT APPELLANT'S EXPRESSIONS OF
CONSTERNATION AND ALARM AT THE BURDEN WHICH THE MECHANICS OF COMPLIANCE
WITH USE TAX OBLIGATIONS WOULD PLACE UPON IT AND OTHERS SIMILARLY
SITUATED SHOULD NOT GIVE US PAUSE.  THE BURDEN IS NO GREATER THAN THAT
PLACED UPON LOCAL RETAILERS BY COMPARABLE SALES TAX OBLIGATIONS; AND
THE COURT'S RESPONSE THAT THESE ADMINISTRATIVE AND RECORD KEEPING
REQUIREMENTS COULD "ENTANGLE" APPELLANT'S INTERSTATE BUSINESS IN A
WELTER OF COMPLICATED OBLIGATIONS VASTLY UNDERESTIMATES THE SKILL OF
CONTEMPORARY MAN AND HIS MACHINES.  THERE IS NO DOUBT THAT THE
COLLECTION OF TAXES FROM CONSUMERS IS A BURDEN; BUT IT IS NO MORE OF A
BURDEN ON A MAIL ORDER HOUSE SUCH AS APPELLANT LOCATED IN ANOTHER STATE
THAN ON AN ENTERPRISE IN THE SAME STATE WHICH ACCEPTS ORDERS BY MAIL;
AND IT IS, INDEED, HARDLY MORE OF A BURDEN THAN IT IS ON ANY ORDINARY
RETAIL STORE IN THE TAXING STATE. 

I WOULD AFFIRM. 

FN1  MOODY'S INDUSTRIAL MANUAL (1962). 

FN2  BECAUSE THIS CASE WAS TRIED ON AFFIDAVITS, REFERENCE HAS ALSO
BEEN MADE TO THE NATIONAL BELLAS HESS CATALOGUE, SPRING AND SUMMER
1967, TO SUPPLEMENT THE PICTURE OF APPELLANT'S BUSINESS AFFORDED BY THE
RECORD. 

FN3  THIS IS THE CURRENT RATE IN PENNSYLVANIA.  PA. STAT. ANN., TIT.
72, SEC 3403-201 (1964).  SEE THE WORLD ALMANAC (1967, NEWSPAPER
ENTERPRISE ASSN.) 136-137. 

FN4  U.S. BUREAU OF THE CENSUS, 1963 CENSUS OF BUSINESS, RETAIL TRADE
AREA STATISTICS, PT. 1, TABLE 2, P. 1-8 (1966). 

FN5  SEE NELSON V. SEARS, ROEBUCK & CO., 312 U.S. 359 (1941); NELSON
V. MONTGOMERY WARD, 312 U.S. 373 (1941). 

FN6  OUR OBSERVATION IN NELSON V. SEARS, ROEBUCK & CO., 312 U.S. 359,
365-366 (1941), IS AN APT RESPONSE TO APPELLANT'S CLAIM THAT IT WILL
NOT BE ABLE TO COLLECT ALL OF THE TAX FROM ITS PURCHASERS:  "SO FAR AS
ASSUMED LOSSES ON TAX COLLECTIONS ARE CONCERNED, RESPONDENT IS IN NO
POSITION TO FOUND A CONSTITUTIONAL RIGHT ON THE PRACTICAL OPPORTUNITIES
FOR TAX AVOIDANCE WHICH ITS METHOD OF DOING BUSINESS AFFORDS IOWA
RESIDENTS, OR TO CLAIM A CONSTITUTIONAL IMMUNITY BECAUSE IT MAY ELECT
TO DELIVER THE GOODS BEFORE THE TAX IS PAID."  ACTUALLY, IT APPEARS
THAT APPELLANT'S METHOD OF DOING BUSINESS IS SUCH AS TO MINIMIZE THE
NONCOLLECTION OF THE TAX. 

FN7  THE ILLINOIS STATUTE PROVIDES FOR A "DISCOUNT OF 2% OR $5 PER
CALENDAR YEAR, WHICHEVER IS GREATER  ...  TO REIMBURSE THE RETAILER FOR
EXPENSES INCURRED IN COLLECTING THE TAX, KEEPING RECORDS, PREPARING AND
FILING RETURNS, REMITTING THE TAX AND SUPPLYING DATA  ...  ."  ILL.
REV. STAT. C. 120, SEC 439.9 (1965).  APPELLANT DOES NOT CLAIM THAT
THIS AMOUNT IS INADEQUATE TO REIMBURSE IT FOR ITS EXPENSES IN
COLLECTING THE TAX FOR THE STATE. 

FN8  WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 444 (1940). 

FN9  NELSON V. SEARS, ROEBUCK & CO., 312 U.S. 359, 364 (1941). 

FN10  MILLER BROS. CO. V. MARYLAND, 347 U.S. 340, 344-345 (1954). 
..END :




















REDRUP V. NEW YORK 386 U.S. 767 


NO. 3.  ARGUED OCTOBER 10, 1966.  - DECIDED MAY 8, 1967.* - NO. 50, 239
ARK. 474, 393 S.W.2D 219, AND NOS. 3 AND 16, REVERSED. 

*TOGETHER WITH NO. 16, AUSTIN V. KENTUCKY, ON CERTIORARI TO THE
CIRCUIT COURT OF MCCRACKEN COUNTY, KENTUCKY, ARGUED ON OCTOBER 10-11,
1966, AND NO. 50, GENT ET AL. V. ARKANSAS, ON APPEAL FROM THE SUPREME
COURT OF ARKANSAS, ARGUED OCTOBER 11, 1966. 


PETITIONERS IN NOS. 3 AND 16 WERE CONVICTED FOR VIOLATING NEW YORK AND
KENTUCKY LAWS, RESPECTIVELY, CONCERNING THE SALE OF ALLEGEDLY OBSCENE
PUBLICATIONS.  IN NO. 50 THE ARKANSAS COURTS IN A CIVIL PROCEEDING
DECLARED CERTAIN ISSUES OF SPECIFIC MAGAZINES TO BE OBSCENE, ENJOINED
THEIR DISTRIBUTION, AND ORDERED THEIR DESTRUCTION.  HELD:  THESE CASES
CAN BE AND ARE DECIDED UPON THEIR COMMON CONSTITUTIONAL BASIS THAT THE
DISTRIBUTION OF THE PUBLICATIONS IS PROTECTED BY THE FIRST AND
FOURTEENTH AMENDMENTS FROM GOVERNMENTAL SUPPRESSION. 

REDRUP V. NEW YORK. 

CERTIORARI TO THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK,
FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THESE THREE CASES ARISE FROM A RECURRING CONFLICT - THE CONFLICT
BETWEEN ASSERTED STATE POWER TO SUPPRESS THE DISTRIBUTION OF BOOKS AND
MAGAZINES THROUGH CRIMINAL OR CIVIL PROCEEDINGS, AND THE GUARANTEES OF
THE FIRST AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. 

                  I. 

IN NO. 3, REDRUP V. NEW YORK, THE PETITIONER WAS A CLERK AT A NEW
YORK CITY NEWSSTAND.  A PLAINCLOTHES PATROLMAN APPROACHED THE
NEWSSTAND, SAW TWO PAPERBACK BOOKS ON A RACK - LUST POOL, AND SHAME
AGENT - AND ASKED FOR THEM BY NAME.  THE PETITIONER HANDED HIM THE
BOOKS AND COLLECTED THE PRICE OF $1.65.  AS A RESULT OF THIS
TRANSACTION, THE PETITIONER WAS CHARGED IN THE NEW YORK CITY CRIMINAL
COURT WITH VIOLATING A STATE CRIMINAL LAW.  (FN1)  HE WAS CONVICTED,
AND THE CONVICTION WAS AFFIRMED ON APPEAL. 

IN NO. 16, AUSTIN V. KENTUCKY, THE PETITIONER OWNED AND OPERATED A
RETAIL BOOKSTORE AND NEWSSTAND IN PADUCAH, KENTUCKY.  A WOMAN RESIDENT
OF PADUCAH PURCHASED TWO MAGAZINES FROM A SALESGIRL IN THE PETITIONER'S
STORE, AFTER ASKING FOR THEM BY NAME - HIGH HEELS, AND SPREE.  AS A
RESULT OF THIS TRANSACTION THE PETITIONER STANDS CONVICTED IN THE
KENTUCKY COURTS FOR VIOLATING A CRIMINAL LAW OF THAT STATE.  (FN2) 

IN NO. 50, GENT V. ARKANSAS, THE PROSECUTING ATTORNEY OF THE ELEVENTH
JUDICIAL DISTRICT OF ARKANSAS BROUGHT A CIVIL PROCEEDING UNDER A STATE
STATUTE,  (FN3)  TO HAVE CERTAIN ISSUES OF VARIOUS MAGAZINES DECLARED
OBSCENE, TO ENJOIN THEIR DISTRIBUTION AND TO OBTAIN A JUDGMENT ORDERING
THEIR SURRENDER AND DESTRUCTION.  THE MAGAZINES PROCEEDED AGAINST WERE:
GENT, SWANK, BACHELOR, MODERN MAN, CAVALCADE, GENTLEMAN, ACE, AND
SIR.  THE COUNTY CHANCERY COURT ENTERED THE REQUESTED JUDGMENT AFTER A
TRIAL WITH AN ADVISORY JURY, AND THE SUPREME COURT OF ARKANSAS
AFFIRMED, WITH MINOR MODIFICATIONS.  (FN4) 

IN NONE OF THE CASES WAS THERE A CLAIM THAT THE STATUTE IN QUESTION
REFLECTED A SPECIFIC AND LIMITED STATE CONCERN FOR JUVENILES.  SEE
PRINCE V. MASSACHUSETTS, 321 U.S. 158; CF.  BUTLER V. MICHIGAN, 352
U.S. 380.  IN NONE WAS THERE ANY SUGGESTION OF AN ASSAULT UPON
INDIVIDUAL PRIVACY BY PUBLICATION IN A MANNER SO OBTRUSIVE AS TO MAKE
IT IMPOSSIBLE FOR AN UNWILLING INDIVIDUAL TO AVOID EXPOSURE TO IT.  CF.
BREARD V. ALEXANDRIA, 341 U.S. 622; PUBLIC UTILITIES COMM'N V. POLLAK,
343 U.S. 451.  AND IN NONE WAS THERE EVIDENCE OF THE SORT OF
"PANDERING" WHICH THE COURT FOUND SIGNIFICANT IN GINZBERG V. UNITED
STATES, 383 U.S. 463. 

                        II. 

THE COURT ORIGINALLY LIMITED REVIEW IN THESE CASES TO CERTAIN
PARTICULARIZED QUESTIONS, UPON THE HYPOTHESIS THAT THE MATERIAL
INVOLVED IN EACH CASE WAS OF A CHARACTER DESCRIBED AS "OBSCENE IN THE
CONSTITUTIONAL SENSE" IN MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 418. 
(FN5)  BUT WE HAVE CONCLUDED THAT THE HYPOTHESIS UPON WHICH THE COURT
ORIGINALLY PROCEEDED WAS INVALID, AND ACCORDINGLY THAT THE CASES CAN
AND SHOULD BE DECIDED UPON A COMMON AND CONTROLLING FUNDAMENTAL
CONSTITUTIONAL BASIS, WITHOUT PREJUDICE TO THE QUESTIONS UPON WHICH
REVIEW WAS ORIGINALLY GRANTED.  WE HAVE CONCLUDED, IN SHORT, THAT THE
DISTRIBUTION OF THE PUBLICATIONS IN EACH OF THESE CASES IS PROTECTED BY
THE FIRST AND FOURTEENTH AMENDMENTS FROM GOVERNMENTAL SUPPRESSION,
WHETHER CRIMINAL OR CIVIL, IN PERSONAM OR IN REM.  (FN6) 

TWO MEMBERS OF THE COURT HAVE CONSISTENTLY ADHERED TO THE VIEW THAT A
STATE IS UTTERLY WITHOUT POWER TO SUPPRESS, CONTROL, OR PUNISH THE
DISTRIBUTION OF ANY WRITINGS OR PICTURES UPON THE GROUND OF THEIR
"OBSCENITY."  (FN7)  A THIRD HAS HELD TO THE OPINION THAT A STATE'S
POWER IN THIS AREA IS NARROWLY LIMITED TO A DISTINCT AND CLEARLY
IDENTIFIABLE CLASS OF MATERIAL.  (FN8)  OTHERS HAVE SUBSCRIBED TO A NOT
DISSIMILAR STANDARD, HOLDING THAT A STATE MAY NOT CONSTITUTIONALLY
INHIBIT THE DISTRIBUTION OF LITERARY MATERIAL AS OBSCENE UNLESS "(A)
THE DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO A
PRURIENT INTEREST IN SEX; (B) THE MATERIAL IS PATENTLY OFFENSIVE
BECAUSE IT AFFRONTS CONTEMPORARY COMMUNITY STANDARDS RELATING TO THE
DESCRIPTION OR REPRESENTATION OF SEXUAL MATTERS; AND (C) THE MATERIAL
IS UTTERLY WITHOUT REDEEMING SOCIAL VALUE," EMPHASIZING THAT THE "THREE
ELEMENTS MUST COALESCE," AND THAT NO SUCH MATERIAL CAN "BE PROSCRIBED
UNLESS IT IS FOUND TO BE UTTERLY WITHOUT REDEEMING SOCIAL VALUE." 
MEMOIRS V. MASSACHUSETTS, 383 U.S. 413, 418-419.  ANOTHER JUSTICE HAS
NOT VIEWED THE "SOCIAL VALUE" ELEMENT AS AN INDEPENDENT FACTOR IN THE
JUDGMENT OF OBSCENITY.  ID., AT 460-462 (DISSENTING OPINION). 

WHICHEVER OF THESE CONSTITUTIONAL VIEWS IS BROUGHT TO BEAR UPON THE
CASES BEFORE US, IT IS CLEAR THAT THE JUDGMENTS CANNOT STAND. 
ACCORDINGLY, THE JUDGMENT IN EACH CASE IS REVERSED.  IT IS SO ORDERED. 

FN1  N.Y. PEN.  LAW SEC 1141(1). 

FN2  KY. REV. STAT. SEC 436.100.  THE KENTUCKY COURT OF APPEALS
DENIED PLENARY REVIEW OF THE PETITIONER'S CONVICTION, THE CHIEF JUSTICE
DISSENTING.  386 S.W.2D 270. 

FN3  ARK. STAT. ANN. SECS 41-2713 TO 41-2728. 

FN4  239 ARK. 474, 393 S.W.2D 219. 

FN5  REDRUP V. NEW YORK, 384 U.S. 916; AUSTIN V. KENTUCKY, 384 U.S.
916; GENT V. ARKANSAS, 384 U.S. 937. 

FN6  IN EACH OF THE CASES BEFORE US, THE CONTENTION THAT THE
PUBLICATIONS INVOLVED WERE BASICALLY PROTECTED BY THE FIRST AND
FOURTEENTH AMENDMENTS WAS TIMELY BUT UNSUCCESSFULLY ASSERTED IN THE
STATE PROCEEDINGS.  IN EACH OF THESE CASES, THIS CONTENTION WAS
PROPERLY AND EXPLICITLY PRESENTED FOR REVIEW HERE. 

FN7  SEE GINZBURG V. UNITED STATES, 383 U.S. 463, 476, 482
(DISSENTING OPINIONS); JACOBELLIS V. OHIO, 378 U.S. 184, 196
(CONCURRING OPINION); ROTH V. UNITED STATES, 354 U.S. 476, 508
(DISSENTING OPINION). 

FN8  SEE GINZBURG V. UNITED STATES, 383 U.S. 463, 499, AND N. 3
(DISSENTING OPINION).  SEE ALSO MAGRATH, THE OBSCENITY CASES:  GRAPES
OF ROTH, 1966 SUPREME COURT REVIEW 7, 69-77. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

TWO OF THESE CASES, REDRUP V. NEW YORK AND AUSTIN V. KENTUCKY, WERE
TAKEN TO CONSIDER THE STANDARDS GOVERNING THE APPLICATION OF THE
SCIENTER REQUIREMENT ANNOUNCED IN SMITH V. CALIFORNIA, 361 U.S. 147,
FOR OBSCENITY PROSECUTIONS.  THERE IT WAS HELD THAT A DEFENDANT
CRIMINALLY CHARGED WITH PURVEYING OBSCENE MATERIAL MUST BE SHOWN TO
HAVE HAD SOME KIND OF KNOWLEDGE OF THE CHARACTER OF SUCH MATERIAL; THE
QUALITY OF THAT KNOWLEDGE, HOWEVER, WAS NOT DEFINED.  THE THIRD CASE,
GENT V. ARKANSAS, WAS TAKEN TO CONSIDER THE VALIDITY OF A COMPREHENSIVE
ARKANSAS ANTI-OBSCENITY STATUTE, IN LIGHT OF THE DOCTRINES OF
"VAGUENESS" AND "PRIOR RESTRAINT."  THE WRITS OF CERTIORARI IN REDRUP
AND AUSTIN, AND THE NOTATION OF PROBABLE JURISDICTION IN GENT, WERE
RESPECTIVELY LIMITED TO THESE ISSUES, THUS LAYING ASIDE, FOR THE
PURPOSES OF THESE CASES, THE PERMISSIBILITY OF THE STATE DETERMINATIONS
AS TO THE OBSCENITY OF THE CHALLENGED PUBLICATIONS.  ACCORDINGLY, THE
OBSCENITY VEL NON OF THESE PUBLICATIONS WAS NOT DISCUSSED IN THE BRIEFS
OR ORAL ARGUMENTS OF ANY OF THE PARTIES. 

THE THREE CASES WERE ARGUED TOGETHER AT THE BEGINNING OF THIS TERM. 
TODAY, THE COURT RULES THAT THE MATERIALS COULD NOT CONSTITUTIONALLY BE
ADJUDGED OBSCENE BY THE STATES, THUS RENDERING ADJUDICATION OF THE
OTHER ISSUES UNNECESSARY.  IN SHORT, THE COURT DISPOSES OF THE CASES ON
THE ISSUE THAT WAS DELIBERATELY EXCLUDED FROM REVIEW, AND REFUSES TO
PASS ON THE QUESTIONS THAT BROUGHT THE CASES HERE. 

IN MY OPINION THESE DISPOSITIONS DO NOT REFLECT WELL ON THE PROCESSES
OF THE COURT, AND I THINK THE ISSUES FOR WHICH THE CASES WERE TAKEN
SHOULD BE DECIDED.  FAILING THAT, I PREFER TO CAST MY VOTE TO DISMISS
THE WRITS IN REDRUP AND AUSTIN AS IMPROVIDENTLY GRANTED AND, IN THE
CIRCUMSTANCES, TO DISMISS THE APPEAL IN GENT FOR LACK OF A SUBSTANTIAL
FEDERAL QUESTION.  I DEEM IT MORE APPROPRIATE TO DEFER AN EXPRESSION OF
MY OWN VIEWS ON THE QUESTIONS BROUGHT HERE UNTIL AN OCCASION WHEN THE
COURT IS PREPARED TO COME TO GRIPS WITH SUCH ISSUES. 
..END :













TURNER V. NEW YORK 386 U.S. 773 


NO. 399.  ARGUED APRIL 12-13, 1967.  - DECIDED MAY, 8, 1967.  -
CERTIORARI DISMISSED. 


TURNER ET AL. V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE WRIT IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE FORTAS CONCURRS,
DISSENTING. 

THIS CASE AROSE OUT OF AN ASSEMBLY IN DUFFY SQUARE, NEW YORK CITY,
PROTESTING AMERICAN POLICY IN VIETNAM.  AFTER A FEW MINUTES OF
SPEECHES, THE POLICE DISPERSED THE CROWD, UTILIZING TWO POLICEMEN ON
HORSEBACK AND A DOZEN PATROLMEN. 

THE COMPLAINT CHARGED DISORDERLY CONDUCT: 

"IN THAT WITH INTENT TO PROVOKE A BREACH OF THE PEACE AND UNDER
CIRCUMSTANCES WHEREBY A BREACH OF THE PEACE MIGHT BE OCCASIONED, THE
DEFENDANTS DID UNLAWFULLY CONGREGATE AND ASSEMBLE AT THE ABOVE LOCATION
OBSTRUCTING THE AREA TO THE EXCLUSION OF THOSE WISHING TO USE SAME, AND
DID DELAY VEHICULAR TRAFFIC WHILE CARRYING PLACARDS AND USING LOUD AND
BOISTEROUS LANGUAGE; BY THEIR ACTIONS DID CAUSE A CROWD TO COLLECT;
WHEN ORDERED TO MOVE ON THE DEFENDANTS DID FAIL TO DO SO, AFTER BEING
INFORMED THAT THEIR ACTIONS WERE NOT LAWFUL." 

THE EVIDENCE SHOWED THAT THE MEETING WAS PEACEFUL AND ORDERLY UNTIL
THE HORSES ARRIVED.  UP TO THAT TIME THE CROWD WAS APPARENTLY SMALL
WITH NO ONE PAYING MUCH ATTENTION.  THE BULK OF THE EVIDENCE AT THE
TRIAL RELATED TO ACTS OF INDIVIDUAL PETITIONERS DURING THE PERIOD WHEN
THE POLICE WERE TRYING TO DISPERSE THE CROWD, THAT IS, BETWEEN THE
ADVENT OF THE HORSES AND THE ARRESTS.  AFTER THE APPEARANCE BY THE
POLICE, THERE WAS A MINOR DISTURBANCE, ONE PERSON HITTING A HORSE WITH
A ROLLED-UP CARDBOARD PLACARD, ONE BITING A POLICEMAN, AND ONE LYING
DOWN.  BUT THESE ACTS WERE NOT CHARGED IN THE COMPLAINT.  WHILE NO
OPINION WAS WRITTEN BY THE TRIAL COURT, THE APPELLATE TERM DID WRITE
AND IN ITS OPINION RELIED HEAVILY ON THESE POST-DISPERSION FACTS TO
JUSTIFY THE CONVICTIONS.  48 MISC. 2D 611, 613-618, 265 N.Y.S.2D 841,
843-847, 849.  BUT AS STATED BY JUDGE HOFSTADTER IN DISSENT: 

"THE OCCURRENCES NOW OFFERED AS A BASIS FOR UPHOLDING THE CONVICTIONS
WERE NOT THE SUBJECT OF THE COMPLAINT CHARGED.  AND THE EVENTS,
INCLUDING ANY ALLEGED DISTURBANCE BY ANY DEFENDANT, ENSUING UPON THE
ORDER, WERE THE DIRECT AND IMMEDIATE ISSUE OF A MISCONCEPTION BY THE
POLICE OF THE LAWFUL WARRANT AND SCOPE OF THEIR AUTHORITY."  48 MISC.
2D, AT 630, 265 N.Y.S.2D, AT 860. 

A CONVICTION ON ONE GROUND MAY NOT BE SUSTAINED ON GROUNDS THAT MIGHT
HAVE BEEN CHARGED BUT WERE NOT.  "IT IS AS MUCH A VIOLATION OF DUE
PROCESS TO SEND AN ACCUSED TO PRISON FOLLOWING CONVICTION OF A CHARGE
ON WHICH HE WAS NEVER TRIED AS IT WOULD BE TO CONVICT HIM UPON A CHARGE
THAT WAS NEVER MADE."  COLE V. ARKANSAS, 333 U.S. 196, 201.  AND SEE
SHUTTLESWORTH V. BIRMINGHAM, 382 U.S. 87; ASHTON V. KENTUCKY, 384 U.S.
195. 

LIKEWISE A CONVICTION "UPON A CHARGE NOT MADE" IS NOT CONSISTENT WITH
DUE PROCESS.  DE JONGE V. OREGON, 299 U.S. 353, 362. 

WHERE FIRST AMENDMENT RIGHTS ARE INVOLVED, AS THEY WERE HERE, WE HAVE
BEEN METICULOUS TO INSIST UPON CLEANCUT VIOLATIONS OF ORDINANCES
PROTECTING LAW AND ORDER, LEST BROAD OR FUZZY APPLICATIONS BE USED TO
SUFFOCATE OR IMPAIR THE EXERCISE OF THOSE CONSTITUTIONAL RIGHTS. 
STROMBERG V. CALIFORNIA, 283 U.S. 359, 369; EDWARDS V. SOUTH CAROLINA,
372 U.S. 229, 237; COX V. LOUISIANA, 379 U.S. 536, 551-552; ASHTON V.
KENTUCKY, SUPRA, AT 200-201. 

ISSUES OF THAT CHARACTER AND GRAVITY ARE TENDERED HERE AND I WOULD
RESOLVE THEM. 
..END :






















GRUSS & SON V. UNITED STATES 386 U.S. 776 


NO. 1060.  DECIDED MAY 8, 1967.  - 261 F. SUPP. 386, VACATED AND
REMANDED. 


REVIEW BY THIS COURT OF DISTRICT COURT'S DISMISSAL OF APPELLANT, NEW
HAVEN RAILROAD BONDHOLDER'S, COMPLAINT CHALLENGING ICC'S PENN-CENTRAL
MERGER ORDER HELD INAPPROPRIATE PENDING OUTCOME OF ICC'S FURTHER
CONSIDERATION OF THAT ORDER, SEE BALTIMORE & OHIO R. CO. V. UNITED
STATES, ANTE, P. 372, AND NEW HAVEN RAILROAD INCLUSION PROCEEDINGS. 

OSCAR GRUSS & SON V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

APPELLANT IS A BONDHOLDER OF THE NEW YORK, NEW HAVEN & HARTFORD
RAILROAD COMPANY (THE NEW HAVEN), WHICH IS NOW UNDERGOING A
REORGANIZATION UNDER SEC 77 OF THE BANKRUPTCY ACT 11 U.S.C. SEC 205. 
ON APRIL 6, 1966, THE INTERSTATE COMMERCE COMMISSION DIRECTED INCLUSION
OF THE NEW HAVEN IN THE MERGER OF THE NEW YORK CENTRAL RAILROAD COMPANY
AND THE PENNSYLVANIA RAILROAD COMPANY AS SOON AS TERMS AND CONDITIONS
COULD BE SETTLED, BUT APPROVED THE PENN-CENTRAL MERGER AND AUTHORIZED
ITS CONSUMMATION PRIOR TO SUCH INCLUSION.  APPELLANT THEN PETITIONED
THE COMMISSION TO RECONSIDER THIS ORDER.  THE COMMISSION ALLOWED
APPELLANT TO INTERVENE BUT DENIED THE PETITION TO RECONSIDER, AND
APPELLANT THEN CHALLENGED THE COMMISSION'S ORDER OF APRIL 6 IN THE
DISTRICT COURT, WHICH DISMISSED THE COMPLAINT ON THE GROUND, AMONG
OTHERS, THAT APPELLANT LACKED STANDING TO ATTACK THE PENN-CENTRAL
MERGER.  SINCE THAT TIME THIS COURT HAS REVIEWED OTHER ASPECTS OF THE
COMMISSION'S ORDER APPROVING THE MERGER AND HAS DIRECTED A REMAND TO
THE COMMISSION FOR FURTHER PROCEEDINGS.  BALTIMORE & OHIO R. CO. V.
UNITED STATES, ANTE, P. 372.  SINCE THE ORDER WHICH APPELLANT'S SUIT
ATTACKED IS NOW SUBJECT TO FURTHER CONSIDERATION BY THE COMMISSION AND
SINCE PROCEEDINGS TO ACHIEVE INCLUSION OF THE NEW HAVEN ARE ALSO UNDER
WAY BEFORE THE COMMISSION, IT APPEARS INAPPROPRIATE TO REVIEW THE
DECISION OF THE DISTRICT COURT AT THIS TIME.  RATHER, WE VACATE THE
ORDER OF THE DISTRICT COURT AND REMAND THE CASE TO THAT COURT.  SHOULD
APPELLANT STILL BE DISSATISFIED WITH THE ULTIMATE ORDER OF THE
COMMISSION IN THE MERGER PROCEEDINGS, IT MAY ATTEMPT A FRESH CHALLENGE
IN THE DISTRICT COURT.  IT IS SO ORDERED. 
..END :








ARMORED CARRIER CORP. V. UNITED STATES 386 U.S. 778 


NO. 1011.  DECIDED MAY 8, 1967.  - 260 F. SUPP. 612, AFFIRMED. 


ARMORED CARRIER CORP. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















FIFTH AVENUE COACH LINES V. NEW YORK 386 U.S. 778 


NO. 1095.  DECIDED MAY 8, 1967.  - 18 N.Y.2D 212, 741, 219 N.E.2D 410,
221 N.E.2D 174, APPEAL DISMISSED. 


FIFTH AVENUE COACH LINES, INC., ET AL. V. CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















CALLENDER V. NEW YORK 386 U.S. 779 


NO. 1103.  DECIDED MAY 8, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CALLENDER V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















LAVERNE V. PIRANESI IMPORTS 386 U.S. 779 


NO. 1114.  DECIDED MAY 8, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


LAVERNE V. PIRANESI IMPORTS, INC. 

APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK,
FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















MONTIETH V. OREGON 386 U.S. 780 


NO. 1459, MISC.  DECIDED MAY 8, 1967.  - 246 ORE.  - , 417 P.2D 1012,
APPEAL DISMISSED AND CERTIORARI DENIED. 


MONTIETH V. OREGON. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















UTAH PIE CO. V. CONTINENTAL BAKING 386 U.S. 685 


NO. 18.  ARGUED JANUARY 17, 1967.  - DECIDED APRIL 24, 1967.  - 349 F.2D
122, REVERSED AND REMANDED. 


THIS SUIT FOR TREBLE DAMAGES AND AN INJUNCTION BY PETITIONER, A LOCAL
BAKERY COMPANY IN SALT LAKE CITY, AGAINST THREE LARGE COMPANIES EACH OF
WHICH IS A MAJOR FACTOR IN THE FROZEN PIE MARKET IN ONE OR MORE REGIONS
OF THE COUNTRY, CHARGED A CONSPIRACY UNDER SECS 1 AND 2 OF THE SHERMAN
ACT AND VIOLATIONS BY EACH RESPONDENT OF SEC. 2(A) OF THE CLAYTON ACT,
AS AMENDED BY THE ROBINSON-PATMAN ACT.  THE MAJOR COMPETITIVE WEAPON IN
THE SALT LAKE CITY MARKET WAS PRICE AND FOR MOST OF THE PERIOD
PETITIONER, WHICH HAD THE ADVANTAGE OF A LOCAL PLANT, HAD THE LOWEST
PRICES.  EACH RESPONDENT AT SOME TIME ENGAGED IN DISCRIMINATORY PRICING
AND THEREBY CONTRIBUTED TO A DETERIORATING PRICE STRUCTURE DURING THE
RELEVANT PERIOD.  RESPONDENT PET MILK SOLD PIES TO SAFEWAY UNDER THE
LATTER'S LABEL AT A PRICE WELL BELOW THAT FOR ITS PROPRIETARY LABEL
PIES; IT SOLD AN ECONOMY PIE IN THE SALT LAKE CITY MARKET AT A PRICE
WHICH WAS AT TIMES LOWER THAN THAT IN OTHER MARKETS; AND IT SOLD ITS
PROPRIETARY LABEL QUALITY PIES IN SALT LAKE CITY FOR SOME MONTHS AT
PRICES LOWER THAN THOSE IN CALIFORNIA, DESPITE FREIGHT CHARGES FROM ITS
CALIFORNIA PLANT.  PET ADMITTED SENDING A SPY INTO PETITIONER'S PLANT
DURING ITS NEGOTIATIONS WITH SAFEWAY, BUT DENIED USING WHAT IT
LEARNED.  PET DID NOT DENY THAT IT SUFFERED LOSSES ON ITS PIES DURING
THE GREATER PART OF THE PERIOD INVOLVED.  IN JUNE 1961 RESPONDENT
CONTINENTAL BAKING CUT ITS PRICE IN THE UTAH AREA TO A LEVEL WELL BELOW
THAT APPLICABLE ELSEWHERE, AND LESS THAN ITS DIRECT COST PLUS AN
ALLOCATION FOR OVERHEAD.  CARNATION CO., WHOSE SHARE OF THE MARKET
SLIPPED IN 1959, SLASHED ITS PRICE IN 1960, AND FOR EIGHT MONTHS OF
THAT YEAR ITS SALT LAKE CITY PRICE WAS LOWER THAN THAT IN OTHER
MARKETS, AND THAT TREND CONTINUED IN 1961.  THE JURY FOUND FOR
RESPONDENTS ON THE CONSPIRACY CHARGE AND FOR PETITIONER ON THE PRICE
DISCRIMINATION CHARGE.  JUDGMENT WAS ENTERED FOR PETITIONER FOR DAMAGES
BUT THE COURT OF APPEALS REVERSED, HOLDING THAT THE EVIDENCE WAS
INSUFFICIENT TO SUPPORT A FINDING OF PROBABLE INJURY TO COMPETITION
WITHIN THE MEANING OF SEC. 2(A).  THE COURT CONCLUDED THAT PET'S PRICE
DIFFERENTIAL TO SAFEWAY WAS COST JUSTIFIED, AND THAT PET'S OTHER
DISCRIMINATIONS DID NOT PROVIDE SUFFICIENT BASIS ON WHICH THE JURY
COULD HAVE FOUND A REASONABLY POSSIBLE INJURY TO PETITIONER AS A
COMPETITIVE FORCE OR TO COMPETITION GENERALLY.  IT CONCLUDED THAT THE
CONDUCT OF CONTINENTAL AND CARNATION HAD ONLY MINIMAL EFFECT, THAT IT
HAD NOT INJURED PETITIONER AS A COMPETITOR, AND THAT IT HAD NOT
SUBSTANTIALLY LESSENED COMPETITION.  HELD: 

1.  SECTION 2(A) DOES NOT FORBID PRICE COMPETITION BUT IT DOES
PROVIDE THAT SELLERS MAY NOT SELL GOODS TO DIFFERENT PURCHASERS AT
DIFFERENT PRICES IF THE RESULT MAY BE TO INJURE COMPETITION IN EITHER
THE SELLERS' OR THE BUYERS' MARKET UNLESS SUCH DISCRIMINATIONS ARE
JUSTIFIED AS PERMITTED BY THE ACT.  P. 702. 

(A)  THERE CAN BE A REASONABLY POSSIBLE INJURY TO COMPETITION EVEN
THOUGH THE VOLUME OF SALES IS RISING AND SOME OF THE COMPETITORS IN THE
MARKET CONTINUE TO OPERATE AT A PROFIT.  P. 702. 

(B)  SECTION 2(A) DOES NOT COME INTO PLAY SOLELY TO REGULATE THE
CONDUCT OF PRICE DISCRIMINATORS WHO CONSISTENTLY UNDERCUT THE PRICES OF
OTHER COMPETITORS.  P. 702. 

2.  THE EXISTENCE OF PREDATORY INTENT BEARS ON THE LIKELIHOOD OF
INJURY TO COMPETITION.  PP. 702-703. 

(A)  THERE WAS EVIDENCE OF PREDATORY INTENT WITH RESPECT TO EACH OF
THE RESPONDENTS AND THERE WAS OTHER EVIDENCE UPON WHICH THE JURY COULD
FIND THE REQUISITE INJURY TO COMPETITION.  PP. 702-703. 

(B)  SECTION 2(A) REACHES PRICE DISCRIMINATION THAT ERODES
COMPETITION AS MUCH AS IT DOES PRICE DISCRIMINATION THAT IS INTENDED TO
HAVE IMMEDIATE DESTRUCTIVE IMPACT.  P. 703. 

3.  SINCE THE STATUTORY TEST IS ONE THAT LOOKS FORWARD ON THE BASIS
OF PROVEN PAST CONDUCT, THE JURY WAS ENTITLED TO CONCLUDE THAT, WHERE
THE EVIDENCE SHOWED A DRASTICALLY DECLINING PRICE STRUCTURE WHICH COULD
BE ATTRIBUTED TO CONTINUED OR SPORADIC PRICE DISCRIMINATION, "THE
EFFECT OF SUCH DISCRIMINATION" BY RESPONDENTS "MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION  ...  OR TO INJURE, DESTROY, OR PREVENT COMPETITION
WITH ANY PERSON WHO EITHER GRANTS OR KNOWINGLY RECEIVES THE BENEFIT OF
SUCH DISCRIMINATION  ...  ."  P. 703. 

UTAH PIE CO. V. CONTINENTAL BAKING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS SUIT FOR TREBLE DAMAGES AND INJUNCTION UNDER SECS 4 AND 16 OF
THE CLAYTON ACT, 38 STAT. 731, 737, 15 U.S.C. SECS 15 AND 26  (FN1)
WAS BROUGHT BY PETITIONER, UTAH PIE COMPANY, AGAINST RESPONDENTS,
CONTINENTAL BAKING COMPANY, CARNATION COMPANY AND PET MILK COMPANY. 
THE COMPLAINT CHARGED A CONSPIRACY UNDER SECS 1 AND 2 OF THE SHERMAN
ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. SECS. 1 AND 2, AND VIOLATIONS
BY EACH RESPONDENT OF SEC. 2(A) OF THE CLAYTON ACT AS AMENDED BY THE
ROBINSON-PATMAN ACT, 49 STAT. 1526, 15 U.S.C. SEC. 13(A).  (FN2)  THE
JURY FOUND FOR RESPONDENTS ON THE CONSPIRACY CHARGE AND FOR PETITIONER
ON THE PRICE DISCRIMINATION CHARGE.  (FN3)  JUDGMENT WAS ENTERED FOR
PETITIONER FOR DAMAGES AND ATTORNEYS' FEES AND RESPONDENTS APPEALED ON
SEVERAL GROUNDS.  THE COURT OF APPEALS REVERSED, ADDRESSING ITSELF TO
THE SINGLE ISSUE OF WHETHER THE EVIDENCE AGAINST EACH OF THE
RESPONDENTS WAS SUFFICIENT TO SUPPORT A FINDING OF PROBABLE INJURY TO
COMPETITION WITHIN THE MEANING OF SEC. 2(A) AND HOLDING THAT IT WAS
NOT.  349 F.2D 122.  WE GRANTED CERTIORARI.  382 U.S. 914.(  (FN4)  WE
REVERSE. 

THE PRODUCT INVOLVED IS FROZEN DESSERT PIES - APPLE, CHERRY,
BOYSENBERRY, PEACH, PUMPKIN, AND MINCE.  THE PERIOD COVERED BY THE SUIT
COMPRISED THE YEARS 1958, 1959, AND 1960 AND THE FIRST EIGHT MONTHS OF
1961.  PETITIONER IS A UTAH CORPORATION WHICH FOR 30 YEARS HAS BEEN
BAKING PIES IN ITS PLANT IN SALT LAKE CITY AND SELLING THEM IN UTAH AND
SURROUNDING STATES.  IT ENTERED THE FROZEN PIE BUSINESS IN LATE 1957. 
IT WAS IMMEDIATELY SUCCESSFUL WITH ITS NEW LINE AND BUILT A NEW PLANT
IN SALT LAKE CITY IN 1958.  THE FROZEN PIE MARKET WAS A RAPIDLY
EXPANDING ONE:  57,060 DOZEN FROZEN PIES WERE SOLD IN THE SALT LAKE
CITY MARKET IN 1958, 111,729 DOZEN IN 1959, 184,569 DOZEN IN 1960, AND
266,908 DOZEN IN 1961.  UTAH PIE'S SHARE OF THIS MARKET IN THOSE YEARS
WAS 66.5%, 34.3% 45.5%, AND 45.3% RESPECTIVELY, ITS SALES VOLUME
STEADILY INCREASING OVER THE FOUR YEARS.  ITS FINANCIAL POSITION ALSO
IMPROVED.  PETITIONER IS NOT, HOWEVER, A LARGE COMPANY.  AT THE TIME OF
THE TRIAL, PETITIONER OPERATED WITH ONLY 18 EMPLOYEES, NINE OF WHOM
WERE MEMBERS OF THE RIGBY FAMILY, WHICH CONTROLLED THE BUSINESS.  ITS
NET WORTH INCREASED FROM $31,651.98 ON OCTOBER 31, 1957, TO $68,802.13
ON OCTOBER 31, 1961.  TOTAL SALES WERE $238,000 IN THE YEAR ENDED
OCTOBER 31, 1957, $353,000 IN 1958, $430,000 IN 1959, $504,000 IN 1960
AND $589,000 IN 1961.  ITS NET INCOME OR LOSS FOR THESE SAME YEARS WAS
A LOSS OF $6,461 IN 1957, AND NET INCOME IN THE REMAINING YEARS OF
$7,090, $11,897, $7,636, AND $9,216. 

EACH OF THE RESPONDENTS IS A LARGE COMPANY AND EACH OF THEM IS A
MAJOR FACTOR IN THE FROZEN PIE MARKET IN ONE OR MORE REGIONS OF THE
COUNTRY.  EACH ENTERED THE SALT LAKE CITY FROZEN PIE MARKET BEFORE
PETITIONER BEGAN FREEZING DESSERT PIES.  NONE OF THEM HAD A PLANT IN
UTAH.  BY THE END OF THE PERIOD INVOLVED IN THIS SUIT PET HAD PLANTS IN
MICHIGAN, PENNSYLVANIA, AND CALIFORNIA; CONTINENTAL IN VIRGINIA, IOWA,
AND CALIFORNIA; AND CARNATION IN CALIFORNIA.  THE SALT LAKE CITY MARKET
WAS SUPPLIED BY RESPONDENTS CHIEFLY FROM THEIR CALIFORNIA OPERATIONS. 
THEY SOLD PRIMARILY ON A DELIVERED PRICE BASIS. 

THE "UTAH" LABEL WAS PETITIONER'S PROPRIETARY BRAND.  BEGINNING IN
1960, IT ALSO SOLD PIES OF LIKE GRADE AND QUALITY UNDER THE CONTROLLED
LABEL "FROST 'N' FLAME" TO ASSOCIATED GROCERS AND IN 1961 IT BEGAN
SELLING TO AMERICAN FOOD STORES UNDER THE "MAYFRESH" LABEL.  (FN5)  IT
ALSO, ON A SEASONAL BASIS, SOLD PUMPKIN AND MINCE FROZEN PIES TO
SAFEWAY UNDER SAFEWAY'S OWN "BEL-AIR" LABEL. 

THE MAJOR COMPETITIVE WEAPON IN THE UTAH MARKET WAS PRICE.  THE
LOCATION OF PETITIONER'S PLANT GAVE IT NATURAL ADVANTAGES IN THE SALT
LAKE CITY MARKETING AREA AND IT ENTERED THE MARKET AT A PRICE BELOW THE
THEN GOING PRICES FOR RESPONDENTS' COMPARABLE PIES.  FOR MOST OF THE
PERIOD INVOLVED HERE ITS PRICES WERE THE LOWEST IN THE SALT LAKE CITY
MARKET.  IT WAS, HOWEVER, CHALLENGED BY EACH OF THE RESPONDENTS AT ONE
TIME OR ANOTHER AND FOR VARYING PERIODS.  THERE WAS AMPLE EVIDENCE TO
SHOW THAT EACH OF THE RESPONDENTS CONTRIBUTED TO WHAT PROVED TO BE A
DETERIORATING PRICE STRUCTURE OVER THE PERIOD COVERED BY THIS SUIT, AND
EACH OF THE RESPONDENTS IN THE COURSE OF THE ONGOING PRICE COMPETITION
SOLD FROZEN PIES IN THE SALT LAKE MARKET AT PRICES LOWER THAN IT SOLD
PIES OF LIKE GRADE AND QUALITY IN OTHER MARKETS CONSIDERABLY CLOSER TO
ITS PLANTS.  UTAH PIE, WHICH ENTERED THE MARKET AT A PRICE OF $4.15 PER
DOZEN AT THE BEGINNING OF THE RELEVANT PERIOD, WAS SELLING "UTAH" AND
"FROST 'N' FLAME" PIES FOR $2.75 PER DOZEN WHEN THE INSTANT SUIT WAS
FILED SOME 44 MONTHS LATER.  (FN6) PET, WHICH WAS OFFERING PIES AT
$4.92 PER DOZEN IN FEBRUARY 1958, WAS OFFERING "PET-RITZ" AND "BEL-AIR"
PIES AT $3.56 AND $3.46 PER DOZEN RESPECTIVELY IN MARCH AND APRIL
1961.  CARNATION'S PRICE IN EARLY 1958 WAS $4.82 PER DOZEN BUT IT WAS
SELLING AT $3.46 PER DOZEN AT THE CONCLUSION OF THE PERIOD, MEANWHILE
HAVING BEEN DOWN AS LOW AS $3.30 PER DOZEN.  THE PRICE RANGE
EXPERIENCED BY CONTINENTAL DURING THE PERIOD COVERED BY THIS SUIT RAN
FROM A 1958 HIGH OF OVER $5 PER DOZEN TO A 1961 LOW OF $2.85 PER
DOZEN.  (FN7)

                    I. 

WE DEAL FIRST WITH PETITIONER'S CASE AGAINST THE PET MILK COMPANY. 
PET ENTERED THE FROZEN PIE BUSINESS IN 1955, ACQUIRED PLANTS IN
PENNSYLVANIA AND CALIFORNIA AND UNDERTOOK A LARGE ADVERTISING CAMPAIGN
TO MARKET ITS "PET-RITZ" BRAND OF FROZEN PIES.  PET'S INITIAL EMPHASIS
WAS ON QUALITY, BUT IN THE FACE OF COMPETITION FROM REGIONAL AND LOCAL
COMPANIES AND IN AN EXPANDING MARKET WHERE PRICE PROVED TO BE A CRUCIAL
FACTOR, PET WAS FORCED TO TAKE STEPS TO REDUCE THE PRICE OF ITS PIES TO
THE ULTIMATE CONSUMER.  THESE DEVELOPMENTS HAD CONSEQUENCES IN THE SALT
LAKE CITY MARKET WHICH ARE THE SUBSTANCE OF PETITIONER'S CASE AGAINST
PET. 

FIRST, PET SUCCESSFULLY CONCLUDED AN ARRANGEMENT WITH SAFEWAY, WHICH
IS ONE OF THE THREE LARGEST CUSTOMERS FOR FROZEN PIES IN THE SALT LAKE
MARKET, WHEREBY IT WOULD SELL FROZEN PIES TO SAFEWAY UNDER THE LATTER'S
OWN "BEL-AIR" LABEL AT A PRICE SIGNIFICANTLY LOWER THAN IT WAS SELLING
ITS COMPARABLE "PET-RITZ" BRAND IN THE SAME SALT LAKE MARKET AND
ELSEWHERE.  (FN8)  THE INITIAL PRICE ON "BEL-AIR" PIES WAS SLIGHTLY
LOWER THAN UTAH'S PRICE FOR ITS "UTAH" BRAND OF PIES AT THE TIME, AND
NEAR THE END OF THE PERIOD THE "BEL-AIR" PRICE WAS COMPARABLE TO THE
"UTAH" PRICE BUT HIGHER THAN UTAH'S "FROST 'N' FLAME" BRAND.  PET'S
SAFEWAY BUSINESS AMOUNTED TO 22.8%, 12.3%, AND 6.3% OF THE ENTIRE SALT
LAKE CITY MARKET FOR THE YEARS 1959, 1960, AND 1961, RESPECTIVELY, AND
TO 64%, 44%, AND 22% OF PET'S OWN SALT LAKE CITY SALES FOR THOSE SAME
YEARS. 

SECOND, IT INTRODUCED A 20-OUNCE ECONOMY PIE UNDER THE "SWISS MISS"
LABEL AND BEGAN SELLING THE NEW PIE IN THE SALT LAKE MARKET IN AUGUST
1960 AT PRICES RANGING FROM $3.25 TO $3.30 FOR THE REMAINDER OF THE
PERIOD.  THIS PIE WAS AT TIMES SOLD AT A LOWER PRICE IN THE SALT LAKE
CITY MARKET THAN IT WAS SOLD IN OTHER MARKETS. 

THIRD, PET BECAME MORE COMPETITIVE WITH RESPECT TO THE PRICES FOR ITS
"PET-RITZ" PROPRIETARY LABEL.  FOR 18 OF THE RELEVANT 44 MONTHS ITS
OFFERING PRICE FOR PET-RITZ PIES WAS $4 PER DOZEN OR LOWER, AND $3.70
OR LOWER FOR SIX OF THESE MONTHS.  ACCORDING TO THE COURT OF APPEALS,
IN SEVEN OF THE 44 MONTHS PET'S PRICES IN SALT LAKE WERE LOWER THAN
PRICES CHARGED IN THE CALIFORNIA MARKETS.  THIS WAS TRUE ALTHOUGH
SELLING IN SALT LAKE INVOLVED A 30- TO 35-CENT FREIGHT COST. 

THE COURT OF APPEALS FIRST CONCLUDED THAT PET'S PRICE DIFFERENTIAL ON
SALES TO SAFEWAY MUST BE PUT ASIDE IN CONSIDERING INJURY TO COMPETITION
BECAUSE IN ITS VIEW OF THE EVIDENCE THE DIFFERENTIAL HAD BEEN
COMPLETELY COST JUSTIFIED AND BECAUSE UTAH WOULD NOT IN ANY EVENT HAVE
BEEN ABLE TO ENJOY THE SAFEWAY CUSTOM.  SECOND, IT CONCLUDED THAT THE
REMAINING DISCRIMINATIONS ON "PET-RITZ" AND "SWISS MISS" PIES WERE AN
INSUFFICIENT PREDICATE ON WHICH THE JURY COULD HAVE FOUND A REASONABLY
POSSIBLE INJURY EITHER TO UTAH PIE AS A COMPETITIVE FORCE OR TO
COMPETITION GENERALLY. 

WE DISAGREE WITH THE COURT OF APPEALS IN SEVERAL RESPECTS.  FIRST,
THERE WAS EVIDENCE FROM WHICH THE JURY COULD HAVE FOUND CONSIDERABLY
MORE PRICE DISCRIMINATION BY PET WITH RESPECT TO "PET-RITZ" AND "SWISS
MISS" PIES THAN WAS CONSIDERED BY THE COURT OF APPEALS.  IN ADDITION TO
THE SEVEN MONTHS DURING WHICH PET'S PRICES IN SALT LAKE WERE LOWER THAN
PRICES IN THE CALIFORNIA MARKETS, THERE WAS EVIDENCE FROM WHICH THE
JURY COULD REASONABLY HAVE FOUND THAT IN 10 ADDITIONAL MONTHS THE SALT
LAKE CITY PRICES FOR "PET-RITZ" PIES WERE DISCRIMINATORY AS COMPARED
WITH SALES IN WESTERN MARKETS OTHER THAN CALIFORNIA.  LIKEWISE, WITH
RESPECT TO "SWISS MISS" PIES, THERE WAS EVIDENCE IN THE RECORD FROM
WHICH THE JURY COULD HAVE FOUND THAT IN FIVE OF THE 13 MONTHS DURING
WHICH THE "SWISS MISS" PIES WERE SOLD PRIOR TO THE FILING OF THIS SUIT,
PRICES IN SALT LAKE CITY WERE LOWER THAN THOSE CHARGED BY PET IN EITHER
CALIFORNIA OR SOME OTHER WESTERN MARKET. 

SECOND, WITH RESPECT TO PET'S SAFEWAY BUSINESS, THE BURDEN OF PROVING
COST JUSTIFICATION WAS ON PET  (FN9)  AND, IN OUR VIEW, REASONABLE MEN
COULD HAVE FOUND THAT PET'S LOWER PRICED, "BEL-AIR" SALES TO SAFEWAY
WERE NOT COST JUSTIFIED IN THEIR ENTIRETY.  PET INTRODUCED COST DATA
FOR 1961 INDICATING A COST SAVING ON THE SAFEWAY BUSINESS GREATER THAN
THE PRICE ADVANTAGE EXTENDED TO THAT CUSTOMER.  THESE STATISTICS WERE
NOT PARTICULARIZED FOR THE SALT LAKE MARKET, BUT ASSUMING THAT THEY
WERE ADEQUATE TO JUSTIFY THE 1961 SALES, THEY RELATED TO ONLY 24% OF
THE SAFEWAY SALES OVER THE RELEVANT PERIOD.  THE EVIDENCE CONCERNING
THE REMAINING 76% WAS AT BEST INCOMPLETE AND INFERENTIAL.  IT WAS
INSUFFICIENT TO TAKE THE DEFENSE OF COST JUSTIFICATION FROM THE JURY,
WHICH REASONABLY COULD HAVE FOUND A GREATER INCIDENCE OF UNJUSTIFIED
PRICE DISCRIMINATION THAN THAT ALLOWED BY THE COURT OF APPEALS' VIEW OF
THE EVIDENCE.  (FN10) 

WITH RESPECT TO WHETHER UTAH WOULD HAVE ENJOYED SAFEWAY'S BUSINESS
ABSENT THE PET CONTRACT WITH SAFEWAY, IT SEEMS CLEAR THAT WHATEVER THE
FACT IS IN THIS REGARD, IT IS NOT DETERMINATIVE OF THE IMPACT OF THAT
CONTRACT ON COMPETITORS OTHER THAN UTAH AND ON COMPETITION GENERALLY. 
THERE WERE OTHER COMPANIES SEEKING THE SAFEWAY BUSINESS, INCLUDING
CONTINENTAL AND CARNATION, WHOSE PIES MAY HAVE BEEN EXCLUDED FROM THE
SAFEWAY SHELVES BY WHAT THE JURY COULD HAVE FOUND TO BE DISCRIMINATORY
SALES TO SAFEWAY.  (FN11)  WHAT IS MORE, PET'S EVIDENCE THAT UTAH'S
UNWILLINGNESS TO INSTALL QUALITY CONTROL EQUIPMENT PREVENTED UTAH FROM
ENJOYING SAFEWAY'S PRIVATE LABEL BUSINESS IS NOT THE ONLY EVIDENCE IN
THE RECORD RELEVANT TO THAT QUESTION.  THERE WAS OTHER EVIDENCE TO THE
CONTRARY.  THE JURY WOULD NOT HAVE BEEN COMPELLED TO FIND THAT UTAH PIE
COULD NOT HAVE GAINED MORE OF THE SAFEWAY BUSINESS. 

THIRD, THE COURT OF APPEALS ALMOST ENTIRELY IGNORED OTHER EVIDENCE
WHICH PROVIDES MATERIAL SUPPORT FOR THE JURY'S CONCLUSION THAT PET'S
BEHAVIOR SATISFIED THE STATUTORY TEST REGARDING COMPETITIVE INJURY. 
THIS EVIDENCE BORE ON THE ISSUE OF PET'S PREDATORY INTENT TO INJURE
UTAH PIE.  (FN12)  AS A INITIAL MATTER, THE JURY COULD HAVE CONCLUDED
THAT PET'S DISCRIMINATORY PRICING WAS AIMED AT UTAH PIE; PET'S OWN
MANAGEMENT, AS EARLY AS 1959, IDENTIFIED UTAH PIE AS AN "UNFAVORABLE
FACTOR," ONE WHICH "DUG HOLES IN OUR OPERATION" AND POSED A CONSTANT
"CHECK" ON PET'S PERFORMANCE IN THE SALT LAKE CITY MARKET.  MOREOVER,
PET CANDIDLY ADMITTED THAT DURING THE PERIOD WHEN IT WAS ESTABLISHING
ITS RELATIONSHIP WITH SAFEWAY, IT SENT INTO UTAH PIE'S PLANT AN
INDUSTRIAL SPY TO SEEK INFORMATION THAT WOULD BE OF USE TO PET IN
CONVINCING SAFEWAY THAT UTAH PIE WAS NOT WORTHY OF ITS CUSTOM.  PET
DENIED THAT IT EVER IN FACT USED WHAT IT HAD LEARNED AGAINST UTAH PIE
IN COMPETING FOR SAFEWAY'S BUSINESS.  THE PARTIES, HOWEVER, ARE NOT THE
ULTIMATE JUDGES OF CREDIBILITY.  BUT EVEN GIVING PET'S VIEW OF THE
INCIDENT A MEASURE OF WEIGHT DOES NOT MEAN THE JURY WAS FORECLOSED FROM
CONSIDERING THE PREDATORY INTENT UNDERLYING PET'S MODE OF COMPETITION. 
FINALLY, PET DOES NOT DENY THAT THE EVIDENCE SHOWED IT SUFFERED
SUBSTANTIAL LOSSES ON ITS FROZEN PIE SALES DURING THE GREATER PART OF
THE TIME INVOLVED IN THIS SUIT, AND THERE WAS EVIDENCE FROM WHICH THE
JURY COULD HAVE CONCLUDED THAT THE LOSSES PET SUSTAINED IN SALT LAKE
CITY WERE GREATER THAN THOSE INCURRED ELSEWHERE.  IT WOULD NOT HAVE
BEEN AN IRRATIONAL STEP IF THE JURY CONCLUDED THAT THERE WAS A
RELATIONSHIP BETWEEN PRICE AND THE LOSSES. 

IT SEEMS CLEAR TO US THAT THE JURY HEARD ADEQUATE EVIDENCE FROM WHICH
IT COULD HAVE CONCLUDED THAT PET HAD ENGAGED IN PREDATORY TACTICS IN
WAGING COMPETITIVE WARFARE IN THE SALT LAKE CITY MARKET.  COUPLED WITH
THE INCIDENCE OF PRICE DISCRIMINATION ATTRIBUTABLE TO PET, THE EVIDENCE
AS A WHOLE ESTABLISHED, RATHER THAN NEGATED, THE REASONABLE POSSIBILITY
THAT PET'S BEHAVIOR PRODUCED A LESSENING OF COMPETITION PROSCRIBED BY
THE ACT.                                                   II. 

PETITIONER'S CASE AGAINST CONTINENTAL IS NOT COMPLICATED. 
CONTINENTAL WAS A SUBSTANTIAL FACTOR IN THE MARKET IN 1957.  BUT ITS
SALES OF FROZEN 22-OUNCE DESSERT PIES, SOLD UNDER THE "MORTON" BRAND,
AMOUNTED TO ONLY 1.3% OF THE MARKET IN 1958, 2.9% IN 1959, AND 1.8% IN
1960.  ITS PROBLEMS WERE PRIMARILY THAT OF COST AND IN TURN THAT OF
PRICE, THE CONTROLLING FACTOR IN THE MARKET.  IN LATE 1960 IT WORKED
OUT A CO-PACKING ARRANGEMENT IN CALIFORNIA BY WHICH FRUIT WOULD BE
PROCESSED DIRECTLY FROM THE TREES INTO THE FINISHED PIE WITHOUT LARGE
INTERMEDIATE PACKING, STORING, AND SHIPPING EXPENSES.  HAVING IMPROVED
ITS POSITION, IT ATTEMPTED TO INCREASE ITS SHARE OF THE SALT LAKE CITY
MARKET BY UTILIZING A LOCAL BROKER AND OFFERING SHORT-TERM PRICE
CONCESSIONS IN VARYING AMOUNTS.  ITS EFFORTS FOR SEVEN MONTHS WERE NOT
SPECTACULARLY SUCCESSFUL.  THEN IN JUNE 1961, IT TOOK THE STEPS WHICH
ARE THE HEART OF PETITIONER'S COMPLAINT AGAINST IT.  EFFECTIVE FOR THE
LAST TWO WEEKS OF JUNE IT OFFERED ITS 22-OUNCE FROZEN APPLE PIES IN THE
UTAH AREA AT $2.85 PER DOZEN.  IT WAS THEN SELLING THE SAME PIES AT
SUBSTANTIALLY HIGHER PRICES IN OTHER MARKETS.  THE SALT LAKE CITY PRICE
WAS LESS THAN ITS DIRECT COST PLUS AN ALLOCATION FOR OVERHEAD.  UTAH'S
GOING PRICE AT THE TIME FOR ITS 24-OUNCE "FROST 'N' FLAME" APPLE PIE
SOLD TO ASSOCIATED GROCERS WAS $3.10 PER DOZEN, AND FOR ITS "UTAH"
BRAND $3.40 PER DOZEN.  AT ITS NEW PRICES, CONTINENTAL SOLD PIES TO
AMERICAN GROCERS IN POCATELLO, IDAHO, AND TO AMERICAN FOOD STORES IN
OGDEN, UTAH.  SAFEWAY, ONE OF THE MAJOR BUYERS IN SALT LAKE CITY, ALSO
PURCHASED 6,250 DOZEN, ITS REQUIREMENTS FOR ABOUT FIVE WEEKS.  ANOTHER
PURCHASER ORDERED 1,000 DOZEN.  UTAH'S RESPONSE WAS IMMEDIATE.  IT
REDUCED ITS PRICE ON ALL OF ITS APPLE PIES TO $2.75 PER DOZEN. 
CONTINENTAL REFUSED SAFEWAY'S REQUEST TO MATCH UTAH'S PRICE, BUT
RENEWED ITS OFFER AT THE SAME PRICES EFFECTIVE JULY 31 FOR ANOTHER TWO
WEEK PERIOD.  UTAH FILED SUIT ON SEPTEMBER 8, 1961.  CONTINENTAL'S
TOTAL SALES OF FROZEN PIES INCREASED FROM 3,350 DOZEN IN 1960 TO 18,800
DOZEN IN 1961.  ITS MARKET SHARE INCREASED FROM 1.8% IN 1960 TO 8.3% IN
1961.  THE COURT OF APPEALS CONCLUDED THAT CONTINENTAL'S CONDUCT HAD
HAD ONLY MINIMAL EFFECT, THAT IT HAD NOT INJURED OR WEAKENED UTAH PIE
AS A COMPETITOR, THAT IT HAD NOT SUBSTANTIALLY LESSENED COMPETITION AND
THAT THERE WAS NO REASONABLE POSSIBILITY THAT IT WOULD DO SO IN THE
FUTURE. 

WE AGAIN DIFFER WITH THE COURT OF APPEALS.  ITS OPINION THAT UTAH WAS
NOT DAMAGED AS A COMPETITIVE FORCE APPARENTLY RESTED ON THE FACT THAT
UTAH'S SALES VOLUME CONTINUED TO CLIMB IN 1961 AND ON THE COURT'S OWN
FACTUAL CONCLUSION THAT UTAH WAS NOT DEPRIVED OF ANY PIE BUSINESS WHICH
IT OTHERWISE MIGHT HAVE HAD.  BUT THIS RETROSPECTIVE ASSESSMENT FAILS
TO NOTE THAT CONTINENTAL'S DISCRIMINATORY BELOW-COST PRICE CAUSED UTAH
PIE TO REDUCE ITS PRICE TO $2.75.  THE JURY WAS ENTITLED TO CONSIDER
THE POTENTIAL IMPACT OF CONTINENTAL'S PRICE REDUCTION ABSENT ANY
RESPONSIVE PRICE CUT BY UTAH PIE.  PRICE WAS A MAJOR FACTOR IN THE SALT
LAKE CITY MARKET.  SAFEWAY, WHICH HAD BEEN BUYING UTAH BRAND PIES,
IMMEDIATELY REACTED AND PURCHASED A FIVE-WEEK SUPPLY OF FROZEN PIES
FROM CONTINENTAL, THEREBY TEMPORARILY FORECLOSING THE PROPRIETARY
BRANDS OF UTAH AND OTHER FIRMS FROM THE SALT LAKE CITY SAFEWAY MARKET. 
THE JURY COULD RATIONALLY HAVE CONCLUDED THAT HAD UTAH NOT LOWERED IT
PRICE, CONTINENTAL, WHICH REPEATED ITS OFFER ONCE, WOULD HAVE CONTINUED
IT, THAT SAFEWAY WOULD HAVE CONTINUED TO BUY FROM CONTINENTAL AND THAT
OTHER BUYERS, LARGE AS WELL AS SMALL, WOULD HAVE FOLLOWED SUIT.  IT
COULD ALSO HAVE REASONABLY CONCLUDED THAT A COMPETITOR WHO IS FORCED TO
REDUCE HIS PRICE TO A NEW ALL-TIME LOW IN A MARKET OF DECLINING PRICES
WILL IN TIME FEEL THE FINANCIAL PINCH AND WILL BE A LESS EFFECTIVE
COMPETITIVE FORCE. 

EVEN IF THE IMPACT ON UTAH PIE AS A COMPETITOR WAS NEGLIGIBLE, THERE
REMAIN THE CONSEQUENCES TO OTHERS IN THE MARKET WHO HAD TO COMPETE NOT
ONLY WITH CONTINENTAL'S 22-OUNCE PIE AT $2.85 BUT WITH UTAH'S EVEN
LOWER PRICE OF $2.75 PER DOZEN FOR BOTH ITS PROPRIETARY AND CONTROLLED
LABELS.  PETITIONER AND RESPONDENTS WERE NOT THE ONLY SELLERS IN THE
SALT LAKE CITY MARKET, ALTHOUGH THEY DID ACCOUNT FOR 91.8% OF THE SALES
IN 1961.  THE EVIDENCE WAS THAT THERE WERE NINE OTHER SELLERS IN 1960
WHO SOLD 23,473 DOZEN PIES, 12.7% OF THE TOTAL MARKET.  IN 1961 THERE
WERE EIGHT OTHER SELLERS WHO SOLD LESS THAN THE YEAR BEFORE - 18,565
DOZEN OR 8.2% OF THE TOTAL - ALTHOUGH THE TOTAL MARKET HAD EXPANDED
FROM 184,569 DOZEN TO 226,908 DOZEN.  WE THINK THERE WAS SUFFICIENT
EVIDENCE FROM WHICH THE JURY COULD FIND A VIOLATION OF SEC. 2(A) BY
CONTINENTAL. 

      III. 

THE CARNATION COMPANY ENTERED THE FROZEN DESSERT PIE BUSINESS IN 1955
THROUGH THE ACQUISITION OF "MRS.  LEE'S PIES" WHICH WAS THEN ENGAGED IN
MANUFACTURING AND SELLING FROZEN PIES IN UTAH AND ELSEWHERE UNDER THE
"SIMPLE SIMON" LABEL.  CARNATION ALSO QUICKLY FOUND THE MARKET
EXTREMELY SENSITIVE TO PRICE.  CARNATION DECIDED, HOWEVER, NOT TO ENTER
AN ECONOMY PRODUCT IN THE MARKET, AND DURING THE PERIOD COVERED BY THIS
SUIT IT OFFERED ONLY ITS QUALITY "SIMPLE SIMON" BRAND.  ITS PRIMARY
METHOD OF MEETING COMPETITION IN ITS MARKETS WAS TO OFFER A VARIETY OF
DISCOUNTS AND OTHER REDUCTIONS, AND THE TECHNIQUE WAS NOT
UNSUCCESSFUL.  IN 1958, FOR EXAMPLE, CARNATION ENJOYED 10.3% OF THE
SALT LAKE CITY MARKET, AND ALTHOUGH ITS VOLUME OF PIES SOLD IN THAT
MARKET INCREASED SUBSTANTIALLY IN THE NEXT YEAR, ITS PERCENTAGE OF THE
MARKET TEMPORARILY SLIPPED TO 8.6%.  HOWEVER, 1960 WAS A TURNAROUND
YEAR FOR CARNATION IN THE SALT LAKE CITY MARKET; IT MORE THAN DOUBLED
ITS VOLUME OF SALES OVER THE PRECEDING YEAR AND THEREBY GAINED 12.1% OF
THE MARKET.  AND WHILE THE PRICE STRUCTURE IN THE MARKET DETERIORATED
RAPIDLY IN 1961 CARNATION'S POSITION REMAINED IMPORTANT. 

WE NEED NOT DWELL LONG UPON THE CASE AGAINST CARNATION, WHICH IN SOME
RESPECTS IS SIMILAR TO THAT AGAINST CONTINENTAL AND IN OTHERS MORE
NEARLY RESEMBLES THE CASE AGAINST PET.  AFTER CARNATION'S TEMPORARY
SETBACK IN 1959 IT INSTITUTED A NEW PRICING POLICY TO REGAIN BUSINESS
IN THE SALT LAKE CITY MARKET.  THE NEW POLICY INVOLVED A SLASH IN PRICE
OF 60 CENTS PER DOZEN PIES, WHICH BROUGHT CARNATION'S PRICE TO A LEVEL
ADMITTEDLY WELL BELOW ITS COSTS, AND WELL BELOW THE OTHER PRICES
PREVAILING IN THE MARKET.  THE IMPACT OF THE MOVE WAS FELT IMMEDIATELY,
AND THE TWO OTHER MAJOR SELLERS IN THE MARKET REDUCED THEIR PRICES. 
CARNATION'S BANNER YEAR, 1960, IN THE END INVOLVED EIGHT MONTHS DURING
WHICH THE PRICES IN SALT LAKE CITY WERE LOWER THAN PRICES CHARGED IN
OTHER MARKETS.  THE TREND CONTINUED DURING THE EIGHT MONTHS IN 1961
THAT PRECEDED THE FILING OF THE COMPLAINT IN THIS CASE.  IN EACH OF
THOSE MONTHS THE SALT LAKE CITY PRICES CHARGED BY CARNATION WERE WELL
BELOW PRICES CHARGED IN OTHER MARKETS, AND IN ALL BUT AUGUST 1961 THE
SALT LAKE CITY DELIVERED PRICE WAS 20 CENTS TO 50 CENTS LOWER THAN THE
PRICES CHARGED IN DISTANT SAN FRANCISCO.  THE COURT OF APPEALS HELD
THAT ONLY THE EARLY 1960 PRICES COULD BE FOUND TO HAVE BEEN BELOW
COST.  THAT HOLDING, HOWEVER, SIMPLY OVERLOOKS EVIDENCE FROM WHICH THE
JURY COULD HAVE CONCLUDED THAT THROUGHOUT 1961 CARNATION MAINTAINED A
BELOW-COST PRICE STRUCTURE AND THAT CARNATION'S DISCRIMINATORY PRICING,
NO LESS THAN THAT OF PET AND CONTINENTAL, HAD AN IMPORTANT EFFECT ON
THE SALT LAKE CITY MARKET.  WE CANNOT SAY THAT THE EVIDENCE PRECLUDED
THE JURY FROM FINDING IT REASONABLY POSSIBLE THAT CARNATION'S CONDUCT
WOULD INJURE COMPETITION. 

                         IV. 

INJURE OR LESSEN COMPETITION BY ELIMINATING COMPETITORS, DISCOURAGING
ENTRY INTO THE MARKET OR ENHANCING THE MARKET SHARES OF THE DOMINANT
SELLERS.  BUT CONGRESS HAS ESTABLISHED SOME GROUND RULES FOR THE GAME. 
SELLERS MAY NOT SELL LIKE GOODS TO DIFFERENT PURCHASERS AT DIFFERENT
PRICES IF THE RESULT MAY BE TO INJURE COMPETITION IN EITHER THE
SELLERS' OR THE BUYERS' MARKET UNLESS SUCH DISCRIMINATIONS ARE
JUSTIFIED AS PERMITTED BY THE ACT.  THIS CASE CONCERNS THE SELLERS'
MARKET.  IN THIS CONTEXT, THE COURT OF APPEALS PLACED HEAVY EMPHASIS ON
THE FACT THAT UTAH PIE CONSTANTLY INCREASED ITS SALES VOLUME AND
CONTINUED TO MAKE A PROFIT.  BUT WE DISAGREE WITH ITS APPARENT VIEW
THAT THERE IS NO REASONABLY POSSIBLE INJURY TO COMPETITION AS LONG AS
THE VOLUME OF SALES IN A PARTICULAR MARKET IS EXPANDING AND AT LEAST
SOME OF THE COMPETITORS IN THE MARKET CONTINUE TO OPERATE AT A PROFIT. 
NOR DO WE THINK THAT THE ACT ONLY COMES INTO PLAY TO REGULATE THE
CONDUCT OF PRICE DISCRIMINATORS WHEN THEIR DISCRIMINATORY PRICES
CONSISTENTLY UNDERCUT OTHER COMPETITORS.  IT IS TRUE THAT MANY OF THE
PRIMARY LINE CASES THAT HAVE REACHED THE COURTS HAVE INVOLVED BLATANT
PREDATORY PRICE DISCRIMINATIONS EMPLOYED WITH THE HOPE OF IMMEDIATE
DESTRUCTION OF A PARTICULAR COMPETITOR.  ON THE QUESTION OF INJURY TO
COMPETITION SUCH CASES PRESENT COURTS WITH NO DIFFICULTY, FOR SUCH
PRICING IS CLEARLY WITHIN THE HEART OF THE PROSCRIPTION OF THE ACT. 
COURTS AND COMMENTATORS ALIKE HAVE NOTED THAT THE EXISTENCE OF
PREDATORY INTENT MIGHT BEAR ON THE LIKELIHOOD OF INJURY TO
COMPETITION.  (FN13)  IN THIS CASE THERE WAS SOME EVIDENCE OF PREDATORY
INTENT WITH RESPECT TO EACH OF THESE RESPONDENTS.  (FN14)  THERE WAS
ALSO OTHER EVIDENCE UPON WHICH THE JURY COULD RATIONALLY FIND THE
REQUISITE INJURY TO COMPETITION.  THE FROZEN PIE MARKET IN SALT LAKE
CITY WAS HIGHLY COMPETITIVE.  AT TIMES UTAH PIE WAS A LEADER IN MOVING
THE GENERAL LEVEL OF PRICES DOWN, AND AT OTHER TIMES EACH OF THE
RESPONDENTS ALSO BORE RESPONSIBILITY FOR THE DOWNWARD PRESSURE ON THE
PRICE STRUCTURE.  WE BELIEVE THAT THE ACT REACHES PRICE DISCRIMINATION
THAT ERODES COMPETITION AS MUCH AS IT DOES PRICE DISCRIMINATION THAT IS
INTENDED TO HAVE IMMEDIATE DESTRUCTIVE IMPACT.  IN THIS CASE, THE
EVIDENCE SHOWS A DRASTICALLY DECLINING PRICE STRUCTURE WHICH THE JURY
COULD RATIONALLY ATTRIBUTE TO CONTINUED OR SPORADIC PRICE
DISCRIMINATION.  THE JURY WAS ENTITLED TO CONCLUDE THAT "THE EFFECT OF
SUCH DISCRIMINATION," BY EACH OF THESE RESPONDENTS, "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION  ...  OR TO INJURE, DESTROY, OR
PREVENT COMPETITION WITH ANY PERSON WHO EITHER GRANTS OR KNOWINGLY
RECEIVES THE BENEFIT OF SUCH DISCRIMINATION  ...  ."  THE STATUTORY
TEST IS ONE THAT NECESSARILY LOOKS FORWARD ON THE BASIS OF PROVEN
CONDUCT IN THE PAST.  PROPER APPLICATION OF THAT STANDARD HERE REQUIRES
REVERSAL OF THE JUDGMENT OF THE COURT OF APPEALS.  (FN15) 

SINCE THE COURT OF APPEALS HELD THAT PETITIONER HAD FAILED TO MAKE A
PRIMA FACIE CASE AGAINST EACH OF THE RESPONDENTS, IT EXPRESSLY DECLINED
TO PASS ON OTHER GROUNDS FOR REVERSAL PRESENTED BY THE RESPONDENTS. 
349 F.2D 122, 126.  WITHOUT INTIMATING ANY VIEWS ON THE OTHER GROUNDS
PRESENTED TO THE COURT OF APPEALS, WE REVERSE ITS JUDGMENT AND REMAND
THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS.   IT IS SO ORDERED. 

FN1  15 U.S.C. SEC 15 PROVIDES THAT: 

"ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY
REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR IN
ANY DISTRICT COURT OF THE UNITED STATES IN THE DISTRICT IN WHICH THE
DEFENDANT RESIDES OR IS FOUND OR HAS AN AGENT, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY, AND SHALL RECOVER THREEFOLD THE DAMAGES BY HIM
SUSTAINED, AND THE COST OF SUIT, INCLUDING A REASONABLE ATTORNEY'S
FEE." 

15 U.S.C. SEC 26 PROVIDES INJUNCTIVE RELIEF FOR PRIVATE PARTIES FROM
VIOLATION OF THE ANTITRUST LAWS. 

FN2  THE PORTION OF SEC. 2(A) RELEVANT TO THE ISSUE BEFORE THE COURT
PROVIDES: 

"THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY, WHERE EITHER OR ANY OF THE PURCHASES INVOLVED IN SUCH
DISCRIMINATION ARE IN COMMERCE  ...  WHERE 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  ...  ." 

FN3  RESPONDENT CONTINENTAL BY COUNTERCLAIM CHARGED PETITIONER WITH
VIOLATION OF SEC. 2(A) IN RESPECT TO CERTAIN SALES.  ON THIS ISSUE THE
JURY FOUND FOR CONTINENTAL, AND ALTHOUGH PETITIONER FAILED TO MOVE FOR
A DIRECTED VERDICT ON THE COUNTERCLAIM BEFORE ITS SUBMISSION TO THE
JURY, THE TRIAL JUDGE GRANTED PETITIONER'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT.  THE COURT OF APPEALS REVERSED THE
JUDGMENT NOTWITHSTANDING THE VERDICT ON THE COUNTERCLAIM, AND REMANDED
THE ISSUE FOR A NEW TRIAL.  NO QUESTION CONCERNING THE COUNTERCLAIM IS
BEFORE THE COURT. 

FN4  THE ORDER ALLOWING CERTIORARI REQUESTED COUNSEL TO BRIEF AND
DISCUSS AT ORAL ARGUMENT, IN ADDITION TO THE QUESTIONS PRESENTED BY THE
PETITION, THE FOLLOWING QUESTIONS: 

"1.  WHETHER, IF THIS COURT AFFIRMS THE JUDGMENT AND ORDER OF THE
COURT OF APPEALS DIRECTING THE DISTRICT COURT TO ENTER JUDGMENT FOR
RESPONDENTS, PETITIONER CAN THEN MAKE A MOTION FOR NEW TRIAL UNDER RULE
50(C)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE WITHIN 10 DAYS OF THE
DISTRICT COURT'S ENTRY OF JUDGMENT FOR RESPONDENTS? 

"2.  WHETHER, IF UNDER THE ORDER OF THE COURT OF APPEALS, PETITIONER
CANNOT MAKE A MOTION FOR NEW TRIAL UNDER RULE 50(C)(2) WITHIN 10 DAYS
OF THE DISTRICT COURT'S ENTRY OF JUDGMENT AGAINST HIM, THE ORDER OF THE
COURT OF APPEALS DIRECTING THE DISTRICT COURT TO ENTER JUDGMENT FOR
RESPONDENTS IS COMPATIBLE WITH RULE 50(B) AS INTERPRETED BY THIS COURT
IN CONE V. WEST VIRGINIA PULP & PAPER CO., 330 U.S. 212; GLOBE LIQUOR
CO. V. SAN ROMAN, 332 U.S. 571; AND WEADE V. DICHMANN, WRIGHT & PUGH,
337 U.S. 801?    "3.  WHETHER RULE 50(D) OF THE FEDERAL RULES OF CIVIL
PROCEDURE PROVIDES THE COURT OF APPEALS WITH ANY AUTHORITY TO DIRECT
THE ENTRY OF JUDGMENT FOR RESPONDENTS?" 

IN THE LIGHT OF OUR DISPOSITION OF THIS CASE, WE NEED NOT REACH THESE
QUESTIONS. 

FN5  BEGINNING IN FEBRUARY 1960 PETITIONER SOLD FROZEN PIES TO A
SPOKANE, WASHINGTON, BUYER UNDER THE "SONNY BOY" LABEL.  FN6  THE
PRICES DISCUSSED HEREIN REFER TO THOSE CHARGED FOR APPLE PIES.  THE
APPLE FLAVOR HAS BEEN USED AS THE STANDARD THROUGHOUT THIS CASE,
WITHOUT OBJECTION FROM THE PARTIES, AND WE ADHERE TO THE PRACTICE
HERE. 

FN7  THE SALT LAKE CITY SALES VOLUMES AND MARKET SHARES OF THE
PARTIES TO THIS SUIT AS WELL AS OF OTHER SELLERS DURING THE PERIOD AT
ISSUE WERE AS FOLLOWS:  (TABLE OMITTED). 

FN8  THE PET-SAFEWAY CONTRACT, ENTERED INTO ON JANUARY 1, 1960,
OBLIGATED THE SAFEWAY ORGANIZATION TO PURCHASE A MINIMUM OF 1,000,000
CASES (SIX PIES PER CASE) FROM PET DURING THE YEAR.  THE CONTRACT WAS
ORALLY RENEWED FOR ONE YEAR AND THEREAFTER TO THE TIME OF THE TRIAL THE
PRODUCTION OF "BEL-AIR" PIES BY PET FOR SAFEWAY WAS CONTINUED WITHOUT A
FORMAL CONTRACT.  ALL OF THE VOLUME OF THE SAFEWAY PURCHASES UNDER THE
CONTRACT OF COURSE DID NOT FIND ITS WAY TO THE SALT LAKE CITY MARKET. 

FN9  SECTION 2(B) OF THE ROBINSON-PATMAN ACT ASSIGNS THE BURDEN. 
"UPON PROOF BEING MADE, AT ANY HEARING ON A COMPLAINT UNDER THIS
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  ...  ."  49 STAT. 1526, 15 U.S.C. SEC.
13(B).  SEE F.T.C. V. MORTON SALT CO., 334 U.S. 37, 44-45; UNITED
STATES V. BORDEN CO., 370 U.S. 460, 467. 

FN10  THE ONLY EVIDENCE CITED BY THE COURT OF APPEALS TO JUSTIFY THE
REMAINING 76% OF PET'S SALES TO SAFEWAY WAS SAFEWAY'S ESTABLISHED
PRACTICE OF REQUIRING ITS SELLERS TO COST JUSTIFY SALES THAT OTHERWISE
WOULD BE ILLEGALLY DISCRIMINATORY.  THIS PRACTICE WAS INCORPORATED IN
THE PET-SAFEWAY CONTRACT.  WE ARE UNPREPARED TO HOLD THAT A CONTRACTUAL
OBLIGATION TO COST JUSTIFY PRICE DIFFERENTIALS IS LEGALLY DISPOSITIVE
PROOF THAT SUCH DIFFERENTIALS ARE IN FACT SO JUSTIFIED.  PET ADMITTED
THAT ITS COST-JUSTIFICATION FIGURES WERE DRAWN FROM PAST PERFORMANCE,
SO EVEN CREDITING THE DATA ACCOMPANYING THE 1960 CONTRACT REGARDING
COST DIFFERENCES, PET'S ADDITIONAL EVIDENCE WOULD BRING UNDER THE
JUSTIFICATION UMBRELLA ONLY THE 1959 SALES.  THUS, AT THE LEAST, THE
JURY WAS FREE TO CONSIDER THE 1960 SAFEWAY SALES AS INADEQUATELY COST
JUSTIFIED.  THOSE SALES ACCOUNTED FOR 12.3% OF THE ENTIRE SALT LAKE
CITY MARKET IN THAT YEAR.  IN THE CONTEXT OF THIS CASE, THE SALES TO
SAFEWAY ARE PARTICULARLY RELEVANT SINCE THERE WAS EVIDENCE THAT PRIVATE
LABEL SALES INFLUENCED THE GENERAL MARKET, IN THIS CASE DEPRESSING
OVERALL MARKET PRICES. 

FN11  THE JURY WAS IN FACT CHARGED THAT IT COULD FIND FOR PETITIONER
IF FROM RESPONDENTS' CONDUCT "THERE IS REASONABLY LIKELY TO BE A
SUBSTANTIAL INJURY TO COMPETITION AMONG SELLERS OF FROZEN PIES IN THE
UTAH AREA."  R., AT 1355. 

FN12  THE DANGERS OF PREDATORY PRICE DISCRIMINATION WERE RECOGNIZED
IN MOORE V. MEAD'S FINE BREAD CO., 348 U.S. 115, WHERE SUCH PRICING WAS
HELD VIOLATIVE OF SEC. 2(A).  SUBSEQUENTLY, THE COURT NOTED THAT "THE
DECISIONS OF THE FEDERAL COURTS IN PRIMARY-LINE-COMPETITION CASES  ...
CONSISTENTLY EMPHASIZE THE UNREASONABLY LOW PRICES AND THE PREDATORY
INTENT OF THE DEFENDANTS."  F.T.C. V. ANHEUSER-BUSCH, INC., 363 U.S.
536, 548.  SEE ALSO BALIAN ICE CREAM CO. V. ARDEN FARMS CO., 231 F.2D
356, 369; MARYLAND BAKING CO. V. F.T.C., 243 F.2D 716; ATLAS BUILDING
PROD.  CO. V. DIAMOND BLOCK & GRAVEL CO., 269 F.2D 950; ANHEUSER-BUSCH,
INC. V. F.T.C., 289 F.2D 835.  IN THE LATTER CASE THE COURT WENT SO FAR
AS TO SUGGEST THAT: 

"IF  ...  THE PROJECTION TO ASCERTAIN THE FUTURE EFFECT OF PRICE
DISCRIMINATION IS BASED UPON PREDATORINESS OR BUCCANEERING, IT CAN
REASONABLY BE FORECAST THAT AN ADVERSE EFFECT ON COMPETITION MAY
OCCUR.  IN THAT EVENT, THE DISCRIMINATIONS IN THEIR INCIPIENCY ARE SUCH
THAT THEY MAY HAVE THE PRESCRIBED EFFECT TO ESTABLISH A VIOLATION OF
SEC. 2(A).  IF ONE ENGAGES IN THE LATTER TYPE OF PRICING ACTIVITY, A
REASONABLE PROBABILITY MAY BE INFERRED THAT ITS WILLFUL MISCONDUCT MAY
SUBSTANTIALLY LESSEN, INJURE, DESTROY OR PREVENT COMPETITION."  289
F.2D, AT 843. 

CHIEF JUSTICE HUGHES NOTED IN A RELATED ANTITRUST CONTEXT THAT
"KNOWLEDGE OF ACTUAL INTENT IS AN AID IN THE INTERPRETATION OF FACTS
AND PREDICTION OF CONSEQUENCES."  APPALACHIAN COALS, INC. V. UNITED
STATES, 288 U.S. 344, 372, AND WE DO NOT THINK IT UNREASONABLE FOR
COURTS TO FOLLOW THAT LEAD.  ALTHOUGH THE EVIDENCE IN THIS REGARD
AGAINST PET SEEMS OBVIOUS, A JURY WOULD BE FREE TO ASCERTAIN A SELLER'S
INTENT FROM SURROUNDING ECONOMIC CIRCUMSTANCES, WHICH WOULD INCLUDE
PERSISTENT UNPROFITABLE SALES BELOW COST AND DRASTIC PRICE CUTS
THEMSELVES DISCRIMINATORY.  SEE ROWE, PRICE DISCRIMINATION UNDER THE
ROBINSON-PATMAN ACT 141-150 (1962), COMMENTING ON THE COURT'S STATEMENT
IN F.T.C. V. ANHEUSER-BUSCH, INC., SUPRA, THAT "A PRICE REDUCTION BELOW
COST TENDS TO ESTABLISH PREDATORY INTENT."  363 U.S., AT 552.  SEE ALSO
BEN HUR COAL CO. V. WELLS, 242 F.2D 481, 486, AND BALIAN ICE CREAM CO.
V. ARDEN FARMS CO., SUPRA, AT 368, IN WHICH THE COURTS RECOGNIZED THE
INFERENTIAL VALUE OF SALES BELOW COST ON THE ISSUE OF INTENT. 

FN13  SEE N. 12, SUPRA. 

FN14  IT MIGHT BE ARGUED THAT THE RESPONDENTS' CONDUCT DISPLAYED ONLY
FIERCE COMPETITIVE INSTINCTS.  ACTUAL INTENT TO INJURE ANOTHER
COMPETITOR DOES NOT, HOWEVER, FALL INTO THAT CATEGORY, AND NEITHER,
WHEN VIEWED IN THE CONTEXT OF THE ROBINSON-PATMAN ACT, DO PERSISTENT
SALES BELOW COST AND RADICAL PRICE CUTS THEMSELVES DISCRIMINATORY.  NOR
DOES THE FACT THAT A LOCAL COMPETITOR HAS A MAJOR SHARE OF THE MARKET
MAKE HIM FAIR GAME FOR DISCRIMINATORY PRICE CUTTING FREE OF ROBINSON
PATMAN ACT PROSCRIPTIONS.  "THE CLAYTON ACT PROSCRIPTION AS TO
DISCRIMINATION IN PRICE IS NOT NULLIFIED MERELY BECAUSE OF A SHOWING
THAT THE EXISTING COMPETITION IN A PARTICULAR MARKET HAD A MAJOR SHARE
OF THE SALES OF THE PRODUCT INVOLVED."  MARYLAND BAKING CO., 52 F.T.C.
1679, 1689, AFF'D, 243 F.2D 716.  IN THAT CASE THE LOCAL COMPETITOR'S
SHARE OF THE MARKET WHEN PRICE DISCRIMINATION BEGAN WAS 91.3%, YET THE
FEDERAL TRADE COMMISSION WAS NOT IMPRESSED BY THE ARGUMENT THAT THE
EFFECT OF THE DISCRIMINATION HAD BEEN TO TERMINATE A MONOPOLY AND TO
CREATE A COMPETITIVE MARKET. 

FN15  EACH RESPONDENT ARGUES HERE THAT PRIOR PRICE DISCRIMINATION
CASES IN THE COURTS AND BEFORE THE FEDERAL TRADE COMMISSION, IN WHICH
NO PRIMARY LINE INJURY TO COMPETITION WAS FOUND, ESTABLISH A STANDARD
WHICH COMPELS AFFIRMANCE OF THE COURT OF APPEALS' HOLDING.  BUT THE
CASES UPON WHICH THE RESPONDENTS RELY ARE READILY DISTINGUISHABLE.  IN
ANHEUSER-BUSCH, INC. V. F.T.C., 289 F.2D 835, 839, THERE WAS NO GENERAL
DECLINE IN PRICE STRUCTURE ATTRIBUTABLE TO THE DEFENDANT'S PRICE
DISCRIMINATIONS, NOR WAS THERE ANY EVIDENCE THAT THE PRICE
DISCRIMINATIONS WERE "A SINGLE LETHAL WEAPON AIMED AT A VICTIM FOR A
PREDATORY PURPOSE."  ID., AT 842.  IN BORDEN CO. V. F.T.C., 339 F.2D
953, THE COURT REVERSED THE COMMISSION'S DECISION ON PRICE
DISCRIMINATION IN ONE MARKET FOR WANT OF SUFFICIENT INTERSTATE
CONNECTION, AND THE COMMISSION'S CHARGE REGARDING THE OTHER MARKET
FAILED TO SHOW ANY LASTING IMPACT UPON PRICES CAUSED BY THE SINGLE,
ISOLATED INCIDENT OF PRICE DISCRIMINATION PROVED.  ABSENCE OF PROOF
THAT THE ALLEGED INJURY WAS DUE TO CHALLENGED PRICE DISCRIMINATIONS WAS
DETERMINATIVE IN INTERNATIONAL MILLING CO., CCH TRADE REG. REP.
TRANSFER BINDER, 1963-1965, PARAS 16,494, 16,648.  IN UARCO, INC., CCH
TRADE REG. REP. TRANSFER BINDER, 1963-1965, PARA 16,807, THERE WAS NO
EVIDENCE FROM WHICH PREDATORY INTENT COULD BE INFERRED AND NO EVIDENCE
OF A LONG-TERM MARKET PRICE DECLINE.  SIMILAR FAILURE OF PROOF AND
ABSENCE OF SALES BELOW COST WERE EVIDENT IN QUAKER OATS CO., CCH TRADE
REG. REP. TRANSFER BINDER, 1963-1965, PARA 17,134.  DEAN MILK CO., 3
TRADE REG. REP. PARA 17,357, IS NOT TO THE CONTRARY.  THERE IN THE ONE
MARKET WHERE THE COMMISSION FOUND NO PRIMARY LINE INJURY THERE WAS NO
EVIDENCE OF A GENERALLY DECLINING PRICE STRUCTURE. 

THE CHIEF JUSTICE TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT, AGREEING SUBSTANTIALLY WITH THE
REASONING OF THE COURT OF APPEALS AS EXPRESSED IN THE THOROUGH AND
CONSCIENTIOUS OPINION OF JUDGE PHILLIPS. 

THERE IS ONLY ONE ISSUE IN THIS CASE IN ITS PRESENT POSTURE:  WHETHER
THE RESPONDENTS ENGAGED IN PRICE DISCRIMINATION "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  ...  ."  (FN1)  PHRASED
MORE SIMPLY, DID THE RESPONDENTS' ACTIONS HAVE THE ANTICOMPETITIVE
EFFECT REQUIRED BY THE STATUTE AS AN ELEMENT OF A CAUSE OF ACTION? 

THE COURT'S OWN DESCRIPTION OF THE SALT LAKE CITY FROZEN PIE MARKET
FROM 1958 THROUGH 1961, SHOWS THAT THE ANSWER TO THAT QUESTION MUST BE
NO. (FN2)  IN 1958 UTAH PIE HAD A QUASI-MONOPOLISTIC 66.5% OF THE
MARKET.  IN 1961 - AFTER THE ALLEGED PREDATIONS OF THE RESPONDENTS -
UTAH PIE STILL HAD A COMMANDING 45.3%, PET HAD 29.4%, AND THE REMAINDER
OF THE MARKET WAS DIVIDED ALMOST EQUALLY BETWEEN CONTINENTAL,
CARNATION, AND OTHER, SMALL LOCAL BAKERS.  UNLESS WE DISREGARD THE
LESSONS SO LABORIOUSLY LEARNED IN SCORES OF SHERMAN AND CLAYTON ACT
CASES, THE 1961 SITUATION HAS TO BE CONSIDERED MORE COMPETITIVE THAN
THAT OF 1958.  THUS, IF WE ASSUME THAT THE PRICE DISCRIMINATION PROVEN
AGAINST THE RESPONDENTS HAD ANY EFFECT ON COMPETITION, THAT EFFECT MUST
HAVE BEEN BENEFICENT. 

THAT THE COURT HAS FALLEN INTO THE ERROR OF READING THE ROBINSON
PATMAN ACT AS PROTECTING COMPETITORS, INSTEAD OF COMPETITION, CAN BE
SEEN FROM ITS UNSUCCESSFUL ATTEMPT TO DISTINGUISH CASES RELIED UPON BY
THE RESPONDENTS.  (FN3)  THOSE CASES ARE SAID TO BE INAPPOSITE BECAUSE
THEY INVOLVED "NO GENERAL DECLINE IN PRICE STRUCTURE," AND NO "LASTING
IMPACT UPON PRICES."  BUT LOWER PRICES ARE THE HALLMARK OF INTENSIFIED
COMPETITION. 

THE COURT OF APPEALS SQUARELY IDENTIFIED THE FALLACY WHICH THE COURT
TODAY EMBRACES: 

"  ...  A CONTENTION THAT UTAH PIE WAS ENTITLED TO HOLD THE
EXTRAORDINARY MARKET SHARE PERCENTAGE OF 66.5, ATTAINED IN 1958, FALLS
OF ITS OWN DEAD WEIGHT.  TO PROVE SUCH A CONTENTION WOULD BE TO HOLD
THAT UTAH PIE WAS ENTITLED TO MAINTAIN A POSITION WHICH APPROACHED, IF
IT DID NOT IN FACT AMOUNT TO A MONOPOLY, AND COULD NOT EXIST IN THE
FACE OF PROPER AND HEALTHY COMPETITION."  349 F.2D 122, 155. 

I CANNOT HOLD THAT UTAH PIE'S MONOPOLISTIC POSITION WAS PROTECTED BY
THE FEDERAL ANTITRUST LAWS FROM EFFECTIVE PRICE COMPETITION, AND I
THEREFORE RESPECTFULLY DISSENT. 

FN1  SECTION 2(A) OF THE CLAYTON ACT AS AMENDED BY THE ROBINSON
PATMAN ACT, 15 U.S.C. SEC. 13(A). 

FN2  SEE ANTE, P. 691, N. 7. 

FN3  SEE ANTE, P. 703, N. 15. 
..END :









CLEWIS V. TEXAS 386 U.S. 707 


NO. 648.  ARGUED MARCH 15, 1967.  - DECIDED APRIL 24, 1967.  - 415
S.W.2D 654, REVERSED. 


PETITIONER WAS CONVICTED OF MURDER AFTER A TRIAL IN WHICH HIS
CONFESSION WAS INTRODUCED IN EVIDENCE OVER HIS OBJECTION THAT IT WAS
NOT VOLUNTARY.  THE CONVICTION WAS AFFIRMED ON APPEAL.  HELD: ON THE
"TOTALITY OF THE CIRCUMSTANCES" IN THIS CASE THE CONFESSION CANNOT BE
HELD TO HAVE BEEN VOLUNTARY, AND THE USE AS EVIDENCE AGAINST PETITIONER
DEPRIVED HIM OF DUE PROCESS OF LAW.  CF. DAVIS V. NORTH CAROLINA, 384
U.S. 737 (1968).  PP. 708-712. 

CLEWIS V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, MARVIN PETERSON CLEWIS, STANDS CONVICTED OF THE MURDER,
BY STRANGULATION, OF HIS WIFE, DOROTHY MAE CLEWIS.  THE JURY WHICH
FOUND HIM GUILTY IMPOSED A SENTENCE OF 25 YEARS' IMPRISONMENT.  DURING
THE COURSE OF HIS TRIAL, PETITIONER MOVED TO EXCLUDE FROM EVIDENCE
THREE STATEMENTS HE HAD MADE WHILE IN POLICE CUSTODY.  PETITIONER
CLAIMED THAT THESE STATEMENTS HAD NOT BEEN VOLUNTARILY MADE, AND THAT
THEIR USE AGAINST HIM AT HIS TRIAL WOULD DENY HIM DUE PROCESS OF LAW,
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION.  (FN1)
EVIDENCE WAS TAKEN BY THE COURT OUTSIDE OF THE JURY'S PRESENCE, AND THE
MOTION WAS OVERRULED.  (FN2)  PETITIONER'S THIRD, AND LAST, WRITTEN
CONFESSION WAS THEN INTRODUCED IN EVIDENCE OVER OBJECTION.  THE
QUESTION OF ITS VOLUNTARINESS WAS PRESENTED TO THE JURY, WHICH, BY ITS
GENERAL VERDICT, RESOLVED THE QUESTION AGAINST PETITIONER. 
PETITIONER'S CONSTITUTIONAL OBJECTION TO THE USE OF HIS STATEMENT WAS
RENEWED IN HIS MOTIONS FOR INSTRUCTED VERDICT AND FOR A NEW TRIAL, BOTH
OF WHICH THE TRIAL JUDGE OVERRULED.  ON APPEAL, THE COURT OF CRIMINAL
APPEALS OF TEXAS AFFIRMED THE JUDGMENT OF CONVICTION.  THAT COURT
REVIEWED THE RECORD AND CONCLUDED THAT IT COULD NOT HOLD "THAT THERE
ARE ANY UNDISPUTED FACTS WHICH RENDERED THE CONFESSION INADMISSIBLE AS
A MATTER OF LAW."  WE DISAGREE, AND WE REVERSE. 

THE QUESTION FOR DETERMINATION IS WHETHER, CONSIDERING THE "TOTALITY
OF THE CIRCUMSTANCES," (FN3) MARVIN CLEWIS' STATEMENTS WERE NOT
VOLUNTARY AND THE THIRD STATEMENT SHOULD HAVE BEEN EXCLUDED.  WE
APPROACH THIS QUESTION FROM AN INDEPENDENT EXAMINATION OF THE WHOLE
RECORD, OUR ESTABLISHED PRACTICE IN THESE CASES.  (FN4)  OUR RECENT
OBSERVATION IN DAVIS V. NORTH CAROLINA, 384 U.S. 737, 741 (1966),
APPLIES EQUALLY HERE: "AS IS ALMOST INVARIABLY SO IN CASES INVOLVING
CONFESSIONS OBTAINED THROUGH UNOBSERVED POLICE INTERROGATION, THERE IS
A CONFLICT IN THE TESTIMONY AS TO THE EVENTS SURROUNDING THE
INTERROGATIONS."  FOR THE PURPOSE OF DECIDING THIS CASE, WE NEED NOT GO
BEYOND THE STATE'S VERSION OF THE FACTS.  ACCORDINGLY, WE DO NOT
CONSIDER PETITIONER'S CLAIM THAT HE WAS SUBJECTED TO PHYSICAL
ASSAULTS. 

THE TRIAL OF THIS CASE WAS PRIOR TO THE DATE OF DECISION OF MIRANDA
V. ARIZONA, 384 U.S. 436 (1966), THE REQUIREMENTS OF WHICH, THEREFORE,
ARE NOT DIRECTLY APPLICABLE, JOHNSON V. NEW JERSEY, 384 U.S. 719
(1966), ALTHOUGH RELEVANT ON THE ISSUE OF VOLUNTARINESS, DAVIS V. NORTH
CAROLINA, 384 U.S. 737 (1966). 

PETITIONER WAS TAKEN INTO CUSTODY AT ABOUT 6 A.M. ON SUNDAY, JULY 8,
1962, AND FIRST GAVE A STATEMENT TO THE POLICE LATE IN THE AFTERNOON OF
MONDAY, JULY 9.  THEREAFTER, HE WAS TAKEN BEFORE A MAGISTRATE.  ON THE
VIEW MOST FAVORABLE TO THE STATE, PETITIONER HAD BEEN HELD SOME 38
HOURS BEFORE BEING TAKEN BEFORE A MAGISTRATE TO BE CHARGED, HAD HAD
LITTLE SLEEP AND VERY LITTLE FOOD, AND APPEARED TO THE POLICE TO BE
SICK.  HE HAD BEEN VISITED BRIEFLY ONCE OR TWICE, BUT HAD HAD NO
CONTACT WITH A LAWYER.  HE HAD CONSISTENTLY DENIED ALL KNOWLEDGE OF HIS
WIFE'S DEATH UNTIL THE POINT AT WHICH HE AGREED TO GIVE A STATEMENT,
AND THEN HAD CONFESSED TO KILLING HER IN A WAY (BY SHOOTING) THAT - IT
LATER DEVELOPED - WAS INCONSISTENT WITH THE FACTS.  (FN5) 

PETITIONER NEXT GAVE A STATEMENT ON THURSDAY, JULY 12.  THE EVENTS
LEADING UP TO THE SECOND "CONFESSION" MAY BE SUMMARIZED:  HAVING BEEN
FORMALLY CHARGED, BUT UNREPRESENTED AND UNADVISED BY COUNSEL,
PETITIONER WAS INTERROGATED FAIRLY FREQUENTLY AND BY SEVERAL DIFFERENT
OFFICERS FROM MONDAY EVENING TO THURSDAY AFTERNOON.  (FN6)  DURING THIS
PERIOD HE WAS DRIVEN ON A ROUND TRIP OF ABOUT 600 MILES, WAS
ADMINISTERED SEVERAL POLYGRAPH TESTS, WAS DETAINED IN AT LEAST THREE
DIFFERENT POLICE BUILDINGS, AND APPARENTLY HAD VERY LITTLE TO EAT AND
LITTLE CONTACT EXCEPT WITH POLICEMEN.  DESPITE ALL THIS, AND IN THE
FACE OF HIS EARLIER "CONFESSION," HE STEADFASTLY DENIED ANY GUILT - OR
EVEN KNOWLEDGE - WITH RESPECT TO HIS WIFE'S DEATH UNTIL HE FINALLY
PRODUCED THE SECOND "CONFESSION." 

ON FRIDAY, JULY 13, CLEWIS WAS DELIVERED TO THE CUSTODY OF THE MIDLAND
COUNTY SHERIFF.  HE REMAINED IN THE COUNTY JAIL FROM THEN UNTIL
TUESDAY, JULY 17.  DURING THIS TIME HE WAS APPARENTLY NOT INTERROGATED,
ABUSED, OR DENIED ADEQUATE FOOD AND SLEEP.  HE DID NOT, HOWEVER,
CONSULT WITH A LAWYER. 

AT ABOUT 9:30 A.M., TUESDAY, JULY 17, PETITIONER WAS AGAIN
INTERROGATED, THIS TIME BY TWO DEPUTY SHERIFFS.  HE AGAIN BEGAN BY
DENYING ANY GUILT IN CONNECTION WITH HIS WIFE'S DEATH.  NO LAWYER WAS
PRESENT, NOR HAD PETITIONER BEEN ADVISED OF HIS RIGHT TO HAVE ONE
APPOINTED.  THE MIDLAND COUNTY DISTRICT ATTORNEY ARRIVED, AND SHORTLY
THEREAFTER PETITIONER CONFESSED FOR THE THIRD TIME.  THERE IS NO
TESTIMONY THAT ANY WARNING OF THE RIGHT TO REMAIN SILENT WAS GIVEN
PRIOR TO THIS ORAL CONFESSION.   ABOUT 10:45 A.M. PREPARATION OF A
WRITTEN STATEMENT WAS BEGUN, FOLLOWING A FORMAL WARNING OF THE RIGHT
NOT TO MAKE IT.  SHORTLY THEREAFTER, CLEWIS SIGNED THE STATEMENT WHICH
WAS INTRODUCED AGAINST HIM AT TRIAL. 

ON THIS RECORD, WE CANNOT HOLD THAT PETITIONER'S THIRD STATEMENT WAS
VOLUNTARY.  IT PLAINLY CANNOT, ON THESE FACTS, BE SEPARATED FROM THE
CIRCUMSTANCES SURROUNDING THE TWO EARLIER "CONFESSIONS."  THERE IS HERE
NO BREAK IN THE STREAM OF EVENTS FROM THE TIME SUNDAY MORNING WHEN
PETITIONER WAS TAKEN TO THE POLICE STATION TO THE TIME TUESDAY MORNING
SOME NINE DAYS LATER THAT HE SIGNED THE STATEMENT IN ISSUE, SUFFICIENT
TO INSULATE THE STATEMENT FROM THE EFFECT OF ALL THAT WENT BEFORE. 
COMPARE UNITED STATES V. BAYER, 331 U.S. 532, 540 (1947) WITH RECK V.
PATE, 367 U.S. 433, 444 (1961). 

AMONG THE FACTORS WHICH REQUIRE OUR CONCLUSION THAT THE "CONFESSION"
WAS NOT VOLUNTARY ARE THE FOLLOWING: 

(1)  DURING THIS LONG PERIOD OF CUSTODY, PETITIONER WAS NEVER FULLY
ADVISED THAT HE COULD CONSULT COUNSEL AND HAVE COUNSEL APPOINTED IF
NECESSARY, THAT HE WAS ENTITLED TO REMAIN SILENT, AND THAT ANYTHING HE
SAID COULD BE USED AS EVIDENCE AGAINST HIM.  CF. DAVIS V. NORTH
CAROLINA, 384 U.S. 737 (1966); MIRANDA V. ARIZONA, 384 U.S. 436
(1966).  EVEN AFTER HE WAS ARRAIGNED, HE WAS NOT ADVISED OF HIS RIGHT
TO APPOINTED COUNSEL.  POST-ARRAIGNMENT INTERROGATION, OVER A PERIOD OF
MORE THAN A WEEK, OCCURRED WITHOUT THE PRESENCE OF COUNSEL FOR THE
ACCUSED, AND WITHOUT ANY WAIVER THEREOF. 

(2)  THE FIRST STATEMENT WAS SECURED FOLLOWING AN INITIAL TAKING-INTO
CUSTODY WHICH WAS CONCEDEDLY NOT SUPPORTED BY PROBABLE CAUSE,  (FN7)
FOLLOWED BY 38 HOURS OF INTERMITTENT INTERROGATION - DESPITE THE TEXAS
RULE THAT AN ACCUSED BE TAKEN BEFORE A MAGISTRATE "IMMEDIATELY."  TEXAS
CODE CRIM. PROC. ART. 217 (1925); NOW, SUBSTANTIALLY REVISED IN OTHER
RESPECTS, TEXAS CODE CRIM. PROC. ARTS. 14.06, 15.17 (1965).  THIS WAS
FOLLOWED BY PROLONGED, IF INTERMITTENT, INTERROGATION BY NUMEROUS
OFFICERS, IN SEVERAL BUILDINGS, PUNCTUATED BY A TRIP TO THE GRAVESITE
AND A LONG TRIP TO ANOTHER TOWN, AND ACCOMPANIED BY SEVERAL POLYGRAPH
TESTS.  THE POLICE TESTIMONY MAKES IT CLEAR THAT THE INTERROGATION WAS
NOT INTENDED MERELY TO SECURE INFORMATION, BUT WAS SPECIFICALLY
DESIGNED TO ELICIT A SIGNED STATEMENT OF "THE TRUTH" - AND THE POLICE
VIEW OF "THE TRUTH" WAS MADE CLEAR TO PETITIONER.   THE PETITIONER
REPUDIATED EACH OF THE FIRST TWO CONFESSIONS SHORTLY AFTER IT WAS MADE,
AND DENIED THE TRUTH OF THE THIRD ONE AT HIS TRIAL. 

(3)  THE RECORD INSPIRES SUBSTANTIAL CONCERN AS TO THE EXTENT TO
WHICH PETITIONER'S FACULTIES WERE IMPAIRED BY INADEQUATE SLEEP AND
FOOD, SICKNESS, AND LONG SUBJECTION TO POLICE CUSTODY WITH LITTLE OR NO
CONTACT WITH ANYONE OTHER THAN POLICE.  THIS FACTOR TAKES ON ADDITIONAL
WEIGHT IN THAT PETITIONER, A NEGRO, HAD ONLY A FIFTH-GRADE EDUCATION. 
HE HAD APPARENTLY NEVER BEEN IN TROUBLE WITH THE LAW BEFORE. 

FOR THE FOREGOING REASONS, THE JUDGMENT BELOW MUST BE, AND IS,  (FN8)
REVERSED. 

FN1  PETITIONER ALSO CLAIMED THAT HIS RIGHT TO COUNSEL HAD BEEN
VIOLATED IN THE SECURING OF THESE CONFESSIONS.  CF. MASSIAH V. UNITED
STATES, 377 U.S. 201 (1964). 

FN2  THE TRIAL JUDGE DID NOT MAKE WRITTEN FINDINGS ON THE
VOLUNTARINESS ISSUE AT THE TIME OF TRIAL.  SOME EIGHT MONTHS LATER HE
CERTIFIED THAT HE HAD CONCLUDED THAT THE (THIRD) STATEMENT WAS IN FACT
VOLUNTARY.  THIS "BELATED ENTRY AND FILING OF THE TRIAL COURT'S
FINDINGS" WAS ACCEPTED AS A SUPPLEMENT TO THE TRANSCRIPT OF RECORD BY
THE COURT OF CRIMINAL APPEALS. 

FN3  FIKES V. ALABAMA, 352 U.S. 191, 197 (1957).  SEE ALSO, E.G.,
DAVIS V. NORTH CAROLINA, 384 U.S. 737 (1966); HAYNES V. WASHINGTON, 373
U.S. 503 (1963). 

FN4  SEE DAVIS V. NORTH CAROLINA, 384 U.S. 737, 741-742 (1966). 

FN5  MOST OF THE PHYSICAL ABUSE PETITIONER LATER RELATED ALLEGEDLY
OCCURRED DURING THIS PERIOD. 

FN6  THE STATE CONTENDS THAT CLEWIS DID CONSULT WITH AN ATTORNEY ON
THURSDAY MORNING.  HE INSISTS THE CONFERENCE TOOK PLACE ON FRIDAY
MORNING.  IN ANY EVENT, THE STATE DOES NOT DISPUTE HIS TESTIMONY THAT
THE ONLY SUBJECT DISCUSSED WITH THE LAWYER WAS THE MATTER OF A FEE, AND
THAT THE LAWYER DECLINED TO REPRESENT HIM. 

FN7  THE ARRESTING OFFICER TESTIFIED THAT HE MERELY ASKED PETITIONER
TO ACCOMPANY HIM TO THE POLICE STATION.  HE WAS OF THE OPINION THAT HE
HAD NO PROBABLE CAUSE TO ARREST PETITIONER.  PLAINLY, HOWEVER,
PETITIONER MUST BE CONSIDERED TO HAVE BEEN TAKEN INTO CUSTODY EITHER AT
THE TIME THE OFFICER CAME TO GET HIM, OR SHORTLY THEREAFTER WHEN THE
POLICE, BY THEIR CONDUCT, EFFECTIVELY ASSERTED A RIGHT TO DETAIN HIM
INDEFINITELY AT THE JAIL.  THE COURT OF CRIMINAL APPEALS WAS APPARENTLY
OF THE VIEW THAT THE RULE OF WONG SUN V. UNITED STATES, 371 U.S. 471
(1963), IS INAPPLICABLE TO STATE TRIALS - AN ISSUE UPON WHICH WE
EXPRESS NO OPINION HEREIN, SINCE WE FIND PETITIONER'S STATEMENT
INADMISSIBLE ON OTHER GROUNDS. 

FN8  AT TRIAL, PETITIONER MOVED FOR PRODUCTION BY THE STATE OF ALL
THREE CONFESSIONS, AS NECESSARY TO SUPPORT HIS CLAIM THAT THE MANNER OF
THEIR ELICITING RENDERED THEM INADMISSIBLE.  THAT THESE PRIOR
CONFESSIONS MIGHT HAVE BEEN DIRECTLY RELEVANT TO PETITIONER'S CENTRAL
DEFENSE CAN SCARCELY BE DOUBTED; FOR EXAMPLE, IT CAME OUT DURING THE
HEARING ON THE MOTION TO SUPPRESS THAT PETITIONER HAD INITIALLY
CONFESSED TO KILLING HIS WIFE BY SHOOTING HER - A CLAIM CONTRARY TO HIS
LATER CONFESSIONS AND TO KNOWN FACTS LATER DISCOVERED - AND THIS
INCONSISTENCY LENDS SOME WEIGHT TO PETITIONER'S DEFENSE OF
NONVOLUNTARINESS.  PERHAPS THERE WERE OTHER INCONSISTENCIES WHICH
PETITIONER COULD HAVE SHOWN, HAD HE HAD ACCESS TO THE PRIOR
CONFESSIONS.  UNDER AMENDED RULE 16 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, A FEDERAL DEFENDANT, COULD, PRIOR TO TRIAL, DISCOVER HIS OWN
STATEMENTS; IT SEEMS THAT UNDER THE NEW 1965 TEXAS CODE OF CRIMINAL
PROCEDURE, ART. 39.14, PRETRIAL DISCOVERY OF PETITIONER'S CONFESSIONS
WOULD HAVE BEEN PROPER.  CF. ALSO DENNIS V. UNITED STATES, 384 U.S.
855, 871, AND N. 17 (1966).  THIS COURT HAS SUGGESTED THAT IN SOME
CIRCUMSTANCES IT MAY BE A DENIAL OF DUE PROCESS FOR A DEFENDANT TO BE
REFUSED ANY DISCOVERY OF HIS STATEMENTS TO THE POLICE.  CICENIA V.
LAGAY, 357 U.S. 504, 510-511 (1958); LELAND V. OREGON, 343 U.S. 790,
801-802 (1952).  IN LIGHT OF OUR DISPOSITION OF THIS CASE, HOWEVER, WE
NEED NOT REACH THIS QUESTION. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, AND MR. JUSTICE HARLAN CONCUR
IN THE RESULT. 
..END :












PROHIBITION PARTY OF MICHIGAN V. HARE 386 U.S. 713 


NO. 1098.  DECIDED APRIL 24, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


PROHIBITION PARTY OF MICHIGAN ET AL. V. HARE, SECRETARY OF STATE OF
MICHIGAN, ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















ARNOLD V. VIRGINIA 386 U.S. 713 


NO. 1118.  DECIDED APRIL 24, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


ARNOLD V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WOODWORK MANUFACTURERS V. NATIONAL LABOR RELATIONS BOARD 386 U.S. 612 


NO. 110.  ARGUED JANUARY 18 AND 19, 1967.  - DECIDED APRIL 17, 1967.* -
354 F.2D 594, AFFIRMED IN NO. 110 AND REVERSED IN NO. 111. 

*TOGETHER WITH NO. 111, NATIONAL LABOR RELATIONS BOARD V. NATIONAL
WOODWORK MANUFACTURERS ASSOCIATION ET AL., ALSO ON CERTIORARI TO THE
SAME COURT. 


A GENERAL CONTRACTOR (FROUGE) WORKING ON A HOUSING PROJECT IN
PHILADELPHIA WAS SUBJECT TO A COLLECTIVE BARGAINING AGREEMENT BETWEEN A
LOCAL CARPENTERS' UNION AND A GENERAL CONTRACTORS' ASSOCIATION IN WHICH
IT WAS AGREED THAT UNION MEMBERS WOULD NOT HANDLE PREMACHINED DOORS. 
FROUGE, WHOSE CONTRACT WOULD HAVE PERMITTED "BLANK" DOORS, ORDERED
PREMACHINED DOORS FROM A MANUFACTURER, A MEMBER OF THE NATIONAL
WOODWORK MANUFACTURERS ASSOCIATION (NWMA).  WHEN THE UNION ORDERED ITS
MEMBERS NOT TO HANG THE PREMACHINED DOORS, FROUGE SUBSTITUTED "BLANK"
DOORS, WHICH THE CARPENTERS FITTED AND CUT AT THE JOBSITE.  THE NWMA
FILED CHARGES AGAINST THE UNION WITH THE NATIONAL LABOR RELATIONS BOARD
(NLRB), CLAIMING THAT BY INCLUDING THE "WILL NOT HANDLE" PROVISION IN
THE COLLECTIVE BARGAINING AGREEMENT AND ENFORCING IT, THE UNION
VIOLATED TWO PROVISIONS WHICH THE LANDRUM-GRIFFIN ACT RESPECTIVELY
ADDED TO AND AMENDED IN THE NATIONAL LABOR RELATIONS ACT - SEC 8(E),
WHICH MAKES IT AN UNFAIR LABOR PRACTICE TO ENTER INTO AN AGREEMENT THAT
AN EMPLOYER WILL REFRAIN FROM HANDLING THE PRODUCTS OF ANOTHER EMPLOYER
AND SEC. 8(B)(4)(B), WHICH MAKES IT AN UNFAIR LABOR PRACTICE TO FORCE A
PERSON TO CEASE USING THE PRODUCTS OF ANOTHER MANUFACTURER.  THE NLRB
DISMISSED THE CHARGES, ADOPTING ITS TRIAL EXAMINER'S FINDINGS THAT THE
"WILL NOT HANDLE" PROVISION HAD AS ITS OBJECT THE PRESERVATION FOR
JOBSITE CARPENTERS OF CUTTING OUT AND FITTING WORK WHICH THEY HAD
CUSTOMARILY PERFORMED AND ITS ENFORCEMENT AGAINST FROUGE CONSTITUTED
"PRIMARY ACTIVITY" NOT PROHIBITED BY SECS. 8(E) AND 8(B)(4)(B).  THE
COURT OF APPEALS REVERSED THE DISMISSAL OF THE SEC. 8(E) CHARGE,
CONCLUDING THAT THE "WILL NOT HANDLE" PROVISION WAS DESIGNED TO EFFECT
A PRODUCT BOYCOTT LIKE THAT CONDEMNED IN ALLEN BRADLEY CO. V. UNION,
325 U.S. 797; AND THE NLRB PETITIONED FOR CERTIORARI (NO. 111).  THE
COURT SUSTAINED DISMISSAL OF THE SEC. 8(B)(4)(B) CHARGE, AGREEING WITH
THE NLRB THAT THE UNION'S CONDUCT AS TO FROUGE WAS A PRIMARY DISPUTE
AND AS SUCH CAME WITHIN THE EXEMPTION PROVISO OF CLAUSE (B); AND THE
NWMA PETITIONED FOR CERTIORARI (NO. 110).  HELD: 

1.  SECTION 8(B)(4)(B) WAS ENACTED, NOT TO PROHIBIT PRIMARY
AGREEMENTS AND PRIMARY ACTION DIRECTED TO WORK PRESERVATION, BUT TO
PROHIBIT "SECONDARY" OBJECTIVES, I.E., THE EXERTION OF PRESSURE ON A
NEUTRAL EMPLOYER.  PP. 619-633. 

(A)  CONGRESS HAS STOPPED SHORT OF PROSCRIBING ACTIVITY TO PRESSURE
THE EMPLOYER FOR AGREEMENTS REGULATING RELATIONS BETWEEN HIM AND HIS
OWN EMPLOYEES.  P. 620. 

(B)  THE PREDECESSOR OF SEC. 8(B)(4)(B)(THE BASIC THRUST OF WHICH WAS
NOT CHANGED BY THE LANDRUM-GRIFFIN AMENDMENTS) WAS ENACTED TO ELIMINATE
THE "SECONDARY BOYCOTT" DESIGNED TO INJURE THE BUSINESS OF A THIRD
PERSON NOT CONCERNED IN THE DISAGREEMENT BETWEEN AN EMPLOYER AND THE
UNION.  PP. 623-626. 

(C)  JUDICIAL DECISIONS INTERPRETING THE PREDECESSOR OF SEC.
8(B)(4)(B) UNIFORMLY LIMITED ITS APPLICATION TO "SECONDARY" SITUATIONS,
AND THIS COURT HAS CONSISTENTLY REFUSED TO READ THE PROVISION AS
BANNING TRADITIONAL PRIMARY LABOR ACTIVITY HAVING AN IMPACT ON NEUTRAL
EMPLOYERS, EVEN THOUGH SUCH ACTIVITY FELL WITHIN THE LITERAL TERMS OF
THE PROVISION.  PP. 626-627. 

(D)  ALLEN BRADLEY CO., SUPRA, DISTINGUISHED.  PP. 628-631. 

(E)  IN REWRITING THE PREDECESSOR PROVISION AS SEC. 8(B)(4)(B)
CONGRESS CONFIRMED THE LIMITED APPLICATION OF THE SECTION TO
"SECONDARY" CONDUCT, ADDING THE PROVISO THAT NOTHING THEREIN "SHALL BE
CONSTRUED TO MAKE UNLAWFUL, WHERE NOT OTHERWISE UNLAWFUL, ANY PRIMARY
STRIKE OR PRIMARY PICKETING."  PP. 632-633. 

2.  SECTION 8(E) LIKEWISE DOES NOT REACH EMPLOYEES' PRIMARY ACTIVITY
AND DOES NOT PROHIBIT AGREEMENTS MADE TO PRESSURE THEIR EMPLOYER TO
PRESERVE FOR THEMSELVES WORK TRADITIONALLY DONE BY THEM.  PP. 633-642. 

(A)  THE ADDITION OF SEC. 8(E) TO THE ACT WAS DESIGNED TO PLUG A
LOOPHOLE RESULTING FROM CARPENTERS' UNION V. LABOR BOARD (SAND DOOR),
357 U.S. 93, IN WHICH IT WAS STRESSED THAT THE MERE EXECUTION OF OR AN
EMPLOYER'S VOLUNTARY OBSERVANCE OF A "HOT CARGO" CLAUSE DID NOT VIOLATE
THE PREDECESSOR OF SEC. 8(B)(4)(B).  PP. 634-635. 

(B)  THE LEGISLATIVE HISTORY OF SEC. 8(E) AND PROVISOS PRESERVING THE
STATUS QUO IN THE CONSTRUCTION INDUSTRY AND EXEMPTING THE GARMENT
INDUSTRY FROM THE PROHIBITIONS OF SECS. 8(E) AND 8(B)(4)(B) INDICATE
THAT PRIMARY WORK-PRESERVATION AGREEMENTS WERE NOT TO BE WITHIN THE BAN
OF SEC. 8(E).  PP. 635-642. 

3.  SUBSTANTIAL EVIDENCE SUPPORTED THE TRIAL EXAMINER'S FINDING,
ADOPTED BY THE NLRB, THAT THE "WILL NOT HANDLE" PROVISION WAS DESIGNED
TO PRESERVE WORK TRADITIONALLY PERFORMED BY JOBSITE CARPENTERS, AND
THAT THE UNION'S MAKING OF THE "WILL NOT HANDLE" AGREEMENT AND ITS
MAINTENANCE THEREOF DID NOT RESPECTIVELY VIOLATE SECS. 8(E) AND
8(B)(4)(B).  PP. 645-646. 

NATIONAL WOODWORK MANUFACTURERS ASSOCIATION ET AL. V. NATIONAL LABOR
RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

UNDER THE LANDRUM-GRIFFIN ACT AMENDMENTS ENACTED IN 1959, 73 STAT.
542, SEC. 8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 141,
BECAME SEC. 8(B)(4)(B) AND SEC. 8(E) WAS ADDED.  THE QUESTIONS HERE ARE
WHETHER, IN THE CIRCUMSTANCES OF THESE CASES, THE METROPOLITAN DISTRICT
COUNCIL OF PHILADELPHIA AND VICINITY OF THE UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (HEREAFTER THE UNION),
COMMITTED THE UNFAIR LABOR PRACTICES PROHIBITED BY SECS. 8(E) AND
8(B)(4)(B).   (FN1) 

FROUGE CORPORATION, A BRIDGEPORT, CONNECTICUT, CONCERN, WAS THE
GENERAL CONTRACTOR ON A HOUSING PROJECT IN PHILADELPHIA.  FROUGE HAD A
COLLECTIVE BARGAINING AGREEMENT WITH THE CARPENTERS' INTERNATIONAL
UNION UNDER WHICH FROUGE AGREED TO BE BOUND BY THE RULES AND
REGULATIONS AGREED UPON BY LOCAL UNIONS WITH CONTRACTORS IN AREAS IN
WHICH FROUGE HAD JOBS.  FROUGE WAS THEREFORE SUBJECT TO THE PROVISIONS
OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE UNION AND AN
ORGANIZATION OF PHILADELPHIA CONTRACTORS, THE GENERAL BUILDING
CONTRACTORS ASSOCIATION, INC. A SENTENCE IN A PROVISION OF THAT
AGREEMENT ENTITLED RULE 17 PROVIDES THAT "  ...  NO MEMBER OF THIS
DISTRICT COUNCIL WILL HANDLE  ...  ANY DOORS  ...  WHICH HAVE BEEN
FITTED PRIOR TO BEING FURNISHED ON THE JOB  ...  ."  (FN2)  FROUGE'S
PHILADELPHIA PROJECT CALLED FOR 3,600 DOORS.  CUSTOMARILY, BEFORE THE
DOORS COULD BE HUNG ON SUCH PROJECTS, "BLANK" OR "BLIND" DOORS WOULD BE
MORTISED FOR THE KNOB, ROUTED FOR THE HINGES, AND BEVELED TO MAKE THEM
FIT BETWEEN JAMBS.  THESE ARE TASKS TRADITIONALLY PERFORMED IN THE
PHILADELPHIA AREA BY THE CARPENTERS EMPLOYED ON THE JOBSITE.  HOWEVER,
PRECUT AND PREFITTED DOORS READY TO HANG MAY BE PURCHASED FROM DOOR
MANUFACTURERS.  ALTHOUGH FROUGE'S CONTRACT AND JOB SPECIFICATIONS DID
NOT CALL FOR PREMACHINED DOORS, AND "BLANK" OR "BLIND" DOORS COULD HAVE
BEEN ORDERED, FROUGE CONTRACTED FOR THE PURCHASE OF PREMACHINED DOORS
FROM A PENNSYLVANIA DOOR MANUFACTURER WHICH IS A MEMBER OF THE NATIONAL
WOODWORK MANUFACTURERS ASSOCIATION, PETITIONER IN NO. 110 AND
RESPONDENT IN NO. 111.  THE UNION ORDERED ITS CARPENTER MEMBERS NOT TO
HANG THE DOORS WHEN THEY ARRIVED AT THE JOBSITE.  FROUGE THEREUPON
WITHDREW THE PREFABRICATED DOORS AND SUBSTITUTED "BLANK" DOORS WHICH
WERE FITTED AND CUT BY ITS CARPENTERS ON THE JOBSITE. 

THE NATIONAL WOODWORK MANUFACTURERS ASSOCIATION AND ANOTHER FILED
CHARGES WITH THE NATIONAL LABOR RELATIONS BOARD AGAINST THE UNION
ALLEGING THAT BY INCLUDING THE "WILL NOT HANDLE" SENTENCE OF RULE 17 IN
THE COLLECTIVE BARGAINING AGREEMENT THE UNION COMMITTED THE UNFAIR
LABOR PRACTICE UNDER SEC. 8(E) OF ENTERING INTO AN "AGREEMENT  ...
WHEREBY THE EMPLOYER  ...  AGREES TO CEASE OR REFRAIN FROM HANDLING
...  ANY OF THE PRODUCTS OF ANY OTHER EMPLOYER  ...  ," AND ALLEGING
FURTHER THAT IN ENFORCING THE SENTENCE AGAINST FROUGE, THE UNION
COMMITTED THE UNFAIR LABOR PRACTICE UNDER SEC. 8(B)(4)(B) OF "FORCING
OR REQUIRING ANY PERSON TO CEASE USING  ...  THE PRODUCTS OF ANY OTHER
... MANUFACTURER  ...  ."  THE NATIONAL LABOR RELATIONS BOARD DISMISSED
THE CHARGES, 149 N.L.R.B. 646.  (FN3)  THE BOARD ADOPTED THE FINDINGS
OF THE TRIAL EXAMINER THAT THE "WILL NOT HANDLE" SENTENCE IN RULE 17
WAS LANGUAGE USED BY THE PARTIES TO PROTECT AND PRESERVE CUTTING OUT
AND FITTING AS UNIT WORK TO BE PERFORMED BY THE JOBSITE CARPENTERS. 
THE BOARD ALSO ADOPTED THE HOLDING OF THE TRIAL EXAMINER THAT BOTH THE
SENTENCE OF RULE 17 ITSELF AND ITS MAINTENANCE AGAINST FROUGE WERE
THEREFORE "PRIMARY" ACTIVITY OUTSIDE THE PROHIBITIONS OF SECS. 8(E) AND
8(B)(4)(B).  THE FOLLOWING STATEMENT OF THE TRIAL EXAMINER WAS ADOPTED
BY THE BOARD: 

"I AM CONVINCED AND FIND THAT THE TASKS OF CUTTING OUT AND FITTING
MILLWORK, INCLUDING DOORS, HAS, AT LEAST CUSTOMARILY, BEEN PERFORMED BY
THE CARPENTERS EMPLOYED ON THE JOBSITE.  CERTAINLY, THIS PROVISION OF
RULE 17 IS NOT CONCERNED WITH THE NATURE OF THE EMPLOYER WITH WHOM THE
CONTRACTOR DOES BUSINESS NOR WITH THE EMPLOYMENT CONDITIONS OF OTHER
EMPLOYERS OR EMPLOYEES, NOR DOES IT ATTEMPT TO CONTROL SUCH OTHER
EMPLOYERS OR EMPLOYEES.  THE PROVISION GUARDS AGAINST ENCROACHMENTS ON
THE CUTTING OUT AND FITTING WORK OF THE CONTRACT UNIT EMPLOYEES WHO
HAVE PERFORMED THAT WORK IN THE PAST.  ITS PURPOSE IS PLAINLY TO
REGULATE THE RELATIONS BETWEEN THE GENERAL CONTRACTOR AND HIS OWN
EMPLOYEES AND TO PROTECT A LEGITIMATE ECONOMIC INTEREST OF THE
EMPLOYEES BY PRESERVING THEIR UNIT WORK.  MERELY BECAUSE IT
INCIDENTALLY ALSO AFFECTS OTHER PARTIES IS NO BASIS FOR INVALIDATING
THIS PROVISION. 

"I FIND THAT  ...  THE PROVISION IS A LAWFUL WORK-PROTECTION OR WORK
PRESERVATION PROVISION AND THAT RESPONDENTS HAVE NOT VIOLATED SECTION
8(E) OF THE ACT BY ENTERING INTO AGREEMENTS CONTAINING THIS PROVISION
AND BY THEREAFTER MAINTAINING AND ENFORCING THIS PROVISION."  149
N.L.R.B., AT 657. 

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED THE BOARD IN
THIS RESPECT.  354 F.2D 594, 599.  THE COURT HELD THAT THE "WILL NOT
HANDLE" AGREEMENT VIOLATED SEC. 8(E) WITHOUT REGARD TO ANY "PRIMARY" OR
"SECONDARY" OBJECTIVE, AND REMANDED TO THE BOARD WITH INSTRUCTIONS TO
ENTER AN ORDER ACCORDINGLY.  IN THE COURT'S VIEW, THE SENTENCE WAS
DESIGNED TO EFFECT A PRODUCT BOYCOTT LIKE THE ONE CONDEMNED IN ALLEN
BRADLEY CO. V. LOCAL UNION NO. 3, 325 U.S. 797, AND CONGRESS MEANT, IN
ENACTING SEC. 8(E) AND SEC.  8(B)(4)(B), TO PROHIBIT SUCH AGREEMENTS
AND CONDUCT FORCING EMPLOYERS TO ENTER INTO THEM. 

THE COURT OF APPEALS SUSTAINED, HOWEVER, THE DISMISSAL OF THE SEC.
8(B)(4)(B) CHARGE.  THE COURT AGREED WITH THE BOARD THAT THE UNION'S
CONDUCT AS TO FROUGE INVOLVED ONLY A PRIMARY DISPUTE WITH IT AND HELD
THAT THE CONDUCT WAS THEREFORE NOT PROHIBITED BY THAT SECTION BUT
EXPRESSLY PROTECTED BY THE PROVISO "THAT NOTHING CONTAINED IN THIS
CLAUSE (B) SHALL BE CONSTRUED TO MAKE UNLAWFUL, WHERE NOT OTHERWISE
UNLAWFUL, ANY PRIMARY STRIKE OR PRIMARY PICKETING  ...  ."  354 F.2D,
AT 597. 

WE GRANTED CERTIORARI ON THE PETITION OF THE WOODWORK MANUFACTURERS
ASSOCIATION IN NO. 110 AND ON THE PETITION OF THE BOARD IN NO. 111. 
384 U.S. 968.  WE AFFIRM IN NO. 110 AND REVERSE IN NO. 111. 

                                        I. 

EVEN ON THE DOUBTFUL PREMISE THAT THE WORDS OF SEC. 8(E)
UNAMBIGUOUSLY EMBRACE THE SENTENCE OF RULE 17,  (FN4) THIS DOES NOT END
INQUIRY INTO CONGRESS' PURPOSE IN ENACTING THE SECTION.  IT IS A
"FAMILIAR RULE, THAT A THING MAY BE WITHIN THE LETTER OF THE STATUTE
AND YET NOT WITHIN THE STATUTE, BECAUSE NOT WITHIN ITS SPIRIT, NOR
WITHIN THE INTENTION OF ITS MAKERS."  HOLY TRINITY CHURCH V. UNITED
STATES, 143 U.S. 457, 459.  THAT PRINCIPLE HAS PARTICULAR APPLICATION
IN THE CONSTRUCTION OF LABOR LEGISLATION WHICH IS "TO A MARKED DEGREE,
THE RESULT OF CONFLICT AND COMPROMISE BETWEEN STRONG CONTENDING FORCES
AND DEEPLY HELD VIEWS ON THE ROLE OF ORGANIZED LABOR IN THE FREE
ECONOMIC LIFE OF THE NATION AND THE APPROPRIATE BALANCE TO BE STRUCK
BETWEEN THE UNCONTROLLED POWER OF MANAGEMENT AND LABOR TO FURTHER THEIR
RESPECTIVE INTERESTS."  LOCAL 1976, UNITED BROTHERHOOD OF CARPENTERS V.
LABOR BOARD (SAND DOOR), 357 U.S. 93, 99-100.  SEE, E.G., LABOR BOARD
V. FRUIT & VEGETABLE PACKERS, 377 U.S. 58; LABOR BOARD V. SERVETTE,
INC., 377 U.S. 46; LABOR BOARD V. DRIVERS LOCAL UNION, 362 U.S. 274;
MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270; LABOR BOARD V. LION
OIL CO., 352 U.S. 282; LABOR BOARD V. INTERNATIONAL RICE MILLING CO.,
341 U.S. 665; LOCAL 761, ELECTRICAL WORKERS V. LABOR BOARD, 366 U.S.
667. 

STRONGLY HELD OPPOSING VIEWS HAVE INVARIABLY MARKED CONTROVERSY OVER
LABOR'S USE OF THE BOYCOTT TO FURTHER ITS AIMS BY INVOLVING AN EMPLOYER
IN DISPUTES NOT HIS OWN.  BUT CONGRESSIONAL ACTION TO DEAL WITH SUCH
CONDUCT HAS STOPPED SHORT OF PROSCRIBING IDENTICAL ACTIVITY HAVING THE
OBJECT OF PRESSURING THE EMPLOYER FOR AGREEMENTS REGULATING RELATIONS
BETWEEN HIM AND HIS OWN EMPLOYEES.  THAT CONGRESS MEANT SECS. 8(E) AND
8(B)(4)(B) TO PROHIBIT ONLY "SECONDARY" OBJECTIVES CLEARLY APPEARS FROM
AN EXAMINATION OF THE HISTORY OF CONGRESSIONAL ACTION ON THE SUBJECT;
WE MAY, BY SUCH AN EXAMINATION, "RECONSTITUTE THE GAMUT OF VALUES
CURRENT AT THE TIME WHEN THE WORDS WERE UTTERED."  (FN5) 

THE HISTORY BEGINS WITH JUDICIAL APPLICATION OF THE SHERMAN ACT (26
STAT. 209) TO LABOR ACTIVITIES.  FEDERAL COURT INJUNCTIONS FREELY
ISSUED AGAINST ALL MANNER OF STRIKES AND BOYCOTTS UNDER RULINGS THAT
CONDEMNED VIRTUALLY EVERY COLLECTIVE ACTIVITY OF LABOR AS AN UNLAWFUL
RESTRAINT OF TRADE.  (FN6)  THE FIRST CONGRESSIONAL RESPONSE TO
VEHEMENT LABOR PROTESTS CAME WITH SEC. 20 OF THE CLAYTON ACT IN 1914. 
THAT SECTION PURPORTED DRASTICALLY TO LIMIT THE INJUNCTION POWER OF
FEDERAL COURTS IN CONTROVERSIES "INVOLVING, OR GROWING OUT OF, A
DISPUTE CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT."  IN TERMS, IT
PROHIBITED RESTRAINING ANY PERSON FROM "CEASING TO PERFORM ANY WORK OR
LABOR" OR "FROM CEASING TO PATRONIZE OR TO EMPLOY ANY PARTY TO SUCH
DISPUTE, OR FROM RECOMMENDING, ADVISING, OR PERSUADING OTHERS BY
PEACEFUL AND LAWFUL MEANS SO TO DO."  38 STAT. 738.  LABOR HAILED THE
LAW AS A CHARTER IMMUNIZING ITS ACTIVITIES FROM THE ANTITRUST LAWS. 
THIS EXPECTATION WAS DISAPPOINTED WHEN DUPLEX PRINTING PRESS CO. V.
DEERING, 254 U.S. 443, AND BEDFORD CUT STONE CO. V. JORNEYMEN STONE
CUTTERS' ASSN., 274 U.S. 37, HELD THAT SEC 20 IMMUNIZED ONLY TRADE
UNION ACTIVITIES DIRECTED AGAINST AN EMPLOYER BY HIS OWN EMPLOYEES.  IN
DUPLEX, THE UNION CARRIED ON AN ELABORATE SCHEME TO COERCE AND RESTRAIN
NEUTRAL CUSTOMERS OF THE COMPLAINANT MANUFACTURER FROM DEALING WITH IT,
WITH THE OBJECT OF USING THESE CUSTOMERS AS AN ECONOMIC LEVER TO BRING
THE NONUNION MANUFACTURER TO TERMS.  THE COURT THERE STATED: 

"THE SUBSTANCE OF THE MATTERS HERE COMPLAINED OF IS AN INTERFERENCE
WITH COMPLAINANT'S INTERSTATE TRADE, INTENDED TO HAVE COERCIVE EFFECT
UPON COMPLAINANT, AND PRODUCED BY WHAT IS COMMONLY KNOWN AS A
'SECONDARY BOYCOTT,' THAT IS, A COMBINATION NOT MERELY TO REFRAIN FROM
DEALING WITH COMPLAINANT, OR TO ADVISE OR BY PEACEFUL MEANS PERSUADE
COMPLAINANT'S CUSTOMERS TO REFRAIN ('PRIMARY BOYCOTT'), BUT TO EXERCISE
COERCIVE PRESSURE UPON SUCH CUSTOMERS, ACTUAL OR PROSPECTIVE, IN ORDER
TO CAUSE THEM TO WITHHOLD OR WITHDRAW PATRONAGE FROM COMPLAINANT
THROUGH FEAR OF LOSS OR DAMAGE TO THEMSELVES SHOULD THEY DEAL WITH
IT."  DUPLEX PRINTING PRESS CO. V. DEERING, SUPRA, AT 466. 

THUS "PRIMARY" BUT NOT "SECONDARY" PRESSURES WERE EXCEPTED FROM THE
ANTITRUST LAWS.  TRUAX V. CORRIGAN, 257 U.S. 312, 330, DEFINED
"SECONDARY BOYCOTT" AS ONE "WHERE MANY COMBINE TO INJURE ONE IN HIS
BUSINESS BY COERCING THIRD PERSONS AGAINST THEIR WILL TO CEASE
PATRONIZING HIM BY THREATS OF SIMILAR INJURY  ...  .  THE QUESTION IN
SUCH CASES IS WHETHER THE MORAL COERCION EXERCISED OVER A STRANGER TO
THE ORIGINAL CONTROVERSY BY STEPS IN THEMSELVES LEGAL BECOMES A LEGAL
WRONG."  SEE 1 TELLER, LABOR DISPUTES AND COLLECTIVE BARGAINING SEC 145
(1940).  (FN7)  COMMENTATORS OF THE DAY, WHILE NOTING THE AMBIGUITY
WHICH LURKED IN THE DEFINITION, DISCERNED ITS CORE CONCEPT:  UNION
PRESSURE DIRECTED AT A NEUTRAL EMPLOYER THE OBJECT OF WHICH WAS TO
INDUCE OR COERCE HIM TO CEASE DOING BUSINESS WITH AN EMPLOYER WITH WHOM
THE UNION WAS ENGAGED IN A LABOR DISPUTE.  (FN8) 

IN 1932 CONGRESS ENACTED THE NORRIS-LAGUARDIA ACT AND TIPPED THE
SCALES THE OTHER WAY.  ITS PROVISIONS "ESTABLISHED THAT THE ALLOWABLE
AREA OF UNION ACTIVITY WAS NOT TO BE RESTRICTED, AS IT HAD BEEN IN THE
DUPLEX CASE, TO AN IMMEDIATE EMPLOYER-EMPLOYEE RELATION."  UNITED
STATES V. HUTCHESON, 312 U.S. 219, 231.  (FN9)  CONGRESS ABOLISHED, FOR
PURPOSES OF LABOR IMMUNITY, THE DISTINCTION BETWEEN PRIMARY ACTIVITY
BETWEEN THE "IMMEDIATE DISPUTANTS" AND SECONDARY ACTIVITY IN WHICH THE
EMPLOYER DISPUTANTS AND MEMBERS OF THE UNION DO NOT STAND "IN THE
PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE  ...  ."  H.R.  REP. NO.
669, 72D CONG., 1ST SESS., 8 (1932).  THUS, IN HUTCHESON, SUPRA, THE
COURT HELD THAT THE NORRIS-LAGUARDIA ACT IMMUNIZED A JURISDICTIONAL
STRIKE TRAPPING A NEUTRAL EMPLOYER IN THE MIDDLE OF AN "INTERNECINE
STRUGGLE BETWEEN TWO UNIONS SEEKING THE FAVOR OF THE SAME EMPLOYER,"
SUPRA, AT 232.  COMMENTATORS OF THE POST-NORRIS-LAGUARDIA ERA, AS THOSE
BEFORE, WHILE CONTINUING TO DEPLORE THE CHAMELEON-LIKE QUALITIES OF THE
TERM "SECONDARY BOYCOTT," AGREED UPON ITS CENTRAL ASPECT:  PRESSURE
TACTICALLY DIRECTED TOWARD A NEUTRAL EMPLOYER IN A LABOR DISPUTE NOT
HIS OWN.  (FN10) 

LABOR ABUSES OF THE BROAD IMMUNITY GRANTED BY THE NORRIS-LAGUARDIA
ACT RESULTED IN THE TAFT-HARTLEY ACT PROHIBITIONS AGAINST SECONDARY
ACTIVITIES ENACTED IN SEC. 8(B)(4)(A), WHICH, AS AMENDED IN 1959, IS
NOW SEC. 8(B)(4)(B).  AS WILL APPEAR, THE BASIC THRUST OF THE
ACCOMMODATION THERE EFFECTED BY CONGRESS WAS NOT EXPANDED BY THE
LANDRUM-GRIFFIN AMENDMENTS.  THE CONGRESSIONAL DESIGN IN ENACTING SEC.
8(B)(4)(A) IS THEREFORE CRUCIAL TO THE DETERMINATION OF THE SCOPE OF
SECS. 8(E) AND 8(B)(4)(B).  SENATOR TAFT SAID OF ITS PURPOSE:    "THIS
PROVISION MAKES IT UNLAWFUL TO RESORT TO A SECONDARY BOYCOTT TO INJURE
THE BUSINESS OF A THIRD PERSON WHO IS WHOLLY UNCONCERNED IN THE
DISAGREEMENT BETWEEN AN EMPLOYER AND HIS EMPLOYEES ...  .  UNDER THE
PROVISIONS OF THE NORRIS-LAGUARDIA ACT, IT BECAME IMPOSSIBLE TO STOP A
SECONDARY BOYCOTT OR ANY OTHER KIND OF A STRIKE, NO MATTER HOW UNLAWFUL
IT MAY HAVE BEEN AT COMMON LAW.  ALL THIS PROVISION OF THE BILL DOES IS
TO REVERSE THE EFFECT OF THE LAW AS TO SECONDARY BOYCOTTS."  (FN11) 

SENATOR TAFT AND OTHERS FREQUENTLY SOUNDED THIS NOTE THAT SEC.
8(B)(4)(A) WAS DESIGNED TO ELIMINATE THE "SECONDARY BOYCOTT,"  (FN12)
AND ITS PROPONENTS UNIFORMLY CITED EXAMPLES OF UNION CONDUCT WHICH
EVIDENCED LABOR EFFORTS TO DRAW IN NEUTRAL EMPLOYERS THROUGH PRESSURE
CALCULATED TO INDUCE THEM TO CEASE DOING BUSINESS WITH THE PRIMARY
EMPLOYER.  (FN13)  AND THE SENATE COMMITTEE REPORT CAREFULLY
CHARACTERIZED THE CONDUCT PROHIBITED BY SEC. 8(B)(4)(A) IN THE SAME
TERMS: 

"THUS, IT WOULD NOT BE LAWFUL FOR A UNION TO ENGAGE IN A STRIKE
AGAINST EMPLOYER A FOR THE PURPOSE OF FORCING THAT EMPLOYER TO CEASE
DOING BUSINESS WITH EMPLOYER B; NOR WOULD IT BE LAWFUL FOR A UNION TO
BOYCOTT EMPLOYER A BECAUSE EMPLOYER A USES OR OTHERWISE DEALS IN THE
GOODS OF OR DOES BUSINESS WITH EMPLOYER B (WITH WHOM THE UNION HAS A
DISPUTE)."  S. REP. NO. 105, 80TH CONG., 1ST SESS., 22, I 1947 LEG. 
HIST.  428.  (FN14) 

THE OTHER SUBSECTIONS OF SEC. 8(B)(4) OF THE ACT WERE SIMILARLY
LIMITED TO PROTECTING EMPLOYERS IN THE POSITION OF NEUTRALS BETWEEN
CONTENDING PARTIES.  THE PROHIBITION OF SUBSECTION (B) AGAINST A
NONCERTIFIED UNION'S FORCING RECOGNITION FROM AN EMPLOYER WAS DESIGNED
TO PROTECT THE EMPLOYER TRAPPED BETWEEN THE UNION AND HIS EMPLOYEES, A
MAJORITY OF WHOM MAY NOT DESIRE TO CHOOSE THE UNION AS THEIR
REPRESENTATIVE.  THE PROHIBITION OF SUBSECTION (C) AGAINST A DEMAND FOR
RECOGNITION WHEN ANOTHER UNION HAS BEEN CERTIFIED PROTECTS THE EMPLOYER
TRAPPED BETWEEN THE NONCERTIFIED AND THE CERTIFIED UNIONS.  THE
PROHIBITION OF SUBSECTION (D) AGAINST COERCION TO FORCE AN EMPLOYER TO
ASSIGN CERTAIN WORK TO ONE OF TWO UNIONS CONTESTING FOR IT PROTECTS THE
EMPLOYER TRAPPED BETWEEN THE TWO CLAIMS.  THE CENTRAL THEME PERVADING
THESE PROVISIONS OF PROTECTION FOR THE NEUTRAL EMPLOYER CONFIRMS THE
ASSURANCES OF THOSE SPONSORING THE SECTION THAT IN SUBSECTION (A)
CONGRESS LIKEWISE MEANT TO PROTECT THE EMPLOYER ONLY FROM UNION
PRESSURES DESIGNED TO INVOLVE HIM IN DISPUTES NOT HIS OWN.  (FN15) 

JUDICIAL DECISIONS INTERPRETING THE BROAD LANGUAGE OF SEC. 8(B)(4)(A)
OF THE ACT UNIFORMLY LIMITED ITS APPLICATION TO SUCH "SECONDARY"
SITUATIONS.  (FN16)  THIS LIMITATION WAS IN "CONFORMITY WITH THE DUAL
CONGRESSIONAL OBJECTIVES OF PRESERVING THE RIGHT OF LABOR ORGANIZATIONS
TO BRING PRESSURE TO BEAR ON OFFENDING EMPLOYERS IN PRIMARY LABOR
DISPUTES AND OF SHIELDING UNOFFENDING EMPLOYERS AND OTHERS FROM
PRESSURES IN CONTROVERSIES NOT THEIR OWN."  LABOR BOARD V. DENVER BLDG.
TRADES COUNCIL, 341 U.S. 675, 692.  THIS COURT ACCORDINGLY REFUSED TO
READ SEC. 8(B)(4)(A) TO BAN TRADITIONAL PRIMARY STRIKES AND PICKETING
HAVING AN IMPACT ON NEUTRAL EMPLOYERS EVEN THOUGH THE ACTIVITY FELL
WITHIN ITS SWEEPING TERMS.  LABOR BOARD V. INTERNATIONAL RICE MILLING
CO., 341 U.S. 665; SEE LOCAL 761, ELECTRICAL WORKERS V. LABOR BOARD,
366 U.S. 667.  THUS, HOWEVER SEVERE THE IMPACT OF PRIMARY ACTIVITY ON
NEUTRAL EMPLOYERS, IT WAS NOT THEREBY TRANSFORMED INTO ACTIVITY WITH A
SECONDARY OBJECTIVE. 

THE LITERAL TERMS OF SEC. 8(B)(4)(A) ALSO WERE NOT APPLIED IN THE SO
CALLED "ALLY DOCTRINE" CASES, IN WHICH THE UNION'S PRESSURE WAS AIMED
TOWARD EMPLOYERS PERFORMING THE WORK OF THE PRIMARY EMPLOYER'S STRIKING
EMPLOYEES.  THE RATIONALE, AGAIN, WAS THE INAPPLICABILITY OF THE
PROVISION'S CENTRAL THEME, THE PROTECTION OF NEUTRALS AGAINST SECONDARY
PRESSURE, WHERE THE SECONDARY EMPLOYER AGAINST WHOM THE UNION'S
PRESSURE IS DIRECTED HAS ENTANGLED HIMSELF IN THE VORTEX OF THE PRIMARY
DISPUTE.  "THE UNION WAS NOT EXTENDING ITS ACTIVITY TO A FRONT REMOTE
FROM THE IMMEDIATE DISPUTE BUT TO ONE INTIMATELY AND INDEED
INEXTRICABLY UNITED TO IT."  DOUDS V. METROPOLITAN FEDERATION OF
ARCHITECTS, 75 F. SUPP. 672, 677 (D.C.S.D.N.Y. 1948); SEE LABOR BOARD
V. BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS, 228 F.2D 553 (C.A. 2D
CIR. 1955).  WE SUMMARIZED OUR READING OF SEC. 8(B)(4)(A) JUST A YEAR
BEFORE ENACTMENT OF SEC. 8(E): 

"IT AIMED TO RESTRICT THE AREA OF INDUSTRIAL CONFLICT INSOFAR AS THIS
COULD BE ACHIEVED BY PROHIBITING THE MOST OBVIOUS, WIDESPREAD, AND, AS
CONGRESS EVIDENTLY JUDGED, DANGEROUS PRACTICE OF UNIONS TO WIDEN THAT
CONFLICT:  THE COERCION OF NEUTRAL EMPLOYERS, THEMSELVES NOT CONCERNED
WITH A PRIMARY LABOR DISPUTE, THROUGH THE INDUCEMENT OF THEIR EMPLOYEES
TO ENGAGE IN STRIKES OR CONCERTED REFUSALS TO HANDLE GOODS."  LOCAL
1976, UNITED BROTHERHOOD OF CARPENTERS V. LABOR BOARD (SAND DOOR), 357
U.S. 93, 100. 

DESPITE THIS VIRTUALLY OVERWHELMING SUPPORT FOR THE LIMITED READING
OF SEC. 8(B)(4)(A), THE WOODWORK MANUFACTURERS ASSOCIATION RELIES ON
ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, 325 U.S. 797, AS REQUIRING THAT
THE SUCCESSOR SECTION, SEC. 8(B)(4)(B), BE READ AS PROSCRIBING THE
DISTRICT COUNCIL'S CONDUCT IN ENFORCING THE "WILL NOT HANDLE" SENTENCE
OF RULE 17 AGAINST FROUGE.  THE ASSOCIATION POINTS TO THE REFERENCES TO
ALLEN BRADLEY IN THE LEGISLATIVE DEBATES LEADING TO THE ENACTMENT OF
THE PREDECESSOR SEC. 8(B)(4)(A).  WE THINK THAT THIS IS AN ERRONEOUS
READING OF THE LEGISLATIVE HISTORY.  ALLEN BRADLEY HELD VIOLATIVE OF
THE ANTITRUST LAWS A COMBINATION BETWEEN LOCAL 3 OF THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS AND BOTH ELECTRICAL CONTRACTORS AND
MANUFACTURERS OF ELECTRICAL FIXTURES IN NEW YORK CITY TO RESTRAIN THE
BRINGING IN OF SUCH EQUIPMENT FROM OUTSIDE THE CITY.  THE CONTRACTORS
OBLIGATED THEMSELVES TO CONFINE THEIR PURCHASES TO LOCAL MANUFACTURERS,
WHO IN TURN OBLIGATED THEMSELVES TO CONFINE THEIR NEW YORK CITY SALES
TO CONTRACTORS EMPLOYING MEMBERS OF THE LOCAL, AND THIS SCHEME WAS
SUPPORTED BY THREAT OF BOYCOTT BY THE CONTRACTORS' EMPLOYEES.  WHILE
RECOGNIZING THAT THE UNION MIGHT HAVE HAD AN IMMUNITY FOR ITS
CONTRIBUTION TO THE TRADE BOYCOTT HAD IT ACTED ALONE, CITING HUTCHESON,
SUPRA, THE COURT HELD IMMUNITY WAS NOT INTENDED BY THE CLAYTON OR
NORRIS-LAGUARDIA ACTS IN CASES IN WHICH THE UNION'S ACTIVITY WAS PART
OF A LARGER CONSPIRACY TO ABET CONTRACTORS AND MANUFACTURERS TO CREATE
A MONOPOLY. 

THE ARGUMENT THAT THE REFERENCES TO ALLEN BRADLEY IN THE DEBATES OVER
SEC. 8(B)(4)(A) HAVE BROADER SIGNIFICANCE IN THE DETERMINATION OF THE
REACH OF THAT SECTION IS THAT THERE WAS NO INTENT ON LOCAL 3'S PART TO
INFLUENCE THE INTERNAL LABOR POLICIES OF THE BOYCOTTED OUT-OF-STATE
MANUFACTURERS OF ELECTRICAL EQUIPMENT.  THERE ARE THREE ANSWERS TO THIS
ARGUMENT:  FIRST, THE BOYCOTT OF OUT-OF-STATE ELECTRICAL EQUIPMENT BY
THE ELECTRICAL CONTRACTORS' EMPLOYEES WAS NOT IN PURSUANCE OF ANY
OBJECTIVE RELATING TO PRESSURING THEIR EMPLOYERS IN THE MATTER OF THEIR
WAGES, HOURS, AND WORKING CONDITIONS; THERE WAS NO WORK PRESERVATION OR
OTHER PRIMARY OBJECTIVE RELATED TO THE UNION EMPLOYEES' RELATIONS WITH
THEIR CONTRACTOR EMPLOYERS.  ON THE CONTRARY, THE OBJECT OF THE BOYCOTT
WAS TO SECURE BENEFITS FOR THE NEW YORK CITY ELECTRICAL MANUFACTURERS
AND THEIR EMPLOYEES.  "THIS IS A SECONDARY OBJECT BECAUSE THE CESSATION
OF BUSINESS WAS BEING USED TACTICALLY WITH AN EYE TO ITS EFFECT ON
CONDITIONS ELSEWHERE."  (FN17)  SECOND, AND OF EVEN GREATER
SIGNIFICANCE ON THE QUESTION OF THE INFERENCES TO BE DRAWN FROM THE
REFERENCES TO ALLEN BRADLEY, SENATOR TAFT REGARDED THE LOCAL 3 BOYCOTT
AS IN EFFECT SAYING, "WE WILL NOT PERMIT ANY MATERIAL MADE BY ANY OTHER
UNION OR BY ANY NONUNION WORKERS TO COME INTO NEW YORK CITY AND BE PUT
INTO ANY BUILDING IN NEW YORK CITY."  93 CONG. REC. 4199, II 1947 LEG. 
HIST.  1107.  THIS CLEARLY SHOWS THAT THE SENATOR VIEWED THE PRESSURES
APPLIED BY LOCAL 3 ON THE EMPLOYERS OF ITS MEMBERS AS HAVING SOLELY A
SECONDARY OBJECTIVE.  THE SENATE COMMITTEE REPORT ECHOES THE SAME
VIEW: 

"IT IS AN UNFAIR LABOR PRACTICE FOR A UNION TO ENGAGE IN THE TYPE OF
SECONDARY BOYCOTT THAT HAS BEEN CONDUCTED IN NEW YORK CITY BY LOCAL NO.
3 OF THE IBEW, WHEREBY ELECTRICIANS HAVE REFUSED TO INSTALL ELECTRICAL
PRODUCTS OF MANUFACTURERS EMPLOYING ELECTRICIANS WHO ARE MEMBERS OF
SOME LABOR ORGANIZATION OTHER THAN LOCAL NO. 3."  S. REP. NO. 105, 80TH
CONG., 1ST SESS., 22, I 1947 LEG.  HIST.  428. 

OTHER STATEMENTS ON THE FLOOR OF CONGRESS REPEAT THE SAME REFRAIN. 
(FN18)  THIRD, EVEN ON THE PREMISE THAT CONGRESS MEANT TO PROHIBIT
BOYCOTTS SUCH AS THAT IN ALLEN BRADLEY WITHOUT REGARD TO WHETHER THEY
WERE CARRIED ON TO AFFECT LABOR CONDITIONS ELSEWHERE, THE FACT IS THAT
THE BOYCOTT IN ALLEN BRADLEY WAS CARRIED ON, NOT AS A SHIELD TO
PRESERVE THE JOBS OF LOCAL 3 MEMBERS, TRADITIONALLY A PRIMARY LABOR
ACTIVITY, BUT AS A SWORD, TO REACH OUT AND MONOPOLIZE ALL THE
MANUFACTURING JOB TASKS FOR LOCAL 3 MEMBERS.  IT IS ARGUABLE THAT
CONGRESS MAY HAVE VIEWED THE USE OF THE BOYCOTT AS A SWORD AS DIFFERENT
FROM LABOR'S TRADITIONAL CONCERNS WITH WAGES, HOURS, AND WORKING
CONDITIONS.  BUT THE BOYCOTT IN THE PRESENT CASES WAS NOT USED AS A
SWORD; IT WAS A SHIELD CARRIED SOLELY TO PRESERVE THE MEMBERS' JOBS. 
WE THEREFORE HAVE NO OCCASION TODAY TO DECIDE THE QUESTIONS WHICH MIGHT
ARISE WHERE THE WORKERS CARRY ON A BOYCOTT TO REACH OUT TO MONOPOLIZE
JOBS OR ACQUIRE NEW JOB TASKS WHEN THEIR OWN JOBS ARE NOT THREATENED BY
THE BOYCOTTED PRODUCT.  (FN19) 

IT IS TRUE THAT THE HOUSE BILL PROPOSED TO AMEND THE CLAYTON ACT TO
NARROW LABOR'S IMMUNITY FROM THE ANTITRUST LAWS.  H.R. 3020, SEC.
301(B), I 1947 LEG.  HIST.  220.  THIS WAS OMITTED FROM THE CONFERENCE
AGREEMENT.  IT IS SUGGESTED THAT THIS HISTORY EVIDENCES THAT CONGRESS
MEANT SEC. 8(B)(4)(A) TO REACH ALL PRODUCT BOYCOTTS WITH WORK
PRESERVATION MOTIVES.  THE ARGUMENT IS PREMISED ON A STATEMENT BY THE
HOUSE MANAGERS IN THE HOUSE CONFERENCE REPORT THAT "SINCE THE MATTERS
DEALT WITH IN THIS SECTION HAVE TO A LARGE MEASURE BEEN EFFECTUATED
THROUGH THE USE OF BOYCOTTS, AND SINCE THE CONFERENCE AGREEMENT
CONTAINS EFFECTIVE PROVISIONS DIRECTLY DEALING WITH BOYCOTTS
THEMSELVES, THIS PROVISION IS OMITTED FROM THE CONFERENCE AGREEMENT." 
H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., 65, I 1947 LEG.  HIST.
569.  THE STATEMENT IS HARDLY PROBATIVE THAT SEC. 8(B)(4)(A) ENACTED A
BROAD PROHIBITION IN FACE OF THE OVERWHELMING EVIDENCE THAT ITS SENATE
SPONSORS INTENDED THE NARROWER REACH.  ACTUALLY THE STATEMENT AT BEST
REFLECTS THAT THE HOUSE MAY HAVE RECEDED FROM A BROADER POSITION AND
ACCEPTED THAT OF THE SENATE.  FOR SEC. 8(B)(4)(A) CONSTITUTED THE
"EFFECTIVE PROVISIONS" REFERRED TO AND THE HOUSE MANAGERS'
UNDERSTANDING OF AND AGREEMENT WITH THE REACH OF THE SECTION AS
INTENDED BY ITS SENATE SPONSORS IS EXPRESSED AT PAGE 43 OF THE SAME
REPORT, I 1947 LEG.  HIST. 547: 

"UNDER CLAUSE (A) STRIKES OR BOYCOTTS, OR ATTEMPTS TO INDUCE OR
ENCOURAGE SUCH ACTION, WERE MADE UNFAIR LABOR PRACTICES IF THE PURPOSE
WAS TO FORCE AN EMPLOYER OR OTHER PERSON TO CEASE USING, SELLING,
HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF
ANOTHER, OR TO CEASE DOING BUSINESS WITH ANY OTHER PERSON.  THUS IT WAS
MADE AN UNFAIR LABOR PRACTICE FOR A UNION TO ENGAGE IN A STRIKE AGAINST
EMPLOYER A FOR THE PURPOSE OF FORCING THAT EMPLOYER TO CEASE DOING
BUSINESS WITH EMPLOYER B. SIMILARLY IT WOULD NOT BE LAWFUL FOR A UNION
TO BOYCOTT EMPLOYER A BECAUSE EMPLOYER A USES OR OTHERWISE DEALS IN THE
GOODS OF, OR DOES BUSINESS WITH, EMPLOYER B." 

IN EFFECT CONGRESS, IN ENACTING SEC. 8(B)(4)(A) OF THE ACT, RETURNED
TO THE REGIME OF DUPLEX PRINTING PRESS CO. AND BEDFORD CUT STONE CO.,
SUPRA, AND BARRED AS A SECONDARY BOYCOTT UNION ACTIVITY DIRECTED
AGAINST A NEUTRAL EMPLOYER, INCLUDING THE IMMEDIATE EMPLOYER WHEN IN
FACT THE ACTIVITY DIRECTED AGAINST HIM WAS CARRIED ON FOR ITS EFFECT
ELSEWHERE. 

INDEED, CONGRESS IN REWRITING SEC. 8(B)(4)(A) AS SEC. 8(B)(4)(B) TOOK
PAINS TO CONFIRM THE LIMITED APPLICATION OF THE SECTION TO SUCH
"SECONDARY" CONDUCT.  THE WORD "CONCERTED" IN FORMER SEC. 8(B)(4) WAS
DELETED TO REACH SECONDARY CONDUCT DIRECTED TO ONLY ONE INDIVIDUAL. 
THIS WAS IN RESPONSE TO THE COURT'S HOLDING IN LABOR BOARD V.
INTERNATIONAL RICE MILLING CO., 341 U.S. 665, THAT "CONCERTED" REQUIRED
PROOF OF INDUCEMENT OF TWO OR MORE EMPLOYEES.  BUT TO MAKE CLEAR THAT
THE DELETION WAS NOT TO BE READ AS SUPPORTING A CONSTRUCTION OF THE
STATUTE AS PROHIBITING THE INCIDENTAL EFFECTS OF TRADITIONAL PRIMARY
ACTIVITY, CONGRESS ADDED THE PROVISO THAT NOTHING IN THE AMENDED
UNLAWFUL, ANY PRIMARY STRIKE OR PRIMARY PICKETING."  (FN20)  MANY
STATEMENTS AND EXAMPLES PROFFERED IN THE 1959 DEBATES CONFIRM THIS
CONGRESSIONAL ACCEPTANCE OF THE DISTINCTION BETWEEN PRIMARY AND
SECONDARY ACTIVITY.  (FN21)

                                       II. 

THE LANDRUM-GRIFFIN ACT AMENDMENTS IN 1959 WERE ADOPTED ONLY TO CLOSE
VARIOUS LOOPHOLES IN THE APPLICATION OF SEC. 8(B)(4)(A) WHICH HAD BEEN
EXPOSED IN BOARD AND COURT DECISIONS.  WE DISCUSSED SOME OF THESE
LOOPHOLES, AND THE PARTICULAR AMENDMENTS ADOPTED TO CLOSE THEM, IN
LABOR BOARD V. SERVETTE, INC., 377 U.S. 46, 51-54.  WE NEED NOT REPEAT
THAT DISCUSSION HERE, EXCEPT TO EMPHASIZE, AS WE THERE SAID, THAT
"THESE CHANGES DID NOT EXPAND THE TYPE OF CONDUCT WHICH SEC. 8(B)(4)(A)
CONDEMNED, THAT IS, UNION PRESSURES CALCULATED TO INDUCE THE EMPLOYEES
OF A SECONDARY EMPLOYER TO WITHHOLD THEIR SERVICES IN ORDER TO FORCE
THEIR EMPLOYER TO CEASE DEALING WITH THE PRIMARY EMPLOYER."  ID., AT 52
53.    SECTION 8(E) SIMPLY CLOSED STILL ANOTHER LOOPHOLE.  (FN22)  IN
LOCAL 1976, UNITED BROTHERHOOD OF CARPENTERS V. LABOR BOARD (SAND
DOOR), 357 U.S. 93, THE COURT HELD THAT IT WAS NO DEFENSE TO AN UNFAIR
LABOR PRACTICE CHARGE UNDER SEC. 8(B)(4)(A) THAT THE STRUCK EMPLOYER
HAD AGREED, IN A CONTRACT WITH THE UNION, NOT TO HANDLE NONUNION
MATERIAL.  HOWEVER, THE COURT EMPHASIZED THAT THE MERE EXECUTION OF
SUCH A CONTRACT PROVISION (KNOWN AS A "HOT CARGO" CLAUSE BECAUSE OF ITS
PREVALENCE IN TEAMSTERS UNION CONTRACTS), OR ITS VOLUNTARY OBSERVANCE
BY THE EMPLOYER, WAS NOT UNLAWFUL UNDER SEC. 8(B)(4)(A).  SECTION 8(E)
WAS DESIGNED TO PLUG THIS GAP IN THE LEGISLATION BY MAKING THE "HOT
CARGO" CLAUSE ITSELF UNLAWFUL.  THE SAND DOOR DECISION WAS BELIEVED BY
CONGRESS NOT ONLY TO CREATE THE POSSIBILITY OF DAMAGE ACTIONS AGAINST
EMPLOYERS FOR BREACHES OF "HOT CARGO" CLAUSES, BUT ALSO TO CREATE A
SITUATION IN WHICH SUCH CLAUSES MIGHT BE EMPLOYED TO EXERT SUBTLE
PRESSURES UPON EMPLOYERS TO ENGAGE IN "VOLUNTARY" BOYCOTTS.  (FN23)
HEARINGS IN LATE 1958 BEFORE THE SENATE SELECT COMMITTEE EXPLORED SEVEN
CASES OF "HOT CARGO" CLAUSES IN TEAMSTERS UNION CONTRACTS, THE USE OF
WHICH THE COMMITTEE FOUND CONSCRIPTED NEUTRAL EMPLOYERS IN TEAMSTERS
ORGANIZATIONAL CAMPAIGNS.  (FN24) 

THIS LOOPHOLE-CLOSING MEASURE LIKEWISE DID NOT EXPAND THE TYPE OF
CONDUCT WHICH SEC 8(B)(4)(A) CONDEMNED.  ALTHOUGH THE LANGUAGE OF SEC.
8(E) IS SWEEPING, IT CLOSELY TRACKS THAT OF SEC. 8(B)(4)(A), AND JUST
AS THE LATTER AND ITS SUCCESSOR SEC. 8(B)(4)(B) DID NOT REACH
EMPLOYEES' ACTIVITY TO PRESSURE THEIR EMPLOYER TO PRESERVE FOR
THEMSELVES WORK TRADITIONALLY DONE BY THEM, SEC. 8(E) DOES NOT PROHIBIT
AGREEMENTS MADE AND MAINTAINED FOR THAT PURPOSE. 

THE LEGISLATIVE HISTORY OF SEC. 8(E) CONFIRMS THIS CONCLUSION.  THE
KENNEDY-ERVIN BILL AS ORGINALLY REPORTED PROPOSED NO REMEDY FOR ABUSES
OF THE "HOT CARGO" CLAUSES REVEALED AT THE HEARINGS OF THE SELECT
COMMITTEE.  SENATORS GOLDWATER AND DIRKSEN FILED A MINORITY REPORT
URGING THAT A PROHIBITION AGAINST "HOT CARGO" CLAUSES SHOULD BE ENACTED
TO CLOSE THAT LOOPHOLE.  THEIR STATEMENT EXPRESSLY ACKNOWLEDGED THEIR
ACCEPTANCE OF THE READING OF SEC. 8(B)(4)(A) AS APPLICABLE ONLY "TO
PROTECT GENUINELY NEUTRAL EMPLOYERS AND THEIR EMPLOYEES, NOT THEMSELVES
INVOLVED IN A LABOR DISPUTE, AGAINST ECONOMIC COERCION DESIGNED TO GIVE
A LABOR UNION VICTORY IN A DISPUTE WITH SOME OTHER EMPLOYER."  (FN25)
THEY ARGUED THAT A PROHIBITION AGAINST "HOT CARGO" CLAUSES WAS
NECESSARY TO FURTHER THAT OBJECTIVE.  THEY WERE JOINED BY SENATOR
MCCLELLAN, CHAIRMAN OF THE SELECT COMMITTEE, IN THEIR PROPOSAL TO ADD
SUCH A PROVISION.  THEIR STATEMENTS IN SUPPORT CONSISTENTLY DEFINED THE
EVIL TO BE PREVENTED IN TERMS OF AGREEMENTS WHICH OBLIGATED NEUTRAL
EMPLOYERS NOT TO DO BUSINESS WITH OTHER EMPLOYERS INVOLVED IN LABOR
DISPUTES WITH THE UNION.  (FN26)  SENATOR GORE INITIALLY PROPOSED, AND
THE SENATE FIRST PASSED, A "HOT CARGO" AMENDMENT TO THE KENNEDY-ERVIN
BILL WHICH OUTLAWED SUCH AGREEMENTS ONLY FOR "COMMON CARRIERS SUBJECT
TO PART II OF THE INTERSTATE COMMERCE ACT."  THIS REFLECTED THE
TESTIMONY AT THE SELECT COMMITTEE HEARINGS WHICH ATTRIBUTED ABUSES OF
SUCH CLAUSES PRIMARILY TO THE TEAMSTERS UNION.  SIGNIFICANTLY, SUCH
ALLEGED ABUSES BY THE TEAMSTERS INVARIABLY INVOLVED USES OF THE CLAUSE
TO PRESSURE NEUTRAL TRUCKING EMPLOYERS NOT TO HANDLE GOODS OF OTHER
EMPLOYERS INVOLVED IN DISPUTES WITH THE TEAMSTERS UNION.  (FN27) 

THE HOUSE LABOR COMMITTEE FIRST REPORTED OUT A BILL CONTAINING A
PROVISION SUBSTANTIALLY IDENTICAL TO THE GORE AMENDMENT.  (FN28) THE
HOUSE REPORT EXPRESSLY NOTED THAT SINCE THAT PROPOSAL TRACKED THE
LANGUAGE OF SEC. 8(B)(4)(A) "IT PRESERVED THE ESTABLISHED DISTINCTION
BETWEEN PRIMARY ACTIVITIES AND SECONDARY BOYCOTTS."  (FN29)  THE
SUBSTITUTE LANDRUM-GRIFFIN BILL, HOWEVER, EXPANDED THE PROPOSAL TO
COVER ALL INDUSTRY AND NOT COMMON CARRIERS ALONE.  H.R. 8400, SEC.
705(B)(1) IN I 1959 LEG.  HIST.  683. REPRESENTATIVE LANDRUM STATED, "I
SUBMIT IF SUCH CONTRACTS ARE BAD IN ONE SEGMENT OF OUR ECONOMY, THEY
ARE UNDESIRABLE IN ALL SEGMENTS."  105 CONG. REC. 14343, II 1959 LEG. 
HIST.  1518.  IN DESCRIBING THE SUBSTITUTE BILL, REPRESENTATIVE LANDRUM
POINTEDLY SPOKE OF THE SITUATION "WHERE THE UNION, IN A DISPUTE WITH
ONE EMPLOYER, PUTS PRESSURE UPON ANOTHER EMPLOYER OR HIS EMPLOYEES, IN
ORDER TO FORCE THE SECOND EMPLOYER OR HIS EMPLOYEES, TO STOP DOING
BUSINESS WITH THE FIRST EMPLOYER, AND 'BEND HIS KNEE TO THE UNION'S
WILL.'"  IBID.  AN ANALYSIS OF THE SUBSTITUTE BILL SUBMITTED BY
REPRESENTATIVE GRIFFIN REFERRED TO THE NEED TO PLUG THE VARIOUS
LOOPHOLES IN THE "SECONDARY BOYCOTT" PROVISIONS, ONE OF WHICH IS THE
"HOT CARGO" AGREEMENT.  (FN30)  IN CONFERENCE COMMITTEE, THE LANDRUM
GRIFFIN APPLICATION TO ALL INDUSTRY, AND NOT JUST TO COMMON CARRIERS,
WAS ADOPTED. 

HOWEVER, PROVISOS WERE ADDED TO SEC. 8(E) TO PRESERVE THE STATUS QUO
IN THE CONSTRUCTION INDUSTRY, AND EXEMPT THE GARMENT INDUSTRY FROM THE
PROHIBITIONS OF SECS. 8(E) AND 8(B)(4)(B).  THIS ACTION OF THE CONGRESS
IS STRONG CONFIRMATION THAT CONGRESS MEANT THAT BOTH SECS. 8(E) AND
8(B)(4)(B) REACH ONLY SECONDARY PRESSURES.  IF THE BODY OF SEC. 8(E)
APPLIES ONLY TO SECONDARY ACTIVITY, THE GARMENT INDUSTRY PROVISO IS A
JUSTIFIABLE EXCEPTION WHICH ALLOWS WHAT THE LEGISLATIVE HISTORY SHOWS
IT WAS DESIGNED TO ALLOW, SECONDARY PRESSURES TO COUNTERACT THE EFFECTS
OF SWEATSHOP CONDITIONS IN AN INDUSTRY WITH A HIGHLY INTEGRATED PROCESS
OF PRODUCTION BETWEEN JOBBERS, MANUFACTURERS, CONTRACTORS AND
SUBCONTRACTORS.  (FN31)  FIRST, THIS MOTIVATION FOR THE PROVISO SHEDS
LIGHT ON THE CENTRAL THEME OF THE BODY OF SEC. 8(E), TO WHICH THE
PROVISO IS AN EXCEPTION.  SECOND, IF THE BODY OF THAT PROVISION AND
SEC. 8(B)(4)(B) WERE CONSTRUED TO PROHIBIT PRIMARY AGREEMENTS AND THEIR
MAINTENANCE, SUCH AS THOSE CONCERNING WORK PRESERVATION, THE PROVISO
WOULD HAVE THE HIGHLY UNLIKELY EFFECT, UNJUSTIFIED IN ANY OF THE
STATUTE'S HISTORY, OF PERMITTING GARMENT WORKERS, BUT GARMENT WORKERS
ONLY, TO PRESERVE THEIR JOBS AGAINST SUBCONTRACTING OR PREFABRICATION
BY SUCH AGREEMENTS AND BY STRIKES AND BOYCOTTS TO ENFORCE THEM. 
SIMILARLY, THE CONSTRUCTION INDUSTRY PROVISO, WHICH PERMITS "HOT CARGO"
AGREEMENTS ONLY FOR JOBSITE WORK, WOULD HAVE THE CURIOUS AND
UNSUPPORTED RESULT OF ALLOWING THE CONSTURCTION WORKER TO MAKE
AGREEMENTS PRESERVING HIS TRADITIONAL TASKS AGAINST JOBSITE
PREFABRICATION AND SUBCONTRACTING, BUT NOT AGAINST NONJOBSITE
PREFABRICATION AND SUBCONTRACTING.  ON THE OTHER HAND, IF THE HEART OF
SEC. 8(E) IS CONSTRUED TO BE DIRECTED ONLY TO SECONDARY ACTIVITIES, THE
CONSTRUCTION PROVISO BECOMES, AS IT WAS INTENDED TO BE, A MEASURE
DESIGNED TO ALLOW AGREEMENTS PERTAINING TO CERTAIN SECONDARY ACTIVITIES
ON THE CONSTRUCTION SITE BECAUSE OF THE CLOSE COMMUNITY OF INTERESTS
THERE, (FN32) BUT TO BAN SECONDARY-OBJECTIVE AGREEMENTS CONCERNING
NONJOBSITE WORK, IN WHICH RESPECT THE CONSTRUCTION INDUSTRY IS NO
DIFFERENT FROM ANY OTHER.  THE PROVISOS ARE THEREFORE SUBSTANTIAL
PROBATIVE SUPPORT THAT PRIMARY WORK PRESERVATION AGREEMENTS WERE NOT TO
BE WITHIN THE BAN OF SEC. 8(E).  (FN33) 

THE ONLY MENTION OF A BROADER REACH FOR SEC. 8(E) APPEARS IN ISOLATED
STATEMENTS BY OPPONENTS OF THAT PROVISION, EXPRESSING FEARS THAT WORK
PRESERVATION AGREEMENTS WOULD BE BANNED.  (FN34)  THESE STATEMENTS HAVE
SCANT PROBATIVE VALUE AGAINST THE BACKDROP OF THE STRONG EVIDENCE TO
THE CONTRARY.  TOO, "WE HAVE OFTEN CAUTIONED AGAINST THE DANGER, WHEN
INTERPRETING A STATUTE, OF RELIANCE UPON THE VIEWS OF ITS LEGISLATIVE
OPPONENTS.  IN THEIR ZEAL TO DEFEAT A BILL, THEY UNDERSTANDABLY TEND TO
OVERSTATE ITS REACH."  LABOR BOARD V. FRUIT & VEGETABLE PACKERS, 377
U.S. 58, 66.  "IT IS THE SPONSORS THAT WE LOOK TO WHEN THE MEANING OF
THE STATUTORY WORDS IS IN DOUBT."  SCHWEGMANN BROS.  V. CALVERT
DISTILLERS CORP., 341 U.S. 384, 394-395.  SEE MASTRO PLASTICS CORP. V.
LABOR BOARD, 350 U.S. 270, 288. 

IN ADDITION TO ALL ELSE, "THE SILENCE OF THE SPONSORS OF THE
AMENDMENTS IS PREGNANT WITH SIGNIFICANCE  ...  ."  LABOR BOARD V. FRUIT
& VEGETABLE PACKERS, SUPRA, AT 66.  BEFORE WE MAY SAY THAT CONGRESS
MEANT TO STRIKE FROM WORKERS' HANDS THE ECONOMIC WEAPONS TRADITIONALLY
USED AGAINST THEIR EMPLOYERS' EFFORTS TO ABOLISH THEIR JOBS, THAT
MEANING SHOULD PLAINLY APPEAR.  "IN THIS ERA OF AUTOMATION AND
ONRUSHING TECHNOLOGICAL CHANGE, NO PROBLEMS IN THE DOMESTIC ECONOMY ARE
OF GREATER CONCERN THAN THOSE INVOLVING JOB SECURITY AND EMPLOYMENT
STABILITY.  BECAUSE OF THE POTENTIALLY CRUEL IMPACT UPON THE LIVES AND
FORTUNES OF THE WORKING MEN AND WOMEN OF THE NATION, THESE PROBLEMS
HAVE UNDERSTANDABLY ENGAGED THE SOLICITOUS ATTENTION OF GOVERNMENT, OF
RESPONSIBLE PRIVATE BUSINESS, AND PARTICULARLY OF ORGANIZED LABOR." 
FIBREBOARD PAPER PRODS.  CORP.  V. LABOR BOARD, 379 U.S. 203, 225
(CONCURRING OPINION OF STEWART, J.).  WE WOULD EXPECT THAT LEGISLATION
CURTAILING THE ABILITY OF MANAGEMENT AND LABOR VOLUNTARILY TO NEGOTIATE
FOR SOLUTIONS TO THESE SIGNIFICANT AND DIFFICULT PROBLEMS WOULD BE
PRECEDED BY EXTENSIVE CONGRESSIONAL STUDY AND DEBATE, AND CONSIDERATION
OF VOLUMINOUS ECONOMIC, SCIENTIFIC, AND STATISTICAL DATA.  THE SILENCE
REGARDING SUCH MATTERS IN THE EIGHTY-SIXTH CONGRESS IS ITSELF EVIDENCE
THAT CONGRESS, IN ENACTING SEC. 8(E), HAD NO THOUGHT OF PROHIBITING
AGREEMENTS DIRECTED TO WORK PRESERVATION.  (FN35)  IN FACT, SINCE THE
ENACTMENT OF SEC. 8(E), THE SUBCOMMITTEE ON EMPLOYMENT AND MANPOWER OF
THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, AND THE SUBCOMMITTEE
ON UNEMPLOYMENT AND THE IMPACT OF AUTOMATION AND THE SELECT
SUBCOMMITTEE ON LABOR OF THE HOUSE COMMITTEE ON EDUCATION AND LABOR
HAVE BEEN EXTENSIVELY STUDYING THE THREATS TO WORKERS POSED BY
INCREASED TECHNOLOGY AND AUTOMATION, (FN36) AND SOME LEGISLATION
DIRECTED TO THE PROBLEM HAS BEEN PASSED.  (FN37)  WE CANNOT LIGHTLY
IMPUTE TO CONGRESS AN INTENT IN SEC. 8(E) TO PRECLUDE LABOR-MANAGEMENT
AGREEMENTS TO EASE THESE EFFECTS THROUGH COLLECTIVE BARGAINING ON THIS
MOST VITAL PROBLEM CREATED BY ADVANCED TECHNOLOGY. 

MOREOVER, OUR DECISION IN FIBREBOARD PAPER PRODS.  CORP., SUPRA,
IMPLICITLY RECOGNIZES THE LEGITIMACY OF WORK PRESERVATION CLAUSES LIKE
THAT INVOLVED HERE.  INDEED, IN THE CIRCUMSTANCES PRESENTED IN
FIBREBOARD, WE HELD THAT BARGAINING ON THE SUBJECT WAS MADE MANDATORY
BY SEC. 8(A)(5) OF THE ACT, CONCERNING AS IT DOES "TERMS AND CONDITIONS
OF EMPLOYMENT," SEC. 8(D).  FIBREBOARD INVOLVED AN ALLEGED REFUSAL TO
BARGAIN WITH RESPECT TO THE CONTRACTING-OUT OF PLANT MAINTENANCE WORK
PREVIOUSLY PERFORMED BY EMPLOYEES IN THE BARGAINING UNIT.  THE COURT
RECOGNIZED THAT THE "TERMINATION OF EMPLOYMENT WHICH  ...  NECESSARILY
RESULTS FROM THE CONTRACTING OUT OF WORK PERFORMED BY MEMBERS OF THE
ESTABLISHED BARGAINING UNIT," SUPRA, AT 210, IS "A PROBLEM OF VITAL
CONCERN TO LABOR AND MANAGEMENT  ...  ," SUPRA, AT 211.  WE FURTHER
NOTED, SUPRA, AT 211-212: 

"INDUSTRIAL EXPERIENCE IS NOT ONLY REFLECTIVE OF THE INTERESTS OF
LABOR AND MANAGEMENT IN THE SUBJECT MATTER BUT IS ALSO INDICATIVE OF
THE AMENABILITY OF SUCH SUBJECTS TO THE COLLECTIVE BARGAINING PROCESS. 
EXPERIENCE ILLUSTRATES THAT CONTRACTING OUT IN ONE FORM OR ANOTHER HAS
BEEN BROUGHT, WIDELY AND SUCCESSFULLY, WITHIN THE COLLECTIVE BARGAINING
FRAMEWORK.  PROVISIONS RELATING TO CONTRACTING OUT EXIST IN NUMEROUS
COLLECTIVE BARGAINING AGREEMENTS, AND 'CONTRACTING OUT WORK IS THE
BASIS OF MANY GRIEVANCES; AND THAT TYPE OF CLAIM IS GRIST IN THE MILLS
OF THE ARBITRATORS.'  UNITED STEELWORKERS V. WARRIOR & GULF NAV. CO.,
363 U.S. 574, 584." 

SEE LOCAL 24, TEAMSTERS UNION V. OLIVER, 358 U.S. 283, 294.  IT WOULD
THEREFORE BE INCONGRUOUS TO INTERPRET SEC. 8(E) TO INVALIDATE CLAUSES
OVER WHICH THE PARTIES MAY BE MANDATED TO BARGAIN AND WHICH HAVE BEEN
SUCCESSFULLY INCORPORATED THROUGH COLLECTIVE BARGAINING IN MANY OF THIS
NATION'S MAJOR LABOR AGREEMENTS. 

FINALLY, IMPORT PARTS OF THE HISTORIC ACCOMMODATION BY CONGRESS OF
THE POWERS OF LABOR AND MANAGEMENT ARE SECS 7 AND 13 OF THE NATIONAL
LABOR RELATIONS ACT, PASSED AS PART OF THE WAGNER ACT IN 1935 AND
AMENDED IN 1947.  THE FORMER SECTION ASSURES TO LABOR "THE RIGHT  ...
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  ...  ." 
FORM, EXCEPT AS SPECIFICALLY PROVIDED IN THE ACT.  IN THE ABSENCE OF
CLEAR INDICIA OF CONGRESSIONAL INTENT TO THE CONTRARY, THESE PROVISIONS
CAUTION AGAINST READING STATUTORY PROHIBITIONS AS EMBRACING EMPLOYEE
ACTIVITIES TO PRESSURE THEIR OWN EMPLOYERS INTO IMPROVING THE
EMPLOYEES' WAGES, HOURS, AND WORKING CONDITIONS.  SEE LABOR BOARD V.
DRIVERS LOCAL UNION, 362 U.S. 274; LABOR BOARD V. INTERNATIONAL RICE
MILLING CO., 341 U.S. 665, 672-673; LABOR BOARD V. DENVER BLDG.  TRADES
COUNCIL, 341 U.S. 675, 687; MASTRO PLASTICS CORP. V. LABOR BOARD,
SUPRA, AT 284, 287. 

THE WOODWORK MANUFACTURERS ASSOCIATION AND AMICI WHO SUPPORT ITS
POSITION ADVANCE SEVERAL REASONS, GROUNDED IN ECONOMIC AND
TECHNOLOGICAL FACTORS, WHY "WILL NOT HANDLE" CLAUSES SHOULD BE INVALID
IN ALL CIRCUMSTANCES.  THOSE ARGUMENTS ARE ADDRESSED TO THE WRONG
BRANCH OF GOVERNMENT.  IT MAY BE "THAT THE TIME HAS COME FOR A RE
EVALUATION OF THE BASIC CONTENT OF COLLECTIVE BARGAINING AS
CONTEMPLATED BY THE FEDERAL LEGISLATION.  BUT THAT IS FOR CONGRESS. 
CONGRESS HAS DEMONSTRATED ITS CAPACITY TO ADJUST THE NATION'S LABOR
LEGISLATION TO WHAT, IN ITS LEGISLATIVE JUDGMENT, CONSTITUTES THE
STATUTORY PATTERN APPROPRIATE TO THE DEVELOPING STATE OF LABOR
RELATIONS IN THE COUNTRY.  MAJOR REVISIONS OF THE BASIC STATUTE WERE
ENACTED IN 1947 AND 1959.  TO BE SURE, THEN, CONGRESS MIGHT BE OF
OPINION THAT GREATER STRESS SHOULD BE PUT ON  ...  ELIMINATING MORE AND
MORE ECONOMIC WEAPONS FROM THE  ...  UNION'S GRASP  ...  .  BUT
CONGRESS' POLICY HAS NOT YET MOVED TO THIS POINT  ...  ."  LABOR BOARD
V. INSURANCE AGENTS' INTERNATIONAL UNION, 361 U.S. 477, 500. 
                       III. 

THE DETERMINATION WHETHER THE "WILL NOT HANDLE" SENTENCE OF RULE 17
AND ITS ENFORCEMENT VIOLATED SEC. 8(E) AND SEC. 8(B)(4)(B) CANNOT BE
MADE WITHOUT AN INQUIRY INTO WHETHER, UNDER ALL THE SURROUNDING
CIRCUMSTANCES,  (FN38)  THE UNION'S OBJECTIVE WAS PRESERVATION OF WORK
FOR FROUGE'S EMPLOYEES, OR WHETHER THE AGREEMENTS AND BOYCOTT WERE
TACTICALLY CALCULATED TO SATISFY UNION OBJECTIVES ELSEWHERE.  WERE THE
LATTER THE CASE, FROUGE, THE BOYCOTTING EMPLOYER, WOULD BE A NEUTRAL
BYSTANDER, AND THE AGREEMENT OR BOYCOTT WOULD, WITHIN THE INTENT OF
CONGRESS, BECOME SECONDARY.  THERE NEED NOT BE AN ACTUAL DISPUTE WITH
THE BOYCOTTED EMPLOYER, HERE THE DOOR MANUFACTURER, FOR THE ACTIVITY TO
FALL WITHIN THIS CATEGORY, SO LONG AS THE TACTICAL OBJECT OF THE
AGREEMENT AND ITS MAINTENANCE IS THAT EMPLOYER, OR BENEFITS TO OTHER
THAN THE BOYCOTTING EMPLOYEES OR OTHER EMPLOYEES OF THE PRIMARY
EMPLOYER THUS MAKING THE AGREEMENT OR BOYCOTT SECONDARY IN ITS AIM. 
(FN39)  THE TOUCHSTONE IS WHETHER THE AGREEMENT OR ITS MAINTENANCE IS
ADDRESSED TO THE LABOR RELATIONS OF THE CONTRACTING EMPLOYER VIS-A-VIS
HIS OWN EMPLOYEES.  (FN40)  THIS WILL NOT ALWAYS BE A SIMPLE TEST TO
APPLY.  (FN41)  BUT "HOWEVER DIFFICULT THE DRAWING OF LINES MORE NICE
THAN OBVIOUS, THE STATUTE COMPELS THE TASK."  LOCAL 761, ELECTRICAL
WORKERS V. LABOR BOARD, 366 U.S. 667, 674. 

THAT THE "WILL NOT HANDLE" PROVISION WAS NOT AN UNFAIR LABOR PRACTICE
IN THESE CASES IS CLEAR.  THE FINDING OF THE TRIAL EXAMINER, ADOPTED BY
THE BOARD, WAS THAT THE OBJECTIVE OF THE SENTENCE WAS PRESERVATION OF
WORK TRADITIONALLY PERFORMED BY THE JOBSITE CARPENTERS.  THIS FINDING
IS SUPPORTED BY SUBSTANTIAL EVIDENCE, AND THEREFORE THE UNION'S MAKING
OF THE "WILL NOT HANDLE" AGREEMENT WAS NOT A VIOLATION OF SEC. 8(E). 

SIMILARLY, THE UNION'S MAINTENANCE OF THE PROVISION WAS NOT A
VIOLATION OF SEC. 8(B)(4)(B).  THE UNION REFUSED TO HANG PREFABRICATED
DOORS WHETHER OR NOT THEY BORE A UNION LABEL, AND EVEN REFUSED TO
INSTALL PREFABRICATED DOORS MANUFACTURED OFF THE JOBSITE BY MEMBERS OF
THE UNION.  THIS AND OTHER SUBSTANTIAL EVIDENCE SUPPORTED THE FINDING
THAT THE CONDUCT OF THE UNION ON THE FROUGE JOBSITE RELATED SOLELY TO
PRESERVATION OF THE TRADITIONAL TASKS OF THE JOBSITE CARPENTERS. 

THE JUDGMENT IS AFFIRMED IN NO. 110, AND REVERSED IN NO. 111.  IT IS
SO ORDERED. 

FN1  THE TEXT OF THESE SECTIONS APPEARS IN THE APPENDIX. 

FN2  THE FULL TEXT OF RULE 17 IS AS FOLLOWS: 

"NO EMPLOYEE SHALL WORK ON ANY JOB ON WHICH CABINET WORK, FIXTURES,
MILLWORK, SASH, DOORS, TRIM OR OTHER DETAILED MILLWORK IS USED UNLESS
THE SAME IS UNION-MADE AND BEARS THE UNION LABEL OF THE UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA.  NO MEMBER OF THIS
DISTRICT COUNCIL WILL HANDLE MATERIAL COMING FROM A MILL WHERE CUTTING
OUT AND FITTING HAS BEEN DONE FOR BUTTS, LOCKS, LETTER PLATES, OR
HARDWARE OF ANY DESCRIPTION, NOR ANY DOORS OR TRANSOMS WHICH HAVE BEEN
FITTED PRIOR TO BEING FURNISHED ON JOB, INCLUDING BASE, CHAIR, RAIL,
PICTURE MOULDING, WHICH HAS BEEN PREVIOUSLY FITTED.  THIS SECTION TO
EXEMPT PARTITION WORK FURNISHED IN SECTIONS."  THE NATIONAL LABOR
RELATIONS BOARD DETERMINED THAT THE FIRST SENTENCE VIOLATED SEC. 8(E),
149 N.L.R.B. 646, 655-656, AND THE UNION DID NOT SEEK JUDICIAL REVIEW
OF THAT DETERMINATION. 

FN3  THERE WERE ALSO CHARGES OF VIOLATION OF SECS. 8(E) AND
8(B)(4)(B) ARISING FROM THE ENFORCEMENT OF THE RULE 17 PROVISION
AGAINST THREE OTHER CONTRACTORS WHOSE CONTRACTS WITH THE OWNERS OF THE
CONSTRUCTION PROJECTS INVOLVED SPECIFIED THAT THE CONTRACTORS SHOULD
FURNISH AND INSTALL PRECUT AND PREFINISHED DOORS.  THE UNION REFUSED TO
PERMIT ITS MEMBERS TO HANG THESE DOORS.  THE BOARD HELD THAT THIS
REFUSAL VIOLATED SEC. 8(B)(4)(B).  THE BOARD REASONED THAT, SINCE THESE
CONTRACTORS (IN CONTRAST TO FROUGE) DID NOT HAVE "CONTROL" OVER THE
WORK THAT THE UNION SOUGHT TO PRESERVE FOR ITS MEMBERS, THE UNION'S
OBJECTIVE WAS SECONDARY - TO COMPEL THE PROJECT OWNERS TO STOP
SPECIFYING PRECUT DOORS IN THEIR CONTRACTS WITH THE EMPLOYER
CONTRACTORS.  149 N.L.R.B., AT 658.  THE UNION PETITIONED THE COURT OF
APPEALS TO SET ASIDE THE REMEDIAL ORDER ISSUED BY THE BOARD ON THIS
FINDING, BUT THE COURT SUSTAINED THE BOARD.  354 F.2D 594, 597.  THE
UNION DID NOT SEEK REVIEW OF THE QUESTION HERE.  NOT BEFORE US,
THEREFORE, IS THE ISSUE ARGUED BY THE AFL-CIO IN ITS BRIEF AMICUS
CURIAE, NAMELY, WHETHER THE BOARD'S "RIGHT-TO-CONTROL DOCTRINE - THAT
EMPLOYEES CAN NEVER STRIKE AGAINST THEIR OWN EMPLOYER ABOUT A MATTER
OVER WHICH HE LACKS THE LEGAL POWER TO GRANT THEIR DEMAND" - IS AN
INCORRECT RULE OF LAW INCONSISTENT WITH THE COURT'S DECISION IN LABOR
BOARD V. INSURANCE AGENTS' INTERNATIONAL UNION, 361 U.S. 477, 497-498. 

FN4  THE STATUTORY LANGUAGE OF SEC. 8(E) IS FAR FROM UNAMBIGUOUS.  IT
PROHIBITS AGREEMENTS TO "CEASE  ...  FROM HANDLING  ...  ANY OF THE
PRODUCTS OF ANY OTHER EMPLOYER  ...  ."  SINCE BOTH THE PRODUCT AND ITS
SOURCE ARE MENTIONED, THE PROVISION MIGHT BE READ NOT TO PROHIBIT AN
AGREEMENT RELATING SOLELY TO THE NATURE OF THE PRODUCT ITSELF, SUCH AS
A WORK-PRESERVATION AGREEMENT, BUT ONLY TO PROHIBIT ONE ARISING FROM AN
OBJECTION TO THE OTHER EMPLOYERS OR A DEFINABLE GROUP OF EMPLOYERS WHO
ARE THE SOURCE OF THE PRODUCT, FOR EXAMPLE, THEIR NONUNION STATUS. 

FN5  LETTER OF JUDGE LEARNED HAND, QUOTED IN LESNICK, THE GRAVAMEN OF
THE SECONDARY BOYCOTT, 62 COL. L. REV. 1363, 1393-1394, N. 155 (1962). 
SEE 2 SUTHERLAND, STATUTORY CONSTRUCTION 321 (HORACK ED. 1943):
"BEFORE THE TRUE MEANING OF THE STATUTE CAN BE DETERMINED CONSIDERATION
MUST BE GIVEN TO THE PROBLEM IN SOCIETY TO WHICH THE LEGISLATURE
ADDRESSED ITSELF, PRIOR LEGISLATIVE CONSIDERATION OF THE PROBLEM, THE
LEGISLATIVE HISTORY OF THE STATUTE UNDER LITIGATION, AND TO THE
OPERATION AND ADMINISTRATION OF THE STATUTE PRIOR TO LITIGATION." 

FN6  SEE LOEWE V. LAWLOR, 208 U.S. 274, AND 235 U.S. 522 (DANBURY
HATTERS' CASE).  THE HISTORY OF THIS DEVELOPMENT UNDER THE SHERMAN ACT
IS TRACED IN DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443; ALLEN
BRADLEY CO. V. LOCAL UNION NO. 3, 325 U.S. 797, 800-803.  SEE GENERALLY
BERMAN, LABOR AND THE SHERMAN ACT (1930).  COLLECTIVE ACTIVITY WAS ALSO
BEING RESTRAINED THROUGH THE DOCTRINE OF "MALICIOUS COMBINATION."  SEE
DUPLEX PRINTING PRESS CO. V. DEERING, SUPRA, AT 484-485 (BRANDEIS, J.,
DISSENTING); SEE GENERALLY LAIDLER, BOYCOTTS AND THE LABOR STRUGGLE 189
194 (1914). 

FN7  PAINTERS DISTRICT COUNCIL V. UNITED STATES, 284 U.S. 582, WHICH
SUMMARILY AFFIRMED 44 F.2D 58, ALSO INVOLVED SECONDARY ACTIVITY WITHIN
THE RUBRIC OF DUPLEX; THE UNION, WHOSE MEMBERS' PRIMARY EMPLOYERS WERE
PAINTING CONTRACTORS, SOUGHT TO "COMPEL MANUFACTURERS TO BRING THEIR
PRODUCTS INTO THE STATE UNFINISHED  ...  ."  44 F.2D, AT 59. 

FN8  SEE LAIDLER, OP. CIT. SUPRA, N. 6, AT 64; CLARK, THE LAW OF THE
EMPLOYMENT OF LABOR 289-290 (1911); OAKES, ORGANIZED LABOR AND
INDUSTRIAL CONFLICTS SEC 408 (1927); FRANKFURTER & GREENE, THE LABOR
INJUNCTION 43 (1930). 

FN9  SECTION 13(C) OF THE NORRIS-LAGUARDIA ACT PROVIDED THAT THE TERM
LABOR DISPUTE AND THUS THE SCOPE OF IMMUNITY "INCLUDES ANY CONTROVERSY
CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING THE
ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING,
MAINTAINING, CHARGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF
EMPLOYMENT, REGARDLESS OF WHETHER OR NOT THE DISPUTANTS STAND IN THE
PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE."  47 STAT. 73. 

FN10  SEE 1 TELLER, LABOR DISPUTES AND COLLECTIVE BARGAINING SEC 145
(1940); BARNARD & GRAHAM, LABOR AND THE SECONDARY BOYCOTT, 15 WASH. L.
REV. 137 (1940); SMITH, COERCION OF THIRD PARTIES IN LABOR DISPUTES -
THE SECONDARY BOYCOTT, 1 LA. L. REV. 277 (1939); HELLERSTEIN, SECONDARY
BOYCOTTS IN LABOR DISPUTES, 47 YALE L.J. 341, 364 (1938). 

FN11  93 CONG. REC. 4198, II LEGISLATIVE HISTORY OF THE LABOR
MANAGEMENT RELATIONS ACT, 1947 (HEREAFTER 1947 LEG.  HIST.), 1106. 

FN12  SEE, E.G., S. REP. NO. 105, 80TH CONG., 1ST SESS., 7, 8, 22,
54, IN I 1947 LEG.  HIST. 413, 414, 428, 460; H.R. CONF. REP. NO. 510,
80TH CONG., 1ST SESS., 43, IN I 1947 LEG.  HIST.  547; 93 CONG. REC.
4131, 4138, 4837-4838, 4843, 4844, 4858, 4859, 4865, 5005, 5011, 5014,
6445-6446, 7537, IN II 1947 LEG.  HIST.  1055, 1068, 1354-1355, 1364,
1365, 1370-1371, 1372-1373, 1383, 1479, 1491, 1497, 1544, 1654.  A
STATEMENT OF SENATOR JAVITS, AN OPPONENT OF THE BILL, AT 93 CONG. REC.
6296, I 1947 LEG.  HIST.  876, THAT MIGHT SUGGEST A BROADER READING WAS
MERELY ONE OF THE "ISOLATED REFERENCES  ...  THAT APPEAR MORE AS ASIDES
IN A DEBATE  ...  ."  LABOR BOARD V. DRIVERS LOCAL UNION, 362 U.S. 274,
286-287. 

FN13  SEE, E.G., 93 CONG. REC. 3424 (REP. HARTLEY), 3432 (REP.
LANDIS), 3449 (REP. BUCK), A1910-A1911 (REP. MEADE), 1844 (SENATOR
MORSE), 3838 (SENATOR TAFT), 5014 (SENATOR BALL), IN I 1947 LEG. 
HIST.  614, 630, 658, 869, AND II 1947 LEG.  HIST.  982, 1012, 1497. 

FN14  SEE ALSO A SIMILAR STATEMENT IN H.R. CONF. REP. NO. 510, SUPRA,
AT 43, I 1947 LEG.  HIST. 547, IN WHICH THE HOUSE MANAGERS LIMIT THE
"BOYCOTTS," REFERRED TO AT 65, I 1947 LEG.  HIST.  569. 

FN15  CF. MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270, 285;
LABOR BOARD V. LION OIL CO., 352 U.S. 282, 288. 

FN16  SEE, E.G., DI GIORGIO FRUIT CORP. V. LABOR BOARD, 89 U.S. APP.
D.C. 155, 191 F.2D 642, CERT. DENIED, 342 U.S. 869 (1951); J.G. ROY &
SONS CO. V. LABOR BOARD, 251 F.2D 771 (C.A. 1ST CIR. 1958); RABOUIN V.
LABOR BOARD, 195 F.2D 906, 912 (C.A. 2D CIR. 1952); PIEZONKI V. LABOR
BOARD, 219 F.2D 879 (C.A. 4TH CIR. 1955); LABOR BOARD V. GENERAL
DRIVERS LOCAL 968, 225 F.2D 205 (C.A. 5TH CIR. 1955), CERT. DENIED, 350
U.S. 914; LOCAL 618, AUTOMOTIVE PETROLEUM EMPLOYEES UNION V. LABOR
BOARD, 249 F.2D 332 (C.A. 8TH CIR. 1957); LABOR BOARD V. LOCAL UNION
NO. 55, 218 F.2D 226 (C.A. 10TH CIR. 1954).  AN OFT-CITED DEFINITION OF
THE CONDUCT BANNED BY SEC. 8(B)(4)(A) WAS THAT OF JUDGE LEARNED HAND IN
INTERNATIONAL BRO. OF ELECTRICAL WORKERS V. LABOR BOARD, 181 F.2D 34,
37:  "THE GRAVAMEN OF A SECONDARY BOYCOTT IS THAT ITS SANCTIONS BEAR,
NOT UPON THE EMPLOYER WHO ALONE IS A PARTY TO THE DISPUTE, BUT UPON
SOME THIRD PARTY WHO HAS NO CONCERN IN IT.  ITS AIM IS TO COMPEL HIM TO
STOP BUSINESS WITH THE EMPLOYER IN THE HOPE THAT THIS WILL INDUCE THE
EMPLOYER TO GIVE IN TO HIS EMPLOYEES' DEMANDS."  FOR THE SCHOLARLY
ACCEPTANCE OF THIS PRIMARY-SECONDARY DICHOTOMY IN THE SCOPE OF SEC.
8(B)(4)(A), SEE KORETZ, FEDERAL REGULATION OF SECONDARY STRIKES AND
BOYCOTTS - A NEW CHAPTER, 37 CORNELL L.Q. 235 (1952); TOWER, A
PERSPECTIVE ON SECONDARY BOYCOTTS, 2 LAB.  L.J. 727 (1951); CUSHMAN,
SECONDARY BOYCOTTS AND THE TAFT-HARTLEY LAW, 6 SYRACUSE L. REV. 109
(1954); LESNICK, THE GRAVAMEN OF THE SECONDARY BOYCOTT, 62 COL. L. REV.
1363 (1962); COX, THE LANDRUM-GRIFFIN AMENDMENTS TO THE NATIONAL LABOR
RELATIONS ACT, 44 MINN. L. REV. 257, 271 (1959); AARON, THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 HARV. L. REV. 1086,
1112 (1960).  FOR THE NLRB'S VACILLATIONS DURING THE PERIOD, SEE
LESNICK, SUPRA, 62 COL. L. REV., AT 1366-1392. 

FN17  LESNICK, JOB SECURITY AND SECONDARY BOYCOTTS:  THE REACH OF
NLRA SECS. 8(B)(4) AND 8(E), 113 U. PA. L. REV. 1000, 1017-1018
(1965). 

IT IS SUGGESTED THAT THE BOYCOTT IN ALLEN BRADLEY IS INDISTINGUISHABLE
FROM THE ACTIVITY TODAY HELD PROTECTED IN HOUSTON INSULATION
CONTRACTORS ASSOCIATION V. LABOR BOARD, POST, P. 664.  THE CRUCIAL
DISTINCTION IS THAT IN HOUSTON INSULATION CONTRACTORS ASSOCIATION THE
BOYCOTT WAS BEING CARRIED OUT TO AFFECT THE LABOR POLICIES OF THE
EMPLOYER OF THE BOYCOTTING EMPLOYEES, THE PRIMARY EMPLOYER, AND NOT, AS
IN ALLEN BRADLEY, FOR ITS EFFECT ELSEWHERE. 

FN18  SEE 93 CONG. REC. 4132 (SENATOR ELLENDER), II 1947 LEG.  HIST. 
1056:  "A SECONDARY BOYCOTT, AS ALL OF US KNOW, IS A CONCERTED ATTEMPT
ON THE PART OF A STRONG UNION TO COMPEL EMPLOYERS TO DEAL WITH THEM,
EVEN THOUGH THE EMPLOYEES OF THAT EMPLOYER DESIRE TO BE REPRESENTED BY
OTHER UNIONS, OR NOT TO BE REPRESENTED AT ALL  ...  .  AN EXAMPLE IS
THE NEW YORK ELECTRICAL WORKERS UNION, THE IBEW."  SEE ALSO STATEMENT
OF SENATOR BALL, 93 CONG. REC. 5011, II 1947 LEG.  HIST.  1491, WHO
DESCRIBED "ONE OF THE WORST SITUATIONS WHICH HAS ARISEN, SUCH AS THAT
IN NEW YORK WHERE A LOCAL OF THE IBEW IS USING THE SECONDARY BOYCOTT TO
MAINTAIN A TIGHT LITTLE MONOPOLY FOR ITS OWN EMPLOYEES, ITS OWN
MEMBERS, AND A FEW EMPLOYERS IN THAT AREA." 

FN19  WE LIKEWISE DO NOT HAVE BEFORE US IN THESE CASES, AND EXPRESS NO
VIEW UPON, THE ANTITRUST LIMITATION, IF ANY, UPON UNION-EMPLOYER WORK
PRESERVATION OR WORK-EXTENSION AGREEMENTS.  SEE UNITED MINE WORKERS V.
PENNINGTON, 381 U.S. 657, 662-665. 

FN20  THE PROVISO WAS ADDED IN THE CONFERENCE COMMITTEE, THE REPORT
OF WHICH STATED ITS PURPOSE TO BE, "TO MAKE IT CLEAR THAT THE CHANGES
IN SECTION 8(B)(4) DO NOT OVERRULE OR QUALIFY THE PRESENT RULES OF LAW
PERMITTING PICKETING AT THE SITE OF A PRIMARY LABOR DISPUTE."  H.R.
CONF. REP. NO. 1147, 86TH CONG., 1ST SESS., 38 (1959), IN I LEGISLATIVE
HISTORY OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959
(HEREAFTER 1959 LEG.  HIST.), 942.  SEE LOCAL 761, ELECTRICAL WORKERS
V. LABOR BOARD, 366 U.S. 667, 681. 

FN21  SEE 105 CONG. REC. 1729-1730, II 1959 LEG.  HIST.  993-994
(REMARKS OF THE SECRETARY OF LABOR, INSERTED INTO THE RECORD BY SENATOR
DIRKSEN); 105 CONG. REC. 3951-3952, 6290, 6667, II 1959 LEG.  HIST.
1007, 1052, 1193-1194 (SENATOR MCCLELLAN); 105 CONG. REC. 6285, II 1959
LEG.  HIST.  1046 (SENATOR ERVIN); 105 CONG. REC. 6300-6301, II 1959
LEG.  HIST.  1059 (SENATOR MUNDT); 105 CONG. REC. 6390, 6428, 17674, II
1959 LEG.  HIST.  1061, 1079, 1386 (SENATOR GOLDWATER); 105 CONG. REC.
6670, 17907-17908, II 1959 LEG.  HIST.  1197. 1440-1441 (SENATOR
CURTIS); 105 CONG. REC. 1426, 15674, II 1959 LEG.  HIST.  1462, 1616
(REP. BOSCH); 105 CONG.  REC. 3926-3927, 3928, II 1959 LEG.  HIST. 
1469-1470, 1471 (REP. LAFORE); 105 CONG. REC.  14343-14344, II 1959
LEG.  HIST.  1518-1519 (REP. LANDRUM); 105 CONG. REC. 14347-14348, II
1959 LEG.  HIST.  1522-1523 (ANALYSIS OF LANDRUM-GRIFFIN BILL INSERTED
INTO THE RECORD BY REP. GRIFFIN); 105 CONG. REC. 15532, II 1959 LEG. 
HIST.  1568 (REP. GRIFFIN); 105 CONG.  REC. 15195, 15544-15545, II 1959
LEG.  HIST.  1543, 1580-1581 (REP. RHODES); 105 CONG. REC.  15529, II
1959 LEG.  HIST.  1565 (REP. SHELLEY); 105 CONG. REC. 15551-15552, II
1959 LEG.  HIST. 1587-1588 (REPORT PREPARED BY REP. ELLIOTT); 105 CONG.
REC. 15688, II 1959 LEG.  HIST. 1630 (REP. RIEHLMAN); 105 CONG. REC.
15691, II 1959 LEG.  HIST.  1633 (REP. ARENDS). 

FN22  THROUGHOUT THE COMMITTEE REPORTS AND DEBATES ON SEC. 8(E), IT
WAS REFERRED TO AS A MEAURE DESIGNED TO CLOSE A LOOPHOLE IN SEC.
8(B)(4)(A) OF THE 1947 ACT.  SEE, E.G., S. REP. NO. 187, 86TH CONG.,
1ST SESS., 78-79, I 1959 LEG.  HIST.  474-475 (1959) (MINORITY VIEWS);
H.R. REP. NO. 741, 86TH CONG., 1ST SESS., 20-21, I 1959 LEG.  HIST. 
778-779. 

FN23  SEE COX, SUPRA, N. 16, AT 272. 

FN24  SEE FINAL REPORT OF THE SENATE SELECT COMMITTEE ON IMPROPER
ACTIVITIES IN THE LABOR OR MANAGEMENT FIELD, S. REP. NO. 1139, 86TH
CONG., 2D SESS., 3 (1960).  THE FINAL REPORT, ORDERED TO BE PRINTED
AFTER ENACTMENT OF THE LANDRUM-GRIFFIN ACT, DEFINED A "HOT CARGO"
CLAUSE AS "AN AGREEMENT BETWEEN A UNION AND A UNIONIZED EMPLOYER THAT
HIS EMPLOYEES SHALL NOT BE REQUIRED TO WORK ON OR HANDLE 'HOT GOODS' OR
'HOT CARGO' BEING MANUFACTURED OR TRANSFERRED BY ANOTHER EMPLOYER WITH
WHOM THE UNION HAS A LABOR DISPUTE OR WHOM THE UNION CONSIDERS AND
LABELS AS BEING UNFAIR TO ORGANIZED LABOR."  IBID. 

FN25  S. REP. NO. 187, 86TH CONG., 1ST SESS., 78, I 1959 LEG.  HIST. 
474.  THE SENATORS EXPLAINED, AT 79, I 1959 LEG.  HIST.  475: 

"HOT-CARGO CLAUSES.  - IT HAS BECOME COMMON TO FIND CLAUSES IN UNION
CONTRACTS WHEREBY THE EMPLOYER AGREES NOT TO HANDLE WHAT THE UNION
CHOOSES TO CALL 'HOT GOODS,' 'UNFAIR MATERIALS,' AND 'BLACKLISTED
PRODUCTS.'  SUCH CLAUSES HAVE BECOME STANDARD IN CONTRACTS ENTERED INTO
BY THE TEAMSTERS UNION.  HERE, EMPLOYER A, WHO HAS A DISPUTE WITH A
UNION OR WHOSE EMPLOYEES ARE BEING SOLICITED FOR UNION MEMBERSHIP, IS
IN REAL TROUBLE.  HE MAY HAVE CUSTOMERS WAITING FOR HIS PRODUCT OR HE
MAY HAVE SUPPLIERS EAGER TO SEND HIM RAW MATERIAL, BUT BOTH HIS
DELIVERY OF PRODUCTS AND SUPPLY OF RAW MATERIAL CANNOT MOVE FROM OR TO
HIS PLACE OF BUSINESS BECAUSE THE CARRIERS IN EITHER INSTANCE HAVE 'HOT
CARGO' CLAUSES IN THEIR CONTRACTS WITH THE TEAMSTERS UNION.  HIS
ALTERNATIVE IS ...  TO GO OUT OF BUSINESS OR YIELD TO THE UNION'S
DEMAND, WHICH OFTEN IS A DEMAND FOR A COMPULSORY MEMBERSHIP CONTRACT
WITH A UNION WHICH HIS EMPLOYEES DO NOT WANT." 

FN26  SEE STATEMENTS OF THESE SENATORS, CITED N. 21, SUPRA.  BOTH
SENATORS DIRKSEN AND MCCLELLAN INTRODUCED UNSUCCESSFUL "HOT CARGO"
LEGISLATION IN SUBSTANTIALLY THE SAME TERMS AS ENACTED IN SEC. 8(E),
105 CONG. REC. 3948, 6411-6412, II 1959 LEG.  HIST.  1007 (SENATOR
MCCLELLAN), 1071 (SENATOR DIRKSEN). 

FN27  SEE, E.G, REMARKS OF SECRETARY OF LABOR MITCHELL INSERTED INTO
THE RECORD BY SENATOR DIRKSEN, 105 CONG. REC. 1730, II 1959 LEG. 
HIST.  993:  "THE TESTIMONY BEFORE THE SELECT COMMITTEE AGAIN AND AGAIN
ILLUSTRATED THE METHOD BY WHICH CERTAIN UNIONS, PARTICULARLY THE
TEAMSTERS, UTILIZED THE INADEQUACIES OF THE PRESENT SECONDARY BOYCOTT
PROVISIONS TO FORCE EMPLOYERS TO DO BUSINESS WITH ONLY THOSE PEOPLE
APPROVED BY UNION OFFICIALS." 

FN28 H.R. 8342, SEC. 705(A)(2)(ELLIOTT BILL), IN I 1959 LEG.  HIST. 
755-757. 

FN29  H.R. REP. NO. 741, 86TH CONG., 1ST SESS., 21, I 1959 LEG. 
HIST.  779. 

FN30  105 CONG. REC. 14347, II 1959 LEG.  HIST.  1522-1523.  REP.
GRIFFIN NOTED THAT THE PRESENT LAW DID NOT "PROHIBIT RESORT TO  ...
SECONDARY ACTIVITY TO FORCE SECONDARY EMPLOYERS TO SIGN CONTRACTS OR
AGREEMENTS NOT TO HANDLE OR TRANSPORT GOODS COMING FROM A SOURCE
CHARACTERIZED BY A UNION AS 'UNFAIR.'" 

FN31  SEE, E.G., 105 CONG. REC. 6668, 17327, II 1959 LEG.  HIST. 
1195, 1377 (SENATOR KENNEDY). 

FN32  SEE ESSEX COUNTY AND VICINITY DIST. COUNCIL OF CARPENTERS V.
LABOR BOARD, 332 F.2D 636 (C.A. 3D CIR. 1964); COMMENT, THE IMPACT OF
THE TAFT-HARTLEY ACT ON THE BUILDING AND CONSTRUCTION INDUSTRY, 60 YALE
L.J. 673, 684-689 (1951). 

FN33  SEE MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270, 285
286, AND CASES THERE CITED. 

FN34  105 CONG. REC. 17884, II 1959 LEG.  HIST.  1428 (SENATOR
MORSE); 105 CONG. REC.  16590, II 1959 LEG.  HIST.  1708 (ANALYSIS OF
"SECONDARY BOYCOTTS AND HOT CARGO CONTRACTS" BY SENATOR KENNEDY AND
REP. THOMPSON).  IT IS SOMEWHAT UNCLEAR WHETHER STATEMENTS BY SENATOR
MCNAMARA AND REPS.  THOMPSON AND KEARNS RESPECTING PLUMBING
PREFABRICATION CLAUSES FOR CONSTRUCTION PROJECTS CONCERNED AGREEMENTS
WITH A PRIMARY OR A SECONDARY OBJECTIVE.  105 CONG. REC. 19785, 19809,
20004-20005, II 1959 LEG.  HIST.  1815, 1816, 1861.  AS DESCRIBED BY
SENATOR MCNAMARA, THE CLAUSE IN QUESTION PERMITTED FABRICATION, SO LONG
AS IT WAS ACCOMPLISHED BY MEMBERS OF A LOCAL UNION OF THE PIPEFITTERS. 
105 CONG. REC.  19785, II 1959 LEG.  HIST.  1815.  MOREOVER, THE
STATEMENTS PURPORTED ONLY TO INDICATE THEIR INTERPRETATION OF THE
CONSTRUCTION INDUSTRY PROVISO.  IN ANY EVENT, THESE STATEMENTS COULD
REPRESENT ONLY THE PERSONAL VIEWS OF THESE LEGISLATORS, SINCE THE
STATEMENTS WERE INSERTED IN THE CONGRESSIONAL RECORD AFTER PASSAGE OF
THE ACT. 

FN35  IN FACT, REP. ALGER INTRODUCED A BILL WHICH WOULD HAVE BANNED
UNION ATTEMPTS TO LIMIT PREFABRICATION OF BUILDING MATERIALS, WHICH
BILL WAS GIVEN NO ATTENTION WHATEVER AND FAILED OF ADOPTION.  105 CONG.
REC. 12137, II 1959 LEG.  HIST.  1508.  THE UNDERSTANDING OF CONGRESS
WITH REGARD TO THAT ISSUE MIGHT HAVE BEEN BEST REFLECTED IN A STATEMENT
ON THE HOUSE FLOOR BY REP. HOLLAND: "WHEN THE LABOR REFORM BILL IS OUT
OF THE WAY - LABOR AND MANAGEMENT COULD, AS THEY EVENTUALLY MUST, SIT
DOWN TOGETHER AND WORK TOWARD A SOLUTION OF OUR MOST SERIOUS PROBLEM -
AUTOMATION - WHICH HAS ALREADY AFFECTED THE EMPLOYMENT PICTURE THROUGH
MORE PRODUCTIVITY AND LESS EMPLOYMENT.  IF ALLOWED TO GO UNCHECKED,
AUTOMATION WILL EVENTUALLY CREATE MANY THOUSANDS OF DISPLACED PERSONS,
AND UNLESS THIS PROBLEM IS PROPERLY WORKED OUT, IT PORTENDS A SERIOUS
THREAT TO OUR NATIONAL ECONOMY."  105 CONG. REC. 13133, II 1959 LEG. 
HIST.  1511. 

FN36  SEE HEARINGS BEFORE THE SUBCOMMITTEE ON EMPLOYMENT AND MANPOWER
OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, 88TH CONG., 1ST
SESS., PTS.  1-9 (1963), 88TH CONG., 2D SESS., PT. 10 (1964), ON THE
NATION'S MANPOWER REVOLUTION (CONCLUDING WITH RECOMMENDATIONS FOR A
NATIONAL COMMISSION ON AUTOMATION AND TECHNOLOGICAL PROGRESS), AND
HEARINGS, 88TH CONG., 1ST SESS. (1963), ON MANPOWER RETRAINING;
HEARINGS BEFORE THE SELECT SUBCOMMITTEE ON LABOR OF THE HOUSE COMMITTEE
ON EDUCATION AND LABOR, 88TH CONG., 2D SESS. (1964), ON H.R. 10310 AND
RELATED BILLS "TO ESTABLISH A NATIONAL COMMISSION ON AUTOMATION AND
TECHNOLOGICAL PROGRESS"; HEARINGS BEFORE THE SUBCOMMITTEE ON
UNEMPLOYMENT AND THE IMPACT OF AUTOMATION OF THE HOUSE COMMITTEE ON
EDUCATION AND LABOR, 87TH CONG., 1ST SESS. (1961), ON H.R. 7373, A
"BILL RELATING TO THE OCCUPATIONAL TRAINING, DEVELOPMENT, AND USE OF
THE MANPOWER RESOURCES OF THE NATION."  SEE STATEMENT IN THESE LATTER
HEARINGS OF THEN SECRETARY OF LABOR, ARTHUR GOLDBERG, AT 3:  "MANY
ACHIEVEMENTS IN ATTEMPTING TO OVERCOME THE DIFFICULTIES CREATED BY
RADICAL TECHNOLOGICAL CHANGE CAN AND SHOULD BE ACCOMPLISHED THROUGH
COLLECTIVE BARGAINING AND JOINT LABOR-MANAGEMENT EFFORTS.  MUCH HAS
BEEN ACHIEVED THROUGH SUCH EFFORTS IN RECENT YEARS.  EVEN GREATER
CONCENTRATION BY LABOR AND MANAGEMENT ON THESE PROBLEMS IS NEED IN THE
PERIOD AHEAD." 

FN37  SEE THE MANPOWER DEVELOPMENT AND TRAINING ACT OF 1962, SEC.
102(1), 76 STAT. 24, WHICH DIRECTS THE SECRETARY OF LABOR TO "EVALUATE
THE IMPACT OF, AND BENEFITS AND PROBLEMS CREATED BY AUTOMATION,
TECHNOLOGICAL PROGRESS, AND OTHER CHANGES IN THE STRUCTURE OF
PRODUCTION AND DEMAND ON THE USE OF THE NATION'S HUMAN RESOURCES;
ESTABLISH TECHNIQUES AND METHODS FOR DETECTING IN ADVANCE THE POTENTIAL
IMPACT OF SUCH DEVELOPMENTS; DEVELOP SOLUTIONS TO THESE PROBLEMS, AND
PUBLISH FINDINGS PERTAINING THERETO."  THE SECRETARY HAS, PURSUANT TO
THIS DIRECTION, PUBLISHED NUMEROUS BULLETINS.  SEE, E.G, TECHNOLOGICAL
TRENDS IN MAJOR AMERICAN INDUSTRIES, DEPT. OF LABOR BULLETIN NO. 1474. 

FN38  AS A GENERAL PROPOSITION, SUCH CIRCUMSTANCES MIGHT INCLUDE THE
REMOTENESS OF THE THREAT OF DISPLACEMENT BY THE BANNED PRODUCT OR
SERVICES, THE HISTORY OF LABOR RELATIONS BETWEEN THE UNION AND THE
EMPLOYERS WHO WOULD BE BOYCOTTED, AND THE ECONOMIC PERSONALITY OF THE
INDUSTRY.  SEE COMMENT, 62 MICH. L. REV. 1176, 1185 ET SEQ. (1964). 

FN39  SEE LESNICK, JOB SECURITY AND SECONDARY BOYCOTTS:  THE REACH OF
NLRA SECS. 8(B)(4) AND 8(E), 113 U. PA. L. REV. 1000, 1018, 1040
(1965). 

FN40  SEE ORANGE BELT DISTRICT COUNCIL OF PAINTERS V. LABOR BOARD,
117 U.S. APP. D.C.  233, 328 F.2D 534 (1964); RETAIL CLERKS UNION LOCAL
770 V. LABOR BOARD, 111 U.S. APP.  D.C. 246, 296 F.2D 368 (1961); TODD
SHIPYARDS CORP. V. INDUSTRIAL UNION OF MARINE AND SHIPBLDG.  WORKERS,
344 F.2D 107 (C.A. 2D CIR. 1965); LABOR BOARD V. LOCAL 825, INT'L UNION
OF OPERATING ENGINEERS, 326 F.2D 218 (C.A. 3D CIR. 1964); LABOR BOARD
V. JOINT COUNCIL OF TEAMSTERS, 338 F.2D 23, 28 (C.A. 9TH CIR. 1964);
MILK DRIVERS & DAIRY EMPLOYEES UNION (MINNESOTA MILK CO.), 133 N.L.R.B.
1314, ENFORCED, 314 F.2D 761 (C.A. 8TH CIR. 1963); OHIO VALLEY
CARPENTERS DISTRICT COUNCIL (CARDINAL INDUSTRIES), 136 N.L.R.B. 977
(1962). 

FN41  SEE, E.G., RETAIL CLERKS UNION LOCAL 770 V. LABOR BOARD, 111
U.S. APP. D.C. 246, 296 F.2D 368 (1961); BALTIMORE LITHOGRAPHERS (ALCO
GRAVURE), 160 N.L.R.B. NO. 90, 63 L.R.R.M. 1126 (1966); JOLIET
CONTRACTORS ASSN. V. LABOR BOARD, 202 F.2D 606 (C.A. 7TH CIR. 1953),
CERT. DENIED, 346 U.S. 824; LABOR BOARD V. LOCAL 11, UNITED BRO. OF
CARPENTERS, 242 F.2D 932 (C.A. 6TH CIR. 1957).  SEE GENERALLY LESNICK,
SUPRA, N. 39; COMMENT, 62 MICH. L. REV. 1176 (1964). 

       APPENDIX TO OPINION OF THE COURT. 

THE RELEVANT PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED (61 STAT. 141, 73 STAT. 542, 29 U.S.C. SEC 158), ARE AS
FOLLOWS: 

8(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR
ITS AGENTS: 

     *         *         *         *         * 

(4)(I)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE
OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM
ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY PERSON
ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE IN
EITHER CASE ANY OBJECT THEREOF IS: 

(A)  FORCING OR REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON  ...
TO ENTER INTO ANY AGREEMENT WHICH IS PROHIBITED BY SECTION 8(E): 

(B)  FORCING OR REQUIRING ANY PERSON TO CEASE USING, SELLING,
HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY
OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING BUSINESS
WITH ANY OTHER PERSON  ...  .  PROVIDED, THAT NOTHING CONTAINED IN THIS
CLAUSE (B) SHALL BE CONSTRUED TO MAKE UNLAWFUL, WHERE NOT OTHERWISE
UNLAWFUL, ANY PRIMARY STRIKE OR PRIMARY PICKETING: 

*         *         *         *         * 

(E)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR ANY LABOR ORGANIZATION
AND ANY EMPLOYER TO ENTER INTO ANY CONTRACT OR AGREEMENT, EXPRESS OR
IMPLIED, WHEREBY SUCH EMPLOYER CEASES OR REFRAINS OR AGREES TO CEASE OR
REFRAIN FROM HANDLING, USING, SELLING, TRANSPORTING OR OTHERWISE
DEALING IN ANY OF THE PRODUCTS OF ANY OTHER EMPLOYER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON, AND ANY CONTRACT OR AGREEMENT ENTERED
INTO HERETOFORE OR HEREAFTER CONTAINING SUCH AN AGREEMENT SHALL BE TO
SUCH EXTENT UNENFORCIBLE AND VOID: PROVIDED, THAT NOTHING IN THIS
SUBSECTION (E) SHALL APPLY TO AN AGREEMENT BETWEEN A LABOR ORGANIZATION
AND AN EMPLOYER IN THE CONSTRUCTION INDUSTRY RELATING TO THE
CONTRACTING OR SUBCONTRACTING OF WORK TO BE DONE AT THE SITE OF THE
CONSTRUCTION, ALTERATION, PAINTING, OR REPAIR OF A BUILDING, STRUCTURE,
OR OTHER WORK:  PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS
SUBSECTION (E) AND SECTION 8(B)(4)(B) THE TERMS "ANY EMPLOYER," "ANY
PERSON ENGAGED IN COMMERCE OR AN INDUSTRY AFFECTING COMMERCE," AND "ANY
PERSON" WHEN USED IN RELATION TO THE TERMS "ANY OTHER PRODUCER,
PROCESSOR, OR MANUFACTURER," "ANY OTHER EMPLOYER," OR "ANY OTHER
PERSON" SHALL NOT INCLUDE PERSONS IN THE RELATION OF A JOBBER,
MANUFACTURER, CONTRACTOR, OR SUBCONTRACTOR WORKING ON THE GOODS OR
PREMISES OF THE JOBBER OR MANUFACTURER OR PERFORMING PARTS OF AN
INTEGRATED PROCESS OF PRODUCTION IN THE APPAREL AND CLOTHING INDUSTRY:
PROVIDED FURTHER, THAT NOTHING IN THIS ACT SHALL PROHIBIT TNE
ENFORCEMENT OF ANY AGREEMENT WHICH IS WITHIN THE FOREGOING EXCEPTION. 

MEMORANDUM OF MR. JUSTICE HARLAN. 

IN JOINING THE COURT'S OPINION, I AM CONSTRAINED TO ADD THESE FEW
WORDS BY WAY OF UNDERSCORING THE SALIENT FACTORS WHICH, IN MY JUDGMENT,
MAKE FOR THE DECISION THAT HAS BEEN REACHED IN THESE DIFFICULT CASES. 

1.  THE FACTS AS FOUND BY THE BOARD AND THE COURT OF APPEALS SHOW
THAT THE CONTRACTUAL RESTRICTIVE-PRODUCT RULE IN QUESTION, AND THE
BOYCOTT IN SUPPORT OF ITS ENFORCEMENT, HAD AS THEIR SOLE OBJECTIVE THE
PROTECTION OF UNION MEMBERS FROM A DIMINUTION OF WORK FLOWING FROM
CHANGES IN TECHNOLOGY.  UNION MEMBERS TRADITIONALLY HAD PERFORMED THE
TASK OF FITTING DOORS ON THE JOBSITE, AND THERE IS NO EVIDENCE OF ANY
MOTIVE FOR THIS CONTRACT PROVISION AND ITS COMPANION BOYCOTT OTHER THAN
THE PRESERVATION OF THAT WORK.  THIS, THEN, IS NOT A CASE OF A UNION
SEEKING TO RESTRICT BY CONTRACT OR BOYCOTT AN EMPLOYER WITH RESPECT TO
THE PRODUCTS HE USES, FOR THE PURPOSE OF ACQUIRING FOR ITS MEMBERS WORK
THAT HAD NOT PREVIOUSLY BEEN THEIRS.    2.  THE ONLY QUESTION THUS TO
BE DECIDED, AND WHICH IS DECIDED, IS WHETHER CONGRESS MEANT, IN
ENACTING SECS. 8(B)(4)(B) AND 8(E) OF THE NATIONAL LABOR RELATIONS ACT,
TO PREVENT THIS KIND OF LABOR-MANAGEMENT ARRANGEMENT DESIGNED TO
FORESTALL POSSIBLE ADVERSE EFFECTS UPON WORKERS ARISING FROM CHANGING
TECHNOLOGY.    3.  BECAUSE OF THE POSSIBLY PROFOUND IMPACTS THAT THE
ANSWER TO THIS QUESTION MAY HAVE UPON LABOR-MANAGEMENT RELATIONS AND
UPON OTHER ASPECTS OF THE ECONOMY, BOTH SIDES OF TODAY'S DIVISION IN
THE COURT AGREE THAT WE MUST BE ESPECIALLY CAREFUL TO ESCHEW A
RESOLUTION OF THE ISSUE ACCORDING TO OUR OWN ECONOMIC IDEAS AND TO FIND
ONE IN WHAT CONGRESS HAS DONE.  IT IS FURTHER AGREED THAT IN PURSUING
THE SEARCH FOR THE TRUE INTENT OF CONGRESS WE SHOULD NOT STOP WITH THE
LANGUAGE OF THE STATUTE ITSELF, BUT MUST LOOK BENEATH ITS SURFACE TO
THE LEGISLATIVE HISTORY. 

4.  IT IS RECOGNIZED BY COURT AND COUNSEL ON BOTH SIDES THAT THE
LEGISLATIVE HISTORY OF SEC. 8(B)(4)(B), WITH WHICH SEC. 8(E), IT IS
AGREED, IS TO BE TAKEN PARI PASSU, CONTAINS ONLY THE MOST TANGENTIAL
REFERENCES TO PROBLEMS CONNECTED WITH CHANGING TECHNOLOGY.  ALSO, A
CIRCUMSPECT READING OF THE LEGISLATIVE RECORD EVINCING CONGRESS' BELIEF
THAT THE SATUTORY PROVISIONS IN QUESTION PROHIBITED AGREEMENTS AND
CONDUCT OF THE KIND INVOLVED IN ALLEN BRADLEY CO. V. LOCAL UNION NO. 3,
325 U.S. 797, WILL NOT SUPPORT A CONFIDENT ASSERTION THAT CONGRESS ALSO
HAD IN MIND THE SORT OF UNION-MANAGEMENT ACTIVITY BEFORE US HERE.  AND
ALTHOUGH IT IS ARGUABLE THAT CONGRESS, IN THE TEMPER OF THE TIMES,
WOULD HAVE READILY ACCEPTED A PROPOSAL TO OUTLAW WORK-PRESERVATION
AGREEMENTS AND BOYCOTTS, EVEN, AS HERE, IN THEIR MOST LIMITED SENSE,
SUCH A SURMISE CAN HARDLY SERVE AS A BASIS FOR CONSTRUCTION OF AN
EXISTING STATUTE. 

5.  WE ARE THUS LEFT WITH A LEGISLATIVE HISTORY WHICH, ON THE PRECISE
POINT AT ISSUE, IS ESSENTIALLY NEGATIVE, WHICH SHOWS WITH FAIR
CONCLUSIVENESS ONLY THAT CONGRESS WAS NOT SQUARELY FACED WITH THE
PROBLEM THESE CASES PRESENT.  IN VIEW OF CONGRESS' DEEP COMMITMENT TO
THE RESOLUTION OF MATTERS OF VITAL IMPORTANCE TO MANAGEMENT AND LABOR
THROUGH THE COLLECTIVE BARGAINING PROCESS, AND ITS RECOGNITION OF THE
BOYCOTT AS A LEGITIMATE WEAPON IN THAT PROCESS, IT WOULD BE UNFORTUNATE
WERE THIS COURT TO ATTRIBUTE TO CONGRESS, ON THE BASIS OF SUCH AN
OPAQUE LEGISLATIVE RECORD, A PURPOSE TO OUTLAW THE KIND OF COLLECTIVE
BARGAINING AND CONDUCT INVOLVED IN THESE CASES.  ESPECIALLY AT A TIME
WHEN CONGRESS IS CONTINUING TO EXPLORE METHODS FOR MEETING THE ECONOMIC
PROBLEMS INCREASINGLY ARISING IN THIS TECHNOLOGICAL AGE FROM SCIENTIFIC
ADVANCES, THIS COURT SHOULD NOT TAKE SUCH A STEP UNTIL CONGRESS HAS
MADE UNMISTAKABLY CLEAR THAT IT WISHES WHOLLY TO EXCLUDE COLLECTIVE
BARGAINING AS ONE AVENUE OF APPROACH TO SOLUTIONS IN THIS ELUSIVE
ASPECT OF OUR ECONOMY. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND
MR. JUSTICE CLARK JOIN, DISSENTING. 

THE UNION'S BOYCOTT OF THE PREFITTED DOORS CLEARLY FALLS WITHIN THE
EXPRESS TERMS OF THE FEDERAL LABOR LAW, WHICH MAKES SUCH CONDUCT
UNLAWFUL WHEN "AN OBJECT THEREOF" IS "FORCING OR REQUIRING ANY PERSON
TO CEASE USING  ...  THE PRODUCTS OF ANY OTHER  ...  MANUFACTURER  ...
."  (FN1)  AND THE COLLECTIVE BARGAINING PROVISION THAT AUTHORIZES SUCH
A BOYCOTT LIKEWISE STANDS CONDEMNED BY THE LAW'S PROHIBITION OF ANY
AGREEMENT WHEREBY AN EMPLOYER "AGREES TO CEASE OR REFRAIN FROM HANDLING
...  ANY OF THE PRODUCTS OF ANY OTHER EMPLOYER  ...  ."  (FN2)  THE
COURT UNDERTAKES A PROTRACTED REVIEW OF LEGISLATIVE AND DECISIONAL
HISTORY IN AN EFFORT TO SHOW THAT THE CLEAR WORDS OF THE STATUTE SHOULD
BE DISREGARDED IN THESE CASES.  BUT THE FACT IS THAT THE RELEVANT
HISTORY FULLY CONFIRMS THAT CONGRESS MEANT WHAT IT SAID, AND I
THEREFORE DISSENT. 

THE COURT CONCLUDES THAT THE UNION'S CONDUCT IN THESE CASES FALLS
OUTSIDE THE AMBIT OF SEC. 8(B)(4) BECAUSE IT HAD AN ULTIMATE PURPOSE
THAT THE COURT CHARACTERIZES AS "PRIMARY" IN NATURE - THE PRESERVATION
OF WORK FOR UNION MEMBERS.  BUT SEC. 8(B)(4) IS NOT LIMITED TO BOYCOTTS
THAT HAVE AS THEIR ONLY PURPOSE THE FORCING OF ANY PERSON TO CEASE
USING THE PRODUCTS OF ANOTHER; IT IS SUFFICIENT IF THAT RESULT IS "AN
OBJECT" OF THE BOYCOTT.  LEGITIMATE UNION OBJECTIVES MAY NOT BE
ACCOMPLISHED THROUGH MEANS PROSCRIBED BY THE STATUTE.  SEE LABOR BOARD
V. DENVER BLDG. TRADES COUNCIL, 341 U.S. 675, 688-689.  (FN3)  WITHOUT
QUESTION, PREVENTING FROUGE FROM USING PREFITTED DOORS WAS "AN OBJECT"
OF THE UNION'S CONDUCT HERE.  (FN4) 

IT IS, OF COURSE, TRUE THAT COURTS HAVE DISTINGUISHED "PRIMARY" AND
"SECONDARY" ACTIVITIES, AND HAVE FOUND THE FORMER PERMITTED DESPITE THE
LITERAL APPLICABILITY OF THE STATUTORY LANGUAGE.  SEE LOCAL 761,
ELECTRICAL WORKERS V. LABOR BOARD, 366 U.S. 667.  BUT THE COURT ERRS IN
CONCLUDING THAT THE PRODUCT BOYCOTT CONDUCTED BY THE UNION IN THESE
CASES WAS PROTECTED PRIMARY ACTIVITY.  AS THE COURT POINTS OUT, A
TYPICAL FORM OF SECONDARY BOYCOTT IS THE VISITATION OF SANCTIONS ON
EMPLOYER A, WITH WHOM THE UNION HAS NO DISPUTE, IN ORDER TO FORCE HIM
TO CEASE DOING BUSINESS WITH EMPLOYER B, WITH WHOM THE UNION DOES HAVE
A DISPUTE.  BUT THIS IS NOT THE ONLY FORM OF SECONDARY BOYCOTT THAT
SEC. 8(B)(4) WAS INTENDED TO REACH.  THE COURT OVERLOOKS THE FACT THAT
A PRODUCT BOYCOTT FOR WORK PRESERVATION PURPOSES HAS CONSISTENTLY BEEN
REGARDED BY THE COURTS, AND BY THE CONGRESS THAT PASSED THE TAFT
HARTLEY ACT, AS A PROSCRIBED "SECONDARY BOYCOTT." 

IN THE INTERIM BETWEEN THE PASSAGE OF SEC. 20 OF THE CLAYTON ACT, 38
STAT. 738, AND THE ENACTMENT OF THE NORRIS-LAGUARDIA ACT, 47 STAT. 70,
THIS COURT ESTABLISHED THAT SECONDARY STRIKES AND BOYCOTTS WERE NOT
EXEMPT FROM THE COVERAGE OF THE ANTITRUST LAWS.  IN DUPLEX PRINTING
PRESS CO. V. DEERING, 254 U.S. 443, THE ANTITRUST LAWS WERE FOUND
APPLICABLE TO A SECONDARY BOYCOTT OF THE EMPLOYER A-EMPLOYER B TYPE
DESCRIBED ABOVE.  A REFUSAL TO INSTALL STONE THAT HAD NOT BEEN CUT BY
UNION LABOR WAS HELD AN ILLEGAL SECONDARY BOYCOTT IN BEDFORD CUT STONE
CO. V. JOURNEYMEN STONE CUTTERS' ASSN., 274 U.S. 37.  THEN IN PAINTERS
DISTRICT COUNCIL V. UNITED STATES, 284 U.S. 582, THE COURT ON THE
AUTHORITY OF BEDFORD CUT STONE AFFIRMED A DECISION HOLDING THAT A
PRODUCT BOYCOTT FOR WORK PRESERVATION PURPOSES WAS AN ILLEGAL SECONDARY
BOYCOTT.  THE CASE INVOLVED A REFUSAL TO INSTALL PREFINISHED KITCHEN
CABINETS BY WORKMEN WHO SOUGHT TO SECURE THE WORK OF FINISHING FOR
THEMSELVES.  (FN5) 

IN 1932 CONGRESS REVERSED DUPLEX AND ITS PROGENY BY PASSING THE
NORRIS-LAGUARDIA ACT.  SEE DRIVERS' UNION V. LAKE VALLEY CO., 311 U.S.
91, 100-103; UNITED STATES V. HUTCHESON, 312 U.S. 219, 229-231, 235
237.  BUT IN ENACTING THE TAFT-HARTLEY ACT IN 1947, 61 STAT.  136,
CONGRESS CLEARLY PROVIDED THAT, QUITE APART FROM THE ANTITRUST LAWS OR
THE NORRIS-LAGUARDIA ACT, A PRODUCT BOYCOTT OF THE KIND INVOLVED IN
THESE CASES WAS TO BE AN UNFAIR LABOR PRACTICE. 

A PROPER UNDERSTANDING OF THE PURPOSE OF CONGRESS IN ENACTING SEC.
8(B)(4) IN THAT YEAR REQUIRES AN APPRECIATION OF THE IMPACT OF THIS
COURT'S 1945 DECISION IN ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, 325
U.S. 797.  ALLEN BRADLEY WAS A PRIVATE ANTITRUST ACTION BROUGHT AGAINST
THE ELECTRICAL WORKERS UNION IN NEW YORK CITY.  UNION MEMBERS WERE
EMPLOYED BY CONTRACTORS TO INSTALL ELECTRICAL EQUIPMENT IN BUILDINGS. 
OTHER UNION MEMBERS WERE EMPLOYED BY NEW YORK CITY MANUFACTURERS OF
ELECTRICAL EQUIPMENT.  AS PART OF A CONSPIRACY BETWEEN THE
MANUFACTURERS, THE CONTRACTORS AND THE UNION, UNION MEMBERS REFUSED TO
INSTALL ANY ELECTRICAL EQUIPMENT MANUFACTURED OUTSIDE THE CITY.  THE
UNION'S INTEREST IN THIS SCHEME IS PLAINLY SET FORTH IN THE COURT'S
OPINION; IT WAS TO OBTAIN "WORK FOR ITS OWN MEMBERS."  325 U.S., AT
799.  "THE BUSINESS OF NEW YORK CITY MANUFACTURERS HAD A PHENOMENAL
GROWTH, THEREBY MULTIPLYING THE JOBS AVAILABLE FOR THE LOCAL'S
MEMBERS."  325 U.S., AT 800.  JUST AS IN THE CASES BEFORE US, THE UNION
ENFORCED THE PRODUCT BOYCOTT TO PROTECT THE WORK OPPORTUNITIES OF ITS
MEMBERS.  (FN6)  THE COURT FOUND THE ANTITRUST LAWS APPLICABLE TO THE
UNION'S ROLE IN THE SCHEME, BUT SOLELY ON THE GROUND THAT THE UNION HAD
CONSPIRED WITH THE MANUFACTURERS AND CONTRACTORS.  SIGNIFICANTLY FOR
PRESENT PURPOSES, THE COURT STATED THAT "HAD THERE BEEN NO UNION
CONTRACTOR-MANUFACTURER COMBINATION THE UNION'S ACTIONS HERE  ...
WOULD NOT HAVE BEEN VIOLATIONS OF THE SHERMAN ACT."  325 U.S., AT 807. 
THE COURT FURTHER INDICATED THAT, BY ITSELF, A BARGAINING AGREEMENT
AUTHORIZING THE PRODUCT BOYCOTT IN QUESTION WOULD NOT TRANSGRESS THE
ANTITRUST LAWS.  325 U.S., AT 809.  IN CONCLUSION, THE COURT RECOGNIZED
THAT ALLOWING UNIONS TO EFFECT PRODUCT BOYCOTTS MIGHT OFFEND SOUND
PUBLIC POLICY, BUT INDICATED THAT THE REMEDY LAY IN THE HANDS OF THE
LEGISLATURE: 

"OUR HOLDING MEANS THAT THE SAME LABOR UNION ACTIVITIES MAY OR MAY
NOT BE IN VIOLATION OF THE SHERMAN ACT, DEPENDENT UPON WHETHER THE
UNION ACTS ALONE OR IN COMBINATION WITH BUSINESS GROUPS.  THAT, IT IS
ARGUED, BRINGS ABOUT A WHOLLY UNDESIRABLE RESULT - ONE WHICH LEAVES
LABOR UNIONS FREE TO ENGAGE IN CONDUCT WHICH RESTRAINS TRADE.  BUT THE
DESIRABILITY OF SUCH AN EXEMPTION OF LABOR UNIONS IS A QUESTION FOR THE
DETERMINATION OF CONGRESS."  325 U.S., AT 810. 

CONGRESS RESPONDED WHEN IT ENACTED THE TAFT-HARTLEY ACT.  ALTHOUGH
THERE HAVE BEEN DIFFERING VIEWS WITHIN THE COURT AS TO THE SCOPE OF
LABOR UNIONS' EXEMPTION FROM THE ANTITRUST LAWS,  (FN7)  THE COURT IN
ALLEN BRADLEY HAD PLAINLY STATED THAT A WORK PRESERVATION PRODUCT
BOYCOTT BY A UNION ACTING ALONE FELL WITHIN THAT EXEMPTION.  TWO YEARS
AFTER THE ALLEN BRADLEY DECISION, THE 80TH CONGRESS PROHIBITED SUCH
PRODUCT BOYCOTTS, BUT DID SO THROUGH THE TAFT-HARTLEY ACT RATHER THAN
BY CHANGING THE ANTITRUST LAWS.  THE SENATE REPORT ON SEC 8(B)(4)(A)
(FN8) OF THE BILL THAT BECAME LAW CLEARLY INDICATES THAT CONGRESS
INTENDED TO PROSCRIBE NOT ONLY THE EMPLOYER A-EMPLOYER B MODEL OF
SECONDARY BOYCOTT, BUT ALSO PRODUCT BOYCOTTS LIKE THAT INVOLVED IN
ALLEN BRADLEY AND IN THE CASES BEFORE US: 

"UNDER PARAGRAPH (A) STRIKES OR BOYCOTTS, OR ATTEMPTS TO INDUCE OR
ENCOURAGE SUCH ACTION, ARE MADE VIOLATIONS OF THE ACT IF THE PURPOSE IS
TO FORCE AN EMPLOYER OR OTHER PERSON TO CEASE USING, SELLING, HANDLING,
TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANOTHER, OR TO
CEASE DOING BUSINESS WITH ANY OTHER PERSON.  THUS, IT WOULD NOT BE
LAWFUL FOR A UNION TO ENGAGE IN A STRIKE AGAINST EMPLOYER A FOR THE
PURPOSE OF FORCING THAT EMPLOYER TO CEASE DOING BUSINESS WITH EMPLOYER
B; NOR WOULD IT BE LAWFUL FOR A UNION TO BOYCOTT EMPLOYER A BECAUSE
EMPLOYER A USES OR OTHERWISE DEALS IN THE GOODS OF OR DOES BUSINESS
WITH EMPLOYER B (WITH WHOM THE UNION HAS A DISPUTE).  THIS PARAGRAPH
ALSO MAKES IT AN UNFAIR LABOR PRACTICE FOR A UNION TO ENGAGE IN THE
TYPE OF SECONDARY BOYCOTT THAT HAS BEEN CONDUCTED IN NEW YORK CITY BY
LOCAL NO. 3 OF THE IBEW, WHEREBY ELECTRICIANS HAVE REFUSED TO INSTALL
ELECTRICAL PRODUCTS OF MANUFACTURERS EMPLOYING ELECTRICIANS WHO ARE
MEMBERS OF SOME LABOR ORGANIZATION OTHER THAN LOCAL NO. 3.  (SEE  ...
ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, I.B.E.W., 325 U.S. 797.)" 
(FN9) 

THIS CLEAR EXPRESSION OF LEGISLATIVE INTENT IS CONFIRMED BY THE FLOOR
DEBATES.  (FN10)  IT IS ENTIRELY UNDERSTANDABLE THAT CONGRESS SHOULD
HAVE SOUGHT TO PROHIBIT PRODUCT BOYCOTTS HAVING A WORK PRESERVATION
PURPOSE.  UNLIKE MOST STRIKES AND BOYCOTTS, WHICH ARE TEMPORARY
TACTICAL MANEUVERS IN A PARTICULAR LABOR DISPUTE, WORK PRESERVATION
PRODUCT BOYCOTTS ARE LIKELY TO BE PERMANENT, AND THE RESTRAINT ON THE
FREE FLOW OF GOODS IN COMMERCE IS DIRECT AND PERVASIVE, NOT LIMITED TO
GOODS MANUFACTURED BY A PARTICULAR EMPLOYER WITH WHOM THE UNION MAY
HAVE A GIVEN DISPUTE. 

ALTHOUGH IT WAS DEEPLY CONCERNED WITH THE EXTENSIVE RESTRAINTS ON
TRADE CAUSED BY PRODUCT BOYCOTTS, THE 80TH CONGRESS SPECIFICALLY
DECLINED TO AMEND THE ANTITRUST LAWS TO REACH THE ALLEN BRADLEY TYPE OF
SECONDARY BOYCOTT BECAUSE IT CORRECTLY UNDERSTOOD THAT SUCH PRACTICES
WERE ALREADY DIRECTLY COVERED BY SEC. 8(B)(4) OF THE 1947 ACT.  THE
HOUSE CONFERENCE REPORT EXPLAINED WHY A PROVISION IN THE HOUSE DRAFT
THAT WOULD HAVE AMENDED "THE CLAYTON ACT SO AS TO WITHDRAW THE
EXEMPTION OF LABOR ORGANIZATIONS UNDER THE ANTITRUST LAWS WHEN SUCH
ORGANIZATIONS ENGAGED IN COMBINATIONS OR CONSPIRACIES  ...  TO IMPOSE
RESTRICTIONS OR CONDITIONS UPON THE PURCHASE, SALE, OR USE OF ANY
PRODUCT, MATERIAL, MACHINE, OR EQUIPMENT  ...  " WAS DROPPED IN THE
CONFERENCE THAT AGREED ON THE TAFT-HARTLEY ACT.  IT STATED THAT "SINCE
THE MATTERS DEALT WITH IN THIS SECTION HAVE TO A LARGE MEASURE BEEN
EFFECTUATED THROUGH THE USE OF BOYCOTTS, AND SINCE THE CONFERENCE
AGREEMENT CONTAINS EFFECTIVE PROVISIONS DIRECTLY DEALING WITH BOYCOTTS
THEMSELVES, THIS PROVISION IS OMITTED FROM THE CONFERENCE AGREEMENT." 
(FN11) 

THE COURT SEEKS TO AVOID THE THRUST OF THIS LEGISLATIVE HISTORY
STEMMING FROM ALLEN BRADLEY BY SUGGESTING THAT IN THE PRESENT CASES,
THE PRODUCT BOYCOTT WAS USED TO PRESERVE WORK OPPORTUNITIES
TRADITIONALLY PERFORMED BY THE UNION, WHEREAS IN ALLEN BRADLEY THE
BOYCOTT WAS ORGINALLY DESIGNED TO CREATE NEW JOB OPPORTUNITIES.  BUT IT
IS MISLEADING TO STATE THAT THE UNION IN ALLEN BRADLEY USED THE PRODUCT
BOYCOTT AS A "SWORD."  THE RECORD IN THAT CASE ESTABLISHES THAT THE
BOYCOTT WAS UNDERTAKEN FOR THE DEFENSIVE PURPOSE OF RESTORING JOB
OPPORTUNITIES LOST IN THE DEPRESSION.  MOREOVER, THE COURT IS UNABLE TO
CITE ANYTHING IN ALLEN BRADLEY, OR IN THE TAFT-HARTLEY ACT AND ITS
LEGISLATIVE HISTORY, TO SUPPORT A DISTINCTION IN THE APPLICABILITY OF
SEC. 8(B)(4) BASED ON THE ORIGIN OF THE JOB OPPORTUNITIES SOUGHT TO BE
PRESERVED BY A PRODUCT BOYCOTT.  THE COURT CREATES ITS SWORD AND SHIELD
DISTINCTION OUT OF THIN AIR; NOTHING COULD MORE CLEARLY INDICATE THAT
THE COURT IS SIMPLY SUBSTITUTING ITS OWN CONCEPTS OF DESIRABLE LABOR
POLICY FOR THE SCHEME ENACTED BY CONGRESS.    THE COURTS AND THE
NATIONAL LABOR RELATIONS BOARD FULLY RECOGNIZED THAT CONGRESS HAD
INTENDED TO BAN PRODUCT BOYCOTTS ALONG WITH OTHER FORMS OF THE
SECONDARY BOYCOTT, AND THAT IT HAD NOT DISTINGUISHED BETWEEN "GOOD" AND
"BAD" SECONDARY BOYCOTTS.  (FN12)  IN A 1949 DECISION INVOLVING SEC.
8(B)(4), THE BOARD STATED THAT "CONGRESS CONSIDERED THE 'PRODUCT
BOYCOTT' ONE OF THE PRECISE EVILS WHICH THAT PROVISION WAS DESIGNED TO
CURB."  (FN13)  THE COURTS AGREED.  IN JOLIET CONTRACTORS ASSN. V.
LABOR BOARD, 202 F.2D 606, CERT. DENIED, 346 U.S. 824, THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT HELD THAT A GLAZIERS' UNION BOYCOTT OF
PREGLAZED SASHES TO PRESERVE WORK THEY HAD TRADITIONALLY PERFORMED WAS
AN UNFAIR LABOR PRACTICE UNDER SEC. 8(B)(4).  A SIMILARLY MOTIVATED
BOYCOTT OF PREFABRICATED DOORS BY CONSTRUCTION WORKERS WAS LIKEWISE
HELD ILLEGAL BY THE COURT OF APPEALS FOR THE SIXTH CIRCUIT IN LABOR
BOARD V. LOCAL 11, UNITED BRO. OF CARPENTERS, 242 F.2D 932.  THERE WERE
NO COURT DECISIONS TO THE CONTRARY PRIOR TO THE 1959 AMENDMENTS TO THE
NATIONAL LABOR RELATIONS ACT.  ALTHOUGH IT MADE EXTENSIVE OTHER CHANGES
IN SEC 8 AT THAT TIME, CONGRESS DID NOT DISTURB THE LAW FIRMLY
ESTABLISHED BY THESE DECISIONS.  (FN14)  THE CONCLUSION IS INESCAPABLE
THAT THE UNION'S BOYCOTT OF THE PREFITTED DOORS IN THESE CASES CLEARLY
VIOLATED SEC. 8(B)(4)(B).  (FN15) 

IN 1959 CONGRESS ENACTED SEC. 8(E) TO ENSURE THAT SEC. 8(B)(4)'S BAN
ON BOYCOTTS WOULD NOT BE CIRCUMVENTED BY UNIONS THAT OBTAINED
MANAGEMENT'S AGREEMENT TO PRACTICES WHICH WOULD GIVE RISE TO A SEC.
8(B)(4) VIOLATION IF THE UNION ATTEMPTED UNILATERALLY TO ENFORCE THEIR
OBSERVANCE.  IN THE SAND DOOR DECISION IN 1958,  (FN16)  THE COURT HAD
INDICATED THAT THE EXECUTION OF A UNION-EMPLOYER AGREEMENT AUTHORIZING
A SECONDARY BOYCOTT, AND THE EMPLOYER'S OBSERVANCE OF THAT AGREEMENT,
DID NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.  SECTION 8(E) WAS THE
CONGRESSIONAL RESPONSE.  CONGRESS ALSO ADDED A NEW PARAGRAPH (A) TO
SEC. 8(B)(4), PROSCRIBING UNION PRESSURE ON AN EMPLOYER TO FORCE HIM TO
EXECUTE AN AGREEMENT BANNED BY SEC. 8(E).  IT IS THUS EVIDENT THAT
SECS. 8(B)(4)(A), 8(B)(4)(B) AND 8(E) MUST BE CONSTRUED IN HARMONY AS
PROHIBITING VARIOUS UNION METHODS OF IMPLEMENTING THE TYPE OF BOYCOTTS
THAT CONGRESS SOUGHT TO PROHIBIT IN THE TAFT-HARTLEY ACT.  AS THE COURT
OBSERVES, THE SWEEP OF SEC. 8(E) IS NO GREATER THAN THAT OF SEC.
8(B)(4).  BY THE SAME LOGIC, IT IS NO NARROWER.  THE RELATION BETWEEN
THE TWO SECTIONS WAS SET FORTH IN OHIO VALLEY CARPENTERS, 136 N.L.R.B.
977, 987: 

"THE VALIDITY OF A RESTRICTIVE AGREEMENT CHALLENGED UNDER SEC. 8(E)
MUST BE CONSIDERED IN TERMS OF WHETHER THAT AGREEMENT, IF ENFORCED BY
PROHIBITED MEANS, WOULD RESULT IN AN UNFAIR LABOR PRACTICE UNDER SEC.
8(B)(4)(B).  CLEARLY, THERE IS LITTLE POINT AND NO LOGIC IN DECLARING
AN AGREEMENT LAWFUL UNDER 8(E), BUT IN FINDING ITS ENFORCEMENT
CONDEMNED UNDER SEC. 8(B)(4)(B)  ...  ." 

SINCE, AS HAS BEEN SHOWN, THE PRODUCT BOYCOTT ENFORCED BY THE UNION
IN THE CASES BEFORE US VIOLATES SEC. 8(B)(4)(B), IT FOLLOWS THAT RULE
17, THE PROVISION IN THE COLLECTIVE BARGAINING AGREEMENT APPLIED TO
AUTHORIZE THIS SAME BOYCOTT BY AGREEMENT, EQUALLY VIOLATES SEC. 8(E). 
AS THE COURT POINTS OUT, AN IMPORTANT ELEMENT IN THE POLITICAL IMPETUS
BEHIND THE ENACTMENT OF SEC. 8(E) WAS CONGRESSIONAL OPPOSITION TO "HOT
CARGO" BOYCOTTS IMPOSED BY THE TEAMSTERS UNION.  BUT THE LANGUAGE AND
LOGIC OF SEC. 8(E) HAS A BROADER SCOPE, AND THE LEGISLATIVE HISTORY
CLEARLY ESTABLISHES THAT SEC. 8(E) WAS INTENDED TO PROHIBIT ALL
AGREEMENTS AUTHORIZING PRODUCT BOYCOTTS VIOLATIVE OF SEC. 8(B)(4). 
(FN17) 

THE CONTENT OF THE CONSTRUCTION INDUSTRY PROVISO TO SEC. 8(E) IS ALSO
PERSUASIVE OF THAT SECTION'S PRINCIPAL SCOPE.  THAT PROVISO EXEMPTS
ONLY CONSTRUCTION INDUSTRY AGREEMENTS "RELATING TO THE CONTRACTING OR
SUBCONTRACTING OF WORK TO BE DONE AT THE SITE OF THE CONSTRUCTION  ...
."  THE LOGICAL INFERENCE FROM THIS LANGUAGE IS THAT BOYCOTTS OF
PRODUCTS SHIPPED FROM OUTSIDE THE WORKSITE ARE PROHIBITED BY SEC. 8(E),
AND THAT INFERENCE IS CONFIRMED BY THE HOUSE CONFERENCE REPORT: 

"IT SHOULD BE PARTICULARLY NOTED THAT THE PROVISO RELATES ONLY AND
EXCLUSIVELY TO THE CONTRACTING OR SUBCONTRACTING OF WORK TO BE DONE AT
THE SITE OF THE CONSTRUCTION.  THE PROVISO DOES NOT EXEMPT FROM SECTION
8(E) AGREEMENTS RELATING TO SUPPLIES OR OTHER PRODUCTS OR MATERIALS
SHIPPED OR OTHERWISE TRANSPORTED TO AND DELIVERED ON THE SITE OF THE
CONSTRUCTION."  (FN18) 

THE COURT INDEED RECOGNIZES THAT THE SEC. 8(E) CONSTRUCTION INDUSTRY
PROVISO DOES NOT IMMUNIZE PRODUCT BOYCOTTS FROM THE REACH OF THAT
FROM THIS FACT THE PROPOSITION THAT PRODUCT BOYCOTTS ARE NOT COVERED BY
SEC. 8(E).  BUT IF SEC. 8(E) AND ITS LEGISLATIVE HISTORY ARE APPROACHED
WITHOUT PRECONCEPTIONS, IT IS EVIDENT THAT CONGRESS INTENDED TO BAR THE
USE OF ANY PROVISIONS IN A COLLECTIVE AGREEMENT TO AUTHORIZE THE
PRODUCT BOYCOTT INVOLVED IN THE CASES BEFORE US. 

FINALLY, THE COURT'S RELIANCE ON FIBREBOARD PAPER PRODS.  CORP.  V.
LABOR BOARD, 379 U.S. 203, IS WHOLLY MISPLACED.  THAT CASE INVOLVED AN
EMPLOYER'S USE OF WORKERS HIRED BY AN INDEPENDENT CONTRACTOR TO PERFORM
IN ITS OWN PLANT MAINTENANCE WORK FORMERLY DONE BY ITS OWN EMPLOYEES. 
THIS REASSIGNMENT OF WORK WAS HELD BY THE COURT TO BE A MANDATORY
SUBJECT OF COLLECTIVE BARGAINING.  THE CIRCUMSCRIBED NATURE OF THE
DECISION IS ESTABLISHED BY THE COURT'S CAREFUL OBSERVATION THAT: 

"THE COMPANY'S DECISION TO CONTRACT OUT THE MAINTENANCE WORK DID NOT
ALTER THE COMPANY'S BASIC OPERATION.  THE MAINTENANCE WORK STILL HAD TO
BE PERFORMED IN THE PLANT  ...  THE COMPANY MERELY REPLACED EXISTING
EMPLOYEES WITH THOSE OF AN INDEPENDENT CONTRACTOR TO DO THE SAME WORK
UNDER SIMILAR CONDITIONS OF EMPLOYMENT.  THEREFORE, TO REQUIRE THE
EMPLOYER TO BARGAIN ABOUT THE MATTER WOULD NOT SIGNIFICANTLY ABRIDGE
HIS FREEDOM TO MANAGE THE BUSINESS."  379 U.S., AT 213. 

AN EMPLOYER'S DECISION AS TO THE PRODUCTS HE WISHES TO BUY PRESENTS
ENTIRELY DIFFERENT ISSUES.  THAT DECISION HAS TRADITIONALLY BEEN
REGARDED AS ONE WITHIN MANAGEMENT'S DISCRETION, AND FIBREBOARD DOES NOT
INDICATE THAT IT IS A MANDATORY SUBJECT OF COLLECTIVE BARGAINING, MUCH
LESS A PERMISSIBLE BASIS FOR A PRODUCT BOYCOTT MADE ILLEGAL BY FEDERAL
LABOR LAW. 

THE RELEVANT LEGISLATIVE HISTORY CONFIRMS AND REINFORCES THE PLAIN
MEANING OF THE STATUTE AND ESTABLISHES THAT THE UNION'S PRODUCT BOYCOTT
IN THESE CASES AND THE AGREEMENT AUTHORIZING IT WERE BOTH UNFAIR LABOR
PRACTICES.  IN DECIDING TO THE CONTRARY, THE COURT HAS SUBSTITUTED ITS
OWN NOTIONS OF SOUND LABOR POLICY FOR THE WORD OF CONGRESS.  THERE MAY
BE SOCIAL AND ECONOMIC ARGUMENTS FOR CHANGING THE LAW OF PRODUCT
BOYCOTTS ESTABLISHED IN SEC. 8, BUT THOSE CHANGES ARE NOT FOR THIS
COURT TO MAKE. 

I RESPECTFULLY DISSENT. 

FN1  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 8(B)(4)(B), 73
STAT. 543, 29 U.S.C.  SEC. 158(B)(4)(B). 

FN2  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 8(E), 73 STAT.
543, 29 U.S.C. SEC.  158(E). 

FN3  AS ORIGINALLY DRAFTED, SEC. 8(B)(4) PROSCRIBED ONLY THOSE
STRIKES AND BOYCOTTS THAT HAD "THE PURPOSE OF" FORCING EMPLOYERS TO
CEASE USING PRODUCTS MANUFACTURED BY ANOTHER, ETC.  THE SIGNIFICANCE OF
THE ADOPTION IN CONFERENCE OF THE LANGUAGE FOUND IN THE ACT WAS
EXPLAINED BY SENATOR TAFT:  "SECTION 8(B)(4), RELATING TO ILLEGAL
STRIKES AND BOYCOTTS, WAS AMENDED IN CONFERENCE BY STRIKING OUT THE
WORDS 'FOR THE PURPOSE OF' AND INSERTING THE CLAUSE 'WHERE AN OBJECT
THEREOF IS.'  OBVIOUSLY THE INTENT OF THE CONFEREES WAS TO CLOSE ANY
LOOPHOLE WHICH WOULD PREVENT THE BOARD FROM BEING BLOCKED IN GIVING
RELIEF AGAINST SUCH ILLEGAL ACTIVITIES SIMPLY BECAUSE ONE OF THE
PURPOSES OF SUCH STRIKES MIGHT HAVE BEEN LAWFUL."  93 CONG. REC. 6859,
II LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947
(HEREINAFTER 1947 LEG.  HIST.), 1623. 

FN4  IN LOCAL 598 PLUMBERS & STEAMFITTERS, 131 N.L.R.B. 787, THE
EMPLOYEES OF A CONTRACTOR, SCOTT CO., BOYCOTTED TUNNEL SECTIONS WITH
PREFABRICATED SUPPORTS MANUFACTURED BY EATON.  IN REJECTING A WORK
PRESERVATION "PRIMARY PURPOSE" ARGUMENT LIKE THAT ADVANCED IN THIS
CASE, THE BOARD STATED:  "TO SAY THAT THE OBJECT OF THE UNION WAS TO
INDUCE OR COMPEL SCOTT COMPANY TO ASSIGN THE WORK OF INSTALLING THE
DISPUTED SUPPORTS TO THE UNION'S MEMBERS  ...  AND NOT TO FORCE SCOTT
COMPANY TO CEASE USING EATON'S PRODUCT OR TO CEASE DOING BUSINESS WITH
EATON IS  ...  TO PRETEND THAT THE LATTER OBJECT IS NOT A NECESSARY
CONSEQUENCE OF THE FORMER OBJECT.   THE TWO OBJECTS ARE INSEPARABLE. 
IT IS IMMATERIAL THAT ONE OBJECTIVE MIGHT BE LEGAL IF THE OTHER IS
ILLEGAL."  131 N.L.R.B., AT 800. 

FN5  SEE UNITED STATES V. PAINTERS' DISTRICT COUNCIL, 44 F.2D 58. 

FN6  THE PRESENT CASES, IN WHICH THE BOYCOTTING EMPLOYEES WERE
PROTECTING THEIR OWN WORK OPPORTUNITIES, CANNOT BE DISTINGUISHED FROM
ALLEN BRADLEY ON THE GROUND THAT THERE THE BOYCOTTING EMPLOYEES WERE
PROTECTING THE WORK OPPORTUNITIES OF OTHER MEMBERS OF THEIR UNION.  FOR
TODAY IN HOUSTON INSULATION CONTRACTORS ASSN. V. LABOR BOARD, POST, P.
664, THE COURT APPLIES ITS HOLDING IN THE PRESENT CASES TO VALIDATE A
BOYCOTT BY EMPLOYEES TO PROTECT THE WORK OPPORTUNITIES OF OTHER WORKERS
WHO WERE NOT EVEN MEMBERS OF THEIR UNION. 

FN7  SEE UNITED MINE WORKERS V. PENNINGTON, 381 U.S. 657, 672; MEAT
CUTTERS V. JEWEL TEA CO., 381 U.S. 676, 697, 735. 

FN8  IN THE 1959 AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT, SEC.
8(B)(4)(A) OF THE ORIGINAL ACT WAS, WITH CHANGES NOT HERE RELEVANT,
RETITLED SEC. 8(B)(4)(B).  SEE N. 14, INFRA. 

FN9  S. REP. NO. 105, 80TH CONG., 1ST SESS., 22, I 1947 LEG.  HIST. 
428. 

FN10  A STRONG SUPPORTER OF THE ACT, SENATOR ELLENDER, CITED THE NEW
YORK CITY ELECTRICAL WORKERS' WORK PRESERVATION PRODUCT BOYCOTT AS AN
EXAMPLE OF "THE SECONDARY BOYCOTT" THAT THE ACT WOULD PROHIBIT, ADDING
THAT "ONE CAN READILY UNDERSTAND THAT SUCH PROCEDURE IS UNCONSCIONABLE
AND THAT IT RESULTS IN HIGH COSTS TO THOSE ENGAGED IN THE ERECTION OF
OFFICE BUILDINGS, HOMES, AND STORES  ... ."  93 CONG. REC. 4132, II
1947 LEG.  HIST.  1056.  IN CONTRASTING THE COVERAGE OF THE ACT WITH
SHORTCOMINGS IN THE MEASURES SUGGESTED BY THE PRESIDENT, SENATOR BALL
NOTED THAT THE ADMINISTRATION'S PROPOSALS "WOULD NOT TOUCH AT ALL ONE
OF THE WORST SITUATIONS WHICH HAS ARISEN, SUCH AS THAT IN NEW YORK
WHERE A LOCAL OF THE IBEW IS USING THE SECONDARY BOYCOTT TO MAINTAIN A
TIGHT LITTLE MONOPOLY FOR ITS OWN EMPLOYEES, ITS OWN MEMBERS, AND A FEW
EMPLOYERS  ...  ."  93 CONG. REC. 5011, II 1947 LEG.  HIST. 1491. 
REPLYING TO CRITICISMS BY SENATOR PEPPER, SENATOR TAFT STATED THAT
SENATOR PEPPER'S POSITION WOULD ENTAIL APPROVAL OF THE NEW YORK CITY
ELECTRICAL WORKERS' PRODUCT BOYCOTT:  "THE PRINCIPLE ANNOUNCED BY THE
SENATOR FROM FLORIDA WOULD MAKE THAT STAND LAWFUL, AS IT IS LAWFUL
TODAY.  OF COURSE WE PROPOSE TO CHANGE THE LAW IN THAT RESPECT."  93
CONG. REC. 4199, II 1947 LEG.  HIST.  1107.  OPPONENTS OF THE BILL
LIKEWISE RECOGNIZED THAT THE ACT WOULD PROHIBIT WORK PRESERVATION
BOYCOTTS, AND AT LEAST ONE OF THEM, REPRESENTATIVE JAVITS, ACCEPTED
THIS FEATURE OF SEC. 8(B)(4) BUT CRITICIZED THE ACT FOR ALSO
PROHIBITING SECONDARY BOYCOTTS THAT HE BELIEVED HAD LEGITIMATE
PURPOSES.  HE STATED THAT SUCH LEGITIMATE BOYCOTTS WERE "NOT THE KIND
OF BOYCOTT WHICH IS CONTRARY TO THE PUBLIC INTEREST, THAT OTHER KIND
RESULTS FROM A MISGUIDED LABOR UNION'S EFFORTS TO KEEP CERTAIN GOODS
OUT OF A MARKET BECAUSE THE LABOR UNION FEARS THE EFFECT OF NEW
INVENTIONS OR NEW METHODS.  BUT WHILE DEALING WITH THIS  ...  ABUSE,
THE BILL ALSO HAS THE EFFECT OF DEPRIVING LABOR OF A RIGHT OF SELF
PRESERVATION WHICH HAS NEVER BEEN QUESTIONED BEFORE."  93 CONG. REC.
6296, I 1947 LEG.  HIST.  876. 

FN11  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., 65, I 1947
LEG.  HIST.  569. 

FN12  IN THE FLOOR DEBATES, SENATOR TAFT STATED THAT "IT HAS BEEN SET
FORTH THAT THERE ARE GOOD SECONDARY BOYCOTTS AND BAD SECONDARY
BOYCOTTS.  OUR COMMITTEE HEARD EVIDENCE FOR WEEKS AND NEVER SUCCEEDED
IN HAVING ANYONE TELL US ANY DIFFERENCE BETWEEN DIFFERENT KINDS OF
SECONDARY BOYCOTTS.  SO WE HAVE SO BROADENED THE PROVISION DEALING WITH
SECONDARY BOYCOTTS AS TO MAKE THEM AN UNFAIR LABOR PRACTICE."  93 CONG.
REC. 4198, II 1947 LEG.  HIST. 1106. 

THIS READING OF SEC. 8(B)(4) IS CONFIRMED BY THE SENATE MINORITY
REPORT, WHICH COMPLAINED THAT IT "IGNORES VALID DISTINCTIONS BETWEEN
JUSTIFIED AND UNJUSTIFIED BOYCOTTS BASED ON THE OBJECTIVE OF THE UNION
IN CARRYING ON SUCH A BOYCOTT  ...  .  IT INDISCRIMINATELY BANS ALL
SUCH BOYCOTTS, WHETHER JUSTIFIED OR NOT."  S. REP. NO. 105, PT. 2, 80TH
CONG., 1ST SESS., 20, I 1947 LEG.  HIST.  482. 

FN13  UNITED BROTHERHOOD OF CARPENTERS, 81 N.L.R.B. 802, 806,
ENFORCED, 184 F.2D 60. 

FN14  IN ADDITION TO RECASTING THE ORIGINAL SEC. 8(B)(4)(A) AS SEC.
8(B)(4)(B), THE 1959 AMENDMENTS PRODUCED SECS. 8(B)(4)(I) AND (II)
EXPANDING THE MODES OF UNION PRESSURE COVERED BY SEC. 8(B)(4).  SEE
LABOR BOARD V. SERVETTE, INC., 377 U.S. 46, 51-54.  AMONG THE CHANGES
WAS THE DELETION OF THE ACT'S ORIGINAL REQUIREMENT THAT UNION PRESSURE
ON INDIVIDUALS FOR THE OBJECTIVES PROSCRIBED MUST BE PRESSURE
COMMANDING "CONCERTED" ACTIVITY ON THE PART OF THOSE INDIVIDUALS.  THIS
WAS THE LEGISLATIVE RESPONSE TO LABOR BOARD V. INTERNATIONAL RICE
MILLING CO., 341 U.S. 665, WHERE THE COURT HAD INDICATED THAT JOBSITE
PICKETING DIRECTED AT TRUCK DRIVERS EMPLOYED BY A CUSTOMER OF THE
STRUCK EMPLOYER WAS NOT AND UNFAIR LABOR PRACTICE BECAUSE THERE WAS NO
ATTEMPT TO PERSUADE THE TRUCK DRIVERS TO ENGAGE IN "CONCERTED"
ACTIVITY.  IN ADDITION TO DROPPING THE "CONCERTED" ACTIVITY REQUIREMENT
AND THUS BRINGING SECONDARY CONDUCT DIRECTED AT AN INDIVIDUAL EMPLOYEE
WITHIN SEC. 8(B)(4), CONGRESS ALSO ADDED THE PROVISO THAT NOTHING IN
THE AMENDED SECTION "SHALL BE CONSTRUED TO MAKE UNLAWFUL, WHERE NOT
OTHERWISE UNLAWFUL, ANY PRIMARY STRIKE OR PRIMARY PICKETING."  THE
PURPOSE OF THIS PROVISO WAS SIMPLY TO MAKE CLEAR THAT CONGRESS DID NOT
INTEND TO DISTURB ANOTHER GROUND OF THE COURT'S DECISION IN RICE
MILLING - THAT JOBSITE PICKETING OF THE EMPLOYEES OF OTHERS WAS
PROTECTED PRIMARY ACTIVITY.  SEE LOCAL 761, ELECTRICAL WORKERS V. LABOR
BOARD, 366 U.S. 667, 681. 

THUS, THE PROVISO WAS NOT INTENDED TO MODIFY THE DISTINCTION BETWEEN
PROSCRIBED SECONDARY BOYCOTTS AND PERMITTED PRIMARY STRIKES AND
PICKETING EMBODIED IN THE ORIGINAL ACT.  THE CONFERENCE REPORT ON THE
1959 AMENDMENTS SPECIFICALLY STATES THAT "THE CHANGES IN SECTION
8(B)(4) DO NOT OVERRULE OR QUALIFY THE PRESENT RULES OF LAW PERMITTING
PICKETING AT THE SITE OF A PRIMARY LABOR DISPUTE."  H.R. CONF. REP. NO.
1147, 86TH CONG., 1ST SESS., 38, I LEGISLATIVE HISTORY OF THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (HEREINAFTER 1959 LEG. 
HIST.), 942.  CONGRESS THUS INTENDED NO CHANGE IN THE TAFT-HARTLEY
ACT'S PROSCRIPTION OF PRODUCT BOYCOTTS, WHICH COURT DECISIONS HAD
CONSISTENTLY RECOGNIZED AS "SECONDARY" AND ILLEGAL. 

FN15  WHAT HAS BEEN SAID ESTABLISHES THAT PRODUCT BOYCOTTS ARE
NORMALLY ILLEGAL REGARDLESS OF THE EMPLOYER'S CONTRACTUAL RELATIONS
WITH THE SUPPLIER OF THE BOYCOTTED GOODS, OR WITH OTHER PERSONS.  THUS
IT APPEARS THAT THE CONCEPT OF "CONTROL" WHICH THE BOARD APPLIED IN
THESE CASES LACKS RELEVANCE TO THE CORRECT DETERMINATION OF WHETHER A
SEC. 8(B)(4)(B) VIOLATION HAS OCCURRED.  CF. N. 3 TO THE COURT'S
OPINION, ANTE, AT 616. 

FN16  LOCAL 1976, UNITED BROTHERHOOD OF CARPENTERS V. LABOR BOARD,
357 U.S. 93. 

FN17  THE COURT AND THE BOARD POINT TO H.R. REP. NO. 741, 86TH CONG.,
1ST SESS., 21, I 1959 LEG.  HIST. 779, WHICH NOTED THE SIMILARITY IN
LANGUAGE BETWEEN SEC. 8(B)(4) AND A PROVISION IN A SENATE BILL SOMEWHAT
SIMILAR TO WHAT BECAME SEC. 8(E) AND CHARACTERIZED THE LATTER AS
PRESERVING "THE ESTABLISHED DISTINCTION BETWEEN PRIMARY ACTIVITIES AND
SECONDARY BOYCOTTS."  BUT THE "ESTABLISHED DISTINCTION" EMBODIED IN THE
TAFT-HARTLEY ACT AND RECOGNIZED BY THE COURTS CLASSIFIED PRODUCT
BOYCOTTS AS SECONDARY AND ILLEGAL. 

THE FLOOR DEBATES SHOW THAT BOTH PROPONENTS AND OPPONENTS OF THE
LANDRUM-GRIFFIN BILL ACKNOWLEDGED THAT IT WOULD PROHIBIT PRODUCT
BOYCOTTS, INCLUDING THOSE WITH WORK PRESERVATION PURPOSES.  FOR
EXAMPLE, SEE 105 CONG. REC. 17884, II 1959 LEG.  HIST.  1428 (REMARKS
OF SENATOR MORSE); 105 CONG. REC. 15545, II 1959 LEG.  HIST.  1581
(REMARKS OF REPRESENTATIVE RHODES). 

FN18  H.R. CONF. REP. NO. 1147, 86TH CONG., 1ST SESS., 39, I 1959
LEG.  HIST.  943.
..END :






HOUSTON CONTRACTORS ASSN. V. NATIONAL LABOR RELATIONS BOARD 386 U.S.
664 


NO. 206.  ARGUED JANUARY 19, 1967.  - DECIDED APRIL 17, 1967.* - 357
F.2D 182, AFFIRMED IN NO. 206, REVERSED IN NO. 413. 

*TOGETHER WITH NO. 413, NATIONAL LABOR RELATIONS BOARD V. HOUSTON
INSULATION CONTRACTORS ASSOCIATION, ALSO ON CERTIORARI TO THE SAME
COURT. 


IN A COLLECTIVE BARGAINING AGREEMENT BETWEEN A CONTRACTORS'
ASSOCIATION AND LOCAL 22 OF AN INSULATORS AND ASBESTOS WORKERS' UNION,
IT IS PROVIDED THAT THE EMPLOYER WILL NOT CONTRACT OUT WORK RELATING TO
THE PREPARATION, DISTRIBUTION AND APPLICATION OF PIPE AND BOILER
COVERINGS.  IN NO. 206, JOHNS-MANVILLE (J-M), AN ASSOCIATION MEMBER
ENGAGED IN A CONSTRUCTION PROJECT, PURCHASED FROM A MANUFACTURER PRECUT
STAINLESS STEEL BANDS FOR FASTENING INSULATION MATERIAL AROUND PIPES. 
SINCE CUSTOMARILY THE CUTTING WORK WAS RESERVED BY THE COLLECTIVE
BARGAINING AGREEMENT FOR J-M EMPLOYEE MEMBERS OF LOCAL 22, THE UNION
INSTRUCTED ITS MEMBERS AT THE JOBSITE NOT TO INSTALL THE PRECUT BANDS. 
THE ASSOCIATION CHARGED LOCAL 22 WITH VIOLATING SEC. 8(B)(4)(B) OF THE
NATIONAL LABOR RELATIONS ACT.  THE NLRB, HOLDING THAT THE UNION'S
CONDUCT HAD BEEN TAKEN TO PROTEST A DEPRIVATION OF WORK TRADITIONALLY
PERFORMED BY ITS MEMBERS AND THUS CONSTITUTED PRIMARY ACTIVITY,
DISMISSED THE CHARGE, AND THE COURT OF APPEALS AFFIRMED.  THE
ASSOCIATION PETITIONED FOR CERTIORARI.  IN NO. 413, ARMSTRONG COMPANY,
AN ASSOCIATION MEMBER, WAS ENGAGED IN A CONSTRUCTION PROJECT WITHIN THE
JURISDICTION OF LOCAL 113, A SISTER UNION OF LOCAL 22.  ARMSTRONG
BOUGHT FROM A MANUFACTURER ASBESTOS FITTINGS UPON WHICH HAD ALREADY
BEEN PERFORMED THE CUTTING AND MITERING OPERATIONS CUSTOMARILY
PERFORMED BY LOCAL 22 AT AN ARMSTRONG SHOP.  LOCAL 113'S AGENTS
INFORMED ARMSTRONG THAT THE FITTINGS WOULD NOT BE INSTALLED UNLESS THE
CUTTING AND MITERING HAD BEEN PERFORMED BY ITS SISTER LOCAL 22.  THE
ASSOCIATION CHARGED LOCAL 113 WITH VIOLATING SEC. 8(B)(4)(B).  THE NLRB
HAVING FOUND LOCAL 113'S CONDUCT HAD BEEN TAKEN TO PERSERVE WORK
CUSTOMARILY PERFORMED BY ARMSTRONG'S OWN EMPLOYEES, AND WAS THUS
PRIMARY, DISMISSED THE CHARGE.  THE COURT OF APPEALS REVERSED, HOLDING
THAT LOCAL 113 HAD NO ECONOMIC INTEREST IN LOCAL 22'S BREACH OF
CONTRACT CLAIM AND THAT THEREFORE LOCAL 113 WAS COERCING ARMSTRONG NOT
FOR ITS OWN BENEFIT BUT FOR THAT OF ANOTHER LOCAL AT THE EXPENSE OF A
NEUTRAL EMPLOYER.  THE NLRB PETITIONED FOR CERTIORARI.  HELD: 

1.  IN NO. 206, THERE HAVING BEEN SUBSTANTIAL EVIDENCE TO SUPPORT THE
NLRB'S FINDING, THE JUDGMENT IS AFFIRMED ON THE AUTHORITY OF NATIONAL
WOODWORK MFRS.  ASSN.  V. NLRB, ANTE, P. 612.  PP. 666-667. 

2.  IN NO. 413, THE NLRB'S FINDING, SUPPORTED BY SUBSTANTIAL
EVIDENCE, WAS THAT LOCAL 113'S OBJECT WAS TO INFLUENCE ARMSTRONG IN A
DISPUTE WITH ARMSTRONG EMPLOYEES, AND NOT FOR ITS EFFECT ELSEWHERE. 
SINCE COLLECTIVE ACTIVITY BY EMPLOYEES OF THE PRIMARY EMPLOYER WAS
INVOLVED, THE PURPOSE OF WHICH WAS TO AFFECT ITS LABOR POLICIES, THE
CONDUCT OF THE MEMBERS OF LOCAL 113 IN SUPPORT OF THEIR FELLOW
EMPLOYEES WAS NOT SECONDARY AND THUS NOT VIOLATIVE OF SEC. 8(B)(4)(B). 
NATIONAL WOODWORK MFRS.  ASSN., SUPRA, FOLLOWED.  PP. 668-669. 

HOUSTON INSULATION CONTRACTORS ASSOCIATION V. NATIONAL LABOR RELATIONS
BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO NOS. 110 AND 111, NATIONAL WOODWORK
MFRS.  ASSN.  V. NLRB, AND NLRB V. NATIONAL WOODWORK MFRS.  ASSN.,
ANTE, P. 612.  A PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE HOUSTON INSULATION CONTRACTORS ASSOCIATION AND LOCAL 22,
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS
WORKERS, AFL-CIO, PROVIDES, IN PERTINENT PART, THAT THE EMPLOYER WILL
NOT CONTRACT OUT WORK RELATING TO "THE PREPARATION, DISTRIBUTION AND
APPLICATION OF PIPE AND BOILER COVERINGS."  IN NO. 206, THE CONTRACTORS
ASSOCIATION SEEKS REVIEW OF THE DISMISSAL BY THE NATIONAL LABOR
RELATIONS BOARD, 148 N.L.R.B. 866, AFFIRMED BY THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT, 357 F.2D 182, 189, OF SEC. 8(B)(4)(B) CHARGES
BROUGHT AGAINST LOCAL 22 BECAUSE OF ITS ACTIVITIES DESIGNED TO ENFORCE
THE AGREEMENT.  NATIONAL LABOR RELATIONS ACT, AS AMENDED, 73 STAT.
543.  IN NO. 413, THE BOARD CHALLENGES THE HOLDING OF THE COURT OF
APPEALS, REVERSING THE BOARD, THAT SIMILAR CONDUCT BY A SISTER LOCAL
113, DESIGNED TO PROTECT THE WORK GUARANTEED TO LOCAL 22 BY THE
AGREEMENT, VIOLATED SEC. 8(B)(4)(B).  WE GRANTED BOTH PETITIONS AND SET
THEM FOR ARGUMENT WITH NOS. 110 AND 111.  WE AFFIRM IN NO. 206 AND
REVERSE IN NO. 413. 

NO. 206:  JOHNS-MANVILLE COMPANY, A MEMBER OF THE CONTRACTORS
ASSOCIATION, ENGAGED IN A CONSTRUCTION PROJECT IN TEXAS CITY, TEXAS,
PURCHASED FROM TECHALLOY CORPORATION, A MANUFACTURER OF INSULATION
MATERIALS, STAINLESS STEEL BANDS USED TO FASTEN ASBESTOS MATERIAL
AROUND PIPES TO BE INSULATED.  THE BANDS HAD BEEN PRECUT TO
SPECIFICATION BY TECHALLOY'S EMPLOYEES.  CUSTOMARILY, JOHNS-MANVILLE
HAD ORDERED ROLLS OF WIRE WHICH WERE THEN CUT TO SIZE BY MEMBERS OF
LOCAL 22.  THE CUTTING WORK WAS RESERVED FOR JOHNS-MANVILLE EMPLOYEE
MEMBERS OF LOCAL 22 BY THE QUOTED PROVISION OF THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE ASSOCIATION AND THE LOCAL.  AGENTS OF
LOCAL 22 INSTRUCTED ITS MEMBERS ON THE JOBSITE NOT TO INSTALL THE
PRECUT BANDS.  AFTER THE HEARING ON THE COMPLAINT ISSUED ON THE
CONTRACTORS ASSOCIATION'S CHARGE THAT THIS CONDUCT VIOLATED SEC.
8(B)(4)(B), THE BOARD HELD THAT "THE CONDUCT COMPLAINED OF HEREIN WAS
TAKEN TO PROTEST  ...  A DEPRIVATION OF WORK, ITS OBJECT BEING TO
PROTECT OR PRESERVE FOR EMPLOYEES CERTAIN WORK CUSTOMARILY PERFORMED BY
THEM.  THIS CONDUCT CONSTITUTED PRIMARY ACTIVITY AND IS PROTECTED BY
THE ACT  ...  ."  148 N.L.R.B., AT 869.  THE COURT OF APPEALS FOUND
THAT THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THIS FINDING AND
SUSTAINED IT.  (FN1)  THE ASSOCIATION HERE ATTACKS THE SUBSTANTIALITY
OF THE EVIDENCE SUPPORTING THE BOARD'S FINDING, BUT WE AGREE WITH THE
COURT OF APPEALS.  SEE UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S.
474.  IN THAT CIRCUMSTANCE OUR HOLDING TODAY IN NATIONAL WOODWORK
MFRS.  ASSN.  V. NLRB, SUPRA, REQUIRES AN AFFIRMANCE IN NO. 206. 

NO. 413:  ARMSTRONG COMPANY, A MEMBER OF THE CONTRACTORS ASSOCIATION,
WAS ENGAGED IN A CONSTRUCTION PROJECT IN VICTORIA, TEXAS, WITHIN THE
JURISDICTION OF LOCAL 113 OF THE HEAT AND FROST INSULATORS AND ASBESTOS
WORKERS.  THE CUTTING AND MITERING OF ASBESTOS FITTINGS FOR SUCH JOBS
WAS CUSTOMARILY PERFORMED AT ARMSTRONG'S HOUSTON SHOP, WHICH WAS WITHIN
LOCAL 22'S JURISDICTION.  ARMSTRONG PURCHASED FROM THORPE COMPANY, A
MANUFACTURER OF INSULATION MATERIALS, ASBESTOS FITTINGS UPON WHICH THE
CUTTING AND MITERING WORK HAD ALREADY BEEN PERFORMED.  AGENTS OF LOCAL
113 INFORMED ARMSTRONG THAT FITTINGS WOULD NOT BE INSTALLED UNLESS THE
CUTTING AND MITERING HAD BEEN PERFORMED BY ITS SISTER LOCAL 22 AS
PROVIDED BY LOCAL 22'S BARGAINING AGREEMENT.  (FN2)  THE BOARD FOUND,
AS IT HAD IN NO. 206, THAT THE OBJECT OF THIS REFUSAL WAS PRIMARY - THE
PRESERVATION OF WORK CUSTOMARILY PERFORMED BY ARMSTRONG'S OWN
EMPLOYEES.  148 N.L.R.B., AT 869.  THE COURT OF APPEALS REVERSED ON THE
GROUND THAT LOCAL 113 "HAD NO ECONOMIC INTEREST IN LOCAL 22'S CLAIM OF
BREACH OF CONTRACT," AND THAT THEREFORE "IT WAS COERCING ARMSTRONG NOT
FOR ITS OWN BENEFIT BUT FOR THE BENEFIT OF ANOTHER LOCAL AT THE EXPENSE
OF A NEUTRAL EMPLOYER."  357 F.2D, AT 189.  WE DISAGREE. 

NATIONAL WOODWORK MFRS., SUPRA, HOLDS THAT COLLECTIVE ACTIVITY BY
EMPLOYEES OF THE PRIMARY EMPLOYER, THE OBJECT OF WHICH IS TO AFFECT THE
LABOR POLICIES OF THAT PRIMARY EMPLOYER, AND NOT ENGAGED IN FOR ITS
EFFECT ELSEWHERE, IS PROTECTED PRIMARY ACTIVITY.  "CONGRESS WAS NOT
CONCERNED TO PROTECT PRIMARY EMPLOYERS AGAINST PRESSURES BY
DISINTERESTED UNIONS, BUT RATHER TO PROTECT DISINTERESTED EMPLOYERS
AGAINST DIRECT PRESSURES BY ANY UNION."  (FN3)  THE FINDINGS OF THE
BOARD, SUPPORTED BY SUBSTANTIAL EVIDENCE, WAS THAT LOCAL 113'S OBJECT
WAS TO INFLUENCE ARMSTRONG IN A DISPUTE WITH ARMSTRONG EMPLOYEES, AND
NOT FOR ITS EFFECT ELSEWHERE. 

PRIMARY EMPLOYEES HAVE TRADITIONALLY BEEN ASSURED THE RIGHT TO TAKE
CONCERTED ACTION AGAINST THEIR EMPLOYER TO GAIN THE "MUTUAL AID OR
PROTECTION" GUARANTEED BY SEC 7 OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, 61 STAT. 140, WHETHER OR NOT THE RESOLUTION OF THE PARTICULAR
DISPUTE DIRECTLY AFFECTS ALL OF THEM.  AS JUDGE LEARNED HAND STATED IN
LABOR BOARD V. PETER CAILLER KOHLER SWISS CHOCOLATES CO., 130 F.2D 503,
505-506: 

"WHEN ALL THE OTHER WORKMEN IN A SHOP MAKE COMMON CAUSE WITH A FELLOW
WORKMAN OVER HIS SEPARATE GRIEVANCE, AND GO OUT ON STRIKE IN HIS
SUPPORT, THEY ENGAGE IN A 'CONCERTED ACTIVITY' FOR 'MUTUAL AID OR
PROTECTION,' ALTHOUGH THE AGGRIEVED WORKMAN IS THE ONLY ONE OF THEM WHO
HAS ANY IMMEDIATE STAKE IN THE OUTCOME.  THE REST KNOW THAT BY THEIR
ACTION EACH ONE OF THEM ASSURES HIMSELF, IN CASE HIS TURN EVER COMES,
OF THE SUPPORT OF THE ONE WHOM THEY ARE ALL THEN HELPING; AND THE
SOLIDARITY SO ESTABLISHED IS 'MUTUAL AID' IN THE MOST LITERAL SENSE, AS
NOBODY DOUBTS." 

A BOYCOTT CANNOT BECOME SECONDARY BECAUSE ENGAGED IN BY PRIMARY
EMPLOYEES NOT DIRECTLY AFFECTED BY THE DISPUTE, OR BECAUSE ONLY ENGAGED
IN BY SOME OF THE PRIMARY EMPLOYEES, AND NOT THE ENTIRE GROUP.  SINCE
THAT SITUATION DOES NOT INVOLVE THE EMPLOYER IN A DISPUTE NOT HIS OWN,
HIS EMPLOYEES' CONDUCT IN SUPPORT OF THEIR FELLOW EMPLOYEES IS NOT
SECONDARY AND, THEREFORE, NOT A VIOLATION OF SEC. 8(B)(4)(B). 

THE JUDGMENT OF THE COURT OF APPEALS IN NO. 206 IS AFFIRMED AND IN
NO. 413, IS REVERSED.  IT IS SO ORDERED. 

FN1  THE ASSOCIATION DID NOT CHARGE THE UNION WITH VIOLATION OF SEC.
8(E)(73 STAT. 543), AND THE VALIDITY OF THE WORK-PRESERVATION CLAUSE
WAS NOT AN ISSUE IN THE HEARING BEFORE THE BOARD.  BUT THE BOARD
APPEARS TO HAVE ASSUMED THAT THE CLAUSE WAS VALID IN HOLDING THAT THE
OBJECT OF THE UNION'S CONDUCT PURSUANT THERETO WAS A PRIMARY ONE OF
WORK PRESERVATION.  THE COURT OF APPEALS EXPRESSLY HELD, AS AN ASPECT
OF ITS FINDING THAT SEC. 8(B)(4)(B) WAS NOT VIOLATED BY LOCAL 22'S
ACTIVITIES, THAT THE CLAUSE WAS VALID.  357 F.2D, AT 188-189. 

FN2  A MITERED FITTING IS DESCRIBED BY THE PRESIDENT OF THORPE
COMPANY AS "AN INSULATION ITEM THAT IS USED TO COVER SOMETHING OTHER
THAN A STRAIGHT PIECE OF PIPE IN A PIPE LINE, AND THIS IS MADE BY
TAKING STANDARD INSULATION PIPE COVERING AND CUTTING IT ON A BIAS OR
MITER AND THEN GLUING IT TOGETHER OR STICKING IT TOGETHER SO THAT IT
WILL CONFORM TO THE FITTING THAT YOU ARE TRYING TO SHAPE IT TO." 

FN3  UNITED ASSOCIATION OF JOURNEYMEN, LOCAL 106 (COLUMBIA-SOUTHERN
CHEMICAL CORPORATION), 110 N.L.R.B. 206, 209. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK, AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS EXPRESSED IN MR. JUSTICE
STEWART'S DISSENTING OPINION IN NATIONAL WOODWORK MFRS.  ASSN.  V.
NLRB, ANTE, P. 650. 
..END :
















THORPE V. HOUSING AUTHORITY 386 U.S. 670 


NO. 712.  ARGUED MARCH 21, 1967.  - DECIDED APRIL 17, 1967.  - 267 N.C.
431, 148 S.E.2D 290, VACATED AND REMANDED. 


PETITIONER WAS A TENANT IN A FEDERALLY ASSISTED PUBLIC HOUSING PROJECT
IN DURHAM, WITH A LEASE PROVIDING FOR A MONTH-TO-MONTH TENANCY
TERMINABLE BY EITHER PARTY ON 15 DAYS' NOTICE.  THE DAY FOLLOWING HER
ELECTION AS PRESIDENT OF A TENANTS' ORGANIZATION SHE WAS GIVEN A NOTICE
OF CANCELLATION OF HER LEASE WITH NO REASONS STATED.  RESPONDENT DID
NOT ACCEDE TO HER DEMANDS FOR AN EXPLANATION BUT BROUGHT AN EJECTMENT
ACTION WHEN SHE REFUSED TO VACATE THE PREMISES.  AN EVICTION JUDGMENT
WAS AFFIRMED BY THE NORTH CAROLINA SUPREME COURT DESPITE PETITIONER'S
CONTENTION THAT SHE WAS CONSTITUTIONALLY ENTITLED TO NOTICE CONTAINING
THE REASONS FOR CANCELLATION AND A HEARING THEREON, AND HER SUGGESTION
THAT THE EVICTION WAS INVALID BECAUSE IT WAS BASED ON HER
CONSTITUTIONALLY PROTECTED ASSOCIATIONAL ACTIVITIES.  FOLLOWING THE
GRANT OF CERTIORARI, THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
ISSUED A DIRECTIVE TO LOCAL HOUSING AUTHORITIES REQUIRING THAT TENANTS
BE GIVEN THE REASONS FOR EVICTION AND AN OPPORTUNITY TO REPLY OR
EXPLAIN, AND THAT RECORDS BE KEPT OF EVICTIONS, THE REASONS THEREFOR,
AND SUMMARIES OF CONFERENCES WITH TENANTS IN CONNECTION THEREWITH. 
HELD:  SINCE THIS CASE WOULD ASSUME A DIFFERENT POSTURE IF THE
PROCEDURE IN THE DIRECTIVE WERE FOLLOWED, THE JUDGMENT IS VACATED AND
THE CASE REMANDED FOR SUCH FURTHER PROCEEDINGS AS MAY BE APPROPRIATE IN
LIGHT OF THE DIRECTIVE. 

THORPE V. HOUSING AUTHORITY OF THE CITY OF DURHAM. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

IN NOVEMBER 1964, THE PETITIONER BECAME A TENANT IN MCDOUGALD TERRACE,
A FEDERALLY ASSISTED, LOW-RENT PUBLIC HOUSING PROJECT OWNED AND MANAGED
BY THE HOUSING AUTHORITY OF THE CITY OF DURHAM, NORTH CAROLINA.   THE
LEASE PROVIDED FOR A TENANCY FROM MONTH TO MONTH, AND GAVE BOTH THE
TENANT AND THE AUTHORITY THE RIGHT TO TERMINATE BY GIVING NOTICE AT
LEAST 15 DAYS BEFORE THE END OF ANY MONTHLY TERM.  ON AUGUST 10, 1965,
THE PETITIONER WAS ELECTED PRESIDENT OF A MCDOUGALD TERRACE TENANTS'
ORGANIZATION.  THE NEXT DAY THE AUTHORITY GAVE HER NOTICE OF
TERMINATION OF HER TENANCY AS OF AUGUST 31.  THE NOTICE DID NOT GIVE
ANY REASONS FOR THE CANCELLATION, AND THE AUTHORITY DECLINED TO ACCEDE
TO THE PETITIONER'S DEMANDS FOR AN EXPLANATION.  THE PETITIONER REFUSED
TO VACATE THE PREMISES, AND THE AUTHORITY THEREUPON BROUGHT A SUMMARY
EJECTMENT ACTION IN THE JUSTICE OF THE PEACE COURT IN DURHAM.  THE
AUTHORITY THERE OBTAINED A JUDGMENT OF EVICTION, WHICH WAS AFFIRMED ON
APPEAL BY THE SUPERIOR COURT OF DURHAM COUNTY AND THE SUPREME COURT OF
NORTH CAROLINA.  (FN1)  WE GRANTED CERTIORARI.  385 U.S. 967.  THE
PETITIONER HAS REMAINED IN POSSESSION OF HER APARTMENT PURSUANT TO A
STAY GRANTED BY THE NORTH CAROLINA SUPREME COURT. 

THE PETITIONER CONTENDS THAT SHE WAS CONSTITUTIONALLY ENTITLED TO
NOTICE SETTING FORTH THE REASONS FOR THE TERMINATION OF HER LEASE, AND
A HEARING THEREON.  SHE ALSO SUGGESTS THAT HER EVICTION WAS INVALID
BECAUSE IT ALLEGEDLY WAS BASED ON HER PARTICIPATION IN CONSTITUTIONALLY
PROTECTED ASSOCIATIONAL ACTIVITIES.  (FN2)  WE FIND IT UNNECESSARY TO
REACH THE LARGE ISSUES STIRRED BY THESE CLAIMS, BECAUSE OF A
SIGNIFICANT DEVELOPMENT THAT HAS OCCURRED SINCE WE GRANTED THE WRIT OF
CERTIORARI. 

ON FEBRUARY 7, 1967, THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
ISSUED A DIRECTIVE TO LOCAL HOUSING AUTHORITIES.  AFTER RECITING THE
FACT THAT DISSATISFACTION HAD BEEN EXPRESSED WITH EVICTION PROCEDURES
IN LOW-RENT HOUSING PROJECTS AND THAT SUITS HAD BEEN BROUGHT TO
CHALLENGE EVICTIONS IN WHICH THE LOCAL AUTHORITY HAD NOT GIVEN ANY
REASON FOR ITS ACTION, THE CIRCULAR STATED: 

"SINCE THIS IS A FEDERALLY ASSISTED PROGRAM, WE BELIEVE IT IS
ESSENTIAL THAT NO TENANT BE GIVEN NOTICE TO VACATE WITHOUT BEING TOLD
BY THE LOCAL AUTHORITY, IN A PRIVATE CONFERENCE OR OTHER APPROPRIATE
MANNER, THE REASONS FOR THE EVICTION, AND GIVEN AN OPPORTUNITY TO MAKE
SUCH REPLY OR EXPLANATION AS HE MAY WISH." 

THE CIRCULAR GOES ON TO REQUIRE LOCAL AUTHORITIES TO KEEP FUTURE
RECORDS OF EVICTIONS, THE REASONS THEREFOR, AND SUMMARIES OF ANY
CONFERENCES HELD WITH TENANTS IN CONNECTION WITH EVICTIONS.  (FN3) 

WHILE THE DIRECTIVE PROVIDES THAT CERTAIN RECORDS SHALL BE KEPT
COMMENCING WITH THE DATE OF ITS ISSUANCE, THERE IS NO SUGGESTION THAT
THE BASIC PROCEDURE IT PRESCRIBES IS NOT TO BE FOLLOWED IN ALL EVICTION
PROCEEDINGS THAT HAVE NOT BECOME FINAL.  IF THIS PROCEDURE WERE
ACCORDED TO THE PETITIONER, HER CASE WOULD ASSUME A POSTURE QUITE
DIFFERENT FROM THE ONE NOW PRESENTED.  (FN4)  COMPARE WABASH R. CO. V.
PUBLIC SERVICE COMM'N, 273 U.S. 126, 131; PATTERSON V. ALABAMA, 294
U.S. 600, 607; KLAPPROTT V. UNITED STATES, 335 U.S. 601. 

THE JUDGMENT OF THE SUPREME COURT OF NORTH CAROLINA IS ACCORDINGLY
VACATED, AND THE CASE REMANDED FOR SUCH FURTHER PROCEEDINGS AS MAY BE
APPROPRIATE IN THE LIGHT OF THE FEBRUARY 7 CIRCULAR OF THE DEPARTMENT
OF HOUSING AND URBAN DEVELOPMENT.  IT IS SO ORDERED. 

FN1  267 N.C. 431, 148 S.E.2D 290. 

FN2  IN THE SUPERIOR COURT PROCEEDINGS, IT WAS STIPULATED AND AGREED:
"THAT IF MR. C.S. OLDHAM, THE EXECUTIVE DIRECTOR OF THE HOUSING
AUTHORITY OF THE CITY OF DURHAM, WERE PRESENT AND DULY SWORN AND WERE
TESTIFYING, HE WOULD TESTIFY THAT WHATEVER REASON THERE MAY HAVE BEEN,
IF ANY, FOR GIVING NOTICE TO JOYCE C. THORPE OF THE TERMINATION OF HER
LEASE, IT WAS NOT FOR THE REASON THAT SHE WAS ELECTED PRESIDENT OF ANY
GROUP ORGANIZED IN MCDOUGALD TERRACE, AND SPECIFICALLY IT WAS NOT FOR
THE REASON THAT SHE WAS ELECTED PRESIDENT OF ANY GROUP ORGANIZED IN
MCDOUGALD TERRACE ON AUGUST 10, 1965  ...  ." 

FN3  THE TEXT OF THE CIRCULAR IS AS FOLLOWS: 

"SUBJECT:  TERMINATION OF TENANCY IN LOW-RENT PROJECTS. 

"WITHIN THE PAST YEAR INCREASING DISSATISFACTION HAS BEEN EXPRESSED
WITH EVICTION PRACTICES IN PUBLIC LOW-RENT HOUSING PROJECTS.  DURING
THAT PERIOD A NUMBER OF SUITS HAVE BEEN FILED THROUGHOUT THE UNITED
STATES GENERALLY CHALLENGING THE RIGHT OF A LOCAL AUTHORITY TO EVICT A
TENANT WITHOUT ADVISING HIM OF THE REASONS FOR SUCH EVICTION. 

"SINCE THIS IS A FEDERALLY ASSISTED PROGRAM, WE BELIEVE IT IS
ESSENTIAL THAT NO TENANT BE GIVEN NOTICE TO VACATE WITHOUT BEING TOLD
BY THE LOCAL AUTHORITY, IN A PRIVATE CONFERENCE OR OTHER APPROPRIATE
MANNER, THE REASONS FOR THE EVICTION, AND GIVEN AN OPPORTUNITY TO MAKE
SUCH REPLY OR EXPLANATION AS HE MAY WISH. 

"IN ADDITION TO INFORMING THE TENANT OF THE REASONS) FOR ANY PROPOSED
EVICTION ACTION, FROM THIS DATE EACH LOCAL AUTHORITY SHALL MAINTAIN A
WRITTEN RECORD OF EVERY EVICTION FROM ITS FEDERALLY ASSISTED PUBLIC
HOUSING.  SUCH RECORDS ARE TO BE AVAILABLE FOR REVIEW FROM TIME TO TIME
BY HUD REPRESENTATIVES AND SHALL CONTAIN THE FOLLOWING INFORMATION: 

"1.  NAME OF TENANT AND IDENTIFICATION OF UNIT OCCUPIED. 

"2.  DATE OF NOTICE TO VACATE. 

"3.  SPECIFIC REASONS) FOR NOTICE TO VACATE.  FOR EXAMPLE, IF A
TENANT IS BEING EVICTED BECAUSE OF UNDESIRABLE ACTIONS, THE RECORD
SHOULD DETAIL THE ACTIONS WHICH RESULTED IN THE DETERMINATION THAT
EVICTION SHOULD BE INSTITUTED. 

"4.  DATE AND METHOD OF NOTIFYING TENANT WITH SUMMARY OF ANY
CONFERENCES WITH TENANT, INCLUDING NAMES OF CONFERENCE PARTICIPANTS. 

"5.  DATE AND DESCRIPTION OF FINAL ACTION TAKEN. 

"THE CIRCULAR ON THE ABOVE SUBJECT FROM THE PHA COMMISSIONER, DATED
MAY 31, 1966, IS SUPERSEDED BY THIS CIRCULAR. 

"(S) DON HUMMEL 

"ASSISTANT SECRETARY FOR RENEWAL 

"AND HOUSING ASSISTANCE" 

THE SUPERSEDED CIRCULAR OF MAY 31, 1966, STATED THAT THE FEDERAL
AUTHORITIES "STRONGLY URGE, AS A MATTER OF GOOD SOCIAL POLICY, THAT
LOCAL AUTHORITIES IN A PRIVATE CONFERENCE INFORM ANY TENANTS WHO ARE
GIVEN EVICTION NOTICES OF THE REASONS FOR THIS ACTION." 

FN4  ALTHOUGH THE CIRCULAR DOES NOT SPECIFY THE AUTHORITY UNDER WHICH
IT IS ISSUED, FEDERAL AUTHORITIES ARE GIVEN GENERAL STATUTORY POWER TO
MAKE "SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT"
FEDERAL PROGRAMS FOR ASSISTANCE TO LOW-RENT HOUSING PROJECTS.  UNITED
STATES HOUSING ACT OF 1937, SEC 8, 50 STAT. 891, AS AMENDED, 42 U.S.C.
SEC 1408.  THE LEGAL EFFECT OF THE CIRCULAR, THE EXTENT TO WHICH IT
BINDS LOCAL HOUSING AUTHORITIES, AND WHETHER IT IS IN FACT APPLICABLE
TO THE PETITIONER ARE QUESTIONS WE DO NOT NOW DECIDE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

PETITIONER AND HER CHILDREN HAVE BEEN TENANTS IN A LOW-INCOME HOUSING
PROJECT CONSTRUCTED WITH FEDERAL AND STATE FUNDS AND OPERATED BY THE
HOUSING AUTHORITY OF THE CITY OF DURHAM, AN AGENCY OF THE STATE OF
NORTH CAROLINA.  THE HOUSING AUTHORITY WAS ESTABLISHED UNDER STATE LAW
AND IS "A PUBLIC BODY AND A BODY CORPORATE AND POLITIC, EXERCISING
PUBLIC POWERS."  N.C. GEN. STAT. SEC 157-9 (1964).  IT HAS "ALL THE
POWERS NECESSARY OR CONVENIENT TO CARRY OUT AND EFFECTUATE THE PURPOSES
AND PROVISIONS" OF THE NORTH CAROLINA HOUSING AUTHORITIES LAW (N.C.
GEN. STAT. SEC. 157-1 ET SEQ. (1964)), INCLUDING THE POWERS "TO MANAGE
AS AGENT OF ANY CITY OR MUNICIPALITY  ...  ANY HOUSING PROJECT
CONSTRUCTED OR OWNED BY SUCH CITY" AND "TO ACT AS AGENT FOR THE FEDERAL
GOVERNMENT IN CONNECTION WITH THE ACQUISITION, CONSTRUCTION, OPERATION
AND/OR MANAGEMENT OF A HOUSING PROJECT."  ID., SEC 157-9 (1964). 

THE LEASE UNDER WHICH PETITIONER HAS OCCUPIED THE PROJECT HAD AN
INITIAL TERM FROM NOVEMBER 11 TO NOVEMBER 30, 1964, AND PROVIDED THAT
IT WOULD BE AUTOMATICALLY RENEWED THEREAFTER FOR SUCCESSIVE TERMS OF
ONE MONTH, PROVIDED THERE WERE NO CHANGES IN INCOME OR FAMILY
COMPOSITION AND NO VIOLATIONS OF THE LEASE TERMS.  THE LEASE PROVIDES
THAT "THE MANAGEMENT MAY TERMINATE THIS LEASE BY GIVING TO THE TENANT
NOTICE IN WRITING OF SUCH TERMINATION FIFTEEN  ...  DAYS PRIOR TO THE
LAST DAY OF THE TERM."  THE LEASE "SHALL BE AUTOMATICALLY TERMINATED AT
THE OPTION OF THE MANAGEMENT" WITH AN IMMEDIATE RIGHT OF RE-ENTRY AND
ALL NOTICES REQUIRED BY LAW WAIVED, IF THE TENANT MISREPRESENTS A
MATERIAL FACT IN HIS APPLICATION OR IF "THE TENANT FAILS TO COMPLY WITH
ANY OF THE PROVISIONS OF THE LEASE." 

AS I HAVE SAID, PETITIONER AND HER CHILDREN MOVED INTO THEIR HOME IN
THE PROJECT ON NOVEMBER 11, 1964.  ALL APPARENTLY WENT WELL FOR EIGHT
MONTHS; THE RECORD REVEALS NO COMPLAINTS FROM THE MANAGER OF THE
HOUSING PROJECT.  ON AUGUST 10, 1965, PETITIONER WAS ELECTED PRESIDENT
OF THE PARENTS' CLUB, A GROUP COMPOSED OF TENANTS OF THE HOUSING
PROJECT.  ON AUGUST 11, 1965, THE HOUSING AUTHORITY'S EXECUTIVE
DIRECTOR DELIVERED A NOTICE THAT PETITIONER'S LEASE WOULD BE CANCELLED
EFFECTIVE AUGUST 31, AT WHICH TIME SHE WOULD HAVE TO VACATE THE
PREMISES.  NO REASONS WERE GIVEN FOR THE SUDDEN CANCELLATION.  THE
AUTHORITY MERELY REFERRED TO THE PROVISION OF THE LEASE STATING THAT
MANAGEMENT MAY TERMINATE THE LEASE BY GIVING THE TENANT NOTICE OF 15
DAYS PRIOR TO THE LAST DAY OF THE TERM. 

PETITIONER REQUESTED A HEARING TO DETERMINE THE REASON FOR THE
TERMINATION; THE REQUEST WAS SUMMARILY DENIED.  SINCE SHE WAS GIVEN NO
REASON AND NO HEARING, PETITIONER BROUGHT A SUMMARY EJECTMENT ACTION IN
THE JUSTICE OF THE PEACE COURT OF DURHAM; THE COURT ORDERED THAT
PETITIONER AND HER FAMILY BE REMOVED FROM THEIR HOME.  PETITIONER
APPEALED TO THE SUPERIOR COURT.  IT WAS STIPULATED THAT THE SUPERIOR
COURT COULD MAKE FINDINGS AND DECIDE THE CASE ON THE BASIS OF THE
STIPULATIONS AND AFFIDAVITS.  PETITIONER'S MOTION TO QUASH CLAIMED THAT
HER "EVICTION PRIMARILY RESULTED FROM HER COMMUNITY ACTIVITIES AS AN
ORGANIZER OF TENANTS, THUS CONSTITUTING AN UNCONSTITUTIONAL ABRIDGEMENT
OF HER FREEDOM OF EXPRESSION AND A DENIAL OF EQUAL PROTECTION OF THE
LAWS."  HER AFFIDAVIT ALLEGED "THAT HER EVICTION WAS PROMPTED BY THE
MANAGER OF THE HOUSING AUTHORITY, WHO WANTS TO GET HER OUT OF THE
PROJECT BECAUSE OF HER EFFORTS TO ORGANIZE THE TENANTS OF THE HOUSING
PROJECT  ...  ."  IT WAS STIPULATED THAT THE EXECUTIVE DIRECTOR OF THE
HOUSING AUTHORITY WOULD TESTIFY THAT "WHATEVER REASON THERE MAY HAVE
BEEN, IF ANY, FOR GIVING NOTICE TO PETITIONER OF THE TERMINATION OF HER
LEASE, IT WAS NOT FOR THE REASON THAT SHE WAS ELECTED PRESIDENT OF ANY
GROUP ORGANIZED IN THE HOUSING PROJECT  ...  ."  THE SUPERIOR COURT
FOUND THAT PETITIONER HAD NOT BEEN EVICTED DUE TO HER EFFORTS TO
ORGANIZE THE TENANTS NOR DUE TO HER ELECTION AS PRESIDENT OF THE
PARENTS' CLUB.  THE COURT HELD THAT THE HOUSING AUTHORITY WAS NOT
REQUIRED TO GIVE PETITIONER A HEARING AND WAS NOT REQUIRED TO GIVE ANY
REASON FOR THE LEASE TERMINATION. 

THE NORTH CAROLINA SUPREME COURT AFFIRMED.  267 N.C. 431, 148 S.E.2D
290.  IT HELD THAT THE HOUSING AUTHORITY IS THE "OWNER" OF THE
APARTMENT AND THAT PETITIONER "HAS NO RIGHT TO OCCUPY IT EXCEPT INSOFAR
AS SUCH RIGHT IS CONFERRED UPON HER BY THE WRITTEN LEASE WHICH SHE AND
THE HOUSING AUTHORITY SIGNED."  ID., AT 433, 148 S.E.2D, AT 291.  SINCE
PETITIONER HAD REFUSED TO QUIT AFTER THE HOUSING AUTHORITY TERMINATED
THE LEASE, SHE COULD BE EVICTED SO AS TO RESTORE TO THE AUTHORITY "THE
POSSESSION OF THAT WHICH BELONGS TO IT."  ID., AT 433, 148 S.E.2D, AT
291-292.  THE COURT THOUGHT IT "IMMATERIAL WHAT MAY HAVE BEEN THE
REASON FOR THE LESSOR'S UNWILLINGNESS TO CONTINUE THE RELATIONSHIP OF
LANDLORD AND TENANT  ...  ."  ID., AT 433, 148 S.E.2D, AT 292.  UNDER
THE RATIONALE OF THE NORTH CAROLINA SUPREME COURT, A PUBLIC HOUSING
AUTHORITY, ORGANIZED UNDER STATE LAW AND OPERATING A HOUSING PROJECT
FINANCED BY FEDERAL AND STATE FUNDS, IS ASSIMILATED TO THE POSITION OF
A PRIVATE PROPERTY OWNER WHO CAN TERMINATE A LEASE FOR ANY REASON OR NO
REASON AT ALL. 

THE CIRCULAR UPON WHICH THE COURT BASES ITS DECISION TO VACATE AND
REMAND COMES FROM THE OFFICE OF THE ASSISTANT SECRETARY FOR RENEWAL AND
HOUSING ASSISTANCE AND WAS ISSUED FEBRUARY 7, 1967, AFTER WE GRANTED
CERTIORARI.  IT IS DIRECTED TO "LOCAL HOUSING AUTHORITIES, ASSISTANT
REGIONAL ADMINISTRATORS FOR HOUSING ASSISTANCE, AND HAA DIVISION AND
BRANCH HEADS" AND READS IN PART: 

"SINCE THIS IS A FEDERALLY ASSISTED PROGRAM, WE BELIEVE IT IS
ESSENTIAL THAT NO TENANT BE GIVEN NOTICE TO VACATE WITHOUT BEING TOLD
BY THE LOCAL AUTHORITY, IN A PRIVATE CONFERENCE OR OTHER APPROPRIATE
MANNER, THE REASONS FOR THE EVICTION, AND GIVEN AN OPPORTUNITY TO MAKE
SUCH REPLY OR EXPLANATION AS HE MAY WISH." 

IT GOES ON TO PROVIDE THAT "IN ADDITION TO INFORMING THE TENANT OF
THE REASONS) FOR ANY PROPOSED EVICTION ACTION, FROM THIS DATE EACH
LOCAL AUTHORITY SHALL MAINTAIN A WRITTEN RECORD OF EVERY EVICTION FROM
ITS FEDERALLY ASSISTED PUBLIC HOUSING," SPECIFIES THE INFORMATION TO BE
CONTAINED IN THE RECORD AND PROVIDES THAT THE RECORDS ARE TO BE
AVAILABLE TO HUD REPRESENTATIVES FOR REVIEW.    THIS CIRCULAR
SUPERSEDED A PRIOR CIRCULAR WHICH STATED THAT THE PUBLIC HOUSING
ADMINISTRATION "STRONGLY URGES, AS A MATTER OF GOOD SOCIAL POLICY, THAT
LOCAL AUTHORITIES IN A PRIVATE CONFERENCE INFORM ANY TENANTS WHO ARE
GIVEN NOTICES TO VACATE OF THE REASONS FOR THIS ACTION." 

THIS CASE PRESENTS TWO ISSUES, NEITHER OF WHICH IS RESOLVED BY THE
CIRCULAR.  THE FIRST IS WHETHER A TENANT IN A PUBLICLY ASSISTED HOUSING
PROJECT OPERATED BY A STATE AGENCY CAN BE EVICTED FOR ANY REASON OR NO
REASON AT ALL.  THE SECOND IS WHETHER A TENANT IN SUCH A HOUSING
PROJECT CAN BE EVICTED FOR THE EXERCISE OF A FIRST AMENDMENT RIGHT. 

THE CIRCULAR MERELY PROVIDES THAT THE TENANT BE TOLD "THE REASONS FOR
THE EVICTION, AND BE GIVEN AN OPPORTUNITY TO MAKE SUCH REPLY OR
EXPLANATION AS HE MAY WISH."  FROM THIS IT MAY BE INFERRED THAT THE
HOUSING AUTHORITY MUST HAVE A REASON FOR THE EVICTION.  BUT THE
CIRCULAR DOES NOT SPECIFICALLY STATE THE REASONS WHICH CAN SUPPORT
EVICTION; IT DOES NOT STATE THAT A TENANT CANNOT BE EVICTED FOR HIS
STAND ON CIVIL RIGHTS; IT DOES NOT EVEN BROACH THE SUBJECT.  IT IS
ARGUED THAT THE CIRCULAR PROVIDES THAT THE LEASE CAN BE TERMINATED ONLY
AFTER AN ADMINISTRATIVE HEARING.  IT CERTAINLY WOULD BE DESIRABLE IF A
HOUSING AUTHORITY HELD A HEARING PRIOR TO THE TERMINATION OF THE
LEASE.  THE CIRCULAR, WHICH MAY BE NO MORE THAN A PRESS RELEASE, DOES
NOT SO PROVIDE.  MOREOVER, IS THERE A CONSTITUTIONAL REQUIREMENT FOR AN
ADMINISTRATIVE HEARING WHERE, AS HERE, THE TENANT CAN HAVE A FULL
JUDICIAL HEARING WHEN THE AUTHORITY ATTEMPTS TO EVICT HIM THROUGH
JUDICIAL PROCESS?  PETITIONER HAS HAD A HEARING IN THE STATE COURTS. 
THE IMMEDIATE QUESTION IS WHAT REASONS CAN SUPPORT AN EVICTION AFTER
HEARING. 

OVER AND OVER AGAIN WE HAVE STRESSED THAT "THE NATURE AND THE THEORY
OF OUR INSTITUTIONS OF GOVERNMENT, THE PRINCIPLES UPON WHICH THEY ARE
SUPPOSED TO REST  ...  DO NOT MEAN TO LEAVE ROOM FOR THE PLAY AND
ACTION OF PURELY PERSONAL AND ARBITRARY POWER" (YICK WO V. HOPKINS, 118
U.S. 356, 369-370) AND THAT THE ESSENCE OF DUE PROCESS IS "THE
PROTECTION OF THE INDIVIDUAL AGAINST ARBITRARY ACTION."  OHIO BELL
TELEPHONE CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292, 302; SLOCHOWER
V. BOARD OF EDUCATION, 350 U.S. 551, 559.  ANY SUGGESTION TO THE
CONTRARY "RESEMBLES THE PHILOSOPHY OF FEUDAL TENURE."  REICH, THE NEW
PROPERTY, 73 YALE L.J. 733, 769.  IT IS NOT DISPOSITIVE TO MAINTAIN
THAT A PRIVATE LANDLORD MIGHT TERMINATE A LEASE AT HIS PLEASURE.  FOR
THIS IS GOVERNMENT WE ARE DEALING WITH, AND THE ACTIONS OF GOVERNMENT
ARE CIRCUMSCRIBED BY THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT. 
"THE GOVERNMENT AS LANDLORD IS STILL THE GOVERNMENT.  IT MUST NOT ACT
ARBITRARILY, FOR, UNLIKE PRIVATE LANDLORDS, IT IS SUBJECT TO THE
REQUIREMENTS OF DUE PROCESS OF LAW.  ARBITRARY ACTION IS NOT DUE
PROCESS."  RUDDER V. UNITED STATES, 96 U.S. APP. D.C. 329, 331, 226
F.2D 51, 53. 

THE RECIPIENT OF A GOVERNMENT BENEFIT, BE IT A TAX EXEMPTION (SPEISER
V. RANDALL, 357 U.S. 513), UNEMPLOYMENT COMPENSATION (SHERBERT V.
VERNER, 374 U.S. 398), PUBLIC EMPLOYMENT (SLOCHOWER V. BOARD OF
EDUCATION, 350 U.S. 551), A LICENSE TO PRACTICE LAW (SPEVACK V. KLEIN,
385 U.S. 511), OR A HOME IN A PUBLIC HOUSING PROJECT, CANNOT BE MADE TO
FORFEIT THE BENEFIT BECAUSE HE EXERCISES A CONSTITUTIONAL RIGHT.  IN
UNITED STATES V. CHICAGO, M., ST. P.&P.R. CO., 282 U.S. 311, 328-329,
THE COURT SAID THAT "THE RIGHT TO CONTINUE THE EXERCISE OF A PRIVILEGE
GRANTED BY THE STATE CANNOT BE MADE TO DEPEND UPON THE GRANTEE'S
SUBMISSION TO A CONDITION PRESCRIBED BY THE STATE WHICH IS HOSTILE TO
THE PROVISIONS OF THE FEDERAL CONSTITUTION."  THIS WAS IN THE TRADITION
OF FROST TRUCKING CO. V. RAILROAD COMM'N, 271 U.S. 583, 594, WHERE THE
COURT EMPHASIZED THAT "IF THE STATE MAY COMPEL THE SURRENDER OF ONE
CONSTITUTIONAL RIGHT AS A CONDITION OF ITS FAVOR, IT MAY, IN LIKE
MANNER, COMPEL A SURRENDER OF ALL.  IT IS INCONCEIVABLE THAT GUARANTIES
EMBEDDED IN THE CONSTITUTION OF THE UNITED STATES MAY THUS BE
MANIPULATED OUT OF EXISTENCE."  IN SPEISER V. RANDALL, SUPRA, AT 518,
WE RECOGNIZED THAT "TO DENY AN EXEMPTION TO CLAIMANTS WHO ENGAGE IN
CERTAIN FORMS OF SPEECH IS IN EFFECT TO PENALIZE THEM FOR SUCH SPEECH. 
ITS DETERRENT EFFECT IS THE SAME AS IF THE STATE WERE TO FINE THEM FOR
THIS SPEECH.  THE APPELLEES ARE PLAINLY MISTAKEN IN THEIR ARGUMENT
THAT, BECAUSE A TAX EXEMPTION IS A 'PRIVILEGE' OR 'BOUNTY,' ITS DENIAL
MAY NOT INFRINGE SPEECH."  NO MORE CAN A TENANT IN A PUBLIC HOUSING
PROJECT BE EVICTED FOR THE EXERCISE OF HER RIGHT OF ASSOCIATION, A
RIGHT PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS.  SEE, E.G.,
NAACP V. ALABAMA, 357 U.S. 449, 460; BATES V. LITTLE ROCK, 361 U.S.
516, 523; SHELTON V. TUCKER, 364 U.S. 479, 486; LOUISIANA V. NAACP, 366
U.S. 293, 296; NAACP V. BUTTON, 371 U.S. 415, 430-431. 

THIS DOES NOT MEAN THAT A PUBLIC HOUSING AUTHORITY IS POWERLESS TO
EVICT A TENANT.  A TENANT MAY BE EVICTED IF IT IS SHOWN THAT HE IS
DESTROYING THE FIXTURES, DEFACING THE WALLS, DISTURBING OTHER TENANTS
BY BOISTEROUS CONDUCT AND FOR A NUMBER OF OTHER REASONS WHICH IMPAIR
THE SUCCESSFUL OPERATION OF THE HOUSING PROJECT.  EVICTION FOR SUCH
REASONS WILL COMPLETELY PROTECT THE VIABILITY OF THE HOUSING PROJECT
WITHOUT MAKING THE TENANT A SERF WHO HAS A HOME AT THE PLEASURE OF THE
MANAGER OF THE PROJECT OR THE HOUSING AUTHORITY. 

HERE, THE SUPERIOR COURT FOUND THAT PETITIONER HAD NOT BEEN EVICTED
BECAUSE SHE HAD ENGAGED IN EFFORTS TO ORGANIZE THE TENANTS OF THE
HOUSING PROJECT OR BECAUSE SHE HAD BEEN ELECTED PRESIDENT OF THE
PARENTS' CLUB.  ON APPEAL TO THE NORTH CAROLINA SUPREME COURT,
PETITIONER CONTENDED THAT THE FINDING WAS ERRONEOUS.  THE STATE SUPREME
COURT DID NOT PASS ON THE FINDING OF THE SUPERIOR COURT SINCE IT
CONCLUDED THAT THE HOUSING AUTHORITY COULD TERMINATE THE LEASE AND
EVICT PETITIONER FOR ANY REASON.*  AS I HAVE SAID, IT IS ARGUED THAT
THE CIRCULAR OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ANSWERS
PETITIONER'S CLAIM THAT SHE WAS ENTITLED TO AN ADMINISTRATIVE HEARING
BEFORE HER LEASE WAS TERMINATED.  BUT PETITIONER HAS ALREADY HAD A
HEARING IN THE STATE COURTS.  AND THE STATUS OF THE CIRCULAR, WHETHER A
REGULATION OR ONLY A PRESS RELEASE, IS UNCERTAIN, AN UNCERTAINTY WHICH
THE COURT DOES NOT REMOVE.  VACATING AND REMANDING "FOR SUCH FURTHER
PROCEEDINGS AS MAY BE APPROPRIATE IN THE LIGHT OF THE  ...  CIRCULAR"
THEREFORE FURNISHES NO GUIDELINES FOR THE STATE COURTS ON REMAND, AND
DOES NOT DISPOSE OF THE BASIC ISSUE PRESENTED.  I WOULD VACATE AND
REMAND TO THE STATE COURTS TO DETERMINE THE PRECISE REASON WHY
PETITIONER WAS EVICTED AND WHETHER THAT REASON WAS WITHIN THE
PERMISSIBLE RANGE FOR STATE ACTION AGAINST THE INDIVIDUAL. 

*IN THE STATEMENT OF FACTS PRECEDING THE NAMES OF COUNSEL, THERE IS
AN ASSERTION THAT "THE SUPERIOR COURT MADE FINDINGS OF FACT, EACH OF
WHICH IS SUPPORTED BY STIPULATIONS OR BY THE EVIDENCE IN THE RECORD." 
267 N.C., AT 432, 148 S.E.2D, AT 290-291.  FOLLOWING THIS IS A
RECITATION OF THE FINDINGS OF THE SUPERIOR COURT, INCLUDING THE FINDING
THAT "WHATEVER MAY HAVE BEEN THE AUTHORITY'S REASON FOR TERMINATING THE
LEASE, IT WAS NEITHER THAT THE DEFENDANT HAD ENGAGED IN EFFORTS TO
ORGANIZE THE TENANTS OF THE HOUSING PROJECT NOR THAT SHE WAS ELECTED
PRESIDENT OF A GROUP WHICH WAS ORGANIZED IN THE HOUSING PROJECT  ...
."  ID., AT 432, 148 S.E.2D, AT 291.  MY BROTHER WHITE ARGUES THAT THIS
AMOUNTED TO AN AFFIRMANCE OF THE SUPERIOR COURT'S FINDING AS SUPPORTED
BY THE EVIDENCE.  BUT, TO ME, SUCH A CLAIM IS BELIED BY THE COURT'S
STATEMENT, IN THE BODY OF ITS OPINION, THAT IT WAS "IMMATERIAL WHAT MAY
HAVE BEEN THE REASON FOR THE LESSOR'S UNWILLINGNESS TO CONTINUE THE
RELATIONSHIP OF LANDLORD AND TENANT."  ID., AT 433, 148 S.E.2D, AT
292.  THIS INDICATES THAT THE NORTH CAROLINA SUPREME COURT DID NOT MAKE
AN INDEPENDENT REVIEW OF THE RECORD TO DETERMINE WHETHER THE SUPERIOR
COURT'S FINDING AS TO THE CAUSE OF EVICTION WAS SUPPORTED BY THE
EVIDENCE SINCE IT THOUGHT THE REASON FOR EVICTION IMMATERIAL. 

MR. JUSTICE WHITE, DISSENTING. 

I WOULD AGREE WITH MR. JUSTICE DOUGLAS THAT THERE ARE REASONS FOR
WHICH THE AUTHORITY COULD NOT TERMINATE PETITIONER'S LEASE AND THAT THE
GROUND ALLEGED BY THE PETITIONER TO BE THE CAUSE OF HER EVICTION IS ONE
OF THEM.  THE TRIAL COURT REJECTED PETITIONER'S ALLEGATIONS.  THIS
FINDING WAS AFFIRMED BY THE NORTH CAROLINA SUPREME COURT AS SUPPORTED
BY THE EVIDENCE ALTHOUGH IT DID SAY, ERRONEOUSLY I THINK, THAT THE
REASONS FOR THE EVICTION WERE "IMMATERIAL."* THERE COULD HAVE BEEN A
MORE ADEQUATE RECORD MADE AS TO THE BASIS FOR THE EVICTION BUT
PETITIONER WAS AFFORDED A FULL DUE PROCESS HEARING IN THE LOWER COURT
AND HAD THE OPPORTUNITY TO EXPLORE FULLY WHY SHE WAS EVICTED.  I DO NOT
VIEW THE FEDERAL CIRCULAR AS SIGNIFICANT TO THE RESOLUTION OF THIS
CASE, AND WOULD NOT REMAND ON THAT BASIS. 

*THE STATEMENT OF FACTS IN THE SUPREME COURT OPINION, UPON WHICH I
INDEED RELY, SEE FOOTNOTE OF MY BROTHER DOUGLAS' CONCURRING OPINION,
IS, AS I UNDERSTAND IT, PREPARED BY THE COURT AND IN NORTH CAROLINA IS
CONSIDERED OFFICIAL. 

I WOULD AFFIRM. 
..END :











LAVERNE V. LAUREL HOLLOW 386 U.S. 682 


NO. 984.  DECIDED APRIL 17, 1967.  - 18 N.Y.2D 635, 219 N.E.2D 294,
APPEAL DISMISSED. 


LAVERNE ET AL V. INCORPORATED VILLAGE OF LAUREL HOLLOW ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR THE
REASON THAT THE JUDGMENT SOUGHT TO BE REVIEWED RESTS UPON AN ADEQUATE
STATE GROUND. 
..END :
















WALKER V. ARKANSAS 386 U.S. 682 


NO. 1014.  DECIDED APRIL 17, 1967.  - 241 ARK. 300, 408 S.W.2D 905,
APPEAL DISMISSED AND CERTIORARI DENIED. 


WALKER V. ARKANSAS. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















STEWART V. INDUSTRIAL COMMISSION OF ILLINOIS 386 U.S. 683 


NO. 1034.  DECIDED APRIL 17, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


STEWART ET AL. V. INDUSTRIAL COMMISSION OF ILLINOIS ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 

TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A
WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














DACEY V. BAR OF FAIRFIELD COUNTY 386 U.S. 683 


NO. 1049.  DECIDED APRIL 17, 1967.  - 154 CONN. 129, 222 A.2D 339,
APPEAL DISMISSED. 


DACEY ET AL. V. GRIEVANCE COMMITTEE OF THE BAR OF FAIRFIELD COUNTY. 

APPEAL FROM THE SUPREME COURT OF CONNECTICUT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















MILLER BREWING CO. V. JONES 386 U.S. 684 


NO. 1067.  DECIDED APRIL 17, 1967.  - 35 ILL. 2D 86, 219 N.E.2D 494,
APPEAL DISMISSED. 


MILLER BREWING CO. V. JONES, DIRECTOR OF REVENUE OF ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















PIERSON V. RAY 386 U.S. 547 


NO. 79.  ARGUED JANUARY 11, 1967.  - DECIDED APRIL 11, 1967.* - 352 F.2D
213, AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

*TOGETHER WITH NO. 94, RAY ET AL. V. PIERSON ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 


PETITIONERS,** MEMBERS OF A GROUP OF WHITE AND NEGRO CLERGYMEN ON A
"PRAYER PILGRIMAGE" TO PROMOTE RACIAL INTEGRATION, ATTEMPTED TO USE A
SEGREGATED INTERSTATE BUS TERMINAL WAITING ROOM IN JACKSON,
MISSISSIPPI, IN 1961.  THEY WERE ARRESTED BY RESPONDENT POLICEMEN AND
CHARGED WITH CONDUCT BREACHING THE PEACE IN VIOLATION OF SEC 2087.5 OF
THE MISSISSIPPI CODE WHICH THIS COURT, IN 1965, HELD UNCONSTITUTIONAL
IN THOMAS V. MISSISSIPPI, 380 U.S. 524, AS APPLIED TO SIMILAR FACTS. 
PETITIONERS WAIVED A JURY TRIAL AND WERE CONVICTED BY RESPONDENT
MUNICIPAL POLICE JUSTICE.  ON APPEAL ONE PETITIONER WAS ACCORDED A
TRIAL DE NOVO AND, FOLLOWING A DIRECTED VERDICT IN HIS FAVOR, THE CASES
AGAINST THE OTHER PETITIONERS WERE DROPPED.  PETITIONERS THEN BROUGHT
THIS ACTION IN THE DISTRICT COURT FOR DAMAGES (1) UNDER 42 U.S.C. SEC
1983, WHICH MAKES LIABLE "EVERY PERSON" WHO UNDER COLOR OF LAW DEPRIVES
ANOTHER PERSON OF HIS CIVIL RIGHTS, AND (2) AT COMMON LAW FOR FALSE
ARREST AND IMPRISONMENT.  THE EVIDENCE SHOWED THAT THE MINISTERS
EXPECTED TO BE ARRESTED ON ENTERING A SEGREGATED AREA.  THOUGH THE
WITNESSES AGREED THAT PETITIONERS ENTERED THE WAITING ROOM PEACEFULLY,
PETITIONERS TESTIFIED THAT THERE WAS NO CROWD AT THE TERMINAL, WHEREAS
THE POLICE TESTIFIED THAT A THREATENING CROWD FOLLOWED PETITIONERS. 
THE JURY FOUND FOR RESPONDENTS.  ON APPEAL THE COURT OF APPEALS HELD
THAT (1) RESPONDENT POLICE JUSTICE HAD IMMUNITY FOR HIS JUDICIAL ACTS
UNDER BOTH SEC. 1983 AND THE STATE COMMON LAW AND (2) THE POLICEMEN HAD
IMMUNITY UNDER THE STATE COMMON LAW OF FALSE ARREST IF THEY HAD
PROBABLE CAUSE TO BELIEVE SEC 2087.5 VALID SINCE THEY WERE NOT REQUIRED
TO PREDICT WHAT LAWS ARE CONSTITUTIONAL, BUT THAT, BY VIRTUE OF MONROE
V. PAPE, 365 U.S. 167, THEY HAD NO SUCH IMMUNITY UNDER SEC. 1983 WHERE
THE STATE STATUTE WAS SUBSEQUENTLY DECLARED INVALID.  THE COURT
REMANDED THE CASE AGAINST THE OFFICERS FOR A NEW TRIAL UNDER SEC. 1983
BECAUSE OF PREJUDICIAL CROSS-EXAMINATION OF PETITIONERS, BUT RULED THAT
THEY COULD NOT RECOVER IF IT WERE SHOWN AT THE NEW TRIAL THAT THEY HAD
GONE TO MISSISSIPPI IN ANTICIPATION THAT THEY WOULD BE ILLEGALLY
ARRESTED.  HELD: 

**SEE N. 3, INFRA. 

1.  THE SETTLED COMMON-LAW PRINCIPLE THAT A JUDGE IS IMMUNE FROM
LIABILITY FOR DAMAGES FOR HIS JUDICIAL ACTS WAS NOT ABOLISHED BY SEC
1983.  CF. TENNEY V. BRANDHOVE, 341 U.S. 367.  PP. 553-555. 

2.  THE DEFENSE OF GOOD FAITH AND PROBABLE CAUSE WHICH IS AVAILABLE
TO POLICE OFFICERS IN A COMMON-LAW ACTION FOR FALSE ARREST AND
IMPRISONMENT IS ALSO AVAILABLE IN AN ACTION UNDER SEC 1983.  MONROE V.
PAPE, SUPRA, DISTINGUISHED.  PP. 555-557. 

3.  THOUGH THE OFFICERS WERE NOT REQUIRED TO PREDICT THIS COURT'S
RULING IN THOMAS V. MISSISSIPPI, SUPRA, THAT SEC 2087.5 WAS
UNCONSTITUTIONAL AS APPLIED, AND THE DEFENSE OF GOOD FAITH AND PROBABLE
CAUSE IS AVAILABLE IN AN ACTION UNDER SEC 1983, IT DOES NOT FOLLOW THAT
THE COUNT BASED THEREON SHOULD BE DISMISSED SINCE THE EVIDENCE WAS
CONFLICTING AS TO WHETHER THE POLICE HAD ACTED IN GOOD FAITH AND WITH
PROBABLE CAUSE IN ARRESTING THE PETITIONERS.  PP. 557-558. 

4.  PETITIONERS DID NOT CONSENT TO THEIR ARREST BY DELIBERATELY
EXERCISING THEIR RIGHT TO USE THE WAITING ROOM IN A PEACEFUL MANNER
WITH THE EXPECTATION THAT THEY WOULD BE ILLEGALLY ARRESTED.  P. 558. 

PIERSON ET AL. V. RAY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF COURT. 

THESE CASES PRESENT ISSUES INVOLVING THE LIABILITY OF LOCAL POLICE
OFFICERS AND JUDGES UNDER SEC 1 OF THE CIVIL RIGHTS ACT OF 1871, 17
STAT. 13, NOW 42 U.S SEC 1983.  (FN1)  PETITIONERS IN NO. 79 WERE
MEMBERS OF A GROUP OF 15 WHITE AND NEGRO EPISCOPAL CLERGYMEN WHO
ATTEMPTED TO USE SEGREGATED FACILITIES AT AN INTERSTATE BUS TERMINAL IN
JACKSON, MISSISSIPPI, IN 1961.  THEY WERE ARRESTED BY RESPONDENTS RAY,
GRIFFITH, AND NICHOLS, POLICEMEN OF THE CITY OF JACKSON, AND CHARGED
WITH VIOLATING SEC 2087.5 OF THE MISSISSIPPI CODE, WHICH MAKES GUILTY
OF A MISDEMEANOR ANYONE WHO CONGREGATES WITH OTHERS IN A PUBLIC PLACE
UNDER CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED
THEREBY, AND REFUSES TO MOVE ON WHEN ORDERED TO DO SO BY A POLICE
OFFICER.  (FN2)  PETITIONERS (FN3)  WAIVED A JURY TRIAL AND WERE
CONVICTED OF THE OFFENSE BY RESPONDENT SPENCER, A MUNICIPAL POLICE
JUSTICE.  THEY WERE EACH GIVEN THE MAXIMUM SENTENCE OF FOUR MONTHS IN
JAIL AND A FINE OF $200.  ON APPEAL PETITIONER JONES WAS ACCORDED A
TRIAL DE NOVO IN THE COUNTY COURT, AND AFTER THE CITY PRODUCED ITS
EVIDENCE THE COURT GRANTED HIS MOTION FOR A DIRECTED VERDICT.  THE
CASES AGAINST THE OTHER PETITIONERS WERE THEN DROPPED. 

HAVING BEEN VINDICATED IN THE COUNTY COURT, PETITIONERS BROUGHT THIS
ACTION FOR DAMAGES IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI, JACKSON DIVISON, ALLEGING THAT RESPONDENTS HAD
VIOLATED SEC 1983, SUPRA, AND THAT RESPONDENTS WERE LIABLE AT COMMON
LAW FOR FALSE ARREST AND IMPRISONMENT.  A JURY RETURNED VERDICTS FOR
RESPONDENTS ON BOTH COUNTS.  ON APPEAL, THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT HELD THAT RESPONDENT SPENCER WAS IMMUNE FROM LIABILITY
UNDER BOTH SEC 1983 AND THE COMMON LAW OF MISSISSIPPI FOR ACTS
COMMITTED WITHIN HIS JUDICIAL JURISDICTION.  352 F.2D 213.  AS TO THE
POLICE OFFICERS, THE COURT NOTED THAT SEC 2087.5 OF THE MISSISSIPPI
CODE WAS HELD UNCONSTITUTIONAL AS APPLIED TO SIMILAR FACTS IN THOMAS V.
MISSISSIPPI, 380 U.S. 524 (1965).  (FN4)  ALTHOUGH THOMAS WAS DECIDED
YEARS AFTER THE ARREST INVOLVED IN THIS TRIAL, THE COURT HELD THAT THE
POLICMEN WOULD BE LIABLE IN A SUIT UNDER SEC. 1983 FOR AN
UNCONSTITUTIONAL ARREST EVEN IF THEY ACTED IN GOOD FAITH AND WITH
PROBABLE CAUSE IN MAKING AN ARREST UNDER A STATE STATUTE NOT YET HELD
INVALID.  THE COURT BELIEVED THAT THIS STERN RESULT WAS REQUIRED BY
MONROE V. PAPE, 365 U.S. 167 (1961).  UNDER THE COUNT BASED ON THE
COMMON LAW OF MISSISSIPPI, HOWEVER, IT HELD THAT THE POLICEMEN WOULD
NOT BE LIABLE IF THEY HAD PROBABLE CAUSE TO BELIEVE THAT THE STATUTE
HAD BEEN VIOLATED, BECAUSE MISSISSIPPI LAW DOES NOT REQUIRE POLICE
OFFICERS TO PREDICT AT THEIR PERIL WHICH STATE LAWS ARE CONSTITUTIONAL
AND WHICH ARE NOT.  APPARENTLY DISMISSING THE COMMON-LAW CLAIM, (FN5)
THE COURT OF APPEALS REVERSED AND REMANDED FOR A NEW TRIAL ON THE SEC
1983 CLAIM AGAINST THE POLICE OFFICERS BECAUSE DEFENSE COUNSEL HAD BEEN
ALLOWED TO CROSS-EXAMINE THE MINISTERS ON VARIOUS IRRELEVANT AND
PREJUDICIAL MATTERS, PARTICULARLY INCLUDING AN ALLEGED CONVERGENCE OF
THEIR VIEWS ON RACIAL JUSTICE WITH THOSE OF THE COMMUNIST PARTY.  AT
THE NEW TRIAL, HOWEVER, THE COURT HELD THAT THE MINISTERS COULD NOT
RECOVER IF IT WERE PROVED THAT THEY WENT TO MISSISSIPPI ANTICIPATING
THAT THEY WOULD BE ILLEGALLY ARRESTED BECAUSE SUCH ACTION WOULD
CONSTITUTE CONSENT TO THE ARREST UNDER THE PRINCIPLE OF VOLENTI NON FIT
INJURIA, HE WHO CONSENTS TO A WRONG CANNOT BE INJURED. 

WE GRANTED CERTIORARI IN NO. 79 TO CONSIDER WHETHER A LOCAL JUDGE IS
LIABLE FOR DAMAGES UNDER SEC 1983 FOR AN UNCONSTITUTIONAL CONVICTION
AND WHETHER THE MINISTERS SHOULD BE DENIED RECOVERY AGAINST THE POLICE
OFFICERS IF THEY ACTED WITH THE ANTICIPATION THAT THEY WOULD BE
ILLEGALLY ARRESTED.  WE ALSO GRANTED THE POLICE OFFICERS' PETITION IN
NO. 94 TO DETERMINE IF THE COURT OF APPEALS CORRECTLY HELD THAT THEY
COULD NOT ASSERT THE DEFENSE OF GOOD FAITH AND PROBABLE CAUSE TO AN
ACTION UNDER SEC 1983 FOR UNCONSTITUTIONAL ARREST.  (FN6) 

THE EVIDENCE AT THE FEDERAL TRIAL SHOWED THAT PETITIONERS AND OTHER
NEGRO AND WHITE EPISCOPAL CLERGYMEN UNDERTOOK A "PRAYER PILGRIMAGE" IN
1961 FROM NEW ORLEANS TO DETROIT.  THE PURPOSE OF THE PILGRIMAGE WAS TO
VISIT CHURCH INSTITUTIONS AND OTHER PLACES IN THE NORTH AND SOUTH TO
PROMOTE RACIAL EQUALITY AND INTEGRATION, AND, FINALLY, TO REPORT TO A
CHURCH CONVENTION IN DETROIT.  LETTERS FROM THE LEADER OF THE GROUP TO
ITS MEMBERS INDICATE THAT THE CLERGYMEN INTENDED FROM THE BEGINNING TO
GO TO JACKSON AND ATTEMPT TO USE SEGREGATED FACILITIES AT THE BUS
TERMINAL THERE, AND THAT THEY FULLY EXPECTED TO BE ARRESTED FOR DOING
SO.  THE GROUP MADE PLANS BASED ON THE ASSUMPTION THAT THEY WOULD BE
ARRESTED IF THEY ATTEMPTED PEACEFULLY TO EXERCISE THEIR RIGHT AS
INTERSTATE TRAVELERS TO USE THE WAITING ROOMS AND OTHER FACILITIES AT
THE BUS TERMINAL, AND THE LETTERS DISCUSSED ARRANGEMENTS FOR BAIL AND
OTHER MATTERS RELEVANT TO ARRESTS. 

THE MINISTERS STAYED ONE NIGHT IN JACKSON, AND WENT TO THE BUS
TERMINAL THE NEXT MORNING TO DEPART FOR CHATTANOOGA, TENNESSEE.  THEY
ENTERED THE WAITING ROOM, DISOBEYING A SIGN AT THE ENTRANCE THAT
ANNOUNCED "WHITE WAITING ROOM ONLY - BY ORDER OF THE POLICE
DEPARTMENT."  THEY THEN TURNED TO ENTER THE SMALL TERMINAL RESTAURANT
BUT WERE STOPPED BY TWO JACKSON POLICE OFFICERS, RESPONDENTS GRIFFITH
AND NICHOLS, WHO HAD BEEN AWAITING THEIR ARRIVAL AND WHO ORDERED THEM
TO "MOVE ON."  THE MINISTERS REPLIED THAT THEY WANTED TO EAT, AND
REFUSED TO MOVE ON.  RESPONDENT RAY, THEN A POLICE CAPTAIN AND NOW THE
DEPUTY CHIEF OF POLICE, ARRIVED A FEW MINUTES LATER.  THE MINISTERS
WERE PLACED UNDER ARREST AND TAKEN TO THE JAIL. 

ALL WITNESSES INCLUDING THE POLICE OFFICERS AGREED THAT THE MINISTERS
ENTERED THE WAITING ROOM PEACEFULLY AND ENGAGED IN NO BOISTEROUS OR
OBJECTIONABLE CONDUCT WHILE IN THE "WHITE ONLY" AREA.  THERE WAS
CONFLICTING TESTIMONY ON THE NUMBER OF BYSTANDERS PRESENT AND THEIR
BEHAVIOR.  PETITIONERS TESTIFIED THAT THERE WAS NO CROWD AT THE
STATION, THAT NO ONE FOLLOWED THEM INTO THE WAITING ROOM, AND THAT NO
ONE UTTERED THREATENING WORDS OR MADE THREATENING GESTURES.  THE POLICE
TESTIFIED THAT SOME 25 TO 30 PERSONS FOLLOWED THE MINISTERS INTO THE
TERMINAL, THAT PERSONS IN THE CROWD WERE IN A VERY DISSATISFIED AND
UGLY MOOD, AND THAT THEY WERE MUMBLING AND MAKING UNSPECIFIED
THREATENING GESTURES.  THE POLICE DID NOT DESCRIBE ANY SPECIFIC
THREATENING INCIDENTS, AND TESTIFIED THAT THEY TOOK NO ACTION AGAINST
ANY PERSONS IN THE CROWD WHO WERE THREATENING VIOLENCE BECAUSE THEY
"HAD DETERMINED THAT THE MINISTERS WAS THE CAUSE OF THE VIOLENCE IF ANY
MIGHT OCCUR,"  (FN7)  ALTHOUGH THE MINISTERS WERE CONCEDEDLY ORDERLY
AND POLITE AND THE POLICE DID NOT CLAIM THAT IT WAS BEYOND THEIR POWER
TO CONTROL THE ALLEGEDLY DISORDERLY CROWD.  THE ARRESTS AND CONVICTIONS
WERE FOLLOWED BY THIS LAWSUIT. 

WE FIND NO DIFFICULTY IN AGREEING WITH THE COURT OF APPEALS THAT
JUDGE SPENCER IS IMMUNE FROM LIABILITY FOR DAMAGES FOR HIS ROLE IN
THESE CONVICTIONS.  THE RECORD IS BARREN OF ANY PROOF OR SPECIFIC
ALLEGATION THAT JUDGE SPENCER PLAYED ANY ROLE IN THESE ARRESTS AND
CONVICTIONS OTHER THAN TO ADJUDGE PETITIONERS GUILTY WHEN THEIR CASES
CAME BEFORE HIS COURT.  (FN8)  FEW DOCTRINES WERE MORE SOLIDLY
ESTABLISHED AT COMMON LAW THAN THE IMMUNITY OF JUDGES FROM LIABILITY
FOR DAMAGES FOR ACTS COMMITTED WITHIN THEIR JUDICIAL JURISDICTION, AS
THIS COURT RECOGNIZED WHEN IT ADOPTED THE DOCTRINE, IN BRADLEY V.
FISHER, 13 WALL.  335 (1872).  THIS IMMUNITY APPLIES EVEN WHEN THE
JUDGE IS ACCUSED OF ACTING MALICIOUSLY AND CORRUPTLY, AND IT "IS NOT
FOR THE PROTECTION OR BENEFIT OF A MALICIOUS OR CORRUPT JUDGE, BUT FOR
THE BENEFIT OF THE PUBLIC, WHOSE INTEREST IT IS THAT THE JUDGES SHOULD
BE AT LIBERTY TO EXERCISE THEIR FUNCTIONS WITH INDEPENDENCE AND WITHOUT
FEAR OF CONSEQUENCES."  (SCOTT V. STANSFIELD, L.R. 3 EX. 220, 223
(1868), QUOTED IN BRADLEY V. FISHER, SUPRA, 349, NOTE, AT 350.)  IT IS
A JUDGE'S DUTY TO DECIDE ALL CASES WITHIN HIS JURISDICTION THAT ARE
BROUGHT BEFORE HIM, INCLUDING CONTROVERSIAL CASES THAT AROUSE THE MOST
INTENSE FEELINGS IN THE LITIGANTS.  HIS ERRORS MAY BE CORRECTED ON
APPEAL, BUT HE SHOULD NOT HAVE TO FEAR THAT UNSATISFIED LITIGANTS MAY
HOUND HIM WITH LITIGATION CHARGING MALICE OR CORRUPTION.  IMPOSING SUCH
A BURDEN ON JUDGES WOULD CONTRIBUTE NOT TO PRINCIPLED AND FEARLESS
DECISION-MAKING BUT TO INTIMIDATION. 

WE DO NOT BELIEVE THAT THIS SETTLED PRINCIPLE OF LAW WAS ABOLISHED BY
SEC 1983, WHICH MAKES LIABLE "EVERY PERSON" WHO UNDER COLOR OF LAW
DEPRIVES ANOTHER PERSON OF HIS CIVIL RIGHTS.  THE LEGISLATIVE RECORD
GIVES NO CLEAR INDICATION THAT CONGRESS MEANT TO ABOLISH WHOLESALE ALL
COMMON-LAW IMMUNITIES.   ACCORDINGLY, THIS COURT HELD IN TENNEY V.
BRANDHOVE, 341 U.S. 367 (1951), THAT THE IMMUNITY OF LEGISLATORS FOR
ACTS WITHIN THE LEGISLATIVE ROLE WAS NOT ABOLISHED.  THE IMMUNITY OF
JUDGES FOR ACTS WITHIN THE JUDICIAL ROLE IS EQUALLY WELL ESTABLISHED,
AND WE PRESUME THAT CONGRESS WOULD HAVE SPECIFICALLY SO PROVIDED HAD IT
WISHED TO ABOLISH THE DOCTRINE.  (FN9) 

THE COMMON LAW HAS NEVER GRANTED POLICE OFFICERS AN ABSOLUTE AND
UNQUALIFIED IMMUNITY, AND THE OFFICERS IN THIS CASE DO NOT CLAIM THAT
THEY ARE ENTITLED TO ONE.  THEIR CLAIM IS RATHER THAT THEY SHOULD NOT
BE LIABLE IF THEY ACTED IN GOOD FAITH AND WITH PROBABLE CAUSE IN MAKING
AN ARREST UNDER A STATUTE THAT THEY BELIEVED TO BE VALID.  UNDER THE
PREVAILING VIEW IN THIS COUNTRY A PEACE OFFICER WHO ARRESTS SOMEONE
WITH PROBABLE CAUSE IS NOT LIABLE FOR FALSE ARREST SIMPLY BECAUSE THE
INNOCENCE OF THE SUSPECT IS LATER PROVED.  RESTATEMENT, SECOND, TORTS
SEC. 121 (1965); 1 HARPER & JAMES, THE LAW OF TORTS SEC. 3.18, AT 277
278 (1956); WARD V. FIDELITY & DEPOSIT CO. OF MARYLAND, 179 F.2D 327
(C.A. 8TH CIR. 1950).  A POLICEMAN'S LOT IS NOT SO UNHAPPY THAT HE MUST
CHOOSE BETWEEN BEING CHARGED WITH DERELICTION OF DUTY IF HE DOES NOT
ARREST WHEN HE HAS PROBABLE CAUSE, AND BEING MULCTED IN DAMAGES IF HE
DOES.  ALTHOUGH THE MATTER IS NOT ENTIRELY FREE FROM DOUBT,  (FN10)
THE SAME CONSIDERATION WOULD SEEM TO REQUIRE EXCUSING HIM FROM
LIABILITY FOR ACTING UNDER A STATUTE THAT HE REASONABLY BELIEVED TO BE
VALID BUT THAT WAS LATER HELD UNCONSTITUTIONAL, ON ITS FACE OR AS
APPLIED. 

THE COURT OF APPEALS HELD THAT THE OFFICERS HAD SUCH A LIMITED
PRIVILEGE UNDER THE COMMON LAW OF MISSISSIPPI,  (FN11)  AND INDICATED
THAT IT WOULD HAVE RECOGNIZED A SIMILAR PRIVILEGE UNDER SEC 1983 EXCEPT
THAT IT FELT COMPELLED TO HOLD OTHERWISE BY OUR DECISION IN MONROE V.
PAPE, 365 U.S. 167 (1961).  MONROE V. PAPE PRESENTED NO QUESTION OF
IMMUNITY, HOWEVER, AND NONE WAS DECIDED.  THE COMPLAINT IN THAT CASE
ALLEGED THAT "13 CHICAGO POLICE OFFICERS BROKE INTO PETITIONERS' HOME
IN THE EARLY MORNING, ROUTED THEM FROM BED, AND MADE THEM STAND NAKED
IN THE LIVING ROOM, AND RANSACKED EVERY ROOM, EMPTYING DRAWERS AND
RIPPING MATTRESS COVERS.  IT FURTHER ALLEGED THAT MR. MONROE WAS THEN
TAKEN TO THE POLICE STATION AND DETAINED ON 'OPEN' CHARGES FOR 10
HOURS, WHILE HE WAS INTERROGATED ABOUT A TWO-DAY-OLD MURDER, THAT HE
WAS NOT TAKEN BEFORE A MAGISTRATE, THOUGH ONE WAS ACCESSIBLE, THAT HE
WAS NOT PERMITTED TO CALL HIS FAMILY OR ATTORNEY, THAT HE WAS
SUBSEQUENTLY RELEASED WITHOUT CRIMINAL CHARGES BEING PREFERRED AGAINST
HIM."  365 U.S., AT 169.  THE POLICE OFFICERS DID NOT CHOOSE TO GO TO
TRIAL AND DEFEND THE CASE ON THE HOPE THAT THEY COULD CONVINCE A JURY
THAT THEY BELIEVED IN GOOD FAITH THAT IT WAS THEIR DUTY TO ASSAULT
MONROE AND HIS FAMILY IN THIS MANNER.  INSTEAD, THEY SOUGHT DISMISSAL
OF THE COMPLAINT, CONTENDING PRINCIPALLY THAT THEIR ACTIVITIES WERE SO
PLAINLY ILLEGAL UNDER STATE LAW THAT THEY DID NOT ACT "UNDER COLOR OF
ANY STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR
TERRITORY" AS REQUIRED BY SEC 1983.  IN REJECTING THIS ARGUMENT WE IN
NO WAY INTIMATED THAT THE DEFENSE OF GOOD FAITH AND PROBABLE CAUSE WAS
FORECLOSED BY THE STATUTE.  WE ALSO HELD THAT THE COMPLAINT SHOULD NOT
BE DISMISSED FOR FAILURE TO STATE THAT THE OFFICERS HAD "A SPECIFIC
INTENT TO DEPRIVE A PERSON OF A FEDERAL RIGHT," BUT THIS HOLDING, WHICH
RELATED TO REQUIREMENTS OF PLEADING, CARRIED NO IMPLICATIONS AS TO
WHICH DEFENSES WOULD BE AVAILABLE TO THE POLICE OFFICERS.  AS WE WENT
ON TO SAY IN THE SAME PARAGRAPH, SEC 1983 "SHOULD BE READ AGAINST THE
BACKGROUND OF TORT LIABILITY THAT MAKES A MAN RESPONSIBLE FOR THE
NATURAL CONSEQUENCES OF HIS ACTIONS."  365 U.S., AT 187.  PART OF THE
BACKGROUND OF TORT LIABILITY, IN THE CASE OF POLICE OFFICERS MAKING AN
ARREST, IS THE DEFENSE OF GOOD FAITH AND PROBABLE CAUSE. 

WE HOLD THAT THE DEFENSE OF GOOD FAITH AND PROBABLE CAUSE, WHICH THE
COURT OF APPEALS FOUND AVAILABLE TO THE OFFICERS IN THE COMMON-LAW
ACTION FOR FALSE ARREST AND IMPRISONMENT, IS ALSO AVAILABLE TO THEM IN
THE ACTION UNDER SEC 1983.  THIS HOLDING DOES NOT, HOWEVER, MEAN THAT
THE COUNT BASED THEREON SHOULD BE DISMISSED.  THE COURT OF APPEALS
ORDERED DISMISSAL OF THE COMMON-LAW COUNT ON THE THEORY THAT THE POLICE
OFFICERS WERE NOT REQUIRED TO PREDICT OUR DECISION IN THOMAS V.
MISSISSIPPI, 380 U.S. 524.  WE AGREE THAT A POLICE OFFICER IS NOT
CHARGED WITH PREDICTING THE FUTURE COURSE OF CONSTITUTIONAL LAW.  BUT
THE PETITIONERS IN THIS CASE DID NOT SIMPLY ARGUE THAT THEY WERE
ARRESTED UNDER A STATUTE LATER HELD UNCONSTITUTIONAL.  THEY CLAIMED AND
ATTEMPTED TO PROVE THAT THE POLICE OFFICERS ARRESTED THEM SOLELY FOR
ATTEMPTING TO USE THE "WHITE ONLY" WAITING ROOM, THAT NO CROWD WAS
PRESENT, AND THAT NO ONE THREATENED VIOLENCE OR SEEMED ABOUT TO CAUSE A
DISTURBANCE.  THE OFFICERS DID NOT DEFEND ON THE THEORY THAT THEY
BELIEVED IN GOOD FAITH THAT IT WAS CONSTITUTIONAL TO ARREST THE
MINISTERS SOLELY FOR USING THE WAITING ROOM.  RATHER, THEY CLAIMED AND
ATTEMPTED TO PROVE THAT THEY DID NOT ARREST THE MINISTERS FOR THE
PURPOSE OF PRESERVING THE CUSTOM OF SEGREGATION IN MISSISSIPPI, BUT
SOLELY FOR THE PURPOSE OF PREVENTING VIOLENCE.  THEY TESTIFIED, IN
CONTRADICTION TO THE MINISTERS, THAT A CROWD GATHERED AND THAT IMMINENT
VIOLENCE WAS LIKELY.  IF THE JURY BELIEVED THE TESTIMONY OF THE
OFFICERS AND DISBELIEVED THAT OF THE MINISTERS, AND IF THE JURY FOUND
THAT THE OFFICERS REASONABLY BELIEVED IN GOOD FAITH THAT THE ARREST WAS
CONSTITUTIONAL, THEN A VERDICT FOR THE OFFICERS WOULD FOLLOW EVEN
THOUGH THE ARREST WAS IN FACT UNCONSTITUTIONAL.  THE JURY DID RESOLVE
THE FACTUAL ISSUES IN FAVOR OF THE OFFICERS BUT, FOR REASONS PREVIOUSLY
STATED, ITS VERDICT WAS INFLUENCED BY IRRELEVANT AND PREJUDICIAL
EVIDENCE.  ACCORDINGLY, THE CASE MUST BE REMANDED TO THE TRIAL COURT
FOR A NEW TRIAL. 

IT IS NECESSARY TO DECIDE WHAT IMPORTANCE SHOULD BE GIVEN AT THE NEW
TRIAL FOR THE SUBSTANTIALLY UNDISPUTED FACT THAT THE PETITIONERS WENT
TO JACKSON EXPECTING TO BE ILLEGALLY ARRESTED.  WE DO NOT AGREE WITH
THE COURT OF APPEALS THAT THEY SOMEHOW CONSENTED TO THE ARREST BECAUSE
OF THEIR ANTICIPATION THAT THEY WOULD BE ILLEGALLY ARRESTED, EVEN
ASSUMING THAT THEY WENT TO THE JACKSON BUS TERMINAL FOR THE SOLE
PURPOSE OF TESTING THEIR RIGHTS TO UNSEGREGATED PUBLIC ACCOMMODATIONS. 
THE CASE CONTAINS NO PROOF OR ALLEGATION THAT THEY IN ANY WAY TRICKED
OR GOADED THE OFFICERS INTO ARRESTING THEM.  THE PETITIONERS HAD THE
RIGHT TO USE THE WAITING ROOM OF THE JACKSON BUS TERMINAL, AND THEIR
DELIBERATE EXERCISE OF THAT RIGHT IN A PEACEFUL, ORDERLY, AND
INOFFENSIVE MANNER DOES NOT DISQUALIFY THEM FROM SEEKING DAMAGES UNDER
SEC 1983.  (FN12) 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED
IN PART, AND THE CASES ARE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS."  42 U.S.C. SEC 1983. 

FN2  "1.  WHOEVER WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR
UNDER CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED
THEREBY: 

"(1)  CROWDS OR CONGREGATES WITH OTHERS IN  ...  ANY HOTEL, MOTEL,
STORE, RESTAURANT, LUNCH COUNTER, CAFETERIA, SANDWICH SHOP,  ...  OR
ANY OTHER PLACE OF BUSINESS ENGAGED IN SELLING OR SERVING MEMBERS OF
THE PUBLIC, OR IN OR AROUND ANY FREE ENTRANCE TO ANY SUCH PLACE OF
BUSINESS OR PUBLIC BUILDING, OR TO ANY BUILDING OWNED BY ANOTHER
INDIVIDUAL, OR A CORPORATION, OR A PARTNERSHIP OR AN ASSOCIATION, AND
WHO FAILS OR REFUSES TO DISPERSE AND MOVE ON, OR DISPERSE OR MOVE ON,
WHEN ORDERED SO TO DO BY ANY LAW ENFORCEMENT OFFICER OF ANY
MUNICIPALITY, OR COUNTY, IN WHICH SUCH ACT OR ACTS ARE COMMITTED, OR BY
ANY LAW ENFORCEMENT OFFICER OF THE STATE OF MISSISSIPPI, OR ANY OTHER
AUTHORIZED PERSON,  ...  SHALL BE GUILTY OF DISORDERLY CONDUCT, WHICH
IS MADE A MISDEMEANOR, AND, UPON CONVICTION THEREOF, SHALL BE PUNISHED
BY A FINE OF NOT MORE THAN TWO HUNDRED DOLLARS ($200.00), OR
IMPRISONMENT IN THE COUNTY JAIL FOR NOT MORE THAN FOUR (4) MONTHS, OR
BY BOTH SUCH FINE AND IMPRISONMENT 

...  ." 

FN3  THE MINISTERS INVOLVED IN NO. 79 WILL BE DESIGNATED AS
"PETITIONERS" THROUGHOUT THIS OPINION, ALTHOUGH THEY ARE THE
RESPONDENTS IN NO. 94. 

FN4  IN THOMAS VARIOUS "FREEDOM RIDERS" WERE ARRESTED AND CONVICTED
UNDER CIRCUMSTANCES SUBSTANTIALLY SIMILAR TO THE FACTS OF THESE CASES. 
THE POLICE TESTIFIED THAT THEY ORDERED THE "FREEDOM RIDERS" TO LEAVE
BECAUSE THEY FEARED THAT ONLOOKERS MIGHT BREACH THE PEACE.  WE REVERSED
WITHOUT ARGUMENT OR OPINION, CITING BOYNTON V. VIRGINIA, 364 U.S. 454
(1960).  BOYNTON HELD THAT RACIAL DISCRIMINATION IN A BUS TERMINAL
RESTAURANT UTILIZED AS AN INTEGRAL PART OF THE TRANSPORTATION OF
INTERSTATE PASSENGERS VIOLATES SEC. 216(D) OF THE INTERSTATE COMMERCE
ACT.  STATE ENFORCEMENT OF SUCH DISCRIMINATION IS BARRED BY THE
SUPREMACY CLAUSE. 

FN5  RESPONDENTS READ THE COURT'S OPINION AS REMANDING FOR A NEW
TRIAL ON THIS CLAIM.  THE COURT STATED, HOWEVER, THAT THE OFFICERS "ARE
IMMUNE FROM LIABILITY FOR FALSE IMPRISONMENT AT COMMON LAW BUT NOT FROM
LIABILITY FOR VIOLATIONS OF THE FEDERAL STATUTES ON CIVIL RIGHTS.  IT
THEREFORE FOLLOWS THAT THERE SHOULD BE A NEW TRIAL OF THE CIVIL RIGHTS
CLAIM AGAINST THE APPELLEE POLICE OFFICERS SO THAT THERE MAY BE A
DETERMINATION OF THE FACT ISSUE AS TO WHETHER THE APPELLANTS INVITED OR
CONSENTED TO THE ARREST AND IMPRISONMENT."  352 F.2D, AT 221. 

FN6  RESPONDENTS DID NOT CHALLENGE IN THEIR PETITION IN NO. 94 THE
HOLDING OF THE COURT OF APPEALS THAT A NEW TRIAL IS NECESSARY BECAUSE
OF THE PREJUDICIAL CROSS-EXAMINATION.  BELATEDLY, THE DEVOTED A SECTION
OF THEIR BRIEF TO THE CONTENTION THAT THE CROSS-EXAMINATION.  WAS
PROPER.  THIS ARGUMENT IS NO MORE MERITORIOUS THAN IT IS TIMELY.  THE
VIEWS OF THE COMMUNIST PARTY ON RACIAL EQUALITY WERE NOT AN ISSUE IN
THESE CASES. 

FN7  TRANSCRIPT OF RECORD, AT 347.  (TESTIMONY OF OFFICER GRIFFITH.) 

FN8  PETITIONERS ATTEMPTED TO SUGGEST A "CONSPIRACY" BETWEEN JUDGE
SPENCER AND THE POLICE OFFICERS BY QUESTIONING HIM ABOUT HIS REASONS
FOR FINDING PETITIONERS GUILTY IN THESE CASES AND BY SHOWING THAT HE
HAD FOUND OTHER "FREEDOM RIDERS" GUILTY UNDER SIMILAR CIRCUMSTANCES IN
PREVIOUS CASES.  THE PROOF OF CONSPIRACY NEVER WENT BEYOND THIS
SUGGESTION THAT INFERENCES COULD BE DRAWN FROM JUDGE SPENCER'S JUDICIAL
DECISIONS.  SEE TRANSCRIPT OF RECORD, AT 352-371. 

FN9  SINCE OUR DECISION IN TENNEY V. BRANDHOVE, SUPRA, THE COURTS OF
APPEALS HAVE CONSISTENTLY HELD THAT JUDICIAL IMMUNITY IS A DEFENSE TO
AN ACTION UNDER SEC 1983.  SEE BAUERS V. HEISEL, 361 F.2D 581 (C.A. 3D
CIR. 1966), AND CASES CITED THEREIN. 

FN10  SEE CAVEAT, RESTATEMENT, SECOND, TORTS SEC 121, AT 207-208
(1965); MILLER V. STINNETT, 257 F.2D 910 (C.A. 10TH CIR. 1958). 

FN11  SEE GOLDEN V. THOMPSON, 194 MISS.  241, 11 SO. 2D 906 (1943). 

FN12  THE PETITION FOR CERTIORARI IN NO. 79 ALSO PRESENTED THE
QUESTION WHETHER THE COURT OF APPEALS CORRECTLY DISMISSED THE COUNT
BASED ON THE COMMON LAW OF MISSISSIPPI.  WE DO NOT ORDINARILY REVIEW
THE HOLDING OF A COURT OF APPEALS ON A MATTER OF STATE LAW, AND WE FIND
NO REASON FOR DEPARTING FROM THAT TRADITION IN THIS CASE.  THE STATE
COMMON-LAW CLAIM IN THIS CASE IS MERELY CUMULATIVE, AND PETITIONERS'
RIGHT TO RECOVER FOR AN INVASION OF THEIR CIVIL RIGHTS, SUBJECTED TO
THE DEFENSE OF GOOD FAITH AND PROBABLE CAUSE, IS ADEQUATELY SECURED BY
SEC 1983. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I DO NOT THINK THAT ALL JUDGES, UNDER ALL CIRCUMSTANCES, NO MATTER
HOW OUTRAGEOUS THEIR CONDUCT ARE IMMUNE FROM SUIT UNDER 17 STAT. 13, 42
U.S.C. SEC 1983.  THE COURT'S RULING IS NOT JUSTIFIED BY THE ADMITTED
NEED FOR A VIGOROUS AND INDEPENDENT JUDICIARY, IS NOT COMMANDED BY THE
COMMON-LAW DOCTRINE OF JUDICIAL IMMUNITY, AND DOES NOT FOLLOW
INEXORABLY FROM OUR PRIOR DECISIONS. 

THE STATUTE, WHICH CAME ON THE BOOKS AS SEC 1 OF THE KU KLUX KLAN ACT
OF APRIL 20, 1871, 17 STAT. 13, PROVIDES THAT "EVERY PERSON" WHO UNDER
COLOR OF STATE LAW OR CUSTOM "SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY
CITIZEN  ...  TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS."  TO MOST, "EVERY PERSON" WOULD MEAN EVERY
PERSON, NOT EVERY PERSON EXCEPT JUDGES.  DESPITE THE PLAIN IMPORT OF
THOSE WORDS, THE COURT DECIDED IN TENNEY V. BRANDHOVE, 341 U.S. 367,
THAT STATE LEGISLATORS ARE IMMUNE FROM SUIT AS LONG AS THE DEPRIVATION
OF CIVIL RIGHTS WHICH THEY CAUSED A PERSON OCCURRED WHILE THE
LEGISLATORS "WERE ACTING IN A FIELD WHERE LEGISLATORS TRADITIONALLY
HAVE POWER TO ACT."  ID., AT 379.  I DISSENTED FROM THE CREATION OF
THAT JUDICIAL EXCEPTION AS I DO FROM THE CREATION OF THE PRESENT ONE. 

THE CONGRESSIONAL PURPOSE SEEMS TO ME TO BE CLEAR.  A CONDITION OF
LAWLESSNESS EXISTED IN CERTAIN OF THE STATES, UNDER WHICH PEOPLE WERE
BEING DENIED THEIR CIVIL RIGHTS.  CONGRESS INTENDED TO PROVIDE A REMEDY
FOR THE WRONGS BEING PERPETRATED.  AND ITS MEMBERS WERE NOT UNAWARE
THAT CERTAIN MEMBERS OF THE JUDICIARY WERE IMPLICATED IN THE STATE OF
AFFAIRS WHICH THE STATUTE WAS INTENDED TO RECTIFY.  IT WAS OFTEN NOTED
THAT "IMMUNITY IS GIVEN TO CRIME, AND THE RECORDS OF THE PUBLIC
TRIBUNALS ARE SEARCHED IN VAIN FOR ANY EVIDENCE OF EFFECTIVE REDRESS." 
CONG. GLOBE, 42D CONG., 1ST SESS., 374.  MR. RAINEY OF SOUTH CAROLINA
NOTED THAT "THE COURTS ARE IN MANY INSTANCES UNDER THE CONTROL OF THOSE
WHO ARE WHOLLY INIMICAL TO THE IMPARTIAL ADMINISTRATION OF LAW AND
EQUITY."  ID., AT 394.  CONGRESSMAN BEATTY OF OHIO CLAIMED THAT IT WAS
THE DUTY OF CONGRESS TO LISTEN TO THE APPEALS OF THOSE WHO "BY REASON
OF POPULAR SENTIMENT OR SECRET ORGANIZATIONS OR PREJUDICED JURIES OR
BRIBED JUDGES, CANNOT OBTAIN THE RIGHTS AND PRIVILEGES DUE AN AMERICAN
CITIZEN 

...  ."  ID., AT 429.  THE MEMBERS SUPPORTING THE PROPOSED MEASURE
WERE APPREHENSIVE THAT THERE HAD BEEN A COMPLETE BREAKDOWN IN THE
ADMINISTRATION OF JUSTICE IN CERTAIN STATES AND THAT LAWS
NONDISCRIMINATORY ON THEIR FACE WERE BEING APPLIED IN A DISCRIMINATORY
MANNER, THAT THE NEWLY WON CIVIL RIGHTS OF THE NEGRO WERE BEING
IGNORED, AND THAT THE CONSTITUTION WAS BEING DEFIED.  IT WAS AGAINST
THIS BACKGROUND THAT THE SECTION WAS PASSED, AND IT IS AGAINST THIS
BACKGROUND THAT IT SHOULD BE INTERPRETED. 

IT IS SAID THAT, AT THE TIME OF THE STATUTE'S ENACTMENT, THE DOCTRINE
OF JUDICIAL IMMUNITY WAS WELL SETTLED AND THAT CONGRESS CANNOT BE
PRESUMED TO HAVE INTENDED TO ABROGATE THE DOCTRINE SINCE IT DID NOT
CLEARLY EVINCE SUCH A PURPOSE.  THIS VIEW IS BESET BY MANY
DIFFICULTIES.  IT ASSUMES THAT CONGRESS COULD AND SHOULD SPECIFY IN
ADVANCE ALL THE POSSIBLE CIRCUMSTANCES TO WHICH A REMEDIAL STATUTE
MIGHT APPLY AND STATE WHICH CASES ARE WITHIN THE SCOPE OF A STATUTE. 

"UNDERLYING THIS VIEW IS AN ATOMISTIC CONCEPTION OF INTENTION,
COUPLED WITH WHAT MAY BE CALLED A POINTER THEORY OF MEANING.  THIS VIEW
CONCEIVES THE MIND TO BE DIRECTED TOWARD INDIVIDUAL THINGS, RATHER THAN
TOWARD GENERAL IDEAS, TOWARD DISTINCT SITUATIONS OF FACT RATHER THAN
TOWARD SOME SIGNIFICANCE IN HUMAN AFFAIRS THAT THESE SITUATIONS MAY
SHARE.  IF THIS VIEW WERE TAKEN SERIOUSLY, THEN WE WOULD HAVE TO REGARD
THE INTENTION OF THE DRAFTSMAN OF A STATUTE DIRECTED AGAINST 'DANGEROUS
WEAPONS' AS BEING DIRECTED TOWARD AN ENDLESS SERIES OF INDIVIDUAL
OBJECTS:  REVOLVERS, AUTOMATIC PISTOLS, DAGGERS, BOWIE KNIVES, ETC.  IF
A COURT APPLIES THE STATUTE TO A WEAPON ITS DRAFTSMAN HAD NOT THOUGHT
OF, THEN IT WOULD BE 'LEGISLATING,' NOT 'INTERPRETING,' AS EVEN MORE
OBVIOUSLY IT WOULD BE IF IT WERE TO APPLY THE STATUTE TO A WEAPON NOT
YET INVENTED WHEN THE STATUTE WAS PASSED."  FULLER, THE MORALITY OF LAW
84 (1964). 

CONGRESS OF COURSE ACTS IN THE CONTEXT OF EXISTING COMMON-LAW RULES,
AND IN CONSTRUING A STATUTE A COURT CONSIDERS THE "COMMON LAW BEFORE
THE MAKING OF THE ACT."  HEYDON'S CASE, 3 CO. REP. 7A, 76 ENG. REP. 637
(EX. 1584).  BUT CONGRESS ENACTS A STATUTE TO REMEDY THE INADEQUACIES
OF THE PRE-EXISTING LAW, INCLUDING THE COMMON LAW.  (FN1)  IT CANNOT BE
PRESUMED THAT THE COMMON LAW IS THE PERFECTION OF REASON, IS SUPERIOR
TO STATUTORY LAW (SEDGWICK, CONSTRUCTION OF STATUTES 270 (1ST ED.
1857); POUND, COMMON LAW AND LEGISLATION, 21 HARV.  L. REV. 383, 404
406 (1908), AND THAT THE LEGISLATURE ALWAYS CHANGES LAW FOR THE WORSE. 
NOR SHOULD THE CANON OF CONSTRUCTION "STATUTES IN DEROGATION OF THE
COMMON LAW ARE TO BE STRICTLY CONSTRUED" BE APPLIED SO AS TO WEAKEN A
REMEDIAL STATUTE WHOSE PURPOSE IS TO REMEDY THE DEFECTS OF THE PRE
EXISTING LAW. 

THE POSITION THAT CONGRESS DID NOT INTEND TO CHANGE THE COMMON-LAW
RULE OF JUDICIAL IMMUNITY IGNORES THE FACT THAT EVERY MEMBER OF
CONGRESS WHO SPOKE TO THE ISSUE ASSUMED THAT THE WORDS OF THE STATUTE
MEANT WHAT THEY SAID AND THAT JUDGES WOULD BE LIABLE.  MANY MEMBERS OF
CONGRESS OBJECTED TO THE STATUTE BECAUSE IT IMPOSED LIABILITY ON
MEMBERS OF THE JUDICIARY.  MR. ARTHUR OF KENTUCKY OPPOSED THE MEASURE
BECAUSE: 

"HITHERTO  ...  NO JUDGE OR COURT HAS BEEN HELD LIABLE, CIVILLY OR
CRIMINALLY, FOR JUDICIAL ACTS ...  .  UNDER THE PROVISIONS OF SECTION 1
EVERY JUDGE IN THE STATE COURT 

...  WILL ENTER UPON AND PURSUE THE CALL OF OFFICIAL DUTY WITH THE
SWORD OF DAMOCLES SUSPENDED OVER HIM  ...  ."  CONG. GLOBE, 42D CONG.,
1ST SESS., 365-366. 

AND SENATOR THURMAN NOTED THAT: 

"THERE HAVE BEEN TWO OR THREE INSTANCES ALREADY UNDER THE CIVIL
RIGHTS BILL OF STATE JUDGES BEING TAKEN INTO THE UNITED STATES DISTRICT
COURT, SOMETIMES UPON INDICTMENT FOR THE OFFENSE  ...  OF HONESTLY AND
CONSCIENTIOUSLY DECIDING THE LAW TO BE AS THEY UNDERSTOOD IT TO BE  ...
. 

"IS SECTION 1 INTENDED TO PERPETUATE THAT?  IS IT INTENDED TO ENLARGE
IT?  IS IT INTENDED TO EXTEND IT SO THAT NO LONGER A JUDGE SITTING ON
THE BENCH TO DECIDE CAUSES CAN DECIDE THEM FREE FROM ANY FEAR EXCEPT
THAT OF IMPEACHMENT, WHICH NEVER LIES IN THE ABSENCE OF CORRUPT
MOTIVE?  IS THAT TO BE EXTENDED, SO THAT EVERY JUDGE OF A STATE MAY BE
LIABLE TO BE DRAGGED BEFORE SOME FEDERAL JUDGE TO VINDICATE HIS OPINION
AND TO BE MULCTED IN DAMAGES IF THAT FEDERAL JUDGE SHALL THINK THE
OPINION WAS ERRONEOUS?  THAT IS THE LANGUAGE OF THIS BILL."  CONG. 
GLOBE, 42D CONG., 1ST SESS., APPENDIX 217.    MR. LEWIS OF KENTUCKY
EXPRESSED THE FEAR THAT: 

"BY THE FIRST SECTION, IN CERTAIN CASES, THE JUDGE OF A STATE COURT,
THOUGH ACTING UNDER OATH OF OFFICE, IS MADE LIABLE TO A SUIT IN THE
FEDERAL COURT AND SUBJECT TO DAMAGES FOR HIS DECISION AGAINST A SUITOR
...  ."  CONG. GLOBE, 42D CONG., 1ST SESS., 385. 

YET DESPITE THE REPEATED FEARS OF ITS OPPONENTS, AND THE EXPLICIT
RECOGNITION THAT THE SECTION WOULD SUBJECT JUDGES TO SUIT, THE SECTION
REMAINED AS IT WAS PROPOSED:  IT APPLIED TO "ANY PERSON."  (FN2)  THERE
WAS NO EXCEPTION FOR MEMBERS OF THE JUDICIARY.  IN LIGHT OF THE SHARPLY
CONTESTED NATURE OF THE ISSUE OF JUDICIAL IMMUNITY IT WOULD BE
REASONABLE TO ASSUME THAT THE JUDICIARY WOULD HAVE BEEN EXPRESSLY
EXEMPTED FROM THE WIDE SWEEP OF THE SECTION, IF CONGRESS HAD INTENDED
SUCH A RESULT. 

THE SECTION'S PURPOSE WAS TO PROVIDE REDRESS FOR THE DEPRIVATION OF
CIVIL RIGHTS.  IT WAS RECOGNIZED THAT CERTAIN MEMBERS OF THE JUDICIARY
WERE INSTRUMENTS OF OPPRESSION AND WERE PARTIALLY RESPONSIBLE FOR THE
WRONGS TO BE REMEDIED.  THE PARADE OF CASES COMING TO THIS COURT SHOWS
THAT A SIMILAR CONDITION NOW OBTAINS IN SOME OF THE STATES.  SOME STATE
COURTS HAVE BEEN INSTRUMENTS OF SUPPRESSION OF CIVIL RIGHTS.  THE
METHODS MAY HAVE CHANGED; THE MEANS MAY HAVE BECOME MORE SUBTLE; BUT
THE WRONG TO BE REMEDIED STILL EXISTS. 

TODAY'S DECISION IS NOT DICTATED BY OUR PRIOR DECISIONS.  IN EX PARTE
VIRGINIA, 100 U.S. 339, THE COURT HELD THAT A JUDGE WHO EXCLUDED
NEGROES FROM JURIES COULD BE HELD LIABLE UNDER THE ACT OF MARCH 1, 1875
(18 STAT. 335), ONE OF THE CIVIL RIGHTS ACTS.  THE COURT ASSUMED THAT
THE JUDGE WAS MERELY PERFORMING A MINISTERIAL FUNCTION.  BUT IT WENT ON
TO STATE THAT THE JUDGE WOULD BE LIABLE UNDER THE STATUTE EVEN IF HIS
ACTIONS WERE JUDICIAL.  (FN3)  IT IS ONE THING TO SAY THAT THE COMMON
LAW DOCTRINE OF JUDICIAL IMMUNITY IS A DEFENSE TO A COMMON-LAW CAUSE OF
ACTION.  BUT IT IS QUITE ANOTHER TO SAY THAT THE COMMON-LAW IMMUNITY
RULE IS A DEFENSE TO LIABILITY WHICH CONGRESS HAS IMPOSED UPON "ANY
OFFICER OR OTHER PERSON," AS IN EX PARTE VIRGINIA, OR UPON "EVERY
PERSON" AS IN THESE CASES. 

THE IMMUNITY WHICH THE COURT TODAY GRANTS THE JUDICIARY IS NOT
NECESSARY TO PRESERVE AN INDEPENDENT JUDICIARY.  IF THE THREAT OF CIVIL
ACTION LIES IN THE BACKGROUND OF LITIGATION, SO THE ARGUMENT GOES,
JUDGES WILL BE RELUCTANT TO EXERCISE THE DISCRETION AND JUDGMENT
INHERENT IN THEIR POSITION AND VITAL TO THE EFFECTIVE OPERATION OF THE
JUDICIARY.  WE SHOULD, OF COURSE, NOT PROTECT A MEMBER OF THE JUDICIARY
"WHO IS IN FACT GUILTY OF USING HIS POWERS TO VENT HIS SPLEEN UPON
OTHERS, OR FOR ANY OTHER PERSONAL MOTIVE NOT CONNECTED WITH THE PUBLIC
GOOD."  GREGOIRE V. BIDDLE, 177 F.2D 579, 581.  TO DENY RECOVERY TO A
PERSON INJURED BY THE RULING OF A JUDGE ACTING FOR PERSONAL GAIN OR OUT
OF PERSONAL MOTIVES WOULD BE "MONSTROUS."  IBID.  BUT, IT IS ARGUED
THAT ABSOLUTE IMMUNITY IS NECESSARY TO PREVENT THE CHILLING EFFECTS OF
A JUDICIAL INQUIRY, OR THE THREAT OF SUCH INQUIRY, INTO WHETHER, IN
FACT, A JUDGE HAS BEEN UNFAITHFUL TO HIS OATH OF OFFICE.  THUS, IT IS
NECESSARY TO PROTECT THE GUILTY AS WELL AS THE INNOCENT.  (FN4) 

THE DOCTRINE OF SEPARATION OF POWERS IS, OF COURSE, APPLICABLE ONLY
TO THE RELATIONS OF COORDINATE BRANCHES OF THE SAME GOVERNMENT, NOT TO
THE RELATIONS BETWEEN THE BRANCHES OF THE FEDERAL GOVERNMENT AND THOSE
OF THE STATES.  SEE BAKER V. CARR, 369 U.S. 186, 210.  ANY ARGUMENT
THAT CONGRESS COULD NOT IMPOSE LIABILITY ON STATE JUDGES FOR THE
DEPRIVATION OF CIVIL RIGHTS WOULD THUS HAVE TO BE BASED UPON THE CLAIM
THAT DOING SO WOULD VIOLATE THE THEORY OF DIVISION OF POWERS BETWEEN
THE FEDERAL AND STATE GOVERNMENTS.  THIS CLAIM HAS BEEN FORECLOSED BY
THE CASES RECOGNIZING "THAT CONGRESS HAS THE POWER TO ENFORCE
PROVISIONS OF THE FOURTEENTH AMENDMENT AGAINST THOSE WHO CARRY A BADGE
OF AUTHORITY OF A STATE  ...  ."  MONROE V. PAPE, 365 U.S. 167, 171
172.  IN TERMS OF THE POWER OF CONGRESS, I CAN SEE NO DIFFERENCE
BETWEEN IMPOSING LIABILITY ON A STATE POLICE OFFICER (MONROE V. PAPE,
SUPRA) AND ON A STATE JUDGE.  THE QUESTION PRESENTED IS NOT OF
CONSTITUTIONAL DIMENSION; IT IS SOLELY A QUESTION OF STATUTORY
INTERPRETATION. 

THE ARGUMENT THAT THE ACTIONS OF PUBLIC OFFICIALS MUST NOT BE
SUBJECTED TO JUDICIAL SCRUTINY BECAUSE TO DO SO WOULD HAVE AN
INHIBITING EFFECT ON THEIR WORK, IS BUT A MORE SOPHISTICATED MANNER OF
SAYING "THE KING CAN DO NO WRONG."  (FN5)  CHIEF JUSTICE COCKBURN LONG
AGO DISPOSED OF THE ARGUMENT THAT LIABILITY WOULD DETER JUDGES: 

"I CANNOT BELIEVE THAT JUDGES  ...  WOULD FAIL TO DISCHARGE THEIR
DUTY FAITHFULLY AND FEARLESSLY ACCORDING TO THEIR OATHS AND CONSCIENCES
...  FROM ANY FEAR OF EXPOSING THEMSELVES TO ACTIONS AT LAW.  I AM
PERSUADED THAT THE NUMBER OF SUCH ACTIONS WOULD BE INFINITELY SMALL AND
WOULD BE EASILY DISPOSED OF. WHILE, ON THE OTHER HAND, I CAN EASILY
CONCEIVE CASES IN WHICH JUDICIAL OPPORTUNITY MIGHT BE SO PERVERTED AND
ABUSED FOR THE PURPOSE OF INJUSTICE AS THAT, ON SOUND PRINCIPLES, THE
AUTHORS OF SUCH WRONG OUGHT TO BE RESPONSIBLE TO THE PARTIES WRONGED." 
DAWKINS V. LORD PAULET, L.R. 5 Q.B.  94, 110 (C.J. COCKBURN,
DISSENTING). 

THIS IS NOT TO SAY THAT A JUDGE WHO MAKES AN HONEST MISTAKE SHOULD BE
SUBJECTED TO CIVIL LIABILITY.  IT IS NECESSARY TO EXEMPT JUDGES FROM
LIABILITY FOR THE CONSEQUENCES OF THEIR HONEST MISTAKES.  THE JUDICIAL
FUNCTION INVOLVES AN INFORMED EXERCISE OF JUDGMENT.  IT IS OFTEN
NECESSARY TO CHOOSE BETWEEN DIFFERING VERSIONS OF FACT, TO RECONCILE
OPPOSING INTERESTS, AND TO DECIDE CLOSELY CONTESTED ISSUES.  DECISIONS
MUST OFTEN BE MADE IN THE HEAT OF TRIAL.  A VIGOROUS AND INDEPENDENT
MIND IS NEEDED TO PERFORM SUCH DELICATE TASKS.  IT WOULD BE UNFAIR TO
REQUIRE A JUDGE TO EXERCISE HIS INDEPENDENT JUDGMENT AND THEN TO PUNISH
HIM FOR HAVING EXERCISED IT IN A MANNER WHICH, IN RETROSPECT, WAS
ERRONEOUS.  IMPOSING LIABILITY FOR MISTAKEN, THOUGH HONEST JUDICIAL
ACTS, WOULD CURB THE INDEPENDENT MIND AND SPIRIT NEEDED TO PERFORM
JUDICIAL FUNCTIONS.  THUS, A JUDGE WHO SUSTAINS A CONVICTION ON WHAT HE
FORTHRIGHTLY CONSIDERS ADEQUATE EVIDENCE SHOULD NOT BE SUBJECTED TO
LIABILITY WHEN AN APPELLATE COURT DECIDES THAT THE EVIDENCE WAS NOT
ADEQUATE.  NOR SHOULD A JUDGE WHO ALLOWS A CONVICTION UNDER WHAT IS
LATER HELD AN UNCONSTITUTIONAL STATUTE. 

BUT THAT IS FAR DIFFERENT FROM SAYING THAT A JUDGE SHALL BE IMMUNE
FROM THE CONSEQUENCES OF ANY OF HIS JUDICIAL ACTIONS, AND THAT HE SHALL
NOT BE LIABLE FOR THE KNOWING AND INTENTIONAL DEPRIVATION OF A PERSON'S
CIVIL RIGHTS.  WHAT ABOUT THE JUDGE WHO CONSPIRES WITH LOCAL LAW
ENFORCEMENT OFFICERS TO "RAILROAD" A DISSENTER?  WHAT ABOUT THE JUDGE
WHO KNOWINGLY TURNS A TRIAL INTO A "KANGAROO" COURT?  OR ONE WHO
INTENTIONALLY FLOUTS THE CONSTITUTION IN ORDER TO OBTAIN A CONVICTION? 
CONGRESS, I THINK, CONCLUDED THAT THE EVILS OF ALLOWING INTENTIONAL,
KNOWING DEPRIVATIONS OF CIVIL RIGHTS TO GO UNREDRESSED FAR OUTWEIGHED
THE SPECULATIVE INHIBITING EFFECTS WHICH MIGHT ATTEND AN INQUIRY INTO A
JUDICIAL DEPRIVATION OF CIVIL RIGHTS.  (FN6) 

THE PLIGHT OF THE OPPRESSED IS INDEED SERIOUS.  UNDER CITY OF
GREENWOOD V. PEACOCK, 384 U.S. 808, THE DEFENDANT CANNOT REMOVE TO A
FEDERAL COURT TO PREVENT A STATE COURT FROM DEPRIVING HIM OF HIS CIVIL
RIGHTS.  AND UNDER THE RULE ANNOUNCED TODAY, THE PERSON CANNOT RECOVER
DAMAGES FOR THE DEPRIVATION. 

FN1  "REMEDIAL STATUTES ARE TO BE LIBERALLY CONSTRUED."  SEE
GENERALLY, LLEWELLYN, REMARKS ON THE THEORY OF APPELLATE DECISION AND
THE RULES OR CANONS ABOUT HOW STATUTES ARE TO BE CONSTRUED, 3 VAND.  L.
REV. 395 (1950); LLEWELLYN, THE COMMON LAW TRADITION, APPENDIX C
(1960). 

FN2  AS ALTERED BY THE REVISER WHO PREPARED THE REVISED STATUTES OF
1878, AND AS PRINTED IN 42 U.S.C. SEC 1983, THE STATUTE REFERS TO
"EVERY PERSON" RATHER THAN TO "ANY PERSON." 

FN3  THE OPINION IN EX PARTE VIRGINIA, SUPRA, DID NOT MENTION BRADLEY
V. FISHER, 13 WALL.  335, WHICH HELD THAT A JUDGE COULD NOT BE HELD
LIABLE FOR CAUSING THE NAME OF AN ATTORNEY TO BE STRUCK FROM THE COURT
ROLLS.  BUT IN BRADLEY, THE ACTION WAS NOT BROUGHT UNDER ANY OF THE
CIVIL RIGHTS ACTS. 

FN4  OTHER JUSTIFICATIONS FOR THE DOCTRINE OF ABSOLUTE IMMUNITY HAVE
BEEN ADVANCED:  (1) PREVENTING THREAT OF SUIT FROM INFLUENCING
DECISION; (2) PROTECTING JUDGES FROM LIABILITY FOR HONEST MISTAKES; (3)
RELIEVING JUDGES OF THE TIME AND EXPENSE OF DEFENDING SUITS; (4)
REMOVING AN IMPEDIMENT TO RESPONSIBLE MEN ENTERING THE JUDICIARY; (5)
NECESSITY OF FINALITY; (6) APPELLATE REVIEW IS SATISFACTORY REMEDY; (7)
THE JUDGE'S DUTY IS TO THE PUBLIC AND NOT TO THE INDIVIDUAL; (8)
JUDICIAL SELF-PROTECTION; (9) SEPARATION OF POWERS.  SEE GENERALLY
JENNINGS, TORT LIABILITY OF ADMINISTRATIVE OFFICERS, 21 MINN. L. REV.
263, 271-272 (1937). 

FN5  HISTORICALLY JUDICIAL IMMUNITY WAS A COROLLARY TO THAT THEORY. 
SINCE THE KING COULD DO NO WRONG, THE JUDGES, HIS DELEGATES FOR
DISPENSING JUSTICE, "OUGHT NOT TO BE DRAWN INTO QUESTION FOR ANY
SUPPOSED CORRUPTION FOR THIS TENDS TO THE SLANDER OF THE JUSTICE OF THE
KING."  FLOYD & BARKER, 12 CO. REP. 23, 25, 77 ENG. REP. 1305, 1307
(STAR CHAMBER 1607).  BECAUSE THE JUDGES WERE THE PERSONAL DELEGATES OF
THE KING THEY SHOULD BE ANSWERABLE TO HIM ALONE.  RANDALL V. BRIGHAM, 7
WALL.  523, 539. 

FN6  A JUDGE IS LIABLE FOR INJURY CAUSED BY A MINISTERIAL ACT; TO
HAVE IMMUNITY THE JUDGE MUST BE PERFORMING A JUDICIAL FUNCTION.  SEE,
E.G., EX PARTE VIRGINIA, 100 U.S. 339; 2 HARPER & JAMES, THE LAW OF
TORTS 1642-1643 (1956).  THE PRESENCE OF MALICE AND THE INTENTION TO
DEPRIVE A PERSON OF HIS CIVIL RIGHTS IS WHOLLY INCOMPATIBLE WITH THE
JUDICIAL FUNCTION.  WHEN A JUDGE ACTS INTENTIONALLY AND KNOWINGLY TO
DEPRIVE A PERSON OF HIS CONSTITUTIONAL RIGHTS HE EXERCISES NO
DISCRETION OR INDIVIDUAL JUDGMENT; HE ACTS NO LONGER AS A JUDGE, BUT AS
A "MINISTER" OF HIS OWN PREJUDICES. 
..END :













FEDERAL TRADE COMMISSION V. PROCTOR & GAMBLE 386 U.S. 568 


NO. 342.  ARGUED FEBRUARY 13, 1967.  - DECIDED APRIL 11, 1967.  - 358
F.2D 74, REVERSED AND REMANDED. 


PROCTER & GAMBLE (PROCTER), A LARGE, DIVERSIFIED MANUFACTURER OF
HOUSEHOLD PRODUCTS, ACQUIRED IN 1957 THE ASSETS OF CLOROX CHEMICAL CO.,
THE LEADING MANUFACTURER OF HOUSEHOLD LIQUID BLEACH, AND THE ONLY ONE
SELLING ON A NATIONAL BASIS.  CLOROX HAD 48.8% OF THE NATIONAL MARKET,
WITH HIGHER PERCENTAGES IN SOME REGIONAL AREAS.  CLOROX AND ONE OTHER
FIRM ACCOUNTED FOR 65% OF LIQUID BLEACH SALES, AND WITH FOUR OTHER
FIRMS FOR ALMOST 80%, WITH THE REST DIVIDED AMONG MORE THAN 200 SMALL
PRODUCERS.  PROCTER IS A DOMINANT FACTOR IN THE AREA OF SOAPS,
DETERGENTS AND CLEANERS, WITH TOTAL SALES IN 1957 IN EXCESS OF A
BILLION DOLLARS, AND AN ADVERTISING BUDGET OF MORE THAN $80,000,000,
DUE TO WHICH VOLUME PROCTER RECEIVES SUBSTANTIAL DISCOUNTS FROM THE
MEDIA.  THE FTC CHALLENGED THE ACQUISITION, AND AFTER HEARINGS FOUND
THAT THE SUBSTITUTION OF PROCTER FOR CLOROX WOULD DISSUADE NEW ENTRANTS
IN THE LIQUID BLEACH FIELD, DISCOURAGE ACTIVE COMPETITION FROM FIRMS
ALREADY IN THE INDUSTRY DUE TO FEAR OF RETALIATION FROM PROCTER, AND
DIMINISH POTENTIAL COMPETITION BY ELIMINATING PROCTER, THE MOST LIKELY
PROSPECT, AS A POTENTIAL ENTRANT.  THE FTC, WHICH PLACED NO RELIANCE ON
POST-ACQUISITION EVIDENCE, HELD THE ACQUISITION VIOLATIVE OF SEC 7 OF
THE CLAYTON ACT AND ORDERED THE DIVESTITURE OF CLOROX.  THE RELEVANT
LINE OF COMMERCE WAS FOUND TO BE HOUSEHOLD LIQUID BLEACH AND THE
RELEVANT GEOGRAPHICAL MARKET WAS HELD TO BE THE NATION AND A SERIES OF
REGIONAL MARKETS.  THE COURT OF APPEALS REVERSED, STATING THAT THE
FTC'S FINDING OF ILLEGALITY WAS BASED ON "TREACHEROUS CONJECTURE," MERE
POSSIBILITY AND SUSPICION.  THE COURT FOUND NOTHING UNHEALTHY ABOUT THE
MARKET CONDITIONS IN THE INDUSTRY, FOUND "IT DIFFICULT TO BASE A
FINDING OF ILLEGALITY ON DISCOUNTS IN ADVERTISING," FOUND NO EVIDENCE
TO SHOW THAT PROCTER EVER INTENDED TO ENTER THE BLEACH FIELD, AND
RELIED HEAVILY ON POST-ACQUISTION EVIDENCE TO THE EFFECT THAT OTHER
PRODUCERS "WERE SELLING MORE BLEACH FOR MORE MONEY THAN EVER BEFORE." 
HELD: 

1.  ANY MERGER, WHETHER IT IS HORIZONTAL, VERTICAL, CONGLOMERATE, OR,
AS IN THIS CASE, A "PRODUCT-EXTENSION MERGER," MUST BE TESTED BY THE
STANDARD OF SEC 7 OF THE CLAYTON ACT, THAT IS, WHETHER IT MAY
SUBSTANTIALLY LESSEN COMPETITION, WHICH REQUIRES A PREDICTION OF THE
MERGER'S IMPACT ON PRESENT AND FUTURE COMPETITION.  P. 577. 

2.  THIS MERGER MAY HAVE ANTICOMPETITIVE EFFECTS.  PP. 578-581. 

(A)  IN THIS OLIGOPOLISTIC INDUSTRY THE SUBSTITUTION OF THE POWERFUL
ACQUIRING FIRM FOR THE SMALLER BUT DOMINANT FIRM MAY SUBSTANTIALLY
REDUCE THE COMPETITIVE STRUCTURE OF THE INDUSTRY BY DISSUADING THE
SMALLER FIRMS FROM COMPETING AGGRESSIVELY, RESULTING IN A MORE RIGID
OLIGOPOLY WITH PROCTOR THE PRICE LEADER.  P. 578. 

(B)  THE ACQUISITION MAY ALSO TEND TO RAISE THE BARRIERS TO NEW
ENTRANTS WHO WOULD BE RELUCTANT TO FACE THE HUGE PROCTER, WITH ITS
LARGE ADVERTISING BUDGET.  P. 579. 

(C)  POTENTIAL ECONOMIES CANNOT BE USED AS A DEFENSE TO ILLEGALITY,
AS CONGRESS STRUCK THE BALANCE IN FAVOR OF PROTECTING COMPETITION.  P.
580. 

(D)  THE FTC'S FINDING THAT THE ACQUISITION ELIMIANTED PROCTER, THE
MOST LIKELY ENTRANT INTO THE LIQUID BLEACH FIELD, AS A POTENTIAL
COMPETITOR, WAS AMPLY SUPPORTED BY THE EVIDENCE.  PP. 580-581. 

FEDERAL TRADE COMMISSION V. PROCTER & GAMBLE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING INITIATED BY THE FEDERAL TRADE COMMISSION
CHARGING THAT RESPONDENT, PROCTER & GAMBLE CO., HAD ACQUIRED THE ASSETS
OF CLOROX CHEMICAL CO. IN VIOLATION OF SEC 7 OF THE CLAYTON ACT, 38
STAT. 731, AS AMENDED BY THE CELLER-KEFAUVER ACT, 64 STAT. 1125, 15
U.S.C. SEC 18.  (FN1)  THE CHARGE WAS THAT PROCTER'S ACQUISITION OF
CLOROX MIGHT SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A
MONOPOLY IN THE PRODUCTION AND SALE OF HOUSEHOLD LIQUID BLEACHES. 

FOLLOWING EVIDENTIARY HEARINGS, THE HEARING EXAMINER RENDERED HIS
DECISION IN WHICH HE CONCLUDED THAT THE ACQUISITION WAS UNLAWFUL AND
ORDERED DIVERSTITURE.  ON APPEAL, THE COMMISSION REVERSED, HOLDING THAT
THE RECORD AS THEN CONSTITUTED WAS INADEQUATE, AND REMANDED TO THE
EXAMINER FOR ADDITIONAL EVIDENTIARY HEARINGS.  58 F.T.C. 1203.  AFTER
THE ADDITIONAL HEARINGS, THE EXAMINER AGAIN HELD THE ACQUISITION
UNLAWFUL AND ORDERED DIVERSTITURE.  THE COMMISSION AFFIRMED THE
EXAMINER AND ORDERED DIVESTITURE.  63 F.T.C. - .  THE COURT OF APPEALS
FOR THE SIXTH CIRCUIT REVERSED AND DIRECTED THAT THE COMMISSION'S
COMPLAINT BE DISMISSED.  358 F.2D 74.  WE FIND THAT THE COMMISSION'S
FINDINGS WERE AMPLY SUPPORTED BY THE EVIDENCE, AND THAT THE COURT OF
APPEALS ERRED. 

AS INDICATED BY THE COMMISSION IN ITS PAINSTAKING AND ILLUMINATING
REPORT, IT DOES NOT PARTICULARLY AID ANALYSIS TO TALK OF THIS MERGER IN
CONVENTIONAL TERMS, NAMELY, HORIZONTAL OR VERTICAL OR CONGLOMERATE. 
THIS MERGER MAY MOST APPROPRIATELY BE DESCRIBED AS A "PRODUCT-EXTENSION
MERGER," AS THE COMMISSION STATED.  THE FACTS ARE NOT DISPUTED, AND A
SUMMARY WILL DEMONSTRATE THE CORRECTNESS OF THE COMMISSION'S DECISION. 

AT THE TIME OF THE MERGER, IN 1957, CLOROX WAS THE LEADING
MANUFACTURER IN THE HEAVILY CONCENTRATED HOUSEHOLD LIQUID BLEACH
INDUSTRY.  IT IS AGREED THAT HOUSEHOLD LIQUID BLEACH IS THE RELEVANT
LINE OF COMMERCE.  THE PRODUCT IS USED IN THE HOME AS A GERMICIDE AND
DISINFECTANT, AND, MORE IMPORTANTLY, AS A WHITENING AGENT IN WASHING
CLOTHES AND FABRICS.  IT IS A DISTINCTIVE PRODUCT WITH NO CLOSE
SUBSTITUTES.  LIQUID BLEACH IS A LOW-PRICE, HIGH-TURNOVER CONSUMER
PRODUCT SOLD MAINLY THROUGH GROCERY STORES AND SUPERMARKETS.  THE
RELEVANT GEOGRAPHICAL MARKET IS THE NATION AND A SERIES OF REGIONAL
MARKETS.  BECAUSE OF HIGH SHIPPING COSTS AND LOW SALES PRICE, IT IS NOT
FEASIBLE TO SHIP THE PRODUCT MORE THAN 300 MILES FROM ITS POINT OF
MANUFACTURE.  MOST MANUFACTURERS ARE LIMITED TO COMPETITION WITHIN A
SINGLE REGION SINCE THEY HAVE BUT ONE PLANT.  CLOROX IS THE ONLY FIRM
SELLING NATIONALLY; IT HAS 13 PLANTS DISTRIBUTED THROUGHOUT THE
NATION.  PUREX, CLOROX'S CLOSEST COMPETITIOR IN SIZE, DOES NOT
DISTRIBUTE ITS BLEACH IN THE NORTHEAST OR MID-ATLANTIC STATES; IN 1957,
PUREX'S BLEACH WAS AVAILABLE IN LESS THAN 50% OF THE NATIONAL MARKET. 

AT THE TIME OF THE ACQUISITION, CLOROX WAS THE LEADING MANUFACTURER
OF HOUSEHOLD LIQUID BLEACH, WITH 48.8% OF THE NATIONAL SALES - ANNUAL
SALES OF SLIGHTLY LESS THAN $40,000,000.  ITS MARKET SHARE HAD BEEN
STEADILY INCREASING FOR THE FIVE YEARS PRIOR TO THE MERGER.  ITS
NEAREST RIVAL WAS PUREX, WHICH MANUFACTURES A NUMBER OF PRODUCTS OTHER
THAN HOUSEHOLD LIQUID BLEACHES, INCLUDING ABRASIVE CLEANERS, TOILET
SOAP, AND DETERGENTS.  PUREX ACCOUNTED FOR 15.7% OF THE HOUSEHOLD
LIQUID BLEACH MARKET.  THE INDUSTRY IS HIGHLY CONCENTRATED; IN 1957,
CLOROX AND PUREX ACCOUNTED FOR ALMOST 65% OF THE NATION'S HOUSEHOLD
LIQUID BLEACH SALES, AND, TOGETHER WITH FOUR OTHER FIRMS, FOR ALMOST
80%. THE REMAINING 20% WAS DIVIDED AMONG OVER 200 SMALL PRODUCERS. 
CLOROX HAD TOTAL ASSETS OF $12,000,000; ONLY EIGHT PRODUCERS HAD ASSETS
IN EXCESS OF $1,000,000 AND VERY FEW HAD ASSETS OF MORE THAN $75,000. 

IN LIGHT OF THE TERRITORIAL LIMITATIONS ON DISTRIBUTION, NATIONAL
FIGURES DO NOT GIVE AN ACCURATE PICTURE OF CLOROX'S DOMINANCE IN THE
VARIOUS REGIONS.  THUS, CLOROX'S SEVEN PRINCIPAL COMPETITORS DID NO
BUSINESS IN NEW ENGLAND, THE MID-ATLANTIC STATES, OR METROPOLITAN NEW
YORK.  CLOROX'S SHARE OF THE SALES IN THOSE AREAS WAS 56%, 72%, AND 64%
RESPECTIVELY.  EVEN IN REGIONS WHERE ITS PRINCIPAL COMPETITORS WERE
ACTIVE, CLOROX MAINTAINED A DOMINANT POSITION.  EXCEPT IN METROPOLITAN
CHICAGO AND THE WEST-CENTRAL STATES CLOROX ACCOUNTED FOR AT LEAST 39%,
AND OFTEN A MUCH HIGHER PERCENTAGE, OF LIQUID BLEACH SALES. 

SINCE ALL LIQUID BLEACH IS CHEMICALLY IDENTICAL, ADVERTISING AND
SALES PROMOTION ARE VITAL.  IN 1957 CLOROX SPENT ALMOST $3,700,000 ON
ADVERTISING IMPRINTING THE VALUE OF ITS BLEACH IN THE MIND OF THE
CONSUMER.  IN ADDITION, IT SPENT $1,700,000 FOR OTHER PROMOTIONAL
ACTIVITIES.  THE COMMISSION FOUND THAT THESE HEAVY EXPENDITURES WENT
FAR TO EXPLAIN WHY CLOROX MAINTAINED SO HIGH A MARKET SHARE DESPITE THE
FACT THAT ITS BRAND, THOUGH CHEMICALLY INDISTINGUISHABLE FROM RIVAL
BRANDS, RETAILED FOR A PRICE EQUAL TO OR, IN MANY INSTANCES, HIGHER
THAN ITS COMPETITORS. 

PROCTER IS A LARGE, DIVERSIFIED MANUFACTURER OF LOW-PRICE, HIGH
TURNOVER HOUSEHOLD PRODUCTS SOLD THROUGH GROCERY, DRUG, AND DEPARTMENT
STORES.  PRIOR TO ITS ACQUISITION OF CLOROX, IT DID NOT PRODUCE
HOUSEHOLD LIQUID BLEACH.  ITS 1957 SALES WERE IN EXCESS OF
$1,100,000,000 FROM WHICH IT REALIZED PROFITS OF MORE THAN $67,000,000;
ITS ASSETS WERE OVER $500,000,000.  PROCTER HAS BEEN MARKED BY RAPID
GROWTH AND DIVERSIFICATION.  IT HAS SUCCESSFULLY DEVELOPED AND
INTRODUCED A NUMBER OF NEW PRODUCTS.  ITS PRIMARY ACTIVITY IS IN THE
GENERAL AREA OF SOAPS, DETERGENTS, AND CLEANSERS; IN 1957, OF TOTAL
DOMESTIC SALES, MORE THAN ONE-HALF (OVER $500,000,000) WERE IN THIS
FIELD.  PROCTER WAS THE DOMINANT FACTOR IN THIS AREA.  IT ACCOUNTED FOR
54.4% OF ALL PACKAGED DETERGENT SALES.  THE INDUSTRY IS HEAVILY
CONCENTRATED - PROCTER AND ITS NEAREST COMPETITORS, COLGATE-PALMOLIVE
AND LEVER BROTHERS, ACCOUNT FOR 80% OF THE MARKET. 

IN THE MARKETING OF SOAPS, DETERGENTS, AND CLEANSERS, AS IN THE
MARKETING OF HOUSEHOLD LIQUID BLEACH, ADVERTISING AND SALES PROMOTION
ARE VITAL.  IN 1957, PROCTER WAS THE NATION'S LARGEST ADVERTISER,
SPENDING MORE THAN $80,000,000 ON ADVERTISING AND AN ADDITIONAL
$47,000,000 ON SALES PROMOTION.  DUE TO ITS TREMENDOUS VOLUME, PROCTER
RECEIVES SUBSTANTIAL DISCOUNTS FROM THE MEDIA.  AS A MULTIPRODUCT
PRODUCER PROCTER ENJOYS SUBSTANTIAL ADVANTAGES IN ADVERTISING AND SALES
PROMOTION.  THUS, IT CAN AND DOES FEATURE SEVERAL PRODUCTS IN ITS
PROMOTIONS, REDUCING THE PRINTING, MAILING, AND OTHER COSTS FOR EACH
PRODUCT.  IT ALSO PURCHASES NETWORK PROGRAMS ON BEHALF OF SEVERAL
PRODUCTS, ENABLING IT TO GIVE EACH PRODUCT NETWORK EXPOSURE AT A
FRACTION OF THE COST PER PRODUCT THAT A FIRM WITH ONLY ONE PRODUCT TO
ADVERTISE WOULD INCUR. 

PRIOR TO THE ACQUISITION, PROCTER WAS IN THE COURSE OF DIVERSIFYING
INTO PRODUCT LINES RELATED TO ITS BASIC DETERGENT-SOAP-CLEANSER
BUSINESS.  LIQUID BLEACH WAS A DISTINCT POSSIBILITY SINCE PACKAGED
DETERGENTS - PROCTER'S PRIMARY PRODUCT LINE - AND LIQUID BLEACH ARE
USED COMPLEMENTARILY IN WASHING CLOTHES AND FABRICS, AND IN GENERAL
HOUSEHOLD CLEANING.  AS NOTED BY THE COMMISSION: 

"PACKAGED DETERGENTS - PROCTER'S MOST IMPORTANT PRODUCT CATEGORY -
AND HOUSEHOLD LIQUID BLEACH ARE USED COMPLEMENTARILY, NOT ONLY IN THE
WASHING OF CLOTHES AND FABRICS, BUT ALSO IN GENERAL HOUSEHOLD CLEANING,
SINCE LIQUID BLEACH IS A GERMICIDE AND DISINFECTANT AS WELL AS A
WHITENER.  FROM THE CONSUMER'S VIEWPOINT, THEN, PACKAGED DETERGENTS AND
LIQUID BLEACH ARE CLOSELY RELATED PRODUCTS.  BUT THE AREA OF
RELATEDNESS BETWEEN PRODUCTS OF PROCTER AND OF CLOROX IS WIDER. 
HOUSEHOLD CLEANSING AGENTS IN GENERAL, LIKE HOUSEHOLD LIQUID BLEACH,
ARE LOW-COST, HIGH-TURNOVER HOUSEHOLD CONSUMER GOODS MARKETED CHIEFLY
THROUGH GROCERY STORES AND PRE-SOLD TO THE CONSUMER BY THE MANUFACTURER
THROUGH MASS ADVERTISING AND SALES PROMOTIONS.  SINCE PRODUCTS OF BOTH
PARTIES TO THE MERGER ARE SOLD TO THE SAME CUSTOMERS, AT THE SAME
STORES, AND BY THE SAME MERCHANDISING METHODS, THE POSSIBILITY ARISES
OF SIGNIFICANT INTEGRATION AT BOTH THE MARKETING AND DISTRIBUTION
LEVELS."  63 F.T.C. - , - . 

THE DECISION TO ACQUIRE CLOROX WAS THE RESULT OF A STUDY CONDUCTED BY
PROCTER'S PROMOTION DEPARTMENT DESIGNED TO DETERMINE THE ADVISABILITY
OF ENTERING THE LIQUID BLEACH INDUSTRY.  THE INITIAL REPORT NOTED THE
ASCENDANCY OF LIQUID BLEACH IN THE LARGE AND EXPANDING HOUSEHOLD BLEACH
MARKET, AND RECOMMENDED THAT PROCTER PURCHASE CLOROX RATHER THAN ENTER
INDEPENDENTLY.  SINCE A LARGE INVESTMENT WOULD BE NEEDED TO OBTAIN A
SATISFACTORY MARKET SHARE, ACQUISITION OF THE INDUSTRY'S LEADING FIRM
WAS ATTRACTIVE.  "TAKING OVER THE CLOROX BUSINESS  ...  COULD BE A WAY
OF ACHIEVING A DOMINANT POSITION IN THE LIQUID BLEACH MARKET QUICKLY,
WHICH WOULD PAY OUT REASONABLY WELL."  63 F.T.C., AT - .  THE INITIAL
REPORT PREDICTED THAT PROCTER'S "SALES, DISTRIBUTION AND MANUFACTURING
SETUP" COULD INCREASE CLOROX'S SHARE OF THE MARKETS IN AREAS WHERE IT
WAS LOW.  THE FINAL REPORT CONFIRMED THE CONCLUSIONS OF THE INITIAL
REPORT AND EMPHASIZED THAT PROCTER COULD MAKE MORE EFFECTIVE USE OF
CLOROX'S ADVERTISING BUDGET AND THAT THE MERGER WOULD FACILITATE
ADVERTISING ECONOMIES.  A FEW MONTHS LATER, PROCTER ACQUIRED THE ASSETS
OF CLOROX IN THE NAME OF A WHOLLY OWNED SUBSIDIARY, THE CLOROX COMPANY,
IN EXCHANGE FOR PROCTER STOCK. 

THE COMMISSION FOUND THAT THE ACQUISITION MIGHT SUBSTANTIALLY LESSEN
COMPETITION.  THE FINDINGS AND REASONING OF THE COMMISSION NEED BE ONLY
BRIEFLY SUMMARIZED.  THE COMMISSION FOUND THAT THE SUBSTITUTION OF
PROCTER WITH ITS HUGE ASSETS AND ADVERTISING ADVANTAGES FOR THE ALREADY
DOMINANT CLOROX WOULD DISSUADE NEW ENTRANTS AND DISCOURAGE ACTIVE
COMPETITION FROM THE FIRMS ALREADY IN THE INDUSTRY DUE TO FEAR OF
RETALIATION BY PROCTER.  THE COMMISSION THOUGHT IT RELEVANT THAT
RETAILERS MIGHT BE INDUCED TO GIVE CLOROX PREFERRED SHELF SPACE SINCE
IT WOULD BE MANUFACTURED BY PROCTER, WHICH ALSO PRODUCED A NUMBER OF
OTHER PRODUCTS MARKETED BY THE RETAILERS.  THERE WAS ALSO THE DANGER
THAT PROCTER MIGHT UNDERPRICE CLOROX IN ORDER TO DRIVE OUT COMPETITION,
AND SUBSIDIZE THE UNDERPRICING WITH REVENUE FROM OTHER PRODUCTS.  THE
COMMISSION CAREFULLY REVIEWED THE EFFECT OF THE ACQUISITION ON THE
STRUCTURE OF THE INDUSTRY, NOTING THAT "THE PRACTICAL TENDENCY OF THE
... MERGER  ...  IS TO TRANSFORM THE LIQUID BLEACH INDUSTRY INTO AN
ARENA OF BIG BUSINESS COMPETITION ONLY, WITH THE FEW SMALL FIRMS THAT
HAVE NOT DISAPPEARED THROUGH MERGER EVENTUALLY FALLING BY THE WAYSIDE,
UNABLE TO COMPETE WITH THEIR GIANT RIVALS."  63 F.T.C., AT - .
FURTHER, THE MERGER WOULD SERIOUSLY DIMINISH POTENTIAL COMPETITION BY
ELIMINATING PROCTER AS A POTENTIAL ENTRANT INTO THE INDUSTRY.  PRIOR TO
THE MERGER, THE COMMISSION FOUND, PROCTER WAS THE MOST LIKELY
PROSPECTIVE ENTRANT, AND ABSENT THE MERGER WOULD HAVE REMAINED ON THE
PERIPHERY, RESTRAINING CLOROX FROM EXERCISING ITS MARKET POWER.  IF
PROCTER HAD ACTUALLY ENTERED, CLOROX'S DOMINANT POSITION WOULD HAVE
BEEN ERODED AND THE CONCENTRATION OF THE INDUSTRY REDUCED.  THE
COMMISSION STATED THAT IT HAD NOT PLACED RELIANCE ON POST-ACQUISITION
EVIDENCE IN HOLDING THE MERGER UNLAWFUL. 

THE COURT OF APPEALS SAID THAT THE COMMISSION'S FINDING OF ILLEGALITY
HAD BEEN BASED ON "TREACHEROUS CONJECTURE," MERE POSSIBILITY AND
SUSPICION.  358 F.2D 74, 83.  IT DISMISSED THE FACT THAT CLOROX
CONTROLLED ALMOST 50% OF THE INDUSTRY, THAT TWO FIRMS CONTROLLED 65%,
AND THAT SIX FIRMS CONTROLLED 80% WITH THE OBSERVATION THAT "THE FACT
THAT IN ADDITION TO THE SIX  ...  PRODUCERS SHARING EIGHTY PER CENT OF
THE MARKET, THERE WERE TWO HUNDRED SMALLER PRODUCERS  ...  WOULD NOT
SEEM TO INDICATE ANYTHING UNHEALTHY ABOUT THE MARKET CONDITIONS."  ID.,
AT 80.  IT DISMISSED THE FINDING THAT PROCTER, WITH ITS HUGE RESOURCES
AND PROWESS, WOULD HAVE MORE LEVERAGE THAN CLOROX WITH THE STATEMENT
THAT IT WAS CLOROX WHICH HAD THE "KNOWHOW" IN THE INDUSTRY, AND THAT
CLOROX'S FINANCES WERE ADEQUATE FOR ITS PURPOSES.  IBID.  AS FOR THE
POSSIBILITY THAT PROCTER WOULD USE ITS TREMENDOUS ADVERTISING BUDGET
AND VOLUME DISCOUNTS TO PUSH CLOROX, THE COURT FOUND "IT DIFFICULT TO
BASE A FINDING OF ILLEGALITY ON DISCOUNTS IN ADVERTISING."  358 F.2D,
AT 81.  IT REJECTED THE COMMISSION'S FINDING THAT THE MERGER ELIMINATED
THE POTENTIAL COMPETITION OF PROCTER BECAUSE "THERE WAS NO REASONABLE
PROBABILITY THAT PROCTER WOULD HAVE ENTERED THE HOUSEHOLD LIQUID BLEACH
MARKET BUT FOR THE MERGER."  358 F.2D, AT 83.  "THERE WAS NO EVIDENCE
TENDING TO PROVE THAT PROCTER EVER INTENDED TO ENTER THIS FIELD ON ITS
OWN."  358 F.2D, AT 82.  FINALLY, "THERE WAS NO EVIDENCE THAT PROCTER
AT ANY TIME IN THE PAST ENGAGED IN PREDATORY PRACTICES, OR THAT IT
INTENDED TO DO SO IN THE FUTURE."  IBID. 

THE COURT OF APPEALS ALSO HEAVILY RELIED ON POST-ACQUISITION
"EVIDENCE  ...  TO THE EFFECT THAT THE OTHER PRODUCERS SUBSEQUENT TO
THE MERGER WERE SELLING MORE BLEACH FOR MORE MONEY THAN EVER BEFORE"
(358 F.2D, AT 80), AND THAT "THERE HAD BEEN NO SIGNIFICANT CHANGE IN
CLOROX'S MARKET SHARE IN THE FOUR YEARS SUBSEQUENT TO THE MERGER"
IBID., AND CONCLUDED THAT "THIS EVIDENCE CERTAINLY DOES NOT PROVE ANTI
COMPETITIVE EFFECTS OF THE MERGER."  ID., AT 82.  THE COURT OF APPEALS,
IN OUR VIEW, MISAPPREHENDED THE STANDARDS FOR ITS REVIEW AND THE
STANDARDS APPLICABLE IN A SEC 7 PROCEEDING.    SECTION 7 OF THE CLAYTON
ACT WAS INTENDED TO ARREST THE ANTICOMPETITIVE EFFECTS OF MARKET POWER
IN THEIR INCIPIENCY.  THE CORE QUESTION IS WHETHER A MERGER MAY
SUBSTANTIALLY LESSEN COMPETITION, AND NECESSARILY REQUIRES A PREDICTION
OF THE MERGER'S IMPACT ON COMPETITION, PRESENT AND FUTURE.  SEE BROWN
SHOE CO. V. UNITED STATES, 370 U.S. 294; UNITED STATES V. PHILADELPHIA
NATIONAL BANK, 374 U.S. 321.  THE SECTION CAN DEAL ONLY WITH
PROBABILITIES, NOT WITH CERTAINTIES.  BROWN SHOE CO. V. UNITED STATES,
SUPRA, AT 323; UNITED STATES V. PENN-OLIN CHEMICAL CO., 378 U.S. 158. 
AND THERE IS CERTAINLY NO REQUIREMENT THAT THE ANTICOMPETITIVE POWER
MANIFEST ITSELF IN ANTICOMPETITIVE ACTION BEFORE SEC 7 CAN BE CALLED
INTO PLAY.  IF THE ENFORCEMENT OF SEC 7 TURNED ON THE EXISTENCE OF
ACTUAL ANTICOMPETITIVE PRACTICES, THE CONGRESSIONAL POLICY OF THWARTING
SUCH PRACTICES IN THEIR INCIPIENCY WOULD BE FRUSTRATED. 

ALL MERGERS ARE WITHIN THE REACH OF SEC 7, AND ALL MUST BE TESTED BY
THE SAME STANDARD, WHETHER THEY ARE CLASSIFIED AS HORIZONTAL, VERTICAL,
CONGLOMERATE  (FN2)  OR OTHER.  AS NOTED BY THE COMMISSION, THIS MERGER
IS NEITHER HORIZONTAL, VERTICAL, NOR CONGLOMERATE.  SINCE THE PRODUCTS
OF THE ACQUIRED COMPANY ARE COMPLEMENTARY TO THOSE OF THE ACQUIRING
COMPANY AND MAY BE PRODUCED WITH SIMILIAR FACILITIES, MARKETED THROUGH
THE SAME CHANNELS AND IN THE SAME MANNER, AND ADVERTISED BY THE SAME
MEDIA, THE COMMISSION APTLY CALLED THIS ACQUISITION A "PRODUCT
EXTENSION MERGER": 

"BY THIS ACQUISITION  ...  PROCTER HAS NOT DIVERSIFIED ITS INTERESTS
IN THE SENSE OF EXPANDING INTO A SUBSTANTIALLY DIFFERENT, UNFAMILIAR
MARKET OR INDUSTRY.  RATHER, IT HAS ENTERED A MARKET WHICH ADJOINS, AS
IT WERE, THOSE MARKETS IN WHICH IT IS ALREADY ESTABLISHED, AND WHICH IS
VIRTUALLY INDISTINGUISHABLE FROM THEM INSOFAR AS THE PROBLEMS AND
TECHNIQUES OF MARKETING THE PRODUCT TO THE ULTIMATE CONSUMER ARE
CONCERNED.  AS A HIGH OFFICIAL OF PROCTER PUT IT, COMMENTING ON THE
ACQUISITION OF CLOROX, 'WHILE THIS IS A COMPLETELY NEW BUSINESS FOR US,
TAKING US FOR THE FIRST TIME INTO THE MARKETING OF A HOUSEHOLD BLEACH
AND DISINFECTANT, WE ARE THOROUGHLY AT HOME IN THE FIELD OF
MANUFACTURING AND MARKETING LOW PRICED, RAPID TURN-OVER CONSUMER
PRODUCTS,'"  63 F.T.C. - , - . 

THE ANTICOMPETITIVE EFFECTS WITH WHICH THIS PRODUCT-EXTENSION MERGER
IS FRAUGHT CAN EASILY BE SEEN: (1) THE SUBSTITUTION OF THE POWERFUL
ACQUIRING FIRM FOR THE SMALLER, BUT ALREADY DOMINANT, FIRM MAY
SUBSTANTIALLY REDUCE THE COMPETITIVE STRUCTURE OF THE INDUSTRY BY
RAISING ENTRY BARRIERS AND BY DISSUADING THE SMALLER FIRMS FROM
AGGRESSIVELY COMPETING; (2) THE ACQUISITION ELIMINATES THE POTENTIAL
COMPETITION OF THE ACQUIRING FIRM. 

THE LIQUID BLEACH INDUSTRY WAS ALREADY OLIGOPOLISTIC BEFORE THE
ACQUISITION, AND PRICE COMPETITION WAS CERTAINLY NOT AS VIGOROUS AS IT
WOULD HAVE BEEN IF THE INDUSTRY WERE COMPETITIVE.  CLOROX ENJOYED A
DOMINANT POSITION NATIONALLY, AND ITS POSITION APPROACHED MONOPOLY
PROPORTIONS IN CERTAIN AREAS.  THE EXISTENCE OF SOME 200 FRINGE FIRMS
CERTAINLY DOES NOT BELIE THAT FACT.  NOR DOES THE FACT, RELIED UPON BY
THE COURT BELOW, THAT, AFTER THE MERGER, PRODUCERS OTHER THAN CLOROX
"WERE SELLING MORE BLEACH FOR MORE MONEY THAN EVER BEFORE."  358 F.2D,
AT 80.  IN THE SAME PERIOD, CLOROX INCREASED ITS SHARE FROM 48.8% TO
52%. THE INTERJECTION OF PROCTER INTO THE MARKET CONSIDERABLY CHANGED
THE SITUATION.  THERE IS EVERY REASON TO ASSUME THAT THE SMALLER FIRMS
WOULD BECOME MORE CAUTIOUS IN COMPETING DUE TO THEIR FEAR OF
RETALIATION BY PROCTER.  IT IS PROBABLE THAT PROCTER WOULD BECOME THE
PRICE LEADER AND THAT OLIGOPOLY WOULD BECOME MORE RIGID. 

THE ACQUISITION MAY ALSO HAVE THE TENDENCY OF RAISING THE BARRIERS TO
NEW ENTRY.  THE MAJOR COMPETITIVE WEAPON IN THE SUCCESSFUL MARKETING OF
BLEACH IS ADVERTISING.  CLOROX WAS LIMITED IN THIS AREA BY ITS
RELATIVELY SMALL BUDGET AND ITS INABILITY TO OBTAIN SUBSTANTIAL
DISCOUNTS.  BY CONTRAST, PROCTER'S BUDGET WAS MUCH LARGER; AND,
ALTHOUGH IT WOULD NOT DEVOTE ITS ENTIRE BUDGET TO ADVERTISING CLOROX,
IT COULD DIVERT A LARGE PORTION TO MEET THE SHORT-TERM THREAT OF A NEW
ENTRANT.  PROCTER WOULD BE ABLE TO USE ITS VOLUME DISCOUNTS TO
ADVANTAGE IN ADVERTISING CLOROX.  THUS, A NEW EXTRANT WOULD BE MUCH
MORE RELUCTANT TO FACE THE GIANT PROCTER THAN IT WOULD HAVE BEEN TO
FACE THE SMALLER CLOROX.  (FN3) 

POSSIBLE ECONOMIES CANNOT BE USED AS A DEFENSE TO ILLEGALITY. 
CONGRESS WAS AWARE THAT SOME MERGERS WHICH LESSEN COMPETITION MAY ALSO
RESULT IN ECONOMIES BUT IT STRUCK THE BALANCE IN FAVOR OF PROTECTING
COMPETITION.  SEE BROWN SHOE CO. V. UNITED STATES, SUPRA, AT 344. 

THE COMMISSION ALSO FOUND THAT THE ACQUISITION OF CLOROX BY PROCTER
ELIMINATED PROCTER AS A POTENTIAL COMPETITOR.  THE COURT OF APPEALS
DECLARED THAT THIS FINDING WAS NOT SUPPORTED BY EVIDENCE BECAUSE THERE
WAS NO EVIDENCE THAT PROCTER'S MANAGMENT HAD EVER INTENDED TO ENTER THE
INDUSTRY INDEPENDENTLY AND THAT PROCTER HAD NEVER ATTEMPTED TO ENTER. 
THE EVIDENCE, HOWEVER, CLEARLY SHOWS THAT PROCTER WAS THE MOST LIKELY
ENTRANT.  PROCTER HAD RECENTLY LAUNCHED A NEW ABRASIVE CLEANER IN AN
INDUSTRY SIMILAR TO THE LIQUID BLEACH INDUSTRY, AND HAD WRESTED
LEADERSHIP FROM A BRAND THAT HAD ENJOYED EVEN A LARGER MARKET SHARE
THAN HAD CLOROX.  PROCTER WAS ENGAGED IN A VIGOROUS PROGRAM OF
DIVERSIFYING INTO PRODUCT LINES CLOSELY RELATED TO ITS BASIC PRODUCTS. 
LIQUID BLEACH WAS A NATURAL AVENUE OF DIVERSIFICATION SINCE IT IS
COMPLEMENTARY TO PROCTER'S PRODUCTS, IS SOLD TO THE SAME CUSTOMERS
THROUGH THE SAME CHANNELS, AND IS ADVERTISED AND MERCHANDISED IN THE
SAME MANNER.  PROCTER HAD SUBSTANTIAL ADVANTAGES IN ADVERTISING AND
SALES PROMOTION, WHICH, AS WE HAVE SEEN, ARE VITAL TO THE SUCCESS OF
LIQUID BLEACH.  NO MANUFACTURER HAD A PATENT ON THE PRODUCT OR ITS
MANUFACTURE, NECESSARY INFORMATION RELATING TO MANUFACTURING METHODS
AND PROCESSES WAS READILY AVAILABLE, THERE WAS NO SHORTAGE OF RAW
MATERIAL, AND THE MACHINERY AND EQUIPMENT REQUIRED FOR A PLANT OF
EFFICIENT CAPACITY WERE AVAILABLE AT REASONABLE COST.  PROCTER'S
MANAGEMENT WAS EXPERIENCED IN PRODUCING AND MARKETING GOODS SIMILAR TO
LIQUID BLEACH.  PROCTER HAD CONSIDERED THE POSSIBILITY OF INDEPENDENTLY
ENTERING BUT DECIDED AGAINST IT BECAUSE THE ACQUISITION OF CLOROX WOULD
ENABLE PROCTER TO CAPTURE A MORE COMMANDING SHARE OF THE MARKET. 

IT IS CLEAR THAT THE EXISTENCE OF PROCTER AT THE EDGE OF THE INDUSTRY
EXERTED CONSIDERABLE INFLUENCE ON THE MARKET.  FIRST, THE MARKET
BEHAVIOR OF THE LIQUID BLEACH INDUSTRY WAS INFLUENCED BY EACH FIRM'S
PREDICITONS OF THE MARKET BEHAVIOR OF ITS COMPETITORS, ACTUAL AND
POTENTIAL.  SECOND, THE BARRIERS TO ENTRY BY A FIRM OF PROCTER'S SIZE
AND WITH ITS ADVANTAGES WERE NOT SIGNIFICANT.  THERE IS NO INDICATION
THAT THE BARRIERS WERE SO HIGH THAT THE PRICE PROCTER WOULD HAVE TO
CHARGE WOULD BE ABOVE THE PRICE THAT WOULD MAXIMIZE THE PROFITS OF THE
EXISTING FIRMS.  THIRD, THE NUMBER OF POTENTIAL ENTRANTS WAS NOT SO
LARGE THAT THE ELIMINATION OF ONE WOULD BE INSIGNIFICANT.  FEW FIRMS
WOULD HAVE THE TEMERITY TO CHALLENGE A FIRM AS SOLIDLY ENTRENCHED AS
CLOROX.  FOURTH, PROCTER WAS FOUND BY THE COMMISSION TO BE THE MOST
LIKELY ENTRANT.  THESE FINDINGS OF THE COMMISSION WERE AMPLY SUPPORTED
BY THE EVIDENCE. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND REMANDED WITH
INSTRUCTIONS TO AFFIRM AND ENFORCE THE COMMISSION'S ORDER.  IT IS SO
ORDERED. 

FN1  "NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

FN2  A PURE CONGLOMERATE MERGER IS ONE IN WHICH THERE ARE NO ECONOMIC
RELATIONSHIPS BETWEEN THE ACQUIRING AND THE ACQUIRED FIRM. 

FN3  THE BARRIERS TO ENTRY HAVE BEEN RAISED BOTH FOR ENTRY BY NEW
FIRMS AND FOR ENTRY INTO NEW GEOGRAPHICAL MARKETS BY ESTABLISHED
FIRMS.  THE LATTER ASPECT IS DEMONSTRATED BY PUREX'S LESSON IN ERIE,
PENNSYLVANIA.  IN OCTOBER 1957, PUREX SELECTED ERIE, PENNSYLVANIA -
WHERE IT HAD NOT SOLD PREVIOUSLY - AS AN AREA IN WHICH TO TEST THE
SALABILITY, UNDER COMPETITIVE CONDITIONS, OF A NEW BLEACH.  THE LEADING
BRANDS IN ERIE WERE CLOROX, WITH 52%, AND THE "101" BRAND, SOLD BY
GARDNER MANUFACTURING COMPANY, WITH 29% OF THE MARKET. 

PUREX LAUNCHED AN ADVERTISING AND PROMOTIONAL CAMPAIGN TO OBTAIN A
BROAD DISTRIBUTION IN A SHORT TIME, AND IN FIVE MONTHS CAPTURED 33% OF
THE ERIE MARKET.  CLOROX'S SHARE DROPPED TO 35% AND 101'S TO 17%.
CLOROX RESPONDED BY OFFERING ITS BLEACH AT REDUCED PRICES, AND THEN
ADDED AN OFFER OF A $1-VALUE IRONING BOARD COVER FOR 50 CENTS WITH EACH
PURCHASE OF CLOROX AT THE REDUCED PRICE.  IT ALSO INCREASED ITS
ADVERTISING WITH TELEVISION SPOTS.  THE RESULT WAS TO RESTORE CLOROX'S
LOST MARKET SHARE AND, INDEED, TO INCREASE IT SLIGHTLY.  PUREX'S SHARE
FELL TO 7%. 

SINCE THE MERGER PUREX HAS ACQUIRED THE FOURTH LARGEST PRODUCER OF
BLEACH, JOHN PUHL PRODUCTS COMPANY, WHICH OWNED AND MARKETED "FLEECY
WHITE" BRAND IN GEOGRAPHIC MARKETS WHICH PUREX WAS ANXIOUS TO ENTER. 
ONE OF THE REASONS FOR THIS ACQUISITION, ACCORDING TO PUREX'S
PRESIDENT, WAS THAT: 

"PUREX HAD BEEN UNSUCCESSFUL IN EXPANDING ITS MARKET POSITION
GEOGRAPHICALLY ON PUREX LIQUID BLEACH.  THE ECONOMICS OF THE BLEACH
BUSINESS, AND THE STRONG COMPETITIVE FACTORS AS ILLUSTRATED BY OUR
EXPERIENCE IN ERIE, PENNSYLVANIA, MAKE IT IMPOSSIBLE, IN OUR JUDGMENT,
FOR US TO EXPAND OUR MARKET ON LIQUID BLEACH." 

MR. JUSTICE STEWART AND MR. JUSTICE FORTAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I AGREE THAT THE COMMISSION'S ORDER SHOULD BE SUSTAINED, BUT I DO NOT
SHARE THE MAJORITY OPINION'S VIEW THAT A MERE "SUMMARY WILL DEMONSTRATE
THE CORRECTNESS OF THE COMMISSION'S DECISION" NOR THAT "THE
ANTICOMPETITIVE EFFECTS WITH WHICH THIS PRODUCT-EXTENSION MERGER IS
FRAUGHT CAN EASILY BE SEEN."  I CONSIDER THE CASE DIFFICULT WITHIN ITS
OWN FOUR CORNERS, AND BEYOND THAT, ITS PORTENTS FOR FUTURE
ADMINISTRATIVE AND JUDICIAL APPLICATION OF SEC 7 OF THE CLAYTON ACT TO
THIS KIND OF MERGER IMPORTANT AND FAR-REACHING.  FROM BOTH STANDPOINTS
MORE REFINED ANALYSIS IS REQUIRED BEFORE PUTTING THE STAMP OF APPROVAL
ON WHAT THE COMMISSION HAS DONE IN THIS CASE.  IT IS REGRETTABLE TO SEE
THIS COURT AS IT ENTERS THIS COMPARATIVELY NEW FIELD OF ECONOMIC
ADJUDICATION STARTING OFF WITH WHAT HAS ALMOST BECOME A KIND OF RES
IPSA LOQUITUR APPROACH TO ANTITRUST CASES. 

THE TYPE OF MERGER REPRESENTED BY THE TRANSACTION BEFORE US IS
BECOMING INCREASINGLY IMPORTANT AS LARGE CORPORATIONS SEEK TO DIVERSIFY
THEIR OPERATIONS, SEE BLAIR, THE CONGLOMERATE MERGER IN ECONOMICS AND
LAW, 46 GEO. L.J. 672, AND "COMPANIES LOOKING FOR NEW LINES OF BUSINESS
TEND TO BUY INTO THOSE FIELDS WITH WHICH THEY HAVE AT LEAST SOME DEGREE
OF FAMILIARITY, AND WHERE ECONOMIES AND EFFICIENCIES FROM ASSIMILATION
ARE AT LEAST POSSIBLE."  TURNER, CONGLOMERATE MERGERS AND SECTION 7 OF
THE CLAYTON ACT, 78 HARV. L. REV. 1313, 1315.  APPLICATION OF SEC 7 TO
SUCH MERGERS HAS BEEN TROUBLING TO THE COMMISSION AND THE LOWER
COURTS.  THE AUTHOR OF THE COMMISSION'S EXHAUSTIVE OPINION IN THIS CASE
LATER EXPLAINED THAT "THE ELABORATENESS OF THE OPINION  ...  REFLECTED
THE COMMISSION'S AWARENESS THAT IT WAS ENTERING RELATIVELY UNCHARTED
TERRITORY."  GENERAL FOODS CORP., 3 TRADE REG. REP. PARA 17,465
(COMMISSIONER ELMAN, DISSENTING, AT 22,745).  THE SIXTH CIRCUIT WAS
EQUALLY TROUBLED IN THIS CASE BY THE LACK OF STANDARDS IN THE AREA AND
HAD DIFFICULTY IN PERCEIVING ANY EFFECT ON COMPETITION FROM THE MERGER
SINCE "PROCTER MERELY STEPPED INTO THE SHOES OF CLOROX."  358 F.2D 74,
82.  AND IN THE SOMEWHAT SIMILAR SITUATION PRESENTED TO THE SEVENTH
CIRCUIT IN EKEO PRODUCTS CO. V. F.T.C., 347 F.2D 745, THE NEED FOR
COMPREHENSIVE CONSIDERATION OF THE PROBLEM BY THIS COURT WAS LAID
BARE.  THE LOWER COURT THERE ATTEMPTED TO REVIEW THE COMMISSION ACTION
BEFORE IT AS NARROWLY AS POSSIBLE AND REFUSED TO FORMULATE PRINCIPLES
WHICH MIGHT CONTROL OTHER CASES.  IT SAID: 

"IF WE ARE TO HAVE A DIFFERENT STANDARD OR SET OF RULES, ASIDE FROM
THOSE APPLYING TO VERTICAL AND HORIZONTAL COMBINATIONS, TO TEST THE
ILLEGALITY OF CONGLOMERATE MERGERS AND PRODUCT-EXTENSION ACQUISITIONS
IN CASES BROUGHT UNDER SECTION 7 OF THE CLAYTON ACT, WE FEEL COMPELLED
TO LOOK TO THE SUPREME COURT FOR GUIDANCE."  347 F.2D, AT 751. 

I THUS BELIEVE THAT IT IS INCUMBENT UPON US TO MAKE A CAREFUL STUDY
OF THE FACTS AND OPINIONS BELOW IN THIS CASE, AND AT LEAST TO EMBARK
UPON THE FORMULATION OF STANDARDS FOR THE APPLICATION OF SEC 7 TO
MERGERS WHICH ARE NEITHER HORIZONTAL NOR VERTICAL AND WHICH PREVIOUSLY
HAVE NOT BEEN CONSIDERED IN DEPTH BY THIS COURT.  (FN1)  I CONSIDER
THIS ESPECIALLY IMPORTANT IN LIGHT OF THE DIVISIONS WHICH HAVE ARISEN
IN THE COMMISSION ITSELF IN SIMILAR CASES DECIDED SUBSEQUENT TO THIS
ONE.  SEE GENERAL FOODS CORP., SUPRA; NATIONAL TEA CO., 3 TRADE REG.
REP. PARA 17,463.  MY PRIME DIFFICULTY WITH THE COURT'S OPINION IS THAT
IT MAKES NO EFFORT IN THIS DIRECTION AT ALL, AND LEAVES THE COMMISSION,
LAWYERS, AND BUSINESSMEN AT LARGE AS TO WHAT IS TO BE EXPECTED OF THEM
IN FUTURE CASES OF THIS KIND. 

                                             I. 

THE COURT'S OPINION RESTS ON THREE SEPARATE FINDINGS OF
ANTICOMPETITIVE EFFECT.  THE COURT FIRST DELCARES THAT THE MARKET HERE
WAS "OLIGOPOLISTIC" AND THAT INTERJECTION OF PROCTER WOULD MAKE THE
OLIGOPOLY "MORE RIGID" BECAUSE "THERE IS EVERY REASON TO ASSUME THAT
THE SMALLER FIRMS WOULD BECOME MORE CAUTIOUS IN COMPETING DUE TO THEIR
FEAR OF RETALIATION BY PROCTER."  THE COURT, HOWEVER, DOES NOT INDICATE
EXACTLY WHAT REASONS LIE BEHIND THIS ASSUMPTION OR BY WHAT STANDARD
SUCH AN EFFECT IS DEEMED "REASONABLY PROBABLE."  IT COULD EQUALLY BE
ASSUMED THAT SMALLER FIRMS WOULD BECOME MORE AGGRESSIVE IN COMPETING
DUE TO THEIR FEAR THAT OTHERWISE PROCTER MIGHT ULTIMATELY ABSORB THEIR
MARKETS AND THAT PROCTER, AS A NEW ENTRANT IN THE BLEACH FIELD, WAS
VULNERABLE TO ATTACK.    BUT ASSUMPTION IS NO SUBSTITUTE FOR REASONABLE
PROBABILITY AS A MEASURE OF ILLEGALITY UNDER SEC 7, SEE BROWN SHOE CO.
V. UNITED STATES, 370 U.S. 294, 323, AND CONGRESS HAS NOT MANDATED THE
COMMISSION OR THE COURTS "TO CAMPAIGN AGAINST 'SUPERCONCENTRATION' IN
THE ABSENCE OF ANY EVIDENCE OF HARM TO COMPETITION."  TURNER, SUPRA, AT
1395.  MOREOVER, EVEN IF AN EFFECT OF THIS KIND WERE REASONABLY
PREDICTABLE, THE COURT DOES NOT EXPLAIN WHY THE EFFECT ON COMPETITION
SHOULD BE EXPECTED TO BE THE SUBSTANTIAL ONE THAT SEC 7 DEMANDS.  THE
NEED FOR SUBSTANTIALITY CANNOT BE IGNORED, FOR AS A LEADING ECONOMIST
HAS WARNED: 

"IF A SOCIETY WERE TO INTERVENE IN EVERY ACTIVITY WHICH MIGHT
POSSIBLY LEAD TO A REDUCTION OF COMPETITION, REGULATION WOULD BE
UBIQUITOUS AND THE WHOLE PURPOSE OF A PUBLIC POLICY OF COMPETITION
WOULD BE FRUSTRATED."  STIGLER, MERGERS AND PREVENTIVE ANTITRUST
POLICY, 104 U. PA. L. REV. 176, 177. 

THE COURT NEXT STRESSES THE INCREASE IN BARRIERS TO NEW ENTRY INTO
THE LIQUID BLEACH FIELD CAUSED PRIMARILY, IT IS  THOUGHT, BY THE
SUBSTITUTION OF THE LARGER ADVERTISING CAPABILITIES OF PROCTER FOR
THOSE OF CLOROX.  ECONOMIC THEORY WOULD CERTAINLY INDICATE THAT A
HEIGHTENING OF SUCH BARRIERS HAS TAKEN PLACE.  BUT THE COURT DOES NOT
EXPLAIN WHY IT CONSIDERS THIS CHANGE TO HAVE SIGNIFICANCE UNDER SEC. 7,
NOR DOES IT INDICATE WHEN OR HOW ENTRY BARRIERS AFFECT COMPETITION IN A
RELEVANT MARKET.  IN THIS CASE, FOR EXAMPLE, THE DIFFICULTIES OF
INTRODUCING A NEW NATIONALLY ADVERTISED BLEACH WERE ALREADY SO GREAT
THAT EVEN A GREAT COMPANY LIKE PROCTER, WHICH THE COURT FINDS THE MOST
LIKELY ENTRANT, BELIEVED THAT ENTRY WOULD NOT "PAY OUT."  (FN2)  WHY
THEN DOES THE COURT FIND THAT A FURTHER INCREASE OF INCALCULABLE
PROPORTIONS IN SUCH BARRIERS SUBSTANTIALLY LESSENS COMPETITION?  SUCH A
CONCLUSION AT LEAST NEEDS THE SUPPORT OF REASONED ANALYSIS.  (FN3) 

FINALLY, THE COURT PLACES MUCH EMPHASIS ON THE LOSS TO THE MARKET OF
THE MOST LIKELY POTENTIAL ENTRANT, PROCTER.  TWO ENTIRELY SEPARATE
ANTICOMPETITIVE EFFECTS MIGHT BE TRACED TO THIS LOSS, AND THE COURT
FAILS TO DISTINGUISH BETWEEN THEM.  THE FIRST IS SIMPLY THAT LOSS OF
THE MOST LIKELY ENTRANT INCREASES THE OPERATIVE BARRIERS TO ENTRY BY
DECREASING THE LIKELIHOOD THAT ANY FIRM WILL ATTEMPT TO SURMOUNT THEM. 
(FN4)  BUT THIS EFFECT MERELY REINFORCES THE COURT'S PREVIOUS ENTRY
BARRIER ARGUMENT, WHICH I DO NOT FIND CONVINCING AS PRESENTED.  THE
SECOND POSSIBLE EFFECT IS THAT A REASONABLY PROBABLE ENTRANT HAS BEEN
EXCLUDED FROM THE MARKET AND A MEASURE OF HORIZONTAL COMPETITION HAS
BEEN LOST.  CERTAINLY THE EXCLUSION OF WHAT WOULD PROMISE TO BE AN
IMPORTANT INDEPENDENT COMPETITOR FROM THE MARKET MAY BE SUFFICIENT, IN
ITSELF, TO SUPPORT A FINDING OF ILLEGALITY UNDER SEC 7, UNITED STATES
V. EL PASO NATURAL GAS CO., 376 U.S. 651, WHEN THE MARKET HAS FEW
COMPETITORS.  THE COMMISSION, HOWEVER, EXPRESSLY REFUSED TO FIND A
REASONABLE PROBABILITY THAT PROCTER WOULD HAVE ENTERED THIS MARKET ON
ITS OWN, AND THE SIXTH CIRCUIT WAS IN EMPHATIC AGREEMENT.  THE COURT
CERTAINLY CANNOT MEAN TO SET ITS JUDGMENT ON THE FACTS AGAINST THE
CONCURRENT FINDINGS BELOW, AND THUS IT SEEMS CLEAR TO ME THAT NO
CONSEQUENCE CAN BE ATTACHED TO THE POSSIBILITY OF LOSS OF PROCTER AS AN
ACTUAL COMPETITOR.  (FN5)  CF. UNITED STATES V. PENN-OLIN CHEMICAL CO.,
378 U.S. 158, 175. 

THUS I BELIEVE, WITH ALL RESPECT, THAT THE COURT HAS FAILED TO MAKE A
CONVINCING ANALYSIS OF THE DIFFICULT PROBLEM PRESENTED, AND WERE NO
MORE TO BE SAID IN FAVOR OF THE COMMISSION'S ORDER I WOULD VOTE TO SET
IT ASIDE. 

                            II. 

THE COURT, FOLLOWING THE COMMISSION, POINTS OUT THAT THIS MERGER IS
NOT A PURE "CONGLOMERATE" MERGER BUT MAY MORE APTLY BE LABELLED A
"PRODUCT-EXTENSION" MERGER.  NO EXPLANATION, HOWEVER, IS OFFERED AS TO
WHY THIS DISTINCTION HAS ANY SIGNIFICANCE AND THE COURT IN FACT
DECLARES THAT ALL MERGERS, WHATEVER THEIR NATURE, "MUST BE TESTED BY
THE SAME STANDARD."  BUT NO MATTER WHAT LABEL IS ATTACHED TO THIS
TRANSACTION, IT CERTAINLY MUST BE RECOGNIZED THAT THE PROBLEM WE FACE
IS VASTLY DIFFERENT FROM THOSE WHICH CONCERNED THE COURT IN BROWN SHOE,
SUPRA, AND UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321. 
AND THOUGH IT IS ENTIRELY PROPER TO ASSERT THAT THE WORDS OF SEC 7 ARE
THE ONLY STANDARD WE HAVE WITH WHICH TO WORK, IT IS EQUALLY IMPORTANT
TO RECOGNIZE THAT DIFFERENT SETS OF CIRCUMSTANCES MAY CALL FOR
FUNDAMENTALLY DIFFERENT TESTS OF SUBSTANTIAL ANTICOMPETITIVE EFFECT. 
COMPARE UNITED STATES V. PHILADELPHIA NATIONAL BANK, SUPRA, WITH FTC V.
CONSOLIDATED FOODS CORP., 380 U.S. 592. 

AT THE OUTSET, IT SEEMS TO ME THAT THERE IS A SERIOUS QUESTION
WHETHER THE STATE OF OUR ECONOMIC KNOWLEDGE IS SUFFICIENTLY ADVANCED TO
ENABLE A SURE-FOOTED ADMINISTRATIVE OR JUDICIAL DETERMINATION TO BE
MADE A PRIORI OF SUBSTANTIAL ANTICOMPETITIVE EFFECT IN MERGERS OF THIS
KIND.  IT IS CLEAR ENOUGH THAT CONGRESS DESIRED THAT CONGLOMERATE AND
PRODUCT-EXTENSION MERGERS BE BROUGHT UNDER SEC 7 SCRUTINY, BUT WELL
VERSED ECONOMISTS HAVE ARGUED THAT SUCH SCRUTINY CAN NEVER LEAD TO A
VALID FINDING OF ILLEGALITY. 

"WHERE A BUSINESS CONCERN BUYS OUT A FIRM PRODUCING  ...  A PRODUCT
WHICH IS NEITHER COMPETING, NOR A RAW MATERIAL FOR ITS OWN PRODUCT  ...
THERE IS NO COMPETITION BETWEEN THEM TO BE EXTINGUISHED, NOR THE
POSSIBILITY OF FEWER ALTERNATIVES FOR ANY CUSTOMER OR SUPPLIER ANYWHERE
... .  PERHAPS CONGRESS INTENDED TO STOP CONGLOMERATE MERGERS BUT
THEIR ACT DOES NOT."  ADELMAN, QUOTED IN BLAIR, SUPRA, AT 674. 

SEE ALSO BOWMAN, CONTRASTS IN ANTITRUST THEORY: II, 65 COL. L. REV.
417, 421. 

LENDING STRENGTH TO THIS POSITION IS THE FACT THAT SUCH MERGERS DO
PROVIDE SIGNIFICANT ECONOMIC BENEFITS WHICH ARGUE AGAINST EXCESSIVE
CONTROLS BEING IMPOSED ON THEM.  THE ABILITY TO MERGE BRINGS LARGE
FIRMS INTO THE MARKET FOR CAPITAL ASSETS AND ENCOURAGE ECONOMIC
DEVELOPMENT BY HOLDING OUT THE INCENTIVE OF EASY AND PROFITABLE
LIQUIDATION TO OTHERS.  HERE, FOR EXAMPLE, THE OWNERS OF CLOROX WHO HAD
BUILT THE BUSINESS, WERE ABLE TO LIQUEFY THEIR CAPITAL ON PROFITABLE
TERMS WITHOUT DISMANTLING THE ENTERPRISE THEY HAD CREATED.  ALSO MERGER
ALLOWS AN ACTIVE MANAGEMENT TO MOVE RAPIDLY INTO NEW MARKETS BRINGING
WITH ITS INTERVENTION COMPETITIVE STIMULATION AND INNOVATION.  IT
PERMITS A LARGE CORPORATION TO PROTECT ITS SHAREHOLDERS FROM BUSINESS
FLUCTUATION THROUGH DIVERSIFICATION, AND MAY FACILITATE THE
INTRODUCTION OF CAPITAL RESOURCES, ALLOWING SIGNIFICANT ECONOMIES OF
SCALE, INTO A STAGNATING MARKET.  SEE TURNER, SUPRA, AT 1317. 

AT THE OTHER END OF THE SPECTRUM, IT HAS BEEN ARGUED THAT THE ENTRY
OF A LARGE CONGLOMERATE ENTERPRISE MAY HAVE A DESTRUCTIVE EFFECT ON
COMPETITION IN ANY MARKET.  EDWARDS, CONGLOMERATE BIGNESS AS A SOURCE
OF POWER, IN BUSINESS CONCENTRATION AND PRICE POLICY, REPORT OF
NATIONAL BUREAU OF ECONOMIC RESEARCH, P. 331.  THE BIG COMPANY IS SAID
TO BE ABLE TO "OUTBID, OUTSPEND, OR OUTLOSE THE SMALL ONE  ...  ." 
ID., AT 335.  THUS IT IS CONTENDED THAT A LARGE CONGLOMERATE MAY
UNDERPRICE IN ONE MARKET, ADVERSELY AFFECTING COMPETITION, AND
SUBSIDIZE THE OPERATION BY BENEFITS ACCRUING ELSEHWERE.  (FN6)  IT IS
ALSO ARGUED THAT THE LARGE COMPANY GENERATES PSYCHOLOGICAL PRESSURE
WHICH MAY FORCE SMALLER ONES TO FOLLOW ITS PRICING POLICIES, AND THAT
ITS VERY PRESENCE IN THE MARKET MAY DISCOURAGE ENTRANTS OR MAKE LENDING
INSTITUTIONS UNWILLING TO FINANCE THEM.  EDWARDS, SUPRA, AT 348; SEE
BOK, SECTION 7 OF THE CLAYTON ACT AND THE MERGING OF LAW AND ECONOMICS,
74 HARV. L. REV. 226, 275.  (FN7)  WHILE "BUSINESS BEHAVIOR IS TOO
COMPLEX AND VARIED TO PERMIT OF A SINGLE GENERALIZED EXPLANATION,"
STOCKING, COMMENT, BUSINESS CONCENTRATION AND PRICE POLICY, SUPRA, AT
352, THESE OBSERVATIONS DO INDICATE THAT SIGNIFICANT DANGERS TO
COMPETITION MAY BE PRESENTED BY SOME CONGLOMERATE AND PRODUCT-EXTENSION
MERGERS.  FURTHER, CONGRESSIONAL CONCERN IN ENACTING SEC 7 EXTENDED NOT
ONLY TO ANTICOMPETITIVE BEHAVIOR IN PARTICULAR MARKETS, BUT ALSO TO THE
POSSIBLE ECONOMIC DOMINANCE OF LARGE COMPANIES WHICH HAD GROWN THROUGH
MERGER.  THUS, WHILE FULLY AGREEING THAT MERGERS OF THIS KIND ARE NOT
TO BE REGARDED AS SOMETHING ENTIRELY SET APART FROM SCRUTINY UNDER SEC
7, I AM OF THE VIEW THAT WHEN THIS COURT DOES UNDERTAKE TO ESTABLISH
THE STANDARDS FOR JUDGING THEIR LEGALITY, IT SHOULD PROCEED WITH UTMOST
CIRCUMSPECTION.  MEANWHILE, WITH THIS CASE BEFORE US, I CANNOT ESCAPE
THE NECESSITY OF VENTURING MY OWN VIEWS AS TO SOME OF THE GOVERNING
STANDARDS. 

            III. 

IN ADJUDICATING HORIZONTAL AND VERTICAL COMBINATIONS UNDER SEC 7
WHERE THE EFFECTS ON COMPETITION ARE REASONABLY OBVIOUS AND
SUBSTANTIALITY IS THE KEY ISSUE, THE RESPONSIBLE AGENCIES HAVE MOVED
AWAY FROM AN INITIAL EMPHASIS ON COMPREHENSIVE SCRUTINY AND OPTED FOR
MORE PRECISE RULES OF THUMB WHICH PROVIDE ADVANTAGES OF ADMINISTRATIVE
CONVENIENCE AND PREDICTABILITY FOR THE BUSINESS WORLD.  SEE BRODLEY,
OLIGOPOLY POWER UNDER THE SHERMAN AND CLAYTON ACTS - FROM ECONOMIC
THEORY TO LEGAL POLICY, 19 STAN.  L. REV. 285.  (FN8)  A CONGLOMERATE
CASE, HOWEVER, IS NOT ONLY TOO NEW TO OUR EXPERIENCE TO ALLOW THE
FORMULATION OF SIMPLE RULES BUT ALSO INVOLVES "CONCEPTS OF ECONOMIC
POWER AND COMPETITIVE EFFECT THAT ARE STILL LARGELY UNFORMULATED." 
THIS MAKES CLEAR THE NEED FOR "FULL INVESTIGATION AND ANALYSIS,
WHATEVER THE COST IN DELAY OR IMMEDIATE INEFFECTIVENESS."  EDWARDS,
TESTS OF PROBABLE EFFECT UNDER THE CLAYTON ACT, 9 ANTITRUST BULL.  369,
377.  BUT CF. BLAIR, SUPRA, AT 700.  CERTAINLY FULL SCALE INVESTIGATION
IS SUPPORTED BY THE CONSIDERATIONS ADVERTED TO IN PART II OF THIS
OPINION AND THE BASIC FACT THAT "THE STATUTE DOES NOT LEAVE US FREE TO
STRIKE DOWN MERGERS ON THE BASIS OF SHEER SPECULATION OR A GENERAL FEAR
OF BIGNESS."  GENERAL FOODS CORP., SUPRA, AT 22,749 (COMMISSIONER
ELMAN, DISSENTING). 

PROCTER, CONTENDING THAT THE BROADEST POSSIBLE INVESTIGATION IS
REQUIRED HERE, AND NOTING "THE RELATIVE POVERTY OF ECONOMIC INFORMATION
ABOUT INDUSTRIAL INSTITUTIONS AND THE RELATIONS AMONG DIFFERENT COMPANY
COMPLEXES, AS WELL AS THE SKETCHINESS OF OUR UNDERSTANDING OF METHODS
OF COMPETITION IN SPECIFIC INDUSTRIES AND MARKETS."  BOCK, THE
RELATIVITY OF ECONOMIC EVIDENCE IN MERGER CASES - EMERGING DECISIONS
FORCE THE ISSUE, 63 MICH. L. REV. 1355, 1369, HAS INSISTED THROUGHOUT
THIS PROCEEDING THAT ANTICOMPETITIVE EFFECTS MUST BE PROVED IN FACT
FROM POST-MERGER EVIDENCE IN ORDER FOR SEC 7 TO BE APPLIED.  THE COURT
GIVES LITTLE ATTENTION TO THIS CONTENTION, BUT I THINK IT MUST BE
CONSIDERED SERIOUSLY, BOTH BECAUSE IT IS ARGUABLE AND BECAUSE IT WAS,
IN A SENSE, THE MAIN SOURCE OF DIFFERENCE BETWEEN THE COMMISSION AND
THE SIXTH CIRCUIT. 

IN ITS INITIAL DECISION, THE COMMISSION REMANDED THE PROCEEDING TO
THE EXAMINER FOR THE EXPRESS PURPOSE OF TAKING ADDITIONAL EVIDENCE ON
THE POST-MERGER SITUATION IN THE LIQUID BLEACH INDUSTRY.  THE
COMMISSION FIRST HELD THAT THE RECORD BEFORE IT, WHICH CONTAINED ALL
THE INFORMATION UPON WHICH THE SECOND COMMISSION DECISION AND THE COURT
RELY, WAS INSUFFICIENT TO SUPPORT THE FINDING OF A SEC 7 VIOLATION.  58
F.T.C. 1203.  THE COMMISSION'S SUBSEQUENT OPINION, HANDED DOWN BY AN
ALMOST ENTIRELY CHANGED COMMISSION, HELD POST-MERGER EVIDENCE GENERALLY
IRRELEVANT AND "PROPER ONLY IN THE UNUSUAL CASE IN WHICH THE STRUCTURE
OF THE MARKET HAS CHANGED RADICALLY SINCE THE MERGER  ...  ."  63
F.T.C. - , - .  MARKET STRUCTURE CHANGES, RATHER THAN EVIDENCE OF
MARKET BEHAVIOR, WERE HELD TO BE THE KEY TO A SEC 7 ANALYSIS. 

IN SUPPORT OF THIS POSITION, THE COMMISSION NOTED THAT DEPENDENCE ON
POST-MERGER EVIDENCE WOULD ALLOW CONTROLS TO BE EVADED BY THE
DISSIMULATION OF MARKET POWER DURING THE PERIOD OF OBSERVATION.  FOR
EXAMPLE, PROCTER HAD BEEN AWARE OF THE SEC 7 CHALLENGE ALMOST FROM THE
DATE OF THE MERGER, (FN9)  AND IT WOULD BE UNREALISTIC, SO REASONED THE
COMMISSION, TO ASSUME THAT MARKET POWER WOULD BE USED ADVERSELY TO
COMPETITION DURING THE PENDENCY OF THE PROCEEDING. 

THE COMMISSION ALSO EMPHASIZED THE DIFFICULTY OF UNSCRAMBLING A
COMPLETED MERGER, AND THE NEED FOR BUSINESSMEN TO BE ABLE TO MAKE AT
LEAST SOME PREDICITONS AS TO THE LEGALITY OF THEIR ACTIONS WHEN
FORMULATING FUTURE MARKET PLANS.  CF. BROMLEY, BUSINESS' VIEW OF THE DU
PONT-GENERAL MOTORS DECISION, 46 GEO. L.J. 646, 653-654.  FINALLY, THE
COMMISSION POINTED TO THE STRAIN WHICH WOULD BE PLACED UPON ITS LIMITED
ENFORCEMENT RESOURCES BY A REQUIREMENT TO ASSEMBLE LARGE AMOUNTS OF
POST-MERGER DATA. 

THE SIXTH CIRCUIT WAS IN DISAGREEMENT WITH THE SECOND COMMISSION'S
VIEW.  IT HELD THAT "ANY RELEVANT EVIDENCE MUST BE CONSIDERED IN A
POST-MERGER CONDITIONS MAY WELL DEPEND ON THE FACTS OF THE CASE, AND
WHERE THE EVIDENCE IS OBTAINED IT SHOULD NOT BE IGNORED."  358 F.2D, AT
83.  THE COURT CHARACTERIZED AS "PURE CONJECTURE" THE FINDING THAT
PROCTER'S BEHAVIOR MIGHT HAVE BEEN INFLUENCED BY THE PENDENCY OF THE
PROCEEDING.  IBID. 

IF SEC 7 IS TO SERVE THE PURPOSES CONGRESS INTENDED FOR IT, WE MUST,
I THINK, STAND WITH THE COMMISSION ON THIS ISSUE.  (FN10)  ONLY BY
FOCUSING ON MARKET STRUCTURE CAN WE BEGIN TO FORMULATE STANDARDS WHICH
WILL ALLOW THE RESPONSIBLE AGENCIES TO GIVE PROPER CONSIDERATION TO
SUCH MERGERS AND ALLOW BUSINESSMEN TO PLAN THEIR ACTIONS WITH A FAIR
DEGREE OF CERTAINTY.  IN THE RECENT AMENDMENTS TO THE BANK MERGER ACT,
CONGRESS HAS INDICATED ITS APPROVAL OF RAPID ADJUDICATION BASED ON
PREMERGER CONDITIONS,  (FN11)  AND ALL AGENCY DECISIONS HINGING ON
COMPETITIVE EFFECTS MUST BE MADE WITHOUT BENEFIT OF POST-COMBINATION
RESULTS.  THE VALUE OF POST-MERGER EVIDENCE SEEMS MORE THAN OFFSET BY
THE DIFFICULTIES ENCOUNTERED IN OBTAINING IT.  AND THE POST-MERGER
EVIDENCE BEFORE US IN THIS PROCEEDING IS AT BEST INCONCLUSIVE. 
DECIDING THAT SEC 7 INQUIRY IN CONGLOMERATE OR PRODUCT-EXTENSION MERGER
CASES SHOULD BE DIRECTED TOWARD REASONABLY PROBABLE CHANGES IN MARKET
STRUCTURE DOES NOT, HOWEVER, DETERMINE HOW THAT INQUIRY SHOULD BE
NARROWED AND FOCUSED.  THE COMMISSION AND THE COURT ISOLATE TWO
SEPARATE STRUCTURAL ELEMENTS, THE DEGREE OF CONCENTRATION IN THE
EXISTING MARKET AND THE "CONDITION OF ENTRY."  THE INTERPLAY OF THESE
TWO FACTORS IS SAID TO DETERMINE THE EXISTENCE AND EXTENT OF MARKET
POWER, SINCE THE "CONDITION OF ENTRY" DETERMINES THE LIMITS POTENTIAL
COMPETITION PLACES ON THE EXISTING MARKET.  IT MUST BE NOTED, HOWEVER,
THAT ECONOMIC THEORY TEACHES THAT POTENTIAL COMPETITION WILL HAVE NO
EFFECT ON THE MARKET BEHAVIOR OF EXISTING FIRMS UNLESS PRESENT MARKET
POWER IS SUFFICIENT TO DRIVE THE MARKET PRICE TO THE POINT WHERE ENTRY
WOULD BECOME A REAL POSSIBILITY.  (FN12)  SO LONG AS EXISTING
COMPETITION IS SUFFICIENT TO KEEP THE MARKET PRICE BELOW THAT POINT,
POTENTIAL COMPETITION IS OF MARGINAL SIGNIFICANCE AS A MARKET
REGULATOR.  THUS IN A CONGLOMERATE OR PRODUCT-EXTENSION CASE, WHERE THE
EFFECTS ON MARKET STRUCTURE WHICH ARE EASIEST TO DISCOVER ARE GENERALLY
EFFECTS ON THE "CONDITON OF ENTRY," AN UNDERSTANDING OF THE WORKINGS OF
THE PREMERGER MARKET CANNOT BE IGNORED, AND, INDEED, IS CRITICAL TO A
DETERMINATION WHETHER THE VISIBLE EFFECTS ON "CONDITION OF ENTRY" HAVE
ANY COMPETITIVE SIGNIFICANCE. 

THE COMMISSION PINNED ITS ANALYSIS OF THE PREMERGER MARKET
EXCLUSIVELY ON ITS CONCENTRATION, THE LARGE MARKET SHARE ENJOYED BY THE
LEADING FIRMS.  IN SO DOING THE COMMISSION WAS FOLLOWING THE PATH TAKEN
BY THIS COURT IN JUDGING MORE CONVENTIONAL MERGER CASES, E.G., UNITED
STATES V. PHILADELPHIA NATIONAL BANK, SUPRA, AND TAKING THE POSITION
FAVORED BY THE GREAT WEIGHT OF ECONOMIC AUTHORITY.  SEE, E.G., BAIN,
INDUSTRIAL ORGANIZATION.  THE SIXTH CIRCUIT DISCOUNTED THE COMMISSION'S
ANALYSIS BECAUSE OF THE PRESENCE OF SOME 200 SMALL COMPETITORS IN THE
MARKET.  THE COURT BASES ITS AGREEMENT WITH THE COMMISSION AND ITS
REJECTION OF THE COURT OF APPEALS' POSITION ON CLOROX'S ALLEGED
DOMINATION OF THE MARKET.  BUT DOMINATION IS AN ELUSIVE TERM, FOR
DOMINANCE IN TERMS OF PERCENTAGE OF SALES IS NOT THE EQUIVALENT OF
DOMINANCE IN TERMS OF CONTROL OVER PRICE OR OTHER ASPECTS OF MARKET
BEHAVIOR.  JUST AS THE TOTAL NUMBER OF SELLERS IN THE MARKET IS NOT
DETERMINATIVE OF ITS OPERATION, THE PERCENTAGE OF SALES MADE BY ANY
GROUP OF SELLERS IS SIMILARLY NOT CONCLUSIVE.  THE DETERMINATIVE ISSUE
IS, INSTEAD, HOW THE SELLERS INTERACT AND ESTABLISH THE PATTERN OF
MARKET BEHAVIOR.  THE SIGNIFICANCE OF CONCENTRATION ANALYSIS IS THAT IT
ALLOWS MEASUREMENT OF ONE EASILY DETERMINED VARIABLE TO SERVE AS AN
OPENING KEY TO THE PATTERN OF MARKET BEHAVIOR. 

I THINK THAT THE COMMISSION, ON THIS RECORD, WAS ENTITLED TO REGARD
THE MARKET AS "OLIGOPOLISTIC" AND THAT IT COULD PROPERLY IGNORE THE
IMPACT OF THE SMALLER FIRMS.  I HASTEN TO ADD, HOWEVER, THAT THERE ARE
SIGNIFICANT "ECONOMIC DISSENTS" FROM OLIGOPOLY ANALYSIS IN GENERAL AND
STRONGER ARGUMENTS THAT IF ITS PRINCIPLES "ARE JUSTIFIED IN SOME CASES,
THEY ARE NOT JUSTIFIED IN ALL CASES  ...  ."  BRODLEY, SUPRA, AT 292. 
IN ADJUDICATING SEC 7 QUESTIONS IN A CONGLOMERATE OR PRODUCT-EXTENSION
MERGER CONTEXT WHERE THE PATTERN OF BEHAVIOR IN THE EXISTING MARKET IS
APT TO BE CRUCIAL, I WOULD, THEREFORE, ALLOW THE INTRODUCTION BY A
DEFENDANT OF EVIDENCE DESIGNED TO SHOW THAT THE ACTUAL OPERATION OF THE
MARKET DID NOT ACCORD WITH OLIGOPOLY THEORY, OR WHATEVER OTHER THEORY
THE COMMISSION DESIRES TO APPLY.  IN OTHER WORDS, I BELIEVE THAT
DEFENDANTS IN SEC 7 PROCEEDINGS ARE ENTITLED, IN THE CASE OF
CONGLOMERATE OR PRODUCT-EXTENSION MERGERS, TO BUILD THEIR OWN ECONOMIC
CASES FOR THE PROPOSITION THAT THE MERGERS WILL NOT SUBSTANTIALLY
IMPAIR COMPETITION. 

FOR EXAMPLE, HAD PROCTER DECIDED TO GO BEYOND DEMONSTRATING THE MERE
PRESENCE OF SMALL COMPETITORS AND ATTEMPTED TO SHOW THAT THE PRICES OF
UNADVERTISED BLEACHES WHICH WERE COST-DETERMINED SET AN EFFECTIVE
CEILING ON MARKET PRICE THROUGH THE MECHANISM OF AN ACCEPTABLE
DIFFERENTIAL,  (FN13)  I THINK THAT THE COMMISSION WOULD HAVE BEEN
OBLIGED TO RECEIVE AND EVALUATE THE PROOF.  BUT TO CHALLENGE
EFFECTIVELY THE PRESUMPTION WHICH THE COMMISSION IS ENTITLED TO DRAW
FROM GENERAL ECONOMIC THEORY, A DEFENDANT MUST PRESENT, IN MY OPINION,
NOT ONLY CONTRADICTORY FACTS BUT A MORE COGENT EXPLANATION OF THE
PATTERN OF MARKET BEHAVIOR. 

IF THE PROOF AS A WHOLE ESTABLISHES THAT PRICING POWER MAY BE
EXERCISED BY A FIRM OR FIRMS IN THE MARKET - THAT PRICES MAY BE RAISED
IN THE LONG RUN OVER COMPETITIVE PRICES - THEN THE COMMISSION MAY
LEGITIMATELY FOCUS ON THE ROLE OF POTENTIAL COMPETITION AND THE
"CONDITION OF ENTRY."  SEE BAIN, BARRIERS TO NEW COMPETITION 5, 27.  IN
SO DOING, HOWEVER, A NEW DIFFICULTY IS ENCOUNTERED.  THE THREAT OF
POTENTIAL COMPETITION MERELY AFFECTS THE RANGE OVER WHICH PRICE POWER
EXTENDS.  POTENTIAL COMPETITION DOES NOT COMPEL MORE VIGOROUS STRIVING
IN THE MARKET, NOR ADVANCE ANY OTHER SOCIAL GOAL WHICH CONGRESS MIGHT
BE SAID TO HAVE FAVORED IN PASSING SEC 7.  (FN14)  THUS IT MAY
LEGITIMATELY BE QUESTIONED WHETHER EVEN A SUBSTANTIAL INCREASE IN ENTRY
BARRIERS CREATES A SUBSTANTIAL LESSENING OF COMPETITION OR TENDENCY TO
MONOPOLY AS REQUIRED BY SEC 7. 

TWO JUSTIFICATIONS FOR THE USE OF ENTRY BARRIERS AS A DETERMINANT
UNDER SEC 7 CAN BE GIVEN.  THE FIRST IS THAT AN INCREASED RANGE OVER
WHICH PRICING POWER MAY BE EXERCISED IS CONTRARY TO THE MANDATE OF SEC
7 BECAUSE CONGRESS' USE OF THE WORD "COMPETITION" WAS A SHORTHAND FOR
THE INVOCATION OF THE BENEFITS OF A COMPETITIVE MARKET, ONE OF WHICH IS
A PRICE CLOSE TO AVERAGE COST.  SUCH AN APPROACH LEADS ALSO TO THE
CONCLUSION THAT ECONOMIC EFFICIENCIES PRODUCED BY THE MERGER MUST BE
WEIGHED AGAINST ANTICOMPETITIVE CONSEQUENCES IN THE FINAL DETERMINATION
WHETHER THE NET EFFECT ON COMPETITION IS SUBSTANTIALLY ADVERSE.  SEE
BORK & BOWMAN, THE CRISIS IN ANTITRUST, 65 COL. L. REV. 363.  THE
SECOND JUSTIFICATION IS FOUND IN THE TENDENCY-TO-MONOPOLY CLAUSE OF SEC
7.  CERTAINLY THE CLEAREST EVIL OF MONOPOLY IS THE EXCESSIVE POWER THE
MONOPOLIST HAS OVER PRICE.  SINCE "ANTITRUST OPERATES TO FORESTALL
CONCENTRATIONS OF ECONOMIC POWER WHICH, IF ALLOWED TO DEVELOP
UNHINDERED, WOULD CALL FOR MUCH MORE INTRUSIVE GOVERNMENT SUPERVISION
OF THE ECONOMY," BLAKE & JONES, IN DEFENSE OF ANTITRUST, 65 COL. L.
REV. 377, 383, INCREASED POWER OVER PRICE SHOULD BE ATTACKABLE UNDER
SEC 7.  CF. S. REP. NO. 1775, 81ST CONG., 2D SESS., 4-5.  FOR THESE
REASONS I CONCLUDE THAT THE COMMISSION MAY PROPERLY FIND A CONGLOMERATE
OR PRODUCT-EXTENSION MERGER ILLEGAL UNDER SEC 7 BECAUSE IT
SUBSTANTIALLY INCREASES PRICING POWER IN THE RELEVANT MARKET. 

GIVEN THE DEVELOPMENT OF A CASE AGAINST THE MERGER IN THIS AREA,
HOWEVER, THE PROBLEM OF EFFICIENCIES RAISED ABOVE MUST STILL BE FACED. 
THE COURT ATTEMPTS TO BRUSH THE QUESTION ASIDE BY ASSERTING THAT
CONGRESS PREFERRED COMPETITION TO ECONOMIES, BUT NEGLECTS TO DETERMINE
WHETHER CERTAIN ECONOMIES ARE INHERENT IN THE IDEA OF COMPETITION.  IF
IT IS CONCEDED, AS IT MUST BE, THAT CONGRESS HAD REASONS FOR FAVORING
COMPETITION, THEN MORE EFFICIENT OPERATION MUST HAVE BEEN AMONG THEM. 
IT IS OF COURSE TRUE THAT A FIRM'S ABILITY TO ACHIEVE ECONOMIES
ENHANCES ITS COMPETITIVE POSITION, BUT ADVERSE EFFECTS ON COMPETITORS
MUST BE DISTINGUISHED FROM ADVERSE EFFECTS ON COMPETITION.  BROWN SHOE
CO. V. UNITED STATES, SUPRA, AT 320.  ECONOMIES ACHIEVED BY ONE FIRM
MAY STIMULATE MATCHING INNOVATION BY OTHERS, THE VERY ESSENCE OF
COMPETITION.  THEY ALWAYS ALLOW THE TOTAL OUTPUT TO BE DELIVERED TO THE
CONSUMER WITH AN EXPENDITURE OF FEWER RESOURCES.  THUS WHEN THE CASE
AGAINST A CONGLOMERATE OR PRODUCT-EXTENSION MERGER RESTS ON A MARKET
STRUCTURE DEMONSTRATION THAT THE LIKELIHOOD OF ANTICOMPETITIVE
CONSEQUENCES HAS BEEN SUBSTANTIALLY INCREASED, THE RESPONSIBLE AGENCY
SHOULD THEN MOVE ON TO EXAMINE AND WEIGH POSSIBLE EFFICIENCIES ARISING
FROM THE MERGER IN ORDER TO DETERMINE WHETHER, ON BALANCE, COMPETITION
HAS BEEN SUBSTANTIALLY LESSENED.  (FN15)  WHERE DETRIMENTS TO
COMPETITION ARE APT TO BE "HIGHLY SPECULATIVE" IT SEEMS WISEST TO
CONCLUDE THAT "POSSIBILITIES OF ADVERSE EFFECTS ON COMPETITIVE BEHAVIOR
ARE WORTH WORRYING ABOUT ONLY WHEN THE MERGER DOES NOT INVOLVE
SUBSTANTIAL ECONOMIES  ...  ."  TURNER, SUPRA, AT 1354.  THE COURT MUST
PROCEED WITH CAUTION IN THIS AREA LEST ITS DECISION "OVER THE LONG RUN
DETER NEW MARKET ENTRY AND TEND TO STIFLE THE VERY COMPETITION IT SEEKS
TO FOSTER."  UNITED STATES V. VON'S GROCERY CO., 384 U.S. 270, 301
(STEWART, J., DISSENTING). 

TO SUMMARIZE THEN, FOUR IMPORTANT GUIDES TO THE ADJUDICATION OF
CONGLOMERATE OR PRODUCT-EXTENSION MERGERS UNDER SEC 7 SEEM TO COME
FORWARD.  FIRST, THE DECISION CAN REST ON ANALYSIS OF MARKET STRUCTURE
WITHOUT RESORT TO EVIDENCE OF POST-MERGER ANTICOMPETITIVE BEHAVIOR. 
SECOND, THE OPERATION OF THE PREMERGER MARKET MUST BE UNDERSTOOD AS THE
FOUNDATION OF SUCCESSFUL ANALYSIS.  THE RESPONSIBLE AGENCY MAY PRESUME
THAT THE MARKET OPERATES IN ACCORD WITH GENERALLY ACCEPTED PRINCIPLES
OF ECONOMIC THEORY, BUT THE PRESUMPTION MUST BE OPEN TO THE CHALLENGE
OF ALTERNATIVE OPERATIONAL FORMULATIONS.  THIRD, IF IT IS REASONABLY
PROBABLE THAT THERE WILL BE A CHANGE IN MARKET STRUCTURE WHICH WILL
ALLOW THE EXERCISE OF SUBSTANTIALLY GREATER MARKET POWER, THEN A PRIMA
FACIE CASE HAS BEEN MADE OUT UNDER SEC 7.  FOURTH, WHERE THE CASE
AGAINST THE MERGER RESTS ON THE PROBABILITY OF INCREASED MARKET POWER,
THE MERGING COMPANIES MAY ATTEMPT TO PROVE THAT THERE ARE
COUNTERVAILING ECONOMIES REASONABLY PROBABLE WHICH SHOULD BE WEIGHED
AGAINST THE ADVERSE EFFECTS. 

                               IV. 

THE COMMISSION'S DECISION DID, I THINK, CONFORM TO THIS ANALYSIS.  A
REVIEW OF THE POINTS THE COMMISSION RELIED UPON IS NEXT REQUIRED. 

THE COMMISSION FIRST ATTEMPTED A CATALOGUE OF ALL THE POSSIBLE
EFFECTS OF THE MERGER ON COMPETITION, MANY OF WHICH WERE "TO AN
IMPORTANT DEGREE PSYCHOLOGICAL."  63 F.T.C., AT - .  MOST OF THESE
"EFFECTS" WERE SPECULATIONS ON THE IMPACT OF PROCTER'S ABILITY TO
OBTAIN ADVERTISING DISCOUNTS AND USE ITS FINANCIAL RESOURCES FOR
INCREASED SALES PROMOTION.  OTHERS WERE PREDICTIONS AS TO THE POSSIBLE
RESPONSES OF RETAILERS AND COMPETITORS TO PROCTER'S ENTRY AND EXPECTED
PROMOTIONAL ACTIVITIES.  THESE WERE, AS THE COURT OF APPEALS SAID,
SPECULATIVE AT BEST BUT THE COMMISSION DID NOT PLACE GREAT RELIANCE ON
THEM IN REACHING ITS ULTIMATE CONCLUSION. 

TO HOLD THE MERGER UNLAWFUL, THE COMMISSION RELIED ON FIVE FACTORS
WHICH TAKEN TOGETHER CONVINCED IT THAT "SUBSTANTIAL" ANTICOMPETITIVE
CONSEQUENCES COULD BE EXPECTED.  A "SUBSTANTIAL" IMPACT WAS SAID TO BE
"SIGNIFICANT AND REAL, AND DISCERNIBLE NOT MERELY TO THEORISTS OR
SCHOLARS BUT TO PRACTICAL, HARD-HEADED BUSINESSMEN."  63 F.T.C., AT - .
THE RELEVANT FACTORS WERE (1) THE EXCESSIVE CONCENTRATION IN THE
INDUSTRY AT THE TIME OF THE MERGER AND THE COMMANDING MARKET POSITION
OF CLOROX, (2) THE RELATIVE DISPARITY IN SIZE AND STRENGTH BETWEEN
PROCTER AND THE FIRMS IN THE LIQUID BLEACH INDUSTRY, (3) THE POSITION
OF PROCTER IN OTHER MARKETS, (4) THE ELIMINATION OF PROCTER AS A
POTENTIAL COMPETITOR, AND (5) THE NATURE OF THE "ECONOMIES" EXPECTED
FROM THE MERGER.  THE NET OF THESE FACTORS WAS TO ESTABLISH A
SUBSTANTIAL EFFECT ON THE MARKET STRUCTURE VARIABLE INVOLVED, CONDITION
OF ENTRY. 

BECAUSE CLOROX HAD 48.8% OF THE PREMERGER MARKET AND SIX FIRMS MADE
80% OF THE SALES, THE COMMISSION'S CONCLUSION THAT THE MARKET WAS
OLIGOPOLISTIC AND CLOROX WAS THE PRICE LEADER MUST BE SUSTAINED ON THIS
RECORD WHERE NO ALTERNATIVE FORMULATION OF MARKET OPERATION WAS
ATTEMPTED.  SEE UNITED STATES V. PHILADELPHIA NATIONAL BANK, SUPRA;
BAIN, INDUSTRIAL ORGANIZATION.  THE COMMISSION'S POSITION IS AIDED BY
ACTUAL EVIDENCE IN THE RECORD SUPPORTING ITS HYPOTHESIS.  OFFICIALS OF
OTHER BLEACH COMPANIES APPEARING IN THE PROCEEDINGS TESTIFIED THAT
THEIR PRICES WERE ESTABLISHED WITH REGARD TO CLOROX'S PRICE AND
UNIFORMLY REGARDED CLOROX AS THE LEADING COMPETITOR IN THE MARKET.  THE
FOUNDATION WAS THUS ADEQUATE FOR A CONSIDERATION OF PROBABLE CHANGES IN
THE "CONDITION OF ENTRY." 

PROCTER WAS INDISPUTABLY MANY TIMES THE SIZE OF ANY FIRM IN THE
LIQUID BLEACH INDUSTRY AND HAD GREAT FINANCIAL RESOURCES.  ITS
ADVERTISING BUDGET WAS MORE THAN 20 TIMES THAT OF CLOROX AND THE SCALE
OF ITS EXPENDITURES QUALIFIED IT FOR QUANTITY DISCOUNTS FROM MEDIA AS
WELL AS ENABLING IT TO PURCHASE EXPENSIVE BUT ADVANTAGEOUS ADVERTISING
OUTLETS.  THE RECORD CLEARLY SHOWED THAT "PRESELLING" THROUGH
ADVERTISING WAS A REQUISITE FOR LARGE SCALE LIQUID BLEACH OPERATIONS,
(FN16) AND THUS THE DIFFERENCE BETWEEN PROCTER'S ADVERTISING POWER AND
THAT OF CLOROX WAS IMPORTANT TO A POTENTIAL ENTRANT.  THE EXPENDITURE
ON ADVERTISING WHICH WOULD HAVE TO BE UNDERTAKEN BY A POTENTIAL ENTRANT
IN ORDER TO CAPTURE AN ACCEPTABLE MARKET WOULD VARY WITH THE TENACITY
OF RESPONSE TO BE EXPECTED FROM EXISTING COMPETITIORS.  THE GREATER THE
EXPENDITURE REQUIRED, THE HIGHER THE PRICE TO BE COMMANDED WOULD HAVE
TO BE BEFORE ENTRY WOULD BE UNDERTAKEN.  (FN17)  IN THIS REGARD THE
SUBSTITUTION OF PROCTER FOR CLOROX WAS A SUBSTANTIAL CHANGE. 
PROCTER'S STRONG POSITION IN OTHER PRODUCT MARKETS IS EQUALLY RELEVANT
TO THE PROBABILITY OF CHANGE IN THE "CONDITION OF ENTRY."  IT WOULD BE
UNREALISTIC, HOWEVER, TO ATTACH SUBSTANTIAL IMPORTANCE TO PROCTER'S
EXTENSIVE FINANCIAL RESOURCES UNLESS PROCTER WERE ABLE TO BRING THEM TO
BEAR IN THE LIQUID BLEACH INDUSTRY.  IF PROCTER WERE HARD PRESSED ALONG
ALL FRONTS OF ITS OPERATION, COMPETITORS COULD SAFELY ASSUME THAT
INCREASED PRESSURE IN THE LIQUID BLEACH INDUSTRY WOULD NOT PROVOKE A
STRONG RESPONSE, SIMPLY BECAUSE FINANCIAL RESOURCES COULD NOT BE
DIVERTED TO THAT PURPOSE.   PROCTER, HOWEVER, WAS CONDUCTING HIGHLY
PROFITABLE OPERATIONS IN OTHER MARKETS AND HAD DEMONSTRATED ITS ABILITY
TO BRING LARGE RESOURCES TO BEAR IN INTENSIVE COMPETITIVE CAMPAIGNS BY
ITS SUCCESSFUL INTRODUCTION OF COMET CLEANSER AND VARIOUS TOOTHPASTES
ON A NATIONWIDE SCALE.  PROOF OF DEMONSTRATED ABILITY TO MOBILIZE AND
UTILIZE LARGE FINANCIAL RESOURCES SEEMS TO ME REQUIRED IF THE
INTRODUCTION OF SUCH RESOURCES INTO THE MARKET IS ALLEGED TO HAVE A
SUBSTANTIAL EFFECT.  (FN18)  SUCH PROOF EXISTS IN THIS RECORD. 

PROCTER'S ROLE AS A POTENTIAL ENTRANT WAS ALSO RELATED, BY THE
COMMISSION, TO THE "CONDITION OF ENTRY."  THE COMMISSION HAD "NO
OCCASION TO SPECULATE ON SUCH QUESTIONS AS WHETHER OR NOT PROCTER ...
WOULD IN FACT HAVE ENTERED THE BLEACH INDUSTRY ON ITS OWN  ...  ."  63
F.T.C., AT - .  IT MERELY NOTED THAT PROCTER'S GROWTH PATTERN,
FINANCIAL RESOURCES, EXPERIENCE IN THE FIELD AND MANAGEMENT POLICIES
MADE IT THE MOST FAVORABLY SITUATED POTENTIAL ENTRANT.  THUS THE
COMMISSION REASONED THAT PROCTER MIGHT HAVE BEEN INDUCED TO ENTER THE
LIQUID BLEACH MARKET WHEN THAT MARKET HAD A PREVAILING PRICE LEVEL
LOWER THAN THAT NECESSARY TO ATTRACT ENTRY BY MORE REMOTE COMPETITORS. 
THE LIMITATION POTENTIAL COMPETITION PLACES ON PRICING POLICIES DEPENDS
ON THE BARRIERS TO ENTRY FACING PARTICULAR COMPETITORS, AND INCREASED
INSULATION CAN STEM NOT ONLY FROM CHANGES WHICH MAKE IT MORE COSTLY FOR
ANY FIRM TO ENTER THE MARKET, BUT ALSO FROM LIMITATION OF THE CLASS OF
ENTRANTS TO THOSE WHOSE ENTRY COSTS ARE HIGH.  SEE BAIN, BARRIERS TO
NEW COMPETITION 21. 

AT FIRST BLUSH, A SERIOUS INCONSISTENCY SEEMS TO ARISE BETWEEN THE
COMMISSION'S ANALYSIS OF THIS POTENTIAL COMPETITION, AND ITS EXPRESSED
FEAR THAT THE MERGER MIGHT TURN THE FIELD INTO ONE OF BIG BUSINESS
COMPETITION BY INDUCING OTHER LARGE FIRMS TO SEEK ENTRY INTO THE
MARKET.  IF PROCTER'S ENTRY COULD BE SHOWN TO HAVE INCREASED RATHER
THAN DECREASED THE LIKELIHOOD OF ADDITIONAL ENTRY THEN IT COULD HARDLY
BE ATTACKED BECAUSE OF ADVERSE EFFECT ON THE "CONDITION OF ENTRY."  AND
I THINK IT IRRELEVANT WHETHER FURTHER ENTRY MIGHT BE BY SMALL OR LARGE
FIRMS.  ALTHOUGH THERE ARE THOSE WHO ATTACH A TALISMANIC SIGNIFICANCE
TO SMALL FIRM COMPETION, SEE UNITED STATES V. VON'S GROCERY CO., SUPRA,
AT 275, I DO NOT BELIEVE THAT COMPETITION BETWEEN DYNAMIC, WELL-MANAGED
LARGE COMPANIES IS LESS DESIRABLE THAN ANY OTHER FORM.  HOWEVER, THERE
IS NOTHING IN THE RECORD TO SHOW THAT THE COMMISSION'S DISCUSSION OF
THIS POINT WAS MORE THAN MERE SPECULATION, AND I CANNOT ATTACH ANY REAL
SIGNIFICANCE TO IT. 

THE COMMISSION'S ANALYSIS OF THE ECONOMIES INVOLVED IN THIS CASE IS
CRITICAL AND I REGRET THAT THE COURT REFRAINS FROM COMMENTING UPON IT.
THE COMMISSION - IN MY OPINION QUITE CORRECTLY - SEEMED TO ACCEPT THE
IDEA THAT ECONOMIES COULD BE USED TO DEFEND A MERGER, NOTING THAT "A
MERGER THAT RESULTS IN INCREASED EFFICIENCY OF PRODUCTION, DISTRIBUTION
OR MARKETING MAY, IN CERTAIN CASES, INCREASE THE VIGOR OF COMPETITION
IN THE RELEVANT MARKET."  63 F.T.C., AT - .  BUT ADVERTISING ECONOMIES
WERE PLACED IN A DIFFERENT CLASSIFICATION SINCE THEY WERE SAID "ONLY TO
INCREASE THE BARRIERS TO NEW ENTRY" AND TO BE "OFFENSIVE TO AT LEAST
THE SPIRIT, IF NOT THE LETTER, OF THE ANTITRUST LAWS."  IBID.
ADVERTISING WAS THOUGH TO BENEFIT ONLY THE SELLER BY ENTRENCHING HIS
MARKET POSITION, AND TO BE OF NO USE TO THE CONSUMER. 

I THINK THE COMMISSION'S VIEW OVERSTATED AND OVERSIMPLIFIED.  PROPER
ADVERTISING SERVES A LEGITIMATE AND IMPORTANT PURPOSE IN THE MARKET BY
EDUCATING THE CONSUMER AS TO AVAILABLE ALTERNATIVES.  THIS PROCESS
CONTRIBUTES TO CONSUMER DEMAND BEING DEVELOPED TO THE POINT AT WHICH
ECONOMIES OF SCALE CAN BE REALIZED IN PRODUCTION.  THE ADVERTISER'S
BRAND NAME MAY ALSO BE AN ASSURANCE OF QUALITY, AND THE VALUE OF THIS
BENEFIT IS DEMONSTRATED BY THE GENERAL WILLINGNESS OF CONSUMERS TO PAY
A PREMIUM FOR THE ADVERTISED BRANDS.  UNDENIABLY ADVERTISING MAY
SOMETIMES BE USED TO CREATE IRRATIONAL BRAND PREFERENCES AND MISLEAD
CONSUMERS AS TO THE ACTUAL DIFFERENCES BETWEEN PRODUCTS, (FN19) BUT IT
IS VERY DIFFICULT TO DISCOVER AT WHAT POINT ADVERTISING CEASES TO BE AN
ASPECT OF HEALTHY COMPETITION.  SEE BORK, CONTRASTS IN ANTITRUST
THEORY: I, 65 COL. L. REV. 401, 411, N. 11.  IT IS NOT THE COMMISSION'S
FUNCTION TO DECIDE WHICH LAWFUL ELEMENTS OF THE "PRODUCT" OFFERED THE
CONSUMER SHOULD BE CONSIDERED USEFUL AND WHICH SHOULD BE CONSIDERED THE
SYMPTOMS OF INDUSTRIAL "SICKNESS."  IT IS THE CONSUMER WHO MUST MAKE
THAT ELECTION THROUGH THE EXERCISE OF HIS PURCHASING POWER.  IN MY
VIEW, TRUE EFFICIENCIES IN THE USE OF ADVERTISING MUST BE CONSIDERED IN
ASSESSING ECONOMIES IN THE MARKETING PROCESS, WHICH AS HAS BEEN NOTED
ARE FACTORS IN THE SORT OF SEC 7 PROCEEDING INVOLVED HERE. 

I DO NOT THINK, HOWEVER, THAT ON THE RECORD PRESENTED PROCTER HAS
SHOWN ANY TRUE EFFICIENCIES IN ADVERTISING.  PROCTER HAS MERELY SHOWN
THAT IT IS ABLE TO COMMAND EQUIVALENT RESOURCES AT A LOWER DOLLAR COST
THAN OTHER BLEACH PRODUCERS.  NO PECULIARLY EFFICIENT MARKETING
TECHNIQUES HAVE BEEN DEMONSTRATED, NOR DOES THE RECORD SHOW THAT A
SMALLER NET ADVERTISING EXPENDITURE COULD BE EXPECTED.   ECONOMIES
CANNOT BE PREMISED SOLELY ON DOLLAR FIGURES, LEST ACCOUNTING
CONTROVERSIES DOMINATE SEC 7 PROCEEDINGS.  ECONOMIES EMPLOYED IN
DEFENSE OF A MERGER MUST BE SHOWN IN WHAT ECONOMISTS LABEL "REAL"
TERMS, THAT IS IN TERMS OF RESOURCES APPLIED TO THE ACCOMPLISHMENT OF
THE OBJECTIVE.  FOR THIS REASON, THE COMMISSION, I THINK, WAS JUSTIFIED
IN DISCOUNTING PROCTER'S EFFICIENCY DEFENSE. 

FOR THE REASONS SET FORTH IN THIS OPINION, I CONCLUDE THAT THE
COMMISSION WAS JUSTIFIED IN FINDING THAT THE PROCTER-CLOROX MERGER
ENTAILS THE REASONABLE PROBABILITY OF A SUBSTANTIAL INCREASE IN
BARRIERS TO ENTRY AND OF ENHANCEMENT IN PRICING POWER IN THE LIQUID
BLEACH INDUSTRY AND THAT ITS ORDER MUST BE UPHELD. 

FN1  IT HAS BEEN ARGUED THAT THE MERGERS BEFORE THIS COURT IN UNITED
STATES V. ALUMINUM CO. OF AMERICA, 377 U.S. 271, AND UNITED STATES V.
CONTINENTAL CAN CO., 378 U.S. 441, WERE ESSENTIALLY CONGLOMERATE.  BUT
THE MAJORITY IN BOTH CASES CHOSE TO TREAT THEM AS HORIZONTAL AND THUS
DID NOT REACH THE PROBLEM OF STANDARDS FOR JUDGING CONGLOMERATE
MERGERS.  SEE BRODLEY, OLIGOPOLY POWER UNDER THE SHERMAN AND CLAYTON
ACTS - FROM ECONOMIC THEORY TO LEGAL POLICY, 19 STAN.  L. REV. 285, 303
308. 

FN2  THUS THE PROCTER MEMORANDUM WHICH CONSIDERED THE QUESTION OF
ENTRY INTO THE LIQUID BLEACH MARKET STATED: "WE WOULD NOT RECOMMEND
THAT THE COMPANY CONSIDER TRYING TO ENTER THIS MARKET BY INTRODUCING A
NEW BRAND OR BY TRYING TO EXPAND A SECTIONAL BRAND.  THIS IS BECAUSE WE
FEEL IT WOULD REQUIRE A VERY HEAVY INVESTMENT TO ACHIEVE A MAJOR VOLUME
IN THE FIELD, AND WITH THE LOW 'AVAILABLE,' A REFERENCE TO PROFIT
MARGIN THE PAYOUT PERIOD WOULD BE VERY UNATTRACTIVE." 

FN3  THE NEED FOR ANALYSIS IS EVEN CLEARER IN LIGHT OF THE FACT THAT
ENTRY INTO THE MARKET BY PRODUCERS OF NONADVERTISED, LOCALLY
DISTRIBUTED BLEACHES WAS FOUND TO BE EASY.  THERE WERE NO TECHNOLOGICAL
BARRIERS TO ENTRY, AND THE CAPITAL REQUIREMENTS FOR ENTRY, WITH THE
EXCEPTION OF ADVERTISING COSTS, WERE SMALL.  THE COURT MUST AT LEAST
EXPLAIN WHY THE THREAT OF SUCH ENTRY AND THE PRESENCE OF SMALL
COMPETITORS IN EXISTING REGIONAL MARKETS CANNOT BE CONSIDERED THE
PREDOMINANT, AND UNAFFECTED, FORM OF COMPETITION.  TO ESTABLISH ITS
POINT, THE COURT MUST EITHER MINIMIZE THE IMPORTANCE OF SUCH
COMPETITION OR SHOW WHY IT WOULD BE SUBSTANTIALLY LESSENED BY THE
MERGER. 

FN4  BAIN'S PIONEERING STUDY OF BARRIERS TO ENTRY, BARRIERS TO NEW
COMPETITION, RECOGNIZED THAT SUCH BARRIERS COULD BE SURMOUNTED AT
DIFFERENT PRICE LEVELS BY DIFFERENT POTENTIAL ENTRANTS.  THUS EVEN
WITHOUT CHANGE IN THE NATURE OF THE BARRIERS THEMSELVES, THE MARKET
COULD BECOME MORE INSULATED THROUGH LOSS OF THE MOST LIKELY ENTRANT
SIMPLY BECAUSE THE PREVAILING MARKET PRICE WOULD HAVE TO RISE TO A
HIGHER LEVEL THAN BEFORE TO INDUCE ENTRY. 

FN5  FOR A DISCUSSION OF THE DIFFICULTY OF DETERMINING WHETHER ENTRY
BY A PARTICULAR COMPANY IS PROBABLE SEE BRODLEY, SUPRA, N. 1, AT 332. 

FN6  BUT SEE TURNER, CONGLOMERATE MERGERS AND SECTION 7 OF THE
CLAYTON ACT, 78 HARV. L. REV. 1313, 1340.  "THE BELIEF THAT PREDATORY
PRICING IS A LIKELY CONSEQUENCE OF CONGLOMERATE SIZE, AND HENCE OF
CONGLOMERATE MERGER, IS WHOLLY UNVERIFIED BY ANY CAREFUL STUDIES  ...
." 

FN7  BUT SEE COOK, MERGER LAW AND BIG BUSINESS: A LOOK AHEAD, 40
N.Y.U.L. REV. 710, 713.  "OF COURSE, THE CONGLOMERATE CASES ARE THE
BEST EXAMPLES OF THE EXOTIC RESTRAINTS.  HERE MERE SPECULATION ON WHAT
EITHER COMMON SENSE OR JUDICIOUSLY SELECTED ECONOMISTS MIGHT LEAD ONE
TO INFER IS APPARENTLY ENOUGH TO PREVENT A MERGER.  ONE READS THESE
OPINIONS WITH GROWING INCREDULITY.  THEY IMPLY THAT BIG BUSINESSES HAVE
SO MUCH STRENGTH AND SUCH DEEP POCKETS THAT THEY SIMPLY COULD NOT LOSE
OUT IN COMPETITION WITH SMALLER COMPANIES  ...  .  ONE DOES NOT NEED A
STATISTICAL SURVEY TO KNOW THAT THIS IS SIMPLY NOT THE WAY THE WORLD
IS." 

FN8  IN SO DOING THE COURT HAS MOVED AWAY FROM THE ORIGINAL
RECOMMENDATIONS IN THE REPORT OF THE ATTORNEY GENERAL'S NATIONAL
COMMITTEE TO STUDY THE ANTITRUST LAWS, WHICH CONCLUDED THAT "IT WILL
ALWAYS BE NECESSARY TO ANALYZE THE EFFECT OF THE MERGER ON RELEVANT
MARKETS IN SUFFICIENT DETAIL, GIVEN THE CIRCUMSTANCES OF EACH CASE, TO
PERMIT A REASONABLE CONCLUSION AS TO ITS PROBABLE ECONOMIC EFFECT." 
REPORT, AT 123.  BUT THE DEVELOPMENT OF SPECIFIC CRITERIA WAS AIDED BY
A DEGREE OF EXPERIENCE WHICH DOES NOT EXIST IN CONGLOMERATE CASES,
WHERE THE CAUTION TO ANALYZE IN DETAIL SEEMS PARTICULARLY SOUND. 

FN9  THE MERGER WAS CONSUMMATED AUGUST 1, 1957.  THE COMMISSION'S
COMPLAINT WAS FILED ON OCTOBER 7, 1957. 

FN10  CF. FTC V. CONSOLIDATED FOODS CORP., 380 U.S. 592, WHERE THIS
COURT HELD THAT EVEN AN EXTENSIVE POST-MERGER HISTORY, DEVELOPED
OUTSIDE THE INFLUENCE OF A SEC 7 CHALLENGE, WAS NOT TO BE CONSIDERED A
CONCLUSIVE NEGATION OF THE POSSIBILITY OF ANTICOMPETITIVE EFFECTS. 

FN11  THE AMENDMENTS TO THE BANK MERGER ACT (80 STAT. 7) REQUIRE A
MERGER TO BE CHALLENGED WITHIN 30 DAYS OF AGENCY APPROVAL.  THIS
NEGATES THE POSSIBILITY OF SUBSTANTIAL POST-MERGER EVIDENCE.  12 U.S.C.
SEC. 1828(C).  IT IS NOTEWORTHY THAT CONGRESS HAS REQUIRED RAPID
ADJUDICATION AND AT THE SAME TIME REQUIRED A DETERMINATION MORE COMPLEX
THAN THAT WHICH MUST BE MADE UNDER THE ANTITRUST LAWS.  IN A BANK
MERGER ACT CASE THE DEFENDANTS MAY SEEK TO HAVE THE MERGER UPHELD
BECUASE "THE ANTICOMPETITIVE EFFECTS  ...  ARE CLEARLY OUTWEIGHED IN
THE PUBLIC INTEREST BY THE PROBABLE EFFECT OF THE TRANSACTION IN
MEETING THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE SERVED."  12
U.S.C. SEC. 1828(C)(5)(B)(1964 ED., SUPP. II). 

FN12  THUS BAIN POINTS OUT THAT IN A COMPETITIVE MARKET WHERE MARKET
PRICE IS PRESUMED TO BE COST-BASED THE THREAT OF ENTRY SHOULD NOT
AFFECT MARKET PRICE BECAUSE EACH FIRM IS PRESUMED TO MAKE ITS PRICING
DECISIONS WITHOUT CONSIDERING THEIR IMPACT ON THE MARKET AS A WHOLE. 
EVEN IN AN OLIGOPOLISTIC MARKET IN WHICH EACH SELLER MUST ASSUME THAT
ITS PRICE ACTIONS WILL HAVE MARKETWIDE EFFECT, THE THREAT OF ENTRY
SERVES TO LIMIT MARKET PRICE ONLY WHEN THE OPTIMUM RETURN WOULD BE
OBTAINED AT A PRICE SUFFICIENT TO INDUCE ENTRY.  SO LONG AS THE OPTIMUM
PRICE IS BELOW THE ENTRY-TRIGGERING PRICE, THE THREAT OF ENTRY HAS NO
REAL IMPACT ON THE MARKET. 

FN13  THERE WAS EVIDENCE IN THE RECORD THAT THE LIQUID BLEACH MARKET
HAD THREE SEPARATE PRICE LEVELS, ONE FOR NATIONALLY ADVETISED BRANDS
(CLOROX AND PUREX), ANOTHER FOR REGIONAL BRANDS, AND A THIRD FOR LOCAL
BRANDS.  THERE WAS ALSO SOME TESTIMONY BY OFFICIALS OF THE COMPANIES
PRODUCING THE UNADVERTISED REGIONAL AND LOCAL BRANDS, WHICH SOLD AT A
LOWER PRICE THAN CLOROX AND PUREX, THAT THEIR PRICES WERE DETERMINED BY
THEIR COSTS.  SOME WITNESSES ALSO TESTIFIED THAT SALES OF UNADVERTISED
BRANDS WERE EXTREMELY PRICE ELASTIC, AND BAIN'S STUDY OF THE RELATED
SOAP INDUSTRY WOULD LEND SUPPORT TO THAT OBSERVATION.  BAIN, BARRIERS
TO NEW COMPETITION, APPENDIX D, AT 283.  THUS, AN ARGUMENT MIGHT HAVE
BEEN MADE THAT BECAUSE OF THIS PRICE CONSCIOUSNESS THE PRICES OF
ADVERTISED BRANDS COULD NOT GREATLY EXCEED THOSE OF REGIONAL AND LOCAL
BRANDS, AND THEREFORE COSTS SERVED AS THE ULTIMATE DETERMINANT OF
MARKET PRICE.  ON THE OTHER HAND, THERE IS TESTIMONY IN THE RECORD THAT
THE PRICING POLICY OF SOME UNADVERTISED PRODUCERS WAS TO FOLLOW THE
PRICE OF CLOROX AND MAINTAIN A DIFFERENTIAL SUFFICIENT TO PROVIDE
ADEQUATE SALES. 

FN14  POTENTIAL ENTRY DOES NOT KEEP "A LARGE NUMBER OF SMALL
COMPETITORS IN BUSINESS," UNITED STATES V. VON'S GROCERY CO., 384 U.S.
270, 275, EVEN IF THAT GOAL COULD BE CONSIDERED DESIRABLE.  IN FACT, BY
PLACING A CEILING ON MARKET PRICE IT MAY SERVE TO DRIVE OUT SMALL
COMPETITORS WHO MAY BE RELATIVELY INEFFICIENT PRODUCERS.  POTENTIAL
ENTRY DOES NOT CONTROL THE MARKET SHARE OF DOMINANT FIRMS OR PREVENT
THEM FROM EXPANDING THEIR POWER TO FORCE OTHERS TO ACCEDE TO THEIR
PRACTICES. 

FN15  I INTIMATE NO VIEW ON WHETHER ECONOMIES WOULD BE A DEFENSE IN A
SITUATION SUCH AS THAT PRESENTED IN EKCO PRODUCTS CO. V. F.T.C., 347
F.2D 745, WHERE THE EVIDENCE ESTABLISHED THAT THE COMPANY ENTERING THE
MARKET BY MERGER INTENDED TO ELIMINATE ALL COMPETITION, AND HAD, IN
FACT, PURCHASED A LEADING COMPETITOR AFTER ENTRY.    FN16  THIS
CONCLUSION IS SUPPORTED BY BAIN'S STUDY OF THE CLOSELY RELATED SOAP AND
DETERGENT MARKETS.  SEE N. 13, SUPRA. 

FN17  THIS IS THE "LESSON" OF THE INCIDENT IN ERIE, PENNSYLVANIA,
WHERE CLOROX WAS ABLE TO REPEL PUREX'S ASSAULT ON ITS MARKET POSITION. 
PUREX'S INITIAL SUCCESS SHOWED THAT PART OF THE MARKET COULD BE
CAPTURED, BUT PROCTER'S RESPONSE MADE CLEAR THAT THE BEACHHEAD COULD
NOT BE MAINTAINED WITHOUT CONTINUED HEAVY ADVERTISING EXPENSES.  UNLESS
THE PRICE COMMANDED WAS EXPECTED TO BE QUITE HIGH, THESE ADVERTISING
EXPENDITURES COULD NOT BE SUSTAINED.    FN18  THIS LIMITATION WAS
RECOGNIZED BY THE AUTHOR OF THE COMMISSION'S OPINION IN THIS CASE,
COMMISSIONER ELMAN, IN HIS DISSENTING OPINION IN NATIONAL TEA CO., 3
TRADE REG. REP. PARA 17,463, AT 22,708.  "THE ANSWER IN A SEC 7 CASE
CAN ONLY BE FOUND IN A CAREFUL AND DETAILED ANALYSIS OF THE NATURE AND
ECONOMIC CONDITION OF THE INDUSTRY, THE STRUCTURE OF THE RELEVANT
GEOGRAPHIC MARKETS, AND THE OVERALL MARKET POWER OF THE NATIONAL CHAIN
AND ITS CAPACITY TO BRING IT TO BEAR IN PARTICULAR LOCAL MARKETS." 

FN19  THE COMMISSION FOUND, FOR EXAMPLE, THAT CLOROX WAS IDENTICAL TO
OTHER LIQUID BLEACHES.  PROCTER CONTENDED, AND THE COURT OF APPEALS
CONCLUDED, THAT CLOROX EMPLOYED SUPERIOR QUALITY CONTROLS.  THE
EVIDENCE SEEMED TO INDICATE THAT THE REGIONAL AND NATIONAL BRANDS WERE
VERY SIMILAR, BUT THAT SOME LOCAL BRANDS VARIED IN STRENGTH. 
..END :





















SPECHT V. PATTERSON 386 U.S. 605 


NO. 831.  ARGUED MARCH 21, 1967.  - DECIDED APRIL 11, 1967.  - 357 F.2D
325, REVERSED. 


PETITIONER WAS CONVICTED OF THE CRIME OF INDECENT LIBERTIES UNDER A
COLORADO STATUTE WHICH PROVIDED A MAXIMUM SENTENCE OF 10 YEARS BUT HE
WAS SENTENCED UNDER THE SEX OFFENDERS ACT FOR AN INDETERMINATE TERM OF
FROM ONE DAY TO LIFE IMPRISONMENT.  THE ACT MAY BE APPLIED IF THE TRIAL
COURT BELIEVES THAT A PERSON CONVICTED OF SPECIFIED SEX OFFENSES "IF AT
LARGE, CONSTITUTES A THREAT OF BODILY HARM TO MEMBERS OF THE PUBLIC, OR
IS AN HABITUAL OFFENDER AND MENTALLY ILL." THE REQUISITE PROCEDURE, A
COMPLETE PSYCHIATRIC EXAMINATION AND A REPORT THEREOF GIVEN TO THE
TRIAL JUDGE BEFORE SENTENCING, WAS COMPLIED WITH IN PETITIONER'S CASE,
BUT NO HEARING WAS HELD.  THE STATE SUPREME COURT APPROVED THE
PROCEDURE, THE FEDERAL DISTRICT COURT DISMISSED A HABEAS CORPUS
PROCEEDING AND THE COURT OF APPEALS, AFFIRMED.  HELD:  THE INVOCATION
OF THE ACT, WHICH ENTAILS THE MAKING OF A NEW CHARGE LEADING TO
CRIMINAL PUNISHMENT, REQUIRES, UNDER THE DUE PROCESS CLAUSE, THAT
PETITIONER BE PRESENT WITH COUNSEL, HAVE AN OPPORTUNITY TO BE HEARD, BE
CONFRONTED WITH WITNESSES AGAINST HIM, HAVE THE RIGHT TO CROSS-EXAMINE
ANND TO OFFER EVIDENCE OF HIS OWN, AND THAT THERE BE FINDINGS ADEQUATE
TO MAKE MEANINGFUL ANY APPEAL THAT IS ALLOWED.  WILLIAMS V. NEW YORK,
337 U.S. 241, DISTINGUISHED.  PP. 608-611. 

SPECHT V. PATTERSON, WARDEN, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WE HELD IN WILLIAMS V. NEW YORK, 337 U.S. 241, THAT THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT REQUIRE A JUDGE TO HAVE
HEARINGS AND TO GIVE A CONVICTED PERSON AN OPPORTUNITY TO PARTICIPATE
IN THOSE HEARINGS WHEN HE CAME TO DETERMINE THE SENTENCE TO BE
IMPOSED.  WE SAID: 

"UNDER THE PRACTICE OF INDIVIDUALIZING PUNISHMENTS, INVESTIGATIONAL
TECHNIQUES HAVE BEEN GIVEN AN IMPORTANT ROLE.  PROBATION WORKERS MAKING
REPORTS OF THEIR INVESTIGATIONS HAVE NOT BEEN TRAINED TO PROSECUTE BUT
TO AID OFFENDERS.  THEIR REPORTS HAVE BEEN GIVEN A HIGH VALUE BY
CONSCIENTIOUS JUDGES WHO WANT TO SENTENCE PERSONS ON THE BEST AVAILABLE
INFORMATION RATHER THAN ON GUESSWORK AND INADEQUATE INFORMATION.  TO
DEPRIVE SENTENCING JUDGES OF THIS KIND OF INFORMATION WOULD UNDERMINE
MODERN PENOLOGICAL PROCEDURAL POLICIES THAT HAVE BEEN CAUTIOUSLY
ADOPTED THROUGHOUT THE NATION AFTER CAREFUL CONSIDERATION AND
EXPERIMENTATION.  WE MUST RECOGNIZE THAT MOST OF THE INFORMATION NOW
RELIED UPON BY JUDGES TO GUIDE THEM IN THE INTELLIGENT IMPOSITION OF
SENTENCES WOULD BE UNAVAILABLE IF INFORMATION WERE RESTRICTED TO THAT
GIVEN IN OPEN COURT BY WITNESSES SUBJECT TO CROSS-EXAMINATION.  AND THE
MODERN PROBATION REPORT DRAWS ON INFORMATION CONCERNING EVERY ASPECT OF
A DEFENDANT'S LIFE.  THE TYPE AND EXTENT OF THIS INFORMATION MAKE
TOTALLY IMPRACTICAL IF NOT IMPOSSIBLE OPEN COURT TESTIMONY WITH CROSS
EXAMINATION.  SUCH A PROCEDURE COULD ENDLESSLY DELAY CRIMINAL
ADMINISTRATION IN A RETRIAL OF COLLATERAL ISSUES."  ID., 249-250. 

THAT WAS A CASE WHERE AT THE END OF THE TRIAL AND IN THE SAME
PROCEEDING THE FIXING OF THE PENALTY FOR FIRST DEGREE MURDER WAS
INVOLVED - WHETHER LIFE IMPRISONMENT OR DEATH. 

THE QUESTION IS WHETHER THE RULE OF THE WILLIAMS CASE APPLIES TO THIS
COLORADO CASE WHERE PETITIONER, HAVING BEEN CONVICTED FOR INDECENT
LIBERTIES UNDER ONE COLORADO STATUTE THAT CARRIES A MAXIMUM SENTENCE OF
10 YEARS (COLO. REV. STAT. ANN. SEC. 40-2-32 (1963)) BUT NOT SENTENCED
UNDER IT, MAY BE SENTENCED UNDER THE SEX OFFENDERS ACT, COLO. REV.
STAT. ANN. SECS 39-19-1 TO 10 (1963), FOR AN INDETERMINATE TERM OF FROM
ONE DAY TO LIFE WITHOUT NOTICE AND FULL HEARING.  THE COLORADO SUPREME
COURT APPROVED THE PROCEDURE, WHEN IT WAS CHALLENGED BY HABEAS CORPUS
(153 COLO. 235, 385 P.2D 423) AND ON MOTION TO SET ASIDE THE JUDGMENT. 
156 COLO. 12, 396 P.2D 838.  THIS FEDERAL HABEAS CORPUS PROCEEDING
RESULTED, THE COURT OF APPEALS AFFIRMING DISMISSAL OF THE WRIT, 357
F.2D 325.  THE CASE IS HERE ON A PETITION FOR CERTIORARI, 385 U.S.
968. 

THE SEX OFFENDERS ACT MAY BE BROUGHT INTO PLAY IF THE TRIAL COURT "IS
OF THE OPINION THAT ANY  ...  PERSON CONVICTED OF SPECIFIED SEX
OFFENSES, IF AT LARGE, CONSTITUTES A THREAT OF BODILY HARM TO MEMBERS
OF THE PUBLIC, OR IS AN HABITUAL OFFENDER AND MENTALLY ILL."  SEC 1. 
HE THEN BECOMES PUNISHABLE FOR AN INDETERMINATE TERM OF FROM ONE DAY TO
LIFE ON THE FOLLOWING CONDITIONS AS SPECIFIED IN SEC 2: 

"(2)  A COMPLETE PSYCHIATRIC EXAMINATION SHALL HAVE BEEN MADE OF HIM
BY THE PSYCHIATRISTS OF THE COLORADO PSYCHOPATHIC HOSPITAL OR BY
PSYCHIATRISTS DESIGNATED BY THE DISTRICT COURT; AND 

"(3)  A COMPLETE WRITTEN REPORT THEREOF SUBMITTED TO THE DISTRICT
COURT.  SUCH REPORT SHALL CONTAIN ALL FACTS AND FINDINGS, TOGETHER WITH
RECOMMENDATIONS AS TO WHETHER OR NOT THE PERSON IS TREATABLE UNDER THE
PROVISIONS OF THIS ARTICLE; WHETHER OR NOT THE PERSON SHOULD BE
COMMITTED TO THE COLORADO STATE HOSPITAL OR TO THE STATE HOME AND
TRAINING SCHOOLS AS MENTALLY ILL OR MENTALLY DEFICIENT.  SUCH REPORT
SHALL ALSO CONTAIN THE PSYCHIATRIST'S OPINION AS TO WHETHER OR NOT THE
PERSON COULD BE ADEQUATELY SUPERVISED ON PROBATION." 

THIS PROCEDURE WAS FOLLOWED IN PETITIONER'S CASE; HE WAS EXAMINED AS
REQUIRED AND A PSYCHIATRIC REPORT PREPARED AND GIVEN TO THE TRIAL JUDGE
PRIOR TO THE SENTENCING.  BUT THERE WAS NO HEARING IN THE NORMAL SENSE,
NO RIGHT OF CONFRONTATION AND SO ON. 

PETITIONER INSISTS THAT THIS PROCEDURE DOES NOT SATISFY DUE PROCESS
BECAUSE IT ALLOWS THE CRITICAL FINDING TO BE MADE UNDER SEC 1 OF THE
SEX OFFENDERS ACT (1) WITHOUT A HEARING AT WHICH THE PERSON SO
CONVICTED MAY CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES AND PRESENT
EVIDENCE OF HIS OWN BY USE OF COMPULSORY PROCESS, IF NECESSARY; AND (2)
ON THE BASIS OF HEARSAY EVIDENCE TO WHICH THE PERSON INVOLVED IS NOT
ALLOWED ACCESS. 

WE ADHERE TO WILLIAMS V. NEW YORK, SUPRA; BUT WE DECLINE THE
INVITATION TO EXTEND IT TO THIS RADICALLY DIFFERENT SITUATION.  THESE
COMMITMENT PROCEEDINGS WHETHER DENOMINATED CIVIL OR CRIMINAL ARE
SUBJECT BOTH TO THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
AS WE HELD IN BAXSTROM V. HEROLD, 383 U.S. 107, AND TO THE DUE PROCESS
CLAUSE.  WE HOLD THAT THE REQUIREMENTS OF DUE PROCESS WERE NOT
SATISFIED HERE. 

THE SEX OFFENDERS ACT DOES NOT MAKE THE COMMISSION OF A SPECIFIED
CRIME THE BASIS FOR SENTENCING.  IT MAKES ONE CONVICTION THE BASIS FOR
COMMENCING ANOTHER PROCEEDING UNDER ANOTHER ACT TO DETERMINE WHETHER A
PERSON CONSTITUTES A THREAT OF BODILY HARM TO THE PUBLIC, OR IS AN
HABITUAL OFFENDER AND MENTALLY ILL.  THAT IS A NEW FINDING OF FACT
(VANDERHOOF V. PEOPLE, 152 COLO. 147, 149, 380 P.2D 903, 904) THAT WAS
NOT AN INGREDIENT OF THE OFFENSE CHARGED.  THE PUNISHMENT UNDER THE
SECOND ACT IS CRIMINAL PUNISHMENT EVEN THOUGH IT IS DESIGNED NOT SO
MUCH AS RETRIBUTION AS IT IS TO KEEP INDIVIDUALS FROM INFLICTING FUTURE
HARM.  (FN1)  UNITED STATES V. BROWN, 381 U.S. 437, 458. 

THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN SPEAKING OF A
COMPARABLE PENNSYLVANIA STATUTE  (FN2)  SAID: 

"IT IS A SEPARATE CRIMINAL PROCEEDING WHICH MAY BE INVOKED AFTER
CONVICTION OF ONE OF THE SPECIFIED CRIMES.  PETITIONER THEREFORE WAS
ENTITLED TO A FULL JUDICIAL HEARING BEFORE THE MAGNIFIED SENTENCE WAS
IMPOSED.  AT SUCH A HEARING THE REQUIREMENTS OF DUE PROCESS CANNOT BE
SATISFIED BY PARTIAL OR NIGGARDLY PROCEDURAL PROTECTIONS.  A DEFENDANT
IN SUCH A PROCEEDING IS ENTITLED TO THE FULL PANOPLY OF THE RELEVANT
PROTECTIONS WHICH DUE PROCESS GUARANTEES IN STATE CRIMINAL
PROCEEDINGS.   HE MUST BE AFFORDED ALL THOSE SAFEGUARDS WHICH ARE
FUNDAMENTAL RIGHTS AND ESSENTIAL TO A FAIR TRIAL, INCLUDING THE RIGHT
TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM."  GERCHMAN V.
MARONEY, 355 F.2D 302, 312. 

WE AGREE WITH THAT VIEW.  UNDER COLORADO'S CRIMINAL PROCEDURE, HERE
CHALLENGED, THE INVOCATION OF THE SEX OFFENDERS ACT MEANS THE MAKING OF
A NEW CHARGE LEADING TO CRIMINAL PUNISHMENT.  THE CASE IS NOT UNLIKE
THOSE UNDER RECIDIVIST STATUTES WHERE AN HABITUAL CRIMINAL ISSUE IS "A
DISTINCT ISSUE" (GRAHAM V. WEST VIRGINIA, 224 U.S. 616, 625) ON WHICH A
DEFENDANT "MUST RECEIVE REASONABLE NOTICE AND AN OPPORTUNITY TO BE
HEARD."  OYLER V. BOLES, 368 U.S. 448, 452; CHANDLER V. FRETAG, 348
U.S. 3, 8.  DUE PROCESS, IN OTHER WORDS, REQUIRES THAT HE BE PRESENT
WITH COUNSEL, HAVE AN OPPORTUNITY TO BE HEARD, BE CONFRONTED WITH
WITNESSES AGAINST HIM, HAVE THE RIGHT TO CROSS-EXAMINE, AND TO OFFER
EVIDENCE OF HIS OWN.  AND THERE MUST BE FINDINGS ADEQUATE TO MAKE
MEANINGFUL ANY APPEAL THAT IS ALLOWED.  THE CASE IS THEREFORE QUITE
UNLIKE THE MINNESOTA STATUTE  (FN3)  WE CONSIDERED IN MINNESOTA V.
PROBATE COURT, 309 U.S. 270, WHERE IN A PROCEEDING TO HAVE A PERSON
ADJUDGED A "PSYCHOPATHIC PERSONALITY" THERE WAS A HEARING WHERE HE WAS
REPRESENTED BY COUNSEL AND COULD COMPEL THE PRODUCTION OF WITNESSES ON
HIS BEHALF.  ID., AT 275.  NONE OF THESE PROCEDURAL SAFEGUARDS WE HAVE
MENTIONED IS PRESENT UNDER COLORADO'S SEX OFFENDERS ACT.  WE THEREFORE
HOLD THAT IT IS DEFICIENT IN DUE PROCESS AS MEASURED BY THE
REQUIREMENTS OF THE FOURTEENTH AMENDMENT.  POINTER V. TEXAS, 380 U.S.
400.  REVERSED. 

FN1  PROVISIONS FOR PROBATION ARE PROVIDED (COLO. REV. STAT. ANN.
SEC. 39-19-5-(3)(1963)); AND THE BOARD OF PAROLE HAS BROAD POWERS OVER
THE PERSON SENTENCED.  (COLO. REV. STAT. ANN. SECS 39-19-6 TO 10
(1963)). 

FN2  THE PENNSYLVANIA STATUTE (PA. STAT., TIT. 19, SECS 1166-1174
(1964)) PROVIDES THAT IF A COURT IS OF THE OPINION THAT A PERSON
CONVICTED BEFORE IT OF CERTAIN SEX OFFENSES "IF AT LARGE, CONSTITUTES A
THREAT OF BODILY HARM TO MEMBERS OF THE PUBLIC, OR IS AN HABITUAL
OFFENDER AND MENTALLY ILL," IT MAY, "IN LIEU OF THE SENTENCE NOW
PROVIDED BY LAW," SENTENCE THE PERSON TO A STATE INSTITUTION FOR AN
INDETERMINATE PERIOD, FROM ONE DAY TO LIFE.  PA. STAT., TIT. 19, SEC
1166 (1964).   THE SENTENCE IS IMPOSED ONLY AFTER THE DEFENDANT HAS
UNDERGONE A PSYCHIATRIC EXAMINATION AND THE COURT HAS RECEIVED A REPORT
CONTAINING ALL THE FACTS NECESSARY TO DETERMINE WHETHER IT SHALL IMPOSE
THE SENTENCE UNDER THE ACT.  PA. STAT., TIT. 19, SEC 1167 (1964).  IF
THE COURT, AFTER RECEIVING THE REPORT, "SHALL BE OF THE OPINION THAT IT
WOULD BE TO THE BEST INTERESTS OF JUSTICE TO SENTENCE SUCH PERSON UNDER
THE PROVISIONS OF THE ACT, HE SHALL CAUSE SUCH PERSON TO BE ARRAIGNED
BEFORE HIM AND SENTENCED TO" A STATE INSTITUTION DESIGNATED BY THE
DEPARTMENT OF WELFARE.  PA. STAT., TIT. 19, SEC 1170 (1964).  AFTER A
PERSON IS SENTENCED UNDER THE ACT, THE STATE BOARD OF PAROLE HAS
EXCLUSIVE CONTROL OVER HIM.  PA. STAT., TIT. 19, SEC 1173 (1964). 

FN3  THE MINNESOTA STATUTE (CHAPTER 369 OF THE LAWS OF MINNESOTA OF
1939) PROVIDED THAT THE LAWS RELATING TO PERSONS FOUND TO BE INSANE
WERE TO APPLY TO "PERSONS HAVING A PSYCHOPATHIC PERSONALITY."   IT
DEFINED THE TERM "PSYCHOPATHIC PERSONALITY" AS MEANING THE EXISTENCE IN
A PERSON OF CERTAIN CHARACTERISTICS WHICH RENDERED HIM "IRRESPONSIBLE
FOR HIS CONDUCT WITH RESPECT TO SEXUAL MATTERS, AND THEREBY DANGEROUS
TO OTHER PERSONS."  THE STATUTE WAS NOT CRIMINAL IN NATURE, AND WAS NOT
TRIGGERED BY A CRIMINAL CONVICTION.  A PERSON FOUND TO HAVE A
"PSYCHOPATHIC PERSONALITY" WOULD BE COMMITTED, JUST AS A PERSON FOUND
TO BE INSANE.  SEE MASON'S MINN. STAT. C. 74, SEC 8992-176 (1938
SUPP.). 

MR. JUSTICE HARLAN AGREES WITH THE CONCLUSIONS REACHED BY THE COURT,
BUT UPON THE PREMISES SET FORTH IN HIS OPINION CONCURRING IN THE RESULT
IN POINTER V. TEXAS, 380 U.S. 400, 408. 
..END :
























HONDA V. CLARK 386 U.S. 484 


NO. 164.  ARGUED FEBRUARY 14, 1967.  - DECIDED APRIL 10, 1967.  - 123
U.S. APP. D.C. 12, 356 F.2D 351, REVERSED AND REMANDED. 


THIS SUIT WAS BROUGHT BY 4,100 CITIZENS OR RESIDENTS OF THE UNITED
STATES WHO WERE DEPOSITORS, HOLDING "YEN CERTIFICATES," IN THE YOKOHAMA
SPECIE BANK (YSB).  IN 1943 THE ALIEN PROPERTY CUSTODIAN HAD VESTED AS
ENEMY PROPERTY THE ASSETS OF YSB LOCATED IN THE UNITED STATES.  IN 1946
CONGRESS PROVIDED IN SEC 34 OF THE TRADING WITH THE ENEMY ACT FOR THE
PAYMENT FROM THE VESTED ASSETS TO AMERICAN CITIZEN OR RESIDENT
CREDITORS OF PERSONS WHOSE PROPERTY WAS VESTED.  AFTER SOME 7,500 YEN
CERTIFICATE HOLDERS FILED CLAIMS FOR PAYMENT, THE ATTORNEY GENERAL
(SUCCESSOR TO THE CUSTODIAN) DETERMINED THAT THE DEBTS WERE PAYABLE IN
YEN AND THAT THE PROPER CONVERSION RATE WAS THE POSTWAR RATE OF 361.55
YEN TO THE DOLLAR, RATHER THAN THE PREWAR 4.3 RATE.  IN 1958 ALL YSB
CLAIMANTS WERE ADVISED OF THIS DECISION, WERE TOLD TO SUBMIT THEIR
ORIGINAL CERTIFICATES WITHIN 45 DAYS, WERE INFORMED THAT A FULL
SCHEDULE OF CLAIMANTS WOULD BE MADE PURSUANT TO SEC. 34(F) OF THE ACT,
AFTER WHICH AGGRIEVED CLAIMANTS COULD FILE SUIT IN THE DISTRICT COURT,
AND THAT THEY COULD AT ONCE REDEEM THEIR CERTIFICATES AT THE POSTWAR
RATE FROM YSB'S SUCCESSOR IN JAPAN.  PETITIONERS TOOK NO ACTION AND
THEIR CLAIMS WERE DISALLOWED AS ABANDONED.  IN 1961 A FINAL SCHEDULE
UNDER SEC. 34(F), WHICH DID NOT INCLUDE PETITIONERS' CLAIMS, WAS
PREPARED AND SENT TO ALL CLAIMANTS, INCLUDING PETITIONERS WHO WERE
ADVISED THAT UNDER SEC. 34(F) THEY COULD, IF AGGRIEVED, FILE SUIT IN
THE DISTRICT COURT WITHIN 60 DAYS OF THE MAILING OF THE SCHEDULE. 
WITHIN 60 DAYS A SUIT (ABE V. KENNEDY) WAS BROUGHT ON BEHALF OF THOSE
CLAIMANTS LISTED ON THE SCHEDULE TO CHALLENGE THE RATE OF EXCHANGE
RULING.  THIS SUIT WAS HELD IN ABEYANCE PENDING DETERMINATION OF THE
SAME ISSUE IN A SUIT INVOLVING YEN CERTIFICATES OF ANOTHER BANK.  THE
LOWER COURTS UPHELD THE POSTWAR RATE IN THE LATTER CASE (ARATANI V.
KENNEDY) AND AFTER THIS COURT GRANTED CERTIORARI THE ATTORNEY GENERAL
ENTERED INTO A COMPROMISE SETTLEMENT IN BOTH CASES, IN ABE AT
APPROXIMATELY THE PREWAR RATE WITHOUT INTEREST.  UPON THE FINAL
DISPOSITION OF THE ABE CASE, AND BEFORE THE DISMISSAL OF CERTIORARI IN
ARATANI, PETITIONERS FILED THIS SUIT, ASKING FOR SIMILAR TREATMENT. 
THE ATTORNEY GENERAL DENIED THEIR CLAIMS BECAUSE THEY WERE NOT INCLUDED
IN THE CLASS REPRESENTED IN THE ABE SUIT AND THEY HAD NOT BROUGHT SUIT
WITHIN THE 60-DAY PERIOD.  HELD:  SINCE THE STATUTORY SCHEME OF SEC 34,
WHICH WAS MODELED ON THE BANKRUPTCY ACT, WAS INTENDED TO PROVIDE A FAIR
AND EQUITABLE DISTRIBUTION OF VESTED ENEMY ASSETS TO AMERICAN RESIDENTS
OR CITIZENS, THE LIMITATIONS PERIOD WAS TOLLED DURING THE PENDENCY OF
THE ABE LITIGATION AND PETITIONERS' RIGHT TO BRING THEIR SUIT WAS NOT
FORECLOSED.  PP. 494-502. 

(A)  THE BANKRUPTCY ACT PRESENTS A COMPELLING ANALOGY IN SEC 57N
WHICH PROVIDES THAT "CLAIMS NOT FILED WITHIN THE TIME HEREINABOVE
PRESCRIBED MAY NEVERTHELESS BE FILED WITHIN SUCH TIME AS THE COURT MAY
FIX OR FOR CAUSE SHOWN EXTEND, AND, IF DULY PROVED, SHALL BE ALLOWED
AGAINST ANY SURPLUS REMAINING IN SUCH CASE."  SEE ALSO NASSAU WORKS V.
BRIGHTWOOD CO., 265 U.S. 269.  PP. 496-498. 

(B)  THE 60-DAY LIMITATION SERVES ONLY AS A MEANS OF EXPEDITING THE
DISTRIBUTION OF VESTED ASSETS TO CREDITORS, AND HERE THERE ARE NO OTHER
CREDITORS, A SURPLUS REMAINS IN THE FUND, AND THE ATTORNEY GENERAL IS A
MERE STAKEHOLDER.  P. 498. 

(C)  SINCE PETITIONERS FILED THEIR SUIT IMMEDIATELY UPON SETTLEMENT
OF THE ABE CASE, THEY DID NOT INTERFERE WITH THE SPEED OR MANNER IN
WHICH THIS LITIGATION WAS CONDUCTED.  PP. 499-500. 

(D)  IN THIS CASE, WHERE THE PUBLIC TREASURY IS NOT DIRECTLY
AFFECTED, IT IS CONSISTENT WITH THE OVERALL CONGRESSIONAL PURPOSE TO
APPLY A TRADITIONAL EQUITABLE TOLLING PRINCIPLE, APTLY SUITED TO THE
FACTS OF THIS CASE AND NOWHERE ESCHEWED BY CONGRESS, TO PRESERVE
PETITIONERS' CAUSE OF ACTION.  PP. 500-502. 

HONDA ET AL. V. CLARK, ATTORNEY GENERAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE 4,100 UNITED STATES CITIZENS OR RESIDENTS OF JAPANESE
DESCENT SEEKING TO RECOVER FUNDS VESTED UNDER THE TRADING WITH THE
ENEMY ACT, 40 STAT. 411, 50 U.S.C.  APP. SEC 1 ET SEQ. THE DISTRICT
COURT DISMISSED THEIR SUIT AGAINST THE ATTORNEY GENERAL  (FN1)  AS
BARRED BY LIMITATIONS, AND THE COURT OF APPEALS AFFIRMED BY A DIVIDED
VOTE.  123 U.S. APP. D.C. 12, 356 F.2D 351.  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE AND UNUSUAL CHARACTER OF THE QUESTIONS
INVOLVED, AFFECTING THE PROPER APPLICATION OF THIS WARTIME STATUTE. 
385 U.S. 917 

BOTH AS THE CASE WAS TREATED BY THE LOWER COURTS AND AS IT WAS
LARGELY ARGUED HERE, THE LIMITATIONS ISSUE HAS BEEN THOUGHT TO TURN ON
WHETHER THE GOVERNMENT IS ESTOPPED FROM ASSERTING THE 60-DAY TIME BAR
PROVIDED FOR ACTIONS OF THIS KIND BY SEC. 34(F) OF THE TRADING WITH THE
ENEMY ACT.  WE CONCLUDE, HOWEVER, THAT "ESTOPPEL" IS NOT THE
CONTROLLING ISSUE, BUT THAT FOR REASONS DISCUSSED IN THIS OPINION THE
PERIOD OF LIMITATIONS WAS TOLLED, REQUIRING REVERSAL OF THE JUDGMENT
BELOW. 

                     I. 

UPON THE OUTBREAK OF HOSTILITIES WITH JAPAN, THE UNITED STATES, ON
DECEMBER 7, 1941, ACTING UNDER THE TRADING WITH THE ENEMY ACT, SEIZED
THE AMERICAN ASSETS OF BUSINESSES OWNED BY JAPANESE NATIONALS, AMONG
SUCH PROPERTY BEING THE ASSETS OF THE YOKOHAMA SPECIE BANK, LTD.  THE
ASSETS OF THE BANK WERE LIQUIDATED, AND IN 1943 WERE VESTED IN THE
ALIEN PROPERTY CUSTODIAN; SEE PARAMOUNT PICTURES, INC. V. SPARLING, 93
CAL. APP. 2D 768, 770-771, 209 P.2D 968, 969-970.  PETITIONERS WERE
AMONG THE APPROXIMATELY 7,500 DEPOSITORS OF THE BANK HOLDING "YEN
CERTIFICATES,"  (FN2)  WHO SUBMITTED TIMELY CLAIMS, MANY BEING FILED AS
EARLY AS 1946, UNDER SEC. 34 OF THE ACT SEEKING RECOVERY OF THEIR
DEPOSITS. 

TO THIS COURT'S DECISION IN MARKHAM V. CABELL, 326 U.S. 404, WHICH
ALLOWED NONENEMY CREDITORS OF FORMER OWNERS OF VESTED PROPERTY TO BRING
SUIT UNDER A WORLD WAR I STATUTE,  (FN3)  AND RECOVER DIRECTLY OUT OF
VESTED ASSETS.  THE ALIEN PROPERTY CUSTODIAN FEARED THAT ALLOWANCE OF
SUCH SUITS MIGHT LEAD TO INEQUITABLE RESULTS, IN THAT CREDITORS WHO
BROUGHT SUIT IMMEDIATELY MIGHT EXHAUST THE ASSETS AT THE EXPENSE OF
OTHER, EQUALLY VALID, CLAIMS.  THE CUSTODIAN URGED, AND THE CONGRESS
AGREED, THAT AN APPROACH ON THE LINES OF THE BANKRUPTCY ACT WAS A
FAIRER METHOD OF DISTRIBUTING SUCH ASSETS.  (FN4)  SEE H.R. REP. NO.
2398, 79TH CONG., 2D SESS., 10, 14 (1946); S. REP. NO. 1839, 79TH
CONG., 2D SESS., 4, 8 (1946).  AS IN BANKRUPTCY LAW, THE NEW ACT
REQUIRED THE FILING OF A DEBT CLAIM WITH THE CUSTODIAN WITHIN A
SPECIFIED PERIOD, SEC. 34(B). 

APPROXIMATELY 7,500 YEN CERTIFICATE HOLDERS, INCLUDING PETITIONERS,
IMMEDIATELY COMPLIED WITH THIS PROVISION AND SUBMITTED PHOTOSTATIC
COPIES OF THEIR RESPECTIVE CERTIFICATES.  IN THE COURSE OF PROCESSING
THE CLAIMS PURSUANT TO SEC. 34(F) A QUESTION AROSE AS TO THE REDEMPTION
VALUE OF THE CERTIFICATES BOTH FOR DEPOSITORS OF THE YOKOHAMA SPECIE
BANK AND FOR THOSE OF ANOTHER BANK, THE SUMITOMO BANK, HOLDING SIMILAR
CERTIFICATES.  AN ADMINISTRATIVE DETERMINATION WAS SOUGHT IN A
PROCEEDING BROUGHT IN THE NAME OF ONE OF THE YOKOHAMA BANK DEPOSITORS
KUNIO ABE, CLAIM NO. 55507.  ABE, ACTING FOR ALL YEN CERTIFICATE
HOLDERS, TOOK THE VIEW THAT SINCE THESE DEPOSITS HAD BEEN MADE IN
AMERICAN DOLLARS, AND THE CERTIFICATES WERE ALLEGEDLY REDEEMABLE IN
DOLLARS AT ANY TIME UPON DEMAND AT AMERICAN BRANCHES OF THE BANK, THEY
SHOULD BE TREATED AS DOLLAR DEBTS AT THE AMOUNT OF THEIR VALUE WHEN
SEIZED IN 1941, AT A RATE OF ABOUT 4.3 YEN TO THE DOLLAR.  THE ATTORNEY
GENERAL, (FN5)  HOWEVER, CHARACTERIZED THE DEBTS AS YEN DEBTS, AND
FOLLOWING THE RULE OF DEUTSCHE BANK V. HUMPHREY, 272 U.S. 517, AND
ZIMMERMANN V. SUTHERLAND, 274 U.S. 253, HELD THAT THE PROPER MEASURE OF
RECOVERY WOULD BE AT THE POSTWAR CONVERSION RATE OF 361.55 YEN TO THE
DOLLAR, OR LESS THAN 2% OF THE PREWAR RATE.  IT IS NOTEWORTHY THAT
THROUGHOUT THIS PERIOD THE YOKOHAMA BANK'S SUCCESSOR IN JAPAN, THE BANK
OF TOKYO, LTD., WAS WILLING TO REDEEM THESE CERTIFICATES AT THE POSTWAR
RATE.  PETITIONERS, AT ANY TIME, COULD THEREFORE HAVE RECEIVED FROM THE
JAPANESE BANK THE AMOUNT THE GOVERNMENT ASSERTED WOULD EVENTUALLY BE
OBTAINED FROM THE VESTED ASSETS. 

AT THE CONCLUSION OF THE ADMINISTRATIVE PROCESS, IN 1958-1959, THE
CHIEF OF THE CLAIMS SECTION WROTE TO EACH OF THE DEPOSITORS WHO HAD
FILED A CLAIM, INCLUDING PETITIONERS, ADVISING THAT "THE DIRECTOR OF
THIS OFFICE DECIDED ON NOVEMBER 13, 1957, IN THE MATTER OF KUNIO ABE,
ET AL., CLAIM NO. 55507, DOCKET NO. 55D72, WHICH DECISION THE ATTORNEY
GENERAL HAS DECLINED TO REVIEW, THAT YEN CERTIFICATES OF DEPOSIT ISSUED
BY THE YOKOHAMA SPECIE BANK, LTD.  ...  ARE OBLIGATIONS PAYABLE IN YEN
IN JAPAN  ...  ,"  AND THEREFORE THAT THE POSTWAR RATE OF 361.55 YEN TO
THE DOLLAR WOULD BE USED IN REDEEMING CERTIFICATES FROM THE VESTED
ASSETS.  CLAIMANTS WERE TOLD TO SUBMIT THEIR ORIGINAL CERTIFICATES
WITHIN 45 DAYS.  HOWEVER, THE LETTER CONTINUED, "PAYMENT OF YOUR CLAIM
...  WILL NOT BE MADE IMMEDIATELY."  THE LETTER INFORMED THE CLAIMANT
THAT A FULL SCHEDULE OF CLAIMANTS WOULD BE MADE, SEC. 34(F), AND THAT
AFTER ITS ISSUANCE AGGRIEVED CERTIFICATE HOLDERS MIGHT FILE SUIT IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR JUDICIAL
REVIEW.  "UNDER THE CIRCUMSTANCES," THE LETTER CONTINUED, "YOU MAY WISH
TO UTILIZE THE FUNDS IN JAPAN RATHER THAN AWAIT SETTLEMENT BY THIS
OFFICE.  IF THIS WAS DONE, THE NOTICE OF CLAIM FILED WITH THIS OFFICE
SHOULD BE CANCELED BY SIGNING AND MAILING THE ENCLOSED NOTICE OF
CANCELLATION OF CLAIM CARD." 

PETITIONERS CHARACTERIZE THIS LETTER AS "CONFUSING" AND "INSULTING." 
WE THINK THE OPPROBRIUM WHICH IS SOUGHT TO BE FASTENED ON THE LETTER IS
UNDESERVED AND CONSIDER IT MORE ACCURATE AND FAIRER TO SAY THAT
ALTHOUGH ITS INSTRUCTIONS WERE COMPLEX, THE LETTER WAS WRITTEN IN A
MANNER DESIGNED REASONABLY TO APPRISE A LAYMAN OF THE CHOICES BEFORE
HIM.  HOWEVER, ON THE PARTICULAR FACTS OF THIS CASE AND GIVEN THE
EMPIRICAL EVIDENCE AVAILABLE, IT IS QUITE UNDERSTANDABLE THAT THE 7,500
INITIAL CLAIMANTS, ONLY 1,817 RESPONDED AFFIRMATIVELY BY SENDING IN
THEIR CERTIFICATES, AND LESS THAN 1,600 CANCELED THEIR CLAIMS AND
SOUGHT IMMEDIATE RECOVERY IN JAPAN.  THE REMAINDER, A MAJORITY OF ALL
WHO HAD CLAIMS, PETITIONERS IN THIS CASE, DID NOTHING. 

THE REASONS FOR THEIR INACTION ARE QUITE APPARENT, AND, IT CAN
REASONABLY BE ARGUED, SHOULD HAVE BEEN SO TO THE GOVERNMENT:  THE
LETTER INDICATED THAT DESPITE AS LONG AS 12 YEARS OF WAITING AFTER THE
ORIGINAL SUBMISSION OF THEIR CLAIMS, SUPPORTED BY COPIES OF THEIR
CERTIFICATES, THEY COULD EXPECT TO RECEIVE LESS THAN 2% OF THEIR BASIC
DEPOSITS MEASURED IN PREWAR DOLLAR TERMS, AND THAT EVEN THIS AMOUNT
WOULD NOT BE FORTHCOMING IMMEDIATELY, BUT ONLY AFTER ISSUANCE OF A
SCHEDULE (AN ADDITIONAL INTERVAL, IT TURNED OUT, OF THREE YEARS) PLUS
POSSIBLE JUDICIAL REVIEW.  CLAIMANTS WOULD CLEARLY BE BETTER OFF
GETTING REPAYMENT IMMEDIATELY FROM THE JAPANESE BANK ITSELF.  THIS
RECOURSE, SUGGESTED BY THE LETTER ITSELF, WAS AT THE SAME TIME
UNDERSTANDABLY ADVANTAGEOUS TO THE GOVERNMENT AS WELL:  AMERICAN
CITIZENS OR RESIDENTS WOULD OBTAIN RELIEF, BUT FROM A FOREIGN SOURCE,
THUS FREEING MORE OF THE VESTED ASSETS FOR DISTRIBUTION TO REMAINING
CLAIMANTS.  IT IS THUS UNDERSTANDABLE THAT THE GOVERNMENT DID NOTHING
TO ASCERTAIN WHY A MAJORITY OF THE 7,500 CLAIMANTS HAD RESPONDED IN NO
WAY TO ITS LETTER. 

IN AFFIDAVITS SUBMITTED TO THE DISTRICT COURT, AND NOT CONTRADICTED
ON THE MOTION TO DISMISS THE COMPLAINT, VARIOUS OTHER REASONS WERE
ASSERTED FOR THE FAILURE OF THESE PETITIONERS TO RESPOND.  PETITIONER
JIRO KAI ASSERTED: 

"I DID RECEIVE A LETTER FROM THE OFFICE OF ALIEN PROPERTY OFFERING ME
ABOUT 30 CENTS FOR MY CLAIM.   I THINK I RECALL BEING ASKED TO SEND IN
MY ORIGINAL CERTIFICATE BY REGISTERED MAIL TO RECEIVE THIS AMOUNT.  FOR
ME TO HAVE DONE THIS WOULD HAVE COST MORE THAN I WAS BEING OFFERED. 
(FN6)  I HAD HEARD FROM OTHERS THAT MANY MORE PERSONS HAD CLAIMS
SIMILAR TO MINE AND I UNDERSTOOD THAT THEY WERE ALL BEING PROCESSED
TOGETHER.  I SAW IN THE JAPANESE NEWSPAPER THAT A COURT SUIT WAS OR
WOULD BE FILED SEEKING TO OBTAIN FOR THE YEN CLAIMANTS THE PROPER
AMOUNT FOR THEIR CLAIMS.  I BELIEVED, THEREFORE, I WOULD BE
PROTECTED." 

OTHER AFFIDAVITS GAVE SIMILAR REASONS.  THESE ARE SUMMARIZED BEST IN
A AFFIDAVIT OF MR. KATSUMA MUKAEDA, PRESIDENT OF THE JAPANESE CHAMBER
OF COMMERCE OF SOUTHERN CALIFORNIA: 

"MANY OF THE YOKOHAMA SPECIE BANK YEN DEPOSIT CERTIFICATE HOLDERS
WERE OLD PEOPLE WHO COULD NOT READ ENGLISH AND COULD NOT UNDERSTAND THE
COMMUNICATIONS THEY RECEIVED FROM THE OFFICE OF ALIEN PROPERTY; MANY OF
THEM HAD TO RELY UPON OTHER PERSONS WHO THEMSELVES WERE NOT ABLE TO
UNDERSTAND THE LETTERS; MOST OF THE CLAIMANTS HAD NEVER TALKED TO A
LAWYER ABOUT THEIR CASES AND THERE WAS A GENERAL FEELING IN THE
COMMUNITY THAT ALL OF THE CLAIMS WERE GOING TO BE TREATED ALIKE, BOTH
THE SUMITOMO BANK CLAIMANTS AND THE YOKOHAMA SPECIE BANK CLAIMANTS;
THERE WAS KNOWLEDGE IN THE COMMUNITY THAT A LAW SUIT HAD BEEN FILED IN
WASHINGTON AND IT WAS UNDERSTOOD AND BELIEVED THAT THE OUTCOME OF THAT
LAW SUIT WOULD DETERMINE HOW MUCH MONEY THE CLAIMANTS RECEIVED AND THAT
IT WOULD APPLY TO ALL CLAIMANTS NOT JUST SOME; MOST OF THE CLAIMANTS
HAD HAD EXPERIENCE WITH OR HAD HEARD ABOUT THE JAPANESE EVACUATION
CLAIMS PROGRAM (50 U.S.C. APPX.  1981 - 1987)  (FN7)  AND MANY OF THEM
KNEW GENERALLY THAT UNDER THAT PROGRAM, DEADLINES HAD BEEN EXTENDED AND
EVEN THAT THE LAW ITSELF HAD BEEN CHANGED TO INCLUDE PERSONS WHO
ORGINALLY WERE NOT ELIGIBLE, TO BE ELIGIBLE FOR REPAYMENT OF SOME OF
THEIR LOSSES DUE TO THE JAPANESE EVACUATION PROGRAM, AND THAT PERSONS
WHO PREVIOUSLY HAD BEEN DENIED PAYMENT, LATER WERE PAID; ...  SINCE THE
ORIGINAL CERTIFICATES OF DEPOSIT WERE THE CLAIMANTS' ONLY DIRECT
EVIDENCE OF THEIR CLAIM, MANY OF THE CLAIMANTS WERE RELUCTANT TO PART
WITH THIS EVIDENCE, ESPECIALLY AT A TIME WHEN THE GOVERNMENT WAS
RECOGNIZING THEIR CLAIMS AT LESS THAN 2% OF THEIR FACE VALUE, TO SAY
NOTHING OF ACCUMULATED INTEREST OVER THE YEARS; MOREOVER, MANY OF THEM
FELT THAT TO SEND IN THEIR CERTIFICATES AT THAT TIME WOULD BE TAKEN AS
AGREEING TO ACCEPT THIS VERY SMALL SUM IN FULL SETTLEMENT AND THEY DID
NOT WANT TO DO THAT; THERE WERE OTHERS WHOSE CLAIMS WERE SO SMALL THAT
TO SEND IN THE ORIGINALS AT THE FIGURE THE GOVERNMENT WAS OFFERING
WOULD NET THEM NO RETURN OR A VERY SMALL AMOUNT; AS INDIVIDUALS, EVEN
THOSE CLAIMANTS WHO DID NOT HAVE VERY SMALL CLAIMS COULD NOT AFFORD TO
HIRE AN INDIVIDUAL LAWYER IN WASHINGTON OR TO FILE THEIR OWN SUIT BUT
HAD TO RELY ON WHAT WAS BEING DONE GENERALLY AND MANY OF THEM BELIEVED
THAT IN THE END THEIR GOVERNMENT WOULD NOT TRY TO KEEP THEIR MONEY BUT
WOULD RETURN IT." 

THE CLAIMS OF THESE 4,100 CLAIMANTS WERE DISMISSED WHEN THEY DID NOT
RESPOND WITH THE 45-DAY ADMINISTRATIVE LIMIT, PURSUANT TO 8 CFR SEC.
502.25(G), 21 FED. REG.  1582.  (FN8)  PETITIONERS WERE NOTIFIED THAT
THEIR CLAIMS WERE DISALLOWED AS ABANDONED, AND TOLD THAT FURTHER
PROCEEDINGS WERE GOVERNED BY SEC. 34(F), THE PROVISION REQUIRING A
FINAL SCHEDULE OF CLAIMANTS AND PROVIDING FOR JUDICIAL REVIEW.  IN MAY
1961, A FINAL SCHEDULE WAS PREPARED AND SENT TO ALL CLAIMANTS,
INCLUDING PETITIONERS.  PETITIONERS' CLAIMS WERE NOT INCLUDED IN THE
SCHEDULE, BUT THEY WERE INFORMED THAT "PURSUANT TO SECTION 34(F) OF THE
TRADING WITH THE ENEMY ACT, AS AMENDED, ANY CLAIMANT CONSIDERING
HIMSELF AGGRIEVED BY THIS FINAL SCHEDULE MAY, WITHIN SIXTY (60) DAYS
FROM THE DATE OF THE MAILING OF THE SCHEDULE, FILE IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA A COMPLAINT FOR REVIEW OF
THIS SCHEDULE  ...  ." 

SUCH A SUIT WAS BROUGHT TO CHALLENGE THE PROPER RATE OF EXCHANGE.  IT
WAS BROUGHT BY MR. KUNIO ABE, THE SAME PERSON WHO HAD CHALLENGED THE
ADMINISTRATIVE RULING AND WHOSE CASE WAS CITED BY THE GOVERNMENT IN ITS
LETTERS TO PETITIONERS AS DISPOSITIVE OF THEIR CASES.  ABE V. KENNEDY,
C.A. NO. 2529-61, D.D.C., WAS HELD IN ABEYANCE IN THE DISTRICT COURT
PENDING A DETERMINATION OF THE IDENTICAL ISSUE RAISED IN RELATION TO
YEN CERTIFICATES ISSUED BY THE SUMITOMO BANK.  THE DISTRICT COURT
UPHELD THE ATTORNEY GENERAL'S DETERMINATION, AND THE COURT OF APPEALS
AFFIRMED, ARATANI V. KENNEDY, 115 U.S. APP. D.C. 97, 317 F.2D 161, 323
F.2D 427.  AFTER THIS COURT GRANTED CERTIORARI IN ARATANI, 375 U.S.
877, THE ATTORNEY GENERAL ENTERED INTO A COMPROMISE SETTLEMENT WITH THE
PLAINTIFFS IN ARATANI AND ABE, IN THE LATTER CASE APPROXIMATELY AT THE
PREWAR RATE WITHOUT INTEREST.  (FN9)  PETITIONERS HERE WERE NOT
INCLUDED IN THE CLASS REPRESENTED BY ABE, FOR HIS COMPLAINT WAS FRAMED
TO REPRESENT ONLY THE CLASS OF THOSE CLAIMANTS LISTED IN THE SCHEDULE
RATHER THAN ALL OUTSTANDING CLAIMANTS.  PETITIONERS THEREFORE FILED
THIS SUIT UPON FINAL DISPOSITION OF THE ABE LITIGATION, AND LONG BEFORE
THE DISMISSAL OF CERTIORARI IN ARATANI, ASKING FOR SIMILAR TREATMENT. 
(FN10)  THE ATTORNEY GENERAL DENIED THEIR CLAIMS BECAUSE PETITIONERS
WERE NOT INCLUDED IN THE CLASS REPRESENTED IN THE ABE SUIT, AND BECAUSE
THEY HAD NOT FILED THEIR SUIT WITHIN 60 DAYS AFTER MAILING OF THE
SCHEDULE AS REQUIRED BY SEC. 34(F). 
   II. 

QUITE APART FROM ANY QUESTION OF GOVERNMENTAL ESTOPPEL RESPECTING
ASSERTION OF THE STATUTE OF LIMITATIONS, A CONTENTION THAT IS SOUGHT TO
BE PREDICATED ON THE FOREGOING TRAIN OF EVENTS AND CIRCUMSTANCES, WE
CONSIDER THAT THE LIMITATIONS PERIOD WAS IN ANY EVENT TOLLED DURING THE
PENDENCY OF THE ABE LITIGATION, AND THAT PETITIONERS' RIGHT TO BRING
THEIR SUIT WAS NOT FORECLOSED.  AN ANALYSIS OF THE STATUTORY SCHEME AS
DEVISED BY CONGRESS PERSUADES US, IN THE CONTEXT OF THIS FACTUAL
SETTING, THAT THIS IS THE RESULT MOST CONSISTENT WITH THE LEGISLATIVE
PURPOSE OF THIS ACT. 

THE STATUTORY SYSTEM EMBODIED IN SEC 34 WAS INTENDED TO PROVIDE A
METHOD FOR THE FAIR AND EQUITABLE DISTRIBUTION OF VESTED ENEMY ASSETS
TO AMERICAN RESIDENTS.  THE BASIC MODEL FOR THE STATUTE WAS THE FEDERAL
BANKRUPTCY ACT, A CONCEPT REVEALED IN THE LEGISLATIVE RECORD BY
EXPRESSIONS OF THE CUSTODIAN AND OF THOSE MEMBERS OF CONGRESS
PRINCIPALLY RESPONSIBLE FOR THE LEGISLATION.  (FN11)  THE 60-DAY
LIMITATION ON SUITS WAS DESIGNED TO FURTHER THIS END - TO AID CLAIMANTS
BY EXPEDITING A FINAL DISTRIBUTION - AND NOT PRIMARILY AS A SHIELD FOR
THE GOVERNMENT. 

THE BANKRUPTCY ACT, THE PATTERN FOR THIS LEGISLATION, PRESENTS A
COMPELLING ANALOGY, POINTING THE WAY TO THE DECISION WHICH WE MAKE IN
THIS CASE.  SECTION 57N, 11 U.S.C.  SEC. 93(N), REQUIRES NOTIFICATION
OF CLAIMS WITHIN SIX MONTHS AFTER THE FIRST DATE SET FOR THE FIRST
MEETING OF CREDITORS.  THOSE WHO FAIL TO FILE TIMELY CLAIMS DO NOT,
HOWEVER, LOSE ALL THEIR RIGHTS; RATHER AFTER ALL DULY ALLOWED AND
PROPERLY FILED CLAIMS HAVE BEEN PAID IN FULL, "CLAIMS NOT FILED WITHIN
THE TIME HEREINABOVE PRESCRIBED MAY NEVERTHELESS BE FILED WITHIN SUCH
TIME AS THE COURT MAY FIX OR FOR CAUSE SHOWN EXTEND AND, IF DULY
PROVED, SHALL BE ALLOWED AGAINST ANY SURPLUS REMAINING IN SUCH CASE." 

IT IS TRUE THAT THIS EQUITABLE PRINCIPLE OF THE BANKRUPTCY ACT WAS
SPECIFICALLY AUTHORIZED BY A 1938 AMENDMENT WHICH WAS "DESIGNED TO
REMEDY THE INEQUITY OF RETURNING PROPERTY TO THE BANKRUPT AS LONG AS
THERE ARE CREDITORS, HOWEVER TARDY, WHOSE CLAIMS HAVE NOT BEEN
SATISFIED EVEN IN PART."  3 COLLIER, BANKRUPTCY PARA. 57.33, AT 398. 
BUT IT IS NOTEWORTHY THAT BANKRUPTCY COURTS IN THE EXERCISE OF THEIR
GENERAL EQUITY POWER HAD ALREADY REACHED THIS RESULT LONG BEFORE THE
PRINCIPLE WAS ENACTED INTO LAW.  AS ONE NISI PRIUS BANKRUPTCY COURT
STATED IN IN RE LENOX, 2 F.2D 92, IN 1924, "THIS (THE STATUTE OF
LIMITATIONS) IS A PROVISION FOR THE BENEFIT OF CREDITORS, NOT FOR THE
BENEFIT OF THE BANKRUPT  ...  .  IN THE PRESENT CASE, THE PROVISIONS OF
THE BANKRUPTCY ACT HAVE BEEN COMPLIED WITH, AND THOSE WHO COMPLIED WITH
ALL ITS PROVISIONS HAVE BEEN PAID IN FULL.  BUT THE FACT REMAINS THAT
THE PETITIONER WHO HAD REDUCED HIS CLAIM TO JUDGMENT, THE EXISTENCE AND
VALIDITY OF WHICH THE BANKRUPT RECOGNIZED IN HIS SCHEDULES AND DOES NOT
NOW DENY, HAS RECEIVED NOTHING.  A FUND REMAINS IN THE HANDS OF THE
TRUSTEE."  ID., AT 93.  THE EQUITABLE SOLUTION, THE COURT HELD, WAS TO
ALLOW THE CLAIM, EVEN THOUGH UNTIMELY.  IN WILLIAMS V. RICE, 30 F.2D
814, AN ESTATE, PRESUMABLY WITHOUT ASSETS, WAS REOPENED WHEN NEW ASSETS
WERE DISCOVERED.  THE QUESTION WAS AGAIN WHETHER CREDITORS WHO HAD NOT
FILED TIMELY CLAIMS SHOULD BE ALLOWED TO PROVE THEIR CLAIMS.  NOTING
THAT THE TIME LIMITATION "IS INTENDED PRIMARILY TO REQUIRE CREDITORS TO
PROVE THEIR CLAIMS PROMPTLY, IN ORDER THAT THE ESTATE MAY BE CLOSED
WITHOUT UNDUE DELAY," ID., AT 815, THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT HELD THAT IN THE ABSENCE OF NEGLIGENT FAILURE TO FILE,
CLAIMANTS IN SUCH A CASE COULD FILE AFTER THE TIME LIMITATION.  SEE
ALSO IN RE PIERSON, 174 F. 160, WHERE THE COURT ALLOWED THE REOPENING
OF THE ESTATE AND THE FILING OF CLAIMS PAST THE STATUTORY PERIOD WHEN
NEW ASSETS WERE DISCOVERED.  BUT SEE IN RE SILK, 55 F.2D 917, REACHING
THE OPPOSITE RESULT. 

ANOTHER, THOUGH LESS PRECISE, ANALOGY IN THE BANKRUPTCY AREA CAN BE
DRAWN FROM NASSAU WORKS V. BRIGHTWOOD CO., 265 U.S. 269.  THE ISSUE
THERE WAS WHETHER A CREDITOR WHOSE CLAIM WAS NOT PROVED WITHIN THE
STATUTORY PERIOD ESTABLISHED FOR CREDITORS IN BANKRUPTCY COULD
NEVERTHELESS PARTICIPATE IN A COMPOSITION IN BANKRUPTCY.  MR. JUSTICE
BRANDEIS, WRITING FOR A UNANIMOUS COURT, ANALYZED THE STATUTE IN TERMS
OF ITS PURPOSE AND THE VARIOUS INTERESTS INVOLVED.  FROM THE VIEWPOINT
OF THE OTHER CREDITORS, HE FOUND, "NEITHER THE AMOUNT WHICH A CREDITOR
RECEIVES, NOR THE TIME WHEN HE RECEIVES IT, CAN BE AFFECTED BY THE
AMOUNT OF OTHERS' CLAIMS, OR BY THE TIME OF PROOF, OR BY THEIR FAILURE
TO PROVE  ...  .  NOR CAN THE TIME OF PROOF OF CLAIMS, AS DISTINGUISHED
FROM THEIR ALLOWANCE, BE OF LEGITIMATE INTEREST TO THE BANKRUPT  ...  .
NO REASON IS SUGGESTED WHY CONGRESS SHOULD HAVE WISHED TO BAR
CREDITORS FROM PARTICIPATION IN THE BENEFITS OF A COMPOSITION MERELY
BECAUSE THEIR CLAIMS WERE NOT PROVED WITHIN A YEAR OF THE
ADJUDICATION.  FAILURE TO PROVE WITHIN THE YEAR DOES NOT HARM THE
BANKRUPT.  WHY SHOULD HE GAIN THEREBY?  AND WHY SHOULD THE CREDITOR BE
PENALIZED BY A TOTAL LOSS OF THIS CLAIM?"  265 U.S., AT 272-273. 

THESE FACTORS CAN BE APPLIED TO THE PRESENT CASE WITH EQUAL FORCE. 
WHAT PURPOSE DOES THE STRICT 60-DAY LIMITATION SERVE, EXCEPT AS A
METHOD OF EXPEDITING THE DISTRIBUTION OF VESTED ASSETS TO CREDITORS? 
BUT NO OTHER CREDITORS ARE HERE OBJECTING, FOR NONE EXIST:  THEY HAVE
ALL COMPROMISED THEIR CLAIMS AND YET A SURPLUS REMAINS IN THE ACCOUNT. 
THE GOVERNMENT ITSELF HAS NO REAL INTEREST IN THIS FUND, FOR IT NEITHER
COMES OUT OF THE COMMON WEAL NOR WILL ANY SURPLUS INURE TO THE
TREASURY.  THE ATTORNEY GENERAL IS A MERE STAKEHOLDER, A CUSTODIAN IN
THE TRUE SENSE OF THE WORD.  (FN12)  THE ONLY PERSONS WHO MIGHT
EVENTUALLY BENEFIT FROM THE SURPLUS ARE THOSE GENERAL BENEFICIARIES OF
THE WAR CLAIMS FUND INTO WHICH ANY SURPLUS IS DEPOSITED.  BUT THE 60
DAY RULE CAN HARDLY BE DEEMED A DEVICE FOR AUGMENTING THIS GENERAL FUND
AT THE EXPENSE OF RECOGNIZED CREDITORS, ESPECIALLY IN THE FACE OF
REPEATED AND UNCONTESTED EXPRESSIONS OF CONGRESSIONAL INTENT TO
FACILITATE AND EXPAND THE RIGHTS OF AMERICAN CREDITORS HAVING AN
INTEREST IN THESE ASSETS.  (FN13)

III. 

THE FOREGOING CONSIDERATIONS ARE ESPECIALLY PERSUASIVE HERE WHEN THE
REASON FOR PETITIONERS' DELAY IN BRINGING SUIT IS RECALLED.  IT WAS
GENERALLY KNOWN IN THE JAPANESE COMMUNITY THAT A CLASS SUIT, THE ABE
CASE, HAD BEEN FILED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA.  THE COMPLAINT IN THAT SUIT OUTLINED THE HISTORY
OF THE CONTROVERSY OVER THE PROPER RATE OF EXCHANGE AND IT SPECIFICALLY
NOTED THAT THIS QUESTION WAS "THE SOLE ISSUE ON THIS COMPLAINT FOR
REVIEW  ...  ."  AN EXAMINATION OF THE COMPLAINT, ON FILE AT THE
DISTRICT COURT BUT PRESUMABLY NOT READILY AVAILABLE TO PETITIONERS WHO
LIVED ON THE WEST COAST, REVEALS THAT THE PLAINTIFFS INCLUDED IN THE
CLASS ACTION WERE DEFINED AS THOSE LISTED ON THE FINAL SCHEDULE RATHER
THAN ALL THOSE WHO FILED VALID CLAIMS.  BUT FROM A PRACTICAL
STANDPOINT, THIS DEFINITION, WHICH LEGALLY EXCLUDED THESE PETITIONERS,
MADE NO DIFFERENTIATION BETWEEN THE TOTAL GROUP OF CERTIFICATE HOLDERS
IN ANY MATERIAL RESPECT.  THE LEGAL ISSUE RAISED IN THE COMPLAINT DEALT
ONLY WITH THE EXCHANGE RATE; THE ADMINISTRATIVE RECORD FILED WITH THE
DISTRICT COURT WAS THAT OF THE ABE CLAIM WHICH DID APPLY - AT THE
ADMINISTRATIVE LEVEL - TO PETITIONERS; THE NAMED PLAINTIFF WAS ALSO
KUNIO ABE WHOSE CASE WAS CITED BY THE GOVERNMENT AS DISPOSITIVE OF
PETITIONERS' CLAIMS; NO ACTION WAS IN ANY EVENT TAKEN ON THE COMPLAINT
WHICH WAS HELD IN SUSPENSE PENDING DETERMINATION OF THE SAME LEGAL
ISSUE IN THE ARATANI CASE AND THEN DISMISSED UPON SETTLEMENT WITH THE
ABE SUIT CLAIMANTS.  SINCE PETITIONERS FILED THEIR CLAIM IMMEDIATELY
UPON SETTLEMENT OF THE ABE CASE, THERE CAN BE NO CLAIM THAT THE COURSE
OF ACTION THEY TOOK IN ANY WAY INTERFERED WITH THE SPEED OR MANNER IN
WHICH THIS LITIGATION WAS CONDUCTED. 

THE ONLY ARGUABLE DIFFERENCE IT MIGHT HAVE MADE HAD PETITIONERS FILED
THEIR ACTION IMMEDIATELY UPON PUBLICATION OF THE SCHEDULE IS THAT THE
GOVERNMENT'S WILLINGNESS TO SETTLE THE CASE MIGHT HAVE BEEN DAMPENED
BECAUSE THE LARGER NUMBER OF PLAINTIFFS WOULD HAVE MADE SETTLEMENT MORE
COSTLY TO THE TOTAL FUND.  UPON EXAMINATION, HOWEVER, EVEN THIS
POSSIBILITY SHOULD BE DISCOUNTED WHEN IT IS RECALLED THAT THESE ARE NOT
IN ANY REAL SENSE GOVERNMENT FUNDS, BUT RATHER VESTED ASSETS OF AN
ENEMY DEBTOR WHICH WILL BE DISTRIBUTED TO ANOTHER CLASS OF WAR VICTIMS
IF PETITIONERS' CLAIMS ARE BARRED.  THE GOVERNMENT HAS NO INTEREST IN
THE FUND EXCEPT TO ENFORCE THE PRIMARY CONGRESSIONAL MANDATE THAT BONA
FIDE CREDITORS RECOVER THEIR DUE.  SINCE THE AMOUNT IN THE FUND
ADEQUATELY COVERS A FULL SETTLEMENT WITH ALL THESE CLAIMANTS AT THE ABE
RATE, EXHAUSTING THE SURPLUS SHOULD NOT HAVE PLAYED A PART IN THE
GOVERNMENT'S DECISION TO SETTLE WITH THE ABE CLAIMANTS. 

FOR THESE REASONS WE THINK THE STATUTORY PURPOSE IS BEST SERVED BY
INVOKING THE EQUITABLE DOCTRINE OF TOLLING TO PRESERVE PETITIONERS'
ACTION IN WHICH THEY SEEK PAYMENT ON THE SAME BASIS AS THAT ACCORDED
THE CLAIMANTS IN ABE. 

                                     IV. 

IN LIGHT OF THESE CIRCUMSTANCES WE FIND THE ATTORNEY GENERAL'S
ARGUMENTS UNPERSUASIVE.  HE ARGUES PRIMARILY THAT THE DOCTRINE OF
ESTOPPEL DOES NOT APPLY IN THIS CASE TO PREVENT ASSERTION OF THE
STATUTE OF LIMITATIONS.  WE DO NOT REACH THE ESTOPPEL ISSUE, BECAUSE WE
HOLD THAT THE STATUTORY SCHEME ITSELF REQUIRES TOLLING THE LIMITATION
PERIOD DURING THE PENDENCY OF THE ABE LITIGATION.  IN THIS RESPECT, THE
GOVERNMENT CONTENDS THAT BECAUSE THIS SUIT IS, AT LEAST FORMALLY, ONE
AGAINST THE SOVEREIGN, SEE BANCO MEXICANO V. DEUTSCHE BANK, 263 U.S.
591, THE STATUTE OF LIMITATIONS MAY NOT BE TOLLED WITHOUT EXPRESS
CONGRESSIONAL CONSENT.  IT IS WELL SETTLED, OF COURSE, THAT THE
GOVERNMENT IS ORDINARILY IMMUNE FROM SUIT, AND THAT IT MAY DEFINE THE
CONDITIONS UNDER WHICH IT WILL PERMIT SUCH ACTIONS.  E.G., KENDALL V.
UNITED STATES, 107 U.S. 123; UNITED STATES V. SHERWOOD, 312 U.S. 584. 
IT IS ALSO TRUE THAT IN MANY CASES THIS COURT HAS READ PROCEDURAL RULES
EMBODIED IN STATUTES WAIVING IMMUNITY STRICTLY, WITH AN EYE TO
EFFECTUATING A RESTRICTIVE LEGISLATIVE PURPOSE WHEN CONGRESS
RELINQUISHES SOVEREIGN IMMUNITY.  E.G., KENDALL V. UNITED STATES,
SUPRA; UNITED STATES V. SHERWOOD, SUPRA; SORIANO V. UNITED STATES, 352
U.S. 270; COMPARE CROWN COAT FRONT CO. V. UNITED STATES, POST, P. 503. 

THIS CASE IS HOWEVER, WHOLLY DIFFERENT FROM THOSE CASES ON WHICH THE
GOVERNMENT PRIMARILY RELIES, WHERE THE PUBLIC TREASURY WAS DIRECTLY
AFFECTED.  HERE CONGRESS ESTABLISHED A METHOD FOR RETURNING SEIZED
ENEMY ASSETS TO UNITED STATES CREDITORS, ASSETS THAT WERE NEVER
CONTEMPLATED AS FINDING THEIR WAY PERMANENTLY INTO THE PUBLIC FISC.  AS
THE HOUSE AND SENATE REPORTS ON THIS STATUTE DECLARE, "THE CUSTODIAN
HAS EMPHASIZED TO THE COMMITTEE THAT HE IS ANXIOUS TO SATISFY THE
PROPER CLAIMS OF CREDITORS AND THE COMMITTEE CONCUR IN THE VIEW THAT
THERE EXISTS A STRONG MORAL OBLIGATION TO SATISFY THEM INASMUCH AS, BUT
FOR THE VESTING OF THEIR DEBTORS' PROPERTY, THEY WOULD PRESUMABLY HAVE
BEEN ABLE TO PURSUE ORDINARY REMEDIES AGAINST THE DEBTORS."  H.R. REP.
NO. 2398, 79TH CONG., 2D SESS., 10 (1946); S. REP. NO. 1839, 79TH
CONG., 2D SESS., 3-4 (1946).  WE CONSIDER IT MUCH MORE CONSISTENT WITH
THE OVERALL CONGRESSIONAL PURPOSE TO APPLY A TRADITIONAL EQUITABLE
TOLLING PRINCIPLE, APTLY SUITED TO THE PARTICULAR FACTS OF THIS CASE
AND NOWHERE ESCHEWED BY CONGRESS, TO PRESERVE PETITIONERS' CAUSE OF
ACTION.  BURNETT V. NEW YORK CENTRAL R. CO., 380 U.S. 424; CF. MIDSTATE
HORTICULTURAL CO. V. PENNSYLVANIA R. CO., 320 U.S. 356, 360. 

THE JUDGMENT OF THE COURT OF APPEALS UPHOLDING THE DISMISSAL OF THIS
ACTION IS THEREFORE REVERSED, AND THE CASE IS REMANDED TO THAT COURT
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  THIS SUIT WAS ORIGINALLY FILED AGAINST ROBERT F. KENNEDY, THEN
ATTORNEY GENERAL.  NICHOLAS DEB.  KATZENBACH WAS SUBSTITUTED AS
STATUTORY DEFENDANT IN THE DISTRICT COURT, AND RAMSEY CLARK, THE
PRESENT ATTORNEY GENERAL, SUCCEEDED HIM AS RESPONDENT HERE BY OPERATION
OF LAW.  SUP. CT. RULE 48(3). 

FN2  THE CERTIFICATES EXPRESSED THEIR VALUE IN TERMS OF YEN, AND BORE
THE FOLLOWING STATEMENT, IN BOTH JAPANESE AND ENGLISH: 

"THIS IS TO CERTIFY THAT THE SUM OF YEN ------- HAS BEEN SUBMITTED TO
OUR HEAD OFFICE, YOKOHAMA, TO BE PLACED IN FIXED DEPOSIT THERE IN YOUR
NAME AT --- PERCENT.  PER ANNUM FOR -- MONTHS, MATURING ---------,
SUBJECT TO THE CONDITIONS ON THE BACK HEREOF. 

"BOTH PRINCIPAL AND INTEREST ARE PAYABLE, WHEN DUE, AT OUR AFORESAID
HEAD OFFICE, YOKOHAMA, UPON SURRENDER OF THIS CERTIFICATE, PROPERLY
ENDORSED AND/OR SEALED." 

FN3  SECTION 9(A) OF THE TRADING WITH THE ENEMY ACT, 50 U.S.C. APP.
SEC. 9(A). 

FN4  SECTION 34(A) LIMITS ALLOWABLE DEBT CLAIMS ONLY TO "THOSE OF
CITIZENS OF THE UNITED STATES OR OF THE PHILIPPINE ISLANDS; THOSE OF
CORPORATIONS ORGANIZED UNDER THE LAWS OF THE UNITED STATES OR ANY
STATE, TERRITORY, OR POSSESSION THEREOF, OR THE DISTRICT OF COLUMBIA OR
THE PHILIPPINE ISLANDS; THOSE OF OTHER NATURAL PERSONS WHO ARE AND HAVE
BEEN SINCE THE BEGINNING OF THE WAR RESIDENTS OF THE UNITED STATES AND
WHO HAVE NOT DURING THE WAR BEEN INTERNED OR PAROLED PURSUANT TO THE
ALIEN ENEMY ACT; AND THOSE ACQUIRED BY THE CUSTODIAN."    FN5  THE
ATTORNEY GENERAL ASSUMED THE DUTIES OF THE CUSTODIAN IN 1946 BY
EXECUTIVE ORDER NO. 9788, 11 FED. REG. 11981. 

FN6  COUNSEL FOR PETITIONERS HAVE SUPPLIED US WITH THE FOLLOWING
INFORMATION AS TO THE RANGE IN AMOUNTS OF THE CLAIMS INVOLVED IN THIS
LITIGATION:  "OF THE 1,120 HONDA CLAIMANTS WHO HAVE  ... RETAINED (OUR
ASSOCIATED CALIFORNIA COUNSEL)  ...  TO THE PRESENT DATE, THE HIGHEST
IS FOR 120,000 YEN - ABOUT $30,000 AT THE ABE RATIO OR ABOUT $332 AT
THE GOVERNMENT'S ORIGINAL RATE - AND THE LOWEST CLAIM IS FOR 50 YEN, OR
ABOUT $12 (ABOUT 14 CENTS AT THE LOWER RATE.)  AMONG ALL 4,100
PETITIONERS THE LARGEST DEBT CLAIMANT OF WHICH WE ARE AWARE CHOSE OTHER
COUNSEL, AND HIS CLAIM WAS FOR 246,000 YEN (ABOUT $60,000, OR ABOUT
$680 AT THE LOWER RATE)  ...  . 

"THE AVERAGE CLAIM AMONG THE 1,120 RETAINER CLAIMANTS IN HONDA IS FOR
ABOUT $2,000 AT THE ABE RATE, AND THE MEAN CONSIDERABLY LOWER; THE
AVERAGE AMONG ALL 4,100 PETITIONERS IS NECESSARILY MORE MODEST STILL,
BECAUSE IT INCLUDES THE 2,980 CLAIMANTS WHO HAVE NOT EVEN SOUGHT
REPRESENTATION BY COUNSEL IN THIS SUIT, PRESUMABLY BECAUSE OF THE VERY
SMALL AMOUNTS OF THEIR CLAIMS  ...  ." 

FN7  THIS LEGISLATION, ENACTED IN 1948, AUTHORIZES THE ATTORNEY
GENERAL TO MAKE AWARDS IN AMOUNTS NOT TO EXCEED $100,000 "ON ANY CLAIM
BY A PERSON OF JAPANESE ANCESTRY AGAINST THE UNITED STATES ARISING ON
OR AFTER DECEMBER 7, 1941,  ...  THAT IS  ...  A REASONABLE AND NATURAL
CONSEQUENCE OF THE EVACUATION OR EXCLUSION OF SUCH PERSON BY THE
APPROPRIATE MILITARY COMMANDER FROM A MILITARY AREA IN ARIZONA,
CALIFORNIA, OREGON, OR WASHINGTON; OR FROM THE TERRITORY OF ALASKA, OR
THE TERRITORY OF HAWAII, UNDER AUTHORITY OF EXECUTIVE ORDER  ...  ." 
70 STAT. 513, 50 U.S.C. APP. SEC. 1981. 

FN8  THE REGULATION PROVIDES:  "A CLAIM SHALL BE DEEMED ABANDONED
WHEN AFTER REQUEST TO DO SO THE CLAIMANT HAS NOT FURNISHED RELEVANT
INFORMATION IN SUPPORT OF HIS CLAIM, OR WHERE BY VIRTUE OF HIS FAILURE
TO RESPOND TO INQUIRIES REGARDING THE CLAIM IT APPEARS THAT HE DOES NOT
WISH TO PURSUE IT FURTHER."  NEITHER IN HIS MOTION TO DISMISS THE
COMPLAINT IN THE DISTRICT COURT, NOR ON REVIEW IN THE COURT OF APPEALS
AND IN THIS COURT, HAS THE ATTORNEY GENERAL ADVANCED THE ARGUMENT THAT
FAILURE TO COMPLY WITH THIS ADMINISTRATIVE REGULATION IS BY ITSELF AN
INDEPENDENT REASON FOR DISMISSING THIS SUIT.  IT SUFFICES TO SAY HERE
THAT SUCH AN ARGUMENT WOULD BE OPEN TO ATTACK ON LINES SIMILAR TO THOSE
WE HOLD REQUIRE TOLLING THE STATUTE OF LIMITATIONS. 

FN9  THE CLAIMANTS IN ARATANI RECOVERED CONSIDERABLY LESS THAN THOSE
IN ABE BECAUSE THE AMOUNTS OF THEIR CLAIMS EXCEEDED THE VESTED ASSETS
OF THE SUMITOMO BANK.  228 F. SUPP.  706, 708. 

FN10  THE DISTRICT COURT APPROVED THE SETTLEMENTS IN BOTH ARATANI AND
ABE ON MARCH 18, 1964, 228 F. SUPP. 706, AND ENTERED ITS FINAL ORDER ON
MAY 18, 1964.  THE PRESENT SUIT WAS FILED MAY 19, 1964.   THE WRIT OF
CERTIORARI IN ARATANI WAS DISMISSED ON MARCH 9, 1965, 380 U.S. 938,
UPON STIPULATION OF COUNSEL THAT THE CASE HAD BEEN SETTLED. 

FN11  AT THE COMMITTEE HEARINGS ON THIS SECTION, THE FOLLOWING
DIALOGUE OCCURRED BETWEEN THE CHAIRMAN, CONGRESSMAN CELLER OF NEW YORK,
AND THE CUSTODIAN, MR. MARKHAM: 

"MR. MARKHAM.  ...  WE PROPOSE THAT THE LAW BE CHANGED SO THAT THE
MAN COULD FILE HIS CLAIM, BUT HE WOULD BE PAID ON A RATABLE BASIS, IF
THERE IS NOT ENOUGH MONEY FOR EVERYBODY, AND THAT WE SHOULD HAVE A
MARSHALING OF ASSETS AND A MARSHALING OF DEBTS, SO THAT EVERYBODY WOULD
BE TREATED ALIKE AND WOULD NOT DEPEND UPON THE TIME WHEN THEY BROUGHT
THE SUIT OR THE ORDER IN WHICH THE SUITS WERE BROUGHT. 

     *         *         *     *        * 

"MR. CELLAR.  BUT YOU WANT TO BE SURE THAT YOU DON'T GET INTO A
SITUATION WHERE ONE CREDITOR CAN FRITTER AWAY ALL THE ASSETS OF AN
ENTERPRISE, AND YOU WANT TO APPLY THEM UNDER THE PRINCIPLE NOW APPLIED
IN THE BANKRUPTCY ACT, GIVE EACH CREDITOR AN EQUITABLE SHARE IN THE
ASSETS? 

"MR. MARKHAM.  THAT IS THE WAY I WANT IT TO BE DONE.  THAT IS WHAT I
WANT TO DO."  HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE
ON THE JUDICIARY ON H.R. 5089, 79TH CONG., 2D SESS., 17 (1946).  SEE
ALSO, ID., AT 7, 11-13, 113-114. 

CONGRESSMAN CELLER USED THE SAME REFERENCE WHEN HE INTRODUCED THE
BILL TO THE HOUSE:  "THE BILL BEFORE US PROVIDES THAT THE ALIEN
PROPERTY CUSTODIAN TAKES THE PROPERTY AND SELLS IT AND DIVIDES THE
PROCEEDS EQUITABLY AMONG ALL CREDITORS AS PARI PASSU, IN BANKRUPTCY." 
92 CONG. REC. 10217 (1946).  AND SEE H.R. REP. NO. 2398, 79TH CONG., 2D
SESS., 10, 14 (1946); S. REP. NO. 1839, 79TH CONG., 2D SESS., 4, 8
(1946). 

FN12  UNDER THE WAR CLAIMS ACT OF 1948, UNDISTRIBUTED ASSETS OF ENEMY
PROPERTY ARE TRANSFERRED TO A WAR CLAIMS FUND FOR DISTRIBUTION TO
UNITED STATES CITIZENS WHO SUFFERED LOSSES CAUSED BY ENEMY MILITARY
OPERATIONS DURING WORLD WAR II.  62 STAT. 1246-1247, AS AMENDED, 50
U.S.C. APP. SECS 39, 2012.  THAT ACT ALSO DECLARES THAT NO VESTED
PROPERTY BE RETURNED TO THE FORMER GERMAN OR JAPANESE OWNERS AS HAD
BEEN THE CASE WITH SOME ASSETS AFTER WORLD WAR I. SEC. 39(A).  SEE H.R.
REP. NO. 976, 80TH CONG., 1ST SESS., 2-3 (1947); H.R. REP. NO. 2439,
80TH CONG., 2D SESS. (1948); S. REP. NO. 1742, 80TH CONG., 2D SESS.
(1948). 

FN13  SEE REFERENCES CITED IN N. 11, SUPRA.  THERE IS NOTHING IN THE
LEGISLATIVE HISTORY OF THE 1946 ACT INDICATING THAT CONGRESS HAD THE
INTERESTS OF THOSE WHO WERE IN EFFECT "REMAINDER BENEFICIARIES" IN MIND
WHEN IMPOSING THE PROCEDURES OF SEC 34.  IT IS FURTHER NOTEWORTHY THAT
IN 1953 THE CONGRESS REFUSED TO ENACT LEGISLATION, SUPPORTED BY THE
GOVERNMENT, THAT WOULD HAVE HAD THE EFFECT OF WIPING OUT ENTIRELY DEBT
CLAIMS PAYABLE IN FOREIGN CURRENCY, THE YOKOHAMA BANK CERTIFICATES
BEING THE LARGEST GROUP OF SUCH DEBTS.  SEE S. REP. NO. 616, 83D CONG.,
1ST SESS. (1953); 99 CONG. REC. 7408-7409 (1953). 

MR. JUSTICE CLARK TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :























CROWN COAT FRONT CO. V. U.S. 386 U.S. 503 


NO. 371.  ARGUED FEBRUARY 13-14, 1967.  - DECIDED APRIL 10, 1967.  - 363
F.2D 407, REVERSED AND REMANDED. 


PETITIONER IN MAY 1956 AGREED TO FURNISH CANTEEN COVERS TO THE UNITED
STATES UNDER A CONTRACT CONTAINING A STANDARD "DISPUTES" CLAUSE
REQUIRING THE CONTRACTING OFFICER TO DECIDE "ANY DISPUTE CONCERNING A
QUESTION OF FACT ARISING UNDER THE CONTRACT," AND PROVIDING FOR APPEAL
TO THE DEPARTMENT HEAD OR HIS REPRESENTATIVE, WHOSE DECISION WAS TO BE
FINAL UNLESS JUDICIALLY DETERMINED TO HAVE BEEN FRAUDULENT, ARBITRARY,
CAPRICIOUS, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH. 
THE GOVERNMENT LATER TESTED MATERIAL SAMPLES AND REJECTED THEM AS NOT
MEETING CONTRACT SPECIFICATIONS.  PETITIONER AGREED TO A PRICE
REDUCTION AND COMPLETED THE CONTRACT IN DECEMBER 1956.   IN MARCH 1959
PETITIONER ALLEGEDLY FIRST LEARNED THE NATURE OF THE GOVERNMENT'S TESTS
AND IN OCTOBER 1961 DEMANDED AN EQUITABLE ADJUSTMENT IN THE CONTRACT
PRICE, ASSERTING IN THE CLAIM FILED WITH THE CONTRACTING OFFICER THAT
THE TESTS CONSTITUTED A CHANGE IN CONTRACT SPECIFICATIONS.  IN FEBRUARY
1963 THE BOARD OF CONTRACT APPEALS AFFIRMED THE CONTRACTING OFFICER'S
REJECTION OF THE CLAIM.  ABOUT FIVE MONTHS LATER PETITIONER SUED IN THE
DISTRICT COURT ON ITS CLAIM, ALLEGING THAT THE BOARD'S DECISION WAS
CAPRICIOUS, ARBITRARY AND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE
DISTRICT COURT, WITHOUT DECIDING WHETHER THE CLAIM AROSE UNDER THE
CONTRACT WITHIN THE MEANING OF THE DISPUTES CLAUSE, UPHELD THE
GOVERNMENT'S CONTENTION THAT THE CAUSE OF ACTION ACCRUED WHEN
PERFORMANCE OF THE CONTRACT WAS COMPLETED AND WAS THUS FORECLOSED BY 28
U.S.C. SEC. 2401(A), WHICH BARS A CIVIL ACTION AGAINST THE UNITED
STATES UNLESS THE COMPLAINT IS FILED WITHIN SIX YEARS "AFTER THE RIGHT
OF ACTION FIRST ACCRUES."  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  WHEN ADMINISTRATIVE PROCEEDINGS WITH RESPECT TO A CONTRACTOR'S
CLAIM SUBJECT TO THE DISPUTES CLAUSE IN A GOVERNMENT CONTRACT EXTEND
BEYOND THE COMPLETION OF THE CONTRACT, HIS RIGHT OF ACTION "FIRST
ACCRUES" WITHIN THE MEANING OF 28 U.S.C. SEC. 2401(A) WHEN THE
ADMINISTRATIVE ACTION IS FINAL, AND NOT BEFORE.  NAGER ELECTRIC CO.,
INC. V. UNITED STATES, 177 CT. CL. 234, 368 F.2D 847, FOLLOWED.  PP.
510-522. 

(A)  THE "CIVIL ACTION" REFERRED TO IN SEC. 2401(A) IS A CIVIL ACTION
IN A COURT OF COMPETENT JURISDICTION.  P. 510. 

(B)  WITH RESPECT TO CLAIMS ARISING UNDER THE DISPUTES CLAUSE OF A
GOVERNMENT CONTRACT, THE CONTRACTOR HAS IN EFFECT AGREED TO CONVERT
WHAT MIGHT OTHERWISE BE CLAIMS FOR BREACH OF CONTRACT INTO CLAIMS FOR
EQUITABLE ADJUSTMENT.  P. 511. 

(C)  ADJUSTMENT OF SUCH CLAIMS, AS PROVIDED IN THE CONTRACT, MUST BE
MADE BY THE CONTRACTING OFFICER SUBJECT TO APPEAL TO THE DEPARTMENT
HEAD OR HIS REPRESENTATIVE, HERE THE BOARD OF CONTRACT APPEALS, AND NOT
UNTIL THAT BOARD HAS ACTED IS THE CONTRACTOR'S CLAIM SUBJECT TO COURT
ADJUDICATION.   P. 511. 

(D)  THE CONTRACTOR MUST SEEK THE RELIEF PROVIDED FOR UNDER THE
CONTRACT OR BE BARRED FROM ANY RELIEF IN THE COURTS.  P. 512. 

(E)  THE COURT REVIEW, WHICH IS NOT DE NOVO, IS FOCUSED UPON THE
VALIDITY OF THE ADMINISTRATIVE DECISION, PENDING THE MAKING OF WHICH
THE CONTRACTOR CANNOT KNOW WHAT HIS JUSTICIABLE CLAIM IS.  PP. 512
514. 

(F)  TO HOLD THAT THE SIX-YEAR LIMITATION PERIOD RUNS FROM THE
CONTRACT COMPLETION DATE, AS THE GOVERNMENT URGES, WOULD DEPRIVE THE
CONTRACTOR OF JUDICIAL REVIEW WHERE ADMINISTRATIVE PROCEEDINGS EXTEND
MORE THAN SIX YEARS BEYOND THAT DATE, A RESULT WHICH WOULD CONFLICT
WITH THE POLICY UNDERLYING THE WUNDERLICH ACT.  P. 514. 

(G)  DETERMINATION OF WHEN A "CAUSE OF ACTION" FIRST "ACCRUES" MUST
BE MADE WITH REGARD TO THE PRACTICAL ENDS TO BE SERVED BY STATUTES OF
LIMITATIONS.  MCMAHON V. UNITED STATES, 342 U.S. 25, AND OTHER CASES
NOT INVOLVING THE TUCKER ACT, DISTINGUISHED.  PP. 516-519. 

(H)  IN ENACTING A GENERAL STATUTE LIMITING SUITS BY THE GOVERNMENT
TO THOSE WHICH ARE BROUGHT WITHIN "SIX YEARS AFTER THE RIGHT OF ACTION
ACCRUES OR WITHIN ONE YEAR AFTER FINAL DECISIONS  ... IN APPLICABLE
ADMINISTRATIVE PROCEEDINGS REQUIRED BY CONTRACT OR BY LAW" (28 U.S.C.
SEC 2415) CONGRESS MANIFESTED NO INTENTION TO CONSTRUE SEC 2401, WHICH
GOVERNS A PRIVATE LITIGANT'S RIGHT TO SUE THE GOVERNMENT.  PP. 519
522. 

2.  THE DETERMINATION OF WHETHER PETITIONER'S CLAIM AROSE UNDER THE
CONTRACT OR INVOLVED A BREACH OF CONTRACT CLAIM, WHICH ACCRUED NO LATER
THAN THE CONTRACT COMPLETION DATE, WILL BE OPEN ON REMAND TO THE
DISTRICT COURT.  P. 522. 

CROWN COAT FRONT CO., INC. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE STANDARD DISPUTES CLAUSE IN GOVERNMENT CONTRACTS REQUIRES THAT
"ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THIS
CONTRACT," NOT DISPOSED OF BY AGREEMENT, SHALL BE DECIDED BY THE
CONTRACTING OFFICER, WITH THE RIGHT OF APPEAL WITHIN 30 DAYS TO THE
DEPARTMENT HEAD OR HIS REPRESENTATIVE (NORMALLY A BOARD OF CONTRACT
APPEALS) WHOSE DECISION SHALL BE FINAL "UNLESS DETERMINED BY A COURT OF
COMPETENT JURISDICTION TO HAVE BEEN FRAUDULENT, ARBITRARY, CAPRICIOUS,
OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH."  (FN1)  THE
"ARISING UNDER" CLAIMS SUBJECT TO FINAL ADMINISTRATIVE DETERMINATION
ARE THOSE CLAIMS ASSERTED UNDER OTHER CLAUSES OF THE CONTRACT CALLING
FOR EQUITABLE ADJUSTMENT OF THE PURCHASE PRICE OR EXTENSIONS OF TIME
UPON THE OCCURRENCE OF CERTAIN EVENTS.  (FN2)  ONE OF THESE CLAUSES IS
THE SO-CALLED "CHANGES" CLAUSE WHICH PERMITS THE CONTRACTING OFFICER TO
MAKE CHANGES WITHIN THE SCOPE OF THE CONTRACT, PROVIDES THAT IF ANY
CHANGE CAUSES AN INCREASE OR DECREASE IN THE COST OF, OR THE TIME
REQUIRED FOR THE PERFORMANCE OF, THE WORK, "AN EQUITABLE ADJUSTMENT
SHALL BE MADE IN THE CONTRACT PRICE OR DELIVERY SCHEDULE," AND STATES
THAT FAILURE TO AGREE UPON AN ADJUSTMENT SHALL BE A QUESTION OF FACT
WITHIN THE MEANING OF THE DISPUTES CLAUSE.  (FN3) 

THIS CASE INVOLVES A CLAIM FOR AN EQUITABLE ADJUSTMENT, ASSERTED
UNDER THE CHANGES CLAUSE AND REJECTED BY THE CONTRACTING OFFICER AND
THE ARMED SERVICES BOARD OF CONTRACT APPEALS.  THE CONTRACTOR BROUGHT
SUIT IN THE DISTRICT COURT UNDER 28 U.S.C. SEC 1346  (FN4)  ALLEGING
THAT THE DECISION OF THE BOARD WAS ARBITRARY, CAPRICIOUS AND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE DISTRICT COURT DISMISSED THE
CASE AS BARRED BY 28 U.S.C. SEC. 2401(A) WHICH PROVIDES THAT "EVERY
CIVIL ACTION COMMENCED AGAINST THE UNITED STATES SHALL BE BARRED UNLESS
THE COMPLAINT IS FILED WITHIN SIX YEARS AFTER THE RIGHT OF ACTION FIRST
ACCRUES  ...  ."  THE PRINCIPAL QUESTION HERE IS WHETHER THE "RIGHT OF
ACTION" WITH RESPECT TO A CLAIM WITHIN THE DISPUTES CLAUSE FIRST
ACCRUES AT THE TIME OF THE FINAL ADMINISTRATIVE ACTION OR AT AN EARLIER
DATE. 

THE FACTS ARE QUITE SIMPLE.  ON MAY 14, 1956, PETITIONER CONTRACTED
WITH THE UNITED STATES TO FURNISH A SPECIFIED NUMBER OF CANTEEN COVERS
WHICH WERE TO BE LINED WITH MILDEW-RESISTANT FELT OF CERTAIN
SPECIFICATIONS.  THE GOVERNMENT, WHICH WAS AUTHORIZED TO INSPECT
MATERIALS TO BE USED UNDER THE CONTRACT, TESTED AND REJECTED CERTAIN
SAMPLES OF FELT PURCHASED BY PETITIONER BECAUSE THEY ALLEGEDLY DID NOT
CONTAIN THE CONTRACT QUANTITIES OF MILDEW INHIBITORS.  PETITIONER
AGREED TO A PRICE REDUCTION, HOWEVER, AND WAS PERMITTED TO COMPLETE THE
CONTRACT.  FINAL DELIVERY, ORIGINALLY SCHEDULED FOR OCTOBER 11, 1956,
WAS MADE ON DECEMBER 14, 1956.  ALLEGEDLY, IN MARCH 1959, PETITIONER
FIRST DISCOVERED THE NATURE OF THE TESTS WHICH THE UNITED STATES HAD
PERFORMED ON THE FELT.  CLAIMING THAT THE USE OF SUCH TESTS WAS NOT
WITHIN THE CONTEMPLATION OF THE CONTRACT AND CONSTITUTED A CHANGE IN
CONTRACT SPECIFICATIONS, PETITIONER FILED A CLAIM WITH THE CONTRACTING
OFFICER IN OCTOBER 1961, DEMANDING AN EQUITABLE ADJUSTMENT IN THE
CONTRACT PRICE IN THE FORM OF A REFUND OF THE PRICE REDUCTION AND
COMPENSATION FOR INCREASED COSTS OCCASIONED BY SUBSTANTIAL DELAY
RESULTING FROM THE GOVERNMENT'S REJECTION OF THE FELT SAMPLES.  THE
CONTRACTING OFFICER DENIED THE CLAIM.  ON FEBRUARY 28, 1963, THE BOARD
OF CONTRACT APPEALS AFFIRMED THE CONTRACTING OFFICER'S DECISION.  ON
JULY 31, 1963, MORE THAN SIX YEARS AFTER PETITIONER HAD COMPLETED
PERFORMANCE OF THE CONTRACT, PETITIONER BROUGHT SUIT IN THE DISTRICT
COURT ALLEGING THAT THE BOARD'S DECISION WAS CAPRICIOUS, ARBITRARY AND
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND THAT IT WAS ENTITLED TO AN
EQUITABLE ADJUSTMENT AS PROVIDED IN THE CONTRACT.  THE UNITED STATES,
AMONG OTHER THINGS, DENIED THAT THE CLAIM WAS WITHIN THE DISPUTES
CLAUSE AND ASSERTED THAT THE SUIT WAS TIME-BARRED BY SEC. 2401(A). 
WITHOUT DECIDING WHETHER THE CLAIM AROSE UNDER THE CONTRACT WITHIN THE
MEANING OF THE DISPUTES CLAUSE, THE DISTRICT COURT DISMISSED THE SUIT
AS BARRED BY THE STATUTE OF LIMITATIONS.  THE COURT OF APPEALS, SITTING
EN BANC, AFFIRMED IN A FIVE-TO-FOUR DECISION.  363 F.2D 407.  RELYING
ON MCMAHON V. UNITED STATES, 342 U.S. 25, AND ITS OWN DECISION IN
STATES MARINE CORP. OF DELAWARE V. UNITED STATES, 283 F.2D 776, WHICH
AROSE UNDER THE SUITS IN ADMIRALTY ACT, THE MAJORITY BELOW CONCLUDED
THAT THE RIGHT OF ACTION FIRST ACCRUED NO LATER THAN DECEMBER 14, 1956,
THE DATE OF THE FINAL DELIVERY OF THE DISPUTED CANTEEN COVERS, AND WAS
THEREFORE TIME-BARRED BY SEC. 2401(A).  THE COURT DISAGREED WITH THE
DECISION OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN NORTHERN
METAL CO. V. UNITED STATES, 350 F.2D 833, WHICH, LIKE STATES MARINE,
SUPRA, INVOLVED THE SUITS IN ADMIRALTY ACT.  41 STAT. 525, AS AMENDED. 
THE COURT OF APPEALS FOR THE THIRD CIRCUIT HAD AGREED WITH STATES
MARINE AS TO WHEN THE TIME BAR BEGINS TO RUN BUT HAD HELD THAT THE
STATUTE WAS TOLLED DURING THE PENDENCY OF THE ADMINISTRATIVE
PROCEEDINGS.  BECAUSE OF THIS APPARENT CONFLICT, WE GRANTED CERTIORARI,
385 U.S. 811.  WE REVERSE. 

SINCE THE DECISION BELOW, THE COURT OF CLAIMS HAS DECIDED NAGER
ELECTRIC CO., INC. V. UNITED STATES, 177 CT. CL. 234, 368 F.2D 847, A
UNANIMOUS DECISION BY THAT COURT SUPPORTED BY AN EXHAUSTIVE OPINION BY
JUDGE DAVIS DEALING WITH THE APPLICATION OF THE "FIRST ACCRUAL"
LANGUAGE OF 28 U.S.C. SEC 2501  (FN5)  TO BOTH BREACH AND DISPUTES
CLAUSE CLAIMS UNDER THE TYPICAL GOVERNMENT CONTRACT.  THE CONCLUSION OF
THE COURT OF CLAIMS WAS THAT IT WOULD ADHERE TO WHAT IT CONSIDERED TO
BE ITS LONG-STANDING RULE:  (1) WHEN ADMINISTRATIVE PROCEEDINGS WITH
RESPECT TO A CONTRACTOR'S CLAIM SUBJECT TO THE DISPUTES CLAUSE EXTEND
BEYOND THE COMPLETION OF THE CONTRACT, HIS RIGHT OF ACTION FIRST
ACCRUES WHEN THE ADMINISTRATIVE ACTION IS FINAL,  (FN6)  AND NOT
BEFORE, AND (2) WHEN THE CONTRACTOR HAS BREACH CLAIMS AS WELL AS
DISPUTES CLAUSE CLAIMS THE STATUTE BEGINS TO RUN ON BREACH CLAIMS AS
WELL ONLY AT THE CONCLUSION OF ADMINISTRATIVE ACTION ON THE CLAIMS
ARISING UNDER THE CONTRACT.  (FN7)  AS WILL BE EVIDENT BELOW, WE DO NOT
REACH THE QUESTION OF BREACH CLAIMS IN THIS CASE.  BUT WITH RESPECT TO
CLAIMS ARISING UNDER THE CONTRACT, SUCH AS ONE ASSERTED UNDER THE
CHANGES CLAUSE, WE AGREE WITH THE COURT OF CLAIMS AND ESSENTIALLY FOR
THE REASONS WHICH THAT COURT ARTICULATED. 

1.  WE START WITH THE OBVIOUS:  SECTION 2401(A) PROVIDES A TIME LIMIT
UPON BRINGING CIVIL ACTIONS AGAINST THE UNITED STATES.  THE "CIVIL
ACTION" REFERRED TO IS A CIVIL ACTION IN A COURT OF COMPETENT
JURISDICTION.  CF. UNEXCELLED CHEMICAL CORP. V. UNITED STATES, 345 U.S.
59.  SUCH A CIVIL SUIT IS SEEMINGLY BARRED IF THE RIGHT TO BRING IT
FIRST ACCRUED MORE THAN SIX YEARS PRIOR TO THE DATE OF FILING THE
SUIT.  OUR INITIAL INQUIRY IS, THEREFORE, WHEN THE RIGHT OF THE
CONTRACTOR IN THIS CASE TO BRING SUIT IN THE DISTRICT COURT FIRST
ACCRUED.  IN OUR OPINION, IF ITS CLAIM AROSE UNDER THE CONTRACT, IT
FIRST ACCRUED AT THE TIME OF THE FINAL DECISION OF THE ARMED SERVICES
BOARD OF CONTRACT APPEALS, THAT IS, UPON THE COMPLETION OF THE
ADMINISTRATIVE PROCEEDINGS CONTEMPLATED AND REQUIRED BY THE PROVISIONS
OF THE CONTRACT. 

WITH RESPECT TO CLAIMS ARISING UNDER THE TYPICAL GOVERNMENT CONTRACT,
THE CONTRACTOR HAS AGREED IN EFFECT TO CONVERT WHAT OTHERWISE MIGHT BE
CLAIMS FOR BREACH OF CONTRACT INTO CLAIMS FOR EQUITABLE ADJUSTMENT. 
THE CHANGES CLAUSE, FOR EXAMPLE, PERMITS THE GOVERNMENT TO MAKE CHANGES
IN CONTRACT SPECIFICATIONS.  SUCH CHANGES ARE NOT BREACHES OF
CONTRACT.  THEY DO GIVE RISE TO CLAIMS FOR EQUITABLE ADJUSTMENTS WHICH
THE GOVERNMENT AGREES TO MAKE, IF THE COST OF PERFORMANCE IS INCREASED
OR THE TIME FOR PERFORMANCE CHANGED.  BUT WHETHER AND TO WHAT EXTENT AN
ADJUSTMENT IS REQUIRED ARE QUESTIONS TO BE ANSWERED BY THE METHODS
PROVIDED IN THE CONTRACT ITSELF.  THE CONTRACTOR MUST PRESENT HIS CLAIM
TO THE CONTRACTING OFFICER, WHOSE DECISION IS FINAL UNLESS APPEALED FOR
FINAL ACTION BY THE DEPARTMENT HEAD OR HIS REPRESENTATIVE, HERE THE
ARMED SERVICES BOARD OF CONTRACT APPEALS.  UNTIL THAT BOARD HAS ACTED,
THE CONTRACTOR'S CLAIM IS NOT SUBJECT TO ADJUDICATION IN THE COURTS. 
(FN8)  UNTIL THEN, HE HAS ONLY THE RIGHT TO HAVE THE EXISTENCE AND
EXTENT OF HIS CLAIMED ADJUSTMENT DETERMINED BY THE ADMINISTRATIVE
PROCESS AGREED UPON.  BUT, AS WE HAVE SAID, THE "RIGHT OF ACTION" OF
WHICH SEC. 2401(A) SPEAKS IS NOT THE RIGHT TO ADMINISTRATIVE ACTION BUT
THE RIGHT TO FILE A CIVIL ACTION IN THE COURTS AGAINST THE UNITED
STATES.  UNDER THE CONTRACT WE HAVE HERE, THE CONTRACTOR'S CLAIM WAS
SUBJECT ONLY TO ADMINISTRATIVE, NOT JUDICIAL, DETERMINATION IN THE
FIRST INSTANCE, WITH THE RIGHT TO RESORT TO THE COURTS ONLY UPON THE
MAKING OF THAT ADMINISTRATIVE DETERMINATION. 

IT IS NOW CRYSTAL CLEAR THAT THE CONTRACTOR MUST SEEK THE RELIEF
PROVIDED FOR UNDER THE CONTRACT OR BE BARRED FROM ANY RELIEF IN THE
COURTS.  IN UNITED STATES V. HOLPUCH CO., 328 U.S. 234, THE QUESTION
WAS WHETHER A CONTRACTOR'S FAILURE TO EXHAUST THE ADMINISTRATIVE APPEAL
PROVISIONS OF A GOVERNMENT CONSTRUCTION CONTRACT BARS HIM FROM BRINGING
SUIT IN THE COURT OF CLAIMS TO RECOVER DAMAGES.  THE COURT HELD THAT IT
DID.  ACCORDING TO THE COURT, THE DISPUTES CLAUSE: 

"IS A CLEAR, UNAMBIGUOUS PROVISION APPLICABLE AT ALL TIMES AND
BINDING ON ALL PARTIES TO THE CONTRACT.  NO COURT IS JUSTIFIED IN
DISREGARDING ITS LETTER OR SPIRIT  ...  .  IT CREATES A MECHANISM
WHEREBY ADJUSTMENTS MAY BE MADE AND ERRORS CORRECTED ON AN
ADMINISTRATIVE LEVEL, THEREBY PERMITTING THE GOVERNMENT TO MITIGATE OR
AVOID LARGE DAMAGE CLAIMS THAT MIGHT OTHERWISE BE CREATED.  UNITED
STATES V. BLAIR, 321 U.S. 730, 735.  THIS MECHANISM, MOREOVER, IS
EXCLUSIVE IN NATURE.  SOLELY THROUGH ITS OPERATION MAY CLAIMS BE MADE
AND ADJUDICATED AS TO MATTERS ARISING UNDER THE CONTRACT  ...  .  AND
IN THE ABSENCE OF SOME CLEAR EVIDENCE THAT THE APPEAL PROCEDURE IS
INADEQUATE OR UNAVAILABLE, THAT PROCEDURE MUST BE PURSUED AND EXHAUSTED
BEFORE A CONTRACTOR CAN BE HEARD TO COMPLAIN IN A COURT."  328 U.S.
234, 239-240. 

SEE ALSO UNITED STATES V. BLAIR, 321 U.S. 730, AND UNITED STATES V.
CALLAHAN WALKER CO., 317 U.S. 56, 61, WHERE THE DISPUTES CLAUSE
PROCEDURES ARE DESCRIBED AS THE "ONLY AVENUE FOR RELIEF." 

2.  EVEN WHEN THE CONTRACTUAL SCHEME HAS RUN ITS COURSE AND THE
CONTRACTOR IS FREE TO FILE HIS SUIT IN COURT, HE IS NOT ENTITLED TO
DEMAND A DE NOVO DETERMINATION OF HIS CLAIM FOR AN EQUITABLE
ADJUSTMENT.  THE EVIDENCE IN SUPPORT OF HIS CASE MUST HAVE BEEN
PRESENTED ADMINISTRATIVELY AND THE RECORD THERE MADE WILL BE THE RECORD
BEFORE THE REVIEWING COURT.  UNITED STATES V. CARLO BIANCHI & CO., 373
U.S. 709; UNITED STATES V. UTAH CONSTRUCTION CO., 384 U.S. 394.  THE
COURT PERFORMS PRINCIPALLY A REVIEWING FUNCTION.  ONLY IF IT IS ALLEGED
AND PROVED THAT THE ADMINISTRATIVE DETERMINATION WAS ARBITRARY,
CAPRICIOUS, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE MAY THE COURT
REFUSE TO HONOR IT.  THIS MUCH IS CLEAR NOT ONLY FROM THE DISPUTES
CLAUSE ITSELF BUT FROM THE WUNDERLICH ACT.  (FN9)  IN THAT STATUTE,
ENTITLED "AN ACT TO PERMIT REVIEW  ...  ," 68 STAT. 81, CONGRESS
WIDENED THE SCOPE OF JUDICIAL REVIEW BUT AT THE SAME TIME RECOGNIZED
THE FINALITY OF THE ADMINISTRATIVE DECISION ABSENT THE SPECIFIED
GROUNDS FOR SETTING IT ASIDE.  THE FOCUS OF THE COURT ACTION IS THE
VALIDITY OF THE ADMINISTRATIVE DECISION.  UNTIL THAT DECISION IS MADE,
THE CONTRACTOR CANNOT KNOW WHAT CLAIM HE HAS OR ON WHAT GROUNDS
ADMINISTRATIVE ACTION MAY BE VULNERABLE.  IT IS ONLY THEN THAT HIS
CLAIM OR RIGHT TO BRING A CIVIL ACTION AGAINST THE UNITED STATES
MATURES AND, AS THE COURT OF CLAIMS SAID, THAT HE HAS "THE RIGHT TO
DEMAND PAYMENT  ...  THE HALLMARK OF ACCRUAL OF A CLAIM IN THIS
COURT."  177 CT. CL., AT 252, 368 F.2D, AT 859. 

3.  TO HOLD THAT THE SIX-YEAR TIME PERIOD RUNS FROM THE COMPLETION OF
THE CONTRACT, AS THE GOVERNMENT INSISTS, WOULD HAVE UNFORTUNATE
IMPACT.  THE CONTRACTOR IS COMPELLED TO RESORT TO ADMINISTRATIVE
PROCEEDINGS WHICH MAY BE PROTRACTED AND WHICH MAY LAST NOT ONLY BEYOND
THE COMPLETION OF THE CONTRACT BUT CONTINUE FOR MORE THAN SIX YEARS
THEREAFTER.  IF THE TIME BAR STARTS RUNNING FROM THE COMPLETION DATE,
THE CONTRACTOR COULD THUS BE BARRED FROM THE COURTS BY THE TIME HIS
ADMINISTRATIVE APPEAL IS FINALLY DECIDED.  THIS WOULD BE TRUE WHETHER
HE WINS OR LOSES BEFORE THE BOARD OF APPEALS.  EVEN IF HE PREVAILED
THERE AND WAS GRANTED THE EQUITABLE ADJUSTMENT HE SOUGHT, THE
GOVERNMENT WOULD BE IMMUNE FROM SUIT TO ENFORCE THE AWARD IF MORE THAN
SIX YEARS HAD PASSED SINCE THE COMPLETION OF THE CONTRACT.  THIS IS NOT
AN APPEALING RESULT, NOR, IN OUR VIEW, ONE THAT CONGRESS INTENDED.  THE
WUNDERLICH ACT EVIDENCES A CONGRESSIONAL PURPOSE TO INSURE ADEQUATE
JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS ON CLAIMS ARISING UNDER
GOVERNMENT CONTRACTS; IT IS VERY DOUBTFUL THAT IT ANTICIPATED NO REVIEW
AT ALL IF ADMINISTRATIVE PROCEEDINGS, COMPULSORY ON THE CONTRACTOR,
CONTINUED FOR MORE THAN SIX YEARS BEYOND THE CONTRACT'S COMPLETION
DATE.  (FN10)    THE GOVERNMENT SUGGESTS THAT THE CONTRACTOR MAY EASILY
AVOID SUCH UNTOWARD RESULTS BY THE TIMELY FILING OF A PROTECTIVE SUIT
WHICH COULD REMAIN INACTIVE PENDING THE CONCLUSION OF ADMINISTRATIVE
PROCEEDINGS.  BUT THE CONTRACTOR IS NOT LEGALLY ENTITLED TO ASK THE
COURTS TO ADJUDICATE HIS CLAIM AS AN ORIGINAL MATTER.  NOR CAN HE
SENSIBLY ASK THE COURTS TO REVIEW A DECISION WHICH HAS NOT YET BEEN
MADE.  HE CANNOT, WITH HONESTY, MAKE THE NECESSARY ALLEGATIONS TO
SUPPORT AN ACTION FOR REVIEW UNTIL THE ADMINISTRATIVE PROCESS IS
COMPLETED AND THE AGENCY DECISION KNOWN.  SINCE IT WOULD REMAIN
QUIESCENT UNTIL THE ADMINISTRATIVE DECISION IS RENDERED, THE PROTECTIVE
SUIT WOULD BE A SHEER FORMALITY IN ANY EVENT - A PROCEDURAL TRAP FOR
THE UNWARY AND AN ADDITIONAL COMPLICATION FOR THOSE WHO MANAGE THE
DOCKETS OF THE COURTS.  CERTAINLY IT WOULD BE NO HELP TO THOSE
CONTRACTORS FOR WHOM IT IS ALREADY TOO LATE TO FILE SUCH A SUIT, WHICH
IS TRUE OF THE PETITIONER IN THIS CASE.  (FN11) 

4.  THE GOVERNMENT CHALLENGES WHAT THE COURT OF CLAIMS IN NAGER
ELECTRIC CONSIDERED TO BE THE LONG-STANDING RULE FOUND IN ITS OWN PAST
CASES.  IT ASSERTS THAT MANY OF THE CASES FROM WHICH THE PURPORTED RULE
WAS SIFTED DO NOT INVOLVE THE STANDARD DISPUTES CLAUSE AND THOSE THAT
DO STATE THE RULE BY WAY OF DICTUM ONLY.  BUT WE THINK THE COURT OF
CLAIMS FAIRLY REFLECTED THE THRUST AND TENOR OF ITS PRIOR OPINIONS. 
(FN12)  AT LEAST, BASED ON THOSE CASES, THE ORDINARY CONTRACTOR WOULD
HAVE BEEN WHOLLY JUSTIFIED IN CONCLUDING THAT HE HAD SIX YEARS FROM THE
CONCLUSION OF ADMINISTRATIVE PROCEEDINGS TO FILE HIS SUIT.  NOR, ASIDE
FROM THE DECISION IN THIS CASE, HAVE WE BEEN CITED TO ANY COURT OF
APPEALS DECISIONS IN TUCKER ACT (24 STAT. 505) CASES, WHICH ARE
CONTRARY TO THE RULE FOLLOWED BY THE COURT OF CLAIMS. 

5.  THIS BRINGS US TO THE CASES IN THIS COURT UPON WHICH THE
GOVERNMENT AND THE COURT OF APPEALS HAVE RELIED:  MCMAHON V. UNITED
STATES, 342 U.S. 25; SORIANO V. UNITED STATES, 352 U.S. 270; AND
UNEXCELLED CHEMICAL CORP. V. UNITED STATES, 345 U.S. 59.  NONE OF THEM
WAS A TUCKER ACT SUIT INVOLVING A DISPUTES CLAUSE CLAIM.  MCMAHON WAS
AN ACTION BROUGHT BY AN INJURED SEAMAN AGAINST THE UNITED STATES FOR
NEGLIGENCE AND UNSEAWORTHINESS.  THE SUITS IN ADMIRALTY ACT REQUIRES
ACTIONS TO BE BROUGHT WITHIN TWO YEARS AFTER "THE CAUSE OF ACTION
ARISES."  THE CLARIFICATION ACT, 57 STAT. 45, 50 U.S.C. APP. SEC.
1291(A), WHICH BROUGHT SUCH A SEAMAN'S SUIT WITHIN THE AMBIT OF THE
SUITS IN ADMIRALTY ACT, PERMITS COURT ACTION ONLY IF THE CLAIM HAS BEEN
ADMINISTRATIVELY DISALLOWED, BUT SETS NO TIME WITHIN WHICH A CLAIM MUST
BE PRESENTED TO THE ADMINISTRATIVE BODY.  THE COURT HELD THAT THE
LIMITATIONS PERIOD RAN FROM THE TIME OF THE INJURY, NOT FROM THE DATE
OF THE DISALLOWANCE OF THE CLAIM.  THE COURT SAW NO INDICATIONS THAT
CONGRESS IN PASSING THE CLARIFICATION ACT INTENDED TO POSTPONE THE
USUAL TIME OF ACCRUAL OF THE CAUSE OF ACTION UNTIL THE DATE OF
DISALLOWANCE, SINCE THIS WOULD PERMIT THE CLAIMANT TO POSTPONE
INDEFINITELY THE COMMENCEMENT OF THE RUNNING OF THE STATUTORY PERIOD. 

THE COURT HAS POINTED OUT BEFORE, HOWEVER, THE HAZARDS INHERENT IN
ATTEMPTING TO DEFINE FOR ALL PURPOSES WHEN A "CAUSE OF ACTION" FIRST
"ACCRUES."  SUCH WORDS ARE TO BE "INTERPRETED IN THE LIGHT OF THE
GENERAL PURPOSES OF THE STATUTE AND OF ITS OTHER PROVISIONS, AND WITH
DUE REGARD TO THOSE PRACTICAL ENDS WHICH ARE TO BE SERVED BY ANY
LIMITATION OF THE TIME WITHIN WHICH AN ACTION MUST BE BROUGHT." 
READING CO. V. KOONS, 271 U.S. 58, 62; SEE ALSO UNITED STATES V.
DICKINSON, 331 U.S. 745, 748.  CASES UNDER THE SUITS IN ADMIRALTY ACT
DO NOT NECESSARILY RULE TUCKER ACT CLAIMS.  THE PURPOSE OF THE
CLARIFICATION ACT WAS TO PREVENT UNNECESSARY LITIGATION BY PROVIDING
FOR NOTICE OF INJURY TO THE UNITED STATES AND FOR THE OPPORTUNITY TO
SETTLE CLAIMS ADMINISTRATIVELY.  BUT WHILE SUIT WAS PERMITTED ONLY IF A
CLAIM HAD BEEN "DISALLOWED," THE APPLICABLE REGULATIONS PROVIDED THAT
IF A CLAIM WAS NOT REJECTED WITHIN 60 DAYS AFTER FILING, IT WOULD BE
DEEMED TO HAVE BEEN ADMINISTRATIVELY DISALLOWED AND THE CLAIMANT WOULD
BE FREE TO ENFORCE HIS CLAIM.  THERE WAS NO CHANCE FOR ADMINISTRATIVE
ACTION TO CONSUME THE ENTIRE LIMITATIONS PERIOD AND THEREFORE BAR ALL
RESORT TO THE COURTS. 

IN DISPUTES CLAUSE CASES, HOWEVER, FINAL ADMINISTRATIVE ACTION, WHICH
THE CLAIMANT MUST AWAIT, MAY OCCUR MORE THAN SIX YEARS AFTER THE
COMPLETION OF THE CONTRACT.  WHEN IT DOES, THE CLAIMANT WOULD BE TIME
BARRED IF THE SIX-YEAR PERIOD IS MEASURED FROM THE DATE OF FINAL
PERFORMANCE.  NOR DOES THE CLAIMANT IN CASES LIKE THE ONE BEFORE US
HAVE UNLIMITED DISCRETION AS TO WHEN TO FILE HIS CLAIM.  THE STANDARD
CHANGES CLAUSE  (FN13)  REQUIRES HIM TO PRESENT HIS CLAIM WITHIN 30
DAYS AND MOST OTHER CLAUSES IN GOVERNMENT CONTRACTS CALLING FOR AN
EQUITABLE ADJUSTMENT ALSO CONTAIN THEIR OWN TIME LIMITATIONS.  WHERE
THIS IS NOT TRUE, THE CONTRACTOR CANNOT DELAY UNREASONABLY IN
PRESENTING HIS CLAIM.  THIS IS THE RULE THE COURT OF CLAIMS FOLLOWS. 
SEE NAGER ELECTRIC, SUPRA, 177 CT. CL., AT 259, 368 F.2D, AT 864. 

NOR DO SORIANO OR UNEXCELLED CONTROL THIS CASE.  IN SORIANO THE SIX
YEAR TIME BAR WAS HELD TO RUN FROM THE DATE OF THE REQUISITIONING OF
FOODSTUFFS AND EQUIPMENT BY PHILIPPINE GUERRILLA FORCES AND NOT FROM
THE DATE OF THE DISALLOWANCE OF A CLAIM FILED WITH THE ARMY CLAIMS
SERVICE.  THE MAJORITY IN THAT CASE EXPRESSLY HELD THAT THE
ADMINISTRATIVE ACTION WAS NOT A PREREQUISITE TO SUIT IN THE COURT OF
CLAIMS.  LIKEWISE, IN UNEXCELLED, WHERE THE STATUTORY PERIOD WAS HELD
TO RUN FROM THE DATE OF THE BREACH OF STATUTORY DUTY UNDER THE WALSH
HEALEY ACT (49 STAT. 2036), RATHER THAN FROM THE DATE OF THE
ADMINISTRATIVE DETERMINATION OF THE LIQUIDATED DAMAGES DUE THE
GOVERNMENT, IT SEEMS APPARENT THAT THE UNITED STATES, TO WHICH DAMAGES
WERE PAYABLE, COULD HAVE BROUGHT SUIT WITHOUT FIRST RESORTING TO
ADMINISTRATIVE REMEDIES. 

6.  FINALLY, THE GOVERNMENT RELIES ON PUBLIC LAW 89-505, 80 STAT. 304,
28 U.S.C. SEC 2415 (1964 ED., SUPP. II), ENACTED ON JULY 18, 1966,
WHICH FOR THE FIRST TIME ESTABLISHED A GENERAL STATUTE OF LIMITATIONS
ON GOVERNMENT TORT CLAIMS AND ON SUITS BY THE GOVERNMENT FOR MONEY
DAMAGES FOUNDED ON ANY CONTRACT, EXPRESS OR IMPLIED.  SUCH SUITS MUST
NOW BE BROUGHT WITHIN "SIX YEARS AFTER THE RIGHT OF ACTION ACCRUES OR
WITHIN ONE YEAR AFTER FINAL DECISIONS HAVE BEEN RENDERED IN APPLICABLE
ADMINISTRATIVE PROCEEDINGS REQUIRED BY CONTRACT OR BY LAW."  AS AN
EXAMPLE OF SUCH ADMINISTRATIVE PROCEEDINGS, THE RELEVANT COMMITTEE
REPORTS AND HEARINGS MENTIONED THE ADMINISTRATIVE PROCEEDINGS REQUIRED
UNDER THE STANDARD DISPUTES CLAUSE CONTAINED IN GOVERNMENT CONTRACTS. 
H.R. REP. NO. 1534, 89TH CONG., 2D SESS., AT 4; S. REP. NO. 1328, 89TH
CONG., 2D SESS., AT 3; HEARING ON H.R. 13652 BEFORE SUBCOMMITTEE NO. 2
OF THE HOUSE COMMITTEE ON THE JUDICIARY, 89TH CONG., 2D SESS., 7
(1966).  BASED ON THIS NEW PROVISION, THE GOVERNMENT ARGUES THAT
CONGRESS NECESSARILY ASSUMED THAT THE RIGHT OF ACTION OF THE UNITED
STATES IN DISPUTES CLAUSE SITUATIONS FIRST ACCRUES AND THE LIMITATIONS
PERIOD BEGINS TO RUN PRIOR TO THE COMPLETION OF ADMINISTRATIVE
PROCEEDINGS.  OTHERWISE THERE WOULD HAVE BEEN NO NEED FOR THE ONE-YEAR
PERIOD FOLLOWING FINAL ADMINISTRATIVE DECISION IN ORDER TO SAVE ACTIONS
WHICH MIGHT OTHERWISE BE BARRED BY THE SIX-YEAR LIMITATION.  WHAT THIS
AMOUNTS TO, THE GOVERNMENT SAYS, IS A CONGRESSIONAL CONSTRUCTION OF THE
SIMILAR "FIRST ACCRUAL" LANGUAGE OF THE OLDER LIMITATIONS ON PRIVATE
ACTIONS CONTAINED IN SEC. 2401(A) AND SEC 2501.  LIKEWISE, IT ARGUES,
THIS CONSTRUCTION PRECLUDES HOLDINGS SUCH AS THAT OF THE THIRD CIRCUIT
IN NORTHERN METAL CO. V. UNITED STATES, 350 F.2D 833, TO THE EFFECT
THAT THE STATUTE IS TOLLED DURING THE PENDENCY OF ADMINISTRATIVE
PROCEEDINGS. 

THIS ARGUMENT IS NOT WITHOUT FORCE.  THERE IS NO QUESTION OF THE
POWER OF CONGRESS TO DEFINE THE LIMITS OF ITS WAIVER OF SOVEREIGN
IMMUNITY.  BUT WE ARE NOT CONVINCED THAT CONGRESS INTENDED TO ISSUE ANY
DETERMINATIVE CONSTRUCTION OF SEC 2401 IN FORMULATING AND PASSING SEC
2415.  NEITHER IN THE HEARING ON H.R. 13652 NOR IN THE COMMITTEE
REPORTS DID CONGRESS FOCUS ON THE FIRST ACCRUAL LANGUAGE OF SEC 2401,
ON THE EXISTING CONSTRUCTION OF THAT LANGUAGE BY THE COURT OF CLAIMS OR
ANY OTHER COURT OR ON THE SITUATION OF THE GOVERNMENT CONTRACTOR
DESIRING TO SUE THE UNITED STATES DURING OR AFTER THE CONCLUSION OF
ADMINISTRATIVE PROCEEDINGS UNDER THE DISPUTES CLAUSE.  THE BILL WAS
RECOMMENDED TO THE CONGRESS BY THE DEPARTMENT OF JUSTICE AT THE TIME
THE DEPARTMENT WAS LITIGATING NAGER ELECTRIC IN THE COURT OF CLAIMS IN
WHICH THE DEPARTMENT ULTIMATELY TOOK THE POSITION THAT THE PRIVATE
CONTRACTOR'S RIGHT OF ACTION FIRST ACCRUES NO LATER THAN THE COMPLETION
OF THE CONTRACT.  THIS POSITION WAS REJECTED BY THE COURT OF CLAIMS, IN
FAVOR OF WHAT IS CONSIDERED TO BE ITS EXISTING RULE - THAT THE PRIVATE
CONTRACTOR'S RIGHT TO SUE ON A DISPUTES CLAUSE CLAIM FIRST ACCRUES WITH
THE TERMINATION OF ADMINISTRATIVE PROCEEDINGS.  GIVEN THE WUNDERLICH
ACT, AND THE PRIOR LITIGATIVE HISTORY OF DISPUTES CLAUSE ISSUES IN THIS
COURT AND IN THE COURT OF CLAIMS, WE ARE DOUBTFUL THAT CONGRESS
INTENDED TO BAR A PRIVATE CONTRACTOR'S SUIT ON A DISPUTES CLAUSE CLAIM
WHERE ADMINISTRATIVE PROCEEDINGS CONTINUE FOR MORE THAN SIX YEARS AFTER
THE COMPLETION OF THE CONTRACT.  CONGRESS UNDERSTOOD WHAT THE IMPACT OF
SUCH A RULE WOULD BE IF APPLIED TO THE GOVERNMENT AND MADE DUE
ALLOWANCE FOR IT BY ALLOWING THE GOVERNMENT THE ONE-YEAR GRACE PERIOD. 
WE SEE NO INDICATIONS THAT IT HAD IN MIND THE PRIVATE LITIGANT WHOSE
RIGHT TO SUE THE UNITED STATES IS GOVERNED BY SEC 2401.  WE ARE
HESITANT TO BELIEVE THAT IN PASSING A STATUTE AIMED AT EQUALIZING THE
LITIGATIVE OPPORTUNITIES BETWEEN THE GOVERNMENT AND PRIVATE PARTIES
(FN14)  CONGRESS CONSCIOUSLY EXTENDED A ONE-YEAR SAVING PERIOD TO THE
GOVERNMENT TO OVERCOME THE EFFECTS OF PROTRACTED ADMINISTRATIVE
PROCEEDINGS AND REFUSED SIMILAR RELIEF TO THE CONTRACTOR.  AT LEAST WE
ARE SUFFICIENTLY DOUBTFUL THAT WE PREFER TO AWAIT A SOMEWHAT CLEARER
SIGNAL FROM THE CONGRESS. 

WE THEREFORE CONCLUDE THAT IF THE CLAIM FILED BY THE CONTRACTOR IN
THIS CASE WAS A CLAIM "ARISING UNDER" THE CONTRACT AND WAS THEREFORE
SUBJECT TO ADMINISTRATIVE DETERMINATION, (1) ITS RIGHT TO BRING A CIVIL
ACTION FIRST ACCRUED WHEN THE ARMED SERVICES BOARD OF CONTRACT APPEALS
FINALLY RULED ON ITS CLAIM AND (2) ITS SUIT IN THE DISTRICT COURT WAS
TIMELY FILED.  THE GOVERNMENT IN ITS ANSWER TO THE COMPLAINT, HOWEVER,
DENIED THAT THE CLAIM AROSE UNDER THE CONTRACT, CHARACTERIZED IT
INSTEAD AS A PURE BREACH OF CONTRACT CLAIM WHICH ACCRUED NO LATER THAN
THE DATE OF THE COMPLETION OF THE CONTRACT.  THE DISTRICT COURT DID NOT
DECIDE THIS ISSUE; NOR DO WE.  THIS MATTER WILL BE OPEN ON REMAND TO
THE DISTRICT COURT.  IF THE CLAIM IS NOT WITHIN THE DISPUTES CLAUSE,
THE COURT MAY THEN DETERMINE WHETHER IT IS TIME-BARRED.  REVERSED AND
REMANDED. 

FN1  THE DISPUTES CLAUSE CONTAINED IN THE CONTRACT BETWEEN PETITIONER
AND THE GOVERNMENT PROVIDES:

"EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, ANY DISPUTE
CONCERNING A QUESTION OF FACT ARISING UNDER THIS CONTRACT WHICH IS NOT
DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER,
WHO SHALL REDUCE HIS DECISION TO WRITING AND MAIL OR OTHERWISE FURNISH
A COPY THEREOF TO THE CONTRACTOR.  WITHIN 30 DAYS FROM THE DATE OF
RECEIPT OF SUCH COPY, THE CONTRACTOR MAY APPEAL BY MAILING OR OTHERWISE
FURNISHING TO THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE
SECRETARY, AND THE DECISION OF THE SECRETARY OR HIS DULY AUTHORIZED
REPRESENTATIVE FOR THE HEARING OF SUCH APPEALS SHALL, UNLESS DETERMINED
BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN FRAUDULENT,
ARBITRARY, CAPRICIOUS, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY
BAD FAITH, BE FINAL AND CONCLUSIVE; PROVIDED THAT, IF NO SUCH APPEAL IS
TAKEN, THE DECISION OF THE CONTRACTING OFFICER SHALL BE FINAL AND
CONCLUSIVE.  IN CONNECTION WITH ANY APPEAL PROCEEDING UNDER THIS
CLAUSE, THE CONTRACTOR SHALL BE AFFORDED AN OPPORTUNITY TO BE HEARD AND
TO OFFER EVIDENCE IN SUPPORT OF ITS APPEAL.  PENDING FINAL DECISION OF
A DISPUTE HEREUNDER, THE CONTRACTOR SHALL PROCEED DILIGENTLY WITH THE
PERFORMANCE OF THE CONTRACT AND IN ACCORDANCE WITH THE CONTRACTING
OFFICER'S DECISION." 

FOR THE DISPUTES CLAUSE PRESENTLY IN USE, SEE 32 CFR SEC. 597.103
12. 

FN2  CLAIMS NOT ARISING UNDER THOSE OTHER CLAUSES OF THE CONTRACT
CALLING FOR EQUITABLE ADJUSTMENT AND THEREFORE NOT WITHIN THE DISPUTES
CLAUSE WILL SOMETIMES BE REFERRED TO HEREIN AS "BREACH" CLAIMS.  SEE
UNITED STATES V. UTAH CONSTRUCTION CO., 384 U.S. 394, 403-418. 

FN3  THE RECORD IN THIS CASE CONTAINS ONLY EXCERPTS FROM THE CHANGES
CLAUSE OF THE CONTRACT AT ISSUE HERE.  THE STANDARDIZED VERSION OF THE
CHANGES CLAUSE FOR FIXED-PRICE SUPPLY CONTRACTS PROVIDES, IN ITS
ENTIRETY, THAT: 

"THE CONTRACTING OFFICER MAY AT ANY TIME, BY A WRITTEN ORDER, AND
WITHOUT NOTICE TO THE SURETIES, MAKE CHANGES, WITHIN THE GENERAL SCOPE
OF THIS CONTRACT, IN ANY ONE OR MORE OF THE FOLLOWING:  (I) DRAWINGS,
DESIGNS, OR SPECIFICATIONS, WHERE THE SUPPLIES TO BE FURNISHED ARE TO
BE SPECIALLY MANUFACTURED FOR THE GOVERNMENT IN ACCORDANCE THEREWITH;
(II) METHOD OF SHIPMENT OR PACKING; AND (III) PLACE OF DELIVERY.  IF
ANY SUCH CHANGE CAUSES AN INCREASE OR DECREASE IN THE COST OF, OR THE
TIME REQUIRED FOR THE PERFORMANCE OF ANY PART OF THE WORK UNDER THIS
CONTRACT, WHETHER CHANGED OR NOT CHANGED BY ANY SUCH ORDER, AN
EQUITABLE ADJUSTMENT SHALL BE MADE IN THE CONTRACT PRICE OR DELIVERY
SCHEDULE, OR BOTH, AND THE CONTRACT SHALL BE MODIFIED IN WRITING
ACCORDINGLY.  ANY CLAIM BY THE CONTRACTOR FOR ADJUSTMENT UNDER THIS
CLAUSE MUST BE ASSERTED WITHIN 30 DAYS FROM THE DATE OF RECEIPT BY THE
CONTRACTOR OF THE NOTIFICATION OF CHANGE, PROVIDED, HOWEVER, THAT THE
CONTRACTING OFFICER, IF HE DECIDES THAT THE FACTS JUSTIFY SUCH ACTION,
MAY RECEIVE AND ACT UPON ANY SUCH CLAIM ASSERTED AT ANY TIME PRIOR TO
FINAL PAYMENT UNDER THIS CONTRACT.  WHERE THE COST OF PROPERTY MADE
OBSOLETE OR EXCESS AS RESULT OF A CHANGE IS INCLUDED IN THE
CONTRACTOR'S CLAIM FOR ADJUSTMENT, THE CONTRACTING OFFICER SHALL HAVE
THE RIGHT TO PRESCRIBE THE MANNER OF DISPOSITION OF SUCH PROPERTY. 
FAILURE TO AGREE TO ANY ADJUSTMENT SHALL BE A DISPUTE CONCERNING A
QUESTION OF FACT WITHIN THE MEANING OF THE CLAUSE OF THIS CONTRACT
ENTITLED 'DISPUTES.'  HOWEVER, NOTHING IN THIS CLAUSE SHALL EXCUSE THE
CONTRACTOR FROM PROCEEDING WITH THE CONTRACT AS CHANGED."  32 CFR SEC
7.103-2.    THE EXCERPTED VERSION OF THE CHANGES CLAUSE IN THIS CASE
APPEARS IN THE UNREPORTED OPINION OF THE DISTRICT COURT, AND IT SEEMS
SUBSTANTIALLY IDENTICAL TO THE FULL CLAUSE QUOTED ABOVE. 

FN4  SECTION 1346 IN RELEVANT PART PROVIDES THAT THE DISTRICT COURTS
SHALL HAVE ORIGINAL JURISDICTION, CONCURRENT WITH THE COURT OF CLAIMS,
OF "  ...  (2) ANY OTHER CIVIL ACTION OR CLAIM AGAINST THE UNITED
STATES, NOT EXCEEDING $10,000 IN AMOUNT, FOUNDED  ...  UPON ANY EXPRESS
OR IMPLIED CONTRACT WITH THE UNITED STATES  ...  ." 

FN5  SECTION 2501 PROVIDES AS FOLLOWS:  "EVERY CLAIM OF WHICH THE
COURT OF CLAIMS HAS JURISDICTION SHALL BE BARRED UNLESS THE PETITION
THEREON IS FILED WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES." 

FN6  WHERE THE ADMINISTRATIVE PROCEEDINGS HAVE NOT EXTENDED BEYOND
THE DATE OF COMPLETION OF THE CONTRACT, THE COURT OF CLAIMS' RULE HAS
BEEN THAT "THE CLAIM ACCRUES, AND THE STATUTORY PERIOD COMMENCES, AT
THE TIME OF COMPLETION OR ACCEPTANCE (IF THE LATTER IS CONTEMPLATED)." 
177 CT. CL. 234, 242, 368 F.2D 847, 853. 

FN7  THE COURT OF CLAIMS SUMMARIZED ITS PRIOR RULINGS WITH RESPECT TO
CO-EXISTING BREACH AND DISPUTES CLAUSE CLAIMS AS FOLLOWS: 

"READING THEM ALL TOGETHER, THESE OPINIONS SHOW, WE THINK, THAT WHERE
A CONTRACTOR HAS BOTH 'DISPUTES-CLAUSE' ITEMS AND 'BREACH-TYPE' CLAIMS
UNDER A SINGLE CONTRACT, THE FOLLOWING STANDARDS HAVE CONTROLLED IN
THIS COURT:  (I) THERE SHOULD BE ONLY ONE SUIT TO ENFORCE THE VARIOUS
CLAIM-ITEMS; (II) THE CONTRACTOR CAN BRING SUIT ON THE RIPENED 'BREACH
TYPE' ITEMS BEFORE COMPLETION OF THE ADMINISTRATIVE PROCESS ON THE
'DISPUTES-CLAUSE' ITEMS, BUT IF HE DOES SO HE MAY WELL LOSE THE LATTER
CLAIMS UNLESS HE INCLUDES THEM (BY PROPER AMENDMENT, IF NECESSARY, AS
THEY MATURE) IN HIS COURT ACTION; BUT (III) THE CONTRACTOR NEED NOT
FILE SUIT ON THE 'BREACH-TYPE' ITEMS UNTIL AFTER THE END OF THE
ADMINISTRATIVE PROCESS, WHEN ALL THE ITEMS HAVE RIPENED AND CAN BE
INCLUDED IN THE ONE PETITION.  IN SUM, OUR FULE HAS BEEN THAT THE TIME
BAR WILL NOT FALL UNTIL SIX YEARS AFTER THE ADMINISTRATIVE
DETERMINATION, BUT SUIT CAN BE FILED EARLIER, WITH THE PLAINTIFF TAKING
THE RISK THAT HE MAY THEREBY SPLIT HIS CAUSE OF ACTION."  177 CT. CL.,
AT 248-249, 368 F.2D, AT 857. 

FN8  WE DO NOT HAVE A SITUATION HERE WHERE THE UNITED STATES REFUSES
TO PROCESS THE CLAIM IN ACCORDANCE WITH ITS AGREEMENT OR OTHERWISE
DEPARTS FROM THE AGREED-UPON SCHEME FOR SETTLING DISPUTED ISSUES WITHIN
THE DISPUTES CLAUSE. 

FN9  41 U.S.C. SECS 321 AND 322 PROVIDE AS FOLLOWS: 

"SEC 321.  LIMITATION ON PLEADING CONTRACT-PROVISIONS RELATING TO
FINALITY; STANDARDS OF REVIEW. 

"NO PROVISION OF ANY CONTRACT ENTERED INTO BY THE UNITED STATES,
RELATING TO THE FINALITY OR CONCLUSIVENESS OF ANY DECISION OF THE HEAD
OF ANY DEPARTMENT OR AGENCY OR HIS DULY AUTHORIZED REPRESENTATIVE OR
BOARD IN A DISPUTE INVOLVING A QUESTION ARISING UNDER SUCH CONTRACT,
SHALL BE PLEADED IN ANY SUIT NOW FILED OR TO BE FILED AS LIMITING
JUDICIAL REVIEW OF ANY SUCH DECISION TO CASES WHERE FRAUD BY SUCH
OFFICIAL OR HIS SAID REPRESENTATIVE OR BOARD IS ALLEGED:  PROVIDED,
HOWEVER, THAT ANY SUCH DECISION SHALL BE FINAL AND CONCLUSIVE UNLESS
THE SAME IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY
ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE. 

"SEC 322.  CONTRACT-PROVISIONS MAKING DECISIONS FINAL ON QUESTIONS OF
LAW. 

"NO GOVERNMENT CONTRACT SHALL CONTAIN A PROVISION MAKING FINAL ON A
QUESTION OF LAW THE DECISION OF ANY ADMINISTRATIVE OFFICIAL,
REPRESENTATIVE, OR BOARD." 

FN10  THE COMMITTEE REPORT ON THE WUNDERLICH ACT DISAFFIRMS ANY
INTENTION TO CONFER ANY NEW RIGHTS ON THE CONTRACTOR OTHER THAN THE
WIDENED SCOPE OF REVIEW AND REFERS SPECIFICALLY TO THE SIX-YEAR STATUTE
OF LIMITATIONS BARRING STALE SUITS AGAINST THE GOVERNMENT.  BUT THE
REPORT DOES NOT SUGGEST WHEN THE LIMITATIONS PERIOD BEGINS TO RUN OR
PURPORT TO ALTER OR TO DISAGREE WITH THE THEN-EXTANT JUDICIAL
CONSTRUCTIONS OF EITHER SEC 2401 OR SEC 2501 BY THE COURT OF CLAIMS OR
BY ANY OTHER COURT.  SEE.  H.R. REP. NO. 1380, 83D CONG., 2D SESS. 

FN11  WE SHOULD IN THIS RESPECT HEED THE WORDS OF THE COURT OF
CLAIMS: 

"THE UNITED STATES HAS KNOWN FOR DECADES THAT CONTRACT SUITS WILL BE
TIMELY IN THIS COURT IF THEY ARE FILED WITHIN SIX YEARS AFTER THE
ADMINISTRATIVE DETERMINATION, AND HAS PROBABLY ACTED ON THAT ASSUMPTION
IN KEEPING RECORDS AND RETAINING EVIDENCE.  ON THE OTHER HAND, TO SAY
ABRUPTLY AT THIS MOMENT THAT LIMITATION RUNS FROM THE CONTRACT'S
COMPLETION, REGARDLESS OF SUBSEQUENT MANDATORY ADMINISTRATIVE
PROCEEDINGS, WOULD UNDOUBTEDLY CUT OFF SCORES OF CONTRACTORS WHO,
RELYING ON OUR PAST DECISIONS, HAVE WAITED TO BRING SUIT UNTIL THE
ENDING OF THE ADMINISTRATIVE PROCESS.  THERE IS NO ADEQUATE REASON TO
DISRUPT THESE JUSTIFIED EXPECTATIONS."  177 CT. CL., AT 253-254, 368
F.2D, AT 860. 

FN12  THE CASES CITED BY THE COURT OF CLAIMS ARE THE FOLLOWING: 

ELECTRIC BOAT CO. V. UNITED STATES, 81 CT. CL. 361, 367-368, CERT.
DENIED, 297 U.S. 710; AUSTIN ENG'R CO. V. UNITED STATES, 88 CT. CL.
559, 562-564; HOLTON, SEELYE & CO. V. UNITED STATES, 106 CT. CL. 477,
501, 65 F. SUPP. 903, 907; GRIFFIN V. UNITED STATES, 110 CT. CL.  330,
372-373, 77 F. SUPP. 197, 206, REV'D ON OTHER GROUNDS, SUB NOM.  UNITED
STATES V. JONES, 336 U.S. 641; ART CENTER SCHOOL V. UNITED STATES, 136
CT. CL. 218, 226, 142 F. SUPP.  916, 921; EMPIRE INSTITUTE OF
TAILORING, INC. V. UNITED STATES, 142 CT. CL. 165, 168, 161 F. SUPP.
409, 411; INTERNATIONAL POTATO CORP. V. UNITED STATES, 142 CT. CL. 604,
606-607, 161 F. SUPP. 602, 604-605; CLIFTON PRODUCTS, INC. V. UNITED
STATES, 144 CT. CL. 806, 809, 169 F. SUPP. 511, 512-513; COSMOPOLITAN
MFG. CO. V. UNITED STATES, 156 CT. CL. 142, 144, 297 F.2D 546, 547,
CERT. DENIED SUB NOM.  ARLENE COATS V. UNITED STATES, 371 U.S. 818;
STEEL IMPROVEMENT & FORGE CO. V. UNITED STATES, 174 CT. CL. 24, 29-30,
355 F.2D 627, 631. 

THE COURT OF CLAIMS ALSO DEALT WITH AKTIEBOLAGET BOFORS V. UNITED
STATES, 139 CT. CL.  642, 644, 153 F. SUPP. 397, 399, A CASE CONTAINING
STATEMENTS SEEMINGLY CONTRARY TO THOSE FOUND IN THE ABOVE CASES. 

FN13  THE COURT OF CLAIMS DEALT WITH THE MATTER AS FOLLOWS: 

"SIMILARLY, THE CONTRACTOR IN THE CASES BEFORE US (AND THE MASS OF
SUCH CASES) IS NOT LEFT AT LARGE TO PRESENT HIS CLAIM ADMINISTRATIVELY
WHENEVER HE LIKES.  THE DISPUTES CLAUSE DOES NOT ITSELF FIX A TIME
WITHIN WHICH A DISPUTED ISSUE OF FACT MUST BE PRESENTED TO THE
CONTRACTING OFFICER, BUT THAT IS NOT ORDINARILY TRUE OF THE VARIOUS
SUBSTANTIVE CONTRACTUAL CLAUSES WHICH LEAD TO EQUITABLE ADJUSTMENTS OR
COMPARABLE RELIEF UNDER THE CONTRACT.  THOSE SPECIFIC CLAUSES USUALLY
HAVE BUILT-IN TIME LIMITS, AND WHERE NO SPECIFIC PERIOD IS ESTABLISHED
IN THE CONTRACT THE CONTRACTOR CANNOT DELAY UNREASONABLY.  CF. DAWNIC
STEAMSHIP CORP. V. UNITED STATES, 90 CT. CL. 537, 579 (1940).  NEITHER
THIS COURT NOR THE ADMINISTRATIVE TRIBUNALS HAVE HAD ANY GREAT
DIFFICULTY IN HANDLING BELATED CLAIMS BY CONTRACTORS UNDER THE VARIOUS
CONTRACT-ADJUSTMENT ARTICLES.  CONTRACTORS HAVE NOT BEEN ABLE TO EXTEND
THE LIMITATIONS PERIOD UNDULY BY UNILATERALLY POSTPONING THE
COMMENCEMENT OF THE ADMINISTRATIVE PROCESS."  177 CT. CL., AT 259-260,
368 F.2D, AT 864. 

THE COURT ALSO NOTED THAT: 

"THE STANDARD CHANGES CLAUSE IN CONSTRUCTION CONTRACTS PROVIDES THAT
CLAIMS FOR ADJUSTMENT MUST BE ASSERTED WITHIN 10 DAYS; THE CHANGED
CONDITIONS CLAUSE CALLS FOR AN IMMEDIATE NOTIFICATION TO THE
CONTRACTING OFFICER; THE DELAYS-DAMAGES CLAUSE CONTEMPLATES A NOTICE
WITHIN 10 DAYS OF EXCUSABLE DELAYS; THE PRICE ADJUSTMENT FOR
SUSPENSION, DELAYS, OR INTERRUPTION OF WORK CLAUSE SETS 20 DAYS AS THE
NORMAL PERIOD.  SEE UNITED STATES V. UTAH CONSTR.  & MINING CO., 384
U.S. 394, 397-399 N. 1, 416 N. 14, 86 S. CT. 1545, 16 L. ED.  2D 642
(1966)."  ID., AT 259, N. 29, 368 F.2D, AT 864, N. 29. 

THE 30-DAY PERIOD WITHIN WHICH A FIXED-PRICE SUPPLY CONTRACTOR MUST
ASSERT HIS CLAIM FOR EQUITABLE ADJUSTMENT ARISING FROM CHANGES, SEE
TEXT ABOVE AND SUPRA, N. 3, MAY BE SHORTENED IN ACCORDANCE WITH
DEPARTMENT PROCEDURE, 32 CFR SEC 7.103-2, OR WITH NEGOTIATIONS, 32 CFR
SEC 597.103-2. 

FN14  THE CONGRESSIONAL INTENT TO "PUT THE GOVERNMENT ON A PARITY
WITH THOSE PRIVATE LITIGANTS WHO MAY SUE" AND "TO EQUALIZE THE POSITION
OF LITIGANTS" IS SUFFICIENTLY EVIDENT.  SEE HEARING ON H.R. 13652
BEFORE SUBCOMMITTEE NO. 2 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 89TH
CONG., 2D SESS., 9, 11 (1966); H.R. REP. NO. 1534, 89TH CONG., 2D
SESS., AT 4; S. REP. NO. 1328, 89TH CONG., 2D SESS., AT 2.  WHETHER
CONGRESS SUCCEEDED IN ESTABLISHING EXACT EQUALITY BETWEEN CONTRACTORS
AND THE GOVERNMENT IS OF COURSE ANOTHER QUESTION.  IN THIS REGARD, IT
IS INTERESTING TO NOTE THAT IN ADDITION TO THE ONE YEAR FOLLOWING THE
TERMINATION OF ADMINISTRATIVE PROCEEDINGS IN WHICH THE GOVERNMENT CAN
INSTITUTE A SUIT UNDER SEC 2415, SUBSECTION (E) OF THAT PROVISION
PROVIDES THAT: 

"IN THE EVENT THAT ANY ACTION TO WHICH THIS SECTION APPLIES IS TIMELY
BROUGHT AND IS THEREAFTER DISMISSED WITHOUT PREJUDICE, THE ACTION MAY
BE RECOMMENCED WITHIN ONE YEAR AFTER SUCH DISMISSAL, REGARDLESS OF
WHETHER THE ACTION WOULD OTHERWISE THEN BE BARRED BY THIS SECTION.  IN
ANY ACTION SO RECOMMENCED THE DEFENDANT SHALL NOT BE BARRED FROM
INTERPOSING ANY CLAIM WHICH WOULD NOT HAVE BEEN BARRED IN THE ORIGINAL
ACTION."  28 U.S.C. SEC. 2415(E)(1964 ED., SUPP. II). 
..END :








STATE FARM FIRE & CAS. CO. V. TASHIRE 386 U.S. 523 


NO. 391.  ARGUED FEBRUARY 14-15, 1967.  - DECIDED APRIL 10, 1967.  - 363
F.2D 7, REVERSED AND REMANDED. 


A BUS AND A TRUCK COLLIDED IN CALIFORNIA RESULTING IN A LARGE NUMBER
OF CASUALTIES, INCLUDING MANY CANADIANS AND CITIZENS OF FIVE STATES. 
FOUR VICTIMS BROUGHT SUITS IN CALIFORNIA STATE COURTS FOR DAMAGES
EXCEEDING $1,000,000 AGAINST THE BUS AND TRUCK DRIVERS AND THE TRUCK
OWNER (ALL OREGON CITIZENS), AND THE BUS COMPANY, A CALIFORNIA
CORPORATION.  BEFORE THESE CASES WERE TRIED OR OTHER SUITS BROUGHT,
PETITIONER INSURANCE COMPANY, AN ILLINOIS CORPORATION, BROUGHT THIS
ACTION IN THE NATURE OF INTERPLEADER IN THE FEDERAL DISTRICT COURT IN
OREGON AGAINST THE DRIVERS, THE BUS COMPANY, TRUCK OWNER, AND EACH
PROSPECTIVE CLAIMANT, ASSERTING THAT IT HAD INSURED THE TRUCK DRIVER
AGAINST BODILY INJURY LIABILITY TO THE EXTENT OF $10,000 PER PERSON,
AND $20,000 PER OCCURRENCE.  IT PAID THE LATTER SUM INTO COURT, AND
ASKED THAT ALL CLAIMS AGAINST IT AND THE INSURED BE ESTABLISHED ONLY IN
THIS SINGLE PROCEEDING AND THAT IT BE DISCHARGED FROM ALL FURTHER
OBLIGATIONS UNDER ITS POLICY, INCLUDING ITS DUTY TO DEFEND THE TRUCK
DRIVER IN LAWSUITS ARISING FROM THE ACCIDENT.  ALTERNATIVELY, IT ASKED
TO BE RELIEVED OF ALL LIABILITY ON THE POLICY, CLAIMING THAT THE POLICY
EXCLUDED FROM COVERAGE ACCIDENTS SUCH AS THE ONE INVOLVED HERE
RESULTING FROM THE INSURED'S OPERATION OF A TRUCK OWNED BY AND BEING
USED IN THE BUSINESS OF ANOTHER.  JURISDICTION WAS BASED ON GENERAL
DIVERSITY OF CITIZENSHIP AND 28 U.S.C.  SEC 1335, WHICH, INTER ALIA,
VESTS THE DISTRICT COURTS WITH JURISDICTION IN AN INTERPLEADER ACTION
WHERE A CORPORATION HAS ISSUED AN INSURANCE POLICY IF TWO OR MORE
"ADVERSE CLAIMANTS, OF DIVERSE CITIZENSHIP" CLAIM "OR MAY CLAIM" TO BE
ENTITLED TO MONEY OR THE BENEFITS ARISING UNDER A POLICY AND IF THE
PLAINTIFF HAS PAID THE AMOUNT DUE INTO THE COURT'S REGISTRY.  AN
INJUNCTION WAS ISSUED PROVIDING THAT ALL SUITS AGAINST THE INSURANCE
COMPANY AND ITS INSURED AND (ON THE BUS COMPANY'S MOTION) THE BUS
COMPANY AND ITS DRIVER BE PROSECUTED IN THE INTERPLEADER PROCEEDING. 
ON INTERLOCUTORY APPEAL, THE COURT OF APPEALS REVERSED, HOLDING THAT IN
STATES LIKE OREGON WHICH DO NOT PERMIT "DIRECT ACTION" SUITS AGAINST AN
INSURANCE COMPANY, FEDERAL INTERPLEADER MAY NOT BE INVOKED UNTIL THE
CLAIMS AGAINST THE INSURED HAVE BEEN REDUCED TO JUDGMENT, SINCE PERSONS
WITH UNLIQUIDATED TORT CLAIMS ARE NOT "CLAIMANTS" WITHIN THE MEANING OF
SEC 1335.  HELD: 

1.  THE DIVERSITY REQUIREMENT OF 28 U.S.C. SEC 1335 IS SATISFIED HERE
AND THE FEDERAL COURTS HAVE JURISDICTION SINCE THAT PROVISION REQUIRES
ONLY "MINIMAL DIVERSITY," I.E., DIVERSITY OF CITIZENSHIP BETWEEN TWO OR
MORE CLAIMANTS, WITHOUT REGARD TO THE CIRCUMSTANCE THAT OTHER RIVAL
CLAIMANTS MAY BE CO-CITIZENS, AND "MINIMAL DIVERSITY" IS PERMISSIBLE
UNDER ARTICLE III OF THE CONSTITUTION.  PP. 530-531. 

2.  SECTION 1335 AUTHORIZES INTERPLEADER WHERE ADVERSE CLAIMANTS "MAY
CLAIM" BENEFITS, AND PETITIONER INSURANCE COMPANY NEED NOT WAIT UNTIL
CLAIMANTS AGAINST THE INSURED HAVE REDUCED THEIR CLAIMS TO JUDGMENT
BEFORE SEEKING TO INVOKE THE BENEFITS OF THE INTERPLEADER STATUTE.  PP.
531-533. 

3.  AN INJUNCTION BARRING THE PROSECUTION OF SUITS AGAINST THE
INSURANCE COMPANY AND THE ALLEGED TORTFEASORS OUTSIDE THE CONFINES OF
THE INTERPLEADER PROCEEDING WAS NOT AUTHORIZED BY 28 U.S.C. SEC 2361,
THE SCOPE OF THE LITIGATION BEING VASTLY MORE EXTENSIVE THAN THE
DEPOSITED PROCEEDS OF THE INSURANCE POLICY WHICH CONSTITUTED THE
"FUND."  PP. 533-537. 

(A)  THIS IS NOT A CASE WHERE THE EFFECT OF THE INTERPLEADER IS TO
CONFINE THE LITIGATION TO A SINGLE FORUM AND PROCEEDING AS WHERE RIVAL
CLAIMS ARE LIMITED TO THE FUND ITSELF.  P. 534. 

(B)  THE FORTUITOUS CIRCUMSTANCE THAT ONE OF THE PROSPECTIVE
DEFENDANTS HAPPENS TO BE INSURED SHOULD NOT LIMIT THE OTHER PLAINTIFFS
TO THE FORUM SELECTED BY THE INSURANCE COMPANY.  PP. 534-535. 

(C)  THE INSURANCE COMPANY'S INTEREST, WHICH IS CONFINED TO ITS
$20,000 FUND, IS FULLY VINDICATED WHEN THE COURT RESTRAINS CLAIMANTS
FROM SEEKING TO ENFORCE AGAINST THE INSURANCE COMPANY ANY JUDGMENT
OBTAINED AGAINST THE INSURED EXCEPT IN THE INTERPLEADER PROCEEDING
ITSELF.  THE DISTRICT COURT HAD NO POWER IN THAT PROCEEDING TO CONTROL
CLAIMANTS' LAWSUITS AGAINST THE INSURED OR OTHER ALLEGED TORTFEASORS. 
P. 535. 

(D)  INTERPLEADER WAS NEVER INTENDED TO SERVE AS A "BILL OF PEACE"
AND SOLVE ALL THE PROBLEMS OF MULTIPARTY LITIGATION ARISING OUT OF A
MASS TORT.  PP. 535-536. 

STATE FARM FIRE & CASUALTY CO. ET AL. V. TASHIRE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

EARLY ONE SEPTEMBER MORNING IN 1964, A GREYHOUND BUS PROCEEDING
NORTHWARD THROUGH SHASTA COUNTY, CALIFORNIA, COLLIDED WITH A SOUTHBOUND
PICKUP TRUCK.  TWO OF THE PASSENGERS ABOARD THE BUS WERE KILLED. 
THIRTY-THREE OTHERS WERE INJURED, AS WERE THE BUS DRIVER, THE DRIVER OF
THE TRUCK AND ITS LONE PASSENGER.  ONE OF THE DEAD AND 10 OF THE
INJURED PASSENGERS WERE CANADIANS; THE REST OF THE INDIVIDUALS INVOLVED
WERE CITIZENS OF FIVE AMERICAN STATES.  THE ENSUING LITIGATION LED TO
THE PRESENT CASE, WHICH RAISES IMPORTANT QUESTIONS CONCERNING
ADMINISTRATION OF THE INTERPLEADER REMEDY IN THE FEDERAL COURTS. 

THE LITIGATION BEGAN WHEN FOUR OF THE INJURED PASSENGERS FILED SUIT
IN CALIFORNIA STATE COURTS, SEEKING DAMAGES IN EXCESS OF $1,000,000. 
NAMED AS DEFENDANTS WERE GREYHOUND LINES, INC., A CALIFORNIA
CORPORATION; THERON NAUTA, THE BUS DRIVER; ELLIS CLARK, WHO DROVE THE
TRUCK; AND KENNETH GLASGOW, THE PASSENGER IN THE TRUCK WHO WAS
APPARENTLY ITS OWNER AS WELL.  EACH OF THE INDIVIDUAL DEFENDANTS WAS A
CITIZEN AND RESIDENT OF OREGON.  BEFORE THESE CASES COULD COME TO TRIAL
AND BEFORE OTHER SUITS WERE FILED IN CALIFORNIA OR ELSEWHERE,
PETITIONER STATE FARM FIRE & CASUALTY COMPANY, AN ILLINOIS CORPORATION,
BROUGHT THIS ACTION IN THE NATURE OF INTERPLEADER IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF OREGON. 

IN ITS COMPLAINT STATE FARM ASSERTED THAT AT THE TIME OF THE SHASTA
COUNTY COLLISION IT HAD IN FORCE AN INSURANCE POLICY WITH RESPECT TO
ELLIS CLARK, DRIVER OF THE TRUCK, PROVIDING FOR BODILY INJURY LIABILITY
UP TO $10,000 PER PERSON AND $20,000 PER OCCURRENCE AND FOR LEGAL
REPRESENTATION OF CLARK IN ACTIONS COVERED BY THE POLICY.  IT ASSERTED
THAT ACTIONS ALREADY FILED IN CALIFORNIA AND OTHERS WHICH IT
ANTICIPATED WOULD BE FILED FAR EXCEEDED IN AGGREGATE DAMAGES SOUGHT THE
AMOUNT OF ITS MAXIMUM LIABILITY UNDER THE POLICY.  ACCORDINGLY, IT PAID
INTO COURT THE SUM OF $20,000 AND ASKED THE COURT (1) TO REQUIRE ALL
CLAIMANTS TO ESTABLISH THEIR CLAIMS AGAINST CLARK AND HIS INSURER IN
THIS SINGLE PROCEEDING AND IN NO OTHER, AND (2) TO DISCHARGE STATE FARM
FROM ALL FURTHER OBLIGATIONS UNDER ITS POLICY - INCLUDING ITS DUTY TO
DEFEND CLARK IN LAWSUITS ARISING FROM THE ACCIDENT.  ALTERNATIVELY,
STATE FARM EXPRESSED ITS CONVICTION THAT THE POLICY ISSUED TO CLARK
EXCLUDED FROM COVERAGE ACCIDENTS RESULTING FROM HIS OPERATION OF A
TRUCK WHICH BELONGED TO ANOTHER AND WAS BEING USED IN THE BUSINESS OF
ANOTHER.  THE COMPLAINT, THEREFORE, REQUESTED THAT THE COURT DECREE
THAT THE INSURER OWED NO DUTY TO CLARK AND WAS NOT LIABLE ON THE
POLICY, AND IT ASKED THE COURT TO REFUND THE $20,000 DEPOSIT. 

JOINED AS DEFENDANTS WERE CLARK, GLASGOW, NAUTA, GREYHOUND LINES, AND
EACH OF THE PROSPECTIVE CLAIMANTS.  JURISDICTION WAS PREDICATED UPON 28
U.S.C. SEC 1335, THE FEDERAL INTERPLEADER STATUTE, (FN1)  AND UPON
GENERAL DIVERSITY OF CITIZENSHIP, THERE BEING DIVERSITY BETWEEN TWO OR
MORE OF THE CLAIMANTS TO THE FUND AND BETWEEN STATE FARM AND ALL OF THE
NAMED DEFENDANTS. 

AN ORDER ISSUED, REQUIRING THE DEFENDANTS TO SHOW CAUSE WHY THEY
SHOULD NOT BE RESTRAINED FROM FILING OR PROSECUTING "ANY PROCEEDING IN
ANY STATE OR UNITED STATES COURT AFFECTING THE PROPERTY OR OBLIGATION
INVOLVED IN THIS INTERPLEADER ACTION, AND SPECIFICALLY AGAINST THE
PLAINTIFF AND THE DEFENDANT ELLIS D. CLARK."  PERSONAL SERVICE WAS
EFFECTED ON EACH OF THE AMERICAN DEFENDANTS, AND REGISTERED MAIL WAS
EMPLOYED TO REACH THE 11 CANADIAN CLAIMANTS.  DEFENDANTS NAUTA,
GREYHOUND, AND SEVERAL OF THE INJURED PASSENGERS RESPONDED, CONTENDING
THAT THE POLICY DID COVER THIS ACCIDENT AND ADVANCING VARIOUS ARGUMENTS
FOR THE POSITION THAT INTERPLEADER WAS EITHER IMPERMISSIBLE OR
INAPPROPRIATE IN THE PRESENT CIRCUMSTANCES.  GREYHOUND, HOWEVER, SOON
SWITCHED SIDES AND MOVED THAT THE COURT BROADEN ANY INJUNCTION TO
INCLUDE NAUTA AND GREYHOUND AMONG THOSE WHO COULD NOT BE SUED EXCEPT
WITHIN THE CONFINES OF THE INTERPLEADER PROCEEDING. 

WHEN A TEMPORARY INJUNCTION ALONG THE LINES SOUGHT BY STATE FARM WAS
ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON,
THE PRESENT RESPONDENTS MOVED TO DISMISS THE ACTION AND, IN THE
ALTERNATIVE, FOR A CHANGE OF VENUE - TO THE NORTHERN DISTRICT OF
CALIFORNIA, IN WHICH DISTRICT THE COLLISION HAD OCCURRED.  AFTER A
HEARING, THE COURT DECLINED TO DISSOLVE THE TEMPORARY INJUNCTION, BUT
CONTINUED THE MOTION FOR A CHANGE OF VENUE.  THE INJUNCTION WAS LATER
BROADENED TO INCLUDE THE PROTECTION SOUGHT BY GREYHOUND, BUT MODIFIED
TO PERMIT THE FILING - ALTHOUGH NOT THE PROSECUTION - OF SUITS.  THE
INJUNCTION, THEREFORE, PROVIDED THAT ALL SUITS AGAINST CLARK, STATE
FARM, GREYHOUND, AND NAUTA BE PROSECUTED IN THE INTERPLEADER
PROCEEDING. 

ON INTERLOCUTORY APPEAL,  (FN2)  THE COURT OF APPEALS FOR THE NINTH
CIRCUIT REVERSED.  363 F.2D 7.   THE COURT FOUND IT UNNECESSARY TO
REACH RESPONDENTS' CONTENTIONS RELATING TO SERVICE OF PROCESS AND THE
SCOPE OF THE INJUNCTION, FOR IT CONCLUDED THAT INTERPLEADER WAS NOT
AVAILABLE IN THE CIRCUMSTANCES OF THIS CASE.  IT HELD THAT IN STATES
LIKE OREGON WHICH DO NOT PERMIT "DIRECT ACTION" SUITS AGAINST INSURANCE
COMPANIES UNTIL JUDGMENTS ARE OBTAINED AGAINST THE INSURED, THE
INSURANCE COMPANIES MAY NOT INVOKE FEDERAL INTERPLEADER UNTIL THE
CLAIMS AGAINST THE INSURED, THE ALLEGED TORTFEASOR, HAVE BEEN REDUCED
TO JUDGMENT.  UNTIL THAT IS DONE, SAID THE COURT, CLAIMANTS WITH
UNLIQUIDATED TORT CLAIMS ARE NOT "CLAIMANTS" WITHIN THE MEANING OF SEC
1335, NOR ARE THEY "PERSONS HAVING CLAIMS AGAINST THE PLAINTIFF" WITHIN
THE MEANING OF RULE 22 OF THE FEDERAL RULES OF CIVIL PROCEDURE.  (FN3)
ID., AT 10.  IN ACCORD WITH THAT VIEW, IT DIRECTED DISSOLUTION OF THE
TEMPORARY INJUNCTION AND DISMISSAL OF THE ACTION.  BECAUSE THE COURT OF
APPEALS' DECISION ON THIS POINT CONFLICTS WITH THOSE OF OTHER FEDERAL
COURTS,  (FN4)  AND CONCERNS A MATTER OF SIGNIFICANCE TO THE
ADMINISTRATION OF FEDERAL INTERPLEADER, WE GRANTED CERTIORARI.  385
U.S. 811 (1966).  ALTHOUGH WE REVERSE THE DECISION OF THE COURT OF
APPEALS UPON THE JURISDICTIONAL QUESTION, WE DIRECT A SUBSTANTIAL
MODIFICATION OF THE DISTRICT COURT'S INJUNCTION FOR REASONS WHICH WILL
APPEAR. 

                                       I. 

BEFORE CONSIDERING THE ISSUES PRESENTED BY THE PETITION FOR
CERTIORARI, WE FIND IT NECESSARY TO DISPOSE OF A QUESTION NEITHER
RAISED BY THE PARTIES NOR PASSED UPON BY THE COURTS BELOW.  SINCE THE
MATTER CONCERNS OUR JURISDICTION, WE RAISE IT ON OUR OWN MOTION. 
TREINIES V. SUNSHINE MINING CO., 308 U.S. 66, 70 (1939).  THE
INTERPLEADER STATUTE, 28 U.S.C. SEC 1335, APPLIES WHERE THERE ARE "TWO
OR MORE ADVERSE CLAIMANTS, OF DIVERSE CITIZENSHIP  ...  ."  THIS
PROVISION HAS BEEN UNIFORMLY CONSTRUED TO REQUIRE ONLY "MINIMAL
DIVERSITY," THAT IS, DIVERSITY OF CITIZENSHIP BETWEEN TWO OR MORE
CLAIMANTS, WITHOUT REGARD TO THE CIRCUMSTANCE THAT OTHER RIVAL
CLAIMANTS MAY BE CO-CITIZENS.  (FN5) THE LANGUAGE OF THE STATUTE, THE
LEGISLATIVE PURPOSE BROADLY TO REMEDY THE PROBLEMS POSED BY MULTIPLE
CLAIMANTS TO A SINGLE FUND, AND THE CONSISTENT JUDICIAL INTERPRETATION
TACITLY ACCEPTED BY CONGRESS, PERSUADE US THAT THE STATUTE REQUIRES NO
MORE.  THERE REMAINS, HOWEVER, THE QUESTION WHETHER SUCH A STATUTORY
CONSTRUCTION IS CONSISTENT WITH ARTICLE III OF OUR CONSTITUTION, WHICH
EXTENDS THE FEDERAL JUDICIAL POWER TO "CONTROVERSIES  ...  BETWEEN
CITIZENS OF DIFFERENT STATES  ...  AND BETWEEN A STATE, OR THE CITIZENS
THEREOF, AND FOREIGN STATES, CITIZENS OR SUBJECTS."  IN STRAWBRIDGE V.
CURTISS, 3 CRANCH 267 (1806), THIS COURT HELD THAT THE DIVERSITY OF
CITIZENSHIP STATUTE REQUIRED "COMPLETE DIVERSITY":  WHERE CO-CITIZENS
APPEARED ON BOTH SIDES OF A DISPUTE, JURISDICTION WAS LOST.  BUT CHIEF
JUSTICE MARSHALL THERE PURPORTED TO CONSTRUE ONLY "THE WORDS OF THE ACT
OF CONGRESS," NOT THE CONSTITUTION ITSELF.  (FN6)  AND IN A VARIETY OF
CONTEXTS THIS COURT AND THE LOWER COURTS HAVE CONCLUDED THAT ARTICLE
III POSES NO OBSTACLE TO THE LEGISLATIVE EXTENSION OF FEDERAL
JURISDICTION, FOUNDED ON DIVERSITY, SO LONG AS ANY TWO ADVERSE PARTIES
ARE NOT CO-CITIZENS.  (FN7)  ACCORDINGLY, WE CONCLUDE THAT THE PRESENT
CASE IS PROPERLY IN THE FEDERAL COURTS. 

                          II. 

WE DO NOT AGREE WITH THE COURT OF APPEALS THAT, IN THE ABSENCE OF A
STATE LAW OR CONTRACTUAL PROVISION FOR "DIRECT ACTION" SUITS AGAINST
THE INSURANCE COMPANY, THE COMPANY MUST WAIT UNTIL PERSONS ASSERTING
CLAIMS AGAINST ITS INSURED HAVE REDUCED THOSE CLAIMS TO JUDGMENT BEFORE
SEEKING TO INVOKE THE BENEFITS OF FEDERAL INTERPLEADER.  THAT MAY HAVE
BEEN A TENABLE POSITION UNDER THE 1926 (FN8)  AND 1936 INTERPLEADER
STATUTES.  (FN9)  THESE STATUTES DID NOT CARRY FORWARD THE LANGUAGE IN
THE 1917 ACT AUTHORIZING INTERPLEADER WHERE ADVERSE CLAIMANTS "MAY
CLAIM" BENEFITS AS WELL AS WHERE THEY "ARE CLAIMING" THEM.  (FN10)  IN
1948, HOWEVER, IN THE REVISION OF THE JUDICIAL CODE, THE "MAY CLAIM"
LANGUAGE WAS RESTORED.  (FN11)  UNTIL THE DECISION BELOW, EVERY COURT
CONFRONTED BY THE QUESTION HAS CONCLUDED THAT THE 1948 REVISION REMOVED
WHATEVER REQUIREMENT THERE MIGHT PREVIOUSLY HAVE BEEN THAT THE
INSURANCE COMPANY WAIT UNTIL AT LEAST TWO CLAIMANTS REDUCED THEIR
CLAIMS TO JUDGMENTS.  (FN12)  THE COMMENTATORS ARE IN ACCORD.  (FN13) 

CONSIDERATIONS OF JUDICIAL ADMINISTRATION DEMONSTRATE THE SOUNDNESS
OF THIS VIEW WHICH, IN ANY EVENT, SEEMS COMPELLED BY THE LANGUAGE OF
THE PRESENT STATUTE, WHICH IS REMEDIAL AND TO BE LIBERALLY CONSTRUED. 
WERE AN INSURANCE COMPANY REQUIRED TO AWAIT REDUCTION OF CLAIMS TO
JUDGMENT, THE FIRST CLAIMANT TO OBTAIN SUCH A JUDGMENT OR TO NEGOTIATE
A SETTLEMENT MIGHT APPROPRIATE ALL OR A DISPROPORTIONATE SLICE OF THE
FUND BEFORE HIS FELLOW CLAIMANTS WERE ABLE TO ESTABLISH THEIR CLAIMS. 
THE DIFFICULTIES SUCH A RACE TO JUDGMENT POSE FOR THE INSURER,  (FN14)
AND THE UNFAIRNESS WHICH MAY RESULT TO SOME CLAIMANTS, WERE AMONG THE
PRINCIPAL EVILS THE INTERPLEADER DEVICE WAS INTENDED TO REMEDY.  (FN15)

                                         III. 

THE FACT THAT STATE FARM HAD PROPERLY INVOKED THE INTERPLEADER
JURISDICTION UNDER SEC 1335 DID NOT, HOWEVER, ENTITLE IT TO AN ORDER
BOTH ENJOINING PROSECUTION OF SUITS AGAINST IT OUTSIDE THE CONFINES OF
THE INTERPLEADER PROCEEDING AND ALSO EXTENDING SUCH PROTECTION TO ITS
INSURED, THE ALLEGED TORTFEASOR.  STILL LESS WAS GREYHOUND LINES
ENTITLED TO HAVE THAT ORDER EXPANDED SO AS TO PROTECT ITSELF AND ITS
DRIVER, ALSO ALLEGED TO BE TORTFEASORS, FROM SUITS BROUGHT BY ITS
PASSENGERS IN VARIOUS STATE OR FEDERAL COURTS.  HERE, THE SCOPE OF THE
LITIGATION, IN TERMS OF PARTIES AND CLAIMS, WAS VASTLY MORE EXTENSIVE
THAN THE CONFINES OF THE "FUND," THE DEPOSITED PROCEEDS OF THE
INSURANCE POLICY.  IN THESE CIRCUMSTANCES, THE MERE EXISTENCE OF SUCH A
FUND CANNOT, BY USE OF INTERPLEADER, BE EMPLOYED TO ACCOMPLISH PURPOSES
THAT EXCEED THE NEEDS OF ORDERLY CONTEST WITH RESPECT TO THE FUND. 

THERE ARE SITUATIONS, OF A TYPE NOT PRESENT HERE, WHERE THE EFFECT OF
INTERPLEADER IS TO CONFINE THE TOTAL LITIGATION TO A SINGLE FORUM AND
PROCEEDING.  ONE SUCH CASE IS WHERE A STAKEHOLDER, FACED WITH RIVAL
CLAIMS TO THE FUND ITSELF, ACKNOWLEDGES - OR DENIES - HIS LIABILITY TO
ONE OR THE OTHER OF THE CLAIMANTS.  (FN16)  IN THIS SITUATION, THE FUND
ITSELF IS THE TARGET OF THE CLAIMANTS.  IT MARKS THE OUTER LIMITS OF
THE CONTROVERSY.  IT IS, THEREFORE, REASONABLE AND SENSIBLE THAT
INTERPLEADER, IN DISCHARGE OF ITS OFFICE TO PROTECT THE FUND, SHOULD
ALSO PROTECT THE STAKEHOLDER FROM VEXATIOUS AND MULTIPLE LITIGATION. 
IN THIS CONTEXT, THE SUITS SOUGHT TO BE ENJOINED ARE SQUARELY WITHIN
THE LANGUAGE OF 28 U.S.C.  SEC 2361, WHICH PROVIDES IN PART: 

"IN ANY CIVIL ACTION OF INTERPLEADER OR IN THE NATURE OF INTERPLEADER
UNDER SECTION 1335 OF THIS TITLE, A DISTRICT COURT MAY ISSUE ITS
PROCESS FOR ALL CLAIMANTS AND ENTER ITS ORDER RESTRAINING THEM FROM
INSTITUTING OR PROSECUTING ANY PROCEEDING IN ANY STATE OR UNITED STATES
COURT AFFECTING THE PROPERTY, INSTRUMENT OR OBLIGATION INVOLVED IN THE
INTERPLEADER ACTION  ...  ." 

BUT THE PRESENT CASE IS ANOTHER MATTER.  HERE, AN ACCIDENT HAS
HAPPENED.  THIRTY-FIVE PASSENGERS OR THEIR REPRESENTATIVES HAVE CLAIMS
WHICH THEY WISH TO PRESS AGAINST A VARIETY OF DEFENDANTS:  THE BUS
COMPANY, ITS DRIVER, THE OWNER OF THE TRUCK, AND THE TRUCK DRIVER.  THE
CIRCUMSTANCE THAT ONE OF THE PROSPECTIVE DEFENDANTS HAPPENS TO HAVE AN
INSURANCE POLICY IS A FORTUITOUS EVENT WHICH SHOULD NOT OF ITSELF SHAPE
THE NATURE OF THE ENSUING LITIGATION.  FOR EXAMPLE, A RESIDENT OF
CALIFORNIA, INJURED IN CALIFORNIA ABOARD A BUS OWNED BY A CALIFORNIA
CORPORATION SHOULD NOT BE FORCED TO SUE THAT CORPORATION ANYWHERE BUT
IN CALIFORNIA SIMPLY BECAUSE ANOTHER PROSPECTIVE DEFENDANT CARRIED AN
INSURANCE POLICY.  AND AN INSURANCE COMPANY WHOSE MAXIMUM INTEREST IN
THE CASE CANNOT EXCEED $20,000 AND WHO IN FACT ASSERTS THAT IT HAS NO
INTEREST AT ALL, SHOULD NOT BE ALLOWED TO DETERMINE THAT DOZENS OF TORT
PLAINTIFFS MUST BE COMPELLED TO PRESS THEIR CLAIMS - EVEN THOSE CLAIMS
WHICH ARE NOT AGAINST THE INSURED AND WHICH IN NO EVENT COULD BE
SATISFIED OUT OF THE MEAGER INSURANCE FUND - IN A SINGLE FORUM OF THE
INSURANCE COMPANY'S CHOOSING.  THERE IS NOTHING IN THE STATUTORY
SCHEME, AND VERY LITTLE IN THE JUDICIAL AND ACADEMIC COMMENTARY UPON
THAT SCHEME, WHICH REQUIRES THAT THE TAIL BE ALLOWED TO WAG THE DOG IN
THIS FASHION.    STATE FARM'S INTEREST IN THIS CASE, WHICH IS THE
FULCRUM OF THE INTERPLEADER PROCEDURE, IS CONFINED TO ITS $20,000
FUND.  THAT INTEREST RECEIVES FULL VINDICATION WHEN THE COURT RESTRAINS
CLAIMANTS FROM SEEKING TO ENFORCE AGAINST THE INSURANCE COMPANY ANY
JUDGMENT OBTAINED AGAINST ITS INSURED, EXCEPT IN THE INTERPLEADER
PROCEEDING ITSELF.  TO THE EXTENT THAT THE DISTRICT COURT SOUGHT TO
CONTROL CLAIMANTS' LAWSUITS AGAINST THE INSURED AND OTHER ALLEGED
TORTFEASORS, IT EXCEEDED THE POWERS GRANTED TO IT BY THE STATUTORY
SCHEME. 

WE RECOGNIZE, OF COURSE, THAT OUR VIEW OF INTERPLEADER MEANS THAT IT
CANNOT BE USED TO SOLVE ALL THE VEXING PROBLEMS OF MULTIPARTY
LITIGATION ARISING OUT OF A MASS TORT.  BUT INTERPLEADER WAS NEVER
INTENDED TO PERFORM SUCH A FUNCTION, TO BE AN ALL-PURPOSE "BILL OF
PEACE."  (FN17)  HAD IT BEEN SO INTENDED, CAREFUL PROVISION WOULD
NECESSARILY HAVE BEEN MADE TO INSURE THAT A PARTY WITH LITTLE OR NO
INTEREST IN THE OUTCOME OF A COMPLEX CONTROVERSY SHOULD NOT STRIP TRULY
INTERESTED PARTIES OF SUBSTANTIAL RIGHTS - SUCH AS THE RIGHT TO CHOOSE
THE FORUM IN WHICH TO ESTABLISH THEIR CLAIMS, SUBJECT TO GENERALLY
APPLICABLE RULES OF JURISDICTION, VENUE, SERVICE OF PROCESS, REMOVAL,
AND CHANGE OF VENUE.  NONE OF THE LEGISLATIVE AND ACADEMIC SPONSORS OF
A MODERN FEDERAL INTERPLEADER DEVICE VIEWED THEIR ACCOMPLISHMENT AS A
"BILL OF PEACE," CAPABLE OF SWEEPING DOZENS OF LAWSUITS OUT OF THE
VARIOUS STATE AND FEDERAL COURTS IN WHICH THEY WERE BROUGHT AND INTO A
SINGLE INTERPLEADER PROCEEDING.  AND ONLY IN TWO REPORTED INSTANCES HAS
A FEDERAL INTERPLEADER COURT SOUGHT TO CONTROL THE UNDERLYING
LITIGATION AGAINST ALLEGED TORTFEASORS AS OPPOSED TO THE ALLOCATION OF
A FUND AMONG SUCCESSFUL TORT PLAINTIFFS.  SEE COMMERCIAL UNION
INSURANCE CO. OF NEW YORK V. ADAMS, 231 F. SUPP. 860 (D.C.S.D. IND.
1964)(WHERE THERE WAS VIRTUALLY NO OBJECTION AND WHERE ALL OF THE BASIC
TORT SUITS WOULD IN ANY EVENT HAVE BEEN PROSECUTED IN THE FORUM STATE),
AND PAN AMERICAN FIRE & CASUALTY CO. V. REVERE, 188 F. SUPP. 474
(D.C.E.D. LA. 1960).  ANOTHER DISTRICT COURT, ON THE OTHER HAND, HAS
RECENTLY HELD THAT IT LACKED STATUTORY AUTHORITY TO ENJOIN SUITS
AGAINST THE ALLEGED TORTFEASOR AS OPPOSED TO PROCEEDINGS AGAINST THE
FUND ITSELF.  TRAVELERS INDEMNITY CO. V. GREYHOUND LINES, INC., 260 F.
SUPP. 530 (D.C.W.D. LA. 1966). 

IN LIGHT OF THE EVIDENCE THAT FEDERAL INTERPLEADER WAS NOT INTENDED
TO SERVE THE FUNCTION OF A "BILL OF PEACE" IN THE CONTEXT OF MULTIPARTY
LITIGATION ARISING OUT OF A MASS TORT, OF THE ANOMALOUS POWER WHICH
SUCH A CONSTRUCTION OF THE STATUTE WOULD GIVE THE STAKEHOLDER, AND OF
THE THRUST OF THE STATUTE AND THE PURPOSE IT WAS INTENDED TO SERVE, WE
HOLD THAT THE INTERPLEADER STATUTE DID NOT AUTHORIZE THE INJUNCTION
ENTERED IN THE PRESENT CASE.  UPON REMAND, THE INJUNCTION IS TO BE
MODIFIED CONSISTENTLY WITH THIS OPINION.  (FN18)

                          IV. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED TO THE UNITED STATES DISTRICT COURT FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  28 U.S.C. SEC. 1335(A) PROVIDES:  "THE DISTRICT COURTS SHALL
HAVE ORIGINAL JURISDICTION OF ANY CIVIL ACTION OF INTERPLEADER OR IN
THE NATURE OF INTERPLEADER FILED BY ANY PERSON, FIRM, OR CORPORATION,
ASSOCIATION, OR SOCIETY HAVING IN HIS OR ITS CUSTODY OR POSSESSION
MONEY OR PROPERTY OF THE VALUE OF $500 OR MORE, OR HAVING ISSUED A  ...
POLICY OF INSURANCE  ...  OF VALUE OR AMOUNT OF $500 OR MORE  ...
IF: 

"(1)  TWO OR MORE ADVERSE CLAIMANTS, OF DIVERSE CITIZENSHIP AS
DEFINED IN SECTION 1332 OF THIS TITLE, ARE CLAIMING OR MAY CLAIM TO BE
ENTITLED TO SUCH MONEY OR PROPERTY, OR TO ANY ONE OR MORE OF THE
BENEFITS ARISING BY VIRTUE OF ANY  ...  POLICY  ...  ; AND IF: 

(2)  THE PLAINTIFF HAS  ...  PAID  ...  THE AMOUNT DUE UNDER SUCH
OBLIGATION INTO THE REGISTRY OF THE COURT, THERE TO ABIDE THE JUDGMENT
OF THE COURT  ...  ." 

FN2 28 U.S.C. SEC. 1292(A)(1). 

FN3  WE NEED NOT PASS UPON THE COURT OF APPEALS' CONCLUSIONS WITH
RESPECT TO THE INTERPRETATION OF INTERPLEADER UNDER RULE 22, WHICH
PROVIDES THAT "(1) PERSONS HAVING CLAIMS AGAINST THE PLAINTIFF MAY BE
JOINED AS DEFENDANTS AND REQUIRED TO INTERPLEAD WHEN THEIR CLAIMS ARE
SUCH THAT THE PLAINTIFF IS OR MAY BE EXPOSED TO DOUBLE OR MULTIPLE
LIABILITY  ...  ."  FIRST, AS WE INDICATE TODAY, THIS ACTION WAS
PROPERLY BROUGHT UNDER SEC 1335.  SECOND, STATE FARM DID NOT PURPORT TO
INVOKE RULE 22.  THIRD, STATE FARM COULD NOT HAVE INVOKED IT IN LIGHT
OF VENUE AND SERVICE OF PROCESS LIMITATIONS.  WHEREAS STATUTORY
INTERPLEADER MAY BE BROUGHT IN THE DISTRICT WHERE ANY CLAIMANT RESIDES
(28 U.S.C. SEC 1397), RULE INTERPLEADER BASED UPON DIVERSITY OF
CITIZENSHIP MAY BE BROUGHT ONLY IN THE DISTRICT WHERE ALL PLAINTIFFS OR
ALL DEFENDANTS RESIDE (28 U.S.C. SEC. 1391(A)).  AND WHEREAS STATUTORY
INTERPLEADER ENABLES A PLAINTIFF TO EMPLOY NATIONWIDE SERVICE OF
PROCESS (28 U.S.C. SEC 2361), SERVICE OF PROCESS UNDER RULE 22 IS
CONFINED TO THAT PROVIDED IN RULE 4.  SEE GENERALLY 3 MOORE, FEDERAL
PRACTICE PARA 22.04. 

WITH RESPECT TO THE COURT OF APPEALS' VIEWS ON RULE 22, WHICH SEEM TO
BE SHARED BY OUR BROTHER DOUGLAS, COMPARE UNDERWRITERS AT LLOYD'S V.
NICHOLS, 363 F.2D 357 (C.A. 8TH CIR. 1966), AND A/S KREDIIT PANK V.
CHASE MANHATTAN BANK, 155 F. SUPP. 30 (D.C.S.D.N.Y. 1957), AFF'D, 303
F.2D 648 (C.A.2D CIR. 1962), WITH NATIONAL CASUALTY CO. V. INSURANCE
CO. OF NORTH AMERICA, 230 F. SUPP. 617 (D.C.N.D. OHIO 1964), AND
AMERICAN INDEMNITY CO. V. HALE, 71 F. SUPP. 529 (D.C.W.D. MO. 1947). 
SEE ALSO 3 MOORE, FEDERAL PRACTICE PARA 22.04, AT 3008 AND N. 4. 

FN4  SEE, E.G., TRAVELERS INDEMNITY CO. V. GREYHOUND LINES, INC., 260
F. SUPP. 530 (D.C.W.D. LA. 1966); COMMERCIAL UNION INSURANCE CO. OF NEW
YORK V. ADAMS, 231 F. SUPP.  860 (D.C.S.D. IND. 1964); PAN AMERICAN
FIRE & CASUALTY CO. V. REVERE, 188 F. SUPP. 474 (D.C.E.D. LA. 1960);
ONYX REFINING CO. V. EVANS PRODUCTION CORP., 182 F. SUPP. 253 (D.C.N.D.
TEX. 1959).  ALTHOUGH TRAVELERS AND REVERE WERE BROUGHT IN LOUISIANA, A
STATE WHICH AUTHORIZES "DIRECT ACTION" SUITS AGAINST INSURANCE
COMPANIES, THE STATUTE WAS NOT RELIED UPON IN TRAVELERS (SEE 260 F.
SUPP., AT 533, N. 3), AND FURNISHED ONLY AN ALTERNATIVE GROUND IN
REVERE (SEE 188 F. SUPP., AT 482-483). 

THE ONLY POST-1948 CASE RELIED UPON BY THE COURT OF APPEALS AND
RESPONDENTS, NATIONAL CASUALTY CO. V. INSURANCE CO. OF NORTH AMERICA,
230 F. SUPP. 617 (D.C.N.D. OHIO 1964), TURNS OUT TO BE OF LITTLE
ASSISTANCE WITH RESPECT TO STATUTORY INTERPLEADER SINCE THAT COURT
DENIED STATUTORY INTERPLEADER SOLELY ON THE GROUND THAT ALL CLAIMANTS
WERE CITIZENS OF OHIO AND HENCE LACKED THE REQUIRED DIVERSITY OF
CITIZENSHIP.  ID., AT 619. 

FN5  SEE, E.G., HAYNES V. FELDER, 239 F.2D 868, 872-875 (C.A. 5TH
CIR. 1957); HOLCOMB V. AETNA LIFE INSURANCE CO., 255 F.2D 577, 582
(C.A. 10TH CIR.), CERT. DENIED SUB NOM.  FLEMING V. AETNA LIFE
INSURANCE CO. 358 U.S. 879 (1958); CRAMER V. PHOENIX MUT. LIFE INS.
CO., 91 F.2D 141, 146-147 (C.A. 8TH CIR.), CERT. DENIED, 302 U.S. 739
(1937); COMMERCIAL UNION INSURANCE CO. OF NEW YORK V. ADAMS, 231 F.
SUPP. 860, 863 (D.C.S.D. IND. 1964); 3 MOORE, FEDERAL PRACTICE PARA
22.09, AT 3033. 

FN6  SUBSEQUENT DECISIONS OF THIS COURT INDICATE THAT STRAWBRIDGE IS
NOT TO BE GIVEN AN EXPANSIVE READING.  SEE, E.G., LOUISVILLE RAILROAD
CO. V. LETSON, 2 HOW.  497, 554-556 (1844), EXPRESSING THE VIEW THAT IN
1839 CONGRESS HAD IN FACT ACTED TO "RID THE COURTS OF THE DECISION IN
THE CASE OF STRAWBRIDGE AND CURTIS."  ID., AT 556. 

FN7  SEE, E.G., AMERICAN FIRE & CAS. CO. V. FINN, 341 U.S. 6, 10, N.
3 (1951), AND BARNEY V. LATHAM, 103 U.S. 205, 213 (1881), CONSTRUING
THE REMOVAL STATUTE, NOW 28 U.S.C. SEC. 1441(C); SUPREME TRIBE OF BEN
HUR V. CAUBLE, 255 U.S. 356 (1921), CONCERNING CLASS ACTIONS; WICHITA
R.R. & LIGHT CO. V. PUBLIC UTIL.  COMM., 260 U.S. 48 (1922), DEALING
WITH INTERVENTION BY CO-CITIZENS.  FULL-DRESS ARGUMENTS FOR THE
CONSTITUTIONALITY OF "MINIMAL DIVERSITY" IN SITUATIONS LIKE
INTERPLEADER, WHICH ARGUMENTS NEED NOT BE REHEARSED HERE, ARE SET OUT
IN JUDGE TUTTLE'S OPINION IN HAYNES V. FELDER, 239 F.2D, AT 875-876; IN
JUDGE WEINFELD'S OPINION IN TWENTIETH CENTURY-FOX FILM CORP. V. TAYLOR,
239 F. SUPP. 913, 918-921 (D.C.S.D.N.Y.  1965); AND IN ALI, STUDY OF
THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 180-190
(OFFICIAL DRAFT, PT. 1, 1965); 3 MOORE, FEDERAL PRACTICE PARA 22.09, AT
3033-3037; CHAFEE, FEDERAL INTERPLEADER SINCE THE ACT OF 1936, 49 YALE
L.J. 377, 393-406 (1940); CHAFEE, INTERPLEADER IN THE UNITED STATES
COURTS, 41 YALE L.J. 1134, 1165-1169 (1932).  WE NOTE THAT THE AMERICAN
LAW INSTITUTE'S PROPOSALS FOR REVISION OF THE JUDICIAL CODE TO DEAL
WITH THE PROBLEM OF MULTIPARTY, MULTIJURISDICTION LITIGATION ARE
PREDICATED UPON THE PERMISSIBILITY OF "MINIMAL DIVERSITY" AS A
JURISDICTIONAL BASIS. 

FN8  44 STAT. 416 (1926), WHICH ADDED CASUALTY COMPANIES TO THE
ENUMERATED CATEGORIES OF PLAINTIFFS ABLE TO BRING INTERPLEADER, AND
PROVIDED FOR THE ENJOINING OF PROCEEDINGS IN OTHER COURTS. 

FN9  49 STAT. 1096 (1936), WHICH AUTHORIZED "BILLS IN THE NATURE OF
INTERPLEADER," MEANING THOSE IN WHICH THE PLAINTIFF IS NOT WHOLLY
DISINTERESTED WITH RESPECT TO THE FUND HE HAS DEPOSITED IN COURT.  SEE
CHAFEE, THE FEDERAL INTERPLEADER ACT OF 1936:  I, 45 YALE L.J.  963
(1936). 

FN10  39 STAT. 929 (1917).  SEE KLABER V. MARYLAND CASUALTY CO., 69
F.2D 934, 938-939 (C.A. 8TH CIR. 1934), WHICH HELD THAT THE OMISSION IN
THE 1926 ACT OF THE EARLIER STATUTE'S "MAY CLAIM" LANGUAGE REQUIRED THE
DENIAL OF INTERPLEADER IN THE FACE OF UNLIQUIDATED CLAIMS (ALTERNATIVE
HOLDING). 

FN11  ALTHOUGH THE REVISER'S NOTE DID NOT REFER TO THE STATUTORY
CHANGE OR ITS PURPOSE, WE HAVE IT ON GOOD AUTHORITY THAT IT WAS THE
OMISSION IN THE NOTE RATHER THAN THE STATUTORY CHANGE WHICH WAS
INADVERTENT.  SEE 3 MOORE, FEDERAL PRACTICE PARA 22.08, AT 3025-3026,
N. 13.  AND IT WAS WIDELY ASSUMED THAT RESTORATION OF THE "MAY CLAIM"
LANGUAGE WOULD HAVE THE EFFECT OF OVERRULING THE HOLDING IN KLABER,
SUPRA, THAT ONE MAY NOT INVOKE INTERPLEADER TO PROTECT AGAINST
UNLIQUIDATED CLAIMS.  SEE, E.G., CHAFEE, 45 YALE L.J., AT 1163-1167;
CHAFEE, FEDERAL INTERPLEADER SINCE THE ACT OF 1936, 49 YALE L.J. 377,
418-420 (1940).  IN CIRCUMSTANCES LIKE THESE, THE 1948 REVISION OF THE
JUDICIAL CODE WORKED SUBSTANTIVE CHANGES.  EX PARTE COLLETT, 337 U.S.
55 (1949). 

FN12  SEE CASES LISTED IN N. 4. 

FN13  3 MOORE, FEDERAL PRACTICE PARA 22.08, AT 3024-3025; KEETON,
PREFERENTIAL SETTLEMENT OF LIABILITY-INSURANCE CLAIMS, 70 HARV. L. REV.
27, 41-42 (1956). 

FN14  SEE KEETON, OP. CIT. SUPRA, N. 13. 

FN15  THE INSURANCE PROBLEM ENVISIONED AT THE TIME WAS THAT OF AN
INSURER FACED WITH CONFLICTING BUT MUTUALLY EXCLUSIVE CLAIMS TO A
POLICY, RATHER THAN AN INSURER CONFRONTED WITH THE PROBLEM OF
ALLOCATING A FUND AMONG VARIOUS CLAIMANTS WHOSE INDEPENDENT CLAIMS MAY
EXCEED THE AMOUNT OF THE FUND.  S. REP. NO. 558, 74TH CONG., 1ST SESS.,
2-3, 7, 8 (1935); CHAFEE, MODERNIZING INTERPLEADER, 30 YALE L.J. 814,
818-819 (1921). 

FN16  THIS WAS THE CLASSIC SITUATION ENVISIONED BY THE SPONSORS OF
INTERPLEADER.  SEE N. 15, SUPRA. 

FN17  THERE IS NOT A WORD IN THE LEGISLATIVE HISTORY SUGGESTING SUCH
A PURPOSE.  SEE S. REP. NO. 558, 74TH CONG., 1ST SESS. (1935).  AND
PROFESSOR CHAFEE, UPON WHOSE WORK THE CONGRESS HEAVILY DEPENDED, HAS
WRITTEN THAT LITTLE THOUGHT WAS GIVEN TO THE SCOPE OF THE "SECOND
STAGE" OF INTERPLEADER, TO JUST WHAT WOULD BE ADJUDICATED BY THE
INTERPLEADER COURT.  SEE CHAFEE, BROADENING THE SECOND STAGE OF FEDERAL
INTERPLEADER, 56 HARV. L. REV.  929, 944-945 (1943).  WE NOTE THAT IN
PROFESSOR CHAFEE'S OWN STUDY OF THE BILL OF PEACE AS A DEVICE FOR
DEALING WITH THE PROBLEM OF MULTIPARTY LITIGATION, HE FAILS EVEN TO
MENTION INTERPLEADER.  SEE CHAFEE, SOME PROBLEMS OF EQUITY 149-198
(1950).  IN HIS WRITING ON INTERPLEADER, CHAFEE ASSUMED THAT THE
INTERPLEADER COURT WOULD ALLOCATE THE FUND "AMONG ALL THE CLAIMANTS WHO
GET JUDGMENT WITHIN A REASONABLE TIME  ...  ."  CHAFEE, THE FEDERAL
INTERPLEADER ACT OF 1936:  II, 45 YALE L.J. 1161, 1165 (1936).  SEE
ALSO CHAFEE, 49 YALE L.J., AT 420-421. 

FN18  WE FIND IT UNNECESSARY TO PASS UPON RESPONDENTS' CONTENTION,
RAISED IN THE COURTS BELOW BUT NOT PASSED UPON BY THE COURT OF APPEALS,
THAT INTERPLEADER SHOULD HAVE BEEN DISMISSED ON THE GROUND THAT THE 11
CANADIAN CLAIMANTS ARE "INDISPENSABLE PARTIES" WHO HAVE NOT BEEN
PROPERLY SERVED.  THE ARGUMENT IS THAT 28 U.S.C. SEC 2361 PROVIDES THE
EXCLUSIVE MODE OF EFFECTING SERVICE OF PROCESS IN STATUTORY
INTERPLEADER, AND THAT SEC 2361 - WHICH AUTHORIZES A DISTRICT COURT TO
"ISSUE ITS PROCESS FOR ALL CLAIMANTS" BUT SUBSEQUENTLY REFERS TO
SERVICE OF "SUCH PROCESS" BY MARSHALS "FOR THE RESPECTIVE DISTRICTS
WHERE THE CLAIMANTS RESIDE OR MAY BE FOUND" - DOES NOT PERMIT SERVICE
OF PROCESS BEYOND THE NATION'S BORDERS.  SINCE OUR DECISION WILL
REQUIRE BASIC RECONSIDERATION OF THE LITIGATION BY THE PARTIES AS WELL
AS THE LOWER COURTS, THERE APPEARS NEITHER NEED NOR NECESSITY TO
DETERMINE THIS QUESTION AT THIS TIME.  WE INTIMATE NO VIEW AS TO THE
EXCLUSIVITY OF SEC 2361, WHETHER IT AUTHORIZES SERVICE OF PROCESS IN
FOREIGN LANDS, WHETHER IN LIGHT OF THE LIMITATIONS WE HAVE IMPOSED ON
THE INTERPLEADER COURT'S INJUNCTIVE POWERS THE CANADIAN CLAIMANTS ARE
IN FACT "INDISPENSABLE PARTIES" TO THE INTERPLEADER PROCEEDING ITSELF,
OR WHETHER THEY RENDER THEMSELVES AMENABLE TO SERVICE OF PROCESS UNDER
SEC 2361 WHEN THEY COME INTO AN AMERICAN JURISDICTION TO ESTABLISH
THEIR RIGHTS WITH RESPECT EITHER TO THE ALLEGED TORTFEASORS OR TO THE
INSURANCE FUND.  SEE 2 MOORE, FEDERAL PRACTICE PARA 4.20, AT 1091
1105.    MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

WHILE I AGREE WITH THE COURT'S VIEW AS TO "MINIMAL DIVERSITY" AND
THAT THE INJUNCTION, IF GRANTED, SHOULD RUN ONLY AGAINST PROSECUTION OF
SUITS AGAINST THE INSURER, I FEEL THAT THE USE WHICH WE TODAY ALLOW TO
BE MADE OF THE FEDERAL INTERPLEADER STATUTE,  (FN1)  28 U.S.C.  SEC
1335, IS, WITH ALL DEFERENCE, UNWARRANTED.  HOW THESE LITIGANTS ARE
"CLAIMANTS" TO THIS FUND IN THE STATUTORY SENSE IS INDEED A MYSTERY. 
IF THEY ARE NOT "CLAIMANTS" OF THE FUND, (FN2)  NEITHER ARE THEY IN THE
CATEGORY OF THOSE WHO "ARE CLAIMING" OR WHO "MAY CLAIM" TO BE ENTITLED
TO IT. 

THIS INSURANCE COMPANY'S POLICY PROVIDES THAT IT WILL "PAY ON BEHALF
OF THE INSURED ALL SUMS WHICH THE INSURED SHALL BECOME LEGALLY
OBLIGATED TO PAY."  TO DATE THE INSURED HAS NOT BECOME "LEGALLY
OBLIGATED" TO PAY ANY SUM TO ANY LITIGANT.  SINCE NOTHING IS OWED UNDER
THE POLICY, I FAIL TO SEE HOW ANY LITIGANT CAN BE A "CLAIMANT" AS
AGAINST THE INSURANCE COMPANY.  IF THAT IS DOUBTFUL THE DOUBT IS
RESOLVED BY TWO OTHER CONDITIONS: 

(1)  THE POLICY STATES "NO ACTION SHALL LIE AGAINST THE COMPANY  ...
UNTIL THE AMOUNT OF THE INSURED'S OBLIGATION TO PAY SHALL HAVE BEEN
FINALLY DETERMINED EITHER BY JUDGMENT AGAINST THE INSURED AFTER ACTUAL
TRIAL OR BY WRITTEN AGREEMENT OF THE INSURED, THE CLAIMANT AND THE
COMPANY." 

(2)  UNDER CALIFORNIA LAW WHERE THE ACCIDENT HAPPENED AND UNDER
OREGON LAW WHERE THE INSURANCE CONTRACT WAS MADE, A DIRECT ACTION
AGAINST THE INSURER IS NOT ALLOWABLE UNTIL AFTER A LITIGANT RECEIVES A
FINAL JUDGMENT AGAINST THE INSURED.  (FN3) 

THUS UNDER THIS INSURANCE POLICY AS ENFORCED IN CALIFORNIA AND IN
OREGON A "CLAIMANT" AGAINST THE INSURED CAN BECOME A "CLAIMANT" AGAINST
THE INSURER ONLY AFTER FINAL JUDGMENT AGAINST THE INSURED OR AFTER A
CONSENSUAL WRITTEN AGREEMENT OF THE INSURER, A LITIGANT, AND THE
INSURED.  NEITHER OF THOSE TWO EVENTS HAS SO FAR HAPPENED.  (FN4) 

THIS CONSTRUCTION OF THE WORD "CLAIMANT" AGAINST THE FUND IS BORNE
OUT, AS THE COURT OF APPEALS NOTED, BY RULE 22(1) OF THE FEDERAL RULES
OF CIVIL PROCEDURE.  (FN5)  THAT RULE, ALSO BASED ON DIVERSITY OF
CITIZENSHIP, DIFFERS ONLY IN THE DISTRICT WHERE THE SUIT MAY BE BROUGHT
AND IN THE REACH OF SERVICE OF PROCESS, AS THE COURT POINTS OUT.  (FN6)
BUT IT ILLUMINATES THE NATURE OF FEDERAL INTERPLEADER FOR IT PROVIDES
THAT ONLY "PERSONS HAVING CLAIMS AGAINST THE PLAINTIFF (INSURER) MAY BE
JOINED AS DEFENDANTS AND REQUIRED TO INTERPLEAD." 

CAN IT BE THAT WE HAVE TWO KINDS OF INTERPLEADER STATUTES AS BETWEEN
WHICH AN INSURANCE COMPANY CAN CHOOSE:  ONE THAT PERMITS "CLAIMANTS"
AGAINST THE INSURER ("PERSONS HAVING CLAIMS AGAINST THE PLAINTIFF") TO
BE JOINED AND THE OTHER THAT PERMITS "CLAIMANTS" AGAINST THE INSURED TO
BE JOINED FOR THE BENEFIT OF THE INSURER EVEN THOUGH THEY MAY NEVER BE
"CLAIMANTS" AGAINST THE INSURER?  I CANNOT BELIEVE THAT CONGRESS
LAUNCHED SUCH AN IRRATIONAL SCHEME. 

THE COURT RESTS HEAVILY ON THE FACT THAT THE 1948 ACT CONTAINS THE
PHRASE "MAY CLAIM," WHILE THE 1926 AND 1936 INTERPLEADER STATUTES
CONTAINED THE PHRASE "ARE CLAIMING."  FROM THIS CHANGE IN LANGUAGE THE
COURT INFERS THAT CONGRESS INTENDED TO ALLOW AN INSURANCE COMPANY TO
INTERPLEAD EVEN THOUGH A JUDGMENT HAS NOT BEEN ENTERED AGAINST THE
INSURED AND THERE IS NO DIRECT-ACTION STATUTE.  THIS INFERENCE IS DRAWN
DESPITE THE FACT THAT THE REVISER'S NOTE CONTAINS NO REFERENCE TO THE
CHANGE IN WORDING OR ITS PURPOSE; THE OMISSION IS DISMISSED AS
"INADVERTENT."  BUT IT STRAINS CREDULITY TO SUGGEST THAT MENTION WOULD
NOT HAVE BEEN MADE OF SUCH A DRASTIC CHANGE, IF IN FACT CONGRESS
INTENDED TO MAKE IT.  AND, DESPITE THE CHANGE IN WORDING, UNDER THE
1948 ACT THERE MUST BE "ADVERSE CLAIMANTS  ...  WHO ARE CLAIMING OR MAY
CLAIM TO BE ENTITLED TO SUCH MONEY  ...  , OR TO ANY ONE OR MORE OF THE
BENEFITS ARISING BY VIRTUE OF ANY  ...  POLICY  ...  ."  ABSENT A
DIRECT-ACTION STATUTE, THE VICTIMS ARE NOT "CLAIMANTS" AGAINST THE
INSURER UNTIL THEIR CLAIMS AGAINST THE INSURED HAVE BEEN REDUCED TO
JUDGMENT.  UNDERSTANDABLY, THE INSURANCE COMPANY WANTS THE BEST OF TWO
WORLDS.  IT DOES NOT WANT AN ACTION AGAINST IT UNTIL JUDGMENT AGAINST
ITS INSURED.  BUT, AT THE SAME TIME, IT WANTS THE BENEFITS OF AN
INTERPLEADER STATUTE.  CONGRESS COULD OF COURSE CONFER SUCH A BENEFIT. 
BUT IT IS NOT FOR THIS COURT TO GRANT DISPENSATIONS FROM THE EFFECTS OF
THE STATUTORY SCHEME WHICH CONGRESS HAS ERECTED. 

I WOULD CONSTRUE ITS WORDS IN THE NORMAL SENSE AND AFFIRM THE COURT
OF APPEALS. 

FN1  "(A)  THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF
ANY CIVIL ACTION OF INTERPLEADER OR IN THE NATURE OF INTERPLEADER FILED
BY ANY PERSON, FIRM, OR CORPORATION, ASSOCIATION, OR SOCIETY HAVING IN
HIS OR ITS CUSTODY OR POSSESSION MONEY OR PROPERTY OF THE VALUE OF $500
OR MORE, OR HAVING ISSUED A NOTE, BOND, CERTIFICATE, POLICY OF
INSURANCE, OR OTHER INSTRUMENT OF VALUE OR AMOUNT OF $500 OR MORE  ...
IF: 

"(1)  TWO OR MORE ADVERSE CLAIMANTS, OR DIVERSE CITIZENSHIP AS
DEFINED IN SECTION 1332 OF THIS TITLE, ARE CLAIMING OR MAY CLAIM TO BE
ENTITLED TO SUCH MONEY OR PROPERTY, OR TO ANY ONE OF MORE OF THE
BENEFITS ARISING BY VIRTUE OF ANY NOTE, BOND, CERTIFICATE, POLICY OR
OTHER INSTRUMENT, OR ARISING BY VIRTUE OF ANY SUCH OBLIGATION; AND IF
(2) THE PLAINTIFF HAS DEPOSITED SUCH MONEY OR PROPERTY  ...  INTO THE
REGISTRY OF THE COURT, THERE TO ABIDE THE JUDGMENT OF THE COURT  ...
." 

FN2  UNDER THE POLICY ISSUED BY STATE FARM, IT PROMISES "TO PAY ON
BEHALF OF THE INSURED ALL SUMS WHICH THE INSURED SHALL BECOME LEGALLY
OBLIGATED TO PAY AS DAMAGES BECAUSE OF (A) BODILY INJURY SUSTAINED BY
OTHER PERSONS  ...  CAUSED BY ACCIDENT ARISING OUT OF THE OWNERSHIP,
MAINTENANCE OR USE, INCLUDING LOADING OR UNLOADING, OF THE OWNED
AUTOMOBILE  ...  ."  THE INSURED WILL "BECOME LEGALLY OBLIGATED TO PAY"
ONLY IF HE HAS BEEN FOUND TO BE AT FAULT FOR THE ACCIDENT, OR IF THE
VICTIM'S CLAIM HAS BEEN SETTLED IN ACCORD WITH THE POLICY TERMS.  THE
CLAIM AGAINST THE INSURANCE COMPANY IS THUS CONTINGENT ON A FINDING
THAT THE INSURED WAS AT FAULT OR A SETTLEMENT.  THIS IS UNLIKE THE
SITUATION WHERE THE INSURANCE COMPANY HAS ISSUED A POLICY SUCH AS A
WORKMEN'S COMPENSATION POLICY WHICH INSURES THE INSURED FOR LIABILITY
IMPOSED IN THE ABSENCE OF FAULT. 

FN3  SEE CALIF. INS. CODE SEC. 11580(B)(2); ORE.  REV.  STAT. SEC.
23.230. 

FN4  IN THOSE STATES HAVING A DIRECT-ACTION STATUTE, ALLOWING AN
ACTION AGAINST THE INSURER PRIOR TO JUDGMENT AGAINST THE INSURED,
INTERPLEADER JURISDICTION CAN BE SUSTAINED ABSENT A JUDGMENT AGAINST
THE INSURED.  THE DIRECT-ACTION STATUTE GIVES THE INJURED PARTY THE
STATUS OF A "CLAIMANT" AGAINST THE INSURER.  SEE, E.G., PAN AMERICAN
FIRE & CASUALTY CO. V. REVERE, 188 F. SUPP. 474, 482-483. 

FN5  RULE 22(1) PROVIDES IN PART: 

"PERSONS HAVING CLAIMS AGAINST THE PLAINTIFF MAY BE JOINED AS
DEFENDANTS AND REQUIRED TO INTERPLEAD WHEN THEIR CLAIMS ARE SUCH THAT
THE PLAINTIFF IS OR MAY BE EXPOSED TO DOUBLE OR MULTIPLE LIABILITY." 

FN6  SEE N. 3 OF THE COURT'S OPINION. 
..END :


















NOWAKOWSKI V. MARONEY 386 U.S. 542. 


NO. 222.  ARGUED MARCH 13, 1967.  - DECIDED APRIL 10, 1967.  - VACATED
AND REMANDED. 


WHEN A FEDERAL DISTRICT JUDGE GRANTES A CERTIFICATE OF PROBABLE CAUSE
NECESSARY TO ALLOW A STATE PRISONER TO APPEAL A DENIAL OF A WRIT OF
HABEAS CORPUS, THE COURT OF APPEALS MUST ALLOW AN INDIGENT PETITIONER
TO APPEAL IN FORMA PAUPERIS AND DISPOSE OF THE CASE IN ACCORDANCE WITH
ITS ORDINARY PROCEDURE. 

NOWAKOWSKI V. MARONEY, CORRECTIONAL SUPERINTENDENT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

THE PETITIONER, A PRISONER IN THE PENNSYLVANIA PENAL SYSTEM, SOUGHT A
WRIT OF HABEAS CORPUS FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA.  HE ALLEGED, AMONG OTHER THINGS, THAT
HIS APPOINTED COUNSEL IN THE STATE TRIAL WHICH RESULTED IN HIS
CONVICTION HAD BEEN INEFFECTIVE, AND THAT HE HAD THEREFORE BEEN DENIED
THE AID AND ASSISTANCE OF COUNSEL GUARANTEED BY THE CONSTITUTION. 
GIDEON V. WAINWRIGHT, 372 U.S. 335.  THE DISTRICT COURT GRANTED
NOWAKOWSKI A HEARING AND APPOINTED A LAWYER TO ASSIST HIM.  FOLLOWING
THE HEARING AND "VIEWING THE RECORD OF THE TRIAL AND THE HABEAS CORPUS
HEARING AS A WHOLE" THE COURT CONCLUDED THAT PENNSYLVANIA "CANNOT BE
CONVICTED OF DENYING EFFECTIVE AID AND ASSISTANCE OF COUNSEL TO THE
RELATOR  ...  ."  HOWEVER, THE DISTRICT JUDGE ISSUED THE CERTIFICATE OF
PROBABLE CAUSE NECESSARY TO ALLOW A PERSON IN STATE CUSTODY TO APPEAL A
DENIAL OF FEDERAL HABEAS CORPUS.  28 U.S.C. SEC 2253. 

THE LAWYERS WHO ASSISTED THE PETITIONER AT THE HABEAS HEARING WERE
THEN ALLOWED TO WITHDRAW BY THE DISTRICT COURT.  NOWAKOWSKI
SUBSEQUENTLY PETITIONED THE COURT OF APPEALS FOR THE THIRD CIRCUIT TO
ALLOW HIM TO APPEAL IN FORMA PAUPERIS FROM THE DISTRICT COURT'S DENIAL
OF RELIEF.  HE ALSO ASKED TO BE ALLOWED TO PROCEED IN THE COURT OF
APPEALS ON WRITTEN BRIEFS AND SOUGHT THE APPOINTMENT OF COUNSEL.  THAT
COURT DENIED THE PETITION IN THE FOLLOWING ORDER: 

"UPON CONSIDERATION OF APPELLANT'S PETITION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND TO FILE HANDWRITTEN BRIEFS; AND FOR APPOINTMENT OF
COUNSEL IN THE ABOVE-ENTITLED CASE: 

"IT IS ORDERED THAT THE PETITION BE AND IT HEREBY IS DENIED." 

FOLLOWING THE THIRD CIRCUIT'S DENIAL OF NOWAKOWSKI'S PETITION FOR
REHEARING, HE SOUGHT A WRIT OF CERTIORARI FROM THIS COURT.  IT WAS
GRANTED, AS WAS HIS MOTION TO PROCEED IN FORMA PAUPERIS.  384 U.S.
984. 

WE HOLD THAT THE COURT OF APPEALS ERRED IN DENYING THE PETITIONER THE
RIGHT TO APPEAL AFTER THE DISTRICT JUDGE HAD ISSUED A SEC 2253
CERTIFICATE OF PROBABLE CAUSE.  IT IS ESTABLISHED LAW THAT A CIRCUIT
JUDGE OR JUSTICE ENTERTAINING AN APPLICATION FOR A CERTIFICATE SHOULD
GIVE "WEIGHTY CONSIDERATION" TO ITS PRIOR DENIAL BY A DISTRICT JUDGE. 
SULLIVAN V. HEINZE, 250 F.2D 427, 429; SOKOL, FEDERAL HABEAS CORPUS SEC
17, AT 94 (1965).  CF. IN RE WOODS, 249 F.2D 614, 616.  BUT WHEN A
DISTRICT JUDGE GRANTS SUCH A CERTIFICATE, THE COURT OF APPEALS MUST
GRANT AN APPEAL IN FORMA PAUPERIS (ASSUMING THE REQUISITE SHOWING OF
POVERTY), AND PROCEED TO A DISPOSITION OF THE APPEAL IN ACCORD WITH ITS
ORDINARY PROCEDURE. 

THE ORDER OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT IS THEREFORE
VACATED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 
..END :






D'AMICO V. BALTIMORE & O.R.R. CO. 386 U.S. 544 


NO. 1028.  DECIDED APRIL 10, 1967.  - APPEAL DISMISSED. 


D'AMICO V. BALTIMORE & OHIO RAILROAD CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE MOTION TO DISMISS IS ALSO GRANTED AND THE APPEAL IS
DISMISSED FOR WANT OF JURISDICTION. 
..END :
















FLORIDA E.C.R. CO. V. UNITED STATES 386 U.S. 544 


NO. 638.  DECIDED APRIL 10, 1967.* - 259 F. SUPP. 993, AFFIRMED IN NOS.
638, 639 AND 641, DISMISSED AS MOOT IN NO. 640. 

*TOGETHER WITH NO. 639, CITY OF TAMPA V. UNITED STATES ET AL.; NO.
640, RAILWAY LABOR EXECUTIVES' ASSOCIATION ET AL. V. UNITED STATES ET
AL.; AND NO. 641, SOUTHERN RAILWAY SYSTEM V. UNITED STATES, ALSO ON
APPEAL FROM THE SAME COURT. 


FLORIDA EAST COAST RAILWAY CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF FLORIDA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM IN NOS. 638, 639, AND 641 ARE GRANTED AND THE
JUDGMENT IS AFFIRMED. 

THE MOTION TO DISMISS IN NO. 640 IS GRANTED AND THE APPEAL IS
DISMISSED AS MOOT. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED IN NOS.  638, 639, AND 641. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :
























CROSS V. CALIFORNIA 386 U.S. 546 


NO. 1295, MISC.  DECIDED APRIL 10, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


CROSS V. CALIFORNIA. 

APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO. 

PER CURIAM. 

THE MOTION TO USE THE RECORD IN NO. 1161, MISC., OCTOBER TERM, 1965,
IS GRANTED. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :













YOUNG V. U.S. BUREAU OF PRISONS 386 U.S. 546 


NO. 1317, MISC.  DECIDED APRIL 10, 1967.  - 263 F. SUPP. 263, APPEAL
DISMISSED. 


YOUNG V. DIRECTOR, U.S. BUREAU OF PRISONS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 
..END :
















RAILROAD TRANS. SERVICE V. CHICAGO 386 U.S. 351 


NO. 209.  ARGUED FEBRUARY 13, 1967.  - DECIDED MARCH 27, 1967.  - 358
F.2D 55, REVERSED. 


PETITIONER, IN 1955, WAS ENGAGED BY THE RAILROADS IN REPLACEMENT OF
ANOTHER MOTOR CARRIER TO TRANSPORT PASSENGERS BETWEEN RAIL TERMINALS IN
CHICAGO.  TO BLOCK THE REPLACEMENT THE CITY AMENDED AN ORDINANCE
PRIMARILY REGULATORY OF TAXICAB COMPANIES BY REQUIRING NEW COMPANIES
SEEKING TO PERFORM TRANSFER SERVICES TO OBTAIN LICENSES BY, INTER ALIA,
DEMONSTRATING THEIR ABILITY TO SATISFY THE PUBLIC CONVENIENCE AND
NECESSITY.  THIS COURT, REJECTING THE CITY'S CONTENTION THAT THE
CHALLENGE WAS PREMATURE, INVALIDATED THAT REQUIREMENT IN CHICAGO V.
ATCHISON, T.&S.F.R. CO., 357 U.S. 77, A SUIT BROUGHT BY PETITIONER AND
THE RAILROADS.  THEREAFTER THE CITY REPEALED THE INVALID SECTION, BUT
ADDED OR LEFT UNCHANGED OTHER PROVISIONS, SO THAT UNDER THE AMENDED
ORDINANCE THE CITY STILL REQUIRES A LICENSE FOR EACH VEHICLE, FOR WHICH
A DETAILED APPLICATION HAS TO BE FILED AND A FEE PAID.  AN APPLICANT IS
REQUIRED TO HIRE ONLY CHICAGO RESIDENTS AS DRIVERS AND TO MAINTAIN ITS
PRINCIPAL BUSINESS PLACE IN CHICAGO.  A LICENSE, WHICH HAS TO BE
RENEWED EACH YEAR FOLLOWING THE SAME DETAILED APPLICATION PROCEDURE,
WILL BE ISSUED IF THE CITY AFTER INVESTIGATION FINDS THE APPLICANT
"QUALIFIED," AND THE VEHICLE FOR WHICH THE LICENSE IS SOUGHT IS IN
"SAFE AND PROPER CONDITION."  THE AMENDED ORDINANCE PROVIDES FOR A FINE
UP TO $100 A DAY FOR EACH VIOLATION OF ITS PROVISIONS.  PETITIONER
BROUGHT THIS ACTION SEEKING A DECLARATION THAT THE ORDINANCE IMPOSES
UNCONSTITUTIONAL BURDENS ON INTERSTATE COMMERCE AND REGULATES AN AREA
PRE-EMPTED BY THE INTERSTATE COMMERCE ACT.  WHILE THAT CASE WAS
PENDING, THE CITY AGAIN DEMANDED THAT PETITIONER HALT OPERATIONS UNLESS
IT "FULLY COMPLIED" WITH THE ORDINANCE, WHICH IT AGAIN AMENDED TO
IMPOSE ADDITIONAL REQUIREMENTS, INCLUDING THE FILING OF DETAILED
FINANCIAL REPORTS.  THE DISTRICT COURT DISMISSED PETITIONER'S ACTION AS
PREMATURE.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  PETITIONER'S ACTION IS NOT PREMATURE.  THOUGH PETITIONER OBTAINED
ITS LICENSE AFTER FILING THIS SUIT, IT HAS CONTINUED TO OPERATE ONLY BY
PAYING THE LICENSE FEES INTO COURT AND THE CITY HAS CONTINUALLY
DEMANDED THAT PETITIONER FULLY COMPLY WITH THE ORDINANCE OR BE
SUBJECTED TO PENALTIES FOR NOT DOING SO.  PP. 357-358. 

2.  THE ORDINANCE IS INVALID AS RESERVING TO THE CITY THE POWER WHICH
THE INTERSTATE COMMERCE ACT GIVES TO THE RAILROADS OF DETERMINING WHO
MAY TRANSFER INTERSTATE PASSENGERS AND BAGGAGE BETWEEN RAILROAD
TERMINALS AND AS IMPOSING REQUIREMENTS THE TOTAL EFFECT OF WHICH IS TO
BURDEN INTERSTATE COMMERCE.  ATCHISON, T.&S.F.R. CO., SUPRA, FOLLOWED. 

RAILROAD TRANSFER SERVICE, INC. V. CITY OF CHICAGO ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES FROM MORE THAN A DECADE OF CONTROVERSY BETWEEN
RAILROAD TRANSFER SERVICE, INC., AND THE CITY OF CHICAGO OVER THE
CITY'S PERSISTENT EFFORTS TO REGULATE TRANSFER'S BUSINESS, UNDER
CONTRACT WITH THE RAILROADS, OF DAILY TRANSPORTING BY MOTOR VEHICLE
THOUSANDS OF INTERSTATE RAILROAD PASSENGERS BETWEEN THE CITY'S RAIL
TERMINALS.  IN 1955 THE RAILROADS HIRED TRANSFER TO REPLACE ANOTHER
MOTOR CARRIER IN PERFORMING THIS INTERTERMINAL TRANSFER SERVICE.  BENT
ON BLOCKING THIS REPLACEMENT, THE CITY THEN AMENDED CHAPTER 28 OF ITS
MUNICIPAL CODE, WHICH HAD BEFORE BEEN PRIMARILY DIRECTED AT REGULATING
TAXICAB COMPANIES, TO REQUIRE THAT NEW COMPANIES SEEKING TO PERFORM THE
TRANSFER SERVICE OBTAIN LICENSES FROM THE CITY BY DEMONSTRATING, AMONG
OTHER THINGS, THEIR ABILITY TO SATISFY THE PUBLIC CONVENIENCE AND
NECESSITY.  BECAUSE THE CITY THREATENED TO FINE TRANSFER AND ARREST ITS
DRIVERS IF IT OPERATED WITHOUT A CITY LICENSE FOR EACH VEHICLE,
TRANSFER, WITHOUT ATTEMPTING TO OBTAIN SUCH LICENSES, AND THE RAILROADS
BROUGHT SUIT AGAINST THE CITY TO CHALLENGE THE VALIDITY OF THE PUBLIC
CONVENIENCE-AND-NECESSITY SECTION OF THE ORDINANCE.  IN CHICAGO V.
ATCHISON, T.&S.F.R. CO., 357 U.S. 77, REJECTING THE CITY'S ARGUMENT
THAT THE CHALLENGE WAS PREMATURE, WE HELD THAT SECTION "COMPLETELY
INVALID INSOFAR AS IT APPLIES TO TRANSFER  ...  ."  ID., AT 89. 

IN 1959, AFTER OUR DECISION IN ATCHISON, THE CITY REPEALED THE
INVALID SECTION, ADDED SOME NEW PROVISIONS, AND AMENDED OR LEFT
UNCHANGED OTHERS WHICH CLEARLY APPLIED TO TRANSFER BUT WERE NOT
SPECIFICALLY DEALT WITH IN OUR ATCHISON OPINION.  THE AMENDED
ORDINANCE, STILL MAKING IT UNLAWFUL FOR TRANSFER TO OPERATE WITHOUT
OBTAINING LICENSES FROM THE CITY,  (FN1)  PROVIDES THAT AN APPLICANT
FOR A LICENSE MUST, AMONG OTHER THINGS:  (FN2)  PAY A LICENSE FEE,
(FN3)  HIRE ONLY CHICAGO RESIDENTS AS ITS DRIVERS,  (FN4)  MAINTAIN ITS
PRINCIPAL PLACE OF BUSINESS IN CHICAGO,  (FN5)  AND FILE A DETAILED
WRITTEN APPLICATION.  (FN6)  UPON RECEIPT OF AN APPLICATION, THE CITY
MUST INVESTIGATE THE APPLICANT'S "CHARACTER AND REPUTATION  ...  AS A
LAW ABIDING CITIZEN" AND HIS "FINANCIAL ABILITY" TO RENDER "SAFE AND
COMFORTABLE" SERVICE, TO REPLACE AND MAINTAIN EQUIPMENT, AND TO PAY ALL
JUDGMENTS ARISING OUT OF VEHICLE OPERATION.  IF THE CITY FINDS THAT THE
APPLICANT IS "QUALIFIED" AND THAT THE VEHICLE FOR WHICH THE LICENSE IS
SOUGHT IS IN "SAFE AND PROPER CONDITION," THE AMENDED ORDINANCE
REQUIRES THE CITY TO ISSUE THE LICENSE.  (FN7)  LICENSES ARE VALID FOR
ONLY ONE APPLICATION PROCEDURE.  OUTSTANDING LICENSES ARE REVOCABLE ON
A NUMBER OF GROUNDS AT THE CITY'S DISCRETION.  (FN8)  FINALLY, THE
ORDINANCE PROVIDES A FINE OF UP TO $100 FOR EACH VIOLATION OF ANY OF
ITS PROVISIONS AND SPECIFIES THAT EACH DAY SUCH VIOLATION CONTINUES
SHALL BE DEEMED A SEPARATE OFFENSE.  (FN9) 

WITH THE ORDINANCE THUS AMENDED, THE CITY IN 1960 DEMANDED THAT
TRANSFER APPLY FOR LICENSES.  TRANSFER DID SO, AFTER UNSUCCESSFULLY
ATTEMPTING TO PAY THE LICENSE FEES UNDER PROTEST, AND THEN BROUGHT THIS
PRESENT LAWSUIT AGAINST THE CITY, ASKING THE DISTRICT COURT TO DECLARE
THE ABOVE-MENTIONED PROVISIONS OF THE ORDINANCE INVALID AS
UNCONSTITUTIONAL BURDENS ON INTERSTATE COMMERCE AND AS UNCONSTITUTIONAL
ATTEMPTS TO REGULATE IN AN AREA PREEMPTED BY THE INTERSTATE COMMERCE
ACT, 24 STAT. 379, AS AMENDED, 49 U.S.C. SEC 1 ET SEQ. WHILE THE CASE
WAS PENDING, THE CITY AGAIN DEMANDED THAT TRANSFER CEASE AND DESIST
OPERATIONS UNLESS IT "FULLY COMPLIED" WITH THE ORDINANCE  (FN10)  AND
AGAIN AMENDED ITS ORDINANCE TO IMPOSE NEW REQUIREMENTS ON TRANSFER SUCH
AS FILING DETAILED FINANCIAL REPORTS AND OPENING ITS BOOKS AND RECORDS
FOR CITY INSPECTION.  (FN11) NEVERTHELESS, THE DISTRICT COURT DISMISSED
TRANSFER'S ACTION AS PREMATURE.  BECAUSE TRANSFER HAD CONTINUED TO
OPERATE BY PAYING ITS LICENSE FEES INTO COURT AND BECAUSE THE CITY HAD
TAKEN NO FURTHER ACTION TO ENFORCE ITS ORDINANCE, THE COURT OF APPEALS
AFFIRMED, HOLDING TRANSFER'S COMPLAINT PREMATURE AND THE ORDINANCE
VALID ON ITS FACE.  358 F.2D 55.  WE GRANTED CERTIORARI TO CONSIDER
THESE TWO HOLDINGS AND CONCLUDE THAT THE ACTION IS NOT PREMATURE AND
THAT THE ORDINANCE IS INVALID. 

FIRST.  THE PREMATURITY ARGUMENTS WHICH THE CITY MAKES HERE ARE
SIMILAR TO THE ONES IT MADE AND WE REJECTED IN ATCHISON.  THOUGH THE
CITY ARGUES THAT SOME OF THE CHALLENGED PROVISIONS OF THE ORDINANCE DO
NOT APPLY TO TRANSFER,  (FN12)  THE COURT OF APPEALS CLEARLY CONSIDERED
THEM APPLICABLE.  THOUGH THE CITY ARGUES THAT IT DOES NOT RETAIN AS
MUCH POWER TO DENY TRANSFER A LICENSE AS TRANSFER FEARS,  (FN13)  IT IS
CLEAR THAT "THE CITY CLAIMS AT LEAST SOME POWER  ...  TO DECIDE WHETHER
A MOTOR CARRIER MAY TRANSPORT PASSENGERS FROM ONE STATION TO ANOTHER." 
357 U.S., AT 85.  THAT WAS ENOUGH IN ATCHISON TO ENABLE TRANSFER TO
ATTACK THE PUBLIC-CONVENIENCE-AND-NECESSITY REQUIREMENT, EVEN THOUGH
THE CITY THERE DISCLAIMED ANY POWER TO DENY A LICENSE BECAUSE OF
ECONOMIC CONSIDERATIONS.  IT IS ENOUGH HERE.  IT IS DIFFICULT TO
IMAGINE A CONTROVERSY MORE ACTUAL, ALIVE, AND RIPE THAN THIS ONE.  IT
HAS LASTED FOR MORE THAN A DECADE.  THOUGH TRANSFER OBTAINED ITS 1960
LICENSES AFTER IT FILED THIS LAWSUIT TO CHALLENGE THE ORDINANCE, IT HAS
CONTINUED TO OPERATE ONLY BY PAYING THE LICENSE FEES INTO COURT.  THE
CITY HAS CONTINUALLY - AND EVEN WHILE THIS CASE WAS PENDING - AMENDED
ITS ORDINANCE TO REGULATE TRANSFER FURTHER AND HAS CONTINUALLY DEMANDED
THAT TRANSFER FULLY COMPLY WITH THE ORDINANCE.  THOUGH THE CITY NOW
DISCLAIMS ANY POWER TO "STOP" TRANSFER'S OPERATIONS, IT DOES NOT GIVE
UP ITS POWER UNDER THE ORDINANCE TO FINE TRANSFER AND ARREST ITS
DRIVERS FOR OPERATING WITHOUT LICENSES OR ITS POWER TO REVOKE FOR
DISCRETIONARY REASONS ALL LICENSES WHICH TRANSFER MAY OBTAIN.  (FN14)
IN SHORT, ALTHOUGH TRANSFER CONTINUES TO OPERATE, IT IS ONLY AT THE
CITY'S RELUCTANT SUFFERANCE.  (FN15)  IF THE ORDINANCE IS INVALID
INSOFAR AS IT APPLIES TO TRANSFER, THEN, AS WE SAID IN ATCHISON, "THAT
COMPANY WAS NOT OBLIGATED TO APPLY FOR A  ...  LICENSE AND SUBMIT TO
THE ADMINISTRATIVE PROCEDURES INCIDENT THERETO BEFORE BRINGING THIS
ACTION."  357 U.S., AT 89. 

SECOND.  THE RATIONALE OF ATCHISON COMPELS OUR HOLDING THAT THE
PROVISIONS OF THE ORDINANCE NOW CHALLENGED BY TRANSFER CANNOT BE
VALIDLY APPLIED TO IT.  IN ATCHISON, RECOGNIZING THAT TRANSFER'S
"SERVICE IS AN INTREGAL PART OF INTERSTATE RAILROAD TRANSPORTATION
AUTHORIZED AND SUBJECT TO REGULATION UNDER THE INTERSTATE COMMERCE
ACT," ID., AT 89, WE POINTED TO VARIOUS PROVISIONS OF THE ACT  (FN16)
WHICH IN OUR VIEW COMPLETELY PRECLUDED THE CITY "FROM EXERCISING ANY
VETO POWER OVER SUCH TRANSFER SERVICE," ID., AT 85.  THE ACT, AS WE
SAID IN ATCHISON, GIVES THE RAILROADS, NOT THE CITY, THE "DISCRETION TO
DETERMINE WHO MAY TRANSFER INTERSTATE PASSENGERS AND BAGGAGE BETWEEN
RAILROAD TERMINALS."  ID., AT 84-85.  THAT POWER, THAT DISCRETION, IS
PRECISELY WHAT THE COMPREHENSIVE LICENSING SCHEME OF THE AMENDED
ORDINANCE PURPORTS TO RESERVE TO THE CITY.  IT MATTERS NOT THAT THE
CITY NO LONGER SEEKS TO EXERCISE THAT POWER BY REQUIRING A SHOWING OF
PUBLIC CONVENIENCE AND NECESSITY.  THE TOTAL EFFECT OF THE CURRENT
ORDINANCE ON TRANSFER'S OPERATIONS AND THE BURDENS IT PLACES ON
INTERSTATE COMMERCE ARE THE SAME.  AS WE RECOGNIZED IN ATCHISON, THE
CITY RETAINS AUTHORITY TO INSIST THAT TRANSFER OBEY "GENERAL SAFETY
REGULATIONS" SUCH AS TRAFFIC SIGNALS AND SPEED LIMITS.  ID., AT 88. 
MANY OF THE PROVISIONS OF THE CURRENT ORDINANCE, SUCH AS THE
REQUIREMENTS THAT TRANSFER MAINTAIN ITS PRINCIPAL PLACE OF BUSINESS IN
CHICAGO, HAVE ITS DRIVERS RESIDE IN CHICAGO, FILE ANNUALLY THE MOST
DETAILED FINANCIAL REPORTS, AND OPEN ITS BOOKS AND RECORDS FOR CITY
INSPECTION, BEAR NO RESEMBLANCE TO GENERAL SAFETY REGULATIONS SUCH AS
TRAFFIC SIGNALS AND SPEED LIMITS.  OTHER PROVISIONS, IF STANDING ALONE
AND ENFORCED BY MEANS OTHER THAN THIS PARTICULAR LICENSING PROGRAM,
MIGHT POSSIBLY BE JUSTIFIED AS SAFETY REGULATIONS.  (FN17)  CASTLE V.
HAYES FREIGHT LINES, 348 U.S. 61.  BUT WE NEED NOT DECIDE THAT QUESTION
NOW, FOR HERE EACH OF THESE PROVISIONS IS AN INTREGAL PART OF, AND
CANNOT BE DIVORCED FROM, THE COMPREHENSIVE LICENSING SCHEME THAT THE
CITY SEEKS TO IMPOSE AS A WHOLE ON TRANSFER.  SEE ADAMS EXPRESS CO. V.
NEW YORK, 232 U.S. 14.  HERE THE CITY SEEKS TO ENFORCE EACH AND ALL OF
THESE RELATED REQUIREMENTS BY DENIAL OF A LICENSE FOR NONCOMPLIANCE AND
THEN CRIMINAL SANCTIONS FOR OPERATION WITHOUT A LICENSE.  THIS IS THE
"VETO POWER" WHICH ATCHISON HELD THE CITY MAY NOT EXERCISE.  REVERSED. 

FN1  SEC 28-2.  (THE PROVISIONS HEREIN CITED ARE FROM THE CURRENT
MUNICIPAL CODE.) 

FN2  NO VEHICLE MAY BE LICENSED UNTIL IT HAS BEEN INSPECTED BY THE
CITY AND FOUND TO BE "IN SAFE OPERATING CONDITION AND TO HAVE ADEQUATE
...  FACILITIES WHICH ARE CLEAN AND IN GOOD REPAIR FOR THE COMFORT AND
CONVENIENCE OF PASSENGERS" (SEC 28-4), UNLESS IT HAS AT LEAST TWO DOORS
ON EACH SIDE (SEC. 28-4.1), AND UNLESS THE LICENSEE HAS A SPECIFIED
AMOUNT OF PUBLIC LIABILITY, PROPERTY DAMAGE, AND WORKMEN'S COMPENSATION
INSURANCE EVIDENCED BY POLICIES FILED WITH THE CITY (SEC 28-12).  THE
VALIDITY OF THESE PROVISIONS IS NOT SPECIFICALLY CHALLENGED BY
TRANSFER. 

FN3  SECTION 28-7 IMPOSES AN ANNUAL FEE OF $40 FOR EACH TERMINAL
VEHICLE, CLEARLY DEFINED IN SEC. 28-1(P) TO INCLUDE TRANSFER'S
VEHICLES, AND PROVIDES THAT SUCH FEE "SHALL BE APPLIED TO THE COST OF
ISSUING SUCH LICENSE, INCLUDING, WITHOUT BEING LIMITED TO, THE
INVESTIGATIONS, INSPECTIONS AND SUPERVISION NECESSARY THEREFOR, AND TO
THE COST OF REGULATING ALL OPERATIONS OF PUBLIC PASSENGER VEHICLES  ...
." 

FN4 PROVISIONS OF CHAPTER 28 REQUIRE THAT DRIVERS BE PUBLIC
CHAUFFEURS LICENSED BY THE CITY, SEC. 28-1(L), 28-9, AND SEVERAL
PROVISIONS OF CHAPTER 28.1 APPEAR TO MAKE RESIDENCE IN THE CITY A
CONDITION TO BEING LICENSED AS A CHAUFFEUR, E.G., SECS. 28.1-3, 28.1-9,
AND 28.1-14. 

FN5  SECTION 28-5.1, ADDED FOR THE FIRST TIME IN 1959. 

FN6  SECTION 28-5, DESCRIBING THE INFORMATION TO BE CONTAINED IN THE
APPLICATION, WAS AMENDED IN 1959 TO PROVIDE: 

"IF THE APPLICANT IS AFFILIATED OR TO BECOME AFFILIATED OR IDENTIFIED
WITH ANY PERSON (DEFINED ELSEWHERE TO INCLUDE A CORPORATION) BY  ...
SERVICE AGREEMENT, THE APPLICATION SHALL CONTAIN THE FULL NAME, CHICAGO
BUSINESS ADDRESS AND TELEPHONE NUMBER OF SAID AFFILIATE, AND A COPY OF
THE AGREEMENT WITH SAID AFFILIATE, IF ANY, SHALL BE FILED WITH THE
APPLICATION." 

SINCE TRANSFER OPERATES UNDER A SERVICE CONTRACT WITH THE RAILROADS,
IT IS CONCEIVABLE THAT THE RAILROADS MIGHT BE CONSIDERED AFFILIATES OF
TRANSFER.  HOWEVER, IT IS CLEAR THAT THE PROVISIONS OF THE ORDINANCE
REQUIRING AN AFFILIATE TO MAINTAIN ITS PRINCIPAL PLACE OF BUSINESS IN
CHICAGO, TO REGISTER WITH THE COMMISSIONER, TO CARRY CERTAIN INSURANCE,
AND TO COMPLY WITH ALL PROVISIONS OF THE ORDINANCE AND RULES ISSUED BY
THE COMMISSIONER, SECS 28-5.1, 28-12.1, 28-13.1, CANNOT BE VALIDLY
APPLIED TO THE RAILROADS, AND THE CITY DOES NOT NOW SUGGEST THAT THEY
CAN. 

FN7  SEC 28-6: 

"UPON RECEIPT OF AN APPLICATION FOR A PUBLIC PASSENGER VEHICLE
LICENSE THE COMMISSIONER SHALL CAUSE AN INVESTIGATION TO BE MADE OF THE
CHARACTER AND REPUTATION OF THE APPLICANT AS A LAW ABIDING CITIZEN; THE
FINANCIAL ABILITY OF THE APPLICANT TO RENDER SAFE AND COMFORTABLE
TRANSPORTATION SERVICE, TO MAINTAIN OR REPLACE THE EQUIPMENT FOR SUCH
SERVICE AND TO PAY ALL JUDGMENTS AND AWARDS WHICH MAY BE RENDERED FOR
ANY CAUSE ARISING OUT OF THE OPERATION OF A PUBLIC PASSENGER VEHICLE
DURING THE LICENSE PERIOD.  IF THE COMMISSIONER SHALL FIND THAT THE
APPLICATION, AND ALL OTHER STATEMENTS AND DOCUMENTS REQUIRED TO BE
FILED WITH SAID APPLICATION HAVE BEEN PROPERLY EXECUTED, AND THAT THE
APPLICANT IS QUALIFIED TO PURSUE THE OCCUPATION OF A CABMAN OR COACHMAN
(DEFINED IN SEC. 28-1(M) TO INCLUDE THE PROPRIETOR OF A TERMINAL
VEHICLE), THE COMMISSIONER SHALL ISSUE TO HIM AND IN HIS NAME A LICENSE
FOR EACH PUBLIC PASSENGER VEHICLE APPLIED FOR, TO TERMINATE ON THE 31ST
DAY OF DECEMBER FOLLOWING THE DATE OF ISSUE, PROVIDED THAT EACH SAID
VEHICLE IS REGISTERED IN APPLICANT'S NAME AND IS IN SAFE AND PROPER
CONDITION AT THE TIME THE LICENSE IS ISSUED." 

FN8  PRIOR TO 1963 A LICENSE WAS SUBJECT TO DISCRETIONARY REVOCATION
ONLY IF IT WAS OBTAINED BY AN APPLICATION IN WHICH A MATERIAL FACT WAS
OMITTED OR STATED FALSELY.  SEC 28-15.1.  THIS SECTION WAS AMENDED IN
1963 TO AUTHORIZE REVOCATION ALSO WHERE A LICENSE FAILS "TO CARRY OUT
ANY REPRESENTATION MADE TO THE COMMISSIONER BEFORE THE ISSUANCE OF SUCH
LICENSE,"  AND TO MAKE CLEAR THAT REVOCATION UNDER THIS SECTION MAY
EXTEND TO ALL LICENSES HELD BY A PERSON WHO OBTAINS ANY SINGLE LICENSE
BY MISREPRESENTATION. 

UNDER SEC 28-14, THE CITY'S VEHICLE COMMISSIONER MAY SUSPEND A
LICENSE AT ANY TIME THAT A VEHICLE BECOMES "UNSAFE FOR OPERATION OR
...  UNFIT FOR PUBLIC USE," AND "IN DETERMINING WHETHER ANY  ...
VEHICLE IS UNFIT FOR PUBLIC USE THE COMMISSIONER SHALL GIVE
CONSIDERATION TO ITS EFFECT ON THE HEALTH, COMFORT AND CONVENIENCE OF
PASSENGERS AND ITS PUBLIC APPEARANCE ON THE STREETS OF THE CITY." 
FN9  SEC 28-32. 

FN10  THE CITY ALSO ORDERED TRANSFER'S DRIVERS TO SUBMIT TO MEDICAL
EXAMINATIONS AND FINGERPRINTING. 

FN11  SEC 28-30.1: 

"EVERY CABMAN, CORPORATION AND AFFILIATE SHALL KEEP AND PROVIDE
ACCURATE BOOKS AND RECORDS OF ACCOUNT OF HIS OPERATIONS AT HIS PLACE OF
BUSINESS IN THE CITY.  ON OR BEFORE MAY 1 OF OF EACH YEAR, EVERY
CABMAN, CORPORATION AND AFFILIATE SHALL FILE WITH THE COMMISSIONER A
PROFIT AND LOSS STATEMENT FOR THE PRECEDING CALENDAR YEAR, SHOWING ALL
HIS EARNINGS AND EXPENDITURES FOR OPERATION, MAINTENANCE AND REPAIR OF
PROPERTY, DEPRECIATION EXPENSE, PREMIUMS PAID FOR WORKMEN'S
COMPENSATION AND PUBLIC LIABILITY INSURANCE, AND TAXES PAID FOR
UNEMPLOYMENT INSURANCE AND SOCIAL SECURITY, AND ALL STATE AND LOCAL
LICENSE FEES, PROPERTY TAXES AND FEDERAL INCOME TAXES, AND A BALANCE
SHEET TAKEN AT THE CLOSE OF SAID YEAR. 

"THE COMMISSIONER  ...  SHALL HAVE ACCESS TO THE PROPERTY, BOOKS,
CONTRACTS, ACCOUNTS AND RECORDS DURING NORMAL BUSINESS HOURS AT SAID
PLACE OF BUSINESS, FOR SUCH INFORMATION AS MAY BE REQUIRED FOR THE
EFFECTIVE ADMINISTRATION AND ENFORCEMENT OF THE PROVISIONS OF THIS
CHAPTER  ...  . 

"IN ADDITION TO THE FOREGOING REPORTS, EACH CABMAN SHALL WITHIN
THIRTY DAYS AFTER THE SIX MONTHS' PERIOD ENDED DECEMBER 31 AND WITHIN
THIRTY DAYS AFTER THE SIX MONTHS' PERIOD ENDED JUNE 30 OF EACH YEAR
FILE A SWORN STATEMENT WITH THE COMMISSIONER SHOWING HIS GROSS FARES
COLLECTED AND HIS OPERATING EXPENSES FOR THE SIX MONTHS IMMEDIATELY
PRECEDING SAID DATES." 

THE LAST PARAGRAPH WAS ADDED IN 1963.  AS FIRST ENACTED IN 1959, THE

FN12  FOR INSTANCE, THE CITY ARGUES THAT SEC 28-30.1 DOES NOT APPLY
TO TRANSFER.  BUT, AS THE COURT OF APPEALS APPARENTLY RECOGNIZED, THE
1963 AMENDMENTS OF THIS SECTION MAKE ITS FIRST TWO PARAGRAPHS
APPLICABLE TO TRANSFER.  SEE NOTE 11, SUPRA. 

FN13  THE CITY ARGUES THAT ITS COMMISSIONER MAY ONLY CONSIDER THE SO
CALLED "SAFETY FACTORS" SPECIFICALLY ENUMERATED IN SEC 28-6 IN
DETERMINING WHETHER TRANSFER IS "QUALIFIED" TO PERFORM THE
INTERTERMINAL SERVICE.  SEE N. 7, SUPRA.  TRANSFER, PERHAPS
UNDERSTANDABLY, IS AFRAID THAT THE WORD "QUALIFIED" GIVES THE
COMMISSIONER UNLIMITED DISCRETION TO CONSIDER THE VERY SAME NONSAFETY
FACTORS THAT HE PREVIOUSLY COULD CONSIDER UNDER THE INVALID PUBLIC
CONVENIENCE-AND-NECESSITY PROVISION. 

FN14  AT THE SAME TIME THE CITY WAS ASSURING THE DISTRICT COURT THAT
ITS THREAT TO STOP TRANSFER WAS AN "IDLE" ONE, IT WAS ADDING A NEW
PROVISION TO THE ORDINANCE WHICH SEEMS CUSTOM-TAILORED TO MAKE
TRANSFER'S ALREADY PRECARIOUS POSITION MORE PRECARIOUS.  SECTION 28
31.2, ADDED IN 1963, PROVIDES: 

"NO LICENSE WHICH HAS BEEN REVOKED, SURRENDERED, CANCELLED OR NOT
APPLIED FOR WITHIN A PERIOD OF SEVEN MONTHS AFTER SUCH LICENSE
APPLICATION IS DUE, SHALL HEREAFTER BE ISSUED." 

FN15  THE CITY ARGUES THAT TRANSFER CANNOT CHALLENGE THE PRINCIPAL
PLACE-OF-BUSINESS REQUIREMENT BECAUSE TRANSFER NOW HAS ITS PRINCIPAL,
AND ONLY, PLACE OF BUSINESS IN CHICAGO.  THE PROVISION QUOTED IN N. 14,
SUPRA, MAKES IT CLEAR THAT NEITHER TRANSFER, WHICH MIGHT WANT TO CHANGE
ITS PLACE OF BUSINESS, NOR THE RAILROADS, WHICH MIGHT WANT TO HIRE
ANOTHER TRANSFER AGENT OR PERFORM THE SERVICE THEMSELVES, CAN AFFORD TO
MAKE ANY CHANGE PRIOR TO CHALLENGING THE PLACE-OF-BUSINESS
REQUIREMENT.  UNDER SEC 28-15, "IF ANY LICENSEE ABANDONS HIS  ...
PLACE OF BUSINESS IN THE CITY ...  ALL HIS LICENSES SHALL BE REVOKED." 
AFTER SUCH REVOCATION, NO NEW LICENSES MAY BE ISSUED. 

FN16  IN PARTICULAR, WE MENTIONED 49 U.S.C. SEC. 1(4) AND 3(4)
REQUIRING THE RAILROADS TO PROVIDE REASONABLE AND PROPER FACILITIES FOR
THE TRANSFER OF PASSENGERS BETWEEN TERMINALS, SEC. 15(3) GIVING THE
INTERSTATE COMMERCE COMMISSION POWER TO ESTABLISH SUCH SERVICE, AND
SEC. 302(C)(2) PROVIDING THAT THE INTERTERMINAL SERVICE CONDUCTED BY
ANY MOTOR CARRIER UNDER CONTRACT WITH A RAILROAD SHALL BE REGARDED AS
TRANSPORTATION PERFORMED BY THE RAILROAD AND SHALL BE SUBJECT TO THE
SAME COMPREHENSIVE SCHEME OF REGULATION WHICH APPLIES TO SUCH
TRANSPORTATION.  FURTHERMORE, UNDER A PROVISO OF SEC. 302(C), THE ICC
RETAINS POWER TO TREAT INTERTERMINAL SERVICE AS MOTOR CARRIER SERVICE
UNDER SEC 304 FOR THE PURPOSE OF REGULATING "QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE OF EMPLOYEES AND SAFETY OF OPERATION AND EQUIPMENT." 

ALTHOUGH, AT THE TIME WE DECIDED ATCHISON, THE ICC HAD NOT ADOPTED
ANY SPECIAL REGULATIONS FOR INTERTERMINAL TRANSFER SERVICE, WE THERE
NOTED THAT IT COULD DO SO AT ANY TIME UNDER THE ACT, ID., AT 86-87, AND
SINCE THEN, THE ICC HAS, INDEED, PROMULGATED UNDER SEC 304 CERTAIN
SAFETY REGULATIONS WHICH ARE SPECIFICALLY APPLICABLE TO MOTOR CARRIERS
ENGAGED IN SUCH SERVICE.  SEE GENERALLY 49 CFR SEC 190.1 ET SEQ. 

FN17  IN ATCHISON WE NOTED THAT THE CITY RETAINS AUTHORITY TO "EXACT
REASONABLE FEES FOR  ...  USE OF THE LOCAL STREETS."  ID., AT 88.  THE
LICENSE FEES EXACTED HERE, HOWEVER, WERE FOR THE PURPOSE OF ENFORCING
THIS INVALID LICENSING SCHEME.  SEE NOTE 3, SUPRA.  TRANSFER CANNOT BE
COMPELLED TO PAY THEM. 

MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT BELOW SUBSTANTIALLY FOR
THE REASONS GIVEN IN THE OPINION OF CHIEF JUSTICE HASTINGS FOR THE
COURT OF APPEALS, 358 F.2D 55. 
..END :














UNITED STATES V. FIRST CITY NAT. BANK 386 U.S. 361 


NO. 914.  ARGUED FEBRUARY 20-21, 1967.  - DECIDED MARCH 27, 1967.* - NO.
914; NO. 972, 262 F. SUPP. 397, REVERSED. 

*TOGETHER WITH NO. 972, UNITED STATES V. PROVIDENT NATIONAL BANK ET
AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA, ARGUED FEBRUARY 21, 1967. 


APPLICATION FOR APPROVAL OF TWO BANK MERGERS WAS MADE WITH THE
COMPTROLLER OF THE CURRENCY BY TWO BANKS IN HOUSTON AND TWO BANKS IN
PHILADELPHIA.  THE COMPTROLLER, APPLYING THE STANDARD OF THE BANK
MERGER ACT OF 1966, IN 12 U.S.C. SEC. 1828(C)(5)(B)(1964 ED., SUPP.
II), FOUND THAT THE ANTICOMPETITIVE EFFECT OF EACH MERGER WAS "CLEARLY
OUTWEIGHED IN THE PUBLIC INTEREST BY THE PROBABLE EFFECT OF THE
TRANSACTION IN MEETING THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE
SERVED."  HE THEREUPON APPROVED THE MERGERS NOTWITHSTANDING THE ADVERSE
REPORTS MADE TO HIM BY THE ATTORNEY GENERAL AND FEDERAL RESERVE SYSTEM
BOARD OF GOVERNORS THAT THE OVERALL EFFECTS OF THE MERGERS WOULD BE
SERIOUSLY ANTICOMPETITIVE.  THE UNITED STATES, ACTING UNDER SEC 7 OF
THE CLAYTON ACT AND WITHOUT REFERENCE TO THE 1966 ACT, THEREAFTER
BROUGHT THESE CIVIL ACTIONS AGAINST THE BANKS TO PREVENT THE MERGERS. 
THE COMPTROLLER INTERVENED AND MOVED TO DISMISS THE COMPLAINTS AS NOT
STATING FACTS SUFFICIENT TO SUPPORT A CAUSE OF ACTION.  THE DISTRICT
COURTS, HOLDING THAT THE GOVERNMENT HAD THE BURDEN, WHICH IT HAD NOT
SATISFIED, OF SHOWING THAT THE MERGERS DID NOT COME WITHIN THE
EXCEPTION EMBRACED BY SEC. 1828(C)(5)(B), DISMISSED THE COMPLAINTS AND
DISSOLVED THE STATUTORY STAYS OF THE EFFECTIVENESS OF THE COMPTROLLER'S
APPROVALS OF THE MERGERS.  HELD: 

1.  SINCE AN ACTION CHALLENGING A BANK MERGER LIES UNDER THE
ANTITRUST LAWS, THE GOVERNMENT'S FAILURE TO BASE ITS ACTIONS ON THE
BANK MERGER ACT OF 1966 DOES NOT CONSTITUTE A DEFECT IN PLEADING.   PP.
363-364. 

2.  THE DEFENDANT BANKS IN AN ACTION TO PREVENT THEIR MERGERS AS
BEING ANTICOMPETITIVE HAVE THE BURDEN OF PROVING THAT THEY COME WITHIN
THE EXCEPTION IN THE 1966 ACT WHICH ALLOWS A MERGER WHERE ITS ADVERSE
EFFECTS ARE OUTWEIGHED BY CONSIDERATIONS OF COMMUNITY CONVENIENCE AND
NEED.  P. 366. 

3.  THE COURT UNDER THE 1966 ACT, WHICH PROVIDES FOR DE NOVO JUDICIAL
REVIEW OF THE ISSUES PRESENTED, SHALL MAKE AN INDEPENDENT DETERMINATION
OF THE LEGALITY OF A BANK MERGER AND NOT MERELY REVIEW THE BANKING
AGENCY'S ACTION TO DETERMINE WHETHER IT IS SUPPORTED BY SUBSTANTIAL
EVIDENCE.  PP. 366-370. 

4.  THE STAYS OF THE EFFECTIVENESS OF THE MERGER SHOULD CONTINUE
PENDING TERMINATION OF THE ANTITRUST LITIGATION.  PP. 370-371. 

UNITED STATES V. FIRST CITY NATIONAL BANK OF HOUSTON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CIVIL SUITS WERE FILED BY THE UNITED STATES UNDER SEC 7 OF THE
CLAYTON ACT, 38 STAT.  731, AS AMENDED, 64 STAT. 1125, 15 U.S.C. SEC
18, TO PREVENT TWO BANK MERGERS - ONE IN TEXAS BETWEEN THE FIRST CITY
NATIONAL BANK OF HOUSTON AND THE SOUTHERN NATIONAL BANK OF HOUSTON, AND
ONE IN PENNSYLVANIA BETWEEN THE PROVIDENT NATIONAL BANK AND THE CENTRAL
PENN NATIONAL BANK, BOTH IN PHILADELPHIA. 

THE COMPTROLLER OF THE CURRENCY APPROVED THE MERGERS UNDER THE BANK
MERGER ACT OF 1966, 80 STAT. 7, 12 U.S.C. SEC. 1828(C)(1964 ED., SUPP.
II).  THE UNITED STATES THEREUPON BROUGHT THESE SUITS IN THE RESPECTIVE
DISTRICT COURTS AND THE COMPTROLLER INTERVENED IN THEM.  THE DISTRICT
COURTS DISMISSED THE COMPLAINTS.  NO. 914 (UNREPORTED); NO. 972, 262 F.
SUPP.  397.  THE UNITED STATES APPEALED, 32 STAT. 823, AS AMENDED, 15
U.S.C. SEC 29, AND WE NOTED PROBABLE JURISDICTION, 385 U.S. 1023,
1024. 

           I. 

IT IS SUGGESTED THAT THE COMPLAINTS ARE DEFECTIVE IN THAT THEY FAIL
TO STATE THAT THE ACTIONS ARE BROUGHT UNDER THE BANK MERGER ACT OF
1966, DO NOT EVEN MENTION THE ACT, AND THAT, THEREFORE, THESE CASES
SHOULD BE REMANDED TO ALLOW THE GOVERNMENT TO AMEND THE COMPLAINTS. 

THE BANK MERGER ACT OF 1966 PROVIDES THAT "ANY ACTION BROUGHT UNDER
THE ANTITRUST LAWS" SHALL BE BROUGHT WITHIN A SPECIFIED TIME (12 U.S.C.
SEC 1828 (C)(7)(A)); IT ALSO SPECIFIES THE STANDARDS TO BE APPLIED BY A
COURT IN A JUDICIAL PROCEEDING CHALLENGING A BANK MERGER "ON THE GROUND
THAT THE MERGER  ...  CONSTITUTED A VIOLATION OF ANY ANTITRUST LAWS
OTHER THAN SECTION 2 OF THE SHERMAN ACT" (12 U.S.C. SEC.
1828(C)(7)(B)); AND IT PROVIDES IMMUNITY FROM SUCH AN ATTACK IF THOSE
STANDARDS ARE MET.  SECTION 1828(C)(8) PROVIDES THAT, "FOR THE PURPOSES
OF SEC. 1828(C), THE TERM 'ANTITRUST LAW' MEANS  ...  THE SHERMAN ACT,
THE CLAYTON ACT, AND ANY OTHER ACTS IN PARI MATERIA."  THUS, AN ACTION
CHALLENGING A BANK MERGER ON THE GROUND OF ITS ANTICOMPETITIVE EFFECTS
IS BROUGHT UNDER THE ANTITRUST LAWS.  ONCE AN ACTION IS BROUGHT UNDER
THE ANTITRUST LAWS, THE BANK MERGER ACT PROVIDES A NEW DEFENSE OR
JUSTIFICATION TO THE MERGER'S PROPONENTS - "THAT THE ANTICOMPETITIVE
EFFECTS OF THE PROPOSED TRANSACTION ARE CLEARLY OUTWEIGHED IN THE
PUBLIC INTEREST BY THE PROBABLE EFFECT OF THE TRANSACTION IN MEETING
THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE SERVED."  12 U.S.C.
SEC. 1828(C)(5)(B).  THERE IS NO INDICATION THAT AN ACTION CHALLENGING
A MERGER ON THE GROUND OF ITS ANTICOMPETITIVE EFFECTS IS BOTTOMED ON
THE BANK MERGER ACT RATHER THAN ON THE ANTITRUST LAWS.  WHAT IS
APPARENT IS THAT CONGRESS INTENDED THAT A DEFENSE OR JUSTIFICATION BE
AVAILABLE ONCE IT HAD BEEN DETERMINED THAT A TRANSACTION WOULD HAVE
ANTICOMPETITIVE EFFECTS, AS JUDGED BY THE STANDARDS NORMALLY APPLIED IN
ANTITRUST ACTIONS.  THUS, THE GOVERNMENT'S FAILURE TO BASE THE ACTIONS
ON THE BANK MERGER ACT OF 1966 DOES NOT CONSTITUTE A DEFECT IN ITS
PLEADINGS.  NOR IS THE GOVERNMENT'S FAILURE TO MENTION THE BANK MERGER
ACT FATAL, FOR, AS WE SHALL SEE, THE OFFSETTING COMMUNITY "CONVENIENCE
AND NEEDS," AS SPECIFIED IN 12 U.S.C. SEC. 1828(C)(5)(B), MUST BE
PLEADED AND PROVED BY THE DEFENDERS OF THE MERGER. 

                                        II. 

AN APPLICATION FOR APPROVAL OF THE TEXAS MERGER WAS MADE TO THE
COMPTROLLER OF THE CURRENCY PURSUANT TO 12 U.S.C. SEC. 1828(C)(5)(B),
WHICH PROVIDES THAT HE SHALL NOT APPROVE THE MERGER "WHOSE EFFECT IN
ANY SECTION OF THE COUNTRY MAY BE SUBSTANTIALLY TO LESSEN COMPETITION,
OR TO TEND TO CREATE A MONOPOLY, OR WHICH IN ANY OTHER MANNER WOULD BE
IN RESTRAINT OF TRADE, UNLESS HE FINDS THAT THE ANTICOMPETITIVE EFFECTS
OF THE PROPOSED TRANSACTION ARE CLEARLY OUTWEIGHED IN THE PUBLIC
INTEREST BY THE PROBABLE EFFECT OF THE TRANSACTION IN MEETING THE
CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE SERVED."  REQUESTS WERE
MADE OF THE ATTORNEY GENERAL AND THE FEDERAL RESERVE BOARD PURSUANT TO
12 U.S.C. SEC. 1828(C)(4) FOR THEIR VIEWS AND BOTH SUBMITTED REPORTS TO
THE COMPTROLLER THAT THE MERGER WOULD HAVE SERIOUS ANTICOMPETITIVE
EFFECTS.  THE COMPTROLLER NONETHELESS APPROVED IT. 

THE SAME PROCEDURE WAS FOLLOWED IN THE PENNSYLVANIA CASE, AND THE
ATTORNEY GENERAL AND FEDERAL RESERVE SUBMITTED ADVERSE REPORTS. 
NONETHELESS THE COMPTROLLER APPROVED THIS MERGER ALSO.  AND, AS WE HAVE
SAID, THESE CIVIL SUITS WERE INSTITUTED TO ENJOIN THE MERGERS UNDER SEC
7 OF THE CLAYTON ACT. 

SUCH ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION."  THE BANK
MERGER ACT OF 1966 DID NOT CHANGE THAT STANDARD OR THE MACHINERY FOR
OBTAINING PRIOR APPROVAL OF THE COMPTROLLER AND A PRELIMINARY
EXPRESSION OF VIEWS BY THE ATTORNEY GENERAL AND THE FEDERAL RESERVE BUT
IT ADDED AN ADDITIONAL STANDARD FOR THE COMPTROLLER.  SECTION
1828(C)(5)(B) SAYS, AS ALREADY NOTED, THAT NO MERGER SHALL BE APPROVED
WHERE THE EFFECT "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION" UNLESS
THE RESPONSIBLE AGENCY, IN THIS CASE THE COMPTROLLER, "FINDS THAT THE
ANTICOMPETITIVE EFFECTS OF THE PROPOSED TRANSACTION ARE CLEARLY
OUTWEIGHED IN THE PUBLIC INTEREST BY THE PROBABLE EFFECT OF THE
TRANSACTION IN MEETING THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE
SERVED."  AND THAT SUBSECTION GOES ON TO SAY:  "IN EVERY CASE, THE
RESPONSIBLE AGENCY SHALL TAKE INTO CONSIDERATION THE FINANCIAL AND
MANAGERIAL RESOURCES AND FUTURE PROSPECTS OF THE EXISTING AND PROPOSED
INSTITUTIONS, AND THE CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE
SERVED." 

ATTACKING A MERGER ON THE GROUND THAT IT VIOLATES THE ANTITRUST LAWS
"THE STANDARDS APPLIED BY THE COURT SHALL BE IDENTICAL WITH" THOSE THE
BANKING AGENCIES MUST APPLY.  AND 12 U.S.C. SEC. 1828(C)(7)(A) STATES
THAT "IN ANY SUCH ACTION, THE COURT SHALL REVIEW DE NOVO THE ISSUES
PRESENTED." 

ANTITRUST ACTION IN THE COURTS "SHALL STAY THE EFFECTIVENESS OF THE
AGENCY'S APPROVAL UNLESS THE COURT SHALL OTHERWISE SPECIFICALLY
ORDER." 

IT IS AROUND THESE NEW PROVISIONS OF THE 1966 ACT AND THEIR INTERPLAY
WITH SEC 7 OF THE CLAYTON ACT THAT THE PRESENT CONTROVERSY TURNS. 

FIRST IS THE QUESTION WHETHER THE BURDEN OF PROOF IS ON THE DEFENDANT
BANKS TO ESTABLISH THAT AN ANTICOMPETITIVE MERGER IS WITHIN THE
EXCEPTION OF 12 U.S.C. SEC. 1828(C)(5)(B) OR WHETHER IT IS ON THE
GOVERNMENT.  WE THINK IT PLAIN THAT THE BANKS CARRY THE BURDEN.  THAT
IS THE GENERAL RULE WHERE ONE CLAIMS THE BENEFITS OF AN EXCEPTION TO
THE PROHIBITION OF A STATUTE.  FEDERAL TRADE COMMISSION V. MORTON SALT
CO., 334 U.S. 37, 44-45.  THE HOUSE REPORT (NO. 1221, 89TH CONG., 2D
SESS.) MAKES CLEAR THAT ANTITRUST STANDARDS WERE THE NORM AND
ANTICOMPETITIVE BANK MERGERS, THE EXCEPTION:  " ...  THE BILL
ACKNOWLEDGES THAT THE GENERAL PRINCIPLE OF THE ANTITRUST LAWS - THAT
SUBSTANTIALLY ANTICOMPETITIVE MERGERS ARE PROHIBITED - APPLIES TO
BANKS, BUT PERMITS AN EXCEPTION IN CASES WHERE IT IS CLEARLY SHOWN THAT
A GIVEN MERGER IS SO BENEFICIAL TO THE CONVENIENCE AND NEEDS OF THE
COMMUNITY TO BE SERVED  ...  THAT IT WOULD BE IN THE PUBLIC INTEREST TO
PERMIT IT."  ID., AT 3-4. 

THE SPONSOR OF THE BILL THAT WAS FINALLY ENACTED, CONGRESSMAN PATMAN,
FLATLY STATED:  "IT SHOULD BE CLEARLY NOTED THAT THE BURDEN OF
ESTABLISHING SUCH 'CONVENIENCE AND NEEDS' IS ON THE BANKS SEEKING TO
MERGE; AND WHEN WE SAY CLEARLY OUTWEIGHED WE MEAN OUTWEIGHED BY THE
PREPONDERANCE OF THE EVIDENCE."  112 CONG. REC. 2333-2334 (FEB. 8,
1966). 

WE THEREFORE DISAGREE WITH THE VIEWS OF THE LOWER COURTS TO THE
CONTRARY. 

THE PROBLEM IS, OF COURSE, SUBTLY MERGED WITH THE QUESTION WHETHER
JUDICIAL REVIEW OF THE COMPTROLLER'S DECISION IS IN THE CATEGORY OF
OTHER ADMINISTRATIVE RULINGS WHICH ARE SUSTAINED UNLESS A COURT IS
PERSUADED THAT THE AGENCY'S ACTION IS CLEARLY UNSUPPORTED OR NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE. 

THE 1966 ACT WAS THE PRODUCT OF POWERFUL CONTENDING FORCES, EACH OF
WHICH IN THE AFTERMATH CLAIMED MORE OF A VICTORY THAN IT DESERVED,
LEAVING THE CONTROVERSY THAT FINALLY ABATED IN CONGRESS TO BE FINALLY
RESOLVED IN THE COURTS.  SO FAR AS REVIEW OF ADMINISTRATIVE AGENCY
ACTION IS CONCERNED, WE HAVE ONLY THIS TO SAY.  PRIOR TO THE 1966 ACT
ADMINISTRATIVE APPROVAL OF BANK MERGERS WAS NECESSARY.   YET IN AN
ANTITRUST ACTION LATER BROUGHT TO ENJOIN THEM WE NEVER STOPPED TO
CONSIDER WHAT WEIGHT, IF ANY, THE AGENCY'S DETERMINATION SHOULD HAVE IN
THE ANTITRUST CASE.  SEE UNITED STATES V. PHILADELPHIA NATIONAL BANK,
374 U.S. 321; UNITED STATES V. FIRST NAT. BANK, 376 U.S. 665. 
TRADITIONALLY IN ANTITRUST ACTIONS INVOLVING REGULATED INDUSTRIES, THE
COURTS HAVE NEVER GIVEN PRESUMPTIVE WEIGHT TO A PRIOR AGENCY DECISION,
FOR THE SIMPLE REASON THAT CONGRESS PUT SUCH SUITS ON A DIFFERENT AXIS
THAN WAS FAMILIAR IN ADMINISTRATIVE PROCEDURE.  UNITED STATES V. RADIO
CORPORATION OF AMERICA, 358 U.S. 334; UNITED STATES V. EL PASO NATURAL
GAS CO., 376 U.S. 651; UNITED STATES V. PHILADELPHIA NATIONAL BANK,
SUPRA; UNITED STATES V. FIRST NAT. BANK, SUPRA.  WE HAVE FOUND NO
INDICATION THAT CONGRESS DESIGNED JUDICIAL REVIEW DIFFERENTLY UNDER THE
1966 ACT THAN HAD EARLIER OBTAINED. 

IN FACT, AS ALREADY NOTED, "THE STANDARDS APPLIED BY THE COURT SHALL
BE IDENTICAL WITH THOSE THAT THE BANKING AGENCIES ARE DIRECTED TO
APPLY."  12 U.S.C. SEC. 1828(C)(7)(B).  THIS LANGUAGE DOES NOT EXPRESS
THE CONVENTIONAL STANDARD, I.E., WHETHER THE AGENCY'S ACTION IS
SUPPORTED BY SUBSTANTIAL EVIDENCE.  IN THE LATTER INSTANCE IT IS THE
AGENCY'S FUNCTION TO DETERMINE WHETHER THE LAW HAS BEEN VIOLATED, WHILE
IT IS THE COURTS' FUNCTION TO ASCERTAIN WHETHER, ABSENT ERROR IN
STATUTORY CONSTRUCTION, THE AGENCY'S ACTION HAS SUBSTANTIAL SUPPORT IN
THE EVIDENCE. 

THERE IS NO INDICATION THAT CONGRESS TOOK THAT COURSE HERE.  INDEED
THE 1966 ACT PROVIDES THAT THE COURT IN AN ANTITRUST ACTION "SHALL
REVIEW DE NOVO THE ISSUES PRESENTED."  12 U.S.C.  SEC. 1828(C)(7)(A). 
IT IS ARGUED THAT THE USE OF THE WORD "REVIEW" RATHER THAN "TRIAL"
INDICATES A MORE LIMITED SCOPE TO JUDICIAL ACTION.  THE WORDS "REVIEW"
AND "TRIAL" MIGHT CONCEIVABLY BE USED INTERCHANGEABLY.  THE CRITICAL
WORDS SEEM TO US TO BE "DE NOVO" AND "ISSUES PRESENTED."  THEY MEAN TO
US THAT THE COURT SHOULD MAKE AN INDEPENDENT DETERMINATION OF THE
ISSUES.  CONGRESSMAN PATMAN, THE CHAIRMAN OF THE HOUSE COMMITTEE THAT
DRAFTED THE ACT, IN SPEAKING OF THIS DE NOVO REVIEW, SAID THAT THE
COURT WOULD "COMPLETELY AND ON ITS OWN MAKE A DETERMINATION AS TO
WHETHER THE CHALLENGED BANK MERGER SHOULD BE APPROVED UNDER THE
STANDARD SET FORTH IN PARAGRAPH 5(B) OF THE BILL."  HE ADDED THAT THE
"COURT IS NOT TO GIVE ANY SPECIAL WEIGHT TO THE DETERMINATION OF THE
BANK SUPERVISORY AGENCY ON THIS ISSUE."  112 CONG. REC. 2335 (FEB. 8,
1966).  INDEED THE MOMENTUM OF JUDICIAL PRECEDENTS IS IN THAT
DIRECTION.  FOR IMMUNITY FROM ANTITRUST LAWS "IS NOT LIGHTLY IMPLIED." 
CALIFORNIA V. FEDERAL POWER COMMISSION, 369 U.S. 482, 485.  AND THE
GRANT OF ADMINISTRATIVE POWER TO GIVE IMMUNITY UNLESS THE AGENCY'S
DECISION IS ARBITRARY, CAPRICIOUS, OR UNSUPPORTED BY SUBSTANTIAL
EVIDENCE, WOULD BE A LONG STEP IN THAT DIRECTION.  MOREOVER, THE
COMPTROLLER'S ACTION IS INFORMAL, NO HEARINGS IN THE CUSTOMARY SENSE
HAVING BEEN HELD PRIOR TO THE 1966 ACT (UNITED STATES V. PHILADELPHIA
NATIONAL BANK, SUPRA, AT 351) AND NONE BEING REQUIRED BY CONGRESS IN
THE 1966 ACT.  WE WOULD THEREFORE HAVE TO ASSUME THAT CONGRESS MADE A
REVOLUTIONARY INNOVATION BY MAKING ADMINISTRATIVE ACTION WELL NIGH
CONCLUSIVE, EVEN THOUGH NO HEARING HAD BEEN HELD AND NO RECORD IN THE
CUSTOMARY SENSE CREATED. 

THE COURTS MAY FIND THE COMPTROLLER'S REASONS PERSUASIVE OR WELL NIGH
CONCLUSIVE.  BUT IT IS THE COURT'S JUDGMENT, NOT THE COMPTROLLER'S,
THAT FINALLY DETERMINES WHETHER THE MERGER IS LEGAL.  THAT WAS THE
PRACTICE PRIOR TO THE 1966 ACT; AND WE CANNOT FIND A PURPOSE ON THE
PART OF CONGRESS TO CHANGE THE RULE.  THIS CONCLUSION DOES NOT RAISE
SERIOUS CONSTITUTIONAL QUESTIONS BY MAKING THE COURTS PERFORM
NONJUDICIAL TASKS.  THE "RULE OF REASON," LONG PREVALENT IN THE
ANTITRUST FIELD (SEE, E.G., CHICAGO BOARD OF TRADE V. UNITED STATES,
246 U.S. 231), HAS BEEN ADMINISTERED BY THE COURTS.  A DETERMINATION OF
THE EFFECT ON COMPETITION WITHIN THE MEANING OF SEC 7 OF THE CLAYTON
ACT IS A FAMILIAR JUDICIAL TASK.  THE AREA OF "THE CONVENIENCE AND
NEEDS OF THE COMMUNITY TO BE SERVED," NOW IN FOCUS AS PART OF THE
DEFENSE UNDER THE 1966 ACT, IS RELATED, THOUGH PERHAPS REMOTELY, TO THE
FAILING-COMPANY DOCTRINE, LONG KNOWN TO THE COURTS IN ANTITRUST MERGER
CASES.  UNITED STATES V. DIEBOLD, INC., 369 U.S. 654.  THE APPRAISAL OF
COMPETITIVE FACTORS IS GRIST FOR THE ANTITRUST MILL.  SEE, E.G., UNITED
STATES V. PHILADELPHIA NATIONAL BANK, SUPRA, 357-367.  THE COURTS ARE
NOT LEFT AT LARGE AS PLANNING AGENCIES.  THE EFFECT ON COMPETITION IS
THE STANDARD; AND IT IS A FAMILIAR ONE.  (FN1)  IF THE ANTICOMPETITIVE
EFFECT IS ADVERSE, THEN IT IS TO BE EXCUSED ONLY IF "THE CONVENIENCE
AND NEEDS OF THE COMMUNITY TO BE SERVED" CLEARLY OUTWEIGH IT.  WE SEE
NO PROBLEMS IN BRINGING THESE STANDARDS INTO THE AREA OF JUDICIAL
COMPETENCE.  THERE ARE NO CONSTITUTIONAL PROBLEMS HERE NOT PRESENT IN
THE "RULE OF REASON" CASES.    THERE IS LEFT ONLY THE STAY ISSUE.  AS
WE HAVE SEEN, THE 1966 ACT PROVIDES THAT A TIMELY ANTITRUST ACTION
"SHALL STAY THE EFFECTIVENESS OF THE AGENCY'S APPROVAL UNLESS THE COURT
SHALL OTHERWISE SPECIFICALLY ORDER."  12 U.S.C. SEC. 1828(C)(7)(A). 
THE LOWER COURTS DISSOLVED THE STATUTORY STAYS ON DISMISSING THE
ANTITRUST SUITS.    OUR REMAND WILL DIRECT THAT THE STAYS CONTINUE
UNTIL THE HEARINGS BELOW ARE COMPLETED AND ANY APPEAL IS HAD.  A STAY
OF COURSE IS NOT MANDATORY UNDER ANY AND ALL CIRCUMSTANCES.  BUT ABSENT
A FRIVOLOUS COMPLAINT BY THE UNITED STATES, WHICH WE PRESUME WILL BE
INFREQUENT, A STAY IS ESSENTIAL UNTIL THE JUDICIAL REMEDIES HAVE BEEN
EXHAUSTED.  THE CAPTION OF THE 1966 ACT STATES THAT IT IS DESIGNED "TO
ESTABLISH A PROCEDURE FOR THE REVIEW OF PROPOSED BANK MERGERS SO AS TO
ELIMINATE THE NECESSITY FOR THE DISSOLUTION OF MERGED BANKS." 
MOREOVER, BANK MERGERS MAY NOT, ABSENT EMERGENCY CONDITIONS, BE
CONSUMMATED UNTIL 30 DAYS AFTER APPROVAL BY THE COMPTROLLER IN ORDER TO
ENABLE THE ATTORNEY GENERAL TO COMMENCE AN ANTITRUST ACTION, 12 U.S.C.
SEC. 1828(C)(6), WHICH, APART FROM EMERGENCY SITUATIONS, MUST BE
STARTED WITHIN 30 DAYS OF THE AGENCY'S APPROVAL, 12 U.S.C. SEC.
1828(C)(7)(A).  THE LEGISLATIVE HISTORY IS REPLETE WITH REFERENCES TO
THE DIFFICULTY OF UNSCRAMBLING TWO OR MORE BANKS AFTER THEIR MERGER. 
(FN2)  THE NORMAL PROCEDURE THEREFORE SHOULD BE MAINTENANCE OF THE
STATUS QUO UNTIL THE ANTITRUST LITIGATION HAS RUN ITS COURSE, LEST
CONSUMMATION TAKE PALCE AND THE UNSCRAMBLING PROCESS THAT CONGRESS
ABHORRED IN THE CASE OF BANKS BE NECESSARY.  REVERSED. 

FN1  12 U.S.C. SEC. 1828(C)(5)(B) PROVIDES, AS WE HAVE SEEN, THAT A
MERGER SHALL NOT BE APPROVED "WHOSE EFFECT IN ANY SECTION OF THE
COUNTRY MAY BE SUBSTANTIALLY TO LESSEN COMPETITION."  IT IS POINTED OUT
THAT THE STANDARD OMITS THE PHRASE "IN ANY LINE OF COMMERCE" WHICH IS
PRESENT IN SEC 7 OF THE CLAYTON ACT.  IT IS ARGUED THAT CONGRESS MEANT
THAT COMMERCIAL BANKING IS NO LONGER TO BE CONSIDERED AS AN AREA OF
EFFECTIVE COMPETITION AND THAT THE ACT ESTABLISHES IN BANKING "A MARKET
TEST MEASURABLE ONLY BY LARGER COMMERCIAL REALTIES." 

WE DO NOT REACH THIS QUESTION AND WE INTIMATE NO OBJECTION ON IT NOR
ANY VIEWS ON THE MERITS OF THESE MERGERS OR ON THE JUSTIFICATIONS THAT
ARE URGED IN THEIR SUPPORT.  ALL QUESTIONS EXCEPT THE PROCEDURAL ONES
TREATED IN THE OPINION ARE RESERVED. 

FN2  THE CHAIRMAN OF THE FEDERAL RESERVE SYSTEM TESTIFIED IN THE
HEARINGS THAT PRECEDED ENACTMENT OF THE BANK MERGER ACT OF 1966 THAT "A
FEDERAL COURT ORDER CANNOT RECREATE THE TWO BANKS THAT FORMERLY EXISTED
...  .  NO MATTER HOW ONE MAY FEEL ABOUT WHETHER THE MERGER SHOULD
HAVE TAKEN PLACE IN THE FIRST INSTANCE, THERE IS NO TURNING BACK.  TO
UNSCRAMBLE THE RESULTING BANK CLEARLY POSES SERIOUS PROBLEMS NOT ONLY
FOR THE BANK BUT FOR ITS CUSTOMERS AND THE COMMUNITY."  HEARINGS ON S.
1698 AND RELATED BILLS BEFORE THE SUBCOMMITTEE ON DOMESTIC FINANCE OF
THE HOUSE COMMITTEE ON BANKING AND CURRENCY, 89TH CONG., 1ST SESS.,
11.  THE PRESIDENT OF THE AMERICAN BANKERS ASSOCIATION DECLARED THAT
"'UNMERGING' A BANK AFTER THE TWO BANKS HAVE OPERATED AS A SINGLE UNIT
IS NIGHTMARISH EVEN IN THE ABSTRACT."  HEARINGS ON S. 1698 BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON BANKING AND CURRENCY, 89TH
CONG., 1ST SESS., 63.  SENATOR ROBERTSON STATED, "YOU ARE DEALING WITH
A PHYSICAL IMPOSSIBILITY," AND "THE COMMUNITY GETS HURT," WHEN
DIVESTITURE IS ATTEMPTED IN A BANK MERGER CASE.  ID., AT 4.  SENATOR
PROXMIRE SPOKE OF "THE AGONY AND THE INEQUITY AND THE FINANCIAL LOSS,
DISRUPTION OF THE ECONOMY IN THE COMMUNITY, OF BEING REQUIRED  ...  TO
UNSCRAMBLE."  ID., AT 202. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :



















B.&O.R. CO. V. UNITED STATES 386 U.S. 372 


NO. 642.  ARGUED JANUARY 9-10, 1967.  - DECIDED MARCH 27, 1967* - 259 F.
SUPP. 964, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 680, DELAWARE & HUDSON RAILROAD CORP. V. UNITED
STATES ET AL., NO. 691, ERIE-LACKAWANNA RAILROAD CO. V. UNITED STATES
ET AL., NO. 813, CITY OF SCRANTON ET AL. V. UNITED STATES ET AL., NO.
814, SHAPP V. UNITED STATES ET AL., AND NO. 815, CHICAGO & EASTERN
ILLINOIS RAILROAD CO. V. UNITED STATES ET AL., ALSO ON APPEAL FROM THE
SAME COURT. 


BY ORDER OF APRIL 6, 1966, THE ICC PERMITTED THE MERGER OF THE
PENNSYLVANIA AND THE NEW YORK CENTRAL RAILROADS, THE LARGEST AND THIRD
LARGEST RAILROADS IN THE NORTHEAST, PURSUANT TO SEC 5(2) OF THE
INTERSTATE COMMERCE ACT.  THE ICC FOUND THAT THE MERGER MIGHT DIVERT
SUBSTANTIAL TRAFFIC FROM THE ERIE-LACKAWANNA, DELAWARE AND HUDSON, AND
BOSTON AND MAINE RAILROADS, THREE SMALLER CARRIERS DESIGNATED AS
"PROTECTED RAILROADS."  THESE PROTECTED LINES HAD FILED APPLICATIONS
FOR INCLUSION NOT ONLY IN THE PENN-CENTRAL MERGER, BUT ALSO IN THE
NORFOLK & WESTERN-NICKEL PLATE MERGER, WHICH THE ICC HAD PREVIOUSLY
APPROVED.  IN THE LATTER CASE THE ICC RETAINED JURISDICTION TO CONSIDER
INCLUSION OF THE THREE LINES UPON EQUITABLE TERMS IF "FOUND CONSISTENT
WITH THE PUBLIC INTEREST" AND IT PROVIDED THAT CONSUMMATION OF THE
MERGER WOULD CONSTITUTE "IRREVOCABLE ASSENT" BY NORFOLK & WESTERN TO
SUCH INCLUSION.  THE APPLICATIONS FOR INCLUSION IN THE PENN-CENTRAL
SYSTEM HAVE BEEN HELD IN ABEYANCE PENDING DECISION ON INCLUSION IN
NORFOLK & WESTERN-NICKEL PLATE, PRESENTLY UNDER CONSIDERATION BY THE
ICC.  ON THE MERITS OF THE PENN-CENTRAL MERGER, THE ICC FOUND THAT THE
PROTECTED RAILROADS RENDERED ESSENTIAL SERVICE WHICH REQUIRED
PRESERVATION, AND CONCLUDED THAT IMMEDIATE CONSUMMATION OF THE MERGER
WOULD BE CONSISTENT WITH THE PUBLIC INTEREST IF "CONDITIONS ARE IMPOSED
TO OBVIATE IMPAIRMENT OR SERIOUS WEAKENING" OF THE THREE LINES. 
WITHOUT SUCH CONDITIONS OR THE INCLUSION OF THE PROTECTED ROADS IN ONE
OF THE MAJOR RAIL SYSTEMS, THE ICC FOUND THAT IT WAS DOUBTFUL IF THE
"THREE CARRIERS COULD WITHSTAND THE COMPETITION OF THE APPLICANTS
MERGED, AND, UNLESS THEY ARE PROTECTED DURING THE PERIOD NECESSARY TO
DETERMINE THEIR FUTURE, WE WOULD NOT AUTHORIZE CONSUMMATION AT THIS
TIME, EVEN THOUGH APPROVING THE MERGER."  THE ICC, SUA SPONTE,
SPECIFIED IN APPENDIX G CERTAIN CONDITIONS TO THE IMMEDIATE
CONSUMMATION OF THE MERGER "TO PREVENT ANY LOSS OF REVENUE OVER THE
THREE PROTECTED RAILROADS."  THESE CONDITIONS CONCERNED TRAFFIC
PRACTICES AND INDEMNIFICATION FOR LOSS OF INCOME.  ON SEPTEMBER 16,
1966, THE ICC MODIFIED ITS ORDER, APPARENTLY ON THE OBJECTION OF MOST
OF THE PARTIES, AND, THOUGH RETAINING THE TRAFFIC PRACTICES CONDITION,
IT LIFTED THE REVENUE INDEMNIFICATION CONDITION UNTIL FURTHER ORDER. 
ERIE-LACKAWANNA AND OTHER RAILROADS FILED SUIT SEEKING AN INTERLOCUTORY
INJUNCTION RESTRAINING THE CONSUMMATION OF THE MERGER.  A THREE-JUDGE
COURT DECLINED TO GRANT THE INJUNCTION.  HELD:  IN THE LIGHT OF ITS
FINDINGS AS TO THE NECESSITY FOR INTERIM PROTECTION FOR THE THREE
"PROTECTED RAILROADS," THE ICC ERRED IN WITHDRAWING ALL OF THE
PROTECTIVE CONDITIONS OF APPENDIX G SAVE THE TRAFFIC ONES AND
PERMITTING IMMEDIATE CONSUMMATION OF THE PENN-CENTRAL MERGER WITHOUT
DETERMINING THE ULTIMATE FATE OF THE THREE PROTECTED ROADS.  PP. 378
392. 

BALTIMORE & OHIO RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE SIX APPEALS INVOLVE THE VALIDITY OF AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION PERMITTING THE MERGER OF THE PENNSYLVANIA RAILROAD
COMPANY AND THE NEW YORK CENTRAL RAILROAD COMPANY (PENN-CENTRAL)
PURSUANT TO SEC 5(2) OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 41
STAT. 481, 49 U.S.C. SEC 5(2).  IN ITS ORIGINAL ORDER OF APRIL 6, 1966,
THE COMMISSION FOUND THAT THE MERGER MIGHT DIVERT A SUBSTANTIAL AMOUNT
OF TRAFFIC FROM THE ERIE-LACKAWANNA RAILROAD COMPANY (E-L), THE
DELAWARE AND HUDSON RAILROAD COMPANY (D&H) AND THE BOSTON AND MAINE
CORPORATION (B&M), THREE SMALLER COMPETING CARRIERS DESIGNATED AS THE
"PROTECTED RAILROADS" BY THE COMMISSION.  THESE PROTECTED RAILROADS HAD
FILED UNDER SEC 5(2)(D) OF THE ACT APPLICATIONS FOR INCLUSION IN BOTH
THIS MERGER AND IN NORFOLK & W. RY. CO. AND NEW YORK, C. & ST. L.R. CO.
- MERGER, 324 I.C.C. 1.  IN THE LATTER CASE INCLUSION OF E-L AND D&H
HAS BEEN RECOMMENDED AND, TOGETHER WITH B&M, IS PENDING BEFORE THE
COMMISSION.  THE APPLICATIONS OF THE PROTECTED ROADS IN THE PENN
CENTRAL PROCEEDING HAVE BEEN HELD IN ABEYANCE PENDING DECISION IN THE
NORFOLK PROCEEDING. 

ON THE MERITS OF THE PENN-CENTRAL MERGER, THE COMMISSION FOUND THAT
THE SERVICE THE PROTECTED RAILROADS "RENDER THEIR SHIPPERS IS ESSENTIAL
AND THE PUBLIC INTEREST DICTATES THAT SUCH SERVICE BE PRESERVED."  THE
COMMISSION CONCLUDED "THAT IMMEDIATE CONSUMMATION OF THE PROPOSED
MERGER WOULD BE CONSISTENT WITH THE PUBLIC INTEREST, IF CONDITIONS ARE
IMPOSED TO OBVIATE IMPAIRMENT OR SERIOUS WEAKENING" OF THE THREE
LINES.  WITHOUT SUCH CONDITIONS OR THE INCLUSION OF THE PROTECTED ROADS
IN A MAJOR SYSTEM, THE COMMISSION FURTHER FOUND, IT WOULD BE DOUBTFUL
IF THE "THREE CARRIERS COULD WITHSTAND THE COMPETITION OF THE
APPLICANTS MERGED, AND, UNLESS THEY ARE PROTECTED DURING THE PERIOD
NECESSARY TO DETERMINE THEIR FUTURE, WE WOULD NOT AUTHORIZE
CONSUMMATION AT THIS TIME, EVEN THOUGH APPROVING THE MERGER."  327
I.C.C. 475, 532.  IT, THEREFORE, APPLIED, SUA SPONTE, CERTAIN
CONDITIONS TO THE IMMEDIATE CONSUMMATION OF THE MERGER WHICH WERE
"DESIGNED TO PREVENT ANY LOSS OF REVENUE OVER THE THREE RAILROADS (THE
PROTECTED RAILROADS) AS A DIRECT RESULT OF IMMEDIATE CONSUMMATION OF
THIS MERGER."  ITS "APPROVAL OF THE MERGER FOR UNDELAYED CONSUMMATION"
WAS MADE "SUBJECT  ...  TO THE CONDITIONS SPECIFICALLY DESCRIBED IN
APPENDIX G," IBID., WHICH WAS ATTACHED AS AN APPENDIX TO THE APRIL 6,
1966, ORDER, AND WHICH WE LIKEWISE ATTACH AS AN APPENDIX HERE.  THE
COMMISSION, APPARENTLY BECAUSE OF THE NECESSITY FOR THE CONDITIONS AND
THE URGENCY OF THE MERGER, REQUIRED COMPLIANCE WITH APPENDIX G EVEN
THOUGH IT HAD NEITHER THE BENEFIT OF A REPORT FROM A HEARING EXAMINER
THEREON, NOR THE ADVANTAGE OF A HEARING BEFORE THE COMMISSION ITSELF. 
THESE CONDITIONS DETAILED THE PROTECTION WHICH MUST BE GIVEN THE
PROTECTED RAILROADS AND MADE THEM A PREREQUISITE TO THE CONSUMMATION OF
THE MERGER. 

THE COMMISSION, THEREFORE, NOT ONLY FOUND THAT PROTECTION OF THE
THREE RAILROADS WAS NECESSARY, BUT FIXED THE TERMS THEREOF AND REQUIRED
COMPLIANCE PRIOR TO PERMITTING THE MERGER.  THERE WAS NOTHING TENTATIVE
ABOUT APPENDIX G. THE CONDITIONS WERE DIVIDED INTO TWO GENERAL
CATEGORIES AND PROVIDED THAT: (1) ON TRAFFIC FOR WHICH THE PROTECTED
RAILROADS ARE "COMPETITIVE FACTORS"  (FN1) THE MERGED COMPANY SHALL
NOT, PENDING FINAL DETERMINATION OF THE INCLUSION PROCEEDINGS, PROVIDE
ANY NEW OR CHANGED ROUTING PRACTICE, FREIGHT RATES, OR SERVICE WHICH
WOULD DIVERT OR TEND TO DIVERT TRAFFIC FROM ROUTES IN WHICH THE
PROTECTED RAILROADS, OR ANY OF THEM, PARTICIPATE OR PARTICIPATED AT THE
TIME OF THE MERGER.  AND (2) THE PROTECTED RAILROADS WOULD BE
INDEMNIFIED BY THE MERGED COMPANY AGAINST REVENUE LOSSES BY REASON OF
THE MERGER.  APPENDIX G TO THE ORDER DETAILED THE MANNER IN WHICH SUCH
INDEMNITY WOULD BE CALCULATED AND PROVIDED FOR THE ACCELERATED
PROCESSING OF COMPLAINTS AS TO NEW OR CHANGED ROUTES, PRACTICES, RATES,
OR SERVICES.  SECTION 7 OF APPENDIX G PROVIDED THAT IF THE MERGED
COMPANY DID NOT ACCEDE TO ALL OF THE CONDITIONS, THE MERGER WOULD BE
DEFERRED FOR TWO YEARS OR "SUCH TIME AS THE COMMISSION MAY DETERMINE TO
BE NECESSARY TO PROTECT THE INTERESTS OF D&H, B&M AND E-L."  AND SEC 8
PROVIDED THAT THE CONDITIONS "SHALL BE CONSTRUED, ADMINISTERED AND
ENFORCED WITH THE VIEW TO PROTECTING THE E-L, D&H AND B&M AND THE
SHIPPING PUBLIC WHICH DEPENDS UPON THEM FOR TRANSPORTATION, AGAINST THE
EFFECTS OF THE MERGER FOR THE PERIOD AND PURPOSES SET FORTH ABOVE." 

THEREAFTER, AND WITHOUT A HEARING, BUT APPARENTLY ON THE OBJECTION OF
MOST OF THE PARTIES, THE COMMISSION ON SEPTEMBER 16, 1966, MODIFIED ITS
APRIL 6 ORDER AND REOPENED THE HEARING.  328 I.C.C. 304.  THE
OBJECTORS, AMONG OTHER THINGS, POINTED TO THE FACT THAT THE CONDITIONS
OF APPENDIX G WERE MADE WITHOUT ANY NOTICE OR HEARING AND WOULD CREATE
IRRECONCILABLE CONFLICTS BETWEEN THE PROTECTED CARRIERS AND OTHERS
ADVERSELY AFFECTED BY THE MERGER.  IN REOPENING THE HEARING THE
COMMISSION LIMITED IT TO THE CONDITIONS IMPOSED IN APPENDIX G, THE
PREVENTION OF POSSIBLE MANIPULATION OF SUCH CONDITIONS AND THE
ENLARGEMENT OF THE INDEMNITY PROVISION TO INCLUDE CAPITAL LOSS.  IN THE
REOPENING ORDER OF SEPTEMBER 16, 1966, THE COMMISSION LEFT INTACT ITS
ORDER OF APRIL 6, 1966, AS TO THE UNDELAYED CONSUMMATION OF THE MERGER,
CONTINUED IN EFFECT THE BAN ON NEW OR CHANGED ROUTES, PRACTICES, AND
RATES AS TO TRAFFIC IN WHICH ANY OF THE PROTECTED RAILROADS
PARTICIPATED, BUT LIFTED THE INDEMNIFICATION CONDITION UNTIL FURTHER
ORDER, AT WHICH TIME ANY SUCH PROVISION FOUND NECESSARY COULD BE MADE
RETROACTIVE TO THE DATE OF THE MERGER.  NONE OF THE PREVIOUS FINDINGS,
AS TO THE NECESSITY FOR THE IMMEDIATE IMPOSITION OF THE CONDITIONS
INCLUDED IN THE ORIGINAL ORDER, WERE AMENDED OR WITHDRAWN.  THE TRAFFIC
CONDITIONS ALONE WERE LEFT IN EFFECT. 

THIS SUIT WAS FILED ON SEPTEMBER 7, 1966, AND AROSE UPON THE
COMPLAINT OF E-L AND OTHER RAILROADS SEEKING AN INTERLOCUTORY
INJUNCTION TO RESTRAIN THE CONSUMMATION OF THE MERGER.  A THREE-JUDGE
COURT WAS CONVENED, 28 U.S.C. SEC 2284, AND THEREAFTER IT DECLINED, BY
A DIVIDED VOTE, TO GRANT THE INTERLOCUTORY INJUNCTION.  ERIE-LACKAWANNA
RAILROAD CO. V. UNITED STATES, 259 F. SUPP. 964.  THE APPELLANTS SOUGHT
A STAY FROM MR. JUSTICE HARLAN WHO REFERRED THE APPLICATION TO THE
COURT AND IT WAS GRANTED ON OCTOBER 18, 1966.  AT THE SAME TIME WE
EXPEDITED THE CASE FOR CONSIDERATION.  385 U.S. 914.  THE SOLE QUESTION
BEFORE US IS WHETHER, IN LIGHT OF THE FINDINGS AS TO THE NECESSITY FOR
INTERIM PROTECTION FOR THE SO-CALLED PROTECTED RAILROADS, THE
COMMISSION ERRED IN PERMITTING THE CONSUMMATION OF THE MERGER PRIOR TO
AND WITHOUT AWAITING DETERMINATION OF THE INCLUSION PROCEEDINGS.  WE
BELIEVE THAT THE COMMISSION ERRED IN APPROVING THE IMMEDIATE
CONSUMMATION OF THE MERGER WITHOUT DETERMINING THE ULTIMATE FATE OF THE
PROTECTED ROADS.  WE, THEREFORE, REVERSE THE JUDGMENT AND REMAND THE
CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO REMAND THE MATTER TO
THE COMMISSION FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS
OPINION. 

            I. 

QUESTIONS NOT HERE DECIDED. 

AT THE OUTSET WE MAKE IT CLEAR THAT WE DO NOT PASS ON THE VALIDITY OF
THE MERGER, THE SPECIAL CONDITIONS OF APPENDIX G, THE MODIFIED ORDER OF
THE COMMISSION, OR THE PERIPHERAL POINTS POSED BY THE VARIOUS PARTIES. 
WE HOLD ONLY THAT UNDER THE UNCONTRADICTED FINDINGS OF THE COMMISSION
IT WAS NECESSARY FOR IT TO CONCLUDE THE INCLUSION PROCEEDINGS, AS TO
THE PROTECTED RAILROADS, PRIOR TO PERMITTING CONSUMMATION OF THE
MERGER. 

                  II. 

THE MERGER, ITS BACKGROUND, ITS PARTICIPANTS AND RELATIVE POSITION. 

THE PENN-CENTRAL MERGER HAS BEEN UNDER STUDY AND DISCUSSION BY THE
COMMISSION FOR SOME 10 YEARS.  AFTER THE INITIAL STUDY WAS COMPLETED IN
1959, CENTRAL WITHDREW FROM THE PLAN AND BEGAN NEGOTIATIONS FOR A
MERGER WITH THE CHESAPEAKE AND OHIO RAILWAY COMPANY (C&O) FOR JOINT
CONTROL OF THE BALTIMORE AND OHIO RAILROAD COMPANY (B&O).  HOWEVER,
WHEN AT A LATER DATE C&O HAD CONTRACTED FOR THE PURCHASE OF SOME 61% OF
B&O STOCK, CENTRAL GAVE UP ITS PLAN AND RENEWED NEGOTIATIONS WITH
PENN.  THE TWO ROADS SIGNED AN AGREEMENT OF MERGER IN 1962.  THE NEW
YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY (NH) APPROACHED PENN AND
CENTRAL FOR INCLUSION IN THE PLAN BUT WAS GIVEN A DEAF EAR.  THE MERGER
AGREEMENT PROVIDED THAT ALL PROPERTIES, FRANCHISES, ETC. (PERMITTED BY
RESPECTIVE STATE LAW), WOULD BE TRANSFERRED TO THE MERGED COMPANY AND
APPROPRIATE STOCK EXCHANGE, DEBT ARRANGEMENTS, ETC., EFFECTED. 

AS THE COMMISSION FOUND, THE MERGER WOULD "CREATE AN HOUR-GLASS
SHAPED SYSTEM FLARED ON THE EAST FROM MONTREAL, CANADA, THROUGH BOSTON,
MASS., TO NORFOLK, VA., AND ON THE WEST FROM MACKINAW CITY, MICH.,
THROUGH CHICAGO, ILL., TO ST. LOUIS, MO."  327 I.C.C., AT 489.  IT
WOULD OPERATE SOME 19,600 MILES OF ROAD IN 14 STATES BETWEEN THE GREAT
LAKES, WITH A SPLASH IN CANADA ON THE NORTH, AND THE OHIO AND POTOMAC
RIVERS ON THE SOUTH.  AFTER THE TWO SYSTEMS ARE CONNECTED AS PLANNED
AND NEW AND EXPANDED YARDS ARE PROVIDED, THE MERGER WILL CONSOLIDATE
TRAINS NOW MOVING SEPARATELY BETWEEN THE SAME POINTS.  THE COMBINED
SYSTEMS WILL HAVE A SUBSTANTIAL AMOUNT OF PARALLEL TRACKAGE AND ROUTES,
WITH 160 COMMON POINTS OR JUNCTIONS.  TERMINALS WILL BE CONSOLIDATED,
PRESENT INTERCHANGES BETWEEN THE TWO SYSTEMS WILL BE ELIMINATED AND
ONLY THE MOST EFFICIENT YARDS AND FACILITIES OF THE RESPECTIVE SYSTEMS
WILL BE UTILIZED.  THE MERGER PLAN CALLS FOR 98 PROJECTS THAT WILL
INTERMESH THEIR LONG-HAUL TRAFFIC AT KEY POINTS, CREATING A NONSTOP
SERVICE BETWEEN THE PRINCIPAL CITIES WITH "LOCALS" COVERING THE
MULTIPLE-STOP ROUTES AND BRANCH LINES.  IT IS ESTIMATED THAT ENORMOUS
SAVINGS IN TRANSIT TIME CAN BE EFFECTED.  CERTAIN CHOSEN YARDS - SUCH
AS SELKIRK - WILL BE REMODELED AND MODERNIZED INTO ELECTRONICALLY
OPERATED YARDS WITH CAPACITIES OF FROM 5,000 TO 10,000 CARS PER DAY. 
THE THROUGH TRAINS TO THE WEST WILL BE FORMED AT SELKIRK AND THOSE FROM
THE WEST BROKEN UP FOR DISPATCH TO TERMINALS OR CONSIGNEES IN NEW
ENGLAND, NEW YORK, AND NORTHERN NEW JERSEY.  THE PLAN CALLS FOR SOME
NEW YORK CITY TRAFFIC TO BE ROUTED OVER CENTRAL'S HUDSON RIVER EAST
SHORE LINE TO LESSEN COST.  BY CONSOLIDATING TRAFFIC ON FAST THROUGH
LINES, FILLING OUT TRAINS, RE-ROUTING OVER THE MOST EFFICIENT ROUTES,
ELIMINATING SOME INTERCHANGES AND EFFECTING OTHER IMPROVEMENTS, THE
MERGED COMPANY WILL REDUCE BY 6,000,000 THE NUMBER OF TRAIN MILES
OPERATED.  A SINGLE-LINE SERVICE WILL BE OPERATED BETWEEN MORE POINTS,
WITH LESS CIRCUITY AND LESS SWITCHING.  THE PLAN ALSO CALLS FOR 31
DAILY TRAINS TO BE WITHDRAWN FROM THE PENNSYLVANIA WITH SEVEN NEW ONES
ADDED, LEAVING A TOTAL OF 319 TRAINS DAILY. 

THE PENNSYLVANIA IS THE LARGEST AND CENTRAL THE THIRD LARGEST
RAILROAD IN THE NORTHEASTERN REGION.   TOGETHER THE OPERATING REVENUE
OF THE TWO ROADS WAS OVER $1,500,000,000 IN 1965.  THEIR NET INCOME IN
1964 TOTALED ALMOST $57,000,000 AND IN 1965 RAN IN EXCESS OF
&75,000,000.  IN 1963 THE TOTAL NET WAS BARELY $16,000,000.  THE COST
OF OPERATION OF THE TWO SYSTEMS RUNS $90,000,000 A MONTH AND THEIR
WORKING CAPITAL WAS SOME $72,000,000 IN 1965.  AS OF DECEMBER 31, 1963,
THEIR COMBINED INVESTMENTS WERE $1,242,000,000.  THE PENNSYLVANIA AND
CENTRAL SYSTEMS ARE EACH MADE UP OF UNDERLYING CORPORATIONS.  AS OF THE
DATE OF THE EXAMINERS' REPORT THE MERGED COMPANY WOULD HAVE OWNERSHIP
INTEREST IN 182 CORPORATIONS AND 10 RAILROADS UNDER LEASE.  THIRTY-SIX
OF THE CORPORATIONS ARE RAIL CARRIERS, IN SIX OF WHICH THE MERGED
COMPANY WOULD HAVE A VOTING CONTROL.  ALL SIX ARE CLASS I RAILROADS. 
IT WOULD LIKEWISE CONTROL SIX CLASS II RAILROADS, FIVE SWITCHING AND
TERMINAL RAILROADS, HOLDING COMPANY, FIVE CAR-LEASING COMPANIES, FOUR
COMMON CARRIERS AND 34 NONCARRIER CORPORATIONS. 

THE NH  (FN2)  IS THE SIXTH LARGEST RAILROAD IN THE NORTHEASTERN
REGION AND THE LARGEST IN NEW ENGLAND.  ON A NATIONAL BASIS IT RANKS
FOURTH AMONG PASSENGER-CARRYING RAILROADS AND IS ONE OF THE LARGEST
NONTRUNKLINE FREIGHT ROADS.  IT HAS SOME 1,500 MILES OF RAILROAD IN
FOUR STATES - MASSACHUSETTS, RHODE ISLAND, CONNECTICUT, AND PART OF NEW
YORK.  NH HAS BEEN IN REORGANIZATION UNDER SEC 77 OF THE BANKRUPTCY
ACT, 47 STAT. 1474, AS AMENDED, 11 U.S.C.  SEC 205, SINCE 1961.  (FN3)
WHILE ITS GROSS REVENUES HAVE RUN IN EXCESS OF $120,000,000, IT HAS RUN
DEFICITS SINCE 1958.  DURING THE TRUSTEESHIP ITS DEFICITS HAVE RUN FROM
$12,700,000 IN 1962 TO $15,100,000 IN 1965. 

                                       III. 

THE PROTESTING PARTIES, THEIR SETTING IN THE NORTHEASTERN REGION AND
THEIR POSITION ON THE MERGER. 

ALTOGETHER SOME 200 PARTIES PARTICIPATED IN THE PROCEEDINGS BEFORE
THE COMMISSION, SOME IN SUPPORT OF AND OTHERS IN OPPOSITION TO THE
MERGER.  NONE OF THE APPELLANT RAILROADS CHALLENGE THE MERITS OF THE
MERGER; HOWEVER, APPELLANTS MILTON J. SHAPP AND THE CITY OF SCRANTON
BOTH ATTACK THE MERGER ON ITS MERITS.  ASIDE FROM PENN-CENTRAL AND NH,
THERE ARE 10 OTHER CARRIERS INVOLVED IN THIS PROCEEDING.    THREE OF
THESE ARE THE PROTECTED CARRIERS - B&M, D&H AND E-L.  B&M OPERATES A
FREIGHT AND PASSENGER SERVICE IN MAINE, NEW HAMPSHIRE, VERMONT,
MASSACHUSETTS AND NEW YORK OVER SOME 1,500 MILES OF ROAD.  IT HAS
SUFFERED CONSECUTIVE DEFICITS IN NET INCOME FOR SOME YEARS AND HAS NOT
APPEALED FROM THE DECISION OF THE DISTRICT COURT.  D&H OPERATES ABOUT
750 MILES OF ROAD WITH SOME 600 IN NEW YORK, LESS THAN 50 IN VERMONT
AND THE BALANCE IN PENNSYLVANIA.  ITS NET INCOME IN 1965 WAS
$5,000,000, ITS HIGHEST YEAR SINCE 1960.  E-L OPERATES SOME 3,000 MILES
OF RAILROAD LOCATED IN NEW JERSEY, NEW YORK, PENNSYLVANIA, OHIO,
INDIANA AND ILLINOIS.  ITS NET INCOME WAS OVER $3,000,000 IN 1965 BUT
IT SUFFERED HEAVY DEFICITS IN THE SEVEN PRECEDING YEARS.  AS WE HAVE
PREVIOUSLY NOTED, THESE THREE RAILROADS HAVE FILED APPLICATIONS FOR
INCLUSION IN BOTH THIS CASE AND IN NORFOLK & W. RY.  CO. AND NEW YORK,
C. & ST. L.R. CO. - MERGER, 324 I.C.C. 1.  (FN4)  THE COMMISSION HAS
WITHHELD ACTION ON THE INCLUSION OF E-L, B&M AND D&H, IN PENN-CENTRAL
UNTIL THERE IS A FINAL DETERMINATION OF THEIR INCLUSION PROCEEDING WITH
NORFOLK AND WESTERN (N&W).  IN THE LATTER PROCEEDING COMMISSIONER WEBB
FILED HIS REPORT ON DECEMBER 22, 1966, RECOMMENDING THE INCLUSION OF E
L AND D&H IN THE N&W SYSTEM BUT WAS UNABLE TO PRESCRIBE TERMS FOR
INCLUSION OF B&M - THIS WAS LEFT TO PRIVATE NEGOTIATION BETWEEN THE
RAILROADS.  ON ARGUMENT HERE THE COMMISSION HAS INDICATED THAT IT
ANTICIPATED ENTERING A FINAL ORDER IN THE MATTER BY JULY OR AUGUST
1967.  IF THIS IS FAVORABLE THESE THREE ROADS WOULD BE INCLUDED IN THE
N&W SYSTEM, WHICH HAS INDICATED ITS ACQUIESCENCE IN SUCH A PLAN. 

SIX ADDITIONAL RAILROADS INVOLVED HERE ARE THE C&O, B&O, THE CENTRAL
OF NEW JERSEY (CNJ), THE READING COMPANY, THE NORFOLK AND WESTERN, AND
THE WESTERN MARYLAND COMPANY (WM).  THE C&O-B&O SYSTEM IS THE RESULT OF
A CONTROL PROCEEDING IN 1962.  SEE CHESAPEAKE & O. RY.  CO. - CONTROL -
BALTIMORE & O.R. CO., 317 I.C.C. 261, SUSTAINED, SUB NOM. BROTHERHOOD
OF MAINTENANCE OF WAY EMPLOYEES V. UNITED STATES, 221 F. SUPP. 19,
AFF'D, PER CURIAM, 375 U.S. 216 (1963).  TOGETHER THESE TWO ROADS
OPERATE SOME 10,000 MILES OF RAILROAD.  THEIR LINES EXTEND FROM
MICHIGAN THROUGH OHIO AND WEST VIRGINIA TO VIRGINIA AND FROM CHICAGO,
ILL., AND ST. LOUIS, MO., TO ROCHESTER, N.Y., AND WASHINGTON, D.C.
THEIR NET OPERATING INCOME IN 1965 TOTALED OVER $80,000,000.  IN
ADDITION, B&O OWNS 38% VOTING CONTROL OF READING WHICH IN TURN CONTROLS
CNJ.  READING HAS 1,200 MILES OF RAILROAD IN EASTERN PENNSYLVANIA WITH
NET OPERATING REVENUE OF SOME $8,000,000 IN 1965.  CNJ HAS 514 MILES OF
RAILROAD EXTENDING FROM SCRANTON, PA., TO JERSEY CITY, N.J.  IN 1965 IT
HAD A NET OPERATING DEFICIT IN EXCESS OF $3,000,000.   C&O-B&O ALSO OWN
JOINTLY 65% OF THE VOTING STOCK OF WM.  THE LATTER HAS 741 MILES OF
RAILROAD EXTENDING FROM CONNELLSVILLE, PA., AND WEBSTER SPRINGS, W.VA.,
TO BALTIMORE, MD.  IN 1965 ITS NET OPERATING INCOME WAS NEARLY
$8,500,000. 

N&W HAS 7,000 MILES OF RAILROAD EXTENDING IN A DOUBLE PRONG FROM DES
MOINES, IOWA, AND KANSAS CITY, MO., ON THE WEST TO BUFFALO, N.Y., AND
PITTSBURGH, PA., ON THE EAST AND FROM CINCINNATI, OHIO, AND BRISTOL,
VA., ON THE WEST TO HAGERSTOWN, MD., AND NORFOLK, VA., ON THE EAST. 
ITS NET OPERATING INCOME FOR 1965 WAS APPROXIMATELY $118,000,000.  AS
WE HAVE NOTED, AN INCLUSION PROCEEDING IS NOW PENDING UNDER WHICH B&M,
D&H AND E-L SEEK INCLUSION IN THE N&W SYSTEM. 

ON OCTOBER 11, 1965, C&O-B&O AND N&W FILED AN APPLICATION WITH THE
COMMISSION ASKING APPROVAL OF THEIR MERGER INTO A SINGLE SYSTEM AND
OFFERING TO INCLUDE B&M, D&H, E-L, THE READING AND CNJ THEREIN, SUBJECT
TO VARIOUS CONDITIONS.  IF THIS WERE EFFECTED AND THE PENN-CENTRAL-NH
MERGER WERE EFFECTED, THE NORTHEASTERN REGION WOULD THEN HAVE TWO GIANT
SYSTEMS, I.E., PENN-CENTRAL AND C&O-B&O-N&W. 

ONLY ONE ADDITIONAL RAILROAD REMAINS A PARTY HERE, THE CHICAGO AND
EASTERN ILLINOIS RAILROAD COMPANY (C&EI).  IT HAS APPROXIMATELY 750
MILES OF RAILROAD OPERATING BETWEEN CHICAGO, ILL., ST. LOUIS, MO., AND
EVANSVILLE, IND., WITH A NET OPERATING INCOME OF NEARLY $3,500,000 IN
1965.  THE MISSOURI PACIFIC RAILROAD COMPANY HAS ALREADY BEEN
AUTHORIZED BY THE COMMISSION TO MAKE C&EI A PART OF ITS SYSTEM.  THE
FEAR OF C&EI HERE WAS THAT THE PENN AND CENTRAL MERGED WOULD BE A MORE
FORMIDABLE COMPETITOR THAN THE CENTRAL ALONE AND IT, ACCORDINGLY,
SOUGHT THE IMPOSITION HERE OF SPECIAL ROUTING AND TRAFFIC CONDITIONS. 

THE ONLY OTHER APPELLANTS ARE THE CITY OF SCRANTON, PA., AND MILTON
J. SHAPP.  SCRANTON IS SERVED BY E-L, D&H AND CNJ.  IT FEARS THAT THE
MERGER WILL HAVE ADVERSE EFFECTS UPON THE CITY AND THEREFORE OPPOSES
THE MERGER.  SHAPP SUES AS A CITIZEN AND STOCKHOLDER OF PENN AND IS
LIKEWISE IN OPPOSITION TO THE MERGER. 

THE UNITED STATES HAS FILED A MEMORANDUM IN WHICH IT DOES NOT
"QUARREL WITH THE MERITS OF THE PENN-CENTRAL MERGER PROPOSAL ITSELF." 
THE AGENCIES OF THE EXECUTIVE BRANCH, THE SOLICITOR GENERAL REPORTS,
"BELIEVE THAT THE MERGER IS IN THE PUBLIC INTEREST AND THAT ITS
CONSUMMATION SHOULD BE PROMPTLY EFFECTED."  THIS VIEW, HOWEVER, IS
BASED ON THE ASSUMPTION "THAT A PLACE IN THE EMERGING PATTERN OF
CONSOLIDATION IN THE NORTHEAST CAN BE FOUND FOR THE LESSER ROADS OF THE
REGION."  IT IS THE COMMISSION'S APPROVAL OF THE IMMEDIATE CONSUMMATION
OF THE MERGER PRIOR TO THE COMPLETION OF THE PROCEEDINGS TO DETERMINE
THE PLACE OF THE LESSER ROADS TO WHICH THE UNITED STATES OBJECTS.  IT
CONTENDS THAT SINCE THE VERY SURVIVAL OF THE THREE PROTECTED RAILROADS
IS THREATENED BY THE PENN-CENTRAL MERGER, THE COMMISSION MUST FIRST
PROVIDE PROTECTION FOR THEM UNTIL THEIR ABSORPTION BY "A MAJOR SYSTEM
LIKE NORFOLK AND WESTERN."  TO THIS END THE UNITED STATES SUGGESTS THAT
WE HOLD THE CASE TO ENABLE THE COMMISSION TO CONCLUDE THE RELATED
PROCEEDINGS WHICH IT NOW HAS UNDER CONSIDERATION.  THE UNITED STATES
CONCLUDES THAT: "ONLY IF THE COMMISSION IS UNABLE TO PROMPTLY RESOLVE
THE PROBLEMS RESULTING FROM THE MERGER WOULD WE DEEM IT APPROPRIATE TO
URGE THIS COURT TO REACH THE MERITS OF THE APPEALS AND REVERSE THE
JUDGMENT BELOW." 

THE APPELLANT RAILROADS TAKE VARYING POSITIONS ALL SHORT OF ATTACKING
THE MERITS OF THE MERGER.  THE THREE PROTECTED RAILROADS CONTEND THAT
THE MERGER SHOULD NOT BE CONSUMMATED PRIOR TO THE FINAL DETERMINATION
OF THEIR INCLUSION IN SOME MAJOR SYSTEM OR THE ENFORCEMENT OF EFFECTIVE
PROTECTIVE CONDITIONS IN THE INTERIM.  JUDICIAL REVIEW, THEY SAY, OF
THE PROTECTIVE CONDITIONS WOULD OTHERWISE BE ILLUSORY.  THE C&O-B&O
GROUP AND THE N&W SYSTEM MAINTAIN THAT THE CONDITIONS OF THE APRIL 6,
1966, ORDER GIVE THE PROTECTED RAILROADS A VESTED INTEREST IN THE PENN
CENTRAL MERGER WHICH WOULD RESULT IN THE PROTECTED RAILROADS DIVERTING
TRAFFIC TO PENN-CENTRAL WHICH WOULD NORMALLY HAVE GONE TO THEM.  THEY
SAY, AS DOES THE UNITED STATES, THAT THE CONDITIONS WERE DRAWN WITHOUT
THE BENEFIT OF NOTICE AND HEARING, ARE DEFICIENT AND ENFORCEMENT
THEREOF WOULD BE TO THEIR DETRIMENT.  C&EI POINTS TO WHAT IT CALLS
INCONSISTENT FINDINGS AS TO THE BENEFITS IT WILL HAVE "OF INTENSIFIED
COMPETITIVE EFFORTS" BY ITS CONNECTING CARRIERS ON ROUTES IN
COMPETITION WITH PENN-CENTRAL.  IT CONTENDS THAT THE INDEMNITY
CONDITIONS WOULD "COMPOUND THE ECONOMIC INJURY" WHICH WOULD BEFALL THE
C&EI AS A RESULT OF THE MERGER AND WHICH PROMPTED IT TO REQUEST
PROTECTIVE MEASURES. 

                                       IV. 

THE NATIONAL TRANSPORTATION POLICY AND PRACTICES OF THE COMMISSION
THEREUNDER. 

THIS COURT HAS OFTEN POINTED OUT THAT THE NATIONAL TRANSPORTATION
POLICY "IS THE PRODUCT OF A LONG HISTORY OF TRIAL AND ERROR BY CONGRESS
...  ."  MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 80
(1944).  IN THAT CASE IT FOUND THAT THE TRANSPORTATION ACT OF 1920
"MARKED A SHARP CHANGE IN THE POLICIES AND OBJECTIVES EMBODIED IN THOSE
EFFORTS."  IBID.  IN THAT ACT THE CONGRESS DIRECTED THE COMMISSION TO
ADOPT A PLAN FOR CONSOLIDATION OF THE RAILROADS OF THE UNITED STATES
INTO "A LIMITED NUMBER OF SYSTEMS."  41 STAT. 481 (1920). 
CONSOLIDATION WOULD BE APPROVED BY THE COMMISSION UPON A FINDING THAT
THE TRANSACTION WAS IN HARMONY WITH AND IN FURTHERANCE OF THE COMPLETE
PLAN OF CONSOLIDATION AND THAT THE PUBLIC INTEREST WOULD BE PROMOTED. 
BUT THE COMMISSION WAS WARNED THAT "COMPETITION SHALL BE PRESERVED AS
FULLY AS POSSIBLE."  IBID.  THE INITIATION OF THIS UNIFICATION,
HOWEVER, THE CONGRESS LEFT WHOLLY WITH THE CARRIERS.  THE COMMISSION
WAS GIVEN NO POWER TO COMPEL MERGERS.  THIS PATTERN WAS CARRIED FORWARD
IN THE TRANSPORTATION ACT OF 1940, 54 STAT. 898; HOWEVER, SEC 5 OF THE
FORMER ACT WAS AMENDED TO AUTHORIZE THE COMMISSION TO APPROVE CARRIER
INITIATED PROPOSALS WHICH IT FOUND TO BE CONSISTENT WITH THE PUBLIC
INTEREST AND UPON JUST AND REASONABLE CONDITIONS.  UNDER SEC 5(2)(D)
ADDITIONAL POWER WAS GIVEN THE COMMISSION TO CONDITION ITS APPROVAL OF
A MERGER UPON THE INCLUSION, UPON REQUEST, OF OTHER RAILROADS OPERATING
IN THE TERRITORY INVOLVED.  AS WE SAID IN COUNTY OF MARIN V. UNITED
STATES, 356 U.S. 412 (1958), "THE RESULT OF THE 1940 ACT WAS A CHANGE
IN THE MEANS, WHILE THE END REMAINED THE SAME.  THE VERY LANGUAGE OF
THE AMENDED 'UNIFICATION SECTION' EXPRESSES CLEARLY THE DESIRE OF THE
CONGRESS THAT THE INDUSTRY PROCEED TOWARD AN INTEGRATED NATIONAL
TRANSPORTATION SYSTEM THROUGH SUBSTANTIAL CORPORATE SIMPLIFICATION." 
ID., AT 417-418.  THE COMMISSION HAS, THEREFORE, NOT PROCEEDED BY OR
UNDER "A MASTER PLAN" FOR CONSOLIDATION IN THE VARIOUS REGIONS. 
FOLLOWING THIS PROCEDURE THE COMMISSION HAS REFUSED TO CONSOLIDATE THE
NORTHEASTERN REGION RAILROAD MERGER OR CONTROL PROCEEDINGS INTO ONE
CASE.  SEE CHESAPEAKE & O. RY. CO. - CONTROL - BALTIMORE & O.R. CO.,
SUPRA, AT 265-266, AND NORFOLK & W. RY. CO. AND NEW YORK, C. & ST. L.R.
CO. - MERGER, SUPRA, AT 18.  ALSO BROTHERHOOD OF MAINTENANCE OF WAY
EMPLOYEES V. UNITED STATES, 221 F. SUPP. 19, AT 29-31; AFF'D PER
CURIAM, 375 U.S. 216 (1963). 

IT IS CONTENDED THAT THE ORDER HERE IS FATALLY DEFECTIVE FOR FAILURE
TO COMPLY WITH SEC 5(2)(B) OF THE ACT WHICH REQUIRES THE COMMISSION TO
"ENTER AN ORDER APPROVING AND AUTHORIZING SUCH TRANSACTION, UPON THE
TERMS AND CONDITIONS, AND WITH THE MODIFICATIONS, SO FOUND TO BE JUST
AND REASONABLE."  THE CLAIM IS THAT BY LEAVING THE INDEMNITY PROVISIONS
OPEN FOR FUTURE DETERMINATION THE COMMISSION DID NOT MEET THE
REQUIREMENTS OF THE SECTION.  ONCE A VALID ORDER IS ENTERED BY THE
COMMISSION, IT, OF COURSE, HAS THE POWER TO RETAIN JURISDICTION FOR THE
PURPOSE OF MAKING MODIFICATIONS THAT IT FINDS NECESSARY IN THE LIGHT OF
SUBSEQUENT CIRCUMSTANCES OR TO ASSIST IN COMPLIANCE WITH PRIOR
CONDITIONS PREVIOUSLY REQUIRED OR, OF COURSE, TO CORRECT ANY ERRORS. 
THE COMMISSION ALSO HAS POWER UNDER SEC 5(9) OF THE ACT TO MAKE CERTAIN
SUPPLEMENTAL ORDERS AND UNDER SEC 17(3) MAY CORRECT CLERICAL ERRORS IN
CERTIFICATES.  WE DO NOT FIND IT NECESSARY TO PASS UPON THE QUESTION OF
NAKED POWER IN THE COMMISSION TO DO WHAT HAS BEEN DONE HERE.  EVEN
ASSUMING THAT IT DOES HAVE THAT POWER, WE FIND THAT ITS ORDER APPROVING
IMMEDIATE CONSUMMATION OF THE MERGER IS INSUPPORTABLE ON ITS FINDINGS. 

                   V. 

CONCLUSIONS. 

THE COMMISSION FOUND IN ITS APRIL 6, 1966, ORDER THAT THE PROTECTED
RAILROADS WOULD BE ADVERSELY AFFECTED TO A "SERIOUS DEGREE" BY THE PENN
CENTRAL MERGER; THAT THEY WOULD BE "SEVERELY HANDICAPPED" IN PROVIDING
REQUIRED TRANSPORTATION TO THE HIGHLY INDUSTRIALIZED AREAS THAT THEY
SERVE, WHICH SERVICE IS "ESSENTIAL" AND "THE PUBLIC SERVICE DICTATES
THAT IT BE PRESERVED."  IT THEN HELD THAT IMMEDIATE CONSUMMATION OF THE
MERGER WOULD BE CONSISTENT WITH THE PUBLIC INTEREST ONLY IF THE
CONDITIONS OF APPENDIX G WERE IMMEDIATELY IMPOSED.  AND, SIGNIFICANTLY,
IT CONCLUDED THAT EVEN THOUGH IT APPROVED THE MERGER, CONSUMMATION OF
IT WOULD NOT BE PERMITTED UNLESS THE PROTECTED RAILROADS "ARE PROTECTED
DURING THE PERIOD NECESSARY TO DETERMINE THEIR FUTURE  ...  ."  327
I.C.C., AT 529, 532.  BUT AFTER THIS SUIT WAS BROUGHT AND STRONG
OPPOSITION TO APPENDIX G WAS VOICED, THE COMMISSION, ON SEPTEMBER 16,
1966, WITHDREW ALL OF THE CONDITIONS OF APPENDIX G SAVE THE TRAFFIC
ONES.  THIS LEFT THE PROTECTED RAILROADS WITHOUT SUFFICIENT PROTECTION
ACCORDING TO THE COMMISSION'S OWN FINDINGS.  THIS WAS DONE APPARENTLY
BECAUSE OF THE VEHEMENT OBJECTIONS OF THE APPELLANT RAILROADS THAT
APPENDIX G WOULD CAUSE HAVOC RATHER THAN GIVE SHELTER.  WE CANNOT SAY,
AS DID THE DISTRICT COURT, THAT THE SEPTEMBER 16, 1966, ORDER MEANT
NOTHING MORE THAN THAT THE TRAFFIC CONDITIONS LEFT IMPOSED BY IT WERE
IN THEMSELVES SUFFICIENT TO PROTECT THE THREE PROTECTED RAILROADS
DURING THE INTERIM BETWEEN THE MERGER AND THE DECISION AS TO THEIR
FUTURE IN ONE OF THE MAJOR RAILROAD SYSTEMS.  THIS INTERPRETATION RUNS
IN THE FACE OF NOT ONLY THE PRIOR FINDINGS ENUMERATED ABOVE BUT THE
SPECIFIC TERMS AND CONDITIONS OF APPENDIX G FOUND TO BE NECESSARY TO
PREVENT "IMPAIRMENT OR SERIOUS WEAKENING" OF THE THREE CARRIERS.  ID.,
AT 532.  INDEED, RATHER THAN BEING TENTATIVE, THE REQUIREMENTS OF
APPENDIX G WERE RIGIDLY FIXED AND ESTABLISHED FOR THE ENTIRE PERIOD
PRECEDING INCLUSION OF THE PROTECTED ROADS IN SOME MAJOR SYSTEM.  THE
FINDING OF CONSISTENCY WITH THE PUBLIC INTEREST WAS PREDICATED ENTIRELY
UPON THE UNQUALIFIED ACCEPTANCE OF APPENDIX G BY PENN-CENTRAL. 
OTHERWISE THE MERGER WOULD BE PUT OFF FOR TWO YEARS.  IN ITS EFFORT TO
EXPEDITE THE MERGER THE COMMISSION FAILED TO PROVIDE THE VERY
PROTECTION THAT IT AT THE SAME TIME DECLARED INDISPENSABLE TO THE THREE
ROADS.  THIS LEAVES THE ULTIMATE CONCLUSION - THAT PROMPT CONSUMMATION
OF THE PENN-CENTRAL MERGER CLEARLY WOULD BE IN THE PUBLIC INTEREST -
WITHOUT SUPPORT AND IT FALLS UNDER THE COMMISSION'S OWN FINDINGS.    IN
VIEW OF THESE FACTS AND SINCE NONE OF THE FINDINGS OF THE COMMISSION
WERE DISTURBED, ATTACKED, OR AMENDED, WE BELIEVE IT WAS ERROR TO PERMIT
THE MERGER TO BE EFFECTED.  AND WE ALSO NOTE THAT EVEN IN THE ULTIMATE
ORDER OF APPROVAL DATED SEPTEMBER 16, 1966, THE COMMISSION POINTED OUT
THAT ITS "FINDING AS TO THE MERGER BEING CONSISTENT WITH THE PUBLIC
INTEREST WAS THAT, IF THE IMMEDIATE CONSUMMATION WERE TO BE AUTHORIZED
E-L, D&H AND B&M WOULD REQUIRE SPECIAL PROTECTION DURING THE PENDENCY
OF THEIR PETITIONS FOR INCLUSION IN A MAJOR SYSTEM."  NEVERTHELESS, IN
SPITE OF THIS CONFIRMATION OF ITS FINDING, THE COMMISSION ORDERED THE
MERGER IMMEDIATELY CONSUMMATED WITHOUT THE "SPECIAL PROTECTION"
AFFORDED BY APPENDIX G. HAVING FOUND THAT THE FINDING OF CONSISTENCY
WITH THE PUBLIC INTEREST COULD ONLY BE SUSTAINED BY THE IMPOSITION OF
THE APPENDIX G "SPECIAL PROTECTION," THE COMMISSION FAILED TO MEET ITS
STATUTORY OBLIGATION WHEN IT ARBITRARILY REMOVED THE SPECIAL CONDITIONS
OF APPENDIX G WHILE LEAVING THE PRIOR FINDING STANDING. 

IN VIEW OF THE PATENT INVALIDITY OF THE ORDER PERMITTING IMMEDIATE
CONSUMMATION OF THE MERGER AND IN LIGHT OF THE PRESENT STATUS OF THE
PROCEEDING BEFORE THE COMMISSION, WE CAN ONLY CONCLUDE THAT IT IS
NECESSARY THAT THE DECISION AS TO THE FUTURE OF THE PROTECTED RAILROADS
AND THEIR INCLUSION IN A MAJOR SYSTEM BE DECIDED PRIOR TO CONSUMMATION
OF THE PENN-CENTRAL MERGER.  THIS IS ESPECIALLY TRUE SINCE THE FINDINGS
AND RECOMMENDATIONS OF COMMISSIONER WEBB, AS TO THE INCLUSION OF THE
THREE PROTECTED RAILROADS, ARE NOW UNDER SUBMISSION TO THE FULL
COMMISSION AND A DECISION SHOULD BE REACHED THEREON BY JULY OR AUGUST
1967, WE ARE ADVISED BY COUNSEL.  THIS SHORT TIME WOULD HAVE LITTLE
EFFECT UPON THE ULTIMATE CONSUMMATION OF THE MERGER - WHICH HAS BEEN IN
THE MAKING FOR SOME 10 YEARS NOW - AND IF IT RESULTED IN THE FUTURE OF
THE PROTECTED RAILROADS BEING FINALLY DECIDED, SERIOUS LOSSES TO THEM
WOULD BE OBVIATED.  FURTHERMORE, THERE WOULD BE NO OCCASION FOR THE
CONDITIONS OF APPENDIX G TO BE IMPOSED AND HEARING AND DECISION ON THIS
HIGHLY CONTROVERSIAL MATTER WOULD NOT BE NECESSARY INSOFAR AS THE THREE
PROTECTED RAILROADS ARE CONCERNED.  FINALLY, SUCH ACTION WOULD PROVIDE
THE SOLUTION TO THE PROBLEM OF THE NECESSARY AND INDISPENSABLE
PROTECTION TO THE THREE RAILROADS THAT THE COMMISSION FOUND
PREREQUISITE TO THE MERGER. 

FURTHERMORE, THE SERIOUS CHARGE THAT THE CONDITIONS OF APPENDIX G
WERE IMPOSED WITHOUT NOTICE AND HEARING WOULD IN A LARGE PART BE
DISSIPATED BY THIS COURSE OF ACTION.  AS TO THE THREE PROTECTED ROADS
IT WOULD BE ENTIRELY OBVIATED IF AND WHEN THEIR FATE IS DETERMINED.  AS
TO THE OTHER RAILROADS AFFECTED, THE COMMISSION COULD MORE QUICKLY
CONCLUDE ITS PRESENT HEARING AND MAKE A DECISION AS TO THE EFFECT OF
THE MERGER UPON THEM AND THE PROTECTION, IF ANY, REQUIRED.  (FN5) 

THIS DISPOSITION IS ALSO BUTTRESSED BY THE FACT THAT SHOULD THE
IMMEDIATE CONSUMMATION OF THE MERGER BE PERMITTED AND AT A LATER DATE
NEITHER THE INTERIM CONDITIONS NOR THE INCLUSION PROCEEDINGS BE
DISPOSED OF FAVORABLY TO THE CONTINUED EXISTENCE OF THE MERGER, THE
ONLY REMEDY REMAINING WOULD BE TO SET IT ASIDE AND UNSCRAMBLE THE
CONSOLIDATION.  IT IS SAID THAT THIS DOES NOT FOLLOW SINCE ONLY THE
INDEMNITY TERMS ARE AT ISSUE AND THEY INVOLVE ONLY MONEY.  THIS IS
BLINKING AT REALITY.  THE FACT IS THAT TRAFFIC, TRACKAGE, TERMINALS,
ETC., AS WELL AS FINANCIAL AND CORPORATE STRUCTURES CAN AND WILL,
BEYOND DOUBT, BE QUICKLY COMBINED, CHANGED, ABANDONED, OR
CONSOLIDATED.  THE ONLY CONDITION NOW IMPOSED FOR THE MAINTENANCE OF
THE STATUS QUO IS THE PROVISION AGAINST ANY CHANGE OF ROUTES, TRAFFIC,
RATES, ETC., AS TO BUSINESS IN WHICH THE THREE PROTECTED ROADS
PARTICIPATE.  THEY ARE COMPARATIVELY SMALL LINES LOCATED FOR THE MOST
PART IN NORTHEASTERN COASTAL STATES AND WOULD, PERCENTAGEWISE, BE A
SMALL PART OF THE TOTAL ROUTES, TRAFFIC, RATES, ETC., OF THE WHOLE PENN
CENTRAL SYSTEM.  THERE WOULD BE NO RESTRICTION AS TO OTHER ROUTES,
TRAFFIC, RATES, ETC., AS WELL AS ALL OTHER OPERATIONS OF THE MERGED
COMPANY, INCLUDING TERMINALS, WAREHOUSES, ETC., FINANCIAL AND CORPORATE
STRUCTURES.  THE PLAN THAT THE PENN-CENTRAL PROPOSES TO FOLLOW, AS WE
HAVE BRIEFLY SKETCHED IT, INDICATES NOT ONLY MAJOR CHANGES BUT QUICK
ACTION.  OUR EXPERIENCE WITH OTHER MERGERS, AND COMMON SENSE AS WELL,
INDICATE THAT THE "SCRAMBLING" GOES FAST BUT THE UNSCRAMBLING IS
INTERMINABLE AND SELDOM EFFECTIVELY ACCOMPLISHED. 

THE PENN-CENTRAL MERGER HAS BEEN STUDIED FOR A DECADE.  INDEED, THE
PARTIES TO THE MERGER AGREED TO IT OVER FIVE YEARS AGO AND IT HAS BEEN
UNDER COMMISSION CONSIDERATION EVER SINCE THAT TIME.  THIS IS, OF
COURSE, THE MORE REASON FOR EXPEDITION.  WE NOTE AND GIVE WEIGHT TO THE
ESTIMATES OF THE COMMISSION THAT THE INCLUSION PROCEEDINGS OF THE THREE
ROADS IN THE N&W SHOULD BE CONCLUDED IN "A RELATIVELY SHORT TIME."  OUR
REMAND SHOULD, THEREFORE, ENTAIL ONLY A VERY SHORT DELAY BEFORE THE
COMMISSION.  IF ITS ORDER IS ATTACKED IN COURT THE HEARING THERE CAN BE
EXPEDITED, AS WAS THIS ONE, AND AN EARLY DETERMINATION MADE.  WE DO NOT
BELIEVE THAT THIS IS TOO HIGH A PRICE TO PAY TO MAKE AS CERTAIN AS
HUMAN INGENUITY CAN DEVISE, A JUST AND REASONABLE DISPOSITION OF THIS
MATTER FOR ALL OF THE PARTIES.  AFTER ALL, IT IS THE LARGEST RAILROAD
MERGER IN OUR HISTORY AND IF NOT HANDLED PROPERLY COULD SERIOUSLY
DISRUPT AND IRREPARABLY INJURE THE ENTIRE RAILROAD SYSTEM IN THE
NORTHEASTERN SECTION OF THE COUNTRY - TO THE GREAT DETRIMENT NOT ONLY
OF THE PARTIES HERE BUT TO THE PUBLIC CONVENIENCE AND NECESSITY OF THE
ENTIRE NATION. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED WITH INSTRUCTIONS THAT IT BE REMANDED TO THE COMMISSION FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  "COMPETITIVE FACTOR" WAS DEFINED AS ANY PARTICULAR ROUTE, RATE,
OR SERVICE ON WHICH ANY OF THE "PROTECTED RAILROADS" WERE HANDLING
TRAFFIC AT THE TIME THE MERGER APPLICATION WAS FILED OR AT THE DATE OF
THE ORDER. 

FN2  WE INCLUDE IT IN THIS DISCUSSION SINCE THE COMMISSION INTENDS TO
INCLUDE IT IN THE PENN-CENTRAL SYSTEM AS SOON AS TERMS AND CONDITIONS
ARE AGREED TO OR FIXED. 

FN3  IN THE MATTER OF THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD
COMPANY - DEBTOR, NO. 30226 U.S.D.C. CONN. 

FN4  THIS PROCEEDING INVOLVED THE MERGER OF THE NICKEL PLATE.  E-L
SOUGHT INCLUSION IN THIS PROCEEDING ALONG WITH B&M AND D&H.  AFTER E-L
HAD WITHDRAWN ITS APPLICATION THE COMMISSION FOUND THAT THE MERGER
"SHOULD HAVE NO HARMFUL EFFECTS" ON B&M AND D&H.  THE COMMISSION
RETAINED JURISDICTION FOR FIVE YEARS TO PERMIT E-L, B&M AND D&H TO
AGAIN PETITION FOR INCLUSION.  SEE 324 I.C.C. 1, 19-31.  EACH OF THE
ROADS SO PETITIONED AND IT IS THIS INCLUSION PROCEEDING THAT IS NOW
BEFORE THE COMMISSION. 

FN5  AMONG THESE, CNJ CLAIMS IT HAS BEEN DEPRIVED OF A HEARING ON THE
EFFECT ON IT OF THE INCLUSION OF THE NH IN THE PENN-CENTRAL MERGER.  AS
THE COMMISSION POINTS OUT, HOWEVER, THE TERMS AND CONDITIONS OF THE
NH'S INCLUSION ARE SUBJECT TO FURTHER PROCEEDINGS AND THE COMMISSION
HAS SPECIFICALLY GIVEN TO CNJ LEAVE "TO SEEK PROTECTION FOR ITS TRAFFIC
AND GATEWAYS," AT THAT TIME.  327 I.C.C., AT 527.  MOREOVER, CNJ ALSO
SAYS, IT HAS NOT BEEN AFFORDED A HEARING ON ITS CLAIM THAT THE MERGER
WILL ALSO DEPRIVE IT OF IMPORTANT OVERHEAD COAL TRAFFIC NOW DELIVERED
BY CNJ TO D&H AT WILKES-BARRE, PA.  THIS MIGHT BE LOST, IT ALLEGES,
BECAUSE OF THE DIRECT CONNECTION BETWEEN D&H AND N&W WHICH WILL BE
AVAILABLE OVER THE TRACKAGE RIGHTS THAT PENN-CENTRAL IS BEING REQUIRED
TO GRANT D&H.  WE KNOW NOTHING OF THE MERITS OF THESE CLAIMS AND, OF
COURSE, INDICATE NO DECISION THEREON.  HOWEVER, WE ASSUME THAT THE
COMMISSION WILL IN EACH INSTANCE AFFORD THE CNJ AN OPPORTUNITY TO BE
HEARD CONCERNING THEM. 

                       APPENDIX TO OPINION OF THE COURT. 

                                  APPENDIX G.* 

*327 I.C.C. 475, 561. 

PROVISIONS FOR THE PROTECTION OF E-L, D&H, AND B&M. 

1.  PENDING FINAL DETERMINATION OF THE PETITIONS FOR INCLUSION FILED
BY E-L, D&H, AND B&M IN THIS PROCEEDING AND IN FINANCE DOCKET NO. 21510
ET AL., OR SUCH OTHER PERIOD OF TIME AS THE COMMISSION MAY PRESCRIBE,
HEREINAFTER CALLED THE PROTECTIVE PERIOD, AND ON TRAFFIC FOR WHICH E-L,
D&H AND B&M ARE COMPETITIVE FACTORS, THE MERGED COMPANY SHALL NOT
PUBLISH OR PROVIDE FOR ANY NEW OR CHANGED ROUTING PRACTICE AND/OR
FREIGHT RATES OR SERVICES, EITHER LOCALLY OR JOINTLY WITH OTHER
CARRIERS, WHICH WOULD DIVERT OR TEND TO DIVERT TRAFFIC FROM ROUTES IN
WHICH E-L, D&H OR B&M, NOW PARTICIPATES, OR PARTICIPATED AT THE TIME
THIS MERGER APPLICATION WAS FILED, OR TAKE ANY ACTION OR ENGAGE IN ANY
PRACTICE OR CONDUCT CONTRARY TO THE PURPOSE AND GENERAL OBJECTIVES OF
THIS CONDITION AS EXPLAINED IN THIS REPORT. 

FOR THE PURPOSE OF ILLUSTRATING - BUT IN NO WAY LIMITING - THE
APPLICATION OF THIS CONDITION, THE FOLLOWING SPECIFIC PROVISIONS ARE
PRESCRIBED: 

A. DURING THE PROTECTIVE PERIOD, AND AS TO THE DESCRIBED TRAFFIC, THE
RAILROADS WHICH SHALL MAKE UP THE MERGED SYSTEM WILL BE CONSIDERED
SEPARATE RAILROADS, AS THEY NOW ARE, FOR THE PURPOSES OF ESTABLISHING
NEW ROUTES OR RATES OR PRIVILEGES AND CHANGES IN PRESENT ROUTES, RATES
OR PRIVILEGES. 

B. WHEN ANY OF THE DESCRIBED FREIGHT TRAFFIC IS DELIVERED TO CARRIERS
OF THE MERGED SYSTEM, IT SHALL BE ALLOCATED AMONG THE ROUTES OF THE
SYSTEM IN ACCORDANCE WITH PRACTICES EMPLOYED BY THE SYSTEM'S RAILROADS
AT THE TIME THIS MERGER APPLICATION WAS FILED. 

C. WHERE THROUGH ROUTES AND JOINT RATES ARE NOW IN EXISTENCE VIA ANY
COMPONENT RAILROAD OF THE MERGED SYSTEM AND E-L, D&H OR B&M, THE
PARTICIPATION THEREIN OF SUCH COMPONENTS SHALL BE MAINTAINED DURING THE
PROTECTIVE PERIOD WITH THE SAME VIGOR AS SUCH COMPONENTS HAVE
HERETOFORE EXERCISED IN COMPETITION WITH EACH OTHER AND OTHER CARRIERS,
TO THE END OF PREVENTING NOTICEABLE DIVERSION FROM SUCH ROUTES TO ANY
OTHER ROUTE IN WHICH THE MERGED COMPANY PARTICIPATES. 

D. THE MERGED COMPANY FOR THE PROTECTIVE PERIOD SHALL AGREE TO JOINT
RATES AND DIVISIONS THEREOF ON ITS FREIGHT TRAFFIC INTERLINED WITH E-L,
D&H OR B&M UNDER TERMS NO LESS ADVANTAGEOUS TO E-L, D&H AND B&M THAN
ARE THE TERMS WHICH THOSE THREE CARRIERS NOW HAVE WITH THE COMPONENT
CARRIERS OF THE MERGED SYSTEM, AND, IN THE EVENT OF ANY CHANGES IN SUCH
JOINT RATES, THE DIVISIONS SHALL NOT BE CHANGED IN ANY MANNER WHICH
WILL RESULT IN E-L, D&H OR B&M RECEIVING PROPORTIONALLY LESS THAN THEY
NOW RECEIVE ON JOINT RATES WITH SUCH COMPONENT CARRIERS. 

E. IN CONJUNCTION WITH E-L, D&H AND B&M, THE MERGED COMPANY SHALL,
DURING THE PROTECTIVE PERIOD, KEEP OPEN ALL ROUTES NOW IN FORCE FOR THE
TRANSPORTATION OF FREIGHT OVER THE LINES OF THE THREE COMPANIES AND THE
COMPONENT CARRIERS OF THE MERGED SYSTEM; SHALL MAINTAIN THEREON SERVICE
EQUAL TO OR BETTER THAN THAT BEING GIVEN ON THE DATE THIS MERGER
APPLICATION WAS FILED; SHALL IMPROVE SUCH SERVICE, TO THE EXTENT WITHIN
ITS POWER, AT LEAST AS NECESSARY TO MAKE THE SAID THROUGH ROUTES FULLY
COMPETITIVE WITH OTHER ROUTES IN WHICH THE MERGED COMPANY PARTICIPATES;
AND, WHERE JOINT RATES ARE NOW IN EFFECT OR WERE IN EFFECT WHEN THIS
MERGER APPLICATION WAS FILED, IT SHALL MAINTAIN SUCH RATES; AND WHERE
CHANGE IN THOSE RATES BECOMES APPROPRIATE, CHANGES SHALL CONFORM TO THE
REQUIREMENT OF PROVISION D ABOVE. 

2.  THE TERM "COMPETITIVE FACTOR" SHALL BE CONSTRUED TO MEAN THAT AT
THE DATE OF THIS ORDER OR AT THE TIME THIS MERGER APPLICATION WAS
FILED, E-L, D&H OR B&M WAS BOTH PARTICIPATING IN THE PARTICULAR ROUTE,
RATE OR SERVICE AND WAS HANDLING TRAFFIC THEREON. 

3.  E-L, D&H AND B&M SHALL BE INDEMNIFIED BY THE MERGED COMPANY UNDER
THE CIRCUMSTANCES AND ACCORDING TO THE PLAN SPECIFIED IN THE REPORT,
SUPRA. 

4.  THIS APPENDIX CONSTITUTES A PLAN FOR PROTECTION AGAINST THE
EFFECTS OF THE APPLICANTS' MERGER AND DOES NOT APPLY TO LOSS CAUSED BY:
(A) HOSTILE OR WARLIKE ACTION BY (1) ANY GOVERNMENT OR SOVEREIGN POWER
(DE JURE OR DE FACTO) OR (2) MILITARY, NAVAL OR AIR FORCES; (B)
INSURRECTION, REBELLION, CIVIL WAR, ET CETERA; (C) NATIONAL DISASTER;
(D) ECONOMIC DEPRESSION; (E) STRIKES; (F) ACT OF GOD; OR (G) OTHER
SIMILAR STATE OF AFFAIRS. 

5.  THE INTERPRETATION, APPLICATION AND ENFORCEMENT OF THE CONDITIONS
IN THIS APPENDIX SHALL BE GOVERNED EXCLUSIVELY BY THE FOLLOWING
PROVISIONS: 

A. ALL CONTROVERSIES ARISING UNDER THIS APPENDIX SHALL BE DETERMINED
WITH FINALITY BY THE INTERSTATE COMMERCE COMMISSION IN THE MANNER
INDICATED BELOW. 

B. (1)  EXCEPT AS TO SECTION 3, SUPRA, WHENEVER E-L, D&H OR B&M
CONSIDERS THAT THESE PROTECTIVE CONDITIONS ARE BEING VIOLATED, OR THAT
A VIOLATION WILL RESULT FROM THE EFFECTUATION OF A TARIFF PUBLICATION
IN WHICH THE MERGED COMPANY PARTICIPATES, THEY MAY (INDIVIDUALLY OR
COLLECTIVELY) FILE A COMPLAINT WITH THE COMMISSION, BOARD OF
SUSPENSION, AND WITH THE MERGED COMPANY, SPECIFYING THE RATE, ROUTE,
PRACTICE, PRIVILEGE, OR SUCH MATTERS CONSTITUTING THE ALLEGED VIOLATION
AND SETTING FORTH IN A STATEMENT VERIFIED BY AN APPROPRIATE OFFICIAL OF
THE COMPLAINANT ALL THE DATA GIVING RISE TO THE COMPLAINT. 

(2)  IN THE EVENT THE BOARD OF SUSPENSION SHALL DETERMINE THAT, AS TO
THE MATTER COMPLAINED OF, E-L, D&H OR B&M IS A COMPETITIVE FACTOR (AS
DEFINED IN THESE CONDITIONS), IT SHALL IN THE CASE OF A TARIFF
PUBLICATION NOT YET EFFECTIVE, SUSPEND THE TARIFF FORTHWITH FOR THE
PROTECTIVE PERIOD (AS DEFINED IN THESE CONDITIONS), AND SHALL CONDUCT
AN INVESTIGATION INTO THE MATTER COMPLAINED OF; AND IF THE ALLEGED
VIOLATION IS FOUND NOT TO EXIST, THE BOARD SHALL THEREUPON ORDER THE
SUSPENSION REMOVED; AND, IN ALL MATTERS NOT INVOLVING A TARIFF NOT YET
IN EFFECT, THE BOARD SHALL INVESTIGATE THE MATTERS COMPLAINED OF; AND,
IF IN ANY INVESTIGATION, IT FINDS THAT THESE PROTECTIVE CONDITIONS ARE
BEING VIOLATED, IT SHALL ORDER THE CANCELLATION OF THE VIOLATIVE TARIFF
PROVISIONS OR, WHERE A TARIFF IS NOT INVOLVED, THE TERMINATION OF THE
VIOLATIVE CONDUCT.  ORDERS OF THE BOARD SHALL HAVE FORCE AND EFFECT AS
ORDERS OF THIS COMMISSION AND SHALL BE ENFORCED AS SUCH.    C. ALL
CONTROVERSIES ARISING UNDER SECTION 3 ABOVE, SHALL BE DETERMINED BY THE
COMMISSION, FINANCE BOARD NO. 2.  COMPLAINTS, VERIFIED BY AN
APPROPRIATE OFFICER OF THE COMPLAINANT, SHALL BE ADDRESSED TO SUCH
BOARD AND THE MERGED COMPANY, SPECIFYING BOTH THE BASIS OF THE
COMPLAINT AND THE RELIEF SOUGHT. 

D. (1)  ALL DETERMINATIONS AS TO WHETHER E-L, D&H OR B&M IS A
COMPETITIVE FACTOR SHALL BE MADE WITHIN 10 DAYS AFTER A COMPLAINT IS
FILED; AND FINAL DECISIONS AS TO ISSUES RAISED BY A COMPLAINT SHALL BE
RENDERED WITHIN 90 DAYS AFTER THE COMPLAINT IS FILED. 

(2)  APPEAL SHALL LIE TO THE COMMISSION, DIVISION 2, FROM ORDERS OF
THE BOARD OF SUSPENSION; AND TO THE COMMISSION, DIVISION 3, FROM ORDERS
OF FINANCE BOARD NO. 2. 

(3)  SPECIAL RULES FOR PROCEEDING BEFORE THE BOARDS AND APPEALING
THEREFROM SHALL BE PROMULGATED BY THIS COMMISSION AT A FUTURE TIME. 

6.  NOTWITHSTANDING THE PROVISIONS OF SECTIONS 1, 2, 3, 4, AND 5, AN
AGREEMENT PERTAINING TO THE INTERESTS OF E-L, D&H AND/OR B&M MAY BE
HEREINAFTER ENTERED BY THE MERGED COMPANY AND THE PROTECTED CARRIERS,
OR ANY OF THEM, WHICH SHALL SUPERSEDE THE PROTECTION PROVIDED BY SUCH
THE INTERSTATE COMMERCE ACT OR THE COMMISSION'S RULES AND REGULATIONS
THEREUNDER. 

7.  IN THE EVENT APPLICANTS FAIL TO ACCEDE TO THE ABOVE-NAMED
CONDITIONS, CONSUMMATION OF THE PROPOSED MERGER WILL BE DEFERRED FOR 2
YEARS OR SUCH TIME AS THE COMMISSION MAY DETERMINE TO BE NECESSARY TO
PROTECT THE INTERESTS OF D&H, B&M AND E-L. 

8.  THESE CONDITIONS SHALL BE CONSTRUED, ADMINISTERED AND ENFORCED
WITH THE VIEW TO PROTECTING THE E-L, D&H, AND B&M AND THE SHIPPING
PUBLIC WHICH DEPENDS UPON THEM FOR TRANSPORTATION, AGAINST THE EFFECTS
OF THE MERGER FOR THE PERIOD AND PURPOSES SET FORTH ABOVE. 

9.  THESE CONDITIONS ARE TO BE APPLIED IN ADDITION TO THE STANDARD
CONDITIONS SET OUT IN APPENDIX I HEREOF. 

MR. JUSTICE BRENNAN, CONCURRING. 

I JOIN THE COURT'S OPINION.  IN ITS DETERMINATION WHETHER THE MERGER
IS CONSISTENT WITH THE PUBLIC INTEREST, THE ICC DID NOT DISCHARGE ITS
STATUTORY DUTY TO CONSIDER THE EFFECT UPON THAT INTEREST OF THE
INCLUSION, OR FAILURE TO INCLUDE, THE E-L, D&H AND B&M.  THE ICC ORDER
AUTHORIZING IMMEDIATE CONSUMMATION OF THE MERGER AS CONSISTENT WITH THE
PUBLIC INTEREST MUST THEREFORE BE SET ASIDE. 

                  I. 

THE ICC'S APPROVAL OF THE PENN-CENTRAL MERGER IS THE LAST OF THREE
AUTHORIZATIONS FOR CONSOLIDATION OF MAJOR EASTERN ROADS.  IN THE FIRST,
THE C&O WAS ALLOWED TO CONTROL THE B&O.  (FN1) IN THE SECOND, THE N&W
WAS PERMITTED TO MERGE WITH THE NICKEL PLATE.  (FN2)  THE ICC HAS BEEN
CONFRONTED WITH THE PROBLEM OF WHAT TO DO WITH THE E-L, D&H AND B&M
SINCE THEY PETITIONED FOR INCLUSION IN THE PROPOSED N&W-NICKEL PLATE
SYSTEM AS A CONDITION OF APPROVAL.  E-L'S PRECARIOUS FINANCIAL
CONDITION LED TO THAT CARRIER'S WITHDRAWAL OF ITS PETITION IN FAVOR OF
INCLUSION BY NEGOTIATION, 324 I.C.C. 1, 21, AND AS A CONSEQUENCE OF THE
DENIAL OF THE D&H AND B&M PETITIONS, 324 I.C.C., AT 31-32.  IN THE
MEANTIME, THE PENN-CENTRAL PROPOSAL HAD COME BEFORE THE COMMISSION, AND
D&H, FEARFUL THAT THE PENN-CENTRAL MERGER MIGHT BE APPROVED AND
CONSUMMATED BEFORE ITS INCLUSION IN A MAJOR SYSTEM WAS ASSURED, ARGUED
THAT APPROVAL OF PENN-CENTRAL BE HELD UP BY CONSOLIDATING THE TWO
PROCEEDINGS, OR THAT IMMEDIATE CONSUMMATION OF N&W-NICKEL PLATE SHOULD
BE MADE CONTINGENT ON INCLUSION UPON EQUITABLE TERMS OF THE THREE ROADS
IN THE EVENT PENN-CENTRAL IS LATER APPROVED.  324 I.C.C., AT 30-31. 
THE ICC DENIED THESE REQUESTS, BUT RECOGNIZING THERE WAS SUBSTANCE TO
D&H'S FEARS, IT RETAINED JURISDICTION FOR FIVE YEARS TO PERMIT THE
ROADS TO FILE PETITIONS FOR INCLUSION IN THE N&W SYSTEM.  INCLUSION WAS
TO BE REQUIRED UPON EQUITABLE TERMS IF "FOUND CONSISTENT WITH THE
PUBLIC INTEREST," AND CONSUMMATION OF THE MERGER WOULD CONSTITUTE
"IRREVOCABLE ASSENT" BY N&W TO THE CONDITION.  324 I.C.C., AT 148. 

BEFORE N&W-NICKEL PLATE WAS APPROVED, THE PENN-CENTRAL PROPOSAL HAD
BEEN FILED.  THE THREE ROADS, APPRECIATING THE DANGER PENN-CENTRAL
WOULD POSE TO THEIR SURVIVAL, SOUGHT INCLUSION, CONDITIONED UPON DENIAL
OF THEIR INCLUSION IN N&W.  SOON AFTER, NEGOTIATIONS BETWEEN E-L AND
N&W FOR VOLUNTARY INCLUSION APPARENTLY BROKE DOWN, BECAUSE AT
APPROXIMATELY THE SAME TIME THE THREE ROADS FILED PETITIONS FOR
INCLUSION IN N&W, AND N&W AND C&O FILED APPLICATIONS TO MERGE WITH EACH
OTHER, STATING THAT ONLY SUCH A MERGER COULD SUPPORT THE INCLUSION OF
THE THREE ROADS IN N&W ON EQUITABLE TERMS AND CONSISTENTLY WITH THE
PUBLIC INTEREST.  THE THREE ROADS URGED IN THEIR APPLICATIONS BOTH FOR
INCLUSION IN PENN-CENTRAL AND FOR INCLUSION IN N&W, THAT PENN-CENTRAL
BE DELAYED UNTIL THEIR INCLUSION IN ONE OF THE SYSTEMS WAS ASSURED. 
THIS WAS TANTAMOUNT TO A REQUEST THAT THE TWO PROCEEDINGS BE
CONSOLIDATED FOR DECISION, AND THE DEPARTMENT OF JUSTICE SUPPORTED
THEIR POSITION. 

THE ICC FOUND, AS THE THREE ROADS ALLEGED, (1) THE SERVICE RENDERED
BY THE THREE ROADS "IS ESSENTIAL AND THE PUBLIC INTEREST DICTATES THAT
IT BE PRESERVED," AND (2) IT IS "DOUBTFUL THAT, WITHOUT INCLUSION IN A
MAJOR SYSTEM, THESE THREE CARRIERS COULD WITHSTAND THE COMPETITION OF
THE APPLICANTS MERGED  ...  ."  327 I.C.C. 475, 529, 532.  ALL THE
PARTIES CONCERNED RECOGNIZED, HOWEVER, THAT INCLUSION OF THE ROADS IN
N&W WOULD BE PREFERABLE TO INCLUSION IN PENN-CENTRAL, AND THAT IT WOULD
BE SOME TIME BEFORE THE N&W INCLUSION PROCEEDING WAS COMPLETED.  RATHER
THAN DELAY CONSUMMATION OF PENN-CENTRAL, WHICH THE ICC FOUND WOULD
RESULT IN SUBSTANTIAL SAVINGS AND IMPROVED SERVICE, THE ICC ORDERED
IMMEDIATE CONSUMMATION.  IT POINTED OUT THAT THE THREE ROADS HAD
PETITIONS FOR INCLUSION IN N&W PENDING, AND PROVIDED THAT, IN THE EVENT
INCLUSION IN N&W WAS DENIED, THE THREE ROADS COULD PETITION THE ICC FOR
ONE YEAR FOLLOWING THE JUDGMENT OF DENIAL TO ALLOW OR REQUIRE INCLUSION
OF THE ROADS IN PENN-CENTRAL, ON EQUITABLE TERMS, IF FOUND TO BE IN THE
PUBLIC INTEREST.  327 I.C.C., AT 553.  MEANWHILE, IN ADDITION TO USUAL
CONDITIONS FOR PRESERVING EXISTING ROUTES AND GATEWAYS, THE ICC
PRESCRIBED "UNPRECEDENTED" CONDITIONS OF TWO KINDS: (1) TRAFFIC
CONDITIONS REQUIRING PENN-CENTRAL TO CONTINUE EXISTING PRACTICES AND
ROUTE PATTERNS WITH RESPECT TO TRAFFIC COMPETED FOR BY THE THREE ROADS;
(2) CONDITIONS GUARANTEEING THE THREE ROADS AN INDEMNITY COMPUTED ON
THE BASIS OF A FIXED SHARE OF THE COMBINED TOTAL OF THE REVENUES
REALIZED BY THEM AND PENN-CENTRAL; THIS WAS TO COMPENSATE THE ROADS FOR
INCOME LOST FROM DIVERSION OF THEIR TRAFFIC TO PENN-CENTRAL.  327
I.C.C., AT 532.  THESE CONDITIONS WERE ACCEPTABLE TO PENN AND CENTRAL
BUT NOT TO THE THREE ROADS OR TO N&W AND C&O-B&O. 

PROCEEDINGS TO SET ASIDE THE ICC ORDER WERE BROUGHT IN THE DISTRICT
COURT AND PETITIONS FOR RECONSIDERATION WERE ALSO FILED WITH THE ICC. 
SOME OF THE LATTER ATTACKED THE VALIDITY OF THE CONDITIONS ON THE
GROUND THAT THEY WERE IMPOSED WITHOUT HEARING.  E-L AND D&H, HOWEVER,
RENEWED THEIR COMPLAINT AGAINST THE APPROVAL BEFORE ASSURANCE OF THEIR
INCLUSION IN A MAJOR SYSTEM AND ALTERNATIVELY ATTACKED THE CONDITIONS
AS INDEFINITE AND INADEQUATE, DEMANDING IN ADDITION TO BE INDEMNIFIED
FOR CAPITAL LOSS.  C&O-B&O AND THEIR FAMILY LINES FOR THE FIRST TIME
INTRODUCED EVIDENCE THAT THE MERGER WOULD ADVERSELY AFFECT THEM, AND
ARGUED THAT THE INDEMNIFICATION CONDITION OF THE ORIGINAL ORDER WOULD
CREATE A COMMUNITY OF INTEREST BETWEEN THE PROTECTED ROADS AND PENN
CENTRAL.  THE DEPARTMENT OF JUSTICE URGED POSTPONEMENT TO CONSIDER THE
QUESTIONS RAISED CONCERNING THE CONDITIONS AND THE EVIDENCE OF ADVERSE
EFFECT OFFERED BY C&O-B&O.  (FN3) 

THE ICC RESCINDED THE INDEMNITY CONDITIONS PENDING A HEARING ON
WHETHER THEY SHOULD BE MODIFIED AND WHETHER A CAPITAL LOSS
INDEMNIFICATION CONDITION SHOULD BE ADDED, BUT REFUSED ON THE GROUND OF
LACHES TO HEAR THE EVIDENCE OFFERED BY THE C&O. 328 I.C.C. 304, 318. 
THE ICC REAFFIRMED ITS APPROVAL OF THE MERGER SUBJECT TO PENN-CENTRAL'S
ACCEPTANCE OF THE CONDITIONS AS FINALLY FORMULATED, ALTHOUGH NOT
FORECLOSING PENN-CENTRAL FROM SEEKING JUDICIAL REVIEW OF ANY PROVISION
FOR CAPITAL LOSS INDEMNIFICATION.  328 I.C.C., AT 329.  THE DISTRICT
COURT DENIED INTERLOCUTORY RELIEF ENJOINING PENN AND CENTRAL FROM GOING
FORWARD WITH THE MERGER.  (FN4)

              II. 

THE STATUTORY DUTY OF THE ICC IS CLEAR.  SECTION 5(2)(B) OF THE
INTERSTATE COMMERCE ACT, AS AMENDED BY THE TRANSPORTATION ACT OF 1940,
AUTHORIZES THE AGENCY TO APPROVE ONLY THOSE CONSOLIDATIONS IT FINDS
"WILL BE CONSISTENT WITH THE PUBLIC INTEREST  ...  ."  54 STAT.  906,
49 U.S.C. SEC 5(2)(B).  THE STATUTE CREATES NO PRESUMPTION THAT MERGERS
GENERALLY ARE EITHER CONSISTENT OR INCONSISTENT WITH THAT INTEREST;
RATHER, IT REQUIRES THAT EACH PROPOSAL BE EXAMINED IN DEPTH TO
DETERMINE ITS EFFECTS UPON THE NATIONAL TRANSPORTATION SYSTEM.  THUS,
THE ICC IS EXPLICITLY DIRECTED TO CONSIDER "(1) THE EFFECT OF THE
PROPOSED TRANSACTION UPON ADEQUATE TRANSPORTATION SERVICE TO THE
PUBLIC; (2) THE EFFECT UPON THE PUBLIC INTEREST OF THE INCLUSION, OR
FAILURE TO INCLUDE, OTHER RAILROADS IN THE TERRITORY INVOLVED IN THE
PROPOSED TRANSACTION; (3) THE TOTAL FIXED CHARGES RESULTING FROM THE
PROPOSED TRANSACTION; AND (4) THE INTEREST OF THE CARRIER EMPLOYEES
AFFECTED."  49 U.S.C. SEC 5(2)(C).  THE NATIONAL TRANSPORTATION POLICY
IS THE CONTROLLING GUIDE, MCLEAN TRUCKING CO. V. UNITED STATES, 321
U.S. 67, 82, AND THAT POLICY REQUIRES THE COMMISSION "TO PROMOTE SAFE,
ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND FOSTER SOUND ECONOMIC
CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL CARRIERS  ... TO THE
END OF DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL
TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND RAIL, AS WELL AS OTHER
MEANS, ADEQUATE TO MEET THE NEEDS OF THE COMMERCE OF THE UNITED STATES,
OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE."   49 U.S.C., NOTE
PRECEDING SEC 1.  THESE PROVISIONS CALL FOR THE APPLICATION OF
DISCERNING JUDGMENT TO A WIDE RANGE OF FACTORS, AND PRECLUDE THE
POSITION THAT THE PURPOSE OF THE 1940 ACT IS SIMPLY TO PROMOTE RAILROAD
CONSOLIDATION.  (FN5)  THE ICC HAS RECOGNIZED THAT INQUIRY INTO A
PROPOSED TRANSACTION DOES NOT END WITH THE POSSIBILITIES FOR INCREASED
ECONOMIES, BUT EXTENDS TO "THE EFFECT OF THE TRANSACTION UPON ADEQUATE
TRANSPORTATION SERVICE TO ALL PARTS OF THE PUBLIC WHICH WOULD BE SO
AFFECTED,"  (FN6)  WHICH ENCOMPASSES THE "DUTY, AS AN ADMINISTRATIVE
MATTER, TO CONSIDER THE EFFECT OF THE MERGER ON COMPETITORS AND ON THE
GENERAL COMPETITIVE SITUATION IN THE INDUSTRY IN THE LIGHT OF THE
OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY."  MCLEAN TRUCKING CO.
V. UNITED STATES, SUPRA, AT 87.  "THE PUBLIC INTEREST IS THE PRIME
CONSIDERATION, AND IN MAKING THAT DETERMINATION WE MUST HAVE REGARD FOR
ALL RELEVANT FACTORS."  TOLEDO, P.&W.R. CO. - CONTROL, 295 I.C.C. 523,
547. 

A CRITICAL FACTOR, NOT IN MY VIEW PROPERLY APPLIED IN THIS CASE, IS
"THE EFFECT UPON THE PUBLIC INTEREST OF THE INCLUSION, OR FAILURE TO
INCLUDE, OTHER RAILROADS IN THE TERRITORY INVOLVED IN THE PROPOSED
TRANSACTION  ...  ."  (FN7)  THE COMMISSION IS AUTHORIZED, "AS A
PREREQUISITE TO ITS APPROVAL OF THE PROPOSED TRANSACTION, TO REQUIRE,
UPON EQUITABLE TERMS, THE INCLUSION OF ANOTHER RAILROAD OR OTHER
RAILROADS IN THE TERRITORY INVOLVED, UPON PETITION BY SUCH RAILROAD OR
RAILROADS REQUESTING SUCH INCLUSION, AND UPON A FINDING THAT SUCH
INCLUSION IS CONSISTENT WITH THE PUBLIC INTEREST."  49 U.S.C. SEC
5(2)(D).  THE ICC RECOGNIZES THAT IT IS REQUIRED TO CONSIDER THE ISSUE
OF INCLUSION EVEN WHEN NO PETITION IS FILED,  (FN8)  BECAUSE IF A
PROPOSED TRANSACTION "WOULD ENDANGER OR IMPAIR THE OPERATIONS OF OTHER
CARRIERS CONTRARY TO THE PUBLIC INTEREST," CHICAGO, B.&Q.R. CO. -
CONTROL, SUPRA, 271 I.C.C., AT 157, INCLUSION OF THE AFFECTED CARRIERS
IS REQUIRED BY AND NOT MERELY CONSISTENT WITH THE PUBLIC INTEREST. 

IN THIS CASE THE ICC, ALTHOUGH DETERMINING THAT THE THREE ROADS
PERFORM AN ESSENTIAL SERVICE AND THAT THEIR INCLUSION IN SOME MAJOR
SYSTEM IS REQUIRED BY THE PUBLIC INTEREST, TAKES THE POSITION THAT ITS
DUTY AS TO INCLUSION IS SUFFICIENTLY DISCHARGED WHEN IT PROVIDES FOR
THE POSSIBILITY OF INCLUSION IN EITHER N&W OR PENN-CENTRAL, AND
MEANWHILE PROMISES TO IMPOSE PROTECTIVE CONDITIONS.  MY DISAGREEMENT IS
NOT WITH THE PROPOSITION THAT THE ACT VESTS WIDE DISCRETION IN THE
AGENCY TO ALLOW A MERGER TO GO FORWARD WHILE CONDITIONS AS TO INCLUSION
ARE WORKED OUT.  THE COMMISSION HAS BROAD AUTHORITY TO APPROVE
TRANSACTIONS "SUBJECT TO SUCH TERMS AND CONDITIONS AND SUCH
MODIFICATIONS AS IT SHALL FIND TO BE JUST AND REASONABLE  ...  ," SEC
5(2)(B), AND "MAY FROM TIME TO TIME, FOR GOOD CAUSE SHOWN, MAKE SUCH
ORDERS, SUPPLEMENTAL TO ANY ORDER MADE UNDER PARAGRAPH (1), (2), OR
(7), OF THIS SECTION, AS IT MAY DEEM NECESSARY OR APPROPRIATE," SEC
5(9).  IT HAS IN FACT OCCASIONALLY RESERVED JURISDICTION (1) TO WORK
OUT EQUITABLE TERMS FOR AN INCLUSION IT HAS ALREADY DETERMINED IS
REQUIRED BY THE PUBLIC INTEREST, NEW YORK CENTRAL UNIFICATION, 154
I.C.C. 489, 493-494; (FN9)  AND EVEN (2) TO DETERMINE AFTER
CONSUMMATION WHETHER INCLUSION WILL BE CONSISTENT WITH OR REQUIRED BY
THE PUBLIC INTEREST, UNION PAC.  R. CO. UNIFICATION, 189 I.C.C. 357,
363.  (FN10)  BUT DECISIONS OF THIS SORT PROCEED UPON THE ASSUMPTION
THAT INCLUSION WILL LATER BE POSSIBLE, AND THAT THEREFORE THE FINDING
THAT THE PROPOSED CONSOLIDATION IS IN THE PUBLIC INTEREST WILL NOT BE
UNDERMINED.  THIS ASSUMPTION IS NOT ALWAYS WARRANTED.  AN INCLUSION MAY
TURN OUT TO BE IMPOSSIBLE, EITHER BECAUSE OF INABILITY TO WORK OUT
EQUITABLE TERMS, A CIRCUMSTANCE UPON WHICH INCLUSION ORDERS HAVE
INVARIABLY BEEN CONDITIONED, OR BECAUSE UPON FULL CONSIDERATION THE
EFFECTS OF THE CONTEMPLATED INCLUSION MIGHT BE REGARDED AS SO
DETRIMENTAL THAT THE PROPOSED MERGER WHICH MADE NECESSARY THE INCLUSION
WOULD BE AGAINST THE PUBLIC INTEREST.    THE COMMISSION MUST DECIDE, IN
THE FIRST INSTANCE, WHETHER THE RISK OF SUCH ULTIMATE DEVELOPMENTS IS
ACUTE ENOUGH TO COUNSEL AGAINST APPROVAL OF A CONSOLIDATION SUBJECT TO
THE WORKING OUT OF THE TERMS OF AN INCLUSION OR TO THE WORKING OUT OF
BOTH THE TERMS AND THE INCLUSION.  SEE JAFFE, JUDICIAL CONTROL OF
ADMINISTRATIVE ACTION 565-567 (1965).  BUT RESORT TO THE PRACTICE OF
DEFERRING THE ACCOMPLISHMENT OF INCLUSIONS OR OTHER ENDS REQUIRED BY
THE PUBLIC INTEREST MUST BE CAREFULLY WEIGHED AND REVIEWED.  WHERE
THERE IS LITTLE OR NO DANGER THAT INCLUSION CONSISTENT WITH THE PUBLIC
INTEREST AND UPON EQUITABLE TERMS MIGHT TURN OUT TO BE IMPOSSIBLE, IT
IS SUFFICIENTLY LIKELY, DESPITE DEFERRAL, THAT THE COMMISSION WILL HAVE
FULFILLED ITS BASIC STATUTORY DUTY.  WHERE THERE IS A SIGNIFICANT
POSSIBILITY, HOWEVER, THAT A DEFERRED INCLUSION UPON WHICH A FINDING OF
PUBLIC INTEREST IS PREMISED WILL BE UNATTAINABLE OR ATTAINABLE ONLY BY
SETTING INTO MOTION NEW FORCES WHICH HAVE NOT BEEN WEIGHED IN
EVALUATING THE BASIC PROPOSAL, THEN THE COMMISSION'S STATUTORY DUTY TO
CONSIDER ALL THE RELEVANT FACTORS HAS NOT BEEN PROPERLY DISCHARGED. 
AND ICC ACTION OF THIS SORT GENERALLY CREATES DANGERS FAR GREATER THAN
THOSE WHICH NORMALLY ACCRUE WHEN AN AGENCY OR COURT FAILS TO APPLY THE
GOVERNING STANDARD TO ALL THE RELEVANT FACTS, SINCE THE DECISION TO
ALLOW CONSUMMATION IS OFTEN IRREVERSIBLE, AS IT CONCEDEDLY IS IN THIS
CASE, OR REVERSIBLE ONLY AT ENORMOUS EXPENSE. 

PRIOR AUTHORIZATIONS DEFERRING DECISION ON INCLUSIONS HELD TO BE
REQUIRED BY THE PUBLIC INTEREST ENTAILED NO SIGNIFICANT RISK THAT THE
ICC HAD APPROVED A CONSOLIDATION WITHOUT FULFILLING ITS STATUTORY
DUTY.  WHEN, IN NEW YORK CENTRAL UNIFICATION, SUPRA, THE COMMISSION
AUTHORIZED IMMEDIATE CONSUMMATION BUT RETAINED JURISDICTION TO ASSURE
THAT TERMS WOULD BE WORKED OUT FOR THE PURCHASE OF LINES WHOSE PURCHASE
IT HAD REQUIRED BECAUSE THEIR PRESERVATION WAS FOUND TO BE ESSENTIAL TO
THE PUBLIC INTEREST, THERE WAS NO DOUBT THAT EQUITABLE TERMS COULD BE
ARRANGED.  THE ROADS TO BE INCLUDED WERE SHORT LINES, COMPLEMENTARY TO
THE NEW YORK CENTRAL SYSTEM, SO CONSUMMATION OF THE PROPOSED
UNIFICATION CREATED NO REASON TO EXPECT A DETRIMENTAL EFFECT. 
MOREOVER, THE ROADS WERE REQUIRED TO SUBMIT THE ISSUE OF VALUE TO
ARBITRATION IN THE EVENT THEY FAILED TO AGREE.  154 I.C.C., AT 493. 
WHEN, IN UNION PAC. R. CO., SUPRA, THE COMMISSION DEFERRED UNTIL AFTER
CONSUMMATION BOTH THE QUESTION WHETHER THE PUBLIC INTEREST REQUIRED
INCLUSION AND THE MATTER OF WORKING OUT TERMS, THERE WAS NO INDICATION
THAT INCLUSION MIGHT BE IMPOSSIBLE BECAUSE OF ITS EFFECTS WITHOUT
RENDERING THE PROPOSED TRANSACTION AGAINST THE PUBLIC INTEREST, OR THAT
EQUITABLE TERMS FOR INCLUSION MIGHT BE UNATTAINABLE, OR THAT THE SHORT
LINES INVOLVED WOULD BE SUBJECTED TO DANGER FROM TRAFFIC DIVERSION OR
OTHERWISE DURING THE PERIOD BETWEEN CONSUMMATION AND INCLUSION.  THE
TRANSACTION AUTHORIZED ONLY ACCOUNTING CHANGES; NO CHANGE IN OPERATION
WAS EITHER CONTEMPLATED OR POSSIBLE.  189 I.C.C., AT 363.   (FN11) 

THIS CASE IS IN STRIKING CONTRAST.  ALLEGATIONS ARE MADE BY THE
DEPARTMENT OF JUSTICE AND NUMEROUS OTHER PARTIES THAT INCLUSION OF THE
PROTECTED ROADS IN EITHER OF THE MAJOR SYSTEMS CONTEMPLATED BY THE
COMMISSION MIGHT NOT BE POSSIBLE CONSISTENT WITH THE PUBLIC INTEREST OR
UPON EQUITABLE TERMS.  THESE ARGUMENTS DEMONSTRATE THAT, BECAUSE OF
POSSIBLE DIFFICULTIES INVOLVED IN THE INCLUSION PROCEEDING AND IN
ESTABLISHING ACCEPTABLE INTERIM CONDITIONS, THE "OPPORTUNITIES FOR THE
ULTIMATE INCLUSION OF E-L, D&H AND B&M IN A MAJOR RAIL SYSTEM  ...  "
WHICH THE COMMISSION HAS ENDEAVORED TO PRESERVE CREATE SERIOUS
UNCERTAINTIES. 

THE FIRST AND MORE OBVIOUSLY UNCERTAIN ALTERNATIVE IS INCLUSION IN
PENN-CENTRAL ITSELF.  THE COMMISSION RETAINED JURISDICTION TO ALLOW THE
THREE CARRIERS TO SEEK INCLUSION IN PENN-CENTRAL WITHIN ONE YEAR AFTER
FINAL DENIAL OF ANY OF THEIR PETITIONS FOR INCLUSION IN N&W.  ALL
CONCERNED RECOGNIZE THAT INCLUSION IN N&W IS THE PREFERABLE SOLUTION,
SINCE INCLUSION OF THE ROADS IN PENN-CENTRAL WOULD CREATE A VIRTUAL
MONOPOLY OF ALL RAIL TRAFFIC IN MOST OF NEW ENGLAND AND NEW YORK. 
(FN12)  (SEE APPENDIX A FOR A MAP DEPICTING THIS RESULT.)  IT IS TRUE
THAT COMMISSIONER WEBB SAID IN THE N&W INCLUSION PROCEEDING THAT "THE
PENN-CENTRAL REPORTS INDICATE THAT THE MERGER WOULD BE CONSISTENT WITH
THE PUBLIC INTEREST NOTWITHSTANDING ANY LESSENING OF INTRAMODAL
COMPETITION RESULTING FROM INCLUSION OF E-L, D&H, AND B&M," NORFOLK &
W.R. CO. - MERGER, F.D. NO. 21510, P. 27, BUT THIS STATEMENT IS REFUTED
BY THE PENN-CENTRAL REPORTS THEMSELVES.  BOTH THE EXAMINERS AND THE
COMMISSION EXPRESSLY RESERVED FOR A LATER TIME THE QUESTION WHETHER
INCLUSION OF THE ROADS IN PENN-CENTRAL WOULD BE CONSISTENT WITH THE
PUBLIC INTEREST,  (FN13)  AND RATHER THAN IMPLYING THAT THE MERGER
WOULD BE IN THE PUBLIC INTEREST DESPITE INCLUSION OF THE PROTECTED
ROADS, THE EXAMINERS' REPORT AND THE COMMISSION'S OPINIONS INDICATE
THAT THE MERGER WAS APPROVED UNDER THE ASSUMPTION THAT THE PROTECTED
ROADS WOULD BE INCLUDED IN N&W.  (FN14) 

THE "OPPORTUNITY" FOR INCLUSION IN THE N&W HARDLY PRESENTS A LESS
RISKY ALTERNATIVE.  THE N&W PROCEEDING HAS GONE TO HEARING AND
COMMISSIONER WEBB, ACTING AS PRESIDING OFFICER, HAS ISSUED A REPORT
RECOMMENDING INCLUSION IN N&W OF E-L AND D&H, AND AUTHORIZING INCLUSION
OF B&M IF THE PARTIES ARE ABLE TO AGREE TO TERMS.  THERE HAS AS YET
BEEN NO ACTION BY THE ICC ON THE REPORT; AND BASED UPON ITS CONTENTS
AND THE OBJECTIONS RAISED IN THIS COURT, THERE IS A SIGNIFICANT
POSSIBILITY, GIVEN THE PRESENT STATE OF CIRCUMSTANCES, THAT INCLUSION
IN N&W MIGHT BE UNATTAINABLE OR ATTAINABLE ONLY AT THE PRICE OF
RENDERING THE PENN-CENTRAL MERGER AGAINST THE PUBLIC INTEREST, AND
THAT, EVEN IF INCLUSION COULD BE ACCOMPLISHED CONSISTENT WITH THE
PUBLIC INTEREST, IT MIGHT BE IMPOSSIBLE TO WORK OUT EQUITABLE TERMS. 
APPELLEES MAKE MUCH OF THE FACT THAT N&W, BY CONSUMMATING ITS MERGER
WITH NICKEL-PLATE, "IRREVOCABLY AGREED TO INCLUDE THESE THREE
PETITIONERS IN THEIR SYSTEM UPON TERMS AGREED UPON AMONG THEMSELVES OR,
IF NECESSARY, PRESCRIBED BY THE ICC, PROVIDED SUCH INCLUSION IS FOUND
TO BE CONSISTENT WITH THE PUBLIC INTEREST."  327 I.C.C., AT 529.  BUT
THIS CONDITION EXPRESSLY ASSUMES A FAVORABLE RESOLUTION OF BOTH OF THE
QUESTIONS IN DISPUTE.  AS COMMISSIONER WEBB SAID IN THE N&W INCLUSION
REPORT: 

"THE ONLY OBLIGATION EXPRESSLY IMPOSED ON N&W  ...  WAS TO INCLUDE
THE PETITIONERS IF THE COMMISSION FOUND SUCH INCLUSION TO BE CONSISTENT
WITH THE PUBLIC INTEREST AND IF THE COMMISSION ALSO FOUND THAT THE
INCLUSION COULD BE EFFECTED ON TERMS 'EQUITABLE TO ALL PARTIES
INVOLVED,' BOTH FINDINGS TO BE SUBJECT TO FULL JUDICIAL REVIEW."  N&W
INCLUSION REPORT, AT 16. 

COMMISSIONER WEBB'S RECOMMENDED DISPOSITION REVEALS CLEARLY THAT THE
DANGERS STEMMING FROM DEFERRAL EXIST EVEN AS TO INCLUSION IN N&W.  HE
REJECTED AN ARGUMENT OF C&O THAT ITS PLAN FOR ABSORPTION OF THE THREE
ROADS INTO A MERGED C&O-N&W SYSTEM WAS MUTUALLY EXCLUSIVE WITH
INCLUSION OF THE ROADS INTO AN INDEPENDENT N&W, AND THE CONTENTIONS OF
C&O AND OTHERS THAT THEY WOULD BE ADVERSELY AFFECTED BY THE INCLUSION. 
HE FOUND INCLUSION OF ALL THREE ROADS CONSISTENT WITH THE PUBLIC
INTEREST, POINTING OUT THAT THE ROADS WOULD BE ABLE TO SURVIVE IN N&W
DESPITE SIGNIFICANT LOSSES TO PENN-CENTRAL, AND THAT GREATER INTRAMODAL
AND INTERMODAL COMPETITION AND BETTER SERVICES WOULD BECOME POSSIBLE. 
N&W INCLUSION REPORT, AT 31-32.  HOWEVER, HE FOUND SUBSTANCE TO
ARGUMENTS RELATING TO EACH OF THE THREE ROADS THAT THEIR REQUIRED
INCLUSION WOULD BE AGAINST THE PUBLIC INTEREST.  SINCE AUTHORIZATION OF
THE PENN-CENTRAL MERGER IS PREMISED ON A FINDING THAT THE ROADS MUST BE
INCLUDED IN A MAJOR SYSTEM, THESE ARGUMENTS ARE OF GREAT RELEVANCE
HERE, AND I ADDRESS MYSELF TO THEM. 

AS TO E-L, N&W ARGUED INCLUSION WOULD BE TOO GREAT A BURDEN IN LIGHT
OF ITS FINANCIAL CONDITION; FOR, ALTHOUGH E-L SHOWED A MODEST PROFIT IN
1965 FOR THE FIRST TIME IN YEARS, N&W CONTENDED IT WAS TOO SOON TO DRAW
ANY OPTIMISTIC CONCLUSION AND THAT IT WAS NO MORE ABLE NOW TO ABSORB E
L THAN IT HAD BEEN A FEW YEARS BEFORE WHEN THE COMMISSION REFUSED TO
REQUIRE E-L'S INCLUSION IN N&W BECAUSE OF E-L'S "PRECARIOUS FINANCIAL
PLIGHT" AND "THE BURDEN ANOTHER RAILROAD WOULD ASSUME IF IT ABSORBED
THE ERIE-LACKAWANNA NOW  ...  ."  324 I.C.C., AT 25.  COMMISSIONER WEBB
RECOGNIZED THAT THIS ARGUMENT HAD SOME MERIT, AND CHARACTERIZED E-L'S
GROWTH AS "ERRATIC."  N&W INCLUSION REPORT, AT 17, 10.  SO ENORMOUS IS
E-L'S DEBT, IN FACT, THAT THE PARTIES THEMSELVES AGREED IT "PRECLUDES A
MERGER OF N&W AND E-L NOW OR AT ANY TIME IN THE NEAR FUTURE."  ID., AT
84.  AS A CONSEQUENCE, THE COMMISSIONER RECOMMENDED THAT ONLY CONTROL
OF E-L BY N&W BE REQUIRED, LOOKING TO EVENTUAL MERGER WITH ASSUMPTION
OF LIABILITIES WHEN CIRCUMSTANCES WOULD PERMIT.  D&H HAS NO FINANCIAL
PROBLEM WHICH WOULD INTERFERE WITH IMMEDIATE MERGER, BUT COMMISSIONER
WEBB FOUND THAT THE ONLY SUFFICIENT CONNECTION BETWEEN D&H AND N&W WAS
E-L, AND THEREFORE, RECOMMENDED THAT AN ORDER REQUIRING INCLUSION OF
D&H IN N&W BE CONDITIONED ON INCLUSION OF E-L, ID., AT 139, WHICH
CONSEQUENTLY MAKES THE ARGUMENTS RELATING TO E-L APPLICABLE TO D&H AS
WELL.  WITH RESPECT TO B&M, COMMISSIONER WEBB AGREED WITH N&W AND
REFUSED TO RECOMMEND THAT ITS INCLUSION IN ANY FORM BE REQUIRED,
BECAUSE OF B&M'S POOR FINANCIAL CONDITION AND LIMITED PROSPECTS FOR
RECOVERY.  HE RECOMMENDED ONLY THAT INCLUSION BE AUTHORIZED, IN THE
UNLIKELY EVENT N&W SAW FIT TO AGREE TO PAY, WITHIN FIVE YEARS OF THE
INCLUSION, A MINIMUM RATE FOR B&M SHARES EQUAL TO ALMOST TWICE THEIR
VALUE UNDER COMMISSIONER WEBB'S OWN APPRAISAL.  ID., AT 153, 156. 

IT IS NOT ENTIRELY CLEAR, THEREFORE, THAT E-L AND D&H WILL BE ORDERED
INCLUDED IN N&W, AND THE LIKELIHOOD THAT B&M WILL NOT BE INCLUDED UNDER
PRESENT CIRCUMSTANCES IS GREAT.  THEREFORE, IT IS REASONABLY POSSIBLE
THAT THE PREMISE UPON WHICH THE COMMISSION HAS PROCEEDED IN AUTHORIZING
CONSUMMATION OF PENN-CENTRAL - THAT ALL THREE MUST BE INCLUDED IN A
MAJOR SYSTEM - MAY BE UNATTAINABLE THROUGH INCLUSION IN N&W BECAUSE THE
REQUIRED INCLUSION OF AT LEAST ONE AND POSSIBLY ALL THREE MAY NOT BE
CONSISTENT WITH THE PUBLIC INTEREST.  NEITHER IS IT A SUFFICIENT ANSWER
TO THIS UNCERTAINTY THAT B&M COULD BE INCLUDED IN PENN-CENTRAL, SINCE
ITS VALUE TO THAT SYSTEM BECAUSE OF THE MONOPOLY IT WOULD MAKE POSSIBLE
IN LARGE AREAS OF NEW ENGLAND WOULD MAKE INCLUSION ECONOMICALLY
FEASIBLE AT EQUITABLE TERMS.  AS WE HAVE SEEN, WHETHER PENN-CENTRAL
WOULD BE WORTH THE PRICE DESPITE THIS RESULT IS A MATTER OF SOME
DISPUTE, WHICH THE ICC HAS NEVER CONSIDERED. 

THE COMMISSION'S DUTY TO CONSIDER ALL THE RELEVANT EFFECTS OF A
CONSOLIDATION BEFORE AUTHORIZING IT EXTENDS, MOREOVER, NOT ONLY TO
WHETHER AN INCLUSION NECESSARY TO MAKE THE PROPOSED TRANSACTION
CONSISTENT WITH THE PUBLIC INTEREST IS IN FACT ATTAINABLE, BUT ALSO TO
WHETHER SUCH AN INCLUSION, EVEN THOUGH ATTAINABLE, MIGHT SET IN MOTION
EVENTS WHICH COULD PUT THE BASIC TRANSACTION PROPOSED IN A LESS
FAVORABLE LIGHT.  THUS, EVEN IF IT IS ASSUMED THAT INCLUSION OF E-L AND
D&H IN N&W WILL OCCUR, AND THAT LEAVING B&M TEMPORARILY INDEPENDENT
WOULD NOT UNDERMINE THE CONSISTENCY OF THE PENN-CENTRAL MERGER WITH THE
PUBLIC INTEREST, IT IS INCUMBENT UPON THE ICC TO CONSIDER THE POTENTIAL
EFFECTS ON THE PUBLIC INTEREST OF SUCH AN OUTCOME BEFORE AUTHORIZING
CONSUMMATION.  CLEARLY, THE ICC HAS NOT DONE SO, AND ON THIS RECORD
THERE IS A SUBSTANTIAL LIKELIHOOD THAT EFFECTS OF ENORMOUS SIGNIFICANCE
TO THE PUBLIC INTEREST MIGHT RESULT. 

COMMISSIONER WEBB REFUSED TO CONSIDER N&W AND C&O'S PLAN FOR MERGER
WITH INCLUSION OF THE SMALLER ROADS, BECAUSE HE CONCLUDED THE ISSUE OF
INCLUSION COULD BE SETTLED WITHOUT REGARD TO THE PLAN.  IT IS CLEAR,
HOWEVER, FROM THE COMMISSIONER'S RECOMMENDATIONS, THAT ADOPTION OF THE
N&W-C&O PLAN MAY WELL BE A CONSEQUENCE OF THE PENN-CENTRAL MERGER BOTH
THROUGH ITS EFFECT ON THE SMALLER ROADS AND ITS EFFECT DIRECTLY UPON
N&W AND C&O.  THE UNCERTAINTIES WITH RESPECT TO INCLUSION OF THE ROADS
IN N&W WILL BE HIGHLY PROBATIVE EVIDENCE WHEN THE COMMISSION GETS
AROUND TO CONSIDERING THE N&W-C&O PROPOSAL.  E-L'S LARGE DEBT, FOR
EXAMPLE, WHICH NOW PREVENTS ITS OUTRIGHT MERGER IN N&W, WOULD BE LESS
OF AN OBSTACLE IF N&W AND C&O WERE COMBINED AND THEREBY STRENGTHENED. 
EVEN MORE SIGNIFICANT IS THE FACT THAT B&M'S INCLUSION, PRESENTLY
REGARDED AS IMPOSSIBLE IN N&W, WOULD PROBABLY BE POSSIBLE IF N&W WERE
COMBINED WITH C&O-B&O.  (FN15)  THERE IS NO DOUBT, MOREOVER, THAT C&O
AND N&W WILL, IN ADDITION TO OFFERING A SOLUTION TO THE INCLUSION
PROBLEM, ALLEGE THAT THEY STAND TO BE SERIOUSLY HURT BY THE PENN
CENTRAL SYSTEM UNLESS THEY ARE ALLOWED TO COMBINE.  ALTHOUGH
COMMISSIONER WEBB REFUSED TO HEAR EVIDENCE OFFERED BY C&O TO PROVE SUCH
ALLEGATIONS, AND ALTHOUGH THE COMMISSION ALSO REFUSED ON THE GROUND OF
LACHES TO GRANT C&O'S PETITION TO REOPEN PENN-CENTRAL TO INTRODUCE
EVIDENCE OF TRAFFIC DIVERSION, THE ICC AGREED TO MODIFY THE FINDING OF
THE EXAMINERS IN THIS CASE, PENN-CENTRAL REPORT, AT 305, THAT THE NET
EFFECT OF PENN-CENTRAL WILL NOT BE DETRIMENTAL TO C&O, CNJ AND OTHER
CARRIERS OR TO THEIR ABILITY TO PROVIDE GENERAL TRANSPORTATION
SERVICE.  INSTEAD, THE COMMISSION SUBSTITUTED THE FINDING THAT A
DETRIMENTAL EFFECT "HAS NOT BEEN SHOWN OF RECORD  ...  ," 328 I.C.C.,
AT 318, AND THEREBY LEFT IT OPEN TO C&O TO ALLEGE AND PROVE AT SOME
LATER TIME THAT ITS MERGER WITH N&W IS IN THE PUBLIC INTEREST AT LEAST
IN PART BECAUSE OF TRAFFIC DIVERSION CAUSED BY PENN-CENTRL.  WITH
RESPECT TO N&W, SOME EVIDENCE OF ADVERSE EFFECT FROM PENN-CENTRAL SEEMS
PROBABLE IN LIGHT OF COMMISSIONER WEBB'S REFUSAL TO DEDUCT FROM THE
VALUE OF THE THREE ROADS THE LOSSES ANTICIPATED THROUGH DIVERSION OF
TRAFFIC TO PENN-CENTRAL, BECAUSE "N&W HAS RESISTED CORRESPONDING
ADJUSTMENTS IN ITS OWN EARNINGS DESPITE ITS ADMISSIONS THAT IT WOULD
SUFFER SERIOUS LOSSES OF TRAFFIC TO PENN-CENTRAL  ...  ."  N&W
INCLUSION REPORT, AT 44.  THE REFUSAL TO DEDUCT ANY OF THE ANTICIPATED
LOSSES MEANT, IN EFFECT, THAT COMMISSIONER WEBB PROCEEDED UPON THE
ASSUMPTION THAT N&W WOULD LOSE THE SAME PROPORTION OF TRAFFIC TO PENN
CENTRAL AS E-L EXPECTED TO LOSE.  (FN16)    IT THEREFORE APPEARS THAT
PENN-CENTRAL WILL INCREASE THE LIKELIHOOD OF, AND MAY ACTUALLY CAUSE,
AN AFFILIATION OF N&W AND C&O.  THE ICC HAS GIVEN NO THOUGHT TO WHETHER
SUCH AN AFFILIATION WOULD BE IN THE PUBLIC INTEREST.  IT WOULD CREATE A
VIRTUAL RAIL MONOPOLY IN SOME SOUTHEASTERN STATES (SEE APPENDIX B FOR A
MAP DEPICTING THIS RESULT), WHICH INCLUDES IMPORTANT TRAFFIC IN COAL
BETWEEN THE BORDER STATES AND THE NORFOLK PORT AREA, FROM WHERE IT IS
EXPORTED ABROAD, AND IT IS STRONGLY OPPOSED BY BOTH PENN AND CENTRAL. 
HAD THE ICC FACED THE PROBLEM OF INCLUSION, IT MIGHT HAVE BEEN LED TO
CONSIDER THE POSSIBILITY THAT PENN-CENTRAL COULD CAUSE OR INCREASE THE
LIKELIHOOD OF AN N&W-C&O AFFILIATION.  ONLY BY CONSIDERING THIS
POSSIBILITY COULD THE ICC FULFILL ITS OBLIGATION TO CONSIDER ALL THE
RELEVANT FACTORS BEFORE APPROVING THE MERGER. 

THE "OPPORTUNITY" RESERVED BY THE ICC FOR INCLUSION OF THE ROADS IN
N&W IS THEREFORE, LIKE THE "OPPORTUNITY" RESERVED FOR INCLUSION IN PENN
CENTRAL, SHROUDED IN DOUBT AS TO WHETHER INCLUSION COULD BE REQUIRED
CONSISTENT WITH THE PUBLIC INTEREST.  CONCEDEDLY, THERE IS FAR MORE
REASON TO BELIEVE THAT VOLUNTARY INCLUSION IN N&W COULD AT LEAST BE
ACCOMPLISHED CONSISTENT WITH THE PUBLIC INTEREST THAN COULD INCLUSION
IN PENN-CENTRAL.  BUT ON THE OTHER HAND, WHILE EQUITABLE TERMS COULD
PROBABLY BE ARRANGED FOR INCLUSION IN PENN-CENTRAL, IT IS OPEN TO
SERIOUS CONTROVERSY WHETHER EQUITABLE TERMS WILL BE ATTAINABLE FOR
INCLUSION OF THE ROADS IN N&W.  COMMISSIONER WEBB HAS FOUND, OF COURSE,
THAT EQUITABLE TERMS FOR B&M'S INCLUSION IN N&W CANNOT BE WORKED OUT,
AND A POSSIBLE CONSEQUENCE OF THIS WILL BE TO CREATE PRESSURE IN FAVOR
OF THE N&W-C&O PLAN OR COMPEL INCLUSION OF B&M IN PENN-CENTRAL.  BUT
EVEN AS TO E-L AND D&H (BECAUSE ITS INCLUSION WILL PROBABLY BE
DEPENDENT ON E-L'S), THE PRESENT CONTROVERSY SURROUNDING THE CONDITIONS
DESIGNED FOR INTERIM PROTECTION MAKES CONSIDERABLY UNCERTAIN WHETHER
EQUITABLE TERMS WILL BE POSSIBLE ONCE PENN-CENTRAL IS CONSUMMATED. 

THE PURPOSE OF THE TRAFFIC AND INDEMNITY CONDITIONS ORIGINALLY
IMPOSED BUT NOW BEING RECONSIDERED IS TO MAINTAIN THE PRECONSUMMATION
STATUS QUO BETWEEN PENN-CENTRAL AND THE THREE ROADS.  ONE OBVIOUS END
INFERRED FROM THIS PURPOSE IS TO PREVENT IRREPARABLE HARM TO THE THREE
ROADS.  BUT INHERENT IN THE FINDING THAT THE PUBLIC INTEREST REQUIRES
EVENTUAL INCLUSION OF THE ROADS IN A MAJOR SYSTEM AND IN THE FACT THAT
THE PROTECTIVE CONDITIONS ARE INTERIM ONLY IS THE PURPOSE OF KEEPING
THE ROADS INTACT SO THEIR INCLUSION ON EQUITABLE TERMS WILL BE
POSSIBLE.  THERE IS SUBSTANTIAL CONTROVERSY, HOWEVER, OVER THE VALIDITY
AND EFFECTIVENESS OF EACH OF THE PROPOSED CONDITIONS.  THE COMMISSION
HAS, IN FACT REOPENED THE PENN-CENTRAL PROCEEDING FOR HEARINGS TO
DETERMINE IN WHAT RESPECTS THE CONDITIONS ORIGINALLY IMPOSED SHOULD BE
MODIFIED AND WHETHER OR NOT A CAPITAL LOSS INDEMNITY SHOULD BE
IMPOSED.  328 I.C.C., AT 328.  MODIFICATIONS ARE TO BE APPLIED
RETROACTIVELY, AND PENN-CENTRAL IS TO HAVE JUDICIAL REVIEW ONLY ON THE
CAPITAL INDEMNITY ISSUE.  BUT DESPITE THESE ASSURANCES, THE THREE
CARRIERS AND OTHER NONPROTECTED CARRIERS ATTACK THE CONDITIONS ON
SEVERAL GROUNDS, AT LEAST SOME OF WHICH CANNOT LIGHTLY BE DISMISSED. 

THERE ARE THREE TYPES OF CONDITIONS INVOLVED:  (1) TRAFFIC
CONDITIONS; (2) INDEMNITY FOR LOSS OF REVENUE; AND (3) INDEMNITY FOR
CAPITAL LOSS.  THE TRAFFIC CONDITIONS ARE EXPRESSLY DEVISED TO PREVENT
PENN-CENTRAL FROM INCREASING ITS COMPETITION WITH THE PROTECTED ROADS. 
IN BRIEF, THEY RESTRAIN PENN-CENTRAL FROM TAKING ANY ACTION OR ENGAGING
IN ANY PRACTICE "WHICH WOULD DIVERT OR TEND TO DIVERT TRAFFIC  ...  ,"
EITHER DIRECTLY OR INDIRECTLY, FROM THE PROTECTED ROADS.  327 I.C.C.,
AT 561.  WHILE THE ICC'S AUTHORITY TO IMPOSE THIS RESTRICTION IS
UNQUESTIONED, GREAT CONTROVERSY EXISTS CONCERNING ITS INTENDED SCOPE. 
THE THREE ROADS, RELYING UPON THE ICC'S EXPRESSED INTENTION TO PREVENT
"ANY" LOSS OF REVENUE "AS A DIRECT RESULT" OF CONSUMMATION, 327 I.C.C.,
AT 532, CLAIM THAT PENN-CENTRAL MAY TAKE NO STEP TO IMPROVE SERVICE ON
ROUTES IN WHICH THEY PARTICIPATE, EVEN IF THE IMPROVEMENT IS DESIGNED,
FOR EXAMPLE, TO MEET TRUCK COMPETITION.  THEY ALSO CLAIM THAT THE
CONDITIONS SHOULD BE APPLIED RETROACTIVELY TO APRIL 27, 1966, WHEN THE
ICC RELEASED ITS ORIGINAL DECISION, IN ORDER TO ELIMINATE THE
POSSIBILITY THAT PENN AND CENTRAL COULD DEFEAT THE PURPOSE OF THE
CONDITIONS BY CONTINUING COMPETITIVE PRACTICES BEGUN BETWEEN APRIL 27
AND COMSUMMATION OR BY INSTITUTING CHANGES DURING THE INTERVENING
PERIOD.  PENN AND CENTRAL, ON THE OTHER HAND, TAKE A FAR MORE LIMITED
VIEW OF THE CONDITIONS' SCOPE, DESPITE THEIR ASSURANCES BEFORE THE
DISTRICT COURT THAT THE CONDITIONS PREVENT EVEN SOLICITATION OF
SHIPPERS.  (FN17)  THEIR POSITION AT THE REOPENED PROCEEDING, BASED
UPON THE COMMISSION'S REFERENCE TO MAINTAINING THE PRECONSUMMATION
"STATUS QUO," 327 I.C.C., AT 532, IS THAT THEY SHOULD BE FREE TO OFFER
ANY AMOUNT OR QUALITY OF SERVICE AFTER MERGER WHICH THEY COULD PERFORM
INDIVIDUALLY OR JOINTLY BEFORE MERGER.  THIS INTERPRETATION APPARENTLY
WOULD LEAVE PENN-CENTRAL FREE, FOR EXAMPLE, TO REDUCE RATES ON ANY
ROUTE WHICH WAS FORMERLY ALL-CENTRAL OR ALL-PENN, OR ON ANY PRESENTLY
EXISTING JOINT ROUTE OF PENN AND CENTRAL, OR TO POOL THEIR CARS FOR
BETTER FLEXIBILITY, EVEN THOUGH THESE ACTIONS MIGHT RESULT IN DIVERSION
OF TRAFFIC FROM A PROTECTED LINE.  SEE GENERALLY BRIEF FOR THE UNITED
STATES ON APPENDIX G CONDITIONS, F.D. NOS. 21989 AND 21990, JAN. 16,
1967, PP. 8-12.  WHETHER THE TRAFFIC CONDITIONS WILL SUCCEED IN
PREVENTING THE DETERIORATION OF THE THREE ROADS TO THE POINT AT WHICH
EQUITABLE TERMS MAY BE UNATTAINABLE IS A QUESTION OF SOME DIFFICULTY. 
TRAFFIC CONDITIONS ARE LIMITED IN THEIR USEFULNESS BECAUSE THEY CANNOT
ELIMINATE ENTIRELY THE MORE GENERAL BENEFITS OFTEN OBTAINABLE THROUGH
CONSOLIDATION (SUCH AS UNIFIED MANAGEMENT, BETTER SCHEDULES, SIMPLIFIED
TRACING OF CARS, LESS SWITCHING AND INSPECTION OF CARS, AND GREATER
ADVERTISING RESOURCES), AND BECAUSE THEY CANNOT BE OPERATIVE UPON THE
SHIPPER.  SINCE THE ICC DEEMED THE TRAFFIC CONDITIONS IMPOSED ESSENTIAL
TO PROTECT THE ROADS, AND SINCE EVEN THE MOST RIGID TRAFFIC CONDITIONS
ARE OF LIMITED VALUE, THE QUESTION WHETHER THE VIEW OF THE THREE ROADS
OR THAT OF PENN AND CENTRAL SHOULD BE ADOPTED IS AS IMPORTANT AS IT IS
DIFFICULT, AND ITS UNSETTLED STATE CONTRIBUTES TO THE DOUBT AS TO
INCLUSION. 

THE INDEMNITY FOR LOSS OF REVENUE, NOW BEING RECONSIDERED BY THE ICC,
IS TO BE PAYABLE TO ANY OF THE THREE THREATENED LINES IN THE EVENT THAT
IT FAILS TO REALIZE, DURING THE INDEMNITY PERIOD, GROSS REVENUES IN THE
SAME PROPORTION TO THE COMBINED GROSS REVENUES OF PENN-CENTRAL AND THE
PROTECTED LINE AS THE INDEMNITY FORMULA FIXES FOR THE PROTECTED LINE IN
THE BASE PERIOD.  THE INDEMNITY IS OBVIOUSLY DESIGNED TO MAKE UP FOR
LOSSES OF TRAFFIC TO PENN-CENTRAL DESPITE THE TRAFFIC CONDITIONS.  THE
THREE ROADS HAVE ARGUED THAT THE INDEMNITY SHOULD BE MODIFIED TO
INCREASE PAYMENTS, BUT TAKE THE POSITION THAT, EVEN AS MODIFIED, THE
CONDITIONS WOULD BE INADEQUATE.  THE NONPROTECTED ROADS CLAIM THE
INDEMNITY CONDITION IS UNLAWFUL.  QUITE CLEARLY, THE INDEMNITY WOULD
PROVIDE A FINANCIAL INTEREST TO THE PROTECTED LINES TO DIVERT TO PENN
CENTRAL TRAFFIC THEY WOULD NORMALLY HANDLE IN CONNECTION WITH OTHER
CARRIERS, SUCH AS N&W AND C&O, IN ORDER TO INCREASE PENN-CENTRAL'S
PROPORTION OF THEIR COMBINED REVENUES AND THEREBY TO INCREASE THEIR OWN
INDEMNITIES.  CORRESPONDINGLY IT WOULD PROVIDE AN INTEREST TO PENN
CENTRAL TO DIVERT THEREBY TO REDUCE OR AVOID INDEMNITY PAYMENTS. 

WHETHER THIS COMMUNITY OF INTEREST IS UNLAWFUL OR WOULD OTHERWISE BE
AGAINST THE PUBLIC INTEREST HAS NOT DEFINITIVELY BEEN SETTLED, SINCE
THE ICC IS STILL IN THE PROCESS OF RECONSIDERING ITS POSITION.  IT IS
RELEVANT HERE, HOWEVER, SIMPLY TO NOTE THAT THE INDEMNITY, VIEWED BY
THE ICC AS ESSENTIAL TO INTERIM PROTECTION, IS MEANINGFULLY CHALLENGED
BOTH AS UNLAWFUL AND AS INADEQUATE, AND THEREFORE THAT IT TOO CANNOT BE
RELIED UPON TO ELIMINATE THE DOUBT CONCERNING WHETHER THE PROTECTED
ROADS MAY BE DAMAGED DURING THE INTERIM TO AN EXTENT THAT WOULD MAKE
EQUITABLE TERMS UNATTAINABLE. 

THE INDEMNITY FOR CAPITAL LOSS IS ADVANCED BY THE THREE ROADS AS
ESSENTIAL IF THE MERGER IS TO BE CONSUMMATED PRIOR TO INCLUSION.  IT IS
DIRECTLY RELATED TO THE PROBLEM OF ASSURING THAT EQUITABLE TERMS FOR
INCLUSION IN N&W CAN LATER BE REACHED.  COMMISSIONER WEBB'S DEFINITION
MAKES CLEAR THE PROPOSED CONDITION'S PURPOSE: 

"THE TERM 'CAPITAL LOSS,' AS USED BY N&W, E-L, D&H AND B&M IN THEIR
PETITIONS FOR RECONSIDERATION IN THE PENN-CENTRAL CASE, REFERS TO
LOSSES OF E-L, D&H, AND B&M TRAFFIC TO PENN-CENTRAL TO THE EXTENT NOT
OFFSET BY TRAFFIC GAINS ATTRIBUTABLE TO THEIR INCLUSION IN THE N&W
SYSTEM, WITH THE NET ANNUAL LOSS OF INCOME, IF ANY, CAPITALIZED AT AN
APPROPRIATE RATE."  N&W INCLUSION REPORT, AT 25, N. 21. 

IN EFFECT, THIS CONDITION WOULD GUARANTEE THE THREE ROADS THE
DIFFERENCE BETWEEN WHAT THEY WOULD LOSE TO PENN-CENTRAL AND WHAT THEY
WOULD GAIN BY INCLUSION IN N&W.  UNQUESTIONABLY, ITS ADOPTION WOULD
FACILITATE INCLUSION, BUT THE FACT IS THAT IT HAS NOT BEEN ADOPTED, AND
ITS ADOPTION IN ANY FORM WOULD BE SUBJECT TO JUDICIAL REVIEW AT THE
REQUEST OF PENN AND CENTRAL.  MOREOVER, THE USEFULNESS OF THE CAPITAL
INDEMNITY APPROACH HAS BEEN VIGOROUSLY CHALLENGED BY C&O AND N&W.  THEY
ASSERT THAT THE INDEMNITY WILL NOT SUCCEED IN KEEPING THE THREE ROADS
IN VIABLE CONDITION, SINCE TRAFFIC, ONCE DIVERTED, IS LIKELY TO STAY
DIVERTED.  THE ICC SHOULD NOT, THEY CLAIM, RELY UPON AN INDEMNITY
PROVISION WHICH FAILS TO ACCOMPLISH THE CONTINUATION OF SERVICE IT HAS
FOUND TO BE SO ESSENTIAL.  C&O-B&O BRIEF ON CAPITAL LOSS
INDEMNIFICATION, F.D. NO. 21989, NOVEMBER 28, 1966.  IN THIS CONNECTION
THEY RAISE ONCE AGAIN THE SPECTER OF AN N&W-C&O MERGER, ARGUING THAT
THEIR PROPOSAL IS THE ONLY ACCEPTABLE SOLUTION TO THE INCLUSION
PROBLEM. 

THERE APPEARS TO BE SOME MERIT IN THE ARGUMENTS THAT SOME SORT OF
CAPITAL INDEMNITY IS NECESSARY TO ASSURE THE ATTAINABILITY OF EQUITABLE
TERMS FOR INCLUSION.  WHILE COMMISSIONER WEBB LEFT TO THE ICC IN THE
PENN-CENTRAL CASE THE ISSUE WHETHER CAPITAL LOSS INDEMNIFICATION SHOULD
BE PAID, HE DID CONCLUDE THAT INCLUSION OF THE THREE ROADS "IN THE
SYSTEM CHOSEN BY THE COMMISSION IN THE FURTHERANCE OF NATIONAL
TRANSPORTATION OBJECTIVES SHOULD NOT BE ON TERMS WHICH REFLECT ANY
DIMINUTION OF CAPITAL VALUE ATTRIBUTABLE TO THE TRAFFIC DIVERSION
IMPACT OF THE OTHER SYSTEM.  IN OTHER WORDS, THE PETITIONERS SHOULD NOT
BE PENALIZED FOR ANTICIPATING THE COMMISSION'S DESIRE TO PRESERVE RAIL
COMPETITION IN THE TERRITORY THEY SERVE."  N&W INCLUSION REPORT, AT
28.  HIS VALUATION OF THE SMALLER ROADS, THEREFORE, DID NOT REFLECT THE
DIMINUTION OF VALUE ANTICIPATED TO BE CAUSED BY PENN-CENTRAL, AND HIS
APPARENT CONVICTION WAS THAT EQUITABLE TERMS COULD NOT BE WORKED OUT ON
ANY OTHER BASIS, UNLESS A CAPITAL INDEMNITY WERE GRANTED.  SEE, ID., AT
43.  (FN18)  IN LIGHT OF THESE CONCLUSIONS IT CAN READILY BE SEEN THAT
THE UNRESOLVED ISSUE OF CAPITAL INDEMNITY IS IMPORTANT, AND THEREFORE
THAT THE OBJECTIONS TO IT CREATE UNCERTAINTY ON THIS SCORE AS WELL AS
OVER WHETHER EQUITABLE TERMS ARE POSSIBLE. 

WHAT THE ICC HAS DONE HERE BY DEFERRING INCLUSION OF THE THREE ROADS
IS TO DEFER CONFRONTING NUMEROUS DIFFICULT AND IMPORTANT ISSUES WHICH
CAST SUBSTANTIAL DOUBT UPON WHETHER THE ROADS CAN BE INCLUDED IN ANY
MAJOR SYSTEM CONTEMPLATED FOR THE PURPOSE CONSISTENT WITH THE PUBLIC
INTEREST AND ON EQUITABLE TERMS.  IN THE PROCESS IT HAS APPROVED AN
IRREVERSIBLE CONSOLIDATION WHICH IT FOUND TO BE IN THE PUBLIC INTEREST
ONLY UPON THE PREMISE THAT THE AFFECTED ROADS WOULD BE INCLUDED IN A
MAJOR SYSTEM.  BY PROCEEDING IN THIS MANNER, THE ICC HAS IN MY VIEW
FAILED TO FULFILL ITS FUNDAMENTAL DUTY TO DETERMINE WHETHER
CONSOLIDATIONS ARE IN THE PUBLIC INTEREST ON THE BASIS OF ALL THE
RELEVANT FACTS.  THE PROBLEMS CREATED BY A REQUIRED INCLUSION OBVIOUSLY
ARE RELEVANT TO THE QUESTION WHETHER THE PROPOSAL WHICH MAKES THEIR
INCLUSION NECESSARY IS IN THE PUBLIC INTEREST.  AND WHERE, AS HERE, THE
MANY PROBLEMS CREATED ARE SERIOUS AND FAR-REACHING, THE COMMISSION MUST
CONSIDER THEM BEFORE ARRIVING AT AND IMPLEMENTING WITH FINALITY ITS
ULTIMATE CONCLUSION. 

WHILE I CONSIDER IT THE ICC'S RESPONSIBILITY TO WEIGH THE FEASIBILITY
AND EFFECTS OF AN INCLUSION IT DEEMS REQUIRED BY THE PUBLIC INTEREST, I
RECOGNIZE THE IMPORTANCE OF LEAVING GREAT FLEXIBILITY WITH THE AGENCY
TO DEAL WITH EMERGENCY SITUATIONS IN ORDER TO AVOID SERIOUS DAMAGE TO
THE NATIONAL TRANSPORTATION SYSTEM.  BUT IT IS CLEAR THERE IS NO
PRESSING NEED HERE WHICH COULD JUSTIFY THE ICC'S ACTION.  COMMISSION
COUNSEL REPRESENT IN THIS COURT THAT THE ICC HAS FOUND "THAT THE MERGER
WOULD RESULT IN SUBSTANTIALLY IMPROVED SERVICE FOR THE SHIPPING PUBLIC
AND IN ANNUAL SAVINGS OF AT LEAST $80 MILLION FOR THE MERGED COMPANY
...  ."  BRIEF OF THE I.C.C., P. 52.  IMPROVED SERVICE AND ECONOMIES
ARE COMMONLY THE CLAIMED RESULTS OF RAIL CONSOLIDATIONS, AND
PROPORTIONATELY THE IMPROVEMENTS AND SAVINGS ANTICIPATED IN THIS CASE
ARE NO MORE SUBSTANTIAL THAN IN MANY OTHER MERGERS.  MOREOVER, THE
ANTICIPATED $80,000,000 ANNUAL SAVING IS TO BE REACHED ABOUT EIGHT
YEARS AFTER CONSUMMATION, 327 I.C.C., AT 501, AND EVEN THIS ESTIMATE
DOES NOT TAKE INTO ACCOUNT THE SHARP CURTAILMENT THAT WOULD RESULT FROM
THE INTERIM PROTECTIVE CONDITIONS WHICH WERE FORMULATED WITH THE AVOWED
INTENTION OF MAINTAINING THE PRECONSUMMATION STATUS QUO, SEE 327
I.C.C., AT 532.  (FN19)  THE ICC STRESSED THE FINANCIAL CONDITION OF
PENN AND CENTRAL, INCLUDING THEIR "PERSISTENTLY LOW RATES OF RETURN"
AND THEIR NEED FOR IMPROVED EQUIPMENT, AS A GROUND FOR AUTHORIZING
IMMEDIATE CONSUMMATION, 327 I.C.C., AT 501-502, BUT ONCE AGAIN, THIS IS
A STOCK REASON FOR MERGER, USUALLY ALLEGED BY AT LEAST ONE PARTY.  THE
FACT THAT A MERGER WILL PROVIDE FINANCIAL ASSISTANCE MILITATES IN FAVOR
OF APPROVAL, BUT IT IS ONLY ONE OF THE MANY IMPORTANT FACTORS WHICH
MUST BE CONSIDERED, AND IN THE CASE OF PENN AND CENTRAL THIS POINT HAS
LOST MUCH OF ITS FORCE, SINCE BOTH HAVE HAD SUBSTANTIAL AND CONSISTENT
INCREASES IN THEIR EARNINGS IN RECENT YEARS.  SEE BRIEF OF THE I.C.C.,
P. 55.  WHILE THIS DOES NOT NECESSARILY LESSEN THE LONG-TERM NEED FOR
CONSOLIDATION, IT DOES SHOW THERE IS LITTLE NEED FOR IMMEDIATE
CONSUMMATION ON THIS GROUND. 

THE ARGUMENT THAT THE SURVIVAL OF THE NEW HAVEN DEPENDS UPON
UNDELAYED CONSUMMATION IS NOT PRESSED HERE WITH THE SAME INTENSITY WITH
WHICH IT WAS EMBRACED AT THE AGENCY LEVEL.  SEE 328 I.C.C., AT 312. 
JUDGE FRIENDLY'S OPINION PUT THIS MATTER IN PROPER PERSPECTIVE BY
POINTING OUT THAT IT IS "UNREALISTIC TO SUPPOSE THAT INCLUSION OF NH IN
THE TRANSPORTATION COMPANY CAN BE ACCOMPLISHED BEFORE CONCLUSION OF THE
COMMISSION'S RECONSIDERATION IN THIS CASE  ...  ."  259 F. SUPP., AT
973.  THE TENABLE ARGUMENT HERE IS THAT, THE LONGER CONSUMMATION IS
DELAYED, THE MORE DIFFICULT WILL BECOME THE TASK OF NH'S TRUSTEES IN
REORGANIZING THE COMPANY, AND THE MORE POSSIBLE IT BECOMES DUE TO SOME
UNANTICIPATED CHANGE OF CIRCUMSTANCE THAT THE MERGER MAY FALL THROUGH
ENTIRELY.  WHILE EVERY EFFORT CONSISTENT WITH THE PUBLIC INTEREST
SHOULD BE MADE TO PROTECT THE INVALUABLE SERVICES THE NH PERFORMS, THE
DIFFICULTIES ANTICIPATED ARE LARGELY SPECULATIVE.  IF THIS MERGER IS TO
BENEFIT ITS PROPONENTS AS GREATLY AS THEY CONTEND, IT IS NO FRAGILE
PACKAGE.  AND ALTHOUGH NO UNNECESSARY RISKS SHOULD BE TAKEN EVEN WITH A
PLAN SO ENTHUSIASTICALLY SUPPORTED AND ELABORATELY DESIGNED, A PROPER
CONCERN FOR THE PUBLIC INTEREST AND FOR THE PROTECTION OF THE ROADS
THREATENED BY THIS MERGER SHOULD HAVE LED THE ICC TO DELAY
CONSUMMATION. 

THE PROJECTED EFFECTS OF PENN-CENTRAL ON E-L, D&H AND B&M ARE
ANYTHING BUT SPECULATIVE.  THOSE ROADS UNQUESTIONABLY WILL BE DESTROYED
UNLESS INCLUDED IN A MAJOR SYSTEM, AND THE FACT THAT INCLUSION
SOMEWHERE IS IMPLICITLY ASSURED US MAY BE FURTHER CAUSE FOR CONCERN, IN
LIGHT OF THE CONTEMPLATED ALTERNATIVES AND OF THE DIFFICULTY AND
CONSEQUENCES INVOLVED IN THE ADOPTION OF EITHER OF THEM.  IF THE ICC
SHOULD EVER BE ALLOWED TO DEPART FROM ITS STATUTORY DUTY TO CONSIDER
ALL THE RELEVANT FACTORS BEFORE DETERMINING THE PUBLIC INTEREST, IT
CERTAINLY SHOULD NOT BE UPON THE MERE RECITATION OF FACTORS FAVORABLE
TO THE PLAN'S ADOPTION AND OF SPECULATIVE DANGERS AND THE
INCONVENIENCES OF PRIVATE PARTIES.  THE REASON CONGRESS HAS ORDERED
THAT ALL FACTORS, INCLUDING THE EFFECTS OF INCLUSION OR FAILURE TO
INCLUDE, BE CONSIDERED, IS TO AVOID DANGER TO THE PUBLIC INTEREST
CAUSED BY PRECIPITATE ACTION, AND THERE IS MORE THAN AMPLE EVIDENCE OF
DANGER TO THE PUBLIC INTEREST IN THIS CASE TO WARRANT UNHESITATING
ENFORCEMENT OF CONGRESS' DIRECTIVE. 

                                       III. 

THE ICC ARGUES THAT TO DELAY THE MERGER UNTIL THE THREE ROADS ARE
ASSURED INCLUSION WOULD AMOUNT TO A CONSOLIDATION OF THE PROCEEDINGS IN
PENN-CENTRAL WITH THE N&W INCLUSION PROCEEDING, AT LEAST FOR DECISIONAL
PURPOSES, AND THAT THIS WOULD CONSTITUTE A RETURN TO THE "MASTER PLAN"
APPROACH FOR RAILROAD UNIFICATION "UNSUCCESSFULLY TRIED UNDER THE
TRANSPORTATION ACT OF 1920, AND WOULD PROBABLY PRECLUDE THE
CONSUMMATION OF ANY MAJOR RAIL UNIFICATION, REGARDLESS OF ITS MERITS." 
BRIEF OF THE ICC, PP. 43-44.  THE COMMISSION POINTS OUT THAT IT
"CONSISTENTLY HAS REFUSED TO CONSOLIDATE THE EASTERN RAILROAD MERGER OR
CONTROL PROCEEDINGS," ID., AT 48, AND THAT THE GOVERNMENT'S POSITION
HERE IS THE SAME AS ITS UNSUCCESSFUL CONTENTIONS FOR CONSOLIDATION IN
THE C&O-B&O AND N&W-NICKEL PLATE PROCEEDINGS. 

IT IS DIFFICULT TO UNDERSTAND EXACTLY WHAT THE ICC IS ARGUING. 
CERTAINLY NO ONE CONTENDS THAT THE COMMISSION IS REQUIRED, AS IT WAS BY
THE ACT OF 1920, TO "PREPARE AND ADOPT A PLAN FOR THE CONSOLIDATION OF
THE RAILWAY PROPERTIES OF THE CONTINENTAL UNITED STATES INTO A LIMITED
NUMBER OF SYSTEMS."  41 STAT. 481.  NOR IS IT ARGUED THAT THE ICC IS
REQUIRED TO DRAW UP REGIONAL PLANS FOR CONSOLIDATION. 

ON THE OTHER HAND, IT CAN HARDLY BE SAID THAT THE ICC IS POWERLESS TO
CONSOLIDATE PROCEEDINGS, OR FOR THAT MATTER TO PLAN OR TO TAKE ANY
OTHER REASONABLE STEP TO ENABLE ITSELF TO PERFORM ITS STATUTORY
OBLIGATION AS CUSTODIAN FOR THE DEVELOPMENT IN THE PUBLIC INTEREST OF A
NATIONAL TRANSPORTATION SYSTEM; THAT THE ICC IS NO LONGER TOLD TO PLAN
DOES NOT MEAN IT IS UNABLE TO DO SO WHEN PLANNING IS NECESSARY TO
FULFILL ITS DUTIES.  THE ICC IS TOLD IN THE 1940 ACT TO "CONDUCT ITS
PROCEEDINGS UNDER ANY PROVISION OF LAW IN SUCH MANNER AS WILL BEST
CONDUCE TO THE PROPER DISPATCH OF BUSINESS AND TO THE ENDS OF JUSTICE,"
49 U.S.C. SEC 17(3), AND IT HAS IN FACT RECOGNIZED THAT IT POSSESSES
"THE POWER IN APPROPRIATE CIRCUMSTANCES EITHER TO CONSOLIDATE
PROCEEDINGS IN WHICH THE ISSUES ARE SIMILAR OR CLOSELY RELATED, OR TO
POSTPONE A PARTICULAR DECISION WHEN SO REQUIRED BY THE PUBLIC
INTEREST."  C&O - CONTROL, SUPRA, 317 I.C.C., AT 266.  BUT APART FROM
THIS EXPLICIT POWER, IT IS CLEAR FROM A CLOSE APPRAISAL OF THE 1920 AND
1940 ACTS THAT THE ICC'S RESPONSIBILITIES ARE FAR BROADER NOW AND,
THEREFORE, THAT IT WOULD BE ANOMALOUS TO FIND IN A COMPARISON OF THESE
TWO PIECES OF LEGISLATION A BASIS FOR THE SWEEPING CONTENTION THAT THE
COMMISSION CAN NO LONGER PLAN. 

THE 1920 AND 1940 ACTS ARE SIMILAR IN SEVERAL RESPECTS.  UNDER BOTH,
APPLICATIONS FOR CONSOLIDATION ARE INITIATED BY THE PARTIES AND
APPROVED IF FOUND TO BE IN THE PUBLIC INTEREST, AND UNDER NEITHER MAY A
CONSOLIDATION BE COMPELLED.  THE SALIENT DIFFERENCE IS THAT UNDER THE
1920 ACT THE ICC WAS REQUIRED TO DRAW UP A PLAN FOR ALL THE NATION'S
RAILROAD PROPERTIES, AND WAS CALLED UPON TO JUDGE THE PROPOSALS FOR
RAILROAD CONSOLIDATION FILED WITH IT BY PRIVATE PARTIES IN TERMS OF THE
MASTER PLAN IT HAD CREATED.  PROPOSALS THAT ADVANCED THE PLAN'S
FULFILLMENT STOOD A FAR GREATER CHANCE OF APPROVAL THAN THOSE THAT DID
NOT, AND ONLY IN THIS SENSE COULD IT BE SAID THAT PARTIES WERE UNABLE
TO INITIATE PLANS OF THEIR OWN CHOICE.  WHILE THE PLANNING FUNCTION IS
BROAD PROCEDURALLY, HOWEVER, IT WAS DESIGNED TO SERVE ONLY LIMITED
ENDS.  CONGRESS' CONCERN WAS "LARGELY WITH FINANCIAL PROBLEMS," ITS
CHIEF AIM BEING TO OVERCOME THE PROBLEM WHICH AROSE FROM THE FACT THAT
"RATES WHICH WOULD PROVIDE REASONABLE RETURNS FOR STRONG SYSTEMS WOULD
NOT PERMIT WEAK LINES TO SURVIVE, AND IF RATES WERE RAISED TO TAKE CARE
OF THE WEAK ROADS, THE MORE PROSPEROUS ROADS WOULD ENJOY EXCESSIVE
RETURNS."  LEONARD, RAILROAD CONSOLIDATION UNDER THE TRANSPORTATION ACT
OF 1920, AT 57, 59 (1946).  THE DECISION TO ENCOURAGE CONSOLIDATION
INTO A LIMITED NUMBER OF SYSTEMS WAS OF COURSE DESIGNED TO ESTABLISH A
STRONGER RAILROAD INDUSTRY, BUT IT "WAS NOT GROUNDED ON THE PREMISE
THAT ECONOMIES FROM OPERATION AND THE AVOIDANCE OF COMPETITIVE WASTES
WOULD BE THE PRINCIPAL MEANS OF INSURING AN EFFICIENT AND ECONOMIC
RAILWAY SYSTEM  ...  , BUT, RATHER, ON THE CONCLUSION THAT THE
FINANCIAL PROSPERITY OF RAIL CARRIERS WOULD BE PROMOTED AND EFFECTUATED
IF THE WEAK AND THE STRONG RAILROADS WHICH EXIST SIDE BY SIDE IN THE
SAME TERRITORY WERE TO BE CONSOLIDATED INTO BALANCED RAILROAD SYSTEMS
WITH RESPECT TO EARNING POWER."  S. REP. NO. 445, REPORT ON THE
NATIONAL TRANSPORTATION POLICY BY THE SPECIAL STUDY GROUP OF THE
COMMITTEE ON COMMERCE, 87TH CONG., 1ST SESS., P. 234 (1961).  IN FACT,
THE ACT SPECIFICALLY DIRECTED THE ICC, IN DRAWING UP THE PLAN, TO
PRESERVE COMPETITION AS FULLY AS POSSIBLE AND TO MAINTAIN EXISTING
ROUTES AND CHANNELS OF TRADE WHEREVER PRACTICABLE.  IN OTHER WORDS,
ALTHOUGH THE ICC WAS DIRECTED TO DRAW UP A NATIONAL PLAN AGAINST WHICH
IT WAS TO JUDGE WHETHER APPLICATIONS FOR CONSOLIDATION WERE IN THE
PUBLIC INTEREST, THE JUDGMENT WAS TO BE MADE RATHER MECHANICALLY, AND
THE PLAN ITSELF WAS TO BE DESIGNED TO ACHIEVE LIMITED, PRIMARILY
FINANCIAL GOALS. 

IN CONTRAST, AS WE HAVE SEEN, THE PURPOSES SOUGHT THROUGH
CONSOLIDATION UNDER THE 1940 ACT ARE WIDE-RANGING, AND THE PUBLIC
INTEREST INCLUDES CONSIDERATION OF ALL FACTORS RELATING TO THE NATIONAL
TRANSPORTATION POLICY.  FINANCIAL MANIPULATION WAS DEEMED INADEQUATE,
AND THE ICC WAS ORDERED TO WEIGH NUMEROUS, OFTEN CONFLICTING,
CONSIDERATIONS.  IN LIGHT OF THIS "ENLARGING OF THE FACTORS OR VALUES
WHICH AN AGENCY MUST TAKE INTO CONSIDERATION," REICH, THE LAW OF THE
PLANNED SOCIETY, 75 YALE L.J. 1227, 1248 (1966), IT SEEMS INCONGRUOUS
TO ASSERT THAT THE CHANGE FROM THE 1920 ACT APPROACH TO THAT OF THE
1940 ACT SIGNIFIES A CHANGE FROM PLANNING TO STRICTLY AD HOC
ADJUDICATION. 

IT SHOULD BE CLEAR, IN FACT, FROM A FULL CONSIDERATION OF THE ICC'S
POWERS, AND OF THE CONSEQUENCES OF FAILING TO USE THOSE POWERS, THAT
CONSOLIDATION AND THE USE OF OTHER PROCEDURAL TECHNIQUES IS NOT ONLY
WITHIN THE AGENCY'S AUTHORITY, BUT IS OFTEN ESSENTIAL IF IT IS TO
FULFILL ITS FUNCTION AS GUARDIAN OF THE PUBLIC INTEREST.  SECTION
17(3), REFERRED TO ABOVE, APPEARS SUFFICIENT TO AUTHORIZE THE
COMMISSION TO ADOPT PROCEDURES CALCULATED TO DEVELOP COMPLETE RECORDS
WITH RESPECT TO THE PUBLIC INTEREST IN PARTICULAR MERGER PROCEEDINGS,
AND TO COORDINATE SEPARATE MERGER PROCEEDINGS WHEN NECESSARY TO SECURE
THE BEST POSSIBLE RESULTS.  TUCKER & O'BRIEN, THE PUBLIC INTEREST IN
RAILROAD MERGERS, 42 B.U.L. REV. 160, 184 (1962).  WITHIN THE CONTEXT
OF A CASE-BY-CASE APPROACH, THE COMMISSION IS AUTHORIZED UNDER SEC
16(11) TO "EMPLOY SUCH ATTORNEYS AS IT FINDS NECESSARY  ...  FOR PROPER
REPRESENTATION OF THE PUBLIC INTERESTS IN INVESTIGATIONS MADE BY IT OR
CASES OR PROCEEDINGS PENDING BEFORE IT, WHETHER AT THE COMMISSION'S OWN
INSTANCE OR UPON COMPLAINT ...  ," AND IT HAS DONE SO.  (FN20)  IT MAY
AND OFTEN HAS CALLED UPON ITS STAFF TO DEVELOP INFORMATION IN PENDING
CASES.  IN THE N&W-NICKEL PLATE PROCEEDING, FOR EXAMPLE, IT CALLED UPON
ITS BUREAU OF INQUIRY AND COMPLIANCE TO STUDY AND REPORT ON WHICH
RAILROADS WOULD BE AFFECTED BY THE MERGER.  IT POSSESSES, WITH
APPROPRIATE SAFEGUARDS, BROAD POWERS OF OFFICIAL NOTICE,  (FN21)  AND
IN RECENT MERGER CASES IT HAS FREQUENTLY REFERRED TO FACTS AND
ARGUMENTS IN OTHER, RELATED MERGER CASES.  MOREOVER, LIKE MOST OTHER
AGENCIES ASSIGNED SIMILAR FUNCTIONS, IT HAS BROAD INVESTIGATIVE POWER,
WHICH MAY BE USED IN THE CONTEXT OF ADJUDICATION OR SIMPLY TO PROVIDE
BACKGROUND.  SECTION 13(2) CONFERS "FULL AUTHORITY AND POWER AT ANY
TIME TO INSTITUTE AN INQUIRY, ON ITS OWN MOTION, IN ANY CASE AND AS TO
ANY MATTER OR THING  ...  CONCERNING WHICH ANY QUESTION MAY ARISE UNDER
ANY OF THE PROVISIONS OF THIS CHAPTER, OR RELATING TO THE ENFORCEMENT
OF ANY OF THE PROVISIONS OF THIS CHAPTER," WHICH INCLUDES SEC 5.  THE
ICC HAS RESORTED TO VARIOUS FORMS OF INVESTIGATIONS AND STUDIES TO
ENABLE ITSELF TO PERFORM ITS OBLIGATIONS.  SEE GENERALLY S. DOC. NO.
10, MONOGRAPH OF THE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE
PROCEDURE, PART 11: INTERSTATE COMMERCE COMMISSION, 77TH CONG., 1ST
SESS., PP. 93-96 (1941).  PARTICULARLY NOTEWORTHY IS THE STAFF STUDY ON
RAILROAD CONSOLIDATIONS AND THE PUBLIC INTEREST, BY THE COMMISSION'S
BUREAU OF TRANSPORT ECONOMICS AND STATISTICS, WHICH CONTAINS AN
ANALYSIS OF THE COMMISSION'S DECISIONS IN RAILROAD CONSOLIDATION
CASES.  REPRINTED AS EXHIBIT 11, HEARINGS BEFORE THE SUBCOMMITTEE ON
ANTITRUST AND MONOPOLY ON S. 3097, 87TH CONG., 2D SESS., PT. 2 (1962). 

FINALLY, ALTHOUGH THE ICC DOES NOT PROMULGATE GENERAL PLANS FOR
CONSOLIDATION, IT HAS THE POWER UNDER SEC 5(2)(B) TO APPROVE
CONSOLIDATIONS "SUBJECT TO SUCH TERMS AND CONDITIONS AND SUCH
MODIFICATIONS AS IT SHALL FIND TO BE JUST AND REASONABLE  ...  ."  THIS
AUTHORITY ENCOMPASSES THE POWER UNDER SEC 5(2)(D) TO MAKE INCLUSION OF
A RAILROAD A PREREQUISITE TO APPROVAL OF A MERGER, AND IT DOES NOT
DEPEND UPON THE REQUEST OF ANY PRIVATE PARTY INVOLVED.  IT HAS BEEN
BROADLY CONSTRUED TO ENABLE THE ICC TO IMPLEMENT PREVIOUSLY FOUND
CONDITIONS AND TO COPE WITH CHANGED CIRCUMSTANCES, E.G., UNITED STATES
V. ROCK ISLAND MOTOR TRANSIT CO., 340 U.S. 419; AMERICAN TRUCKING
ASSNS.  V. UNITED STATES, 355 U.S. 141; AMERICAN TRUCKING ASSNS.  V.
FRISCO CO., 358 U.S. 133, AND THE COMMISSION HAS APPLIED THIS POWER,
WHEN IT HAS SEEN FIT TO DO SO, WITH GREAT LIBERALITY.  IT HAS EVEN GONE
TO THE POINT OF CONDITIONING ITS APPROVAL OF APPLICATIONS TO
CONSOLIDATE UPON ACTIONS TO BE TAKEN BY RAILROADS NOT EVEN PARTY TO THE
PROCEEDING.  (FN22)  IN SUM, THE COMMISSION'S PRACTICE CERTAINLY IS NOT
CONSISTENT WITH ITS ASSERTION HERE THAT ITS "ONLY 'PLANNING' POWER"
UNDER THE 1940 ACT IS TO INCLUDE RAILROADS IN THE REGION.  BRIEF OF THE
ICC, P. 46. 

THE ICC IS PRE-EMINENTLY AN AGENCY "DIRECTLY AND IMMEDIATELY
CONCERNED WITH THE OUTCOME OF VIRTUALLY ALL PROCEEDINGS CONDUCTED
BEFORE IT.  IT IS NOT INTENDED TO BE A PASSIVE ARBITER BUT THE
'GUARDIAN OF THE GENERAL PUBLIC INTEREST,' WITH A DUTY TO SEE THAT THIS
INTEREST IS AT ALL TIMES EFFECTIVELY PROTECTED."  H.R. DOC. NO. 678,
PRACTICES AND PROCEDURES OF GOVERNMENTAL CONTROL OF TRANSPORTATION,
78TH CONG., 2D SESS., P. 53 (1944); SEE SOUTHERN CLASS RATE
INVESTIGATION, 100 I.C.C. 513, 603.  IT IS EMPOWERED TO INVESTIGATE AND
GATHER EVIDENCE BEYOND THAT PRESENTED BY THE PARTIES WHERE EXERCISE OF
THAT POWER WILL ADVANCE THE DETERMINATION OF WHAT BEST SERVES THE
PUBLIC INTEREST.  (FN23)  TO THE SAME END, THE AGENCY HAS WIDE LATITUDE
IN FASHIONING PROCEDURES, AND A BROAD POWER TO CONDITION ITS APPROVAL
OF PROPOSALS.  IN OTHER WORDS, THE ICC IS NOT THE PRISONER OF THE
PARTIES' SUBMISSIONS.  (FN24)  RATHER, THE AGENCY'S DUTY IS TO WEIGH
ALTERNATIVES AND MAKE ITS CHOICE ACCORDING TO ITS JUDGMENT HOW BEST TO
ACHIEVE AND ADVANCE THE GOALS OF THE NATIONAL TRANSPORTATION POLICY. 
(FN25)    I AM THEREFORE NOT REASSURED BY THE ICC'S REPRESENTATION THAT
IT HAS "CONSISTENTLY" REFUSED TO CONSOLIDATE THE EASTERN RAILROAD
MERGER PROCEEDINGS FOR ANY PURPOSE OR TO ANY DEGREE.  THE ICC'S PRIOR
REFUSALS TO CONSOLIDATE ARE ENTIRELY DISTINGUISHABLE, SINCE NONE OF
THEM ENTAILED THE RISK UNDER THE COMMISSION'S OWN FINDINGS THAT A
RAILROAD PERFORMING ESSENTIAL PUBLIC SERVICE COULD BE DESTROYED. 
(FN26)  BUT MORE GENERALLY, WHILE CONSOLIDATED CONSIDERATION PROVIDES
NO SIMPLE ANSWER TO THE ICC'S PROBLEMS, SEE GENERALLY SHAPIRO, THE
CHOICE OF RULEMAKING OR ADJUDICATION IN THE DEVELOPMENT OF
ADMINISTRATIVE POLICY, 78 HARV. L. REV. 921 (1965), THE VERY COMPLEXITY
OF ITS TASK SUGGESTS THAT CONSOLIDATED CONSIDERATION MAY BE A USEFUL
PROCEDURAL DEVICE, SHORT OF AN INVESTIGATION OR PREARRANGED PLAN, FOR
OFFSETTING AT LEAST IN PART THE DISADVANTAGES INHERENT IN THE ISOLATED
CASE-BY-CASE APPROACH, BOTH IN FORMULATING AND APPLYING POLICY. 

ALTHOUGH A CASE-BY-CASE ADJUDICATION MAY OFFER ADVANTAGES IN
FLEXIBILITY AND CONTINUAL EXPOSURE TO CONCRETE SITUATIONS, "THE
DISADVANTAGES OF DEVELOPING POLICY THROUGH A SEQUENCE OF LIMITED CASES
ARE BOTH NUMEROUS AND IMPRESSIVE."  H.R. DOC. NO. 678, SUPRA, P. 81.  A
SIGNIFICANT DISADVANTAGE IS THAT INDIVIDUAL PROCEEDINGS "SELDOM IF EVER
PRODUCE SUFFICIENTLY COMPREHENSIVE RECORDS FOR THE ADEQUATE SOLUTION OF
QUESTIONS OF MAJOR IMPORTANCE."  ID., AT 82.  OBVIOUSLY, WITHOUT ALL
THE RELEVANT FACTS, THE CHANCE OF A SATISFACTORY DISPOSITION IS
DIMINISHED.  ALTHOUGH THE ICC HAS TOOLS TO ASSEMBLE COMPLETE FACTUAL
RECORDS, IT EMPLOYED VIRTUALLY NONE OF THEM IN THESE HIGHLY
INTERRELATED PROCEEDINGS,  (FN27)  INCLUDING THE POWER TO CONSOLIDATE
THE PROCEEDINGS ON COMMON ISSUES.  RATHER, THE CASES HAVE BEEN RIGIDLY
SEGREGATED, LEADING THE ICC TO RESORT TO EXTRAORDINARY INTERIM
CONDITIONS INSTEAD OF RESOLVING DEFINITIVELY THE FATE OF THE THREE
THREATENED ROADS.  THIS HAS HAD THE UNDESIRABLE EFFECT OF ENABLING EACH
OF THE MAJOR CARRIERS TO CONTROL THE BASIS FOR JUDGMENT BY DECIDING
WHAT EVIDENCE TO OFFER OR WITHHOLD, DEPENDING ON WHICH COURSE BEST
SERVED ITS OWN INTEREST.   EVIDENCE OF COMPETITIVE IMPACT HAS BEEN
WITHHELD IN ONE PROCEEDING ONLY TO APPEAR AT LATER PROCEEDINGS IN THE
FORM OF EVIDENCE THAT THE COMPANY AFFECTED MUST BE PERMITTED TO MERGE
WITH ANOTHER COMPANY TO PROTECT ITSELF, OR THAT THE ANTICOMPETITIVE
IMPACT OF THE LATER MERGER WILL BE LIMITED IN LIGHT OF THE INCREASED
STRENGTH AND ABILITY TO COMPETE OF THE COMPANIES ALREADY ALLOWED TO
MERGE.  (FN28)  THE CARRIERS HAVE BEEN WELL AWARE OF THE OPPORTUNITY
THE COMMISSION'S PRACTICE PROVIDES THEM, AS IS ILLUSTRATED BY THE
STATEMENT OF THE CHAIRMAN OF THE BOARD OF PENNSYLVANIA THAT "IF THE
C.&O.-B.&O. IS APPROVED, THAT IS GOING TO HELP THE NICKEL-PLATE CASE
AND IF THAT IS APPROVED, IT IS GOING TO HELP OUR CASE, GOING TO GO
RIGHT AROUND THE CIRCLE."  HEARINGS, SUPRA, N. 24, AT 397. 

IT IS NOT THAT THE ICC HAS BEEN UNAWARE OF WHAT HAS BEEN GOING ON.
COMMISSIONER TUCKER, IN THE FIRST OF THE RECENT TRILOGY, POINTED OUT
THAT THE "FAILURE OF THE LARGE EASTERN RAILROADS TO PRESENT EVIDENCE
AGAINST CONSOLIDATION IS  ...  A NATURAL CONSEQUENCE OF THEIR OWN SELF
INTEREST WHICH DICTATES A RECIPROCITY OF SILENCE."  C&O - CONTROL,
SUPRA, 317 I.C.C., AT 326.  THE FACT IS THAT, DESPITE SOME LIP-SERVICE
TO THE CONTRARY,  (FN29)  THE COMMISSION HAS PROCEEDED UNDER THE
ASSUMPTION THAT COMPETITIVE IMPACT IS TO BE EVALUATED WITH THE POSITION
OF THE RAILROADS AFFECTED VERY MUCH IN MIND.  THUS THE EXAMINERS IN
THIS CASE, WHEN CALLED UPON BY THE JUSTICE DEPARTMENT TO WEIGH THE
POSSIBLY SERIOUS ADVERSE EFFECT OF PENN-CENTRAL UPON N&W, C&O-B&O AND
OTHERS, POINTED OUT THAT THE ROADS ALLEGEDLY AFFECTED HAD INTRODUCED NO
EVIDENCE OF ADVERSE EFFECT.  THEY ADDED, REALISTICALLY AND
REVEALINGLY: 

"WE ARE FULLY COGNIZANT OF THE FACT THAT IN THE EVOLVING MERGER
PICTURE IN THE NORTHEAST SECTION OF THE NATION, THE CARRIERS INVOLVED
MAY WELL HAVE REFRAINED FROM PARTICIPATION IN THESE PROCEEDINGS OR
INFLUENCED THEIR SUBSIDIARIES NOT TO PARTICIPATE ON THE GROUNDS THAT
THEY DID NOT DESIRE TO UPSET THEIR OWN MERGER PROGRAM.  SUCH ACTION,
HOWEVER, INFERS A MANAGERIAL DECISION BY EACH THAT THE ANTICIPATED
BENEFITS FROM ITS INDIVIDUAL MERGER PROGRAM WILL OUTWEIGH ANY INJURY OR
HARM WHICH MAY RESULT FROM OTHER MERGER PLANS."  PENN-CENTRAL REPORT,
AT 304.  (FN30) 

THE APPROACH WHICH THIS STATEMENT AND MANY OF THE COMMISSION'S
RULINGS AND PRACTICES REVEAL IS BASED UPON A SERIES OF UNACCEPTABLE
ASSUMPTIONS.  IT IS SIMPLY UNREALISTIC, FOR EXAMPLE, TO BELIEVE THAT
ALL THE RAILROADS WILL ALWAYS BE CORRECT IN THEIR ESTIMATE EVEN OF
THEIR OWN BEST INTERESTS.  WHEN A RAILROAD HAS INCORRECTLY ESTIMATED
ITS SELF-INTEREST, MOREOVER, ITS REACTION MAY WELL UPSET THE PRIVATE
AGREEMENTS OR UNDERSTANDINGS UPON WHICH THE COMMISSION HAS IN EFFECT
ALLOWED ITS FINDINGS TO REST.  THUS WHEN E-L REALIZED THAT PENN-CENTRAL
MIGHT BE APPROVED BEFORE IT HAD SECURED VOLUNTARY INCLUSION IN N&W, IT
ABANDONED ITS AGREEMENT WITH N&W, UPON WHICH THE COMMISSION RELIED, AND
PETITIONED FOR INCLUSION IN PENN-CENTRAL, THEREBY SETTING INTO MOTION
THE CONTROVERSY IN THIS CASE.  SEE 324 I.C.C., AT 61-62 (REPRESENTATION
OF COUNSEL QUOTED IN DISSENTING OPINION).  MOST RECENTLY, C&O-B&O, AND
THEIR FAMILY LINES, SOUGHT TO REOPEN PENN-CENTRAL TO INTRODUCE EVIDENCE
OF TRAFFIC DIVERSION.  THE COMMISSION OBSERVED, IN REFUSING TO HEAR THE
EVIDENCE, THAT THE EXAMINERS' FINDINGS THAT THE NET EFFECT OF THE
MERGER WOULD NOT BE DETRIMENTAL TO THESE CARRIERS OR TO THEIR ABILITY
TO PROVIDE ADEQUATE SERVICE "ARE AS MUCH BASED ON A FAILURE OF THE
SEVERAL PETITIONERS TO COME FORWARD WITH ASSERTIONS OR PROOF OF
INJURIOUS TRAFFIC DIVERSION AS ON ANY AFFIRMATIVE SHOWING OF NO
EFFECT."  328 I.C.C., AT 317.  FOR THE FIRST TIME REVEALING INDIGNATION
TOWARD A PRACTICE LONG CONDONED, THE ICC STATED THAT THE "MEASURED AND
DELIBERATE SILENCE" OF THE RAILROADS AT THE HEARING SUPPORTS "THE
INFERENCE THAT THEY SAW MORE TO BE GAINED THEREBY IN THEIR OWN SYSTEM
BUILDING ASPIRATIONS THAN WOULD RESULT FROM FORCEFUL OPPOSITION LIKELY
TO AROUSE COUNTER OPPOSITION.  NOW, WITH THE N&W-NICKEL PLATE MERGER
AND THE C&O-B&O CONTROL TRANSACTIONS SAFELY BEYOND CHALLENGE,  ...
PETITIONERS HAVE NOTHING TO LOSE AND PERHAPS MUCH TO GAIN BY BREAKING
THEIR SILENCE."  IBID. 

ULTIMATELY, HOWEVER, THE REASON RELIANCE UPON THE ESTIMATES OF
RAILROADS OF THEIR OWN BEST INTERESTS IS OBJECTIONABLE IS SIMPLY THAT
THE BEST INTERESTS OF THE RAILROADS ARE NOT NECESSARILY CONSISTENT WITH
THE PUBLIC INTEREST, AND IT IS THE LATTER WHICH THE COMMISSION IS
DIRECTED TO ADVANCE.  IT MAY BE, AS COMMISSIONER TUCKER STATED EARLY IN
THIS "GIGANTIC GAME OF DOMINOES" THE COMMISSION HAS BEEN PLAYING, 327
I.C.C., AT 550, "THAT EACH CARRIER HAS THE UNALIENABLE PRIVATE RIGHT TO
ABDICATE ITS PREROGATIVES TO OPPOSE ANY CONSOLIDATION.  IT IS THE
PRIMARY RESPONSIBILITY OF THE COMMISSION, HOWEVER, TO PRESERVE THE
DEVELOPMENT OF A SOUND TRANSPORTATION SYSTEM IN THE PUBLIC INTEREST,
AND WHERE AN APPLICATION MAY OFFER THE POSSIBILITIES OF PUBLIC INJURY,
THE COMMISSION MUST STRIVE TO OBTAIN A RECORD WHICH COMPREHENSIVELY
COVERS PUBLIC CONSIDERATIONS."  C&O - CONTROL, 317 I.C.C., AT 326.  SEE
GENERALLY, THE RAILROAD MERGER PROBLEM, REPORT OF THE SUBCOMMITTEE ON
ANTITRUST AND MONOPOLY OF THE SENATE JUDICIARY COMMITTEE, 88TH CONG.,
1ST SESS. (COMM. PRINT 1963).  THE COMMENDABLE INDUSTRIAL STATESMANSHIP
DEMONSTRATED BY THE RAILROADS ON MANY OCCASIONS IN THESE RECENT
PROCEEDINGS ONLY SERVES, BECAUSE OF THE COHESION THIS DEMONSTRATES, SEE
JAFFE, OP. CIT. SUPRA, P. 405, AT 11-13, TO AGGRAVATE THE DANGER THAT
"GROWS OUT OF THE TENDENCY OF THESE GIANT CORPORATIONS TO COMPROMISE
THEIR OWN DIFFERENCES AT THE EXPENSE OF THE UNORGANIZED PUBLIC," 2
DAVIS, OP. CIT. SUPRA, N. 21, AT 378.  THE REGULATORY AGENCY MUST BE
THE BULWARK AGAINST SUCH COMPROMISE.  IT IS "A REQUISITE FOR
ADMINISTRATIVE VIABILITY,"  (FN31)  THAT "THE OUTLOOK OF THE COMMISSION
AND ITS POWERS MUST BE GREATER THAN THE INTEREST OF THE RAILROADS OR OF
THAT WHICH MAY AFFECT THOSE INTERESTS."  I.C.C.  V. CHICAGO, R.I.&P.R.
CO., 218 U.S. 88, 103.  SEE SCENIC HUDSON PRESERVATION CONFERENCE V.
F.P.C., 354 F.2D 608 (C.A. 2D CIR.), CERT. DENIED, 384 U.S. 941. 

THIS MERGER MAY WELL BE IN THE PUBLIC INTEREST, AS WELL AS IN THE
INTERESTS OF THE RAILROADS INVOLVED.  BUT THE COMMISSION HAS FAILED TO
GO ABOUT DECIDING THIS QUESTION IN A MANNER DESIGNED TO ACCOMPLISH ITS
STATUTORY RESPONSIBILITY.  "DEFERENCE TO ADMINISTRATIVE DECISIONMAKING
ASSUMES PROCEDURES WHICH ASSURE A FAIR HEARING TO THE AFFECTED
INTERESTS  ...  ."  JAFFE, OP. CIT. SUPRA, AT 566.  "AS SOON AS THE
SEARCH FOR THE PUBLIC INTEREST, EVEN SEEMINGLY, BECOMES A SECONDARY
CONSIDERATION IN CASES INVOLVING MORE THAN THE ADJUDICATION OF PRIVATE
RIGHTS, NO MATTER HOW CONCLUSIVE THE EXIGENCIES OF THE SITUATION
APPEAR, THE INDEPENDENT COMMISSION IS DOOMED TO IMPOTENCY AS AN
INSTRUMENT OF GOVERNMENT."  C&O - CONTROL, 317 I.C.C., AT 297
(DISSENTING OPINION).  (FN32) 

FN1  CHESAPEAKE & O. RY. CO. - CONTROL - BALTIMORE & O.R. CO., 317
I.C.C. 261, SUSTAINED SUB NOM. BROTHERHOOD OF MAINTENANCE OF WAY
EMPLOYEES V. UNITED STATES, 221 F. SUPP. 19 (D.C.E.D. MICH.), AFF'D PER
CURIAM, 375 U.S. 216. 

FN2  NORFOLK & W. RY. CO. AND NEW YORK, C. & ST. L.R. CO. - MERGER,
324 I.C.C. 1. 

FN3  PENNSYLVANIA AND CENTRAL CLAIM WE SHOULD NOT PASS UPON THE
DEPARTMENT OF JUSTICE'S CONTENTION THAT THE COMMISSION SHOULD HAVE
DELAYED CONSUMMATION UNTIL INCLUSION OF THE SMALLER ROADS IN A MAJOR
SYSTEM WAS ASSURED.  THE ISSUE IS, HOWEVER, PRESENTED BY THE ICC
ITSELF, IN ITS STATEMENT OF QUESTIONS PRESENTED, WHERE IT RECITES THAT,
WHETHER THE DISTRICT COURT ERRED IN REFUSING TO ENJOIN CONSUMMATION
PENDING ASSURANCE OF INCLUSION, IS A QUESTION EMBRACED WITHIN THE
GENERAL QUESTION PRESENTED ON THESE APPEALS.  BRIEF OF THE ICC, P. 4. 
A NUMBER OF THE RAILROAD APPELLANTS, MOREOVER, CLAIM THEY HAVE PROPERLY
PRESENTED THE QUESTION OF DELAY PENDING INCLUSION.  THESE
REPRESENTATIONS AMPLY FULFILL THE REQUIREMENT OF THIS COURT'S RULE
15(1)(C)(1), AND THE POINT HAS IN FACT BEEN FULLY BRIEFED AND ARGUED. 

NEITHER IS THERE MERIT TO THE CLAIM THAT THIS ISSUE, CLEARLY RAISED
BEFORE THE ICC, 327 I.C.C., AT 528, WAS NOT RAISED BEFORE THE DISTRICT
COURT.  COUNSEL FOR D&H COMPLAINED THAT THE COMMISSION FOUND "THE ONLY
WAY THE D&H COULD BE PROTECTED IS THROUGH INCLUSION IN SOME SYSTEM, BUT
THEY HAVE NOT YET MADE A FINDING  ...  AS TO WHETHER OUR INCLUSION IN
ANY SYSTEM IS CONSISTENT WITH THE PUBLIC INTEREST," TRANSCRIPT, P. 58,
AND COUNSEL FOR C&O WAS UNABLE TO ANSWER MEANINGFULLY JUDGE FRIENDLY'S
COMMENT THAT HIS "POSITION IS REALLY THAT THE MERGER CANNOT BE
CONSUMMATED UNTIL ALL THESE OTHER PROCEEDINGS ARE CARRIED TO A
CONCLUSION  ...  ," ID., AT 80.  THE DISTRICT COURT EXPLICITLY REJECTED
"THE CLAIMS THAT CONSUMMATION OF THE MERGER SHOULD BE DEFERRED UNTIL
CONCLUSION OF ALL PENDING RAIL MERGER PROCEEDINGS  ...  ."  259 F.
SUPP. 964, 972. 

FN4  ALTHOUGH THIS CASE ARISES AS AN APPEAL FROM THE DISTRICT COURT'S
DENIAL OF MOTIONS FOR INTERLOCUTORY INJUNCTION, THE PARTIES RECOGNIZE
THAT THE LAWFULNESS OF THE ICC'S ORDER PERMITTING IMMEDIATE
CONSUMMATION OF THE MERGER IS IN ISSUE BEFORE THIS COURT. 

FN5  THE ICC'S MOST RECENT PRONOUNCEMENT ON THE ISSUE IS IN GREAT
N.P.&B.L.R. CO. - MERGER, F.D. NO. 21478, P. - , DECIDED MARCH 31,
1966, RECONSIDERATION GRANTED JANUARY 4, 1967: 

"THE LEGISLATIVE HISTORY OF SECTION 5 CLEARLY SHOWS THAT THE CONGRESS
DID NOT ADOPT A POLICY FOSTERING OR ENCOURAGING RAILROAD UNIFICATIONS. 
IT WAS THE TRANSPORTATION ACT OF 1920, NOT THE TRANSPORTATION ACT OF
1940, THAT EMBODIED A POLICY FAVORING RAILROAD CONSOLIDATIONS  ...  .
NO SUCH POLICY IS EXPRESSED IN SECTION 5.  TO INTERPRET SECTION 5 AS
IMPLYING SUCH A POLICY IS A PERVERSION OF LEGISLATIVE HISTORY AND
INTENT.  THE PUBLIC INTEREST SCALE IS BALANCED.  IT IS NOT TO BE TIPPED
BY THE SLIGHTEST PRESUMPTION FOR OR AGAINST MERGER." 

IT IS MEANINGLESS, OF COURSE, TO CONTEND THAT THE ACT FAVORS
UNIFICATIONS THAT ARE OTHERWISE CONSISTENT WITH THE PUBLIC INTEREST; IT
ALSO DISFAVORS UNIFICATIONS INCONSISTENT WITH THE PUBLIC INTEREST. 

FN6  CHICAGO, B.&Q.R. CO. - CONTROL, 271 I.C.C. 63, 146.  SEE ALSO
DETROIT, T.&I.R.  CO. - CONTROL, 275 I.C.C. 455, 489, SUSTAINED SUB
NOM. NEW YORK, C. & ST.L.R. CO. V. UNITED STATES.  95 F. SUPP. 811
(D.C.N.D. OHIO). 

FN7  THE STAFF STUDY BY THE COMMISSION'S BUREAU OF TRANSPORT
ECONOMICS AND STATISTICS ON "RAILROAD CONSOLIDATIONS AND THE PUBLIC
INTEREST" (P. 46), ACCURATELY LABELS THIS FACTOR "A HIGHLY IMPORTANT
CRITERION, SINCE IT INVOLVES THE BASIC PROBLEM OF COMPETITION AMONG
RAILROADS."  REPRINTED AS EXHIBIT 11, HEARINGS BEFORE THE SUBCOMMITTEE
ON ANTITRUST AND MONOPOLY ON S. 3097, 87TH CONG., 2D SESS., PT. 2, P.
859 (1962). 

FN8  WHEN E-L, FOR EXAMPLE, WITHDREW ITS PETITION FOR INCLUSION IN
N&W THE COMMISSION EXPRESSLY STATED THAT THE TRANSPORTATION ACT OF 1940
"DOES NOT LIMIT OUR PARTICIPATION IN CARRIER-INITIATED CONSOLIDATIONS
TO PASSING UPON A PROPOSAL ON A TAKE-IT-OR-LEAVE-IT BASIS.  WE ARE
SPECIFICALLY ENJOINED TO CONSIDER, AMONG OTHER THINGS, THE EFFECT  ...
UPON THE PUBLIC INTEREST OF THE INCLUSION, OR FAILURE TO INCLUDE, OTHER
RAILROADS IN THE TERRITORY INVOLVED IN THE PROPOSED TRANSACTIONS."  324
I.C.C., AT 26.  ACCORD, N.Y. CENTRAL SECURILIES CORP. V. UNITED STATES,
287 U.S. 12, 28; TOLEDO, P.&W.R. CO. - CONTROL, SUPRA, 295 I.C.C., AT
529.    FN9  ACCORD, ALTON R. CO. - ACQUISITION, 175 I.C.C. 301, 313,
WHERE THE COMMISSION LATER CONCLUDED, 189 I.C.C. 271, 285, THAT THE
PUBLIC CONVENIENCE AND NECESSITY DID NOT REQUIRE ACQUISITION OF THE
SHORT LINES INVOLVED.  THIS IS ALSO THE COURSE FOLLOWED BY THE ICC WITH
RESPECT TO THE NEW HAVEN IN THE PENN-CENTRAL PROCEEDING. 

FN10  ACCORD, NEW YORK, C. & ST.L.R. CO. - CONTROL, 224 I.C.C. 259,
269, WHERE THE COMMISSION, IN APPROVING A CONTROL APPLICATION, IMPOSED
A CONDITION REQUIRING THE APPLICANT TO ABIDE BY ITS FINDINGS CONCERNING
WHETHER THE APPLICANT SHOULD ACQUIRE CERTAIN AFFECTED SHORT LINES. 

FN11  IN NEW YORK, C. & ST.L.R. CO. - CONTROL, SUPRA, ONE OF THE TWO
SHORT LINES SEEKING INCLUSION INTRODUCED NO EVIDENCE AT ALL, WHILE THE
OTHER MADE AN INADEQUATE SHOWING THAT THE PUBLIC INTEREST REQUIRED ITS
PRESERVATION AND NO SHOWING WHATEVER THAT THE PROPOSED CONTROL
TRANSACTION WOULD RESULT IN DIVERSION OF ITS TRAFFIC.  224 I.C.C., AT
266-268.  GOING OUT OF ITS WAY "TO THE END THAT THE INTENTS AND
PURPOSES OF SECTION 5 MAY BE ACCOMPLISHED  ... ," THE ICC LEFT OPEN THE
DOOR TO THE SHORT LINES' INCLUSION IF THEY COULD DEMONSTRATE ITS
NECESSITY OR DESIRABILITY.  224 I.C.C., AT 269.   OTHER EXAMPLES OF
DEFERRAL OF AGENCY ACTION CITED BY APPELLEES ARE INAPPOSITE.  THE ICC
HAS DEFERRED EMPLOYEE PROTECTION, RESERVING JURISDICTION TO IMPOSE
NECESSARY TERMS AND CONDITIONS.  A.C. ALLYN & CO. - CONTROL, 50 M.C.C.
305, 310-311.  THE LIKELIHOOD THAT THIS SORT OF PROBLEM WILL HAVE
UNEXPECTED CONSEQUENCES IS VERY SLIGHT.  IN ATLANTIC RFG.  CO. V.
PUBLIC SERV. COMM'N, 360 U.S. 378, 392, THE COURT RULED THE FPC COULD
ISSUE A CERTIFICATE WITHOUT MAKING A FINAL DETERMINATION OF THE VITAL
MATTER OF PRICE, SO LONG AS THE CERTIFICATE REASONABLENESS OF THE PRICE
FIXED BY THE PARTIES IS BEING DETERMINED" IN SUBSEQUENT HEARINGS.  NO
INJURY WAS CONTEMPLATED, AND THE ULTIMATE ISSUE WAS NOT LIKELY TO BE
PREJUDGED. 

FN12  THE EXAMINERS FOUND IT "HIGHLY LIKELY THAT THE PUBLIC INTEREST"
LIES IN THE DIRECTION OF INCLUSION IN N&W.  PENN-CENTRAL REPORT, F.D.
NO. 21989, FEB. 26, 1965, AT 415.  THE COMMISSION HAD INDICATED IN THE
N&W-NICKEL PLATE PROCEEDING ITS RECEPTIVENESS TO INCLUSION IN N&W, AND
IT POSTPONED CONSIDERATION OF INCLUSION IN PENN-CENTRAL PENDING THE
OUTCOME OF THE N&W INCLUSION PROCEEDING. 

FN13  THE EXAMINERS STATED:  "NO CONSIDERATION HAS BEEN GIVEN TO THE
EFFECT OF THE PROPOSED INCLUSION HERE OF THE D&H, B&M AND/OR E-L UPON
COMPETITION, AND NO EFFORT HAS BEEN MADE TO ASSESS OR ACCOMMODATE THE
ANTI-TRUST LAWS IN LIGHT OF SUCH ACTION.  WE BELIEVE RESOLUTION OF SUCH
ISSUES WOULD BE PREMATURE."  PENN-CENTRAL REPORT, AT 418.  THE
COMMISSION ADOPTED THESE FINDINGS, 327 I.C.C., AT 481-482, AND
EXPLICITLY RESERVED, UNTIL AFTER INCLUSION IN N&W WAS DENIED, THE
QUESTION "WHETHER INCLUSION OF ANY ONE OR ALL OF E-L, B&M AND D&H IN
THE TRANSPORTATION COMPANY'S SYSTEM WOULD BE CONSISTENT WITH THE PUBLIC
INTEREST  ...  ," 327 I.C.C., AT 531. 

FN14  AN ELIMINATION OF COMPETITION IN NEW ENGLAND AND NEW YORK WAS
NOT AMONG EVEN THE POSSIBLE ANTICOMPETITIVE EFFECTS OF THE MERGER
CONTEMPLATED AND WEIGHED.  TO THE CONTRARY, THE EXAMINERS DREW UP A
CHART (APPENDIX T-2 OF THEIR REPORT) WHICH INCORPORATED THE THREE ROADS
IN THE N&W SYSTEM, AND WHICH THEY USED TO MEASURE COMPETITIVE IMPACT. 
MOREOVER, THE EXAMINERS RECOMMENDED AS A CONDITION OF APPROVAL THAT
PENN AGREE TO GRANT TRACKAGE RIGHTS TO N&W BETWEEN HAGERSTOWN,
MARYLAND, N&W'S NORTHERNMOST TERMINUS IN THE EAST, AND WILKES-BARRE,
PENNSYLVANIA, THE SOUTHWESTERN TERMINUS OF D&H OPERATIONS, THEREBY
CONNECTING THE ROADS AND ENABLING THEM TO COMPETE WITH PENN-CENTRAL FOR
TRAFFIC BETWEEN NORTHERN NEW YORK-NEW ENGLAND AND THE SOUTH-SOUTHWEST. 
PENN-CENTRAL REPORT, AT 429-430.  THE COMMISSION FOUND IT UNNECESSARY
TO UPHOLD THE EXAMINERS' ACTION, SINCE THE PARTIES HAD VOLUNTARILY
ENTERED INTO AN AGREEMENT EFFECTUATING THE EXAMINERS' VIEWS, AND SINCE
AN APPLICATION FOR COMMISSION APPROVAL OF THE AGREEMENT HAD NOT YET
BEEN FILED.  327 I.C.C., AT 528.  FINALLY, IN APPRAISING THE EFFECT OF
THE MERGER UPON SERVICE TO NEW YORK CITY, THE EXAMINERS ANTICIPATED
THAT E-L AND N&W TOGETHER WOULD PROVIDE ONE LINE OF COMPETITION.  PENN
CENTRAL REPORT, AT 433.  THE COMMISSION LIKEWISE ASSUMED IN APPRAISING
ANTICOMPETITIVE EFFECT THAT E-L WOULD CONTINUE TO COMPETE WITH THE
APPLICANTS IN THE NEW YORK PORT AREA, AND SPECIFICALLY CITED AS AN
EXAMPLE OF CONTINUING LINES OF COMPETITION THAT "N&W CAN JOIN WITH E-L,
LV (THE LEHIGH VALLEY), D&H AND B&M, AMONG OTHERS, IN HANDLING
TRANSCONTINENTAL TRAFFIC TO AND FROM THE PORT OF N.Y. AND NEW ENGLAND
...  ."  327 I.C.C., AT 517, 514. 

FN15  IN REFUSING TO RECOMMEND REQUIRING B&M'S INCLUSION,
COMMISSIONER WEBB POINTED OUT THAT SUCH A COURSE WOULD EXPOSE N&W TO
SERIOUS RISK "AND WOULD FORECLOSE B&M FROM SEEKING INCLUSION IN THE
PENN-CENTRAL SYSTEM OR IN THE PROPOSED N&W-C&O SYSTEM ON TERMS WHICH,
BY REASON OF ITS STRATEGIC VALUE OR IMPROVED EARNINGS, ARE MORE
FAVORABLE THAN THOSE JUSTIFIED BY THE RECORD HEREIN."  N&W INCLUSION
REPORT, AT 154.  AN N&W-C&O SYSTEM WOULD, AS THE COMMISSIONER
RECOGNIZED, BE FAR MORE ABLE FINANCIALLY TO ABSORB THE RISK OF
INCLUDING B&M, AND WOULD BE WILLING TO OFFER MORE THAN B&M'S ACTUAL
VALUE, POSSIBLY OUT OF THE SAVINGS CONTEMPLATED IN THE N&W-C&O MERGER. 
IN FACT, UNDER THE PLAN OFFERED BY N&W-C&O FOR MERGER AND INCLUSION,
B&M SHAREHOLDERS WOULD RECEIVE ALMOST TWICE THE ACTUAL VALUE OF THEIR
HOLDINGS, AND, SIGNIFICANTLY, COMMISSIONER WEBB SETTLED ON THIS SAME
AMOUNT AS THE MINIMUM RATE WHICH N&W MUST PAY IF IT DECIDES TO ABSORB
B&M.  ID., AT 156. 

FN16  N&W INCLUSION REPORT, AT 43.  SEE NOTE 18, INFRA, FOR FURTHER
EXPLANATION. 

FN17  COUNSEL FOR PENN AND CENTRAL REPRESENTED IN THE DISTRICT COURT
THAT HE CONSTRUED THE TRAFFIC CONDITIONS TO PREVENT PENN-CENTRAL FROM
USING ITS SOLICITATION FORCE TO GET TRAFFIC NORMALLY MOVING ON THE
LINES OF THE THREE ROADS ROUTED TO THE LINES OF PENN-CENTRAL. 
TRANSCRIPT, P. 132. 

FN18  IN WORKING OUT THE VALUE OF E-L'S STOCK FOR THE PURPOSE OF AN
EXCHANGE WITH N&W, COMMISSIONER WEBB, APPLYING THE PRINCIPLE OF
RECIPROCAL ADJUSTMENTS, REFUSED TO DEDUCT FROM E-L'S VALUE THE
ESTIMATED IMPACT OF PENN-CENTRAL WITHOUT ALSO DEDUCTING FROM N&W'S
VALUE THE ESTIMATED IMPACT OF PENN-CENTRAL.  SINCE N&W SUBMITTED NO
EVIDENCE, HE PROCEEDED UPON THE ASSUMPTION THAT THE IMPACT UPON N&W
WOULD BE PROPORTIONATE WITH THE ESTIMATED IMPACT UPON E-L.  THE RESULT
OF THIS WAS TO ENABLE HIM TO DISCOUNT COMPLETELY E-L'S CAPITAL LOSS. 
IF THIS METHOD OF VALUATION WERE APPROVED, HE NOTED, "THE QUESTION OF
CAPITAL LOSS INDEMNIFICATION  ...  (IN PENN-CENTRAL) WILL BECOME
MOOT."  ID., AT 47. 

FN19  IN FACT, THE MORE EFFECTIVE ARE THE PROTECTIVE CONDITIONS, THE
GREATER WILL BE THEIR INTERFERENCE WITH ACHIEVEMENT OF THE PLANNED
ECONOMIES AND IMPROVEMENTS.  PENN VICE-PRESIDENT LARGE RECENTLY
TESTIFIED AT THE REOPENED HEARINGS THAT "THE FIRST TWO MILLION DOLLARS
WE SAVE AS A RESULT OF MERGER IS A GOOD FIVE YEARS AWAY."  TRANSCRIPT
OF HEARING OF DECEMBER 15, 1966, F.D. 21989, P. 22343.  QUALIFIED BY
THE STATEMENT THAT HE HAD MADE NO STUDIES ON THE MATTER, HE TESTIFIED
THAT HE SAW "NO CHANCE OF ANY SUBSTANTIAL SAVINGS IN THE NEXT TWO
YEARS."  ID., AT 22344. 

FN20  UNDER THIS POWER, THE COMMISSION CALLED UPON MR. LOUIS D.
BRANDEIS, LATER MR. JUSTICE BRANDEIS, TO REPRESENT THE PUBLIC IN A
GENERAL RATE INCREASE CASE.  THE FIVE PER CENT CASE, 31 I.C.C. 351. 

FN21  SEE GENERALLY 2 DAVIS, ADMINISTRATIVE LAW SECS 15.01-15.14
(1958). 

FN22  IN THE PENN-CENTRAL CASE, THE EXAMINERS RECOMMENDED, AS A
CONDITION TO APPROVAL OF THE MERGER, THAT PENN BE REQUIRED TO SELL THE
LEHIGH VALLEY TO C&O-B&O, IF SUCH SALE WERE LATER FOUND TO BE IN THE
PUBLIC INTEREST, IN ORDER TO ASSURE NEW YORK CITY AN ADDITIONAL
COMPETITIVE LINE.  PENN-CENTRAL REPORT, AT 434-435.  THE COMMISSION
FELT IT DID NOT HAVE TO PASS UPON THIS RECOMMENDATION, SINCE PENN
AGREED AFTER THE EXAMINERS' REPORT WAS ISSUED TO SELL LV TO C&O-B&O.
327 I.C.C., AT 517. 

FN23  "A REGULATORY BODY SUCH AS THE INTERSTATE COMMERCE COMMISSION
CANNOT PROPERLY DISCHARGE ITS DUTY IF IT REMAINS IGNORANT OF RELEVANT
FACTS SIMPLY BECAUSE THEY WERE NOT INTRODUCED IN EVIDENCE.  THE
COMMISSION SHOULD ITSELF SUPPLY DEFICIENCIES IN THE RECORD.  IT SHOULD
BRING TO LIGHT MATERIAL WHICH THE PARTIES HAVE EITHER OVERLOOKED OR
HAVE WILLFULLY FAILED TO CALL TO ITS ATTENTION.  IT SHOULD AID THOSE
PARTIES WHO THROUGH LACK OF RESOURCES ARE UNABLE ADEQUATELY TO PRESENT
THEIR CASES.   IT SHOULD MAKE FULL USE OF THE EXPERT KNOWLEDGE OF
COMMISSIONERS AND STAFF, AND OF THE MASS OF TRANSPORTATION INFORMATION
THAT IT HAS ACCUMULATED THROUGH THE YEARS."  H.R. DOC. NO. 678, SUPRA,
P. 70.  SEE EASTERN-CENTRAL MOTOR CARRIERS ASSN. V. UNITED STATES, 321
U.S. 194, 208-210, 212, 216-217. 

FN24  IT WAS THE POSITION OF THE CHAIRMAN OF THE BOARD OF
PENNSYLVANIA BEFORE CONGRESS THAT THE ICC SHOULD LEAVE THE FATE OF THE
SMALLER ROADS TO BE WORKED OUT AFTER THE PRINCIPAL MERGERS HAD BEEN
APPROVED.  HEARINGS ON S. 3097 BEFORE THE SUBCOMMITTEE ON ANTITRUST AND
MONOPOLY OF THE SENATE JUDICIARY COMMITTEE, 87TH CONG., 2D SESS., P.
385 (1962).  HE TESTIFIED THAT IF AN ATTEMPT WAS MADE TO STOP THE THREE
MAIN PROCEEDINGS, THE ENTIRE PROCESS "WOULD STOP, THERE IS NO DOUBT
ABOUT IT," ID., AT 384, AND RESPONDED TO THE QUERY WHETHER THE ICC "HAS
NO ALTERNATIVE BUT TO BUY THE PACKAGE OR NOTHING AT ALL," THAT "IT IS
THE FACT  ...  ," ID., AT 397. 

FN25  THERE ARE INDICATIONS THAT THE ICC HAS PLANNED ALL ALONG FOR
THREE SYSTEMS.  THE MOST STRIKING OF THESE IS THE USE BY THE PENN
CENTRAL EXAMINERS OF A CHART TO EVALUATE THE MERGER'S ANTICOMPETITIVE
EFFECT WHICH ACCOUNTS FOR ALL THE SMALLER ROADS.  PENN-CENTRAL REPORT,
APPENDIX T-2.   IT NEED HARDLY BE SAID THAT THE ICC WOULD BE PROCEEDING
UNLAWFULLY IF IT HAD DETERMINED, WITHOUT NOTICE OR HEARING, THAT A
THREE-SYSTEM STRUCTURE WAS ESSENTIAL, AND HAD THEN GONE THROUGH THE
MOTIONS OF ADJUDICATION. 

FN26  THE ICC MADE NO FINDING THAT EITHER C&O-B&O OR N&W-NICKEL PLATE
WOULD LEAD TO THE DESTRUCTION OF ANY OTHER ROAD.  SEE 317 I.C.C., AT
265-266, 282; 324 I.C.C., AT 27-31. 

FN27  THERE IS ABUNDANT EVIDENCE THAT THE THREE RECENT PROCEEDINGS
ARE HIGHLY INTERRELATED.  CENTRAL PETITIONED FOR A GENERAL COMMISSION
INVESTIGATION DURING THE C&O-B&O PROCEEDING, ALLEGING THAT THE ICC
SHOULD NOT UPSET THE EXISTING COMPETITIVE BALANCE BEFORE EVALUATING ALL
THE FACTS AND DETERMINING THE PART EACH PROPOSAL SHOULD PLAY IN THE
SOLUTION OF THE EASTERN RAILROAD PROBLEM.  NUMEROUS OTHER PARTIES IN
THAT CASE ALSO PETITIONED FOR CONSOLIDATION OF THE PROCEEDINGS, EITHER
FOR HEARING OR DECISION, WITH N&W-NICKEL PLATE AND LATER WITH PENN
CENTRAL. 

IN THE N&W CASE, THE JUSTICE DEPARTMENT ARGUED THAT THE RECORD WAS
INADEQUATE TO DETERMINE COMPETITIVE IMPACT AND STATED "THAT ONLY
THROUGH CONSOLIDATION CAN A CLEAR PICTURE BE OBTAINED OF THE EFFECTS OF
THE NORFOLK & WESTERN-NICKEL PLATE AND PENNSYLVANIA-CENTRAL MERGERS ON
THE ERIE-LACKAWANNA, THE DELAWARE & HUDSON, AND THE NEW ENGLAND
LINES."  THE RELATIONSHIP BETWEEN THE N&W-NICKEL PLATE AND PENN-CENTRAL
PROCEEDINGS WAS PALPABLE, NOT ONLY ON THE GROUND THAT NICKEL PLATE
COMPETED WITH CENTRAL, BUT ALSO BECAUSE OF THE FACTS THAT (1) PENN
CONTROLLED N&W AND HAD TAKEN THE POSITION THAT IT WOULD DIVEST ONLY
WHEN IT KNEW HOW IT STOOD WITH RESPECT TO ITS APPLICATION TO MERGE WITH
CENTRAL, AND (2) IT WAS ONLY THROUGH PENN'S ACQUIESCENCE THAT N&W
MANAGED TO CONTRACT FOR THE PURCHASE OF THE 108-MILE SANDUSKY LINE
WHICH ENABLED IT TO LINK ITS MAIN LINE WITH NICKEL PLATE'S MAIN LINE,
324 I.C.C., AT 74. 

COMMISSIONER WEBB FELT THAT NEITHER THE N&W INCLUSION PROCEEDING "NOR
THE PENN-CENTRAL CASE CAN BE FULLY UNDERSTOOD IF CONSIDERATION OF ONE
IS DIVORCED FROM THE OTHER.  UNFORTUNATELY, THE COMMISSION'S ACTION IN
DECIDING THE CASES SEPARATELY HAS TENDED TO BLUR VITAL ISSUES COMMON TO
BOTH PROCEEDINGS."  N&W INCLUSION REPORT, AT 23. 

FN28  THE BEST POSSIBLE EXAMPLE IS WHAT HAPPENED IN THIS CASE. 
EVIDENCE WHICH CENTRAL MIGHT HAVE PRESENTED EARLIER IN THE FORM OF AN
APPRAISAL OF THE EFFECTS OF C&O-B&O AND N&W-NICKEL PLATE UPON ITS
ABILITY TO OPERATE, TOOK THE FORM IN THE PENN-CENTRAL PROCEEDING OF THE
CONTENTION THAT, WITHOUT A PENN-CENTRAL MERGER, BOTH PENN AND CENTRAL
WOULD BE AT A COMPETITIVE DISADVANTAGE SINCE NEITHER "SEPARATELY WOULD
COMPARE WITH C&O-B&O OR N&W-NICKEL PLATE IN ANY ELEMENT OF STRENGTH,
WHETHER TESTED BY TRAFFIC VOLUME, FINANCIAL RESULTS, OR THE MEANS FOR
IMPROVING SERVICE."  BRIEF OF APPLICANTS, F.D. NOS. 21989-21990, DATED
JUNE 1, 1964, P. 141.  AND IN APPRAISING THE ANTICOMPETITIVE EFFECTS OF
A PENN-CENTRAL MERGER, THE EXAMINERS IN THIS CASE STATED THAT,
"ALTHOUGH IN CERTAIN  ...  CATEGORIES, THE INCREASES (TO BE BROUGHT
ABOUT BY THE MERGER) ARE SIGNIFICANT, THE DEGREE OF RELATIVE DOMINANCE
BY P.R.R. IN COMPARISON WITH THE OTHER ROADS, HAS BEEN DECREASED
SIGNIFICANTLY AS A RESULT OF THE CONSUMMATION OF THE N&W AND C&O-B&O
TRANSACTIONS BY REASON OF THE FACT THAT THESE LATTER TWO SYSTEMS HAVE
ALSO INCREASED THEIR RELATIVE SHARE."  PENN-CENTRAL REPORT, AT 424. 
THE COMMISSION, TOO, INDICATED ITS CONVICTION THAT PENN-CENTRAL BECAME
MORE JUSTIFIABLE NOW THAT THE OTHER SYSTEMS WERE AUTHORIZED, BY CITING
"THE GROWING STRENGTH OF THE N&W AND C&O-B&O SYSTEMS" AS A CHECK
AGAINST POSSIBLE ABUSE OF ECONOMIC POWER BY PENN-CENTRAL, AND BY
POINTING OUT "THAT APPLICANTS WILL FACE INCREASING COMPETITION FROM
THOSE TWO GREATLY STRENGTHENED RAIL SYSTEMS."   327 I.C.C., AT 514,
519.    FN29  THE COMMISSION SAID, FOR EXAMPLE, IN THE C&O-B&O CASE:
"NOTWITHSTANDING CENTRAL'S WITHDRAWAL FROM THESE PROCEEDINGS, THE
EFFECT OF THE PROPOSED TRANSACTION ON THE OPERATIONS AND TRAFFIC OF
CENTRAL AND OTHER CARRIERS IS AN ISSUE TO BE CONSIDERED."  317 I.C.C.,
AT 280.  IT TOOK INSIGNIFICANT STEPS, HOWEVER, TO RESOLVE THE CONFLICTS
OF EVIDENCE CONCERNING COMPETITIVE IMPACT UPON CENTRAL, AND FAILED
ENTIRELY TO WEIGH THE COMBINED EFFECTS ON CENTRAL OF BOTH C&O-B&O AND
THE PENDING N&W-NICKEL PLATE MERGER.  SEE 317 I.C.C., AT 319. 

FN30  THE DISTRICT COURT, IN THE C&O-B&O CASE, TOOK BASICALLY THE
SAME POSITION WHEN, IN REJECTING THE JUSTICE DEPARTMENT'S CONTENTION
THAT THE PROCEEDING OUGHT TO BE CONSOLIDATED WITH OTHERS, IT CONSIDERED
"SIGNIFICANT" THE FACT THAT NO RAILROAD HAD JOINED THE DEPARTMENT IN
ITS REQUEST AND STATED THAT SELF-INTEREST WOULD HAVE REQUIRED THEM TO
DO SO IF THE ADVERSE IMPACT WAS ACTUALLY SERIOUS.  221 F. SUPP., AT
31.  THE PENN-CENTRAL EXAMINERS WERE MORE ACCURATE IN THEIR APPRAISAL,
SINCE THEY IMPLIEDLY RECOGNIZED THAT THE DECISION NOT TO APPEAR MEANT
ONLY THAT THE ROAD HAD DECIDED THE BENEFITS FROM ITS OWN MERGER PLANS
OUTWEIGHED THE DISADVANTAGES TO IT OF ANOTHER MERGER, AND NOT THAT THE
RAILROAD IN FACT CONTEMPLATED NO SERIOUS ADVERSE IMPACT UPON ITSELF. 

FN31  HUNTINGTON, THE MARASMUS OF THE ICC:  THE COMMISSION, THE
RAILROADS, AND THE PUBLIC INTEREST, 61 YALE L.J. 467, 509 (1952). 
COMPARE MORGAN, A CRITIQUE OF "THE MARASMUS OF THE ICC: THE COMMISSION,
THE RAILROADS, AND THE PUBLIC INTEREST," 62 YALE L.J. 171 (1953). 

FN32  I FIND IT SURPRISING THAT MY BROTHER FORTAS REFERS TO TODAY'S
DECISION AS "A REVERSION TO THE DAYS OF JUDICIAL NEGATION OF
GOVERNMENTAL ACTION IN THE ECONOMIC SPHERE."  IN THOSE DAYS THE COURT
TOOK A RESTRICTED VIEW OF THE POWER OF CONGRESS AND ITS AGENCIES TO
REGULATE OUR ECONOMY.  THAT VIEW "HAS LONG SINCE BEEN DISCARDED." 
FERGUSON V. SKRUPA, 372 U.S. 726, 730.  OUR POSITION TODAY, SHARED BY
THE SOLICITOR GENERAL AND THE DEPARTMENT OF JUSTICE, IS NOT ONE OF
JUDICIAL NEGATION BUT OF INSISTENCE THAT THE ICC FULFILL CONGRESS'
DIRECTIVE TO SUPERVISE IN THE PUBLIC INTEREST THE DESTINY OF THIS
NATION'S TRANSPORTATION SYSTEM. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

WHILE I AGREE WITH THE COURT THAT THE TERMS OF THE CONDITIONS WHICH
THE COMMISSION PROPOSES TO ATTACH TO THIS MERGER SHOULD BE KNOWN BEFORE
WE APPROVE IT AND WHILE I JOIN THE OPINION OF THE COURT, I WOULD GO
MUCH FURTHER.  THERE ARE UNDERLYING ISSUES BROUGHT TO US BY A FEW OF
THE PARTIES WHICH WE SHOULD FACE.  THOSE ISSUES PRESENT NOT THE MERITS
OF THE MERGER BUT THE ADEQUACY OF THE COMMISSION'S FINDINGS.  IT IS, OF
COURSE, NOT FOR US TO DETERMINE WHETHER THE MERGER IS DESIRABLE OR
UNDESIRABLE.  WE DO NOT SIT AS A PLANNING AGENCY.  NOR ARE WE ENTRUSTED
WITH THE TASK OF MAKING THE LARGE POLICY DECISIONS THAT UNDERLIE
APPROVAL OR DISAPPROVAL OF THIS NEW CONCENTRATION OF TRANSPORTATION
POWER AND WEALTH.  OUR TASK IS ONE OF REVIEW WITHIN THE NARROW CONFINES
OF SEC 5(2)(C) OF THE ACT BY WHICH CONGRESS HAS PROVIDED STANDARDS FOR
THE COMMISSION.  OUR SOLE TASK IS TO DETERMINE WHETHER THE COMMISSION
HAS SATISFIED BY ITS FINDINGS THE STANDARDS PROVIDED BY CONGRESS.  I DO
NOT THINK IT HAS. 

A WORD SHOULD BE SAID AS TO THE BACKGROUND OF THIS IRRESPONSIBLE ICC
DECISION.  THE COMMISSION EARLY INDICATED ITS PREFERENCE FOR A
CONSOLIDATION OF MOST EASTERN RAIL CARRIERS INTO THREE SYSTEMS:  (1)
C&O-B&O; (2) N&W-NICKEL PLATE; (3) PENN-CENTRAL.  THE INITIATIVE WAS
LEFT TO THE CARRIERS.  THE COMMISSION NEVER SOUGHT, PROPOSED, OR
EXAMINED INTO A MASTER PLAN.  ON JUNE 27, 1960, IT INDEED DENIED A
PETITION OF NEW YORK CENTRAL REQUESTING THE COMMISSION "TO EMBARK UPON
A GENERAL INVESTIGATION OF THE UNIFICATION, CONSOLIDATIONS, AND MERGERS
OF THE RAIL CARRIERS WITHIN CENTRAL FREIGHT AND TRUNK LINE ASSOCIATION
TERRITORIES" WITH A VIEW TO FORMULATING "PRINCIPLES BY WHICH BOTH THE
COMMISSION AND THE CARRIERS SHALL BE GOVERNED IN SECTION 5 CASES IN THE
FUTURE."  (FN1)  THE MAKING OF MERGERS WAS BASED UPON "ATTAINABLE"
ALLIANCES RATHER THAN UPON "ANY TRULY BALANCED COMPETITIVE BASIS." 
(FN2)  TODAY'S PREDICAMENT WAS PROPHETICALLY FORECAST ONLY A FEW YEARS
AGO: (FN3) 

"ALTHOUGH SUPERIOR LINEUPS MAY EXIST, IT IS SUGGESTED THAT IT IS
BETTER TO HAVE 'ATTAINABLE MERGERS' (APPROVED BY THE BIG FINANCIAL
INTERESTS) RATHER THAN NONE AT ALL.  HOWEVER, THE HELTER-SKELTER METHOD
BY WHICH THESE MERGERS HAVE BECOME 'ATTAINABLE' FOR DECISION HAS
DEVELOPED INTO A COMPLICATED PROBLEM FOR THE COMMISSION, PARTICULARLY
IN THE EAST.  THE EASTERN STORY BEGINS WITH THE COMMISSION'S APPROVAL
OF THE MERGER BETWEEN THE NORFOLK & WESTERN AND THE VIRGINIAN IN 1958,
TWO SUCCESSFUL AND COMPETITIVE COAL ROADS.  BY THAT MERGER, THE NEW
YORK CENTRAL LOST ITS ACCESS TO THE POCAHONTAS COAL TERRITORY AND IT
LOST A FRIENDLY CONNECTION WHICH MORE OR LESS HAD ALWAYS BEEN
CONSIDERED A CENTRAL ROAD.  THUS THE VIRGINIAN, APPARENTLY NOT
'ATTAINABLE' BY THE CENTRAL WAS NOW PLACED IN A POSITION TO ENHANCE THE
COMPETITIVE POWER OF THE PENNSYLVANIA (WHICH CONTROLLED THE NORFOLK &
WESTERN).  THIS MERGER, PLUS THE ANNOUNCED INTENTION OF THE CHESAPEAKE
& OHIO TO ACQUIRE CONTROL OF THE BALTIMORE & OHIO, SHARPENED THE
CENTRAL'S INTEREST IN ITS COMPETITIVE SURVIVAL AGAINST THE MASSIVE
PENNSYLVANIA SYSTEM WHICH WAS WELL ENTRENCHED IN THE RICH POCAHONTAS
COALFIELDS AND IN THE TIDEWATER PORTS.  THE CENTRAL TRIED TO OUTPOINT
THE C&O IN GETTING CONTROL OF THE B&O, BUT IT LOST OUT, LARGELY BECAUSE
IT COULDN'T CONVINCE SWISS BANKERS OF ANY FINANCIAL ADVANTAGE IN THE
MERGER.  THEN THE CENTRAL NEGOTIATED WITH THE C&O FOR A THREE-WAY
MERGER BETWEEN THE RESPECTIVE COMPANIES, WHICH THE CENTRAL'S PRESIDENT
PERLMAN BELIEVED WOULD PROVIDE A BALANCED, COMPETITIVE SYSTEM WITH THE
PENNSYLVANIA.  AT THE SAME TIME, MR. PERLMAN WAS STATING THAT A B&O-C&O
UNION WOULD SERIOUSLY HURT THE CENTRAL.  IN THE MEANTIME, THE NORFOLK &
WESTERN HAD FILED FOR MERGER WITH THE NICKEL PLATE, FOR A LEASING OF
THE WABASH, AND FOR THE PURCHASE OF THE PENNSYLVANIA'S SANDUSKY LINE. 
THIS WAS APPARENTLY THE LAST STRAW FOR THE CENTRAL.  IT HAD BEEN
OUTMANEUVERED, AND THUS DID THE ONLY THING LEFT IT COULD DO - AGREE TO
MERGE WITH THE PENNSYLVANIA.  THAT MERGER WAS 'ATTAINABLE,' AND IS NOW
THE CRUCIAL DETERMINANT OF MOST RAIL REORGANIZATIONS." 

THE COMMISSION DENIED REQUESTS TO CONSOLIDATE THE EASTERN
CONSOLIDATION PROCEEDINGS FOR DECISION.  SEE CHESAPEAKE & OHIO R. CO. -
CONTROL - BALTIMORE & OHIO R. CO., 317 I.C.C.  261, 266; NORFOLK &
WESTERN R. CO. AND NEW YORK, CHICAGO & ST. LOUIS R. CO. - MERGER, 324
I.C.C. 1, 19. 

THE COMMISSION'S PIECEMEAL, HANDS-OFF APPROACH TO THE MERGER PROBLEM
IS, HOWEVER, NOT COMMANDED BY THE TRANSPORTATION ACT OF 1940.  THERE IS
NO EVIDENCE THAT CONGRESS INTENDED TO REMOVE ENTIRELY THE PLANNING AND
POLICY FUNCTION OF THE COMMISSION WITH RESPECT TO RAIL CONSOLIDATIONS. 
INDEED, SUCH A POSITION IGNORES THE MANDATE OF THE PREAMBLE TO THE ACT
OF 1940, WHICH PROVIDES THAT ITS PROVISIONS SHALL BE ADMINISTERED WITH
A VIEW TO "PROMOTE  ...  ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE
AND FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; ...  ALL TO THE END OF DEVELOPING, COORDINATING, AND
PRESERVING A NATIONAL TRANSPORTATION SYSTEM."  AS MY BROTHER BRENNAN
NOTES, THE 1940 ACT SIGNIFICANTLY BROADENED THE COMMISSION'S
RESPONSIBILITY; IT WOULD BE "INCONGRUOUS TO ASSERT THAT THE CHANGE FROM
THE 1920 ACT APPROACH TO THAT OF THE 1940 ACT SIGNIFIES A CHANGE FROM
PLANNING TO STRICTLY AD HOC ADJUDICATION."  ANTE, P. 427.  THE
COMMISSION HAS AMPLE AUTHORITY TO INSURE A CO-ORDINATED APPROACH TO
RAILROAD CONSOLIDATIONS; IT IS NOT STRAITJACKETED BY A DISJOINTED CASE
BY-CASE APPROACH.  YET THE CONTRARY ATTITUDE OF THE COMMISSION IS
EVIDENT IN THIS CASE.  THE DEPARTMENT OF JUSTICE ARGUED THAT THE
EASTERN DISTRICT SHOULD BE SERVED BY FOUR SYSTEMS: PENN, CENTRAL, C&O
B&O, AND N&W INTO WHICH E-L SHOULD BE MERGED.  IF IT WAS SHOWN THAT THE
TRAFFIC COULD NOT SUPPORT FOUR SYSTEMS, THE DEPARTMENT PROPOSED THAT
PENN SHOULD BE CONSOLIDATED WITH N&W AND CENTRAL WITH C&O-B&O.  THE
COMMISSION'S ANSWER TO THIS WAS THAT IT COULD NOT COMPEL THE ALIGNMENTS
SUGGESTED BY THE DEPARTMENT OF JUSTICE AND WAS LIMITED TO ALIGNMENTS
SUGGESTED BY THE CARRIERS.  THIS SUGGESTS, AS MY BROTHER BRENNAN
INDICATES, A SUBSERVIENCE OF THE COMMISSION TO THE RAILROADS'
ESTIMATES, THE RAILROADS' PROPOSALS, THE RAILROADS' EVALUATIONS, THE
RAILROADS' PROPHECIES OF THE FUTURE. 

THE C&O-B&O MERGER WAS APPROVED, 317 I.C.C. 261, SUSTAINED, 221 F.
SUPP. 19, AFF'D PER CURIAM 375 U.S. 216.  THE N&W-NICKEL PLATE MERGER
WAS APPROVED, 324 I.C.C. 1; BUT ITS LEGALITY WAS NOT LITIGATED.  THIS
IS THE FIRST TIME THE QUESTION OF LEGALITY HAS BEEN PRESENTED TO THIS
COURT AFTER FULL ARGUMENT. 

NOW THE "PANIC BUTTON" IS BEING PUSHED HERE; AND WE IN TURN ARE BEING
ASKED TO ACT HURRIEDLY AND BECOME THE FINAL INSTRUMENT FOR FOISTING
THIS NEW CARTEL ON THE COUNTRY.  SOME CASES GENERATE GREAT PRESSURES ON
THE COURT.  MR. JUSTICE HOLMES ONCE REMARKED THAT THOSE CASES MAKE "BAD
LAW."  NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197, 400. 
"FOR GREAT CASES ARE CALLED GREAT  ...  BECAUSE OF SOME ACCIDENT OF
IMMEDIATE OVERWHELMING INTEREST WHICH APPEALS TO THE FEELINGS AND
DISTORTS THE JUDGMENT.  THESE IMMEDIATE INTERESTS EXERCISE A KIND OF
HYDRAULIC PRESSURE WHICH MAKES WHAT PREVIOUSLY WAS CLEAR SEEM DOUBTFUL,
AND BEFORE WHICH EVEN WELL SETTLED PRINCIPLES OF LAW WILL BEND."   ID.,
AT 400-401.  WE SHOULD, I SUBMIT, DECLINE THE PRESENT INVITATION. 

WE ARE HERE CONCERNED WITH SEC. 5(2)(C) OF THE ACT WHICH GOVERNS
RAILROAD MERGERS AND PROVIDES: 

"IN PASSING UPON ANY PROPOSED TRANSACTION UNDER THE PROVISIONS OF
THIS PARAGRAPH, THE COMMISSION SHALL GIVE WEIGHT TO THE FOLLOWING
CONSIDERATIONS, AMONG OTHERS:  (1) THE EFFECT OF THE PROPOSED
TRANSACTION UPON ADEQUATE TRANSPORTATION SERVICE TO THE PUBLIC; (2) THE
EFFECT UPON THE PUBLIC INTEREST OF THE INCLUSION, OR FAILURE TO
INCLUDE, OTHER RAILROADS IN THE TERRITORY INVOLVED IN THE PROPOSED
TRANSACTION; (3) THE TOTAL FIXED CHARGES RESULTING FROM THE PROPOSED
TRANSACTION; AND (4) THE INTEREST OF THE CARRIER EMPLOYEES AFFECTED." 

THE FOUR ITEMS LISTED ARE NOT EXCLUSIVE BUT ONLY EXEMPLARY FOR THEY
ARE ONLY "CONSIDERATIONS, AMONG OTHERS." 

THE COMMISSION'S DECISION OMITS FINDINGS ON MANY CRITICAL QUESTIONS,
ALL OF WHICH ARE, I THINK, RELEVANT IF THE STATUTORY INGREDIENTS OF THE
PUBLIC INTEREST ARE TO BE EVALUATED UNDER SEC. 5(2)(C). 

MR. JUSTICE BRANDEIS, WRITING FOR THE COURT IN UNITED STATES V.
B.&O.R. CO., 293 U.S. 454, 464, EMPHASIZED THAT BASIC FINDINGS CANNOT
BE "LEFT ENTIRELY TO INFERENCE."  MR. JUSTICE CARDOZO EMPHASIZED THE
POINT AGAIN IN UNITED STATES V. CHICAGO, M., ST. P.&P.R.  CO., 294 U.S.
499, 511, SAYING, "WE MUST KNOW WHAT A DECISION MEANS BEFORE THE DUTY
BECOMES OURS TO SAY WHETHER IT IS RIGHT OR WRONG."  MORE RECENTLY WE
EMPHASIZED THE NECESSITY OF FINDINGS TO RESPONSIBLE JUDICIAL REVIEW: 

"CONGRESS HAS ALSO PROVIDED FOR JUDICIAL REVIEW AS AN ADDITIONAL
ASSURANCE THAT ITS POLICIES BE EXECUTED.  THAT REVIEW CERTAINLY ENTAILS
AN INQUIRY AS TO WHETHER THE COMMISSION HAS EMPLOYED THOSE STATUTORY
STANDARDS.  IF THAT INQUIRY IS HALTED AT THE THRESHOLD BY REASON OF THE
FACT THAT IT IS IMPOSSIBLE TO SAY WHETHER OR NOT THOSE STANDARDS HAVE
BEEN APPLIED, THEN THAT REVIEW HAS INDEED BECOME A PERFUNCTORY
PROCESS.  IF, AS SEEMS LIKELY HERE, AN ERRONEOUS STATUTORY CONSTRUCTION
LIES HIDDEN IN VAGUE FINDINGS, THEN STATUTORY RIGHTS WILL BE WHITTLED
AWAY.  AN INSISTENCE UPON THE FINDINGS WHICH CONGRESS HAS MADE BASIC
AND ESSENTIAL TO THE COMMISSION'S ACTION IS NO INTRUSION INTO THE
ADMINISTRATIVE DOMAIN.  IT IS NO MORE AND NO LESS THAN AN INSISTENCE
UPON THE OBSERVANCE OF THOSE STANDARDS WHICH CONGRESS HAS MADE
'PREREQUISITE TO THE OPERATION OF ITS STATUTORY COMMAND.'  OPP COTTON
MILLS, INC. V. ADMINISTRATOR, 312 U.S. 126, 144.  HENCE THAT
REQUIREMENT IS NOT A MERE FORMAL ONE.  ONLY WHEN THE STATUTORY
STANDARDS HAVE BEEN APPLIED CAN THE QUESTION BE REACHED AS TO WHETHER
THE FINDINGS ARE SUPPORTED BY EVIDENCE."  UNITED STATES V. CAROLINA
CARRIERS CORP., 315 U.S. 475, 489. 

MANY CRUCIAL ISSUES, NECESSARY FOR EVALUATION BY THE COMMISSION, ARE
NOT EVEN EXPOSED IN THIS RECORD, LET ALONE APPRAISED.  THE ABSENCE OF
THESE FINDINGS MAKES JUDICIAL REVIEW IMPOSSIBLE. 

WHAT IS THE NATURE OF THIS CARTEL?  WHAT FINANCIAL INTERESTS CONTROL
IT?  ONLY ONE OF THE LARGEST STOCKHOLDERS IN THE APPLICANTS IS KNOWN. 
THE REMAINING LARGEST STOCKHOLDERS ARE BROKERAGE HOUSES AND SWISS BANKS
HOLDING NOMINAL TITLE FOR THEIR CUSTOMERS.  THE BENEFICIAL OWNERS ARE
UNKNOWN, AND APPARENTLY OF NO CONCERN TO THE COMMISSION.  THE
COMMISSION WAS SPECIFICALLY REQUESTED TO DETERMINE WHO ARE THE
BENEFICIAL OWNERS OF THE STOCK AND WHO WOULD CONTROL THE MERGED
COMPANY.  THE COMMISSION REFUSED TO ACCEDE TO THE REQUEST.  NOR DID THE
COMMISSION CONSIDER IT RELEVANT THAT, THROUGH INTERLOCKING
DIRECTORATES, THE PROPOSED DIRECTORS OF THE MERGED COMPANY ARE
DIRECTORS OF AND INTERESTED IN CORPORATIONS WHICH DEAL WITH THE
RAILROADS OR THAT THE CONTROL OF RAILROADS IS STEADILY BEING
CONCENTRATED IN THE HANDS OF BANKS, INSURANCE COMPANIES, AND OTHER
LARGE FINANCIAL INTERESTS. 

WHAT EFFECT ON OTHER ROADS WITHIN THE AREA SERVED BY THESE CARRIERS
WILL RESULT FROM THE MERGER?  WHAT EFFECT ON RAIL COMPETITION OUTSIDE
THE AREA WILL RESULT?  WHAT WILL BE THE EFFECT ON THE TOWNS SERVED BY
THE TWO ROADS?  WILL SOME DRY UP?  WILL THE COMMUNITY DISLOCATIONS BE
OFFSET BY TANGIBLE GAINS?    NONE OF THESE QUESTIONS IS ANSWERED BY THE
COMMISSION.  YET SEC 5(2)(C) OF THE ACT, WHICH GOVERNS RAILROAD
MERGERS, DEMANDS FINDINGS ON THE VARIOUS INGREDIENTS OF THE PUBLIC
INTEREST. 

CONCEDEDLY, COMMUNITY DISLOCATIONS ARE RELEVANT TO THE PUBLIC
INTEREST.  FOR THE COMMISSION CONSIDERED THEM CRUCIAL IN CONCLUDING
THAT THIS MERGER WOULD NOT BE APPROVED UNLESS THE NEW HAVEN WERE
INCLUDED.  (FN4)  WHAT IS THE NEED OF THE NEW HAVEN?  ITS NEED IS
MIRRORED IN THE ECONOMIC WELL-BEING OF THE NEW ENGLAND STATES.  WITH A
RUNDOWN CARRIER, HOW CAN THEY ATTRACT NEW FACTORIES?  WITHOUT NEW
FACTORIES HOW CAN THEIR EMPLOYMENT NEEDS BE MET? 

IF THESE BASIC COMMUNITY NEEDS ARE RELEVANT IN THE CASE OF THE NEW
HAVEN, WHY ARE THEY NOT RELEVANT WHEN WE TURN TO THE NEEDS OF THE
COMMUNITIES SERVED BY THE OTHER ROADS WHICH ARE ABOUT TO BE MERGED?  WE
ARE TOLD THAT THE THREE MERGERS MENTIONED, INCLUDING THE PRESENT ONE,
WILL RESULT IN MANY COMMUNITIES BEING REDUCED "FROM MAIN LINE TO
SECONDARY LINE STATUS" - A CONDITION "PARTICULARLY TRUE WITH RESPECT TO
THE MERGER BETWEEN THE PENNSYLVANIA AND NEW YORK CENTRAL WHEN MOST OF
THE NEW YORK TO WESTERN GATEWAY TRAFFIC WILL BE ROUTED OVER THE
CENTRAL'S NORTHERN ROUTE."  (FN5) 

THE HEALTHY SMALL TOWNS STRETCHED ALONG THESE RAILROADS MAY BE MORE
IMPORTANT IN TERMS OF THE "PUBLIC INTEREST" THAN THE PROFIT AND LOSS
STATEMENTS OF THE CARRIERS, OR THE MARKET PRICES OF THEIR SECURITIES,
OR THE POWER OF THE SMALL OLIGARCHY THAT WILL SIT AT THE HEAD OF THIS
BEHEMOTH THAT WILL BE TURNED LOOSE.  RAIL MERGERS ARE ONLY ONE FORM OF
REGIONAL PLANNING.  AND WHATEVER THE ATTITUDE OF THE COMMISSION MAY
HAVE BEEN, IT CANNOT IN LIGHT OF SEC 5(2)(C) DELEGATE THAT DUTY TO THE
CARRIERS OR BECOME THEIR RUBBER STAMP OR FAIL TO RELATE TO THE STANDARD
OF THE "PUBLIC INTEREST" THE IMPACT OF THE MERGER ON THE VARIOUS
COMMUNITIES SERVED BY THESE LINES. 

THE COMMISSION IN ITS REPORT GAVE PRACTICALLY ITS ENTIRE
CONSIDERATION TO TWO ASPECTS OF THE MERGER.  THE FIRST DEALT WITH THE
FINANCIAL NEEDS OF THE TWO CARRIERS AND ON THIS THE COMMISSION
CONCLUDED THAT THE NEW COMPANY WOULD HAVE THE FINANCIAL STRENGTH AND
POWER AND RESOURCES TO DEAL WITH ALL THE DIFFICULT CONTINGENCIES IN THE
YEARS AHEAD.  THE SECOND MAIN CONSIDERATION RELATED TO THE PROBLEM OF
COMPETITION WITHIN THE REGION SERVED BY THE TWO ROADS.  THE COMMISSION
INDICATED THAT, ALTHOUGH THERE WILL BE LESS COMPETITION, THE IMPROVED
TRANSPORTATION SERVICE WAS A JUSTIFIED PRICE TO PAY FOR THAT LOSS. 
(FN6) 

YET ONE WHO READS THE REPORT AND REFLECTS ON THESE TWO CONSIDERATIONS
AND THEIR TREATMENT BY THE COMMISSION, CANNOT HELP BUT WONDER WHY THEY
WOULD NOT JUSTIFY ANY CONCEIVABLE MERGER - ALL THE SOUTHERN ROADS AND
EASTERN ROADS - ALL THE EASTERN ROADS AND THE WESTERN ROADS - OR THE
WESTERN AND SOUTHERN AND SOUTHWESTERN ROADS SO THAT WE WOULD END UP
WITH ONE OR TWO RAIL TRANSPORTATION SYSTEMS.   I PUT THE MATTER THAT
WAY BECAUSE THE ARGUMENTS OF THE COMMISSION ARE SO GENERALIZED AND SO
OBVIOUSLY MERE RATIONALIZATIONS THAT THEY COULD EASILY APPLY TO ANY
MERGER; FOR THE THEORY OF ALL PROMOTERS OF MERGERS, AS MR. JUSTICE
BRANDEIS EXPOSED MANY YEARS AGO,  (FN7)  IS TO JUSTIFY MERGERS BY
INCREASED FINANCIAL POWER AND IMPROVED SERVICE. 

THE SIZE AND POWER OF THE NEW COMPANY WILL BE AWESOME, AND SOME SAY
EXCESSIVE.  IT HAS BEEN ESTIMATED THAT THE NEW COMPANY WILL ACCOUNT FOR
51% OF THE ASSETS, 50% OF THE TRACKAGE, 52% OF THE OPERATING REVENUES,
75% OF THE REVENUE PASSENGER MILES, AND ALMOST 53% OF THE RAILROAD
EMPLOYEES IN THE EASTERN AREA.  THE COMBINE WILL BE ALMOST TWICE AS
LARGE AS THE NEXT SYSTEM AND THREE TIMES AS LARGE AS THE THIRD SYSTEM. 
SOME EXPERTS HAVE CONCLUDED THAT THE NEW COMPANY WILL HAVE A DOMINANT
POSITION WITH RESPECT TO THE NEGOTIATION OF RATES AND ITS RELATIONS
WITH THE PUBLIC AND GOVERNMENT, TO THE DETRIMENT OF OTHER RAILROADS AND
OTHER MODES OF COMPETITION.  IT WILL HAVE A VAST AMOUNT OF POWER OVER
THE DECISIONS OF THE ASSOCIATION OF AMERICAN RAILROADS WITH RESPECT TO
RAIL TRANSPORTATION POLICY.  ITS POWER WILL EXTEND WELL BEYOND THE
EASTERN DISTRICT.  THE RAILROAD MERGER PROBLEM, REPORT OF THE
SUBCOMMITTEE ON ANTITRUST AND MONOPOLY OF THE SENATE JUDICIARY
COMMITTEE, 88TH CONG., 1ST SESS., 8-9 (COMM. PRINT 1963). 

THE ROUTES OF THE APPLICANTS PARALLEL EACH OTHER THROUGH THEIR
RESPECTIVE SYSTEMS AND HAVE MANY COMMON POINTS.  THEY SERVE MANY
COMMUNITIES AND AREAS IN COMMON, AND IN SEVERAL ONE OR THE OTHER IS THE
SOLE ROAD; IN OTHERS THE APPLICANTS ALONE COMPETE.  THE COMMISSION
REALIZES THAT THE MERGER WILL ELIMINATE THE EXISTING CHOICE FOR MANY
SHIPPERS AND COMMUNITIES.  IT DOWNGRADES THE SEVERITY OF THE IMPAIRMENT
OF COMPETITION.  AND THE EXAMINERS' REPORT FRANKLY TAKES THE POSITION
THAT INTERRAILROAD COMPETITION IS NOT VERY IMPORTANT BECAUSE THE
INDUSTRY IS CHARACTERIZED BY OLIGOPOLY, RENDERING PRICE COMPETITION
NONEXISTENT AND SERVICE COMPETITION UNIMPORTANT.  (FN8)  THE COMMISSION
THINKS THAT INTERMODAL COMPETITION WILL PREVENT THE NEW COMPANY FROM
MISUSING ITS TREMENDOUS SIZE AND POWER,  (FN9)  EVEN THOUGH IT
RECOGNIZES THAT THE RAILROADS HAVE AN INHERENT ADVANTAGE IN
TRANSPORTATION OF BULK AND LONG-HAUL TRAFFIC.  THE EXAMINERS' REPORT
AND THE COMMISSION'S OPINION SUGGEST THAT COMPETITION AMONG RAILROADS,
RATHER THAN BEING THE NORM, IS TO BE AVOIDED BECAUSE IT IS
"INEFFICIENT."  COMPARING THE COMMISSION'S HANDLING OF THE COMPETITIVE
EFFECTS OF THIS MERGER WITH ITS TREATMENT OF THE COMPETITIVE EFFECTS OF
THE PROPOSED GREAT NORTHERN RAILWAY COMPANY-NORTHERN PACIFIC RAILWAY
MERGER GIVES ONE THE IMPRESSION THAT THE CASES WERE DECIDED BY
DIFFERENT REGULATORY BODIES RATHER THAN THE SAME COMMISSION.  IN THE
GREAT NORTHERN CASE THE COMMISSION WAS SENSITIVE TO THE ANTICOMPETITIVE
EFFECTS OF THE MERGER AND RECOGNIZED THAT COMPETITION IS NECESSARY TO
PROTECT THE PUBLIC INTEREST.  THE COMMISSION ALSO NOTED THAT INTERMODAL
COMPETITION IS NOT ENOUGH TO FURNISH THE IMPETUS FOR LOWER PRICES AND
INCREASED SERVICE, ESPECIALLY WITH RESPECT TO LOW-RATED BULK SHIPMENTS
AND LONG-HAUL TRAFFIC.  SEE GREAT NORTHERN PACIFIC & BURLINGTON LINES,
INC. - MERGER - GREAT NORTHERN R. CO., - I.C.C. - . 

THESE PROBLEMS APPARENTLY BOTHER THE COMMISSION BECAUSE IN SPITE OF
ITS FINDINGS CONCERNING THE IMPROVED FINANCIAL POSITION OF THESE TWO
CARRIERS AND THE IMPROVED TRANSPORTATION SYSTEM EVEN WITH THE LOSS OF
COMPETITION, IT NONETHELESS REFUSED TO APPROVE THE MERGER UNLESS THE
NEW HAVEN ROAD, WHICH IS IN A NOTORIOUSLY DESPERATE CONDITION, IS
INCLUDED.  SO WHAT THE COMMISSION IN EFFECT IS SAYING IS THAT THE
INCREASED FINANCIAL PROWESS OF THE NEW COMPANY AND THE IMPROVED
TRANSPORTATION SERVICE ARE THEMSELVES NOT ENOUGH TO SATISFY SEC 5(2)(C)
OF THE ACT.  WHAT SATISFIES SEC 5(2)(C) OF THE ACT APPARENTLY IS THE
OPPORTUNITY TO SALVAGE THE NEW HAVEN SITUATION.  THIS, I ADMIT, IS A
RELEVANT CONSIDERATION IF THERE IS TO BE A MERGER.  BUT IF SALVAGING
THE NEW HAVEN SO AS TO MAINTAIN THE ECONOMY OF NEW ENGLAND IS RELEVANT,
(FN10)  THEN WHAT ABOUT THE ECONOMY OF THE CITIES AND COUNTIES
STRETCHED ALONG THE LINES OF THESE TWO ROADS WHICH WILL BE MERGED? 
WHAT DEGREE OF OBSOLESCENCE WILL THEY SUFFER? 

RAILROADS ARE CRITICAL FACTORS IN THE PRODUCTION AND DISTRIBUTION OF
GOODS AND IN THE SUPPLY OF MATERIALS.  THEY ARE STILL THE BASIC
TRANSPORTERS OF LOW-COST, BULK GOODS AND LONG-HAUL MERCHANDISE.   THEIR
RATES AND EFFICIENCY OF SERVICE AFFECT INDUSTRIAL COMPETITION. 
ADEQUATE RAILROAD TRANSPORTATION, AT REASONABLE COSTS, IS ESSENTIAL TO
THE ECONOMIC DEVELOPMENT OF ANY REGION OR AREA.   THE CURTAILMENT OF
RAIL TRANSPORTATION IS BOUND TO HAVE AN ADVERSE EFFECT ON THE AREAS AND
COMMUNITIES WHICH RELY ON RAILROADS TO SERVICE INDUSTRY UPON WHICH
THEIR ECONOMIC HEALTH IS DEPENDENT.  MANY COMMUNITIES ALONG THE LINES
ARE DEPENDENT UPON THE EMPLOYMENT FURNISHED BY RAILROADS.  WHAT WILL
THE EFFECT OF THIS MERGER BE ON THESE COMMUNITIES?  WILL INDUSTRY
LOCATE ELSEWHERE BECAUSE OF INADEQUATE RAIL TRANSPORTATION?  WILL THE
FIRMS LOCATED IN THE REGION CEASE TO EXPAND OR MOVE TO OTHER AREAS? 
WILL DECREASED EMPLOYMENT OPPORTUNITIES MEAN THAT THE RESIDENTS OF
THESE TOWNS MUST MOVE ELSEWHERE, THUS CREATING MORE OF THE GHOST TOWNS
WHICH WE ALREADY SEE ALONG MANY OF THE TRUNKLINES?  NONE OF THESE
QUESTIONS IS EVEN CONSIDERED BY THE COMMISSION.  AFTER A VERY
GENERALIZED DISCUSSION, THE COMMISSION CONCLUDED THAT THE MERGER WOULD
NOT SERIOUSLY IMPAIR PENNSYLVANIA'S ECONOMIC HEALTH.  BUT THIS
"FINDING" IS FORESHADOWED BY THE COMMISSION'S EXPRESSED VIEW THAT
RAILROADS HAVE LITTLE IF ANY RESPONSIBILITY IN FURTHERING THE ECONOMIC
DEVELOPMENT OF AN AREA AND BY THE EXAMINERS' POSITION THAT THE
COMMISSION NEED NOT CONSIDER THE EMPLOYMENT, TAX, AND DEVELOPMENTAL
EFFECTS OF THE MERGER.  AND WHAT ABOUT THE OTHER STATES AND COMMUNITIES
SO VITALLY INTERESTED IN THE EFFECTS OF THIS COMBINATION?  THE
COMMISSION'S OPINION IS TOTALLY UNENLIGHTENING.  THE EXAMINERS' REPORT
IS NO BETTER.  IT CONTAINS A LONG LIST OF INTERESTING STATISTICS, ON A
STATE-BY-STATE BASIS, BUT MAKES NO ATTEMPT TO EVALUATE THE EFFECTS OF
THE COMBINATION.  (FN11) COMPARE STANFORD RESEARCH INSTITUTE, SELECTED
IMPACTS OF RAILROAD MERGERS (1965). 

THIS MERGER, LIKE THE ONES PRECEDING IT, APPARENTLY IS A MANIPULATION
BY FINANCIERS AND NOT A PART OF REGIONAL PLANNING WHICH IS THE ULTIMATE
FUNCTION OF THE INTERSTATE COMMERCE COMMISSION.  YET IF THE IMPRIMATUR
OF THE COMMISSION IS TO BE PUT ON THE PLANS OF THE FINANCIERS MUCH MORE
SHOULD BE KNOWN ABOUT THEM.  WHAT INTERESTS WILL CONTROL THE NEW
COMPANY?  HOW POWERFUL WILL THOSE INTERESTS BE?  ARE THE INTERESTS
WHICH WILL CONTROL THE NEW COMPANY ANTAGONISTIC TO THE BASIC INTERESTS
OF THE REGION BEING SERVED?  IS THE COMMISSION PUTTING ITS IMPRIMATUR
ON A NEW FORM OF BANKER-MANAGEMENT OF RAIL CARRIERS THAT WAS SO
DISASTROUS TO THE NEW HAVEN AND THAT MR. JUSTICE BRANDEIS EXPOSED IN
OTHER PEOPLE'S MONEY 129-136 (1933)? 

THE NEW HAVEN RAILROAD IS INDEED AN EXCELLENT EXAMPLE OF MANIPULATION
AT THE HANDS OF FINANCIAL INTERESTS RATHER THAN MANAGEMENT BY RAILROAD
OPERATORS.  MR. JUSTICE BRANDEIS SAID: 

"THE RISE OF THE NEW HAVEN MONOPOLY PRESENTS ANOTHER STRIKING EXAMPLE
OF COMBINATION AS A DEVELOPER OF FINANCIAL CONCENTRATION; AND IT
ILLUSTRATES ALSO THE USE TO WHICH 'LARGE SECURITY ISSUES' ARE PUT. 

"IN 1892, WHEN MR. MORGAN ENTERED THE NEW HAVEN DIRECTORATE, IT WAS A
VERY PROSPEROUS LITTLE RAILROAD WITH CAPITAL LIABILITIES OF $25,000,000
PAYING 10 PER CENT DIVIDENDS, AND OPERATING 508 MILES OF LINE.  BY 1899
THE CAPITALIZATION HAD GROWN TO $80,477,600, BUT THE AGGREGATE MILEAGE
HAD ALSO GROWN (MAINLY THROUGH MERGER OR LEASES OF OTHER LINES) TO
2017.  FOURTEEN YEARS LATER, IN 1913, WHEN MR. MORGAN DIED AND MR.
MELLEN RESIGNED, THE MILEAGE WAS 1997, JUST 20 MILES LESS THAN IN 1899;
BUT THE CAPITAL LIABILITIES HAD INCREASED TO $425,935,000  ...  .
ADDITIONAL ISSUES WERE NEEDED, ALSO, BECAUSE THE COMPANY PAID OUT IN
DIVIDENDS MORE THAN IT EARNED  ...  .  OF THE CAPITAL INCREASE, OVER
$200,000,000 WAS EXPENDED IN THE ACQUISITION OF THE STOCK OR OTHER
SECURITIES OF SOME 121 OTHER RAILROADS, STEAMSHIPS, STREET RAILWAY-,
ELECTRIC-LIGHT-, GAS- AND WATER-COMPANIES.  IT WAS THESE OUTSIDE
PROPERTIES, WHICH MADE NECESSARY THE MUCH DISCUSSED $67,000,000, SIX
PER CENT, BOND ISSUE, AS WELL AS OTHER LARGE AND EXPENSIVE SECURITY
ISSUES.  FOR IN THESE FOURTEEN YEARS THE IMPROVEMENTS ON THE RAILROAD
INCLUDING NEW EQUIPMENT HAVE COST, ON THE AVERAGE, ONLY $10,000,000 A
YEAR."  ID., AT 121-122. 

"THE MOST GRIEVOUS FAULT OF THIS BANKER-MANAGED RAILROAD HAS BEEN ITS
FINANCIAL RECKLESSNESS - A FAULT THAT HAS ALREADY BROUGHT HEAVY LOSSES
TO MANY THOUSANDS OF SMALL INVESTORS THROUGHOUT NEW ENGLAND FOR WHOM
BANKERS ARE SUPPOSED TO BE NATURAL GUARDIANS.  IN A COMMUNITY WHERE ITS
RAILROAD STOCKS HAVE FOR GENERATIONS BEEN DEEMED ABSOLUTELY SAFE
INVESTMENTS, THE PASSING OF THE NEW HAVEN ...  DIVIDENDS AFTER AN
UNBROKEN DIVIDEND RECORD OF GENERATIONS COMES AS A DISASTER. 

"THIS DISASTER IS DUE MAINLY TO ENTERPRISES OUTSIDE THE LEGITIMATE
OPERATION OF THESE RAILROADS; FOR NO RAILROAD HAS EQUALED THE NEW HAVEN
IN THE QUANTITY AND EXTRAVAGANCE OF ITS OUTSIDE ENTERPRISES  ...  . 

"CLOSE SCRUTINY OF THE TRANSACTIONS DISCLOSES NO JUSTIFICATION.  ON
THE CONTRARY, SCRUTINY SERVES ONLY TO MAKE MORE CLEAR THE GRAVITY OF
THE ERRORS COMMITTED.  NOT MERELY WERE RECKLESSLY EXTRAVAGANT
ACQUISITIONS MADE IN MAD PURSUIT OF MONOPOLY; BUT THE FINANCIAL
JUDGMENT, THE FINANCIERING ITSELF, WAS CONSPICUOUSLY BAD."  ID., AT 130
131. 

THE YEARS PASSED, THE NEW HAVEN EMERGED FROM BANKRUPTCY
REORGANIZATION, AND IN 1954 PATRICK B. MCGINNIS WON A PROXY FIGHT FOR
CONTROL OF THE ROAD AND BECAME PRESIDENT.  HIS GROUP OWNED VERY LITTLE
PREFERRED STOCK; BUT IN ORDER TO PAY DIVIDENDS ON THE COMMON, IN WHICH
HE WAS HEAVILY INTERESTED, HE FIRST HAD TO PAY CASH DIVIDENDS ON THE
PREFERRED.  THESE CASH DIVIDENDS WERE PAID OUT IN VERY LARGE AMOUNTS,
THE RECORD SHOWING THE FOLLOWING: 

1954                        $3,440,180    1955
2,457,700 

AT THE SAME TIME, MAINTENANCE OUTLAYS WERE SEVERELY CUT.  TOTAL
OUTLAYS FOR MAINTENANCE OF WAYS AND STRUCTURES DROPPED FROM $27,641,046
IN 1953, TO $19,647,313 IN 1954, TO $18,338,714 IN 1955.  TOTAL
MAINTENANCE OF EQUIPMENT DECREASED FROM $24,306,984 IN 1953, TO
$22,794,715 IN 1954, TO $21,933,318 IN 1955. 

IT IS ESTIMATED THAT THIS CABAL OF FINANCIAL INTERESTS LOST
$7,000,000 OF THE RAILROAD'S MONEY IN 20 MONTHS.  CASH RESERVES
DWINDLED, CURRENT LIABILITIES MOUNTED, AS DID LONG-TERM DEBT.  "IT'S A
STOCK SPECULATION VENTURE INSTEAD OF A RAILROAD BUSINESS" SAID ONE
DIRECTOR.  TIME, JANUARY 30, 1956, P. 76. 

IS THE NEW PENN-CENTRAL COMPANY ALSO TO BE MILKED BY PREDATORY
FINANCE? 

ALTERNATIVELY, IF A REGIME AS BIG AND AS POWERFUL AS THIS IS TO BE
TURNED LOOSE, SHOULD IT STAY IN PRIVATE HANDS?  HOW BIG CAN AN
ENTERPRISE OF THIS CHARACTER GET WITHOUT STEPPING OVER INTO THE PUBLIC
DOMAIN?  "HOW FAR SHOULD THE CONSOLIDATIONS BE ALLOWED TO GO BEFORE
THEY CROSS THE THRESHOLD OF PRIVATE ENTERPRISE AND ENTER THE DOMAIN OF
PRIVATE GOVERNMENT?"  (FN12)  IS THE POWER AND THE CONTROL SO GREAT
THAT WE SHOULD THINK IN TERMS OF PUBLIC OWNERSHIP  (FN13)  RATHER THAN
PRIVATE OWNERSHIP? 

THESE CONSIDERATIONS GO TO THE VERY VITALS OF SEC 5(2)(C) OF THE ACT
AND NONE OF THEM IS ANSWERED.   THEY ARE EMPHASIZED BY THE APPARENT
WORRY IN THE MIND OF THE COMMISSION THAT IN SPITE OF ALL THE ARGUMENTS
FOR THE MERGER THAT IT COULD ADVANCE, IT DECIDED NOT TO APPROVE IT
UNLESS THE NEW HAVEN WAS BAILED OUT.  BAILING OUT THE NEW HAVEN MAY BE
VERY IMPORTANT IN THE PUBLIC INTEREST, AS I HAVE SAID.  BUT IN THE
CONTEXT OF THESE MODERN MERGERS THERE IS THE TERRIBLE SPECTRE THAT THE
FEDERAL GOVERNMENT MAY BE CREATING NEW FRANKENSTEINS WHO WILL BE
RUNNING THE COUNTRY IN A WAY THAT PEOPLE CAN ILL AFFORD. 

THE ALARM IS INCREASED BY THE COMMISSION'S DEFAULT AS RESPECTS THE
OTHER EASTERN RAIL CARRIERS.  THERE ARE THREE SO-CALLED "PROTECTED"
ROADS - ERIE-LACKAWANNA, DELAWARE & HUDSON, AND BOSTON & MAINE.  THE
COMMISSION FOUND THAT THIS MERGER WOULD DESTROY THOSE THREE AS
INDEPENDENT RAILROADS AND PROPOSED THE IMPOSITION OF PROTECTIVE
CONDITIONS.  WHAT THOSE PROTECTIVE CONDITIONS WILL BE WE DO NOT KNOW. 
IF THEY INCLUDE A CAPITAL INDEMNITY, THE "PROTECTED" LINES WILL IN
SUBSTANCE DISAPPEAR FROM THE COMPETITIVE SCHEME.  SHOULD COMPETITION BE
BOUGHT OFF IN THAT MANNER? 

SHOULD THE THREE "PROTECTED" CARRIERS GO INTO THIS PENN-CENTRAL
MERGER AND CREATE A MONOPOLY OF RAIL TRANSPORTATION EAST OF BUFFALO AND
NORTH OF NEW YORK CITY?  THE COMMISSION HAS NEVER MADE ANY EFFORT EVEN
TO CONSIDER WHETHER SUCH AN INCLUSION IN PENN-CENTRAL WOULD BE IN THE
PUBLIC INTEREST. 

THERE ARE SUGGESTIONS THAT PERHAPS THE THREE "PROTECTED" LINES BELONG
IN THE N&W-NICKEL PLATE SYSTEM.  IN THAT MERGER IT WAS RECOGNIZED THAT
E-L WAS A LOGICAL ADDITION BUT THAT INCLUSION ON EQUITABLE TERMS WAS
NOT POSSIBLE BECAUSE OF E-L'S POOR FINANCIAL CONDITION.  324 I.C.C. 1,
22.  THE COMMISSION THEREFORE RESERVED JURISDICTION TO GIVE E-L FIVE
YEARS TO IMPROVE ITS FINANCIAL POSITION TO BECOME ELIGIBLE FOR
INCLUSION IN N&W ON EQUITABLE TERMS.  324 I.C.C., AT 28-29.  (FN14)
THE PENN-CENTRAL MERGER HAS FRUSTRATED THIS PURPOSE BY THREATENING THE
VERY SURVIVAL OF E-L, D&H AND B&M AS INDEPENDENT ROADS.  IF THEY ARE
NOT TO BECOME MEMBERS OF THE PENN-CENTRAL SYSTEM, THEIR ONLY
ALTERNATIVE SEEMS TO BE INCLUSION IN N&W.  THE FAILURE OF THE
COMMISSION TO CONSOLIDATE THESE CASES RAISES THE DISTINCT POSSIBILITY
THAT THE THREE "PROTECTED" CARRIERS MAY NOT BE INCLUDED IN ANY SYSTEM,
AND BEING UNABLE TO WITHSTAND THE PRESSURE OF THE PENN-CENTRAL, WILL BE
DESTROYED.  AS MY BROTHER BRENNAN POINTS OUT, THE INCLUSION OF THESE
ROADS IN THE N&W SYSTEM IS NO LESS RISKY THAN THEIR INCLUSION IN THE
PENN-CENTRAL SYSTEM. 

THE QUESTION WHETHER THE PENN-CENTRAL MERGER IS IN THE "PUBLIC
INTEREST" THEREFORE CANNOT BE RESOLVED UNTIL THE FATE OF THESE THREE
PROTECTED ROADS IS DETERMINED.  THEY TOO HAVE STOCKHOLDERS AND
BONDHOLDERS.  THEY TOO SERVICE SHIPPERS, CONSUMERS, AND COMMUNITIES. 
THEY TOO ARE AN IMPORTANT PART OF THE COMPETITIVE SYSTEM IN THE EAST. 
THE TRUTH IS THAT BEFORE THE COMMISSION CAN EXERCISE AN INFORMED
JUDGMENT ON THE PENN-CENTRAL MERGER, IT MUST DEAL WITH THE SERIOUS
IMPACT WHICH THIS MERGER WILL HAVE ON THE THREE "PROTECTED" CARRIERS. 

THERE ARE ALSO SEVEN UNPROTECTED EASTERN RAIL CARRIERS WHOSE FUTURE
IS IN DOUBT.  THEIR FATE IS EMPHASIZED ANEW BY A NEW MERGER APPLICATION
NOW PENDING BEFORE THE COMMISSION.  AS I HAVE SAID, THE COMMISSION HAS
PROMOTED THREE SYSTEMS IN THE EAST - THE C&O, THE N&W, AND PENN
CENTRAL.  NOW THE C&O AND N&W HAVE APPLIED FOR APPROVAL TO MERGE.  THIS
PROPOSAL WOULD INCLUDE THE THREE "PROTECTED" ROADS I HAVE MENTIONED. 
IT WOULD ALSO INCLUDE CENTRAL OF NEW JERSEY AND READING.  HEARINGS ON
THAT MERGER WILL COMMENCE APRIL 17, 1967.  IF THAT MERGER IS APPROVED,
WE WILL HAVE TWO HUGE EASTERN RAIL CARTELS RATHER THAN THREE. 

WAS THE CREATION OF THE NEW PENN-CENTRAL BEHEMOTH THE REASON FOR THE
DESIRE TO CREATE THIS SECOND ONE? 

WHAT WILL HAPPEN TO BOTH THE THREE "PROTECTED" LINES AND THE SEVEN
UNPROTECTED ONES UNDER A REGIME OF TWO EASTERN CARTELS?  WHERE WILL
THEY BEST FIT TO MAINTAIN AS MUCH OF A COMPETITIVE SYSTEM AS POSSIBLE? 

NO ONE AT PRESENT CAN SAY BECAUSE THE ENTIRE MERGER PROBLEM OF THE
EAST IS NOWHERE NEAR SOLUTION.  UNTIL THE TOTAL PLAN IS KNOWN, AN
INFORMED DECISION IS IMPOSSIBLE.  THE COMMISSION DOES NOT EVEN KNOW
WHAT EFFECT THE INCLUSION OF NH WILL HAVE ON CENTRAL OF NEW JERSEY
WHICH CLAIMS THAT THE INCLUSION OF NH SHOULD NOT BE AUTHORIZED, UNLESS
CNJ IS AT LEAST INCLUDED IN ONE OF THE NEW LARGE SYSTEMS.  UNDER SEC
5(2)(C) THE COMMISSION IS REQUIRED TO CONSIDER "THE EFFECT UPON THE
PUBLIC INTEREST OF THE INCLUSION, OR FAILURE TO INCLUDE, OTHER
RAILROADS IN THE TERRITORY INVOLVED IN THE PROPOSED TRANSACTION."  IN
MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 87, WE STATED THAT
THE COMMISSION HAS THE DUTY "TO CONSIDER THE EFFECT OF THE MERGER ON
COMPETITORS AND ON THE GENERAL COMPETITIVE SITUATION IN THE INDUSTRY." 

ITS DEFAULT IN THAT REGARD IS CONSPICUOUS HERE.  THOSE REQUIRED
FINDINGS CANNOT BE MADE UNTIL A MASTER PLAN OR PLANS FOR THE EAST ARE
DESIGNED AND THE PLACE OF EACH RAIL CARRIER IN THE NEW SYSTEM IS
FINALLY RATIONALIZED AND DETERMINED. 

THE COMMISSION HAS NOW APPROVED THREE PRIVATELY PLANNED MERGERS
EMBRACING OVER 85% OF THE RAILWAY OPERATING REVENUES IN THE ENTIRE
EASTERN RAILROAD MARKET.  THE UNRESOLVED BUT CRUCIAL QUESTION IS
WHETHER THE REMAINING ROADS CAN SURVIVE AS PRESENTLY CONSTITUTED; OR IF
THEY CANNOT, HOW THEY CAN BEST BE RESTRUCTURED TO PROMOTE COMPETITION
AGAINST ONE OR MORE OF THE NEW MERGER SYSTEMS. 

THE CASE MUST BE REMANDED TO THE COMMISSION SO THAT THE COMPETITIVE
REGIME OF THE EAST UNDER TWO OR THREE OR FOUR OR FIVE RAIL CARTELS CAN
BE DETERMINED.  THE IMPACT ON THE COMMUNITIES OF THE REGION MUST BE
DETERMINED.  THE COMPETITIVE BALANCE OF THE SEVERAL COMBINES MUST BE
APPRAISED.  THE POSITION OF EACH RAIL CARRIER IN THE NEW PICTURE MUST
BE ESTABLISHED.  AND THE FINANCIAL HIERARCHY OF THE NEW CARTELS MUST BE
EXPOSED SO THAT THE CENTERS OF CONTROL WILL BE KNOWN.  ONLY WHEN ALL
THESE FACTS ARE KNOWN CAN THE COMMISSION MAKE THE REQUIRED FINDINGS
UNDER SEC 5(2)(C).  ONLY THEN WILL JUDICIAL REVIEW OF A RESPONSIBLE
KIND BE POSSIBLE.  IT IS ONLY WHEN THE REQUIRED FINDINGS ARE MADE THAT
WE WILL BE ABLE TO KNOW WHAT THE COMMISSION'S OPINION REALLY MEANS AND
TO DETERMINE WHETHER THE STATUTORY STANDARDS HAVE BEEN MET.  SEE UNITED
STATES V. CAROLINA CARRIERS CORP., 315 U.S., AT 480-489. 

WE SHOULD SAY HERE WHAT WE SAID IN SECURITIES AND EXCHANGE COMMISSION
V. CHENERY CORP., 318 U.S. 80, 94, "THE COMMISSION'S ACTION CANNOT BE
UPHELD MERELY BECAUSE FINDINGS MIGHT HAVE BEEN MADE AND CONSIDERATIONS
DISCLOSED WHICH WOULD JUSTIFY ITS ORDER AS AN APPROPRIATE SAFEGUARD FOR
THE INTERESTS PROTECTED BY THE ACT.  THERE MUST BE SUCH A RESPONSIBLE
FINDING  ...  .  THERE IS NO SUCH FINDING HERE." 

I WOULD REVERSE THE LOWER COURT AND REMAND THE CASES TO THE
COMMISSION NOT ONLY TO SPELL OUT THE TERMS AND CONDITIONS SPECIFIED BY
THE COURT BUT ALSO TO MAKE THE NECESSARY FINDINGS ON THE REACH AND
MERITS OF THE MERGER AS REQUIRED BY SEC 5(2)(C) OF THE ACT. 

FN1  PETITION OF THE NEW YORK CENTRAL R. CO., DOCKET NO. 33475. 
PRIOR TO THE TRANSPORTATION ACT OF 1940, IT WAS THE DUTY OF THE
COMMISSION UNDER SEC 5 TO PREPARE "A PLAN FOR THE CONSOLIDATION" OF THE
RAILWAY SYSTEMS "INTO A LIMITED NUMBER OF SYSTEMS."  THE 1940 ACT
RELIEVED THE COMMISSION OF THAT DUTY.  H.R. REP. NO. 1217, 76TH CONG.,
1ST SESS., 6.  SEE SCHWABACHER V. UNITED STATES, 334 U.S. 182, 192;
COUNTY OF MARIN V. UNITED STATES, 356 U.S. 412, 417.  BUT THERE IS NO
INDICATION THAT CONGRESS DEPRIVED THE COMMISSION OF THE POWER TO
PROPOSE ONE, THOUGH ITS POWER TO ENFORCE ONE PROPOSED BY IT IN A SEC 77
REORGANIZATION WAS DENIED BY ST. JOE PAPER CO. V. ATLANTIC COAST LINE
R. CO., 347 U.S. 298, BY A NARROW FOUR-TO-THREE VOTE. 

FN2  THE RAILROAD MERGER PROBLEM, REPORT OF THE SUBCOMMITTEE ON
ANTITRUST AND MONOPOLY OF THE SENATE JUDICIARY COMMITTEE, 88TH CONG.,
1ST SESS., 31 (COMM. PRINT 1963). 

FN3  ID., AT 31-32. 

FN4  "  ...  WE FIND THAT THIS MERGER, WITHOUT COMPLETE INCLUSION OF
NH, WOULD NOT BE CONSISTENT WITH THE PUBLIC INTEREST, AND, ACCORDINGLY,
WE WILL REQUIRE ALL THE NEW HAVEN RAILROAD TO BE INCLUDED IN THE
APPLICANTS' TRANSACTION."  327 I.C.C. 475, 524. 

FN5  REPORT, SUPRA, N. 2, AT 14, N. 52. 

FN6  THE REASONS USUALLY ADVANCED IN SUPPORT OF RAILROAD MERGERS ARE:
(1) CONSOLIDATIONS WILL IMPROVE THE AILING FINANCIAL CONDITION OF THE
CONSTITUENTS; (2) CONSOLIDATIONS WILL RESULT IN A REDUCTION OF COST OF
OPERATIONS; (3) CONSOLIDATIONS WILL IMPROVE SERVICE CAPABILITY.  THE
PREMISES UNDERLYING THESE JUSTIFICATIONS HAVE BEEN SERIOUSLY
QUESTIONED.  IT HAS BEEN SUGGESTED THAT THE FINANCIAL CONDITION OF THE
INDUSTRY IS NOT AS POOR AS MERGER APPLICANTS SUGGEST.  SEE, E.G.,
KEYSERLING, THE MOVE TOWARD RAILROAD MERGERS 72-74 (1962); THE RAILROAD
MERGER PROBLEM, REPORT OF SUBCOMMITTEE ON ANTITRUST AND MONOPOLY OF THE
SENATE JUDICIARY COMMITTEE, 88TH CONG., 1ST SESS., 49-54 (COMM. PRINT
1963).  SOME HAVE MAINTAINED THAT THE WAVE OF RAILROAD MERGERS, AND THE
RESULTING CONTRACTION OF PHYSICAL PLANT, WILL IMPAIR RATHER THAN
IMPROVE THE ROADS' FINANCIAL CONDITION AND DAMPEN THE NATION'S ECONOMIC
DEVELOPMENT.  SEE, E.G., KEYSERLING, SUPRA, AT 75-78.  OTHERS HAVE
NOTED THAT THE PRESENT CONDITION OF THE INDUSTRY IS DUE TO A MULTITUDE
OF CAUSES, AND THAT SOLUTIONS MUST STRIKE AT THE ROOTS OF THE PROBLEM
RATHER THAN ACCEPT THE TEMPORARY PALLIATIVE OF MERGER.  SEE, E.G.,
NELSON, RAILROAD TRANSPORTATION AND PUBLIC POLICY 327-435 (1959);
MEYER, PECK, STENASON & ZWICK, THE ECONOMICS OF COMPETITION IN THE
TRANSPORTATION INDUSTRIES 242-273 (1959); NATIONAL TRANSPORTATION
POLICY, S. REP. NO. 445, 87TH CONG., 1ST SESS., 67-71 (1961).  IT HAS
BEEN SUGGESTED THAT MASSIVE ALIGNMENTS MAY RESULT IN SERIOUS
DISECONOMIES, NOT IN THE SAVINGS PREDICTED BY THEIR PROPONENTS.  SEE,
E.G., HEALY, THE EFFECTS OF SCALE IN THE RAILROAD INDUSTRY (1961).  THE
COMMISSION DOES NOT ADDRESS ITSELF TO THESE PROBLEMS. 

FN7  SEE BRANDEIS, THE CURSE OF BIGNESS 185 ET SEQ. (1935). 

FN8  CF. CONANT, RAILROAD MERGERS AND ABANDONMENTS 25-40 (1964);
CONANT, RAILROAD CONSOLIDATIONS AND THE ANTITRUST LAWS, 14 STAN.  L.
REV. 489, 490-495 (1962). 

FN9  IT IS ARGUED THAT INTERMODAL COMPETITION IS NOT SUFFICIENT TO
PROTECT THE PUBLIC INTEREST, THAT INTRAMODAL COMPETITION IS NECESSARY
TO INSURE PROGRESS, EFFICIENCY, AND LOWER PRICES.  ONLY THE FIRMS IN
THE SAME INDUSTRY HAVE THE SAME COST STRUCTURES AND PRODUCTS.  THUS, NO
FIRM HAS A SHELTERED MARKET DUE TO INHERENT ADVANTAGES OVER OTHER
FIRMS, A CONDITION WHICH OBTAINS WHEN COMPETITION IS ONLY INTERMODAL. 
MEYER, PECK, STENASON & ZWICK, THE ECONOMICS OF COMPETITION IN THE
TRANSPORTATION INDUSTRIES 240-241 (1959).  FURTHER, THE POSITION THAT
INTERMODAL COMPETITION IS SUFFICIENT TO PROTECT THE PUBLIC INTEREST
IGNORES THE FACT THAT THE NUMBER OF REGULATED TRUCKING LINES ON
IMPORTANT ROUTES IS RAPIDLY DECREASING, DUE TO ENTRY CONTROL AND
MERGERS IN THE MOTOR CARRIER INDUSTRY.  IF THE PRESENT TREND CONTINUES,
WE MAY SOON SEE A VERY LIMITED NUMBER OF FIRMS - PERHAPS ONE FROM EACH
MODE - SERVING ANY GIVEN ROUTE.  IF THAT HAPPENS, THE POSSIBILITIES OF
OLIGOPOLISTIC LESSENING OF COMPETITION WITHOUT EXPLICIT RATE AND MARKET
AGREEMENTS IS LIKELY.  SEE CHAMBERLIN, THEORY OF MONOPOLISTIC
COMPETITION 46-53 (1956). 

FN10  THE FACTS ARE DETAILED IN THE EXAMINERS' REPORT.  THE PLIGHT OF
RHODE ISLAND IS TYPICAL: 

"N.H. IS THE ONLY CLASS I RAILROAD SERVING THE STATE OF RHODE
ISLAND.  OVER 50 PERCENT OF THE POPULATION IN RHODE ISLAND ARE EMPLOYED
IN THE MANUFACTURING INDUSTRY AND SUCH INDUSTRY IS GREATLY DEPENDENT
UPON RAIL SERVICE PROVIDED BY N.H., PARTICULARLY FOR THE INBOUND
MOVEMENT OF RAW MATERIALS FROM POINTS OUTSIDE OF NEW ENGLAND.  IN 1962,
35,000 CARS WERE CONSIGNED TO OR SHIPPED BY INDUSTRIES LOCATED IN RHODE
ISLAND VIA N.H. FROM WHICH THE LATTER DERIVED $5,000,000 IN REVENUE. 
THREE IMPORTANT NAVAL STATIONS IN RHODE ISLAND ARE LOCATED AT NEWPORT,
QUONSET POINT AND DAVISVILLE, AND IN THE NARRAGANSETT BAY AREA, THE
NAVAL INSTALLATIONS EMPLOY OVER 10,000 CIVILIANS.  IN ADDITION TO
FREIGHT SERVICE, THE N.H. PROVIDES AN IMPORTANT PASSENGER SERVICE IN
THE STATE, AND ESTIMATES INDICATE THAT APPROXIMATELY 1,200,000
PASSENGERS UTILIZING RAIL SERVICE ORIGINATE OR TERMINATE WITHIN THE
CONFINES OF THIS STATE ANNUALLY.  PROVIDENCE, A CITY WITH A POPULATION
OF 200,000 AND METROPOLITAN AREA OF 1,000,000, HAS WATER FACILITIES TO
RECEIVE SHIPMENTS OF BULK COMMODITIES, BUT SINCE WORLD WAR II GENERAL
FREIGHT SERVICE BY WATER TO AND FROM PROVIDENCE HAS BEEN DISCONTINUED. 
"THE GOVERNOR OF RHODE ISLAND EVIDENCED HIS CONCERN AT THE HEARING
THAT THE FAILURE TO INCLUDE THE N.H. IN THE PROPOSED MERGER MAY RESULT
IN A LOSS OF SERVICE PROVIDED BY N.H.  IN THE STATE.  IT WAS HIS BELIEF
THAT WITHOUT SUCH SERVICE, THE STATE WOULD HAVE LITTLE CHANCE OF
ATTRACTING NEW INDUSTRY; THAT EXISTING INDUSTRIES MIGHT RELOCATE THEIR
PLANTS AND THAT WITHOUT RAIL SERVICE, THE FEDERAL GOVERNMENT MAY WELL
DETERMINE TO REDUCE OR TERMINATE EXISTING DEFENSE INSTALLATIONS ...
."  REPORT, AT 278. 

FN11  THE COMMISSION'S OWN BUREAU OF TRANSPORT ECONOMICS AND
STATISTICS HAS RECOGNIZED THE IMPORTANCE OF COMMUNITY DISLOCATIONS IN
EVALUATING THE "PUBLIC INTEREST" ASPECTS OF A PROPOSED MERGER. 

"THE COMMISSION SHOULD CONSIDER THE LOCAL AND REGIONAL IMPACT OF
CONSOLIDATIONS, ECONOMICALLY AND SOCIALLY, AS A SEPARATE CRITERION OR
SUB-CRITERION IN ITS DECISIONS  ...  .  SEPARATE CONSIDERATION OF LOCAL
EFFECTS WOULD HAVE THE MERIT OF AFFORDING OPPORTUNITY FOR THE
COMMISSION TO DISTINGUISH AND DETERMINE THE RELATIVE IMPORTANCE OF SUCH
FACTORS."  RAILROAD CONSOLIDATIONS AND THE PUBLIC INTEREST, STAFF
REPORT OF BUREAU OF TRANSPORT ECONOMICS AND STATISTICS 72 (1962). 

FN12  REPORT, SUPRA, N. 2, AT 80. 

FN13  SOME EXPERTS HAVE SUGGESTED THAT THE TREND TOWARD RAILROAD
CONSOLIDATIONS, WHICH MAY RESULT IN THE NATION'S DEPENDENCE UPON
MAMMOTH COMBINES WITH EXCESSIVE POWER, MAY BE A PRELUDE TO
NATIONALIZATION OF THE INDUSTRY.  SEE, E.G., MEYER, PECK, STENASON &
ZWICK, THE ECONOMICS OF COMPETITION IN THE TRANSPORTATION INDUSTRIES
260 (1959); RAIL MERGER LEGISLATION, HEARINGS BEFORE THE SUBCOMMITTEE
ON ANTITRUST AND MONOPOLY OF THE SENATE JUDICIARY COMMITTEE, 87TH
CONG., 2D SESS., 15 (1962)(TESTIMONY OF PROFESSOR KENT T. HEALY). 

FN14  ON DECEMBER 22, 1966, COMMISSIONER WEBB OF THE ICC RECOMMENDED
THAT THE COMMISSION DIRECT INCLUSION OF THE E-L AND D&H, AND AUTHORIZE
INCLUSION OF THE B&M IN THE N&W. THE COMMISSIONER PERCEPTIVELY NOTED
THAT, "UNFORTUNATELY, THE COMMISSION'S ACTION IN DECIDING THE (PENN
CENTRAL AND N&W-NICKEL PLATE) CASES SEPARATELY HAS TENDED TO BLUR VITAL
ISSUES COMMON TO BOTH PROCEEDINGS."  NORFOLK AND WESTERN R. CO. AND NEW
YORK, C. & ST.L.R. CO., MERGER, FINANCE DOCKET NO. 21510, P. 23. 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE STEWART
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

FOR MORE THAN 45 YEARS IT HAS BEEN THE NATIONAL POLICY, REFLECTED IN
CONGRESSIONAL LEGISLATION, THAT THE RAILROADS OF THIS COUNTRY SHOULD BE
COMBINED INTO A LIMITED NUMBER OF SYSTEMS.  THE POLICY GAINED
ACCEPTANCE IN 1919, WHEN, FOLLOWING WORLD WAR I, THE GOVERNMENT WAS
PLANNING TO RETURN THE RAILROADS TO PRIVATE OWNERSHIP AND THE FRAIL
CONDITION OF MANY OF THE SMALLER ROADS BECAME APPARENT.   THE
TRANSPORTATION ACT OF 1920 DIRECTED THE COMMISSION TO FORMULATE A
NATIONAL MASTER PLAN OF CONSOLIDATION PURSUANT TO WHICH, IT WAS HOPED,
THE RAILROADS WOULD SUBMIT VOLUNTARY PLANS FOR CONSOLIDATION.  THE
COMMISSION DID SO, BUT THE OPPOSITION TO THE PROGRAM WAS OVERWHELMING
AND THE GOAL COULD NOT BE ACHIEVED.  IN 1925 THE COMMISSION ASKED TO BE
RELIEVED OF THE BURDEN OF WORKING OUT A NATIONAL PLAN, BUT UNTIL 1940,
ITS REQUEST DID NOT RESULT IN CONGRESSIONAL ACTION.  IN THAT YEAR,
CONGRESS ENACTED THE TRANSPORTATION ACT OF 1940, WHICH REMAINS IN
EFFECT AND GOVERNS THE PRESENT PROCEEDINGS.  UNDER THAT ACT, AND IN ALL
OF THE YEARS SINCE 1919 OR 1920, THE NATIONAL POLICY OF EFFECTING
CONSOLIDATIONS OF THE RAILROADS INTO A LIMITED NUMBER OF SYSTEMS HAS
BEEN UNCHANGED.  BECAUSE OF THE FAILURE OF THE TECHNIQUE AUTHORIZED BY
THE 1920 ACT, CONGRESS IN THE 1940 LAW ABANDONED THE IDEA OF A FORMAL
NATIONAL PLAN, AND LEFT THE POWER TO INITIATE MERGERS AND
CONSOLIDATIONS IN THE HANDS OF THE CARRIERS.  THE COMMISSION BECAME
JUDGE RATHER THAN ARCHITECT.  SEE GENERALLY, ST. JOE PAPER CO. V.
ATLANTIC COAST LINE R. CO., 347 U.S. 298, 315-321 (APPENDIX)(1954). 

THE 1940 ACT EXPRESSLY PROVIDED THAT TWO OR MORE CARRIERS COULD MERGE
OR OTHERWISE COMBINE MANAGEMENT, OWNERSHIP, AND OPERATION IF THE
APPROVAL OF THE ICC WERE OBTAINED.  THE KEY PROVISION, WHICH BASICALLY
GOVERNS THE PRESENT CASE, IS SEC. 5(2):  "IF THE COMMISSION FINDS THAT,
SUBJECT TO SUCH TERMS AND CONDITIONS AND SUCH MODIFICATIONS AS IT SHALL
FIND TO BE JUST AND REASONABLE, THE PROPOSED TRANSACTION IS WITHIN THE
SCOPE OF SUBDIVISION (A) OF THIS SECTION AND WILL BE CONSISTENT WITH
THE PUBLIC INTEREST, IT SHALL ENTER AN ORDER APPROVING AND AUTHORIZING
SUCH TRANSACTION, UPON THE TERMS AND CONDITIONS, AND WITH THE
MODIFICATIONS, SO FOUND TO BE JUST AND REASONABLE  ...  ."  SEC
5(2)(B).  AMONG THE CONSIDERATIONS TO WHICH THE COMMISSION IS TO GIVE
WEIGHT ARE:  "(1) THE EFFECT OF THE PROPOSED TRANSACTION UPON ADEQUATE
TRANSPORTATION SERVICE TO THE PUBLIC; (2) THE EFFECT UPON THE PUBLIC
INTEREST OF THE INCLUSION, OR FAILURE TO INCLUDE, OTHER RAILROADS IN
THE TERRITORY INVOLVED IN THE PROPOSED TRANSACTION; (3) THE TOTAL FIXED
CHARGES RESULTING FROM THE PROPOSED TRANSACTION; AND (4) THE INTEREST
OF THE CARRIER EMPLOYEES AFFECTED."  SEC 5(2)(C).  JURISDICTION "TO
ENFORCE, ENJOIN, SET ASIDE, ANNUL OR SUSPEND, IN WHOLE OR IN ANY PART,
ANY ORDER" OF THE ICC, IS VESTED IN THE DISTRICT COURTS BY 28 U.S.C.
SEC 1336.  IT IS CLEAR, BEYOND ARGUMENT - ONE WOULD CONFIDENTLY ASSERT
PRIOR TO TODAY'S DECISION - THAT WHETHER PARTICULAR RAILROAD MERGERS
SERVE THE PUBLIC INTEREST, INCLUDING THE ANTITRUST INGREDIENT, IS TO BE
JUDGED BY THE STANDARDS OF THE TRANSPORTATION ACT OF 1940 AS APPLIED
INITIALLY BY THE ICC, AND NOT BY THIS COURT. 

UNDER THE 1940 ACT, THE COMMISSION'S JUDGMENT IS NOT TO BE GOVERNED
BY THE ANTITRUST LAWS.  AS THIS COURT SAID IN MCLEAN TRUCKING CO. V.
UNITED STATES, 321 U.S. 67, AT 84-85 (1944), THERE IS "LITTLE DOUBT
THAT THE COMMISSION IS NOT TO MEASURE PROPOSALS FOR ALL-RAIL  ...
CONSOLIDATIONS BY THE STANDARDS OF THE ANTI-TRUST LAWS."  IN THE LAST
TERM OF COURT, A DECISION OF A THREE-JUDGE DISTRICT COURT SETTING ASIDE
ICC APPROVAL OF A MERGER WAS REVERSED BY THIS COURT IN A PER CURIAM
DECISION, QUOTING THE ABOVE STATEMENT FROM MCLEAN TRUCKING, BECAUSE THE
DISTRICT COURT APPLIED ANTITRUST STANDARDS TO OVERTURN THE ICC
DECISION.  SEABOARD AIR LINE R. CO. V. UNITED STATES, 382 U.S. 154
(1965).  IN THAT CASE, THE COURT SAID:  "IT MATTERS NOT THAT THE MERGER
MIGHT OTHERWISE VIOLATE THE ANTITRUST LAWS; THE COMMISSION HAS BEEN
AUTHORIZED BY THE CONGRESS TO APPROVE THE MERGER OF RAILROADS IF IT
MAKES ADEQUATE FINDINGS IN ACCORDANCE WITH THE CRITERIA QUOTED ABOVE
THAT SUCH A MERGER WOULD BE 'CONSISTENT WITH THE PUBLIC INTEREST.'" 
382 U.S., AT 156-157. 

UNTIL RECENTLY, DESPITE THE PROVISIONS OF THE 1940 ACT, LITTLE WAS
ACCOMPLISHED TO EFFECTUATE THE NATIONAL POLICY OF COMBINING ROADS INTO
A FEW MAJOR SYSTEMS.  THE CONFLICTS AND RIVALRIES, THE OVERLAPS OF
CONFLICTING NEEDS AND AMBITIONS ARE SO GREAT THAT THE TASK IS
FORMIDABLE AND, FROM TIME TO TIME, HAS APPEARED HOPELESS.  FINALLY, IN
1962, THE ICC APPROVED THE C&O'S ACQUISITION OF CONTROL OF THE B&O.
(FN1)  IN 1964, IT APPROVED THE COMBINATION OF THE N&W AND THE NICKEL
PLATE.  (FN2) AND, AFTER MORE THAN 10 YEARS OF ELABORATE CORPORATE
MANEUVERING AND NEGOTIATING, IN 1962 THE PENNSYLVANIA AND THE NEW YORK
CENTRAL RAILROADS FILED WITH THE ICC THEIR PROPOSAL TO MERGE.  LENGTHY
ADMINISTRATIVE PROCEEDINGS FOLLOWED, AND IT WAS NOT UNTIL APRIL OF 1966
THAT THE ICC RENDERED ITS FINAL DECISION, APPROVING THE MERGER SUBJECT
TO CONDITIONS.  PENNSYLVANIA R. CO. - MERGER - NEW YORK CENTRAL R. CO.,
327 I.C.C. 475.  IT MODIFIED THOSE CONDITIONS ON SEPTEMBER 16, 1966. 
328 I.C.C. 304.  IF THE PENN-CENTRAL MERGER BECOMES EFFECTIVE, THE
RESULT WILL BE THREE LARGE SYSTEMS, EACH OPERATING IN VARIOUS AND
SOMETIMES OVERLAPPING PARTS OF THE NORTHEAST, MIDDLE ATLANTIC AND
MIDWESTERN STATES.  THE COMMISSION'S OPINIONS IN THE THREE CASES
INDICATE ITS VIEW THAT THE CONSEQUENCES, AT LONG LAST, WILL BE A
SUBSTANTIAL MEASURE OF PROGRESS TOWARDS THE GOAL SUCCESSIVELY ANNOUNCED
IN THE TRANSPORTATION LAWS OF 1920 AND 1940. 

THE PENN-CENTRAL MERGER, AS APPROVED BY THE ICC, WAS ATTACKED BY
VARIOUS PARTIES AND A TEMPORARY INJUNCTION WAS SOUGHT IN THE SOUTHERN
DISTRICT OF NEW YORK.  THE COMPLAINANTS INCLUDED A NUMBER OF RAILROADS,
SEVERAL AFFECTED COMMUNITIES AND ONE MILTON SHAPP.  AS THE MATTER COMES
TO THIS COURT, (FN3)  THE ONLY PLAINTIFFS WHO COMPLAIN ABOUT THE MERGER
ITSELF ARE SHAPP AND THE CITY OF SCRANTON, PENNSYLVANIA.  SHAPP, WHOSE
RATHER SHAKY STANDING TO PARTICIPATE IN THESE APPEALS IS PREDICATED
UPON HIS PARTICIPATION BEFORE THE COMMISSION AND THE BARE CIRCUMSTANCE
THAT HE IS A SHAREHOLDER IN THE PENNSYLVANIA RAILROAD AND A CITIZEN OF
PENNSYLVANIA, ASSERTS HERE, AS HE DID IN THE DISTRICT COURT, THAT IN
CALCULATING THE NECESSITY FOR THE MERGER AND THE BENEFITS TO BE DERIVED
THEREFROM, THE ICC RELIED UPON AN UNWARRANTEDLY PESSIMISTIC FORECAST AS
TO RAILROAD PROSPECTS, AND THAT AS A RESULT IT HAS APPROVED A
TRANSACTION WHICH WILL HAVE SERIOUS ANTICOMPETITIVE EFFECTS IN THE EAST
AND WILL INFLICT ECONOMIC HARM UPON THE COMMONWEALTH OF PENNSYLVANIA. 
A SINGLE COMMUNITY IN PENNSYLVANIA, THE CITY OF SCRANTON, CONCURS WITH
SHAPP'S ANALYSIS AND ARGUES IN ADDITION THAT THE MERGER AND EXPECTED
INCLUSION OF THE E-L, D&H AND CNJ IN ONE OR ANOTHER SYSTEM WILL REDUCE
THE QUANTITY OF RAIL SERVICE NOW AVAILABLE TO SCRANTON, WHICH IS
PRESENTLY SERVED BY THOSE THREE SMALLER ROADS.  THE UNITED STATES,
WHICH QUESTIONS THE CORRECTNESS OF THE PROCEDURE USED BY THE COMMISSION
IN PROTECTING THE E-L, D&H AND B&M, DOES NOT CHALLENGE THE MERGER
ITSELF.  INDEED, THE SOLICITOR GENERAL HAS REPRESENTED TO THE COURT
THAT "THE AGENCIES OF THE EXECUTIVE BRANCH THAT HAVE SUBSTANTIVE
RESPONSIBILITIES FOR THE FORMULATION OF ECONOMIC AND TRANSPORTATION
POLICY BELIEVE THAT THE MERGER IS IN THE PUBLIC INTEREST AND THAT ITS
CONSUMMATION SHOULD BE PROMPTLY EFFECTED."  (FN4) 

NONE OF THE RAILROADS OBJECTS TO THE MERGER ITSELF AS UNLAWFUL OR
UNFAIR.  NONE OF THE AFFECTED STATES OBJECTS.  THE COMMONWEALTH OF
PENNSYLVANIA WHICH HAD AT ONE POINT OPPOSED THE MERGER WITHDREW ITS
OPPOSITION, AND NOW URGES APPROVAL OF THE ICC ORDER.  VIGOROUS ATTACK,
HOWEVER, WAS AND IS LAUNCHED UPON THE ICC'S ORDER BY VARIOUS OF THE
RAILROADS BECAUSE OF PROVISIONS IN THE ORDER ADDRESSED TO THE
COMPLICATIONS ARISING FROM THE SITUATION OF THREE SMALLER ROADS, THE E
L, THE D&H, AND THE B&M. 

THE THREE-JUDGE DISTRICT COURT, IN AN OPINION BY CIRCUIT JUDGE
FRIENDLY FOR HIMSELF AND DISTRICT JUDGE LEVET, DECLINED TO ISSUE A
TEMPORARY INJUNCTION TO ENJOIN THE MERGER, JUDGE WEINFELD DISSENTING. 
259 F. SUPP. 964.  THIS COURT GRANTED A STAY AND EXPEDITED THE CASE FOR
CONSIDERATION.  THE COURT TODAY SETS ASIDE THE ICC'S ORDER.  IT
EXPRESSLY RESERVES ANY RULING UPON THE ISSUE OF THE MERITS OF THE
MERGER.  IT BASES ITS DECISION ENTIRELY UPON THE ALLEGED FAILURE OF THE
COMMISSION TO MAKE ADEQUATE PROVISION FOR THE THREE SMALLER ROADS PRIOR
TO AUTHORIZING CONSUMMATION.  IN A SEPARATE OPINION, MR. JUSTICE
DOUGLAS CONCURS, BUT CONCLUDES THAT HE WOULD ALSO HOLD THE MERGER
ITSELF ILLEGAL AND THE COMMISSION'S APPROVAL UNLAWFUL FOR THIS REASON. 
I RESPECTFULLY DISSENT.  I BELIEVE WE SHOULD AFFIRM THE ORDER OF THE
DISTRICT COURT UPHOLDING THE COMMISSION'S ACTION. 

CERTAINLY, THERE IS NO TOLERABLE BASIS FOR OUR ATTACKING THE MERGER
ON ITS MERITS.  TO DO SO WOULD BE TO SUBSTITUTE OUR JUDGMENT FOR THAT
OF THE COMMISSION ON GROUNDS WHICH, TO SAY THE LEAST, ARE SPECULATIVE
AND BASED UPON THE CLAIMED SUPERIORITY OF COMPETING ECONOMIC
CONSIDERATIONS.  WE ARE NOT AT LIBERTY TO DO THIS, AND IF WE WERE FREE
TO DO SO, IT WOULD REQUIRE A HIGH DEGREE OF INTREPIDITY ON SUCH A BASIS
TO OVERTURN A RESULT WHICH, EVEN IF WE ASSUME ITS IMPERFECTIONS,
GENERALLY INCORPORATES A SIGNIFICANT STEP IN A DIRECTION WHICH NATIONAL
POLICY HAS SOUGHT FOR SEVERAL GENERATIONS.  THIS IS CONGRESS'
RESPONSIBILITY, AND THE TASK, NOT OF THE COURTS, BUT OF CONGRESS'
DESIGNATED INSTRUMENTALITY, THE ICC.  THE NATIONAL NEED TO REFURBISH
AND REVITALIZE RAIL COMMUNICATIONS IS URGENT - SOME SAY OF DESPERATE
URGENCY.  THE ICC HAS FOUND THAT THE MERGER HERE WILL RESULT IN
ECONOMIES AND EFFICIENCIES AGGREGATING $80,000,000 ANNUALLY BY THE
EIGHTH YEAR, WHICH IT ASSERTS WILL ENABLE THE ROADS TO EFFECT THE BADLY
NEEDED MODERNIZATION OF THEIR FACILITIES.  THIS MAY BE A STEP IN THE
WRONG DIRECTION, AS MY BROTHER DOUGLAS ARGUES; BUT WE HAVE NEITHER THE
FRANCHISE TO SAY SO NOR THE POWER TO DO BETTER. 

THE PROBLEM PRESENTED WITH RESPECT TO THE THREE SMALLER ROADS ASSUMES
A DIFFERENT FORM.  HERE, IT IS URGED THAT THE COMMISSION SPECIFICALLY
FAILED TO CARRY OUT ITS STATUTORY DUTY AND THAT THE MERGER SHOULD NOT
BE CONSUMMATED UNTIL ITS TASK IS COMPLETE.  THE FACTS ARE AS FOLLOWS: 

1.  THE THREE ROADS, THE COMMISSION HAS FOUND, CANNOT SURVIVE WITHOUT
INCLUSION IN ONE OF THE LARGE, INTEGRATED SYSTEMS.  THE COMMISSION HAS
ASSUMED, AS I SHALL DESCRIBE, THAT THEY WILL BE INCLUDED IN EITHER THE
N&W OR THE PENN-CENTRAL SYSTEMS.  THE THREE ROADS FILED APPLICATIONS IN
BOTH THE N&W-NICKEL PLATE AND THE PENN-CENTRAL PROCEEDINGS, FOR
INCLUSION IN THE RESULTING SYSTEM.  THEY HAVE INDICATED THEIR
PREFERENCE FOR INCLUSION IN THE FORMER.  THE COMMISSION APPROVED THE
N&W-NICKEL PLATE MERGER AND ITS ORDER HAS BECOME FINAL.  IT DID NOT,
HOWEVER, PASS UPON THE APPLICATION OF THE THREE ROADS FOR INCLUSION. 
ON THE OTHER HAND, IT MADE EFFECTIVE ASSURANCE FOR THE SUBSEQUENT
DETERMINATION OF THE ISSUE AND THE EFFECTUATION OF THE RESULT.  ITS
ORDER OF APPROVAL PROVIDED THAT THE ICC WOULD RETAIN JURISDICTION FOR
FIVE YEARS TO REQUIRE THE N&W TO INCLUDE THE THREE ROADS ON TERMS THAT
THE ICC WOULD ITSELF PRESCRIBE IN THE ABSENCE OF AGREEMENT, AND IT
REQUIRED THE IRREVOCABLE CONSENT OF N&W TO SUCH ORDER AS A CONDITION OF
CONSUMMATING THE MERGER.  THE N&W GAVE ITS CONSENT.  ON DECEMBER 22,
1966, PURSUANT TO THE RESERVED JURISDICTION, COMMISSIONER WEBB OF THE
ICC RECOMMENDED AUTHORIZING INCLUSION OF THE THREE ROADS IN THE
SYSTEM.  (FN5)  IT IS ANTICIPATED THAT A COMMISSION ORDER WILL BE
ENTERED BY JULY 1 OR AUGUST 1, 1967.  WHEN THIS ORDER BECOMES FINAL, IF
IT PROVIDES FOR INCLUSION OF THE THREE ROADS IN THE N&W SYSTEM, THAT
WILL SETTLE THEIR ULTIMATE FATE AND WILL TERMINATE THE SIGNIFICANCE OF
THE CONDITIONS TO WHICH THE COURT HEREIN OBJECTS AND WHICH HAVE
RESULTED IN SETTING ASIDE THE ICC'S ORDER.  IT MUST BE REMEMBERED,
HOWEVER, THAT THE COMMISSION'S ORDER WILL BE SUBJECT TO JUDICIAL
REVIEW; AND IF THE PAST IS A GUIDE TO PREDICTION, THE RESULTING
PROCEEDINGS WILL BE LONG, COMPLEX, AND BITTER.  IN SHORT, NO ONE CAN
SAY WHETHER THE THREE ROADS WILL FIND THEIR ULTIMATE HOME DURING THIS
CALENDAR YEAR OR THE NEXT.  (FN6) 

2.  IN THE PRESENT PROCEEDING, THE ICC DENIED THE REQUEST OF THE
THREE ROADS FOR INCLUSION IN THE PENN-CENTRAL SYSTEM, BUT IT PROVIDED
THAT IF THEY WERE NOT INCLUDED IN THE N&W SYSTEM, THEY MIGHT RESUBMIT
THE MATTER BY SUPPLEMENTAL PETITION.  IT IS ESSENTIAL TO NOTE THAT NO
ATTACK IS MADE IN THIS PROCEEDING ON THESE PROVISIONS RELATING TO THE
ULTIMATE FATE OF THE THREE ROADS. 

3. THE ICC CONCLUDED THAT THE THREE ROADS REQUIRED SOME INTERIM
PROTECTION BECAUSE "WHEN THE VARIOUS CONSOLIDATIONS OF YARDS AND
EQUIPMENT AND THE NEW THROUGH ROUTES CONTEMPLATED BY THE APPLICANTS ARE
EFFECTUATED, A SUBSTANTIAL AMOUNT OF TRAFFIC COULD BE DIVERTED FROM E
L, D&H AND B&M."  ACCORDINGLY, IT DECIDED TO IMPOSE CERTAIN CONDITIONS
WHICH I SHALL DESCRIBE, AND IT REQUIRED OF THE APPLICANTS "THEIR
ACCEPTANCE OF AND ACTIVE COOPERATION IN THE IMPLEMENTATION OF
CONDITIONS" PENDING ULTIMATE DECISION AS TO THE INCLUSION OF THE THREE
ROADS IN A MAJOR SYSTEM.  IN THIS CONNECTION, THE COMMISSION MADE THE
STATEMENT THAT HAS PROVIDED THE BASIS OF ATTACK.  IT SAID:  "IT IS
DOUBTFUL THAT, WITHOUT INCLUSION IN A MAJOR SYSTEM, THESE THREE
CARRIERS COULD WITHSTAND THE COMPETITION OF THE APPLICANTS MERGED, AND,
UNLESS THEY ARE PROTECTED DURING THE PERIOD NECESSARY TO DETERMINE
THEIR FUTURE, WE WOULD NOT AUTHORIZE CONSUMMATION AT THIS TIME, EVEN
THOUGH APPROVING THE MERGER."  327 I.C.C., AT 531-532. 

4.  THE CONDITIONS CONSISTED OF MEASURES FOR (1) TRAFFIC MAINTENANCE,
BY TEMPORARY PRESERVATION OF PRESENT PRACTICES AND PATTERNS; (2)
INDEMNITY PAYMENTS TO COVER LOSSES DUE TO DIVERSION OF TRAFFIC, IF ANY;
AND (3) PROCEDURES TO DETERMINE DISPUTES UNDER THESE CONDITIONS.  THE
COMMISSION SPECIFICALLY PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE
ABOVE, THE APPLICANTS AND THE THREE PROTECTED CARRIERS COULD ENTER INTO
AN AGREEMENT FOR ALTERNATE PROTECTIONS "WHICH SHALL SUPERSEDE THE
PROTECTION PROVIDED BY SUCH SECTIONS" IF NOT OTHERWISE VIOLATIVE OF
LAW.  327 I.C.C., AT 563, APP. G. 

5.  THE THREE PROTECTED CARRIERS COMPLAINED THAT THE CONDITIONS WERE
NOT ADEQUATE FOR THEIR PROTECTION AND THEY SPECIFICALLY DEMANDED, IN
ADDITION TO IMPROVEMENT OF THE TRAFFIC AND INDEMNITY PROVISIONS, AN
INDEMNIFICATION AGAINST CAPITAL IMPAIRMENT.  ON THE OTHER HAND, A
NUMBER OF OTHER ROADS ATTACKED APPENDIX G ON THE GROUND THAT THE
INDEMNITY PROVISIONS WOULD INDUCE MANIPULATION AND DIVERSION OF TRAFFIC
BY BOTH PENN-CENTRAL AND THE THREE ROADS WHICH WOULD BE HARMFUL TO
THEM.  ALL OF THEM COMPLAINED THAT THERE HAD BEEN NO HEARING, AND THE
NONPROTECTED COMPLAINANTS ALLEGED THAT THE INDEMNITY CONDITIONS REALLY
AMOUNTED TO A POOLING ARRANGEMENT WHICH SHOULD HAVE BEEN BUT WAS NOT
CONSIDERED UNDER SEC 5(1) OF THE ACT. 

6.  ON SEPTEMBER 16, AFTER THE PRESENT SUIT HAD BEEN FILED, THE
COMMISSION GRANTED THE VARIOUS PETITIONS TO RECONSIDER APPENDIX G.
PENDING HEARING AND DECISION ON RECONSIDERATION, IT RESCINDED THE
INDEMNITY PROVISIONS BUT LEFT IN EFFECT THE TRAFFIC CONDITIONS SUBJECT
TO WHATEVER MODIFICATIONS MIGHT BE MADE.  328 I.C.C. 304.  THE
COMMISSION SAID THAT "SINCE THE APPLICANTS HAVE INDICATED WILLINGNESS
TO ACCEPT POST-MERGER MODIFICATION OF THE PROTECTIVE CONDITIONS, THEY
MAY PROCEED WITH CONSUMMATION OF THE MERGER UPON OUR AUTHORIZATION
THEREOF BECOMING EFFECTIVE.  SUCH CONSUMMATION WILL CONSTITUTE
IRREVOCABLE ASSENT ON THE PART OF THE APPLICANTS TO ANY MODIFICATION
RESULTING FROM THE FURTHER CONSIDERATION HEREIN DESCRIBED AND ORDERED
AND WHICH IS FOUND TO BE JUST AND REASONABLE; AS WELL AS IRREVOCABLE
AGREEMENT BY THE APPLICANTS TO COMPLY FULLY WITH THE CONDITIONS AS
MODIFIED."   ON OCTOBER 31, PURSUANT TO THIS RULING, HEARINGS WERE
COMMENCED ON THE INTERIM PROTECTIVE CONDITIONS. 

IT IS THE RULING THAT THE MERGER MAY BE CONSUMMATED IN THESE
CIRCUMSTANCES THAT THE COURT FINDS OBJECTIONABLE AND ON THE BASIS OF
WHICH THE COURT HALTS THIS TRANSACTION WHICH IS CONCEDEDLY OF MAJOR
IMPORTANCE TO THE NATION.  THE COURT REASONS THAT THE COMMISSION'S
ORDER AS IT NOW STANDS FAILS TO IMPLEMENT ITS FINDINGS WITH RESPECT TO
THE THREE SMALLER ROADS, AND UNLESS AND UNTIL IT DOES SO THE MERGER MAY
NOT BE CONSUMMATED. 

FUNDAMENTALLY, I SUBMIT, THIS IS BASED UPON A MISCONCEPTION OF THE
ICC'S FINDINGS.  THE COMMISSION FIRMLY AND CLEARLY HELD THAT, AS A
CONDITION TO CONSUMMATION OF THE MERGER, IT WAS NECESSARY TO ASSURE
THAT THE THREE ROADS WOULD BE PROTECTED PENDING THEIR INCLUSION IN ONE
OF THE LARGER SYSTEMS.   BUT IT IS CLEAR THAT THE COMMISSION DID NOT
FIND THAT IT WAS NECESSARY TO FIX THE TERMS OF SUCH PROTECTION PRIOR TO
CONSUMMATION OF THE MERGER.  ON THE CONTRARY, THE COMMISSION PRESCRIBED
TRAFFIC AND INDEMNITY PROVISIONS IN WHAT MUST, IN ALL FAIRNESS, BE
REGARDED AS A TENTATIVE SETTING. 

THE PRESCRIBED CONDITIONS WERE, AS THE COURT BELOW NOTED,
"UNPRECEDENTED IN THEIR SEVERITY IN THE HISTORY OF RAILROAD MERGERS." 
259 F. SUPP., AT 969.  THEY HAD NOT BEEN FOCUSED OR DEFINED PRIOR TO
THE COMMISSION'S REPORT FOR THE APPARENT REASON, UNDERSTANDABLE TO
ANYONE FAMILIAR WITH THE ADMINISTRATIVE PROCESS, THAT THEY MUST HAVE
BEEN CRYSTALLIZED IN THE POST-ARGUMENT DELIBERATIONS OF THE COMMISSION
AND ITS STAFF.  THEY HAD NOT BEEN INCLUDED IN THE HEARING EXAMINERS'
REPORT.  THE CONDITIONS ARE COMPLEX.  INTERIM PROTECTION OF THE THREE
ROADS AGAINST POSSIBLE TRAFFIC DIVERSION AND RESULTING FINANCIAL LOSS
DEPENDS UPON FUTURE EVENTS WHICH ARE UNKNOWN AND LARGELY UNKNOWABLE.  A
VAST REALIGNMENT OF THE SORT INVOLVED HERE ALWAYS HAS ELEMENTS OF THE
UNIQUE, AND ONLY A DOCTRINAIRE APPROACH, SEPARATED BY THE MILES THAT
LIE BETWEEN THE QUIET OF THEORETICAL CONDEMNATION IN THIS COURT AND THE
PRESSURES OF REALISTIC PROBLEMS IN THE ADMINISTRATIVE AGENCY, CAN
EXPLAIN THIS COURT'S READINESS TO INSIST THAT AN UNKNOWN AND UNKNOWABLE
SOLUTION BE PRESCRIBED IN ADVANCE.  SOLUTIONS CAN BE FOUND,
PRESCRIPTIONS CAN BE WRITTEN, TO IMPLEMENT THE COMMISSION'S
DETERMINATION THAT ADEQUATE INTERIM PROTECTION MUST BE FURNISHED TO THE
THREE ROADS.  THE COMMISSION'S INSISTENCE UPON SUCH PROTECTION IS
BEYOND DISPUTE.  ITS DEFERRAL, IN PART, OF THE PRESCRIPTION OF SPECIFIC
MEASURES TO EFFECT THIS IS AT LEAST UNDERSTANDABLE IN LIGHT OF THE
INHERENT DIFFICULTY OF THE PROBLEM.  THIS IS CLEAR:  (1) APPENDIX G, AS
I HAVE NOTED, IN EFFECT INVITED THE PARTIES TO WORK OUT THEIR OWN
AGREEMENT IN SUBSTITUTION FOR THE COMMISSION'S FORMULA; (2) THE
COMMISSION FURTHER DEMONSTRATED ITS AWARENESS THAT ONLY TIME AND
EXPERIENCE WOULD PERFECT THE INTERIM CONDITIONS BY ITS ADMONITION TO
PENN-CENTRAL TO COMPLY NOT MERELY WITH THE LETTER BUT WITH THE SPIRIT
OF THE PROTECTIVE MANDATE; (3) THE COMMISSION, COMMENDABLY, I SUGGEST,
ORDERED A HEARING AND RECONSIDERATION OF THE CONDITIONS AFTER
LITIGATION COMMENCED AND THE NEED THEREFOR BECAME APPARENT.  THE
COMMISSION, AS I HAVE NOTED, LEFT IN EFFECT THE TRAFFIC CONDITIONS,
SUBJECT TO MODIFICATION, AND PROVIDED THAT WHATEVER INDEMNITY
PROVISIONS MIGHT BE SPECIFIED WOULD BE RETROACTIVE TO THE DATE OF
CONSUMMATION OF THE MERGER.  WITH THE ASSURANCE THAT PENN-CENTRAL WOULD
ACCEPT WHATEVER MIGHT BE ORDERED IN THESE RESPECTS,  (FN7)  IT
AUTHORIZED CONSUMMATION OF THE MERGER. 

THE COURT HOLDS THAT THIS ORDER APPROVING IMMEDIATE CONSUMMATION OF
THE MERGER IS "INSUPPORTABLE," NOT BECAUSE THE COMMISSION LACKED POWER,
BUT BECAUSE THE COMMISSION DEFERRED FULL IMPLEMENTATION OF ITS OWN
FINDINGS THAT IT WAS INDISPENSABLE THAT INTERIM PROTECTION BE PROVIDED
THE THREE ROADS.  THE COURT CONCEDES THAT THE COMMISSION MAY RETAIN
JURISDICTION FOR SOME PURPOSES.  (FN8)  IT DOES NOT "FIND IT NECESSARY
TO PASS UPON THE QUESTION OF NAKED POWER IN THE COMMISSION TO DO WHAT
HAS BEEN DONE HERE."  ITS DRASTIC ACTION IS INDUCED SOLELY BECAUSE OF
THE COMMISSION'S DECISION TO EFFECT INTERIM PROTECTION OF THE THREE
ROADS - TO WHICH IT AND PENN-CENTRAL ARE FULLY COMMITTED - BY
PRESCRIBING ONLY TRAFFIC CONDITIONS PRESENTLY AND TO PROCEED WITH
DELIBERATION TO WORK OUT THE CONTROVERSIAL AND COMPLEX INDEMNIFICATION
PROVISIONS.  I AGREE WITH THE COMMISSION THAT, IN VIEW OF THE COMPLETE
CONSENT OF THE APPLICANTS TO ACCEPT THE TERMS ULTIMATELY FIXED, THERE
IS NO REASON TO DEFER THE CONSUMMATION OF THE MERGER UNTIL THIS IS
DONE.  IN ANY EVENT, THE CHOICE OF PROCEDURE THAT THE COMMISSION HAS
MADE IS NOT UNREASONABLE; AND THIS COURT SHOULD NOT UPSET A DECISION OF
THE MAGNITUDE INVOLVED IN THIS MERGER EXCEPT FOR SIGNIFICANT REASONS OF
SUBSTANCE.  (FN9) 

THERE IS NO REASON OF SUBSTANCE FOR THE COURT'S ACTION; THERE IS NO
SUBSTANTIVE VALUE THAT IS IMPAIRED OR LOST BY PROCEEDING AS THE
COMMISSION HAS ORDERED. 

(1)  AS THE COURT FOUND, THERE HAS BEEN NO OBJECTION TO THE SUBSTANCE
OF THE TRAFFIC CONDITIONS WHICH WILL CONTINUE IN EFFECT, EXCEPT
SUGGESTIONS AS TO DETAILS.  INDEMNIFICATION PROVISIONS WILL BE MADE
RETROACTIVE TO THE DATE OF CONSUMMATION OF THE MERGER AND WILL
THEREFORE BE AS FULLY EFFECTIVE AS IF ORIGINALLY PRESCRIBED. 

(2)  EFFECTIVE JUDICIAL REVIEW OF THE ULTIMATE CONDITIONS WILL BE
AVAILABLE.  IF THEY FAIL IN ANY RESPECT FULLY AND LAWFULLY TO IMPLEMENT
THE COMMISSION'S FINDING AS TO THE NECESSITY FOR INTERIM PROTECTION OF
THE THREE ROADS, THEY WILL PRESUMABLY BE MODIFIED.  IT IS, WITH ALL
RESPECT, NONSENSE TO SAY THAT THE ONLY REMEDY WOULD BE TO "UNSCRAMBLE
THE CONSOLIDATION."  AT ISSUE ARE THE INDEMNITY TERMS.  THESE ARE THE
ONLY ONES THAT HAVE NOT BEEN PRESCRIBED.  THEY INVOLVE ONLY THE
GUARANTY OF PAYMENT OF MONEY ON WHATEVER FORMULA THE COMMISSION MAY
PRESCRIBE IN ITS OWN MOTION OR AFTER DIRECTION BY THE COURTS.  AN ORDER
OF THE COMMISSION OR THE COURTS TO MAKE SUCH PAYMENT CAN BE FULLY AND
EASILY IMPLEMENTED BY CONVENTIONAL PROCESSES.  THE TRAFFIC CONDITIONS
ARE TO BE EFFECTIVE IMMEDIATELY.  THEY ARE NOT UNDER SUBSTANTIAL
ATTACK.  IF THEY ARE MODIFIED IN THIS HEARING, THAT IS NOTHING MORE
THAN AN EXERCISE OF THE POWER TO MODIFY ITS ORDER WHICH THE COURT
CONCEDES TO BE WITHIN THE COMMISSION'S POWER UNDER SEC 5(9) OF THE
ACT.  CF. UNITED STATES V. ROCK ISLAND MOTOR TRANSIT CO., 340 U.S. 419
(1951). 

ON THE OTHER HAND, THE COURT'S ORDER, WHICH I SUBMIT IS INSUPPORTABLE
AS A MATTER OF LAW AND OF SOUND ADMINISTRATION OF THE PRINCIPLES OF
JUDICIAL REVIEW OF DECISIONS OF ADMINISTRATIVE AGENCIES, WILL HAVE
UNFORTUNATE CONSEQUENCES.  I DO NOT KNOW, AND I SUBMIT THE COURT CANNOT
KNOW, JUST HOW LONG IT WILL TAKE TO SATISFY THE COURT'S RIGID
PRESCRIPTION THAT THE INTERIM PROTECTIVE PROVISIONS MUST BE SETTLED. 
THE COURT SAYS THAT IT WILL ENTAIL "A VERY SHORT DELAY"; THAT THE THREE
ROADS WILL BE INCLUDED IN THE N&W OR THAT THE COMMISSION'S INTERIM
ORDER WILL BE PERFECTED WITH EXPEDITION.  I VIEW THIS PREDICTION WITH
PROFOUND SKEPTICISM.  TOO MANY INTERESTS HAVE TOO MUCH TO GAIN FROM
OBSTRUCTION AND DELAY; AND THE MAZE OF ADMINISTRATIVE PROCEEDING AND
JUDICIAL REVIEW IS NOT INHOSPITABLE TO INGENIOUS COUNSEL BENT ON
DELAY.  THE HISTORY OF ICC PROCEEDINGS IS A SOURCE BOOK FOR DILATORY
TACTICS AND A MONUMENT TO THE SUCCESSFUL BURIAL OF GOOD PROJECTS BY
OVER-ELABORATE PROCEDURES MANIPULATED BY EXPERTS IN THE ART. MEANWHILE,
NATIONAL POLICY CONTINUES UNFULFILLED; URGENT NATIONAL NEEDS FOR
IMPROVED LONG-HAUL AND LOCAL RAIL SERVICE ARE IMPEDED; THE DESPERATE
EROSION OF THE NEW HAVEN CONTINUES AT A RAPID PACE; AND THE PUBLIC AND
COMMUNITIES URGENTLY IN NEED OF IMPROVED RAIL SERVICE CONTINUE TO
SUFFER. 

IF THIS RESULT WERE COMPELLED BY LAW - IF THE COURT'S DECISION RESTED
UPON FAULT OF SUBSTANCE - THE PRACTICAL CONSEQUENCE WOULD HAVE TO BE
SUFFERED WITH GRACE.  BUT THAT IS NOT SO.  THE COMMISSION INSISTED THAT
THE THREE SMALLER ROADS HAD TO RECEIVE INTERIM PROTECTION AND REQUIRED
THE APPLICANTS TO AGREE TO THIS AS A CONDITION OF CONSUMMATION OF THE
MERGER.  IT HAS NOT MODIFIED THIS.  IT HAS NOT FAILED TO IMPLEMENT IT.
ON THE CONTRARY, IT HAS - I THINK, COMMENDABLY - EMBARKED UPON A
PROCEDURE WHICH, WHILE ASSURING THAT THE PROTECTIONS WILL BE
FORTHCOMING, SUBJECT TO JUDICIAL REVIEW, MAKES POSSIBLE THE CAREFUL AND
DELIBERATE WORKING-OUT OF ITS TERMS AND AT THE SAME TIME AVOIDS
DISRUPTING THE TIMETABLE OF THE MERGER.  IF WE WERE TO COMMENT UPON IT,
WE SHOULD, I THINK, BE COMPELLED TO APPLAUD THE UNUSUAL FLEXIBILITY OF
METHOD WHICH IT DEMONSTRATES AND WHICH HAS NOT ALWAYS ORNAMENTED
COMMISSION PRACTICES.  BUT WE SHOULD NOT INDULGE IN THIS KIND OF SECOND
GUESSING.  THE PLAIN CONCLUSION IS THAT THE COMMISSION'S ORDER DOES NOT
VIOLATE ANY PRINCIPLE OF LAW.  IT DOES NOT FAIL TO IMPLEMENT THE
COMMISSION'S FINDINGS.  IT MERELY PROVIDES FOR THE ACCOMPLISHMENT IN
STAGES OF AN OBJECTIVE FIRMLY STATED TO WHICH IT AND THE APPLICANTS ARE
FULLY COMMITTED.  THIS IS WELL WITHIN ITS POWERS, AND WE SHOULD
AFFIRM.    ADDENDUM: 

MR. JUSTICE BRENNAN'S CONCURRING OPINION REQUIRES THESE ADDITIONAL
COMMENTS.  HE CONCEDES THAT "THIS MERGER MAY WELL BE IN THE PUBLIC
INTEREST," BUT HE CONCLUDES THAT THE COMMISSION'S ORDER APPROVING AND
AUTHORIZING CONSUMMATION OF THE MERGER MUST BE SET ASIDE BECAUSE THE
COMMISSION HAS NOT COMPLETED THE JOB OF PROVIDING FOR THE FUTURE OF THE
THREE ROADS:  THE E-L, D&H AND B&M.  MR. JUSTICE BRENNAN DOES NOT
CONTEND THAT, AS AN ABSTRACT MATTER, SETTLEMENT OF THE ULTIMATE DESTINY
OF THESE ROADS IS A NECESSARY PRECONDITION TO APPROVAL OF THE PENN
CENTRAL MERGER.  HE RECOGNIZES THAT SUCH A CONTENTION WOULD BE CONTRARY
TO STATUTE, PRECEDENT, AND PRACTICAL SENSE.  THE COMMISSION CLEARLY HAS
POWER TO RESERVE FOR THE FUTURE SOME PROBLEMS INCIDENT TO A MERGER. 
FACED - AS THIS COURT IS NOT - WITH THE URGENT NEED OF COPING WITH THE
REALITIES OF LIFE, THE COMMISSION MUST FREQUENTLY CONTENT ITSELF WITH
LESS THAN PERFECTION.  ACCORDINGLY, MR. JUSTICE BRENNAN AGREES THAT
"THE ACT VESTS WIDE DISCRETION IN THE AGENCY TO ALLOW A MERGER TO GO
FORWARD WHILE CONDITIONS AS TO INCLUSION ARE WORKED OUT."  HE ARGUES,
HOWEVER, THAT IN THIS SPECIFIC SITUATION, THE FAILURE TO SETTLE, BY
DEFINITIVE ORDER, THE ULTIMATE FATE OF THE THREE ROADS IS ERROR WHICH
REQUIRES THAT THE ORDER APPROVING THE PENN-CENTRAL MERGER BE SET
ASIDE.  IN MY JUDGMENT, HIS ANALYSIS LAYS BARE THE TORTUOUS SPECULATION
UPON WHICH THE COURT'S NULLIFICATION OF THIS MERGER IS BASED. 

MR. JUSTICE BRENNAN'S ARGUMENT, IN NET EFFECT, IS THAT WHEN THE
COMMISSION REALLY COMES TO GRIPS WITH THE PROBLEM OF INCLUDING THE
ROADS IN ONE OF THE GREAT SYSTEMS, ONE THING WILL LEAD TO ANOTHER AND
THE EVENTUAL RESULT WILL BE THAT THE PENN-CENTRAL MERGER - TO WHICH HE
DOES NOT OTHERWISE OBJECT - WILL BECOME CONTRARY TO THE PUBLIC
INTEREST.  WHEN THE COMMISSION REACHES THIS POINT, IT WILL EITHER HAVE
TO REFRAIN FROM INCLUDING THE THREE ROADS IN EITHER THE N&W OR THE PENN
CENTRAL SYSTEMS, WHICH WOULD BE CONTRARY TO ITS FINDINGS, OR IT WILL
HAVE TO GRIT ITS TEETH AND GO AHEAD EVEN THOUGH INCLUSION OF THE THREE
ROADS IN ONE OF THE SYSTEMS WOULD MAKE THE PENN-CENTRAL MERGER CONTRARY
TO THE PUBLIC INTEREST.  I AGREE THAT EITHER OF THESE WOULD BE MOST
UNFORTUNATE.  MY DIFFICULTY STEMS FROM THE FACT THAT THERE IS NO BASIS
FOR THE FORECAST OF CATASTROPHE.  WITH ALL RESPECT, MY BROTHER
BRENNAN'S JOURNEY FROM THE PRESENT TO THIS HORRIFYING FUTURE REQUIRES A
TRIP THROUGH OUTER SPACE WHICH I CANNOT MAKE, AND IN WHICH I DO NOT
BELIEVE WE SHOULD INDULGE.  THERE SHOULD BE MORE THAN ROCKETRY TO
JUSTIFY OUR NULLIFICATION OF ACTION OF THIS NATIONAL IMPORTANCE WHICH
HAS BEEN AUTHORIZED BY THE AGENCY WITH THE HEAVY RESPONSIBILITY FOR
REPAIRING OUR DEPLORABLE NATIONAL RAILROAD NETWORK. 

MR. JUSTICE BRENNAN SAYS THAT "ALLEGATIONS ARE MADE" BY THE
DEPARTMENT OF JUSTICE AND NUMEROUS OTHER PARTIES THAT INCLUSION OF THE
THREE ROADS IN EITHER OF THE MAJOR SYSTEMS "MIGHT NOT BE POSSIBLE
CONSISTENT WITH THE PUBLIC INTEREST OR UPON EQUITABLE TERMS."  NOW THE
FACT THAT ALLEGATIONS ARE MADE IS INTERESTING, BUT LESS THAN
DISPOSITIVE; SO MR. JUSTICE BRENNAN, AFTER POINTING OUT THAT THERE
SEEMS TO BE GENERAL AGREEMENT THAT THE THREE ROADS SHOULD BE INCLUDED
IN THE N&W, SAYS THAT "THERE IS A SIGNIFICANT POSSIBILITY, GIVEN THE
PRESENT STATE OF CIRCUMSTANCES, THAT INCLUSION IN N&W MIGHT BE
UNATTAINABLE OR ATTAINABLE ONLY AT THE PRICE OF RENDERING THE PENN
CENTRAL MERGER AGAINST THE PUBLIC INTEREST, AND THAT, EVEN IF INCLUSION
COULD BE ACCOMPLISHED CONSISTENT WITH THE PUBLIC INTEREST, IT MIGHT BE
IMPOSSIBLE TO WORK OUT EQUITABLE TERMS." 

NOW, A "SIGNIFICANT POSSIBILITY" IS NOT, I THINK, A CONVENTIONAL
BASIS FOR JUDICIAL NULLIFICATION OF AN ADMINISTRATIVE ORDER.  SEE
ILLINOIS C.R. CO. V. NORFOLK & W.R. CO., 385 U.S. 57, 69 (1966), AND
CASES THERE CITED.  IT IS TRUE, AS MR. JUSTICE BRENNAN ARGUES, THAT
THERE ARE PROBLEMS AND DIFFICULTIES ABOUT INCLUSION OF THE ROADS IN ONE
OF THE SYSTEMS, LARGELY STEMMING FROM THE POOR FINANCIAL CONDITION OF
TWO OF THE THREE ROADS.  THESE DIFFICULTIES THEMSELVES ARGUE FOR PROMPT
INCLUSION OF THE ROADS IN ONE OF THE GREAT SYSTEMS, A RESULT WHICH THE
THREE ROADS' FIERCE STRUGGLE FOR THE LAST OUNCE OF FLESH MAY
PARADOXICALLY DEFEAT.  (FN10)  BUT JUDICIAL PESSIMISM, IF IT IS TO LEAD
TO ADMINISTRATIVE NULLIFICATION, SHOULD HAVE A MORE SUBSTANTIAL BASIS
THAN IS PRESENT HERE.  THERE IS, IN FACT, NO BASIS HERE FOR ASSUMING
THAT THE ROADS WILL NOT BE INCLUDED IN THE N&W; OR THAT THE TERMS AND
CONDITIONS WILL NOT BE EQUITABLE; OR THAT THE RESULT WILL MAKE THE PENN
CENTRAL MERGER CONTRARY TO THE PUBLIC INTEREST - OR THAT, IF ANY OF
THESE HAPPENED AT THE COMMISSION'S HANDS, CORRECTIVE MEASURES COULD NOT
BE MANDATED BY THE COURTS. 

THE N&W, AS MR. JUSTICE BRENNAN RECOGNIZES, HAS "IRREVOCABLY AGREED
TO INCLUDE THESE THREE PETITIONERS IN THEIR SYSTEM UPON TERMS  ...  ,
IF NECESSARY, PRESCRIBED BY THE COMMISSION, PROVIDED SUCH INCLUSION IS
FOUND TO BE CONSISTENT WITH THE PUBLIC INTEREST."  327 I.C.C., AT 529. 
THERE IS NO REASON FOR US TO DOUBT THAT THE COMMISSION WILL IN FACT
COMPLETE THE TASK OF WORKING OUT TERMS AND CONDITIONS OF INCLUSION.  IF
DEEMED NECESSARY, WE COULD ORDER THAT THE DISTRICT COURT RETAIN
JURISDICTION SO THAT THE COURTS COULD SPEEDILY ACCOMPLISH THE RESULT IF
THE COMMISSION SHOULD FAIL. 

BUT MR. JUSTICE BRENNAN DARKLY ARGUES THAT THE PRESSURE OF THE
PROBLEM OF INCLUDING THE THREE ROADS WILL RESULT IN CREATING A "VIRTUAL
RAIL MONOPOLY IN SOME SOUTHEASTERN STATES."  HE ATTACHES A MAP TO PROVE
IT.  THIS WILL COME ABOUT, HE SAYS, BECAUSE WHEN THE COMMISSION REALLY
GETS DOWN TO THE INCLUSION OF THESE THREE ROADS IN THE N&W, THE
FINANCIAL BURDENS WILL IRRESISTIBLY IMPEL THE COMMISSION TO ALLOW THE
N&W AND C&O TO AFFILIATE, WITH MONOPOLISTIC EFFECT, IN ORDER TO BEAR
THE WEIGHT OF THE INCLUDED ROADS.  THE NET RESULT, THEREFORE, HE
ARGUES, IS "THAT PENN-CENTRAL WILL INCREASE THE LIKELIHOOD OF, AND MAY
ACTUALLY CAUSE, AN AFFILIATION OF N&W AND C&O."  HE POINTS OUT THAT THE
COMMISSION DID NOT CONSIDER THIS POSSIBILITY.  THAT'S TRUE.  BUT THE
REMOTENESS OF THE CONSEQUENCE THAT MR. JUSTICE BRENNAN DIVULGES IS SUCH
THAT NEITHER WE NOR THE COMMISSION CAN, IN ALL REASON, BE REQUIRED TO
CONSIDER IT.  I RESPECTFULLY DISAGREE WITH MY BROTHER BRENNAN THAT
"ONLY BY CONSIDERING THIS POSSIBILITY COULD THE ICC FULFILL ITS
OBLIGATION TO CONSIDER ALL THE RELEVANT FACTORS BEFORE APPROVING THE
MERGER."  I DO NOT BELIEVE THAT WE CAN REQUIRE OF THE COMMISSION THE
RICH AND RESOURCEFUL IMAGINATION TO FORESEE THE CONSEQUENCE THAT THE
RELATIVELY MINOR PROBLEM PRESENTED BY THE THREE ROADS WILL PRECIPITATE
A VAST MONOPOLY, NOR, IF THE COMMISSIONERS WERE SO GIFTED AS TO
ENVISAGE SUCH A RESULT, COULD WE EXPECT A RESPONSE FROM THEM AS TO THE
PROBLEM PRESENTED OTHER THAN A SOLEMN OATH THAT THEY WILL NOT BUILD A
CITY TO HOUSE A MOUSE.  IN ANY EVENT, IF THEY YIELDED VIRTUE AND
JUDGMENT IN RESPONSE TO THE URGENCIES OF THESE THREE ROADS, THE COURTS
COULD ALWAYS OVERRULE THEM.  (FN11)  THAT THE COURTS WOULD NOT BE
TIMID, RELUCTANT, OR DEFERENTIAL TO INTERVENE IN THE COMMISSION'S
DECISION IS A PROPOSITION WHICH TODAY'S DECISION ESTABLISHES BEYOND
DISPUTE. 

I REPEAT:  GIVEN THE POINT CONCEDED BY MY BROTHER BRENNAN THAT THE
COMMISSION HAS POWER TO PERMIT THE MERGER TO GO FORWARD WHILE THE
PROBLEMS INCIDENT TO INCLUSION OF THESE THREE ROADS IN ONE OF THE GREAT
SYSTEMS ARE BEING WORKED OUT, THERE IS NO BASIS FOR REPUDIATING THE
EXERCISE OF THAT POWER IN THIS CASE. 

IT IS NOT NECESSARY TO ANALYZE MR. JUSTICE BRENNAN'S DETAILED ATTACK
UPON THE COMMISSION'S INTERIM PROTECTIVE CONDITIONS FOR THE THREE
ROADS.  THESE ARE BEING RECONSIDERED BY THE COMMISSION, AND ARE HARDLY
RIPE FOR JUDICIAL REVIEW.  THE UNDERLYING QUESTION IS, AGAIN, WHETHER
THE COMMISSION MAY ALLOW THE "MERGER TO GO FORWARD WHILE CONDITIONS
...  ARE WORKED OUT."  MR. JUSTICE BRENNAN CONTENDS THAT "THE ACT VESTS
WIDE DISCRETION IN THE AGENCY" TO DO THIS, AND I CONFESS BAFFLEMENT AS
TO WHY THIS DISCRETION IS NOT BROAD ENOUGH TO REQUIRE US TO TOLERATE
THE COMMISSION'S ACTION HERE. 

THE BASIC FACT OF THE MATTER, I SUBMIT, IS THAT THIS IS NOT A CASE IN
WHICH THE COMMISSION HAS REFUSED OR FAILED TO CONSIDER, OR TO MAKE
FINDINGS OR PROVIDE FOR EFFECTIVE MEASURES WITH RESPECT TO A MATERIAL
ASPECT OF A MERGER.  IT GAVE ELABORATE, METICULOUS CONSIDERATION TO THE
PROBLEM PRESENTED BY THE THREE ROADS.  IT MADE FINDINGS WITH RESPECT TO
THEIR NEEDS WHICH APPARENTLY EVOKED AN ENTHUSIASTIC RESPONSE - PERHAPS
EXCESSIVELY ENTHUSIASTIC - IN THIS COURT.  IT WORKED OUT PROVISIONS FOR
ASSURING THE INTERIM PROTECTION OF THE ROADS AND THEIR EVENTUAL
DESTINY.  IT MADE CLEAR, EFFECTIVE PROVISION FOR ACCOMPLISHING THE
RESULT FOUND NECESSARY:  THAT THE THREE ROADS ULTIMATELY BE INCLUDED IN
ONE OF THE MAJOR SYSTEMS AND THAT MEANWHILE THEY RECEIVE TRAFFIC AND
FINANCIAL PROTECTION AND BENEFITS.  IT DID THIS BY REQUIRING ADVANCE
CONSENT AND RESERVING JURISDICTION.  THE INTEGRITY AND ADEQUACY OF THE
PROCESS MAY BE SUBJECTED TO COURT REVIEW. 

I CANNOT ESCAPE THE CONCLUSION THAT THE DIMENSIONS OF THIS MERGER
HAVE INDUCED A MAJOR DEPARTURE FROM THE ESTABLISHED AND SOUND
PRINCIPLES GOVERNING JUDICIAL REVIEW OF ADMINISTRATIVE JUDGMENTS IN
COMPLEX ECONOMIC SITUATIONS.  IT IS, OF COURSE, POSSIBLE, PERHAPS
PROBABLE, THAT THE PARTIES AFFECTED BY THIS MERGER, INCLUDING THE THREE
ROADS, AIDED BY THE SHOCK OF THE COURT'S ACTION HEREIN, WILL FIND A WAY
TO AVERT THE NATIONAL MISCHIEF OF ABORTING THE PENN-CENTRAL MERGER AND
OF AVOIDING THE CONTINUATION OF THE DEPLORABLE CONDITION OF TWO OF THE
THREE ROADS WHICH WILL PERSIST IF THE PENN-CENTRAL MERGER IS NOT
EFFECTUATED.  BUT I THINK, WITH ALL RESPECT, THAT THE COURT'S DECISION
IN THIS CASE IS WRONG IN PRINCIPLE AND UNFORTUNATE IN CONSEQUENCE.  IT
IS A REVERSION TO THE DAYS OF JUDICIAL NEGATION OF GOVERNMENTAL ACTION
IN THE ECONOMIC SPHERE.  WE SHOULD BE CONSERVATIVE AND RESTRAINED, I
THINK, WHERE ALL WE CAN SAY IS NO. THE PROBLEMS OF THE ADMINISTRATIVE
AGENCY DESERVE MORE UNDERSTANDING AND ITS EFFORTS TO FIND SOLUTIONS ARE
ENTITLED TO MORE RESPECT THAN THE COURT HAS TODAY SHOWN.  THE COURTS
MAY BE THE PRINCIPAL GUARDIANS OF THE LIBERTIES OF THE PEOPLE.  THEY
ARE NOT THE CHIEF ADMINISTRATORS OF ITS ECONOMIC DESTINY. 

FN1  317 I.C.C. 261, SUSTAINED SUB NOM. BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYEES V. UNITED STATES, 221 F. SUPP. 19 (D.C.E.D. MICH.),
AFF'D, PER CURIAM, 375 U.S. 216 (1963). 

FN2  324 I.C.C. 1. 

FN3  OTHER COMMUNITIES ALIGNED THEMSELVES WITH THE CITY OF SCRANTON
IN THE DISTRICT COURT, BUT HAVE EITHER DECLINED TO SEEK REVIEW OR, AS
IN THE CASE OF THE TOWNSHIP OF WEEHAWKEN, HAVE ABANDONED THEIR APPEAL. 

FN4  MEMORANDUM FOR THE UNITED STATES IN NOS. 642, 680, 691, P. 21. 

FN5  HE RECOMMENDED THAT THE COMMISSION "AUTHORIZE AND DIRECT"
INCLUSION OF THE E-L AND D&H, AND "AUTHORIZE" INCLUSION OF THE B&M.
NORFOLK AND WESTERN R. CO. AND NEW YORK, C. & ST. L.R. CO., MERGER,
FINANCE DOCKET NO. 21510. 

FN6  THE COURT BELOW SPECULATED THAT THE ICC SHOULD FINISH ITS WORK
ON THE MATTER DURING CALENDAR 1967.  259 F. SUPP., AT 969, N. 4. 

FN7  THE COMMISSION DID NOT, HOWEVER, FORECLOSE THE APPLICANTS FROM
SEEKING JUDICIAL REVIEW OF ANY DECISION WHICH MIGHT BE MADE AS TO
CAPITAL INDEMNIFICATION.  328 I.C.C., AT 329. 

FN8  SEE, E.G., UNITED STATES V. ROCK ISLAND MOTOR TRANSIT CO., 340
U.S. 419 (1951)(TO KEEP MOTOR ROUTES OF RAILROAD "AUXILIARY OR
SUPPLEMENTAL"); NEW YORK CENTRAL UNIFICATION, 154 I.C.C. 489
(1929)(INCLUSION OF SHORT LINES); CHICAGO & N.W. RY. CO. MERGER, 261
I.C.C. 672 (1946)(EMPLOYEE PROTECTIVE PROVISIONS). 

FN9  "IN THE ABSENCE OF A CLEAR LEGAL PRESCRIPTION, A REASONABLE
PROCEDURAL DECISION SHOULD WITHSTAND JUDICIAL INTERFERENCE."  JAFFE,
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 567 (1965). 

FN10  JUDGE FRIENDLY REFERRED TO "THE JOCKEYING OF THESE ROADS AND OF
THE THREE PLAINTIFFS IN THE C&O, B&O, AND N&W ACTIONS FOR PRICE AND
POSITION IN RESPECT OF OTHER MERGERS - WHICH, DESPITE ALL THE WORDS, IS
WHAT WE SUSPECT THESE ACTIONS TO BE MOSTLY ABOUT."  259 F. SUPP., AT
981. 

FN11  I DO NOT INTEND TO INDICATE ANY OPINION AS TO THE MERITS OF A
POSSIBLE N&W-C&O AFFILIATION. 
..END :












BOSTICK V. SOUTH CAROLINA 386 U.S. 479 


NO. 647.  ARGUED MARCH 20, 1967.  - DECIDED MARCH 27, 1967.  - 247 S.C.
22, 145 S.E.2D 439, REVERSED. 


BOSTICK V. SOUTH CAROLINA ET AL. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

PER CURIAM. 

THE JUDGMENT OF THE SUPREME COURT OF SOUTH CAROLINA IS REVERSED. 
WHITUS V. GEORGIA, 385 U.S. 545 (1967). 
..END :

















COLONIAL TRANSPORTATION V. UNITED STATES 386 U.S. 480 


NO. 894.  DECIDED MARCH 27, 1967.  - 255 F. SUPP. 999, AFFIRMED. 


COLONIAL REFRIGERATED TRANSPORTATION, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA. 

PER CURIAM 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















ROGERS V. DENVER 386 U.S. 480 


NO. 998.  DECIDED MARCH 27, 1967.  - COLO. - , 419 P.2D 648, APPEAL
DISMISSED. 


ROGERS ET AL. V. CITY AND COUNTY OF DENVER ET AL. 

APPEAL FROM THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















BERMAN V. NEW YORK 386 U.S. 481 


NO. 1019.  DECIDED MARCH 27, 1967.  - 18 N.Y.2D 774, 221 N.E.2D 564,
APPEAL DISMISSED AND CERTIORARI DENIED. 


BERMAN V. BOARD OF ELECTIONS, CITY OF NEW YORK, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 

TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A
WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














SHANNON V. SEQUEECHI 386 U.S. 481 


NO. 1198, MISC.  DECIDED MARCH 27, 1967.  - 365 F.2D 827, APPEAL
DISMISSED AND CERTIORARI DENIED. 


SHANNON V. SEQUEECHI, SHERIFF, ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















CROSS V. MUNICIPAL COURT 386 U.S. 482 


NO. 1246, MISC.  DECIDED MARCH 27, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


CROSS ET AL. V. PALO ALTO-MOUNTAIN VIEW MUNICIPAL COURT ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

THE PRAYER FOR OTHER RELIEF IS ALSO DENIED. 
..END :













MANGUS V. A.C.E. FREIGHT 386 U.S. 482 


NO. 1260, MISC.  DECIDED MARCH 27, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


MANGUS V. A.C.E. FREIGHT, INC., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF OHIO FOR FURTHER CONSIDERATION
IN LIGHT OF VACA V. SIPES, ANTE, P. 171. 
..END :















CONNOR V. JOHNSON 386 U.S. 483 


NO. 999.  DECIDED MARCH 27, 1967.  - 265 F. SUPP. 492, AFFIRMED. 


CONNOR ET AL. V. JOHNSON, GOVERNOR OF MISSISSIPPI, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JUSRIDICTION
SHOULD BE NOTED AND THE CASE SET DOWN FOR ARGUMENT. 
..END :















COMMISSIONER V. STIDGER 386 U.S. 287 


NO. 173.  ARGUED JANUARY 16, 1967.  - DECIDED MARCH 20, 1967.  - 355
F.2D 294, REVERSED. 


EXPENDITURES FOR MEALS BY A MILITARY OFFICER STATIONED AT A PERMANENT
DUTY POST TO WHICH HIS DEPENDENTS WERE PROHIBITED FROM ACCOMPANYING HIM
HELD NOT TO CONSTITUTE DEDUCTIBLE "TRAVELING EXPENSES  ...  INCURRED
WHILE AWAY FROM HOME" WITHIN THE MEANING OF SEC. 162(A)(2) OF THE
INTERNAL REVENUE CODE OF 1954.  A MILITARY TAXPAYER'S PERMANENT DUTY
POST IS HIS "HOME" WITHIN THE MEANING OF THE STATUTE.  PP. 289-296. 

COMMISSIONER OF INTERNAL REVENUE V. STIDGER ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE REQUIRED TO DETERMINE WHETHER, UNDER THE 1954
INTERNAL REVENUE CODE, EXPENDITURES FOR MEALS BY A MILITARY OFFICER
STATIONED AT A POST TO WHICH HIS DEPENDENTS WERE PROHIBITED FROM
ACCOMPANYING HIM WERE DEDUCTIBLE "TRAVELING EXPENSES  ...  INCURRED
WHILE AWAY FROM HOME" WITHIN THE MEANING OF SEC. 162(A)(2) (FN1) OR
WHETHER INSTEAD THEY WERE NONDEDUCTIBLE "PERSONAL, LIVING, OR FAMILY
EXPENSES" WITHIN THE MEANING OF SEC 262.  (FN2)  AT ALL PERTINENT
TIMES, RESPONDENT  (FN3)  WAS A CAPTAIN IN THE UNITED STATES MARINE
CORPS, ATTACHED TO AN AVIATION SQUADRON.  IMMEDIATELY PRIOR TO OCTOBER
1957, HIS PERMANENT DUTY STATION WAS A MARINE CORPS BASE LOCATED AT EL
TORO, CALIFORNIA, AND HE LIVED NEARBY WITH HIS WIFE AND CHILDREN.  ON
OCTOBER 1, 1957, HOWEVER, RESPONDENT AND HIS SQUADRON WERE TRANSFERRED
TO IWAKUNI, JAPAN, WHERE THEY WERE TO BE BASED WHILE SERVING A STANDARD
15-MONTH TOUR OF DUTY IN THE FAR EAST.  BECAUSE DEPENDENTS WERE
PROHIBITED FROM ACCOMPANYING MARINE CORPS PERSONNEL TO THAT DUTY
STATION, RESPONDENT'S WIFE AND CHILDREN REMAINED IN CALIFORNIA. 

OF THE 14 1/2 MONTHS' ACTUAL DURATION OF RESPONDENT'S FAR EASTERN
TOUR OF DUTY, HE WAS PHYSICALLY LOCATED AT THE IWAKUNI BASE FOR 10
MONTHS.  THE REMAINING TIME WAS CONSUMED BY TRAVEL AND SHORT PERIODS OF
DUTY AT VARIOUS OTHER MILITARY BASES; RESPONDENT WAS DECLARED TO BE IN
A "TRAVEL STATUS" FOR A PERIOD OF 49 DAYS, AND HE RECEIVED ADDITIONAL
COMPENSATION FOR THOSE DAYS ON A PER DIEM BASIS.   DURING THE ENTIRE
PERIOD OF HIS SERVICE AS A MARINE CORPS CAPTAIN, BOTH WHILE HE SERVED
AT BASES IN THE UNITED STATES AND WHILE HE SERVED ABROAD AWAY FROM HIS
FAMILY, RESPONDENT ALSO RECEIVED TAX-FREE MONTHLY ALLOWANCES FOR
QUARTERS AND SUBSISTENCE. 

ON HIS 1958 INCOME TAX RETURN, RESPONDENT CLAIMED A DEDUCTION OF
$650, REPRESENTING THE COST OF HIS MEALS AT A RATE OF $65 PER MONTH FOR
THE 10 MONTHS SPENT AT THE IWAKUNI BASE.  THE COMMISSIONER OF INTERNAL
REVENUE DISALLOWED THE DEDUCTION, RULING THAT THE EXPENDITURE FOR MEALS
WAS A "PERSONAL, LIVING" EXPENSE UNDER SEC 262 AND NOT A TRAVEL EXPENSE
UNDER SEC. 162(A)(2).  IN THE COMMISSIONER'S VIEW RESPONDENT'S "HOME"
DURING THE PERIOD IN QUESTION WAS HIS PERMANENT DUTY STATION AT IWAKUNI
RATHER THAN CALIFORNIA WHERE HIS FAMILY RESIDED; THEREFORE, HE WAS NOT
"AWAY FROM HOME" WHEN HE INCURRED THE EXPENDITURE.  THE TAX COURT
UPHELD THE COMMISSIONER (40 T.C. 896), AND RESPONDENT PETITIONED FOR
REVIEW IN THE COURT OF APPEALS FOR THE NINTH CIRCUIT.  THAT COURT, IN A
PER CURIAM DECISION WITH ONE JUDGE DISSENTING, REVERSED THE TAX COURT
AND REJECTED THE COMMISSIONER'S DEFINITION OF "HOME" FOR PURPOSES OF
THE DEDUCTION.  355 F.2D 294.  THE MAJORITY OF THE COURT OF APPEALS
RULED THAT THE WORD "HOME" AS USED IN SEC. 162(A)(2) OF THE CODE MUST
BE GIVEN ITS USUAL MEANING AS THE PLACE OF RESIDENCE, NOT THE PLACE OF
BUSINESS, OF THE TAXPAYER AND HIS FAMILY.  AND SINCE IT WAS NOT
REASONABLE FOR THIS TAXPAYER TO MOVE HIS FAMILY RESIDENCE CLOSER TO HIS
PLACE OF BUSINESS, THE "ORDINARY AND NECESSARY" REQUIREMENT APPLICABLE
TO ALL SEC 162 DEDUCTIONS WAS MET AND THE COST OF MEALS AT IWAKUNI WAS
DEDUCTIBLE.  TO RESOLVE A DIRECT CONFLICT BETWEEN THIS DECISION AND A
1948 DECISION OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT IN ANOTHER
CASE INVOLVING A MILITARY OFFICER, BERCAW V. COMMISSIONER, 165 F.2D
521, WE GRANTED CERTIORARI.  385 U.S. 809. 

THIS CASE THEN REQUIRES US TO FOCUS UPON ONE OF THE THREE CONDITIONS
WHICH MUST BE MET BEFORE AN ITEM IS DEDUCTIBLE AS A TRAVEL EXPENSE
UNDER SEC. 162(A)(2).  THERE IS NO QUESTION BUT THAT THE EXPENDITURE
HERE WAS "ORDINARY AND NECESSARY" AND THAT THERE WAS A "DIRECT
CONNECTION BETWEEN THE EXPENDITURE AND THE CARRYING ON OF THE TRADE OR
BUSINESS OF THE TAXPAYER OR OF HIS EMPLOYER."  CF. COMMISSIONER V.
FLOWERS, 326 U.S. 465, 470 (1946); PEURIFOY V. COMMISSIONER, 358 U.S.
59 (1958).  THE ESSENCE OF THE CASE IS WHETHER RESPONDENT WAS "AWAY
FROM HOME" WHEN HE INCURRED THE EXPENDITURE.   AND THE ANSWER TO THAT
QUESTION TURNS UPON A DETERMINATION OF WHETHER, UNDER THE CIRCUMSTANCES
RELATED ABOVE, RESPONDENT'S "HOME" IN 1958 WAS HIS PERMANENT DUTY
STATION AT IWAKUNI, JAPAN, OR, INSTEAD, THE RESIDENCE OF HIS FAMILY IN
CALIFORNIA. 

FROM THE REVENUE ACT OF 1921 (FN4) DOWN TO SEC. 162(A)(2) OF THE 1954
INTERNAL REVENUE CODE CONGRESS HAS PROVIDED A DEDUCTION FROM TAXABLE
INCOME FOR TRAVEL EXPENSES, INCLUDING AMOUNTS EXPENDED FOR MEALS AND
LODGING, WHILE "AWAY FROM HOME."  ALTHOUGH CONGRESS HAS NOT DEFINED THE
CRUCIAL PHRASE "AWAY FROM HOME," ADMINISTRATIVE RULINGS AND REGULATIONS
HAVE BEEN DIRECTED TOWARD THAT PROBLEM.  IN 1921, A GENERAL RULE WAS
ESTABLISHED TO THE EFFECT THAT "HOME" MEANT THE TAXPAYER'S PRINCIPAL
PLACE OF BUSINESS OR EMPLOYMENT WHETHER OR NOT IT COINCIDED WITH HIS
PLACE OF RESIDENCE.  (FN5)  THIS INTERPRETATION PREVENTED DEDUCTIONS OF
DAY-TO-DAY COMMUTING EXPENSES WHICH WERE NOT THE UNUSUAL TYPE OF
"TRAVELING EXPENSE" TO WHICH THE STATUTE WAS DIRECTED.  CF.
COMMISSIONER V. FLOWERS, 326 U.S. 465, 470 (1946).  ITS LOGIC HAS BEEN
APPLIED TO A HOST OF OTHER SITUATIONS.  ALTHOUGH CERTAIN REFINEMENTS
HAVE BEEN ADDED,  (FN6)  THE ESSENTIAL POSITION OF THE COMMISSIONER HAS
REMAINED UNCHANGED. 

WHILE THE COURT BELOW,  (FN7)  TOGETHER WITH THE COURTS OF APPEALS
FOR THE FIFTH  (FN8)  AND SIXTH  (FN9)  CIRCUITS, HAS NOT ALWAYS AGREED
WITH THIS INTERPRETATION, THE TAX COURT  (FN10)  AND ALL OF THE OTHER
COURTS OF APPEALS WHICH HAVE CONSIDERED IT HAVE SUSTAINED THE
COMMISSIONER.  (FN11)  THE COMMISSIONER'S INTERPRETATION OF THE WORD
"HOME" IN CONNECTION WITH TRAVEL-EXPENSE DEDUCTIONS WAS ALSO MADE CLEAR
TO CONGRESS WHEN IN 1936 IT WAS HELD THAT MEMBERS OF CONGRESS COULD NOT
DEDUCT EXPENSES WHICH THEY INCURRED IN WASHINGTON, D.C., EVEN THOUGH
EACH ALSO MAINTAINED A RESIDENCE IN THE DISTRICT FROM WHICH HE HAD BEEN
ELECTED.  LINDSAY V. COMMISSIONER, 34 B.T.A. 840.  CONGRESS DID NOT
RESPOND TO THIS RULING BY AMENDING THE STATUTORY LANGUAGE GENERALLY TO
PROVIDE THAT "HOME" WAS INTENDED TO BE SYNONYMOUS WITH "RESIDENCE," BUT
INSTEAD MERELY CARVED OUT AN EXCEPTION TO COVER THE SPECIAL TRAVEL
EXPENSE PROBLEMS INHERENT IN SERVICE AS A NATIONAL LEGISLATOR.  (FN12) 

THE COMMISSIONER ARGUES THAT THE FACT THAT CONGRESS HAS REVIEWED AND
RE-ENACTED THE PERTINENT LANGUAGE WITH AN AWARENESS OF THE
ADMINISTRATIVE INTERPRETATION CONSTITUTES A LEGISLATIVE ENDORSEMENT OF
THE COMMISSIONER'S POSITION AND IS SUFFICIENT REASON FOR REVERSING THE
JUDGMENT BELOW.  HELVERING V. WINMILL, 305 U.S. 79 (1938).  BUT IT IS
NOT NECESSARY FOR US TO DECIDE HERE WHETHER THIS CONGRESSIONAL ACTION
(OR INACTION) CONSTITUTES APPROVAL AND ADOPTION OF THE COMMISSIONER'S
INTERPRETATION OF "HOME" IN ALL OF ITS MYRIAD APPLICATIONS SINCE, IN
THE CONTEXT OF THE MILITARY TAXPAYER, THE COMMISSIONER'S POSITION HAS A
FIRMER FOUNDATION.  THE COMMISSIONER HAS LONG HELD THAT A MILITARY
TAXPAYER'S PERMANENT DUTY STATION IS ALSO HIS HOME FOR PURPOSES OF
DETERMINING DEDUCTIBILITY OF TRAVEL EXPENSES.  THIS POSITION BUILDS ON
THE TERMINOLOGY EMPLOYED BY THE MILITARY SERVICES TO CATEGORIZE VARIOUS
ASSIGNMENTS AND TOURS OF DUTY, AND ALSO ON THE LANGUAGE AND POLICY OF
THE STATUTORY PROVISIONS PRESCRIBING TRAVEL AND TRANSPORTATION
ALLOWANCES FOR MILITARY PERSONNEL.  FOR EXAMPLE, A MARINE CORPS
DIRECTIVE, WHICH WAS EFFECTIVE DURING RESPONDENT'S FAR EASTERN TOUR OF
DUTY, DEFINED THE LENGTH OF STANDARD TOURS OF DUTY IN TERMS OF THE
COMMENCEMENT AND TERMINATION DATES OF "PERMANENT CHANGES OF STATION." 
(FN13)  SIMILARLY, ELIGIBILITY FOR CERTAIN STATUTORY TRAVEL ALLOWANCES
TURNS UPON WHETHER AN ASSIGNMENT CONSTITUTES A "CHANGE OF PERMANENT
STATION" OR WHETHER THE SERVICEMAN IS "AWAY FROM HIS DESIGNATED POST OF
DUTY."  37 U.S.C. SEC. 404(A)(1).  THUS, THE COMMISSIONER'S POSITION
RECOGNIZES, AS DO THE RELEVANT STATUTES AND THE MILITARY SERVICES
THEMSELVES, THAT THE "PERMANENCE" OF LOCATION IN CIVILIAN LIFE CANNOT
FIND A COMPLETE PARALLEL IN MILITARY LIFE WHICH NECESSARILY
CONTEMPLATES RELATIVELY FREQUENT CHANGES OF LOCATION. 

THE NONDEDUCTIBILITY OF EXPENSES INCURRED BY A MILITARY TAXPAYER
WHILE AT A PERMANENT DUTY STATION WAS PREVIOUSLY CHALLENGED IN BERCAW
V. COMMISSIONER, 165 F.2D 521 (C.A. 4TH CIR. 1948).  THERE, THE
TAXPAYER, A RESERVE ARMY OFFICER WHO WAS CALLED TO ACTIVE DUTY AND
ASSIGNED TO FORT MEADE IN MARYLAND WHERE THERE WERE NO QUARTERS FOR
DEPENDENTS, SOUGHT TO DEDUCT EXPENDITURES FOR HIS MEALS AND JANITORIAL
SERVICE AS COSTS OF TRAVELING "AWAY FROM HOME" IN PURSUIT OF HIS TRADE
OR BUSINESS.  THE COURT OF APPEALS AFFIRMED THE TAX COURT'S
DISALLOWANCE OF THE DEDUCTION, STATING: 

"THE TAXPAYER WAS ENGAGED IN THE BUSINESS OF AN ARMY OFFICER.  HIS
PLACE OF BUSINESS WAS HIS PARTICULAR ARMY POST.  IF HIS ARMY DUTIES
REQUIRED HIM TO TRAVEL, HE WOULD HAVE RECEIVED A PER DIEM TRAVEL
ALLOWANCE WHICH WOULD NOT HAVE BEEN TAXABLE  ...  . BUT WHENEVER HE
MADE A PERMANENT CHANGE OF STATION THAT PLACE OF DUTY BECAME HIS PLACE
OF BUSINESS AND THERE WAS HIS 'HOME' WITHIN THE MEANING OF SECTION
23(A)(1)(A)  ...  .  THUS THE EXPENDITURES FOR MEALS  ...  WHILE AT
THIS POST WERE PERSONAL LIVING EXPENSES AND NON-DEDUCTIBLE  ...  ." 
165 F.2D, AT 524. 

SINCE THE BERCAW DECISION, THE COMMISSIONER HAS REITERATED HIS
POSITION IN REV. RUL. 55-571, 1955-2 CUM. BULL.  44.  AND UNTIL THE
DECISION OF THE COURT BELOW IN THE PRESENT CASE, NEITHER THE COURTS NOR
CONGRESS HAD DISTURBED THE COMMISSIONER'S INTERPRETATION OF "HOME" AS
IT PERTAINED TO MILITARY PERSONNEL. 

ADDITIONAL SUPPORT FOR THE COMMISSIONER'S POSITION IS FOUND IN THE
FACT THAT CONGRESS TRADITIONALLY HAS PROVIDED A SPECIAL SYSTEM OF TAX
FREE ALLOWANCES FOR MILITARY PERSONNEL.  (FN14) THESE ALLOWANCES NOW
RANGE FROM MONTHLY PAYMENTS FOR QUARTERS  (FN15) AND SUBSISTENCE
(FN16)  TO PER DIEM PAYMENTS WHEN THE SERVICEMAN IS DECLARED IN A
"TRAVEL STATUS."  (FN17)  PROVISION MAY ALSO BE MADE FOR FINANCIAL
RELIEF TO ASSIST DEPENDENTS IN RELOCATING WHEN THEY ARE PROHIBITED FROM
ACCOMPANYING A SERVICEMAN ON A CHANGE OF PERMANENT DUTY STATION. 
(FN18)  IN THE PRESENT CASE, RESPONDENT RECEIVED THE PER DIEM PAYMENTS
WHILE HE WAS AWAY FROM HIS PERMANENT DUTY STATION.  HIS QUARTERS AT
IWAKUNI WERE PROVIDED WITHOUT COST TO HIM, AND AT THE SAME TIME HE
CONTINUED TO RECEIVE A TAX-FREE QUARTERS ALLOWANCE OF APPROXIMATELY
$102.50 PER MONTH; (FN19)  HE ALSO RECEIVED A TAX-FREE SUBSISTENCE
ALLOWANCE OF APPROXIMATELY $42.50 PER MONTH AT ALL RELEVANT TIMES. 
MOREOVER, BECAUSE HIS ASSIGNMENT TO IWAKUNI WAS A CHANGE OF PERMANENT
STATION, HIS WIFE AND CHILDREN COULD HAVE MOVED THEIR RESIDENCE TO
ANOTHER PART OF THE UNITED STATES AT THE GOVERNMENT'S EXPENSE; HOWEVER,
THEY ELECTED NOT TO EXERCISE THAT OPTION. 

UNDERLYING THE SYSTEM OF SPECIAL ALLOWANCES IS CONGRESSIONAL
RECOGNITION OF THE FACT THAT MILITARY LIFE POSES UNUSUAL FINANCIAL
PROBLEMS.  (FN20)  THE SYSTEM IS DESIGNED TO PROVIDE COMPLETE AND
DIRECT RELIEF FROM SUCH PROBLEMS AS OPPOSED TO THE INCOMPLETE AND
INDIRECT RELIEF WHICH AN INCOME TAX DEDUCTION AFFORDS TO A CIVILIAN
BUSINESS TRAVELER.  (FN21)  IF THE SYSTEM OF ALLOWANCES IS IN FACT
INADEQUATE, OF IF THERE ARE INCONSISTENCIES IN THE COMMISSIONER'S
APPLICATION OF THE TRAVEL-EXPENSE PROVISION TO MILITARY PERSONNEL,
(FN22)  IT IS THE PROVINCE OF CONGRESS AND THE COMMISSIONER, NOT THE
COURTS, TO MAKE THE APPROPRIATE ADJUSTMENTS.  GIVEN THE COMMISSIONER'S
LONG-STANDING AND JUDICIALLY APPROVED INTERPRETATION, THE KNOWLEDGE OF
THAT INTERPRETATION BY CONGRESS, AND THE FACT THAT CONGRESS HAS CHOSEN
TO DEAL SPECIALLY BY TAX-FREE ALLOWANCES WITH THE FINANCIAL PROBLEMS
PECULIAR TO MILITARY LIFE, WE MUST AGREE WITH THE COMMISSIONER THAT THE
MILITARY TAXPAYER IS NOT "AWAY FROM HOME" WHEN HE IS AT HIS PERMANENT
DUTY STATION WHETHER OR NOT IT IS FEASIBLE OR EVEN PERMISSIBLE FOR HIS
FAMILY TO RESIDE WITH HIM THERE.  THE JUDGMENT IS, THEREFORE,
REVERSED. 

FN1  "THERE SHALL BE ALLOWED AS A DEDUCTION ALL THE ORDINARY AND
NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE YEAR IN CARRYING
ON ANY TRADE OR BUSINESS, INCLUDING: 

     *         *         *      *         * 

"(2)  TRAVELING EXPENSES (INCLUDING THE ENTIRE AMOUNT EXPENDED FOR
MEALS AND LODGING) WHILE AWAY FROM HOME IN THE PURSUIT OF A TRADE OR
BUSINESS  ...  ."  SEC. 162(A)(2) OF THE INTERNAL REVENUE CODE OF 1954,
26 U.S.C. SEC. 162(A)(2)(1958 ED.). 

FN2  "EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS CHAPTER, NO
DEDUCTION SHALL BE ALLOWED FOR PERSONAL, LIVING, OR FAMILY EXPENSES." 
SEC 262 OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. SEC 262. 

FN3  SINCE A JOINT INCOME TAX RETURN WAS FILED BY CAPTAIN AND MRS.
STIDGER, BOTH ARE RESPONDENTS HERE.  IN THIS OPINION, HOWEVER, THE
TERMS "RESPONDENT" AND "TAXPAYER" REFER ONLY TO CAPTAIN STIDGER. 

FN4  REVENUE ACT OF 1921, C. 136, SEC. 214(A), 42 STAT. 239. 

FN5  O.D. 864, 4 CUM. BULL.  211 (1921); O.D. 1021, 5 CUM. BULL.  174
(1921).    FN6  SEE, E.G., I.T. 1490, I-2 CUM. BULL.  89 (1922); REV.
RUL. 60-189, 1960-1 CUM. BULL.  60.  SEE ALSO NOTE 22, INFRA. 

FN7  IN ADDITION TO THE INSTANT CASE, SEE ALSO WRIGHT V. HARTSELL,
305 F.2D 221 (C.A. 9TH CIR. 1962). 

FN8  STEINHORT V. COMMISSIONER, 335 F.2D 496 (C.A. 5TH CIR. 1964);
UNITED STATES V. LE BLANC, 278 F.2D 571 (C.A. 5TH CIR. 1960). 

FN9  BURNS V. GRAY, 287 F.2D 698 (C.A. 6TH CIR. 1961). 

FN10  SEE, E.G., FRIEDMAN V. COMMISSIONER, 37 T.C. 539 (1961);
CARROLL V. COMMISSIONER, 20 T.C. 382 (1953).  THE FACTS OF THE CARROLL
CASE ARE CLOSELY ANALOGOUS TO THE CIRCUMSTANCES SURROUNDING THE CLAIMED
DEDUCTION HERE.  THE TAXPAYER THERE WAS AN EMPLOYEE OF THE WAR
DEPARTMENT WHO IN 1947 WAS TRANSFERRED TO A "PERMANENT DUTY STATION" IN
KOREA FOR A MINIMUM OF ONE YEAR.  HIS WIFE AND CHILD REMAINED IN THE
UNITED STATES.  A DEDUCTION FOR THE COST OF MEALS AND LODGING WHILE IN
KOREA WAS NOT ALLOWED BY THE TAX COURT WHICH NOTED THAT THE TAXPAYER'S
EMPLOYER (1) DESIGNATED KOREA AS A "PERMANENT DUTY STATION" AND (2)
GRANTED PER DIEM TRAVEL ALLOWANCES ONLY WHILE THE TAXPAYER WAS EN ROUTE
TO AND FROM KOREA, NOT WHILE HE WAS BASED THERE.  SEE ALSO TODD V.
COMMISSIONER, 10 T.C. 655 (1948). 

FN11  SEE, E.G., O'TOOLE V. COMMISSIONER, 243 F.2D 302 (C.A. 2D CIR.
1957); COERVER V. COMMISSIONER, 297 F.2D 837 (C.A. 3D CIR. 1962),
AFFIRMING 36 T.C. 252 (1961); BERCAW V. COMMISSIONER, 165 F.2D 521
(C.A. 4TH CIR. 1948); ENGLAND V. UNITED STATES, 345 F.2D 414 (C.A. 7TH
CIR. 1965); COCKRELL V. COMMISSIONER, 321 F.2D 504 (C.A. 8TH CIR.
1963); AND YORK V. COMMISSIONER, 82 U.S. APP. D.C. 63, 160 F.2D 385
(1947).  THE COURTS OF APPEALS FOR THE FIRST AND TENTH CIRCUITS
APPARENTLY HAVE NOT TAKEN A POSITION ON THIS QUESTION. 

FN12  66 STAT. 467.  THE EXCEPTION WAS CARRIED OVER TO THE 1954 CODE
AND NOW READS: "FOR PURPOSES OF THE PRECEDING SENTENCE, THE PLACE OF
RESIDENCE OF A MEMBER OF CONGRESS  ...  WITHIN THE STATE, CONGRESSIONAL
DISTRICT, TERRITORY, OR POSSESSION WHICH HE REPRESENTS IN CONGRESS
SHALL BE CONSIDERED HIS HOME, BUT AMOUNTS EXPENDED BY SUCH MEMBERS
WITHIN EACH TAXABLE YEAR FOR LIVING EXPENSES SHALL NOT BE DEDUCTIBLE
FOR INCOME TAX PURPOSES IN EXCESS OF $3,000."  26 U.S.C. SEC. 162(A). 

FN13  MARINE CORPS ORDER 1300.8B, C. 1, ISSUED JULY 1, 1958.  RECORD,
P. 24. 

FN14  SEE GENERALLY ADVISORY COMMISSION ON SERVICE PAY, CAREER
COMPENSATION FOR THE UNIFORMED FORCES, APPENDIX 13-18 (1948). 

FN15  37 U.S.C. SEC 403. 

FN16  37 U.S.C. SEC 402. 

FN17  37 U.S.C. SEC 404.  SEE ALSO 37 U.S.C. SECS 405-412. 

FN18  37 U.S.C. SEC. 406(H). 

FN19  37 U.S.C. SEC. 403(D) PROVIDES:  "A MEMBER OF A UNIFORMED
SERVICE WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES OR A HOUSING
FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE MAY NOT BE
DENIED THE BASIC ALLOWANCE FOR QUARTERS IF, BECAUSE OF ORDERS OF
COMPETENT AUTHORITY, HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING THOSE
QUARTERS." 

FN20  IN 1948, THE HOOK COMMISSION, WHICH HAD BEEN APPOINTED BY THE
SECRETARY OF DEFENSE TO STUDY MILITARY COMPENSATION, ISSUED ITS REPORT
AND RECOMMENDATIONS.  ADVISORY COMMISSION ON SERVICE PAY, CAREER
COMPENSATION FOR THE UNIFORMED FORCES (1948).  THAT REPORT FORMED A
PRINCIPAL BASIS FOR THE CAREER COMPENSATION ACT OF 1949, C. 681, 63
STAT. 802.  ON THE SUBJECTS OF SUBSISTENCE AND QUARTERS ALLOWANCES, THE
COMMISSION STATED (APPENDIX, P. 17): 

"THE THEORY BEHIND THE SUBSISTENCE ALLOWANCE IS THAT SINCE THE
OFFICER IS REQUIRED TO ARRANGE AND PROVIDE HIS SUBSISTENCE AT ALL TIMES
AND SINCE HE HAS NO CHOICE AS TO THE PLACE WHERE HE IS TO BE STATIONED
AND THEREFORE DOES NOT HAVE THE CHOICE OF THE AVERAGE CITIZEN AS TO THE
PLACE AND MANNER OF SUBSISTING HIMSELF, IT IS NECESSARY TO PROVIDE HIM
WITH AN ALLOWANCE AT ALL TIMES SO THAT HE MAY BEAR THAT EXPENSE
WHEREVER STATIONED. 

     *         *         *         *         * 

"BECAUSE AN OFFICER IS TRANSFERRED FREQUENTLY FROM PLACE TO PLACE AND
IS REQUIRED TO DIG UP HIS ROOTS AT THE OLD STATION AND TRANSPLANT THEM
TO THE NEW STATION, THE GOVERNMENT HAS ACKNOWLEDGED FOR YEARS ITS
OBLIGATION TO FURNISH QUARTERS TO THE OFFICER FOR OCCUPANCY BY HIMSELF
AND HIS DEPENDENTS." 

FN21  CONGRESS HAS THROUGH THE YEARS EVIDENCED A DETERMINATION TO
MAINTAIN THE VARIOUS ALLOWANCES AT LEVELS CONSISTENT WITH THE NECESSARY
FINANCIAL BURDENS BORNE BY SERVICEMEN.  SEE E.G., ID., AT 35 AND
APPENDIX 13-18; H.R. REP. NO. 779, 81ST CONG., 1ST SESS., P. 19.  IN
1963, CONGRESS ENACTED YET ANOTHER MEASURE DESIGNED TO PROVIDE DIRECT
RELIEF FOR DEPENDENTS SEPARATED FROM SERVICEMEN ON PERMANENT DUTY
OUTSIDE THIS COUNTRY OR IN ALASKA.  37 U.S.C. SEC. 427(B).  UNDER
SPECIFIED CONDITIONS, THIS PROVISION AUTHORIZES AN ALLOWANCE OF $30
MONTHLY.  IT WAS ESTABLISHED BECAUSE CONGRESS RECOGNIZED THAT SEPARATED
FAMILIES INCUR ADDITIONAL EXPENSES.  SEE.  H.R. REP. NO. 208, 88TH
CONG., 1ST SESS., P. 29.  THAT RECOGNITION IS, OF COURSE, THE SAME ONE
THAT UNDERLIES THE TRAVEL-EXPENSE DEDUCTION FOR CIVILIAN TAXPAYERS. 

FN22  THE  COMMISSIONER HAS TAKEN THE POSITION THAT A NAVAL OFFICER
MAY DEDUCT AS A TRAVELING EXPENSE THE COST OF HIS MEALS ABOARD SHIP
WHILE THE SHIP IS AWAY FROM ITS HOME PORT.  REV. RUL. 55-571, 1955-2
CUM. BULL.  44.  IT IS CONTENDED THAT RESPONDENT'S SITUATION AT IWAKUNI
WAS DIRECTLY ANALOGOUS TO THAT OF A NAVAL OFFICER ON A SHIP AT SEA FOR
AN EXTENDED PERIOD OF TIME.  THE COMMISSIONER JUSTIFIES THE DISCREPANT
TREATMENT BY ARGUING THAT A NAVAL OFFICER SHOULD BE TREATED LIKE THE
ENGINEER OF A TRAIN, A BUS DRIVER, OR AN AIRPLANE PILOT FOR PURPOSES OF
THE TRAVEL-EXPENSE DEDUCTION; THE PRINCIPAL PLACE OF BUSINESS OF SUCH
TAXPAYERS IS THEIR HOME TERMINAL AND THEY ARE ALLOWED THE DEDUCTION
WHEN AWAY FROM THAT TERMINAL ON BUSINESS TRIPS.  WE ARE NOT CONVINCED
THAT RESPONDENT'S SITUATION WAS IN ALL RELEVANT RESPECTS ANALOGOUS TO
THAT OF A NAVAL OFFICER AT SEA.  IN ANY EVENT, DURING ORAL ARGUMENT WE
WERE ADVISED THAT THE COMMISSIONER IS RE-EXAMINING HIS POSITION WITH
RESPECT TO NAVAL OFFICERS. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
FORTAS CONCUR, DISSENTING. 

THE RESOLUTION OF THIS CASE DEPENDS UPON WHETHER RESPONDENT WAS "AWAY
FROM HOME" WHEN HE INCURRED THE EXPENSES.  (FN1)  THE TERM "HOME" IS
NOT DEFINED. 

THE TREASURY'S ADMINISTRATIVE RULINGS FOR MANY YEARS HAVE INDEED
TREATED THE STATUTORY WORD "HOME" AS MEANING A TAXPAYER'S PRINCIPAL
PLACE OF BUSINESS OR EMPLOYMENT.  SEE COMMISSIONER V. FLOWERS, 326 U.S.
465, 471-472.  TO ME IT IS CLEAR THAT HOME MEANS RESIDENCE, WITH THE
QUALIFICATION THAT A TAXPAYER SHOULD ESTABLISH HIS RESIDENCE AS NEAR TO
HIS PLACE OF EMPLOYMENT AS IS REASONABLE.  IBID. HERE THE TAXPAYER WAS
FORBIDDEN BY MILITARY ORDERS TO TAKE HIS FAMILY WITH HIM.  HE WAS, IN
OTHER WORDS, BARRED FROM TAKING HIS HOME WITH HIM WHENEVER HE WENT ON
MILITARY ORDERS.  THE COMMISSIONER POINTS TO THE DIFFICULTY OF HAVING
ANY RULE OTHER THAN THE FIXED ONE THAT "HOME" MEANS THE TAXPAYER'S
PRINCIPAL PLACE OF BUSINESS OR EMPLOYMENT.  IT IS SAID THAT IF THE RULE
IS NOT RIGID, A GREAT COMPLEX OF FACTS WOULD HAVE TO BE CONSIDERED:
ADEQUACY OF HOUSING AT THE NEW POST, EXPENSE OF MOVING, SCHOOL
FACILITIES, HEALTH OF THE FAMILY, THE NEED TO CARE FOR ELDERLY OR
AILING RELATIVES, AND THE LIKE.  ONLY A FIXED RULE PROVIDES CERTAINTY,
IT IS SAID; ANY OTHER WOULD THREATEN THE DESIRE FOR UNIFORMITY. 

WHILE EQUITY IS SELDOM AN INGREDIENT OF THE TAX LAWS, WHILE THEY ARE
INDEED INHERENTLY DISCRIMINATORY IN MANY WAYS, REFLECTING PERQUISITES
OBTAINED BY PRESSURE GROUPS,  (FN2)  WE NEED NOT INCREASE THEIR
HARSHNESS BY GIVING SIMPLE WORDS UNUSUAL OR STRAINED MEANINGS - UNLESS
OF COURSE CONGRESS HAS PLAINLY MADE AN ARBITRARY CHOICE. 

IF THE TAXPAYER CHOOSES TO MAINTAIN HIS RESIDENCE AT A PLACE FAR
REMOVED FROM HIS PLACE OF BUSINESS, THE TRAVEL EXPENSES ARE NOT
"ORDINARY AND NECESSARY" SINCE NOT DICTATED BY BUSINESS NEEDS. 
COMMISSIONER V. FLOWERS, SUPRA.  ON THE OTHER HAND, IF THE TAXPAYER
CANNOT REASONABLY MAINTAIN HIS RESIDENCE AT HIS PLACE OF BUSINESS, THE
TRAVEL EXPENSES ARE "ORDINARY AND NECESSARY" AND HENCE DEDUCTIBLE. 
SUCH AN INTERPRETATION WOULD GIVE EFFECT TO THE CONGRESSIONAL POLICY OF
ALLOWING A DEDUCTION FOR EXPENSES DICTATED BY THE NEEDS OF THE
TAXPAYER'S EMPLOYMENT. 

IN THIS CASE THERE CAN BE NO QUESTION THAT THE EXPENSES WERE INCURRED
IN THE PURSUIT OF THE TAXPAYER'S EMPLOYMENT AND THAT RESPONDENT COULD
NOT MOVE HIS RESIDENCE TO IWAKUNI.  THERE CAN BE NO QUESTION THAT THE
EXPENSES WERE MOTIVATED BY "THE EXIGENCIES OF BUSINESS RATHER THAN THE
PERSONAL CONVENIENCES AND NECESSITIES OF THE" RESPONDENT.  COMMISSIONER
V. FLOWERS, SUPRA, AT 474.  I CANNOT SEE HOW THE RESULT IS CHANGED
SIMPLY BECAUSE RESPONDENT IS A MEMBER OF THE ARMED SERVICES.  THE FACT
THAT CONGRESS HAS AFFORDED MEMBERS OF THE MILITARY SPECIAL ALLOWANCES
IS NO INDICATION THAT CONGRESS INTENDED THAT THEY NOT BE ALLOWED TO
DEDUCT "ORDINARY AND NECESSARY" EXPENSES INCURRED WHILE AWAY FROM THEIR
RESIDENCE.  RESPONDENT RECEIVED THE SAME PAY AND BASIC ALLOWANCES WHILE
IN THE FAR EAST AS HE DID WHILE RESIDING WITH HIS FAMILY IN THE UNITED
STATES.  THERE WAS NO INCREASE TO HELP DEFRAY THE INCREASED EXPENSES
INCURRED BY HIM WHILE REQUIRED TO LIVE AWAY FROM HIS FAMILY. 

FN1  SECTION 162 OF THE INTERNAL REVENUE CODE OF 1954 PROVIDES IN
RELEVANT PART: 

"(A)  IN GENERAL.  - THERE SHALL BE ALLOWED AS A DEDUCTION ALL THE
ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE
YEAR IN CARRYING ON ANY TRADE OR BUSINESS, INCLUDING: 

     *         *         *    *         * 

"(2)  TRAVELING EXPENSES (INCLUDING THE ENTIRE AMOUNT EXPENDED FOR
MEALS AND LODGING) WHILE AWAY FROM HOME IN THE PURSUIT OF A TRADE OR
BUSINESS  ...  ." 

FN2  "  ...  ASSUME THAT A FARMER HAS A HERD OF HOGS.  EACH YEAR HE
SELECTS CERTAIN YOUNG TO BE BRED.  AFTER EACH SOW HAS ONE LITTER, SHE
IS TURNED OUT TO BE CONDITIONED FOR SLAUGHTER.  THE PROFITS ON THE SALE
OF THE PIGS UNBRED ARE TAXABLE AS ORDINARY INCOME.  BUT THE PROFITS ON
THE SALE OF THE PIGS BRED ONCE ARE TAXABLE AS CAPITAL GAINS.  THEY HAVE
BEEN HELD AS BUSINESS PROPERTIES PRODUCING OTHER PIGS.  THE FACT THAT
ALL THE PIGS ARE EQUALLY DESTINED TO BE SOLD AND EATEN IS
UNIMPORTANT."  EISENSTEIN, THE IDEOLOGIES OF TAXATION 174 (1961). 
..END :



MCCRAY V. ILLINOIS 386 U.S. 300 


NO. 159.  ARGUED JANUARY 10-11, 1967.  - DECIDED MARCH 20, 1967.  - 33
ILL. 2D 66, 210 N.E.2D 161, AFFIRMED. 


FOLLOWING RECEIPT OF INFORMATION FROM AN INFORMER, TWO CHICAGO
POLICEMEN MADE A WARRANTLESS ARREST OF THE PETITIONER FOR POSSESSING
NARCOTICS.  AT THE PRETRIAL HEARING ON PETITIONER'S MOTION TO SUPPRESS
THE EVIDENCE WHICH WAS FOUND ON HIS PERSON, THE OFFICERS TESTIFIED
THAT: THE INFORMANT HAD TOLD THEM THAT PETITIONER "WAS SELLING
NARCOTICS AND HAD NARCOTICS ON HIS PERSON" AND THE AREA WHERE
PETITIONER COULD THEN BE FOUND; THEY FOUND HIM IN THAT VICINITY; AFTER
POINTING PETITIONER OUT, THE INFORMANT DEPARTED; THEY ARRESTED
PETITIONER AND SEARCHED HIM IN THEIR VEHICLE AND FOUND THE NARCOTICS ON
HIS PERSON.  THE OFFICERS ALSO TESTIFIED THAT, DURING THE ONE TO TWO
YEARS RESPECTIVELY THAT THEY HAD KNOWN THE INFORMANT, HE HAD FREQUENTLY
FURNISHED ACCURATE INFORMATION ABOUT NARCOTICS ACTIVITIES WHICH HAD LED
TO MANY CONVICTIONS.  PETITIONER REQUESTED THE INFORMANT'S IDENTITY AND
THE STATE, RELYING ON THE TESTIMONIAL PRIVILEGE UNDER ILLINOIS LAW
AGAINST SUCH DISCLOSURE, OBJECTED.  THE STATE'S OBJECTIONS WERE
SUSTAINED, PETITIONER'S MOTION TO SUPPRESS WAS DENIED, AND HE WAS
THEREAFTER CONVICTED UPON THE BASIS OF THE EVIDENCE SEIZED.  THE
JUDGMENT OF CONVICTION WAS AFFIRMED BY THE STATE SUPREME COURT, WHICH
HELD THE ARREST LAWFUL AND NOT VITIATED BY THE APPLICATION OF THE
"INFORMER'S PRIVILEGE."  HELD: 1.  UPON THE BASIS OF THE CIRCUMSTANCES
RELATED BY THE OFFICERS, THEY HAD PROBABLE CAUSE TO MAKE THE ARREST AND
THE SEARCH INCIDENTAL THERETO.  P. 304. 

2.  A STATE COURT IS UNDER NO ABSOLUTE DUTY UNDER EITHER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDEMNT OR UNDER THE SIXTH AMENDMENT
AS INCORPORATED THEREIN TO REQUIRE DISCLOSURE OF AN INFORMER'S IDENTITY
AT A PRETRIAL HEARING HELD FOR THE PURPOSE OF DETERMINING ONLY THE
QUESTION OF PROBABLE CAUSE FOR AN ARREST OR SEARCH WHERE, AS HERE,
THERE WAS AMPLE EVIDENCE IN AN OPEN AND ADVERSARY PROCEEDING THAT THE
INFORMER WAS KNOWN TO THE OFFICERS TO BE RELIABLE AND THAT THEY MADE
THE ARREST IN GOOD FAITH UPON THE INFORMATION HE SUPPLIED.  PP.  395
314. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS ARRESTED IN CHICAGO, ILLINOIS, ON THE MORNING OF
JANUARY 16, 1964, FOR POSSESSION OF NARCOTICS.  THE CHICAGO POLICE
OFFICERS WHO MADE THE ARREST FOUND A PACKAGE CONTAINING HEROIN ON HIS
PERSON AND HE WAS INDICTED FOR ITS UNLAWFUL POSSESSION.  PRIOR TO TRIAL
HE FILED A MOTION TO SUPPRESS THE HEROIN AS EVIDENCE AGAINST HIM,
CLAIMING THAT THE POLICE HAD ACQUIRED IT IN AN UNLAWFUL SEARCH AND
SEIZURE IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS.  SEE MAPP
V. OHIO, 367 U.S. 643.  AFTER A HEARING, THE COURT DENIED THE MOTION,
AND THE PETITIONER WAS SUBSEQUENTLY CONVICTED UPON THE EVIDENCE OF THE
HEROIN THE ARRESTING OFFICERS HAD FOUND IN HIS POSSESSION.  THE
JUDGMENT OF CONVICTION WAS AFFIRMED BY THE SUPREME COURT OF ILLINOIS,
(FN1)  AND WE GRANTED CERTIORARI TO CONSIDER THE PETITIONER'S CLAIM
THAT THE HEARING ON HIS MOTION TO SUPPRESS WAS CONSTITUTIONALLY
DEFECTIVE.  (FN2) 

THE PETITIONER'S ARREST OCCURRED NEAR THE INTERSECTION OF 49TH STREET
AND CALUMET AVENUE AT ABOUT SEVEN IN THE MORNING.  AT THE HEARING ON
THE MOTION TO SUPPRESS, HE TESTIFIED THAT UP UNTIL A HALF HOUR BEFORE
HE WAS ARRESTED HE HAD BEEN AT "A FRIEND'S HOUSE" ABOUT A BLOCK AWAY,
THAT AFTER LEAVING THE FRIEND'S HOUSE HE HAD "WALKED WITH A LADY FROM
48TH TO 48TH AND SOUTH PARK," AND THAT, AS HE APPROACHED 49TH STREET
AND CALUMET AVENUE, "THE OFFICERS STOPPED ME GOING THROUGH THE ALLEY." 
"THE OFFICERS," HE SAID, "DID NOT SHOW ME A SEARCH WARRANT FOR MY
PERSON OR AN ARREST WARRANT FOR MY ARREST."  HE SAID THE OFFICERS THEN
SEARCHED HIM AND FOUND THE NARCOTICS IN QUESTION.  (FN3)  THE
PETITIONER DID NOT IDENTIFY THE "FRIEND" OR THE "LADY," AND NEITHER OF
THEM APPEARED AS A WITNESS. 

THE ARRESTING OFFICERS THEN TESTIFIED.  OFFICER JACKSON STATED THAT
HE AND TWO FELLOW OFFICERS HAD HAD A CONVERSATION WITH AN INFORMANT ON
THE MORNING OF JANUARY 16 IN THEIR UNMARKED POLICE CAR.  THE OFFICER
SAID THAT THE INFORMANT HAD TOLD THEM THAT THE PETITIONER, WITH WHOM
JACKSON WAS ACQUAINTED, "WAS SELLING NARCOTICS AND HAD NARCOTICS ON HIS
PERSON AND THAT HE COULD BE FOUND IN THE VICINITY OF 47TH AND CALUMET
AT THIS PARTICULAR TIME."  JACKSON SAID THAT HE AND HIS FELLOW OFFICERS
DROVE TO THAT VICINITY IN THE POLICE CAR AND THAT WHEN THEY SPOTTED THE
PETITIONER, THE INFORMANT POINTED HIM OUT AND THEN DEPARTED ON FOOT. 
JACKSON STATED THAT THE OFFICERS OBSERVED THE PETITIONER WALKING WITH A
WOMAN, THEN SEPARATING FROM HER AND MEETING BRIEFLY WITH A MAN, THEN
PROCEEDING ALONE, AND FINALLY, AFTER SEEING THE POLICE CAR, "HURRIEDLY
WALKING BETWEEN TWO BUILDINGS."  "AT THIS POINT," JACKSON TESTIFIED,
"MY PARTNER AND MYSELF GOT OUT OF THE CAR AND INFORMED HIM WE HAD
INFORMATION HE HAD NARCOTICS ON HIS PERSON, PLACED HIM IN THE POLICE
VEHICLE AT THIS POINT."  JACKSON STATED THAT THE OFFICERS THEN SEARCHED
THE PETITIONER AND FOUND THE HEROIN IN A CIGARETTE PACKAGE. 

JACKSON TESTIFIED THAT HE HAD BEEN ACQUAINTED WITH THE INFORMANT FOR
APPROXIMATELY A YEAR, THAT DURING THIS PERIOD THE INFORMANT HAD
SUPPLIED HIM WITH INFORMATION ABOUT NARCOTICS ACTIVITIES "FIFTEEN,
SIXTEEN TIMES AT LEAST," THAT THE INFORMATION HAD PROVED TO BE ACCURATE
AND HAD RESULTED IN NUMEROUS ARRESTS AND CONVICTIONS.  ON CROSS
EXAMINATION, JACKSON WAS EVEN MORE SPECIFIC AS TO THE INFORMANT'S
PREVIOUS RELIABILITY, GIVING THE NAMES OF PEOPLE WHO HAD BEEN CONVICTED
OF NARCOTICS VIOLATIONS AS THE RESULT OF INFORMATION THE INFORMANT HAD
SUPPLIED.  WHEN JACKSON WAS ASKED FOR THE INFORMANT'S NAME AND ADDRESS,
COUNSEL FOR THE STATE OBJECTED, AND THE OBJECTION WAS SUSTAINED BY THE
COURT.  (FN4) 

OFFICER ARNOLD GAVE SUBSTANTIALLY THE SAME ACCOUNT OF THE
CIRCUMSTANCES OF THE PETITIONER'S ARREST AND SEARCH, STATING THAT THE
INFORMANT HAD TOLD THE OFFICERS THAT THE PETITIONER "WAS SELLING
NARCOTICS AND HAD NARCOTICS ON HIS PERSON NOW IN THE VICINITY OF 47TH
AND CALUMENT."  THE INFORMANT, ARNOLD TESTIFIED, "SAID HE HAD OBSERVED
THE PETITIONER SELLING NARCOTICS TO VARIOUS PEOPLE, MEANING VARIOUS
ADDICTS, IN THE AREA OF 47TH AND CALUMET."  ARNOLD TESTIFIED THAT HE
HAD KNOWN THE INFORMANT "ROUGHLY TWO YEARS," THAT THE INFORMANT HAD
GIVEN HIM INFORMATION CONCERNING NARCOTICS "20 OR 25 TIMES," AND THAT
THE INFORMATION HAD RESULTED IN CONVICTIONS.  ARNOLD TOO WAS ASKED ON
CROSS-EXAMINATION FOR THE INFORMANT'S NAME AND ADDRESS, AND OBJECTIONS
TO THESE QUESTIONS WERE SUSTAINED BY THE COURT. 

THERE CAN BE NO DOUBT, UPON THE BASIS OF THE CIRCUMSTANCES RELATED BY
OFFICERS JACKSON AND ARNOLD, THAT THERE WAS PROBABLE CAUSE TO SUSTAIN
THE ARREST AND INCIDENTAL SEARCH IN THIS CASE.  DRAPER V. UNITED
STATES, 358 U.S. 307.  UNLIKE THE SITUATION IN BECK V. OHIO, 379 U.S.
89, EACH OF THE OFFICERS IN THIS CASE DESCRIBED WITH SPECIFICITY "WHAT
THE INFORMER ACTUALLY SAID, AND WHY THE OFFICER THOUGHT THE INFORMATION
WAS CREDIBLE."  379 U.S., AT 97.  THE TESTIMONY OF EACH OF THE OFFICERS
INFORMED THE COURT OF THE "UNDERLYING CIRCUMSTANCES FROM WHICH THE
INFORMANT CONCLUDED THAT THE NARCOTICS WERE WHERE HE CLAIMED THEY WERE,
AND SOME OF THE UNDERLYING CIRCUMSTANCES FROM WHICH THE OFFICER
CONCLUDED THAT THE INFORMANT  ...  WAS 'CREDIBLE' OR HIS INFORMATION
'RELIABLE.'"  AGUILAR V. TEXAS, 378 U.S. 108, 114.  SEE UNITED STATES
V. VENTRESCA, 380 U.S. 102.  UPON THE BASIS OF THOSE CIRCUMSTANCES,
ALONG WITH THE OFFICER'S PERSONAL OBSERVATION OF THE PETITIONER, THE
COURT WAS FULLY JUSTIFIED IN HOLDING THAT AT THE TIME THE OFFICERS MADE
THE ARREST "THE FACTS AND CIRCUMSTANCES WITHIN THEIR KNOWLEDGE AND OF
WHICH THEY HAD REASONABLY TRUSTWORTHY INFORMATION WERE SUFFICIENT TO
WARRANT A PRUDENT MAN IN BELIEVING THAT THE PETITIONER HAD COMMITTED OR
WAS COMMITTING AN OFFENSE.  BRINEGAR V. UNITED STATES, 338 U.S. 160,
175-176; HENRY V. UNITED STATES, 361 U.S. 98, 102."  BECK V. OHIO,
SUPRA, AT 91.  IT IS THE PETITIONER'S CLAIM, HOWEVER, THAT EVEN THOUGH
THE OFFICERS' SWORN TESTIMONY FULLY SUPPORTED A FINDING OF PROBABLE
CAUSE FOR THE ARREST AND SEARCH, THE STATE COURT NONETHELESS VIOLATED
THE CONSTITUTION WHEN IT SUSTAINED OBJECTIONS TO THE PETITIONER'S
QUESTIONS AS TO THE IDENTITY OF THE INFORMANT.  WE CANNOT AGREE. 

IN PERMITTING THE OFFICERS TO WITHHOLD THE INFORMANT'S IDENTITY, THE
COURT WAS FOLLOWING WELL-SETTLED ILLINOIS LAW.  WHEN THE ISSUE IS NOT
GUILT OR INNOCENCE, BUT, AS HERE, THE QUESTION OF PROBABLE CAUSE FOR AN
ARREST OR SEARCH, THE ILLINOIS SUPREME COURT HAS HELD THAT POLICE
OFFICERS NEED NOT INVARIABLY BE REQUIRED TO DISCLOSE AN INFORMANT'S
IDENTITY IF THE TRIAL JUDGE IS CONVINCED, BY EVIDENCE SUBMITTED IN OPEN
COURT AND SUBJECT TO CROSS-EXAMINATION, THAT THE OFFICERS DID RELY IN
GOOD FAITH UPON CREDIBLE INFORMATION SUPPLIED BY A RELIABLE INFORMANT. 
(FN5)  THIS ILLINOIS EVIDENTIARY RULE IS CONSISTENT WITH THE LAW OF
MANY OTHER STATES.  (FN6)  IN CALIFORNIA, THE STATE LEGISLATURE IN 1965
ENACTED A STATUTE ADOPTING JUST SUCH A RULE FOR CASES LIKE THE ONE
BEFORE US: 

"IN ANY PRELIMINARY HEARING, CRIMINAL TRIAL, OR OTHER CRIMINAL
PROCEEDING, FOR VIOLATION OF ANY PROVISION OF DIVISION 10 (COMMENCING
WITH SECTION 11000) OF THE HEALTH AND SAFETY CODE, EVIDENCE OF
INFORMATION COMMUNICATED TO A PEACE OFFICER BY A CONFIDENTIAL
INFORMANT, WHO IS NOT A MATERIAL WITNESS TO THE GUILT OR INNOCENCE OF
THE ACCUSED OF THE OFFENSE CHARGED, SHALL BE ADMISSIBLE ON THE ISSUE OF
REASONABLE CAUSE TO MAKE AN ARREST OR SEARCH WITHOUT REQUIRING THAT THE
NAME OR IDENTITY OF THE INFORMANT BE DISCLOSED IF THE JUDGE OR
MAGISTRATE IS SATISFIED, BASED UPON EVIDENCE PRODUCED IN OPEN COURT,
OUT OF THE PRESENCE OF THE JURY, THAT SUCH INFORMATION WAS RECEIVED
FROM A RELIABLE INFORMANT AND IN HIS DISCRETION DOES NOT REQUIRE SUCH
DISCLOSURE."  CALIFORNIA EVID. CODE SEC. 1042(C).  (FN7) 

THE REASONING OF THE SUPREME COURT OF NEW JERSEY IN JUDICIALLY
ADOPTING THE SAME BASIC EVIDENTIARY RULE WAS INSTRUCTIVELY EXPRESSED BY
CHIEF JUSTICE WEINTRAUB IN STATE V. BURNETT, 42 N.J. 377, 201 A.2D 39: 

"IF A DEFENDANT MAY INSIST UPON DISCLOSURE OF THE INFORMANT IN ORDER
TO TEST THE TRUTH OF THE OFFICER'S STATEMENT THAT THERE IS AN INFORMANT
OR AS TO WHAT THE INFORMANT RELATED OR AS TO THE INFORMANT'S
RELIABILITY, WE CAN BE SURE THAT EVERY DEFENDANT WILL DEMAND
DISCLOSURE.  HE HAS NOTHING TO LOSE AND THE PRIZE MAY BE THE
SUPPRESSION OF DAMAGING EVIDENCE IF THE STATE CANNOT AFFORD TO REVEAL
ITS SOURCE, AS IS SO OFTEN THE CASE.  AND SINCE THERE IS NO WAY TO TEST
THE GOOD FAITH OF A DEFENDANT WHO PRESSES THE DEMAND, WE MUST ASSUME
THE ROUTINE DEMAND WOULD HAVE TO BE ROUTINELY GRANTED.  THE RESULT
WOULD BE THAT THE STATE COULD USE THE INFORMANT'S INFORMATION ONLY AS A
LEAD AND COULD SEARCH ONLY IF IT COULD GATHER ADEQUATE EVIDENCE OF
PROBABLE CAUSE APART FROM THE INFORMANT'S DATA.  PERHAPS THAT APPROACH
WOULD SHARPEN INVESTIGATORIAL TECHNIQUES, BUT WE DOUBT THAT THERE WOULD
BE ENOUGH TALENT AND TIME TO COPE WITH CRIME UPON THAT BASIS.  RATHER
WE ACCEPT THE PREMISE THAT THE INFORMER IS A VITAL PART OF SOCIETY'S
DEFENSIVE ARSENAL.  THE BASIC RULE PROTECTING HIS IDENTITY RESTS UPON
THAT BELIEF. 

     *         *   *         *         * 

"WE MUST REMEMBER ALSO THAT WE ARE NOT DEALING WITH THE TRIAL OF THE
CRIMINAL CHARGE ITSELF.  THERE THE NEED FOR A TRUTHFUL VERDICT
OUTWEIGHTS SOCIETY'S NEED FOR THE INFORMER PRIVILEGE.  HERE, HOWEVER,
THE ACCUSED SEEKS TO AVOID THE TRUTH.  THE VERY PURPOSE OF A MOTION TO
SUPPRESS IS TO ESCAPE THE INCULPATORY THRUST OF EVIDENCE IN HAND, NOT
BECAUSE ITS PROBATIVE FORCE IS DILUTED IN THE LEAST BY THE MODE OF
SEIZURE, BUT RATHER AS A SANCTION TO COMPEL ENFORCEMENT OFFICERS TO
RESPECT THE CONSTITUTIONAL SECURITY OF ALL OF US UNDER THE FOURTH
AMENDMENT.  STATE V. SMITH, 37 N.J. 481, 486 (1962).  IF THE MOTION TO
SUPPRESS IS DENIED, DEFENDANT WILL STILL BE JUDGED UPON THE UNTARNISHED
TRUTH. 

     *         *         *        *         * 

"THE FOURTH AMENDMENT IS SERVED IF A JUDICIAL MIND PASSES UPON THE
EXISTENCE OF PROBABLE CAUSE.  WHERE THE ISSUE IS SUBMITTED UPON AN
APPLICATION FOR A WARRANT, THE MAGISTRATE IS TRUSTED TO EVALUATE THE
CREDIBILITY OF THE AFFIANT IN AN EX PARTE PROCEEDING.  AS WE HAVE SAID,
THE MAGISTRATE IS CONCERNED, NOT WITH WHETHER THE INFORMANT LIED, BUT
WITH WHETHER THE AFFIANT IS TRUTHFUL IN HIS RECITATION OF WHAT HE WAS
TOLD.  IF THE MAGISTRATE DOUBTS THE CREDIBILITY OF THE AFFIANT, HE MAY
REQUIRE THAT THE INFORMANT BE IDENTIFIED OR EVEN PRODUCED.  IT SEEMS TO
US THAT THE SAME APPROACH IS EQUALLY SUFFICIENT WHERE THE SEARCH WAS
WITHOUT A WARRANT, THAT IS TO SAY, THAT IT SHOULD REST ENTIRELY WITH
THE JUDGE WHO HEARS THE MOTION TO SUPPRESS TO DECIDE WHETHER HE NEEDS
SUCH DISCLOSURE AS TO THE INFORMANT IN ORDER TO DECIDE WHETHER THE
OFFICER IS A BELIEVABLE WITNESS."  42 N.J., AT 385-388, 201 A.2D, AT 43
45. 

WHAT ILLINOIS AND HER SISTER STATES HAVE DONE IS NO MORE THAN
RECOGNIZE A WELL-ESTABLISHED TESTIMONIAL PRIVILEGE, LONG FAMILIAR TO
THE LAW OF EVIDENCE.  PROFESSOR WIGMORE, NOT KNOWN AS AN ENTHUSIASTIC
ADVOCATE OF TESTIMONIAL PRIVILEGES GENERALLY,  (FN8)  HAS DESCRIBED
THAT PRIVILEGE IN THESE WORDS:    "A GENUINE PRIVILEGE, ON  ...
FUNDAMENTAL PRINCIPLE  ...  , MUST BE RECOGNIZED FOR THE IDENTITY OF
PERSONS SUPPLYING THE GOVERNMENT WITH INFORMATION CONCERNING THE
COMMISSION OF CRIMES.  COMMUNICATIONS OF THIS KIND OUGHT TO RECEIVE
ENCOURAGEMENT.  THEY ARE DISCOURAGED IF THE INFORMER'S IDENTITY IS
DISCLOSED.  WHETHER AN INFORMER IS MOTIVATED BY GOOD CITIZENSHIP,
PROMISE OF LENIENCY OR PROSPECT OF PECUNIARY REWARD, HE WILL USUALLY
CONDITION HIS COOPERATION ON AN ASSURANCE OF ANONYMITY - TO PROTECT
HIMSELF AND HIS FAMILY FROM HARM, TO PRECLUDE ADVERSE SOCIAL REACTIONS
AND TO AVOID THE RISK OF DEFAMATION OR MALICIOUS PROSECUTION ACTIONS
AGAINST HIM.  THE GOVERNMENT ALSO HAS AN INTEREST IN NONDISCLOSURE OF
THE IDENTITY OF ITS INFORMERS.  LAW ENFORCEMENT OFFICERS OFTEN DEPEND
UPON PROFESSIONAL INFORMERS TO FURNISH THEM WITH A FLOW OF INFORMATION
ABOUT CRIMINAL ACTIVITIES.  REVELATION OF THE DUAL ROLE PLAYED BY SUCH
PERSONS ENDS THEIR USEFULNESS TO THE GOVERNMENT AND DISCOURAGES OTHERS
FROM ENTERING INTO A LIKE RELATIONSHIP. 

"THAT THE GOVERNMENT HAS THIS PRIVILEGE IS WELL ESTABLISHED, AND ITS
SOUNDNESS CANNOT BE QUESTIONED."  8 WIGMORE, EVIDENCE SEC 2374
(MCNAUGHTON REV. 1961). 

IN THE FEDERAL COURTS THE RULES OF EVIDENCE IN CRIMINAL TRIALS 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."  (FN9)  THIS COURT, THEREFORE, HAS THE ULTIMATE TASK
OF DEFINING THE SCOPE TO BE ACCORDED TO THE VARIOUS COMMON LAW
EVIDENTIARY PRIVILEGES IN THE TRIAL OF FEDERAL CRIMINAL CASES.  SEE
HAWKINS V. UNITED STATES, 358 U.S. 74.  THIS IS A TASK WHICH IS QUITE
DIFFERENT, OF COURSE, FROM THE RESPONSIBILITY OF CONSTITUTIONAL
ADJUDICATION.  IN THE EXERCISE OF THIS SUPERVISORY JURISDICTION THE
COURT HAD OCCASION 10 YEARS AGO, IN ROVIARO V. UNITED STATES, 353 U.S.
53, TO GIVE THOROUGH CONSIDERATION TO ONE ASPECT OF THE INFORMER'S
PRIVILEGE, THE PRIVILEGE ITSELF HAVING LONG BEEN RECOGNIZED IN THE
FEDERAL JUDICIAL SYSTEM.  (FN10) 

THE ROVIARO CASE INVOLVED THE INFORMER'S PRIVILEGE, NOT AT A
PRELIMINARY HEARING TO DETERMINE PROBABLE CAUSE FOR AN ARREST OR
SEARCH, BUT AT THE TRIAL ITSELF WHERE THE ISSUE WAS THE FUNDAMENTAL ONE
OF INNOCENCE OR GUILT.  THE PETITIONER THERE HAD BEEN BROUGHT TO TRIAL
UPON A TWO-COUNT FEDERAL INDICTMENT CHARGING SALE AND TRANSPORTATION OF
NARCOTICS.  ACCORDING TO THE PROSECUTION'S EVIDENCE, THE INFORMER HAD
BEEN AN ACTIVE PARTICIPANT IN THE CRIME.  HE "HAD TAKEN A MATERIAL PART
IN BRINGING ABOUT THE POSSESSION OF CERTAIN DRUGS BY THE ACCUSED, HAD
BEEN PRESENT WITH THE ACCUSED AT THE OCCURRENCE OF THE ALLEGED CRIME,
AND MIGHT BE A MATERIAL WITNESS AS TO WHETHER THE ACCUSED KNOWINGLY
TRANSPORTED THE DRUGS AS CHARGED."  353 U.S., AT 55.  THE TRIAL COURT
NONETHELESS DENIED A DEFENSE MOTION TO COMPEL THE PROSECUTION TO
DISCLOSE THE INFORMER'S IDENTITY. 

THIS COURT HELD THAT WHERE, IN AN ACTUAL TRIAL OF A FEDERAL CRIMINAL
CASE: 

"THE DISCLOSURE OF AN INFORMER'S IDENTITY  ...  IS RELEVANT AND
HELPFUL TO THE DEFENSE OF AN ACCUSED, OR IS ESSENTIAL TO A FAIR
DETERMINATION OF A CAUSE, THE PRIVILEGE MUST GIVE WAY.  IN THESE
SITUATIONS THE TRIAL COURT MAY REQUIRE DISCLOSURE AND, IF THE
GOVERNMENT WITHHOLDS THE INFORMATION, DISMISS THE ACTION  ...  . 

     *         * *         *         * 

"WE BELIEVE THAT NO FIXED RULE WITH RESPECT TO DISCLOSURE IS
JUSTIFIABLE.  THE PROBLEM IS ONE INDIVIDUAL'S RIGHT TO PREPARE HIS
DEFENSE.  WHETHER A PROPER BALANCE RENDERS NONDISCLOSURE ERRONEOUS MUST
DEPEND ON THE PARTICULAR CIRCUMSTANCES OF EACH CASE, TAKING INTO
CONSIDERATION THE CRIME CHARGED, THE POSSIBLE DEFENSES, THE POSSIBLE
SIGNIFICANCE OF THE INFORMER'S TESTIMONY, AND OTHER RELEVANT FACTORS." 
353 U.S., AT 60-61, 62. 

THE COURT'S OPINION THEN CAREFULLY REVIEWED THE PARTICULAR
CIRCUMSTANCES OF ROVIARO'S TRIAL, POINTING OUT THAT THE INFORMER'S
"POSSIBLE TESTIMONY WAS HIGHLY RELEVANT  ...  ," THAT HE "MIGHT HAVE
DISCLOSED AN ENTRAPMENT  ...  ," "MIGHT HAVE THROWN DOUBT UPON
PETITIONER'S IDENTITY OR ON THE IDENTITY OF THE PACKAGE  ...  ," "MIGHT
HAVE TESTIFIED TO PETITIONER'S POSSIBLE LACK OF KNOWLEDGE OF THE
CONTENTS OF THE PACKAGE THAT HE 'TRANSPORTED'  ...  ," AND THAT THE
"INFORMER WAS THE SOLE PARTICIPANT, OTHER THAN THE ACCUSED, IN THE
TRANSACTION CHARGED."  353 U.S., AT 63-64.  THE COURT CONCLUDED "THAT,
UNDER THESE CIRCUMSTANCES, THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
IN PERMITTING THE GOVERNMENT TO WITHHOLD THE IDENTITY OF ITS UNDERCOVER
EMPLOYEE IN THE FACE OF REPEATED DEMANDS BY THE ACCUSED FOR HIS
DISCLOSURE."  353 U.S., AT 65. 

WHAT ROVIARO THUS MAKES CLEAR IS THAT THIS COURT WAS UNWILLING TO
IMPOSE ANY ABSOLUTE RULE REQUIRING DISCLOSURE OF AN INFORMER'S IDENTITY
EVEN IN FORMULATING EVIDENTIARY RULES FOR FEDERAL CRIMINAL TRIALS. 
MUCH LESS HAS THE COURT EVER APPROACHED THE FORMULATION OF A FEDERAL
EVIDENTIARY RULE OF COMPULSORY DISCLOSURE WHERE THE ISSUE IS THE
PRELIMINARY ONE OF PROBABLE CAUSE, AND GUILT OR INNOCENCE IS NOT AT
STAKE.  INDEED, WE HAVE REPEATEDLY MADE CLEAR THAT FEDERAL OFFICERS
NEED NOT DISCLOSE AN INFORMER'S IDENTITY IN APPLYING FOR AN ARREST OR
SEARCH WARRANT.  AS WAS SAID IN UNITED STATES V. VENTRESCA, 380 U.S.
102, 108, WE HAVE "RECOGNIZED THAT "AN AFFIDAVIT MAY BE BASED ON
HEARSAY INFORMATION AND NEED NOT REFLECT THE DIRECT PERSONAL
OBSERVATIONS OF THE AFFIANT,' SO LONG AS THE MAGISTRATE IS 'INFORMED OF
SOME OF THE UNDERLYING CIRCUMSTANCES' SUPPORTING THE AFFIANT'S
CONCLUSIONS AND HIS BELIEF THAT ANY INFORMANT INVOLVED 'WHOSE IDENTITY
NEED NOT BE DISCLOSED  ... WAS "CREDIBLE" OR HIS INFORMATION
"RELIABLE."'  AGUILAR V. TEXAS, SUPRA, AT 114."  SEE ALSO JONES V.
UNITED STATES, 362 U.S. 257, 271-272; RUGENDORF V. UNITED STATES, 376
U.S. 528, 533.  (FN11)  AND JUST THIS TERM WE HAVE TAKEN OCCASION TO
POINT OUT THAT A RULE VIRTUALLY PROHIBITING THE USE OF INFORMERS WOULD
"SEVERELY HAMPER THE GOVERNMENT" IN ENFORCEMENT OF THE NARCOTICS LAWS. 
LEWIS V. UNITED STATES, 385 U.S. 206, 210. 

IN SUM, THE COURT IN THE EXERCISE OF ITS POWER TO FORMULATE
EVIDENTIARY RULES FOR FEDERAL CRIMINAL CASES HAS CONSISTENTLY DECLINED
TO HOLD THAT AN INFORMER'S IDENTITY NEED ALWAYS BE DISCLOSED IN A
FEDERAL CRIMINAL TRIAL, LET ALONE IN A PRELIMINARY HEARING TO DETERMINE
PROBABLE CAUSE FOR AN ARREST OR SEARCH.  YET WE ARE NOW ASKED TO HOLD
THAT THE CONSTITUTION SOMEHOW COMPELS ILLINOIS TO ABOLISH THE
INFORMER'S PRIVILEGE FROM ITS LAW OF EVIDENCE, AND TO REQUIRE
DISCLOSURE OF THE INFORMER'S IDENTITY IN EVERY SUCH PRELIMINARY HEARING
BY AN INFORMER THEY HAD REASON TO TRUST.  THE ARGUMENT IS BASED UPON
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND UPON THE SIXTH
AMENDMENT RIGHT OF CONFRONTATION, APPLICABLE TO THE STATES THROUGH THE
FOURTEENTH AMENDMENT.  POINTER V. TEXAS, 380 U.S. 400.  WE FIND NO
SUPPORT FOR THE PETITIONER'S POSITION IN EITHER OF THOSE CONSTITUTIONAL
PROVISIONS. 

THE ARRESTING OFFICERS IN THIS CASE TESTIFIED, IN OPEN COURT, FULLY
AND IN PRECISE DETAIL AS TO WHAT THE INFORMER TOLD THEM AND AS TO WHY
THEY HAD REASON TO BELIEVE HIS INFORMATION WAS TRUSTWORTHY.  EACH
OFFICER WAS UNDER OATH.  EACH WAS SUBJECTED TO SEARCHING CROSS
EXAMINATION.  THE JUDGE WAS OBVIOUSLY SATISFIED THAT EACH WAS TELLING
THE TRUTH, AND FOR THAT REASON HE EXERCISED THE DISCRETION CONFERRED
UPON HIM BY THE ESTABLISHED LAW OF ILLINOIS TO RESPECT THE INFORMER'S
PRIVILEGE. 

NOTHING IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES A STATE COURT JUDGE IN EVERY SUCH HEARING TO ASSUME THE
ARRESTING OFFICERS ARE COMMITTING PERJURY.  "TO TAKE SUCH A STEP WOULD
BE QUITE BEYOND THE PALE OF THIS COURT'S PROPER FUNCTION IN OUR FEDERAL
SYSTEM.  IT WOULD BE A WHOLLY UNJUSTIFIABLE ENCROACHMENT BY THIS COURT
UPON THE CONSTITUTIONAL POWER OF STATES TO PROMULGATE THEIR OWN RULES
OF EVIDENCE  ...  IN THEIR OWN STATE COURTS  ...  ."  SPENCER V. TEXAS,
385 U.S. 554, 568-569. 

THE PETITIONER DOES NOT EXPLAIN PRECISELY HOW HE THINKS HIS SIXTH
AMENDMENT RIGHT TO CONFRONTATION AND CROSS-EXAMINATION WAS VIOLATED BY
ILLINOIS' RECOGNITION OF THE INFORMER'S PRIVILEGE IN THIS CASE.  IF THE
CLAIM IS THAT THE STATE VIOLATED THE SIXTH AMENDMENT BY NOT PRODUCING
THE INFORMER TO TESTIFY AGAINST THE PETITIONER, THEN WE NEED NO MORE
THAN REPEAT THE COURT'S ANSWER TO THAT CLAIM A FEW WEEKS AGO IN COOPER
V. CALIFORNIA. 

"PETITIONER ALSO PRESENTS THE CONTENTION HERE THAT HE WAS
UNCONSTITUTIONALLY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST
HIM, BECAUSE THE STATE DID NOT PRODUCE THE INFORMANT TO TESTIFY AGAINST
HIM.  THIS CONTENTION WE CONSIDER ABSOLUTELY DEVOID OF MERIT."  ANTE,
P. 58, AT 62, N. 2. 

ON THE OTHER HAND, THE CLAIM MAY BE THAT THE PETITIONER WAS DEPRIVED
OF HIS SIXTH AMENDMENT RIGHT TO CROSS-EXAMINE THE ARRESTING OFFICERS
THEMSELVES, BECAUSE THEIR REFUSAL TO REVEAL THE INFORMER'S IDENTITY WAS
UPHELD.  BUT IT WOULD FOLLOW FROM THIS ARGUMENT THAT NO WITNESS ON
CROSS-EXAMINATION COULD EVER CONSTITUTIONALLY ASSERT A TESTIMONIAL
PRIVILEGE, INCLUDING THE PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION GUARANTEED BY THE CONSTITUTION ITSELF.  WE HAVE NEVER
GIVEN THE SIXTH AMENDMENT SUCH A CONSTRUCTION, AND WE DECLINE TO DO SO
NOW.  AFFIRMED. 

FN1  33 ILL. 2D 66, 210 N.E.2D 161. 

FN2  384 U.S. 949. 

FN3  THE WEATHER WAS "REAL COLD," AND THE PETITIONER TESTIFIED HE
"HAD ON THREE COATS,"  IN ORDER TO CONDUCT THE SEARCH, THE ARRESTING
OFFICERS REQUIRED THE PETITIONER TO REMOVE SOME OF HIS CLOTHING, BUT
EVEN THE PETITIONER'S VERSION OF THE CIRCUMSTANCES OF THE SEARCH DID
NOT DISCLOSE ANY CONDUCT REMOTELY AKIN TO THAT CONDEMNED BY THIS COURT
IN ROCHIN V. CALIFORNIA, 342 U.S. 165. 

FN4  "Q.  WHAT IS THE NAME OF THIS INFORMANT THAT GAVE YOU THIS
INFORMATION? 

"MR. ENGERMAN:  OBJECTION, YOUR HONOR. 

"THE COURT:  STATE FOR THE RECORD THE REASONS FOR YOUR OBJECTION. 

"MR. ENGERMAN:  JUDGE, BASED UPON THE TESTIMONY OF THE OFFICER SO FAR
THAT THEY HAD USED THIS INFORMANT FOR APPROXIMATELY A YEAR, HE HAS
WORKED WITH THIS INDIVIDUAL, IN THE INTEREST OF THE PUBLIC, I SEE NO
REASON WHY THE OFFICER SHOULD BE FORCED TO DISCLOSE THE NAME OF THE
INFORMANT, TO CAUSE HARM OR JEOPARDY TO AN INDIVIDUAL WHO HAS
COOPERATED WITH THE POLICE.  THE CITY OF CHICAGO HAVE A TREMENDOUS
PROBLEM WITH NARCOTICS.  IF THE POLICE ARE NOT ABLE TO WITHHOLD THE
NAME OF THE INFORMANT THEY WILL NOT BE ABLE TO GET INFORMANTS.  THEY
ARE NOT WILLING TO RISK THEIR LIVES IF THEIR NAMES BECOME KNOWN. 

"IN THE INTEREST OF THE CITY AND THE LAW ENFORCEMENT OF THIS
COMMUNITY, I FEEL THE OFFICER SHOULD NOT BE FORCED TO REVEAL THE NAME
OF THE INFORMANT.  AND I ALSO CITE PEOPLE VS. DURR. 

"THE COURT:  I WILL SUSTAIN THAT. 

"MR. ADAM:  Q. WHERE DOES THIS INFORMANT LIVE? 

"MR. ENGERMAN:  OBJECTION, YOUR HONOR, SAME BASIS. 

"THE COURT:  SUSTAINED." 

FN5  PEOPLE V. DURR, 28 ILL. 2D 308, 192 N.E.2D 379; PEOPLE V.
NETTLES, 34 ILL. 2D 52, 213 N.E.2D 536; PEOPLE V. CONNIE, 34 ILL. 2D
353, 215 N.E.2D 280; PEOPLE V. FREEMAN, 34 ILL. 2D 362, 215 N.E.2D 206;
PEOPLE V. MILLER, 34 ILL. 2D 527, 216 N.E.2D 793.  CF. PEOPLE V. PITTS,
26 ILL. 2D 395, 186 N.E.2D 357; PEOPLE V. PARREN, 24 ILL. 2D 572, 182
N.E.2D 662. 

FN6  STATE V. COOKSON, 361 S.W.2D 683 (MO. SUP. CT.); SIMMONS V.
STATE, 198 TENN. 587, 281 S.W.2D 487; PEOPLE V. COFFEY, 12 N.Y.2D 443,
191 N.E.2D 263.  BUT SEE PEOPLE V. MALINSKY, 15 N.Y.2D 86, 209 N.E.2D
694.  CF. STELLOH V. LIBAN, 21 WIS. 2D 119, 124 N.W.2D 101; BAKER V.
STATE, 150 SO. 2D 729 (FLA. APP.); STATE V. BOLES, 246 N.C. 83, 97
S.E.2D 476. 

FN7  IN THE PRESENT CASE CALIFORNIA HAS FILED A HELPFUL AMICUS BRIEF,
ADVISING US THAT THE VALIDITY OF THIS PROVISION IS NOW BEFORE THE
SUPREME COURT OF CALIFORNIA.  MARTIN V. SUPERIOR COURT (LA 29078).  THE
STATUTE WAS ENACTED TO MODIFY THAT COURT'S DECISION IN PRIESTLY V.
SUPERIOR COURT, 50 CAL. 2D 812, 330 P.2D 39.  SEE ALSO FORD V. CITY OF
JACKSON, 153 MISS.  616, 121 SO. 278. 

FN8  SEE 8 WIGMORE, EVIDENCE SEC 2192 (MCNAUGHTON REV. 1961). 

FN9  RULE 26, FED. RULES CRIM. PROC. 

FN10  SEE SCHER V. UNITED STATES, 305 U.S. 251; IN RE QUARLES &
BUTLER, 158 U.S. 532, VOGEL V. GRUAZ, 110 U.S. 311. 

FN11  SOME FEDERAL COURTS HAVE APPLIED THE SAME RULE OF NONDISCLOSURE
IN BOTH WARRANT AND NONWARRANT CASES.  SMITH V. UNITED STATES, 123 U.S.
APP. D.C. 202, 358 F.2D 833; JONES V. UNITED STATES, 326 F.2D  124
(C.A. 9TH CIR.), CERT. DENIED, 377 U.S. 956; UNITED STATES V. ONE 1957
FORD RANCHERO PICKUP, 265 F.2D 21 (C.A. 10TH CIR.).  OTHER FEDERAL
COURTS, HOWEVER, HAVE DISTINGUISHED BETWEEN THESE TWO CLASSES OF CASES
AND HAVE REQUIRED THE IDENTIFICATION OF INFORMANTS IN NONWARRANT
CASES.  UNITED STATES V. ROBINSON, 325 F.2D 391 (C.A.2D CIR.); COCHRAN
V. UNITED STATES, 291 F.2D 633 (C.A. 8TH CIR.).  CF. WILSON V. UNITED
STATES, 59 F.2D 390 (C.A. 3D CIR.). SEE COMMENT, INFORMER'S WORD AS THE
BASIS FOR PROBABLE CAUSE IN THE FEDERAL COURTS, 53 CALIF. L. REV. 840
(1965). 

IN DRAWING THIS DISTINCTION SOME OF THE FEDERAL COURTS HAVE RELIED
UPON A DICTUM IN ROVIARO V. UNITED STATES, 353 U.S. 53, 61: 

"MOST OF THE FEDERAL CASES INVOLVING THIS LIMITATION ON THE SCOPE OF
THE INFORMER'S PRIVILEGE HAVE ARISEN WHERE THE LEGALITY OF A SEARCH
WITHOUT A WARRANT IS IN ISSUE AND THE COMMUNICATIONS OF AN INFORMER ARE
CLAIMED TO ESTABLISH PROBABLE CAUSE.  IN THESE CASES THE GOVERNMENT HAS
BEEN REQUIRED TO DISCLOSE THE IDENTITY OF THE INFORMANT UNLESS THERE
WAS SUFFICIENT EVIDENCE APART FROM HIS CONFIDENTIAL COMMUNICATION." 

SINCE THERE WAS NO PROBABLE CAUSE ISSUE IN ROVIARO, THE QUOTED
STATEMENT WAS CLEARLY NOT NECESSARY FOR DECISION.  INDEED, AN ABSOLUTE
RULE OF DISCLOSURE FOR PROBABLE CAUSE DETERMINATIONS WOULD CONFLICT
WITH THE CASE-BY-CASE APPROACH UPON WHICH THE ROVIARO DECISION WAS
BASED.  MOREOVER, THE PRECEDENT UPON WHICH THIS DICTUM WAS GROUNDED
FURNISHED ONLY DUBIOUS SUPPORT.  SCHER V. UNITED STATES, 305 U.S. 251,
THE ONLY DECISION OF THIS COURT WHICH WAS CITED, AFFIRMED THE TRIAL
JUDGE'S REFUSAL TO ORDER ARRESTING OFFICERS TO REVEAL THE SOURCE OF
THEIR INFORMATION.    MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE,
MR. JUSTICE BRENNAN AND MR. JUSTICE FORTAS CONCUR, DISSENTING. 

WE HAVE HERE A FOURTH AMENDMENT QUESTION CONCERNING THE VALIDITY OF
AN ARREST.  IF THE POLICE SEE A CRIME BEING COMMITTED THEY CAN OF
COURSE SEIZE THE CULPRIT.  IF A PERSON IS FLEEING THE SCENE OF A CRIME,
THE POLICE CAN STOP HIM.  AND THERE ARE THE CASES OF "HOT PURSUIT" AND
OTHER INSTANCES OF PROBABLE CAUSE WHEN THE POLICE CAN MAKE AN ARREST. 
BUT NORMALLY AN ARREST SHOULD BE MADE ONLY ON A WARRANT ISSUED BY A
MAGISTRATE ON A SHOWING OF "PROBABLE CAUSE, SUPPORTED BY OATH OR
AFFIRMATION," AS REQUIRED BY THE FOURTH AMENDMENT.  AT LEAST SINCE MAPP
V. OHIO, 367 U.S. 643, THE STATES ARE AS MUCH BOUND BY THOSE PROVISIONS
AS IS THE FEDERAL GOVERNMENT.  BUT FOR THE FOURTH AMENDMENT THEY COULD
FASHION THE RULE FOR ARRESTS THAT THE COURT NOW APPROVES.  WITH ALL
DEFERENCE, THE REQUIREMENTS OF THE FOURTH AMENDMENT NOW MAKE THAT
CONCLUSION UNCONSTITUTIONAL. 

NO WARRANT FOR THE ARREST OF PETITIONER WAS OBTAINED IN THIS CASE. 
THE POLICE, INSTEAD OF GOING TO A MAGISTRATE AND MAKING A SHOWING OF
"PROBABLE CAUSE" BASED ON THEIR INFORMANT'S TIP-OFF, ACTED ON THEIR
OWN.  THEY, RATHER THAN THE MAGISTRATE, BECAME THE ARBITERS OF
"PROBABLE CAUSE."  THE COURT'S APPROVAL OF THAT PROCESS EFFECTIVELY
REWRITES THE FOURTH AMENDMENT. 

IN ROVIARO V. UNITED STATES, 353 U.S. 53, 61, WE HELD THAT WHERE A
SEARCH WITHOUT A WARRANT IS MADE ON THE BASIS OF COMMUNICATIONS OF AN
INFORMER AND THE GOVERNMENT CLAIMS THE POLICE HAD "PROBABLE CAUSE,"
DISCLOSURE OF THE IDENTITY OF THE INFORMANT IS NORMALLY REQUIRED.  IN
NO OTHER WAY CAN THE DEFENSE SHOW AN ABSENCE OF "PROBABLE CAUSE."  BY
REASON OF MAPP V. OHIO, SUPRA, THAT RULE IS NOW APPLICABLE TO THE
STATES. 

IN BECK V. OHIO, 379 U.S. 89, 96, WE SAID: 

"AN ARREST WITHOUT A WARRANT BYPASSES THE SAFEGUARDS PROVIDED BY AN
OBJECTIVE PREDETERMINATION OF PROBABLE CAUSE, AND SUBSTITUTES INSTEAD
THE FAR LESS RELIABLE PROCEDURE OF AN AFTER-THE-EVENT JUSTIFICATION FOR
THE ARREST OR SEARCH, TOO LIKELY TO BE SUBTLY INFLUENCED BY THE
FAMILIAR SHORTCOMINGS OF HINDSIGHT JUDGMENT." 

FOR THAT REASON WE HAVE WEIGHTED ARRESTS WITH WARRANTS MORE HEAVILY
THAN ARRESTS WITHOUT WARRANTS.   SEE UNITED STATES V. VENTRESCA, 380
U.S. 102, 106.  ONLY THROUGH THE INFORMER'S TESTIMONY CAN ANYONE OTHER
THAN THE ARRESTING OFFICERS DETERMINE "THE PERSUASIVENESS OF THE FACTS
RELIED ON  ... TO SHOW PROBABLE CAUSE."  AGUILAR V. TEXAS, 378 U.S.
108, 113.  (FN1)  WITHOUT THAT DISCLOSURE NEITHER WE NOR THE LOWER
COURTS CAN EVER KNOW WHETHER THERE WAS "PROBABLE CAUSE" FOR THE
ARREST.  UNDER THE PRESENT DECISION WE LEAVE THE FOURTH AMENDMENT
EXCLUSIVELY IN THE CUSTODY OF THE POLICE.  AS STATED BY MR. JUSTICE
SCHAEFER DISSENTING IN PEOPLE V. DURR, 28 ILL. 2D 308, 318, 192 N.E.2D
379, 384, UNLESS THE IDENTITY OF THE INFORMER IS DISCLOSED "THE
POLICEMAN HIMSELF CONCLUSIVELY DETERMINES THE VALIDITY OF HIS OWN
ARREST."  THAT WAS THE VIEW OF THE SUPREME COURT OF CALIFORNIA IN
PRIESTLY V. SUPERIOR COURT, 50 CAL. 2D 812, 818, 330 P.2D 39, 43: 

"ONLY BY REQUIRING DISCLOSURE AND GIVING THE DEFENDANT AN OPPORTUNITY
TO PRESENT CONTRARY OR IMPEACHING EVIDENCE AS TO THE TRUTH OF THE
OFFICER'S TESTIMONY AND THE REASONABLENESS OF HIS RELIANCE ON THE
INFORMER CAN THE COURT MAKE A FAIR DETERMINATION OF THE ISSUE.  SUCH A
REQUIREMENT DOES NOT UNREASONABLY DISCOURAGE THE FREE FLOW OF
INFORMATION TO LAW ENFORCEMENT OFFICERS OR OTHERWISE IMPEDE LAW
ENFORCEMENT.  ACTUALLY ITS EFFECT IS TO COMPEL INDEPENDENT
INVESTIGATIONS TO VERIFY INFORMATION GIVEN BY AN INFORMER OR TO UNCOVER
OTHER FACTS THAT ESTABLISH REASONABLE CAUSE TO MAKE AN ARREST OR
SEARCH." 

THERE IS NO WAY TO DETERMINE THE RELIABILITY OF OLD RELIABLE, THE
INFORMER, UNLESS HE IS PRODUCED AT THE TRIAL AND CROSS-EXAMINED. 
UNLESS HE IS PRODUCED, THE FOURTH AMENDMENT IS ENTRUSTED TO THE TENDER
MERCIES OF THE POLICE.  (FN2)  WHAT WE DO TODAY IS TO ENCOURAGE ARRESTS
AND SEARCHES WITHOUT WARRANTS.  THE WHOLE MOMENTUM OF CRIMINAL LAW
ADMINISTRATION SHOULD BE IN PRECISELY THE OPPOSITE DIRECTION, IF THE
FOURTH AMENDMENT IS TO REMAIN A VITAL FORCE.  EXCEPT IN RARE AND
EMERGENCY CASES, IT REQUIRES MAGISTRATES TO MAKE THE FINDINGS OF
"PROBABLE CAUSE."  WE SHOULD BE MINDFUL OF ITS COMMAND THAT A JUDICIAL
MIND SHOULD BE INTERPOSED BETWEEN THE POLICE AND THE CITIZEN.  WE
SHOULD ALSO BE MINDFUL THAT "DISCLOSURE, RATHER THAN SUPPRESSION, OF
RELEVANT MATERIALS ORDINARILY PROMOTES THE PROPER ADMINISTRATION OF
CRIMINAL JUSTICE."  DENNIS V. UNITED STATES, 384 U.S. 855, 870. 

FN1  QUOTING FROM GIORDENELLO V. UNITED STATES, 357 U.S. 480, 486. 

FN2  IT IS NOT UNKNOWN FOR THE ARRESTING OFFICER TO MISREPRESENT HIS
CONNECTION WITH THE INFORMER, HIS KNOWLEDGE OF THE INFORMER'S
RELIABILITY, OR THE INFORMATION ALLEGEDLY OBTAINED FROM THE INFORMER. 
SEE, E.G., UNITED STATES V. PEARCE, 275 F.2D 318, 322. 
..END :














NEELY V. EBY CONSTRUCTION CO. 386 U.S. 317 


NO. 12.  ARGUED JANUARY 16-17, 1967.  - DECIDED MARCH 20, 1967.  - 344
F.2D 482, AFFIRMED. 


AT THE CLOSE OF PETITIONER'S EVIDENCE AND AGAIN AT THE CLOSE OF ALL
EVIDENCE IN THIS DIVERSITY ACTION FOR DAMAGES FOR WRONGFUL DEATH OF
PETITIONER'S FATHER, RESPONDENT MOVED FOR A DIRECTED VERDICT.  THE
TRIAL JUDGE DENIED THE MOTIONS AND SUBMITTED THE CASE TO THE JURY,
WHICH RETURNED A VERDICT FOR PETITIONER.  RESPONDENT THEN MOVED FOR
JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR A NEW
TRIAL, UNDER FEDERAL RULE OF CIVIL PROCEDURE 50(B).  THE TRIAL COURT
DENIED THE MOTIONS AND ENTERED JUDGMENT FOR PETITIONER ON THE VERDICT. 
RESPONDENT APPEALED, CLAIMING THAT ITS MOTION FOR JUDGMENT N.O.V.
SHOULD HAVE BEEN GRANTED, WHILE PETITIONER URGED THAT THE VERDICT BE
UPHELD.  THE COURT OF APPEALS HELD THAT THE EVIDENCE WAS INSUFFICIENT
TO ESTABLISH EITHER RESPONDENT'S NEGLIGENCE OR PROXIMATE CAUSE AND
REVERSED THE JUDGMENT OF THE DISTRICT COURT "WITH INSTRUCTIONS TO
DISMISS THE ACTION."  PETITIONER DID NOT FILE A PETITION FOR REHEARING
IN THE COURT OF APPEALS BUT SOUGHT A WRIT OF CERTIORARI PRESENTING THE
QUESTION WHETHER THE COURT OF APPEALS COULD DIRECT DISMISSAL OF THE
ACTION.  THE ORDER GRANTING CERTIORARI DIRECTED THE PARTIES TO CONSIDER
THE QUESTION WHETHER RULE 50(D) AND CERTAIN OF THIS COURT'S DECISIONS
PERMIT SUCH DISPOSITION BY THE COURT OF APPEALS DESPITE RULE 50(C)(2),
WHICH GIVES A PARTY WHOSE JURY VERDICT IS SET ASIDE BY A TRIAL COURT 10
DAYS TO INVOKE THE TRIAL COURT'S DISCRETION TO ORDER A NEW TRIAL. 
HELD: 

1.  APPELLATE COURTS ARE NOT BARRED BY THE SEVENTH AMENDMENT'S RIGHT
OF JURY TRIAL FROM GRANTING A JUDGMENT N.O.V. AND THE STATUTORY GRANT
OF APPELLATE JURISDICTION TO THE COURTS OF APPEALS IS BROAD ENOUGH TO
INCLUDE THE POWER TO DIRECT ENTRY OF A JUDGMENT N.O.V. ON APPEAL.  P.
322. 

2.  RULE 50(D) IS APPLICABLE WHERE, AS HERE, THE TRIAL COURT DENIED A
MOTION FOR JUDGMENT N.O.V.; THE RULE EXPRESSLY PRESERVES TO THE PARTY
PREVAILING IN THE DISTRICT COURT THE RIGHT TO URGE THAT THE COURT OF
APPEALS GRANT A NEW TRIAL IF THE JURY'S VERDICT BE SET ASIDE ON
APPEAL.  P. 323. 

(A)  RULE 50(D), WHICH IS PERMISSIVE IN THE NATURE OF ITS DIRECTIONS
TO THE COURTS OF APPEALS, CONTAINS NOTHING INDICATING THAT SUCH COURTS
MAY NOT DIRECT ENTRY OF JUDGMENT N.O.V. IN APPROPRIATE CASES.  P. 324. 

(B)  WHEN THE TRIAL COURT DENIED JUDGMENT, N.O.V. AND RESPONDENT
APPEALED, JURISDICTION OVER THE CASE PASSED TO THE COURT OF APPEALS AND
PETITIONER'S RIGHT TO SEEK A NEW TRIAL IN THE TRIAL COURT AFTER HER
JURY VERDICT WAS SET ASIDE BECAME DEPENDENT ON THE DISPOSITION BY THE
COURT OF APPEALS UNDER RULE 50(D).  P. 324. 

3.  WHILE JUDGMENT FOR A DEFENDANT-APPELLANT SHOULD NOT BE ORDERED
WHERE A PLAINTIFF-APPELLEE URGES GROUND FOR A NONSUIT OR A NEW TRIAL
WHICH SHOULD MORE APPROPRIATELY BE ADDRESSED TO THE TRIAL COURT, SUCH
CONSIDERATIONS DO NOT JUSTIFY AN IRONCLAD RULE THAT THE COURTS OF
APPEALS SHOULD NEVER ORDER DISMISSAL OR JUDGMENT FOR DEFENDANT WHEN THE
PLAINTIFF'S VERDICT HAS BEEN SET ASIDE ON APPEAL.   PP. 325-326. 

4.  RULE 50(D) PROVIDES A PLAINTIFF-APPELLEE WITH ADEQUATE
OPPORTUNITY TO PRESENT HIS GROUNDS FOR A NEW TRIAL IN THE EVENT HIS
VERDICT IS SET ASIDE ON APPEAL.  IN ADDITION, HE MAY BRING HIS GROUNDS
FOR A NEW TRIAL TO THE TRIAL COURT'S ATTENTION WHEN THE DEFENDANT FIRST
MAKES A MOTION FOR JUDGMENT N.O.V., OR HE MAY SEEK REHEARING FROM THE
COURT OF APPEALS AFTER HIS JUDGMENT HAS BEEN REVERSED.  PP. 328-329. 

5.  PETITIONER DID NOT SUGGEST THAT SHE HAD A VALID GROUND FOR A NEW
TRIAL UNTIL HER BRIEF TO THIS COURT, AND THERE IS NO CAUSE FOR
DEVIATING FROM THE POLICY OF NOT CONSIDERING ISSUES NOT PRESENTED TO
THE COURT OF APPEALS AND NOT PROPERLY PRESENTED FOR REVIEW HERE.  P.
330. 

NEELY V. MARTIN K. EBY CONSTRUCTION CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS DIVERSITY ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLORADO ALLEGING THAT RESPONDENT'S
NEGLIGENT CONSTRUCTION, MAINTENANCE, AND SUPERVISION OF A SCAFFOLD
PLATFORM USED IN THE CONSTRUCTION OF A MISSILE SILO NEAR ELIZABETH,
COLORADO, HAD PROXIMATELY CAUSED HER FATHER'S FATAL PLUNGE FROM THE
PLATFORM DURING THE COURSE OF HIS EMPLOYMENT AS NIGHT SILO CAPTAIN FOR
SVERDRUP & PARCEL, AN ENGINEERING FIRM ENGAGED IN THE CONSTRUCTION OF A
MISSILE LAUNCHER SYSTEM IN THE SILO.  AT THE CLOSE OF THE PETITIONER'S
EVIDENCE AND AGAIN AT THE CLOSE OF ALL THE EVIDENCE, RESPONDENT MOVED
FOR A DIRECTED VERDICT.  THE TRIAL JUDGE DENIED BOTH MOTIONS AND
SUBMITTED THE CASE TO A JURY, WHICH RETURNED A VERDICT FOR PETITIONER
FOR $25,000. 

RESPONDENT THEN MOVED FOR JUDGMENT NOTWITHSTANDING THE JURY'S VERDICT
OR, IN THE ALTERNATIVE, FOR A NEW TRIAL, IN ACCORDANCE WITH RULE 50(B),
FEDERAL RULES OF CIVIL PROCEDURE.  (FN1)  THE TRIAL COURT DENIED THE
MOTIONS AND ENTERED JUDGMENT FOR PETITIONER ON THE JURY'S VERDICT. 
RESPONDENT APPEALED, CLAIMING THAT ITS MOTION FOR JUDGMENT N.O.V.
SHOULD HAVE BEEN GRANTED.  PETITIONER, AS APPELLEE, URGED ONLY THAT THE
JURY'S VERDICT SHOULD BE UPHELD. 

THE COURT OF APPEALS HELD THAT THE EVIDENCE AT TRIAL WAS INSUFFICIENT
TO ESTABLISH EITHER NEGLIGENCE BY RESPONDENT OR PROXIMATE CAUSE AND
REVERSED THE JUDGMENT OF THE DISTRICT COURT "WITH INSTRUCTIONS TO
DISMISS THE ACTION."  WITHOUT FILING A PETITION FOR REHEARING IN THE
COURT OF APPEALS, PETITIONER THEN SOUGHT A WRIT OF CERTIORARI,
PRESENTING THE QUESTION WHETHER THE COURT OF APPEALS COULD, CONSISTENT
WITH THE 1963 AMENDMENTS TO RULE 50 OF THE FEDERAL RULES  (FN2)  AND
WITH THE SEVENTH AMENDMENT'S GUARANTEE OF A RIGHT TO JURY TRIAL, DIRECT
THE TRIAL COURT TO DISMISS THE ACTION.  OUR ORDER ALLOWING CERTIORARI
DIRECTED THE PARTIES ATTENTION TO WHETHER RULE 50(D) AND OUR DECISIONS
IN CONE V. WEST VIRGINIA PULP & PAPER CO., 330 U.S. 212; GLOBE LIQUOR
CO. V. SAN ROMAN, 332 U.S. 571; AND WEADE V. DICHMANN, WRIGHT & PUGH,
INC., 337 U.S. 801, PERMIT THIS DISPOSITION BY A COURT OF APPEALS
DESPITE RULE 50(C)(2), WHICH GIVES A PARTY WHOSE JURY VERDICT IS SET
ASIDE BY A TRIAL COURT 10 DAYS IN WHICH TO INVOKE THE TRIAL COURT'S
DISCRETION TO ORDER A NEW TRIAL.  (FN3)  WE AFFIRM. 

UNDER RULE 50(B), IF A PARTY MOVES FOR A DIRECTED VERDICT AT THE
CLOSE OF THE EVIDENCE AND IF THE TRIAL JUDGE ELECTS TO SEND THE CASE TO
THE JURY, THE JUDGE IS "DEEMED" TO HAVE RESERVED DECISION ON THE
MOTION.  IF THE JURY RETURNS A CONTRARY VERDICT, THE PARTY MAY WITHIN
10 DAYS MOVE TO HAVE JUDGMENT ENTERED IN ACCORDANCE WITH HIS MOTION FOR
DIRECTED VERDICT.  THIS PROCEDURE IS CONSISTENT WITH DECISIONS OF THIS
COURT RENDERED PRIOR TO THE ADOPTION OF THE FEDERAL RULES IN 1938. 
COMPARE BALTIMORE & CAROLINA LINE, INC. V. REDMAN, 295 U.S. 654, WITH
SLOCUM V. NEW YORK LIFE INS. CO., 228 U.S. 364, AND AETNA INS. CO. V.
KENNEDY, 301 U.S. 389.  AND IT IS SETTLED THAT RULE 50(B) DOES NOT
VIOLATE THE SEVENTH AMENDMENT'S GUARANTEE OF A JURY TRIAL.  MONTGOMERY
WARD & CO. V. DUNCAN, 311 U.S. 243. 

THE QUESTION HERE IS WHETHER THE COURT OF APPEALS, AFTER REVERSING
THE DENIAL OF A DEFENDANT'S RULE 50(B) MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT, MAY ITSELF ORDER DISMISSAL OR DIRECT ENTRY
OF JUDGMENT FOR DEFENDANT.  AS FAR AS THE SEVENTH AMENDMENT'S RIGHT TO
JURY TRIAL IS CONCERNED, THERE IS NO GREATER RESTRICTION ON THE
PROVINCE OF THE JURY WHEN AN APPELLATE COURT ENTERS JUDGMENT N.O.V.
THAN WHEN A TRIAL COURT DOES; CONSEQUENTLY, THERE IS NO CONSTITUTIONAL
BAR TO AN APPELLATE COURT GRANTING JUDGMENT N.O.V.  SEE BALTIMORE &
CAROLINA LINE, INC. V. REDMAN, SUPRA. LIKEWISE, THE STATUTORY GRANT OF
APPELLATE JURISDICTION TO THE COURTS OF APPEALS IS CERTAINLY BROAD
ENOUGH TO INCLUDE THE POWER TO DIRECT ENTRY OF JUDGMENT N.O.V. ON
APPEAL.  SECTION 2106 OF TITLE 28 PROVIDES THAT, 

"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." 

SEE BRYAN V. UNITED STATES, 388 U.S. 552. 

THIS BRINGS US TO FEDERAL RULES 50(C) AND 50(D), WHICH WERE ADDED TO
RULE 50 IN 1963 TO CLARIFY THE PROPER PRACTICE UNDER THIS RULE.  THOUGH
RULE 50(D) IS MORE PERTINENT TO THE FACTS OF THIS CASE, IT IS USEFUL TO
EXAMINE THESE INTERRELATED PROVISIONS TOGETHER.  RULE 50(C) GOVERNS THE
CASE WHERE A TRIAL COURT HAS GRANTED A MOTION FOR JUDGMENT, N.O.V. RULE
50(C)(1) EXPLAINS THAT, IF THE VERDICT LOSER HAS JOINED A MOTION FOR
NEW TRIAL WITH HIS MOTION FOR JUDGMENT N.O.V., THE TRIAL JUDGE SHOULD
RULE CONDITIONALLY ON THE NEW TRIAL MOTION WHEN HE GRANTS JUDGMENT
N.O.V.  IF HE CONDITIONALLY GRANTS A NEW TRIAL, AND IF THE COURT OF
APPEALS REVERSES HIS GRANT OF JUDGMENT N.O.V., RULE 50(C)(1) PROVIDES
THAT "THE NEW TRIAL SHALL PROCEED UNLESS THE APPELLATE COURT HAS
OTHERWISE ORDERED."  ON THE OTHER HAND, IF THE TRIAL JUDGE
CONDITIONALLY DENIES THE MOTION FOR NEW TRIAL, AND IF HIS GRANT OF
JUDGMENT N.O.V. IS REVERSED ON APPEAL, "SUBSEQUENT PROCEEDINGS SHALL BE
IN ACCORDANCE WITH THE ORDER OF THE APPELLATE COURT."  AS THE ADVISORY
COMMITTEE'S NOTE TO RULE 50(C) MAKES CLEAR.  RULE 50(C)(1) CONTEMPLATES
THAT THE APPELLATE COURT WILL REVIEW ON APPEAL BOTH THE GRANT OF
JUDGMENT N.O.V. AND, IF NECESSARY, THE TRIAL COURT'S CONDITIONAL
DISPOSITION OF THE MOTION FOR NEW TRIAL.  (FN4)  THIS REVIEW
NECESSARILY INCLUDES THE POWER TO GRANT OR TO DENY A NEW TRIAL IN
APPROPRIATE CASES. 

RULE 50(D) IS APPLICABLE TO CASES SUCH AS THIS ONE WHERE THE TRIAL
COURT HAS DENIED A MOTION FOR JUDGMENT N.O.V.  RULE 50(D) EXPRESSLY
PRESERVES TO THE PARTY WHO PREVAILED IN THE DISTRICT COURT THE RIGHT TO
URGE THAT THE COURT OF APPEALS GRANT A NEW TRIAL SHOULD THE JURY'S
VERDICT BE SET ASIDE ON APPEAL.  RULE 50(D) ALSO EMPHASIZES THAT
"NOTHING IN THIS RULE PRECLUDES" THE COURT OF APPEALS "FROM DETERMINING
THAT THE APPELLEE IS ENTITLED TO A NEW TRIAL, OR FROM DIRECTING THE
TRIAL COURT TO DETERMINE WHETHER A NEW TRIAL SHALL BE GRANTED."  QUITE
PROPERLY, THIS RULE RECOGNIZES THAT THE APPELLATE COURT MAY PREFER THAT
THE TRIAL JUDGE PASS FIRST UPON THE APPELLEE'S NEW TRIAL SUGGESTION. 
NEVERTHELESS, CONSIDERATION OF THE NEW TRIAL QUESTION "IN THE FIRST
INSTANCE" IS LODGED WITH THE COURT OF APPEALS.  AND RULE 50(D) IS
PERMISSIVE IN THE NATURE OF ITS DIRECTION TO THE COURT OF APPEALS:  AS
IN RULE 50(C)(1), THERE IS NOTHING IN RULE 50(D) INDICATING THAT THE
COURT OF APPEALS MAY NOT DIRECT ENTRY OF JUDGMENT N.O.V. IN APPROPRIATE
CASES. 

RULE 50(C)(2), N. 2, SUPRA, IS ON ITS FACE INAPPLICABLE TO THE
SITUATION PRESENTED HERE.  THAT RULE REGULATES THE VERDICT WINNER'S
OPPORTUNITY TO MOVE FOR A NEW TRIAL IF THE TRIAL COURT HAS GRANTED A
RULE 50(B) MOTION FOR JUDGMENT N.O.V.  IN THIS CASE, THE TRIAL COURT
DENIED JUDGMENT N.O.V. AND RESPONDENT APPEALED.  JURISDICTION OVER THE
CASE THEN PASSED TO THE COURT OF APPEALS, AND PETITIONER'S RIGHT TO
SEEK A NEW TRIAL IN THE TRIAL COURT AFTER HER JURY VERDICT WAS SET
ASIDE BECAME DEPENDENT UPON THE DISPOSITION BY THE COURT OF APPEALS
UNDER RULE 50(D). 

AS THE ADVISORY COMMITTEE EXPLAINED, THESE 1963 AMENDMENTS WERE NOT
INTENDED TO "ALTER THE EFFECTS OF A JURY VERDICT OR THE SCOPE OF
APPELLATE REVIEW," AS ARTICULATED IN THE PRIOR DECISIONS OF THIS
COURT.  31 F.R.D. 645.  IN CONE V. WEST VIRGINIA PULP & PAPER CO.,
SUPRA, THE DEFENDANT MOVED FOR A DIRECTED VERDICT, BUT THE TRIAL JUDGE
SENT THE CASE TO THE JURY.  AFTER A JURY VERDICT FOR THE PLAINTIFF, THE
TRIAL COURT DENIED DEFENDANT'S MOTION FOR A NEW TRIAL.  ON APPEAL, THE
COURT OF APPEALS REVERSED AND ORDERED THE ENTRY OF JUDGMENT N.O.V.
THIS COURT REVERSED THE COURT OF APPEALS ON THE GROUND THAT THE
DEFENDANT HAD NOT MOVED FOR JUDGMENT N.O.V. IN THE TRIAL COURT, BUT
ONLY FOR A NEW TRIAL, AND CONSEQUENTLY THE COURT OF APPEALS WAS
PRECLUDED FROM DIRECTING ANY DISPOSITION OTHER THAN A NEW TRIAL.  SEE
ALSO GLOBE LIQUOR CO. V. SAN ROMAN, SUPRA.  IN JOHNSON V. NEW YORK,
N.H.&H.R. CO., 344 U.S. 48, THIS COURT HELD THAT A VERDICT LOSER'S
MOTION TO "SET ASIDE" THE JURY'S VERDICT DID NOT COMPLY WITH RULE
50(B)'S REQUIREMENT OF A TIMELY MOTION FOR JUDGMENT N.O.V. AND
THEREFORE THAT THE COURT OF APPEALS COULD NOT DIRECT ENTRY OF JUDGMENT
N.O.V.  AND IN WEADE V. DICHMANN, WRIGHT & PUGH, INC., SUPRA, WHERE A
PROPER MOTION FOR JUDGMENT N.O.V. WAS MADE AND DENIED IN THE TRIAL
COURT, WE MODIFIED A COURT OF APPEALS DECISION DIRECTING ENTRY OF
JUDGMENT N.O.V. BECAUSE THERE WERE "SUGGESTIONS IN THE COMPLAINT AND
EVIDENCE" OF AN ALTERNATIVE THEORY OF LIABILITY WHICH HAD NOT BEEN
PASSED UPON BY THE JURY AND THEREFORE WHICH MIGHT JUSTIFY THE GRANT OF
A NEW TRIAL.  337 U.S., AT 808-809. 

THE OPINIONS IN THE ABOVE CASES MAKE IT CLEAR THAT AN APPELLATE COURT
MAY NOT ORDER JUDGMENT N.O.V. WHERE THE VERDICT LOSER HAS FAILED
STRICTLY TO COMPLY WITH THE PROCEDURAL REQUIREMENTS OF RULE 50(B), OR
WHERE THE RECORD REVEALS A NEW TRIAL ISSUE WHICH HAS NOT BEEN
RESOLVED.  PART OF THE COURT'S CONCERN HAS BEEN TO PROTECT THE RIGHTS
OF THE PARTY WHOSE JURY VERDICT HAS BEEN SET ASIDE ON APPEAL AND WHO
MAY HAVE VALID GROUNDS FOR A NEW TRIAL, SOME OR ALL OF WHICH SHOULD BE
PASSED UPON BY THE DISTRICT COURT, RATHER THAN THE COURT OF APPEALS,
BECAUSE OF THE TRIAL JUDGE'S FIRST-HAND KNOWLEDGE OF WITNESSES,
TESTIMONY, AND ISSUES - BECAUSE OF HIS "FEEL" FOR THE OVERALL CASE. 
THESE ARE VERY VALID CONCERNS TO WHICH THE COURT OF APPEALS SHOULD BE
CONSTANTLY ALERT.  WHERE A DEFENDANT MOVES FOR N.O.V. IN THE TRIAL
COURT, THE PLAINTIFF MAY PRESENT, IN CONNECTION WITH THAT MOTION OR
WITH A SEPARATE MOTION AFTER N.O.V. IS GRANTED, HIS GROUNDS FOR A NEW
TRIAL OR VOLUNTARY NONSUIT.  CLEARLY, WHERE HE RETAINS HIS VERDICT IN
THE TRIAL COURT AND THE DEFENDANT APPEALS, PLAINTIFF SHOULD HAVE THE
OPPORTUNITY WHICH 50(D) AFFORDS HIM TO PRESS THOSE SAME OR DIFFERENT
GROUNDS IN THE COURT OF APPEALS.  AND OBVIOUSLY JUDGMENT FOR DEFENDANT
APPELLANT SHOULD NOT BE ORDERED WHERE THE PLAINTIFF-APPELLEE URGES
GROUNDS FOR A NONSUIT OR NEW TRIAL WHICH SHOULD MORE APPROPRIATELY BE
ADDRESSED TO THE TRIAL COURT. 

BUT THESE CONSIDERATIONS DO NOT JUSTIFY AN IRONCLAD RULE THAT THE
COURT OF APPEALS SHOULD NEVER ORDER DISMISSAL OR JUDGMENT FOR DEFENDANT
WHEN THE PLAINTIFF'S VERDICT HAS BEEN SET ASIDE ON APPEAL.   SUCH A
RULE WOULD NOT SERVE THE PURPOSE OF RULE 50 TO SPEED LITIGATION AND TO
AVOID UNNECESSARY RETRIALS.  NOR DO ANY OF OUR CASES MANDATE SUCH A
RULE.  INDEED, IN PENCE V. UNITED STATES, 316 U.S. 332, WE AFFIRMED A
COURT OF APPEALS DECISION REVERSING THE TRIAL COURT'S FAILURE TO GRANT
JUDGMENT N.O.V.  AND IN NEW YORK, N.H.&H.R. CO. V. HENAGAN, 364 U.S.
441, THIS COURT ITSELF DIRECTED ENTRY OF JUDGMENT FOR A VERDICT LOSER
WHOSE PROPER REQUEST FOR JUDGMENT N.O.V. HAD BEEN WRONGLY DENIED BY THE
DISTRICT COURT AND BY THE COURT OF APPEALS.  (FN5)  IN VIEW OF THESE
CASES, THE LANGUAGE OF RULE 50(D), AND THE STATUTORY GRANT OF BROAD
APPELLATE JURISDICTION, WE THINK A MORE DISCRIMINATING APPROACH IS
PREFERABLE TO THE INFLEXIBLE RULE FOR WHICH THE PETITIONER CONTENDS. 

THERE ARE, ON THE ONE HAND, SITUATIONS WHERE THE DEFENDANT'S GROUND
FOR SETTING ASIDE THE JURY'S VERDICT RAISE QUESTIONS OF SUBJECT MATTER
JURISDICTION OR DISPOSITIVE ISSUES OF LAW WHICH, IF RESOLVED IN
DEFENDANT'S FAVOR, MUST NECESSARILY TERMINATE THE LITIGATION.  THE
COURT OF APPEALS MAY HOLD IN AN EMPLOYER'S SUIT AGAINST A UNION, FOR
EXAMPLE, THAT THE CASE IS WITHIN THE EXCLUSIVE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD, OR IN A LIBEL SUIT, THAT THE DEFENDANT
WAS ABSOLUTELY PRIVILEGED TO PUBLISH THE DISPUTED STATEMENT.  IN SUCH
SITUATIONS, AND OTHERS LIKE THEM, THERE CAN BE NO REASON WHATSOEVER TO
PREVENT THE COURT OF APPEALS FROM ORDERING DISMISSAL OF THE ACTION OR
THE ENTRY OF JUDGMENT FOR THE DEFENDANT. 

ON THE OTHER HAND, WHERE THE COURT OF APPEALS SETS ASIDE THE JURY'S
VERDICT BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SEND THE CASE TO THE
JURY, IT IS NOT SO CLEAR THAT THE LITIGATION SHOULD BE TERMINATED. 
ALTHOUGH MANY OF THE PLAINTIFF-APPELLEE'S POSSIBLE GROUNDS FOR A NEW
TRIAL, SUCH AS INADEQUACY OF THE VERDICT, WILL NOT SURVIVE A DECISION
THAT THE CASE SHOULD NOT HAVE GONE TO THE JURY IN THE FIRST PLACE,
THERE REMAIN IMPORTANT CONSIDERATIONS WHICH MAY ENTITLE HIM TO A NEW
TRIAL.   THE ERRONEOUS EXCLUSION OF EVIDENCE WHICH WOULD HAVE
STRENGTHENED HIS CASE IS AN IMPORTANT POSSIBILITY.  ANOTHER IS THAT THE
TRIAL COURT ITSELF CAUSED THE INSUFFICIENCY IN PLAINTIFF-APPELLEE'S
CASE BY ERRONEOUSLY PLACING TOO HIGH A BURDEN OF PROOF ON HIM AT
TRIAL.  BUT ISSUES LIKE THESE ARE ISSUES OF LAW WITH WHICH THE COURTS
OF APPEALS REGULARLY AND CHARACTERISTICALLY MUST DEAL.  THE DISTRICT
COURT IN ALL LIKELIHOOD HAS ALREADY RULED ON THESE QUESTIONS IN THE
COURSE OF THE TRIAL AND, IN ANY EVENT, HAS NO SPECIAL ADVANTAGE OR
COMPETENCE IN DEALING WITH THEM.  THEY ARE PRECISELY THE KIND OF ISSUES
THAT THE LOSING DEFENDANT BELOW MAY BRING TO THE COURT OF APPEALS
WITHOUT EVER MOVING FOR A TRIAL IN THE DISTRICT COURT.  CF. GLOBE
LIQUOR CO. V. SAN ROMAN, 332 U.S. 571, 574.  LIKEWISE, IF THE
PLAINTIFF'S VERDICT IS SET ASIDE BY THE TRIAL COURT ON DEFENDANT'S
MOTION FOR JUDGMENT N.O.V., PLAINTIFF MAY BRING THESE VERY GROUNDS
DIRECTLY TO THE COURT OF APPEALS WITHOUT MOVING FOR A NEW TRIAL IN THE
DISTRICT COURT.  (FN6)  FINAL ACTION ON THESE ISSUES NORMALLY RESTS
WITH THE COURT OF APPEALS.    A PLAINTIFF WHOSE JURY VERDICT IS SET
ASIDE BY THE TRIAL COURT ON DEFENDANT'S MOTION FOR JUDGMENT N.O.V. MAY
ASK THE TRIAL JUDGE TO GRANT A VOLUNTARY NONSUIT TO GIVE PLAINTIFF
ANOTHER CHANCE TO FILL A GAP IN HIS PROOF.  CONE V. WEST VIRGINIA PULP
& PAPER CO., 330 U.S., AT 217.  THE PLAINTIFF-APPELLEE SHOULD HAVE THIS
SAME OPPORTUNITY WHEN HIS VERDICT IS SET ASIDE ON APPEAL.  UNDOUBTEDLY,
IN MANY CASES THIS QUESTION WILL CALL FOR AN EXERCISE OF THE TRIAL
COURT'S DISCRETION.  HOWEVER, THERE IS NO SUBSTANTIAL REASON WHY THE
APPELLEE SHOULD NOT PRESENT THE MATTER TO THE COURT OF APPEALS, WHICH
CAN IF NECESSARY REMAND THE CASE TO PERMIT INITIAL CONSIDERATION BY THE
DISTRICT COURT. 

IN THESE CASES WHERE THE CHALLENGE OF THE DEFENDANT-APPELLANT IS TO
THE SUFFICIENCY OF THE EVIDENCE, THE RECORD IN THE COURT OF APPEALS
WILL VERY LIKELY BE A FULL ONE.  THUS, THE APPELLEE WILL NOT BE
REQUIRED TO DESIGNATE AND PRINT ADDITIONAL PARTS OF THE RECORD TO
SUBSTANTIATE HIS GROUND FOR A NONSUIT (OR A NEW TRIAL), AND IT SHOULD
NOT BE AN UNDUE BURDEN IN THE COURSE OF ARGUING FOR HIS VERDICT TO
INDICATE IN HIS BRIEF WHY HE IS ENTITLED TO A NEW TRIAL SHOULD HIS
JUDGMENT BE SET ASIDE.  MOREOVER, THE APPELLEE CAN CHOOSE FOR HIS OWN
CONVENIENCE WHEN TO MAKE HIS CASE FOR A NEW TRIAL:  HE MAY BRING HIS
GROUNDS FOR NEW TRIAL TO THE TRIAL JUDGE'S ATTENTION WHEN DEFENDANT
FIRST MAKES AN N.O.V. MOTION, HE MAY ARGUE THIS QUESTION IN HIS BRIEF
TO THE COURT OF APPEALS, OR HE MAY IN SUITABLE SITUATIONS SEEK
REHEARING FROM THE COURT OF APPEALS AFTER HIS JUDGMENT HAS BEEN
REVERSED. 

IN OUR VIEW, THEREFORE, RULE 50(D) MAKES EXPRESS AND ADEQUATE
PROVISION FOR THE OPPORTUNITY - WHICH THE PLAINTIFF-APPELLEE HAD
WITHOUT THIS RULE - TO PRESENT HIS GROUNDS FOR A NEW TRIAL IN THE EVENT
HIS VERDICT IS SET ASIDE BY THE COURT OF APPEALS.  IF HE DOES SO IN HIS
BRIEF - OR IN A PETITION FOR REHEARING IF THE COURT OF APPEALS HAS
DIRECTED ENTRY OF JUDGMENT FOR APPELLANT - THE COURT OF APPEALS MAY
MAKE FINAL DISPOSITION OF THE ISSUES PRESENTED, EXCEPT THOSE WHICH IN
ITS INFORMED DISCRETION SHOULD BE RESERVED FOR THE TRIAL COURT.  IF
APPELLEE PRESENTS NO NEW TRIAL ISSUES IN HIS BRIEF OR IN A PETITION FOR
REHEARING, THE COURT OF APPEALS MAY, IN ANY EVENT, ORDER A NEW TRIAL ON
ITS OWN MOTION OR REFER THE QUESTION TO THE DISTRICT COURT, BASED ON
FACTORS ENCOUNTERED IN ITS OWN REVIEW OF THE CASE.  COMPARE WEADE V.
DICHMANN, WRIGHT & PUGH, INC., SUPRA. 

IN THE CASE BEFORE US, PETITIONER WON A VERDICT IN THE DISTRICT COURT
WHICH SURVIVED RESPONDENT'S MOTION FOR JUDGMENT N.O.V.  IN THE COURT OF
APPEALS THE ISSUE WAS THE SUFFICIENCY OF THE EVIDENCE AND THAT COURT
SET ASIDE THE VERDICT.  PETITIONER, AS APPELLEE, SUGGESTED NO GROUNDS
FOR A NEW TRIAL IN THE EVENT HER JUDGMENT WAS REVERSED, NOR DID SHE
PETITION FOR REHEARING IN THE COURT OF APPEALS, EVEN THOUGH THAT COURT
HAD DIRECTED A DISMISSAL OF HER CASE.  NEITHER WAS IT SUGGESTED THAT
THE RECORD WAS INSUFFICIENT TO PRESENT ANY NEW TRIAL ISSUES OR THAT ANY
OTHER REASON REQUIRED A REMAND TO THE DISTRICT COURT.  INDEED, IN HER
BRIEF IN THE COURT OF APPEALS, PETITIONER STATED, "THIS LAW SUIT WAS
FAIRLY TRIED AND THE JURY WAS PROPERLY INSTRUCTED."  IT WAS, OF COURSE,
INCUMBENT ON THE COURT OF APPEALS TO CONSIDER THE NEW TRIAL QUESTION IN
THE LIGHT OF ITS OWN EXPERIENCE WITH THE CASE.  BUT WE WILL NOT ASSUME
THAT THE COURT IGNORED ITS DUTY IN THIS RESPECT, ALTHOUGH IT WOULD HAVE
BEEN BETTER HAD ITS OPINION EXPRESSLY DEALT WITH THE NEW TRIAL
QUESTION. 

IN A SHORT PASSAGE AT THE END OF HER BRIEF TO THIS COURT, PETITIONER
SUGGESTED THAT SHE HAS A VALID GROUND FOR A NEW TRIAL IN THE DISTRICT
COURT'S EXCLUSION OF OPINION TESTIMONY BY HER WITNESSES CONCERNING
WHETHER RESPONDENT'S SCAFFOLD PLATFORM WAS ADEQUATE FOR THE JOB IT WAS
INTENDED TO PERFORM.  THIS MATTER WAS NOT RAISED IN THE COURT OF
APPEALS OR IN THE PETITION FOR A WRIT OF CERTIORARI, EVEN THOUGH THE
RELEVANT PORTIONS OF THE TRANSCRIPT WERE MADE A PART OF THE RECORD ON
APPEAL.  UNDER THESE CIRCUMSTANCES, WE SEE NO CAUSE FOR DEVIATING FROM
OUR NORMAL POLICY OF NOT CONSIDERING ISSUES WHICH HAVE NOT BEEN
PRESENTED TO THE COURT OF APPEALS AND WHICH ARE NOT PROPERLY PRESENTED
FOR REVIEW HERE.  SUPREME COURT RULE 40(1)(D)(2).  SEE J.I. CASE CO. V.
BORAK, 377 U.S. 426, 428-429; CALIFORNIA V. TAYLOR, 353 U.S. 553, 556
557, N. 2. 

PETITIONER'S CASE IN THIS COURT IS PITCHED ON THE TOTAL LACK OF POWER
IN THE COURT OF APPEALS TO DIRECT ENTRY OF JUDGMENT FOR RESPONDENT.  WE
HAVE REJECTED THAT ARGUMENT AND THEREFORE AFFIRM.  IT IS SO ORDERED. 

FN1  "(B)  MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.  WHENEVER
A MOTION FOR A DIRECTED VERDICT MADE AT THE CLOSE OF ALL THE EVIDENCE
IS DENIED OR FOR ANY REASON IS NOT GRANTED, THE COURT IS DEEMED TO HAVE
SUBMITTED THE ACTION TO THE JURY SUBJECT TO A LATER DETERMINATION OF
THE LEGAL QUESTIONS RAISED BY THE MOTION.  NOT LATER THAN 10 DAYS AFTER
ENTRY OF JUDGMENT, A PARTY WHO HAS MOVED FOR A DIRECTED VERDICT MAY
MOVE TO HAVE THE VERDICT AND ANY JUDGMENT ENTERED THEREON SET ASIDE AND
TO HAVE JUDGMENT ENTERED IN ACCORDANCE WITH HIS MOTION FOR A DIRECTED
VERDICT  ...  .  A MOTION FOR A NEW TRIAL MAY BE JOINED WITH THIS
MOTION, OR A NEW TRIAL MAY BE PRAYED FOR IN THE ALTERNATIVE.   IF A
VERDICT WAS RETURNED THE COURT MAY ALLOW THE JUDGMENT TO STAND OR MAY
REOPEN THE JUDGMENT AND EITHER ORDER A NEW TRIAL OR DIRECT THE ENTRY OF
JUDGMENT AS IF THE REQUESTED VERDICT HAD BEEN DIRECTED  ...  ." 

FN2  PRINCIPALLY, THE AMENDMENTS ADDED NEW SUBDIVISIONS (C) AND (D)
TO RULE 50: 

"(C)  SAME:  CONDITIONAL RULINGS ON GRANT OF MOTION. 

"(1)  IF THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT,
PROVIDED FOR IN SUBDIVISION (B) OF THIS RULE, IS GRANTED, THE COURT
SHALL ALSO RULE ON THE MOTION FOR A NEW TRIAL, IF ANY, BY DETERMINING
WHETHER IT SHOULD BE GRANTED IF THE JUDGMENT IS THEREAFTER VACATED OR
REVERSED, AND SHALL SPECIFY THE GROUNDS FOR GRANTING OR DENYING THE
MOTION FOR THE NEW TRIAL.  IF THE MOTION FOR A NEW TRIAL IS THUS
CONDITIONALLY GRANTED, THE ORDER THEREON DOES NOT AFFECT THE FINALITY
OF THE JUDGMENT.  IN CASE THE MOTION FOR A NEW TRIAL HAS BEEN
CONDITIONALLY GRANTED AND THE JUDGMENT IS REVERSED ON APPEAL, THE NEW
TRIAL SHALL PROCEED UNLESS THE APPELLATE COURT HAS OTHERWISE ORDERED. 
IN CASE THE MOTION FOR A NEW TRIAL HAS BEEN CONDITIONALLY DENIED, THE
APPELLEE ON APPEAL MAY ASSERT ERROR IN THAT DENIAL; AND IF THE JUDGMENT
IS REVERSED ON APPEAL, SUBSEQUENT PROCEEDINGS SHALL BE IN ACCORDANCE
WITH THE ORDER OF THE APPELLATE COURT. 

"(2)  THE PARTY WHOSE VERDICT HAS BEEN SET ASIDE ON MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT MAY SERVE A MOTION FOR A NEW TRIAL
PURSUANT TO RULE 59 NOT LATER THAN 10 DAYS AFTER ENTRY OF THE JUDGMENT
NOTWITHSTANDING THE VERDICT. 

"(D)  SAME:  DENIAL OF MOTION.  IF THE MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT IS DENIED, THE PARTY WHO PREVAILED ON THAT
MOTION MAY, AS APPELLEE, ASSERT GROUNDS ENTITLING HIM TO A NEW TRIAL IN
THE EVENT THE APPELLATE COURT CONCLUDES THAT THE TRIAL COURT ERRED IN
DENYING THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.  IF THE
APPELLATE COURT REVERSES THE JUDGMENT, NOTHING IN THIS RULE PRECLUDES
IT FROM DETERMINING THAT THE APPELLEE IS ENTITLED TO A NEW TRIAL, OR
FROM DIRECTING THE TRIAL COURT TO DETERMINE WHETHER A NEW TRIAL SHALL
BE GRANTED." 

FN3  PETITIONER PRESENTED THE FOLLOWING QUESTION IN HER PETITION FOR
A WRIT OF CERTIORARI: 

"DO RULES 50(D) AND 38(A) FEDERAL RULES OF CIVIL PROCEDURE AND THE
SEVENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES PRECLUDE THE
COURT OF APPEALS FROM INSTRUCTING THE TRIAL COURT TO DISMISS AN ACTION
WHEREIN THE TRIAL COURT DENIED THE DEFENDANT'S MOTIONS FOR NEW TRIAL
AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND ENTERED JUDGMENT FOR
THE PLAINTIFF?" 

IN VIEW OF THE QUESTION PRESENTED BY PETITIONER AND OUR ORDER
GRANTING CERTIORARI, WE DO NOT CONSIDER WHETHER THE COURT OF APPEALS
CORRECTLY HELD THAT PETITIONER'S EVIDENCE OF NEGLIGENCE AND PROXIMATE
CAUSE WAS INSUFFICIENT TO GO TO THE JURY. 

FN4  THE ADVISORY COMMITTEE EXPLAINS:  "IF THE MOTION FOR NEW TRIAL
HAS BEEN CONDITIONALLY GRANTED  ...  THE PARTY AGAINST WHOM THE
JUDGMENT N.O.V. WAS ENTERED BELOW MAY, AS APPELLANT, BESIDES SEEKING TO
OVERTHROW THAT JUDGMENT, ALSO ATTACK THE CONDITIONAL GRANT OF THE NEW
TRIAL.  AND THE APPELLATE COURT, IF IT REVERSES THE JUDGMENT N.O.V.,
MAY IN AN APPROPRIATE CASE ALSO REVERSE THE CONDITIONAL GRANT OF THE
NEW TRIAL AND DIRECT THAT JUDGMENT BE ENTERED ON THE VERDICT."  31
F.R.D. 645.  SEE LIND V. SCHENLEY INDUS.  INC., 278 F.2D 79 (C.A. 3D
CIR. 1960), CERT, DENIED, 364 U.S. 835; MOIST COLD REFRIGERATOR CO. V.
LOU JOHNSON CO., 249 F.2D 246 (C.A. 9TH CIR. 1957), CERT. DENIED, 356
U.S. 968; BAILEY V.SLENTZ, 189 F.2D 406 (C.A. 10TH CIR. 1951).  SEE
ALSO TRIBBLE V. BRUIN, 279 F. D 424 (C.A. 4TH CIR. 1960). 

FN5  SINCE THE DECISION IN CONE V. WEST VIRGINIA PULP & PAPER CO.,
SIX COURTS OF APPEALS HAVE REVERSED THE DENIAL OF A RULE 50(B) MOTION
AND DIRECTED ENTRY OF JUDGMENT N.O.V. IN ADDITION TO THE TENTH
CIRCUIT'S DECISION IN THE CASE.  SEE, E.G., CAPITAL TRANSIT CO. V.
GAMBLE, 82 U.S. APP. D.C. 57, 160 F.2D 283; STOPPER V. MANHATTAN LIFE
INS. CO., 241 F. D 465 (C.A.  3D CIR.), CERT. DENIED, 355 U.S. 815;
RICHMOND TELEVISION CORP. V UNITED STATES, 354 F.2D 410 (C.A. 4TH
CIR.); MILLS V. MITSUBISHI SHIPPING CO., 358 F.2D 609 (C.A. 5TH CIR.);
LAPPIN V. BALTIMORE & OHIO R. CO. 337 F.2D 399 (C.A. 7TH CIR.);
MASSACHUSETTS MUT. LIFE INS. CO. V. PISTOLESI, 160 F.2D 668 (C.A. 9TH
CIR.). THE OTHER CIRCUITS HAD RENDERED SIMILAR DECISIONS PRIOR TO
CONE.  SEE FERRO CONCRETE CONSTR.  CO. V. UNITED STATES, 112 F.2D 488
(C.A. 1ST CIR.), CERT. DENIED, 311 U.S. 697; BRENNAN V. BALTIMORE &
OHIO R.  CO., 115 F.2D 555 (C.A.2D CIR.), CERT. DENIED, 312 U.S. 685;
CONNECTICUT MUT. LIFE INS. CO. V. LANAHAN, 113 F.2D 935, MODIFYING 112
F. D 375 (C.A. 6TH CIR.); FEDERAL SAV. & LOAN INS.  CORP. V. KEARNEY
TRUST CO., 151 F.2D 720 (C.A. 8TH CIR.). 

FN8  THE ADVISORY COMMITTEE'S NOTE TO RULE 50(C)(2) EXPLAINS: 

"EVEN IF THE VERDICT-WINNER MAKES NO MOTION FOR A NEW TRIAL, HE IS
ENTITLED UPON HIS APPEAL FROM THE JUDGMENT N.O.V. NOT ONLY TO URGE THAT
THAT JUDGMENT SHOULD BE REVERSED AND JUDGMENT ENTERED UPON THE VERDICT,
BUT THAT ERRORS WERE COMMITTED DURING THE TRIAL WHICH AT THE LEAST
ENTITLE HIM TO A NEW TRIAL."  31 F.R.D. 646. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE FORTAS, WHILE AGREEING WITH THE
COURT'S CONSTRUCTION OF RULE 50, WOULD REVERSE THE JUDGMENT BECAUSE IN
THEIR VIEW THE EVIDENCE OF NEGLIGENCE AND PROXIMATE CAUSE WAS
SUFFICIENT TO GO TO THE JURY. 

MR. JUSTICE BLACK, DISSENTING. 

I DISSENT FROM THE COURT'S DECISION IN THIS CASE FOR THREE REASONS:
FIRST, I THINK THE EVIDENCE IN THIS CASE WAS CLEARLY SUFFICIENT TO GO
TO THE JURY ON THE ISSUES OF BOTH NEGLIGENCE AND PROXIMATE CAUSE. 
SECOND, I THINK THAT UNDER OUR PRIOR DECISIONS AND RULE 50, A COURT OF
APPEALS, IN REVERSING A TRIAL COURT'S REFUSAL TO ENTER JUDGMENT N.O.V.
ON THE GROUND OF INSUFFICIENCY OF THE EVIDENCE, IS ENTIRELY POWERLESS
TO ORDER THE TRIAL COURT TO DISMISS THE CASE, THUS DEPRIVING THE
VERDICT WINNER OF ANY OPPORTUNITY TO PRESENT A MOTION FOR NEW TRIAL TO
THE TRIAL JUDGE WHO IS THOROUGHLY FAMILIAR WITH THE CASE.  THIRD, EVEN
IF A COURT OF APPEALS HAS THAT POWER, I FIND IT MANIFESTLY UNFAIR TO
AFFIRM THE COURT OF APPEALS' JUDGMENT HERE WITHOUT GIVING THIS
PETITIONER A CHANCE TO PRESENT HER GROUNDS FOR A NEW TRIAL TO THE COURT
OF APPEALS AS THE COURT TODAY FOR THE FIRST TIME HOLDS SHE MUST. 

                                 I. 

PETITIONER AND RESPONDENT, BOTH IN THEIR BRIEFS ON THE MERITS AND IN
THEIR ORAL ARGUMENT, HAVE VIGOROUSLY AND EXTENSIVELY ADDRESSED
THEMSELVES TO THE QUESTION OF WHETHER THE LOWER COURT WAS CORRECT IN
HOLDING THAT PETITIONER'S EVIDENCE OF NEGLIGENCE AND PROXIMATE CAUSE
WAS INSUFFICIENT TO GO TO THE JURY.  THE COURT, HOWEVER, CONVENIENTLY
AVOIDS FACING THIS ISSUE - WHICH IF RESOLVED IN PETITIONER'S FAVOR,
WOULD COMPLETELY DISPOSE OF THIS CASE  (FN1)  - BY A FOOTNOTE STATEMENT
THAT THIS ISSUE WAS NOT PRESENTED IN THE PETITION FOR CERTIORARI NOT
ENCOMPASSED BY OUR ORDER GRANTING CERTIORARI.  BESIDES THE FACT THAT
THIS SEEMS TO ME TO BE AN OVERLY METICULOUS READING OF THE PETITION FOR
CERTIORARI AND OUR ORDER GRANTING IT,  (FN2)  I SEE NO REASON FOR THE
COURT'S REFUSAL TO DEAL WITH AN ISSUE WHICH IS UNDOUBTEDLY PRESENT IN
THIS CASE EVEN THOUGH NOT SPECIFICALLY EMPHASIZED IN THE PETITION FOR
CERTIORARI.  ALTHOUGH USUALLY THIS COURT WILL NOT CONSIDER QUESTIONS
NOT PRESENTED IN THE PETITION FOR CERTIORARI, OUR RULE 40(1)(D)(2) HAS
LONG PROVIDED THAT "THE COURT, AT ITS OPTION, MAY NOTICE A PLAIN ERROR
NOT PRESENTED," AND THE COURT HAS FREQUENTLY DISPOSED OF CASES BY
DECIDING CRUCIAL ISSUES WHICH THE PARTIES THEMSELVES FAILED TO
PRESENT.  SEE, E.G., BROTHERHOOD OF CARPENTERS V. UNITED STATES, 330
U.S. 395; SILBER V. UNITED STATES, 370 U.S. 717, BOYNTON V. VIRGINIA,
364 U.S. 454.  IF, AS I BELIEVE, THE COURT OF APPEALS WAS WRONG IN
CONCLUDING THAT THE EVIDENCE WAS INSUFFICIENT TO GO TO THE JURY, THEN
ITS REVERSAL OF THE JURY'S VERDICT WAS A VIOLATION OF THE SEVENTH
AMENDMENT, AND CERTAINLY THIS IS THE KIND OF PLAIN CONSTITUTIONAL ERROR
THAT THIS COURT CAN AND SHOULD CORRECT.    THAT THE EVIDENCE WAS MORE
THAN AMPLE TO PROVE BOTH NEGLIGENCE AND PROXIMATE CAUSE IS, I THINK,
INESCAPABLY CLEAR FROM EVEN A CURSORY REVIEW OF THE UNDISPUTED FACTS IN
THIS RECORD.  PETITIONER'S FATHER WAS KILLED WHILE WORKING ON THE
CONSTRUCTION OF A MISSILE-LAUNCHING SILO IN COLORADO.  NEELY WORKED FOR
AN ENGINEERING FIRM AND HIS JOB WAS TO WORK ON CERTAIN CONCRETE BLOCKS
SUSPENDED 130 FEET FROM THE BOTTOM OF THE SILO.  RESPONDENT, A
CARPENTRY FIRM RESPONSIBLE FOR THE CONSTRUCTION, MAINTENANCE, AND
SUPERVISION OF ALL SCAFFOLDING IN THE SILO, CONSTRUCTED A WOODEN
PLATFORM BETWEEN TWO OF THE CONCRETE BLOCKS IN ORDER TO ALLOW WORKERS
SUCH AS NEELY TO GO FROM ONE BLOCK TO THE OTHER.  THE PLATFORM,
HOWEVER, DID NOT COVER THE ENTIRE DISTANCE BETWEEN THE BLOCKS NOR WAS
IT LEVEL WITH THEM.  INSTEAD, IT WAS TWO FEET HORIZONTALLY AWAY FROM
EITHER BLOCK AND WAS RAISED TWO FEET VERTICALLY ABOVE THE BLOCKS. 
ALSO, A RAILING WAS CONSTRUCTED ON ONE SIDE OF THE PLATFORM BETWEEN IT
AND ONE OF THE BLOCKS.  NO RAILING WAS PLACED ON THE OTHER SIDE OF THE
PLATFORM.  WHEN NEELY ALONG WITH THREE FELLOW WORKERS ARRIVED AT THE
SILO, THEY WERE TOLD BY RESPONDENT'S FOREMAN THAT THE PLATFORM WAS
READY.  THE ONLY WAY THEY COULD GET FROM THE PLATFORM TO THE BLOCKS WAS
BY JUMPING THE GAP BETWEEN THE PLATFORM AND BLOCKS.  HOWEVER, BECAUSE
OF THE RAILING ON ONE SIDE OF THE PLATFORM, THE WORKERS COULD NOT JUMP
DIRECTLY ACROSS THE TWO-FOOT GAP TO THE BLOCK ON THAT SIDE, BUT HAD
EITHER TO JUMP THREE FEET DIAGONALLY TO THE BLOCK OR TO CLIMB OVER THE
RAILING.  ONE WORKER SUCCESSFULLY LEAPED TO THE BLOCK, FASTENED HIS
SAFETY BELT, AND THEN LOOKED BACK AND SAW NEELY, WHO WAS TO FOLLOW,
FALLING HEAD FIRST THROUGH THE HOLE BETWEEN THE PLATFORM AND THE
BLOCK.  NEELY, FAILING TO MAKE THE JUMP, FELL TO HIS DEATH 130 FEET
BELOW. 

PETITIONER'S CASE CONSISTED OF THE TESTIMONY OF THE DAY FOREMAN, ONE
OF THE CARPENTERS WHO CONSTRUCTED THE PLATFORM, AND THE WORKER WHO WAS
CLOSEST TO NEELY WHEN HE FELL.  QUITE UNDERSTANDABLY, IN VIEW OF THE
STRONG EVIDENCE, PETITIONER DID NOT CALL TO TESTIFY THE TWO OTHER
WORKERS WHO WITNESSED NEELY'S FALL OR THE OTHER CARPENTERS WHO WORKED
ON THE PLATFORM.  SHE DID, HOWEVER, INTRODUCE SEVERAL REVEALING
PHOTOGRAPHS OF THE PLATFORM, BLOCKS, AND INTERVENING GAP TAKEN
IMMEDIATELY AFTER THE ACCIDENT.  ON RESPONDENT'S OBJECTION, THE TRIAL
JUDGE EXCLUDED SEVERAL OTHER PHOTOGRAPHS WHICH SHOWED NETS WHICH, AFTER
THE ACCIDENT, WERE PLACED UNDER THE PLATFORM FOR THE SAFETY OF THE
INVESTIGATORS.  THERE WAS TESTIMONY THAT NEITHER THE RAILING NOR
PLATFORM BROKE AND THAT THERE WAS NO GREASE ON THE PLATFORM.  BUT WHEN
PETITIONER'S COUNSEL ASKED THE DAY FOREMAN WHETHER HE CONSIDERED THE
PLATFORM SAFE AND ADEQUATE, HE REPLIED IN THE NEGATIVE, THOUGH THIS
TESTIMONY, ON RESPONDENT'S OBJECTION, WAS THEN ORDERED STRICKEN AS
OPINION EVIDENCE ON AN ULTIMATE ISSUE.  THE TRIAL COURT REFUSED TO
ALLOW THE SAME QUESTION TO BE ASKED OF THE OTHER WITNESSES.  AT ONE
TIME, THE CARPENTER DID TESTIFY THAT A RAILING WAS PUT ON ONLY ONE SIDE
OF THE PLATFORM BECAUSE LUNCH HOUR WAS NEARING AND THE PLATFORM HAD TO
BE COMPLETED BEFORE THEN. 

ON THIS EVIDENCE, WHICH THE TRIAL JUDGE CHARACTERIZED AS PRESENTING A
"CLOSE CASE," THE COURT OF APPEALS HELD A VERDICT SHOULD HAVE BEEN
DIRECTED FOR RESPONDENT.  ALTHOUGH THE COURT WAS WILLING TO ASSUME THAT
THERE MIGHT BE SOME NEGLIGENCE IN THE SIZE OF THE PLATFORM OR THE
PLACING OF THE RAILING ALONG ONE SIDE, AND THOUGH IT WAS WILLING TO
CONCEDE "THAT THE PLATFORM MIGHT POSSIBLY HAVE HAD SOMETHING TO DO WITH
HIS (NEELY'S) FALL," 344 F.2D 482, 486, THE COURT PURPORTED TO FIND NO
EVIDENCE, NOT EVEN CIRCUMSTANTIAL EVIDENCE, THAT THE CONSTRUCTION OF
THE PLATFORM WAS THE PROXIMATE CAUSE OF THE FALL.  I THINK THIS HOLDING
CRIES FOR REVERSAL.  IF CONSTRUCTING A PLATFORM 130 FEET IN THE AIR, AT
WHICH HEIGHT WORKMEN USE SAFETY BELTS, WITH A THREE-FOOT DIAGONAL GAP
OVER WHICH WORKERS MUST LEAP AND WITH A RAILING WHICH MAKES A DIRECT
JUMP IMPOSSIBLE, DOES NOT ITSELF SHOW NEGLIGENCE AND PROXIMATE CAUSE,
THEN IT IS DIFFICULT TO CONCEIVE OF ANY EVIDENCE THAT WOULD.  BESIDES
THE SIZE OF THE PLATFORM AND THE PRESENCE OF THE RAILING, THE
PHOTOGRAPHS SHOWN TO THE JURY, AND REPRODUCED IN THIS RECORD, REVEAL
OTHER POSSIBLE DEFECTS IN ITS CONSTRUCTION:  A VERTICAL KICKBOARD
EXTENDING BEYOND THE RAILING INTO THE GAP THROUGH WHICH NEELY JUMPED;
ROUGH BOARDS ON THE FLOOR OF THE PLATFORM.  THE FACT THAT NEELY WAS
COMING HEADFIRST BY THE TIME HE PASSED THE BLOCK TWO FEET BELOW MIGHT
HAVE MADE IT REASONABLE FOR THE JURY TO HAVE CONCLUDED THAT HE TRIPPED
ON THESE IMPEDIMENTS RATHER THAN MERELY STEPPED IN THE OPENING.  IN
SHORT, I BELIEVE IT WAS A CLEAR VIOLATION OF THE SEVENTH AMENDMENT TO
DEPRIVE PETITIONER OF A JURY VERDICT RENDERED ON THIS EVIDENCE. 

     II. 

SINCE THE ADOPTION OF RULE 50, OUR CASES HAVE CONSISTENTLY AND
EMPHATICALLY PRESERVED THE RIGHT OF A LITIGANT WHOSE JUDGMENT - WHETHER
IT BE A JUDGMENT ENTERED ON THE VERDICT OR JUDGMENT N.O.V. - IS SET
ASIDE TO INVOKE THE DISCRETION OF THE TRIAL COURT IN RULING ON A MOTION
FOR NEW TRIAL.  THE FIRST OF THESE CASES WAS MONTGOMERY WARD & CO. V.
DUNCAN, 311 U.S. 243, WHERE THE TRIAL JUDGE, UNLIKE HERE, GRANTED THE
DEFENDANT'S MOTION FOR JUDGMENT N.O.V., BUT IN DOING SO FAILED TO RULE
ON HIS ALTERNATIVE MOTION FOR A NEW TRIAL.  THE COURT OF APPEALS
REVERSED THE TRIAL COURT'S GRANT OF JUDGMENT N.O.V. TO THE DEFENDANT
AND REMANDED THE CASE WITH DIRECTIONS TO ENTER JUDGMENT ON THE VERDICT
FOR THE PLAINTIFF, OVERRULING DEFENDANT'S CONTENTION THAT THE TRIAL
JUDGE SHOULD BE GIVEN AN OPPORTUNITY TO PASS ON HIS ALTERNATIVE MOTION
FOR NEW TRIAL.  HOLDING THAT THE TRIAL JUDGE SHOULD HAVE INITIALLY
RULED ON THIS ALTERNATIVE MOTION, THIS COURT REMANDED THE CASE TO THE
TRIAL JUDGE FOR THE PURPOSE OF PASSING ON THAT MOTION.  IN EXPLAINING
THIS RESULT THE COURT SAID: 

"THE RULE CONTEMPLATES THAT EITHER PARTY TO THE ACTION IS ENTITLED TO
THE TRIAL JUDGE'S DECISION ON BOTH MOTIONS, IF BOTH ARE PRESENTED  ...
.  IF, HOWEVER, AS IN THE PRESENT INSTANCE, THE TRIAL COURT ERRED IN
GRANTING THE MOTION THE PARTY AGAINST WHOM THE VERDICT WENT IS ENTITLED
TO HAVE HIS MOTION FOR A NEW TRIAL CONSIDERED IN RESPECT OF ASSERTED
SUBSTANTIAL TRIAL ERRORS AND MATTERS APPEALING TO THE DISCRETION OF THE
JUDGE."  ID., AT 251-252. 

THE QUESTION HERE, HOWEVER, UNLIKE THAT IN DUNCAN, IS WHETHER THE
COURT OF APPEALS, AFTER HOLDING THAT THE DISTRICT COURT ERRED IN
FAILING TO DIRECT A VERDICT AGAINST THE PLAINTIFF, CAN THEN ORDER THE
DISTRICT COURT TO DISMISS THE CASE AND THEREBY DEPRIVE THE VERDICT
WINNER OF ANY OPPORTUNITY TO ASK THE TRIAL JUDGE FOR A NEW TRIAL IN
ORDER TO CURE A DEFECT IN PROOF IN THE FIRST TRIAL.  THIS QUESTION WAS
FIRST CONSIDERED IN CONE V. WEST VIRGINIA PULP & PAPER CO., 330 U.S.
212.  IN CONE, AS IN THIS CASE, THE QUESTION WAS WHETHER THE COURT OF
APPEALS COULD DIRECT THE DISMISSAL OF A CASE IN WHICH THE TRIAL COURT
HAD ERRONEOUSLY FAILED TO GRANT A DIRECTED VERDICT.  IN THAT CASE NO
MOTION FOR JUDGMENT N.O.V. HAD BEEN MADE BY THE VERDICT LOSER.  WE HELD
THAT THE COURT OF APPEALS COULD NOT UNDER THOSE CIRCUMSTANCES ORDER THE
DISMISSAL OF THE CASE.  NOTING THAT "DETERMINATION OF WHETHER A NEW
TRIAL SHOULD BE GRANTED OR A JUDGMENT ENTERED UNDER RULE 50(B) CALLS
FOR THE JUDGMENT IN THE FIRST INSTANCE OF THE JUDGE WHO SAW AND HEARD
THE WITNESSES AND HAS THE FEEL OF THE CASE WHICH NO APPELLATE PRINTED
TRANSCRIPT CAN IMPART," ID., AT 216, WE HELD THAT "A LITIGANT SHOULD
NOT HAVE HIS RIGHT TO A NEW TRIAL FORECLOSED WITHOUT HAVING HAD THE
BENEFIT OF THE TRIAL COURT'S JUDGMENT ON THE QUESTION," ID., AT 217. 
WE CLEARLY INDICATED THAT THE RESULT WOULD HAVE BEEN THE SAME HAD THE
VERDICT LOSER, AS HAD THE RESPONDENT HERE, UNSUCCESSFULLY MOVED FOR A
JUDGMENT N.O.V. IN THE TRIAL COURT, FOR IN THAT CASE, LIKEWISE, THE
VERDICT WINNER WOULD HAVE HAD TO WAIT UNTIL THE COURT OF APPEALS
DEPRIVED HIM OF HIS VERDICT BEFORE PRESENTING HIS GROUNDS FOR A NEW
TRIAL.  WE SPECIFICALLY REJECTED A SUGGESTION - TODAY ACCEPTED BY THE
COURT - THAT THE VERDICT WINNER SHOULD HAVE TO CLAIM HIS RIGHT TO A NEW
TRIAL IN THE COURT OF APPEALS OR LOSE IT.  ID., AT 218. 

FOLLOWING CONE, WE EMPHASIZED AND RE-EMPHASIZED IN GLOBE LIQUOR CO.
V. SAN ROMAN, 332 U.S. 571, THAT THE REASON WHY COURTS OF APPEALS ARE
WITHOUT POWER TO DISMISS CASES IN SITUATIONS LIKE THIS IS THAT THE
POWER TO DETERMINE THIS ISSUE IS VESTED EXCLUSIVELY IN THE JUDGE WHO
TRIED THE CASE.  AND AGAIN, IN WEADE V. DICHMANN, WRIGHT & PUGH, INC.,
337 U.S. 801, EVEN WHERE - AS IN THIS CASE - A TIMELY MOTION FOR
JUDGMENT N.O.V. HAD BEEN MADE, THE COURT AFFIRMED THE COURT OF APPEALS'
HOLDING THAT THE VERDICT COULD NOT STAND, BUT, RELYING ON CONE AND
GLOBE LIQUOR, MODIFIED ITS JUDGMENT TO PROVIDE THE TRIAL JUDGE WITH AN
OPPORTUNITY TO DECIDE WHETHER THE VERDICT WINNER WAS ENTITLED TO A NEW
TRIAL.  ID., AT 809 AND N. 8.  SEE ALSO JOHNSON V. NEW YORK, N.H.&H.R.
CO., 344 U.S. 48; FOUNTAIN V. FILSON, 336 U.S. 681. 

THIS ISSUE OF WHETHER A NEW TRIAL IS JUSTIFIED AFTER A VERDICT IS SET
ASIDE EITHER BY A TRIAL OR AN APPELLATE COURT IS A NEW ISSUE WHICH IT
WAS NOT NECESSARY TO DECIDE IN THE ORIGINAL TRIAL.  IT IS A FACTUAL
ISSUE AND THAT THE TRIAL COURT IS THE MORE APPROPRIATE TRIBUNAL TO
DETERMINE IT HAS BEEN ALMOST UNIVERSALLY ACCEPTED BY BOTH FEDERAL AND
STATE COURTS THROUGHOUT THE YEARS.  THERE ARE MANY REASONS FOR THIS. 
APPELLATE TRIBUNALS ARE NOT EQUIPPED TO TRY FACTUAL ISSUES AS TRIAL
COURTS ARE.  A TRIAL JUDGE WHO HAS HEARD THE EVIDENCE IN THE ORIGINAL
CASE HAS A VAST STORE OF INFORMATION AND KNOWLEDGE ABOUT IT THAT THE
APPELLATE COURT CANNOT GET FROM A COLD, PRINTED RECORD.  THUS, AS WE
SAID IN CONE, THE TRIAL JUDGE CAN BASE THE BROAD DISCRETION GRANTED HIM
IN DETERMINING FACTUAL ISSUES OF A NEW TRIAL ON HIS OWN KNOWLEDGE OF
THE EVIDENCE AND THE ISSUES "IN A PERSPECTIVE PECULIARLY AVAILABLE TO
HIM ALONE."  330 U.S., AT 216.  THE SPECIAL SUITABILITY OF HAVING A
TRIAL JUDGE DECIDE THE ISSUE OF A NEW TRIAL IN CASES LIKE THIS IS
EMPHASIZED BY A LONG AND UNBROKEN LINE OF DECISIONS OF THIS COURT
HOLDING THAT THE EXERCISE OF DISCRETION BY TRIAL JUDGES IN GRANTING OR
REFUSING NEW TRIALS ON FACTUAL GROUNDS IS PRACTICALLY UNREVIEWABLE BY
APPELLATE COURTS.  SEE, E.G., FAIRMOUNT GLASS WORKS V. CUB FORK COAL
CO., 287 U.S. 474, 481-482; CITED WITH APPROVAL IN MONTGOMERY WARD &
CO. V. DUNCAN, SUPRA, AT 253, N. 12. 

TODAY'S DECISION IS OUT OF HARMONY WITH ALL THE CASES REFERRED TO
ABOVE.  THE COURT'S OPINION ATTEMPTS TO JUSTIFY ITS GRANT OF POWER TO
APPELLATE COURTS BY POINTING TO INSTANCES IN WHICH THOSE COURTS, AND
EVEN ASSERTEDLY THIS COURT, HAVE UTILIZED THIS POWER IN THE PAST.  THE
COURT CITES PENCE V. UNITED STATES, 316 U.S. 332, AND NEW YORK,
N.H.&H.R. CO. V. HENAGAN, 364 U.S. 441, AS SUCH INSTANCES.  IN PENCE,
THE COURT OF APPEALS REVERSED THE TRIAL COURT'S REFUSAL TO GRANT
JUDGMENT N.O.V. AND REMANDED FOR FURTHER CONSISTENT PROCEEDINGS.  WE
AFFIRMED WITHOUT THE SLIGHTEST INDICATION THAT WE FELT THE COURT OF
APPEALS' MANDATE DEPRIVED THE VERDICT WINNER OF THE CHANCE TO MOVE FOR
A NEW TRIAL ON REMAND.  NEITHER DID THE COURT INDICATE THAT THIS WOULD
BE THE EFFECT OF ITS MANDATE IN HENAGAN WHERE IT REMANDED THE CASE TO
THE DISTRICT COURT TO ENTER JUDGMENT N.O.V. FOR THE VERDICT LOSER.  AND
THE SAME CAN BE SAID OF ALMOST EVERY OTHER POST-CONE COURT OF APPEALS
DECISION CITED BY THE COURT IN NOTE 5.  CF. JOHNSON V. NEW YORK,
N.H.&H.R. CO., SUPRA, AT 54, N. 3. 

THE COURT ALSO ATTEMPTS TO JUSTIFY ITS NEW GRANT OF POWER TO
APPELLATE JUDGES BY A STRAINED PROCESS OF REASONING.  FIRST, THE COURT
SUGGESTS THAT THE POWER OF AN APPELLATE COURT TO DISMISS A CASE AFTER
SETTING ASIDE A LITIGANT'S VERDICT CAN BE DERIVED FROM 28 U.S.C. SEC
2106.  THIS IDEA, OF COURSE, WAS FIRST SUGGESTED BY A DISSENT IN
JOHNSON V. NEW YORK, N.H.&H.R.  CO., SUPRA, AT 65, WHICH ARGUED THAT
BECAUSE OF SEC. 2106 "THE DISCRETION NOW RESTS WITH THE COURT OF
APPEALS TO GRANT A NEW TRIAL OR TO DIRECT A VERDICT ACCORDING TO LAW ON
THE RECORD ALREADY MADE."  THIS CONTENTION, HOWEVER, WAS NOT DEEMED
WORTHY OF ARGUMENT OR COMMENT EITHER BY THE COURT IN ITS OPINION OR BY
OTHERS WHO DISSENTED IN THE JOHNSON CASE.  SECTION 2106 MERELY DEALS
WITH THE GENERAL POWER OF APPELLATE COURTS AND INDICATES NO
CONGRESSIONAL PURPOSE TO OVERCOME THE LONG-STANDING AND ESTABLISHED
PRACTICE, RECOGNIZED BY THIS COURT'S DECISIONS AND RULE 50, THAT THE
DISCRETION TO DECIDE WHETHER A NEW TRIAL SHOULD BE GRANTED, WHEN THE
APPELLATE COURT FINDS A GAP IN THE SUPPORTING EVIDENCE, RESTS WITH THE
TRIAL JUDGE AND NOT WITH THE APPELLATE COURT.  IT BEGS THE QUESTION TO
ARGUE THAT IT IS APPROPRIATE FOR AN APPELLATE COURT IN SUCH
CIRCUMSTANCES TO ORDER A DISMISSAL MERELY BECAUSE SEC 2106 PROVIDES
THAT A COURT OF APPEALS MAY DIRECT THE ENTRY OF AN "APPROPRIATE
JUDGMENT." 

THE COURT FURTHER PURPORTS TO DERIVE THIS POWER FROM THE PROVISIONS
OF RULE 50(C)(1), AND (D).  THE COURT NOTES THAT UNDER RULE 50(C)(1),
WHERE THE TRIAL JUDGE GRANTS A JUDGMENT N.O.V. AND EITHER GRANTS OR
DENIES THE CONDITIONAL MOTION FOR NEW TRIAL, AN APPELLATE COURT IN
REVERSING THE JUDGMENT N.O.V. HAS "THE POWER TO GRANT OR TO DENY A NEW
TRIAL IN APPROPRIATE CASES."  BUT, AS THE COURT FAILS TO RECOGNIZE, THE
CRUCIAL PREREQUISITE TO THE EXERCISE OF THIS APPELLATE POWER IS A
RULING IN THE FIRST INSTANCE, AS REQUIRED IN CONE, BY THE TRIAL COURT
ON THE MOTION FOR NEW TRIAL.  HERE THAT CRUCIAL PREREQUISITE IS
MISSING. 

THE COURT THEN PROCEEDS TO FIND RULE 50(C)(2) INAPPLICABLE ON ITS
FACE TO A SITUATION WHERE THE TRIAL COURT DENIES A JUDGMENT N.O.V. BUT
AN APPELLATE COURT ORDERS THAT ONE BE ENTERED.  IN DOING SO, THE COURT
IGNORES THE PURPOSE OF RULE 50(C)(2).  THE RULES COMMITTEE EXPLAINED
THIS PROVISION AS FOLLOWS:    "SUBDIVISION (C)(2) IS A REMINDER THAT
THE VERDICT-WINNER IS ENTITLED, EVEN AFTER ENTRY OF JUDGMENT N.O.V.
AGAINST HIM, TO MOVE FOR A NEW TRIAL IN THE USUAL COURSE."  31 F.R.D.
646. 

THE RULE DOES NOT REMOTELY INDICATE THAT THE VERDICT WINNER LOSES
THIS RIGHT TO MOVE FOR A NEW TRIAL IF THE TRIAL COURT'S ENTRY OF
JUDGMENT N.O.V. AGAINST HIM IS ON DIRECTION BY THE APPELLATE COURT
RATHER THAN ON ITS OWN INITIATIVE.  SECTIONS (C) AND (D) WERE ADDED TO
RULE 50 IN 1963, AFTER ALL THE CASES DISCUSSED ABOVE HAD BEEN DECIDED. 
AS THE NOTES OF THE RULES COMMITTEE INDICATE, THESE AMENDMENTS WERE
MADE TO IMPLEMENT THOSE DECISIONS WHICH HAD EMPHASIZED THE IMPORTANCE
OF HAVING TRIAL JUDGES INITIALLY DETERMINE THE FACTUAL ISSUE OF WHETHER
A NEW TRIAL IS JUSTIFIED IN CASES WHERE JUDGMENT N.O.V. HAS BEEN
ENTERED AGAINST THE VERDICT WINNER, EITHER BY THE TRIAL OR APPELLATE
COURT.  THE COMMITTEE AT NO PLACE HINTED THAT THE AMENDMENTS WERE MEANT
TO CHANGE THE PRACTICE ESTABLISHED BY THOSE CASES, AND, TO THE
CONTRARY, IT SPECIFICALLY STATED THAT, "THE AMENDMENTS DO NOT ALTER THE
EFFECTS OF A JURY VERDICT OR THE SCOPE OF APPELLATE REVIEW."  31 F.R.D.
645. 

CERTAINLY THIS IS TRUE OF RULE 50(D).  THIS SECTION PROVIDES THAT THE
VERDICT WINNER, WHO PREVAILED ON THE MOTION FOR JUDGMENT N.O.V., "MAY,
AS APPELLEE, ASSERT GROUNDS ENTITLING HIM TO A NEW TRIAL IN THE EVENT
THE APPELLATE COURT CONCLUDES THAT THE TRIAL COURT ERRED IN DENYING THE
MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT" AND THAT "NOTHING IN
THIS RULE PRECLUDES IT (THE APPELLATE COURT) FROM DETERMINING THAT THE
APPELLEE IS ENTITLED TO A NEW TRIAL, OR FROM DIRECTING THE TRIAL COURT
TO DETERMINE WHETHER A NEW TRIAL SHALL BE GRANTED."  BECAUSE THE COURT
FINDS THAT THE RULE "IS PERMISSIVE IN THE NATURE OF ITS DIRECTION TO
THE COURT OF APPEALS," IT CONCLUDES "THERE IS NOTHING IN RULE 50(D)
INDICATING THAT THE COURT OF APPEALS MAY NOT DIRECT ENTRY OF JUDGMENT
N.O.V. IN APPROPRIATE CASES."  THE COURT ENTIRELY OVERLOOKS THE FACT
THAT THE RULE IS LIKEWISE PERMISSIVE IN THE NATURE OF ITS DIRECTION TO
THE VERDICT WINNER AS APPELLEE:  IT PROVIDES THAT THE VERDICT WINNER
"MAY" ASK THE COURT OF APPEALS FOR A NEW TRIAL; IT DOES NOT PROVIDE
THAT HE MUST DO SO IN ORDER TO PROTECT HIS RIGHT TO A NEW TRIAL. 
CONTRARY TO THE COURT, I THINK THE EXPRESS FAILURE OF RULE 50(D) TO
GIVE THE APPELLATE COURT POWER TO ORDER A CASE DISMISSED INDICATES A
CLEAR INTENTION TO DENY IT ANY SUCH POWER.  THE PRACTICE NOW PERMITTED
BY RULE 50(D) WAS FIRST EMBODIED IN THE NOTES OF THE RULES COMMITTEE TO
THE PROPOSED, BUT UNADOPTED, AMENDMENTS OF 1946.  THE NOTES SUGGESTED
THAT A VERDICT WINNER COULD, AS APPELLEE, ASSIGN GROUNDS FOR A NEW
TRIAL IN THE EVENT THE APPELLATE COURT SET ASIDE HIS VERDICT.  IN CONE,
HOWEVER, WE EXPRESSLY REJECTED THE CONTENTION THAT THE VERDICT WINNER'S
FAILURE, AS APPELLEE, TO ASSIGN GROUNDS FOR A NEW TRIAL IN THE
APPELLATE COURT GAVE THAT COURT THE POWER TO DENY HIM A NEW TRIAL. 
CONE V. WEST VIRGINIA PULP & PAPER CO., SUPRA, AT 218 AND N. 6.  THIS
REJECTION WAS EXTENSIVELY DISCUSSED BY THE COMMENTATORS, MOST OF WHOM
CONCLUDED THAT UNDER CONE THE VERDICT WINNER SHOULD BE ALLOWED A CHANCE
TO PRESENT HIS MOTION FOR NEW TRIAL AT THE TRIAL COURT LEVEL.  (FN3)
FINALLY, WHEN RULE 50(D) WAS ADOPTED, THERE WAS NOT THE SLIGHTEST
INDICATION THAT IT WAS INTENDED TO ADOPT THE PRACTICE THAT WE FOUND
OBJECTIONABLE IN CONE.   IN FACT, IT WAS CAREFULLY WORDED TO AVOID
GIVING THE APPELLATE COURT ANY POWER TO DENY A NEW TRIAL.   I DO NOT
BELIEVE THIS OMISSION UNINTENTIONAL, FOR THE LANGUAGE OF RULE 50(C)(1),
ADOPTED AT THE SAME TIME, DOES PURPORT TO GIVE THE APPELLATE COURT THIS
POWER WHEN IT REVERSES A JUDGMENT N.O.V. AND THE TRIAL COURT HAS
ALREADY DENIED THE VERDICT LOSER'S CONDITIONAL MOTION FOR NEW TRIAL. 
IT DOES SO CLEARLY BY PROVIDING THAT "SUBSEQUENT PROCEEDINGS SHALL BE
IN ACCORDANCE WITH THE ORDER OF THE APPELLATE COURT." 

IN SHORT, TODAY'S DECISION FLIES IN THE TEETH OF RULE 50(C)(2), AND
OUR CASES WHICH THAT RULE WAS INTENDED TO IMPLEMENT, BY GIVING THE
COURT OF APPEALS THE POWER, CLEARLY WITHHELD BY RULE 50(D), TO
SUBSTITUTE ITS JUDGMENT FOR THE TRIAL COURT'S AND THEN DECIDE THAT
JUSTICE REQUIRES NO NEW TRIAL. 

                                            III. 

EVEN WERE I TO AGREE WITH THE COURT THAT COURTS OF APPEALS HAVE THE
POWER TO DENY A VERDICT WINNER A NEW TRIAL, I COULD NOT AGREE TO THE
AFFIRMANCE OF SUCH A DENIAL HERE.  HERE, SO FAR AS APPEARS FROM THE
RECORD, THE COURT OF APPEALS NEVER EVEN GAVE A THOUGHT TO THE QUESTION
OF WHETHER PETITIONER WAS ENTITLED TO A NEW TRIAL, BUT SIMPLY REQUIRED
THAT THE DISTRICT JUDGE DISMISS THE LAWSUIT AS THOUGH IT WERE AN
AUTOMATIC NECESSITY.  AND PETITIONER, IN SEEKING TO SUPPORT HER VERDICT
WITHOUT DIRECTING THE COURT OF APPEALS' ATTENTION TO ANY GROUNDS FOR A
NEW TRIAL, HAD EVERY RIGHT TO RELY ON OUR PAST CASES WHICH PLAINLY TOLD
HER THAT SHE WAS ENTITLED TO MAKE HER MOTION FOR A NEW TRIAL TO THE
TRIAL JUDGE WHO IS FAR MORE ABLE TO DETERMINE WHETHER JUSTICE REQUIRES
A NEW TRIAL.  WHILE IN ONE BREATH THE COURT SAYS THAT IT "WILL NOT
ASSUME THAT THE COURT OF APPEALS IGNORED ITS DUTY" TO "CONSIDER THE NEW
TRIAL QUESTION," IN ANOTHER BREATH IT NOTES THAT "THIS MATTER WAS NOT
RAISED IN THE COURT OF APPEALS."  AND BECAUSE PETITIONER FAILED TO
PRESENT GROUNDS FOR A NEW TRIAL TO THE COURT OF APPEALS, THE COURT,
WHILE RECOGNIZING THAT SHE HERE PRESENTS GROUNDS FOR A NEW TRIAL WHICH
MIGHT REQUIRE DECISION BY THE TRIAL COURT, REFUSES TO CONSIDER THESE
GROUNDS. 

IN REFUSING TO CONSIDER PETITIONER'S GROUNDS FOR A NEW TRIAL, THE
COURT COMPLETELY IGNORES WHAT WAS DONE IN WEADE V. DICHMANN, WRIGHT &
PUGH, INC., SUPRA.  THERE WE ORDERED THE CASE REMANDED TO THE TRIAL
COURT TO PASS ON PETITIONER'S MOTION FOR NEW TRIAL BECAUSE PETITIONER
SUGGESTED TO THIS COURT THAT THERE WAS AN ALTERNATIVE THEORY IN THE
COURT OF APPEALS, AND NOTHING IN OUR OPINION INDICATES ANY SUCH
REQUIREMENT.  THE COURT CORRECTLY SUMMARIZES WEADE AS HOLDING THAT "AN
APPELLATE COURT MAY NOT ORDER JUDGMENT N.O.V.  WHERE  ...  THE RECORD
REVEALS A NEW TRIAL ISSUE WHICH HAS NOT BEEN RESOLVED."  I THINK THE
RECORD HERE REVEALS SUCH AN ISSUE AND THAT, AT THE VERY LEAST,
PETITIONER SHOULD NOW BE GIVEN A CHANGE TO ARGUE THAT ISSUE TO THE
COURT OF APPEALS. 

THE RECORD HERE CLEARLY REVEALS THAT THERE WERE GAPS IN PETITIONER'S
CASE WHICH SHE MIGHT, IF GIVEN A CHANGE, FILL UPON A NEW TRIAL.  FIRST,
ONLY ONE OF THE THREE EYEWITNESSES TO NEELY'S FALL AND ONLY ONE OF THE
CARPENTERS WHO WORKED ON THE PLATFORM WERE CALLED AS WITNESSES. 
SECOND, THE TRIAL COURT EXCLUDED TESTIMONY BY ALL THE WITNESSES AS TO
THEIR OPINIONS OF THE ADEQUACY OF THE PLATFORM.  THIRD, SEVERAL OF
PETITIONER'S VERY RELEVANT PHOTOGRAPHS OF THE PLATFORM WERE EXCLUDED BY
THE TRIAL JUDGE.  FROM SUCH CIRCUMSTANCES AS THESE THE TRIAL JUDGE
MIGHT PROPERLY HAVE CONCLUDED THAT PETITIONER WAS ENTITLED TO A NEW
TRIAL TO FILL THE GAPS IN HER CASE.  IT IS PARTICULARLY PERTINENT IN
THIS RESPECT THAT THE COURT OF APPEALS ITSELF SAID: 

"IT MAY, OF COURSE, BE CONCEDED THAT THE PLATFORM MIGHT POSSIBLY HAVE
HAD SOMETHING TO DO WITH HIS FALL, BUT THERE IS NOTHING IN THE RECORD
TO SHOW WHAT IT WAS."  344 F.2D, AT 486. 

IT SURELY CANNOT BE DISMISSED AS IDLE CONJECTURE TO THINK THAT
PETITIONER COULD, IF GIVEN A CHANCE, INTRODUCE SUFFICIENT EVIDENCE TO
PROVE TO THE MOST EXACTING FACT FINDER THAT THE THREE-FOOT DIAGONAL GAP
IN THE PLATFORM 130 FEET ABOVE THE GROUND HAD SOMETHING TO DO WITH THIS
FALL AND THIS DEATH. 

FN1  HERETOFORE, WHEN FACED WITH THIS ISSUE, THE COURT HAS MET IT
HEAD-ON AND THUS AVOIDED UNNECESSARILY DISCUSSING THE EFFECT OF RULE
50.  SEE, E.G., CONWAY V. O'BRIEN, 312 U.S. 492; BERRY V. UNITED
STATES, 312 U.S. 450; HALLIDAY V. UNITED STATES, 315 U.S. 94. 

FN2  PETITIONER'S "QUESTION PRESENTED," AS SET OUT IN N. 3 OF THE
COURT'S OPINION, IS WHETHER - IN ADDITION TO RULE 50(D) - RULE 38(A)
AND THE SEVENTH AMENDMENT "PRECLUDE THE COURT OF APPEALS FROM
INSTRUCTING THE TRIAL COURT TO DISMISS AN ACTION WHEREIN THE TRIAL
COURT DENIED THE DEFENDANT'S MOTIONS FOR NEW TRIAL AND FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AND ENTERED JUDGMENT FOR THE PLAINTIFF?" 
CERTAINLY, IF THERE WERE SUFFICIENT EVIDENCE TO GO TO THE JURY, THEN
RULE 38(A) AND THE SEVENTH AMENDMENT PRECLUDE THE COURT OF APPEALS FROM
DIRECTING A DISMISSAL OF PETITIONER'S CASE AFTER SHE HAD OBTAINED A
JURY VERDICT.  TO MAKE IT FURTHER CLEAR THAT PETITIONER WAS CHALLENGING
THE COURT OF APPEALS' RULING ON THE SUFFICIENCY OF THE EVIDENCE, THE
PETITION FOR CERTIORARI ALSO STATES THAT "PETITIONER DOES NOT CONCEDE
FOR ONE MOMENT THAT THE TRIAL COURT AND THE JURY WERE WRONG AND THAT
THE APPELLATE COURT WAS RIGHT IN INTERPRETING THE EVIDENCE AS TO
PROXIMATE CAUSE AND NEGLIGENCE."  AND OUR ORDER GRANTING CERTIORARI,
WHILE DIRECTING COUNSEL'S ATTENTION TO THE QUESTION OF THE COURT OF
APPEALS' POWER TO DISMISS THE CASE UNDER RULE 50(C) AND (D), STATED
THAT THIS QUESTION WAS "IN ADDITION TO ALL THE QUESTIONS PRESENTED BY
THE PETITION."  382 U.S. 914. 

FN3  SEE, E.G., COMMENT, 51 NW. U.L. REV. 397, 400-402 (1956); NOTE,
58 COL. L. REV. 517, 524-525 (1958). 
..END :
















O'BRIEN V. UNITED STATES 386 U.S. 345 


NO. 823.  DECIDED MARCH 20, 1967.  - CERTIORARI GRANTED; 365 F.2D 601,
VACATED AND REMANDED. 


O'BRIEN ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, JUDGMENT VACATED
AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN FOR A NEW TRIAL SHOULD THE GOVERNMENT SEEK
TO PROSECUTE PETITIONERS ANEW.  BLACK V. UNITED STATES, 385 U.S. 26. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

PETITIONERS IN THIS CASE, CHARLES O'BRIEN AND THOMAS PARISI, WERE
CONVICTED ON SEVERAL COUNTS OF REMOVING MERCHANDISE FROM A BONDED AREA
UNDER THE SUPERVISION OF THE UNITED STATES CUSTOMS SERVICE, IN
VIOLATION OF 18 U.S.C. SEC. 549.  THE ITEMS INVOLVED WERE, ON THE FIRST
COUNT, APPLICABLE ONLY TO PETITIONER O'BRIEN, 14 CASES OF MARBLE SLABS;
ON THE SECOND COUNT, A MARBLE STATUE OF ST. THERESA; ON THE THIRD
COUNT, 21 CASES OF VALVES AND VALVE HANDLES. 

THE ISSUES RAISED IN THE PETITION FOR CERTIORARI INVOLVE QUESTIONS AS
TO THE SUFFICIENCY OF THE INDICTMENT AND ALLEGED ERRORS AT TRIAL, NONE
OF WHICH COULD WELL BE DEEMED WORTHY OF REVIEW BY THIS COURT.  HOWEVER,
THE SOLICITOR GENERAL IN HIS RESPONSE COMMENDABLY NOTIFIED THE COURT
THAT PURSUANT TO A GENERAL REVIEW OF THE USE OF "ELECTRONIC
EAVESDROPPING OR WIRETAPPING," HE DISCOVERED THAT A MICROPHONE HAD BEEN
INSTALLED IN A COMMERCIAL ESTABLISHMENT OWNED BY AN ACQUAINTANCE OF
PETITIONER O'BRIEN.  A CONVERSATION IN WHICH O'BRIEN PARTICIPATED,
OCCURRING AFTER THE INDICTMENT AND CONCERNING HIS FORTHCOMING TRIAL,
WAS OVERHEARD.  THE SOLICITOR GENERAL CHARACTERIZES THE EPISODE AS
FOLLOWS:  "THAT CONVERSATION, ALTHOUGH OVERHEARD BY THE MONITORING
AGENTS AND SUMMARIZED IN THEIR LOGS, WAS NOT MENTIONED IN ANY F.B.I.
REPORT NOR WERE ITS CONTENTS COMMUNICATED TO ATTORNEYS FOR THE
DEPARTMENT OF JUSTICE, INCLUDING THOSE WHO PROSECUTED THIS CASE." 

THE SOLICITOR GENERAL FURTHER REVEALED A LATER CONVERSATION WHICH HE
CHARACTERIZES AS FOLLOWS: "IT ALSO APPEARS FROM THE LOGS OF THIS
SURVEILLANCE  ...  THAT PETITIONER O'BRIEN WAS ON THE PREMISES AND WAS
OVERHEARD IN JANUARY 1964, WHEN HE PLACED A TELEPHONE CALL AND
REQUESTED ONE OF HIS ATTORNEYS TO FILE AN APPLICATION RELATING TO THE
TERRITORIAL CONDITIONS OF HIS RELEASE ON BAIL.  THIS CONVERSATION, LIKE
THE ONE IN MAY 1963, WAS NOTED IN THE LOGS OF THE MONITORING AGENTS BUT
WAS NOT COMMUNICATED IN ANY MANNER OUTSIDE THE F.B.I."  (FOOTNOTE
OMITTED.) 

ON THE BASIS OF THESE REPRESENTATIONS THE SOLICITOR GENERAL INDICATED
THAT HE WOULD "NOT OPPOSE" A REMAND OF THE CASE FOR AN ADVERSARY
HEARING AS TO THE EFFECT OF THIS ACTIVITY ON THE VALIDITY OF
PETITIONERS' CONVICTIONS.  THE COURT, HOWEVER, WITHOUT A WORD OF
EXPLANATION, VACATES THE CONVICTIONS AND REMANDS THE ENTIRE CASE FOR A
NEW TRIAL.  I MUST RESPECTFULLY BUT EMPHATICALLY DISSENT. 

AS I STATED IN DISSENTING FROM A SIMILAR DISPOSITION IN BLACK V.
UNITED STATES, 385 U.S. 26, 31: "I AGREE, OF COURSE, THAT PETITIONER IS
ENTITLED TO A FULL-SCALE DEVELOPMENT OF THE FACTS, BUT I CAN SEE NO
VALID REASON WHY THIS UNIMPEACHED CONVICTION SHOULD BE VACATED AT THIS
STAGE  ...  .  A NEW TRIAL IS NOT AN APPROPRIATE VEHICLE FOR SORTING
OUT THE EAVESDROPPING ISSUE BECAUSE UNTIL IT IS DETERMINED THAT SUCH
OCCURRENCE VITIATED THE ORIGINAL CONVICTION NO BASIS FOR A RETRIAL
EXISTS.  THE COURT'S ACTION PUTS THE CART BEFORE THE HORSE." 

IN BLACK THE COURT'S DISPOSITION MIGHT CONCEIVABLY BE ACCOUNTED FOR
BY THE FACT THAT THE GOVERNMENT ADMITTED THAT THE CONTENTS OF THE
RECORDED CONVERSATION HAD BEEN INCORPORATED IN MEMORANDA USED BY THE
PROSECUTING ATTORNEYS.*  IN THE PRESENT CASE, HOWEVER, I CAN THINK OF
NO JUSTIFICATION FOR GOING BEYOND THE POSITION OF THE SOLICITOR GENERAL
AND FORCING THE GOVERNMENT TO GO THROUGH THE EFFORT AND EXPENSE OF AN
ENTIRELY NEW TRIAL ON THE BASIS OF THIS PERIPHERAL, TOTALLY
INSIGNIFICANT, AND UNCOMMUNICATED EAVESDROPPING.  AS IN BLACK, I
CONSIDER THE COURT'S ACTION QUIXOTICALLY PRECIPITATE. 

*IN SCHIPANI V. UNITED STATES, 385 U.S. 372, THE COURT PROPERLY
VACATED THE CONVICTION BECAUSE THE SOLICITOR GENERAL CONCEDED THAT
EVIDENCE USED AT TRIAL WAS TAINTED. 

I WOULD DENY THIS PETITION FOR CERTIORARI, BUT, GIVEN THE SOLICITOR
GENERAL'S ACKNOWLEDGMENT THAT ELECTRONIC EAVESDROPPING OR WIRETAPPING
DID IN FACT TAKE PLACE, I WOULD REMAND THE CASE TO THE DISTRICT COURT
FOR A FULL HEARING AS TO THE CIRCUMSTANCES AND EFFECTS OF THESE
ACTIVITIES. 
..END :









GULF-CANAL V. UNITED STATES 386 U.S. 348 


NO. 947.  DECIDED MARCH 20, 1967.  - 258 F. SUPP. 864, AFFIRMED. 


GULF-CANAL LINES, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















NEW YORK V. UNITED STATES 386 U.S. 349 


NO. 968.  DECIDED MARCH 20, 1967.  - 256 F. SUPP. 634, AFFIRMED. 


NEW YORK V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















ARDEN FARMS V. DEPT. OF AGRICULTURE 386 U.S. 350 


NO. 1004.  DECIDED MARCH 20, 1967.  - 245 ORE.  - , 420 P.2D 379, APPEAL
DISMISSED. 


ARDEN FARMS CO. ET AL. V. STATE DEPARTMENT OF AGRICULTURE ET AL. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE ARE OF
THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET
FOR ORAL ARGUMENT. 
..END :













KLOPFER V. NORTH CAROLINA 386 U.S. 213 


NO. 100.  ARGUED DECEMBER 8, 1966.  - DECIDED MARCH 13, 1967.  - 266
N.C. 349, 145 S.E.2D 909, REVERSED AND REMANDED. 


PETITIONER'S TRIAL ON A NORTH CAROLINA CRIMINAL TRESPASS INDICTMENT
ENDED WITH A DECLARATION OF A MISTRIAL WHEN THE JURY FAILED TO REACH A
VERDICT.  AFTER THE CASE HAD BEEN POSTPONED FOR TWO TERMS, PETITIONER
FILED A MOTION WITH THE TRIAL COURT IN WHICH HE PETITIONED THE COURT TO
ASCERTAIN WHEN THE STATE INTENDED TO BRING HIM TO TRIAL.  WHILE THIS
MOTION WAS BEING CONSIDERED, THE STATE'S PROSECUTOR MOVED FOR
PERMISSION TO TAKE A "NOLLE PROSEQUI WITH LEAVE," A PROCEDURAL DEVICE
WHEREBY THE ACCUSED IS DISCHARGED FROM CUSTODY BUT REMAINS SUBJECT TO
PROSECUTION AT ANY TIME IN THE FUTURE AT THE DISCRETION OF THE
PROSECUTOR.  ALTHOUGH PETITIONER OBJECTED THAT THE TRESPASS CHARGE WAS
ABATED BY THE CIVIL RIGHTS ACT OF 1964 AND THAT ENTRY OF THE NOLLE
PROSEQUI ORDER WOULD VIOLATE HIS FEDERAL RIGHT TO A SPEEDY TRIAL, THE
TRIAL COURT, WITHOUT STATED JUSTIFICATION, GRANTED THE PROSECUTOR'S
MOTION.  ON APPEAL, THE STATE SUPREME COURT AFFIRMED THE TRIAL COURT'S
ACTION, HOLDING THAT WHILE A DEFENDANT HAS A RIGHT TO A SPEEDY TRIAL IF
THERE IS TO BE A TRIAL, THAT RIGHT DOES NOT REQUIRE THE STATE TO
PROSECUTE IF THE PROSECUTOR, IN HIS DISCRETION AND WITH THE COURT'S
APPROVAL, ELECTS TO TAKE A NOLLE PROSEQUI.  HELD:  BY INDEFINITELY
POSTPONING PROSECUTION ON THE INDICTMENT OVER PETITIONER'S OBJECTION
AND WITHOUT STATED JUSTIFICATION, THE STATE DENIED PETITIONER THE RIGHT
TO A SPEEDY TRIAL GUARANTEED TO HIM BY THE SIXTH AND FOURTEENTH
AMENDMENTS OF THE FEDERAL CONSTITUTION.  PP. 219-226. 

KLOPFER V. NORTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION INVOLVED IN THIS CASE IS WHETHER A STATE MAY
INDEFINITELY POSTPONE PROSECUTION ON AN INDICTMENT WITHOUT STATED
JUSTIFICATION OVER THE OBJECTION OF AN ACCUSED WHO HAS BEEN DISCHARGED
FROM CUSTODY.  IT IS PRESENTED IN THE CONTEXT OF AN APPLICATION OF AN
UNUSUAL NORTH CAROLINA CRIMINAL PROCEDURAL DEVICE KNOWN AS THE "NOLLE
PROSEQUI WITH LEAVE." 

UNDER NORTH CAROLINA CRIMINAL PROCEDURE, WHEN THE PROSECUTING
ATTORNEY OF A COUNTY, DENOMINATED THE SOLICITOR, DETERMINES THAT HE
DOES NOT DESIRE TO PROCEED FURTHER WITH A PROSECUTION, HE MAY TAKE A
NOLLE PROSEQUI, THEREBY DECLARING "THAT HE WILL NOT, AT THAT TIME,
PROSECUTE THE SUIT FURTHER.  ITS EFFECT IS TO PUT THE DEFENDANT WITHOUT
DAY, THAT IS, HE IS DISCHARGED AND PERMITTED TO GO WHITHERSOEVER HE
WILL, WITHOUT ENTERING INTO A RECOGNIZANCE TO APPEAR AT ANY OTHER
TIME."  WILKINSON V. WILKINSON, 159 N.C. 265, 266-267, 74 S.E. 740, 741
(1912).  BUT THE TAKING OF THE NOLLE PROSEQUI DOES NOT PERMANENTLY
TERMINATE PROCEEDINGS ON THE INDICTMENT.  ON THE CONTRARY, "WHEN A
NOLLE PROSEQUI IS ENTERED, THE CASE MAY BE RESTORED TO THE TRIAL DOCKET
WHEN ORDERED BY THE JUDGE UPON THE SOLICITOR'S APPLICATION."  STATE V.
KLOPFER, 266 N.C. 349, 350, 145 S.E.2D 909, 910 (1966).  AND IF THE
SOLICITOR PETITIONS THE COURT TO NOLLE PROSEQUI THE CASE "WITH LEAVE,"
THE CONSENT REQUIRED TO REINSTATE THE PROSECUTION AT A FUTURE DATE IS
IMPLIED IN THE ORDER "AND THE SOLICITOR (WITHOUT FURTHER ORDER) MAY
HAVE THE CASE RESTORED FOR TRIAL."  IBID.  SINCE THE INDICTMENT IS NOT
DISCHARGED BY EITHER A NOLLE PROSEQUI OR A NOLLE PROSEQUI WITH LEAVE,
THE STATUTE OF LIMITATIONS REMAINS TOLLED.  STATE V. WILLIAMS, 151 N.C.
660, 65 S.E. 908 (1909). 

ALTHOUGH ENTRY OF A NOLLE PROSEQUI IS SAID TO BE "USUALLY AND
PROPERLY LEFT TO THE DISCRETION OF THE SOLICITOR," STATE V. MOODY, 69
N.C. 529, 531 (1873), EARLY DECISIONS INDICATE THAT THE STATE WAS ONCE
AWARE THAT THE TRIAL JUDGE WOULD HAVE TO EXERCISE CONTROL OVER THE
PROCEDURE TO PREVENT OPPRESSION OF DEFENDANTS.  SEE STATE V. SMITH, 129
N.C. 546, 40 S.E. 1 (1901); STATE V. THORNTON, 35 N.C. 256 (1852). 
BUT, IN THE PRESENT CASE, NEITHER THE COURT BELOW NOR THE SOLICITOR
OFFERS ANY REASON WHY THE CASE OF PETITIONER SHOULD HAVE BEEN NOLLE
PROSSED EXCEPT FOR THE SUGGESTION OF THE SUPREME COURT THAT THE
SOLICITOR, HAVING TRIED THE DEFENDANT ONCE AND HAVING OBTAINED ONLY A
MISTRIAL, "MAY HAVE CONCLUDED THAT ANOTHER GO AT IT WOULD NOT BE WORTH
THE TIME AND EXPENSE OF ANOTHER EFFORT."  266 N.C., AT 350, 145 S.E.2D,
AT 910.  IN HIS BRIEF IN THIS COURT, THE ATTORNEY GENERAL QUOTES THIS
LANGUAGE FROM THE OPINION BELOW IN SUPPORT OF THE JUDGMENT. 

WHETHER THIS PROCEDURE IS PRESENTLY SUSTAINED BY THE NORTH CAROLINA
COURTS UNDER A STATUTE OR UNDER THEIR CONCEPTION OF THE COMMON-LAW
PROCEDURE IS NOT INDICATED BY THE OPINION OF THE COURT, THE TRANSCRIPT
OR THE BRIEFS OF THE PARTIES IN THE PRESENT CASE.  THE ONLY STATUTORY
REFERENCE TO A NOLLE PROSEQUI IS IN SEC 15-175, GENERAL STATUTES OF
NORTH CAROLINA, (FN1) WHICH ON ITS FACE DOES NOT APPLY TO THE FACTS OF
THIS CASE.  PERHAPS THE PROCEDURE'S GENESIS LIES IN EARLY NINETEENTH
CENTURY DECISIONS OF THE STATE'S SUPREME COURT APPROVING THE USE OF A
NOLLE PROSEQUI WITH LEAVE TO REINSTATE THE INDICTMENT, ALTHOUGH THOSE
EARLY APPLICATIONS OF THE PROCEDURE WERE QUITE DIFFERENT FROM THOSE OF
THE PERIOD FOLLOWING ENACTMENT OF SEC 15-175.  COMPARE STATE V.
THOMPSON, 10 N.C. 613 (1825), AND STATE V. THORNTON, 35 N.C. 256
(1852)(CAPIAS ISSUED IMMEDIATELY AFTER ENTRY OF THE NOLLE PROSEQUI WITH
LEAVE), WITH STATE V. SMITH, 170 N.C. 742, 87 S.E. 98 (1915)(CAPIAS
ISSUED EIGHT YEARS AFTER A NOLLE PROSEQUI WITH LEAVE WAS TAKEN, EVEN
THOUGH THE DEFENDANT HAD BEEN AVAILABLE FOR TRIAL IN 1907). 

THE CONSEQUENCE OF THIS EXTRAORDINARY CRIMINAL PROCEDURE IS MADE
APPARENT BY THE CASE BEFORE THE COURT.  A DEFENDANT INDICTED FOR A
MISDEMEANOR MAY BE DENIED AN OPPORTUNITY TO EXONERATE HIMSELF IN THE
DISCRETION OF THE SOLICITOR AND HELD SUBJECT TO TRIAL, OVER HIS
OBJECTION, THROUGHOUT THE UNLIMITED PERIOD IN WHICH THE SOLICITOR MAY
RESTORE THE CASE TO THE CALENDAR.  DURING THAT PERIOD, THERE IS NO
MEANS BY WHICH HE CAN OBTAIN A DISMISSAL OR HAVE THE CASE RESTORED TO
THE CALENDAR FOR TRIAL.  (FN2) IN SPITE OF THIS RESULT, BOTH THE
SUPREME COURT AND THE ATTORNEY GENERAL STATE AS A FACT, AND RELY UPON
IT FOR AFFIRMANCE IN THIS CASE, THAT THIS PROCEDURE AS APPLIED TO THE
PETITIONER PLACED NO LIMITATIONS UPON HIM, AND WAS IN NO WAY VIOLATIVE
OF HIS RIGHTS.  WITH THIS WE CANNOT AGREE. 

THIS PROCEDURE WAS APPLIED TO THE PETITIONER IN THE FOLLOWING
CIRCUMSTANCES: 

ON FEBRUARY 24, 1964, PETITIONER WAS INDICTED BY THE GRAND JURY OF
ORANGE COUNTY FOR THE CRIME OF CRIMINAL TRESPASS, A MISDEMEANOR
PUNISHABLE BY FINE AND IMPRISONMENT IN AN AMOUNT AND DURATION
DETERMINED BY THE COURT IN THE EXERCISE OF ITS DISCRETION.  (FN3)  THE
BILL CHARGED THAT HE ENTERED A RESTAURANT ON JANUARY 3, 1964, AND,
"AFTER BEING ORDERED  ...  TO LEAVE THE SAID PREMISES, WILFULLY AND
UNLAWFULLY REFUSED TO DO SO, KNOWING OR HAVING REASON TO KNOW THAT HE
...  HAD NO LICENSE THEREFOR  ...  ."  PROSECUTION ON THE INDICTMENT
BEGAN WITH ADMIRABLE PROMPTNESS DURING THE MARCH 1964 SPECIAL CRIMINAL
SESSION OF THE SUPERIOR COURT OF ORANGE COUNTY; BUT, WHEN THE JURY
FAILED TO REACH A VERDICT, THE TRIAL JUDGE DECLARED A MISTRIAL AND
ORDERED THE CASE CONTINUED FOR THE TERM. 

SEVERAL WEEKS PRIOR TO THE APRIL 1965 CRIMINAL SESSION OF THE
SUPERIOR COURT, THE STATE'S SOLICITOR INFORMED PETITIONER OF HIS
INTENTION TO HAVE A NOLLE PROSEQUI WITH LEAVE ENTERED IN THE CASE. 
DURING THE SESSION, PETITIONER, THROUGH HIS ATTORNEY, OPPOSED THE ENTRY
OF SUCH AN ORDER IN OPEN COURT.  THE TRESPASS CHARGE, HE CONTENDED, WAS
ABATED BY THE CIVIL RIGHTS ACT OF 1964 AS CONSTRUED IN HAMM V. CITY OF
ROCK HILL, 379 U.S. 306 (1964).  IN SPITE OF PETITIONER'S OPPOSITION,
THE COURT INDICATED THAT IT WOULD APPROVE ENTRY OF A NOLLE PROSEQUI
WITH LEAVE IF REQUESTED TO DO SO BY THE SOLICITOR.  BUT THE SOLICITOR
DECLINED TO MAKE A MOTION FOR A NOLLE PROSEQUI WITH LEAVE.  INSTEAD, HE
FILED A MOTION WITH THE COURT TO CONTINUE THE CASE FOR YET ANOTHER
TERM, WHICH MOTION WAS GRANTED. 

THE CALENDAR FOR THE AUGUST 1965 CRIMINAL SESSION OF THE COURT DID
NOT LIST KLOPFER'S CASE FOR TRIAL.  TO ASCERTAIN THE STATUS OF HIS
CASE, PETITIONER FILED A MOTION EXPRESSING HIS DESIRE TO HAVE THE
CHARGE PENDING AGAINST HIM "PERMANENTLY CONCLUDED IN ACCORDANCE WITH
THE APPLICABLE LAWS OF THE STATE OF NORTH CAROLINA AND OF THE UNITED
STATES AS SOON AS IS REASONABLY POSSIBLE."  NOTING THAT SOME 18 MONTHS
HAD ELAPSED SINCE THE INDICTMENT, PETITIONER, A PROFESSOR OF ZOOLOGY AT
DUKE UNIVERSITY, CONTENDED THAT THE PENDENCY OF THE INDICTMENT GREATLY
INTERFERED WITH HIS PROFESSIONAL ACTIVITIES AND WITH HIS TRAVEL HERE
AND ABROAD.  "WHEREFORE," THE MOTION CONCLUDED, "THE DEFENDANT ...
PETITIONS THE COURT THAT THE COURT IN THE EXERCISE OF ITS GENERAL
SUPERVISORY JURISDICTION INQUIRE INTO THE TRIAL STATUS OF THE CHARGE
PENDING AGAINST THE DEFENDANT AND  ...  ASCERTAIN THE INTENTION OF THE
STATE IN REGARD TO THE TRIAL OF SAID CHARGE AND AS TO WHEN THE
DEFENDANT WILL BE BROUGHT TO TRIAL." 

IN RESPONSE TO THE MOTION, THE TRIAL JUDGE CONSIDERED THE STATUS OF
PETITIONER'S CASE IN OPEN COURT ON MONDAY, AUGUST 9, 1965, AT WHICH
TIME THE SOLICITOR MOVED THE COURT THAT THE STATE BE PERMITTED TO TAKE
A NOLLE PROSEQUI WITH LEAVE.  EVEN THOUGH NO JUSTIFICATION FOR THE
PROPOSED ENTRY WAS OFFERED BY THE STATE, AND, IN SPITE OF PETITIONER'S
OBJECTION TO THE ORDER, THE COURT GRANTED THE STATE'S MOTION. 

ON APPEAL TO THE SUPREME COURT OF NORTH CAROLINA, PETITIONER
CONTENDED THAT THE ENTRY OF THE NOLLE PROSEQUI WITH LEAVE ORDER
DEPRIVED HIM OF HIS RIGHT TO A SPEEDY TRIAL AS REQUIRED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.  ALTHOUGH THE
SUPREME COURT ACKNOWLEDGED THAT ENTRY OF THE NOLLE PROSEQUI WITH LEAVE
DID NOT PERMANENTLY DISCHARGE THE INDICTMENT, IT NEVERTHELESS
AFFIRMED.  ITS OPINION CONCLUDES: 

"WITHOUT QUESTION A DEFENDANT HAS THE RIGHT TO A SPEEDY TRIAL, IF
THERE IS TO BE A TRIAL.  HOWEVER, WE DO NOT UNDERSTAND THE DEFENDANT
HAS THE RIGHT TO COMPEL THE STATE TO PROSECUTE HIM IF THE STATE'S
PROSECUTOR, IN HIS DISCRETION AND WITH THE COURT'S APPROVAL, ELECTS TO
TAKE A NOLLE PROSEQUI.  IN THIS CASE ONE JURY SEEMS TO HAVE BEEN UNABLE
TO AGREE.  THE SOLICITOR MAY HAVE CONCLUDED THAT ANOTHER GO AT IT WOULD
NOT BE WORTH THE TIME AND EXPENSE OF ANOTHER EFFORT. 

"IN THIS CASE THE SOLICITOR AND THE COURT, IN ENTERING THE NOLLE
PROSEQUI WITH LEAVE FOLLOWED THE CUSTOMARY PROCEDURE IN SUCH CASES. 
THEIR DISCRETION IS NOT REVIEWABLE UNDER THE FACTS DISCLOSED BY THIS
RECORD.  THE ORDER IS AFFIRMED."  266 N.C., AT 350-351, 145 S.E.2D, AT
910. 

THE NORTH CAROLINA SUPREME COURT'S CONCLUSION - THAT THE RIGHT TO A
SPEEDY TRIAL DOES NOT AFFORD AFFIRMATIVE PROTECTION AGAINST AN
UNJUSTIFIED POSTPONEMENT OF TRIAL FOR AN ACCUSED DISCHARGED FROM
CUSTODY - HAS BEEN EXPLICITLY REJECTED BY EVERY OTHER STATE COURT WHICH
HAS CONSIDERED THE QUESTION.   (FN4)  THAT CONCLUSION HAS ALSO BEEN
IMPLICITLY REJECTED BY THE NUMEROUS COURTS WHICH HAVE HELD THAT A NOLLE
PROSSED INDICTMENT MAY NOT BE REINSTATED AT A SUBSEQUENT TERM.  (FN5) 

WE, TOO, BELIEVE THAT THE POSITION TAKEN BY THE COURT BELOW WAS
ERRONEOUS.  THE PETITIONER IS NOT RELIEVED OF THE LIMITATIONS PLACED
UPON HIS LIBERTY BY THIS PROSECUTION MERELY BECAUSE ITS SUSPENSION
PERMITS HIM TO GO "WHITHERSOEVER HE WILL."  THE PENDENCY OF THE
INDICTMENT MAY SUBJECT HIM TO PUBLIC SCORN AND DEPRIVE HIM OF
EMPLOYMENT, AND ALMOST CERTAINLY WILL FORCE CURTAILMENT OF HIS SPEECH,
ASSOCIATIONS AND PARTICIPATION IN UNPOPULAR CAUSES.  BY INDEFINITELY
PROLONGING THIS OPPRESSION, AS WELL AS THE "ANXIETY AND CONCERN
ACCOMPANYING PUBLIC ACCUSATION," (FN6) THE CRIMINAL PROCEDURE CONDONED
IN THIS CASE BY THE SUPREME COURT OF NORTH CAROLINA CLEARLY DENIES THE
PETITIONER THE RIGHT TO A SPEEDY TRIAL WHICH WE HOLD IS GUARANTEED TO
HIM BY THE SIXTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. 

WHILE THERE HAS BEEN A DIFFERENCE OF OPINION AS TO WHAT PROVISIONS OF
THIS AMENDMENT TO THE CONSTITUTION APPLY TO THE STATES THROUGH THE
FOURTEENTH AMENDMENT, THAT QUESTION HAS BEEN SETTLED AS TO SOME OF THEM
IN THE RECENT CASES OF GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), AND
POINTER V. TEXAS, 380 U.S. 400 (1965).  IN THE LATTER CASE, WHICH DEALT
WITH THE CONFRONTATION-OF-WITNESSES PROVISION, WE SAID: 

"IN THE LIGHT OF GIDEON, MALLOY, AND OTHER CASES CITED IN THOSE
OPINIONS HOLDING VARIOUS PROVISIONS OF THE BILL OF RIGHTS APPLICABLE TO
THE STATES BY VIRTUE OF THE FOURTEENTH AMENDMENT, THE STATEMENTS MADE
IN WEST AND SIMILAR CASES GENERALLY DECLARING THAT THE SIXTH AMENDMENT
DOES NOT APPLY TO THE STATES CAN NO LONGER BE REGARDED AS THE LAW.  WE
HOLD THAT PETITIONER WAS ENTITLED TO BE TRIED IN ACCORDANCE WITH THE
PROTECTION OF THE CONFRONTATION GUARANTEE OF THE SIXTH AMENDMENT, AND
THAT THAT GUARANTEE, LIKE THE RIGHT AGAINST COMPELLED SELF
INCRIMINATION, IS 'TO BE ENFORCED AGAINST THE STATES UNDER THE
FOURTEENTH AMENDMENT ACCORDING TO THE SAME STANDARDS THAT PROTECT THOSE
PERSONAL RIGHTS AGAINST FEDERAL ENCROACHMENT.'  MALLOY V. HOGAN, SUPRA,
378 U.S., AT 10."  (FN7) 

WE HOLD HERE THAT THE RIGHT TO A SPEEDY TRIAL IS AS FUNDAMENTAL AS
ANY OF THE RIGHTS SECURED BY THE SIXTH AMENDMENT.  THAT RIGHT HAS ITS
ROOTS AT THE VERY FOUNDATION OF OUR ENGLISH LAW HERITAGE.  ITS FIRST
ARTICULATION IN MODERN JURISPRUDENCE APPEARS TO HAVE BEEN MADE IN MAGNA
CARTA (1215), WHEREIN IT WAS WRITTEN, "WE WILL SELL TO NO MAN, WE WILL
NOT DENY OR DEFER TO ANY MAN EITHER JUSTICE OR RIGHT"; (FN8) BUT
EVIDENCE OF RECOGNITION OF THE RIGHT TO SPEEDY JUSTICE IN EVEN EARLIER
TIMES IS FOUND IN THE ASSIZE OF CLARENDON (1166).  (FN9)  BY THE LATE
THIRTEENTH CENTURY, JUSTICES, ARMED WITH COMMISSIONS OF GAOL DELIVERY
AND/OR OYER AND TERMINER (FN10) WERE VISITING THE COUNTRYSIDE THREE
TIMES A YEAR.  (FN11)  THESE JUSTICES, SIR EDWARD COKE WROTE IN PART II
OF HIS INSTITUTES, "HAVE NOT SUFFERED THE PRISONER TO BE LONG DETAINED,
BUT AT THEIR NEXT COMING HAVE GIVEN THE PRISONER FULL AND SPEEDY
JUSTICE,  ...  WITHOUT DETAINING HIM LONG IN PRISON."  (FN12)  TO COKE,
PROLONGED DETENTION WITHOUT TRIAL WOULD HAVE BEEN CONTRARY TO THE LAW
AND CUSTOM OF ENGLAND; (FN13) BUT HE ALSO BELIEVED THAT THE DELAY IN
TRIAL, BY ITSELF, WOULD BE AN IMPROPER DENIAL OF JUSTICE.  IN HIS
EXPLICATION OF CHAPTER 29 OF THE MAGNA CARTA, HE WROTE THAT THE WORDS
"WE WILL SELL TO NO MAN, WE WILL NOT DENY OR DEFER TO ANY MAN EITHER
JUSTICE OR RIGHT" HAD THE FOLLOWING EFFECT: 

"AND THEREFORE, EVERY SUBJECT OF THIS REALME, FOR INJURY DONE TO HIM
IN BONIS, TERRIS, VEL PERSONA, BY ANY OTHER SUBJECT, BE HE
ECCLESIASTICALL, OR TEMPORALL, FREE, OR BOND, MAN, OR WOMAN, OLD, OR
YOUNG, OR BE HE OUTLAWED, EXCOMMUNICATED, OR ANY OTHER WITHOUT
EXCEPTION, MAY TAKE HIS REMEDY BY THE COURSE OF THE LAW, AND HAVE
JUSTICE, AND RIGHT FOR THE INJURY DONE TO HIM, FREELY WITHOUT SALE,
FULLY WITHOUT ANY DENIALL, AND SPEEDILY WITHOUT DELAY."  (FN14) 
COKE'S INSTITUTES WERE READ IN THE AMERICAN COLONIES BY VIRTUALLY EVERY
STUDENT OF THE LAW.  (FN15)  INDEED, THOMAS JEFFERSON WROTE THAT AT THE
TIME HE STUDIED LAW (1762-1767), "COKE LYTTLETON WAS THE UNIVERSAL
ELEMENTARY BOOK OF LAW STUDENTS."  (FN16)  AND TO JOHN RUTLEDGE OF
SOUTH CAROLINA, THE INSTITUTES SEEMED "TO BE ALMOST THE FOUNDATION OF
OUR LAW."  (FN17)  TO COKE, IN TURN, MAGNA CARTA WAS ONE OF THE
FUNDAMENTAL BASES OF ENGLISH LIBERTY.  (FN18)  THUS, IT IS NOT
SURPRISING THAT WHEN GEORGE MASON DRAFTED THE FIRST OF THE COLONIAL
BILLS OF RIGHTS, (FN19) HE SET FORTH A PRINCIPLE OF MAGNA CARTA, USING
PHRASEOLOGY SIMILAR TO THAT OF COKE'S EXPLICATION:  "IN ALL CAPITAL OR
CRIMINAL PROSECUTIONS," THE VIRGINIA DECLARATION OF RIGHTS OF 1776
PROVIDED, "A MAN HATH A RIGHT ...  TO A SPEEDY TRIAL  ...  ."  (FN20)
THAT THIS RIGHT WAS CONSIDERED FUNDAMENTAL AT THIS EARLY PERIOD IN OUR
HISTORY IS EVIDENCED BY ITS GUARANTEE IN THE CONSTITUTIONS OF SEVERAL
OF THE STATES OF THE NEW NATION, (FN21) AS WELL AS BY ITS PROMINENT
POSITION IN THE SIXTH AMENDMENT.  TODAY, EACH OF THE 50 STATES
GUARANTEES THE RIGHT TO A SPEEDY TRIAL TO ITS CITIZENS. 

THE HISTORY OF THE RIGHT TO A SPEEDY TRIAL AND ITS RECEPTION IN THIS
COUNTRY CLEARLY ESTABLISH THAT IT IS ONE OF THE MOST BASIC RIGHTS
PRESERVED BY OUR CONSTITUTION. 

FOR THE REASONS STATED ABOVE, THE JUDGMENT MUST BE REVERSED AND
REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THE
COURT.  IT IS SO ORDERED. 

FN1  N.C. GEN. STAT. SEC 15-175 (1965): 

"A NOLLE PROSEQUI 'WITH LEAVE' SHALL BE ENTERED IN ALL CRIMINAL
ACTIONS IN WHICH THE INDICTMENT HAS BEEN PENDING FOR TWO TERMS OF COURT
AND THE DEFENDANT HAS NOT BEEN APPREHENDED AND IN WHICH A NOLLE
PROSEQUI HAS NOT BEEN ENTERED, UNLESS THE JUDGE FOR GOOD CAUSE SHOWN
SHALL ORDER OTHERWISE.  THE CLERK OF THE SUPERIOR COURT SHALL ISSUE A
CAPIAS FOR THE ARREST OF ANY DEFENDANT NAMED IN ANY CRIMINAL ACTION IN
WHICH A NOLLE PROSEQUI HAS BEEN ENTERED WHEN HE HAS REASONABLE GROUND
FOR BELIEVING THAT SUCH DEFENDANT MAY BE ARRESTED OR UPON THE
APPLICATION OF THE SOLICITOR OF THE DISTRICT.  WHEN ANY DEFENDANT SHALL
BE ARRESTED IT SHALL BE THE DUTY OF THE CLERK TO ISSUE A SUBPOENA FOR
THE WITNESSES FOR THE STATE INDORSED ON THE INDICTMENT." 

THE PROVISION WAS ORIGINALLY ENACTED IN 1905. 

FN2 ON ORAL ARGUMENT, COUNSEL FOR THE STATE INFORMED THE COURT THAT A
NORTH CAROLINA INDICTMENT COULD BE QUASHED ONLY IF IT CONTAINED A
VITIATING DEFECT.  SEE ALSO N.C. GEN.  STAT. SECS 15-153, 15-155
(1965). 

FN3  N.C. GEN. STAT. SEC 14-134 (SUPP. 1965).  ALTHOUGH NOT EXPRESSLY
LIMITED BY STATUTE, THE EXTENT OF PUNISHMENT IS LIMITED BY N.C. CONST.
1868, ART. I, SEC 14 ("EXCESSIVE BAIL SHOULD NOT BE REQUIRED, NOR
EXCESSIVE FINES IMPOSED, NOR CRUEL OR UNUSUAL PUNISHMENTS INFLICTED"). 
SEE STATE V. DRIVER, 78 N.C. 423 (1878).  DECISIONS OF THE STATE COURTS
INDICATE THAT IMPRISONMENT FOR UP TO TWO YEARS WOULD NOT BE AN "UNUSUAL
PUNISHMENT."  SEE, E.G., STATE V. FARRINGTON, 141 N.C. 844, 53 S.E. 954
(1906).  THE CONSTITUTIONAL LIMITATION UPON THE AMOUNT OF THE FINE HAS
NOT BEEN JUDICIALLY DETERMINED. 

FN4  SEE ROST V. MUNICIPAL COURT OF SOUTHERN JUDICIAL DISTRICT, 184
CAL. APP. 2D 507, 7 CAL. RPTR.  869 (1ST DIST. 1960); KISTLER V. STATE,
64 IND. 371 (1879); JONES V. COMMONWEALTH, 114 KY. 599, 71 S.W. 643
(1903); BARRETT V. STATE, 155 MD. 636, 142 A. 96 (1928); HICKS V.
RECORDER'S COURT OF DETROIT, 236 MICH. 689, 211 N.W. 35 (1926); STATE
V. ARTZ, 154 MINN.  290, 191 N.W. 605 (1923). 

SEE ALSO JACOBSON V. WINTER, 91 IDAHO 11, 415 P.2D 297 (1966); PEOPLE
V. BRYARLY, 23 ILL.  2D 313, 178 N.E.2D 326 (1961); PEOPLE V. PROSSER,
309 N.Y. 353, 130 N.E.2D 891 (1955); STATE V. COUTURE, 156 ME. 231, 163
A.2D 646 (1960); STATE V. KEEFE, 17 WYO. 227, 98 P. 122 (1908)(THE
RIGHT TO A SPEEDY TRIAL MAY BE VIOLATED BY UNDUE DELAY IN BRINGING A
PRISONER CONFINED WITHIN THE STATE TO TRIAL, EVEN THOUGH HE IS NOT HELD
IN CUSTODY UNDER THE INDICTMENT). 

DICTA IN DECISIONS OF THE COLORADO, IOWA, AND UTAH COURTS CLEARLY
INDICATE THAT THESE STATES WOULD ALSO HOLD THAT THE SPEEDY TRIAL RIGHT
WOULD PROTECT A DEFENDANT IN PETITIONER'S POSITION:  SEE IN RE MILLER,
66 COLO. 261, 263-264, 180 P. 749, 750-751 (1919); PINES V. DISTRICT
COURT OF WOODBURY COUNTY, 233 IOWA 1284, 1294, 10 N.W.2D 574, 580
(1943); STATE V. MATHIS, 7 UTAH 2D 100, 103, 319 P.2D 134, 136 (1957). 

ALTHOUGH PENNSYLVANIA HAS NOT DECIDED THE QUESTION PRESENTED BY THIS
CASE, DECISIONS OF ITS SUPREME COURT INDICATE THAT THE "RIGHT TO A
SPEEDY TRIAL" IS ONLY APPLICABLE TO A MAN HELD IN PRISON.  SEE
COMMONWEALTH EX REL. SMITH V. PATTERSON, 409 PA. 500, 187 A.2D 278
(1963).  BUT IN THAT CASE, THE COMMONWEALTH'S SUPREME COURT HELD THAT
THE DELAY IN TRYING THE DEFENDANT AND THE FAILURE TO GIVE HIM NOTICE OF
THE PENDENCY OF A COMPLAINT FOR EIGHT YEARS CONSTITUTED A DENIAL OF DUE
PROCESS.  MOREOVER, RULE 316 OF THE COMMONWEALTH'S RULES OF CRIMINAL
PROCEDURE AUTHORIZES THE COURT TO DISMISS A CASE WHICH HAS NOT BEEN
BROUGHT TO TRIAL WITHIN A "REASONABLE TIME." 

BY RULE OR LEGISLATION IN 17 STATES, ANY DEFENDANT, WHETHER AT LARGE
OR IN CUSTODY, WHOSE TRIAL HAS BEEN UNDULY DELAYED IS ENTITLED TO A
DISMISSAL.  SEE ARIZ. RULE CRIM. PROC. 236; CAL. PEN.  CODE SEC 1382;
GA. CODE ANN. SEC 27-1901 (1953); IDAHO CODE ANN. SEC 19-3501 (1948);
IOWA CODE SEC 795.2 (SUPP. 1966); LA. REV. STAT. SECS 15:7.8-15:7.11
(SUPP. 1962); ME. REV. STAT. ANN., TIT. 15, SEC 1201 (1964); MONT. REV.
CODES ANN. SEC 94-9501 (1947); NEV. REV. STAT. SEC. 178.495; N.J. REV.
RULE CRIM. PROC. 3:11-3 (SUPP. 1966); N.D. CENT. CODE SEC 29-18-01
(1960); OKLA. STAT., TIT. 22, SEC 812 (1951); ORE.  REV.  STAT. SEC
134.120; S.D. CODE SEC 34.2203 (SUPP. 1960); UTAH CODE ANN. SEC 77-51-1
(1953); WASH. REV. CODE SEC. 10.46.010; W.VA. CODE ANN. SEC. 6210
(1961). 

FN5  THIRTY STATES CONTINUE TO PERMIT A PROSECUTING OFFICIAL TO ENTER
A NOLLE PROSEQUI.  LEGISLATION OR COURT DECISIONS IN 13 OF THESE
PROSCRIBE REINSTATEMENT OF THE INDICTMENT AT A SUBSEQUENT TERM.  SEE
LAWSON V. PEOPLE, 63 COLO. 270, 165 P. 771 (1917); PRICE V. COBB, 60
GA. APP. 59, 61, 3 S.E.2D 131, 133 (1939)(BY IMPLICATION); JONES V.
NEWELL, 117 SO. 2D 752 (D.C. APP. FLA., 2D DIST., 1960); STATE V. WONG,
47 HAW.  361, 389 P.2D 439 (1964); PEOPLE V. WATSON, 394 ILL. 177, 68
N.E.2D 265 (1946), CERT. DENIED, 329 U.S. 769; LA. REV. STAT. SEC
15:328 (1950); BARRETT V. STATE, 155 MD. 636, 142 A. 96 (1928); STATE
V. MONTGOMERY, 276 S.W.2D 166 (MO. 1955); IN RE GOLIB, 99 OHIO APP. 88,
130 N.E.2D 855 (1955); STATE EX REL. HOBBS V. MURRELL, 170 TENN. 152,
93 S.W.2D 628 (1936); EX PARTE ISBELL, 48 TEX. CR. R. 252, 87 S.W. 145
(1905); DUDLEY V. STATE, 55 W.VA. 472, 47 S.E.  285 (1904); WOODWORTH
V. MILLS, 61 WIS. 44, 20 N.W. 728 (1884). 

ALABAMA PERMITS REINSTATEMENT OF AN INDICTMENT NOLLE PROSSED WITH
LEAVE, BUT ONLY IF THE DEFENDANT CANNOT BE BROUGHT BEFORE THE COURT. 
SEE ALA. CODE, TIT. 15, SEC. 251 (SUPP.  1965).  THUS THIS PROCEDURE IS
SIMILAR TO THAT OF FILING AWAY THE INDICTMENT, DISCUSSED BELOW. 

OF THE REMAINING STATES, ONLY NORTH CAROLINA AND PENNSYLVANIA HAVE
HELD THAT A NOLLE PROSSED INDICTMENT COULD BE REINSTATED AT A
SUBSEQUENT TERM.  SEE COMMONWEALTH V. MCLAUGHLIN, 293 PA. 218, 142 A.
213 (1928). 

SEVERAL STATES PERMIT THE REMOVAL OF THE INDICTMENT FROM THE TRIAL
DOCKET WITH LEAVE TO REINSTATE AT SOME INDEFINITE FUTURE DATE.  BUT IN
EACH, USE OF THE PROCEDURE HAS BEEN LIMITED TO SITUATIONS IN WHICH THE
DEFENDANT CANNOT BE BROUGHT BEFORE THE COURT OR WHERE HE HAS CONSENTED
TO THE REMOVAL.  SEE, E.G., PEOPLE V. FEWKES, 214 CAL. 142, 4 P.2D 538
(1931); STATE V. DIX, 18 IND. APP. 472, 48 N.E. 261 (1897); LIFSHUTZ V.
STATE, 236 MD. 428, 204 A.2D 541 (1964), CERT. DENIED, 380 U.S. 953;
COMMONWEALTH V. DOWDICAN'S BAIL, 115 MASS.  133 (1874)(INDICTMENT MAY
BE FILED AWAY ONLY AFTER VERDICT AND THEN ONLY WITH THE CONSENT OF THE
ACCUSED); GORDON V. STATE, 127 MISS.  396, 90 SO. 95 (1921)(CONSENT OF
DEFENDANT NECESSARY); RUSH V. STATE, 254 MISS.  641, 182 SO. 2D 214
(1966)(BUT NOT IF DEFENDANT WAS IN A MENTAL INSTITUTION AT THE TIME THE
INDICTMENT WAS RETIRED TO THE FILES).  AT ONE TIME, ILLINOIS DECISIONS
INDICATED THAT WHEN AN ACCUSED WAS IMPRISONED WITHIN THE STATE ON
ANOTHER CHARGE AN INDICTMENT MIGHT BE FILED AWAY WITHOUT HIS CONSENT. 
SEE, E.G., PEOPLE V. KIDD, 357 ILL. 133, 191 N.E. 244 (1934).  BUT
THESE DECISIONS HAVE SINCE BEEN OVERRULED.  SEE PEOPLE V. BRYARLY, 23
ILL. 2D 313, 178 N.E.2D 326 (1961). 

FN6  UNITED STATES V. EWELL, 383 U.S. 116, 120 (1966). 

FN7  380 U.S., AT 406. 

FN8  MAGNA CARTA, C. 29 (C. 40 OF KING JOHN'S CHARTER OF 1215)(1225),
TRANSLATED AND QUOTED IN COKE, THE SECOND PART OF THE INSTITUTES OF THE
LAWS OF ENGLAND 45 (BROOKE, 5TH ED., 1797). 

FN9  "4.  AND WHEN A ROBBER OR MURDERER OR THIEF OR RECEIVER OF THEM
HAS BEEN ARRESTED THROUGH THE AFORESAID OATH, IF THE JUSTICES ARE NOT
ABOUT TO COME SPEEDILY ENOUGH INTO THE COUNTRY WHERE THEY HAVE BEEN
TAKEN, LET THE SHERIFFS SEND WORD TO THE NEAREST JUSTICE BY SOME WELL
INFORMED PERSON THAT THEY HAVE ARRESTED SUCH MEN, AND THE JUSTICES
SHALL SEND BACK WORD TO THE SHERIFFS INFORMING THEM WHERE THEY DESIRE
THE MEN TO BE BROUGHT BEFORE THEM; AND LET THE SHERIFFS BRING THEM
BEFORE THE JUSTICES."  2 ENGLISH HISTORICAL DOCUMENTS 408 (1953). 

FN10  AN EXAMPLE OF THE COMMISSION OF GAOL DELIVERY IS SET FORTH IN
GOEBEL, CASES AND MATERIALS ON THE DEVELOPMENT OF LEGAL INSTITUTIONS 53
(7TH REV. 1946): 

"THE LORD KING TO HIS BELOVED AND FAITHFUL STEPHEN DE SEGRAVE AND
WILLIAM FITZ WARIN, GREETING.  KNOW THAT WE HAVE APPOINTED YOU JUSTICES
TO DELIVER OUR GAOL AT GLOUCESTER, IN ACCORDANCE WITH THE CUSTOM OF OUR
REALM, OF THE PRISONERS ARRESTED AND HELD THERE.  AND HENCE WE ORDER
YOU THAT IN COMPANY WITH THE CORONERS OF THE COUNTY OF GLOUCESTER YOU
CONVENE AT GLOUCESTER ON THE MORROW OF THE FESTIVAL OF THE HOLY TRINITY
IN THE TWELFTH YEAR OF OUR REIGN (MONDAY, MAY 22, 1228), TO DELIVER THE
AFOREMENTIONED GAOL, AS AFORESAID, FOR WE HAVE ORDERED OUR SHERIFF OF
GLOUCESTERSHIRE THAT AT THE AFORESAID TIME AND PLACE HE CAUSE TO COME
BEFORE YOU ALL THE PRISONERS IN THE AFORESAID GAOL AND ALL PERSONS
ATTACHED TO APPEAR AGAINST THEM AND ON ACCOUNT OF THEM.  IN WITNESS
WHEREOF, ETC. DATED APRIL 20, IN THE TWELFTH YEAR OF OUR REIGN." 

"THE JUDGES COMMISSIONED IN A GENERAL OYER AND TERMINER COMMISSION,"
PROFESSOR GOEBEL WRITES, "ARE ORDERED TO INQUIRE BY GRAND JURY OF NAMED
CRIMES, FROM TREASONS TO THE PETTIEST OFFENCE, AS TO ALL PARTICULARS
AND TO HEAR AND DETERMINE THESE ACCORDING TO THE LAW AND CUSTOM OF THE
REALM."  ID., AT 54. 

FN11  ID., AT 54. 

FN12  COKE, OP. CIT. SUPRA, N. 8, AT 43. 

FN13  SEE IBID. 

FN14  ID., AT 55.  "HEREBY IT APPEARETH," COKE STATED IN THE NEXT
PARAGRAPH, "THAT JUSTICE MUST HAVE THREE QUALITIES, IT MUST BE LIBERA,
QUIA NIHIL INIQUIUS VENALI JUSTITIA; PLENA, QUIA JUSTITIA NON DEBET
CLAUDICARE; ET CELERIS, QUIA DILATIO EST QUAEDAM NEGATIO; AND THEN IT
IS BOTH JUSTICE AND RIGHT."  LATER IN THE EXPLICATION OF CHAPTER 29,
COKE WROTE THAT IN CONFORMITY WITH THE PROMISE NOT TO DELAY JUSTICE,
ALL OF THE KING'S "COMMISSIONS OF OIER, AND TERMINER, OF GOALE
DELIVERY, OF THE PEACE, &C. HAVE THIS CLAUSE, FACTURI QUOD AD JUSTITIAM
PERTINET, SECUNDUM LEGEM, AND CONSUETUDINEM ANGLIAE, THAT IS, TO DOE
JUSTICE AND RIGHT, ACCORDING TO THE RULE OF THE LAW AND CUSTOME OF
ENGLAND ...  ." 

FN15  SEE WARREN, HISTORY OF THE AMERICAN BAR 157-187 (1911); MEADOR,
HABEAS CORPUS AND MAGNA CARTA 23-24 (1966). 

FN16  QUOTED IN WARREN, OP. CIT. SUPRA, N. 15, AT 174. 

FN17  QUOTED IN BOWEN, THE LION AND THE THRONE 514 (1956). 

FN18  SEE COKE, OP. CIT. SUPRA, N. 8, AT A4 (PROEME). 

FN19  SEE 1 ROWLAND, THE LIFE OF GEORGE MASON 234-266 (1892). 

FN20  SEE VA. DECLARATION OF RIGHTS, 1776, SEC 8. 

FN21  SEE DEL. CONST., 1792, ART. I, SEC 7; MD. DECLARATION OF
RIGHTS, 1776, ART. XIX; PA. DECLARATION OF RIGHTS, 1776, ART. IX; VA.
DECLARATION OF RIGHTS, 1776, SEC 8.  MASS. CONST., 1780, PART I, ART.
XI, PROVIDED: 

"EVERY SUBJECT OF THE COMMONWEALTH OUGHT TO FIND A CERTAIN REMEDY, BY
HAVING RECOURSE TO THE LAWS, FOR ALL INJURIES OR WRONGS WHICH HE MAY
RECEIVE IN HIS PERSON, PROPERTY, OR CHARACTER.  HE OUGHT TO OBTAIN
RIGHT AND JUSTICE FREELY, AND WITHOUT BEING OBLIGED TO PURCHASE IT;
COMPLETELY, AND WITHOUT ANY DENIAL; PROMPTLY, AND WITHOUT DELAY;
CONFORMABLY TO THE LAWS." 

THIS HAS BEEN CONSTRUED AS GUARANTEEING TO ALL CITIZENS THE RIGHT TO
A SPEEDY TRIAL.  SEE COMMONWEALTH V. HANLEY, 337 MASS. 384, 149 N.E.2D
608 (1958).  A SIMILAR PROVISION WAS INCLUDED IN THE NEW HAMPSHIRE
CONSTITUTION OF 1784, PART I, ART. XIV. 

KENTUCKY, TENNESSEE, AND VERMONT, THE THREE STATES WHICH WERE
ADMITTED TO THE UNION DURING THE EIGHTEENTH CENTURY, SPECIFICALLY
GUARANTEED THE RIGHT TO A SPEEDY TRIAL IN THEIR CONSTITUTIONS.  SEE VT.
CONST. 1786, C. I, ART. XIV; KY. CONST. 1792, ART. XII, SEC 10; TENN.
CONST. 1796, ART. XI, SEC 9. 

MR. JUSTICE STEWART CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN CONCURRING IN THE RESULT. 

WHILE I ENTIRELY AGREE WITH THE RESULT REACHED BY THE COURT, I AM
UNABLE TO SUBSCRIBE TO THE CONSTITUTIONAL PREMISES UPON WHICH THAT
RESULT IS BASED - QUITE EVIDENTLY THE VIEWPOINT THAT THE FOURTEENTH
AMENDMENT "INCORPORATES" OR "ABSORBS" AS SUCH ALL OR SOME OF THE
SPECIFIC PROVISIONS OF THE BILL OF RIGHTS.  I DO NOT BELIEVE THAT THIS
IS SOUND CONSTITUTIONAL DOCTRINE.  SEE MY OPINION CONCURRING IN THE
RESULT IN POINTER V. TEXAS, 380 U.S. 400, 408. 

I WOULD REST DECISION OF THIS CASE NOT ON THE "SPEEDY TRIAL"
PROVISION OF THE SIXTH AMENDMENT, BUT ON THE GROUND THAT THIS UNUSUAL
NORTH CAROLINA PROCEDURE, WHICH IN EFFECT ALLOWS STATE PROSECUTING
OFFICIALS TO PUT A PERSON UNDER THE CLOUD OF AN UNLIQUIDATED CRIMINAL
CHARGE FOR AN INDETERMINATE PERIOD, VIOLATES THE REQUIREMENT OF
FUNDAMENTAL FAIRNESS ASSURED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  TO SUPPORT THAT CONCLUSION I NEED ONLY REFER TO
THE TRADITIONAL CONCEPTS OF DUE PROCESS SET FORTH IN THE OPINION OF THE
CHIEF JUSTICE. 
..END :























FEDERAL TRADE COMMISSION V. JANTZEN 386 U.S. 228 


NO. 310.  ARGUED FEBRUARY 14, 1967.  - DECIDED MARCH 13, 1967.  - 356
F.2D 253, REVERSED AND REMANDED. 


RESPONDENT, A MANUFACTURER, IN 1958 CONSENTED TO THE ENTRY OF A
FEDERAL TRADE COMMISSION (FTC) CEASE-AND-DESIST ORDER PROHIBITING IT
FROM ENGAGING IN FURTHER DISCRIMINATORY ACTIVITIES VIOLATING SEC 2(D)
OF THE CLAYTON ACT, AND THE FTC ADOPTED THE ORDER IN 1959.  IN 1964,
FOLLOWING CHARGES OF ADDITIONAL DISCRIMINATORY ACTIVITIES, RESPONDENT
STIPULATED THAT IT HAD COMMITTED VIOLATIONS OF THE 1959 ORDER.  THE FTC
PETITIONED THE COURT OF APPEALS TO ENFORCE THE ORIGINAL ORDER UNDER THE
THIRD PARAGRAPH OF SEC 11 OF THE ORIGINAL CLAYTON ACT, WHICH AUTHORIZED
THE FTC TO APPLY TO A COURT OF APPEALS FOR ENFORCEMENT OF ITS ORDERS. 
THE COURT OF APPEALS DISMISSED THE PETITION FOR WANT OF JURISDICTION,
UPHOLDING RESPONDENT'S CONTENTION THAT A 1959 AMENDMENT (THE FINALITY
ACT) SUBSTITUTING NEW ENFORCEMENT REMEDIES FOR THOSE IN SEC 11 HAD
REPEALED THE AUTHORITY OF THE FTC TO SEEK, AND OF THE COURTS TO GRANT,
ENFORCEMENT OF FTC CEASE-AND-DESIST ORDERS ENTERED BEFORE THE FINALITY
ACT TOOK EFFECT.  HELD:  FTC ORDERS UNDER THE CLAYTON ACT ENTERED
BEFORE THE FINALITY ACT WAS ENACTED REMAIN ENFORCEABLE UNDER SEC 11 OF
THE CLAYTON ACT.  PP. 233-236. 

(A)  THE PROVISION IN SEC 2 OF THE FINALITY ACT MAKING THE ACT'S
PROVISIONS INAPPLICABLE TO A CLAYTON ACT "PROCEEDING INITIATED" BEFORE
ENACTMENT OF THE FINALITY ACT REFERS TO THE FILING OF THE "PROCEEDING"
BEFORE THE FTC AND IS NOT LIMITED TO THE APPLICATION FOR ENFORCEMENT OR
PETITION FOR REVIEW IN A COURT OF APPEALS.  P. 233. 

(B)  THE EXPRESS PURPOSE OF THE FINALITY ACT "TO PROVIDE FOR THE MORE
EXPEDITIOUS ENFORCEMENT OF CEASE AND DESIST ORDERS" AND THE ACT'S
LEGISLATIVE HISTORY ARE INCONSISTENT WITH GIVING ABSOLUTION TO THE
ALMOST 400 PROVEN VIOLATORS OF THE CLAYTON ACT WHO ARE SUBJECT TO PRE
FINALITY ACT ORDERS OF THE FTC.  P. 234. 

FEDERAL TRADE COMMISSION V. JANTZEN, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE EFFECT OF THE ACT OF JULY 23, 1959, 73 STAT.
243 (FINALITY ACT), UPON ORDERS ISSUED BY THE FEDERAL TRADE COMMISSION
UNDER SEC 11 OF THE CLAYTON ACT, 38 STAT. 734, PRIOR TO THE DATE OF THE
FORMER ACT.  THE RESPONDENT CLAIMS THAT THE FINALITY ACT REPEALED THE
ENFORCEMENT PROVISIONS OF SEC 11 OF THE CLAYTON ACT, 15 U.S.C. SEC 21
(1958 ED.), AND THAT ORDERS OF THE COMMISSION ENTERED PRIOR TO THE
ENACTMENT OF THE FINALITY ACT ARE NOT NOW ENFORCEABLE.  THE COURT OF
APPEALS AGREED, HELD THAT IT HAD NO JURISDICTION TO ENFORCE SUCH ORDERS
AND DIRECTED THAT THE PROCEEDING BE DISMISSED.  356 F.2D 253.  IN VIEW
OF THE PENDENCY OF ALMOST 400 SUCH ORDERS AND THE CONFLICT AMONG THE
CIRCUITS (FN1) ON THE POINT, WE GRANTED CERTIORARI.  385 U.S. 810. 

                                        I. 

THE FACTS ARE NOT DISPUTED, SAVE ON POINTS NOT RELEVANT HERE, AND
WILL NOT BE STATED IN DETAIL.  JANTZEN MANUFACTURES MEN'S, WOMEN'S, AND
CHILDREN'S APPAREL.  ON SEPTEMBER 4, 1958, IT WAS CHARGED BY THE
COMMISSION WITH HAVING VIOLATED SEC 2(D) OF THE CLAYTON ACT BY ALLOWING
DISCRIMINATORY ADVERTISING AND PROMOTIONAL ALLOWANCES TO CERTAIN OF ITS
CUSTOMERS.  JANTZEN DID NOT ANSWER THE COMPLAINT.  HOWEVER, IT
CONSENTED TO THE ENTRY OF A CEASE-AND-DESIST ORDER AGAINST IT
PROHIBITING FURTHER DISCRIMINATION IN ADVERTISING AND PROMOTIONAL
ACTIVITIES.  THIS AGREEMENT AND A FORM OF ORDER WERE APPROVED BY A
HEARING EXAMINER AND ON JANUARY 16, 1959, THE ORDER WAS ADOPTED BY THE
COMMISSION.  ON JULY 22, 1964, SOME FIVE YEARS AFTER THE ADOPTION OF
THE FINALITY ACT, THE COMMISSION ORDERED AN INVESTIGATION INTO CHARGES
THAT JANTZEN HAD VIOLATED THE 1959 CONSENT ORDER.  JANTZEN STIPULATED
BEFORE A HEARING EXAMINER THAT IT HAD VIOLATED THE CONSENT ORDER BY
GRANTING DISCRIMINATORY ALLOWANCES TO CUSTOMERS IN CHATTANOOGA, TENN.,
AND BROOKLYN, N.Y.  THE COMMISSION THEREAFTER CONCLUDED THAT JANTZEN
HAD VIOLATED THE ORDER.  IT THEN APPLIED TO THE COURT OF APPEALS FOR AN
ORDER AFFIRMING AND ENFORCING THE ORIGINAL ORDER.  THE APPLICATION WAS
BASED ON THE PROVISIONS OF THE THIRD PARAGRAPH OF SEC 11 OF THE
ORIGINAL CLAYTON ACT, WHICH AUTHORIZED THE COMMISSION, IN THE EVENT
SUCH AN ORDER WAS NOT OBEYED, TO APPLY TO A COURT OF APPEALS FOR ITS
"ENFORCEMENT."  JANTZEN CLAIMED THAT THE AMENDMENT OF SEC 11 BY THE
FINALITY ACT RESULTED IN A REPEAL OF THE COMMISSION'S AUTHORITY TO
SEEK, AND THE COURTS' TO GRANT, AFFIRMANCE AND ENFORCEMENT OF SUCH
ORDERS.  THE COURT OF APPEALS AGREED AND DISMISSED THE APPLICATION FOR
LACK OF JURISDICTION.   WE REVERSE AND REMAND THE PROCEEDINGS FOR
FURTHER CONSIDERATION IN LIGHT OF THIS OPINION. 

                                II. 

WE START WITH THE PROPOSITION THAT THE CONGRESS INTENDED BY ITS
ENACTMENT OF THE FINALITY ACT OF 1959 TO STRENGTHEN THE HAND OF THE
COMMISSION IN THE ENFORCEMENT OF THE CLAYTON ACT.  AS THE REPORT OF THE
COMMITTEE ON THE JUDICIARY OF THE SENATE STATED:  "THE EFFECTIVENESS OF
THE CLAYTON ACT  ... HAS LONG BEEN HANDICAPPED BY THE ABSENCE OF
ADEQUATE ENFORCEMENT PROVISIONS  ...  .  S. 726 WOULD PUT TEETH INTO
CLAYTON ACT ORDERS AND WOULD FILL THE ENFORCEMENT VOID WHICH HAS
EXISTED FOR MANY YEARS."  S. REP. NO. 83, 86TH CONG., 1ST SESS., 2
(1959).  THE PROCEDURES EXISTING PRIOR TO THE ADOPTION OF THE FINALITY
ACT REQUIRED THE COMMISSION TO INVESTIGATE, AND AFTER COMPLAINT, PROVE
A VIOLATION OF THE CLAYTON ACT BEFORE IT COULD ISSUE A CEASE-AND-DESIST
ORDER.  AFTER ITS ISSUANCE A VIOLATION OF THE ORDER HAD TO BE
INVESTIGATED AND PROVED BEFORE THE COMMISSION MIGHT OBTAIN AN ORDER
COMPELLING ITS OBEDIENCE.  ONLY THEN COULD A COURT OF APPEALS ORDER
ENFORCEMENT.  AND UNDER FEDERAL TRADE COMM'N V. RUBEROID CO., 343 U.S.
470 (1952), A CONTEMPT PROCEEDING WOULD NOT LIE EXCEPT ON ALLEGATIONS
OF VIOLATION OF THE ACT A THIRD TIME AND PROOF OF A FAILURE OR REFUSAL
TO OBEY THE COMMISSION'S ORDER, PREVIOUSLY AFFIRMED. 

THE FINALITY ACT ELIMINATED THESE "LABORIOUS, TIME CONSUMING, AND
VERY EXPENSIVE" PROCEDURES.  S. REP. NO. 83, SUPRA, AT 2.  AS
CONGRESSMAN HUDDLESTON, ONE OF THE PRINCIPAL SUPPORTERS OF THE BILL
WHICH LATER BECAME THE ACT, STATED TO THE HOUSE: 

"THE BILL  ...  IS IN EFFECT A PERFECTING AMENDMENT TO THE CLAYTON
ACT.  IT HAS NO OTHER PURPOSE THAN TO EFFECT THE WILL OF CONGRESS WITH
RESPECT TO THE ROLE OF THE FEDERAL TRADE COMMISSION IN CLAYTON ACT
ENFORCEMENT IN THE SAME MANNER AND TO THE SAME DEGREE THAT THE WILL OF
CONGRESS WAS EFFECTUATED BY THE WHEELER-LEA AMENDMENTS TO THE FEDERAL
TRADE COMMISSION ACT."  105 CONG. REC. 12732. 

THE REMARKS OF CONGRESSMAN CELLER, CHAIRMAN OF THE HOUSE JUDICIARY
COMMITTEE, OF CONGRESSMAN ROOSEVELT AND OF OTHER SUPPORTERS OF THE BILL
WERE SUBSTANTIALLY THE SAME.  105 CONG. REC. 12730-12733. 

THE WHEELER-LEA AMENDMENT CLARIFIED THE PROCEDURES OF THE FEDERAL
TRADE COMMISSION ACT BUT DID NOT AMEND THOSE OF THE CLAYTON ACT.  UNDER
THE WHEELER-LEA AMENDMENT ORDERS ISSUED BY THE COMMISSION WERE TO
BECOME FINAL 60 DAYS AFTER THEIR ISSUANCE OR UPON AFFIRMANCE BY A COURT
OF APPEALS IN WHICH A PETITION FOR REVIEW HAD BEEN FILED.  HOWEVER, SEC
5(A) OF THE AMENDMENT EXPRESSLY PROVIDED THAT ORDERS OUTSTANDING AT THE
TIME OF THE ADOPTION OF THE AMENDMENT WOULD BECOME FINAL 60 DAYS AFTER
THE LATTER DATE OR UPON AFFIRMANCE IN REVIEW PROCEEDINGS INSTITUTED
DURING THAT 60-DAY PERIOD.  52 STAT. 117.  THE FINALITY ACT INSTEAD OF
USING THE LANGUAGE OF SEC 5(A) OF THE WHEELER-LEA AMENDMENT CONTAINS A
SPECIAL PROVISION, SEC 2, WHICH READS AS FOLLOWS: 

"THE AMENDMENTS MADE BY SECTION 1 SHALL HAVE NO APPLICATION TO ANY
PROCEEDING INITIATED BEFORE THE DATE OF ENACTMENT OF THIS ACT UNDER THE
THIRD OR FOURTH PARAGRAPH OF SECTION 11 OF THE (CLAYTON) ACT  ...  .
EACH SUCH PROCEEDING SHALL BE GOVERNED BY THE PROVISIONS OF SUCH
THIS ACT." 

THE COURT OF APPEALS THOUGHT THE USE OF THIS LANGUAGE WAS SIGNIFICANT
IN THAT, UNLIKE SEC 5(A), IT "DOES NOT DEAL WITH CEASE AND DESIST
ORDERS ISSUED BEFORE ITS EFFECTIVE DATE, NOR PROVIDE FOR THEIR BECOMING
FINAL WITHIN THE MEANING OF THE AMENDED ACT.  IT DEALS SOLELY WITH
PROCEEDINGS BEGUN IN A COURT OF APPEALS  ...  .  THUS THE THIRD
PARAGRAPH (OF SEC 11) IS EXPRESSLY CONTINUED IN EFFECT FOR THIS VERY
LIMITED PURPOSE, NAMELY, THE COMPLETION OF PROCEEDINGS FOR ENFORCEMENT
INITIATED BY THE COMMISSION IN A COURT OF APPEALS  ...  .  THIS IS A
STRONG INDICATION THAT THE CONGRESS KNEW, AND INTENDED, THAT IT WAS
REPEALED FOR OTHER PURPOSES."  THE COURT OF APPEALS BUTTRESSED THIS
READING OF THE FINALITY ACT BY NOTING THAT THE COMMISSION ORIGINALLY
TOOK THE POSITION "THAT EXISTING CLAYTON ACT ORDERS WOULD BECOME FINAL
WITHIN 60 DAYS, UNDER THE NEW LAW, JUST AS UNDER THE WHEELER-LEA ACT
...  ."  356 F.2D, AT 257.  SEE SPERRY RAND CORP. V. F.T.C., 110 U.S.
APP. D.C. 1, 288 F.2D 403 (1961); F.T.C. V. NASH-FINCH CO., 110 U.S.
APP. D.C. 5, 288 F.2D 407 (1961).  FROM THIS, THE COURT INDICATED THAT
THIS CHANGE OF POSITION BY THE COMMISSION POINTED UP ITS CONCLUSION
THAT "THE REPEAL IN THIS CASE WAS EXPRESS."  356 F.2D, AT 257. 

                             III. 

WE CANNOT AGREE.  ONE ERROR OF THE COURT OF APPEALS SEEMS TO BE THE
LIMITED SCOPE IT GIVES THE PHRASE "PROCEEDING INITIATED BEFORE THE DATE
OF ENACTMENT OF THIS ACT."  THE COURT OF APPEALS THOUGHT THIS INCLUDED
ONLY THE APPLICATION FOR ENFORCEMENT UNDER PARAGRAPH THREE OR THE
PETITION FOR REVIEW UNDER PARAGRAPH FOUR OF THE ORIGINAL SEC 11 OF THE
ACT.  WE THINK NOT.  WE BELIEVE THE WORD "PROCEEDING" WAS USED IN THE
SENSE THAT IT WAS EMPLOYED THROUGHOUT SEC 11 PRIOR TO THE AMENDMENT,
NAMELY THE ACTION BROUGHT BY THE COMMISSION AGAINST THE ALLEGED
VIOLATOR OF THE CLAYTON ACT.  IT FOLLOWS THAT THE "PROCEEDING
INITIATED" MEANT THE FILING OF THE "PROCEEDING" BEFORE THE COMMISSION
AND WAS NOT LIMITED TO THE APPLICATION FOR ENFORCEMENT OR PETITION FOR
REVIEW.  THIS IS MADE CLEAR TO US BY THE LAST SENTENCE OF SEC 2:  "EACH
SUCH PROCEEDING SHALL BE GOVERNED BY THE PROVISIONS OF SUCH SECTION
(SEC 11 OF THE CLAYTON ACT) AS THEY EXISTED ON THE DAY PRECEDING THE
DATE OF ENACTMENT OF THIS ACT."  WE EMPHASIZE THAT HERE THE CONGRESS
SAID "SECTION" NOT PARAGRAPHS 3-7, INCLUSIVE, OF THE SECTION.  IT
FOLLOWS THAT THE PROVISIONS OF THE ENTIRE SECTION WERE PRESERVED INTACT
AND GOVERNED ALL ORDERS PREDATING THE FINALITY ACT.  THE APPARENT
REASON FOR THIS VARIANCE FROM THE PROCEDURE OF THE WHEELER-LEA ACT WAS
BECAUSE OF THE HEAVY PENALTIES WHICH THE CONGRESS ATTACHED TO THE
VIOLATION OF FINAL ORDERS OF THE COMMISSION UNDER THE FINALITY ACT. 
(FN2)  IT, THEREFORE, WISHED TO MAKE CLEAR THAT NOT ONLY APPLICATIONS
FOR ENFORCEMENT OF PRE-FINALITY ACT ORDERS AND PETITIONS FOR REVIEW OF
SUCH ORDERS BUT ANY ACTION OF THE COMMISSION WITH REFERENCE TO PRE
FINALITY ACT ORDERS WOULD BE GOVERNED BY THE PROVISIONS OF SEC 11 OF
THE CLAYTON ACT "AS THEY EXISTED ON THE DAY PRECEDING THE DATE OF
ENACTMENT OF THIS (FINALITY) ACT."  WE BELIEVE THAT THIS INTERPRETATION
IS IMPLICIT IN OUR OPINION ON THE SECOND REVIEW BY THIS COURT OF
FEDERAL TRADE COMM'N V. HENRY BROCH & CO., 368 U.S. 360 (1962), WHERE
MR. JUSTICE BRENNAN HELD THAT THE 1959 AMENDMENTS TO SEC 11 OF THE
CLAYTON ACT "DO NOT APPLY TO ENFORCEMENT OF THE INSTANT ORDER."  AT
365.  IN NOTE 5, ON P. 365, THE OPINION POINTED OUT THAT THE ORDER "WAS
ENTERED BY THE COMMISSION ON DECEMBER 10, 1957.  THE PROCEDURES ENACTED
BY THE 1959 AMENDMENTS THEREFORE DO NOT APPLY TO IT.  SEE SPERRY RAND
CORP. V. FEDERAL TRADE COMM'N, 110 U.S. APP. D.C. 1, 288 F.2D 403."  IT
IS SIGNIFICANT THAT SPERRY RAND SPECIFICALLY HELD THAT "ENFORCEMENT DUE
TO ANY VIOLATION OF THE (PRE-FINALITY ACT) CONSENT ORDER WHICH MIGHT
OCCUR IS LEFT TO THE PROVISIONS OF THE STATUTE AS THEY EXISTED AT THE
TIME THE ORDER WAS ENTERED."  AT 4, 288 F.2D, AT 406.  SUCH A HOLDING
HERE IS SUPPORTED BY THE FACT THAT THE FINALITY ACT NOWHERE DENIES THE
COMMISSION THE POWER TO ENFORCE PRE-EXISTING ORDERS.  AT MOST ITS
PROVISIONS ARE SILENT WITH REGARD TO SUCH AUTHORITY.  FURTHERMORE, THE
CAPTION OF THE FINALITY ACT ITSELF AS WELL AS THE LEGISLATIVE HISTORY
GIVES ADDED WEIGHT TO OUR INTERPRETATION.  THE CAPTION RECITES THE
PURPOSE OF THE ACT TO BE "TO PROVIDE FOR THE MORE EXPEDITIOUS
ENFORCEMENT OF CEASE AND DESIST ORDERS  ...  ."  73 STAT. 243.  SUCH A
PURPOSE WOULD CERTAINLY NOT INCLUDE MAKING APPROXIMATELY 400 ORDERS
DEAD LETTERS.  AS WE HAVE NOTED PREVIOUSLY THE LEGISLATIVE HISTORY
SHOWS BEYOND CONTRADICTION THAT NOT ONLY ITS SPONSORS BUT THE
RESPONSIBLE COMMITTEES REPORTING THE BILL FOR PASSAGE BELIEVED "THAT
THIS LEGISLATION WILL STRENGTHEN THE ENFORCEMENT PROVISIONS OF SECTION
11 OF THE CLAYTON ACT  ... ." S. REP.  NO. 83, SUPRA, AT 3.  GIVING
SOME 400 PROVEN VIOLATORS ABSOLUTION FROM PRIOR ORDERS OF THE
COMMISSION WOULD HARDLY COMPORT WITH SUCH A CONGRESSIONAL INTENT.  THE
COURT OF APPEALS BOTTOMED ITS OPINION ON THE LANGUAGE USED IN THE
OPENING SENTENCE OF SUBSECTION (C) OF THE FINALITY ACT READING THAT THE
"THIRD, FOURTH, FIFTH, SIXTH, AND SEVENTH PARAGRAPHS OF" SEC 11 OF THE
CLAYTON ACT "ARE AMENDED TO READ AS FOLLOWS."  BUT WE MUST READ THE ACT
AS A WHOLE AS WE HAVE SEC 2 HERETOFORE.  AND IN SO DOING WE CANNOT, AS
MR. JUSTICE DOUGLAS SAID, IGNORE THE "COMMON SENSE, PRECEDENT, AND
LEGISLATIVE HISTORY" OF THE SETTING THAT GAVE IT BIRTH.  UNITED STATES
V. STANDARD OIL CO., 384 U.S. 224, 225 (1966).  AND AS MR. JUSTICE
HOLMES SAID MANY YEARS AGO:

"THE LEGISLATURE HAS THE POWER TO DECIDE WHAT THE POLICY OF THE LAW
SHALL BE, AND IF IT HAS INTIMATED ITS WILL, HOWEVER INDIRECTLY, THAT
WILL SHOULD BE RECOGNIZED AND OBEYED.  THE MAJOR PREMISE OF THE
CONCLUSION EXPRESSED IN A STATUTE, THE CHANGE OF POLICY THAT INDUCES
THE ENACTMENT, MAY NOT BE SET OUT IN TERMS, BUT IT IS NOT AN ADEQUATE
DISCHARGE OF DUTY FOR COURTS TO SAY:  WE SEE WHAT YOU ARE DRIVING AT,
BUT YOU HAVE NOT SAID IT, AND THEREFORE WE SHALL GO ON AS BEFORE." 
JOHNSON V. UNITED STATES, 163 F. 30, 32 (1908). 

BUT WHETHER OR NOT WE ARE CORRECT IN OUR APPLICATION AND
INTERPRETATION WE HAVE CONCLUDED THAT A SENSIBLE CONSTRUCTION OF THE
FINALITY ACT COMPELS THE OPPOSITE RESULT TO THAT REACHED BY THE COURT
OF APPEALS.  THAT COURT WOULD GRANT REVIEW AND ENFORCEMENT OF
PROCEEDINGS UNDER THE OLD PROCEDURES WHERE THE PETITION FOR REVIEW OR
THE APPLICATION FOR ENFORCEMENT WAS FILED PRIOR TO THE DATE OF THE
ENACTMENT OF THE FINALITY ACT BUT ORDERS FROM WHICH NO PETITION OR
APPLICATION WAS EVER FILED WOULD NOT BE CAPABLE OF ENFORCEMENT.  THIS
WOULD SUBJECT VIOLATORS WHO SOUGHT REVIEW TO THE SANCTIONS OF THE
ORDERS AGAINST THEM WITH IMPUNITY.  CONSEQUENTLY, ALMOST 400 SEPARATE
VIOLATORS WOULD BE FORGIVEN.  IT IS NO ANSWER TO SAY THAT THE
COMMISSION COULD FILE NEW COMPLAINTS WHICH WOULD COME UNDER THE NEW
PROCEDURES.  THE FACT IS THAT SOME 400 PARTICULARIZED ORDERS WRITTEN TO
CORRECT SPECIFIC MISCHIEF VIOLATIVE OF THE CLAYTON ACT WOULD BE
UNENFORCEABLE.  THERE IS QUITE A DIFFERENCE BETWEEN PROVING A VIOLATION
OF THE CLAYTON ACT AND A FAILURE TO OBEY A SPECIFIC ORDER OF THE
COMMISSION.  LONG, TEDIOUS, AND COSTLY INVESTIGATION, PROOF OF INJURY
TO COMPETITION AS WELL AS OTHER AFFIRMATIVE REQUIREMENTS NECESSARY TO
THE ISSUANCE OF AN ORDER AND MANY DEFENSES SUCH AS COST JUSTIFICATION,
MEETING COMPETITION, EXCLUSIVE DEALING, ETC., ARE ALL AVOIDED. 
PARTICULARLY IN MERGER CASES WOULD THE ENFORCEMENT OF PRIOR ORDERS BE
SIMPLIFIED AND EXPEDITED.    IN VIEW OF ALL OF THESE CONSIDERATIONS WE
CANNOT SAY THAT THE AUTHOR OF THE FINALITY ACT AND ITS SPONSORS - ALL
STALWART CHAMPIONS OF EFFECTIVE ANTITRUST ENFORCEMENT - WOULD HAVE
INTENDED TO STRIP THE COMMISSION OF ALL OF ITS ENFORCEMENT WEAPONS WITH
REFERENCE TO SOME 400 CONCERNS ALREADY ADJUDGED TO BE CLAYTON ACT
VIOLATORS.  NOR COULD WE ASCRIBE TO A CONGRESS THAT HAS SO CLEARLY
EXPRESSED ITS WILL ANY SUCH RESULT.  WE CAN ONLY SAY THAT AS BETWEEN
CHOICES CONGRESS REJECTED ONLY ONE, NAMELY, THAT OF THE WHEELER-LEA
ACT'S 60-DAY REVIEW PROVISION.  CERTAINLY IT INTENDED THAT THE OLD
PROCEDURES WOULD APPLY TO PROCEEDINGS ON PETITION FOR REVIEW OR
APPLICATION FOR ENFORCEMENT.  THERE IS NO EVIDENCE THAT IT INTENDED TO
PUT THE PRE-1959 ORDERS INTO THE DISCARD.  WE REMAIN MORE FAITHFUL TO
THE ACT, WE THINK, WHEN WE FIND THAT THEY TOO ARE ENFORCEABLE UNDER THE
OLD PROCEDURES.  REVERSED AND REMANDED. 

FN1  SEE FEDERAL TRADE COMM'N V. PACIFIC-GAMBLE-ROBINSON CO., NO.
18260 (C.A. 9TH CIR. 1962); FEDERAL TRADE COMM'N V. BENRUS WATCH CO.,
NO. 27752 (C.A.2D CIR. 1962), AND THE INSTANT CASE. 

FN2  THE PENALTIES WERE RAISED TO $5,000 FOR EACH DAY IN WHICH A
VIOLATION CONTINUED. 

MR. JUSTICE HARLAN, CONCURRING. 

WHILE I CONFESS TO GREAT DIFFICULTY IN DRIVING THROUGH THE STATUTE TO
THE COURT'S CONCLUSION, I AM CONTENT TO ACQUIESCE IN MY BROTHER CLARK'S
OPINION WITH THE ADDED HELP OF THE SECOND CIRCUIT'S OPINION IN F.T.C.
V. STANDARD MOTOR PRODUCTS, INC., 371 F.2D 613. 
..END :









FEDERAL POWER COMMISSION V. UNITED GAS PIPE LINE CO. 386 U.S. 237 


NO. 127.  ARGUED JANUARY 11, 1967 - DECIDED MARCH 13, 1967* - 357 F.2D
230, REVERSED AND REMANDED.   *TOGETHER WITH NO. 128, MEMPHIS LIGHT,
GAS & WATER DIVISION V. UNITED GAS PIPE LINE CO. ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 


RESPONDENT UNITED GAS PIPE LINE CO. (UNITED) WAS A MEMBER OF AN
AFFILIATED GROUP OF COMPANIES WHICH FILED CONSOLIDATED FEDERAL INCOME
TAX RETURNS.  TWO OF THE COMPANIES HAD NET LOSSES.  THUS THE TOTAL TAX
ON A CONSOLIDATED BASIS WAS LESS THAN WHAT THE TOTAL TAX WOULD HAVE
BEEN HAD SEPARATE RETURNS BEEN FILED.  THE FEDERAL POWER COMMISSION
(FPC) DECIDED THAT, IN DETERMINING THE PROPER TAX ALLOWANCE TO BE
INCLUDED IN UNITED'S COST OF SERVICE FOR PURPOSES OF ESTABLISHING A
RATE BASE, THERE SHOULD BE AN ALLOCATION OF THE ACTUAL CONSOLIDATED
TAXES PAID.  THE FPC FORMULA (1) APPLIES THE LOSSES OF UNREGULATED
COMPANIES FIRST TO THE GAINS OF OTHER UNREGULATED COMPANIES, (2)
APPLIES ANY REMAINING LOSSES TO REDUCE THE TAXES OF THE REGULATED
COMPANIES, AND (3) ALLOCATES THE CONSOLIDATED TAX AMONG THE REGULATED
COMPANIES IN PROPORTION TO THEIR TAXABLE INCOME.  THE COURT OF APPEALS
SET ASIDE THE FPC ORDER HOLDING THAT THE FPC EXCEEDED ITS JURISDICTION
AND THAT UNITED WAS ENTITLED TO INCLUDE AS A COST OF SERVICE THE FULL
AMOUNT OF TAXES IT WOULD OWE IF IT FILED A SEPARATE RETURN.  HELD: 

1.  THE JURISDICTION OF THE FPC INCLUDES THE DETERMINATION OF COST OF
SERVICE FOR RATEMAKING, AND IT HAS THE POWER AND THE DUTY TO LIMIT COST
OF SERVICE TO REAL EXPENSES.  PP. 243-245. 

2.  THE FPC FORMULA, WHICH ALLOCATES TAX LIABILITY AMONG THE GROUP
MEMBERS WHICH ARE REGULATED, REGARDLESS OF WHETHER THEY ARE REGULATED
BY IT OR BY STATE OR LOCAL AUTHORITIES, IS NEITHER UNJUST NOR
UNREASONABLE.  PP. 245-246. 

3.  THERE IS NO FRUSTRATION OF THE TAX LAWS INHERENT IN THE FPC
ACTION.  PP. 246-247. 

FEDERAL POWER COMMISSION V. UNITED GAS PIPE LINE CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER THE FEDERAL POWER COMMISSION, IN THE
COURSE OF DETERMINING JUST AND REASONABLE RATES FOR UNITED GAS PIPE
LINE COMPANY (UNITED) UNDER SEC. 4(E) OF THE NATURAL GAS ACT, 52 STAT.
822, 15 U.S.C. SEC. 717CE), MADE A PROPER ALLOWANCE FOR FEDERAL INCOME
TAXES IN CALCULATING THE COMPANY'S COST OF SERVICE.  UNITED CLAIMED
THAT IN DETERMINING THE COST OF SERVICE ITS ALLOWANCE FOR FEDERAL
INCOME TAXES SHOULD BE AT THE FULL 52% RATE, OR $12,751,454, FOR THE
TEST YEAR.  THE COMMISSION DISAGREED BECAUSE UNITED WAS A MEMBER OF AN
AFFILIATED GROUP WHICH DURING THE FIVE-YEAR PERIOD OF 1957-1961 HAD
ELECTED TO FILE CONSOLIDATED RETURNS FOR FEDERAL INCOME TAX PURPOSES,
(FN1) A FACT WHICH IN THE COMMISSION'S VIEW REQUIRED A REDUCED TAX
ALLOWANCE IN THE COMPANY'S COST OF SERVICE.  HAD CONSOLIDATED RETURNS
NOT BEEN FILED DURING THE FIVE-YEAR PERIOD AND HAD EACH COMPANY IN THE
AFFILIATED GROUP INSTEAD FILED SEPARATE RETURNS, THE TOTAL TAX FOR THE
GROUP WOULD HAVE BEEN SEVERAL MILLION DOLLARS MORE THAN WAS PAID ON A
CONSOLIDATED BASIS.  THIS WAS SO BECAUSE ON A CONSOLIDATED BASIS
CONSOLIDATED LOSSES SERVE TO REDUCE CONSOLIDATED INCOME AND BECAUSE TWO
MEMBERS OF THE GROUP, UNION AND OVERSEAS, HAD NET LOSSES OVER THE FIVE
YEAR PERIOD, THEREBY REDUCING TAXES BY $2,092,038 OVER THOSE YEARS. 

TO DETERMINE WHAT THE COMMISSION CONSIDERED THE PROPER TAX ALLOWANCE
FOR UNITED'S RATE BASE, IT ALLOCATED THE ACTUAL CONSOLIDATED TAXES PAID
DURING THE FIVE-YEAR PERIOD AMONG THE MEMBERS OF THE GROUP IN
ACCORDANCE WITH A FORMULA IT HAD DEVELOPED IN CITIES SERVICE GAS CO.,
30 F.P.C. 158, THE ORDER IN WHICH WAS SET ASIDE AFTER ISSUANCE OF THE
ORDER IN THE INSTANT CASE, 337 F.2D 97.  AS SO ALLOCATED, UNITED'S
ANNUAL SHARE OF THE CONSOLIDATED TAX WAS 50.04% OF ITS TAXABLE INCOME. 
USING THIS RATE, THE COMMISSION ALLOWED UNITED $9,940,892 FOR FEDERAL
INCOME TAXES INSTEAD OF THE $12,751,454 CLAIMED BY UNITED.  31 F.P.C.
1180, 1191. 

THE COURT OF APPEALS, RELYING ON THE DECISION OF THE COURT OF APPEALS
FOR THE TENTH CIRCUIT IN CITIES SERVICE GAS CO. V. FPC, 337 F.2D 97,
HELD "THE TAX ALLOCATION AS MADE BY THE COMMISSION'S ORDER WAS CONTRARY
TO THE REQUIREMENTS WHICH CONGRESS HAD IMPOSED," 357 F.2D 230, 231, AND
HENCE VACATED AND SET ASIDE THE ORDER.  WE REVERSE AND REMAND TO THE
COURT OF APPEALS FOR FURTHER PROCEEDINGS. 

            I. 

IN THE CITIES SERVICE CASE THE AFFILIATED GROUP FILING THE
CONSOLIDATED RETURN WAS COMPOSED OF BOTH REGULATED AND UNREGULATED
COMPANIES.  SOME OF THE UNREGULATED COMPANIES HAD TAXABLE INCOME,
OTHERS HAD EVEN LARGER LOSSES, AND, THEREFORE, AS A GROUP THE
UNREGULATED COMPANIES SHOWED A NET LOSS OVER THE REPRESENTATIVE YEARS
USED BY THE COMMISSION TO FORECAST THE FUTURE FEDERAL INCOME TAX
ELEMENT OF COST OF SERVICE.  THE REGULATED COMPANIES AS A GROUP, ON THE
OTHER HAND, HAD TAXABLE INCOME IN THE SAME PERIOD.  ON AN
UNCONSOLIDATED BASIS THE INDIVIDUAL MEMBERS OF THE AFFILIATED GROUP
WOULD HAVE PAID A CONSIDERABLY LARGER TOTAL TAX THAN WAS ACTUALLY PAID
ON THE CONSOLIDATED BASIS.  THE GAS COMPANY WHOSE TAX ALLOWANCE FOR
RATE PURPOSES WAS BEING DETERMINED CLAIMED THAT IT WAS ENTITLED TO THE
FULL 52% OF ITS OWN TAXABLE INCOME.  ITS POSITION WAS THAT THE
COMMISSION HAD NO POWER AT ALL TO APPLY ANY OF THE LOSSES OF
UNREGULATED COMPANIES TO REDUCE ITS TAX ALLOWANCE AND HENCE ITS RATES. 
THE TAX ALLOWANCE WAS THUS TO BE FIGURED AT 52% WITHOUT REGARD TO THE
TAXES ACTUALLY PAID BY THE AFFILIATED GROUP ON A CONSOLIDATED BASIS,
SEEMINGLY EVEN IF THE GROUP PAID NO TAX AT ALL. 

FOR THE COMMISSION, HOWEVER, THE ONLY REAL COST TO THE REGULATED
COMPANY WAS RELATED TO THE CONSOLIDATED TAX ACTUALLY PAID AND INCURRED
IN CONNECTION WITH THE OTHER COMPANIES IN THE GROUP.  IN THE
COMMISSION'S VIEW, IT WAS UNACCEPTABLE TO DETERMINE THE COST OF SERVICE
ON A HYPOTHETICAL FIGURE - TO FIX JURISDICTIONAL RATES "ON THE BASIS OF
CONVERTING A HYPOTHETICAL TAX PAYMENT INTO A PRUDENT OPERATING
EXPENSE."  30 F.P.C., AT 162.  IT REFUSED TO ACCEPT THE ARGUMENT THAT
"GAS COMPANY RATEPAYERS SHOULD MAKE CITIES SERVICE STOCKHOLDERS WHOLE
FOR THE TAX LOSSES OF NONREGULATED ENTERPRISES EVEN THOUGH THIS MEANS
AN ALLOWANCE FOR TAXES OVER AND BEYOND THAT WHICH THE CONSOLIDATED
SYSTEM AS A WHOLE ACTUALLY PAID."  IBID.  THE COMMISSION'S FUNCTION, IT
SAID, WAS TO FIX JUST AND REASONABLE RATES, NOT TO INSURE THAT OTHER
AFFILIATES WOULD BE MADE WHOLE FOR THEIR TAX LOSSES OUT OF INCOME FROM
REGULATED ENTERPRISES.  THUS THE TASK WAS "TO DETERMINE THE PROPORTION
OF THE CONSOLIDATED TAX WHICH IS REASONABLY ATTRIBUTABLE TO THE GAS
COMPANY VIS-A-VIS THE OTHER CITIES SERVICE AFFILIATES."  IBID. 

TO MAKE THIS DETERMINATION, THE COMMISSION DEVISED A FORMULA WHICH IN
EFFECT APPLIED THE LOSSES OF UNREGULATED COMPANIES FIRST TO THE GAINS
OF OTHER UNREGULATED COMPANIES.  (FN2)  IF A NET TAXABLE INCOME
REMAINED IN THE UNREGULATED GROUP, THE REGULATED COMPANIES WOULD NOT
SHARE IN THE SAVINGS FROM THE CONSOLIDATED RETURN AND WOULD BE DEEMED
TO HAVE PAID A TAX AT THE FULL 52% RATE.  BUT IF LOSSES OF THE
UNREGULATED COMPANIES EXCEEDED THEIR NET INCOME AND HENCE REDUCED THE
TAXES OF THE REGULATED GROUP BELOW WHAT THEY WOULD HAVE PAID HAD THEY
FILED SEPARATE RETURNS, THE CONSOLIDATED TAX PAID WOULD BE ALLOCATED
AMONG THE REGULATED COMPANIES IN PROPORTION TO THEIR TAXABLE INCOMES. 
AS APPLIED TO THE FACTS IN THE CITIES SERVICE CASE, THE FORMULA
RESULTED IN A TAX ALLOWANCE OF $5,866,847 RATHER THAN THE $7,055,981
CLAIMED BY THE CITIES SERVICE GAS COMPANY. 

THE COURT OF APPEALS SET ASIDE THE COMMISSION'S ORDER.  IN ITS VIEW,
THE ADDITION OF THE GAS COMPANY'S INCOME TO THE CONSOLIDATED RETURN
COST THE AFFILIATED GROUP EXACTLY 52% OF THE TAXABLE INCOME OF THE GAS
COMPANY, EITHER IN TAXES PAID OR IN A REDUCTION OF LOSS CARRY-FORWARDS
OR CARRYBACKS.  THE COMMISSION'S FORMULA AS APPLIED WAS THEREFORE HELD
TO APPROPRIATE LOSSES OF UNREGULATED COMPANIES AND TO EXCEED THE
COMMISSION'S "JURISDICTIONAL LIMITS WHICH REQUIRE AN EFFECTIVE
SEPARATION OF REGULATED AND NONREGULATED ACTIVITIES FOR THE
DETERMINATION OF THE INGREDIENTS OF THE RATE BASE  ...  MEANING A
SEPARATION OF PROFITS AND LOSSES BETWEEN REGULATED AND NONREGULATED
BUSINESSES IN DETERMINING THE TAX ALLOWANCE INCLUDIBLE IN THE COST OF
SERVICE OF THE REGULATED COMPANY."  337 F.2D 97, 101.  HENCE THE COURT,
RELYING ON COLORADO INTERSTATE GAS CO. V. FPC, 324 U.S. 581, THE
PANHANDLE EASTERN PIPE LINE CO. V. FPC, 324 U.S. 635, SET ASIDE THE
COMMISSION'S ORDER. 

                           II. 

IN OUR VIEW WHAT THE COMMISSION DID HERE DID NOT EXCEED THE POWERS
GRANTED TO IT BY CONGRESS.  ONE OF ITS STATUTORY DUTIES IS TO DETERMINE
JUST AND REASONABLE RATES WHICH WILL BE SUFFICIENT TO PERMIT THE
COMPANY TO RECOVER ITS COSTS OF SERVICE AND A REASONABLE RETURN ON ITS
INVESTMENT.  COST OF SERVICE IS THEREFORE A MAJOR FOCUS OF INQUIRY. 
NORMALLY INCLUDED AS A COST OF SERVICE IS A PROPER ALLOWANCE FOR TAXES,
INCLUDING FEDERAL INCOME TAXES.  THE DETERMINATION OF THIS ALLOWANCE,
AS A GENERAL PROPOSITION, IS OBVIOUSLY WITHIN THE JURISDICTION OF THE
COMMISSION.  RATEMAKING IS, OF COURSE, SUBJECT TO THE RULE THAT THE
INCOME AND EXPENSE OF UNREGULATED AND REGULATED ACTIVITIES SHOULD BE
SEGREGATED.  BUT THERE IS NO SUGGESTION IN THESE CASES THAT IN ARRIVING
AT THE NET TAXABLE INCOME OF UNITED THE COMMISSION VIOLATED THIS RULE. 
NOR DID IT IN OUR VIEW IN DETERMINING THE TAX ALLOWANCE.  UNITED HAD
NOT FILED ITS OWN SEPARATE TAX RETURN.  INSTEAD IT HAD JOINED WITH
OTHERS IN THE FILING OF A CONSOLIDATED RETURN WHICH RESULTED IN THE
AFFILIATED GROUP'S PAYING A LOWER TOTAL TAX THAN WOULD HAVE BEEN DUE
HAD THE AFFILIATES FILED ON A SEPARATE-RETURN BASIS.  THE QUESTION FOR
THE COMMISSION WAS WHAT PORTION OF THE SINGLE CONSOLIDATED TAX
LIABILITY BELONGED TO UNITED.  OTHER MEMBERS OF THE GROUP SHOULD NOT BE
REQUIRED TO PAY ANY PART OF UNITED'S TAX, BUT NEITHER SHOULD UNITED PAY
THE TAX OF OTHERS.  A PROPER ALLOCATION HAD TO BE MADE BY THE
COMMISSION.  RESPONDENTS INSIST THAT IN MAKING THE ALLOCATION THE
COMMISSION WOULD VIOLATE THE STATUTE UNLESS IN EVERY CONCEIVABLE
CIRCUMSTANCE, INCLUDING THIS ONE, UNITED IS ALLOWED AN AMOUNT FOR TAXES
EQUAL TO WHAT IT WOULD HAVE PAID HAD IT FILED A SEPARATE RETURN.  IN
THEIR VIEW UNITED SHOULD NEVER SHARE IN THE TAX SAVINGS INHERENT IN A
CONSOLIDATED RETURN, EVEN IF ON A CONSOLIDATED BASIS SYSTEM LOSSES
EXCEED SYSTEM GAINS AND NEITHER THE AFFILIATED GROUP NOR ANY MEMBER IN
IT HAS ANY TAX LIABILITY.  THIS IS AN UNTENABLE POSITION AND WE REJECT
IT.  RATES FIXED ON THIS BASIS WOULD GIVE THE PIPELINE COMPANY AND ITS
STOCKHOLDERS NOT ONLY THE FAIR RETURN TO WHICH THEY ARE ENTITLED BUT
ALSO THE FULL AMOUNT OF AN EXPENSE NEVER IN FACT INCURRED.  IN SUCH
CIRCUMSTANCES, THE COMMISSION COULD PROPERLY DISALLOW THE HYPOTHETICAL
TAX EXPENSE AND HOLD THAT RATES BASED ON SUCH AN UNREAL COST OF SERVICE
WOULD NOT BE JUST AND REASONABLE. 

IT IS TRUE THAT THE AVOIDANCE OF TAX AND THE REDUCTION OF THE TAX
ALLOWANCE ARE ACCOMPLISHED ONLY BY APPLYING LOSSES OF UNREGULATED
COMPANIES TO THE INCOME OF THE REGULATED ENTITY.  BUT THE COMMISSION IS
NOT RESPONSIBLE FOR THE USE OF CONSOLIDATED RETURNS.  IT IS THE TAX LAW
WHICH PERMITS AN ELECTION BY AN APPROPRIATE GROUP TO FILE ON A
CONSOLIDATED BASIS.  THE MEMBERS OF A GROUP, AS IN THESE CASES,
THEMSELVES CHOSE NOT TO FILE SEPARATE RETURNS AND HENCE, FOR TAX
PURPOSES, TO MINGLE PROFITS AND LOSSES OF BOTH REGULATED AND
UNREGULATED CONCERNS, APPARENTLY DEEMING IT MORE DESIRABLE TO ATTEMPT
TO TURN THE LOSSES OF SOME COMPANIES INTO IMMEDIATE CASH THROUGH TAX
SAVINGS RATHER THAN TO COUNT ON THE LOSS COMPANIES THEMSELVES HAVING
FUTURE PROFITS AGAINST WHICH PRIOR LOSSES COULD BE APPLIED.  SUCH A
PRIVATE DECISION MADE BY THE AFFILIATES, INCLUDING THE REGULATED
MEMBER, HAS THE PRACTICAL AND INTENDED CONSEQUENCE OF REDUCING THE
GROUP'S FEDERAL INCOME TAXES, PERHAPS TO ZERO, AS WAS TRUE OF ONE OF
THE YEARS INVOLVED IN THE CITIES SERVICE CASE.  BUT WHEN THE OUT-OF
POCKET TAX COST OF THE REGULATED AFFILIATE IS REDUCED, THERE IS AN
IMMEDIATE CONFRONTATION WITH THE RATEMAKING PRINCIPLE THAT LIMITS COST
OF SERVICE TO EXPENSES ACTUALLY INCURRED.  NOTHING IN COLORADO
INTERSTATE OR PANHANDLE FORBIDS THE COMMISSION TO RECOGNIZE THE ACTUAL
TAX SAVING IMPACT OF A PRIVATE ELECTION TO FILE CONSOLIDATED RETURNS. 
ON THE CONTRARY, BOTH CASES SUPPORT THE POWER AND THE DUTY OF THE
COMMISSION TO LIMIT COST OF SERVICE TO REAL EXPENSES.  (FN3) 

WE THINK THAT IN THE PROPER CIRCUMSTANCES THE COMMISSION HAS THE
POWER TO REDUCE COST OF SERVICE, AND HENCE RATES, BASED ON THE
APPLICATION OF NONJURISDICTIONAL LOSSES TO JURISDICTIONAL INCOME. 
HENCE, THE QUESTION BECOMES ONE OF WHEN AND TO WHAT EXTENT THE TAX
SAVINGS FLOWING FROM THE FILING OF A CONSOLIDATED RETURN ARE TO BE
SHARED BY THE REGULATED COMPANY.  OR, TO PUT IT IN THE COMMISSION'S
WORDS THE ISSUE IS ONE OF DETERMINING "THE PROPORTION OF THE
CONSOLIDATED TAX WHICH IS REASONABLY ATTRIBUTABLE TO THE GAS COMPANY
VIS-A-VIS ITS OTHER  ...  AFFILIATES."  30 F.P.C., AT 162. 

VIEWING THESE CASES IN THIS LIGHT, WE CANNOT SAY THAT THE METHOD THE
COMMISSION CHOSE TO ALLOCATE THE TAX LIABILITY AMONG THE GROUP MEMBERS
WAS ERRONEOUS OR CONTRARY TO ITS STATUTORY AUTHORITY.  UNDER ITS
FORMULA, THE NET LOSSES AND NET INCOME OF UNREGULATED COMPANIES ARE
FIRST SET OFF ONE AGAINST THE OTHER, AND THE TAX SAVINGS MADE POSSIBLE
BY LOSSES OF UNREGULATED ENTERPRISES ARE THUS FIRST ALLOCATED TO THE
UNREGULATED COMPANIES.  ONLY IF "UNREGULATED" LOSSES EXCEED
"UNREGULATED" INCOME IS THE REGULATED COMPANY DEEMED TO HAVE ENJOYED A
REDUCTION IN ITS TAXES AS A RESULT OF THE CONSOLIDATED RETURN.  IF
THERE IS MORE THAN ONE REGULATED COMPANY IN THE GROUP, THEY WILL SHARE
THE TAX LIABILITY OR TAX SAVING IN PROPORTION TO THEIR TAXABLE INCOME. 

IT IS TRUE THAT THE COMMISSION INCLUDES IN THE REGULATED GROUP
COMPANIES WHICH ARE REGULATED NOT BY IT BUT BY STATE OR LOCAL
AUTHORITIES AND THAT UNDER THE COMMISSION'S FORMULA ENTERPRISES NOT
SUBJECT TO ITS JURISDICTION MAY BE REQUIRED TO SHARE THE TAX SAVING
WITH THE FEDERALLY REGULATED CONCERN.  BUT WE KNOW OF NOTHING IN THE
DECISIONS OR THE STATUTES GOVERNING THE RATEMAKING ACTIVITIES OF THE
COMMISSION WHICH DICTATES PRIORITY FOR THE STATE-REGULATED COMPANY OR
WHICH PROVIDES THAT THE JURISDICTIONAL COMPANY MAY SHARE IN THE TAX
SAVING ONLY IF THE SAVING EXCEEDS THE SEPARATE-RETURN TAX LIABILITY OF
THE STATE-REGULATED COMPANY.  ONE COULD AS WELL ARGUE THAT FOR
RATEMAKING PURPOSES THE COMPANY SUBJECT TO FEDERAL REGULATION SHOULD
HAVE THE FIRST BENEFIT OF THE TAX SAVING.  THE COMMISSION'S FORMULA, OF
COURSE, PREFERS NEITHER CONCERN BUT ALLOCATES THE TAX LIABILITY
EQUITABLY BETWEEN EACH REGULATED MEMBER, WITHOUT REGARD TO THE SOURCE
OF THE REGULATION.  (FN1)  "WHEN CONGRESS, AS HERE, FAILS TO PROVIDE A
FORMULA FOR THE COMMISSION TO FOLLOW, COURTS ARE NOT WARRANTED IN
REJECTING THE ONE WHICH THE COMMISSION EMPLOYS UNLESS IT PLAINLY
CONTRAVENES THE STATUTORY SCHEME OF REGULATION."  COLORADO INTERSTATE
GAS CO. V. FPC, 324 U.S. 581, 589.  "IF THE TOTAL EFFECT OF THE RATE
ORDER CANNOT BE SAID TO BE UNJUST AND UNREASONABLE, JUDICIAL INQUIRY
UNDER THE ACT IS AT AN END.  THE FACT THAT THE METHOD EMPLOYED TO REACH
THAT RESULT MAY CONTAIN INFIRMITIES IS NOT THEN IMPORTANT."  FPC V.
HOPE NATURAL GAS CO., 320 U.S. 591, 602.    THERE IS NO FRUSTRATION OF
THE TAX LAWS INHERENT IN THE COMMISSION'S ACTION.  THE AFFILIATED GROUP
MAY CONTINUE TO FILE CONSOLIDATED RETURNS AND THROUGH THIS MECHANISM
SET OFF SYSTEM LOSSES AGAINST SYSTEM INCOME, INCLUDING UNITED'S FAIR
RETURN INCOME.  THE TAX LAW PERMITS THIS, BUT IT DOES NOT SEEK TO
CONTROL THE AMOUNT OF INCOME WHICH ANY AFFILIATE WILL HAVE.  NOR DOES
IT ATTEMPT TO SET UNITED'S RATES.  THIS IS THE FUNCTION OF THE
COMMISSION, A FUNCTION PERFORMED HERE BY REJECTING THAT PART OF THE
CLAIMED TAX EXPENSE WHICH WAS NO EXPENSE AT ALL, BY REDUCING COST OF
SERVICE AND THEREFORE RATES, AND BY ALLOWING UNITED ONLY A FAIR RETURN
ON ITS INVESTMENT. 

NOR DID THE COMMISSION "APPROPRIATE" OR EXTINGUISH THE LOSSES OF ANY
MEMBER OF THE AFFILIATED GROUP, REGULATED OR UNREGULATED.  THOSE LOSSES
MAY STILL BE APPLIED TO SYSTEM GAINS AND THEREBY BE TURNED INTO INSTANT
CASH.  UNITED MAY, OF COURSE, HAVE LESS INCOME THAN IT DID.  IF SO,
THIS WILL CORRESPONDINGLY REDUCE THE OPPORTUNITY OF THE AFFILIATED
GROUP TO USE THE LOSSES OF UNREGULATED COMPANIES TO APPROPRIATE
UNITED'S INCOME FOR THE BENEFIT OF NONJURISDICTIONAL ACTIVITIES BECAUSE
UNITED'S INCOME WILL NO LONGER OFFSET THE SAME AMOUNT OF LOSSES WHICH
IT ONCE DID.  BUT THE LOSSES OF UNREGULATED COMPANIES ARE IN NO WAY
DESTROYED.  THEY REMAIN WITH THE SYSTEM, READILY AVAILABLE TO REDUCE
THE TAXES OF THE PROFITABLE AFFILIATES TO THE MAXIMUM EXTENT ALLOWED BY
THE TAX LAW. 

ANOTHER MATTER DESERVES SOME COMMENT.  IT IS SAID HERE THAT THE
COMMISSION, IN APPLYING ITS TAX ALLOWANCE FORMULA, ERRONEOUSLY FAILED
TO RECOGNIZE AND TO TAKE ACCOUNT OF THE FACT THAT UNITED HAS BOTH
JURISDICTIONAL AND NONJURISDICTIONAL ACTIVITIES AND INCOME.  ALTHOUGH
THIS IS A MATTER WHICH MIGHT AFFECT THE RESULTS ACHIEVED IN APPLICATION
OF THE COMMISSION'S FORMULA, IT IS ONE TO WHICH THE COURT OF APPEALS
HAS NOT ADDRESSED ITSELF, AND WE THINK IT APPROPRIATE FOR THE ISSUE TO
BE RAISED THERE IF THE PARTIES ARE SO INCLINED. 

FOR THE REASONS STATED HEREIN, THE JUDGMENT OF THE COURT OF APPEALS
IS REVERSED AND THE CASES REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE ELECTION WAS PURSUANT TO THE PRIVILEGE GRANTED IN SEC. 1501
OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. SEC. 1501.  THE OTHER
MEMBERS OF THE AFFILIATED GROUP ARE UNITED GAS CORPORATION, WHICH
WHOLLY OWNS UNITED AND WHICH IS A GAS DISTRIBUTION COMPANY SUBJECT TO
STATE AND LOCAL REGULATION, AND TWO OTHER WHOLLY OWNED SUBSIDIARIES OF
UNITED GAS CORPORATION - UNION PRODUCING COMPANY (UNION), A DOMESTIC
OIL AND GAS PRODUCER WHOSE INTERSTATE SALES OF GAS ARE SUBJECT TO THE
JURISDICTION OF THE FEDERAL POWER COMMISSION, AND UNITED OVERSEAS
PRODUCTION COMPANY (OVERSEAS) WHICH ENGAGED IN OIL EXPLORATION IN
FOREIGN COUNTRIES. 

FN2  "THE PROPER METHOD TO BE APPLIED IN COMPUTING THE FEDERAL INCOME
TAXES TO BE INCLUDED IN THE COST OF SERVICE OF A REGULATED COMPANY
WHERE THAT COMPANY HAS JOINED IN A CONSOLIDATED TAX RETURN WITH
AFFILIATES IS (1) SEPARATE THE COMPANIES INTO REGULATED AND UNREGULATED
GROUPS, (2) DETERMINE THE NET AGGREGATE TAXABLE INCOME OF EACH GROUP,
AND (3) APPORTION THE NET TOTAL CONSOLIDATED TAX LIABILITY OVER A
REPRESENTATIVE PERIOD OF TIME BETWEEN THE TWO GROUPS, AND AMONG THE
COMPANIES IN THE REGULATED GROUP, ON THE BASIS OF THEIR RESPECTIVE
TAXABLE INCOMES; PROVIDED THAT THE ALLOWANCE SO COMPUTED FOR THE
REGULATED COMPANY SHALL NOT EXCEED WHAT ITS TAX LIABILITY WOULD BE FOR
RATE MAKING PURPOSES, IF COMPUTED ON A SEPARATE RETURN BASIS."  30
F.P.C. 158, 164. 

AS THE COMMISSION NOTED, ID., AT 162, IT COULD DRAW LITTLE FROM THE
EXPERIENCE OF STATE AND LOCAL REGULATORY BODIES DEALING WITH THE
QUESTION WHETHER THE LOSSES OF AFFILIATES SHOULD BE TAKEN INTO ACCOUNT
IN DETERMINING THE TAX ALLOWANCE FOR REGULATED ENTERPRISES SINCE THE
STATE AND LOCAL SOLUTIONS HAD NOT BEEN CONSISTENT.  IT DOES NOT APPEAR
THAT THE COMMISSION DREW ON ITS OWN EXPERIENCE, ALTHOUGH WITH A SINGLE
EXCEPTION THE COMMISSION SEEMS TO HAVE ACCOUNTED FOR CONSOLIDATED TAX
SAVINGS IN PAST RATEMAKING PROCEEDINGS.  SEE PENN-YORK NATURAL GAS
CORP., 5 F.P.C. 33, 39 (1946); HOPE NATURAL GAS CO., 10 F.P.C. 583,
612, AFF'D, 10 F.P.C. 625 (1951); ATLANTIC SEABOARD CORP., 11 F.P.C.
486, 515, AFF'D, 11 F.P.C. 43, REMANDED ON OTHER GROUNDS, 200 F.2D 108
(1952); UNITED FUEL GAS CO., 12 F.P.C. 251 (1953); HOPE NATURAL GAS
CO., 12 F.P.C. 342, 347 (1953); HOME GAS CO., 13 F.P.C. 241, 246
(1954); UNITED FUEL GAS CO., 23 F.P.C. 127, 134 (1960).  BUT SEE OLIN
GAS TRANSMISSION CORP., 17 F.P.C. 685 (1956). 

FN3  SEE COLORADO INTERSTATE GAS CO. V. FPC, 324 U.S. 581, 604-605;
PANHANDLE EASTERN PIPE LINE CO. V. FPC, 324 U.S. 635, 648-649; EL PASO
NATURAL GAS CO. V. FPC, 281 F.2D 567, 573, CERT. DENIED SUB NOM.
CALIFORNIA V. FPC, 366 U.S. 912; ALABAMA-TENNESSEE NATURAL GAS CO. V.
FPC, 359 F.2D 318, 331, CERT. DENIED, 385 U.S. 847. 

FN4  THAT SOME SHARING OF THE TAX SAVINGS WITH NONFEDERALLY REGULATED
COMPANIES WAS IN ORDER SEEMS TO HAVE BEEN RECOGNIZED BY THE MEMBERS OF
THE AFFILIATED GROUP.  UNDER THE INTERNAL ALLOCATION FORMULA EMPLOYED
BY THE GROUP, THE TAX LIABILITY ASSIGNED TO UNITED REPRESENTED AN
EFFECTIVE TAX RATE OF 48.8%. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE STEWART
JOIN, DISSENTING. 

MY ANALYSIS OF THE ELUSIVE ISSUE INVOLVED IN THESE CASES LEADS ME TO
DIFFERENT CONCLUSIONS FROM THOSE REACHED BY THE COURT AND TO AGREEMENT
WITH THE RESULT REACHED BY THE COURT OF APPEALS ON THE FACTS OF THESE
CASES. 

WE ARE PRESENTED HERE WITH THE PROBLEMS OF RESOLVING AN APPARENT
CONFLICT BETWEEN THE CONSOLIDATED TAX RETURN PROVISIONS OF THE INTERNAL
REVENUE CODE, (FN1) WHICH PERMIT AN AFFILIATED GROUP OF CORPORATIONS,
IN THIS INSTANCE HAVING SOME ACTIVITIES WITHIN AND SOME WITHOUT THE
FEDERAL POWER COMMISSION'S JURISDICTION, TO BE TREATED AS A "BUSINESS
ENTITY" FOR TAX PURPOSES, (FN2) AND THE NATURAL GAS ACT WHICH IMPOSES
ON THE COMMISSION THE DUTY OF OBSERVING "THE FUNDAMENTAL RATE MAKING
PRINCIPLE THAT  ...  REQUIRES A SEPARATION BETWEEN REGULATED AND
UNREGULATED COSTS AND REVENUES."  CITIES SERVICE GAS CO., 30 F.P.C.
158, 162.  THE COURT HOLDS THAT THE FPC MAY RESOLVE THE APPARENT
DILEMMA BY WORKING ONLY WITH "THE SINGLE CONSOLIDATED TAX LIABILITY"
AND DETERMINING BY ALLOCATION WHAT PORTION SHOULD BE ATTRIBUTED TO
UNITED FOR RATEMAKING PURPOSES.  BY FILING A CONSOLIDATED RETURN THE
MEMBERS OF THE AFFILIATED GROUP ARE SAID "TO MINGLE PROFITS AND LOSSES
OF BOTH REGULATED AND UNREGULATED CONCERNS" AND THUS CREATE THE
NECESSITY FOR ALLOCATION.  THE ONLY SERIOUS PROBLEM THE COURT SEES IS
THE RESOLUTION OF THE QUESTION "WHEN AND TO WHAT EXTENT THE TAX SAVINGS
FLOWING FROM THE FILING OF A CONSOLIDATED RETURN ARE TO BE SHARED BY
THE REGULATED COMPANY."  AND THE COURT ATTEMPTS TO SIDESTEP SHARP
ANALYSIS OF THAT PROBLEM BY RESORTING TO THE PRINCIPLE THAT, IN
RATEMAKING, THE END IN EFFECT JUSTIFIES THE MEANS.  (FN3) 

AS WILL BE DEVELOPED MORE FULLY BELOW, I THINK THAT THE COURT'S
RESOLUTION OF THE JURISDICTIONAL ISSUE, WHILE POSSESSING A CERTAIN
SURFACE PLAUSIBILITY, MISTAKES THE OPERATION OF THE TAX LAWS AND
PERMITS THE COMMISSION TO PLACE REGULATORY PRESSURE ON ENTITIES AND
BUSINESS DECISIONS WHOLLY OUTSIDE ITS JURISDICTION UNDER THE NATURAL
GAS ACT.  I THINK ALSO THAT THE COMMISSION'S FORMULA CANNOT BE UPHELD
EVEN UNDER THE COURT'S JURISDICTIONAL ANALYSIS.  THE FORMULA
INDEFENSIBLY UNDERCUTS THE POLICY OF THE TAX LAWS, AND THUS CANNOT BE
CONSIDERED A MEANS OF REACHING "JUST AND REASONABLE" RATES.  CF. EL
PASO NATURAL GAS CO. V. FPC, 281 F.2D 567. 

                                             I. 

THE COURT'S "SINGLE CONSOLIDATED TAX LIABILITY" APPROACH IGNORES THE
FACT THAT WHAT IS CONSOLIDATED IS CORPORATE TAXABLE INCOMES RATHER THAN
THE UNDERLYING REVENUES AND DEDUCTIONS.  THUS WHAT HAS HAPPENED IN THIS
CASE IS NOT THE IMPOSITION OF A SINGLE TAX LIABILITY ON THE ACTIVITIES,
AS A WHOLE, OF THE AFFILIATED CORPORATE GROUP, BUT THE REDUCTION OF THE
SUM OF SEPARATE 52% CORPORATE TAX LIABILITIES BY THE SETOFF OF TAX
LOSSES AGAINST TAXABLE INCOME.  CERTAINLY THERE CAN BE NO CONTENTION
THAT UNITED WOULD BE ENTITLED TO ANYTHING OTHER THAN A 52% OF TAXABLE
INCOME TAX EXPENSE FOR RATEMAKING PURPOSES ABSENT TAX LOSSES IN THE
CONSOLIDATED GROUP.  (FN4)  THE ONLY QUESTION THAT PROPERLY ARISES ON
THIS RECORD IS WHETHER THE COMMISSION COULD CONSIDER ANY SETOFF TO HAVE
BEEN MADE AGAINST UNITED'S TAX LIABILITY FOR RATEMAKING PURPOSES WHEN
NONJURISDICTIONAL ACTIVITIES COULD HAVE TAKEN FULL ADVANTAGE OF THE
SETOFFS BELONGING TO THE GROUP AND THE GROUP DESIRED TO ALLOCATE THEM
TO THOSE ACTIVITIES.  (FN5) 

THE "TAX LOSSES" BELONGING TO THE GROUP AROSE ALMOST EXCLUSIVELY FROM
THE EXCESS OF DEPLETION ALLOWANCES OVER REVENUES IN THE ACCOUNTS OF THE
NONJURISDICTIONAL ACTIVITIES OF UNION AND OVERSEAS.  SUCH ALLOWANCES
BELONGED TO UNION AND OVERSEAS AND THOSE CORPORATIONS WERE ENTITLED TO
THEIR EXCLUSIVE USE.  BY AGREEING TO THE CONSOLIDATED RETURN (FN6)
UNION AND OVERSEAS AGREED TO DELIVER TO THE GROUP, IN ANY TAXABLE YEAR,
WHATEVER DEDUCTIONS THEY THEMSELVES COULD NOT THEN UTILIZE IN THEIR OWN
RETURNS.  THE QUESTION HOW TO ALLOCATE THE BENEFIT OF THOSE DEDUCTIONS
AMONG THE MEMBERS OF THE GROUP WOULD SEEM TO BE ONE FOR THE GROUP
RATHER THAN THE COMMISSION WHEN, AS HERE, THEY DO NOT ARISE FROM
JURISDICTIONAL ACTIVITIES AND CAN BE USED BY GROUP MEMBERS TO OFFSET
OTHER NONJURISDICTIONAL GAINS.  THE COURTS HAVE ALLOWED GOOD-FAITH
BUSINESS DECISIONS TO CONTROL SUCH ALLOCATIONS FOR THE VITAL PURPOSE OF
DETERMINING WHICH CORPORATIONS SHALL PAY THE TAX.  SEE CASE V. NEW YORK
CENTRAL R. CO., 15 N.Y.2D 150, 204 N.E.2D 643.  AND THE TAX
COMMISSIONER WOULD PERMIT THE GROUP TO ALLOCATE FOR EARNINGS AND
PROFITS PURPOSES IN PRECISELY THE MANNER THE GROUP HAS CHOSE HERE. 
(FN7)  ALTHOUGH THESE DECISIONS CANNOT CONTROL FOR RATEMAKING PURPOSES,
THEY DO MAKE IT CLEAR THAT THE COMMISSION'S ASSERTION OF JURISDICTION
TO MAKE AN ALLOCATION AMOUNTS TO AN ORDER THAT CERTAIN
NONJURISDICTIONAL ASSETS BE DELIVERED UP TO JURISDICTIONAL USE SINCE
THERE IS NO OTHER COMPULSION FOR SUCH AN ALLOCATION.  THE COURT ASSERTS
THAT "ONE COULD AS WELL ARGUE THAT FOR RATEMAKING PURPOSES THE COMPANY
SUBJECT TO FEDERAL REGULATION SHOULD HAVE THE FIRST BENEFIT OF THE TAX
SAVING."  BUT NO AUTHORITY OR REASON IS GIVEN IN SUPPORT OF THIS
ASSERTION, AND, IN MY OPINION, NONE CAN BE FOUND.  THE COMMISSION HAS
NO AUTHORITY TO CONTROL THE DISPOSITION OF NONJURISDICTIONAL ASSETS OR
THE REVENUES OR LOSSES ARISING THEREFROM. 

A PARALLEL EXAMPLE WILL MAKE EVEN CLEARER THE JURISDICTIONAL
VIOLATION ARISING FROM THE COMMISSION'S ACTION HERE.  IF UNION OR
OVERSEAS HAD FOUND ITSELF WITH AN EXCESS QUANTITY OF STEEL PIPE USEFUL
TO ALL MEMBERS OF THE GROUP AND HAD TO NEGOTIATE ITS SALE AT A
DISCOUNT, ONE COULD HARDLY "AS WELL ARGUE THAT FOR RATEMAKING PURPOSES"
UNITED SHOULD BE CREDITED WITH THE DISCOUNT PURCHASE WHEN THE PIPE HAD
BEEN SOLD TO GAS CORPORATION AND UNITED HAD BEEN FORCED TO PURCHASE
PIPE ON THE MARKET.  (FN8)  AND IT COULD NOT BE ASSERTED THAT THE
COMMISSION WOULD HAVE AUTHORITY TO ORDER THE TRANSFER OF THE DISCOUNT
PIPE TO UNITED.  (FN9) 

THE FAR-REACHING NONJURISDICTIONAL IMPACT OF THE COMMISSION'S RULING
GIVES FURTHER EVIDENCE THAT ITS ACTION WAS ONE WHICH CONGRESS COULD NOT
HAVE CONTEMPLATED AND WOULD NOT HAVE CONDONED.  AS THE DISSENTING
COMMISSIONERS POINTED OUT IN THE CITIES SERVICE GAS CO. PROCEEDING, 30
F.P.C., AT 175, THE COMMISSION HAS MADE JURISDICTIONAL RATES TURN ON
THE CORPORATE FORM ASSUMED BY NONJURISDICTIONAL ACTIVITIES.  IF, FOR
EXAMPLE, THE GROUP HAD SEPARATELY INCORPORATED ITS NONJURISDICTIONAL
OPERATIONS, THEY WOULD HAVE SHOWN TAXABLE INCOME IN FILING THE
CONSOLIDATED RETURN AND NO RATEMAKING ALLOCATION WOULD BE FORTHCOMING. 
SIMILARLY, SINCE THE COMMISSION REGULATIONS THEMSELVES REQUIRE
SEPARATION OF JURISDICTIONAL AND NONJURISDICTIONAL OPERATIONS WITHIN A
SINGLE CORPORATION, ALL THE AFFILIATES COULD MERGE INTO UNITED AND
SINCE NONJURISDICTIONAL ACTIVITIES WOULD SHOW A NET TAXABLE INCOME,
UNITED WOULD RECEIVE A 52% TAX EXPENSE FOR RATEMAKING PURPOSES.  (FN10)
THE CONGRESSIONAL PURPOSE IN ALLOWING CONSOLIDATED RETURNS WAS TO
ELIMINATE EXACTLY THIS KIND OF DEPENDENCE ON CORPORATE FORM AND LEAVE
CORPORATIONS FREE TO CONTINUE BUSINESS IN WHATEVER CORPORATE FORM BEST
SUITED THEM.  SEE, E.G., S. REP. NO. 960, 70TH CONG., 1ST SESS., P.
14.  THE CONGRESSIONAL PURPOSE IN PASSING THE NATURAL GAS ACT WAS TO
PREVENT EXPLOITATION OF THE NATURAL GAS CONSUMER.  IT WAS NOT TO
PREVENT NATURAL GAS COMPANIES FROM FULLY DEVELOPING THEIR
NONJURISDICTIONAL OPPORTUNITIES, NOR TO CONTROL IN ANY WAY THE FORM OF
THOSE ACTIVITIES, NOR TO APPROPRIATE NONJURISDICTIONAL ASSETS FOR THE
BENEFIT OF CONSUMERS.  COLORADO INTERSTATE GAS CO. V. FPC, 324 U.S.
581, 593-594. 

THE COURT FOCUSES ITS ANALYSIS ON A CASE, NOT PRESENTED HERE, IN
WHICH THERE ARE NET NONJURISDICTIONAL LOSSES AND THE CONSOLIDATED TAX
LIABILITY IS THUS LESS THAN 52% OF THE TAXABLE INCOME OF THE
JURISDICTIONAL ACTIVITY.  IN SUCH A CASE IT IS CLEAR THAT
NONJURISDICTIONAL ASSETS ARE BEING USED FOR TAX PURPOSES BY THE
JURISDICTIONAL ACTIVITY AND IT WOULD BLINK REALITY NOT TO RECOGNIZE
THIS USE FOR RATEMAKING PURPOSES, JUST AS IT WOULD BE WHOLLY IMPROPER
NOT TO RECOGNIZE THE LOWER COST OF DISCOUNT PIPE WHEN A JURISDICTIONAL
ACTIVITY ACTUALLY PURCHASED IT FROM A NONJURISDICTIONAL AFFILIATE. 
WHEN THE GROUP'S ELECTION TO FILE CONSOLIDATED RETURNS, OR ITS
INTERCORPORATE ARRANGEMENTS, REQUIRE THAT NONJURISDICTIONAL DEDUCTIONS
BE UTILIZED TO SET OFF JURISDICTIONAL INCOME THEN, AND ONLY THEN, CAN
THERE, IN MY OPINION, BE ALLOCATION.  (FN11)  THAT, HOWEVER, IS NOT THE
SITUATION HERE WHERE NONJURISDICTIONAL INCOME WAS FULLY CAPABLE OF
ABSORBING ALL NONJURISDICTIONAL LOSSES. 
            II. 

IN A WELL-REASONED OPINION IN EL PASO NATURAL GAS CO. V. FPC, 281
F.2D 567, THE COURT HELD THAT THE COMMISSION PROPERLY TOOK ACCOUNT OF
DEPLETION ALLOWANCES ARISING FROM JURISDICTIONAL ACTIVITIES IN FIXING
RATES.  THE GAS COMPANY THERE HAD ARGUED THAT SINCE CONGRESS INTENDED
BY THE ALLOWANCE TO ENCOURAGE EXPLORATION ITS BENEFIT COULD NOT BE
PASSED ON TO THE RATEPAYERS.  THE COURT REJECTED THAT ARGUMENT BECAUSE
IT CONCLUDED THAT THE PROPER PLACE TO REFLECT THE CONGRESSIONAL POLICY
WAS IN THE ULTIMATE RATE OF RETURN ALLOWED THE COMPANY.  IT MADE
EXPLICIT, HOWEVER, THAT THE COMMISSION COULD NOT FAIL TO TAKE ACCOUNT
OF THE CONGRESSIONAL POLICY. 

THE COURT'S OPINION DEPARTS FROM THAT SOUND ANALYSIS BY SUSTAINING A
FORMULA WHICH ALLOCATES THE ENTIRE "TAX SAVING" TO THE "REGULATED"
CORPORATIONS AND THUS FAILS TO TAKE ACCOUNT OF THE CONGRESSIONAL DESIRE
TO BENEFIT THE LOSS CORPORATIONS BY ALLOWING THE PROFIT CORPORATIONS TO
RETAIN EARNINGS WHICH COULD BE PASSED ON TO THEM.  THE CONSOLIDATED
RETURN IS THE HORIZONTAL EQUIVALENT OF THE VERTICAL LOSS CARRY-FORWARD
AND CARRYBACK PROVISIONS OF THE INTERNAL REVENUE CODE.  IT ALLOWS THE
"BUSINESS UNIT" TO RECOUP FROM THE GOVERNMENT SOME OF THE LOSS WHICH
HAS BEEN SUSTAINED AND, IN THE WORDS OF MR. JUSTICE JACKSON, "IT IS
PROBABLE THAT THE INTENTION  ...  WAS TO PROVIDE SALVAGE FOR THE LOSER
...  ."  WESTERN PACIFIC RAILROAD CASE, 345 U.S. 247, 277 (DISSENTING
OPINION).  ANY RATE FORMULA WHICH DOES NOT PROVIDE A MEANS OF
ALLOCATING BENEFIT TO THE LOSS CORPORATION CANNOT THEN BE "JUST AND
REASONABLE."  AND IF THE GROUP AS A WHOLE DOES NOT BENEFIT FROM
CONSOLIDATION BECAUSE THE SETOFF ADVANTAGES OF LOSSES ARE ABSORBED BY
THE "REGULATED" CORPORATIONS AND PASSED ON TO THE RATEPAYERS, IT IS
MOST UNLIKELY THAT THE LOSS CORPORATIONS WILL ACHIEVE THE BENEFIT
CONGRESS INTENDED THEM TO HAVE.  (FN12) 

THE COURT RECOGNIZES THE ADVERSE EFFECT ON THE BENEFITS FLOWING TO
THE LOSS CORPORATIONS, BUT CONTENDS THERE IS NO FRUSTRATION OF THE TAX
LAWS BECAUSE THE LOSSES "REMAIN WITH THE SYSTEM, READILY AVAILABLE TO
REDUCE THE TAXES OF THE PROFITABLE AFFILIATES  ...  ."  BUT THIS
HYPOTHETICAL "AVAILABILITY" IS MEANINGLESS FOR THE "INSTANT CASH"
PRODUCED BY THE LOSSES IS PASSED ON TO THE RATEPAYERS RATHER THAN, AS
THE TAX LAWS INTEND, TO THE LOSS CORPORATIONS.  THE FACT THAT THE
GROUP'S TAX PAYMENT IS LOWER WILL NOT SATISFY THE INTENT BEHIND THE
REVENUE PROVISIONS WHICH WAS NOT TO REDUCE GOVERNMENT COLLECTIONS BUT
TO INCREASE RESOURCES AVAILABLE TO THE BUSINESS UNIT.  (FN13)

                                            III. 

TO SUMMARIZE, I THINK, FIRST, THAT NO ALLOCATION WHATEVER COULD BE
REQUIRED BY THE COMMISSION IN THESE CASES BECAUSE NONJURISDICTIONAL
INCOME WAS MORE THAN SUFFICIENT TO ABSORB ALL NONJURISDICTIONAL LOSSES
AND THERE WAS NO SHOWING THAT JURISDICTIONAL ACTIVITIES WOULD ACTUALLY
BENEFIT FROM NONJURISDICTIONAL LOSSES.  TO PERMIT THE FPC IN SUCH
CIRCUMSTANCES TO ALLOCATE WOULD IN EFFECT EXTEND THE COMMISSION'S
JURISDICTION TO AREAS NOT ENCOMPASSED WITHIN THE AUTHORITY GIVEN THE
COMMISSION BY THE NATURAL GAS ACT.  WHILE THE BASIC PURPOSE OF THE ACT
IS, OF COURSE, TO PROTECT RATEPAYERS, CONGRESS HAS NOT CARRIED THAT
PROTECTION SO FAR AS TO ALLOW THEM TO SHARE IN THE BENEFITS OF THE
NONJURISDICTIONAL ACTIVITIES OF A JURISDICTIONAL CORPORATION OR THOSE
OF ITS CORPORATE AFFILIATES - A RESULT WHICH TODAY'S DECISION PERMITS
THE COMMISSION TO ACHIEVE. 

SECOND, IN INSTANCES WHERE THE COMMISSION MAY ALLOCATE, IT SEEMS TO
ME THAT ANY ALLOCATION FORMULA THAT DOES NOT TAKE ACCOUNT OF THE
UNDERLYING POLICY OF THE TAX STATUTE WOULD "PLAINLY CONTRAVENE THE
STATUTORY SCHEME OF REGULATION."  COLORADO INTERSTATE GAS CO. V. FPC,
SUPRA, AT 589. 

THIRD, WHILE I THUS AGREE WITH THE COURT OF APPEALS THAT UNITED, ON
THIS RECORD, IS ENTITLED TO HAVE ITS RATES CALCULATED ON THE PREMISE OF
A FULL 52% TAX LIABILITY, I CANNOT SUBSCRIBE TO SUCH INTIMATIONS AS
THERE MAY BE IN THE OPINION RELIED UPON BY THAT COURT THAT THE
COMMISSION MAY NEVER ALLOCATE IN A CONSOLIDATED TAX SITUATION. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS.  (FN14) 

FN1  26 U.S.C. SECS. 1501-1505. 

FN2  "THE PERMISSION TO FILE CONSOLIDATED RETURNS BY AFFILIATED
CORPORATIONS MERELY RECOGNIZES THE BUSINESS ENTITY AS DISTINGUISHED
FROM THE LEGAL CORPORATE ENTITY OF THE BUSINESS ENTERPRISE."  S. REP.
NO. 960, 70TH CONG., 1ST SESS., P. 14.   FN3  THE COURT'S OPINION
SEIZES ON THE LANGUAGE OF FPC V. HOPE NATURAL GAS CO., 320 U.S. 591,
602, FOR THE PROPOSITION THAT JUDICIAL INQUIRY MUST BE AT AN END WHEN
IT IS DETERMINED THAT A RATE ORDER "CANNOT BE SAID TO BE UNJUST AND
UNREASONABLE."  BUT THE PROBLEM BEFORE THE COURT IN THAT CASE WAS AN
ENTIRELY DIFFERENT ONE.  THERE IT WAS ARGUED THAT THE COURT WAS
OBLIGATED TO DELVE INTO THE DETAILS OF AN INITIAL RATEMAKING IN ORDER
TO DETERMINE WHETHER CERTAIN RATES WERE REASONABLE.  THE COURT HELD
THAT IN AN INITIAL RATEMAKING THE ESSENTIAL QUESTION WAS ONLY WHETHER
THE RETURN ACTUALLY ALLOWED PERMITTED THE COMPANY TO SUSTAIN ITSELF IN
THE MARKET.  THE COURT NOTED THAT IT COULD NOT BECOME INVOLVED IN
QUESTIONS OF "FAIR VALUE" BECAUSE "THE VALUE OF THE GOING ENTERPRISE
DEPENDS ON EARNINGS UNDER WHATEVER RATES MAY BE ANTICIPATED."  ID., AT
601.  NOTHING IN HOPE NATURAL GAS SUGGESTS THAT COURTS ARE POWERLESS TO
REVIEW A PARTICULAR FORMULA TO DETERMINE WHETHER IT IS BASED ON
RATIONAL CRITERIA.  A RETURN WHICH IS "JUST AND REASONABLE" MUST
REFLECT UNDERLYING CONGRESSIONAL POLICIES.  THUS COURTS HAVE NOT
HESITATED TO REVIEW THE UNDERLYING RATIONALES OF COMMISSION DECISIONS
WHILE GIVING DUE DEFERENCE TO THE COMMISSION'S DISCRETION.  SEE, E.G.,
TENNESSEE GAS TRANSMISSION CO. V. FPC, 293 F.2D 761; UNITED GAS IMP. 
CO. V. FPC, 290 F.2D 133; DETROIT V. FPC, 97 U.S. APP.  D.C. 260, 230
F.2D 810. 

FN4  THUS DESPITE THE COURT'S "SINGLE CONSOLIDATED TAX LIABILITY"
PHRASEOLOGY, I AM CERTAIN THAT THE COURT DOES NOT MEAN TO IMPLY THAT
THE COMMISSION MAY ALLOCATE BY ANY CRITERION OTHER THAN TAXABLE
INCOMES.  THE COURT CANNOT MEAN TO SUGGEST THAT, FOR EXAMPLE, THE
COMMISSION IS EMPOWERED TO ALLOCATE BY GROSS REVENUES AND THUS CONSIDER
SPECIAL DEDUCTIONS BELONGING TO NONJURISDICTIONAL ACTIVITIES AS
ALLOCABLE FOR RATEMAKING PURPOSES WHEN THE NONJURISDICTIONAL ACTIVITY
IS FULLY CAPABLE OF USING THEM. 

FN5  IN DETERMINING WHAT IT CONSIDERED TO BE THE PROPERLY ALLOCATED
PERCENTAGE OF "TAX SAVING" FOR RATEMAKING PURPOSES THE COMMISSION
UTILIZED A FIVE-YEAR AVERAGE (1957-1961) TO ELIMINATE THE EFFECTS OF
SHORT-TERM FLUCTUATION.  DURING THAT PERIOD, THE TOTAL TAX LOSSES OF
UNION AND OVERSEAS WERE $3,893,980.  THE TOTAL TAXABLE INCOME OF GAS
CORPORATION, ALL OF WHICH WAS NONJURISDICTIONAL, WAS $9,024,170. 
MOREOVER, 56% OF UNITED'S TAXABLE INCOME OF $105,290,983 WAS
NONJURISDICTIONAL.  THUS EVEN IN THE TWO YEARS, 1960 AND 1961, WHEN THE
TAX LOSSES OF UNION AND OVERSEAS EXCEEDED THE TAXABLE INCOME OF GAS
CORPORATION, THE GROUP'S NONJURISDICTIONAL TAXABLE INCOME WAS MORE THAN
SUFFICIENT TO OFFSET ALL TAX LOSSES. 

THE COURT NOTES THE OBSERVATION, MADE BY THE FPC IN ITS BRIEF, P. 26,
THAT UNITED REFLECTED A "TAX SAVING" ON ITS BOOKS.  THIS STATEMENT IS
SOMEWHAT MISLEADING SINCE IT IS DIRECTED TO THE ALLOCATION MADE FOR
EARNINGS AND PROFITS TAX PURPOSES UNDER 26 U.S.C. SEC. 1552(A)(1) AND
THAT ALLOCATION BEARS NO NECESSARY RELATION TO THE ACTUAL ALLOCATION OF
LIABILITY FOR CORPORATE PURPOSES.  EXHIBIT 14-1 REVEALS THAT, ON THE
BASIS OF ALLOCATED LIABILITY FOR CORPORATE PURPOSES, UNITED HAD AN
AVERAGE EFFECTIVE TAX RATE OF 51.749% FOR THE TEST YEARS. 

MOREOVER, THE ALLOCATION OF SETOFFS IN THE 1957-1961 PERIOD HAS NO
DIRECT RELEVANCE TO THE ISSUE IN THIS CASE FOR THE COMMISSION WAS NOT
ENGAGED IN ANALYZING RATES FOR THAT PERIOD.  THE RATES UNDER SCRUTINY
WERE THOSE UNITED PROPOSED TO CHARGE IN THE FUTURE.  IF THE COMMISSION
HAD FOUND THAT UNITED ACTUALLY INTENDED TO ALLOCATE SETOFFS TO ITS
JURISDICTIONAL OPERATION FOR CORPORATE PURPOSES WHILE ATTEMPTING TO
TAKE A FULL 52% TAX EXPENSE DEDUCTION FOR RATEMAKING PURPOSES, THE
COMMISSION MIGHT WELL HAVE BEEN JUSTIFIED IN RECOGNIZING THE SETOFFS
FOR RATEMAKING PURPOSES TO THE EXTENT THAT UNITED ACTUALLY UTILIZED
THEM.  ON THIS RECORD, IT IS CLEAR THAT THE COMMISSION DID NOT MAKE ANY
SUCH FINDING. 

FN6  26 U.S.C. SEC. 1501 REQUIRES THAT ALL OF THE AFFILIATED
CORPORATIONS CONSENT TO THE FILING OF THE CONSOLIDATED RETURN. 

FN7 PROPOSED TREAS. REG. SEC. 1.1502-33 RECENTLY PROMULGATED BY THE
COMMISSIONER OF INTERNAL REVENUE MAKES THIS A PERMISSIBLE MEANS OF
ALLOCATION.  31 FED. REG. 16788-16789. 

FN8  AND THIS NONJURISDICTIONAL DECISION WOULD SEEM OUTSIDE THE
COMMISSION'S CONTROL EVEN IF IT WERE INFLUENCED BY THE FACT THAT UNITED
COULD BENEFIT LESS FROM THE LOWER PRICE BECAUSE THE RATEPAYERS WOULD
ABSORB THE BENEFIT.  UNION AND OVERSEAS HAVE NO DUTY TO ACT FOR THE
BENEFIT OF UNITED'S RATEPAYERS.  AND IF UNITED WERE TO JOIN IN A GROUP
COMPACT AGREEING TO THIS ALLOCATION OF EXCESS PIPE WITH THE PROVISO
THAT THE EXCESS WOULD BE SOLD TO UNITED IN THE ABSENCE OF OTHER NEEDS,
THE DECISION WOULD SEEM PERFECTLY JUSTIFIABLE.  UNITED'S CONTINGENT
BENEFIT WOULD BE MORE THAN IT WOULD HAVE OUTSIDE THE COMPACT, AND SINCE
UNITED HAS NO RIGHT TO COMPEL THE NONJURISDICTIONAL CORPORATIONS TO
DEAL WITH IT, UNITED WOULD NOT HAVE SURRENDERED ANYTHING.  SEE CASE V.
NEW YORK CENTRAL R. CO., 15 N.Y.2D 150, 204 N.E.2D 643. 

FN9  IT SHOULD BE NOTED AS WELL THAT THIS EXAMPLE MAKES CLEAR THAT IT
IS ENTIRELY NORMAL FOR UNITED TO BE EXPECTED TO PAY FOR THE ACQUISITION
OF THE ASSET, AND THUS SOME CONSIDERATION SHOULD PASS TO UNION AND
OVERSEAS.  THIS POINT IS FURTHER DEVELOPED IN PART II OF THIS OPINION. 

FN10  TITLE 18 CFR SEC. 154.63(F) WHICH DEALS WITH JOINT FACILITIES
REQUIRES ALLOCATION OF EXPENSES BETWEEN JURISDICTIONAL AND
NONJURISDICTIONAL ACTIVITIES. 

FN11  THIS FORMULATION IS, OF COURSE, VERY SIMILAR IN FORM TO THAT
UTILIZED BY THE COMMISSION.  THE ESSENTIAL DIFFERENCE LIES IN THE FACT
THAT THE COMMISSION SUBSTITUTED THE CONCEPT OF A "REGULATED
CORPORATION" FOR THAT OF A JURISDICTIONAL ACTIVITY.  THE REGULATED
UNREGULATED DIVISION MADE BY THE COMMISSION HAS NO BASIS IN THE NATURAL
GAS ACT. 

FN12  THE COMMISSION HAS ARGUED THAT THE INTENDED BENEFIT CAN BE
DISREGARDED IN THIS CASE BECAUSE THE LOSS CORPORATIONS ARE IN THAT
CATEGORY FOR TAX PURPOSES SOLELY BECAUSE OF DEPLETION ALLOWANCES AND
ARE ACTUALLY PROFITABLE IN ECONOMIC TERMS.  WHILE THIS ARGUMENT MIGHT
BE THOUGHT TO HAVE SOME FORCE, IT IS NOT FOR US TO DECIDE THAT THE
DEPLETION ALLOWANCES CONGRESS HAS AUTHORIZED ARE NOT REAL COSTS OF
CARRYING ON THE BUSINESS. 

FN13  THE COMMISSION, IF NOT THE COURT, WAS AWARE OF THIS PROBLEM. 
IN ITS PETITION FOR CERTIORARI, P. 10, N. 8, THE COMMISSION RECOGNIZED
THAT "THERE MAY INDEED BE PROBLEMS IN THE APPLICATION OF  ...  A
FORMULA WHICH MAY RESULT IN ALLOCATING THE ENTIRE TAX SAVING RESULTING
FROM LOSSES ON UNREGULATED ACTIVITIES TO THE REGULATED MEMBERS OF THE
CONSOLIDATED GROUP."  THE COMMISSION HAS NOT ATTEMPTED TO JUSTIFY ITS
FORMULA TO THIS COURT. 

FN14  SINCE, IN MY VIEW, NO ALLOCATION IS PERMISSIBLE IN THE
CIRCUMSTANCES OF THESE CASES, AS A MATTER OF LAW, A REMAND TO THE FPC
IS UNNECESSARY.  UNDER THE COURT'S VIEW, HOWEVER, SUCH A REMAND WOULD
APPEAR TO BE THE APPROPRIATE DISPOSITION.  THE COURT'S "SINGLE
CONSOLIDATED TAX LIABILITY" JURISDICTIONAL FORMULATION IS ESSENTIALLY
THE "FUSED MASS" THEORY PROPOSED BY THE COMMISSION STAFF AND REJECTED
BY THE COMMISSION FOR JURISDICTIONAL REASONS.  CITIES SERVICE GAS CO.,
30 F.P.C. 158, 160.  THE COMMISSION SHOULD AT LEAST BE REQUIRED TO RE
EXAMINE THE MATTER UNDER THE COURT'S JURISDICTIONAL PREMISES.  SEC V.
CHENERY CORP., 318 U.S. 80; CONNECTICUT LIGHT & POWER CO. V. FPC, 324
U.S. 515, 534.  IN ANY EVENT, I CANNOT UNDERSTAND THE COURT'S REMAND TO
THE COURT OF APPEALS, THE COMMISSION'S POWER TO ALLOCATE AND ITS
ALLOCATION FORMULA HAVING ALREADY BEEN UPHELD BY THIS COURT. 
..END :















SWENSON V. BOSLER 386 U.S. 258 


NO. 759.  DECIDED MARCH 13, 1967 - CERTIORARI GRANTED; 363 F.2D 154,
AFFIRMED. 


THE COURT OF APPEALS' HOLDING THAT THE FORMER MISSOURI PRACTICE OF
DECIDING DIRECT CRIMINAL APPEALS BY CONVICTED INDIGENTS WITHOUT THE
APPOINTMENT OF APPELLATE COUNSEL IS INVALID UNDER DOUGLAS V.
CALIFORNIA, 372 U.S. 353, IS AFFIRMED.  THE ASSISTANCE OF APPELLATE
COUNSEL IS AN ADVANTAGE WHICH MAY NOT BE DENIED TO A CRIMINAL
DEFENDANT, SOLELY BECAUSE OF INDIGENCY, ON THE ONLY APPEAL WHICH THE
STATE AFFORDS HIM AS A MATTER OF RIGHT; AND WHEN A DEFENDANT WHOSE
INDIGENCY AND DESIRE TO APPEAL ARE MANIFEST DOES NOT HAVE THE SERVICES
OF HIS TRIAL COUNSEL ON APPEAL, KNOWING WAIVER CANNOT BE INFERRED FROM
HIS FAILURE SPECIFICALLY TO REQUEST APPOINTMENT OF APPELLATE COUNSEL. 

SWENSON, WARDEN V. BOSLER. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

PETITIONER SEEKS CERTIORARI FROM A JUDGMENT OF THE COURT OF APPEALS
HOLDING INVALID UNDER THE DOCTRINE OF DOUGLAS V. CALIFORNIA, 372 U.S.
353, THE STATE OF MISSOURI'S FORMER PRACTICE OF DECIDING DIRECT
CRIMINAL APPEALS BY CONVICTED INDIGENT DEFENDANTS WITHOUT THE
APPOINTMENT OF APPELLATE COUNSEL.  WE GRANT THE WRIT OF CERTIORARI AND,
FOR THE REASONS BELOW, WE AFFIRM. 

UNDER MISSOURI CRIMINAL PRACTICE, A CONVICTED DEFENDANT'S MOTION FOR
NEW TRIAL MUST SET FORTH IN DETAIL HIS SPECIFIC GROUNDS FOR RELIEF; AND
IN GENERAL, A MISSOURI APPELLATE COURT MAY NOT CONSIDER ON APPEAL
QUESTIONS WHICH WERE NOT FIRST PRESENTED TO THE TRIAL COURT IN A MOTION
FOR NEW TRIAL.  SEE STATE V. MALLORY, 336 S.W.2D 383 (MO. SUP. CT.),
CERT. DENIED, 364 U.S. 852; STATE V. DAVIS, 251 S.W.2D 610, 615-616
(MO. SUP. CT.); MO. SUP. CT. RULE CRIM.  PROC. 27.20.  PRIOR TO MARCH
1, 1964, MISSOURI HAD NO RULE REQUIRING APPOINTMENT OF APPELLATE
COUNSEL FOR INDIGENT DEFENDANTS.*  IF TRIAL COUNSEL FILED A MOTION FOR
NEW TRIAL AND NOTICE OF APPEAL AND THEN WITHDREW FROM THE CASE, THE
SUPREME COURT OF MISSOURI WOULD REQUIRE PREPARATION OF THE TRANSCRIPT
FOR APPEAL AND THEN WOULD CONSIDER THE QUESTIONS RAISED BY THE MOTION
FOR NEW TRIAL ON THE BASIS OF PRO SE BRIEFS BY THE DEFENDANT-APPELLANT,
OR ON NO BRIEFS AT ALL.  THIS IS WHAT OCCURRED IN THIS CASE.  WE AGREE
WITH THE COURT OF APPEALS THAT THIS PROCEDURE VIOLATED RESPONDENT'S
FOURTEENTH AMENDMENT RIGHTS, AS DEFINED IN DOUGLAS, EVEN THOUGH
RESPONDENT'S TRIAL COUNSEL FILED THE NOTICE OF APPEAL AND A MOTION FOR
NEW TRIAL WHICH SPECIFICALLY DESIGNATED THE ISSUES WHICH COULD BE
CONSIDERED ON DIRECT APPEAL.  THE ASSISTANCE OF APPELLATE COUNSEL IN
PREPARING AND SUBMITTING A BRIEF TO THE APPELLATE COURT WHICH DEFINES
THE LEGAL PRINCIPLES UPON WHICH THE CLAIMS OF ERROR ARE BASED AND WHICH
DESIGNATES AND INTERPRETS THE RELEVANT PORTIONS OF THE TRIAL TRANSCRIPT
MAY WELL BE OF SUBSTANTIAL BENEFIT TO THE DEFENDANT.  THIS ADVANTAGE
MAY NOT BE DENIED TO A CRIMINAL DEFENDANT, SOLELY BECAUSE OF HIS
INDIGENCY, ON THE ONLY APPEAL WHICH THE STATE AFFORDS HIM AS A MATTER
OF RIGHT. 

*ON JULY 9, 1963, AFTER THE DOUGLAS DECISION, MISSOURI ALTERED ITS
APPELLATE PRACTICE BY ADDING SUBSECTION (C) TO RULE 29.01 OF THE
SUPREME COURT'S RULES OF CRIMINAL PROCEDURE, EFFECTIVE MARCH 1, 1964: 

"(C)  WHEN A DEFENDANT IS CONVICTED OF A FELONY, IS SENTENCED
THEREFOR AND DESIRES TO APPEAL, IF IT APPEARS FROM A SHOWING OF
INDIGENCY THAT THE DEFENDANT IS UNABLE TO EMPLOY COUNSEL THE TRIAL
COURT SHALL APPOINT COUNSEL TO REPRESENT HIM UPON SUCH APPEAL; SUCH
COUNSEL MAY, IN THE DISCRETION OF THE COURT, BE THE SAME COUNSEL WHO
REPRESENTED THE DEFENDANT AT THE TRIAL OR OTHER COUNSEL." 

PETITIONER CONTENDS THAT, SINCE THE DISTRICT COURT DID NOT HOLD A
HEARING TO DETERMINE WHETHER RESPONDENT ACTUALLY REQUESTED THE
APPOINTMENT OF APPELLATE COUNSEL, THE RECORD AS IT PRESENTLY EXISTS
DOES NOT SUPPORT THE COURT OF APPEALS' EXPRESS CONCLUSION THAT
RESPONDENT DID MAKE SUCH A REQUEST.  RESPONDENT INCLUDED IN THE
APPENDIX TO HIS PETITION TO THE DISTRICT COURT A COPY OF THE FULL
TRANSCRIPT OF HIS MISSOURI TRIAL, THE ACCURACY OF WHICH PETITIONER DOES
NOT CONTEST.  WE THINK THE DOCUMENTS CONTAINED IN THIS TRANSCRIPT
DEMONSTRATE THAT RESPONDENT DID INDICATE TO THE MISSOURI COURTS HIS
DESIRE FOR COUNSEL ON APPEAL.  BUT EVEN IF SUCH A REQUEST HAD NOT BEEN
MADE, WE DO NOT THINK ITS ABSENCE WOULD AMOUNT TO A WAIVER OF
RESPONDENT'S RIGHTS.  IT IS NOW SETTLED "THAT WHERE THE ASSISTANCE OF
COUNSEL IS A CONSTITUTIONAL REQUISITE, THE RIGHT TO BE FURNISHED
COUNSEL DOES NOT DEPEND ON A REQUEST."  CARNLEY V. COCHRAN, 369 U.S.
506, 513.  WHEN A DEFENDANT WHOSE INDIGENCY AND DESIRE TO APPEAL ARE
MANIFEST DOES NOT HAVE THE SERVICES OF HIS TRIAL COUNSEL ON APPEAL, IT
SIMPLY CANNOT BE INFERRED FROM DEFENDANT'S FAILURE SPECIFICALLY TO
REQUEST APPOINTMENT OF APPELLATE COUNSEL THAT HE HAS KNOWINGLY AND
INTELLIGENTLY WAIVED HIS RIGHT TO THE APPOINTMENT OF APPELLATE
COUNSEL.  AFFIRMED. 
..END :







HESTER V. SWENSON 386 U.S. 261 


NO. 397, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


HESTER V. SWENSON, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF MISSOURI FOR FURTHER
CONSIDERATION.  SWENSON V. BOSLER, ANTE, P. 258; ESKRIDGE V. WASHINGTON
STATE BOARD OF PRISON TERMS AND PAROLES, 357 U.S. 214; TEHAN V. SHOTT,
382 U.S. 406, 416. 
..END :













YOUNG V. UNITED STATES PAROLE BOARD 386 U.S. 261 


NO. 1193, MISC.  DECIDED MARCH 13, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


YOUNG V. UNITED STATES BOARD OF PAROLE. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















ALTERMAN V. PSC OF TENNESSEE 386 U.S. 262 


NO. 942.  DECIDED MARCH 13, 1967.  - 259 F. SUPP. 486, AFFIRMED. 


ALTERMAN TRANSPORT LINES, INC., ET AL. V. PUBLIC SERVICE COMMISSION OF
TENNESSEE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF TENNESSEE. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE STEWART IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














HOLLIS V. CALIFORNIA 386 U.S. 262 


NO. 46, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


HOLLIS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










RICKS V. CALIFORNIA 386 U.S. 263 


NO. 36, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


RICKS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










FONTAINE V. CALIFORNIA 386 U.S. 263 


NO. 50, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


FONTAINE V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










HAENDIGES V. FORD 386 U.S. 264 


NO. 925.  DECIDED MARCH 13, 1967.  - 7 OHIO ST. 2D 9, 218 N.E.2D 434,
APPEAL DISMISSED. 


HAENDIGES V. FORD. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED, IT
APPEARING THAT THE JUDGMENT BELOW RESTS UPON AN ADEQUATE STATE GROUND. 

..END :
















ANDERS V. CALIFORNIA 386 U.S. 264 


NO. 12, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


ANDERS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










TETTAMBLE V. MISSOURI 386 U.S. 265 


NO. 32, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; 394 S.W.2D
375, VACATED AND REMANDED. 


TETTAMBLE V. MISSOURI. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF MISSOURI FOR FURTHER
CONSIDERATION IN LIGHT OF SWENSON V. BOSLER, ANTE, P. 258. 
..END :















HUDGINS V. CALIFORNIA 386 U.S. 265 


NO. 37, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


HUDGINS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART IS OF THE OPINION THAT CERTIORARI SHOULD BE
DENIED BECAUSE THE PETITION WAS NOT TIMELY FILED. 
..END :











FORD V. CALIFORNIA 386 U.S. 266 


NO. 140, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


FORD V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










NIELSEN V. NEBR. STATE BAR ASS'N 386 U.S. 266 


NO. 1180, MISC.  DECIDED MARCH 13, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


NIELSEN V. NEBRASKA STATE BAR ASSOCIATION. 

APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WHEATON V. CALIFORNIA 386 U.S. 267 


NO. 46.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


WHEATON V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE REMANDED FOR FURTHER CONSIDERATION IN THE LIGHT OF
CHAPMAN V. CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :











WACKENHUT V. APONTE 386 U.S. 268 


NO. 726.  DECIDED MARCH 13, 1967.  - AFFIRMED. 


WACKENHUT CORP. ET AL. V. APONTE, SUPERINTENDENT OF POLICE, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















GALVESTON V. UNITED STATES 386 U.S. 269 


NO. 827.  DECIDED MARCH 13, 1967.* - 257 F. SUPP. 243, AFFIRMED. 

*TOGETHER WITH NO. 828, ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET
AL. V. UNITED STATES ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


CITY OF GALVESTON ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :















LOUISIANA V. UNITED STATES 386 U.S. 270 


NO. 938.  DECIDED MARCH 13, 1967.  - AFFIRMED. 


LOUISIANA ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR HEARING. 
..END :















DAUGHERTY V. CALIFORNIA 386 U.S. 271 


NO. 19, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


DAUGHERTY V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










GARNER V. CALIFORNIA 386 U.S. 272 


NO. 22, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


GARNER V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










ERB V. CALIFORNIA 386 U.S. 273 


NO. 23, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


ERB V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










COTTER V. CALIFORNIA 386 U.S. 274 


NO. 38, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; 63 CAL. 2D
386, 405 P.2D 862, VACATED AND REMANDED. 


COTTER V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










PROPP V. CALIFORNIA 386 U.S. 275 


NO. 39, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


PROPP V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










OTWELL V. CALIFORNIA 386 U.S. 276 


NO. 44, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


OTWELL V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










SHAW V. CALIFORNIA 386 U.S. 277 


NO. 52, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


SHAW V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DEPARTMENT OF THE
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










BOYDEN V. CALIFORNIA 386 U.S. 278 


NO. 57, MISC.  DECIDED MARCH 13, 1967.  - 237 CAL. APP. 2D 695, 47 CAL.
RPTR.  136, VACATED AND REMANDED. 


BOYDEN V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
JUDGMENT IS VACATED AND THE CASE REMANDED FOR FURTHER CONSIDERATION IN
LIGHT OF CHAPMAN V. CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD VACATE THE JUDGMENT AND REMAND FOR
RECONSIDERATION IN LIGHT OF THE VIEWS STATED IN HIS OPINION CONCURRING
IN THE RESULT IN CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :











ROY V. CALIFORNIA 386 U.S. 279 


NO. 68, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


ROY V. CALIFORNIA ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, FOURTH APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










MCCLELLAN V. CALIFORNIA 386 U.S. 280 


NO. 69, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


MCCLELLAN V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










DAVIS V. CALIFORNIA 386 U.S. 281 


NO. 157, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


DAVIS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI, VACATE THE JUDGMENT, AND
REMAND FOR RECONSIDERATION IN LIGHT OF THE VIEWS STATED IN HIS OPINION
CONCURRING IN THE RESULT IN CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










ADAMS V. CALIFORNIA 386 U.S. 282 


NO. 332, MISC.  FILED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


ADAMS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










MICHAEL V. CALIFORNIA 386 U.S. 283 


NO. 465, MISC.  FILED MARCH 13, 1967.  - CERTIORARI GRANTED, VACATED AND
REMANDED. 


MICHAEL V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










DECKARD V. MISSOURI PENITENTIARY 386 U.S. 284 


NO. 533, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


DECKARD V. WARDEN, MISSOURI PENITENTIARY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF MISSOURI FOR FURTHER
CONSIDERATION.  SWENSON V. BOSLER, ANTE, P. 258; ESKRIDGE V. WASHINGTON
STATE BOARD OF PRISON TERMS AND PAROLES, 357 U.S. 214; TEHAN V. SHOTT,
382 U.S. 406, 416. 
..END :













BEATTIE V. CALIFORNIA 386 U.S. 285 


NO. 556, MISC.  FILED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


BEATTIE V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










GARRISON V. CALIFORNIA 386 U.S. 286 


NO. 664, MISC.  DECIDED MARCH 13, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


GARRISON V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, THIRD APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF CHAPMAN V.
CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE STEWART WOULD GRANT CERTIORARI AND REVERSE THE JUDGMENT
FOR THE REASONS STATED IN HIS OPINION CONCURRING IN THE RESULT IN
CHAPMAN V. CALIFORNIA, ANTE, AT 42. 
..END :










CASCADE NAT. GAS V. EL PASO NAT. GAS 386 U.S. 129 


NO. 4.  ARGUED JANUARY 12, 1967.  - DECIDED FEBRUARY 27, 1967.* -
REVERSED AND REMANDED. 

*TOGETHER WITH NO. 5, CALIFORNIA V. EL PASO NATURAL GAS CO. ET AL.,
AND NO. 24, SOUTHERN CALIFORNIA EDISON CO. V. EL PASO NATURAL GAS CO.
ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


ALMOST THREE YEARS AGO THIS COURT DIRECTED THE DISTRICT COURT TO ORDER
"WITHOUT DELAY" THAT APPELLEE EL PASO NATURAL GAS CO. DIVEST ITSELF OF
THE PACIFIC NORTHWEST PIPELINE CORP., WHOSE ACQUISITION BY EL PASO WAS
FOUND TO HAVE VIOLATED SEC 7 OF THE CLAYTON ACT.  UNITED STATES V. EL
PASO NATURAL GAS CO., 376 U.S. 651, 662.  FOLLOWING REMAND, LEAVE WAS
UNSUCCESSFULLY SOUGHT UNDER RULE 24(A) OF THE FEDERAL RULES OF CIVIL
PROCEDURE TO INTERVENE IN THE DIVESTITURE PROCEEDINGS BY VARIOUS
PARTIES, INCLUDING APPELLANTS, THE STATE OF CALIFORNIA, WHERE EL PASO
SELLS MOST OF ITS GAS; SOUTHERN CALIFORNIA EDISON, A LARGE INDUSTRIAL
NATURAL GAS USER IN CALIFORNIA; AND CASCADE NATURAL GAS, A DISTRIBUTOR
IN OREGON AND WASHINGTON, WHOSE SOLE SUPPLIER OF NATURAL GAS WAS
PACIFIC NORTHWEST.  RULE 24(A)(3) THEN PROVIDED FOR INTERVENTION OF
RIGHT WHEN THE APPLICANT IS "SO SITUATED" AS TO BE "ADVERSELY AFFECTED
BY  ...  DISPOSITION OF PROPERTY" UNDER COURT CONTROL.  AMENDED RULE
24(A)(2), WHICH BECAME EFFECTIVE AFTER THE INTERVENTION MOTIONS WERE
DENIED, PROVIDES FOR INTERVENTION OF RIGHT "WHEN THE APPLICANT CLAIMS
AN INTEREST RELATING TO THE PROPERTY 

...  AND HE IS SO SITUATED THAT THE DISPOSITION OF THE ACTION MAY AS
A PRACTICAL MATTER IMPAIR OR IMPEDE HIS ABILITY TO PROTECT THAT
INTEREST" UNLESS IT IS ADEQUATELY REPRESENTED BY EXISTING PARTIES.  THE
DISTRICT COURT THEREAFTER APPROVED A DIVESTITURE PLAN WHEREBY A NEW
COMPANY WOULD BE FORMED BY EL PASO TO RECEIVE THE PROPERTIES AND ASSETS
WHICH EL PASO RECEIVED FROM PACIFIC NORTHWEST.  APPELLANTS, CLAIMING
THAT THE CONDITIONS UNDER WHICH THE NEW COMPANY WOULD BE ESTABLISHED
WOULD FAIL TO CREATE A COMPETITIVE PIPELINE IN KEEPING WITH THIS
COURT'S MANDATE, APPEALED FROM THE DISTRICT COURT'S DENIAL OF THEIR
MOTIONS TO INTERVENE.  HELD: 

1.  THE DISTRICT COURT ERRED IN DENYING APPELLANTS THE RIGHT TO
INTERVENE IN THE DIVESTITURE PROCEEDINGS.  PP. 133-136. 

(A)  THE CATEGORY UNDER OLD RULE 24(A)(3) OF "SO SITUATED" AS TO BE
"ADVERSELY AFFECTED" BY DISPOSITION OF PROPERTY WAS NOT LIMITED
EXCLUSIVELY TO THOSE WITH AN INTEREST IN PROPERTY.  PP. 133-135. 

(B)  PROTECTION OF CALIFORNIA INTERESTS IN A COMPETITIVE SYSTEM WAS
"AT THE HEART OF OUR MANDATE" DIRECTING DIVESTITURE (CF. MISSOURI
KANSAS PIPE LINE CO. V. UNITED STATES, 312 U.S. 502, 506).  BOTH THE
STATE OF CALIFORNIA AND SOUTHERN CALIFORNIA EDISON QUALIFIED AS
INTERVENORS OF RIGHT UNDER OLD RULE 24(A)(3).  P. 135. 

(C)  SINCE THE ENTIRE MERITS OF THE CASE MUST BE REOPENED TO GIVE
THOSE PARTIES AN OPPORTUNITY TO BE HEARD AS OF RIGHT AS INTERVENORS,
THE NEW RULE 24(A)(2), WHICH IS APPLICABLE TO "FURTHER PROCEEDINGS" IN
PENDING ACTIONS, IS BROAD ENOUGH TO INCLUDE CASCADE AS AN INTERVENOR AS
OF RIGHT SINCE IT HAS "AN INTEREST," NOT OTHERWISE ADEQUATELY
REPRESENTED, IN THE "TRANSACTION WHICH IS THE SUBJECT OF THIS ACTION." 
PP. 135-136. 

2.  THOUGH THE ATTORNEY GENERAL HAS THE RIGHT TO SETTLE LITIGATION,
SUCH "SETTLEMENT" CANNOT CIRCUMSCRIBE THE EXECUTION OF THIS COURT'S
MANDATE.  P. 136. 

3.  THE FOLLOWING GUIDELINES ARE SUGGESTED FOR THE NEW DECREE: 

(A)  THE NEW COMPANY'S GAS RESERVES MUST NOT BE PROPORTIONATELY LESS
TO THE EXISTING RESERVES THAN THOSE WHICH PACIFIC NORTHWEST HAD WHEN IT
WAS INDEPENDENT; AND RESERVES DEVELOPED AFTER THE MERGER MUST, AFTER
THOROUGH HEARINGS, BE EQUITABLY DIVIDED BETWEEN EL PASO AND THE NEW
COMPANY.  PP. 136-137. 

(B)  THE TERMS OF GAS-ACQUISITION CONTRACTS SHOULD BE NEGOTIATED BY
THE NEW COMPANY, AFTER FULL OPPORTUNITY TO EVALUATE THEIR ADVISABILITY,
UNDER SUCH RESTRICTIONS AS THE NATURAL GAS ACT MAY IMPOSE.  PP. 137
138. 

(C)  THE COMPETITIVE POSITION OF THE NEW COMPANY AND ITS FINANCIAL
VIABILITY MUST BE COMPARABLE TO THAT WHICH PACIFIC NORTHWEST ENJOYED
BEFORE THE ILLEGAL MERGER OBLITERATED IT.  P. 138. 

(D)  THE SEVERANCE OF THE ILLEGAL COMBINATION, WHETHER BY SALE TO
OUTSIDE INTERESTS OR OTHERWISE, MUST BE SWIFTLY MADE AND EFFECTED IN
SUCH A MANNER AS TO ENSURE THAT THE NEW COMPANY'S STOCK DOES NOT END UP
UNDER CONTROL OF EL PASO INTERESTS.  PP. 138-142. 

4.  A DISTRICT JUDGE DIFFERENT FROM THE ONE WHO HEARD THE CASE BEFORE
SHALL BE ASSIGNED TO HEAR THE CASE ON REMAND.  PP. 142-143. 

CASCADE NATURAL GAS CORP. V. EL PASO NATURAL GAS CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WHEN THIS CASE WAS HERE THE LAST TIME,  (FN1)  WE HELD THAT THE
ACQUISITION OF PACIFIC NORTHWEST PIPELINE CORPORATION BY EL PASO
NATURAL GAS COMPANY VIOLATED SEC 7 OF THE CLAYTON ACT; AND WE DIRECTED
THE DISTRICT COURT "TO ORDER DIVESTITURE WITHOUT DELAY."  UNITED STATES
V. EL PASO NATURAL GAS CO., 376 U.S. 651, 662.  THAT WAS ON APRIL 6,
1964.  IT IS NOW NEARLY THREE YEARS LATER AND, AS WE SHALL SEE, NO
DIVESTITURE IN ANY MEANINGFUL SENSE HAS BEEN DIRECTED.  THE UNITED
STATES, NOW AN APPELLEE, MAINTAINS THAT THE ISSUES RESPECTING
DIVESTITURE ARE NOT BEFORE US.  THE THRESHOLD QUESTION DOES INDEED
INVOLVE ANOTHER MATTER.  APPELLANTS WERE DENIED INTERVENTION BY THE
DISTRICT COURT AND CAME HERE BY WAY OF APPEAL, 32 STAT. 823, 15 U.S.C.
SEC 29.  WE NOTED PROBABLE JURISDICTION.  382 U.S. 970. 

                                 I. 

THE INITIAL QUESTION CONCERNING INTERVENTION TURNS ON A CONSTRUCTION
OF RULE 24(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE ENTITLED
"INTERVENTION OF RIGHT."  AT THE TIME THE DISTRICT COURT RULED ON THE
MOTIONS THAT RULE PROVIDED IN RELEVANT PART, "UPON TIMELY APPLICATION
ANYONE SHALL BE PERMITTED TO INTERVENE IN AN ACTION  ...  (3) WHEN THE
APPLICANT IS SO SITUATED AS TO BE ADVERSELY AFFECTED BY  ...
DISPOSITION OF PROPERTY WHICH IS IN THE CUSTODY OR SUBJECT TO THE
CONTROL OR DISPOSITION OF THE COURT OR AN OFFICER THEREOF."  AS AMENDED
EFFECTIVE JULY 1, 1966, SUBSEQUENT TO THE TIME THESE MOTIONS TO
INTERVENE WERE DENIED, RULE 24(A)(2) PROVIDES THAT THERE MAY BE
INTERVENTION OF RIGHT, "WHEN THE APPLICANT CLAIMS AN INTEREST RELATING
TO THE PROPERTY OR TRANSACTION WHICH IS THE SUBJECT OF THE ACTION AND
HE IS SO SITUATED THAT THE DISPOSITION OF THE ACTION MAY AS A PRACTICAL
MATTER IMPAIR OR IMPEDE HIS ABILITY TO PROTECT THAT INTEREST, UNLESS
THE APPLICANT'S INTEREST IS ADEQUATELY REPRESENTED BY EXISTING
PARTIES." 

CALIFORNIA, ONE OF THE APPELLANTS, IS A STATE WHERE EL PASO SELLS
MOST OF ITS GAS AND ITS PURPOSE IN INTERVENING WAS TO ASSURE THAT
PACIFIC NORTHWEST, ILLEGALLY MERGED WITH EL PASO, OR ITS SUCCESSOR,
WOULD BE RESTORED AS AN EFFECTIVE COMPETITOR IN CALIFORNIA.  AS WE
NOTED IN THE PRIOR OPINION, PACIFIC NORTHWEST HAD BEEN "A SUBSTANTIAL
FACTOR IN THE CALIFORNIA MARKET AT THE TIME IT WAS ACQUIRED BY EL
PASO."  376 U.S., AT 658.  IT WAS TO RESTORE THAT "COMPETITIVE FACTOR"
THAT DIVESTITURE WAS ORDERED.  ID., AT 658-662.  SOUTHERN CALIFORNIA
EDISON, ANOTHER APPELLANT, IS A LARGE INDUSTRIAL USER OF NATURAL GAS
PURCHASING FROM EL PASO SOURCES AND DESIROUS OF RETAINING COMPETITION
IN CALIFORNIA.  CASCADE NATURAL GAS IS A DISTRIBUTOR IN OREGON AND
WASHINGTON, AND ITS SOLE SUPPLIER OF NATURAL GAS WAS PACIFIC NORTHWEST
AND WILL BE THE NEW COMPANY CREATED UNDER THE DIVESTITURE PLAN. 
CASCADE MAINTAINS THAT THERE HAS BEEN A GROSSLY UNFAIR DIVISION OF GAS
RESERVES BETWEEN EL PASO AND THE NEW COMPANY, PARTICULARLY IN THE
SOUTHWEST FIELD KNOWN AS THE SAN JUAN BASIN.  MOREOVER, THE DISTRICT
COURT APPROVED CONTRACTS BETWEEN EL PASO AND THE NEW COMPANY FOR
DELIVERY OF GAS BOTH FROM CANADA AND FROM THE SAN JUAN BASIN, AND
ALLOWED EL PASO UNILATERALLY AND WITHOUT APPLICATION TO THE FEDERAL
POWER COMMISSION, TO SADDLE NEW AND ALLEGEDLY ONEROUS PRICES AND OTHER
CONDITIONS ON THE NEW COMPANY.  MOREOVER, THE STOCK OF WEST COAST
TRANSMISSION CO., LTD., WAS ORDERED SOLD FOR THE BENEFIT OF EL PASO. 
PACIFIC NORTHWEST HAD OWNED ABOUT A FOURTH OF WEST COAST TRANSMISSION'S
STOCK AND THAT OWNERSHIP GAVE PACIFIC NORTHWEST, IT IS SAID, SPECIAL
INSIGHT INTO AND ACCESS TO THE CANADIAN GAS SUPPLY.  THESE FACTORS,
IMPLICATING THE ABILITY OF PACIFIC NORTHWEST TO PERFORM IN THE FUTURE,
GIVE CASCADE, IT IS ARGUED, STANDING TO INTERVENE. 

UNDER OLD RULE 24(A)(3) THOSE "ADVERSELY AFFECTED" BY A DISPOSITION
OF PROPERTY WOULD USUALLY BE THOSE WHO HAVE AN INTEREST IN THE
PROPERTY.  (FN2)  BUT WE CANNOT READ IT TO MEAN EXCLUSIVELY THAT
GROUP. 

RULE 24(A)(3) WAS NOT MERELY A RESTATEMENT OF EXISTING FEDERAL
PRACTICE AT LAW AND IN EQUITY.  IF IT HAD BEEN, THERE WOULD BE FORCE IN
THE ARGUMENT THAT THE RIGIDITY OF THE OLDER CASES REMAINS UNALTERED,
RESTRICTING INTERVENTION AS OF RIGHT VERY NARROWLY, AS FOR EXAMPLE
WHERE THERE IS A FUND IN COURT TO WHICH A THIRD PARTY ASSERTS A RIGHT
THAT WOULD BE LOST ABSENT INTERVENTION.  CREDITS COMMUTATION CO. V.
UNITED STATES, 177 U.S. 311, 316; CENTRAL TRUST CO. V. CHICAGO, R.I. &
P.R. CO., 218 F.336, 339.  BUT THE ADVISORY COMMITTEE STATED THAT RULE
24 "AMPLIFIES AND RESTATES THE PRESENT FEDERAL PRACTICE AT LAW AND IN
EQUITY."  WE THEREFORE KNOW THAT SOME ELASTICITY WAS INJECTED; (FN3)
AND THE QUESTION IS, HOW MUCH.  AS STATED BY THE COURT OF APPEALS FOR
THE SECOND CIRCUIT IN THE CENTRAL TRUST CO. CASE, "IT IS NOT ALWAYS
EASY TO DRAW THE LINE."  IBID. 

IN MISSOURI-KANSAS PIPE LINE CO. V. UNITED STATES, 312 U.S. 502, A
CONSENT DECREE WAS ENTERED IN AN ANTI-TRUST SUIT, DESIGNED TO PROTECT
PANHANDLE FROM COLUMBIA WHICH HAD ACQUIRED DOMINATION OF THE FORMER TO
STIFLE ITS COMPETITION.  THE DECREE SOUGHT TO ASSURE OPPORTUNITIES FOR
COMPETITION BY PANHANDLE.  A SECURITY HOLDER OF PANHANDLE SOUGHT TO
INTERVENE ON PANHANDLE'S BEHALF WHEN THE CONSENT DECREE WAS REOPENED
AND WAS DENIED THAT RIGHT.  WE REVERSED, NOTING AT THE OUTSET THAT "THE
CIRCUMSTANCES UNDER WHICH INTERESTED OUTSIDERS SHOULD BE ALLOWED TO
BECOME PARTICIPANTS IN A LITIGATION IS, BARRING VERY SPECIAL
CIRCUMSTANCES, A MATTER FOR THE NISI PRIUS COURT.  BUT WHERE THE
ENFORCEMENT OF A PUBLIC LAW ALSO DEMANDS DISTINCT SAFEGUARDING OF
PRIVATE INTERESTS BY GIVING THEM A FORMAL STATUS IN THE DECREE, THE
POWER TO ENFORCE RIGHTS THUS SANCTIONED IS NOT LEFT TO THE PUBLIC
AUTHORITIES NOR PUT IN THE KEEPING OF THE DISTRICT COURT'S
DISCRETION."  ID., AT 506. 

WE NOTED THAT PANHANDLE'S ECONOMIC INDEPENDENCE WAS "AT THE HEART OF
THE CONTROVERSY."  IBID.  IN THE PRESENT CASE PROTECTION OF CALIFORNIA
INTERESTS IN A COMPETITIVE SYSTEM WAS AT THE HEART OF OUR MANDATE
DIRECTING DIVESTITURE.  FOR IT WAS THE ABSORPTION OF PACIFIC NORTHWEST
BY EL PASO THAT STIFLED THAT COMPETITION AND DISADVANTAGED THE
CALIFORNIA INTERESTS.  IT WAS INDEED THEIR INTERESTS, AS PART OF THE
PUBLIC INTEREST IN A COMPETITIVE SYSTEM, THAT OUR MANDATE WAS DESIGNED
TO PROTECT.  IN THAT SENSE THE PRESENT CASE IS VERY CLOSE TO PIPE LINE
CO. APART FROM THAT BUT IN THE SPIRIT OF PIPE LINE CO. WE THINK THAT
CALIFORNIA AND SOUTHERN CALIFORNIA EDISON QUALIFY AS INTERVENORS UNDER
RULE 24(A)(3).  CERTAINLY THESE TWO APPELLANTS ARE "SO SITUATED"
GEOGRAPHICALLY AS TO BE "ADVERSELY AFFECTED" WITHIN THE MEANING OF RULE
24(A)(3) BY A MERGER THAT REDUCES THE COMPETITIVE FACTOR IN NATURAL GAS
AVAILABLE TO CALIFORNIANS.  WE CONCLUDE THAT IT WAS ERROR TO DENY THEM
INTERVENTION.  WE NEED NOT DECIDE WHETHER CASCADE COULD HAVE INTERVENED
AS OF RIGHT UNDER THAT RULE.  FOR THERE IS NOW IN EFFECT A NEW VERSION
OF RULE 24(A) WHICH IN SUBSECTION (2) RECOGNIZES AS A PROPER ELEMENT IN
INTERVENTION "AN INTEREST" IN THE "TRANSACTION WHICH IS THE SUBJECT OF
THE ACTION."  THIS RULE APPLIES TO "FURTHER PROCEEDINGS" IN PENDING
ACTIONS.  383 U.S. 1031.  SINCE THE ENTIRE MERITS OF THE CASE MUST BE
REOPENED TO GIVE CALIFORNIA AND SOUTHERN CALIFORNIA EDISON AN
OPPORTUNITY TO BE HEARD AS OF RIGHT AS INTERVENORS, WE CONCLUDE THAT
THE NEW RULE 24(A)(2) IS BROAD ENOUGH TO INCLUDE CASCADE ALSO; AND AS
WE SHALL SEE THE "EXISTING PARTIES" HAVE FALLEN FAR SHORT OF
REPRESENTING ITS INTERESTS.  WE THEREFORE REVERSE THE DISTRICT COURT IN
EACH OF THESE APPEALS AND REMAND WITH DIRECTIONS TO ALLOW EACH
APPELLANT TO INTERVENE AS OF RIGHT, TO VACATE THE ORDER OF DIVESTITURE
AND TO HAVE DE NOVO HEARINGS ON THE TYPE OF DIVESTITURE WE ENVISIONED
AND MADE PLAIN IN OUR OPINION IN 376 U.S. 651. 

                                       II. 

THE NECESSITY FOR NEW HEARINGS NEEDS A WORD OF EXPLANATION. 

THE UNITED STATES ON ORAL ARGUMENT STATED THAT THE DECREE TO WHICH IT
AGREED AND WHICH IT URGES US TO APPROVE WAS MADE IN "SETTLEMENT" OF THE
LITIGATION.  WE DO NOT QUESTION THE AUTHORITY OF THE ATTORNEY GENERAL
TO SETTLE SUITS AFTER, AS WELL AS BEFORE, THEY REACH HERE.  THE
DEPARTMENT OF JUSTICE, HOWEVER, BY STIPULATION OR OTHERWISE HAS NO
AUTHORITY TO CIRCUMSCRIBE THE POWER OF THE COURTS TO SEE THAT OUR
MANDATE IS CARRIED OUT.  NO ONE, EXCEPT THIS COURT, HAS AUTHORITY TO
ALTER OR MODIFY OUR MANDATE.  UNITED STATES V. DU PONT & CO., 366 U.S.
316, 325.  OUR DIRECTION WAS THAT THE DISTRICT COURT PROVIDE FOR
"DIVESTITURE WITHOUT DELAY."  THAT MANDATE IN THE CONTEXT OF THE
OPINION PLAINLY MEANT THAT PACIFIC NORTHWEST OR A NEW COMPANY BE AT
ONCE RESTORED TO A POSITION WHERE IT COULD COMPETE WITH EL PASO IN THE
CALIFORNIA MARKET. 

WE DO NOT UNDERTAKE TO WRITE THE DECREE.  BUT WE DO SUGGEST
GUIDELINES THAT SHOULD BE FOLLOWED: 

(1)  GAS RESERVES.  THE GAS RESERVES GRANTED THE NEW COMPANY MUST BE
NO LESS IN RELATION TO PRESENT EXISTING RESERVES THAN PACIFIC NORTHWEST
HAD WHEN IT WAS INDEPENDENT; AND THE NEW GAS RESERVES DEVELOPED SINCE
THE MERGER MUST BE EQUITABLY DIVIDED BETWEEN EL PASO AND THE NEW
COMPANY.  WE ARE TOLD BY THE INTERVENORS THAT EL PASO GETS THE NEW
RESERVES IN THE SAN JUAN BASIN - WHICH DUE TO THEIR GEOGRAPHICAL
PROPINQUITY TO CALIFORNIA ARE CRITICAL TO COMPETITION IN THAT MARKET. 
BUT THE MERGED COMPANY, WHICH DISCOVERED THEM, REPRESENTED THE
INTERESTS BOTH OF EL PASO AND OF PACIFIC NORTHWEST.  WE DO NOT KNOW
WHAT AN EQUITABLE DIVISION WOULD REQUIRE.  HEARINGS ARE NECESSARY,
FOLLOWED BY METICULOUS FINDINGS MADE IN LIGHT OF THE COMPETITIVE
REQUIREMENTS TO WHICH WE HAVE ADVERTED. 

AS ALREADY INDICATED, THE PROPOSED DECREE PROVIDES THE TERMS OF
CONTRACTS  (FN4)  IMPOSED ON THE NEW COMPANY RESPECTING THE PURCHASE
AND GATHERING OF GAS FROM VARIOUS SOURCES.  IT IS URGED THAT THESE
CONTRACTS ARE ONEROUS, DETRIMENTAL TO THE NEW COMPANY, AND PARTIAL TO
EL PASO INTERESTS.  WE DO NOT PASS UPON THE WISDOM OR DESIRABILITY OF
THE PROPOSED CONTRACTS.  IT IS ENOUGH TO NOTE THAT THEY WERE PROPOSED
BY EL PASO, THAT THE CHANGES, RELUCTANTLY ACCEDED TO BY THE GOVERNMENT,
WILL REDOUND TO THE SUBSTANTIAL BENEFIT OF EL PASO, AND THAT THE NEW
COMPANY HAS HAD NO OPPORTUNITY TO EVALUATE THE ADVISABILITY OF THE
TERMS OR TO NEGOTIATE FOR BETTER TERMS.  NOR HAS THE FEDERAL POWER
COMMISSION HAD THE OPPORTUNITY TO PASS UPON THE CONTRACTS.  THE TERMS
OF THESE CONTRACTS SHOULD BE NEGOTIATED BY THE NEW COMPANY UNDER SUCH
RESTRICTIONS AS THE NATURAL GAS ACT MAY IMPOSE. 

(2)  FINANCIAL ASPECTS.  AS NOTED, EL PASO IS ALLOWED TO SELL THE
STOCK OF WEST COAST TRANSMISSION CO., LTD., BROUGHT INTO THE MERGER BY
PACIFIC NORTHWEST, AND KEEP THE PROCEEDS, WHICH IF STOCK PRICES AT THE
TIME OF THE PROPOSED DIVESTITURE ARE CONSIDERED MIGHT RESULT, IT IS
ALLEGED, IN A PROFIT OF $10,000,000 OR MORE, WHILE THE NEW COMPANY GETS
THE STOCK OF NORTHWEST PRODUCTION CO. WHICH FROM 1960-1963 SHOWED HEAVY
LOSSES.  IT IS CHARGED THAT BY THE PROPOSED DECREE EL PASO IS SAVING
THE CREAM FOR ITSELF AND FOISTING THE "CATS AND DOGS" ON THE NEW
COMPANY.  IT IS ALSO EARNESTLY ARGUED THAT THE NEW COMPANY WILL SORELY
NEED THE VALUABLE AND FAIRLY LIQUID STOCK OF WEST COAST TRANSMISSION IF
IT IS TO HAVE THE WORKING CAPITAL NECESSARY TO RESTORE THE COMPETITIVE
BALANCE THAT THE MERGER DESTROYED.  THESE ARE HIGHLY RELEVANT
ARGUMENTS.  CERTAINLY A PLAN OF DIVESTITURE OF THE KIND WE ENVISAGED
MUST ESTABLISH A NEW COMPANY IN THE SAME OR COMPARABLE COMPETITIVE
POSITION THAT PACIFIC NORTHWEST WAS IN WHEN THE ILLEGAL MERGER
OBLITERATED IT. 

IT IS ALSO POINTED OUT THAT SOME $53,000,000 OF TAXABLE LOSSES WHICH
PACIFIC NORTHWEST HAD WERE UTILIZED BY EL PASO DURING THE YEARS
FOLLOWING THE ILL-STARRED MERGER.  IT IS ARGUED THAT SINCE THESE TAX
LOSS CARRY-OVERS WERE IN A REAL SENSE AN ASSET OF PACIFIC NORTHWEST
UTILIZED BY EL PASO, THE NEW COMPANY SHOULD RECEIVE OTHER ASSETS OR A
REDUCTION IN DEBT OF EQUIVALENT VALUE.  THESE ALLEGATIONS, IF PROVEN,
REQUIRE REMUNERATION OF SOME KIND TO THE NEW COMPANY.  FOR IT MUST BE A
VIABLE, HEALTHY UNIT, AS ABLE TO COMPETE AS PACIFIC NORTHWEST WAS WHEN
IT WAS ACQUIRED BY EL PASO. 

(3)  CONTROL OF EL PASO.  THE DIVESTITURE DECREE PROVIDES THAT EL
PASO IS TO CAUSE THE FORMATION OF THE NEW COMPANY, WHOSE CHIEF
EXECUTIVE SHALL BE APPROVED BY EL PASO, THE GOVERNMENT, AND THE COURT. 
THE NEW COMPANY IS TO FILE AN APPLICATION WITH THE FEDERAL POWER
COMMISSION "AT THE EARLIEST PRACTICABLE DATE" REQUESTING THE ISSUANCE
OF A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY AUTHORIZING IT TO
ACQUIRE, OWN, AND OPERATE THE PROPERTIES TO BE RECEIVED FROM EL PASO. 
(FN5)  WHEN THE NECESSARY CERTIFICATES, AUTHORIZATIONS, AND ORDERS ARE
OBTAINED FROM THE FPC, EL PASO IS TO TRANSFER TO THE NEW COMPANY THE
PROPERTIES AND ASSETS SET FORTH IN THE PLAN OF DIVESTITURE, GENERALLY
THOSE WHICH EL PASO RECEIVED FROM PACIFIC NORTHWEST.  IN RETURN, THE
NEW COMPANY IS TO ASSUME CERTAIN OF EL PASO'S INDEBTEDNESS AND ISSUE TO
EL PASO ALL ITS COMMON STOCK.  EL PASO IS TO TRANSFER THE NEW COMPANY
STOCK TO THE NEW COMPANY'S CHIEF EXECUTIVE, AS VOTING TRUSTEE.  THE NEW
COMPANY'S CHIEF EXECUTIVE SHALL RELEASE THE STOCK ONLY IN ACCORDANCE
WITH THE PLAN FOR DIVESTMENT OF EL PASO'S INTEREST IN THE STOCK.  UNDER
THE PLAN, EL PASO IS ORDERED COMPLETELY TO DIVEST ITSELF OF ALL
INTEREST IN THE NEW COMPANY STOCK WITHIN THREE YEARS AFTER THE TRANSFER
OF THE ASSETS TO THE NEW COMPANY.  ALTERNATE METHODS OF DIVESTMENT ARE
PROVIDED.  (1) EL PASO MAY, WITHIN 18 MONTHS OF THE TRANSFER,
DISTRIBUTE AT LEAST 80% OF THE SHARES TO HOLDERS OF EL PASO COMMON
STOCK WHO ARE WILLING TO EXCHANGE THEIR EL PASO SHARES FOR NEW COMPANY
SHARES, AND WHO SHALL OWN NO OTHER EL PASO SHARES IMMEDIATELY AFTER THE
EXCHANGE.  THE REMAINDER OF NEW COMPANY STOCK WOULD BE DISPOSED OF BY A
PUBLIC OFFERING.  (2) IF EL PASO DOES NOT DISPOSE OF THE NEW COMPANY
STOCK UNDER THE FIRST ALTERNATIVE, IT IS TO DISPOSE OF THE NEW COMPANY
STOCK "BY ONE OR MORE SALES TO THE PUBLIC."  AT SUCH PUBLIC OFFERING NO
EL PASO OFFICER OR DIRECTOR AND NO OWNER OF EL PASO'S CAPITAL STOCK, IN
EXCESS OF ONE-HALF OF ONE PERCENT OF THE TOTAL SHARES OUTSTANDING,
SHALL BE PERMITTED TO PURCHASE NEW COMPANY STOCK.  (FN6) 

THUS THE EL PASO-PACIFIC NORTHWEST COMBINATION WILL NOT BEGIN TO BE
SEVERED UNTIL THE REGULATORY APPROVALS HAVE BEEN OBTAINED.  COMPLETE
DIVESTITURE IS NOT REQUIRED UNTIL THREE YEARS AFTER THE TRANSFER OF
ASSETS.  AN EARLIER DIVESTITURE IS PERMISSIBLE, BUT DIVESTITURE IS
MANDATORY ONLY AFTER THREE YEARS.  DURING THE INTERREGNUM BETWEEN THE
ENTRY OF THE DECREE AND THE REGULATORY APPROVALS, AND BETWEEN THE
TRANSFER OF ASSETS AND EL PASO'S EVENTUAL DISPOSITION OF THE NEW
COMPANY STOCK, EL PASO WILL CONTINUE TO REAP THE BENEFITS OF THE
ILLEGAL COMBINATION.  MOREOVER, PRIOR TO THE EVENTUAL DISPOSITION OF
THE NEW COMPANY STOCK, ALL THE STOCK IS TO BE VOTED BY THE NEW
COMPANY'S CHIEF EXECUTIVE.  THE CHIEF EXECUTIVE IS TO BE APPROVED BY EL
PASO, AND EL PASO IS THE BENEFICIAL OWNER OF THE STOCK TO BE VOTED BY
HIM.  EVEN THOUGH THE CHIEF EXECUTIVE IS SUBJECT TO THE ULTIMATE
CONTROL AND SUPERVISION OF THE DISTRICT COURT, THERE IS DANGER THAT HE
MAY VOTE THE NEW COMPANY STOCK IN A MANNER CALCULATED TO PERPETUATE THE
VERY CONDITIONS WHICH LED US TO ORDER SEVERANCE OF THE ILLEGAL
COMBINATION. 

EVEN AFTER THE MANDATORY DISPOSITION OF THE NEW COMPANY STOCK THERE
IS CONSIDERABLE DANGER THAT EL PASO INTERESTS MAY END UP CONTROLLING
THE NEW COMPANY.  THE DECREE, TO BE SURE, PROVIDES THAT NEITHER EL PASO
OFFICERS AND DIRECTORS NOR OWNERS OF MORE THAN ONE-HALF OF ONE PERCENT
OF EL PASO STOCK SHALL PURCHASE NEW COMPANY STOCK AT A PUBLIC
OFFERING.  BUT THE DECREE DOES NOT PROHIBIT MEMBERS OF THE FAMILIES OF
SUCH PROHIBITED PURCHASERS FROM OBTAINING NEW COMPANY STOCK.  FURTHER,
UNDER THE TERMS OF THE DECREE, IT WOULD BE POSSIBLE FOR A GROUP OF EL
PASO STOCKHOLDERS, EACH WITH LESS THAN ONE-HALF OF ONE PERCENT OF EL
PASO STOCK, TO ACQUIRE AT THE INITIAL PUBLIC OFFERING ENOUGH NEW
COMPANY STOCK SUBSTANTIALLY TO INFLUENCE OR EVEN TO DOMINATE THE NEW
COMPANY.  OR, SUCH A GROUP COULD COMBINE WITH THE FAMILIES OF
PROHIBITED PURCHASERS IN ORDER TO CONTROL THE NEW COMPANY.  AFTER THE
EXCHANGE OR PUBLIC OFFERING, THERE IS NO RESTRICTION ON THE NUMBER OF
NEW COMPANY SHARES EL PASO SHAREHOLDERS MAY ACQUIRE.  THUS, THERE IS A
DANGER THAT MAJOR EL PASO STOCKHOLDERS MAY, SUBSEQUENT TO THE EXCHANGE
OR PUBLIC OFFERING, PURCHASE LARGE BLOCKS OF NEW COMPANY STOCK AND
OBTAIN EFFECTIVE CONTROL.  THUS, THERE HAS BEEN NO STUDIED ATTEMPT TO
ENSURE THE SWIFT SEVERANCE OF THE ILLEGAL COMBINATION OR TO MAKE SURE
THAT THE NEW COMPANY'S STOCK DOES NOT END UP CONTROLLED BY EL PASO
INTERESTS.  DISPOSITION OF ALL OF THE STOCK WITH ALL CONVENIENT SPEED
IS NECESSARY AND CONDITIONS MUST BE IMPOSED TO MAKE SURE THAT EL PASO
INTERESTS DO NOT ACQUIRE A CONTROLLING INTEREST.  FOR IF THEY DO, THE
NEW COMPANY MIGHT WELL BE ONLY EL PASO UNDER THE MASQUERADE OF A
BEARD. 

THE PROPOSED DECREE BYPASSES COMPLETELY THE PROSPECT OF AN OUTRIGHT
PURCHASE OF THE ASSETS OF THE NEW COMPANY OR ITS STOCK BY OUTSIDE
INTERESTS.  TWO PURCHASERS APPARENTLY ARE ANXIOUS AND EAGER; AND BEFORE
THE UNITED STATES KNUCKLED UNDER TO EL PASO AND "SETTLED" THIS
LITIGATION, IT REPRESENTED TO THE DISTRICT COURT THAT A "SALE TO A
THIRD PARTY IS BOTH A DESIRABLE AND POSSIBLE ALTERNATIVE TO THE EL PASO
PLAN."  NO ALTERNATIVE OF THAT KIND WAS CHOSEN.  EL PASO CARRIED THE
DAY, OBTAINED A DECREE THAT PROMISES TO PERPETUATE RATHER THAN
TERMINATE THIS UNLAWFUL MERGER, AND THAT THREATENS TO TURN LOOSE ON THE
PUBLIC A NEW COMPANY UNABLE TO MAINTAIN THE COMPETITIVE ROLE THAT
PACIFIC NORTHWEST FILLED BEFORE THIS ILLEGAL TRANSACTION TOOK PLACE. 

THE CONVENIENCE OF EL PASO WOULD BE THE EASIER CHOICE.  THE
ENFORCEMENT OF OUR MANDATE AND SEC 7 OF THE CLAYTON ACT IS THE HARDER
ONE; BUT THAT IS THE CRITERION WE FOLLOW. 

THE EVIL WITH WHICH THE PROPOSED DECREE IS PERMEATED REFLECTS THE
ATTITUDE OR PHILOSOPHY OF THE DISTRICT COURT WHICH WAS FRANKLY STATED
AFTER OUR REMAND AS FOLLOWS: 

"THE COURT:  YOU SEE, WHAT THIS PLAN PROPOSES IS A DIVISION OF THE
COUNTRY, A DIVISION OF THE MARKET, A DIVISION OF THE RESERVES, ONE AREA
TO NEW COMPANY AND ANOTHER AREA TO EL PASO.  THAT'S WHAT THE ROOT OF
THIS PLAN IS. 

"NOW, IF YOU'RE GOING TO GET NEW COMPANY DOWN HERE IN COMPETITION IN
SOUTHERN CALIFORNIA FROM THE SAN JUAN BASIN, YOU'D UPSET THE WHOLE
SCHEME.  TO EVEN THAT SITUATION UP, YOU'RE GOING TO HAVE TO PUT EL PASO
UP IN THE NORTHWEST IN COMPETITION THERE; AND THAT'S A KIND OF
RIDICULOUS THING - LONG PIPELINES FROM THESE VARIOUS SOURCES. 

"IT SEEMS TO ME TO MAKE A LOT OF SENSE THAT NEW COMPANY OPERATING IN
THE NORTHWEST FROM VERY MUCH CLOSER CANADIAN RESERVES, AND NORTHWEST
RESERVES, AND EL PASO DOWN IN THE SOUTHWEST, WITH RESERVES IN THE SAN
JUAN BASIN, SERVING THE SOUTHERN CALIFORNIA AREA, AMONG SOME OTHER
AREAS.  THAT SEEMS TO ME TO MAKE A LOT OF SENSE." 

THE PROPOSED DECREE IN ITS VARIOUS RAMIFICATIONS DOES PRECISELY
THAT.  IT THEREFORE DOES THE OPPOSITE OF WHAT OUR PRIOR OPINION AND
MANDATE COMMANDED.  ONCE MORE, AND NEARLY THREE YEARS AFTER WE FIRST
SPOKE, WE REVERSE AND REMAND, WITH DIRECTIONS THAT THERE BE DIVESTITURE
WITHOUT DELAY AND THAT THE CHIEF JUDGE OF THE CIRCUIT OR THE JUDICIAL
COUNCIL OF THE CIRCUIT (28 U.S.C. SEC 332) ASSIGN A DIFFERENT DISTRICT
JUDGE TO HEAR THE CASE.  CF. UNITED STATES V. HATAHLEY, 257 F.2D 920,
926, AND ITS SEQUEL, UNITED STATES V. RITTER, 273 F. D 30, 32;
OCCIDENTAL PETROLEUM CORP. V. CHANDLER, 303 F.2D 55, 57; TEXACO, INC.
V. CHANDLER, 354 F.2D 655, 657.  REVERSED. 

FN1  CALIFORNIA V. FEDERAL POWER COMMISSION, 369 U.S. 482, INVOLVED
ANOTHER ASPECT OF THE SAME MERGER; AND WE HELD THAT THE COMMISSION
SHOULD NOT HAVE APPROVED IT UNTIL THE DISTRICT COURT DECIDED WHETHER IT
VIOLATED SEC 7 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. SEC 18. 

FN2  SEE BOARD OF COMM'RS V. BERNARDIN, 74 F.2D 809, 816; DOWDY V.
HAWFIELD, 88 U.S. APP. D.C. 241, 242, 189 F.2D 637, 638. 

FN3  IN 1966 THE ADVISORY COMMITTEE WHEN MAKING A REVISION OF RULE
24(A) SAID: 

"RULE 24(A)(3) AS AMENDED IN 1948 PROVIDED FOR INTERVENTION OF RIGHT
WHERE THE APPLICANT ESTABLISHED THAT HE WOULD BE ADVERSELY AFFECTED BY
THE DISTRIBUTION OR DISPOSITION OF PROPERTY INVOLVED IN AN ACTION TO
WHICH HE HAD NOT BEEN MADE A PARTY.  SIGNIFICANTLY, SOME DECIDED CASES
VIRTUALLY DISREGARDED THE LANGUAGE OF THIS PROVISION.  THUS PROFESSOR
MOORE STATES:  'THE CONCEPT OF A FUND HAS BEEN APPLIED SO LOOSELY THAT
IT IS POSSIBLE FOR A COURT TO FIND A FUND IN ALMOST ANY IN PERSONAM
ACTION.'  4 MOORE'S FEDERAL PRACTICE PARA 24.09(3), AT 55 (2D ED.
1962), AND SEE, E.G., FORMULABS, INC. V. HARTLEY PEN CO., 275 F.2D 52
(9TH CIR. 1960).  THIS DEVELOPMENT WAS QUITE NATURAL, FOR RULE 24(A)(3)
WAS UNDULY RESTRICTED.  IF AN ABSENTEE WOULD BE SUBSTANTIALLY AFFECTED
IN A PRACTICAL SENSE BY THE DETERMINATION MADE IN AN ACTION, HE SHOULD,
AS A GENERAL RULE, BE ENTITLED TO INTERVENE, AND HIS RIGHT TO DO SO
SHOULD NOT DEPEND ON WHETHER THERE IS A FUND TO BE DISTRIBUTED OR
OTHERWISE DISPOSED OF.  INTERVENTION OF RIGHT IS HERE SEEN TO BE A KIND
OF COUNTERPART TO RULE 19(A)(2)(I) ON JOINDER OF PERSONS NEEDED FOR A
JUST ADJUDICATION: WHERE, UPON MOTION OF A PARTY IN AN ACTION, AN
ABSENTEE SHOULD BE JOINED SO THAT HE MAY PROTECT HIS INTEREST WHICH AS
A PRACTICAL MATTER MAY BE SUBSTANTIALLY IMPAIRED BY THE DISPOSITION OF
THE ACTION, HE OUGHT TO HAVE A RIGHT TO INTERVENE IN THE ACTION ON HIS
OWN MOTION.  SEE LOUISELL & HAZARD, PLEADING AND PROCEDURE:  STATE AND
FEDERAL 749-50 (1962)."  4 MOORE, FEDERAL PRACTICE (1966 SPEC. SUPP.),
C. 24, PP. 1-2. 

FN4  FOR EXAMPLE, ONE CONTRACT RELATES TO RECIPROCAL GAS GATHERING
BETWEEN THE NEW COMPANY AND EL PASO IN THE SAN JUAN BASIN.  PRIOR TO
THE MERGER EL PASO AND PACIFIC NORTHWEST ENTERED INTO A CONTRACT
PROVIDING THAT THEY WOULD DEVELOP GATHERING LINES IN THE BASIN
COOPERATIVELY, AND THAT WHICHEVER COMPANY MADE GREATER USE OF THE
OTHER'S GATHERING LINES WOULD PAY A GATHERING CHARGE OF 1.375 CENTS PER
MCF.  OF EXTRA GAS.  EL PASO DID MUCH MORE GATHERING FOR PACIFIC
NORTHWEST THAN PACIFIC NORTHWEST DID FOR EL PASO.  THE PROPOSED
AGREEMENT INCREASES THE GATHERING CHARGE TO 4.5 CENTS.  THE INTERVENORS
CLAIM THAT THE INCREASED RATE WILL SUBSTANTIALLY INCREASE THE NEW
COMPANY'S COSTS AND IMPAIR ITS ABILITY TO COMPETE. 

FN5  WE ARE INFORMED THAT THE NEW COMPANY'S CHIEF EXECUTIVE HAS BEEN
APPROVED AND THAT THE NEW COMPANY HAS APPLIED TO THE FEDERAL POWER
COMMISSION FOR CERTIFICATION.  THE FPC PROCEEDINGS HAVE BEEN CONTINUED
UNTIL THIS COURT HAS DECIDED THIS APPEAL. 

FN6  EL PASO IS ALSO ENJOINED FROM HAVING AS AN OFFICER OR DIRECTOR
ANY PERSON WHO IS ALSO AN OFFICER, DIRECTOR, OR EMPLOYEE OF THE NEW
COMPANY OR WHO OWNS ANY CAPITAL STOCK OF THE NEW COMPANY OR WHOSE
IMMEDIATE FAMILY OWNS MORE THAN ONE-TENTH OF ONE PERCENT OF THE STOCK
OF THE NEW COMPANY. 

MR. JUSTICE WHITE AND MR. JUSTICE FORTAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE QUESTION PRESENTED BY THESE APPEALS, AND THE ONLY QUESTION, IS
WHETHER THE DISTRICT COURT ERRED IN DENYING THE APPELLANTS' MOTIONS TO
INTERVENE AS PARTIES.  BECAUSE I THINK THE COURT'S ANSWER TO THAT
QUESTION IS WRONG, AND BECAUSE I THINK THE COURT HAS GONE FURTHER
ASTRAY IN UNDERTAKING TO ADDRESS ITSELF TO ISSUES WHICH ARE NOT HERE
FOR ADJUDICATION, I RESPECTFULLY DISSENT. 

INTERVENTION OF RIGHT IS GOVERNED BY FEDERAL RULE OF CIVIL PROCEDURE
24(A).  AT THE TIME THE DISTRICT COURT PASSED ON APPELLANTS' MOTIONS TO
INTERVENE,  (FN1)  THAT RULE PROVIDED AS FOLLOWS: 

"RULE 24.  INTERVENTION. 

"(A)  INTERVENTION OF RIGHT.  UPON TIMELY APPLICATION ANYONE SHALL BE
PERMITTED TO INTERVENE IN AN ACTION:  (1) WHEN A STATUTE OF THE UNITED
STATES CONFERS AN UNCONDITIONAL RIGHT TO INTERVENE; OR (2) WHEN THE
REPRESENTATION OF THE APPLICANT'S INTEREST BY EXISTING PARTIES IS OR
MAY BE INADEQUATE AND THE APPLICANT IS OR MAY BE BOUND BY A JUDGMENT IN
THE ACTION; OR (3) WHEN THE APPLICANT IS SO SITUATED AS TO BE ADVERSELY
AFFECTED BY A DISTRIBUTION OR OTHER DISPOSITION OF PROPERTY WHICH IS IN
THE CUSTODY OR SUBJECT TO THE CONTROL OR DISPOSITION OF THE COURT OR AN
OFFICER THEREOF." 

I GATHER IT IS COMMON GROUND THAT NEITHER 24(A)(1) NOR 24(A)(2)
APPLIES TO THESE CASES.  NO APPELLANT CLAIMS ANY STATUTORY RIGHT TO
INTERVENE UNDER 24(A)(1).  AND IT IS CLEAR THAT NO APPELLANT HAS ANY
RIGHT TO INTERVENE UNDER 24(A)(2), FOR IN ORDER TO INTERVENE UNDER THAT
PROVISION, THE APPLICANT FOR INTERVENTION MUST SHOW THAT HE "MAY BE
BOUND" BY THE JUDGMENT IN THE GOVERNMENT'S ACTION IN A RES JUDICATA
SENSE.  SAM FOX PUBLISHING CO. V. UNITED STATES, 366 U.S. 683; SUTPHEN
ESTATES, INC. V. UNITED STATES, 342 U.S. 19.  SEE CREDITS COMMUTATION
CO. V. UNITED STATES, 177 U.S. 311.  AND IT IS SETTLED THAT THE
JUDGMENT IN A GOVERNMENT SUIT HAS NO RES JUDICATA EFFECT ON PRIVATE
ANTITRUST CLAIMS.  SAM FOX PUBLISHING CO. V. UNITED STATES, SUPRA.

THE COURT, HOWEVER, FINDS THAT THE STATE OF CALIFORNIA AND SOUTHERN
CALIFORNIA EDISON CO. HAVE AN ABSOLUTE RIGHT TO INTERVENE UNDER
24(A)(3).  I DISAGREE FOR SEVERAL REASONS. 

ANALYSIS OF THE RULE'S PROPER SCOPE MUST BEGIN WITH AN HISTORICAL
EXAMINATION OF INTERVENTION PRACTICE, FOR, AS THE COURT HAS STATED, THE
RULE CONSTITUTES A "CODIFICATION OF GENERAL DOCTRINES OF
INTERVENTION."  MISSOURI-KANSAS PIPE LINE CO. V. UNITED STATES, 312
U.S. 502, 508.  (FN2) INTERVENTION TO ASSERT AN INTEREST IN PROPERTY
WITHIN THE COURT'S CONTROL OR CUSTODY DERIVES FROM THE ENGLISH DOCTRINE
OF APPEARANCE PRO INTERESSE SUO.  WHEN A COURT ACQUIRED IN REM
JURISDICTION OVER PROPERTY, BY ADMIRALTY LIBEL, SEQUESTRATION,
RECEIVERSHIP, OR OTHER PROCESS, A PERSON CLAIMING TITLE OR SOME OTHER
LEGAL OR EQUITABLE INTEREST WAS ALLOWED TO COME IN TO ASSERT HIS CLAIM
TO THE PROPERTY.  OTHERWISE, HE WOULD HAVE BEEN SUBJECTED TO THE
OBVIOUS INJUSTICE OF HAVING HIS CLAIM ERASED OR IMPAIRED BY THE COURT'S
ADJUDICATION WITHOUT EVER BEING HEARD.  ELEMENTS OF THIS PROCEDURE WERE
GRADUALLY ASSIMILATED IN THIS COUNTRY, E.G., PENNOCK V. COE, 23 HOW. 
117, AND PROVIDED THE FOUNDATION FOR INTERVENTION DOCTRINE IN THE
FEDERAL COURTS.  (FN3) 

VARIOUS GENERALIZATIONS ABOUT THE NATURE OF THE PROPERTY INTEREST
THAT WILL SUPPORT INTERVENTION OF RIGHT UNDER THIS DOCTRINE HAVE BEEN
ATTEMPTED.  THIS COURT HAS STATED THAT THE REQUISITE INTEREST MUST BE
"OF SUCH A DIRECT AND IMMEDIATE CHARACTER THAT THE INTERVENOR WILL
EITHER GAIN OR LOSE BY THE DIRECT LEGAL OPERATION AND EFFECT OF THE
JUDGMENT."  SMITH V. GALE, 144 U.S. 509, 518.  (FN4) OTHER COURTS HAVE
SPOKEN OF "A LEGAL INTEREST AS DISTINGUISHED FROM INTERESTS OF A
GENERAL AND INDEFINITE CHARACTER," RADFORD IRON CO. V. APPALACHIAN
ELECTRIC POWER CO., 62 F.2D 940, 942 (C.A. 4TH CIR.), CERT. DENIED, 289
U.S. 748, OR "ONE THAT IS KNOWN AND PROTECTED BY THE LAW, SUFFICIENT
AND OF THE TYPE TO BE DENOMINATED A LIEN, LEGAL OR EQUITABLE," GROSS V.
MISSOURI & A. RY. CO., 74 F. SUPP. 242, 249 (D.C.W.D. ARK.).  THESE
FORMULATIONS ARE OF LIMITED USE IN DECIDING PARTICULAR CASES.   MORE
ILLUMINATING ARE EXAMPLES OF PARTICULAR INTERESTS WHICH HAVE BEEN HELD
TO SUPPORT INTERVENTION OF RIGHT UNDER THE ESTABLISHED PRACTICE.  THESE
HAVE INCLUDED THE CLAIM OF OWNERSHIP IN ATTACHED PROPERTY, (FN5) THE
CLAIM OF A PART OWNER TO PERSONAL PROPERTY BEING FORECLOSED UNDER A
MORTGAGE, (FN6) A MORTGAGE LIEN ON A LEASEHOLD INTEREST SUBJECTED TO
FORFEITURE, (FN7) AND THE CLAIM OF THE PURCHASER OF LAND INVOLVED IN
FORECLOSURE PROCEEDINGS AGAINST THE SELLER.  (FN8)  INTERESTS LIKE
THESE HAVE CONTINUED TO PROVIDE A FAMILIAR BASIS FOR INTERVENTION OF
RIGHT SINCE THE PROMULGATION OF RULE 24(A)(3).  (FN9) 

THE OTHER TRADITIONAL BASIS FOR INTERVENTION UNDER 24(A)(3) DERIVES
FROM INTERPLEADER PRACTICE; WHEN A NUMBER OF PERSONS POSSESS CLAIMS TO
A FUND WHICH ARE OR MAY BE MUTUALLY EXCLUSIVE, INTERVENTION IS ALLOWED
A CLAIMANT.  THUS, IN OLIVER V. UNITED STATES, 156 F.2D 281 (C.A.  8TH
CIR.), THE UNITED STATES HAD ACQUIRED CERTAIN LAND AND DEPOSITED THE
PURCHASE PRICE IN COURT TO BE DIVIDED AMONG THE VARIOUS OWNERS.  A
TITLE INSURANCE COMPANY WHICH ASSERTED A CLAIM TO THE PROCEEDS, BASED
ON SERVICES RENDERED TO THE SELLERS, WAS ALLOWED TO INTERVENE.  (FN10) 

UNDER RULE 24(A)(3) THE FEDERAL COURTS HAVE SOMETIMES ALLOWED
INTERVENTION EVEN THOUGH THE INTEREST LIKELY TO BE "ADVERSELY AFFECTED"
WAS NOT ONE THAT WOULD BE RECOGNIZED UNDER TRADITIONAL INTERPRETATIONS
OF THE PRO INTERESSE SUO OR INTERPLEADER TYPES OF INTERVENTION.  A
REPRESENTATIVE CASE IS FORMULABS, INC. V. HARTLEY PEN CO., 275 F.2D 52
(C.A. 9TH CIR.), CERT. DENIED, 363 U.S. 830.   THE APPLICANT FOR
INTERVENTION HAD LICENSED A SECRET MANUFACTURING PROCESS TO ONE OF THE
PARTIES, AND THE OTHER PARTY WAS SEEKING TO APPLY DISCOVERY TO THE
PROCESS.  FINDING THAT THE TRADE SECRET WAS "PROPERTY" SUBJECT TO THE
COURT'S CONTROL AND THAT THE SECRECY WHICH WAS THE HEART OF THE
APPLICANT'S INTEREST IN THAT PROPERTY MIGHT BE TOTALLY DESTROYED, THE
COURT ALLOWED INTERVENTION UNDER 24(A)(3). 

BUT THE CLAIMS OF CALIFORNIA AND THE SOUTHERN CALIFORNIA EDISON CO.
IN THESE CASES LIE FAR BEYOND THE REACH OF EVEN THE MOST IMAGINABLE
CONSTRUCTION OF 24(A)(3).  TO BE SURE, THE ASSETS OF EL PASO ARE
"PROPERTY WHICH IS IN THE CUSTODY OR SUBJECT TO THE CONTROL OR
DISPOSITION OF THE COURT" FOR PURPOSES OF THE RULE.  SUTPHEN ESTATES,
INC. V. UNITED STATES, 342 U.S. 19.  BUT THE "INTEREST" IN THESE ASSETS
RELIED UPON BY THE APPELLANTS TO JUSTIFY INTERVENTION IS MERELY THEIR
PREFERENCE THAT CERTAIN OF THE ASSETS, PARTICULARLY THE SAN JUAN BASIN
RESERVES, END UP IN THE HANDS OF NEW COMPANY RATHER THAN EL PASO, ON
THE THEORY THAT SUCH AN ALLOCATION MAY BE CONDUCIVE TO GREATER GAS
COMPETITION IN CALIFORNIA.  THESE GENERAL AND INDEFINITE INTERESTS DO
NOT EVEN REMOTELY RESEMBLE THE DIRECT AND CONCRETE STAKE IN LITIGATION
REQUIRED FOR INTERVENTION OF RIGHT.  THE COURT'S DECISION NOT ONLY
OVERTURNS ESTABLISHED GENERAL PRINCIPLES OF INTERVENTION, BUT, AS WILL
BE SHOWN BELOW IN DETAIL, ALSO REPUDIATES A LARGE AND LONG-ESTABLISHED
BODY OF DECISIONS SPECIFICALLY, AND CORRECTLY, DENYING INTERVENTION IN
GOVERNMENT ANTITRUST LITIGATION. 

THIS COURT IS ALL TOO FAMILIAR WITH THE FACT THAT ANTITRUST
LITIGATION IS INHERENTLY PROTRACTED.  INDEED, IT IS JUST SUCH DELAY
WHICH SEEMS TO SO CONCERN THE COURT IN THIS CASE.  BUT NOTHING COULD BE
BETTER CALCULATED TO CONFUSE AND PROLONG ANTITRUST LITIGATION THAN THE
RULE WHICH THE COURT TODAY ANNOUNCES.  THE ENTRANCE OF ADDITIONAL
PARTIES INTO ANTITRUST SUITS CAN ONLY SERVE TO MULTIPLY TRIAL EXHIBITS
AND TESTIMONY, AND FURTHER CONFOUND THE ATTEMPT TO BRING ORDER OUT OF
COMPLICATED ECONOMIC ISSUES.  FOR THESE REASONS, FEDERAL COURTS HAVE
BEEN MOST RELUCTANT TO GRANT INTERVENTION UNDER 24(A)(3) EVEN IN
PRIVATE ANTITRUST LITIGATION.  FOR EXAMPLE, IN COMMONWEALTH EDISON CO.
V. ALLIS-CHALMERS MFG. CO., 315 F.2D 564 (C.A. 7TH CIR.), CERT. DENIED,
375 U.S. 834, THE STATE OF ILLINOIS, REPRESENTING CONSUMERS' INTERESTS
IN A POSSIBLE RATE REBATE, WAS DENIED INTERVENTION IN A SUIT BROUGHT BY
A UTILITY CHARGING EQUIPMENT MANUFACTURERS WITH PRICE FIXING.  (FN11) 

THE REASONS FOR DENYING INTERVENTION ARE EVEN STRONGER WHEN
INTERVENTION IS SOUGHT IN AN ANTITRUST SUIT BROUGHT BY THE GOVERNMENT. 
TO THE EXTENT THAT THE WOULD-BE INTERVENOR SEEKS TO PRESS HIS OWN
PRIVATE ANTITRUST CLAIMS AGAINST THE DEFENDANT, INTERVENTION MUST BE
DENIED BECAUSE CONGRESS HAS CAREFULLY PROVIDED SEPARATE STATUTORY
PROCEDURES FOR PRIVATE AND PUBLIC ANTITRUST LITIGATION.  (FN12)  AS THE
COURT OBSERVED IN UNITED STATES V. BORDEN CO., 347 U.S. 514, 518-519,
THE THRUST OF THE CLAYTON ACT "IS SHARPLY TO DISTINGUISH BETWEEN
GOVERNMENT SUITS, EITHER CRIMINAL OR CIVIL, AND PRIVATE SUITS FOR
INJUNCTIVE RELIEF OR FOR TREBLE DAMAGES.  DIFFERENT POLICY
CONSIDERATIONS GOVERN EACH OF THESE.  THEY MAY PROCEED SIMULTANEOUSLY
OR IN DISREGARD OF EACH OTHER."  (FN13)  THE COURT HAS ACCORDINGLY
APPROVED THE UNQUESTIONABLY SOUND POLICY OF NOT PERMITTING PRIVATE
ANTITRUST PLAINTIFFS TO PRESS THEIR CLAIMS AGAINST ALLEGED VIOLATORS IN
THE SAME SUIT AS THE GOVERNMENT."  SAM FOX PUBLISHING CO. V. UNITED
STATES, 366 U.S. 683, AT 693.  A FORTIORI, INTERVENTION IS IMPROPER
WHEN A PRIVATE PARTY APPEARS IN ORDER TO VINDICATE HIS THEORY OF THE
PUBLIC INTEREST IN AN ACTION BROUGHT BY THE GOVERNMENT.  FOR AS THE
COURT HAS CONSISTENTLY RECOGNIZED, IT IS THE "UNITED STATES, WHICH MUST
ALONE SPEAK FOR THE PUBLIC INTEREST" IN ANTITRUST LITIGATION.  BUCKEYE
COAL & RY. CO. V. HOCKING VALLEY RY. CO., 269 U.S. 42, 49.  (FN14)  THE
APPELLANTS HERE SEEK INTERVENTION TO PRESS THEIR OWN VERSION OF WHAT
THE PUBLIC INTEREST IN GAS COMPETITION IN CALIFORNIA REQUIRES.  BUT THE
DETERMINATION OF WHAT THE PUBLIC INTEREST REQUIRES IS THE STATUTORY
DUTY AND RESPONSIBILITY OF THE GOVERNMENT.  THE LAW EXPLICITLY REQUIRES
THAT SUITS BROUGHT BY THE GOVERNMENT FOR INJUNCTIVE RELIEF SHALL BE
"UNDER THE DIRECTION OF THE ATTORNEY GENERAL."  15 U.S.C. SECS. 4 AND
25.  THAT STATUTORY COMMAND IS VIOLATED WHEN PRIVATE PARTIES ARE
ALLOWED TO INTERVENE AND CONTROL PUBLIC SUITS.  THE GOVERNMENT'S
DISCHARGE OF ITS DUTIES WOULD BE COMPLETELY UNDERMINED IF ITS ANTITRUST
LITIGATION WERE CLUTTERED WITH A MYRIAD OF PRIVATE VOLUNTEERS, ALL
PRESSING THEIR OWN PARTICULAR INTERPRETATIONS OF THE "PUBLIC INTEREST"
AGAINST THE DEFENDANT, THE GOVERNMENT, AND EACH OTHER. 

IT HAS BEEN THE CONSISTENT POLICY OF THIS COURT TO DENY INTERVENTION
TO A PERSON SEEKING TO ASSERT SOME GENERAL PUBLIC INTEREST IN A SUIT IN
WHICH A PUBLIC AUTHORITY CHARGED WITH THE VINDICATION OF THAT INTEREST
IS ALREADY A PARTY.  THUS, IN IN RE ENGELHARD & SONS CO., 231 U.S. 646,
INTERVENTION WAS DENIED TO A SUBSCRIBER SEEKING TO ENTER A SUIT BETWEEN
A MUNICIPALITY AND A TELEPHONE UTILITY INVOLVING THE VALIDITY OF THE
CITY'S RATE ORDINANCE AND THE DISPOSITION OF RATE OVERCHARGES. 
SIMILARLY, IN CITY OF NEW YORK V. CONSOLIDATED GAS CO. OF NEW YORK, 253
U.S. 219, AND CITY OF NEW YORK V. NEW YORK TELEPHONE CO., 261 U.S. 312,
THE CITY OF NEW YORK WAS NOT ALLOWED TO INTERVENE ON BEHALF OF CONSUMER
RESIDENTS OF THE CITY IN LITIGATION BETWEEN STATE AUTHORITIES AND
PUBLIC UTILITIES OVER THE VALIDITY OF STATE RATE REGULATION.  THE WISE
PRINCIPLE OF THOSE DECISIONS IS REFLECTED IN MANY OTHER FEDERAL CASES
DECIDED BOTH BEFORE AND AFTER THE ADOPTION OF RULE 24(A)(3).  (FN15) 

THE APPLICABILITY OF THIS PRINCIPLE TO INTERVENTION IN ANTITRUST
SUITS BROUGHT BY THE GOVERNMENT WAS EARLY RECOGNIZED BY THIS COURT.  EX
PARTE LEAF TOBACCO BOARD, 222 U.S. 578, DENIED INTERVENTION TO
ENTERPRISES THAT SOLD TOBACCO TO DEFENDANTS IN AN ANTITRUST SUIT
BROUGHT BY THE GOVERNMENT.  FROM THAT TIME SINCE, WE HAVE CONSISTENTLY
REFUSED TO RECOGNIZE THE RIGHT TO INTERVENE IN GOVERNMENT ANTITRUST
SUITS.  (FN16)  ALLEN CALCULATORS, INC. V. NATIONAL CASH REGISTER CO.,
322 U.S. 137; PARTMAR CORP. V. UNITED STATES, 338 U.S. 804; WOMETCO
TELEVISION & THEATRE CO. V. UNITED STATES, 355 U.S. 40; WESTINGHOUSE
BROADCASTING CO. V. UNITED STATES, 364 U.S. 518, DISMISSING APPEAL FROM
186 F. SUPP. 776; SAM FOX PUBLISHING CO. V. UNITED STATES, SUPRA; BARDY
V. UNITED STATES, 371 U.S. 576.  (FN17)  AND WE HAVE UPHELD DENIAL OF
INTERVENTION TO A PRIVATE PARTY WHO CLAIMED THAT A DECREE NEGOTIATED
BETWEEN THE GOVERNMENT AND AN ANTITRUST DEFENDANT FAILED TO CARRY OUT
THE MANDATE OF THIS COURT.  BALL V. UNITED STATES, 338 U.S. 802. 

THE RESULTS WHICH FOLLOW FROM THE COURT'S REJECTION OF THE PRACTICAL
WISDOM EMBODIED IN THESE DECISIONS ARE APPARENT.  THERE WERE OVER 20
APPLICATIONS TO INTERVENE IN THE DECREE PROCEEDINGS BELOW.  THE COURT'S
CONSTRUCTION OF 24(A)(3) WOULD REQUIRE THE DISTRICT COURT TO GRANT MOST
IF NOT ALL OF THEM.  EL PASO GAS GOES TO MILLIONS OF CONSUMERS, AND
UNDER THE COURT'S DECISION ANY OR ALL OF THEM ARE ENTITLED TO INTERVENE
AS OF RIGHT.  AND THERE IS NOTHING IN THE COURT'S OPINION WHICH
SUGGESTS THAT THIS RIGHT TO INTERVENE IS LIMITED TO LITIGATION OVER
REMEDY.  IF CONSUMERS AND OTHERS HAVE AN INTEREST IN MAKING SURE THAT A
GOVERNMENT ANTITRUST DECREE MEETS THEIR STANDARDS OF EFFECTIVENESS,
THEY HAVE AN EVEN GREATER INTEREST IN INSURING THAT A VIOLATION IS
FOUND.  THUS THE COURT'S REASONING GIVES ANY CONSUMER A RIGHT TO
INTERVENE IN GOVERNMENT ANTITRUST LITIGATION AT THE VERY OUTSET.  THE
COURT INVITES A SCOPE OF INTERVENTION THAT WILL MAKE THE DELAYS IN THIS
CASE SEEM MERCIFULLY SHORT. 

THE COURT'S DECISION WOULD NOT BE OF SUCH CONCERN, NOR MERIT SO MUCH
DISCUSSION, IF IT WERE SIMPLY LIMITED TO 24(A)(3), A PROVISION WHICH
HAS BEEN SUPERSEDED.  BUT THE SAME APPROACH WHICH CREATES A RIGHT TO
INTERVENE FOR CALIFORNIA AND THE SOUTHERN CALIFORNIA EDISON CO. UNDER
THE OLD RULE 24(A)(3) APPEARS IN THE COURT'S CONSTRUCTION OF THE NEW
RULE 24, UNDER WHICH IT SAYS CASCADE HAS A RIGHT TO INTERVENE.  THE NEW
RULE 24(A)(2) REPLACES THE PREVIOUS RULE 24(A)(2) AND (3), AND PROVIDES
FOR INTERVENTION OF RIGHT: 

"WHEN THE APPLICANT CLAIMS AN INTEREST RELATING TO THE PROPERTY OR
TRANSACTION WHICH IS THE SUBJECT OF THE ACTION AND HE IS SO SITUATED
THAT THE DISPOSITION OF THE ACTION MAY AS A PRACTICAL MATTER IMPAIR OR
IMPEDE HIS ABILITY TO PROTECT THAT INTEREST, UNLESS THE APPLICANT'S
INTEREST IS ADEQUATELY REPRESENTED BY EXISTING PARTIES." 

THIS AND OTHER AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE
WERE PROMULGATED BY THIS COURT TO "TAKE EFFECT ON JULY 1, 1966, AND
...  GOVERN ALL PROCEEDINGS IN ACTIONS BROUGHT THEREAFTER AND ALSO IN
ALL FURTHER PROCEEDINGS IN ACTIONS THEN PENDING  ...  ."  383 U.S.
1031.  SINCE THE DISTRICT COURT DENIED CASCADE'S MOTION TO INTERVENE IN
1965, BEFORE THE EFFECTIVE DATE OF THE AMENDED RULE, THE NEW RULE WAS
INAPPLICABLE TO CASCADE'S MOTION.  (FN18)  BUT EVEN IF THE NEW RULE
WERE APPLICABLE, NEITHER CASCADE NOR THE OTHER APPELLANTS COULD CLAIM
INTERVENTION OF RIGHT UNDER IT. 

THE PURPOSE OF THE REVISION WAS TO REMEDY CERTAIN LOGICAL
SHORTCOMINGS IN THE CONSTRUCTION OF THE FORMER 24(A)(2), SEE SAM FOX
PUBLISHING CO. V. UNITED STATES, SUPRA, AND TO GIVE RECOGNITION TO
DECISIONS SUCH AS FORMULABS, INC. V. HARTLEY PEN CO., SUPRA, WHICH HAD
EXPANDED INTERVENTION UNDER THE FORMER 24(A)(3) BEYOND THE STRICT PRO
INTERESSE SUO MODEL IT EMBODIED.  (FN19)  BUT AN APPLICANT IS STILL
REQUIRED TO HAVE AN "INTEREST" IN THE LITIGATION SUFFICIENTLY DIRECT
AND IMMEDIATE TO JUSTIFY HIS ENTRY AS A MATTER OF RIGHT.  THE REMOTE
AND GENERAL CONCERNS THAT APPELLANTS STATE OF CALIFORNIA AND SOUTHERN
CALIFORNIA EDISON CO. HAVE WITH THIS GOVERNMENT SUIT HAVE ALREADY BEEN
DISCUSSED.  AND CASCADE'S INTEREST IS EVEN MORE INSUBSTANTIAL.  WHILE
IT PURCHASES GAS FROM EL PASO IN OREGON, IT SEEKS INTERVENTION TO
VINDICATE GAS COMPETITION IN CALIFORNIA.  (FN20)  EVEN IF IT SHOULD BE
THOUGHT THAT THE AMENDED RULE MIGHT ENCOMPASS SUCH REMOTE INTERESTS IN
SOME CONCEIVABLE CIRCUMSTANCES, IT IS CLEAR THAT SUCH INTERESTS MAY
NEVER JUSTIFY INTERVENTION OF RIGHT IN PUBLIC ANTITRUST LITIGATION,
WHERE CONGRESS HAS CAREFULLY ENTRUSTED THE CONDUCT OF GOVERNMENT SUITS
TO THE "DIRECTION OF THE ATTORNEY GENERAL."  BUT EVEN IF CASCADE SHOULD
PASS THIS HURDLE, IT WOULD ALSO HAVE TO SHOW THAT THERE WAS A FAILURE
OF "ADEQUATE REPRESENTATION" BY THE JUSTICE DEPARTMENT IN THIS CASE. 

THE COURT STATES THAT THE GOVERNMENT "KNUCKLED UNDER TO EL PASO" AND
HAS "FALLEN FAR SHORT OF REPRESENTING" CASCADE'S INTEREST.  SINCE THE
INTEREST THAT CASCADE CLAIMS TO BE REPRESENTING IS THAT OF THE PUBLIC,
THE COURT IS CHARGING THE JUSTICE DEPARTMENT WITH DERELICTION OF DUTY
OR SERIOUS INCOMPETENCE.  I REGARD THIS CHARGE AS WHOLLY UNJUSTIFIED. 
THE GOVERNMENT DID SETTLE FOR LESS THAN ALL THE RELIEF THAT IT SOUGHT
AT THE OUTSET.  BUT THIS IS A WHOLLY FAMILIAR PHENOMENON OF
NEGOTIATION.  BARGAINING FOR CONSENT DECREES AND STIPULATED REMEDIES IS
A NORMAL AND NECESSARY ELEMENT IN THE GOVERNMENT'S ENFORCEMENT OF THE
ANTITRUST LAWS.  MOREOVER, IT IS PERFECTLY CONCEIVABLE THAT IN THE
COURSE OF NEGOTIATIONS THE GOVERNMENT MAY BECOME AWARE OF ERRORS IN ITS
OPENING POSITION.  IF, AS THE COURT'S OPINION SEEMS TO SUGGEST, THE
GOVERNMENT IS REQUIRED TO PRESS ITS ORIGINAL NEGOTIATING POSITION
UNCEASINGLY AND TO THE BITTER END, THE NUMBER OF CASES WHICH THE
GOVERNMENT CAN AFFORD TO UNDERTAKE WILL BE SHARPLY REDUCED, AND THE
ENFORCEMENT OF THE ANTITRUST LAWS WILL ULTIMATELY BECOME LESS
EFFECTIVE.  AND OF COURSE THE DELAY IN ANTITRUST LITIGATION, WHICH SO
CONCERNS THE COURT, WILL MARKEDLY INCREASE. 

THE COURT'S STANDARD OF "ADEQUATE REPRESENTATION" COMES DOWN TO THIS:
IF, AFTER THE EXISTING PARTIES HAVE SETTLED A CASE OR PURSUED
LITIGATION TO THE END, SOME VOLUNTEER COMES ALONG WHO DISAGREES WITH
THE PARTIES' ASSESSMENT OF THE ISSUES OR THE WAY THEY HAVE PURSUED
THEIR RESPECTIVE INTERESTS, INTERVENTION MUST BE GRANTED TO THAT
VOLUNTEER AS OF RIGHT.  THIS STRANGE STANDARD IS NOT ONLY UNPRECEDENTED
AND UNWISE, IT IS ALSO UNWORKABLE.    THE REQUIREMENT OF INADEQUATE
REPRESENTATION BY EXISTING PARTIES AS A PRECONDITION OF THE RIGHT TO
INTERVENE UNDER THE NEW RULE 24 IS OBVIOUSLY AN ADAPTATION OF THE
SIMILAR STANDARD CONTAINED IN THE FORMER 24(A)(2).  DECISIONS UNDER
THAT STANDARD ALLOWED INTERVENTION OF RIGHT WHEN THE INTERVENOR COULD
SHOW A CONFLICT OF INTEREST BETWEEN HIMSELF AND THE PARTY SUPPOSED TO
REPRESENT HIS INTEREST, (FN21) A COMPLETE FAILURE OF REPRESENTATION BY
EXISTING PARTIES, (FN22) OR COLLUSION OR THE LIKELIHOOD OF COLLUSION
BETWEEN THEM.  (FN23)  MERE TACTICAL DISAGREEMENT OVER HOW LITIGATION
SHOULD BE CONDUCTED IS OBVIOUSLY INSUFFICIENT TO SUPPORT INTERVENTION
OF RIGHT.  (FN24)  IN IGNORING THESE PRECEDENTS, THE COURT ALSO
OVERLOOKS THE SOUND POLICIES WHICH UNDERLIE THEM.  THE COURT'S APPROACH
DRAWS JUDGES INTO THE ADVERSARY ARENA AND FORCES THEM INTO THE
IMPOSSIBLE POSITION OF TRYING TO SECOND-GUESS THE PARTIES IN THE
PURSUIT OF THEIR OWN INTERESTS.  IT IS ALSO WASTEFUL AND PRODUCTIVE OF
DELAY, BECAUSE UNDER THIS STRANGE STANDARD A PERSON'S RIGHT TO
INTERVENE IN LITIGATION CANNOT BE ASCERTAINED UNTIL THAT LITIGATION IS
CONCLUDED AND THE EXISTING PARTIES' CONDUCT EVALUATED. 

WRONG AS THE COURT'S APPROACH IS WITH RESPECT TO LITIGATION
GENERALLY, IT IS EVEN MORE WRONG WHEN A WOULD-BE INTERVENOR SEEKS TO
CHALLENGE THE ADEQUACY OF THE GOVERNMENT'S REPRESENTATION OF THE PUBLIC
INTEREST.  THE SEPARATION OF POWERS IN OUR FEDERAL SYSTEM GENERATES
PRINCIPLES THAT MAKE IT PECULIARLY INAPPROPRIATE FOR COURTS TO ASSUME
THE ROLE OF SUPERVISION OVER POLICY DECISIONS OF THE EXECUTIVE.  YET
THE COURT PRESUMES TO TELL THE JUSTICE DEPARTMENT THAT IT MADE TACTICAL
ERRORS IN CONDUCTING LITIGATION, FAILED IN ITS ASSESSMENT OF THE PUBLIC
INTEREST, AND CANNOT SETTLE A LAWSUIT WHICH IT HAS BROUGHT.  THIS COURT
DOES NOT HAVE THE CONSTITUTIONAL POWER TO SECOND-GUESS DECISIONS OF THE
ATTORNEY GENERAL MADE WITHIN THE BOUNDS OF HIS OFFICIAL DISCRETION. 
THAT IS THE RESPONSIBILITY OF THE PRESIDENT AND, ULTIMATELY, THE
ELECTORATE.  IN WORDS APPROPRIATE HERE, WE LONG AGO STATED IN THE
CONTEXT OF AN ATTACK ON THE GOVERNMENT'S SETTLEMENT OF AN ANTITRUST
CASE: "  ... WE DO NOT FIND IN THE STATUTES DEFINING THE POWERS AND
DUTIES OF THE ATTORNEY GENERAL ANY SUCH LIMITATION ON THE EXERCISE OF
HIS DISCRETION AS THIS CONTENTION INVOLVES.  HIS AUTHORITY TO MAKE
DETERMINATIONS INCLUDES THE POWER TO MAKE ERRONEOUS DECISIONS AS WELL
AS CORRECT ONES."  SWIFT & CO. V. UNITED STATES, 276 U.S. 311, 331
332.  THE COURT TODAY GIVES ONLY LIP SERVICE TO THESE PRINCIPLES.  IT
STATES THAT "WE DO NOT QUESTION THE AUTHORITY OF THE ATTORNEY GENERAL
TO SETTLE SUITS AFTER, AS WELL AS BEFORE, THEY REACH HERE."  ANTE, AT
136.  BUT IT THEN PROCEEDS TO TAKE THE DIRECTION OF A GOVERNMENT
LAWSUIT OUT OF THE HANDS OF THE ATTORNEY GENERAL AND INTO ITS OWN. 

THE COURT RELIES ON THE FACT THAT WE HAVE PREVIOUSLY RENDERED A
JUDGMENT IN THIS CASE AND CITES DICTUM FROM THE OPINION IN UNITED
STATES V. E.I. DU PONT & CO., 366 U.S. 316, TO JUSTIFY THE
EXTRAORDINARY COURSE IT TAKES.  BUT IN THE ABSENCE OF OUTRIGHT FRAUD,
IT HAS NEVER BEEN THOUGHT THAT THE FACT THAT PARTIES HAVE INITIALLY
RESORTED TO THE COURTS GIVES JUDGES POWER TO SET ASIDE LATER SETTLEMENT
AGREEMENTS AND IMPOSE OTHERS ON THE PARTIES.  AND CERTAINLY WHEN IT IS
THE EXECUTIVE BRANCH OF THE GOVERNMENT THAT HAS MADE THE SETTLEMENT AS
REPRESENTATIVE OF THE PUBLIC INTEREST, ONLY THE GROSSEST BAD FAITH OR
MALFEASANCE ON ITS PART COULD POSSIBLY SUPPORT SUCH A STEP.  EITHER THE
COURT IS SAYING THE GOVERNMENT WAS GUILTY OF SUCH MISCONDUCT - A CHARGE
TOTALLY WITHOUT SUPPORT IN THE RECORD - OR THE COURT HAS GROSSLY
OVERREACHED THE PERMISSIBLE LIMIT OF JUDICIAL POWER. 

NOT ONLY CONCERN FOR THE CONSTITUTIONAL POSITION OF THIS COURT, BUT
MORE DIRECTLY PRAGMATIC CONSIDERATIONS UNDERLIE MY DISAGREEMENT WITH
TODAY'S DECISION.  TO PERMIT VOLUNTEERS TO INTERVENE AND SECOND-GUESS
THE JUSTICE DEPARTMENT IS ESPECIALLY INAPPROPRIATE WHEN THE ISSUES
INVOLVED, LIKE THOSE IN THE ANTITRUST FIELD, REQUIRE TECHNICAL
EXPERIENCE AND AN ASSESSMENT AND BALANCING OF INTERESTS ESSENTIALLY
ADMINISTRATIVE AND POLITICAL.  FORMULATION OF EFFECTIVE AND CONSISTENT
GOVERNMENT ANTITRUST POLICY IS UNLIKELY TO RESULT FROM "PIECEMEAL
INTERVENTION OF A MULTITUDE OF INDIVIDUAL COMPLAINANTS" (FN25) IN
LITIGATION BROUGHT BY THE GOVERNMENT.  LESS THAN SIX YEARS AGO WE FULLY
RECOGNIZED THIS PRINCIPLE: 

"  ...  SOUND POLICY WOULD STRONGLY LEAD US TO DECLINE THE INVITATION
TO ASSESS THE WISDOM OF THE GOVERNMENT'S JUDGMENT IN NEGOTIATING AND
ACCEPTING THE  ...  CONSENT DECREE, AT LEAST IN THE ABSENCE OF ANY
CLAIM OF BAD FAITH OR MALFEASANCE ON THE PART OF THE GOVERNMENT IN SO
ACTING."  SAM FOX PUBLISHING CO. V. UNITED STATES, SUPRA, AT 689. 
(FN26) 

TODAY THE COURT IGNORES ALL THIS AND GRANTS INTERVENTION OF RIGHT TO
ANY VOLUNTEER CLAIMING TO SPEAK FOR THE PUBLIC INTEREST WHENEVER HE CAN
CONVINCE A COURT THAT THE GOVERNMENT MIGHT HAVE USED BAD JUDGMENT IN
CONDUCTING OR SETTLING A LAWSUIT.  I THINK THIS DECISION, WHICH
UNDERMINES THE JUSTICE DEPARTMENT IN THE DISCHARGE OF ITS
RESPONSIBILITIES, AND INVITES OBSTRUCTION AND DELAY IN THE COURSE OF
PUBLIC LITIGATION, IS UNSUPPORTED BY THE PROVISION OF OLD RULE 24, NEW
RULE 24, OR ANY OTHER CONCEIVABLY TOLERABLE STANDARD GOVERNING
INTERVENTION AS OF RIGHT.  THE DISTRICT COURT DID NOT ERR IN DENYING
INTERVENTION TO THE APPELLANTS, (FN27) AND THESE APPEALS SHOULD
THEREFORE BE DISMISSED.  (FN28) 

BUT EVEN IF I AM COMPLETELY WRONG, AND THE COURT IS RIGHT IN
CONCLUDING THAT THE DISTRICT COURT ERRED IN DENYING APPELLANTS THE
RIGHT TO INTERVENE, THE PROPER COURSE WOULD BE SIMPLY TO REMAND THE
CASE TO THE DISTRICT COURT SO THAT THE APPELLANTS' CONTENTIONS MAY BE
MET BY THE GOVERNMENT OR EL PASO AND PASSED ON BY A TRIAL COURT THAT IS
INTIMATELY FAMILIAR WITH THE MASSIVE RECORD IN THIS CASE.  INSTEAD, THE
COURT BRUSHES ASIDE THE "THRESHOLD" QUESTION OF APPELLANTS' RIGHT TO
INTERVENE IN A FEW PAGES AND DEVOTES MOST OF ITS OPINION TO
PRONOUNCEMENTS ON GAS RESERVES, DELIVERY CONTRACTS, AND OTHER
INTRICACIES OF GAS COMPETITION IN THE WESTERN UNITED STATES.  THESE
ISSUES WERE NEVER THE SUBJECT OF ADVERSARY PROCEEDINGS IN THE DISTRICT
COURT.  THEY WERE NEVER RESOLVED THROUGH FINDINGS BY THE DISTRICT
COURT.  APPELLEES DID NOT DIRECTLY BRIEF OR ARGUE THEM BEFORE THIS
COURT.  ON THE BASIS OF WHAT ARE IN EFFECT EX PARTE CRITICISMS OF THE
DECREE ENTERED BELOW, THE COURT LAYS DOWN "GUIDELINES" WITH RESPECT TO
COMPLEX ISSUES WHICH WILL SHAPE THE FUTURE OF AN IMPORTANT SEGMENT OF
THIS NATION'S COMMERCE.  IN SO DOING THE COURT ROAMS AT LARGE,
UNCONFINED BY ANYTHING SO MUNDANE AS A FACTUAL RECORD DEVELOPED IN
ADVERSARY PROCEEDINGS. 

"THE OBVIOUS MUST BE RESTATED.  WE DO NOT SIT TO DRAFT ANTITRUST
DECREES DO NOVO.  THIS IS A COURT OF APPEAL, NOT A TRIAL COURT.  WE DO
NOT SEE THE WITNESSES, SIFT THE EVIDENCE IN DETAIL, OR APPRAISE THE
COURSE OF EXTENDED ARGUMENT  ...  .  IN SHORT, THIS COURT DOES NOT
PARTAKE OF THE PROCEDURE AND IS NOT CHARGED WITH THE RESPONSIBILITY
DEMANDED OF THE COURT ENTRUSTED WITH THE TASK OF DEVISING THE DETAILS
OF A DECREE APPROPRIATE FOR THE GOVERNANCE OF A VASTLY COMPLICATED
SITUATION ARISING OUT OF UNIQUE CIRCUMSTANCES."  UNITED STATES V. E.I.
DU PONT & CO., 366 U.S. 316, 371 (DISSENTING OPINION). 

THE COURT HAS DECIDED THIS CASE ON LITTLE MORE THAN REPUGNANCE FOR
"THE ATTITUDE OR PHILOSOPHY OF THE DISTRICT COURT" AND THE UNJUSTIFIED
AND EXTRAORDINARILY OPPROBRIOUS CONCLUSION THAT THE GOVERNMENT
"KNUCKLED UNDER."  THIS IS NOT A HAPPY FOUNDATION FOR RADICAL
EXTENSIONS OF INTERVENTION DOCTRINE.  AND IT IS NOT A PROPER BASIS FOR
DECIDING HOW STOCK IN THE NEW COMPANY SHOULD BE MARKETED, OR HOW GAS
RESERVES IN NEW MEXICO SHOULD BE DIVIDED.  IN ITS ZEAL TO CENSURE THE
DISTRICT JUDGE AND REPRIMAND THE JUSTICE DEPARTMENT, THE COURT HAS
RUSHED HEADLONG INTO A JURISPRUDENTIAL QUAGMIRE FAR MORE DANGEROUS THAN
THE "EVIL" IT PURPORTS TO DISCERN IN THE DECREE ENTERED BY THE TRIAL
COURT. 

FINALLY, I MUST NOTE MY EMPHATIC DISAGREEMENT WITH THE COURT'S
EXTRAORDINARY ACTION IN DIRECTING THAT FURTHER PROCEEDINGS IN THIS CASE
MUST BE CONDUCTED BY A DIFFERENT DISTRICT JUDGE.  FEDERAL REVIEWING
COURTS HAVE TAKEN THIS SERIOUS STEP ONLY IN THE RAREST CIRCUMSTANCES,
WHEN THE TRIAL JUDGE'S PERSONAL OR EMOTIONAL INVOLVEMENT IN A CASE HAS
BEEN DEMONSTRATED.  SEE OFFUTT V. UNITED STATES, 348 U.S. 11; COOKE V.
UNITED STATES, 267 U.S. 517; OCCIDENTAL PETROLEUM CORP. V. CHANDLER,
303 F.2D 55 (C.A. 10TH CIR.), CERT. DENIED, 372 U.S. 915.  NO SUCH
INVOLVEMENT BY THE DISTRICT JUDGE IN THIS CASE IS REMOTELY SUGGESTED BY
THE RECORD.  NOBODY HAS REQUESTED HIS REPLACEMENT AT ANY STAGE OF THE
PROCEEDINGS.  FOR THIS COURT, ON ITS OWN MOTION, TO DISQUALIFY A TRIAL
JUDGE IN THE MIDDLE OF A CASE BECAUSE IT DISAGREES WITH HIS
"PHILOSOPHY" IS NOT ONLY UNPRECEDENTED, BUT INCREDIBLE. 

FN1  THE RULE HAS SINCE BEEN AMENDED.  SEE P. 153, INFRA. 

FN2  THIS STATEMENT IS CONFIRMED BY THE RULES ADVISORY COMMITTEE,
WHICH OBSERVED THAT THE RULE "AMPLIFIES AND RESTATES THE PRESENT
FEDERAL PRACTICE AT LAW AND IN EQUITY."  ADVISORY COMMITTEE ON RULES
FOR CIVIL PROCEDURE, NOTES, 25 (MARCH 1938). 

FN3  FOR A DISCUSSION OF THE ENGLISH AND EARLY AMERICAN PRACTICE, SEE
4 MOORE, FEDERAL PRACTICE PARA. 24.03; 2 STREET, FEDERAL EQUITY
PRACTICE SECS. 1364-1370 (1909). 

FN4  QUOTING WITH APPROVAL HORN V. VOLCANO WATER CO., 13 CAL. 62,
69.  SUBSEQUENT FEDERAL DECISIONS FOLLOWING THIS FORMULATION INCLUDE
PURE OIL CO. V. ROSS, 170 F.2D 651, 653 (C.A. 7TH CIR.); DOWDY V.
HAWFIELD, 88 U.S. APP. D.C. 241, 242, 189 F.2D 637, 638, CERT. DENIED,
342 U.S. 830. 

FN5  KRIPPENDORF V. HYDE, 110 U.S. 276. 

FN6  OSBORNE & CO. V. BARGE, 30 F.805 (C.C.N.D. IOWA). 

FN7  SEE UNITED STATES V. RADICE, 40 F.2D 445 (C.A.2D CIR.). 

FN8  GAINES V. CLARK, 51 APP. D.C. 71, 275 F.1017. 

FN9  E.G., PLITT V. STONEBRAKER, 90 U.S. APP. D.C. 256, 195 F.2D 39
(INTERVENTION GRANTED TO CREDITOR ASSERTING SECURITY INTEREST IN GOODS
SEIZED BY MARSHAL). 

FN10  FOR EXPANSIVE INTERPRETATIONS OF INTERPLEADER-TYPE
INTERVENTION, SEE BARNES V. ALEXANDER, 232 U.S. 117; PECKHAM V. FAMILY
LOAN CO., 212 F.2D 100 (C.A. 5TH CIR.).  BUT SEE VAUGHAN V. DICKINSON,
19 F.R.D. 323 (D.C.W.D. MICH.), AFF'D, 237 F.2D 168 (C.A.  6TH CIR.). 

FN11  CF. AMERICAN LOUISIANA PIPE LINE CO. V. GULF OIL CORP., 158 F.
SUPP. 13 (D.C.E.D. MICH.)(COUNTY NOT ALLOWED TO INTERVENE ON BEHALF OF
CONSUMERS IN PRIVATE GAS CONTRACT DISPUTE).  SEE ALSO PHILADELPHIA
ELECTRIC CO. V. WESTINGHOUSE ELECTRIC CORP., 308 F.2D 856 (C.A. 3D
CIR.), CERT. DENIED, 372 U.S. 936. 

FN12  SEE 26 STAT. 209 (1890), AS AMENDED, 15 U.S.C. SEC. 4; 38 STAT.
731 (1914), 15 U.S.C. SEC. 15; 69 STAT. 282 (1955), 15 U.S.C. SEC. 15A;
38 STAT. 736, AS AMENDED, 737, 15 U.S.C. SECS. 25, 26; 32 STAT. 823
(1903), AS AMENDED, 15 U.S.C. SECS. 28, 29. 

FN13  QUOTING WITH APPROVAL UNITED STATES V. BENDIX HOME APPLIANCES,
10 F.R.D. 73, 77 (D.C.S.D.N.Y.). 

FN14  IN UNITED STATES V. BORDEN CO., 347 U.S. 514, 518, THE COURT
STATED: "THE PRIVATE-INJUNCTION ACTION, LIKE THE TREBLE-DAMAGE ACTION
UNDER SEC. 4 OF THE ACT, SUPPLEMENTS GOVERNMENT ENFORCEMENT OF THE
ANTITRUST LAWS; BUT IT IS THE ATTORNEY GENERAL AND THE UNITED STATES
DISTRICT ATTORNEYS WHO ARE PRIMARILY CHARGED BY CONGRESS WITH THE DUTY
OF PROTECTING THE PUBLIC INTEREST UNDER THESE LAWS.  THE GOVERNMENT
SEEKS ITS INJUNCTIVE REMEDIES ON BEHALF OF THE GENERAL PUBLIC; THE
PRIVATE PLAINTIFF, THOUGH HIS REMEDY IS MADE AVAILABLE PURSUANT TO
PUBLIC POLICY AS DETERMINED BY CONGRESS, MAY BE EXPECTED TO EXERCISE IT
ONLY WHEN HIS PERSONAL INTEREST WILL BE SERVED." 

FN15  O'CONNELL V. PACIFIC GAS & ELECTRIC CO., 19 F.2D 460 (C.A. 9TH
CIR.)(INTERVENTION DENIED TO RATEPAYER PROTESTING PROPOSED SETTLEMENT
OF LITIGATION BETWEEN UTILITY AND MUNICIPALITY); RADFORD IRON CO. V.
APPALACHIAN ELECTRIC POWER CO., 62 F.2D 940 (C.A. 4TH CIR.), CERT.
DENIED, 289 U.S. 748 (BUSINESS INJURED BY UTILITY'S PROPOSED DAM DENIED
INTERVENTION IN SUIT BETWEEN UTILITY AND FPC); MACDONALD V. UNITED
STATES, 119 F.2D 821 (C.A. 9TH CIR.), AFF'D AS MODIFIED, 315 U.S. 262
(INTERVENTION UNDER RULE 24 DENIED IN SUIT OVER MINERAL RIGHTS BETWEEN
UNITED STATES AND RAILROAD TO ONE CLAIMING SUCH RIGHTS UNDER PATENT
FROM UNITED STATES); REICH V. WEBB, 336 F.2D 153 (C.A. 9TH CIR.), CERT.
DENIED, 380 U.S. 915 (DEPOSITORS DENIED 24(A)(3) INTERVENTION IN
PROCEEDING BY FEDERAL HOME LOAN BANK BOARD AGAINST SAVINGS AND LOAN
ASSOCIATION OFFICERS); GROSS V. MISSOURI & A. RY. CO., 74 F. SUPP. 242
(D.C.W.D. ARK.)(24(A)(3) INTERVENTION DENIED MUNICIPALITIES SERVED BY
RAILROAD INVOLVED IN REORGANIZATION PROCEEDINGS TO WHICH STATE WAS A
PARTY); BUTTERWORTH V. DEMPSEY, 229 F. SUPP. 754, 798-799 (D.C. CONN.),
AFF'D, 378 U.S. 562 (INTERVENTION UNDER 24(A)(3) DENIED OVERREPRESENTED
TOWNS IN REAPPORTIONMENT SUIT BROUGHT AGAINST STATE AUTHORITIES). 

FN16  INTERVENTION IN THIS COURT WAS ALLOWED IN UNITED STATES V. ST.
LOUIS TERMINAL, 236 U.S. 194, BUT THERE THE "INTERVENORS" WERE IN THE
PRACTICAL STATUS OF DEFENDANTS. 

MISSOURI-KANSAS PIPE LINE CO. V. UNITED STATES, 312 U.S. 502, RELIED
UPON BY THE COURT, IS COMPLETELY INAPPOSITE.  PANHANDLE EASTERN PIPE
LINE CO. WAS A COMPETITOR OF DEFENDANTS CHARGED BY THE GOVERNMENT WITH
IMPROPERLY EXERCISING CONTROL OVER PANHANDLE TO WEAKEN ITS THREAT AS A
COMPETITOR.  A CONSENT DECREE WAS NEGOTIATED TO PROTECT PANHANDLE'S
INDEPENDENCE.  THE DECREE PROVIDED FOR RETENTION OF JURISDICTION BY THE
COURT TO ENTER SUCH "FURTHER ORDERS AND DECREES" AS WERE NECESSARY TO
CARRY OUT ITS PURPOSE, AND STATED THAT "PANHANDLE EASTERN, UPON PROPER
APPLICATION, MAY BECOME A PARTY HERETO" TO PROTECT ITS RIGHTS UNDER THE
DECREE.  WHEN THE GOVERNMENT LATER SOUGHT MODIFICATIONS OF THE DECREE,
WE HELD THAT THE DECREE GAVE PANHANDLE THE RIGHT TO INTERVENE.  THE
COURT CAREFULLY NOTED THAT THIS RIGHT TO INTERVENE WAS BOTTOMED SOLELY
ON THE SPECIFIC PROVISIONS OF THE DECREE AND NOT GENERAL PRINCIPLES OF
INTERVENTION:  "ITS FOUNDATION IS THE CONSENT DECREE.  WE ARE NOT HERE
DEALING WITH A CONVENTIONAL FORM OF INTERVENTION  ...  ."  312 U.S., AT
506.  THE COURT CONCLUDED, "THEREFORE, THE CODIFICATION OF GENERAL
DOCTRINES OF INTERVENTION CONTAINED IN RULE 24(A) DOES NOT TOUCH OUR
PROBLEM."  312 U.S., AT 508.    FN17  THE POLICY BEHIND THESE DECISIONS
WAS STATED IN UNITED STATES V. AMERICAN SOCIETY OF COMPOSERS, AUTHORS
AND PUBLISHERS, 341 F.2D 1003 (C.A.2D CIR.), CERT. DENIED, 382 U.S.
877, IN WHICH ASCAP LICENSEES WERE DENIED INTERVENTION TO ASSERT THAT
ASCAP HAD VIOLATED A DECREE IN AN ANTITRUST SUIT BROUGHT BY THE
GOVERNMENT:  "THE UNITED STATES IN INSTITUTING ANTITRUST LITIGATION
SEEKS TO VINDICATE THE PUBLIC INTEREST AND, IN SO DOING, REQUIRES
CONTINUING CONTROL OVER THE SUIT ...  ."  341 F.2D, AT 1008. 

FN18  IN KLAPPROTT V. UNITED STATES, 335 U.S. 601, THE PETITIONER
SOUGHT TO REOPEN A DEFAULT JUDGMENT DENATURALIZING HIM, RELYING ON
AMENDMENTS TO RULE 60(B).  SEVERAL JUSTICES THOUGHT THAT THE PETITIONER
SHOULD BE ABLE TO OBTAIN RELIEF UNDER THE AMENDED RULE EVEN THOUGH THE
DISTRICT COURT HAD DENIED THE PETITIONER'S APPLICATION BEFORE THE
EFFECTIVE DATE OF THE AMENDMENTS.  CASCADE'S INTEREST HERE BEARS NO
RESEMBLANCE TO THE EXTRAORDINARY HARDSHIP AND INJUSTICE CLAIMED BY THE
PETITIONER IN KLAPPROTT, WHERE IT COULD BE PERSUASIVELY ARGUED THAT IT
WAS "MORE CONSONANT WITH EQUITABLE CONSIDERATIONS TO JUDGE THE CASE ON
THE BASIS OF THE RULE NOW IN FORCE, EVEN THOUGH THE LOWER COURT DID NOT
HAVE THE OPPORTUNITY TO APPLY IT."  335 U.S., AT 629 (DISSENTING
OPINION). 

FN19  SEE NOTES OF ADVISORY COMMITTEE ON RULES, FED. RULE CIV. PROC.
24, 28 U.S.C. APP.  RULE 24 (1964 ED., SUPP. II). 

FN20  THE FPC WILL PROTECT CASCADE'S EXISTING SUPPLY OF GAS WHEN NEW
COMPANY APPLIES FOR CERTIFICATION.  SEE, E.G., MICHIGAN CONSOLIDATED
GAS CO. V. FPC, 108 U.S. APP. D.C.  409, 283 F.2D 204, CERT. DENIED,
364 U.S. 913. 

FN21  PYLE-NATIONAL CO. V. AMOS, 172 F.2D 425 (C.A. 7TH CIR.); MACK
V. PASSAIC NAT.  BANK & TRUST CO., 150 F.2D 474, 154 F.2D 907 (C.A. 3D
CIR.); IN RE STANDARD POWER & LIGHT CORP., 48 F. SUPP. 716 (D.C.
DEL.). 

FN22  PELLEGRINO V. NESBIT, 203 F.2D 463 (C.A. 9TH CIR.). 

FN23  CUTHILL V. ORTMAN-MILLER MACHINE CO., 216 F.2D 336 (C.A. 7TH
CIR.); PARK & TILFORD, INC. V. SCHULTE, 160 F.2D 984 (C.A.2D CIR.),
CERT. DENIED, 332 U.S. 761; KLEIN V. NU-WAY SHOE CO., 136 F.2D 986
(C.A.2D CIR.); MOLYBDENUM CORP. OF AMERICA V. INTERNATIONAL MINING
CORP., 32 F.R.D. 415 (D.C.S.D.N.Y.); TWENTIETH CENTURY-FOX FILM CORP.
V. JENKINS, 7 F.R.D. 197 (D.C.S.D.N.Y.). 

FN24  ALLEGHANY CORP. V. KIRBY, 344 F.2D 571 (C.A.2D CIR.), CERT.
DISMISSED, 384 U.S. 28; STADIN V. UNION ELECTRIC CO., 309 F.2D 912
(C.A. 8TH CIR.), CERT. DENIED, 373 U.S. 915; UNITED STATES V. AMERICAN
SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, 202 F. SUPP.  340
(D.C.S.D.N.Y.).  BUT CF. FORD MOTOR CO. V. BISANZ BROS., 249 F.2D 22
(C.A. 8TH CIR.). 

FN25  UNITED STATES V. GENERAL ELECTRIC CO., 95 F. SUPP. 165, 169
(D.C.N.J.). 

FN26  THIS POLICY HAS BEEN GIVEN CONTINUING RECOGNITION BY THE LOWER
FEDERAL COURTS.  REICH V. WEBB, 336 F.2D 153 (C.A. 9TH CIR.), CERT.
DENIED, 380 U.S. 915; MACDONALD V. UNITED STATES, 119 F.2D 821 (C.A.
9TH CIR.), AFF'D AS MODIFIED, 315 U.S. 262; UNITED STATES V. GENERAL
ELECTRIC CO., 95 F. SUPP. 165 (D.C.N.J.).  SEE WOMETCO TELEVISION &
THEATRE CO. V. UNITED STATES, 355 U.S. 40.  BUT CF. ATLANTIC REFINING
CO. V. STANDARD OIL CO., 113 U.S. APP. D.C. 20, 304 F.2D 387. 

FN27  THE APPELLANTS ALSO SEEK TO CHALLENGE THE DISTRICT COURT'S
DENIAL OF THEIR MOTIONS FOR PERMISSIVE INTERVENTION UNDER RULE 24(B). 
WE HAVE NO JURISDICTION TO CONSIDER THIS CHALLENGE.  ALLEN CALCULATORS,
INC. V. NATIONAL CASH REGISTER CO., 322 U.S. 137.  SEE SAM FOX
PUBLISHING CO. V. UNITED STATES, 366 U.S. 683, AT 688 AND N. 3.  AND IN
ANY EVENT THE DISTRICT COURT DID NOT, IN THE CIRCUMSTANCES OF THIS
PROTRACTED AND COMPLEX LITIGATION, ABUSE ITS DISCRETION IN CHOOSING TO
ALLOW APPELLANTS TO PRESENT THEIR VIEWS BY AMICUS BRIEFS RATHER THAN
AFFORDING THEM PERMISSIVE INTERVENTION AS FULL PARTIES. 

FN28  SEE SUTPHEN ESTATES, INC. V. UNITED STATES, 342 U.S. 19. 
..END :























LEVIN V. MISSISSIPPI RIVER FUEL CORP. 386 U.S. 162 


NO. 352.  ARGUED JANUARY 19, 1967.  - DECIDED FEBRUARY 27, 1967.*  359
F.2D 106, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 359, ALLEGHANY CORP. ET AL. V. MISSISSIPPI RIVER
FUEL CORP. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


THE CAPITAL STOCK OF THE MISSOURI PACIFIC RAILROAD COMPANY (MOPAC), A
MISSOURI CORPORATION, CONSISTS OF TWO CLASSES, A AND B. CLASS A, WITH
1,849,576 SHARES OUTSTANDING, IS PREFERENTIALLY ENTITLED TO
NONCUMULATIVE DIVIDENDS NOT TO EXCEED $5 A SHARE ANNUALLY, AND ITS
EQUITY IS LIMITED TO $100 A SHARE.  CLASS B, WITH 39,731 SHARES
OUTSTANDING, IS ENTITLED TO THE EARNINGS AND EQUITY IN EXCESS OF THE
CLASS A PREFERENCES, AND ITS EQUITY IS CURRENTLY VALUED AT ABOUT $6,500
A SHARE.  MOPAC'S CORPORATE CHARTER PROVIDES THAT EACH SHARE OF EACH
CLASS IS ENTITLED TO ONE VOTE, WITH THE PROVISO THAT A SEPARATE VOTE OF
EACH CLASS IS REQUIRED ON ANY PROPOSAL AFFECTING THE PREFERENCES OR
RELATIVE RIGHTS OF EITHER CLASS.  SECTION 5(11) OF THE INTERSTATE
COMMERCE ACT REQUIRES FOR ICC APPROVAL OF A VOLUNTARY RAILROAD MERGER
THE ASSENT OF THE MAJORITY OF THE SHARES ENTITLED TO VOTE "UNLESS A
DIFFERENT VOTE IS REQUIRED UNDER APPLICABLE STATE LAW."  MISSOURI LAW
APPLICABLE TO MERGERS PROVIDES FOR APPROVAL BY AT LEAST A TWO-THIRDS
VOTE OF ALL OUTSTANDING SHARES (MO. REV. STAT. SEC.  351.425).  ANOTHER
CHARTER SO REQUIRES (SEC. 351.270).  A PLAN TO CONSOLIDATE MOPAC AND A
SUBSIDIARY RAILROAD WAS APPROVED BY THEIR BOARDS OF DIRECTORS AND
SUBMITTED FOR ICC APPROVAL, INCLUDING PROVISION FOR AN EXCHANGE OF EACH
MOPAC SHARE, WITHOUT REGARD TO CLASS, FOR FOUR SHARES OF THE NEW
CORPORATION.  THE PROPOSED PLAN WAS TO BE PASSED ON BY THE STOCKHOLDERS
VOTING COLLECTIVELY RATHER THAN BY CLASS.  CHARGING THAT THE PROPOSED
EXCHANGE WAS UNFAIR IN VIEW OF THE FAR GREATER VALUE OF THE CLASS B
STOCK THAN THAT OF THE CLASS A STOCK, APPELLANTS, CLASS B STOCKHOLDERS,
BROUGHT THIS SUIT FOR DECLARATORY RELIEF.  THE DISTRICT COURT UPHELD
APPELLANTS' CONTENTION THAT THE COLLECTIVE VOTING PLAN WOULD VIOLATE
MOPAC'S CORPORATE CHARTER AND BOTH STATE AND FEDERAL LAW.  THE COURT OF
APPEALS REVERSED ON THE GROUND THAT, DESPITE MISSOURI LAW, THE "PLENARY
CHARACTER OF SEC. 5(11)  ...  WITH ITS CONSEQUENT PREEMPTIVE NATURE"
COMPELLED A CONTRARY RESULT.  HELD:  IN A CONSOLIDATION SUCH AS THAT
PROPOSED HERE, MISSOURI LAW APPLIES, AND SEC. 351.270 OF THAT LAW
REQUIRES APPLICATION OF THE CORPORATE CHARTER PROVISION, WHICH IN TURN
REQUIRES A MAJORITY ASSENT OF THE STOCKHOLDERS ON A SEPARATE CLASS-VOTE
BASIS.  PP.  167-170. 

LEVIN V. MISSISSIPPI RIVER FUEL CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE ISSUE IN THESE CASES IS WHETHER THE HOLDERS OF THE CLASS
B STOCK OF THE MISSOURI PACIFIC RAILROAD COMPANY (MOPAC) ARE ENTITLED
TO VOTE SEPARATELY, AS A CLASS, ON THE PROPOSED PLAN OF CONSOLIDATION
OF MOPAC AND TEXAS AND PACIFIC RAILWAY COMPANY (T&P) INTO THE NEWLY
FORMED TEXAS AND MISSOURI PACIFIC RAILROAD COMPANY (T&M).  AN
APPLICATION HAS BEEN FILED WITH THE INTERSTATE COMMERCE COMMISSION
REQUESTING PERMISSION TO EFFECT A PLAN OF CONSOLIDATION UNDER SECS.
5(2) AND 5(11) OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 54 STAT.
905, 908 (1940), 49 U.S.C. SECS. 5(2) AND 5(11).  MOPAC'S BOARD OF
DIRECTORS HAS ANNOUNCED THAT ITS CLASS B SHAREHOLDERS ARE NOT ENTITLED
TO VOTE ON THE PLAN SEPARATELY AND APART FROM ITS CLASS A SHAREHOLDERS,
AND THAT IT INTENDS TO SUBMIT THE PLAN ONLY TO THE COLLECTIVE VOTE OF
THE CLASS A AND CLASS B SHAREHOLDERS. 

THREE SEPARATE DECLARATORY JUDGMENT ACTIONS WERE FILED BY DIFFERENT
CLASS B SHAREHOLDERS SEEKING A DECLARATION THAT THE PLAN REQUIRES THE
SEPARATE APPROVAL OF THE HOLDERS OF THE CLASS B SHARES BY MAJORITY
VOTE.  UPON A LIMITED CONSOLIDATION OF THE CASES, THE DISTRICT COURT
HELD THAT MOPAC'S ARTICLES OF ASSOCIATION PROHIBITED THE CONSOLIDATION
UNLESS CLASS VOTING WAS OBSERVED AND THAT SEC. 5(11) (FN1) OF THE
INTERSTATE COMMERCE ACT, BY ADOPTING STATE LAW, REQUIRED THE SEPARATE
APPROVAL OF EACH CLASS OF SHAREHOLDERS.  233 F. SUPP.  747.  THE COURT
OF APPEALS REVERSED ON THE GROUND THAT, DESPITE MISSOURI LAW, THE
"PLENARY CHARACTER OF SEC. 5(11) ...  WITH ITS CONSEQUENT PREEMPTIVE
NATURE" COMPELLED A CONTRARY RESULT.  359 F.2D 106, AT 119.  WE GRANTED
CERTIORARI.  385 U.S. 814.  WE HAVE CONCLUDED THAT MISSOURI LAW, AS
PROVIDED BY SEC. 5(11), IS CONTROLLING ON THE POINT AND THAT THE
JUDGMENT MUST, THEREFORE, BE REVERSED. 

              I. 

BACKGROUND OF THE PARTIES AND THE LITIGATION. 

MOPAC, A MISSOURI CORPORATION, IS AN INTERSTATE COMMON CARRIER
RAILROAD.  IT HAD BEEN IN REORGANIZATION PROCEEDINGS UNDER SEC. 77 OF
THE BANKRUPTCY ACT, AS AMENDED, 11 U.S.C.  SEC. 205, UNTIL JANUARY 1,
1955.  (FN2)  AFTER THOSE PROCEEDINGS TERMINATED, THE CORPORATION'S
PREFERRED AND COMMON STOCK WAS REPLACED BY TWO CLASSES OF $100 STATED
CAPITAL NO PAR VOTING SHARES:  CLASS A, WHICH IS PREFERENTIALLY
ENTITLED TO NONCUMULATIVE DIVIDENDS NOT TO EXCEED $5 PER SHARE
ANNUALLY, AND CLASS B, WHICH IS ENTITLED TO ALL THE EARNINGS AND THE
EQUITY IN EXCESS OF THE CLASS A PREFERENCES.  MOPAC'S ARTICLES OF
ASSOCIATION, ART. VII, SEC. D(3), PROVIDE THAT CLASS VOTING SHALL NOT
BE REQUIRED SAVE AS TO FOUR TYPES OF CORPORATE CHANGE, NONE OF WHICH
SHALL BE EFFECTED WITHOUT THE SEPARATE CONSENT OF THE RECORD HOLDERS OF
A MAJORITY OF THE CLASS A AND THE CLASS B SHARES.  THE FOUR SPECIFIED
CHANGES ARE:  (1) THE ISSUANCE OF ADDITIONAL SHARES; (2) THE CREATION
OR ISSUANCE OF ANY MOPAC OBLIGATION OR SECURITY CONVERTIBLE INTO OR
EXCHANGEABLE FOR MOPAC SHARES; (3) AN ALTERATION OR CHANGE IN "THE
PREFERENCES, QUALIFICATIONS, LIMITATIONS, RESTRICTIONS AND SPECIAL OR
RELATIVE RIGHTS OF THE CLASS A STOCK OR OF THE CLASS B STOCK"; AND,
FINALLY, (4) THE AMENDMENT OR ELIMINATION OF ANY OF THE FOREGOING
REQUIREMENTS. 

MOPAC HAS 1,849,576 SHARES OF CLASS A STOCK AND 39,731 SHARES OF
CLASS B STOCK OUTSTANDING.  T&P WAS INCORPORATED BY AN ACT OF CONGRESS
IN 1871 AND IS ALSO AN INTERSTATE RAILROAD OF WHICH MOPAC OWNS 82.86%
OF THE OUTSTANDING SHARES OF STOCK.  MISSISSIPPI RIVER FUEL CORPORATION
(MISSISSIPPI) IS A DELAWARE CORPORATION AND OWNS A MAJORITY (57.95%) OF
THE CLASS A SHARES OF THE STOCK OF MOPAC.  ALLEGHANY CORPORATION
(ALLEGHANY) IS A MARYLAND CORPORATION AND OWNS A MAJORITY (51%) OF THE
CLASS B STOCK OF MOPAC, SUBJECT TO A VOTING TRUST.  T&M IS A DELAWARE
CORPORATION ORGANIZED FOR THE PURPOSE OF BEING THE CONSOLIDATED COMPANY
UPON THE MERGER OF MOPAC AND T&P. 

THE AGREEMENT AND PLAN OF CONSOLIDATION WERE APPROVED BY THE BOARD OF
DIRECTORS OF MOPAC AND T&P IN DECEMBER OF 1963.  THE PLAN PROVIDED FOR
AN EXCHANGE OF EACH MOPAC SHARE (WITHOUT REGARD TO CLASS) FOR FOUR
SHARES OF THE NEW CORPORATION AND FOR AN EXCHANGE OF THE T&P STOCK
(OTHER THAN THAT OWNED BY MOPAC) ON A BASIS OF ONE SHARE OF T&P FOR 4.8
SHARES OF THE NEW COMPANY.  IN JANUARY OF 1964, THE THREE COMPANIES
FILED A JOINT APPLICATION WITH THE INTERSTATE COMMERCE COMMISSION FOR
AN ORDER UNDER SEC. 5(2) OF THE ACT AUTHORIZING THE CONSOLIDATION AND
THE ISSUANCE OF SECURITIES BY T&M UNDER SEC. 20A.  IN THIS APPLICATION
MOPAC ADVISED THAT IT WOULD SUBMIT THE PROPOSED PLAN TO ITS
STOCKHOLDERS, FOR APPROVAL, BY MAY OF 1964 ON THE BASIS OF A
COLLECTIVE, RATHER THAN CLASS, VOTE. 

THERE ARE A TOTAL OF SIX INDIVIDUAL PETITIONERS, EACH OF WHOM OWNS
ONLY A NOMINAL NUMBER OF CLASS B SHARES, AND ALLEGHANY WHICH OWNS, AS
AFORESAID, A MAJORITY OF THOSE SHARES.  THE RESPONDENTS ARE MOPAC, T&P,
MISSISSIPPI, AND SOME OF THEIR DIRECTORS OR OFFICERS, ONLY ONE OF WHOM
OWNS ANY CLASS B STOCK OF MOPAC.  THE FIRST OF THE THREE SUITS WHICH
THIS CAUSE INVOLVES WAS FILED PRIOR TO THE SUBMISSION OF THE PLAN TO
THE COMMISSION; THE SECOND AND THIRD SUBSEQUENT THERETO.  EACH OF THE
SUITS ATTACKS THE PLANS OF CONSOLIDATION, ALLEGING, AMONG OTHER THINGS,
THAT THE CLASS B STOCK HAS A MUCH GREATER VALUE THAN THAT OF THE CLASS
A AND THAT THE EXCHANGE IS UNFAIR; THAT THE COLLECTIVE VOTING PLAN
WOULD VIOLATE THE ARTICLES OF ASSOCIATION, THE LAW OF MISSOURI (AND,
THEREFORE, SEC. 5(11) OF THE ACT) AND WOULD RESULT IN IRREPARABLE
INJURY TO THE CLASS B SHAREHOLDERS.  EACH COMPLAINT PRAYS FOR A
DECLARATION THAT THE PLAN OF CONSOLIDATION REQUIRES THE SEPARATE VOTE
OF EACH CLASS OF STOCK.  AT TRIAL THE PARTIES AGREED THAT THE COURT
SHOULD FIRST PASS UPON THE VOTING RIGHTS QUESTION.  THE DISTRICT COURT
HELD THAT CLASS VOTING WAS REQUIRED AND CERTIFIED THE ISSUE TO THE
COURT OF APPEALS WHICH PERMITTED AN INTERLOCUTORY APPEAL UNDER 28
U.S.C. SEC. 1292(B).  FURTHER PROCEEDINGS IN THE DISTRICT COURT WERE
STAYED.  AS WE HAVE INDICATED, THE COURT OF APPEALS HELD THAT, EVEN
THOUGH MOPAC'S ARTICLES OF ASSOCIATION REQUIRED A CLASS VOTE ON
CONSOLIDATION AND MISSOURI LAW, THEREFORE, DEMANDED SUCH A VOTE, IT
NEVERTHELESS WAS "IMPRESSED WITH THE SIGNIFICANCE OF THE NATIONAL
TRANSPORTATION POLICY AND ITS EMPHASIS ON RAILROAD CONSOLIDATION, WITH
THE STATED EXCLUSIVE AND PLENARY CHARACTER OF SEC. 5(11), AND WITH ITS
CONSEQUENT PREEMPTIVE NATURE."  359 F.2D, AT 119.  THE COURT FELT THAT,
BY VIRTUE OF THE FEDERAL STATUTE, IT WAS COMPELLED TO CONCLUDE THAT IT
SHOULD APPLY THE GENERAL STANDARD AS TO VOTING RIGHTS, I.E., THE
MAJORITY OF ALL VOTING SHARES, RATHER THAN HONOR THE EXCEPTION, I.E.,
CLASS VOTING, AS PROVIDED UNDER MISSOURI LAW. 

             II. 

CONCLUSION. 

WE BELIEVE THE COURT OF APPEALS ERRED IN SO CONSTRUING SEC. 5(11) OF
THE ACT.  THAT SECTION SPECIFICALLY PROVIDES THAT VOLUNTARY
CONSOLIDATIONS OF RAILROADS MUST HAVE THE ASSENT "OF A MAJORITY VOTE OF
ALL SHARES, UNLESS A DIFFERENT VOTE IS REQUIRED UNDER APPLICABLE STATE
LAW, IN WHICH CASE THE NUMBER SO REQUIRED SHALL ASSENT, OF THE VOTES OF
THE HOLDERS OF THE SHARES ENTITLED TO VOTE  ...  ."  AS THE COURT OF
APPEALS HELD, THIS SECTION "BOWS IN THE DIRECTION OF STATE LAW."  359
F.2D, AT 114.  BOTH THE DISTRICT COURT AND THE COURT OF APPEALS DECIDED
THAT MO. REV. STAT. C. 351 WAS "THE APPLICABLE STATE LAW."  AS BOTH
COURTS FOUND, SEC. 351.055(3) AUTHORIZES THE ISSUANCE OF CLASSES OF
SHARES OF STOCK AND SEC. 351.270 PROVIDES THAT WHERE "THE ARTICLES OF
INCORPORATION REQUIRE THE VOTE OR CONCURRENCE OF THE HOLDERS OF A
GREATER PORTION OF THE SHARES, OR OF ANY CLASS OR SERIES THEREOF, THAN
REQUIRED BY THIS CHAPTER WITH RESPECT TO SUCH ACTION, THE PROVISIONS OF
THE ARTICLES OF INCORPORATION SHALL CONTROL THIS SECTION."  BUT THE
COURT OF APPEALS CONCLUDED THAT SINCE SEC. 351.425 (FN3) PERMITTED THE
PLAN TO BE APPROVED BY THE VOTE OF AT LEAST TWO-THIRDS OF ALL THE
OUTSTANDING SHARES, SEC. 5(11) REQUIRED THAT IT CONTROL, RATHER THAN
SEC. 351.270.  WE THINK NOT.  IN USING THE LANGUAGE "REQUIRED UNDER
APPLICABLE STATE LAW," SEC. 5(11) EMBRACED ALL STATE LAW, AS THE COURT
OF APPEALS HELD.  THIS INCLUDED THE EXCEPTION OF SEC. 351.270 AS TO
THOSE CORPORATIONS WHOSE ARTICLES OF INCORPORATION REQUIRED CLASS
VOTING.  THE NATIONAL TRANSPORTATION POLICY AND THE PROVISIONS OF SEC.
5(11), RATHER THAN PERMITTING THE RESULT THE COURT OF APPEALS REACHED,
REQUIRE THAT "THE ARTICLES OF INCORPORATION SHALL CONTROL  ...  ."  IT
FOLLOWS THAT IF A CONSOLIDATION COMES WITHIN THE REQUIREMENTS OF SEC.
D(3) OF THE ARTICLES OF ASSOCIATION, THE APPROVAL BY THE SEPARATE VOTE
OF EACH CLASS OF STOCK IS REQUIRED.  THE DISTRICT COURT FOUND THAT THE
PLAN OF CONSOLIDATION DID COME WITHIN SEC. D(3).  IT IS CLEAR THAT THE
COURT OF APPEALS DID NOT DISTURB THIS FINDING, ALTHOUGH IT IS NOT
PRECISELY CLEAR WHAT THE COURT FOUND ON THE QUESTION.  AT ONE POINT, IT
APPEARS TO SAY THAT "THE ARTICLES SEEM TO REQUIRE" SEPARATE CLASS
VOTING, WHILE IT LATER ASSUMES THAT THEY DO SO.  SUBSEQUENTLY THE
OPINION NOTES THAT THE COURT IS "NOT PERSUADED  ...  THAT MOPAC'S
ARTICLES CALL FOR A CLASS VOTE ON A CONSOLIDATION  ...  ."  359 F.2D,
AT 119.  IN ANY EVENT, WE AGREE WITH THE TRIAL COURT THAT THE ARTICLES
DO REQUIRE A SEPARATE CLASS VOTE ON THE PLAN.  WE BELIEVE THAT THE
PROVISION THAT THE COMPANY "SHALL NOT  ...  (C) ALTER OR CHANGE THE
PREFERENCES, QUALIFICATIONS, LIMITATIONS, RESTRICTIONS AND SPECIAL OR
RELATIVE RIGHTS OF THE CLASS A STOCK OR OF THE CLASS B STOCK" WOULD
CLEARLY INCLUDE THE PLAN OF CONSOLIDATION HERE.  MOPAC, BY
CONSOLIDATING THE TWO RAILROADS THAT IT ALREADY CONTROLS, WILL CHANGE
ITS CLASS A STOCK FROM VOTING SHARES PREFERENTIALLY ENTITLED TO
NONCUMULATIVE DIVIDENDS OF NOT TO EXCEED $5 PER SHARE ANNUALLY TO
SHARES THAT PARTICIPATE EQUALLY IN ALL OF THE EARNINGS OF THE COMPANY. 
THE CLASS B STOCK WHICH NOW ENJOYS ALL OF THE EARNINGS AND THE EQUITY
IN EXCESS OF THE PRESENT CLASS A PREFERENCES WOULD LOSE THOSE SPECIAL
FEATURES.  AS THE COURT OF APPEALS FOUND, THE EFFECTUATION OF THE PLAN
WOULD "RESULT IN THE PRESENT CLASS B HOLDINGS BEING ENGULFED BY THE
LARGER NUMBER OF CLASS A HOLDINGS."  359 F.2D, AT 110.  IT IS APROPOS
TO NOTE HERE THAT WHILE THE EQUITY OF EACH CLASS A SHARE REMAINS
LIMITED TO $100, THE VALUE OF THE EQUITY OF THE CLASS B SHARES IS
APPROXIMATELY $6,500 PER SHARE.  THE PLAN PROPOSES TO EXCHANGE FOUR
SHARES OF STOCK OF T&M FOR ONE SHARE OF MOPAC CLASS B, WHICH, UNDER
SUCH VALUES, IS LIKE EXCHANGING FOUR RABBITS FOR ONE HORSE.  MOREOVER,
THE FINAL PROVISO OF SEC. D(3) REQUIRES A SEPARATE CLASS VOTE WHERE ANY
AMENDMENT OR ELIMINATION OF ANY OF THE PROVISIONS OF THE SECTION ITSELF
IS PROPOSED.  UNDER THE PLAN THIS SECTION WOULD BE ENTIRELY ELIMINATED
ON THE BASIS OF A COLLECTIVE VOTE RATHER THAN A SEPARATE CLASS ONE. 
BUT MOPAC ARGUES THAT THIS WOULD NOT BE "COMPANY ACTION."  WE CANNOT
AGREE.  THE BOARDS OF DIRECTORS OF MOPAC AND T&P, WHICH IT CONTROLS,
DREW UP THE PLAN AND NOW REQUEST ITS APPROVAL BY THE INTERSTATE
COMMERCE COMMISSION.  THIS CERTAINLY IS "COMPANY ACTION" WITHIN THE
TERMS OF THE ARTICLES.  (FN4)  INDEED, THIS POINT IS SO CLEAR THAT WE
SEE NO OCCASION FOR REMANDING THE ISSUE TO THE COURT OF APPEALS FOR ITS
CONSIDERATION OF THE POINT, EVEN THOUGH IT BE ASSUMED THAT ITS OPINION
DOES NOT DECIDE IT.  EFFECTIVE JUDICIAL ADMINISTRATION REQUIRES THAT WE
DISPOSE OF THE MATTER HERE. 

WE DO NOT, OF COURSE, REACH THE MERITS OF THE PROPOSED PLAN WHICH IS
THE CONCERN OF THE COMMISSION IN THE FIRST INSTANCE.  ANY REFERENCE TO
THE EFFECT OF THE PLAN IS NOT TO BE CONSTRUED AS IN ANY WAY PASSING
UPON ITS MERITS.  WITH REFERENCE TO VOTING RIGHTS, WE HOLD ONLY THAT IN
A CONSOLIDATION AS PROPOSED HERE, MISSOURI LAW MUST BE APPLIED AND THAT
SEC. 351.270 OF THAT LAW REQUIRES THE APPLICATION OF THE ARTICLES OF
ASSOCIATION OF MOPAC, WHICH IN TURN, REQUIRE THE ASSENT OF THE MAJORITY
OF THE SHAREHOLDERS ON A SEPARATE CLASS-VOTE BASIS. 

THE JUDGMENT IS, THEREFORE, REVERSED AND THE CAUSE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SECTION 5(11): 

"THE AUTHORITY CONFERRED BY THIS SECTION SHALL BE EXCLUSIVE AND
PLENARY, AND ANY CARRIER OR CORPORATION PARTICIPATING IN OR RESULTING
FROM ANY TRANSACTION APPROVED BY THE COMMISSION THEREUNDER, SHALL HAVE
FULL POWER (WITH THE ASSENT, IN THE CASE OF A PURCHASE AND SALE, A
LEASE, A CORPORATE CONSOLIDATION, OR A CORPORATE MERGER, OF A MAJORITY,
UNLESS A DIFFERENT VOTE IS REQUIRED UNDER APPLICABLE STATE LAW, IN
WHICH CASE THE NUMBER SO REQUIRED SHALL ASSENT, OF THE VOTES OF THE
HOLDERS OF THE SHARES ENTITLED TO VOTE OF THE CAPITAL STOCK OF SUCH
CORPORATION AT A REGULAR MEETING OF SUCH STOCKHOLDERS, THE NOTICE OF
SUCH MEETING TO INCLUDE SUCH PURPOSE, OR AT A SPECIAL MEETING THEREOF
CALLED FOR SUCH PURPOSE) TO CARRY SUCH TRANSACTION INTO EFFECT AND TO
OWN AND OPERATE ANY PROPERTIES AND EXERCISE ANY CONTROL OR FRANCHISES
ACQUIRED THROUGH SAID TRANSACTION WITHOUT INVOKING ANY APPROVAL UNDER
STATE AUTHORITY  ...  ."    FN2  SEE MISSOURI PAC. R. CO.
REORGANIZATION, 290 I.C.C. 477 (1954); IN RE MISSOURI PAC. R. CO., 129
F. SUPP. 392 (D.C.E.D. MO. 1955), AFF'D SUB NOM. MISSOURI PAC. R. CO. 5
1/4% S.S.B.C. V. THOMPSON, 225 F.2D 761 (C.A. 8TH CIR. 1955). 

FN3  MO. REV. STAT. SEC. 351.425 PROVIDES, IN PERTINENT PART:  "  ...
THE PLAN OF MERGER OR CONSOLIDATION SHALL BE APPROVED UPON RECEIVING
THE AFFIRMATIVE VOTE OF THE HOLDERS OF AT LEAST TWO-THIRDS OF THE
OUTSTANDING SHARES ENTITLED TO VOTE AT SUCH MEETING, OF EACH OF SUCH
CORPORATIONS." 

FN4  IT IS INTERESTING TO NOTE THAT THE INTERSTATE COMMERCE
COMMISSION ITSELF REQUIRED THAT ART. VII, SEC. D(3) BE INSERTED IN
MOPAC'S ARTICLES OF ASSOCIATION.  THE COMMISSION'S ORDER PROVIDED: 

"THE CERTIFICATE OF INCORPORATION (OF THE REORGANIZED CORPORATION)
SHALL PERMIT THE AUTHORIZATION FROM TIME TO TIME OF ADDITIONAL SHARES
OF COMMON STOCK OF EITHER CLASS, BUT SHALL SPECIFICALLY PROVIDE THAT
THE NEW COMPANY SHALL NOT ALTER OR CHANGE THE RIGHTS OF HOLDERS OF
EITHER CLASS OF STOCK OR AUTHORIZE THE ISSUANCE OF ADDITIONAL SHARES OF
EITHER CLASS OR OF ANY OTHER CLASS OR OF PARTICIPATING OR CONVERTIBLE
PREFERRED STOCK, WITHOUT THE CONSENT OF THE HOLDERS OF NOT LESS THAN A
MAJORITY OF THE NUMBER OF SHARES OF COMMON STOCK OF EACH CLASS AT THE
TIME OUTSTANDING."  290 I.C.C. 477, AT 665. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :






VACA V. SIPES 386 U.S. 171 


NO. 114.  ARGUED NOVEMBER 17, 1966.  - DECIDED FEBRUARY 27, 1967.  397
S.W.2D 658, REVERSED. 


PETITIONERS, UNION OFFICIALS, WERE SUED IN A STATE COURT BY A UNION
MEMBER WHO ALLEGED WRONGFUL DISCHARGE BY HIS EMPLOYER IN VIOLATION OF
THE COLLECTIVE BARGAINING AGREEMENT AND THE UNION'S ARBITRARY REFUSAL
TO TAKE HIS GRIEVANCE TO ARBITRATION UNDER THE FIFTH AND FINAL STEP OF
THE BARGAINING AGREEMENT'S GRIEVANCE PROCEDURES.  THE EMPLOYEE, WHOSE
DUTIES REQUIRED STRENUOUS ACTIVITY, WAS DISCHARGED ON THE GROUND OF
POOR HEALTH.  DURING THE FOURTH GRIEVANCE STEP THE UNION SENT THE
EMPLOYEE TO A PHYSICIAN FOR A COMPLETE EXAMINATION.  THE REPORT WAS
UNFAVORABLE TO THE EMPLOYEE AND THE UNION DECIDED NOT TO TAKE THE
GRIEVANCE TO ARBITRATION.  AFTER A JURY VERDICT FOR THE EMPLOYEE, THE
TRIAL JUDGE SET ASIDE THE VERDICT ON THE GROUND THAT THE NLRB HAD
EXCLUSIVE JURISDICTION OVER THE CONTROVERSY.  THE KANSAS CITY COURT OF
APPEALS AFFIRMED, BUT THE MISSOURI SUPREME COURT REVERSED AND ORDERED
THE JURY'S VERDICT REINSTATED.  HELD: 

1.  SINCE THE UNION'S DUTY, AS EXCLUSIVE AGENT, FAIRLY TO REPRESENT
ALL MEMBERS OF A DESIGNATED UNIT IS BASED ON FEDERAL STATUTES, FEDERAL
LAW GOVERNS THE EMPLOYEE'S CAUSE OF ACTION FOR BREACH OF THAT DUTY. 
PP. 176-177. 

2.  ALTHOUGH THE NLRB HAS RECENTLY HELD THAT A UNION'S BREACH OF ITS
STATUTORY DUTY OF FAIR REPRESENTATION IS AN UNFAIR LABOR PRACTICE UNDER
SEC. 8(B) OF THE NATIONAL LABOR RELATIONS ACT, IT DOES NOT FOLLOW THAT
THE BROAD PRE-EMPTION DOCTRINE DEFINED IN SAN DIEGO BUILDING TRADES
COUNCIL V. GARMON, 359 U.S. 236, HOLDING THAT THE NLRB HAS EXCLUSIVE
JURISDICTION OVER ACTIVITY ARGUABLY SUBJECT TO SEC. 8 OF THE ACT, IS
APPLICABLE THERETO.  PP 177-188. 

(A)  THE PRE-EMPTION DOCTRINE HAS NOT BEEN RIGIDLY APPLIED WHERE IT
COULD NOT BE FAIRLY INFERRED THAT CONGRESS INTENDED EXCLUSIVE
JURISDICTION TO LIE WITH THE NLRB.  PP. 179-180. 

(B)  THE PRE-EMPTION RULE HAS NOT BEEN APPLIED WHERE THE ACTIVITY
REGULATED WAS MERELY A PERIPHERAL CONCERN OF THE LABOR MANAGEMENT
RELATIONS ACT.  P. 180. 

(C)  THE DOCTRINE OF FAIR REPRESENTATION, WHICH PROTECTS INDIVIDUALS
AGAINST ARBITRARY UNION CONDUCT, MIGHT BE JEOPARDIZED BY THE NLRB'S
FAILURE TO ACT IN CERTAIN CASES, IF THE PRE-EMPTION DOCTRINE WERE
APPLIED TO OUST THE COURTS OF THEIR TRADITIONAL JURISDICTION TO CURB
ARBITRARY UNION CONDUCT.  PP. 181-183. 

(D)  AS A PRACTICAL MATTER, IN AN EMPLOYEE'S SUIT AGAINST HIS
EMPLOYER FOR BREACH OF CONTRACT UNDER SEC. 301 OF THE LABOR MANAGEMENT
RELATIONS ACT, THE EMPLOYEE MAY WELL FIND IT NECESSARY TO PROVE A
BREACH OF DUTY BY HIS UNION, A FACET OF THE CASE WHICH DOES NOT DESTROY
THE COURT'S JURISDICTION, EVEN IF THE EMPLOYEE JOINS THE UNION AS A
DEFENDANT.  THAT BEING SO, THE RESULT SHOULD BE NO DIFFERENT IF THE
EMPLOYEE SUES THE EMPLOYER AND THE UNION IN SEPARATE ACTIONS.  PP. 183
187. 

(E)  WHERE A BREACH OF DUTY BY THE UNION AND A BREACH OF CONTRACT BY
THE EMPLOYER ARE PROVEN IN A SEC. 301 BREACH-OF-DUTY ACTION, THE COURT
MUST FASHION AN APPROPRIATE REMEDY AGAINST BOTH DEFENDANTS.  PP. 187
188. 

3.  A UNION BREACHES ITS DUTY OF FAIR REPRESENTATION WHEN ITS CONDUCT
TOWARD A MEMBER OF THE DESIGNATED UNIT IS ARBITRARY, DISCRIMINATORY OR
IN BAD FAITH, BUT IT DOES NOT BREACH THAT DUTY MERELY BECAUSE IT
SETTLES A GRIEVANCE SHORT OF ARBITRATION, AND THE MISSOURI SUPREME
COURT ERRED IN UPHOLDING THE JURY'S VERDICT SOLELY ON THE GROUND THAT
THE EVIDENCE SUPPORTED THE EMPLOYEE'S CLAIM OF WRONGFUL DISCHARGE.  PP.
190-193. 

4.  AS A MATTER OF FEDERAL LAW THE EVIDENCE DOES NOT SUPPORT A
VERDICT THAT THE UNION BREACHED ITS DUTY, AS THE EMPLOYEE, WHO HAD NO
ABSOLUTE RIGHT TO HAVE HIS GRIEVANCE ARBITRATED, FAILED TO PROVE
ARBITRARY OR BAD-FAITH CONDUCT BY THE UNION IN PROCESSING HIS
GRIEVANCE.  PP. 193-195. 

5.  THE CLAIMED DAMAGES, WHICH WERE PRIMARILY THOSE SUFFERED AS A
RESULT OF THE EMPLOYER'S ALLEGED BREACH OF CONTRACT, SHOULD NOT HAVE
BEEN ALL CHARGED TO THE UNION, AND, IF LIABILITY WERE FOUND, IT SHOULD
HAVE BEEN APPORTIONED BETWEEN THE EMPLOYER AND THE UNION ACCORDING TO
THE DAMAGES CAUSED BY THE FAULT OF EACH.  PP. 195-198. 

VACA ET AL. V. SIPES, ADMINISTRATOR. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

ON FEBRUARY 13, 1962, BENJAMIN OWENS FILED THIS CLASS ACTION AGAINST
PETITIONERS, AS OFFICERS AND REPRESENTATIVES OF THE NATIONAL
BROTHERHOOD OF PACKINGHOUSE WORKERS (FN1) AND OF ITS KANSAS CITY LOCAL
NO. 12 (THE UNION), IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI. 
OWENS, A UNION MEMBER, ALLEGED THAT HE HAD BEEN DISCHARGED FROM HIS
EMPLOYMENT AT SWIFT & COMPANY'S (SWIFT) KANSAS CITY MEAT PACKING PLANT
IN VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT THEN IN FORCE
BETWEEN SWIFT AND THE UNION, AND THAT THE UNION HAD "ARBITRARILY,
CAPRICIOUSLY AND WITHOUT JUST OR REASONABLE REASON OR CAUSE" REFUSED TO
TAKE HIS GRIEVANCE WITH SWIFT TO ARBITRATION UNDER THE FIFTH STEP OF
THE BARGAINING AGREEMENT'S GRIEVANCE PROCEDURES. 

PETITIONERS' ANSWER INCLUDED THE DEFENSE THAT THE MISSOURI COURTS
LACKED JURISDICTION BECAUSE THE GRAVAMEN OF OWENS' SUIT WAS "ARGUABLY
AND BASICALLY" AN UNFAIR LABOR PRACTICE UNDER SEC. 8(B) OF THE NATIONAL
LABOR RELATIONS ACT (N.L.R.A.), AS AMENDED, 61 STAT. 141, 29 U.S.C.
SEC. 158(B), WITHIN THE EXCLUSIVE JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD (NLRB).  AFTER A JURY TRIAL, A VERDICT WAS RETURNED
AWARDING OWENS $7,000 COMPENSATORY AND $3,300 PUNITIVE DAMAGES.  THE
TRIAL JUDGE SET ASIDE THE VERDICT AND ENTERED JUDGMENT FOR PETITIONERS
ON THE GROUND THAT THE NLRB HAD EXCLUSIVE JURISDICTION OVER THIS
CONTROVERSY, AND THE KANSAS CITY COURT OF APPEALS AFFIRMED.  THE
SUPREME COURT OF MISSOURI REVERSED AND DIRECTED REINSTATEMENT OF THE
JURY'S VERDICT, (FN2) RELYING ON THIS COURT'S DECISIONS IN
INTERNATIONAL ASSN. OF MACHINISTS V. GONZALES, 356 U.S. 617, AND IN
AUTOMOBILE WORKERS V. RUSSELL, 356 U.S. 634.  397 S.W.2D 658.  DURING
THE APPEAL, OWENS DIED AND RESPONDENT, THE ADMINISTRATOR OF OWENS'
ESTATE, WAS SUBSTITUTED.  WE GRANTED CERTIORARI TO CONSIDER WHETHER
EXCLUSIVE JURISDICTION LIES WITH THE NLRB AND, IF NOT, WHETHER THE
FINDING OF UNION LIABILITY AND THE RELIEF AFFORDED OWENS ARE CONSISTENT
WITH GOVERNING PRINCIPLES OF FEDERAL LABOR LAW.  384 U.S. 969.  THE
AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS
(AFL-CIO), SWIFT, AND THE UNITED STATES HAVE FILED AMICUS BRIEFS
SUPPORTING PETITIONERS.  ALTHOUGH WE CONCLUDE THAT STATE COURTS HAVE
JURISDICTION IN THIS TYPE OF CASE, WE HOLD THAT FEDERAL LAW GOVERNS,
THAT THE GOVERNING FEDERAL STANDARDS WERE NOT APPLIED HERE, AND THAT
THE JUDGMENT OF THE SUPREME COURT OF MISSOURI MUST ACCORDINGLY BE
REVERSED. 

I. 

IN MID-1959, OWENS, A LONG-TIME HIGH BLOOD PRESSURE PATIENT, BECAME
SICK AND ENTERED A HOSPITAL ON SICK LEAVE FROM HIS EMPLOYMENT WITH
SWIFT.  AFTER A LONG REST DURING WHICH HIS WEIGHT AND BLOOD PRESSURE
WERE REDUCED, OWENS WAS CERTIFIED BY HIS FAMILY PHYSICIAN AS FIT TO
RESUME HIS HEAVY WORK IN THE PACKING PLANT.  HOWEVER, SWIFT'S COMPANY
DOCTOR EXAMINED OWENS UPON HIS RETURN AND CONCLUDED THAT HIS BLOOD
PRESSURE WAS TOO HIGH TO PERMIT REINSTATEMENT.  AFTER SECURING A SECOND
AUTHORIZATION FROM ANOTHER OUTSIDE DOCTOR, OWENS RETURNED TO THE PLANT,
AND A NURSE PERMITTED HIM TO RESUME WORK ON JANUARY 6, 1960.  HOWEVER,
ON JANUARY 8, WHEN THE DOCTOR DISCOVERED OWENS' RETURN, HE WAS
PERMANENTLY DISCHARGED ON THE GROUND OF POOR HEALTH. 

ARMED WITH HIS MEDICAL EVIDENCE OF FITNESS, OWENS THEN SOUGHT THE
UNION'S HELP IN SECURING REINSTATEMENT, AND A GRIEVANCE WAS FILED WITH
SWIFT ON HIS BEHALF.  BY MID-NOVEMBER 1960, THE GRIEVANCE HAD BEEN
PROCESSED THROUGH THE THIRD AND INTO THE FOURTH STEP OF THE GRIEVANCE
PROCEDURE ESTABLISHED BY THE COLLECTIVE BARGAINING AGREEMENT.  (FN3)
SWIFT ADHERED TO ITS POSITION THAT OWENS' POOR HEALTH JUSTIFIED HIS
DISCHARGE, REJECTING NUMEROUS MEDICAL REPORTS OF REDUCED BLOOD PRESSURE
PROFFERED BY OWENS AND BY THE UNION.  SWIFT CLAIMED THAT THESE REPORTS
WERE NOT BASED UPON SUFFICIENTLY THOROUGH MEDICAL TESTS. 

ON FEBRUARY 6, 1961, THE UNION SENT OWENS TO A NEW DOCTOR AT UNION
EXPENSE "TO SEE IF WE COULD GET SOME BETTER MEDICAL EVIDENCE SO THAT WE
COULD GO TO ARBITRATION WITH HIS CASE."  R., AT 107.  THIS EXAMINATION
DID NOT SUPPORT OWENS' POSITION.  WHEN THE UNION RECEIVED THE REPORT,
ITS EXECUTIVE BOARD VOTED NOT TO TAKE THE OWENS GRIEVANCE TO
ARBITRATION BECAUSE OF INSUFFICIENT MEDICAL EVIDENCE.  UNION OFFICERS
SUGGESTED TO OWENS THAT HE ACCEPT SWIFT'S OFFER OF REFERRAL TO A
REHABILITATION CENTER, AND THE GRIEVANCE WAS SUSPENDED FOR THAT
PURPOSE.  OWENS REJECTED THIS ALTERNATIVE AND DEMANDED THAT THE UNION
TAKE HIS GRIEVANCE TO ARBITRATION, BUT THE UNION REFUSED.  WITH HIS
CONTRACTUAL REMEDIES THUS STALLED AT THE FOURTH STEP, OWENS BROUGHT
THIS SUIT.  THE GRIEVANCE WAS FINALLY DISMISSED BY THE UNION AND SWIFT
SHORTLY BEFORE TRIAL BEGAN IN JUNE 1964.  (FN4) 

IN HIS CHARGE TO THE JURY, THE TRIAL JUDGE INSTRUCTED THAT
PETITIONERS WOULD BE LIABLE IF SWIFT HAD WRONGFULLY DISCHARGED OWENS
AND IF THE UNION HAD "ARBITRARILY  ...  AND WITHOUT JUST CAUSE OR
EXCUSE  ...  REFUSED" TO PRESS OWENS' GRIEVANCE TO ARBITRATION. 
PUNITIVE DAMAGES COULD ALSO BE AWARDED, THE TRIAL JUDGE CHARGED, IF THE
UNION'S CONDUCT WAS "WILLFUL, WANTON AND MALICIOUS."  HOWEVER, THE JURY
MUST RETURN A VERDICT FOR THE DEFENDANTS, THE JUDGE INSTRUCTED, "IF YOU
FIND AND BELIEVE FROM THE EVIDENCE THAT THE UNION AND ITS
REPRESENTATIVES ACTED REASONABLY AND IN GOOD FAITH IN THE HANDLING AND
PROCESSING OF THE GRIEVANCE OF THE PLAINTIFF."  R., AT 161-162.  THE
JURY THEN RETURNED THE GENERAL VERDICT FOR OWENS WHICH EVENTUALLY WAS
REINSTATED BY THE MISSOURI SUPREME COURT. 

                                              II. 

PETITIONERS CHALLENGE THE JURISDICTION OF THE MISSOURI COURTS ON THE
GROUND THAT THE ALLEGED CONDUCT OF THE UNION WAS ARGUABLY AN UNFAIR
LABOR PRACTICE AND WITHIN THE EXCLUSIVE JURISDICTION OF THE NLRB. 
PETITIONERS RELY ON MIRANDA FUEL CO., 140 N.L.R.B. 181 (1962),
ENFORCEMENT DENIED, 326 F.2D 172 (C.A.2D CIR. 1963), WHERE A SHARPLY
DIVIDED BOARD HELD FOR THE FIRST TIME THAT A UNION'S BREACH OF ITS
STATUTORY DUTY OF FAIR REPRESENTATION VIOLATES N.L.R.A. SEC. 8(B), AS
AMENDED.  WITH THE NLRB'S ADOPTION OF MIRANDA FUEL, PETITIONERS ARGUE,
THE BROAD PRE-EMPTION DOCTRINE DEFINED IN SAN DIEGO BUILDING TRADES
COUNCIL V. GARMON, 359 U.S. 236, BECOMES APPLICABLE.  FOR THE REASONS
WHICH FOLLOW, WE REJECT THIS ARGUMENT. 

IT IS NOW WELL ESTABLISHED THAT, AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF THE EMPLOYEES IN OWENS' BARGAINING UNIT, THE UNION
HAD A STATUTORY DUTY FAIRLY TO REPRESENT ALL OF THOSE EMPLOYEES, BOTH
IN ITS COLLECTIVE BARGAINING WITH SWIFT, SEE FORD MOTOR CO. V. HUFFMAN,
345 U.S. 330; SYRES V. OIL WORKERS INTERNATIONAL UNION, 350 U.S. 892,
AND IN ITS ENFORCEMENT OF THE RESULTING COLLECTIVE BARGAINING
AGREEMENT, SEE HUMPHREY V. MOORE, 375 U.S. 335.  THE STATUTORY DUTY OF
FAIR REPRESENTATION WAS DEVELOPED OVER 20 YEARS AGO IN A SERIES OF
CASES INVOLVING ALLEGED RACIAL DISCRIMINATION BY UNIONS CERTIFIED AS
EXCLUSIVE BARGAINING REPRESENTATIVES UNDER THE RAILWAY LABOR ACT, SEE
STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192; TUNSTALL V. BROTHERHOOD
OF LOCOMOTIVE FIREMEN, 323 U.S. 210, AND WAS SOON EXTENDED TO UNIONS
CERTIFIED UNDER THE N.L.R.A., SEE FORD MOTOR CO. V. HUFFMAN, SUPRA.
UNDER THIS DOCTRINE, THE EXCLUSIVE AGENT'S STATUTORY AUTHORITY TO
REPRESENT ALL MEMBERS OF A DESIGNATED UNIT INCLUDES A STATUTORY
OBLIGATION TO SERVE THE INTERESTS OF ALL MEMBERS WITHOUT HOSTILITY OR
DISCRIMINATION TOWARD ANY, TO EXERCISE ITS DISCRETION WITH COMPLETE
GOOD FAITH AND HONESTY, AND TO AVOID ARBITRARY CONDUCT.  HUMPHREY V.
MOORE, 375 U.S., AT 342.  IT IS OBVIOUS THAT OWENS' COMPLAINT ALLEGED A
BREACH BY THE UNION OF A DUTY GROUNDED IN FEDERAL STATUTES, AND THAT
FEDERAL LAW THEREFORE GOVERNS HIS CAUSE OF ACTION.  E.G., FORD MOTOR
CO. V. HUFFMAN, SUPRA.

ALTHOUGH N.L.R.A. SEC. 8(B) WAS ENACTED IN 1947, THE NLRB DID NOT
UNTIL MIRANDA FUEL INTERPRET A BREACH OF A UNION'S DUTY OF FAIR
REPRESENTATION AS AN UNFAIR LABOR PRACTICE.  IN MIRANDA FUEL, THE
BOARD'S MAJORITY HELD THAT N.L.R.A. SEC. 7 GIVES EMPLOYEES "THE RIGHT
TO BE FREE FROM UNFAIR OR IRRELEVANT OR INVIDIOUS TREATMENT BY THEIR
EXCLUSIVE BARGAINING AGENT IN MATTERS AFFECTING THEIR EMPLOYMENT," AND
"THAT SECTION 8(B)(1)(A) OF THE ACT ACCORDINGLY PROHIBITS LABOR
ORGANIZATIONS, WHEN ACTING IN A STATUTORY REPRESENTATIVE CAPACITY, FROM
TAKING ACTION AGAINST ANY EMPLOYEE UPON CONSIDERATIONS OR
CLASSIFICATIONS WHICH ARE IRRELEVANT, INVIDIOUS, OR UNFAIR."  140
N.L.R.B., AT 185.  THE BOARD ALSO HELD THAT AN EMPLOYER WHO
"PARTICIPATES" IN SUCH ARBITRARY UNION CONDUCT VIOLATES SEC. 8(A)(1),
AND THAT THE EMPLOYER AND THE UNION MAY VIOLATE SECS. 8(A)(3) AND
8(B)(2), RESPECTIVELY, "WHEN, FOR ARBITRARY OR IRRELEVANT REASONS OR
UPON THE BASIS OF AN UNFAIR CLASSIFICATION, THE UNION ATTEMPTS TO CAUSE
OR DOES CAUSE AN EMPLOYER TO DEROGATE THE EMPLOYMENT STATUS OF AN
EMPLOYEE."  (FN5)  ID., AT 186. 

THE BOARD'S MIRANDA FUEL DECISION WAS DENIED ENFORCEMENT BY A DIVIDED
SECOND CIRCUIT, 326 F.2D 172 (1963).  HOWEVER, IN LOCAL 12, UNITED
RUBBER WORKERS V. N.L.R.B., 368 F.2D 12, THE FIFTH CIRCUIT UPHELD THE
BOARD'S MIRANDA FUEL DOCTRINE IN AN OPINION SUGGESTING THAT THE BOARD'S
APPROACH WILL PRE-EMPT JUDICIAL COGNIZANCE OF SOME FAIR REPRESENTATION
DUTY SUITS.  IN LIGHT OF THESE DEVELOPMENTS, PETITIONERS ARGUE THAT
OWENS' STATE COURT ACTION WAS BASED UPON UNION CONDUCT THAT IS ARGUABLY
PROSCRIBED BY N.L.R.A. SEC. 8(B), WAS POTENTIALLY ENFORCEABLE BY THE
NLRB, AND WAS THEREFORE PRE-EMPTED UNDER THE GARMON LINE OF DECISIONS. 

A. IN GARMON, THIS COURT RECOGNIZED THAT THE BROAD POWERS CONFERRED
BY CONGRESS UPON THE NATIONAL LABOR RELATIONS BOARD TO INTERPRET AND TO
ENFORCE THE COMPLEX LABOR MANAGEMENT RELATIONS ACT (L.M.R.A.) 
NECESSARILY IMPLY THAT POTENTIALLY CONFLICTING "RULES OF LAW, OF
REMEDY, AND OF ADMINISTRATION" CANNOT BE PERMITTED TO OPERATE.  359
U.S., AT 242.  IN ENACTING THE NATIONAL LABOR RELATIONS ACT AND LATER
THE LABOR MANAGEMENT RELATIONS ACT: 

"CONGRESS DID NOT MERELY LAY DOWN A SUBSTANTIVE RULE OF LAW TO BE
ENFORCED BY ANY TRIBUNAL COMPETENT TO APPLY LAW GENERALLY TO THE
PARTIES.  IT WENT ON TO CONFIDE PRIMARY INTERPRETATION AND APPLICATION
OF ITS RULES TO A SPECIFIC AND SPECIALLY CONSTITUTED TRIBUNAL  ...  .
CONGRESS EVIDENTLY CONSIDERED THAT CENTRALIZED ADMINISTRATION OF
SPECIALLY DESIGNED PROCEDURES WAS NECESSARY TO OBTAIN UNIFORM
APPLICATION OF ITS SUBSTANTIVE RULES AND TO AVOID THESE DIVERSITIES AND
CONFLICTS LIKELY TO RESULT FROM A VARIETY OF LOCAL PROCEDURES AND
ATTITUDES TOWARD LABOR CONTROVERSIES  ...  .  A MULTIPLICITY OF
TRIBUNALS AND A DIVERSITY OF PROCEDURES ARE QUITE AS APT TO PRODUCE
INCOMPATIBLE OR CONFLICTING ADJUDICATIONS AS ARE DIFFERENT RULES OF
SUBSTANTIVE LAW."  GARNER V. TEAMSTERS UNION, 346 U.S. 485, 490-491. 

CONSEQUENTLY, AS A GENERAL RULE, NEITHER STATE NOR FEDERAL COURTS
HAVE JURISDICTION OVER SUITS DIRECTLY INVOLVING "ACTIVITY WHICH IS
ARGUABLY SUBJECT TO SEC. 7 OR SEC. 8 OF THE ACT."  SAN DIEGO BUILDING
TRADES COUNCIL V. GARMON, 359 U.S., AT 245. 

THIS PRE-EMPTION DOCTRINE, HOWEVER, HAS NEVER BEEN RIGIDLY APPLIED TO
CASES WHERE IT COULD NOT FAIRLY BE INFERRED THAT CONGRESS INTENDED
EXCLUSIVE JURISDICTION TO LIE WITH THE NLRB.  CONGRESS ITSELF HAS
CARVED OUT EXCEPTIONS TO THE BOARD'S EXCLUSIVE JURISDICTION:  SECTION
303 OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 158, 29
U.S.C. SEC. 187, EXPRESSLY PERMITS ANYONE INJURED BY A VIOLATION OF
N.L.R.A. SEC. 8(B)(4) TO RECOVER DAMAGES IN A FEDERAL COURT EVEN THOUGH
SUCH UNFAIR LABOR PRACTICES ARE ALSO REMEDIABLE BY THE BOARD; SEC. 301
OF THAT ACT, 61 STAT. 156, 29 U.S.C. SEC. 185, PERMITS SUITS FOR BREACH
OF A COLLECTIVE BARGAINING AGREEMENT REGARDLESS OF WHETHER THE
PARTICULAR BREACH IS ALSO AN UNFAIR LABOR PRACTICE WITHIN THE
JURISDICTION OF THE BOARD (SEE SMITH V. EVENING NEWS ASSN., 371 U.S.
195); AND N.L.R.A. SEC. 14, AS AMENDED BY TITLE VII, SEC. 701(A) OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 541, 29
U.S.C. SEC. 164(C), PERMITS STATE AGENCIES AND COURTS TO ASSUME
JURISDICTION "OVER LABOR DISPUTES OVER WHICH THE BOARD DECLINES,
PURSUANT TO PARAGRAPH (1) OF THIS SUBSECTION, TO ASSERT JURISDICTION"
(COMPARE GUSS V. UTAH LABOR BOARD, 353 U.S. 1). 

IN ADDITION TO THESE CONGRESSIONAL EXCEPTIONS, THIS COURT HAS REFUSED
TO HOLD STATE REMEDIES PRE-EMPTED "WHERE THE ACTIVITY REGULATED WAS A
MERELY PERIPHERAL CONCERN OF THE LABOR MANAGEMENT RELATIONS ACT  ...
OR TOUCHED INTERESTS SO DEEPLY ROOTED IN LOCAL FEELING AND
RESPONSIBILITY THAT, IN THE ABSENCE OF COMPELLING CONGRESSIONAL
DIRECTION, WE COULD NOT INFER THAT CONGRESS HAS DEPRIVED THE STATES OF
THE POWER TO ACT."  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359
U.S., AT 243-244.   SEE, E.G., LINN V. PLANT GUARD WORKERS, 383 U.S. 53
(LIBEL); AUTOMOBILE WORKERS V. RUSSELL, 356 U.S. 634 (VIOLENCE);
INTERNATIONAL ASSN. OF MACHINISTS V. GONZALES, 356 U.S. 617 (WRONGFUL
EXPULSION FROM UNION MEMBERSHIP); ALLEN-BRADLEY LOCAL V. WISCONSIN
EMPLOYMENT RELATIONS BOARD, 315 U.S. 740 (MASS PICKETING).  SEE ALSO
HANNA MINING CO. V. MARINE ENGINEERS BENEFICIAL ASSN., 382 U.S. 181. 
WHILE THESE EXCEPTIONS IN NO WAY UNDERMINE THE VITALITY OF THE PRE
EMPTION RULE WHERE APPLICABLE, THEY DEMONSTRATE THAT THE DECISION TO
PRE-EMPT FEDERAL AND STATE COURT JURISDICTION OVER A GIVEN CLASS OF
CASES MUST DEPEND UPON THE NATURE OF THE PARTICULAR INTERESTS BEING
ASSERTED AND THE EFFECT UPON THE ADMINISTRATION OF NATIONAL LABOR
POLICIES OF CONCURRENT JUDICIAL AND ADMINISTRATIVE REMEDIES.    A
PRIMARY JUSTIFICATION FOR THE PRE-EMPTION DOCTRINE - THE NEED TO AVOID
CONFLICTING RULES OF SUBSTANTIVE LAW IN THE LABOR RELATIONS AREA AND
THE DESIRABILITY OF LEAVING THE DEVELOPMENT OF SUCH RULES TO THE
ADMINISTRATIVE AGENCY CREATED BY CONGRESS FOR THAT PURPOSE - IS NOT
APPLICABLE TO CASES INVOLVING ALLEGED BREACHES OF THE UNION'S DUTY OF
FAIR REPRESENTATION.  THE DOCTRINE WAS JUDICIALLY DEVELOPED IN STEELE
AND ITS PROGENY, AND SUITS ALLEGING BREACH OF THE DUTY REMAINED
JUDICIALLY COGNIZABLE LONG AFTER THE NLRB WAS GIVEN UNFAIR LABOR
PRACTICE JURISDICTION OVER UNION ACTIVITIES BY THE L.M.R.A.  (FN6)
MOREOVER, WHEN THE BOARD DECLARED IN MIRANDA FUEL THAT A UNION'S BREACH
OF ITS DUTY OF FAIR REPRESENTATION WOULD HENCEFORTH BE TREATED AS AN
UNFAIR LABOR PRACTICE, THE BOARD ADOPTED AND APPLIED THE DOCTRINE AS IT
HAD BEEN DEVELOPED BY THE FEDERAL COURTS.  SEE 140 N.L.R.B., AT 184
186.  FINALLY, AS THE DISSENTING BOARD MEMBERS IN MIRANDA FUEL HAVE
POINTED OUT, FAIR REPRESENTATION DUTY SUITS OFTEN REQUIRE REVIEW OF THE
SUBSTANTIVE POSITIONS TAKEN AND POLICIES PURSUED BY A UNION IN ITS
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT AND IN ITS HANDLING OF
THE GRIEVANCE MACHINERY; AS THESE MATTERS ARE NOT NORMALLY WITHIN THE
BOARD'S UNFAIR LABOR PRACTICE JURISDICTION, IT CAN BE DOUBTED WHETHER
THE BOARD BRINGS SUBSTANTIALLY GREATER EXPERTISE TO BEAR ON THESE
PROBLEMS THAN DO THE COURTS, WHICH HAVE BEEN ENGAGED IN THIS TYPE OF
REVIEW SINCE THE STEELE DECISION.  (FN7) 

IN ADDITION TO THE ABOVE CONSIDERATIONS, THE UNIQUE INTERESTS SERVED
BY THE DUTY OF FAIR REPRESENTATION DOCTRINE HAVE A PROFOUND EFFECT, IN
OUR OPINION, ON THE APPLICABILITY OF THE PRE-EMPTION RULE TO THIS CLASS
OF CASES.  THE FEDERAL LABOR LAWS SEEK TO PROMOTE INDUSTRIAL PEACE AND
THE IMPROVEMENT OF WAGES AND WORKING CONDITIONS BY FOSTERING A SYSTEM
OF EMPLOYEE ORGANIZATION AND COLLECTIVE BARGAINING.  SEE N.L.R.A. SEC.
1, AS AMENDED, 61 STAT. 136, 29 U.S.C. SEC. 151.  THE COLLECTIVE
BARGAINING SYSTEM AS ENCOURAGED BY CONGRESS AND ADMINISTERED BY THE
NLRB OF NECESSITY SUBORDINATES THE INTERESTS OF AN INDIVIDUAL EMPLOYEE
TO THE COLLECTIVE INTERESTS OF ALL EMPLOYEES IN A BARGAINING UNIT. 
SEE, E.G., J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332.  THIS COURT
RECOGNIZED IN STEELE THAT THE CONGRESSIONAL GRANT OF POWER TO A UNION
TO ACT AS EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, WITH ITS
CORRESPONDING REDUCTION IN THE INDIVIDUAL RIGHTS OF THE EMPLOYEES SO
REPRESENTED, WOULD RAISE GRAVE CONSTITUTIONAL PROBLEMS IF UNIONS WERE
FREE TO EXERCISE THIS POWER TO FURTHER RACIAL DISCRIMINATION.  323
U.S., AT 198-199.  SINCE THAT LANDMARK DECISION, THE DUTY OF FAIR
REPRESENTATION HAS STOOD AS A BULWARK TO PREVENT ARBITRARY UNION
CONDUCT AGAINST INDIVIDUALS STRIPPED OF TRADITIONAL FORMS OF REDRESS BY
THE PROVISIONS OF FEDERAL LABOR LAW.  WERE WE TO HOLD, AS PETITIONERS
AND THE GOVERNMENT URGE, THAT THE COURTS ARE FORECLOSED BY THE NLRB'S
MIRANDA FUEL DECISION FROM THIS TRADITIONAL SUPERVISORY JURISDICTION,
THE INDIVIDUAL EMPLOYEE INJURED BY ARBITRARY OR DISCRIMINATORY UNION
CONDUCT COULD NO LONGER BE ASSURED OF IMPARTIAL REVIEW OF HIS
COMPLAINT, SINCE THE BOARD'S GENERAL COUNSEL HAS UNREVIEWABLE
DISCRETION TO REFUSE TO INSTITUTE AN UNFAIR LABOR PRACTICE COMPLAINT. 
SEE UNITED ELECTRICAL CONTRACTORS ASSN. V. ORDMAN, 366 F.2D 776, CERT.
DENIED, 385 U.S. 1026.  (FN8)  THE EXISTENCE OF EVEN A SMALL GROUP OF
CASES IN WHICH THE BOARD WOULD BE UNWILLING OR UNABLE TO REMEDY A
UNION'S BREACH OF DUTY WOULD FRUSTRATE THE BASIC PURPOSES UNDERLYING
THE DUTY OF FAIR REPRESENTATION DOCTRINE.  FOR THESE REASONS, WE CANNOT
ASSUME FROM THE NLRB'S TARDY ASSUMPTION OF JURISDICTION IN THESE CASES
THAT CONGRESS, WHEN IT ENACTED N.L.R.A. SEC. 8(B) IN 1947, INTENDED TO
OUST THE COURTS OF THEIR TRADITIONAL JURISDICTION TO CURB ARBITRARY
CONDUCT BY THE INDIVIDUAL EMPLOYEE'S STATUTORY REPRESENTATIVE. 

B. THERE ARE ALSO SOME INTENSELY PRACTICAL CONSIDERATIONS WHICH
FORECLOSE PRE-EMPTION OF JUDICIAL COGNIZANCE OF FAIR REPRESENTATION
DUTY SUITS, CONSIDERATIONS WHICH EMERGE FROM THE INTRICATE RELATIONSHIP
BETWEEN THE DUTY OF FAIR REPRESENTATION AND THE ENFORCEMENT OF
COLLECTIVE BARGAINING CONTRACTS.  FOR THE FACT IS THAT THE QUESTION OF
WHETHER A UNION HAS BREACHED ITS DUTY OF FAIR REPRESENTATION WILL IN
MANY CASES BE A CRITICAL ISSUE IN A SUIT UNDER L.M.R.A. SEC. 301
CHARGING AN EMPLOYER WITH A BREACH OF CONTRACT.  TO ILLUSTRATE, LET US
ASSUME A COLLECTIVE BARGAINING AGREEMENT THAT LIMITS DISCHARGES TO
THOSE FOR GOOD CAUSE AND THAT CONTAINS NO GRIEVANCE, ARBITRATION OR
OTHER PROVISIONS PURPORTING TO RESTRICT ACCESS TO THE COURTS.  IF AN
EMPLOYEE IS DISCHARGED WITHOUT CAUSE, EITHER THE UNION OR THE EMPLOYEE
MAY SUE THE EMPLOYER UNDER L.M.R.A. SEC. 301.  UNDER THIS SECTION,
COURTS HAVE JURISDICTION OVER SUITS TO ENFORCE COLLECTIVE BARGAINING
AGREEMENTS EVEN THOUGH THE CONDUCT OF THE EMPLOYER WHICH IS CHALLENGED
AS A BREACH OF CONTRACT IS ALSO ARGUABLY AN UNFAIR LABOR PRACTICE
WITHIN THE JURISDICTION OF THE NLRB.  GARMON AND LIKE CASES HAVE NO
APPLICATION TO SEC. 301 SUITS.  SMITH V. EVENING NEWS ASSN., 371 U.S.
195. 

THE RULE IS THE SAME WITH REGARD TO PRE-EMPTION WHERE THE BARGAINING
AGREEMENT CONTAINS GRIEVANCE AND ARBITRATION PROVISIONS WHICH ARE
INTENDED TO PROVIDE THE EXCLUSIVE REMEDY FOR BREACH OF CONTRACT
CLAIMS.  (FN9) IF AN EMPLOYEE IS DISCHARGED WITHOUT CAUSE IN VIOLATION
OF SUCH AN AGREEMENT, THAT THE EMPLOYER'S CONDUCT MAY BE AN UNFAIR
LABOR PRACTICE DOES NOT PRECLUDE A SUIT BY THE UNION (FN10) AGAINST THE
EMPLOYER TO COMPEL ARBITRATION OF THE EMPLOYEE'S GRIEVANCE, THE
ADJUDICATION OF THE CLAIM BY THE ARBITRATOR, OR A SUIT TO ENFORCE THE
RESULTING ARBITRATION AWARD.  SEE, E.G., STEELWORKERS V. AMERICAN MFG.
CO., 363 U.S. 564. 

HOWEVER, IF THE WRONGFULLY DISCHARGED EMPLOYEE HIMSELF RESORTS TO THE
COURTS BEFORE THE GRIEVANCE PROCEDURES HAVE BEEN FULLY EXHAUSTED, THE
EMPLOYER MAY WELL DEFEND ON THE GROUND THAT THE EXCLUSIVE REMEDIES
PROVIDED BY SUCH A CONTRACT HAVE NOT BEEN EXHAUSTED.  SINCE THE
EMPLOYEE'S CLAIM IS BASED UPON BREACH OF THE COLLECTIVE BARGAINING
AGREEMENT, HE IS BOUND BY TERMS OF THAT AGREEMENT WHICH GOVERN THE
MANNER IN WHICH CONTRACTUAL RIGHTS MAY BE ENFORCED.  FOR THIS REASON,
IT IS SETTLED THAT THE EMPLOYEE MUST AT LEAST ATTEMPT TO EXHAUST
EXCLUSIVE GRIEVANCE AND ARBITRATION PROCEDURES ESTABLISHED BY THE
BARGAINING AGREEMENT.  REPUBLIC STEEL CORP. V. MADDOX, 379 U.S. 650. 
HOWEVER, BECAUSE THESE CONTRACTUAL REMEDIES HAVE BEEN DEVISED AND ARE
OFTEN CONTROLLED BY THE UNION AND THE EMPLOYER, THEY MAY WELL PROVE
UNSATISFACTORY OR UNWORKABLE FOR THE INDIVIDUAL GRIEVANT.  THE PROBLEM
THEN IS TO DETERMINE UNDER WHAT CIRCUMSTANCES THE INDIVIDUAL EMPLOYEE
MAY OBTAIN JUDICIAL REVIEW OF HIS BREACH-OF-CONTRACT CLAIM DESPITE HIS
FAILURE TO SECURE RELIEF THROUGH THE CONTRACTUAL REMEDIAL PROCEDURES. 

AN OBVIOUS SITUATION IN WHICH THE EMPLOYEE SHOULD NOT BE LIMITED TO
THE EXCLUSIVE REMEDIAL PROCEDURES ESTABLISHED BY THE CONTRACT OCCURS
WHEN THE CONDUCT OF THE EMPLOYER AMOUNTS TO A REPUDIATION OF THOSE
CONTRACTUAL PROCEDURES.  CF. DRAKE BAKERIES V. BAKERY WORKERS, 370 U.S.
254, 260-263.  SEE GENERALLY 6A CORBIN, CONTRACTS SEC. 1443 (1962).  IN
SUCH A SITUATION (AND THERE MAY OF COURSE BE OTHERS), THE EMPLOYER IS
ESTOPPED BY HIS OWN CONDUCT TO RELY ON THE UNEXHAUSTED GRIEVANCE AND
ARBITRATION PROCEDURES AS A DEFENSE TO THE EMPLOYEE'S CAUSE OF ACTION. 

WE THINK THAT ANOTHER SITUATION WHEN THE EMPLOYEE MAY SEEK JUDICIAL
ENFORCEMENT OF HIS CONTRACTUAL RIGHTS ARISES IF, AS IS TRUE HERE, THE
UNION HAS SOLE POWER UNDER THE CONTRACT TO INVOKE THE HIGHER STAGES OF
THE GRIEVANCE PROCEDURE, AND IF, AS IS ALLEGED HERE, THE EMPLOYEE
PLAINTIFF HAS BEEN PREVENTED FROM EXHAUSTING HIS CONTRACTUAL REMEDIES
BY THE UNION'S WRONGFUL REFUSAL TO PROCESS THE GRIEVANCE.  IT IS TRUE
THAT THE EMPLOYER IN SUCH A SITUATION MAY HAVE DONE NOTHING TO PREVENT
EXHAUSTION OF THE EXCLUSIVE CONTRACTUAL REMEDIES TO WHICH HE AGREED IN
THE COLLECTIVE BARGAINING AGREEMENT.  BUT THE EMPLOYER HAS COMMITTED A
WRONGFUL DISCHARGE IN BREACH OF THAT AGREEMENT, A BREACH WHICH COULD BE
REMEDIED THROUGH THE GRIEVANCE PROCESS TO THE EMPLOYEE-PLAINTIFF'S
BENEFIT WERE IT NOT FOR THE UNION'S BREACH OF ITS STATUTORY DUTY OF
FAIR REPRESENTATION TO THE EMPLOYEE.  TO LEAVE THE EMPLOYEE REMEDILESS
IN SUCH CIRCUMSTANCES WOULD, IN OUR OPINION, BE A GREAT INJUSTICE.  WE
CANNOT BELIEVE THAT CONGRESS, IN CONFERRING UPON EMPLOYERS AND UNIONS
THE POWER TO ESTABLISH EXCLUSIVE GRIEVANCE PROCEDURES, INTENDED TO
CONFER UPON UNIONS SUCH UNLIMITED DISCRETION TO DEPRIVE INJURED
EMPLOYEES OF ALL REMEDIES FOR BREACH OF CONTRACT.  NOR DO WE THINK THAT
CONGRESS INTENDED TO SHIELD EMPLOYERS FROM THE NATURAL CONSEQUENCES OF
THEIR BREACHES OF BARGAINING AGREEMENTS BY WRONGFUL UNION CONDUCT IN
THE ENFORCEMENT OF SUCH AGREEMENTS.  CF. RICHARDSON V. TEXAS & N.O.R.
CO., 242 F.2D 230, 235-236 (C.A. 5TH CIR.). 

FOR THESE REASONS, WE THINK THE WRONGFULLY DISCHARGED EMPLOYEE MAY
BRING AN ACTION AGAINST HIS EMPLOYER IN THE FACE OF A DEFENSE BASED
UPON THE FAILURE TO EXHAUST CONTRACTUAL REMEDIES, PROVIDED THE EMPLOYEE
CAN PROVE THAT THE UNION AS BARGAINING AGENT BREACHED ITS DUTY OF FAIR
REPRESENTATION IN ITS HANDLING OF THE EMPLOYEE'S GRIEVANCE.  (FN11)  WE
MAY ASSUME FOR PRESENT PURPOSES THAT SUCH A BREACH OF DUTY BY THE UNION
IS AN UNFAIR LABOR PRACTICE, AS THE NLRB AND THE FIFTH CIRCUIT HAVE
HELD.  THE EMPLOYEE'S SUIT AGAINST THE EMPLOYER, HOWEVER, REMAINS A
SEC. 301 SUIT, AND THE JURISDICTION OF THE COURTS IS NO MORE DESTROYED
BY THE FACT THAT THE EMPLOYEE, AS PART AND PARCEL OF HIS SEC. 301
ACTION, FINDS IT NECESSARY TO PROVE AN UNFAIR LABOR PRACTICE BY THE
UNION, THAN IT IS BY THE FACT THAT THE SUIT MAY INVOLVE AN UNFAIR LABOR
PRACTICE BY THE EMPLOYER HIMSELF.  THE COURT IS FREE TO DETERMINE
WHETHER THE EMPLOYEE IS BARRED BY THE ACTIONS OF HIS UNION
REPRESENTATIVE, AND, IF NOT, TO PROCEED WITH THE CASE.  AND IF, TO
FACILITATE HIS CASE, THE EMPLOYEE JOINS THE UNION AS A DEFENDANT, THE
SITUATION IS NOT SUBSTANTIALLY CHANGED.  THE ACTION IS STILL A SEC. 301
SUIT, AND THE JURISDICTION OF THE COURTS IS NOT PRE-EMPTED UNDER THE
GARMON PRINCIPLE.  THIS, AT THE VERY LEAST, IS THE HOLDING OF HUMPHREY
V. MOORE, SUPRA, WITH RESPECT TO PRE-EMPTION, AS PETITIONERS RECOGNIZE
IN THEIR BRIEF.  AND, INSOFAR AS ADJUDICATION OF THE UNION'S BREACH OF
DUTY IS CONCERNED, THE RESULT SHOULD BE NO DIFFERENT IF THE EMPLOYEE,
AS OWENS DID HERE, SUES THE EMPLOYER AND THE UNION IN SEPARATE
ACTIONS.  THERE WOULD BE VERY LITTLE TO COMMEND A RULE WHICH WOULD
PERMIT THE MISSOURI COURTS TO ADJUDICATE THE UNION'S CONDUCT IN AN
ACTION AGAINST SWIFT BUT NOT IN AN ACTION AGAINST THE UNION ITSELF. 

FOR THE ABOVE REASONS, IT IS OBVIOUS THAT THE COURTS WILL BE
COMPELLED TO PASS UPON WHETHER THERE HAS BEEN A BREACH OF THE DUTY OF
FAIR REPRESENTATION IN THE CONTEXT OF MANY SEC. 301 BREACH-OF-CONTRACT
ACTIONS.  IF A BREACH OF DUTY BY THE UNION AND A BREACH OF CONTRACT BY
THE EMPLOYER ARE PROVEN, THE COURT MUST FASHION AN APPROPRIATE REMEDY. 
PRESUMABLY, IN AT LEAST SOME CASES, THE UNION'S BREACH OF DUTY WILL
HAVE ENHANCED OR CONTRIBUTED TO THE EMPLOYEE'S INJURY.  WHAT POSSIBLE
SENSE COULD THERE BE IN A RULE WHICH WOULD PERMIT A COURT THAT HAS
LITIGATED THE FAULT OF EMPLOYER AND UNION TO FASHION A REMEDY ONLY WITH
RESPECT TO THE EMPLOYER?  UNDER SUCH A RULE, EITHER THE EMPLOYER WOULD
BE COMPELLED BY THE COURT TO PAY FOR THE UNION'S WRONG - SLIGHT
DETERRENCE, INDEED, TO FUTURE UNION MISCONDUCT - OR THE INJURED
EMPLOYEE WOULD BE FORCED TO GO TO TWO TRIBUNALS TO REPAIR A SINGLE
INJURY.  MOREOVER, THE BOARD WOULD BE COMPELLED IN MANY CASES EITHER TO
REMEDY INJURIES ARISING OUT OF A BREACH OF CONTRACT, A TASK WHICH
CONGRESS HAS NOT ASSIGNED TO IT, OR TO LEAVE THE INDIVIDUAL EMPLOYEE
WITHOUT REMEDY FOR THE UNION'S WRONG.  (FN12)  GIVEN THE STRONG REASONS
FOR NOT PRE-EMPTING DUTY OF FAIR REPRESENTATION SUITS IN GENERAL, AND
THE FACT THAT THE COURTS IN MANY SEC. 301 SUITS MUST ADJUDICATE WHETHER
THE UNION HAS BREACHED ITS DUTY, WE CONCLUDE THAT THE COURTS MAY ALSO
FASHION REMEDIES FOR SUCH A BREACH OF DUTY. 

IT FOLLOWS FROM THE ABOVE THAT THE MISSOURI COURTS HAD JURISDICTION
IN THIS CASE.  OF COURSE, IT IS QUITE ANOTHER PROBLEM TO DETERMINE WHAT
REMEDIES MAY BE AVAILABLE AGAINST THE UNION IF A BREACH OF DUTY IS
PROVEN.  SEE PART IV, INFRA.  BUT THE UNIQUE ROLE PLAYED BY THE DUTY OF
FAIR REPRESENTATION DOCTRINE IN THE SCHEME OF FEDERAL LABOR LAWS, AND
ITS IMPORTANT RELATIONSHIP TO THE JUDICIAL ENFORCEMENT OF COLLECTIVE
BARGAINING AGREEMENTS IN THE CONTEXT PRESENTED HERE, RENDER THE GARMON
PRE-EMPTION DOCTRINE INAPPLICABLE. 

           III. 

PETITIONERS CONTEND, AS THEY DID IN THEIR MOTION FOR JUDGMENT
NOTWITHSTANDING THE JURY'S VERDICT, THAT OWENS FAILED TO PROVE THAT THE
UNION BREACHED ITS DUTY OF FAIR REPRESENTATION IN ITS HANDLING OF
OWENS' GRIEVANCE.  PETITIONERS ALSO ARGUE THAT THE SUPREME COURT OF
MISSOURI, IN REJECTING THIS CONTENTION, APPLIED A STANDARD THAT IS
INCONSISTENT WITH GOVERNING PRINCIPLES OF FEDERAL LAW WITH RESPECT TO
THE UNION'S DUTY TO AN INDIVIDUAL EMPLOYEE IN ITS PROCESSING OF
GRIEVANCES UNDER THE COLLECTIVE BARGAINING AGREEMENT WITH SWIFT.  WE
AGREE WITH BOTH CONTENTIONS.    A. IN HOLDING THAT THE EVIDENCE AT
TRIAL SUPPORTED THE JURY'S VERDICT IN FAVOR OF OWENS, THE MISSOURI
SUPREME COURT STATED: 

"THE ESSENTIAL ISSUE SUBMITTED TO THE JURY WAS WHETHER THE UNION  ...
ARBITRARILY  ...  REFUSED TO CARRY SAID GRIEVANCE ...  THROUGH THE
FIFTH STEP  ...  . 

"WE HAVE CONCLUDED THAT THERE WAS SUFFICIENT SUBSTANTIAL EVIDENCE
FROM WHICH THE JURY REASONABLY COULD HAVE FOUND THE FOREGOING ISSUE IN
FAVOR OF PLAINTIFF.  IT IS NOTABLE THAT NO PHYSICIAN ACTUALLY TESTIFIED
IN THE CASE.  BOTH SIDES WERE CONTENT TO RELY UPON WRITTEN STATEMENTS. 
THREE PHYSICIANS CERTIFIED THAT PLAINTIFF WAS ABLE TO PERFORM HIS
REGULAR WORK.  THREE OTHER PHYSICIANS CERTIFIED THAT THEY HAD TAKEN
PLAINTIFF'S BLOOD PRESSURE AND THAT THE READINGS WERE APPROXIMATELY 160
OVER 100.  IT MAY BE INFERRED THAT SUCH A READING DOES NOT INDICATE
THAT HIS BLOOD PRESSURE WAS DANGEROUSLY HIGH.  MOREOVER, PLAINTIFF'S
EVIDENCE SHOWED THAT HE HAD ACTUALLY DONE HARD PHYSICAL LABOR
PERIODICALLY DURING THE FOUR YEARS FOLLOWING HIS DISCHARGE.  WE
ACCORDINGLY RULE THIS POINT ADVERSELY TO DEFENDANTS."  397 S.W.2D, AT
665. 

QUITE OBVIOUSLY, THE QUESTION WHICH THE MISSOURI SUPREME COURT
THOUGHT DISPOSITIVE OF THE ISSUE OF LIABILITY WAS WHETHER THE EVIDENCE
SUPPORTED OWENS' ASSERTION THAT HE HAD BEEN WRONGFULLY DISCHARGED BY
SWIFT, REGARDLESS OF THE UNION'S GOOD FAITH IN REACHING A CONTRARY
CONCLUSION.  THIS WAS ALSO THE MAJOR CONCERN OF THE PLAINTIFF AT TRIAL:
THE BULK OF OWENS' EVIDENCE WAS DIRECTED AT WHETHER HE WAS MEDICALLY
FIT AT THE TIME OF DISCHARGE AND WHETHER HE HAD PERFORMED HEAVY WORK
AFTER THAT DISCHARGE. 

A BREACH OF THE STATUTORY DUTY OF FAIR REPRESENTATION OCCURS ONLY
WHEN A UNION'S CONDUCT TOWARD A MEMBER OF THE COLLECTIVE BARGAINING
UNIT IS ARBITRARY, DISCRIMINATORY, OR IN BAD FAITH.  SEE HUMPHREY V.
MOORE, SUPRA; FORD MOTOR CO. V. HUFFMAN, SUPRA.  THERE HAS BEEN
CONSIDERABLE DEBATE OVER THE EXTENT OF THIS DUTY IN THE CONTEXT OF A
UNION'S ENFORCEMENT OF THE GRIEVANCE AND ARBITRATION PROCEDURES IN A
COLLECTIVE BARGAINING AGREEMENT.  SEE GENERALLY BLUMROSEN, THE WORKER
AND THREE PHASES OF UNIONISM:  ADMINISTRATIVE AND JUDICIAL CONTROL OF
THE WORKER-UNION RELATIONSHIP, 61 MICH. L. REV. 1435, 1482-1501 (1963);
COMMENT, FEDERAL PROTECTION OF INDIVIDUAL RIGHTS UNDER LABOR CONTRACTS,
73 YALE L.J. 1215 (1964).  SOME HAVE SUGGESTED THAT EVERY INDIVIDUAL
EMPLOYEE SHOULD HAVE THE RIGHT TO HAVE HIS GRIEVANCE TAKEN TO
ARBITRATION.  (FN13)  OTHERS HAVE URGED THAT THE UNION BE GIVEN
SUBSTANTIAL DISCRETION (IF THE COLLECTIVE BARGAINING AGREEMENT SO
PROVIDES) TO DECIDE WHETHER GRIEVANCE SHOULD BE TAKEN TO ARBITRATION,
SUBJECT ONLY TO THE DUTY TO REFRAIN FROM PATENTLY WRONGFUL CONDUCT SUCH
AS RACIAL DISCRIMINATION OR PERSONAL HOSTILITY.  (FN14) 

THOUGH WE ACCEPT THE PROPOSITION THAT A UNION MAY NOT ARBITRARILY
IGNORE A MERITORIOUS GRIEVANCE OR PROCESS IT IN PERFUNCTORY FASHION, WE
DO NOT AGREE THAT THE INDIVIDUAL EMPLOYEE HAS AN ABSOLUTE RIGHT TO HAVE
HIS GRIEVANCE TAKEN TO ARBITRATION REGARDLESS OF THE PROVISIONS OF THE
APPLICABLE COLLECTIVE BARGAINING AGREEMENT.  IN L.M.R.A. SEC. 203(D),
61 STAT. 154, 29 U.S.C. SEC. 173(D), CONGRESS DECLARED THAT "FINAL
ADJUSTMENT BY A METHOD AGREED UPON BY THE PARTIES IS  ...  THE
DESIRABLE METHOD FOR SETTLEMENT OF GRIEVANCE DISPUTES ARISING OVER THE
APPLICATION OR INTERPRETATION OF AN EXISTING COLLECTIVE-BARGAINING
AGREEMENT."  IN PROVIDING FOR A GRIEVANCE AND ARBITRATION PROCEDURE
WHICH GIVES THE UNION DISCRETION TO SUPERVISE THE GRIEVANCE MACHINERY
AND TO INVOKE ARBITRATION, THE EMPLOYER AND THE UNION CONTEMPLATE THAT
EACH WILL ENDEAVOR IN GOOD FAITH TO SETTLE GRIEVANCES SHORT OF
ARBITRATION.  THROUGH THIS SETTLEMENT PROCESS, FRIVOLOUS GRIEVANCES ARE
ENDED PRIOR TO THE MOST COSTLY AND TIME-CONSUMING STEP IN THE GRIEVANCE
PROCEDURES.  MOREOVER, BOTH SIDES ARE ASSURED THAT SIMILAR COMPLAINTS
WILL BE TREATED CONSISTENTLY, AND MAJOR PROBLEM AREAS IN THE
INTERPRETATION OF THE COLLECTIVE BARGAINING CONTRACT CAN BE ISOLATED
AND PERHAPS RESOLVED.  AND FINALLY, THE SETTLEMENT PROCESS FURTHERS THE
INTEREST OF THE UNION AS STATUTORY AGENT AND AS COAUTHOR OF THE
BARGAINING AGREEMENT IN REPRESENTING THE EMPLOYEES IN THE ENFORCEMENT
OF THAT AGREEMENT.  SEE COX, RIGHTS UNDER A LABOR AGREEMENT, 69 HARV.
L. REV. 601 (1956). 

IF THE INDIVIDUAL EMPLOYEE COULD COMPEL ARBITRATION OF HIS GRIEVANCE
REGARDLESS OF ITS MERIT, THE SETTLEMENT MACHINERY PROVIDED BY THE
CONTRACT WOULD BE SUBSTANTIALLY UNDERMINED, THUS DESTROYING THE
EMPLOYER'S CONFIDENCE IN THE UNION'S AUTHORITY AND RETURNING THE
INDIVIDUAL GRIEVANT TO THE VAGARIES OF INDEPENDENT AND UNSYSTEMATIC
NEGOTIATION.  MOREOVER, UNDER SUCH A RULE, A SIGNIFICANTLY GREATER
NUMBER OF GRIEVANCES WOULD PROCEED TO ARBITRATION.  (FN15)  THIS WOULD
GREATLY INCREASE THE COST OF THE GRIEVANCE MACHINERY AND COULD SO
OVERBURDEN THE ARBITRATION PROCESS AS TO PREVENT IT FROM FUNCTIONING
SUCCESSFULLY.  SEE NLRB V. ACME INDUSTRIAL CO., 385 U.S. 432, 438;
ROSS, DISTRESSED GRIEVANCE PROCEDURES AND THEIR REHABILITATION, IN
LABOR ARBITRATION AND INDUSTRIAL CHANGE, PROCEEDINGS OF THE 16TH ANNUAL
MEETING, NATIONAL ACADEMY OF ARBITRATORS 104 (1963).  IT CAN WELL BE
DOUBTED WHETHER THE PARTIES TO COLLECTIVE BARGAINING AGREEMENTS WOULD
LONG CONTINUE TO PROVIDE FOR DETAILED GRIEVANCE AND ARBITRATION
PROCEDURES OF THE KIND ENCOURAGED BY L.M.R.A. SEC. 203(D), SUPRA, IF
THEIR POWER TO SETTLE THE MAJORITY OF GRIEVANCES SHORT OF THE COSTLIER
AND MORE TIME-CONSUMING STEPS WAS LIMITED BY A RULE PERMITTING THE
GRIEVANT UNILATERALLY TO INVOKE ARBITRATION.  NOR DO WE SEE SUBSTANTIAL
DANGER TO THE INTERESTS OF THE INDIVIDUAL EMPLOYEE IF HIS STATUTORY
AGENT IS GIVEN THE CONTRACTUAL POWER HONESTLY AND IN GOOD FAITH TO
SETTLE GRIEVANCES SHORT OF ARBITRATION.  FOR THESE REASONS, WE CONCLUDE
THAT A UNION DOES NOT BREACH ITS DUTY OF FAIR REPRESENTATION, AND
THEREBY OPEN UP A SUIT BY THE EMPLOYEE FOR BREACH OF CONTRACT, MERELY
BECAUSE IT SETTLED THE GRIEVANCE SHORT OF ARBITRATION. 

FOR THESE REASONS, THE STANDARD APPLIED HERE BY THE MISSOURI SUPREME
COURT CANNOT BE SUSTAINED.  FOR IF A UNION'S DECISION THAT A PARTICULAR
GRIEVANCE LACKS SUFFICIENT MERIT TO JUSTIFY ARBITRATION WOULD
CONSTITUTE A BREACH OF THE DUTY OF FAIR REPRESENTATION BECAUSE A JUDGE
OR JURY LATER FOUND THE GRIEVANCE MERITORIOUS, THE UNION'S INCENTIVE TO
SETTLE SUCH GRIEVANCES SHORT OF ARBITRATION WOULD BE SERIOUSLY
REDUCED.  THE DAMPENING EFFECT ON THE ENTIRE GRIEVANCE PROCEDURE OF
THIS REDUCTION OF THE UNION'S FREEDOM TO SETTLE CLAIMS IN GOOD FAITH
WOULD SURELY BE SUBSTANTIAL.  SINCE THE UNION'S STATUTORY DUTY OF FAIR
REPRESENTATION PROTECTS THE INDIVIDUAL EMPLOYEE FROM ARBITRARY ABUSES
OF THE SETTLEMENT DEVICE BY PROVIDING HIM WITH RECOURSE AGAINST BOTH
EMPLOYER (IN A SEC. 301 SUIT) AND UNION, THIS SEVERE LIMITATION ON THE
POWER TO SETTLE GRIEVANCES IS NEITHER NECESSARY NOR DESIRABLE. 
THEREFORE, WE CONCLUDE THAT THE SUPREME COURT OF MISSOURI ERRED IN
UPHOLDING THE VERDICT IN THIS CASE SOLELY ON THE GROUND THAT THE
EVIDENCE SUPPORTED OWENS' CLAIM THAT HE HAD BEEN WRONGFULLY
DISCHARGED. 

B. APPLYING THE PROPER STANDARD OF UNION LIABILITY TO THE FACTS OF
THIS CASE, WE CANNOT UPHOLD THE JURY'S AWARD, FOR WE CONCLUDE THAT AS A
MATTER OF FEDERAL LAW THE EVIDENCE DOES NOT SUPPORT A VERDICT THAT THE
UNION BREACHED ITS DUTY OF FAIR REPRESENTATION.  AS WE HAVE STATED,
OWENS COULD NOT HAVE ESTABLISHED A BREACH OF THAT DUTY MERELY BY
CONVINCING THE JURY THAT HE WAS IN FACT FIT FOR WORK IN 1960; HE MUST
ALSO HAVE PROVED ARBITRARY OR BAD-FAITH CONDUCT ON THE PART OF THE
UNION IN PROCESSING HIS GRIEVANCE.  THE EVIDENCE REVEALED THAT THE
UNION DILIGENTLY SUPERVISED THE GRIEVANCE INTO THE FOURTH STEP OF THE
BARGAINING AGREEMENT'S PROCEDURE, WITH THE UNION'S BUSINESS
REPRESENTATIVE SERVING AS OWENS' ADVOCATE THROUGHOUT THESE STEPS.  WHEN
SWIFT REFUSED TO REINSTATE OWENS ON THE BASIS OF HIS MEDICAL REPORTS
INDICATING REDUCED BLOOD PRESSURE, THE UNION SENT HIM TO ANOTHER DOCTOR
OF HIS OWN CHOICE, AT UNION EXPENSE, IN AN ATTEMPT TO AMASS PERSUASIVE
MEDICAL EVIDENCE OF OWENS' FITNESS FOR WORK.  WHEN THIS EXAMINATION
PROVED UNFAVORABLE, THE UNION CONCLUDED THAT IT COULD NOT ESTABLISH A
WRONGFUL DISCHARGE.  IT THEN ENCOURAGED SWIFT TO FIND LIGHT WORK FOR
OWENS AT THE PLANT.  WHEN THIS EFFORT FAILED, THE UNION DETERMINED THAT
ARBITRATION WOULD BE FRUITLESS AND SUGGESTED TO OWENS THAT HE ACCEPT
SWIFT'S OFFER TO SEND HIM TO A HEART ASSOCIATION FOR REHABILITATION. 
AT THIS POINT, OWENS' GRIEVANCE WAS SUSPENDED IN THE FOURTH STEP IN THE
HOPE THAT HE MIGHT BE REHABILITATED. 

IN ADMINISTERING THE GRIEVANCE AND ARBITRATION MACHINERY AS STATUTORY
AGENT OF THE EMPLOYEES, A UNION MUST, IN GOOD FAITH AND IN A
NONARBITRARY MANNER, MAKE DECISIONS AS TO THE MERITS OF PARTICULAR
GRIEVANCES.  SEE HUMPHREY V. MOORE, 375 U.S. 335, 349-350; FORD MOTOR
CO. V. HUFFMAN, 345 U.S. 330, 337-339.  IN A CASE SUCH AS THIS, WHEN
OWENS SUPPLIED THE UNION WITH MEDICAL EVIDENCE SUPPORTING HIS POSITION,
THE UNION MIGHT WELL HAVE BREACHED ITS DUTY HAD IT IGNORED OWENS'
COMPLAINT OR HAD IT PROCESSED THE GRIEVANCE IN A PERFUNCTORY MANNER. 
SEE COX, RIGHTS UNDER A LABOR AGREEMENT, 69 HARV. L. REV., AT 632-634. 
BUT HERE THE UNION PROCESSED THE GRIEVANCE INTO THE FOURTH STEP,
ATTEMPTED TO GATHER SUFFICIENT EVIDENCE TO PROVE OWENS' CASE, ATTEMPTED
TO SECURE FOR OWENS LESS VIGOROUS WORK AT THE PLANT, AND JOINED IN THE
EMPLOYER'S EFFORTS TO HAVE OWENS REHABILITATED.  ONLY WHEN THESE
EFFORTS ALL PROVED UNSUCCESSFUL DID THE UNION CONCLUDE BOTH THAT
ARBITRATION WOULD BE FRUITLESS AND THAT THE GRIEVANCE SHOULD BE
DISMISSED.  THERE WAS NO EVIDENCE THAT ANY UNION OFFICER WAS PERSONALLY
HOSTILE TO OWENS OR THAT THE UNION ACTED AT ANY TIME OTHER THAN IN GOOD
FAITH.  (FN16)  HAVING CONCLUDED THAT THE INDIVIDUAL EMPLOYEE HAS NO
ABSOLUTE RIGHT TO HAVE HIS GRIEVANCE ARBITRATED UNDER THE COLLECTIVE
BARGAINING AGREEMENT AT ISSUE, AND THAT A BREACH OF THE DUTY OF FAIR
REPRESENTATION IS NOT ESTABLISHED MERELY BY PROOF THAT THE UNDERLYING
GRIEVANCE WAS MERITORIOUS, WE MUST CONCLUDE THAT THAT DUTY WAS NOT
BREACHED HERE. 

                            IV. 

IN OUR OPINION, THERE IS ANOTHER IMPORTANT REASON WHY THE JUDGMENT OF
THE MISSOURI SUPREME COURT CANNOT STAND.  OWENS' SUIT AGAINST THE UNION
WAS GROUNDED ON HIS CLAIM THAT SWIFT HAD DISCHARGED HIM IN VIOLATION OF
THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT.  IN HIS COMPLAINT,
OWENS ALLEGED "THAT, AS A DIRECT RESULT OF SAID WRONGFUL BREACH OF SAID
CONTRACT, BY EMPLOYER  ...  PLAINTIFF WAS DAMAGED IN THE SUM OF SIX
THOUSAND, FIVE HUNDRED ($6,500.00) DOLLARS PER YEAR, CONTINUING UNTIL
THE DATE OF TRIAL."  FOR THE UNION'S ROLE IN "PREVENTING PLAINTIFF FROM
COMPLETELY EXHAUSTING ADMINISTRATIVE REMEDIES," OWENS REQUESTED, AND
THE JURY AWARDED COMPENSATORY DAMAGES FOR THE ABOVE-DESCRIBED BREACH OF
CONTRACT PLUS PUNITIVE DAMAGES OF $3,000.  R., AT 4.  WE HOLD THAT SUCH
DAMAGES ARE NOT RECOVERABLE FROM THE UNION IN THE CIRCUMSTANCES OF THIS
CASE. 

THE APPROPRIATE REMEDY FOR A BREACH OF A UNION'S DUTY OF FAIR
REPRESENTATION MUST VARY WITH THE CIRCUMSTANCES OF THE PARTICULAR
BREACH.  IN THIS CASE, THE EMPLOYEE'S COMPLAINT WAS THAT THE UNION
WRONGFULLY FAILED TO AFFORD HIM THE ARBITRATION REMEDY AGAINST HIS
EMPLOYER ESTABLISHED BY THE COLLECTIVE BARGAINING AGREEMENT.  BUT THE
DAMAGES SOUGHT BY OWENS WERE PRIMARILY THOSE SUFFERED BECAUSE OF THE
EMPLOYER'S ALLEGED BREACH OF CONTRACT.  ASSUMING FOR THE MOMENT THAT
OWENS HAD BEEN WRONGFULLY DISCHARGED, SWIFT'S ONLY DEFENSE TO A DIRECT
ACTION FOR BREACH OF CONTRACT WOULD HAVE BEEN THE UNION'S FAILURE TO
RESORT TO ARBITRATION, COMPARE REPUBLIC STEEL CORP. V. MADDOX, 379 U.S.
650, WITH SMITH V. EVENING NEWS ASSN., 371 U.S. 195, AND IF THAT
FAILURE WAS ITSELF A VIOLATION OF THE UNION'S STATUTORY DUTY TO THE
EMPLOYEE, THERE IS NO REASON TO EXEMPT THE EMPLOYER FROM CONTRACTUAL
DAMAGES WHICH HE WOULD OTHERWISE HAVE HAD TO PAY.  SEE PP. 185-186,
SUPRA.  THE DIFFICULTY LIES IN FASHIONING AN APPROPRIATE SCHEME OF
REMEDIES. 

PETITIONERS URGE THAT AN EMPLOYEE BE RESTRICTED IN SUCH CIRCUMSTANCES
TO A DECREE COMPELLING THE EMPLOYER AND THE UNION TO ARBITRATE THE
UNDERLYING GRIEVANCE.  (FN17)  IT IS TRUE THAT THE EMPLOYEE'S ACTION IS
BASED ON THE EMPLOYER'S ALLEGED BREACH OF CONTRACT PLUS THE UNION'S
ALLEGED WRONGFUL FAILURE TO AFFORD HIM HIS CONTRACTUAL REMEDY OF
ARBITRATION.  FOR THIS REASON, AN ORDER COMPELLING ARBITRATION SHOULD
BE VIEWED AS ONE OF THE AVAILABLE REMEDIES WHEN A BREACH OF THE UNION'S
DUTY IS PROVED.  BUT WE SEE NO REASON INFLEXIBLY TO REQUIRE ARBITRATION
IN ALL CASES.  IN SOME CASES, FOR EXAMPLE, AT LEAST PART OF THE
EMPLOYEE'S DAMAGES MAY BE ATTRIBUTABLE TO THE UNION'S BREACH OF DUTY,
AND AN ARBITRATOR MAY HAVE NO POWER UNDER THE BARGAINING AGREEMENT TO
AWARD SUCH DAMAGES AGAINST THE UNION.  IN OTHER CASES, THE ARBITRABLE
ISSUES MAY BE SUBSTANTIALLY RESOLVED IN THE COURSE OF TRYING THE FAIR
REPRESENTATION CONTROVERSY.  IN SUCH SITUATIONS, THE COURT SHOULD BE
FREE TO DECIDE THE CONTRACTUAL CLAIM AND TO AWARD THE EMPLOYEE
APPROPRIATE DAMAGES OR EQUITABLE RELIEF. 

A MORE DIFFICULT QUESTION IS, WHAT PORTION OF THE EMPLOYEE'S DAMAGES
MAY BE CHARGED TO THE UNION: IN PARTICULAR, MAY AN AWARD AGAINST A
UNION INCLUDE, AS IT DID HERE, DAMAGES ATTRIBUTABLE SOLELY TO THE
EMPLOYER'S BREACH OF CONTRACT?  WE THINK NOT.  THOUGH THE UNION HAS
VIOLATED A STATUTORY DUTY IN FAILING TO PRESS THE GRIEVANCE, IT IS THE
EMPLOYER'S UNRELATED BREACH OF CONTRACT WHICH TRIGGERED THE CONTROVERSY
AND WHICH CAUSED THIS PORTION OF THE EMPLOYEE'S DAMAGES.  THE EMPLOYEE
SHOULD HAVE NO DIFFICULTY RECOVERING THESE DAMAGES FROM THE EMPLOYER,
WHO CANNOT, AS WE HAVE EXPLAINED, HIDE BEHIND THE UNION'S WRONGFUL
FAILURE TO ACT; IN FACT, THE EMPLOYER MAY BE (AND PROBABLY SHOULD BE)
JOINED AS A DEFENDANT IN THE FAIR REPRESENTATION SUIT, AS IN HUMPHREY
V. MOORE, SUPRA.  IT COULD BE A REAL HARDSHIP ON THE UNION TO PAY THESE
DAMAGES, EVEN IF THE UNION WERE GIVEN A RIGHT OF INDEMNIFICATION
AGAINST THE EMPLOYER.  WITH THE EMPLOYEE ASSURED OF DIRECT RECOVERY
FROM THE EMPLOYER, WE SEE NO MERIT IN REQUIRING THE UNION TO PAY THE
EMPLOYER'S SHARE OF THE DAMAGES.  (FN18)   THE GOVERNING PRINCIPLE,
THEN, IS TO APPORTION LIABILITY BETWEEN THE EMPLOYER AND THE UNION
ACCORDING TO THE DAMAGE CAUSED BY THE FAULT OF EACH.  THUS, DAMAGES
ATTRIBUTABLE SOLELY TO THE EMPLOYER'S BREACH OF CONTRACT SHOULD NOT BE
CHARGED TO THE UNION, BUT INCREASES IF ANY IN THOSE DAMAGES CAUSED BY
THE UNION'S REFUSAL TO PROCESS THE GRIEVANCE SHOULD NOT BE CHARGED TO
THE EMPLOYER.  IN THIS CASE, EVEN IF THE UNION HAD BREACHED ITS DUTY,
ALL OR ALMOST ALL OF OWENS' DAMAGES WOULD STILL BE ATTRIBUTABLE TO HIS
ALLEGEDLY WRONGFUL DISCHARGE BY SWIFT.  FOR THESE REASONS, EVEN IF THE
UNION HERE HAD PROPERLY BEEN FOUND LIABLE FOR A BREACH OF DUTY, IT IS
CLEAR THAT THE DAMAGE AWARD WAS IMPROPER.  REVERSED. 

FN1  NOW KNOWN AS THE NATIONAL BROTHERHOOD OF PACKINGHOUSE & DAIRY
WORKERS. 

FN2  PUNITIVE DAMAGES WERE REDUCED TO $3,000, THE AMOUNT CLAIMED BY
OWENS IN HIS COMPLAINT. 

FN3  THE AGREEMENT CREATED A FIVE-STEP PROCEDURE FOR THE HANDLING OF
GRIEVANCES.  IN STEPS ONE AND TWO, EITHER THE AGGRIEVED EMPLOYEE OR THE
UNION'S REPRESENTATIVE PRESENTS THE GRIEVANCE FIRST TO SWIFT'S
DEPARTMENT FOREMAN, AND THEN IN WRITING TO THE DIVISION
SUPERINTENDENT.  IN STEP THREE, GRIEVANCE COMMITTEES OF THE UNION AND
MANAGEMENT MEET, AND THE COMPANY MUST STATE ITS POSITION IN WRITING TO
THE UNION.  STEP FOUR IS A MEETING BETWEEN SWIFT'S GENERAL
SUPERINTENDENT AND REPRESENTATIVES OF THE NATIONAL UNION.  IF THE
GRIEVANCE IS NOT SETTLED IN THE FOURTH STEP, THE NATIONAL UNION IS
GIVEN POWER TO REFER THE GRIEVANCE TO A SPECIFIED ARBITRATOR. 

FN4  NO NOTICE OF THE DISMISSAL WAS GIVEN TO OWENS, WHO BY THAT TIME
HAD FILED A SECOND SUIT AGAINST SWIFT FOR BREACH OF CONTRACT.  THE SUIT
AGAINST SWIFT IS STILL PENDING IN A PRETRIAL STAGE. 

FN5  SEE ALSO CARGO HANDLERS, INC., 159 N.L.R.B. NO. 17; LOCAL 12,
UNITED RUBBER WORKERS, 150 N.L.R.B. 312, ENFORCED, 368 F.2D 12 (C.A.
5TH CIR. 1966); MAREMONT CORP., 149 N.L.R.B.  482; GALVESTON MARITIME
ASSN., INC., 148 N.L.R.B. 897; HUGHES TOOL CO., N.L.R.B. 1573. 

FN6  SEE FORD MOTOR CO. V. HUFFMAN, 345 U.S. 330, 332, N. 4.  IN
HUFFMAN, THE NLRB SUBMITTED AN AMICUS BRIEF STATING THAT IT HAD NOT
ASSUMED PRE-EMPTIVE JURISDICTION OVER FAIR REPRESENTATION DUTY ISSUES. 
MEM. FOR THE NLRB, NOS. 193 AND 194, OCT. TERM, 1952.  IN SYRES V. OIL
WORKERS INTERNATIONAL UNION, 350 U.S. 892, THE COURT REVERSED THE
DISMISSAL OF A SUIT WHICH CLAIMED BREACH OF THE DUTY OF FAIR
REPRESENTATION DESPITE EXPRESS RELIANCE BY ONE RESPONDENT ON EXCLUSIVE
NLRB JURISDICTION.  BRIEF FOR RESP.  GULF OIL CORP., NO. 390, OCT.
TERM, 1955. 

FN7  SEE HUGHES TOOL CO., 147 N.L.R.B. 1573, 1589-1590 (CHAIRMAN
MCCULLOCH AND MEMBER FANNING, DISSENTING IN PART). 

FN8  THE PUBLIC INTEREST IN EFFECTUATING THE POLICIES OF THE FEDERAL
LABOR LAWS, NOT THE WRONG DONE THE INDIVIDUAL EMPLOYEE, IS ALWAYS THE
BOARD'S PRINCIPAL CONCERN IN FASHIONING UNFAIR LABOR PRACTICE
REMEDIES.  SEE N.L.R.A. SEC. 10(C), AS AMENDED, 61 STAT. 147, 29 U.S.C.
SEC. 160(C); PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177.  THUS,
THE GENERAL COUNSEL WILL REFUSE TO BRING COMPLAINTS ON BEHALF OF
INJURED EMPLOYEES WHERE THE INJURY COMPLAINED OF IS "INSUBSTANTIAL." 
SEE ADMINISTRATIVE DECISION OF THE GENERAL COUNSEL, CASE NO. K-610,
AUG. 13, 1956, IN CCH N.L.R.B. DECISIONS, 1956-1957, TRANSFER BINDER,
PARA. 54,059. 

FN9  IF A GRIEVANCE AND ARBITRATION PROCEDURE IS INCLUDED IN THE
CONTRACT, BUT THE PARTIES DO NOT INTEND IT TO BE AN EXCLUSIVE REMEDY,
THEN A SUIT FOR BREACH OF CONTRACT WILL NORMALLY BE HEARD EVEN THOUGH
SUCH PROCEDURES HAVE NOT BEEN EXHAUSTED.  SEE REPUBLIC STEEL CORP. V.
MADDOX, 379 U.S. 650, 657-658; 6A CORBIN, CONTRACTS SEC. 1436 (1962). 

FN10  OCCASIONALLY, THE BARGAINING AGREEMENT WILL GIVE THE AGGRIEVED
EMPLOYEE, RATHER THAN HIS UNION, THE RIGHT TO INVOKE ARBITRATION.  SEE
RETAIL CLERKS V. LION DRY GOODS, INC., 341 F.2D 715, CERT. DENIED, 382
U.S. 839. 

FN11  ACCORD, HILLER V. LIQUOR SALESMEN'S UNION, 338 F.2D 778 (C.A.2D
CIR.); HARDCASTLE V. WESTERN GREYHOUND LINES, 303 F.2D 182 (C.A. 9TH
CIR.), CERT. DENIED, 371 U.S. 920; FIORE V. ASSOCIATED TRANSPORT, INC.,
255 F. SUPP. 596; BIESKI V. EASTERN AUTOMOBILE FORWARDING CO., 231 F.
SUPP. 710, AFF'D, 354 F.2D 414 (C.A. 3D CIR.); OSTROFSKY V. UNITED
STEELWORKERS, 171 F. SUPP. 782, AFF'D PER CURIAM, 273 F.2D 614 (C.A.
4TH CIR.), CERT. DENIED, 363 U.S. 849; JENKINS V. WM. SCHLUDERBERG -
T.J. KURDLE CO., 217 MD. 556, 144 A.2D 88. 

FN12  ASSUMING FOR THE MOMENT THAT SWIFT BREACHED THE COLLECTIVE
BARGAINING AGREEMENT IN DISCHARGING OWENS AND THAT THE UNION BREACHED
ITS DUTY IN HANDLING OWENS' GRIEVANCE, THIS CASE ILLUSTRATES THE
DIFFICULTIES THAT WOULD RESULT FROM A RULE PRE-EMPTING THE COURTS FROM
REMEDYING THE UNION'S BREACH OF DUTY.  IF SWIFT DID NOT "PARTICIPATE"
IN THE UNION'S UNFAIR LABOR PRACTICE, THE BOARD WOULD HAVE NO
JURISDICTION TO REMEDY SWIFT'S BREACH OF CONTRACT.  YET A COURT MIGHT
BE EQUALLY UNABLE TO GIVE OWENS FULL RELIEF IN A SEC. 301 SUIT AGAINST
SWIFT.  SHOULD THE COURT AWARD DAMAGES AGAINST SWIFT FOR OWENS' FULL
LOSS, EVEN IF IT CONCLUDES THAT PART OF THAT LOSS WAS CAUSED BY THE
UNION'S BREACH OF DUTY?  OR SHOULD IT AWARD OWENS ONLY PARTIAL RECOVERY
HOPING THAT THE BOARD WILL MAKE HIM WHOLE?  THESE REMEDY PROBLEMS ARE
DIFFICULT ENOUGH WHEN ONE TRIBUNAL HAS ALL PARTIES BEFORE IT; THEY ARE
IMPOSSIBLE IF TWO INDEPENDENT TRIBUNALS, WITH DIFFERENT PROCEDURES,
TIME LIMITATIONS, AND REMEDIAL POWERS, MUST PARTICIPATE. 

FN13  SEE DONNELLY V. UNITED FRUIT CO., 40 N.J. 61, 190 A.2D 825;
REPORT OF COMMITTEE ON IMPROVEMENT OF ADMINISTRATION OF UNION
MANAGEMENT AGREEMENTS, 1954, INDIVIDUAL GRIEVANCES, 50 NW. U.L. REV.
143 (1955); MURPHY, THE DUTY OF FAIR REPRESENTATION UNDER TAFT-HARTLEY,
30 MO. L. REV. 373, 389 (1965); SUMMERS, INDIVIDUAL RIGHTS IN
COLLECTIVE AGREEMENTS AND ARBITRATION, 37 N.Y.U.L. REV. 362 (1962). 

FN14  SEE SHEREMET V. CHRYSLER CORP., 372 MICH. 626, 127 N.W.2D 313;
WYLE, LABOR ARBITRATION AND THE CONCEPT OF EXCLUSIVE REPRESENTATION, 7
B.C. IND. & COM. L. REV. 783 (1966). 

FN15 UNDER CURRENT GRIEVANCE PRACTICES, AN ATTEMPT IS USUALLY MADE TO
KEEP THE NUMBER OF ARBITRATED GRIEVANCES TO A MINIMUM.  AN OFFICER OF
THE NATIONAL UNION TESTIFIED IN THIS CASE THAT ONLY ONE OF 967
GRIEVANCES FILED AT ALL OF SWIFT'S PLANTS BETWEEN SEPTEMBER 1961 AND
OCTOBER 1963 WAS TAKEN TO ARBITRATION.  AND THE AFL-CIO'S AMICUS BRIEF
REVEALS SIMILAR PERFORMANCES AT GENERAL MOTORS CORPORATION AND UNITED
STATES STEEL COPORATION, TWO OF THE NATION'S LARGEST UNIONIZED
EMPLOYERS:  LESS THAN .05% OF ALL WRITTEN GRIEVANCES FILED DURING A
RECENT PERIOD AT GENERAL MOTORS REQUIRED ARBITRATION, WHILE ONLY 5.6%
OF THE GRIEVANCES PROCESSED BEYOND THE FIRST STEP AT UNITED STATES
STEEL WERE DECIDED BY AN ARBITRATOR. 

FN16  OWENS DID ALLEGE AND TESTIFY THAT PETITIONER VACA, PRESIDENT OF
THE KANSAS CITY LOCAL, DEMANDED $300 IN EXPENSES BEFORE THE UNION WOULD
TAKE THE GRIEVANCE TO ARBITRATION, A CHARGE WHICH ALL THE PETITIONERS
VIGOROUSLY DENIED AT TRIAL.  UNDER THE COLLECTIVE BARGAINING AGREEMENT,
THE LOCAL UNION HAD NO POWER TO INVOKE ARBITRATION.  SEE N. 3, SUPRA.
MOREOVER, THE UNION'S DECISION TO SEND OWENS TO ANOTHER DOCTOR AT UNION
EXPENSE OCCURRED AFTER VACA'S ALLEGED DEMAND, AND THE ULTIMATE DECISION
NOT TO INVOKE ARBITRATION CAME LATER STILL.  THUS, EVEN IF THE JURY
BELIEVED OWENS' CONTROVERTED TESTIMONY, WE DO NOT THINK THAT THIS
INCIDENT WOULD ESTABLISH A BREACH OF DUTY BY THE UNION. 

FN17  OBVIOUSLY, ARBITRATION IS AN APPROPRIATE REMEDY ONLY WHEN THE
PARTIES HAVE CREATED SUCH A PROCEDURE IN THE COLLECTIVE BARGAINING
AGREEMENT. 

FN18  WE ARE NOT DEALING HERE WITH SITUATIONS WHERE A UNION HAS
AFFIRMATIVELY CAUSED THE EMPLOYER TO COMMIT THE ALLEGED BREACH OF
CONTRACT.  IN CASES OF THAT SORT WHERE THE UNION'S CONDUCT IS FOUND TO
BE AN UNFAIR LABOR PRACTICE, THE NLRB HAS FOUND AN UNFAIR LABOR
PRACTICE BY THE EMPLOYER, TOO, AND HAS HELD THE UNION AND THE EMPLOYER
JOINTLY AND SEVERALLY LIABLE FOR ANY BACK PAY FOUND OWING TO THE
PARTICULAR EMPLOYEE WHO WAS THE SUBJECT OF THEIR JOINT DISCRIMINATION. 
E.G., IMPARATO STEVEDORING CORP., 113 N.L.R.B. 883 (1955); SQUIRT
DISTRIB.  CO., 92 N.L.R.B. 1667 (1951); H.M. NEWMAN, 85 N.L.R.B. 725
(1949).  EVEN IF THIS APPROACH WOULD BE APPROPRIATE FOR ANALOGOUS SEC
301 AND BREACH-OF-DUTY SUITS, IT IS NOT APPLICABLE HERE.  SINCE THE
UNION PLAYED NO PART IN SWIFT'S ALLEGED BREACH OF CONTRACT AND SINCE
SWIFT TOOK NO PART IN THE UNION'S ALLEGED BREACH OF DUTY, JOINT
LIABILITY FOR EITHER WRONG WOULD BE UNWARRANTED. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
HARLAN JOIN, CONCURRING IN THE RESULT. 

1.  IN MY VIEW, A COMPLAINT BY AN EMPLOYEE THAT THE UNION HAS
BREACHED ITS DUTY OF FAIR REPRESENTATION IS SUBJECT TO THE EXCLUSIVE
JURISDICTION OF THE NLRB.  IT IS A CHARGE OF UNFAIR LABOR PRACTICE. 
SEE MIRANDA FUEL CO., 140 N.L.R.B. 181 (1962); (FN1) LOCAL 12, UNITED
RUBBER WORKERS, 150 N.L.R.B. 312, ENFORCED, 368 F.2D 12 (C.A. 5TH CIR.
1966).  (FN2)  AS IS THE CASE WITH MOST OTHER UNFAIR LABOR PRACTICES,
THE BOARD'S JURISDICTION IS PRE-EMPTIVE.  GARNER V. TEAMSTERS UNION,
346 U.S. 485 (1953); GUSS V. UTAH LABOR BOARD, 353 U.S. 1 (1957); SAN
DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959); LOCAL
438, CONSTR.  LABORERS V. CURRY, 371 U.S. 542 (1963); PLUMBERS' UNION
V. BORDEN, 373 U.S. 690 (1963); IRON WORKERS V. PERKO, 373 U.S. 701
(1963); LINER V. JAFCO, INC., 375 U.S. 301 (1964).  CF. WOODY V.
STERLING ALUM.  PRODS., INC., 365 F.2D 448 (C.A. 8TH CIR. 1966), PET.
FOR CERT. PENDING, NO. 946, O.T. 1966.  THERE IS NO BASIS FOR FAILURE
TO APPLY THE PRE-EMPTION PRINCIPLE IN THE PRESENT CASE, AND, AS I SHALL
DISCUSS, STRONG REASON FOR ITS APPLICATION.  THE RELATIONSHIP BETWEEN
THE UNION AND THE INDIVIDUAL EMPLOYEE WITH RESPECT TO THE PROCESSING OF
CLAIMS TO EMPLOYMENT RIGHTS UNDER THE COLLECTIVE BARGAINING AGREEMENT
IS FUNDAMENTAL TO THE DESIGN AND OPERATION OF FEDERAL LABOR LAW.  IT IS
NOT "MERELY PERIPHERAL," AS THE COURT'S OPINION STATES.  IT "PRESENTS
DIFFICULT PROBLEMS OF DEFINITION OF STATUS, PROBLEMS WHICH WE HAVE HELD
ARE PRECISELY 'OF A KIND MOST WISELY ENTRUSTED INITIALLY TO THE AGENCY
CHARGED WITH THE DAY-TO-DAY ADMINISTRATION OF THE ACT AS A WHOLE.'" 
IRON WORKERS V. PERKO, SUPRA, 373 U.S., AT 706.   ACCORDINGLY, THE
JUDGMENT OF THE SUPREME COURT OF MISSOURI SHOULD BE REVERSED AND THE
COMPLAINT DISMISSED FOR THIS REASON AND ON THIS BASIS.  I AGREE,
HOWEVER, THAT IF IT WERE ASSUMED THAT JURISDICTION OF THE SUBJECT
MATTER EXISTS, THE JUDGMENT WOULD STILL HAVE TO BE REVERSED BECAUSE OF
THE USE BY THE MISSOURI COURT OF AN IMPROPER STANDARD FOR MEASURING THE
UNION'S DUTY, AND THE ABSENCE OF EVIDENCE TO ESTABLISH THAT THE UNION
REFUSED FURTHER TO PROCESS OWENS' GRIEVANCE BECAUSE OF BAD FAITH OR
ARBITRARILY. 

2.  I REGRET THE ELABORATE DISCUSSION IN THE COURT'S OPINION OF
PROBLEMS WHICH ARE IRRELEVANT.  THIS IS NOT AN ACTION BY THE EMPLOYEE
AGAINST THE EMPLOYER, AND THE DISCUSSION OF THE REQUISITES OF SUCH AN
ACTION IS, IN MY JUDGMENT, UNNECESSARY.  THE COURT ARGUES THAT THE
EMPLOYEE COULD SUE THE EMPLOYER UNDER L.M.R.A. SEC. 301; AND THAT TO
MAINTAIN SUCH AN ACTION THE EMPLOYEE WOULD HAVE TO SHOW THAT HE HAS
EXHAUSTED HIS REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT, OR
ALTERNATIVELY THAT HE WAS PREVENTED FROM DOING SO BECAUSE THE UNION
BREACHED ITS DUTY TO HIM BY FAILURE COMPLETELY TO PROCESS HIS CLAIM. 
THAT MAY BE; OR MAYBE ALL HE WOULD HAVE TO SHOW TO MAINTAIN AN ACTION
AGAINST THE EMPLOYER FOR WRONGFUL DISCHARGE IS THAT HE DEMANDED THAT
THE UNION PROCESS HIS CLAIM TO EXHAUSTION OF AVAILABLE REMEDIES, AND
THAT IT REFUSED TO DO SO.  (FN3)  I SEE NO NEED FOR THE COURT TO PASS
UPON THAT QUESTION, WHICH IS NOT PRESENTED HERE, AND WHICH, WITH ALL
RESPECT, LENDS NO SUPPORT TO THE COURT'S ARGUMENT.  THE COURT SEEMS TO
USE ITS DISCUSSION OF THE EMPLOYEE-EMPLOYER LITIGATION AS SOMEHOW
ANALOGOUS TO OR SUPPORTIVE OF ITS CONCLUSION THAT THE EMPLOYEE MAY
MAINTAIN A COURT ACTION AGAINST THE UNION.  BUT I DO NOT BELIEVE THAT
THIS FOLLOWS.  I AGREE THAT THE NLRB'S UNFAIR LABOR PRACTICE
JURISDICTION DOES NOT PRECLUDE AN ACTION UNDER SEC 301 AGAINST THE
EMPLOYER FOR WRONGFUL DISCHARGE FROM EMPLOYMENT.  SMITH V. EVENING NEWS
ASSN., 371 U.S. 195 (1962).  THEREFORE, OWENS MIGHT HAVE MAINTAINED AN
ACTION AGAINST HIS EMPLOYER IN THE PRESENT CASE.  THIS WOULD BE AN
ACTION TO ENFORCE THE COLLECTIVE BARGAINING AGREEMENT, AND CONGRESS HAS
AUTHORIZED THE COURTS TO ENTERTAIN ACTIONS OF THIS TYPE.  BUT HIS CLAIM
AGAINST THE UNION IS QUITE DIFFERENT IN CHARACTER, AS THE COURT ITSELF
RECOGNIZES.  THE COURT HOLDS - AND I THINK CORRECTLY IF THE ISSUE IS TO
BE REACHED - THAT THE UNION COULD NOT BE REQUIRED TO PAY DAMAGES
MEASURED BY THE BREACH OF THE EMPLOYMENT CONTRACT, BECAUSE IT WAS NOT
THE UNION BUT THE EMPLOYER THAT BREACHED THE CONTRACT.  I AGREE; BUT I
SUGGEST THAT THIS REVEALS THE POINT FOR WHICH I CONTEND:  THAT THE
EMPLOYEE'S CLAIM AGAINST THE UNION IS NOT A CLAIM UNDER THE COLLECTIVE
BARGAINING AGREEMENT, BUT A CLAIM THAT THE UNION HAS BREACHED ITS
STATUTORY DUTY OF FAIR REPRESENTATION.  THIS CLAIM, I SUBMIT, IS A
CLAIM OF UNFAIR LABOR PRACTICE AND IT IS WITHIN THE EXCLUSIVE
JURISDICTION OF THE NLRB.  THE COURT AGREES THAT "ONE OF THE AVAILABLE
REMEDIES (OBTAINABLE, THE COURT SAYS, BY COURT ACTION) WHEN A BREACH OF
THE UNION'S DUTY IS PROVED" IS "AN ORDER COMPELLING ARBITRATION."  THIS
IS PRECISELY AND UNIQUELY THE KIND OF ORDER WHICH IS WITHIN THE
PROVINCE OF THE BOARD.  BEYOND THIS, THE COURT IS EXCEEDINGLY VAGUE AS
TO REMEDY:  "APPROPRIATE DAMAGES OR EQUITABLE RELIEF" ARE SUGGESTED AS
POSSIBLE REMEDIES, APPARENTLY WHEN ARBITRATION IS NOT AVAILABLE. 
DAMAGES AGAINST THE UNION, THE COURT ADMONISHES, SHOULD BE GAUGED
"ACCORDING TO THE DAMAGE CAUSED BY ITS FAULT" - I.E., THE FAILURE TO
EXHAUST REMEDIES FOR THE GRIEVANCE.  THE COURT'S DIFFICULTY, IT SEEMS
TO ME, REFLECTS THE BASIC AWKWARDNESS OF ITS POSITION:  IT IS
ATTEMPTING TO FORCE INTO THE POSTURE OF A CONTRACT VIOLATION AN ALLEGED
DEFAULT OF THE UNION WHICH IS NOT A VIOLATION OF THE COLLECTIVE
BARGAINING AGREEMENT BUT A BREACH OF ITS SEPARATE AND BASIC DUTY FAIRLY
TO REPRESENT ALL EMPLOYEES IN THE UNIT.  THIS IS AN UNFAIR LABOR
PRACTICE, AND SHOULD BE TREATED AS SUCH.  (FN4)    3.  IF WE LOOK
BEYOND LOGIC AND PRECEDENT TO THE POLICY OF THE LABOR RELATIONS DESIGN
WHICH CONGRESS HAS PROVIDED, COURT JURISDICTION OF THIS TYPE OF ACTION
SEEMS ANOMALOUS AND ILL-ADVISED.  WE ARE NOT DEALING HERE WITH THE
INTERPRETATION OF A CONTRACT OR WITH AN ALLEGED BREACH OF AN EMPLOYMENT
AGREEMENT.  AS THE COURT IN EFFECT ACKNOWLEDGES, WE ARE CONCERNED WITH
THE SUBTLETIES OF A UNION'S STATUTORY DUTY FAITHFULLY TO REPRESENT
EMPLOYEES IN THE UNIT, INCLUDING THOSE WHO MAY NOT BE MEMBERS OF THE
UNION.  THE COURT - REGRETTABLY, IN MY OPINION - VENTURES TO STATE
JUDGMENTS AS TO THE METES AND BOUNDS OF THE RECIPROCAL DUTIES INVOLVED
IN THE RELATIONSHIP BETWEEN THE UNION AND THE EMPLOYEE.  IN MY OPINION,
THIS IS PRECISELY AND ESPECIALLY THE KIND OF JUDGMENT THAT CONGRESS
INTENDED TO ENTRUST TO THE BOARD AND WHICH IS WELL WITHIN THE PRE
EMPTION DOCTRINE THAT THIS COURT HAS PRUDENTLY STATED.  (FN5)  SEE
CASES CITED, SUPRA, ESPECIALLY THE PERKO AND BORDEN CASES, THE FACTS OF
WHICH STRONGLY PARALLEL THE SITUATION IN THIS CASE.  SEE ALSO LINN V.
PLANT GUARD WORKERS, 383 U.S. 53, 72 (1966)(DISSENTING OPINION).  THE
NUANCES OF UNION-EMPLOYEE AND UNION-EMPLOYER RELATIONSHIPS ARE INFINITE
AND CONSEQUENTIAL, PARTICULARLY WHEN THE ISSUE IS AS AMORPHOUS AS
WHETHER THE UNION WAS PROVED GUILTY OF "ARBITRARY OR BAD-FAITH CONDUCT"
WHICH THE COURT STATES AS THE STANDARD APPLICABLE HERE.  IN ALL REASON
AND IN ALL GOOD JUDGMENT, THIS JURISDICTION SHOULD BE LEFT WITH THE
BOARD AND NOT BE PLACED IN THE COURTS, ESPECIALLY WITH THE COMPLEX AND
NECESSARILY CONFUSING GUIDEBOOK THAT THE COURT NOW PUBLISHES. 

ACCORDINGLY, I JOIN THE JUDGMENT OF REVERSAL, BUT ON THE BASIS
STATED. 

FN1  THIS DECISION OF THE NLRB WAS DENIED ENFORCEMENT BY THE COURT OF
APPEALS FOR THE SECOND CIRCUIT BUT ON A BASIS WHICH DID NOT DECIDE THE
POINT RELEVANT HERE.  NLRB V. MIRANDA FUEL CO., 326 F.2D 172 (C.A.2D
CIR. 1963).  ONLY ONE JUDGE, JUDGE MEDINA, TOOK THE POSITION THAT THE
NLRB HAD INCORRECTLY HELD VIOLATION OF THE DUTY OF FAIR REPRESENTATION
TO BE AN UNFAIR LABOR PRACTICE.  AS AN ALTERNATIVE GROUND FOR DECISION,
HE HELD THAT THE NLRB HAD NOT HAD SUFFICIENT EVIDENCE TO SUPPORT ITS
FINDING OF BREACH OF THE DUTY.  JUDGE LUMBARD AGREED WITH THIS LATTER
HOLDING, AND EXPLICITLY DID NOT REACH THE QUESTION WHETHER BREACH OF
THE DUTY IS AN UNFAIR LABOR PRACTICE.  JUDGE FRIENDLY DISSENTED.  HE
WOULD HAVE AFFIRMED THE NLRB BOTH ON THE SUFFICIENCY OF THE EVIDENCE
AND ON THE HOLDING THAT BREACH OF THE DUTY OF FAIR REPRESENTATION IS AN
UNFAIR LABOR PRACTICE AS TO WHICH THE NLRB CAN GIVE RELIEF. 

FN2  THE OPINION BY JUDGE THORNBERRY FOR THE FIFTH CIRCUIT SUPPORTS
THE VIEWS EXPRESSED HEREIN.  SEE ALSO COX, THE DUTY OF FAIR
REPRESENTATION, 2 VILL.  L. REV. 151, 172-173 (1957); WELLINGTON, UNION
DEMOCRACY AND FAIR REPRESENTATION:  FEDERAL RESPONSIBILITY IN A FEDERAL
SYSTEM, 67 YALE L.J. 1327 (1958). 

FN3  CF. MY BROTHER BLACK'S DISSENTING OPINION IN THIS CASE.  CF.
ALSO BROWN V. STERLING ALUM.  PRODS.  CORP., 365 F.2D 651, 656-657
(C.A. 8TH CIR. 1966), CERT. DENIED, POST, P. 957.  REPUBLIC STEEL CORP.
V. MADDOX, 379 U.S. 650 (1965), DOES NOT PASS UPON THE ISSUE.  THE
COURT STATES THAT "TO LEAVE THE EMPLOYEE REMEDILESS" WHEN THE UNION
WRONGFULLY REFUSES TO PROCESS HIS GRIEVANCE, "WOULD ...  BE A GREAT
INJUSTICE."  I DO NOT BELIEVE THE COURT RELIEVES THIS INJUSTICE TO ANY
GREAT EXTENT BY REQUIRING THE EMPLOYEE TO PROVE AN UNFAIR LABOR
PRACTICE AS A PREREQUISITE TO JUDICIAL RELIEF FOR THE EMPLOYER'S BREACH
OF CONTRACT.  NOR DO I UNDERSTAND HOW GIVING THE EMPLOYEE A CAUSE OF
ACTION AGAINST THE UNION IS AN APPROPRIATE WAY TO REMEDY THE INJUSTICE
WHICH WOULD EXIST IF THE UNION WERE ALLOWED TO FORECLOSE RELIEF AGAINST
THE EMPLOYER. 

FN4  THE COURT ARGUES THAT SINCE THE EMPLOYEE SUING THE EMPLOYER FOR
BREACH OF THE EMPLOYMENT CONTRACT WOULD HAVE TO SHOW EXHAUSTION OF
REMEDIES UNDER THE CONTRACT, AND SINCE HE WOULD FOR THIS PURPOSE HAVE
TO SHOW HIS DEMAND ON THE UNION AND, ACCORDING TO THE COURT, ITS
WRONGFUL FAILURE TO PROSECUTE HIS GRIEVANCE, THE UNION COULD BE JOINED
AS A PARTY DEFENDANT; AND SINCE THE UNION COULD BE JOINED IN SUCH A
SUIT, IT MAY BE SUED INDEPENDENTLY OF THE EMPLOYER.  BUT THIS IS A NON
SEQUITUR.   AS THE COURT ITSELF INSISTS, THE SUIT AGAINST THE UNION IS
NOT FOR BREACH OF THE EMPLOYMENT CONTRACT, BUT FOR VIOLATION OF THE
DUTY FAIRLY TO REPRESENT THE EMPLOYEE.  THIS IS AN ENTIRELY DIFFERENT
MATTER.  IT IS A BREACH OF STATUTORY DUTY - AN UNFAIR LABOR PRACTICE -
AND NOT A BREACH OF THE EMPLOYMENT CONTRACT. 

FN5  IN A VARIETY OF CONTEXTS THE NLRB CONCERNS ITSELF WITH THE
SUBSTANTIVE BARGAINING BEHAVIOR OF THE PARTIES.  FOR EXAMPLE:  (A) THE
DUTY TO BARGAIN IN GOOD FAITH, SEE, E.G., FIBREBOARD CORP. V. LABOR
BOARD, 379 U.S. 203 (1964); (B) JURISDICTIONAL DISPUTES, SEE, E.G.,
LABOR BOARD V. RADIO ENGINEERS, 364 U.S. 573 (1961); (C) SECONDARY
BOYCOTTS AND HOT CARGO CLAUSES, SEE, E.G., ORANGE BELT DISTRICT COUNCIL
OF PAINTERS NO. 48 V. NLRB, 117 U.S. APP. D.C. 233, 328 F.2D 534
(1964). 

MR. JUSTICE BLACK, DISSENTING. 

THE COURT TODAY OPENS SLIGHTLY THE COURTHOUSE DOOR TO AN EMPLOYEE'S
INCIDENTAL CLAIM AGAINST HIS UNION FOR BREACH OF ITS DUTY OF FAIR
REPRESENTATION, ONLY TO SHUT IT IN HIS FACE WHEN HE SEEKS DIRECT
JUDICIAL RELIEF FOR HIS UNDERLYING AND MORE VALUABLE BREACH-OF-CONTRACT
CLAIM AGAINST HIS EMPLOYER.  THIS RESULT FOLLOWS FROM THE COURT'S
ANNOUNCEMENT IN THIS CASE, INVOLVING AN EMPLOYEE'S SUIT AGAINST HIS
UNION, OF A NEW RULE TO GOVERN AN EMPLOYEE'S SUIT AGAINST HIS
EMPLOYER.  THE RULE IS THAT BEFORE AN EMPLOYEE CAN SUE HIS EMPLOYER
UNDER SEC.  301 OF THE L.M.R.A. FOR A SIMPLE BREACH OF HIS EMPLOYMENT
CONTRACT, THE EMPLOYEE MUST PROVE NOT ONLY THAT HE ATTEMPTED TO EXHAUST
HIS CONTRACTUAL REMEDIES, BUT THAT HIS ATTEMPT TO EXHAUST THEM WAS
FRUSTRATED BY "ARBITRARY, DISCRIMINATORY, OR  ...  BAD FAITH" CONDUCT
ON THE PART OF HIS UNION.  WITH THIS NEW RULE AND ITS RESULT I CANNOT
AGREE. 

THE COURT RECOGNIZES, AS IT MUST, THAT THE JURY IN THIS CASE FOUND AT
LEAST THAT BENJAMIN OWENS WAS FIT FOR WORK, THAT HIS GRIEVANCE AGAINST
SWIFT WAS MERITORIOUS, AND THAT SWIFT BREACHED THE COLLECTIVE
BARGAINING AGREEMENT WHEN IT WRONGFULLY DISCHARGED HIM.  THE COURT ALSO
NOTES IN PASSING THAT OWENS* HAS A SEPARATE ACTION FOR BREACH OF
CONTRACT PENDING AGAINST SWIFT IN THE STATE COURTS.  AND IN PART IV OF
ITS OPINION, THE COURT VIGOROUSLY INSISTS THAT "THERE IS NO REASON TO
EXEMPT THE EMPLOYER FROM CONTRACTUAL DAMAGES WHICH HE WOULD OTHERWISE
HAVE HAD TO PAY," THAT THE "EMPLOYEE SHOULD HAVE NO DIFFICULTY
RECOVERING THESE DAMAGES FROM THE EMPLOYER" FOR HIS "UNRELATED BREACH
OF CONTRACT," AND THAT "THE EMPLOYEE IS ASSURED OF DIRECT RECOVERY FROM
THE EMPLOYER."  BUT THIS REASSURANCE IN PART IV GIVES NO COMFORT TO
OWENS, FOR PART IV IS BASED ON THE ASSUMPTION THAT THE UNION BREACHED
ITS DUTY TO OWENS, AN ASSUMPTION WHICH, IN PART III OF ITS OPINION, THE
COURT FINDS UNSUPPORTED BY THE FACTS OF THIS CASE.  WHAT THIS ALL
MEANS, THOUGH THE COURT DOES NOT EXPRESSLY SAY IT, IS THAT OWENS WILL
BE NO MORE SUCCESSFUL IN HIS PENDING BREACH-OF-CONTRACT ACTION AGAINST
SWIFT THAN HE IS HERE IN HIS SUIT AGAINST THE UNION.  FOR THE COURT
MAKES IT CLEAR "THAT THE QUESTION OF WHETHER A UNION HAS BREACHED ITS
DUTY OF FAIR REPRESENTATION WILL  ...  BE A CRITICAL ISSUE IN A SUIT
UNDER L.M.R.A. SEC. 301," THAT "THE WRONGFULLY DISCHARGED EMPLOYEE MAY
BRING AN ACTION AGAINST HIS EMPLOYER" ONLY IF HE "CAN PROVE THAT THE
UNION  ...  BREACHED ITS DUTY OF FAIR REPRESENTATION IN ITS HANDLING OF
THE EMPLOYEE'S GRIEVANCE," AND "THAT THE EMPLOYEE, AS PART AND PARCEL
OF HIS SEC. 301 ACTION, FINDS IT NECESSARY TO PROVE AN UNFAIR LABOR
PRACTICE BY THE UNION."  THUS, WHEN OWENS ATTEMPTS TO PROCEED WITH HIS
PENDING BREACH-OF-CONTRACT ACTION AGAINST SWIFT, SWIFT WILL UNDOUBTEDLY
SECURE ITS PROMPT DISMISSAL BY POINTING TO THE COURT'S CONCLUSION HERE
THAT THE UNION HAS NOT BREACHED ITS DUTY OF FAIR REPRESENTATION.  THUS,
OWENS, WHO NOW HAS OBTAINED A JUDICIAL DETERMINATION THAT HE WAS
WRONGFULLY DISCHARGED IS LEFT REMEDILESS, AND SWIFT, HAVING BREACHED
ITS CONTRACT, IS ALLOWED TO HIDE BEHIND, AND IS SHIELDED BY, THE
UNION'S CONDUCT.  I SIMPLY FAIL TO SEE HOW IT SHOULD MAKE ONE IOTA OF
DIFFERENCE, AS FAR AS THE "UNRELATED BREACH OF CONTRACT" BY SWIFT IS
CONCERNED, WHETHER THE UNION'S CONDUCT IS WRONGFUL OR RIGHTFUL. 
NEITHER PRECEDENT NOR LOGIC SUPPORTS THE COURT'S NEW ANNOUNCEMENT THAT
IT DOES. 

*OWENS DIED WHILE THE APPEAL OF HIS CASE FROM THE TRIAL COURT WAS
PENDING.  THE ADMINISTRATOR OF HIS ESTATE WAS SUBSTITUTED AND IS THE
RESPONDENT HEREIN THOUGH FOR SIMPLICITY IS REFERRED TO HEREIN AS
OWENS. 

CERTAINLY, NOTHING IN REPUBLIC STEEL CORP. V. MADDOX, 379 U.S. 650,
SUPPORTS THIS NEW RULE.  THAT WAS A CASE WHERE THE AGGRIEVED EMPLOYEE
ATTEMPTED TO "COMPLETELY SIDESTEP AVAILABLE GRIEVANCE PROCEDURES IN
FAVOR OF A LAWSUIT."  ID., AT 653.  NOTING THAT "IT CANNOT BE SAID  ...
THAT CONTRACT GRIEVANCE PROCEDURES ARE INADEQUATE TO PROTECT THE
INTERESTS OF AN AGGRIEVED EMPLOYEE UNTIL THE EMPLOYEE HAS ATTEMPTED TO
IMPLEMENT THE PROCEDURES AND FOUND THEM SO," IBID., THE COURT THERE
HELD THAT THE EMPLOYEE "MUST ATTEMPT USE OF THE CONTRACT GRIEVANCE
PROCEDURE," ID., AT 652, AND "MUST AFFORD THE UNION THE OPPORTUNITY TO
ACT ON HIS BEHALF," ID., AT 653.  I DISSENTED ON THE FIRM BELIEF THAT
AN EMPLOYEE SHOULD BE FREE TO LITIGATE HIS OWN LAWSUIT WITH HIS OWN
LAWYER IN A COURT BEFORE A JURY, RATHER THAN BEING FORCED TO ENTRUST
HIS CLAIM TO A UNION WHICH, EVEN IF IT DID AGREE TO PRESS IT, WOULD BE
REQUIRED TO SUBMIT IT TO ARBITRATION.  AND EVEN IF, AS THE COURT
IMPLIED, "THE WORKER WOULD BE ALLOWED TO SUE AFTER HE HAD PRESENTED HIS
CLAIM TO THE UNION AND AFTER HE HAD SUFFERED THE INEVITABLE
DISCOURAGEMENT AND DELAY WHICH NECESSARILY ACCOMPANIES THE UNION'S
REFUSAL TO PRESS HIS CLAIM," ID., AT 669, I COULD FIND NO THREAT TO
PEACEFUL LABOR RELATIONS OR TO THE UNION'S PRESTIGE IN ALLOWING AN
EMPLOYEE TO BY-PASS COMPLETELY CONTRACTUAL REMEDIES IN FAVOR OF A
TRADITIONAL BREACH-OF-CONTRACT LAWSUIT FOR BACK PAY OR WAGE
SUBSTITUTES.  HERE, OF COURSE, BENJAMIN OWENS DID NOT "COMPLETELY
SIDESTEP AVAILABLE GRIEVANCE PROCEDURES IN FAVOR OF A LAWSUIT."  WITH
COMPLETE RESPECT FOR THE UNION'S AUTHORITY AND DEFERENCE TO THE
CONTRACT GRIEVANCE PROCEDURES, HE NOT ONLY GAVE THE UNION A CHANCE TO
ACT ON HIS BEHALF, BUT IN EVERY WAY POSSIBLE TRIED TO CONVINCE IT THAT
HIS CLAIM WAS MERITORIOUS AND SHOULD BE CARRIED THROUGH THE FIFTH STEP
TO ARBITRATION.  IN SHORT, HE DID EVERYTHING THE COURT'S OPINION IN
MADDOX SAID HE SHOULD DO, AND YET NOW THE COURT SAYS SO MUCH IS NOT
ENOUGH. 

IN MADDOX, I NOTED THAT THE "CASES REALLY IN POINT ARE THOSE WHICH
INVOLVED AGREEMENTS GOVERNED BY THE RAILWAY LABOR ACT AND WHICH
EXPRESSLY REFUSED TO HOLD THAT A DISCHARGED WORKED MUST PURSUE
COLLECTIVE BARGAINING GRIEVANCE PROCEDURES BEFORE SUING IN A COURT FOR
WRONGFUL DISCHARGE.  TRANSCONTINENTAL & WESTERN AIR, INC. V. KOPPAL,
345 U.S. 653; MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630."  379
U.S., AT 666.  I ALSO OBSERVED THAT THE COURT'S DECISION IN MADDOX
"RAISED THE OVERRULING AXE SO HIGH (OVER THOSE CASES) THAT ITS FALLING
IS JUST ABOUT AS CERTAIN AS THE CHANGING OF THE SEASONS."  ID., AT
667.  IN THE LATTER OBSERVATION I WAS MISTAKEN.  THE COURT HAS THIS
TERM, IN WALKER V. SOUTHERN R. CO., 385 U.S. 196, REFUSED TO OVERRULE
IN LIGHT OF MADDOX SUCH CASES AS MOORE AND KOPPAL.  NOTING THE LONG
DELAYS ATTENDANT UPON EXHAUSTING ADMINISTRATIVE REMEDIES UNDER THE
RAILWAY LABOR ACT, THE COURT BASED THIS REFUSAL ON "THE CONTRAST
BETWEEN THE ADMINISTRATIVE REMEDY" AVAILABLE TO MADDOX AND THAT
AVAILABLE TO WALKER.  IF, AS THE COURT SUGGESTED, THE AVAILABILITY OF
AN ADMINISTRATIVE REMEDY DETERMINES WHETHER AN EMPLOYEE CAN SUE WITHOUT
FIRST EXHAUSTING IT, CAN THERE BE ANY DOUBT THAT OWENS WHO HAD NO
ADMINISTRATIVE REMEDY SHOULD BE AS FREE TO SUE AS WALKER WHO HAD A SLOW
ONE?  UNLIKE MADDOX, OWENS ATTEMPTED TO IMPLEMENT THE CONTRACT
GRIEVANCE PROCEDURES AND FOUND THEM INADEQUATE.  TODAY'S DECISION,
FOLLOWING IN THE WAKE OF WALKER V. SOUTHERN R. CO., MERELY PERPETUATES
AN UNFORTUNATE ANOMALY CREATED BY MADDOX IN THE LAW OF LABOR
RELATIONS. 

THE RULE ANNOUNCED IN MADDOX, I THOUGHT, WAS A "BRAIN CHILD" OF THE
COURT'S RECENT PREFERENCE FOR ARBITRATION.  BUT I AM UNABLE TO ASCRIBE
ANY SUCH GENESIS TO TODAY'S RULE, FOR ARBITRATION IS PRECISELY WHAT
OWENS SOUGHT AND PREFERRED.  TODAY THE COURT HOLDS THAT AN EMPLOYEE
WITH A MERITORIOUS CLAIM HAS NO ABSOLUTE RIGHT TO HAVE IT EITHER
LITIGATED OR ARBITRATED.  FEARING THAT ARBITRATORS WOULD BE OVERWORKED,
THE COURT ALLOWS UNIONS UNILATERALLY TO DETERMINE NOT TO TAKE A
GRIEVANCE TO ARBITRATION - THE FIRST STEP IN THE CONTRACT GRIEVANCE
PROCEDURE AT WHICH THE CLAIM WOULD BE PRESENTED TO AN IMPARTIAL THIRD
PARTY - AS LONG AS THE UNION DECISIONS ARE NEITHER "ARBITRARY" NOR "IN
BAD FAITH."  THE COURT DERIVES THIS STANDARD OF CONDUCT FROM A LONG
LINE OF CASES HOLDING THAT "A BREACH OF THE STATUTORY DUTY OF FAIR
REPRESENTATION OCCURS ONLY WHEN A UNION'S CONDUCT TOWARD A MEMBER OF
THE COLLECTIVE BARGAINING UNIT IS ARBITRARY, DISCRIMINATORY, OR IN BAD
FAITH."  WHAT THE COURT OVERLOOKS IS THAT THOSE CASES LAID DOWN THIS
STANDARD IN THE CONTEXT OF SITUATIONS WHERE THE EMPLOYEE'S SOLE OR
FUNDAMENTAL COMPLAINT WAS AGAINST THE UNION.  THERE WAS NOT THE
SLIGHTEST HINT IN THOSE CASES THAT THE SAME STANDARD WOULD APPLY WHERE
THE EMPLOYEE'S PRIMARY COMPLAINT WAS AGAINST HIS EMPLOYER FOR BREACH OF
CONTRACT AND WHERE HE ONLY INCIDENTALLY CONTENDED THAT THE UNION'S
CONDUCT PREVENTED THE ADJUDICATION, BY EITHER COURT OR ARBITRATOR, OF
THE UNDERLYING GRIEVANCE.  IF THE COURT HERE WERE SATISFIED WITH MERELY
HOLDING THAT IN THIS SITUATION THE EMPLOYEE COULD NOT RECOVER DAMAGES
FROM THE UNION UNLESS THE UNION BREACHED ITS DUTY OF FAIR
REPRESENTATION, THEN IT WOULD BE ONE THING TO SAY THAT THE UNION DID
NOT DO SO IN MAKING A GOOD-FAITH DECISION NOT TO TAKE THE EMPLOYEE'S
GRIEVANCE TO ARBITRATION.  BUT IF, AS THE COURT GOES ON TO HOLD, THE
EMPLOYEE CANNOT SUE HIS EMPLOYER FOR BREACH OF CONTRACT UNLESS HIS
FAILURE TO EXHAUST CONTRACTUAL REMEDIES IS DUE TO THE UNION'S BREACH OF
ITS DUTY OF FAIR REPRESENTATION, THEN I AM QUITE UNWILLING TO SAY THAT
THE UNION'S REFUSAL TO EXHAUST SUCH REMEDIES - HOWEVER NONARBITRARY -
DOES NOT AMOUNT TO A BREACH OF ITS DUTY.  EITHER THE EMPLOYEE SHOULD BE
ABLE TO SUE HIS EMPLOYER FOR BREACH OF CONTRACT AFTER HAVING ATTEMPTED
TO EXHAUST HIS CONTRACTUAL REMEDIES, OR THE UNION SHOULD HAVE AN
ABSOLUTE DUTY TO EXHAUST CONTRACTUAL REMEDIES ON HIS BEHALF.  THE
MERITS OF AN EMPLOYEE'S GRIEVANCE WOULD THUS BE DETERMINED BY EITHER A
JURY OR AN ARBITRATOR.  UNDER TODAY'S DECISION IT WILL NEVER BE
DETERMINED BY EITHER. 

AND IT SHOULD BE CLEAR THAT THE COURT'S OPINION GOES MUCH FURTHER
THAN SIMPLY HOLDING THAT AN EMPLOYEE HAS NO ABSOLUTE RIGHT TO HAVE THE
UNION TAKE HIS GRIEVANCE TO ARBITRATION.  HERE, OF COURSE, THE UNION
SUPERVISED THE GRIEVANCE INTO THE FOURTH STEP OF THE CONTRACT MACHINERY
AND DROPPED IT JUST PRIOR TO ARBITRATION ON ITS BELIEF THAT THE OUTCOME
OF ARBITRATION WOULD BE UNFAVORABLE.  BUT LIMITED ONLY BY THE STANDARD
OF ARBITRARINESS, THERE WAS CLEARLY NO NEED FOR THE UNION TO GO THAT
FAR.  SUPPOSE, FOR INSTANCE, THE UNION HAD A RULE THAT IT WOULD NOT
PROSECUTE A GRIEVANCE EVEN TO THE FIRST STEP UNLESS THE GRIEVANCE WERE
FILED BY THE EMPLOYEE WITHIN 24 HOURS AFTER IT AROSE.  PURSUANT TO THIS
RULE, THE UNION MIGHT COMPLETELY REFUSE TO PROSECUTE A GRIEVANCE FILED
SEVERAL DAYS LATE.  THUS, THE EMPLOYEE, NO MATTER HOW MERITORIOUS HIS
GRIEVANCE, WOULD GET ABSOLUTELY NOWHERE.  AND UNLESS HE COULD PROVE
THAT THE UNION'S RULE WAS ARBITRARY (A STANDARD WHICH NO ONE CAN
DEFINE), THE EMPLOYEE WOULD GET ABSOLUTELY NO CONSIDERATION OF THE
MERITS OF HIS GRIEVANCE - EITHER BY A JURY, AN ARBITRATOR, THE
EMPLOYER, OR BY THE UNION.  THE COURT SUGGESTS THREE REASONS FOR GIVING
THE UNION THIS ALMOST UNLIMITED DISCRETION TO DEPRIVE INJURED EMPLOYEES
OF ALL REMEDIES FOR BREACH OF CONTRACT.  THE FIRST IS THAT "FRIVOLOUS
GRIEVANCES" WILL BE ENDED PRIOR TO TIME-CONSUMING AND COSTLY
ARBITRATION.  BUT HERE NO ONE, NOT EVEN THE UNION, SUGGESTS THAT
BENJAMIN OWENS' GRIEVANCE WAS FRIVOLOUS.  THE UNION DECIDED NOT TO TAKE
IT TO ARBITRATION SIMPLY BECAUSE THE UNION DOUBTED THE CHANCE OF
SUCCESS.  EVEN IF THIS WAS A GOOD-FAITH DOUBT, I THINK THE UNION HAD
THE DUTY TO PRESENT THIS CONTESTED, BUT SERIOUS, CLAIM TO THE
ARBITRATOR WHOSE VERY FUNCTION IS TO DECIDE SUCH CLAIMS ON THE BASIS OF
WHAT HE BELIEVES TO BE RIGHT.  SECOND, THE COURT SAYS THAT ALLOWING THE
UNION TO SETTLE GRIEVANCES PRIOR TO ARBITRATION WILL ASSURE CONSISTENT
TREATMENT OF "MAJOR PROBLEM AREAS IN THE INTERPRETATION OF THE
COLLECTIVE BARGAINING CONTRACT."  BUT CAN IT BE ARGUED THAT WHETHER
OWENS WAS "FIT TO WORK" PRESENTS A MAJOR PROBLEM IN THE INTERPRETATION
OF THE COLLECTIVE BARGAINING AGREEMENT?  THE PROBLEM HERE WAS ONE OF
INTERPRETING MEDICAL REPORTS, NOT A COLLECTIVE BARGAINING AGREEMENT,
AND OF EVALUATING OTHER EVIDENCE OF OWENS' PHYSICAL CONDITION.  I DOUBT
WHETHER CONSISTENCY IS EITHER POSSIBLE OR DESIRABLE IN DETERMINING
WHETHER A PARTICULAR EMPLOYEE IS ABLE TO PERFORM A PARTICULAR JOB. 
FINALLY, THE COURT SUGGESTS THAT ITS DECISION "FURTHERS THE INTEREST OF
THE UNION AS STATUTORY AGENT."  I THINK THIS IS THE REAL REASON FOR
TODAY'S DECISION WHICH ENTIRELY OVERLOOKS THE INTERESTS OF THE INJURED
EMPLOYEE, THE ONLY ONE WHO HAS ANYTHING TO LOSE.  OF COURSE, ANYTHING
WHICH GIVES THE UNION LIFE AND DEATH POWER OVER THOSE WHOM IT IS
SUPPOSED TO REPRESENT FURTHERS ITS "INTEREST."  I SIMPLY FAIL TO SEE
HOW THE UNION'S LEGITIMATE ROLE AS STATUTORY AGENT IS UNDERMINED BY
REQUIRING IT TO PROSECUTE ALL SERIOUS GRIEVANCES TO A CONCLUSION OR BY
ALLOWING THE INJURED EMPLOYEE TO SUE HIS EMPLOYER AFTER HE HAS GIVEN
THE UNION A CHANCE TO ACT ON HIS BEHALF. 

HENCEFORTH, IN ALMOST EVERY SEC. 301 BREACH-OF-CONTRACT SUIT BY AN
EMPLOYEE AGAINST AN EMPLOYER, THE EMPLOYEE WILL HAVE THE ADDITIONAL
BURDEN OF PROVING THAT THE UNION ACTED ARBITRARILY OR IN BAD FAITH. 
THE COURT NEVER EXPLAINS WHAT IS MEANT BY THIS VAGUE PHRASE OR HOW
TRIAL JUDGES ARE INTELLIGENTLY TO TRANSLATE IT TO A JURY.  MUST THE
EMPLOYEE PROVE THAT THE UNION IN FACT ACTED ARBITRARILY, OR WILL IT BE
SUFFICIENT TO SHOW THAT THE EMPLOYEE'S GRIEVANCE WAS SO MERITORIOUS
THAT A REASONABLE UNION WOULD NOT HAVE REFUSED TO CARRY IT TO
ARBITRATION?  MUST THE EMPLOYEE JOIN THE UNION IN HIS SEC. 301 SUIT
AGAINST THE EMPLOYER, OR MUST HE JOIN THE EMPLOYER IN HIS UNFAIR
REPRESENTATION SUIT AGAINST THE UNION?  HOWEVER THESE QUESTIONS ARE
ANSWERED, TODAY'S DECISION, REQUIRING THE INDIVIDUAL EMPLOYEE TO TAKE
ON BOTH THE EMPLOYER AND THE UNION IN EVERY SUIT AGAINST THE EMPLOYER
AND TO PROVE NOT ONLY THAT THE EMPLOYER BREACHED ITS CONTRACT, BUT THAT
THE UNION ACTED ARBITRARILY, CONVERTS WHAT WOULD OTHERWISE BE A SIMPLE
BREACH-OF-CONTRACT ACTION INTO A THREE-RING DONNYBROOK.  IT PUTS AN
INTOLERABLE BURDEN ON EMPLOYEES WITH MERITORIOUS GRIEVANCES AND MEANS
THEY WILL FREQUENTLY BE LEFT WITH NO REMEDY.  TODAY'S DECISION, WHILE
GIVING THE WORKER AN EPHEMERAL RIGHT TO SUE HIS UNION FOR BREACH OF ITS
DUTY OF FAIR REPRESENTATION, CREATES INSURMOUNTABLE OBSTACLES TO BLOCK
HIS FAR MORE VALUABLE RIGHT TO SUE HIS EMPLOYER FOR BREACH OF THE
COLLECTIVE BARGAINING AGREEMENT. 
..END :


















SHELL OIL CO. V. CALIFORNIA 386 U.S. 211 


NO. 863.  DECIDED FEBRUARY 27, 1967.  - 64 CAL. 2D 713, 414 P.2D 820,
APPEAL DISMISSED. 


SHELL OIL CO. V. STATE BOARD OF EQUALIZATION OF CALIFORNIA ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















BOGART V. REAGAN 386 U.S. 211 


NO. 1044, MISC.  DECIDED FEBRUARY 27, 1967.  - APPEAL DISMISSED. 


BOGART V. REAGAN, GOVERNOR OF CALIFORNIA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT
OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  THE REQUEST FOR OTHER RELIEF IS DENIED. 
..END :

















PHILLIPS V. CALIFORNIA 386 U.S. 212 


NO. 684, MISC.  DECIDED FEBRUARY 27, 1967.  - CERTIORARI GRANTED; 240
CAL. APP. 2D 197, 49 CAL. RPTR.  480, REVERSED. 


PHILLIPS ET VIR V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
CHAPMAN V. CALIFORNIA, ANTE, P. 18. 

MR. JUSTICE BLACK AND MR. JUSTICE CLARK ARE OF THE OPINION THAT THE
JUDGMENT SHOULD BE VACATED AND THE CASE REMANDED FOR FURTHER
CONSIDERATION IN LIGHT OF CHAPMAN V. CALIFORNIA, SUPRA. 

MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT BELOW FOR THE REASONS
SET FORTH IN HIS DISSENTING OPINION IN CHAPMAN V. CALIFORNIA, SUPRA, AT
45. 
..END :







CHAPMAN V. CALIFORNIA 386 U.S. 18 


NO. 95.  ARGUED DECEMBER 7-8, 1966.  - DECIDED FEBRUARY 20, 1967.  - 63
CAL. 2D 178, 404 P.2D 209, REVERSED. 


PETITIONERS WERE CONVICTED FOLLOWING A CALIFORNIA STATE CRIMINAL TRIAL
DURING WHICH THE PROSECUTOR, AS THEN PERMITTED BY A STATE
CONSTITUTIONAL PROVISION, EXTENSIVELY COMMENTED ON THEIR FAILURE TO
TESTIFY.  THE TRIAL JUDGE ALSO CHARGED THE JURY THAT IT COULD DRAW
ADVERSE INFERENCES FROM SUCH FAILURE.  AFTER THE TRIAL, BUT BEFORE
PETITIONERS' APPEAL WAS CONSIDERED, THE STATE CONSTITUTIONAL PROVISION
WAS INVALIDATED BY GRIFFIN V. CALIFORNIA, 380 U.S. 609.  THOUGH
ADMITTING THAT PETITIONERS HAD BEEN DENIED A FEDERAL CONSTITUTIONAL
RIGHT, THE CALIFORNIA SUPREME COURT, APPLYING THE STATE CONSTITUTION'S
HARMLESS-ERROR PROVISION, UPHELD THE CONVICTIONS.  HELD: 

1.  THIS COURT HAS JURISDICTION TO FORMULATE A HARMLESS-ERROR RULE
THAT WILL PROTECT A DEFENDANT'S FEDERAL RIGHT UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO BE FREE FROM STATE PENALTIES FOR NOT
TESTIFYING IN HIS CRIMINAL TRIAL.  PP. 20-21. 

2.  BEFORE A CONSTITUTIONAL ERROR CAN BE HELD TO BE HARMLESS THE
COURT MUST BE ABLE TO DECLARE ITS BELIEF THAT IT WAS HARMLESS BEYOND A
REASONABLE DOUBT.  PP. 21-24. 

3.  THE STATE IN THIS CASE DID NOT DEMONSTRATE BEYOND A REASONABLE
DOUBT THAT THE PROSECUTOR'S REPETITIVE COMMENTS TO THE JURY, AND THE
TRIAL COURT'S INSTRUCTION CONCERNING THE PETITIONERS' FAILURE TO
TESTIFY DID NOT CONTRIBUTE TO THEIR CONVICTIONS.  PP. 24-26. 

CHAPMAN ET AL. V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, RUTH ELIZABETH CHAPMAN AND THOMAS LEROY TEALE, WERE
CONVICTED IN A CALIFORNIA STATE COURT UPON A CHARGE THAT THEY ROBBED,
KIDNAPED, AND MURDERED A BARTENDER.  SHE WAS SENTENCED TO LIFE
IMPRISONMENT AND HE TO DEATH.  AT THE TIME OF THE TRIAL, ART. I, SEC
13, OF THE STATE'S CONSTITUTION PROVIDED THAT "IN ANY CRIMINAL CASE,
WHETHER THE DEFENDANT TESTIFIES OR NOT, HIS FAILURE TO EXPLAIN OR TO
DENY BY HIS TESTIMONY ANY EVIDENCE OR FACTS IN THE CASE AGAINST HIM MAY
BE COMMENTED UPON BY THE COURT AND BY COUNSEL, AND MAY BE CONSIDERED BY
THE COURT OR THE JURY."  BOTH PETITIONERS IN THIS CASE CHOSE NOT TO
TESTIFY AT THEIR TRIAL, AND THE STATE'S ATTORNEY PROSECUTING THEM TOOK
FULL ADVANTAGE OF HIS RIGHT UNDER THE STATE CONSTITUTION TO COMMENT
UPON THEIR FAILURE TO TESTIFY, FILLING HIS ARGUMENT TO THE JURY FROM
BEGINNING TO END WITH NUMEROUS REFERENCES TO THEIR SILENCE AND
INFERENCES OF THEIR GUILT RESULTING THEREFROM.  (FN1)  THE TRIAL COURT
ALSO CHARGED THE JURY THAT IT COULD DRAW ADVERSE INFERENCES FROM
PETITIONERS' FAILURE TO TESTIFY.  (FN2)  SHORTLY AFTER THE TRIAL, BUT
BEFORE PETITIONERS' CASES HAD BEEN CONSIDERED ON APPEAL BY THE
CALIFORNIA SUPREME COURT, THIS COURT DECIDED GRIFFIN V. CALIFORNIA, 380
U.S. 609, IN WHICH WE HELD CALIFORNIA'S CONSTITUTIONAL PROVISION AND
PRACTICE INVALID ON THE GROUND THAT THEY PUT A PENALTY ON THE EXERCISE
OF A PERSON'S RIGHT NOT TO BE COMPELLED TO BE A WITNESS AGAINST
HIMSELF, GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND MADE APPLICABLE TO CALIFORNIA AND THE OTHER STATES BY
THE FOURTEENTH AMENDMENT.  SEE MALLOY V. HOGAN, 378 U.S. 1.  ON APPEAL,
THE STATE SUPREME COURT, 63 CAL. 2D 178, 404 P.2D 209, ADMITTING THAT
PETITIONERS HAD BEEN DENIED A FEDERAL CONSTITUTIONAL RIGHT BY THE
COMMENTS ON THEIR SILENCE, NEVERTHELESS AFFIRMED, APPLYING THE STATE
CONSTITUTION'S HARMLESS-ERROR PROVISION, WHICH FORBIDS REVERSAL UNLESS
"THE COURT SHALL BE OF THE OPINION THAT THE ERROR COMPLAINED OF HAS
RESULTED IN A MISCARRIAGE OF JUSTICE."  (FN3)  WE GRANTED CERTIORARI
LIMITED TO THESE QUESTIONS: 

"WHERE THERE IS A VIOLATION OF THE RULE OF GRIFFIN V. CALIFORNIA, 380
U.S. 609, (1) CAN THE ERROR BE HELD TO BE HARMLESS, AND (2) IF SO, WAS
THE ERROR HARMLESS IN THIS CASE?"  383 U.S. 956-957. 

IN THIS COURT PETITIONERS CONTEND THAT BOTH THESE QUESTIONS ARE
FEDERAL ONES TO BE DECIDED UNDER FEDERAL LAW; THAT UNDER FEDERAL LAW WE
SHOULD HOLD THAT DENIAL OF A FEDERAL CONSTITUTIONAL RIGHT, NO MATTER
HOW UNIMPORTANT, SHOULD AUTOMATICALLY RESULT IN REVERSAL OF A
CONVICTION, WITHOUT REGARD TO WHETHER THE ERROR IS CONSIDERED HARMLESS;
AND THAT, IF WRONG IN THIS, THE VARIOUS COMMENTS ON PETITIONERS'
SILENCE CANNOT, APPLYING A FEDERAL STANDARD, BE CONSIDERED HARMLESS
HERE. 

                                         I. 

BEFORE DECIDING THE TWO QUESTIONS HERE - WHETHER THERE CAN EVER BE
HARMLESS CONSTITUTIONAL ERROR AND WHETHER THE ERROR HERE WAS HARMLESS -
WE MUST FIRST DECIDE WHETHER STATE OR FEDERAL LAW GOVERNS.   THE
APPLICATION OF A STATE HARMLESS-ERROR RULE IS, OF COURSE, A STATE
QUESTION WHERE IT INVOLVES ONLY ERRORS OF STATE PROCEDURE OR STATE
LAW.  BUT THE ERROR FROM WHICH THESE PETITIONERS SUFFERED WAS A DENIAL
OF RIGHTS GUARANTEED AGAINST INVASION BY THE FIFTH AND FOURTEENTH
AMENDMENTS, RIGHTS ROOTED IN THE BILL OF RIGHTS, OFFERED AND CHAMPIONED
IN THE CONGRESS BY JAMES MADISON, WHO TOLD THE CONGRESS THAT THE
"INDEPENDENT" FEDERAL COURTS WOULD BE THE "GUARDIANS OF THOSE RIGHTS." 
(FN4) WHETHER A CONVICTION FOR CRIME SHOULD STAND WHEN A STATE HAS
FAILED TO ACCORD FEDERAL CONSTITUTIONALLY GUARANTEED RIGHTS IS EVERY
BIT AS MUCH OF A FEDERAL QUESTION AS WHAT PARTICULAR FEDERAL
CONSTITUTIONAL PROVISIONS THEMSELVES MEAN, WHAT THEY GUARANTEE, AND
WHETHER THEY HAVE BEEN DENIED.  WITH FAITHFULNESS TO THE CONSTITUTIONAL
UNION OF THE STATES, WE CANNOT LEAVE TO THE STATES THE FORMULATION OF
THE AUTHORITATIVE LAWS, RULES, AND REMEDIES DESIGNED TO PROTECT PEOPLE
FROM INFRACTIONS BY THE STATES OF FEDERALLY GUARANTEED RIGHTS.  WE HAVE
NO HESITATION IN SAYING THAT THE RIGHT OF THESE PETITIONERS NOT TO BE
PUNISHED FOR EXERCISING THEIR FIFTH AND FOURTEENTH AMENDMENT RIGHT TO
BE SILENT - EXPRESSLY CREATED BY THE FEDERAL CONSTITUTION ITSELF - IS A
FEDERAL RIGHT WHICH, IN THE ABSENCE OF APPROPRIATE CONGRESSIONAL
ACTION, IT IS OUR RESPONSIBILITY TO PROTECT BY FASHIONING THE NECESSARY
RULE. 

                                        II. 

WE ARE URGED BY PETITIONERS TO HOLD THAT ALL FEDERAL CONSTITUTIONAL
ERRORS, REGARDLESS OF THE FACTS AND CIRCUMSTANCES, MUST ALWAYS BE
DEEMED HARMFUL.  SUCH A HOLDING, AS PETITIONERS CORRECTLY POINT OUT,
WOULD REQUIRE AN AUTOMATIC REVERSAL OF THEIR CONVICTIONS AND MAKE
FURTHER DISCUSSION UNNECESSARY.  WE DECLINE TO ADOPT ANY SUCH RULE. 
ALL 50 STATES HAVE HARMLESS-ERROR STATUTES OR RULES, AND THE UNITED
STATES LONG AGO THROUGH ITS CONGRESS ESTABLISHED FOR ITS COURTS THE
RULE THAT JUDGMENTS SHALL NOT BE REVERSED FOR "ERRORS OR DEFECTS WHICH
DO NOT AFFECT THE SUBSTANTIAL RIGHTS OF THE PARTIES."  28 U.S.C. SEC
2111.  (FN5)  NONE OF THESE RULES ON ITS FACE DISTINGUISHES BETWEEN
FEDERAL CONSTITUTIONAL ERRORS AND ERRORS OF STATE LAW OR FEDERAL
STATUTES AND RULES.  ALL OF THESE RULES, STATE OR FEDERAL, SERVE A VERY
USEFUL PURPOSE INSOFAR AS THEY BLOCK SETTING ASIDE CONVICTIONS FOR
SMALL ERRORS OR DEFECTS THAT HAVE LITTLE, IF ANY, LIKELIHOOD OF HAVING
CHANGED THE RESULT OF THE TRIAL.  WE CONCLUDE THAT THERE MAY BE SOME
CONSTITUTIONAL ERRORS WHICH IN THE SETTING OF A PARTICULAR CASE ARE SO
UNIMPORTANT AND INSIGNIFICANT THAT THEY MAY, CONSISTENT WITH THE
FEDERAL CONSTITUTION, BE DEEMED HARMLESS, NOT REQUIRING THE AUTOMATIC
REVERSAL OF THE CONVICTION. 

                                       III. 

IN FASHIONING A HARMLESS-CONSTITUTIONAL-ERROR RULE, WE MUST RECOGNIZE
THAT HARMLESS-ERROR RULES CAN WORK VERY UNFAIR AND MISCHIEVOUS RESULTS
WHEN, FOR EXAMPLE, HIGHLY IMPORTANT AND PERSUASIVE EVIDENCE, OR
ARGUMENT, THOUGH LEGALLY FORBIDDEN, FINDS ITS WAY INTO A TRIAL IN WHICH
THE QUESTION OF GUILT OR INNOCENCE IS A CLOSE ONE.  WHAT HARMLESS-ERROR
RULES ALL AIM AT IS A RULE THAT WILL SAVE THE GOOD IN HARMLESS-ERROR
PRACTICES WHILE AVOIDING THE BAD, SO FAR AS POSSIBLE. 

THE FEDERAL RULE EMPHASIZES "SUBSTANTIAL RIGHTS" AS DO MOST OTHERS. 
THE CALIFORNIA CONSTITUTIONAL RULE EMPHASIZES "A MISCARRIAGE OF
JUSTICE," (FN6) BUT THE CALIFORNIA COURTS HAVE NEUTRALIZED THIS TO SOME
EXTENT BY EMPHASIS, AND PERHAPS OVEREMPHASIS, UPON THE COURT'S VIEW OF
"OVERWHELMING EVIDENCE."   (FN7)  WE PREFER THE APPROACH OF THIS COURT
IN DECIDING WHAT WAS HARMLESS ERROR IN OUR RECENT CASE OF FAHY V.
CONNECTICUT, 375 U.S. 85.  THERE WE SAID:  "THE QUESTION IS WHETHER
THERE IS A REASONABLE POSSIBILITY THAT THE EVIDENCE COMPLAINED OF MIGHT
HAVE CONTRIBUTED TO THE CONVICTION."  ID., AT 86-87.  ALTHOUGH OUR
PRIOR CASES HAVE INDICATED THAT THERE ARE SOME CONSTITUTIONAL RIGHTS SO
BASIC TO A FAIR TRIAL THAT THEIR INFRACTION CAN NEVER BE TREATED AS
HARMLESS ERROR, (FN8) THIS STATEMENT IN FAHY ITSELF BELIES ANY BELIEF
THAT ALL TRIAL ERRORS WHICH VIOLATE THE CONSTITUTION AUTOMATICALLY CALL
FOR REVERSAL.  AT THE SAME TIME, HOWEVER, LIKE THE FEDERAL HARMLESS
ERROR STATUTE, IT EMPHASIZES AN INTENTION NOT TO TREAT AS HARMLESS
THOSE CONSTITUTIONAL ERRORS THAT "AFFECT SUBSTANTIAL RIGHTS" OF A
PARTY.  AN ERROR IN ADMITTING PLAINLY RELEVANT EVIDENCE WHICH POSSIBLY
INFLUENCED THE JURY ADVERSELY TO A LITIGANT CANNOT, UNDER FAHY, BE
CONCEIVED OF AS HARMLESS.  CERTAINLY ERROR, CONSTITUTIONAL ERROR, IN
ILLEGALLY ADMITTING HIGHLY PREJUDICIAL EVIDENCE OR COMMENTS, CASTS ON
SOMEONE OTHER THAN THE PERSON PREJUDICED BY IT A BURDEN TO SHOW THAT IT
WAS HARMLESS.  IT IS FOR THAT REASON THAT THE ORIGINAL COMMON-LAW
HARMLESS-ERROR RULE PUT THE BURDEN ON THE BENEFICIARY OF THE ERROR
EITHER TO PROVE THAT THERE WAS NO INJURY OR TO SUFFER A REVERSAL OF HIS
ERRONEOUSLY OBTAINED JUDGMENT.  (FN9)  THERE IS LITTLE, IF ANY,
DIFFERENCE BETWEEN OUR STATEMENT IN FAHY V. CONNECTICUT ABOUT "WHETHER
THERE IS A REASONABLE POSSIBILITY THAT THE EVIDENCE COMPLAINED OF MIGHT
HAVE CONTRIBUTED TO THE CONVICTION" AND REQUIRING THE BENEFICIARY OF A
CONSTITUTIONAL ERROR TO PROVE BEYOND A REASONABLE DOUBT THAT THE ERROR
COMPLAINED OF DID NOT CONTRIBUTE TO THE VERDICT OBTAINED.  WE,
THEREFORE, DO NO MORE THAN ADHERE TO THE MEANING OF OUR FAHY CASE WHEN
WE HOLD, AS WE NOW DO, THAT BEFORE A FEDERAL CONSTITUTIONAL ERROR CAN
BE HELD HARMLESS, THE COURT MUST BE ABLE TO DECLARE A BELIEF THAT IT
WAS HARMLESS BEYOND A REASONABLE DOUBT.  WHILE APPELLATE COURTS DO NOT
ORDINARILY HAVE THE ORIGINAL TASK OF APPLYING SUCH A TEST, (FN10) IT IS
A FAMILIAR STANDARD TO ALL COURTS, AND WE BELIEVE ITS ADOPTION WILL
PROVIDE A MORE WORKABLE STANDARD, ALTHOUGH ACHIEVING THE SAME RESULT AS
THAT AIMED AT IN OUR FAHY CASE. 

                        IV. 

APPLYING THE FOREGOING STANDARD, WE HAVE NO DOUBT THAT THE ERROR IN
THESE CASES WAS NOT HARMLESS TO PETITIONERS.  TO REACH THIS CONCLUSION
ONE NEED ONLY GLANCE AT THE PROSECUTORIAL COMMENTS COMPILED FROM THE
RECORD BY PETITIONERS' COUNSEL AND (WITH MINOR OMISSIONS) SET FORTH IN
THE APPENDIX.  THE CALIFORNIA SUPREME COURT FAIRLY SUMMARIZED THE
EXTENT OF THESE COMMENTS AS FOLLOWS: 

"SUCH COMMENTS WENT TO THE MOTIVES FOR THE PROCUREMENT AND HANDLING
OF GUNS PURCHASED BY MRS. CHAPMAN, FUNDS OR THE LACK THEREOF IN MR.
TEALE'S POSSESSION IMMEDIATELY PRIOR TO THE KILLING, THE AMOUNT OF
INTOXICATING LIQUORS CONSUMED BY DEFENDANTS AT THE SPOT CLUB AND OTHER
TAVERNS, THE CIRCUMSTANCES OF THE SHOOTING IN THE AUTOMOBILE AND THE
REMOVAL OF THE VICTIM'S BODY THEREFROM, WHO FIRED THE FATAL SHOTS, WHY
DEFENDANTS USED A FALSE REGISTRATION AT A MOTEL SHORTLY AFTER THE
KILLING, THE MEANING OF A LETTER WRITTEN BY MRS. CHAPMAN SEVERAL DAYS
AFTER THE KILLING, WHY TEALE HAD A LOADED WEAPON IN HIS POSSESSION WHEN
APPREHENDED, THE MEANING OF STATEMENTS MADE BY TEALE AFTER HIS
APPREHENSION, WHY CERTAIN CLOTHING AND ARTICLES OF PERSONAL PROPERTY
WERE SHIPPED BY DEFENDANTS TO MISSOURI, WHAT CLOTHING MRS. CHAPMAN WORE
AT THE TIME OF THE KILLING, CONFLICTING STATEMENTS AS TO MRS. CHAPMAN'S
WHEREABOUTS IMMEDIATELY PRECEDING THE KILLING AND, GENERALLY, THE
OVERALL COMMISSION OF THE CRIME."  63 CAL. 2D, AT 196, 404 P.2D, AT
220. 

THUS, THE STATE PROSECUTOR'S ARGUMENT AND THE TRIAL JUDGE'S
INSTRUCTION TO THE JURY CONTINUOUSLY AND REPEATEDLY IMPRESSED THE JURY
THAT FROM THE FAILURE OF PETITIONERS TO TESTIFY, TO ALL INTENTS AND
PURPOSES, THE INFERENCES FROM THE FACTS IN EVIDENCE HAD TO BE DRAWN IN
FAVOR OF THE STATE - IN SHORT, THAT BY THEIR SILENCE PETITIONERS HAD
SERVED AS IRREFUTABLE WITNESSES AGAINST THEMSELVES.  AND THOUGH THE
CASE IN WHICH THIS OCCURRED PRESENTED A REASONABLY STRONG
"CIRCUMSTANTIAL WEB OF EVIDENCE" AGAINST PETITIONERS, 63 CAL.  2D, AT
197, 404 P.2D, AT 220, IT WAS ALSO A CASE IN WHICH, ABSENT THE
CONSTITUTIONALLY FORBIDDEN COMMENTS, HONEST, FAIR-MINDED JURORS MIGHT
VERY WELL HAVE BROUGHT IN NOT-GUILTY VERDICTS.  UNDER THESE
CIRCUMSTANCES, IT IS COMPLETELY IMPOSSIBLE FOR US TO SAY THAT THE STATE
HAS DEMONSTRATED, BEYOND A REASONABLE DOUBT, THAT THE PROSECUTOR'S
COMMENTS AND THE TRIAL JUDGE'S INSTRUCTION DID NOT CONTRIBUTE TO
PETITIONERS' CONVICTIONS.  SUCH A MACHINE-GUN REPETITION OF A DENIAL OF
CONSTITUTIONAL RIGHTS, DESIGNED AND CALCULATED TO MAKE PETITIONERS'
VERSION OF THE EVIDENCE WORTHLESS, CAN NO MORE BE CONSIDERED HARMLESS
THAN THE INTRODUCTION AGAINST A DEFENDANT OF A COERCED CONFESSION. 
SEE, E.G., PAYNE V. ARKANSAS, 356 U.S. 560.  PETITIONERS ARE ENTITLED
TO A TRIAL FREE FROM THE PRESSURE OF UNCONSTITUTIONAL INFERENCES. 
REVERSED AND REMANDED. 

FN1  EXCERPTS OF THE PROSECUTOR'S ARGUMENT ARE REPRODUCED IN THE
APPENDIX TO THIS OPINION. 

FN2  THE TRIAL JUDGE CHARGED THE JURY: 

"IT IS A CONSTITUTIONAL RIGHT OF A DEFENDANT IN A CRIMINAL TRIAL THAT
HE MAY NOT BE COMPELLED TO TESTIFY.  THUS, WHETHER OR NOT HE DOES
TESTIFY RESTS ENTIRELY ON HIS OWN DECISION.  AS TO ANY EVIDENCE OR
FACTS AGAINST HIM WHICH THE DEFENDANT CAN REASONABLY BE EXPECTED TO
DENY OR EXPLAIN BECAUSE OF FACTS WITHIN HIS KNOWLEDGE, IF HE DOES NOT
TESTIFY OR IF, THOUGH HE DOES TESTIFY, HE FAILS TO DENY OR EXPLAIN SUCH
EVIDENCE, THE JURY MAY TAKE THAT FAILURE INTO CONSIDERATION AS TENDING
TO INDICATE THE TRUTH OF SUCH EVIDENCE AND AS INDICATING THAT AMONG THE
INFERENCES THAT MAY BE REASONABLY DRAWN THEREFROM THOSE UNFAVORABLE TO
THE DEFENDANT ARE THE MORE PROBABLE  ...  ." 

FN3  CAL. CONST., ART. VI, SEC. 4 1/2: 

"NO JUDGMENT SHALL BE SET ASIDE, OR NEW TRIAL GRANTED, IN ANY CASE,
ON THE GROUND OF MISDIRECTION OF THE JURY, OR OF THE IMPROPER ADMISSION
OR REJECTION OF EVIDENCE, OR FOR ANY ERROR AS TO ANY MATTER OF
PLEADING, OR FOR ANY ERROR AS TO ANY MATTER OF PROCEDURE, UNLESS, AFTER
AN EXAMINATION OF THE ENTIRE CAUSE, INCLUDING THE EVIDENCE, THE COURT
SHALL BE OF THE OPINION THAT THE ERROR COMPLAINED OF HAS RESULTED IN A
MISCARRIAGE OF JUSTICE."    FN4  "IF THEY (THE FIRST TEN AMENDMENTS)
ARE INCORPORATED INTO THE CONSTITUTION, INDEPENDENT TRIBUNALS OF
JUSTICE WILL CONSIDER THEMSELVES IN A PECULIAR MANNER THE GUARDIANS OF
THOSE RIGHTS; THEY WILL BE AN IMPENETRABLE BULWARK AGAINST EVERY
ASSUMPTION OF POWER IN THE LEGISLATIVE OR EXECUTIVE; THEY WILL BE
NATURALLY LED TO RESIST EVERY ENCROACHMENT UPON RIGHTS EXPRESSLY
STIPULATED FOR IN THE CONSTITUTION BY THE DECLARATION OF RIGHTS."  1
ANNALS OF CONG. 439 (1789). 

FN5  28 U.S.C. SEC. 2111 PROVIDES: 

"ON THE HEARING OF ANY APPEAL OR WRIT OF CERTIORARI IN ANY CASE, THE
COURT SHALL GIVE JUDGMENT AFTER AN EXAMINATION OF THE RECORD WITHOUT
REGARD TO ERRORS OR DEFECTS WHICH DO NOT AFFECT THE SUBSTANTIAL RIGHTS
OF THE PARTIES."  FED.  RULE CRIM. PROC. 52(A) PROVIDES: 

"ANY ERROR, DEFECT, IRREGULARITY OR VARIANCE WHICH DOES NOT AFFECT
SUBSTANTIAL RIGHTS SHALL BE DISREGARDED." 

SEE ALSO FED. RULE CIV. PROC. 61. 

FN6  THE CALIFORNIA STATUTORY RULE, LIKE THE FEDERAL RULE, PROVIDES
THAT "AFTER HEARING THE APPEAL, THE COURT MUST GIVE JUDGMENT WITHOUT
REGARD TO TECHNICAL ERRORS OR DEFECTS, OR TO EXCEPTIONS, WHICH DO NOT
AFFECT THE SUBSTANTIAL RIGHTS OF THE PARTIES."  CAL. PEN.  CODE SEC.
1258. 

FN7  THE CALIFORNIA SUPREME COURT IN THIS CASE DID NOT FIND A
"MISCARRIAGE OF JUSTICE" AS TO PETITIONER TEALE, BECAUSE IT FOUND FROM
"OTHER SUBSTANTIAL EVIDENCE, THAT THE PROOF OF HIS GUILT MUST BE DEEMED
OVERWHELMING."  63 CAL. 2D, AT 197, 404 P.2D, AT 220. 

FN8  SEE, E.G., PAYNE V. ARKANSAS, 356 U.S. 560 (COERCED CONFESSION);
GIDEON V. WAINWRIGHT, 372 U.S. 335 (RIGHT TO COUNSEL); TUMEY V. OHIO,
273 U.S. 510 (IMPARTIAL JUDGE). 

FN9  SEE GENERALLY 1 WIGMORE, EVIDENCE SEC. 21 (3D ED. 1940). 

FN10  CF. WOODBY V. IMMIGRATION SERVICE, 385 U.S. 276.  APPENDIX TO
OPINION OF THE COURT. 

ARGUMENT AND COMMENTS BY THE PROSECUTOR ON THE FAILURE OF THE
DEFENDANTS TO TAKE THE WITNESS STAND. 

"NOW, LADIES AND GENTLEMEN, I DON'T KNOW WHICH ONE OF THESE WEAPONS
WAS PURCHASED FIRST, I DON'T KNOW THAT IT PARTICULARLY MAKES ANY
DIFFERENCE, BUT AS YOU KNOW, WE HAVE HAD NO TESTIMONY AT ALL IN THAT
REGARD, IN FACT, I MIGHT ADD THAT THE ONLY PERSON OR PERSONS THAT COULD
GIVE TESTIMONY IN THAT REGARD WOULD BE, OF COURSE, THE DEFENDANTS
THEMSELVES. 

     *         *         *         *         * 

"NOW, THIS, THERE'S NO QUESTION ABOUT WHAT THIS REPRESENTS, OR FOR
THE RECORD HERE, NO QUESTION IN YOUR MINDS, THIS IS NOT THE WEAPON THAT
RUTH ELIZABETH CHAPMAN PURCHASED IN RENO, NEVADA, ON OCTOBER THE 12TH,
1962.  I DON'T KNOW WHERE THAT WEAPON IS, LADIES AND GENTLEMEN, AND YOU
DON'T KNOW WHERE IT IS, YOU'VE HEARD NO TESTIMONY FROM THE STAND AT
ALL, AND ONCE AGAIN, THE ONLY PERSON OR PERSONS THAT COULD TELL US
ABOUT WHERE THE ORIGINAL .22 CALIBER VESTPOCKET IS TODAY WOULD BE ONE
OR THE OTHER OF THE DEFENDANTS OR BOTH. 

     *         *         *     *         * 

"THIS WOULD INDICATE THAT THERE WAS NO SMALL STRUGGLE - IT WOULD
INDICATE THAT THE BODY, ALMOST LIFELESS, WAS DRAGGED OR LEFT IN SOME
FASHION WHICH WOULD CAUSE A SHIRT OR AN ARTICLE OF CLOTHING TO TEAR,
ONE OR THE OTHER.  ONCE AGAIN, LADIES AND GENTLEMEN, I DON'T KNOW, I
WASN'T OUT THERE, YOU WERE NOT OUT THERE.  YOU HEARD NO TESTIMONY ON
THE STAND.  THE ONLY INDIVIDUALS THAT COULD GIVE YOU THAT INFORMATION
WOULD BE THE DEFENDANTS, EITHER ONE OR BOTH OF THEM, THOMAS LEROY TEALE
AND RUTH ELIZABETH CHAPMAN.  AND OF COURSE YOU KNOW THAT YOU HAVE NOT
HEARD FROM THEM. 

"NOW, I WILL COMMENT THROUGHOUT MY ENTIRE OPENING ARGUMENT TO YOU IN
REFERENCE TO THE FACT THAT NEITHER ONE OF THESE DEFENDANTS HAS SEEN FIT
TO GO UP, RAISE THEIR RIGHT HAND, TAKE THAT WITNESS STAND, TELL YOU
LADIES AND GENTLEMEN OF THE JURY EXACTLY WHAT DID OCCUR, EXPLAIN TO YOU
ANY FACTS OR DETAILS WITHIN THEIR KNOWLEDGE SO THAT YOU WOULD KNOW. 
YOU WOULD NOT HAVE TO - BY HIS HONOR'S INSTRUCTIONS YOU CAN DRAW AN
ADVERSE INFERENCE TO ANY FACT WITHIN THEIR KNOWLEDGE THAT THEY COULDN'T
TESTIFY TO, AND THEY HAVE NOT SUBJECTED THEMSELVES, EITHER ONE OR BOTH,
TO CROSS-EXAMINATION.  NOW, THAT IS - SO THERE IS NO QUESTION IN YOUR
MIND, ONCE AGAIN WITH REFERENCE TO A DEFENDANT TAKING THE STAND, NONE -
YOU ARE - YOU OR I OR ANYONE ELSE IS NOT REQUIRED UNDER OUR LEGAL
SYSTEM IN THESE UNITED STATES AND UNDER THE CONSTITUTION, YOU CAN NOT
BE MADE TO TESTIFY AGAINST YOURSELF OR FOR YOURSELF, AS FAR AS THAT
GOES. 

"SO, IT IS A CONSTITUTIONAL RIGHT, AND BOTH OF THESE DEFENDANTS HAVE
SEEN FIT TO AVAIL THEMSELVES OF THAT CONSTITUTIONAL RIGHT, BUT I SAY TO
YOU LADIES AND GENTLEMEN, THERE ARE MANY THINGS IN THIS CASE, AND I
WILL TRY TO POINT THEM OUT TO YOU, AT LEAST SOME, PROBABLY NOT ALL,
THAT THESE DEFENDANTS ARE IN A POSITION TO TAKE THAT STAND AND TO
TESTIFY UNDER OATH AND GIVE YOU FACTS CONCERNING.  THEY HAVE NOT SEEN
FIT TO AVAIL THEMSELVES OF THAT OPPORTUNITY. 

     *         *         *         *      * 

"NOW WHETHER OR NOT MR. TEALE HAD ANY OTHER MONEY AT THE TIME OR WAS
IN THE HABIT OF CONCEALING HIS MONEY IN DIFFERENT DEPARTMENTS, I DON'T
KNOW, AND LADIES AND GENTLEMEN, YOU DON'T KNOW, BECAUSE YOU HAVE NOT
HAD ANY TESTIMONY FROM THAT WITNESS STAND, AND THE ONLY PERSON THAT
COULD CLEAR THIS UP FOR US LADIES AND GENTLEMEN IS THE DEFENDANT THOMAS
LEROY TEALE.  LADIES AND GENTLEMEN, HE HAS NOT SEEN FIT TO TELL YOU
ABOUT THAT.  BUT CERTAINLY WE KNOW THAT BOGUS CHECKS ARE BEING WRITTEN,
AND AS I RECALL WE KNOW THAT - I DON'T - WE MAY INFER, IF YOU WISH TO
BELIEVE THERE IS AN INFERENCE WHICH MR. TEALE COULD HAVE CLEARED UP,
THAT THAT WAS ALL THE MONEY THAT HE HAD, AND HE DIDN'T CLEAR IT UP, SO
YOU MAY DRAW AN ADVERSE INFERENCE FROM THAT, THAT THAT WAS ALL THE
MONEY HE HAD, OR IN FACT THAT HE - AT THAT TIME HE WAS IN DESPERATE
NEED OF FUNDS, AND YOU KNOW THAT THROUGH SOME KIND OF A DISCUSSION
BETWEEN THESE TWO DEFENDANTS IN REGARD TO MR. TEALE SHOOTING DICE, THAT
THIS WAS ALL HE HAD. 

     *         *         *         *         * 

"NOW, LADIES AND GENTLEMEN, IN REFERENCE TO THE WEAPONS BEING
PURCHASED IN RENO, NEVADA ON OCTOBER 12TH, YOU HAVE HEARD, LADIES AND
GENTLEMEN, NO TESTIMONY, AND YOU WILL RECALL CLEARLY, YOU ARE GOING TO
HAVE SOME DIFFICULTY, YOU REALLY ARE IN REFERENCE TO WHAT IS AND WHAT
ISN'T EVIDENCE IN THIS CASE, AND BELIEVE ME I HAVE A FEW COMMENTS TO
SAY ON THAT A LITTLE LATER ON, BUT IF YOU WILL RECALL AS FAR AS
EVIDENCE IS CONCERNED OF THE TRUTH OF ANYTHING AT ALL, YOU DON'T HAVE
ANY EVIDENCE ON WHY THESE - WHY THESE PISTOLS WERE PURCHASED.  WHY DID
RUTH ELIZABETH CHAPMAN BUY TWO WEAPONS?  WELL, YOU DO RECALL THAT SHE
TOLD ON ONE OCCASION THAT SHE HAD HAD A PISTOL STOLEN FROM HER VEHICLE,
HER AUTOMOBILE, WHEN SHE WAS TAKING A LITTLE TRIP ACROSS COUNTRY, YOU
REMEMBER THAT TESTIMONY, AND YOU CAN RELY ON THE TESTIMONY THAT YOU
ACTUALLY HEAR, LADIES AND GENTLEMEN, FROM THE STAND.  SHE TOLD THAT,
AND OF COURSE YOU CAN ONLY RELY THAT SHE TOLD THE GENTLEMAN THAT, THAT
SHE HAD HAD ANOTHER ONE STOLEN, AND SO THAT SHE NEEDED ONE TO REPLACE
IT.  BUT WHY TWO, LADIES AND GENTLEMEN?  YOU DON'T NEED TWO.  IF SHE IS
GOING TO BE ATTACKED SHE WASN'T GOING TO USE ONE IN EACH HAND I ASSUME
TO DEFEND HERSELF, AND THERE IS ANOTHER AREA, LADIES AND GENTLEMEN,
BESIDES THIS THAT I MENTIONED TO YOU BEFORE, THAT SINCE YOU HAVE NO
TESTIMONY FROM THE STAND, YOU MUST SURMISE FROM ALL FACTS AND
CIRCUMSTANCES AS TO THE EXACT REASON WHY THEY WERE PURCHASED, BECAUSE
THE ONLY ONE IN THIS ROOM THAT COULD TELL YOU WHY THESE GUNS WERE
PURCHASED IS EITHER ONE OR BOTH OF THE DEFENDANTS.  CERTAINLY THE
DEFENDANT RUTH ELIZABETH CHAPMAN COULD TELL YOU, SHE COULD TELL YOU
UNDER OATH, SHE COULD SUBJECT HERSELF TO CROSS-EXAMINATION, AND SHE
COULD TELL YOU THEN AND IT WOULD BE EVIDENCE BEFORE YOU.  ONCE AGAIN
SHE HAS NOT CHOSEN TO DO THIS.  SO ANY INFERENCE YOU MAY DRAW THEREFROM
WILL BE AN ADVERSE INFERENCE UNDER THE CIRCUMSTANCES, AND UNDER THE
INSTRUCTIONS OF THE COURT  ...  . 

"SO, WE KNOW, LADIES AND GENTLEMEN, THAT THEY HAD THE MOTIVE, WE KNOW
THAT THEY HAD THE MEANS, WE KNOW THAT THEY HAD THE OPPORTUNITY.  WE
ALSO KNOW THAT THEY WERE AT THAT SCENE, LADIES AND GENTLEMEN, THEY WERE
WITH THAT MAN JUST A MATTER OF MINUTES BEFORE HE WAS SHOT IN THE HEAD
THREE TIMES WITH A GUN SIMILAR TO PEOPLE'S EXHIBIT NO. 12.  NOW, IF
THEY WEREN'T THERE, AND I THINK THE EVIDENCE CLEARLY SHOWS THEY WERE,
SCIENTIFIC EVIDENCE, THAT WE'LL TALK ABOUT A LITTLE LATER.  ONCE AGAIN,
WHY DON'T THEY COME UP AND RAISE THEIR RIGHT HAND AND TELL YOU ABOUT
IT? 

"TO ME THEY ARE CHARGED WITH SERIOUS CRIMES, LADIES AND GENTLEMEN. 
THEY CAN COME UP AND TESTIFY AND THEN IT WILL BE EVIDENCE FOR YOU TO
CONSIDER IN THIS CASE.  IF THEY HAD JUST COME UP AND TOLD YOU ABOUT
THIS, BECAUSE THEY WERE THERE.  IF THEY LEFT THE SPOT CLUB AND JUST
WENT ON THEIR WAY, WELL, OF COURSE THEY DIDN'T, THE EVIDENCE CLEARLY
SHOWS THEY DIDN'T, BUT YOU MAY DRAW THE ADVERSE INFERENCE FROM THEIR
REFUSAL TO COME BEFORE YOU AND RAISE THAT RIGHT HAND AND INCIDENTALLY,
OF COURSE, SUBJECT THEMSELVES TO CROSS-EXAMINATION. 

     *         *         *         *         * 

"I THINK IT IS NOT AN UNREASONABLE INFERENCE TO INFER AT THIS TIME IF
THE DEFENDANTS WERE DRINKING BEER EARLIER IN THE EVENING IN CROCE'S,
IT'S NOT UNREASONABLE TO INFER THEY CONTINUED DRINKING THE SAME THING,
THEREFORE THE TWO GLASSES REMAINING THAT HAD BEEN WASHED, BUT NOT PUT
UP WERE THE DEFENDANTS'.  I DON'T KNOW, IT IS AN INFERENCE, I WASN'T
THERE, WE HAVE HAD NO TESTIMONY WHATSOEVER AS TO WHAT THEY WERE
DRINKING AT THE SPOT CLUB, ONCE AGAIN, NEITHER ONE OF THE DEFENDANTS
HAVE SEEN THEIR WAY CLEAR TO COME UP AND TELL YOU WHAT THEY WERE
DRINKING IF IT WAS BEER. 

     *         *         *         *         * 

"SO YOU CAN SEE THAT WHICHEVER ONE OF THESE DEFENDANTS SHOT HIM, AND
ONCE AGAIN, LADIES AND GENTLEMEN, HERE IS AN AREA THAT I DON'T KNOW WHO
SHOT HIM, AND YOU DON'T KNOW WHO SHOT HIM, BECAUSE WE HAVE HAD NO
TESTIMONY FROM THAT WITNESS STAND TO TELL YOU WHO SHOT HIM, AND THE
ONLY TWO PERSONS IN THIS COURTROOM THAT COULD TELL YOU WHICH ONE OF
THEM IT WAS THAT SHOT HIM ARE THE TWO DEFENDANTS; BUT ONCE AGAIN, THEY
HAVE BOTH DECIDED THAT THEY WILL NOT GET UP AND RAISE THEIR RIGHT HAND
AND TESTIFY IN THIS REGARD AND SUBJECT THEMSELVES TO CROSS-EXAMINATION,
SO ALL WE KNOW IS THAT ONE OF THEM SHOT HIM. 

    *         *         *         *         * 

"WE DON'T KNOW THE TIME HERE, IT DOESN'T SAY.  WE DON'T HAVE ANY
TESTIMONY, LADIES AND GENTLEMEN, IN THIS REGARD, AND I MIGHT SAY ONCE
AGAIN IN REFERENCE TO THIS LAST, THE USE OF THE NAME, T.L. ROSENTHAL,
MR. AND MRS., WE DON'T KNOW WHY, LADIES AND GENTLEMEN, THAT NAME WAS
USED.  WE DON'T KNOW WHY, LADIES AND GENTLEMEN, THAT UZV 155 - WAS 156
ORIGINALLY ON HERE.  YOU DON'T KNOW THAT, AND I DON'T, BECAUSE WE
HAVEN'T HAD THE TESTIMONY FROM THE WITNESS STAND ON IT.  NOW WE KNOW IT
IS IN THE HANDWRITING OF RUTH ELIZABETH CHAPMAN, AND THERE IS NO
QUESTION ABOUT THAT.  SHE WROTE IT.  IT COULD BE EVIDENCE, LADIES AND
GENTLEMEN, FOR YOU.  IT COULD BE EVIDENCE AS TO WHY SHE WROTE THAT
NAME, AND WHY THAT FIVE WAS CHANGED TO A SIX.  WE COULD HAVE IT.  BUT
WE DON'T, BECAUSE EITHER ONE OR BOTH OF THE DEFENDANTS, NEITHER ONE,
HAVE EVEN SEEN FIT TO TAKE THE STAND AND TO TESTIFY IN THAT REGARD. 
THEN THIS WOULD BE EVIDENCE THAT YOU CAN CONSIDER.  BUT ALSO LADIES AND
GENTLEMEN, SUBJECT TO TAKING THE OATH AND SUBJECT TO CROSS
EXAMINATION. 

     *         *         *         *        * 

"WE SEE IT HERE IN MOUNTAIN VIEW, THE MOUNTAIN VIEW MOTEL, THE NAME
OF TEALE, BUT WE DON'T HAVE THE TESTIMONY OF THE DEFENDANTS AND LADIES
AND GENTLEMEN THEY ARE THE ONLY ONES HERE IN THIS CASE THAT COULD GET
UP THERE AND TELL YOU WHY THEY USED A PHONY NAME TWO HOURS AFTER THE
CRIME AND WHY THEY DIDN'T PUT THE CORRECT LICENSE DOWN AND WHATEVER
INFERENCE YOU DRAW YOU ARE PERMITTED TO DRAW SINCE THEY DO NOT CHOOSE
TO TELL YOU AN ADVERSE INTEREST, AND I WOULD SAY, LADIES AND GENTLEMEN,
THAT IT IS AN ADVERSE INTEREST TO THE DEFENDANTS.  IT SHOWS A
CONSCIOUSNESS OF GUILT. 

     *         *         *         *         * 

"NOW, LADIES AND GENTLEMEN, WHAT IS THIS - FIRST OF ALL, 'I THOUGHT
I'D BETTER LET YOU KNOW THAT TOM ARRIVED HERE TODAY AND WE'RE GOING
SOUTH TOMORROW'?  NOW, WHAT DOES THAT MEAN?  WELL, I THINK WITHOUT
SAYING A GREAT DEAL MORE ABOUT IT THAT EACH ONE OF YOU CAN CERTAINLY
INFER AS TO WHAT IT VERY READILY COULD MEAN, ESPECIALLY IF ONE HAS IN
FACT COMMITTED A ROBBERY AND KIDNAPPED SOMEONE FROM THE PREMISES AND
THAT INDIVIDUAL HAS ENDED UP DEAD, SHOT THREE TIMES IN THE HEAD.  AND
FURTHER, LADIES AND GENTLEMEN, THE ONLY OTHER THING I CAN SAY ABOUT IT
IS THIS, WHO CAN REALLY TELL YOU AND WHO COULD HAVE TOLD YOU FROM
EVIDENCE, FROM THE WITNESS STAND, WHAT THAT LETTER MEANT?  WELL, THE
ONLY ONE IS RUTH ELIZABETH CHAPMAN, LADIES AND GENTLEMEN.  IF IT DIDN'T
MEAN WHAT YOU CAN REASONABLY INFER THAT IT MEANS, THEN I SAY, LADIES
AND GENTLEMEN, SHE COULD HAVE COME UP HERE AND TESTIFIED, GOTTEN ON THE
WITNESS CHAIR.  WE HAVE HAD MANY WITNESSES IN THIS CASE, NO ONE I WOULD
ASSUME MORE INTERESTED THAN RUTH ELIZABETH CHAPMAN, OR THE CO
DEFENDANT, NEITHER ONE TOOK THE STAND.  SHE IN NO WAY, NOR HAS THERE
BEEN ANY WAY, LADIES AND GENTLEMEN, ANY KIND OF EVIDENCE THAT HAS
ACTUALLY BEEN ADMITTED FOR THE TRUTH OF THE EVIDENCE, IN NO WAY IS
THERE ANY EVIDENCE AS TO WHY SHE WROTE THAT LETTER, AND WHAT SHE MEANT
BY 'TOM IS ARRIVING TODAY AND WE'RE GOING SOUTH.'  ONCE AGAIN, SHE DID
NOT CHOOSE TO TELL YOU.  SO, WE MAY ONLY INFER, AND THIS WILL BE, OF
COURSE, YOU WILL HAVE TO IN YOUR FINAL ANALYSIS DRAW ANY INFERENCES
FROM THAT THAT YOU FEEL ARE APPROPRIATE AND ARE PROPER. 

     *         *         *         *         * 

"HE WAS A FUGITIVE FROM JUSTICE, AND HE KNEW HE WAS A FUGITIVE FROM
JUSTICE, AND HE NEVER - LET'S FACE IT, THERE WERE FOUR F.B.I. AGENTS
AND THESE FELLOWS ARE PROFESSIONAL AND THEY KNOW WHAT THEY ARE DOING
AND ONE OF THEM HAD A GUN OUT AND HE NEVER HAD AN OPPORTUNITY TO USE
IT, AND NONE OF US HERE WILL EVER KNOW FROM ALL THE TESTIMONY, FROM THE
ACTUAL TESTIMONY ON THE STAND WHY HE HAD THE WEAPON WITH HIM FULLY
LOADED, BECAUSE MR. TEALE HAS NEVER TAKEN THE STAND IN THIS CASE AND
TESTIFIED FOR YOU.  THESE THINGS ARE THINGS ONLY WITHIN HIS KNOWLEDGE,
LADIES AND GENTLEMEN.  IF THERE IS ANY FACT IN THIS CASE OF ANY
RELEVANCY OF ANY IMPORTANCE IT IS WITHIN THE KNOWLEDGE OF A DEFENDANT,
AND THEY CHOSE NOT TO TAKE THE STAND AND TELL YOU ABOUT IT, WHERE
INCIDENTALLY THEY ARE UNDER OATH AND CAN BE CROSS-EXAMINED.  YOU MAY
DRAW AN ADVERSE INFERENCE FROM THE FACT THAT THEY DO NOT TAKE IT.  I
THINK THE INFERENCE IS VERY CLEAR, TOO, WHY THEY HAD THIS WEAPON HERE
AND WHY HE NEVER - WHY IT WAS FULLY LOADED.  REMEMBER THERE WAS NEVER
AN OPPORTUNITY TO USE IT.  THE WEAPON WAS PURCHASED BY RUTH ELIZABETH
CHAPMAN.  NOW WHEN HE IS APPREHENDED AND FLEEING FROM THE STATE HE HAD
IT WITH HIM AND IT WAS FULLY LOADED.  ONCE AGAIN, I DON'T KNOW WHERE
THE ORIGINAL IS HERE, AND YOU KNOW THE ONLY TWO THAT CAN TELL US WHERE
THAT IS. 

"NOW, YOU RECALL ALSO THAT WHEN MR. BASHAM TOOK HIM BACK IN, WAS
FINGERPRINTING HIM, ETC., HE TOLD HIM HE WAS WANTED IN CALIFORNIA AND
NO ONE MENTIONED ANYTHING ABOUT LODI, AND HE SAID THAT HE WOULD WAIVE
EXTRADITION, AND HE ALSO DID SAY HE SAID, 'THEY WILL HAVE A HARD TIME
PROVING I WAS THERE.'  AND TEALE HIMSELF DID MENTION LODI.  WELL, I
DON'T KNOW WHAT HE MEANT BY THAT STATEMENT.  I CERTAINLY CAN DRAW MY
OWN CONCLUSION, AND YOU SURE WILL DRAW YOURS AS THE TRIERS OF THE FACTS
AND THE JUDGES OF THE FACTS, LADIES AND GENTLEMEN, BUT ONCE AGAIN MR.
TEALE DID NOT TAKE THE STAND AND TESTIFY UNDER OATH IN THIS CASE, AND
MR. TEALE HAS NOT DESIRED TO TAKE THE STAND AND EXPLAIN WHAT HE MEANT
BY IT.  HE DIDN'T HAVE TO, OF COURSE, BUT ONCE AGAIN YOU CAN DRAW
WHATEVER INFERENCES YOU MAY FEEL, AND THE LAW IS CLEAR THAT YOU MAY
DRAW AN ADVERSE - WHERE A DEFENDANT DOES NOT EXPLAIN AND HE DOES NOT
CHOOSE TO TAKE THE STAND AND EXPLAIN IT TO YOU YOU CAN DRAW AN ADVERSE
INFERENCE. 

     *         *        *         *         * 

"PHOTOGRAPHS.  YOU'VE SEEN THEM, LADIES AND GENTLEMEN, BUT AS YOU
RECALL THE DOCTOR NOW IS POINTING, AND THIS IS THE PICTURE OF THE
DECEASED, THE BACK OF HIS HEAD, AS TO WHERE HE WAS SHOT IN THE BACK OF
THE HEAD, YOU RECALL THE OTHER ONE AS TO WHERE HE WAS SHOT IN THE SIDE
OF THE HEAD, RIGHT HERE ON THE LEFT IN THE GENERAL AREA OF WHERE THE
GLASSES WOULD BE, I THINK IT'S A MOST REASONABLE INFERENCE, LADIES AND
GENTLEMEN.  NOW, ONCE AGAIN WE HAVE HAD NO TESTIMONY EXCEPT WHAT WOULD
SEEM CLEARLY LOGICAL FROM THE EXPERTS, THE WAY THE BODY WAS FOUND,
WHERE HE'D BEEN SHOT, WHAT HE'D BEEN SHOT WITH, AND THE POSITION OF THE
GLASSES IN RELATION TO THE BODY AT THE DEATH SCENE, WE HAD NO OTHER
TESTIMONY.  CERTAINLY NONE FROM THE DEFENDANTS IN THIS CASE. 

     *         *         *         *         * 

"  ...  AGENT GILMORE HAS DRAWN AND MADE SOME NOTATIONS IN REFERENCE
TO WHERE THAT BLOOD WAS LOCATED, BLOOD FOUND ON THESE SHOES.  NOW, ALL
WE KNOW, LADIES AND GENTLEMEN, AS FAR AS EVIDENCE IN THIS CASE IS
CONCERNED, IS THAT THESE SHOES BELONGED TO RUTH ELIZABETH CHAPMAN AND
THEY WERE IN HER POSSESSION WHEN SHE WAS APPREHENDED IN ST. JOSEPH,
MISSOURI, AND WHY DO I SAY THAT'S ALL YOU KNOW?  THAT'S ALL YOU MAY
TAKE INTO CONSIDERATION, LADIES AND GENTLEMEN, BECAUSE WE HAVE NO OTHER
TESTIMONY ON THIS WITNESS STAND IN RELATION TO ANY OF THESE ARTICLES OF
CLOTHING THAT ARE ACTUALLY ADMITTED INTO EVIDENCE. 

     *         *         *         *         * 

"YOU HAVE TWO BOX LIDS, TWO OF THEM, AND YOU'VE HEARD THE QUESTIONS
CONCERNING THEM, THEY WOULD INDICATE THAT THEY WERE SENT TO A MRS.
HOWARD SMITH AT 2206 CASTLE AVENUE, ST. JOSEPH, MISSOURI, AND I BELIEVE
IT WAS ON THE 11TH OF OCTOBER, SAYS FROM THOMAS TEALE, 1105 DEL NORTE,
EUREKA, CALIFORNIA, THEY BOTH SAY ESSENTIALLY THE SAME THING, 10-11,
THERE'S NO YEAR, BUT I THINK WE CAN SURELY INFER IT WAS IN 1962, AND
APPARENTLY FROM RENO. 

"NOW, LADIES AND GENTLEMEN, THERE'S BEEN A LOT OF TALK, SUGGESTION,
AND WHATEVER YOU WANT TO CALL IT, I'LL CALL IT A SMOKE SCREEN, IN
REFERENCE TO THESE TWO LIDS THAT CAME OFF, AND WE'LL ASSUME THERE WAS A
BOX UNDERNEATH THEM, I DON'T THINK THERE'S ANY QUESTION ABOUT THAT. 
WHERE HAVE YOU EVER HEARD FROM THAT WITNESS STAND, LADIES AND
GENTLEMEN, WHAT WAS EVER IN THOSE BOXES?  NOW, YOU'VE HEARD SOME SELF
SERVING DECLARATIONS THAT ARE NOT ADMITTED INTO EVIDENCE BECAUSE THEY
COME THROUGH SOMEONE ELSE WHO IN SOME FASHION GETS TESTIMONY BEFORE
YOU, BUT NO CROSS-EXAMINATION OF THE ORIGINAL PARTY WHO IS GIVING THAT
KIND OF TESTIMONY, AND YOU CAN'T CONSIDER IT. 

     *         *         *       *         * 

"THANK YOU, YOUR HONOR.  COUNSEL HAS INTERJECTED HIMSELF INTO THIS,
AND HE'LL HAVE EVERY OPPORTUNITY TO MAKE HIS OWN COMMENTS, AND I'M SURE
HE'LL MOST ADEQUATELY EXPRESS HIMSELF WHEN THE TIME COMES.  I'M TELLING
YOU, LADIES AND GENTLEMEN, THAT THE ONLY EVIDENCE THAT YOU HAVE IS THAT
YOU HAVE TWO BOX TOPS.  NOW, HE'S JUST SUGGESTED TO YOU, SO I'LL ANSWER
THIS AHEAD OF TIME, BUT THE EVIDENCE IS CLEAR THAT MR. SPERLING PACKED
THESE BOXES, BUT YOU WILL RECALL MR. SPERLING WAS NOT AT THE ORIGINAL
SCENE WHEN THEY WERE TAKEN.  MAYBE IT ISN'T UNUSUAL TO INFER THERE MAY
HAVE BEEN CLOTHES, BUT WHAT I'M GETTING AT IS THIS IS WHAT CLOTHING? 
YOU DON'T EVEN KNOW THERE WAS CLOTHING IN THEM WHEN THEY WERE SHIPPED. 
IT COULD HAVE BEEN OTHER HOUSEHOLD ARTICLES.  AND EVEN IF WE ASSUME IT
WAS CLOTHING, AND THAT'S NOT UNREASONABLE BECAUSE BASICALLY THESE ARE
THE ITEMS WE FOUND AND BROUGHT BACK WITH US TO LODI, WE DON'T KNOW
WHICH CLOTHING SHE SHIPPED AT THIS TIME.  COULDN'T THIS BE CLEARED UP
FOR US, THOUGH?  IT COULD BE CLEARED UP SO EASILY.  RUTH ELIZABETH
CHAPMAN IS SITTING RIGHT OVER HERE, SHE IS ONE OF THE DEFENDANTS IN
THIS CASE AND SHE IS THE ONE CERTAINLY IF ANYONE, IF ANYONE IN THIS
ROOM, OR IN THIS STATE KNOWS WHAT WAS IN THOSE BOXES SHE IS THE ONE,
BUT ONCE AGAIN SHE DID NOT TAKE THE STAND, RAISE HER RIGHT HAND, AND
TELL YOU ABOUT THAT.  SHE DIDN'T TAKE THE STAND AT ALL, LADIES AND
GENTLEMEN, SHE COULD HAVE COME UP AND TOLD US EXACTLY WHAT ARTICLES
WERE SENT, SO YOU MAY DRAW ANY INFERENCES FROM THAT THAT YOU WISH TO,
AS LONG AS THEY ARE REASONABLE. 

     *         *         *         *  * 

"NOW, ANYTHING THAT - IS CLEARLY, AND I'M SURE YOU KNOW BY NOW AND I
DON'T HAVE TO REPEAT IT TOO OFTEN, ANYTHING IN THIS CASE THAT MR. TEALE
COULD GET UP HERE NOW, HE DON'T HAVE TO GET UP HERE, BUT ALL OF THE
THINGS THAT HAVE BEEN SAID IN THIS TRIAL AND ALL OF THE PHYSICAL
EVIDENCE AND THE TESTIMONY, HE'S RIGHT HERE IN COURT AND COULD HE NOT
GET UP AND IF THERE IS ANYTHING TO BE SAID HE HAS THE OPPORTUNITY TO
SAY IT.  OTHERWISE, YOU MAY DRAW THE ADVERSE INFERENCE FROM THE FACT
THAT HE DOESN'T GET UP THERE AND TELL YOU ABOUT IT, AND THAT, LADIES
AND GENTLEMEN, IS HIS DEFENSE.  MR. FRANSEN SAID IN THE BEGINNING THAT
WHAT HAPPENED IN THIS CASE IS NOT AS THE PROSECUTION DESCRIBED IT.
THAT THE FACTS WILL SHOW AN ENTIRELY DIFFERENT VERSION.  WELL, I
HAVEN'T HEARD ANY FACTS, LADIES AND GENTLEMEN, THAT SHOW AN ENTIRELY
DIFFERENT VERSION. 

     *         *         *         *         * 

"WE WENT THROUGH A BUSINESS WITH A - DRESS.  WE HELD IT UP, AND THEN
WE POINTED OUT THE ONE THAT SHE'S WEARING NOW, AND FRANKLY, LADIES AND
GENTLEMEN, THE ONLY ONE IN THE COURT ROOM THAT CAN TELL YOU WHETHER OR
NOT IT IS THE SAME DRESS IS RUTH ELIZABETH CHAPMAN, BECAUSE YOU KNOW
FROM THE EVIDENCE NO ONE HAS EVER HAD AN OPPORTUNITY TO EXAMINE THAT
DRESS TO SEE WHETHER IT HAS BEEN DRY CLEANED, WHETHER OR NOT IT WAS
PURCHASED - WHEN IT WAS PURCHASED OR THE LABELS ON IT OR ANYTHING
ELSE.  ALL THAT HAS BEEN DONE IN THIS THING IS TO WEAR A BLUE KNIT
DRESS, LADIES AND GENTLEMEN, WHICH IS SIMILAR TO THE ONE THAT - SHE IN
FACT APPARENTLY WORE ON THAT NIGHT. 

"SO, I SUPPOSE THAT JUST THROUGH THE WEARING OF IT, HAVING IT IN
COURT, IT IS HOPED THAT YOU WILL DRAW SOMETHING FROM IT, WHICH I HAVE
HEARD NO TESTIMONY ON THE STAND, EXCEPT THAT IT LOOKS LIKE OR IS
SIMILAR TO IT  ...  . 

"BUT WHAT SHE TOLD THAT DOCTOR IS NOT EVIDENCE IN THIS CASE, AND YET
YOU KNOW THAT REPEATEDLY AND OVER AND OVER AND OVER AGAIN MR. JOHNSON
IN EVERY WAY THAT HE COULD, HE WOULD GET THE STORY AGAIN BEFORE YOU. 
NOW, WHY?  YOU KNOW WHY.  HE DID IT BECAUSE HE HOPES THAT YOU WOULDN'T
FORGET IT, ALTHOUGH HE COULD PUT IT AND MAKE IT EVIDENCE IN THIS CASE,
WHICH IT IS NOT, AND IF YOU PUT RUTH ELIZABETH CHAPMAN UP ON THAT STAND
TO TESTIFY, SO IT IS ONE WAY OF DOING, LADIES AND GENTLEMEN, IF YOU ARE
GOING TO BE TAKEN IN BY IT, INDIRECTLY WHAT YOU CAN'T DO DIRECTLY,
BECAUSE THERE IS NO OTHER WAY THAT HE CAN GET THAT THING BEFORE YOU
WITHOUT PUTTING HER UP ON THAT STAND. 

     *         *         *         *         * 

"BUT SHE GAVE A STORY ON THE NIGHT OF THE 17TH AND EARLY HOURS OF THE
18TH.  SHE WAS IN SAN FRANCISCO.  NOW, WHY PICK ON THAT DATE SO
SPECIFICALLY IF YOU ARE NOT - IF NOT TO BEWARE OF THAT DATE, THAT YOU
WANT TO BEWARE.  WELL, HE SAYS, 'YOU HAVE GIVEN TWO DIFFERENT STORIES. 
DO YOU HAVE PROBLEMS WITH BLACKOUTS OR EXCESSIVE DRINKING', AND SHE
SAYS 'NO.'  AND I TELL YOU, LADIES AND GENTLEMEN, THAT ANYBODY, AND
THERE IS NO EVIDENCE TO THE CONTRARY IN THIS CASE, IF YOU DON'T
HONESTLY REMEMBER WHAT OCCURRED AND YOU KNOW, YOU ARE IN A SITUATION
WHERE THERE IS A FUGITIVE WARRANT AND YOU HAVE JUST BEEN ARRESTED AND
YOU IN ALL HONESTY DON'T REMEMBER WHERE YOU WERE, THAT IS THE FIRST
THING THAT YOU ARE GOING TO SAY.  YOU'RE NOT GOING TO SIT UP AND TRUMP
UP EXCUSES AND MAKE OUT A STORY WHICH YOU KNOW TO BE A LIE ABOUT
SPECIFIC DATES AND TIMES.  AND, LADIES AND GENTLEMEN, THERE IS NO LEGAL
EVIDENCE BEFORE YOU THAT IT IS ANYTHING TO THE CONTRARY, BECAUSE THE
ONLY ONE NOW THAT CAN COME UP AND TELL YOU HAS NOT SEEN FIT TO DO SO. 

     *         *         *         *         * 

"  ...  MR. JOHNSON WOULD HAVE YOU BELIEVE THAT EVERYTHING SHE SAID
WAS THE TRUTH.  I THINK THERE ARE SOME INSTANCES THAT INDICATE ALREADY
I HAVE INDICATED SOME, THE PURPOSE OF THE GUNS, TWO DIFFERENT IDEAS
THERE AS TO WHY THEY WERE PURCHASED, BUT THAT IS THE ONLY LEGAL PURPOSE
FOR THAT.  SO IT'S NOT EVIDENCE, ALTHOUGH MR. JOHNSON AGAIN I SAY
ARGUED AND REFERRED TO IT AS THOUGH IT WAS.  WE HAVE NO EVIDENCE FROM
THE LIPS OF MRS. CHAPMAN.  NOW, AS MR. FERGUSON TOLD YOU, IT IS THEIR
CONSTITUTIONAL RIGHT, AND I WON'T GO INTO THAT AGAIN, BECAUSE I THINK
HE HANDLED IT VERY CLEARLY AS WELL AS THE OTHERS, BUT THAT IS WITHIN
HER RIGHT TO DO AS SHE SEES FIT.  BUT, YOU CAN CONSIDER IT FOR THE
PURPOSES AND UNDER THE CIRCUMSTANCES THAT MR. FERGUSON INDICATED A
NUMBER OF TIMES. 

     *         *     *         *         * 

"ORIGINALLY WHEN DR. WINKLER EXAMINED HER ON THE 31ST, I BELIEVE IT
WAS, OF OCTOBER, 1962, SHE TOLD HIM THAT SHE HAD FORGOTTEN AFTER THE
FIRST SHOT WAS FIRED, AFTER THE FIRST SHOT WAS FIRED.  SINCE THAT TIME
WHAT HAS HAPPENED?  THE AMNESIA, OR DISASSOCIATIVE STATE, OR
DISASSOCIATIVE REACTION, WHICH EVER WAY YOU WANT TO LOOK AT IT,
PSYCHIATRICALLY OR OTHERWISE, SEEMS TO HAVE BACKED UP FROM DILLARD ROAD
BACK UP TO THE SPOT CLUB, BACK UP DOWN HIGHWAY 99 SOUTH TO JUST OUTSIDE
OF CROCE'S, AND BY THE TIME WE GET THROUGH CROSS-EXAMINING DR.
SHEUERMAN IT EVEN BACKED IN TO CROCE'S. A VAGUE AREA.  VERY
INTERESTING.  WE COULD HAVE PUT IT ON, PUT THE STATEMENT IN.  IT'S
EVIDENCE?  IT'S NOT.  AGAIN, THE SANCTITY AND WORTHINESS OF EVIDENCE
WOULD HAVE TO COME FROM HER LIPS, HERS ON THE STAND HERE.  WHY?  HERE
AGAIN, BECAUSE WITNESSES WOULD BE UNDER OATH AGAIN, AND I REPEAT, AND I
REPEAT FOR EMPHASIS, THEY WOULD HAVE TO BE UNDER OATH SUBJECT TO CROSS
EXAMINATION BEFORE YOUR VERY EYES SO THAT YOU COULD EVALUATE IT.  OH
YES.  SHE SAID THIS AND SHE SAID THAT.  WHO SAID IT?  WHO SAID IT?
RUTH ELIZABETH CHAPMAN ON THE STAND?  NO. DR. SHEUERMAN SAID THAT SHE
SAID IT.  DR. WINKLER SAID THAT SHE SAID.  MR. JOHNSON SAID THAT SHE
SAID.  WELL, IT'S AN INTERESTING THING THAT THE ONLY WITNESSES WHO
WEREN'T HERE, OR WEREN'T ON THE STAND TO BE CROSS-EXAMINED, THE ONLY
WITNESSES WHO ARE ALIVE TODAY TO THE PERPETRATION OF THESE OFFENSES,
ARE THESE TWO DEFENDANTS.  THAT'S ALL.  THEY DON'T HAVE TO TAKE THE
STAND.  THAT'S BEEN GONE OVER MANY TIMES, BUT YOU KNOW IT WOULD BE A
FINE THING, VERY FINE DEED IF PERSONS WHO PERPETRATED OFFENSES GAVE A
STORY, PUT A STORY ON BY SOMEBODY ELSE, HAVE SOMEBODY ELSE SPEAK FOR
YOU - WOULDN'T IT?  IT WOULD BE A VERY INTERESTING THING.  YOU WOULD
NEVER HAVE THE BENEFIT OF EVALUATING THEIR CREDIBILITY.  THIS IS WHAT
MR. JOHNSON WOULD HAVE YOU BELIEVE THAT WE SHOULD HAVE DONE.  MONDAY
MORNING QUARTERBACKING.  AND I SUBMIT TO YOU - YOU KNOW, YOU - YOU HAVE
HEARD MUCH ABOUT LAWYERS BEING REFERRED TO AS 'MOUTHPIECES.'  IT'S
ACTUALLY A VERY RARE THING, REALLY, THAT THAT TYPE OF APPELLATION IS
APPLICABLE TO LAWYERS REALLY.  BUT, I THINK YOU HAVE SEEN A
DEMONSTRATION HERE, AND I'M NOT SAYING IT IN RANCOR, NOT ANYTHING OF IT
AT ALL, BECAUSE THIS IS A DEMONSTRATION WHERE ACTUALLY RUTH ELIZABETH
CHAPMAN IS SPEAKING THROUGH MR.  JOHNSON.  A 'MOUTHPIECE.' 

     *         *         *         *        * 

"MAYBE THERE IS ANOTHER REASONABLE ONE, OTHER THAN THE FACT THAT IT
WAS ADCOCK'S BLOOD, BECAUSE ALL THREE WHO WERE IN THE CAR HAD TYPE A.
MAYBE THERE IS, BUT YOU HAVEN'T HEARD IT.  YOU HAVEN'T HEARD ANY
REASONABLE EXPLANATION OF THAT.  SO, YOU CAN DRAW AN ADVERSE INFERENCE
THAT IT WAS BILLY DEAN ADCOCK'S BLOOD  ...  . 

"MR. JOHNSON SAID THESE SEVERAL THINGS WHICH I WILL GO OVER AGAIN. 
THE EVIDENCE SHOWED HERE THAT SHE BOUGHT TWO GUNS FOR TEALE.  WHAT
EVIDENCE?  NO WITNESS ON THE STAND GOT UP THERE AND SAID SPECIFICALLY
UNDER OATH, AND THE ONLY ONE THAT COULD DO IT WOULD BE ELIZABETH
CHAPMAN HERSELF.  THIS IS HEARSAY, WHAT SHE TOLD SOMEBODY ELSE FOR THE
SOLE PURPOSE OF DETERMINING WHAT HER STATE OF MIND WAS AT THE TIME. 
IT'S NOT EVIDENCE.  THERE'S SOME EVIDENCE FROM HER OWN LIPS THROUGH
DENNIS MACK AS TO THE REASON SHE BOUGHT THE GUN, WHICH IS DIFFERENT
THAN WHAT SHE SAID OTHERWISE.  MR. JOHNSON SAID THE EVIDENCE SHOWS
THERE WAS AN ARGUMENT IN FRESNO.  HERE AGAIN I WOULD SAY, 'WHAT
EVIDENCE?'  THE NEXT ONE - THERE ARE ONLY TWO PEOPLE THERE TO THAT
ARGUMENT, AND THE ONLY WAY IT WOULD BE EVIDENCE, OR TESTIMONY IN THIS
CASE, WOULD BE IF EITHER ONE OR BOTH OF THEM GOT UP THERE AND SAID
THERE WAS AN ARGUMENT.  THEY CHOSE NOT TO DO IT.  YOU CAN DRAW AN
ADVERSE INFERENCE THAT THAT BEING WITHIN THEIR KNOWLEDGE, THAT THEY
COULD EXPLAIN, WHETHER IT WAS OR NOT.  YOU CAN DRAW AN INFERENCE THAT
IT WASN'T THE TYPE OF ARGUMENT THAT MR. JOHNSON CLAIMS THE EVIDENCE
SHOWS, BECAUSE THE EVIDENCE DOESN'T SHOW THAT AT ALL. 

     *         *         *         *         * 

"SO FAR AS THE MOTIVE IS CONCERNED FOR THE MURDER IN A PERPETRATION OF
A ROBBERY, THE MOTIVE WAS SET, TO GAIN FOR THEIR OWN DESIRES AND LUSTS
AND SO FORTH, TO GAIN FROM IT.  IT WAS A CRIME OF GAIN, AND PERHAPS
ANOTHER THING TOO, IN DECIDING - WE DON'T KNOW WHO PULLED THE TRIGGER -
WE MAY NEVER KNOW.  THE DEFENDANTS HAVEN'T INDICATED IT, EXCEPT THROUGH
TEALE IN ONE - MR. VOWELL'S TESTIMONY, AS TO WHAT MR. TEALE SAID, BUT
THAT IS NOT ADMISSIBLE AGAINST, AND YOU SHOULDN'T CONSIDER IT AGAINST,
RUTH ELIZABETH CHAPMAN, BUT MAYBE THE CIRCUMSTANCES OF WHO PULLED THE
TRIGGER MIGHT HAVE BEEN A FACTOR THAT MIGHT HAVE BEEN IMPORTANT TO
YOU.  ONLY TWO PEOPLE KNOW.  THEY DIDN'T TELL YOU.  THAT IS THE WAY
THEY WANT TO PROCEED.  BUT NONETHELESS, YOU CAN CONSIDER THAT TOO. 

     *         *         *         *         * 

"SO, IN CONSIDERING WHAT HAPPENED HERE AS TO WHY THIS PERSON WAS
KILLED, YOU SEE YOU CAN WEIGH THESE THINGS AND DECIDE WHAT THE MOTIVE
WAS.  YOU MIGHT HAVE HAD SOME HELP IN DECIDING THIS VERY DIFFICULT TASK
FROM THE VERY ONLY TWO PEOPLE REMAINING WHO WERE AT THE SCENE, BUT IN
THEIR BEST JUDGMENT THEY DIDN'T CHOOSE TO GET UP AND TELL YOU ABOUT IT,
WHICH YOU CERTAINLY CAN CONSIDER THAT FACT THAT THEY DID NOT IN THE
LIGHT OF USING YOUR REASON AS I HAVE INDICATED HERE TOO. 

     *         *       *         *         * 

"YOU KNOW THAT SOMEBODY SHOT BILLY DEAN ADCOCK, AND YOU KNOW THAT IT
WAS EITHER - IT WAS ONE OR EVEN BOTH OF THESE DEFENDANTS, IN VIEW OF
YOUR VERDICT, BUT WHICH ONE YOU DON'T KNOW.  NOW, THIS IS SOMETHING
THAT PERHAPS MIGHT HAVE BEEN OF HELP TO YOU IN DECIDING WHAT PUNISHMENT
TO METE OUT, WHETHER BOTH SHOULD BE PUNISHED EQUALLY IN THIS CASE, OR
WHETHER THERE SHOULD BE SOME DISTINCTION BETWEEN THE TWO.  IT MIGHT
HAVE BEEN HELPFUL TO KNOW WHO PULLED THAT TRIGGER, FOR IF IT WAS RUTH
ELIZABETH CHAPMAN YOU COULD WELL DEDUCE THAT IT WAS EITHER HER
INTOXICATION OR EMOTIONAL STRESS OR A JEALOUSY OF TEALE, OR ANGER, AND
A LOT OF THINGS OTHER THAN THE MOTIVE TO DESTROY A WITNESS; WHEREAS,
WITH RESPECT TO MR. TEALE IT WOULD SEEM TO BE A LOGICAL THING TO
CONCLUDE THAT HE WANTED TO GET RID OF THE ONLY EYEWITNESS.  DIFFERENCES
THERE, YOU SEE.  BUT YOU DON'T KNOW.  YOU DON'T KNOW WHETHER THEY DID
IT IN CONSORT.  YOU DON'T KNOW THAT AS FAR AS PULLING THE TRIGGER. 
BUT, THIS IS A FACTOR WHICH HAS NOT BEEN BROUGHT TO LIGHT, AND YOU CAN
CONSIDER THAT FACTOR WHICH HAS NOT BEEN, FROM THE STANDPOINT THERE HAVE
BEEN TWO PEOPLE THAT MIGHT HAVE EXPLAINED THAT. 

*         *         *         *         * 

"I HAVE GONE INTO THE STATEMENT HERE AND WHY IT HASN'T BEEN
PRESENTED.  IF YOU ARE GOING TO DECIDE THINGS SUCH AS CHARACTER AND
SYMPATHY, THE LAW SAYS YOU MAY TAKE INTO CONSIDERATION, HOW CAN YOU DO
IT BY A STATEMENT?  NOW, WE ARE TALKING ABOUT THIS PHASE OF THE CASE. 
THIS NOW.  YOU LIKE TO KNOW THAT PERSONS GET - IF THERE IS SOMETHING
ABOUT THEIR CHARACTER THAT THEY CAN TELL YOU, OR SOMETHING ABOUT THEIR
BACKGROUND THAT THEY CAN TELL YOU, YOU LIKE TO HEAR IT FROM THEM,
BECAUSE YOU HAVE A VERY SERIOUS AND DIFFICULT TASK, AND THE FACT THAT
THEY CHOSE TO REST UPON WHATEVER EVIDENCE THERE IS HERE IN THE CASE IN
CHIEF IS SOMETHING THAT YOU CAN CONSIDER IN DECIDING WHETHER OR NOT
THEY HAD BEEN FAIR WITH YOU. 

"THIS IS THE CHANCE THAT THEY TAKE BY NOT HAVING TAKEN THE STAND." 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

IN DEVISING A HARMLESS-ERROR RULE FOR VIOLATIONS OF FEDERAL
CONSTITUTIONAL RIGHTS, BOTH THE COURT AND THE DISSENT PROCEED AS IF THE
QUESTION WERE ONE OF FIRST IMPRESSION.  BUT IN A LONG LINE OF CASES,
INVOLVING A VARIETY OF CONSTITUTIONAL CLAIMS IN BOTH STATE AND FEDERAL
PROSECUTIONS, THIS COURT HAS STEADFASTLY REJECTED ANY NOTION THAT
CONSTITUTIONAL VIOLATIONS MIGHT BE DISREGARDED ON THE GROUND THAT THEY
WERE "HARMLESS."  ILLUSTRATIONS OF THE PRINCIPLE ARE LEGION. 

WHEN INVOLUNTARY CONFESSIONS HAVE BEEN INTRODUCED AT TRIAL, THE COURT
HAS ALWAYS REVERSED CONVICTIONS REGARDLESS OF OTHER EVIDENCE OF GUILT. 
AS WE STATED IN LYNUMN V. ILLINOIS, 372 U.S. 528, 537, THE ARGUMENT
THAT THE ERROR IN ADMITTING SUCH A CONFESSION "WAS A HARMLESS ONE ...
IS AN IMPERMISSIBLE DOCTRINE."  THAT CONCLUSION HAS BEEN ACCORDED
CONSISTENT RECOGNITION BY THIS COURT.  MALINSKI V. NEW YORK, 324 U.S.
401, 404; PAYNE V. ARKANSAS, 356 U.S. 560, 568; SPANO V. NEW YORK, 360
U.S. 315, 324; HAYNES V. WASHINGTON, 373 U.S. 503, 518-519; JACKSON V.
DENNO, 378 U.S. 368, 376-377.  EVEN WHEN THE CONFESSION IS COMPLETELY
"UNNECESSARY" TO THE CONVICTION, THE DEFENDANT IS ENTITLED TO "A NEW
TRIAL FREE OF CONSTITUTIONAL INFIRMITY."  HAYNES V. WASHINGTON, SUPRA,
AT 518-519.  (FN1) 

WHEN A DEFENDANT HAS BEEN DENIED COUNSEL AT TRIAL, WE HAVE REFUSED TO
CONSIDER CLAIMS THAT THIS CONSTITUTIONAL ERROR MIGHT HAVE BEEN
HARMLESS.  "THE RIGHT TO HAVE THE ASSISTANCE OF COUNSEL IS TOO
FUNDAMENTAL AND ABSOLUTE TO ALLOW COURTS TO INDULGE IN NICE
CALCULATIONS AS TO THE AMOUNT OF PREJUDICE ARISING FROM ITS DENIAL." 
GLASSER V. UNITED STATES, 315 U.S. 60, 76.  THAT, INDEED, WAS THE WHOLE
POINT OF GIDEON V. WAINWRIGHT, 372 U.S. 335, OVERRULING BETTS V. BRADY,
316 U.S. 455.  EVEN BEFORE TRIAL, WHEN COUNSEL HAS NOT BEEN PROVIDED AT
A CRITICAL STAGE, "WE DO NOT STOP TO DETERMINE WHETHER PREJUDICE
RESULTED."  HAMILTON V. ALABAMA, 368 U.S. 52, 55; WHITE V. MARYLAND,
373 U.S. 59, 60. 

A CONVICTION MUST BE REVERSED IF THE TRIAL JUDGE'S REMUNERATION IS
BASED ON A SCHEME GIVING HIM A FINANCIAL INTEREST IN THE RESULT, EVEN
IF NO PARTICULAR PREJUDICE IS SHOWN AND EVEN IF THE DEFENDANT WAS
CLEARLY GUILTY.  TUMEY V. OHIO, 273 U.S. 510, 535.  TO TRY A DEFENDANT
IN A COMMUNITY THAT HAS BEEN EXPOSED TO PUBLICITY HIGHLY ADVERSE TO THE
DEFENDANT IS PER SE GROUND FOR REVERSAL OF HIS CONVICTION; NO SHOWING
NEED BE MADE THAT THE JURORS WERE IN FACT PREJUDICED AGAINST HIM. 
SHEPPARD V. MAXWELL, 384 U.S. 333, 351-352; CF.  RIDEAU V. LOUISIANA,
373 U.S. 723, 727.  SEE ALSO ESTES V. TEXAS, 381 U.S. 532, 542-544; 562
564 (WARREN, C.J., CONCURRING); 593-594 (HARLAN, J., CONCURRING). 

WHEN A JURY IS INSTRUCTED IN AN UNCONSTITUTIONAL PRESUMPTION, THE
CONVICTION MUST BE OVERTURNED, THOUGH THERE WAS AMPLE EVIDENCE APART
FROM THE PRESUMPTION TO SUSTAIN THE VERDICT.  BOLLENBACH V. UNITED
STATES, 326 U.S. 607, 614-615.  REVERSAL IS REQUIRED WHEN A CONVICTION
MAY HAVE BEEN RESTED ON A CONSTITUTIONALLY IMPERMISSIBLE GROUND,
DESPITE THE FACT THAT THERE WAS A VALID ALTERNATIVE GROUND ON WHICH THE
CONVICTION COULD HAVE BEEN SUSTAINED.  STROMBERG V. CALIFORNIA, 283
U.S. 359, 367-368; WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 292.  IN A
LONG LINE OF CASES LEADING UP TO AND INCLUDING WHITUS V. GEORGIA, 385
U.S. 545, IT HAS NEVER BEEN SUGGESTED THAT REVERSAL OF CONVICTIONS
BECAUSE OF PURPOSEFUL DISCRIMINATION IN THE SELECTION OF GRAND AND
PETIT JURORS TURNS ON ANY SHOWING OF PREJUDICE TO THE DEFENDANT. 

TO BE SURE, CONSTITUTIONAL RIGHTS ARE NOT FUNGIBLE GOODS.  THE
DIFFERING VALUES WHICH THEY REPRESENT AND PROTECT MAY MAKE A HARMLESS
ERROR RULE APPROPRIATE FOR ONE TYPE OF CONSTITUTIONAL ERROR AND NOT FOR
ANOTHER.  I WOULD NOT FORECLOSE THE POSSIBILITY THAT A HARMLESS-ERROR
RULE MIGHT APPROPRIATELY BE APPLIED TO SOME CONSTITUTIONAL VIOLATIONS. 
(FN2)  INDEED, ONE SOURCE OF MY DISAGREEMENT WITH THE COURT'S OPINION
IS ITS IMPLICIT ASSUMPTION THAT THE SAME HARMLESS-ERROR RULE SHOULD
APPLY INDISCRIMINATELY TO ALL CONSTITUTIONAL VIOLATIONS. 

BUT I SEE NO REASON TO BREAK WITH SETTLED PRECEDENT IN THIS CASE, AND
PROMULGATE A NOVEL RULE OF HARMLESS ERROR APPLICABLE TO CLEAR
VIOLATIONS OF GRIFFIN V. CALIFORNIA, 380 U.S. 609.  (FN3)  THE ADOPTION
OF ANY HARMLESS-ERROR RULE, WHETHER THE ONE PROPOSED BY THE COURT, OR
BY THE DISSENT, OR SOME OTHER RULE, COMMITS THIS COURT TO A CASE-BY
CASE EXAMINATION TO DETERMINE THE EXTENT TO WHICH WE THINK
UNCONSTITUTIONAL COMMENT ON A DEFENDANT'S FAILURE TO TESTIFY INFLUENCED
THE OUTCOME OF A PARTICULAR TRIAL.  THIS BURDENSOME OBLIGATION IS ONE
THAT WE HERE ARE HARDLY QUALIFIED TO DISCHARGE. 

A RULE OF AUTOMATIC REVERSAL WOULD SEEM BEST CALCULATED TO PREVENT
CLEAR VIOLATIONS OF GRIFFIN V. CALIFORNIA.  THIS CASE IS ONE IN WHICH
THE TRIAL OCCURRED BEFORE THE GRIFFIN DECISION BUT WHICH WAS NOT FINAL
ON APPEAL UNTIL AFTERWARDS, SO THE DOCTRINE OF PROSPECTIVITY ANNOUNCED
IN TEHAN V. SHOTT, 382 U.S. 406, DOES NOT REACH IT.  BUT THE NUMBER OF
SUCH CASES IS STRICTLY LIMITED.  PROSECUTORS ARE UNLIKELY TO INDULGE IN
CLEAR VIOLATIONS OF GRIFFIN IN THE FUTURE, AND IF THEY DO I SEE NO
REASON WHY THE SANCTION OF REVERSAL SHOULD NOT BE THE RESULT. 

FOR THESE REASONS I BELIEVE IT INAPPROPRIATE TO INQUIRE WHETHER THE
VIOLATION OF GRIFFIN V. CALIFORNIA THAT OCCURRED IN THIS CASE WAS
HARMLESS BY ANY STANDARD, AND ACCORDINGLY I CONCUR IN THE REVERSAL OF
THE JUDGMENT. 

FN1  NONE OF THESE DECISIONS SUGGESTS THAT THE REJECTION OF A
HARMLESS-ERROR RULE TURNS ON ANY UNIQUE EVIDENTIARY IMPACT THAT
CONFESSIONS MAY HAVE.  HAYNES V. WASHINGTON, 373 U.S. 503, SPECIFICALLY
CONTRADICTS THAT NOTION.  IN ADDITION TO THE CONFESSION FOUND
INADMISSIBLE BY THIS COURT, THE DEFENDANT IN HAYNES HAD GIVEN TWO PRIOR
CONFESSIONS, THE ADMISSIBILITY OF WHICH WAS NOT DISPUTED, AND
"SUBSTANTIAL INDEPENDENT EVIDENCE" OF GUILT EXISTED.  THE COURT
ACCEPTED THE PROSECUTION'S CONTENTION THAT THE INADMISSIBLE CONFESSION
PLAYED LITTLE IF ANY ROLE IN THE CONVICTION. 

FN2  FOR EXAMPLE, QUITE DIFFERENT CONSIDERATIONS ARE INVOLVED WHEN
EVIDENCE IS INTRODUCED WHICH WAS OBTAINED IN VIOLATION OF THE FOURTH
AND FOURTEENTH AMENDMENTS.  THE EXCLUSIONARY RULE IN THAT CONTEXT
BALANCES THE DESIRABILITY OF DETERRING OBJECTIONABLE POLICE CONDUCT
AGAINST THE UNDESIRABILITY OF EXCLUDING RELEVANT AND RELIABLE
EVIDENCE.  THE RESOLUTION OF THESE VALUES WITH INTERESTS OF JUDICIAL
ECONOMY MIGHT WELL DICTATE A HARMLESS-ERROR RULE FOR SUCH VIOLATIONS. 
CF. FAHY V. CONNECTICUT, 375 U.S. 85, 92 (DISSENTING OPINION). 

FN3  EARLIER THIS TERM, IN O'CONNOR V. OHIO, 385 U.S. 92, WE REVERSED
A CONVICTION ON THE BASIS OF GRIFFIN V. CALIFORNIA, 380 U.S. 609,
WITHOUT PAUSING TO CONSIDER WHETHER THE COMMENT ON THE DEFENDANT'S
SILENCE MIGHT HAVE BEEN HARMLESS ERROR UNDER THE RULE THE COURT
ANNOUNCES TODAY, OR ANY OTHER HARMLESS-ERROR RULE. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT TODAY HOLDS THAT THE HARMLESSNESS OF A TRIAL ERROR IN A
STATE CRIMINAL PROSECUTION, SUCH ERROR RESULTING FROM THE ALLOWANCE OF
PROSECUTORIAL COMMENT BARRED BY THE FOURTEENTH AMENDMENT, MUST BE
DETERMINED UNDER A "NECESSARY RULE" OF FEDERAL LAW.  THE COURT IMPOSES
A REVISED VERSION OF THE STANDARD UTILIZED IN FAHY V. CONNECTICUT, 375
U.S. 85, ON STATE APPELLATE COURTS, NOT BECAUSE THE CONSTITUTION
REQUIRES THAT PARTICULAR STANDARD, BUT BECAUSE THE COURT PREFERS IT. 

MY UNDERSTANDING OF OUR FEDERAL SYSTEM, AND MY VIEW OF THE RATIONALE
AND FUNCTION OF HARMLESS-ERROR RULES AND THEIR STATUS UNDER THE
FOURTEENTH AMENDMENT, LEAD ME TO A VERY DIFFERENT CONCLUSION.  I WOULD
HOLD THAT A STATE APPELLATE COURT'S REASONABLE APPLICATION OF A
CONSTITUTIONALLY PROPER STATE HARMLESS-ERROR RULE TO SUSTAIN A STATE
CONVICTION CONSTITUTES AN INDEPENDENT AND ADEQUATE STATE GROUND OF
JUDGMENT.  BELIEVING THIS TO BE THE SITUATION HERE, I WOULD DISMISS THE
WRIT.  VIATOR V. STONE, 336 U.S. 948. 

                                               I. 

THE KEY TO THE COURT'S OPINION CAN, I THINK, BE FOUND IN ITS
STATEMENT THAT IT CANNOT "LEAVE TO THE STATES THE FORMULATION OF THE
AUTHORITATIVE LAWS, RULES, AND REMEDIES DESIGNED TO PROTECT PEOPLE FROM
INFRACTIONS BY THE STATES OF FEDERALLY GUARANTEED RIGHTS," AND THAT "IN
THE ABSENCE OF APPROPRIATE CONGRESSIONAL ACTION" THE COURT MUST FASHION
PROTECTIVE RULES.  THE HARMLESS-ERROR RULE NOW ESTABLISHED FLOWS FROM
WHAT IS SEEMINGLY REGARDED AS A POWER INHERENT IN THE COURT'S
CONSTITUTIONAL RESPONSIBILITIES RATHER THAN FROM THE CONSTITUTION
ITSELF.  THE COURT APPEARS TO ACKNOWLEDGE THAT OTHER HARMLESS-ERROR
FORMULATIONS WOULD BE CONSTITUTIONALLY PERMISSIBLE.  IT CERTAINLY
INDICATES THAT CONGRESS, FOR EXAMPLE, COULD IMPOSE A DIFFERENT
FORMULATION.  (FN1) 

I REGARD THE COURT'S ASSUMPTION OF WHAT AMOUNTS TO A GENERAL
SUPERVISORY POWER OVER THE TRIAL OF FEDERAL CONSTITUTIONAL ISSUES IN
STATE COURTS AS A STARTLING CONSTITUTIONAL DEVELOPMENT THAT IS WHOLLY
OUT OF KEEPING WITH OUR FEDERAL SYSTEM AND COMPLETELY UNSUPPORTED BY
THE FOURTEENTH AMENDMENT WHERE THE SOURCE OF SUCH A POWER MUST BE
FOUND.  THE FOURTEENTH AMENDMENT GUARANTEES INDIVIDUALS AGAINST
INVASIONS BY THE STATES OF FUNDAMENTAL RIGHTS, PALKO V. CONNECTICUT,
302 U.S. 319, AND UNDER MORE RECENT DECISIONS OF THIS COURT SOME OF THE
SPECIFICS OF THE BILL OF RIGHTS AS WELL.  SEE, E.G., IN THE CONTEXT OF
THIS CASE, MALLOY V. HOGAN, 378 U.S. 1; GRIFFIN V. CALIFORNIA, 380 U.S.
609.  IT THUS SERVES AS A LIMITATION ON THE ACTIONS OF THE STATES, AND
LODGES IN THIS COURT THE SAME POWER OVER STATE "LAWS, RULES, AND
REMEDIES" AS THE COURT HAS ALWAYS HAD OVER THE "LAWS, RULES, AND
REMEDIES" CREATED BY CONGRESS.  THIS POWER WAS CLASSICALLY DESCRIBED BY
CHIEF JUSTICE MARSHALL IN MARBURY V. MADISON, 1 CRANCH 137, 178:    "SO
IF A LAW BE IN OPPOSITION TO THE CONSTITUTION; IF BOTH THE LAW AND THE
CONSTITUTION APPLY TO A PARTICULAR CASE, SO THAT THE COURT MUST EITHER
DECIDE THAT CASE CONFORMABLY TO THE LAW, DISREGARDING THE CONSTITUTION;
OR CONFORMABLY TO THE CONSTITUTION, DISREGARDING THE LAW; THE COURT
MUST DETERMINE WHICH OF THESE CONFLICTING RULES GOVERNS THE CASE  ...
." 

NOTHING IN THE FOURTEENTH AMENDMENT PURPORTS TO GIVE FEDERAL COURTS
SUPERVISORY POWERS, IN THE AFFIRMATIVE SENSE OF MCNABB V. UNITED
STATES, 318 U.S. 332, OVER STATE COURTS.  SEE ID., AT 340-341. 
MOREOVER, WHERE THE CONSTITUTIONAL POWER DESCRIBED BY MARSHALL HAS BEEN
INVOKED, THE COURT HAS ALWAYS BEEN ESPECIALLY RELUCTANT TO INTERFERE
WITH STATE PROCEDURAL PRACTICES.  SEE SPENCER V. TEXAS, 385 U.S. 554. 
FROM THE BEGINNING OF THE FEDERAL UNION, STATE COURTS HAVE HAD POWER TO
DECIDE ISSUES OF FEDERAL LAW AND TO FORMULATE "AUTHORITATIVE LAWS,
RULES, AND REMEDIES" FOR THE TRIAL OF THOSE ISSUES.  THE PRIMARY
RESPONSIBILITY FOR THE TRIAL OF STATE CRIMINAL CASES STILL RESTS UPON
THE STATES, AND THE ONLY CONSTITUTIONAL LIMITATION UPON THESE TRIALS IS
THAT THE LAWS, RULES, AND REMEDIES APPLIED MUST MEET CONSTITUTIONAL
REQUIREMENTS.  IF THEY DO NOT, THIS COURT MAY HOLD THEM INVALID.  THE
COURT HAS NO POWER, HOWEVER, TO DECLARE WHICH OF MANY ADMITTEDLY
CONSTITUTIONAL ALTERNATIVES A STATE MAY CHOOSE.  (FN2)  TO IMPOSE
UNIFORM NATIONAL REQUIREMENTS WHEN ALTERNATIVES ARE CONSTITUTIONALLY
PERMISSIBLE WOULD DESTROY THAT OPPORTUNITY FOR BROAD EXPERIMENTATION
WHICH IS THE GENIUS OF OUR FEDERAL SYSTEM. 

EVEN ASSUMING THAT THE COURT HAS THE POWER TO FASHION REMEDIES AND
PROCEDURES BINDING ON STATE COURTS FOR THE PROTECTION OF PARTICULAR
CONSTITUTIONAL RIGHTS, I COULD NOT AGREE THAT A GENERAL HARMLESS-ERROR
RULE FALLS INTO THAT CATEGORY.  THE HARMLESS-ERROR RULES NOW UTILIZED
BY ALL THE STATES AND IN THE FEDERAL JUDICIAL SYSTEM ARE THE PRODUCT OF
JUDICIAL REFORM EARLY IN THIS CENTURY.  PREVIOUSLY MOST AMERICAN
APPELLATE COURTS, CONCERNED ABOUT THE HARSHNESS OF CRIMINAL PENALTIES,
FOLLOWED THE RULE IMPOSED ON ENGLISH COURTS THROUGH THE EFFORTS OF
BARON PARKE, AND HELD THAT ANY ERROR OF SUBSTANCE REQUIRED A REVERSAL
OF CONVICTION.  SEE ORFIELD, CRIMINAL APPEALS IN AMERICA 190.   THE
REFORM MOVEMENT, LED BY AUTHORITIES LIKE ROSCOE POUND AND LEARNED HAND,
RESULTED IN ALLOWING COURTS TO DISCONTINUE USING REVERSAL AS A
"NECESSARY" REMEDY FOR PARTICULAR ERRORS AND "TO SUBSTITUTE JUDGMENT
FOR THE AUTOMATIC APPLICATION OF RULES  ...  ."  4 BARRON, FEDERAL
PRACTICE AND PROCEDURE SEC. 2571, AT 438.  THIS COURT SUMMARIZED THE
NEED FOR THAT DEVELOPMENT IN THE LEADING CASE OF KOTTEAKOS V. UNITED
STATES, 328 U.S. 750, 759: 

"SEC. 269 (A FEDERAL HARMLESS ERROR PROVISION) AND SIMILAR STATE
LEGISLATION GREW OUT OF WIDESPREAD AND DEEP CONVICTION OVER THE GENERAL
COURSE OF APPELLATE REVIEW IN AMERICAN CRIMINAL CAUSES.  THIS WAS
SHORTLY, AS ONE TRIAL JUDGE PUT IT AFTER SEC. 269 HAD BECOME LAW, THAT
COURTS OF REVIEW 'TOWER ABOVE THE TRIALS OF CRIMINAL CASES AS
IMPREGNABLE CITADELS OF TECHNICALITY.'  ... CRIMINAL TRIAL BECAME A
GAME FOR SOWING REVERSIBLE ERROR IN THE RECORD." 

HOLDING, AS IS DONE TODAY, THAT A SPECIAL HARMLESS-ERROR RULE IS A
NECESSARY REMEDY FOR A PARTICULAR KIND OF ERROR REVIVES THE UNFORTUNATE
IDEA THAT APPELLATE COURTS MUST ACT ON PARTICULAR ERRORS RATHER THAN
DECIDE ON REVERSAL BY AN EVALUATION OF THE ENTIRE PROCEEDING TO
DETERMINE WHETHER THE CAUSE AS A WHOLE HAS BEEN DETERMINED ACCORDING TO
PROPERLY APPLICABLE LAW.  IN THIS CASE, CALIFORNIA HAS RECOGNIZED THE
IMPROPRIETY OF THE TRIAL COMMENT HERE INVOLVED, AND HAS GIVEN CLEAR
DIRECTION TO STATE TRIAL COURTS FOR THE FUTURE.  CERTAINLY THIS IS THE
APPROPRIATE REMEDY FOR THE CONSTITUTIONAL ERROR COMMITTED.  THE
CHALLENGED DECISION HAS NO DIRECT RELATION TO FEDERAL CONSTITUTIONAL
PROVISIONS, RATHER IT IS AN ANALYSIS OF THE QUESTION WHETHER THIS
ADMITTEDLY IMPROPER COMMENT HAD ANY SIGNIFICANT IMPACT ON THE OUTCOME
OF THE TRIAL.  IN KOTTEAKOS, SUPRA, THIS COURT DESCRIBED THE "MATERIAL
FACTORS" IN HARMLESS-ERROR DETERMINATIONS AS "THE CHARACTER OF THE
PROCEEDING, WHAT IS AT STAKE UPON ITS OUTCOME, AND THE RELATION OF THE
ERROR ASSERTED TO CASTING THE BALANCE FOR DECISION ON THE CASE AS A
WHOLE  ...  ."  ID., AT 762.  NONE OF THESE FACTORS HAS ANY RELATION TO
SUBSTANTIVE CONSTITUTIONAL PROVISIONS, AND I THINK THE COURT ERRS IN
CONCEIVING OF AN APPLICATION OF HARMLESS-ERROR RULES AS A REMEDY
DESIGNED TO SAFEGUARD PARTICULAR CONSTITUTIONAL RIGHTS.  (FN3)  IT
SEEMS CLEAR TO ME THAT HARMLESS-ERROR RULES CONCERN, INSTEAD, THE
FUNDAMENTAL INTEGRITY OF THE JUDICIAL PROCEEDINGS AS A WHOLE. 

AS INDICATED ABOVE, I AM OF THE OPINION THAT THE VALIDITY OF A
CHALLENGED STATE HARMLESS-ERROR RULE ITSELF IS A FEDERAL CONSTITUTIONAL
QUESTION.  HARMLESS-ERROR RULES MAY, AS THE COURT SAYS, "WORK VERY
UNFAIR AND MISCHIEVOUS RESULTS."  AND JUST CONCERN CAN BE EXPRESSED
OVER THE POSSIBILITY THAT STATE HARMLESS-ERROR DECISIONS MAY RESULT IN
THE DILUTION OF NEW CONSTITUTIONAL DOCTRINES BECAUSE OF STATE HOSTILITY
TO THEM.  HOWEVER, THE RECORD IS BARREN OF ANY SHOWING THAT THE
CALIFORNIA COURTS, WHICH HAVE BEEN IN THE VANGUARD IN THE DEVELOPMENT
OF INDIVIDUAL SAFEGUARDS IN CRIMINAL TRIALS, (FN4) ARE USING THEIR
HARMLESS-ERROR RULE TO DESTROY OR DILUTE CONSTITUTIONAL GUARANTEES.  IF
THE CONTRARY WERE THE CASE AND THE HARMLESS-ERROR RULE ITSELF WERE
SHOWN TO HAVE RESULTED IN A COURSE OF CONVICTIONS SIGNIFICANTLY
INFLUENCED BY CONSTITUTIONALLY IMPERMISSIBLE FACTORS, I THINK IT CLEAR
THAT CONSTITUTIONAL DUE PROCESS COULD NOT COUNTENANCE THE CONTINUED
APPLICATION OF THE RULE.  (FN5)  AND INDIVIDUAL APPLICATIONS OF A
PERMISSIBLE RULE WOULD STILL BE SUBJECT TO SCRUTINY AS TO THE
TENABILITY OF THE INDEPENDENT AND ADEQUATE STATE GROUND.  SEE THOMPSON
V. LOUISVILLE, 362 U.S. 199; TERRE HAUTE & INDIANAPOLIS RAILROAD CO. V.
INDIANA EX REL. KETCHAM, 194 U.S. 579; NOTE, THE UNTENABLE NONFEDERAL
GROUND IN THE SUPREME COURT, 74 HARV. L. REV. 1375. 

I THUS SEE NO NEED FOR THIS NEW CONSTITUTIONAL DOCTRINE.  (FN6)
DECISION OF THIS CASE SHOULD TURN INSTEAD ON THE ANSWERS TO TWO
QUESTIONS:  IS THE CALIFORNIA HARMLESS-ERROR PROVISION CONSISTENT WITH
THE GUARANTEE OF FUNDAMENTAL FAIRNESS EMBODIED IN THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT?  SEE PALKO V. CONNECTICUT, SUPRA.
WAS ITS APPLICATION IN THIS INSTANCE BY THE CALIFORNIA SUPREME COURT A
REASONABLE ONE OR WAS THE RULE APPLIED ARBITRARILY TO EVADE THE
UNDERLYING CONSTITUTIONAL MANDATE OF FUNDAMENTAL FAIRNESS?  THESE
ISSUES WILL NOW BE CONSIDERED. 

                      II. 

THE CALIFORNIA HARMLESS-ERROR RULE IS INCORPORATED IN THAT STATE'S
CONSTITUTION.  IT WAS FIRST ADOPTED BY A VOTE OF THE PEOPLE IN 1911 AND
READOPTED AS PART OF THE REVISED CONSTITUTION IN 1966.  WHILE ITS
LANGUAGE ALLOWS REVERSAL ONLY WHERE THERE HAS BEEN A "MISCARRIAGE OF
JUSTICE," A LONG COURSE OF JUDICIAL DECISIONS HAS SHAPED THE RULE IN A
MANNER WHICH CANNOT BE IGNORED.  CALIFORNIA COURTS WILL NOT ALLOW A
CONVICTION BASED UPON AN IMPROPERLY OBTAINED CONFESSION TO STAND.  SEE,
E.G., PEOPLE V. DORADO, 62 CAL. 2D 338, 398 P.2D 361; PEOPLE V. SEARS,
62 CAL. 2D 737, 401 P.2D 938.  NOR WILL THE FACT THAT SUFFICIENT
EVIDENCE TO SUPPORT THE CONVICTION IS PRESENT ABSENT THE TAINTED
EVIDENCE PRECLUDE A REVERSAL.  SEE, E.G., PEOPLE V. PATUBO, 9 CAL. 2D
537, 71 P.2D 270; PEOPLE V. MAHONEY, 201 CAL. 618, 258 P. 607.  AND
REVERSAL WILL BE REQUIRED WHEN THE TAINTED EVIDENCE IS INTRODUCED IN
INTENTIONAL VIOLATION OF CONSTITUTIONAL STANDARDS.  SEE PEOPLE V.
SARAZZAWSKI, 27 CAL. 2D 7, 161 P.2D 934.  THUS THE CALIFORNIA RULE AND
THE "FEDERAL RULE" TODAY DECLARED APPLICABLE TO STATE ADJUDICATION ARE
PARALLEL IN THESE SPECIAL INSTANCES (FN7) AND THEIR DIVERGENCE, IF ANY,
ARISES FROM THE GENERAL FORMULATION FOUND IN THE OPINIONS OF THE
CALIFORNIA SUPREME COURT. 

IN PEOPLE V. WATSON, 46 CAL. 2D 818, 299 P.2D 243, THE CALIFORNIA
SUPREME COURT UNDERTOOK A GENERAL DISCUSSION OF THE APPLICATION OF THE
STATE HARMLESS-ERROR RULE.  IT DECLARED THAT THE "FINAL TEST" WAS "THE
'OPINION' OF THE REVIEWING COURT, IN THE SENSE OF ITS BELIEF OR
CONVICTION, AS TO THE EFFECT OF THE ERROR; AND THAT ORDINARILY WHERE
THE RESULT APPEARS JUST, AND IT FURTHER APPEARS THAT SUCH RESULT WOULD
HAVE BEEN REACHED IF THE ERROR HAD NOT BEEN COMMITTED, A REVERSAL WILL
NOT BE ORDERED."  REVERSAL WOULD BE REQUIRED ONLY WHEN "IT IS
REASONABLY PROBABLE THAT A RESULT MORE FAVORABLE TO THE APPEALING PARTY
WOULD HAVE BEEN REACHED," AND THIS JUDGMENT "MUST NECESSARILY BE BASED
UPON REASONABLE PROBABILITIES RATHER THAN UPON MERE POSSIBILITIES;
OTHERWISE THE ENTIRE PURPOSE OF THE CONSTITUTIONAL PROVISION WOULD BE
DEFEATED."  46 CAL. 2D, AT 835-837, 299 P.2D, AT 254-255.  THIS
FORMULATION MAY SOUND SOMEWHAT DIFFERENT FROM THAT ANNOUNCED TODAY, BUT
ON CLOSER ANALYSIS THE DISTINCTION BETWEEN PROBABILITY AND POSSIBILITY
BECOMES ESSENTIALLY ESOTERIC.  IN FACT, CALIFORNIA COURTS HAVE AT TIMES
EQUATED THE CALIFORNIA STANDARD WITH THE STANDARD UTILIZED BY THIS
COURT IN FAHY V. CONNECTICUT, SUPRA.  SEE, E.G., PEOPLE V. JACOBSON, 63
CAL. 2D 319, 331, 405 P.2D 555, 563. 

SIMILARLY, MEMBERS OF THIS COURT HAVE USED A VARIETY OF VERBAL
FORMULAE IN DECIDING QUESTIONS OF HARMLESS ERROR IN FEDERAL CASES,
RANGING FROM TODAY'S "REASONABLE DOUBT" STANDARD TO THE ABILITY TO "SAY
WITH FAIR ASSURANCE  ...  THAT THE JURY WAS NOT SUBSTANTIALLY SWAYED
...  ."  FISWICK V. UNITED STATES, 329 U.S. 211, 218.  AND THE CIRCUIT
COURTS HAVE BEEN EQUALLY VARIED IN THEIR EXPRESSIONS.  SEE UNITED
STATES V. BROWN, 79 F.2D 321; UNITED STATES V. FEINBERG, 140 F.2D 592;
UNITED STATES V. MCMASTER, 343 F.2D 176. 

AGAINST THIS BACKGROUND THE CALIFORNIA RULE CAN HARDLY BE SAID TO BE
OUT OF KEEPING WITH FUNDAMENTAL FAIRNESS, AND I SEE NO REASON FOR
STRIKING IT DOWN ON ITS FACE AS A VIOLATION OF THE GUARANTEE OF "DUE
PROCESS."  (FN8)

                                       III. 

A SUMMARY OF THE EVIDENCE INTRODUCED AGAINST THE PETITIONERS AND THE
EVENTS OF THE TRIAL WILL MAKE IT APPARENT THAT THE APPLICATION OF THE
CALIFORNIA RULE IN THIS CASE WAS NOT AN UNREASONABLE ONE.  CALIFORNIA
COURTS HAVE NOT HESITATED TO DECLARE THAT COMMENT HAS CAUSED A
MISCARRIAGE OF JUSTICE WHEN THAT CONCLUSION HAS BEEN WARRANTED BY THE
CIRCUMSTANCES, SEE, E.G., PEOPLE V. KELLER, 234 CAL. APP. 2D 395, 44
CAL. RPTR.  432; PEOPLE V. SIGAL, 235 CAL. APP. 2D 449, 45 CAL. RPTR. 
481, BUT THE POSTURE OF THIS CASE MINIMIZED THE POSSIBLE IMPACT OF THE
COMMENT. 

PETITIONERS WERE TRIED FOR THE MURDER OF A NIGHT CLUB BARTENDER IN
THE COURSE OF A ROBBERY OF THE CLUB.  THE STATE ESTABLISHED THAT
PETITIONERS WERE THE LAST CUSTOMERS REMAINING IN THE CLUB ON THE NIGHT
OF THE MURDER.  THREE PEOPLE WITH DESCRIPTIONS MATCHING THOSE OF
CHAPMAN, TEALE, AND THE VICTIM WERE SEEN LEAVING THE CLUB TOGETHER. 
THE CLUB HAD BEEN RANSACKED AND ITS CONDITION INDICATED THAT THE VICTIM
HAD BEEN FORCED OUT OF IT.  HE WAS LATER SHOT FROM CLOSE RANGE WITH A
.22-CALIBER WEAPON AND LEFT BESIDE A COUNTRY ROAD.  IT WAS SHOWN THAT
CHAPMAN HAD PURCHASED A SIMILAR WEAPON FIVE DAYS BEFORE THE MURDER AND
THIS WEAPON WAS IN TEALE'S POSSESSION WHEN HE WAS ARRESTED.  BLOOD
MATCHING THE TYPE OF THE VICTIM WAS FOUND ON THE FLOORMAT OF THE
VEHICLE IN WHICH CHAPMAN AND TEALE HAD BEEN TRAVELING.  OTHER
SCIENTIFIC TESTIMONY ESTABLISHED THAT THE VICTIM HAD BEEN IN
PETITIONERS' CAR.  BLOOD (UNTYPABLE) WAS FOUND ON CHAPMAN'S CLOTHES,
AND BLOOD MATCHING THE VICTIM'S WAS FOUND ON HER SHOES.  SIMILAR
EVIDENCE CONNECTED TEALE WITH THE MURDER. 

AFTER HIS ARREST TEALE MADE ADMISSIONS, AMOUNTING ALMOST TO A FULL
CONFESSION, TO A FELLOW PRISONER AND THESE WERE INTRODUCED AGAINST
HIM.  THE JURY WAS CAUTIONED TO DISREGARD THEM AS AGAINST CHAPMAN. 
PETITIONERS PLEADED NOT GUILTY, BUT OFFERED NO DEFENSE ON THE MERITS. 
THE ONLY DEFENSE WITNESS WAS A DR. SHEUERMAN WHO WAS CALLED BY CHAPMAN
IN AN EFFORT TO ESTABLISH A DEFENSE OF LACK OF CAPACITY TO FORM THE
REQUISITE INTENT BECAUSE OF "DISASSOCIATIVE REACTION." 

THE PROSECUTOR'S COMMENT ON PETITIONERS' FAILURE TO EXPLAIN AWAY OR
CHALLENGE THE EVIDENCE PRESENTED AGAINST THEM WAS ADMITTEDLY
EXTENSIVE.  (FN9)  THE CALIFORNIA SUPREME COURT FOUND IT HARMLESS ERROR
FOR A NUMBER OF REASONS.  FIRST THE COURT NOTED THE CONVINCING AND
UNCHALLENGED EVIDENCE PRESENTED BY THE STATE.  IT NEXT OBSERVED THAT
THE JURORS WERE CERTAIN TO TAKE NOTICE OF PETITIONERS' SILENCE WHETHER
OR NOT THERE WAS COMMENT SINCE THE EVIDENCE ITSELF CRIED FOR AN
EXPLANATION.  I THINK THIS POINT CRUCIAL, SINCE IT SEEMS TO ME THAT
THIS COURT HAS CONFUSED THE IMPACT OF PETITIONERS' SILENCE ON THE JURY
WITH THE IMPACT OF THE PROSECUTION'S COMMENT UPON THAT SILENCE.  THE
ADDED IMPACT OF THAT COMMENT WOULD SEEM MARGINAL IN A CASE OF THIS TYPE
WHERE THE JURY MUST INEVITABLY LOOK TO PETITIONERS FOR AN EXPLANATION
OF THE INNUENDO OF THE REAL EVIDENCE AND IN TEALE'S CASE OF HIS
DAMAGING ADMISSIONS.  FINALLY THE CALIFORNIA SUPREME COURT NOTED THAT
CHAPMAN, AGAINST WHOM THE EVIDENCE WAS LESS STRONG, HAD KEYED HER
DEFENSE TO EVIDENCE OF HER MENTAL DEFECT, A SUBJECT UPON WHICH THE
COMMENT HAD NOT TOUCHED.  FROM THIS DISCRIMINATING ANALYSIS IT WAS
CONCLUDED THAT ANOTHER RESULT WAS NOT "REASONABLY PROBABLE" ABSENT THE
ERRONEOUS COMMENTS. 

I CANNOT SEE HOW THIS RESOLUTION CAN BE THOUGHT OTHER THAN A
REASONABLE, AND THEREFORE CONSTITUTIONAL, APPLICATION OF THE CALIFORNIA
HARMLESS-ERROR RULE. 

      IV.    WHEN WE CONSIDER HOW LITTLE IS EMPIRICALLY KNOWN ABOUT
THE WORKINGS OF A JURY, SEE KALVEN & ZEISEL, THE AMERICAN JURY, PASSIM,
IT SEEMS TO ME HIGHLY INAPPROPRIATE FOR THIS COURT TO PRESUME TO TAKE
UPON ITSELF THE POWER TO PASS DIRECTLY ON THE CORRECTNESS OF IMPACT
EVALUATIONS COMING FROM 50 DIFFERENT JURISDICTIONS.  JURIES MUST
INVARIABLY REACT DIFFERENTLY TO PARTICULAR ITEMS OF EVIDENCE BECAUSE OF
LOCAL PREDISPOSITIONS AND EXPERIENCE FACTORS.  THE STATE COURTS, MANNED
BY LOCAL JUDGES AWARE OF AND IN TOUCH WITH THE SPECIAL FACTORS
AFFECTING LOCAL CRIMINAL TRIALS, SEEM THE BEST, AND THE
CONSTITUTIONALLY REQUIRED, FINAL AUTHORITY FOR RULING ON THE EFFECT OF
THE ADMISSION OF INADMISSIBLE EVIDENCE IN STATE CRIMINAL PROCEEDINGS,
ABSENT THE APPLICATION OF A FUNDAMENTALLY UNFAIR RULE, OR ANY
UNREASONABLE APPLICATION OF A PROPER RULE MANIFESTING A PURPOSE TO
DEFEAT FEDERAL CONSTITUTIONAL RIGHTS.  ONCE IT APPEARS THAT NEITHER OF
THESE FACTORS IS PRESENT IN A STATE HARMLESS-CONSTITUTIONAL-ERROR
DECISION, FEDERAL JUDICIAL RESPONSIBILITY SHOULD BE AT AN END.  THIS
DECISION, HOWEVER, ENCOMPASSES MUCH MORE.  IT IMPOSES ON THIS COURT, IN
CASES COMING HERE DIRECTLY FROM STATE COURTS, AND ON THE LOWER FEDERAL
COURTS, IN CASES ARISING ON HABEAS CORPUS, THE DUTY OF DETERMINING FOR
THEMSELVES WHETHER A CONSTITUTIONAL ERROR WAS HARMLESS.  IN ALL BUT
INSUBSTANTIAL INSTANCES, THIS WILL ENTAIL A DE NOVO ASSESSMENT OF THE
ENTIRE STATE TRIAL RECORD. 

FOR ONE WHO BELIEVES THAT AMONG THE CONSTITUTIONAL VALUES WHICH
CONTRIBUTE TO THE PRESERVATION OF OUR FREE SOCIETY NONE RANKS HIGHER
THAN THE PRINCIPLES OF FEDERALISM, AND THAT THIS COURT'S RESPONSIBILITY
FOR KEEPING SUCH PRINCIPLES INTACT IS NO LESS THAN ITS RESPONSIBILITY
FOR MAINTAINING PARTICULAR CONSTITUTIONAL RIGHTS, THE DOCTRINE
ANNOUNCED TODAY IS A MOST DISTURBING ONE.  IT CUTS SHARPLY INTO THE
FINALITY OF STATE CRIMINAL PROCESSES; IT BIDS FAIR TO PLACE AN
UNNECESSARY SUBSTANTIAL BURDEN OF WORK ON THE FEDERAL COURTS; AND IT
OPENS THE DOOR TO FURTHER EXCURSIONS BY THE FEDERAL JUDICIARY INTO
STATE JUDICIAL DOMAINS.  I VENTURE TO HOPE THAT AS TIME GOES ON THIS
NEW DOCTRINE, EVEN IN ITS PRESENT MANIFESTATION, WILL BE FOUND TO HAVE
BEEN STRICTLY CONTAINED, STILL MORE THAT IT WILL NOT BE PUSHED TO ITS
LOGICAL EXTREMES. 

I RESPECTFULLY DISSENT. 

FN1  FOR MYSELF, I INTIMATE NO VIEW ON CONGRESSIONAL POWER WITH
RESPECT TO STATE COURTS IN THIS REGARD. 

FN2  CASES IN WHICH LOWER FEDERAL COURTS, ACTING UNDER THE AUTHORITY
OF THE FOURTEENTH AMENDMENT, AS EXPANDED BY THIS COURT'S DECISION IN
REYNOLDS V. SIMS, 377 U.S. 533, HAVE PROMULGATED THEIR OWN
REAPPORTIONMENT PLANS MAY SUPERFICIALLY BE THOUGHT TO SUPPORT SUCH A
POWER.  E.G., REYNOLDS V. STATE ELECTION BOARD, 233 F. SUPP. 323.  BUT
SUCH CASES ARE QUITE APART FROM THE PRESENT ONE BECAUSE THEY ARISE FROM
A STIUATION WHERE SOME POSITIVE CONSTITUTIONAL ACTION IS A NECESSITY
AND THUS REQUIRE THE EXERCISE OF SPECIAL EQUITY POWERS.  HERE THE
ORDINARY REMEDY OF STRIKING DOWN UNCONSTITUTIONAL HARMLESS-ERROR RULES
AND APPLICATIONS IS SUFFICIENT TO DEAL WITH ANY PROBLEM THAT MAY
ARISE.  THERE IS NO NECESSITY FOR A STATE TO HAVE A HARMLESS-ERROR RULE
AT ALL. 

FN3  THE COURT INDEED RECOGNIZES, AS DOES MY BROTHER STEWART IN HIS
CONCURRING OPINION, THAT ERRORS OF CONSTITUTIONAL DIMENSION CAN BE
HARMLESS, A PROPOSITION SUPPORTED BY AMPLE PRECEDENT.  SEE SNYDER V.
MASSACHUSETTS, 291 U.S. 97; MOTES V. UNITED STATES, 178 U.S. 458;
HAINES V. UNITED STATES, 188 F.2D 546; UNITED STATES V. DONNELLY, 179
F.2D 227.  PRESUMABLY ALL ERRORS IN THE FEDERAL COURTS WILL CONTINUE TO
BE EVALUATED UNDER THE SINGLE STANDARD OF 28 U.S.C. SEC. 2111 AS
INTERPRETED TODAY.   CERTAINLY THERE IS NOTHING IN THE SUBSTANTIVE
PROVISIONS OF THE BILL OF RIGHTS WHICH SUGGESTS ANY STANDARD FOR
ASSESSING THE IMPACT OF THEIR VIOLATION. 

FN4  SEE, E.G., PEOPLE V. CAHAN, 44 CAL. 2D 434, 282 P.2D 905; PEOPLE
V. DORADO, 62 CAL.  2D 338, 398 P.2D 361. 

FN5  IT IS CLEAR ENOUGH THAT THIS IS NOT THE RATIONALE THAT THE COURT
IS EMPLOYING.  THE COURT WOULD LEAVE CALIFORNIA FREE TO APPLY ITS
HARMLESS-ERROR RULE TO ERRORS OF STATE LAW AND MUST THUS CONSIDER THE
RULE ITSELF CONSISTENT WITH CONSTITUTIONAL DUE PROCESS.  THIS LEAVES
THE ANOMALOUS SITUATION WHERE THE IMPACT OF A PARTICULAR PIECE OF
EVIDENCE IS TO BE ASSESSED BY A DIFFERENT "CONSTITUTIONAL" STANDARD
DEPENDING ONLY ON WHETHER STATE LAW OR FEDERAL CONSTITUTIONAL LAW
BARRED ITS ADMITTANCE. 

FN6  FAHY V. CONNECTICUT, 375 U.S. 85, SHOULD NOT BE DEEMED
DISPOSITIVE ON SUCH A FAR-REACHING MATTER, WHICH WAS ENTIRELY PASSED
OVER IN THE COURT'S OPINION IN THAT CASE. 

FN7  SOME SPECIAL LIMITATIONS ON HARMLESS ERROR HAVE ALWAYS BEEN
RESPECTED BY THIS COURT AND SEEM TO ME ESSENTIAL TO THE FUNDAMENTAL
FAIRNESS GUARANTEED BY THE DUE PROCESS CLAUSES OF THE FIFTH AND
FOURTEENTH AMENDMENTS.  THESE LIMITATIONS STEM FROM WHAT I PERCEIVE AS
TWO DISTINCT CONSIDERATIONS.  THE FIRST IS A RECOGNITION THAT
PARTICULAR TYPES OF ERROR HAVE AN EFFECT WHICH IS SO DEVASTATING OR
INHERENTLY INDETERMINATE THAT AS A MATTER OF LAW THEY CANNOT REASONABLY
BE FOUND HARMLESS.  E.G., PAYNE V. ARKANSAS, 356 U.S. 560
(CONFESSIONS); SEE FAHY V. CONNECTICUT, SUPRA, AT 95 (DISSENTING
OPINION OF HARLAN, J.); CF. BOLLENBACH V. UNITED STATES, 326 U.S. 607
(INDEPENDENTLY SUFFICIENT EVIDENCE).  THE SECOND IS A RECOGNITION THAT
CERTAIN TYPES OF OFFICIAL MISBEHAVIOR REQUIRE REVERSAL SIMPLY BECAUSE
SOCIETY CANNOT TOLERATE GIVING FINAL EFFECT TO A JUDGMENT TAINTED WITH
SUCH INTENTIONAL MISCONDUCT.  E.G., BERGER V. UNITED STATES, 295 U.S.
78 (PROSECUTORIAL MISCONDUCT).  ALTHOUGH THEY HAVE NEVER BEEN VIEWED IN
THIS LIGHT, I WOULD SEE VIOLATIONS OF GIDEON V. WAINWRIGHT, 372 U.S.
335, AS FALLING IN THE FIRST CATEGORY, AND VIOLATIONS OF TUMEY V. OHIO,
273 U.S. 510, AS FALLING IN THE SECOND.  HOWEVER, AS I UNDERSTAND MY
BROTHER STEWART'S OPINION CONCURRING IN THE RESULT, HE WOULD READ ALL
SUCH LIMITATIONS INTO THE CONTENT OF THE DUE PROCESS CLAUSE AND LIMIT
THE APPLICATION OF HARMLESS-ERROR RULES WITH RESPECT TO CONSTITUTIONAL
ERRORS TO AN UNDEFINED CATEGORY OF INSTANCES.  I THINK IT PREFERABLE TO
RESOLVE THESE SPECIAL PROBLEMS FROM AN ANALYSIS OF THE NATURE OF THE
ERROR INVOLVED RATHER THAN BY AN ATTEMPT TO DISCOVER LIMITATIONS IN THE
POLICY UNDERLYING THE SUBSTANTIVE CONSTITUTIONAL PROVISIONS.  THE
LATTER COURSE SEEMS TO ME TO BLUR ANALYSIS AND LEAD TO DISTINCTION BY
FIAT AMONG EQUALLY SPECIFIC CONSTITUTIONAL GUARANTEES. 

FN8 THE RULE WAS UPHELD BY THE NINTH CIRCUIT IN SAMPSELL V.
CALIFORNIA, 191 F.2D 721, AGAINST AN ATTACK ON ITS CONSTITUTIONALITY. 

FN9  THE DECISION IN GRIFFIN V. CALIFORNIA, 380 U.S. 609, WAS NOT
ANNOUNCED UNTIL AFTER THE TRIAL OF THE CASE.  HENCE THE TRIAL WAS
CONDUCTED ACCORDING TO WHAT WAS, AT THE TIME, CONSTITUTIONAL CALIFORNIA
LAW.  NO IMPLICATION OF PROSECUTORIAL MISCONDUCT CAN BE DRAWN FROM
THESE CIRCUMSTANCES. 
..END :







COOPER V. CALIFORNIA 386 U.S. 58 


NO. 103.  ARGUED DECEMBER 8, 1966.  - DECIDED FEBRUARY 20, 1967.  - 234
CAL. APP. 2D 587 44 CAL. RPTR.  483, AFFIRMED. 


PETITIONER WAS CONVICTED OF A NARCOTICS VIOLATION IN A CALIFORNIA
STATE COURT PARTLY THROUGH EVIDENCE WHICH THE POLICE SEIZED IN A
WARRANTLESS SEARCH OF HIS CAR A WEEK AFTER HIS ARREST.  PENDING
FORFEITURE PROCEEDINGS THE CAR HAD BEEN IMPOUNDED "AS EVIDENCE"
PURSUANT TO A STATUTORY PROVISION FOR THE SEIZURE AND FORFEITURE OF
VEHICLES USED IN VIOLATION OF THE NARCOTICS LAWS.  THE STATE APPELLATE
COURT, IN A DECISION WHICH THE SUPREME COURT DECLINED TO REVIEW, HELD
THE SEARCH AND SEIZURE UNCONSTITUTIONAL UNDER PRESTON V. UNITED STATES,
376 U.S. 364, BUT HELD THE EVIDENTIARY ERROR HARMLESS UNDER THE STATE
CONSTITUTION'S HARMLESS-ERROR PROVISION.  HELD:  UNDER THE
CIRCUMSTANCES OF THIS CASE, THE POLICE DID NOT VIOLATE THE FOURTH
AMENDMENT BY MAKING A SEARCH, CLOSELY RELATED TO THE REASON PETITIONER
WAS ARRESTED, OF A CAR WHICH THEY VALIDLY HELD FOR USE AS EVIDENCE IN A
FORFEITURE PROCEEDING.  PRESTON, SUPRA, DISTINGUISHED.  PP. 59-62. 

COOPER V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED IN A CALIFORNIA STATE COURT OF SELLING
HEROIN TO A POLICE INFORMER.  THE CONVICTION RESTED IN PART ON THE
INTRODUCTION IN EVIDENCE OF A SMALL PIECE OF A BROWN PAPER SACK SEIZED
BY POLICE WITHOUT A WARRANT FROM THE GLOVE COMPARTMENT OF AN AUTOMOBILE
WHICH POLICE, UPON PETITIONER'S ARREST, HAD IMPOUNDED AND WERE HOLDING
IN A GARAGE.  THE SEARCH OCCURRED A WEEK AFTER THE ARREST OF
PETITIONER.  PETITIONER APPEALED HIS CONVICTION TO THE CALIFORNIA
DISTRICT COURT OF APPEAL WHICH, CONSIDERING ITSELF BOUND BY OUR HOLDING
AND OPINION IN PRESTON V. UNITED STATES, 376 U.S. 364, HELD THAT THE
SEARCH AND SEIZURE VIOLATED THE FOURTH AMENDMENT'S BAN OF UNREASONABLE
SEARCHES AND SEIZURES.  THAT COURT WENT ON, HOWEVER, TO DETERMINE THAT
THIS WAS HARMLESS ERROR UNDER ART. VI, SEC 4 1/2, OF CALIFORNIA'S
CONSTITUTION WHICH PROVIDES THAT JUDGMENTS SHOULD NOT BE SET ASIDE OR
REVERSED UNLESS THE COURT IS OF THE OPINION THAT THE ERROR "RESULTED IN
A MISCARRIAGE OF JUSTICE."  234 CAL. APP. 2D 587, 44 CAL. RPTR.  483. 
THE CALIFORNIA SUPREME COURT DECLINED TO HEAR THE CASE.  WE GRANTED
CERTIORARI ALONG WITH CHAPMAN V. CALIFORNIA, ANTE, P. 18, TO CONSIDER
WHETHER THE CALIFORNIA HARMLESS-ERROR CONSTITUTIONAL PROVISION COULD BE
USED IN THIS WAY TO IGNORE THE ALLEGED FEDERAL CONSTITUTIONAL ERROR. 
384 U.S. 904.  WE HAVE TODAY PASSED UPON THE QUESTION IN CHAPMAN, BUT
DO NOT REACH IT IN THIS CASE BECAUSE WE ARE SATISFIED THAT THE LOWER
COURT ERRONEOUSLY DECIDED THAT OUR PRESTON CASE REQUIRED THAT THIS
SEARCH BE HELD AN UNREASONABLE ONE WITHIN THE MEANING OF THE FOURTH
AMENDMENT. 

WE MADE IT CLEAR IN PRESTON THAT WHETHER A SEARCH AND SEIZURE IS
UNREASONABLE WITHIN THE MEANING OF THE FOURTH AMENDMENT DEPENDS UPON
THE FACTS AND CIRCUMSTANCES OF EACH CASE AND POINTED OUT, IN
PARTICULAR, THAT SEARCHES OF CARS THAT ARE CONSTANTLY MOVABLE MAY MAKE
THE SEARCH OF A CAR WITHOUT A WARRANT A REASONABLE ONE ALTHOUGH THE
RESULT MIGHT BE THE OPPOSITE IN A SEARCH OF A HOME, A STORE, OR OTHER
FIXED PIECE OF PROPERTY.  376 U.S., AT 366-367.  IN PRESTON THE SEARCH
WAS SOUGHT TO BE JUSTIFIED PRIMARILY ON THE GROUND THAT IT WAS
INCIDENTAL TO AND PART OF A LAWFUL ARREST.  THERE WE SAID THAT "ONCE AN
ACCUSED IS UNDER ARREST AND IN CUSTODY, THEN A SEARCH MADE AT ANOTHER
PLACE, WITHOUT A WARRANT, IS SIMPLY NOT INCIDENT TO THE ARREST."  ID.,
AT 367.  IN THE PRESTON CASE, IT WAS ALTERNATIVELY ARGUED THAT THE
WARRANTLESS SEARCH, AFTER THE ARREST WAS OVER AND WHILE PRESTON'S CAR
WAS BEING HELD FOR HIM BY THE POLICE, WAS JUSTIFIED BECAUSE THE
OFFICERS HAD PROBABLE CAUSE TO BELIEVE THE CAR WAS STOLEN.  BUT THE
POLICE ARRESTED PRESTON FOR VAGRANCY, NOT THEFT, AND NO CLAIM WAS MADE
THAT THE POLICE HAD AUTHORITY TO HOLD HIS CAR ON THAT CHARGE.  THE
SEARCH WAS THEREFORE TO BE TREATED AS THOUGH HIS CAR WAS IN HIS OWN OR
HIS AGENT'S POSSESSION, SAFE FROM INTRUSIONS BY THE POLICE OR ANYONE
ELSE.  THE SITUATION INVOLVING PETITIONER'S CAR IS QUITE DIFFERENT. 

HERE, CALIFORNIA'S ATTORNEY GENERAL CONCEDES THAT THE SEARCH WAS NOT
INCIDENT TO AN ARREST.  IT IS ARGUED, HOWEVER, THAT THE SEARCH WAS
REASONABLE ON OTHER GROUNDS.  SECTION 11611 OF THE CALIFORNIA HEALTH &
SAFETY CODE PROVIDES THAT ANY OFFICER MAKING AN ARREST FOR A NARCOTICS
VIOLATION SHALL SEIZE AND DELIVER TO THE STATE DIVISION OF NARCOTIC
ENFORCEMENT ANY VEHICLE USED TO STORE, CONCEAL, TRANSPORT, SELL OR
FACILITATE THE POSSESSION OF NARCOTICS, SUCH VEHICLE "TO BE HELD AS
EVIDENCE UNTIL A FORFEITURE HAS BEEN DECLARED OR A RELEASE ORDERED." 
(FN1)  PETITIONER'S VEHICLE, WHICH EVIDENCE SHOWED HAD BEEN USED TO
CARRY ON HIS NARCOTICS POSSESSION AND TRANSPORTATION, WAS IMPOUNDED BY
THE OFFICERS AND THEIR DUTY REQUIRED THAT IT BE KEPT "AS EVIDENCE"
UNTIL FORFEITURE PROCEEDINGS WERE CARRIED TO A CONCLUSION.  THE LOWER
COURT CONCLUDED, AS A MATTER OF STATE LAW, THAT THE STATE FORFEITURE
STATUTE DID NOT BY "CLEAR AND EXPRESS LANGUAGE" AUTHORIZE THE OFFICERS
TO SEARCH PETITIONER'S CAR.  234 CAL. APP. 2D, AT 598, 44 CAL. RPTR.,
AT 491.  BUT THE QUESTION HERE IS NOT WHETHER THE SEARCH WAS AUTHORIZED
BY STATE LAW.  THE QUESTION IS RATHER WHETHER THE SEARCH WAS REASONABLE
UNDER THE FOURTH AMENDMENT.  JUST AS A SEARCH AUTHORIZED BY STATE LAW
MAY BE AN UNREASONABLE ONE UNDER THAT AMENDMENT, SO MAY A SEARCH NOT
EXPRESSLY AUTHORIZED BY STATE LAW BE JUSTIFIED AS A CONSTITUTIONALLY
REASONABLE ONE.  WHILE IT IS TRUE, AS THE LOWER COURT SAID, THAT
"LAWFUL CUSTODY OF AN AUTOMOBILE DOES NOT OF ITSELF DISPENSE WITH
CONSTITUTIONAL REQUIREMENTS OF SEARCHES THEREAFTER MADE OF IT," IBID.,
THE REASON FOR AND NATURE OF THE CUSTODY MAY CONSTITUTIONALLY JUSTIFY
THE SEARCH.  PRESTON WAS ARRESTED FOR VAGRANCY.  AN ARRESTING OFFICER
TOOK HIS CAR TO THE STATION RATHER THAN JUST LEAVING IT ON THE STREET. 
IT WAS NOT SUGGESTED THAT THIS WAS DONE OTHER THAN FOR PRESTON'S
CONVENIENCE OR THAT THE POLICE HAD ANY RIGHT TO IMPOUND THE CAR AND
KEEP IT FROM PRESTON OR WHOMEVER HE MIGHT SEND FOR IT.  THE FACT THAT
THE POLICE HAD CUSTODY OF PRESTON'S CAR WAS TOTALLY UNRELATED TO THE
VAGRANCY CHARGE FOR WHICH THEY ARRESTED HIM.  SO WAS THEIR SUBSEQUENT
SEARCH OF THE CAR.  THIS CASE IS NOT PRESTON, NOR IS IT CONTROLLED BY
IT.  HERE THE OFFICERS SEIZED PETITIONER'S CAR BECAUSE THEY WERE
REQUIRED TO DO SO BY STATE LAW.  THEY SEIZED IT BECAUSE OF THE CRIME
FOR WHICH THEY ARRESTED PETITIONER.  THEY SEIZED IT TO IMPOUND IT AND
THEY HAD TO KEEP IT UNTIL FORFEITURE PROCEEDINGS WERE CONCLUDED.  THEIR
SUBSEQUENT SEARCH OF THE CAR - WHETHER THE STATE HAD "LEGAL TITLE" TO
IT OR NOT - WAS CLOSELY RELATED TO THE REASON PETITIONER WAS ARRESTED,
THE REASON HIS CAR HAD BEEN IMPOUNDED, AND THE REASON IT WAS BEING
RETAINED.  THE FORFEITURE OF PETITIONER'S CAR DID NOT TAKE PLACE UNTIL
OVER FOUR MONTHS AFTER IT WAS LAWFULLY SEIZED.  IT WOULD BE
UNREASONABLE TO HOLD THAT THE POLICE, HAVING TO RETAIN THE CAR IN THEIR
CUSTODY FOR SUCH A LENGTH OF TIME, HAD NO RIGHT, EVEN FOR THEIR OWN
PROTECTION, TO SEARCH IT.  IT IS NO ANSWER TO SAY THAT THE POLICE COULD
HAVE OBTAINED A SEARCH WARRANT, FOR "THE RELEVANT TEST IS NOT WHETHER
IT IS REASONABLE TO PROCURE A SEARCH WARRANT, BUT WHETHER THE SEARCH
WAS REASONABLE."  UNITED STATES V. RABINOWITZ, 339 U.S. 56, 66.  UNDER
THE CIRCUMSTANCES OF THIS CASE, WE CANNOT HOLD UNREASONABLE UNDER THE
FOURTH AMENDMENT THE EXAMINATION OR SEARCH OF A CAR VALIDLY HELD BY
OFFICERS FOR USE AS EVIDENCE IN A FORFEITURE PROCEEDING. 

OUR HOLDING, OF COURSE, DOES NOT AFFECT THE STATE'S POWER TO IMPOSE
HIGHER STANDARDS ON SEARCHES AND SEIZURES THAN REQUIRED BY THE FEDERAL
CONSTITUTION IF IT CHOOSES TO DO SO.  AND WHEN SUCH STATE STANDARDS
ALONE HAVE BEEN VIOLATED, THE STATE IS FREE, WITHOUT REVIEW BY US, TO
APPLY ITS OWN STATE HARMLESS-ERROR RULE TO SUCH ERRORS OF STATE LAW. 
THERE BEING NO FEDERAL CONSTITUTIONAL ERROR HERE, THERE IS NO NEED FOR
US TO DETERMINE WHETHER THE LOWER COURT PROPERLY APPLIED ITS STATE
HARMLESS-ERROR RULE.  (FN2)  AFFIRMED. 

FN1  CAL. HEALTH & SAFETY CODE SEC 11610 PROVIDES: 

"THE INTEREST OF ANY REGISTERED OWNER OF A VEHICLE USED TO UNLAWFULLY
TRANSPORT OR FACILITATE THE UNLAWFUL TRANSPORTATION OF ANY NARCOTIC, OR
IN WHICH ANY NARCOTIC IS UNLAWFULLY KEPT, DEPOSITED, OR CONCEALED OR
WHICH IS USED TO FACILITATE THE UNLAWFUL KEEPING, DEPOSITING OR
CONCEALMENT OF ANY NARCOTIC, OR IN WHICH ANY NARCOTIC IS UNLAWFULLY
POSSESSED BY AN OCCUPANT THEREOF OR WHICH IS USED TO FACILITATE THE
UNLAWFUL POSSESSION OF ANY NARCOTIC BY AN OCCUPANT THEREOF, SHALL BE
FORFEITED TO THE STATE." 

FN2  PETITIONER ALSO PRESENTS THE CONTENTION HERE THAT HE WAS
UNCONSTITUTIONALLY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST
HIM, BECAUSE THE STATE DID NOT PRODUCE THE INFORMANT TO TESTIFY AGAINST
HIM.  THIS CONTENTION WE CONSIDER ABSOLUTELY DEVOID OF MERIT. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BRENNAN
AND MR. JUSTICE FORTAS CONCUR, DISSENTING. 

WHEN PETITIONER WAS ARRESTED, HIS AUTO WAS SEIZED BY OFFICERS,
PURSUANT TO THE CALIFORNIA HEALTH & SAFETY CODE, SEC 11611.  THAT
THE NARCOTICS LAWS TO SEIZE A "VEHICLE USED TO UNLAWFULLY TRANSPORT ANY
NARCOTIC OR TO FACILITATE THE UNLAWFUL TRANSPORTATION OF ANY NARCOTIC,
OR IN WHICH ANY NARCOTIC IS UNLAWFULLY KEPT," AND DIRECTS THE OFFICER
TO DELIVER THE VEHICLE TO THE DIVISION OF NARCOTIC ENFORCEMENT "TO BE
HELD AS EVIDENCE UNTIL A FORFEITURE HAS BEEN DECLARED OR A RELEASE
ORDERED."  ABOUT A WEEK AFTER PETITIONER'S ARREST, A STATE AGENT
SEARCHED THE CAR, WHICH WAS STORED AT A TOWING SERVICE, AND DISCOVERED
A PIECE OF BROWN PAPER WHICH APPEARED TO HAVE BEEN TORN FROM A GROCERY
BAG.  THIS PIECE OF PAPER WAS INTRODUCED AT THE TRIAL, ALONG WITH TWO
BUNDLES OF HEROIN, WHICH PETITIONER ALLEGEDLY SOLD AN INFORMER, AND THE
BROWN PAPER IN WHICH THE HEROIN HAD BEEN WRAPPED.  (FN1)  PETITIONER
WAS INDICTED AND CONVICTED OF SELLING HEROIN.  A JUDGMENT OF FORFEITURE
OF PETITIONER'S CAR WAS ENTERED THE DAY AFTER THE TERMINATION OF HIS
TRIAL. 

THE CALIFORNIA DISTRICT COURT OF APPEAL HELD THAT THE PIECE OF PAPER
BAG WAS THE PRODUCT OF AN ILLEGAL SEARCH, 234 CAL. APP. 2D 587, 44 CAL.
RPTR.  483.  FIRST, THE STATE COURT HELD THAT THE STATE COULD NOT RELY
ON THE SUBSEQUENT FORFEITURE TO JUSTIFY THE SEARCH.  IT REALISTICALLY
NOTED THAT THE STATE'S TITLE COULD NOT RELATE BACK TO THE TIME OF THE
SEIZURE UNTIL AFTER A JUDICIAL DECLARATION OF FORFEITURE.  SINCE THE
FORFEITURE JUDGMENT WAS NOT ENTERED UNTIL AFTER PETITIONER'S TRIAL, THE
STATE COULD NOT RELY ON IT TO JUSTIFY THE SEARCH.  ID., AT 596-597, 44
CAL. RPTR., AT 489-490.  SECOND, THE COURT HELD THAT ALTHOUGH THE
AUTOMOBILE WAS IN THE LAWFUL CUSTODY OF THE OFFICERS AT THE TIME OF THE
SEARCH, SEC 11611 OF THE HEALTH & SAFETY CODE DID NOT AUTHORIZE THE
OFFICERS TO SEARCH THE CAR.  ID., AT 597, 44 CAL. RPTR., AT 490.  SINCE
THE SEARCH WAS NOT PURSUANT TO A WARRANT, AND SINCE IT WAS NOT
INCIDENTAL TO PETITIONER'S ARREST, IT WAS ILLEGAL. 

HENCE THE FACT THAT THE CAR WAS BEING HELD "AS EVIDENCE" DID NOT AS A
MATTER OF STATE LAW GIVE THE OFFICERS MORE DOMINION OVER IT THAN THE
OFFICERS IN PRESTON V. UNITED STATES, 376 U.S. 364, HAD OVER THE CAR IN
THEIR CUSTODY. 

IN PRESTON, PETITIONER AND OTHERS WERE ARRESTED FOR VAGRANCY AFTER
THEY FAILED TO GIVE AN ACCEPTABLE EXPLANATION OF THEIR PRESENCE IN A
PARKED CAR LATE AT NIGHT.  THEY WERE TAKEN TO THE POLICE STATION, AND
THE CAR WAS TAKEN FIRST TO THE STATION AND THEN TO A GARAGE.  AFTER THE
MEN WERE BOOKED, POLICE OFFICERS WENT TO THE GARAGE, SEARCHED THE CAR
WITHOUT A WARRANT, AND FOUND EVIDENCE INCRIMINATING PETITIONER AND THE
OTHERS OF CONSPIRACY TO ROB A FEDERALLY INSURED BANK. 

IN THE INSTANT CASE PETITIONER WAS ARRESTED, HIS CAR TAKEN TO A
GARAGE AND SEARCHED A WEEK AFTER HIS ARREST, LIKEWISE WITHOUT A
WARRANT.  AS IN PRESTON, THE SEARCH CANNOT BE JUSTIFIED AS INCIDENTAL
TO A LAWFUL ARREST.  NOR CAN THIS CASE BE DISTINGUISHED FROM PRESTON ON
THE GROUND THAT ONE CAR WAS LAWFULLY IN POLICE CUSTODY AND THE OTHER
NOT.  IN PRESTON, THE FACT THAT THE CAR WAS IN LAWFUL POLICE CUSTODY
DID NOT LEGALIZE THE SEARCH WITHOUT A WARRANT.  SINCE THE CALIFORNIA
COURT HELD THAT THE HEALTH & SAFETY CODE DID NOT AUTHORIZE A SEARCH OF
A CAR IMPOUNDED UNDER ITS PROVISIONS, THE CASE IS ON ALL FOURS WITH
PRESTON SO FAR AS POLICE CUSTODY IS CONCERNED.  IF CUSTODY OF THE CAR
IS RELEVANT AT ALL, IT MILITATES AGAINST THE REASONABLENESS OF THE
SEARCH.  AS THE COURT SAID IN PRESTON: 

"SINCE THE MEN WERE UNDER ARREST AT THE POLICE STATION AND THE CAR
WAS IN POLICE CUSTODY AT A GARAGE, THERE WAS NO DANGER THAT THE CAR
WOULD BE MOVED OUT OF THE LOCALITY OR JURISDICTION."  376 U.S., AT
368.  MOREOVER, THE CLAIM THAT THE SEARCH WAS NOT ILLEGAL BECAUSE THE
CAR HAD BEEN FORFEITED TO THE STATE IS FORECLOSED BY THE STATE COURT'S
HOLDING THAT, UNDER THE CIRCUMSTANCES, THE FORFEITURE COULD NOT RELATE
BACK TO THE DATE OF THE SEIZURE.  THE STATE COURT'S INTERPRETATION OF
ITS OWN STATUTE WILL NOT BE UPSET BY THIS COURT.  GUARANTY TRUST CO. V.
BLODGETT, 287 U.S. 509. 

TO REPEAT, THIS CASE IS ON ALL FOURS WITH PRESTON.  FOR IN EACH THE
SEARCH WAS OF A CAR "VALIDLY" HELD BY OFFICERS, TO USE THE COURT'S
EXPRESSION.  PRESTON, OF COURSE, WAS A FEDERAL CASE, WHILE THIS IS A
STATE CASE.  BUT THE FOURTH AMENDMENT WITH ALL ITS SANCTIONS APPLIES TO
THE STATES AS WELL AS TO THE FEDERAL GOVERNMENT.  MAPP V. OHIO, 367
U.S. 643. 

I SEE ONLY TWO WAYS TO EXPLAIN THE COURT'S OPINION.  ONE IS THAT IT
OVERRULES PRESTON SUB SILENTIO.  THERE ARE THOSE WHO DO NOT LIKE
PRESTON.  I THINK, HOWEVER, IT STATES A HEALTHY RULE, PROTECTING THE
ZONE OF PRIVACY OF THE INDIVIDUAL AS PRESCRIBED BY THE FOURTH
AMENDMENT.  THESE DAYS POLICE OFTEN TAKE POSSESSION OF CARS, TOWING
THEM AWAY WHEN IMPROPERLY PARKED.  THOSE CARS ARE "VALIDLY" HELD BY THE
POLICE.  YET IF THEY CAN BE SEARCHED WITHOUT A WARRANT, THE PRECINCTS
OF THE INDIVIDUAL ARE INVADED AND THE BARRIERS TO PRIVACY BREACHED. 
UNLESS THE SEARCH IS INCIDENT TO AN ARREST, I WOULD INSIST THAT THE
POLICE OBTAIN A WARRANT TO SEARCH A MAN'S CAR JUST AS THEY MUST DO WHEN
THEY SEARCH HIS HOME.    IF THE PRESENT DECISION DOES NOT OVERRULE
PRESTON, IT CAN PERHAPS BE RATIONALIZED ON ONE OTHER GROUND.  THERE IS
THE VIEW THAT WHEN THE BILL OF RIGHTS IS APPLIED TO THE STATES BY
REASON OF THE FOURTEENTH AMENDMENT, A WATERED-DOWN VERSION IS USED.  IN
THAT VIEW "DUE PROCESS" QUALIFIES ALL PROVISIONS OF THE BILL OF
RIGHTS.  TODAY'S DECISION IS PERHAPS EXPLICABLE IN THOSE TERMS.  BUT I
ALSO REJECT THAT VIEW.  "UNREASONABLE SEARCHES AND SEIZURES" AS USED IN
THE FOURTH AMENDMENT, "SELF-INCRIMINATION" AS USED WITH REFERENCE TO
THE FIFTH, "FREEDOM OF SPEECH" AS USED IN THE FIRST, AND THE LIKE, MEAN
THE SAME IN A STATE AS IN A FEDERAL CASE.  (FN2) 

FN1  ABOUT FOUR MONTHS AFTER THE ARREST, ANOTHER AGENT SEARCHED THE
CAR AND FOUND A MARIJUANA SEED, WHICH WAS INTRODUCED AT TRIAL.  THERE
IS NO OBJECTION TO THIS EVIDENCE SINCE THERE WAS NO JURY AND THE TRIAL
JUDGE INDICATED THAT THE MARIJUANA SEED WAS IRRELEVANT TO THE CHARGE
FOR WHICH PETITIONER WAS BEING TRIED. 

FN2  THAT VIEW WAS EXPRESSLY APPROVED BY THE COURT IN MALLOY V.
HOGAN, 378 U.S. 1, 10-11. 
..END :















GILES V. MARYLAND 386 U.S. 66 


NO. 27.  ARGUED OCTOBER 12, 1966.  - DECIDED FEBRUARY 20, 1967.  - 239
MD. 458, 212 A.2D 101, VACATED AND REMANDED. 


PETITIONERS, WHO WERE CONVICTED OF RAPE AND GIVEN DEATH SENTENCES
WHICH WERE LATER COMMUTED TO LIFE IMPRISONMENT, BROUGHT THIS PROCEEDING
UNDER MARYLAND'S POST-CONVICTION PROCEDURE ACT ALLEGING THAT THEY WERE
DENIED DUE PROCESS OF LAW BY THE PROSECUTION'S SUPPRESSION OF EVIDENCE
FAVORABLE TO THEM AND BY KNOWING USE OF PERJURED TESTIMONY.  THE
EVIDENCE ALLEGEDLY SUPPRESSED CONCERNED (1) A PROCEEDING IN PRINCE
GEORGE'S COUNTY JUVENILE COURT PENDING PRIOR TO THE ALLEGED RAPE, IN
WHICH A CASEWORKER RECOMMENDED PROBATION FOR THE COMPLAINING WITNESS
BECAUSE SHE WAS BEYOND PARENTAL CONTROL, (2) AN OCCURRENCE FIVE WEEKS
AFTER THE ALLEGED RAPE, IN WHICH THE GIRL HAD SEXUAL RELATIONS WITH TWO
MEN AT A PARTY AND THAT NIGHT TOOK AN OVERDOSE OF PILLS RESULTING IN
HOSPITALIZATION IN A PSYCHIATRIC WARD FOR NINE DAYS AS AN ATTEMPTED
SUICIDE, AND (3) A HEARING IN THE MONTGOMERY COUNTY JUVENILE COURT ON
THE DAY OF HER RELEASE FROM THE PSYCHIATRIC WARD WHICH RESULTED IN HER
COMMITMENT TO A SCHOOL FOR GIRLS.  THE MONTGOMERY COUNTY CIRCUIT COURT
ORDERED A NEW TRIAL, HOLDING THAT THE PROOF DID ESTABLISH SUPPRESSION
OF EVIDENCE WHICH, ALTHOUGH NOT IN BAD FAITH, CONSTITUTED A DENIAL OF
DUE PROCESS.  THE MARYLAND COURT OF APPEALS REVERSED, HOLDING THAT "FOR
THE NONDISCLOSURE OF EVIDENCE TO AMOUNT TO A DENIAL OF DUE PROCESS IT
MUST BE SUCH AS IS MATERIAL AND CAPABLE OF CLEARING OR TENDING TO CLEAR
THE ACCUSED OF GUILT OR OF SUBSTANTIALLY AFFECTING THE PUNISHMENT TO BE
IMPOSED IN ADDITION TO BEING SUCH AS COULD REASONABLY BE CONSIDERED
ADMISSIBLE AND USEFUL TO THE DEFENSE."  HELD: THE JUDGMENT IS VACATED
AND THE CASE IS REMANDED TO THE MARYLAND COURT OF APPEALS FOR FURTHER
PROCEEDINGS.  PP. 67-102. 

MR. JUSTICE BRENNAN, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS, WITHOUT REACHING THE QUESTION OF THE EXTENT OF THE
PROSECUTION'S DUTY OF DISCLOSURE, CONCLUDED THAT EVIDENCE OF TWO POLICE
REPORTS WHICH WERE SUBMITTED TO THIS COURT BUT WERE NOT CONSIDERED BY
THE COURTS BELOW IN THE POST-CONVICTION PROCEEDING JUSTIFIES A REMAND
TO THE COURT OF APPEALS FOR IT TO CONSIDER WHETHER AN INQUIRY SHOULD BE
ORDERED TO DETERMINE THE APPLICABILITY OF THE RULE OF NAPUE V.
ILLINOIS, 360 U.S. 264, WHERE IT WAS HELD THAT A CONVICTION MUST FALL
WHEN THE PROSECUTION, "ALTHOUGH NOT SOLICITNG FALSE EVIDENCE, ALLOWS IT
TO GO UNCORRECTED WHEN IT APPEARS," EVEN THOUGH THE TESTIMONY MAY BE
RELEVANT ONLY TO THE CREDIBILITY OF A WITNESS.  PP. 73-82. 

MR. JUSTICE WHITE CONCLUDED THAT THE CASE SHOULD BE REMANDED TO THE
COURT OF APPEALS TO OBTAIN ITS VIEWS AS TO WHETHER PETITIONERS HAVE
BEEN AFFORDED A FULL AND FAIR HEARING ON THE ISSUE OF SUPPRESSION OF
EVIDENCE CONCERNING THE MENTAL CONDITION OF THE COMPLAINING WITNESS AND
THE INTERRELATED ISSUES OF HER CONSENT AND CREDIBILITY.  PP. 82-96. 

MR. JUSTICE FORTAS CONCLUDED THAT THE JUDGMENT SHOULD BE VACATED
BECAUSE THE STATE DID NOT CARRY OUT ITS OBLIGATION TO DISCLOSE ALL
INFORMATION WHICH WAS SPECIFIC AND CONCRETE, WHICH WAS NOT MERELY
CUMMULATIVE OR EMBELLISHING, AND WHICH MIGHT HAVE EXONERATED THE
DEFENDANTS OR BEEN OF MATERIAL IMPORTANCE TO THE DEFENSE.  PP. 96-102. 

GILES ET AL. V. MARYLAND. 

CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS JOIN. 

IN DECEMBER 1961, PETITIONERS, WHO ARE BROTHERS, WERE CONVICTED OF
RAPE OF A 16-YEAR-OLD GIRL AFTER TRIAL BY JURY IN THE CIRCUIT COURT FOR
MONTGOMERY COUNTY, MARYLAND.  IN MAY 1964, PETITIONERS BROUGHT THIS
PROCEEDING UNDER MARYLAND'S POST-CONVICTION PROCEDURE ACT, MD.  ANN.
CODE ART. 27, SEC 645A (1966 SUPP.).  (FN1)  THEIR PETITION ALLEGED
THAT THE PROSECUTION DENIED THEM DUE PROCESS OF LAW IN VIOLATION OF THE
FOURTEENTH AMENDMENT BY SUPPRESSING EVIDENCE FAVORABLE TO THEM, AND BY
THE KNOWING USE OF PERJURED TESTIMONY AGAINST THEM.  AN EVIDENTIARY
HEARING WAS HAD BEFORE MONTGOMERY CIRCUIT JUDGE MOORMAN WHO, IN AN
UNREPORTED OPINION, RULED THAT THE PROOFS DID NOT SUSTAIN THE
ALLEGATION OF BAD FAITH OR KNOWING USE OF PERJURED TESTIMONY BY THE
PROSECUTION, BUT DID ESTABLISH THE SUPPRESSION OF EVIDENCE WHICH,
ALTHOUGH NOT IN BAD FAITH, CONSTITUTED A DENIAL OF DUE PROCESS.  HE
THEREFORE ORDERED A NEW TRIAL.  THE COURT OF APPEALS OF MARYLAND,
SITTING EN BANC, REVERSED, TWO JUDGES DISSENTING.  STATE V. GILES, 239
MD. 458, 212 A.2D 101.  WE GRANTED CERTIORARI.  383 U.S. 941.  WE WOULD
VACATE THE JUDGMENT OF THE MARYLAND COURT OF APPEALS AND REMAND TO THAT
COURT FOR FURTHER PROCEEDINGS. 

THE RAPE ALLEGEDLY OCCURRED ABOUT MIDNIGHT, JULY 10, 1961, NEAR ROCKY
GORGE, A SWIMMING AND FISHING SPOT ON THE PATUXENT RIVER, IN A
SECLUDED, WOODED AREA OF MONTGOMERY COUNTY.  THE PETITIONERS SWAM AND
FISHED THERE FROM EARLY EVENING WITH JOSEPH JOHNSON  (FN2)  AND JOHN
BOWIE.  THE PROSECUTRIX CAME THERE BY AUTOMOBILE SHORTLY BEFORE
MIDNIGHT WITH HER DATE, STEWART FOSTER, AND TWO OTHER YOUNG MEN.  THEIR
CAR RAN OUT OF GASOLINE NEAR BOWIE'S PARKED CAR.  THE GIRL AND FOSTER
REMAINED IN THE CAR WHILE THE OTHER YOUNG MEN WENT FOR GASOLINE. 

THE GIRL AND FOSTER WERE THE STATE'S PRINCIPAL WITNESSES.  THEY
TESTIFIED THAT THEY HAD BEEN SITTING IN THE BACK SEAT OF THE CAR FOR
SOME 15 MINUTES AFTER THE TWO YOUNG MEN LEFT WHEN A NOISE NEAR BOWIE'S
CAR ATTRACTED THEIR ATTENTION.  THEY SAW PETITIONERS AND THEIR
COMPANIONS LOADING SOMETHING INTO BOWIE'S CAR.  BOWIE DROVE AWAY AND
PETITIONERS AND JOHNSON APPROACHED THE STRANDED CAR.  FOSTER ROLLED UP
THE WINDOWS AND LOCKED THE DOORS.  THE GIRL AND FOSTER TESTIFIED THAT
THE THREE DEMANDED HIS MONEY AND HIS GIRL AND SMASHED THE CAR WINDOWS
WITH ROCKS TO OPEN THE CAR DOORS.  FOSTER UNLOCKED THE DOOR ON HIS SIDE
AND TOLD THE GIRL TO GET OUT HER SIDE AND RUN WHILE HE HELD OFF THE
THREE.  FOSTER WAS KNOCKED UNCONSCIOUS WHEN HE LEFT THE CAR.  THE GIRL
RAN INTO THE WOODS FOLLOWED BY JOHN GILES WHO CAUGHT UP WITH HER WHEN
SHE TRIPPED AND FELL.  PETITIONER JAMES GILES AND JOHNSON JOINED THEM A
FEW MINUTES LATER.  SHE TESTIFIED THAT, WHEN ONE OF THE TRIO ATTEMPTED
TO REMOVE HER CLOTHES, SHE DISROBED HERSELF BELOW THE WAIST AND
SUBMITTED TO ALL THREE YOUTHS WITHOUT RESISTANCE BECAUSE OF FEAR. 

BOTH PETITIONERS TESTIFIED IN THEIR OWN DEFENSE.  THEIR VERSION OF
THE EVENTS WAS THAT THE THREE YOUNG MEN APPROACHED THE CAR AND ASKED
FOSTER FOR A CIGARETTE, THAT FOSTER RESPONDED WITH EPITHETS AND REACHED
DOWN AS IF TO PICK UP A GUN OR OTHER WEAPON, AND THAT THEY BROKE THE
WINDOWS TO PREVENT HIS GETTING IT.  THEY SAID THAT THEY DID NOT KNOW IT
WAS A GIRL WHO FLED INTO THE WOODS.  PETITIONER JOHN GILES TESTIFIED
THAT WHEN HE CAUGHT UP WITH HER, SHE OFFERED TO SUBMIT TO HIM IF HE
WOULD HELP HER ESCAPE FROM THE OTHERS BUT THAT HE DECLINED.  PETITIONER
JAMES GILES TESTIFIED THAT WHEN HE AND JOHNSON JOINED THE COUPLE, THE
GIRL TOLD THE THREE THAT SHE HAD HAD RELATIONS WITH 16 OR 17 BOYS THAT
WEEK AND TWO OR THREE MORE WOULDN'T MAKE ANY DIFFERENCE, THAT SHE
DISROBED HERSELF AND INVITED ALL THREE OF THEM TO HAVE RELATIONS WITH
HER, AND THAT HE AND JOHNSON, BUT NOT PETITIONER JOHN GILES, HAD
RELATIONS WITH HER.  BOTH PETITIONERS TESTIFIED THAT THE GIRL SAID THAT
IF THEY WERE CAUGHT IN THE WOODS SHE WOULD HAVE TO SAY SHE HAD BEEN
RAPED BECAUSE "SHE WAS ON A YEAR'S PROBATION" AND "WAS IN TROUBLE." 

THE CREDIBILITY OF THE WITNESSES WAS THUS IMPORTANT TO THE OUTCOME OF
THE CASE.  THE COURT OF APPEALS RECOGNIZED THIS IN AFFIRMING THE
CONVICTIONS ON DIRECT REVIEW:  "THERE WAS SOME EVIDENCE TENDING TO
INDICATE CONSENT ON THE PART OF THE PROSECUTING WITNESS, WHICH, IF
BELIEVED BY THE TRIER OF FACTS, WOULD HAVE BEEN A COMPLETE DEFENSE TO
THE CHARGE OF RAPE."  GILES V. STATE, 229 MD., AT 381, 183 A.2D AT
364.  (FN3) CREDIBILITY WAS ALSO CRITICAL ON THE ISSUE WHETHER, IN ANY
EVENT, PETITIONER JOHN GILES HAD RELATIONS WITH HER, AS SHE TESTIFIED,
OR HAD NOT, AS THE PETITIONERS TESTIFIED. 

THE EVIDENCE ALLEGEDLY SUPPRESSED CONSISTED FIRST, OF THE FACT THAT
IN A PROCEEDING PENDING ON JUNE 20 IN THE JUVENILE COURT FOR PRINCE
GEORGE'S COUNTY, A CASEWORKER HAD RECOMMENDED PROBATION FOR THE GIRL
BECAUSE SHE WAS BEYOND PARENTAL CONTROL.  ALSO ALLEGEDLY SUPPRESSED
WERE THE FACTS CONCERNING AN OCCURRENCE IN PRINCE GEORGE'S COUNTY AT A
PARTY ON THE NIGHT OF AUGUST 26, 1961, FIVE WEEKS AFTER THE ALLEGED
RAPE, AND OVER THREE MONTHS BEFORE THE TRIAL.  THE GIRL HAD SEXUAL
RELATIONS WITH TWO MEN AT THE PARTY, AND LATER THAT NIGHT TOOK AN
OVERDOSE OF PILLS AND WAS HOSPITALIZED IN A PSYCHIATRIC WARD OF PRINCE
GEORGE'S GENERAL HOSPITAL FOR NINE DAYS AS AN ATTEMPTED SUICIDE.  SHE
TOLD A FRIEND WHO VISITED HER AT THE HOSPITAL THAT THE TWO MEN HAD
RAPED HER.  THE FRIEND TOLD HER PARENTS WHO REPORTED THIS TO MONTGOMERY
COUNTY POLICE LIEUTENANT WHALEN, HEAD OF THE INVESTIGATION FOR THE
STATE'S ATTORNEY INTO THE CHARGE AGAINST PETITONERS.  LIEUTENANT WHALEN
ADVISED THE MOTHER THAT HE HAD NO JURISDICTION OF PRINCE GEORGE'S
COUNTY OFFENSES, AFTER WHICH THE GIRL'S FATHER FILED A FORMAL CHARGE OF
RAPE AGAINST THE TWO MEN WITH THE PRINCE GEORGE'S COUNTY AUTHORITIES. 
A PRINCE GEORGE'S COUNTY POLICE OFFICER, SERGEANT WHEELER, INTERVIEWED
THE GIRL AT THE HOSPITAL.  SHE REFUSED TO SAY SHE HAD BEEN RAPED.  SHE
TOLD THE OFFICER SHE HAD PREVIOUSLY HAD RELATIONS WITH ONE OF THE MEN
AND ALSO THAT IN THE PREVIOUS TWO YEARS SHE HAD HAD SEXUAL RELATIONS
WITH NUMEROUS BOYS AND MEN, SOME OF WHOM SHE DID NOT KNOW. 

FINALLY, THE PROSECUTION ALLEGEDLY SUPPRESSED FACTS CONCERNING A
HEARING CONDUCTED IN THE MONTGOMERY COUNTY JUVENILE COURT ON SEPTEMBER
5, 1961, APPARENTLY THE DAY AFTER THE GIRL'S RELEASE FROM HER NINE-DAY
CONFINEMENT IN THE PSYCHIATRIC WARD AT PRINCE GEORGE'S GENERAL
HOSPITAL, AND THREE MONTHS BEFORE THE TRIAL.  THE HEARING RESULTED IN
THE COMMITMENT OF THE GIRL TO THE MONTROSE SCHOOL FOR GIRLS WHERE SHE
REMAINED FOR SOME TIME.  LIEUTENANT WHALEN TESTIFED THAT HE HAD
ARRANGED THIS HEARING WITH THE MONTGOMERY COUNTY JUVENILE COURT
AUTHORITIES, ALTHOUGH THE GIRL WAS A RESIDENT OF PRINCE GEORGE'S
COUNTY.  HE TESTIFIED THAT THE GIRL'S MOTHER HAD COMPLAINED TO HIM THAT
"THE BOYS IN PRINCE GEORGE'S COUNTY WERE HARASSING THE GIRL, DRIVING
BACK AND FORTH PAST THE HOUSE ALL HOURS," AND THAT HE ARRANGED THE
PROCEEDING "TO PLACE THE GIRL IN SOME PLACE FOR PROTECTIVE CUSTODY." 
THE MONTGOMERY JUVENILE COURT RECORD DISCLOSES, HOWEVER, THAT THE
HEARING ALSO INQUIRED INTO THE NECESSITY FOR THE GIRL'S CONFINEMENT AS
A JUVENILE "OUT OF PARENTAL CONTROL AND LIVING IN CIRCUMSTANCES
ENDANGERING HER WELL-BEING."  THE GIRL TESTIFIED AT THE HEARING THAT
SHE HAD TAKEN PILLS BECAUSE SHE FELT THAT "SHE WANTED TO DIE AND THERE
WAS NOTHING TO LIVE FOR." 

THE PETITIONERS' CONTENTION WAS THAT ALL OF THIS EVIDENCE TENDED TO
SUPPORT THEIR TESTIMONY AND DISCREDIT THAT OF THE GIRL AND FOSTER AND
MIGHT, THEREFORE, HAVE PRODUECED AN ACQUITTAL OR, AT LEAST, A REDUCTION
OF PENALTY.  (FN4)  THEY ALSO ARGUED THAT KNOWLEDGE OF IT BY THE
DEFENSE WOULD HAVE PROVIDED VALUABLE LEADS TO EVIDENCE SUPPORTING A
CONCLUSION THAT THE GIRL TESTIFIED FALSELY IN DENYING THAT SHE
CONSENTED TO RELATIONS. 

THE PETITIONERS WERE REPRESENTED AT THE TRIAL BY APPOINTED COUNSEL. 
(FN5)  HE TESTIFIED AT THE POST-CONVICTION PROCEEDING THAT HE KNEW
NOTHING BEFORE THE TRIAL OF THE INCIDENTS OF AUGUST 26, THE GIRL'S
SUICIDE ATTEMPT, HER CONFINEMENT IN THE HOSPITAL, THE PSYCHIATRIST'S
DIAGNOSIS OF HER MENTAL ILLNESS, OR OF HER COMMITMENT TO THE MONTROSE
SCHOOL FOR GIRLS.  HE TESTIFIED THAT HE HAD TRIED, BEFORE AUGUST 26, TO
INTERVIEW THE GIRL AT HER HOME BUT THAT HER MOTHER TOLD HIM "SHE TALKED
TO LT. WHALEN AND HE TOLD HER NOT TO DISCUSS THE CASE WITH US."  HE
ALSO TESTIFIED THAT, BASED ON PETITIONERS' STORY TO HIM THAT THE GIRL
HAD TOLD THEM SHE WAS ON PROBATION, HE INQUIRED OF THE JUVENILE COURTS
OF BOTH PRINCE GEORGE'S COUNTY AND MONTGOMERY COUNTY WHETHER THERE WERE
ANY PROCEEDINGS IN THOSE COURTS CONCERNING THE GIRL AND WAS TOLD
RECORDS OF SUCH PROCEEDINGS WERE NOT RELEASED. 

JUDGE MOORMAN FOUND "THAT THE STATE WITHHELD FROM THE DEFENSE AND
SUPPRESSED BOTH THE EVIDENCE CONCERNING THE SECOND RAPE COMPLAINT OF
THE PROSECUTRIX AND THE EVIDENCE RELATIVE TO HER ALLEGED ATTEMPTED
SUICIDE AND EMOTIONAL DISTURBANCE."  HE ORDERED A NEW TRIAL, DESPITE
THE ABSENCE OF A PRETRIAL REQUEST BY DEFENSE COUNSEL FOR DISCLOSURE OF
THE EVIDENCE SUPPRESSED.  SEE BRADY V. MARYLAND, 373 U.S. 83, 87. 

THE COURT OF APPEALS READ JUDGE MOORMAN'S OPINION TO HOLD THAT
NONDISCLOSURE OF EVIDENCE BY THE PROSECUTION DENIES THE ACCUSED DUE
PROCESS IF THE EVIDENCE COULD REASONABLY BE CONSIDERED ADMISSIBLE AND
USEFUL TO THE DEFENSE.  THE COURT OF APPEALS VIEWED THAT FORMULATION TO
BE INCOMPLETE, HOLDING THAT "FOR THE NONDISCLOSURE OF EVIDENCE TO
AMOUNT TO A DENIAL OF DUE PROCESS IT MUST BE SUCH AS IS MATERIAL AND
CAPABLE OF CLEARING OR TENDING TO CLEAR THE ACCUSED OF GUILT OR OF
SUBSTANTIALLY AFFECTING THE PUNISHMENT TO BE IMPOSED IN ADDITION TO
BEING SUCH AS COULD REASONABLY BE CONSIDERED ADMISSIBLE AND USEFUL TO
THE DEFENSE."  239 MD., AT 469-470, 212 A.2D, AT 108.  THE COURT FOUND
THE EVIDENCE ALLEGEDLY SUPPRESSED DID NOT MEET THAT TEST AND HELD THAT
IN ANY EVENT "THE FAILURE OF THE PROSECUTION TO DISCLOSE THE
INFORMATION RELATING TO THE ALLEGED RAPE OF AUGUST 26TH AND THE
SUBSEQUENT SUICIDAL ATTEMPT WAS NOT PREJUDICIAL TO  ...  PETITIONERS
AND DID NOT THEREFORE WARRANT THE GRANTING OF A NEW TRIAL ON THE BASIS
OF THE DENIAL OF DUE PROCESS."  239 MD., AT 471, 212 A.2D, AT 109. 

THE FACTS FOUND BY JUDGE MOORMAN DO NOT INCLUDE ELEMENTS PRESENT IN
EARLIER DECISIONS WHICH DETERMINED THAT THE SUPPRESSION OF EVIDENCE
CONSTITUTED THE DENIAL OF DUE PROCESS OF LAW.  SEE MOONEY V. HOLOHAN,
294 U.S. 103; PYLE V. KANSAS, 317 U.S. 213; ALCORTA V. TEXAS, 355 U.S.
28; NAPUE V. ILLINOIS, 360 U.S. 264; MILLER V. PATE, ANTE, P. 1;
COMPARE UNITED STATES EX REL. ALMEIDA V. BALDI, 195 F.2D 815; UNITED
STATES EX REL.  THOMPSON V. DYE, 221 F.2D 763; BARBEE V. WARDEN, 331
F.2D 842.  THUS THE CASE PRESENTS THE BROAD QUESTIONS WHETHER THE
PROSECUTION'S CONSTITUTIONAL DUTY TO DISCLOSE EXTENDS TO ALL EVIDENCE
ADMISSIBLE AND USEFUL TO THE DEFENSE, AND THE DEGREE OF PREJUDICE WHICH
MUST BE SHOWN TO MAKE NECESSARY A NEW TRIAL.  WE FIND, HOWEVER, THAT IT
IS UNNECESSARY, AND THEREFORE INAPPROPRIATE, TO EXAMINE THOSE
QUESTIONS.  IN NAPUE V. ILLINOIS, SUPRA, 360 U.S., AT 269, WE HELD THAT
A CONVICTION MUST FALL UNDER THE FOURTEENTH AMENDMENT WHEN THE
PROSECUTION "ALTHOUGH NOT SOLICITING FALSE EVIDENCE, ALLOWS IT TO GO
UNCORRECTED WHEN IT APPEARS," EVEN THOUGH THE TESTIMONY MAY BE RELEVANT
ONLY TO THE CREDIBILITY OF A WITNESS.  WE NOW HAVE EVIDENCE BEFORE US,
WHICH NEITHER JUDGE MOORMAN NOR THE COURT OF APPEALS CONSIDERED, WHICH
IN OUR VIEW JUSTIFIES A REMAND TO THE COURT OF APPEALS FOR ITS
CONSIDERATION WHETHER THAT COURT SHOULD ORDER AN INQUIRY TO DETERMINE
WHETHER SUCH A SITUATION AROSE AT PETITIONERS' TRIAL.  THE EVIDENCE
CONSISTS OF TWO POLICE REPORTS, NOT PART OF THE RECORD, WHICH CAME TO
OUR ATTENTION WHEN THE STATE AT OUR REQUEST SUPPLIED THE MATERIAL
CONSIDERED BY THE TRIAL JUDGE IN IMPOSING SENTENCE. 

ON THE MORNING AFTER THE ALLEGED RAPE, JULY 21, 1961, MONTGOMERY
COUNTY POLICE OFFICERS, INCLUDING LIEUTENANT WHALEN AND DETECTIVE
COLLINS, CONDUCTED INTERVIEWS WITH THE GIRL AND FOSTER.  THE INTERVIEWS
WERE WRITTEN UP IN ONE OF THE POLICE REPORTS.  IN AN EFFORT TO PROVE
THE ALLEGATIONS OF THE PETITION, DEFENSE COUNSEL MOVED DURING THE POST
CONVICTION PROCEEDINGS THAT LIEUTENANT WHALEN BE DIRECTED TO PRODUCE
THE REPORT FOR INSPECTION.  THE MOTION WAS DENIED; JUDGE MOORMAN RULED
THE REPORT WAS A POLICE "WORK PRODUCT" AND THEREFORE NOT PRODUCIBLE
UNDER MARYLAND'S RULES OF PROCEDURE. 

THERE CAN BE LITTLE DOUBT THAT THE DEFENSE MIGHT HAVE MADE EFFECTIVE
USE OF THE REPORT AT THE TRIAL OR IN OBTAINING FURTHER EVIDENCE.  IN
THE FIRST PLACE, THE REPORT ATTRIBUTES STATEMENTS TO THE GIRL AND
FOSTER THAT APPEAR INCONSISTENT WITH THEIR TRIAL TESTIMONY.  THE REPORT
QUOTES BOTH AS STATING THEY WERE ENGAGED IN SEXUAL RELATIONS WHEN THEY
WERE DISTRACTED BY THE NOISE AT BOWIE'S CAR, AND THAT THE GIRL DRESSED
BEFORE PETITIONERS AND JOHNSON APPROACHED.  THEY TESTIFIED AT TRIAL,
HOWEVER, THAT THEY WERE MERELY "SITTING" IN THE BACK SEAT OF THE CAR
FROM THE TIME THEIR COMPANIONS LEFT UNTIL THEIR ATTENTION WAS DRAWN TO
THE PRESENCE OF THE FOUR MEN AT BOWIE'S CAR, AND FOSTER BUTTRESSED THIS
TESTIMONY ON CROSS-EXAMINATION BY ANSWERING "NO" TO THE QUESTION
WHETHER HE "DIDN'T TAKE HER OUT THERE TO HAVE SEXUAL RELATIONS WITH
HER, YOURSELF  ...  ?"  FINALLY, NEITHER LIEUTENANT WHALEN NOR
DETECTIVE COLLINS MENTIONED, IN THEIR SUMMARIES AT TRIAL OF WHAT EACH
PERSON INVOLVED IN THE INCIDENT HAD TOLD THEM, THE FACT THAT THE GIRL
AND FOSTER HAD STATED THEY WERE ENGAGED IN SEXUAL RELATIONS WHEN THEY
HEARD THE THREE MEN.    THE TESTIMONY OF THE GIRL AND FOSTER IS OPEN TO
THE CONSTRUCTION THAT THESE KEY WITNESSES DELIBERATELY CONCEALED FROM
THE JUDGE, JURY, AND DEFENSE COUNSEL EVIDENCE OF THE GIRL'S
PROMISCUITY.   (FN6)  WHILE UNDER THE LAW OF MARYLAND SPECIFIC ACTS OF
MISCONDUCT ARE INADMISSIBLE TO IMPEACH A WITNESS' CREDIBILITY, RAU V.
STATE, 133 MD. 613, 105 A. 867, AND SPECIFIC ACTS OF INTERCOURSE ARE
INADMISSIBLE TO ESTABLISH THE PROSECUTRIX' CONSENT, HUMPHREYS V. STATE,
227 MD. 115, 175 A.2D 777, PRIOR INCONSISTENT STATEMENTS AND EVIDENCE
OF GENERAL REPUTATION FOR UNCHASTITY ARE ADMISSIBLE TO IMPEACH A
WITNESS' CREDIBILITY, SEE GILES V. STATE, 229 MD.  370, 183 A.2D 359. 
AND TO THE EXTENT CREDIBILITY COULD HAVE BEEN EFFECTIVELY ATTACKED IN
THIS CASE, RESOLUTION OF THE ISSUE OF CONSENT NECESSARILY WOULD HAVE
BEEN AFFECTED SINCE IT TURNED WHOLLY ON CREDIBILITY. 

THE REPORT COULD ALSO HAVE BEEN USED IN CONNECTION WITH AN ISSUE
WHICH HAS BEEN IN THIS CASE FROM ITS INCEPTION.  AT THE ORIGINAL TRIAL,
COUNSEL SOUGHT IN NUMEROUS WAYS TO ESTABLISH THAT JOHN GILES HAD NOT
HAD INTERCOURSE WITH THE VICTIM.  AT THE TRIAL THE GIRL SAID ALL THREE
HAD RAPED HER.  SHE ADMITTED, HOWEVER, THAT SHE HAD TESTIFIED AT THE
PRELIMINARY HEARING AND HAD TOLD THE POLICE IMMEDIATELY AFTER BEING
ATTACKED THAT ONLY TWO OF THE THREE HAD INTERCOURSE WITH HER. 
DETECTIVE COLLINS TESTIFIED, ON THE OTHER HAND, THAT HE "QUESTIONED THE
GIRL AT THE STATION AND SHE SAID ALL THREE OF THE BOYS HAD INTERCOURSE
WITH HER."  WITH SPECIFIC REFERENCE TO JOHN GILES, COLLINS STATED THAT
THE GIRL "WAS ASKED IF SHE KNEW ANYBODY IN THIS LINE-UP AND SHE WALKED
OVER AND POINTED TO THE DEFENDANT, JOHN GILES, AND STATED TO US, IN HIS
PRESENCE, THAT HE WAS THE FIRST  ...  THAT HAD INTERCOURSE WITH HER
...  ."  LIEUTENANT WHALEN DENIED THAT THE GIRL HAD TOLD HIM "THAT ONLY
TWO OF THESE BOYS HAD INTERCOURSE WITH HER ON THAT EVENING  ...  ." 

COUNSEL AT THE POST-CONVICTION PROCEEDINGS CONTINUED TO ATTEMPT TO
PROVE JOHN GILES WAS INNOCENT OF RAPE.  HE INTRODUCED NEWSPAPER
ARTICLES FROM THE WASHINGTON EVENING STAR AND THE WASHINGTON POST
ATTRIBUTING TO LIEUTENANT WHALEN A STORY THAT THE GIRL HAD SAID ONLY
TWO MEN HAD RAPED HER.  WHEN WHALEN SAID THESE STORIES WERE INCORRECT,
COUNSEL ASKED: "WOULD YOUR INTERVIEW REPORT OF THIS INTERVIEW SHOW WHAT
...  SHE SAID ABOUT THE NUMBER OF MEN WHO ATTACKED HER?"  WHALEN
ANSWERED THAT IT WOULD.  COUNSEL THEREUPON MOVED FOR THE PRODUCTION OF
THE REPORT, BUT THE COURT REFUSED TO ALLOW HIM TO SEE IT BECAUSE OF THE
WORK-PRODUCT RULE.  COUNSEL ALSO ASKED THE GIRL HOW MANY MEN SHE
ORIGINALLY CLAIMED HAD RAPED HER AND, UNLIKE HER TESTIMONY AT TRIAL,
SHE SAID SHE HAD TOLD THE POLICE ALL THREE HAD RAPED HER. 

IN CONTRAST TO MUCH OF THIS TESTIMONY THE POLICE REPORT STATES THAT,
BOTH WHEN INTERVIEWED AND AT A POLICE LINEUP LATER THAT DAY, THE GIRL
IDENTIFIED PETITIONER JOHN GILES NOT AS THE FIRST TO HAVE INTERCOURSE
WITH HER, AS DETECTIVE COLLINS TESTIFIED, BUT AS "THE ONE THAT TRIED TO
HAVE INTERCOURSE WITH HER BUT WAS UNABLE TO DO SO," "THE MAN THAT TRIED
TO RAPE HER  ...  ."  THE CONTENTS OF THE REPORT THUS GO, NOT ONLY TO
THE CREDIBILITY OF THE STATE'S WITNESSES, BUT ALSO TO THE ISSUE AT
TRIAL WHETHER JOHN GILES HAD RAPED THE GIRL.  YET NOTHING APPEARS IN
THE TRIAL TRANSCRIPT TO SHOW WHAT, IF ANY, ACTION WAS TAKEN BY THE
PROSECUTION TO CORRECT OR EXPLAIN THE INCONSISTENCIES BETWEEN THE
TESTIMONY OF THE STATE WITNESSES AND THE REPORT.  (FN7) 

ONLY THE MOST STRAINED READING OF THE MATERIALS BEFORE US CAN EXPLAIN
AWAY THE QUESTIONS RAISED BY THE REPORT WITHOUT THE AID OF FURTHER
INQUIRY.  A SECOND REPORT, FILED BY SERGEANT DUVALL WHO WAS FIRST AT
THE SCENE OF THE INCIDENT, FAR FROM PROVES THAT JOHN GILES PENETRATED
THE GIRL.  HIS REPORT RECITES THAT THE GIRL "STATED THAT TWO OF THE
...  MALES HAD ENTERED HER AND THAT THE THIRD HAD TRIED BUT GAVE UP
WHEN HE SAW LIGHTS COMING."  WHILE THIS STATEMENT WOULD SEEM TO
INDICATE THAT JOHN GILES, WHO WAS THE FIRST TO ATTEMPT INTERCOURSE,
PENETRATED THE GIRL, IT MUST BE READ IN LIGHT OF THE FACT THAT DUVALL'S
REPORT IS A TWO-PAGE, THIRD-PERSON SUMMARY, REPRESENTING WHAT HAD
TRANSPIRED DURING THE TENSE AND HECTIC MOMENTS IMMEDIATELY AFTER THE
INCIDENT, WHEN THE GIRL WAS NEARLY HYSTERICAL ACCORDING TO POLICE
TESTIMONY.  THE OTHER REPORT, IN CONTRAST, IS 22 PAGES LONG, WAS PUT
TOGETHER OVER AT LEAST A THREE-DAY PERIOD, AND CONTAINS EXTENSIVE
QUOTATIONS OF THE GIRL'S STORY TAKEN DOWN IN THE RELATIVE CALM OF THE
POLICE STATION AFTER THE GIRL HAD BEEN TREATED AND FED, INCLUDING HER
REACTION IN PERSONALLY IDENTIFYING JOHN GILES AS THE ONE WHO FAILED TO
HAVE INTERCOURSE.  MOREOVER, DUVALL'S REPORT DOES STATE THAT THE GIRL
TOLD HIM THAT ONLY TWO OF THE MEN ENTERED HER, AND THEREFORE PROVIDES
NO EXPLANATION FOR THE OFFICERS' TESTIMONY THAT SHE HAD SAID ALL THREE
HAD ENTERED HER.  IN FACT, FAR FROM EXPLAINING THE POLICE TESTIMONY,
THE REPORT RAISES A SERIOUS QUESTION AS TO THE ACCURACY OF SERGEANT
DUVALL'S TESTIMONY AT THE ORIGINAL TRIAL THAT HE NEVER DISCUSSED WITH
THE GIRL THE NUMBER OF BOYS WHO HAD HAD INTERCOURSE WITH HER.  (FN8) 

THE STATE ATTEMPTED IN THE POST-CONVICTION PROCEEDINGS TO EXPLAIN THE
GIRL'S INCONSISTENT STATEMENT AT THE PRELIMINARY HEARING BY CONTENDING
THAT SHE WAS UNAWARE OF THE DIFFERENCE BETWEEN THE MEANING OF
INTERCOURSE AND EMISSION, WHICH CAUSED HER TO TESTIFY AT FIRST THAT
ONLY TWO OF THE MEN HAD HAD INTERCOURSE WITH HER.  THE STATE WITNESS
WHO PROPOUNDED THIS THEORY DID NOT OFFER IT AT THE ORIGINAL TRIAL, IN
WHICH HE PARTICIPATED, ALTHOUGH THE GIRL'S EXPLANATION THEN WAS THAT
SHE WAS CONFUSED ABOUT THE NAMES OF THE DEFENDANTS, NOT ABOUT THE
DIFFERENCE BETWEEN INTERCOURSE AND EMISSION.  (FN9)  AND THE REPORT
REVEALS NO CONFUSION ON THE LATTER POINT.  SHE SPOKE THERE OF
INTERCOURSE AS A "PROCESS," AND AT ONE POINT STATED THAT THE SECOND OF
THE YOUTHS "HAD INTERCOURSE FOR ABOUT TEN MINUTES AND REACHED A
CLIMAX."  (FN10)  SHE SAID OF JOHN GILES, NOT THAT HE FAILED TO REACH A
CLIMAX, BUT THAT HE FAILED TO "INSERT" BECAUSE HE "COULD NOT GET" AN
ERECTION.  OF COURSE IT IS POSSIBLE THAT SHE WAS CONFUSED DESPITE THIS
EVIDENCE, AND THAT JOHN GILES ACHIEVED PENETRATION.  BUT IT IS NOT OUR
PLACE TO DECIDE THESE ISSUES, EITHER FOR OR AGAINST PETITIONERS; WE
NEED ONLY DETERMINE THAT THE EVIDENCE RAISES AN ISSUE OF SUFFICIENT
SUBSTANCE TO JUSTIFY REMANDING THIS CASE FOR RECONSIDERATION RATHER
THAN DECIDING THE BROADER CONSTITUTIONAL QUESTION.  (FN11) 

ORIGINAL TRIAL COUNSEL TESTIFIED AT THE POST-CONVICTION PROCEEDING
THAT HE HAD SEEN THE PROSECUTION'S FILE BEFORE TRIAL, INCLUDING THE
POLICE REPORTS.  SINCE THE REPORTS WERE NOT PRODUCED, IT IS PURE
SPECULATION TO CONCLUDE THAT TRIAL COUNSEL HAD IN FACT SEEN THE REPORTS
NOW BEFORE US. AND IF IT WERE PROPER TO RESOLVE THIS QUESTION AGAINST
PETITIONERS, THE COURT OF APPEALS MIGHT NEVERTHELESS REGARD AN INQUIRY
TO BE IN ORDER TO ASCERTAIN TRIAL COUNSEL'S REASONS FOR NOT MAKING USE
OF THE REPORTS IN SUPPORT OF THE DEFENSE HE WAS DIRECTING ON BEHALF OF
PETITIONERS.  FINALLY, THE DETERMINATION OF THESE QUESTIONS AGAINST
PETITIONERS WOULD STILL LEAVE OPEN THE QUESTION WHETHER THE COURT OF
APPEALS MIGHT REGARD THE SITUATION AS ONE IN WHICH THE PROSECUTION WAS
UNDER A DUTY TO DISCLOSE THE DISCREPANCIES TO THE TRIAL JUDGE; THE
COURT STATED IN ITS OPINION THAT, WHERE THERE IS DOUBT AS TO WHAT
SHOULD BE DISCLOSED, "THE TRIAL COURT SHOULD DECIDE WHETHER OR NOT A
DUTY TO DISCLOSE EXISTS."  239 MD., AT 471, 212 A.2D, AT 109. 

IN RELYING UPON MATERIAL NOT PART OF THE RECORD AS A REASON FOR
REMAND, WE FOLLOW OUR PRACTICE OF NOTICING SUPERVENING MATTER IN ORDER
TO AVOID DECIDING CONSTITUTIONAL QUESTIONS BY ALLOWING STATE COURTS TO
TAKE ACTION WHICH MIGHT DISPOSE OF THE CASE.  SEE FOR EXAMPLE,
PATTERSON V. ALABAMA, 294 U.S. 600; BELL V. MARYLAND, 378 U.S. 226.  WE
FOLLOW THIS PRACTICE UNDER VARYING CIRCUMSTANCES, BUT THE PRINCIPLE
BEHIND IT HAS ALWAYS BEEN THE SAME.  THIS COURT HAS "DISCRETION AS TO
THE TIME AND MODE IN WHICH IT WILL EXERT THE POWERS CONFERRED UPON IT.
THAT DISCRETION SHOULD BE EXERCISED IN THE LIGHT OF THE RELATIONS
EXISTING, UNDER OUR SYSTEM OF GOVERNMENT, BETWEEN THE JUDICIAL
TRIBUNALS OF THE UNION AND OF THE STATES, AND IN RECOGNITION OF THE
FACT THAT THE PUBLIC GOOD REQUIRES THAT THOSE RELATIONS BE NOT
DISTURBED BY UNNECESSARY CONFLICT BETWEEN COURTS EQUALLY BOUND TO GUARD
AND PROTECT RIGHTS SECURED BY THE CONSTITUTION."  EX PARTE, ROYALL, 117
U.S. 241, 251. 

IT IS NOT FOR US TO DIRECT WHAT THE MARYLAND COURTS WILL DO IN THIS
CASE.  THE COURT OF APPEALS MAY, FOR ALL WE KNOW, DETERMINE THAT THE
ADDITIONAL EVIDENCE DEMONSTRATES PREJUDICE TO THE DEGREE NECESSARY
UNDER ITS PREVIOUSLY APPLIED STANDARD TO WARRANT A NEW TRIAL.  IT MAY
REMAND FOR A HEARING FREE OF THE "WORK PRODUCT" RULE.  IT MAY REAFFIRM
ITS JUDGMENT OF REVERSAL.  ALTHOUGH RELIEF MAY ULTIMATELY BE DENIED,
AFFORDING THE STATE COURTS THE OPPORTUNITY TO DECIDE IN THE FIRST
INSTANCE IS A COURSE CONSISTENT WITH COMITY, CF. 28 U.S.C.  SEC 2254,
AND A FULL AND FAIR HEARING IN THE STATE COURTS WOULD MAKE UNNECESSARY
FURTHER EVIDENTIARY PROCEEDINGS IN THE FEDERAL COURTS.  SEE TOWNSEND V.
SAIN, 372 U.S. 293.  WE WOULD REMAND BECAUSE OF OUR CONCLUSION THAT THE
POLICE REPORTS, CONSIDERED IN THE CONTEXT OF THE RECORD BEFORE US,
RAISE QUESTIONS SUFFICIENT TO JUSTIFY AVOIDING DECISION OF THE BROAD
CONSTITUTIONAL ISSUES PRESENTED BY AFFORDING THE OPPORTUNITY TO THE
MARYLAND COURT OF APPEALS TO DECIDE WHETHER A FURTHER HEARING SHOULD BE
DIRECTED.  SEE HENRY V. MISSISSIPPI, 379 U.S. 443. 

THE TRUISM THAT OUR FEDERAL SYSTEM ENTRUSTS THE STATES WITH PRIMARY
RESPONSIBILITY IN THE CRIMINAL AREA MEANS MORE THAN MERELY "HANDS
OFF."  THE STATES ARE BOUND BY THE CONSTITUTION'S RELEVANT COMMANDS BUT
THEY ARE NOT LIMITED BY THEM.  WE THEREFORE SHOULD NOT OPERATE UPON THE
ASSUMPTION - ESPECIALLY INAPPROPRIATE IN MARYLAND'S CASE IN LIGHT OF
ITS DEMONSTRATED CONCERN TO AFFORD POST-CONVICTION RELIEF PARALLELING
THAT WHICH MAY BE AFFORDED BY FEDERAL COURTS IN HABEAS CORPUS
PROCEEDINGS  (FN12)  - THAT STATE COURTS WOULD NOT BE CONCERNED TO
RECONSIDER A CASE IN LIGHT OF EVIDENCE SUCH AS WE HAVE HERE,
PARTICULARLY WHERE THE RESULT MAY AVOID UNNECESSARY CONSTITUTIONAL
ADJUDICATION AND MINIMIZE FEDERAL-STATE TENSIONS. 

WE WOULD THEREFORE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND TO THAT COURT FOR FURTHER PROCEEDINGS. 

FN1  PETITIONERS HAD PREVIOUSLY APPEALED UNSUCCESSFULLY FROM THE
CONVICTIONS, GILES V. STATE, 229 MD. 370, 183 A.2D 359, APPEAL
DISMISSED, 372 U.S. 767, AND FROM THE DENIAL OF A NEW TRIAL, GILES V.
STATE, 231 MD. 387, 190 A.2D 627. 

FN2  JOHNSON WAS TRIED AND CONVICTED OF RAPE OF THE GIRL AT A
SEPARATE TRIAL IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY.  HIS
APPLICATION FOR POST-CONVICTION RELIEF IS BEING HELD IN ABEYANCE
PENDING DISPOSITION OF THIS CASE. 

FN3  "WITH RESPECT TO THE PRESENCE OR ABSENCE OF THE ELEMENT OF
CONSENT, IT IS TRUE, OF COURSE, THAT HOWEVER RELUCTANTLY GIVEN, CONSENT
TO THE ACT AT ANY TIME PRIOR TO PENETRATION DEPRIVES THE SUBSEQUENT
INTERCOURSE OF ITS CRIMINAL CHARACTER."  HAZEL V. STATE, 221 MD. 464,
469, 157 A.2D 922, 925. 

FN4  IF THE JURY WHICH FINDS AN ACCUSED GUILTY OF RAPE ADDS TO ITS
VERDICT THE WORDS "WITHOUT CAPITAL PUNISHMENT," THE COURT MAY NOT
IMPOSE THE DEATH PENALTY BUT ONLY IMPRISONMENT FOR NOT EXCEEDING 20
YEARS IN THE PENITENTIARY.  MD. ANN. CODE ART. 27, SEC 463 (1957).  IF
THE JURY DOES NOT ADD SUCH WORDS TO ITS VERDICT, THE COURT, AT ITS
DISCRETION, MAY IMPOSE THE DEATH SENTENCE, A LIFE SENTENCE, OR A
SENTENCE IN THE PENITENTIARY FOR NOT LESS THAN 18 MONTHS NOR MORE THAN
21 YEARS.   MD. ANN. CODE ART. 27, SEC 461 (1957).  THE JURY DID NOT
ADD TO ITS VERDICT THE WORDS "WITHOUT CAPITAL PUNISHMENT," AND THE
TRIAL JUDGE IMPOSED DEATH SENTENCES.  GOVERNOR TAWES SUBSEQUENTLY
COMMUTED THE SENTENCES TO LIFE IMPRISONMENT. 

FN5  OTHER COUNSEL ARE REPRESENTING THEM IN THE POST-CONVICTION
PROCEEDINGS. 

FN6  THE DISSENTING JUDGES IN THE COURT OF APPEALS WERE OF THE VIEW
THAT THE EXTENSIVE EVIDENCE OF THE GIRL'S REPUTATION FOR UNCHASTITY
PRESENTED IN THE POST-CONVICTION RECORD, ADDED TO THE EVIDENCE OF HER
EMOTIONAL INSTABILITY, MIGHT SUPPORT A DEFENSE THAT SHE SUFFERED FROM
AN UNCONTROLLABLE WEAKNESS THAT PETITIONERS MIGHT REASONABLY HAVE
MISTAKEN FOR CONSENT.  THE MAJORITY APPARENTLY WERE ALSO OF THE VIEW
THAT UNDER SOME CIRCUMSTANCES SUPPRESSION OF EVIDENCE PERTAINING TO A
WITNESS' MENTAL CONDITION MIGHT AMOUNT TO A DEPRIVATION OF DUE
PROCESS.  IF THIS IS SO, THE CONCLUSION OF THE MAJORITY THAT NO SUCH
EVIDENCE EXISTED OR WAS SUPPRESSED IN THIS CASE IS OPEN TO QUESTION,
SINCE THE POST-CONVICTION COURT PREVENTED ALL ATTEMPTS OF COUNSEL TO
INTRODUCE EVIDENCE OF THE GIRL'S CONDITION (INCLUDING A PSYCHIATRIC
DIAGNOSIS AND EVIDENCE PRESENTED AT A JUVENILE PROCEEDING) OR OF THE
FACT THAT MONTGOMERY COUNTY POLICE OFFICIALS KNEW OF SUCH EVIDENCE.  IF
A NEW HEARING IS HELD IN THE STATE COURTS, AN INQUIRY INTO THESE
MATTERS MIGHT BE DEEMED APPROPRIATE. 

FN7  THE RECORD BEFORE US AFFIRMATIVELY DEMONSTRATES THAT BOTH
DETECTIVE COLLINS AND MR. KARDY, WHO SUPERVISED THE PROSECUTION, HAD
READ THE REPORT BEFORE TRIAL.  COLLINS TESTIFIED AT THE TRIAL THAT HE
WROTE UP THE REPORT AND HAD READ IT THE NIGHT BEFORE.  AT THE POST
CONVICTION HEARING KARDY WAS ASKED: "YOU SAW THE POLICE REPORT PRIOR TO
TRIAL, OF COURSE?  A. YES."    FN8  THE TESTIMONY WAS AS FOLLOWS: 

"Q.  DID YOU HAVE A DISCUSSION WITH THIS GIRL ABOUT HOW MANY BOYS HAD
HAD INTERCOURSE WITH HER ...  ? 

"A.  NO. 

"Q.  YOU SAY YOU DID NOT? 

"A.  NO, SIR. 

"Q.  YOU NEVER DID DISCUSS THAT WITH HER?   "A.  NO, SIR." 

FN9  "Q.  WHY ARE YOU TELLING A DIFFERENT STORY TODAY THAN THE STORY
YOU TOLD THE POLICE IMMEDIATELY AFTER THIS HAPPENED, AND THE STORY YOU
TOLD AT THE PRELIMINARY HEARING? 

"A.  BECAUSE I HAVE THOUGHT ABOUT IT. 

"Q.  WHAT DO YOU MEAN YOU HAVE THOUGHT ABOUT IT? 

"A.  WELL AT THE TIME I WAS CONFUSED - PEOPLE WERE GIVING NAMES, AND
I HAD NO IDEA OF WHAT THE BOYS' NAMES WERE. 

"Q.  WHO WAS GIVEN NAMES? 

"A.  AFTER THE LINE-UPS; AFTER I HAD IDENTIFIED ALL THREE OF THE
MEN." 

FN10  THE REPORT RECITES THAT SHE WAS ASKED THE FOLLOWING QUESTIONS,
APPARENTLY BY LIEUTENANT WHALEN, AND GAVE THE FOLLOWING ANSWERS: 

"Q-W.  HOW MANY OF THEM HAD INTERCOURSE WITH YOU? 

"A.  THE BIGGER ONE (JOHN) TRIED FIRST, THEN THE OTHER TWO. 

"Q-W.  DID ANY OF THEM HAVE AN EMISSION? 

"A.  YES, THE SECOND ONE AND MAYBE THE THIRD." 

FN11  CERTAINLY THE TEST CANNOT BE, AS IS SUGGESTED, THAT A REMAND
WOULD BE JUSTIFIED ONLY IF THE EVIDENCE PRESENTED "NECESSARILY EXCLUDES
THE CONCLUSION THAT JOHN GILES ACHIEVED PENETRATION, HOWEVER SLIGHT." 

FN12  SEE HUNT V. WARDEN, 335 F.2D 936, 941-943 (C.A. 4TH CIR.,
1964); MIDGETT V. WARDEN, 329 F.2D 185 (C.A. 4TH CIR., 1964), AND THE
OTHER CASES DISCUSSED IN NOTE, 40 N.Y.U.L. REV. 154, 193-195 (1965). 

MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT. 

I CONCUR IN THE JUDGMENT OF THE COURT, ALTHOUGH I AM UNABLE TO JOIN
THE OPINION OF MY BROTHER BRENNAN.  IN MY VIEW, THERE WAS NO VIOLATION
OF THE RULE OF NAPUE V. ILLINOIS, 360 U.S. 264.  THE ARGUMENT IS THAT
AT THE TRIAL THE POLICE OFFICERS TESTIFIED THAT THE COMPLAINING WITNESS
HAD SAID, ALL ALONG, THAT THREE MEN HAD RAPED HER, WHEREAS THE POLICE
REPORTS SUPPLIED TO THE COURT AFTER ORAL ARGUMENT CLEARLY INDICATE THAT
THE COMPLAINING WITNESS HAD TOLD THE OFFICERS AT ONE POINT THAT ONLY
TWO MEN HAD RAPED HER.  ALTHOUGH THE FACT MISSTATED BY THE POLICE AT
TRIAL BEARS PRIMARILY UPON THE CREDIBILITY OF THE OFFICERS WHO
TESTIFIED, IT MIGHT BE ARGUED THAT IN ADDITION THE FALSE TESTIMONY BORE
SOME RELATIONSHIP TO THE CREDIBILITY OF THE PROSECUTING WITNESS AND TO
THE QUESTION WHETHER BOTH OF THE PETITIONERS HAD IN FACT COMMITTED
RAPE.  BUT THESE ISSUES WERE NOT OVERLOOKED BY PETITIONERS' COUNSEL AT
TRIAL, WHO THEN CONFRONTED THE COMPLAINING WITNESS WITH THE
INCONSISTENCY IN HER ALLEGATIONS.  HAD PETITIONERS' COUNSEL BEEN LESS
DILIGENT, THE FALSE TESTIMONY MIGHT RISE TO THE LEVEL OF A NAPUE
VIOLATION.  (FN1) 

CONCERNING THE TESTIMONY GIVEN BY FOSTER AS TO WHY HE WAS WITH THE
COMPLAINING WITNESS ON THE EVENING OF THE ALLEGED RAPE THERE CAN BE NO
ARGUMENT UNDER NAPUE, A POINT MADE CLEAR BY THE OPINION OF MY BROTHER
HARLAN. 

NEVERTHELESS, FOR THE REASONS WHICH FOLLOW I CONCUR IN THE JUDGMENT
REMANDING THE CASE TO THE MARYLAND COURT OF APPEALS FOR FURTHER
CONSIDERATIONS. 

PETITIONERS HERE WERE APPELLEES IN THE MARYLAND COURT OF APPEALS,
HAVING PREVAILED IN THE TRIAL COURT IN THEIR POST-CONVICTION ATTEMPT TO
WIN A NEW TRIAL.  IN THE MARYLAND APPELLATE COURT, THEY SOUGHT TO
SUSTAIN THE JUDGMENT NOT ONLY ON THE GROUNDS STATED BY THE CIRCUIT
COURT - SUPPRESSION OF EVIDENCE WITH RESPECT TO AN ALLEGED FALSE RAPE
CLAIM AND A SUICIDE ATTEMPT - BUT ON THE ADDITIONAL GROUND THAT THE
STATE HAD SUPPRESSED OTHER EVIDENCE INCLUDING EVIDENCE WITH RESPECT TO
THE RAPE VICTIM'S REPUTATION FOR PROMISCUITY AND EVIDENCE WITH RESPECT
TO HER MENTAL CONDITION.  THE MARYLAND COURT OF APPEALS APPARENTLY
CONSIDERED IT APPROPRIATE AND IMPORTANT TO DISPOSE OF THESE ADDITIONAL
SUPPRESSION CLAIMS.  WITH RESPECT TO REPUTATION FOR UNCHASTITY THE
COURT ACKNOWLEDGED THE ADMISSIBILITY OF SUCH EVIDENCE WHERE CONSENT IS
AN ISSUE.  THE COURT HELD, HOWEVER, THAT THE PROSECUTION COULD NOT BE
CHARGED WITH WITHHOLDING REPUTATION EVIDENCE SINCE THE DEFENSE ITSELF
HAD AMPLE KNOWLEDGE OF THE PROMISCUOUS CONDUCT OF THE PROSECUTING
WITNESS.  AS TO HER MENTAL CONDITION, THE COURT CITED WITH APPROVAL
PEOPLE V. BASTIAN, 330 MICH., 457, 47 N.W.2D 692 (1951), APPARENTLY
CONCEDING THAT EVIDENCE OF "NYMPHOMANIA" - WHICH THE COURT REFERRED TO
AS A "TYPE OF MENTAL ILLNESS" - WAS ADMISSIBLE IN A CASE SUCH AS THIS. 
BUT THE COURT HELD (1) THAT THE PROSECUTION COULD BE CHARGED ONLY WITH
THE KNOWLEDGE THAT THE MOTHER OF THE VICTIM HAD AT ONE TIME TAKEN HER
TO A PSYCHIATRIST; (2) THAT THERE WAS NOTHING IN THE RECORD TO SHOW
THAT THE VICTIM WAS SUFFERING FROM NYMPHOMANIA; AND (3) THAT EVEN IF
SHE WAS SO AFFLICTED, "THERE IS NOTHING TO SHOW THAT THIS MADE HER
INCOMPETENT AS A WITNESS OR THAT SHE CONSENTED TO THE ACTS FOR WHICH
THE APPELLEES WERE CONVICTED." 

OF COURSE, THE COURT'S ULTIMATE RESULT UNAVOIDABLY FOLLOWED FROM
THESE FACTUAL DETERMINATIONS AND IT WOULD APPEAR THAT THE EVIDENCE NOW
IN THE RECORD IS CONSISTENT WITH THESE CONCLUSIONS.  BUT THIS DOES NOT
END THE MATTER IN MY VIEW, IF THE INQUIRY PERMITTED THE PETITIONERS IN
THE TRIAL COURT WAS NOT ALL THAT THE MARYLAND LAW ALLOWS OR THAT THE
CONSTITUTION REQUIRES.  AND BASED ON THE RECORD AS IT COMES HERE, I AM
NOT AT ALL SURE THAT THERE HAS BEEN A FULL AIRING OF THE SUPPRESSION
ISSUE OR THAT THE PETITIONERS ARE RESPONSIBLE FOR THE OBVIOUS
SHORTCOMINGS IN THE EVIDENCE WITH RESPECT TO THE MENTAL CONDITION OF
THE RAPE VICTIM AND THE PROSECUTION'S KNOWLEDGE WITH RESPECT TO THIS
MATTER.   I AM SUFFICIENTLY UNSURE THAT I WOULD REMAND FOR FURTHER
CONSIDERATION BY THE MARYLAND COURT OF APPEALS. 

TO SET IN PERSPECTIVE THOSE PARTS OF THE RECORD WHICH CONCERN ME, A
BRIEF SUMMARY OF THE FACTS IS NECESSARY.  IN CHRONOLOGICAL ORDER, THIS
CASE INVOLVES THE ALLEGED RAPE BY PETITIONERS, A SUBSEQUENT OCCASION
UPON WHICH THE COMPLAINING WITNESS EXPERIENCED SEXUAL INTERCOURSE WITH
TWO YOUNG MEN (WHICH LED TO THE SO-CALLED FALSE RAPE CLAIM), A SUICIDE
ATTEMPT BY THE COMPLAINING WITNESS FOLLOWED BY TEMPORARY
HOSPITALIZATION IN A PSYCHIATRIC WARD, A JUVENILE COURT PROCEEDING AS A
RESULT OF WHICH THE COMPLAINING WITNESS WAS SENT AWAY FROM HER HOME,
AND FINALLY THE TRIAL AT WHICH THE PETITIONERS WERE CONVICTED.  WHILE
THE COMPLAINING WITNESS WAS HOSPITALIZED, SHE WAS SUBJECTED TO A
PSYCHIATRIC EXAMINATION BY DR. DOUDOUMOPOULIS, WHO RELATED HIS OPINION
TO DR. CONNOR, WHO IN TURN SPOKE WITH THE PARENTS OF THE COMPLAINING
WITNESS.  IN ADDITION, AND HIGHLY RELEVANT TO THE ISSUE OF SUPPRESSION,
THE RECORD OF THE JUVENILE COURT PROCEEDINGS REFLECTS THE FACT THAT
LIEUTENANT WHALEN OF THE MONTGOMERY COUNTY POLICE DEPARTMENT HAD
DISCUSSED THE MATTER OF CONFINEMENT OF THE COMPLAINING WITNESS WITH DR.
CONNOR AND HAD ARRANGED FOR AND PARTICIPATED IN THE JUVENILE COURT
HEARING. 

THE FOLLOWING EXCERPTS FROM THE POST-CONVICTION HEARING TRANSCRIPT
ARE THE SOURCE OF MY CONCERN WITH THE RECORD AS IT COMES TO US. 

DR. CONNOR TESTIFIED THAT HE HAD SEEN THE COMPLAINING WITNESS DAILY
DURING HER HOSPITALIZATION FOLLOWING THE SUICIDE ATTEMPT. 

"Q.  AND ON THE SUBSEQUENT DAYS COULD YOU TELL US WHAT PART OF THE
HOSPITAL YOU SAW HER, WHICH WARD? 

"A.  I SAW HER ON A WING, WHICH IS THE PSYCHIARTIC WARD. 

"Q.  DID YOU REQUEST DR. DOUDOUMOPOULIS TO MAKE A PSYCHIATRIC
EVALUATION OF MISS ROBERTS? 

"A.  YES, I DID. 

"Q.  AND DID HE REPORT TO YOU HIS EVALUATION OR DIAGNOSIS OF HER
CASE? 

"A.  YES, HE DID. 

"Q.  DID YOU CONCUR WITH HIM? 

"A.  YES, I DID. 

"Q.  COULD YOU TELL US WHAT THAT DIAGNOSIS OR EVALUATION WAS? 

"MR. KARDY:  JUST A MINUTE, DOCTOR.  OBJECT, YOUR HONOR. 

"THE COURT:  OBJECTION SUSTAINED." 

SUBSEQUENTLY, DR. CONNOR, WHO HAD NOT PERFORMED THE PSYCHIATRIC
EXAMINATION, WAS ALLOWED TO TESTIFY CONCERNING HIS NONPSYCHIATRIC
DIAGNOSIS OF THE PATIENT, AND HIS CONCLUSION WAS "ADOLESCENT
REACTION."  THE FAILURE OF THE HEARING TO PRODUCE, THROUGH DR. CONNOR,
ANY MEANINGFUL TESTIMONY REGARDING THE PSYCHIATRIC CONDITION OF THE
COMPLAINING WITNESS MIGHT HAVE BEEN PRESAGED BY THE TESTIMONY THE SAME
DOCTOR WAS ALLOWED TO GIVE ON DEPOSITION  (FN2)  PRIOR TO THE POST
CONVICTION HEARING, THE CONTENTS OF WHICH FOLLOW: 

"Q.  DID YOU SEE JOYCE CAROL ROBERTS DURING THE HOSPITALIZATION? 

"A.  DURING THE HOSPITALIZATION, YES. 

"Q.  AT THAT TIME DID YOU HAVE OCCASION TO SPEAK TO LIEUTENANT WHALEN
OF THE MONTGOMERY COUNTY POLICE DEPARTMENT ABOUT JOYCE? 

"A.  I SPOKE TO SOMEONE FROM THE MONTGOMERY COUNTY POLICE DEPARTMENT
DURING THAT PERIOD.  I DON'T KNOW JUST EXACTLY WHO IT WAS OR THE EXACT
DATE, BUT I DO RECALL TALKING TO SOMEONE ABOUT HER. 

"Q.  AND WHERE DID THAT CONVERSATION TAKE PLACE? 

"Q.  I BELIEVE IT WAS IN MY OFFICE AT 4713 BERWYN ROAD, IN COLLEGE
PARK.  MY OFFICE WAS THERE. 

"Q.  WILL YOU STATE THE SUBSTANCE OF THAT CONVERSATION? 

"MR. KARDY:  I OBJECT. 

"THE COURT:  THE OBJECTION IS SUSTAINED. 

"MR. WITT:  YOUR HONOR, WE ARE SEEKING TO FIND OUT WHAT INFORMATION
WAS GIVEN TO THE STATE ABOUT THE CREDIBILITY OF THIS WITNESS. 

"THE COURT:  HE HAS NOT TESTIFIED THAT HE TALKED TO ANYONE FROM THE
STATE; HE SAID HE TALKED TO SOMEONE IN MONTGOMERY COUNTY. 

"MR. WITT:  MONTGOMERY COUNTY POLICE DEPARTMENT, YOUR HONOR. 

"THE COURT:  HE SAID, 'TO SOMEONE,' AS I HEARD HIS ANSWER. 

"MR. WITT:  CAN WE HAVE THE ANSWER READ BACK? 

"THE COURT:  DOCTOR, CAN YOU IDENTIFY THE PERSON TO WHOM YOU TALKED? 

"THE WITNESS:  NO, SIR; I CANNOT.  I RECALL THERE WAS SOMEONE FROM
THE POLICE DEPARTMENT. 

"MR. KARDY:  OF MONTGOMERY COUNTY? 

"THE WITNESS:  OF MONTGOMERY COUNTY. 

     *     *         *         *         * 

"THE COURT:  COUNSEL, DO YOU PROFFER TO SHOW THAT FROM THAT
CONVERSATION OF THE STATE'S ATTORNEY HAD KNOWLEDGE THAT THERE WAS
EVIDENCE SUPPRESSED WHICH WOULD HAVE BEEN A DEFENSE TO THE CRIME? 

"MR. WITT:  YES, YOUR HONOR. 

"THE COURT:  WHAT SPECIFICALLY DO YOU PROFFER TO SHOW? 

"MR. WITT:  WE PROFFER TO SHOW THAT THE STATE HAD KNOWLEDGE OF THIS
GIRL'S PSYCHIATRIC CONDITION AT THE TIME. 

"THE COURT:  WHAT DIFFERENCE WOULD THAT MAKE? 

"MR. WITT: IT IS UNDER NAPUE AGAINST ILLINOIS.  EVIDENCE RESPECTING
THE CREDIBILITY OF A WITNESS WHICH IS IN THE POSSESSION OF THE STATE AT
THE TIME OF THE TRIAL AND WHICH IS SUPPRESSED BY STATE IS A VIOLATION
OF DUE PROCESS. 

"THE COURT:  I WILL SUSTAIN THE OBJECTION. 

     *         *         *         *         * 

"Q.  DID YOU AT THAT TIME HAVE OCCASION TO SPEAK TO EITHER OR BOTH OF
JOYCE'S PARENTS? 

"A.  WELL, I WAS SPEAKING TO HER MOTHER ON FREQUENT OCCASIONS, AND I
SPOKE TO HER FATHER ON ONE OR MORE OCCASIONS, I DON'T RECALL HOW
OFTEN. 

"Q.  AND DID YOU DISCUSS WITH THEM WHAT SHOULD BE DONE FOR JOYCE? 

*         *         *         *         * 

"A.  YES. 

"Q.  WILL YOU STATE WHAT WAS SAID? 

"MR. KARDY:  JUST A MINUTE, DOCTOR.  I OBJECT. 

"THE COURT:  OBJECTION IS SUSTAINED. 

"Q.  DID EITHER OF THEM TELL YOU ABOUT ANY OTHER ALLEGED RAPE OF
JOYCE? 

"MR. KARDY:  I OBJECT. 

"THE COURT:  SUSTAINED. 

"Q.  DID ANY MEMBER OF JOYCE'S FAMILY TELL YOU ABOUT ANY OTHER
ALLEGED RAPE OF JOYCE? 

"MR. KARDY:  I OBJECT. 

"THE COURT:  SUSTAINED. 

"Q.  IN THE COURSE OF YOUR TREATMENT OF JOYCE DURING THIS PERIOD, DID
YOU HAVE OCCASION TO CALL IN ANOTHER DOCTOR? 

"A.  ARE YOU REFERRING TO HOSPITALIZATION? 

"Q.  YES. 

"A.  YES, I DID. 

"Q.  AND WHO WAS THAT DOCTOR? 

"A.  DR. DOUDOUMOPOULIS. 

"Q.  DID YOU DISCUSS JOYCE WITH HIM AFTER HE HAD SEEN HER? 

"A.  YES, I DID. 

"Q.  DID HE DIAGNOSE HER AS A JUVENILE SCHIZOPHRENIC? 

"MR. KARDY:  JUST A MINUTE; DON'T ANSWER THAT.  I OBJECT. 

"THE COURT:  THE OBJECTION IS SUSTAINED. 

"Q.  DID YOU DISCUSS WITH DR. DOUDOUMOPOULIS WHAT TREATMENT JOYCE
SHOULD RECEIVE? 

"MR. KARDY:  I OBJECT  ...  . 

"THE COURT:  I THINK IT IS IMMATERIAL.  I WILL SUSTAIN THE
OBJECTION." 

IMMEDIATELY AFTER DR. CONNOR'S DEPOSITION WAS TAKEN, LIEUTENANT
WHALEN OF THE MONTGOMERY COUNTY POLICE DEPARTMENT WAS PUT UNDER OATH. 
LIEUTENANT WHALEN TESTIFIED THAT HE HAD CONTACTED MR. KARDY, THE
PROSECUTOR, AND THAT THEY ARRANGED FOR A HEARING IN THE JUVENILE COURT
IN MONTGOMERY COUNTY ON SEPTEMBER 5, 1961.  THE REASON FOR SEEKING
PROTECTIVE CUSTODY FOR THE GIRL WAS THAT, IN WHALEN'S WORDS:  "THE BOYS
IN THE AREA WERE HARASSING THE GIRL SO BAD THAT SHE (THE MOTHER) WOULD
LIKE TO GET SOME HELP FOR THE GIRL  ...  ." 

"Q.  WERE YOU PRESENT THROUGHOUT THAT JVUENILE COURT HEARING OF
SEPTEMBER 5, 1961? 

"A.  I WAS IN AND OUT OF THE COURTROOM.  I WAS NOT THERE EVERY
SECOND. 

"Q.  LET ME GO BACK A MINUTE; ISN'T IT A FACT THAT PRIOR TO THIS
HEARING YOU HAD TALKED TO DR. CONNOR WITH RESPECT TO JOYCE ROBERTS'
MENTAL CONDITION? 

"MR. KARDY:  I OBJECT. 

     *         *         *         *         * 

"MR. FORER:  ...  YOUR HONOR, WE HAD DR. CONNOR ON THE STAND EARLIER
TODAY, AND DR. DOUDOUMOPOULIS; WE WERE TRYING TO LAY A FOUNDATION BY
SHOWING THAT THE GIRL'S CONDITION WAS SUCH THAT IT WOULD HAVE AFFECTED
HER CREDIBILITY.  DR. DOUDOUMOPOULIS ACTUALLY WAS QUALIFIED, AS A
QUALIFIED PSYCHIATRIC EXPERT, TO SAY IF IT WOULD HAVE AFFECTED HER
CREDIBILITY.  IT WOULD HAVE BEEN RELEVANT TO WHETHER OR NOT SHE INVITED
THIS INTERCOURSE OR REJECTED IT.  (FN3)  AND WITH DR. CONNOR WE ALSO
BROUGHT OUT WHATEVER THE DOCTORS DISCOVERED HE HAD TOLD SOME
REPRESENTATIVES FROM THE MONTGOMERY COUNTY POLICE.  BUT YOUR HONOR
EXCLUDED OUR QUESTIONING DESIGNED TO GO INTO THE MENTAL CONDITION OF
THE GIRL.  NOW, YOUR HONOR IS EXCLUDING MY ASKING HIM WHETHER HE KNEW
ABOUT IT ON THE GROUNDS THAT WE HAVE NOT ESTABLISHED THE SIGNIFICANCE
OF THE MENTAL CONDITION.    "THE COURT:  I WILL SUSTAIN THE OBJECTION. 
I DO NOT THINK IT IS PROPER IN THIS PROCEDURE. 

     *         *         *         *         * 

"Q.  NOW LET US GO BACK TO THIS JUVENILE COURT HEARING IN MONTGOMERY
COUNTY, SEPTEMBER 5, 1961.  WAS ANYTHING SAID AT THE JUVENILE COURT
HEARING ABOUT THE FACT THAT JOYCE ROBERTS HAD ATTEMPTED TO COMMIT
SUICIDE SHORTLY BEFORE THAT DATE? 

"MR. KARDY:  I OBJECT. 

"THE COURT:  I WILL SUSTAIN THE OBJECTION." 

THE DAY BEFORE THE POST-CONVICTION HEARING BEGAN, DR. DOUDOUMOPOULIS,
ALTHOUGH SUBJECT TO A BENCH WARRANT, HAD "LEFT FOR MAINE" FOR TWO
WEEKS.  IN ALL FAIRNESS TO THE PRESIDING JUDGE, IT SHOULD BE NOTED THAT
HE OFFERED TO CONTINUE THE HEARING UNTIL THE DOCTOR COULD BE REACHED
FOR HIS TESTIMONY.  BUT ON THE OTHER HAND, THE COUNSEL FOR PETITIONERS
PERHAPS HAD NO REASON TO EXPECT THAT THE COURSE OF THE POST-CONVICTION
HEARING WOULD RUN ANY DIFFERENTLY FROM THAT AT THE DEPOSITION
PROCEEDING IN ADVANCE OF THE HEARING,  (FN4)  WHERE DR. DOUDOUMOPOULIS,
AND THE PETITIONERS' COUNSEL, COULD ACHIEVE ONLY THE FOLLOWING
INTERCHANGE. 

"Q.  DR. DOUDOUMOPOULIS, ON OR ABOUT AUGUST 26, 1961, IN THE COURSE
OF YOUR PRACTICE, DID YOU HAVE OCCASION TO SEE A GIRL BY THE NAME OF
JOYCE CAROL ROBERTS? 

"A.  I SAW HER ON THE 28TH OF AUGUST, 1961. 

"Q.  WHERE DID YOU SEE HER? 

"A.  AT PRINCE GEORGE'S HOSPITAL. 

"Q.  WHAT CAUSED YOU TO SEE HER? 

"MR. KARDY:  I OBJECT. 

*         *         *         *         * 

"THE COURT:  I WILL OVERRULE IT.  I WILL PERMIT THAT. 

"Q.  YOU MAY ANSWER. 

"A.  DR. CHARLES D. CONNOR HAD ASKED ME TO MAKE A PSYCHIATRIC
EVALUATION OF HER. 

     *         *         * *         * 

"Q.  DID YOU INTERVIEW HER? 

"A.  YES, I DID. 

     *         *         *         *         * 

"Q.  DID YOU REACH ANY CONCLUSIONS ABOUT HER CONDITION? 

"MR. KARDY:  JUST A MINUTE, DOCTOR.  I OBJECT. 

     *         *         *         *         * 

"MR. WITT:  YOUR HONOR, WE ARE SEEKING TO DISCOVER WHAT THE DOCTOR'S
DIAGNOSIS WAS, AND THEN TO LINK IT UP WITH THE KNOWLEDGE OF THE STATE
WITH RESPECT TO THAT CONDITION.  THAT IS THE PURPOSE. 

"THE COURT:  THE OBJECTION IS SUSTAINED. 

"Q.  DO YOU KNOW DR. CHARLES CONNOR? 

"A.  YES. 

"Q.  DID YOU DISCUSS JOYCE WITH HIM? 

*         *         *         *         * 

"A.  YES. 

"Q.  DID YOU TELL HIM YOUR CONCLUSIONS? 

"MR. KARDY:  I OBJECT. 

"Q.  - IN RESPECT TO JOYCE'S CONDITION? 

"MR. KARDY: I OBJECT. 

"THE COURT:  HE CAN ANSWER IT YES OR NO. 

"THE WITNESS:  YES. 

"Q.  DID YOU DISCUSS WITH HIM WHAT SHOULD BE DONE FOR JOYCE? 

     *         *         *         *       * 

"A.  YES. 

"Q.  WILL YOU TELL US THE DISCUSSION WITH RESPECT TO WHAT SHOULD BE
DONE WITH JOYCE AT THAT TIME? 

"MR. KARDY:  I OBJECT. 

"THE COURT:  SUSTAINED. 

"Q.  DID YOU TALK TO JOYCE'S PARENTS? 

     *         * *         *         * 

"A.  I THINK IT WAS THE MOTHER THAT I TALKED TO. 

     *         *         *         * * 

"Q.  DID YOU HAVE ANY DISCUSSION WITH HER WITH RESPECT TO WHAT SHOULD
BE DONE FOR JOYCE?  ...  DID YOU DISCUSS A HOSPITALIZATION OF JOYCE? 

"MR. KARDY:  I OBJECT. 

     *     *         *         *         * 

"THE COURT:  THE OBJECTION IS SUSTAINED." 

BECAUSE THE RECORD OF THE JUVENILE COURT PROCEEDING CLEARLY INDICATED
THAT PSYCHIATRIC EVIDENCE CONCERNING THE COMPLAINING WITNESS HAD FLOWED
FROM THE DOCTORS INTO THAT HEARING, THE RECORD OF WHICH ALSO REFLECTED
THE PRESENCE OF LIEUTENANT WHALEN, THE PETITIONERS' COUNSEL SOUGHT TO
PURSUE THEIR INQUIRY THROUGH MR. LYNN ADAMS, AN OFFICER OF THE JUVENILE
COURT WHO HAD BEEN INSTRUMENTAL IN THE JUVENILE COURT PROCEEDINGS. 
THIS INQUIRY WAS LIKEWISE CUT SHORT: 

"Q.  NOW, IT IS A FACT, IS IT NOT, A LIEUTENANT DETECTIVE WHALEN OF
THE MONTGOMERY COUNTY POLICE DEPARTMENT WAS ALSO PRESENT AT THAT
HEARING? 

"A.  YES, ACCORDING TO MY INFORMATION IT WAS. 

"Q.  IT IS A FACT, IS IT NOT, THAT THE CHARGE AGAINST JOYCE ROBERTS
WAS THAT SHE WAS OUT OF PARENTAL CONTROL AND LIVING IN CIRCUMSTANCES
ENDANGERING HER WELL-BEING? 

"MR. KARDY:  OBJECT. 

"THE COURT:  SUSTAINED. 

"Q.  WAS IT BROUGHT OUT AT THIS HEARING THAT JOYCE ROBERTS HAD
ATTEMPTED TO COMMIT SUICIDE SHORTLY BEFORE THE HEARING? 

"MR. KARDY:  JUST A MINUTE, MR. ADAMS.  OBJECT. 

"THE COURT:  SUSTAINED. 

     *         *  *         *         * 

"Q.  WAS IT BROUGHT OUT AT THIS HEARING THAT IN LATE AUGUST OF 1961
JOYCE ROBERTS HAD ACCUSED TWO MEN OF RAPING HER? 

"MR. KARDY (TO THE WITNESS):  JUST A MINUTE.  OBJECT. 

"THE COURT:  SUSTAINED. 

     *         *         *         *         * 

"Q.  DID YOU SPEAK, BY TELEPHONE OR OTHERWISE, WITH A PSYCHIATRIST BY
THE NAME OF DR. ALEXANDER DOUDOUMOPOULIS? 

     *         *         *         *         * 

"A.  YES. 

     *         *         *    *         * 

"Q.  DID HE GIVE YOU ANY INFORMATION REGARDING THE MENTAL CONDITION
OR MENTAL HEALTH OF JOYCE ROBERTS IN THIS CONVERSATION THAT YOU HAD
WITH HIM? 

"A.  DID HE - YES, REGARDING THE MENTAL HEALTH, YES. 

"Q.  WHAT WAS THE INFORMATION THAT HE GAVE YOU REGARDING JOYCE
ROBERTS' MENTAL HEALTH IN THIS CONVERSATION? 

"MR. KARDY:  JUST A MINUTE.  OBJECT, YOUR HONOR. 

"THE COURT:  SUSTAINED." 

THE PRESIDING JUDGE SEEMS TO HAVE CLOSED OFF MR. ADAMS AS A SOURCE OF
INFORMATION ON THE GROUND THAT HE HAD NO OTHER CHOICE UNDER RULE 922 OF
THE MARYLAND RULES OF PROCEDURE GOVERNING JUVENILE CAUSES.  THE RULE
SPECIFIES THAT: 

"A PERSON HAVING A DIRECT INTEREST IN A CASE MAY EXAMINE ANY PART OF
THE RECORD THEREOF, EXCEPT MEDICAL AND CASE HISTORIES AND OTHER REPORTS
WHICH THE COURT MAY DESIGNATE CONFIDENTIAL.  SUCH A PERSON MAY ALSO
EXAMINE SUCH HISTORIES AND CONFIDENTIAL REPORTS WITH PRIOR WRITTEN
PERMISSION OF THE COURT.  THE COURT MAY, HOWEVER, FROM TIME TO TIME,
DESIGNATE BY GENERAL ORDERS PERSONS OR AGENCIES WHO MAY INSPECT ANY
RECORD, OR SPECIFIC CLASSES OF RECORDS, WITHOUT ADDITIONAL WRITTEN
PERMISSION.  EXCEPT AS PROVIDED HEREIN, NO OTHER PERSON MAY EXAMINE ANY
JUVENILE RECORD, INCLUDING THE DOCKET, WITHOUT PRIOR WRITTEN PERMISSION
OF THE COURT."  MD.  ANN. CODE, C. 900, RULE 922. 

AT THE POST-CONVICTION HEARING, THE PETITIONERS HELD AN AUTHORIZATION
OF THE JUVENILE COURT TO EXAMINE THE RECORDS CONCERNING THE SEPTEMBER
5, 1961, HEARING.  THE AUTHORIZATION INCLUDED PERMISSION TO "MAKE
AVAILABLE SAID RECORDS FOR USE, INCLUDING INTRODUCTION INTO EVIDENCE
...  AND TO ANY PERSONS WITH KNOWLEDGE THEREOF TO TESTIFY ABOUT ANY
ASPECT OF THE PROCEEDINGS  ...  INVOLVING SAID JOYCE CAROL ROBERTS." 
(FN5)  THE PRESIDING JUDGE IN THE POST-CONVICTION HEARING WAS OF THE
VIEW THAT RULE 922 ALLOWED THE JUVENILE COURT ONLY THE POWER TO MAKE
THE RECORD AVAILABLE FOR EXAMINATION, NOT TO "PUT IT IN EVIDENCE."  SEE
VOL. I, POST-CONVICTION HEARING TRANSCRIPT, AT 66.  THIS, OF COURSE,
DOES NOT EXPLAIN WHY THE JUDGE HIMSELF DID NOT EXAMINE THE RECORD, AS
HE HAD EXPRESSLY BEEN AUTHORIZED TO DO BY THE JUVENILE COURT.  HAD THE
JUDGE MADE SUCH AN EXAMINATION, HE MIGHT HAVE CONCLUDED THAT HIS
DECISION REGARDING THE ADMISSIBILITY OF THE RECORD AND OF TESTIMONY BY
WITNESSES WHO HAD ATTENDED THE HEARING WOULD REQUIRE A MORE COMPLETE
CONSIDERATION OF THE PURPOSE OF AND POLICIES SERVED BY RULE 922.  AND
IN ANY EVENT - ALTHOUGH THIS IS A MATTER OF MARYLAND LAW ABOUT WHICH I
AM NOT AT ALL SURE - THE RULE WOULD NOT SEEM TO BE A BAR TO TESTIMONY
BY THOSE WHO HAD ATTENDED THE JUVENILE COURT HEARING WHEN ASKED
QUESTIONS CONCERNING INFORMATION OBTAINED OUTSIDE THE JUVENILE COURT
HEARING.  IF I AM CORRECT IN THIS REGARD, THE RULE COULD NOT STAND IN
THE WAY OF TESTIMONY BY DR. CONNOR AS TO HIS CONVERSATIONS WITH DR.
DOUDOUMOPOULIS, OR AS TO HIS CONVERSATIONS WITH THE MONTGOMERY COUNTY
POLICE OFFICER, OR AS TO ANY CONVERSATIONS EITHER OF THE DOCTORS MIGHT
HAVE HAD WITH MR. LYNN ADAMS OUTSIDE THE JUVENILE COURT HEARING.  AN
ADDITIONAL MATTER RAISES MY DOUBTS FURTHER ABOUT THE FORCE WHICH RULE
922 SHOULD HAVE HAD AT THE POST-CONVICTION HEARING.  THE STATE HAS
SINCE SUPPLIED THIS COURT WITH WHAT IS APPARENTLY THE COMPLETE FILE AND
RECORD OF THE SEPTEMBER 5, 1961, JUVENILE COURT PROCEEDINGS INVOLVING
THE COMPLAINING WITNESS.  THE STATE APPARENTLY NO LONGER CONSIDERS RULE
922 A BAR TO JUDICIAL CONSIDERATION OF THESE ITEMS.  I DO NOT WISH TO
SUGGEST THAT THE PRESIDING JUDGE'S EXCLUSION OF THE JUVENILE COURT
RECORD, AND OF POSSIBLE TESTIMONY OF ADAMS, WHALEN, CONNOR, AND
DOUDOUMOPOULIS WAS NECESSARILY INCORRECT.  BUT THE DUTY TO MAKE THAT
DECISION AND THE RIGHT TO MAKE IT IN THE FIRST INSTANCE BELONGS TO THE
MARYLAND COURT, AND MY POINT SIMPLY IS THAT THE CIRCUMSTANCES OF THE
POST-CONVICTION HEARING IN THIS CASE COMPEL A MORE COMPLETE
CONSIDERATION OF THE ISSUE. 

THERE IS ANOTHER MATTER FOR THE CONSIDERATION OF THE MARYLAND COURT:
THE PROSECUTING ATTORNEY OF MONTGOMERY COUNTY WAS NOT CHARGED WITH THE
KNOWLEDGE OF PRINCE GEORGE'S COUNTY OFFICERS BUT HE WAS CHARGED WITH
WHAT THE POLICE OFFICERS OF MONTGOMERY COUNTY KNEW.  WAS HE ALSO
CHARGED WITH THE KNOWLEDGE OF OTHER MONTGOMERY COUNTY OFFICIALS SUCH AS
LYNN ADAMS, AND, TO THE EXTENT OF THEIR INVOLVEMENT WITH MONTGOMERY
COUNTY AGENCIES, DR. CONNOR AND DR. DOUDOUMOPOULIS? 

IN THE END, ANY ALLEGATION OF SUPPRESSION BOILS DOWN TO AN ASSESSMENT
OF WHAT THE STATE KNOWS AT TRIAL IN COMPARISON TO THE KNOWLEDGE HELD BY
THE DEFENSE.  IT WOULD SEEM THAT THE MARYLAND COURT OF APPEALS WOULD
REVERSE AS UNCONSTITUTIONAL A CONVICTION IN A TRIAL THAT INCLUDED
SUPPRESSION OF EVIDENCE TENDING TO PROVE NYMPHOMANIA, OR MORE
COMPREHENSIVELY, SUPPRESSION OF EVIDENCE CONCERNING THE MENTAL
CONDITION OF THE COMPLAINING WITNESS AND THE INTERRELATED ISSUES OF HER
CONSENT AND CREDIBILITY.  IF SUCH IS THE CASE, IT WOULD BE HELPFUL TO
HAVE THE MARYLAND COURT OF APPEALS' VIEWS AS TO WHETHER ON THIS RECORD
THE PETITIONERS HAVE BEEN AFFORDED A FULL AND FAIR HEARING ON THIS
ISSUE. 

FN1  THE FACT THAT PETITIONERS' COUNSEL AT TRIAL HAD KNOWLEDGE OF THE
POLICE REPORTS IS OF COURSE RELEVANT.  AT THE POST-CONVICTION HEARING
THE TRIAL COUNSEL, MR. PRESCOTT, WAS QUESTIONED CONCERNING HIS
KNOWLEDGE OF THE POLICE REPORTS. 

"Q.  MR. PRESCOTT, AFTER YOUR APPOINTMENT AS COUNSEL FOR THE GILES
BOYS IN THIS CASE, DID YOU COME TO SEE ME, AS STATE'S ATTORNEY, TO
DISCUSS THE CASE? 

"A.  I DID. 

"Q.  AND WOULD YOU RELATE TO HIS HONOR WHAT THAT DISCUSSION CONSISTED
OF AND WHAT, IF ANYTHING, I LET YOU SEE AND HAVE IN THE CASE? 

"A.  YOU LET ME HAVE YOUR ENTIRE FILE AS I RECALL  ...  . 

"Q.  AND BY THE ENTIRE FILE, DID I LET YOU READ THE POLICE REPORT IN
ITS ENTIRETY, SIR? 

"A.  YOU DID. 

     *         *         *         *         * 

"THE COURT:  MR. PRESCOTT, I UNDERSTOOD YOU TO SAY THAT MR. KARDY,
WHILE YOU WERE PREPARING FOR THE TRIAL AND BEFORE TRIAL, LET YOU SEE
HIS COMPLETE FILE, INCLUDING THE POLICE REPORTS? 

"THE WITNESS:  THAT IS CORRECT, YOUR HONOR. 

"THE COURT:  AND YOU ARE SATISFIED THAT MR. KARDY DID SHOW YOU THE
POLICE REPORTS, WHICH HE DIDN'T HAVE TO DO? 

"THE WITNESS:  WELL, I AM NOT SURE HE DIDN'T HAVE TO, BUT HE DID SHOW
THEM TO ME, YOUR HONOR."  TRANSCRIPT OF POST-CONVICTION HEARING, VOL.
II, 11, 13. 

FN2 THE DEPOSITION WAS CONDUCTED BY THE SAME JUDGE WHO PRESIDED AT
THE POST-CONVICTION HEARING. 

FN3  IN THE COURSE OF THE POST-CONVICTION HEARING, THE DEFENDANTS
ALSO ATTEMPTED TO PROBE THE RELATIONSHIP BETWEEN THE MENTAL CONDITION
OF THE COMPLAINING WITNESS AND HER CREDIBILITY THROUGH QUESTIONS PUT TO
DR. FREDERIC SOLOMON, A QUALIFIED PSYCHIATRIST. 

"Q.  DOCTOR, DO YOU HAVE AN OPINION ABOUT HOW THE MENTAL ILLNESS,
WHICH YOU HAVE DESCRIBED, WOULD AFFECT THE CREDIBILITY OF A WITNESS
ABOUT THE KIND OF CIRCUMSTANCES WHICH I DESCRIBED, THAT IS, AN
INTENSELY PERSONAL SITUATION IN WHICH PERSONAL MOTIVATIONS WERE
INVOLVED? 

"MR. KARDY:  OBJECT. 

"THE COURT:  YOU CAN ANSWER IT MERELY YES OR NO. 

"THE WITNESS:  YES. 

"MR. WITT:  WHAT IS THAT OPINION? 

"MR. KARDY:  OBJECT. 

"THE COURT:  SUSTAINED. 

"MR. WITT:  YOUR HONOR, I OFFER TO PROVE THAT HIS OPINION WOULD BE
THAT THE MENTAL ILLNESS WHICH HE HAS DESCRIBED WOULD SUBSTANTIALLY
AFFECT THE CREDIBILITY OF SUCH A PERSON ABOUT SUCH AN INCIDENT. 

"THE COURT:  WELL, I NEVER HEARD OF SUCH A RULE.  I SUSTAINED THE
OBJECTION.  IT'S UP TO A JURY TO DETERMINE THE CREDIBILITY.  HOW CAN WE
TAKE AND LET A MAN, AFTER A TRIAL HAS OCCURRED, COME IN AND SAY THE
CREDIBILITY WAS NO GOOD?"  TRANSCRIPT OF POST-CONVICTION HEARING, VOL.
II, 64. 

FN4  THIS DEPOSITION PROCEEDING WAS ALSO CONDUCTED BY THE SAME JUDGE
WHO PRESIDED AT THE POST-CONVICTION HEARING. 

FN5  THIS DOCUMENT IS INCLUDED IN THE RECORD AT PAGE 274. 

MR. JUSTICE FORTAS, CONCURRING IN THE JUDGMENT. 

I CONCUR IN THE COURT'S JUDGMENT IN THIS IMMENSELY TROUBLING CASE,
BUT I DO SO FOR THE REASONS WHICH LED THE MONTGOMERY COUNTY CIRCUIT
COURT TO ORDER A NEW TRIAL. 

ON PETITIONERS' MOTION FOR POST-CONVICTION RELIEF, JUDGE MOORMAN OF
THE CIRCUIT COURT SUSTAINED THE CLAIM THAT THE PROSECUTION HAD VIOLATED
THEIR FEDERALLY PROTECTED RIGHT TO DUE PROCESS OF LAW WHEN IT FAILED TO
DISCLOSE TO DEFENSE COUNSEL EVIDENCE, KNOWN TO THE PROSECUTION,
CONCERNING TWO INCIDENTS WHICH OCCURRED ABOUT ONE MONTH AFTER THE CRIME
CHARGED TO THEM AND FOUR MONTHS PRIOR TO TRIAL.  THESE INCIDENTS WERE:
(1) THE PROSECUTRIX' SEXUAL ENCOUNTER WITH TWO BOYS AT A PARTY,
FOLLOWED BY THE FILING AND EVENTUAL DROPPING OF A RAPE CHARGE; AND (2)
HER ATTEMPTED SUICIDE WITHIN HOURS OF THE FOREGOING INCIDENT AND HER
ENSUING HOSPITALIZATION FOR PSYCHIATRIC EXAMINATION.  THE CIRCUIT COURT
RULED THAT THE INFORMATION COULD "BE REASONABLY CONSIDERED ADMISSIBLE
AND USEFUL TO THE DEFENSE," THAT IN CONSEQUENCE THE PROSECUTION WAS
UNDER A DUTY TO DISCLOSE, AND THAT ITS OMISSION TO DO SO REQUIRED A NEW
TRIAL.    THE MARYLAND COURT OF APPEALS REVERSED.  IT HELD THAT, EVEN
IF ADMISSIBLE, THE EVIDENCE IN QUESTION WAS INSUFFICIENTLY
"EXCULPATORY" TO WARRANT A NEW TRIAL.  THE ATTEMPTED SUICIDE WAS
SHUNTED ASIDE ON THE GROUND THAT ITS "PROBATIVE VALUE" WAS NOT SUCH AS
TO AFFECT EITHER THE COMPETENCE OR CREDIBILITY OF THE PROSECUTRIX AS A
WITNESS.  BOTH IT AND THE RAPE CLAIM WERE DISPOSED OF ON THE ASSERTION
THAT "SPECIFIC ACTS OF MISCONDUCT" ARE NOT ADMISSIBLE TO IMPEACH
CREDIBILITY, AND THAT "THE ONLY POSSIBLE USE OF THE FACTS SURROUNDING
THE ALLEGED RAPE CLAIM WOULD BE FOR PURPOSES OF SHOWING THE UNCHASTITY
OF THE PROSECUTRIX, A FACT THAT WAS ALREADY KNOWN TO THE DEFENSE AT THE
TIME OF THE RAPE TRIAL." 

JUDGES OPPENHEIMER AND HAMMOND DISSENTED.  THEY NOTED THAT THE
ALLEGED RAPE CLAIM AND ITS ABANDONMENT MIGHT WELL HAVE BEEN USEFUL IN
CORROBORATING THE PETITIONERS' ACCOUNT OF WHAT HAPPEND, THAT NO
MARYLAND EVIDENTIARY RULE RENDERED INADMISSIBLE IN A RAPE PROSECUTION
EVIDENCE THAT THE PROSECUTRIX SUFFERED FROM A MENTAL OR EMOTIONAL
DISTURBANCE SHORT OF "INSANITY," AND THAT IN ANY EVENT THESE BITS OF
INFORMATION MIGHT HAVE FURNISHED THE DEFENSE WITH IMPORTANT LEADS TO
OTHER AND MORE POTENT EVIDENCE.  THE DISSENTERS ASSERTED THAT THE
MAJORITY ERRONEOUSLY SUBSTITUTED ITS APPRAISAL OF THE WEIGHT TO BE
ATTACHED TO THE SUPPRESSED EVIDENCE FOR A JURY'S POSSIBLE EVALUATION,
AND THAT IT ERRED IN APPLYING TOO STRINGENT A TEST OF ADMISSIBILITY. 

I DO NOT AGREE THAT THE STATE MAY BE EXCUSED FROM ITS DUTY TO
DISCLOSE MATERIAL FACTS KNOWN TO IT PRIOR TO TRIAL SOLELY BECAUSE OF A
CONCLUSION THAT THEY WOULD NOT BE ADMISSIBLE AT TRIAL.  (FN1) THE
STATE'S OBLIGATION IS NOT TO CONVICT, BUT TO SEE THAT, SO FAR AS
POSSIBLE, TRUTH EMERGES.  THIS IS ALSO THE ULTIMATE STATEMENT OF ITS
RESPONSIBILITY TO PROVIDE A FAIR TRIAL UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  NO RESPECTABLE INTEREST OF THE STATE IS
SERVED BY ITS CONCEALMENT OF INFORMATION WHICH IS MATERIAL, GENEROUSLY
CONCEIVED, IN THE CASE, INCLUDING ALL POSSIBLE DEFENSES. 

THIS IS NOT TO SAY THAT CONVICTIONS OUGHT TO BE REVERSED ON THE
GROUND THAT INFORMATION MERELY REPETITIOUS, CUMULATIVE, OR EMBELLISHING
OF FACTS OTHERWISE KNOWN TO THE DEFENSE OR PRESENTED TO THE COURT, OR
WITHOUT IMPORTANCE TO THE DEFENSE FOR PURPOSES OF THE PREPARATION OF
THE CASE OR FOR TRIAL WAS NOT DISCLOSED TO DEFENSE COUNSEL.  IT IS NOT
TO SAY THAT THE STATE HAS AN OBLIGATION TO COMMUNICATE PRELIMINARY,
CHALLENGED, OR SPECULATIVE INFORMATION.  BUT THIS IS NOT THAT CASE. 
PETITIONERS WERE IN TRIAL FOR THEIR LIVES.  THE INFORMATION WAS
SPECIFIC, FACTUAL, AND CONCRETE, ALTHOUGH ITS IMPLICATIONS MAY BE
HIGHLY DEBATABLE.  THE CHARGE WAS RAPE, AND, ALTHOUGH THE CIRCUMSTANCES
OF THIS CASE SEEM TO NEGATE THE POSSIBILITY OF CONSENT, THE INFORMATION
WHICH THE STATE WITHHELD WAS DIRECTLY RELATED TO THAT DEFENSE. 
PETITIONERS' FATE TURNED ON WHETHER THE JURY BELIEVED THEIR STORY THAT
THE PROSECUTRIX HAD CONSENTED, RATHER THAN HER CLAIM THAT SHE HAD BEEN
RAPED.  IN THIS CONTEXT, IT WAS A VIOLATION OF DUE PROCESS OF LAW FOR
THE PROSECUTION TO WITHHOLD EVIDENCE THAT A MONTH AFTER THE CRIME OF
WHICH PETITIONERS WERE ACCUSED THE PROSECUTRIX HAD INTERCOURSE WITH TWO
MEN IN CIRCUMSTANCES SUGGESTING CONSENT ON HER PART, AND THAT SHE TOLD
A POLICEMAN - BUT LATER RETRACTED THE CHARGE - THAT THEY HAD RAPED
HER.  THE DEFENSE SHOULD HAVE BEEN ADVISED OF HER SUICIDE ATTEMPT AND
COMMITMENT FOR PSYCHIATRIC OBSERVATION, FOR EVEN IF THESE SHOULD BE
CONSTRUED AS MERELY PRODUCTS OF THE SAVAGE MISTREATMENT OF THE GIRL BY
PETITIONERS, RATHER THAN AS INDICATING A QUESTION AS TO THE GIRL'S
CREDIBILITY, THE DEFENSE WAS ENTITLED TO KNOW. 

THE STORY OF THE PROSECUTRIX IS A TRAGIC ONE.  BUT OUR TOTAL LACK OF
SYMPATHY FOR THE KIND OF PHYSICAL ASSAULT WHICH IS INVOLVED HERE MAY
NOT LEAD US TO CONDONE STATE SUPPRESSION OF INFORMATION WHICH MIGHT BE
USEFUL TO THE DEFENSE. 

WITH REGRET BUT UNDER COMPULSION OF THE NATURE AND IMPACT OF THE
ERROR COMMITTED, I WOULD VACATE THE JUDGMENT OF CONVICTION AND REQUIRE
THE CASE TO BE RETRIED.  IN VIEW OF THE CONCLUSIONS OF MY BRETHREN,
HOWEVER, I CONCUR IN THE JUDGMENT OF THE COURT SENDING THIS CASE BACK
TO THE COURT OF APPEALS FOR RECONSIDERATION. 

ADDENDUM:  MY BROTHER HARLAN HAS ADDRESSED A SECTION OF HIS DISSENT
TO MY CONCURRING OPINION.  THIS DISCLOSES A BASIC DIFFERENCE BETWEEN US
WITH RESPECT TO THE STATE'S RESPONSIBILITY UNDER THE FAIR-TRIAL
REQUIREMENT OF THE FOURTEENTH AMENDMENT.  I BELIEVE THAT DELIBERATE
CONCEALMENT AND NONDISCLOSURE BY THE STATE ARE NOT TO BE DISTINGUISHED
IN PRINCIPLE FROM MISREPRESENTATION.  THIS COURT SO HELD IN BRADY V.
MARYLAND, 373 U.S. 83 (1963).  MR. JUSTICE HARLAN CONCEDES THAT THE
STATE MAY NOT KNOWINGLY USE PERJURED TESTIMONY OR ALLOW IT TO REMAIN
UNCORRECTED.  HE ASSERTS THAT THIS SATISFIES "IN FULL" THE REQUIREMENTS
OF THE FOURTEENTH AMENDMENT, AND SUGGESTS THAT AN EXTENSION OF THESE
PRINCIPLES IS NEITHER NECESSARY NOR ADVISABLE.  THIS SUGGESTS THAT THE
STATE IS NEVER OBLIGATED TO TAKE THE INITIATIVE TO DISCLOSE EVIDENCE
UNLESS ITS NATURE IS SUCH AS TO IMPEACH EVIDENCE THAT THE STATE HAS
OFFERED.  I ASSUME THAT MR. JUSTICE HARLAN WOULD APPLY THIS PRINCIPLE,
EVEN THOUGH THE INFORMATION MIGHT, IN THE HANDS OF DEFENSE COUNSEL,
SPELL THE DIFFERENCE BETWEEN DEATH AND EXONERATION OF THE DEFENDANT.  I
CANNOT SUBSCRIBE TO THIS.  A CRIMINAL TRIAL IS NOT A GAME IN WHICH THE
STATE'S FUNCTION IS TO OUTWIT AND ENTRAP ITS QUARRY.  THE STATE'S
PURSUIT IS JUSTICE, NOT A VICTIM.  IF IT HAS IN ITS EXCLUSIVE
POSSESSION SPECIFIC, CONCRETE EVIDENCE WHICH IS NOT MERELY CUMULATIVE
OR EMBELLISHING AND WHICH MAY EXONERATE THE DEFENDANT OR BE OF MATERIAL
IMPORTANCE TO THE DEFENSE - REGARDLESS OF WHETHER IT RELATES TO
TESTIMONY WHICH THE STATE HAS CAUSED TO BE GIVEN AT THE TRIAL - THE
STATE IS OBLIGED TO BEING IT TO THE ATTENTION OF THE COURT AND THE
DEFENSE.  FOR EXAMPLE, LET US ASSUME THAT THE STATE POSSESSES
INFORMATION THAT BLOOD WAS FOUND ON THE VICTIM, AND THAT THIS BLOOD IS
OF A TYPE WHICH DOES NOT MATCH THAT OF THE ACCUSED OR OF THE VICTIM. 
LET US ASSUME THAT NO RELATED TESTIMONY WAS OFFERED BY THE STATE.  I
UNDERSTAND MY BROTHER HARLAN'S COMMENTS TO MEAN THAT HE WOULD NOT
REQUIRE THE STATE TO DISCLOSE THIS INFORMATION.  HE WOULD APPARENTLY
REGARD MILLER V. PATE, ANTE, P. 1, AS THE OUTER LIMIT OF THE STATE'S
DUTY.  THERE THE PROSECUTION DRAMATICALLY USED A PAIR OF SHORTS,
MISREPRESENTED AS SATURATED WITH BLOOD, TO SECURE A CONVICTION.  I
CANNOT ACQUIESCE THAT THIS IS THE END OF THE STATE'S DUTY UNDER THE
CONSTITUTION.  NONDISCLOSURE - DELIBERATE WITHHOLDING - OF IMPORTANT
INFORMATION OF THE TYPE DESCRIBED, WHICH IS IN THE EXCLUSIVE POSSESSION
OF THE STATE IS, IN MY JUDGMENT, NOT RECONCILABLE WITH THE CONCEPT OF A
FAIR TRIAL AND WITH THE DUE PROCESS CLAUSE.  I CAN READILY SEE THAT
DIFFERENCES OF OPINION MIGHT EXIST AS TO WHETHER THE NATURE OF
PARTICULAR EVIDENCE IS SUCH THAT NONDISCLOSURE OF IT SHOULD RESULT IN
SETTING ASIDE A CONVICTION.  BUT I DO NOT ACCEPT THE NOTION THAT ONLY
WHERE THE EFFECT OF WITHHOLDING EVIDENCE IS TO ALLOW PERJURED TESTIMONY
TO STAND UNCORRECTED IS THERE A DUTY TO DISCLOSE.  IN MY VIEW, A
SUPPORTABLE CONVICTION REQUIRES SOMETHING MORE THAN THAT THE STATE DID
NOT LIE.  IT IMPLIES THAT THE PROSECUTION HAS BEEN FAIR AND HONEST AND
THAT THE STATE HAS DISCLOSED ALL INFORMATION KNOWN TO IT WHICH MAY HAVE
A CRUCIAL OR IMPORTANT EFFECT ON THE OUTCOME. 

THE NEWLY AMENDED RULE 16 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
HAS LITTLE TO DO WITH THE MATTER NOW BEFORE THE COURT.  ON ITS FACE,
THE RULE IS DIRECTED TO THE RELATIVELY LIMITED PROBLEM OF PRETRIAL
DISCOVERY AND INSPECTION IN THE FEDERAL COURTS.  WHETHER RULE 16 IS
ADEQUATE EVEN FOR ITS PURPOSES IS THE SUBJECT OF DIFFERENCES OF
OPINION.  BUT IT DOES NOT PURPORT TO EXHAUST THE PROSECUTION'S DUTY. 
MR. JUSTICE HARLAN APPARENTLY FINDS NO INCONSISTENCY BETWEEN
PROSCRIPTION OF THE PROSECUTION'S KNOWING USE OR ACQUIESCENCE IN THE
USE OF PERJURED TESTIMONY  (FN2)  AND RULE 16'S SILENCE ON THAT
SUBJECT.  I FIND NONE IN THE REQUIREMENT, RECOGNIZED BY THIS COURT IN
BRADY V. MARYLAND, SUPRA, THAT THE STATE APPRISE THE DEFENDANT OF
INFORMATION OF THE SORT DESCRIBED HEREIN, AND THE RULE'S OMISSION OF
SUCH A REQUIREMENT.  MY POINT RELATES, NOT TO THE DEFENDANT'S DISCOVERY
OF THE PROSECUTION'S CASE FOR PURPOSES OF PREPARATION OR AVOIDANCE OF
SURPRISE, WHICH IS DEALT WITH IN RULE 16, BUT WITH THE STATE'S
CONSTITUTIONAL DUTY, AS I SEE IT, VOLUNTARILY TO DISCLOSE MATERIAL IN
ITS EXCLUSIVE POSSESSION WHICH IS EXONERATIVE OR HELPFUL TO THE DEFENSE
- WHICH THE STATE WILL NOT AFFIRMATIVELY USE TO PROVE GUILT - AND WHICH
IT SHOULD NOT CONCEAL.  BRADY INVOLVED NEITHER THE KNOWING USE OF
PERJURED TESTIMONY NOR ACQUIESCENCE IN ITS USE.  NEVERTHELESS, BOTH THE
MARYLAND COURT OF APPEALS AND THIS COURT CONCLUDED THAT THE
PROSECUTOR'S CONDUCT IN WITHHOLDING INFORMATION MATERIAL TO GUILT OR
PUNISHMENT, INFORMATION WHICH DEFENSE COUNSEL HAD UNSUCCESSFULLY
REQUESTED, VIOLATED DUE PROCESS.  ALTHOUGH THIS COURT INCLUDED IN ITS
STATEMENT OF THE CONTROLLING PRINCIPLE A REFERENCE TO COUNSEL'S REQUEST
- "WE NOW HOLD THAT THE SUPPRESSION BY THE PROSECUTION OF EVIDENCE
FAVORABLE TO AN ACCUSED UPON REQUEST VIOLATES DUE PROCESS WHERE THE
EVIDENCE IS MATERIAL EITHER TO GUILT OR TO PUNISHMENT, IRRESPECTIVE OF
THE GOOD FAITH OR BAD FAITH OF THE PROSECUTION  ...  ."  (FN3)  - I SEE
NO REASON TO MAKE THE RESULT TURN ON THE ADVENTITIOUS CIRCUMSTANCE OF A
REQUEST.  IF THE DEFENSE DOES NOT KNOW OF THE EXISTENCE OF THE
EVIDENCE, IT MAY NOT BE ABLE TO REQUEST ITS PRODUCTION.  A MURDER TRIAL
- INDEED ANY CRIMINAL PROCEEDING - IS NOT A SPORTING EVENT. 

FN1  IN GRIFFIN V. UNITED STATES, 336 U.S. 704, 707-709 (1949), THIS
COURT REMANDED A CASE FOR RECONSIDERATION OF A RULING THAT CERTAIN
EVIDENCE WITHHELD BY THE PROSECUTION WAS INADMISSIBLE.  ON REMAND, A
NEW RULE OF ADMISSIBILITY WAS FORMULATED AND A NEW TRIAL ORDERED. 
GRIFFIN V. UNITED STATES, 87 U.S. APP. D.C. 172, 183 F.2D 990 (1950). 

FN2  ALCORTA V. TEXAS, 355 U.S. 28 (1957); NAPUE V. ILLINOIS, 360
U.S. 264 (1959); MOONEY V. HOLOHAN, 294 U.S. 103 (1935). 

FN3  373 U.S., AT 87. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK, MR. JUSTICE CLARK AND MR.
JUSTICE STEWART JOIN, DISSENTING. 

THE DISPOSITION OF THIS CASE, THE PRODUCT OF THREE OPINIONS, NONE OF
WHICH COMMANDS THE THE VOTES OF A MAJORITY OF THE COURT, IS WHOLLY OUT
OF KEEPING WITH THE CONSTITUTIONAL LIMITATIONS UPON THIS COURT'S ROLE
IN THE REVIEW OF STATE CRIMINAL CASES.  FOR REASONS THAT FOLLOW, I
DISSENT. 

ON THE BASIS OF THE TRIAL RECORD, IT WOULD BE DIFFICULT TO IMAGINE
CHARGES MORE CONVINCINGLY PROVED THAN WERE THOSE AGAINST THESE THREE
YOUTHS FOR RAPING THIS TEENAGE GIRL.  (FN1)  FOLLOWING CONVICTION,
INFORMATION CAME TO LIGHT WHICH SERIOUSLY REFLECTED ON THE SEXUAL
HABITS OF THE GIRL AND ON THE STABILITY OF HER CHARACTER.  THESE
REVELATIONS WERE MADE THE BASIS OF A STATE POST-CONVICTION PROCEEDING,
PREMISED ON THE CLAIM THAT IN FAILING TO DISCLOSE THESE DATA AT THE
TIME OF TRIAL THE PROSECUTION HAD BEEN GUILTY OF A DELIBERATE
SUPPRESSION OF MATERIAL EVIDENCE AND THE KNOWING USE OF PERJURED
TESTIMONY.  THE POST-CONVICTION JUDGE FOUND AGAINST THOSE CLAIMS, BUT
NONETHELESS ORDERED A NEW TRIAL, HOLDING THAT THE DATA, WHICH HE DEEMED
WOULD HAVE BEEN ADMISSIBLE AND USEFUL TO THE DEFENSE, SHOULD HAVE BEEN
DISCLOSED BY THE AUTHORITIES.  THE COURT OF APPEALS OF MARYLAND,
HOLDING AS A MATTER OF STATE LAW THAT THIS MATERIAL WAS NOT SUCH AS TO
JUSTIFY A NEW TRIAL, REVERSED.  THIS COURT, WITHOUT FINDING ANY
CONSTITUTIONAL FLAW IN THE STATE PROCEEDINGS, AND INDEED EXPRESSLY
RECOGNIZING THAT UPON THE FACTS AS FOUND BY THE STATE COURTS,
PETITIONERS' NONDISCLOSURE CLAIM GIVES RISE TO NO FEDERAL QUESTION
UNDER EXISTING LAW, NOW RETURNS THE CASE TO THE MARYLAND COURT OF
APPEALS FOR WHAT AMOUNTS TO NOTHING MORE THAN RECONSIDERATION. 

THE PLURALITY AND ONE OF THE CONCURRING OPINIONS URGE ENTIRELY
DIFFERENT REASONS FOR REMANDING THE CASE IN THIS FASHION, AND WILL THUS
OBLIGE THE COURTS OF MARYLAND TO RECONSIDER A SERIES OF WHOLLY
UNRELATED ISSUES.  THE PLURALITY OPINION AND MY BROTHER WHITE'S
CONCURRING OPINION HAVE ONLY TWO COMMON DENOMINATORS; NEITHER CAN
IDENTIFY ANY FEDERAL BASIS FOR THIS DISPOSITION, AND BOTH ARE CONCERNED
WITH QUESTIONS WHICH HAVE BEEN REPEATEDLY CONSIDERED BY THE STATE
COURTS.  EACH OF THE THREE OPINIONS REQUIRES DISCRETE TREATMENT, BUT I
HAVE CONCLUDED, FOR THE REASONS WHICH FOLLOW, THAT NONE OF THEM OFFERS
ANY BASIS ON WHICH THE COURT MAY PROPERLY RETURN THIS CASE TO THE
MARYLAND COURTS. 

                                 I. 

I TURN FIRST TO THE REASONS ADVANCED BY THE PLURALITY OPINION.  THE
UNUSUAL DISPOSTION MADE OF THIS CASE BY THE PLURALITY IS BOTTOMED UPON
MATERIALS ENTIRELY OUTSIDE THE RECORD BEFORE US, FURNISHED TO THIS
COURT AFTER THE CASE WAS SUBMITTED, UNDER THE LEVERAGE OF INQUIRIES PUT
FROM THE BENCH DURING THE ARGUMENT.  THE MATERIALS ARE TWO PRE
INDICTMENT POLICE REPORTS, THE MONTGOMERY COUNTY OFFICERS' REPORT AND
THE SUPPLEMENTARY OFFENSE REPORT.  IT SEEMS TO ME ENTIRELY IMPROPER FOR
THIS COURT TO "RETRY" STATE CRIMINAL CASES IN ITS OWN COURTROOM, AND
THEN TO RETURN THEM FOR RECONSIDERATION IN LIGHT OF MATERIALS
"DISCOVERED" OUTSIDE THE RECORD DURING THAT PROCESS.  EVEN APART FROM
THAT REGRETTABLE PRACTICE, THE REMAND OF THIS CASE IS THE MORE
REMARKABLE BECAUSE THE MATERIALS ON WHICH THE PLURALITY RELIES ARE NOT
IN ANY SENSE NEWLY DISCOVERED.  THE FACT IS THAT THESE POLICE REPORTS
HAVE PLAYED A SIGNIFICANT ROLE THROUGHOUT THE STATE COURT PROCEEDINGS. 
THEY WERE MADE AVAILABLE TO DEFENSE COUNSEL AT THE ORIGINAL TRIAL
STAGE.  THEY WERE GIVEN TO AND CONSIDERED BY THE TRIAL JUDGE AT THE
TIME OF SENTENCE.  AND ALTHOUGH DEMANDED BY THE NEW DEFENSE COUNSEL IN
THE POST-CONVICTION PROCEEDING, THEIR PRODUCTION WAS DENIED UNDER A
STATE PROCEDURAL RULE WHICH APPARENTLY WAS NOT CONTESTED IN THE STATE
APPEAL, AND WHICH IS IN NO WAY NOW QUESTIONED BY THIS COURT FROM A
FEDERAL STANDPOINT.  IN CONSEQUENCE, THE ULTIMATE RATIONALE FOR THE
PLURALITY'S DISPOSITION OF THE CASE IS ITSELF SPECIOUS.    THE USE NOW
MADE OF THESE POLICE REPORTS IS EQUALLY UNSATISFACTORY.  THE
DISCREPANCIES WHICH THE PLURALITY FINDS BETWEEN THESE REPORTS AND THE
TRIAL TESTIMONY RELATE TO TWO EPISODES.  FIRST, THE GIRL, JOYCE, AND
HER COMPANION, FOSTER, APPARENTLY INITIALLY TOLD THE POLICE THAT THEY
WERE HAVING SEXUAL INTERCOURSE IN THEIR CAR WHEN THEY NOTICED THE
PRESENCE OF THE OTHER CAR, WHEREAS AT TRIAL FOSTER INTIMATED THAT HE
AND THE GIRL WERE SIMPLY SITTING IN THE REAR SEAT.  HE DENIED ELSEWHERE
THAT HE AND HIS FRIENDS HAD BROUGHT JOYCE OUT TO THE SPOT TO HAVE
SEXUAL RELATIONS WITH HER.  SECOND, ONE OF THE POLICE REPORTS IS
CONSTRUED TO SUGGEST THAT JOYCE HAD SAID THAT JOHN GILES DID NOT
PENETRATE HER, WHEREAS HER TRIAL TESTIMONY WAS THAT ALL THREE MEN HAD
RAPED HER.  THE PLURALITY ARGUES THAT THESE DISCREPANCIES, IF KNOWN TO
THE DEFENSE, MIGHT HAVE BEEN USED TO ESTABLISH THE GIRL'S REPUTATION
FOR PROMISCUITY, TO ATTACK THE CREDIBILITY OF PROSECUTION WITNESSES,
AND POSSIBLY TO EXONERATE PETITIONER JOHN GILES ENTIRELY.  IT EVEN
SUGGESTS THAT THE DEFENSE MIGHT HAVE SHOWN A DELIBERATE SUPPRESSION OF
EVIDENCE OR A CONSCIOUS FAILURE TO CORRECT PERJURED TESTIMONY. 

THE SHORT ANSWER TO ALL THIS IS, OF COURSE, THAT THE RECORD MAKES
PLAIN THAT DEFENSE COUNSEL AT THE TRIAL WAS GIVEN ACCESS TO THESE
POLICE REPORTS  (FN2)  AND THUS MUST BE TAKEN TO HAVE BEEN AWARE OF THE
VERY DISCREPANCIES OF WHICH THE PLURALITY NOW UNDERTAKES TO MAKE SO
MUCH.  THERE IS NO BASIS WHATEVER IN THE EVIDENCE BEFORE US FOR THE
PLURALITY'S INTIMATION THAT THE REPORTS SEEN BY COUNSEL MAY NOT HAVE
BEEN THOSE GIVEN TO THIS COURT OR FOR ITS THINLY VEILED SUGGESTION THAT
IN NOT MAKING USE OF THE SUPPLEMENTARY REPORT COUNSEL MAY HAVE BEEN
INCOMPETENT OR WORSE. 

BEYOND THIS, A MORE CAREFUL EXAMINATION THAN THE PLURALITY HAS GIVEN
THESE REPORTS AND THE RECORD WILL ITSELF DISSIPATE THE AURA OF
SUSPICION AND CONJECTURE WITH WHICH THIS CASE HAS NOW BEEN SURROUNDED. 
THE PLURALITY FIRST SUGGESTS THAT PERJURED TESTIMONY MAY HAVE BEEN
KNOWINGLY UTILIZED BY THE PROSECUTION TO ESTABLISH PENETRATION OF THE
GIRL BY JOHN GILES.  JOYCE INITIALLY TESTIFIED AT A PRETRIAL HEARING
THAT ONLY JOHNSON AND JAMES GILES HAD INTERCOURSE WITH HER.  (FN3)
LATER IN THE SAME HEARING SHE INCLUDED JOHN GILES, APPARENTLY WITH THE
EXPLANATION THAT SHE HAD FIRST BELIEVED THAT RAPE REQUIRES EMISSION AS
WELL AS PENETRATION.  AT TRIAL SHE TESTIFIED VERY SPECIFICALLY THAT
JOHN GILES HAD EFFECTED PENETRATION.  ON CROSS-EXAMINATION, SHE
CONCEDED THAT HER FIRST ACCOUNTS BOTH TO THE POLICE AND AT THE
PRELIMINARY HEARING INDICATED THAT ONLY TWO MEN HAD INTERCOURSE WITH
HER.  SHE AGAIN SUGGESTED THAT SHE HAD BEEN CONFUSED.  IN CONTRAST, THE
POLICE OFFICERS TESTIFED AT TRIAL THAT JOYCE HAD SAID IN QUESTIONING ON
JULY 21 THAT JOHN GILES HAD INTERCOURSE WITH HER.  THE SUPPOSED
INCONSISTENCIES AMONG ALL THESE ACCOUNTS WERE PLAIN BOTH TO DEFENSE
COUNSEL AND TO THE JURY.  (FN4) 

PETITIONERS ARGUED AT THE POST-CONVICTION PROCEEDING THAT THE POLICE
TESTIMONY WAS PERJURED, AND THAT JOYCE HAD INITIALLY SAID THAT JOHN
GILES DID NOT ATTACK HER.  THEY OFFERED, IN ADDITION TO JOYCE'S OWN
ADMISSIONS AT TRIAL, STATEMENTS FROM PETITIONERS' FATHER, MOTHER, AND
SISTER THAT A POLICEMAN HAD FIRST MENTIONED ONLY TWO ASSAILANTS TO
THEM.  IN A DEPOSITION HEARING, JOYCE SAID THAT SHE DID NOT RECALL EVER
CONCEDING AT TRIAL THAT ONLY TWO MEN HAD INTERCOURSE WITH HER.  JUDGE
MOORMAN CONCLUDED THAT JOYCE'S TERMINOLOGICAL CONFUSION ADEQUATELY
EXPLAINED THE SUPPOSED DISCREPANCIES WITH THE POLICE TESTIMONY. 
ALTHOUGH PETITIONERS HAVE NOT ARGUED THIS ISSUE HERE, THE PLURALITY NOW
POINTS TO THE SUPPLEMENTARY REPORT TO SUGGEST AGAIN THAT THE POLICE
EVIDENCE MIGHT HAVE BEEN PERJURED, AND REMANDS FOR WHAT IT QUITE
EVIDENTLY HOPES WILL RESULT IN ANOTHER HEARING ON THAT ISSUE. 

IT SEEMS APPARENT THAT THE REFERENCES TO THIS ISSUE IN THE
SUPPLEMENTARY REPORT ARE ENTIRELY EQUIVOCAL.  THE REPORT CONTAINS ONLY
THREE REFERENCES TO JOYCE'S STATEMENTS ON THIS QUESTION.  FIRST, JOYCE
IS REPORTED TO HAVE REPLIED, WHEN ASKED HOW MANY HAD INTERCOURSE WITH
HER, THAT "THE BIGGER ONE (JOHN) TRIED FIRST, THEN THE OTHER TWO." 
AGAIN, THE STATEMENT IS ATTRIBUTED TO HER, IN THE THIRD PERSON, THAT
JOHN "TRIED TO HAVE INTERCOURSE WITH HER BUT WAS UNABLE TO DO SO." 
FINALLY, SHE IS REPORTED TO HAVE SAID THAT JOHN GILES "TRIED TO INSERT"
BUT "COULD NOT GET" AN ERECTION.  THE REPORT INDICATES THAT JOHN GILES
WAS THE FIRST TO BEGIN TO REMOVE JOYCE'S CLOTHING, THAT HE KISSED HER,
AND THAT HE "TRIED" FOR SOME 10 MINUTES.  (FN5) 

IT MUST FIRST BE PLAIN THAT ALTHOUGH THESE REFERENCES ARE BRIEF AND
IMPRECISE, NOTHING IN THEM NECESSARILY EXCLUDES THE CONCLUSION THAT
JOHN GILES ACHIEVED PENETRATION, HOWEVER SLIGHT.  FURTHER, IT MUST BE
RECOGNIZED THAT THE FORM AND LANGUAGE OF THE SUPPLEMENTARY REPORT
INDICATE QUITE CLEARLY THAT IT WAS PREPARED RAPIDLY, UNDER THE URGENCY
OF THE EVENTS, AND WITHOUT ANY EXPECTATION THAT ITS EVERY WORD WOULD
NOW BE WEIGHED AND BALANCED.  LITTLE WONDER THAT THE PLURALITY'S
DILIGENT PURSUIT OF UNCERTAINTY HAS UNEARTHED PHRASES WHICH, SO IT
SUPPOSES, PERMIT SOME ROOM FOR AMBIGUITY. 

FINALLY, IT MUST BE REMEMBERED THAT IN THE REPORT, AT THE PRETRIAL
HEARING, AND AT THE TRIAL ITSELF, THE POLICE, THE WITNESSES, AND EVEN
COUNSEL EMPLOYED INTERCHANGEABLY VARIOUS TERMS OF VERY DISSIMILAR
MEANING TO DESCRIBE THE ACTS COMMITTED UPON THE GIRL BY THE
DEFENDANTS.  THE POST-CONVICTION PROCEEDING COURT EXPRESSLY FOUND THAT
JOYCE FOR ONE WAS CONFUSED BY THIS ELUSIVE TERMINOLOGY, AND THAT THIS
CONFUSION EXPLAINED ANY DISCREPANCIES IN HER VARIOUS ACCOUNTS OF THESE
EVENTS.  THIS FINDING WAS NOT DISTURBED OR EVEN QUESTIONED BY THE
MARYLAND COURT OF APPEALS.  NONETHELESS, THE PLURALITY ATTEMPTS TO
ESCAPE IT WITH THE SUGGESTION, SURROUNDED BY CAUTIOUS DISCLAIMERS, THAT
IT MAY POSSIBLY HAVE BEEN MISTAKEN.  THE PLURALITY OFFERS THREE REASONS
FOR THIS SUGGESTION.  IT FIRST INTIMATES THAT THE FINDING MAY BE
MISTAKEN BECAUSE THE STATE PROFFERED THIS EXPLANATION ONLY AT THE POST
CONVICTION PROCEEDING.  THIS IS ENTIRELY UNPERSUASIVE; JOYCE'S
CONFUSION WAS APPARENT AT LEAST AS EARLY AS THE ORIGINAL PRELIMINARY
HEARING, AND WAS NOT THERE OFFERED BY THE STATE AS AN EXPLANATION, BUT
INSTEAD BECAME OBVIOUS TO THOSE PRESENT SIMPLY FROM THE TERMS OF
JOYCE'S TESTIMONY.  THE PLURALITY NEXT SUGGESTS THAT JOYCE AT TRIAL
EXPRESSED CONFUSION ONLY AS TO THE NAMES OF HER ASSAILANTS, AND NOT
ABOUT THIS TERMINOLOGY.  THIS IS TWICE DEFICIENT: IT IGNORES THAT THE
TERMS OF JOYCE'S TESTIMONY WERE PERFECTLY WELL KNOWN TO THE STATE
COURTS WHICH MADE AND ACCEPTED THE FINDING, AND IT IS BOTTOMED ON AN
UNREASONABLE CONSTRUCTION OF THE TESTIMONY.  (FN6) 

LASTLY, THE PLURALITY CONTENDS THAT JOYCE IS NOT SHOWN BY THE
SUPPLEMENTARY REPORT TO HAVE BEEN CONFUSED.  THERE ARE TWO OBVIOUS
ANSWERS.  FIRST, THIS ASSUMES THAT THE REPORT PRECISELY REPRODUCES THE
WORDS USED BY JOYCE HERSELF TO DESCRIBE THESE EVENTS, AND THAT THESE
WORDS MAY THEREFORE BE SIFTED AND WEIGHED TO ESTABLISH JOYCE'S
FAMILIARITY WITH THIS TERMINOLOGY.  THIS IS UNSUPPORTED BY THE REPORT
ITSELF, WHICH CONTAINS NO FORMAL STATEMENTS, AND IS INSTEAD AN INFORMAL
JUMBLE OF UNDIGESTED INFORMATION COLLECTED BY THE POLICE AS THEY
CONDUCTED THEIR INVESTIGATION.  AT NO POINT CAN THE READER BE ENTIRELY
CERTAIN WHETHER ITS WORDS ARE THE WITNESS' OR THOSE SELECTED BY THE
POLICE INTERROGATORS TO DIGEST THE INFORMATION GIVEN THEM.  FINALLY,
THE PLURALITY OVERLOOKS THAT THERE IS UNCONTESTED TESTIMONY THAT JOYCE
WAS PLAINLY AND PERTINENTLY CONFUSED AT THE PRELIMINARY HEARING.  THE
PLURALITY'S SPECULATION THAT SHE MAY OR MAY NOT HAVE BEEN CONFUSED AT
ONE STAGE OF THIS LENGTHY PROCEEDING CAN SCARCELY VITIATE THE FIRM
FINDING OF THE MARYLAND COURTS THAT SHE WAS CONFUSED AT ANOTHER AND
MORE CRUCIAL STAGE, AND THAT THIS CONFUSION EXPLAINED ANY DISCREPANCIES
IN HER ACCOUNTS OF THESE EVENTS.  IN SUM, I FIND THE PLURALITY'S
OBLIQUE EFFORTS TO CAST DOUBT ON THE FINDING OF THE STATE COURTS
ENTIRELY UNPERSUASIVE. 

MOREOVER, THESE REFERENCES IN THE SUPPEMENTARY REPORT MUST BE VIEWED
IN LIGHT OF THE OTHER POLICE REPORT FURNISHED THIS COURT, THE
MONTGOMERY COUNTY OFFICERS' REPORT.  THAT REPORT MAKES QUITE CLEAR THAT
JOYCE INDICATED AT THE SCENE THAT JOHN GILES "HAD ENTERED HER."  (FN7)
THE PLURALITY SEEKS TO EXPLAIN THE TERMS OF THIS REPORT WITH TWO
SUGGESTIONS.  FIRST, IT INTIMATES THAT THE REPORT MAY BE UNRELIABLE
BECAUSE IT IS A SUMMARY OF JOYCE'S STATEMENTS "IMMEDIATELY AFTER THE
INCIDENT."  I SHOULD HAVE THOUGHT THAT IT WOULD THEREFORE BE ALL THE
MORE IMPORTANT.  AT MOST, THE PLURALITY'S INTIMATION IS AN
ACKNOWLEDGMENT OF THE WEAKNESSES OF BOTH REPORTS.  NEITHER REPORT WAS
INTENDED TO SERVE AS A FORMAL AND PRECISE RECORD; IT IS THEREFORE
EXTRAORDINARILY HAZARDOUS TO PYRAMID, AS THE PLURALITY HAS DONE,
HYPOTHESES UPON STRAINED CONSTRUCTIONS OF THE REPORTS' MOST ABBREVIATED
REFERENCES.  THIS SIMPLY RE-EMPHASIZES THE WISDOM OF THE STATE'S
EXCLUSIONARY RULE, AND THE CORRESPONDING IMPROPRIETY OF THE PLURALITY'S
CIRCUMVENTION OF THAT RULE.  SECOND, THE PLURALITY SUGGESTS THAT THE
REPORT LEAVES UNEXPLAINED THE POLICE TESTIMONY THAT JOYCE HAD SAID THAT
ALL THREE MEN HAD INTERCOURSE WITH HER.  THIS ASSUMES FIRST THAT THE
WORDS "GAVE UP" IN THE REPORT INDICATE THAT JOYCE MEANT THAT JAMES
GILES DID NOT PENETRATE, WHEN IN LIGHT OF THE OTHER ACCOUNTS GIVEN BY
BOTH JAMES GILES AND JOYCE, IT COULD ONLY HAVE MEANT THAT HE DID NOT
REACH EMISSION.  MORE IMPORTANT, THE PLURALITY OVERLOOKS THAT THE ONLY
QUESTIONS WHICH HAVE EVER BEEN EVEN INTIMATED ABOUT WHETHER ANY OF THE
THREE YOUTHS FAILED TO PENETRATE THE GIRL ENTER ENTIRELY ON JOHN GILES,
AND THIS IS A PLAIN STATEMENT IN THE POLICE REPORTS THAT JOYCE HAD
INFORMED THE POLCIE AT LEAST ONCE THAT JOHN GILES PENETRAED HER.  THE
PLURALITY OPINION CANNOT, AND DOES NOT, DENY THAT THIS IS THE MOST
UNEQUIVOCAL REFERENCE IN EITHER REPORT TO JOHN'S ACTIONS, AND THAT IT
MAKES PLAIN THAT JOYCE REPORTED THAT JOHN HAD PENETRATED HER.  GIVEN
THE AMBIGUITY OF THE REFERENCES TO JOHN GILES IN THE SUPPLEMENTARY
REPORT, JOYCE'S CLEAR STATEMENT IN THE OFFICERS' REPORT THAT GILES HAD
PENETRATED, AND THE NO LESS PLAIN STATEMENTS IN THE SUPPLEMENTARY
REPORT FROM JOYCE, JAMES GILES AND JOHNSON THAT JAMES AND JOHNSON ALSO
PENETRATED, I AM AGAIN UNABLE TO UNDERSTAND HOW IT CAN BE THOUGHT THAT
THERE MIGHT BE SOME BASIS FOR THE ATTRIBUTION OF PERJURY ON THIS SCORE
TO THE POLICE WITNESSES.  (FN8) 

THE ASSERTED DISCREPANCIES AMONG THE VARIOUS ACCOUNTS GIVEN OF JOHN
GILES' PARTICIPATION BY JOYCE AND THE OTHER PROSECUTION WITNESSES HAVE
BEEN FORCEFULLY ARGUED AT EACH STAGE OF THIS CASE, THEY HAVE BEEN
PAINSTAKINGLY CONSIDERED BY THE STATE COURTS, AND I CAN SEE NO WARRANT
FOR INVITING THOSE COURTS TO EXAMINE THE ISSUE ANEW. 

THE PLURALITY NEXT SUGGESTS THAT THE PROSECUTION MAY ALSO HAVE BEEN
PRIVY TO THE USE OF PERJURED TESTIMONY OR GUILTY OF A DELIBERATE
SUPPRESSION OF EVIDENCE IN RELATION TO WHAT THE GIRL AND FOSTER WERE
DOING IN THE CAR JUST BEFORE THEIR ASSAILANTS CAME UPON THEM.  THIS IS
ENTIRELY INSUBSTANTIAL.  FOSTER AND THE GIRL WERE NEVER DIRECTLY ASKED
AT TRIAL, AND DID NOT VOLUNTEER, TO DESCRIBE WHAT THEY HAD DONE WHILE
AWAITING THE RETURN OF THEIR FRIENDS.  THEY WERE NOT ASKED IF THEY HAD
INTERCOURSE.  THE QUESTION WAS ONLY ONCE EVEN INFERENTIALLY SUGGESTED. 
FOSTER WAS FIRST ASKED "WHAT DID YOU THREE BOYS TAKE JOYCE OUT THERE
FOR THAT NIGHT?"  AND REPLIED "I TOLD YOU WE WERE GOING TO MEET SOME
FRIENDS UP THERE AND GO SWIMMING."  THE NEXT QUESTION WAS "YOU DIDN'T
TAKE HER OUT THERE TO HAVE SEXUAL RELATIONS WITH HER, YOURSELF, DID
YOU?"  AND FOSTER REPLIED "NO."  IT WOULD DOUBTLESS HAVE BEEN MORE
FORTHRIGHT HAD FOSTER INTERJECTED THAT, WHATEVER HIS ORIGINAL
EXPECTATIONS, THEY HAD IN FACT HAD RELATIONS; NONETHELESS, HIS
EXPLANATION WAS AN ADEQUATE RESPONSE TO THE PRECISE QUESTION ASKED.  IN
SHORT, ALTHOUGH THE EVIDENCE WAS AS TO THIS POINT INCOMPLETE, IT WAS,
SO FAR AS IT WENT, CONSISTENT WITH THE POLICE REPORT. 

I DO NOT SEE HOW IT CAN BE SUGGESTED THAT THE PROSECUTOR'S CONDUCT IN
THIS INSTANCE WAS CONSTITUTIONALLY VULNERABLE.  FIRST AND FOREMOST, THE
CONTENTS OF THE POLICE REPORTS ON THIS EPISODE WERE MADE AVAILABLE TO
THE DEFENSE, AND COUNSEL ELECTED TO MAKE NOTHING OF THEM.  SECOND, THE
OMITTED FACT IN FOSTER'S TESTIMONY COULD NOT HAVE HAD "AN EFFECT ON THE
OUTCOME OF THE TRIAL."  NAPUE V. ILLINOIS, 360 U.S. 264, 272. 
INITIALLY, IT IS VERY DOUBTFUL THAT THIS EVIDENCE WOULD HAVE BEEN
ADMISSIBLE AT TRIAL.  UNDER THE LAW OF MARYLAND, SPECIFIC ACTS OF
MISCONDUCT ARE NOT ADMISSIBLE TO IMPEACH A WITNESS' CREDIBILITY.  RAU
V. STATE, 133 MD. 613, 105 A. 867.  FURTHER, SINCE THE EVIDENCE AT
TRIAL WAS MERELY SILENT ON THESE ISSUES, AND DID NOT INCLUDE
INCONSISTENT STATEMENTS, THIS EVIDENCE PRESUMABLY WOULD NOT HAVE BEEN
ADMISSIBLE ON THAT BASIS TO IMPEACH THE CREDIBILITY OF THESE
WITNESSES.  FINALLY, ALTHOUGH MARYLAND PERMITS THE ADMISSION OF
EVIDENCE OF A PROSECUTRIX' GENERAL REPUTATION FOR IMMORALITY, IT DOES
NOT PERMIT EVIDENCE OF SPECIFIC ACTS OF INTERCOURSE.  SHARTZER V.
STATE, 63 MD. 149; HUMPHREYS V. STATE, 227 MD. 115, 175 A.2D 777.  THE
COURT OF APPEALS OF MARYLAND HAS IN THIS VERY CASE PLAINLY SAID THAT "A
PROSECUTRIX CANNOT BE ASKED WHETHER SHE HAD PREVIOUSLY HAD INTERCOURSE
WITH A PERSON OTHER THAN THE ACCUSED."  GILES V. STATE, 229 MD. 370,
380, 183 A.2D 359, 363.  THE EVIDENCE WITH WHICH THE PLURALITY IS
CONCERNED THEREFORE CANNOT "REASONABLY BE CONSIDERED ADMISSIBLE,"
GRIFFIN V. UNITED STATES, 87 U.S. APP. D.C. 172, 175, 183 F.2D 990,
993, UNDER THE LAW OF MARYLAND.  FAR MORE IMPORTANT FROM A FEDERAL
STANDPOINT, EVIDENCE OF FOSTER'S RELATIONS WITH THE GIRL, EVEN IF
ADMISSIBLE, COULD NOT HAVE BEEN SUBSTANTIALLY RELEVANT TO THE PRINCIPAL
FACTUAL ISSUES AT THE TRIAL.  ITS OMISSION DID NOT DISCOLOR THE MEANING
OF CONTROLLING FACTS, AS DID THE EPISODE INVOLVED IN ALCORTA V. TEXAS,
355 U.S. 28; NOR DID IT MEASURABLY STRENGTHEN A WITNESS' CREDIBILITY,
AS DID THE ONE INVOLVED IN NAPUE V. ILLINOIS, 360 U.S. 264.  IT WOULD
AT MOST HAVE GIVEN THE DEFENSE ANOTHER INCONCLUSIVE INTIMATION OF
JOYCE'S PROMISCUITY, AND THIS COULD SCARCELY HAVE SUFFICED TO CHANGE
THE TRIAL'S OUTCOME. 

THE PLURALITY ULTIMATELY SEEKS TO JUSTIFY ITS DISPOSITION OF THIS
CASE IN TERMS OF THE RULES BY WHICH THIS COURT HAS GIVEN RECOGNITION TO
THE DIFFERENT ROLES PLAYED UNDER THE CONSTITUTION BY FEDERAL AND STATE
COURTS.  THESE EFFORTS ARE ENTIRELY UNPERSUASIVE.  IN ESSENCE, THE
PLURALITY HAS FIRST BROUGHT THESE POLICE REPORTS INTO THE CASE THROUGH
AN INFORMAL DISCOVERY RULE OF ITS OWN CREATION WHICH FLIES INTO THE
FACE OF AN UNASSAILED STATE RULE WHICH EXCLUDED THE REPORTS, AND NOW
HAS INVITED THE STATE COURTS TO RECONSIDER THE CASE UNRESTRICTED BY THE
LOCAL RULE AND NOT CONFINED TO THE "CONSTITUTION'S RELEVANT COMMANDS." 
THIS SCARCELY FITS THE PLURALITY'S PROFESSED OBJECTIVE TO "MINIMIZE
FEDERAL-STATE TENSIONS."  AND PLAINLY THIS COURSE FINDS NO SUPPORT IN
CASES IN WHICH THE COURT HAS REMANDED FOR FURTHER CONSIDERATION IN
LIGHT OF A SUPERVENING EVENT.  NOTHING HERE IS REMOTELY ANALOGOUS TO
THE CHANGE IN STATE LAW THAT OCCURRED IN BELL V. MARYLAND, 378 U.S.
226, OR TO THE INTERVENING JUDGMENTS OF THIS COURT THAT TOOK PLACE IN
PATTERSON V. ALABAMA, 294 U.S. 600, AND IN DORCHY V. KANSAS, 264 U.S.
286.  WHAT IS NOW DONE IS EXPLICABLE ONLY ON THE PREMISE THAT THIS
COURT POSSESSES SOME SORT OF SUPERVISORY POWER OVER STATE COURTS, A
PREMISE WHICH OF COURSE TRAVERSES THE MOST FUNDAMENTAL AXIOMS OF OUR
FEDERAL SYSTEM. 

  II. 

THE RATIONALE OFFERED FOR REMAND BY MY BROTHER WHITE'S OPINION IS
EQUALLY UNSATISFACTORY.  AT BOTTOM, THAT RATIONALE CONSISTS OF THE
SUPPOSITION THAT THE PRESIDING JUDGE AT THE STATE POST-CONVICTION
PROCEEDING MAY POSSIBLY HAVE MISCONSTRUED APPLICABLE MARYLAND LAW, AND
MAY THEREFORE HAVE IMPROPERLY EXCLUDED TESTIMONY RELEVANT TO THE MENTAL
CONDITION OF THE PROSECUTING WITNESS.  MY BROTHER WHITE DOES NOT
SUGGEST, AS I THINK HE CANNOT, THAT ANY OF THE RULINGS WHICH HE
SUSPECTS TO HAVE BEEN ERRONEOUS WERE DEFICIENT UNDER ANY KNOWN FEDERAL
STANDARD.  ALL OF THEM AT MOST INVOLVE, EVEN UNDER HIS PREMISES,
MISAPPLICATIONS OF MARYLAND LAW.  EACH OF THESE RULINGS WAS PLAIN ON
THE FACE OF THE RECORD PRESENTED TO, AND CAREFULLY CONSIDERED BY, THE
MARYLAND COURT OF APPEALS; ALL THE MATERIALS PERTINENT TO THE
EVALUATION OF THESE RULINGS WERE BEFORE THAT COURT AT THE TIME OF ITS
REVIEW. 

THE COURT DID NOT, OF COURSE, EXPLICITLY DETERMINE THE VARIOUS
QUESTIONS NOW POSED, BUT IT DID, AS MY BROTHER WHITE ACKNOWLEDGES,
EXAMINE THE RECORD TO DECIDE WHETHER JOYCE MIGHT HAVE BEEN SUFFERING
FROM MENTAL ILLNESS, OR WHETHER SHE WAS OTHERWISE INCOMPETENT AS A
WITNESS.  SUCH AN EXAMINATION MUST INEVITABLY HAVE OBLIGED THE COURT TO
ASSESS THE VERY RULINGS AND RESTRICTIONS WHICH IT MUST NOW REASSESS
UPON REMAND.  DESPITE THIS, NEITHER THE MAJORITY NOR THE DISSENTING
OPINION BELOW EXPRESSED ANY DOUBT THAT THESE RULINGS WERE ENTIRELY
CORRECT.  AT A MINIMUM, A REMAND THUS NEEDLESSLY PROLONGS AN ALREADY
PROTRACTED CASE; UNFORTUNATELY, IT MAY ALSO APPEAR TO ENDORSE THE
SUBSTITUTION OF THE SPECULATIONS OF THIS COURT ON THE CONTENT OF STATE
LAW FOR THE CONCLUSIONS OF THE STATE'S HIGHEST COURT, AS BASIS FOR THE
RETURN OF A CASE TO THE STATE COURTS FOR RECONSIDERATION. 

IN ANY EVENT, THE HESITATIONS EXPRESSED BY MR. JUSTICE WHITE'S
OPINION ABOUT THE SCOPE OF THE EVIDENCE CONCERNING JOYCE'S MENTAL
CONDITION APPEAR UNWARRANTED ON THE RECORD BEFORE US.  THE RECORD MAKES
PLAIN THAT THE COURT AT THE POST-CONVICTION PROCEEDING PERMITTED THE
ADMISSION OF SUBSTANTIALLY MORE EVIDENCE ON THIS ISSUE THAN THAT
OPINION MIGHT BE TAKEN TO SUGGEST.  FIRST, THE PRESIDING JUDGE
PERMITTED DR. CONNOR, THE ATTENDING PHYSICIAN, TO STATE HIS DIAGNOSIS
OF JOYCE'S MENTAL CONDITION.  IN ADDITION, DR. CONNOR WAS ALLOWED TO
INDICATE THAT HE AGREED WITH THE DIAGNOSIS DESCRIBED TO HIM BY THE
CONSULTING PHYSICIAN, DR. DOUDOUMOPOULIS.  DR. CONNOR WAS NOT, AS THAT
OPINION NOTES, PERMITTED TO DESCRIBE THAT DIAGNOSIS, BUT THE COURT
SUPPLEMENTED ITS RULING WITH THE STATEMENT TO DEFENSE COUNSEL THAT "I
WOULD ADMIT IT IF YOU PUT IT IN THE RIGHT MANNER."  BOTH DR. CONNOR AND
DR. DOUDOUMOPOULIS WERE ALLOWED IN A DEPOSITION HEARING TO STATE
WHETHER THEY HAD DISCUSSED JOYCE'S CONDITION WITH VARIOUS OFFICIALS OF
PRINCE GEORGE'S AND MONTGOMERY COUNTIES.  FURTHER, THE COURT PERMITTED
ANOTHER PSYCHIATRIST, DR. SOLOMON, TO STATE, IN REPLY TO A HYPOTHETICAL
QUESTION ASKED BY DEFENSE COUNSEL, HIS OPINION OF THE MENTAL CONDITION
OF A GIRL IN JOYCE'S CIRCUMSTANCES.  IN ADDITION, DR. SOLOMON WAS
PERMITTED TO DESCRIBE THE BASIS FOR HIS VIEWS, TO OFFER HIS OPINION AS
TO WHAT HER MENTAL CONDITION MIGHT HAVE BEEN SOME THREE MONTHS LATER
(THE INTERVAL BEFORE THE TRIAL IN THIS CASE), AND TO STATE THAT A GIRL
IN THESE CIRCUMSTANCES WARRANTED A PSYCHIATRIC EXAMINATION.  DR.
SOLOMON WAS PREVENTED FROM SPECULATING ONLY WHETHER THIS CONDITION
MIGHT HAVE AFFECTED THE GIRL'S CREDIBILITY AS A WITNESS, AN ISSUE, THE
COURT NOTED, WHICH IS FOR THE JURY, AND NOT AN EXPERT WITNESS, TO
DETERMINE.  FINALLY, PETITIONERS ADDUCED VERY SUBSTANTIAL EVIDENCE OF
JOYCE'S SEXUAL HISTORY, ALL OF WHICH WAS PERTINENT TO THE COURT'S
DETERMINATION WHETHER SHE MIGHT HAVE BEEN SUFFERING FROM MENTAL
ILLNESS. 

PERHAPS MORE EVIDENCE OF JOYCE'S MENTAL CONDITION, AND OF THE
KNOWLEDGE OF MONTGOMERY COUNTY AUTHORITIES OF THAT CONDITION, COULD
CONCEIVABLY HAVE BEEN INTRODUCED; BUT IT IS TRUE OF ALL CRIMINAL
PROSECUTIONS, FEDERAL AND STATE, THAT SOME FRAGMENTS OF FACT BROADLY
PERTINENT TO THE ISSUES OF THE TRIAL DO NOT REACH THE RECORD.  IN ANY
EVENT, THE PETITIONERS THEMSELVES HAVE APPARENTLY NEVER CHALLENGED ANY
OF THESE RULINGS EITHER BEFORE THE MARYLAND COURT OF APPEALS OR IN THIS
COURT.  I CAN FIND NO BASIS ON THE RECORD BEFORE US FOR REMANDING THIS
CASE SIMPLY IN THE HOPE THAT RULINGS OF STATE LAW MAY NOW BE HELD TO
HAVE BEEN IMPROPER, AND THUS THAT UNKNOWN ADDITIONAL EVIDENCE, WHICH
MAY OR MAY NOT BE PERTINENT AND SUBSTANTIAL, MAY THEN BE ADMITTED. 
THIS PRACTICE IS WARRANTED NEITHER BY THE FACTS OF THIS CASE NOR BY THE
ROLE GIVEN TO THIS COURT BY THE CONSTITUTION IN THE REVIEW OF STATE
CRIMINAL CONVICTIONS. 

              III. 

MY BROTHER FORTAS' PROPOSED RESOLUTION OF THE CASE IS, WITH GREAT
RESPECT, NO MORE SATISFACTORY, ALTHOUGH HE WOULD, TO BE SURE, BASE ITS
DISPOSITION UPON AN ASSERTED FEDERAL QUESTION.  HIS REASONING, AS I SEE
IT, RESTS AT BOTTOM UPON QUITE FUNDAMENTAL OBJECTIONS TO THE CHARACTER
AND BALANCE OF OUR ADVERSARY SYSTEM OF CRIMINAL JUSTICE.  NEITHER THOSE
OBJECTIONS NOR THE CONCLUSIONS WHICH STEM FROM THEM FORM ANY PART OF
THE DISPOSITION MADE OF THIS CASE, IN WHICH HE JOINS; IT WOULD
ACCORDINGLY BE INAPPROPRIATE FOR ME TO RESPOND IN MORE THAN RELATIVELY
SUMMARY FASHION.  I CONTENT MYSELF, THEREFORE, WITH OUTLINING THE
REASONS WHY I CANNOT SUBSCRIBE TO MY BROTHER FORTAS' APPROACH. 

AS I UNDERSTAND HIM, MY BROTHER FORTAS BELIEVES THAT STATE
PROSECUTING OFFICIALS ARE COMPELLED BY THE FOURTEENTH AMENDMENT TO
DISCLOSE TO DEFENSE COUNSEL ANY INFORMATION "WHICH IS MATERIAL,
GENEROUSLY CONCEIVED, TO THE CASE, INCLUDING ALL POSSIBLE DEFENSES." 
THIS WOULD INCLUDE ALL INFORMATION WHICH IS "EXONERATIVE OR HELPFUL." 
THIS STANDARD WOULD DEMAND MARKEDLY BROADER DISCLOSURES THAN THIS COURT
HAS EVER HELD THE FOURTEENTH AMENDMENT TO REQUIRE.  THE COURT HAS HELD
SINCE MOONEY V. HOLOHAN, 294 U.S. 103, THAT A STATE'S KNOWING USE OF
PERJURED TESTIMONY DENIES A FAIR TRIAL TO THE ACCUSED.  MOONEY HAS BEEN
UNDERSTOOD TO INCLUDE CASES IN WHICH A STATE KNOWINGLY PERMITS FALSE
TESTIMONY TO REMAIN UNCORRECTED.  ALCORTA V. TEXAS, 355 U.S. 28; NAPUE
V. ILLINOIS, 360 U.S. 264.  THE STANDARD APPLIED IN SUCH CASES HAS BEEN
WHETHER THE TESTIMONY "MAY HAVE HAD AN EFFECT ON THE OUTCOME OF THE
TRIAL."  NAPUE V. ILLINOIS, SUPRA, AT 272.  THESE CASES WERE VERY
RECENTLY FOLLOWED AND APPLIED IN MILLER V. PATE, ANTE, P. 1.  APART
FROM DICTA IN BRADY V. MARYLAND, 373 U.S. 83, THE COURT HAS NEVER GONE
FURTHER.  (FN9)  NOR, IN MY VIEW, DOES THE CONSTITUTION DEMAND MORE. 
THIS STANDARD IS WELL CALCULATED TO PREVENT THE KINDS OF PROSECUTORIAL
MISCONDUCT WHICH VITIATE THE VERY BASIS OF OUR ADVERSARY SYSTEM, AND
YET TO PROVIDE A FIRM LINE WHICH HALTS SHORT OF BROAD, CONSTITUTIONALLY
REQUIRED, DISCOVERY RULES.  IT BOTH GUARANTEES THE FUNDAMENTAL FAIRNESS
OF STATE CRIMINAL TRIALS, THEREBY SATISFYING IN FULL THE REQUIREMENTS
OF THE FOURTEENTH AMENDMENT, AND PRESERVES INTACT THE STATES' ULTIMATE
AUTHORITY FOR THE CONDUCT OF THEIR SYSTEMS OF CRIMINAL JUSTICE.  NONE
OF THESE ADVANTAGES ADHERES TO THE STANDARD SUGGESTED BY MY BROTHER
FORTAS.  HIS REASONING MUST INEVITABLY RESULT IN THE IMPOSITION UPON
THE STATES THROUGH THE CONSTITUTION OF BROAD DISCOVERY RULES.  THOSE
RULES WOULD ENTIRELY ALTER THE CHARACTER AND BALANCE OF OUR PRESENT
SYSTEMS OF CRIMINAL JUSTICE. 

THE EXTRAORDINARY BREADTH OF THE STANDARD APPARENTLY URGED BY MR.
JUSTICE FORTAS BECOMES MORE PLAIN WHEN THAT STANDARD IS MEASURED
AGAINST RULE 16 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, APPLICABLE
IN FEDERAL CRIMINAL TRIALS.  (FN10)  DISCOVERY UNDER RULE 16, EVEN AS
NOW AMENDED, IS RESTRICTED BY A NUMBER OF CAREFULLY DRAWN LIMITATIONS,
EACH INTENDED TO "GUARD AGAINST POSSIBLE ABUSES."  NOTES OF THE
ADVISORY COMMITTEE ON RULES, 39 F.R.D. 176.  THE DEFENDANT IS PERMITTED
ONLY TO OBTAIN CERTAIN CATEGORIES OF MATERIALS, AND HE MUST IN EACH
CASE FIRST MOVE THE COURT FOR THEIR PRODUCTION.  THESE LIMITATIONS FALL
FAR SHORT OF THE STANDARD URGED BY MY BROTHER FORTAS.  UNDER HIS VIEW
THE INFORMATION OBTAINABLE BY THE DEFENDANT COULD NOT BE RESTRICTED BY
ITS CHARACTER OR SOURCE; FAILURE TO DISCLOSE COULD BE JUSTIFIED, POST
HOC, ONLY IF THE INFORMATION CANNOT BE DEEMED "MATERIAL," GENEROUSLY
JUDGED.  NOR COULD THE DEFENDANT BE OBLIGED TO DEMAND DISCLOSURE; AS MY
BROTHER FORTAS' OPINION EMPHASIZES, THE BURDEN MUST INSTEAD BE PLACED
UPON THE PROSECUTOR, ON THREAT OF SUBSEQUENT REVERSAL OF ANY
CONVICTION, SPONTANEOUSLY TO PROFFER ALL THAT MIGHT PROVE "HELPFUL" TO
THE DEFENSE.  THE EFFECT WHICH THE RULE URGED HERE WOULD THUS HAVE ON
THIS FEDERAL AND SIMILAR STATE DISCOVERY RULES WOULD BE ENTIRELY UNLIKE
THAT OF MOONEY AND THE CASES WHICH STEM FROM IT.  MOONEY SIMPLY IMPOSES
SANCTIONS UPON SPECIFIED FORMS OF PROSECUTORIAL MISCONDUCT; MR. JUSTICE
FORTAS' RULE WOULD IN CONTRAST CREATE WIDE CONSTITUTIONAL OBLIGATIONS
TO DISCLOSE WHICH, WHETHER OPERATIVE BEFORE OR DURING TRIAL, WOULD
ENTIRELY SWALLOW THE MORE NARROW DISCOVERY RULES WHICH NOW PREVAIL EVEN
IN FEDERAL CRIMINAL TRIALS. 

ISSUES OF THE OBLIGATORY DISCLOSURE OF INFORMATION ULTIMATELY RAISE
FUNDAMENTAL QUESTIONS OF THE PROPER NATURE AND CHARACTERISTICS OF THE
CRIMINAL TRIAL.  THESE QUESTIONS SURELY ARE ENTIRELY TOO IMPORTANT FOR
THIS COURT TO IMPLANT IN OUR LAWS BY CONSTITUTIONAL DECREE ANSWERS
WHICH, WITHOUT FULL STUDY, MIGHT APPEAR WARRANTED IN A PARTICULAR
CASE.  THERE ARE FEW AREAS WHICH CALL MORE FOR PRUDENT EXPERIMENTATION
AND CONTINUING STUDY.  I CAN FIND NOTHING EITHER IN THE CONSTITUTION OR
IN THIS CASE WHICH WOULD COMPEL, OR JUSTIFY, THE IMPOSITION UPON THE
STATES OF THE VERY BROAD DISCLOSURE RULE NOW PROPOSED. 

   IV. 

THE UNARTICULATED BASIS OF TODAY'S DISPOSITION, AND OF THE DISPARATE
REASONS WHICH ACCOMPANY IT, IS QUITE EVIDENTLY NOTHING MORE THAN THE
COURT'S UNEASINESS WITH THESE CONVICTIONS, ENGENDERED BY POST-TRIAL
INDICATIONS OF THE PROMISCUITY OF THIS UNFORTUNATE GIRL.  UNABLE TO
DISCOVER A CONSTITUTIONAL INFIRMITY AND UNWILLING TO AFFIRM THE
CONVICTIONS, THE COURT SIMPLY RETURNS THE CASE TO THE MARYLAND COURT OF
APPEALS, IN HOPES THAT, DESPITE THE PLURALITY'S REPEATED DISCLAIMERS,
THAT COURT WILL SHARE THE COURT'S DISCOMFORT AND DISCOVER A FORMULA
UNDER WHICH THESE CONVICTIONS CAN BE REVERSED.  THE COURT IS UNABLE
EVEN TO AGREE UPON A STATE LAW BASIS WITH WHICH TO EXPLAIN ITS REMAND. 
I CANNOT JOIN SUCH A DISPOSITION.  WE ON THIS BENCH ARE NOT FREE TO
DISTURB A STATE CONVICTION SIMPLY FOR REASONS THAT MIGHT BE PERMISSIBLE
WERE WE SITTING ON THE STATE COURT OF LAST RESORT.  NOR ARE WE FREE TO
INTERJECT OUR INDIVIDUAL SYMPATHIES INTO THE ADMINISTRATION OF STATE
CRIMINAL JUSTICE.  WE ARE INSTEAD CONSTRAINED TO REMAIN WITHIN THE
PERIMETER DRAWN FOR THIS COURT BY THE CONSTITUTION. 

I CANNOT FIND A TENABLE CONSTITUTIONAL GROUND ON WHICH THESE
CONVICTIONS COULD BE DISTURBED, AND WOULD THEREFORE AFFIRM THE JUDGMENT
OF THE COURT OF APPEALS OF MARYLAND. 

FN1  "CONSENT" IS OF COURSE THE CONVENTIONAL DEFENSE IN RAPE CASES. 
IN LIGHT OF THE FORCIBLE ENTRY INTO THE CAR OCCUPIED BY THE VICTIM, THE
ASSAULT UPON HER COMPANION, AND HER FLIGHT INTO THE WOODS, IT WOULD
HAVE BEEN EXTRAORDINARY FOR THE JURY TO HAVE BELIEVED THAT THIS GIRL
FREELY INVITED THESE YOUTHS TO HAVE SEXUAL RELATIONS WITH HER, STILL
MORE THAT THE PETITIONER JOHN GILES, WHO WAS THE FIRST TO PURSUE HER
INTO THE WOODS (ALBEIT ALLEGEDLY NOT KNOWING THAT HE WAS PURSUING A
FEMALE), REFUSED THE "INVITATION."    FN2  COUNSEL SO STATED THREE
TIMES AT THE POST-CONVICTION PROCEEDING, TWICE UNDER THE JUDGE'S
QUESTIONING.  THIS COLLOQUY HAS BEEN REPRINTED IN MY BROTHER WHITE'S
OPINION, ANTE, P. 82. 

FN3  WE DO NOT HAVE BEFORE US THE TRANSCRIPT OF THE PRELIMINARY
HEARING.  AN UNCONTESTED ACCOUNT OF JOYCE'S TESTIMONY WAS HOWEVER GIVEN
AT THE POST-CONVICTION PROCEEDING.  SEE TRANSCRIPT OF RECORD 270-272. 

FN4  COUNSEL MADE AN EXTENDED EFFORT TO DISCREDIT JOYCE'S TESTIMONY
BASED ON THE ALLEGED INCONSISTENCIES IN HER VARIOUS ACCOUNTS.  SEE
TRANSCRIPT OF RECORD 62-64. 

FN5  IT IS IMPORTANT TO NOTE THAT THE SUPPLEMENTARY REPORT DOES NOT,
CONTRARY TO THE APPARENT SUGGESTION IN THE PLURALITY OPINION, STATE
THAT JOHN GILES "FAILED TO 'INSERT.'" 

FN6  JOYCE DID NOT SIMPLY SUGGEST THAT SHE HAD BEEN CONFUSED ABOUT
THE NAMES OF HER ASSAILANTS.  UNDER DEFENSE COUNSEL'S PERSISTENT CROSS
EXAMINATION SHE REPEATEDLY AFFIREMD THAT SHE WAS TELLING THE FULL
TRUTH, AND THAT SHE DID NOT KNOW "WHAT I THOUGHT" AT THE TIME OF HER
EARLIER ACCOUNTS.  GIVEN HER AGE AND CIRCUMSTANCES, THIS IS SCARCELY
IMPROBABLE. 

FN7  MONTGOMERY COUNTY OFFICERS' REPORT 1.  THE REPORT INDICATES THAT
JOYCE SAID "TWO OF THE  ... MALES HAD ENTERED HER AND  ...  THE THIRD
HAD TRIED BUT GAVE UP WHEN HE SAW LIGHTS COMING."  IN THE CONTEXT OF
THE OTHER EVIDENCE THE THIRD MAN COULD ONLY HAVE BEEN JAMES GILES. 

FN8  THE PLURALITY'S DIVERSIONARY SUGGESTION THAT SERGEANT DUVALL'S
TESTIMONY PRESENTS DIFFICULTIES IS WHOLLY UNPERSUASIVE.  HIS
INEXPLICABLE FAILURE TO DESCRIBE JOYCE'S STATEMENTS TO HIM SERVED ONLY
TO WEAKEN THE STATE'S CASE, AND CERTAINLY DID NOT IN ANY FASHION
PREJUDICE PETITIONERS.  IT OFFERS NO BASIS ON WHICH THEY WOULD BE
ENTITLED TO RELIEF. 

FN9  I CANNOT AGREE THAT THIS COURT IN BRADY EXTENDED MOONEY IN ANY
FASHION.  THE LANGUAGE IN BRADY UPON WHICH MY BROTHER FORTAS RELIES WAS
QUITE PLAINLY "WHOLLY ADVISORY."  BRADY V. MARYLAND, SUPRA, AT 92
(SEPARATE OPINION OF WHITE, J.). 

FN10  IN SUBSTANCE, RULE 16 PROVIDES THAT UPON THE MOTION OF A
DEFENDANT A COURT MAY PERMIT THE DEFENDANT TO INSPECT AND COPY
"STATEMENTS OR CONFESSIONS MADE BY THE DEFENDANT," THE RESULTS OF
PHYSICAL OR MENTAL EXAMINATIONS AND OF "SCIENTIFIC TESTS OR
EXPERIMENTS," AND THE DEFENDANT'S TESTIMONY BEFORE A GRAND JURY. 
FURTHER, THE COURT MAY, UPON A DEFENDANT'S MOTION AND UPON A SHOWING OF
MATERIALITY AND REASONABLENESS, PERMIT THE DEFENDANT TO INSPECT AND
COPY OR PHOTOGRAPH "BOOKS, PAPERS, DOCUMENTS, TANGIBLE OBJECTS,
BUILDINGS OR PLACES, OR COPIES OR PORTIONS THEREOF  ...  ."  THE RULE
EXPRESSLY DOES NOT AUTHORIZE THE DISCOVERY OR INSPECTION OF "INTERNAL
GOVERNMENT DOCUMENTS MADE BY GOVERNMENT AGENTS" IN CONNECTION WITH THE
CASE, OR OF STATEMENTS "MADE BY GOVERNMENT WITNESSES OR PROSPECTIVE
GOVERNMENT WITNESSES  ...  TO AGENTS OF THE GOVERNMENT  ...  ."  OTHER
PORTIONS OF RULE 16 PERMIT A COURT TO MAKE SUCH DISCLOSURES CONDITIONAL
UPON DISCLOSURES BY THE DEFENDANT TO THE GOVERNMENT, TO PRESCRIBE THE
TIME, PLACE, AND MANNER OF DISCOVERY, AND TO MAKE SUITABLE PROTECTIVE
ORDERS.  FINALLY, THE RULE CREATES A CONTINUING DUTY TO DISCLOSE
ADDITIONAL SIMILAR MATERIALS OBTAINED AFTER COMPLIANCE WITH AN ORDER
ISSUED UNDER THE RULE, AND PERMITS THE IMPOSITION OF SANCTIONS FOR
FAILURE TO SATISFY THAT DUTY. 
..END :













KILGARLIN V. HILL 386 U.S. 120 


NO. 235.  DECIDED FEBRUARY 20, 1967.  - 252 F. SUPP. 404, REVERSED IN
PART AND REMANDED. 


APPELLANTS CHALLENGE THE 1965 LEGISLATIVE REAPPORTIONMENT OF THE TEXAS
HOUSE OF REPRESENTATIVES IN A PLAN WHICH COMBINED SINGLE-MEMBER, MULTI
MEMBER, AND FLOTERIAL DISTRICTS.  THE DISTRICT COURT SUSTAINED THE PLAN
EXCEPT FOR THE FLOTERIAL DISTRICTS, WHICH WERE FOUND TO VIOLATE THE
PRINCIPLES OF REYNOLDS V. SIMS, 377 U.S. 533, AND PERMITTED THE 1966
ELECTION TO PROCEED UNDER THE PLAN.  DESPITE POPULATION VARIANCES AMONG
THE REMAINING DISTRICTS RESULTING IN A 1.31 TO 1 RATIO BETWEEN THE
LARGEST AND SMALLEST DISTRICTS, THE DISTRICT COURT APPROVED THE PLAN,
HOLDING THAT APPELLANTS HAD NOT SUSTAINED THEIR BURDEN OF NEGATING THE
EXISTENCE OF ANY STATE OF FACTS WHICH WOULD SUSTAIN THE LEGISLATION AND
THAT THE DEVIATIONS WERE JUSTIFIED BY THE STATE POLICY OF RESPECTING
COUNTY LINES WHEREVER POSSIBLE.  HELD:  POPULATION VARIANCES OF THE
SIZE EVIDENT HERE INVOKE THE RULE OF SWANN V. ADAMS, 385 U.S. 440, AND,
NOTWITHSTANDING THE DISTRICT COURT'S VIEW THAT THE DEVIATIONS HERE WERE
GENERALLY JUSTIFIED BY THE STATE POLICY OF RESPECTING COUNTY LINES, THE
JUDGMENT IS REVERSED IN PART AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS TO DETERMINE WHETHER THE STATE POLICY NECESSITATES THE
RANGE OF DEVIATIONS EVIDENT HERE. 

KILGARLIN ET AL. V. HILL, SECRETARY OF STATE OF TEXAS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

FOLLOWING JUDICIAL INVALIDATION OF THE CONSTITUTIONAL AND STATUTORY
PROVISIONS GOVERNING THE APPORTIONMENT OF THE TEXAS STATE LEGISLATURE,
THE STATE LEGISLATURE REAPPORTIONED BOTH THE HOUSE AND THE SENATE. 
APPELLANTS PROMPTLY CHALLENGED ON VARIOUS GROUNDS THE CONSTITUTIONALITY
OF H.B. 195 (FN1) WHICH REAPPORTIONED THE HOUSE OF REPRESENTATIVES IN A
COMBINATION OF SINGLE-MEMBER, MULTI-MEMBER AND FLOTERIAL DISTRICTS. 
THE DISTRICT COURT SUSTAINED ALL ASPECTS OF THE PLAN EXCEPT THOSE
PROVISIONS RESPECTING THE COUNTIES INCLUDED IN 11 FLOTERIAL DISTRICTS,
252 F. SUPP. 404, WHICH WERE FOUND VIOLATIVE OF THE EQUALITY PRINCIPLES
ANNOUNCED IN REYNOLDS V. SIMS, 377 U.S. 533.  THE COURT DID, HOWEVER,
OVER APPELLANTS' OBJECTIONS, PERMIT THE 1966 ELECTION TO PROCEED UNDER
H.B. 195 WITH A PROVISO TO THE EFFECT THAT IF THE LEGISLATURE DID NOT
ADOPT CORRECTIVE LEGISLATION BY AUGUST 1, 1967, THE COUNTIES IN THE
FLOTERIAL DISTRICTS WOULD BE RECONSTITUTED AS MULTI-MEMBER DISTRICTS
AND ALL THE REPRESENTATIVES ASSIGNED TO THOSE COUNTIES WOULD BE ELECTED
AT LARGE. 

WE AFFIRM THE DISTRICT COURT'S ACTION IN PERMITTING THE 1966 ELECTION
TO PROCEED UNDER H.B. 195 ALTHOUGH CONSTITUTIONALLY INFIRM IN CERTAIN
RESPECTS.  IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE THERE IS AMPLE
PRECEDENT FOR THE COURT'S ACTION.  SEE DRUM V. SEAWELL, 383 U.S. 831;
TOOMBS V. FORTSON, 384 U.S. 210.  WE ALSO AFFIRM THE COURT'S JUDGMENT
INSOFAR AS IT HELD THAT APPELLANTS HAD NOT PROVED THEIR ALLEGATIONS
THAT H.B. 195 WAS A RACIAL OR POLITICAL GERRYMANDER VIOLATING THE
FOURTEENTH AMENDMENT, THAT IT UNCONSTITUTIONALLY DEPRIVED NEGROES OF
THEIR FRANCHISE AND THAT BECAUSE OF ITS UTILIZATION OF SINGLE-MEMBER,
MULTI-MEMBER AND FLOTERIAL DISTRICTS IT WAS AN UNCONSTITUTIONAL "CRAZY
QUILT." 

IN ANOTHER RESPECT, HOWEVER, THE DISTRICT COURT COMMITTED REVERSIBLE
ERROR.  APPELLANTS ALLEGED THAT IN ADDITION TO THE INEQUALITIES
INHERENT IN THE FLOTERIAL DISTRICTS, H.B. 195 ALSO INFRINGED FOURTEENTH
AMENDMENT RIGHTS BECAUSE IN THE REMAINING LEGISLATIVE DISTRICTS OF THE
STATE THERE WERE UNACCEPTABLE VARIATIONS FROM THE PRINCIPLE OF REYNOLDS
V. SIMS THAT AMONG LEGISLATIVE DISTRICTS THE POPULATION PER
REPRESENTATIVE SHOULD BE SUBSTANTIALLY EQUAL.  APPELLANTS' PROOF SHOWED
THAT IN THESE OTHER DISTRICTS THE POPULATION PER REPRESENTATIVE VARIES
FROM 54,385 TO 71,301, OR FROM 14.84% OVERREPRESENTED TO 11.64%
UNDERREPRESENTED.  THE RATIO BETWEEN THE LARGEST AND THE SMALLEST
DISTRICT IS THUS 1.31 TO 1.  THE DEVIATION FROM THE AVERAGE POPULATION
PER REPRESENTATIVE IS GREATER THAN 10% IN 12 SINGLE-MEMBER DISTRICTS,
AND A TOTAL OF 55 REPRESENTATIVES WOULD BE ELECTED FROM EIGHT MULTI
MEMBER DISTRICTS IN WHICH THE POPULATION PER REPRESENTATIVE VARIES FROM
THE IDEAL BY MORE THAN 6%. 

THE DISTRICT COURT SUSTAINED THE CONSTITUTIONALITY OF H.B. 195 ON TWO
GROUNDS.  FIRST, IT HELD THAT APPELLANTS HAD THE BURDEN NOT ONLY OF
DEMONSTRATING THE DEGREE OF VARIANCE FROM THE EQUALITY PRINCIPLE BUT
ALSO OF "NEGATING THE EXISTENCE OF ANY STATE OF FACTS WHICH WOULD
SUSTAIN THE CONSTITUTIONALITY OF THE LEGISLATION."  252 F. SUPP. 404,
414.  THIS, THE COURT HELD, APPELLANTS HAD NOT DONE.  AT THAT TIME, OF
COURSE, SWANN V. ADAMS, 385 U.S. 440, HAD NOT BEEN ANNOUNCED.  UNDER
THAT CASE IT IS QUITE CLEAR THAT UNLESS SATISFACTORILY JUSTIFIED BY THE
COURT OR BY THE EVIDENCE OF RECORD, POPULATION VARIANCES OF THE SIZE
AND SIGNIFICANCE EVIDENT HERE ARE SUFFICIENT TO INVALIDATE AN
APPORTIONMENT PLAN.  WITHOUT SUCH JUSTIFICATION, APPELLANTS' ANALYSIS
OF H.B. 195 MADE OUT A SUFFICIENT CASE UNDER THE FOURTEENTH AMENDMENT. 

SECOND, THE DISTRICT COURT, NOT RESTING EXCLUSIVELY ON ITS BURDEN OF
PROOF RULING, FOUND THAT THE DEVIATIONS FROM THE EQUAL POPULATION
PRINCIPLE WERE AMPLY JUSTIFIED HERE BECAUSE THEY RESULTED FROM A BONA
FIDE ATTEMPT TO CONFORM TO THE STATE POLICY REQUIRING LEGISLATIVE
APPORTIONMENT PLANS TO RESPECT COUNTY BOUNDARIES WHEREVER POSSIBLE.  WE
ARE DOUBTFUL, HOWEVER, THAT THE DEVIATIONS EVIDENT HERE ARE THE KIND OF
"MINOR" VARIATIONS WHICH REYNOLDS V. SIMS INDICATED MIGHT BE JUSTIFIED
BY LOCAL POLICIES COUNSELING THE MAINTENANCE OF ESTABLISHED POLITICAL
SUBDIVISIONS IN APPORTIONMENT PLANS.  377 U.S. 533, 578-579.  BUT WE
NEED NOT REACH THAT CONSTITUTIONAL QUESTION, FOR WE ARE NOT CONVINCED
THAT THE ANNOUNCED POLICY OF THE STATE OF TEXAS NECESSITATED THE RANGE
OF DEVIATIONS BETWEEN LEGISLATIVE DISTRICTS WHICH IS EVIDENT HERE.  IN
THE FIRST PLACE, TEXAS POLICY, AS ELABORATED BY THE ATTORNEY GENERAL
AND CONCURRED IN BY THE DISTRICT COURT,  (FN2)  PERMITS THE FORMATION
OF MULTI-MEMBER AND FLOTERIAL DISTRICTS AND EVEN, WHERE NECESSARY, THE
VIOLATION OF COUNTY LINES IN ORDER TO SURMOUNT UNDUE POPULATION
VARIATIONS.  IN THE SECOND PLACE, THE DISTRICT COURT DID NOT RELATE ITS
DECLARED JUSTIFICATION TO ANY SPECIFIC INEQUALITIES AMONG THE
DISTRICTS, NOR DEMONSTRATE WHY OR HOW RESPECT FOR THE INTEGRITY OF
COUNTY LINES REQUIRED THE PARTICULAR DEVIATIONS CALLED FOR BY H.B.
195.  NOR DID THE DISTRICT COURT ARTICULATE ANY SATISFACTORY GROUNDS
FOR REJECTING AT LEAST TWO OTHER PLANS PRESENTED TO THE COURT, WHICH
RESPECTED COUNTY LINES BUT WHICH PRODUCED SUBSTANTIALLY SMALLER
DEVIATIONS FROM THE PRINCIPLES OF REYNOLDS V. SIMS.  SIMILAR FAULT CAN
BE FOUND IN ACCEPTING A GENERAL COUNTY-LINE JUSTIFICATION FOR THE
POPULATION DEVIATIONS THAT WOULD OCCUR SHOULD THE PRESENT FLOTERIAL
DISTRICTS BE RECONSTITUTED AS MULTI-MEMBER DISTRICTS.  THE RATIO
BETWEEN THE LARGEST RECONSTITUTED DISTRICT AND THE SMALLEST DISTRICT
CREATED BY H.B. 195 WOULD BE 1.21 TO 1, AND SEVEN REPRESENTATIVES WOULD
BE ELECTED FROM DISTRICTS OVERREPRESENTED BY 13% OR MORE.   ANOTHER
FIVE REPRESENTATIVES WOULD BE ELECTED FROM DISTRICTS OVERREPRESENTED BY
8% OR MORE. 

APPELLANTS ALSO RAISE SPECIFIC CHALLENGES TO THE PROVISIONS OF H.B.
195 WITH RESPECT TO DALLAS, BEXAR, AND HARRIS COUNTIES.  DALLAS AND
BEXAR COUNTIES ARE RELATIVELY DENSELY POPULATED MULTI-MEMBER
DISTRICTS.  MEASURED BY POPULATION ALONE, EACH COUNTY COULD SUPPORT ONE
MORE REPRESENTATIVE THAN IS ALLOCATED TO IT UNDER H.B. 195, AND THUS
MORE NEARLY APPROXIMATE THE ARITHMETIC IDEAL.  GIVING EACH OF THEM ONE
MORE REPRESENTATIVE WOULD NOT, OF COURSE, VIOLATE THEIR COUNTY LINES;
AND WE CANNOT BE SURE, AT LEAST ON THIS RECORD AND IN VIEW OF THE 150
MEMBER LIMIT ON THE HOUSE OF REPRESENTATIVES, THAT DALLAS AND BEXAR
COUNTIES MUST BE DENIED ADDITIONAL REPRESENTATION IN ORDER TO ADHERE TO
COUNTY LINES IN OTHER DISTRICTS THROUGHOUT THE STATE.  IF OTHER
DISTRICTS CANNOT BE RE-FORMED WITHIN COUNTY LINES IN SUCH A WAY AS TO
AFFORD DALLAS AND BEXAR COUNTIES ANOTHER REPRESENTATIVE AND AT THE SAME
TIME TO AFFORD THE RE-FORMED DISTRICTS CONSTITUTIONAL REPRESENTATION,
WE WOULD HAVE TO MEET THE QUESTION WHETHER THE STATE POLICY ADVANCED
HERE JUSTIFIES THE SEEMING  (FN3)  UNDERREPRESENTATION IN DALLAS AND
BEXAR COUNTIES, WHICH IS 6.42% AND 7.59% RESPECTIVELY.  BUT ON THE
RECORD THAT IS NOW BEFORE US WE DO NOT REACH THIS ISSUE AND BELIEVE
THAT THE DISTRICT COURT SHOULD GIVE FURTHER CONSIDERATION TO THESE
COUNTIES. 

APPELLANTS COMPLAIN THAT DISTRICT 24 IN HARRIS COUNTY IS ASSIGNED
ONLY SIX REPRESENTATIVES WHEREAS DISTRICT 22 IN THE SAME COUNTY WITH A
SLIGHTLY SMALLER POPULATION IS ASSIGNED SEVEN REPRESENTATIVES.   THE
COURT FOUND THE RECORD TO ESTABLISH THAT THE POPULATION IN DISTRICT 22
WAS GROWING RAPIDLY AS COMPARED WITH DISTRICT 24 AND WOULD SOON JUSTIFY
THE EXTRA REPRESENTATIVE.  THIS FACTUAL DETERMINATION NOT BEING
CHALLENGED HERE, WE ACCEPT THE RULING OF THE DISTRICT COURT REGARDING
THESE DISTRICTS. 

THE JUDGMENT IS REVERSED IN PART AND THE CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  TEX. REV. CIV. STAT. ANN., ART. 195A CONTAINS HOUSE BILL 195. 
THE SENATE REAPPORTIONMENT OF 1965, TEX. REV. CIV. STAT. ANN., ART.
193A, IS NOT HERE IN ISSUE. 

FN2  THE ATTORNEY GENERAL EXPRESSED THE STATE POLICY IN A LETTER TO
THE SPEAKER OF THE HOUSE, INCLUDED AS APPENDIX "D" IN THE OPINION
BELOW, 252 F. SUPP. 404, 455-456. 

                                      MAY 19, 1965. 

HONORABLE BEN BARNES. 

SPEAKER OF THE HOUSE. 

AUSTIN, TEXAS. 

DEAR MR. SPEAKER: 

AS A RESULT OF THE ANALYZING AND BRIEFING OF SECTION 26, ARTICLE III
OF THE TEXAS CONSTITUTION OF 1876 AND THE RECENT DECISIONS OF THE U.S.
SUPREME COURT ON THE SUBJECT OF STATE REAPPORTIONMENT, THIS OFFICE HAS
REACHED THE FOLLOWING LEGAL CONCLUSIONS. 

1.  WHENEVER A SINGLE COUNTY HAS SUFFICIENT POPULATION TO BE ENTITLED
TO MORE THAN ONE REPRESENTATIVE, ALL THE REPRESENTATIVES TO WHICH IT IS
ENTITLED SHALL BE APPORTIONED TO THAT COUNTY. 

2.  MULTI-REPRESENTATIVE COUNTIES MAY BE APPORTIONED SO THAT THE
REPRESENTATIVES CAN RUN AT-LARGE WITHIN THE COUNTY OR FROM INDIVIDUAL
DISTRICTS WITHIN THE COUNTY OR, A COMBINATION OF ANY OF THESE METHODS. 

3.  IF A SINGLE COUNTY DOES NOT HAVE SUFFICIENT POPULATION TO ENTITLE
IT TO ONE REPRESENTATIVE, SUCH COUNTY SHALL BE JOINED WITH ONE OR MORE
CONTIGUOUS COUNTIES UNTIL THE PROPER POPULATION RATIO IS ACHIEVED.  THE
ABOVE CITED PROVISION OF THE TEXAS CONSTITUTION REQUIRES THAT COUNTIES
BE KEPT INTACT AND THEIR BOUNDARIES NOT BE VIOLATED. 

4.  SHOULD THE KEEPING OF COUNTIES INTACT RESULT IN A VIOLATION OF
THE SUPREME COURT "ONE MAN, ONE VOTE" RULE, THEN THE COUNTY LINES MUST
BE VIOLATED BUT ONLY TO THE EXTENT NECESSARY TO CARRY OUT THE MANDATE
OF THE SUPREME COURT.  IN ALL OTHER INSTANCES, COUNTY LINES MUST REMAIN
INTACT AND MULTI-COUNTY DISTRICTS OR FLOTERIAL DISTRICTS BE FORMED BY
THE JOINING OF COMPLETE AND CONTIGUOUS COUNTIES. 

THE ABOVE LEGAL CONCLUSIONS HAVE BEEN SET OUT AS CLEARLY AND
CONCISELY AS POSSIBLE.  THESE CONCLUSIONS HAVE BEEN REACHED BY A
THOROUGH ANALYSIS OF THE TEXAS CONSTITUTIONAL PROVISIONS AS WELL AS
RECENT FEDERAL COURT DECISIONS.  OUR RESEARCH HAS ALSO THOROUGHLY
DEVELOPED THE LEGISLATIVE HISTORY AND LEGISLATIVE INTERPRETATION OF THE
LEGISLATIVE SESSIONS IMMEDIATELY PRIOR TO AND IMMEDIATELY SUBSEQUENT TO
THE ADOPTION OF THE CONSTITUTIONAL PROVISIONS INVOLVED. 

YOURS VERY TRULY: 

S/WAGGONER CARR. 

FN3 OUR CASES DO NOT FORECLOSE ATTEMPTS TO SHOW THAT IN THE
PARTICULAR CIRCUMSTANCES OF A GIVEN CASE MULTI-MEMBER DISTRICTS ARE
INVIDIOUSLY DISCRIMINATORY.  SEE BURNS V. RICHARDSON, 384 U.S. 73, 88
89.  IT HAS RECENTLY BEEN SUGGESTED THAT MULTI-MEMBER DISTRICTS SUCH AS
DALLAS AND BEXAR ARE ADEQUATELY REPRESENTED, IF NOT OVERREPRESENTED. 
SEE BANZHAF, MULTI-MEMBER ELECTORAL DISTRICTS - DO THEY VIOLATE THE
"ONE MAN, ONE VOTE" PRINCIPLE, 75 YALE L.J. 1309 (1966). 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I RESERVE DECISION ON ONE
ASPECT OF THE PROBLEM CONCERNING MULTI-MEMBER DISTRICTS. 

UNDER THE PRESENT REGIME EACH VOTER IN THE DISTRICT HAS ONE VOTE FOR
EACH OFFICE TO BE FILLED.  THIS ALLOWS THE MAJORITY TO DEFEAT THE
MINORITY ON ALL FRONTS.  IT IS SUGGESTED THAT IN MULTI-MEMBER DISTRICTS
EACH PERSON BE ABLE TO VOTE FOR ONLY ONE LEGISLATOR, THE THEORY BEING
THAT IN THAT WAY A MINORITY, EITHER POLITICAL OR OTHERWISE, WOULD HAVE
A CHANCE TO ELECT AT LEAST ONE REPRESENTATIVE. 

I AM NOT SURE IN MY OWN MIND HOW THIS PROBLEM SHOULD BE RESOLVED. 
BUT IN VIEW OF THE FACT THAT APPELLANTS CLAIM THAT MULTI-MEMBER
DISTRICTS OF TEXAS ARE CONSTRUCTED IN SUCH A MANNER THAT NEGROES ARE
EFFECTIVELY DISENFRANCHISED, I WOULD RESERVE THAT QUESTION FOR
CONSIDERATION WHEN THE CASE IS ONCE AGAIN BEFORE THE DISTRICT COURT. 

MR. JUSTICE CLARK WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT
OF THE DISTRICT COURT IN ITS ENTIRETY, ON THE BASIS OF THE REASONING
CONTAINED IN MR. JUSTICE HARLAN'S DISSENTING OPINION IN SWANN V. ADAMS,
385 U.S. 440, 447. 
..END :






MACDONALD V. CALIFORNIA 386 U.S. 127 


NO. 503, MISC.  DECIDED FEBRUARY 20, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MACDONALD V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF ORANGE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















KIMBRO V. HEER 386 U.S. 128 


NO. 751, MISC.  DECIDED FEBRUARY 20, 1967.  - CERTIORARI GRANTED; 364
F.2D 116, VACATED AND REMANDED. 


KIMBRO V. HEER, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE, FOR A HEARING.  TOWNSEND V. SAIN, 372 U.S. 293. 

MR. JUSTICE STEWART IS OF THE OPINION THAT CERTIORARI SHOULD BE
DENIED. 
..END :











MILLER V. PATE 386 U.S. 1 


NO. 250.  ARGUED JANUARY 11-12, 1967.  - DECIDED FEBRUARY 13, 1967.  -
342 F.2D 646, REVERSED AND REMANDED. 


PETITIONER WAS TRIED AND CONVICTED FOR RAPE-MURDER.  A CRUCIAL ELEMENT
OF THE CIRCUMSTANTIAL EVIDENCE AGAINST HIM WAS A PAIR OF MEN'S
UNDERWEAR SHORTS, ALLEGEDLY PETITIONER'S, BEARING STAINS IDENTIFIED BY
PROSECUTION TESTIMONY AS BLOOD OF THE VICTIM'S BLOOD TYPE.  THE
JUDGMENT OF CONVICTION WAS UPHELD ON APPEAL.  IN A SUBSEQUENT HABEAS
CORPUS PROCEEDING PETITIONER WAS FIRST ALLOWED TO HAVE THE SHORTS
SUBJECTED TO CHEMICAL ANALYSIS, WHICH REVEALED THAT THE STAINS WERE NOT
BLOOD, BUT PAINT.   IT WAS FURTHER ESTABLISHED THAT THE PROSECUTION
KNEW OF THE PAINT STAINS AT THE TIME OF TRIAL.  THE DISTRICT COURT, FOR
ANOTHER REASON, ORDERED PETITIONER'S RELEASE OR PROMPT RETRIAL.  THE
COURT OF APPEALS REVERSED.  HELD:  THE FOURTEENTH AMENDMENT CANNOT
TOLERATE A STATE CRIMINAL CONVICTION SECURED BY THE KNOWING USE OF
FALSE EVIDENCE.  MOONEY V. HOLOHAN, 294 U.S. 103, FOLLOWED.  PP. 2-7. 

MILLER V. PATE, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON NOVEMBER 26, 1955, IN CANTON, ILLINOIS, AN EIGHT-YEAR-OLD GIRL
DIED AS A RESULT OF A BRUTAL SEXUAL ATTACK.  THE PETITIONER WAS CHARGED
WITH HER MURDER. 

PRIOR TO HIS TRIAL IN AN ILLINOIS COURT, HIS COUNSEL FILED A MOTION
FOR AN ORDER PERMITTING A SCIENTIFIC INSPECTION OF THE PHYSICAL
EVIDENCE THE PROSECUTION INTENDED TO INTRODUCE.  (FN1)  THE MOTION WAS
RESISTED BY THE PROSECUTION AND DENIED BY THE COURT.  THE JURY TRIAL
ENDED IN A VERDICT OF GUILTY AND A SENTENCE OF DEATH.  ON APPEAL THE
JUDGMENT WAS AFFIRMED BY THE SUPREME COURT OF ILLINOIS.  (FN2)  ON THE
BASIS OF LEADS DEVELOPED AT A SUBSEQUENT UNSUCCESSFUL STATE CLEMENCY
HEARING, THE PETITIONER APPLIED TO A FEDERAL DISTRICT COURT FOR A WRIT
OF HABEAS CORPUS.  (FN3) AFTER A HEARING, THE COURT GRANTED THE WRIT
AND ORDERED THE PETITIONER'S RELEASE OR PROMPT RETRIAL.  (FN4)  THE
COURT OF APPEALS REVERSED, (FN5) AND WE GRANTED CERTIORARI TO CONSIDER
WHETHER THE TRIAL THAT LED TO THE PETITIONER'S CONVICTION WAS
CONSTITUTIONALLY VALID.  (FN6)  WE HAVE CONCLUDED THAT IT WAS NOT. 
(FN7) 

THERE WERE NO EYEWITNESSES TO THE BRUTAL CRIME WHICH THE PETITIONER
WAS CHARGED WITH PERPETRATING.   A VITAL COMPONENT OF THE CASE AGAINST
HIM WAS A PAIR OF MEN'S UNDERWEAR SHORTS COVERED WITH LARGE, DARK,
REDDISH-BROWN STAINS - PEOPLES EXHIBIT 3 IN THE TRIAL RECORD.  THESE
SHORTS HAD BEEN FOUND BY A CANTON POLICEMAN IN A PLACE KNOWN AS THE VAN
BUREN FLATS THREE DAYS AFTER THE MURDER.  THE VAN BUREN FLATS WERE
ABOUT A MILE FROM THE SCENE OF THE CRIME.  IT WAS THE PROSECUTION'S
THEORY THAT THE PETITIONER HAD BEEN WEARING THESE SHORTS WHEN HE
COMMITTED THE MURDER, AND THAT HE HAD AFTERWARDS REMOVED AND DISCARDED
THEM AT THE VAN BUREN FLATS. 

DURING THE PRESENTATION OF THE PROSECUTION'S CASE, PEOPLE'S EXHIBIT 3
WAS VARIOUSLY DESCRIBED BY WITNESSES IN SUCH TERMS AS THE "BLOODY
SHORTS" AND "A PAIR OF JOCKEY SHORTS STAINED WITH BLOOD."  EARLY IN THE
TRIAL THE VICTIM'S MOTHER TESTIFIED THAT HER DAUGHTER "HAD TYPE 'A'
POSITIVE BLOOD."  EVIDENCE WAS LATER INTRODUCED TO SHOW THAT THE
PETITIONER'S BLOOD "WAS OF GROUP 'O.'" 

AGAINST THIS BACKGROUND THE JURY HEARD THE TESTIMONY OF A CHEMIST FOR
THE STATE BUREAU OF CRIME IDENTIFICATION.  THE PROSECUTION ESTABLISHED
HIS QUALIFICATIONS AS AN EXPERT, WHOSE "DUTIES INCLUDE BLOOD
IDENTIFICATION, GROUPING AND TYPING BOTH DRY AND FRESH STAINS," AND WHO
HAD "MADE APPROXIMATELY ONE THOUSAND BLOOD TYPING ANALYSES WHILE AT THE
STATE BUREAU."  HIS CRUCIAL TESTIMONY WAS AS FOLLOWS: 

"I EXAMINED AND TESTED 'PEOPLE'S EXHIBIT 3' TO DETERMINE THE NATURE
OF THE STAINING MATERIAL UPON IT.  THE RESULT OF THE FIRST TEST WAS
THAT THIS MATERIAL UPON THE SHORTS IS BLOOD.  I MADE A SECOND
EXAMINATION WHICH DISCLOSED THAT THE BLOOD IS OF HUMAN ORIGIN.  I MADE
A FURTHER EXAMINATION WHICH DISCLOSED THAT THE BLOOD IS OF GROUP 'A.'" 

THE PETITIONER, TESTIFYING IN HIS OWN BEHALF, DENIED THAT HE HAD EVER
OWNED OR WORN THE SHORTS IN EVIDENCE AS PEOPLE'S EXHIBIT 3.  HE HIMSELF
REFERRED TO THE SHORTS AS HAVING "DRIED BLOOD ON THEM." 

IN ARGUMENT TO THE JURY THE PROSECUTOR MADE THE MOST OF PEOPLE'S
EXHIBIT 3: 

"THOSE SHORTS WERE FOUND IN THE VAN BUREN FLATS, WITH BLOOD.  WHAT
TYPE BLOOD?  NOT 'O' BLOOD AS THE DEFENDANT HAS, BUT 'A' - TYPE 'A.'" 

AND LATER IN HIS ARGUMENT HE SAID TO THE JURY: 

"AND, IF YOU WILL RECALL, IT HAS NEVER BEEN CONTRADICTED THE BLOOD
TYPE OF JANICE MAY WAS BLOOD TYPE 'A' POSITIVE.  BLOOD TYPE 'A.'  BLOOD
TYPE 'A' ON THESE SHORTS.  IT WASN'T 'O' TYPE AS THE DEFENDANT HAS.  IT
WAS 'A' TYPE, WHAT THE LITTLE GIRL HAD." 

SUCH WAS THE STATE OF THE EVIDENCE WITH RESPECT TO PEOPLE'S EXHIBIT 3
AS THE CASE WENT TO THE JURY.  AND SUCH WAS THE STATE OF THE RECORD AS
THE JUDGMENT OF CONVICTION WAS REVIEWED BY THE SUPREME COURT OF
ILLINOIS.  THE "BLOOD STAINED SHORTS" CLEARLY PLAYED A VITAL PART IN
THE CASE FOR THE PROSECUTION.  THEY WERE AN IMPORTANT LINK IN THE CHAIN
OF CIRCUMSTANTIAL EVIDENCE AGAINST THE PETITIONER, (FN8) AND, IN THE
CONTEXT OF THE REVOLTING CRIME WITH WHICH HE WAS CHARGED, THEIR
GRUESOMELY EMOTIONAL IMPACT UPON THE JURY WAS INCALCULABLE.  (FN9) 

SO MATTERS STOOD WITH RESPECT TO PEOPLE'S EXHIBIT 3, UNTIL THE
PRESENT HABEAS CORPUS PROCEEDING IN THE FEDERAL DISTRICT COURT.  (FN10)
IN THIS PROCEEDING THE STATE WAS ORDERED TO PRODUCE THE STAINED
SHORTS, AND THEY WERE ADMITTED IN EVIDENCE.  IT WAS ESTABLISHED THAT
THEIR APPEARANCE WAS THE SAME AS WHEN THEY HAD BEEN INTRODUCED AT THE
TRIAL AS PEOPLE'S EXHIBIT 3.  THE PETITIONER WAS PERMITTED TO HAVE THE
SHORTS EXAMINED BY A CHEMICAL MICROANALYST.  WHAT THE MICROANALYST
FOUND CAST AN EXTRAORDINARY NEW LIGHT ON PEOPLE'S EXHIBIT 3.  THE
REDDISH-BROWN STAINS ON THE SHORTS WERE NOT BLOOD, BUT PAINT. 

THE WITNESS SAID THAT HE HAD TESTED THREADS FROM EACH OF THE 10
REDDISH-BROWN STAINED AREAS ON THE SHORTS, AND THAT HE HAD FOUND THAT
ALL OF THEM WERE ENCRUSTED WITH MINERAL PIGMENTS "  ...  WHICH ONE
COMMONLY USES IN THE PREPARATION OF PAINTS."  HE FOUND "NO TRACES OF
HUMAN BLOOD."  (FN11)  THE STATE DID NOT DISPUTE THIS TESTIMONY, ITS
COUNSEL CONTENTING HIMSELF WITH PREVAILING UPON THE WITNESS TO CONCEDE
ON CROSS-EXAMINATION THAT HE COULD NOT SWEAR THAT THERE HAD NEVER BEEN
ANY BLOOD ON THE SHORTS.  (FN12) 

IT WAS FURTHER ESTABLISHED THAT COUNSEL FOR THE PROSECUTION HAD KNOWN
AT THE TIME OF THE TRIAL THAT THE SHORTS WERE STAINED WITH PAINT.  THE
PROSECUTOR EVEN ADMITTED THAT THE CANTON POLICE HAD PREPARED A
MEMORANDUM ATTEMPTING TO EXPLAIN "HOW THIS EXHIBIT CONTAINS ALL THE
PAINT ON IT." 

IN ARGUMENT AT THE CLOSE OF THE HABEAS CORPUS HEARING, COUNSEL FOR
THE STATE CONTENDED THAT "EVERYBODY" AT THE TRIAL HAD KNOWN THAT THE
SHORTS WERE STAINED WITH PAINT.  (FN13)  THAT CONTENTION IS TOTALLY
BELIED BY THE RECORD.  THE MICROANALYST CORRECTLY DESCRIBED THE
APPEARANCE OF THE SHORTS WHEN HE SAID, "I ASSUMED I WAS DEALING  ...
WITH A PAIR OF SHORTS WHICH WERE HEAVILY STAINED WITH BLOOD  ...  .  IT
WOULD APPEAR TO A LAYMAN  ...  THAT WHAT I SEE BEFORE ME IS A GARMENT
HEAVILY STAINED WITH BLOOD."  (FN14)  THE RECORD OF THE PETITIONER'S
TRIAL REFLECTS THE PROSECUTION'S CONSISTENT AND REPEATED
MISREPRESENTATION THAT PEOPLE'S EXHIBIT 3 WAS, INDEED, "A GARMENT
HEAVILY STAINED WITH BLOOD."  THE PROSECUTION'S WHOLE THEORY WITH
RESPECT TO THE EXHIBIT DEPENDED UPON THAT MISREPRESENTATION.  FOR THE
THEORY WAS THAT THE VICTIM'S ASSAILANT HAD DISCARDED THE SHORTS BECAUSE
THEY WERE STAINED WITH BLOOD.  A PAIR OF PAINT-STAINED SHORTS, FOUND IN
AN ABANDONED BUILDING A MILE AWAY FROM THE SCENE OF THE CRIME, WAS
VIRTUALLY VALUELESS AS EVIDENCE AGAINST THE PETITIONER.  (FN15)  THE
PROSECUTION DELIBERATELY MISREPRESENTED THE TRUTH. 

MORE THAN 30 YEARS AGO THIS COURT HELD THAT THE FOURTEENTH AMENDMENT
CANNOT TOLERATE A STATE CRIMINAL CONVICTION OBTAINED BY THE KNOWING USE
OF FALSE EVIDENCE.  MOONEY V. HOLOHAN, 294 U.S. 103.   THERE HAS BEEN
NO DEVIATION FROM THAT ESTABLISHED PRINCIPLE.  NAPUE V. ILLINOIS, 360
U.S. 264; PYLE V. KANSAS, 317 U.S. 213; CF. ALCORTA V. TEXAS, 355 U.S.
28.  THERE CAN BE NO RETREAT FROM THAT PRINCIPLE HERE. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED. 

FN1  "COMES NOW THE DEFENDANT, LLOYD ELDON MILLER JUNIOR, BY WILLIAM
H. MALMGREN, HIS ATTORNEY, AND HEREBY MOVES THE COURT TO ENTER AN ORDER
PERMITTING DEFENDANT TO MAKE, OR CAUSE TO BE MADE, UPON SUCH TERMS AND
CONDITIONS AS TO THE COURT SEEMS NECESSARY TO ADEQUATELY INSURE THE
INTERESTS OF THE PARTIES, A SCIENTIFIC EXAMINATION OF THE PHYSICAL
EVIDENCE TO BE INTRODUCED BY THE PEOPLE IN THIS CAUSE AND, TO THAT END,
ENTER AN ORDER REQUIRING THE PEOPLE, BY THEIR ATTORNEY, TO PRODUCE AND
MAKE AVAILABLE ALL OF SAID EVIDENCE FOR SUCH AN EXAMINATION. 

"FOR CAUSE, MOVANT SAYS THAT SUCH AN EXAMINATION IS NECESSARY TO
ADEQUATELY PREPARE THE DEFENSE HEREIN." 

FN2  13 ILL. 2D 84, 184 N.E.2D 455. 

FN3  AN EARLIER FEDERAL HABEAS CORPUS APPLICATION HAD BEEN
UNSUCCESSFUL.  MILLER V. PATE, 300 F.2D 414 

FN4  226 F. SUPP. 541. 

FN5  342 F.2D 646. 

FN6  384 U.S. 998. 

FN7  THE PETITIONER HAS RELIED UPON SEVERAL DIFFERENT GROUNDS FOR
REVERSAL OF THE JUDGMENT OF THE COURT OF APPEALS.  IN DECIDING THE CASE
UPON ONLY ONE OF THOSE GROUNDS, WE INTIMATE NO VIEW AS TO THE MERITS OF
THE OTHERS. 

FN8  IN AFFIRMING THE PETITIONER'S CONVICTION, THE SUPREME COURT OF
ILLINOIS STATED THAT "IT WAS DETERMINED" THAT THE SHORTS "WERE STAINED
WITH HUMAN BLOOD FROM GROUP A," AND REFERRED TO THE PETITIONER'S
"BLOODY SHORTS."  13 ILL. 2D, AT 89 AND 106, 148 N.E.2D, AT 458 AND
467. 

FN9  PEOPLE'S EXHIBIT 3 WAS FORWARDED HERE AS PART OF THE RECORD, AND
WE HAVE ACCORDINGLY HAD AN OPPORTUNITY TO SEE IT WITH OUR OWN EYES. 

FN10  AT THE STATE CLEMENCY HEARING, SOME ADDITIONAL EVIDENCE WAS
ADDUCED TO SHOW THAT THE SHORTS HAD NOT BELONGED TO THE PETITIONER. 

FN11  THERE WERE TWO OTHER DISCOLORED AREAS ON THE SHORTS, ONE BLACK
AND THE OTHER "A KIND OF YELLOWISH COLOR."  A THREAD FROM THE FIRST OF
THESE AREAS CONTAINED MATERIAL "SIMILAR TO A PARTICLE OF CARBON."  "NO
PARTICULATES SHOWED UP" ON THE THREAD TAKEN FROM THE OTHER. 

FN12  THE WITNESS POINTED OUT, HOWEVER, THAT "BLOOD SUBSTANCES ARE
DETECTABLE OVER PROLONGED PERIODS.  THAT IS, THERE ARE RECORDS OF
RESEARCHES IN WHICH SUBSTANCES EXTRACTED FROM EGYPTIAN MUMMIES HAVE
BEEN IDENTIFIED AS BLOOD." 

FN13  "NOW, THEN, CONCERNING THE PAINT ON THE SHORTS, THE PETITIONER
YESTERDAY INTRODUCED SCIENTIFIC EVIDENCE TO PROVE THAT THERE WAS PAINT
ON THE SHORTS, A FACT THAT THEY KNEW WITHOUT SCIENTIFIC EVIDENCE. 
EVERYBODY KNEW, IN CONNECTION WITH THE CASE, WHOEVER LOOKED AT THE
SHORTS, AND I THINK THAT THE COURT CAN LOOK AT THEM NOW AND KNOW THERE
IS PAINT ON THEM.  THIS IS NOT ANYTHING THAT WAS NOT DISCLOSED TO
ANYBODY.  IT IS VERY OBVIOUS BY MERELY LOOKING AT THEM  ...  ." 

FN14  SEE N. 9, SUPRA. 

FN15  THE PETITIONER WAS NOT A PAINTER BUT A TAXI DRIVER. 
..END :










FLORIDA EAST COAST RAILWAY CO. V. UNITED STATES 386 U.S. 8 


NO. 715.  DECIDED FEBRUARY 13, 1967.  - 256 F. SUPP. 986, AFFIRMED. 


FLORIDA EAST COAST RAILWAY CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF FLORIDA. 

PER CURIAM. 

THE MOTION OF DADE COUNTY ET AL. TO JOIN SEABOARD AIR LINE RAILROAD
COMPANY IN ITS MOTION TO AFFIRM IS GRANTED. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :















D'AMICO V. PENNSYLVANIA 386 U.S. 8 


NO. 858.  DECIDED FEBRUARY 13, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


D'AMICO V. PENNSYLVANIA ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :












WOODINGTON V. WISCONSIN 386 U.S. 9 


NO. 801.  DECIDED FEBRUARY 13, 1967.  - 31 WIS. 2D 151, 142 N.W.2D 810,
143 N.W.2D 753, APPEAL DISMISSED AND CERTIORARI DENIED. 


WOODINGTON V. WISCONSIN. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WEISS V. GARDNER 386 U.S. 9 


NO. 904.  DECIDED FEBRUARY 13, 1967.  - 263 F. SUPP. 184, VACATED AND
REMANDED. 


WEISS ET AL. V. GARDNER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE JUDGMENT OF THE COURT BELOW IS VACATED AND THE CASE IS REMANDED
TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK WITH INSTRUCTIONS TO DISMISS THE COMPLAINT AS MOOT. 
..END :














FENSTER V. LEARY 386 U.S. 10 


NO. 905.  DECIDED FEBRUARY 13, 1967.  - 264 F. SUPP. 153, AFFIRMED. 


FENSTER V. LEARY, COMMISSIONER OF POLICE OF THE CITY OF NEW YORK, ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














RISCH V. RISCH 386 U.S. 10 


NO. 963, MISC.  DECIDED FEBRUARY 13, 1967.  - 395 S.W.2D 709, APPEAL
DISMISSED AND CERTIORARI DENIED. 


RISCH V. RISCH. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















STONEHAM V. TEXAS 386 U.S. 11 


NO. 18, MISC.  DECIDED FEBRUARY 13, 1967.  - 389 S.W.2D 468, APPEAL
DISMISSED. 


STONEHAM V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 

THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, AND MR. JUSTICE FORTAS WOULD
REVERSE THE JUDGMENT OF THE COURT BELOW FOR THE REASONS STATED IN THE
OPINION OF THE CHIEF JUSTICE IN SPENCER V. TEXAS, 385 U.S. 554, 569. 
..END :














BEER V. ATTORNEY GENERAL OF CALIFORNIA 386 U.S. 11 


NO. 858, MISC.  DECIDED FEBRUARY 13, 1967.  - AFFIRMED. 


BEER V. ATTORNEY GENERAL OF CALIFORNIA. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

AN APPLICATION FOR A STAY ADDRESSED TO MR. JUSTICE DOUGLAS, AND BY
HIM REFERRED TO THE COURT, IS DENIED. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :












MILANI V. ILLINOIS 386 U.S. 12 


NO. 414, MISC.  DECIDED FEBRUARY 13, 1967.  - CERTIORARI GRANTED; 34
ILL. 2D 524, 216 N.E.2D 816, REVERSED. 


MILANI V. ILLINOIS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME
COURT OF ILLINOIS IS REVERSED.  DOUGLAS V. CALIFORNIA, 372 U.S. 353. 
..END :
















DALE V. CALIFORNIA 386 U.S. 12 


NO. 1030, MISC.  DECIDED FEBRUARY 13, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


DALE V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ALLISON V. UNITED STATES 386 U.S. 13 


NO. 454, MISC.  DECIDED FEBRUARY 13, 1967.  - CERTIORARI GRANTED; 358
F.2D 60, VACATED AND REMANDED. 


ALLISON V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT WITH INSTRUCTIONS TO GRANT THE PETITIONER AN APPEAL WITH
COUNSEL. 
..END :













HOLMES V. SUPERIOR COURT OF CALIFORNIA 386 U.S. 13 


NO. 1063, MISC.  DECIDED FEBRUARY 13, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HOLMES V. SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN
FRANCISCO. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















RUNDLE V. JOHNSON 386 U.S. 14 


NO. 14.  DECIDED FEBRUARY 13, 1967.  - CERTIORARI GRANTED; 349 F.2D 416,
REVERSED AND REMANDED. 


RUNDLE, CORRECTIONAL SUPERINTENDENT V. JOHNSON. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE MOTION OF RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND
THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT IS REVERSED,
SPENCER V. TEXAS, 385 U.S. 554, AND THE CASE IS REMANDED TO THAT COURT
FOR CONSIDERATION OF THE UNRESOLVED ISSUES. 

MR. JUSTICE DOUGLAS DISSENTS FROM THE REVERSAL OF THE COURT OF
APPEALS IN UNITED STATES V. RUNDLE, 349 F.2D 416, WHICH AFFIRMED UNITED
STATES V. RUNDLE, 243 F. SUPP. 695, 700, WHERE THE DISTRICT COURT
GRANTED THE PETITION FOR HABEAS CORPUS SINCE THE INTRODUCTION OF THE
ACCUSED'S "PRIOR CRIMINAL RECORD FOR OBSTRUCTING A RAILROAD WAS SO
FUNDAMENTALLY UNFAIR AS TO DENY HIM DUE PROCESS OF LAW." 
..END :






ZUCKERMAN V. GREASON 386 U.S. 15 


NO. 71.  DECIDED FEBRUARY 13, 1967.  - CERTIORARI GRANTED; 23 APP. DIV.
2D 825, 259 N.Y.S.2D 963, VACATED AND REMANDED. 


ZUCKERMAN ET AL. V. GREASON. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK, SECOND JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK, SECOND JUDICIAL DEPARTMENT, FOR
RECONSIDERATION IN LIGHT OF SPEVACK V. KLEIN, 385 U.S. 511. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART WOULD
AFFIRM THE JUDGMENT BELOW FOR THE REASONS SET FORTH IN MR. JUSTICE
HARLAN'S DISSENTING OPINION IN SPEVACK V. KLEIN, 385 U.S., AT 520. 

MR. JUSTICE WHITE DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN GARRITY V. NEW JERSEY, AND SPEVACK V. KLEIN, 385 U.S., AT
530. 
..END :






BARLOW V. TEXAS 386 U.S. 16 


NO. 109.  DECIDED FEBRUARY 13, 1967.  - 398 S.W.2D 933, APPEAL
DISMISSED. 


BARLOW V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, AND MR. JUSTICE FORTAS WOULD
REVERSE THE JUDGMENT OF THE COURT BELOW FOR THE REASONS STATED IN THE
OPINION OF THE CHIEF JUSTICE IN SPENCER V. TEXAS, 385 U.S. 554, 569. 
..END :














KAYE V. NEW YORK 386 U.S. 17 


NO. 300.  DECIDED FEBRUARY 13, 1967.  - CERTIORARI GRANTED; 24 APP. DIV.
2D 345, 266 N.Y.S.2D 69, VACATED AND REMANDED. 


KAYE V. CO-ORDINATING COMMITTEE ON DISCIPLINE OF THE ASSOCIATION OF THE
BAR OF THE CITY OF NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT, FOR
RECONSIDERATION IN LIGHT OF SPEVACK V. KLEIN, 385 U.S. 511. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN, AND MR. JUSTICE STEWART WOULD
AFFIRM THE JUDGMENT BELOW FOR THE REASONS STATED IN THE DISSENTING
OPINIONS OF MR. JUSTICE HARLAN IN SPEVACK V. KLEIN, 385 U.S., AT 520,
AND GARRITY V. NEW JERSEY, 385 U.S. 493, 500. 

MR. JUSTICE WHITE DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN GARRITY V. NEW JERSEY, AND SPEVACK V. KLEIN, 385 U.S., AT
530. 
..END :




SIMS V. GEORGIA 385 U.S. 538 


NO. 251.  ARGUED DECEMBER 6-7, 1966.  - DECIDED JANUARY 23, 1967.  - 221
GA. 190, 144 S.E.2D 103, REVERSED AND REMANDED. 


WHERE PETITIONER TIMELY RAISED THE ISSUE OF VOLUNTARINESS OF HIS
CONFESSION, THE TESTIMONY ON THE POINT WAS CONFLICTING, AND THE TRIAL
JUDGE FAILED TO RULE ON THE MATTER BUT LEFT THE QUESTION SOLELY TO THE
JURY, HELD:  REVERSED AND REMANDED FOR A HEARING IN ACCORDANCE WITH THE
RULE IN JACKSON V. DENNO, 378 U.S. 368.  THE TRIAL JUDGE NEED NOT MAKE
FORMAL FINDINGS OF FACT OR WRITE AN OPINION, BUT IT MUST CLEARLY APPEAR
FROM THE RECORD THAT HE MADE A PRIMARY FINDING OF VOLUNTARINESS BEFORE
THE CONFESSION WAS INTRODUCED INTO EVIDENCE BEFORE THE JURY.  PP. 542
544. 

SIMS V. GEORGIA. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A NEGRO, HAS BEEN CONVICTED OF RAPING A WHITE WOMAN AND
HAS BEEN GIVEN THE DEATH PENALTY.  HE RAISES FIVE FEDERAL QUESTIONS
(FN1) FOR CONSIDERATION BY THIS COURT, AMONG WHICH IS THAT HIS
FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL WERE VIOLATED BY THE STATE
TRIAL JUDGE'S FAILURE TO DETERMINE THE VOLUNTARINESS OF HIS ALLEGED
CONFESSION PRIOR TO ITS ADMISSION INTO EVIDENCE BEFORE THE JURY, AS
REQUIRED BY THE RULE IN JACKSON V. DENNO, 378 U.S. 368 (1964).  THE
SUPREME COURT OF GEORGIA RULED THAT JACKSON WAS NOT APPLICABLE AND
AFFIRMED PETITIONER'S CONVICTION, SIMS V. STATE, 221 GA. 190, 144
S.E.2D 103.  WE GRANTED CERTIORARI LIMITED TO THE FIVE QUESTIONS, 384
U.S. 998.  WE HAVE DETERMINED THAT PETITIONER'S CASE IS CONTROLLED BY
JACKSON, SUPRA, AND THEREFORE WE DO NOT REACH ANY OF THE OTHER ISSUES
RAISED. 

                                        I. 

THE RECORD INDICATES THAT ON APRIL 13, 1963, A 29-YEAR-OLD WHITE
WOMAN WAS DRIVING HOME ALONE IN HER AUTOMOBILE WHEN PETITIONER DROVE UP
BEHIND HER IN HIS CAR, FORCED HER OFF THE ROAD INTO A DITCH, TOOK THE
WOMAN FROM HER CAR INTO NEARBY WOODS AND FORCIBLY RAPED HER.  WHEN HE
RETURNED TO HIS CAR, HE COULD NOT START THE ENGINE SO HE LEFT THE SCENE
ON FOOT.  SOME FOUR HOURS LATER HE WAS APPREHENDED BY SOME NEGRO
WORKERS WHO HAD BEEN ALERTED TO BE ON THE WATCH FOR HIM.  HE TOLD THESE
NEGROES THAT HE HAD ATTACKED A WHITE WOMAN.  THEY THEN TURNED
PETITIONER OVER TO THEIR EMPLOYER WHO DELIVERED HIM TO TWO STATE
PATROLMEN.  HE WAS THEN TAKEN TO THE OFFICE OF A DOCTOR JACKSON WHO HAD
PREVIOUSLY EXAMINED THE VICTIM.  PETITIONER'S CLOTHING WAS REMOVED IN
ORDER TO TEST IT FOR BLOOD STAINS.  PETITIONER TESTIFIED THAT WHILE HE
WAS IN DOCTOR JACKSON'S OFFICE HE WAS KNOCKED DOWN, KICKED OVER THE
RIGHT EYE AND PULLED AROUND THE FLOOR BY HIS PRIVATE PARTS.  HE WAS
TAKEN TO A HOSPITAL OWNED BY DOCTOR JACKSON, WHICH WAS ADJACENT TO HIS
OFFICE, WHERE FOUR STITCHES WERE TAKEN IN HIS FOREHEAD.  THEREAFTER THE
PATROLMEN TOOK PETITIONER TO WAYCROSS, GEORGIA, SOME 30 MILES DISTANT,
WHERE HE WAS PLACED IN THE COUNTY JAIL.  DURING THAT EVENING, HE SAW A
DEPUTY SHERIFF WHOM HE HAD KNOWN FOR SOME 13 YEARS AND WHO WAS ON DUTY
ON THE SAME FLOOR OF THE JAIL WHERE PETITIONER WAS INCARCERATED.  HE
AGREED TO MAKE A STATEMENT AND WAS TAKEN TO AN INTERVIEW ROOM WHERE, IN
THE PRESENCE OF THE SHERIFF, THE DEPUTY SHERIFF AND TWO POLICE
OFFICERS, HE SIGNED A WRITTEN CONFESSION.   TWO DAYS LATER HE WAS
ARRAIGNED. 

PRIOR TO TRIAL PETITIONER FILED A MOTION TO SUPPRESS THE CONFESSION
AS BEING THE RESULT OF COERCION.  A HEARING WAS HELD BEFORE THE COURT
OUT OF THE PRESENCE OF THE JURY.  THE SHERIFF AND THE DEPUTY TESTIFIED
TO THE CIRCUMSTANCES SURROUNDING THE TAKING AND SIGNING OF THE
CONFESSION.  PETITIONER TESTIFIED AS TO THE ABUSE HE HAD RECEIVED WHILE
IN DOCTOR JACKSON'S OFFICE.  HE TESTIFIED THAT HE "FELT PRETTY ROUGH
FOR ABOUT TWO OR THREE WEEKS (AFTER THE INCIDENT), MORE ON MY PRIVATE
THAN I DID ON MY FACE" AND THAT HE "WAS PAINING A RIGHT SMART."  THERE
WAS NO CONTRADICTORY TESTIMONY TAKEN.  THE COURT DENIED THE MOTION TO
SUPPRESS WITHOUT OPINION OR FINDINGS AND THE CONFESSION WAS ADMITTED
INTO EVIDENCE AT PETITIONER'S TRIAL. 

AT THE TRIAL, DOCTOR JACKSON WAS A WITNESS FOR THE STATE.  ON CROSS
EXAMINATION HE DENIED THAT HE HAD KNOCKED PETITIONER DOWN WHILE THE
LATTER WAS IN HIS OFFICE, OR THAT HE HAD KICKED HIM IN THE FOREHEAD BUT
MADE NO MENTION OF THE OTHER ABUSE ABOUT WHICH PETITIONER TESTIFIED. 
THE DOCTOR STATED THAT PETITIONER WAS NOT ABUSED IN HIS PRESENCE BUT HE
REFUSED TO SAY WHETHER THE PATROLMEN PRESENT ABUSED PETITIONER AS HE
WAS NOT IN THE OFFICE AT ALL TIMES WHILE THE PETITIONER WAS THERE WITH
THE PATROLMEN.  IN THIS STATE OF THE RECORD PETITIONER'S TESTIMONY IN
THIS REGARD WAS LEFT UNCONTRADICTED. 

              II. 

THERE IS NO ACTUAL RULING OR FINDING IN THE RECORD SHOWING THAT THE
TRIAL JUDGE DETERMINED THE VOLUNTARINESS OF THE CONFESSION.  ALTHOUGH
HE ADMITTED IT INTO EVIDENCE, IT APPEARS THAT HE WAS ONLY FOLLOWING A
LONG-STANDING STATE PRACTICE THAT THE "STATE HAVING MADE OUT A PRIMA
FACIE CASE THAT THE ALLEGED CONFESSION WAS FREELY AND VOLUNTARILY MADE,
IT WAS A QUESTION FOR THE JURY TO DETERMINE ON CONFLICTING EVIDENCE
WHETHER THE ALLEGED CONFESSION WAS FREELY AND VOLUNTARILY MADE."  DOWNS
V. STATE, 208 G. 619, 621, 68 S.E.2D 568, 570.  DEFENSE COUNSEL CALLED
THE COURT'S ATTENTION TO THE JACKSON V. DENNO RULING OF THIS COURT AND
STATED THAT HE DID NOT "KNOW WHETHER THE PROCEDURE BEING FOLLOWED AT
THIS TIME SATISFIES THE RULE DECIDED BY THE SUPREME COURT ON JUNE 22ND,
1964, THAT THE COURT MUST MAKE JUDICIAL DETERMINATION WHETHER THE
STATEMENT WAS MADE VOLUNTARILY BEFORE IT IS READ TO THE JURY."  IN HIS
CHARGE TO THE JURY THE JUDGE DIRECTED THAT IT WAS FOR THE JURY TO
DETERMINE WHETHER THE CONFESSION WAS ACTUALLY MADE OR NOT AND TO
DISREGARD IT IF NOT MADE FREELY AND VOLUNTARILY. 

                      III. 

ON APPEAL TO THE SUPREME COURT OF GEORGIA, IT WAS HELD PROPER FOR THE
TRIAL JUDGE TO HAVE LEFT THE QUESTION OF THE VOLUNTARINESS OF THE
CONFESSION TO THE JURORS WITH INSTRUCTIONS THAT THEY SHOULD DISREGARD
IT IF THEY SHOULD DETERMINE THAT IT WAS NOT, IN FACT, VOLUNTARILY
MADE.  INDEED, THAT COURT SPECIFICALLY FOUND THAT THE "RELATED FACTS
MADE A PRIMA FACIE SHOWING THAT THE STATEMENT WAS FREELY AND
VOLUNTARILY MADE AND ADMISSIBLE IN EVIDENCE."  221 GA., AT 198, 144
S.E.2D, AT 110.  IT THEREFORE SEEMS CLEAR FROM THE OPINION OF THE
HIGHEST COURT OF GEORGIA THAT IT HAS APPLIED ITS OWN RULE RATHER THAN
HAVING FOLLOWED THE RULE SET DOWN IN JACKSON FOR THE PROCEDURAL
DETERMINATION OF THE VOLUNTARINESS OF A CONFESSION.  THIS CONCLUSION IS
BUTTRESSED BY THE FACT THAT THE COURT BELOW ALSO FOUND THAT THE
"GEORGIA RULE PRESENTS THE QUESTION TO THE JURY WITHOUT GIVING THEM THE
JUDGMENT OF THE JUDGE."  ID., AT 200, 144 S.E.2D, AT 111.  THIS IS THE
EXACT PROCEDURAL DEVICE WHICH IS PROSCRIBED BY THE RULE IN JACKSON. 

                      IV. 

THE SUPREME COURT OF GEORGIA REASONED, HOWEVER, THAT JACKSON WAS NOT
APPLICABLE BECAUSE OF THE SAFEGUARDS THAT GEORGIA'S LAWS ERECT AROUND
THE USE OF CONFESSIONS.  IT POINTED OUT THAT UNDER GEORGIA LAW, BEFORE
A CONFESSION MAY BE ADMITTED IT MUST BE CORROBORATED AND A SHOWING MADE
THAT IT WAS FREELY AND VOLUNTARILY GIVEN.  IN ADDITION, THE TRIAL JUDGE
HAS THE POWER TO SET ASIDE THE VERDICT OF THE JURY AND GRANT A NEW
TRIAL IF, IN HIS OPINION, THE JURY WAS IN ERROR.  THE COURT CONCLUDED
THAT THE RULE IN JACKSON IS SATISFIED BY GEORGIA LAW AND THAT "IT WOULD
BE DIFFICULT TO FIND A MORE COMPLETE SATISFACTION OF THE REQUIREMENT OF
JACKSON THAN GEORGIA PROVIDES."  ID., AT 201, 144 S.E.2D, AT 111.  THE
COURT ALSO FELT THAT IF THIS NOT BE TRUE, IN ANY EVENT, "THE UNSOUND
IMPLICATIONS OF JACKSON SHOULD NOT BE EXTENDED ONE IOTA TO MAKE IT
COVER CASES NOT EXPLICITLY COVERED BY IT SUCH AS THIS CASE WHERE THERE
WAS NO EVIDENCE TO MAKE ANY ISSUE OF VOLUNTARINESS.  WITHOUT AN ISSUE
THERE IS NOTHING TO TRY."  IBID.  WE CANNOT AGREE.  THERE WAS A
DEFINITE, CLEAR-CUT ISSUE HERE.  PETITIONER TESTIFIED THAT DOCTOR
JACKSON PHYSICALLY ABUSED HIM WHILE HE WAS IN HIS OFFICE AND THAT HE
WAS SUFFERING FROM THAT ABUSE WHEN HE MADE THE STATEMENT, THEREBY
RENDERING SUCH CONFESSION INVOLUNTARY AND THE RESULT OF COERCION.  THE
DOCTOR ADMITTED THAT HE SAW PETITIONER ON THE FLOOR OF HIS OFFICE; THAT
HE HELPED HIM DISROBE AND THAT HE KNEW THAT PETITIONER REQUIRED
HOSPITAL TREATMENT BECAUSE OF THE LACERATION OVER HIS EYE BUT HE DENIED
THAT PETITIONER WAS ACTUALLY ABUSED IN HIS PRESENCE.  HE WAS UNABLE TO
STATE, HOWEVER, THAT THE STATE PATROLMEN DID NOT COMMIT THE ALLEGED
OFFENSES AGAINST PETITIONER'S PERSON BECAUSE HE WAS NOT IN THE ROOM
DURING THE ENTIRE TIME IN WHICH THE PETITIONER AND THE PATROLMEN WERE
THERE.  IN FACT, THE DOCTOR WAS QUITE EVASIVE IN HIS TESTIMONY AND NONE
OF THE OFFICERS PRESENT DURING THE INCIDENT WERE PRODUCED AS
WITNESSES.  PETITIONER'S CLAIM OF MISTREATMENT, THEREFORE, WENT
UNCONTRADICTED AS TO THE OFFICERS AND WAS IN CONFLICT WITH THE
TESTIMONY OF THE PHYSICIAN.  UNDER JACKSON, IT WAS FOR THE TRIAL JUDGE
TO FIRST DECIDE THESE CONFLICTS AND DISCREPANCIES.  THIS HE FAILED TO
DO. 

FURTHERMORE, GEORGIA'S HIGHEST COURT, IN FINDING THAT ITS RULE
SATISFIED THE REQUIREMENTS OF JACKSON, OVERLOOKED THE FACT THAT THE
SAME SAFEGUARDS OFFERED BY THE GEORGIA PRACTICE WERE PRESENT IN THE
PROCEDURES OF NEW YORK IN JACKSON AND WERE REJECTED BY THIS COURT.  A
CONSTITUTIONAL RULE WAS LAID DOWN IN THAT CASE THAT A JURY IS NOT TO
HEAR A CONFESSION UNLESS AND UNTIL THE TRIAL JUDGE HAS DETERMINED THAT
IT WAS FREELY AND VOLUNTARILY GIVEN.  THE RULE ALLOWS THE JURY, IF IT
SO CHOOSES, TO GIVE ABSOLUTELY NO WEIGHT TO THE CONFESSION IN
DETERMINING THE GUILT OR INNOCENCE OF THE DEFENDANT BUT IT IS NOT FOR
THE JURY TO MAKE THE PRIMARY DETERMINATION OF VOLUNTARINESS.  ALTHOUGH
THE JUDGE NEED NOT MAKE FORMAL FINDINGS OF FACT OR WRITE AN OPINION,
HIS CONCLUSION THAT THE CONFESSION IS VOLUNTARY MUST APPEAR FROM THE
RECORD WITH UNMISTAKABLE CLARITY.  HERE THERE HAS BEEN ABSOLUTELY NO
RULING ON THAT ISSUE AND IT IS THEREFORE IMPOSSIBLE TO KNOW WHETHER THE
JUDGE THOUGHT THE CONFESSION VOLUNTARY OR IF THE JURY CONSIDERED IT AS
SUCH IN ITS DETERMINATION OF GUILT.  JACKSON, HAVING BEEN DECIDED JUNE
22, 1964, WAS BINDING ON THE COURTS OF GEORGIA IN THIS CASE, IT HAVING
BEEN TRIED OCTOBER 7, 1964.  SUCH RULE IS, AS WE HAVE SAID, A
CONSTITUTIONAL RULE BINDING UPON THE STATES AND, UNDER THE SUPREMACY
CLAUSE OF ARTICLE VI OF THE CONSTITUTION, IT MUST BE OBEYED. 

THE JUDGMENT IS, THEREFORE, REVERSED AND CAUSE IS REMANDED FOR A
HEARING AS PROVIDED BY JACKSON V. DENNO, SUPRA, AT 393-396.  (FN2)  IT
IS SO ORDERED. 

FN1  THE FIVE QUESTIONS ARE: 

"1.  WHETHER PETITIONER'S FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED
BY A CONVICTION AND SENTENCE TO DEATH OBTAINED ON THE BASIS OF A
CONFESSION MADE UNDER INHERENTLY COERCIVE CIRCUMSTANCES WITHIN THE
DOCTRINE OF FIKES V. ALABAMA, 352 U.S. 191. 

"2.  WHETHER PETITIONER'S FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED
BY THE FAILURE OF THE GEORGIA COURTS TO AFFORD A FAIR AND RELIABLE
PROCEDURE FOR DETERMINING THE VOLUNTARINESS OF HIS ALLEGED COERCED
CONFESSION IN DISREGARD OF THE PRINCIPLE OF JACKSON V. DENNO, 378 U.S.
368. 

"3.  WHETHER PETITIONER'S FOURTEENTH AMENDMENT RIGHT TO COUNSEL AS
DECLARED IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, WAS VIOLATED BY THE USE
OF HIS CONFESSION OBTAINED DURING POLICE INTERROGATION IN THE ABSENCE
OF COUNSEL, OR WHETHER PETITIONER'S RIGHT TO COUNSEL WAS EFFECTIVELY
WAIVED. 

"4.  IS A CONVICTION CONSTITUTIONAL WHERE: 

"(A)  LOCAL PRACTICE PURSUANT TO STATE STATUTE REQUIRES RACIALLY
SEGREGATED TAX BOOKS AND COUNTY JURORS ARE SELECTED FROM SUCH BOOKS: 

"(B)  THE NUMBER OF NEGROES CHOSEN IS ONLY 5% OF THE JURORS BUT THEY
COMPRISE ABOUT 20% OF THE TAXPAYERS; AND: 

"(C)  A NEGRO CRIMINAL DEFENDANT'S OFFER TO PROVE A PRACTICE OF
ARBITRARY AND SYSTEMATIC NEGRO INCLUSION OR EXCLUSION BASED ON JURY
LISTS OF THE PRIOR TEN YEARS IS DISALLOWED? 

"5.  WHERE A NEGRO DEFENDANT SENTENCED TO DEATH IN GEORGIA FOR THE
RAPE OF A WHITE WOMAN OFFERS TO PROVE THAT NINETEEN TIMES AS MANY
NEGROES AS WHITES HAVE BEEN EXECUTED FOR RAPE IN GEORGIA IN AN EFFORT
TO SHOW THAT RACIAL DISCRIMINATION VIOLATING THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT PRODUCED SUCH A RESULT, MAY THIS
OFFER OF PROOF BE DISALLOWED?" 

FN2 THIS DISPOSITION IS IN KEEPING WITH THE TEACHING OF JACKSON,
SUPRA, THAT "A DETERMINATION OF ...  VOLUNTARINESS" SHOULD OCCUR
INITIALLY "IN THE STATE COURTS IN ACCORDANCE WITH VALID STATE
PROCEDURES  ...  BEFORE THIS COURT CONSIDERS THE CASE ON DIRECT REVIEW
OR A PETITION FOR HABEAS CORPUS IS FILED IN A FEDERAL DISTRICT COURT." 
378 U.S., AT 393. 

MR. JUSTICE BLACK DISSENTS FOR THE REASONS STATED IN HIS DISSENT IN
JACKSON V. DENNO, 378 U.S., AT 401. 
..END :




















WHITUS V. GEORGIA 385 U.S. 545 


NO. 650.  ARGUED DECEMBER 7, 1966.  - DECIDED JANUARY 23, 1967.* - NO.
650, 222 GA. 103, 114, 149 S.E.2D 130, REVERSED; NO. 253, 112 GA. APP.
328, 145 S.E.2D 83, DISMISSED. 

*TOGETHER WITH NO. 253, WHITUS ET AL. V. GEORGIA, ON CERTIORARI TO
THE COURT OF APPEALS OF GEORGIA. 


AFTER PETITIONERS, WHO ARE NEGROES, WERE CONVICTED OF MURDER IN THE
GEORGIA COURTS, THEY FILED A WRIT OF HABEAS CORPUS IN THE FEDERAL
COURTS, ATTACKING THE COMPOSITION OF THE GRAND AND PETIT JURIES WHICH
INDICTED AND CONVICTED THEM.  THE DISTRICT COURT DISMISSED THE WRIT AND
THE COURT OF APPEALS AFFIRMED.  THIS COURT VACATED THAT JUDGMENT AND
REMANDED TO THE DISTRICT COURT FOR A HEARING ON THE CLAIM OF
DISCRIMINATION (370 U.S. 728).  ON REMAND THE DISTRICT COURT DISMISSED
THE PETITION ON THE GROUND THAT THE CLAIM HAD BEEN WAIVED, BUT THE
COURT OF APPEALS REVERSED, HOLDING THAT NEGROES HAD BEEN SYSTEMATICALLY
EXCLUDED FROM BOTH GRAND AND PETIT JURIES, SINCE NONE HAD EVER SERVED
ON JURIES WITHIN THE MEMORY OF WITNESSES, ALTHOUGH 45% OF THE
POPULATION OF THE COUNTY WAS NEGRO.  THE SUPERIOR COURT OF MITCHELL
COUNTY THEN DIRECTED THE JURY COMMISSIONERS TO REVISE THE JURY LIST. 
GEORGIA LAW REQUIRES THE COMMISSIONERS TO "SELECT FROM THE BOOKS OF THE
TAX RECEIVER UPRIGHT AND INTELLIGENT CITIZENS TO SERVE AS JURORS."  THE
1964 TAX DIGEST, AND THOSE PRIOR THERETO, WERE REQUIRED BY GEORGIA LAW
TO BE MADE UP FROM SEGREGATED TAX RETURNS AND THE NAMES OF NEGROES WERE
DESIGNATED BY HAVING A "(C)" PLACED OPPOSITE THEIR NAMES.  THE STATE
ADMITS THAT THE REVISED JURY LIST WAS MADE UP BY REFERENCE TO THE OLD
JURY LIST, WHICH HAD BEEN CONDEMNED, AND THE 1964 TAX DIGEST.  THREE
COMMISSIONERS TESTIFIED THAT THEY WERE UNAWARE OF THE LETTER "(C)"
APPEARING AFTER NEGROES' NAMES IN THE 1964 DIGEST, THAT THEY DID NOT
INCLUDE OR EXCLUDE ANYONE ON THE REVISED LIST BECAUSE OF COLOR, THAT
THEY PLACED PERSONS ON THE LIST WHO WERE KNOWN TO THEM, AND THAT THE
REVISED LIST HAD NO DESIGNATION OF RACE ON IT.  WHILE 27.1% OF THE
TAXPAYERS IN THE COUNTY ARE NEGROES, AND 42% OF THE MALES OVER 21 ARE
NEGROES, ONLY 3 OF THE 33 PROSPECTIVE GRAND JURORS WERE NEGROES, OF
WHOM ONE SERVED ON THE 19-MEMBER GRAND JURY, AND ONLY 7 OF THE 90
PERSONS USED TO SELECT A PETIT JURY WERE NEGROES, AND NONE WAS ACCEPTED
FOR THE PETIT JURY.  HELD: 

1.  THE PROOF OFFERED BY PETITIONERS, INCLUDING THE USE BY THE STATE
OF A SYSTEM OF JURY SELECTION WHICH HAD BEEN PREVIOUSLY CONDEMNED,
CONSTITUTED A PRIMA FACIE CASE OF PURPOSEFUL DISCRIMINATION, WHICH
SHIFTED THE BURDEN OF PROOF TO THE STATE.  THE STATE, WHICH SUBMITTED
NO EXPLANATION FOR THE CONTINUED USE OF THE CONDEMNED SYSTEM AND
PROVIDED NO TESTIMONY INDICATING THAT THE 27.1% OF THE NEGROES ON THE
TAX DIGEST WERE NOT FULLY QUALIFIED, FAILED TO MEET THE BURDEN OF
REBUTTING THE PRIMA FACIE CASE.  PP. 550-552. 

2.  PERSONS WHOSE STATE COURT CONVICTIONS ARE SET ASIDE FOR JURY
DISCRIMINATION MAY BE RETRIED BY THE STATE UNDER PROCEDURES WHICH
CONFORM TO CONSTITUTIONAL REQUIREMENTS.  PP. 552-553. 

WHITUS ET AL. V. GEORGIA. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN WE ARE CONFRONTED WITH THE QUESTION OF RACIAL
DISCRIMINATION IN THE SELECTION OF THE GRAND AND PETIT JURIES WHICH
HAVE RESPECTIVELY INDICTED PETITIONERS AND FOUND THEM GUILTY OF THE
OFFENSE OF MURDER.  THE CLAIM IS THAT GEORGIA'S SYSTEM OF JURY
SELECTION RESULTED IN THE SYSTEMATIC EXCLUSION OF NEGROES FROM BOTH THE
GRAND AND PETIT JURIES IN THAT ITS LAW REQUIRED JURY COMMISSIONERS TO
SELECT THE NAMES OF PROSPECTIVE JURORS FROM THE BOOKS OF THE COUNTY TAX
RECEIVER WHICH WERE MAINTAINED ON A RACIALLY SEGREGATED BASIS.  GA.
CODE ANN. SEC 59-106.  THE GRAND JURY QUESTION IS RAISED IN BOTH THESE
CASES AND WE CONSOLIDATED THEM FOR ARGUMENT AND DO LIKEWISE ON
DISPOSITION. 

NO. 253 IS AN INTERLOCUTORY APPEAL FROM A JUDGMENT DENYING
PETITIONERS' CLAIM AS TO THE GRAND JURY WHICH INDICTED THEM.  GEORGIA
LAW AUTHORIZES SUCH AN APPEAL, GA. CODE ANN.  SEC 6-701, AND IT WAS
FIRST PERFECTED TO THE SUPREME COURT OF GEORGIA WHICH TRANSFERRED IT TO
THE GEORGIA COURT OF APPEALS.  THAT COURT AFFIRMED THE DENIAL OF THE
CLAIM OF DISCRIMINATION.  112 GA. APP. 328, 145 S.E.2D 83.  WE GRANTED
CERTIORARI.  384 U.S. 1000 (1966).  IN VIEW OF THE LACK OF FINALITY OF
THE ORDER IN THIS CASE, WE DISMISS THE WRIT IN NO. 253 AS IMPROVIDENTLY
GRANTED AND PROCEED TO DISPOSE OF BOTH THE GRAND AND PETIT JURIES
QUESTIONS IN NO. 650. 

FOLLOWING AFFIRMANCE BY THE GEORGIA COURT OF APPEALS OF THE
INTERLOCUTORY APPEAL, THE TRIAL COURT PROCEEDED TO TRY PETITIONERS'
CASES ON THE MERITS.  AFTER A CHALLENGE TO THE ARRAY OF PETIT JURORS
WAS DENIED, PETITIONERS WERE PUT TO TRIAL AND WERE CONVICTED.  THE
SUPREME COURT OF GEORGIA AFFIRMED.  WHITUS V. STATE, 222 GA. 103, 149
S.E.2D 130; DAVIS V. STATE, 222 GA. 114, 149 S.E.2D 130.  WE GRANTED
CERTIORARI.  POST, P. 813.  WE FIND THAT THE CIRCUMSTANCES HERE,
UNEXPLAINED BY THE STATE, ARE SUFFICIENT TO SUPPORT PETITIONERS' CLAIMS
OF DISCRIMINATION AND REVERSE THE JUDGMENTS. 

                   I. 

THE PETITIONERS HAVE BEEN HERE TWICE BEFORE.  THEY WERE ORIGINALLY
CONVICTED IN 1960 AND THE SUPREME COURT OF GEORGIA AFFIRMED.  DAVIS V.
STATE, 216 GA. 110, 114 S.E.2D 877; WHITUS V. STATE, 216 GA. 284, 116
S.E.2D 205, CERT. DENIED, 365 U.S. 831 (1961).  THEREAFTER A WRIT OF
HABEAS CORPUS WAS FILED IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA IN WHICH, FOR THE FIRST TIME, PETITIONER
WHITUS ATTACKED THE COMPOSITION OF THE GRAND AND PETIT JURIES.  THE
DISTRICT COURT DISMISSED THE WRIT AND THE COURT OF APPEALS AFFIRMED. 
299 F.2D 844.  ON WRIT OF CERTIORARI, WE VACATED THAT JUDGMENT AND
REMANDED THE CASE TO THE DISTRICT COURT FOR A HEARING ON THE CLAIM OF
DISCRIMINATION.  WHITUS V. BALKCOM, 370 U.S. 728 (1962).  ON REMAND,
THE DISTRICT COURT AGAIN DISMISSED THE PETITION ON THE GROUND THAT THE
CLAIM HAD BEEN WAIVED SINCE IT WAS NOT RAISED IN THE GEORGIA COURTS. 
THE COURT OF APPEALS REVERSED, HOLDING THAT NEGROES HAD BEEN
SYSTEMATICALLY EXCLUDED FROM BOTH THE GRAND AND PETIT JURIES.  WHITUS
V. BALKCOM, 333 F.2D 496.  ITS RULING WAS BASED ON A FINDING THAT 45%
OF THE POPULATION OF THE COUNTY WAS NEGRO; YET, NONE HAD EVER SERVED ON
JURIES WITHIN THE MEMORY OF THE WITNESSES. 

                             II. 

AFTER THE COURT OF APPEALS SET ASIDE THE FIRST CONVICTIONS, WHITUS V.
BALKCOM, IBID., THE SUPERIOR COURT OF MITCHELL COUNTY DIRECTED THE JURY
COMMISSIONERS FOR THE COUNTY TO REVISE THE JURY LIST.  GEORGIA LAW
REQUIRES THAT THE SIX COMMISSIONERS APPOINTED BY THE SUPERIOR COURT
"SELECT FROM THE BOOKS OF THE TAX RECEIVER UPRIGHT AND INTELLIGENT
CITIZENS TO SERVE AS JURORS, AND SHALL WRITE THE NAMES OF THE PERSONS
SO SELECTED ON TICKETS."  GA. CODE ANN. SEC 59-106.  THEY ARE ALSO
DIRECTED TO SELECT FROM THIS GROUP A SUFFICIENT NUMBER, NOT EXCEEDING
TWO-FIFTHS OF THE WHOLE NUMBER, OF THE MOST EXPERIENCED, INTELLIGENT,
AND UPRIGHT CITIZENS TO SERVE AS GRAND JURORS, WRITING THEIR NAMES ON
OTHER TICKETS.  THE ENTIRE GROUP, EXCEPTING THOSE SELECTED AS GRAND
JURORS, CONSTITUTES THE BODY OF TRAVERSE JURORS.  THE TICKETS ON WHICH
THE NAMES OF THE TRAVERSE JURORS ARE PLACED ARE DEPOSITED IN JURY BOXES
AND ENTERED ON THE MINUTES OF THE SUPERIOR COURT.  GA. CODE ANN. SECS
59-108, 59-109.  THE VENIREMEN ARE DRAWN FROM THE JURY BOXES EACH TERM
OF COURT AND IT IS FROM THEM THAT THE JURIES ARE SELECTED. 

THE STATE ADMITS THAT PRIOR TO 1965, THE TAX RETURN SHEETS FURNISHED
BY THE STATE REVENUE DEPARTMENT, GA. CODE ANN. SEC 92-6302, WERE WHITE
FOR WHITE TAXPAYERS AND YELLOW FOR NEGRO TAXPAYERS.  THE 1964 TAX
DIGEST, AND ALL DIGESTS PRIOR TO 1964, WERE MADE UP FROM THESE
SEGREGATED TAX RETURNS.  FURTHERMORE, THE JURY LISTS FOR EACH COUNTY
ARE REQUIRED BY LAW TO BE MADE UP FROM THE TAX DIGEST.  GA. CODE ANN.
SEC 59-106.  THE STATE FURTHER ADMITS THAT THE "REVISED" JURY LIST FROM
WHICH BOTH THE GRAND AND PETIT JURIES SERVING IN THESE CASES WERE
SELECTED, HAD BEEN MADE UP BY REFERENCE TO THE OLD JURY LIST, WHICH THE
COURT OF APPEALS HAD CONDEMNED, AND THE 1964 TAX DIGEST, WHICH HAD BEEN
PREPARED FROM THE WHITE AND YELLOW TAX RETURN SHEETS OF THAT YEAR. 
HOWEVER, THE JURY COMMISSIONERS DID NOT USE THE 1964 TAX RETURNS
THEMSELVES, NOR THE 1965 TAX DIGEST WHICH HAD NOT YET BEEN MADE UP.
THE TAX DIGEST APPEARS TO HAVE BEEN IN ONE VOLUME BUT WAS SEGREGATED
INTO TWO SECTIONS - ONE FOR WHITE AND THE OTHER FOR NEGRO TAXPAYERS. 
THE NEGROES WHOSE NAMES WERE INCLUDED IN THE TAX DIGEST WERE DESIGNATED
BY A "(C)" BEING PLACED OPPOSITE THEIR NAMES AS REQUIRED BY GA. CODE
ANN. SEC 92-6307. 

THE THREE JURY COMMISSIONERS WHO APPEARED AS WITNESSES TESTIFIED THAT
THEY WERE NOT AWARE OF THE LETTER (C) APPEARING AFTER THE NAMES OF THE
NEGROES ON THE 1964 TAX DIGEST; THAT THEY NEVER INCLUDED OR EXCLUDED
ANYONE ON THE "REVISED" JURY LIST BECAUSE OF RACE OR COLOR; THAT THEY
PLACED ON THE "REVISED" JURY LIST THOSE PERSONS WHOM THEY KNEW
PERSONALLY FROM THEIR RESPECTIVE COMMUNITIES; THAT THERE WERE AROUND
600 SELECTED; AND THAT THE "REVISED" LIST, WHICH THE COMMISSIONERS
THEMSELVES PREPARED, HAD NO DESIGNATION OF RACE UPON IT.

                    III. 

FOR OVER FOURSCORE YEARS IT HAS BEEN FEDERAL STATUTORY LAW, 18 STAT.
336 (1875), 18 U.S.C.  SEC 243, AND THE LAW OF THIS COURT AS APPLIED TO
THE STATES THROUGH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, THAT A CONVICTION CANNOT STAND IF IT IS BASED ON AN
INDICTMENT OF A GRAND JURY OR THE VERDICT OF A PETIT JURY FROM WHICH
NEGROES WERE EXCLUDED BY REASON OF THEIR RACE.  STRAUDER V. WEST
VIRGINIA, 100 U.S. 303 (1880); SEE ALSO PIERRE V. LOUISIANA, 306 U.S.
354 (1939).  THERE IS NO CONTROVERSY AS TO THE CONSTITUTIONAL PRINCIPLE
- THE QUESTION INVOLVED IS ITS APPLICATION TO THE FACTS DISCLOSED IN
THIS RECORD.  IT IS OUR PROVINCE TO "ANALYZE THE FACTS IN ORDER THAT
THE APPROPRIATE ENFORCEMENT OF THE FEDERAL RIGHT MAY BE ASSURED,"
NORRIS V. ALABAMA, 294 U.S. 587, 590 (1935), AND WHILE THE CONCLUSIONS
REACHED BY THE HIGHEST COURT OF THE STATE "ARE ENTITLED TO GREAT
RESPECT  ...  IT BECOMES OUR SOLEMN DUTY TO MAKE INDEPENDENT INQUIRY
AND DETERMINATION OF THE DISPUTED FACTS  ...  ."  PIERRE V. LOUISIANA,
SUPRA, AT 358.  THE BURDEN IS, OF COURSE, ON THE PETITIONERS TO PROVE
THE EXISTENCE OF PURPOSEFUL DISCRIMINATION, TARRANCE V. FLORIDA, 188
U.S. 519 (1903).  HOWEVER, ONCE A PRIMA FACIE CASE IS MADE OUT THE
BURDEN SHIFTS TO THE PROSECUTION. 

IT IS UNDISPUTED THAT THE "REVISED" JURY LIST WAS MADE UP FROM THE
1964 TAX DIGEST, THE OLD JURY LIST AND THE PERSONAL ACQUAINTANCE OF THE
COMMISSIONERS WITH PERSONS IN THEIR RESPECTIVE COMMUNITIES.  IT IS
ADMITTED THAT THE OLD JURY LIST HAD BEEN CONDEMNED AS ILLEGAL BY THE
COURT OF APPEALS WHEN IT REVERSED PETITIONERS' FIRST CONVICTIONS.  IT
IS CONCEDED THAT 27.1% OF THE TAXPAYERS IN THE COUNTY ARE NEGROES; THAT
THE COUNTY HAD A POPULATION IN 1960 OF 10,206 PEOPLE OVER THE AGE OF 21
YEARS, OF WHOM 4,706 WERE MALE,  (FN1)  WITH 2,004, OR 42.6%, OF THIS
LATTER NUMBER BEING NEGROES; THAT 33 PROSPECTIVE JURORS WERE DRAWN FOR
GRAND JURY SERVICE FOR THE TERM OF COURT DURING WHICH PETITIONERS WERE
INDICTED, THREE BEING NEGROES, OF WHOM ONE ACTUALLY SERVED ON THE GRAND
JURY OF 19 PERSONS; THAT A VENIRE OF 90 PERSONS WAS USED FOR THE
SELECTION OF THE PETIT JURY WHICH TRIED PETITIONERS, OF WHICH NUMBER AT
LEAST SEVEN WERE NEGROES; AND, THAT NO NEGRO WAS ACCEPTED ON THE PETIT
JURY. 

FURTHERMORE, IT IS OBVIOUS THAT THE 1964 TAX DIGEST WAS REQUIRED TO
BE MADE UNDER THE SAME SEGREGATED SYSTEM AS WERE THE PREVIOUS DIGESTS,
AND SUFFERED THE SAME DEFICIENCY.  INDEED, THE STATE EMPLOYED THE SAME
PROCEDURE WHICH IT CONCEDES RESULTED IN DISCRIMINATION IN THE
PETITIONERS' FIRST TRIAL. 

WE BELIEVE THAT THIS PROOF CONSTITUTED A PRIMA FACIE CASE OF
PURPOSEFUL DISCRIMINATION.  WHILE THE COMMISSIONERS TESTIFIED THAT NO
ONE WAS INCLUDED OR REJECTED ON THE JURY LIST BECAUSE OF RACE OR COLOR
THIS HAS BEEN HELD INSUFFICIENT TO OVERCOME THE PRIMA FACIE CASE. 
NORRIS V. ALABAMA, SUPRA, AT 598.  THE STATE ALSO INSISTS THAT THE
REVISION OF THE JURY LIST MADE EVIDENCE OF THE FORMER PRACTICE OF
EXCLUSION IRRELEVANT.  HOWEVER, AS WE HAVE SEEN, THIS REVISION WAS
SUSPECT.  AT THE LEAST IT WAS BASED ON THE OLD JURY ROLL WHICH HAD BEEN
SPECIFICALLY CONDEMNED BY THE COURT OF APPEALS AND THE 1964 TAX DIGEST
WHICH WAS SUSPECT BECAUSE OF THE SYSTEM BY WHICH IT WAS REQUIRED TO BE
PREPARED.  THE COURT OF APPEALS CONDEMNED THIS SAME SYSTEM IN REVERSING
THE ORIGINAL CONVICTIONS. 

WE BELIEVE THAT THE CIRCUMSTANCES HERE ARE AKIN TO THOSE CONDEMNED IN
AVERY V. GEORGIA, 345 U.S. 559 (1953).  THERE THE NAMES OF THE
PROSPECTIVE NEGRO JURORS WERE PLACED IN THE JURY BOX ON YELLOW COLORED
TICKETS.  HERE THE COMMISSIONERS USED THE OLD JURY ROLL WHICH HAD BEEN
CONDEMNED BY THE COURT OF APPEALS AND THE 1964 TAX DIGEST WHICH WAS
REQUIRED BY LAW TO BE, AND WAS, MAINTAINED ON A RACIALLY SEGREGATED
BASIS.  MOREOVER, IT WAS PREPARED FROM THE TAX RETURNS OF NEGROES
WHICH, AT THE TIME, WERE REQUIRED TO BE FILED ON YELLOW SHEETS OF PAPER
WHILE THE RETURNS OF WHITE PERSONS WERE ON WHITE SHEETS.  IT IS THIS
OLD "SYSTEM OF SELECTION" CONDEMNED BY THE COURT OF APPEALS "AND THE
RESULTING DANGER OF ABUSE WHICH WAS STRUCK DOWN IN AVERY  ...  ." 
WILLIAMS V. GEORGIA, 349 U.S. 375, 382 (1955).  NOR DOES THE FACT THAT
THE COMMISSIONERS SELECTED PROSPECTIVE JURORS ON THE BASIS OF PERSONAL
ACQUAINTANCE CORRECT THE EVIL.  SEE CASSELL V. TEXAS, 339 U.S. 282, 289
(1950). 

UNDER SUCH A SYSTEM THE OPPORTUNITY FOR DISCRIMINATION WAS PRESENT
AND WE CANNOT SAY ON THIS RECORD THAT IT WAS NOT RESORTED TO BY THE
COMMISSIONERS.  INDEED, THE DISPARITY BETWEEN THE PERCENTAGE OF NEGROES
ON THE TAX DIGEST (27.1%) AND THAT OF THE GRAND JURY VENIRE (9.1%) AND
THE PETIT JURY VENIRE (7.8%) STRONGLY POINTS TO THIS CONCLUSION.  (FN2)
ALTHOUGH THE SYSTEM OF SELECTION USED HERE HAD BEEN SPECIFICALLY
CONDEMNED BY THE COURT OF APPEALS, THE STATE OFFERED NO TESTIMONY AS TO
WHY IT WAS CONTINUED ON RETRIAL.  THE STATE OFFERED NO EXPLANATION FOR
THE DISPARITY BETWEEN THE PERCENTAGE OF NEGROES ON THE TAX DIGEST AND
THOSE ON THE VENIRES, ALTHOUGH THE DIGEST MUST HAVE INCLUDED THE NAMES
OF LARGE NUMBERS OF "UPRIGHT AND INTELLIGENT" NEGROES AS THE STATUTORY
QUALIFICATION REQUIRED.  IN ANY EVENT THE STATE FAILED TO OFFER ANY
TESTIMONY INDICATING THAT THE 27.1% OF NEGROES ON THE TAX DIGEST WERE
NOT FULLY QUALIFIED.  THE STATE, THEREFORE, FAILED TO MEET THE BURDEN
OF REBUTTING THE PETITIONERS' PRIMA FACIE CASE. 

IT IS CONTENDED BY PETITIONERS THAT IN THE EVENT OF A REVERSAL OF THE
DECISION BELOW THEY SHOULD BE SET FREE RATHER THAN RETRIED.  THIS
CONTENTION ARISES FROM LANGUAGE USED BY THE COURT OF APPEALS IN
REVERSING THE ORIGINAL CONVICTIONS.  THE COURT EXPRESSED ITS "PRESENT
OPINION THAT A PERIOD OF EIGHT MONTHS  ...  WILL BE SUFFICIENT TO
AFFORD THE STATE AN OPPORTUNITY TO TAKE THE NECESSARY STEPS TO REINDICT
AND RETRY THE PETITIONERS."  WHITUS V. BALKCOM, 333 F.2D, AT 510.  THE
THEORY IS THAT A CONSTITUTIONAL PROCEDURE WAS NOT PROVIDED WITHIN THE
EIGHT-MONTH PERIOD AND THAT A REMAND FOR A NEW TRIAL WOULD BE BEYOND
THAT PERIOD.  WE ARE NOT PERSUADED BY THIS LOGIC.  THE PROPER
DISPOSITION WHERE A STATE COURT CONVICTION IS SET ASIDE ON THE GROUND
OF JURY DISCRIMINATION IS STATED IN HILL V. TEXAS, 316 U.S. 400, 406
(1942): 

"A PRISONER WHOSE CONVICTION IS REVERSED BY THIS COURT NEED NOT GO
FREE IF HE IS IN FACT GUILTY, FOR TEXAS MAY INDICT AND TRY HIM AGAIN BY
THE PROCEDURE WHICH CONFORMS TO CONSTITUTIONAL REQUIREMENTS." 

SEE ALSO PATTON V. MISSISSIPPI, 332 U.S. 463, 469 (1947); EUBANKS V.
LOUISIANA, 356 U.S. 584, 589 (1958). 

THE JUDGMENTS ARE, THEREFORE, REVERSED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.   IT IS SO ORDERED. 

FN1  WOMEN, WHILE QUALIFIED TO SERVE, ARE NOT COMPELLED TO SERVE AND
MAY BE EXCUSED UPON REQUEST.  GA. CODE ANN. SEC 59-124.    FN2  WHILE
UNNECESSARY TO OUR DISPOSITION OF THE INSTANT CASE, IT IS INTERESTING
TO NOTE THE "PROBABILITY" INVOLVED IN THE SITUATION BEFORE THE COURT. 

THE RECORD DOES NOT INDICATE HOW MANY NEGROES WERE ACTUALLY ON THE
"REVISED" JURY LIST OF APPROXIMATELY 600 NAMES.  ONE JURY COMMISSIONER,
HOWEVER, SAID HIS BEST ESTIMATE WAS 25% TO 30%, WHICH IS IN CLOSE
PROXIMITY TO THE 27.1% WHO WERE ADMITTEDLY ON THE TAX DIGEST FOR 1964. 
ASSUMING THAT 27% OF THE LIST WAS MADE UP OF THE NAMES OF QUALIFIED
NEGROES, THE MATHEMATICAL PROBABILITY OF HAVING SEVEN NEGROES ON A
VENIRE OF 90 IS .000006.  SEE FINKELSTEIN, THE APPLICATION OF
STATISTICAL DECISION THEORY TO THE JURY DISCRIMINATION CASES, 80 HARV.
L. REV. 338 (1966). 
..END :






SPENCER V. TEXAS 385 U.S. 554 


NO. 68.  ARGUED OCTOBER 17-18, 1966.  - DECIDED JANUARY 23, 1967.* - NO.
68, APPEAL DISMISSED AND CERTIORARI GRANTED; 389 S.W.2D 304, AFFIRMED;
NO. 69, 387 S.W.2D 411, NO. 70, 343 F.2D 723, AFFIRMED. 

*TOGETHER WITH NO. 69, BELL V. TEXAS, ON CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF TEXAS, ARGUED OCTOBER 17, 1966, AND NO. 70, REED V.
BETO, CORRECTIONS DIRECTOR, ON CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT, ARGUED OCTOBER 18, 1966. 


PETITIONERS, WHO WERE CONVICTED OF FELONIES IN TEXAS COURTS, CHALLENGE
THE THEN-EXISTING PROCEDURE, UNDER TEXAS' RECIDIVIST OR HABITUAL
CRIMINAL STATUTES, WHEREBY, THROUGH ALLEGATIONS IN THE INDICTMENT AND
THE INTRODUCTION OF PROOF CONCERNING A DEFENDANT'S PAST CONVICTIONS,
THE JURY TRYING THE PENDING CRIMINAL CHARGE WAS FULLY INFORMED OF SUCH
PAST CONVICTIONS FOR SENTENCING PURPOSES, BUT WAS ALSO CHARGED BY THE
COURT THAT SUCH MATTERS WERE NOT TO BE TAKEN INTO ACCOUNT IN ASSESSING
THE DEFENDANT'S GUILT OR INNOCENCE UNDER THE CURRENT INDICTMENT. 
PETITIONERS CLAIM THAT THIS PROCEDURE VIOLATES THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  HELD:  TEXAS' USE OF PRIOR CONVICTIONS IN
THE PETITIONERS' CURRENT CRIMINAL TRIALS DID NOT OFFEND THE PROVISIONS
OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 559-569. 

(A)  THE RECIDIVIST STATUTES ARE NOT UNCONSTITUTIONAL.  PP. 559-560. 

(B)  THE STATES HAVE WIDE LEEWAY IN DIVIDING RESPONSIBILITY BETWEEN
JUDGE AND JURY IN CRIMINAL CASES, AND IT IS NOT UNCONSTITUTIONAL FOR
THE JURY TO ASSESS THE PUNISHMENT IN A CRIMINAL CASE, OR TO MAKE
FINDINGS AS TO A PRIOR CONVICTION EVEN THOUGH ENHANCED PUNISHMENT IS
LEFT TO BE IMPOSED BY THE JUDGE.  P. 560. 

(C)  AS IN OTHER INSTANCES WHERE EVIDENCE OF PRIOR CONVICTIONS HAS
TRADITIONALLY BEEN ADMITTED TO SERVE A SPECIFIC PURPOSE, THE
POSSIBILITY OF PREJUDICE HERE IS OUTWEIGHED BY BY THE VALIDITY OF THE
STATE'S PURPOSE IN PERMITTING INTRODUCTION OF THE EVIDENCE.  PP. 560
561. 

(D) THE DEFENDANTS' INTERESTS WERE PROTECTED BY LIMITING
INSTRUCTIONS, AND BY THE DISCRETION OF THE TRIAL JUDGE TO LIMIT OR
FORBID ADMISSION OF PARTICULARLY PREJUDICIAL EVIDENCE.  P. 561. 

(E)  ENFORCEMENT OF RECIDIVIST STATUTES IN A ONE-STAGE TRIAL SERVES A
VALID STATE PURPOSE.  P. 563. 

(F)  NEITHER THE SPECIFIC PROVISIONS OF THE CONSTITUTION NOR CASES
DECIDED UNDER THE DUE PROCESS CLAUSE ESTABLISH THIS COURT AS A RULE
MAKING ORGAN FOR THE PROMULGATION OF STATE RULES OF CRIMINAL
PROCEDURE.  JACKSON V. DENNO, 378 U.S. 368, DISTINGUISHED.  PP. 564
565. 

(G)  THE STATES HAVE POWER TO PROMULGATE THEIR OWN RULES OF EVIDENCE
TO TRY THEIR STATE-CREATED CRIMES IN THEIR OWN COURTS, AS LONG AS THEIR
RULES ARE NOT PROHIBITED BY THE FEDERAL CONSTITUTION, WHICH THESE RULES
ARE NOT.  PP. 568-569. 

SPENCER V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

TEXAS, REFLECTING WIDELY ESTABLISHED POLICIES IN THE CRIMINAL LAW OF
THIS COUNTRY, HAS LONG HAD ON ITS BOOKS SO-CALLED RECIDIVIST OR
HABITUAL-CRIMINAL STATUTES.  THEIR EFFECT IS TO ENHANCE THE PUNISHMENT
OF THOSE FOUND GUILTY OF CRIME WHO ARE ALSO SHOWN TO HAVE BEEN
CONVICTED OF OTHER CRIMES IN THE PAST.  THE THREE CASES AT HAND
CHALLENGE THE PROCEDURES EMPLOYED BY TEXAS IN THE ENFORCEMENT OF SUCH
STATUTES.  (FN1) 

UNTIL RECENTLY, AND AT THE TIME OF THE CONVICTIONS BEFORE US, THE
ESSENCE OF THOSE PROCEDURES WAS THAT, THROUGH ALLEGATIONS IN THE
INDICTMENT AND THE INTRODUCTION OF PROOF RESPECTING A DEFENDANT'S PAST
CONVICTIONS, THE JURY TRYING THE PENDING CRIMINAL CHARGE WAS FULLY
INFORMED OF SUCH PREVIOUS DERELICTIONS, BUT WAS ALSO CHARGED BY THE
COURT THAT SUCH MATTERS WERE NOT TO BE TAKEN INTO ACCOUNT IN ASSESSING
THE DEFENDANT'S GUILT OR INNOCENCE UNDER THE CURRENT INDICTMENT. 
(FN2) 

THE FACTS IN THE CASES NOW HERE ARE THESE.  IN SPENCER (NO. 68), THE
PETITIONER  (FN3) WAS INDICTED FOR MURDER, WITH MALICE, OF HIS COMMON
LAW WIFE.  THE INDICTMENT ALLEGED THAT THE DEFENDANT HAD PREVIOUSLY
BEEN CONVICTED OF MURDER WITH MALICE, A FACTOR WHICH IF PROVED WOULD
ENTITLE THE JURY TO SENTENCE THE DEFENDANT TO DEATH OR TO PRISON FOR
NOT LESS THAN LIFE UNDER TEXAS PEN.  CODE ART. 64, N. 1, SUPRA, WHEREAS
IF THE PRIOR CONVICTION WAS NOT PROVED THE JURY COULD FIX THE PENALTY
AT DEATH OR A PRISON TERM OF NOT LESS THAN TWO YEARS, SEE TEXAS PEN. 
CODE ART. 1257.  SPENCER MADE TIMELY OBJECTIONS TO THE READING TO THE
JURY OF THAT PORTION OF THE INDICTMENT, AND OBJECTED AS WELL TO THE
INTRODUCTION OF EVIDENCE TO SHOW HIS PRIOR CONVICTION.  THE JURY WAS
CHARGED THAT IF IT FOUND THAT SPENCER HAD MALICIOUSLY KILLED THE
VICTIM, AND THAT HE HAD PREVIOUSLY BEEN CONVICTED OF MURDER WITH
MALICE, THE JURY WAS TO "ASSESS HIS PUNISHMENT AT DEATH OR CONFINEMENT
IN THE PENITENTIARY FOR LIFE."  THE JURY WAS INSTRUCTED AS WELL THAT IT
SHOULD NOT CONSIDER THE PRIOR CONVICTION AS ANY EVIDENCE OF THE
DEFENDANT'S GUILT ON THE CHARGE ON WHICH HE WAS BEING TRIED.  SPENCER
WAS FOUND GUILTY AND SENTENCED TO DEATH. 

IN BELL (NO. 69), THE PETITIONER WAS INDICTED FOR ROBBERY, AND THE
INDICTMENT ALLEGED THAT HE HAD BEEN PREVIOUSLY CONVICTED OF BANK
ROBBERY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF TEXAS.  BELL MOVED TO QUASH THE INDICTMENT ON THE GROUND, SIMILAR TO
THAT IN SPENCER, THAT THE ALLEGATION AND READING TO THE JURY OF A PRIOR
OFFENSE WAS PREJUDICIAL AND WOULD DEPRIVE HIM OF A FAIR TRIAL.  SIMILAR
OBJECTIONS WERE MADE TO THE OFFER OF DOCUMENTARY EVIDENCE TO PROVE THE
PRIOR CONVICTIONS.  THE COURT'S CHARGE TO THE JURY STATED THAT THE
PRIOR CONVICTION SHOULD NOT BE CONSIDERED IN PASSING UPON THE ISSUE OF
GUILT OR INNOCENCE ON THE PRIMARY CHARGE.  THE SENTENCING PROCEDURE IN
THIS NON-CAPITAL CASE WAS SOMEWHAT DIFFERENT FROM THAT IN SPENCER.  THE
JURY WAS INSTRUCTED THAT IF IT FOUND THE DEFENDANT GUILTY ONLY OF THE
PRESENT ROBBERY CHARGE, IT COULD FIX HIS SENTENCE AT NOT LESS THAN FIVE
YEARS NOR MORE THAN LIFE.  SEE TEXAS PEN.  CODE ART. 1408.  BUT IF IT
FOUND THAT BELL HAD ALSO BEEN PREVIOUSLY CONVICTED AS ALLEGED IN THE
INDICTMENT, IT SHOULD BRING IN A VERDICT OF GUILTY OF ROBBERY BY
ASSAULT AND A FURTHER FINDING THAT THE ALLEGATIONS "CHARGING A FINAL
CONVICTION FOR THE OFFENSE OF BANK ROBBERY ARE TRUE."  THE JURY SO
FOUND, AND THE JUDGE FIXED PUNISHMENT, SET BY LAW FOR SUCH A PRIOR
OFFENDER, AT LIFE IMPRISONMENT IN THE PENITENTIARY.  SEE TEXAS PEN. 
CODE ART. 62, NOTE 1, SUPRA. 

THE REED CASE (NO. 70),  (FN4) INVOLVING A THIRD-OFFENDER PROSECUTION
FOR BURGLARY, SEE TEXAS PEN.  CODE ART. 63, N. 1, SUPRA, ENTAILED THE
SAME PRACTICE AS FOLLOWED IN BELL. 

THE COMMON AND SOLE CONSTITUTIONAL CLAIM MADE IN THESE CASES IS THAT
TEXAS' USE OF PRIOR CONVICTIONS IN THE CURRENT CRIMINAL TRIAL OF EACH
PETITIONER WAS SO EGREGIOUSLY UNFAIR UPON THE ISSUE OF GUILT OR
INNOCENCE AS TO OFFEND THE PROVISIONS OF THE FOURTEENTH AMENDMENT THAT
NO STATE SHALL "DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY,
WITHOUT DUE PROCESS OF LAW  ...  ."  WE TOOK THESE CASES FOR REVIEW,
382 U.S. 1022, 1023, 1025, BECAUSE THE COURTS OF APPEALS HAVE DIVIDED
ON THE ISSUE.  (FN5)  FOR REASONS NOW TO FOLLOW WE AFFIRM THE JUDGMENTS
BELOW. 

THE ROAD TO DECISION, IT SEEMS TO US, IS CLEARLY INDICATED BOTH BY
WHAT PETITIONERS IN THESE CASES DO NOT CONTEND AND BY THE COURSE OF THE
AUTHORITIES IN CLOSELY RELATED FIELDS.  NO CLAIM IS MADE HERE THAT
RECIDIVIST STATUTES ARE THEMSELVES UNCONSTITUTIONAL, NOR COULD THERE BE
UNDER OUR CASES.  SUCH STATUTES AND OTHER ENHANCED-SENTENCE LAWS, AND
PROCEDURES DESIGNED TO IMPLEMENT THEIR UNDERLYING POLICIES, HAVE BEEN
ENACTED IN ALL THE STATES,  (FN6) AND BY THE FEDERAL GOVERNMENT AS
WELL.  SEE, E.G., 18 U.S.C. SEC 2114; FED.  RULE CRIM. PROC. 32(C)(2);
D.C. CODE SEC. 22-104 (1961).   SUCH STATUTES, THOUGH NOT IN THE
PRECISE PROCEDURAL CIRCUMSTANCES HERE INVOLVED, HAVE BEEN SUSTAINED IN
THIS COURT ON SEVERAL OCCASIONS AGAINST CONTENTIONS THAT THEY VIOLATE
CONSTITUTIONAL STRICTURES DEALING WITH DOUBLE JEOPARDY, EX POST FACTO
LAWS, CRUEL AND UNUSUAL PUNISHMENT, DUE PROCESS, EQUAL PROTECTION, AND
PRIVILEGES AND IMMUNITIES.  MOORE V. MISSOURI, 159 U.S. 673; MCDONALD
V.  MASSACHUSETTS, 180 U.S. 311; GRAHAM V. WEST VIRGINIA, 224 U.S. 616;
GRYGER V. BURKE, 334 U.S. 728; OYLER V. BOLES, 368 U.S. 448. 

NOR IS IT CONTENDED THAT IT IS UNCONSTITUTIONAL FOR THE JURY TO
ASSESS THE PUNISHMENT TO BE METED OUT TO A DEFENDANT IN A CAPITAL OR
OTHER CRIMINAL CASE, OR TO MAKE FINDINGS AS TO WHETHER THERE WAS OR WAS
NOT A PRIOR CONVICTION EVEN THOUGH ENHANCED PUNISHMENT IS LEFT TO BE
IMPOSED BY THE JUDGE.  THE STATES HAVE ALWAYS BEEN GIVEN WIDE LEEWAY IN
DIVIDING RESPONSIBILITY BETWEEN JUDGE AND JURY IN CRIMINAL CASES. 
HALLINGER V. DAVIS, 146 U.S. 314; MAXWELL V. DOW, 176 U.S. 581; CF.
CHANDLER V. FRETAG, 348 U.S. 3; GIACCIO V. PENNSYLVANIA, 382 U.S. 399,
405, N. 8. 

PETITIONERS DO NOT EVEN APPEAR TO BE ARGUING THAT THE CONSTITUTION IS
INFRINGED IF A JURY IS TOLD OF A DEFENDANT'S PRIOR CRIMES.  THE RULES
CONCERNING EVIDENCE OF PRIOR OFFENSES ARE COMPLEX, AND VARY FROM
JURISDICTION TO JURISDICTION, BUT THEY CAN BE SUMMARIZED BROADLY. 
BECAUSE SUCH EVIDENCE IS GENERALLY RECOGNIZED TO HAVE POTENTIALITY FOR
PREJUDICE, IT IS USUALLY EXCLUDED EXCEPT WHEN IT IS PARTICULARLY
PROBATIVE IN SHOWING SUCH THINGS AS INTENT, NYE & NISSEN V. UNITED
STATES, 336 U.S. 613, ELLISOR V. STATE, 162 TEX. CR. R. 117, 282 S.W.2D
393; AN ELEMENT IN THE CRIME, DOYLE V. STATE, 59 TEX. CR. R. 39, 126
S.W. 1131; IDENTITY, CHAVIRA V. STATE, 167 TEX. CR. R. 197, 319 S.W.2D
115; MALICE, MOSS V. STATE, 364 S.W.2D 389; MOTIVE, MOSES V. STATE, 168
TEX. CR. R. 409, 328 S.W.2D 885; A SYSTEM OF CRIMINAL ACTIVITY, HALEY
V. STATE, 87 TEX. CR. R. 519, 223 S.W. 202; OR WHEN THE DEFENDANT HAS
RAISED THE ISSUE OF HIS CHARACTER, MICHELSON V. UNITED STATES, 335 U.S.
469, PERKINS V. STATE, 152 TEX. CR. R. 321, 213 S.W.2D 681; OR WHEN THE
DEFENDANT HAS TESTIFIED AND THE STATE SEEKS TO IMPEACH HIS CREDIBILITY,
GIACONE V. STATE, 124 TEX. CR. R. 141, 62 S.W.2D 986.  (FN7) 

UNDER TEXAS LAW THE PRIOR CONVICTIONS OF THE DEFENDANTS IN THE THREE
CASES BEFORE THE COURT TODAY MIGHT HAVE BEEN ADMISSIBLE FOR ANY ONE OR
MORE OF THESE UNIVERSALLY ACCEPTED REASONS.  IN ALL THESE SITUATIONS,
AS UNDER THE RECIDIVIST STATUTES, THE JURY LEARNS OF PRIOR CRIMES
COMMITTED BY THE DEFENDANT, BUT THE CONCEDED POSSIBILITY OF PREJUDICE
IS BELIEVED TO BE OUTWEIGHED BY THE VALIDITY OF THE STATE'S PURPOSE IN
PERMITTING INTRODUCTION OF THE EVIDENCE.  THE DEFENDANTS' INTERESTS ARE
PROTECTED BY LIMITING INSTRUCTIONS, SEE GIACONE V. STATE, SUPRA, AND BY
THE DISCRETION RESIDING WITH THE TRIAL JUDGE TO LIMIT OR FORBID THE
ADMISSION OF PARTICULARLY PREJUDICIAL EVIDENCE EVEN THOUGH ADMISSIBLE
UNDER AN ACCEPTED RULE OF EVIDENCE.  SEE SPEARS V. STATE, 153 TEX. CR.
R. 14, 216 S.W.2D 812; 1 WIGMORE, EVIDENCE SEC. 29A (3D ED. 1940);
UNIFORM RULE OF EVIDENCE 45; MODEL CODE OF EVIDENCE, RULE 303. 

THIS GENERAL SURVEY SUFFICIENTLY INDICATES THAT THE LAW OF EVIDENCE,
WHICH HAS BEEN CHIEFLY DEVELOPED BY THE STATES, HAS EVOLVED A SET OF
RULES DESIGNED TO RECONCILE THE POSSIBILITY THAT THIS TYPE OF
INFORMATION WILL HAVE SOME PREJUDICIAL EFFECT WITH THE ADMITTED
USEFULNESS IT HAS AS A FACTOR TO BE CONSIDERED BY THE JURY FOR ANY ONE
OF A LARGE NUMBER OF VALID PURPOSES.  THE EVIDENCE ITSELF IS USUALLY,
AND IN RECIDIVIST CASES ALMOST ALWAYS, OF A DOCUMENTARY KIND, AND IN
THE CASES BEFORE US THERE IS NO CLAIM THAT ITS PRESENTATION WAS IN ANY
WAY INFLAMMATORY.  COMPARE MARSHALL V. UNITED STATES, 360 U.S. 310.  TO
SAY THE UNITED STATES CONSTITUTION IS INFRINGED SIMPLY BECAUSE THIS
TYPE OF EVIDENCE MAY BE PREJUDICIAL AND LIMITING INSTRUCTIONS
INADEQUATE TO VITIATE PREJUDICIAL EFFECTS, WOULD MAKE INROADS INTO THIS
ENTIRE COMPLEX CODE OF STATE CRIMINAL EVIDENTIARY LAW, AND WOULD
THREATEN OTHER LARGE AREAS OF TRIAL JURISPRUDENCE.  FOR EXAMPLE, ALL
JOINT TRIALS, WHETHER OF SEVERAL CODEFENDANTS OR OF ONE DEFENDANT
CHARGED WITH MULTIPLE OFFENSES, FURNISH INHERENT OPPORTUNITIES FOR
UNFAIRNESS WHEN EVIDENCE SUBMITTED AS TO ONE CRIME (ON WHICH THERE MAY
BE AN ACQUITTAL) MAY INFLUENCE THE JURY AS TO A TOTALLY DIFFERENT
CHARGE.  SEE DELLI PAOLI V. UNITED STATES, 352 U.S. 232; CF. OPPER V.
UNITED STATES, 348 U.S. 84; KRULEWITCH V. UNITED STATES, 336 U.S. 440. 
THIS TYPE OF PREJUDICIAL EFFECT IS ACKNOWLEDGED TO INHERE IN CRIMINAL
PRACTICE, BUT IT IS JUSTIFIED ON THE GROUNDS THAT (1) THE JURY IS
EXPECTED TO FOLLOW INSTRUCTIONS IN LIMITING THIS EVIDENCE TO ITS PROPER
FUNCTION, AND (2) THE CONVENIENCE OF TRYING DIFFERENT CRIMES AGAINST
THE SAME PERSON, AND CONNECTED CRIMES AGAINST DIFFERENT DEFENDANTS, IN
THE SAME TRIAL IS A VALID GOVERNMENTAL INTEREST. 

SUCH AN APPROACH WAS IN FACT TAKEN BY THE COURT IN MICHELSON V.
UNITED STATES, 335 U.S. 469.  THERE, IN A FEDERAL PROSECUTION, THE
GOVERNMENT WAS PERMITTED TO CROSS-EXAMINE DEFENSE WITNESSES AS TO THE
DEFENDANT'S CHARACTER AND TO QUESTION THEM ABOUT A PRIOR CONVICTION. 
THE COURT, RECOGNIZING THE PREJUDICIAL EFFECT OF THIS EVIDENCE, NOTED
THAT "LIMITING INSTRUCTIONS ON THIS SUBJECT ARE NO MORE DIFFICULT TO
COMPREHEND OR APPLY THAN THOSE UPON VARIOUS OTHER SUBJECTS," ID., AT
485, AND HELD THAT THIS COURT WAS NOT THE BEST FORUM FOR DEVELOPING
RULES OF EVIDENCE, AND WOULD, THEREFORE, NOT PROSCRIBE THE LONG
STANDING PRACTICE AT ISSUE.  A FORTIORI, THIS REASONING APPLIES IN THE
CASES BEFORE US TODAY WHICH ARISE NOT UNDER WHAT HAS BEEN TERMED THE
SUPERVISORY POWER OF THIS COURT OVER PROCEEDINGS IN THE LOWER FEDERAL
COURTS, SEE CHEFF V. SCHNACKENBERG, 384 U.S. 373, BUT IN THE FORM OF A
CONSTITUTIONAL CLAIM THAT WOULD REQUIRE US TO FASHION RULES OF
PROCEDURE AND EVIDENCE IN STATE COURTS.  IT IS NOTEWORTHY THAT NOWHERE
IN MICHELSON DID THE COURT OR DISSENTING OPINIONS APPROACH THE ISSUE IN
CONSTITUTIONAL TERMS. 

IT IS CONTENDED NONETHELESS THAT IN THIS INSTANCE THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES THE EXCLUSION OF
PREJUDICIAL EVIDENCE OF PRIOR CONVICTIONS EVEN THOUGH LIMITING
INSTRUCTIONS ARE GIVEN AND EVEN THOUGH A VALID STATE PURPOSE -
ENFORCEMENT OF THE HABITUAL-OFFENDER STATUTE - IS SERVED.  WE RECOGNIZE
THAT THE USE OF PRIOR-CRIME EVIDENCE IN A ONE-STAGE RECIDIVIST TRIAL
MAY BE THOUGHT TO REPRESENT A LESS COGENT STATE INTEREST THAN DOES ITS
USE FOR OTHER PURPOSES, IN THAT OTHER PROCEDURES FOR APPLYING
ENHANCEMENT-OF-SENTENCE STATUTES MAY BE AVAILABLE TO THE STATE THAT ARE
NOT SUITED IN THE OTHER SITUATIONS IN WHICH SUCH EVIDENCE IS
INTRODUCED.  WE DO NOT THINK THAT THIS DISTINCTION SHOULD LEAD TO A
DIFFERENT CONSTITUTIONAL RESULT. 

CASES IN THIS COURT HAVE LONG PROCEEDED ON THE PREMISE THAT THE DUE
PROCESS CLAUSE GUARANTEES THE FUNDAMENTAL ELEMENTS OF FAIRNESS IN A
CRIMINAL TRIAL.  SEE, E.G., TUMEY V. OHIO, 273 U.S. 510; BETTS V.
BRADY, 316 U.S. 455; CF. GIDEON V. WAINWRIGHT, 372 U.S. 335; SEE ESTES
V. TEXAS, 381 U.S. 532; SHEPPARD V. MAXWELL, 384 U.S. 333; CF. GRIFFIN
V. ILLINOIS, 351 U.S. 12.  BUT IT HAS NEVER BEEN THOUGHT THAT SUCH
CASES ESTABLISH THIS COURT AS A RULE-MAKING ORGAN FOR THE PROMULGATION
OF STATE RULES OF CRIMINAL PROCEDURE.  AND NONE OF THE SPECIFIC
PROVISIONS OF THE CONSTITUTION ORDAINS THIS COURT WITH SUCH AUTHORITY. 
IN THE FACE OF THE LEGITIMATE STATE PURPOSE AND THE LONG-STANDING AND
WIDESPREAD USE THAT ATTEND THE PROCEDURE UNDER ATTACK HERE, WE FIND IT
IMPOSSIBLE TO SAY THAT BECAUSE OF THE POSSIBILITY OF SOME COLLATERAL
PREJUDICE THE TEXAS PROCEDURE IS RENDERED UNCONSTITUTIONAL UNDER THE
DUE PROCESS CLAUSE AS IT HAS BEEN INTERPRETED AND APPLIED IN OUR PAST
CASES.  AS MR. JUSTICE CARDOZO HAD OCCASION TO REMARK, A STATE RULE OF
LAW "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 OR PROTECTION TO THE PRISONER AT BAR."  SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 105.  SEE ALSO BUCHALTER V. NEW YORK, 319
U.S. 427.    PETITIONERS' RELIANCE ON JACKSON V. DENNO, 378 U.S. 368,
IS MISPLACED.  THERE THE COURT HELD UNCONSTITUTIONAL THE NEW YORK
PROCEDURE LEAVING TO THE TRIAL JURY ALONE THE ISSUE OF THE
VOLUNTARINESS OF A CHALLENGED CONFESSION, AN AREA OF LAW THAT HAS BEEN
CHARACTERIZED BY THE DEVELOPMENT OF PARTICULARLY STIFF CONSTITUTIONAL
RULES.  SEE ROGERS V. RICHMOND, 365 U.S. 534; MIRANDA V. ARIZONA, 384
U.S. 436.  THE COURT HELD THAT A JUDICIAL RULING WAS FIRST REQUIRED TO
DETERMINE WHETHER AS A MATTER OF LAW - FEDERAL CONSTITUTIONAL LAW - THE
CONFESSION COULD BE DEEMED VOLUNTARY.  THIS REQUIREMENT OF A THRESHOLD
HEARING BEFORE A JUDGE ON THE FEDERAL QUESTION OF VOLUNTARINESS LENDS
NO SOLID SUPPORT TO THE ARGUMENT MADE HERE - THAT A TWO-STAGE JURY
TRIAL IS REQUIRED WHENEVER A STATE SEEKS TO INVOKE AN HABITUAL-OFFENDER
STATUTE.  IT IS TRUE THAT THE COURT IN JACKSON SUPPORTED ITS HOLDING BY
REASONING THAT A GENERAL JURY VERDICT WAS NOT A "RELIABLE" VEHICLE FOR
DETERMINING THE ISSUE OF VOLUNTARINESS BECAUSE JURORS MIGHT HAVE
DIFFICULTY IN SEPARATING THE ISSUES OF VOLUNTARINESS FROM THAT OF GUILT
OF INNOCENCE.  BUT THE EMPHASIS THERE WAS ON PROTECTION OF A SPECIFIC
CONSTITUTIONAL RIGHT, AND THE JACKSON PROCEDURE WAS DESIGNED AS A
SPECIFIC REMEDY TO ENSURE THAT AN INVOLUNTARY CONFESSION WAS NOT IN
FACT RELIED UPON BY THE JURY.  IN THE PROCEDURES BEFORE US, IN
CONTRAST, NO SPECIFIC FEDERAL RIGHT - SUCH AS THAT DEALING WITH
CONFESSIONS - IS INVOLVED; RELIANCE IS PLACED SOLELY ON A GENERAL
"FAIRNESS" APPROACH.  IN THIS AREA THE COURT HAS ALWAYS MOVED WITH
CAUTION BEFORE STRIKING DOWN STATE PROCEDURES.  IT WOULD BE EXTRAVAGANT
IN THE EXTREME TO TAKE JACKSON AS EVINCING A GENERAL DISTRUST ON THE
PART OF THIS COURT OF THE ABILITY OF JURIES TO APPROACH THEIR TASK
RESPONSIBLY AND TO SORT OUT DISCRETE ISSUES GIVEN TO THEM UNDER PROPER
INSTRUCTIONS BY THE JUDGE IN A CRIMINAL CASE, OR AS STANDING FOR THE
PROPOSITION THAT LIMITING INSTRUCTIONS CAN NEVER PURGE THE ERRONEOUS
INTRODUCTION OF EVIDENCE OR LIMIT EVIDENCE TO ITS RIGHTFUL PURPOSE. 
COMPARE OPPER V. UNITED STATES, 348 U.S. 84; LELAND V. OREGON, 343 U.S.
790.  (FN8) 

IT IS FAIR TO SAY THAT NEITHER THE JACKSON CASE NOR ANY OTHER DUE
PROCESS DECISION OF THIS COURT EVEN REMOTELY SUPPORTS THE PROPOSITION
THAT THE STATES ARE NOT FREE TO ENACT HABITUAL-OFFENDER STATUTES OF THE
TYPE TEXAS HAS CHOSEN AND TO ADMIT EVIDENCE DURING TRIAL TENDING TO
PROVE ALLEGATIONS REQUIRED UNDER THE STATUTORY SCHEME. 

TOLERANCE FOR A SPECTRUM OF STATE PROCEDURES DEALING WITH A COMMON
PROBLEM OF LAW ENFORCEMENT IS ESPECIALLY APPROPRIATE HERE.  THE RATE OF
RECIDIVISM IS ACKNOWLEDGED TO BE HIGH,  (FN9) A WIDE VARIETY OF METHODS
OF DEALING WITH THE PROBLEM EXISTS, AND EXPERIMENTATION IS IN
PROGRESS.  THE COMMON-LAW PROCEDURE FOR APPLYING RECIDIVIST STATUTES,
USED BY TEXAS IN THE CASES BEFORE US, WHICH REQUIRES ALLEGATIONS AND
PROOF OF PAST CONVICTIONS IN THE CURRENT TRIAL, IS, OF COURSE, THE
SIMPLEST AND BEST KNOWN PROCEDURE.  (FN10)  SOME JURISDICTIONS DEAL
WITH THE RECIDIVIST ISSUE IN A TOTALLY SEPARATE PROCEEDING, SEE, E.G.,
OYLER V. BOLES, 368 U.S. 448, AND AS ALREADY OBSERVED (N. 2, SUPRA)
TEXAS TO SOME EXTENT HAS RECENTLY CHANGED TO THAT COURSE.  IN SOME
STATES SUCH A PROCEEDING CAN BE INSTITUTED EVEN AFTER CONVICTION ON THE
NEW SUBSTANTIVE OFFENSE, SEE ORE.  REV.  STAT. SEC 168.040 (1959);
GRAHAM V. WEST VIRGINIA, 224 U.S. 616.  THE METHOD FOR DETERMINING
PRIOR CONVICTIONS VARIES ALSO BETWEEN JURISDICTIONS AFFORDING A JURY
TRIAL ON THIS ISSUE, E.G., FLA. STAT. ANN. SEC 775.11 (1965); AND THOSE
LEAVING THAT QUESTION TO THE COURT, SEE, E.G., FED. RULE CRIM. PROC.
32(A); MO. REV. STAT. SEC. 556.280(2) (1959).  (FN11)  ANOTHER
PROCEDURE, USED IN GREAT BRITAIN AND CONNECTICUT, SEE COINAGE OFFENCES
ACT, 1861, 24 & 25 VICT., C. 99; STATE V. FERRONE, 96 CONN. 160, 113 A.
452, REQUIRES THAT THE INDICTMENT ALLEGE BOTH THE SUBSTANTIVE CRIME AND
THE PRIOR CONVICTION, THAT BOTH PARTS BE READ TO THE DEFENDANT PRIOR TO
TRIAL, BUT THAT ONLY THE ALLEGATIONS RELATING TO THE SUBSTANTIVE CRIME
BE READ TO THE JURY.  IF THE DEFENDANT IS CONVICTED, THE PRIOR-OFFENSE
ELEMENTS ARE THEN READ TO THE JURY WHICH CONSIDERS ANY FACTUAL ISSUES
RAISED.  YET ANOTHER SYSTEM RELIES UPON THE PAROLE AUTHORITIES TO
WITHHOLD PAROLE IN ACCORDANCE WITH THEIR FINDINGS AS TO PRIOR
CONVICTIONS.  SEE, E.G., N.J. STAT. ANN. SEC 30:4-123.12 (1964).  AND
WITHIN EACH BROAD APPROACH DESCRIBED, OTHER VARIATIONS OCCUR. 

A DETERMINATION OF THE "BEST" RECIDIVIST TRIAL PROCEDURE NECESSARILY
INVOLVES A CONSIDERATION OF A WIDE VARIETY OF CRITERIA, SUCH AS WHICH
METHOD PROVIDES MOST ADEQUATE NOTICE TO THE DEFENDANT AND AN
OPPORTUNITY TO CHALLENGE THE ACCURACY AND VALIDITY OF THE ALLEGED PRIOR
CONVICTIONS, WHICH METHOD BEST MEETS THE PARTICULAR JURISDICTIONS'S
ALLOCATION OF RESPONSIBILITY BETWEEN COURT AND JURY, WHICH METHOD IS
BEST ACCOMMODATED TO THE STATE'S ESTABLISHED TRIAL PROCEDURES, AND OF
COURSE WHICH METHOD IS APT TO BE THE LEAST PREJUDICIAL IN TERMS OF THE
EFFECT OF PRIOR-CRIME EVIDENCE ON THE ULTIMATE ISSUE OF GUILT OR
INNOCENCE.  TO SAY THAT THE TWO-STAGE JURY TRIAL IN THE ENGLISH
CONNECTICUT STYLE IS PROBABLY THE FAIREST, AS SOME COMMENTATORS AND
COURTS HAVE SUGGESTED,  (FN12) AND WITH WHICH WE MIGHT WELL AGREE WERE
THE MATTER BEFORE US IN A LEGISLATIVE OR RULE-MAKING CONTEXT, IS A FAR
CRY FROM A CONSTITUTIONAL DETERMINATION THAT THIS METHOD OF HANDLING
THE PROBLEM IS COMPELLED BY THE FOURTEENTH AMENDMENT.  TWO-PART JURY
TRIALS ARE RARE IN OUR JURISPRUDENCE; THEY HAVE NEVER BEEN COMPELLED BY
THIS COURT AS A MATTER OF CONSTITUTIONAL LAW, OR EVEN AS A MATTER OF
FEDERAL PROCEDURE.   (FN13)  WITH RECIDIVISM THE MAJOR PROBLEM THAT IT
IS, SUBSTANTIAL CHANGES IN TRIAL PROCEDURE IN COUNTLESS LOCAL COURTS
AROUND THE COUNTRY WOULD BE REQUIRED WERE THIS COURT TO SUSTAIN THE
CONTENTIONS MADE BY THESE PETITIONERS.  THIS WE ARE UNWILLING TO DO.
TO TAKE SUCH A STEP WOULD BE QUITE BEYOND THE PALE OF THIS COURT'S
PROPER FUNCTION IN OUR FEDERAL SYSTEM.  IT WOULD BE A WHOLLY
UNJUSTIFIABLE ENCROACHMENT BY THIS COURT UPON THE CONSTITUTIONAL POWER
OF STATES TO PROMULGATE THEIR OWN RULES OF EVIDENCE TO TRY THEIR OWN
STATE-CREATED CRIMES IN THEIR OWN STATE COURTS, SO LONG AS THEIR RULES
ARE NOT PROHIBITED BY ANY PROVISION OF THE UNITED STATES CONSTITUTION,
WHICH THESE RULES ARE NOT.  THE JUDGMENTS IN THESE CASES ARE AFFIRMED. 

FN1  THE RECIDIVIST STATUTES HERE INVOLVED ARE ARTICLES 62, 63, AND
64 OF THE TEXAS PEN.  CODE (1952). 

ARTICLE 62 PROVIDES:  "IF IT BE SHOWN ON THE TRIAL OF A FELONY LESS
THAN CAPITAL THAT THE DEFENDANT HAS BEEN BEFORE CONVICTED OF THE SAME
OFFENSE, OR ONE OF THE SAME NATURE, THE PUNISHMENT ON SUCH SECOND OR
OTHER SUBSEQUENT CONVICTION SHALL BE THE HIGHEST WHICH IS AFFIXED TO
THE COMMISSION OF SUCH OFFENSES IN ORDINARY CASES." 

ARTICLE 63 PROVIDES:  "WHOEVER SHALL HAVE BEEN THREE TIMES CONVICTED
OF A FELONY LESS THAN CAPITAL SHALL ON SUCH THIRD CONVICTION BE
IMPRISONED FOR LIFE IN THE PENITENTIARY." 

ARTICLE 64 PROVIDES:  "A PERSON CONVICTED A SECOND TIME OF ANY
OFFENSE TO WHICH THE PENALTY OF DEATH IS AFFIXED AS AN ALTERNATE
PUNISHMENT SHALL NOT RECEIVE ON SUCH SECOND CONVICTION A LESS
PUNISHMENT THAN IMPRISONMENT FOR LIFE IN THE PENITENTIARY." 

FN2  THESE PROCEDURES WERE EMBODIED IN TEXAS CODE CRIM. PROC. ART.
642 (1941), PROVIDING AS FOLLOWS: "A JURY BEING IMPANELED IN ANY
CRIMINAL ACTION, THE CAUSE SHALL PROCEED IN INDICTMENT OR INFORMATION
SHALL BE READ TO THE JURY BY THE ATTORNEY PROSECUTING  ...  .  4.  THE
TESTIMONY ON THE PART OF THE STATE SHALL BE OFFERED."  BY JUDICIAL
GLOSS IT APPEARS THAT, AT LEAST IN NONCAPITAL CASES, A DEFENDANT BY
STIPULATING HIS PRIOR CONVICTIONS COULD KEEP KNOWLEDGE OF THEM AWAY
FROM THE JURY.  SEE PITCOCK V. STATE, 367 S.W.2D 864.  BUT SEE THE
DECISION BELOW IN SPENCER, 389 S.W.2D 304, FOR THE INAPPLICABILITY OF
THE STIPULATION RULE IN CAPITAL CASES.  IN THE VIEW WE TAKE OF THE
CONSTITUTIONAL ISSUE BEFORE US WE CONSIDER IT IMMATERIAL WHETHER OR NOT
THAT COURSE WAS OPEN TO ANY OF THE PETITIONERS.  SUBSEQUENT TO THE
PRESENT CONVICTIONS TEXAS HAS PASSED A NEW LAW RESPECTING THE PROCEDURE
GOVERNING RECIDIVIST CASES, THE EFFECT OF WHICH SEEMS TO BE THAT EXCEPT
IN CAPITAL CASES THE JURY IS NOT GIVEN THE RECIDIVIST ISSUE UNTIL IT
HAS FIRST FOUND THE DEFENDANT GUILTY UNDER THE PRINCIPAL CHARGE.  TEXAS
CODE CRIM. PROC. ART. 36.01, EFFECTIVE JANUARY 1, 1966.  SINCE THESE
CASES WERE ALL TRIED UNDER THE OLDER PROCEDURE, THE NEW STATUTE IS NOT
BEFORE US. 

FN3  THE QUESTION OF WHETHER SPENCER IS PROPERLY HERE AS AN APPEAL, A
MATTER WHICH WE POSTPONED TO CONSIDERATION OF THE MERITS, IS A TANGLED
ONE.  SEE DAHNKE-WALKER MILLING CO. V. BONDURANT, 257 U.S. 282; HART &
WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM, 565-567 (1953). 
RATHER THAN UNDERTAKE TO RESOLVE IT, WE THINK IT MORE PROFITABLE TO
DISMISS THIS APPEAL, TREAT IT AS A PETITION FOR CERTIORARI, 28 U.S.C.
SEC 2103, AND GRANT THE PETITION, PARTICULARLY AS THERE IS PENDING IN
THE COURT SPENCER'S TIMELY FILED ALTERNATIVE PETITION FOR CERTIORARI,
WHICH HAS BEEN HELD TO AWAIT THE OUTCOME OF THIS APPEAL.  ACCORDINGLY
WE HAVE IN THIS OPINION REFERRED TO SPENCER AS A "PETITIONER." 

FN4  THE REED CASE, UNLIKE THE SPENCER AND BELL CASES WHICH COME TO
US FROM THE COURT OF CRIMINAL APPEALS OF TEXAS, IS HERE FROM A JUDGMENT
OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMING
THE DISTRICT COURT'S DISMISSAL OF A WRIT OF HABEAS CORPUS ON THE GROUND
THAT THE TEXAS RECIDIVIST PROCEDURE DID NOT OFFEND THE UNITED STATES
CONSTITUTION.  343 F.2D 723. 

FN5  THE THIRD CIRCUIT IN UNITED STATES V. BANMILLER, 310 F.2D 720,
HELD A SIMILAR PENNSYLVANIA PROCEDURE, WHEN APPLIED IN CAPITAL CASES,
UNCONSTITUTIONAL.  THE FOURTH CIRCUIT HELD A COMPARABLE MARYLAND
RECIDIVIST PRACTICE UNCONSTITUTIONAL IN ALL CASES.  LANE V. WARDEN, 320
F.2D 179.  THE FIFTH CIRCUIT IN BREEN V. BETO, 341 F.2D 96, AND AGAIN
IN THE REED CASE BEFORE US TODAY, 343 F.2D 723, AND THE EIGHTH CIRCUIT
IN WOLFE V. NASH, 313 F.2D 393, HAVE HELD SUCH PROCEDURES
CONSTITUTIONAL.  THE NINTH CIRCUIT IN POWELL V. UNITED STATES, 35 F.2D
941, SUSTAINED THE PROCEDURE IN THE CONTEXT OF A SECOND OFFENSE UNDER
SEC 29 OF THE NATIONAL PROHIBITION ACT, 41 STAT. 316. 

FN6  SEE ANNOTATIONS AT 58 A.L.R. 20, 82 A.L.R. 345, 79 A.L.R.2D 826;
NOTE, RECIDIVIST PROCEDURES, 40 N.Y.U.L. REV. 332 (1965). 

FN7  THESE TEXAS CASES REFLECT THE RULES PREVAILING IN NEARLY ALL
COMMON-LAW JURISDICTIONS.  SEE GENERALLY MCCORMICK, EVIDENCE SECS 157
158 (1954); 1 WHARTON'S CRIMINAL EVIDENCE SECS 221-243 (ANDERSON ED.
1955); 1 WIGMORE, EVIDENCE SECS 215-218 (3D ED. 1940 AND 1964 SUPP.);
NOTE, OTHER CRIMES EVIDENCE AT TRIAL, 70 YALE L.J. 763 (1961).  FOR THE
ENGLISH RULES, SUBSTANTIALLY SIMILAR, SEE CROSS, EVIDENCE 292-333 (2D
ED.  1963).  RECENT COMMENTATORS HAVE CRITICIZED THE RULE OF GENERAL
EXCLUSION, AND HAVE SUGGESTED A BROADER RANGE OF ADMISSIBILITY.  MODEL
CODE OF EVIDENCE, RULE 311; CARTER, THE ADMISSIBILITY OF EVIDENCE OF
SIMILAR FACTS, 69 L.Q. REV. 80 (1953), 70 L.Q. REV. 214 (1954); NOTE,
PROCEDURAL PROTECTIONS OF THE CRIMINAL DEFENDANT, 78 HARV. L. REV. 426,
435-451 (1964).  FOR THE USE OF THIS TYPE OF EVIDENCE IN CONTINENTAL
JURISDICTIONS, SEE GLANVILLE WILLIAMS, THE PROOF OF GUILT 181 (2D ED.
1958); 1 WIGMORE, SUPRA, SEC 193. 

FN8  INDEED THE MOST RECENT SCHOLARLY STUDY OF JURY BEHAVIOR DOES NOT
SUSTAIN THE PREMISE THAT JURIES ARE ESPECIALLY PRONE TO PREJUDICE WHEN
PRIOR-CRIME EVIDENCE IS ADMITTED AS TO CREDIBILITY.  KALVEN & ZEISEL,
THE AMERICAN JURY (1966).  THE STUDY CONTRASTS THE EFFECT OF SUCH
EVIDENCE ON JUDGES AND JURIES AND CONCLUDES THAT "NEITHER THE ONE NOR
THE OTHER CAN BE SAID TO BE DISTINCTIVELY GULLIBLE OR SKEPTICAL."  ID.,
AT 180. 

FN9  SEE "CAREERS IN CRIME," A STATISTICAL SURVEY COLLECTED IN
UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1965, P. 27 (DEPT. OF
JUSTICE, 1966).  THE STATISTICAL ABSTRACT OF THE UNITED STATES, 1966,
REVEALS THAT 62% OF PRISONERS COMMITTED TO FEDERAL PRISONS IN THE YEAR
ENDING JUNE 30, 1965, HAD BEEN PREVIOUSLY COMMITTED.  ID., AT 163. 

FN10  FOR A SURVEY AND ANALYSIS OF THE VARIOUS RECIDIVIST PROCEDURES,
SEE NOTE, RECIDIVIST PROCEDURES, 40 N.Y.U.L. REV. 332 (1965); SEE ALSO
NOTE, THE PLEADING AND PROOF OF PRIOR CONVICTIONS IN HABITUAL CRIMINAL
PROSECUTIONS, 33 N.Y.U.L. REV. 210 (1958). 

FN11  TEXAS JURIES HAVE HAD AUTHORITY TO IMPOSE PUNISHMENT SINCE
1846, BUT IN ALL BUT 11 STATES THIS POWER IS HELD BY THE JUDGE.  SEE
REID, THE TEXAS CODE OF CRIMINAL PROCEDURE, 44 TEX. L. REV. 983, 1008
1009 (1966). 

FN12  SEE, E.G., LANE V. WARDEN, 320 F.2D 179; NOTE, 40 N.Y.U.L. REV.
332, 348 (1965).  OTHER COMMENTATORS HAVE CAUTIONED AGAINST A TOO HASTY
ADOPTION OF THE TWO-STAGE TRIAL.  SEE THE SECOND CIRCUIT DECISION IN
UNITED STATES V. CURRY, 358 F.2D 904, 914-915, WHERE THE COURT
DISCUSSED THE PROCEDURE AS IT APPLIED IN FEDERAL CAPITAL CASES, AND
CONCLUDED: "GIVEN THE MANY CONSIDERATIONS WHICH MAY AFFECT THE
NECESSITY FOR A TWO-STAGE TRIAL IN EACH CASE, AND CONSIDERING THE
QUESTIONABLE DESIRABILITY OF THIS UNTESTED TECHNIQUE, WE THINK IT BEST
TO LEAVE THIS QUESTION TO THE DISCRETION OF THE TRIAL COURT."  SEE ALSO
THE DISCUSSION OF THE PRACTICAL AND ADMINISTRATIVE DISADVANTAGES OF
SUCH A PROCEDURE IN FRADY V. UNITED STATES, 121 U.S. APP. D.C. 78, 108
109, 348 F.2D 84, 114-115 (DISSENTING OPINION).  WE HAVE BEEN PRESENTED
WITH NO POSITIVE INFORMATION CONCERNING ACTUAL EXPERIENCE WITH A
SEPARATE PENALTY PROCEDURE THAT WOULD BEAR ON A DECISION TO IMPOSE IT
UPON ALL THE STATES AS A MATTER OF CONSTITUTIONAL LAW.  ONE STUDY
SUGGESTS THAT AS A PRACTICAL MATTER SUCH A PROCEDURE HAS NOT PROVED
HELPFUL TO DEFENDANTS:  "THE CALIFORNIA EXPERIENCE, DATING BACK TO
1957, HAS RATHER BEEN THAT DEFENSE COUNSEL HAVE OFTEN NEGLECTED TO
PREPARE ADEQUATELY FOR THE PENALTY PHASE AND HAVE EXHIBITED A LACK OF
SOPHISTICATION CONCERNING WHAT FACTS SHOULD BE ADVANCED AS MITIGATING. 
APPARENTLY, THE APPROACH OF DEFENSE LAWYERS HAS BEEN TO DEVOTE THE BULK
OF THEIR EFFORTS TO THE SUBSTANTIVE ISSUE OF GUILT AND TO RELEGATE THE
PENALTY PHASE TO A MINOR ROLE.  ON THE OTHER HAND, THE PROSECUTION HAS
TAKEN COMPLETE ADVANTAGE OF THE PENALTY PHASE AND HAS ATTEMPTED TO
MARSHAL AND TO PRESENT TO THE JURY ALL OF THE AGGRAVATING CIRCUMSTANCES
THAT EXIST."  NOTE, EXECUTIVE CLEMENCY IN CAPITAL CASES, 39 N.Y.U.L.
REV. 136, 167 (1964).    FN13  IN CASES WHERE, AS IN SPENCER, A JURY
ITSELF FIXES THE PENALTY, THE EFFECT OF THE EMPHASIS IN THE CHIEF
JUSTICE'S SEPARATE OPINION UPON THE USE OF A STIPULATION WOULD IN
REALITY BE TO REQUIRE, AS A MATTER OF FEDERAL CONSTITUTIONAL LAW, A TWO
STAGE JURY TRIAL.  FOR A STIPULATION NO LESS THAN EVIDENTIARY PROOF
WOULD BRING THE FACT OF PRIOR CONVICTIONS BEFORE THE TRIAL JURY. 

MR. JUSTICE STEWART, CONCURRING. 

IF THE CONSTITUTION GAVE ME A ROVING COMMISSION TO IMPOSE UPON THE
CRIMINAL COURTS OF TEXAS MY OWN NOTIONS OF ENLIGHTENED POLICY, I WOULD
NOT JOIN THE COURT'S OPINION.  FOR IT IS CLEAR TO ME THAT THE
RECIDIVIST PROCEDURES ADOPTED IN RECENT YEARS BY MANY OTHER STATES
(FN1) - AND BY TEXAS HERSELF SINCE JANUARY 1 OF LAST YEAR  (FN2) - ARE
FAR SUPERIOR TO THOSE UTILIZED IN THE CASES NOW BEFORE US.  BUT THE
QUESTION FOR DECISION IS NOT WHETHER WE APPLAUD OR EVEN WHETHER WE
PERSONALLY APPROVE THE PROCEDURES FOLLOWED IN THESE RECIDIVIST CASES. 
THE QUESTION IS WHETHER THOSE PROCEDURES FALL BELOW THE MINIMUM LEVEL
THE FOURTEENTH AMENDMENT WILL TOLERATE.  UPON THAT QUESTION I AM
CONSTRAINED TO JOIN THE OPINION AND JUDGMENT OF THE COURT. 

FN1  SEE OPINION OF THE CHIEF JUSTICE, POST, AT 586, N. 11. 

FN2  SEE OPINION OF THE COURT, ANTE, AT 556, N. 2. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE FORTAS CONCURS,
DISSENTING IN NOS. 68 AND 69, AND CONCURRING IN NO. 70. 

IT SEEMS TO ME THAT THE ONLY ARGUMENT MADE BY THE COURT WHICH MIGHT
SUPPORT ITS DISPOSITION OF THESE CASES IS THE AMORPHOUS ONE THAT THIS
COURT SHOULD PROCEED HESITANTLY IN DEALING WITH COURTROOM PROCEDURES
WHICH ARE ALLEGED TO VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  IT ATTEMPTS TO BOLSTER ITS DECISION WITH ARGUMENTS ABOUT
THE CONCEDED VALIDITY OF THE PURPOSE OF RECIDIVIST STATUTES AND BY
POINTING TO OCCASIONS WHEN EVIDENCE OF PRIOR CRIMES IS TRADITIONALLY
ADMITTED TO SERVE A SPECIFIC PURPOSE RELATED TO FINDING GUILT OR
INNOCENCE.  FOR THE REASONS WHICH I SHALL DISCUSS, I DO NOT FIND IN
THESE TWO ARGUMENTS SUPPORT FOR THE DECISION.  NOR AM I PERSUADED BY
ITS CAUTIOUS ATTITUDE TOWARD THIS PROCEDURE.  I RECOGNIZE THAT THE
CRITERIA FOR DECISION IN PROCEDURAL DUE PROCESS CASES ARE NECESSARILY
DRAWN FROM THE TRADITIONAL JURISPRUDENTIAL ATTITUDES OF OUR LEGAL
SYSTEM RATHER THAN FROM A RELATIVELY SPECIFIC CONSTITUTIONAL COMMAND. 
HOWEVER, THIS COURT HAS LONG RECOGNIZED THE CENTRAL IMPORTANCE OF
COURTROOM PROCEDURES IN MAINTAINING OUR CONSTITUTIONAL LIBERTIES.  AS
MR. JUSTICE FRANKFURTER OFTEN REMINDED US, THE HISTORY OF INDIVIDUAL
LIBERTY IS LARGELY COINCIDENT WITH THE HISTORY OF OBSERVANCE OF
PROCEDURAL SAFEGUARDS, JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH,
341 U.S. 123, CONCURRING OPINION OF FRANKFURTER, J., AT 164. 

IT SEEMS TO ME THAT THE USE OF PRIOR-CONVICTIONS EVIDENCE IN THESE
CASES IS FUNDAMENTALLY AT ODDS WITH TRADITIONAL NOTIONS OF DUE PROCESS,
NOT BECAUSE THIS PROCEDURE IS NOT THE NICEST RESOLUTION OF CONFLICTING
BUT LEGITIMATE INTERESTS OF THE STATE AND THE ACCUSED, BUT BECAUSE IT
NEEDLESSLY PREJUDICES THE ACCUSED WITHOUT ADVANCING ANY LEGITIMATE
INTEREST OF THE STATE.  IF I AM WRONG IN THINKING THAT THE INTRODUCTION
OF PRIOR-CONVICTIONS EVIDENCE SERVES NO VALID PURPOSE I AM NOT ALONE,
FOR THE COURT NEVER STATES WHAT INTEREST OF THE STATE IS ADVANCED BY
THIS PROCEDURE.  AND THIS FAILURE, IN MY VIEW, UNDERMINES THE LOGIC OF
THE COURT'S OPINION. 

THERE IS MUCH SAID ABOUT THE VALID PURPOSE OF ENHANCED PUNISHMENT FOR
REPEATING OFFENDERS, WITH WHICH I AGREE, AND ABOUT THE VARIETY OF
OCCASIONS IN CRIMINAL TRIALS IN WHICH PRIOR-CRIMES EVIDENCE IS ADMITTED
AS HAVING SOME RELEVANCE TO THE QUESTION OF GUILT OR INNOCENCE.  BUT I
CANNOT FIND SUPPORT FOR THIS PROCEDURE IN EITHER THE PURPOSES OF
RECIDIVIST STATUTES OR BY ANALOGY TO THE TRADITIONAL OCCASIONS WHERE
PRIOR-CRIMES EVIDENCE IS ADMITTED.  AND THE COURT NEVER FACES UP TO THE
PROBLEM OF TRYING TO JUSTIFY THIS RECIDIVIST PROCEDURE ON THE GROUND
THAT THE STATE WOULD NOT VIOLATE DUE PROCESS IF IT USED PRIOR
CONVICTIONS SIMPLY AS EVIDENCE OF GUILT BECAUSE IT SHOWED CRIMINAL
PROPENSITY. 

RECIDIVIST STATUTES HAVE NEVER BEEN THOUGHT TO ALLOW THE STATE TO
SHOW PROBABILITY OF GUILT BECAUSE OF PRIOR CONVICTIONS.  THEIR
JUSTIFICATION IS ONLY THAT A DEFENDANT'S PRIOR CRIMES SHOULD LEAD TO
ENHANCED PUNISHMENT FOR ANY SUBSEQUENT OFFENSES.  RECIDIVIST STATUTES
EMBODY FOUR TRADITIONAL RATIONALES FOR IMPOSING PENAL SANCTIONS.  (FN1)
A MAN'S PRIOR CRIMES ARE THOUGHT TO AGGRAVATE HIS GUILT FOR SUBSEQUENT
CRIMES, AND THUS GREATER THAN USUAL RETRIBUTION IS WARRANTED. 
SIMILARLY, THE POLICIES OF INSULATING SOCIETY FROM PERSONS WHOSE PAST
CONDUCT INDICATES THEIR PROPENSITY TO CRIMINAL BEHAVIOR, OF PROVIDING
DETERRENCE FROM FUTURE CRIME, AND OF REHABILITATING CRIMINALS ARE ALL
THEORETICALLY SERVED BY ENHANCED PUNISHMENT ACCORDING TO RECIDIVIST
STATUTES.  NONE OF THESE FOUR TRADITIONAL JUSTIFICATIONS FOR RECIDIVIST
STATUTES IS RELATED IN ANY WAY TO THE BURDEN OF PROOF TO WHICH THE
STATE IS PUT TO PROVE THAT A CRIME HAS CURRENTLY BEEN COMMITTED BY THE
ALLEGED RECIDIVIST.  THE FACT OF PRIOR CONVICTIONS IS NOT INTENDED BY
RECIDIVIST STATUTES TO MAKE IT ANY EASIER FOR THE STATE TO PROVE THE
COMMISSION OF A SUBSEQUENT CRIME.  THE STATE DOES NOT ARGUE IN THESE
CASES THAT ITS STATUTES ARE, OR CONSTITUTIONALLY COULD BE, INTENDED TO
ALLOW THE PROSECUTOR TO INTRODUCE PRIOR CONVICTIONS TO SHOW THE
ACCUSED'S CRIMINAL DISPOSITION.  BUT THE COURT'S OPINION SEEMS TO
ACCEPT, WITHOUT DISCUSSION, THAT THIS USE OF PRIOR-CRIMES EVIDENCE
WOULD BE CONSISTENT WITH DUE PROCESS. 

THE AMENDED TEXAS PROCEDURE IS THE NEAREST DEMONSTRATION THAT NONE OF
THE INTERESTS SERVED BY RECIDIVIST STATUTES IS ADVANCED BY PRESENTATION
OF PRIOR-CRIMES EVIDENCE BEFORE THE DEFENDANT HAS BEEN FOUND GUILTY. 
UNDER CURRENT STATUTORY LAW,  (FN2) EFFECTIVE SINCE JANUARY 1, 1966,
AND THEREFORE NOT INVOLVED IN THESE CASES, IN FELONY CASES THE JURY
FIRST DECIDES THE QUESTION OF GUILT OR INNOCENCE OF THE CRIME CURRENTLY
CHARGED, AND ONLY AFTER THE DEFENDANT IS FOUND GUILTY OF THE CURRENT
CRIME IS EVIDENCE PRESENTED ON THE ENTIRELY SEPARATE QUESTION OF
WHETHER THE DEFENDANT HAS BEEN PREVIOUSLY CONVICTED OF A CRIME WHICH
PLACES HIM WITHIN THE SCOPE OF A RECIDIVIST STATUTE REQUIRING ENHANCED
PUNISHMENT.  UNDER THE OLD TEXAS PROCEDURE INVOLVED IN THESE CASES,
JUST AS UNDER THE NEW PROCEDURE, THE FACT OF PRIOR CONVICTIONS IS
RELEVANT ONLY TO THE QUESTION OF ENHANCED PUNISHMENT.  RECIDIVIST
STATUTES HAVE NOTHING WHATEVER TO DO WITH THE METHOD BY WHICH THE STATE
SHOWS THAT AN ACCUSED HAS COMMITTED A CRIME. 

WHETHER OR NOT A STATE HAS RECIDIVIST STATUTES ON ITS BOOKS, IT IS
WELL ESTABLISHED THAT EVIDENCE OF PRIOR CONVICTIONS MAY NOT BE USED BY
THE STATE TO SHOW THAT THE ACCUSED HAS A CRIMINAL DISPOSITION AND THAT
THE PROBABILITY THAT HE COMMITTED THE CRIME CURRENTLY CHARGED IS
INCREASED.  (FN3)  WHILE THIS COURT HAS NEVER HELD THAT THE USE OF
PRIOR CONVICTIONS TO SHOW NOTHING MORE THAN A DISPOSITION TO COMMIT
CRIME WOULD VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
OUR DECISIONS EXERCISING SUPERVISORY POWER OVER CRIMINAL TRIALS IN
FEDERAL COURTS,  (FN4) AS WELL AS DECISIONS BY COURTS OF APPEALS  (FN5)
AND OF STATE COURTS,  (FN6) SUGGEST THAT EVIDENCE OF PRIOR CRIMES
INTRODUCED FOR NO PURPOSE OTHER THAN TO SHOW CRIMINAL DISPOSITION WOULD
VIOLATE THE DUE PROCESS CLAUSE.  EVIDENCE OF PRIOR CONVICTIONS HAS BEEN
FORBIDDEN BECAUSE IT JEOPARDIZES THE PRESUMPTION OF INNOCENCE OF THE
CRIME CURRENTLY CHARGED.  A JURY MIGHT PUNISH AN ACCUSED FOR BEING
GUILTY OF A PREVIOUS OFFENSE, OR FEEL THAT INCARCERATION IS JUSTIFIED
BECAUSE THE ACCUSED IS A "BAD MAN," WITHOUT REGARD TO HIS GUILT OF THE
CRIME CURRENTLY CHARGED.  OF COURSE IT FLOUTS HUMAN NATURE TO SUPPOSE
THAT A JURY WOULD NOT CONSIDER A DEFENDANT'S PREVIOUS TROUBLE WITH THE
LAW IN DECIDING WHETHER HE HAS COMMITTED THE CRIME CURRENTLY CHARGED
AGAINST HIM.  AS MR. JUSTICE JACKSON PUT IT IN A FAMOUS PHRASE, "THE
NAIVE ASSUMPTION THAT PREJUDICIAL EFFECTS CAN BE OVERCOME BY
INSTRUCTIONS TO THE JURY  ...  ALL PRACTICING LAWYERS KNOW TO BE
UNMITIGATED FICTION."  KRULEWITCH V. UNITED STATES, 336 U.S. 440, 453
(CONCURRING OPINION)(1949).  UNITED STATES V. BANMILLER, 310 F.2D 720,
725 (C.A. 3D CIR. 1962).  MR. JUSTICE JACKSON'S ASSESSMENT HAS RECEIVED
SUPPORT FROM THE MOST AMBITIOUS EMPIRICAL STUDY OF JURY BEHAVIOR THAT
HAS BEEN ATTEMPTED, SEE KALVEN & ZEISEL, THE AMERICAN JURY 127-130, 177
180. 

RECOGNITION OF THE PREJUDICIAL EFFECT OF PRIOR-CONVICTIONS EVIDENCE
HAS TRADITIONALLY BEEN RELATED TO THE REQUIREMENT OF OUR CRIMINAL LAW
THAT THE STATE PROVE BEYOND A REASONABLE DOUBT THE COMMISSION OF A
SPECIFIC CRIMINAL ACT.  IT IS SURELY ENGRAINED IN OUR JURISPRUDENCE
THAT AN ACCUSED'S REPUTATION OR CRIMINAL DISPOSITION IS NO BASIS FOR
PENAL SANCTIONS.  BECAUSE OF THE POSSIBILITY THAT THE GENERALITY OF THE
JURY'S VERDICT MIGHT MASK A FINDING OF GUILT BASED ON AN ACCUSED'S PAST
CRIMES OR UNSAVORY REPUTATION, STATE AND FEDERAL COURTS HAVE
CONSISTENTLY REFUSED TO ADMIT EVIDENCE OF PAST CRIMES EXCEPT IN
CIRCUMSTANCES WHERE IT TENDS TO PROVE SOMETHING OTHER THAN GENERAL
CRIMINAL DISPOSITION. 

AS I HAVE STATED, I DO NOT UNDERSTAND THE OPINION TO ASSERT THAT THIS
COURT WOULD FIND CONSISTENT WITH DUE PROCESS THE ADMISSION OF PRIOR
CRIMES EVIDENCE FOR NO PURPOSE OTHER THAN WHAT PROBATIVE VALUE IT HAS
BEARING ON AN ACCUSED'S DISPOSITION TO COMMIT A CRIME CURRENTLY
CHARGED.  IT IGNORES THIS ISSUE, AND POINTS OUT THAT EVIDENCE OF PRIOR
CRIMES IN OTHER CONTEXTS HAS NOT BEEN THOUGHT SO PREJUDICIAL THAT IT
CANNOT BE ADMITTED TO SERVE A PARTICULAR VALID PURPOSE.  THUS, PAST
CRIMES MAY BE USED TO SHOW A COMMON DESIGN BETWEEN A PAST CRIME AND ONE
CURRENTLY CHARGED, TO SHOW THE DISTINCTIVE HANDIWORK OF THE DEFENDANT,
OR TO SHOW THAT THE ACT PRESENTLY AT ISSUE WAS PROBABLY NOT
UNINTENTIONAL.  (FN7)  WE NEED NOT DISAGREE WITH THE ADMISSION OF
EVIDENCE OF PRIOR CONVICTIONS IN CASES SUCH AS THESE, BECAUSE PAST
CONVICTIONS ARE DIRECTLY RELEVANT TO THE QUESTION OF GUILT OR INNOCENCE
OF THE CRIME CURRENTLY CHARGED.  IT IS ADMITTED BECAUSE ITS PROBATIVE
VALUE, GOING TO ELEMENTS OF THE CURRENT CHARGES, IS SO STRONG THAT IT
OUTWEIGHS THE PREJUDICE INHERENT IN EVIDENCE OF PRIOR CRIMES.  ALSO, AS
THE COURT FURTHER POINTS OUT, EVIDENCE OF PRIOR CRIMES HAS
TRADITIONALLY BEEN ADMITTED TO EITHER IMPEACH THE DEFENDANT'S
CREDIBILITY WHEN HE TESTIFIES IN HIS OWN BEHALF, OR TO COUNTERACT
EVIDENCE INTRODUCED BY THE DEFENDANT AS TO HIS GOOD CHARACTER.  IN EACH
OF THESE SITUATIONS, THE POSSIBILITY OF PREJUDICE RESULTING FROM THE
EVIDENCE OF PRIOR CONVICTIONS IS THOUGHT TO BE OUTWEIGHED BY THE
LEGITIMATE PURPOSES SERVED BY THE EVIDENCE.  WHEN A DEFENDANT ATTEMPTS
TO CONVINCE THE JURY OF HIS INNOCENCE BY SHOWING IT THAT HE IS A PERSON
OF SUCH CHARACTER THAT IT IS UNLIKELY THAT HE COMMITTED THE CRIME
CHARGED, THE STATE HAS A LEGITIMATE INTEREST IN COUNTERACTING THIS
EVIDENCE OF GOOD CHARACTER BY SHOWING THAT THE ACCUSED HAS BEEN
PREVIOUSLY CONVICTED.  THE DEFENDANT HAS INITIATED THE INQUIRY INTO HIS
REPUTATION, AND THE STATE SHOULD BE ALLOWED TO RESPOND TO THIS GENERAL
CHARACTER EVIDENCE AS BEST IT CAN. 

SIMILARLY, WHEN PRIOR CONVICTIONS ARE INTRODUCED TO IMPEACH THE
CREDIBILITY OF A DEFENDANT WHO TESTIFIES, A SPECIFIC PURPOSE IS THOUGHT
TO BE SERVED.  THE THEORY IS THAT THE STATE SHOULD BE PERMITTED TO SHOW
THAT THE DEFENDANT-WITNESS' CREDIBILITY IS QUALIFIED BY HIS PAST RECORD
OF DELINQUENT BEHAVIOR.  IN OTHER WORDS, THE DEFENDANT IS PUT TO THE
SAME CREDIBILITY TEST AS ANY OTHER WITNESS.  A DEFENDANT HAS SOME
CONTROL OVER THE STATE'S OPPORTUNITY TO INTRODUCE THIS EVIDENCE IN THAT
HE MAY DECIDE WHETHER OR NOT TO TAKE THE STAND.  MOREOVER, THE JURY
HEARS OF THE PRIOR CONVICTIONS FOLLOWING A DEFENDANT'S TESTIMONY, AND
IT MAY BE THOUGHT THAT THIS TRIAL CONTEXT COMBINED WITH THE USUAL
LIMITING INSTRUCTION RESULTS IN THE JURY'S ACTUALLY BEHAVING IN
ACCORDANCE WITH THE THEORY OF LIMITING INSTRUCTIONS:  THAT IS, THAT THE
PRIOR CONVICTIONS ARE ONLY TAKEN INTO ACCOUNT IN ASSESSING THE
DEFENDANT'S CREDIBILITY. 

ALTHOUGH THE THEORY JUSTIFYING ADMISSION OF EVIDENCE OF PRIOR
CONVICTIONS TO IMPEACH A DEFENDANT'S CREDIBILITY HAS BEEN CRITICIZED,
(FN8) ALL THAT IS NECESSARY FOR PURPOSES OF DECIDING THIS CASE IS TO
ACCEPT ITS THEORETICAL JUSTIFICATION AND TO NOTE THE BASIC DIFFERENCE
BETWEEN IT AND THE TEXAS RECIDIVIST PROCEDURE.  IN THE CASE OF
IMPEACHMENT, AS IN ALL THE EXAMPLES CITED BY THE COURT, THE PRIOR
CONVICTIONS ARE CONSIDERED PROBATIVE FOR A LIMITED PURPOSE WHICH IS
RELEVANT TO THE JURY'S FINDING OF GUILT OR INNOCENCE.  THIS PURPOSE IS,
OF COURSE, COMPLETELY DIFFERENT FROM THE PURPOSE FOR WHICH PRIOR
CONVICTIONS ARE ADMITTED IN RECIDIVIST CASES, WHERE THERE IS NO
CONNECTION BETWEEN THE EVIDENCE AND GUILT OR INNOCENCE. 

IN ALL THE SITUATIONS POINTED OUT BY THE COURT, THE ADMISSION OF
PRIOR-CRIMES EVIDENCE RESTS ON A CONCLUSION THAT THE PROBATIVE VALUE OF
THE EVIDENCE OUTWEIGHS THE CONCEDED POSSIBILITY OF PREJUDICE.   THERE
IS NO MIDDLE POSITION BETWEEN THE ALTERNATIVES OF ADMISSION OR
EXCLUSION BECAUSE, IF THE EVIDENCE IS TO SERVE THE PURPOSE FOR WHICH IT
IS CONSIDERED PROBATIVE, IT MUST BE ADMITTED BEFORE THE JURY DECIDES
WHETHER THE DEFENDANT IS GUILTY OR INNOCENT.  THE PROBLEM THUS BECOMES
THE DELICATE ONE OF BALANCING PROBATIVE VALUE AGAINST THE POSSIBILITY
OF PREJUDICE, AND THE RESULT FOR MOST STATE AND FEDERAL COURTS
(INCLUDING THIS COURT IN THE EXERCISE OF ITS SUPERVISORY POWER OVER
PROCEEDINGS IN FEDERAL COURTS) HAS BEEN THAT THE TRIAL JUDGE IS GIVEN
DISCRETION TO DRAW THE BALANCE IN THE CONTEXT OF THE TRIAL.  IN VIEW OF
THIS UNIFORM TRADITION, IT IS APPARENT THAT PRIOR-CONVICTIONS EVIDENCE
INTRODUCED FOR CERTAIN SPECIFIC PURPOSES RELATING TO THE DETERMINATION
OF GUILT OR INNOCENCE, OTHER THAN TO SHOW A GENERAL CRIMINAL
DISPOSITION, WOULD NOT VIOLATE THE DUE PROCESS CLAUSE.    FROM THESE
SITUATIONS WHERE THE PROBATIVE VALUE OF PRIOR CONVICTIONS EVIDENCE IS
THOUGHT TO OUTWEIGH ITS PREJUDICIAL IMPACT, THE COURT DRAWS THE
LEGITIMATE CONCLUSION THAT PRIOR-CONVICTIONS EVIDENCE IS NOT SO
INHERENTLY PREJUDICIAL THAT ITS ADMISSION IS INVARIABLY PROHIBITED.  IT
COMBINES THIS PREMISE WITH THE CONCEDEDLY VALID PURPOSE OF RECIDIVIST
STATUTES TO PRODUCE THE FOLLOWING LOGIC:  SINCE PRIOR-CRIMES EVIDENCE
MAY BE ADMITTED AT THE GUILT PHASE OF A TRIAL WHERE THE ADMISSION
SERVES A VALID PURPOSE AND SINCE THE PURPOSE OF RECIDIVIST STATUTES IS
VALID, PRIOR CRIMES MAY BE PROVEN IN THE COURSE OF THE GUILT PHASE OF A
TRIAL IN ORDER THAT THE JURY MAY ALSO ASSESS WHETHER A DEFENDANT, IF
FOUND GUILTY, SHOULD BE SENTENCED TO AN ENHANCED PUNISHMENT UNDER
RECIDIVIST STATUTES.  I BELIEVE THIS SYLLOGISM IS PLAUSIBLE ONLY ON THE
SURFACE, BECAUSE THE COURT'S PREMISES DO NOT COMBINE TO JUSTIFY ITS FAR
REACHING RESULT.  I BELIEVE THE COURT HAS FALLEN INTO THE LOGICAL
FALLACY SOMETIMES KNOWN AS THE FALLACY OF THE UNDISTRIBUTED MIDDLE,
BECAUSE IT HAS FAILED TO EXAMINE THE SUPPOSEDLY SHARED PRINCIPLE
BETWEEN ADMISSION OF PRIOR CRIMES RELATED TO GUILT AND ADMISSION IN
CONNECTION WITH RECIDIVIST STATUTES.  (FN9)  THAT THE ADMISSION IN BOTH
SITUATIONS MAY SERVE A VALID PURPOSE DOES NOT DEMONSTRATE THAT THE
FORMER PRACTICE JUSTIFIES THE LATTER ANY MORE THAN THE FACT THAT MEN
AND DOGS ARE ANIMALS MEANS THAT MEN AND DOGS ARE THE SAME IN ALL
RESPECTS. 

UNLIKE THE PURPOSE FOR THE ADMISSION OF PRIOR-CONVICTIONS EVIDENCE IN
ALL THE EXAMPLES CITED BY THE COURT, THE ADMISSION IN CONNECTION WITH
ENHANCING PUNISHMENT FOR REPEATING OFFENDERS HAS NOTHING WHATEVER TO DO
WITH THE QUESTION OF GUILT OR INNOCENCE OF THE CRIME CURRENTLY
CHARGED.  BECAUSE OF THE COMPLETE IRRELEVANCE OF PRIOR CONVICTIONS TO
THE QUESTION OF GUILT OR INNOCENCE, THE RECIDIVIST SITUATION IS NOT ONE
WHERE THE TRIAL COURTS ARE CALLED UPON TO BALANCE THE PROBATIVE VALUE
OF PRIOR CONVICTIONS AGAINST THEIR PREJUDICIAL IMPACT.  THE PURPOSE OF
ADMITTING PRIOR-CONVICTIONS EVIDENCE SHOULD BE SERVED AND PREJUDICE
COMPLETELY AVOIDED BY THE SIMPLE EXPEDIENT OF A PROCEDURE WHICH
REFLECTS THE EXCLUSIVE RELEVANCE OF RECIDIVIST STATUTES TO THE ISSUE OF
PROPER PUNISHMENT.  ONLY AFTER A DEFENDANT HAS BEEN FOUND GUILTY DOES
THE QUESTION OF WHETHER HE FITS THE RECIDIVIST CATEGORY BECOME RELEVANT
TO THE SENTENCE, AND ANY ISSUE OF FACT AS TO HIS PRIOR CONVICTIONS
SHOULD THEN BE DECIDED BY THE JURY. 

THE AVAILABILITY OF THIS PROCEDURAL ALTERNATIVE, THROUGH WHICH THE
INTERESTS OF THE STATE AS REFLECTED IN ITS RECIDIVIST STATUTES CAN BE
FULLY EFFECTUATED WHILE PREJUDICE TO THE DEFENDANT IS AVOIDED, MEANS
THAT THE ONLY INTEREST THE STATE MAY OFFSET AGAINST THE POSSIBILITY OF
PREJUDICE TO JUSTIFY INTRODUCING EVIDENCE OF PRIOR CRIMES IN THESE
CASES IS THE INCONVENIENCE WHICH WOULD RESULT FROM POSTPONING A
DETERMINATION THAT THE DEFENDANT FALLS WITHIN A RECIDIVIST CATEGORY
UNTIL AFTER THE JURY HAS FOUND HIM GUILTY OF THE CRIME CURRENTLY
CHARGED.  HOWEVER, FOR THE PURPOSE OF DECIDING THESE CASES, IT IS NOT
NECESSARY TO CONSIDER WHETHER THE STATE'S CONVENIENCE IN NOT CONDUCTING
A TWO-STAGE TRIAL JUSTIFIES THE PREJUDICE WHICH ENSUES WHEN PRIOR
CONVICTIONS ARE PRESENTED TO A JURY BEFORE IT HAS DECIDED WHETHER THE
DEFENDANT IS GUILTY OF THE CRIME CHARGED.  FOR THE FACT IS THAT TEXAS
HAS NOT EVEN THIS MATTER OF CONVENIENCE IN THE METHOD USED TO FIND
FACTS REGARDING PRIOR CONVICTIONS TO BALANCE AGAINST THE PREJUDICE
WHICH ENSUES FROM THE ADMISSION OF THIS PRIOR-CONVICTIONS EVIDENCE.  IN
NO. 68, SPENCER V. TEXAS, THE DEFENDANT OFFERED TO STIPULATE TO THE
TRUTH OF THAT PORTION OF THE INDICTMENT WHICH ALLEGED THAT HE HAD BEEN
PREVIOUSLY CONVICTED OF A CRIME WHICH PUT HIM WITHIN THE SCOPE OF A
RECIDIVIST STATUTE.  THE PROSECUTOR REFUSED TO ACCEPT THIS STIPULATION,
AND THE TEXAS COURTS ALLOWED PROOF OF THE PRIOR CONVICTION TO BE
PRESENTED TO THE JURY ON THE GROUND THAT, UNDER THE RECIDIVIST STATUTE
DEALING WITH CAPITAL CRIMES, THE JURY HAS A CHOICE BETWEEN THE DEATH
PENALTY AND LIFE IMPRISONMENT.  THE COURTS REASONED THAT THE EXISTENCE
OF THE PRIOR CONVICTION WAS INFORMATION WHICH THE JURY WOULD FIND
RELEVANT IN DETERMINING SENTENCE.  OF COURSE, THE OFFERED STIPULATION
DISPENSED COMPLETELY WITH THE NEED FOR THE STATE TO HAVE THE FACT OF
PRIOR CRIMES FOUND BY THE JURY TO DETERMINE WHETHER A RECIDIVIST
STATUTE APPLIED TO THE DEFENDANT.  INSTEAD, THE STATE TRIES TO JUSTIFY
THE REFUSAL TO ACCEPT THE STIPULATION ON THE GROUND THAT IT WAS
RELEVANT TO THE JURY'S DISCRETION IN ORDERING THE DEATH PENALTY.  BUT
THIS RATIONALE WOULD JUSTIFY LETTING THE JURY HEAR, BEFORE DETERMINING
GUILT OR INNOCENCE, ALL KINDS OF EVIDENCE WHICH MIGHT BE RELEVANT TO
SENTENCING BUT WHICH HAS TRADITIONALLY BE CONSIDERED EXTREMELY
PREJUDICIAL IF ADMITTED DURING THE GUILT PHASE OF A TRIAL.  THUS, THIS
ARGUMENT WOULD JUSTIFY ADMITTING PROBATION REPORTS, ALL KINDS OF
HEARSAY EVIDENCE ABOUT THE DEFENDANT'S PAST, MEDICAL AND PSYCHIATRIC
REPORTS, AND VIRTUALLY ANYTHING ELSE WHICH MIGHT SEEM RELEVANT TO THE
BROAD DISCRETION EXERCISED IN SENTENCING.  THE COURT EVIDENTLY BELIEVES
THAT IT IS CONSISTENT WITH DUE PROCESS FOR A STATE TO INTRODUCE
EVIDENCE OF A KIND TRADITIONALLY CONSIDERED PREJUDICIAL WHICH IS
RELEVANT ONLY TO SENTENCING DISCRETION IN A SINGLE-STAGE TRIAL BEFORE A
FINDING OF GUILT.  THIS SEEMS TO ME THE ONLY POSSIBLE GROUND FOR
AFFIRMING NO. 68, SINCE IT IS OBVIOUS THAT THE OFFER OF STIPULATION
REMOVES THE NEED FOR A FINDING OF FACT AS TO THE PRIOR CONVICTION IN
CONNECTION WITH THE RECIDIVIST STATUTE. 

I WOULD REVERSE NO. 68 AND REMAND FOR A NEW TRIAL.  FOR ME, THE
STATE'S REFUSAL TO ACCEPT THE STIPULATION REMOVES ANY VESTIGE OF
LEGITIMATE INTEREST IT MIGHT HAVE TO BALANCE AGAINST THE PREJUDICE TO
THE ACCUSED.  TO NEVERTHELESS ADMIT THE EVIDENCE SEEMS TO ME ENTIRELY
INCONSISTENT WITH THE WAY EVIDENCE OF PRIOR CONVICTIONS IS
TRADITIONALLY HANDLED IN OUR LEGAL SYSTEM. 

WHAT I HAVE SAID ABOUT THE STATE'S LACK OF INTEREST IN INTRODUCING
THIS EVIDENCE WHEN THE DEFENDANT TRIES TO STIPULATE TO THE PRIOR
CONVICTION SEEMS TO ME TO APPLY EQUALLY TO DEFENDANTS UNDER THE TEXAS
PROCEDURE WHO WERE NOT OFFERED THE OPPORTUNITY OF STIPULATING TO THEIR
PRIOR CONVICTIONS.  BECAUSE OF THE UNCLEAR STATE OF THE LAW IN TEXAS AS
TO THE RIGHT TO HAVE SUCH A STIPULATION ACCEPTED, THE FAILURE OF A
DEFENDANT TO VOLUNTEER A STIPULATION CANNOT BE INTERPRETED AS
INDICATIVE OF WHAT WOULD HAVE HAPPENED IF THE STATE MADE STIPULATION A
RIGHT.  THE TEXAS COURT OF CRIMINAL APPEALS APPROVED A STIPULATION
PROCEDURE FOR FELONY CASES IN PITCOCK V. STATE, 367 S.W.2D 864 (1963),
ON THE CONVINCING GROUND THAT, BECAUSE THE RECIDIVIST STATUTES IN
FELONY CASES PROVIDED FOR AUTOMATIC SENTENCING, A STIPULATION RESOLVED
ALL ISSUES FOR WHICH THE PRIOR CONVICTIONS WERE RELEVANT.  AS THE COURT
PUT IT:  "TO ALLOW ITS INTRODUCTION, AFTER SUCH STIPULATION, RESOLVES
NO ISSUE AND MAY RESULT IN PREJUDICE TO THE ACCUSED."  367 S.W.2D, AT
865.  HOWEVER, TWO LATER CASES HELD THAT REFUSAL BY THE PROSECUTOR TO
ACCEPT A STIPULATION, AND THE INTRODUCTION OF EVIDENCE TO THE JURY OF
PRIOR CONVICTIONS OVER AN OFFER OF STIPULATION, WAS NOT REVERSIBLE
ERROR.  SEE SIMS V. STATE, 388 S.W.2D 714 (1965); ROSS V. STATE, 401
S.W.2D 844 (1966).  THUS, THE TEXAS COURTS REDUCED THE STIPULATION
PROCEDURE TO AN ADMONITION TO THE PROSECUTOR, AND ALLOWED REFUSAL OF
THE STIPULATION EVEN THOUGH IN FELONY CASES THE ONLY CONCEIVABLE REASON
THE PROSECUTOR COULD HAVE FOR REFUSING WAS TO HAVE THE BENEFIT OF THE
PREJUDICIAL IMPACT OF PRESENTING PRIOR CONVICTIONS TO THE JURY. 

BECAUSE THE STIPULATION PROCEDURE HAD BECOME MERELY A MATTER OF
PROSECUTORIAL DISCRETION, THE PETITIONERS IN NOS. 69 AND 70 CANNOT BE
SAID TO HAVE WAIVED ANY RIGHT TO STIPULATE THEIR PRIOR CONVICTIONS, AND
IT SEEMS TO ME THAT, IN THE ABSENCE OF A STIPULATION RIGHT, THEY MUST
BE REGARDED IN THE SAME LIGHT AS THE PETITIONER IN NO. 68, WHOSE OFFER
OF STIPULATION WAS REFUSED.  IF A DEFENDANT'S OFFER OF STIPULATION
REMOVES ANY LEGITIMATE INTEREST THE STATE MIGHT OTHERWISE HAVE IN
PRESENTING PRIOR CONVICTIONS TO THE JURY FOR RECIDIVIST PURPOSES, AND
MAKES THE INTRODUCTION INCONSISTENT WITH DUE PROCESS, THEN IT SEEMS TO
ME THAT THE PROTECTION OF THE DUE PROCESS CLAUSE SHOULD NOT BE LIMITED
ACCORDING TO WHETHER A DEFENDANT ACTUALLY EXPLORED THE CHANCE THAT A
PROSECUTOR MIGHT ACCEPT AN OFFER OF STIPULATION.  SINCE A STIPULATION
PROCEDURE WOULD COMPLETELY EFFECTUATE THE MINIMAL STATE INTEREST IN
HAVING FACTS FOUND UNDER ITS RECIDIVIST STATUTES WITHOUT THE
INCONVENIENCE OF A TWO-PART TRIAL, WHILE AT THE SAME TIME OFFERING A
DEFENDANT THE CHANCE TO PREVENT THE POSSIBILITY OF PREJUDICE, IT SEEMS
TO ME THAT DUE PROCESS REQUIRED THIS SAFEGUARD. 

IF THE ADMISSION OF PRIOR-CONVICTIONS EVIDENCE SOLELY FOR THE PURPOSE
OF ENHANCING PUNISHMENT IN THE EVENT A DEFENDANT IS FOUND GUILTY
VIOLATES DUE PROCESS WHEN THE DEFENDANT IS NOT GIVEN THE RIGHT OF
CONCEDING THE PRIOR-CONVICTIONS EVIDENCE TO PREVENT ITS ADMISSION,
PETITIONERS' CONVICTIONS IN NOS. 68 AND 69 MUST BE REVERSED.  NO. 70,
HOWEVER, RAISES THE QUESTION OF WHETHER A DECISION THAT THE OLD TEXAS
PROCEDURE VIOLATES DUE PROCESS SHOULD BE RETOACTIVELY APPLIED TO
CONVICTIONS WHICH ARE FINAL BUT WHICH ARE COLLATERALLY ATTACKED IN THE
FEDERAL COURTS BY HABEAS CORPUS.  CONSIDERATIONS OF FUNDAMENTAL
FAIRNESS HAVE LED TO THE OPENING OF FINAL JUDGMENTS IN CRIMINAL CASES
WHEN IT HAS APPEARED THAT A CONVICTION WAS ACHIEVED IN VIOLATION OF
BASIC CONSTITUTIONAL STANDARDS.  THUS, IN THE DECISIONS WHICH HAVE BEEN
APPLIED RETROACTIVELY, GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963);
DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963); GRIFFIN V. ILLINOIS, 351
U.S. 12 (1956); AND JACKSON V. DENNO, 378 U.S. 368 (1964), THE COURT
CONCLUDED THAT THE CONSTITUTIONAL ERROR PERCEIVED UNDERMINED "THE VERY
INTEGRITY OF THE FACT-FINDING PROCESS,"  LINKLETTER V. WALKER, 381 U.S.
618, 639 (1965) AND THE FUNDAMENTAL FAIRNESS OF THE RESULTING
CONVICTION.  ON THE OTHER HAND, OUR DECISIONS IN LINKLETTER AND TEHAN
V. SHOTT, 382 U.S. 406 (1966), DEMONSTRATE THAT PRACTICES FOUND TO
VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT NEED NOT
NECESSARILY BE APPLIED TO FINAL CONVICTIONS.   THE FACTORS ADVERTED TO
IN THOSE CASES FOR DETERMINING WHETHER A CONSTITUTIONAL DECISION SHOULD
BE APPLIED TO FINAL CASES WERE THE STATE'S RELIANCE ON THE CONDUCT
NEWLY FOUND UNCONSTITUTIONAL, WHETHER THE PURPOSE OF THE NEW RULE WOULD
BE SERVED BY FULLY RETROACTIVE EFFECT, AND THE EFFECT OF RETROACTIVITY
ON THE ADMINISTRATION OF JUSTICE. 

IN MY VIEW, THESE FACTORS JUSTIFY LIMITING THE APPLICATION OF THE
DECISION I PROPOSE TO NONFINAL CONVICTIONS.  TEXAS CAME TO RELY ON THE
CONSTITUTIONALITY OF THE PROCEDURE INVOLVED IN THESE CASES BY THIS
COURT'S CONSISTENT FAILURE TO REVIEW THE PRACTICE UNTIL THE GRANT OF
CERTIORARI IN THESE CASES.  MOREOVER, THERE CAN BE NO DOUBT BUT THAT
APPLICATION OF THIS RULE TO FINAL CONVICTIONS WOULD SERIOUSLY DISRUPT
THE ADMINISTRATION OF CRIMINAL LAW IN TEXAS AS WELL AS THE OTHER STATES
WHICH HAVE EMPLOYED A SIMILAR PROCEDURE IN RECIDIVIST CASES.  CF.
JOHNSON V. NEW JERSEY, 384 U.S. 719 (1966).  THUS, THE QUESTION BECOMES
WHETHER THE PROCEDURE WHICH I WOULD HOLD UNCONSTITUTIONAL INFECTED
EVERY PROCEEDING OF WHICH IT WAS A PART WITH THE CLEAR DANGER OF
CONVICTING THE INNOCENT.  SEE TEHAN V. SHOTT, SUPRA.  IT SEEMS TO ME
THAT THE PREJUDICIAL IMPACT OF THE TEXAS PROCEDURE IS NOT SO GREAT AS
TO JUSTIFY APPLICATION TO FINAL CASES. 

IN ALL THE CASES WHERE THE CONSTITUTIONAL DOCTRINE HAS BEEN
RETROACTIVELY APPLIED, THE JUDGMENT WAS MADE THAT THE PROCEDURE FOUND
ERRONEOUS WENT TO THE HEART OF THE FAIRNESS OF THE CONVICTION AND
RAISED THE DANGER OF CONVICTING THE INNOCENT.  THUS, IN GIDEON AND
DOUGLAS, THE COURT CONCLUDED THAT FAILURE OF AN INDIGENT DEFENDANT TO
BE REPRESENTED BY COUNSEL AT TRIAL AND ON APPEAL NEGATED THE
POSSIBILITY OF A FAIR ADVERSARY PROCEEDING.  SIMILARLY, THE RULE OF
GRIFFIN V. ILLINOIS WAS RETROACTIVELY APPLIED BECAUSE FORCING AN
INDIGENT TO FORGO A MEANINGFUL APPEAL BECAUSE HE COULD NOT PAY FOR A
TRANSCRIPT MEANT THAT THE AVAILABILITY OF A BASIC PART OF THE STATE'S
SYSTEM FOR DETERMINING GUILT OR INNOCENCE WAS CONDITIONED ON FINANCIAL
RESOURCES.  THIS PROCEDURE WAS AN OBVIOUS AND FUNDAMENTAL DENIAL OF
FAIRNESS IN THE PROCESS LEADING TO CONVICTION.  IN THE FINAL AREA WHERE
NEW RULINGS HAVE BEEN RETROACTIVELY APPLIED, JACKSON V. DENNO, THE
PREJUDICE TO THE DEFENDANT WAS THAT HE WAS NOT ASSURED OF A FAIR
PROCEDURE IN DETERMINING THE VOLUNTARINESS OF HIS CONFESSION, AND,
MOREOVER, THAT A JURY MIGHT TAKE INTO ACCOUNT A CONFESSION WHICH IT
BELIEVED TO BE COERCED IN DETERMINING THE DEFENDANT'S GUILT. 
OBVIOUSLY, THE PREJUDICE WHICH RESULTS FROM THE JURY'S LEARNING OF A
CONFESSION WHICH IS OBTAINED UNCONSTITUTIONALLY GOES DIRECTLY TO THE
HEART OF THE FINDING OF GUILT; AND BECAUSE ONE REASON THE CONSTITUTION
HAS BEEN HELD TO OUTLAW INVOLUNTARY CONFESSIONS IS THEIR UNRELIABILITY,
BROWN V. MISSISSIPPI, 297 U.S. 278 (1936)(FOR OTHER REASONS SEE, E.G.,
ROGERS V. RICHMOND, 365 U.S. 534 (1961); CULOMBE V. CONNECTICUT, 367
U.S. 568 (1961)), THE PROCEDURE HELD UNCONSTITUTIONAL IN JACKSON
INVOLVED A DANGER OF CONVICTING THE INNOCENT.    IN CONTRAST TO THE
UNCONSTITUTIONAL PROCEDURES INVOLVED IN THE CASES DISCUSSED ABOVE, THE
ADMISSION OF PRIOR-CONVICTIONS EVIDENCE IN CONNECTION WITH A RECIDIVIST
STATUTE DOES NOT SEEM TO ME TO JUSTIFY REVERSAL OF FINAL CONVICTIONS. 
THE FACT THAT PRIOR-CONVICTIONS EVIDENCE HAS BEEN TRADITIONALLY
ADMITTED WHEN RELATED TO GUILT OR INNOCENCE SUGGESTS THAT ITS PREJUDICE
HAS NOT BEEN THOUGHT SO GREAT AS TO UNDERMINE "THE VERY INTEGRITY OF
THE FACT-FINDING PROCESS" AND TO INVOLVE A "CLEAR DANGER OF CONVICTING
THE INNOCENT."  SEE LINKLETTER V. WALKER, 381 U.S., AT 639; TEHAN V.
SHOTT, 382 U.S., AT 416.  CONSEQUENTLY, I WOULD NOT APPLY A DECISION IN
LINE WITH THIS DISSENT TO FINAL CONVICTIONS, SUCH AS NO. 70, A HABEAS
CORPUS PROCEEDING. 

THE DECISION I PROPOSE IS CONSISTENT WITH A LARGE BODY OF JUDICIAL
THOUGHT.  TWO UNITED STATES COURTS OF APPEALS HAVE ADOPTED THE VIEW
THAT RECIDIVIST PROCEDURES WHICH AUTHORIZE ADMISSION OF PRIOR
CONVICTIONS EVIDENCE BEFORE THE JURY DETERMINES THAT THE DEFENDANT IS
GUILTY VIOLATE DUE PROCESS.  IN LANE V. WARDEN, 320 F.2D 179 (C.A. 4TH
CIR. 1963), THE COURT REASONED THAT "IT IS PATENT THAT JURORS WOULD BE
LIKELY TO FIND A MAN GUILTY OF A NARCOTICS VIOLATIONS MORE READILY IF
AWARE THAT HE HAS HAD PRIOR ILLEGAL ASSOCIATION WITH NARCOTICS  ...  .
SUCH A PREJUDICE WOULD CLEARLY VIOLATE THE STANDARDS OF IMPARTIALITY
REQUIRED FOR A FAIR TRIAL."  320 F.2D, AT 185.  IN THE SAME VEIN, THE
THIRD CIRCUIT, IN UNITED STATES V. BANMILLER, 310 F.2D 720 (1962),
REASONED THAT A PROCEDURE LIKE THE ONE INVOLVED IN THE THREE CASES AT
BAR WOULD CAUSE THE JURY TO HAVE IN MIND THE DEFENDANT'S PREVIOUS
CONVICTIONS IN DETERMINING HIS GUILT OF THE CRIME CURRENTLY CHARGED. 
BOTH THESE COURTS, IN FACT, WENT FARTHER THAN I WOULD, IN THAT THEY
APPLIED THEIR DECISIONS TO FINAL CONVICTIONS.  IN ENGLAND, THE
PREJUDICE WHICH RESULTS FROM PROOF OF PRIOR CRIMES BEFORE A FINDING OF
GUILT HAS BEEN RECOGNIZED FOR MORE THAN A CENTURY, AND THE RULE HAS
BEEN THAT A FINDING AS TO PRIOR CRIMES IS MADE IN A SEPARATE HEARING
AFTER THE FINDING OF GUILT.  (FN10) 

THE MAJORITY OF STATES HAVE ADOPTED PROCEDURES WHICH CURE THE
PREJUDICE INHERENT IN THE PROCEDURE IN THE CASES AT BAR.  IN ALL, SOME
31 STATES HAVE RECIDIVIST PROCEDURES WHICH POSTPONE THE INTRODUCTION OF
PRIOR CONVICTIONS UNTIL AFTER THE JURY HAS FOUND THE DEFENDANT GUILTY
OF THE CRIME CURRENTLY CHARGED.  (FN11)  AND AT LEAST THREE OTHERS HAVE
SUBSTANTIALLY MITIGATED THE PREJUDICE OF THE SINGLE-STAGE RECIDIVIST
PROCEDURE BY AFFORDING THE DEFENDANT THE RIGHT TO STIPULATE TO HIS
PRIOR CRIMES TO PREVENT THEIR INTRODUCTION AT THE TRIAL.  (FN12)  THUS,
ONLY 16 STATES STILL MAINTAIN THE NEEDLESSLY PREJUDICIAL PROCEDURE
EXEMPLIFIED IN THESE THREE CASES.  THE DECISION I PROPOSE WOULD REQUIRE
ONLY A SMALL NUMBER OF STATES TO MAKE A RELATIVELY MINOR ADJUSTMENT IN
THEIR CRIMINAL PROCEDURE TO AVOID THE MANIFEST UNFAIRNESS AND PREJUDICE
WHICH HAVE ALREADY BEEN ELIMINATED IN ENGLAND AND IN 34 OF THE UNITED
STATES. 

I WOULD REVERSE THE CONVICTIONS IN NOS. 68 AND 69 AND REMAND FOR A
NEW TRIAL.  IN NO. 70, I WOULD AFFIRM THIS FINAL CONVICTION. 

FN1  SEE GENERALLY NOTE, RECIDIVIST PROCEDURES, 40 N.Y.U.L. REV. 332
(1965). 

FN2  TEXAS CODE CRIM. PROC. ART. 36.01, EFFECTIVE JANUARY 1, 1966. 
THE NEW TWO-STAGE PROCEDURE DOES NOT APPLY IN CAPITAL CASES, THE REASON
FOR THE DISTINCTION APPARENTLY BEING BECAUSE IN CAPITAL CASES THE JURY
HAS A CHOICE OF PUNISHMENT UNDER THE APPLICABLE RECIDIVIST STATUTE. 
THE VALIDITY OF THIS DISTINCTION WILL BE DISCUSSED BELOW. 

FN3  PROFESSOR MCCORMICK STATES: 

"THE RULE IS THAT THE PROSECUTION MAY NOT INTRODUCE EVIDENCE OF OTHER
CRIMINAL ACTS OF THE ACCUSED UNLESS THE EVIDENCE IS SUBSTANTIALLY
RELEVANT FOR SOME OTHER PURPOSE THAN TO SHOW A PROBABILITY THAT HE
COMMITTED THE CRIME ON TRIAL BECAUSE HE IS A MAN OF CRIMINAL
CHARACTER."  MCCORMICK, EVIDENCE SEC 157 (1954 ED.). 

DEAN WIGMORE AGREES WITH THIS STATEMENT OF THE GENERAL RULE OF
EXCLUSION, 1 WIGMORE, EVIDENCE SECS 193-194 (3D ED. 1940).  AS WIGMORE
POINTS OUT, EVIDENCE OF PRIOR CRIMES IS OBJECTIONABLE, NOT BECAUSE IT
IS NOT SOMEWHAT PROBATIVE, BUT BECAUSE THE JURY IS LIKELY TO GIVE IT
MORE WEIGHT THAN IT DESERVES AND MIGHT DECIDE THAT THE DEFENDANT
DESERVES TO BE PUNISHED BECAUSE OF THE PAST CRIME WITHOUT REGARD TO
WHETHER HE IS GUILTY OF THE CRIME CURRENTLY CHARGED. 

FN4  SEE, E.G., MARSHALL V. UNITED STATES, 360 U.S. 310 (1959);
MICHELSON V. UNITED STATES, 335 U.S. 469 (1948); BOYD V. UNITED STATES,
142 U.S. 450 (1892). 

IN MICHELSON, THE COURT STATED: 

"COURTS THAT FOLLOW THE COMMON-LAW TRADITION ALMOST UNANIMOUSLY HAVE
COME TO DISALLOW RESORT BY THE PROSECUTION TO ANY KIND OF EVIDENCE OF A
DEFENDANT'S EVIL CHARACTER TO ESTABLISH A PROBABILITY OF HIS GUILT. 
NOT THAT THE LAW INVESTS THE DEFENDANT WITH A PRESUMPTION OF GOOD
CHARACTER, GREER V. UNITED STATES, 245 U.S. 559, BUT IT SIMPLY CLOSES
THE WHOLE MATTER OF CHARACTER, DISPOSITION AND REPUTATION ON THE
PROSECUTION'S CASE-IN-CHIEF.  THE STATE MAY NOT SHOW DEFENDANT'S PRIOR
TROUBLE WITH THE LAW, SPECIFIC CRIMINAL ACTS, OR ILL NAME AMONG HIS
NEIGHBORS, EVEN THOUGH SUCH FACTS MIGHT LOGICALLY BE PERSUASIVE THAT HE
IS BY PROPENSITY A PROBABLE PERPETRATOR OF THE CRIME.  THE INQUIRY IS
NOT REJECTED BECAUSE CHARACTER IS IRRELEVANT; ON THE CONTRARY, IT IS
SAID TO WEIGH TOO MUCH WITH THE JURY AND TO SO OVERPERSUADE THEM AS TO
PREJUDGE ONE WITH A BAD GENERAL RECORD AND DENY HIM A FAIR OPPORTUNITY
TO DEFEND AGAINST A PARTICULAR CHARGE.  THE OVERRIDING POLICY OF
EXCLUDING SUCH EVIDENCE, DESPITE ITS ADMITTED PROBATIVE VALUE, IS THE
PRACTICAL EXPERIENCE THAT ITS DISALLOWANCE TENDS TO PREVENT CONFUSION
OF ISSUES, UNFAIR SURPRISE AND UNDUE PREJUDICE."  335 U.S., AT 475
476. 

IN MARSHALL, THE COURT REVERSED A CONVICTION WHERE IT WAS SHOWN THAT
NEWSPAPER ACCOUNTS OF THE DEFENDANT'S PRIOR CONVICTIONS HAD BEEN SEEN
BY A SUBSTANTIAL NUMBER OF JURORS.  THE COURT STATED: 

"  ...  WE HAVE HERE THE EXPOSURE OF JURORS TO INFORMATION OF A
CHARACTER WHICH THE TRIAL JUDGE RULED WAS SO PREJUDICIAL IT COULD NOT
BE DIRECTLY OFFERED AS EVIDENCE.  THE PREJUDICE TO THE DEFENDANT IS
ALMOST CERTAIN TO BE AS GREAT WHEN THAT EVIDENCE REACHES THE JURY
THROUGH NEWS ACCOUNTS AS WHEN IT IS A PART OF THE PROSECUTION'S
EVIDENCE."  360 U.S., AT 312-313. 

IN BOYD, THE DEFENDANTS WERE CHARGED WITH MURDER FOLLOWING AN ATTEMPT
TO ROB, AND THE PROSECUTION INTRODUCED EVIDENCE THAT THE DEFENDANTS HAD
COMMITTED OTHER ROBBERIES BEFORE THE ONE INVOLVED IN THE CRIME
CHARGED.  THE COURT, IN AN OPINION BY THE FIRST MR. JUSTICE HARLAN,
HELD THE EVIDENCE OF OTHER CRIMES INADMISSIBLE: 

"  ...  THOSE ROBBERIES MAY HAVE BEEN COMMITTED BY THE DEFENDANTS IN
MARCH, AND YET THEY MAY HAVE BEEN INNOCENT OF THE MURDER OF DANSBY IN
APRIL.  PROOF OF THEM ONLY TENDED TO PREJUDICE THE DEFENDANTS WITH THE
JURORS, TO DRAW THEIR MINDS AWAY FROM THE REAL ISSUE, AND TO PRODUCE
THE IMPRESSION THAT THEY WERE WRETCHES WHOSE LIVES WERE OF NO VALUE TO
THE COMMUNITY, AND WHO WERE NOT ENTITLED TO THE FULL BENEFIT OF THE
RULES PRESCRIBED BY LAW FOR THE TRIAL OF HUMAN BEINGS CHARGED WITH
CRIME INVOLVING THE PUNISHMENT OF DEATH."  142 U.S., AT 458. 

FN5  SEE, E.G., LOVELY V. UNITED STATES, 169 F.2D 386, 389 (C.A. 4TH
CIR. 1948):  "THE RULE WHICH THUS FORBIDS THE INTRODUCTION OF EVIDENCE
OF OTHER OFFENSES HAVING NO REASONABLE TENDENCY TO PROVE THE CRIME
CHARGED, EXCEPT IN SO FAR AS THEY MAY ESTABLISH A CRIMINAL TENDENCY ON
THE PART OF THE ACCUSED, IS NOT A MERE TECHNICAL RULE OF LAW.  IT
ARISES OUT OF THE FUNDAMENTAL DEMAND FOR JUSTICE AND FAIRNESS WHICH
LIES AT THE BASIS OF OUR JURISPRUDENCE.  IF SUCH EVIDENCE WERE ALLOWED,
NOT ONLY WOULD THE TIME OF COURTS BE WASTED IN THE TRIAL OF COLLATERAL
ISSUES, BUT PERSONS ACCUSED OF CRIME WOULD BE GREATLY PREJUDICED BEFORE
JURIES AND WOULD BE OTHERWISE EMBARRASSED IN PRESENTING THEIR DEFENSES
ON THE ISSUES REALLY ON TRIAL." 

RAILTON V. UNITED STATES, 127 F.27 691, 693 (C.A. 5TH CIR. 1942): 

"  ...  IT IS LOGICAL TO CONCLUDE, AND VERY APT TO BE CONCLUDED, THAT
BECAUSE A MAN WAS DISHONEST ONCE HE WILL STEAL AGAIN.  IT IS CERTAINLY
'MORE PROBABLE' THAT A CROOKED OFFICIAL DID STEAL THAN IF HE WERE AN
UPRIGHT ONE.  YET OUR LAW FORBIDS THESE VERY PREMISES.  IT CANNOT BE
SHOWN THAT THE ACCUSED HAS COMMITTED OTHER SIMILAR CRIMES TO SHOW THAT
IT IS PROBABLE HE COMMITTED THE ONE CHARGED." 

CF. ALSO TEDESCO V. UNITED STATES, 118 F.2D 737 (C.A. 9TH CIR. 1941);
SWANN V. UNITED STATES, 195 F.2D 689 (C.A. 4TH CIR. 1952); UNITED
STATES V. JACANGELO, 281 F.2D 574 (C.A. 3D CIR. 1960). 

FN6  TEXAS RECOGNIZES THIS GENERAL RULE, SEAY V. STATE, 395 S.W.2D
40.  OTHER TYPICAL DECISIONS ARE PEOPLE V. MOLINEUX, 168 N.Y. 264, 61
N.E. 286 (1901); STATE V. SCOTT, 111 UTAH 9, 175 P.2D 1016 (1947).  SEE
ALSO STATE V. MYRICK, 181 KAN. 1056, 317 P.2D 485 (1957); SCARBROUGH V.
STATE, 204 MISS.  487, 37 SO. 2D 748 (1948). 

FN7  SEE GENERALLY EXCEPTIONS SET OUT IN MCCORMICK, EVIDENCE SEC
157. 

FN8  SEE, E.G., NOTE, OTHER CRIMES EVIDENCE AT TRIAL:  OF BALANCING
AND OTHER MATTERS, 70 YALE L.J. 763 (1961). 

FN9  SEE STEBBING, A MODERN INTRODUCTION TO LOGIC 88 (6TH ED. 1948). 

FN10  COINAGE OFFENCES ACT, 1861, 24 & 25 VICT., C. 99; ACT OF 6 & 7
WILL.  4, C. 111; REG. V. SHUTTLEWORTH, 3 CAR.  & K. 375. 

FN11  THE STATES WHICH HAVE ADOPTED A ROCEDURE EITHER BY LEGISLATION
OR JUDICIAL DECISION WHICH SEPARATES THE DETERMINATION OF PRIOR
CONVICTIONS FROM THE DETERMINATION OF GUILT OF THE CRIME CURRENTLY
CHARGED ARE:  ALASKA, ALASKA STAT. SEC 12.55.060 (1962); ARKANSAS,
MILLER V. STATE, 239 ARK. 836, 394 S.W.2D 601 (1965); COLORADO, HEINZE
V. PEOPLE, 127 COLO. 54, 253 P.2D 596 (1953); CONNECTICUT, STATE V.
FERRONE, 96 CONN. 160, 113 A. 452 (1921); DELAWARE, DEL. CODE ANN. TIT.
11, SEC. 3912(B) (SUPP. 1964); FLORIDA, FLA. STAT. ANN. SEC. 775.11
(1965), SHARGAA V. STATE, 102 SO. 2D 814 (1958); IDAHO, STATE V.
JOHNSON, 86 IDAHO 51, 383 P.2D 326 (1963); ILLINOIS, ILL. REV. STAT. C.
38, SECS 603.1-603.9 (1963), ILL. REV. STAT. C. 38, SEC 22-43 (1965);
KANSAS, KAN. GEN. STAT. ANN. SEC 21-107A (1949); LOUISIANA, LA. REV.
STAT.  ANN. SEC. 15:529.1D (SUPP. 1962); MARYLAND, MD. RULE OF PROC.
713; MICHIGAN, MICH. STAT. ANN.  SEC 28.1085 (1954); MINNESOTA, MINN.
STAT. ANN. SEC 609.16; MISSOURI, MO. REV. STAT. SEC 556.280 (1959);
NEBRASKA, NEB. REV. STAT. SEC. 29-2221 (1964); NEW YORK, N.Y. PEN.  LAW
SEC.  1943; NEW MEXICO, JOHNSON V. COX, 72 N.M. 55, 380 P.2D 199
(1963); NORTH DAKOTA, N.D. CENT.  CODE SEC. 12-06-23 (1960); OHIO, OHIO
REV. CODE ANN. SEC. 2961.13 (1954); OKLAHOMA, OKLA. STAT.  ANN. TIT.
22, SEC 860 (SUPP. 1964), HARRIS V. STATE, 369 P.2D 187 (1962); OREGON,
ORE.  REV.  STAT. SEC 168.065 (1961); PENNSYLVANIA, PA. STAT. ANN. TIT.
18, SEC 5108 (1963); SOUTH DAKOTA, S.D. CODE SEC. 13.0611(3) (1939);
TENNESSEE, TENN. CODE ANN. SEC. 40-2801 (1955), HARRISON V. STATE, -
TENN. - , 394 S.W.2D 713 (1965); TEXAS, TEXAS CODE CRIM. PROC. ART.
36.01 (1966); UTAH, UTAH CODE ANN. SEC 76-1-19 (1953), STATE V.
STEWART, 110 UTAH 203, 171 P.2D 383 (1946); VIRGINIA, VA. CODE ANN. SEC
53-296 (1958); WASHINGTON, STATE V. KIRKPATRICK, 181 WASH. 313, 43 P.2D
44 (1935); WEST VIRGINIA, W.VA. CODE ANN. SEC 6131 (1961).  IN ADDITION
TO THESE 29 STATES, TWO STATES TAKE PRIOR CONVICTIONS INTO ACCOUNT IN
THE DETERMINATION OF WHEN A CONVICT IS ELIGIBLE FOR PAROLE, AND ENTRUST
THE FACT-FINDING DETERMINATION TO PAROLE BOARDS: MISSISSIPPI, MISS. 
CODE ANN. SEC 4004-03 (SUPP. 1964), AS AMENDED, MISS.  LAWS 1964, C.
366; NEW JERSEY, N.J. STAT. ANN. SEC. 30:4-123.12 (1964), N.J. REV.
STAT. SEC. 2A:85-13 (SUPP. 1966).  THUS, 31 STATES IN ALL HAVE ADOPTED
WHOLLY NONPREJUDICIAL PROCEDURES IN CONNECTION WITH THEIR RECIDIVIST
STATUTES. 

FN12  THE THREE STATES WHICH HAVE ADOPTED A STIPULATION PROCEDURE
ARE:  ARIZONA, ARIZ. RULE CRIM. PROC. 180, ARIZ. CODE ANN. SEC 44-1004
(1939), MONTGOMERY V. EYMAN, 96 ARIZ. 55, 391 P.2D 915 (1964);
CALIFORNIA, CAL. PENAL CODE SEC 1025, PEOPLE V. HOBBS, 37 CAL. APP. 2D
8, 98 P.2D 775 (1940); AND WISCONSIN, STATE V. MEYER, 258 WIS. 326, 46
N.W.2D 341 (1951). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

I JOIN THE OPINION OF THE CHIEF JUSTICE INSOFAR AS THAT OPINION WOULD
REVERSE IN NOS. 68 AND 69.  I WOULD, HOWEVER, ALSO REVERSE IN NO. 70. 
IT SEEMS TO ME THAT THE CONSTITUTIONAL ERROR HERE INVOLVED UNDERMINED
"THE VERY INTEGRITY OF THE FACT-FINDING PROCESS,"  LINKLETTER V.
WALKER, 381 U.S. 618, 639, AND I WOULD THEREFORE APPLY THE RULE
RETROACTIVELY.  GIDEON V. WAINWRIGHT, 372 U.S. 335; DOUGLAS V.
CALIFORNIA, 372 U.S. 353; GRIFFIN V. ILLINOIS, 351 U.S. 12; JACKSON V.
DENNO, 378 U.S. 368. 
..END :















KEYISHIAN V. BOARD OF REGENTS 385 U.S. 589 


NO. 105.  ARGUED NOVEMBER 17, 1966.  - DECIDED JANUARY 23, 1967.  - 255
F. SUPP. 981, REVERSED AND REMANDED. 


APPELLANTS, FACULTY MEMBERS OF THE STATE UNIVERSITY OF NEW YORK AND A
NONFACULTY EMPLOYEE, BROUGHT THIS ACTION FOR DECLARATORY AND INJUNCTIVE
RELIEF, CLAIMING THAT NEW YORK'S TEACHER LOYALTY LAWS AND REGULATIONS
ARE UNCONSTITUTIONAL.  THEIR CONTINUED EMPLOYMENT HAD BEEN TERMINATED
OR WAS THREATENED WHEN EACH APPELLANT FACULTY MEMBER REFUSED TO COMPLY
WITH A REQUIREMENT OF THE UNIVERSITY TRUSTEES THAT HE CERTIFY THAT HE
WAS NOT A COMMUNIST AND THAT IF HE HAD EVER BEEN ONE HE HAD SO ADVISED
THE UNIVERSITY PRESIDENT; AND THE NONFACULTY EMPLOYEE REFUSED TO STATE
UNDER OATH WHETHER HE HAD ADVOCATED OR BEEN A MEMBER OF A GROUP WHICH
ADVOCATED FORCEFUL OVERTHROW OF THE GOVERNMENT.  UNDER SEC 3021 OF NEW
YORK'S EDUCATION LAW "TREASONABLE OR SEDITIOUS" UTTERANCES OR ACTS ARE
GROUNDS FOR DISMISSAL FROM THE PUBLIC SCHOOL SYSTEM, AS WELL AS UNDER
SEC 105, SUBD. 3, OF THE CIVIL SERVICE LAW.  OTHER PROVISIONS OF SEC.
105, OF THE CIVIL SERVICE LAW DISQUALIFY FROM THE CIVIL SERVICE OR
EMPLOYMENT IN THE EDUCATIONAL SYSTEM ANY PERSON ADVOCATING OR INVOLVED
WITH THE DISTRIBUTION OF WRITTEN MATERIAL WHICH ADVOCATES THE FORCEFUL
OVERTHROW OF THE GOVERNMENT.  SECTION 3021 DOES NOT DEFINE "TREASONABLE
OR SEDITIOUS."  SECTION 105, SUBD. 3, PROVIDES THAT "TREASONABLE WORD
OR ACT" SHALL MEAN "TREASON" AS DEFINED IN THE PENAL LAW AND "SEDITIOUS
WORD OR ACT" SHALL MEAN "CRIMINAL ANARCHY" AS THEREIN DEFINED.  SECTION
3022 (THE FEINBERG LAW) OF THE EDUCATION LAW REQUIRES THE STATE BOARD
OF REGENTS TO ISSUE REGULATIONS FOR THE DISQUALIFICATION OR REMOVAL ON
LOYALTY GROUNDS OF FACULTY OR OTHER PERSONNEL IN THE STATE EDUCATIONAL
SYSTEM, TO MAKE A LIST OF "SUBVERSIVE" ORGANIZATIONS, AND TO PROVIDE
THAT MEMBERSHIP THEREIN CONSTITUTES PRIMA FACIE EVIDENCE OF
DISQUALIFICATION FOR EMPLOYMENT.  THE BOARD LISTED THE NATIONAL AND
STATE COMMUNIST PARTIES AS "SUBVERSIVE ORGANIZATIONS" UNDER THE LAW,
BUT SHORTLY BEFORE THE TRIAL OF THIS CASE THE UNIVERSITY TRUSTEES'
CERTIFICATE REQUIREMENT WAS RESCINDED AND IT WAS ANNOUNCED THAT NO
PERSON WOULD BE INELIGIBLE FOR EMPLOYMENT "SOLELY" BECAUSE HE REFUSED
TO SIGN THE CERTIFICATE, AND THAT SECS 3021 AND 3022 OF THE EDUCATION
LAW AND SEC 105 OF THE CIVIL SERVICE LAW CONSTITUTED PART OF THE
EMPLOYMENT CONTRACT.  A THREE-JUDGE DISTRICT COURT SUSTAINED THE
CONSTITUTIONALITY OF THESE PROVISIONS AGAINST APPELLANTS' CHALLENGES OF
VAGUENESS AND OVERBREADTH AND DISMISSED THE COMPLAINT.  HELD: 

1.  ADLER V. BOARD OF EDUCATION, 342 U.S. 485, IN WHICH THIS COURT
UPHELD SOME ASPECTS OF THE NEW YORK TEACHER LOYALTY PLAN BEFORE ITS
EXTENSION TO STATE INSTITUTIONS OF HIGHER LEARNING, IS NOT CONTROLLING,
THE VAGUENESS ISSUE PRESENTED HERE INVOLVING SEC 3021 AND SEC 105 NOT
HAVING BEEN DECIDED IN ADLER, AND THE VALIDITY OF THE SUBVERSIVE
ORGANIZATION MEMBERSHIP PROVISION OF SEC 3022 HAVING BEEN UPHELD FOR
REASONS SUBSEQUENTLY REJECTED BY THIS COURT.  PP. 593-595. 

2.  THE RESCISSION OF THE CERTIFICATE REQUIREMENT DOES NOT MOOT THIS
CASE, AS THE SUBSTANCE OF THE STATUTORY AND REGULATORY COMPLEX
CHALLENGED BY APPELLANTS REMAINS.  P. 596. 

3.  SECTION 3021 OF THE EDUCATION LAW AND SEC. 105, SUBDS. 1(A), 1(B),
AND 3, OF THE CIVIL SERVICE LAW AS IMPLEMENTED BY THE MACHINERY CREATED
PURSUANT TO SEC 3022 OF THE EDUCATION LAW, ARE UNCONSTITUTIONALLY
VAGUE, SINCE NO TEACHER CAN KNOW FROM SEC 3021 OF THE EDUCATION LAW AND
SEC 105, SUBD, 3, OF THE CIVIL SERVICE LAW WHAT CONSTITUTES THE
BOUNDARY BETWEEN "SEDITIOUS" AND NONSEDITIOUS UTTERANCES AND ACTS, AND
THE OTHER PROVISIONS MAY WELL PROHIBIT THE EMPLOYMENT OF ONE WHO
ADVOCATES DOCTRINE ABSTRACTLY WITHOUT ANY ATTEMPT TO INCITE OTHERS TO
ACTION, AND MAY BE CONSTRUED TO COVER MERE EXPRESSION OF BELIEF.  PP.
597-604. 

(A)  THESE PROVISIONS, WHICH HAVE NOT BEEN INTERPRETED BY THE NEW
YORK COURTS, CAN HAVE A STIFLING EFFECT ON THE "FREE PLAY OF THE SPIRIT
WHICH ALL TEACHERS OUGHT ESPECIALLY TO CULTIVATE AND PRACTICE" (WIEMAN
V. UPDEGRAFF, 344 U.S. 183, 195 (CONCURRING OPINION)).  PP. 601-602. 

(B)  ACADEMIC FREEDOM IS A SPECIAL CONCERN OF THE FIRST AMENDMENT,
WHICH DOES NOT TOLERATE LAWS THAT CAST A PALL OF ORTHODOXY OVER THE
CLASSROOM.  P. 603. 

(C)  THE PROLIXITY AND PROFUSION OF STATUTES, REGULATIONS, AND
ADMINISTRATIVE MACHINERY, AND MANIFOLD CROSS-REFERENCES TO INTERRELATED
ENACTMENTS AND RULES AGGRAVATE THE PROBLEM OF VAGUENESS OF WORDING.  P.
604. 

4.  THE PROVISIONS OF THE CIVIL SERVICE LAW (SEC. 105, SUBD. 1(C))
AND THE EDUCATION LAW (SEC 3022, SUBD. 2), WHICH MAKE COMMUNIST PARTY
MEMBERSHIP, AS SUCH, PRIMA FACIE EVIDENCE OF DISQUALIFICATION FOR
EMPLOYMENT IN THE PUBLIC SCHOOL SYSTEM ARE "OVERBROAD" AND THEREFORE
UNCONSTITUTIONAL.  PP. 605-610. 

(A)  CONSTITUTIONAL DOCTRINE AFTER THIS COURT'S UPHOLDING OF SEC
3022, SUBD. 2, IN ADLER HAS REJECTED ITS MAJOR PREMISE THAT PUBLIC
EMPLOYMENT MAY BE CONDITIONED UPON THE SURRENDER OF CONSTITUTIONAL
RIGHTS WHICH COULD NOT BE ABRIDGED BY DIRECT GOVERNMENT ACTION.  P.
605. 

(B)  MERE KNOWING MEMBERSHIP WITHOUT A SPECIFIC INTENT TO FURTHER THE
UNLAWFUL AIMS OF AN ORGANIZATION IS NOT A CONSTITUTIONALLY ADEQUATE
BASIS FOR IMPOSING SANCTIONS.  PP. 606-610. 

KEYISHIAN ET AL. V. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF
NEW YORK ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF NEW YORK. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS WERE MEMBERS OF THE FACULTY OF THE PRIVATELY OWNED AND
OPERATED UNIVERSITY OF BUFFALO, AND BECAME STATE EMPLOYEES WHEN THE
UNIVERSITY WAS MERGED IN 1962 INTO THE STATE UNIVERSITY OF NEW YORK, AN
INSTITUTION OF HIGHER EDUCATION OWNED AND OPERATED BY THE STATE OF NEW
YORK.  AS FACULTY MEMBERS OF THE STATE UNIVERSITY THEIR CONTINUED
EMPLOYMENT WAS CONDITIONED UPON THEIR COMPLIANCE WITH A NEW YORK PLAN,
FORMULATED PARTLY IN STATUTES AND PARTLY IN ADMINISTRATIVE REGULATIONS,
(FN1)  WHICH THE STATE UTILIZES TO PREVENT THE APPOINTMENT OR
RETENTION OF "SUBVERSIVE" PERSONS IN STATE EMPLOYMENT. 

APPELLANTS HOCHFIELD AND MAUD WERE ASSISTANT PROFESSORS OF ENGLISH,
APPELLANT KEYISHIAN AN INSTRUCTOR IN ENGLISH, AND APPELLANT GARVER, A
LECTURER IN PHILOSOPHY.  EACH OF THEM REFUSED TO SIGN, AS REGULATIONS
THEN IN EFFECT REQUIRED, A CERTIFICATE THAT HE WAS NOT A COMMUNIST, AND
THAT IF HE HAD EVER BEEN A COMMUNIST, HE HAD COMMUNICATED THAT FACT TO
THE PRESIDENT OF THE STATE UNIVERSITY OF NEW YORK.  EACH WAS NOTIFIED
THAT HIS FAILURE TO SIGN THE CERTIFICATE WOULD REQUIRE HIS DISMISSAL. 
KEYISHIAN'S ONE-YEAR-TERM CONTRACT WAS NOT RENEWED BECAUSE OF HIS
FAILURE TO SIGN THE CERTIFICATE.  HOCHFIELD AND GARVER, WHOSE CONTRACTS
STILL HAD TIME TO RUN, CONTINUE TO TEACH, BUT SUBJECT TO PROCEEDINGS
FOR THEIR DISMISSAL IF THE CONSTITUTIONALITY OF THE NEW YORK PLAN IS
SUSTAINED.  MAUD HAS VOLUNTARILY RESIGNED AND THEREFORE NO LONGER HAS
STANDING IN THIS SUIT. 

APPELLANT STARBUCK WAS A NONFACULTY LIBRARY EMPLOYEE AND PART-TIME
LECTURER IN ENGLISH.  PERSONNEL IN THAT CLASSIFICATION WERE NOT
REQUIRED TO SIGN A CERTIFICATE BUT WERE REQUIRED TO ANSWER IN WRITING
UNDER OATH THE QUESTION, "HAVE YOU EVER ADVISED OR TAUGHT OR WERE YOU
EVER A MEMBER OF ANY SOCIETY OR GROUP OF PERSONS WHICH TAUGHT OR
ADVOCATED THE DOCTRINE THAT THE GOVERNMENT OF THE UNITED STATES OR OF
ANY POLITICAL SUBDIVISIONS THEREOF SHOULD BE OVERTHROWN OR OVERTURNED
BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS?"  STARBUCK REFUSED TO ANSWER
THE QUESTION AND AS A RESULT WAS DISMISSED. 

APPELLANTS BROUGHT THIS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF,
ALLEGING THAT THE STATE PROGRAM VIOLATED THE FEDERAL CONSTITUTION IN
VARIOUS RESPECTS.  A THREE-JUDGE FEDERAL COURT HELD THAT THE PROGRAM
WAS CONSTITUTIONAL.  255 F. SUPP. 981.  (FN2)  WE NOTED PROBABLE
JURISDICTION OF APPELLANTS' APPEAL, 384 U.S. 998.  WE REVERSE. 

                                              I. 

WE CONSIDERED SOME ASPECTS OF THE CONSTITUTIONALITY OF THE NEW YORK
PLAN 15 YEARS AGO IN ADLER V. BOARD OF EDUCATION, 342 U.S. 485.  THAT
LITIGATION AROSE AFTER NEW YORK PASSED THE FEINBERG LAW WHICH ADDED SEC
3022 TO THE EDUCATION LAW.  (FN3)  THE FEINBERG LAW WAS ENACTED TO
IMPLEMENT AND ENFORCE TWO EARLIER STATUTES.  THE FIRST WAS A 1917 LAW,
NOW SEC 3021 OF THE EDUCATION LAW, UNDER WHICH "THE UTTERANCE OF ANY
TREASONABLE OR SEDITIOUS WORD OR WORDS OR THE DOING OF ANY TREASONABLE
OR SEDITIOUS ACT" IS A GROUND FOR DISMISSAL FROM THE PUBLIC SCHOOL
SYSTEM.  THE SECOND WAS A 1939 LAW WHICH WAS SEC 12-A OF THE CIVIL
SERVICE LAW WHEN ADLER WAS DECIDED AND, AS AMENDED, IS NOW SEC 105 OF
THAT LAW.  THIS LAW DISQUALIFIES FROM THE CIVIL SERVICE AND FROM
EMPLOYMENT IN THE EDUCATIONAL SYSTEM ANY PERSON WHO ADVOCATES THE
OVERTHROW OF GOVERNMENT BY FORCE, VIOLENCE, OR ANY UNLAWFUL MEANS, OR
PUBLISHES MATERIAL ADVOCATING SUCH OVERTHROW OR ORGANIZES OR JOINS ANY
SOCIETY OR GROUP OF PERSONS ADVOCATING SUCH DOCTRINE. 

THE FEINBERG LAW CHARGED THE STATE BOARD OF REGENTS WITH THE DUTY OF
PROMULGATING RULES AND REGULATIONS PROVIDING PROCEDURES FOR THE
DISQUALIFICATION OR REMOVAL OF PERSONS IN THE PUBLIC SCHOOL SYSTEM WHO
VIOLATE THE 1917 LAW OR WHO ARE INELIGIBLE FOR APPOINTMENT TO OR
RETENTION IN THE PUBLIC SCHOOL SYSTEM UNDER THE 1939 LAW.  THE BOARD OF
REGENTS WAS FURTHER DIRECTED TO MAKE A LIST, AFTER NOTICE AND HEARING,
OF "SUBVERSIVE" ORGANIZATIONS, DEFINED AS ORGANIZATIONS WHICH ADVOCATE
THE DOCTRINE OF OVERTHROW OF GOVERNMENT BY FORCE, VIOLENCE, OR ANY
UNLAWFUL MEANS.  FINALLY, THE BOARD WAS DIRECTED TO PROVIDE IN ITS
RULES AND REGULATIONS THAT MEMBERSHIP IN ANY LISTED ORGANIZATION SHOULD
CONSTITUTE PRIMA FACIE EVIDENCE OF DISQUALIFICATION FOR APPOINTMENT TO
OR RETENTION IN ANY OFFICE OR POSITION IN THE PUBLIC SCHOOLS OF THE
STATE. 

THE BOARD OF REGENTS THEREUPON PROMULGATED RULES AND REGULATIONS
CONTAINING PROCEDURES TO BE FOLLOWED BY APPOINTING AUTHORITIES TO
DISCOVER PERSONS INELIGIBLE FOR APPOINTMENT OR RETENTION UNDER THE 1939
LAW, OR BECAUSE OF VIOLATION OF THE 1917 LAW.  THE BOARD ALSO ANNOUNCED
ITS INTENTION TO LIST "SUBVERSIVE" ORGANIZATIONS AFTER REQUISITE NOTICE
AND HEARING, AND PROVIDED THAT MEMBERSHIP IN A LISTED ORGANIZATION
AFTER THE DATE OF ITS LISTING SHOULD BE REGARDED AS CONSTITUTING PRIMA
FACIE EVIDENCE OF DISQUALIFICATION, AND THAT MEMBERSHIP PRIOR TO
LISTING SHOULD BE PRESUMPTIVE EVIDENCE THAT MEMBERSHIP HAS CONTINUED,
IN THE ABSENCE OF A SHOWING THAT SUCH MEMBERSHIP WAS TERMINATED IN GOOD
FAITH.  UNDER THE REGULATIONS, AN APPOINTING OFFICIAL IS FORBIDDEN TO
MAKE AN APPOINTMENT UNTIL AFTER HE HAS FIRST INQUIRED OF AN APPLICANT'S
FORMER EMPLOYERS AND OTHER PERSONS TO ASCERTAIN WHETHER THE APPLICANT
IS DISQUALIFIED OR INELIGIBLE FOR APPOINTMENT.  IN ADDITION, AN ANNUAL
INQUIRY MUST BE MADE TO DETERMINE WHETHER AN APPOINTED EMPLOYEE HAS
CEASED TO BE QUALIFIED FOR RETENTION, AND A REPORT OF FINDINGS MUST BE
FILED. 

ADLER WAS A DECLARATORY JUDGMENT SUIT IN WHICH THE COURT HELD, IN
EFFECT, THAT THERE WAS NO CONSTITUTIONAL INFIRMITY IN FORMER SEC 12-A
OR IN THE FEINBERG LAW ON THEIR FACES AND THAT THEY WERE CAPABLE OF
CONSTITUTIONAL APPLICATION.  BUT THE CONTENTION URGED IN THIS CASE THAT
BOTH SEC 3021 AND SEC 105 ARE UNCONSTITUTIONALLY VAGUE WAS NOT HEARD OR
DECIDED.  SECTION 3021 OF THE EDUCATION LAW WAS CHALLENGED IN ADLER AS
UNCONSTITUTIONALLY VAGUE, BUT BECAUSE THE CHALLENGE HAD NOT BEEN MADE
IN THE PLEADINGS OR IN THE PROCEEDINGS IN THE LOWER COURTS, THIS COURT
REFUSED TO CONSIDER IT.  342 U.S., AT 496.  NOR WAS ANY CHALLENGE ON
GROUNDS OF VAGUENESS MADE IN ADLER AS TO SUBDIVISIONS 1(A) AND (B) OF
SEC. 105 OF THE CIVIL SERVICE LAW.  (FN4)  SUBDIVISION 3 OF SEC. 105
WAS NOT ADDED UNTIL 1958.  APPELLANTS IN THIS CASE TIMELY ASSERTED
BELOW THE UNCONSTITUTIONALITY OF ALL THESE SECTIONS ON GROUNDS OF
VAGUENESS AND THAT QUESTION IS NOW PROPERLY BEFORE US FOR DECISION. 
MOREOVER, TO THE EXTENT THAT ADLER SUSTAINED THE PROVISION OF THE
FEINBERG LAW CONSTITUTING MEMBERSHIP IN AN ORGANIZATION ADVOCATING
FORCEFUL OVERTHROW OF GOVERNMENT A GROUND FOR DISQUALIFICATION,
PERTINENT CONSTITUTIONAL DOCTRINES HAVE SINCE REJECTED THE PREMISES
UPON WHICH THAT CONCLUSION RESTED.  ADLER IS THEREFORE NOT DISPOSITIVE
OF THE CONSTITUTIONAL ISSUES WE MUST DECIDE IN THIS CASE. 

                                             II. 

A 1953 AMENDMENT EXTENDED THE APPLICATION OF THE FEINBERG LAW TO
PERSONNEL OF ANY COLLEGE OR OTHER INSTITUTION OF HIGHER EDUCATION OWNED
AND OPERATED BY THE STATE OR ITS SUBDIVISIONS.  IN THE SAME YEAR, THE
BOARD OF REGENTS, AFTER NOTICE AND HEARING, LISTED THE COMMUNIST PARTY
OF THE UNITED STATES AND OF THE STATE OF NEW YORK AS "SUBVERSIVE
ORGANIZATIONS."  IN 1956 EACH APPLICANT FOR AN APPOINTMENT OR THE
RENEWAL OF AN APPOINTMENT WAS REQUIRED TO SIGN THE SO-CALLED "FEINBERG
CERTIFICATE" DECLARING THAT HE HAD READ THE REGENTS RULES AND
UNDERSTOOD THAT THE RULES AND THE STATUTES CONSTITUTED TERMS OF
EMPLOYMENT, AND DECLARING FURTHER THAT HE WAS NOT A MEMBER OF THE
COMMUNIST PARTY, AND THAT IF HE HAD EVER BEEN A MEMBER HE HAD
COMMUNICATED THAT FACT TO THE PRESIDENT OF THE STATE UNIVERSITY.  THIS
WAS THE CERTIFICATE THAT APPELLANTS HOCHFIELD, MAUD, KEYISHIAN, AND
GARVER REFUSED TO SIGN. 

IN JUNE 1965, SHORTLY BEFORE THE TRIAL OF THIS CASE, THE FEINBERG
CERTIFICATE WAS RESCINDED AND IT WAS ANNOUNCED THAT NO PERSON THEN
EMPLOYED WOULD BE DEEMED INELIGIBLE FOR CONTINUED EMPLOYMENT "SOLELY"
BECAUSE HE REFUSED TO SIGN THE CERTIFICATE.  IN LIEU OF THE
CERTIFICATE, IT WAS PROVIDED THAT EACH APPLICANT BE INFORMED BEFORE
ASSUMING HIS DUTIES THAT THE STATUTES, SECS 3021 AND 3022 OF THE
EDUCATION LAW AND SEC 105 OF THE CIVIL SERVICE LAW, CONSTITUTED PART OF
HIS CONTRACT.  HE WAS PARTICULARLY TO BE INFORMED OF THE
DISQUALIFICATION WHICH FLOWED FROM MEMBERSHIP IN A LISTED "SUBVERSIVE"
ORGANIZATION.  THE 1965 ANNOUNCEMENT FURTHER PROVIDES:  "SHOULD ANY
QUESTION ARISE IN THE COURSE OF SUCH INQUIRY SUCH CANDIDATE MAY REQUEST
...  A PERSONAL INTERVIEW.  REFUSAL OF A CANDIDATE TO ANSWER ANY
QUESTION RELEVANT TO SUCH INQUIRY BY SUCH OFFICER SHALL BE SUFFICIENT
GROUND TO REFUSE TO MAKE OR RECOMMEND APPOINTMENT."  A BROCHURE IS ALSO
GIVEN NEW APPLICANTS.  IT OUTLINES AND EXPLAINS BRIEFLY THE LEGAL
EFFECT OF THE STATUTES AND INVITES ANY APPLICANT WHO MAY HAVE ANY
QUESTION ABOUT POSSIBLE DISQUALIFICATION TO REQUEST AN INTERVIEW.  THE
COVERING ANNOUNCEMENT CONCLUDES THAT "A PROSPECTIVE APPOINTEE WHO DOES
NOT BELIEVE HIMSELF DISQUALIFIED NEED TAKE NO AFFIRMATIVE ACTION.  NO
DISCLAIMER OATH IS REQUIRED." 

THE CHANGE IN PROCEDURE IN NO WISE MOOTS APPELLANTS' CONSTITUTIONAL
QUESTIONS RAISED IN THE CONTEXT OF THEIR REFUSAL TO SIGN THE NOW
ABANDONED FEINBERG CERTIFICATE.  THE SUBSTANCE OF THE STATUTORY AND
REGULATORY COMPLEX REMAINS AND FROM THE OUTSET APPELLANTS' BASIC CLAIM
HAS BEEN THAT THEY ARE AGGRIEVED BY ITS APPLICATION. 

     III. 

UTTERANCES OR ACTS.  THE 1958 AMENDMENT TO SEC 105 OF THE CIVIL SERVICE
LAW, NOW SUBDIVISION 3 OF THAT SECTION, ADDED SUCH UTTERANCES OR ACTS
AS A GROUND FOR REMOVAL UNDER THAT LAW ALSO.  (FN5)  THE SAME WORDING
IS USED IN BOTH STATUTES - THAT "THE UTTERANCE OF ANY TREASONABLE OR
SEDITIOUS WORD OR WORDS OR THE DOING OF ANY TREASONABLE OR SEDITIOUS
ACT OR ACTS" SHALL BE GROUND FOR REMOVAL.  BUT THERE IS A VITAL
DIFFERENCE BETWEEN THE TWO LAWS.  SECTION 3021 DOES NOT DEFINE THE
TERMS "TREASONABLE OR SEDITIOUS" AS USED IN THAT SECTION; IN CONTRAST,
SUBDIVISION 3 OF SEC 105 OF THE CIVIL SERVICE LAW PROVIDES THAT THE
TERMS "TREASONABLE WORD OR ACT" SHALL MEAN "TREASON" AS DEFINED IN THE
PENAL LAW AND THE TERMS "SEDITIOUS WORD OR ACT" SHALL MEAN "CRIMINAL
ANARCHY" AS DEFINED IN THE PENAL LAW. 

OUR EXPERIENCE UNDER THE SEDITION ACT OF 1798, 1 STAT. 596, TAUGHT US
THAT DANGERS FATAL TO FIRST AMENDMENT FREEDOMS INHERE IN THE WORD
"SEDITIOUS."  SEE NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 273
276.  AND THE WORD "TREASONABLE," IF LEFT UNDEFINED, IS NO LESS
DANGEROUSLY UNCERTAIN.  THUS IT BECOMES IMPORTANT WHETHER, DESPITE THE
OMISSION OF A SIMILAR REFERENCE TO THE PENAL LAW IN SEC 3021, THE WORDS
AS USED IN THAT SECTION ARE TO BE READ AS MEANING ONLY WHAT THEY MEAN
IN SUBDIVISION 3 OF SEC 105.  OR ARE THEY TO BE READ MORE BROADLY AND
TO CONSTITUTE UTTERANCES OR ACTS "SEDITIOUS" AND "TREASONABLE" WHICH
WOULD NOT BE SO REGARDED FOR THE PURPOSES OF SEC 105? 

EVEN ASSUMING THAT "TREASONABLE" AND "SEDITIOUS" IN SEC 3021 AND SEC
105, SUBD. 3, HAVE THE SAME MEANING, THE UNCERTAINTY IS HARDLY
REMOVED.  THE DEFINITION OF "TREASONABLE" IN THE PENAL LAW PRESENTS NO
PARTICULAR PROBLEM.  THE DIFFICULTY CENTERS UPON THE MEANING OF
"SEDITIOUS."  SUBDIVISION 3 EQUATES THE TERM "SEDITIOUS" WITH "CRIMINAL
ANARCHY" AS DEFINED IN THE PENAL LAW.  IS THE REFERENCE ONLY TO PENAL
LAW SEC 160, DEFINING CRIMINAL ANARCHY AS "THE DOCTRINE THAT ORGANIZED
GOVERNMENT SHOULD BE OVERTHROWN BY FORCE OR VIOLENCE, OR BY
ASSASSINATION OF THE EXECUTIVE HEAD OR OF ANY OF THE EXECUTIVE
OFFICIALS OF GOVERNMENT, OR BY ANY UNLAWFUL MEANS"?  BUT THAT SECTION
ENDS WITH THE SENTENCE "THE ADVOCACY OF SUCH DOCTRINE EITHER BY WORD OF
MOUTH OR WRITING IS A FELONY."  DOES THAT SENTENCE DRAW INTO SEC 105,
PENAL LAW SEC 161, PROSCRIBING "ADVOCACY OF CRIMINAL ANARCHY"?   IF SO,
THE POSSIBLE SCOPE OF "SEDITIOUS" UTTERANCES OR ACTS HAS VIRTUALLY NO
LIMIT.  FOR UNDER PENAL LAW SEC 161, ONE COMMITS THE FELONY OF
ADVOCATING CRIMINAL ANARCHY IF HE "  ...  PUBLICLY DISPLAYS ANY BOOK
...  CONTAINING OR ADVOCATING, ADVISING OR TEACHING THE DOCTRINE THAT
ORGANIZED GOVERNMENT SHOULD BE OVERTHROWN BY FORCE, VIOLENCE OR ANY
UNLAWFUL MEANS."  (FN6)  DOES THE TEACHER WHO CARRIES A COPY OF THE
COMMUNIST MANIFESTO ON A PUBLIC STREET THEREBY ADVOCATE CRIMINAL
ANARCHY?  IT IS NO ANSWER TO SAY THAT THE STATUTE WOULD NOT BE APPLIED
IN SUCH A CASE.  WE CANNOT GAINSAY THE POTENTIAL EFFECT OF THIS OBSCURE
WORDING ON "THOSE WITH A CONSCIENTIOUS AND SCRUPULOUS REGARD FOR SUCH
UNDERTAKINGS."  BAGGETT V. BULLITT, 377 U.S. 360, 374.  EVEN WERE IT
CERTAIN THAT THE DEFINITION REFERRED TO IN SEC 105 WAS SOLELY PENAL LAW
SEC 160, THE SCOPE OF SEC 105 STILL REMAINS INDEFINITE.  THE TEACHER
CANNOT KNOW THE EXTENT, IF ANY, TO WHICH A "SEDITIOUS" UTTERANCE MUST
TRANSCEND MERE STATEMENT ABOUT ABSTRACT DOCTRINE, THE EXTENT TO WHICH
IT MUST BE INTENDED TO AND TEND TO INDOCTRINATE OR INCITE TO ACTION IN
FURTHERANCE OF THE DEFINED DOCTRINE.  THE CRUCIAL CONSIDERATION IS THAT
NO TEACHER CAN KNOW JUST WHERE THE LINE IS DRAWN BETWEEN "SEDITIOUS"
AND NONSEDITIOUS UTTERANCES AND ACTS.    OTHER PROVISIONS OF SEC. 105
ALSO HAVE THE SAME DEFECT OF VAGUENESS.  SUBDIVISION 1(A) OF SEC 105
BARS EMPLOYMENT OF ANY PERSON WHO "BY WORD OF MOUTH OR WRITING WILFULLY
AND DELIBERATELY ADVOCATES, ADVISES OR TEACHES THE DOCTRINE" OF
FORCEFUL OVERTHROW OF GOVERNMENT.  THIS PROVISION IS PLAINLY
SUSCEPTIBLE OF SWEEPING AND IMPROPER APPLICATION.  IT MAY WELL PROHIBIT
THE EMPLOYMENT OF ONE WHO MERELY ADVOCATES THE DOCTRINE IN THE ABSTRACT
WITHOUT ANY ATTEMPT TO INDOCTRINATE OTHERS, OR INCITE OTHERS TO ACTION
IN FURTHERANCE OF UNLAWFUL AIMS.  (FN7)  SEE HERNDON V. LOWRY, 301 U.S.
242; YATES V. UNITED STATES, 354 U.S. 298; NOTO V. UNITED STATES, 367
U.S. 290; SCALES V. UNITED STATES, 367 U.S. 203.  AND IN PROHIBITING
"ADVISING" THE "DOCTRINE" OF UNLAWFUL OVERTHROW DOES THE STATUTE
PROHIBIT MERE "ADVISING" OF THE EXISTENCE OF THE DOCTRINE, OR ADVISING
ANOTHER TO SUPPORT THE DOCTRINE?  SINCE "ADVOCACY" OF THE DOCTRINE OF
FORCEFUL OVERTHROW IS SEPARATELY PROHIBITED, NEED THE PERSON "TEACHING"
OR "ADVISING" THIS DOCTRINE HIMSELF "ADVOCATE" IT?  DOES THE TEACHER
WHO INFORMS HIS CLASS ABOUT THE PRECEPTS OF MARXISM OR THE DECLARATION
OF INDEPENDENCE VIOLATE THIS PROHIBITION? 

SIMILAR UNCERTAINTY ARISES AS TO THE APPLICATION OF SUBDIVISION 1(B)
OF SEC. 105.  THAT SUBSECTION REQUIRES THE DISQUALIFICATION OF AN
EMPLOYEE INVOLVED WITH THE DISTRIBUTION OF WRITTEN MATERIAL "CONTAINING
OR ADVOCATING, ADVISING OR TEACHING THE DOCTRINE" OF FORCEFUL
OVERTHROW, AND WHO HIMSELF "ADVOCATES, ADVISES, TEACHES, OR EMBRACES
THE DUTY, NECESSITY OR PROPRIETY OF ADOPTING THE DOCTRINE CONTAINED
THEREIN."  HERE AGAIN, MERE ADVOCACY OF ABSTRACT DOCTRINE IS APPARENTLY
INCLUDED.  (FN8) AND DOES THE PROHIBITION OF DISTRIBUTION OF MATTER
"CONTAINING" THE DOCTRINE BAR HISTORIES OF THE EVOLUTION OF MARXIST
DOCTRINE OR TRACING THE BACKGROUND OF THE FRENCH, AMERICAN, OR RUSSIAN
REVOLUTIONS?  THE ADDITIONAL REQUIREMENT, THAT THE PERSON PARTICIPATING
IN DISTRIBUTION OF THE MATERIAL BE ONE WHO "ADVOCATES, ADVISES,
TEACHES, OR EMBRACES THE DUTY, NECESSITY OR PROPRIETY OF ADOPTING THE
DOCTRINE" OF FORCEFUL OVERTHROW, DOES NOT ALLEVIATE THE UNCERTAINTY IN
THE SCOPE OF THE SECTION, BUT EXACERBATES IT.  LIKE THE LANGUAGE OF
SEC. 105, SUBD. 1(A), THIS LANGUAGE MAY REASONABLY BE CONSTRUED TO
COVER MERE EXPRESSION OF BELIEF.  FOR EXAMPLE, DOES THE UNIVERSITY
LIBRARIAN WHO RECOMMENDS THE READING OF SUCH MATERIALS THEREBY
"ADVOCATE  ...  THE  ...  PROPRIETY OF ADOPTING THE DOCTRINE CONTAINED
THEREIN"? 

WE DO NOT HAVE THE BENEFIT OF A JUDICIAL GLOSS BY THE NEW YORK COURTS
ENLIGHTENING US AS TO THE SCOPE OF THIS COMPLICATED PLAN.  (FN9)  IN
LIGHT OF THE INTRICATE ADMINISTRATIVE MACHINERY FOR ITS ENFORCEMENT,
THIS IS NOT SURPRISING.  THE VERY INTRICACY OF THE PLAN AND THE
UNCERTAINTY AS TO THE SCOPE OF ITS PROSCRIPTIONS MAKE IT A HIGHLY
EFFICIENT IN TERROREM MECHANISM.  IT WOULD BE A BOLD TEACHER WHO WOULD
NOT STAY AS FAR AS POSSIBLE FROM UTTERANCES OR ACTS WHICH MIGHT
JEOPARDIZE HIS LIVING BY ENMESHING HIM IN THIS INTRICATE MACHINERY. 
THE UNCERTAINTY AS TO THE UTTERANCES AND ACTS PROSCRIBED INCREASES THAT
CAUTION IN "THOSE WHO BELIEVE THE WRITTEN LAW MEANS WHAT IT SAYS." 
BAGGETT V. BULLITT, SUPRA, AT 374.  THE RESULT MUST BE TO STIFLE "THAT
FREE PLAY OF THE SPIRIT WHICH ALL TEACHERS OUGHT ESPECIALLY TO
CULTIVATE AND PRACTICE ...  ."  (FN10)  THAT PROBABILITY IS ENHANCED BY
THE PROVISIONS REQUIRING AN ANNUAL REVIEW OF EVERY TEACHER TO DETERMINE
WHETHER ANY UTTERANCE OR ACT OF HIS, INSIDE THE CLASSROOM OR OUT, CAME
WITHIN THE SANCTIONS OF THE LAWS.  FOR A MEMORANDUM WARNS EMPLOYEES
THAT UNDER THE STATUTES "SUBVERSIVE" ACTIVITIES MAY TAKE THE FORM OF
"THE WRITING OF ARTICLES, THE DISTRIBUTION OF PAMPHLETS, THE
ENDORSEMENT OF SPEECHES MADE OR ARTICLES WRITTEN OR ACTS PERFORMED BY
OTHERS," AND REMINDS THEM "THAT IT IS A PRIMARY DUTY OF THE SCHOOL
AUTHORITIES IN EACH SCHOOL DISTRICT TO TAKE POSITIVE ACTION TO
ELIMINATE FROM THE SCHOOL SYSTEM ANY TEACHER IN WHOSE CASE THERE IS
EVIDENCE THAT HE IS GUILTY OF SUBVERSIVE ACTIVITY.  SCHOOL AUTHORITIES
ARE UNDER OBLIGATION TO PROCEED IMMEDIATELY AND CONCLUSIVELY IN EVERY
SUCH CASE." 

THERE CAN BE NO DOUBT OF THE LEGITIMACY OF NEW YORK'S INTEREST IN
PROTECTING ITS EDUCATION SYSTEM FROM SUBVERSION.  BUT "EVEN THOUGH THE
GOVERNMENTAL PURPOSE BE LEGITIMATE AND SUBSTANTIAL, THAT PURPOSE CANNOT
BE PURSUED BY MEANS THAT BROADLY STIFLE FUNDAMENTAL PERSONAL LIBERTIES
WHEN THE END CAN BE MORE NARROWLY ACHIEVED."  SHELTON V. TUCKER, 364
U.S. 479, 488.  THE PRINCIPLE IS NOT INAPPLICABLE BECAUSE THE
LEGISLATION IS AIMED AT KEEPING SUBVERSIVES OUT OF THE TEACHING RANKS. 
IN DE JONGE V. OREGON, 299 U.S. 353, 365, THE COURT SAID: 

"THE GREATER THE IMPORTANCE OF SAFEGUARDING THE COMMUNITY FROM
INCITEMENTS TO THE OVERTHROW OF OUR INSTITUTIONS BY FORCE AND VIOLENCE,
THE MORE IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE THE
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN
ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE
END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND
THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN
LIES THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF
CONSTITUTIONAL GOVERNMENT." 

OUR NATION IS DEEPLY COMMITTED TO SAFEGUARDING ACADEMIC FREEDOM,
WHICH IS OF TRANSCENDENT VALUE TO ALL OF US AND NOT MERELY TO THE
TEACHERS CONCERNED.  THAT FREEDOM IS THEREFORE A SPECIAL CONCERN OF THE
FIRST AMENDMENT, WHICH DOES NOT TOLERATE LAWS THAT CAST A PALL OF
ORTHODOXY OVER THE CLASSROOM.  "THE VIGILANT PROTECTION OF
CONSTITUTIONAL FREEDOMS IS NOWHERE MORE VITAL THAN IN THE COMMUNITY OF
AMERICAN SCHOOLS."  SHELTON V. TUCKER, SUPRA, AT 487.  THE CLASSROOM IS
PECULIARLY THE "MARKETPLACE OF IDEAS."  THE NATION'S FUTURE DEPENDS
UPON LEADERS TRAINED THROUGH WIDE EXPOSURE TO THAT ROBUST EXCHANGE OF
IDEAS WHICH DISCOVERS TRUTH "OUT OF A MULTITUDE OF TONGUES, RATHER THAN
THROUGH ANY KIND OF AUTHORITATIVE SELECTION."  UNITED STATES V.
ASSOCIATED PRESS, 52 F. SUPP. 362, 372.  IN SWEEZY V. NEW HAMPSHIRE,
354 U.S. 234, 250, WE SAID:

"THE ESSENTIALITY OF FREEDOM IN THE COMMUNITY OF AMERICAN
UNIVERSITIES IS ALMOST SELF-EVIDENT.  NO ONE SHOULD UNDERESTIMATE THE
VITAL ROLE IN A DEMOCRACY THAT IS PLAYED BY THOSE WHO GUIDE AND TRAIN
OUR YOUTH.  TO IMPOSE ANY STRAIT JACKET UPON THE INTELLECTUAL LEADERS
IN OUR COLLEGES AND UNIVERSITIES WOULD IMPERIL THE FUTURE OF OUR
NATION.  NO FIELD OF EDUCATION IS SO THOROUGHLY COMPREHENDED BY MAN
THAT NEW DISCOVERIES CANNOT YET BE MADE.  PARTICULARLY IS THAT TRUE IN
THE SOCIAL SCIENCES, WHERE FEW, IF ANY, PRINCIPLES ARE ACCEPTED AS
ABSOLUTES.  SCHOLARSHIP CANNOT FLOURISH IN AN ATMOSPHERE OF SUSPICION
AND DISTRUST.  TEACHERS AND STUDENTS MUST ALWAYS REMAIN FREE TO
INQUIRE, TO STUDY AND TO EVALUATE, TO GAIN NEW MATURITY AND
UNDERSTANDING; OTHERWISE OUR CIVILIZATION WILL STAGNATE AND DIE." 

WE EMPHASIZE ONCE AGAIN THAT "PRECISION OF REGULATION MUST BE THE
TOUCHSTONE IN AN AREA SO CLOSELY TOUCHING OUR MOST PRECIOUS FREEDOMS,"
N.A.A.C.P. V. BUTTON, 371 U.S. 415, 438; "FOR STANDARDS OF PERMISSIBLE
STATUTORY VAGUENESS ARE STRICT IN THE AREA OF FREE EXPRESSION  ...  .
BECAUSE FIRST AMENDMENT FREEDOMS NEED BREATHING SPACE TO SURVIVE,
GOVERNMENT MAY REGULATE IN THE AREA ONLY WITH NARROW SPECIFICITY." 
ID., AT 432-433.  NEW YORK'S COMPLICATED AND INTRICATE SCHEME PLAINLY
VIOLATES THAT STANDARD.  WHEN ONE MUST GUESS WHAT CONDUCT OR UTTERANCE
MAY LOSE HIM HIS POSITION, ONE NECESSARILY WILL "STEER FAR WIDER OF THE
UNLAWFUL ZONE  ...  ."  SPEISER V. RANDALL, 357 U.S. 513, 526.  FOR
"THE THREAT OF SANCTIONS MAY DETER  ...  ALMOST AS POTENTLY AS THE
ACTUAL APPLICATION OF SANCTIONS."  N.A.A.C.P. V. BUTTON, SUPRA, AT
433.  THE DANGER OF THAT CHILLING EFFECT UPON THE EXERCISE OF VITAL
FIRST AMENDMENT RIGHTS MUST BE GUARDED AGAINST BY SENSITIVE TOOLS WHICH
CLEARLY INFORM TEACHERS WHAT IS BEING PROSCRIBED.  SEE STROMBERG V.
CALIFORNIA, 283 U.S. 359, 369; CRAMP V. BOARD OF PUBLIC INSTRUCTION,
368 U.S. 278; BAGGETT V. BULLITT, SUPRA. 

THE REGULATORY MAZE CREATED BY NEW YORK IS WHOLLY LACKING IN "TERMS
SUSCEPTIBLE OF OBJECTIVE MEASUREMENT."  CRAMP V. BOARD OF PUBLIC
INSTRUCTION, SUPRA, AT 286.  IT HAS THE QUALITY OF "EXTRAORDINARY
AMBIGUITY" FOUND TO BE FATAL TO THE OATHS CONSIDERED IN CRAMP AND
BAGGETT V. BULLITT.   "MEN OF COMMON INTELLIGENCE MUST NECESSARILY
GUESS AT ITS MEANING AND DIFFER AS TO ITS APPLICATION ...  ."  BAGGETT
V. BULLITT, SUPRA, AT 367.  VAGUENESS OF WORDING IS AGGRAVATED BY
PROLIXITY AND PROFUSION OF STATUTES, REGULATIONS, AND ADMINISTRATIVE
MACHINERY, AND BY MANIFOLD CROSS-REFERENCES TO INTERRELATED ENACTMENTS
AND RULES. 

WE THEREFORE HOLD THAT SEC. 3021 OF THE EDUCATION LAW AND
SUBDIVISIONS 1(A), 1(B) AND 3 OF SEC 105 OF THE CIVIL SERVICE LAW AS
IMPLEMENTED BY THE MACHINERY CREATED PURSUANT TO SEC 3022 OF THE
EDUCATION LAW ARE UNCONSTITUTIONAL. 

              IV. 

APPELLANTS HAVE ALSO CHALLENGED THE CONSTITUTIONALITY OF THE DISCRETE
PROVISIONS OF SUBDIVISION 1(C) OF SEC. 105 AND SUBDIVISION 2 OF THE
FEINBERG LAW, WHICH MAKE COMMUNIST PARTY MEMBERSHIP, AS SUCH, PRIMA
FACIE EVIDENCE OF DISQUALIFICATION.  THE PROVISION WAS ADDED TO
SUBDIVISION 1(C) OF SEC. 105 IN 1958 AFTER THE BOARD OF REGENTS,
FOLLOWING NOTICE AND HEARING, LISTED THE COMMUNIST PARTY OF THE UNITED
STATES AND THE COMMUNIST PARTY OF THE STATE OF NEW YORK AS "SUBVERSIVE"
ORGANIZATIONS.  SUBDIVISION 2 OF THE FEINBERG LAW WAS, HOWEVER, BEFORE
THE COURT IN ADLER AND ITS CONSTITUTIONALITY WAS SUSTAINED.  BUT
CONSTITUTIONAL DOCTRINE WHICH HAS EMERGED SINCE THAT DECISION HAS
REJECTED ITS MAJOR PREMISE.  THAT PREMISE WAS THAT PUBLIC EMPLOYMENT,
INCLUDING ACADEMIC EMPLOYMENT, MAY BE CONDITIONED UPON THE SURRENDER OF
CONSTITUTIONAL RIGHTS WHICH COULD NOT BE ABRIDGED BY DIRECT GOVERNMENT
ACTION.  TEACHERS, THE COURT SAID IN ADLER, "MAY WORK FOR THE SCHOOL
SYSTEM UPON THE REASONABLE TERMS LAID DOWN BY THE PROPER AUTHORITIES OF
NEW YORK.  IF THEY DO NOT CHOOSE TO WORK ON SUCH TERMS, THEY ARE AT
LIBERTY TO RETAIN THEIR BELIEFS AND ASSOCIATIONS AND GO ELSEWHERE." 
342 U.S., AT 492.  THE COURT ALSO STATED THAT A TEACHER DENIED
EMPLOYMENT BECAUSE OF MEMBERSHIP IN A LISTED ORGANIZATION "IS NOT
THEREBY DENIED THE RIGHT OF FREE SPEECH AND ASSEMBLY.  HIS FREEDOM OF
CHOICE BETWEEN MEMBERSHIP IN THE ORGANIZATION AND EMPLOYMENT IN THE
SCHOOL SYSTEM MIGHT BE LIMITED, BUT NOT HIS FREEDOM OF SPEECH OR
ASSEMBLY, EXCEPT IN THE REMOTE SENSE THAT LIMITATION IS INHERENT IN
EVERY CHOICE."  ID., AT 493. 

HOWEVER, THE COURT OF APPEALS FOR THE SECOND CIRCUIT CORRECTLY SAID
IN AN EARLIER STAGE OF THIS CASE, "  ...  THE THEORY THAT PUBLIC
EMPLOYMENT WHICH MAY BE DENIED ALTOGETHER MAY BE SUBJECTED TO ANY
CONDITIONS, REGARDLESS OF HOW UNREASONABLE, HAS BEEN UNIFORMLY
REJECTED."  KEYISHIAN V. BOARD OF REGENTS, 345 F.2D 236, 239.  INDEED,
THAT THEORY WAS EXPRESSLY REJECTED IN A SERIES OF DECISIONS FOLLOWING
ADLER.  SEE WIEMAN V. UPDEGRAFF, 344 U.S. 183; SLOCHOWER V. BOARD OF
EDUCATION, 350 U.S. 551; CRAMP V. BOARD OF PUBLIC INSTRUCTION, SUPRA;
BAGGETT V. BULLITT, SUPRA; SHELTON V. TUCKER, SUPRA; SPEISER V.
RANDALL, SUPRA; SEE ALSO SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S.
232; TORCASO V. WATKINS, 367 U.S. 488.  IN SHERBERT V. VERNER, 374 U.S.
398, 404, WE SAID:  "IT IS TOO LATE IN THE DAY TO DOUBT THAT THE
LIBERTIES OF RELIGION AND EXPRESSION MAY BE INFRINGED BY THE DENIAL OF
OR PLACING OF CONDITIONS UPON A BENEFIT OR PRIVILEGE." 

WE PROCEED THEN TO THE QUESTION OF THE VALIDITY OF THE PROVISIONS OF
SUBDIVISION 1(C) OF SEC 105 AND SUBDIVISION 2 OF SEC 3022, BARRING
EMPLOYMENT TO MEMBERS OF LISTED ORGANIZATIONS.  HERE AGAIN
CONSTITUTIONAL DOCTRINE HAS DEVELOPED SINCE ADLER.  MERE KNOWING
MEMBERSHIP WITHOUT A SPECIFIC INTENT TO FURTHER THE UNLAWFUL AIMS OF AN
ORGANIZATION IS NOT A CONSTITUTIONALLY ADEQUATE BASIS FOR EXCLUSION
FROM SUCH POSITIONS AS THOSE HELD BY APPELLANTS. 

IN ELFBRANDT V. RUSSELL, 384 U.S. 11, WE SAID, "THOSE WHO JOIN AN
ORGANIZATION BUT DO NOT SHARE ITS UNLAWFUL PURPOSES AND WHO DO NOT
PARTICIPATE IN ITS UNLAWFUL ACTIVITIES SURELY POSE NO THREAT, EITHER AS
CITIZENS OR AS PUBLIC EMPLOYEES."  ID., AT 17.  WE THERE STRUCK DOWN A
STATUTORILY REQUIRED OATH BINDING THE STATE EMPLOYEE NOT TO BECOME A
MEMBER OF THE COMMUNIST PARTY WITH KNOWLEDGE OF ITS UNLAWFUL PURPOSE,
ON THREAT OF DISCHARGE AND PERJURY PROSECUTION IF THE OATH WERE
VIOLATED.  WE FOUND THAT "ANY LINGERING DOUBT THAT PROSCRIPTION OF MERE
KNOWING MEMBERSHIP, WITHOUT ANY SHOWING OF 'SPECIFIC INTENT,' WOULD RUN
AFOUL OF THE CONSTITUTION WAS SET AT REST BY OUR DECISION IN APTHEKER
V. SECRETARY OF STATE, 378 U.S. 500."  ELFBRANDT V. RUSSELL, SUPRA, AT
16.  IN APTHEKER WE HELD THAT PARTY MEMBERSHIP, WITHOUT KNOWLEDGE OF
THE PARTY'S UNLAWFUL PURPOSES AND SPECIFIC INTENT TO FURTHER ITS
UNLAWFUL AIMS, COULD NOT CONSTITUTIONALLY WARRANT DEPRIVATION OF THE
RIGHT TO TRAVEL ABROAD.  AS WE SAID IN SCHNEIDERMAN V. UNITED STATES,
320 U.S. 118, 136, "UNDER OUR TRADITIONS BELIEFS ARE PERSONAL AND NOT A
MATTER OF MERE ASSOCIATION, AND  ...  MEN IN ADHERING TO A POLITICAL
PARTY OR OTHER ORGANIZATION  ...  DO NOT SUBSCRIBE UNQUALIFIEDLY TO ALL
OF ITS PLATFORMS OR ASSERTED PRINCIPLES."  "A LAW WHICH APPLIES TO
MEMBERSHIP WITHOUT THE 'SPECIFIC INTENT' TO FURTHER THE ILLEGAL AIMS OF
THE ORGANIZATION INFRINGES UNNECESSARILY ON PROTECTED FREEDOMS.  IT
RESTS ON THE DOCTRINE OF 'GUILT BY ASSOCIATION' WHICH HAS NO PLACE
HERE."  ELFBRANDT, SUPRA, AT 19.  THUS MERE PARTY MEMBERSHIP, EVEN WITH
KNOWLEDGE OF THE PARTY'S UNLAWFUL GOALS, CANNOT SUFFICE TO JUSTIFY
CRIMINAL PUNISHMENT, SEE SCALES V. UNITED STATES, 367 U.S. 203; NOTO V.
UNITED STATES, 367 U.S. 290; YATES V. UNITED STATES, 354 U.S. 298;
(FN11) NOR MAY IT WARRANT A FINDING OF MORAL UNFITNESS JUSTIFYING
DISBARMENT.  SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232.    THESE
LIMITATIONS CLEARLY APPLY TO A PROVISION, LIKE SEC. 105, SUBD. 1(C),
WHICH BLANKETS ALL STATE EMPLOYEES, REGARDLESS OF THE "SENSITIVITY" OF
THEIR POSITIONS.  BUT EVEN THE FEINBERG LAW PROVISION, APPLICABLE
PRIMARILY TO ACTIVITIES OF TEACHERS, WHO HAVE CAPTIVE AUDIENCES OF
YOUNG MINDS, ARE SUBJECT TO THESE LIMITATIONS IN FAVOR OF FREEDOM OF
EXPRESSION AND ASSOCIATION; THE STIFLING EFFECT ON THE ACADEMIC MIND
FROM CURTAILING FREEDOM OF ASSOCIATION IN SUCH MANNER IS MANIFEST, AND
HAS BEEN DOCUMENTED IN RECENT STUDIES.  (FN12)  ELFBRANDT AND APTHEKER
STATE THE GOVERNING STANDARD; LEGISLATION WHICH SANCTIONS MEMBERSHIP
UNACCOMPANIED BY SPECIFIC INTENT TO FURTHER THE UNLAWFUL GOALS OF THE
ORGANIZATION OR WHICH IS NOT ACTIVE MEMBERSHIP VIOLATES CONSTITUTIONAL
LIMITATIONS. 

MEASURED AGAINST THIS STANDARD, BOTH CIVIL SERVICE LAW SEC. 105,
SUBD. 1(C), AND EDUCATION LAW SEC 3022, SUBD. 2, SWEEP OVERBROADLY INTO
ASSOCIATION WHICH MAY NOT BE PROSCRIBED.  THE PRESUMPTION OF
DISQUALIFICATION ARISING FROM PROOF OF MERE MEMBERSHIP MAY BE REBUTTED,
BUT ONLY BY (A) A DENIAL OF MEMBERSHIP, (B) A DENIAL THAT THE
ORGANIZATION ADVOCATES THE OVERTHROW OF GOVERNMENT BY FORCE, OR (C) A
DENIAL THAT THE TEACHER HAS KNOWLEDGE OF SUCH ADVOCACY.  LEDERMAN V.
BOARD OF EDUCATION, 276 APP. DIV. 527, 96 N.Y.S.2D 466, AFF'D, 301 N.Y.
476, 95 N.E.2D 806.  (FN13)  THUS PROOF OF NONACTIVE MEMBERSHIP OR A
SHOWING OF THE ABSENCE OF INTENT TO FURTHER UNLAWFUL AIMS WILL NOT
REBUT THE PRESUMPTION AND DEFEAT DISMISSAL.  THIS IS EMPHASIZED IN
OFFICIAL ADMINISTRATIVE INTERPRETATIONS.  FOR EXAMPLE, IT IS SAID IN A
LETTER ADDRESSED TO PROSPECTIVE APPOINTEES BY THE PRESIDENT OF THE
STATE UNIVERSITY, "YOU WILL NOTE THAT  ...  BOTH THE LAW AND
REGULATIONS ARE VERY SPECIFICALLY DIRECTED TOWARD THE ELIMINATION AND
NONAPPOINTMENT OF 'COMMUNISTS' FROM OR TO OUR TEACHING RANKS ...  ." 
THE FEINBERG CERTIFICATE WAS EVEN MORE EXPLICIT:  "ANYONE WHO IS A
MEMBER OF THE COMMUNIST PARTY OR OF ANY ORGANIZATION THAT ADVOCATES THE
VIOLENT OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF THE
STATE OF NEW YORK OR ANY POLITICAL SUBDIVISION THEREOF CANNOT BE
EMPLOYED BY THE STATE UNIVERSITY."  THIS OFFICIAL ADMINISTRATIVE
INTERPRETATION IS SUPPORTED BY THE LEGISLATIVE PREAMBLE TO THE FEINBERG
LAW, SEC 1, IN WHICH THE LEGISLATURE CONCLUDES AS A RESULT OF ITS
FINDINGS THAT "IT IS ESSENTIAL THAT THE LAWS PROHIBITING PERSONS WHO
ARE MEMBERS OF SUBVERSIVE GROUPS, SUCH AS THE COMMUNIST PARTY AND ITS
AFFILIATED ORGANIZATIONS, FROM OBTAINING OR RETAINING EMPLOYMENT IN THE
PUBLIC SCHOOLS, BE RIGOROUSLY ENFORCED." 

THUS SEC. 105, SUBD. 1(C), AND SEC. 3022, SUBD. 2, SUFFER FROM
IMPERMISSIBLE "OVERBREADTH."  ELFBRANDT V. RUSSELL, SUPRA, AT 19;
APTHEKER V. SECRETARY OF STATE, SUPRA; N.A.A.C.P. V. BUTTON, SUPRA;
SAIA V. NEW YORK, 334 U.S. 558; SCHNEIDER V. STATE, 308 U.S. 147;
LOVELL V. GRIFFIN, 303 U.S. 444; CF. HAGUE V. C.I.O., 307 U.S. 496, 515
516; SEE GENERALLY DOMBROWSKI V. PFISTER, 380 U.S. 479, 486.  THEY SEEK
TO BAR EMPLOYMENT BOTH FOR ASSOCIATION WHICH LEGITIMATELY MAY BE
PROSCRIBED AND FOR ASSOCIATION WHICH MAY NOT BE PROSCRIBED CONSISTENTLY
WITH FIRST AMENDMENT RIGHTS.  WHERE STATUTES HAVE AN OVERBROAD SWEEP,
JUST AS WHERE THEY ARE VAGUE, "THE HAZARD OF LOSS OR SUBSTANTIAL
IMPAIRMENT OF THOSE PRECIOUS RIGHTS MAY BE CRITICAL," DOMBROWSKI V.
PFISTER, SUPRA, AT 486, SINCE THOSE COVERED BY THE STATUTE ARE BOUND TO
LIMIT THEIR BEHAVIOR TO THAT WHICH IS UNQUESTIONABLY SAFE.  AS WE SAID
IN SHELTON V. TUCKER, SUPRA, AT 488, "THE BREADTH OF LEGISLATIVE
ABRIDGMENT MUST BE VIEWED IN THE LIGHT OF LESS DRASTIC MEANS FOR
ACHIEVING THE SAME BASIC PURPOSE." 

WE THEREFORE HOLD THAT CIVIL SERVICE LAW SEC. 105, SUBD. 1(C), AND
EDUCATION LAW SEC. 3022, SUBD. 2, ARE INVALID INSOFAR AS THEY PROSCRIBE
MERE KNOWING MEMBERSHIP WITHOUT ANY SHOWING OF SPECIFIC INTENT TO
FURTHER THE UNLAWFUL AIMS OF THE COMMUNIST PARTY OF THE UNITED STATES
OR OF THE STATE OF NEW YORK. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  THE TEXT OF THE PERTINENT STATUTES AND ADMINISTRATIVE
REGULATIONS IN EFFECT AT THE TIME OF TRIAL APPEARS IN THE APPENDIX TO
THE OPINION. 

FN2  THE DISTRICT COURT INITIALLY REFUSED TO CONVENE A THREE-JUDGE
COURT, 233 F. SUPP. 752, AND WAS REVERSED BY THE COURT OF APPEALS FOR
THE SECOND CIRCUIT.  345 F.2D 236. 

FN3  FOR THE HISTORY OF NEW YORK LOYALTY-SECURITY LEGISLATION,
INCLUDING THE FEINBERG LAW, SEE CHAMBERLAIN, LOYALTY AND LEGISLATIVE
ACTION, AND THAT AUTHOR'S ARTICLE IN GELLHORN, THE STATES AND
SUBVERSION 231. 

FN4  THE SOLE "VAGUENESS" CONTENTION IN ADLER CONCERNED THE WORD
"SUBVERSIVE," APPEARING IN THE PREAMBLE TO AND CAPTION OF SEC 3022. 
342 U.S., AT 496. 

FN5  THERE IS NO MERIT IN THE SUGGESTION ADVANCED BY THE ATTORNEY
GENERAL OF NEW YORK FOR THE FIRST TIME IN HIS BRIEF IN THIS COURT THAT
SEC 3021 OF THE EDUCATION LAW AND SEC 105, SUBD. 3, OF THE CIVIL
SERVICE LAW ARE NOT "PERTINENT TO OUR INQUIRY."  SECTION 3022 OF THE
EDUCATION LAW INCORPORATES BY REFERENCE THE PROVISIONS OF BOTH, THEREBY
RENDERING THEM APPLICABLE TO FACULTY MEMBERS OF ALL COLLEGES AND
INSTITUTIONS OF HIGHER EDUCATION.  ONE OF THE REASONS WHY THE COURT OF
APPEALS ORDERED THE CONVENING OF A THREE-JUDGE COURT WAS THAT A
SUBSTANTIAL FEDERAL QUESTION WAS PRESENTED BY THE FACT THAT "ADLER  ...
REFUSED TO PASS UPON THE CONSTITUTIONALITY OF SECTION 3021 ...  AND
THAT SEVERAL STATUTORY AMENDMENTS, SUCH AS SECTION 105 (3) OF THE CIVIL
SERVICE LAW, ARE ALL SUBSEQUENT TO ADLER."  345 F.2D 236, 238.  THE
THREE-JUDGE COURT ALSO PROPERLY FOUND THESE PROVISIONS APPLICABLE TO
APPELLANTS IN HOLDING THEM CONSTITUTIONAL.  IT IS SIGNIFICANT THAT
APPELLEES CONSISTENTLY DEFENDED THE CONSTITUTIONALITY OF THESE SECTIONS
IN THE COURTS BELOW.  MOREOVER, THE THREE-JUDGE COURT RENDERED ITS
DECISION UPON THE BASIS OF A "STIPULATION OF FACT," PARAGRAPH 20 OF
WHICH RECITES: 

"SECTION 3022 INCORPORATES IN FULL BY REFERENCE AND IMPLEMENTS
STATE EDUCATION LAW AS FOLLOWS: SUBDIVISION (1) OF SECTION 3022, AS
AMENDED  ...  DIRECTS THE BOARD OF REGENTS TO ADOPT AND ENFORCE RULES
AND REGULATIONS FOR THE ELIMINATION OF PERSONS BARRED FROM EMPLOYMENT
IN THE PUBLIC SCHOOL SYSTEM OR ANY COLLEGE OR INSTITUTION OF HIGHER
EDUCATION OWNED BY THE STATE OF NEW YORK OR ANY POLITICAL SUBDIVISION
THEREOF, BY REASON OF VIOLATION OF ANY OF THE PROVISIONS OF SECTION 105
OF THE CIVIL SERVICE LAW OR SECTION 3021 OF THE NEW YORK STATE
EDUCATION LAW." 

FN6  PENAL LAW SECS 160-161 ARE TO BE REPLACED EFFECTIVE SEPTEMBER 1,
1967, BY A SINGLE PROVISION ENTITLED "CRIMINAL ADVOCACY." 

FN7  THE NEW YORK STATE LEGISLATIVE COMMITTEE ON PUBLIC EMPLOYEE
SECURITY PROCEDURES, IN DESCRIBING THIS PROVISION, NOTED: 

"IN DISQUALIFYING FOR EMPLOYMENT THOSE WHO ADVOCATE OR TEACH THE
'DOCTRINE' OF THE VIOLENT OVERTHROW OF GOVERNMENT, (SEC 105) IS TO BE
DISTINGUISHED FROM THE LANGUAGE OF THE SMITH ACT (18 U.S.C. SECS 371,
2385), WHICH HAS BEEN CONSTRUED BY THE SUPREME COURT TO MAKE IT
CRIMINAL TO INCITE TO 'ACTION' FOR THE FORCIBLE OVERTHROW OF
GOVERNMENT, BUT NOT TO TEACH THE 'ABSTRACT DOCTRINE' OF SUCH FORCIBLE
OVERTHROW.  YATES V. UNITED STATES, 354 U.S. 298 (1957)."  1958 N.Y.
STATE LEGIS.  ANNUAL 70, N. 1. 

FN8  COMPARE THE SMITH ACT, 18 U.S.C. SEC 2385, WHICH PUNISHES ONE
WHO "PRINTS, PUBLISHES, EDITS, ISSUES, CIRCULATES, SELLS, DISTRIBUTES,
OR PUBLICLY DISPLAYS ANY WRITTEN OR PRINTED MATTER ADVOCATING,
ADVISING, OR TEACHING THE DUTY, NECESSITY, DESIRABILITY, OR PROPRIETY
OF" UNLAWFUL OVERTHROW, PROVIDED HE IS SHOWN TO HAVE AN "INTENT TO
CAUSE THE OVERTHROW OR DESTRUCTION OF ANY SUCH GOVERNMENT." 

FN9  THIS IS NOT A CASE WHERE ABSTENTION PENDING STATE COURT
INTERPRETATION WOULD BE APPROPRIATE, BAGGETT V. BULLITT, SUPRA, AT 375
379; DOMBROWSKI V. PFISTER, 380 U.S. 479-490. 

FN10  WIEMAN V. UPDEGRAFF, 344 U.S. 183, 195 (FRANKFURTER, J.,
CONCURRING). 

FN11  WHETHER OR NOT LOSS OF PUBLIC EMPLOYMENT CONSTITUTES
"PUNISHMENT," CF. UNITED STATES V. LOVETT, 328 U.S. 303, THERE CAN BE
NO DOUBT THAT THE REPRESSIVE IMPACT OF THE THREAT OF DISCHARGE WILL BE
NO LESS DIRECT OR SUBSTANTIAL. 

FN12  SEE LAZARSFELD & THIELENS, THE ACADEMIC MIND 92-112, 192-217;
BIDDLE, THE FEAR OF FREEDOM 155 ET SEQ.; JAHODA & COOK, SECURITY
MEASURES AND FREEDOM OF THOUGHT: AN EXPLORATORY STUDY OF THE IMPACT OF
LOYALTY AND SECURITY PROGRAMS, 61 YALE L.J. 295 (1952).  SEE GENERALLY,
MACIVER, ACADEMIC FREEDOM IN OUR TIME; HULLFISH, EDUCATIONAL FREEDOM IN
AN AGE OF ANXIETY; KONVITZ, EXPANDING LIBERTIES 86-108; MORRIS,
ACADEMIC FREEDOM AND LOYALTY OATHS, 28 LAW & CONTEMP.  PROB.  487
(1963). 

FN13  IN LIGHT OF OUR DISPOSITION, WE NEED NOT CONSIDER APPELLANTS'
CONTENTION THAT THE BURDEN PLACED ON THE EMPLOYEE OF COMING FORWARD
WITH SUBSTANTIAL REBUTTING EVIDENCE UPON PROOF OF MEMBERSHIP IN A
LISTED ORGANIZATION IS CONSTITUTIONALLY IMPERMISSIBLE.  COMPARE SPEISER
V. RANDALL, 357 U.S. 513. 

                APPENDIX TO OPINION OF THE COURT. 

                        CIVIL SERVICE LAW. 

SEC 105.  SUBVERSIVE ACTIVITIES; DISQUALIFICATION. 

1.  INELIGIBILITY OF PERSONS ADVOCATING OVERTHROW OF GOVERNMENT BY
FORCE OR UNLAWFUL MEANS.  NO PERSON SHALL BE APPOINTED TO ANY OFFICE OR
POSITION IN THE SERVICE OF THE STATE OR OF ANY CIVIL DIVISION THEREOF,
NOR SHALL ANY PERSON EMPLOYED IN ANY SUCH OFFICE OR POSITION BE
CONTINUED IN SUCH EMPLOYMENT, NOR SHALL ANY PERSON BE EMPLOYED IN THE
PUBLIC SERVICE AS SUPERINTENDENT, PRINCIPAL OR TEACHER IN A PUBLIC
SCHOOL OR ACADEMY OR IN A STATE COLLEGE OR ANY OTHER STATE EDUCATIONAL
INSTITUTION WHO: 

(A)  BY WORD OF MOUTH OR WRITING WILFULLY AND DELIBERATELY ADVOCATES,
ADVISES OR TEACHES THE DOCTRINE THAT THE GOVERNMENT OF THE UNITED
STATES OR OF ANY STATE OR OF ANY POLITICAL SUBDIVISION THEREOF SHOULD
BE OVERTHROWN OR OVERTURNED BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS;
OR: 

(B)  PRINTS, PUBLISHES, EDITS, ISSUES OR SELLS ANY BOOK, PAPER,
DOCUMENT OR WRITTEN OR PRINTED MATTER IN ANY FORM CONTAINING OR
ADVOCATING ADVISING OR TEACHING THE DOCTRINE THAT THE GOVERNMENT OF THE
UNITED STATES OR OF ANY STATE OR OF ANY POLITICAL SUBDIVISION THEREOF
SHOULD BE OVERTHROWN BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS, AND WHO
ADVOCATES, ADVISES, TEACHES, OR EMBRACES THE DUTY, NECESSITY OR
PROPRIETY OF ADOPTING THE DOCTRINE CONTAINED THEREIN; OR: 

(C)  ORGANIZES OR HELPS TO ORGANIZE OR BECOMES A MEMBER OF ANY
SOCIETY OR GROUP OF PERSONS WHICH TEACHES OR ADVOCATES THAT THE
GOVERNMENT OF THE UNITED STATES OR OF ANY STATE OR OF ANY POLITICAL
SUBDIVISION THEREOF SHALL BE OVERTHROWN BY FORCE OR VIOLENCE, OR BY ANY
UNLAWFUL MEANS. 

FOR THE PURPOSES OF THIS SECTION, MEMBERSHIP IN THE COMMUNIST PARTY
OF THE UNITED STATES OF AMERICA OR THE COMMUNIST PARTY OF THE STATE OF
NEW YORK SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF DISQUALIFICATION FOR
APPOINTMENT TO OR RETENTION IN ANY OFFICE OR POSITION IN THE SERVICE OF
THE STATE OR OF ANY CITY OR CIVIL DIVISION THEREOF. 

2.  A PERSON DISMISSED OR DECLARED INELIGIBLE PURSUANT TO THIS
INELIGIBILITY BE ENTITLED TO PETITION FOR AN ORDER TO SHOW CAUSE SIGNED
BY A JUSTICE OF THE SUPREME COURT, WHY A HEARING ON SUCH CHARGES SHOULD
NOT BE HAD.  UNTIL THE FINAL JUDGMENT ON SAID HEARING IS ENTERED, THE
ORDER TO SHOW CAUSE SHALL STAY THE EFFECT OF ANY ORDER OF DISMISSAL OR
INELIGIBILITY BASED ON THE PROVISIONS OF THIS SECTION; PROVIDED,
HOWEVER, THAT DURING SUCH STAY A PERSON SO DISMISSED SHALL BE SUSPENDED
WITHOUT PAY, AND IF THE FINAL DETERMINATION SHALL BE IN HIS FAVOR HE
SHALL BE RESTORED TO HIS POSITION WITH PAY FOR THE PERIOD OF SUCH
SUSPENSION LESS THE AMOUNT OF COMPENSATION WHICH HE MAY HAVE EARNED IN
ANY OTHER EMPLOYMENT OR OCCUPATION AND ANY UNEMPLOYMENT INSURANCE
BENEFITS HE MAY HAVE RECEIVED DURING SUCH PERIOD.  THE HEARING SHALL
CONSIST OF THE TAKING OF TESTIMONY IN OPEN COURT WITH OPPORTUNITY FOR
CROSS EXAMINATION.  THE BURDEN OF SUSTAINING THE VALIDITY OF THE ORDER
OF DISMISSAL OR INELIGIBILITY BY A FAIR PREPONDERANCE OF THE CREDIBLE
EVIDENCE SHALL BE UPON THE PERSON MAKING SUCH DISMISSAL OR ORDER OF
INELIGIBILITY. 

3.  REMOVAL FOR TREASONABLE OR SEDITIOUS ACTS OR UTTERANCES.  A
PERSON IN THE CIVIL SERVICE OF THE STATE OR OF ANY CIVIL DIVISION
THEREOF SHALL BE REMOVABLE THEREFROM FOR THE UTTERANCE OF ANY
TREASONABLE OR SEDITIOUS WORD OR WORDS OR THE DOING OF ANY TREASONABLE
OR SEDITIOUS ACT OR ACTS WHILE HOLDING SUCH POSITION.  FOR THE PURPOSE
OF THIS SUBDIVISION, A TREASONABLE WORD OR ACT SHALL MEAN "TREASON," AS
DEFINED IN THE PENAL LAW; A SEDITIOUS WORD OR ACT SHALL MEAN "CRIMINAL
ANARCHY" AS DEFINED IN THE PENAL LAW. 

                    EDUCATION LAW. 

SEC 3021.  REMOVAL OF SUPERINTENDENTS, TEACHERS AND EMPLOYEES FOR
TREASONABLE OR SEDITIOUS ACTS OR UTTERANCES. 

A PERSON EMPLOYED AS SUPERINTENDENT OF SCHOOLS, TEACHER OR EMPLOYEE
IN THE PUBLIC SCHOOLS, IN ANY CITY OR SCHOOL DISTRICT OF THE STATE,
SHALL BE REMOVED FROM SUCH POSITION FOR THE UTTERANCE OF ANY
TREASONABLE OR SEDITIOUS WORD OR WORDS OR THE DOING OF ANY TREASONABLE
OR SEDITIOUS ACT OR ACTS WHILE HOLDING SUCH POSITION. 

SEC 3022.  ELIMINATION OF SUBVERSIVE PERSONS FROM THE PUBLIC SCHOOL
SYSTEM. 

1. THE BOARD OF REGENTS SHALL ADOPT, PROMULGATE, AND ENFORCE RULES
AND REGULATIONS FOR THE DISQUALIFICATION OR REMOVAL OF SUPERINTENDENTS
OF SCHOOLS, TEACHERS OR EMPLOYEES IN THE PUBLIC SCHOOLS IN ANY CITY OR
SCHOOL DISTRICT OF THE STATE AND THE FACULTY MEMBERS AND ALL OTHER
PERSONNEL AND EMPLOYEES OF ANY COLLEGE OR OTHER INSTITUTION OF HIGHER
EDUCATION OWNED AND OPERATED BY THE STATE OR ANY SUBDIVISION THEREOF
WHO VIOLATE THE PROVISIONS OF SECTION THREE THOUSAND TWENTY-ONE OF THIS
ARTICLE OR WHO ARE INELIGIBLE FOR APPOINTMENT TO OR RETENTION IN ANY
OFFICE OR POSITION IN SUCH PUBLIC SCHOOLS OR SUCH INSTITUTIONS OF
HIGHER EDUCATION ON ANY OF THE GROUNDS SET FORTH IN SECTION TWELVE-A OF
THE CIVIL SERVICE LAW AND SHALL PROVIDE THEREIN APPROPRIATE METHODS AND
PROCEDURE FOR THE ENFORCEMENT OF SUCH SECTIONS OF THIS ARTICLE AND THE
CIVIL SERVICE LAW.    2.  THE BOARD OF REGENTS SHALL, AFTER INQUIRY,
AND AFTER SUCH NOTICE AND HEARING AS MAY BE APPROPRIATE, MAKE A LISTING
OF ORGANIZATIONS WHICH IT FINDS TO BE SUBVERSIVE IN THAT THEY ADVOCATE,
ADVISE, TEACH OR EMBRACE THE DOCTRINE THAT THE GOVERNMENT OF THE UNITED
STATES OR OF ANY STATE OR OF ANY POLITICAL SUBDIVISION THEREOF SHALL BE
OVERTHROWN OR OVERTURNED BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS, OR
THAT THEY ADVOCATE, ADVISE, TEACH OR EMBRACE THE DUTY, NECESSITY OR
PROPRIETY OF ADOPTING ANY SUCH DOCTRINE, AS SET FORTH IN SECTION TWELVE
A OF THE CIVIL SERVICE LAW.  SUCH LISTINGS MAY BE AMENDED AND REVISED
FROM TIME TO TIME.  THE BOARD, IN MAKING SUCH INQUIRY, MAY UTILIZE ANY
SIMILAR LISTINGS OR DESIGNATIONS PROMULGATED BY ANY FEDERAL AGENCY OR
AUTHORITY AUTHORIZED BY FEDERAL LAW, REGULATION OR EXECUTIVE ORDER, AND
FOR THE PURPOSES OF SUCH INQUIRY, THE BOARD MAY REQUEST AND RECEIVE
FROM SUCH FEDERAL AGENCIES OR AUTHORITIES ANY SUPPORTING MATERIAL OR
EVIDENCE THAT MAY BE MADE AVAILABLE TO IT.  THE BOARD OF REGENTS SHALL
PROVIDE IN THE RULES AND REGULATIONS REQUIRED BY SUBDIVISION ONE HEREOF
THAT MEMBERSHIP IN ANY SUCH ORGANIZATION INCLUDED IN SUCH LISTING MADE
BY IT SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF DISQUALIFICATION FOR
APPOINTMENT TO OR RETENTION IN ANY OFFICE OR POSITION IN THE PUBLIC
SCHOOLS OF THE STATE. 

3.  THE BOARD OF REGENTS SHALL ANNUALLY, ON OR BEFORE THE FIFTEENTH
DAY OF FEBRUARY, BY SEPARATE REPORT, RENDER TO THE LEGISLATURE, A FULL
STATEMENT OF MEASURES TAKEN BY IT FOR THE ENFORCEMENT OF SUCH
PROVISIONS OF LAW AND TO REQUIRE COMPLIANCE THEREWITH.  SUCH REPORTS
SHALL CONTAIN A DESCRIPTION OF SURVEYS MADE BY THE BOARD OF REGENTS,
FROM TIME TO TIME, AS MAY BE APPROPRIATE, TO ASCERTAIN THE EXTENT TO
WHICH SUCH PROVISIONS OF LAW HAVE BEEN ENFORCED IN THE CITY AND SCHOOL
DISTRICTS OF THE STATE. 

                         RULES OF THE BOARD OF REGENTS. 

                            (ADOPTED JULY 15, 1949.) 

                                 ARTICLE XVIII. 

                             SUBVERSIVE ACTIVITIES. 

TEACHERS AND OTHER EMPLOYES. 

1  THE SCHOOL AUTHORITIES OF EACH SCHOOL DISTRICT SHALL TAKE ALL
NECESSARY ACTION TO PUT INTO EFFECT THE FOLLOWING PROCEDURES FOR
DISQUALIFICATION OR REMOVAL OF SUPERINTENDENTS, TEACHERS OR OTHER
EMPLOYES WHO VIOLATE THE PROVISIONS OF SECTION 3021 OF THE EDUCATION
LAW OR SECTION 12-A* OF THE CIVIL SERVICE LAW. 

*NOW SECTION 105. 

A PRIOR TO THE APPOINTMENT OF ANY SUPERINTENDENT, TEACHER OR
EMPLOYE, THE NOMINATING OFFICIAL, IN ADDITION TO MAKING DUE INQUIRY AS
TO THE CANDIDATE'S ACADEMIC RECORD, PROFESSIONAL TRAINING, EXPERIENCE
AND PERSONAL QUALITIES, SHALL INQUIRE OF PRIOR EMPLOYERS, AND SUCH
OTHER PERSONS AS MAY BE IN A POSITION TO FURNISH PERTINENT INFORMATION,
AS TO WHETHER THE CANDIDATE IS KNOWN TO HAVE VIOLATED THE AFORESAID
STATUTORY PROVISIONS, INCLUDING THE PROVISIONS WITH RESPECT TO
MEMBERSHIP IN ORGANIZATIONS LISTED BY THE BOARD OF REGENTS AS
SUBVERSIVE IN ACCORDANCE WITH PARAGRAPH 2 HEREOF.  NO PERSON WHO IS
FOUND TO HAVE VIOLATED THE SAID STATUTORY PROVISIONS SHALL BE ELIGIBLE
FOR EMPLOYMENT. 

B  THE SCHOOL AUTHORITIES SHALL REQUIRE ONE OR MORE OF THE OFFICIALS
IN THEIR EMPLOY, WHOM THEY SHALL DESIGNATE FOR SUCH PURPOSE, TO SUBMIT
TO THEM IN WRITING NOT LATER THAN OCTOBER 31, 1949, AND NOT LATER THAN
SEPTEMBER 30TH OF EACH SCHOOL YEAR THEREAFTER, A REPORT ON EACH TEACHER
OR OTHER EMPLOYE.  SUCH REPORT SHALL EITHER (1) STATE THAT THERE IS NO
EVIDENCE INDICATING THAT SUCH TEACHER OR OTHER EMPLOYE HAS VIOLATED THE
STATUTORY PROVISIONS HEREIN REFERRED TO, INCLUDING THE PROVISIONS WITH
RESPECT TO MEMBERSHIP IN ORGANIZATIONS LISTED BY THE REGENTS AS
SUBVERSIVE IN ACCORDANCE WITH PARAGRAPH 2 HEREOF; OR (2) WHERE THERE IS
EVIDENCE INDICATING A VIOLATION OF SAID STATUTORY PROVISIONS, INCLUDING
MEMBERSHIP IN SUCH A SUBVERSIVE ORGANIZATION, RECOMMEND THAT ACTION BE
TAKEN TO DISMISS SUCH TEACHER OR OTHER EMPLOYE, ON THE GROUND OF A
SPECIFIED VIOLATION OR VIOLATIONS OF THE LAW. 

C  THE SCHOOL AUTHORITIES SHALL THEMSELVES PREPARE SUCH REPORTS ON
THE SUPERINTENDENT OF SCHOOLS AND SUCH OTHER OFFICIALS AS MAY BE
DIRECTLY RESPONSIBLE TO THEM, INCLUDING THE OFFICIALS DESIGNATED BY
THEM IN ACCORDANCE WITH SUBDIVISION B OF THIS PARAGRAPH. 

D  THE SCHOOL AUTHORITIES SHALL PROCEED AS PROMPTLY AS POSSIBLE, AND
IN ANY EVENT WITHIN 90 DAYS AFTER THE SUBMISSION OF THE RECOMMENDATIONS
REQUIRED IN SUBDIVISION B OF THIS PARAGRAPH, EITHER TO PREFER FORMAL
CHARGES AGAINST SUPERINTENDENTS, TEACHERS OR OTHER EMPLOYES FOR WHOM
THE EVIDENCE JUSTIFIES SUCH ACTION, OR TO REJECT THE RECOMMENDATIONS
FOR SUCH ACTION. 

E  FOLLOWING THE DETERMINATION REQUIRED IN SUBDIVISION D OF THIS
PARAGRAPH, THE SCHOOL AUTHORITIES SHALL IMMEDIATELY INSTITUTE
PROCEEDINGS FOR THE DISMISSAL OF SUPERINTENDENTS, TEACHERS OR OTHER
EMPLOYES IN THOSE CASES IN WHICH IN THEIR JUDGMENT THE EVIDENCE
INDICATES VIOLATION OF THE STATUTORY PROVISIONS HEREIN REFERRED TO.  IN
PROCEEDINGS AGAINST PERSONS SERVING ON PROBATION OR THOSE HAVING
TENURE, THE APPROPRIATE STATUTORY PROCEDURE FOR DISMISSAL SHALL BE
FOLLOWED.  IN PROCEEDINGS AGAINST PERSONS SERVING UNDER CONTRACT AND
NOT UNDER THE PROVISIONS OF A TENURE LAW, THE SCHOOL AUTHORITIES SHALL
CONDUCT SUCH HEARINGS ON CHARGES AS THEY DEEM THE EXIGENCIES WARRANT,
BEFORE TAKING FINAL ACTION ON DISMISSAL.  IN ALL CASES ALL RIGHTS TO A
FAIR TRIAL, REPRESENTATION BY COUNSEL AND APPEAL OR COURT REVIEW AS
PROVIDED BY STATUTE OR THE CONSTITUTION SHALL BE SCRUPULOUSLY
OBSERVED. 

2  PURSUANT TO CHAPTER 360 OF THE LAWS OF 1949, THE BOARD OF REGENTS
WILL ISSUE A LIST, WHICH MAY BE AMENDED AND REVISED FROM TIME TO TIME,
OF ORGANIZATIONS WHICH THE BOARD FINDS TO BE SUBVERSIVE IN THAT THEY
ADVOCATE, ADVISE, TEACH OR EMBRACE THE DOCTRINE THAT THE GOVERNMENT OF
THE UNITED STATES, OR OF ANY STATE OR OF ANY POLITICAL SUBDIVISION
THEREOF, SHALL BE OVERTHROWN OR OVERTURNED BY FORCE, VIOLENCE OR ANY
UNLAWFUL MEANS, OR THAT THEY ADVOCATE, ADVISE, TEACH OR EMBRACE THE
DUTY, NECESSITY OR PROPRIETY OF ADOPTING ANY SUCH DOCTRINE, AS SET
FORTH IN SECTION 12-A* OF THE CIVIL SERVICE LAW.  EVIDENCE OF
MEMBERSHIP IN ANY ORGANIZATION SO LISTED ON OR AFTER THE TENTH DAY
SUBSEQUENT TO THE DATE OF OFFICIAL PROMULGATION OF SUCH LIST SHALL
CONSTITUTE PRIMA FACIE EVIDENCE OF DISQUALIFICATION FOR APPOINTMENT TO
OR RETENTION OF ANY OFFICE OR POSITION IN THE SCHOOL SYSTEM.  EVIDENCE
OF MEMBERSHIP IN SUCH AN ORGANIZATION PRIOR TO SAID DAY SHALL BE
PRESUMPTIVE EVIDENCE THAT MEMBERSHIP HAS CONTINUED, IN THE ABSENCE OF A
SHOWING THAT SUCH MEMBERSHIP HAS BEEN TERMINATED IN GOOD FAITH. 

*NOW SECTION 105. 

3 ON OR BEFORE THE FIRST DAY OF DECEMBER OF EACH YEAR, THE SCHOOL
AUTHORITIES OF EACH SCHOOL DISTRICT SHALL RENDER TO THE COMMISSIONER OF
EDUCATION A FULL REPORT, OFFICIALLY ADOPTED BY THE SCHOOL AUTHORITIES
AND SIGNED BY THEIR PRESIDING OFFICER, OF THE MEASURES TAKEN BY THEM
FOR THE ENFORCEMENT OF THESE REGULATIONS DURING THE CALENDAR YEAR
ENDING ON THE 31ST DAY OF OCTOBER PRECEDING.  SUCH REPORT SHALL INCLUDE
A STATEMENT AS TO (A) THE TOTAL NUMBER OF SUPERINTENDENTS, TEACHERS AND
OTHER EMPLOYES IN THE EMPLOY OF THE SCHOOL DISTRICT; (B) THE NUMBER OF
SUPERINTENDENTS, TEACHERS AND OTHER EMPLOYES AS TO WHOM THE SCHOOL
AUTHORITIES AND/OR THE OFFICIALS DESIGNATED BY THEM HAVE REPORTED THAT
THERE IS NO EVIDENCE INDICATING THAT SUCH EMPLOYES HAVE VIOLATED THE
STATUTORY PROVISIONS HEREIN REFERRED TO, INCLUDING THE PROVISIONS WITH
RESPECT TO MEMBERSHIP IN ORGANIZATIONS LISTED BY THE REGENTS AS
SUBVERSIVE; AND (C) THE NUMBER OF SUPERINTENDENTS, TEACHERS AND OTHER
EMPLOYES IN WHOSE CASES THE SCHOOL AUTHORITIES AND/OR THE OFFICIALS
DESIGNATED BY THEM HAVE RECOMMENDED THAT ACTION BE TAKEN TO DISMISS THE
EMPLOYES IN QUESTION, ON THE GROUNDS OF SPECIFIED VIOLATIONS OF THE LAW
OR EVIDENCE OF MEMBERSHIP IN A SUBVERSIVE ORGANIZATION.  SUCH REPORT
SHALL ALSO INCLUDE, FOR THE GROUP LISTED UNDER (C) ABOVE, A STATEMENT
OF (D) THE NUMBER OF CASES IN WHICH CHARGES HAVE BEEN OR ARE TO BE
PREFERRED AND THE STATUS OR FINAL DISPOSITION OF EACH OF THESE CASES;
(E) THE NUMBER OF CASES IN WHICH THE SCHOOL AUTHORITIES HAVE CONCLUDED
THAT THE EVIDENCE REPORTED BY THE DESIGNATED OFFICIALS DOES NOT WARRANT
THE PREFERRING OF CHARGES; AND (F) THE NUMBER OF CASES IN WHICH THE
SCHOOL AUTHORITIES HAVE NOT DETERMINED, AS OF OCTOBER 31ST OF THE
SCHOOL YEAR IN QUESTION, ON THE ACTION TO BE TAKEN. 

4  IMMEDIATELY UPON THE FINDING BY SCHOOL AUTHORITIES THAT ANY PERSON
IS DISQUALIFIED FOR APPOINTMENT OR RETENTION IN EMPLOYMENT UNDER THESE
REGULATIONS, SAID SCHOOL AUTHORITIES SHALL REPORT TO THE COMMISSIONER
OF EDUCATION THE NAME OF SUCH PERSON AND THE EVIDENCE SUPPORTING HIS
DISQUALIFICATION, INCLUDING A TRANSCRIPT OF THE OFFICIAL RECORDS OF
HEARINGS ON CHARGES, IF ANY, WHICH HAVE BEEN CONDUCTED. 

                          PENAL LAW. 

SEC 160.  CRIMINAL ANARCHY DEFINED. 

CRIMINAL ANARCHY IS THE DOCTRINE THAT ORGANIZED GOVERNMENT SHOULD BE
OVERTHROWN BY FORCE OR VIOLENCE, OR BY ASSASSINATION OF THE EXECUTIVE
HEAD OR OF ANY OF THE EXECUTIVE OFFICALS OF GOVERNMENT, OR BY ANY
UNLAWFUL MEANS.  THE ADVOCACY OF SUCH DOCTRINE EITHER BY WORD OF MOUTH
OR WRITING IS A FELONY. 

SEC 161.  ADVOCACY OF CRIMINAL ANARCHY. 

ANY PERSON WHO: 

1.  BY WORD OF MOUTH OR WRITING ADVOCATES, ADVISES OR TEACHES THE
DUTY, NECESSITY OR PROPRIETY OF OVERTHROWING OR OVERTURNING ORGANIZED
GOVERNMENT BY FORCE OR VIOLENCE, OR BY ASSASSINATION OF THE EXECUTIVE
HEAD OR OF ANY OF THE EXECUTIVE OFFICIALS OF GOVERNMENT, OR BY ANY
UNLAWFUL MEANS; OR, 

2.  PRINTS, PUBLISHES, EDITS, ISSUES OR KNOWINGLY CIRCULATES, SELLS,
DISTRIBUTES OR PUBLICLY DISPLAYS ANY BOOK, PAPER, DOCUMENT, OR WRITTEN
OR PRINTED MATTER IN ANY FORM, CONTAINING OR ADVOCATING, ADVISING OR
TEACHING THE DOCTRINE THAT ORGANIZED GOVERNMENT SHOULD BE OVERTHROWN BY
FORCE, VIOLENCE OR ANY UNLAWFUL MEANS; OR, 

3.  OPENLY, WILFULLY AND DELIBERATELY JUSTIFIES BY WORD OF MOUTH OR
WRITING THE ASSASSINATION OR UNLAWFUL KILLING OR ASSAULTING OF ANY
EXECUTIVE OR OTHER OFFICER OF THE UNITED STATES OR OF ANY STATE OR OF
ANY CIVILIZED NATION HAVING AN ORGANIZED GOVERNMENT BECAUSE OF HIS
OFFICIAL CHARACTER, OR ANY OTHER CRIME, WITH INTENT TO TEACH, SPREAD OR
ADVOCATE THE PROPRIETY OF THE DOCTRINES OF CRIMINAL ANARCHY; OR, 

4.  ORGANIZES OR HELPS TO ORGANIZE OR BECOMES A MEMBER OF OR
VOLUNTARILY ASSEMBLES WITH ANY SOCIETY, GROUP OR ASSEMBLY OF PERSONS
FORMED TO TEACH OR ADVOCATE SUCH DOCTRINE. 

IS GUILTY OF A FELONY AND PUNISHABLE BY IMPRISONMENT FOR NOT MORE
THAN TEN YEARS, OR BY A FINE OF NOT MORE THAN FIVE THOUSAND DOLLARS, OR
BOTH. 

     RESOLUTIONS OF THE BOARD OF TRUSTEES OF THE

          STATE UNIVERSITY OF NEW YORK. 

RESOLVED THAT RESOLUTION 65-100 ADOPTED MAY 13, 1965, BE AND THE SAME
HEREBY IS, AMENDED TO READ AS FOLLOWS: 

RESOLVED THAT RESOLUTION NO. 56-98 ADOPTED ON OCTOBER 11, 1956,
INCORPORATED INTO THE POLICIES OF THE BOARD OF TRUSTEES AS SECTION 3 OF
TITLE B OF ARTICLE XI THEREOF, AND THE PROCEDURE ON NEW ACADEMIC
APPOINTMENTS THEREIN REFERRED TO, BE, AND THE SAME HEREBY ARE,
RESCINDED, AND: 

FURTHER RESOLVED THAT TITLE B OF ARTICLE XI OF THE POLICIES OF THE
BOARD OF TRUSTEES BE AMENDED BY ADDING A NEW SECTION 3 THERETO TO READ
AS FOLLOWS: 

SEC 3.  PROCEDURE FOR APPOINTMENTS. 

BEFORE ANY INITIAL APPOINTMENT SHALL HEREAFTER BE MADE TO ANY
POSITION CERTIFIED TO BE IN THE PROFESSIONAL SERVICE OF THE UNIVERSITY
PURSUANT TO SECTION 35 OF THE CIVIL SERVICE LAW THE OFFICER AUTHORIZED
TO MAKE SUCH APPOINTMENT OR TO MAKE THE INITIAL RECOMMENDATION THEREFOR
SHALL SEND OR GIVE TO THE PROSPECTIVE APPOINTEE A STATEMENT PREPARED BY
THE PRESIDENT CONCISELY EXPLAINING THE DISQUALIFICATION IMPOSED BY
EDUCATION LAW AND THE RULES OF THE BOARD OF REGENTS THEREUNDER,
INCLUDING THE PRESUMPTION OF SUCH DISQUALIFICATION BY REASON OF
MEMBERSHIP IN ORGANIZATIONS LISTED BY THE BOARD OF REGENTS.  SUCH
OFFICER, IN ADDITION TO DUE INQUIRY AS TO THE CANDIDATE'S RECORD,
PROFESSIONAL TRAINING, EXPERIENCE AND PERSONAL QUALITIES, SHALL MAKE OR
CAUSE TO BE MADE SUCH FURTHER INQUIRY AS MAY BE NEEDED TO SATISFY HIM
AS TO WHETHER OR NOT SUCH CANDIDATE IS DISQUALIFIED UNDER THE
PROVISIONS OF SUCH STATUTE AND RULES.  SHOULD ANY QUESTION ARISE IN THE
COURSE OF SUCH INQUIRY SUCH CANDIDATE MAY REQUEST OR SUCH OFFICER MAY
REQUIRE A PERSONAL INTERVIEW.  REFUSAL OF A CANDIDATE TO ANSWER ANY
QUESTION RELEVANT TO SUCH INQUIRY BY SUCH OFFICER SHALL BE SUFFICIENT
GROUND TO REFUSE TO MAKE OR RECOMMEND APPOINTMENT.  AN APPOINTMENT OR
RECOMMENDATION FOR APPOINTMENT SHALL CONSTITUTE A CERTIFICATION BY THE
APPOINTING OR RECOMMENDING OFFICER THAT DUE INQUIRY HAS BEEN MADE AND
THAT HE FINDS NO REASON TO BELIEVE THAT THE CANDIDATE IS DISQUALIFIED
FOR THE APPOINTMENT. 

FURTHER RESOLVED THAT THIS RESOLUTION SHALL BECOME EFFECTIVE JULY 1,
1965, PROVIDED, HOWEVER, THAT THIS RESOLUTION SHALL BECOME EFFECTIVE
IMMEDIATELY WITH RESPECT TO APPOINTMENTS MADE OR RECOMMENDED PRIOR TO
JULY 1, 1965 TO TAKE EFFECT ON OR AFTER THAT DATE.    RESOLVED THAT ANY
PERSON PRESENTLY EMPLOYED OR HERETOFORE EMPLOYED BY THE UNIVERSITY WHO
HAS FAILED TO SIGN THE CERTIFICATE REQUIRED BY THE PROCEDURE ON NEW
ACADEMIC APPOINTMENTS ADOPTED ON OCTOBER 11, 1956, SHALL NOT BE DEEMED
DISQUALIFIED OR INELIGIBLE SOLELY BY REASON OF SUCH FAILURE, FOR
APPOINTMENT OR REAPPOINTMENT IN THE PROFESSIONAL SERVICE OF THE
UNIVERSITY IN THE MANNER PROVIDED IN NEW SECTION 3 OF TITLE B OF
ARTICLE XI OF THE POLICIES OF THE BOARD OF TRUSTEES AS ADOPTED BY
RESOLUTION THIS DAY; AND: 

FURTHER RESOLVED THAT ANY PERSON PRESENTLY EMPLOYED BY THE UNIVERSITY
SHALL NOT BE DEEMED INELIGIBLE OR DISQUALIFIED FOR CONTINUANCE IN HIS
EMPLOYMENT DURING THE PRESCRIBED TERM THEREOF, NOR BE SUBJECT TO
CHARGES OF MISCONDUCT, SOLELY BY REASON OF SUCH FAILURE, PROVIDED HE IS
FOUND QUALIFIED FOR SUCH CONTINUANCE BY THE CHIEF ADMINISTRATIVE
OFFICER OF THE INSTITUTION AT WHICH HE IS EMPLOYED IN ACCORDANCE WITH
THE PROCEDURES PRESCRIBED IN SAID NEW SECTION 3 OF TITLE B OF ARTICLE
XI OF THE POLICIES OF THE BOARD OF TRUSTEES. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE STEWART
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THE BLUNDERBUSS FASHION IN WHICH THE MAJORITY COUCHES "ITS ARTILLERY
OF WORDS," TOGETHER WITH THE MORASS OF CASES IT CITES AS AUTHORITY AND
THE OBSCURITY OF THEIR APPLICATION TO THE QUESTION AT HAND, MAKES IT
DIFFICULT TO GRASP THE TRUE THRUST OF ITS DECISION.  AT THE OUTSET, IT
IS THEREFORE NECESSARY TO FOCUS ON ITS BASIS. 

THIS IS A DECLARATORY JUDGMENT ACTION TESTING THE APPLICATION OF THE
FEINBERG LAW TO APPELLANTS.  THE CERTIFICATE AND STATEMENT ONCE
REQUIRED BY THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY AND UPON
WHICH APPELLANTS BASE THEIR ATTACK WERE, BEFORE THE CASE WAS TRIED,
ABANDONED BY THE BOARD AND ARE NO LONGER REQUIRED TO BE MADE.  DESPITE
THIS FACT THE MAJORITY PROCEEDS TO ITS DECISION STRIKING DOWN NEW
YORK'S FEINBERG LAW AND OTHER STATUTES AS APPLIED TO APPELLANTS ON THE
BASIS OF THE OLD CERTIFICATE AND STATEMENT.  IT DOES NOT EXPLAIN HOW
THE STATUTE CAN BE APPLIED TO APPELLANTS UNDER PROCEDURES WHICH HAVE
BEEN FOR ALMOST TWO YEARS A DEAD LETTER.  THE ISSUES POSED ARE,
THEREFORE, PURELY ABSTRACT AND ENTIRELY SPECULATIVE IN CHARACTER.  THE
COURT UNDER SUCH CIRCUMSTANCES HAS IN THE PAST REFUSED TO PASS UPON
CONSTITUTIONAL QUESTIONS.  IN ADDITION, THE APPELLANTS HAVE NEITHER
EXHAUSTED THEIR ADMINISTRATIVE REMEDIES, NOR PURSUED THE REMEDY OF
JUDICIAL REVIEW OF AGENCY ACTION AS PROVIDED EARLIER BY SUBDIVISION (D)
OF SEC 12-A OF THE CIVIL SERVICE LAW.  FINALLY, ONE OF THE SECTIONS
STRICKEN, SEC 105, SUBD. 3, HAS BEEN AMENDED BY A REVISION WHICH UNDER
ITS TERMS WILL NOT BECOME EFFECTIVE UNTIL SEPTEMBER 1, 1967.  (LAWS
1965, C. 1030, SEC 240.15, REVISED PENAL LAW OF 1965.) 

                                             I. 

THE OLD CERTIFICATE UPON WHICH THE MAJORITY OPERATES REQUIRED ALL OF
THE APPELLANTS, SAVE STARBUCK, TO ANSWER THE QUERY WHETHER THEY WERE
COMMUNISTS, AND IF THEY WERE, WHETHER THEY HAD COMMUNICATED THAT FACT
TO THE PRESIDENT OF THE STATE UNIVERSITY.  STARBUCK WAS REQUIRED TO
ANSWER WHETHER HE HAD EVER ADVISED, TAUGHT, OR BEEN A MEMBER OF A GROUP
WHICH TAUGHT OR ADVOCATED THE DOCTRINE THAT THE GOVERNMENT OF THE
UNITED STATES, OR ANY OF ITS POLITICAL SUBDIVISIONS, SHOULD BE
OVERTHROWN BY FORCE, VIOLENCE, OR ANY UNLAWFUL MEANS.  ALL REFUSED TO
COMPLY.  IT IS IN THIS NONEXISTENT FRAME OF REFERENCE THAT THE MAJORITY
PROCEEDS TO ACT. 

IT IS CLEAR THAT THE FEINBERG LAW, IN WHICH THIS COURT FOUND "NO
CONSTITUTIONAL INFIRMITY" IN 1952, HAS BEEN GIVEN ITS DEATH BLOW
TODAY.  JUST AS THE MAJORITY HERE FINDS THAT THERE "CAN BE NO DOUBT OF
THE LEGITIMACY OF NEW YORK'S INTEREST IN PROTECTING ITS EDUCATION
SYSTEM FROM SUBVERSION" THERE CAN ALSO BE NO DOUBT THAT "THE BE-ALL AND
END-ALL" OF NEW YORK'S EFFORT IS HERE.  AND, REGARDLESS OF ITS
CORRECTNESS, NEITHER NEW YORK NOR THE SEVERAL STATES THAT HAVE FOLLOWED
THE TEACHING OF ADLER V. BOARD OF EDUCATION, 342 U.S. 485, FOR SOME 15
YEARS, CAN EVER PUT THE PIECES TOGETHER AGAIN.  NO COURT HAS EVER
REACHED OUT SO FAR TO DESTROY SO MUCH WITH SO LITTLE. 

THE SECTION (SEC 3021 OF THE EDUCATION LAW) WHICH AUTHORIZES THE
REMOVAL OF SUPERINTENDENTS, TEACHERS, OR EMPLOYEES IN THE PUBLIC
SCHOOLS IN ANY CITY OR SCHOOL DISTRICT OF NEW YORK FOR THE UTTERANCE OF
ANY TREASONABLE OR SEDITIOUS WORD OR WORDS IS ALSO STRUCK DOWN, EVEN
THOUGH IT DOES NOT APPLY TO APPELLANTS, AS WE SHALL DISCUSS BELOW. 

ALSO DECLARED UNCONSTITUTIONAL ARE THE SUBDIVISIONS (1(A), 1(B) AND
1(C) OF SEC 105 OF THE CIVIL SERVICE LAW) WHICH PREVENT THE APPOINTMENT
AND AUTHORIZE THE DISCHARGE OF ANY SUPERINTENDENT, PRINCIPAL, OR
TEACHER IN ANY PART OF NEW YORK'S PUBLIC EDUCATION ESTABLISHMENT WHO
WILFULLY ADVOCATES, ADVISES, OR TEACHES THE DOCTRINE THAT THE
GOVERNMENT OF THE UNITED STATES, OR OF ANY STATE OR ANY POLITICAL
SUBDIVISION THEREOF SHOULD BE OVERTHROWN BY FORCE, VIOLENCE, OR ANY
OTHER UNLAWFUL MEANS (1(A); OR WHO PRINTS, PUBLISHES, EDITS, ISSUES, OR
SELLS ANY BOOK, PAPER, DOCUMENT, OR WRITTEN OR PRINTED MATTER, IN ANY
FORM, CONTAINING SUCH DOCTRINE AND "WHO ADVOCATES, ADVISES, TEACHES, OR
EMBRACES THE DUTY, NECESSITY OR PROPRIETY OF ADOPTING THE DOCTRINE
CONTAINED THEREIN" (1(B)); OR WHO ORGANIZES OR HELPS TO ORGANIZE OR
BECOMES A MEMBER OF ANY SOCIETY OR GROUP WHICH TEACHES OR ADVOCATES
SUCH DOCTRINE (1(C)).  THIS LATTER PROVISION WAS AMENDED IN 1958, WHILE
STILL PART OF SEC 12-A OF THE CIVIL SERVICE LAW, TO MAKE MEMBERSHIP IN
THE COMMUNIST PARTY PRIMA FACIE PROOF OF DISQUALIFICATION.  THE
LANGUAGE "ADVOCATE, ADVISE, TEACH," ETC., OBVIOUSLY SPRINGS FROM
FEDERAL STATUTES, PARTICULARLY THE SMITH ACT, SEC 2(A)(1), (2) AND (3),
54 STAT. 671, WHICH WAS APPROVED BY THIS COURT IN DENNIS V. UNITED
STATES, 341 U.S. 494 (1951).  STATE STATUTES OF SIMILAR CHARACTER AND
LANGUAGE HAVE BEEN APPROVED BY THIS COURT.  SEE GARNER V. BOARD OF
PUBLIC WORKS OF LOS ANGELES, 341 U.S. 716 (1951); BEILAN V. BOARD OF
EDUCATION, 357 U.S. 399 (1958). 

LASTLY STRICKEN IS THE SUBDIVISION (3 OF SEC 105) WHICH AUTHORIZES
THE DISCHARGE OF ANY PERSON IN THE CIVIL SERVICE OF THE STATE OR ANY
CIVIL DIVISION THEREOF WHO UTTERS ANY TREASONABLE OR SEDITIOUS WORD OR
COMMITS ANY TREASONABLE OR SEDITIOUS ACT, ALTHOUGH THIS SUBDIVISION IS
NOT AND NEVER HAS BEEN A PART OF THE FEINBERG LAW AND NEW YORK
SPECIFICALLY DISCLAIMS ITS APPLICABILITY TO THE APPELLANTS.  IN
ADDITION, HOW CAN THE COURT PASS UPON THIS LAW AS APPLIED WHEN THE
STATE HAS NEVER ATTEMPTED TO AND NOW RENOUNCES ITS APPLICATION TO
APPELLANTS? 

           II. 

THIS COURT HAS AGAIN AND AGAIN, SINCE AT LEAST 1951, APPROVED
PROCEDURES EITHER IDENTICAL OR AT THE LEAST SIMILAR TO THE ONES THE
COURT CONDEMNS TODAY.  IN GARNER V. BOARD OF PUBLIC WORKS OF LOS
ANGELES, SUPRA, WE HELD THAT A PUBLIC EMPLOYER WAS NOT PRECLUDED,
SIMPLY BECAUSE IT WAS AN AGENCY OF THE STATE, "FROM INQUIRING OF ITS
EMPLOYEES AS TO MATTERS THAT MAY PROVE RELEVANT TO THEIR FITNESS AND
SUITABILITY FOR THE PUBLIC SERVICE."  341 U.S., AT 720.  THE OATH THERE
USED PRACTICALLY THE SAME LANGUAGE AS THE STARBUCK STATEMENT HERE AND
THE AFFIDAVIT REFLECTS THE SAME TYPE OF INQUIRY AS WAS MADE IN THE OLD
CERTIFICATE CONDEMNED HERE.  THEN IN 1952, IN ADLER V. BOARD OF
EDUCATION, SUPRA, THIS COURT PASSED UPON THE IDENTICAL STATUTE
CONDEMNED HERE.  IT, TOO, WAS A DECLARATORY JUDGMENT ACTION - AS IN
THIS CASE.  HOWEVER, THERE THE ISSUES WERE NOT SO ABSTRACTLY FRAMED. 
OUR LATE BROTHER MINTON WROTE FOR THE COURT: 

"A TEACHER WORKS IN A SENSITIVE AREA IN A SCHOOLROOM.  THERE HE
SHAPES THE ATTITUDE OF YOUNG MINDS TOWARDS THE SOCIETY IN WHICH THEY
LIVE.  IN THIS, THE STATE HAS A VITAL CONCERN.  IT MUST PRESERVE THE
INTEGRITY OF THE SCHOOLS.  THAT THE SCHOOL AUTHORITIES HAVE THE RIGHT
AND THE DUTY TO SCREEN THE OFFICIALS, TEACHERS, AND EMPLOYEES AS TO
THEIR FITNESS TO MAINTAIN THE INTEGRITY OF THE SCHOOLS AS PART OF
ORDERED SOCIETY, CANNOT BE DOUBTED."  AT 493. 

AND AGAIN IN 1958 THE PROBLEM WAS BEFORE US IN BEILAN V. BOARD OF
EDUCATION, SUPRA.  THERE OUR LATE BROTHER BURTON WROTE FOR THE COURT: 

"BY ENGAGING IN TEACHING IN THE PUBLIC SCHOOLS, PETITIONER DID NOT
GIVE UP HIS RIGHT TO FREEDOM OF BELIEF, SPEECH OR ASSOCIATION.  HE DID,
HOWEVER, UNDERTAKE OBLIGATIONS OF FRANKNESS, CANDOR AND COOPERATION IN
ANSWERING INQUIRIES MADE OF HIM BY HIS EMPLOYING BOARD EXAMINING INTO
HIS FITNESS TO SERVE IT AS A PUBLIC SCHOOL TEACHER."  357 U.S., AT
405. 

AND ON THE SAME DAY IN LERNER V. CASEY, 357 U.S. 468, OUR BROTHER
HARLAN AGAIN UPHELD THE SEVERANCE OF A PUBLIC EMPLOYEE FOR HIS REFUSAL
TO ANSWER QUESTIONS CONCERNING HIS LOYALTY.  AND ALSO ON THE SAME DAY
MY BROTHER BRENNAN HIMSELF CITED GARNER WITH APPROVAL IN SPEISER V.
RANDALL, 357 U.S. 513 (1958). 

SINCE THAT TIME THE ADLER LINE OF CASES HAS BEEN CITED AGAIN AND
AGAIN WITH APPROVAL: SHELTON V. TUCKER, 364 U.S. 479 (1960), IN WHICH
BOTH ADLER AND BEILAN WERE QUOTED WITH APPROVAL, AND GARNER AND LERNER
WERE CITED IN A LIKE MANNER; LIKEWISE IN CRAMP V. BOARD OF PUBLIC
INSTRUCTION, 368 U.S. 278 (1961), ADLER WAS QUOTED TWICE WITH APPROVAL;
AND, IN A RELATED FIELD WHERE THE EMPLOYEE WAS DISCHARGED FOR REFUSAL
TO ANSWER QUESTIONS AS TO HIS LOYALTY AFTER BEING ORDERED TO DO SO,
NELSON V. LOS ANGELES COUNTY, 362 U.S. 1 (1960), THE COURT CITED WITH
APPROVAL ALL OF THE CASES WHICH TODAY IT SAYS HAVE BEEN REJECTED, I.E.,
GARNER, ADLER, BEILAN AND LERNER.  LATER KONIGSBERG V. STATE BAR, 366
U.S. 36 (1961), LIKEWISE CITED WITH APPROVAL BOTH BEILAN AND GARNER. 
AND IN OUR DECISION IN IN RE ANASTAPLO, 366 U.S. 82 (1961), GARNER,
BEILAN AND LERNER WERE ALL REFERRED TO.  FINALLY, ONLY THREE TERMS AGO
MY BROTHER WHITE RELIED UPON CRAMP, WHICH IN TURN CITED ADLER WITH
APPROVAL TWICE.  SEE BAGGETT V. BULLITT, 377 U.S. 360 (1964). 

IN VIEW OF THIS LONG LIST OF DECISIONS COVERING OVER 15 YEARS OF THIS
COURT'S HISTORY, IN WHICH NO OPINION OF THIS COURT EVEN QUESTIONED THE
VALIDITY OF THE ADLER LINE OF CASES, IT IS STRANGE TO ME THAT THE COURT
NOW FINDS THAT THE "CONSTITUTIONAL DOCTRINE WHICH HAS EMERGED SINCE
...  HAS REJECTED ADLER'S MAJOR PREMISE."  WITH DUE RESPECT, AS I READ
THEM, OUR CASES HAVE DONE NO SUCH THING. 

                             III. 

THE MAJORITY ALSO FINDS THAT ADLER DID NOT PASS UPON SEC 3021 OF THE
EDUCATION LAW, NOR SUBDIVISION 3 OF SEC 105 OF THE CIVIL SERVICE LAW,
NOR UPON THE VAGUENESS QUESTIONS OF SUBDIVISIONS 1(A), 1(B) AND 1(C) OF
SEC 105.  I WILL NOT DISCUSS THEM. 

1.  SECTION 3021 IS NOT APPLICABLE TO THESE APPELLANTS.  AS ATTORNEY
GENERAL LEFKOWITZ OF NEW YORK SAYS ON BEHALF OF THE STATE, THE BOARD OF
REGENTS AND THE CIVIL SERVICE COMMISSION, THIS SECTION BY ITS OWN TERMS
APPLIES ONLY TO SUPERINTENDENTS, TEACHERS, AND EMPLOYEES IN THE "PUBLIC
SCHOOLS, IN ANY CITY OR SCHOOL DISTRICT OF THE STATE ...  ."  IT DOES
NOT APPLY TO TEACHERS IN THE STATE UNIVERSITY AT ALL.* 

*THE COURT POINTS TO A STIPULATION OF COUNSEL THAT SEC 3022
INCORPORATES SEC 3021 INTO THE FEINBERG LAW.  HOWEVER, ATTORNEY GENERAL
LEFKOWITZ DID NOT SIGN THE STIPULATION ITSELF, BUT IN AN ADDENDUM
THERETO, AGREED ONLY THAT IT CONSTITUTED THE RECORD OF FACT - NOT OF
LAW.  HIS BRIEF CONTENDS THAT SEC 3021 IS NOT INCORPORATED INTO THE
LAW.  THE LEGISLATURE, OF COURSE, IS THE ONLY BODY THAT COULD
INCORPORATE SEC 3021 INTO THE FEINBERG LAW.  IT HAS NOT DONE SO. 

2.  LIKEWISE SUBDIVISION 3 OF SEC. 105 IS ALSO INAPPLICABLE.  IT WAS
DERIVED FROM SEC. 23-A OF THE CIVIL SERVICE LAW.  THE LATTER PROVISION
WAS ON THE BOOKS AT THE TIME OF THE FEINBERG LAW AS WELL AS WHEN ADLER
WAS DECIDED.  THE FEINBERG LAW REFERRED ONLY TO SEC 12-A OF THE CIVIL
SERVICE LAW, NOT SEC 23-A.  SECTION 12-A WAS LATER RECODIFIED AS
SUBDIVISIONS 1(A), (B) AND (C) OF SEC 105 OF THE CIVIL SERVICE LAW. 
OF THE CIVIL SERVICE OF THE STATE.  AS THE ATTORNEY GENERAL TELLS US,
THE LAW BEFORE US HAS TO DO WITH THE QUALIFICATIONS OF COLLEGE LEVEL
PERSONNEL NOT COVERED BY CIVIL SERVICE.  THE ATTORNEY GENERAL ALSO
ADVISES THAT NO SUPERINTENDENT, TEACHER, OR EMPLOYEE OF THE EDUCATIONAL
SYSTEM HAS EVER BEEN CHARGED WITH VIOLATING SEC 105, SUBD. 3.  THE
COURT SEEMS TO ME TO BE BUILDING STRAW MEN. 

3.  THE MAJORITY ALSO SAYS THAT NO CHALLENGE OR VAGUENESS POINTS WERE
PASSED UPON IN ADLER.  A CAREFUL EXAMINATION OF THE BRIEFS IN THAT CASE
CASTS CONSIDERABLE DOUBT ON THIS CONCLUSION.  IN THE APPELLANTS' BRIEF,
POINT 3, IN ADLER, THE QUESTION IS STATED IN THIS LANGUAGE: "THE
STATUTES AND THE REGULATIONS ISSUED THEREUNDER VIOLATE THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE OF THEIR VAGUENESS." 
CERTAINLY THE WORD "SUBVERSIVE" IS ATTACKED AS VAGUE AND THE COURT
FINDS THAT IT "HAS A VERY DEFINITE MEANING, NAMELY, AN ORGANIZATION
THAT TEACHES AND ADVOCATES THE OVERTHROW OF GOVERNMENT BY FORCE OR
VIOLENCE."  342 U.S., AT 496.  SIGNIFICANTLY THIS IS THE LANGUAGE OF
SUBDIVISIONS 1(A) AND (B) WHICH THE MAJORITY NOW FINDS VAGUE, AS
COVERING ONE "WHO MERELY ADVOCATES THE DOCTRINE IN THE ABSTRACT  ...  "
CITING SUCH CRIMINAL CASES AS HERNDON V. LOWRY, 301 U.S. 242 (1937),
WHICH WAS ON OUR BOOKS LONG BEFORE THE ADLER LINE OF CASES.  ALSO
SIGNIFICANT IS THE FACT THAT THE ADLER OPINION'S LAST SENTENCE IS "WE
FIND NO CONSTITUTIONAL INFIRMITY IN SEC 12-A (NOW SUBDIVISIONS 1 (A), 1
(B) AND 1 (C) OF SEC 105) OF THE CIVIL SERVICE LAW OF NEW YORK OR IN
THE FEINBERG LAW WHICH IMPLEMENTED IT  ...  ."  AT 496. 

                                             IV. 

BUT EVEN IF ADLER DID NOT DECIDE THESE QUESTIONS I WOULD BE OBLIGED
TO ANSWER THEM IN THE SAME WAY.  THE ONLY PORTION OF THE FEINBERG LAW
WHICH THE MAJORITY SAYS WAS NOT COVERED THERE AND IS APPLICABLE TO
APPELLANTS IS SEC. 105, SUBD. 1(A), 1(B) AND 1(C).  THESE HAVE TO DO
WITH TEACHERS WHO ADVOCATE, ADVISE, OR TEACH THE DOCTRINE OF OVERTHROW
OF OUR GOVERNMENT BY FORCE AND VIOLENCE, EITHER ORALLY OR IN WRITING. 
THIS WAS THE IDENTICAL CONDUCT THAT WAS CONDEMNED IN DENNIS V. UNITED
STATES, SUPRA.  THERE THE COURT FOUND THE EXACT VERBIAGE NOT TO BE
UNCONSTITUTIONALLY VAGUE, AND THAT FINDING WAS OF COURSE NOT AFFECTED
BY THE DECISION OF THIS COURT IN YATES V. UNITED STATES, 354 U.S. 298. 
THE MAJORITY MAKES MUCH OVER THE HORRIBLES THAT MIGHT ARISE FROM
SUBDIVISION 1(B) OF SEC. 105 WHICH CONDEMNS THE PRINTING, PUBLISHING,
SELLING, ETC., OF MATTER CONTAINING SUCH DOCTRINE.  BUT THE MAJORITY
FAILS TO STATE THAT THIS ACTION IS CONDEMNED ONLY WHEN AND IF THE
TEACHER ALSO PERSONALLY ADVOCATES, ADVISES, TEACHES, ETC., THE
NECESSITY OR PROPRIETY OF ADOPTING SUCH DOCTRINE.  THIS PLACES THIS
SUBDIVISION ON THE SAME FOOTING AS 1(A).  AND THE SAME IS TRUE OF
SUBDIVISION 1(C) WHERE TEACHER ORGANIZES, HELPS TO ORGANIZE OR BECOMES
A MEMBER OF AN ORGANIZATION WHICH TEACHES OR ADVOCATES SUCH DOCTRINE,
FOR SCIENTER WOULD ALSO BE A NECESSARY INGREDIENT UNDER OUR OPINION IN
GARNER, SUPRA.  MOREOVER, MEMBERSHIP IS ONLY PRIMA FACIE EVIDENCE OF
DISQUALIFICATION AND COULD BE REBUTTED, LEAVING THE BURDEN OF PROOF ON
THE STATE.  FURTHERMORE, ALL OF THESE PROCEDURES ARE PROTECTED BY AN
ADVERSARY HEARING WITH FULL JUDICIAL REVIEW. 

IN THE LIGHT OF THESE CONSIDERATIONS THE STRAINED AND UNBELIEVABLE
SUPPOSITIONS THAT THE MAJORITY POSES COULD HARDLY OCCUR.  AS WAS SAID
IN DENNIS, SUPRA, "WE ARE NOT CONVINCED THAT BECAUSE THERE MAY BE
BORDERLINE CASES" THE STATE SHOULD BE PROHIBITED THE PROTECTIONS IT
SEEKS.  AT 516.  WHERE THERE IS DOUBT AS TO ONE'S INTENT OR THE NATURE
OF HIS ACTIVITIES WE CANNOT ASSUME THAT THE ADMINISTRATIVE BOARDS WILL
NOT GIVE HIM FULL PROTECTION.  FURTHERMORE, THE COURTS ALWAYS SIT TO
MAKE CERTAIN THAT THIS IS DONE. 

THE MAJORITY SAYS THAT THE FEINBERG LAW IS BAD BECAUSE IT HAS AN
"OVERBROAD SWEEP."  I REGRET TO SAY - AND I DO SO WITH DEFERENCE - THAT
THE MAJORITY HAS BY ITS BROADSIDE SWEPT AWAY ONE OF OUR MOST PRECIOUS
RIGHTS, NAMELY, THE RIGHT OF SELF-PRESERVATION.  OUR PUBLIC EDUCATIONAL
SYSTEM IS THE GENIUS OF OUR DEMOCRACY.  THE MINDS OF OUR YOUTH ARE
DEVELOPED THERE AND THE CHARACTER OF THAT DEVELOPMENT WILL DETERMINE
THE FUTURE OF OUR LAND.  INDEED, OUR VERY EXISTENCE DEPENDS UPON IT.
THE ISSUE HERE IS A VERY NARROW ONE.  IT IS NOT FREEDOM OF SPEECH,
FREEDOM OF THOUGHT, FREEDOM OF PRESS, FREEDOM OF ASSEMBLY, OR OF
ASSOCIATION EVEN IN THE COMMUNIST PARTY.  IT IS SIMPLY THIS:  MAY THE
STATE PROVIDE THAT ONE WHO, AFTER A HEARING WITH FULL JUDICIAL REVIEW,
IS FOUND TO HAVE WILFULLY AND DELIBERATELY ADVOCATED, ADVISED, OR
TAUGHT THAT OUR GOVERNMENT SHOULD BE OVERTHROWN BY FORCE OR VIOLENCE OR
OTHER UNLAWFUL MEANS; OR TO HAVE WILFULLY AND DELIBERATELY PRINTED,
PUBLISHED, ETC., ANY BOOK OR PAPER THAT SO ADVOCATED AND TO HAVE
PERSONALLY ADVOCATED SUCH DOCTRINE HIMSELF; OR TO HAVE WILFULLY AND
DELIBERATELY BECOME A MEMBER OF AN ORGANIZATION THAT ADVOCATES SUCH
DOCTRINE, IS PRIMA FACIE DISQUALIFIED FROM TEACHING IN ITS UNIVERSITY? 
MY ANSWER, IN KEEPING WITH ALL OF OUR CASES UP UNTIL TODAY, IS "YES"] 

I DISSENT. 
..END :





















BERENYI V. IMMIGRATION SERVICE 385 U.S. 630 


NO. 66.  ARGUED DECEMBER 5-6, 1966.  - DECIDED JANUARY 23, 1967.  - 352
F.2D 71, AFFIRMED. 


PETITIONER, AN ALIEN WHO ENTERED THIS COUNTRY FROM HUNGARY IN 1956,
FILED A PETITION FOR NATURALIZATION IN 1962.  IN CONNECTION THEREWITH,
HE DENIED UNDER OATH THAT HE HAD BEEN A MEMBER OF THE COMMUNIST PARTY,
OR THAT HE HAD BEEN CONNECTED OR ASSOCIATED WITH THE PARTY, EITHER
DIRECTLY OR INDIRECTLY.  THE ATTORNEY GENERAL OPPOSED THE PETITION AND
AT THE DISTRICT COURT HEARING PRODUCED TWO WITNESSES WHOSE TESTIMONY
INDICATED THAT PETITIONER HAD BEEN A PARTY MEMBER IN HUNGARY. 
PETITIONER DENIED PARTY MEMBERSHIP AND PRESENTED WITNESSES WHO
TESTIFIED TO HIS OPPOSITION TO COMMUNISM.  THE DISTRICT JUDGE FOUND
THAT PETITIONER BECAME A PARTY MEMBER IN 1945, REMAINED SO FOR A NUMBER
OF YEARS, ATTENDED PARTY MEETINGS, AND THAT PETITIONER HAD THUS
TESTIFIED FALSELY IN CONNECTION WITH HIS CITIZENSHIP APPLICATION. 
SINCE SECS. 101(F) AND 316(A) OF THE IMMIGRATION AND NATIONALITY ACT
PROVIDE THAT AN APPLICANT WHO GIVES SUCH FALSE TESTIMONY IS NOT "A
PERSON OF GOOD MORAL CHARACTER" WITHIN THE MEANING OF THE ACT, AND IS
THEREFORE INELIGIBLE FOR NATURALIZATION, THE COURT DENIED PETITIONER'S
CITIZENSHIP APPLICATION.  THE COURT OF APPEALS AFFIRMED.  PETITIONER
SEEKS REVERSAL OF THE JUDGMENT ON THE GROUNDS THAT THE FACTUAL
CONCLUSION OF HIS PARTY MEMBERSHIP WAS "CLEARLY ERRONEOUS," AND THAT
THE GOVERNMENT FAILED TO ESTABLISH THAT HIS PARTICIPATION IN THE PARTY
AMOUNTED TO "MEANINGFUL ASSOCIATION."  HELD: 

1.  THERE IS NO BASIS HERE FOR DISREGARDING THIS COURT'S POLICY THAT
IT "CANNOT UNDERTAKE TO REVIEW CONCURRENT FINDINGS OF FACT BY TWO
COURTS BELOW IN THE ABSENCE OF A VERY OBVIOUS AND EXCEPTIONAL SHOWING
OF ERROR."  GRAVER MFG. CO. V. LINDE CO., 336 U.S. 271, 275.  PP. 635
636. 

(A)  THERE WAS NO "VERY OBVIOUS AND EXCEPTIONAL" ERROR IN THE
CONCLUSION THAT PETITIONER HAD BEEN A PARTY MEMBER.  P. 635. 

(B)  THE POLICY HAS PARTICULAR FORCE WHEN, AS HERE, THE RESOLUTION OF
DISPUTED FACTUAL ISSUES TURNS LARGELY ON AN ASSESSMENT OF THE
CREDIBILITY OF WITNESSES WHO WERE OBSERVED ONLY BY THE TRIAL COURT.  P.
636. 

(C)  THIS COURT WILL NOT HESITATE TO UNDERTAKE INDEPENDENT
EXAMINATION OF FACTUAL ISSUES WHEN CONSTITUTIONAL CLAIMS MAY DEPEND ON
THEIR RESOLUTION, BUT NO CONSTITUTIONAL ISSUES ARE INVOLVED HERE.  P.
636. 

2.  IN NATURALIZATION PROCEEDINGS, AS DISTINGUISHED FROM DEPORTATION
OR DENATURALIZATION CASES WHERE THE GOVERNMENT MUST PROVE ITS CASE BY
CLEAR, UNEQUIVOCAL, AND CONVINCING EVIDENCE, THE BURDEN IS ON THE ALIEN
TO SHOW HIS ELIGIBILITY IN EVERY RESPECT.  PP. 636-638. 

3.  THE "MEANINGFUL ASSOCIATION" TEST FOR PARTY MEMBERS USED IN
DEPORTATION CASES IS NOT APPOSITE HERE, SINCE PETITIONER'S APPLICATION
WAS NOT DENIED FOR PARTY MEMBERSHIP BUT FOR FALSELY ANSWERING THE
QUESTION WHETHER HE HAD EVER BEEN "IN ANY WAY CONNECTED WITH, OR
ASSOCIATED WITH THE COMMUNIST PARTY EITHER DIRECTLY, OR INDIRECTLY," A
MATERIAL AND RELEVANT QUESTION.  PP. 637-638. 

BERENYI V. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

A PROVISION OF THE IMMIGRATION AND NATIONALITY ACT REQUIRES THAT AN
ALIEN WHO APPLIES FOR NATURALIZATION AS A UNITED STATES CITIZEN MUST
ESTABLISH THAT DURING THE FIVE YEARS PRECEDING THE FILING OF HIS
PETITION HE HAS BEEN "A PERSON OF GOOD MORAL CHARACTER."  (FN1)
ANOTHER PROVISION SPECIFIES THAT NO APPLICANT MAY BE FOUND TO BE A
PERSON OF GOOD MORAL CHARACTER WHO, WITHIN THAT PERIOD, "HAS GIVEN
FALSE TESTIMONY FOR THE PURPOSE OF OBTAINING ANY BENEFITS" UNDER THE
ACT.  (FN2) THE PETITIONER, AN ALIEN WHO ENTERED THIS COUNTRY FROM
HUNGARY IN 1956, FILED A PETITION FOR NATURALIZATION IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS IN 1962.  AT
THE FINAL HEARING THE ATTORNEY GENERAL APPEARED BY COUNSEL IN
OPPOSITION TO THE PETITION.  (FN3) FOLLOWING THIS HEARING THE DISTRICT
JUDGE DENIED THE PETITION, FINDING THAT THE PETITIONER HAD TESTIFIED
FALSELY TO FACILITATE HIS NATURALIZATION, AND THEREFORE COULD NOT,
UNDER THE LAW, BE FOUND TO BE A PERSON OF GOOD MORAL CHARACTER WITHIN
THE STATUTORY PERIOD.  (FN4)  THE COURT OF APPEALS AFFIRMED,  (FN5) AND
WE GRANTED CERTIORARI.  (FN6) 

DURING THE PREPARATION OF HIS APPLICATION TO FILE A PETITION FOR
NATURALIZATION, THE PETITIONER WAS ASKED THE FOLLOWING QUESTION:  "HAVE
YOU EVER, IN THE UNITED STATES OR IN ANY OTHER PLACE, (A) BEEN A MEMBER
OF, OR IN ANY OTHER WAY CONNECTED WITH, OR ASSOCIATED WITH THE
COMMUNIST PARTY EITHER DIRECTLY, OR INDIRECTLY THROUGH ANOTHER
ORGANIZATION, GROUP, OR PERSON?"  THE PETITIONER, UNDER OATH, ANSWERED
"NO."  ON TWO SUBSEQUENT OCCASIONS DURING THE PRELIMINARY PROCEEDINGS
ON HIS PETITION FOR NATURALIZATION, THE PETITIONER AGAIN SWORE THAT HE
HAD NEVER BEEN A MEMBER OF THE COMMUNIST PARTY. 

AT THE FINAL HEARING BEFORE THE DISTRICT JUDGE, THE GOVERNMENT
PRODUCED TWO WITNESSES WHOSE TESTIMONY INDICATED THAT THE PETITIONER
HAD BEEN A MEMBER OF THE COMMUNIST PARTY IN HUNGARY.  DR. PAL HALASZ
STATED THAT HE HAD KNOWN THE PETITIONER WHEN THEY WERE BOTH STUDENTS AT
THE UNIVERSITY OF BUDAPEST MEDICAL SCHOOL AND HAD SEEN THE PETITIONER
ATTEND COMMUNIST PARTY MEETINGS THERE ON ONE OR MORE OCCASIONS.  WHILE
SUCH MEETINGS WERE SOMETIMES OPEN TO PERSONS WHO WERE NOT PARTY
MEMBERS, AND DR. HALASZ WAS NOT SURE THAT THE PETITIONER WAS A PARTY
MEMBER, HIS ATTENDANCE AT PARTY MEETINGS GAVE DR. HALASZ THE IMPRESSION
THAT THE PETITIONER WAS A MEMBER.  DR. GYORGY KURY RELATED THAT HE HAD
ATTENDED A STUDY GROUP AT THE UNIVERSITY IN SEPTEMBER 1948.  THESE
GROUPS MET TO DISCUSS MARXIST-LENINIST IDEOLOGY, AND STUDENTS WERE
REQUIRED TO ATTEND REGARDLESS OF PARTY MEMBERSHIP.  ONE STUDENT IN EACH
GROUP WAS RESPONSIBLE FOR LEADING THIS DISCUSSION.  DR. KURY TESTIFIED
THAT, AT THE MEETING IN QUESTION, THE PETITIONER INTRODUCED HIMSELF AS
A MEMBER OF THE COMMUNIST PARTY AND THE STUDENT LEADER RESPONSIBLE FOR
THE GROUP'S IDEOLOGICAL EDUCATION.  DR. KURY FURTHER TESTIFIED THAT THE
PETITIONER HAD TOLD THE GROUP THAT HE HAD BECOME A MEMBER OF THE
COMMUNIST PARTY AFTER SOVIET TROOPS HAD OCCUPIED HUNGARY IN 1945. 

THE PETITIONER TESTIFIED THAT HE HAD NEVER BEEN A PARTY MEMBER OR THE
IDEOLOGICAL LEADER OF ANY STUDENT DISCUSSION GROUP.  HE RELATED THE
HEAVY PRESSURES ON STUDENTS AT THE UNIVERSITY TO ATTEND PARTY FUNCTIONS
AND BECOME MEMBERS, AND ADMITTED THAT THESE PRESSURES HAD LED HIM TO
ATTEND SOME OPEN PARTY MEETINGS AS A NONMEMBER, BUT ADDED THAT HE HAD
NOT BEEN AN ACTIVE PARTICIPANT AT THESE MEETINGS.  THE PETITIONER ALSO
EMPHASIZED HIS RELIGIOUS UPBRINGING AND OTHER FACTORS IN HIS PERSONAL
LIFE WHICH, HE CONTENDED, MADE IT UNLIKELY THAT HE WOULD BECOME A PARTY
MEMBER.  THE PETITIONER'S WIFE TESTIFIED THAT HE HAD NEVER BEEN A PARTY
MEMBER, AND FOUR OTHER WITNESSES STATED THAT, WHILE IN HUNGARY AND
AFTER HIS ARRIVAL IN THE UNITED STATES, THE PETITIONER HAD EXPRESSED
HIS STRONG OPPOSITION TO THE COMMUNIST PARTY AND THE COMMUNIST REGIME
IN HUNGARY. 

BASING HIS DECISION SOLELY ON HIS OWN EVALUATION OF THE TESTIMONY
ADDUCED AT THIS HEARING,  (FN7) THE DISTRICT JUDGE CONCLUDED THAT THE
PETITIONER HAD BECOME A PARTY MEMBER IN 1945 AND HAD REMAINED A MEMBER
FOR AN INDEFINITE NUMBER OF YEARS, THAT THE PETITIONER HAD ATTENDED
MEETINGS OF THE PARTY, AND THAT HE HAD INSTRUCTED STUDENT STUDY GROUPS
IN COMMUNIST IDEOLOGY.  ACCORDINGLY, THE COURT CONCLUDED THAT THE
PETITIONER HAD TESTIFIED FALSELY IN THE PRELIMINARY NATURALIZATION
PROCEEDINGS, AND DENIED HIS APPLICATION FOR CITIZENSHIP ON THE GROUND
THAT HE WAS, THEREFORE, "NOT A PERSON OF GOOD MORAL CHARACTER WITHIN
THE MEANING OF THE IMMIGRATION AND NATIONALITY ACT."  (FN8) 

THE PETITIONER ASKS US TO REJECT AS "CLEARLY ERRONEOUS" THE FACTUAL
CONCLUSION ABOUT HIS PARTY MEMBERSHIP REACHED BY THE DISTRICT JUDGE AND
ACCEPTED BY THE COURT OF APPEALS.  IN ORDER TO DO SO, WE WOULD BE
FORCED TO DISREGARD THIS COURT'S REPEATED PRONOUNCEMENTS THAT IT
"CANNOT UNDERTAKE TO REVIEW CONCURRENT FINDINGS OF FACT BY TWO COURTS
BELOW IN THE ABSENCE OF A VERY OBVIOUS AND EXCEPTIONAL SHOWING OF
ERROR."  E.G., GRAVER MFG. CO. V. LINDE CO., 336 U.S. 271, 275.  FOR
THERE WAS NO "VERY OBVIOUS AND EXCEPTIONAL" ERROR IN THE CONCLUSION OF
THE TWO COURTS BELOW THAT THE PETITIONER HAD BEEN A MEMBER OF THE
COMMUNIST PARTY.  THE TESTIMONY OF DR. KURY GAVE A CONCRETE BASIS FOR
THIS CONCLUSION, AND THAT OF DR. HALASZ LENT IT FURTHER EVIDENTIARY
SUPPORT.  THE CONCLUSION OF THE COURTS BELOW IS NOT INCONSISTENT WITH
THE POSSIBILITY THAT THE PETITIONER MAY HAVE HARBORED A STRONG
OPPOSITION TO THE PARTY WHICH HE BARED TO HIS FRIENDS.  FOR THE
PETITIONER MAY HAVE MERELY JOINED THE PARTY AS A NOMINAL MEMBER IN
DEFERENCE TO THE STRONG PRESSURES WHICH THE PARTY EXERTED ON STUDENTS
TO BECOME MEMBERS, PRESSURES WHICH SEVERAL WITNESSES, INCLUDING THE
PETITIONER HIMSELF, RECITED IN DETAIL. 

THE POLICY UNDERLYING THE "TWO-COURT" RULE IS OBVIOUS.  THIS COURT
POSSESSES NO EMPIRICAL EXPERTISE TO SET AGAINST THE CAREFUL AND
REASONABLE CONCLUSIONS OF LOWER COURTS ON PURELY FACTUAL ISSUES.  WHEN,
AS HERE, RESOLUTION OF THE DISPUTED FACTUAL ISSUES TURNS LARGELY ON AN
ASSESSMENT OF THE RELATIVE CREDIBILITY OF WITNESSES WHOSE TESTIMONIAL
DEMEANOR WAS OBSERVED ONLY BY THE TRIAL COURT, THE RULE HAS PARTICULAR
FORCE.  TO BE SURE, THIS COURT HAS NOT HESITATED TO UNDERTAKE
INDEPENDENT EXAMINATION OF FACTUAL ISSUES WHEN CONSTITUTIONAL CLAIMS
MAY DEPEND ON THEIR RESOLUTION.   SEE, E.G., NAPUE V. ILLINOIS, 360
U.S. 264, 271-272; FISKE V. KANSAS, 274 U.S. 380, 385-386.  CF. HOFFA
V. UNITED STATES, ANTE, P. 293.  BUT THIS EXCEPTIONAL DOCTRINE HAS NO
APPLICATION TO THE PRESENT CASE, FOR THE PETITIONER MAKES NO CLAIM THAT
ANY CONSTITUTIONAL ISSUES ARE INVOLVED HERE. 

DIFFERENT CONSIDERATIONS DO NOT GOVERN MERELY BECAUSE THIS IS A
NATURALIZATION CASE.  WHEN THE GOVERNMENT SEEKS TO STRIP A PERSON OF
CITIZENSHIP ALREADY ACQUIRED,  (FN9) OR DEPORT A RESIDENT ALIEN AND
SEND HIM FROM OUR SHORES,  (FN10) IT CARRIES THE HEAVY BURDEN OF
PROVING ITS CASE BY "CLEAR, UNEQUIVOCAL, AND CONVINCING EVIDENCE." 
(FN11)  BUT WHEN AN ALIEN SEEKS TO OBTAIN THE PRIVILEGES AND BENEFITS
OF CITIZENSHIP, THE SHOE IS ON THE OTHER FOOT.  HE IS THE MOVING PARTY,
AFFIRMATIVELY ASKING THE GOVERNMENT TO ENDOW HIM WITH ALL THE
ADVANTAGES OF CITIZENSHIP.  BECAUSE THAT STATUS, ONCE GRANTED, CANNOT
LIGHTLY BE TAKEN AWAY, THE GOVERNMENT HAS A STRONG AND LEGITIMATE
INTEREST IN ENSURING THAT ONLY QUALIFIED PERSONS ARE GRANTED
CITIZENSHIP.  FOR THESE REASONS, IT HAS BEEN UNIVERSALLY ACCEPTED THAT
THE BURDEN IS ON THE ALIEN APPLICANT TO SHOW HIS ELIGIBILITY FOR
CITIZENSHIP IN EVERY RESPECT.  THIS COURT HAS OFTEN STATED THAT DOUBTS
"SHOULD BE RESOLVED IN FAVOR OF THE UNITED STATES AND AGAINST THE
CLAIMANT."  E.G., UNITED STATES V. MACINTOSH, 283 U.S. 605, 626. 

THE PETITIONER POINTS OUT THAT IN DEPORTATION CASES THIS COURT HAS
HELD THAT AN ALIEN MAY NOT BE EXPELLED FROM THIS COUNTRY ON THE GROUND
THAT HE HAS BEEN A MEMBER OF THE COMMUNIST PARTY UNLESS HIS
PARTICIPATION IN THE PARTY AMOUNTED TO "MEANINGFUL ASSOCIATION." 
ROWOLDT V. PERFETTO, 355 U.S. 115; GASTELUM-QUINONES V. KENNEDY, 374
U.S. 469.  HE CONTENDS THAT THE SAME RULE SHOULD APPLY IN THE CONTEXT
OF NATURALIZATION, AND THAT THE GOVERNMENT'S PROOF IN THIS CASE FAILED
TO ESTABLISH "MEANINGFUL ASSOCIATION."  BUT THE PETITIONER'S
APPLICATION WAS NOT DENIED BECAUSE OF HIS COMMUNIST PARTY MEMBERSHIP. 
(FN12)  IT WAS DENIED BECAUSE, UNDER OATH, HE DID NOT TELL THE TRUTH. 
THE PETITIONER WAS NOT ASKED WHETHER HE HAD BEEN "MEANINGFULLY
ASSOCIATED" WITH THE COMMUNIST PARTY.  NOR WAS THE INQUIRY LIMITED TO
PARTY MEMBERSHIP.  HE WAS POSED THE MUCH BROADER QUESTION WHETHER HE
HAD EVER "BEEN A MEMBER OF, OR IN ANY OTHER WAY CONNECTED WITH, OR
ASSOCIATED WITH THE COMMUNIST PARTY EITHER DIRECTLY, OR INDIRECTLY
THROUGH ANOTHER ORGANIZATION, GROUP, OR PERSON."  THE DISTRICT COURT
COULD RIGHTLY HAVE FOUND THAT THE PETITIONER HAD NOT TOLD THE TRUTH
WHEN HE ANSWERED THIS QUESTION IN THE NEGATIVE IF HE HAD NOT BEEN AN
ACTUAL MEMBER, OR HIS MEMBERSHIP HAD BEEN ONLY NOMINAL. 

EVEN ASSUMING THAT AN ALIEN MAY BE DENIED CITIZENSHIP ON THE
STATUTORY GROUND OF PARTY MEMBERSHIP ONLY WHEN "MEANINGFUL ASSOCIATION"
IS SHOWN, THE BROADER QUESTION ASKED OF THE PETITIONER WAS CERTAINLY
MATERIAL AND RELEVANT.  THE GOVERNMENT IS ENTITLED TO KNOW OF ANY FACTS
THAT MAY BEAR ON AN APPLICANT'S STATUTORY ELIGIBILITY FOR CITIZENSHIP,
SO THAT IT MAY PURSUE LEADS AND MAKE FURTHER INVESTIGATION IF DOUBTS
ARE RAISED.  THE PETITIONER HAS NEVER INDICATED THAT HE WAS CONFUSED OR
MISLED BY THE SCOPE OF THE QUESTION - THAT HE BELIEVED AT THE TIME IT
WAS ASKED THAT THE QUESTION REACHED ONLY "MEANINGFUL ASSOCIATION." 

WE CANNOT SAY THAT THE DISTRICT COURT WAS WRONG IN FINDING THAT THE
PETITIONER HAD FAILED TO TELL THE TRUTH.  IT FOLLOWS THAT THE COURT OF
APPEALS WAS NOT IN ERROR IN DECLINING TO UPSET THAT FINDING. 
AFFIRMED. 

FN1  SECTION 316(A) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952,
66 STAT. 242, 8 U.S.C. SEC. 1427(A), PROVIDES: 

"NO PERSON, EXCEPT AS OTHERWISE PROVIDED IN THIS TITLE, SHALL BE
NATURALIZED UNLESS SUCH PETITIONER, (1) IMMEDIATELY PRECEDING THE DATE
OF FILING HIS PETITION FOR NATURALIZATION HAS RESIDED CONTINUOUSLY,
AFTER BEING LAWFULLY ADMITTED FOR PERMANENT RESIDENCE, WITHIN THE
UNITED STATES FOR AT LEAST FIVE YEARS AND DURING THE FIVE YEARS
IMMEDIATELY PRECEDING THE DATE OF FILING HIS PETITION HAS BEEN
PHYSICALLY PRESENT THEREIN FOR PERIODS TOTALING AT LEAST HALF OF THAT
TIME, AND WHO HAS RESIDED WITHIN THE STATE IN WHICH THE PETITIONER
FILED THE PETITION FOR AT LEAST SIX MONTHS, (2) HAS RESIDED
CONTINUOUSLY WITHIN THE UNITED STATES FROM THE DATE OF THE PETITION UP
TO THE TIME OF ADMISSION TO CITIZENSHIP, AND (3) DURING ALL THE PERIODS
REFERRED TO IN THIS SUBSECTION HAS BEEN AND STILL IS A PERSON OF GOOD
MORAL CHARACTER, ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE
UNITED STATES, AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE
UNITED STATES." 

FN2  SECTION 101(F), 66 STAT. 172, 8 U.S.C. SEC. 1101(F): 

"FOR THE PURPOSES OF THIS ACT - NO PERSON SHALL BE REGARDED AS, OR
FOUND TO BE, A PERSON OF GOOD MORAL CHARACTER WHO, DURING THE PERIOD
FOR WHICH GOOD MORAL CHARACTER IS REQUIRED TO BE ESTABLISHED, IS, OR
WAS -  ...  (6) ONE WHO HAS GIVEN FALSE TESTIMONY FOR THE PURPOSE OF
OBTAINING ANY BENEFITS UNDER THIS ACT  ...  ." 

FN3  SUCH AN APPEARANCE IS AUTHORIZED BY SEC. 336(D) OF THE ACT, 66
STAT. 258, 8 U.S.C.  SEC. 1447(D). 

FN4  239 F. SUPP. 725. 

FN5  352 F.2D 71.  THE COURT OF APPEALS REFERRED TO RULE 52, FED.
RULES CIV. PROC., WHICH PROVIDES IN RELEVANT PART: 

"FINDINGS BY THE COURT.  (A) EFFECT  ...  .  FINDINGS OF FACT SHALL
NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, AND DUE REGARD SHALL BE
GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO JUDGE OF THE CREDIBILITY
OF THE WITNESSES." 

FN6  384 U.S. 903. 

FN7  A PRELIMINARY EXAMINATION ON THE PETITIONER'S APPLICATION FOR
CITIZENSHIP WAS HELD BEFORE A NATURALIZATION EXAMINER, WHO TRANSMITTED
HIS FINDINGS AND RECOMMENDATIONS TO THE DISTRICT JUDGE, ALL PURSUANT TO
SEC 335 OF THE ACT, 66 STAT. 255, 8 U.S.C. SEC 1446.  BUT AT THE FINAL
HEARING BEFORE THE DISTRICT COURT, THE JUDGE HEARD TESTIMONY AND
CONDUCTED AN INDEPENDENT HEARING IN ACCORDANCE WITH SEC. 336(B) OF THE
ACT, 66 STAT. 257, 8 U.S.C. SEC. 1447(B), AND EXPLICITLY DECLINED TO
RELY ON ANY OF THE PRELIMINARY EXAMINATION MATERIALS IN REACHING HIS
CONCLUSION.  239 F. SUPP., AT 727. 

FN8  AT THE SAME TIME, THE JUDGE FOUND THE EVIDENCE TOO WEAK TO
ESTABLISH THE GOVERNMENT'S ALTERNATIVE CONTENTION THAT THE PETITIONER'S
APPLICATION SHOULD BE DENIED BECAUSE HE HAD BEEN A PARTY MEMBER WITHIN
10 YEARS PRECEDING HIS APPLICATION FOR CITIZENSHIP IN 1962, AND THUS
CAME WITHIN SEC 313 OF THE ACT, 66 STAT. 240, 8 U.S.C. SEC 1424, WHICH
PROVIDES IN RELEVANT PART: 

"(A)  ...  NO PERSON SHALL HEREAFTER BE NATURALIZED AS A CITIZEN OF
THE UNITED STATES -           *         *         *         *
* 

"(2)  WHO IS A MEMBER OF OR AFFILIATED WITH  ...  (D) THE COMMUNIST
OR OTHER TOTALITARIAN PARTY ...  OF ANY FOREIGN STATE  ...  . 

    *         *         *         *         * 

"(C)  THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO ANY
APPLICANT FOR NATURALIZATION WHO AT ANY TIME WITHIN A PERIOD OF TEN
YEARS IMMEDIATELY PRECEDING THE FILING OF THE PETITION FOR
NATURALIZATION OR AFTER SUCH FILING AND BEFORE TAKING THE FINAL OATH OF
CITIZENSHIP IS, OR HAS BEEN FOUND TO BE WITHIN ANY OF THE CLASSES
ENUMERATED WITHIN THIS SECTION, NOTWITHSTANDING THAT AT THE TIME THE
PETITION IS FILED HE MAY NOT BE INCLUDED WITH SUCH CLASSES." 

FN9  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118; NOWAK V. UNITED
STATES, 356 U.S. 660; CHAUNT V. UNITED STATES, 364 U.S. 350. 

FN10  WOODBY V. IMMIGRATION AND NATURALIZATION SERVICE, ANTE, P.
276. 

FN11  THE GOVERNMENT HAS NOT SOUGHT TO DEPORT THE PETITIONER BECAUSE
OF HIS AFFILIATIONS WITH THE COMMUNIST PARTY, AND TO DO SO IT WOULD BE
REQUIRED TO PROVE BY "CLEAR, UNEQUIVOCAL, AND CONVINCING EVIDENCE,"
WOODBY V. IMMIGRATION AND NATURALIZATION SERVICE, SUPRA, AT 286, THAT
THE PETITIONER HAD BEEN A PARTY MEMBER WHO WAS "MEANINGFULLY
ASSOCIATED" WITH IT, ROWOLDT V. PERFETTO, 355 U.S. 115; GASTELUM
QUINONES V. KENNEDY, 374 U.S. 469.  THE GOVERNMENT'S EVIDENCE IN THIS
CASE FELL CLEARLY SHORT OF SUCH A SHOWING.  CF. N.8, SUPRA. 

FN12  THE DISTRICT COURT SPECIFICALLY REFUSED TO ACCEPT THE
GOVERNMENT'S CONTENTION THAT THE PETITIONER WAS INELIGIBLE FOR
NATURALIZATION UNDER THE STATUTORY PROVISIONS BARRING COMMUNIST PARTY
MEMBERS FROM CITIZENSHIP.  SEE N.8, SUPRA. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

IN THIS CASE WE ARE CONFRONTED WITH THE SPECTACLE OF A PERSON
ADMITTEDLY LOYAL TO THE UNITED STATES, AND CONCEDEDLY OPPOSED TO
COMMUNISM BEING DENIED NATURALIZATION BECAUSE THE DISTRICT COURT FOUND
THAT HE WAS NOT A "PERSON OF GOOD MORAL CHARACTER."  THIS FINDING WAS
IN TURN BASED UPON A SUBSIDIARY FINDING THAT PETITIONER HAD, IN THE
REMOTE PAST, BEEN A MEMBER OF THE HUNGARIAN COMMUNIST PARTY, AND HAD
THEREFORE LIED WHEN HE STATED THAT HE HAD NEVER BEEN A MEMBER OF THAT
PARTY.  THE "EVIDENCE" UPON WHICH THE CRUCIAL FINDING OF COMMUNIST
MEMBERSHIP WAS BASED WAS SLIM, AMBIGUOUS, AND EQUIVOCAL; AND WHEN
COMPARED WITH THE OVERWHELMING EVIDENCE ADDUCED BY PETITIONER, IT IS
APPARENT THAT THE FINDING WAS CLEARLY ERRONEOUS. 

THE GOVERNMENT'S CASE WAS DEPENDENT UPON THE TESTIMONY OF TWO
WITNESSES.  DR. PAL HALASZ TESTIFIED THAT HE HAD ATTENDED MEDICAL
SCHOOL IN HUNGARY WITH PETITIONER.  HE DID NOT ATTEND CLASSES WITH
PETITIONER SINCE HE WAS A NUMBER OF YEARS BEHIND.  THE TOTAL ENROLLMENT
OF THE SCHOOL WAS BETWEEN 1,800 AND 2,000.  HE DID NOT KNOW PETITIONER
SOCIALLY, BUT DID TALK TO PETITIONER AND "SEVERAL TIMES" PETITIONER
HELPED HALASZ WITH HIS STUDIES.  HALASZ WAS A MEMBER OF THE COMMUNIST
PARTY, HE "BELIEVED" BETWEEN 1948 AND 1956.  HE COULD NOT SAY HOW OFTEN
HE ATTENDED MEETINGS.  (FN1) ACCORDING TO HALASZ, HE SAW PETITIONER AT
SOME COMMUNIST PARTY MEETINGS, BUT HE DID NOT KNOW HOW OFTEN.  HE
"THOUGHT" IT WAS MORE THAN ONCE.  HE DID NOT KNOW WHAT TRANSPIRED AT
THE MEETINGS, NOR DID HE KNOW WHETHER THE PARTICULAR MEETINGS WERE OPEN
TO NONPARTY MEMBERS OR WERE OPEN TO ALL.  MOST OF THE MEETINGS WERE
OPEN TO NONPARTY MEMBERS AND NONMEMBERS WERE ENCOURAGED TO ATTEND.  IF
THEY DID NOT, THEY TOOK THE RISK OF RETRIBUTION.  WHEN NONMEMBERS
ATTENDED THE MEETINGS, THEY WERE NOT IDENTIFIED AS NONMEMBERS.  HALASZ
HAD NEVER SEEN PETITIONER DISPLAY A MEMBERSHIP CARD, ALTHOUGH HE HAD
BEEN THE DOORKEEPER AT SEVERAL MEETINGS.  HE ADMITTED THAT PETITIONER
WAS NOT A "COMMUNIST IN HEART," AND THAT IF HE SAID SOMETHING WITH
RESPECT TO COMMUNISM "IT WASN'T FOR THE FAVOR OF THE COMMUNISTS."  HE
ASSUMED THAT PETITIONER WAS A PARTY MEMBER BECAUSE HE HAD SEEN HIM AT
SOME MEETINGS. 

THE SECOND GOVERNMENT WITNESS WAS DR. GYORGY KURY WHO HAD BEEN IN THE
SAME MEDICAL CLASS WITH PETITIONER FOR ONE YEAR.  THE MOST THAT THIS
WITNESS COULD COME UP WITH WAS THAT HE HAD ATTENDED AN IDEOLOGICAL
INDOCTRINATION SESSION REQUIRED TO BE ATTENDED BY ALL STUDENTS, MEMBERS
AND NONMEMBERS ALIKE.  AT THAT SESSION, HE HEARD PETITIONER STATE THAT
HE WAS THE SESSION LEADER AND THAT HE HAD JOINED THE PARTY AFTER THE
SOVIET OCCUPATION OF HUNGARY IN 1945.  HE DID NOT REMEMBER WHO HAD
ATTENDED THE MEETING OR EXACTLY WHAT PETITIONER HAD SAID.  THAT WAS HIS
ONLY CONTACT WITH PETITIONER.  EXCEPT FOR THIS ONE OCCASION, KURY HAD
NEVER HEARD PETITIONER SAY THAT HE WAS OR HAD BEEN A COMMUNIST. 

THIS WAS THE ONLY EVIDENCE THE GOVERNMENT ADDUCED TO SHOW THAT
PETITIONER HAD BEEN A MEMBER OF THE COMMUNIST PARTY.  THE ABUNDANCE OF
EVIDENCE PRODUCED BY PETITIONER CAN ONLY BE BRIEFLY SUMMARIZED. 
PETITIONER UNEQUIVOCALLY TESTIFIED UNDER OATH THAT HE HAD NEVER BEEN A
MEMBER OF THE COMMUNIST PARTY AND HAD NEVER ATTENDED A CLOSED MEETING. 
HE DID ATTEND OPEN MEETINGS TO WHICH HE HAD BEEN INVITED AND AT WHICH
OTHER NON-COMMUNISTS WERE PRESENT.  (FN2)  THE INVITATION WAS
TANTAMOUNT TO AN ORDER, AND NONATTENDANCE WOULD RESULT IN SERIOUS
CONSEQUENCES.  ATTENDANCE OF BERENYI AT AN OPEN MEETING IS THE MOST
THAT IS SHOWN.  PLAINLY THAT IS NOT SUFFICIENT TO SHOW THAT HE EVER HAD
"BEEN A MEMBER OF, OR IN ANY OTHER WAY CONNECTED WITH, OR ASSOCIATED
WITH THE COMMUNIST PARTY" - UNLESS AS PART OF THE COLD WAR TECHNIQUE
WORDS ARE TO BE TURNED INTO TRAPS TO CATCH THE INNOCENT.  AND KURY'S
VAGUE MEMORY THAT PETITIONER HAD JOINED THE COMMUNIST PARTY IS BELIED
BY EVERY FACET OF PETITIONER'S CHARACTER AS REVEALED BY A READING OF
THIS RECORD. 

DURING THE HUNGARIAN UPRISING IN OCTOBER AND NOVEMBER OF 1956,
PETITIONER WAS A MEMBER OF THE HUNGARIAN ARMY, WHICH HE HAD JOINED IN
ORDER TO OBTAIN FINANCES TO COMPLETE HIS MEDICAL EDUCATION.  COMMUNIST
MEMBERSHIP WAS NOT A CONDITION FOR SERVING IN THE ARMY.  HIS UNIT
FOUGHT THE RUSSIANS, AND PETITIONER WAS ON DUTY TREATING PEOPLE WHO
WERE WOUNDED IN FIGHTING. 

HE MARRIED A WOMAN WHOSE FAMILY'S PROPERTY HAD BEEN CONFISCATED BY
THE COMMUNIST GOVERNMENT; HIS WIFE'S FAMILY LEFT HUNGARY TO ESCAPE THE
COMMUNIST REGIME.  HIS WIFE TESTIFIED THAT SHE HATED COMMUNISM AND THE
COMMUNIST GOVERNMENT OF HUNGARY. 

IN 1956, PETITIONER AND HIS WIFE FLED THE COMMUNIST REGIME, MAKING
THEIR ESCAPE AT GREAT PERSONAL RISK.  PETITIONER TESTIFIED WITHOUT
EQUIVOCATION TO HIS OPPOSITION TO COMMUNISM, HIS LOYALTY AND ATTACHMENT
TO THE UNITED STATES AND HIS WILLINGNESS TO FIGHT AND BEAR ARMS IN THE
DEFENSE OF THIS COUNTRY.  HE ABSOLUTELY DENIED MAKING THE STATEMENT
ATTRIBUTED TO HIM BY KURY.  AFTER HIS ESCAPE, PETITIONER RESUMED HIS
MEDICAL CAREER IN THIS COUNTRY, IS ASSOCIATED WITH A NUMBER OF
HOSPITALS AND HAS BEEN A SENIOR INSTRUCTOR ON THE STAFF OF THE TUFTS
MEDICAL SCHOOL. 

PETITIONER'S WIFE TESTIFIED THAT BOTH SHE AND PETITIONER HATED
COMMUNISM AND THE HUNGARIAN COMMUNIST GOVERNMENT, AND WHILE IN HUNGARY
CONSTANTLY WANTED TO LEAVE THE COUNTRY FOR FREEDOM.  LORAND DE BICKISH,
A FORMER HUNGARIAN NATIONAL WHO IS NOW A NATURALIZED UNITED STATES
CITIZEN, ALSO TESTIFIED ON PETITIONER'S BEHALF.  DE BICKISH WAS AN
AVOWED ANTI-COMMUNIST WHO HAD BEEN ARRESTED TWICE AND IMPRISONED ONCE
FOR ATTEMPTING TO ESCAPE FROM THE HUNGARIAN COMMUNIST GOVERNMENT.  HE
TESTIFIED THAT HE HAD BEEN EXILED TO A SMALL TOWN IN HUNGARY BECAUSE
HIS BROTHER WAS A BROADCASTER FOR RADIO FREE EUROPE.  DURING HIS EXILE,
PETITIONER AND HIS WIFE WERE THE ONLY PEOPLE TO VISIT HIM.   PETITIONER
OFTEN VOICED HIS OPPOSITION TO COMMUNISM AND THE HUNGARIAN GOVERNMENT. 
HE AND PETITIONER OFTEN SECRETLY LISTENED TO RADIO FREE EUROPE AND THE
VOICE OF AMERICA, AND TALKED OF LEAVING HUNGARY AND ESCAPING TO
FREEDOM. 

TWO OTHER WITNESSES TESTIFIED THAT WHILE IN HUNGARY PETITIONER HAD
OFTEN EXPRESSED HIS OPPOSITION TO COMMUNISM AND THE HUNGARIAN
GOVERNMENT AND HIS DESIRE TO ESCAPE TO A FREE COUNTRY.  THEY TESTIFIED
THAT, WHILE IN THE UNITED STATES, PETITIONER FREQUENTLY EXPRESSED HIS
GRATITUDE AT BEING HERE, AND HIS LOVE FOR THE UNITED STATES AND THE
FREEDOM IT OFFERED.  IT WAS STIPULATED THAT YET ANOTHER WITNESS WOULD
TESTIFY THAT PETITIONER OPPOSED COMMUNISM AND WAS ATTACHED TO THE
PRINCIPLES OF THE CONSTITUTION. 

THUS WE ARE CONFRONTED WITH THE CURIOUS PROPOSITION THAT THE
SPECULATIONS OF ONE WITNESS, AND THE HAZY MEMORY OF ANOTHER WITNESS AS
TO A STATEMENT MADE IN THE DISTANT PAST, CAN OUTWEIGH THE OVERWHELMING
EVIDENCE ADDUCED BY PETITIONER, AND THEREBY PREVENT HIS
NATURALIZATION.  TO ME THIS IS TANTAMOUNT TO SAYING THAT THE GOVERNMENT
CAN MERELY THROW A VERY SLIM DOUBT INTO THE CASE, AND DENY
NATURALIZATION WHEN THE APPLICANT FAILS TO DISPROVE THE EPHEMERAL
DOUBT.  IT IS NO ANSWER TO SAY THAT THE APPLICANT IN A NATURALIZATION
PROCEEDING BEARS THE BURDEN OF SHOWING HIS ELIGIBILITY FOR
CITIZENSHIP.  THE CRUCIAL QUESTION IS WHAT THE APPLICANT MUST DO
SUCCESSFULLY TO BEAR HIS BURDEN OF PERSUASION.  NOR IS IT AN ANSWER TO
SAY THAT DOUBTS SHOULD BE RESOLVED IN FAVOR OF THE UNITED STATES AND
AGAINST THE APPLICANT.  THE QUESTION IS WHETHER A "DOUBT" IS PRESENT TO
BE RESOLVED.  MUST THE APPLICANT TILT WITH EVERY WINDMILL THROWN IN HIS
PATH BY THE GOVERNMENT?  IN THIS CASE, THERE WAS NO "DOUBT" TO BE
RESOLVED IN THE GOVERNMENT'S FAVOR.  IF THE GOVERNMENT'S SKETCHY
EVIDENCE DID RAISE A DOUBT, THE DOUBT WAS CLEARLY DISPELLED BY THE
OVERWHELMING EVIDENCE ADDUCED BY PETITIONER.  THE PETITIONER DID CARRY
HIS BURDEN OF PROOF AND HIS BURDEN OF PERSUASION.  THE CONCURRENT
FINDINGS OF TWO LOWER COURTS ARE NOT SACROSANCT; THE "TWO COURT
FINDING" RULE IS NO TALISMAN PREVENTING THIS COURT FROM EXERCISING THE
DUTIES WITH WHICH IT IS CHARGED.  THIS COURT CAN REVIEW CONCURRENT
FINDINGS WHERE THERE IS "A VERY OBVIOUS AND EXCEPTIONAL SHOWING OF
ERROR."  GRAVER MFG. CO. V. LINDE CO., 336 U.S. 271, 275.  THIS IS SUCH
A CASE. 

FN1  NOR COULD HALASZ REMEMBER WHETHER HE HAD MADE A STATEMENT TO THE
NATURALIZATION SERVICE INSPECTOR UNDER OATH. 

FN2  THE DIFFERENCE BETWEEN THE SO-CALLED CLOSED MEETING AND THE OPEN
MEETING IS DESCRIBED IN THE TESTIMONY WHICH I HAVE ATTACHED AS AN
APPENDIX TO THIS OPINION.  FROM THAT IT APPEARS THAT NONPARTY MEMBERS
WERE INVITED AT TIMES EVEN TO CLOSED MEETINGS. 

            APPENDIX TO OPINION OF

MR. JUSTICE DOUGLAS, DISSENTING. 

PAL HALASZ, THE CHIEF WITNESS AGAINST PETITIONER IN THE DISTRICT
COURT, TESTIFIED AS FOLLOWS: 

"Q.  DID YOU EVER SEE A CARD SHOWING THAT DR. KALMAN BERENYI WAS A
MEMBER OF THE COMMUNIST PARTY? 

"A.  NO. I NEVER HAVE SEEN A CARD. 

"Q.  DID HE EVER TELL YOU OR ADMIT TO YOU THAT HE WAS A MEMBER OF THE
COMMUNIST PARTY? 

"A.  NO. 

"Q.  DID HE IN ANY WAY PARTICIPATE IN THESE SO-CALLED MEETINGS OF ANY
KIND? 

"A.  YES. 

"Q.  IN WHAT WAY? 

"A.  WELL, HE HAD TO BE THERE. 

"Q.  WELL, OTHER THAN PUT HIS BODY INTO A CHAIR AND TO SIT DOWN AT
THAT MEETING DID HE DO ANYTHING ELSE? 

"A.  I CAN'T RECALL. 

"Q.  NOW ISN'T IT A FACT THAT THERE WERE MANY NON-COMMUNISTS WHO WERE
CALLED TO THESE MEETINGS? 

"A.  YES. 

"Q.  AND WOULD YOU SAY OUT OF A CLASS OR GROUP OF 40 PEOPLE, HOW MANY
WOULD BE NONCOMMUNISTS? 

"A.  I DON'T KNOW.  IT DEPENDS.  WELL, FROM 40 PEOPLE COULD BE 23 OR
24, MAYBE, NOT COMMUNISTS ...  . 

"Q.  ...  BUT IN THIS GROUP THAT YOU REFERRED TO WHERE YOU CLAIM YOU
SAW DR. KALMAN BERENYI HOW MANY PEOPLE WOULD BE PRESENT? 

"A.  WELL, I WOULD SAY ABOUT 120-150 PEOPLE. 

     *         *         *    *         * 

"Q.  DO YOU KNOW FOR A FACT, SIR, THE KALMAN BERENYI KNEW IT TO BE A
COMMUNIST PARTY MEETING ON THE OCCASIONS WHEN HE DID ATTEND IT,
ACCORDING TO YOUR TESTIMONY? 

"A.  YOU ASK ME IF HE KNEW THAT WAS A COMMUNIST PARTY MEETING GOING
ON.  WELL, I DON'T KNOW IF HE WAS TOLD OR NOT. 

"Q.  NOW ISN'T IT A FACT ALSO THAT AT THESE SO-CALLED MEETINGS
INDOCTRINATION TOOK PLACE, TRYING TO CONVERT AND INDUCE NONCOMMUNISTS
TO JOIN? 

"A.  CERTAINLY. 

     *         *         *    *         * 

"Q.  DID YOU EVER SEE A COMMUNIST PARTY BOOK IN THE POSSESSION OF DR.
KALMAN BERENYI? 

"A.  NO, I DID NOT. 

"Q.  AND DID YOU KNOW FROM YOUR PARTY RECORDS, IF YOU KNOW OF ANY,
THAT HE WAS LISTED AS A COMMUNIST PARTY MEMBER? 

"A.  I NEVER HAVE SEEN SUCH A PARTY RECORD. 

"Q.  NOW, DR. HALASZ, ON DIRECT EXAMINATION YOU TESTIFIED THAT HE
ATTENDED THESE MEETINGS WHICH YOU CALLED COMMUNIST PARTY MEETINGS? 

"A.  YES. 

"Q.  CAN YOU TELL US WITH SOME DEGREE OF CERTAINTY AS TO HOW MANY
MEETINGS YOU SAW DR. BERENYI AT?

"A.  NO, I CAN'T TELL THAT.  POSSIBLE I SEE HIM MAYBE TWO OR THREE
TIMES. 

"Q.  POSSIBLY? 

"A.  THAT IS ALL. 

"Q.  AND IT COULD HAVE BEEN ONCE? 

"A.  IT COULD BE MORE OR IT COULD BE ONCE? 

"Q.  YOU KEPT NO RECORDS ON IT? 

"A.  NO. 

"Q.  AND HE WAS NOT ACTIVE IN ANYTHING?  HE JUST SAT THERE? 

"A.  OH, HE WAS ACTIVE, HELPING THE REST OF THE STUDENTS TO STUDY HIS
MEDICAL SCIENCE. 

"Q.  BUT AT THE SO-CALLED MEETINGS ONCE, TWICE OR THREE TIMES HE
NEVER SAID A WORD, IS THAT RIGHT? 

"A.  NO. UNLESS HE WAS STRAIGHT ASKED BECAUSE IT CAN HAPPEN THAT
SOMEBODY WAS ASKED STRAIGHT ABOUT CERTAIN THINGS. 

     *    *         *         *         * 

"Q.  DO YOU KNOW WHETHER DR. BERENYI ATTENDED OPEN OR CLOSED
MEETINGS? 

"A.  I CAN'T RECALL. 

"Q.  DID YOU EVER HAVE ANY DISCUSSIONS WITH DR. BERENYI CONCERNING
HIS BELIEFS IN COMMUNISM OR THE PRINCIPLES OF COMMUNISM? 

"A.  OH, SOMETIMES CERTAIN THINGS CAME UP, CERTAIN QUESTIONS.  HE
DIDN'T SAY TOO MUCH; AND IF HE SAID SOMETHING, IT WASN'T FOR THE FAVOR
OF THE COMMUNISTS.           *         *         *         *         * 

"Q.  AND AS A RESULT OF YOUR TALK WITH KALMAN BERENYI, COULD YOU TELL
THIS COURT WHAT HIS FEELINGS WERE TOWARDS COMMUNISM? 

"A.  I DON'T BELIEVE HE WAS A COMMUNIST, EVEN IF HE WAS A MEMBER OF
THE COMMUNIST PARTY.  I DON'T BELIEVE HE WAS COMMUNIST IN HEART. 

     *         *         *         *         * 

"Q.  DO YOU ASSERT THAT HE IS A MEMBER - DO YOU ASSERT THAT HE WAS A
MEMBER OF THE COMMUNIST PARTY?    "A.  I THOUGHT HE WAS A MEMBER OF THE
COMMUNIST PARTY BECAUSE I HAVE SEEN HIM ON THOSE CERTAIN MEETINGS. 

"Q.  AND THAT WAS ALL YOU HAD TO BASE IT ON? 

"A.  THAT IS RIGHT." 

     *         *         *   *         * 

AND IT APPEARS THAT EVEN AT THE SO-CALLED "CLOSED PARTY MEETINGS,"
NONCOMMUNISTS WERE ADMITTED.  FOR A "CLOSED PARTY MEETING" WAS
EXPLAINED BY HALASZ TO MEAN "THAT ONLY THE PARTY MEMBERS CAN SAY
ANYTHING OR VOTE ON ANY SUBJECT:" 

"THE COURT.  BUT IT WAS POSSIBLE THAT NON-COMMUNISTS - WHEN I SAY
'NONCOMMUNISTS,' THEY WHO WERE NOT MEMBERS OF THE PARTY WERE PRESENT,
BUT IF THEY WERE PRESENT, THEY WERE NOT ALLOWED TO SPEAK AND THEY WERE
NOT ALLOWED TO VOTE, IS THAT RIGHT? 

"THE WITNESS.  THAT IS RIGHT, YES." 
..END :







FLOYD & BEASLEY TRANSFER V. UNITED STATES 385 U.S. 647 


NO. 702.  DECIDED JANUARY 23, 1967.  - 256 F. SUPP. 23, AFFIRMED. 


FLOYD & BEASLEY TRANSFER CO., INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ALABAMA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SOUTHERN PACIFIC V. LOS ANGELES 385 U.S. 647 


NO. 797.  DECIDED JANUARY 23, 1967.  - 242 CAL. APP. 2D 38, 51 CAL.
RPTR.  197, APPEAL DISMISSED. 


SOUTHERN PACIFIC CO. V. CITY OF LOS ANGELES ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















D'AMICO V. NATIONAL BROADCASTING 385 U.S. 648 


NO. 805.  DECIDED JANUARY 23, 1967.  - APPEAL DISMISSED. 


D'AMICO V. NATIONAL BROADCASTING CO. ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE STATEMENT AS TO JURISDICTION
IS GRANTED.  THE MOTIONS TO DISMISS ARE ALSO GRANTED AND THE APPEAL IS
DISMISSED FOR WANT OF JURISDICTION. 
..END :
















MCQUAID V. CALIFORNIA 385 U.S. 648 


NO. 584, MISC.  DECIDED JANUARY 23, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MCQUAID V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















FEIN V. NEW YORK 385 U.S. 649 


NO. 793.  DECIDED JANUARY 23, 1967.  - 18 N.Y.2D 162, 219 N.E.2D 274,
APPEAL DISMISSED AND CERTIORARI DENIED. 


FEIN V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :













SPROWAL V. NEW YORK 385 U.S. 649 


NO. 825.  DECIDED JANUARY 23, 1967.  - APPEAL DISMISSED. 


SPROWAL V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :















PATTERSON V. NEWPORT NEWS 385 U.S. 650 


NO. 820.  DECIDED JANUARY 23, 1967.  - 364 F.2D 816, APPEAL DISMISSED
AND CERTIORARI DENIED. 


PATTERSON ET AL. V. CITY OF NEWPORT NEWS ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE STATEMENT AS TO JURISDICTION
IS GRANTED.  THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A
WRIT OF CERTIORARI; CERTIORARI IS DENIED. 
..END :














MAXWELL V. BISHOP 385 U.S. 650 


NO. 1025, MISC.  DECIDED JANUARY 23, 1967.  - CERTIORARI  GRANTED; ORDER
REVERSED AND REMANDED. 


MAXWELL V. BISHOP, PENITENTIARY SUPERINTENDENT. 

ON MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF CERTIORARI. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE THE PETITION FOR A WRIT OF CERTIORARI
AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE ORDER
DENYING PETITIONER'S APPLICATION FOR A CERTIFICATE OF PROBABLE CAUSE TO
APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT IS
REVERSED AND THE CAUSE IS REMANDED WITH DIRECTIONS TO ISSUE THE
CERTIFICATE. 
..END :













GARRITY V. NEW JERSEY 385 U.S. 493 


NO. 13.  ARGUED NOVEMBER 10, 1966.  - DECIDED JANUARY 16, 1967.  - 44
N.J. 259, 208 A.2D 146, REVERSED. 


APPELLANTS, POLICE OFFICERS IN CERTAIN NEW JERSEY BOROUGHS, WERE
QUESTIONED DURING THE COURSE OF A STATE INVESTIGATION CONCERNING
ALLEGED TRAFFIC TICKET "FIXING."  EACH OFFICER WAS FIRST WARNED THAT:
ANYTHING HE SAID MIGHT BE USED AGAINST HIM IN A STATE CRIMINAL
PROCEEDING; HE COULD REFUSE TO ANSWER IF THE DISCLOSURE WOULD TEND TO
INCRIMINATE HIM; IF HE REFUSED TO ANSWER HE WOULD BE SUBJECT TO REMOVAL
FROM OFFICE.  THE OFFICERS' ANSWERS TO THE QUESTIONS WERE USED OVER
THEIR OBJECTIONS IN SUBSEQUENT PROSECUTIONS, WHICH RESULTED IN THEIR
CONVICTIONS.  THE STATE SUPREME COURT ON APPEAL UPHELD THE CONVICTIONS
DESPITE THE CLAIM THAT THE STATEMENTS OF THE OFFICERS WERE COERCED BY
REASON OF THE FACT THAT IF THEY REFUSED TO ANSWER THEY COULD, UNDER THE
NEW JERSEY FORFEITURE-OF-OFFICE STATUTE, LOSE THEIR POSITIONS.  THAT
STATUTE PROVIDES THAT A PUBLIC EMPLOYEE SHALL BE REMOVED FROM OFFICE IF
HE REFUSES TO TESTIFY OR ANSWER ANY MATERIAL QUESTION BEFORE ANY
COMMISSION OR BODY WHICH HAS THE RIGHT TO INQUIRE ABOUT MATTERS
RELATING TO HIS OFFICE OR EMPLOYMENT ON THE GROUND THAT HIS ANSWER MAY
INCRIMINATE HIM.  ON THE GROUND THAT THE ONLY REAL ISSUE IN THE CASE
WAS THE VOLUNTARINESS OF THE STATEMENTS, THE STATE SUPREME COURT
DECLINED TO PASS UPON THE CONSTITUTIONALITY OF THE STATUTE, THOUGH THE
STATUTE WAS CONSIDERED RELEVANT FOR THE BEARING IT HAD ON THE VOLUNTARY
CHARACTER OF THE STATEMENTS USED TO CONVICT THE OFFICERS.  THE OFFICERS
APPEALED TO THIS COURT UNDER 28 U.S.C. SEC. 1257(2) AND THE QUESTION OF
JURISDICTION WAS POSTPONED TO A HEARING ON THE MERITS.  HELD: 

1.  THE FORFEITURE-OF-OFFICE STATUTE IS TOO TANGENTIALLY INVOLVED TO
SATISFY THE REQUIREMENTS OF 28 U.S.C. SEC. 1257(2).  THE ONLY BEARING
IT HAD WAS WHETHER, VALID OR NOT, THE CHOICE BETWEEN BEING DISCHARGED
UNDER IT FOR REFUSAL TO ANSWER AND SELF-INCRIMINATION RENDERED THE
STATEMENTS PRODUCTS OF COERCION.  THE APPEAL IS DISMISSED, THE PAPERS
ARE TREATED AS A PETITION FOR CERTIORARI, AND CERTIORARI IS GRANTED. 
PP. 495-496. 

2.  THE THREAT OF REMOVAL FROM PUBLIC OFFICE UNDER THE FORFEITURE-OF
OFFICE STATUTE TO INDUCE THE PETITIONERS TO FORGO THE PRIVILEGE AGAINST
SELF-INCRIMINATION SECURED BY THE FOURTEENTH AMENDMENT RENDERED THE
RESULTING STATEMENTS INVOLUNTARY AND THEREFORE INADMISSIBLE IN THE
STATE CRIMINAL PROCEEDINGS.  PP. 496-500. 

(A)  THE CHOICE GIVEN PETITIONERS EITHER TO FORFEIT THEIR JOBS OR TO
INCRIMINATE THEMSELVES CONSITITUTED COERCION.  PP. 496-498. 

(B)  WHETHER THERE WAS A "WAIVER" IS A FEDERAL QUESTION.  P. 498. 

(C)  WHERE THE CHOICE IS "BETWEEN THE ROCK AND THE WHIRLPOOL" (FROST
TRUCKING CO. V. RAILROAD COMM'N, 271 U.S. 583, 593), THE DECISION TO
"WAIVE" ONE TO THE OTHER IS MADE UNDER DURESS.  P. 498. 

GARRITY ET AL. V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLANTS WERE POLICE OFFICERS IN CERTAIN NEW JERSEY BOROUGHS.  THE
SUPREME COURT OF NEW JERSEY ORDERED THAT ALLEGED IRREGULARITIES IN
HANDLING CASES IN THE MUNICIPAL COURTS OF THOSE BOROUGHS BE
INVESTIGATED BY THE ATTORNEY GENERAL, INVESTED HIM WITH BROAD POWERS OF
INQUIRY AND INVESTIGATION, AND DIRECTED HIM TO MAKE A REPORT TO THE
COURT.  THE MATTERS INVESTIGATED CONCERNED ALLEGED FIXING OF TRAFFIC
TICKETS. 

BEFORE BEING QUESTIONED, EACH APPELLANT WAS WARNED (1) THAT ANYTHING
HE SAID MIGHT BE USED AGAINST HIM IN ANY STATE CRIMINAL PROCEEDING; (2)
THAT HE HAD THE PRIVILEGE TO REFUSE TO ANSWER IF THE DISCLOSURE WOULD
TEND TO INCRIMINATE HIM; BUT (3) THAT IF HE REFUSED TO ANSWER HE WOULD
BE SUBJECT TO REMOVAL FROM OFFICE.  (FN1) 

APPELLANTS ANSWERED THE QUESTIONS.  NO IMMUNITY WAS GRANTED, AS THERE
IS NO IMMUNITY STATUTE APPLICABLE IN THESE CIRCUMSTANCES.  OVER THEIR
OBJECTIONS, SOME OF THE ANSWERS GIVEN WERE USED IN SUBSEQUENT
PROSECUTIONS FOR CONSPIRACY TO OBSTRUCT THE ADMINISTRATION OF THE
TRAFFIC LAWS.  APPELLANTS WERE CONVICTED AND THEIR CONVICTIONS WERE
SUSTAINED OVER THEIR PROTESTS THAT THEIR STATEMENTS WERE COERCED,
(FN2)  BY REASON OF THE FACT THAT, IF THEY REFUSED TO ANSWER, THEY
COULD LOSE THEIR POSITIONS WITH THE POLICE DEPARTMENT.  SEE 44 N.J.
209, 207 A.2D 689, 44 N.J. 259, 208 A.2D 146. 

WE POSTPONED THE QUESTION OF JURISDICTION TO A HEARING ON THE
MERITS.  383 U.S. 941.  THE STATUTE WHOSE VALIDITY WAS SOUGHT TO BE
"DRAWN IN QUESTION," 28 U.S.C. SEC. 1257(2), WAS THE FORFEITURE
STATUTE.  (FN3)  BUT THE NEW JERSEY SUPREME COURT REFUSED TO REACH THAT
QUESTION (44 N.J., AT 223, 207 A.2D, AT 697), DEEMING THE VOLUNTARINESS
OF THE STATEMENTS AS THE ONLY ISSUE PRESENTED.  ID., AT 220-222, 207
A.2D, AT 695-696.  THE STATUTE IS THEREFORE TOO TANGENTIALLY INVOLVED
TO SATISFY 28 U.S.C. SEC. 1257(2), FOR THE ONLY BEARING IT HAD WAS
WHETHER, VALID OF NOT, THE FEAR OF BEING DISCHARGED UNDER IT FOR
REFUSAL TO ANSWER ON THE ONE HAND AND THE FEAR OF SELF-INCRIMINATION ON
THE OTHER WAS "A CHOICE BETWEEN THE ROCK AND THE WHIRLPOOL"  (FN4)
WHICH MADE THE STATEMENTS PRODUCTS OF COERCION IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  WE THEREFORE DISMISS THE APPEAL, TREAT THE
PAPERS AS A PETITION FOR CERTIORARI (28 U.S.C. SEC 2103), GRANT THE
PETITION AND PROCEED TO THE MERITS. 

WE AGREE WITH THE NEW JERSEY SUPREME COURT THAT THE FORFEITURE-OF
OFFICE STATUTE IS RELEVANT HERE ONLY FOR THE BEARING IT HAS ON THE
VOLUNTARY CHARACTER OF THE STATEMENTS USED TO CONVICT PETITIONERS IN
THEIR CRIMINAL PROSECUTIONS. 

THE CHOICE IMPOSED ON PETITIONERS WAS ONE BETWEEN SELF-INCRIMINATION
OR JOB FORFEITURE.  COERCION THAT VITIATES A CONFESSION UNDER CHAMBERS
V. FLORIDA, 309 U.S. 227, AND RELATED CASES CAN BE "MENTAL AS WELL AS
PHYSICAL"; "THE BLOOD OF THE ACCUSED IS NOT THE ONLY HALLMARK OF AN
UNCONSTITUTIONAL INQUISITION."  BLACKBURN V. ALABAMA, 361 U.S. 199,
206.  SUBTLE PRESSURES (LEYRA V. DENNO, 347 U.S. 556; HAYNES V.
WASHINGTON, 373 U.S. 503) MAY BE AS TELLING AS COARSE AND VULGAR ONES. 
THE QUESTION IS WHETHER THE ACCUSED WAS DEPRIVED OF HIS "FREE CHOICE TO
ADMIT, TO DENY, OR TO REFUSE TO ANSWER."  LISENBA V. CALIFORNIA, 314
U.S. 219, 241. 

WE ADHERE TO BOYD V. UNITED STATES, 116 U.S. 616, A CIVIL FORFEITURE
ACTION AGAINST PROPERTY.  A STATUTE OFFERED THE OWNER AN ELECTION
BETWEEN PRODUCING A DOCUMENT OR FORFEITURE OF THE GOODS AT ISSUE IN THE
PROCEEDING.  THIS WAS HELD TO BE A FORM OF COMPULSION IN VIOLATION OF
BOTH THE FIFTH AMENDMENT AND THE FOURTH AMENDMENT.  ID., AT 634-635. 
IT IS THAT PRINCIPLE THAT WE ADHERE TO AND APPLY IN SPEVACK V. KLEIN,
POST, P. 511. 

THE CHOICE GIVEN PETITIONERS WAS EITHER TO FORFEIT THEIR JOBS OR TO
INCRIMINATE THEMSELVES.  THE OPTION TO LOSE THEIR MEANS OF LIVELIHOOD
OR TO PAY THE PENALTY OF SELF-INCRIMINATION IS THE ANTITHESIS OF FREE
CHOICE TO SPEAK OUT OR TO REMAIN SILENT.  THAT PRACTICE, LIKE
INTERROGATION PRACTICES WE REVIEWED IN MIRANDA V. ARIZONA, 384 U.S.
436, 464-465, IS "LIKELY TO EXERT SUCH PRESSURE UPON AN INDIVIDUAL AS
TO DISABLE HIM FROM MAKING A FREE AND RATIONAL CHOICE."  WE THINK THE
STATEMENTS WERE INFECTED BY THE COERCION  (FN5)  INHERENT IN THIS
SCHEME OF QUESTIONING AND CANNOT BE SUSTAINED AS VOLUNTARY UNDER OUR
PRIOR DECISIONS. 

IT IS SAID THAT THERE WAS A "WAIVER."  THAT, HOWEVER, IS A FEDERAL
QUESTION FOR US TO DECIDE.  UNION PAC. R.R. CO. V. PUB. SERVICE COMM.,
248 U.S. 67, 69-70; STEVENS V. MARKS, 383 U.S. 234, 243-244.  THE COURT
IN UNION PAC. R.R. CO. V. PUB. SERVICE COMM., SUPRA, IN SPEAKING OF A
CERTIFICATE EXACTED UNDER PROTEST AND IN VIOLATION OF THE COMMERCE
CLAUSE, SAID: 

"WERE IT OTHERWISE, AS CONDUCT UNDER DURESS INVOLVES A CHOICE, IT
ALWAYS WOULD BE POSSIBLE FOR A STATE TO IMPOSE AN UNCONSITUTIONAL
BURDEN BY THE THREAT OF PENALTIES WORSE THAN IT IN CASE OF A FAILURE TO
ACCEPT IT, AND THEN TO DECLARE THE ACCEPTANCE VOLUNTARY  ...  ."  ID.,
AT 70. 

WHERE THE CHOICE IS "BETWEEN THE ROCK AND THE WHIRLPOOL," DURESS IS
INHERENT IN DECIDING TO "WAIVE" ONE OR THE OTHER. 

"IT ALWAYS IS FOR THE INTEREST OF A PARTY UNDER DURESS TO CHOOSE THE
LESSER OF TWO EVILS.  BUT THE FACT THAT A CHOICE WAS MADE ACCORDING TO
INTEREST DOES NOT EXCLUDE DURESS.  IT IS THE CHARACTERISTIC DURESS
PROPERLY SO CALLED."  IBID. 

IN THAT CASE APPELLANT PAID UNDER PROTEST.  IN THESE CASES ALSO,
THOUGH PETITIONERS SUCCUMBED TO COMPULSION, THEY PRESERVED THEIR
OBJECTIONS, RAISING THEM AT THE EARLIEST POSSIBLE POINT.  CF. ABIE
STATE BANK V. BRYAN, 282 U.S. 765, 776.  THE CASES ARE THEREFORE QUITE
DIFFERENT FROM THE SITUATION WHERE ONE WHO IS ANXIOUS TO MAKE A CLEAN
BREAST OF THE WHOLE AFFAIR VOLUNTEERS THE INFORMATION. 

MR. JUSTICE HOLMES IN MCAULIFFE V. NEW BEDFORD, 155 MASS. 216, 29
N.E. 517, STATED A DICTUM ON WHICH NEW JERSEY HEAVILY RELIES: 

"THE PETITIONER MAY HAVE A CONSTITUTIONAL RIGHT TO TALK POLITICS, BUT
HE HAS NO CONSTITUTIONAL RIGHT TO BE A POLICEMAN.  THERE ARE A FEW
EMPLOYMENTS FOR HIRE IN WHICH THE SERVANT DOES NOT AGREE TO SUSPEND HIS
CONSTITUTIONAL RIGHT OF FREE SPEECH, AS WELL AS OF IDLENESS, BY THE
IMPLIED TERMS OF HIS CONTRACT.  THE SERVANT CANNOT COMPLAIN, AS HE
TAKES THE EMPLOYMENT ON THE TERMS WHICH ARE OFFERED HIM.  ON THE SAME
PRINCIPLE, THE CITY MAY IMPOSE ANY REASONABLE CONDITION UPON HOLDING
OFFICES WITHIN ITS CONTROL."  ID., AT 220, 29 N.E., AT 517-518. 

THE QUESTION IN THIS CASE, HOWEVER, IS NOT COGNIZABLE IN THOSE
TERMS.  OUR QUESTION IS WHETHER A STATE, CONTRARY TO THE REQUIREMENT OF
THE FOURTEENTH AMENDMENT, CAN USE THE THREAT OF DISCHARGE TO SECURE
INCRIMINATORY EVIDENCE AGAINST AN EMPLOYEE. 

WE HELD IN SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551, THAT A
PUBLIC SCHOOL TEACHER COULD NOT BE DISCHARGED MERELY BECAUSE HE HAD
INVOKED THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION WHEN
QUESTIONED BY A CONGRESSIONAL COMMITTEE: 

"THE PRIVILEGE AGAINST SELF-INCRIMINATION WOULD BE REDUCED TO A
HOLLOW MOCKERY IF ITS EXERCISE COULD BE TAKEN AS EQUIVALENT EITHER TO A
CONFESSION OF GUILT OR A CONCLUSIVE PRESUMPTION OF PERJURY ...  .  THE
PRIVILEGE SERVES TO PROTECT THE INNOCENT WHO OTHERWISE MIGHT BE
ENSNARED BY AMBIGUOUS CIRCUMSTANCES."  ID., AT 557-558. 

WE CONCLUDE THAT POLICEMEN, LIKE TEACHERS AND LAWYERS, ARE NOT
RELAGATED TO A WATERED-DOWN VERSION OF CONSTITUTIONAL RIGHTS. 

THERE ARE RIGHTS OF CONSTITUTIONAL STATURE WHOSE EXERCISE A STATE MAY
NOT CONDITION BY THE EXACTION OF A PRICE.  ENGAGING IN INTERSTATE
COMMERCE IS ONE.  WESTERN UNION TEL. CO. V. KANSAS, 216 U.S. 1.  RESORT
TO THE FEDERAL COURTS IN DIVERSITY OF CITIZENSHIP CASES IS ANOTHER. 
TERRAL V. BURKE CONSTR.  CO., 257 U.S. 529.  ASSERTION OF A FIRST
AMENDMENT RIGHT IS STILL ANOTHER.  LOVELL V. CITY OF GRIFFIN, 303 U.S.
444; MURDOCK V. PENNSYLVANIA, 319 U.S. 105; THOMAS V. COLLINS, 323 U.S.
516; LAMONT V. POSTMASTER GENERAL, 381 U.S. 301, 305-306.  THE
IMPOSITION OF A BURDEN ON THE EXERCISE OF A TWENTY-FOURTH AMENDMENT
RIGHT IS ALSO BANNED.  HARMAN V. FORSSENIUS, 380 U.S. 528.  WE NOW HOLD
THE PROTECTION OF THE INDIVIDUAL UNDER THE FOURTEENTH AMENDMENT AGAINST
COERCED STATEMENTS PROHIBITS USE IN SUBSEQUENT CRIMINAL PROCEEDINGS OF
STATEMENTS OBTAINED UNDER THREAT OF REMOVAL FROM OFFICE, AND THAT IT
EXTENDS TO ALL, WHETHER THEY ARE POLICEMEN OR OTHER MEMBERS OF OUR BODY
POLITIC.  REVERSED. 

FN1  "ANY PERSON HOLDING OR WHO HAS HELD ANY ELECTIVE OR APPOINTIVE
PUBLIC OFFICE, POSITION OR EMPLOYMENT (WHETHER STATE, COUNTY OR
MUNICIPAL), WHO REFUSES TO TESTIFY UPON MATTERS RELATING TO THE OFFICE,
POSITION OR EMPLOYMENT IN ANY CRIMINAL PROCEEDING WHEREIN HE IS A
DEFENDANT OR IS CALLED AS A WITNESS ON BEHALF OF THE PROSECUTION, UPON
THE GROUND THAT HIS ANSWER MAY TEND TO INCRIMINATE HIM OR COMPEL HIM TO
BE A WITNESS AGAINST HIMSELF OR REFUSES TO WAIVE IMMUNITY WHEN CALLED
BY A GRAND JURY TO TESTIFY THEREON OR WHO WILLFULLY REFUSES OR FAILS TO
APPEAR BEFORE ANY COURT, COMMISSION OR BODY OF THIS STATE WHICH HAS THE
RIGHT TO INQUIRE UNDER OATH UPON MATTERS RELATING TO THE OFFICE,
POSITION OR EMPLOYMENT OF SUCH PERSON OR WHO, HAVING BEEN SWORN,
REFUSES TO TESTIFY OR TO ANSWER ANY MATERIAL QUESTION UPON THE GROUND
THAT HIS ANSWER MAY TEND TO INCRIMINATE HIM OR COMPEL HIM TO BE A
WITNESS AGAINST HIMSELF, SHALL, IF HOLDING ELECTIVE OR PUBLIC OFFICE,
POSITION OR EMPLOYMENT, BE REMOVED THEREFROM OR SHALL THEREBY FORFEIT
HIS OFFICE, POSITION OR EMPLOYMENT AND ANY VESTED OR FUTURE RIGHT OF
TENURE OR PENSION GRANTED TO HIM BY ANY LAW OF THIS STATE PROVIDED THE
INQUIRY RELATES TO A MATTER WHICH OCCURRED OR AROSE WITHIN THE
PRECEDING FIVE YEARS.  ANY PERSON SO FORFEITING HIS OFFICE, POSITION OR
EMPLOYMENT SHALL NOT THEREAFTER BE ELIGIBLE FOR ELECTION OR APPOINTMENT
TO ANY PUBLIC OFFICE, POSITION OR EMPLOYMENT IN THIS STATE."  N.J. REV.
STAT. SEC 2A:81-17.1 (SUPP. 1965). 

FN2  AT THE TRIAL THE COURT EXCUSED THE JURY AND CONDUCTED A HEARING
TO DETERMINE WHETHER, INTER ALIA, THE STATEMENTS WERE VOLUNTARY.  THE
STATE OFFERED WITNESSES WHO TESTIFIED AS TO THE MANNER IN WHICH THE
STATEMENTS WERE TAKEN; THE APPELLANTS DID NOT TESTIFY AT THAT HEARING. 
THE COURT HELD THE STATEMENTS TO BE VOLUNTARY. 

FN3  N. 1, SUPRA. 

FN4  STEVENS V. MARKS, 383 U.S. 234, 243, QUOTING FROM FROST TRUCKING
CO. V. RAILROAD COMM'N, 271 U.S. 583, 593. 

FN5  CF. LAMM, THE 5TH AMENDMENT AND ITS EQUIVALENT IN JEWISH LAW, 17
DECALOGUE JOUR.  1 (JAN. - FEB. 1967): 

"IT SHOULD BE POINTED OUT, AT THE VERY OUTSET, THAT THE HALAKHAH DOES
NOT DISTINGUISH BETWEEN VOLUNTARY AND FORCED CONFESSIONS, FOR REASONS
WHICH WILL BE DISCUSSED LATER.  AND IT IS HERE THAT ONE OF THE BASIC
DIFFERENCES BETWEEN CONSTITUTIONAL AND TALMUDIC LAW ARISES.  ACCORDING
TO THE CONSTITUTION, A MAN CANNOT BE COMPELLED TO TESTIFY AGAINST
HIMSELF.  THE PROVISION AGAINST SELF-INCRIMINATION IS A PRIVILEGE OF
WHICH A CITIZEN MAY OR MAY NOT AVAIL HIMSELF, AS HE WISHES.  THE
HALAKHAH, HOWEVER, DOES NOT PERMIT SELF-INCRIMINATING TESTIMONY.  IT IS
INADMISSIBLE, EVEN IF VOLUNTARILY OFFERED.  CONFESSION, IN OTHER THAN A
RELIGIOUS CONTEXT, OR FINANCIAL CASES COMPLETELY FREE FROM ANY TRACES
OF CRIMINALITY, IS SIMPLY NOT AN INSTRUMENT OF THE LAW.  THE ISSUE,
THEN, IS NOT COMPULSION, BUT THE WHOLE IDEA OF LEGAL CONFESSION. 

     *         *         *         *         * 

"THE HALAKHAH, THEN, IS OBVIOUSLY CONCERNED WITH PROTECTING THE
CONFESSANT FROM HIS OWN ABERRATIONS WHICH MANIFEST THEMSELVES, EITHER
AS COMPLETELY FABRICATED CONFESSIONS, OR AS EXAGGERATIONS OF THE REAL
FACTS  ...  .  WHILE CERTAINLY NOT ALL, OR EVEN MOST CRIMINAL
CONFESSIONS ARE DIRECTLY ATTRIBUTABLE, IN WHOLE OR PART, TO THE DEATH
INSTINCT, THE HALAKHAH IS SUFFICIENTLY CONCERNED WITH THE MINORITY OF
INSTANCES, WHERE SUCH IS THE CASE, TO DISQUALIFY ALL CRIMINAL
CONFESSIONS AND TO DISCARD CONFESSION AS A LEGAL INSTRUMENT.  ITS
FUNCTION IS TO ENSURE THE TOTAL VICTORY OF THE LIFE INSTINCT OVER ITS
OMNIPRESENT ANTAGONIST.  SUCH ARE THE CONCLUSIONS TO BE DRAWN FROM
MAIMONIDES' INTERPRETATION OF THE HALAKHAH'S EQUIVALENT OF THE FIFTH
AMENDMENT. 

"IN SUMMARY, THEREFORE, THE CONSTITUTIONAL RULING ON SELF
INCRIMINATION CONCERNS ONLY FORCED CONFESSIONS, AND ITS RESTRICTED
CHARACTER IS A RESULT OF ITS HISTORICAL EVOLUTION AS A CIVILIZED
PROTEST AGAINST THE USE OF TORTURE IN EXORTING CONFESSIONS.  THE
HALAKHIC RULING, HOWEVER, IS MUCH BROADER AND DISCARDS CONFESSIONS IN
TOTO, AND THIS BECAUSE OF ITS PSYCHOLOGICAL INSIGHT AND ITS CONCERN FOR
SAVING MAN FROM HIS OWN DESTRUCTIVE INCLINATIONS."  ID., AT 10, 12. 

(FOR DISSENTING OPINION OF MR. JUSTICE WHITE, SEE POST, P. 530.) 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE STEWART
JOIN, DISSENTING. 

THE MAJORITY OPINION HERE AND THE PLURALITY OPINION IN SPEVACK V.
KLEIN, POST, P. 511, STEM FROM FUNDAMENTAL MISCONCEPTIONS ABOUT THE
LOGIC AND NECESSITIES OF THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION.  I FEAR THAT THESE OPINIONS WILL SERIOUSLY AND QUITE
NEEDLESSLY HINDER THE PROTECTION OF OTHER IMPORTANT PUBLIC VALUES.  I
MUST DISSENT HERE, AS I DO IN SPEVACK.    THE MAJORITY EMPLOYS A
CURIOUS MIXTURE OF DOCTRINES TO INVALIDATE THESE CONVICTIONS, AND I
CONFESS TO DIFFICULTY IN PERCEIVING THE INTENDED RELATIONSHIPS AMONG
THE VARIOUS SEGMENTS OF ITS OPINION.  I GATHER THAT THE MAJORITY
BELIEVES THAT THE POSSIBILITY THAT THESE POLICEMEN MIGHT HAVE BEEN
DISCHARGED HAD THEY REFUSED TO PROVIDE INFORMATION PERTINENT TO THEIR
PUBLIC RESPONSIBILITIES IS AN IMPERMISSIBLE "CONDITION" IMPOSED BY NEW
JERSEY UPON PETITIONERS' PRIVILEGE AGAINST SELF-INCRIMINATION.  FROM
THIS PREMISE THE MAJORITY DRAWS THE CONCLUSION THAT THE STATEMENTS
OBTAINED FROM PETITIONERS AFTER A WARNING THAT DISCHARGE WAS POSSIBLE
WERE INADMISSIBLE.  EVIDENTLY RECOGNIZING THE WEAKNESS OF ITS
CONCLUSION, THE MAJORITY ATTEMPTS TO BRING TO ITS SUPPORT ILLUSTRATIONS
FROM THE LENGTHY SERIES OF CASES IN WHICH THIS COURT, IN LIGHT OF ALL
THE RELEVANT CIRCUMSTANCES, HAS ADJUDGED THE VOLUNTARINESS IN FACT OF
STATEMENTS OBTAINED FROM ACCUSED PERSONS. 

THE MAJORITY IS APPARENTLY ENGAGED IN THE DELICATE TASK OF RIDING TWO
UNRULY HORSES AT ONCE:  IT IS PRESUMABLY ARGUING SIMULTANEOUSLY THAT
THE STATEMENTS WERE INVOLUNTARY AS A MATTER OF FACT, IN THE SAME
FASHION THAT THE STATEMENTS IN CHAMBERS V. FLORIDA, 309 U.S. 227, AND
HAYNES V. WASHINGTON, 373 U.S. 503, WERE THOUGHT TO BE INVOLUNTARY, AND
THAT THE STATEMENTS WERE INADMISSIBLE AS A MATTER OF LAW, ON THE
PREMISE THAT THEY WERE PRODUCTS OF AN IMPERMISSIBLE CONDITION IMPOSED
ON THE CONSTITUTIONAL PRIVILEGE.  THESE ARE VERY DIFFERENT CONTENTIONS
AND REQUIRE SEPARATE REPLIES, BUT IN MY OPINION BOTH CONTENTIONS ARE
PLAINLY MISTAKEN, FOR REASONS THAT FOLLOW. 

                             I. 

I TURN FIRST TO THE SUGGESTION THAT THESE STATEMENTS WERE INVOLUNTARY
IN FACT.  AN ASSESSMENT OF THE VOLUNTARINESS OF THE VARIOUS STATEMENTS
IN ISSUE HERE REQUIRES A MORE COMPREHENSIVE EXAMINATION OF THE
PERTINENT CIRCUMSTANCES THAN THE MAJORITY HAS UNDERTAKEN. 

THE PETITIONERS WERE AT ALL MATERIAL TIMES POLICEMEN IN THE BOROUGHS
OF BELLMAWR AND BARRINGTON, NEW JERSEY.  GARRITY WAS BELLMAWR'S CHIEF
OF POLICE AND VIRTUE ONE OF ITS POLICE OFFICERS; HOLROYD, ELWELL, AND
MURRAY WERE POLICE OFFICERS IN BARRINGTON.  ANOTHER DEFENDANT BELOW,
MRS. NAGLEE, THE CLERK OF BELLMAWR'S MUNICIPAL COURT, HAS SINCE DIED. 
IN JUNE 1961 THE NEW JERSEY SUPREME COURT SUA SPONTE DIRECTED THE
STATE'S ATTORNEY GENERAL TO INVESTIGATE REPORTS OF TRAFFIC TICKET
FIXING IN BELLMAWR AND BARRINGTON.  SUBSEQUENT INVESTIGATIONS PRODUCED
EVIDENCE THAT THE PETITIONERS, IN SEPARATE CONSPIRACIES, HAD FALSIFIED
MUNICIPAL COURT RECORDS, ALTERED TRAFFIC TICKETS, AND DIVERTED MONEYS
PRODUCED FROM BAIL AND FINES TO UNAUTHORIZED PURPOSES.  IN THE COURSE
OF THESE INVESTIGATIONS THE STATE OBTAINED TWO SWORN STATEMENTS FROM
EACH OF THE PETITIONERS; PORTIONS OF THOSE STATEMENTS WERE ADMITTED AT
TRIAL.  THE PETITIONERS WERE CONVICTED IN TWO SEPARATE TRIALS OF
CONSPIRACY TO OBSTRUCT THE PROPER ADMINISTRATION OF THE STATE MOTOR
TRAFFIC LAWS, THE CASES BEING NOW CONSOLIDATED FOR PURPOSES OF OUR
REVIEW.  THE SUPREME COURT OF NEW JERSEY AFFIRMED ALL THE CONVICTIONS. 

THE FIRST STATEMENTS WERE TAKEN FROM THE PETITIONERS BY THE STATE'S
DEPUTY ATTORNEY GENERAL IN AUGUST AND NOVEMBER 1961.  ALL OF THE USUAL
INDICIA OF DURESS ARE WHOLLY ABSENT.  AS THE STATE COURT NOTED, THERE
WAS "NO PHYSICAL COERCION, NO OVERBEARING TACTICS OF PSYCHOLOGICAL
PERSUASION, NO LENGTHY INCOMMUNICADO DETENTION, OR EFFORTS TO HUMILIATE
OR RIDICULE THE DEFENDANTS."  44 N.J. 209, 220, 207 A.2D 689, 695.  THE
STATE COURT FOUND NO EVIDENCE THAT ANY OF THE PETITIONERS WERE
RELUCTANT TO OFFER STATEMENTS, AND CONCLUDED THAT THE INTERROGATIONS
WERE CONDUCTED WITH A "HIGH DEGREE OF CIVILITY AND RESTRAINT."  IBID. 

THESE CONCLUSIONS ARE FULLY SUBSTANTIATED BY THE RECORD.  THE
STATEMENTS OF THE BELLMAWR PETITIONERS WERE TAKEN IN A ROOM IN THE
LOCAL FIREHOUSE, FOR WHICH CHIEF GARRITY HIMSELF HAD MADE
ARRANGEMENTS.  NONE OF THE PETITIONERS WERE IN CUSTODY BEFORE OR AFTER
THE DEPOSITIONS WERE TAKEN; EACH APPARENTLY CONTINUED TO PURSUE HIS
ORDINARY DUTIES AS A PUBLIC OFFICIAL OF THE COMMUNITY.  THE STATEMENTS
WERE RECORDED BY A COURT STENOGRAPHER, WHO TESTIFIED THAT HE WITNESSED
NO INDICATIONS OF UNWILLINGNESS OR EVEN SIGNIFICANT HESITATION ON THE
PART OF ANY OF THE PETITIONERS.  THE BELLMAWR PETITIONERS DID NOT HAVE
COUNSEL PRESENT, BUT THE DEPUTY ATTORNEY GENERAL TESTIFIED WITHOUT
CONTRADICTION THAT GARRITY HAD INFORMED HIM AS THEY STROLLED BETWEEN
GARRITY'S OFFICE AND THE FIREHOUSE THAT HE HAD ARRANGED FOR COUNSEL,
BUT THOUGHT THAT NONE WOULD BE REQUIRED AT THAT STAGE.  THE
INTERROGATIONS WERE NOT EXCESSIVELY LENGTHY, AND REASONABLE EFFORTS
WERE MADE TO ASSURE THE PHYSICAL COMFORT OF THE WITNESSES.  MRS.
NAGLEE, THE CLERK OF THE BELLMAWR MUNICIPAL COURT, WHO WAS KNOWN TO
SUFFER FROM A HEART AILMENT, WAS ASSURED THAT QUESTIONING WOULD CEASE
IF SHE FELT ANY DISCOMFORT. 

THE CIRCUMSTANCES IN WHICH THE DEPOSITIONS OF THE BARRINGTON
PETITIONERS WERE TAKEN ARE LESS CERTAIN, FOR THE NEW JERSEY SUPREME
COURT FOUND THAT THERE WAS AN INFORMAL AGREEMENT AT THE BARRINGTON
TRIAL THAT THE DEFENDANTS WOULD ARGUE SIMPLY THAT THE POSSIBILITY OF
DISMISSAL MADE THE STATEMENTS "INVOLUNTARY AS A MATTER OF LAW."  THE
DEFENSE DID NOT CONTEND THAT THE STATEMENTS WERE THE RESULT OF PHYSICAL
OR MENTAL COERCION, OR THAT THE WILLS OF THE BARRINGTON PETITIONERS
WERE OVERBORNE.  ACCORDINGLY, THE STATE WAS NEVER OBLIGED TO OFFER
EVIDENCE OF THE VOLUNTARINESS IN FACT OF THE STATEMENTS.  WE ARE,
HOWEVER, INFORMED THAT THE THREE BARRINGTON PETITIONERS HAD COUNSEL
PRESENT AS THEIR DISPOSITIONS WERE TAKEN.  INSOFAR AS THE MAJORITY
SUGGESTS THAT THE BARRINGTON STATEMENTS ARE INVOLUNTARY IN FACT, IN THE
FASHION OF CHAMBERS OR HAYNES, IT HAS INTRODUCED A FACTUAL CONTENTION
NEVER URGED BY THE BARRINGTON PETITIONERS AND NEVER CONSIDERED BY THE
COURTS OF NEW JERSEY. 

AS INTERROGATION COMMENCED, EACH OF THE PETITIONERS WAS SWORN,
CAREFULLY INFORMED THAT HE NEED NOT GIVE ANY INFORMATION, REMINDED THAT
ANY INFORMATION GIVEN MIGHT BE USED IN A SUBSEQUENT CRIMINAL
PROSECUTION, AND WARNED THAT AS A POLICE OFFICER HE WAS SUBJECT TO A
PROCEEDING TO DISCHARGE HIM IF HE FAILED TO PROVIDE INFORMATION
RELEVANT TO HIS PUBLIC RESPONSIBILITIES.  THE CAUTIONARY STATEMENTS
VARIED SLIGHTLY, BUT ALL, EXCEPT THAT GIVEN TO MRS. NAGLEE, INCLUDED
EACH OF THE THREE WARNINGS.  (FN1)  MRS. NAGLEE WAS NOT TOLD THAT SHE
COULD BE REMOVED FROM HER POSITION AT THE COURT IF SHE FAILED TO GIVE
INFORMATION PERTINENT TO THE DISCHARGE OF HER DUTIES.  ALL OF THE
PETITIONERS CONSENTED TO GIVE STATEMENTS, NONE DISPLAYED ANY
SIGNIFICANT HESITATION, AND NONE SUGGESTED THAT THE DECISION TO OFFER
INFORMATION WAS MOTIVATED BY THE POSSIBILITY OF DISCHARGE. 

A SECOND STATEMENT WAS OBTAINED FROM EACH OF THE PETITIONERS IN
SEPTEMBER AND DECEMBER 1962.  THESE STATEMENTS WERE NOT MATERIALLY
DIFFERENT IN CONTENT OR CIRCUMSTANCES FROM THE FIRST.  THE ONLY
SIGNIFICANT DISTINCTION WAS THAT THE INTERROGATOR DID NOT ADVERT EVEN
OBLIQUELY TO ANY POSSIBILITY OF DISMISSAL.  ALL THE PETITIONERS WERE
CAUTIONED THAT THEY WERE ENTITLED TO REMAIN SILENT, AND THERE WAS NO
EVIDENCE WHATEVER OF PHYSICAL OR MENTAL COERCION. 

ALL OF THE PETITIONERS TESTIFIED AT TRIAL, AND GAVE EVIDENCE
ESSENTIALLY CONSISTENT WITH THE STATEMENTS TAKEN FROM THEM.  AT A
PRELIMINARY HEARING CONDUCTED AT THE BELLMAWR TRIAL TO DETERMINE THE
VOLUNTARINESS OF THE STATEMENTS, THE BELLMAWR PETITIONERS OFFERED NO
EVIDENCE BEYOND PROOF OF THE WARNING GIVEN THEM. 

THE STANDARDS EMPLOYED BY THE COURT TO ASSESS THE VOLUNTARINESS OF AN
ACCUSED'S STATEMENTS HAVE REFLECTED A NUMBER OF VALUES, AND THUS HAVE
EMPHASIZED A VARIETY OF FACTUAL CRITERIA.  THE CRITERIA EMPLOYED HAVE
INCLUDED THREATS OF IMMINENT DANGER, PAYNE V. ARKANSAS, 356 U.S. 560,
PHYSICAL DEPRIVATIONS, RECK V. PATE, 367 U.S. 433, REPEATED OR EXTENDED
INTERROGATION, CHAMBERS V. FLORIDA, 309 U.S. 227, LIMITS ON ACCESS TO
COUNSEL OR FRIENDS, CROOKER V. CALIFORNIA, 357 U.S. 433, LENGTH AND
ILLEGALITY OF DETENTION UNDER STATE LAW, HAYNES V. WASHINGTON, 373 U.S.
503, INDIVIDUAL WEAKNESS OR INCAPACITY, LYNUMN V. ILLINOIS, 372 U.S.
528, AND THE ADEQUACY OF WARNINGS OF CONSTITUTIONAL RIGHTS, DAVIS V.
NORTH CAROLINA, 384 U.S. 737.  WHATEVER THE CRITERIA EMPLOYED, THE DUTY
OF THE COURT HAS BEEN "TO EXAMINE THE ENTIRE RECORD," AND THEREBY TO
DETERMINE WHETHER THE ACCUSED'S WILL "WAS OVERBORNE BY THE SUSTAINED
PRESSURES UPON HIM."  DAVIS V. NORTH CAROLINA, 384 U.S. 737, 741, 739. 

IT WOULD BE DIFFICULT TO IMAGINE INTERROGATIONS TO WHICH THESE
CRITERIA OF DURESS WERE MORE COMPLETELY INAPPLICABLE, OR IN WHICH THE
REQUIREMENTS WHICH HAVE SUBSEQUENTLY BEEN IMPOSED BY THIS COURT ON
POLICE QUESTIONING WERE MORE THOROUGHLY SATISFIED.  EACH OF THE
PETITIONERS RECEIVED A COMPLETE AND EXPLICIT REMINDER OF HIS
CONSTITUTIONAL PRIVILEGE.  THREE OF THE PETITIONERS HAD COUNSEL
PRESENT; AT LEAST A FOURTH HAD CONSULTED COUNSEL BUT FREELY DETERMINED
THAT HIS PRESENCE WAS UNNECESSARY.  THESE PETITIONERS WERE NOT IN ANY
FASHION "SWEPT FROM FAMILIAR SURROUNDINGS INTO POLICE CUSTODY,
SURROUNDED BY ANTAGONISTIC FORCES, AND SUBJECTED TO THE TECHNIQUES OF
PERSUASION ...  ."  MIRANDA V. ARIZONA, 384 U.S. 436, 461.  I THINK IT
MANIFEST THAT, UNDER THE STANDARDS DEVELOPED BY THIS COURT TO ASSESS
VOLUNTARINESS, THERE IS NO BASIS FOR SAYING THAT ANY OF THESE
STATEMENTS WERE MADE INVOLUNTARILY. 

                        II. 

THE ISSUE REMAINING IS WHETHER THE STATEMENTS WERE INADMISSIBLE
BECAUSE THEY WERE "INVOLUNTARY AS A MATTER OF LAW," IN THAT THEY WERE
GIVEN AFTER A WARNING THAT NEW JERSEY POLICEMEN MAY BE DISCHARGED FOR
FAILURE TO PROVIDE INFORMATION PERTINENT TO THEIR PUBLIC
RESPONSIBILITIES.  WHAT IS REALLY INVOLVED ON THIS SCORE, HOWEVER, IS
NOT IN TRUTH A QUESTION OF "VOLUNTARINESS" AT ALL, BUT RATHER WHETHER
THE CONDITION IMPOSED BY THE STATE ON THE EXERCISE OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION, NAMELY DISMISSAL FROM OFFICE, IN THIS
INSTANCE SERVES IN ITSELF TO RENDER THE STATEMENTS INADMISSIBLE. 
ABSENT EVIDENCE OF INVOLUNTARINESS IN FACT, THE ADMISSIBILITY OF THESE
STATEMENTS THUS HINGES ON THE VALIDITY OF THE CONSEQUENCE WHICH THE
STATE ACKNOWLEDGED MIGHT HAVE RESULTED IF THE STATEMENTS HAD NOT BEEN
GIVEN.  IF THE CONSEQUENCE IS CONSTITUTIONALLY PERMISSIBLE, THERE CAN
SURELY BE NO OBJECTION IF THE STATE CAUTIONS THE WITNESS THAT IT MAY
FOLLOW IF HE REMAINS SILENT.  IF BOTH THE CONSEQUENCE AND THE WARNING
ARE CONSTITUTIONALLY PERMISSIBLE, A WITNESS IS OBLIGED, IN ORDER TO
PREVENT THE USE OF HIS STATEMENTS AGAINST HIM IN A CRIMINAL
PROSECUTION, TO PROVE UNDER THE STANDARDS ESTABLISHED SINCE BROWN V.
MISSISSIPPI, 297 U.S. 278, THAT AS A MATTER OF FACT THE STATEMENTS WERE
INVOLUNTARILY MADE.  THE CENTRAL ISSUES HERE ARE THEREFORE IDENTICAL TO
THOSE PRESENTED IN SPEVACK V. KLEIN, SUPRA:  WHETHER CONSEQUENCES MAY
PROPERLY BE PERMITTED TO RESULT TO A CLAIMANT AFTER HIS INVOCATION OF
THE CONSTITUTIONAL PRIVILEGE, AND IF SO, WHETHER THE CONSEQUENCE IN
QUESTION IS PERMISSIBLE.  FOR REASONS WHICH I HAVE STATED IN SPEVACK V.
KLEIN, IN MY VIEW NOTHING IN THE LOGIC OR PURPOSES OF THE PRIVILEGE
DEMANDS THAT ALL CONSEQUENCES WHICH MAY RESULT FROM A WITNESS' SILENCE
BE FORBIDDEN MERELY BECAUSE THAT SILENCE IS PRIVILEGED.  THE VALIDITY
OF THE CONSEQUENCE DEPENDS BOTH UPON THE HAZARDS, IF ANY, IT PRESENTS
TO THE INTEGRITY OF THE PRIVILEGE AND UPON THE URGENCY OF THE PUBLIC
INTERESTS IT IS DESIGNED TO PROTECT. 

IT CAN HARDLY BE DENIED THAT NEW JERSEY IS PERMITTED BY THE
CONSTITUTION TO ESTABLISH REASONABLE QUALIFICATIONS AND STANDARDS OF
CONDUCT FOR ITS PUBLIC EMPLOYEES.  NOR CAN IT BE SAID THAT IT IS
ARBITRARY OR UNREASONABLE FOR NEW JERSEY TO INSIST THAT ITS EMPLOYEES
FURNISH THE APPROPRIATE AUTHORITIES WITH INFORMATION PERTINENT TO THEIR
EMPLOYMENT.  CF. BEILAN V. BOARD OF EDUCATION, 357 U.S. 399; SLOCHOWER
V. BOARD OF EDUCATION, 350 U.S. 551.  FINALLY, IT IS SURELY PLAIN THAT
NEW JERSEY MAY IN PARTICULAR REQUIRE ITS EMPLOYEES TO ASSIST IN THE
PREVENTION AND DETECTION OF UNLAWFUL ACTIVITIES BY OFFICERS OF THE
STATE GOVERNMENT.  THE URGENCY OF THESE REQUIREMENTS IS THE MORE
OBVIOUS HERE, WHERE THE CONDUCT IN QUESTION IS THAT OF OFFICIALS
DIRECTLY ENTRUSTED WITH THE ADMINISTRATION OF JUSTICE.  THE IMPORTANCE
FOR OUR SYSTEMS OF JUSTICE OF THE INTEGRITY OF LOCAL POLICE FORCES CAN
SCARCELY BE EXAGGERATED.  THUS, IT NEED ONLY BE RECALLED THAT THIS
COURT ITSELF HAS OFTEN INTERVENED IN STATE CRIMINAL PROSECUTIONS
PRECISELY ON THE GROUND THAT THIS MIGHT ENCOURAGE HIGH STANDARDS OF
POLICE BEHAVIOR.  SEE, E.G., ASHCRAFT V. TENNESSEE, 322 U.S. 143;
MIRANDA V. ARIZONA, SUPRA.  IT MUST BE CONCLUDED, THEREFORE, THAT THE
SANCTION AT ISSUE HERE IS REASONABLY CALCULATED TO SERVE THE MOST BASIC
INTERESTS OF THE CITIZENS OF NEW JERSEY. 

THE FINAL QUESTION IS THE HAZARD, IF ANY, WHICH THIS SANCTION PRESENTS
TO THE CONSTITUTIONAL PRIVILEGE.  THE PURPOSES FOR WHICH, AND THE
CIRCUMSTANCES IN WHICH, AN OFFICER'S DISCHARGE MIGHT BE ORDERED UNDER
NEW JERSEY LAW PLAINLY MAY VARY.  IT IS OF COURSE POSSIBLE THAT
DISCHARGE MIGHT IN A GIVEN CASE BE PREDICATED ON AN IMPUTATION OF GUILT
DRAWN FROM THE USE OF THE PRIVILEGE, AS WAS THOUGHT BY THIS COURT TO
HAVE OCCURRED IN SLOCHOWER V. BOARD OF EDUCATION, SUPRA.  BUT FROM OUR
VANTAGE POINT, IT WOULD BE QUITE IMPROPER TO ASSUME THAT NEW JERSEY
WILL EMPLOY THESE PROCEDURES FOR PURPOSES OTHER THAN TO ASSESS IN GOOD
FAITH AN EMPLOYEE'S CONTINUED FITNESS FOR PUBLIC EMPLOYMENT.  THIS
COURT, WHEN A STATE PROCEDURE FOR INVESTIGATING THE LOYALTY AND FITNESS
OF PUBLIC EMPLOYEES MIGHT RESULT EITHER IN THE SLOCHOWER SITUATION OR
IN AN ASSESSMENT IN GOOD FAITH OF AN EMPLOYEE, HAS UNTIL TODAY
CONSISTENTLY PAUSED TO EXAMINE THE ACTUAL CIRCUMSTANCES OF EACH CASE. 
BEILAN V. BOARD OF EDUCATION, SUPRA; NELSON V. LOS ANGELES COUNTY, 362
U.S. 1.  I AM UNABLE TO SEE ANY JUSTIFICATION FOR THE MAJORITY'S
ABANDONMENT OF THAT PROCESS; IT IS WELL CALCULATED BOTH TO PROTECT THE
ESSENTIAL PURPOSES OF THE PRIVILEGE AND TO GUARANTEE THE MOST GENEROUS
OPPORTUNITIES FOR THE PURSUIT OF OTHER PUBLIC VALUES.  THE MAJORITY'S
BOARD PROHIBITION, ON THE OTHER HAND, EXTENDS THE SCOPE OF THE
PRIVILEGE BEYOND ITS ESSENTIAL PURPOSES, AND SERIOUSLY HAMPERS THE
PROTECTION OF OTHER IMPORTANT VALUES.  DESPITE THE MAJORITY'S
DISCLAIMER, IT IS QUITE PLAIN THAT THE LOGIC OF ITS PROHIBITORY RULE
WOULD IN THIS SITUATION PREVENT THE DISCHARGE OF THESE POLICEMEN.  IT
WOULD THEREFORE ENTIRELY FORBID A SANCTION WHICH PRESENTS, AT LEAST ON
ITS FACE, NO HAZARD TO THE PURPOSES OF THE CONSTITUTIONAL PRIVILEGE,
AND WHICH MAY REASONABLY BE EXPECTED TO SERVE IMPORTANT PUBLIC
INTERESTS.  WE ARE NOT ENTITLED TO ASSUME THAT DISCHARGES WILL BE USED
EITHER TO VINDICATE IMPERMISSIBLE INFERENCES OF GUILT OR TO PENALIZE
PRIVILEGED SILENCE, BUT MUST INSTEAND PRESUME THAT THIS PROCEDURE IS
ONLY INTENDED AND WILL ONLY BE USED TO ESTABLISH AND ENFORCE STANDARDS
OF CONDUCT FOR PUBLIC EMPLOYEES.  (FN2)  AS SUCH, IT DOES NOT MINIMIZE
OR ENDANGER THE PETITIONERS' CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION.  (FN3) 

I WOULD THEREFORE CONCLUDE THAT THE SANCTION PROVIDED BY THE STATE IS
CONSTITUTIONALLY PERMISSIBLE.  FROM THIS, IT SURELY FOLLOWS THAT THE
WARNING GIVEN THE POSSIBILITY OF DISCHARGE IS CONSTITUTIONALLY
UNOBJECTIONABLE.  GIVEN THE CONSTITUTIONALITY BOTH OF THE SANCTION AND
OF THE WARNING OF ITS APPLICATION, THE PETITIONERS WOULD BE
CONSTITUTIONALLY ENTITLED TO EXCLUDE THE USE OF THEIR STATEMENTS AS
EVIDENCE IN A CRIMINAL PROSECUTION AGAINST THEM ONLY IF IT IS FOUND
THAT THE STATEMENTS WERE, WHEN GIVEN, INVOLUNTARY IN FACT.  FOR THE
REASONS STATED ABOVE, I CANNOT AGREE THAT THESE STATEMENTS WERE
INVOLUNTARY IN FACT. 

I WOULD AFFIRM THE JUDGMENTS OF THE SUPREME COURT OF NEW JERSEY. 

FN1  THE WARNING GIVEN TO CHIEF GARRITY IS TYPICAL.  "I WANT TO
ADVISE YOU THAT ANYTHING YOU SAY MUST BE SAID OF YOUR OWN FREE WILL AND
ACCORD WITHOUT ANY THREATS OR PROMISES OR COERCION, AND ANYTHING YOU
SAY MAY BE, OF COURSE, USED AGAINST YOU OR ANY OTHER PERSON IN ANY
SUBSEQUENT CRIMINAL PROCEEDINGS IN THE COURTS OF OUR STATE. 

"YOU DO HAVE, UNDER OUR LAW, AS YOU PROBABLY KNOW, A PRIVILEGE TO
REFUSE TO MAKE ANY DISCLOSURE WHICH MAY TEND TO INCRIMINATE YOU.  IF
YOU MAKE A DISCLOSURE WITH KNOWLEDGE OF THIS RIGHT OR PRIVILEGE,
VOLUNTARILY, YOU THEREBY WAIVE THAT RIGHT OR PRIVILEGE IN RELATION TO
ANY OTHER QUESTIONS WHICH I MIGHT PUT TO YOU RELEVANT TO SUCH
DISCLOSURE IN THIS INVESTIGATION. 

"THIS RIGHT OR PRIVILEGE WHICH YOU HAVE IS SOMEWHAT LIMITED TO THE
EXTENT THAT YOU AS A POLICE OFFICER UNDER THE LAWS OF OUR STATE, MAY BE
SUBJECTED TO A PROCEEDING TO HAVE YOU REMOVED FROM OFFICE IF YOU REFUSE
TO ANSWER A QUESTION PUT TO YOU UNDER OATH PERTAINING TO YOUR OFFICE OR
YOUR FUNCTION WITHIN THAT OFFICE.  IT DOESN'T MEAN, HOWEVER, YOU CAN'T
EXERCISE THE RIGHT.  YOU DO HAVE THE RIGHT." 

A. "NO, I WILL COOPERATE." 

Q. "UNDERSTANDING THIS, ARE YOU WILLING TO PROCEED AT THIS TIME AND
ANSWER ANY QUESTIONS?" 

A. "YES." 

FN2  THE LEGISLATIVE HISTORY OF N.J. REV. STAT. 2A:81-17.1 PROVIDES
NOTHING WHICH CLEARLY INDICATES THE PURPOSES OF THE STATUTE, BEYOND
WHAT IS TO BE INFERRED FROM ITS FACE.  IN ANY EVENT, THE NEW JERSEY
SUPREME COURT NOTED BELOW THAT THE STATE WOULD BE ENTITLED, EVEN
WITHOUT THE STATUTORY AUTHORIZATION, TO DISCHARGE STATE EMPLOYEES WHO
DECLINED TO PROVIDE INFORMATION RELEVANT TO THEIR OFFICIAL
RESPONSIBILITIES.  THERE IS THEREFORE NOTHING TO WHICH THIS COURT COULD
PROPERLY NOW LOOK TO FORECAST THE PURPOSES FOR WHICH OR CIRCUMSTANCES
IN WHICH NEW JERSEY MIGHT DISCHARGE THOSE WHO HAVE INVOKED THE
CONSTITUTIONAL PRIVILEGE. 

FN3  THE LATE JUDGE JEROME FRANK THUS ONCE NOTED, IN THE COURSE OF A
SPIRITED DEFENSE OF THE PRIVILEGE, THAT IT WOULD BE ENTIRELY
PERMISSIBLE TO DISCHARGE POLICE OFFICERS WHO DECLINE, ON GROUNDS OF THE
PRIVILEGE, TO DISCLOSE INFORMATION PERTINENT TO THEIR PUBLIC
RESPONSIBILITIES.  JUDGE FRANK QUOTED THE FOLLOWING WITH APPROVAL: 

"'DUTY REQUIRED THEM TO ANSWER.  PRIVILEGE PERMITTED THEM TO REFUSE
TO ANSWER.  THEY CHOSE TO EXERCISE THE PRIVILEGE, BUT THE EXERCISE OF
SUCH PRIVILEGE WAS WHOLLY INCONSISTENT WITH THEIR DUTY AS POLICE
OFFICERS.  THEY CLAIM THAT THEY HAD A CONSTITUTIONAL RIGHT TO REFUSE TO
ANSWER UNDER THE CIRCUMSTANCES, BUT  ...  THEY HAD NO CONSTITUTIONAL
RIGHT TO REMAIN POLICE OFFICERS IN THE FACE OF THEIR CLEAR VIOLATION OF
THE DUTY IMPOSED UPON THEM.'  CHRISTAL V. POLICE COMMISSION OF SAN
FRANCISCO."  CITING 33 CAL. APP. 2D 564, 92 P.2D 416.  UNITED STATES V.
FIELD, 193 F.2D 92, 106 (SEPARATE OPINION). 
..END :






















SPEVACK V. KLEIN 385 U.S. 511 


NO. 62.  ARGUED NOVEMBER 7, 1966.  - DECIDED JANUARY 16, 1967.  - 16
N.Y.2D 1048, 213 N.E.2D 457, 17 N.Y.2D 490, 214 N.E.2D 373, REVERSED. 


IN A PROCEEDING TO DISCIPLINE PETITIONER, A MEMBER OF THE NEW YORK
BAR, FOR PROFESSIONAL MISCONDUCT FOR FAILURE TO PRODUCE DEMANDED
FINANCIAL RECORDS AND FOR REFUSAL TO TESTIFY AT A JUDICIAL INQUIRY,
PETITIONER DEFENDED ON THE GROUND THAT PRODUCTION OF THE RECORDS AND
HIS TESTIMONY WOULD TEND TO INCRIMINATE HIM.  THE APPELLATE DIVISION OF
THE NEW YORK SUPREME COURT ORDERED HIM DISBARRED, HOLDING THAT THE
PRIVILEGE AGAINST SELF-INCRIMINATION WAS NOT AVAILABLE IN LIGHT OF
COHEN V. HURLEY, 366 U.S. 117.  THE NEW YORK COURT OF APPEALS AFFIRMED
ON THE AUTHORITY OF COHEN V. HURLEY, AND ON THE FURTHER GROUND THAT THE
FIFTH AMENDMENT PRIVILEGE DOES NOT APPLY TO A DEMAND, NOT FOR ORAL
TESTIMONY, BUT FOR RECORDS REQUIRED BY THE APPELLATE DIVISION TO BE
KEPT BY AN ATTORNEY.  HELD:  THE JUDGMENT IS REVERSED.  PP. 512-520. 

MR. JUSTICE DOUGLAS, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE BRENNAN, CONCLUDED THAT: 

1. THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT, WHICH HAS
BEEN ABSORBED IN THE FOURTEENTH, EXTENDS ITS PROTECTION TO LAWYERS, AND
SHOULD NOT BE WATERED DOWN BY IMPOSING THE DISHONOR OF DISBARMENT AND
THE DEPRIVATION OF LIVELIHOOD AS A PENALTY FOR ASSERTING IT.  COHEN V.
HURLEY, SUPRA, IS OVERRULED.  PP. 514-516. 

2.  SINCE PETITIONER HAD BEEN DISBARRED ON THE THEORY THAT THE
PRIVILEGE AGAINST SELF-INCRIMINATION WAS APPLICABLE TO THE DEMANDED
RECORDS, BUT THAT THE INVOCATION OF THE PRIVILEGE COULD LEAD TO
DISBARMENT, HIS DISBARMENT CANNOT BE AFFIRMED ON THE GROUND THAT THE
PRIVILEGE WAS NOT APPLICABLE THERETO IN THE FIRST PLACE, AS THAT WOULD
DENY HIM AN OPPORTUNITY TO SHOW THAT THE RECORDS DEMANDED WERE OUTSIDE
THE SCOPE OF THE COURT RULE REQUIRING ATTORNEYS TO KEEP RECORDS
RELATING TO CONTINGENT FEE CASES, AND THAT THE RECORDS DEMANDED HAD NO
"PUBLIC ASPECTS."  PP. 516-519. 

MR. JUSTICE FORTAS CONCLUDED THAT: 

1.  COHEN V. HURLEY SHOULD BE OVERRULED, AND PETITIONER CANNOT BE
DISBARRED FOR ASSERTING HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  PP.
519-520. 

2.  THE RIGHT OF A LAWYER, WHO IS NOT AN EMPLOYEE OF THE STATE, TO
REMAIN SILENT, IS TO BE DISTINGUISHED FROM THAT OF A PUBLIC EMPLOYEE
WHO IS ASKED QUESTIONS BY HIS EMPLOYER DIRECTLY RELATING TO THE
PERFORMANCE OF HIS OFFICIAL DUTIES.  P. 519. 

3.  AS STATED IN MR. JUSTICE DOUGLAS' OPINION, THE ISSUE OF THE
VALIDITY AND SCOPE OF THE REQUIRED RECORDS DOCTRINE IS NOT
APPROPRIATELY PRESENTED HERE.  P. 520. 

SPEVACK V. KLEIN. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE DOUGLAS ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR.
JUSTICE BRENNAN CONCUR. 

THIS IS A PROCEEDING TO DISCIPLINE PETITIONER, A MEMBER OF THE NEW
YORK BAR, FOR PROFESSIONAL MISCONDUCT.  OF THE VARIOUS CHARGES MADE,
ONLY ONE SURVIVED, VIZ., THE REFUSAL OF PETITIONER TO HONOR A SUBPOENA
DUCES TECUM SERVED ON HIM IN THAT HE REFUSED TO PRODUCE THE DEMANDED
FINANCIAL RECORDS AND REFUSED TO TESTIFY AT THE JUDICIAL INQUIRY. 
PETITIONER'S SOLE DEFENSE WAS THAT THE PRODUCTION OF THE RECORDS AND
HIS TESTIMONY WOULD TEND TO INCRIMINATE HIM.  THE APPELLATE DIVISION OF
THE NEW YORK SUPREME COURT ORDERED PETITIONER DISBARRED, HOLDING THAT
THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION WAS NOT
AVAILABLE TO HIM IN LIGHT OF OUR DECISION IN COHEN V. HURLEY, 366 U.S.
117.  SEE 24 APP. DIV. 2D 653.  THE COURT OF APPEALS AFFIRMED, 16
N.Y.2D 1048, 213 N.E.2D 457, 17 N.Y.2D 490, 214 N.E.2D 373.  THE CASE
IS HERE ON CERTIORARI WHICH WE GRANTED TO DETERMINE WHETHER COHEN V.
HURLEY, SUPRA, HAD SURVIVED MALLOY V. HOGAN, 378 U.S. 1. 

COHEN V. HURLEY WAS A FIVE-TO-FOUR DECISION RENDERED IN 1961.  IT IS
PRACTICALLY ON ALL FOURS WITH THE PRESENT CASE.  THERE, AS HERE, AN
ATTORNEY RELYING ON HIS PRIVILEGE AGAINST SELF-INCRIMINATION REFUSED TO
TESTIFY AND WAS DISBARRED.  THE MAJORITY OF THE COURT ALLOWED NEW YORK
TO CONSTRUE HER OWN PRIVILEGE AGAINST SELF-INCRIMINATION SO AS NOT TO
MAKE IT AVAILABLE IN JUDICIAL INQUIRIES OF THIS CHARACTER (366 U.S., AT
125-127) AND WENT ON TO HOLD THAT THE SELF-INCRIMINATION CLAUSE OF THE
FIFTH AMENDMENT WAS NOT APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH.  ID., AT 127-129.  THE MINORITY TOOK THE VIEW THAT THE FULL
SWEEP OF THE FIFTH AMENDMENT HAD BEEN ABSORBED INTO THE FOURTEENTH AND
EXTENDED ITS PROTECTION TO LAWYERS AS WELL AS OTHER PERSONS. 

IN 1964 THE COURT IN ANOTHER FIVE-TO-FOUR DECISION HELD THAT THE SELF
INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT WAS APPLICABLE TO THE
STATES BY REASON OF THE FOURTEENTH.  MALLOY V. HOGAN, 378 U.S. 1. 
WHILE COHEN V. HURLEY WAS NOT OVERRULED, THE MAJORITY INDICATED THAT
THE PRINCIPLE ON WHICH IT RESTED HAD BEEN SERIOUSLY ERODED.  378 U.S.,
AT 11.  ONE MINORITY VIEW ESPOUSED BY MR. JUSTICE HARLAN AND MR.
JUSTICE CLARK STATED THAT COHEN V. HURLEY FLATLY DECIDED THAT THE SELF
INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT WAS NOT APPLICABLE AGAINST
THE STATES (ID., AT 17) AND URGED THAT IT BE FOLLOWED.  THE OTHERS IN
DISSENT - MR. JUSTICE WHITE AND MR. JUSTICE STEWART - THOUGHT THAT ON
THE FACTS OF THE CASE THE PRIVILEGE WAS NOT PROPERLY INVOKED AND THAT
THE STATE TRIAL JUDGE SHOULD HAVE BEEN SUSTAINED IN RULING THAT THE
ANSWERS WOULD NOT TEND TO INCRIMINATE.  ID., AT 33-38. 

THE APPELLATE DIVISION DISTINGUISHED MALLOY V. HOGAN ON THE GROUND
THAT THERE THE PETITIONER WAS NOT A MEMBER OF THE BAR.  24 APP. DIV.
2D, AT 654.  AND THE COURT OF APPEALS RESTED SQUARELY ON COHEN V.
HURLEY AS ONE OF THE TWO GROUNDS FOR AFFIRMANCE.  (FN1) 

AND SO THE QUESTION EMERGES WHETHER THE PRINCIPLE OF MALLOY V. HOGAN
IS INAPPLICABLE BECAUSE PETITIONER IS A MEMBER OF THE BAR.  WE CONCLUDE
THAT COHEN V. HURLEY SHOULD BE OVERRULED, THAT THE SELF-INCRIMINATION
CLAUSE OF THE FIFTH AMENDMENT HAS BEEN ABSORBED IN THE FOURTEENTH, THAT
IT EXTENDS ITS PROTECTION TO LAWYERS AS WELL AS TO OTHER INDIVIDUALS,
AND THAT IT SHOULD NOT BE WATERED DOWN BY IMPOSING THE DISHONOR OF
DISBARMENT AND THE DEPRIVATION OF A LIVELIHOOD AS A PRICE FOR ASSERTING
IT.  THESE VIEWS, EXPOUNDED IN THE DISSENTS IN COHEN V. HURLEY, NEED
NOT BE ELABORATED AGAIN. 

WE SAID IN MALLOY V. HOGAN: 

"THE FOURTEENTH AMENDMENT SECURES AGAINST STATE INVASION THE SAME
PRIVILEGE THAT THE FIFTH AMENDMENT GUARANTEES AGAINST FEDERAL
INFRINGEMENT - THE RIGHT OF A PERSON TO REMAIN SILENT UNLESS HE CHOOSES
TO SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN WILL, AND TO SUFFER NO
PENALTY  ...  FOR SUCH SILENCE."  378 U.S., AT 8.  (FN2) 

IN THIS CONTEXT "PENALTY" IS NOT RESTRICTED TO FINE OR IMPRISONMENT. 
IT MEANS, AS WE SAID IN GRIFFIN V. CALIFORNIA, 380 U.S. 609, THE
IMPOSITION OF ANY SANCTION WHICH MAKES ASSERTION OF THE FIFTH AMENDMENT
PRIVILEGE "COSTLY."  ID., AT 614.  WE HELD IN THAT CASE THAT THE FIFTH
AMENDMENT, OPERATING THROUGH THE FOURTEENTH, "FORBIDS EITHER COMMENT BY
THE PROSECUTION ON THE ACCUSED'S SILENCE OR INSTRUCTIONS BY THE COURT
THAT SUCH SILENCE IS EVIDENCE OF GUILT."  ID., AT 615.  WHAT WE SAID IN
MALLOY AND GRIFFIN IS IN THE TRADITION OF THE BROAD PROTECTION GIVEN
THE PRIVILEGE AT LEAST SINCE BOYD V. UNITED STATES, 116 U.S. 616, 634
635, WHERE COMPULSORY PRODUCTION OF BOOKS AND PAPERS OF THE OWNER OF
GOODS SOUGHT TO BE FORFEITED WAS HELD TO BE COMPELLING HIM TO BE A
WITNESS AGAINST HIMSELF. 

"IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS MILDEST AND LEAST
REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET
THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT APPROACHES AND
SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE.  THIS CAN ONLY BE
OBVIATED BY ADHERING TO THE RULE THAT CONSTITUTIONAL PROVISIONS FOR THE
SECURITY OF PERSON AND PROPERTY SHOULD BE LIBERALLY CONSTRUED.  A CLOSE
AND LITERAL CONSTRUCTION DEPRIVES THEM OF HALF THEIR EFFICACY, AND
LEADS TO GRADUAL DEPRECIATION OF THE RIGHT, AS IF IT CONSISTED MORE IN
SOUND THAN IN SUBSTANCE.  IT IS THE DUTY OF COURTS TO BE WATCHFUL FOR
THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST ANY STEALTHY
ENCROACHMENTS THEREON."  116 U.S., AT 635. 

THE THREAT OF DISBARMENT AND THE LOSS OF PROFESSIONAL STANDING,
PROFESSIONAL REPUTATION, AND OF LIVELIHOOD ARE POWERFUL FORMS OF
COMPULSION TO MAKE A LAWYER RELINQUISH THE PRIVILEGE.  THAT THREAT IS
INDEED AS POWERFUL AN INSTRUMENT OF COMPULSION AS "THE USE OF LEGAL
PROCESS TO FORCE FROM THE LIPS OF THE ACCUSED INDIVIDUAL THE EVIDENCE
NECESSARY TO CONVICT HIM  ...  ."  UNITED STATES V. WHITE, 322 U.S.
694, 698.  AS WE RECENTLY STATED IN MIRANDA V. ARIZONA, 384 U.S. 436,
461, "IN THIS COURT, THE PRIVILEGE HAS CONSISTENTLY BEEN ACCORDED A
LIBERAL CONSTRUCTION."  IT IS IN THAT TRADITION THAT WE OVERRULE COHEN
V. HURLEY.  WE FIND NO ROOM IN THE PRIVILEGE AGAINST SELF-INCRIMINATION
FOR CLASSIFICATIONS OF PEOPLE SO AS TO DENY IT TO SOME AND EXTEND IT TO
OTHERS.  LAWYERS ARE NOT EXCEPTED FROM THE WORDS "NO PERSON  ...  SHALL
BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF"; AND
WE CAN IMPLY NO EXCEPTION.  LIKE THE SCHOOL TEACHER IN SLOCHOWER V.
BOARD OF EDUCATION, 350 U.S. 551, AND THE POLICEMEN IN GARRITY V. NEW
JERSEY,  (FN3)  ANTE, P. 493, LAWYERS ALSO ENJOY FIRST-CLASS
CITIZENSHIP. 

THE COURT OF APPEALS ALTERNATELY AFFIRMED THE JUDGMENT DISBARRING
PETITIONER ON THE GROUND THAT UNDER SHAPIRO V. UNITED STATES, 335 U.S.
1, AND THE REQUIRED RECORDS DOCTRINE HE WAS UNDER A DUTY TO PRODUCE THE
WITHHELD RECORDS.  THE COURT OF APPEALS DID NOT ELABORATE ON THE POINT;
NOR DID THE APPELLATE DIVISION ADVERT TO IT.  AT THE TIME IN QUESTION
THE ONLY RULE GOVERNING THE MATTER WAS ENTITLED "PRESERVATION OF
RECORDS OF ACTIONS, CLAIMS AND PROCEEDINGS."  (FN4)  IT PROVIDED THAT
IN CASES INVOLVING "CONTINGENT FEE COMPENSATION" ATTORNEYS FOR ALL THE
PARTIES SHALL PRESERVE "THE PLEADINGS, RECORDS AND OTHER PAPERS
PERTAINING TO SUCH ACTION, CLAIM AND PROCEEDING, AND ALSO ALL DATA AND
MEMORANDA OF THE DISPOSITION THEREOF, FOR THE PERIOD OF AT LEAST FIVE
YEARS AFTER ANY SETTLEMENT OR SATISFACTION OF THE ACTION, CLAIM OR
PROCEEDING OR JUDGMENT OR FINAL ORDER THEREON, OR AFTER THE DISMISSAL
OR DISCONTINUANCE OF ANY ACTION OR PROCEEDING BROUGHT." 

THE DOCUMENTS SOUGHT IN THE SUBPOENA WERE PETITIONER'S DAYBOOK, CASH
RECEIPTS BOOK, CASH DISBURSEMENTS BOOK, CHECKBOOK STUBS, PETTY CASHBOOK
AND VOUCHERS, GENERAL LEDGER AND JOURNAL, CANCELED CHECKS AND BANK
STATEMENTS, PASSBOOKS AND OTHER EVIDENCES OF ACCOUNTS, RECORD OF LOANS
MADE, PAYROLL RECORDS, AND STATE AND FEDERAL TAX RETURNS AND WORKSHEETS
RELATIVE THERETO. 

THE SHAPIRO CASE DEALT WITH A FEDERAL PRICE CONTROL REGULATION
REQUIRING MERCHANTS TO KEEP SALES RECORDS.  THE COURT CALLED THEM
RECORDS WITH "PUBLIC ASPECTS," AS DISTINGUISHED FROM PRIVATE PAPERS
(335 U.S., AT 34); AND CONCLUDED BY A DIVIDED VOTE THAT THEIR COMPELLED
PRODUCTION DID NOT VIOLATE THE FIFTH AMENDMENT.  WE ARE ASKED TO
OVERRULE SHAPIRO.  BUT WE FIND IT UNNECESSARY TO REACH IT. 

RULE 5, REQUIRING THE KEEPING OF RECORDS, WAS BROAD AND GENERAL -
"THE PLEADINGS, RECORDS AND OTHER PAPERS PERTAINING TO SUCH ACTION,
CLAIM AND PROCEEDING, AND ALSO ALL DATA AND MEMORANDA OF THE
DISPOSITION THEREOF."  THE DETAILED FINANCIAL ASPECTS OF CONTINGENT-FEE
LITIGATION DEMANDED MIGHT POSSIBLY BY A BROAD, GENEROUS CONSTRUCTION OF
THE RULE BE BROUGHT WITHIN ITS INTENDMENT.  OUR PROBLEM, HOWEVER, IS
DIFFERENT.  NEITHER THE REFEREE OF THE INQUIRY, NOR COUNSEL FOR THE
INQUIRY, NOR THE APPELLATE DIVISION OF THE NEW YORK SUPREME COURT
QUESTIONED THE APPLICABILITY OF THE PRIVILEGE AGAINST SELF
INCRIMINATION TO THE RECORDS.  ALL PROCEEDED ON THE BASIS THAT
PETITIONER COULD INVOKE THE PRIVILEGE WITH RESPECT TO THE RECORDS, BUT
THAT THE PRICE HE MIGHT HAVE TO PAY WAS DISBARMENT.  THE COURT OF
APPEALS WAS THE FIRST TO SUGGEST THAT THE PRIVILEGE AGAINST SELF
INCRIMINATION WAS NOT APPLICABLE TO THE RECORDS.  PETITIONER, HOWEVER,
HAD BEEN DISBARRED ON THE THEORY THAT THE PRIVILEGE WAS APPLICABLE TO
THE RECORDS, BUT THAT THE INVOCATION OF THE PRIVILEGE COULD LEAD TO
DISBARMENT.  HIS DISBARMENT CANNOT BE AFFIRMED ON THE GROUND THAT THE
PRIVILEGE WAS NOT APPLICABLE IN THE FIRST PLACE.  COLE V. ARKANSAS, 333
U.S. 196, 201.  FOR THAT PROCEDURE WOULD DENY HIM ALL OPPORTUNITY AT
THE TRIAL TO SHOW THAT THE RULE, FAIRLY CONSTRUED AND UNDERSTOOD,
SHOULD NOT BE GIVEN A BROAD SWEEP  (FN5) AND TO MAKE A RECORD THAT THE
DOCUMENTS DEMANDED BY THE SUBPOENA HAD NO "PUBLIC ASPECTS" WITHIN THE
REQUIRED RECORDS RULE BUT WERE PRIVATE PAPERS.  REVERSED. 

FN1  "ORDER AFFIRMED ON THE AUTHORITY OF COHEN V. HURLEY (366 U.S.
117) AND ON THE FURTHER GROUND THAT THE FIFTH AMENDMENT PRIVILEGE DOES
NOT APPLY TO A DEMAND, NOT FOR ORAL TESTIMONY, BUT THAT AN ATTORNEY
PRODUCE RECORDS REQUIRED BY LAW TO BE KEPT BY HIM (DAVIS V. UNITED
STATES, 328 U.S. 582; SHAPIRO V. UNITED STATES, 335 U.S. 1)."  16
N.Y.2D 1048, 1050, 213 N.E.2D 457-458. 

FN2  KIMM V. ROSENBERG, 363 U.S. 405, MUCH RELIED ON HERE, WAS A FIVE
TO-FOUR DECISION THE OTHER WAY AND ACCURATELY REFLECTED THE PRE-MALLOY
V. HOGAN CONSTRUCTION OF THE FIFTH AMENDMENT.  WE DO NOT STOP TO RE
EXAMINE ALL THE OTHER PRIOR DECISIONS OF THAT VINTAGE TO DETERMINE
WHICH OF THEM, IF ANY, WOULD BE DECIDED THE OTHER WAY BECAUSE OF "THE
RIGHT OF A PERSON TO REMAIN SILENT UNLESS HE CHOOSES TO SPEAK IN THE
UNFETTERED EXERCISE OF HIS OWN WILL, AND TO SUFFER NO PENALTY  ...  FOR
SUCH SILENCE," AS DECLARED IN MALLOY V. HOGAN, SUPRA, AT 8. 

FN3  WHETHER A POLICEMAN, WHO INVOKES THE PRIVILEGE WHEN HIS CONDUCT
AS A POLICE OFFICER IS QUESTIONED IN DISCIPLINARY PROCEEDINGS, MAY BE
DISCHARGED FOR REFUSING TO TESTIFY IS A QUESTION WE DID NOT REACH. 

FN4  RULE 5 OF THE SPECIAL RULES OF THE SECOND DEPT., APPELLATE
DIVISION.  RULE 5 WAS SUBSEQUENTLY AMENDED AND RENUMBERED AS SPECIAL
RULE IV(6).  SEE CIVIL PRACTICE ANNUAL OF NEW YORK 9-24 (1964). 

FN5  COUNSEL FOR RESPONDENT CONCEDED ON ORAL ARGUMENT THAT THE
SUBPOENA WAS BROADER THAN RULE 5: 

"Q.  IS THIS SUBPOENA COEXTENSIVE WITH THE PROVISIONS OF THE ORDER
ABOUT KEEPING THE FINANCIAL RECORDS OR DOES THE SUBPOENA GO BEYOND? 

"A.  I WOULD SAY IN MY JUDGMENT IT GOES BEYOND  ...  .  THERE IS ROOM
FOR REASONABLE ARGUMENT THAT SOME OF THE ITEMS CALLED FOR IN THE
SUBPOENA MIGHT PERHAPS BE ARGUED TO NOT COME WITHIN THE REQUIRED
RECORDS I AM TALKING ABOUT. 

"Q.  WOULD YOU MIND RELATING THOSE TO US?  TELL US WHAT THOSE ARE
...  .  CASH DISBURSEMENTS? 

"A.  I WOULD SAY DO COME UNDER THE RECORDS  ...  .  I WOULD EXCLUDE
AS NOT COMING WITHIN THE STATUTE THE FEDERAL AND STATE TAX RETURNS FOR
EXAMPLE  ...  . 

"Q.  HOW ABOUT WORKSHEETS  ...  ? 

"A.  WORKSHEETS?  OUT  ...  . 

"Q.  YOU MEAN ALL OF ITEM 12  ...  WOULD BE OUT? 

"A.  ITEM 12 - COPIES OF FEDERAL AND STATE TAX RETURNS, ACCOUNTANTS'
WORKSHEETS, AND ALL OTHER ...  I DO NOT INCLUDE THEM. 

"Q.  THEY WOULD ALL BE OUTSIDE THE RULES? 

"A.  YES. 

     *         *         *      *         * 

"Q.  BUT THE DEMAND WAS FOR RECORDS BEYOND THE RECORDS THAT HE WAS
REQUIRED TO KEEP. 

     *  *         *         *         * 

"A.  THE NEW YORK COURT OF APPEALS, SPEAKING FOR THE STATE OF NEW
YORK, SAYS THESE ARE REQUIRED RECORDS. 

"Q.  I SUPPOSE THAT IF HE PRODUCED JUST THE RECORDS THAT WERE
REQUIRED - THAT HE WAS REQUIRED TO KEEP - THAT THAT MIGHT VERY WELL
CONSTITUTE A WAIVER AS TO OTHER RECORDS. 

"A.  NO, NO IT WOULD NOT  ...  . 

"Q.  WHY NOT? 

"A.  BECAUSE IF THE OTHER RECORDS WERE HELD NOT TO COME WITHIN THE
REQUIRED RECORDS DOCTRINE HE WOULD HAVE THE PRIVILEGE TO DO THAT, BUT
HE HAS NO PRIVILEGE.    "Q.  I AM NOT SURE.  ARE YOU SURE ABOUT THAT? 
...  I WOULD SAY THAT THE COMMON UNDERSTANDING IS THAT IF HE PRODUCES
SOME OF THE RECORDS RELATING TO A GIVEN SUBJECT MATTER, THAT IS A
WAIVER OF PRIVILEGE AS TO THE BALANCE OF THE RECORDS RELATING TO THE
SUBJECT MATTER.  AM I WRONG ABOUT THAT? 

"A.  I WOULD NOT AGREE WITH THAT.  IT IS AN ARGUMENT THAT COULD BE
MADE BUT I WOULD DISAGREE WITH IT FOR THIS REASON.  UNDER THE DOCTRINE
OF SHAPIRO V. UNITED STATES, HE HAS NO FIFTH AMENDMENT PRIVILEGE AS TO
RECORDS THAT ARE REQUIRED TO BE KEPT.  HE DOES HAVE FIFTH AMENDMENT
PRIVILEGE AS TO RECORDS HE IS NOT REQUIRED TO KEEP AND ALSO AS TO
REFUSAL TO GIVE ORAL TESTIMONY. 

MR. JUSTICE FORTAS, CONCURRING IN THE JUDGMENT.    I AGREE THAT COHEN
V. HURLEY, 366 U.S. 117 (1961), SHOULD BE OVERRULED.  BUT I WOULD
DISTINGUISH BETWEEN A LAWYER'S RIGHT TO REMAIN SILENT AND THAT OF A
PUBLIC EMPLOYEE WHO IS ASKED QUESTIONS SPECIFICALLY, DIRECTLY, AND
NARROWLY RELATING TO THE PERFORMANCE OF HIS OFFICIAL DUTIES AS
DISTINGUISHED FROM HIS BELIEFS OR OTHER MATTERS THAT ARE NOT WITHIN THE
SCOPE OF THE SPECIFIC DUTIES WHICH HE UNDERTOOK FAITHFULLY TO PERFORM
AS PART OF HIS EMPLOYMENT BY THE STATE.  THIS COURT HAS NEVER HELD, FOR
EXAMPLE, THAT A POLICEMAN MAY NOT BE DISCHARGED FOR REFUSAL IN
DISCIPLINARY PROCEEDINGS TO TESTIFY AS TO HIS CONDUCT AS A POLICE
OFFICER.  IT IS QUITE A DIFFERENT MATTER IF THE STATE SEEKS TO USE THE
TESTIMONY GIVEN UNDER THIS LASH IN A SUBSEQUENT CRIMINAL PROCEEDING. 
GARRITY V. NEW JERSEY, ANTE, P. 493. 

BUT A LAWYER IS NOT AN EMPLOYEE OF THE STATE.  HE DOES NOT HAVE THE
RESPONSIBILITY OF AN EMPLOYEE TO ACCOUNT TO THE STATE FOR HIS ACTIONS
BECAUSE HE DOES NOT PERFORM THEM AS AGENT OF THE STATE.  HIS
RESPONSIBILITY TO THE STATE IS TO OBEY ITS LAWS AND THE RULES OF
CONDUCT THAT IT HAS GENERALLY LAID DOWN AS PART OF ITS LICENSING
PROCEDURES.  THE SPECIAL RESPONSIBILITIES THAT HE ASSUMES AS LICENSEE
OF THE STATE AND OFFICER OF THE COURT DO NOT CARRY WITH THEM A
DIMINUTION, HOWEVER LIMITED, OF HIS FIFTH AMENDMENT RIGHTS. 
ACCORDINGLY, I AGREE THAT SPEVACK COULD NOT BE DISBARRED FOR ASSERTING
HIS PRIVILEGE AGAINST SELF-INCRIMINATION. 

IF THIS CASE PRESENTED THE QUESTION WHETHER A LAWYER MIGHT BE
DISBARRED FOR REFUSAL TO KEEP OR TO PRODUCE, UPON PROPERLY AUTHORIZED
AND PARTICULARIZED DEMAND, RECORDS WHICH THE LAWYER WAS LAWFULLY AND
PROPERLY REQUIRED TO KEEP BY THE STATE AS A PROPER PART OF ITS
FUNCTIONS IN RELATION TO HIM AS LICENSOR OF HIS HIGH CALLING, I SHOULD
FEEL COMPELLED TO VOTE TO AFFIRM, ALTHOUGH I WOULD BE PREPARED IN AN
APPROPRIATE CASE TO RE-EXAMINE THE SCOPE OF THE PRINCIPLE ANNOUNCED IN
SHAPIRO V. UNITED STATES, 335 U.S. 1 (1948).  I AM NOT PREPARED TO
INDICATE DOUBT AS TO THE ESSENTIAL VALIDITY OF SHAPIRO.  HOWEVER, I
AGREE THAT THE REQUIRED RECORDS ISSUE IS NOT APPROPRIATELY PRESENTED
HERE, FOR THE REASONS STATED BY MY BROTHER DOUGLAS.  ON THIS BASIS I
JOIN IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE STEWART
JOIN, DISSENTING. 

THIS DECISION, MADE IN THE NAME OF THE CONSTITUTION, PERMITS A LAWYER
SUSPECTED OF PROFESSIONAL MISCONDUCT TO THWART DIRECT OFFICIAL INQUIRY
OF HIM WITHOUT FEAR OF DISCIPLINARY ACTION.  WHAT IS DONE TODAY WILL BE
DISHEARTENING AND FRUSTRATING TO COURTS AND BAR ASSOCIATIONS THROUGHOUT
THE COUNTRY IN THEIR EFFORTS TO MAINTAIN HIGH STANDARDS AT THE BAR. 

IT EXPOSES THIS COURT ITSELF TO THE POSSIBLE INDIGNITY THAT IT MAY
ONE DAY HAVE TO ADMIT TO ITS OWN BAR SUCH A LAWYER UNLESS IT CAN
SOMEHOW GET AT THE TRUTH OF SUSPICIONS, THE INVESTIGATION OF WHICH THE
APPLICANT HAS PREVIOUSLY SUCCEEDED IN BLOCKING.  FOR I CAN PERCEIVE NO
DISTINCTION BETWEEN "ADMISSION" AND "DISBARMENT" IN THE RATIONALE OF
WHAT IS NOW HELD.  THE DECISION MIGHT EVEN LEND SOME COLOR OF SUPPORT
FOR JUSTIFYING THE APPOINTMENT TO THE BENCH OF A LAWYER WHO, LIKE
PETITIONER, PREVENTS FULL INQUIRY INTO HIS PROFESSIONAL BEHAVIOR.  AND,
STILL MORE PERVASIVELY, THIS DECISION CAN HARDLY FAIL TO ENCOURAGE
ONCOMING GENERATIONS OF LAWYERS TO THINK OF THEIR CALLING AS IMPOSING
ON THEM NO HIGHER STANDARDS OF BEHAVIOR THAN MIGHT BE ACCEPTABLE IN THE
GENERAL MARKETPLACE.  THE SOUNDNESS OF A CONSTITUTIONAL DOCTRINE
CARRYING SUCH DENIGRATING IMPORT FOR OUR PROFESSION IS SURELY SUSPECT
ON ITS FACE. 

SIX YEARS AGO A MAJORITY OF THIS COURT, IN COHEN V. HURLEY, 366 U.S.
117, SET ITS FACE AGAINST THE DOCTRINE THAT NOW PREVAILS, BRINGING TO
BEAR IN SUPPORT OF THE COURT'S HOLDING, AMONG OTHER THINGS, THE THEN
ESTABLISHED CONSTITUTIONAL PROPOSITION THAT THE FOURTEENTH AMENDMENT
DID NOT MAKE APPLICABLE TO THE STATES THE FIFTH AMENDMENT AS SUCH. 
THREE YEARS LATER ANOTHER MAJORITY OF THE COURT, IN MALLOY V. HOGAN,
378 U.S. 1, DECIDED TO MAKE THE FIFTH AMENDMENT APPLICABLE TO THE
STATES AND IN DOING SO CAST DOUBT ON THE CONTINUING VITALITY OF COHEN
V. HURLEY.  THE QUESTION NOW IS WHETHER MALLOY REQUIRES THE OVERRULING
OF COHEN IN ITS ENTIRETY.  FOR REASONS THAT FOLLOW I THINK IT CLEAR
THAT IT DOES NOT. 

IT SHOULD FIRST BE EMPHASIZED THAT THE ISSUE HERE IS PLAINLY NOT
WHETHER LAWYERS MAY "ENJOY FIRST-CLASS CITIZENSHIP."  NOR IS THE ISSUE
WHETHER LAWYERS MAY BE DEPRIVED OF THEIR FEDERAL PRIVILEGE AGAINST SELF
INCRIMINATION, WHETHER OR NOT CRIMINAL PROSECUTION IS UNDERTAKEN
AGAINST THEM.  THESE DIVERSIONARY QUESTIONS HAVE OF COURSE NOT BEEN
PRESENTED OR EVEN REMOTELY SUGGESTED BY THIS CASE EITHER HERE OR IN THE
COURTS OF NEW YORK.  THE PLURALITY OPINION'S VIVID RHETORIC THUS SERVES
ONLY TO OBSCURE THE ISSUES WITH WHICH WE ARE ACTUALLY CONFRONTED, AND
TO HINDER THEIR SERIOUS CONSIDERATION.  THE TRUE QUESTION HERE IS
INSTEAD THE PROPER SCOPE AND EFFECT OF THE PRIVILEGE AGAINST SELF
INCRIMINATION UNDER THE FOURTEENTH AMENDMENT IN STATE DISCIPLINARY
PROCEEDINGS AGAINST ATTORNEYS.  (FN1)  IN PARTICULAR, WE ARE REQUIRED
TO DETERMINE WHETHER PETITIONER'S DISBARMENT FOR HIS FAILURE TO PROVIDE
INFORMATION RELEVANT TO CHARGES OF MISCONDUCT IN CARRYING ON HIS LAW
PRACTICE IMPERMISSIBLY VITIATED THE PROTECTION AFFORDED BY THE
PRIVILEGE.  THIS IMPORTANT QUESTION WARRANTS MORE COMPLETE AND
DISCRIMINATING ANALYSIS THAN THAT GIVEN TO IT BY THE PLURALITY
OPINION. 

THIS COURT REITERATED ONLY LAST TERM THAT THE CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION "HAS NEVER BEEN GIVEN THE FULL
SCOPE WHICH THE VALUES IT HELPS TO PROTECT SUGGEST."  SCHMERBER V.
CALIFORNIA, 384 U.S. 757, 762.  THE CONSTITUTION CONTAINS NO FORMULAE
WITH WHICH WE CAN CALCULATE THE AREAS WITHIN THIS "FULL SCOPE" TO WHICH
THE PRIVILEGE SHOULD EXTEND, AND THE COURT HAS THEREFORE BEEN OBLIGED
TO FASHION FOR ITSELF STANDARDS FOR THE APPLICATION OF THE PRIVILEGE. 
IN FEDERAL CASES STEMMING FROM FIFTH AMENDMENT CLAIMS, THE COURT HAS
CHIEFLY DERIVED ITS STANDARDS FROM CONSIDERATION OF TWO FACTORS:  THE
HISTORY AND PURPOSES OF THE PRIVILEGE, AND THE CHARACTER AND URGENCY OF
THE OTHER PUBLIC INTERESTS INVOLVED.  SEE, E.G., ORLOFF V. WILLOUGHBY,
345 U.S. 83, DAVIS V. UNITED STATES, 328 U.S. 582; SHAPIRO V. UNITED
STATES, 335 U.S. 1.  IF, AS MALLOY V. HOGAN, SUPRA, SUGGESTS, THE
FEDERAL STANDARDS IMPOSED BY THE FIFTH AMENDMENT ARE NOW TO BE EXTENDED
TO THE STATES THROUGH THE FOURTEENTH AMENDMENT, SEE ALSO GRIFFIN V.
CALIFORNIA, 380 U.S. 609, IT WOULD FOLLOW THAT THESE SAME FACTORS MUST
BE NO LESS RELEVANT IN CASES CENTERING ON FOURTEENTH AMENDMENT CLAIMS. 
IN ANY EVENT, THE CONSTRUCTION CONSISTENTLY GIVEN TO THE FOURTEENTH
AMENDMENT BY THIS COURT WOULD REQUIRE THEIR CONSIDERATION.  BATES V.
CITY OF LITTLE ROCK, 361 U.S. 516.  I THEREFORE FIRST TURN TO THESE
FACTORS TO ASSESS THE VALIDITY UNDER THE FOURTEENTH AMENDMENT OF
PETITIONER'S DISBARMENT. 

IT CANNOT BE CLAIMED THAT THE PURPOSES SERVED BY THE NEW YORK RULES
AT ISSUE HERE, COMPENDIOUSLY AIMED AT "AMBULANCE CHASING" AND ITS
ATTENDANT EVILS, ARE UNIMPORTANT OR UNRELATED TO THE PROTECTION OF
LEGITIMATE STATE INTERESTS.  THIS COURT HAS OFTEN HELD THAT THE STATES
HAVE BROAD AUTHORITY TO DEVISE BOTH REQUIREMENTS FOR ADMISSION AND
STANDARDS OF PRACTICE FOR THOSE WHO WISH TO ENTER THE PROFESSIONS. 
E.G., HAWKER V. NEW YORK, 170 U.S. 189; DENT V. WEST VIRGINIA, 129 U.S.
114; BARSKY V. BOARD OF REGENTS, 347 U.S. 442.  THE STATES MAY DEMAND
ANY QUALIFICATIONS WHICH HAVE "A RATIONAL CONNECTION WITH THE
APPLICANT'S FITNESS OR CAPACITY," SCHWARE V. BOARD OF BAR EXAMINERS,
353 U.S. 232, 239, AND MAY EXCLUDE ANY APPLICANT WHO FAILS TO SATISFY
THEM.  IN PARTICULAR, A STATE MAY REQUIRE EVIDENCE OF GOOD CHARACTER,
AND MAY PLACE THE ONUS OF ITS PRODUCTION UPON THE APPLICANT. 
KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36.  FINALLY, A STATE
MAY WITHOUT CONSTITUTIONAL OBJECTION REQUIRE IN THE SAME FASHION
CONTINUING EVIDENCE OF PROFESSIONAL AND MORAL FITNESS AS A CONDITION OF
THE RETENTION OF THE RIGHT TO PRACTICE.  COHEN V. HURLEY, 366 U.S.
117.  ALL THIS IS IN NO WAY QUESTIONED BY TODAY'S DECISION. 

AS ONE PREREQUISITE OF CONTINUED PRACTICE IN NEW YORK, THE APPELLATE
DIVISION, SECOND DEPARTMENT, OF THE SUPREME COURT OF NEW YORK HAS
DETERMINED THAT ATTORNEYS MUST ACTIVELY ASSIST THE COURTS AND THE
APPROPRIATE PROFESSIONAL GROUPS IN THE PREVENTION AND DETECTION OF
UNETHICAL LEGAL ACTIVITIES.  THE SECOND DEPARTMENT DEMANDS THAT
ATTORNEYS MAINTAIN VARIOUS RECORDS, FILE STATEMENTS OF RETAINER IN
CERTAIN KINDS OF CASES, AND UPON REQUEST PROVIDE INFORMATION, ALL
RELEVANT TO THE USE BY THE ATTORNEYS OF CONTINGENT FEE ARRANGEMENTS IN
SUCH CASES.  THESE RULES ARE INTENDED TO PROTECT THE PUBLIC FROM THE
ABUSES REVEALED BY A LENGTHY SERIES OF INVESTIGATIONS OF MALPRACTICES
IN THE GEOGRAPHICAL AREA REPRESENTED BY THE SECOND DEPARTMENT.  IT
CANNOT BE SAID THAT THESE CONDITIONS ARE ARBITRARY OR UNREASONABLE, OR
THAT THEY ARE UNRELATED TO AN ATTORNEY'S CONTINUED FITNESS TO
PRACTICE.  ENGLISH COURTS SINCE EDWARD I HAVE ENDEAVORED TO REGULATE
THE QUALIFICATION AND PRACTICE OF LAWYERS, ALWAYS IN HOPE THAT THIS
MIGHT BETTER ASSURE THE INTEGRITY AND EVENHANDEDNESS OF THE
ADMINISTRATION OF JUSTICE.  (FN2)  VERY SIMILAR EFFORTS HAVE BEEN MADE
IN THE UNITED STATES SINCE THE 17TH CENTURY.  (FN3)  THESE EFFORTS HAVE
PROTECTED THE SYSTEMS OF JUSTICE IN BOTH COUNTRIES FROM ABUSE, AND HAVE
DIRECTLY CONTRIBUTED TO PUBLIC CONFIDENCE IN THOSE SYSTEMS.  SUCH
EFFORTS GIVE APPROPRIATE RECOGNITION TO THE PRINCIPLE ACCEPTED BOTH
HERE AND IN ENGLAND THAT LAWYERS ARE OFFICERS OF THE COURT WHO PERFORM
A FUNDAMENTAL ROLE IN THE ADMINISTRATION OF JUSTICE.  (FN4)  THE RULES
AT ISSUE HERE ARE IN FORM AND SPIRIT A CONTINUATION OF THESE EFFORTS,
AND ACCORDINGLY ARE REASONABLY CALCULATED TO SERVE THE MOST ENDURING
INTERESTS OF THE CITIZENS OF NEW YORK. 

WITHOUT DENYING THE URGENCY OR SIGNIFICANCE OF THE PUBLIC PURPOSES
SERVED BY THESE RULES, THE PLURALITY OPINION HAS SEEMINGLY CONCLUDED
THAT THEY MAY NOT BE ENFORCED BECAUSE ANY CONSEQUENCE OF A CLAIM OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION WHICH RENDERS THAT CLAIM "COSTLY"
IS AN "INSTRUMENT OF COMPULSION" WHICH IMPERMISSIBLY INFRINGES ON THE
PROTECTION OFFERED BY THE PRIVILEGE.   APART FROM BRIEF OBITER DICTA IN
RECENT OPINIONS OF THIS COURT, THIS BROAD PROPOSITION IS ENTIRELY
WITHOUT SUPPORT IN THE CONSTRUCTION HITHERTO GIVEN TO THE PRIVILEGE,
AND IS DIRECTLY INCONSISTENT WITH A SERIES OF CASES IN WHICH THIS COURT
HAS INDICATED THE PRINCIPLES WHICH ARE PROPERLY APPLICABLE HERE.  THE
COURT HAS NOT BEFORE HELD THAT THE FEDERAL GOVERNMENT AND THE STATES
ARE FORBIDDEN TO PERMIT ANY CONSEQUENCES TO RESULT FROM A CLAIM OF THE
PRIVILEGE; IT HAS INSTEAD RECOGNIZED THAT SUCH CONSEQUENCES MAY VARY
WIDELY IN KIND AND INTENSITY, AND THAT THESE DIFFERENCES WARRANT
INDIVIDUAL EXAMINATION BOTH OF THE HAZARD, IF ANY, OFFERED TO THE
ESSENTIAL PURPOSES OF THE PRIVILEGE, AND OF THE PUBLIC INTERESTS
PROTECTED BY THE CONSEQUENCE.  THIS PROCESS IS FAR BETTER CALCULATED
THAN THE BROAD PROHIBITION EMBRACED BY THE PLURALITY TO SERVE BOTH THE
PURPOSES OF THE PRIVILEGE AND THE OTHER IMPORTANT PUBLIC VALUES WHICH
ARE OFTEN AT STAKE IN SUCH CASES.  IT WOULD ASSURE THE INTEGRITY OF THE
PRIVILEGE, AND YET GUARANTEE THE MOST GENEROUS OPPORTUNITIES FOR THE
PURSUIT OF OTHER PUBLIC VALUES, BY SELECTING THE RULE OR STANDARD MOST
APPROPRIATE FOR THE HAZARDS AND CHARACTERISTICS OF EACH CONSEQUENCE. 

ONE SUCH RULE HAS ALREADY BEEN PLAINLY APPROVED BY THIS COURT.  IT
SEEMS CLEAR TO ME THAT THIS RULE IS APPLICABLE TO THE SITUATION NOW
BEFORE US.  THE COURT HAS REPEATEDLY RECOGNIZED THAT IT IS PERMISSIBLE
TO DENY A STATUS OR AUTHORITY TO A CLAIMANT OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION IF HIS CLAIM HAS PREVENTED FULL ASSESSMENT OF HIS
QUALIFICATIONS FOR THE STATUS OR AUTHORITY.  UNDER THIS RULE, THE
APPLICANT MAY NOT BOTH DECLINE TO DISCLOSE INFORMATION NECESSARY TO
DEMONSTRATE HIS FITNESS, AND YET DEMAND THAT HE RECEIVE THE BENEFITS OF
THE STATUS.  HE MAY NOT BY HIS INTERJECTION OF THE PRIVILEGE EITHER
DIMINISH HIS OBLIGATION TO ESTABLISH HIS QUALIFICATIONS, OR ESCAPE THE
CONSEQUENCES EXACTED BY THE STATE FOR A FAILURE TO SATISFY THAT
OBLIGATION. 

THIS RULE WAS ESTABLISHED BY THIS COURT IN ORLOFF V. WILLOUGHBY, 345
U.S. 83.  THE COURT THERE HELD THAT A DOCTOR WHO REFUSED, UNDER A CLAIM
OF THE PRIVILEGE AGAINST SELF-INCRIMINATION, TO DIVULGE WHETHER HE WAS
A COMMUNIST WAS NOT ENTITLED BY RIGHT TO RECEIVE A COMMISSION AS AN
ARMY OFFICER, ALTHOUGH HE HAD APPARENTLY SATISFIED EVERY OTHER
PREREQUISITE FOR A COMMISSION.  THE COURT EXPRESSLY NOTED THAT "NO ONE
BELIEVES HE CAN BE PUNISHED" FOR ASSERTING THE PRIVILEGE, BUT SAID THAT
IT HAD "NO HESITATION" IN HOLDING THAT THE PETITIONER NONETHELESS COULD
NOT BOTH RELY ON THE PRIVILEGE TO DENY RELEVANT INFORMATION TO THE
COMMISSIONING AUTHORITIES AND DEMAND THAT HE BE APPOINTED TO A POSITION
OF "HONOR AND TRUST."  345 U.S., AT 91.  THE COURT CONCLUDED THAT "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."  IBID.    ANALOGOUS PROBLEMS WERE INVOLVED IN KIMM V.
ROSENBERG, 363 U.S. 405, IN WHICH THE COURT HELD THAT AN ALIEN WHOSE
DEPORTATION HAD BEEN ORDERED WAS INELIGIBLE FOR A DISCRETIONARY ORDER
PERMITTING HIS VOLUNTARY DEPARTURE.  THE ALIEN WAS HELD TO BE
INELIGIBLE BECAUSE HE HAD FAILED TO ESTABLISH THAT HE WAS NOT
AFFILIATED WITH THE COMMUNIST PARTY, IN THAT HE REFUSED TO ANSWER
QUESTIONS ABOUT MEMBERSHIP IN THE PARTY ON GROUNDS THAT THE ANSWERS
MIGHT INCRIMINATE HIM.  THE PETITIONER COULD NOT PREVENT THE
APPLICATION OF A SANCTION IMPOSED AS A RESULT OF HIS SILENCE BY
INTERPOSING THE PRIVILEGE AGAINST SELF-INCRIMINATION AS A BASIS FOR
THAT SILENCE. 

THESE PRINCIPLES HAVE ALSO BEEN EMPLOYED BY THIS COURT TO HOLD THAT
FAILURE TO INCRIMINATE ONE'S SELF CAN RESULT IN DENIAL OF THE REMOVAL
OF ONE'S CASE FROM A STATE TO A FEDERAL COURT, MARYLAND V. SOPER (NO.
1), 270 U.S. 9, AND BY THE FOURTH CIRCUIT TO HOLD THAT A BANKRUPT'S
FAILURE TO DISCLOSE THE DISPOSITION OF HIS PROPERTY, ALTHOUGH
DISCLOSURE MIGHT INCRIMINATE HIM, REQUIRES THE DENIAL OF A DISCHARGE IN
BANKRUPTCY.  KAUFMAN V. HURWITZ, 176 F.2D 210. 

THIS COURT HAS APPLIED SIMILAR PRINCIPLES IN A SERIES OF CASES
INVOLVING CLAIMS UNDER THE FOURTEENTH AMENDMENT.  THESE CASES ALL
ANTEDATE MALLOY V. HOGAN, AND THUS ARE PRESUMABLY NOW SUBJECT TO THE
"FEDERAL STANDARDS," BUT UNTIL TODAY THOSE STANDARDS INCLUDED THE
PRINCIPLES OF ORLOFF V. WILLOUGHBY, AND MALLOY V. HOGAN THEREFORE COULD
NOT ALONE REQUIRE A DIFFERENT RESULT.  THE FULCRUM OF THESE CASES HAS
BEEN SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551.  THE APPELLANT
THERE WAS AN ASSOCIATE PROFESSOR AT BROOKLYN COLLEGE WHO INVOKED THE
FIFTH AMENDMENT PRIVILEGE BEFOR  AN INVESTIGATING COMMITTEE OF THE
UNITED STATES SENATE, AND WAS SUBSEQUENTLY DISCHARGED FROM HIS POSITION
AT THE COLLEGE BY REASON OF THAT OCCURRENCE.  THE COURT HELD THAT HIS
REMOVAL WAS A DENIAL OF THE DUE PROCESS DEMANDED BY THE FOURTEENTH
AMENDMENT.  ITS REASONS WERE APPARENTLY TWO:  FIRST, THE BOARD HAD
ATTACHED A "SINISTER MEANING," IN THE FORM OF AN IMPUTATION OF GUILT,
TO SLOCHOWER'S INVOCATION OF THE PRIVILEGE; AND SECOND, THE BOARD WAS
NOT ENGAGED IN A BONA FIDE EFFORT TO ELICIT INFORMATION RELEVANT TO
ASSESS THE "QUALIFICATIONS OF ITS EMPLOYEES."  THE STATE AUTHORITIES
"HAD POSSESSED THE PERTINENT INFORMATION FOR 12 YEARS," AND IN ANY
EVENT THE QUESTIONS PUT TO SLOCHOWER BY THE COMMITTEE WERE "WHOLLY
UNRELATED" TO HIS UNIVERSITY FUNCTIONS.  350 U.S., AT 558. 

THE ELEMENTS OF THE HOLDING IN SLOCHOWER HAVE SUBSEQUENTLY BEEN
CAREFULLY CONSIDERED ON SEVERAL OCCASIONS BY THIS COURT.  SEE, E.G.,
BEILAN V. BOARD OF EDUCATION, 357 U.S. 399; LERNER V. CASEY, 357 U.S.
468; NELSON V. LOS ANGELES COUNTY, 362 U.S. 1.  THESE CASES, WHEN READ
WITH SLOCHOWER, MAKE PLAIN THAT SO LONG AS STATE AUTHORITIES DO NOT
DERIVE ANY IMPUTATION OF GUILT FROM A CLAIM OF THE PRIVILEGE, THEY MAY
IN THE COURSE OF A BONA FIDE ASSESSMENT OF AN EMPLOYEE'S FITNESS FOR
PUBLIC EMPLOYMENT REQUIRE THAT THE EMPLOYEE DISCLOSE INFORMATION
REASONABLY RELATED TO HIS FITNESS, AND MAY ORDER HIS DISCHARGE IF HE
DECLINES.  IDENTICAL PRINCIPLES HAVE BEEN APPLIED BY THIS COURT TO
APPLICANTS FOR ADMISSION TO THE BAR WHO HAVE REFUSED TO PRODUCE
INFORMATION PERTINENT TO THEIR PROFESSIONAL AND MORAL QUALIFICATIONS. 
KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36; IN RE ANASTAPLO,
366 U.S. 82.  IN SUM, ALL THESE CASES ADOPTED PRINCIPLES UNDER THE
FOURTEENTH AMENDMENT WHICH ARE PLAINLY CONGRUENT WITH THOSE APPLIED IN
ORLOFF V. WILLOUGHBY, SUPRA, AND OTHER FEDERAL CASES TO FIFTH AMENDMENT
CLAIMS. 

THE PETITIONER HERE DOES NOT CONTEND, AND THE PLURALITY OPINION DOES
NOT SUGGEST, THAT THE STATE COURTS HAVE DERIVED ANY INFERENCE OF GUILT
FROM PETITIONER'S CLAIM OF THE PRIVILEGE.  THE STATE COURTS HAVE
EXPRESSLY DISCLAIMED ALL SUCH INFERENCES.  24 APP. DIV. 2D 653, 654. 
NOR IS IT SUGGESTED THAT THE PROCEEDINGS AGAINST PETITIONER WERE NOT AN
EFFORT IN GOOD FAITH TO ASSESS HIS QUALIFICATIONS FOR CONTINUED
PRACTICE IN NEW YORK, OR THAT THE INFORMATION SOUGHT FROM PETITIONER
WAS NOT REASONABLY RELEVANT TO THOSE QUALIFICATIONS.  IT WOULD
THEREFORE FOLLOW THAT UNDER THE CONSTRUCTION CONSISTENTLY GIVEN BY THIS
COURT BOTH TO THE PRIVILEGE UNDER THE FIFTH AMENDMENT AND TO THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, PETITIONER'S DISBARMENT IS
CONSTITUTIONALLY PERMISSIBLE. 

THE PLURALITY OPINION DOES NOT PAUSE EITHER TO ACKNOWLEDGE THE
PREVIOUS HANDLING OF THESE ISSUES OR TO EXPLAIN WHY THE PRIVILEGE MUST
NOW BE SUPPOSED TO FORBID ALL CONSEQUENCES WHICH MAY RESULT FROM
PRIVILEGED SILENCE.  THIS IS SCARCELY SURPRISING, FOR THE PLURALITY
OPINION WOULD CREATE A NOVEL AND ENTIRELY UNNECESSARY EXTENSION OF THE
PRIVILEGE WHICH WOULD EXCEED THE NEEDS OF THE PRIVILEGE'S PURPOSE AND
SERIOUSLY INHIBIT THE PROTECTION OF OTHER PUBLIC INTERESTS.  THE
PETITIONER WAS NOT DENIED HIS PRIVILEGE AGAINST SELF-INCRIMINATION, NOR
WAS HE PENALIZED FOR ITS USE; HE WAS DENIED HIS AUTHORITY TO PRACTICE
LAW WITHIN THE STATE OF NEW YORK BY REASON OF HIS FAILURE TO SATISFY
VALID OBLIGATIONS IMPOSED BY THE STATE AS A CONDITION OF THAT
AUTHORITY.  THE ONLY HAZARD IN THIS PROCESS TO THE INTEGRITY OF THE
PRIVILEGE IS THE POSSIBILITY THAT IT MIGHT INDUCE INVOLUNTARY
DISCLOSURES OF INCRIMINATING MATERIALS; THE SANCTION PRECISELY
CALCULATED TO ELIMINATE THAT HAZARD IS TO EXCLUDE THE USE BY
PROSECUTING AUTHORITIES OF SUCH MATERIALS AND OF THEIR FRUITS.  THIS
COURT HAS, UPON PROOF OF INVOLUNTARINESS, CONSISTENTLY FORBIDDEN THEIR
USE SINCE BROWN V. MISSISSIPPI, 297 U.S. 278, AND NOW, AS MY BROTHER
WHITE HAS EMPHASIZED, THE PLURALITY HAS INTENSIFIED THIS PROTECTION
STILL FURTHER WITH THE BROAD PROHIBITORY RULE IT HAS ANNOUNCED TODAY IN
GARRITY V. NEW JERSEY, ANTE, P. 493.  IT IS TRUE THAT THIS COURT HAS ON
OCCASION GONE A STEP FURTHER, AND FORBIDDEN THE PRACTICES LIKELY TO
PRODUCE INVOLUNTARY DISCLOSURES, BUT THOSE CASES ARE READILY
DISTINGUISHABLE.  THEY HAVE UNIFORMLY INVOLVED EITHER SITUATIONS IN
WHICH THE ENTIRE PROCESS WAS THOUGHT BOTH TO PRESENT EXCESSIVE RISKS OF
COERCION AND TO BE FOREIGN TO OUR ACCUSATORIAL SYSTEM, AS IN MIRANDA V.
ARIZONA, 384 U.S. 436, OR SITUATIONS IN WHICH THE ONLY POSSIBLE PURPOSE
OF THE PRACTICE WAS THOUGHT TO BE TO PENALIZE THE ACCUSED FOR HIS USE
OF THE CONSTITUTIONAL PRIVILEGE, AS IN GRIFFIN V. CALIFORNIA, 380 U.S.
609.  BOTH SITUATIONS ARE PLAINLY REMOTE FROM THAT IN ISSUE HERE.  NONE
OF THE REASONS THOUGHT TO REQUIRE THE PROHIBITIONS ESTABLISHED IN THOSE
CASES HAVE ANY RELEVANCE IN THE SITUATION NOW BEFORE US; NOTHING IN NEW
YORK'S EFFORTS IN GOOD FAITH TO ASSURE THE INTEGRITY OF ITS JUDICIAL
SYSTEM DESTROYS, INHIBITS, OR EVEN MINIMIZES THE PETITIONER'S
CONSTITUTIONAL PRIVILEGE.  THERE IS THEREFORE NO NEED TO SPECULATE
WHETHER LAWYERS, OR THOSE IN ANY OTHER PROFESSION OR OCCUPATION, HAVE
WAIVED IN SOME UNSPECIFIED FASHION A MEASURE OF THE PROTECTION AFFORDED
BY THE CONSTITUTIONAL PRIVILEGE; IT SUFFICES THAT THE STATE IS
EARNESTLY CONCERNED WITH AN URGENT PUBLIC INTEREST, AND THAT IT HAS
SELECTED METHODS FOR THE PURSUIT OF THAT INTEREST WHICH DO NOT PREVENT
ATTAINMENT OF THE PRIVILEGE'S PURPOSES.   I THINK IT MANIFEST THAT THIS
COURT IS REQUIRED NEITHER BY THE LOGIC OF THE PRIVILEGE AGAINST SELF
INCRIMINATION NOR BY PREVIOUS AUTHORITY TO INVALIDATE THESE STATE
RULES, AND THUS TO OVERTURN THE DISBARMENT OF THE PETITIONER.  TODAY'S
APPLICATION OF THE PRIVILEGE SERVES ONLY TO HAMPER APPROPRIATE
PROTECTION OF OTHER FUNDAMENTAL PUBLIC VALUES.  (FN5) 

IN VIEW OF THESE CONCLUSIONS, I FIND IT UNNECESSARY TO REACH THE
ALTERNATIVE BASIS OF THE COURT OF APPEALS' DECISION, THE "REQUIRED
RECORDS DOCTRINE."  SEE SHAPIRO V. UNITED STATES, 335 U.S. 1. 

I WOULD AFFIRM THE JUDGMENT OF DISBARMENT. 

FN1  NO CLAIM HAS BEEN MADE EITHER HERE OR IN THE STATE COURTS THAT
THE UNDERLYING FACTS REPRESENTING PETITIONER'S ALLEGED CONDUCT WERE NOT
SUCH AS TO ENTITLE HIM TO CLAIM THE PRIVILEGE AGAINST SELF
INCRIMINATION.  WE THEREFORE DEAL WITH THE CASE ON THE PREMISE THAT HIS
CLAIM OF PRIVILEGE WAS PROPERLY ASSERTED. 

FN2  THE HISTORY OF THESE EFFORTS IS OUTLINED IN COHEN, A HISTORY OF
THE ENGLISH BAR AND ATTORNATUS TO 1450, 277 ET SEQ., 2 HOLDSWORTH, A
HISTORY OF ENGLISH LAW 317, 504 ET SEQ.; 6 ID., 431 ET SEQ. 

FN3  THESE EFFORTS ARE TRACED IN WARREN, HISTORY OF THE AMERICAN BAR,
PASSIM. 

FN4  EVIDENCES OF THIS PRINCIPLE MAY BE FOUND IN THE OPINIONS OF THIS
COURT.  SEE, E.G., EX PARTE BRADLEY, 7 WALL.  364; POWELL V. ALABAMA,
287 U.S. 45; GIDEON V. WAINWRIGHT, 372 U.S. 335. 

FN5  IT SHOULD BE NOTED THAT THE PRINCIPLE THAT A LICENSE OR STATUS
MAY BE DENIED TO ONE WHO REFUSES, UNDER THE SHELTER OF THE
CONSTITUTIONAL PRIVILEGE, TO DISCLOSE INFORMATION PERTINENT TO THAT
STATUS OR PRIVILEGE, HAS BEEN ADOPTED IN A VARIETY OF SITUATIONS BY
STATUTE.  SEE, E.G., 12 U.S.C. SEC. 481; 47 U.S.C. SECS. 308(B),
312(A)(4); 5 U.S.C. SEC. 2283. 

MR. JUSTICE WHITE, DISSENTING.* 

*THIS OPINION APPLIES ALSO TO NO. 13, GARRITY V. NEW JERSEY, ANTE, P.
493. 

IN NO. 13, GARRITY V. NEW JERSEY, THE COURT APPARENTLY HOLDS THAT IN
EVERY IMAGINABLE CIRCUMSTANCE THE THREAT OF DISCHARGE ISSUED BY ONE
PUBLIC OFFICER TO ANOTHER WILL BE IMPERMISSIBLE COMPULSION SUFFICIENT
TO RENDER SUBSEQUENT ANSWERS TO QUESTIONS INADMISSIBLE IN A CRIMINAL
PROCEEDING.  I WOULD AGREE THAT IN SOME, IF NOT IN MOST, CASES THIS
WOULD BE THE PROPER RESULT.  BUT THE CIRCUMSTANCES OF SUCH
CONFRONTATIONS ARE OF INFINITE VARIETY.  RATHER THAN THE COURT'S
INFLEXIBLE, PER SE RULE, THE MATTER SHOULD BE DECIDED ON THE FACTS OF
EACH PARTICULAR CASE.  IN THE SITUATION BEFORE US NOW, I AGREE WITH MY
BROTHER HARLAN THAT THE FINDINGS OF THE TWO COURTS BELOW SHOULD NOT BE
OVERTURNED. 

HOWEVER THAT MAY BE, WITH GARRITY ON THE BOOKS, THE COURT COMPOUNDS
ITS ERROR IN SPEVACK V. KLEIN, NO. 62.  THE PETITIONER IN THAT CASE
REFUSED TO TESTIFY AND TO PRODUCE ANY OF HIS RECORDS.  HE INCRIMINATED
HIMSELF IN NO WAY WHATSOEVER.  THE COURT NEVERTHELESS HOLDS THAT HE MAY
NOT BE DISBARRED FOR HIS REFUSAL TO DO SO.  SUCH A RULE WOULD SEEM
JUSTIFIABLE ONLY ON THE GROUND THAT IT IS AN ESSENTIAL MEASURE TO
PROTECT AGAINST SELF-INCRIMINATION - TO PREVENT WHAT MAY WELL BE A
SUCCESSFUL ATTEMPT TO ELICIT INCRIMINATING ADMISSIONS.  BUT GARRITY
EXCLUDES SUCH STATEMENTS, AND THEIR FRUITS, FROM A CRIMINAL PROCEEDING
AND THEREFORE FRUSTRATES IN ADVANCE ANY EFFORT TO COMPEL ADMISSIONS
WHICH COULD BE USED TO OBTAIN A CRIMINAL CONVICTION.  I THEREFORE SEE
LITTLE LEGAL OR PRACTICAL BASIS, IN TERMS OF THE PRIVILEGE AGAINST SELF
INCRIMINATION PROTECTED BY THE FIFTH AMENDMENT, FOR PREVENTING THE
DISCHARGE OF A PUBLIC EMPLOYEE OR THE DISBARMENT OF A LAWYER WHO
REFUSES TO TALK ABOUT THE PERFORMANCE OF HIS PUBLIC DUTY.* 

*THE OPINION OF MY BROTHER DOUGLAS PROFESSES NOT TO RESOLVE WHETHER
POLICEMEN MAY BE DISCHARGED FOR REFUSING TO COOPERATE WITH AN
INVESTIGATION INTO ALLEGED MISCONDUCT.  HOWEVER, THE REASONING USED TO
REACH HIS RESULT IN THE CASE OF LAWYERS WOULD SEEMINGLY APPLY WITH
EQUAL PERSUASIVENESS IN THE CASE OF PUBLIC EMPLOYEES. 

IN MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, THE COURT HELD THAT "A
STATE WITNESS MAY NOT BE COMPELLED TO GIVE TESTIMONY WHICH MAY BE
INCRIMINATING UNDER FEDERAL LAW UNLESS THE COMPELLED TESTIMONY AND ITS
FRUITS CANNOT BE USED IN ANY MANNER BY FEDERAL OFFICIALS IN CONNECTION
WITH A CRIMINAL PROSECUTION AGAINST HIM."  378 U.S., AT 79.  TO
IMPLEMENT THIS HOLDING THE COURT FURTHER RULED THAT THE FEDERAL
GOVERNMENT WOULD BE CONSTITUTIONALLY PROHIBITED FROM MAKING ANY SUCH
USE OF COMPELLED TESTIMONY AND ITS FRUITS.  THIS HOLDING WAS BASED ON
THE DESIRABILITY OF ACCOMMODATING THE INTERESTS OF THE STATE AND THE
FEDERAL GOVERNMENT IN INVESTIGATING AND PROSECUTING CRIME. 

A SIMILAR ACCOMMODATION SHOULD BE MADE HERE, ALTHOUGH THE MULTIPLE
INTERESTS INVOLVED ARE THOSE OF THE STATE ALONE.  THE MAJORITY DOES NOT
DENY THAT THE STATE AND ITS CITIZENS HAVE A LEGITIMATE INTEREST IN
RIDDING THEMSELVES OF FAITHLESS OFFICERS.  ADMITTEDLY, HOWEVER, IN
ATTEMPTING TO DETERMINE THE PRESENT QUALIFICATIONS OF AN EMPLOYEE BY
CONSULTATION WITH THE EMPLOYEE HIMSELF, THE STATE MAY ASK FOR
INFORMATION WHICH, IF GIVEN, WOULD NOT ONLY RESULT IN A DISCHARGE BUT
WOULD BE VERY USEFUL EVIDENCE IN A CRIMINAL PROCEEDING.  GARRITY, IN MY
VIEW, PROTECTS AGAINST THE LATTER POSSIBILITY.  CONSEQUENTLY, I SEE NO
REASON FOR REFUSING TO PERMIT THE STATE TO PURSUE ITS OTHER VALID
INTEREST AND TO DISCHARGE AN EMPLOYEE WHO REFUSES TO COOPERATE IN THE
STATE'S EFFORT TO DETERMINE HIS QUALIFICATIONS FOR CONTINUED
EMPLOYMENT. 

IN MY VIEW, SPEVACK WAS PROPERLY DISBARRED.  WITH ALL DUE RESPECT, I
THEREFORE DISSENT. 
..END :



















MCLEOD V. GENERAL ELECTRIC 385 U.S. 533 


NO. 645.  DECIDED JANUARY 16, 1967.* - CERTIORARI GRANTED; 366 F.2D 847,
SET ASIDE AND REMANDED. 

*TOGETHER WITH NO. 774, INTERNATIONAL UNION OF ELECTRICAL, RADIO &
MACHINE WORKERS, AFL-CIO V. GENERAL ELECTRIC CO. ET AL., ALSO ON
PETITION FOR WRIT OF CERTIORARI TO THE SAME COURT. 


THE UNION (IUE) FILED AN UNFAIR LABOR PRACTICE CHARGE AGAINST
RESPONDENT COMPANY (GE) UNDER SECS. 8(A)(1) AND (5) OF THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED, BECAUSE OF GE'S REFUSAL TO BARGAIN
COLLECTIVELY OVER A NEW CONTRACT, SUCH REFUSAL HAVING BEEN BASED UPON
IUE'S INCLUSION AMONG THE BARGAINING REPRESENTATIVES OF PERSONS FROM
OTHER LABOR ORGANIZATIONS.  THE NLRB'S REGIONAL DIRECTOR ISSUED A
COMPLAINT AND NOTICE OF HEARING AND SECURED FROM THE DISTRICT COURT A
TEMPORARY INJUNCTION UNDER SEC. 10(J) RESTRAINING GE FROM DECLINING TO
MEET WITH IUE'S DESIGNATED REPRESENTATIVES.  THE COURT OF APPEALS,
APPLYING A DIFFERENT STANDARD UNDER SEC. 10(J) FROM THE ONE USED BY THE
DISTRICT COURT, REVERSED.  THEREAFTER IUE AND GE ENTERED INTO A THREE
YEAR AGREEMENT TO REPLACE THE EXPIRED CONTRACT.  HELD:  THE COURT OF
APPEALS' JUDGMENT IS SET ASIDE SO THAT THE DISTRICT COURT CAN DETERMINE
THE EFFECT OF THE NEW CONTRACT UPON THE APPROPRIATENESS OF INJUNCTIVE
RELIEF, THE PROP STANDARD UNDER SEC. 10(J) BEING IMMATERIAL IF RELIEF
THEREUNDER IS NOW IMPROPER WHICHEVER STANDARD IS APPLIED. 

MCLEOD, REGIONAL DIRECTOR, NATIONAL LABOR RELATIONS BOARD V. GENERAL
ELECTRIC CO. ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITIONS FOR CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT
OF APPEALS FOR THE SECOND CIRCUIT IS SET ASIDE WITH DIRECTION TO THAT
COURT TO ENTER A NEW JUDGMENT CONSISTENT WITH THIS OPINION. 

THE REGIONAL DIRECTOR OF THE SECOND REGION OF THE NATIONAL LABOR
RELATIONS BOARD ISSUED A COMPLAINT AND NOTICE OF HEARING UPON A CHARGE
FILED BY THE INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE
WORKERS, AFL-CIO (IUE).  THE CHARGE ALLEGED THAT GENERAL ELECTRIC
COMPANY VIOLATED SECS. 8(A)(1) AND (5) OF THE NATIONAL LABOR RELATIONS
ACT, AS AMENDED, 61 STAT. 140, 29 U.S.C. SECS. 158(A)(1) AND (5), IN
REFUSING TO BARGAIN UPON THE RENEWAL OF AN EXPIRING COLLECTIVE
BARGAINING AGREEMENT BECAUSE OF "THE INCLUSION AMONG THE PERSONS
DESIGNATED BY THE UNION TO REPRESENT IT  ... OF PERSONS WHO ALSO
REPRESENTED OTHER LABOR ORGANIZATIONS WHICH ENGAGED IN COLLECTIVE
BARGAINING WITH" THE COMPANY.  PURSUANT TO SEC. 10(J) OF THE ACT THE
REGIONAL DIRECTOR ALSO OBTAINED A TEMPORARY INJUNCTION IN THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK RESTRAINING THE COMPANY
FROM "FAILING OR REFUSING TO MEET, CONFER AND BARGAIN COLLECTIVELY IN
GOOD FAITH WITH  ... (IUE), BY DECLINING TO MEET WITH THE SELECTED
REPRESENTATIVES OF  ...  (IUE) BECAUSE OF THE PRESENCE OF ANY
REPRESENTATIVES OF OTHER UNIONS WHOM IUE AND ITS CONSTITUENT LOCALS
HAVE INVITED TO ATTEND FOR THE PURPOSE OF PARTICIPATING IN THE
DISCUSSION AND ADVISING OR CONSULTING WITH IUE AND ITS CONSTITUENT
LOCALS."  THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED.  366
F.2D 847.  MR. JUSTICE HARLAN STAYED THE COURT OF APPEALS' JUDGMENT
PENDING ACTION ON THE PETITION FOR WRIT OF CERTIORARI FILED IN NO.
645. 

THE DISTRICT COURT AND THE COURT OF APPEALS DIFFERED REGARDING THE
PROPER STANDARD WHICH SHOULD BE DETERMINATIVE OF THE RIGHT TO
INJUNCTIVE RELIEF UNDER SEC. 10(J).  THE DISTRICT COURT APPLIED A DUAL
TEST:  (1) WHETHER "THE IMPACT UPON THE PUBLIC INTEREST IS GRAVE ENOUGH
TO JUSTIFY SWIFTER CORRECTIVE ACTION THAN THE NORMAL PROCESS OF BOARD
ADJUDICATION AND COURT ENFORCEMENT," 257 F. SUPP. 690, 708, AND (2)
"WHETHER THE BOARD HAS 'REASONABLE CAUSE TO BELIEVE' THAT THE ACCUSED
PARTY HAS BEEN GUILTY OF UNFAIR LABOR PRACTICES."  257 F. SUPP., AT
709.  THE COURT OF APPEALS ON THE OTHER HAND CONSIDERED THE PROPER
STANDARD TO BE WHETHER THE BOARD HAD "DEMONSTRATED THAT AN INJUNCTION
IS NECESSARY TO PRESERVE THE STATUS QUO OR TO PREVENT ANY IRREPARABLE
HARM."  366 F.2D, AT 850. 

WE DO NOT THINK IT APPROPRIATE HOWEVER TO DECIDE AT THIS TIME THE
PROPER CONSTRUCTION OF SEC. 10(J).  FOR ON OCTOBER 14, 1966, AFTER THE
DECISION OF THE COURT OF APPEALS, THE COMPANY AND IUE AGREED UPON A
THREE-YEAR COLLECTIVE BARGAINING AGREEMENT TO REPLACE THE EXPIRED
CONTRACT.  WE THINK THAT THE DISTRICT COURT SHOULD DETERMINE IN THE
FIRST INSTANCE THE EFFECT OF THIS SUPERVENING EVENT UPON THE
APPROPRIATENESS OF INJUNCTIVE RELIEF.  THE CONTROVERSY OVER THE PROPER
STANDARD FOR INJUNCTIVE RELIEF IS IMMATERIAL IF SUCH RELIEF IS NOW
IMPROPER WHICHEVER STANDARD IS APPLIED.  WE THEREFORE DISSOLVE THE STAY
GRANTED BY MR. JUSTICE HARLAN AND SET ASIDE THE JUDGMENT OF THE COURT
OF APPEALS WITH DIRECTION TO ENTER A NEW JUDGMENT SETTING ASIDE THE
ORDER OF THE DISTRICT COURT AND REMANDING TO THAT COURT FOR SUCH
FURTHER PROCEEDINGS AS MAY BE APPROPRIATE IN LIGHT OF THE SUPERVENING
EVENT.  SEE CALHOUN V. LATIMER, 377 U.S. 263; SCRANTON V. DREW, 379
U.S. 40.  IT IS SO ORDERED. 
..END :





ALEXANDER V. NEW JERSEY 385 U.S. 536 


NO. 892, MISC.  DECIDED JANUARY 16, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


ALEXANDER V. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY,
DEPARTMENT OF LABOR AND INDUSTRY OF NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISD]CTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















MCCONAGHY V. MCCONAGHY 385 U.S. 536 


NO. 929, MISC.  DECIDED JANUARY 16, 1967.  - 239 CAL. APP. 2D 601, 48
CAL. RPTR.  845, APPEAL DISMISSED AND CERTIORARI DENIED. 


MCCONAGHY V. MCCONAGHY. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















SHORT V. NESS 385 U.S. 537 


NO. 779.  DECIDED JANUARY 16, 1967.  - 263 F. SUPP. 586, AFFIRMED. 


SHORT ET AL. V. NESS PRODUCE CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 
..END :














LASSEN V. ARIZONA 385 U.S. 458 


NO. 84.  ARGUED NOVEMBER 16, 1966.  - DECIDED JANUARY 10, 1967.  - 99
ARIZ. 161, 407 P.2D 747, REVERSED AND REMANDED. 


THE STATE OF ARIZONA ON RELATION OF ITS HIGHWAY DEPARTMENT SUED IN THE
ARIZONA SUPREME COURT TO PROHIBIT THE STATE LAND COMMISSIONER (WHO IS
ESSENTIALLY THE TRUSTEE OF LANDS GRANTED TO THE STATE FOR SPECIFIED
PUBLIC PURPOSES BY THE UNITED STATES PURSUANT TO THE NEW MEXICO-ARIZONA
ENABLING ACT) FROM ENFORCING RULES GOVERNING THE ACQUISITION OF RIGHTS
OF WAY AND MATERIAL SITES IN THE TRUST LANDS.  THE RULES PROVIDED THAT
RIGHTS OF WAY AND MATERIAL SITES COULD BE GRANTED FOR AN INDEFINITE
PERIOD AFTER FULL PAYMENT OF THE APPRAISED VALUE.  THE ENABLING ACT, BY
SUCH PROVISIONS AS THOSE FOR PUBLIC NOTICE AND PUBLIC SALE, RESTRICTS
THE MANNER OF DISPOSITION OF TRUST LANDS AND PROVIDES THAT NO LANDS MAY
BE SOLD FOR LESS THAN THEIR APPRAISED VALUE.  THE ACT DOES NOT DIRECTLY
REFER TO THE USE BY THE STATE ITSELF OF TRUST LANDS FOR PURPOSES NOT
DESIGNATED IN THE GRANT.  THE STATE SUPREME COURT ORDERED THE
COMMISSIONER TO GRANT THE MATERIAL SITES AND RIGHTS OF WAY WITHOUT
COMPENSATION, HOLDING THAT IT MAY BE CONCLUSIVELY PRESUMED THAT
HIGHWAYS ACROSS TRUST LANDS ALWAYS ENHANCE THE VALUE OF REMAINING TRUST
LANDS IN AMOUNTS AT LEAST EQUAL TO THE VALUE OF THE AREAS TAKEN. 
HELD: 

1.  CONSISTENT WITH THE ESSENTIAL PURPOSES OF THE ENABLING ACT, THE
RESTRICTIONS ON THE MANNER OF DISPOSITION OF TRUST LANDS ARE NOT
APPLICABLE TO ACQUISITIONS BY THE STATE FOR ITS HIGHWAY PROGRAM.  PP.
461-465. 

2.  THE STATE MUST COMPENSATE THE TRUST IN MONEY FOR THE FULL
APPRAISED VALUE OF ANY MATERIAL SITES OR RIGHTS OF WAY WHICH IT OBTAINS
ON OR OVER TRUST LANDS, NOT DIMINISHED BY THE AMOUNT OF ANY ENHANCEMENT
IN VALUE OF THE REMAINING TRUST LANDS.  PP. 465-470. 

LASSEN, COMMISSIONER, STATE LAND DEPARTMENT V. ARIZONA EX REL. ARIZONA
HIGHWAY DEPARTMENT. 

CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT AS AN ORIGINAL PROCEEDING IN THE SUPREME
COURT OF ARIZONA BY THE STATE ON THE RELATION OF ITS HIGHWAY
DEPARTMENT.  THE DEPARTMENT SEEKS TO PROHIBIT THE APPLICATION BY THE
STATE LAND COMMISSIONER OF RULES GOVERNING THE ACQUISITION OF RIGHTS OF
WAY AND MATERIAL SITES IN FEDERALLY DONATED LANDS HELD IN TRUST BY THE
STATE.  (FN1)  THE COMMISSIONER'S RULES PROVIDE IN PERTINENT PART THAT
"RIGHTS OF WAY AND MATERIAL SITES MAY BE GRANTED  ...  FOR AN
INDEFINITE PERIOD ...  AFTER FULL PAYMENT OF THE APPRAISED VALUE  ...
HAS BEEN MADE TO THE STATE LAND DEPARTMENT.  THE APPRAISED VALUE  ...
SHALL BE DETERMINED IN ACCORDANCE WITH THE PRINCIPLES ESTABLISHED IN
A.R.S. 12-1122."  RULE 12.  THE SUPREME COURT OF ARIZONA HELD THAT IT
MAY BE CONCLUSIVELY PRESUMED THAT HIGHWAYS CONSTRUCTED ACROSS TRUST
LANDS ALWAYS ENHANCE THE VALUE OF THE REMAINING TRUST LANDS IN AMOUNTS
AT LEAST EQUAL TO THE VALUE OF THE AREAS TAKEN.  IT THEREFORE ORDERED
THE COMMISSIONER TO GRANT WITHOUT ACTUAL COMPENSATION MATERIAL SITES
AND RIGHTS OF WAY UPON TRUST LANDS.  99 ARIZ. 161, 407 P.2D 747. 

THE LANDS AT ISSUE HERE ARE AMONG SOME 10,790,000 ACRES GRANTED BY
THE UNITED STATES TO ARIZONA IN TRUST FOR THE USE AND BENEFIT OF
DESIGNATED PUBLIC ACTIVITIES WITHIN THE STATE.  (FN2)  THE FEDERAL
GOVERNMENT SINCE THE NORTHWEST ORDINANCE OF 1787 HAS MADE SUCH GRANTS
TO STATES NEWLY ADMITTED TO THE UNION.  (FN3)  ALTHOUGH THE TERMS OF
THESE GRANTS DIFFER, AT LEAST THE MOST RECENT COMMONLY MAKE CLEAR THAT
THE UNITED STATES HAS A CONTINUING INTEREST IN THE ADMINISTRATION OF
BOTH THE LANDS AND THE FUNDS WHICH DERIVE FROM THEM.  THE GRANT
INVOLVED HERE THUS EXPRESSLY REQUIRES THE ATTORNEY GENERAL OF THE
UNITED STATES TO MAINTAIN WHATEVER PROCEEDINGS MAY BE NECESSARY TO
ENFORCE ITS TERMS.   (FN4)  WE BROUGHT THIS CASE HERE BECAUSE OF THE
IMPORTANCE OF THE ISSUES PRESENTED BOTH TO THE UNITED STATES AND TO THE
STATES WHICH HAVE RECEIVED SUCH LANDS.  (FN5)  384 U.S. 926. 

THE ISSUES HERE STEM CHIEFLY FROM AMBIGUITIES IN THE GRANT ITSELF. 
THE TERMS UNDER WHICH THE UNITED STATES PROVIDED THESE LANDS WERE
INCLUDED IN THE NEW MEXICO-ARIZONA ENABLING ACT.  36 STAT. 557.  THE
ACT DESCRIBES WITH PARTICULARITY THE DISPOSITION ARIZONA MAY MAKE OF
THE LANDS AND OF THE FUNDS DERIVED FROM THEM, BUT IT DOES NOT DIRECTLY
REFER TO THE CONDITIONS OR CONSEQUENCES OF THE USE BY THE STATE ITSELF
OF THE TRUST LANDS FOR PURPOSES NOT DESIGNATED IN THE GRANT.  OF THE
ISSUES WHICH MAY ARISE FROM THE ACT'S SILENCE, WE NEED NOW REACH ONLY
TWO:  FIRST, WHETHER ARIZONA IS PERMITTED TO OBTAIN TRUST LANDS FOR
SUCH USES WITHOUT FIRST SATISFYING THE ACT'S RESTRICTIONS ON
DISPOSITION OF THE LAND; AND SECOND, WHAT STANDARD OF COMPENSATION
ARIZONA MUST EMPLOY TO RECOMPENSE THE TRUST FOR THE LAND IT USES.  BOTH
ISSUES REQUIRE CONSIDERATION OF THE ACT'S LANGUAGE AND HISTORY. 

                        I. 

WE TURN FIRST TO THE QUESTION OF THE METHOD BY WHICH ARIZONA MAY
OBTAIN TRUST LANDS FOR PURPOSES NOT INCLUDED IN THE GRANT.  THE
CONSTRAINTS IMPOSED BY THE ACT UPON THE METHODS BY WHICH TRUST LANDS
MAY BE TRANSFERRED ARE FEW AND SIMPLE.  SECTION 28, WHICH IS REPRODUCED
IN THE APPENDIX TO THIS OPINION, REQUIRES, WITH EXCEPTIONS INAPPLICABLE
HERE, THAT LANDS BE SOLD OR LEASED ONLY TO "THE HIGHEST AND BEST BIDDER
AT A PUBLIC AUCTION TO BE HELD AT THE COUNTY SEAT OF THE COUNTY WHEREIN
THE LANDS  ...  SHALL LIE  ...  ."  THE SECTION PRESCRIBES THE TERMS,
FORM AND FREQUENCY OF THE NOTICE WHICH MUST BE GIVEN OF THE AUCTION. 
IT REQUIRES THAT NO LANDS BE SOLD FOR A PRICE LESS THAN THEIR APPRAISED
VALUE.  THE ACT IMPOSES TWO SANCTIONS UPON TRANSACTIONS WHICH FAIL TO
SATISFY ITS REQUIREMENTS.  FIRST, SEC 28 PROVIDES BROADLY THAT TRUST
LANDS MUST BE "DISPOSED OF IN WHOLE OR IN PART ONLY IN MANNER AS HEREIN
PROVIDED  ...  ."  IT ADDS THAT "DISPOSITION OF ANY OF SAID LANDS  ...
IN ANY MANNER CONTRARY TO THE PROVISIONS OF THIS ACT, SHALL BE DEEMED A
BREACH OF TRUST."  FINALLY, IT PROVIDES THAT "EVERY SALE, LEASE,
CONVEYANCE, OR CONTRACT OF OR CONCERNING ANY OF THE LANDS HEREBY
GRANTED OR CONFIRMED  ...  NOT MADE IN SUBSTANTIAL CONFORMITY WITH THE
PROVISIONS OF THIS ACT SHALL BE NULL AND VOID  ...  ." 

THE PARTIES URGE, AND THE STATE COURT ASSUMED, THAT ARIZONA NEED NOT
FOLLOW THESE PROCEDURES WHEN IT SEEKS MATERIAL SITES AND RIGHTS OF WAY
UPON TRUST LANDS.  (FN6)  THE COMMISSIONER'S RULES THUS DO NOT REQUIRE
AN AUCTION OR OTHER PUBLIC SALE.  THIS VIEW HAS BEEN TAKEN BY OTHER
STATE COURTS CONSTRUING SIMILAR GRANTS.  ROSS V. TRUSTEES OF UNIVERSITY
OF WYOMING, 30 WYO. 433; 222 P. 3, STATE V. WALKER, 61 N.M. 374, 301
P.2D 317.  WE HAVE CONCLUDED, FOR THE REASONS WHICH FOLLOW, THAT THE
RESTRICTIONS OF THE ACT ARE INAPPLICABLE TO ACQUISITIONS BY THE STATE
FOR ITS HIGHWAY PROGRAM. 

THE ACT'S SILENCE OBLIGES US TO EXAMINE ITS PURPOSES, AS EVIDENCED BY
ITS TERMS AND ITS LEGISLATIVE HISTORY, TO DETERMINE WHETHER THESE
RESTRICTIONS SHOULD BE IMPOSED HERE.  THE GRANT WAS PLAINLY EXPECTED TO
PRODUCE A FUND, ACCUMULATED BY SALE AND USE OF THE TRUST LANDS, WITH
WHICH THE STATE COULD SUPPORT THE PUBLIC INSTITUTIONS DESIGNATED BY THE
ACT.  IT WAS NOT SUPPOSED THAT ARIZONA WOULD RETAIN ALL THE LANDS GIVEN
IT FOR ACTUAL USE BY THE BENEFICIARIES; THE LANDS WERE OBVIOUSLY TOO
EXTENSIVE AND TOO OFTEN INAPPROPRIATE FOR THE SELECTED PURPOSES. 
CONGRESS COULD SCARCELY HAVE EXPECTED, FOR EXAMPLE, THAT MANY OF THE
8,000,000 ACRES OF ITS GRANT "FOR THE SUPPORT OF THE COMMON SCHOOLS,"
ALL CHOSEN WITHOUT REGARD TO TOPOGRAPHY OR SCHOOL NEEDS, WOULD BE
EMPLOYED AS BUILDING SITES.  (FN7)  IT INTENDED INSTEAD THAT ARIZONA
WOULD USE THE GENERAL POWERS OF SALE AND LEASE GIVEN IT BY THE ACT TO
ACCUMULATE FUNDS WITH WHICH IT COULD SUPPORT ITS SCHOOLS. 

THE CENTRAL PROBLEM WHICH CONFRONTED THE ACT'S DRAFTSMEN WAS
THEREFORE TO DEVISE CONSTRAINTS WHICH WOULD ASSURE THAT THE TRUST
RECEIVED IN FULL FAIR COMPENSATION FOR TRUST LANDS.  THE METHOD OF
TRANSFER AND THE TRANSFEREE WERE MATERIAL ONLY SO FAR AS NECESSARY TO
ASSURE THAT THE TRUST SOUGHT AND OBTAINED APPROPRIATE COMPENSATION. 
THIS IS CONFIRMED BY THE LEGISLATIVE HISTORY OF THE ENABLING ACT.  ALL
THE RESTRICTIONS ON THE USE AND DISPOSITION OF THE TRUST LANDS,
INCLUDING THOSE ON THE POWERS OF SALE AND LEASE, WERE FIRST INSERTED BY
THE SENATE COMMITTEE ON THE TERRITORIES.  (FN8) SENATOR BEVERIDGE, THE
COMMITTEE'S CHAIRMAN, MADE CLEAR ON THE FLOOR OF THE SENATE THAT THE
COMMITTEE'S DETERMINATION TO REQUIRE THE RESTRICTIONS SPRANG FROM ITS
FEAR THAT THE TRUST WOULD BE EXPLOITED FOR PRIVATE ADVANTAGE.  HE
EMPHASIZED THAT THE COMMITTEE WAS INFLUENCED CHIEFLY BY THE REPEATED
VIOLATIONS OF A SIMILAR GRANT MADE TO NEW MEXICO IN 1898.  (FN9)  THE
VIOLATIONS HAD THERE ALLEGEDLY CONSISTED OF PRIVATE SALES AT
UNREASONABLY LOW PRICES, AND THE COMMITTEE EVIDENTLY HOPED TO PREVENT
SUCH DEPREDATIONS HERE BY REQUIRING PUBLIC NOTICE AND SALE.  (FN10)
THE RESTRICTIONS WERE THUS INTENDED TO GUARANTEE, BY PREVENTING
PARTICULAR ABUSES THROUGH THE PROHIBITION OF SPECIFIC PRACTICES, THAT
THE TRUST RECEIVED APPROPRIATE COMPENSATION FOR TRUST LANDS.  WE SEE NO
NEED TO READ THE ACT TO IMPOSE THESE RESTRICTIONS ON TRANSFERS IN WHICH
THE ABUSES THEY WERE INTENDED TO PREVENT ARE NOT LIKELY TO OCCUR, AND
IN WHICH THE TRUST MAY IN ANOTHER AND MORE EFFECTIVE FASHION BE ASSURED
FULL COMPENSATION. 

FURTHER, WE SHOULD NOT FAIL TO RECOGNIZE THAT, WERE WE TO REQUIRE
ARIZONA TO FOLLOW PRECISELY THESE PROCEDURES, WE WOULD SANCTION AN
EMPTY FORMALITY.  THERE WOULD NOT OFTEN BE OTHERS TO BID FOR THE
MATERIAL SITES AND RIGHTS OF WAY WHICH THE STATE MIGHT SEEK.  MORE
IMPORTANT, EVEN IF SUCH BIDDERS APPEARED AND PROVED SUCCESSFUL, NOTHING
IN THE GRANT WOULD PREVENT ARIZONA FROM THEREAFTER CONDEMNING THE LAND
WHICH IT HAD FAILED TO PURCHASE; THE ANTICIPATION OF CONDEMNATION WOULD
LEAVE THE AUCTION WITHOUT ANY REAL SIGNIFICANCE.  WE CANNOT SEE THAT
THE TRUST WOULD MATERIALLY BENEFIT FROM THIS CIRCUITY. 

WE CONCLUDE THAT IT IS CONSONANT WITH THE ACT'S ESSENTIAL PURPOSES TO
EXCLUDE FROM THE RESTRICTIONS IN QUESTION THE TRANSACTIONS AT ISSUE
HERE.  THE TRUST WILL BE PROTECTED, AND ITS PURPOSES ENTIRELY
SATISFIED, IF THE STATE IS REQUIRED TO PROVIDE FULL COMPENSATION FOR
THE LAND IT USES.  WE HOLD, THEREFORE, THAT ARIZONA NEED NOT OFFER
PUBLIC NOTICE OR CONDUCT A PUBLIC SALE WHEN IT SEEKS TRUST LANDS FOR
ITS HIGHWAY PROGRAM.  THE STATE MAY INSTEAD EMPLOY THE PROCEDURES
ESTABLISHED BY THE COMMISSIONER'S RULES, OR ANY OTHER PROCEDURES
REASONABLY CALCULATED TO ASSURE THE INTEGRITY OF THE TRUST AND TO
PREVENT MISAPPLICATION OF ITS LANDS AND FUNDS. 

II. 

THE SECOND ISSUE HERE IS THE STANDARD OF COMPENSATION WHICH ARIZONA
MUST EMPLOY TO RECOMPENSE THE TRUST FOR THE LAND IT ACQUIRES.  THE LAND
COMMISSIONER'S RULES PROVIDE SIMPLY THAT THE STATE MUST PAY THE
APPRAISED VALUE, AS MEASURED BY THE STATE'S CONDEMNATION STATUTE, OF
THE RIGHT OF WAY OR MATERIAL SITE.  THE HIGHWAY DEPARTMENT URGES, AND
THE ARIZONA SUPREME COURT HELD, THAT NOTHING NEED EVER BE ACTUALLY PAID
SINCE IT MAY BE CONCLUSIVELY PRESUMED THAT ALL HIGHWAYS ENHANCE THE
VALUE OF THE REMAINING TRUST LANDS IN AMOUNTS AT LEAST EQUAL TO THE
VALUE OF THE LANDS WHICH WERE TAKEN.  THE UNITED STATES, AS AMICUS
CURIAE, SUGGESTS THAT THE HIGHWAY DEPARTMENT BE OBLIGED TO PAY THE
LAND'S APPRAISED VALUE, BUT THAT IT BE PERMITTED TO REDUCE THAT SUM BY
THE AMOUNT OF ANY ENHANCEMENT SHOWN IN THE VALUE OF THE REMAINING TRUST
LANDS.  THE RULE URGED BY THE UNITED STATES DIFFERS FROM THAT ADOPTED
BY THE STATE COURT ONLY IN THAT THE UNITED STATES WOULD NOT PERMIT THE
HIGHWAY DEPARTMENT TO PRESUME ENHANCEMENT, BUT WOULD INSTEAD REQUIRE
THAT IT BE ESTABLISHED BY THE DEPARTMENT IN EACH INSTANCE WITH
REASONABLE CERTAINTY AND PRECISION.  UNDER THIS RULE, ENHANCEMENT WOULD
HAVE TO BE INDIVIDUALLY PROVED AND COMPUTED FOR SMALL TRACTS OF LAND
CHECKERED OVER THE ENTIRE STATE. 

WE ARE URGED BY THE UNITED STATES TO DETERMINE ONLY THE VALIDITY OF
THE RULE OF LAW STATED BY THE ARIZONA SUPREME COURT, AND TO DEFER THE
BROADER QUESTION OF WHETHER ENHANCEMENT MAY EVER BE PERMITTED TO
DIMINISH THE ACTUAL COMPENSATION PAYABLE TO THE TRUST.  THE UNITED
STATES EMPHASIZES THAT THE BROADER ISSUE DOES NOT DIRECTLY ARISE UNDER
THE COMMISSIONER'S RULES, SINCE THE ARIZONA CONDEMNATION STATUTE
INCORPORATED BY THOSE RULES DOES NOT PERMIT BENEFITS TO REDUCE THE
COMPENSATION PAYABLE FOR THE CONDEMNED LAND'S FAIR MARKET VALUE. 
(FN11)  WE ARE UNABLE TO TAKE SO NARROW A VIEW.   THE RULE ADOPTED BY
THE STATE COURT CLEARLY STEMMED FROM, AND DEPENDED UPON, THE PREMISE
THAT ENHANCEMENT MAY BE BALANCED AGAINST THE VALUE OF THE TRUST LANDS
TAKEN BY THE STATE.  IF WE SEVERED THE CONCLUSION FROM ITS PREMISE, WE
WOULD HALT SHORT OF A FULL ADJUDICATION OF THE VALIDITY OF THE
COMMISSIONER'S RULES, AND UNNECESSARILY PROLONG THE LITIGATION OF THIS
IMPORTANT QUESTION.  WE HAVE THEREFORE REACHED THE BROADER ISSUE, AND
HAVE CONCLUDED THAT THE TERMS AND PURPOSES OF THE GRANT DO NOT PERMIT
ARIZONA TO DIMINISH THE ACTUAL COMPENSATION, MEANING THEREBY MONETARY
COMPENSATION, PAYABLE TO THE TRUST BY THE AMOUNT OF ANY ENHANCEMENT IN
THE VALUE OF THE REMAINING TRUST LANDS. 

THE ENABLING ACT UNEQUIVOCALLY DEMANDS BOTH THAT THE TRUST RECEIVE
THE FULL VALUE OF ANY LANDS TRANSFERRED FROM IT AND THAT ANY FUNDS
RECEIVED BE EMPLOYED ONLY FOR THE PURPOSES FOR WHICH THE LAND WAS
GIVEN.  FIRST, IT REQUIRES THAT BEFORE TRUST LANDS OR THEIR PRODUCTS
ARE OFFERED FOR SALE THEY MUST BE "APPRAISED AT THEIR TRUE VALUE," AND
THAT "NO SALE OR OTHER DISPOSAL  ...  SHALL BE MADE FOR A CONSIDERATION
LESS THAN THE VALUE SO ASCERTAINED  ...  ."  (FN12)  THE ACT ORIGINALLY
PROVIDED IN ADDITION THAT TRUST LANDS SHOULD NOT BE SOLD FOR A PRICE
LESS THAN A STATUTORY MINIMUM.  (FN13) SECOND, IT IMPOSES A SERIES OF
CAREFUL RESTRICTIONS UPON THE USE OF TRUST FUNDS.  AS THIS COURT HAS
NOTED, THE ACT CONTAINS "A SPECIFIC ENUMERATION OF THE PURPOSES FOR
WHICH THE LANDS WERE GRANTED AND THE ENUMERATION IS NECESSARILY
EXCLUSIVE OF ANY OTHER PURPOSE."  ERVIEN V. UNITED STATES, 251 U.S. 41,
47.  THE ACT THUS SPECIFICALLY FORBIDS THE USE OF "MONEY OR THING OF
VALUE DIRECTLY OR INDIRECTLY DERIVED"  (FN14)  FROM TRUST LANDS FOR ANY
PURPOSES OTHER THAN THOSE FOR WHICH THAT PARCEL OF LAND WAS GRANTED. 
IT REQUIRES THE CREATION OF SEPARATE TRUST ACCOUNTS FOR EACH OF THE
DESIGNATED BENEFICIARIES, PROHIBITS THE TRANSFER OF FUNDS AMONG THE
ACCOUNTS, AND DIRECTS WITH GREAT PRECISION THEIR ADMINISTRATION. 
"WORDS MORE CLEARLY DESIGNED  ...  TO CREATE DEFINITE AND SPECIFIC
TRUSTS AND TO MAKE THEM IN ALL RESPECTS SEPARATE AND INDEPENDENT OF
EACH OTHER COULD HARDLY HAVE BEEN CHOSEN."  UNITED STATES V. ERVIEN,
246 F. 277, 279.  ALL THESE RESTRICTIONS IN COMBINATION INDICATE
CONGRESS' CONCERN BOTH THAT THE GRANTS PROVIDE THE MOST SUBSTANTIAL
SUPPORT POSSIBLE TO THE BENEFICIARIES AND THAT ONLY THOSE BENEFICIARIES
PROFIT FROM THE TRUST.    THIS IS CONFIRMED BY THE BACKGROUND AND
LEGISLATIVE HISTORY OF THE ENABLING ACT.  THE RESTRICTIONS PLACED UPON
LAND GRANTS TO THE STATES BECAME STEADILY MORE RIGID AND SPECIFIC IN
THE 50 YEARS PRIOR TO THIS ACT, AS CONGRESS SOUGHT TO REQUIRE PRUDENT
MANAGEMENT AND THEREBY TO PRESERVE THE USEFULNESS OF THE GRANTS FOR
THEIR INTENDED PURPOSES.  (FN15)  THE SENATE COMMITTEE ON THE
TERRITORIES, WITH THE ASSISTANCE OF THE DEPARTMENT OF JUSTICE,  (FN16)
ADOPTED FOR THE NEW MEXICO-ARIZONA ACT THE MOST SATISFACTORY OF THE
RESTRICTIONS CONTAINED IN THE EARLIER GRANTS.  ITS PREMISE WAS THAT THE
GRANTS CANNOT "BE TOO CAREFULLY SAFEGUARDED FOR THE PURPOSE FOR WHICH
THEY ARE APPROPRIATED."  (FN17)  SENATOR BEVERIDGE DESCRIBED THE
RESTRICTIONS AS "QUITE THE MOST IMPORTANT ITEM" IN THE ENABLING ACT,
AND EMPHASIZED THAT HIS COMMITTEE BELIEVED THAT "WE WERE GIVING THE
LANDS TO THE STATES FOR SPECIFIC PURPOSES, AND THAT RESTRICTIONS SHOULD
BE THROWN ABOUT IT WHICH WOULD ASSURE ITS BEING USED FOR THOSE
PURPOSES."  (FN18) 

NOTHING IN THESE RESTRICTIONS IS EXPLICITLY ADDRESSED TO ACQUISITIONS
BY THE STATE FOR ITS OTHER PUBLIC ACTIVITIES; THE ENABLING ACT IS, AS
WE HAVE NOTED, ENTIRELY SILENT ON THESE QUESTIONS.  WE MUST
NEVERTHELESS CONCLUDE THAT THE PURPOSES OF CONGRESS REQUIRE THAT THE
ACT'S DESIGNATED BENEFICIARIES "DERIVE THE FULL BENEFIT"  (FN19)  OF
THE GRANT.  THE CONCLUSIVE PRESUMPTION OF ENHANCEMENT WHICH THE ARIZONA
SUPREME COURT FOUND DOES NOT IN OUR VIEW ADEQUATELY ASSURE FULFILLMENT
OF THAT PURPOSE, PARTICULARLY IN THE CONTEXT OF LANDS THAT ARE AS
VARIEGATED AND FAR-FLUNG AS THOSE COMPRISED IN THIS GRANT.  AND WE
THINK THAT THE MORE PARTICULARIZED SHOWING OF ENHANCEMENT ADVOCATED BY
THE UNITED STATES, RESTING AS IT LARGELY WOULD UPON THE FORECASTS OF
EXPERTS WHICH BY NATURE ARE SUBJECT TO THE IMPONDERABLES AND HAZARDS OF
THE FUTURE, ALSO FALLS SHORT OF ASSURING ACCOMPLISHMENT OF THE BASIC
INTENDMENT OF CONGRESS.  ACCEPTANCE OF EITHER OF THESE COURSES FOR
REIMBURSING THE TRUST IN THESE CIRCUMSTANCES MIGHT WELL RESULT IN
DIMINISHING THE BENEFITS CONFERRED BY CONGRESS AND IN EFFECT DEFLECTING
A PORTION OF THEM TO THE STATE'S HIGHWAY PROGRAM.  (FN20) 

WE HOLD THEREFORE THAT ARIZONA MUST ACTUALLY COMPENSATE THE TRUST IN
MONEY  (FN21)  FOR THE FULL APPRAISED VALUE OF ANY MATERIAL SITES OR
RIGHTS OF WAY WHICH IT OBTAINS ON OR OVER TRUST LANDS.  (FN22)  THIS
STANDARD MOST NEARLY REPRODUCES THE RESULTS OF THE AUCTION PRESCRIBED
BY THE ACT, AND MOST CONSISTENTLY REFLECTS THE ESSENTIAL PURPOSES OF
THE GRANT. 

THE JUDGMENT OF THE SUPREME COURT OF ARIZONA IS ACCORDINGLY REVERSED
AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  THIS ACTION IS IN FORM AND SUBSTANCE A CONTROVERSY BETWEEN TWO
AGENCIES OF THE STATE OF ARIZONA, BOTH FORMALLY REPRESENTED BY THE
STATE'S ATTORNEY GENERAL.  WE HAVE NONETHELESS CONCLUDED THAT THIS IS A
CASE WITH WHICH WE MAY PROPERLY DEAL.  THE LAND COMMISSIONER IS
APPARENTLY A SUBSTANTIALLY INDEPENDENT STATE OFFICER, APPOINTED FOR A
TERM OF YEARS AND REMOVABLE ONLY FOR CAUSE.   HE IS ESSENTIALLY THE
TRUSTEE OF THE TRUST AT ISSUE HERE, WITH CUSTODY OF THE TRUST LANDS. 
IN ADDITION, BOTH THE COMMISSIONER AND THE HIGHWAY DEPARTMENT ARE
REPRESENTED BY SPECIAL COUNSEL APPOINTED BY THE ATTORNEY GENERAL TO
ADVOCATE THE DIVERGENT POSITIONS OF THE PARTIES. 

FN2  THE GRANTS CONSISTED OF FOUR SECTIONS IN EACH TOWNSHIP FOR THE
SUPPORT OF COMMON SCHOOLS, PLUS SPECIFIED ACREAGES FOR OTHER DESIGNATED
PURPOSES.  THE OTHER ACREAGES WERE GRANTED FOR THE SUPPORT OF
AGRICULTURAL AND MECHANICAL COLLEGES, A SCHOOL OF MINES, MILITARY
INSTITUTES, THE PAYMENT OF BONDS, MINERS' HOSPITALS, PENITENTIARIES,
AND SIMILAR PURPOSES.  OF THE 10,790,000 ACRES GRANTED TO ARIZONA FOR
ALL DESIGNATED USES, SOME 9,180,000 ACRES WERE EARMARKED FOR VARIOUS
EDUCATIONAL PURPOSES, OF WHICH SOME 8,000,000 ACRES WERE GIVEN FOR THE
SUPPORT OF COMMON SCHOOLS. 

FN3  BETWEEN 1803 AND 1962, THE UNITED STATES GRANTED A TOTAL OF SOME
330,000,000 ACRES TO THE STATES FOR ALL PURPOSES.  OF THESE, SOME
78,000,000 ACRES WERE GIVEN IN SUPPORT OF COMMON SCHOOLS.  THE PUBLIC
LANDS, SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, 88TH CONG.,
1ST SESS., 60 (COMM. PRINT 1963). 

FN4  36 STAT. 575. 

FN5  NINE STATES URGED AS AMICI CURIAE THAT WE REVIEW THE JUDGMENT
BELOW.  ONE OF THE NINE, NEW MEXICO, RECEIVED LANDS IN TRUST UNDER THE
VERY GRANT IN ISSUE HERE.  THE SUPREME COURT OF NEW MEXICO HAS HELD IN
CLOSELY SIMILAR CIRCUMSTANCES THAT ACTUAL COMPENSATION MUST BE PAID TO
THE TRUST.  STATE V. WALKER, 61 N.M. 374, 301 P.2D 317. 

FN6  IN ADDITION, THE COURT SUGGESTED THAT THE RESTRICTIONS OF THE
ENABLING ACT ARE INAPPLICABLE HERE BECAUSE THE STATE OBTAINS LESS THAN
A FEE INTEREST.  THIS CONTENTION IS PLAINLY FORECLOSED BY THE LANGUAGE
OF SEC 28, BY WHICH "EVERY SALE, LEASE, CONVEYANCE, OR CONTRACT OF OR
CONCERNING ANY OF THE LANDS" IS VOID UNLESS IN SUBSTANTIAL CONFORMITY
WITH THE ACT. 

FN7  THE SCHOOL LANDS WERE GRANTED ACCORDING TO THE RIGID
CHECKERBOARD PATTERN OF THE FEDERAL SURVEY.  FOUR SECTIONS PER TOWNSHIP
WERE GRANTED BY NUMBER FOR THE SUPPORT OF COMMON SCHOOLS, INSTEAD OF
THE ONE SECTION PER TOWNSHIP ORDINARILY GIVEN IN THE EARLIER GRANTS,
BECAUSE THE UNAPPROPRIATED LANDS IN ARIZONA AND NEW MEXICO WERE LARGELY
OF SO LITTLE VALUE.  ORFIELD, FEDERAL LAND GRANTS TO THE STATES 45. 

FN8  S. REP. NO. 454, 61ST CONG., 2D SESS., 18. 

FN9  REMARKS OF SENATOR BEVERIDGE, 45 CONG. REC. 8227. 

FN10  IBID.  THESE VIOLATIONS CULMINATED IN A SERIES OF LAWSUITS
BROUGHT BY THE DEPARTMENT OF JUSTICE AGAINST THOSE PRIVY TO THEM. 
THESE LAWSUITS WERE PENDING WHEN THE ENABLING ACT WAS UNDER STUDY BY
CONGRESS.  THE IMPORTANCE OF THIS EPISODE IS ALSO INDICATED IN THE
COMMITTEE'S REPORT.  S. REP. NO. 454, 61ST CONG., 2D SESS., 19-20. 

FN11  ARIZ. REV. STAT. ANN. SEC 12-1122.  THE STATUTE PERMITS
BENEFITS TO REDUCE ANY DAMAGES CAUSED BY SEVERANCE TO THE UNCONDEMNED
PORTIONS OF A PARCEL OF LAND, BUT NOT TO REDUCE THE COMPENSATION PAID
FOR THE LAND WHICH IS CONDEMNED. 

FN12  36 STAT. 574. 

FN13  IBID.  THE ACT FIXED A MINIMUM PRICE OF $3 PER ACRE IN
ARIZONA.  THIS REQUIREMENT WAS REMOVED BY THE ACT OF JUNE 5, 1936.  49
STAT. 1477.  THE ACT STILL REQUIRES THAT LAND "SUSCEPTIBLE OF
IRRIGATION" UNDER FEDERAL OR OTHER PROJECTS NOT BE SOLD FOR LESS THAN
$25 PER ACRE.  36 STAT. 574. 

FN14  36 STAT. 574. 

FN15  ORFIELD, FEDERAL LAND GRANTS TO THE STATES 48-52. 

FN16  S. REP. NO. 454, 61ST CONG., 2D SESS., 20. 

FN17  IBID. 

FN18  REMARKS OF SENATOR BEVERIDGE, 45 CONG. REC. 8227. 

FN19  LETTER FROM FORMER SECRETARY OF THE INTERIOR GARFIELD TO THE
HOUSE COMMITTEE ON THE TERRITORIES.  H.R. REP. NO. 152, 61ST CONG., 2D
SESS., 3. 

FN20 DESPITE WIDESPREAD USE OF THE VALUE OF BENEFITS IN COMPUTING
CONDEMNATION AWARDS, THE VARIOUS RULES ADOPTED FOR THAT PURPOSE HAVE
CREATED CONFUSION AND DIFFICULTIES.  SEE HAAR & HERING, THE
DETERMINATION OF BENEFITS IN LAND ACQUISITION, 51 CALIF. L. REV. 833. 
THESE PROBLEMS WOULD BE AGGRAVATED IN THE CONTEXT OF THIS SITUATION,
SINCE THE BENEFITS WOULD HAVE TO BE INDIVIDUALLY COMPUTED FOR TRACTS OF
LAND SCATTERED OVER THE ENTIRE STATE. 

FN21  WE DO NOT MEAN TO SUGGEST THAT DEFERRED PAYMENT ARRANGEMENTS
MIGHT NOT BE APPROPRIATE.  CF. THE PROVISIONS OF SEC 28 (SEE APPENDIX):
"NO SALE OR OTHER DISPOSAL THEREOF SHALL BE MADE FOR A CONSIDERATION
LESS THAN THE VALUE SO ASCERTAINED, NOR UPON CREDIT UNLESS ACCOMPANIED
BY AMPLE SECURITY, AND THE LEGAL TITLE SHALL NOT BE DEEMED TO HAVE
PASSED UNTIL THE CONSIDERATION SHALL HAVE BEEN PAID."  NOR DO WE MEAN
THAT EXCHANGES, IN THE SITUATIONS IN WHICH THEY ARE PERMITTED BY THE
ACT, WOULD NOT BE APPROPRIATE.  CF. THE PROVISIONS OF SEC 28 (SEE
APPENDIX): "THE STATE OF ARIZONA IS AUTHORIZED TO EXCHANGE ANY LANDS
OWNED BY IT FOR OTHER LANDS, PUBLIC OR PRIVATE, UNDER SUCH REGULATIONS
AS THE LEGISLATURE THEREOF MAY PRESCRIBE:  PROVIDED, THAT SUCH
EXCHANGES INVOLVING PUBLIC LANDS MAY BE MADE ONLY AS AUTHORIZED BY ACTS
OF CONGRESS AND REGULATIONS THEREUNDER." 

FN22 WE ARE INFORMED BY COUNSEL THAT OVER A PERIOD OF YEARS ARIZONA
HAS OBTAINED THE USE OF LARGE AREAS OF TRUST LANDS ON BASES THAT MAY
NOT HAVE ACCORDED WITH THOSE SET FORTH IN THIS OPINION.  WE WISH TO
MAKE IT PLAIN THAT WE DO NOT REACH EITHER THE VALIDITY OF ANY SUCH
TRANSFERS OR THE OBLIGATIONS OF THE STATE, IF ANY, WITH RESPECT
THERETO. 

                        APPENDIX TO OPINION OF THE COURT. 

                         SECTION 28 OF NEW MEXICO-ARIZONA

                           ENABLING ACT, AS AMENDED. 

SEC. 28.  THAT IT IS HEREBY DECLARED THAT ALL LANDS HEREBY GRANTED,
INCLUDING THOSE WHICH, HAVING BEEN HERETOFORE GRANTED TO THE SAID
TERRITORY, ARE HEREBY EXPRESSLY TRANSFERRED AND CONFIRMED TO THE SAID
STATE, SHALL BE BY THE SAID STATE HELD IN TRUST, TO BE DISPOSED OF IN
WHOLE OR IN PART ONLY IN MANNER AS HEREIN PROVIDED AND FOR THE SEVERAL
OBJECTS SPECIFIED IN THE RESPECTIVE GRANTING AND CONFIRMATORY
PROVISIONS, AND THAT THE NATURAL PRODUCTS AND MONEY PROCEEDS OF ANY OF
SAID LANDS SHALL BE SUBJECT TO THE SAME TRUSTS AS THE LANDS PRODUCING
THE SAME. 

DISPOSITION OF ANY OF SAID LANDS, OR OF ANY MONEY OR THING OF VALUE
DIRECTLY OR INDIRECTLY DERIVED THEREFROM, FOR ANY OBJECT OTHER THAN FOR
WHICH SUCH PARTICULAR LANDS, OR THE LANDS FROM WHICH SUCH MONEY OR
THING OF VALUE SHALL HAVE BEEN DERIVED, WERE GRANTED OR CONFIRMED, OR
IN ANY MANNER CONTRARY TO THE PROVISIONS OF THIS ACT, SHALL BE DEEMED A
BREACH OF TRUST. 

NO MORTGAGE OR OTHER ENCUMBRANCE OF THE SAID LANDS, OR ANY PART
THEREOF, SHALL BE VALID IN FAVOR OF ANY PERSON OR FOR ANY PURPOSE OR
UNDER ANY CIRCUMSTANCES WHATSOEVER.  SAID LANDS SHALL NOT BE SOLD OR
LEASED, IN WHOLE OR IN PART, EXCEPT TO THE HIGHEST AND BEST BIDDER AT A
PUBLIC AUCTION TO BE HELD AT THE COUNTY SEAT OF THE COUNTY WHEREIN THE
LANDS TO BE AFFECTED, OR THE MAJOR PORTION THEREOF, SHALL LIE, NOTICE
OF WHICH PUBLIC AUCTION SHALL FIRST HAVE BEEN DULY GIVEN BY
ADVERTISEMENT, WHICH SHALL SET FORTH THE NATURE, TIME, AND PLACE OF THE
TRANSACTION TO BE HAD, WITH A FULL DESCRIPTION OF THE LANDS TO BE
OFFERED, AND BE PUBLISHED ONCE EACH WEEK FOR NOT LESS THAN TEN
SUCCESSIVE WEEKS IN A NEWSPAPER OF GENERAL CIRCULATION PUBLISHED
REGULARLY AT THE STATE CAPITAL, AND IN THAT NEWSPAPER OF LIKE
CIRCULATION WHICH SHALL THEN BE REGULARLY PUBLISHED NEAREST TO THE
LOCATION OF THE LANDS SO OFFERED; NOR SHALL ANY SALE OR CONTRACT FOR
THE SALE OF ANY TIMBER OR OTHER NATURAL PRODUCT OF SUCH LANDS BE MADE,
SAVE AT THE PLACE, IN THE MANNER, AND AFTER THE NOTICE BY PUBLICATION
PROVIDED FOR SALES AND LEASES OF THE LANDS THEMSELVES.  NOTHING HEREIN
CONTAINED SHALL PREVENT:  (1) THE LEASING OF ANY OF THE LANDS REFERRED
TO IN THIS SECTION, IN SUCH MANNER AS THE LEGISLATURE OF THE STATE OF
ARIZONA MAY PRESCRIBE, FOR GRAZING, AGRICULTURAL, COMMERCIAL, AND
HOMESITE PURPOSES, FOR A TERM OF TEN YEARS OR LESS; (2) THE LEASING OF
ANY OF SAID LANDS, IN SUCH MANNER AS THE LEGISLATURE OF THE STATE OF
ARIZONA MAY PRESCRIBE, WHETHER OR NOT ALSO LEASED FOR GRAZING AND
AGRICULTURAL PURPOSES, FOR MINERAL PURPOSES, OTHER THAN FOR THE
EXPLORATION, DEVELOPMENT, AND PRODUCTION OF OIL, GAS, AND OTHER
HYDROCARBON SUBSTANCES, FOR A TERM OF TWENTY YEARS OR LESS; (3) THE
LEASING OF ANY SAID LANDS, WHETHER OR NOT ALSO LEASED FOR OTHER
PURPOSES, FOR THE EXPLORATION, DEVELOPMENT, AND PRODUCTION OF OIL, GAS
AND OTHER HYDROCARBON SUBSTANCES ON, IN, OR UNDER SAID LANDS FOR AN
INITIAL TERM OF TWENTY YEARS OR LESS AND AS LONG THEREAFTER AS OIL,
GAS, OR OTHER HYDROCARBON SUBSTANCE MAY BE PROCURED THEREFROM IN PAYING
QUANTITIES, THE LEASES TO BE MADE IN ANY MANNER, WITH OR WITHOUT
ADVERTISEMENT, BIDDING, OR APPRAISEMENT, AND UNDER SUCH TERMS AND
PROVISIONS AS THE LEGISLATURE OF THE STATE OF ARIZONA MAY PRESCRIBE,
THE TERMS AND PROVISIONS TO INCLUDE A RESERVATION OF A ROYALTY TO SAID
STATE OF NOT LESS THAN 12 1/2 PER CENTUM OF PRODUCTION; OR (4) THE
LEGISLATURE OF THE STATE OF ARIZONA FROM PROVIDING BY PROPER LAWS FOR
THE PROTECTION OF LESSEES OF SAID LANDS, WHEREBY SUCH LESSEES SHALL BE
PROTECTED IN THEIR RIGHTS TO THEIR IMPROVEMENTS (INCLUDING WATER
RIGHTS) IN SUCH MANNER THAT IN CASE OF LEASE OR SALE OF SAID LANDS TO
OTHER PARTIES THE FORMER LESSEE SHALL BE PAID BY THE SUCCEEDING LESSEE
OR PURCHASER THE VALUE OF SUCH IMPROVEMENTS AND RIGHTS PLACE THEREON BY
SUCH LESSEE. 

ALL LANDS, LEASEHOLDS, TIMBER, AND OTHER PRODUCTS OF LAND, BEFORE
BEING OFFERED, SHALL BE APPRAISED AT THEIR TRUE VALUE, AND NO SALE OR
OTHER DISPOSAL THEREOF SHALL BE MADE FOR A CONSIDERATION LESS THAN THE
VALUE SO ASCERTAINED, NOR UPON CREDIT UNLESS ACCOMPANIED BY AMPLE
SECURITY, AND THE LEGAL TITLE SHALL NOT BE DEEMED TO HAVE PASSED UNTIL
THE CONSIDERATION SHALL HAVE BEEN PAID. 

NO LANDS SHALL BE SOLD FOR LESS THAN THEIR APPRAISED VALUE, AND NO
LANDS WHICH ARE OR SHALL BE SUSCEPTIBLE OF IRRIGATION UNDER ANY
PROJECTS NOW OR HEREAFTER COMPLETED OR ADOPTED BY THE UNITED STATES
UNDER LEGISLATION FOR THE RECLAMATION OF LANDS, OR UNDER ANY OTHER
PROJECT FOR THE RECLAMATION OF LANDS, SHALL BE SOLD AT LESS THAN TWENTY
FIVE DOLLARS PER ACRE: PROVIDED, THAT SAID STATE, AT THE REQUEST OF THE
SECRETARY OF THE INTERIOR, SHALL FROM TIME TO TIME RELINQUISH SUCH OF
ITS LANDS TO THE UNITED STATES AS AT ANY TIME ARE NEEDED FOR IRRIGATION
WORKS IN CONNECTION WITH ANY SUCH GOVERNMENT PROJECT.  AND OTHER LANDS
IN LIEU THEREOF ARE HEREBY GRANTED TO SAID STATE, TO BE SELECTED FROM
LANDS OF THE CHARACTER NAMED AND IN THE MANNER PRESCRIBED IN SECTION
TWENTY-FOUR OF THIS ACT. 

THE STATE OF ARIZONA IS AUTHORIZED TO EXCHANGE ANY LANDS OWNED BY IT
FOR OTHER LANDS, PUBLIC OR PRIVATE, UNDER SUCH REGULATIONS AS THE
LEGISLATURE THEREOF MAY PRESCRIBE: PROVIDED, THAT SUCH EXCHANGES
INVOLVING PUBLIC LANDS MAY BE MADE ONLY AS AUTHORIZED BY ACTS OF
CONGRESS AND REGULATIONS THEREUNDER.    THERE IS HEREBY RESERVED TO THE
UNITED STATES AND EXCEPTED FROM THE OPERATION OF ANY AND ALL GRANTS
MADE OR CONFIRMED BY THIS ACT TO SAID PROPOSED STATE ALL LAND ACTUALLY
OR PROSPECTIVELY VALUABLE FOR THE DEVELOPMENT OF WATER POWER OR POWER
FOR HYDRO-ELECTRIC USE OR TRANSMISSION AND WHICH SHALL BE ASCERTAINED
AND DESIGNATED BY THE SECRETARY OF THE INTERIOR WITHIN FIVE YEARS AFTER
THE PROCLAMATION OF THE PRESIDENT DECLARING THE ADMISSION OF THE STATE;
AND NO LANDS SO RESERVED AND EXCEPTED SHALL BE SUBJECT TO ANY
DISPOSITION WHATSOEVER BY SAID STATE, AND ANY CONVEYANCE OR TRANSFER OF
SUCH LAND BY SAID STATE OR ANY OFFICER THEREOF SHALL BE ABSOLUTELY NULL
AND VOID WITHIN THE PERIOD ABOVE NAMED; AND IN LIEU OF THE LAND SO
RESERVED TO THE UNITED STATES AND EXCEPTED FROM THE OPERATION OF ANY OF
SAID GRANTS THERE BE, AND IS HEREBY, GRANTED TO THE PROPOSED STATE AN
EQUAL QUANTITY OF LAND TO BE SELECTED FROM LAND OF THE CHARACTER NAMED
AND IN THE MANNER PRESCRIBED IN SECTION TWENTY-FOUR OF THIS ACT. 

A SEPARATE FUND SHALL BE ESTABLISHED FOR EACH OF THE SEVERAL OBJECTS
FOR WHICH THE SAID GRANTS ARE HEREBY MADE OR CONFIRMED, AND WHENEVER
ANY MONEYS SHALL BE IN ANY MANNER DERIVED FROM ANY OF SAID LAND THE
SAME SHALL BE DEPOSITED BY THE STATE TREASURER IN THE FUND
CORRESPONDING TO THE GRANT UNDER WHICH THE PARTICULAR LAND PRODUCING
SUCH MONEYS WAS BY THIS ACT CONVEYED OR CONFIRMED.  NO MONEYS SHALL
EVER BE TAKEN FROM ONE FUND FOR DEPOSIT IN ANY OTHER, OR FOR ANY OBJECT
OTHER THAN THAT FOR WHICH THE LAND PRODUCING THE SAME WAS GRANTED OR
CONFIRMED.  THE STATE TREASURER SHALL KEEP ALL SUCH MONEYS INVESTED IN
SAFE, INTEREST-BEARING SECURITIES, WHICH SECURITIES SHALL BE APPROVED
BY THE GOVERNOR AND SECRETARY OF STATE OF SAID PROPOSED STATE, AND
SHALL AT ALL TIMES BE UNDER A GOOD AND SUFFICIENT BOND OR BONDS
CONDITIONED FOR THE FAITHFUL PERFORMANCE OF HIS DUTIES IN REGARD
THERETO, AS DEFINED BY THIS ACT AND THE LAWS OF THE STATE NOT IN
CONFLICT HEREWITH. 

EVERY SALE, LEASE, CONVEYANCE, OR CONTRACT OF OR CONCERNING ANY OF
THE LANDS HEREBY GRANTED OR CONFIRMED, OR THE USE THEREOF OR THE
NATURAL PRODUCTS THEREOF, NOT MADE IN SUBSTANTIAL CONFORMITY WITH THE
PROVISIONS OF THIS ACT SHALL BE NULL AND VOID, ANY PROVISION OF THE
CONSTITUTION OR LAWS OF THE SAID STATE TO THE CONTRARY
NOTWITHSTANDING. 

IT SHALL BE THE DUTY OF THE ATTORNEY-GENERAL OF THE UNITED STATES TO
PROSECUTE, IN THE NAME OF THE UNITED STATES AND IN ITS COURTS, SUCH
PROCEEDINGS AT LAW OR IN EQUITY AS MAY FROM TIME TO TIME BE NECESSARY
AND APPROPRIATE TO ENFORCE THE PROVISIONS HEREOF RELATIVE TO THE
APPLICATION AND DISPOSITION OF THE SAID LANDS AND THE PRODUCTS THEREOF
AND THE FUNDS DERIVED THEREFROM. 

NOTHING HEREIN CONTAINED SHALL BE TAKEN AS IN LIMITATION OF THE POWER
OF THE STATE OR OF ANY CITIZEN THEREOF TO ENFORCE THE PROVISIONS OF
THIS ACT. 
..END :










UNITED STATES V. LAUB 385 U.S. 475 


NO. 176.  ARGUED NOVEMBER 16, 1966.  - DECIDED JANUARY 10, 1967.  - 253
F. SUPP. 433, AFFIRMED. 


APPELLEES WERE INDICTED FOR CONSPIRING TO VIOLATE SEC. 215(B) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952 BY RECRUITING AND ARRANGING THE
TRAVEL TO CUBA OF 58 UNITED STATES CITIZENS WHOSE PASSPORTS, ALTHOUGH
OTHERWISE VALID, WERE NOT SPECIFICALLY ENDORSED FOR TRAVEL TO CUBA. 
AND WHEN THE PRESIDENT FINDS AND PROCLAIMS THAT SUCH RESTRICTIONS ARE
NECESSARY IN THE NATIONAL INTEREST, "IT SHALL  ...  BE UNLAWFUL FOR ANY
CITIZEN OF THE UNITED STATES TO DEPART FROM OR ENTER, OR ATTEMPT TO
DEPART FROM OR ENTER, THE UNITED STATES UNLESS HE BEARS A VALID
PASSPORT."  THE REQUIRED FINDING AND PROCLAMATION WERE MADE ON JANUARY
17, 1953, AND VALID PASSPORTS WERE THEREAFTER REQUIRED OF UNITED STATES
CITIZENS EXCEPT WHEN TRAVELING TO OR FROM AREAS EXEMPTED BY STATE
DEPARTMENT REGULATIONS.  AFTER DIPLOMATIC RELATIONS WITH CUBA WERE
SEVERED ON JANUARY 3, 1961, A STATE DEPARTMENT REGULATION EXCLUDED CUBA
FROM WESTERN HEMISPHERE COUNTRIES EXEMPTED FROM THE PASSPORT
REQUIREMENT.  ON THE SAME DAY THE DEPARTMENT ISSUED A PUBLIC NOTICE AND
A PRESS RELEASE, DECLARING OUTSTANDING PASSPORTS INVALID FOR TRAVEL TO
CUBA UNLESS ENDORSED THEREFOR.  THEREAFTER, APPELLEES ALLEGEDLY ENGAGED
IN THE CHARGED CONSPIRACY.  THE DISTRICT COURT DISMISSED THE INDICTMENT
FOR FAILURE TO STATE AN OFFENSE OF CONSPIRACY TO VIOLATE SEC. 215(B). 
A DIRECT APPEAL WAS TAKEN TO THIS COURT.  HELD:  AREA RESTRICTIONS UPON
THE USE OF AN OTHERWISE VALID PASSPORT ARE NOT CRIMINALLY ENFORCEABLE
UNDER SEC. 215(B).  PP. 479-487. 

(A)  "SECTION 215(B) IS A CRIMINAL STATUTE.  IT MUST THEREFORE BE
NARROWLY CONSTRUED.  UNITED STATES V. WILTBERGER, 5 WHEAT.  76, 95-96,
105 (1820)(MARSHALL, C.J.)."  P. 480. 

(B)  AS THE GOVERNMENT CONCEDES, "SECTION 215(B) DOES NOT, IN SO MANY
WORDS, PROHIBIT VIOLATIONS OF AREA RESTRICTIONS  ...  ."  P. 480. 

(C)  "THE RIGHT TO TRAVEL IS A PART OF THE 'LIBERTY' OF WHICH THE
CITIZEN CANNOT BE DEPRIVED WITHOUT DUE PROCESS OF LAW  ... ."  KENT V.
DULLES, 357 U.S. 116, 125 (1958).  P. 481. 

(D)  "THERE IS NO DOUBT THAT WITH THE ADOPTION AND PROMULGATION OF
THE 'EXCLUDING CUBA' REGULATION, A PASSPORT WAS REQUIRED FOR DEPARTURE
FROM THIS COUNTRY FOR CUBA AND FOR ENTRY INTO THIS COUNTRY FROM CUBA. 
DEPARTURE FOR CUBA OR ENTRY FROM CUBA WITHOUT A PASSPORT WOULD BE A
VIOLATION OF SEC. 215(B)  ...  .  BUT IT DOES NOT FOLLOW THAT TRAVEL TO
CUBA WITH A PASSPORT WHICH IS NOT SPECIFICALLY VALIDATED FOR THAT
COUNTRY IS A CRIMINAL OFFENSE."  P. 481. 

(E)  NEITHER THE STATE DEPARTMENT'S PUBLIC NOTICE NOR ITS PRESS
RELEASE REFERRED TO SEC 215(B) OR TO CRIMINAL SANCTIONS.  "ON THE
CONTRARY, THE ONLY REFERENCE TO THE SJATUTORY BASE OF THE ANNOUNCEMENT
...  IS A REFERENCE TO THE NONPENAL 1926 ACT  ...  (WHICH AUTHORIZES)
THE SECRETARY OF STATE TO IMPOSE AREA RESTRICTIONS  ...  ."  P. 482. 

(F)  THE "UNBROKEN TENOR OF STATE DEPARTMENT PRONOUNCEMENTS ON AREA
RESTRICTIONS," HAS CAST THEM "EXCLUSIVELY IN CIVIL TERMS, RELATING TO
THE STATE DEPARTMENT'S 'SAFE PASSAGE' FUNCTIONS."  P. 483. 

(G)  "UNTIL THESE INDICTMENTS  ...  THE STATE DEPARTMENT HAD
CONSISTENTLY TAKEN THE POSITION THAT THERE WAS NO STATUTE WHICH IMPOSED
OR AUTHORIZED  ...  PROHIBITION" OF TRAVEL IN VIOLATION OF AREA
RESTRICTIONS.  P. 485. 

(H)  "THE AREA TRAVEL RESTRICTION, REQUIRING SPECIAL VALIDATION OF
PASSPORTS FOR TRAVEL TO CUBA, WAS A VALID CIVIL REGULATION  ...  BUT IT
WAS NOT AND WAS NOT INTENDED OR REPRESENTED TO BE AN EXERCISE OF
AUTHORITY UNDER SEC. 215(B)  ...  ."  P. 487. 

UNITED STATES V. LAUB ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF NEW YORK. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

APPELLEES WERE INDICTED UNDER 18 U.S.C. SEC. 371 FOR CONSPIRING TO
VIOLATE SEC. 215(B) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66
STAT. 190, 8 U.S.C. SEC. 1185(B).  THE ALLEGED CONSPIRACY CONSISTED OF
RECRUITING AND ARRANGING THE TRAVEL TO CUBA OF 58 AMERICAN CITIZENS
WHOSE PASSPORTS, ALTHOUGH OTHERWISE VALID, WERE NOT SPECIFICALLY
VALIDATED FOR TRAVEL TO THAT COUNTRY.  (FN1) 

THE DISTRICT COURT GRANTED APPELLEES' MOTION TO DISMISS THE
INDICTMENT.  CHIEF JUDGE ZAVATT FILED AN EXHAUSTIVE OPINION (253 F.
SUPP. 433.  (D.C.E.D.N.Y.)).  NOTICE OF DIRECT APPEAL TO THIS COURT WAS
FILED AND WE NOTED PROBABLE JURISDICTION UNDER 18 U.S.C. SEC 3731
BECAUSE THE DISMISSAL WAS "BASED UPON THE  ...  CONSTRUCTION OF THE
STATUTE UPON WHICH THE INDICTMENT  ...  IS FOUNDED."  WE AFFIRM.  OUR
DECISION RESTS ENTIRELY UPON OUR CONSTRUCTION OF THE RELEVANT STATUTES
AND REGULATIONS. 

TWO STATUTES ARE RELEVANT TO THIS CASE.  THE FIRST IS THE PASSPORT
ACT OF 1926, 44 STAT.  887, 22 U.S.C. SEC 211A.  THIS IS THE GENERAL
STATUTE AUTHORIZING THE SECRETARY OF STATE TO "GRANT AND ISSUE
PASSPORTS."  IT IS NOT A CRIMINAL STATUTE.  THE SECOND STATUTE IS SEC.
215(B) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, SUPRA, UNDER
WHICH THE PRESENT INDICTMENTS WERE BROUGHT.  SECTION 215(B) WAS ENACTED
ON JUNE 27, 1952.  IT IS A RE-ENACTMENT OF THE ACT OF MAY 22, 1918 (40
STAT. 559), AND THE ACT OF JUNE 21, 1941 (55 STAT. 252).  IT PROVIDES
THAT: 

"WHEN THE UNITED STATES IS AT WAR OR DURING THE EXISTENCE OF ANY
NATIONAL EMERGENCY PROCLAIMED BY THE PRESIDENT  ...  AND WHEN THE
PRESIDENT SHALL FIND THAT THE INTERESTS OF THE UNITED STATES REQUIRE
THAT RESTRICTIONS AND PROHIBITIONS  ...  BE IMPOSED UPON THE DEPARTURE
OF PERSONS FROM AND THEIR ENTRY INTO THE UNITED STATES, AND SHALL MAKE
PUBLIC PROCLAMATION THEREOF, IT SHALL  ...  (B) ...  BE UNLAWFUL FOR
ANY CITIZEN OF THE UNITED STATES TO DEPART FROM OR ENTER, OR ATTEMPT TO
DEPART FROM OR ENTER, THE UNITED STATES UNLESS HE BEARS A VALID
PASSPORT." 

WILFUL VIOLATION IS SUBJECTED TO A FINE OF NOT MORE THAN $5,000 OR
IMPRISONMENT FOR FIVE YEARS, OR BOTH. 

ON JANUARY 17, 1953, PRESIDENT TRUMAN MADE THE FINDING AND
PROCLAMATION REQUIRED BY SEC 215(B).  (FN2)  AS A CONSEQUENCE, A VALID
PASSPORT HAS BEEN REQUIRED FOR DEPARTURE AND ENTRY OF UNITED STATES
NATIONALS FROM AND INTO THE UNITED STATES AND ITS TERRITORIES, EXCEPT
AS TO AREAS SPECIFICALLY EXEMPTED BY REGULATIONS.  THE PROCLAMATION
ADOPTED THE REGULATIONS WHICH THE SECRETARY OF STATE HAD PROMULGATED
UNDER THE PREDECESSORS OF SEC. 215(B) EXEMPTING FROM THE PASSPORT
REQUIREMENT DEPARTURE TO OR ENTRY FROM "ANY COUNTRY OR TERRITORY IN
NORTH, CENTRAL, OR SOUTH AMERICA (INCLUDING CUBA)."  22 CFR SEC.
53.3(B) (1958 REV.).  ON JANUARY 3, 1961, THE UNITED STATES BROKE
DIPLOMATIC RELATIONS WITH CUBA.  ON JANUARY 16, 1961, THE DEPUTY UNDER
SECRETARY OF STATE FOR ADMINISTRATION ISSUED THE "EXCLUDING CUBA"
AMENDMENT (22 CFR SEC 53.3 (1965 REV.), 26 FED. REG. 482).  THAT
AMENDMENT ADDED THE TWO WORDS "EXCLUDING CUBA" TO THE PHRASE QUOTED
ABOVE.  CUBA WAS THEREBY INCLUDED IN THE GENERAL REQUIREMENT OF A
PASSPORT FOR DEPARTURE FROM AND ENTRY INTO THE UNITED STATES. 

ON THE SAME DAY, THE DEPARTMENT OF STATE ALSO ISSUED PUBLIC NOTICE
179, WHICH STATED THAT "HEREAFTER UNITED STATES PASSPORTS SHALL NOT BE
VALID FOR TRAVEL TO OR IN CUBA UNLESS SPECIFICALLY ENDORSED FOR SUCH
TRAVEL UNDER THE AUTHORITY OF THE SECRETARY OF STATE  ...  ."  26 FED.
REG. 492.  IT SIMULTANEOUSLY ISSUED A PRESS RELEASE ANNOUNCING THAT: 

"  ...  IN VIEW OF THE U.S. GOVERNMENT'S INABILITY, FOLLOWING THE
BREAK IN DIPLOMATIC RELATIONS BETWEEN THE UNITED STATES AND CUBA, TO
EXTEND NORMAL PROTECTIVE SERVICES TO AMERICANS VISITING CUBA, U.S.
CITIZENS DESIRING TO GO TO CUBA MUST UNTIL FURTHER NOTICE OBTAIN
PASSPORTS SPECIFICALLY ENDORSED BY THE DEPARTMENT OF STATE FOR SUCH
TRAVEL.  ALL OUTSTANDING PASSPORTS  ...  ARE BEING DECLARED INVALID FOR
TRAVEL TO CUBA UNLESS SPECIFICALLY ENDORSED FOR SUCH TRAVEL  ...  .
THESE ACTIONS HAVE BEEN TAKEN IN CONFORMITY WITH THE DEPARTMENT'S
NORMAL PRACTICE OF LIMITING TRAVEL TO THOSE COUNTRIES WITH WHICH THE
UNITED STATES DOES NOT MAINTAIN DIPLOMATIC RELATIONS."  (FN3) 

IN ZEMEL V. RUSK, 381 U.S. 1 (1965), THE PETITIONER SOUGHT A
DECLARATORY JUDGMENT THAT THE SECRETARY OF STATE DOES NOT HAVE
STATUTORY AUTHORIZATION TO IMPOSE AREA RESTRICTIONS ON TRAVEL; THAT IF
THE STATUTE WERE CONSTRUED TO AUTHORIZE THE SECRETARY TO DO SO, IT
WOULD BE AN IMPERMISSIBLE DELEGATION OF POWER; AND THAT, IN ANY EVENT,
THE EXERCISE OF THE POWER TO RESTRICT TRAVEL DENIED TO PETITIONER HIS
RIGHTS UNDER THE FIRST AND FIFTH AMENDMENTS.  THIS COURT REJECTED
PETITIONER'S CLAIMS AND SUSTAINED THE SECRETARY'S STATUTORY POWER TO
REFUSE TO VALIDATE PASSPORTS FOR TRAVEL TO CUBA.  IT FOUND AUTHORITY
FOR AREA RESTRICTIONS IN THE GENERAL PASSPORT AUTHORITY VESTED IN THE
SECRETARY OF STATE BY THE 1926 ACT, RELYING UPON THE SUCCESSIVE
"IMPOSITION OF AREA RESTRICTIONS DURING BOTH TIMES OF WAR AND PERIODS
OF PEACE" BEFORE AND AFTER THE ENACTMENT OF THE ACT OF 1926.  381 U.S.,
AT 8-9.  THE COURT SPECIFICALLY DECLINED THE SOLICITOR GENERAL'S
INVITATION TO RULE ALSO THAT "TRAVEL IN VIOLATION OF AN AREA
RESTRICTION IMPOSED ON AN OTHERWISE VALID PASSPORT IS UNLAWFUL UNDER
THE 1952 ACT."  ID., AT 12.  (FN4) 

WE NOW CONFRONT THAT QUESTION.  SECTION 215(B) IS A CRIMINAL
STATUTE.  IT MUST THEREFORE BE NARROWLY CONSTRUED.  UNITED STATES V.
WILTBERGER, 5 WHEAT.  76, 95-96, 105 (1820)(MARSHALL, C.J.).  APPELLEES
URGE THAT SEC. 215(B) MUST BE READ AS A "BROADER CONTROL" STATUTE,
REQUIRING ONLY THAT A CITIZEN MAY NOT "DEPART FROM OR ENTER" THE UNITED
STATES WITHOUT "A VALID PASSPORT."  ON THIS BASIS, THEY ARGUE,
APPELLEES DID NOT CONSPIRE TO VIOLATE THE STATUTE SINCE ALL OF THOSE
WHO WENT TO CUBA DEPARTED AND RE-ENTERED THE UNITED STATES BEARING
VALID PASSPORTS.  ONLY IF, AS THE GOVERNMENT URGES, SEC. 215(B) CAN BE
GIVEN A BROADER MEANING SO AS TO ENCOMPASS SPECIFIC DESTINATION CONTROL
- ONLY IF IT IS READ AS REQUIRING THE TRAVELER TO BEAR "A PASSPORT
ENDORSED AS VALID FOR TRAVEL TO THE COUNTRY FOR WHICH HE DEPARTS OR
FROM WHICH HE RETURNS" - WOULD APPELLEES BE GUILTY OF ANY VIOLATION. 

WE BEGIN WITH THE FACT, CONCEDED BY THE GOVERNMENT, THAT "SECTION
215(B) DOES NOT, IN SO MANY WORDS, PROHIBIT VIOLATIONS OF AREA
RESTRICTIONS; IT SPEAKS, AS THE DISTRICT COURT NOTED IN THE LAUB CASE
...  IN THE LANGUAGE OF 'BORDER CONTROL STATUTES REGULATING DEPARTURE
FROM AND ENTRY INTO THE UNITED STATES.'"  BRIEF FOR THE UNITED STATES,
P. 11.  NEVERTHELESS, THE GOVERNMENT REQUESTS US TO SUSTAIN THIS
CRIMINAL PROSECUTION AND REVERSE THE DISTRICT COURT ON THE GROUND THAT
SOMEHOW, "THE TEXT IS BROAD ENOUGH TO ENCOMPASS DEPARTURES FOR
GEOGRAPHICALLY RESTRICTED AREAS  ...  ."  IBID.  WE CONCLUDE, HOWEVER,
THAT IN THIS CRIMINAL PROCEEDING THE STATUTE CANNOT BE APPLIED IN THIS
FASHION.  EVEN IF INGENUITY WERE ABLE TO FIND CONCEALED IN THE TEXT A
BASIS FOR THIS CRIMINAL PROSECUTION, FACTORS WHICH WE MUST TAKE INTO
ACCOUNT, DRAWN FROM THE HISTORY OF THE STATUTE, WOULD PRECLUDE SUCH A
READING. 

PRELIMINARILY, IT IS ESSENTIAL TO RECALL THE NATURE AND FUNCTION OF
THE PASSPORT.  A PASSPORT IS A DOCUMENT IDENTIFYING A CITIZEN, IN
EFFECT REQUESTING FOREIGN POWERS TO ALLOW THE BEARER TO ENTER AND TO
PASS FREELY AND SAFELY, RECOGNIZING THE RIGHT OF THE BEARER TO THE
PROTECTION AND GOOD OFFICES OF AMERICAN DIPLOMATIC AND CONSULAR
OFFICERS.  SEE URTETIQUI V. D'ARCY, 9 PET. 692, 699 (1835); KENT V.
DULLES, 357 U.S. 116, 120-121 (1958); 3 HACKWORTH, DIGEST OF
INTERNATIONAL LAW 435 (1942).  8 U.S.C. SEC. 1101(A)(30). 

AS THIS COURT HAS OBSERVED, "THE RIGHT TO TRAVEL IS A PART OF THE
'LIBERTY' OF WHICH THE CITIZEN CANNOT BE DEPRIVED WITHOUT DUE PROCESS
OF LAW  ...  ."  KENT V. DULLES, SUPRA, 357 U.S., AT 125.  SEE APTHEKER
V. SECRETARY OF STATE, 378 U.S. 500, 517 (1964); ZEMEL V. RUSK, 381
U.S. 1 (1965). 

UNDER SEC. 215(B) AND ITS PREDECESSOR STATUTES, CONGRESS AUTHORIZED
THE REQUIREMENT THAT A CITIZEN POSSESS A PASSPORT FOR DEPARTURE FROM
AND ENTRY INTO THE UNITED STATES,  (FN5)  AND THERE IS NO DOUBT THAT
WITH THE ADOPTION AND PROMULGATION OF THE "EXCLUDING CUBA" REGULATION,
A PASSPORT WAS REQUIRED FOR DEPARTURE FROM THIS COUNTRY FOR CUBA AND
FOR ENTRY INTO THIS COUNTRY FROM CUBA.  DEPARTURE FOR CUBA OR ENTRY
FROM CUBA WITHOUT A PASSPORT WOULD BE A VIOLATION OF SEC. 215(B),
EXPOSING THE TRAVELER TO THE CRIMINAL PENALTIES PROVIDED IN THAT
WHICH IS NOT SPECIFICALLY VALIDATED FOR THAT COUNTRY IS A CRIMINAL
OFFENSE.  VIOLATION OF THE "AREA RESTRICTION" - "INVALIDATING"
PASSPORTS FOR TRAVEL IN OR TO CUBA AND REQUIRING SPECIFIC VALIDATION OF
PASSPORTS IF THEY ARE TO BE VALID FOR TRAVEL TO OR IN CUBA - IS QUITE A
DIFFERENT MATTER FROM VIOLATION OF THE REQUIREMENT OF SEC. 215(B) AND
THE REGULATIONS THEREUNDER THAT A CITIZEN BEAR A "VALID PASSPORT" FOR
DEPARTURE FROM OR ENTRY INTO THE UNITED STATES. 

THE AREA RESTRICTION APPLICABLE TO CUBA WAS PROMULGATED BY A "PUBLIC
NOTICE" AND A PRESS RELEASE, SUPRA, PP. 478-479, NEITHER OF WHICH
REFERRED TO SEC. 215(B) OR TO CRIMINAL SANCTIONS.  ON THE CONTRARY, THE
ONLY REFERENCE TO THE STATUTORY BASE OF THE ANNOUNCEMENT APPEARS IN THE
"PUBLIC NOTICE," AND THIS IS A REFERENCE TO THE NONPENAL 1926 ACT AND
THE EXECUTIVE ORDER ADOPTED THEREUNDER IN 1938.  (FN6)  THESE MERELY
AUTHORIZE THE SECRETARY OF STATE TO IMPOSE AREA RESTRICTIONS INCIDENTAL
TO HIS GENERAL POWERS WITH RESPECT TO PASSPORTS.  ZEMEL V. RUSK, SUPRA.
THEY DO NOT PURPORT TO MAKE TRAVEL TO THE DESIGNATED AREA UNLAWFUL. 

THE PRESS RELEASE ISSUED BY THE DEPARTMENT OF STATE AT THE TIME
EXPRESSLY EXPLAINED THE ACTION AS BEING "IN VIEW OF THE U.S.
GOVERNMENT'S INABILITY  ...  TO EXTEND NORMAL PROTECTIVE SERVICES TO
AMERICANS VISITING CUBA."  IT EXPLAINED THAT THE ACTION WAS TAKEN IN
CONFORMITY WITH THE DEPARTMENT'S "NORMAL PRACTICE" OF LIMITING TRAVEL
TO COUNTRIES WITH WHICH WE DO NOT HAVE DIPLOMATIC RELATIONS.  (FN7)
THAT "NORMAL PRACTICE," AS WILL BE DISCUSSED, HAS NOT INCLUDED CRIMINAL
SANCTIONS.  IN SHORT, THE RELEVANT STATE DEPARTMENT PROMULGATIONS ARE
NOT ONLY DEVOID OF A SUGGESTION THAT TRAVEL TO CUBA WITHOUT A SPECIALLY
VALIDATED PASSPORT IS PROHIBITED, OR THAT SUCH TRAVEL WOULD BE CRIMINAL
CONDUCT, BUT THEY ALSO CONTAIN POSITIVE SUGGESTIONS THAT THE PURPOSE
AND EFFECT OF THE RESTRICTION WERE MERELY TO MAKE CLEAR THAT THE
PASSPORT WAS NOT TO BE REGARDED BY THE TRAVELER IN CUBA AS A VOUCHER ON
THE PROTECTIVE SERVICES NORMALLY AFFORDED BY THE STATE DEPARTMENT. 

THIS WAS IN KEEPING WITH THE UNBROKEN TENOR OF STATE DEPARTMENT
PRONOUNCEMENTS ON AREA RESTRICTIONS.  PRIOR TO ENACTMENT OF SEC. 215(B)
ON JUNE 27, 1952, AREA TRAVEL RESTRICTIONS WERE PROCLAIMED ON FIVE
OCCASIONS WHILE THE 1918 AND 1941 ACTS WERE IN EFFECT (1918-1921 AND
1941-1953).  (FN8)  THESE WERE THE PREDECESSORS OF SEC. 215(B), AND
THEY SIMILARLY SPECIFIED CRIMINAL SANCTIONS.  (FN9)  BUT IN EACH OF THE
FIVE INSTANCES, THE AREA RESTRICTIONS WERE DEVOID OF ANY SUGGESTION
THAT THEY WERE RELATED TO THE 1918 OR 1941 ACTS OR WERE INTENDED TO
INVOKE CRIMINAL PENALTIES IF THEY WERE DISREGARDED.  THEY WERE CAST
EXCLUSIVELY IN CIVIL TERMS, RELATING TO THE STATE DEPARTMENT'S "SAFE
PASSAGE" FUNCTIONS.  (FN10)  IN TWO OF THESE INSTANCES, THE DEPARTMENT
OF STATE SPECIFICALLY EMPHASIZED THE CIVIL, NONPROHIBITORY NATURE OF
THE RESTRICTIONS.  (FN11)  FOR EXAMPLE, IN 1952 THE STATE DEPARTMENT
ISSUED AREA RESTRICTIONS WITH RESPECT TO EASTERN EUROPEAN COUNTRIES,
CHINA, AND THE SOVIET UNION.  THE DEPARTMENT'S PRESS RELEASE EMPHASIZED
THAT THE "INVALIDATION" OF PASSPORTS FOR TRAVEL TO THOSE AREAS "IN NO
WAY FORBIDS AMERICAN TRAVEL TO THOSE AREAS."  (FN12) 

SINCE ENACTMENT OF SEC. 215(B), THE STATE DEPARTMENT HAS ANNOUNCED
AREA TRAVEL RESTRICTIONS UPON THREE OCCASIONS IN ADDITION TO CUBA. 
(FN13)  AGAIN, ALTHOUGH SEC. 215(B) WAS FULLY OPERATIVE, NONE OF THESE
DECLARATIONS PURPORTED TO BE ISSUED UNDER THAT SECTION OR REFERRED TO
CRIMINAL SANCTIONS.  EACH OF THEM, LIKE THE CUBA REGULATION, SOUNDED IN
TERMS OF WITHDRAWAL OF THE SAFE-PASSAGE SERVICES OF THE STATE
DEPARTMENT.  (FN14) 

IN 1957, THE SENATE FOREIGN RELATIONS COMMITTEE ASKED THE DEPARTMENT:
"WHAT DOES IT MEAN WHEN A PASSPORT IS STAMPED 'NOT VALID TO GO TO
COUNTRY X'?"  AFTER THREE MONTHS, THE DEPARTMENT SENT ITS OFFICIAL
REPLY.  IT STATED THAT THIS STAMPING OF A PASSPORT "MEANS THAT IF THE
BEARER ENTERS COUNTRY X HE CANNOT BE ASSURED OF THE PROTECTION OF THE
UNITED STATES  ...  BUT IT DOES NOT NECESSARILY MEAN THAT IF THE BEARER
TRAVELS TO COUNTRY X HE WILL BE VIOLATING THE CRIMINAL LAW."  (FN15)
SIMILARLY, IN HEARINGS BEFORE ANOTHER SENATE COMMITTEE, A DEPARTMENT
OFFICIAL EXPLAINED THAT WHEN A PASSPORT IS MARKED "INVALID" FOR TRAVEL
TO STATED COUNTRIES, THIS MEANS THAT "THIS GOVERNMENT IS NOT SPONSORING
THE ENTRY OF THE INDIVIDUAL INTO THOSE COUNTRIES AND DOES NOT GIVE HIM
PERMISSION TO GO IN THERE UNDER THE PROTECTION OF THIS GOVERNMENT." 
(FN16)    ALTHOUGH DEPARTMENT RECORDS SHOW THAT APPROXIMATELY 600
PERSONS HAVE VIOLATED AREA TRAVEL RESTRICTIONS SINCE THE ENACTMENT OF
SEC. 215(B), (FN17) THE PRESENT PROSECUTIONS ARE THE ONLY ATTEMPTS TO
CONVICT PERSONS FOR ALLEGED AREA TRANSGRESSIONS.  (FN18) 

UNTIL THESE INDICTMENTS, IN FACT, THE STATE DEPARTMENT HAD
CONSISTENTLY TAKEN THE POSITION THAT THERE WAS NO STATUTE WHICH IMPOSED
OR AUTHORIZED SUCH PROHIBITION.  IN THE 1957 HEARINGS, REFERRED TO
ABOVE, THE ACTING DIRECTOR OF THE BUREAU OF SECURITY AND CONSULAR
AFFAIRS, DEPARTMENT OF STATE, TESTIFIED THAT HE KNEW OF NO STATUTE
PROVIDING A PENALTY FOR GOING TO A COUNTRY COVERED BY AN AREA
RESTRICTION WITHOUT A PASSPORT (AS DISTINGUISHED FROM DEPARTING OR
ENTERING THE UNITED STATES).  (FN19)  THE GOVERNMENT, AS WELL AS
OTHERS, HAS REPEATEDLY CALLED TO THE ATTENTION OF THE CONGRESS THE NEED
FOR CONSIDERATION OF LEGISLATION SPECIFICALLY MAKING IT A CRIMINAL
OFFENSE FOR ANY CITIZEN TO TRAVEL TO A COUNTRY AS TO WHICH AN AREA
RESTRICTION IS IN EFFECT,  (FN20)  BUT NO SUCH LEGISLATION WAS
ENACTED.  (FN21) 

IN VIEW OF THIS OVERWHELMING EVIDENCE THAT SEC. 215(B) DOES NOT
AUTHORIZE AREA RESTRICTIONS, WE AGREE WITH THE DISTRICT COURT THAT THE
INDICTMENT HEREIN DOES NOT ALLEGE A CRIME.  IF THERE IS A GAP IN THE
LAW, THE RIGHT AND THE DUTY, IF ANY, TO FILL IT DO NOT DEVOLVE UPON THE
COURTS.  THE AREA TRAVEL RESTRICTION, REQUIRING SPECIAL VALIDATION OF
PASSPORTS FOR TRAVEL TO CUBA, WAS A VALID CIVIL REGULATION UNDER THE
1926 ACT.  ZEMEL V. RUSK, SUPRA.  BUT IT WAS NOT AND WAS NOT INTENDED
OR REPRESENTED TO BE AN EXERCISE OF AUTHORITY UNDER SEC. 215(B), WHICH
PROVIDES THE BASIS OF THE CRIMINAL CHARGE IN THIS CASE. 

CRIMES ARE NOT TO BE CREATED BY INFERENCE.  THEY MAY NOT BE CONSTRUED
NUNC PRO TUNC.  ORDINARILY, CITIZENS MAY NOT BE PUNISHED FOR ACTIONS
UNDERTAKEN IN GOOD FAITH RELIANCE UPON AUTHORITATIVE ASSURANCE THAT
PUNISHMENT WILL NOT ATTACH.  AS THIS COURT SAID IN RALEY V. OHIO, 360
U.S. 423, 438, WE MAY NOT CONVICT "A CITIZEN FOR EXERCISING A PRIVILEGE
WHICH THE STATE CLEARLY HAD TOLD HIM WAS AVAILABLE TO HIM."  AS RALEY
EMPHASIZED, CRIMINAL SANCTIONS ARE NOT SUPPORTABLE IF THEY ARE TO BE
IMPOSED UNDER "VAGUE AND UNDEFINED" COMMANDS (CITING LANZETTA V. NEW
JERSEY, 306 U.S. 451 (1939); OR IF THEY ARE "INEXPLICABLY
CONTRADICTORY" (CITING UNITED STATES V. CARDIFF, 344 U.S. 174 (1952));
AND CERTAINLY NOT IF THE GOVERNMENT'S CONDUCT CONSTITUTES "ACTIVE
MISLEADING" (CITING JOHNSON V. UNITED STATES, 318 U.S. 189, 197
(1943)). 

IN VIEW OF OUR DECISION THAT APPELLEES WERE CHARGED WITH CONSPIRACY
TO VIOLATE A NONEXISTENT CRIMINAL PROHIBITION, WE NEED NOT CONSIDER
OTHER ISSUES WHICH THE CASE PRESENTS. 

ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

FN1  IN RESPONSE TO A MOTION FOR A BILL OF PARTICULARS, THE
GOVERNMENT ALLEGED THAT THE INDIVIDUALS CONCERNED POSSESSED "UNEXPIRED
AND UNREVOKED UNITED STATES PASSPORTS WHICH  ...  HAD NOT BEEN
SPECIFICALLY VALIDATED BY THE SECRETARY OF STATE FOR TRAVEL TO CUBA." 

FN2  PROCLAMATION NO. 3004, 67 STAT. C31, 3 CFR 180 (1949-1953
COMP.).  THE CURRENT "NATIONAL EMERGENCY" WAS PROCLAIMED BY PRESIDENT
TRUMAN ON DEC. 16, 1950.  PROCLAMATION NO. 2914, 64 STAT. A454, 3 CFR
99 (1949-1953 COMP.). 

FN3  STATE DEPARTMENT PRESS RELEASE NO. 24, JAN. 16, 1961, 44 DEPT.
STATE BULL.  178.  THE FULL TEXT IS IN THE APPENDIX TO THIS OPINION. 

FN4  BUT CF. UNITED STATES V. HEALY, 376 U.S. 75, 83, N. 7 (1964). 

FN5  IT IS THE EXCEPTION RATHER THAN THE RULE IN OUR HISTORY TO
REQUIRE THAT CITIZENS ENGAGED IN FOREIGN TRAVEL SHOULD HAVE A
PASSPORT.  KENT V. DULLES, 357 U.S. 116, 121-123 (1958); JAFFE, THE
RIGHT TO TRAVEL:  THE PASSPORT PROBLEM, 35 FOREIGN AFFAIRS 17 (1956). 

FN6  THE "PUBLIC NOTICE" RECITES THAT "PURSUANT TO THE AUTHORITY
VESTED IN ME BY SECTIONS 124 AND 126 OF EXECUTIVE ORDER NO. 7856,
ISSUED ON MARCH 31, 1938 (3 FR 681, 687, 22 CFR 51.75 AND 51.77) UNDER
AUTHORITY OF  ...  THE ACT OF  ...  JULY 3, 1926  ...  ALL UNITED
STATES PASSPORTS ARE HEREBY DECLARED TO BE INVALID FOR TRAVEL TO OR IN
CUBA  ...  ."  DEPARTMENT OF STATE, PUBLIC NOTICE NO. 179, JAN. 16,
1961, 26 FED. REG. 492. 

FN7  STATE DEPARTMENT PRESS RELEASE NO. 24, JAN. 16, 1961, 44 DEPT.
STATE BULL.  178.  THE FULL TEXT IS IN THE APPENDIX TO THIS OPINION. 

FN8  THE 1918 ACT WAS IN EFFECT BY PRESIDENTIAL PROCLAMATION ONLY
BETWEEN AUGUST 8, 1918, AND MARCH 3, 1921.  (40 STAT. 1829 AND 41 STAT.
1359.)  THE 1941 ACT WAS IN EFFECT BY SUCCESSIVE PRESIDENTIAL
PROCLAMATIONS AND CONGRESSIONAL EXTENSIONS FROM NOVEMBER 14, 1941 (55
STAT. 1696), TO APRIL 1, 1953 (66 STAT. 57, 96, 137, 333), BY WHICH
DATE SEC.  215(B) WAS ALREADY IN EFFECT BY PRESIDENTIAL PROCLAMATION
NO. 3004, JAN. 17, 1953, 67 STAT. C31, 3 CFR 180 (1949-1953 COMP.). 

FN9  SEE P. 477, SUPRA. 

FN10  1.  RESTRICTION IN 1919 AS TO GERMANY (3 HACKWORTH, DIGEST OF
INTERNATIONAL LAW 530 (1942).  2. RESTRICTION IN 1950 AS TO BULGARIA
AND HUNGARY (22 DEPT. STATE BULL.  399).  3.  RESTRICTION IN 1951 AS TO
CZECHOSLOVAKIA (24 DEPT. STATE BULL.  932).  4.  RESTRICTION IN 1951 AS
TO HUNGARY (26 DEPT. STATE BULL.  7).  5.  RESTRICTION IN 1952 AS TO
EAST EUROPEAN COUNTRIES, CHINA, AND THE SOVIET UNION (26 DEPT. STATE
BULL.  736). 

FN11  THESE WERE THE 1919 GERMANY RESTRICTION AND THE 1952 EAST
EUROPE, SOVIET UNION, AND CHINA RESTRICTION.  SEE N. 10, SUPRA.  THE
TEXTS OF THE DEPARTMENT'S ANNOUNCEMENTS OF THESE RESTRICTIONS ARE IN
THE APPENDIX TO THIS OPINION. 

FN12  SEE THE APPENDIX TO THIS OPINION. 

FN13 1.  RESTRICTION IN 1955 AS TO ALBANIA, BULGARIA, CHINA, NORTH
KOREA, AND NORTH VIET NAM (33 DEPT. STATE BULL.  777).  2.  RESTRICTION
IN 1956 AS TO HUNGARY (34 DEPT. STATE BULL.  248).  3.  RESTRICTION IN
1956 AS TO EGYPT, ISRAEL, JORDAN, AND SYRIA (35 DEPT. STATE BULL.  756,
21 FED. REG. 8577). 

FN14  IN THE 1956 AREA RESTRICTION RELATING TO EGYPT, ISRAEL, JORDAN,
AND SYRIA, SUPRA, N. 13, AS WELL AS THE CUBA RESTRICTION, THE
DEPARTMENT EXPRESSLY RECITED THE 1926 ACT AS ITS BASIS.  IT DID NOT
MENTION SEC. 215(B).  21 FED. REG. 8577. 

FN15  HEARINGS BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS, ON
DEPARTMENT OF STATE PASSPORT POLICIES, 85TH CONG., 1ST SESS. (1957), P.
59. 

FN16  HEARINGS BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF
THE SENATE COMMITTEE ON THE JUDICIARY, ON THE RIGHT TO TRAVEL, 85TH
CONG., 1ST SESS., PART 2 (1957), P. 86; SEE ALSO ID., AT 62. 

FN17  THE GOVERNMENT CONCEDED THIS TO THE COURT BELOW.  SEE ALSO THE
DEPARTMENT'S TESTIMONY TO THE SAME EFFECT IN HEARINGS BEFORE THE
SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF THE INTERNAL SECURITY
ACT AND OTHER INTERNAL SECURITY LAWS, SENATE COMMITTEE ON THE
JUDICIARY, ON S. 3243, 89TH CONG., 2D SESS. (1966), P. 43.  THE CHIEF
OF THE SECURITY BRANCH OF THE LEGAL DIVISION OF THE STATE DEPARTMENT
TESTIFIED TO THE COURT BELOW THAT HE WAS UNAWARE OF ANY PROSECUTION FOR
VIOLATION OF AREA RESTRICTIONS UNDER THE PREDECESSORS OF SEC. 215(B). 

FN18  SEE ALSO TRAVIS V. UNITED STATES, NO. 67, POST, P. 491; WORTHY
V. UNITED STATES, 328 F.2D 386 (C.A. 5TH CIR., 1964). 

FN19  HEARINGS, N. 16, SUPRA, AT 91-95. 

FN20  SEE, E.G., PRESIDENT EISENHOWER'S REQUEST FOR LEGISLATION, H.R.
DOC. NO. 417, 85TH CONG., 2D SESS. (1958).  THE ADMINISTRATION'S BILL
WAS S. 4110, H.R. 13318.  IN 1957, THE COMMISSION ON GOVERNMENT
SECURITY, SPECIFICALLY ESTABLISHED BY CONGRESS TO STUDY TRAVEL AND
PASSPORT LEGISLATION, AMONG OTHER THINGS (PUBLIC LAW 304, 84TH CONG.,
1ST SESS., 69 STAT. 595 (1955)), RECOMMENDED THAT "TITLE 8, U.S.C.A.,
OF THE UNITED STATES TO TRAVEL TO ANY COUNTRY IN WHICH HIS PASSPORT IS
DECLARED TO BE INVALID."  REPORT (S. DOC. 64, 84TH CONG.), AT 475.  THE
NEXT YEAR, THE SPECIAL COMMITTEE TO STUDY PASSPORT PROCEDURES OF THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK PUBLISHED A REPORT
ENTITLED "FREEDOM TO TRAVEL."  ONE OF THE AUTHORS OF THIS REPORT WAS
THE HONORABLE ADRIAN S. FISHER, FORMER LEGAL ADVISOR TO THE DEPARTMENT
OF STATE.  THIS REPORT CONCLUDED, AT 70, AS TO CRIMINAL ENFORCEMENT OF
AREA RESTRICTIONS:

"THE COMMITTEE HAS NOT DISCOVERED ANY STATUTE WHICH CLEARLY PROVIDES
A PENALTY FOR VIOLATION OF AREA RESTRICTIONS, AND THIS SEEMS TO BE A
GLARING OMISSION IF THE UNITED STATES IS SERIOUSLY INTERESTED IN THE
ESTABLISHMENT AND ENFORCEMENT OF TRAVEL CONTROLS.  KNOWING VIOLATION OF
VALID RESTRICTIONS SHOULD CERTAINLY BE SUBJECT TO AN EFFECTIVE
SANCTION, WHICH IS NOT NOW THE CASE." 

FN21  THE MOST RECENT BILL, INTRODUCED BY THE DEPARTMENT AFTER TWO
YEARS OF STUDY, WAS H.R. 14895, 89TH CONG., 2D SESS. (1966).  SEE
HEARINGS BEFORE THE SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF
THE INTERNAL SECURITY ACT AND OTHER INTERNAL SECURITY LAWS, SENATE
COMMITTEE ON THE JUDICIARY, ON S. 3243, 89TH CONG., 2D SESS. (1966), P.
73.  SOME OF THE OTHER BILLS WHICH FAILED IN CONGRESS ARE DISCUSSED IN
THE OPINION OF THE COURT BELOW. 

  APPENDIX TO OPINION OF THE COURT. 

THE FOLLOWING THREE DEPARTMENT OF STATE STATEMENTS IN CONNECTION WITH
AREA RESTRICTIONS ARE REFERRED TO IN THE FOREGOING OPINION: 

(1)  STATE DEPARTMENT PRESS RELEASE NO. 24, JAN. 16, 1961, 44 DEPT.
STATE BULL.  178: 

"THE DEPARTMENT OF STATE ANNOUNCED ON JANUARY 16 THAT IN VIEW OF THE
U.S. GOVERNMENT'S INABILITY, FOLLOWING THE BREAK IN DIPLOMATIC
RELATIONS BETWEEN THE UNITED STATES AND CUBA, TO EXTEND NORMAL
PROTECTIVE SERVICES TO AMERICANS VISITING CUBA, U.S. CITIZENS DESIRING
TO GO TO CUBA MUST UNTIL FURTHER NOTICE OBTAIN PASSPORTS SPECIFICALLY
ENDORSED BY THE DEPARTMENT OF STATE FOR SUCH TRAVEL.  ALL OUTSTANDING
PASSPORTS EXCEPT THOSE OF U.S. CITIZENS REMAINING IN CUBA, ARE BEING
DECLARED INVALID FOR TRAVEL TO CUBA UNLESS SPECIFICALLY ENDORSED FOR
SUCH TRAVEL. 

"THE DEPARTMENT CONTEMPLATES THAT EXCEPTIONS TO THESE REGULATIONS
WILL BE GRANTED TO PERSONS WHOSE TRAVEL MAY BE REGARDED AS BEING IN THE
BEST INTERESTS OF THE UNITED STATES, SUCH AS NEWSMEN OR BUSINESSMEN
WITH PREVIOUSLY ESTABLISHED BUSINESS INTERESTS. 

"PERMANENT RESIDENT ALIENS CANNOT TRAVEL TO CUBA UNLESS SPECIAL
PERMISSION IS OBTAINED FOR THIS PURPOSE THROUGH THE U.S. IMMIGRATION
AND NATURALIZATION SERVICE. 

"FEDERAL REGULATIONS ARE BEING AMENDED TO PUT THESE REQUIREMENTS INTO
EFFECT. 

"THESE ACTIONS HAVE BEEN TAKEN IN CONFORMITY WITH THE DEPARTMENT'S
NORMAL PRACTICE OF LIMITING TRAVEL TO THOSE COUNTRIES WITH WHICH THE
UNITED STATES DOES NOT MAINTAIN DIPLOMATIC RELATIONS." 

(2)  STATE DEPARRMENT PRESS RELEASE NO. 341, MAY 1, 1952, 26 DEPT.
STATE BULL.  736: 

"THE DEPARTMENT OF STATE ANNOUNCED ON MAY 1 THAT IT WAS TAKING
ADDITIONAL STEPS TO WARN AMERICAN CITIZENS OF THE RISKS OF TRAVEL IN
IRON CURTAIN COUNTRIES BY STAMPING ALL PASSPORTS NOT VALID FOR TRAVEL
IN THOSE COUNTRIES UNLESS SPECIFICALLY ENDORSED BY THE DEPARTMENT OF
STATE FOR SUCH TRAVEL. 

"IN MAKING THIS ANNOUNCEMENT, THE DEPARTMENT EMPHASIZED THAT THIS
PROCEDURE IN NO WAY FORBIDS AMERICAN TRAVEL TO THOSE AREAS.  IT
CONTEMPLATES THAT AMERICAN CITIZENS WILL CONSULT THE DEPARTMENT OR THE
CONSULATES ABROAD TO ASCERTAIN THE DANGERS OF TRAVELING IN COUNTRIES
WHERE ACCEPTABLE STANDARDS OF PROTECTION DO NOT PREVAIL AND THAT, IF NO
OBJECTION IS PERCEIVED, THE TRAVEL MAY BE AUTHORIZED. 

"ALL NEW PASSPORTS WILL BE STAMPED AS FOLLOWS:  THIS PASSPORT IS NOT
VALID FOR TRAVEL TO ALBANIA, BULGARIA, CHINA, CZECHOSLOVAKIA, HUNGARY,
POLAND, RUMANIA OR THE UNION OF SOVIET SOCIALIST REPUBLICS UNLESS
SPECIFICALLY ENDORSED UNDER AUTHORITY OF THE DEPARTMENT OF STATE AS
BEING VALID FOR SUCH TRAVEL. 

"ALL OUTSTANDING PASSPORTS, WHICH ARE EQUALLY SUBJECT TO THE
RESTRICTION, WILL BE SO ENDORSED AS OCCASION PERMITS." 

"FREEDOM TO TRAVEL," A 1958 REPORT OF THE SPECIAL COMMITTEE TO STUDY
PASSPORT PROCEDURES OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW
YORK, CHARACTERIZED THIS AS "AN HONEST ADMISSION OF THE LACK OF
STATUTORY POWER TO ENFORCE AN AREA RESTRICTION OF THIS NATURE."  AT
70.  THE DEPARTMENT GAVE A PRACTICAL CONSTRUCTION OF THIS AREA
RESTRICTION IN 1954 WHEN IF INFORMED TWO NEWSMEN DESIRING TO TRAVEL TO
BULGARIA THAT THEY COULD GO THERE WITHOUT A PASSPORT AND "USE, AS A
TRAVEL DOCUMENT  ... AN AFFIDAVIT IN LIEU OF A PASSPORT," AND THAT, IF
BULGARIA WOULD PERMIT THEM ENTRY, "THE DEPARTMENT ...  WOULD HOLD NO
OBJECTION."  HEARINGS ON DEPARTMENT OF STATE PASSPORT POLICIES BEFORE
THE SENATE COMMITTEE ON FOREIGN RELATIONS, 85TH CONG., 1ST SESS.
(1957), P. 65. 

(3)  3 HACKWORTH, DIGEST OF INTERNATIONAL LAW 530 (1942)(1919 GERMANY
RESTRICTION): 

"THE DEPARTMENT IS NOT NOW ISSUING OR AUTHORIZING ISSUANCE OR
AMENDMENT OF PASSPORTS FOR GERMANY.  HOWEVER, THE DEPARTMENT INTERPOSES
NO OBJECTION TO THE ENTRY INTO GERMANY OF AMERICANS WHO HAVE IMPORTANT
AND URGENT BUSINESS TO TRANSACT THERE.  IN VIEW OF THE PRESENT
SITUATION, SUCH PERSONS SHOULD UNDERSTAND THAT THEY GO UPON THEIR OWN
RESPONSIBILITY AND AT THEIR OWN RISK.  THEY CANNOT BE GUARANTEED THE
SAME PROTECTION WHICH THEY MIGHT EXPECT UNDER NORMAL CONDITIONS." 
..END :
















TRAVIS V. UNITED STATES 385 U.S. 491 


NO. 67.  ARGUED NOVEMBER 15-16, 1966.  - DECIDED JANUARY 10, 1967.  -
353 F.2D 506, REVERSED. 


PETITIONER WAS INDICTED, TRIED, AND FOUND GUILTY OF VIOLATING SEC.
215(B) OF THE IMMIGRATION AND NATIONALITY ACT FOR DEPARTING FROM THE
UNITED STATES FOR CUBA, VIA MEXICO, WITHOUT A VALID PASSPORT.   THE
PARTIES STIPULATED THAT SHE HAD NO VALID PASSPORT "SPECIFICALLY
ENDORSED" FOR TRAVEL TO CUBA.  THE COURT OF APPEALS AFFIRMED.  HELD:
BECAUSE THERE WAS NO ALLEGATION OR PROOF THAT PETITIONER DID NOT BEAR A
VALID PASSPORT, THE CONVICTION MUST BE REVERSED.  UNITED STATES V.
LAUB, ANTE, P. 475.  PP. 491-492. 

TRAVIS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 176, UNITED STATES V. LAUB, ANTE, P.
475.  PETITIONER WAS TRIED ON A STIPULATION OF FACTS, UNDER AN
INDICTMENT WHICH ALLEGED THAT ON TWO OCCASIONS SHE "DID UNLAWFULLY,
KNOWINGLY AND WILLFULLY DEPART FROM THE UNITED STATES WITHOUT BEARING A
VALID PASSPORT, FOR THE REPUBLIC OF CUBA, VIA MEXICO, THE REPUBLIC OF
CUBA BEING A PLACE OUTSIDE THE UNITED STATES FOR WHICH A VALID PASSPORT
IS REQUIRED" IN VIOLATION OF SEC. 215(B) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 190, 8 U.S.C. SEC. 1185(B).  THE
PARTIES STIPULATED THAT "AT NO TIME PERTINENT OR MATERIAL HEREIN DID
DEFENDANT, HELEN MAXINE LEVI TRAVIS, BEAR A VALID UNITED STATES
PASSPORT SPECIFICALLY ENDORSED FOR TRAVEL TO THE REPUBLIC OF CUBA  ...
."  THIS STIPULATION IS ALL THAT THE RECORD IN THIS CASE REVEALS AS TO
PETITIONER'S POSSESSION OF A VALID PASSPORT.  PETITIONER WAS CONVICTED,
AND THE COURT OF APPEALS AFFIRMED.  WE GRANTED CERTIORARI IN LIGHT OF
THE IMPORTANT QUESTIONS RAISED BY PETITIONER, AND THE APPARENT CONFLICT
WITH THE DECISION OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW
YORK IN THE LAUB CASE, SUPRA, WHICH WE AFFIRM TODAY. 

AS OUR DECISION IN LAUB DETERMINES, IF PETITIONER IN FACT HAD A VALID
PASSPORT, AND THE GRAVAMEN OF THE GOVERNMENT'S ACCUSATION UNDER SEC.
215(B) WERE THAT HER PASSPORT WAS NOT VALID FOR TRAVEL TO CUBA, THIS
CONVICTION COULD NOT STAND.  WE HAVE TODAY HELD THAT AREA RESTRICTIONS
UPON THE USE OF AN OTHERWISE VALID PASSPORT ARE NOT CRIMINALLY
ENFORCEABLE UNDER SEC. 215(B).  BECAUSE THE GOVERNMENT DID NOT ALLEGE,
AND INTRODUCED NO PROOF, THAT PETITIONER DID NOT BEAR A VALID PASSPORT
ON EACH OF THE OCCASIONS ON WHICH SHE DEPARTED FOR CUBA, VIA MEXICO,
OUR DECISION IN LAUB, SUPRA, REQUIRES THAT HER CONVICTION BE REVERSED. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 
..END :























TIME INC. V. HILL 385 U.S. 374 


NO. 22.  ARGUED APRIL 27, 1966.  - REARGUED OCTOBER 18-19, 1966.  -
DECIDED JANUARY 9, 1967.  - 15 N.Y.2D 986, 207 N.E.2D 604, REVERSED AND
REMANDED. 


APPELLEE, HILL, AND HIS FAMILY IN 1952 WERE HELD HOSTAGE IN THEIR HOME
BY SOME ESCAPED CONVICTS AND WERE ULTIMATELY RELEASED UNHARMED WITHOUT
ANY VIOLENCE HAVING OCCURRED.  THEY LATER MOVED AWAY AND APPELLEE
DISCOURAGED FURTHER PUBLICITY EFFORTS ABOUT THE INCIDENT, WHICH HAD
CAUSED EXTENSIVE INVOLUNTARY NOTORIETY.  A NOVEL ABOUT A HOSTAGE
INCIDENT BUT DEPICTING CONSIDERABLE VIOLENCE LATER APPEARED, WAS
SUBSEQUENTLY MADE INTO A PLAY, THESE PORTRAYALS HAVING BEEN SHAPED BY
SEVERAL INCIDENTS.  APPELLANT'S MAGAZINE, LIFE, PUBLISHED AN ACCOUNT OF
THE PLAY, RELATING IT TO THE HILL INCIDENT, DESCRIBING THE PLAY AS A RE
ENACTMENT, AND USING AS ILLUSTRATIONS PHOTOGRAPHS OF SCENES STAGED IN
THE FORMER HILL HOME.  ALLEGING THAT THE LIFE ARTICLE GAVE THE
KNOWINGLY FALSE IMPRESSION THAT THE PLAY DEPICTED THE HILL INCIDENT,
APPELLEE SUED FOR DAMAGES UNDER A NEW YORK STATUTE PROVIDING A CAUSE OF
ACTION TO A PERSON WHOSE NAME OR PICTURE IS USED BY ANOTHER WITHOUT
CONSENT FOR PURPOSES OF TRADE OR ADVERTISING.  APPELLANT MAINTAINED
THAT THE ARTICLE CONCERNED A SUBJECT OF GENERAL INTEREST AND WAS
PUBLISHED IN GOOD FAITH.  THE TRIAL COURT INSTRUCTED THE JURY THAT
LIABILITY UNDER THE STATUTE DEPENDED UPON A FINDING THAT THE LIFE
ARTICLE WAS PUBLISHED, NOT TO DISSEMINATE NEWS, BUT AS A FICTIONALIZED
VERSION OF THE HILL INCIDENT AND FOR THE PURPOSE OF ADVERTISING THE
PLAY OR INCREASING THE MAGAZINE'S CIRCULATION.  THE COURT ALSO
INSTRUCTED THE JURY THAT PUNITIVE DAMAGES WERE JUSTIFIED IF THE JURY
FOUND THAT THE APPELLANT FALSELY CONNECTED HILL WITH THE PLAY KNOWINGLY
OR THROUGH FAILURE TO MAKE A REASONABLE INVESTIGATION AND THAT PERSONAL
MALICE NEED NOT BE FOUND IF THERE WAS RECKLESS OR WANTON DISREGARD OF
HILL'S RIGHTS.  THE JURY AWARDED COMPENSATORY AND PUNITIVE DAMAGES. 
THOUGH LIABILITY WAS SUSTAINED ON APPEAL, THE APPELLATE DIVISION
ORDERED A NEW TRIAL AS TO DAMAGES, AT WHICH ONLY COMPENSATORY DAMAGES
WERE AWARDED, AND THE COURT OF APPEALS AFFIRMED.  THE NEW YORK COURTS
HAVE LIMITED THE REACH OF THE STATUTE AS APPLIED TO REPORTS OF
NEWSWORTHY PERSONS OR EVENTS, AND HAVE MADE IT CLEAR SINCE REARGUMENT
HERE THAT TRUTH IS A COMPLETE DEFENSE.  (SPAHN V. JULIAN MESSNER, INC.,
18 N.Y.2D 324, 221 N.E.2D 543 (1966)).  HOWEVER, THE NEW YORK COURTS
ALLOW RECOVERY UNDER THE STATUTE WHEN SUCH REPORTS ARE "FICTITIOUS." 
HELD: 

1.  CONSTITUTIONAL PROTECTIONS FOR FREE EXPRESSION PRECLUDE APPLYING
NEW YORK'S STATUTE TO REDRESS FALSE REPORTS OF NEWSWORTHY MATTERS
ABSENT PROOF THAT THE PUBLISHER KNEW OF THEIR FALSITY OR ACTED IN
RECKLESS DISREGARD OF THE TRUTH.  CF. NEW YORK TIMES CO. V. SULLIVAN,
376 U.S. 254.  PP. 380-391. 

(A)  ERRONEOUS STATEMENTS ABOUT A MATTER OF PUBLIC INTEREST, LIKE THE
OPENING OF A NEW PLAY LINKED TO AN ACTUAL INCIDENT, WHICH WAS THE
SUBJECT OF THE LIFE ARTICLE, ARE INEVITABLE AND IF INNOCENT OR MERELY
NEGLIGENT MUST BE PROTECTED IF "FREEDOMS OF EXPRESSION ARE TO HAVE THE
'BREATHING SPACE' THAT THEY 'NEED TO SURVIVE  ...  .'"  ID., AT 271
272.  PP. 388-389. 

(B)  BUT CONSTITUTIONAL GUARANTEES OF FREE EXPRESSION CAN TOLERATE
SANCTIONS AGAINST CALCULATED FALSEHOOD WITHOUT IMPAIRMENT OF THEIR
ESSENTIAL FUNCTION.  P. 389. 

2.  SINCE THE EVIDENCE IN THIS CASE WOULD SUPPORT A JURY FINDING
EITHER (1) THAT APPELLANT'S INACCURATE PORTRAYAL OF THE HILL INCIDENT
WAS INNOCENT OR MERELY NEGLIGENT OR (2) THAT IT WAS RECKLESSLY UNTRUE
OR KNOWINGLY FALSE, THE TRIAL COURT'S FAILURE PROPERLY TO INSTRUCT THE
JURY THAT A VERDICT OF LIABILITY COULD BE PREDICATED ONLY ON A FINDING
OF KNOWING OR RECKLESS FALSITY IN THE PUBLICATION OF THE LIFE ARTICLE
CONSTITUTED REVERSIBLE ERROR.  PP. 391-397. 

3.  A DECLARATION WOULD BE UNWARRANTED THAT THE NEW YORK STATUTE IS
UNCONSTITUTIONAL ON ITS FACE EVEN IF CONSTRUED BY THE NEW YORK COURTS
TO IMPOSE LIABILITY WITHOUT PROOF OF KNOWING OR RECKLESS FALSITY
BECAUSE THE NEW YORK COURTS HAVE BEEN ASSIDUOUS TO CONSTRUE THE STATUTE
TO AVOID INVASION OF FREEDOM OF SPEECH AND OF THE PRESS.  P. 397. 

TIME, INC. V. HILL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER APPELLANT, PUBLISHER OF LIFE
MAGAZINE, WAS DENIED CONSTITUTIONAL PROTECTIONS OF SPEECH AND PRESS BY
THE APPLICATION BY THE NEW YORK COURTS OF SECS 50-51 OF THE NEW YORK
CIVIL RIGHTS LAW  (FN1)  TO AWARD APPELLEE DAMAGES ON ALLEGATIONS THAT
LIFE FALSELY REPORTED THAT A NEW PLAY PORTRAYED AN EXPERIENCE SUFFERED
BY APPELLEE AND HIS FAMILY. 

THE ARTICLE APPEARED IN LIFE IN FEBRUARY, 1955.  IT WAS ENTITLED
"TRUE CRIME INSPIRES TENSE PLAY," WITH THE SUBTITLE, "THE ORDEAL OF A
FAMILY TRAPPED BY CONVICTS GIVES BROADWAY A NEW THRILLER, 'THE
DESPERATE HOURS.'"  THE TEXT OF THE ARTICLE READS AS FOLLOWS: 

"THREE YEARS AGO AMERICANS ALL OVER THE COUNTRY READ ABOUT THE
DESPERATE ORDEAL OF THE JAMES HILL FAMILY, WHO WERE HELD PRISONERS IN
THEIR HOME OUTSIDE PHILADELPHIA BY THREE ESCAPED CONVICTS.  LATER THEY
READ ABOUT IT IN JOSEPH HAYES'S NOVEL, THE DESPERATE HOURS, INSPIRED BY
THE FAMILY'S EXPERIENCE.  NOW THEY CAN SEE THE STORY RE-ENACTED IN
HAYES'S BROADWAY PLAY BASED ON THE BOOK, AND NEXT YEAR WILL SEE IT IN
HIS MOVIE, WHICH HAS BEEN FILMED BUT IS BEING HELD UP UNTIL THE PLAY
HAS A CHANCE TO PAY OFF. 

"THE PLAY, DIRECTED BY ROBERT MONTGOMERY AND EXPERTLY ACTED, IS A
HEART-STOPPING ACCOUNT OF HOW A FAMILY ROSE TO HEROISM IN A CRISIS. 
LIFE PHOTOGRAPHED THE PLAY DURING ITS PHILADELPHIA TRYOUT, TRANSPORTED
SOME OF THE ACTORS TO THE ACTUAL HOUSE WHERE THE HILLS WERE BESIEGED. 
ON THE NEXT PAGE SCENES FROM THE PLAY ARE RE-ENACTED ON THE SITE OF THE
CRIME." 

THE PICTURES ON THE ENSUING TWO PAGES INCLUDED AN ENACTMENT OF THE
SON BEING "ROUGHED UP" BY ONE OF THE CONVICTS, ENTITLED "BRUTISH
CONVICT," A PICTURE OF THE DAUGHTER BITING THE HAND OF A CONVICT TO
MAKE HIM DROP A GUN, ENTITLED "DARING DAUGHTER," AND ONE OF THE FATHER
THROWING HIS GUN THROUGH THE DOOR AFTER A "BRAVE TRY" TO SAVE HIS
FAMILY IS FOILED. 

THE JAMES HILL REFERRED TO IN THE ARTICLE IS THE APPELLEE.  HE AND
HIS WIFE AND FIVE CHILDREN INVOLUNTARILY BECAME THE SUBJECTS OF A FRONT
PAGE NEWS STORY AFTER BEING HELD HOSTAGE BY THREE ESCAPED CONVICTS IN
THEIR SUBURBAN, WHITEMARSH, PENNSYLVANIA, HOME FOR 19 HOURS ON
SEPTEMBER 11-12, 1952.  THE FAMILY WAS RELEASED UNHARMED.  IN AN
INTERVIEW WITH NEWSMEN AFTER THE CONVICTS DEPARTED, APPELLEE STRESSED
THAT THE CONVICTS HAD TREATED THE FAMILY COURTEOUSLY, HAD NOT MOLESTED
THEM, AND HAD NOT BEEN AT ALL VIOLENT.  THE CONVICTS WERE THEREAFTER
APPREHENDED IN A WIDELY PUBLICIZED ENCOUNTER WITH THE POLICE WHICH
RESULTED IN THE KILLING OF TWO OF THE CONVICTS.  SHORTLY THEREAFTER THE
FAMILY MOVED TO CONNECTICUT.  THE APPELLEE DISCOURAGED ALL EFFORTS TO
KEEP THEM IN THE PUBLIC SPOTLIGHT THROUGH MAGAZINE ARTICLES OR
APPEARANCES ON TELEVISION. 

IN THE SPRING OF 1953, JOSEPH HAYES' NOVEL, THE DESPERATE HOURS, WAS
PUBLISHED.  THE STORY DEPICTED THE EXPERIENCE OF A FAMILY OF FOUR HELD
HOSTAGE BY THREE ESCAPED CONVICTS IN THE FAMILY'S SUBURBAN HOME.  BUT,
UNLIKE HILL'S EXPERIENCE, THE FAMILY OF THE STORY SUFFER VIOLENCE AT
THE HANDS OF THE CONVICTS; THE FATHER AND SON ARE BEATEN AND THE
DAUGHTER SUBJECTED TO A VERBAL SEXUAL INSULT. 

THE BOOK WAS MADE INTO A PLAY, ALSO ENTITLED THE DESPERATE HOURS, AND
IT IS LIFE'S ARTICLE ABOUT THE PLAY WHICH IS THE SUBJECT OF APPELLEE'S
ACTION.  THE COMPLAINT SOUGHT DAMAGES UNDER SECS 50-51 ON ALLEGATIONS
THAT THE LIFE ARTICLE WAS INTENDED TO, AND DID, GIVE THE IMPRESSION
THAT THE PLAY MIRRORED THE HILL FAMILY'S EXPERIENCE, WHICH, TO THE
KNOWLEDGE OF DEFENDANT "  ...  WAS FALSE AND UNTRUE."  APPELLANT'S
DEFENSE WAS THAT THE ARTICLE WAS "A SUBJECT OF LEGITIMATE NEWS
INTEREST," "A SUBJECT OF GENERAL INTEREST AND OF VALUE AND CONCERN TO
THE PUBLIC" AT THE TIME OF PUBLICATION, AND THAT IT WAS "PUBLISHED IN
GOOD FAITH WITHOUT ANY MALICE WHATSOEVER  ...  ."  A MOTION TO DISMISS
THE COMPLAINT FOR SUBSTANTIALLY THESE REASONS WAS MADE AT THE CLOSE OF
THE CASE AND WAS DENIED BY THE TRIAL JUDGE ON THE GROUND THAT THE
PROOFS PRESENTED A JURY QUESTION AS TO THE TRUTH OF THE ARTICLE. 

THE JURY AWARDED APPELLEE $50,000 COMPENSATORY AND $25,000 PUNITIVE
DAMAGES.  ON APPEAL THE APPELLATE DIVISION OF THE SUPREME COURT ORDERED
A NEW TRIAL AS TO DAMAGES BUT SUSTAINED THE JURY VERDICT OF LIABILITY. 
THE COURT SAID AS TO LIABILITY: 

"ALTHOUGH THE PLAY WAS FICTIONALIZED, LIFE'S ARTICLE PORTRAYED IT AS
A RE-ENACTMENT OF THE HILLS' EXPERIENCE.  IT IS AN INESCAPABLE
CONCLUSION THAT THIS WAS DONE TO ADVERTISE AND ATTRACT FURTHER
ATTENTION TO THE PLAY, AND TO INCREASE PRESENT AND FUTURE MAGAZINE
CIRCULATION AS WELL.  IT IS EVIDENT THAT THE ARTICLE CANNOT BE
CHARACTERIZED AS A MERE DISSEMINATION OF NEWS, NOR EVEN AN EFFORT TO
SUPPLY LEGITIMATE NEWSWORTHY INFORMATION IN WHICH THE PUBLIC HAD, OR
MIGHT HAVE A PROPER INTEREST."  18 APP. DIV. 2D 485, 489, 240 N.Y.S.2D
286, 290. 

AT THE NEW TRIAL ON DAMAGES, A JURY WAS WAIVED AND THE COURT AWARDED
$30,000 COMPENSATORY DAMAGES WITHOUT PUNITIVE DAMAGES.  (FN2) 

THE NEW YORK COURT OF APPEALS AFFIRMED THE APPELLATE DIVISION "ON THE
MAJORITY AND CONCURRING OPINIONS AT THE APPELLATE DIVISION," TWO JUDGES
DISSENTING.  15 N.Y.2D 986, 207 N.E.2D 604.  WE NOTED PROBABLE
JURISDICTION OF THE APPEAL TO CONSIDER THE IMPORTANT CONSTITUTIONAL
QUESTIONS OF FREEDOM OF SPEECH AND PRESS INVOLVED.  382 U.S. 936. 
AFTER ARGUMENT LAST TERM, THE CASE WAS RESTORED TO THE DOCKET FOR
REARGUMENT, 384 U.S. 995.  WE REVERSE AND REMAND THE CASE TO THE COURT
OF APPEALS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

I. 

SINCE THE REARGUMENT, WE HAVE HAD THE ADVANTAGE OF AN OPINION OF THE
COURT OF APPEALS OF NEW YORK WHICH HAS MATERIALLY AIDED US IN OUR
UNDERSTANDING OF THAT COURT'S CONSTRUCTION OF THE STATUTE.  IT IS THE
OPINION OF JUDGE KEATING FOR THE COURT IN SPAHN V. JULIAN MESSNER,
INC., 18 N.Y.2D 324, 221 N.E.2D 543 (1966).  THE STATUTE WAS ENACTED IN
1903 FOLLOWING THE DECISION OF THE COURT OF APPEALS IN 1902 IN ROBERSON
V. ROCHESTER FOLDING BOX CO., 171 N.Y. 538, 64 N.E. 442.  ROBERSON WAS
AN ACTION AGAINST DEFENDANTS FOR ADORNING THEIR FLOUR BAGS WITH
PLAINTIFF'S PICTURE WITHOUT HER CONSENT.  IT WAS GROUNDED UPON AN
ALLEGED INVASION OF A "RIGHT OF PRIVACY," DEFINED BY THE COURT OF
APPEALS TO BE "THE CLAIM THAT A MAN HAS THE RIGHT TO PASS THROUGH THIS
WORLD, IF HE WILLS, WITHOUT HAVING HIS PICTURE PUBLISHED  ...  OR HIS
ECCENTRICITIES COMMENTED UPON EITHER IN HANDBILLS, CIRCULARS,
CATALOGUES, PERIODICALS OR NEWSPAPERS  ...  ."  171 N.Y., AT 544, 64
N.E., AT 443.  THE COURT OF APPEALS TRACED THE THEORY TO THE CELEBRATED
ARTICLE OF WARREN AND BRANDEIS, ENTITLED THE RIGHT TO PRIVACY,
PUBLISHED IN 1890.  4 HARV. L. REV. 193.  (FN3)  THE COURT OF APPEALS,
HOWEVER, DENIED THE EXISTENCE OF SUCH A RIGHT AT COMMON LAW BUT
OBSERVED THAT "THE LEGISLATIVE BODY COULD VERY WELL INTERFERE AND
ARBITRARILY PROVIDE THAT NO ONE SHOULD BE PERMITTED FOR HIS OWN SELFISH
PURPOSE TO USE THE PICTURE OR THE NAME OF ANOTHER FOR ADVERTISING
PURPOSES WITHOUT HIS CONSENT."  171 N.Y., AT 545, 64 N.E., AT 443.  THE
LEGISLATURE ENACTED SECS 50-51 IN RESPONSE TO THAT OBSERVATION. 

ALTHOUGH "RIGHT OF PRIVACY" IS THE CAPTION OF SECS 50-51, THE TERM
NOWHERE APPEARS IN THE TEXT OF THE STATUTE ITSELF.  THE TEXT OF THE
STATUTE APPEARS TO PROSCRIBE ONLY CONDUCT OF THE KIND INVOLVED IN
ROBERSON, THAT IS, THE APPROPRIATION AND USE IN ADVERTISING OR TO
PROMOTE THE SALE OF GOODS, OF ANOTHER'S NAME, PORTRAIT OR PICTURE
WITHOUT HIS CONSENT.  (FN4)  AN APPLICATION OF THAT LIMITED SCOPE WOULD
PRESENT DIFFERENT QUESTIONS OF VIOLATION OF THE CONSTITUTIONAL
PROTECTIONS FOR SPEECH AND PRESS.  COMPARE VALENTINE V. CHRESTENSEN,
316 U.S. 52, WITH NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 265
266. 

THE NEW YORK COURTS HAVE, HOWEVER, CONSTRUED THE STATUTE TO OPERATE
MUCH MORE BROADLY.  IN SPAHN THE COURT OF APPEALS STATED THAT "OVER THE
YEARS SINCE THE STATUTE'S ENACTMENT IN 1903, ITS SOCIAL DESIRABILITY
AND REMEDIAL NATURE HAVE LED TO ITS BEING GIVEN A LIBERAL CONSTRUCTION
CONSONANT WITH ITS OVER-ALL PURPOSE  ...  ."  18 N.Y.2D, AT 327, 221
N.E.2D, AT 544.  SPECIFICALLY, IT HAS BEEN HELD IN SOME CIRCUMSTANCES
TO AUTHORIZE A REMEDY AGAINST THE PRESS AND OTHER COMMUNICATIONS MEDIA
WHICH PUBLISH THE NAMES, PICTURES, OR PORTRAITS OF PEOPLE WITHOUT THEIR
CONSENT.  REFLECTING THE FACT, HOWEVER, THAT SUCH APPLICATIONS MAY
RAISE SERIOUS QUESTIONS OF CONFLICT WITH THE CONSTITUTIONAL PROTECTIONS
FOR SPEECH AND PRESS, DECISIONS UNDER THE STATUTE HAVE TENDED TO LIMIT
THE STATUTE'S APPLICATION.  (FN5)  "EVER MINDFUL THAT THE WRITTEN WORD
OR PICTURE IS INVOLVED, COURTS HAVE ENGRAFTED EXCEPTIONS AND
RESTRICTIONS ONTO THE STATUTE TO AVOID ANY CONFLICT WITH THE FREE
DISSEMINATION OF THOUGHTS, IDEAS, NEWSWORTHY EVENTS, AND MATTERS OF
PUBLIC INTEREST."  ID., 18 N.Y.2D, AT 328, 221 N.E.2D, AT 544-545. 

IN THE LIGHT OF QUESTIONS THAT COUNSEL WERE ASKED TO ARGUE ON
REARGUMENT,  (FN6)  IT IS PARTICULARLY RELEVANT THAT THE COURT OF
APPEALS MADE CRYSTAL CLEAR IN THE SPAHN OPINION THAT TRUTH IS A
COMPLETE DEFENSE IN ACTIONS UNDER THE STATUTE BASED UPON REPORTS OF
NEWSWORTHY PEOPLE OR EVENTS.  THE OPINION STATES:  "THE FACTUAL
REPORTING OF NEWSWORTHY PERSONS AND EVENTS IS IN THE PUBLIC INTEREST
AND IS PROTECTED."  18 N.Y.2D, AT 328, 221 N.E.2D, AT 545.  (FN7)
CONSTITUTIONAL QUESTIONS WHICH MIGHT ARISE IF TRUTH WERE NOT A DEFENSE
ARE THEREFORE OF NO CONCERN.  CF. GARRISON V. LOUISIANA, 379 U.S. 64,
72-75. 

BUT ALTHOUGH THE NEW YORK STATUTE AFFORDS "LITTLE PROTECTION" TO THE
"PRIVACY" OF A NEWSWORTHY PERSON, "WHETHER HE BE SUCH BY CHOICE OR
INVOLUNTARILY"  (FN8)  THE STATUTE GIVES HIM A RIGHT OF ACTION WHEN HIS
NAME, PICTURE, OR PORTRAIT IS THE SUBJECT OF A "FICTITIOUS" REPORT OR
ARTICLE.  (FN9)  SPAHN POINTS UP THE DISTINCTION.  SPAHN WAS AN ACTION
UNDER THE STATUTE BROUGHT BY THE WELL-KNOWN PROFESSIONAL BASEBALL
PITCHER, WARREN SPAHN.  HE SOUGHT AN INJUNCTION AND DAMAGES AGAINST THE
UNAUTHORIZED PUBLICATION OF WHAT PURPORTED TO BE A BIOGRAPHY OF HIS
LIFE.  THE TRIAL JUDGE HAD FOUND THAT "THE RECORD UNEQUIVOCALLY
ESTABLISHES THAT THE BOOK PUBLICIZES AREAS OF WARREN SPAHN'S PERSONAL
AND PRIVATE LIFE, ALBEIT INACCURATE AND DISTORTED, AND CONSISTS OF A
HOST, A PREPONDERANT PERCENTAGE, OF FACTUAL ERRORS, DISTORTIONS AND
FANCIFUL PASSAGES  ...  ."  43 MISC. 2D 219, 232, 250 N.Y.S.2D 529,
542.  THE COURT OF APPEALS SUSTAINED THE HOLDING THAT IN THESE
CIRCUMSTANCES THE PUBLICATION WAS PROSCRIBED BY SEC 51 OF THE CIVIL
RIGHTS LAW AND WAS NOT WITHIN THE EXCEPTIONS AND RESTRICTIONS FOR
NEWSWORTHY EVENTS ENGRAFTED ONTO THE STATUTE.  THE COURT OF APPEALS
SAID: 

"BUT IT IS ERRONEOUS TO CONFUSE PRIVACY WITH 'PERSONALITY' OR TO
ASSUME THAT PRIVACY, THOUGH LOST FOR A CERTAIN TIME OR IN A CERTAIN
CONTEXT, GOES FOREVER UNPROTECTED  ...  .  THUS IT MAY BE APPROPRIATE
TO SAY THAT THE PLAINTIFF HERE, WARREN SPAHN, IS A PUBLIC PERSONALITY
AND THAT, INSOFAR AS HIS PROFESSIONAL CAREER IS INVOLVED, HE IS
SUBSTANTIALLY WITHOUT A RIGHT TO PRIVACY.  THAT IS NOT TO SAY, HOWEVER,
THAT HIS 'PERSONALITY' MAY BE FICTIONALIZED AND THAT, AS FICTIONALIZED,
IT MAY BE EXPLOITED FOR THE DEFENDANTS' COMMERCIAL BENEFIT THROUGH THE
MEDIUM OF AN UNAUTHORIZED BIOGRAPHY."  SPAHN, SUPRA, AT 328, 221
N.E.2D, AT 545. 

AS THE INSTANT CASE WENT TO THE JURY, APPELLEE, TOO, WAS REGARDED TO
BE A NEWSWORTHY PERSON "SUBSTANTIALLY WITHOUT A RIGHT TO PRIVACY"
INSOFAR AS HIS HOSTAGE EXPERIENCE WAS INVOLVED, BUT TO BE ENTITLED TO
HIS ACTION INSOFAR AS THAT EXPERIENCE WAS "FICTIONALIZED" AND
"EXPLOITED FOR THE DEFENDANTS' COMMERCIAL BENEFIT." 
"FICTIONALIZATION," THE SPAHN OPINION STATES, "IS THE HEART OF THE
CASES IN POINT."  18 N.Y.2D, AT 328, 221 N.E.2D, AT 545. 

THE OPINION GOES ON TO SAY THAT THE "ESTABLISHMENT OF MINOR ERRORS IN
AN OTHERWISE ACCURATE" REPORT DOES NOT PROVE "FICTIONALIZATION." 
MATERIAL AND SUBSTANTIAL FALSIFICATION IS THE TEST.  HOWEVER, IT IS NOT
CLEAR WHETHER PROOF OF KNOWLEDGE OF THE FALSITY OR THAT THE ARTICLE WAS
PREPARED WITH RECKLESS DISREGARD FOR THE TRUTH IS ALSO REQUIRED.  IN
NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, WE HELD THAT THE
CONSTITUTION DELIMITS A STATE'S POWER TO AWARD DAMAGES FOR LIBEL IN
ACTIONS BROUGHT BY PUBLIC OFFICIALS AGAINST CRITICS OF THEIR OFFICIAL
CONDUCT.  FACTUAL ERROR, CONTENT DEFAMATORY OF OFFICIAL REPUTATION, OR
BOTH, ARE INSUFFICIENT FOR AN AWARD OF DAMAGES FOR FALSE STATEMENTS
UNLESS ACTUAL MALICE - KNOWLEDGE THAT THE STATEMENTS ARE FALSE OR IN
RECKLESS DISREGARD OF THE TRUTH - IS ALLEGED AND PROVED.  THE SPAHN
OPINION REVEALS THAT THE DEFENDANT IN THAT CASE RELIED ON NEW YORK
TIMES AS THE BASIS OF AN ARGUMENT THAT APPLICATION OF THE STATUTE TO
THE PUBLICATION OF A SUBSTANTIALLY FICTITIOUS BIOGRAPHY WOULD RUN AFOUL
OF THE CONSTITUTIONAL GUARANTEES.  THE COURT OF APPEALS HELD THAT NEW
YORK TIMES HAD NO APPLICATION.  THE COURT, AFTER DISTINGUISHING THE
CASES ON THE GROUND THAT SPAHN DID NOT DEAL WITH PUBLIC OFFICIALS OR
OFFICIAL CONDUCT, THEN SAYS, "THE FREE SPEECH WHICH IS ENCOURAGED AND
ESSENTIAL TO THE OPERATION OF A HEALTHY GOVERNMENT IS SOMETHING QUITE
DIFFERENT FROM AN INDIVIDUAL'S ATTEMPT TO ENJOIN THE PUBLICATION OF A
FICTITIOUS BIOGRAPHY OF HIM.  NO PUBLIC INTEREST IS SERVED BY
PROTECTING THE DISSEMINATION OF THE LATTER.  WE PERCEIVE NO
CONSTITUTIONAL INFIRMITIES IN THIS RESPECT."  18 N.Y.2D, AT 329, 221
N.E.2D, AT 546.    IF THIS IS MEANT TO IMPLY THAT PROOF OF KNOWING OR
RECKLESS FALSITY IS NOT ESSENTIAL TO A CONSTITUTIONAL APPLICATION OF
THE STATUTE IN THESE CASES, WE DISAGREE WITH THE COURT OF APPEALS. 
(FN10)  WE HOLD THAT THE CONSTITUTIONAL PROTECTIONS FOR SPEECH AND
PRESS PRECLUDE THE APPLICATION OF THE NEW YORK STATUTE TO REDRESS FALSE
REPORTS OF MATTERS OF PUBLIC INTEREST IN THE ABSENCE OF PROOF THAT THE
DEFENDANT PUBLISHED THE REPORT WITH KNOWLEDGE OF ITS FALSITY OR IN
RECKLESS DISREGARD OF THE TRUTH. 

THE GUARANTEES FOR SPEECH AND PRESS ARE NOT THE PRESERVE OF POLITICAL
EXPRESSION OR COMMENT UPON PUBLIC AFFAIRS, ESSENTIAL AS THOSE ARE TO
HEALTHY GOVERNMENT.  ONE NEED ONLY PICK UP ANY NEWSPAPER OR MAGAZINE TO
COMPREHEND THE VAST RANGE OF PUBLISHED MATTER WHICH EXPOSES PERSONS TO
PUBLIC VIEW, BOTH PRIVATE CITIZENS AND PUBLIC OFFICIALS.  EXPOSURE OF
THE SELF TO OTHERS IN VARYING DEGREES IS A CONCOMITANT OF LIFE IN A
CIVILIZED COMMUNITY.  THE RISK OF THIS EXPOSURE IS AN ESSENTIAL
INCIDENT OF LIFE IN A SOCIETY WHICH PLACES A PRIMARY VALUE ON FREEDOM
OF SPEECH AND OF PRESS.  "FREEDOM OF DISCUSSION, IF IT WOULD FULFILL
ITS HISTORIC FUNCTION IN THIS NATION, MUST EMBRACE ALL ISSUES ABOUT
WHICH INFORMATION IS NEEDED OR APPROPRIATE TO ENABLE THE MEMBERS OF
SOCIETY TO COPE WITH THE EXIGENCIES OF THEIR PERIOD."  THORNHILL V.
ALABAMA, 310 U.S. 88, 102.  "NO SUGGESTION CAN BE FOUND IN THE
CONSTITUTION THAT THE FREEDOM THERE GUARANTEED FOR SPEECH AND THE PRESS
BEARS AN INVERSE RATIO TO THE TIMELINESS AND IMPORTANCE OF THE IDEAS
SEEKING EXPRESSION."  BRIDGES V. CALIFORNIA, 314 U.S. 252, 269.  WE
HAVE NO DOUBT THAT THE SUBJECT OF THE LIFE ARTICLE, THE OPENING OF A
NEW PLAY LINKED TO AN ACTUAL INCIDENT, IS A MATTER OF PUBLIC INTEREST. 
"THE LINE BETWEEN THE INFORMING AND THE ENTERTAINING IS TOO ELUSIVE FOR
THE PROTECTION OF  ...  FREEDOM OF THE PRESS."  WINTERS V. NEW YORK,
333 U.S. 507, 510.  ERRONEOUS STATEMENT IS NO LESS INEVITABLE IN SUCH A
CASE THAN IN THE CASE OF COMMENT UPON PUBLIC AFFAIRS, AND IN BOTH, IF
INNOCENT OR MERELY NEGLIGENT, "  ...  IT MUST BE PROTECTED IF THE
FREEDOMS OF EXPRESSION ARE TO HAVE THE 'BREATHING SPACE' THAT THEY
'NEED  ...  TO SURVIVE'  ...  ."  NEW YORK TIMES CO. V. SULLIVAN,
SUPRA, AT 271-272.  AS JAMES MADISON SAID, "SOME DEGREE OF ABUSE IS
INSEPARABLE FROM THE PROPER USE OF EVERY THING; AND IN NO INSTANCE IS
THIS MORE TRUE THAN IN THAT OF THE PRESS."  4 ELLIOT'S DEBATES ON THE
FEDERAL CONSTITUTION 571 (1876 ED.).  WE CREATE A GRAVE RISK OF SERIOUS
IMPAIRMENT OF THE INDISPENSABLE SERVICE OF A FREE PRESS IN A FREE
SOCIETY IF WE SADDLE THE PRESS WITH THE IMPOSSIBLE BURDEN OF VERIFYING
TO A CERTAINTY THE FACTS ASSOCIATED IN NEWS ARTICLES WITH A PERSON'S
NAME, PICTURE OR PORTRAIT, PARTICULARLY AS RELATED TO NONDEFAMATORY
MATTER.  EVEN NEGLIGENCE WOULD BE A MOST ELUSIVE STANDARD, ESPECIALLY
WHEN THE CONTENT OF THE SPEECH ITSELF AFFORDS NO WARNING OF PROSPECTIVE
HARM TO ANOTHER THROUGH FALSITY.  A NEGLIGENCE TEST WOULD PLACE ON THE
PRESS THE INTOLERABLE BURDEN OF GUESSING HOW A JURY MIGHT ASSESS THE
REASONABLENESS OF STEPS TAKEN BY IT TO VERIFY THE ACCURACY OF EVERY
REFERENCE TO A NAME, PICTURE OR PORTRAIT. 

IN THIS CONTEXT, SANCTIONS AGAINST EITHER INNOCENT OR NEGLIGENT
MISSTATEMENT WOULD PRESENT A GRAVE HAZARD OF DISCOURAGING THE PRESS
FROM EXERCISING THE CONSTITUTIONAL GUARANTEES.  THOSE GUARANTEES ARE
NOT FOR THE BENEFIT OF THE PRESS SO MUCH AS FOR THE BENEFIT OF ALL OF
US.  A BROADLY DEFINED FREEDOM OF THE PRESS ASSURES THE MAINTENANCE OF
OUR POLITICAL SYSTEM AND AN OPEN SOCIETY.  FEAR OF LARGE VERDICTS IN
DAMAGE SUITS FOR INNOCENT OR MERELY NEGLIGENT MISSTATEMENT, EVEN FEAR
OF THE EXPENSE INVOLVED IN THEIR DEFENSE, MUST INEVITABLY CAUSE
PUBLISHERS TO "STEER  ...  WIDER OF THE UNLAWFUL ZONE," NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S., AT 279; SEE ALSO SPEISER V. RANDALL, 357
U.S. 513, 526; SMITH V. CALIFORNIA, 361 U.S. 147, 153-154; AND THUS
"CREATE THE DANGER THAT THE LEGITIMATE UTTERANCE WILL BE PENALIZED." 
SPEISER V. RANDALL, SUPRA, AT 526. 

BUT THE CONSTITUTIONAL GUARANTEES CAN TOLERATE SANCTIONS AGAINST
CALCULATED FALSEHOOD WITHOUT SIGNIFICANT IMPAIRMENT OF THEIR ESSENTIAL
FUNCTION.  WE HELD IN NEW YORK TIMES THAT CALCULATED FALSEHOOD ENJOYED
NO IMMUNITY IN THE CASE OF ALLEGED DEFAMATION OF A PUBLIC OFFICIAL
CONCERNING HIS OFFICIAL CONDUCT.  SIMILARLY, CALCULATED FALSEHOOD
SHOULD ENJOY NO IMMUNITY IN THE SITUATION HERE PRESENTED US.  WHAT WE
SAID IN GARRISON V. LOUISIANA, SUPRA, AT 75, IS EQUALLY APPLICABLE: 

"THE USE OF CALCULATED FALSEHOOD  ...  WOULD PUT A DIFFERENT CAST ON
THE CONSTITUTIONAL QUESTION.  ALTHOUGH HONEST UTTERANCE, EVEN IF
INACCURATE, MAY FURTHER THE FRUITFUL EXERCISE OF THE RIGHT OF FREE
SPEECH, IT DOES NOT FOLLOW THAT THE LIE, KNOWINGLY AND DELIBERATELY
PUBLISHED  ...  SHOULD ENJOY A LIKE IMMUNITY  ...  .  FOR THE USE OF
THE KNOWN LIE AS A TOOL IS AT ONCE AT ODDS WITH THE PREMISES OF
DEMOCRATIC GOVERNMENT AND WITH THE ORDERLY MANNER IN WHICH ECONOMIC,
SOCIAL, OR POLITICAL CHANGE IS TO BE EFFECTED.  CALCULATED FALSEHOOD
FALLS INTO THAT CLASS OF UTTERANCES WHICH 'ARE NO ESSENTIAL PART OF ANY
EXPOSITION OF IDEAS, AND ARE OF SUCH SLIGHT SOCIAL VALUE AS A STEP TO
TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED FROM THEM IS CLEARLY
OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND MORALITY  ...  .' 
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572.  HENCE THE KNOWINGLY
FALSE STATEMENT AND THE FALSE STATEMENT MADE WITH RECKLESS DISREGARD OF
THE TRUTH, DO NOT ENJOY CONSTITUTIONAL PROTECTION." 

WE FIND APPLICABLE HERE THE STANDARD OF KNOWING OR RECKLESS
FALSEHOOD, NOT THROUGH BLIND APPLICATION OF NEW YORK TIMES CO. V.
SULLIVAN, RELATING SOLELY TO LIBEL ACTIONS BY PUBLIC OFFICIALS, BUT
ONLY UPON CONSIDERATION OF THE FACTORS WHICH ARISE IN THE PARTICULAR
CONTEXT OF THE APPLICATION OF THE NEW YORK STATUTE IN CASES INVOLVING
PRIVATE INDIVIDUALS.  THIS IS NEITHER A LIBEL ACTION BY A PRIVATE
INDIVIDUAL NOR A STATUTORY ACTION BY A PUBLIC OFFICIAL.  THEREFORE,
ALTHOUGH THE FIRST AMENDMENT PRINCIPLES PRONOUNCED IN NEW YORK TIMES
GUIDE OUR CONCLUSION, WE REACH THAT CONCLUSION ONLY BY APPLYING THESE
PRINCIPLES IN THIS DISCRETE CONTEXT.  IT THEREFORE SERVES NO PURPOSE TO
DISTINGUISH THE FACTS HERE FROM THOSE IN NEW YORK TIMES.  WERE THIS A
LIBEL ACTION, THE DISTINCTION WHICH HAS BEEN SUGGESTED BETWEEN THE
RELATIVE OPPORTUNITIES OF THE PUBLIC OFFICIAL AND THE PRIVATE
INDIVIDUAL TO REBUT DEFAMATORY CHARGES MIGHT BE GERMANE.  AND THE
ADDITIONAL STATE INTEREST IN THE PROTECTION OF THE INDIVIDUAL AGAINST
DAMAGE TO HIS REPUTATION WOULD BE INVOLVED.  CF.  ROSENBLATT V. BAER,
383 U.S. 75, 91 (STEWART, J., CONCURRING).  MOREOVER, A DIFFERENT TEST
MIGHT BE REQUIRED IN A STATUTORY ACTION BY A PUBLIC OFFICIAL, AS
OPPOSED TO A LIBEL ACTION BY A PUBLIC OFFICIAL OR A STATUTORY ACTION BY
A PRIVATE INDIVIDUAL.  DIFFERENT CONSIDERATIONS MIGHT ARISE CONCERNING
THE DEGREE OF "WAIVER" OF THE PROTECTION THE STATE MIGHT AFFORD.  BUT
THE QUESTION WHETHER THE SAME STANDARD SHOULD BE APPLICABLE BOTH TO
PERSONS VOLUNTARILY AND INVOLUNTARILY THRUST INTO THE PUBLIC LIMELIGHT
IS NOT HERE BEFORE US.

                                       II. 

TURNING TO THE FACTS OF THE PRESENT CASE, THE PROOFS REASONABLY WOULD
SUPPORT EITHER A JURY FINDING OF INNOCENT OR MERELY NEGLIGENT
MISSTATEMENT BY LIFE, OR A FINDING THAT LIFE PORTRAYED THE PLAY AS A RE
ENACTMENT OF THE HILL FAMILY'S EXPERIENCE RECKLESS OF THE TRUTH OR WITH
ACTUAL KNOWLEDGE THAT THE PORTRAYAL WAS FALSE.  THE RELEVANT TESTIMONY
IS AS FOLLOWS: 

JOSEPH HAYES, AUTHOR OF THE BOOK, ALSO WROTE THE PLAY.  THE STORY
THEME WAS INSPIRED BY THE DESIRE TO WRITE ABOUT "TRUE CRIME" AND FOR
YEARS BEFORE WRITING THE BOOK, HE COLLECTED NEWSPAPER CLIPPINGS OF
STORIES OF HOSTAGE INCIDENTS.  HIS STORY WAS NOT SHAPED BY ANY SINGLE
INCIDENT, BUT BY SEVERAL, INCLUDING INCIDENTS WHICH OCCURRED IN
CALIFORNIA, NEW YORK, AND DETROIT.  HE SAID THAT HE DID NOT CONSCIOUSLY
PORTRAY ANY MEMBER OF THE HILL FAMILY, OR THE HILL FAMILY'S EXPERIENCE,
ALTHOUGH ADMITTING THAT "IN A VERY DIRECT WAY" THE HILL EXPERIENCE
"TRIGGERED" THE WRITING OF THE BOOK AND THE PLAY. 

THE LIFE ARTICLE WAS PREPARED AT THE DIRECTION AND UNDER THE
SUPERVISION OF ITS ENTERTAINMENT EDITOR, PRIDEAUX.  HE LEARNED OF THE
PRODUCTION OF THE PLAY FROM A NEWS STORY.  THE PLAY'S DIRECTOR, ROBERT
MONTGOMERY, LATER SUGGESTED TO HIM THAT ITS INTERESTING STAGE SETTING
WOULD MAKE THE PLAY A WORTHWHILE SUBJECT FOR AN ARTICLE IN LIFE.  AT
ABOUT THE SAME TIME, PRIDEAUX RAN INTO A FRIEND OF AUTHOR HAYES, A FREE
LANCE PHOTOGRAPHER, WHO TOLD PRIDEAUX IN CASUAL CONVERSATION THAT THE
PLAY HAD A "SUBSTANTIAL CONNECTION WITH A TRUE-LIFE INCIDENT OF A
FAMILY BEING HELD BY ESCAPED CONVICTS NEAR PHILADELPHIA."  AS THE PLAY
WAS TRYING OUT IN PHILADELPHIA, PRIDEAUX DECIDED TO CONTACT THE
AUTHOR.  HAYES CONFIRMED THAT AN INCIDENT SOMEWHAT SIMILAR TO THE PLAY
HAD OCCURRED IN PHILADELPHIA, AND AGREED WITH PRIDEAUX TO FIND OUT
WHETHER THE FORMER HILL RESIDENCE WOULD BE AVAILABLE FOR THE SHOOTING
OF PICTURES FOR A LIFE ARTICLE.  PRIDEAUX THEN MET WITH HAYES IN
PHILADELPHIA WHERE HE SAW THE PLAY AND DROVE WITH HAYES TO THE FORMER
HILL RESIDENCE TO TEST ITS SUITABILITY FOR A PICTURE STORY.  NEITHER
THEN NOR THEREAFTER DID PRIDEAUX QUESTION HAYES ABOUT THE EXTENT TO
WHICH THE PLAY WAS BASED ON THE HILL INCIDENT.  "A SPECIFIC QUESTION OF
THAT NATURE WAS NEVER ASKED, BUT A DISCUSSION OF THE PLAY ITSELF, WHAT
THE PLAY WAS ABOUT, IN THE LIGHT OF MY OWN KNOWLEDGE OF WHAT THE TRUE
INCIDENT WAS ABOUT, CONFIRMED IN MY MIND BEYOND ANY DOUBT THAT THERE
WAS A RELATIONSHIP, AND MR. HAYES' PRESENCE AT THIS WHOLE NEGOTIATION
WAS TACIT PROOF OF THAT." 

PRIDEAUX SENT PHOTOGRAPHERS TO THE HILL RESIDENCE FOR LOCATION
PHOTOGRAPHS OF SCENES OF THE PLAY ENACTED IN THE HOME, AND PROCEEDED TO
CONSTRUCT THE TEXT OF THE ARTICLE.  IN HIS "STORY FILE" WERE SEVERAL
NEWS CLIPPINGS ABOUT THE HILL INCIDENT WHICH REVEALED ITS NONVIOLENT
CHARACTER, AND A NEW YORK TIMES ARTICLE BY HAYES IN WHICH HE STATED
THAT THE PLAY "WAS BASED ON VARIOUS NEWS STORIES," MENTIONING INCIDENTS
IN NEW YORK, CALIFORNIA, DETROIT AND PHILADELPHIA. 

PRIDEAUX'S FIRST DRAFT MADE NO MENTION OF THE HILL NAME EXCEPT FOR
THE CAPTION OF ONE OF THE PHOTOGRAPHS.  THE TEXT RELATED THAT A TRUE
STORY OF A SUBURBAN PHILADELPHIA FAMILY HAD "SPARKED OFF" HAYES TO
WRITE THE NOVEL, THAT THE PLAY WAS A "SOMEWHAT FICTIONALIZED" ACCOUNT
OF THE FAMILY'S HEROISM IN TIME OF CRISIS.  PRIDEAUX'S RESEARCH
ASSISTANT, WHOSE TASK IT WAS TO CHECK THE DRAFT FOR ACCURACY, PUT A
QUESTION MARK OVER THE WORDS "SOMEWHAT FICTIONALIZED."  PRIDEAUX
TESTIFIED THAT THE QUESTION MARK "MUST HAVE BEEN" BROUGHT TO HIS
ATTENTION, ALTHOUGH HE DID NOT RECOLLECT HAVING SEEN IT.  THE DRAFT WAS
ALSO BROUGHT BEFORE THE COPY EDITOR, WHO, IN THE PRESENCE OF PRIDEAUX,
MADE SEVERAL CHANGES IN EMPHASIS AND SUBSTANCE.  THE FIRST SENTENCE WAS
CHANGED TO FOCUS ON THE HILL INCIDENT, USING THE FAMILY'S NAME; THE
NOVEL WAS SAID TO HAVE BEEN "INSPIRED" BY THAT INCIDENT, AND THE PLAY
WAS REFERRED TO AS A "RE-ENACTMENT."  THE WORDS "SOMEWHAT
FICTIONALIZED" WERE DELETED. 

PRIDEAUX LABELED AS "EMPHATICALLY UNTRUE" DEFENSE COUNSEL'S
SUGGESTION DURING REDIRECT EXAMINATION THAT FROM THE BEGINNING HE KNEW
THAT THE PLAY HAD NO RELATIONSHIP TO THE HILL INCIDENT APART FROM BEING
A HOSTAGE INCIDENT.  PRIDEAUX ADMITTED THAT HE KNEW THE PLAY WAS
"BETWEEN A LITTLE BIT AND MODERATELY FICTIONALIZED," BUT STATED THAT HE
THOUGHT BEYOND DOUBT THAT THE IMPORTANT QUALITY, THE "HEART AND SOUL"
OF THE PLAY, WAS THE HILL INCIDENT. 

THE JURY MIGHT REASONABLY CONCLUDE FROM THIS EVIDENCE - PARTICULARLY
THAT THE NEW YORK TIMES ARTICLE WAS IN THE STORY FILE, THAT THE COPY
EDITOR DELETED "SOMEWHAT FICTIONALIZED" AFTER THE RESEARCH ASSISTANT
QUESTIONED ITS ACCURACY, AND THAT PRIDEAUX ADMITTED THAT HE KNEW THE
PLAY WAS "BETWEEN A LITTLE BIT AND MODERATELY FICTIONALIZED" - THAT
LIFE KNEW THE FALSITY OF, OR WAS RECKLESS OF THE TRUTH IN, STATING IN
THE ARTICLE THAT "THE STORY RE-ENACTED" THE HILL FAMILY'S EXPERIENCE. 
ON THE OTHER HAND, THE JURY MIGHT REASONABLY PREDICATE A FINDING OF
INNOCENT OR ONLY NEGLIGENT MISSTATEMENT ON THE TESTIMONY THAT A
STATEMENT WAS MADE TO PRIDEAUX BY THE FREE-LANCE PHOTOGRAPHER THAT
LINKED THE PLAY TO AN INCIDENT IN PHILADELPHIA, THAT THE AUTHOR HAYES
COOPERATED IN ARRANGING FOR THE AVAILABILITY OF THE FORMER HILL HOME,
AND THAT PRIDEAUX THOUGHT BEYOND DOUBT THAT THE "HEART AND SOUL" OF THE
PLAY WAS THE HILL INCIDENT.  (FN11)

                    III. 

WE DO NOT THINK, HOWEVER, THAT THE INSTRUCTIONS CONFINED THE JURY TO
A VERDICT OF LIABILITY BASED ON A FINDING THAT THE STATEMENTS IN THE
ARTICLE WERE MADE WITH KNOWLEDGE OF THEIR FALSITY OR IN RECKLESS
DISREGARD OF THE TRUTH.  THE JURY WAS INSTRUCTED THAT LIABILITY COULD
NOT BE FOUND UNDER SECS 50-51 "MERELY BECAUSE OF SOME INCIDENTAL
MISTAKE OF FACT, OR SOME INCIDENTAL INCORRECT STATEMENT," AND THAT A
VERDICT OF LIABILITY COULD REST ONLY ON FINDINGS THAT (1) LIFE
PUBLISHED THE ARTICLE, "NOT TO DISSEMINATE NEWS, BUT WAS USING
PLAINTIFFS' NAMES, IN CONNECTION WITH A FICTIONALIZED EPISODE AS TO
PLAINTIFFS' RELATIONSHIP TO THE DESPERATE HOURS"; THE COURT VARIOUSLY
RESTATED THIS "FICTIONALIZATION" REQUIREMENT IN TERMS SUCH AS WHETHER
APPELLANT "ALTERED OR CHANGED THE TRUE FACTS CONCERNING PLAINTIFFS'
RELATIONSHIP TO THE DESPERATE HOURS, SO THAT THE ARTICLE, AS PUBLISHED,
CONSTITUTED SUBSTANTIALLY FICTION OR A FICTIONALIZED VERSION  ...  ,"
WHETHER THE ARTICLE CONSTITUTED "FICTION," OR WAS "FICTIONALIZED"; AND
THAT (2) THE ARTICLE WAS PUBLISHED TO ADVERTISE THE PLAY OR "FOR TRADE
PURPOSES."  THIS LATTER PURPOSE WAS VARIOUSLY DEFINED AS ONE "TO AMUSE,
THRILL, ASTONISH OR MOVE THE READING PUBLIC SO AS TO INCREASE THE
CIRCULATION OF THE MAGAZINE OR FOR SOME OTHER MATERIAL BENEFIT," "TO
INCREASE CIRCULATION OR ENHANCE THE STANDING OF THE MAGAZINE WITH ITS
READERS," AND "FOR THE PUBLISHER'S PROFITS THROUGH INCREASED
CIRCULATION, INDUCED BY EXPLOITATION OF THE PLAINTIFFS."    THE COURT
ALSO INSTRUCTED THE JURY THAT AN AWARD OF PUNITIVE DAMAGES WAS
JUSTIFIED IF THE JURY FOUND THAT THE APPELLANT FALSELY CONNECTED
APPELLEE TO THE PLAY "KNOWINGLY OR THROUGH FAILURE TO MAKE A REASONABLE
INVESTIGATION," ADDING "YOU DO NOT NEED TO FIND THAT THERE WAS ANY
ACTUAL ILL WILL OR PERSONAL MALICE TOWARD THE PLAINTIFFS IF YOU FIND A
RECKLESS OR WANTON DISREGARD OF THE PLAINTIFFS' RIGHTS." 

APPELLEE ARGUES THAT THE INSTRUCTIONS TO DETERMINE WHETHER LIFE
"ALTERED OR CHANGED" THE TRUE FACTS, AND WHETHER, APART FROM INCIDENTAL
ERRORS, THE ARTICLE WAS A "SUBSTANTIAL FICTION" OR A "FICTIONALIZED
VERSION" WERE TANTAMOUNT TO INSTRUCTIONS THAT THE JURY MUST FIND THAT
LIFE KNOWINGLY FALSIFIED THE FACTS.  WE DO NOT THINK THAT THE
INSTRUCTIONS BEAR THAT INTERPRETATION, PARTICULARLY IN LIGHT OF THE
MARKED CONTRAST IN THE INSTRUCTIONS ON COMPENSATORY AND PUNITIVE
DAMAGES.  THE ELEMENT OF "KNOWINGLY" IS MENTIONED ONLY IN THE
INSTRUCTION THAT PUNITIVE DAMAGES MUST BE SUPPORTED BY A FINDING THAT
LIFE FALSELY CONNECTED THE HILL FAMILY WITH THE PLAY "KNOWINGLY OR
THROUGH FAILURE TO MAKE A REASONABLE INVESTIGATION."  MOREOVER, EVEN AS
TO PUNITIVE DAMAGES, THE INSTRUCTION THAT SUCH DAMAGES WERE JUSTIFIED
ON THE BASIS OF "FAILURE TO MAKE A REASONABLE INVESTIGATION" IS AN
INSTRUCTION THAT PROOF OF NEGLIGENT MISSTATEMENT IS ENOUGH, AND WE HAVE
REJECTED THE TEST OF NEGLIGENT MISSTATEMENT AS INADEQUATE.  (FN12)
NEXT, THE TRIAL JUDGE PLAINLY DID NOT REGARD HIS INSTRUCTIONS AS
LIMITING THE JURY TO A VERDICT OF LIABILITY BASED ON A FINDING OF
KNOWING OR RECKLESS FALSITY; HE DENIED APPELLANT'S MOTION TO DISMISS
AFTER THE CLOSE OF THE EVIDENCE BECAUSE HE PERCEIVED THAT IT WAS FOR
THE JURY TO FIND "WHETHER THE LIFE ARTICLE WAS TRUE OR WHETHER AN
INFERENCE COULD BE OBTAINED FROM READING IT THAT IT WAS NOT TRUE." 
THIS IMPLIES A VIEW THAT "FICTIONALIZATION" WAS SYNONYMOUS WITH
"FALSITY" WITHOUT REGARD TO KNOWLEDGE OR EVEN NEGLIGENCE, EXCEPT FOR
THE PURPOSE OF AN AWARD OF PUNITIVE DAMAGES.  FINALLY, NOTHING IN THE
NEW YORK CASES DECIDED AT THE TIME OF TRIAL LIMITED LIABILITY TO CASES
OF KNOWING OR RECKLESS FALSITY AND SPAHN, DECIDED SINCE, HAS LEFT THE
QUESTION IN DOUBT.  (FN13) 

THE REQUIREMENT THAT THE JURY ALSO FIND THAT THE ARTICLE WAS
PUBLISHED "FOR TRADE PURPOSES," AS DEFINED IN THE CHARGE, CANNOT SAVE
THE CHARGE FROM CONSTITUTIONAL INFIRMITY.  "THAT BOOKS, NEWSPAPERS, AND
MAGAZINES ARE PUBLISHED AND SOLD FOR PROFIT DOES NOT PREVENT THEM FROM
BEING A FORM OF EXPRESSION WHOSE LIBERTY IS SAFEGUARDED BY THE FIRST
AMENDMENT."  JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495, 501-502; SEE
NEW YORK TIMES CO. V. SULLIVAN, 376 U.S., AT 266; SMITH V. CALIFORNIA,
361 U.S. 147, 150; CF. EX PARTE JACKSON, 96 U.S. 727, 733; GROSJEAN V.
AMERICAN PRESS CO., 297 U.S. 233; LOVELL V. GRIFFIN, 303 U.S. 444. 

                                     IV. 

THE APPELLANT ARGUES THAT THE STATUTE SHOULD BE DECLARED
UNCONSTITUTIONAL ON ITS FACE IF CONSTRUED BY THE NEW YORK COURTS TO
IMPOSE LIABILITY WITHOUT PROOF OF KNOWING OR RECKLESS FALSITY.  (FN14)
SUCH A DECLARATION WOULD NOT BE WARRANTED EVEN IF IT WERE ENTIRELY
CLEAR THAT THIS HAD PREVIOUSLY BEEN THE VIEW OF THE NEW YORK COURTS. 
THE NEW YORK COURT OF APPEALS, AS THE SPAHN OPINION DEMONSTRATES, HAS
BEEN ASSIDUOUS IN CONSTRUING THE STATUTE TO AVOID INVASION OF THE
CONSTITUTIONAL PROTECTIONS OF SPEECH AND PRESS.  WE, THEREFORE,
CONFIDENTLY EXPECT THAT THE NEW YORK COURTS WILL APPLY THE STATUTE
CONSISTENTLY WITH THE CONSTITUTIONAL COMMAND.  ANY POSSIBLE DIFFERENCE
WITH US AS TO THE THRUST OF THE CONSTITUTIONAL COMMAND IS NARROWLY
LIMITED IN THIS CASE TO THE FAILURE OF THE TRIAL JUDGE TO INSTRUCT THE
JURY THAT A VERDICT OF LIABILITY COULD BE PREDICATED ONLY ON A FINDING
OF KNOWING OR RECKLESS FALSITY IN THE PUBLICATION OF THE LIFE ARTICLE. 

THE JUDGMENT OF THE COURT OF APPEALS IS SET ASIDE AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
IT IS SO ORDERED. 

FN1  THE COMPLETE TEXT OF THE NEW YORK CIVIL RIGHTS LAW SECS 50-51 IS
AS FOLLOWS: 

"SEC 50.  RIGHT OF PRIVACY: 

"A PERSON, FIRM OR CORPORATION THAT USES FOR ADVERTISING PURPOSES, OR
FOR THE PURPOSES OF TRADE, THE NAME, PORTRAIT OR PICTURE OF ANY LIVING
PERSON WITHOUT HAVING FIRST OBTAINED THE WRITTEN CONSENT OF SUCH
PERSON, OR IF A MINOR OF HIS OR HER PARENT OR GUARDIAN, IS GUILTY OF A
MISDEMEANOR." 

"SEC 51.  ACTION FOR INJUNCTION AND FOR DAMAGES: 

"ANY PERSON WHOSE NAME, PORTRAIT OR PICTURE IS USED WITHIN THIS STATE
FOR ADVERTISING PURPOSES OR FOR THE PURPOSES OF TRADE WITHOUT THE
WRITTEN CONSENT FIRST OBTAINED AS ABOVE PROVIDED MAY MAINTAIN AN
EQUITABLE ACTION IN THE SUPREME COURT OF THIS STATE AGAINST THE PERSON,
FIRM OR CORPORATION SO USING HIS NAME, PORTRAIT OR PICTURE, TO PREVENT
AND RESTRAIN THE USE THEREOF; AND MAY ALSO SUE AND RECOVER DAMAGES FOR
ANY INJURIES SUSTAINED BY REASON OF SUCH USE AND IF THE DEFENDANT SHALL
HAVE KNOWINGLY USED SUCH PERSON'S NAME, PORTRAIT OR PICTURE IN SUCH
MANNER AS IS FORBIDDEN OR DECLARED TO BE UNLAWFUL BY THE LAST SECTION,
THE JURY, IN ITS DISCRETION, MAY AWARD EXEMPLARY DAMAGES.  BUT NOTHING
CONTAINED IN THIS ACT SHALL BE SO CONSTRUED AS TO PREVENT ANY PERSON,
FIRM OR CORPORATION, PRACTICING THE PROFESSION OF PHOTOGRAPHY, FROM
EXHIBITING IN OR ABOUT HIS OR ITS ESTABLISHMENT SPECIMENS OF THE WORK
OF SUCH ESTABLISHMENT, UNLESS THE SAME IS CONTINUED BY SUCH PERSON,
FIRM OR CORPORATION AFTER WRITTEN NOTICE OBJECTING THERETO HAS BEEN
GIVEN BY THE PERSON PORTRAYED; AND NOTHING CONTAINED IN THIS ACT SHALL
BE SO CONSTRUED AS TO PREVENT ANY PERSON, FIRM OR CORPORATION FROM
USING THE NAME, PORTRAIT OR PICTURE OF ANY MANUFACTURER OR DEALER IN
CONNECTION WITH THE GOODS, WARES AND MERCHANDISE MANUFACTURED, PRODUCED
OR DEALT IN BY HIM WHICH HE HAS SOLD OR DISPOSED OF WITH SUCH NAME,
PORTRAIT OR PICTURE USED IN CONNECTION THEREWITH; OR FROM USING THE
NAME, PORTRAIT OR PICTURE OF ANY AUTHOR, COMPOSER OR ARTIST IN
CONNECTION WITH HIS LITERARY, MUSICAL OR ARTISTIC PRODUCTIONS WHICH HE
HAS SOLD OR DISPOSED OF WITH SUCH NAME, PORTRAIT OR PICTURE USED IN
CONNECTION THEREWITH." 

FN2  INITIALLY, APPELLEE'S WIFE WAS JOINED IN THE ACTION, AND WAS
AWARDED $75,000 COMPENSATORY AND $25,000 PUNITIVE DAMAGES BY THE JURY. 
HOWEVER, HER ACTION WAS APPARENTLY DISMISSED BY STIPULATION PRIOR TO
REMAND, BECAUSE THE ACTION HAS SINCE PROCEEDED SOLELY UPON APPELLEE'S
JUDGMENT. 

FN3  THE VARIOUS FACETS OF THIS "RIGHT" HAVE BEEN THE SUBJECT OF MUCH
COMMENT.  SEE, E.G., BEANEY, THE CONSTITUTIONAL RIGHT TO PRIVACY IN THE
SUPREME COURT, 1962 SUP. CT. REV. 212; PROSSER, PRIVACY, 48 CALIF. L.
REV. 383 (1960); WESTIN, SCIENCE, PRIVACY, AND FREEDOM:  ISSUES AND
PROPOSALS FOR THE 1970'S (PART I), 66 COL. L. REV. 1003 (1966);
FEINBERG, RECENT DEVELOPMENTS IN THE LAW OF PRIVACY, 48 COL. L. REV.
713, 717-726 (1948).  THE LATEST COLLECTION OF ARTICLES APPEARS IN 31
LAW & CONTEMP.  PROB.  251-435 (1966).  THE COMMENTARY RELATES NOT SO
MUCH TO THE ASSERTION OF CONSTITUTIONAL PROTECTIONS AGAINST INTRUSIONS
BY GOVERNMENT, SEE GRISWOLD V. CONNECTICUT, 381 U.S. 479, AS TO RIGHTS
OF ACTION FOR INJUNCTIVE RELIEF OR DAMAGES TO COMBAT INTRUSIVE BEHAVIOR
IN THE PRIVATE SECTOR OF SOCIETY. 

FN4  UTAH'S STATUTE WAS MODELED ON NEW YORK'S AND, FOLLOWING EARLY
NEW YORK DECISIONS, THE UTAH SUPREME COURT HAS CONSTRUED IT TO AFFORD A
CAUSE OF ACTION ONLY IN SUCH CASES.  DONAHUE V. WARNER BROS. PICTURES
DIST. CORP., 2 UTAH 2D 256, 272 P.2D 177 (1954). 

FN5  SEE, E.G., SIDIS V. F-R PUB. CORP., 113 F.2D 806 (C.A.2D CIR.),
CERT. DENIED, 311 U.S. 711 (1940); SWEENEK V. PATHE NEWS, INC., 16 F.
SUPP. 746 (D.C.E.D.N.Y. 1936); GAUTIER V. PRO-FOOTBALL, INC., 278 APP.
DIV. 431, 106 N.Y.S.2D 553 (1951), AFF'D, 304 N.Y. 354, 107 N.E.2D 485
(1952); MOLONY V. BOY COMICS PUBS., INC., 277 APP. DIV. 166, 98
N.Y.S.2D 119 (1950); HUMISTON V. UNIVERSAL FILM MFG. CO., 189 APP. DIV.
467, 178 N.Y. SUPP. 752 (1919); COLYER V. RICHARD K. FOX PUB. CO., 162
APP. DIV. 297, 146 N.Y. SUPP. 999 (1914); KOUSSEVITZKY V. ALLEN, TOWNE
& HEATH, INC., 188 MISC. 479, 68 N.Y.S.2D 779, AFF'D, 272 APP. DIV.
759, 69 N.Y.S.2D 432 (1947); LAHIRI V. DAILY MIRROR, INC., 162 MISC.
776, 295 N.Y. SUPP. 382 (1937). 

FN6  "UPON REARGUMENT, COUNSEL ARE REQUESTED TO DISCUSS IN THEIR
FURTHER BRIEFS AND ORAL ARGUMENTS, IN ADDITION TO THE OTHER ISSUES, THE
FOLLOWING QUESTIONS: 

"(1)  IS THE TRUTHFUL PRESENTATION OF A NEWSWORTHY ITEM EVER
ACTIONABLE UNDER THE NEW YORK STATUTE AS CONSTRUED OR ON ITS FACE?  IF
SO, DOES APPELLANT HAVE STANDING TO CHALLENGE THAT ASPECT OF THE
STATUTE? 

"(2)  SHOULD THE PER CURIAM OPINION OF THE NEW YORK COURT OF APPEALS
BE READ AS ADOPTING THE FOLLOWING PORTION OF THE CONCURRING OPINION IN
THE APPELLATE DIVISION? 

"'HOWEVER, IF IT CAN BE CLEARLY DEMONSTRATED THAT THE NEWSWORTHY ITEM
IS PRESENTED, NOT FOR THE PURPOSE OF DISSEMINATING NEWS, BUT RATHER FOR
THE SOLE PURPOSE OF INCREASING CIRCULATION, THEN THE RATIONALE FOR
EXEMPTION FROM SECTION 51 NO LONGER EXISTS AND THE EXEMPTION SHOULD NOT
APPLY.  IN SUCH CIRCUMSTANCES THE PRIVILEGE TO USE ONE'S NAME SHOULD
NOT BE GRANTED EVEN THOUGH A TRUE ACCOUNT OF THE EVENT BE GIVEN - LET
ALONE WHEN THE ACCOUNT IS SENSATIONALIZED AND FICTIONALIZED.'"  384
U.S. 995. 

FN7  THIS LIMITATION TO NEWSWORTHY PERSONS AND EVENTS DOES NOT OF
COURSE FORECLOSE AN INTERPRETATION OF THE STATUTE TO ALLOW DAMAGES
WHERE "REVELATIONS MAY BE SO INTIMATE AND SO UNWARRANTED IN VIEW OF THE
VICTIM'S POSITION AS TO OUTRAGE THE COMMUNITY'S NOTIONS OF DECENCY." 
SIDIS V. F-R PUB. CORP., 113 F.2D 806, 809 (C.A.2D CIR.), CERT. DENIED,
311 U.S. 711 (1940).  CF. GARNER V. TRIANGLE PUBS., INC., 97 F. SUPP.
546, 550 (D.C.S.D.N.Y. 1951); RESTATEMENT, TORTS SEC 867, COMMENT D
(1939).  SEE ID., ILLUST.  6.  THIS CASE PRESENTS NO QUESTION WHETHER
TRUTHFUL PUBLICATION OF SUCH MATTER COULD BE CONSTITUTIONALLY
PROSCRIBED. 

IT HAS BEEN SAID THAT A "RIGHT OF PRIVACY" HAS BEEN RECOGNIZED AT
COMMON LAW IN 30 STATES PLUS THE DISTRICT OF COLUMBIA AND BY STATUTE IN
FOUR STATES.  SEE PROSSER, LAW OF TORTS 831-832 (3D ED. 1964). 
PROFESSOR KALVEN NOTES, HOWEVER, THAT SINCE WARREN AND BRANDEIS
CHAMPIONED AN ACTION AGAINST THE PRESS FOR PUBLIC DISCLOSURE OF
TRUTHFUL BUT PRIVATE DETAILS ABOUT THE INDIVIDUAL WHICH CAUSED
EMOTIONAL UPSET TO HIM, "IT HAS BEEN AGREED THAT THERE IS A GENEROUS
PRIVILEGE TO SERVE THE PUBLIC INTEREST IN NEWS  ...  .  WHAT IS AT
ISSUE, IT SEEMS TO ME, IS WHETHER THE CLAIM OF PRIVILEGE IS NOT SO
OVERPOWERING AS VIRTUALLY TO SWALLOW THE TORT.  WHAT CAN BE LEFT OF THE
VAUNTED NEW RIGHT AFTER THE CLAIMS OF PRIVILEGE HAVE BEEN CONFRONTED?" 
KALVEN, "PRIVACY IN TORT LAW - WERE WARREN AND BRANDEIS WRONG?"  31 LAW
& CONTEMP.  PROB.  326, 335-336 (1966).  SOME REPRESENTATIVE CASES IN
WHICH THE STATE "RIGHT OF PRIVACY" WAS HELD TO GIVE WAY TO THE RIGHT OF
THE PRESS TO PUBLISH MATTERS OF PUBLIC INTEREST ARE AFRO-AMERICAN PUB.
CO. V. JAFFE, 125 U.S. APP. D.C. 70, 366 F.2D 649 (1966); WAGNER V.
FAWCETT PUBS., 307 F.2D 409 (C.A. 7TH CIR. 1962); JENKINS V. DELL PUB.
CO., 251 F.2D 447 (C.A. 3D CIR. 1958); ELMHURST V. PEARSON, 80 U.S.
APP.  D.C. 372, 153 F.2D 467 (1946); THOMPSON V. CURTIS PUB. CO., 193
F.2D 953 (C.A. 3D CIR. 1952); SAMUEL V. CURTIS PUB. CO., 122 F. SUPP.
327 (D.C.N.D. CAL. 1954); MILLER V. N.B.C., 157 F. SUPP. 240 (D.C. DEL.
1957); BERG V. MINNEAPOLIS STAR & TRIBUNE CO., 79 F. SUPP.  957 (D.C.
MINN. 1948); SMITH V. DOSS, 251 ALA. 250, 37 SO. 2D 118 (1948); SMITH
V. SURATT, 7 ALASKA 416 (1926); METTER V. LOS ANGELES EXAMINER, 35 CAL.
APP. 2D 304, 95 P.2D 491 (1939); BARBIERI V. NEWS-JOURNAL CO., - DEL. -
, 189 A.2D 773 (1963); JACOVA V. SOUTHERN RADIO & T.V. CO., 83 SO. 2D
34 (FLA. 1955); WATERS V. FLEETWOOD, 212 GA. 161, 91 S.E.2D 344 (1956);
BUZINSKI V. DO-ALL CO., 31 ILL. APP. 2D 191, 175 N.E.2D 577 (1961);
JONES V. HERALD POST CO., 230 KY. 227, 18 S.W.2D 972 (1929); KELLEY V.
POST PUB. CO., 327 MASS.  275, 98 N.E.2D 286 (1951); MARTIN V. DORTON,
210 MISS.  668, 50 SO. 2D 391 (1951); HUBBARD V. JOURNAL PUB. CO., 69
N.M. 473, 368 P.2D 147 (1962); SCHNABEL V. MEREDITH, 378 PA.  609, 107
A.2D 860 (1954); MEETZE V. ASSOCIATED PRESS, 230 S.C. 330, 95 S.E.2D
606 (1956); TRUXES V. KENCO ENTERPRISES, 80 S.D. 104, 119 N.W.2D 914
(1963).  SEE RESTATEMENT, TORTS SEC 867, COMMENT D (1939). 

FN8  "ONE OF THE CLEAREST EXCEPTIONS TO THE STATUTORY PROHIBITION IS
THE RULE THAT A PUBLIC FIGURE, WHETHER HE BE SUCH BY CHOICE OR
INVOLUNTARILY, IS SUBJECT TO THE OFTEN SEARCHING BEAM OF PUBLICITY AND
THAT, IN BALANCE WITH THE LEGITIMATE PUBLIC INTEREST, THE LAW AFFORDS
HIS PRIVACY LITTLE PROTECTION," SPAHN, SUPRA, AT 328, 221 N.E.2D, AT
545. 

FN9  BINNS V. VITAGRAPH CO., 210 N.Y. 51, 103 N.E. 1108 (1913);
YOUSSOUPOFF V. COLUMBIA BROADCASTING SYSTEM, INC., 19 APP. DIV. 2D 865,
244 N.Y.S.2D 1 (1963); SUTTON V. HEARST CORP., 277 APP. DIV. 155, 98
N.Y.S.2D 233 (1950); KOUSSEVITZKY V. ALLEN, TOWNE & HEATH, INC., 188
MISC. 479, 68 N.Y.S.2D 779, AFF'D, 272 APP. DIV. 759, 69 N.Y.S.2D 432
(1947); LAHIRI V. DAILY MIRROR, INC., 162 MISC. 776, 295 N.Y. SUPP. 382
(1937).  THE DOCTRINE OF "FICTIONALIZATION" HAS BEEN APPLIED WHERE
THERE IS NO STATUTE.  SEE, E.G., LEVERTON V. CURTIS PUB. CO., 192 F.2D
974 (C.A. 3D CIR. 1951); HAZLITT V. FAWCETT PUBS., 116 F. SUPP.  538
(D.C. CONN. 1953); GARNER V. TRIANGLE PUBS., INC., 97 F. SUPP. 546
(D.C.S.D.N.Y. 1951).  COMMENTATORS HAVE LIKENED THE INTEREST PROTECTED
IN THOSE "PRIVACY" CASES WHICH FOCUS UPON THE FALSITY OF THE MATTER TO
THAT PROTECTED IN CASES OF LIBEL AND SLANDER - INJURY TO THE
REPUTATION.  SEE PROSSER, PRIVACY, 48 CALIF. L. REV. 383, 398-401
(1960); WADE, DEFAMATION AND THE RIGHT OF PRIVACY, 15 VAND.  L. REV.
1093 (1962).  BUT SEE BLOUSTEIN, PRIVACY AS AN ASPECT OF HUMAN DIGNITY:
AN ANSWER TO DEAN PROSSER, 39 N.Y.U.L. REV. 962, 991-993 (1964).  MANY
"RIGHT OF PRIVACY" CASES COULD IN FACT HAVE BEEN BROUGHT AS "LIBEL PER
QUOD" ACTIONS, AND SEVERAL HAVE BEEN BROUGHT ON BOTH GROUNDS.  SEE,
E.G., HAZLITT V. FAWCETT PUBS., SUPRA; FREEMAN V. BUSCH JEWELRY CO., 98
F. SUPP. 963 (D.C.N.D. GA. 1951); PEAY V. CURTIS PUB. CO., 78 F. SUPP.
305 (D.C.D.C. 1948); FOSTER-MILBURN CO. V. CHINN, 134 KY. 424, 120 S.W.
364 (1909).  ALTHOUGH NOT USUALLY THOUGHT OF IN TERMS OF "RIGHT OF
PRIVACY," ALL LIBEL CASES CONCERN PUBLIC EXPOSURE BY FALSE MATTER, BUT
THE PRIMARY HARM BEING COMPENSATED IS DAMAGE TO REPUTATION.  IN THE
"RIGHT OF PRIVACY" CASES THE PRIMARY DAMAGE IS THE MENTAL DISTRESS FROM
HAVING BEEN EXPOSED TO PUBLIC VIEW, ALTHOUGH INJURY TO REPUTATION MAY
BE AN ELEMENT BEARING UPON SUCH DAMAGE.  SEE WADE, SUPRA, AT 1124. 
MOREOVER, AS SPAHN ILLUSTRATES, THE PUBLISHED MATTER NEED NOT BE
DEFAMATORY, ON ITS FACE OR OTHERWISE, AND MIGHT EVEN BE LAUDATORY AND
STILL WARRANT RECOVERY.  OUR DECISION TODAY IS NOT TO BE TAKEN TO
DECIDE ANY CONSTITUTIONAL QUESTIONS WHICH MAY BE RAISED IN "LIBEL PER
QUOD" ACTIONS INVOLVING PUBLICATION OF MATTERS OF PUBLIC INTEREST, OR
IN LIBEL ACTIONS WHERE THE PLAINTIFF IS NOT A PUBLIC OFFICIAL.  NOR DO
WE INTIMATE ANY VIEW WHETHER THE CONSTITUTION LIMITS STATE POWER TO
SANCTION PUBLICATION OF MATTER OBTAINED BY AN INTRUSION INTO A
PROTECTED AREA, FOR EXAMPLE, THROUGH THE USE OF ELECTRONIC LISTENING
DEVICES. 

FN10  OF COURSE SPAHN IS NOT BEFORE US AND WE IN NO WISE IMPLY ANY
VIEW OF THE MERITS OF THE JUDGMENT OR REMEDY AFFORDED THE PLAINTIFF IN
THAT CASE.  OUR RELIANCE IS SOLELY ON JUDGE KEATING'S OPINION AS AN AID
TO UNDERSTANDING THE CONSTRUCTION PLACED ON THE STATUTE BY THE NEW YORK
COURTS. 

FN11  WHERE EITHER RESULT FINDS REASONABLE SUPPORT IN THE RECORD IT
IS FOR THE JURY, NOT FOR THIS COURT, TO DETERMINE WHETHER THERE WAS
KNOWING OR RECKLESS FALSEHOOD.  CF.  NEW YORK TIMES CO. V. SULLIVAN,
SUPRA, 284-285. 

FN12  ALTHOUGH THE COURT QUALIFIED THIS INSTRUCTION BY REQUIRING A
FINDING OF "RECKLESS OR WANTON DISREGARD OF THE PLAINTIFFS' RIGHTS" IN
ABSENCE OF A FINDING OF "ACTUAL ILL WILL OR PERSONAL MALICE," THIS
REASONABLY COULD HAVE BEEN TAKEN BY THE JURY TO RELATE, NOT TO TRUTH OR
FALSITY, BUT TO APPELLANT'S ATTITUDE TOWARD APPELLEE'S PRIVACY. 
THEREFORE EVEN THIS INSTRUCTION WOULD HAVE BEEN CONSTITUTIONALLY
INFIRM.  EVEN HAD THE APPELLATE DIVISION NOT FOUND PREJUDICIAL ERROR
AFFECTING THE JURY'S AWARD OF PUNITIVE DAMAGES, THE JUDGMENT BEFORE US
COULD NOT BE SUSTAINED ON THE BASIS OF THE JURY'S FINDING ON THAT
ISSUE. 

FN13  THE APPELLATE DIVISION IN SPAHN V. JULIAN MESSNER, INC., 23
APP. DIV. 2D 216, 220, 260 N.Y.S.2D 451, 454 (1965), STATED THAT THE
CONCEPT OF FICTIONALIZATION RESTED ON A "DISTINCTION BETWEEN AN
INTENTIONALLY FICTIONALIZED TREATMENT AND A STRAIGHT FACTUAL TREATMENT
(SUBJECT TO INADVERTENT OR SUPERFICIAL INACCURACIES)  ...  ."  IN LIGHT
OF THE COURT OF APPEALS OPINION, WE CANNOT ACCEPT THIS AS AN ACCURATE
STATEMENT OF NEW YORK LAW. 

FN14  APPELLANT FURTHER CONTENDS THAT THE THREAT OF CRIMINAL PENALTY
INVALIDATES THE STATUTE.  HOWEVER, THERE HAVE BEEN ONLY TWO CASES OF
CRIMINAL PROCEEDINGS UNDER THE STATUTE AND BOTH RESULTED IN DISMISSAL. 
PEOPLE V. CHARLES SCRIBNER'S SONS, 205 MISC.  818, 130 N.Y.S.2D 514
(1954); PEOPLE V. MCBRIDE & CO., 159 MISC. 5, 288 N.Y. SUPP. 501
(1936).  THERE IS THEREFORE LITTLE REALISTIC THREAT OF PROSECUTION. 
CF. UNITED STATES V. RAINES, 362 U.S. 17, 20-24 (1960). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

I CONCUR IN REVERSAL OF THE JUDGMENT IN THIS CASE BASED ON THE
GROUNDS AND REASONS STATED IN THE COURT'S OPINION.  I DO THIS, HOWEVER,
IN ORDER FOR THE COURT TO BE ABLE AT THIS TIME TO AGREE ON AN OPINION
IN THIS IMPORTANT CASE BASED ON THE PREVAILING CONSTITUTIONAL DOCTRINE
EXPRESSED IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254.  THE COURT'S
OPINION DECIDES THE CASE IN ACCORDANCE WITH THIS DOCTRINE, TO WHICH THE
MAJORITY ADHERE.  IN AGREEING TO THE COURT'S OPINION, I DO NOT RECEDE
FROM ANY OF THE VIEWS I HAVE PREVIOUSLY EXPRESSED ABOUT THE MUCH WIDER
PRESS AND SPEECH FREEDOMS I THINK THE FIRST AND FOURTEENTH AMENDMENTS
WERE DESIGNED TO GRANT TO THE PEOPLE OF THE NATION.  SEE, E.G., NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S., AT 293 (CONCURRING OPINION);
ROSENBLATT V. BAER, 383 U.S. 75, 94 (CONCURRING AND DISSENTING
OPINION). 

                I. 

I ACQUIESCE IN THE APPLICATION HERE OF THE NARROWER CONSTITUTIONAL
VIEW OF NEW YORK TIMES WITH THE BELIEF THAT THIS DOCTRINE TOO IS BOUND
TO PASS AWAY AS ITS APPLICATION TO NEW CASES PROVES ITS INADEQUACY TO
PROTECT FREEDOM OF THE PRESS FROM DESTRUCTION IN LIBEL CASES AND OTHER
CASES LIKE THIS ONE.  THE WORDS "MALICIOUS" AND PARTICULARLY "RECKLESS
DISREGARD OF THE TRUTH" CAN NEVER SERVE AS EFFECTIVE SUBSTITUTES FOR
THE FIRST AMENDMENT WORDS:  "  ...  MAKE NO LAW  ...  ABRIDGING THE
FREEDOM OF SPEECH, OR OF THE PRESS  ...  ."  EXPERIENCE, I THINK, IS
BOUND TO PROVE THAT FIRST AMENDMENT FREEDOMS CAN NO MORE BE PERMANENTLY
DILUTED OR ABRIDGED BY THIS COURT'S ACTION THAN COULD THE SIXTH
AMENDMENT'S GUARANTEE OF RIGHT TO COUNSEL.  I THINK THE FATE THAT
BEFELL BETTS V. BRADY, 316 U.S. 455 (CF. GIDEON V. WAINWRIGHT, 372 U.S.
335), IS ALREADY FORESEEABLE, EVEN IF ONLY DIMLY, FOR THE NEW YORK
TIMES' DILUTION OF FIRST AMENDMENT RIGHTS. 

II. 

I THINK IT NOT INAPPROPRIATE TO ADD THAT IT WOULD BE DIFFICULT, IF
NOT IMPOSSIBLE, FOR THE COURT EVER TO SUSTAIN A JUDGMENT AGAINST TIME
IN THIS CASE WITHOUT USING THE RECENTLY POPULARIZED WEIGHING AND
BALANCING FORMULA.  SOME OF US HAVE POINTED OUT FROM TIME TO TIME THAT
THE FIRST AMENDMENT FREEDOMS COULD NOT POSSIBLY LIVE WITH THE ADOPTION
OF THAT CONSTITUTION-IGNORING-AND-DESTROYING TECHNIQUE,  (FN1) WHEN
THERE ARE, AS HERE, PALPABLE PENALTIES IMPOSED ON SPEECH OR PRESS
SPECIFICALLY BECAUSE OF THE VIEWS THAT ARE SPOKEN OR PRINTED.  THE
PROHIBITIONS OF THE CONSTITUTION WERE WRITTEN TO PROHIBIT CERTAIN
SPECIFIC THINGS, AND ONE OF THE SPECIFIC THINGS PROHIBITED IS A LAW
WHICH ABRIDGES FREEDOM OF THE PRESS.  THAT FREEDOM WAS WRITTEN INTO THE
CONSTITUTION AND THAT CONSTITUTION IS OR SHOULD BE BINDING ON JUDGES AS
WELL AS OTHER PUBLIC OFFICERS.  THE "WEIGHING" DOCTRINE PLAINLY
ENCOURAGES AND ACTUALLY INVITES JUDGES TO CHOOSE FOR THEMSELVES BETWEEN
CONFLICTING VALUES, EVEN WHERE, AS IN THE FIRST AMENDMENT, THE FOUNDERS
MADE A CHOICE OF VALUES, ONE OF WHICH IS A FREE PRESS.  THOUGH THE
CONSTITUTION REQUIRES THAT JUDGES SWEAR TO OBEY AND ENFORCE IT, IT IS
NOT ALTOGETHER STRANGE THAT ALL JUDGES ARE NOT ALWAYS DEAD SET AGAINST
CONSTITUTIONAL INTERPRETATIONS THAT EXPAND THEIR POWERS, AND THAT WHEN
POWER IS ONCE CLAIMED BY SOME, OTHERS ARE LOATH TO GIVE IT UP. 

FINALLY, IF THE JUDICIAL BALANCING CHOICE OF CONSTITUTIONAL CHANGES
IS TO BE ADOPTED BY THIS COURT, I COULD WISH IT HAD NOT STARTED ON THE
FIRST AMENDMENT.  THE FREEDOMS GUARANTEED BY THAT AMENDMENT ARE
ESSENTIAL FREEDOMS IN A GOVERNMENT LIKE OURS.  THAT AMENDMENT WAS
DELIBERATELY WRITTEN IN LANGUAGE DESIGNED TO PUT ITS FREEDOMS BEYOND
THE REACH OF GOVERNMENT TO CHANGE WHILE IT REMAINED UNREPEALED.  (FN2)
IF JUDGES HAVE, HOWEVER, BY THEIR OWN FIAT TODAY CREATED A RIGHT OF
PRIVACY EQUAL TO OR SUPERIOR TO THE RIGHT OF A FREE PRESS THAT THE
CONSTITUTION CREATED, THEN TOMORROW AND THE NEXT DAY AND THE NEXT,
JUDGES CAN CREATE MORE RIGHTS THAT BALANCE AWAY OTHER CHERISHED BILL OF
RIGHTS FREEDOMS.  IF THERE IS ANY ONE THING THAT COULD STRONGLY
INDICATE THAT THE FOUNDERS WERE WRONG IN REPOSING SO MUCH TRUST IN A
FREE PRESS, I WOULD SUGGEST THAT IT WOULD BE FOR THE PRESS ITSELF NOT
TO WAKE UP TO THE GRAVE DANGER TO ITS FREEDOM, INHERENT AND CERTAIN IN
THIS "WEIGHING PROCESS."  LIFE'S CONDUCT HERE WAS AT MOST A MERE
UNDERSTANDABLE AND INCIDENTAL ERROR OF FACT IN REPORTING A NEWSWORTHY
EVENT.  ONE DOES NOT HAVE TO BE A PROPHET TO FORESEE THAT JUDGMENTS
LIKE THE ONE WE HERE REVERSE CAN FRIGHTEN AND PUNISH THE PRESS SO MUCH
THAT PUBLISHERS WILL CEASE TRYING TO REPORT NEWS IN A LIVELY AND
READABLE FASHION AS LONG AS THERE IS - AND THERE ALWAYS WILL BE - DOUBT
AS TO THE COMPLETE ACCURACY OF THE NEWSWORTHY FACTS.  (FN3)  SUCH A
CONSUMMATION HARDLY SEEMS CONSISTENT WITH THE CLEARLY EXPRESSED PURPOSE
OF THE FOUNDERS TO GUARANTEE THE PRESS A FAVORED SPOT IN OUR FREE
SOCIETY. 

FN1  SEE, E.G., IN RE ANASTAPLO, 366 U.S. 82, 97 (DISSENTING
OPINION); BRADEN V. UNITED STATES, 365 U.S. 431, 438 (DISSENTING
OPINION); BARENBLATT V. UNITED STATES, 360 U.S. 109, 140-145
(DISSENTING OPINION). 

FN2  JEFFERSON WROTE THAT THE PURPOSE OF THE FIRST AMENDMENT IS "
...  GUARDING IN THE SAME SENTENCE, AND UNDER THE SAME WORDS, THE
FREEDOM OF RELIGION, OF SPEECH, AND OF THE PRESS:  INSOMUCH, THAT
WHATEVER VIOLATES EITHER, THROWS DOWN THE SANCTUARY WHICH COVERS THE
OTHERS, AND THAT LIBELS, FALSEHOOD, AND DEFAMATION, EQUALLY WITH HERESY
AND FALSE RELIGION, ARE WITHHELD FROM THE COGNIZANCE OF FEDERAL
TRIBUNALS."  8 JEFFERSON, WORKS 464-465 (FORD ED. 1904). 

FN3  SEE, FOR EXAMPLE, CURTIS PUBLISHING CO. V. BUTTS, 351 F.2D 702
($3,000,000 LIBEL JUDGMENT, CUT TO $460,000 ON APPEAL), CERT. GRANTED,
POST, P. 811; ASSOCIATED PRESS V. WALKER, 393 S.W.2D 671 (TEX. CIV.
APP.)($500,000 LIBEL JUDGMENT), CERT. GRANTED, POST, P. 812; NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254 ($500,000 LIBEL JUDGMENT),
REVERSED. 

MR. JUSTICE DOUGLAS, CONCURRING. 

AS INTIMATED IN MY SEPARATE OPINION IN ROSENBLATT V. BAER, 383 U.S.
75, 88, AND IN THE OPINION OF MY BROTHER BLACK IN THE SAME CASE, ID.,
AT 94, STATE ACTION TO ABRIDGE FREEDOM OF THE PRESS IS BARRED BY THE
FIRST AND FOURTEENTH AMENDMENTS WHERE THE DISCUSSION CONCERNS MATTERS
IN THE PUBLIC DOMAIN.  THE EPISODE AROUND WHICH THIS BOOK WAS WRITTEN
HAD BEEN NEWS OF THE DAY FOR SOME TIME.  THE MOST THAT CAN BE SAID IS
THAT THE NOVEL, THE PLAY, AND THE MAGAZINE ARTICLE REVIVED THAT
INTEREST.  A FICTIONALIZED TREATMENT OF THE EVENT IS, IN MY VIEW, AS
MUCH IN THE PUBLIC DOMAIN AS WOULD BE A WATERCOLOR OF THE ASSASSINATION
OF A PUBLIC OFFICIAL.  IT SEEMS TO ME IRRELEVANT TO TALK OF ANY RIGHT
OF PRIVACY IN THIS CONTEXT.  HERE A PRIVATE PERSON IS CATAPULTED INTO
THE NEWS BY EVENTS OVER WHICH HE HAD NO CONTROL.  HE AND HIS ACTIVITIES
ARE THEN IN THE PUBLIC DOMAIN AS FULLY AS THE MATTERS AT ISSUE IN NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254.  SUCH PRIVACY AS A PERSON
NORMALLY HAS CEASES WHEN HIS LIFE HAS CEASED TO BE PRIVATE. 

ONCE WE NARROW THE AMBIT OF THE FIRST AMENDMENT, CREATIVE WRITING IS
IMPERILED AND THE "CHILLING EFFECT" ON FREE EXPRESSION WHICH WE FEARED
IN DOMBROWSKI V. PFISTER, 380 U.S. 479, 487,* IS ALMOST SURE TO TAKE
PLACE.  THAT IS, I FEAR, THE RESULT ONCE WE ALLOW AN EXCEPTION FOR
"KNOWING OR RECKLESS FALSITY."  SUCH AN ELUSIVE EXCEPTION GIVES THE
JURY, THE FINDER OF THE FACTS, BROAD SCOPE AND ALMOST UNFETTERED
DISCRETION.  A TRIAL IS A CHANCY THING, NO MATTER WHAT SAFEGUARDS ARE
PROVIDED.  TO LET A JURY ON THIS RECORD RETURN A VERDICT OR NOT AS IT
CHOOSES IS TO LET FIRST AMENDMENT RIGHTS RIDE ON CAPRICIOUS OR
WHIMSICAL CIRCUMSTANCES, FOR EMOTIONS AND PREJUDICES OFTEN DO CARRY THE
DAY.  THE EXCEPTION FOR "KNOWING OR RECKLESS FALSITY" IS THEREFORE, IN
MY VIEW, AN ABRIDGMENT OF SPEECH THAT IS BARRED BY THE FIRST AND
FOURTEENTH AMENDMENTS.  BUT AS INDICATED IN MY BROTHER BLACK'S OPINION
I HAVE JOINED THE COURT'S OPINION IN ORDER TO MAKE POSSIBLE AN
ADJUDICATION THAT CONTROLS THIS LITIGATION.  CF. MR. JUSTICE RUTLEDGE,
CONCURRING, SCREWS V. UNITED STATES, 325 U.S. 91, 113, 134. 

*AND SEE BAGGETT V. BULLITT, 377 U.S. 360; NAACP V. BUTTON, 371 U.S.
415. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

WHILE I FIND MUCH WITH WHICH I AGREE IN THE OPINION OF THE COURT, I
AM CONSTRAINED TO EXPRESS MY DISAGREEMENT WITH ITS VIEW OF THE PROPER
STANDARD OF LIABILITY TO BE APPLIED ON REMAND.  WERE THE JURY ON
RETRIAL TO FIND NEGLIGENT RATHER THAN, AS THE COURT REQUIRES, RECKLESS
OR KNOWING "FICTIONALIZATION," I THINK THAT FEDERAL CONSTITUTIONAL
REQUIREMENTS WOULD BE MET. 

                                        I. 

THE COURT'S OPINION DEMONSTRATES THAT THE FICTIONALIZATION DOCTRINE
UPON WHICH NEW YORK PREMISES LIABILITY IS ONE WHICH WOULD STRIP
NEWSWORTHY MATERIAL, OTHERWISE PROTECTED, OF ITS CONSTITUTIONAL SHIELD
UPON A MERE SHOWING OF SUBSTANTIAL FALSITY.  I AGREE THAT THE
COMPENSATORY DAMAGE INSTRUCTION GIVEN BY THE TRIAL COURT REQUIRED ONLY
SUCH A DETERMINATION AND A FINDING OF "COMMERCIAL PURPOSE" TO SUSTAIN
LIABILITY.  AND READING THE OPINION OF THE APPELLATE DIVISION IN THE
LIGHT OF OTHER NEW YORK DECISIONS I BELIEVE THAT THIS WAS THE THEORY
UPON WHICH THE JURY FINDING WAS SUSTAINED.  (FN1) TRUE, THE TRIAL COURT
TOLD THE JURY THAT IT MUST FIND THAT THE APPELLANT "ALTERED OR CHANGED
THE TRUE FACTS."  BUT IT DID NOT SPECIFY WHETHER THIS ALTERATION OR
CHANGE WOULD HAVE TO BE RECKLESS OR NEGLIGENT, OR WHETHER INNOCENT
VARIATION FROM THE FACTS AS FOUND BY THE JURY WOULD SUFFICE FOR THE
AWARD OF DAMAGES.  CLEARLY KNOWING FALSIFICATION WAS NOT REQUIRED, FOR
THE COURT REFUSED APPELLANT'S REQUEST TO CHARGE THAT THE JURY MUST FIND
IN ITS FAVOR UNLESS IT FOUND KNOWING FALSIFICATION. 

THE INSTRUCTIONS ON PUNITIVE DAMAGES REQUIRED THE JURY TO FIND AT
LEAST "FAILURE TO MAKE A REASONABLE INVESTIGATION," IN MY VIEW A
CRUCIAL DETERMINATION.  HOWEVER, THE ENTIRE DAMAGE AWARD WAS SET ASIDE
AS EXCESSIVE BY THE APPELLATE DIVISION WHICH FOUND IT UNDULY INFLUENCED
BY INFLAMMATORY EVIDENCE.  ON REMAND FOR RECONSIDERATION OF DAMAGES,
ONLY A COMPENSATORY AWARD WAS MADE.  THIS WAS THE AWARD AFFIRMED BY THE
COURT OF APPEALS IN THE DECISION WE ARE REVIEWING.  WITH THE CASE IN
THIS POSTURE, I DO NOT THINK IT CAN FAIRLY BE SAID THAT THERE HAS BEEN
A BINDING JURY INTERPRETATION OF THE DEGREE OF FAULT INVOLVED IN THE
FICTIONALIZATION AND I AGREE WITH THE COURT THAT THE CONDUCT INVOLVED
WOULD BEAR A VARIETY OF INTERPRETATIONS.    LIKE THE COURT, I CONSIDER
THAT ONLY A NARROW PROBLEM IS PRESENTED BY THESE FACTS.  TO ME THIS IS
NOT "PRIVACY" LITIGATION IN ITS TRUEST SENSE.  SEE PROSSER, LAW OF
TORTS SEC. 112; SILVER, PRIVACY AND THE FIRST AMENDMENT, 34 FORD.  L.
REV. 553; BUT SEE BLOUSTEIN, PRIVACY AS AN ASPECT OF HUMAN DIGNITY:  AN
ANSWER TO DEAN PROSSER, 39 N.Y.U.L. REV. 962.  NO CLAIM IS MADE THAT
THERE WAS ANY INTRUSION UPON THE HILLS' SOLITUDE OR PRIVATE AFFAIRS IN
ORDER TO OBTAIN INFORMATION FOR PUBLICATION.  THE POWER OF A STATE TO
CONTROL AND REMEDY SUCH INTRUSION FOR NEWSGATHERING PURPOSES CANNOT BE
DENIED, CF. MAPP V. OHIO, 367 U.S. 643, BUT IS NOT HERE ASSERTED. 
SIMILARLY IT MAY BE STRONGLY CONTENDED THAT CERTAIN FACTS ARE OF SUCH
LIMITED PUBLIC INTEREST AND SO INTIMATE AND POTENTIALLY EMBARRASSING TO
AN INDIVIDUAL THAT THE STATE MAY EXERCISE ITS POWER TO DETER
PUBLICATION.  FEENEY V. YOUNG, 191 APP. DIV. 501, 181 N.Y. SUPP. 481;
SEE SIDIS V. F-R PUB. CORP., 113 F.2D 806, 808.  BUT THE INSTRUCTIONS
TO THE JURY, THE OPINIONS IN THE NEW YORK APPELLATE COURTS, AND INDEED
THE ARGUMENTS ADVANCED BY BOTH SIDES BEFORE THIS COURT ALL RECOGNIZE
THAT THE THEME OF THE ARTICLE IN QUESTION WAS A PERFECTLY PROPER ONE
AND THAT AN ARTICLE OF THIS TYPE COULD HAVE BEEN PREPARED WITHOUT
LIABILITY.  WINTERS V. NEW YORK, 333 U.S. 507, 510.  THE RECORD IS
REPLETE WITH ARTICLES COMMENTING ON THE GENESIS OF THE DESPERATE HOURS,
ONE OF WHICH WAS PREPARED BY THE AUTHOR HIMSELF AND USED BY APPELLEE TO
DEMONSTRATE THE SUPPOSED FALSITY OF THE LIFE PIECE.  FINALLY NO CLAIM
IS MADE THAT APPELLANT PUBLISHED THE ARTICLE TO ADVANCE A COMMERCIAL
INTEREST IN THE PLAY.  THERE IS NO EVIDENCE TO SHOW THAT TIME, INC.,
HAD ANY FINANCIAL INTEREST IN THE PRODUCTION OR EVEN THAT THE ARTICLE
WAS PUBLISHED AS AN ADVERTISEMENT.  THUS THE QUESTION WHETHER A STATE
MAY APPLY MORE STRINGENT LIMITATIONS TO THE USE OF THE PERSONALITY IN
"PURELY COMMERCIAL ADVERTISING" IS NOT BEFORE THE COURT.  SEE VALENTINE
V. CHRESTENSEN, 316 U.S. 52. 

                               II. 

HAVING COME THIS FAR IN STEP WITH THE COURT'S OPINION, I MUST PART
COMPANY WITH ITS SWEEPING EXTENSION OF THE PRINCIPLES OF NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S. 254.  IT WAS ESTABLISHED IN NEW YORK TIMES
THAT MERE FALSITY WILL NOT SUFFICE TO REMOVE CONSTITUTIONAL PROTECTION
FROM PUBLISHED MATTER RELATING TO THE CONDUCT OF A PUBLIC OFFICIAL THAT
IS OF PUBLIC CONCERN.  BUT THAT DECISION AND THOSE IN WHICH THE COURT
HAS DEVELOPED ITS DOCTRINE, ROSENBLATT V. BAER, 383 U.S. 75, GARRISON
V. LOUISIANA, 379 U.S. 64, HAVE NEVER FOUND INDEPENDENT VALUE IN FALSE
PUBLICATIONS  (FN2) NOR ANY REASON FOR THEIR PROTECTION EXCEPT TO ADD
TO THE PROTECTION OF TRUTHFUL COMMUNICATION.  AND THE COURT HAS BEEN
QUICK TO NOTE THAT WHERE PRIVATE ACTIONS ARE INVOLVED THE SOCIAL
INTEREST IN INDIVIDUAL PROTECTION FROM FALSITY MAY BE SUBSTANTIAL. 
ROSENBLATT V. BAER, SUPRA, AT 86-87, N. 13.  THUS I BELIEVE THAT
RIGOROUS SCRUTINY OF THE PRINCIPLES UNDERLYING THE REJECTION OF THE
MERE FALSITY CRITERION AND THE IMPOSITION OF ANCILLARY SAFEGUARDS, AS
WELL AS THE INTEREST WHICH THE STATE SEEKS TO PROTECT, IS NECESSARY TO
REACH A PROPER RESOLUTION OF THIS CASE. 

TWO ESSENTIAL PRINCIPLES SEEM TO UNDERLIE THE COURT'S REJECTION OF
THE MERE FALSITY CRITERION IN NEW YORK TIMES.  THE FIRST IS THE
INEVITABILITY OF SOME ERROR IN THE SITUATION PRESENTED IN FREE DEBATE
ESPECIALLY WHEN ABSTRACT MATTERS ARE UNDER CONSIDERATION.  CERTAINLY
THAT IS ILLUSTRATED HERE IN THE DIFFICULTY TO BE ENCOUNTERED IN MAKING
A PRECISE DESCRIPTION OF THE RELATIONSHIP BETWEEN THE HILL INCIDENT AND
THE DESPERATE HOURS.  THE SECOND IS THE COURT'S RECOGNITION THAT IN
MANY AREAS WHICH ARE AT THE CENTER OF PUBLIC DEBATE "TRUTH" IS NOT A
READILY IDENTIFIABLE CONCEPT, AND PUTTING TO THE PRE-EXISTING
PREJUDICES OF A JURY THE DETERMINATION OF WHAT IS "TRUE" MAY
EFFECTIVELY INSTITUTE A SYSTEM OF CENSORSHIP.  ANY NATION WHICH COUNTS
THE SCOPES TRIAL AS PART OF ITS HERITAGE CANNOT SO READILY EXPOSE IDEAS
TO SANCTIONS ON A JURY FINDING OF FALSITY.  SEE CANTWELL V.
CONNECTICUT, 310 U.S. 296, 310.  "THE MARKETPLACE OF IDEAS" WHERE IT
FUNCTIONS STILL REMAINS THE BEST TESTING GROUND FOR TRUTH. 

BUT THESE ARGUMENTS AGAINST SUPPRESSING WHAT IS FOUND TO BE "FALSE"
ON THAT GROUND ALONE DO NOT NEGATIVE A STATE'S INTEREST IN ENCOURAGING
THE PUBLICATION OF WELL RESEARCHED MATERIALS MORE LIKELY TO BE TRUE. 
CERTAINLY IT IS WITHIN THE POWER OF THE STATE TO USE POSITIVE MEANS -
THE PROVISION OF FACILITIES  (FN3) AND TRAINING OF STUDENTS  (FN4) - TO
FURTHER THIS END.  THE ISSUE PRESENTED IN THIS CASE IS THE
CONSTITUTIONALITY OF A STATE'S EMPLOYMENT OF SANCTIONS TO ACCOMPLISH
THAT SAME GOAL.  THE COURT ACKNOWLEDGES THAT SANCTIONS MAY BE EMPLOYED
AGAINST KNOWING OR RECKLESS FALSEHOODS BUT WOULD SEEM TO GRANT A
"TALISMANIC IMMUNITY" TO ALL UNINTENTIONAL ERRORS.  HOWEVER, THE
DISTINCTION BETWEEN THE FACTS PRESENTED TO US HERE AND THE SITUATION AT
ISSUE IN THE NEW YORK TIMES CASE AND ITS PROGENY CASTS SERIOUS DOUBT ON
THAT GRANT OF IMMUNITY AND CALLS FOR A MORE LIMITED "BREATHING SPACE"
THAN THAT GRANTED IN CRITICISM OF PUBLIC OFFICIALS. 

FIRST, WE CANNOT AVOID RECOGNIZING THAT WE HAVE ENTERED AN AREA WHERE
THE "MARKETPLACE OF IDEAS" DOES NOT FUNCTION AND WHERE CONCLUSIONS
PREMISED ON THE EXISTENCE OF THAT EXCHANGE ARE APT TO BE SUSPECT.  IN
ROSENBLATT V. BAER, SUPRA, THE COURT MADE THE NEW YORK TIMES RATIONALE
OPERATIVE WHERE "THE PUBLIC HAS AN INDEPENDENT INTEREST IN THE
QUALIFICATIONS AND PERFORMANCE OF THE PERSON WHO HOLDS IT (GOVERNMENT
POSITION), BEYOND THE GENERAL PUBLIC INTEREST IN THE QUALIFICATIONS AND
PERFORMANCE OF ALL GOVERNMENT EMPLOYEES  ...  ."  ID., AT 86.  IN
ELABORATION THE COURT SAID:  "THE EMPLOYEE'S POSITION MUST BE ONE WHICH
WOULD INVITE PUBLIC SCRUTINY AND DISCUSSION OF THE PERSON HOLDING IT,
ENTIRELY APART FROM THE SCRUTINY AND DISCUSSION OCCASIONED BY THE
PARTICULAR CHARGES IN CONTROVERSY."  ID., AT 87, N. 13.  TO ME THIS
SEEMS A CLEAR RECOGNITION OF THE FACT THAT FALSEHOOD IS MORE EASILY
TOLERATED WHERE PUBLIC ATTENTION CREATES THE STRONG LIKELIHOOD OF A
COMPETITION AMONG IDEAS.  HERE SUCH COMPETITION IS EXTREMELY UNLIKELY
FOR THE SCRUTINY AND DISCUSSION OF THE RELATIONSHIP OF THE HILL
INCIDENT AND THE PLAY IS "OCCASIONED BY THE PARTICULAR CHARGES IN
CONTROVERSY" AND THE MATTER IS NOT ONE IN WHICH THE PUBLIC HAS AN
"INDEPENDENT INTEREST."  IT WOULD BE UNREASONABLE TO ASSUME THAT MR.
HILL COULD FIND A FORUM FOR MAKING A SUCCESSFUL REFUTATION OF THE LIFE
MATERIAL OR THAT THE PUBLIC'S INTEREST IN IT WOULD BE SUFFICIENT FOR
THE TRUTH TO WIN OUT BY COMPARISON AS IT MIGHT IN THAT AREA OF
DISCUSSION CENTRAL TO A FREE SOCIETY.  THUS THE STATE INTEREST IN
ENCOURAGING CAREFUL CHECKING AND PREPARATION OF PUBLISHED MATERIAL IS
FAR STRONGER THAN IN NEW YORK TIMES.  THE DANGERS OF UNCHALLENGEABLE
UNTRUTH ARE FAR TOO WELL DOCUMENTED TO BE SUMMARILY DISMISSED.  (FN5) 

SECOND, THERE IS A VAST DIFFERENCE IN THE STATE INTEREST IN
PROTECTING INDIVIDUALS LIKE MR. HILL FROM IRRESPONSIBLY PREPARED
PUBLICITY AND THE STATE INTEREST IN SIMILAR PROTECTION FOR A PUBLIC
OFFICIAL.  IN NEW YORK TIMES WE ACKNOWLEDGED PUBLIC OFFICIALS TO BE A
BREED FROM WHOM HARDINESS TO EXPOSURE TO CHARGES, INNUENDOES, AND
CRITICISMS MIGHT BE DEMANDED AND WHO VOLUNTARILY ASSUMED THE RISK OF
SUCH THINGS BY ENTRY INTO THE PUBLIC ARENA.  376 U.S., AT 273.  BUT MR.
HILL CAME TO PUBLIC ATTENTION THROUGH AN UNFORTUNATE CIRCUMSTANCE NOT
OF HIS MAKING RATHER THAN HIS VOLUNTARY ACTIONS AND HE CAN IN NO SENSE
BE CONSIDERED TO HAVE "WAIVED" ANY PROTECTION THE STATE MIGHT
JUSTIFIABLY AFFORD HIM FROM IRRESPONSIBLE PUBLICITY.  NOT BEING INURED
TO THE VICISSITUDES OF JOURNALISTIC SCRUTINY SUCH AN INDIVIDUAL IS MORE
EASILY INJURED AND HIS MEANS OF SELF-DEFENSE ARE MORE LIMITED.  THE
PUBLIC IS LESS LIKELY TO VIEW WITH NORMAL SKEPTICISM WHAT IS WRITTEN
ABOUT HIM BECAUSE IT IS NOT ACCUSTOMED TO SEEING HIS NAME IN THE PRESS
AND EXPECTS ONLY A DISINTERESTED REPORT. 

THE COINCIDENCE OF THESE FACTORS IN THIS SITUATION LEADS ME TO THE
VIEW THAT A STATE SHOULD BE FREE TO HOLD THE PRESS TO A DUTY OF MAKING
A REASONABLE INVESTIGATION OF THE UNDERLYING FACTS AND LIMITING ITSELF
TO "FAIR COMMENT"  (FN6) ON THE MATERIALS SO GATHERED.  THEORETICALLY,
OF COURSE, SUCH A RULE MIGHT SLIGHTLY LIMIT PRESS DISCUSSION OF MATTERS
TOUCHING INDIVIDUALS LIKE MR. HILL.  BUT, FROM A PRAGMATIC STANDPOINT,
UNTIL NOW THE PRESS, AT LEAST IN NEW YORK, LABORED UNDER THE MORE
EXACTING HANDICAP OF THE EXISTING NEW YORK PRIVACY LAW AND HAS
CERTAINLY REMAINED ROBUST.  OTHER PROFESSIONAL ACTIVITY OF GREAT SOCIAL
VALUE IS CARRIED ON UNDER A DUTY OF REASONABLE CARE  (FN7) AND THERE IS
NO REASON TO SUSPECT THE PRESS WOULD BE LESS HARDY THAN MEDICAL
PRACTITIONERS OR ATTORNEYS FOR EXAMPLE.  THE "FREEDOM OF THE PRESS"
GUARANTEED BY THE FIRST AMENDMENT, AND AS REFLECTED IN THE FOURTEENTH,
CANNOT BE THOUGHT TO INSULATE ALL PRESS CONDUCT FROM REVIEW AND
RESPONSIBILITY FOR HARM INFLICTED.  (FN8)  THE MAJORITY WOULD ALLOW
SANCTIONS AGAINST SUCH CONDUCT ONLY WHEN IT IS MORALLY CULPABLE.  I
INSIST THAT IT CAN ALSO BE REACHED WHEN IT CREATES A SEVERE RISK OF
IRREMEDIABLE HARM TO INDIVIDUALS INVOLUNTARILY EXPOSED TO IT AND
POWERLESS TO PROTECT THEMSELVES AGAINST IT.  I WOULD REMAND THE CASE TO
THE NEW YORK COURTS FOR POSSIBLE RETRIAL UNDER THAT PRINCIPLE. 

A CONSTITUTIONAL DOCTRINE WHICH RELIEVES THE PRESS OF EVEN THIS
MINIMAL RESPONSIBILITY IN CASES OF THIS SORT SEEMS TO ME UNNECESSARY
AND ULTIMATELY HARMFUL TO THE PERMANENT GOOD HEALTH OF THE PRESS
ITSELF.  IF THE NEW YORK TIMES CASE HAS USHERED IN SUCH A TREND IT WILL
PROVE IN ITS LONG-RANGE IMPACT TO HAVE DONE A DISSERVICE TO THE TRUE
VALUES ENCOMPASSED IN THE FREEDOMS OF SPEECH AND PRESS. 

FN1  THE MAJORITY IN THE NEW YORK APPELLATE DIVISION DENIED THAT THE
ARTICLE COULD "BE CHARACTERIZED AS A MERE DISSEMINATION OF NEWS, NOR
EVEN AN EFFORT TO SUPPLY LEGITIMATE NEWSWORTHY INFORMATION  ...  ." 
THEY ADDED THAT "POINTS OF SIMILARITY IN THE BOOK AND THE OCCURRENCE
... JUSTIFIED NEITHER THE IDENTIFICATION NOR THE COMMERCIAL
EXPLOITATION OF PLAINTIFFS' NAME AND FAMILY WITH THE PLAY."  JUSTICE
RABIN, CONCURRING, AGREED THAT THE SUBJECT COULD HAVE BEEN PRESENTED
WITHOUT LIABILITY "ALBEIT THE PRESENTATION OF SUCH NEWSWORTHY MATERIAL
INCREASES THE PUBLISHER'S CIRCULATION."  THE NEW YORK COURT OF APPEALS
AFFIRMED "ON THE MAJORITY AND CONCURRING OPINIONS AT THE APPELLATE
DIVISION."  THE DECISION BELOW SEEMS TO HAVE AMPLE SUPPORT IN NEW YORK
LAW.  SEE, E.G., SPAHN V. JULIAN MESSNER, INC., 18 N.Y.2D 324, 221
N.E.2D 543; BINNS V. VITAGRAPH CO., 147 APP. DIV. 783, 132 N.Y. SUPP.
237, AFF'D, 210 N.Y. 51, 103 N.E. 1108; YOUSSOUPOFF V. CBS, INC., 41
MISC. 2D 42, 244 N.Y.S.2D 701, AFF'D, 19 APP. DIV. 2D 865, 244 N.Y.S.2D
1; KOUSSEVITZKY V. ALLEN, TOWNE & HEATH, INC., 188 MISC. 479, 68
N.Y.S.2D 779, AFF'D, 272 APP. DIV. 759, 69 N.Y.S.2D 432. 

FN2  THE PASSAGE FROM GARRISON V. LOUISIANA, SUPRA, QUOTED IN THE
OPINION OF THE COURT MAKES CLEAR THAT THE ONLY INTEREST IN PROTECTING
FALSEHOOD IS TO GIVE ADDED "BREATHING SPACE" TO TRUTH.  IT IS
UNDENIABLE THAT FALSITY MAY BE PUBLISHED, ESPECIALLY IN THE POLITICAL
ARENA, WITH WHAT MAY BE CONSIDERED "GOOD" MOTIVES - FOR EXAMPLE A GOOD
FAITH BELIEF IN THE ABSOLUTE NECESSITY OF DEFEATING AN "EVIL"
CANDIDATE.  BUT THE COURT DOES NOT REMOVE STATE POWER TO CONTROL SUCH
CONDUCT, THUS UNDERLINING THE STRONG SOCIAL INTEREST IN DISCOURAGING
FALSE PUBLICATION. 

FN3  THUS THE STATE MAY TAKE LAND FOR THE CONSTRUCTION OF LIBRARY
FACILITIES.  E.G., HAYFORD V. BANGOR, 102 ME. 340, 66 A. 731; LAIRD V.
PITTSBURG, 205 PA. 1, 54 A. 324. 

FN4  THUS MANY STATE UNIVERSITIES HAVE PROFESSIONAL SCHOOLS OF
JOURNALISM.  SEE 3 DEPARTMENT OF HEALTH, EDUC.  & WELFARE, EDUCATION
DIRECTORY - HIGHER EDUCATION. 

FN5  SEE RIESMAN, DEMOCRACY AND DEFAMATION:  FAIR GAME AND FAIR
COMMENT I, 42 COL. L. REV.  1085; BEAUHARNAIS V. ILLINOIS, 343 U.S.
250; STATE V. KLAPPROTT, 127 N.J.L. 395, 22 A.2D 877.  AND DESPITE THE
COURT'S DENIAL THAT THE OPPORTUNITY FOR REBUTTAL IS GERMANE, IT MUST BE
THE CIRCULATION OF FALSITY AND THE HARM STEMMING FROM IT WHICH LEAD THE
COURT TO ALLOW THE IMPOSITION OF LIABILITY AT ALL.  FOR THE COURT FINDS
THE SUBJECT OF THE LIFE ARTICLE "A MATTER OF PUBLIC INTEREST."  AND IT
STATES THAT "EXPOSURE OF THE SELF TO OTHERS IN VARYING DEGREES IS A
CONCOMITANT OF LIFE IN A CIVILIZED COMMUNITY."  THUS IT COULD NOT
PERMIT NEW YORK TO ALLOW COMPENSATION FOR MERE EXPOSURE UNLESS IT IS
HOLDING, AS I AM SURE IT IS NOT, THAT THE PRESENCE OF SOME RECKLESS
FALSEHOOD IN WRITTEN MATERIAL STRIPS IT OF ALL CONSTITUTIONAL
PROTECTION.  THE COURT'S SUGGESTION THAT MR. HILL MIGHT NOT BE ANXIOUS
TO REBUT THE FALSEHOOD BECAUSE IT MIGHT INCREASE HIS HARM FROM EXPOSURE
IS EQUALLY APPLICABLE TO LIBEL ACTIONS WHERE THE OPPORTUNITY TO REBUT
MAY BE LIMITED BY FEAR OF REITERATING THE LIBEL.  AND THIS FACTOR
EMPHASIZES, RATHER THAN LESSENS, THE STATE INTEREST IN DISCOURAGING
FALSEHOOD FOR IT INCREASES THE LIKELIHOOD THAT FALSITY WILL CONTINUE TO
CIRCULATE TO THE DETRIMENT OF SOME WHEN TRUTH SHOULD BE ENCOURAGED "FOR
THE BENEFIT OF ALL OF US." 

FN6  A NEGLIGENCE STANDARD HAS BEEN APPLIED IN LIBEL ACTIONS BOTH
WHERE THE UNDERLYING FACTS ARE ALLEGED TO BE LIBELOUS, LAYNE V. TRIBUNE
CO., 108 FLA. 177, 146 SO. 234, AND WHERE COMMENT IS THE SUBJECT OF THE
ACTION, CLANCY V. DAILY NEWS CORP., 202 MINN. 1, 277 N.W. 264. 
SIMILARLY THE PRESS SHOULD NOT BE CONSTITUTIONALLY INSULATED FROM
PRIVACY ACTIONS BROUGHT BY PARTIES IN THE POSITION OF MR. HILL WHEN
REASONABLE CARE HAS NOT BEEN TAKEN IN ASCERTAINING OR COMMUNICATING THE
UNDERLYING FACTS OR WHERE THE PUBLISHER HAS NOT KEPT WITHIN THE
TRADITIONAL BOUNDARIES OF "FAIR COMMENT" WITH RELATION TO UNDERLYING
FACTS AND HONEST OPINION.  SEE PROSSER, LAW OF TORTS SEC 110, AT 815
816.  SIMILAR STANDARDS OF REASONABLE INVESTIGATION AND PRESENTATION
HAVE LONG BEEN APPLIED IN MISREPRESENTATION CASES.  SEE, E.G.,
INTERNATIONAL PRODUCTS CO. V. ERIE R. CO., 244 N.Y. 331, 155 N.E. 662;
NASH V. MINNESOTA TITLE INS. & TRUST CO., 163 MASS. 574, 40 N.E. 1039. 
UNDER SUCH A STANDARD THE FACT THAT THE PUBLICATION INVOLVED IN THIS
CASE WAS NOT DEFAMATORY WOULD ENTER INTO A DETERMINATION OF THE AMOUNT
OF CARE WHICH WOULD HAVE BEEN REASONABLE IN THE PREPARATION OF THE
ARTICLE. 

FN7  SEE, E.G., MCCOID, THE CARE REQUIRED OF MEDICAL PRACTITIONERS,
12 VAND.  L. REV.  549; WADE, THE ATTORNEY'S LIABILITY FOR NEGLIGENCE,
12 VAND.  L. REV. 755.  IT MAY BE ARGUED THAT OTHER PROFESSIONS ARE
DISTINGUISHABLE BECAUSE PRACTITIONERS MAY INSURE AGAINST LIABILITY. 
BUT THIS COURSE IS ALSO OPEN TO THE PRESS.  DEVELOPMENTS IN THE LAW,
DEFAMATION, 69 HARV. L. REV. 875, 906. 

FN8  THIS COURT HAS NEVER HELD THAT THE PRESS HAS AN ABSOLUTE
PRIVILEGE TO PUBLISH FALSITY.  THERE IS NOTHING IN THE HISTORY OF THE
FIRST AMENDMENT, OR THE FOURTEENTH, TO INDICATE THAT THE AUTHORS
CONTEMPLATED RESTRICTIONS ON THE ABILITY OF PRIVATE PERSONS TO SEEK
LEGAL REDRESS FOR PRESS-INFLICTED INJURY.  SEE GENERALLY LEVY, LEGACY
OF SUPPRESSION; DUNIWAY, THE DEVELOPMENT OF FREEDOM OF THE PRESS IN
MASSACHUSETTS.  THE FOUNDERS REJECTED AN ATTEMPT BY MADISON TO ADD TO
ART. I, SEC 10, A GUARANTEE OF FREEDOM OF THE PRESS AGAINST STATE
ACTION.  THE MAIN ARGUMENT ADVANCED AGAINST IT WAS THAT IT WOULD UNDULY
INTERFERE WITH THE PROPER POWERS OF THE STATES.  SEE 5 MADISON'S
WRITINGS 378 (HUNT ED.); 1 ANNALS OF CONG. 756. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE CLARK
JOIN, DISSENTING. 

THE COURT'S HOLDING HERE IS EXCEEDINGLY NARROW.  IT DECLINES TO HOLD
THAT THE NEW YORK "RIGHT OF PRIVACY" STATUTE IS UNCONSTITUTIONAL.  I
AGREE.  THE COURT CONCLUDES, HOWEVER, THAT THE INSTRUCTIONS TO THE JURY
IN THIS CASE WERE FATALLY DEFECTIVE BECAUSE THEY FAILED TO ADVISE THE
JURY THAT A VERDICT FOR THE PLAINTIFFS COULD BE PREDICATED ONLY ON A
FINDING OF KNOWING OR RECKLESS FALSITY IN THE PUBLICATION OF THE LIFE
ARTICLE.  PRESUMABLY, THE APPELLEE IS ENTITLED TO A NEW TRIAL.  IF HE
CAN STAND THE EMOTIONAL AND FINANCIAL BURDEN, THERE IS REASON TO HOPE
THAT HE WILL RECOVER DAMAGES FOR THE RECKLESS AND IRRESPONSIBLE ASSAULT
UPON HIMSELF AND HIS FAMILY WHICH THIS ARTICLE REPRESENTS.  BUT HE HAS
LITIGATED THIS CASE FOR 11 YEARS.  HE SHOULD NOT BE SUBJECTED TO THE
BURDEN OF A NEW TRIAL WITHOUT SIGNIFICANT CAUSE.  THIS DOES NOT EXIST. 
PERHAPS THE PURPOSE OF THE DECISION HERE IS TO INDICATE THAT THIS COURT
WILL PLACE INSUPERABLE OBSTACLES IN THE WAY OF RECOVERY BY PERSONS WHO
ARE INJURED BY RECKLESS AND HEEDLESS ASSAULTS PROVIDED THEY ARE IN
PRINT, AND EVEN THOUGH THEY ARE TOTALLY DIVORCED FROM FACT.  IF SO, I
SHOULD THINK THAT THE COURT WOULD CAST ITS DECISION IN CONSTITUTIONAL
TERMS.  SHORT OF THAT PURPOSE, WITH WHICH I WOULD STRONGLY DISAGREE,
THERE IS NO REASON HERE TO ORDER A NEW TRIAL.  THE INSTRUCTIONS IN THIS
CASE ARE ACCEPTABLE EVEN WITHIN THE PRINCIPLES TODAY ANNOUNCED BY THE
COURT. 

I FULLY AGREE WITH THE VIEWS OF MY BRETHREN WHO HAVE STRESSED THE
NEED FOR A GENEROUS CONSTRUCTION OF THE FIRST AMENDMENT.  I, TOO,
BELIEVE THAT FREEDOM OF THE PRESS, OF SPEECH, ASSEMBLY, AND RELIGION,
AND THE FREEDOM TO PETITION ARE OF THE ESSENCE OF OUR LIBERTY AND
FUNDAMENTAL TO OUR VALUES.  SEE, E.G., BROWN V. LOUISIANA, 383 U.S. 131
(1966).  I AGREE WITH THE STATEMENT OF MY BROTHER BRENNAN, SPEAKING FOR
THE COURT IN N.A.A.C.P. V. BUTTON, 371 U.S. 415, 433 (1963), THAT
"THESE FREEDOMS ARE DELICATE AND VULNERABLE, AS WELL AS SUPREMELY
PRECIOUS IN OUR SOCIETY."  BUT I DO NOT BELIEVE THAT WHATEVER IS IN
WORDS, HOWEVER MUCH OF AN AGGRESSION IT MAY BE UPON INDIVIDUAL RIGHTS,
IS BEYOND THE REACH OF THE LAW, NO MATTER HOW HEEDLESS OF OTHERS'
RIGHTS - HOW REMOTE FROM PUBLIC PURPOSE, HOW RECKLESS, IRRESPONSIBLE,
AND UNTRUE IT MAY BE.  I DO NOT BELIEVE THAT THE FIRST AMENDMENT
PRECLUDES EFFECTIVE PROTECTION OF THE RIGHT OF PRIVACY - OR, FOR THAT
MATTER, AN EFFECTIVE LAW OF LIBEL.  I DO NOT BELIEVE THAT WE MUST OR
SHOULD, IN DEFERENCE TO THOSE WHOSE VIEWS ARE ABSOLUTE AS TO THE SCOPE
OF THE FIRST AMENDMENT, BE INGENIOUS TO STRIKE DOWN ALL STATE ACTION,
HOWEVER CIRCUMSPECT, WHICH PENALIZES THE USE OF WORDS AS INSTRUMENTS OF
AGGRESSION AND PERSONAL ASSAULT.  THERE ARE GREAT AND IMPORTANT VALUES
IN OUR SOCIETY, NONE OF WHICH IS GREATER THAN THOSE REFLECTED IN THE
FIRST AMENDMENT, BUT WHICH ARE ALSO FUNDAMENTAL AND ENTITLED TO THIS
COURT'S CAREFUL RESPECT AND PROTECTION.  AMONG THESE IS THE RIGHT TO
PRIVACY, WHICH HAS BEEN ELOQUENTLY EXTOLLED BY SCHOLARS AND MEMBERS OF
THIS COURT.  JUDGE COOLEY LONG AGO REFERRED TO THIS RIGHT AS THE RIGHT
"TO BE LET ALONE."  (FN1)  IN 1890, WARREN AND BRANDEIS PUBLISHED THEIR
FAMOUS ARTICLE "THE RIGHT TO PRIVACY," IN WHICH THEY ELOQUENTLY ARGUED
THAT THE "EXCESSES" OF THE PRESS IN "OVERSTEPPING IN EVERY DIRECTION
THE OBVIOUS BOUNDS OF PROPRIETY AND OF DECENCY" MADE IT ESSENTIAL THAT
THE LAW RECOGNIZE A RIGHT TO PRIVACY, DISTINCT FROM TRADITIONAL
REMEDIES FOR DEFAMATION, TO PROTECT PRIVATE INDIVIDUALS AGAINST THE
UNJUSTIFIABLE INFLICTION OF MENTAL PAIN AND DISTRESS.  (FN2)  A
DISTINCT RIGHT OF PRIVACY IS NOW RECOGNIZED, EITHER AS A "COMMON-LAW"
RIGHT OR BY STATUTE, IN AT LEAST 35 STATES.  (FN3)  ITS EXACT SCOPE
VARIES IN THE RESPECTIVE JURISDICTIONS.  IT IS, SIMPLY STATED, THE
RIGHT TO BE LET ALONE; TO LIVE ONE'S LIFE AS ONE CHOOSES, FREE FROM
ASSAULT, INTRUSION OR INVASION EXCEPT AS THEY CAN BE JUSTIFIED BY THE
CLEAR NEEDS OF COMMUNITY LIVING UNDER A GOVERNMENT OF LAW.  AS MR.
JUSTICE BRANDEIS SAID IN HIS FAMOUS DISSENT IN OLMSTEAD V. UNITED
STATES, 277 U.S. 438, 478 (1928), THE RIGHT OF PRIVACY IS "THE MOST
COMPREHENSIVE OF RIGHTS AND THE RIGHT MOST VALUED BY CIVILIZED MEN." 

THIS COURT HAS REPEATEDLY RECOGNIZED THIS PRINCIPLE.  AS EARLY AS
1886, IN BOYD V. UNITED STATES, 116 U.S. 616, 630, THIS COURT HELD THAT
THE DOCTRINES OF THE FOURTH AND FIFTH AMENDMENTS "APPLY TO ALL
INVASIONS ON THE PART OF THE GOVERNMENT AND ITS EMPLOYES OF THE
SANCTITY OF A MAN'S HOME AND THE PRIVACIES OF LIFE.  IT IS NOT THE
BREAKING OF HIS DOORS, AND THE RUMMAGING OF HIS DRAWERS, THAT
CONSTITUTES THE ESSENCE OF THE OFFENCE; BUT IT IS THE INVASION OF HIS
INDEFEASIBLE RIGHT OF PERSONAL SECURITY, PERSONAL LIBERTY AND PRIVATE
PROPERTY  ...  ." 

IN 1949, THE COURT, IN WOLF V. COLORADO, 338 U.S. 25, 28-29,
DESCRIBED THE IMMUNITY FROM UNREASONABLE SEARCH AND SEIZURE IN TERMS OF
"THE RIGHT OF PRIVACY."  (FN4) 

THEN, IN THE LANDMARK CASE OF MAPP V. OHIO, 367 U.S. 643 (1961), THIS
COURT REFERRED TO "THE RIGHT TO PRIVACY," "NO LESS IMPORTANT THAN ANY
OTHER RIGHT CAREFULLY AND PARTICULARLY RESERVED TO THE PEOPLE," AS
"BASIC TO A FREE SOCIETY."  ID., AT 656.  MR. JUSTICE CLARK, SPEAKING
FOR THE COURT, REFERRED TO "THE FREEDOM FROM UNCONSCIONABLE INVASIONS
OF PRIVACY" AS INTIMATELY RELATED TO THE FREEDOM FROM CONVICTIONS BASED
UPON COERCED CONFESSIONS.  HE SAID THAT BOTH SERVED THE CAUSE OF
PERPETUATING "PRINCIPLES OF HUMANITY AND CIVIL LIBERTY (SECURED)  ...
ONLY AFTER YEARS OF STRUGGLE."  ID., AT 657, QUOTING FROM BRAM V.
UNITED STATES, 168 U.S. 532, 544 (1897).  HE SAID THAT THEY EXPRESS
"SUPPLEMENTING PHASES OF THE SAME CONSTITUTIONAL PURPOSE - TO MAINTAIN
INVIOLATE LARGE AREAS OF PERSONAL PRIVACY."  IBID., QUOTING FROM
FELDMAN V. UNITED STATES, 322 U.S. 487, 489-490 (1944). 

IN GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965), THE COURT HELD
UNCONSTITUTIONAL A STATE LAW UNDER WHICH PETITIONERS WERE PROSECUTED
FOR GIVING MARRIED PERSONS INFORMATION AND MEDICAL ADVICE ON THE USE OF
CONTRACEPTIVES.  THE HOLDING WAS SQUARELY BASED UPON THE RIGHT OF
PRIVACY WHICH THE COURT DERIVED BY IMPLICATION FROM THE SPECIFIC
GUARANTEES OF THE BILL OF RIGHTS.   CITING A NUMBER OF PRIOR CASES, THE
COURT (PER DOUGLAS, J.)  HELD THAT "THESE CASES BEAR WITNESS THAT THE
RIGHT OF PRIVACY WHICH PRESSES FOR RECOGNITION HERE IS A LEGITIMATE
ONE."  ID., AT 485.  AS STATED IN THE CONCURRING OPINION OF MR. JUSTICE
GOLDBERG, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE BRENNAN JOINED:
"THE RIGHT OF PRIVACY IS A FUNDAMENTAL PERSONAL RIGHT, EMANATING 'FROM
THE TOTALITY OF THE CONSTITUTIONAL SCHEME UNDER WHICH WE LIVE.'"  ID.,
AT 494.  (FN5) 

PRIVACY, THEN, IS A BASIC RIGHT.  THE STATES MAY, BY APPROPRIATE
LEGISLATION AND WITHIN PROPER BOUNDS, ENACT LAWS TO VINDICATE THAT
RIGHT.  CF. KOVACS V. COOPER, 336 U.S. 77 (1949), SUSTAINING A LOCAL
ORDINANCE REGULATING THE USE OF SOUND TRUCKS; AND BREARD V. ALEXANDRIA,
341 U.S. 622 (1951), SUSTAINING A STATE LAW RESTRICTING SOLICITATION IN
PRIVATE HOMES OF MAGAZINE SUBSCRIPTIONS.  DIFFICULTY PRESENTS ITSELF
BECAUSE THE APPLICATION OF SUCH STATE LEGISLATION MAY IMPINGE UPON
CONFLICTING RIGHTS OF THOSE ACCUSED OF INVADING THE PRIVACY OF OTHERS. 
BUT THIS IS NOT AUTOMATICALLY A FATAL OBJECTION.  (FN6)  PARTICULARLY
WHERE THE RIGHT OF PRIVACY IS INVADED BY WORDS - BY THE PRESS OR IN A
BOOK OR PAMPHLET - THE MOST CAREFUL AND SENSITIVE APPRAISAL OF THE
TOTAL IMPACT OF THE CLAIMED TORT UPON THE CONGERIES OF RIGHTS IS
REQUIRED.  I HAVE NO HESITANCY TO SAY, FOR EXAMPLE, THAT WHERE
POLITICAL PERSONALITIES OR ISSUES ARE INVOLVED OR WHERE THE EVENT AS TO
WHICH THE ALLEGED INVASION OF PRIVACY OCCURRED IS IN ITSELF A MATTER OF
CURRENT PUBLIC INTEREST, FIRST AMENDMENT VALUES ARE SUPREME AND ARE
ENTITLED TO AT LEAST THE TYPES OF PROTECTION THAT THIS COURT EXTENDED
IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (1964).  BUT I
CERTAINLY CONCUR WITH THE COURT THAT THE GREATEST SOLICITUDE FOR THE
FIRST AMENDMENT DOES NOT COMPEL US TO DENY TO A STATE THE RIGHT TO
PROVIDE A REMEDY FOR RECKLESS FALSITY IN WRITING AND PUBLISHING AN
ARTICLE WHICH IRRESPONSIBLY AND INJURIOUSLY INVADES THE PRIVACY OF A
QUIET FAMILY FOR NO PURPOSE EXCEPT DRAMATIC INTEREST AND COMMERCIAL
APPEAL.  MY DIFFICULTY IS THAT WHILE THE COURT GIVES LIP SERVICE TO
THIS PRINCIPLE, ITS DECISION, WHICH IT CLAIMS TO BE BASED ON ERRONEOUS
INSTRUCTIONS, DISCLOSES HESITANCY TO GO BEYOND THE VERBAL
ACKNOWLEDGMENT. 

THE COURT TODAY DOES NOT REPEAT THE RINGING WORDS OF SO MANY OF ITS
MEMBERS ON SO MANY OCCASIONS IN EXALTATION OF THE RIGHT OF PRIVACY. 
INSTEAD, IT REVERSES A DECISION UNDER THE NEW YORK "RIGHT OF PRIVACY"
STATUTE BECAUSE OF THE "FAILURE OF THE TRIAL JUDGE TO INSTRUCT THE JURY
THAT A VERDICT OF LIABILITY COULD BE PREDICATED ONLY ON A FINDING OF
KNOWING OR RECKLESS FALSITY IN THE PUBLICATION OF THE LIFE ARTICLE." 
IN MY OPINION, THE JURY INSTRUCTIONS, ALTHOUGH THEY WERE NOT A TEXTBOOK
MODEL, SATISFIED THIS STANDARD. 

IN THE FIRST PLACE, THE COURT DOES NOT ADEQUATELY DEAL WITH THE FACT
THAT THE JURY RETURNED A VERDICT FOR EXEMPLARY OR PUNITIVE DAMAGES,
UNDER SPECIAL INSTRUCTIONS DEALING WITH THEM, AS WELL AS FOR
COMPENSATORY DAMAGES.  AS TO EXEMPLARY DAMAGES, THE JURY WAS
SPECIFICALLY INSTRUCTED THAT THESE MIGHT BE AWARDED "ONLY" IF THE JURY
FOUND FROM THE EVIDENCE THAT THE DEFENDANT "FALSELY CONNECTED
PLAINTIFFS WITH THE DESPERATE HOURS, AND THAT THIS WAS DONE KNOWINGLY
OR THROUGH FAILURE TO MAKE A REASONABLE INVESTIGATION."  THE JURY WAS
THEN INFORMED THAT "YOU DO NOT NEED TO FIND THAT THERE WAS ANY ACTUAL
ILL WILL OR PERSONAL MALICE TOWARD THE PLAINTIFFS IF YOU FIND A
RECKLESS OR WANTON DISREGARD OF THE PLAINTIFFS' RIGHTS."  THE JURY
AWARDED APPELLEE $50,000 COMPENSATORY AND $25,000 PUNITIVE DAMAGES. 
THE JUDGMENT WAS REVERSED SOLELY ON THE QUANTUM OF DAMAGES, THE
APPELLATE DIVISION SUSTAINING THE FINDING OF LIABILITY FOR BOTH
COMPENSATORY AND EXEMPLARY DAMAGES.  THE APPELLATE DIVISION'S
CONCLUSION WAS THAT THE AWARD OF DAMAGES WAS EXCESSIVE, AND IT
CRITICIZED THE ADMISSION OF CERTAIN EVIDENCE AS IMPROPERLY TENDING TO
CAUSE THE JURY TO RETURN INFLATED DAMAGES.  IN SUBSEQUENT PROCEEDINGS
BEFORE THE TRIAL COURT ON ASSESSMENT OF DAMAGES, A JURY WAS WAIVED BY
STIPULATION OF THE PARTIES, THE CASE PROCEEDED TO REASSESSMENT OF
DAMAGES AND THE JUDGE FIXED THE AMOUNT OF DAMAGES AT $30,000,
COMPENSATORY ONLY.  JUDGMENT THEREUPON WAS AFFIRMED BY THE COURT OF
APPEALS.  IT IS THIS JUDGMENT THAT IS BEFORE US - NAMELY, JURY FINDINGS
OF LIABILITY BASED ON INSTRUCTIONS COVERING BOTH EXEMPLARY AND
COMPENSATORY DAMAGES, AND AN AWARD STATED TO BE FOR COMPENSATORY
DAMAGES ALONE.  (FN7) 

THE COURT REFERS ONLY TO THAT PART OF THE INSTRUCTIONS AS TO
EXEMPLARY DAMAGES WHICH SPEAKS IN TERMS OF THE "FAILURE TO MAKE A
REASONABLE INVESTIGATION," AND CONDEMNS IT AS PERMITTING A VERDICT
BASED SOLELY ON "NEGLIGENT MISSTATEMENT."  I RESPECTFULLY SUBMIT THAT
THE INSTRUCTION CANNOT FAIRLY BE SO READ.  THE INSTRUCTION REQUIRES THE
JURY TO FIND BOTH THAT (1) DEFENDANT "FALSELY CONNECTED" PLAINTIFFS
WITH THE PLAY, AND (2) DID SO KNOWINGLY OR THROUGH FAILURE TO MAKE A
REASONABLE INVESTIGATION.  THIS IS CERTAINLY A CHARGE SATISFYING THE
COURT'S REQUIREMENT THAT "A VERDICT OF LIABILITY COULD BE PREDICATED
ONLY ON A FINDING OF KNOWING OR RECKLESS FALSITY IN THE PUBLICATION OF
THE LIFE ARTICLE."  AN ERROR IN THE COURSE OF INVESTIGATION MIGHT BE
MERE NEGLIGENT MISSTATEMENT.  FAILURE TO MAKE A REASONABLE
INVESTIGATION IS SOMETHING ELSE.  THE STANDARD OF A "REASONABLE
INVESTIGATION" IS CERTAINLY A MINIMUM YARDSTICK BY WHICH TO MEASURE THE
LIABILITY OF PUBLISHERS.  IT IS CERTAINLY NOT INCOMPATIBLE WITH THE
FULL FLAVOR OF THE FIRST AMENDMENT AND DISREGARD OF THIS STANDARD IN
THE CIRCUMSTANCES IS RECKLESSNESS.  IT MIGHT WELL BE THAT WHAT
CONSTITUTES AN ADEQUATE BASIS FOR A JURY FINDING OF FAILURE TO MAKE A
REASONABLE INVESTIGATION WOULD DIFFER, FOR EXAMPLE, IN THE CASE OF A
DAILY NEWSPAPER AS COMPARED WITH A FEATURE MAGAZINE.  BUT HERE NO SUCH
PROBLEM ARISES.   THE TRUTH WAS IN A FOLDER ON THE DESK OF THE AUTHOR
OF THE STORY.  IT WAS DELIBERATELY DISREGARDED BY HIS EDITOR.  LEAD
TIME ON THE STORY WAS THREE MONTHS.  (FN8)    IN ADDITION, HOWEVER,
EVEN IF APPELLEE HAD TO RELY ONLY UPON THE INSTRUCTIONS TO THE JURY ON
COMPENSATORY DAMAGES, I DO NOT AGREE THAT WE SHOULD SET ASIDE THE JURY
VERDICT AND REVERSE THE NEW YORK COURT OF APPEALS.  SUCH DRASTIC ACTION
- THE REVERSAL OF A JURY VERDICT BY THIS REMOTE COURT - IS JUSTIFIED BY
THE COURT ON THE GROUND THAT THE STANDARD OF LIABILITY ON WHICH THE
JURY WAS INSTRUCTED CONTRAVENES THE FIRST AMENDMENT.  BUT A JURY
INSTRUCTION IS NOT ABRACADABRA.  IT IS NOT A MAGICAL INCANTATION, THE
SLIGHTEST DEVIATION FROM WHICH WILL BREAK THE SPELL.  ONLY ITS POORER
EXAMPLES ARE FORMALISTIC CODES RECITED BY A TRIAL JUDGE TO PLEASE
APPELLATE MASTERS.  AT ITS BEST, IT IS SIMPLE, RUGGED COMMUNICATION
FROM A TRIAL JUDGE TO A JURY OF ORDINARY PEOPLE, ENTITLED TO BE
APPRAISED IN TERMS OF ITS NET EFFECT.  INSTRUCTIONS ARE TO BE VIEWED IN
THIS COMMONSENSE PERSPECTIVE, AND NOT THROUGH THE REMOTE AND DISTORTING
KNOTHOLE OF A DISTANT APPELLATE FENCE.  READ IN THIS PERSPECTIVE, THE
CORE OF THE INSTRUCTIONS HERE ON COMPENSATORY DAMAGES - EVEN IF WE
DISREGARD THE FACT THAT THE JURY FOUND LIABILITY UNDER THE MORE
EXACTING INSTRUCTIONS RELATING TO EXEMPLARY DAMAGES - WAS SUFFICIENT TO
MEET THE MAJORITY'S TEST.  THE GRAVAMEN OF THE COURT'S CHARGE, REPEATED
THREE TIMES IN VIRTUALLY THE SAME WORDS, WAS THE FOLLOWING: 

"IT IS FOR YOU TO DETERMINE WHETHER, IN PUBLISHING THE ARTICLE, THE
DEFENDANT TIME, INCORPORATED ALTERED OR CHANGED THE TRUE FACTS
CONCERNING PLAINTIFFS' RELATIONSHIP TO THE DESPERATE HOURS, SO THAT THE
ARTICLE, AS PUBLISHED, CONSTITUTED SUBSTANTIALLY FICTION OR A
FICTIONALIZED VERSION FOR TRADE PURPOSES  ...  ." 

THE JURY WAS ALSO INSTRUCTED THAT "BEFORE THE PLAINTIFFS CAN BE
ENTITLED TO A VERDICT  ...  YOU MUST FIND THAT THE STATEMENTS
CONCERNING THE PLAINTIFFS IN THE ARTICLE CONSTITUTED FICTION, AS
COMPARED WITH NEWS, OR MATTERS WHICH WERE NEWSWORTHY."  WITH ALL
RESPECT, I SUBMIT THAT THIS IS CLOSE ENOUGH TO THIS COURT'S INSISTENCE
UPON "KNOWING OR RECKLESS FALSITY" AS TO RENDER A REVERSAL ARBITRARY
AND UNJUSTIFIED.  IF THE DEFENDANT ALTERED OR CHANGED THE TRUE FACTS SO
THAT THE ARTICLE AS PUBLISHED WAS A FICTIONALIZED VERSION, THIS, IN MY
JUDGMENT, WAS A KNOWING OR RECKLESS FALSITY.  "ALTERATION" OR "CHANGE"
DENOTES A POSITIVE ACT - NOT A NEGLIGENT OR INADVERTENT HAPPENING. 
"FICTIONALIZATION" AND "FICTION" TO THE ORDINARY MIND MEAN SO DEPARTING
FROM FACT AND REALITY AS TO BE DELIBERATELY DIVORCED FROM THE FACT -
NOT MERELY IN DETAIL BUT IN GENERAL AND PERVASIVE IMPACT.  (FN9)  THE
ENGLISH LANGUAGE IS NOT SO ESOTERIC AS TO PERMIT SERIOUS CONSEQUENCES
TO TURN UPON A SUPPOSED DIFFERENCE BETWEEN THE INSTRUCTIONS TO THE JURY
AND THIS COURT'S FORMULATION.  NOR IS THE FIRST AMENDMENT IN SUCH
DELICATE HEALTH THAT IT REQUIRES OR PERMITS THIS KIND OF SURGERY, THE
NET EFFECT OF WHICH IS NOT ONLY AN INDIVIDUAL INJUSTICE, BUT AN
ENCOURAGEMENT TO RECKLESSNESS AND CARELESS READINESS TO RIDE ROUGHSHOD
OVER THE INTERESTS OF OTHERS. 

THE COURTS MAY NOT AND MUST NOT PERMIT EITHER PUBLIC OR PRIVATE
ACTION THAT CENSORS OR INHIBITS THE PRESS.  BUT PART OF THIS
RESPONSIBILITY IS TO PRESERVE VALUES AND PROCEDURES WHICH ASSURE THE
ORDINARY CITIZEN THAT THE PRESS IS NOT ABOVE THE REACH OF THE LAW -
THAT ITS SPECIAL PREROGATIVES, GRANTED BECAUSE OF ITS SPECIAL AND VITAL
FUNCTIONS, ARE REASONABLY EQUATED WITH ITS NEEDS IN THE PERFORMANCE OF
THESE FUNCTIONS.  FOR THIS COURT TOTALLY TO IMMUNIZE THE PRESS -
WHETHER FORTHRIGHTLY OR BY SUBTLE INDIRECTION - IN AREAS FAR BEYOND THE
NEEDS OF NEWS, COMMENT ON PUBLIC PERSONS AND EVENTS, DISCUSSION OF
PUBLIC ISSUES AND THE LIKE WOULD BE NO SERVICE TO FREEDOM OF THE PRESS,
BUT AN INVITATION TO PUBLIC HOSTILITY TO THAT FREEDOM.  THIS COURT
CANNOT AND SHOULD NOT REFUSE TO PERMIT UNDER STATE LAW THE PRIVATE
CITIZEN WHO IS AGGRIEVED BY THE TYPE OF ASSAULT WHICH WE HAVE HERE AND
WHICH IS NOT WITHIN THE SPECIALLY PROTECTED CORE OF THE FIRST AMENDMENT
TO RECOVER COMPENSATORY DAMAGES FOR RECKLESSLY INFLICTED INVASION OF
HIS RIGHTS. 

ACCORDINGLY, I WOULD AFFIRM. 

FN1  COOLEY, LAW OF TORTS 29 (2D ED. 1888). 

FN2  4 HARV. L. REV. 193, 196 (1890).  SEE PROSSER, LAW OF TORTS 829
ET SEQ. (3D ED. 1964). 

FN3  PROSSER, OP. CIT. SUPRA, 831, 832. 

FN4  WOLF HELD THAT THE BASIC VALUES OF THE FOURTH AMENDMENT APPLY TO
THE STATES VIA THE FOURTEENTH, BUT DECLINED TO REQUIRE THE STATES TO
EXCLUDE ILLEGALLY SEIZED EVIDENCE IN CRIMINAL TRIALS.  IN THIS LATTER
RESPECT IT WAS OVERRULED BY MAPP V. OHIO, INFRA. 

FN5  LAST TERM, IN ROSENBLATT V. BAER, 383 U.S. 75, 92 (1966), MR.
JUSTICE STEWART, CONCURRING, REFERRED TO THE "RIGHT OF A MAN TO THE
PROTECTION OF HIS OWN REPUTATION FROM UNJUSTIFIED INVASION AND WRONGFUL
HURT" AS REFLECTING "OUR BASIC CONCEPT OF THE ESSENTIAL DIGNITY AND
WORTH OF EVERY HUMAN BEING - A CONCEPT AT THE ROOT OF ANY DECENT SYSTEM
OF ORDERED LIBERTY."  HE REFERRED TO THE "PROTECTION OF PRIVATE
PERSONALITY, LIKE THE PROTECTION OF LIFE ITSELF," AS ENTITLED TO
"RECOGNITION BY THIS COURT AS A BASIC OF OUR CONSTITUTIONAL SYSTEM." 
SEE ALSO MR. JUSTICE DOUGLAS, DISSENTING, IN POE V. ULLMAN, 367 U.S.
497, 521 (1961). 

FN6  CF. BREARD, SUPRA, AT 625-626: 

"  ...  THERE IS EQUAL UNANIMITY THAT OPPORTUNISTS, FOR PRIVATE GAIN,
CANNOT BE PERMITTED TO ARM THEMSELVES WITH AN ACCEPTABLE PRINCIPLE,
SUCH AS THAT OF A RIGHT TO WORK, A PRIVILEGE TO ENGAGE IN INTERSTATE
COMMERCE, OR A FREE PRESS, AND PROCEED TO USE IT AS AN IRON STANDARD TO
SMOOTH THEIR PATH BY CRUSHING THE LIVING RIGHTS OF OTHERS TO PRIVACY
AND REPOSE." 

FN7  THERE IS NO INDICATION IN THE RECORD THAT THE COURT'S AWARD WAS
INTENDED TO SET ASIDE OR OTHERWISE NULLIFY THE JURY'S FINDING UNDER THE
PUNITIVE DAMAGE RESTRICTIONS. 

FN8  THE MAJORITY SEEK TO AVOID THE IMPACT OF THE INSTRUCTION'S
REFERENCE TO THE NECESSITY OF FINDING "A RECKLESS OR WANTON DISREGARD
OF THE PLAINTIFFS' RIGHTS" BY SPECULATING THAT THIS REFERRED ONLY TO
FAILURE TO OBTAIN CONSENT AND NOT TO FALSITY.  NOT ONLY IS THERE NO
BASIS FOR THIS SPECULATION, BUT THE PLACING OF THIS PART OF THE
INSTRUCTION - IMMEDIATELY AFTER THE DISCUSSION OF FALSITY - SUGGESTS
THAT THE CONTRARY IS TRUE. 

FN9  THE COURT'S CHARGE AND THE NEW YORK CASES EMPHASIZE THIS
DEFINITION.  THE MOST IMPORTANT RECENT CASE IS SPAHN V. MESSNER, INC.,
18 N.Y.2D 324, 221 N.E.2D 543 (1966).  IN SPAHN, THE SUPREME COURT OF
NEW YORK OBSERVED:  "WHILE UNTRUE STATEMENTS DO NOT NECESSARILY
TRANSFORM A BOOK INTO THE CATEGORY OF FICTION, THE ALL-PERVASIVE
DISTORTIONS, INACCURACIES, INVENTED DIALOGUE, AND THE NARRATION OF
HAPPENINGS OUT OF CONTEXT, CLEARLY INDICATE, AT THE VERY BEST, A
CARELESS DISREGARD FOR THE RESPONSIBILITY OF THE PRESS AND WITHIN THE
CONTEXT OF THIS ACTION, AN ABUSE OF THE PUBLIC'S LIMITED PRIVILEGE TO
INQUIRE INTO AN INDIVIDUAL'S LIFE."  43 MISC. 2D 219, 230, 250 N.Y.S.2D
529, 541 (1964).  AFFIRMING, THE APPELLATE DIVISION (PER BREITEL, J.) 
OBSERVED THAT THE BOOK IN QUESTION HAD BEEN "FICTIONALIZED, CONCEDEDLY,
IN ORDER TO MAKE IT SUITABLE FOR A JUVENILE READERSHIP" AND THE
PUBLISHERS "MADE NO EFFORT AND HAD NO INTENTION TO FOLLOW THE FACTS
CONCERNING PLAINTIFF'S LIFE, EXCEPT IN BROAD OUTLINE."  23 APP. DIV. 2D
216, 219, 260 N.Y.S.2D 451, 454 (1ST DEPT. 1965).  THE APPELLATE
DIVISION SURVEYED THE EARLIER NEW YORK CASES, INCLUDING THE PRESENT
HILL CASE, AND CONCLUDED THEY WERE ALL BASED ON THE "DISTINCTION
BETWEEN AN INTENTIONALLY FICTIONALIZED TREATMENT AND A STRAIGHT FACTUAL
TREATMENT (SUBJECT TO INADVERTENT OR SUPERFICIAL INACCURACIES)  ...
."  ID., AT 220, 260 N.Y.S.2D, AT 454. 
..END :
















NATIONAL LABOR RELATIONS BOARD V. C&C PLYWOOD CORP. 385 U.S. 421 


NO. 53.  ARGUED NOVEMBER 15, 1966.  - DECIDED JANUARY 9, 1967.  - 351
F.2D 224, REVERSED AND REMANDED. 


RESPONDENT, EMPLOYER, WAS CHARGED WITH AN UNFAIR LABOR PRACTICE FOR
INAUGURATING A PREMIUM PAY PLAN DURING THE TERM OF A COLLECTIVE
BARGAINING AGREEMENT WITHOUT PRIOR CONSULTATION WITH THE UNION
REPRESENTING ITS EMPLOYEES, IN VIOLATION OF SECS. 8(A)(5) AND (1) OF
THE NATIONAL LABOR RELATIONS ACT.  THE NLRB ISSUED A CEASE-AND-DESIST
ORDER, REJECTING RESPONDENT'S CLAIM THAT ITS ACTION WAS AUTHORIZED BY A
PROVISION OF THE AGREEMENT.  THE AGREEMENT PROVIDED FOR GRIEVANCE
MACHINERY BUT NOT FOR ARBITRATION.  THE COURT OF APPEALS REFUSED TO
ENFORCE THE ORDER, REASONING THAT A CONTRACT PROVISION WHICH "ARGUABLY"
ALLOWED RESPONDENT TO INSTITUTE THE PREMIUM PAY PLAN DIVESTED THE NLRB
OF JURISDICTION TO ENTERTAIN THE UNFAIR LABOR PRACTICE CHARGE.  HELD: 

1.  THE NLRB WAS NOT WITHOUT JURISDICTION TO ADJUDICATE THE UNFAIR
LABOR PRACTICE CHARGE MERELY BECAUSE ITS DECISION REQUIRED THE
INTERPRETATION OF A PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT
RELIED ON AS A DEFENSE BY THE EMPLOYER.  PP. 425-430. 

2.  THE NLRB'S CONCLUSIONS THAT THE AGREEMENT GAVE RESPONDENT NO
UNILATERAL RIGHT TO INSTITUTE THE PREMIUM PAY PLAN AND THAT THE UNION
HAD NOT FORGONE ITS STATUTORY RIGHT TO BARGAIN ABOUT THE PLAN, REACHED
IN THE LIGHT OF ITS EXPERIENCE WITH LABOR RELATIONS AND THE ACT'S CLEAR
EMPHASIS ON THE PROTECTION OF FREE COLLECTIVE BARGAINING, WERE NOT
ERRONEOUS.  PP. 430-431. 

NATIONAL LABOR RELATIONS BOARD V. C&C PLYWOOD CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT EMPLOYER WAS BROUGHT BEFORE THE NATIONAL LABOR
RELATIONS BOARD TO ANSWER A COMPLAINT THAT ITS INAUGURATION OF A
PREMIUM PAY PLAN DURING THE TERM OF A COLLECTIVE AGREEMENT, WITHOUT
PRIOR CONSULTATION WITH THE UNION REPRESENTING ITS EMPLOYEES, VIOLATED
THE DUTIES IMPOSED BY SECS. 8(A)(5) AND (1) OF THE NATIONAL LABOR
RELATIONS ACT.  (FN1)  THE BOARD ISSUED A CEASE-AND-DESIST ORDER,
REJECTING THE CLAIM THAT THE RESPONDENT'S ACTION WAS AUTHORIZED BY THE
COLLECTIVE AGREEMENT.  (FN2)  THE COURT OF APPEALS FOR THE NINTH
CIRCUIT REFUSED, HOWEVER, TO ENFORCE THE BOARD'S ORDER.  IT REASONED
THAT A PROVISION IN THE AGREEMENT BETWEEN THE UNION AND THE EMPLOYER,
WHICH "ARGUABLY" ALLOWED THE EMPLOYER TO INSTITUTE THE PREMIUM PAY
PLAN, DIVESTED THE BOARD OF JURISDICTION TO ENTERTAIN THE UNION'S
UNFAIR LABOR PRACTICE CHARGE.  351 F.2D 224.  WE GRANTED CERTIORARI TO
CONSIDER A SUBSTANTIAL QUESTION OF FEDERAL LABOR LAW.  384 U.S. 903. 

IN AUGUST 1962, THE PLYWOOD, LUMBER, AND SAW MILL WORKERS LOCAL NO.
2405 WAS CERTIFIED AS THE BARGAINING REPRESENTATIVE OF THE RESPONDENT'S
PRODUCTION AND MAINTENANCE EMPLOYEES.  THE AGREEMENT WHICH RESULTED
FROM COLLECTIVE BARGAINING CONTAINED THE FOLLOWING PROVISION:

     "ARTICLE XVII

    "WAGES 

"A.  A CLASSIFIED WAGE SCALE HAS BEEN AGREED UPON BY THE EMPLOYER AND
UNION, AND HAS BEEN SIGNED BY THE PARTIES AND THEREBY MADE A PART OF
THE WRITTEN AGREEMENT.  THE EMPLOYER RESERVES THE RIGHT TO PAY A
PREMIUM RATE OVER AND ABOVE THE CONTRACTUAL CLASSIFIED WAGE RATE TO
REWARD ANY PARTICULAR EMPLOYEE FOR SOME SPECIAL FITNESS, SKILL,
APTITUDE OR THE LIKE.  THE PAYMENT OF SUCH A PREMIUM RATE SHALL NOT BE
CONSIDERED A PERMANENT INCREASE IN THE RATE OF THAT POSITION AND MAY,
AT SOLE OPTION OF THE EMPLOYER, BE REDUCED TO THE CONTRACTUAL RATE  ...
." 

THE AGREEMENT ALSO STIPULATED THAT WAGES SHOULD BE "CLOSED" DURING
THE PERIOD IT WAS EFFECTIVE (FN3)  AND THAT NEITHER PARTY SHOULD BE
OBLIGATED TO BARGAIN COLLECTIVELY WITH RESPECT TO ANY MATTER NOT
SPECIFICALLY REFERRED TO IN THE CONTRACT.  (FN4)  GRIEVANCE MACHINERY
WAS ESTABLISHED, BUT NO ULTIMATE ARBITRATION OF GRIEVANCES OR OTHER
DISPUTES WAS PROVIDED. 

LESS THAN THREE WEEKS AFTER THIS AGREEMENT WAS SIGNED, THE RESPONDENT
POSTED A NOTICE THAT ALL MEMBERS OF THE "GLUE SPREADER" CREWS WOULD BE
PAID $2.50 PER HOUR IF THEIR CREWS MET SPECIFIED BIWEEKLY (AND LATER
WEEKLY) PRODUCTION STANDARDS, ALTHOUGH UNDER THE "CLASSIFIED WAGE
SCALE" REFERRED TO IN THE ABOVE QUOTED ART. XVII OF THE AGREEMENT, THE
MEMBERS OF THESE CREWS WERE TO BE PAID HOURLY WAGES RANGING FROM $2.15
TO $2.29, DEPENDING UPON THEIR FUNCTION WITHIN THE CREW.  (FN5)  WHEN
THE UNION LEARNED OF THIS PREMIUM PAY PLAN THROUGH ONE OF ITS MEMBERS,
IT IMMEDIATELY ASKED FOR A CONFERENCE WITH THE RESPONDENT.  DURING THE
MEETINGS BETWEEN THE PARTIES WHICH FOLLOWED THIS REQUEST, THE EMPLOYER
INDICATED A WILLINGNESS TO DISCUSS THE TERMS OF THE PLAN, BUT REFUSED
TO RESCIND IT PENDING THOSE DISCUSSIONS. 

IT WAS THIS REFUSAL WHICH PROMPTED THE UNION TO CHARGE THE RESPONDENT
WITH AN UNFAIR LABOR PRACTICE IN VIOLATION OF SECS. 8(A)(5) AND (1). 
THE TRIAL EXAMINER FOUND THAT THE RESPONDENT HAD INSTITUTED THE PREMIUM
PAY PROGRAM IN GOOD-FAITH RELIANCE UPON THE RIGHT RESERVED TO IT IN THE
COLLECTIVE AGREEMENT.  HE, THEREFORE, DISMISSED THE COMPLAINT.  THE
BOARD REVERSED.  GIVING CONSIDERATION TO THE HISTORY OF NEGOTIATIONS
BETWEEN THE PARTIES,  (FN6)  AS WELL AS THE EXPRESS PROVISIONS OF THE
COLLECTIVE AGREEMENT, THE BOARD RULED THE UNION HAD NOT CEDED POWER TO
THE EMPLOYER UNILATERALLY TO CHANGE THE WAGE SYSTEM AS IT HAD.  FOR
WHILE THE AGREEMENT SPECIFIED DIFFERENT HOURLY PAY FOR DIFFERENT
MEMBERS OF THE GLUE SPREADER CREWS AND ALLOWED FOR MERIT INCREASES FOR
"PARTICULAR EMPLOYEES," THE EMPLOYER HAD PLACED ALL THE MEMBERS OF
THESE CREWS ON THE SAME WAGE SCALE AND HAD MADE IT A FUNCTION OF THE
PRODUCTION OUTPUT OF THE CREW AS A WHOLE. 

IN REFUSING TO ENFORCE THE BOARD'S ORDER, THE COURT OF APPEALS DID
NOT DECIDE THAT THE PREMIUM PAY PROVISION OF THE LABOR AGREEMENT HAD
BEEN MISINTERPRETED BY THE BOARD.  INSTEAD, IT HELD THE BOARD DID NOT
HAVE JURISDICTION TO FIND THE RESPONDENT HAD VIOLATED SEC. 8(A) OF THE
LABOR ACT, BECAUSE THE "EXISTENCE  ...  OF AN UNFAIR LABOR PRACTICE DID
NOT TURN ENTIRELY UPON THE PROVISIONS OF THE ACT, BUT ARGUABLY UPON A
GOOD-FAITH DISPUTE AS TO THE CORRECT MEANING OF THE PROVISIONS OF THE
COLLECTIVE BARGAINING AGREEMENT  ...  ."  351 F.2D, AT 228. 

THE RESPONDENT DOES NOT QUESTION THE PROPOSITION THAT AN EMPLOYER MAY
NOT UNILATERALLY INSTITUTE MERIT INCREASES DURING THE TERM OF A
COLLECTIVE AGREEMENT UNLESS SOME PROVISION OF THE CONTRACT AUTHORIZES
HIM TO DO SO.  SEE LABOR BOARD V. J.H. ALLISON & CO., 165 F.2D 766
(C.A. 6TH CIR.), CERT. DENIED, 335 U.S. 814.  CF. BEACON PIECE DYEING
CO., 121 N.L.R.B. 953 (1958).  (FN7)  THE ARGUMENT IS, RATHER, THAT
SINCE THE CONTRACT CONTAINED A PROVISION WHICH MIGHT HAVE ALLOWED THE
RESPONDENT TO INSTITUTE THE WAGE PLAN IN QUESTION, THE BOARD WAS
POWERLESS TO DETERMINE WHETHER THAT PROVISION DID AUTHORIZE THE
RESPONDENT'S ACTION, BECAUSE THE QUESTION WAS ONE FOR A STATE OR
FEDERAL COURT UNDER SEC 301 OF THE ACT.  (FN8) 

IN EVALUATING THIS CONTENTION, IT IS IMPORTANT FIRST TO POINT OUT
THAT THE COLLECTIVE BARGAINING AGREEMENT CONTAINED NO ARBITRATION
CLAUSE.  (FN9)  THE CONTRACT DID PROVIDE GRIEVANCE PROCEDURES, BUT THE
END RESULT OF THOSE PROCEDURES, IF DIFFERENCES BETWEEN THE PARTIES
REMAINED UNRESOLVED, WAS ECONOMIC WARFARE, NOT "THE THERAPY OF
ARBITRATION."  CAREY V. WESTINGHOUSE CORP., 375 U.S. 261, 272.  THUS,
THE BOARD'S ACTION IN THIS CASE WAS IN NO WAY INCONSISTENT WITH ITS
PREVIOUS RECOGNITION OF ARBITRATION AS "AN INSTRUMENT OF NATIONAL LABOR
POLICY FOR COMPOSING CONTRACTUAL DIFFERENCES."  INTERNATIONAL HARVESTER
CO., 138 N.L.R.B.  923, 926 (1962), AFF'D SUB NOM. RAMSEY V. LABOR
BOARD, 327 F.2D 784 (C.A. 7TH CIR.), CERT. DENIED, 377 U.S. 1003. 
(FN10) 

THE RESPONDENT'S ARGUMENT RESTS PRIMARILY UPON THE LEGISLATIVE
HISTORY OF THE 1947 AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT.  IT
IS SAID THAT THE REJECTION BY CONGRESS OF A BILL WHICH WOULD HAVE GIVEN
THE BOARD UNFAIR LABOR PRACTICE JURISDICTION OVER ALL BREACHES OF
COLLECTIVE BARGAINING AGREEMENTS SHOWS THAT THE BOARD IS WITHOUT POWER
TO DECIDE ANY CASE INVOLVING THE INTERPRETATION OF A LABOR CONTRACT. 
WE DO NOT DRAW THAT INFERENCE FROM THIS LEGISLATIVE HISTORY. 

WHEN CONGRESS DETERMINED THAT THE BOARD SHOULD NOT HAVE GENERAL
JURISDICTION OVER ALL ALLEGED VIOLATIONS OF COLLECTIVE BARGAINING
AGREEMENTS  (FN11) AND THAT SUCH MATTERS SHOULD BE PLACED WITHIN THE
JURISDICTION OF THE COURTS,  (FN12)  IT WAS ACTING UPON A PRINCIPLE
WHICH THIS COURT HAD ALREADY RECOGNIZED: 

"THE RAILWAY LABOR ACT, LIKE THE NATIONAL LABOR RELATIONS ACT, DOES
NOT UNDERTAKE GOVERNMENTAL REGULATION OF WAGES, HOURS, OR WORKING
CONDITIONS.  INSTEAD IT SEEKS TO PROVIDE A MEANS BY WHICH AGREEMENT MAY
BE REACHED WITH RESPECT TO THEM." 

TERMINAL RAILROAD ASSN. V. BROTHERHOOD OF RAILROAD TRAINMEN, 318 U.S.
1, 6.  TO HAVE CONFERRED UPON THE NATIONAL LABOR RELATIONS BOARD
GENERALIZED POWER TO DETERMINE THE RIGHTS OF PARTIES UNDER ALL
COLLECTIVE AGREEMENTS WOULD HAVE BEEN A STEP TOWARD GOVERNMENTAL
REGULATION OF THE TERMS OF THOSE AGREEMENTS.  WE VIEW CONGRESS'
DECISION NOT TO GIVE THE BOARD THAT BROAD POWER AS A REFUSAL TO TAKE
THIS STEP.  (FN13) 

BUT IN THIS CASE THE BOARD HAS NOT CONSTRUED A LABOR AGREEMENT TO
DETERMINE THE EXTENT OF THE CONTRACTUAL RIGHTS WHICH WERE GIVEN THE
UNION BY THE EMPLOYER.  IT HAS NOT IMPOSED ITS OWN VIEW OF WHAT THE
TERMS AND CONDITIONS OF THE LABOR AGREEMENT SHOULD BE.  IT HAS DONE NO
MORE THAN MERELY ENFORCE A STATUTORY RIGHT WHICH CONGRESS CONSIDERED
NECESSARY TO ALLOW LABOR AND MANAGEMENT TO GET ON WITH THE PROCESS OF
REACHING FAIR TERMS AND CONDITIONS OF EMPLOYMENT - "TO PROVIDE A MEANS
BY WHICH AGREEMENT MAY BE REACHED."  THE BOARD'S INTERPRETATION WENT
ONLY SO FAR AS WAS NECESSARY TO DETERMINE THAT THE UNION DID NOT AGREE
TO GIVE UP THESE STATUTORY SAFEGUARDS.  THUS, THE BOARD, IN NECESSARILY
CONSTRUING A LABOR AGREEMENT TO DECIDE THIS UNFAIR LABOR PRACTICE CASE,
HAS NOT EXCEEDED THE JURISDICTION LAID OUT FOR IT BY CONGRESS. 

THIS CONCLUSION IS REINFORCED BY PREVIOUS JUDICIAL RECOGNITION THAT A
CONTRACTUAL DEFENSE DOES NOT DIVEST THE LABOR BOARD OF JURISDICTION. 
FOR EXAMPLE, IN MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270, THE
LEGALITY OF AN EMPLOYER'S REFUSAL TO REINSTATE STRIKERS WAS BASED UPON
THE BOARD'S CONSTRUCTION OF A "NO STRIKE" CLAUSE IN THE LABOR
AGREEMENT, WHICH THE EMPLOYER CONTENDED ALLOWED IT TO REFUSE TO TAKE
BACK WORKERS WHO HAD WALKED OUT IN PROTEST OVER ITS UNFAIR LABOR
PRACTICE.  THE STRIKERS APPLIED TO THE BOARD FOR REINSTATEMENT AND BACK
PAY.  IN GIVING THE REQUESTED RELIEF, THE BOARD WAS FORCED TO CONSTRUE
THE SCOPE OF THE "NO STRIKE" CLAUSE.  THIS COURT, IN AFFIRMING,
STRESSED THAT THE WHOLE CASE TURNED "UPON THE PROPER INTERPRETATION OF
THE PARTICULAR CONTRACT  ... ."  350 U.S., AT 279.  THUS, MASTRO
PLASTICS STANDS SQUARELY AGAINST THE RESPONDENT'S THEORY AS TO THE
BOARD'S LACK OF POWER IN THE PRESENT CASE.  (FN14). 

IF THE BOARD IN A CASE LIKE THIS HAD NO JURISDICTION TO CONSIDER A
COLLECTIVE AGREEMENT PRIOR TO AN AUTHORITATIVE CONSTRUCTION BY THE
COURTS, LABOR ORGANIZATIONS WOULD FACE INORDINATE DELAYS IN OBTAINING
VINDICATION OF THEIR STATUTORY RIGHTS.  WHERE, AS HERE, THE PARTIES
HAVE NOT PROVIDED FOR ARBITRATION, THE UNION WOULD HAVE TO INSTITUTE A
COURT ACTION TO DETERMINE THE APPLICABILITY OF THE PREMIUM PAY
PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT.  (FN15)  IF IT
SUCCEEDED IN COURT, THE UNION WOULD THEN HAVE TO GO BACK TO THE LABOR
BOARD TO BEGIN AN UNFAIR LABOR PRACTICE PROCEEDING.  IT IS NOT UNLIKELY
THAT THIS WOULD ADD YEARS TO THE ALREADY LENGTHY PERIOD REQUIRED TO
GAIN RELIEF FROM THE BOARD.  (FN16)  CONGRESS CANNOT HAVE INTENDED TO
PLACE SUCH OBSTACLES IN THE WAY OF THE BOARD'S EFFECTIVE ENFORCEMENT OF
STATUTORY DUTIES.  FOR IN THE LABOR FIELD, AS IN FEW OTHERS, TIME IS
CRUCIALLY IMPORTANT IN OBTAINING RELIEF.  AMALGAMATED CLOTHING WORKERS
V. RICHMAN BROS. CO., 348 U.S. 511, 526 (DISSENTING OPINION). 

THE LEGISLATIVE HISTORY OF THE LABOR ACT, THE PRECEDENTS INTERPRETING
IT, AND THE INTEREST OF ITS EFFICIENT ADMINISTRATION THUS ALL LEAD TO
THE CONCLUSION THAT THE BOARD HAD JURISDICTION TO DEAL WITH THE UNFAIR
LABOR PRACTICE CHARGE IN THIS CASE.  WE HOLD THAT THE COURT OF APPEALS
WAS IN ERROR IN DECIDING TO THE CONTRARY. 

THE REMAINING QUESTION, NOT REACHED BY THE COURT OF APPEALS, IS
WHETHER THE BOARD WAS WRONG IN CONCLUDING THAT THE CONTESTED PROVISION
IN THE COLLECTIVE AGREEMENT GAVE THE RESPONDENT NO UNILATERAL RIGHT TO
INSTITUTE ITS PREMIUM PAY PLAN.  IN REACHING THIS CONCLUSION, THE BOARD
RELIED UPON ITS EXPERIENCE WITH LABOR RELATIONS AND THE ACT'S CLEAR
EMPHASIS UPON THE PROTECTION OF FREE COLLECTIVE BARGAINING.  WE CANNOT
DISAPPROVE OF THE BOARD'S APPROACH.  FOR THE LAW OF LABOR AGREEMENTS
CANNOT BE BASED UPON ABSTRACT DEFINITIONS UNRELATED TO THE CONTEXT IN
WHICH THE PARTIES BARGAINED AND THE BASIC REGULATORY SCHEME UNDERLYING
THAT CONTEXT.  SEE COX, THE LEGAL NATURE OF COLLECTIVE BARGAINING
AGREEMENTS, 57 MICH. L. REV. 1 (1958).  NOR CAN WE SAY THAT THE BOARD
WAS WRONG IN HOLDING THAT THE UNION HAD NOT FORGONE ITS STATUTORY RIGHT
TO BARGAIN ABOUT THE PAY PLAN INAUGURATED BY THE RESPONDENT.  FOR THE
DISPUTED CONTRACT PROVISION REFERRED TO INCREASES FOR "PARTICULAR
EMPLOYEES," NOT GROUPS OF WORKERS.  AND THERE WAS NOTHING IN IT TO
SUGGEST THAT THE CAREFULLY WORKED OUT WAGE DIFFERENTIALS FOR VARIOUS
MEMBERS OF THE GLUE SPREADER CREW COULD BE INVALIDATED BY THE
RESPONDENT'S DECISION TO PAY ALL MEMBERS OF THE CREW THE SAME WAGE. 
(FN17) 

THE JUDGMENT IS ACCORDINGLY REVERSED AND THE CASE IS REMANDED TO THE
COURT OF APPEALS WITH DIRECTIONS TO ENFORCE THE BOARD'S ORDER. 
REVERSED AND REMANDED. 

FN1  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SECS. 8(A)(5) AND (1),
61 STAT. 140-141, 29 U.S.C. SECS. 158(A)(5) AND (1). 

FN2  THE NLRB'S ORDER DIRECTED RESPONDENT TO BARGAIN WITH THE UNION
UPON THE LATTER'S REQUEST AND SIMILARLY TO RESCIND ANY PAYMENT PLAN
WHICH IT HAD UNILATERALLY INSTITUTED. 

FN3                                       "ARTICLE XVII 

     *         *         *         *  * 

"B.  IT IS MUTUALLY AGREED THAT THE ATTACHED CLASSIFIED WAGE SCALE
SHALL BE EFFECTIVE UPON THE SIGNING OF THIS WORKING AGREEMENT WITH
WAGES CLOSED FOR THE TERM OF THAT AGREEMENT  ...  ." 

FN4                                       "ARTICLE XIX

                                 "WAIVER OF DUTY TO BARGAIN 

"THE PARTIES ACKNOWLEDGE THAT DURING NEGOTIATIONS WHICH RESULTED IN
THIS AGREEMENT, EACH HAD THE UNLIMITED RIGHT AND OPPORTUNITY TO MAKE
DEMANDS AND PROPOSALS WITH RESPECT TO ANY SUBJECT OR MATTER OF
COLLECTIVE BARGAINING, AND THAT THE UNDERSTANDING AND AGREEMENTS
ARRIVED AT BY THE PARTIES AFTER THE EXERCISE OF THAT RIGHT AND
OPPORTUNITY ARE SET FORTH IN THIS AGREEMENT.  THEREFORE, THE EMPLOYER
AND UNION, FOR THE LIFE OF THIS AGREEMENT, EACH VOLUNTARILY AND
UNQUALIFIEDLY WAIVES THE RIGHT AND EACH AGREE THAT THE OTHER SHALL NOT
BE OBLIGATED TO BARGAIN COLLECTIVELY WITH RESPECT TO ANY SUBJECT MATTER
NOT SPECIFICALLY REFERRED TO OR COVERED IN THIS AGREEMENT, EVEN THOUGH
SUCH SUBJECTS OR MATTERS MAY NOT HAVE BEEN WITHIN THE KNOWLEDGE OR
CONTEMPLATION OF EITHER OR BOTH OF THE PARTIES AT THE TIME THEY
NEGOTIATED OR SIGNED THIS AGREEMENT."    FN5  WORKERS IN THE THREE JOB
CLASSIFICATIONS COMPOSING THE GLUE SPREADER CREWS WERE TO RECEIVE THE
FOLLOWING WAGES: 

CORE LAYER             $2.29/HOUR: 

CORE FEEDER            $2.24/HOUR: 

SHEET TURNER           $2.15/HOUR: 

FN6  THE TRIAL EXAMINER FOUND THAT "QUITE SOME TIME PRIOR" TO THE
EXECUTION OF THE CONTRACT, THE RESPONDENT'S GENERAL MANAGER HAD
PROPOSED AN "INCENTIVE BONUS SYSTEM" WITHIN THE DEPARTMENT WHERE THE
GLUE SPREADER CREWS WORKED.  THE UNION'S REPRESENTATIVE, HOWEVER,
DECLARED THAT THE UNION WOULD NOT AGREE TO SUCH A PLAN.  SOMETIME LATER
IN THE NEGOTIATIONS, THE RESPONDENT AGAIN MADE REFERENCE TO THE FACT
THAT IT WAS "GIVING THOUGHT" TO INCENTIVE PAY, BUT THE TRIAL EXAMINER
WAS UNABLE TO CONCLUDE THAT THIS REFERENCE WAS RELATED TO THE PREMIUM
PAY PROVISION THAT EVENTUALLY APPEARED IN THE CONTRACT. 

FN7  FOR ILLUSTRATIONS OF THE LIMITED DISCRETION WHICH THE LABOR ACT
ALLOWS EMPLOYERS CONCERNING THE WAGES OF EMPLOYEES REPRESENTED BY
CERTIFIED UNIONS, SEE LABOR BOARD V. KATZ, 369 U.S. 736; LABOR BOARD V.
CROMPTON-HIGHLAND MILLS, INC., 337 U.S. 217. 

FN8  SEC 301, LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 156, 29
U.S.C. SEC 185. 

FN9  THE COURT OF APPEALS IN THIS CASE RELIED UPON ITS PREVIOUS
DECISION IN SQUARE D CO. V. LABOR BOARD, 332 F.2D 360.  BUT SQUARE D
INVOLVED A COLLECTIVE AGREEMENT THAT PROVIDED FOR ARBITRATION.  SEE
NOTE, USE OF AN ARBITRATION CLAUSE, 41 IND. L.J. 455, 469 (1966). 

FN10  SEE ALSO CLOVERLEAF DIV. OF ADAMS DAIRY CO., 147 N.L.R.B. 1410,
1416 (1964), WHERE THE BOARD MADE THE FOLLOWING OBSERVATION TO JUSTIFY,
IN PART, ITS DECISION TO CONSTRUE A LABOR CONTRACT IN THE COURSE OF AN
UNFAIR LABOR PRACTICE PROCEEDING: 

"  ...  IT AFFIRMATIVELY APPEARS THAT NEITHER PARTY HAS EVEN SO MUCH
AS SOUGHT TO INVOKE ARBITRATION.  NOR IS THIS A CASE INVOLVING AN
ALLEGED UNFAIR LABOR PRACTICE, THE EXISTENCE OF WHICH TURNS PRIMARILY
ON AN INTERPRETATION OF SPECIFIC CONTRACTUAL PROVISIONS, UNQUESTIONABLY
ENCOMPASSED BY THE CONTRACT'S ARBITRATION PROVISIONS, AND COMING TO US
IN A CONTEXT THAT MAKES IT REASONABLY PROBABLE THAT ARBITRATION
SETTLEMENT OF THE CONTRACT DISPUTE WOULD ALSO PUT AT REST THE UNFAIR
LABOR PRACTICE CONTROVERSY IN A MANNER SUFFICIENT TO EFFECTUATE THE
POLICIES OF THE ACT."  (FOOTNOTES OMITTED.) 

CF. SPIELBERG MFG. CO., 112 N.L.R.B. 1080 (1955). 

FN11  AN EARLIER VERSION OF THE SENATE BILL CONTAINED THE FOLLOWING
PROVISION: 

"SEC. 8.  (A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER: 

    *         *         *         *         * 

"(6)  TO VIOLATE THE TERMS OF A COLLECTIVE-BARGAINING AGREEMENT OR
THE TERMS OF AN AGREEMENT TO SUBMIT A LABOR DISPUTE TO ARBITRATION  ...
." 

LABOR ORGANIZATIONS.  S. 1126, 80TH CONG., 1ST SESS., 1 LEGIS.  HISTORY
OF LMRA 109-111, 114.  NEITHER OF THESE PROVISIONS WAS IN THE BILL
ENACTED INTO LAW. 

FN12  SEC 301, LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 156, 29
U.S.C. SEC 185. 

FN13  CONGRESS WAS ALSO CONCERNED WITH THE POSSIBILITY OF CONFLICTING
DECISIONS THAT WOULD RESULT FROM PLACING ALL QUESTIONS OF CONTRACT
INTERPRETATION BEFORE BOTH THE BOARD AND THE COURTS.  SEE 93 CONG. REC.
4033, 2 LEGIS.  HISTORY OF LMRA 1043 (REMARKS OF SENATOR MURRAY); 93
CONG. REC. 6443, 2 LEGIS.  HISTORY OF LMRA 1539.  BUT SUCH A
POSSIBILITY DOES NOT ARISE IN A CASE LIKE THE PRESENT ONE, SINCE COURTS
HAVE NO JURISDICTION TO ENFORCE THE UNION'S STATUTORY RIGHTS UNDER
SECS. 8(A)(5) AND (1). 

FN14  IN MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270, THE
EMPLOYER WAS CHARGED WITH A VIOLATION OF SECS. 8(A)(1), (2) AND (3),
AND NOT WITH A FAILURE TO BARGAIN.  BUT NOTHING IS SUGGESTED THAT WOULD
JUSTIFY DISTINGUISHING THE CASE ON THAT GROUND. 

FN15  THE PRECISE NATURE OF THE UNION'S CASE IN COURT IS NOT READILY
APPARENT.  IF DAMAGES FOR BREACH OF CONTRACT WERE SOUGHT, THE UNION
WOULD HAVE DIFFICULTY IN ESTABLISHING THE AMOUNT OF INJURY CAUSED BY
RESPONDENT'S ACTION.  FOR THE REAL INJURY IN THIS CASE IS TO THE
UNION'S STATUS AS BARGAINING REPRESENTATIVE, AND IT WOULD BE DIFFICULT
TO TRANSLATE SUCH DAMAGE INTO DOLLARS AND CENTS.  IF AN INJUNCTION WERE
SOUGHT TO VINDICATE THE UNION'S CONTRACTUAL RIGHTS, THE PROBLEM OF THE
APPLICABILITY OF THE NORRIS-LAGUARDIA ACT WOULD HAVE TO BE FACED.  A
FEDERAL INJUNCTION ISSUING FROM A COURT WITH SEC 301 JURISDICTION MIGHT
BE BARRED BY SEC 7 OF THAT ACT.  SEE INTERNATIONAL UNION OF ELECTRICAL
WORKERS V. GENERAL ELECTRIC CO., 341 F.2D 571 (C.A. 2D CIR.); LOCAL NO.
861 V. STONE & WEBSTER CORP., 163 F. SUPP. 894 (D.C.W.D. LA.).  CF.
SINCLAIR REFINING CO. V. ATKINSON, 370 U.S. 195; PUBLISHERS' ASSN. V.
NEW YORK MAILERS' UNION, 317 F.2D 624 (C.A.2D CIR.), CERT. GRANTED, 375
U.S. 901, JUDGMENT VACATED IN PART FOR DISMISSAL AS MOOT, 376 U.S.
775.  WHETHER A STATE INJUNCTION MIGHT BE SIMILARLY BARRED IN SUITS
GOVERNED BY FEDERAL LABOR LAW, TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369
U.S. 95, IS AN OPEN QUESTION.  SEE CHARLES DOWD BOX CO. V. COURTNEY,
368 U.S. 502, 514, N. 8.  THUS, IT MAY BE THAT THE ONLY REMEDY IN COURT
WHICH WOULD BE AVAILABLE TO THE UNION WOULD BE A SUIT FOR A DECLARATORY
JUDGMENT, ASSUMING SUCH A SUIT IN THESE CIRCUMSTANCES WOULD BE
MAINTAINABLE UNDER STATE OR FEDERAL LAW. 

FN16  THE INSTANT CHARGE, FOR EXAMPLE, WAS FILED JULY 31, 1963. 

FN17  THE RESPONDENT POINTS TO TWO OTHER LABOR CONTRACTS IN ITS AREA
TO SUPPORT ITS VERSION OF THE PROVISION HERE IN QUESTION, BUT THOSE
AGREEMENTS, EVEN IF RELEVANT, FALL SHORT OF SUBSTANTIATING ITS
POSITION.  IN ONE, A PREMIUM WAS PAID TO MEMBERS OF TWO-MAN CREWS WHO
ACCOMPLISHED PRESCRIBED PRODUCTION GOALS.  BUT THE RESPONDENT DOES NOT
SHOW THAT THIS PREMIUM LEVELED A WAGE DIFFERENTIAL SET UP BY THE
COLLECTIVE BARGAINING AGREEMENT.  IN THE OTHER, A LUMBER COMPANY'S HEAD
SAWYER RECEIVED AN HOURLY BONUS IF THE PLANT EXCEEDED A CERTAIN MONTHLY
OUTPUT. 
..END :















NATIONAL LABOR RELATIONS BOARD V. ACME INDUSTRIAL CO. 385 U.S. 432 


NO. 52.  ARGUED NOVEMBER 14, 1966.  - DECIDED JANUARY 9, 1967.  - 351
F.2D 258, REVERSED AND REMANDED. 


A COLLECTIVE BARGAINING AGREEMENT, WHICH CONTAINED PROCEDURES FOR
PROCESSING GRIEVANCES CULMINATING IN COMPULSORY AND BINDING
ARBITRATION, PROVIDED THAT IT WAS THE RESPONDENT, EMPLOYER'S, POLICY
NOT TO "SUBCONTRACT WORK WHICH IS NORMALLY PERFORMED BY EMPLOYEES IN
THE BARGAINING UNIT," AND THAT, EXCEPT AS PROVIDED THEREIN, IF
"EQUIPMENT OF THE PLANT  ...  IS HEREAFTER MOVED TO ANOTHER LOCATION OF
THE COMPANY, EMPLOYEES  ...  WHO ARE SUBJECT TO REDUCTION IN
CLASSIFICATION OR LAYOFF AS A RESULT THEREOF MAY TRANSFER TO THE NEW
LOCATION WITH FULL RIGHTS AND SENIORITY  ...  ."  DURING THE CONTRACT
TERM CERTAIN MACHINERY WAS REMOVED FROM THE PLANT AND IN RESPONSE TO
THE UNION'S QUERY RESPONDENT STATED THAT THERE WAS NO VIOLATION OF THE
AGREEMENT AND THEREFORE NO OBLIGATION TO ANSWER QUESTIONS ABOUT THE
MACHINES.  THE UNION FILED GRIEVANCES AND REQUESTED INFORMATION
CONCERNING THE EQUIPMENT, WHICH WAS REFUSED BY RESPONDENT.  UNFAIR
LABOR PRACTICE CHARGES WERE THEN FILED WITH THE NLRB WHICH HELD THAT
RESPONDENT VIOLATED SEC.  8(A)(5) OF THE NATIONAL LABOR RELATIONS ACT
BY REFUSING TO BARGAIN IN GOOD FAITH.  THE NLRB ISSUED A CEASE-AND
DESIST ORDER AFTER FINDING THAT THE INFORMATION WAS NECESSARY TO ENABLE
THE UNION TO EVALUATE THE GRIEVANCES FILED AND NOTING THAT THE
AGREEMENT CONTAINED NO WAIVER OF THE UNION'S STATUTORY RIGHT TO SUCH
INFORMATION.  THE COURT OF APPEALS REFUSED TO ENFORCE THE NLRB'S ORDER,
HOLDING THAT THE PROVISION FOR BINDING ARBITRATION FORECLOSED THE
NLRB'S EXERCISE OF POWER, AS THE CONSTRUCTION AND APPLICATION OF THE
CONTRACT PROVISIONS ARE SOLELY FOR THE ARBITRATOR.  HELD:  THE
ARBITRATION PROVISION IN THE AGREEMENT DID NOT PRECLUDE THE NLRB FROM
FINDING THAT RESPONDENT VIOLATED SEC. 8(A)(5) BY REFUSING TO FURNISH
THE UNION WITH INFORMATION NECESSARY TO THE PROPER PERFORMANCE OF ITS
REPRESENTATIVE DUTIES.  PP. 435-439. 

(A)  THE EMPLOYER HAS A GENERAL OBLIGATION TO PROVIDE INFORMATION
NEEDED BY THE BARGAINING REPRESENTATIVE FOR THE PROPER PERFORMANCE OF
ITS DUTIES DURING THE TERM OF A COLLECTIVE BARGAINING AGREEMENT.  PP.
435-436. 

(B)  THE NLRB DID NOT MAKE A BINDING CONSTRUCTION OF THE CONTRACT BUT
ONLY ACTED ON THE PROBABILITY THAT THE DESIRED INFORMATION WAS RELEVANT
AND USEFUL TO THE UNION IN CARRYING OUT ITS STATUTORY DUTIES AND
RESPONSIBILITIES.  P. 437. 

(C)  THE NLRB'S ACTION WAS IN AID OF THE ARBITRAL PROCESS BY HELPING
TO SIFT OUT UNMERITORIOUS CLAIMS.  P. 438. 

NATIONAL LABOR RELATIONS BOARD V. ACME INDUSTRIAL CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN NLRB V. C&C PLYWOOD CORP., ANTE, P. 421, DECIDED TODAY, WE DEALT
WITH ONE ASPECT OF AN EMPLOYER'S DUTY TO BARGAIN DURING THE TERM OF A
COLLECTIVE BARGAINING AGREEMENT.  IN THIS CASE WE DEAL WITH ANOTHER -
INVOLVING THE OBLIGATION TO FURNISH INFORMATION THAT ALLOWS A UNION TO
DECIDE WHETHER TO PROCESS A GRIEVANCE. 

IN APRIL 1963, AT THE CONCLUSION OF A STRIKE, THE RESPONDENT ENTERED
INTO A COLLECTIVE BARGAINING AGREEMENT WITH THE UNION WHICH WAS THE
CERTIFIED REPRESENTATIVE OF ITS EMPLOYEES.  THE AGREEMENT CONTAINED TWO
COMPANY'S GENERAL POLICY NOT TO SUBCONTRACT WORK WHICH IS NORMALLY
PERFORMED BY EMPLOYEES IN THE BARGAINING UNIT WHERE THIS WILL CAUSE THE
LAYOFF OF EMPLOYEES OR PREVENT THE RECALL OF EMPLOYEES WHO WOULD
NORMALLY PERFORM THIS WORK  ...  ."  IN ART. VI, SEC 10, THE RESPONDENT
AGREED THAT "IN THE EVENT THE EQUIPMENT OF THE PLANT  ... IS HEREAFTER
MOVED TO ANOTHER LOCATION OF THE COMPANY, EMPLOYEES WORKING IN THE
PLANT  ...  WHO ARE SUBJECT TO REDUCTION IN CLASSIFICATION OR LAYOFF AS
A RESULT THEREOF MAY TRANSFER TO THE NEW LOCATION WITH FULL RIGHTS AND
SENIORITY, UNLESS THERE IS THEN IN EXISTENCE AT THE NEW LOCATION A
COLLECTIVE BARGAINING AGREEMENT COVERING  ...  EMPLOYEES AT SUCH
LOCATION."  A GRIEVANCE PROCEDURE CULMINATING IN COMPULSORY AND BINDING
ARBITRATION WAS ALSO INCORPORATED INTO THE COLLECTIVE AGREEMENT. 

THE PRESENT CONTROVERSY BEGAN IN JANUARY 1964, WHEN THE UNION
DISCOVERED THAT CERTAIN MACHINERY WAS BEING REMOVED FROM THE
RESPONDENT'S PLANT.  WHEN ASKED BY UNION REPRESENTATIVES ABOUT THIS
MOVEMENT, THE RESPONDENT'S FOREMEN REPLIED THAT THERE HAD BEEN NO
VIOLATION OF THE COLLECTIVE AGREEMENT AND THAT THE COMPANY, THEREFORE,
WAS NOT OBLIGED TO ANSWER ANY QUESTIONS REGARDING THIS MACHINERY. 
AFTER THIS REBUFF, THE UNION FILED 11 GRIEVANCES CHARGING THE
RESPONDENT WITH VIOLATIONS OF THE ABOVE QUOTED CLAUSES OF THE
COLLECTIVE AGREEMENT.  THE PRESIDENT OF THE UNION THEN WROTE A LETTER
TO THE RESPONDENT, REQUESTING "THE FOLLOWING INFORMATION AT THE
EARLIEST POSSIBLE DATE: 

"1.  THE APPROXIMATE DATES WHEN EACH PIECE OF EQUIPMENT WAS MOVED OUT
OF THE PLANT. 

"2.  THE PLACE TO WHICH EACH PIECE OF EQUIPMENT WAS MOVED AND WHETHER
SUCH PLACE IS A FACILITY WHICH IS OPERATED OR CONTROLLED BY THE
COMPANY. 

"3.  THE NUMBER OF MACHINES OR EQUIPMENT THAT WAS MOVED OUT OF THE
PLANT. 

"4.  WHAT WAS THE REASON OR PURPOSE OF MOVING THE EQUIPMENT OUT OF
THE PLANT. 

"5.  IS THIS EQUIPMENT USED FOR PRODUCTION ELSEWHERE." 

THE COMPANY REPLIED BY LETTER THAT IT HAD NO DUTY TO FURNISH THIS
INFORMATION SINCE NO LAYOFFS OR REDUCTIONS IN JOB CLASSIFICATION HAD
OCCURRED WITHIN FIVE DAYS (THE TIME LIMITATION SET BY THE CONTRACT FOR
FILING GRIEVANCES) PRIOR TO THE UNION'S FORMAL REQUEST FOR
INFORMATION. 

THIS REFUSAL PROMPTED THE UNION TO FILE UNFAIR LABOR PRACTICE CHARGES
WITH THE NATIONAL LABOR RELATIONS BOARD.  A COMPLAINT WAS ISSUED, AND
THE BOARD, OVERRULING ITS TRIAL EXAMINER, HELD THE RESPONDENT HAD
VIOLATED SEC. 8(A)(5) OF THE ACT (FN1) BY REFUSING TO BARGAIN IN GOOD
FAITH.  ACCORDINGLY, IT ISSUED A CEASE-AND-DESIST ORDER.  THE BOARD
FOUND THAT THE INFORMATION REQUESTED WAS "NECESSARY IN ORDER TO ENABLE
THE UNION TO EVALUATE INTELLIGENTLY THE GRIEVANCES FILED" AND POINTED
OUT THAT THE AGREEMENT CONTAINED NO "CLAUSE BY WHICH THE UNION WAIVES
ITS STATUTORY RIGHT TO SUCH INFORMATION." 

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT REFUSED TO ENFORCE THE
BOARD'S ORDER.  351 F.2D 258.  IT DID NOT QUESTION THE RELEVANCE OF THE
INFORMATION NOR THE FINDING THAT THE UNION HAD NOT EXPRESSLY WAIVED ITS
RIGHT TO THE INFORMATION.  THE COURT RULED, HOWEVER, THAT THE EXISTENCE
OF A PROVISION FOR BINDING ARBITRATION OF DIFFERENCES CONCERNING THE
MEANING AND APPLICATION OF THE AGREEMENT FORECLOSED THE BOARD FROM
EXERCISING ITS STATUTORY POWER.  THE COURT CITED UNITED STEELWORKERS V.
WARRIOR & GULF CO., 363 U.S. 574, AND UNITED STEELWORKERS V. AMERICAN
MFG. CO., 363 U.S. 564, AS ARTICULATING A NATIONAL LABOR POLICY
FAVORING ARBITRATION AND REQUIRING THE BOARD'S DEFERENCE TO AN
ARBITRATOR WHEN CONSTRUCTION AND APPLICATION OF A LABOR AGREEMENT ARE
IN ISSUE.  WE GRANTED CERTIORARI TO CONSIDER THE SUBSTANTIAL QUESTION
OF FEDERAL LABOR LAW THUS PRESENTED.  383 U.S. 905. 

THERE CAN BE NO QUESTION OF THE GENERAL OBLIGATION OF AN EMPLOYER TO
PROVIDE INFORMATION THAT IS NEEDED BY THE BARGAINING REPRESENTATIVE FOR
THE PROPER PERFORMANCE OF ITS DUTIES.  LABOR BOARD V. TRUITT MFG. CO.,
351 U.S. 149.  SIMILARLY, THE DUTY TO BARGAIN UNQUESTIONABLY EXTENDS
BEYOND THE PERIOD OF CONTRACT NEGOTIATIONS AND APPLIES TO LABOR
MANAGEMENT RELATIONS DURING THE TERM OF AN AGREEMENT.  NLRB V. C&C
PLYWOOD CORP., ANTE, P. 421; LABOR BOARD V. F.W. WOOLWORTH CO., 352
U.S. 938.  THE ONLY REAL ISSUE IN THIS CASE, THEREFORE, IS WHETHER THE
BOARD MUST AWAIT AN ARBITRATOR'S DETERMINATION OF THE RELEVANCY OF THE
REQUESTED INFORMATION BEFORE IT CAN ENFORCE THE UNION'S STATUTORY
RIGHTS UNDER SEC. 8(A)(5). 

THE TWO CASES UPON WHICH THE COURT BELOW RELIED, AND THE THIRD OF THE
STEELWORKERS TRILOGY, UNITED STEELWORKERS V. ENTERPRISE WHEEL & CAR
CORP., 363 U.S. 593, DO NOT THROW MUCH LIGHT ON THE PROBLEM.  FOR THOSE
CASES DEALT WITH THE RELATIONSHIP OF COURTS TO ARBITRATORS WHEN AN
ARBITRATION AWARD IS UNDER REVIEW OR WHEN THE EMPLOYER'S AGREEMENT TO
ARBITRATE IS IN QUESTION.  THE WEIGHING OF THE ARBITRATOR'S GREATER
INSTITUTIONAL COMPETENCY, WHICH WAS SO VITAL TO THOSE DECISIONS, MUST
BE EVALUATED IN THAT CONTEXT.  363 U.S., AT 567, 581-582, 596-597.  THE
RELATIONSHIP OF THE BOARD TO THE ARBITRATION PROCESS IS OF A QUITE
DIFFERENT ORDER.  SEE CAREY V. WESTINGHOUSE CORP., 375 U.S. 261, 269
272.  MOREOVER, IN ASSESSING THE BOARD'S POWER TO DEAL WITH UNFAIR
LABOR PRACTICES, PROVISIONS OF THE LABOR ACT WHICH DO NOT APPLY TO THE
POWER OF THE COURTS UNDER SEC. 301, (FN2) MUST BE CONSIDERED.  SECTION
8(A)(5) PROSCRIBES FAILURE TO BARGAIN COLLECTIVELY IN ONLY THE MOST
GENERAL TERMS, BUT SEC. 8(D) AMPLIFIES IT BY DEFINING "TO BARGAIN
COLLECTIVELY" AS INCLUDING "THE MUTUAL OBLIGATION OF THE EMPLOYER AND
THE REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND
CONFER IN GOOD FAITH WITH RESPECT TO  ...  ANY QUESTION ARISING UNDER
AN AGREEMENT  ...  ."  (FN3) AND SEC.  10(A) (FN4) PROVIDES:  "THE
BOARD IS EMPOWERED  ...  TO PREVENT ANY PERSON FROM ENGAGING IN ANY
UNFAIR LABOR PRACTICE  ...  .  THIS POWER SHALL NOT BE AFFECTED BY ANY
OTHER MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN OR MAY BE
ESTABLISHED BY AGREEMENT, LAW, OR OTHERWISE  ... ."  THUS, TO VIEW THE
STEELWORKERS DECISIONS AS AUTOMATICALLY REQUIRING THE BOARD IN THIS
CASE TO DEFER TO THE PRIMARY DETERMINATION OF AN ARBITRATOR  (FN5) IS
TO OVERLOOK IMPORTANT DISTINCTIONS BETWEEN THOSE CASES AND THIS ONE. 

BUT EVEN IF THE POLICY OF THE STEELWORKERS CASES WERE THOUGHT TO
APPLY WITH THE SAME VIGOR TO THE BOARD AS TO THE COURTS, THAT POLICY
WOULD NOT REQUIRE THE BOARD TO ABSTAIN HERE.  FOR WHEN IT ORDERED THE
EMPLOYER TO FURNISH THE REQUESTED INFORMATION TO THE UNION, THE BOARD
WAS NOT MAKING A BINDING CONSTRUCTION OF THE LABOR CONTRACT.  IT WAS
ONLY ACTING UPON THE PROBABILITY THAT THE DESIRED INFORMATION WAS
RELEVANT, AND THAT IT WOULD BE OF USE TO THE UNION IN CARRYING OUT ITS
STATUTORY DUTIES AND RESPONSIBILITIES.  THIS DISCOVERY-TYPE STANDARD
DECIDED NOTHING ABOUT THE MERITS OF THE UNION'S CONTRACTUAL CLAIMS. 
(FN6)  WHEN THE RESPONDENT FURNISHES THE REQUESTED INFORMATION, IT MAY
APPEAR THAT NO SUBCONTRACTING OR WORK TRANSFER HAS OCCURRED, AND,
ACCORDINGLY, THAT THE GRIEVANCES FILED ARE WITHOUT MERIT.  ON THE OTHER
HAND, EVEN IF IT APPEARS THAT SUCH ACTIVITIES HAVE TAKEN PLACE, AN
ARBITRATOR MIGHT UPHOLD THE RESPONDENT'S CONTENTION THAT NO BREACH OF
THE AGREEMENT OCCURRED BECAUSE NO EMPLOYEES WERE LAID OFF OR REDUCED IN
GRADE WITHIN FIVE DAYS PRIOR TO THE FILING OF ANY GRIEVANCE.  SUCH
CONCLUSIONS WOULD CLEARLY NOT BE PRECLUDED BY THE BOARD'S THRESHOLD
DETERMINATION CONCERNING THE POTENTIAL RELEVANCE OF THE REQUESTED
INFORMATION.  THUS, THE ASSERTION OF JURISDICTION BY THE BOARD IN THIS
CASE IN NO WAY THREATENS THE POWER WHICH THE PARTIES HAVE GIVEN THE
ARBITRATOR TO MAKE BINDING INTERPRETATIONS OF THE LABOR AGREEMENT. 
(FN7)

FAR FROM INTRUDING UPON THE PRESERVE OF THE ARBITRATOR, THE BOARD'S
ACTION WAS IN AID OF THE ARBITRAL PROCESS.  ARBITRATION CAN FUNCTION
PROPERLY ONLY IF THE GRIEVANCE PROCEDURES LEADING TO IT CAN SIFT OUT
UNMERITORIOUS CLAIMS.  FOR IF ALL CLAIMS ORIGINALLY INITIATED AS
GRIEVANCES HAD TO BE PROCESSED THROUGH TO ARBITRATION, THE SYSTEM WOULD
BE WOEFULLY OVERBURDENED.  YET, THAT IS PRECISELY WHAT THE RESPONDENT'S
RESTRICTIVE VIEW WOULD REQUIRE.  IT WOULD FORCE THE UNION TO TAKE A
GRIEVANCE ALL THE WAY THROUGH TO ARBITRATION WITHOUT PROVIDING THE
OPPORTUNITY TO EVALUATE THE MERITS OF THE CLAIM.  (FN8)  THE EXPENSE OF
ARBITRATION MIGHT BE PLACED UPON THE UNION ONLY FOR IT TO LEARN THAT
THE MACHINES HAD BEEN RELEGATED TO THE JUNK HEAP.  NOTHING IN FEDERAL
LABOR LAW REQUIRES SUCH A RESULT. 

WE HOLD THAT THE BOARD'S ORDER IN THIS CASE WAS CONSISTENT BOTH WITH
THE EXPRESS TERMS OF THE LABOR ACT AND WITH THE NATIONAL LABOR POLICY
FAVORING ARBITRATION WHICH OUR DECISIONS HAVE DISCERNED AS UNDERLYING
THAT LAW.  ACCORDINGLY, WE REVERSE THE JUDGMENT AND REMAND THE CASE TO
THE COURT OF APPEALS WITH DIRECTIONS TO ENFORCE THE BOARD'S ORDER. 
REVERSED AND REMANDED. 

FN1  NATIONAL LABOR RELATIONS ACT, AS AMENDED, 61 STAT. 141, 29
U.S.C. SEC. 158(A)(5). 

FN2  LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 156, 29 U.S.C.
SEC 185. 

FN3  CF. UNITED STEELWORKERS V. WARRIOR & GULF CO., 363 U.S. 574,
581:  "THE GRIEVANCE PROCEDURE IS, IN OTHER WORDS, A PART OF THE
CONTINUOUS COLLECTIVE BARGAINING PROCESS." 

FN4  61 STAT. 146, 29 U.S.C. SEC. 160(A). 

FN5  SEE SINCLAIR REFINING CO. V. N.L.R.B., 306 F.2D 569, 570 (C.A.
5TH CIR.). 

FN6  CF. 4 MOORE, FEDERAL PRACTICE PARA. 26.16(1), 1175-1176 (2D
ED.): 

"IT MUST BE BORNE IN MIND THAT THE STANDARD FOR DETERMINING RELEVANCY
AT A DISCOVERY EXAMINATION IS NOT AS WELL DEFINED AS AT THE TRIAL  ...
.  SINCE THE MATTERS IN DISPUTE BETWEEN THE PARTIES ARE NOT AS WELL
DETERMINED AT DISCOVERY EXAMINATIONS AS AT THE TRIAL, COURTS OF
NECESSITY MUST FOLLOW A MORE LIBERAL STANDARD AS TO RELEVANCY." 

ID., AT 1181: 

"EXAMINATION AS TO RELEVANT MATTERS SHOULD BE ALLOWED WHETHER OR NOT
THE THEORY OF THE COMPLAINT IS SOUND OR THE FACTS, IF PROVED, WOULD
SUPPORT THE RELIEF SOUGHT." 

FN7  THIS CASE, THEREFORE, DIFFERS FROM NLRB V. C&C PLYWOOD CORP.,
ANTE, P. 421, WHERE THE BOARD'S DETERMINATION THAT THE EMPLOYER DID NOT
HAVE A CONTRACTUAL RIGHT TO INSTITUTE A PREMIUM PAY PLAN WAS A
DETERMINATION ON THE MERITS.  SEE C&C PLYWOOD, ANTE, AT 426, AND N.
10. 

FN8  SEE FAFNIR BEARING CO. V. N.L.R.B., 362 F.2D 716, 721: 

"BY PREVENTING THE UNION FROM CONDUCTING THESE STUDIES FOR AN
INTELLIGENT APPRAISAL OF ITS RIGHT TO GRIEVE, THE COMPANY WAS, IN
ESSENCE, REQUIRING IT TO PLAY A GAME OF BLIND MAN'S BLUFF." 
..END :














SWANN V. ADAMS 385 U.S. 440 


NO. 136.  ARGUED DECEMBER 6, 1966.  - DECIDED JANUARY 9, 1967.  - 258 F.
SUPP. 819, REVERSED. 


FOLLOWING THIS COURT'S DECISIONS IN SWANN V. ADAMS, INVALIDATING THE
APPORTIONMENT OF THE FLORIDA LEGISLATURE (378 U.S. 553) AND THE
SUBSEQUENT REAPPORTIONMENT WHICH THE DISTRICT COURT HAD FOUND
UNCONSTITUTIONAL BUT APPROVED ON AN INTERIM BASIS (383 U.S. 210), THE
FLORIDA LEGISLATURE ADOPTED STILL ANOTHER LEGISLATIVE REAPPORTIONMENT
PLAN, WHICH APPELLANTS, RESIDENTS AND VOTERS OF DADE COUNTY, FLORIDA,
ATTACKED AS FAILING TO MEET THE STANDARDS OF VOTER EQUALITY SET FORTH
IN REYNOLDS V. SIMS, 377 U.S. 533, AND COMPANION CASES.  THE NEW PLAN
PROVIDES FOR 48 SENATORS AND 117 REPRESENTATIVES.  THE SENATE DISTRICTS
RANGE FROM 15.09% OVERREPRESENTATION TO 10.56% UNDERREPRESENTATION, THE
RATIO BETWEEN THE LARGEST AND SMALLEST DISTRICT BEING 1.30 TO 1.  THE
HOUSE DISTRICTS RANGE FROM 18.28% OVERREPRESENTATION TO 15.27%
UNDERREPRESENTATION, THE RATIO BETWEEN THE LARGEST AND THE SMALLEST
DISTRICT BEING 1.41 TO 1.  THE STATE FAILED TO PRESENT ANY ACCEPTABLE
REASONS FOR THE POPULATION VARIANCE BETWEEN DISTRICTS, INDICATING ONLY
THAT IT WAS ATTEMPTING TO FOLLOW CONGRESSIONAL DISTRICT LINES AND THAT
ITS PLAN CAME AS CLOSE AS "PRACTICAL" TO COMPLETE POPULATION EQUALITY,
THOUGH APPELLANTS' PROPOSED PLAN SHOWED THE FEASIBILITY OF MEASURABLY
REDUCING POPULATION DIFFERENCES BETWEEN DISTRICTS.  THOUGH RECOGNIZING
THAT "APPORTIONMENT MUST BE SUBSTANTIALLY ON A POPULATION BASIS," THE
DISTRICT COURT HELD THE VARIATIONS NOT DISCRIMINATORY AND UPHELD THE
PLAN.  HELD: 

1.  APPELLANTS HAVE STANDING TO ATTACK THE REAPPORTIONMENT.  P. 443. 

2.  THE STATE'S FAILURE TO ARTICULATE ACCEPTABLE REASONS FOR
POPULATION VARIANCES BETWEEN DISTRICTS INVALIDATES THE REAPPORTIONMENT
PLAN.  PP. 443-447. 

(A)  ALLOWABLE DEVIATIONS FROM EQUALITY OF POPULATION BETWEEN
LEGISLATIVE DISTRICTS ARE CONFINED TO MINOR VARIATIONS WHICH "ARE BASED
ON LEGITIMATE CONSIDERATIONS INCIDENT TO THE EFFECTUATION OF A RATIONAL
STATE POLICY."  REYNOLDS V. SIMS, SUPRA, AT 579.  P. 444. 

(B)  MINOR VARIATIONS FROM A PURE POPULATION STANDARD MUST BE
NONDISCRIMINATORY AND JUSTIFIED BY STATE POLICY CONSIDERATIONS SUCH AS
INTEGRITY OF POLITICAL SUBDIVISIONS, MAINTENANCE OF COMPACTNESS AND
CONTIGUITY IN LEGISLATIVE DISTRICTS, OR RECOGNITION OF NATURAL OR
HISTORICAL BOUNDARY LINES.  P. 444. 

(C)  VARIATION FROM THE NORM APPROVED IN ONE STATE HAS LITTLE
RELEVANCE TO THE VALIDITY OF A SIMILAR VARIATION IN ANOTHER STATE.  P.
445. 

SWANN ET AL. V. ADAMS, SECRETARY OF STATE OF FLORIDA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS STILL ANOTHER DEVELOPMENT IN THE EFFORTS OF THE
STATE OF FLORIDA TO APPORTION ITS LEGISLATURE IN ACCORDANCE WITH THE
REQUIREMENTS OF THE FEDERAL CONSTITUTION.  THERE HAVE BEEN PREVIOUS
CHAPTERS IN THIS STORY.  THE LITIGATION BEGAN IN 1962.  ON JUNE 22,
1964, IN SWANN V. ADAMS, 378 U.S. 553, WE REVERSED THE JUDGMENT OF THE
THREE-JUDGE DISTRICT COURT UPHOLDING THE THEN-CURRENT LEGISLATIVE
APPORTIONMENT IN FLORIDA AND REMANDED THE CASE FOR FURTHER PROCEEDINGS,
CONSISTENT WITH THE COURT'S OPINION IN REYNOLDS V. SIMS, 377 U.S. 533,
AND ITS COMPANION CASES.  THE DISTRICT COURT THEN DEFERRED FURTHER
ACTION UNTIL THE CONCLUSION OF THE LEGISLATIVE SESSION WHICH CONVENED
ON APRIL 6, 1965.  THE LEGISLATURE PROCEEDED TO REAPPORTION THE STATE
ON JUNE 29, 1965.  THE DISTRICT COURT FORTHWITH HELD THE NEW PLAN
FAILED TO MEET THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT BUT
APPROVED THE PLAN ON AN INTERIM BASIS, LIMITING IT TO THE PERIOD ENDING
60 DAYS AFTER THE ADJOURNMENT OF THE 1967 SESSION OF THE FLORIDA
LEGISLATURE.  THIS COURT, FINDING NO WARRANT FOR PERPETUATING WHAT ALL
CONCEDED WAS AN UNCONSTITUTIONAL APPORTIONMENT FOR ANOTHER THREE YEARS,
REVERSED THE JUDGMENT AND REMANDED THE CASE TO THE DISTRICT COURT SO
THAT A VALID REAPPORTIONMENT PLAN WOULD BE MADE EFFECTIVE FOR THE 1966
ELECTIONS.  SWANN V. ADAMS, 383 U.S. 210.  THE FLORIDA LEGISLATURE
AGAIN ACTED ON THE MATTER IN MARCH 1966 BY ADOPTING STILL ANOTHER
REAPPORTIONMENT PLAN WHICH THE APPELLANTS PROMPTLY ATTACKED IN THE
DISTRICT COURT. 

THE NEW PLAN PROVIDES FOR 48 SENATORS AND 117 REPRESENTATIVES, AND
INCLUDES WHAT IN EFFECT ARE MULTIMEMBER DISTRICTS FOR EACH HOUSE.  THE
SENATE DISTRICTS RANGE FROM 87,595 TO 114,053 IN POPULATION PER
SENATOR, OR FROM 15.09% OVERREPRESENTED TO 10.56% UNDERREPRESENTED. 
THE RATIO BETWEEN THE LARGEST AND THE SMALLEST DISTRICT IS THUS 1.30 TO
1.  THE DEVIATION FROM THE AVERAGE POPULATION PER SENATOR IS GREATER
THAN 15% IN ONE SENATORIAL DISTRICT, IS GREATER THAN 14% IN FIVE MORE
DISTRICTS AND IS MORE THAN 10% IN STILL SIX OTHER DISTRICTS. 
APPROXIMATELY 25% OF THE STATE'S POPULATION LIVING IN ONE QUARTER OF
THE TOTAL NUMBER OF SENATORIAL DISTRICTS IS UNDERREPRESENTED OR
OVERREPRESENTED BY AT LEAST 10%.  THE MINIMUM PERCENTAGE OF PERSONS
THAT COULD ELECT A MAJORITY OF 25 SENATORS IS 48.38%. 

IN THE HOUSE THE POPULATION PER REPRESENTATIVE RANGES FROM 34,584 TO
48,785 OR FROM 18.28% OVERREPRESENTED TO 15.27% UNDERREPRESENTED.  THE
RATIO BETWEEN THE LARGEST AND THE SMALLEST REPRESENTATIVE DISTRICT IS
1.41 TO 1.  TWO DISTRICTS VARY FROM THE NORM BY MORE THAN 18% AND
ANOTHER BY MORE THAN 15%, THESE THREE DISTRICTS HAVING SEVEN OF THE 117
REPRESENTATIVES.  TEN OTHER DISTRICTS WITH 22 REPRESENTATIVES VARY FROM
THE NORM BY MORE THAN 10%.  THERE IS THUS A DEVIATION OF MORE THAN 10%
IN DISTRICTS WHICH ELECT 29 OF THE 117 REPRESENTATIVES; 24.35% OF THE
STATE'S POPULATION LIVES IN THESE DISTRICTS.  THE MINIMUM PERCENTAGE OF
PERSONS THAT COULD ELECT A MAJORITY OF 59 REPRESENTATIVES IS 47.79%. 

THE DISTRICT COURT RECOGNIZED THAT "APPORTIONMENT MUST BE
SUBSTANTIALLY ON A POPULATION BASIS" BUT THAT "MATHEMATICAL EXACTNESS
OR PRECISION IS NOT REQUIRED."  IT WENT ON TO HOLD "SUCH DEPARTURES AS
THERE ARE FROM THE IDEAL ARE NOT SUFFICIENT IN NUMBER OR GREAT ENOUGH
IN PERCENTAGES TO REQUIRE AN UPSETTING OF THE LEGISLATIVE PLAN  ...  .
WHAT DEVIATION THERE IS DOES NOT DISCRIMINATE TO ANY GREAT EXTENT
AGAINST ANY SECTION OF THE STATE OR AGAINST EITHER RURAL OR URBAN
INTEREST."  258 F. SUPP. 819, 826, 827.  ACCORDINGLY, THE PLAN WAS HELD
CONSTITUTIONAL. 

THE STATE WOULD HAVE US DISMISS THIS CASE FOR LACK OF STANDING ON THE
PART OF APPELLANTS TO MAINTAIN THIS APPEAL BECAUSE APPELLANTS ARE FROM
DADE COUNTY, FLORIDA, WHICH APPELLANTS CONCEDE HAS RECEIVED
CONSTITUTIONAL TREATMENT UNDER THE LEGISLATIVE PLAN.  APPELLANTS,
HOWEVER, HAD BEFORE THE DISTRICT COURT THEIR OWN PLAN WHICH WOULD HAVE
ACCORDED DIFFERENT TREATMENT TO DADE COUNTY IN SOME RESPECTS AS
COMPARED WITH THE LEGISLATIVE PLAN, AND THE ALTERNATIVE PLAN WAS
REJECTED BY THE DISTRICT COURT.  MOREOVER, THE DISTRICT COURT HAS
APPARENTLY CONSISTENTLY DENIED INTERVENTION TO OTHER PLAINTIFFS,
SEEMINGLY TREATING THE APPELLANTS AS REPRESENTING OTHER CITIZENS IN THE
STATE.  THE CHALLENGE TO STANDING CANNOT SUCCEED. 

WE REVERSE FOR THE FAILURE OF THE STATE TO PRESENT OR THE DISTRICT
COURT TO ARTICULATE ACCEPTABLE REASONS FOR THE VARIATIONS AMONG THE
POPULATIONS OF THE VARIOUS LEGISLATIVE DISTRICTS WITH RESPECT TO BOTH
THE SENATE AND HOUSE OF REPRESENTATIVES.  REYNOLDS V. SIMS, SUPRA,
RECOGNIZED THAT MATHEMATICAL EXACTNESS IS NOT REQUIRED IN STATE
APPORTIONMENT PLANS.  DE MINIMIS DEVIATIONS ARE UNAVOIDABLE, BUT
VARIATIONS OF 30% AMONG SENATE DISTRICTS AND 40% AMONG HOUSE DISTRICTS
CAN HARDLY BE DEEMED DE MINIMIS AND NONE OF OUR CASES SUGGESTS THAT
DIFFERENCES OF THIS MAGNITUDE WILL BE APPROVED WITHOUT A SATISFACTORY
EXPLANATION GROUNDED ON ACCEPTABLE STATE POLICY.  ON THE CONTRARY, THE
REYNOLDS OPINION LIMITED THE ALLOWABLE DEVIATIONS TO THOSE MINOR
VARIATIONS WHICH "ARE BASED ON LEGITIMATE CONSIDERATIONS INCIDENT TO
THE EFFECTUATION OF A RATIONAL STATE POLICY."  377 U.S. 533, 579.  THUS
THAT OPINION WENT ON TO INDICATE THAT VARIATIONS FROM A PURE POPULATION
STANDARD MIGHT BE JUSTIFIED BY SUCH STATE POLICY CONSIDERATIONS AS THE
INTEGRITY OF POLITICAL SUBDIVISIONS, THE MAINTENANCE OF COMPACTNESS AND
CONTIGUITY IN LEGISLATIVE DISTRICTS OR THE RECOGNITION OF NATURAL OR
HISTORICAL BOUNDARY LINES.  LIKEWISE, IN ROMAN V. SINCOCK, 377 U.S.
695, 710, THE COURT STATED THAT THE CONSTITUTION PERMITS "SUCH MINOR
DEVIATIONS ONLY AS MAY OCCUR IN RECOGNIZING CERTAIN FACTORS THAT ARE
FREE FROM ANY TAINT OF ARBITRARINESS OR DISCRIMINATION." 

THE STATE RELIES ON FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO V.
LUCAS, 379 U.S. 693; BURNETTE V. DAVIS, 382 U.S. 42; AND HARRISON V.
SCHAEFER, 383 U.S. 269, WHICH WERE PER CURIAM AFFIRMANCES OF LOWER
COURT JUDGMENTS IN REAPPORTIONMENT CASES.  THE STATE SUGGESTS THAT THE
PLANS APPROVED IN THOSE CASES INVOLVED VARIATIONS IN MAGNITUDE EQUAL TO
OR GREATER THAN THOSE REVEALED BY THE FLORIDA APPORTIONMENT, AND FOR
THAT REASON THE JUDGMENT HERE SHOULD BE AFFIRMED.  BUT IN NONE OF THESE
CASES WAS THE ISSUE OF THE VALIDITY OF THE DIFFERENCES IN POPULATION
BETWEEN VARIOUS LEGISLATIVE DISTRICTS EITHER RAISED OR RULED UPON IN
THIS COURT.  THERE WAS NO OCCASION TO EXPLORE WHETHER OR NOT THERE WAS
AMPLE JUSTIFICATION FOR THE CHALLENGED VARIATIONS.  AND IN LUCAS V.
FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S. 713, 727, 734-735,
THE COURT EXPRESSLY RESERVED DECISION UPON THE VALIDITY OF A VARIANCE
RATIO OF 1.7 TO 1.  IN ANY EVENT, THE FACT THAT A 10% OR 15% VARIATION
FROM THE NORM IS APPROVED IN ONE STATE HAS LITTLE BEARING ON THE
VALIDITY OF A SIMILAR VARIATION IN ANOTHER STATE.  "WHAT IS MARGINALLY
PERMISSIBLE IN ONE STATE MAY BE UNSATISFACTORY IN ANOTHER, DEPENDING
UPON THE PARTICULAR CIRCUMSTANCES OF THE CASE."  REYNOLDS V. SIMS, 377
U.S. 533, 578. 

AS THIS CASE COMES TO US WE HAVE NO ALTERNATIVE BUT TO REVERSE.  THE
DISTRICT COURT MADE NO ATTEMPT TO EXPLAIN OR JUSTIFY THE MANY
VARIATIONS AMONG THE LEGISLATIVE DISTRICTS.  AS FOR THE STATE, ALL IT
SUGGESTED IN EITHER THE LOWER COURT OR HERE IS THAT ITS PLAN COMES AS
CLOSE AS "PRACTICAL" TO COMPLETE POPULATION EQUALITY AND THAT THE STATE
WAS ATTEMPTING TO FOLLOW CONGRESSIONAL DISTRICT LINES.  THERE WAS,
HOWEVER, NO ATTEMPT TO JUSTIFY ANY PARTICULAR DEVIATIONS, EVEN THE
LARGER ONES, WITH RESPECT TO EITHER OF THESE CONSIDERATIONS.  MOREOVER,
THE STATE'S BRIEF STATES ONLY THAT THE LEGISLATURE FOLLOWED "IN MOST
INSTANCES" THE CONGRESSIONAL BOUNDARIES, AND WITH RESPECT TO
"PRACTICALITY" IT SEEMS QUITE OBVIOUS THAT THE STATE COULD HAVE COME
MUCH CLOSER TO PROVIDING DISTRICTS OF EQUAL POPULATION THAN IT DID. 
THE APPELLANTS THEMSELVES PLACED BEFORE THE COURT THEIR OWN PLAN WHICH
REVEALED MUCH SMALLER VARIATIONS BETWEEN THE DISTRICTS THAN DID THE
PLAN APPROVED BY THE DISTRICT COURT.  FURTHERMORE, APPELLANTS SUGGESTED
TO THE DISTRICT COURT SPECIFIC AMENDMENTS TO THE LEGISLATIVE PLAN
WHICH, IF THEY HAD BEEN ACCEPTED, WOULD HAVE MEASURABLY REDUCED THE
POPULATION DIFFERENCES BETWEEN MANY OF THE DISTRICTS.  APPELLANTS' OWN
PLAN AND THEIR SUGGESTED AMENDMENTS TO THE LEGISLATIVE PLAN MIGHT HAVE
BEEN INFIRM IN OTHER RESPECTS BUT THEY DO DEMONSTRATE THAT A CLOSER
APPROXIMATION TO EQUALLY POPULATED DISTRICTS WAS A FEASIBLE
UNDERTAKING.  THE STATE, WITH ADMIRABLE CANDOR, STATES THAT IT OFFERED
NO EVIDENCE IN THE DISTRICT COURT TO EXPLAIN THE CHALLENGED VARIATIONS
WITH RESPECT TO EITHER THE HOUSE OR THE SENATE.  IN ITS VIEW, HOWEVER,
THE PLAN SHOULD BE APPROVED ON THE RECORD AS IT IS. 

WE THINK THE BETTER VIEW IS THAT TAKEN BY THE THREE-JUDGE COURT IN
MARYLAND WHICH DISAPPROVED A LEGISLATIVE PLAN INVOLVING AN
OVERREPRESENTATION OF 14.90% AND AN UNDERREPRESENTATION OF 14.38%
BECAUSE, AS JUDGE SOBELOFF SAID, THERE WAS "NO SHOWING IN THIS CASE
THAT THE DIFFERENCE OF ONE-THIRD IS UNAVOIDABLE OR JUSTIFIED UPON ANY
LEGALLY ACCEPTABLE GROUND."  MARYLAND CITIZENS COMMITTEE FOR FAIR
CONGRESSIONAL REDISTRICTING, INC. V. TAWES, 253 F. SUPP. 731, 733. 
COMPARE LEAGUE OF NEBRASKA MUNICIPALITIES V. MARSH, 242 F. SUPP. 357,
DISAPPROVING A RATIO OF 1.6 TO 1 BETWEEN THE SMALLEST AND THE LARGEST
DISTRICT ABSENT SATISFACTORY EXPLANATION BY THE STATE, AND PAULSON V.
MEIER, 246 F. SUPP. 36, WHICH FOUND A RATIO BETWEEN THE SMALLEST AND
LARGEST DISTRICT OF 1.39 TO 1 TO BE UNJUSTIFIED ON THE BASIS OFFERED BY
THE STATE. 

THE APPELLANTS COMPLAIN OF OTHER ASPECTS OF THE PLAN BESIDES
UNEQUALLY POPULATED LEGISLATIVE DISTRICTS.  UNDER THE NEW STATUTE THREE
SENATORS WERE NOT REQUIRED TO RUN FOR ELECTION IN 1966 BUT WERE ALLOWED
TO FINISH THEIR PRESENT TERMS EXPIRING IN 1968.  THESE THREE SENATORS,
AS THE DISTRICT COURT NOTED, WERE ELECTED IN DISTRICTS THAT ARE
IDENTICAL IN TERRITORY TO THEIR DISTRICTS UNDER THE LEGISLATIVE PLAN. 
ALSO, ONE SENATE AND SIX HOUSE SEATS WERE SUBJECT TO RESIDENCY
REQUIREMENTS.  THE DISTRICT COURT FOUND NO INVIDIOUS DISCRIMINATION IN
THESE ASPECTS OF THE PLAN.  APPELLANTS ALSO CLAIM THAT THE LEGISLATIVE
PLAN DISCRIMINATES INVIDIOUSLY BY UNDERREPRESENTING THE POPULOUS URBAN
COUNTIES AND BY OVERREPRESENTING THE SPARSELY SETTLED RURAL COUNTIES IN
BOTH HOUSES.  THE COURT BELOW FOUND THAT "WHAT DEVIATION THERE IS DOES
NOT DISCRIMINATE TO ANY GREAT EXTENT AGAINST ANY SECTION OF THE STATE
OR AGAINST EITHER RURAL OR URBAN INTERESTS."  258 F. SUPP. 819, 827. 
IN THE LIGHT OF OUR DISPOSITION OF THIS CASE, HOWEVER, WE NEED NOT
REACH AND DECIDE ANY OF THESE ADDITIONAL ISSUES, ALTHOUGH WE NOTE THAT
REYNOLDS V. SIMS INDICATES THE CONSTITUTIONAL IMPROPRIETY OF
MAINTAINING DEVIATIONS FROM THE EQUAL POPULATION PRINCIPLE IN DEFERENCE
TO AREA AND ECONOMIC OR OTHER GROUP INTERESTS.  377 U.S. 533, 579-580. 
REVERSED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

REYNOLDS V. SIMS, 377 U.S. 533, LAID DOWN A "ONE MAN, ONE VOTE"
MANDATE FOR THE STRUCTURING OF ALL STATE LEGISLATURES, BUT THE COURT
THERE RECOGNIZED, AS IT DOES AGAIN TODAY, THAT "MATHEMATICAL EXACTNESS
...  IS NOT REQUIRED," ANTE, AT 443, AND THAT VARIATIONS ARE ACCEPTABLE
IF THEY "ARE BASED ON LEGITIMATE CONSIDERATIONS INCIDENT TO THE
EFFECTUATION OF A RATIONAL STATE POLICY  ...  ."  377 U.S., AT 579,
CITED, ANTE, AT 444.  THE COURT REFUSES, HOWEVER, TO ACCEPT FLORIDA'S
PRESENT LEGISLATIVE APPORTIONMENT PLAN, AT LEAST ON THE RECORD BEFORE
US, BECAUSE NEITHER THE STATE NOR THE DISTRICT COURT JUSTIFIED THE
RELATIVELY MINOR VARIATIONS IN POPULATION AMONG SOME OF THE DISTRICTS. 

THIS HOLDING SEEMS TO ME TO STAND ON ITS HEAD THE USUAL RULE
GOVERNING THIS COURT'S APPROACH TO THE VALIDITY OF LEGISLATIVE
ENACTMENTS, STATE AS WELL AS FEDERAL, WHICH IS, OF COURSE, THAT THEY
COME TO US WITH A STRONG PRESUMPTION OF REGULARITY AND
CONSTITUTIONALITY.  SEE, E. G., BUTLER V. PENNSYLVANIA, 10 HOW.  402;
DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249; FLEMMING V. NESTOR, 363
U.S. 603.  ACCORDINGLY, I DO NOT BELIEVE THE BURDEN IS ON THE STATE TO
JUSTIFY EVERY ASPECT OF A COMPLEX PLAN COMPLETELY RESTRUCTURING ITS
LEGISLATURE, ON PAIN OF ITS BEING DECLARED CONSTITUTIONALLY INVALID BY
THE JUDICIARY.  I CAN THINK OF NO OTHER AREA OF LAW IN WHICH THERE IS
AN ANALOGOUS PRESUMPTION OF INVALIDITY ATTACHING TO A LEGISLATIVE
ENACTMENT OF A STATE IN AN AREA OF ITS ADMITTED COMPETENCE AND SUPERIOR
EXPERIENCE.  THE BURDEN OF SHOWING UNCONSTITUTIONALITY SHOULD BE LEFT
HERE, AS IN OTHER CASES, ON THE ATTACKING PARTY. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT ON THE GROUNDS (1)
THAT THE PLAN ENACTED BY THE FLORIDA LEGISLATURE IS IN SUBSTANTIAL
COMPLIANCE WITH THE RULE OF REYNOLDS V. SIMS, SUPRA, AND (2) THAT THE
APPELLANTS HAVE NOT SHOWN ANY INVIDIOUS PURPOSE FOR, OR EFFECT FLOWING
FROM, THE MATHEMATICAL VARIATIONS AMONG CERTAIN DISTRICTS. 
..END :









IN RE MEEKER 385 U.S. 449 


NO. 704.  DECIDED JANUARY 9, 1967.  - 76 N.M. 354, 414 P.2D 862, APPEAL
DISMISSED AND CERTIORARI DENIED. 


IN RE MEEKER. 

APPEAL FROM THE SUPREME COURT OF NEW MEXICO. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED
FOR WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















GARCIA V. MORALES 385 U.S. 449 


NO. 735.  DECIDED JANUARY 9, 1967.  - 47 N.J. 269, 220 A.2D 198, APPEAL
DISMISSED. 


GARCIA ET AL. V. MORALES. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















KIRKPATRICK V. PREISLER 385 U.S. 450 


NO. 738.  DECIDED JANUARY 9, 1967.  - 257 F. SUPP. 953, AFFIRMED. 


KIRKPATRICK, SECRETARY OF STATE OF MISSOURI, ET AL. V. PREISLER ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 
..END :














NAVE V. SEATTLE 385 U.S. 450 


NO. 767.  DECIDED JANUARY 9, 1967.  - 68 WASH. 2D 72, 415 P.2D 93,
APPEAL DISMISSED. 


NAVE V. CITY OF SEATTLE. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















GLOUNER V. COUNTY OF LOS ANGELES 385 U.S. 451 


NO. 756.  DECIDED JANUARY 9, 1967.  - APPEAL DISMISSED. 


GLOUNER ET AL. V. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS
ANGELES. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BOGART V. TRAYNOR 385 U.S. 451 


NO. 767, MISC.  DECIDED JANUARY 9, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


BOGART V. TRAYNOR, CHIEF JUSTICE OF CALIFORNIA, ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED.  THE REQUEST
FOR OTHER RELIEF IS ALSO DENIED. 
..END :















WEBSTER V. LEE COUNTY 385 U.S. 452 


NO. 31, MISC.  DECIDED JANUARY 9, 1967.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


WEBSTER V. LEE COUNTY DISTRICT COURT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT
OF IOWA FOR FURTHER CONSIDERATION IN LIGHT OF LONG V. DISTRICT COURT OF
IOWA IN AND FOR LEE COUNTY, ANTE, P. 192. 
..END :













HUNTER V. NEW YORK 385 U.S. 452 


NO. 917, MISC.  DECIDED JANUARY 9, 1967.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HUNTER V. NEW YORK. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















ROOSEVELT RACEWAY V. NASSAU COUNTY 385 U.S. 453 


NO. 732.  DECIDED JANUARY 9, 1967.  - 18 N.Y.2D 30, 218 N.E.2D 539,
APPEAL DISMISSED. 


ROOSEVELT RACEWAY, INC. V. COUNTY OF NASSAU ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE STEWART IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














NEHRING V. DEKALB 385 U.S. 453 


NO. 758.  DECIDED JANUARY 9, 1967.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


NEHRING V. CITY OF DEKALB ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















FEDERATED DEPT. STORES V. GEROSA 385 U.S. 454 


NO. 171.  DECIDED JANUARY 9, 1967.  - 16 N.Y.2D 320, 213 N.E.2D 677; 17
N.Y.2D 579, 215 N.E.2D 516, APPEAL DISMISSED. 


FEDERATED DEPARTMENT STORES, INC. V. GEROSA, COMPTROLLER OF THE CITY OF
NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













DUDDLESTON V. GRILLS 385 U.S. 455 


NO. 370.  DECIDED JANUARY 9, 1967.  - 255 F. SUPP. 155, VACATED AND
REMANDED. 


DUDDLESTON ET AL. V. GRILLS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF INDIANA. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER CONSIDERATION IN LIGHT OF SWANN V. ADAMS, ANTE, P.
440, WESBERRY V. SANDERS, 376 U.S. 1, AND REYNOLDS V. SIMS, 377 U.S.
533. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
THE JUDGMENT SHOULD BE AFFIRMED. 
..END :











DROSTE V. KERNER 385 U.S. 456 


NO. 671.  DECIDED JANUARY 9, 1967.  - 34 ILL. 2D 495, 217 N.E.2D 73,
APPEAL DISMISSED AND CERTIORARI DENIED. 


DROSTE V. KERNER, GOVERNOR OF ILLINOIS, ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ILLINOIS CENTRAL R. CO. V. UNITED STATES 385 U.S. 457 


NO. 687.  DECIDED JANUARY 9, 1967.* - 263 F. SUPP. 421, AFFIRMED. 

*TOGETHER WITH NO. 688, ST. LOUIS SOUTHWESTERN RAILWAY CO. V. UNITED
STATES ET AL., AND NO. 689, MONON RAILROAD V. UNITED STATES ET AL.,
ALSO ON APPEAL FROM THE SAME COURT. 


ILLINOIS CENTRAL RAILROAD CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :











LEWIS V. UNITED STATES 385 U.S. 206 


NO. 36.  ARGUED OCTOBER 17, 1966.  - DECIDED DECEMBER 12, 1966.  - 352
F.2D 799, AFFIRMED. 


AN UNDERCOVER FEDERAL NARCOTICS AGENT, BY MISREPRESENTING HIS IDENTITY
ON THE TELEPHONE, WAS TWICE INVITED TO THE HOME OF PETITIONER FOR THE
PURPOSE OF EXECUTING UNLAWFUL NARCOTICS TRANSACTIONS.  PETITIONER WAS
THEREAFTER INDICTED AND CONVICTED UNDER 26 U.S.C. SEC. 4742(A). 
REJECTING PETITIONER'S MOTION TO SUPPRESS THE PURCHASED NARCOTICS AS
ILLEGALLY SEIZED WITHOUT A WARRANT, THE TRIAL COURT FOUND PETITIONER
GUILTY AND THE COURT OF APPEALS AFFIRMED.  HELD:  THE FACTS OF THIS
CASE PRESENT NO VIOLATION OF THE FOURTH AMENDMENT.  PP. 208-212. 

(A)  THE GOVERNMENT'S USE OF DECOYS AND UNDERCOVER AGENTS IS NOT PER
SE UNLAWFUL.  PP. 208-209. 

(B)  THE PETITIONER INVITED THE AGENT TO HIS HOME FOR THE VERY
PURPOSE OF ILLEGALLY SELLING HIM NARCOTICS.  GOULED V. UNITED STATES,
255 U.S. 298 (1921), DISTINGUISHED.  PP. 209-210. 

(C)  WHEN THE HOME IS OPENED AS A PLACE OF ILLEGAL BUSINESS TO WHICH
OUTSIDERS ARE INVITED FOR COMMERCIAL PURPOSES, THE FOURTH AMENDMENT IS
NOT VIOLATED WHEN A GOVERNMENT AGENT ENTERS PURSUANT TO AN INVITATION
AND THEN NEITHER SEES, HEARS NOR TAKES ANYTHING EITHER UNRELATED TO THE
BUSINESS PURPOSE OF HIS VISIT OR NOT CONTEMPLATED BY THE OCCUPANT.  P.
211. 

LEWIS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR RESOLUTION HERE IS WHETHER THE FOURTH AMENDMENT WAS
VIOLATED WHEN A FEDERAL NARCOTICS AGENT, BY MISREPRESENTING HIS
IDENTITY AND STATING HIS WILLINGNESS TO PURCHASE NARCOTICS, WAS INVITED
INTO PETITIONER'S HOME WHERE AN UNLAWFUL NARCOTICS TRANSACTION WAS
CONSUMMATED AND THE NARCOTICS WERE THEREAFTER INTRODUCED AT
PETITIONER'S CRIMINAL TRIAL OVER HIS OBJECTION.  WE HOLD THAT UNDER THE
FACTS OF THIS CASE IT WAS NOT.  THOSE FACTS ARE NOT DISPUTED AND MAY BE
BRIEFLY STATED AS FOLLOWS: 

ON DECEMBER 3, 1964, EDWARD CASS, AN UNDERCOVER FEDERAL NARCOTICS
AGENT, TELEPHONED PETITIONER'S HOME TO INQUIRE ABOUT THE POSSIBILITY OF
PURCHASING MARIHUANA.  CASS, WHO PREVIOUSLY HAD NOT MET OR DEALT WITH
PETITIONER, FALSELY IDENTIFIED HIMSELF AS ONE "JIMMY THE POLLACK" AND
STATED THAT A MUTUAL FRIEND HAD TOLD HIM PETITIONER MIGHT BE ABLE TO
SUPPLY MARIHUANA.  IN RESPONSE, PETITIONER SAID, "YES.  I BELIEVE,
JIMMY, I CAN TAKE CARE OF YOU," AND THEN DIRECTED CASS TO HIS HOME
WHERE, IT WAS INDICATED, A SALE OF MARIHUANA WOULD OCCUR.  CASS DROVE
TO PETITIONER'S HOME, KNOCKED ON THE DOOR, IDENTIFIED HIMSELF AS "JIM,"
AND WAS ADMITTED.  AFTER DISCUSSING THE POSSIBILITY OF REGULAR FUTURE
DEALINGS AT A DISCOUNTED PRICE, PETITIONER LED CASS TO A PACKAGE
LOCATED ON THE FRONT PORCH OF HIS HOME.  CASS GAVE PETITIONER $50, TOOK
THE PACKAGE, AND LEFT THE PREMISES.  THE PACKAGE CONTAINED FIVE BAGS OF
MARIHUANA.  (FN1)  ON DECEMBER 17, 1964, A SIMILAR TRANSACTION TOOK
PLACE, BEGINNING WITH A PHONE CONVERSATION IN WHICH CASS IDENTIFIED
HIMSELF AS "JIMMY THE POLLACK" AND ENDING WITH AN INVITED VISIT BY CASS
TO PETITIONER'S HOME WHERE A SECOND SALE OF MARIHUANA OCCURRED.   ONCE
AGAIN, CASS PAID PETITIONER $50, BUT THIS TIME HE RECEIVED IN RETURN A
PACKAGE CONTAINING SIX BAGS OF MARIHUANA.  (FN2) 

PETITIONER WAS ARRESTED ON APRIL 27, 1965, AND CHARGED BY A TWO-COUNT
INDICTMENT WITH VIOLATIONS OF THE NARCOTICS LAWS RELATING TO TRANSFERS
OF MARIHUANA.  26 U.S.C. SEC. 4742(A).  A PRETRIAL MOTION TO SUPPRESS
AS EVIDENCE THE MARIHUANA AND THE CONVERSATIONS BETWEEN PETITIONER AND
THE AGENT WAS DENIED, AND THEY WERE INTRODUCED AT THE TRIAL.  THE
DISTRICT COURT, SITTING WITHOUT A JURY, CONVICTED PETITIONER ON BOTH
COUNTS AND IMPOSED CONCURRENT FIVE-YEAR PENITENTIARY SENTENCES.  THE
COURT OF APPEALS FOR THE FIRST CIRCUIT AFFIRMED, 352 F.2D 799, AND WE
GRANTED CERTIORARI, 382 U.S. 1024. 

PETITIONER DOES NOT ARGUE THAT HE WAS ENTRAPPED, AS HE COULD NOT ON
THE FACTS OF THIS CASE; (FN3)  NOR DOES HE CONTEND THAT A SEARCH OF HIS
HOME WAS MADE OR THAT ANYTHING OTHER THAN THE PURCHASED NARCOTICS WAS
TAKEN AWAY.  HIS ONLY CONTENTIONS ARE THAT, IN THE ABSENCE OF A
WARRANT, ANY OFFICIAL INTRUSION UPON THE PRIVACY OF A HOME CONSTITUTES
A FOURTH AMENDMENT VIOLATION AND THAT THE FACT THE SUSPECT INVITED THE
INTRUSION CANNOT BE HELD A WAIVER WHEN THE INVITATION WAS INDUCED BY
FRAUD AND DECEPTION. 

BOTH PETITIONER AND THE GOVERNMENT RECOGNIZE THE NECESSITY FOR SOME
UNDERCOVER POLICE ACTIVITY AND BOTH CONCEDE THAT THE PARTICULAR
CIRCUMSTANCES OF EACH CASE GOVERN THE ADMISSIBILITY OF EVIDENCE
OBTAINED BY STRATAGEM OR DECEPTION.  (FN4)  INDEED, IT HAS LONG BEEN
ACKNOWLEDGED BY THE DECISIONS OF THIS COURT, SEE GRIMM V. UNITED
STATES, 156 U.S. 604, 610 (1895), AND ANDREWS V. UNITED STATES, 162
U.S. 420, 423 (1896), (FN5) THAT, IN THE DETECTION OF MANY TYPES OF
CRIME, THE GOVERNMENT IS ENTITLED TO USE DECOYS AND TO CONCEAL THE
IDENTITY OF ITS AGENTS.  THE VARIOUS PROTECTIONS OF THE BILL OF RIGHTS,
OF COURSE, PROVIDE CHECKS UPON SUCH OFFICIAL DECEPTION FOR THE
PROTECTION OF THE INDIVIDUAL.  SEE, E.G., MASSIAH V. UNITED STATES, 377
U.S. 201 (1964); TRUPIANO V. UNITED STATES, 334 U.S. 699 (1948). 

PETITIONER ARGUES THAT THE GOVERNMENT OVERSTEPPED THE CONSTITUTIONAL
BOUNDS IN THIS CASE AND PLACES PRINCIPAL RELIANCE ON GOULED V. UNITED
STATES, 255 U.S. 298 (1921).  BUT A SHORT STATEMENT OF THAT CASE WILL
DEMONSTRATE HOW MISPLACED HIS RELIANCE IS.  THERE, A BUSINESS
ACQUAINTANCE OF THE PETITIONER, ACTING UNDER ORDERS OF FEDERAL
OFFICERS, OBTAINED ENTRY INTO THE PETITIONER'S OFFICE BY FALSELY
REPRESENTING THAT HE INTENDED ONLY TO PAY A SOCIAL VISIT.  IN THE
PETITIONER'S ABSENCE, HOWEVER, THE INTRUDER SECRETLY RANSACKED THE
OFFICE AND SEIZED CERTAIN PRIVATE PAPERS OF AN INCRIMINATING NATURE. 
THIS COURT HAD NO DIFFICULTY CONCLUDING THAT THE FOURTH AMENDMENT HAD
BEEN VIOLATED BY THE SECRET AND GENERAL RANSACKING, NOTWITHSTANDING
THAT THE INITIAL INTRUSION WAS OCCASIONED BY A FRAUDULENTLY OBTAINED
INVITATION RATHER THAN BY FORCE OR STEALTH. 

IN THE INSTANT CASE, ON THE OTHER HAND, THE PETITIONER INVITED THE
UNDERCOVER AGENT TO HIS HOME FOR THE SPECIFIC PURPOSE OF EXECUTING A
FELONIOUS SALE OF NARCOTICS.  PETITIONER'S ONLY CONCERN WAS WHETHER THE
AGENT WAS A WILLING PURCHASER WHO COULD PAY THE AGREED PRICE.  INDEED,
IN ORDER TO CONVINCE THE AGENT THAT HIS PATRONAGE AT PETITIONER'S HOME
WAS DESIRED, PETITIONER TOLD HIM THAT, IF HE BECAME A REGULAR CUSTOMER
THERE, HE WOULD IN THE FUTURE RECEIVE AN EXTRA BAG OF MARIHUANA AT NO
ADDITIONAL COST; AND IN FACT PETITIONER DID HAND OVER AN EXTRA BAG AT A
SECOND SALE WHICH WAS CONSUMMATED AT THE SAME PLACE AND IN PRECISELY
THE SAME MANNER.  DURING NEITHER OF HIS VISITS TO PETITIONER'S HOME DID
THE AGENT SEE, HEAR, OR TAKE ANYTHING THAT WAS NOT CONTEMPLATED, AND IN
FACT INTENDED, BY PETITIONER AS A NECESSARY PART OF HIS ILLEGAL
BUSINESS.  WERE WE TO HOLD THE DECEPTIONS OF THE AGENT IN THIS CASE
CONSTITUTIONALLY PROHIBITED, WE WOULD COME NEAR TO A RULE THAT THE USE
OF UNDERCOVER AGENTS IN ANY MANNER IS VIRTUALLY UNCONSTITUTIONAL PER
SE.  SUCH A RULE WOULD, FOR EXAMPLE, SEVERELY HAMPER THE GOVERNMENT IN
FERRETING OUT THOSE ORGANIZED CRIMINAL ACTIVITIES THAT ARE
CHARACTERIZED BY COVERT DEALINGS WITH VICTIMS WHO EITHER CANNOT OR DO
NOT PROTEST.  (FN6)  A PRIME EXAMPLE IS PROVIDED BY THE NARCOTICS
TRAFFIC. 

THE FACT THAT THE UNDERCOVER AGENT ENTERED PETITIONER'S HOME DOES NOT
COMPEL A DIFFERENT CONCLUSION.  WITHOUT QUESTION, THE HOME IS ACCORDED
THE FULL RANGE OF FOURTH AMENDMENT PROTECTIONS.  SEE AMOS V. UNITED
STATES, 255 U.S. 313 (1921); HARRIS V. UNITED STATES, 331 U.S. 145,
151, N. 15 (1947).  BUT WHEN, AS HERE, THE HOME IS CONVERTED INTO A
COMMERCIAL CENTER TO WHICH OUTSIDERS ARE INVITED FOR PURPOSES OF
TRANSACTING UNLAWFUL BUSINESS, THAT BUSINESS IS ENTITLED TO NO GREATER
SANCTITY THAN IF IT WERE CARRIED ON IN A STORE, A GARAGE, A CAR, OR ON
THE STREET.  A GOVERNMENT AGENT, IN THE SAME MANNER AS A PRIVATE
PERSON, MAY ACCEPT AN INVITATION TO DO BUSINESS AND MAY ENTER UPON THE
PREMISES FOR THE VERY PURPOSES CONTEMPLATED BY THE OCCUPANT.  OF
COURSE, THIS DOES NOT MEAN THAT, WHENEVER ENTRY IS OBTAINED BY
INVITATION AND THE LOCUS IS CHARACTERIZED AS A PLACE OF BUSINESS, AN
AGENT IS AUTHORIZED TO CONDUCT A GENERAL SEARCH FOR INCRIMINATING
MATERIALS; A CITATION TO THE GOULED CASE, SUPRA, IS SUFFICIENT TO
DISPOSE OF THAT CONTENTION. 

FINALLY, PETITIONER ALSO RELIES ON RIOS V. UNITED STATES, 364 U.S.
253 (1960); JONES V. UNITED STATES, 362 U.S. 257 (1960); MCDONALD V.
UNITED STATES, 335 U.S. 451 (1948); AND JOHNSON V. UNITED STATES, 333
U.S. 10 (1948).  BUT THOSE CASES ALL DEALT WITH THE EXCLUSION OF
EVIDENCE THAT HAD BEEN FORCIBLY SEIZED AGAINST THE SUSPECTS' DESIRES
AND WITHOUT THE AUTHORIZATION CONFERRED BY SEARCH WARRANTS.  A READING
OF THEM WILL READILY DEMONSTRATE THAT THEY ARE INAPPOSITE TO THE FACTS
OF THIS CASE; AND, IN THIS AREA, EACH CASE MUST BE JUDGED ON ITS OWN
PARTICULAR FACTS.  NOR IS SILVERMAN V. UNITED STATES, 365 U.S. 505
(1961), IN POINT; FOR THERE, THE CONDUCT PROSCRIBED WAS THAT OF
EAVESDROPPERS, UNKNOWN AND UNWANTED INTRUDERS WHO FURTIVELY LISTENED TO
CONVERSATIONS OCCURRING IN THE PRIVACY OF A HOUSE.  THE INSTANT CASE
INVOLVES NO SUCH PROBLEM; IT HAS BEEN WELL SUMMARIZED BY THE GOVERNMENT
AT THE CONCLUSION OF ITS BRIEF AS FOLLOWS: 

"IN SHORT, THIS CASE INVOLVES THE EXERCISE OF NO GOVERNMENTAL POWER
TO INTRUDE UPON PROTECTED PREMISES; THE VISITOR WAS INVITED AND
WILLINGLY ADMITTED BY THE SUSPECT.  IT CONCERNS NO DESIGN ON THE PART
OF A GOVERNMENT AGENT TO OBSERVE OR HEAR WHAT WAS HAPPENING IN THE
PRIVACY OF A HOME; THE SUSPECT CHOSE THE LOCATION WHERE THE TRANSACTION
TOOK PLACE.  IT PRESENTS NO QUESTION OF THE INVASION OF THE PRIVACY OF
A DWELLING; THE ONLY STATEMENTS REPEATED WERE THOSE THAT WERE WILLINGLY
MADE TO THE AGENT AND THE ONLY THINGS TAKEN WERE THE PACKETS OF
MARIHUANA VOLUNTARILY TRANSFERRED TO HIM.  THE PRETENSE RESULTED IN NO
BREACH OF PRIVACY; IT MERELY ENCOURAGED THE SUSPECT TO SAY THINGS WHICH
HE WAS WILLING AND ANXIOUS TO SAY TO ANYONE WHO WOULD BE INTERESTED IN
PURCHASING MARIHUANA." 

FURTHER ELABORATION IS NOT NECESSARY.  THE JUDGMENT IS AFFIRMED. 

FN1  IN THE ILLEGAL NARCOTICS TRADE, AN AVERAGE "BAG" OF MARIHUANA
CONTAINS APPROXIMATELY FIVE GRAMS OF MARIHUANA.  THE FIVE BAGS
TRANSFERRED TO THE AGENT BY PETITIONER, HOWEVER, CONTAINED A QUANTITY
OF MARIHUANA MEASURING 31.16 GRAMS. 

FN2  THE SIX BAGS TRANSFERRED IN THIS SECOND TRANSACTION CONTAINED
40.34 GRAMS OF MARIHUANA. 

FN3  COMPARE SHERMAN V. UNITED STATES, 356 U.S. 369 (1958), AND
SORRELLS V. UNITED STATES, 287 U.S. 435 (1932).  SEE GENERALLY MIKELL,
THE DOCTRINE OF ENTRAPMENT IN THE FEDERAL COURTS, 90 U. PA. L. REV. 245
(1942). 

FN4  IN ORAL ARGUMENT BEFORE THIS COURT, COUNSEL FOR PETITIONER
CONCEDED THAT INFORMATION OBTAINED BY THE AGENT IN THE COURSE OF HIS
GENERAL UNDERCOVER INVESTIGATION, TOGETHER WITH THE SUBJECT MATTER OF
THE FIRST TELEPHONE CONVERSATION BETWEEN THE AGENT AND PETITIONER,
PROVIDED PROBABLE CAUSE FOR BELIEVING THAT A NARCOTICS OFFENSE WOULD BE
COMMITTED IN PETITIONER'S HOME AND, THEREFORE, WOULD HAVE SUPPORTED THE
ISSUANCE OF A SEARCH WARRANT.  ACCORDING TO COUNSEL, THE AGENT'S
MISREPRESENTATIONS WOULD NOT HAVE VITIATED A MAGISTRATE'S DETERMINATION
OF PROBABLE CAUSE.  COUNSEL FURTHER SUGGESTED THAT, IF THE AGENT HAD
ARRESTED PETITIONER AT THE LATTER'S HOME AND THEN HAD CONDUCTED A
SEARCH INCIDENTAL TO THE ARREST, NO CONSTITUTIONAL PROBLEMS WOULD BE
PRESENTED. 

FN5  FORMER CHIEF JUSTICE HUGHES COMMENTED AS FOLLOWS UPON THE USE OF
OFFICIAL DECEPTION IN COMBATING CRIMINAL ACTIVITY: 

"ARTIFICE AND STRATAGEM MAY BE EMPLOYED TO CATCH THOSE ENGAGED IN
CRIMINAL ENTERPRISES  ...  . THE APPROPRIATE OBJECT OF THIS PERMITTED
ACTIVITY, FREQUENTLY ESSENTIAL TO THE ENFORCEMENT OF THE LAW, IS TO
REVEAL THE CRIMINAL DESIGN; TO EXPOSE THE ILLICIT TRAFFIC, THE
PROHIBITED PUBLICATION, THE FRAUDULENT USE OF THE MAILS, THE ILLEGAL
CONSPIRACY, OR OTHER OFFENSES, AND THUS TO DISCLOSE THE WOULD-BE
VIOLATORS OF THE LAW."  SORRELLS V. UNITED STATES, 287 U.S. 435, 441
442 (1932). 

FN6  "PARTICULARLY, IN THE ENFORCEMENT OF VICE, LIQUOR OR NARCOTICS
LAWS, IT IS ALL BUT IMPOSSIBLE TO OBTAIN EVIDENCE FOR PROSECUTION SAVE
BY THE USE OF DECOYS.  THERE ARE RARELY COMPLAINING WITNESSES.  THE
PARTICIPANTS IN THE CRIME ENJOY THEMSELVES.  MISREPRESENTATION BY A
POLICE OFFICER OR AGENT CONCERNING THE IDENTITY OF THE PURCHASER OF
ILLEGAL NARCOTICS IS A PRACTICAL NECESSITY  ...  .  THEREFORE, THE LAW
MUST ATTEMPT TO DISTINGUISH BETWEEN THOSE DECEITS AND PERSUASIONS WHICH
ARE PERMISSIBLE AND THOSE WHICH ARE NOT."  MODEL PENAL CODE SEC 2.10,
COMMENT, P. 16 (TENT.  DRAFT NO. 9, 1959). 

SEE ALSO DONNELLY, JUDICIAL CONTROL OF INFORMANTS, SPIES, STOOL
PIGEONS AND AGENT PROVOCATEURS, 60 YALE L.J. 1091, 1094 (1951); NOTE,
73 HARV. L. REV. 1333, 1338-1339 (1960). 

(FOR OPINION OF DOUGLAS, J., DISSENTING, SEE POST, P. 340.) 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE FORTAS JOINS, CONCURRING. 

WHILE I CONCUR IN THE COURT'S JUDGMENT, I VOTE TO AFFIRM SOLELY ON
THE REASONING ON WHICH THE COURT ULTIMATELY RELIES, NAMELY THAT
PETITIONER'S APARTMENT WAS NOT AN AREA PROTECTED BY THE FOURTH
AMENDMENT AS RELATED TO THE TRANSACTIONS IN THE PRESENT CASE. 

THE FOURTH AMENDMENT PROTECTS AGAINST GOVERNMENTAL INTRUSION UPON
"THE SANCTITY OF A MAN'S HOME AND THE PRIVACIES OF LIFE."  BOYD V.
UNITED STATES, 116 U.S. 616, 630.  HOWEVER, THE OCCUPANT CAN BREAK THE
SEAL OF SANCTITY AND WAIVE HIS RIGHT TO PRIVACY IN THE PREMISES. 
PLAINLY HE DOES THIS TO THE EXTENT THAT HE OPENS HIS HOME TO THE
TRANSACTION OF BUSINESS AND INVITES ANYONE WILLING TO ENTER TO COME IN
TO TRADE WITH HIM.  WHEN HIS CUSTOMER TURNS OUT TO BE A GOVERNMENT
AGENT, THE SELLER CANNOT, THEN, COMPLAIN THAT HIS PRIVACY HAS BEEN
INVADED SO LONG AS THE AGENT DOES NO MORE THAN BUY HIS WARES.  THUS THE
CORNER GROCERY WITH THE LIVING QUARTERS IN THE REAR WOULD NOT BE
PROTECTED WITH RESPECT TO THE AREA SET ASIDE FOR THE PURCHASE OF
GROCERIES, ALTHOUGH THE LIVING QUARTERS TO WHICH SHOPPERS ARE NOT PRIVY
RETAIN THE CONSTITUTIONAL IMMUNITY.  CF. WONG SUN V. UNITED STATES, 371
U.S. 471. 

THE PETITIONER IN THIS CASE OPENED HIS APARTMENT FOR THE CONDUCT OF A
BUSINESS, THE SALE OF NARCOTICS; THE AGENT, IN THE SAME MANNER AS ANY
PRIVATE PERSON, ENTERED THE PREMISES FOR THE VERY PURPOSE CONTEMPLATED
BY THE OCCUPANT AND TOOK NOTHING AWAY EXCEPT WHAT WOULD BE TAKEN AWAY
BY ANY WILLING PURCHASER.  THERE WAS THEREFORE NO INTRUSION UPON THE
"SANCTITY" OF PETITIONER'S HOME OR THE "PRIVACIES OF LIFE." 
..END :











IMMIGRATION SERVICE V. ERRICO 385 U.S. 214 


NO. 54.  ARGUED OCTOBER 20, 1966.  - DECIDED DECEMBER 12, 1966.* - NO.
54, 349 F.2D 541, AFFIRMED; NO. 91, 350 F.2D 279, REVERSED. 

*TOGETHER WITH NO. 91, SCOTT, AKA PLUMMER V. IMMIGRATION AND
NATURALIZATION SERVICE, ON CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 


FROM DEPORTATION AN ALIEN WHO OBTAINED A VISA AND ENTRY TO THE UNITED
STATES BY FRAUD AND MISREPRESENTATION WHERE THE ALIEN IS THE SPOUSE,
PARENT OR CHILD OF AN AMERICAN CITIZEN OR OF AN ALIEN LAWFULLY ADMITTED
FOR PERMANENT RESIDENCE, AND WAS "OTHERWISE ADMISSIBLE AT THE TIME OF
ENTRY," IS CONSTRUED, IN THE LIGHT OF ITS HUMANITARIAN PURPOSE OF
PREVENTING THE BREAKING UP OF FAMILIES, TO SAVE FROM DEPORTATION SUCH
ALIENS WHO MISREPRESENTED THEIR STATUS FOR THE PURPOSE OF EVADING QUOTA
RESTRICTIONS.  PP. 217-225. 

IMMIGRATION AND NATURALIZATION SERVICE V. ERRICO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THESE CASES TO RESOLVE A CONFLICT BETWEEN
THE SECOND AND NINTH CIRCUITS ON THEIR INTERPRETATIONS OF SEC 241(F) OF
THE IMMIGRATION AND NATIONALITY ACT.  (FN1)  THE ISSUE IS IDENTICAL IN
BOTH CASES AND, THEREFORE, LENDS ITSELF TO A SINGLE OPINION. 


"THE PROVISIONS OF THIS SECTION RELATING TO THE DEPORTATION OF ALIENS
WITHIN THE UNITED STATES ON THE GROUND THAT THEY WERE EXCLUDABLE AT THE
TIME OF ENTRY AS ALIENS WHO HAVE SOUGHT TO PROCURE, OR HAVE PROCURED
VISAS OR OTHER DOCUMENTATION, OR ENTRY INTO THE UNITED STATES BY FRAUD
OR MISREPRESENTATION SHALL NOT APPLY TO AN ALIEN OTHERWISE ADMISSIBLE
AT THE TIME OF ENTRY WHO IS THE SPOUSE, PARENT, OR A CHILD OF A UNITED
STATES CITIZEN OR OF AN ALIEN LAWFULLY ADMITTED FOR PERMANENT
RESIDENCE." 

THE ISSUE IS WHETHER THE STATUTE SAVES FROM DEPORTATION AN ALIEN WHO
MISREPRESENTS HIS STATUS FOR THE PURPOSE OF EVADING QUOTA RESTRICTIONS,
IF HE HAS THE NECESSARY FAMILIAL RELATIONSHIP TO A UNITED STATES
CITIZEN OR LAWFUL PERMANENT RESIDENT. 

RESPONDENT ERRICO IN NO. 54, A NATIVE OF ITALY, FALSELY REPRESENTED
TO THE IMMIGRATION AUTHORITES THAT HE WAS A SKILLED MECHANIC WITH
SPECIALIZED EXPERIENCE IN REPAIRING FOREIGN AUTOMOBILES.  ON THE BASIS
OF THAT MISREPRESENTATION HE WAS GRANTED FIRST PREFERENCE QUOTA STATUS
UNDER THE STATUTORY PREFERENCE SCHEME THEN IN EFFECT, AND ENTERED THE
UNITED STATES IN 1959 WITH HIS WIFE.  A CHILD WAS BORN TO THE COUPLE IN
1960 AND ACQUIRED UNITED STATES CITIZENSHIP AT BIRTH.  IN 1963
DEPORTATION PROCEEDINGS WERE COMMENCED AGAINST ERRICO ON THE GROUND
THAT HE WAS EXCLUDABLE AT THE TIME OF ENTRY AS NOT "OF THE PROPER
STATUS UNDER THE QUOTA SPECIFIED IN THE IMMIGRANT VISA."  (FN2)
THROUGHOUT THE PROCEEDINGS ERRICO INSISTED THAT HE WAS SAVED FROM
DEPORTATION BY SEC 241(F).  THE SPECIAL INQUIRY OFFICER OF THE
IMMIGRATION AND NATURALIZATION SERVICE RULED THAT RELIEF UNDER SEC
241(F) WAS NOT AVAILABLE BECAUSE ERRICO HAD NOT COMPLIED WITH QUOTA
REQUIREMENTS AND, HENCE, WAS NOT "OTHERWISE ADMISSIBLE AT THE TIME OF
ENTRY."  THE BOARD OF IMMIGRATION APPEALS AFFIRMED THE DEPORTATION
ORDER BUT THE COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED, HOLDING
THAT THE CONSTRUCTION OF THE STATUTE ADOPTED BY THE BOARD WOULD STRIP
IT OF PRACTICALLY ALL MEANING, SINCE A MATERIAL MISREPRESENTATION WOULD
PRESUMABLY BE GIVEN TO CONCEAL SOME FACTOR THAT WOULD BEAR ON
ADMISSIBILITY.   349 F.2D 541.  WE GRANTED CERTIORARI.  383 U.S. 941. 

PETITIONER SCOTT IN NO. 91, A NATIVE OF JAMAICA, CONTRACTED A
MARRIAGE WITH A UNITED STATES CITIZEN BY PROXY SOLELY FOR THE PURPOSE
OF OBTAINING NONQUOTA STATUS FOR ENTRY INTO THE COUNTRY.  SHE HAS NEVER
LIVED WITH HER HUSBAND AND NEVER INTENDED TO DO SO.  AFTER ENTERING THE
UNITED STATES IN 1958, SHE GAVE BIRTH TO AN ILLEGITIMATE CHILD, WHO
BECAME AN AMERICAN CITIZEN AT BIRTH.  WHEN THE FRAUD WAS DISCOVERED,
DEPORTATION PROCEEDINGS WERE BEGUN, AND A SPECIAL INQUIRY OFFICER OF
THE IMMIGRATION AND NATURALIZATION SERVICE FOUND HER DEPORTABLE ON THE
GROUND THAT SHE WAS NOT A NONQUOTA IMMIGRANT AS SPECIFIED IN HER VISA. 
(FN3)  THE BOARD OF IMMIGRATION APPEALS AFFIRMED, AND THE COURT OF
APPEALS FOR THE SECOND CIRCUIT AFFIRMED THE BOARD.  350 F.2D 279.  THE
COURT AGREED WITH THE BOARD OF IMMIGRATION APPEALS THAT A SHAM MARRIAGE
CONTRACTED SOLELY TO CIRCUMVENT THE IMMIGRATION LAWS WOULD NOT CONFER
NONQUOTA STATUS ON AN ALIEN AS THE SPOUSE OF AN AMERICAN CITIZEN.  IT
ALSO AFFIRMED THE RULING THAT MRS. SCOTT WAS NOT ENTITLED TO RELIEF
UNDER SEC 241(F) BECAUSE SHE WAS NOT OTHERWISE ADMISSIBLE AT THE TIME
OF ENTRY, SINCE HER COUNTRY'S QUOTA WAS OVERSUBSCRIBED.  WE GRANTED
CERTIORARI.  383 U.S. 941. 

AT THE OUTSET IT SHOULD BE NOTED THAT EVEN THE GOVERNMENT AGREES THAT
SEC 241(F) CANNOT BE APPLIED WITH STRICT LITERALNESS.  LITERALLY, SEC
241(F) APPLIES ONLY WHEN THE ALIEN IS CHARGED WITH ENTERING IN
VIOLATION OF SEC 212(A)(19) OF THE STATUTE, WHICH EXCLUDES FROM ENTRY
"ANY ALIEN WHO  ...  HAS PROCURED A VISA OR OTHER DOCUMENTATION  ...
BY FRAUD, OR BY WILLFULLY MISREPRESENTING A MATERIAL FACT."  (FN4)
UNDER THIS INTERPRETATION, AN ALIEN WHO ENTERED BY FRAUD COULD BE
DEPORTED FOR HAVING ENTERED WITH A DEFECTIVE VISA OR FOR OTHER
DOCUMENTARY IRREGULARITIES EVEN IF HE WOULD HAVE BEEN ADMISSIBLE IF HE
HAD NOT COMMITTED THE FRAUD.  THE GOVERNMENT CONCEDES THAT SUCH AN
INTERPRETATION WOULD BE INCONSISTENT WITH THE MANIFEST PURPOSE OF THE
SEC 241(F) WAIVES ANY DEPORTATION CHARGE THAT RESULTS DIRECTLY FROM THE
MISREPRESENTATION REGARDLESS OF THE SECTION OF THE STATUTE UNDER WHICH
THE CHARGE WAS BROUGHT, PROVIDED THAT THE ALIEN WAS "OTHERWISE
ADMISSIBLE AT THE TIME OF ENTRY."  (FN5)  THE GOVERNMENT'S ARGUMENT IN
BOTH CASES IS THAT TO BE OTHERWISE ADMISSIBLE AT THE TIME OF ENTRY THE
ALIEN MUST SHOW THAT HE WOULD HAVE BEEN ADMITTED EVEN IF HE HAD NOT
LIED, AND THAT THE ALIENS IN THESE CASES WOULD NOT HAVE BEEN ADMITTED
BECAUSE OF THE QUOTA RESTRICTIONS.  IT IS THE ARGUMENT OF THE ALIENS
THAT OUR ADOPTION OF THE GOVERNMENT THESIS WOULD NEGATE THE INTENTION
OF CONGRESS TO APPLY FAIR HUMANITARIAN STANDARDS IN GRANTING RELIEF
FROM THE CONSEQUENCES OF THEIR FRAUD TO ALIENS WHO ARE CLOSE RELATIVES
OF UNITED STATES CITIZENS, AND THAT THE STATUTE WOULD HAVE PRACTICALLY
NO EFFECT IF CONSTRUED AS THE GOVERNMENT ARGUES, SINCE IT REQUIRES A
CONSIDERABLE STRETCH OF THE IMAGINATION TO CONCEIVE OF AN ALIEN MAKING
A MATERIAL MISREPRESENTATION THAT DID NOT CONCEAL SOME FACTOR THAT
WOULD MAKE HIM INADMISSIBLE. 

THE SHARP DIVERGENCE OF OPINION AMONG THE CIRCUIT JUDGES IN THESE
CASES INDICATES THAT THE MEANING OF THE WORDS "OTHERWISE ADMISSIBLE" IS
NOT OBVIOUS.  AN INTERPRETATION OF THESE WORDS REQUIRES CLOSE ATTENTION
TO THE LANGUAGE OF SEC 241(F), TO THE LANGUAGE OF ITS PREDECESSOR, SEC
7 OF THE 1957 ACT, (FN6)  AND TO THE LEGISLATIVE HISTORY OF THESE
PROVISIONS. 

THE LEGISLATIVE HISTORY BEGINS WITH THE ENACTMENT OF THE DISPLACED
PERSONS ACT OF 1948, 62 STAT. 1009.  THIS ACT PROVIDED FOR THE
ADMISSION TO THE UNITED STATES OF THOUSANDS OF WAR REFUGEES, MANY FROM
COUNTRIES THAT HAD FALLEN BEHIND THE IRON CURTAIN.  SOME OF THESE
REFUGEES MISREPRESENTED THEIR NATIONALITY OR HOMELAND WHILE IN EUROPE
TO AVOID BEING REPATRIATED TO A COMMUNIST COUNTRY.  IN SO DOING,
HOWEVER, THEY FELL AFOUL OF SEC 10 OF THE ACT, WHICH PROVIDED THAT
PERSONS MAKING WILLFUL MISREPRESENTATIONS FOR THE PURPOSE OF GAINING
ADMISSION "SHALL THEREAFTER NOT BE ADMISSIBLE INTO THE UNITED STATES." 
THE PLIGHT OF THESE REFUGEES, WHO WERE EXCLUDED FROM THE UNITED STATES
FOR MISREPRESENTATIONS THAT WERE GENERALLY FELT TO BE JUSTIFIABLE,
INSPIRED RECURRING PROPOSALS FOR STATUTORY REFORM.  WHEN THE ACT WAS
REVISED AND CODIFIED IN 1952, THE HOUSE COMMITTEE RECOMMENDED ADDING A
PROVISION TO SAVE SUCH REFUGEES FROM DEPORTATION WHEN THEY HAD
MISREPRESENTED THEIR NATIONALITY OR HOMELAND ONLY TO AVOID REPATRIATION
AND PERSECUTION.  (FN7)  THE CONFERENCE COMMITTEE DELETED THE
PROVISION, BUT ANNOUNCED ITS SYMPATHY WITH THE REFUGEES IN THE
FOLLOWING TERMS: 

"IT IS ALSO THE OPINION OF THE CONFEREES THAT THE SECTIONS OF THE
BILL WHICH PROVIDE FOR THE EXCLUSION OF ALIENS WHO OBTAINED TRAVEL
DOCUMENTS BY FRAUD OR BY WILLFULLY MISREPRESENTING A MATERIAL FACT,
SHOULD NOT SERVE TO EXCLUDE OR TO DEPORT CERTAIN BONA FIDE REFUGEES WHO
IN FEAR OF BEING FORCIBLY REPATRIATED TO THEIR FORMER HOMELANDS
MISREPRESENTED THEIR PLACE OF BIRTH WHEN APPLYING FOR A VISA AND SUCH
MISREPRESENTATION DID NOT HAVE AS ITS BASIS THE DESIRE TO EVADE THE
QUOTA PROVISIONS OF THE LAW OR AN INVESTIGATION IN THE PLACE OF THEIR
FORMER RESIDENCE.  THE CONFEREES WISH TO EMPHASIZE THAT IN APPLYING
FAIR HUMANITARIAN STANDARDS IN THE ADMINISTRATIVE ADJUDICATION OF SUCH
CASES, EVERY EFFORT IS TO BE MADE TO PREVENT THE EVASION OF LAW BY
FRAUD AND TO PROTECT THE INTEREST OF THE UNITED STATES."  H.R. REP. NO.
2096, 82D CONG., 2D SESS., P. 128 (1952). 

THE IMMIGRATION AND NATURALIZATION SERVICE AND THE ATTORNEY GENERAL
DID NOT CONSTRUE THE STATUTE AS THE CONFERENCE COMMITTEE HAD
RECOMMENDED, BELIEVING THAT THE EXPLICIT STATUTORY LANGUAGE DID NOT
ALLOW FOR AN EXEMPTION FOR JUSTIFIABLE MISREPRESENTATIONS.  REFUGEES
WHO MISREPRESENTED THEIR PLACE OF ORIGIN WERE ALWAYS FOUND TO HAVE
CONCEALED A MATERIAL FACT, SINCE THE MISREPRESENTATION HINDERED AN
INVESTIGATION OF THEIR BACKGROUND.  (FN8) 

THE MISREPRESENTATION SECTION WAS NOT THE ONLY PROVISION OF THE 1952
LEGISLATION THAT WAS WIDELY THOUGHT TO BE UNNECESSARILY HARSH AND
RESTRICTIVE, AND IN 1957 CONGRESS PASSED LEGISLATION ALLEVIATING IN
MANY RESPECTS THE STRICTER PROVISIONS OF THE EARLIER LEGISLATION.  THE
PURPOSE OF THE 1957 ACT IS PERFECTLY CLEAR FROM ITS TERMS, AS WELL AS
FROM THE RELEVANT HOUSE AND SENATE COMMITTEE REPORTS.  (FN9)  THE MOST
IMPORTANT PROVISIONS OF THE ACT PROVIDE FOR SPECIAL NONQUOTA STATUS FOR
THE ADOPTED CHILDREN OR ILLEGITIMATE CHILDREN OF IMMIGRANT PARENTS, AND
FOR ORPHANS WHO HAVE BEEN OR ARE TO BE ADOPTED BY UNITED STATES
CITIZENS.  OTHER IMPORTANT PROVISIONS ALLOW THE ATTORNEY GENERAL TO
WAIVE CERTAIN GROUNDS FOR EXCLUSION OR DEPORTATION, INCLUDING
AFFLICTION WITH TUBERCULOSIS OR CONVICTION OF A CRIME INVOLVING MORAL
TURPITUDE, ON BEHALF OF ALIENS WHO ARE NEAR RELATIVES OF UNITED STATES
CITIZENS OR OF ALIENS LAWFULLY ADMITTED FOR PERMANENT RESIDENCE.  THE
INTENT OF THE ACT IS PLAINLY TO GRANT EXCEPTIONS TO THE RIGOROUS
PROVISIONS OF THE 1952 ACT FOR THE PURPOSE OF KEEPING FAMILY UNITS
TOGETHER.  CONGRESS FELT THAT, IN MANY CIRCUMSTANCES, IT WAS MORE
IMPORTANT TO UNITE FAMILIES AND PRESERVE FAMILY TIES THAN IT WAS TO
ENFORCE STRICTLY THE QUOTA LIMITATIONS OR EVEN THE MANY RESTRICTIVE
THE COUNTRY.  (FN10) 

IN THIS CONTEXT IT IS NOT SURPRISING THAT CONGRESS ALSO GRANTED
RELIEF TO ALIENS FACING EXCLUSION OR DEPORTATION BECAUSE THEY HAD
GAINED ENTRY THROUGH MISREPRESENTATION.  SECTION 7 OF THE 1957 ACT
PROVIDED THAT: 

"THE PROVISIONS OF SECTION 241 OF THE IMMIGRATION AND NATIONALITY ACT
RELATING TO THE DEPORTATION OF ALIENS WITHIN THE UNITED STATES ON THE
GROUND THAT THEY WERE EXCLUDABLE AT THE TIME OF ENTRY AS (1) ALIENS WHO
HAVE SOUGHT TO PROCURE, OR HAVE PROCURED VISAS OR OTHER DOCUMENTATION,
OR ENTRY INTO THE UNITED STATES BY FRAUD OR MISREPRESENTATION, OR (2)
ALIENS WHO WERE NOT OF THE NATIONALITY SPECIFIED IN THEIR VISAS, SHALL
NOT APPLY TO AN ALIEN OTHERWISE ADMISSIBLE AT THE TIME OF ENTRY WHO (A)
IS THE SPOUSE, PARENT, OR A CHILD OF A UNITED STATES CITIZEN OR OF AN
ALIEN LAWFULLY ADMITTED FOR PERMANENT RESIDENCE; OR (B) WAS ADMITTED TO
THE UNITED STATES BETWEEN DECEMBER 22, 1945, AND NOVEMBER 1, 1954, BOTH
DATES INCLUSIVE, AND MISREPRESENTED HIS NATIONALITY, PLACE OF BIRTH,
IDENTITY, OR RESIDENCE IN APPLYING FOR A VISA:  PROVIDED, THAT SUCH
ALIEN DESCRIBED IN CLAUSE (B) SHALL ESTABLISH TO THE SATISFACTION OF
THE ATTORNEY GENERAL THAT THE MISREPRESENTATION WAS PREDICATED UPON THE
ALIEN'S FEAR OF PERSECUTION BECAUSE OF RACE, RELIGION, OR POLITICAL
OPINION IF REPATRIATED TO HIS FORMER HOME OR RESIDENCE, AND WAS NOT
COMMITTED FOR THE PURPOSE OF EVADING THE QUOTA RESTRICTIONS OF THE
IMMIGRATION LAWS OR AN INVESTIGATION OF THE ALIEN AT THE PLACE OF HIS
FORMER HOME, OR RESIDENCE, OR ELSEWHERE.  AFTER THE EFFECTIVE DATE OF
THIS ACT, ANY ALIEN WHO IS THE SPOUSE, PARENT, OR CHILD OF A UNITED
STATES CITIZEN OR OF AN ALIEN LAWFULLY ADMITTED FOR PERMANENT RESIDENCE
AND WHO IS EXCLUDABLE BECAUSE (1) HE SEEKS, HAS SOUGHT TO PROCURE, OR
HAS PROCURED, A VISA OR OTHER DOCUMENTATION, OR ENTRY INTO THE UNITED
STATES, BY FRAUD OR MISREPRESENTATION, OR (2) HE ADMITS THE COMMISSION
OF PERJURY IN CONNECTION THEREWITH, SHALL HEREAFTER BE GRANTED A VISA
AND ADMITTED TO THE UNITED STATES FOR PERMANENT RESIDENCE, IF OTHERWISE
ADMISSIBLE, IF THE ATTORNEY GENERAL IN HIS DISCRETION HAS CONSENTED TO
THE ALIEN'S APPLYING OR REAPPLYING FOR A VISA AND FOR ADMISSION TO THE
UNITED STATES." 

THIS SECTION WAIVED DEPORTATION UNDER CERTAIN CIRCUMSTANCES FOR TWO
CLASSES OF ALIENS WHO HAD ENTERED BY FRAUD OR MISREPRESENTATION. 
FIRST, AN ALIEN WHO WAS "THE SPOUSE, PARENT, OR A CHILD OF A UNITED
STATES CITIZEN  ...  " WAS SAVED FROM DEPORTATION FOR HIS FRAUD IF HE
WAS "OTHERWISE ADMISSIBLE AT THE TIME OF ENTRY."  SECOND, AN ALIEN WHO
ENTERED DURING THE POSTWAR PERIOD AND MISREPRESENTED HIS NATIONALITY,
PLACE OF BIRTH, IDENTITY, OR RESIDENCE WAS SAVED FROM DEPORTATION IF HE
WAS "OTHERWISE ADMISSIBLE AT THE TIME OF ENTRY" AND IF HE COULD: 

"ESTABLISH TO THE SATISFACTION OF THE ATTORNEY GENERAL THAT THE
MISREPRESENTATION WAS PREDICATED UPON THE ALIEN'S FEAR OF PERSECUTION
BECAUSE OF RACE, RELIGION, OR POLITICAL OPINION IF REPATRIATED TO HIS
FORMER HOME OR RESIDENCE, AND WAS NOT COMMITTED FOR THE PURPOSE OF
EVADING THE QUOTA RESTRICTIONS OF THE IMMIGRATION LAWS OR AN
INVESTIGATION OF THE ALIEN AT THE PLACE OF HIS FORMER HOME, OR
RESIDENCE, OR ELSEWHERE."    THIS LANGUAGE WOULD BE MEANINGLESS IF AN
ALIEN WHO COMMITTED FRAUD FOR THE PURPOSE OF EVADING QUOTA RESTRICTIONS
WOULD BE DEPORTABLE AS NOT "OTHERWISE ADMISSIBLE AT THE TIME OF
ENTRY."  CONGRESS MUST HAVE FELT THAT ALIENS WHO EVADED QUOTA
RESTRICTIONS BY FRAUD WOULD BE "OTHERWISE ADMISSIBLE AT THE TIME OF
ENTRY" OR IT WOULD NOT HAVE FOUND IT NECESSARY TO PROVIDE FURTHER THAT,
IN THE CASE OF AN ALIEN NOT POSSESSING A CLOSE FAMILIAL RELATIOSHIP TO
A UNITED STATES CITIZEN OR LAWFUL PERMANENT RESIDENT, THE FRAUD MUST
NOT BE FOR THE PURPOSE OF EVADING QUOTA RESTRICTIONS. 

THIS CONCLUSION IS REINFORCED BY THE FACT THAT CONGRESS FURTHER
SPECIFIED THAT THE ALIENS WHO WERE NOT CLOSE RELATIVES OF UNITED STATES
CITIZENS MUST ESTABLISH THAT THEIR FRAUD WAS NOT COMMITTED FOR THE
PURPOSE OF EVADING AN INVESTIGATION.  FRAUD FOR THE PURPOSE OF EVADING
AN INVESTIGATION, IF FORGIVEN BY THE STATUTE, WOULD CLEARLY LEAVE THE
ALIEN "OTHERWISE ADMISSIBLE" IF THERE WERE NO OTHER DISQUALIFYING
FACTOR.  ELEMENTARY PRINCIPLES OF STATUTORY CONSTRUCTION LEAD TO THE
CONCLUSION THAT CONGRESS MEANT TO SPECIFY TWO SPECIFIC TYPES OF FRAUD
THAT WOULD LEAVE AN ALIEN "OTHERWISE ADMISSIBLE" BUT THAT WOULD
NONETHELESS BAR RELIEF TO THOSE ALIENS WHO COULD NOT CLAIM CLOSE
RELATIONSHIP WITH A UNITED STATES CITIZEN OR ALIEN LAWFULLY ADMITTED
FOR PERMANENT RESIDENCE. 

THE PRESENT SEC 241(F) IS ESSENTIALLY A RE-ENACTMENT OF SEC 7 OF THE
1957 ACT.  THE LEGISLATIVE HISTORY LEAVES NO DOUBT THAT NO SUBSTANTIVE
CHANGE IN THE SECTION WAS INTENDED.  (FN11)  THE PROVISION DEALING WITH
ALIENS WHO HAD ENTERED THE UNITED STATES BETWEEN 1945 AND 1954, AND HAD
MISREPRESENTED THEIR NATIONALITY FOR FEAR OF PERSECUTION OR
REPATRIATION, WAS OMITTED BECAUSE IT HAD ACCOMPLISHED ITS PURPOSE; THE
REST OF THE SECTION WAS RETAINED INTACT.  (FN12)  IT COULD HARDLY BE
ARGUED THAT CONGRESS INTENDED TO CHANGE THE CONSTRUCTION OF THE STATUTE
BY THIS CODIFICATION. 

THE INTENT OF SEC 7 OF THE 1957 ACT NOT TO REQUIRE THAT ALIENS WHO
ARE CLOSE RELATIVES OF UNITED STATES CITIZENS HAVE COMPLIED WITH QUOTA
RESTRICTIONS TO ESCAPE DEPORTATION FOR THEIR FRAUD IS CLEAR FROM ITS
LANGUAGE, AND THERE IS NOTHING IN THE LEGISLATIVE HISTORY TO SUGGEST
THAT CONGRESS HAD IN MIND A CONTRARY RESULT.  THE ONLY SPECIFIC
REFERENCE TO THE PART OF SEC 7 THAT DEALS WITH CLOSE RELATIVES OF
UNITED STATES CITIZENS OR RESIDENTS IS IN THE HOUSE COMMITTEE REPORT,
AND IT SAYS ONLY THAT MOST OF THE PERSONS ELIGIBLE FOR RELIEF WOULD
BE: 

"MEXICAN NATIONALS, WHO, DURING THE TIME WHEN BORDER-CONTROL
OPERATIONS SUFFERED FROM REGRETTABLE LAXITY, WERE ABLE TO ENTER THE
UNITED STATES, ESTABLISH A FAMILY IN THIS COUNTRY, AND WERE
SUBSEQUENTLY FOUND TO RESIDE IN THE UNITED STATES ILLEGALLY."  H.R.
REP.  NO. 1199, 85TH CONG., 1ST SESS., P. 11. 

WITHOUT DOUBT MOST OF THE ALIENS WHO HAD OBTAINED ENTRY INTO THE
UNITED STATES BY ILLEGAL MEANS WERE MEXICANS, BECAUSE IT HAS ALWAYS
BEEN FAR EASIER TO AVOID BORDER RESTRICTIONS WHEN ENTERING FROM MEXICO
THAN WHEN ENTERING FROM COUNTRIES THAT DO NOT HAVE A COMMON LAND BORDER
WITH THE UNITED STATES.  THERE IS NOTHING IN THE COMMITTEE REPORT TO
INDICATE THAT RELIEF UNDER THE SECTION WAS INTENDED TO BE RESTRICTED TO
MEXICANS, HOWEVER.  NEITHER DOES IT FOLLOW THAT, BECAUSE MEXICANS ARE
NOT SUBJECT TO QUOTA RESTRICTIONS, THEREFORE NATIONALS OF COUNTRIES
THAT DO HAVE A QUOTA MUST BE WITHIN THE QUOTA TO OBTAIN RELIEF. 

THE CONSTRUCTION OF THE STATUTE THAT WE ADOPT IN THESE CASES IS
FURTHER REINFORCED WHEN THE SECTION IS REGARDED IN THE CONTEXT OF THE
1957 ACT.  THE FUNDAMENTAL PURPOSE OF THIS LEGISLATION WAS TO UNITE
FAMILIES.  REFUGEES FROM COMMUNIST LANDS WERE ALSO BENEFITED, BUT THE
ACT PRINCIPALLY GRANTED RELIEF TO PERSONS WHO WOULD BE TEMPORARILY OR
PERMANENTLY SEPARATED FROM THEIR NEAREST RELATIVES IF THE STRICT
REQUIREMENTS OF THE IMMIGRATION AND NATIONALITY ACT, INCLUDING THE
NATIONAL QUOTAS, WERE NOT RELAXED FOR THEM.  IT WAS WHOLLY CONSISTENT
WITH THIS PURPOSE FOR CONGRESS TO PROVIDE THAT IMMIGRANTS WHO GAINED
ADMISSION BY MISREPRESENTATION, PERHAPS MANY YEARS AGO, SHOULD NOT BE
DEPORTED BECAUSE THEIR COUNTRIES' QUOTAS WERE OVERSUBSCRIBED WHEN THEY
ENTERED IF THE EFFECT OF DEPORTATION WOULD BE TO SEPARATE FAMILIES
COMPOSED IN PART OF AMERICAN CITIZENS OR LAWFUL PERMANENT RESIDENTS. 

EVEN IF THERE WERE SOME DOUBT AS TO THE CORRECT CONSTRUCTION OF THE
STATUTE, THE DOUBT SHOULD BE RESOLVED IN FAVOR OF THE ALIEN.  AS THIS
COURT HAS HELD, EVEN WHERE A PUNITIVE SECTION IS BEING CONSTRUED: 

"WE RESOLVE THE DOUBTS IN FAVOR OF THAT CONSTRUCTION BECAUSE
DEPORTATION IS A DRASTIC MEASURE AND AT TIMES THE EQUIVALENT OF
BANISHMENT OR EXILE, DELGADILLO V. CARMICHAEL, 332 U.S. 388.  IT IS THE
FORFEITURE FOR MISCONDUCT OF A RESIDENCE IN THIS COUNTRY.  SUCH A
FORFEITURE IS A PENALTY.  TO CONSTRUE THIS STATUTORY PROVISION LESS
GENEROUSLY TO THE ALIEN MIGHT FIND SUPPORT IN LOGIC.  BUT SINCE THE
STAKES ARE CONSIDERABLE FOR THE INDIVIDUAL, WE WILL NOT ASSUME THAT
CONGRESS MEANT TO TRENCH ON HIS FREEDOM BEYOND THAT WHICH IS REQUIRED
BY THE NARROWEST OF SEVERAL POSSIBLE MEANINGS OF THE WORDS USED."  FONG
HAW TAN V. PHELAN, 333 U.S. 6, 10. 

SEE ALSO BARBER V. GONZALES, 347 U.S. 637, 642-643.  THE 1957 ACT WAS
NOT A PUNITIVE STATUTE, AND SEC 7 OF THAT ACT, NOW CODIFIED AS SEC
241(F), IN PARTICULAR WAS DESIGNED TO ACCOMPLISH A HUMANITARIAN
RESULT.  WE CONCLUDE THAT TO GIVE MEANING TO THE STATUTE IN THE LIGHT
OF ITS HUMANITARIAN PURPOSE OF PREVENTING THE BREAKING UP OF FAMILIES
COMPOSED IN PART AT LEAST OF AMERICAN CITIZENS, THE CONFLICT BETWEEN
THE CIRCUITS MUST BE RESOLVED IN FAVOR OF THE ALIENS, AND THAT THE
ERRICO DECISION MUST BE AFFIRMED AND THE SCOTT DECISION REVERSED.  IT
IS SO ORDERED. 

FN1  75 STAT. 655 (1961), 8 U.S.C. SEC 1251(F) 

FN2  SECTION 211(A)(4) OF THE IMMIGRATION AND NATIONALITY ACT, 66
STAT. 181 (1952), LATER AMENDED, 79 STAT. 917 (1965), 8 U.S.C. SEC
1181(A) (1964 ED., SUPP. I).  ALIENS WHO WERE EXCLUDABLE AT THE TIME OF
ENTRY UNDER THE LAW THEN EXISTING ARE DEPORTABLE UNDER SEC 241(A)(1),
66 STAT. 204 (1952), AS AMENDED, 8 U.S.C. SEC 1251(A)(1). 

FN3  SECTION 211(A)(3), 66 STAT. 181 (1952), LATER AMENDED, 79 STAT.
917 (1965), 8 U.S.C. SEC 1181(A) (1964 ED., SUPP. I). 

FN4  66 STAT. 183 (1952), AS AMENDED, 8 U.S.C. SEC 1182(A)(19). 

FN5  SEE MATTER OF S - , 7 I.&N. DEC. 715 (1958); MATTER OF Y - , 8
I.&N. DEC. 143 (1959). 

FN6  PUB. L. 85-316, 71 STAT. 639 (1957). 

FN7  SEE H.R. REP. NO. 1365, 82D CONG., 2D SESS., P. 128 (1952). 

FN8  SEE MATTER OF B - AND P - , 2 I.&N. DEC. 638 (1947); H.R. REP.
NO. 1199, 85TH CONG., 1ST SESS., P. 10 (1957). 

FN9  "THE LEGISLATIVE HISTORY OF THE IMMIGRATION AND NATIONALITY ACT
CLEARLY INDICATES THAT THE CONGRESS INTENDED TO PROVIDE FOR A LIBERAL
TREATMENT OF CHILDREN AND WAS CONCERNED WITH THE PROBLEM OF KEEPING
FAMILIES OF UNITED STATES CITIZENS AND IMMIGRANTS UNITED."  H.R. REP.
NO. 1199, 85TH CONG., 1ST SESS., P. 7(1957).  SEE ALSO S. REP. NO.
1057, 85TH CONG., 1ST SESS. (1957). 

FN10  IT IS IN THIS CONTEXT THAT THE LEGISLATIVE HISTORY CITED IN THE
DISSENT SHOULD BE UNDERSTOOD.  THE REMARKS OF SENATOR EASTLAND AND
CONGRESSMAN CELLER QUOTED IN FOOTNOTE 4 OF THE DISSENT IN CONTEXT DO
NOT REFER TO SEC 7 OF THE ACT BUT TO THE PROVISIONS OF THE BILL
PROVIDING FOR THE ADOPTION OF ALIEN ORPHANS.  FURTHERMORE, SENATOR
EASTLAND AND CONGRESSMAN CELLER DID NOT MEAN THAT NO EXCEPTIONS TO THE
QUOTA REQUIREMENTS WERE INTENDED TO BE CREATED, BECAUSE THE BASIC
PURPOSE OF THE BILL WAS TO RELAX THE QUOTA SYSTEM FOR ADOPTED CHILDREN
AND FOR CERTAIN OTHER CLASSES OF ALIENS DEEMED DESERVING OF RELIEF. 
THEY WERE REASSURING THEIR COLLEAGUES THAT NO FUNDAMENTAL CHANGES IN
THE QUOTA SYSTEM WERE CONTEMPLATED. 

FN11  H.R. REP. NO. 1086, 87TH CONG., 1ST SESS., P. 37 (1961).  SEE
ALSO 107 CONG. REC. 19653-19654 (1961)(REMARKS OF SENATOR EASTLAND). 

FN12  H.R. REP. NO. 1086, 87TH CONG., 1ST SESS., P. 37 (1961). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

THE FACTS IN ONE OF THESE CASES (NO. 91) VIVIDLY ILLUSTRATE THE
EFFECT OF THE COURT'S INTERPRETATION OF SEC 241(F) OF THE IMMIGRATION
AND NATIONALITY ACT.  THE PETITIONER, A RESIDENT OF JAMAICA, PAID FOR A
SHAM MARRIAGE WITH AN AMERICAN CITIZEN.  A CEREMONY WAS HELD, BUT THE
PETITIONER AND HER "HUSBAND" PARTED IMMEDIATLEY AND HAVE NOT SEEN EACH
OTHER SINCE.  HOWEVER, THE PRETENDED MARRIAGE SERVED ITS PURPOSE; THE
PETITIONER WAS ADMITTED INTO THIS COUNTRY AS A NONQUOTA IMMIGRANT UPON
HER FALSE REPRESENTATION THAT SHE WAS THE WIFE OF A UNITED STATES
CITIZEN.  AFTER THIS FRAUDULENT ENTRY SHE MANAGED TO BECOME THE ACTUAL
PARENT OF A UNITED STATES CITIZEN BY CONCEIVING AND BEARING AN
ILLEGITIMATE CHILD HERE. 

THE COURT HOLDS THAT THIS UNSAVORY SERIES OF EVENTS GIVES THE
PETITIONER AN UNQUALIFIED RIGHT UNDER SEC 241(F) TO REMAIN IN THIS
COUNTRY AHEAD OF ALL THE HONEST PEOPLE WAITING IN JAMAICA AND ELSEWHERE
TO GAIN LAWFUL ENTRY.  (FN1)  I CAN FIND NO SUPPORT IN THE STATUTE FOR
SUCH AN ODD AND INEQUITABLE RESULT. 


"THE PROVISIONS OF THIS SECTION RELATING TO THE DEPORTATION OF ALIENS
WITHIN THE UNITED STATES ON THE GROUND THAT THEY  WERE EXCLUDABLE AT
THE TIME OF ENTRY AS ALIENS WHO HAVE SOUGHT TO PROCURE, OR HAVE
PROCURED VISAS OR OTHER DOCUMENTATION, OR ENTRY INTO THE UNITED STATES
BY FRAUD OR MISREPRESENTATION SHALL NOT APPLY TO AN ALIEN OTHERWISE
ADMISSIBLE AT THE TIME OF ENTRY WHO IS THE SPOUSE, PARENT, OR A CHILD
OF A UNITED STATES CITIZEN OR OF AN ALIEN LAWFULLY ADMITTED FOR
PERMANENT RESIDENCE." 

IT SEEMS CLEAR TO ME, FOR TWO SEPARATE AND INDEPENDENTLY SUFFICIENT
REASONS, THAT THIS STATUTE DOES NOT OPERATE TO BAR THE DEPORTATION OF
THE ALIENS IN THE CASES NOW BEFORE US.  IN THE FIRST PLACE, SEC 241(F)
HAS APPLICATION ONLY TO THE DEPORTATION PROVISIONS WHICH ARE BASED UPON
FRAUDULENT ENTRY, AND THE ALIENS IN THESE TWO CASES WERE NOT ORDERED TO
BE DEPORTED UNDER THOSE PROVISIONS.  SECONDLY, EVEN IF IT WERE
GENERALLY APPLICABLE, SEC 241(F) DOES NOT COVER THE ALIENS INVOLVED IN
THESE TWO CASES, BECAUSE NEITHER OF THEM WAS "OTHERWISE ADMISSIBLE" AT
THE TIME OF ENTRY. 

                                         I. 

RELATING TO THE DEPORTATION OF ALIENS WITHIN THE UNITED STATES ON THE
GROUND THAT THEY  ...  SOUGHT TO PROCURE  ...  ENTRY INTO THE UNITED
STATES BY FRAUD OR MISREPRESENTATION  ...  ."  ALTHOUGH THE ALIENS IN
THESE TWO CASES COULD HAVE BEEN DEPORTED UNDER THOSE "PROVISIONS," THE
DEPORTATION PROCEEDINGS IN BOTH CASES WERE IN FACT BROUGHT ON GROUNDS
UNRELATED TO THEIR PROCUREMENT OF FRAUDULENT VISAS.  BOTH ALIENS WERE
ORDERED TO BE DEPORTED, NOT BECAUSE OF THEIR FRAUD, BUT BECAUSE THEY
WERE NOT PROPERLY WITHIN THEIR COUNTRIES' QUOTAS. 

THE PLAIN TERMS OF SEC 241(F), THEREFORE, DO NOT EVEN POTENTIALLY
APPLY TO THESE ALIENS.  (FN2) TO HOLD THAT SEC 241(F) IS RELEVANT TO
THESE CASES IS TANTAMOUNT TO HOLDING THAT IT IS APPLICABLE TO BAR
DEPORTATION BASED ON ANY GROUND AT ALL SO LONG AS THE ALIEN LIED ABOUT
THAT GROUND AT THE TIME OF HIS UNLAWFUL ENTRY.  (FN3)  I THINK NOTHING
COULD BE FURTHER FROM THE STATUTORY LANGUAGE OR THE CONGRESSIONAL
PURPOSE. 

                                         II. 

BUT EVEN IF SEC 241(F) WERE GENERALLY APPLICABLE, THESE ALIENS COULD
NOT CLAIM ITS BENEFITS BECAUSE THEY WERE NOT WITHIN THEIR RESPECTIVE
NATIONAL IMMIGRATION QUOTAS AND THEREFORE WERE NOT "OTHERWISE
ADMISSIBLE" AT THE TIME THEY ENTERED THE UNITED STATES.  THAT IS THE
CLEAR IMPORT OF THE STATUTORY QUALIFICATION, IF ITS WORDS ARE TO BE
TAKEN AT THEIR FACE VALUE.  THAT, TOO, HAS BEEN THE UNIFORM AND
CONSISTENT ADMINISTRATIVE CONSTRUCTION OF THE STATUTE.  SEE MATTER OF
D'O - , 8 I.&N. DEC. 215 (1958); MATTER OF SLADE, 10 I.&N.  DEC. 128
(1962). 

TO EXCEPT QUOTA REQUIREMENTS OF ADMISSIBILITY FROM THE STATUTORY
QUALIFICATION OF "OTHERWISE ADMISSIBLE" WOULD UNDERCUT THE ELABORATE
QUOTA SYSTEM WHICH WAS FOR YEARS AT THE HEART OF IMMIGRATION LAWS.  YET
THE LEGISLATIVE HISTORY OF THE PREDECESSOR OF SEC 241(F), SEC 7 OF THE
1957 ACT, MAKES CLEAR THAT THE LIMITED RELIEF GIVEN BY THE STATUTE WAS
TO HAVE NO EFFECT AT ALL ON THE QUOTA SYSTEM.  (FN4) 

MOREOVER, THE CONSISTENT USE OF THE SAME QUALIFYING PHRASE,
"OTHERWISE ADMISSIBLE" IN OTHER SECTIONS OF THE IMMIGRATION AND
NATIONALITY ACT MAKES CLEAR THAT, AS A TERM OF ART, IT INCLUDES QUOTA
ADMISSIBILITY.  THE TERM TYPICALLY FOLLOWS A DEFINITION OF GROUNDS FOR
ADMISSIBILITY OR FOR EXCEPTIONS TO DEPORTATION, TO INSURE THAT ALL THE
OTHER RELEVANT REQUIREMENTS OF THE ACT ARE IMPOSED UPON THE ALIEN. 
(FN5) 

THUS THE PLAIN MEANING OF THE "OTHERWISE ADMISSIBLE" QUALIFICATION,
AS WELL AS LEGISLATIVE POLICY AND LEGISLATIVE HISTORY, ALL INDICATE
THAT THE TERM SERVES THE SAME BASIC FUNCTION IN SEC 241(F) AS IN OTHER
THOSE WITH THE REQUISITE FAMILY TIES, AND "OTHERWISE ADMISSIBLE"
INSURES THE INTEGRITY OF THE REMAINDER OF THE STATUTORY SCHEME.  (FN6) 

THE COURT JUSTIFIES ITS DISREGARD OF THE PLAIN MEANING AND CONSISTENT
ADMINISTRATIVE CONSTRUCTION OF SEC 241(F) BY RESORT TO THE SPIRIT OF
HUMANITARIANISM WHICH IS SAID TO HAVE MOVED CONGRESS TO ENACT THE
STATUTE.  NO DOUBT CONGRESS IN 1957 WAS CONCERNED WITH GIVING RELIEF TO
SOME ALIENS WHO HAD ENTERED THIS COUNTRY BY ILLEGAL MEANS AND
ESTABLISHED FAMILIES HERE.  BUT THE PEOPLE WHO WERE TO BENEFIT FROM
THIS GENUINE HUMAN CONCERN WERE THOSE FROM COUNTRIES LIKE MEXICO, WHICH
HAD NO QUOTA RESTRICTIONS, AND THOSE WHO HAD MISREPRESENTED THEIR
NATIONAL ORIGINS IN ORDER TO AVOID REPATRIATION TO IRON CURTAIN
COUNTRIES.  THERE IS NOTHING TO INDICATE THAT CONGRESS ENACTED THIS
LEGISLATION TO ALLOW WHOLESALE EVASION OF THE IMMIGRATION AND
NATIONALITY ACT OR AS A GENERAL REWARD FOR FRAUD.  I RESPECTFULLY
DISSENT.    FN1  WHEN "MRS.  SCOTT" MADE HER FRAUDULENT ENTRY IN 1958,
JAMAICA HAD AN ANNUAL QUOTA OF 100 IMMIGRANTS AND A WAITING LIST OF
21,759 HOPEFUL APPLICANTS.  THE CORRESPONDING FIGURES FOR ITALY IN
1959, THE YEAR OF MR. ERRICO'S ENTRY, WERE 5,666 AND 162,612. 

FN2  THE COURT STATES THAT THE GOVERNMENT "CONCEDES" AND THAT
"ADMINISTRATIVE AUTHORITIES HAVE CONSISTENTLY HELD THAT SEC 241(F)
WAIVES ANY DEPORTATION CHARGE THAT RESULTS DIRECTLY FROM THE
MISREPRESENTATION."  ANTE, AT 217.  BUT THIS CONCESSION AND
ADMINISTRATIVE PRACTICE FALL FAR SHORT OF COVERING THESE CASES.  FOR
HERE THE GROUNDS FOR DEPORTATION DID NOT "RESULT DIRECTLY FROM THE
MISREPRESENTATION."  THEY ANTEDATED AND WERE THE REASON FOR THE
MISREPRESENTATION.  THE "ADMINISTRATIVE AUTHORITIES" CITED BY THE COURT
TURNED UPON THIS DISTINCTION.  IN MATTER OF Y - , 8 I.&N. DEC. 143
(1959), FOR EXAMPLE, THE BOARD OF IMMIGRATION APPEALS BROADENED SEC
241(F) ENOUGH TO COVER FRAUD-RELATED ADMINISTRATIVE PROCEDURAL DEFECTS
IN THE ALIEN'S ENTRY.  IT IS THIS CONSTRUCTION OF SEC 241(F) WHICH THE
GOVERNMENT CONCEDES, NOT THE COURT'S CONSTRUCTION WHICH BROADENS THE
STATUTE TO EXCUSE ALL DISQUALIFICATIONS FOR ENTRY. 

FN3  THUS, A COMMUNIST WHO HAD LIED TO THE IMMIGRATION AUTHORITIES
ABOUT HIS  PARTY MEMBERSHIP AT THE TIME OF ENTRY COULD INVOKE SEC
241(F) AND REMAIN IN THIS COUNTRY, WHILE ONE WHO HAD TOLD THE TRUTH,
BUT WAS ADMITTED BY VIRTUE OF AN ADMINISTRATIVE ERROR, COULD BE
DEPORTED.  SEE SEC 212(A)(28), IMMIGRATION AND NATIONALITY ACT. 

FN4  SENATOR EASTLAND, CHAIRMAN OF THE COMMITTEE WHICH SPONSORED THE
1957 AMENDMENTS TO THE IMMIGRATION ACT, STATED, "THE BILL DOES NOT
MODIFY THE NATIONAL ORIGINS QUOTA PROVISIONS."  103 CONG. REC. 15487
(AUG. 21, 1957).  SEE ALSO 103 CONG. REC. 16300 (AUG. 28, 1957). 
(REMARKS OF CONGRESSMAN CELLER), "THE BILL MAKES NO CHANGES - NO
CHANGES WHATSOEVER, IN THE CONTROVERSIAL ISSUE OF THE NATIONAL ORIGINS
QUOTA SYSTEM." 

PUB. L. 89-236, 79 STAT. 911, MADE SUBSTANTIAL CHANGES IN THE QUOTA
SYSTEM.  BUT THAT STATUTE, PASSED IN 1965, HARDLY INDICATES A
CONGRESSIONAL INTENT IN 1957 OR IN 1961 (WHEN THE PRESENT STATUTE WAS
REVISED) TO ABANDON QUOTA REQUIREMENTS. 

FN5  SEE, E.G., SECS 211(A) AND (B); THE WAR BRIDES ACT, 59 STAT.
659. 

FN6  UNDER SEC 7 OF THE 1957 ACT CERTAIN ALIENS HAD TO ESTABLISH BOTH
THAT THEY WERE "OTHERWISE ADMISSIBLE" AND THAT THEY HAD NOT LIED TO
EVADE QUOTA RESTRUCTIONS.  THE COURT REASONS FROM THIS THAT QUOTA
RESTRICTIONS ARE NOT EMBODIED IN THE "OTHERWISE ADMISSIBLE"
QUALIFICATION.  BUT THIS REASONING IS INCONSISTENT WITH THE COURT'S
CONCLUSION CONCERNING THE GENERAL APPLICABILITY OF SEC 241(F),
DISCUSSED IN PART I OF THIS DISSENT. 


"THE PROVISIONS OF SECTION 241 OF THE IMMIGRATION AND NATIONALITY ACT
RELATING TO THE DEPORTATION OF ALIENS WITHIN THE UNITED STATES ON THE
GROUND THAT THEY WERE EXCLUDABLE AT THE TIME OF ENTRY AS (1) ALIENS WHO
HAVE SOUGHT TO PROCURE, OR HAVE PROCURED VISAS OR OTHER DOCUMENTATION,
OR ENTRY INTO THE UNITED STATES BY FRAUD OR MISREPRESENTATION, OR (2)
ALIENS WHO WERE NOT OF THE NATIONALITY SPECIFIED IN THEIR VISAS, SHALL
NOT APPLY TO AN ALIEN OTHERWISE ADMISSIBLE AT THE TIME OF ENTRY WHO ...
." 

IF THE PRESENT MEANING OF "OTHERWISE ADMISSIBLE" IS TO BE DETERMINED
BY THE 1957 ACT, SO THEN MUST OTHER PARTS OF THE STATUTE BE SIMILARLY
DETERMINED.  SECTION 241(F) BEGINS WITH WORDS ALMOST IDENTICAL TO THOSE
QUOTED ABOVE.  BUT THE SECOND GROUND OF APPLICABILITY - TO "ALIENS WHO
WERE NOT OF THE NATIONALITY SPECIFIED IN THEIR VISAS" - IS OMITTED. 
THUS, LIES ABOUT NATIONALITY WERE NOT FORGIVEN BY THE FIRST PART OF THE
1957 ACT AND ARE NOT, BY THE COURT'S REASONING, EXCUSED BY SEC 241(F),
THE SUCCESSOR STATUTE.  AND SINCE THERE IS NOTHING TO DISTINGUISH LIES
ABOUT NATIONALITY THAT AVOID QUOTA RESTRICTIONS FROM OTHER LIES WITH
THE SAME EFFECT, THE REASONING THAT LEADS TO THE COURT'S CONCLUSION
THAT THE ALIENS  WERE "OTHERWISE ADMISSIBLE" LEADS ALSO TO THE
CONCLUSION THAT SEC 241(F) IS NOT APPLICABLE AT ALL IN THESE CASES. 
..END :
















FORTSON V. MORRIS 385 U.S. 231 


NO. 800.  ARGUED DECEMBER 5, 1966.  - DECIDED DECEMBER 12, 1966.  - 262
F. SUPP. 93, REVERSED. 


GEORGIA'S CONSTITUTION SINCE 1824 HAS PROVIDED THAT A MAJORITY OF THE
STATE LEGISLATURE SHALL SELECT THE GOVERNOR FROM THE TWO CANDIDATES
WITH THE HIGHEST NUMBER OF VOTES IN A GENERAL ELECTION WHERE NO
GUBERNATORIAL CANDIDATE RECEIVED A MAJORITY VOTE, A SITUATION WHICH
AROSE IN THE NOVEMBER 8, 1966, GENERAL ELECTION.  ON EQUAL PROTECTION
GROUNDS A THREE-JUDGE DISTRICT COURT INVALIDATED THE PROVISION.  HELD:
GEORGIA'S PROVISION FOR SELECTING A GOVERNOR IS NOT INVALID UNDER THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 233-236. 

(A)  A STATE CAN PERMIT ITS LEGISLATIVE BODY TO ELECT ITS GOVERNOR,
THERE BEING NO FEDERAL CONSTITUTIONAL PROVISION PRESCRIBING THE METHOD
A STATE MUST USE TO SELECT ITS GOVERNOR.  GRAY V. SANDERS, 372 U.S.
368, DISTINGUISHED.  PP. 233-234. 

(B)  THE GEORGIA LEGISLATURE IS NOT DISQUALIFIED FOR MALAPPORTIONMENT
TO ELECT A GOVERNOR, SINCE UNDER TOOMBS V. FORTSON, 384 U.S. 210, THIS
COURT HELD THAT IT COULD FUNCTION UNTIL MAY 1, 1968.  P. 235. 

(C)  THE OBLIGATION UNDER AN OATH TAKEN BY DEMOCRATIC MEMBERS OF THE
LEGISLATURE TO SUPPORT PARTY CANDIDATES ENDED WITH THE LAST GENERAL
ELECTION, WHICH IS OVER.  PP. 235-236. 

FORTSON, SECRETARY OF STATE OF GEORGIA V. MORRIS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

SINCE 1824 A PROVISION OF THE CONSTITUTION OF THE STATE OF GEORGIA,
NOW ART. V, SEC 1, PARA IV, HAS PROVIDED THAT ITS GOVERNOR SHALL BE
SELECTED (1) BY A MAJORITY OF VOTES CAST IN A GENERAL ELECTION, AND (2)
IF NO CANDIDATE RECEIVED A MAJORITY OF VOTES AT SUCH ELECTION, THEN A
MAJORITY OF THE MEMBERS OF THE GEORGIA GENERAL ASSEMBLY SHALL ELECT THE
GOVERNOR "FROM THE TWO PERSONS HAVING THE HIGHEST NUMBER OF VOTES  ...
."  (FN1)  AT THE STATE'S GENERAL ELECTION, HELD TUESDAY, NOVEMBER 8,
1966, NO SINGLE CANDIDATE RECEIVED A MAJORITY OF THE VOTES CAST.  A
GEORGIA THREE-JUDGE FEDERAL DISTRICT COURT HAS IN THIS CASE ENJOINED
THE STATE ASSEMBLY FROM ELECTING ONE OF THE TWO HIGHEST CANDIDATES AS
GOVERNOR ON THE GROUND THAT THIS METHOD OF ELECTION, REQUIRED BY
ARTICLE V OF THE GEORGIA CONSTITUTION, WOULD DENY GEORGIA VOTERS EQUAL
PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT.  WE
UPHOLD THE CONSTITUTIONALITY OF ARTICLE V OF THE STATE CONSTITUTION,
FOR SO LONG AS THIS PROVISION IS APPLIED AS IT IS WRITTEN, WE PERCEIVE
NO CONFLICT WITH THE EQUAL PROTECTION CLAUSE.  WE REVERSE THE DISTRICT
COURT'S JUDGMENT. 

THE DISTRICT COURT ERRONEOUSLY RELIED ON GRAY V. SANDERS, 372 U.S.
368, TO STRIKE DOWN ARTICLE V OF THE STATE'S CONSTITUTION.  THE GRAY
CASE HELD THAT IT HAD BEEN DEMONSTRATED THAT GEORGIA VOTERS WERE DENIED
EQUAL PROTECTION OF THE LAWS BY THE OPERATION OF A COUNTY-UNIT SYSTEM
UNDER WHICH STATE OFFICIALS WERE ELECTED BY A MAJORITY OF COUNTIES
VOTING AS UNITS INSTEAD OF BY A MAJORITY OF INDIVIDUAL VOTERS.  THE
RESULT WAS THAT THE NUMBER OF VOTES OF PERSONS LIVING IN LARGE COUNTIES
WAS GIVEN NO MORE WEIGHT IN ELECTING STATE OFFICERS THAN WAS GIVEN TO A
FAR FEWER NUMBER OF VOTES OF PERSONS RESIDING IN SMALL COUNTIES.  THIS
DISCRIMINATION AGAINST LARGE COUNTY VOTERS WAS HELD TO DENY THEM THE
EQUAL PROTECTION OF THE LAWS.  THAT CASE, AS WAS EMPHASIZED, HAD TO DO
WITH THE EQUAL RIGHT OF "ALL WHO PARTICIPATE IN THE ELECTION," 372
U.S., AT 379, TO VOTE AND HAVE THEIR VOTES COUNTED WITHOUT IMPAIRMENT
OR DILUTION.  BUT AS THE COURT SAID, 372 U.S., AT 378, THE CASE WAS
"ONLY A VOTING CASE."  NOT A WORD IN THE COURT'S OPINION INDICATED THAT
IT WAS INTENDED TO COMPEL A STATE TO ELECT ITS GOVERNORS OR ANY OTHER
STATE OFFICERS OR AGENTS THROUGH ELECTIONS OF THE PEOPLE RATHER THAN
THROUGH SELECTIONS BY APPOINTMENT OR ELECTIONS BY THE STATE ASSEMBLY. 
IT IS WRONGLY CITED AS HAVING EITHER EXPRESSLY OR IMPLIEDLY DECIDED
THAT A STATE CANNOT, IF IT WISHES, PERMIT ITS LEGISLATIVE BODY TO ELECT
ITS GOVERNOR. 

THE LANGUAGE OF ARTICLE V OF THE STATE CONSTITUTION STRUCK DOWN BY
THE DISTRICT COURT HAS BEEN A PART OF GEORGIA'S STATE CONSTITUTION
SINCE 1824 AND WAS READOPTED BY THE PEOPLE IN 1945.  IT SET UP TWO WAYS
TO SELECT THE GOVERNOR.  THE FIRST, AND PREFERRED ONE, WAS ELECTION BY
A MAJORITY OF THE PEOPLE; THE SECOND, AND ALTERNATIVE ONE, WAS ELECTION
BY THE STATE ASSEMBLY IF ANY ONE CANDIDATE FAILED TO RECEIVE A MAJORITY
OF THE POPULAR VOTE.  UNDER THE SECOND METHOD, IN THE LEGISLATIVE
ELECTION THE VOTES OF THE PEOPLE WERE NOT TO BE DISREGARDED BUT THE
STATE ASSEMBLY WAS TO CONSIDER THEM AS, IN EFFECT, NOMINATING VOTES AND
TO LIMIT ITSELF TO CHOOSING BETWEEN THE TWO PERSONS ON WHICH THE PEOPLE
HAD BESTOWED THE HIGHEST NUMBER OF VOTES.  THERE IS NO PROVISION OF THE
UNITED STATES CONSTITUTION OR ANY OF ITS AMENDMENTS WHICH EITHER
EXPRESSLY OR IMPLIEDLY DICTATES THE METHOD A STATE MUST USE TO SELECT
ITS GOVERNOR.  A METHOD WHICH WOULD BE VALID IF INITIALLY EMPLOYED IS
EQUALLY VALID WHEN EMPLOYED AS AN ALTERNATIVE.  IT WOULD BE SURPRISING
TO CONCLUDE THAT, AFTER A STATE HAS ALREADY HELD TWO PRIMARIES AND ONE
GENERAL ELECTION TO TRY TO ELECT BY A MAJORITY, THE UNITED STATES
CONSTITUTION COMPELS IT TO CONTINUE TO HOLD ELECTIONS IN A FUTILE
EFFORT TO OBTAIN A MAJORITY FOR SOME PARTICULAR CANDIDATE.  STATEWIDE
ELECTIONS COST TIME AND MONEY AND IT IS NOT STRANGE THAT GEORGIA'S
POEPLE DECIDED TO AVOID REPEATED ELECTIONS.  THE METHOD THEY CHOSE FOR
THIS PURPOSE WAS NOT UNIQUE, BUT WAS WELL KNOWN AND FREQUENTLY UTILIZED
BEFORE AND SINCE THE REVOLUTIONARY WAR.  GEORGIA GOVERNORS WERE
SELECTED BY THE STATE LEGISLATURE, NOT THE PEOPLE, UNTIL 1824.  AT THAT
TIME A NEW CONSTITUTION PROVIDED FOR POPULAR ELECTION, BUT WITH THE
PROVISION THAT UPON THE FAILURE OF ANY ONE CANDIDATE TO RECEIVE A
MAJORITY, THE GENERAL ASSEMBLY SHOULD ELECT. 

TWO STATES, MISSISSIPPI AND VERMONT,  (FN2)  THAT PROVIDE FOR
MAJORITY VOTING ALSO PROVIDE FOR STATE LEGISLATIVE ELECTION OF THEIR
GOVERNORS IN CASE OF NO MAJORITY IN THE GENERAL ELECTION.  THIRTY-EIGHT
STATES OF THE UNION WHICH TODAY PROVIDE FOR ELECTION OF THEIR GOVERNORS
BY A PLURALITY ALSO PROVIDE THAT IN CASE OF A TIE VOTE THE STATE
LEGISLATURES SHALL ELECT.  (FN3) 

IT THUS TURNS OUT THAT GEORGIA, CLEARLY ACTING WITHIN ITS RIGHTS AS A
STATE, HAS DECIDED THAT, ANY ONE CANDIDATE FAILING TO OBTAIN A MAJORITY
IN A GENERAL ELECTION, ITS GENERAL ASSEMBLY WILL ELECT ITS GOVERNOR. 
ITS CLEAR CHOICE HAS REMAINED IN ITS CONSTITUTION FOR 142 YEARS.  THE
DISTRICT COURT BELOW TREATED ARTICLE V OF THE GEORGIA CONSTITUTION AS
THE VALID LAW OF THE STATE EXCEPT AS IT THOUGHT ITSELF COMPELLED TO
STRIKE IT DOWN BECAUSE OF GRAY V. SANDERS, SUPRA.  THE GRAY CASE,
HOWEVER, DID NO MORE THAN TO REQUIRE THE STATE TO ELIMINATE THE COUNTY
UNIT MACHINERY FROM ITS ELECTION SYSTEM.  THE STATE DID THIS IN AN
ELECTION THAT RESULTED IN THE ELECTION OF NO CANDIDATE.  ITS DUTY NOW,
UNDER ARTICLE V OF ITS CONSTITUTION, IS TO PROCEED TO HAVE THE GENERAL
ASSEMBLY ELECT ITS GOVERNOR FROM THE TWO HIGHEST CANDIDATES IN THE
ELECTION, UNLESS, AS SOME OF THE PARTIES CONTEND, THE ENTIRE
LEGISLATIVE BODY IS INCAPABLE OF PERFORMING ITS RESPONSIBILITY OF
ELECTING A GOVERNOR BECAUSE IT IS MALAPPORTIONED.  BUT THIS IS NOT
CORRECT.  IN TOOMBS V. FORTSON, 384 U.S. 210, AFFIRMING 241 F. SUPP.
65, WE HELD THAT WITH CERTAIN EXCEPTIONS, NOT HERE MATERIAL, THE
GEORGIA ASSEMBLY COULD CONTINUE TO FUNCTION UNTIL MAY 1, 1968. 
CONSEQUENTLY THE GEORGIA ASSEMBLY IS NOT DISQUALIFIED TO ELECT A
GOVERNOR AS REQUIRED BY ARTICLE V OF THE STATE'S CONSTITUTION.  NEITHER
IS IT DISQUALIFIED BY THE FACT THAT ITS DEMOCRATIC MEMBERS HAD
OBLIGATED THEMSELVES TO SUPPORT THE DEMOCRATIC NOMINEE IN THE GENERAL
ELECTION ON NOVEMBER 8, 1966.  THAT ELECTION IS OVER, AND WITH IT
TERMINATED ANY PROMISES BY THE DEMOCRATIC LEGISLATORS TO SUPPORT THE
DEMOCRATIC NOMINEE. 

ARTICLE V OF GEORGIA'S CONSTITUTION PROVIDES A METHOD FOR SELECTING
THE GOVERNOR WHICH IS AS OLD AS THE NATION ITSELF.  GEORGIA DOES NOT
VIOLATE THE EQUAL PROTECTION CLAUSE BY FOLLOWING THIS ARTICLE AS IT WAS
WRITTEN.  REVERSED. 

FN1  ARTICLE V, SEC 1, PARA IV (GA. CODE ANN. SEC 2-3004).  "HOW
RETURNS PUBLISHED.  - THE MEMBERS OF EACH BRANCH OF THE GENERAL
ASSEMBLY SHALL CONVENE IN THE REPRESENTATIVE HALL, AND THE PRESIDENT OF
THE SENATE AND SPEAKER OF THE HOUSE OF REPRESENTATIVES SHALL OPEN AND
PUBLISH THE RETURNS IN THE PRESENCE AND UNDER THE DIRECTION OF THE
GENERAL ASSEMBLY; AND THE PERSON HAVING THE MAJORITY OF THE WHOLE
NUMBER OF VOTES, SHALL BE DECLARED DULY ELECTED GOVERNOR OF THIS STATE;
BUT, IF NO PERSON SHALL HAVE SUCH MAJORITY, THEN FROM THE TWO PERSONS
HAVING THE HIGHEST NUMBER OF VOTES, WHO SHALL BE IN LIFE, AND SHALL NOT
DECLINE AN ELECTION AT THE TIME APPOINTED FOR THE GENERAL ASSEMBLY TO
ELECT, THE GENERAL ASSEMBLY SHALL IMMEDIATELY, ELECT A GOVERNOR VIVA
VOCE; AND IN ALL CASES OF ELECTION OF A GOVERNOR BY THE GENERAL
ASSEMBLY, A MAJORITY OF THE MEMBERS PRESENT SHALL BE NECESSARY TO A
CHOICE." 

FN2  MISS.  CONST., ART. 5, SECS 140, 141; VT. CONST., C. II, SEC
39. 

FN3  THIS IS BY STATUTORY PROVISION IN NORTH CAROLINA AND BY
CONSTITUTIONAL PROVISION IN ALABAMA, ARIZONA, ARKANSAS, COLORADO,
CONNECTICUT, DELAWARE, IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS,
LOUISIANA, MAINE, MARYLAND, MISSOURI, MONTANA, NEBRASKA, NEVADA, NEW
HAMPSHIRE, NEW JERSEY, NEW MEXICO, NORTH DAKOTA, OHIO, OKLAHOMA,
OREGON, PENNSYLVANIA, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA,
TENNESSEE, TEXAS, UTAH, VIRGINIA, WASHINGTON, WEST VIRGINIA, WISCONSIN,
AND WYOMING. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN, AND MR. JUSTICE FORTAS CONCUR, DISSENTING. 

THIS IS AN APPEAL FROM A DECISION OF A THREE-JUDGE DISTRICT COURT
DECLARING UNCONSTITUTIONAL AND ENJOINING THE ENFORCEMENT OF ARTICLE V,
THE ELECTION OF THE GOVERNOR OF GEORGIA BY THE GENERAL ASSEMBLY WHEN NO
CANDIDATE HAS RECEIVED A MAJORITY OF THE TOTAL VOTES CAST IN THE
GENERAL ELECTION.  (FN1) 

WE ARE TOLD THAT IN THE NOVEMBER 8, 1966, GENERAL ELECTION FOR
GOVERNOR, THERE WERE 955,770 VOTES CAST AS FOLLOWS:

            HOWARD H. CALLAWAY     449,894 VOTES OR 47.07%

                          LESTER G. MADDOX       448,044 VOTES OR
46.88%

                          ELLIS G. ARNALL       57,832 VOTES OR
6.05% 

THE GEORGIA ELECTION CODE PROVIDES THAT "NO CANDIDATE SHALL BE
NOMINATED FOR PUBLIC OFFICE IN ANY PRIMARY OR ELECTED TO PUBLIC OFFICE
IN ANY ELECTION UNLESS SUCH CANDIDATE SHALL HAVE RECEIVED A MAJORITY OF
THE VOTES CAST TO FILL SUCH NOMINATION OR PUBLIC OFFICE."  GA. CODE
ANN. SEC 34-1514 (SUPP. 1965).  THAT LAW GOES ON TO PROVIDE THAT WHERE
NO CANDIDATE "RECEIVES A MAJORITY OF THE VOTES CAST, A RUNOFF PRIMARY
OR ELECTION SHALL BE HELD, BETWEEN THE TWO CANDIDATES RECEIVING THE
HIGHEST NUMBER OF VOTES," AND THE CANDIDATE WHO RECEIVES "A MAJORITY OF
THE VOTES CAST IN SUCH RUNOFF" SHALL BE DECLARED THE WINNER.  THE
ATTORNEY GENERAL OF GEORGIA RENDERED AN OPINION ON OCTOBER 21, 1966,
THAT THE PROVISIONS OF SEC 34-1514 WERE IN CONFLICT WITH THE PROVISIONS
OF THE GEORGIA CONSTITUTION AND THAT THE LATTER CONTROLLED IN THE EVENT
NO CANDIDATE FOR GOVERNOR RECEIVED A MAJORITY IN THE GENERAL ELECTION. 

THIS ACTION FOR A DECLARATORY JUDGMENT WAS BROUGHT BY CITIZENS OF
GEORGIA RESIDING IN COUNTIES THROUGHOUT THE STATE WHO VOTED IN THE
NOVEMBER 8, 1966, GENERAL ELECTION FOR GOVERNOR.  THEY ASK FOR THE
BENEFIT OF A RUNOFF ELECTION BETWEEN THE TWO CANDIDATES WHO RECEIVED
THE HIGHEST NUMBER OF VOTES AS PROVIDED IN SEC 34-1514 OR A SPECIAL
ELECTION PURSUANT TO THE GEORGIA ELECTION CODE.  (FN2)  THE DISTRICT
COURT HELD THE PROVISION OF THE GEORGIA CONSTITUTION WHICH PLACED THE
ELECTION OF THE GOVERNOR IN THE GENERAL ASSEMBLY UNCONSTITUTIONAL AND
VOID.  262 F. SUPP. 93.  IT ISSUED A STAY FOR A PERIOD OF 10 DAYS SO AS
TO ENABLE THE APPELLANT TO SEEK AN ADDITIONAL STAY HERE AND RETAINED
JURISDICTION FOR SUCH OTHER AND FURTHER PROCEEDINGS AS MIGHT BE DEEMED
APPLICABLE AND JUST.  THE CASE IS HERE BY APPEAL WHICH WE NOTED, AND WE
EXPEDITED THE HEARING BECAUSE OF THE URGENCY OF THE ISSUE PRESENTED. 
POST, P. 955. 

THE COURT MISSTATES THE QUESTION WE MUST DECIDE.  IT IS NOT WHETHER
GEORGIA MAY SELECT A GOVERNOR THROUGH A LEGISLATIVE ELECTION.  (FN3)
IT IS WHETHER THE LEGISLATURE MAY MAKE THE FINAL CHOICE WHEN THE
ELECTION HAS BEEN ENTRUSTED TO THE PEOPLE AND NO CANDIDATE HAS RECEIVED
A MAJORITY OF THE VOTES.   IN OTHER WORDS, THE LEGISLATIVE CHOICE IS
ONLY A PART OF THE POPULAR ELECTION MACHINERY.  THE 1824 AMENDMENT TO
THE 1798 CONSTITUTION OF GEORGIA, WHICH GAVE THE LEGISLATURE POWER TO
ELECT A GOVERNOR, TREATED THAT STAGE AS ONLY ONE OF TWO IN THE GENERAL
ELECTION.  (FN4)  THE FIRST STAGE, THEN AS NOW, WAS AN ELECTION OPEN TO
"THE PERSONS QUALIFIED TO VOTE FOR MEMBERS OF THE GENERAL ASSEMBLY." 
GA. CONST. 1798, ART. II, SEC 2, AS AMENDED, 1824. 

IT IS SAID THAT THE GENERAL ELECTION IS OVER AND THAT A NEW, AND
DIFFERENT, ALTERNATIVE PROCEDURE IS NOW ABOUT TO BE USED.  BUT THAT IS
BELIED BY THE REALITIES.  THE PRIMARY ELECTION SELECTED THE PARTY
CANDIDATES, THE CHOICES OF THE TWO PARTIES ARE STILL IN BALANCE, AND
THE LEGISLATIVE CHOICE IS RESTRICTED TO THOSE TWO CANDIDATES.  THE
ELECTION, COMMENCING WITH THE PRIMARY, WILL INDEED NOT BE FINALLY
COMPLETED UNTIL THE WINNER HAS TAKEN THE OATH OF OFFICE.  UP TO THEN
THE VACANCY WHICH OCCASIONED THE ELECTION HAS NOT BEEN FILLED. 

OUR STARTING POINT IS WHAT WE SAID IN GRAY V. SANDERS, 372 U.S. 368,
379-380: 

"ONCE THE GEOGRAPHICAL UNIT FOR WHICH A REPRESENTATIVE IS TO BE
CHOSEN IS DESIGNATED, ALL WHO PARTICIPATE IN THE ELECTION ARE TO HAVE
AN EQUAL VOTE - WHATEVER THEIR RACE, WHATEVER THEIR SEX, WHATEVER THEIR
OCCUPATION, WHATEVER THEIR INCOME, AND WHEREVER THEIR HOME MAY BE IN
THAT GEOGRAPHICAL UNIT.  THIS IS REQUIRED BY THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  THE CONCEPT OF 'WE THE PEOPLE'
UNDER THE CONSTITUTION VISUALIZES NO PREFERRED CLASS OF VOTERS BUT
EQUALITY AMONG THOSE WHO MEET THE BASIC QUALIFICATIONS." 

IT IS ARGUED WITH EARNESTNESS THAT IF THE ELECTORAL COLLEGE CAN BE
USED TO SELECT A PRESIDENT, A LEGISLATURE CAN BE USED TO SELECT A
GOVERNOR.  IT IS SAID THAT THERE IS NO MORE A VIOLATION OF THE "ONE
PERSON, ONE VOTE" PRINCIPLE IN THE ONE THAN IN THE OTHER.  BUT THE
TWELFTH AMENDMENT CREATES THE EXCEPTION IN CASE OF A PRESIDENT.  THERE
IS NO LIKE EXCEPTION IN THE CHOICE OF A GOVERNOR.  (FN5)    "THE ONLY
WEIGHTING OF VOTES SANCTIONED BY THE CONSTITUTION CONCERNS MATTERS OF
REPRESENTATION, SUCH AS THE ALLOCATION OF SENATORS IRRESPECTIVE OF
POPULATION AND THE USE OF THE ELECTORAL COLLEGE IN THE CHOICE OF A
PRESIDENT  ...  .  BUT ONCE THE CLASS OF VOTERS IS CHOSEN AND THEIR
QUALIFICATIONS SPECIFIED, WE SEE NO CONSTITUTIONAL WAY BY WHICH
EQUALITY OF VOTING POWER MAY BE EVADED  ...  .           *         *
*         *     * 

"THE CONCEPTION OF POLITICAL EQUALITY FROM THE DECLARATION OF
INDEPENDENCE, TO 

     *         *         *     *         * CAN MEAN ONLY ONE THING
ONE PERSON, ONE VOTE."  GRAY V. SANDERS, SUPRA, AT 380-381. 

IF THE LEGISLATURE IS USED TO DETERMINE THE OUTCOME OF A GENERAL
ELECTION, THE VOTES CAST IN THAT ELECTION WOULD BE WEIGHTED, CONTRARY
TO THE PRINCIPLE OF "ONE PERSON, ONE VOTE."  ALL THE VICES WE FOUND
INHERENT IN THE COUNTY UNIT SYSTEM IN GRAY V. SANDERS ARE INHERENT WHEN
THE CHOICE IS LEFT TO THE LEGISLATURE.  A LEGISLATOR WHEN VOTING FOR
GOVERNOR HAS ONLY A SINGLE VOTE.  EVEN IF HE FOLLOWED THE MAJORITY VOTE
OF HIS CONSTITUENCY, HE WOULD NECESSARILY DISREGARD THE VOTES OF THOSE
WHO VOTED FOR THE OTHER CANDIDATE, WHETHER THEIR VOTES ALMOST CARRIED
THE DAY OR WERE WAY IN THE MINORITY.  (FN6)  HE WOULD NOT BE UNDER A
MANDATE TO FOLLOW THE MAJORITY OR PLURALITY VOTES IN HIS CONSTITUENCY,
BUT MIGHT CAST HIS SINGLE VOTE ON THE SIDE OF THE MINORITY IN HIS
DISTRICT.  EVEN IF HE VOTED FOR THE CANDIDATE RECEIVING A PLURALITY OF
VOTES CAST IN HIS DISTRICT AND EVEN IF EACH SENATOR AND REPRESENTATIVE
FOLOWED THE SAME COURSE, A CANDIDATE WHO RECEIVED A MINORITY OF THE
POPULAR VOTE MIGHT RECEIVE A CLEAR MAJORITY OF THE VOTES CAST IN THE
LEGISLATURE.  AS STATED BY THE DISTRICT COURT: 

"THE GEORGIA ELECTION SYSTEM IN THE CONSTITUTIONAL PROVISION NOW
UNDER CONSIDERATION PERMITS UNEQUAL TREATMENT OF THE VOTERS WITHIN THE
CLASS OF VOTERS SELECTED, AND IT THUS CANNOT STAND.  MANY ARGUMENTS MAY
BE MADE, BUT WE NEED GO NO FURTHER THAN TO POINT OUT, AS STATED, THAT
THE CANDIDATE RECEIVING THE LESSER NUMBER OF VOTES MAY BE ELECTED BY
THE GENERAL ASSEMBLY.  THIS WOULD GIVE GREATER WEIGHT TO THE VOTES OF
THOSE CITIZENS WHO VOTED FOR THIS CANDIDATE AND NECESSARILY DILUTE THE
VOTES OF THOSE CITIZENS WHO CAST THEIR BALLOTS FOR THE CANDIDATE
RECEIVING THE GREATER NUMBER OF VOTES.  THE WILL OF THE GREATER NUMBER
MAY BE IGNORED."  262 F. SUPP., AT 95. 

I HAVE SAID ENOUGH TO INDICATE WHY THE SUBSTITUTION OF THE GEORGIA
LEGISLATURE FOR A RUNOFF VOTE IS AN UNCONSTITUTIONAL WEIGHTING OF
VOTES, HAVING ALL THE VICES OF THE COUNTY UNIT SYSTEM THAT WE
INVALIDATED IN GRAY V. SANDERS. 

WHAT IS APPROVED TODAY CAN, MOREOVER, BE THE INSTRUMENT TO PERPETUATE
A "ONE PARTY" SYSTEM IN LIKE DEROGATION OF THE PRINCIPLE OF "ONE
PERSON, ONE VOTE."  THE PLEDGE THAT EVERY DEMOCRATIC MEMBER OF THE
GEORGIA LEGISLATURE TOOK PROVIDES IN PART:  "I FURTHER PLEDGE MYSELF TO
SUPPORT AT THE GENERAL ELECTION OF NOVEMBER 8, 1966, ALL CANDIDATES
NOMINATED BY THE DEMOCRATIC PARTY OF THE STATE OF GEORGIA."  THAT
ELECTION HAS NOT BEEN COMPLETED.  WE ARE, AS I HAVE SAID, IN THE SECOND
STAGE OF IT.  THE DEMOCRATS CONTROL 183 SEATS  (FN7)  IN A 205-MEMBER
HOUSE AND 46 SEATS IN A 54-MEMBER SENATE.  WE WOULD BE LESS THAN NAIVE
TO BELIEVE THAT THE MOMENTUM OF THAT OATH HAS NOW BEEN DISSIPATED AND
THAT THE PREDOMINANTLY DEMOCRATIC LEGISLATURE HAS NOW BECOME NEUTRAL. 

THE FACT THAT THIS CONSTITUTIONAL PROVISION ALLOWING THE LEGISLATURE
TO CHOOSE THE GOVERNOR WAS ADOPTED BY THE PEOPLE OF GEORGIA IS "WITHOUT
FEDERAL CONSTITUTIONAL SIGNIFICANCE, IF THE SCHEME ADOPTED FAILS TO
SATISFY THE BASIC REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE, AS
DELINEATED IN OUR OPINION IN REYNOLDS V. SIMS."  SEE LUCAS V. COLORADO
GENERAL ASSEMBLY, 377 U.S. 713, 737.  WE DEALT THERE WITH AN
APPORTIONMENT PLAN THAT HAD BEEN ADOPTED BY A POPULAR REFERENDUM.  WE
REPEAT WHAT WE SAID:  "A CITIZEN'S CONSTITUTIONAL RIGHTS CAN HARDLY BE
INFRINGED SIMPLY BECAUSE A MAJORITY OF THE PEOPLE CHOOSE THAT IT BE." 
ID., 736-737. 

I WOULD AFFIRM THE JUDGMENT OF THE THREE-JUDGE COURT AND REMAND THE
CAUSE FOR THE FASHIONING OF AN APPROPRIATE DECREE FOR A RUNOFF ELECTION
IN WHICH THE PEOPLE'S CHOICE WILL BE DETERMINED. 

FN1  THE GEORGIA CONSTITUTION, ART. V, SEC 1, PARA IV, PROVIDES: 

"THE MEMBERS OF EACH BRANCH OF THE GENERAL ASSEMBLY SHALL CONVENE IN
THE REPRESENTATIVE HALL, AND THE PRESIDENT OF THE SENATE AND SPEAKER OF
THE HOUSE OF REPRESENTATIVES SHALL OPEN AND PUBLISH THE RETURNS IN THE
PRESENCE AND UNDER THE DIRECTION OF THE GENERAL ASSEMBLY; AND THE
PERSON HAVING THE MAJORITY OF THE WHOLE NUMBER OF VOTES, SHALL BE
DECLARED DULY ELECTED GOVERNOR OF THIS STATE; BUT, IF NO PERSON SHALL
HAVE SUCH MAJORITY, THEN FROM THE TWO PERSONS HAVING THE HIGHEST NUMBER
OF VOTES, WHO SHALL BE IN LIFE, AND SHALL NOT DECLINE AN ELECTION AT
THE TIME APPOINTED FOR THE GENERAL ASSEMBLY TO ELECT, THE GENERAL
ASSEMBLY SHALL IMMEDIATELY, ELECT A GOVERNOR VIVA VOCE; AND IN ALL
CASES OF ELECTION OF A GOVERNOR BY THE GENERAL ASSEMBLY, A MAJORITY OF
THE MEMBERS PRESENT SHALL BE NECESSARY TO A CHOICE." 

FN2  GA. CODE ANN. SEC 34-1515 (SUPP. 1965) PROVIDES: 

"WHENEVER ANY PRIMARY OR ELECTION SHALL FAIL TO FILL A PARTICULAR
NOMINATION OR OFFICE AND SUCH FAILURE CANNOT BE CURED BY A RUNOFF
PRIMARY OR ELECTION ...  THEN THE AUTHORITY, WITH WHOM THE CANDIDATES
FOR SUCH NOMINATION OR OFFICE FILED THEIR NOTICE OF CANDIDACY, SHALL
THEREUPON CALL A SPECIAL PRIMARY OR ELECTION TO FILL SUCH POSITION." 

FN3  GEORGIA'S STATE AUDITOR IS CHOSEN BY THE LEGISLATURE.  GA. CODE
ANN. SEC 40-1801. 

FN4  ORIGINALLY GEORGIA LEFT THE SELECTION OF GOVERNOR TO THE
LEGISLATURE, THE HOUSE SELECTING THREE CANDIDATES AND THE SENATE
CHOOSING ONE OF THE THREE BY MAJORITY VOTE.  GA.  CONST. 1789, ART. II,
SEC 2. 

FN5  "WE THINK THE ANALOGIES TO THE ELECTORAL COLLEGE, TO DISTRICTING
AND REDISTRICTING, AND TO OTHER PHASES OF THE PROBLEMS OF
REPRESENTATION IN STATE OR FEDERAL LEGISLATURES OR CONVENTIONS ARE
INAPPOSITE.  THE INCLUSION OF THE ELECTORAL COLLEGE IN THE
CONSTITUTION, AS THE RESULT OF SPECIFIC HISTORICAL CONCERNS, VALIDATED
THE COLLEGIATE PRINCIPLE DESPITE ITS INHERENT NUMERICAL INEQUALITY, BUT
IMPLIED NOTHING ABOUT THE USE OF AN ANALOGOUS SYSTEM BY A STATE IN A
STATEWIDE ELECTION.  NO SUCH SPECIFIC ACCOMMODATION OF THE LATTER WAS
EVER UNDERTAKEN, AND THEREFORE NO VALIDATION OF ITS NUMERICAL
INEQUALITY ENSUED."  GRAY V. SANDERS, 372 U.S. 368, 378. 

FN6  IN GRAY V. SANDERS, SUPRA, IN SPEAKING OF THIS SAME VICE IN THE
COUNTY UNIT SYSTEM WE SAID: 

"  ...  IF A CANDIDATE WON 6,000 OF 10,000 VOTES IN A PARTICULAR
COUNTY, HE WOULD GET THE ENTIRE UNIT VOTE, THE 4,000 OTHER VOTES FOR A
DIFFERENT CANDIDATE BEING WORTH NOTHING AND BEING COUNTED ONLY FOR THE
PURPOSE OF BEING DISCARDED."  372 U.S., AT 381, N. 12. 

FN7  THIS FIGURE DOES NOT TAKE INTO ACCOUNT A RUNOFF ELECTION HELD ON
NOVEMBER 22, 1966, TO FILL A HOUSE SEAT. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

I JOIN THE OPINION OF MY BROTHER DOUGLAS, BUT I ADD THE FOLLOWING: 

THE SPECIFIC QUESTION BEFORE US IS THE VALIDITY OF THE GEORGIA
CONSTITUTIONAL PROVISION WHICH, AFTER VESTING IN THE PEOPLE "FULL AND
COMPLETE POWER TO ELECT A GOVERNOR,"  (FN1)  PROVIDES THAT IF NO
CANDIDATE RECEIVES A MAJORITY, THE LEGISLATURE SHALL SELECT THE WINNER
FROM THE TWO CANDIDATES RECEIVING THE HIGHEST POPULAR VOTE.  THE
LEGISLATURE MAY SELECT THE CANDIDATE WHO RECEIVED FEWER POPULAR VOTES
THAN HIS RIVAL.  IN MY OPINION, THIS SCHEME IS FORBIDDEN BY THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AS CONSTRUED BY THIS
COURT. 

1.  GRAY V. SANDERS, 372 U.S. 368 (1963), RELATED TO GEORGIA PRIMARY
ELECTIONS TO NOMINATE CANDIDATES FOR STATEWIDE OFFICE, INCLUDING
GOVERNOR.  IT HELD THAT WHERE THE VOTE CAST BY EACH CITIZEN DOES NOT
HAVE FULL AND EQUAL EFFECT AS A RESULT OF OPERATION OF THE COUNTY UNIT
SYSTEM, THE EQUAL PROTECTION CLAUSE IS VIOLATED.  IF THE CONSTITUTION
OF GEORGIA INCORPORATED THE COUNTY UNIT SYSTEM AS PART OF THE MECHANICS
FOR ELECTION OF GOVERNOR, I ASSUME THERE WOULD BE NO DOUBT THAT GRAY V.
SANDERS WOULD INVALIDATE THE PROVISION.  UNLESS THE COURT IS OVERRULING
GRAY V. SANDERS, IT PRESUMABLY WOULD NOT VALIDATE A GEORGIA
CONSTITUTIONAL PROVISION WHICH SAID THAT IF A MAJORITY OF THE VOTES ARE
NOT CAST FOR ONE CANDIDATE, THEY WILL BE RECOMPUTED ON A COUNTY UNIT
BASIS WHICH IS NOT PROPORTIONATE TO THE VOTING POPULATION, AND THE
RESULT OF THAT RECOMPUTATION WOULD DETERMINE THE WINNER.  IT IS NO LESS
A DENIAL OF EQUAL PROTECTION OF THE LAWS FOR THE RESULT OF AN ELECTION
TO BE DETERMINED, NOT BY THE VOTERS, BUT BY THE LEGISLATURE ON A BASIS
WHICH IS NOT RELATED TO THE VOTES CAST.  NO LESS THAN THE COUNTY UNIT
SYSTEM, THIS MEANS THAT THE VOTE CAST BY A CITIZEN IS SUBJECT TO
NULLIFICATION BY THE LEGISLATURE.  THE INTEGRITY OF THE VOTE IS
UNDERMINED AND DESTROYED BY ANY SCHEME WHICH CAN RESULT IN THE
SELECTION OF A PERSON AS GOVERNOR WHO RECEIVES THE LESSER NUMBER OF
POPULAR VOTES.  IF THE VOTING RIGHT IS TO MEAN ANYTHING, IT CERTAINLY
MUST BE PROTECTED AGAINST THE POSSIBILITY THAT VICTORY WILL GO TO THE
LOSER. 

2.  IT DISTORTS REALITY TO SAY, AS THE MAJORITY HERE DO, THAT THIS
ELECTION IS TO BE SCRUBBED AND IGNORED, AND TO PROCEED AS IF WE WERE
DEALING WITH A SITUATION IN WHICH GEORGIA'S CONSTITUTION MERELY
PROVIDED FOR THE SELECTION OF A GOVERNOR BY THE LEGISLATURE.  THAT IS
NOT THE CASE.  IF IT WERE THE INTENT OF THE CONSTITUTION TO SCRUB THE
POPULAR ELECTION AND TO CAUSE SELECTION BY THE LEGISLATURE AS AN
INDEPENDENT PROCESS, THE LEGISLATURE WOULD NOT BE BOUND TO SELECT FROM
THE TWO WHO RECEIVED AT THE POLLS THE HIGHEST NUMBER OF VOTES.  THE
LEGISLATURE WOULD BE GIVEN FREE CHOICE.  AS MY BROTHER DOUGLAS' OPINION
SHOWS, THE CONSTITUTION ATTEMPTS SOMETHING QUITE DIFFERENT.  IT
PURPORTS TO GIVE THE LEGISLATURE POWER TO COMPLETE THE PROCESS BEGUN AT
THE POLLS - TO CAST ASIDE THE VOTE OF THE ELECTORATE AND AWARD THE
OFFICE TO THE WINNER OR THE LOSER OF THE POPULAR ELECTION, AS IT MAY
SEE FIT.  THE ANALOGY TO GRAY V. SANDERS IS CLEAR.  THIS IS JUST AS IF,
FOR EXAMPLE, THE VOTERS EXPRESSED THEIR PREFERENCES AT THE POLLS, AND
THEN THE WINNER WAS SELECTED NOT ON THE BASIS OF RECEIVING MOST VOTES,
BUT ON THE BASIS OF SELECTION BY OFFICIALS OF THE COUNTIES CONCERNED. 
(FN2) 

3.  THE GEORGIA LEGISLATURE IS CONCEDEDLY MALAPPORTIONED, AND IS
UNDER A FEDERAL COURT ORDER TO REAPPORTION ITSELF.  TOOMBS V. FORTSON,
384 U.S. 210 (1966), AFFIRMING 241 F. SUPP.  65 (D.C.N.D. GA. 1965). 
SEE ALSO FORTSON V. TOOMBS.  379 U.S. 621 (1965).  A MAJORITY OF THE
LEGISLATORS IN GEORGIA'S LEGISLATURE MAY REPRESENT A MINORITY OF THE
VOTERS.  BUT THE COURT TODAY CONCLUDES THAT DESPITE THE FACT THAT IT
HAS BRANDED THE LEGISLATURE AS APPORTIONED IN VIOLATION OF THE
CONSTITUTION OF THE UNITED STATES, IT MAY NEVERTHELESS SELECT THE
GOVERNOR.  THE COURT STATES AS ITS REASON FOR DISREGARDING THIS THAT
"IN TOOMBS V. FORTSON  ...  WE HELD THAT WITH CERTAIN EXCEPTIONS, NOT
HERE MATERIAL, THE GEORGIA ASSEMBLY COULD CONTINUE TO FUNCTION UNTIL
MAY 1, 1968."  THIS IS INDEED A WEAK REED FOR SO MONUMENTAL A
CONCLUSION.  THE USE OF A MALAPPORTIONED LEGISLATURE TO SELECT A
GOVERNOR IS TO PERPETUATE THE ELECTORAL VICES WHICH THIS COURT DECREED
THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT FORBADE A
STATE TO INCORPORATE IN ITS ELECTION PROCEDURES.  REYNOLDS V. SIMS, 377
U.S. 533 (1964); GRAY V. SANDERS, SUPRA.  WE HAVE DECLINED TO DEPRIVE A
MALAPPORTIONED LEGISLATURE OF ITS DE FACTO STATUS AS A LEGISLATURE. 
BUT NOT UNTIL TODAY HAS THIS COURT ALLOWED A MALAPPORTIONED LEGISLATURE
TO BE THE DEVICE FOR DOING INDIRECTLY WHAT A STATE MAY NOT DO
DIRECTLY.  IF THIS COURT HAD FORESEEN THAT EVENTS WOULD PLACE THE
GEORGIA LEGISLATURE IN A POSITION TO OVERRIDE THE VOTE OF A PLURALITY
OF THE VOTERS AND TO SELECT AS GOVERNOR OF THE STATE THE LOSER AT THE
POLLS, I EXPECT THAT IT WOULD HAVE INCLUDED THIS POWER AS ONE OF THE
"EXCEPTIONS," FORBIDDEN TO THIS LEGISLATURE WHICH, THIS COURT HAS HELD,
FUNCTIONS ONLY BY JUDICIAL SUFFERANCE DESPITE ITS CONSTITUTIONAL
INFIRMITY.  TO A READER OF GRAY V. SANDERS, FORTSON V. TOOMBS, AND
TOOMBS V. FORTSON, IT MUST SEEM INCONCEIVABLE THAT THE COURT WOULD
PERMIT THIS MALAPPORTIONED LEGISLATURE TO SELECT GEORGIA'S GOVERNOR IN
THESE CIRCUMSTANCES.  INDEED, THE IRONY OF THE MATTER IS THAT A THREE
JUDGE FEDERAL COURT HELD THAT THE GEORGIA LEGISLATURE WAS SO
MALAPPORTIONED THAT IT COULD NOT PROPERLY SUBMIT TO THE VOTERS A NEW
CONSTITUTION, ADOPTED BY BOTH HOUSES OF THE GEORGIA LEGISLATURE, WHICH
WOULD HAVE ABOLISHED THE PROVISIONS FOR LEGISLATIVE SELECTION OF A
GOVERNOR AND HAVE SUBSTITUTED A RUNOFF OR SPECIAL ELECTION.  SEE
FORTSON V. TOOMBS, SUPRA.  ON APPEAL, THIS COURT, PER CURIAM, DECLINED
TO RULE THAT THE DISTRICT COURT'S DECREE WAS UNLAWFUL, BUT BECAUSE IT
WAS REPRESENTED THAT THE DECREE MIGHT BE MOOT, THE COURT REMANDED FOR
RECONSIDERATION IN LIGHT OF THE CIRCUMSTANCES WHICH ALLEGEDLY MADE THE
DECREE NO LONGER PERTINENT.  FORTSON, SUPRA.  BUT NOW THE COURT HOLDS
THAT THIS SAME UNREFORMED LEGISLATURE IS NOT SO MALAPPORTIONED THAT IT
CANNOT ITSELF SELECT THE GOVERNOR BY ITS DIRECT ACTION]  I CONFESS
TOTAL INABILITY TO UNDERSTAND HOW THE TWO RULINGS CAN BE RECONCILED. 

4.  IN DENYING THE APPLICABILITY OF GRAY V. SANDERS, THE COURT SAYS
THAT IT WAS "ONLY A VOTING CASE" AND THAT IT HAS NOTHING TO DO WITH A
STATE'S DECISION THAT THE VOTERS WILL BE OUSTED FROM THEIR FUNCTIONS,
THE VOTES CAST BY THEM NULLIFIED, AND THE LEGISLATURE AUTHORIZED TO
SELECT THE CANDIDATE THAT MOST OF THE ELECTORATE REPUDIATED.  I
RESPECTFULLY SUBMIT THAT THIS, TOO, IS "A VOTING CASE."  IT IS NO LESS
A VOTING CASE BECAUSE IT DEALS WITH A STATE MECHANISM FOR TOTAL
DISREGARD OF THE PRINCIPLE OF ONE MAN, ONE VOTE.  IT IS NO LESS A
VOTING CASE BECAUSE IT DEALS WITH THE ELECTION OF THE GOVERNOR RATHER
THAN HIS NOMINATION AS IN GRAY V. SANDERS.  I SHOULD ASSUME -
DIFFIDENTLY IN VIEW OF TODAY'S STARTLING RESULT - THAT THIS COURT WOULD
NOT RULE THAT THE FEDERAL CONSTITUTION WOULD TOLERATE A STATE
CONSTITUTIONAL PROVISION THAT WOULD ENABLE THE GOVERNOR TO APPOINT THE
LEGISLATURE - OR TO APPOINT ANY LEGISLATORS FOR ELECTION DISTRICTS IF
NO CANDIDATE RECEIVED A MAJORITY OF THE VOTES - OR TWO-THIRDS - OR
THREE-FOURTHS.  BUT THERE IS NO DIFFERENCE IN PRINCIPLE BETWEEN THIS
AND THE RESULT SANCTIONED TODAY.  IF A STATE CAN VALIDLY PROVIDE THAT
THE RESULT AT THE POLLS CAN BE DISREGARDED AND THE OUTCOME REMOVED FROM
DEMOCRATIC PROCESSES WHERE NO CANDIDATE FOR GOVERNOR RECEIVES A
MAJORITY, THERE IS NO REASON WHY THE SAME RULE CANNOT BE APPLIED TO
LEGISLATORS.  MOREOVER, THE COURT TODAY ANNOUNCES IN AN OFFHAND MANNER,
AS A SIDE EFFECT OF TODAY'S DECISION, WITHOUT ADEQUATE ARGUMENT OR
CONSIDERATION, THAT A STATE MAY TODAY, AS SOME STATES DID LONG AGO,
PROVIDE THAT ITS GOVERNOR SHALL BE SELECTED BY ITS LEGISLATURE IN TOTAL
DISREGARD OF THE VOTERS.  I DO NOT BELIEVE THAT THE ISSUE IS SO EASY. 
MUCH WATER HAS GONE UNDER THE BRIDGE SINCE THE LATE 1700'S AND THE
EARLY 1800'S.  OUR UNDERSTANDING AND CONCEPTION OF THE RIGHTS
GUARANTEED TO THE PEOPLE BY THE "STATELY ADMONITIONS"  (FN3)  OF THE
FOURTEENTH AMENDMENT HAVE DEEPENED, AND HAVE RESULTED IN A SERIES OF
DECISIONS,  (FN4)  ENRICHING THE QUALITY OF OUR DEMOCRACY, WHICH
CERTAINLY DO NOT CODIFY STATE'S RIGHTS, GOVERNMENTAL THEORIES OR
CONCEPTIONS OF HUMAN LIBERTIES AS THEY EXISTED IN 1824, THE DATE WHEN
GEORGIA ADOPTED ITS PRESENT SYSTEM OF CHOOSING A GOVERNOR.  I HAVE NO
DOUBT, FOR EXAMPLE, THAT IN THE EARLY DAYS OF THE NATION MANY OF THE
STATE LEGISLATURES WERE MALAPPORTIONED.  SEE REYNOLDS V. SIMS, SUPRA,
AT 573, N. 53, AND 602-607 (DISSENT).  BUT THIS DID NOT ENSHRINE THAT
CONDITION FOREVER BEYOND THE REACH OF CONSTITUTIONAL PROHIBITION. 
CERTAINLY, THE ANTIQUITY OF THE PRACTICE DID NOT CAUSE THIS COURT TO
REFRAIN FROM INVALIDATING MALAPPORTIONMENT UNDER THE EQUAL PROTECTION
CLAUSE.  AS MR. JUSTICE HOLMES SAID LONG AGO: 

"WHEN WE ARE DEALING WITH WORDS THAT ALSO ARE A CONSTITUENT ACT, LIKE
THE CONSTITUTION OF THE UNITED STATES, WE MUST REALIZE THAT THEY HAVE
CALLED INTO LIFE A BEING THE DEVELOPMENT OF WHICH COULD NOT HAVE BEEN
FORESEEN COMPLETELY BY THE MOST GIFTED OF ITS BEGETTERS.  IT WAS ENOUGH
FOR THEM TO REALIZE OR TO HOPE THAT THEY HAD CREATED AN ORGANISM; IT
HAS TAKEN A CENTURY AND HAS COST THEIR SUCCESSORS MUCH SWEAT AND BLOOD
TO PROVE THAT THEY CREATED A NATION.  THE CASE BEFORE US MUST BE
CONSIDERED IN THE LIGHT OF OUR WHOLE EXPERIENCE AND NOT MERELY IN THAT
OF WHAT WAS SAID A HUNDRED YEARS AGO."  MISSOURI V. HOLLAND, 252 U.S.
416, 433 (1920).  (FN5) 

5.  I DO NOT BELIEVE THAT THIS COURT IS THE SOLE CUSTODIAN OF THE
CONSTITUTION, OR OF THE DEMOCRATIC LIBERTIES OF THE PEOPLE.  THE POWER
AND THE RESPONSIBILITY REST ALSO WITH THE STATES, THE PEOPLE, AND WITH
LOWER COURTS, INCLUDING THE COURAGEOUS DISTRICT COURT THAT IN THE
PRESENT CASE INSISTED UPON FOLLOWING THIS COURT'S DECISION IN GRAY V.
SANDERS.  BUT IF THE PEOPLE OF GEORGIA - OR MAINE OR CALIFORNIA OR NEW
YORK, FOR THAT MATTER - SHOULD ADOPT A CONSTITUTIONAL AMENDMENT TO
PROVIDE FOR ELECTION OF THEIR GOVERNOR BY THE LEGISLATURE - OR FOR
SELECTION OF THE UPPER HOUSE OF THEIR LEGISLATURE BY THEIR GOVERNOR,
FOR EXAMPLE - I DO NOT BELIEVE THAT THE CONSTITUTIONALITY OF THESE
MEASURES COULD BE CAVALIERLY ASSUMED.  PERHAPS THIS COURT'S VOTING
RIGHTS CASES COULD NOT SO EASILY BE NULLIFIED.  THEIR MEANING AND
THRUST ARE PERHAPS DEEPER THAN THE MECHANICS OF THE TALLY.  THEY ARE,
ONE MAY HOPE, NOT MERELY MUCH ADO ABOUT FORM.  THEY REPRESENT, ONE HAS
BEEN LED TO BELIEVE, AN ACKNOWLEDGEMENT THAT THE REPUBLICAN FORM OF
GOVERNMENT GUARANTEED BY THE CONSTITUTION, READ IN LIGHT OF THE GENERAL
WELFARE CLAUSE, THE GUARANTIES OF EQUAL PROTECTION OF THE LAWS AND THE
PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES, REQUIRES
SOMETHING MORE THAN AN ADHERENCE TO FORM.  THIS COURT'S APPORTIONMENT
AND VOTING RIGHTS DECISIONS SOUNDLY REFLECT A DEEPENING CONCEPTION, IN
KEEPING WITH THE DEVELOPMENT OF OUR SOCIAL, ETHICAL, AND RELIGIOUS
UNDERSTANDING, OF THE MEANING OF OUR GREAT CONSTITUTIONAL GUARANTIES. 
AS SUCH, THEY HAVE REINVIGORATED OUR NATIONAL POLITICAL LIFE AT ITS
ROOTS SO THAT IT MAY CONTINUE ITS GROWTH TO REALIZATION OF THE FULL
STATURE OF OUR CONSTITUTIONAL IDEAL.  TODAY'S DECISION IS A STARTLING
REVERSAL; A BELITTLING, I SAY WITH ALL RESPECT, OF OUR CONSTITUTION'S
DYNAMIC PROVISIONS WITH RESPECT TO THE BASIC INSTRUMENT OF DEMOCRACY -
THE VOTE. 

6.  THE COURT BRUSHES OFF GRAY V. SANDERS BY SAYING THAT IT HAS TO DO
ONLY WITH THE "EQUAL RIGHT" OF ALL VOTERS "TO VOTE AND HAVE THEIR VOTES
COUNTED WITHOUT IMPAIRMENT OR DILUTION."  THAT IS SO. BUT THAT IS
PRECISELY THE ISSUE IN THE PRESENT CASE.  WE HAVE NOT HERETOFORE BEEN
SO BEGUILED BY CHANGES IN THE SCENERY THAT WE HAVE LOST SIGHT OF
PRINCIPLE.  SEE TERRY V. ADAMS, 345 U.S. 461, ESP.  465, N. 1 (1953);
SMITH V. ALLWRIGHT, 321 U.S. 649, 661 (1944).  SEE ALSO WESBERRY V.
SANDERS, 376 U.S. 1, 17 (1964).  HERE, TOO, WE ARE DEALING AT LEAST
WITH THE "IMPAIRMENT" OF THE VOTE - INDEED, WITH THE OBLITERATION OF
ITS EFFECT.  IT IS NOT MERELY THE CASTING OF THE VOTE OR ITS MECHANICAL
COUNTING THAT IS PROTECTED BY THE CONSTITUTION.  IT IS THE FUNCTION -
THE OFFICE - THE EFFECT GIVEN TO THE VOTE, THAT IS PROTECTED. 

A VOTE IS NOT AN OBJECT OF ART. IT IS THE SACRED AND MOST IMPORTANT
INSTRUMENT OF DEMOCRACY AND OF FREEDOM.  IN SIMPLE TERMS, THE VOTE IS
MEANINGLESS - IT NO LONGER SERVES THE PURPOSE OF THE DEMOCRATIC SOCIETY
- UNLESS IT, TAKEN IN THE AGGREGATE WITH THE VOTES OF OTHER CITIZENS,
RESULTS IN EFFECTING THE WILL OF THOSE CITIZENS PROVIDED THAT THEY ARE
MORE NUMEROUS THAN THOSE OF DIFFERING VIEWS.  THAT IS THE MEANING AND
EFFECT OF THE GREAT CONSTITUTIONAL DECISIONS OF THIS COURT. 

IN SHORT, WE MUST BE VIGILANT TO SEE THAT OUR CONSTITUTION PROTECTS
NOT JUST THE RIGHT TO CAST A VOTE, BUT THE RIGHT TO HAVE A VOTE FULLY
SERVE ITS PURPOSE.  IF THE VOTE CAST BY ALL OF THESE WHO FAVOR A
PARTICULAR CANDIDATE EXCEEDS THE NUMBER CAST IN FAVOR OF A RIVAL, THE
RESULT IS CONSTITUTIONALLY PROTECTED AS A MATTER OF EQUAL PROTECTION OF
THE LAWS FROM NULLIFICATION EXCEPT BY THE VOTERS THEMSELVES.  THE
CANDIDATE RECEIVING MORE VOTES THAN ANY OTHER MUST RECEIVE THE OFFICE
UNLESS HE IS DISQUALIFIED ON SOME CONSTITUTIONALLY PERMISSIBLE BASIS OR
UNLESS, IN A RUNOFF OR SOME OTHER TYPE OF ELECTION, THE PEOPLE PROPERLY
AND REGULARLY, BY THEIR VOTES, DECIDE DIFFERENTLY.  "THE RIGHT TO VOTE
IS TOO IMPORTANT IN OUR FREE SOCIETY TO BE STRIPPED OF JUDICIAL
PROTECTION"  (FN6)  BY ANY OTHER INTERPRETATION OF OUR CONSTITUTION. 

IN ESSENCE, GRAY V. SANDERS HELD THAT THE EQUAL PROTECTION CLAUSE IS
VIOLATED WHEN PERSONS ARE ELECTED TO STATEWIDE OFFICE ON A BASIS OTHER
THAN THEIR RECEIVING MORE VOTES THAN THEIR RIVALS.  IN MY OPINION, THIS
PRINCIPLE IS EXACTLY APPLICABLE HERE. 

IT IS WITH THE GREATEST REGRET THAT I CONCLUDE THAT TODAY'S DECISION
REFLECTS A RETREAT FROM CONSTITUTIONAL PRINCIPLES SO SOUNDLY AND SO
PROUDLY DEVELOPED TO APPLY THE CONSTITUTION'S MAGNIFICENT ADMONITIONS
TO THE DEEPENING MORAL AND HUMAN PRINCIPLES OF OUR TIME.  I WOULD
AFFIRM THE DISTRICT COURT. 

FN1  THOMPSON V. TALMADGE, 201 GA. 867, 880, 41 S.E.2D 883, 895
(1947).  THOMPSON INVALIDATED SELECTION OF A GOVERNOR BY THE
LEGISLATURE WHEN THE CANDIDATE WHO RECEIVED A MAJORITY OF THE VOTES
CAST DIED BEFORE TAKING OFFICE. 

FN2  THIS WOULD RESEMBLE THE PRESIDENTIAL ELECTORAL COLLEGE SYSTEM. 
GRAY V. SANDERS EXPRESSLY STATES THAT WHILE THIS SYSTEM IS BEYOND
JUDICIAL REACH BECAUSE IT IS SPECIFICALLY INCORPORATED IN THE FEDERAL
CONSTITUTION, IT DOES NOT INDICATE THE CONSTITUTIONALITY OF ANALOGOUS
STATE SCHEMES.  372 U.S., AT 378.  SEE ALSO REYNOLDS V. SIMS, 377 U.S.
533, 572-577 (1964). 

FN3  LEARNED HAND, SPIRIT OF LIBERTY 163 (1960). 

FN4  SEE, E.G., BAKER V. CARR, 369 U.S. 186 (1962); GRAY V. SANDERS,
SUPRA; WESBERRY V. SANDERS, 376 U.S. 1 (1964); REYNOLDS V. SIMS, 377
U.S. 533 (1964); HARPER V. VIRGINIA BD.  OF ELECTIONS, 383 U.S. 663
(1966). 

FN5  ONLY LAST TERM, THE COURT HELD IN HARPER V. VIRGINIA BD. OF
ELECTIONS, 383 U.S. 663 (1966), THAT THE RIGHT TO VOTE IN STATE
ELECTIONS CANNOT BE BURDENED OR CONDITIONED BY A POLL TAX.  WE
OBSERVED: 

"WE AGREE, OF COURSE, WITH MR. JUSTICE HOLMES THAT THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT 'DOES NOT ENACT MR. HERBERT
SPENCER'S SOCIAL STATICS' (LOCHNER V. NEW YORK, 198 U.S. 45, 75). 
LIKEWISE, THE EQUAL PROTECTION CLAUSE IS NOT SHACKLED TO THE POLITICAL
THEORY OF A PARTICULAR ERA.  IN DETERMINING WHAT LINES ARE
UNCONSTITUTIONALLY DISCRIMINATORY, WE HAVE NEVER BEEN CONFINED TO
HISTORIC NOTIONS OF EQUALITY, ANY MORE THAN WE HAVE RESTRICTED DUE
PROCESS TO A FIXED CATALOGUE OF WHAT WAS AT A GIVEN TIME DEEMED TO BE
THE LIMITS OF FUNDAMENTAL RIGHTS.  SEE MALLOY V. HOGAN, 378 U.S. 1, 5
6.  NOTIONS OF WHAT CONSTITUTES EQUAL TREATMENT FOR PURPOSES OF THE
EQUAL PROTECTION CLAUSE DO CHANGE."  383 U.S., AT 669. 

SEE ALSO THE CLASSIC STATEMENT BY MR. JUSTICE BRANDEIS, IN HIS
DISSENT IN OLMSTEAD V. UNITED STATES, 277 U.S. 438, 472 (1928): 

"'WE MUST NEVER FORGET,' SAID MR. CHIEF JUSTICE MARSHALL IN MCCULLOCH
V. MARYLAND, 4 WHEAT.  316, 407, 'THAT IT IS A CONSTITUTION WE ARE
EXPOUNDING.'  SINCE THEN, THIS COURT HAS REPEATEDLY SUSTAINED THE
EXERCISE OF POWER BY CONGRESS, UNDER VARIOUS CLAUSES OF THAT
INSTRUMENT, OVER OBJECTS OF WHICH THE FATHERS COULD NOT HAVE DREAMED
...  .  WE HAVE LIKEWISE HELD THAT GENERAL LIMITATIONS ON THE POWERS OF
GOVERNMENT, LIKE THOSE EMBODIED IN THE DUE PROCESS CLAUSES OF THE FIFTH
AND FOURTEENTH AMENDMENTS, DO NOT FORBID THE UNITED STATES OR THE
STATES FROM MEETING MODERN CONDITIONS BY REGULATIONS WHICH 'A CENTURY
AGO, OR EVEN HALF A CENTURY AGO, PROBABLY WOULD HAVE BEEN REJECTED AS
ARBITRARY AND OPPRESSIVE.'  VILLAGE OF EUCLID V. AMBLER REALTY CO., 272
U.S. 365, 387; BUCK V. BELL, 274 U.S. 200.  CLAUSES GUARANTEEING TO THE
INDIVIDUAL PROTECTION AGAINST SPECIFIC ABUSES OF POWER, MUST HAVE A
SIMILAR CAPACITY OF ADAPTATION TO A CHANGING WORLD." 

SEE ALSO WEEMS V. UNITED STATES, 217 U.S. 349, 373 (1910). 

FN6  WESBERRY V. SANDERS, SUPRA, AT 7. 
..END :





















FIRST NAT. BANK V. WALKER BANK 385 U.S. 252 


NO. 51.  ARGUED NOVEMBER 7-8, 1966.  - DECIDED DECEMBER 12, 1966.* - NO.
51, 352 F.2D 90; AND NOS. 73 AND 88, AFFIRMED. 

*TOGETHER WITH NO. 73, FIRST SECURITY BANK OF UTAH, N.A. V.
COMMERCIAL SECURITY BANK, AND NO. 88, SAXON, COMPTROLLER OF THE
CURRENCY V. COMMERCIAL SECURITY BANK, ON CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 


THE PROVISIONS OF THE NATIONAL BANK ACT, 12 U.S.C. SEC 36(C), WHICH
AUTHORIZE A NATIONAL BANKING ASSOCIATION, WITH THE COMPTROLLER OF THE
CURRENCY'S APPROVAL, TO ESTABLISH AND OPERATE BRANCH BANKS IF SUCH
OPERATION IS "AT THE TIME EXPRESSLY AUTHORIZED TO STATE BANKS, BY THE
LAW OF THE STATE IN QUESTION," PLACE NATIONAL AND STATE BANKS ON A
BASIS OF "COMPETITIVE EQUALITY" AS FAR AS BRANCH BANKING IS CONCERNED,
AND NATIONAL BANKS MAY ESTABLISH BRANCHES ONLY IN ACCORDANCE WITH ALL
REQUIREMENTS AND CONDITIONS APPLICABLE TO STATE BANKS BY STATE LAW. 
PP. 256-262. 

FIRST NATIONAL BANK OF LOGAN V. WALKER BANK & TRUST CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE THE CONSTRUCTION OF THOSE PORTIONS OF THE
NATIONAL BANK ACT, 44 STAT. 1228, 12 U.S.C. SEC 36(C), WHICH AUTHORIZE
A NATIONAL BANKING ASSOCIATION, WITH THE APPROVAL OF THE COMPTROLLER OF
THE CURRENCY, TO ESTABLISH AND OPERATE NEW BRANCHES WITHIN THE LIMITS
OF THE MUNICIPALITY IN WHICH THE BANK IS LOCATED, IF SUCH OPERATION IS
"AT THE TIME EXPRESSLY AUTHORIZED TO STATE BANKS BY THE LAW OF THE
STATE IN QUESTION."  (FN1)  TWO NATIONAL BANKS WITH THEIR MAIN BANKING
HOUSES IN LOGAN AND OGDEN, UTAH, RESPECTIVELY, SEEK TO OPEN BRANCHES IN
THOSE MUNICIPALITIES.  THE UTAH STATUTE PROHIBITS UTAH BANKS, WITH
CERTAIN EXCEPTIONS NOT HERE RELEVANT, FROM ESTABLISHING BRANCHES EXCEPT
BY TAKING OVER AN EXISTING BANK WHICH HAS BEEN IN OPERATION FOR NOT
LESS THAT FIVE YEARS.  UTAH CODE ANN., TIT. 7, C. 3, SEC 6 (1965
SUPP.).  (FN2)  IN NO. 51, FIRST NATIONAL BANK OF LOGAN V. WALKER BANK
& TRUST CO., THE PETITIONER SEEKS TO ESTABLISH A NEW BRANCH IN LOGAN,
WHERE ITS PRINCIPAL BANKING HOUSE IS LOCATED, WITHOUT TAKING OVER AN
ESTABLISHED BANK.  THE DISTRICT COURT APPROVED ITS DOING SO BUT THE
COURT OF APPEALS REVERSED.  352 F.2D 90 (C.A. 10TH CIR.), SUB NOM.
WALKER BANK & TRUST CO. V. SAXON.  IN NO. 73, FIRST SECURITY BANK OF
UTAH, N.A. V. COMMERCIAL SECURITY BANK, AND NO. 88, SAXON V. COMMERCIAL
SECURITY BANK, FIRST SECURITY SEEKS TO ESTABLISH A NEW BRANCH IN OGDEN,
IN WHICH ITS HOME OFFICE IS SITUATED, WITHOUT TAKING OVER AN
ESTABLISHED BANK.  THE DISTRICT COURT HELD THAT STATE LAW MUST BE
COMPLIED WITH, 236 F. SUPP. 457, AND THE COURT OF APPEALS AFFIRMED IN A
JUDGMENT, WITHOUT OPINION, CITING WALKER BANK & TRUST CO., SUPRA.  IN
VIEW OF A CONFLICT BETWEEN THESE HOLDINGS AND THE DECISION IN FIRST
NATIONAL BANK OF SMITHFIELD V. SAXON, 352 F.2D 267 (C.A. 4TH CIR.), WE
GRANTED CERTIORARI, AND CONSOLIDATED THE THREE CASES FOR ARGUMENT.  384
U.S. 925.  WE AFFIRM THE JUDGMENTS. 

1.  THE FACTS. 

IN NO. 51, THE PETITIONER MAINTAINS ITS PRINCIPAL BANKING HOUSE IN
LOGAN, UTAH, WHICH IS A SECOND CLASS CITY UNDER UTAH LAW (UTAH CODE
ANN., TIT. 10, C. 1, SEC 1 (1953, AS AMENDED)), AND IS THEREFORE
SUBJECT TO SEC 7-3-6 OF THE UTAH CODE, SUPRA.  IT APPLIED TO THE
COMPTROLLER OF THE CURRENCY FOR A CERTIFICATE TO ESTABLISH AN "INSIDE"
BRANCH OFFICE IN LOGAN.  AT THE TIME OF THE APPLICATION THERE WERE NO
OTHER BANKS WITH THEIR MAIN BANKING OFFICES IN LOGAN.  HOWEVER, THERE
WERE TWO BRANCHES OF BANKS WHOSE HOME OFFICES WERE SITUATED OUTSIDE OF
LOGAN, ONE OF WHICH BELONGED TO RESPONDENT, WALKER BANK & TRUST CO.,
WHOSE HOME OFFICE WAS LOCATED IN SALT LAKE CITY.  AFTER A HEARING, THE
COMPTROLLER ORDERED THE CERTIFICATE ISSUED.  THE RESPONDENT
SUBSEQUENTLY FILED THIS SUIT SEEKING A DECLARATORY JUDGMENT AND
INJUNCTIVE RELIEF AGAINST THE COMPTROLLER AND FIRST NATIONAL CLAIMING
THE ACTION OF THE COMPTROLLER TO BE VOID SINCE THE PROPOSED BRANCH WAS
NOT TAKING OVER AN ESTABLISHED BANK IN LOGAN, AS REQUIRED BY UTAH LAW. 
THE DISTRICT COURT DISMISSED THE COMPLAINT.  IT FOUND "EXPRESS
AUTHORITY" UNDER UTAH LAW FOR STATE BANKS TO ESTABLISH BRANCH OFFICES
IN LOGAN, RELYING ON THE GENERAL AUTHORITY OF THE STATUTE AND HOLDING
THAT THE SUBSEQUENT CONDITIONS, SUCH AS THE ACQUISITION OF ANOTHER
BANK, DID NOT "CHANGE THE 'EXPRESS AUTHORITY' INTO A LACK OF AUTHORITY
ON THE PART OF STATE BANKS OR A LACK OF A STATUTORY EXPRESSION OF SUCH
AUTHORITY, AND DID NOT ADD TO THE FEDERAL STATUTE A REQUIREMENT THAT
COMPLIANCE BE MADE BY NATIONAL BANKS WITH ALL STATE CONDITIONS."  234
F. SUPP.  74, 78, N. 8.  THE COURT OF APPEALS REVERSED, HOLDING THAT
THE CONGRESS IN ENACTING SEC 36(C)(1) ACCEDED TO STATE AND NATIONAL
BANKS."  FINDING THAT THE TRIAL COURT'S INTERPRETATION WAS TO THE
CONTRARY, IT DECLARED "THE PROPER APPROACH IS FOR THE COMPTROLLER TO
LOOK AT ALL THE STATE LAW ON BRANCH BANKING NOT JUST PART OF IT."  352
F.2D 90, 94. 

IN NOS. 73 AND 88, THE FIRST SECURITY BANK OF UTAH, A NATIONAL BANK,
APPLIED FOR A CERTIFICATE FROM THE COMPTROLLER TO ESTABLISH A BRANCH
BANK IN OGDEN, WHERE IT MAINTAINED ITS PRINCIPAL BANKING HOUSE.  ITS
PROPOSAL WAS TO OPEN A NEW BRANCH AND NOT TO TAKE OVER AN EXISTING BANK
IN OGDEN.  UNDER UTAH LAW, OGDEN IS ALSO A SECOND CLASS CITY AND THE
"TAKE OVER" PROVISION OF SEC 7-3-6, SUPRA, WAS THEREFORE APPLICABLE. 
TWO OTHER BANKS HAVE THEIR MAIN OFFICES IN OGDEN.  AFTER THE
COMPTROLLER APPROVED THE ISSUANCE OF THE CERTIFICATE, RESPONDENT FILED
SUIT IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF
COLUMBIA ASKING FOR INJUNCTIVE AND OTHER RELIEF.  THE DISTRICT COURT
IMPOSED ALL OF THE RESTRICTIONS OF SEC 7-3-6 OF UTAH LAW ON THE
ESTABLISHMENT OF NATIONAL BANKS AND THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT AFFIRMED, BY A JUDGMENT WITHOUT OPINION,
BUT CITED THE OPINION OF THE 10TH CIRCUIT, WALKER BANK & TRUST CO.,
SUPRA. 

2.  THE NATIONAL BANK ACT:  ITS BACKGROUND. 

THERE HAS LONG BEEN OPPOSITION TO THE EXERCISE OF FEDERAL POWER IN
THE BANKING FIELD.  INDEED, PRESIDENT JEFFERSON WAS OPPOSED TO THE
CREATION OF THE FIRST BANK OF THE UNITED STATES AND PRESIDENT JACKSON
VETOED THE ACT OF CONGRESS EXTENDING THE CHARTER OF THE SECOND BANK OF
THE UNITED STATES.  HOWEVER, THE AUTHORITY OF CONGRESS TO ACT IN THE
FIELD WAS RESOLVED IN THE LANDMARK CASE OF MCCULLOCH V. MARYLAND, 4
WHEAT.  316 (1819).  THERE CHIEF JUSTICE MARSHALL, WHILE ADMITTING THAT
IT DOES NOT APPEAR THAT A BANK WAS IN THE CONTEMPLATION OF THE FRAMERS
OF THE CONSTITUTION, HELD THAT A NATIONAL BANK COULD BE CHARTERED UNDER
THE IMPLIED POWERS OF THE CONGRESS AS AN INSTRUMENTALITY OF THE FEDERAL
GOVERNMENT TO IMPLEMENT ITS FISCAL POWERS.  THE PARAMOUNT POWER OF THE
CONGRESS OVER NATIONAL BANKS HAS, THEREFORE, BEEN SETTLED FOR ALMOST A
CENTURY AND A HALF. 

NEVERTHELESS, NO NATIONAL BANKING ACT WAS ADOPTED UNTIL 1863 (12
STAT. 665), AND IT WAS NOT UNTIL 1927 THAT CONGRESS DEALT WITH THE
PROBLEM BEFORE US IN THESE CASES.  THIS INACTION WAS POSSIBLY DUE TO
THE FACT THAT AT THE TURN OF THE CENTURY, THERE WERE VERY FEW BRANCH
BANKS IN THE COUNTRY.  AT THAT TIME ONLY FIVE NATIONAL AND 82 STATE
BANKS WERE OPERATING BRANCHES WITH A TOTAL OF 119 BRANCHES.  BY THE END
OF 1923, HOWEVER, THERE WERE 91 NATIONAL AND 580 STATE BANKS WITH A
TOTAL OF 2,054 BRANCHES.  (FN3)  THE COMPTROLLER OF THE CURRENCY, IN
HIS ANNUAL REPORT OF 1923, RECOMMENDED CONGRESSIONAL ACTION ON BRANCH
BANKING.  THE REPORT STATED THAT IF STATE BANKS CONTINUE TO ENGAGE "IN
UNLIMITED BRANCH BANKING IT WILL MEAN THE EVENTUAL DESTRUCTION OF THE
NATIONAL BANKING SYSTEM ...  ."  H.R. DOC. NO. 90, 68TH CONG., 1ST
SESS., 6 (1924).  SOON THEREAFTER LEGISLATION WAS INTRODUCED TO
EQUALIZE NATIONAL AND STATE BRANCH BANKING.  THE HOUSE REPORT ON THE
MEASURE, H.R. REP. NO. 83, 69TH CONG., 1ST SESS., 7 (1926), STATED
AMONG OTHER THINGS: 

"THE BILL RECOGNIZES THE ABSOLUTE NECESSITY OF TAKING LEGISLATIVE
ACTION WITH REFERENCE TO THE BRANCH BANKING CONTROVERSY.  THE PRESENT
SITUATION IS INTOLERABLE TO THE NATIONAL BANKING SYSTEM.  THE BILL
PROPOSES THE ONLY PRACTICABLE SOLUTION BY STOPPING THE FURTHER
EXTENSION OF STATE-WIDE BRANCH BANKING IN THE FEDERAL RESERVE SYSTEM BY
STATE MEMBER BANKS AND BY PERMITTING NATIONAL BANKS TO HAVE BRANCHES IN
THOSE CITIES WHERE STATE BANKS ARE ALLOWED TO HAVE THEM UNDER STATE
LAWS." 

THIS BILL FAILED TO PASS IN THE SENATE AND, ALTHOUGH CONGRESS
CONTINUED TO STUDY THE PROBLEM, IT WAS NOT UNTIL 1927 THAT THE MCFADDEN
ACT WAS ADOPTED.  THE BILL ORIGINATED IN THE HOUSE AND, IN SUBSTANCE,
PROPOSED THAT BOTH NATIONAL AND STATE BANKS BE PERMITTED TO ESTABLISH
"INSIDE" BRANCHES WITHIN THE MUNICIPALITY OF THEIR MAIN BANKING
FACILITIES IN THOSE STATES THAT PERMITTED BRANCH BANKING AT THE TIME OF
THE ENACTMENT OF THE BILL.  H.R. REP. NO. 83, 69TH CONG., 1ST SESS., 4
5 (1926).  THE INTENT OF THE CONGRESS TO LEAVE THE QUESTION OF THE
DESIRABILITY OF BRANCH BANKING UP TO THE STATES IS INDICATED BY THE
FACT THAT THE SENATE STRUCK FROM THE HOUSE BILL THE TIME LIMITATIONS,
THUS PERMITTING A SUBSEQUENT CHANGE IN STATE LAW TO HAVE A
CORRESPONDING EFFECT ON THE AUTHORITY OF NATIONAL BANKS TO ENGAGE IN
BRANCHING.  THE SENATE REPORT CONCLUDED THAT THE ACT SHOULD PERMIT
"NATIONAL BANKS TO HAVE BRANCHES IN THOSE CITIES WHERE STATE BANKS ARE
ALLOWED TO HAVE THEM UNDER STATE LAWS."  S. REP. NO. 473, 69TH CONG.,
1ST SESS., 14 (1926).  IN THE SUBSEQUENT CONFERENCE COMMITTEE, THE
SENATE POSITION WAS ADOPTED.  STATE BANKS WHICH WERE MEMBERS OF THE
FEDERAL RESERVE SYSTEM WERE ALSO LIMITED TO "INSIDE" BRANCHES.  A
GRANDFATHER CLAUSE PERMITTED RETENTION OF BRANCHES OPERATED AT THE DATE
OF ENACTMENT.  H.R. REP. NO. 1481, 69TH CONG., 1ST SESS., 6 (1926). 
THE ACT WAS FINALLY PASSED ON FEBRUARY 25, 1927, AND BECAME KNOWN AS
THE MCFADDEN ACT OF 1927, TAKING ITS NAME FROM ITS SPONSOR. 
REPRESENTATIVE MCFADDEN.  AT THE TIME OF ITS ENACTMENT HE CHARACTERIZED
IT IN THIS LANGUAGE: 

"AS A RESULT OF THE PASSAGE OF THIS ACT, THE NATIONAL BANK ACT HAS
BEEN SO AMENDED THAT NATIONAL BANKS ARE ABLE TO MEET THE NEEDS OF
MODERN INDUSTRY AND COMMERCE AND COMPETITIVE EQUALITY HAS BEEN
ESTABLISHED AMONG ALL MEMBER BANKS OF THE FEDERAL RESERVE SYSTEM."  68
CONG.  REC. 5815 (1927). 

DURING THE ECONOMIC DEPRESSION THERE WAS MUCH AGITATION THAT BANK
FAILURES WERE DUE TO SMALL UNDERCAPITALIZED RURAL BANKS AND THAT THESE
BANKS SHOULD BE SUPPLANTED BY BRANCHES OF LARGER AND STRONGER BANKS. 
THE COMPTROLLER OF THE CURRENCY ADVOCATED THAT NATIONAL BANKS BE
PERMITTED TO BRANCH REGARDLESS OF STATE LAW.  HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON BANKING AND CURRENCY PURSUANT
TO S. RES. NO. 71, 71ST CONG., 3D SESS., 7-10 (1931).  SENATOR CARTER
GLASS HELD A SIMILAR BELIEF AND INTRODUCED A BILL THAT WOULD AUTHORIZE
NATIONAL BANKS TO ORGANIZE BRANCHES IRRESPECTIVE OF STATE LAW BEYOND
AND "OUTSIDE" THE MUNICIPALITY OF ITS PRINCIPAL BANKING HOUSE.  HIS
PROPOSAL WAS STRENUOUSLY OPPOSED AND WAS EVENTUALLY DEFEATED.  IT WAS
NOT UNTIL THE SEVENTY-THIRD CONGRESS THAT THE BANKING ACT OF 1933 WAS
ADOPTED.  SENATOR GLASS, THE RANKING MEMBER OF THE SENATE COMMITTEE ON
BANKING AND CURRENCY AND THE DOMINANT BANKING FIGURE IN THE CONGRESS,
WAS SPONSOR OF THE ACT.  IN REPORTING IT TO THE SENATE FOR PASSAGE, HE
SAID, THE ACT "REQUIRED THAT THE ESTABLISHMENT OF BRANCH BANKS BY
NATIONAL BANKS IN STATES WHICH BY LAW PERMIT BRANCH BANKING SHOULD BE
UNDER THE REGULATIONS REQUIRED BY STATE LAW OF STATE BANKS."  77 CONG.
REC. 3726 (1933).  IN A COLLOQUY ON THE FLOOR OF THE SENATE WITH
SENATOR COPELAND AS TO THE PURPOSE OF THE ACT (WITH REFERENCE TO BRANCH
BANKING BY NATIONAL BANKS), SENATOR GLASS SAID THAT IT WOULD BE
PERMISSIBLE "IN ONLY THOSE STATES THE LAWS OF WHICH PERMIT BRANCH
BANKING, AND ONLY TO THE EXTENT THAT THE STATE LAWS PERMIT BRANCH
BANKING."  MOREOVER, TO MAKE IT CRYSTAL CLEAR, WHEN SENATOR COPELAND
REPLIED THAT "IT PERMITS BRANCH BANKING ONLY IN THOSE STATES WHERE THE
STATE LAWS PERMIT BRANCH BANKING BY STATE BANKS," SENATOR GLASS WAS
CAREFUL TO REPEAT: "ONLY IN THOSE STATES AND TO THE EXTENT THAT THE
STATE LAWS PERMIT BRANCH BANKING."  76 CONG. REC. 2511 (1933).  REMARKS
OF OTHER MEMBERS OF CONGRESS ALSO INDICATE THAT THEY SHARED THE
UNDERSTANDING OF SENATOR GLASS.  FOR EXAMPLE, SENATOR VANDENBERG STATED
THAT SEC 36(C)(1) PROVIDES "THAT THE BRANCH-BANKING PRIVILEGE SO FAR AS
NATIONAL BANKS ARE CONCERNED SHALL FOLLOW THE STATUS ESTABLISHED BY
STATE LAW IN RESPECT TO THE STATE PRIVILEGE."  76 CONG. REC. 2262
(1933).  LIKEWISE, SENATOR LONG, WHO HAD JOINED A FILIBUSTER AGAINST AN
EARLIER VERSION OF THE BILL, STATED AT FINAL PASSAGE THAT "WE HAVE ONLY
UNDERTAKEN TO SECURE EQUAL TREATMENT FOR STATE BANKS" AND THAT THE BILL
HAD SUBSTANTIALLY ACHIEVED THAT RESULT.  77 CONG. REC. 5862 (1933).  IN
SIMILAR TONE, REPRESENTATIVE BACON STATED THAT BRANCHES OF NATIONAL
BANKS MAY BE ESTABLISHED PROVIDED "THIS IS PERMITTED BY THE LAWS OF
THAT STATE AND SUBJECT TO THEM."  77 CONG. REC. 3949 (1933).  AND
REPRESENTATIVE LUCE, A MEMBER OF THE CONFERENCE COMMITTEE, REPORTED TO
THE HOUSE: 

"IN THE CONTROVERSY OVER THE RESPECTIVE MERITS OF WHAT ARE KNOWN AS
'UNIT BANKING' AND 'BRANCH BANKING SYSTEMS,' A CONTROVERSY THAT HAS
BEEN ALIVE AND SHARP FOR YEARS, BRANCH BANKING HAS BEEN STEADILY
GAINING IN FAVOR.  IT IS NOT, HOWEVER, HERE PROPOSED TO GIVE THE
ADVOCATES OF BRANCH BANKING ANY ADVANTAGE.  WE DO NOT GO AN INCH BEYOND
SAYING THAT THE TWO IDEAS SHALL COMPETE ON EQUAL TERMS AND ONLY WHERE
THE STATES MAKE THE COMPETITION POSSIBLE BY LETTING THEIR OWN
INSTITUTIONS HAVE BRANCHES."  77 CONG. REC. 5896 (1933). 

AS FINALLY PASSED, THE ACT PERMITTED NATIONAL BANKS TO ESTABLISH
OUTSIDE BRANCHES IF SUCH BRANCHES COULD BE ESTABLISHED BY STATE BANKS
UNDER STATE LAW.  IT IS WELL TO NOTE THAT THE SAME ACT ALSO REMOVED THE
RESTRICTION ON OUTSIDE BRANCH BANKING BY STATE MEMBER BANKS PREVIOUSLY
IMPOSED BY THE MCFADDEN ACT.    3.  THE POLICY OF COMPETITIVE
EQUALITY. 

IT APPEARS CLEAR FROM THIS RESUME OF THE LEGISLATIVE HISTORY OF SEC
36(C)(1) AND (2) THAT CONGRESS INTENDED TO PLACE NATIONAL AND STATE
BANKS ON A BASIS OF "COMPETITIVE EQUALITY" INSOFAR AS BRANCH BANKING
WAS CONCERNED.  BOTH SPONSORS OF THE APPLICABLE BANKING ACTS,
REPRESENTATIVE MCFADDEN AND SENATOR GLASS, SO CHARACTERIZED THE
LEGISLATION.  IT IS NOT FOR US TO SO CONSTRUE THE ACTS AS TO FRUSTRATE
THIS CLEAR-CUT PURPOSE SO FORCEFULLY EXPRESSED BY BOTH FRIEND AND FOE
OF THE LEGISLATION AT THE TIME OF ITS ADOPTION.  TO US IT APPEARS
BEYOND QUESTION THAT THE CONGRESS WAS CONTINUING ITS POLICY OF
EQUALIZATION FIRST ADOPTED IN THE NATIONAL BANK ACT OF 1864.  SEE LEWIS
V. FIDELITY & DEPOSIT CO., 292 U.S. 559, 565-566 (1934); MCCLELLAN V.
CHIPMAN, 164 U.S. 347 (1896); CHASE SECURITIES CORP. V. HUSBAND, 302
U.S. 660 (1938); ANDERSON NAT. BANK V. LUCKETT, 321 U.S. 233 (1944). 

THE COMPTROLLER ARGUES THAT UTAH'S STATUTE "EXPRESSLY AUTHORIZES"
STATE BANKS TO HAVE BRANCHES IN THEIR HOME MUNICIPALITIES.  HE
MAINTAINS THAT THE RESTRICTION, IN THE SUBSEQUENT PARAGRAPH OF THE
STATUTE LIMITING BRANCHING SOLELY TO THE TAKING OVER OF AN EXISTING
BANK, IS NOT APPLICABLE TO NATIONAL BANKS.  IT IS A STRANGE ARGUMENT
THAT PERMITS ONE TO PICK AND CHOOSE WHAT PORTION OF THE LAW BINDS HIM. 
INDEED, IT WOULD FLY IN THE FACE OF THE LEGISLATIVE HISTORY NOT TO HOLD
THAT NATIONAL BRANCH BANKING IS LIMITED TO THOSE STATES THE LAWS OF
WHICH PERMIT IT, AND EVEN THERE "ONLY TO THE EXTENT THAT THE STATE LAWS
PERMIT BRANCH BANKING."  UTAH CLEARLY PERMITS IT "ONLY TO THE EXTENT"
THAT THE PROPOSED BRANCH TAKES OVER AN EXISTING BANK. 

THE COMPTROLLER ALSO CONTENDS THAT THE ACT SUPERSEDES STATE LAW ONLY
AS TO "WHETHER" AND "WHERE" BRANCHES MAY BE LOCATED AND NOT THE
"METHOD" BY WHICH THIS IS EFFECTED.  WE BELIEVE THAT WHERE A STATE
ALLOWS BRANCHING ONLY BY TAKING OVER AN EXISTING BANK, IT EXPRESSES AS
MUCH "WHETHER" AND "WHERE" A BRANCH MAY BE LOCATED AS DOES A
PROHIBITION OR A LIMITATION TO THE HOME OFFICE MUNICIPALITY.  AS TO THE
RESTRICTION BEING A "METHOD," WE HAVE CONCLUDED THAT SINCE IT IS PART
AND PARCEL OF UTAH'S POLICY, IT WAS ABSORBED BY THE PROVISIONS OF SECS
36(C)(1) AND (2), REGARDLESS OF THE TAG PLACED UPON IT.  AFFIRMED. 

FN1  THE NATIONAL BANK ACT, 44 STAT. 1228, 12 U.S.C. SECS 36(C)(1)
AND (2) PROVIDES: 

"(C) A NATIONAL BANKING ASSOCIATION MAY, WITH THE APPROVAL OF THE
COMPTROLLER OF THE CURRENCY, ESTABLISH AND OPERATE NEW BRANCHES: (1)
WITHIN THE LIMITS OF THE CITY, TOWN OR VILLAGE IN WHICH SAID
ASSOCIATION IS SITUATED, IF SUCH ESTABLISHMENT AND OPERATION ARE AT THE
TIME EXPRESSLY AUTHORIZED TO STATE BANKS BY THE LAW OF THE STATE IN
QUESTION; AND (2) AT ANY POINT WITHIN THE STATE IN WHICH SAID
ASSOCIATION IS SITUATED, IF SUCH ESTABLISHMENT AND OPERATION ARE AT THE
TIME AUTHORIZED TO STATE BANKS BY THE STATUTE LAW OF THE STATE IN
QUESTION BY LANGUAGE SPECIFICALLY GRANTING SUCH AUTHORITY AFFIRMATIVELY
AND NOT MERELY BY IMPLICATION OR RECOGNITION, AND SUBJECT TO THE
RESTRICTIONS AS TO LOCATION IMPOSED BY THE LAW OF THE STATE ON STATE
BANKS." 

FN2  UTAH CODE ANN., TIT. 7, C. 3, SEC 6 (1965 SUPP.), PROVIDES: 

"7-3-6. BUSINESS CONDUCTED AT BANKING HOUSE - BRANCHING OF OFFICES -
VIOLATION OF SECTION A MISDEMEANOR.  - THE BUSINESS OF EVERY BANK SHALL
BE CONDUCTED ONLY AT ITS BANKING HOUSE AND EVERY BANK SHALL RECEIVE
DEPOSITS AND PAY CHECKS ONLY AT ITS BANKING HOUSE EXCEPT AS HEREINAFTER
PROVIDED. 

     *         *         *         *         * 

"EXCEPT IN CITIES OF THE FIRST CLASS, OR WITHIN UNINCORPORATED AREAS
OF A COUNTY IN WHICH A CITY OF THE FIRST CLASS IS LOCATED, NO BRANCH
BANK SHALL BE ESTABLISHED IN ANY CITY OR TOWN IN WHICH IS LOCATED A
BANK OR BANKS, STATE OR NATIONAL, REGULARLY TRANSACTING A CUSTOMARY
BANKING BUSINESS, UNLESS THE BANK SEEKING TO ESTABLISH SUCH BRANCH
SHALL TAKE OVER AN EXISTING BANK.  NO UNIT BANK ORGANIZED AND OPERATING
AT A POINT WHERE THERE ARE OTHER OPERATING BANKS, STATE OR NATIONAL,
SHALL BE PERMITTED TO BE ACQUIRED BY ANOTHER BANK FOR THE PURPOSE OF
ESTABLISHING A BRANCH UNTIL SUCH BANK SHALL HAVE BEEN IN OPERATION AS
SUCH FOR A PERIOD OF FIVE YEARS." 

FN3  BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, BANKING
STUDIES 15, 428 (1941). 
..END :




UNITED STATES V. FABRIZIO 385 U.S. 263 


NO. 47.  ARGUED NOVEMBER 7, 1966.  - DECIDED DECEMBER 12, 1966.  -
REVERSED. 


APPELLEE WAS INDICTED FOR VIOLATING 18 U.S.C. SEC 1953 BY KNOWINGLY
CARRYING FROM NEW HAMPSHIRE TO NEW YORK 75 "ACKNOWLEDGMENTS OF
PURCHASE" FOR "USE" IN THE NEW HAMPSHIRE STATE SWEEPSTAKES.  A PURCHASE
ACKNOWLEDGMENT, A RECEIPT FOR THE BUYER'S RETENTION, IS PRACTICALLY A
CARBON COPY OF THE SWEEPSTAKES TICKET, WHICH IS RETAINED IN THE MACHINE
AT THE TIME OF PURCHASE.  SECTION 1953 PROSCRIBES THE CARRIAGE IN
INTERSTATE COMMERCE (EXCEPT BY A COMMON CARRIER) OF ANY RECORD, PAPER,
OR WRITING DESIGNED FOR USE IN A WAGERING POOL WITH RESPECT TO A
SPORTING EVENT.  THE STATUTE EXEMPTS PARIMUTUEL BETTING EQUIPMENT, THE
TRANSPORTATION OF BETTING MATERIALS FOR BETS OR SPORTING EVENTS INTO A
STATE WHERE SUCH BETTING IS LEGAL, OR THE TRANSPORTATION OF
NEWSPAPERS.  APPELLEE MOVED TO DISMISS THE INDICTMENT, CONTENDING THAT
SEC 1953 WAS INTENTED TO REACH ONLY ORGANIZED CRIME OR ILLEGAL GAMBLING
ACTIVITIES, NEITHER OF WHICH WAS ALLEGED; THAT THE NEW HAMPSHIRE STATE
LOTTERY WAS NOT AN "ILLEGAL" WAGERING POOL; AND THAT PURCHASE
ACKNOWLEDGMENTS WERE VALUELESS AND NOT FOR "USE" IN THE STATE
SWEEPSTAKES SINCE THEIR RETENTION WAS NOT NECESSARY TO COLLECT
WINNINGS.  FROM THE DISTRICT COURT'S DISMISSAL OF THE INDICTMENT AS
CHARGING ACTS NOT WITHIN THE PURVIEW OF SEC 1953, A DIRECT APPEAL WAS
TAKEN TO THIS COURT.  HELD:  THE INDICTMENT STATES AN OFFENSE UNDER 18
U.S.C. SEC. 1953.  PP. 266-271. 

(A)  CONGRESS MANIFESTED THE BROAD PURPOSE OF THWARTING THE
INTERSTATE MOVEMENT OF GAMBLING PARAPHERNALIA BY ALL PERSONS EXCEPT
COMMON CARRIERS.  PP. 266-267. 

(B)  THE EXEMPTIONS, WHICH ARE CONSISTENT WITH THE BROAD REACH OF THE
STATUTE, WOULD HAVE INCLUDED STATE-RUN WAGERING POOLS HAD CONGRESS SO
INTENDED.  PP. 268-269. 

(C)  BY RECEIPTING THE PURCHASE AND ASSURING THE TICKET OWNER OF
PROPER REGISTRATION, THE ACKNOWLEDGMENT SERVES A PURPOSE AND
CONSTITUTES "USE" IN THE SWEEPSTAKES WITHIN THE MEANING OF SEC 1953, AT
LEAST HERE WHERE THE GOVERNMENT CONTENDS THAT IT WILL PROVE THAT THE
ACKNOWLEDGMENTS SPECIFIED IN THE INDICTMENT WERE BEING DELIVERED BY
PETITIONER TO OUT-OF-STATE PERSONS WHO HAD BOUGHT TICKETS THROUGH HIM. 
PP. 269-271. 

UNITED STATES V. FABRIZIO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF NEW YORK. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

AN INDICTMENT FILED IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NEW YORK CHARGED APPELLEE, FABRIZIO, WITH KNOWINGLY
CARRYING "IN INTERSTATE COMMERCE FROM KEENE, STATE OF NEW HAMPSHIRE TO
ELMIRA, STATE OF NEW YORK,  ...  RECORDS, PAPERS AND WRITINGS, TO WIT:
75 ACKNOWLEDGMENTS OF PURCHASE FOR A SWEEPSTAKES RACE OF THE STATE OF
NEW HAMPSHIRE, TO BE USED, AND ADAPTED, DEVISED AND DESIGNED FOR USE,
IN A WAGERING POOL WITH RESPECT TO A SPORTING EVENT, THAT IS:  A
SWEEPSTAKE RACE OF THE STATE OF NEW HAMPSHIRE, AS HE THEN WELL KNEW;
ALL IN VIOLATION OF SECTION 1953 OF TITLE 18, U.S.C."  THAT SECTION
PROVIDES IN PERTINENT PART: 

"(A)  WHOEVER, EXCEPT A COMMON CARRIER IN THE USUAL COURSE OF ITS
BUSINESS, KNOWINGLY CARRIES OR SENDS IN INTERSTATE OR FOREIGN COMMERCE
ANY RECORD, PARAPHERNALIA, TICKET, CERTIFICATE, BILLS, SLIP, TOKEN,
PAPER, WRITING, OR OTHER DEVICE USED, OR TO BE USED, OR ADAPTED,
DEVISED, OR DESIGNED FOR USE IN (A) BOOKMAKING; OR (B) WAGERING POOLS
WITH RESPECT TO A SPORTING EVENT; OR (C) IN A NUMBERS, POLICY, BOLITA,
OR SIMILAR GAME SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED FOR
NOT MORE THAN FIVE YEARS OR BOTH. 

"(B)  THIS SECTION SHALL NOT APPLY TO (1) PARIMUTUEL BETTING
EQUIPMENT, PARIMUTUEL TICKETS WHERE LEGALLY ACQUIRED, OR PARIMUTUEL
MATERIALS USED OR DESIGNED FOR USE AT RACETRACKS OR OTHER SPORTING
EVENTS IN CONNECTION WITH WHICH BETTING IS LEGAL UNDER APPLICABLE STATE
LAW, OR (2) THE TRANSPORTATION OF BETTING MATERIALS TO BE USED IN THE
PLACING OF BETS OR WAGERS ON A SPORTING EVENT INTO A STATE IN WHICH
SUCH BETTING IS LEGAL UNDER THE STATUTES OF THAT STATE, OR (3) THE
CARRIAGE OR TRANSPORTATION IN INTERSTATE OR FOREIGN COMMERCE OF ANY
NEWSPAPER OR SIMILAR PUBLICATION." 

IN RESPONSE TO A LIMITED DEMAND FOR A BILL OF PARTICULARS THE
GOVERNMENT STATED THAT THE ONLY RECORDS, PAPERS, AND WRITINGS IN ISSUE
WERE THE SPECIFIED 75 ACKNOWLEDGMENTS, AND THAT NO VIOLATION OF STATE
LAW WAS CHARGED.  APPELLEE THEN MOVED TO DISMISS THE INDICTMENT ON THE
GROUND THAT IT DID "NOT SET FORTH FACTS SUFFICIENT TO CHARGE THE
DEFENDANT WITH THE VIOLATION OF" THIS STATUTE.  IN A SUPPORTING
AFFIDAVIT THREE SPECIFIC SHORTCOMINGS WERE CLAIMED.  APPELLEE FIRST
CONTENDED THAT SEC 1953 WAS INTENDED TO REACH ONLY THE ACTIVITIES OF
ORGANIZED CRIME OR THOSE PARTICIPATING IN AN ILLEGAL GAMBLING OR
LOTTERY ENTERPRISE.  ABSENT AN ALLEGATION THAT HE WAS OF THIS CLASS NO
CRIME UNDER THE STATUTE WAS CHARGED.  APPELLEE ALSO CONTENDED THAT THE
INDICTMENT WAS DEFICIENT UNDER THE STATUTE FOR FAILURE TO NAME AN
"ILLEGAL" WAGERING POOL, THE NEW HAMPSHIRE LOTTERY BEING A STATE
ENTERPRISE.  FINALLY, IT WAS URGED THAT THE ALLEGATION IN THE
INDICTMENT THAT THE ACKNOWLEDGMENTS WERE "TO BE USED, AND ADAPTED,
DEVISED AND DESIGNED FOR USE" IN THE NEW HAMPSHIRE SWEEPSTAKES WAS
IMPOSSIBLE IN FACT OR RESTED ON A MISINTERPRETATION OF "USE" SINCE THE
ACKNOWLEDGMENTS WERE VALUELESS, AND NEED NOT HAVE BEEN RETAINED IN
ORDER TO COLLECT ON THE SWEEPSTAKES. 

THE DISTRICT COURT THEREUPON DISMISSED THE INDICTMENT HOLDING THAT
"THE CHARGE IN THE INDICTMENT DOES NOT COME WITHIN THE PURPOSE OF
THE GOVERNMENT BROUGHT THE CASE DIRECTLY HERE UNDER THE PROVISIONS OF
THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC 3731.  WE NOTED PROBABLE
JURISDICTION, 383 U.S. 904.  OUR FUNCTION UNDER THAT ACT IS LIMITED TO
THE CONSTRUCTION OF THE STATUTE AND "THIS COURT IS NOT AT LIBERTY TO GO
BEYOND THE QUESTION OF THE CORRECTNESS OF THAT CONSTRUCTION AND
CONSIDER OTHER OBJECTIONS TO THE INDICTMENT.  THE GOVERNMENT'S APPEAL
DOES NOT OPEN THE WHOLE CASE."  UNITED STATES V. BORDEN CO., 308 U.S.
188, 193.  SEE ALSO UNITED STATES V. KEITEL, 211 U.S. 370.  (FN1)  FOR
REASONS TO FOLLOW, WE REVERSE. 

WE TURN TO THE SPECIFIC DEFICIENCIES ALLEGED BY APPELLEE, NOTING
FIRST THAT THE INDICTMENT TRACKS THE LANGUAGE OF SEC 1953 AND THUS
MAKES IT INCUMBENT UPON APPELLEE TO DEMONSTRATE THAT THE ADDITIONAL
ALLEGATIONS HE CLAIMS TO BE NECESSARY ARE REQUIRED TO FULFILL THE
STATUTORY PURPOSE.  WE MAY DISPOSE QUICKLY OF APPELLEE'S FIRST
CONTENTION.  THE LANGUAGE OF SEC 1953 MAKES IT APPLICABLE TO "WHOEVER,
EXCEPT A COMMON CARRIER  ...  " ENGAGES IN THE FORBIDDEN CONDUCT.  THE
NEED TO EXEMPT COMMON CARRIERS MAKES IT CLEAR THAT CONGRESS PAINTED
WITH A BROAD BRUSH, AND DID NOT LIMIT THE APPLICABILITY OF SEC 1953 IN
THE RESPECTS URGED BY APPELLEE.  IN COMPANION LEGISLATION WHERE
CONGRESS WISHED TO RESTRICT THE APPLICABILITY OF A PROVISION TO A GIVEN
SET OF INDIVIDUALS, IT DID SO WITH CLEAR LANGUAGE.  (FN2)  A STATUTE
LIMITED WITHOUT A CLEAR DEFINITION OF THE COVERED GROUP, AS WOULD BE
THE CASE WITH SEC 1953 UNDER APPELLEE'S VIEW OF IT, MIGHT RAISE SERIOUS
CONSTITUTIONAL PROBLEMS.  LANZETTA V. NEW JERSEY, 306 U.S. 451.  AND
THE ASSERTED RESTRICTION WOULD DEFEAT ONE OF THE PURPOSES OF THE
GAMBLING ACTIVITIES BUT ALSO AT MATERIALS ESSENTIAL TO THE CREATION OF
SUCH ACTIVITIES.  AS THE LEGISLATIVE HEARINGS MADE CLEAR, SUCH
MATERIALS ARE OFTEN LEGALLY FABRICATED AND TRANSPORTED BY PERSONS
ENGAGED IN LEGITIMATE BUSINESSES.  (FN3)  SINCE THE PURPOSE OF CONGRESS
WAS TO THWART THE INTERSTATE MOVEMENT OF SUCH PARAPHERNALIA, THE
ACCOMPLISHMENT OF THAT GOAL REQUIRED REACHING "WHOEVER" KNOWINGLY
CARRIED SUCH MATERIALS IN INTERSTATE COMMERCE.  (FN4) 

APPELLEE'S NEXT CONTENTION, EARNESTLY SUPPORTED BY THE STATE OF NEW
HAMPSHIRE AS AMICUS, IS BASED ON A SIMILAR READING OF THE LEGISLATIVE
INTENT.  APPELLEE EMPHASIZES THE CONGRESSIONAL DESIRE TO ATTACK
ORGANIZED CRIME, A PURPOSE NOT SERVED BY RESTRICTIONS ON THE
DISTRIBUTION OF NEW HAMPSHIRE SWEEPSTAKES MATERIALS.  APPELLEE ARGUES
THAT THE SPECIFIC EXEMPTION IN SEC 1953(B) OF CERTAIN LEGAL GAMBLING
ENTERPRISES FROM THE PROVISIONS OF SEC. 1953(A) AND THE LIMITATION OF
SEC. 1953(A) ITSELF TO THREE TYPES OF GAMBLING FAVORED BY ORGANIZED
CRIME REFLECT A CONGRESSIONAL POLICY OF RESPECTING THE INDIVIDUAL
GAMBLING POLICIES OF THE STATES AND THAT THESE EXEMPTIONS AND
LIMITATIONS ARE MERELY INDICATIVE OF THAT GENERAL POLICY.  THE NEW
HAMPSHIRE SWEEPSTAKES NOT BEING IN EXISTENCE WHEN SEC 1953 WAS PASSED
IS NECESSARILY EXEMPTED, SO IT IS SAID, BY POLICY RATHER THAN WORDING. 
THE GOVERNMENT, ON THE OTHER HAND, CONTENDS THAT THE SPECIFIC
EXCEPTIONS POINT UP THE BREADTH OF SEC. 1953(A) AND THE CONGRESSIONAL
DESIRE TO APPLY IT EXCEPT WHERE CONGRESS ITSELF HAD CAREFULLY EXAMINED
AND APPROVED EXEMPTION. 

WE FIND THE GOVERNMENT'S CONTENTION MORE IN KEEPING WITH THE LANGUAGE
AND PURPOSES OF THE ACT.  ALTHOUGH AT LEAST ONE STATE HAD LEGALIZED
GAMBLING ACTIVITIES AT THE TIME THE BILL WAS PASSED, AND THE CONGRESS
WAS CERTAINLY AWARE OF LEGAL SWEEPSTAKES RUN BY GOVERNMENTS IN OTHER
COUNTRIES, CONGRESS DID NOT LIMIT THE COVERAGE OF THE STATUTE TO
"UNLAWFUL" OR "ILLEGAL" ACTIVITIES.  THE SPONSORS OF THE BILL MADE IT
CLEAR THAT THE MEASURE AS DRAFTED WAS NOT SO LIMITED.  (FN5)  IN
PASSING 18 U.S.C. SEC 1084 AND 18 U.S.C. SEC 1952 AS COMPANION
PROVISIONS TO SEC 1953 CONGRESS EXEMPTED TRANSMISSION OF LEGAL GAMBLING
INFORMATION FROM THE FORMER AND LIMITED THE LATTER TO THOSE ENGAGED IN
"UNLAWFUL ACTIVITY."  THUS IT IS REASONABLE TO ASSUME THAT CONGRESS
WOULD HAVE GIVEN A SPECIFIC INDICATION OF EXEMPTION FOR STATE-RUN
WAGERING POOLS IF IT HAD DESIRED TO EXEMPT THEM. 

EXEMPTION WOULD ALSO DEFEAT ONE OF THE PRINCIPAL PURPOSES OF SEC
1953, AIDING THE STATES IN THE SUPPRESSION OF GAMBLING WHERE SUCH
GAMBLING IS CONTRARY TO STATE POLICY.  FOR EXAMPLE, NEW YORK PROHIBITS
THE SALE OF LOTTERY TICKETS AND THE TRANSFER OF ANY PAPER PURPORTING TO
REPRESENT AN INTEREST IN A LOTTERY "TO BE DRAWN WITHIN OR WITHOUT" THAT
STATE REGARDLESS OF THE LEGALITY OF THE LOTTERY IN THE PLACE OF
DRAWING.  N.Y. CONST., ART. I, SEC 9, N.Y. PENAL LAW SECS 1373, 1382. 
TO ALLOW THE PARAPHERNALIA OF A LOTTERY, STATE-OPERATED OR NOT, TO FLOW
FREELY INTO NEW YORK MIGHT SIGNIFICANTLY ENDANGER THAT POLICY.  IT IS
CLEAR THAT THE LOTTERY STATUTES APPLY TO STATE-OPERATED AS WELL AS
ILLEGAL LOTTERIES, AND THAT SEC 1953 WAS INTRODUCED TO STRENGTHEN THOSE
STATUTES BY CLOSING THE LOOPHOLES PLACED IN THEM BY THE NARROW
INTERPRETATION OF INCLUDED MATERIALS BY THIS COURT IN FRANCE V. UNITED
STATES, 164 U.S. 676, AND FRANCIS V. UNITED STATES, 188 U.S. 37.  (FN6)
IT WOULD BE ANOMALOUS TO HOLD THAT WHERE CONGRESS MEANT TO BAR THE
LOTTERY TICKETS THEMSELVES FROM INTERSTATE COMMERCE IT WOULD ALLOW THE
FREE CIRCULATION OF OTHER PARAPHERNALIA OF THE LOTTERY. 

APPELLEE'S FINAL CONTENTION RAISES A MORE TROUBLESOME PROBLEM UNDER
THE CRIMINAL APPEALS ACT UNDER WHICH THIS CASE IS HERE.  THE INDICTMENT
ALLEGES THE KNOWING INTERSTATE CARRIAGE OF "RECORDS, PAPERS AND
WRITINGS" AND THAT THESE ARE "TO BE USED, AND ADAPTED, DEVISED AND
DESIGNED FOR USE" IN A FORBIDDEN ACTIVITY.  THE GOVERNMENT CONTENDS
THAT THE QUESTION WHETHER AN ACKNOWLEDGMENT CAN BE, AND WAS, SO USED IS
ONE OF FACT FOR THE TRIAL AND NOT PRESENTLY BEFORE THIS COURT.  IN
UNITED STATES V. WIESENFELD WAREHOUSE CO., 376 U.S. 86, 91-92, THE
COURT DEALT WITH A DEFENDANT'S CLAIM THAT A STATUTE WAS NOT APPLICABLE
TO HIM BECAUSE OF HIS PECULIAR SITUATION BY STATING: 

"WHATEVER THE TRUTH OF THIS CLAIM, IT INVOLVES FACTUAL PROOF TO BE
RAISED DEFENSIVELY AT A TRIAL ON THE MERITS.  WE ARE HERE CONCERNED
ONLY WITH THE CONSTRUCTION OF THE STATUTE AS IT RELATES TO THE
SUFFICIENCY OF THE INFORMATION, AND NOT WITH THE SCOPE AND REACH OF THE
STATUTE AS APPLIED TO SUCH FACTS AS MAY BE DEVELOPED BY EVIDENCE
ADDUCED AT A TRIAL." 

HERE, ALSO, WE MIGHT JUSTIFIABLY REFUSE TO CONSIDER APPELLEE'S
CONTENTION.  HOWEVER, THE OPERATION OF THE NEW HAMPSHIRE SWEEPSTAKES,
WHILE A MATTER OF FACT, IS NOT A DISPUTED ISSUE AND A VALID QUESTION IS
RAISED AS TO THE CONSTRUCTION OF THE USE REQUIREMENT IN SEC 1953.  THUS
THIS CASE MAY BE CONSIDERED SIMILAR TO UNITED STATES V. HVASS, 355 U.S.
570, WHERE IN AN APPEAL UNDER THE CRIMINAL APPEALS ACT THIS COURT
DETERMINED THE QUESTION WHETHER A DISTRICT COURT RULE WAS A "LAW OF THE
UNITED STATES" FOR THE PURPOSES OF THE PERJURY STATUTE.  THUS WE MAY
INQUIRE WHETHER AN ACKNOWLEDGMENT OF PURCHASE CAN, AFTER ISSUANCE, HAVE
A USE IN THE NEW HAMPSHIRE SWEEPSTAKES. 

NEW HAMPSHIRE SWEEPSTAKES TICKETS ARE SOLD BY A SPECIAL MACHINE.  THE
CUSTOMER WRITES A NAME AND ADDRESS ON EACH TICKET AND IS NOT RESTRICTED
TO PURCHASING FOR HIMSELF.  (FN7)  THE OWNER OF A TICKET MAY BE AN
INDIVIDUAL WHO HAS NOT COME TO NEW HAMPSHIRE TO MAKE THE PURCHASE.  THE
COMPLETED TICKET IS HELD IN STORAGE IN THE MACHINE AND EVENTUALLY USED
IN THE DRAWING.  THE ACKNOWLEDGMENT, PRACTICALLY A CARBON COPY OF THE
TICKET, IS EJECTED FROM THE MACHINE.  IT NEED NOT BE RETAINED TO
COLLECT A PRIZE SINCE ALL PRIZES ARE PAID DIRECTLY TO THE PERSON NAMED
ON THE TICKET, AND THUS APPELLEE CLAIMS IT HAS NO USE IN THE
SWEEPSTAKES.  BUT COMMON SENSE AND ORDINARY EXPERIENCE NEGATIVE SUCH A
FORMALISTIC CONCLUSION.  THE ACKNOWLEDGMENT SERVES A SIGNIFICANT
PSYCHOLOGICAL PURPOSE BY RECEIPTING THE PURCHASE AND ASSURING THE OWNER
THAT HIS TICKET IS PROPERLY REGISTERED.  BEFORE THIS FUNCTION IS
FULFILLED BY DELIVERY OF THE ACKNOWLEDGMENT TO THE OWNER OF THE TICKET
THE ACKNOWLEDGMENT REMAINS A RECORD, PAPER OR WRITING "TO BE USED" IN
THE SWEEPSTAKES.  (FN8)  THE GOVERNMENT CONTENDS THAT IT WILL PROVE
THAT THE ACKNOWLEDGMENTS SPECIFIED IN THIS INDICTMENT WERE IN FACT
BEING DELIVERED TO OUT-OF-STATE TICKET OWNERS WHO HAD NOT THEMSELVES
PURCHASED THEIR TICKETS IN NEW HAMPSHIRE BUT HAD DONE SO THROUGH
FABRIZIO AND WERE THUS ASSURED OF THE PROPER COMPLETION OF THEIR
PURCHASES.  WE THINK IT SUFFICIENT TO HOLD THAT SUCH A STATE OF FACTS
IS COMPREHENDED BY THIS INDICTMENT AND WITHIN THE TERMS OF 18 U.S.C.
SEC 1953.  THE CONSTITUTIONAL POWER OF CONGRESS TO ENACT THE STATUTE AS
WE HAVE CONSTRUED IT IS NOT QUESTIONED BY APPELLEE. 

THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF NEW YORK IS REVERSED AND THE CASE REMANDED TO THAT COURT
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  THUS THE SUFFICIENCY OF THE INDICTMENT AS A PLEADING IS NOT AT
ISSUE, UNITED STATES V. GILLILAND, 312 U.S. 86, NOR ARE QUESTIONS
RELATING TO THE BILL OF PARTICULARS PRESENTLY BEFORE US. SEE UNITED
STATES V. COMYNS, 248 U.S. 349, 353.  OF COURSE ON REMAND THESE
QUESTIONS WILL REMAIN UNAFFECTED BY ANYTHING DECIDED TODAY. 

FN2  THUS 18 U.S.C. SEC 1084 IS LIMITED TO PERSONS "BEING ENGAGED IN
THE BUSINESS OF BETTING OR WAGERING." 

FN3  SEE HEARINGS ON H.R. 468 BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 87TH CONG., 1ST SESS., P. 261 (TESTIMONY OF
MR. STINSON FOR AMERICAN TOTALISATOR CO.); HEARINGS ON S. 1653 BEFORE
THE SENATE COMMITTEE ON THE JUDICIARY, 87TH CONG., 1ST SESS., PP. 20
(TESTIMONY OF MR. JACOBS FOR JENNINGS & CO.), 25 (TESTIMONY OF MR.
NELSON FOR BALLY MANUFACTURING CO.).    FN4  SEE, E.G., HEARINGS ON
H.R. 468, SUPRA, N. 3, AT 26, WHERE THE ATTORNEY GENERAL MADE CLEAR
THAT THE PRIMARY PURPOSE OF THE BILL WAS TO ASSIST LOCAL ENFORCEMENT OF
LAWS, PERTAINING TO GAMBLING AND LIKE OFFENSES; S. REP. NO. 589, 87TH
CONG., 1ST SESS., P. 2, SPECIFIED THAT THE PROHIBITION OF THE BILL WAS
"ON THE TRANSPORTATION OF WAGERING PARAPHERNALIA" AND WOULD, WITHOUT
AMENDMENT, HAVE COMPREHENDED THE SHIPMENT OF PARIMUTUEL EQUIPMENT BY
LEGITIMATE BUSINESS CONCERNS. 

FN5  DURING THE SENATE HEARINGS ASSISTANT ATTORNEY GENERAL MILLER,
REPRESENTING THE DEPARTMENT OF JUSTICE, WAS SPECIFICALLY ASKED WHETHER
THE BILL WAS INTENDED ONLY TO APPLY TO "ILLEGAL" ACTIVITIES UNDER STATE
LAW.  HE UNEQUIVOCALLY REPLIED:  "NO SIR.  THAT PROVISO IS NOT IN
HERE.  IT WAS THE POSITION OF THE DEPARTMENT THAT THESE TYPES OF
PARAPHERNALIA, RECORDS, AND OTHER DEVICES SHOULD BE BARRED FROM
INTERSTATE COMMERCE."  HEARINGS ON S. 1653, SUPRA, NOTE 3, P. 294. 
BEFORE THE HOUSE COMMITTEE STUDYING THE BILL MR. MILLER WAS EQUALLY
EXPLICIT.  HE NOTED THAT THE IRISH SWEEPSTAKES WOULD BE COVERED BY THE
BILL AND SOON AFTER DECLARED THAT CONGRESS MIGHT CONSIDER A SPECIAL
EXEMPTION FOR PARIMUTUEL MATERIALS SINCE THESE AROSE IN ACTIVITIES
LEGAL UNDER STATE LAW.  HEARINGS ON H.R. 468, SUPRA, N. 3, 352. 

FN6  SEE H.R. REP. NO. 968, 87TH CONG., 1ST SESS., PP. 2-3; 107 CONG.
REC. 13902 (REMARKS OF SENATOR EASTLAND). 

FN7  NEW HAMPSHIRE SWEEPSTAKES COMMISSION, NEW HAMPSHIRE SWEEPSTAKES
PROGRAM 5-8. 

FN8  SEE THE COLLOQUY BETWEEN ASSISTANT ATTORNEY GENERAL MILLER AND
SENATORS KEATING AND KEFAUVER REPORTED AT 293-294 OF SENATE HEARINGS ON
S. 1653, SUPRA, N. 3.  THERE MR. MILLER DISTINGUISHED BETWEEN
PARAPHERNALIA WHICH HAD SERVED AND EXHAUSTED ITS USE, E.G. LOSING
TICKETS ON A HORSE RACE, AND PARAPHERNALIA WHOSE FUNCTION WAS NOT YET
EXHAUSTED. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE FORTAS JOINS, DISSENTING. 

FOR ME, THE KEY ISSUE IN THIS CASE IS WHETHER THE ACKNOWLEDGMENTS OF
PURCHASE THAT THE APPELLEE CARRIED FROM NEW HAMPSHIRE TO NEW YORK COME
WITHIN THE PROHIBITION BY 18 U.S.C. SEC 1953(A) OF INTERSTATE CARRIAGE
OF "ANY RECORD, PARAPHERNALIA, TICKET, CERTIFICATE, BILLS, SLIP, TOKEN,
PAPER, WRITING, OR OTHER DEVISE USED, OR TO BE USED, OR ADAPTED,
DEVISED, OR DESIGNED FOR USE IN  ... WAGERING POOLS WITH RESPECT TO A
SPORTING EVENT  ...  ."  IN THE OPERATION OF NEW HAMPSHIRE'S
SWEEPSTAKES, TICKETS ARE SOLD THROUGH SPECIAL MACHINES, AND ARE
RETAINED BY THE MACHINES AFTER THE PURCHASER FILLS IN A FORM PROVIDED
FOR HIS NAME AND ADDRESS.  AFTER THE TICKETS ARE DRAWN, WINNERS ARE
NOTIFIED BY TELEGRAM.  THE MACHINES ALSO PROVIDE THE PURCHASER WITH AN
ACKNOWLEDGMENT OF PURCHASE, WHICH IS MERELY A RECORD OF THE PURCHASE
TRANSACTION.  IN ORDER TO BE ELIGIBLE FOR AND TO RECEIVE A PRIZE, THE
PURCHASER OF A TICKET NEED NOT RETAIN OR PRESENT THIS PURCHASE
ACKNOWLEDGMENT. 

THE GOVERNMENT DOES NOT CONTEND THAT FEDERAL LAW MAKES IT A CRIME FOR
A PERSON FROM ANOTHER STATE TO VISIT NEW HAMPSHIRE, PURCHASE A
SWEEPSTAKES TICKET THERE, AND RETURN TO HIS HOME.  BUT IT HAS ARGUED
THAT IF A VISITOR TO NEW HAMPSHIRE RETURNS HOME WITH A RECEIPT THAT
MERELY ACKNOWLEDGES HIS PERSONAL PURCHASE AND IN NO WAY AFFECTS HIS
ELIGIBILITY TO RECEIVE A PRIZE, HE HAS COMMITTED A CRIME PUNISHABLE BY
IMPRISONMENT OF UP TO FIVE YEARS.  (FN1)  THUS THE GOVERNMENT REQUIRES
US TO ASSUME THAT CONGRESS HAS BRANDED AS FELONS MANY OR MOST OF THE
THOUSANDS OF VISITORS TO NEW HAMPSHIRE WHO HAVE PURCHASED SWEEPSTAKES
TICKETS THERE.  I DO NOT BELIEVE THAT CONGRESS INTENDED SUCH AN
UNEXPECTED RESULT, WHICH ONLY THE MOST ABJECTLY LITERAL APPROACH TO
STATUTORY INTERPRETATION COULD TOLERATE.  NO PLAUSIBLE LEGISLATIVE
PURPOSE WOULD BE SERVED BY THE GOVERNMENT'S CONSTRUCTION, FOR WHEN AN
INDIVIDUAL TAKES AN ACKNOWLEDGMENT OF PURCHASE HOME FROM NEW HAMPSHIRE,
MERELY RETAINING IT AS A PERSONAL RECORD OF HIS PURCHASE, THE ANTI
GAMBLING POLICIES OF OTHER STATES ARE IN NO WAY UNDERMINED, AND NO
OPENING IS PROVIDED FOR THE GROWTH OF ORGANIZED RACKETEERING. 

THE COURT APPARENTLY SHARES MY CONCERN WITH THE OVERBROAD REACH OF
SOME OF THE GOVERNMENT'S CONTENTIONS.  FOR THE COURT'S OPINION STRESSES
THAT THE GOVERNMENT HAS INFORMED THIS COURT THAT IN ITS PROOF AT TRIAL
IT EXPECTS TO SHOW THAT THE APPELLEE CARRIED ACKNOWLEDGMENTS OF
PURCHASE TO NEW YORK, NOT TO RETAIN THEM AS PERSONAL RECORDS OF HIS OWN
PURCHASES, BUT TO DELIVER THEM TO OTHER PEOPLE IN NEW YORK ON WHOSE
BEHALF THE APPELLEE PURCHASED TICKETS IN NEW HAMPSHIRE.  THE COURT
CONCLUDES:  "WE THINK IT SUFFICIENT TO HOLD THAT SUCH A STATE OF FACTS
IS COMPREHENDED BY THIS INDICTMENT AND WITHIN THE TERMS OF 18 U.S.C.
SEC 1953."  ANTE, AT 271.  I AGREE THAT IF THE APPELLEE HAD BEEN
CHARGED WITH CONDUCTING AN INTERSTATE SCHEME FOR SALE OF SWEEPSTAKES
TICKETS AND THE PROOF SUBSTANTIATED THE CHARGE, HE COULD BE VALIDLY
CONVICTED UNDER SEC 1953.  IN SUCH A CASE, THE ACKNOWLEDGMENTS OF
PURCHASE WOULD BE "USED, OR ADAPTED  ...  FOR USE IN  ...  WAGERING
POOLS WITH RESPECT TO A SPORTING EVENT  ...  " BECAUSE THEY WOULD SERVE
THE ESSENTIAL ROLE OF PROVIDING THE ULTIMATE PURCHASERS WITH A CLAIM
AGAINST THE AGENT WHO HAD PURCHASED TICKETS IN NEW HAMPSHIRE ON THEIR
BEHALF.  THE OPERATION OF SUCH A SCHEME WOULD HAVE THE EFFECT OF
EXTENDING SWEEPSTAKES SALES ACROSS STATE LINES, WOULD UNDERMINE THE
ANTI-GAMBLING POLICIES OF OTHER STATES, AND MIGHT PROVIDE FERTILE
OPPORTUNITIES FOR RACKETEERS.  (FN2) 

HOWEVER, I MUST EMPHATICALLY DISAGREE WITH THE COURT'S CONCLUSION
THAT "SUCH A STATE OF FACTS IS COMPREHENDED BY THIS INDICTMENT  ...
."  THE INDICTMENT MERELY CHARGED THE APPELLEE WITH INTERSTATE
TRANSPORT OF "ACKNOWLEDGMENTS OF PURCHASE FOR A SWEEPSTAKES RACE OF THE
STATE OF NEW HAMPSHIRE" AND RECITED THE LANGUAGE OF SEC 1953.  (FN3)
THE GOVERNMENT ALSO FURNISHED A BILL OF PARTICULARS THAT, INSOFAR AS
RELEVANT, SIMPLY REITERATED THE BARE CHARGE THAT THE APPELLEE HAD
CARRIED ACKNOWLEDGMENTS OF PURCHASE ACROSS STATE LINES.  (FN4)  THESE
CHARGES WERE CONSONANT WITH THE GOVERNMENT'S BROAD THEORY THAT ALL
INTERSTATE CARRIAGE OF ACKNOWLEDGMENTS OF PURCHASE IS PROHIBITED, EVEN
IF THE ACKNOWLEDGMENT IS RETAINED SOLELY AS A PERSONAL RECORD OF THE
CARRIER'S OWN PURCHASE.  THAT INTERPRETATION OF THE STATUTE, ALONG WITH
THE INDICTMENT THAT EMBODIED IT, WAS PROPERLY REJECTED BY THE TRIAL
COURT. 

AS THE COURT APPEARS TO CONCEDE, ALTHOUGH THE LANGUAGE OF ITS OPINION
IS NOT ALTOGETHER CLEAR, THE APPELLEE COULD BE VALIDLY CONVICTED ONLY
IF HE WERE SHOWN TO HAVE PARTICIPATED IN AN INTERSTATE SCHEME FOR
SELLING SWEEPSTAKES CHANCES TO PERSONS OUTSIDE NEW HAMPSHIRE.  BUT NO
HINT THAT THE APPELLEE WAS BEING CHARGED WITH SUCH ACTIVITIES APPEARS
IN THE INDICTMENT OR BILL OF PARTICULARS.  THE CHARGES HERE FELL FAR
SHORT OF THE ESTABLISHED REQUIREMENT THAT AN INDICTMENT MUST SPECIFY
THE ELEMENTS OF THE OFFENSE INTENDED TO BE CHARGED AND APPRISE THE
DEFENDANT OF THE CASE THAT HE MUST BE PREPARED TO MEET.  SEE RUSSELL V.
UNITED STATES, 369 U.S. 749, 760-772, AND THE CASES DISCUSSED THEREIN. 
AND THE GOVERNMENT IS NOT ENTITLED TO ENLARGE THE INDICTMENT NOW BY
REVAMPING THE WHOLE THEORY OF THE PROSECTUION AND MAKING NEW AND
ADDITIONAL CHARGES AGAINST THE APPELLEE FOR THE FIRST TIME IN THE
COURSE OF PROCEEDINGS BEFORE THIS COURT.  THIS COURT CANNOT REMEDY THE
DEFICIENCIES IN THE INDICTMENT BY RETROACTIVELY READING THE
GOVERNMENT'S NEW CHARGES INTO IT. 

WE LONG AGO REJECTED THE NOTION THAT "IT LIES WITHIN THE PROVINCE OF
A COURT TO CHANGE THE CHARGING PART OF AN INDICTMENT TO SUIT ITS OWN
NOTIONS OF WHAT IT OUGHT TO HAVE BEEN, OR WHAT THE GRAND JURY WOULD
PROBABLY HAVE MADE IT IF THEIR ATTENTION HAD BEEN CALLED TO SUGGESTED
CHANGES  ... ."  EX PARTE BAIN, 121 U.S. 1, 10.  SEE STIRONE V. UNITED
STATES, 361 U.S. 212; RUSSELL V. UNITED STATES, 369 U.S. 749, 770-771. 
AS THE COURT IN BAIN OBSERVED, "ANY OTHER DOCTRINE WOULD PLACE THE
RIGHTS OF THE CITIZEN ...  AT THE MERCY OR CONTROL OF THE COURT OR
PROSECUTING ATTORNEY  ...  ."  121 U.S., AT 13.  THE COURT'S OPINION
TODAY IGNORES THESE ESTABLISHED PRINCIPLES, AND ALLOWS THE APPELLEE TO
BE TRIED FOR A CRIME THAT HE WAS NOT CHARGED WITH COMMITTING. 

FOR THESE REASONS, I RESPECTFULLY DISSENT. 

FN1  18 U.S.C. SEC. 1953(A) PROVIDES THAT THOSE WHO ARE CONVICTED OF
A VIOLATION OF THE SECTION "SHALL BE FINED NOT MORE THAN $10,000 OR
IMPRISONED FOR NOT MORE THAN FIVE YEARS OR BOTH." 

FN2  NEW HAMPSHIRE HAS ENACTED LEGISLATION, N.H. REV. STAT. ANN. SEC
284:21-O, DESIGNED TO DETER THOSE WHO SEEK TO PROFIT FROM SUCH A
SCHEME: 

"PURCHASE OF TICKETS FOR A FEE PROHIBITED.  NO PERSON SHALL ENGAGE IN
THE BUSINESS OF PURCHASING OR OFFERING TO PURCHASE A SWEEPSTAKES TICKET
OR TICKETS FOR, IN BEHALF OF, OR IN THE NAME OF ANOTHER FOR A FEE OR
SERVICE CHARGE WHICH SHALL MAKE THE ULTIMATE COST OF SUCH TICKET OR
TICKETS TO THE REGISTERED OWNER THEREOF GREATER THAN THE LEGAL PRICE OF
SUCH TICKET OR TICKETS AS ESTABLISHED BY THE SWEEPSTAKES COMMISSION
UNDER THE AUTHORITY OF THIS SUBDIVISION.  WHOEVER VIOLATES THE
PROVISIONS OF THIS SECTION SHALL BE FINED NOT MORE THAN FIVE HUNDRED
DOLLARS, OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 

FN3  THE INDICTMENT RECITES, IN FULL: THE GRAND JURY CHARGES: THAT ON
OR ABOUT THE 24TH DAY OF AUGUST, 1964, ANTHONY L. FABRIZIO, KNOWINGLY
DID CARRY IN INTERSTATE COMMERCE FROM KEENE, STATE OF NEW HAMPSHIRE TO
ELMIRA, STATE OF NEW YORK, IN THE WESTERN DISTRICT OF NEW YORK,
RECORDS, PAPERS AND WRITINGS, TO WIT: 75 ACKNOWLEDGEMENTS OF PURCHASE
FOR A SWEEPSTAKES RACE OF THE STATE OF NEW HAMPSHIRE, TO BE USED, AND
ADOPTED, DEVISED AND DESIGNED FOR USE, IN A WAGERING POOL WITH RESPECT
TO A SPORTING EVENT, THAT IS: A SWEEPSTAKE RACE OF THE STATE OF NEW
HAMPSHIRE, AS HE THEN WELL KNEW; ALL IN VIOLATION OF SECTION 1953 OF
TITLE 18, U.S.C." 

FN4  IN RESPONSE TO THE APPELLEE'S CONTENTION THAT THE INDICTMENT
FAILED TO STATE AN OFFENSE, THE GOVERNMENT'S BILL OF PARTICULARS
STATED:  "IT IS CLAIMED BY THE UNITED STATES THAT DEFENDANT KNOWINGLY
CARRIED IN INTERSTATE COMMERCE IN VIOLATION OF SEC 1953, T. 18, U.S.C.
75 WRITTEN ACKNOWLEDGEMENTS OF PURCHASE OF STATE OF NEW HAMPSHIRE FIRST
SWEEPSTAKES RACE OF SEPTEMBER, 1964." 
..END :












WOODBY V. IMMIGRATION SERVICE 385 U.S. 276 


NO. 40.  ARGUED NOVEMBER 17, 1966.  - DECIDED DECEMBER 12, 1966.* - NO.
40, 370 F.2D 989, AND NO. 80, 350 F.2D 894, 901, JUDGMENTS SET ASIDE
AND REMANDED. 

*TOGETHER WITH NO. 80, SHERMAN V. IMMIGRATION AND NATURALIZATION
SERVICE, ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, ARGUED ON NOVEMBER 16-17, 1966. 


IN NO. 80, THE COURT OF APPEALS FOR THE SECOND CIRCUIT, ORIGINALLY SET
ASIDE A DEPORTATION ORDER AGAINST PETITIONER ON THE GROUND THAT THE
GOVERNMENT HAS THE BURDEN OF PROVING THE FACTS SUPPORTING DEPORTABILITY
BEYOND A REASONABLE DOUBT, BUT THEN REVERSED ITSELF AND HELD THAT THE
GOVERNMENT NEED ONLY PROVE ITS CASE WITH REASONABLE, SUBSTANTIAL, AND
PROBATIVE EVIDENCE.  IN NO. 40, THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT DID NOT EXPLICITLY DEAL WITH THE BURDEN OF PERSUASION IMPOSED
ON THE GOVERNMENT AT THE ADMINISTRATIVE LEVEL, BUT FOUND ONLY THAT THE
UNDERLYING DEPORTATION ORDER WAS SUPPORTED BY REASONABLE, SUBSTANTIAL,
AND PROBATIVE EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE.  SECTION
106(A)(4) OF THE IMMIGRATION AND NATIONALITY ACT STATES THAT A
DEPORTATION ORDER "IF SUPPORTED BY REASONABLE, SUBSTANTIAL, AND
PROBATIVE EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE, SHALL BE
CONCLUSIVE," AND SEC. 242(B)(4) OF THE ACT PROVIDES THAT "NO DECISION
OF DEPORTABILITY SHALL BE VALID UNLESS IT IS BASED UPON REASONABLE,
SUBSTANTIAL, AND PROBATIVE EVIDENCE."  HELD: NO DEPORTATION ORDER MAY
BE ENTERED UNLESS THE GOVERNMENT PROVES BY CLEAR, UNEQUIVOCAL, AND
CONVINCING EVIDENCE THAT THE FACTS ALLEGED AS GROUND FOR DEPORTATION
ARE TRUE.  PP. 282-286. 

(A)  SECTIONS 106(A)(4) AND 242(B)(4) OF THE ACT ARE ADDRESSED TO THE
SCOPE OF JUDICIAL REVIEW AND NOT TO THE DEGREE OF PROOF REQUIRED AT THE
ADMINISTRATIVE LEVEL IN DEPORTATION PROCEEDINGS.  PP. 282-284. 

(B)  CONGRESS HAS NOT SPECIFIED THE DEGREE OF PROOF REQUIRED IN
DEPORTATION PROCEEDINGS, A MATTER TRADITIONALLY LEFT TO THE COURTS TO
RESOLVE.  P. 284. 

(C)  IN DENATURALIZATION AND EXPATRIATION CASES THE GOVERNMENT HAS
BEEN REQUIRED BY THE COURT TO ESTABLISH ITS ALLEGATIONS BY CLEAR,
UNEQUIVOCAL, AND CONVINCING EVIDENCE, AND THAT BURDEN OF PROOF IS
LIKEWISE APPROPRIATE IN DEPORTATION PROCEEDINGS.  PP. 285-286. 

WOODBY V. IMMIGRATION AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THESE CASES IS WHAT BURDEN OF PROOF THE
GOVERNMENT MUST SUSTAIN IN DEPORTATION PROCEEDINGS.  WE HAVE CONLUDED
THAT IT IS INCUMBENT UPON THE GOVERNMENT IN SUCH PROCEEDINGS TO
ESTABLISH THE FACTS SUPPORTING DEPORTABILITY BY CLEAR, UNEQUIVOCAL, AND
CONVINCING EVIDENCE. 

IN SHERMAN (NO. 80), THE PETITIONER IS A RESIDENT ALIEN WHO ENTERED
THIS COUNTRY FROM POLAND IN 1920 AS A 14-YEAR-OLD BOY.  IN 1963 THE
IMMIGRATION AND NATURALIZATION SERVICE INSTITUTED PROCEEDINGS TO DEPORT
HIM UPON THE GROUND THAT HE HAD RE-ENTERED THE UNITED STATES IN 1938,
FOLLOWING A TRIP ABROAD, WITHOUT INSPECTION AS AN ALIEN.  (FN1)  AFTER
A HEARING BEFORE A SPECIAL INQUIRY OFFICER, THE PETITIONER WAS ORDERED
TO BE DEPORTED, AND THE BOARD OF IMMIGRATION APPEALS DISMISSED HIS
APPEAL.  (FN2) 

THE GOVERNMENT'S EVIDENCE SHOWED THAT THE PETITIONER HAD OBTAINED A
PASSPORT IN 1937 UNDER THE NAME OF SAMUEL LEVINE, REPRESENTING HIMSELF
AS A UNITED STATES CITIZEN.  SOMEONE USING THIS PASSPORT SAILED TO
FRANCE IN JUNE 1937, PROCEEDED TO SPAIN, RETURNED TO THE UNITED STATES
IN DECEMBER 1938, ABOARD THE S.S. AUSONIA, AND WAS ADMITTED WITHOUT
BEING EXAMINED AS AN ALIEN.  TO ESTABLISH THAT IT WAS THE PETITIONER
WHO HAD TRAVELED UNDER THIS PASSPORT, THE GOVERNMENT INTRODUCED THE
TESTIMONY OF EDWARD MORROW, AN AMERICAN CITIZEN WHO HAD FOUGHT IN THE
SPANISH CIVIL WAR.  MORROW WAS AT FIRST UNABLE TO REMEMBER THE NAME
SAMUEL LEVINE OR IDENTIFY THE PETITIONER, BUT EVENTUALLY STATED THAT HE
THOUGHT HE HAD KNOWN THE PETITIONER AS "SAM LEVINE," HAD SEEN HIM WHILE
FIGHTING FOR THE LOYALISTS IN SPAIN DURING 1937 AND 1938, AND HAD
RETURNED WITH HIM TO THE UNITED STATES ABOARD THE S.S. AUSONIA IN
DECEMBER 1938.  MORROW CONCEDED THAT HIS RECOLLECTION OF EVENTS
OCCURRING 27 YEARS EARLIER WAS IMPERFECT, AND ADMITTED THAT HIS
IDENTIFICATION OF THE PETITIONER MIGHT BE MISTAKEN. 

IT IS NOT CLEAR WHAT STANDARD OF PROOF THE SPECIAL INQUIRY OFFICER
AND THE BOARD OF IMMIGRATION APPEALS ON DE NOVO REVIEW APPLIED IN
DETERMINING THAT IT WAS THE PETITIONER WHO HAD TRAVELED TO SPAIN AND RE
ENTERED THE UNITED STATES UNDER THE SAMUEL LEVINE PASSPORT.  AT THE
OUTSET OF HIS OPINION, THE SPECIAL INQUIRY OFFICER STATED THAT THE
GOVERNMENT MUST ESTABLISH DEPORTABILITY "BY REASONABLE, SUBSTANTIAL AND
PROBATIVE EVIDENCE," WITHOUT DISCUSSING WHAT THE BURDEN OF PROOF WAS. 
LATER HE CONCLUDED THAT THE GOVERNMENT HAD ESTABLISHED ITS CONTENTIONS
"WITH A SOLIDARITY FAR GREATER THAN REQUIRED," BUT DID NOT FURTHER
ELUCIDATE WHAT WAS "REQUIRED."  THE BOARD OF IMMIGRATION APPEALS STATED
THAT IT WAS "ESTABLISHED BEYOND ANY REASONABLE DOUBT" THAT THE
PETITIONER HAD OBTAINED THE SAMUEL LEVINE PASSPORT, AND ADDED THAT THIS
ESTABLISHED A "PRESUMPTION" THAT THE PETITIONER HAD USED IT TO TRAVEL
ABROAD.  THE BOARD FURTHER STATED THAT IT WAS A "MOST UNLIKELY
HYPOTHESIS" THAT SOMEONE OTHER THAN THE PETITIONER HAD OBTAINED AND
USED THE PASSPORT, AND ASSERTED THAT "THE SERVICE HAS BORNE ITS BURDEN
OF ESTABLISHING" THAT THE PETITIONER WAS DEPORTABLE, WITHOUT INDICATING
WHAT IT CONSIDERED THE WEIGHT OF THAT BURDEN TO BE. 

UPON PETITION FOR REVIEW, THE COURT OF APPEALS FOR THE SECOND CIRCUIT
ORIGINALLY SET ASIDE THE DEPORTATION ORDER, UPON THE GROUND THAT THE
GOVERNMENT HAS THE BURDEN OF PROVING THE FACTS SUPPORTING DEPORTABILITY
BEYOND A REASONABLE DOUBT.  (FN3)  THE COURT REVERSED ITSELF, HOWEVER,
UPON A REHEARING EN BANC, HOLDING THAT THE GOVERNMENT NEED ONLY PROVE
ITS CASE WITH "REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE."  (FN4)
WE GRANTED CERTIORARI, 384 U.S. 904. 

IN WOODBY (NO. 40), THE PETITIONER IS A RESIDENT ALIEN WHO WAS BORN
IN HUNGARY AND ENTERED THE UNITED STATES FROM GERMANY IN 1956 AS THE
WIFE OF AN AMERICAN SOLDIER.  DEPORTATION PROCEEDINGS WERE INSTITUTED
AGAINST HER ON THE GROUND THAT SHE HAD ENGAGED IN PROSTITUTION AFTER
ENTRY.  (FN5)  A SPECIAL INQUIRY OFFICER AND THE BOARD OF IMMIGRATION
APPEALS FOUND THAT SHE WAS DEPORTABLE UPON THE GROUND CHARGED. 

AT THE ADMINISTRATIVE HEARING THE PETITIONER ADMITTED THAT SHE HAD
ENGAGED IN PROSTITUTION FOR A BRIEF PERIOD IN 1957, SOME MONTHS AFTER
HER HUSBAND HAD DESERTED HER, BUT CLAIMED THAT HER CONDUCT WAS THE
PRODUCT OF CIRCUMSTANCES AMOUNTING TO DURESS.  WITHOUT REACHING THE
VALIDITY OF THE DURESS DEFENSE, THE SPECIAL INQUIRY OFFICER AND THE
BOARD OF IMMIGRATION APPEALS CONCLUDED THAT THE PETITIONER HAD
CONTINUED TO ENGAGE IN PROSTITUTION AFTER THE ALLEGED DURESS HAD
TERMINATED.  THE HEARING OFFICER AND THE BOARD DID NOT DISCUSS WHAT
BURDEN OF PROOF THE GOVERNMENT WAS REQUIRED TO BEAR IN ESTABLISHING
DEPORTABILITY, NOR DID EITHER OF THEM INDICATE THE DEGREE OF CERTAINTY
WITH WHICH THEIR FACTUAL CONCLUSIONS WERE REACHED.  THE SPECIAL INQUIRY
OFFICER MERELY ASSERTED THAT THE EVIDENCE DEMONSTRATED THAT THE
PETITIONER WAS DEPORTABLE.  THE BOARD STATED THAT THE EVIDENCE MADE IT
"APPARENT" THAT THE PETITIONER HAD ENGAGED IN PROSTITUTION AFTER THE
ALLEGED DURESS HAD ENDED, AND ANNOUNCED THAT "IT IS CONCLUDED THAT THE
EVIDENCE ESTABLISHES DEPORTABILITY  ...  ." 

IN DENYING A PETITION FOR REVIEW, THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT DID NOT EXPLICITLY DEAL WITH THE ISSUE OF WHAT BURDEN OF
PERSUASION WAS IMPOSED UPON THE GOVERNMENT AT THE ADMINISTRATIVE LEVEL,
FINDING ONLY THAT "THE BOARD'S UNDERLYING ORDER IS 'SUPPORTED BY
REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE ON THE RECORD
CONSIDERED AS A WHOLE  ...  .'"  WE GRANTED CERTIORARI, 384 U.S. 904. 

IN THE PREVAILING OPINION IN THE SHERMAN CASE, THE COURT OF APPEALS
FOR THE SECOND CIRCUIT STATED THAT "IF THE SLATE WERE CLEAN," IT "MIGHT
WELL AGREE THAT THE STANDARD OF PERSUASION FOR DEPORTATION SHOULD BE
SIMILAR TO THAT IN DENATURALIZATION, WHERE THE SUPREME COURT HAS
INSISTED THAT THE EVIDENCE MUST BE 'CLEAR, UNEQUIVOCAL, AND CONVINCING'
AND THAT THE GOVERNMENT NEEDS 'MORE THAN A BARE PREPONDERANCE OF THE
EVIDENCE' TO PREVAIL  ...  .  BUT HERE," THE COURT THOUGHT, "CONGRESS
HAS SPOKEN  ...  ."  350 F.2D, AT 900.  THIS VIEW WAS BASED UPON TWO
PROVISIONS OF THE IMMIGRATION AND NATIONALITY ACT WHICH USE THE
LANGUAGE "REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE" IN
CONNECTION WITH DEPORTATION ORDERS.  THE PROVISIONS IN QUESTION ARE
SEC. 106(A)(4) OF THE ACT WHICH STATES THAT A DEPORTATION ORDER, "IF
SUPPORTED BY REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE ON THE
RECORD CONSIDERED AS A WHOLE, SHALL BE CONCLUSIVE," (FN6) AND SEC.
242(B)(4) OF THE ACT WHICH PROVIDES INTER ALIA THAT "NO DECISION OF
DEPORTABILITY SHALL BE VALID UNLESS IT IS BASED UPON REASONABLE,
SUBSTANTIAL, AND PROBATIVE EVIDENCE."  (FN7) 

IT SEEMS CLEAR, HOWEVER, THAT THESE TWO STATUTORY PROVISIONS ARE
ADDRESSED NOT TO THE DEGREE OF PROOF REQUIRED AT THE ADMINISTRATIVE
LEVEL IN DEPORTATION PROCEEDINGS, BUT TO QUITE A DIFFERENT SUBJECT -
THE SCOPE OF JUDICIAL REVIEW.  THE ELEMENTARY BUT CRUCIAL DIFFERENCE
BETWEEN BURDEN OF PROOF AND SCOPE OF REVIEW IS, OF COURSE, A
COMMONPLACE IN THE LAW.  (FN8)  THE DIFFERENCE IS MOST GRAPHICALLY
ILLUSTRATED IN A CRIMINAL CASE.  THERE THE PROSECUTION IS GENERALLY
REQUIRED TO PROVE THE ELEMENTS OF THE OFFENSE BEYOND A REASONABLE
DOUBT.  (FN9)  BUT IF THE CORRECT BURDEN OF PROOF WAS IMPOSED AT THE
TRIAL, JUDICIAL REVIEW IS GENERALLY LIMITED TO ASCERTAINING WHETHER THE
EVIDENCE RELIED UPON BY THE TRIER OF FACT WAS OF SUFFICIENT QUALITY AND
SUBSTANTIALITY TO SUPPORT THE RATIONALITY OF THE JUDGMENT.  IN OTHER
WORDS, AN APPELLATE COURT IN A CRIMINAL CASE ORDINARILY DOES NOT ASK
ITSELF WHETHER IT BELIEVES THAT THE EVIDENCE AT THE TRIAL ESTABLISHED
GUILT BEYOND A REASONABLE DOUBT, BUT WHETHER THE JUDGMENT IS SUPPORTED
BY SUBSTANTIAL EVIDENCE.  (FN10) 

THAT SEC. 106(A)(4) RELATES EXCLUSIVELY TO JUDICIAL REVIEW IS MADE
ABUNDANTLY CLEAR BY ITS LANGUAGE, ITS CONTEXT, AND ITS LEGISLATIVE
HISTORY.  SECTION 106 WAS ADDED TO THE ACT IN 1961 IN ORDER "TO CREATE
A SINGLE, SEPARATE, STATUTORY FORM OF JUDICIAL REVIEW OF ADMINISTRATIVE
ORDERS FOR THE DEPORTATION AND EXCLUSION OF ALIENS FROM THE UNITED
STATES."  (FN11)  THE SECTION IS ENTITLED "JUDICIAL REVIEW OF ORDERS OF
DEPORTATION AND EXCLUSION," AND BY ITS TERMS PROVIDES "THE SOLE AND
EXCLUSIVE PROCEDURE FOR" THE "JUDICIAL REVIEW OF ALL FINAL ORDERS OF
DEPORTATION."  SUBSECTION 106(A)(4) IS A SPECIFIC DIRECTIVE TO THE
COURTS IN WHICH PETITIONS FOR REVIEW ARE FILED.  (FN12) 

IT IS HARDLY LESS CLEAR THAT THE OTHER PROVISON UPON WHICH THE COURT
OF APPEALS FOR THE SECOND CIRCUIT RELIED, SEC. 242(B)(4) OF THE ACT, IS
ALSO ADDRESSED TO REVIEWING COURTS, AND, INSOFAR AS IT REPRESENTS A
YARDSTICK FOR THE ADMINISTRATIVE FACTFINDER, GOES, NOT TO THE BURDEN OF
PROOF, BUT RATHER TO THE QUALITY AND NATURE OF THE EVIDENCE UPON WHICH
A DEPORTATION ORDER MUST BE BASED.  (FN13)  THE PROVISION DECLARES THAT
"REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE" SHALL BE THE MEASURE
OF WHETHER A DEPORTABILITY DECISION IS "VALID" - A WORD THAT IMPLIES
SCRUTINY BY A REVIEWING TRIBUNAL OF A DECISION ALREADY REACHED BY THE
TRIER OF THE FACTS.  THE LOCATION OF THIS PROVISION IN A SECTION
CONTAINING PROVISIONS DEALING WITH PROCEDURES BEFORE THE SPECIAL
INQUIRY OFFICER HAS LITTLE SIGNIFICANCE WHEN IT IS REMEMBERED THAT THE
ORIGINAL 1952 ACT DID NOT ITSELF CONTAIN A FRAMEWORK FOR JUDICIAL
REVIEW - ALTHOUGH SUCH REVIEW WAS, OF COURSE, AVAILABLE BY HABEAS
CORPUS OR OTHERWISE.  SEE MARCELLO V. BONDS, 349 U.S. 302.  AND
WHATEVER AMBIGUITY MIGHT BE THOUGHT TO LIE IN THE LOCATION OF THIS
EXPLAINED SEC. 242(B)(4) AS FOLLOWS: "THE REQUIREMENT THAT THE DECISION
OF THE SPECIAL INQUIRY OFFICER SHALL BE BASED ON REASONABLE,
SUBSTANTIAL AND PROBATIVE EVIDENCE MEANS THAT, WHERE THE DECISION RESTS
UPON EVIDENCE OF SUCH A NATURE THAT IT CANNOT BE SAID THAT A REASONABLE
PERSON MIGHT NOT HAVE REACHED THE CONCLUSION WHICH WAS REACHED, THE
CASE MAY NOT BE REVERSED BECAUSE THE JUDGMENT OF THE APPELLATE BODY
DIFFERS FROM THAT OF THE ADMINISTRATIVE BODY."  (FN14) 

WE CONCLUDE, THEREFORE, THAT CONGRESS HAS NOT ADDRESSED ITSELF TO THE
QUESTION OF WHAT DEGREE OF PROOF IS REQUIRED IN DEPORTATION
PROCEEDINGS.  IT IS THE KIND OF QUESTION WHICH HAS TRADITIONALLY BEEN
LEFT TO THE JUDICIARY TO RESOLVE,  (FN15)  AND ITS RESOLUTION IS
NECESSARY IN THE INTEREST OF THE EVENHANDED ADMINISTRATION OF THE
IMMIGRATION AND NATIONALITY ACT. 

THE PETITIONERS URGE THAT THE APPROPRIATE BURDEN OF PROOF IN
DEPORTATION PROCEEDINGS SHOULD BE THAT WHICH THE LAW IMPOSES IN
CRIMINAL CASES - THE DUTY OF PROVING THE ESSENTIAL FACTS BEYOND A
REASONABLE DOUBT.  THE GOVERNMENT, ON THE OTHER HAND, POINTS OUT THAT A
DEPORTATION PROCEEDING IS NOT A CRIMINAL CASE, AND THAT THE APPROPRIATE
BURDEN OF PROOF SHOULD CONSEQUENTLY BE THE ONE GENERALLY IMPOSED IN
CIVIL CASES AND ADMINISTRATIVE PROCEEDINGS - THE DUTY OF PREVAILING BY
A MERE PREPONDERANCE OF THE EVIDENCE. 

TO BE SURE, A DEPORTATION PROCEEDING IS NOT A CRIMINAL PROSECUTION. 
HARISIADES V. SHAUGHNESSY, 342 U.S. 580.  BUT IT DOES NOT
SYLLOGISTICALLY FOLLOW THAT A PERSON MAY BE BANISHED FROM THIS COUNTRY
UPON NO HIGHER DEGREE OF PROOF THAN APPLIES IN A NEGLIGENCE CASE.  THIS
COURT HAS NOT CLOSED ITS EYES TO THE DRASTIC DEPRIVATIONS THAT MAY
FOLLOW WHEN A RESIDENT OF THIS COUNTRY IS COMPELLED BY OUR GOVERNMENT
TO FORSAKE ALL THE BONDS FORMED HERE AND GO TO A FOREIGN LAND WHERE HE
OFTEN HAS NO CONTEMPORARY IDENTIFICATION.  IN WORDS APPOSITE TO THE
QUESTION BEFORE US, WE HAVE SPOKEN OF "THE SOLIDITY OF PROOF THAT IS
REQUIRED FOR A JUDGMENT ENTAILING THE CONSEQUENCES OF DEPORTATION,
PARTICULARLY IN THE CASE OF AN OLD MAN WHO HAS LIVED IN THIS COUNTRY
FOR FORTY YEARS  ...  ."  ROWOLDT V. PERFETTO, 355 U.S. 115, 120. 

IN DENATURALIZATION CASES THE COURT HAS REQUIRED THE GOVERNMENT TO
ESTABLISH ITS ALLEGATIONS BY CLEAR, UNEQUIVOCAL, AND CONVINCING
EVIDENCE.  (FN16)  THE SAME BURDEN HAS BEEN IMPOSED IN EXPATRIATION
CASES.  (FN17)  THAT STANDARD OF PROOF IS NO STRANGER TO THE CIVIL
LAW.  (FN18) 

NO LESS A BURDEN OF PROOF IS APPROPRIATE IN DEPORTATION PROCEEDINGS. 
THE IMMEDIATE HARDSHIP OF DEPORTATION IS OFTEN GREATER THAN THAT
INFLICTED BY DENATURALIZATION, WHICH DOES NOT, IMMEDIATELY AT LEAST,
RESULT IN EXPULSION FROM OUR SHORES.  AND MANY RESIDENT ALIENS HAVE
LIVED IN THIS COUNTRY LONGER AND ESTABLISHED STRONGER FAMILY, SOCIAL,
AND ECONOMIC TIES HERE THAN SOME WHO HAVE BECOME NATURALIZED CITIZENS. 

WE HOLD THAT NO DEPORTATION ORDER MAY BE ENTERED UNLESS IT IS FOUND
BY CLEAR, UNEQUIVOCAL, AND CONVINCING EVIDENCE THAT THE FACTS ALLEGED
AS GROUNDS FOR DEPORTATION ARE TRUE.  (FN19) ACCORDINGLY, IN EACH OF
THE CASES BEFORE US, THE JUDGMENT OF THE COURT OF APPEALS IS SET ASIDE,
AND THE CASE IS REMANDED WITH DIRECTIONS TO REMAND TO THE IMMIGRATION
AND NATURALIZATION SERVICE FOR SUCH FURTHER PROCEEDINGS AS, CONSISTENT
WITH THIS OPINION, MAY BE DEEMED APPROPRIATE.  (FN20)  IT IS SO
ORDERED.    FN1  SECTION 241(A)(2) OF THE IMMIGRATION AND NATIONALITY
ACT OF 1952, 66 STAT. 204, 8 U.S.C. SEC. 1251(A)(2), PROVIDES FOR
DEPORTATION OF ANY ALIEN WHO "ENTERED THE UNITED STATES WITHOUT
INSPECTION OR AT ANY TIME OR PLACE OTHER THAN AS DESIGNATED BY THE
ATTORNEY GENERAL  ...  ."  PRIOR TO 1952, THE GOVERNMENT WAS REQUIRED
TO BRING DEPORTATION PROCEEDINGS WITHIN FIVE YEARS OF AN ALLEGED
ILLEGAL ENTRY, 39 STAT. 889 (1917), AS AMENDED, 8 U.S.C. SEC 155(A)
(1964 ED.).  THUS, UNDER THE PRIOR LAW, THE PETITIONER WOULD NOT HAVE
BEEN SUBJECT TO DEPORTATION PROCEEDINGS COMMENCED AFTER 1943.  HOWEVER,
THIS TIME LIMIT WAS RETROACTIVELY ELIMINATED BY THE 1952 ACT, SEC.
241(D), 66 STAT. 208, 8 U.S.C. SEC. 1251(D).  SEE DEVELOPMENTS IN THE
LAW, IMMIGRATION AND NATIONALITY, 66 HARV. L. REV. 643, 683-684. 

FN2  IN CONFORMITY WITH ITS USUAL PRACTICE, THE BOARD MADE ITS OWN
INDEPENDENT DETERMINATION OF THE FACTUAL ISSUES AFTER DE NOVO
EXAMINATION OF THE RECORD.  SEE GORDON & ROSENFIELD, IMMIGRATION LAW
AND PROCEDURE 46-47 (1959). 

FN3  350 F.2D 894. 

FN4  350 F.2D, AT 901.  THE COURT ADOPTED THE REASONING OF THE
OPINION WHICH JUDGE FRIENDLY HAD FILED AS A DISSENT TO THE ORIGINAL
DECISION.  JUDGES WATERMAN AND SMITH, WHO HAD FORMED THE ORIGINAL
MAJORITY, DISSENTED. 

FN5  SECTION 241(A)(12) OF THE IMMIGRATION AND NATIONALITY ACT OF
1952, 66 STAT. 207, 8 U.S.C. SEC. 1251(A)(12), PROVIDES FOR THE
DEPORTATION OF ANY ALIEN WHO "BY REASON OF ANY CONDUCT, BEHAVIOR OR
ACTIVITY AT ANY TIME AFTER ENTRY BECAME A MEMBER OF ANY OF THE CLASSES
SPECIFIED IN PARAGRAPH (12) OF SECTION 212(A)  ...  ."  AMONG THE
CLASSES SPECIFIED IN SEC.  212(A)(12) OF THE ACT, 66 STAT. 182, 8
U.S.C. SEC. 1182(A)(12), ARE "ALIENS WHO ARE PROSTITUTES OR WHO HAVE
ENGAGED IN PROSTITUTION  ...  ." 

FN6  75 STAT. 651 (1961), 8 U.S.C. SEC. 1105AA)(4). 

FN7  66 STAT. 210 (1952), 8 U.S.C. SEC. 1252(B)(4). 

FN8  SEE JAFFE, ADMINISTRATIVE LAW:  BURDEN OF PROOF AND SCOPE OF
REVIEW, 79 HARV. L. REV.  914 (1966); COMMENT, 41 N.Y.U.L. REV. 622
(1966); STANDARD OF PROOF IN DEPORTATION PROCEEDINGS, 18 STAN.  L. REV.
1237 (1966). 

FN9  SEE MCCORMICK, EVIDENCE 681-685 (1954); 9 WIGMORE, EVIDENCE SEC
2497 (3D ED. 1940). 

FN10  E.G., RUTKIN V. UNITED STATES, 343 U.S. 130, 135.  FOR
DISCUSSION OF VARIATIONS OF AND ALTERNATIVES TO THE USUAL RULE, SEE
GOLDSTEIN, THE STATE AND THE ACCUSED:  BALANCE OF ADVANTAGE IN CRIMINAL
PROCEDURE, 69 YALE L.J. 1149, 1157-1163 (1960). 

FN11  H.R. REP. NO. 1086, 87TH CONG., 1ST SESS., 22. 

FN12  "JUDICIAL REVIEW OF ORDERS OF DEPORTATION AND EXCLUSION. 

"SEC. 106.  (A)  THE PROCEDURE PRESCRIBED BY, AND ALL THE PROVISIONS
OF THE ACT OF DECEMBER 29, 1950, AS AMENDED (64 STAT. 1129; 68 STAT.
961; 5 U.S.C. 1031 ET SEQ.), SHALL APPLY TO, AND SHALL BE THE SOLE AND
EXCLUSIVE PROCEDURE FOR, THE JUDICIAL REVIEW OF ALL FINAL ORDERS OF
DEPORTATION  ... EXCEPT THAT: 

     *         *         *         *         * 

"(4)  ...  THE PETITION SHALL BE DETERMINED SOLELY UPON THE
ADMINISTRATIVE RECORD UPON WHICH THE DEPORTATION ORDER IS BASED AND THE
ATTORNEY GENERAL'S FINDINGS OF FACT, IF SUPPORTED BY REASONABLE,
SUBSTANTIAL, AND PROBATIVE EVIDENCE ON THE RECORD CONSIDERED AS A
WHOLE, SHALL BE CONCLUSIVE  ... ."  75 STAT. 651 (1961), 8 U.S.C. SEC.
1105AA). 

FN13  THIS HAS BEEN RECOGNIZED BY THE BOARD OF IMMIGRATION APPEALS
ITSELF: 

"FINALLY, IT IS IMPORTANT TO BEAR IN MIND THE DISTINCTION BETWEEN THE
BURDEN OF PROOF AND THE QUALITY OF THE EVIDENCE WHICH IS REQUIRED TO
ESTABLISH THAT BURDEN SUCCESSFULLY.  IT IS TO BE NOTED THAT SUBSECTION
(B)(4) OF SECTION 242 OF THE ACT DOES NOT SPEAK OF THE BURDEN OF PROOF
BUT OF THE QUALITY OF THE EVIDENCE WHICH THE SERVICE MUST PRODUCE
BEFORE DEPORTABILITY CAN VALIDLY BE FOUND ...  ."  MATTER OF V - , 7
I.&N. DEC. 460, 463. 

FN14  S. REP. NO. 1137, 82D CONG., 2D SESS., 30.  THE HOUSE REPORT
CONTAINS SUBSTANTIALLY IDENTICAL LANGUAGE.  H.R. REP. NO. 1365, 82D
CONG., 2D SESS., 57. 

FN15  SEE MCBAINE, BURDEN OF PROOF:  DEGREES OF BELIEF, 32 CALIF. L.
REV. 242 (1944).  SEE ALSO 9 WIGMORE, EVIDENCE SECS 2488-2493, 2497
2498 (3D ED. 1940). 

FN16  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118; BAUMGARTNER V.
UNITED STATES, 322 U.S. 665; NOWAK V. UNITED STATES, 356 U.S. 660;
CHAUNT V. UNITED STATES, 364 U.S. 350. 

FN17  GONZALES V. LANDON, 350 U.S. 920; NISHIKAWA V. DULLES, 356 U.S.
129.  BUT SEE SEC 349(C) OF THE IMMIGRATION AND NATIONALITY ACT, 75
STAT. 656 (1961), 8 U.S.C. SEC. 1481(C). 

FN18  THIS STANDARD, OR AN EVEN HIGHER ONE, HAS TRADITIONALLY BEEN
IMPOSED IN CASES INVOLVING ALLEGATIONS OF CIVIL FRAUD, AND IN A VARIETY
OF OTHER KINDS OF CIVIL CASES INVOLVING SUCH ISSUES AS ADULTERY,
ILLEGITIMACY OF A CHILD BORN IN WEDLOCK, LOST WILLS, ORAL CONTRACTS TO
MAKE BEQUESTS, AND THE LIKE.  SEE 9 WIGMORE, EVIDENCE SEC 2498 (3D ED.
1940). 

FN19  THIS STANDARD OF PROOF APPLIES TO ALL DEPORTATION CASES,
REGARDLESS OF THE LENGTH OF TIME THE ALIEN HAS RESIDED IN THIS
COUNTRY.  IT IS PERHAPS WORTH POINTING OUT, HOWEVER, THAT, AS A
PRACTICAL MATTER, THE MORE RECENT THE ALLEGED EVENTS SUPPORTING
DEPORTABILITY, THE MORE READILY THE GOVERNMENT WILL GENERALLY BE ABLE
TO PROVE ITS ALLEGATIONS BY CLEAR, UNEQUIVOCAL, AND CONVINCING
EVIDENCE. 

FN20  SECTION 106(A)(1) OF THE ACT, 75 STAT. 651 (1961), 8 U.S.C.
SEC. 1105AA)(1), PROVIDES THAT A PETITION FOR JUDICIAL REVIEW MUST BE
FILED WITH THE COURT OF APPEALS NOT LATER THAN SIX MONTHS AFTER A FINAL
ORDER OF DEPORTATION.  IN NO. 40, WOODBY, THE PETITIONER'S APPEAL TO
THE BOARD OF IMMIGRATION APPEALS WAS DISMISSED ON MARCH 8, 1963, AND A
MOTION FOR RECONSIDERATION WAS DENIED ON MAY 27, 1963.  PETITION FOR
REVIEW BY THE COURT OF APPEALS WAS FILED MORE THAN SIX MONTHS AFTER THE
BOARD UPHELD THE DEPORTATION ORDER, BUT WITHIN SIX MONTHS AFTER THE
DENIAL OF THE MOTION TO RECONSIDER.  THE COURT OF APPEALS DID NOT PASS
ON THE QUESTION WHETHER, IN SUCH CIRCUMSTANCES, ITS POWER OF REVIEW WAS
LIMITED TO CONSIDERATION WHETHER THE DENIAL OF THE MOTION FOR
RECONSIDERATION WAS AN ABUSE OF DISCRETION, OR WHETHER IT MIGHT ALSO
ASSESS IN FULL THE VALIDITY OF THE DEPORTATION ORDER.  FOLLOWING THE
DECISION OF THE COURT OF APPEALS IN THIS CASE, THE COURT OF APPEALS FOR
THE NINTH CIRCUIT HELD, IN SIMILAR CIRCUMSTANCES, THAT IT HAD AUTHORITY
TO UNDERTAKE FULL REVIEW OF THE DEPORTATION ORDER, AS WELL AS THE
DENIAL OF THE MOTION TO RECONSIDER.  BREGMAN V. IMMIGRATION AND
NATURALIZATION SERVICE, 351 F.2D 401.  IN LIGHT OF THE BREGMAN
DECISION, THE GOVERNMENT BEFORE THIS COURT EXPRESSLY ABANDONED ITS
CONTENTION THAT IN THIS CASE THE COURTS ARE LIMITED TO REVIEWING THE
DENIAL OF THE MOTION TO RECONSIDER.  SEE THE GOVERNMENT'S BRIEF IN NO.
40, WOODBY, P. 8, N. 3. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE COURT, BY PLACING A HIGHER STANDARD OF PROOF ON THE GOVERNMENT,
IN DEPORTATION CASES, HAS USURPED THE LEGISLATIVE FUNCTION OF THE
CONGRESS AND HAS IN ONE FELL SWOOP REPEALED THE LONG-ESTABLISHED
"REASONABLE, SUBSTANTIAL, AND PROBATIVE" BURDEN OF PROOF PLACED ON THE
GOVERNMENT BY SPECIFIC ACT OF THE CONGRESS, AND SUBSTITUTED ITS OWN
"CLEAR, UNEQUIVOCAL, AND CONVINCING" STANDARD.  THIS IS BUT ANOTHER
CASE IN A LONG LINE IN WHICH THE COURT HAS TIGHTENED THE NOOSE AROUND
THE GOVERNMENT'S NECK IN IMMIGRATION CASES. 

I. 

I AGREE THAT SEC. 106(A)(4), THE 1961 AMENDMENT TO THE IMMIGRATION
AND NATIONALITY ACT OF 1952, RELATES TO JUDICIAL REVIEW OF
ADMINISTRATIVE ORDERS OF THE IMMIGRATION SERVICE BUT, WITH DUE
DEFERENCE, I CANNOT SEE HOW "IT IS HARDLY LESS CLEAR" THAT SEC.
242(B)(4) OF THE ACT, AS THE COURT SAYS, LIKEWISE APPLIES EXCLUSIVELY
TO JUDICIAL REVIEW.  INDEED, ON THE CONTRARY, THE LATTER SECTION WAS
SPECIFICALLY ENACTED AS THE ONLY STANDARD OF PROOF TO BE APPLIED IN
DEPORTATION CASES. 

BEFORE SEC. 242(B) WAS ENACTED THE IMMIGRATION LAWS CONTAINED NO
DETAILED PROVISION CONCERNING THE BURDEN OF PROOF IN DEPORTATION
CASES.  KESSLER V. STRECKER, 307 U.S. 22, 34 (1939).  IN WONG YANG SUNG
V. MCGRATH, 339 U.S. 33 (1950), THIS COURT EXTENDED THE PROVISIONS OF
THE ADMINISTRATIVE PROCEDURE ACT TO DEPORTATION PROCEEDINGS.  CONGRESS
IMMEDIATELY EXEMPTED SUCH PROCEEDINGS FROM THE ADMINISTRATIVE PROCEDURE
ACT AND IN 1952 ESTABLISHED IN SEC. 242(B) AN EXCLUSIVE PROCEDURAL
SYSTEM FOR DEPORTATION PROCEEDINGS. 

IN ESSENCE THAT SECTION, SEC. 242(B), PROVIDES FOR NOTICE AND A
HEARING BEFORE A "SPECIAL INQUIRY OFFICER" OF THE IMMIGRATION SERVICE;
SETS THE STANDARD OF PROOF IN SUCH CASES AS "REASONABLE, SUBSTANTIAL,
AND PROBATIVE EVIDENCE"; AND AUTHORIZES THE ATTORNEY GENERAL TO ISSUE
REGULATIONS.  IN ISSUING THOSE REGULATIONS THE ATTORNEY GENERAL
ESTABLISHED A BOARD OF IMMIGRATION APPEALS.  THE BOARD'S RELATIONSHIP
TO THE ORDERS OF THE SPECIAL INQUIRY OFFICER IS SIMILAR TO THE
RELATIONSHIP AN AGENCY HAS TO THE ORDERS OF A HEARING EXAMINER UNDER
THE ADMINISTRATIVE PROCEDURE ACT.  THE SECTION ALSO SPECIFICALLY
PROVIDES THAT THE REGULATIONS SHALL INCLUDE REQUIREMENTS THAT "NO
DECISION OF DEPORTABILITY SHALL BE VALID UNLESS IT IS BASED UPON
REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE" AND THAT THIS STANDARD
SHALL BE THE "SOLE AND EXCLUSIVE PROCEDURE FOR DETERMINING THE
DEPORTABILITY OF AN ALIEN UNDER THIS SECTION."  THIS WAS THE FIRST TIME
IN OUR HISTORY THAT CONGRESS HAD EXPRESSLY PLACED A SPECIFIC STANDARD
OF PROOF ON THE GOVERNMENT IN DEPORTATION CASES.  AND THE LANGUAGE
CONGRESS USED MADE IT CLEAR THAT THIS STANDARD RELATED TO THE "BURDEN
OF PROOF" AS WELL AS "THE QUALITY AND NATURE OF THE EVIDENCE."  THE
REQUIREMENT OF "REASONABLE" EVIDENCE CANNOT BE MEANT MERELY TO EXCLUDE
"UNREASONABLE" OR "IRRATIONAL" EVIDENCE BUT CARRIES THE OBVIOUS
CONNOTATION FROM HISTORY AND TRADITION OF SUFFICIENCY TO SUSTAIN A
CONCLUSION BY A PREPONDERANCE OF THE EVIDENCE.  (FN1)  CONGRESS IN
OVERRULING WONG YANG SUNG, SUPRA, CARVED DEPORTATION PROCEEDINGS FROM
THE JUDICIAL OVERTONES OF THE ADMINISTRATIVE PROCEDURE ACT AND
ESTABLISHED A BUILT-IN ADMINISTRATIVE PROCEDURE. 

THIS IS MADE CRYSTAL CLEAR BY THE REPORTS OF BOTH HOUSES OF CONGRESS
ON SEC. 242(B).  THE COMMITTEE REPORTS, S. REP. NO. 1137, 82D CONG., 2D
SESS., 30; H.R. REP. NO. 1365, 82D CONG., 2D SESS., 57, STATE IN
SIMPLE, UNDERSTANDABLE LANGUAGE THAT: 

"THE REQUIREMENT THAT THE DECISION OF THE SPECIAL INQUIRY OFFICER
SHALL BE BASED ON REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE MEANS
THAT, WHERE THE DECISION RESTS UPON EVIDENCE OF SUCH A NATURE THAT IT
CANNOT BE SAID THAT A REASONABLE PERSON MIGHT NOT HAVE REACHED THE
CONCLUSION WHICH WAS REACHED, THE CASE MAY NOT BE REVERSED BECAUSE THE
JUDGMENT OF THE APPELLATE BODY DIFFERS FROM THAT BELOW." 

THE COURTS CONSISTENTLY APPLIED THE STANDARD OF "REASONABLE,
SUBSTANTIAL AND PROBATIVE" EVIDENCE AFTER THE ADOPTION OF SEC. 242(B). 
SEE, E.G., ROWOLDT V. PERFETTO, 355 U.S. 115, 120-121 (1957). 

THE COURT, HOWEVER, IN SHAUGHNESSY V. PEDREIRO, 349 U.S. 48 (1955),
ONCE AGAIN EXTENDED THE ADMINISTRATIVE PROCEDURE ACT'S PROVISION
RESPECTING JUDICIAL REVIEW TO DEPORTATION CASES.  THE REACTION OF THE
CONGRESS WAS IDENTICAL TO THAT OF 1952 WHEN IT OVERRULED WONG YANG
SUNG, SUPRA.  IT ENACTED, IN 1961, SEC. 106(A)(4) OF THE ACT.  JUST AS
SEC. 242(B) WAS THE FIRST STATUTORY STANDARD OF PROOF, SEC. 106(A)(4)
WAS THE FIRST EXPRESS STATUTORY STANDARD OF JUDICIAL REVIEW.  IT
PROVIDED: 

"  ...  THE PETITION FOR REVIEW SHALL BE DETERMINED SOLELY UPON THE
ADMINISTRATIVE RECORD UPON WHICH THE DEPORTATION ORDER IS BASED AND THE
ATTORNEY GENERAL'S FINDINGS OF FACT, IF SUPPORTED BY REASONABLE,
SUBSTANTIAL, AND PROBATIVE EVIDENCE ON THE RECORD CONSIDERED AS A
WHOLE, SHALL BE CONCLUSIVE." 

WHY CONGRESS PASSED SEC. 106(A)(4) IF JUDICIAL REVIEW, AS THE COURT
HOLDS, WAS ALREADY EXCLUSIVELY COVERED BY SEC. 242(B) IS BEYOND MY
COMPREHENSION - UNLESS IT WAS ENGAGED IN SHADOW BOXING.  I CANNOT
BELIEVE THAT IT WAS. 

THE COURT SAYS THAT BOTH THE SPECIAL INQUIRY OFFICER AND THE BOARD OF
IMMIGRATION APPEALS FAILED TO STATE WHAT THE BURDEN OF PROOF WAS IN
THESE CASES.  FAULT IS FOUND IN THE OFFICER'S USE OF THE PHRASE
"SOLIDARITY" OF PROOF "FAR GREATER THAN REQUIRED."  THIS LANGUAGE WAS
APPARENTLY PATTERNED AFTER THIS COURT'S OPINION IN ROWOLDT, SUPRA,
WHERE THE PHRASE "SOLIDITY OF PROOF" WAS USED.  THE FINDINGS OF BOTH
THE OFFICERS AND THE BOARD IN THESE CASES SHOW SPECIFICALLY THAT THE
BURDEN OF PROOF FOLLOWED IN EACH CASE WAS THAT REQUIRED OF THE
GOVERNMENT IN SEC. 242(B) AND THE REGULATIONS OF THE ATTORNEY GENERAL,
I.E., BY "REASONABLE, SUBSTANTIAL, AND PROBATIVE EVIDENCE."  THIS
STANDARD HAS BEEN ADMINISTRATIVELY FOLLOWED BY THE IMMIGRATION SERVICE
IN A LONG AND UNBROKEN LINE OF CASES.  SEE MATTER OF PERALTA, 10 I.&N.
DEC. 43, 46. 

THE COURT NOW EXTENDS THE STANDARD OF SCHNEIDERMAN V. UNITED STATES,
320 U.S. 118 (1943), IN DENATURALIZATION CASES, I.E., "CLEAR,
UNEQUIVOCAL, AND CONVINCING EVIDENCE," TO DEPORTATION CASES.  BUT
DENATURALIZATION AND EXPATRIATION ARE MUCH MORE OPPRESSIVE CASES THAN
DEPORTATION.  THEY DEPRIVE ONE OF CITIZENSHIP WHICH THE UNITED STATES
HAD PREVIOUSLY CONFERRED.  THE SCHNEIDERMAN RULE ONLY FOLLOWS THE
PRINCIPLE THAT VESTED RIGHTS CAN BE CANCELED ONLY UPON CLEAR,
UNEQUIVOCAL, AND CONVINCING PROOF; IT GIVES STABILITY AND FINALITY TO A
MOST PRECIOUS RIGHT - CITIZENSHIP.  AN ALIEN, HOWEVER, DOES NOT ENJOY
CITIZENSHIP BUT ONLY A CONDITIONAL PRIVILEGE EXTENDED TO HIM BY THE
CONGRESS AS A MATTER OF GRACE.  BOTH PETITIONERS, THE RECORD SHOWS,
KNEW THIS, YET THEY REMAINED IN THIS COUNTRY FOR YEARS - 46 IN THE CASE
OF SHERMAN AND 10 IN THAT OF WOODBY.  STILL, NEITHER MADE ANY EFFORT TO
OBTAIN CITIZENSHIP. 

                                            II. 

BY TREATING THESE TWO CASES AS RAISING ONLY A SINGLE ISSUE THE COURT
IGNORES SOME ASPECTS OF WOODBY WHICH GREATLY TROUBLE ME.  WOODBY SOUGHT
REVIEW OF THE FINAL DEPORTATION ORDER AGAINST HER MORE THAN SIX MONTHS
AFTER ENTRY OF THAT ORDER.  SECTION 106(A)(1) OF THE ACT SPECIFICALLY
LIMITS THE JURISDICTION OF THE COURT OF APPEALS TO CONSIDERATION OF
PETITIONS FOR REVIEW "FILED NOT LATER THAN SIX MONTHS FROM THE DATE OF
THE FINAL DEPORTATION ORDER."  THE LEGISLATIVE HISTORY OF THAT
PROVISION MAKES IT CLEAR THAT CONGRESS INTENDED IT TO BE STRICTLY
ENFORCED IN ORDER TO ALLEVIATE THE SPECTACLE OF ALIENS SUBJECT TO
DEPORTATION ORDERS AND ABLE TO REMAIN IN THIS COUNTRY FOR LONG PERIODS
OF TIME BY EMPLOYING DILATORY LEGAL TACTICS.  SEE H.R. REP. NO. 565,
87TH CONG., 1ST SESS. SINCE THERE IS NO TIME LIMIT ON PETITIONS FOR
REHEARING OR RECONSIDERATION, 8 CFR SECS. 242.22, 103.5, PERMITTING
REVIEW OF A FINAL ORDER OF DEPORTATION MERELY BECAUSE A TIMELY PETITION
FOR REVIEW OF AN ADMINISTRATIVE REFUSAL TO REOPEN THE PROCEEDINGS HAS
BEEN FILED WOULD NEGATE THE CONGRESSIONAL PURPOSE BEHIND THE INSISTENCE
ON TIMELY FILING IN SEC. 106(A)(1).  LOPEZ V. U.S. DEPARTMENT OF
JUSTICE, 356 F.2D 986, CERT. DENIED, POST, P. 839.(  (FN2) 

THE COURT HOLDS ONLY THAT "NO DEPORTATION ORDER MAY BE ENTERED UNLESS
IT IS FOUND BY CLEAR, UNEQUIVOCAL, AND CONVINCING EVIDENCE THAT THE
FACTS ALLEGED AS GROUNDS FOR DEPORTATION ARE TRUE."  THE GROUND ALLEGED
FOR DEPORTATION OF WOODBY WAS THAT SHE HAD "ENGAGED IN PROSTITUTION
AFTER ENTRY."   IT HAS NEVER BEEN CONTENDED THAT THIS GROUND WAS NOT
PROPERLY ESTABLISHED.  IN FACT IT IS CONCEDED THAT WOODBY ENGAGED IN
PROSTITUTION.  THE ONLY FACTUAL DISPUTE INVOLVED IN HER CASE CENTERS ON
THE QUESTION WHETHER HER ACTIVITIES AROSE FROM DURESS AND ENDED WHEN
THE CONDITIONS COMPELLING HER TO STRAY CEASED TO EXIST.  IT SEEMS CLEAR
TO ME THAT SINCE WOODBY IS RAISING DURESS AS AN AFFIRMATIVE DEFENSE SHE
BEARS THE BURDEN OF ESTABLISHING ALL ELEMENTS OF THAT DEFENSE.  SEE
MATTER OF M - , 7 I.&N. DEC. 251.  AND THE RECORD CLEARLY SHOWS THAT
BOTH THE ADMINISTRATIVE AUTHORITIES AND THE COURT OF APPEALS REJECTED
WOODBY'S "BIZARRE" STORY.  UNDER FAMILIAR PRINCIPLES THOSE FINDINGS ARE
BINDING ON THIS COURT, UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S.
474, AND NOTHING IN WHAT THE COURT HOLDS TODAY AFFECTS THAT
CONCLUSION. 

I REGRET THAT MY POWERS OF PERSUASION WITH MY BRETHREN ARE NOT
SUFFICIENT TO PREVENT THIS ENCROACHMENT UPON THE FUNCTION OF THE
CONGRESS WHICH WILL PLACE AN UNDUE AND UNINTENDED BURDEN UPON THE
GOVERNMENT IN DEPORTATION CASES.  I DISSENT. 

FN1  THUS THE JUDICIAL REVIEW PROVISION OF THE ADMINISTRATIVE
PROCEDURE ACT, 5 U.S.C. SEC 1009(E)(5), LIMITS THE SCOPE OF REVIEW TO A
DETERMINATION OF SUPPORT BY "SUBSTANTIAL EVIDENCE," AND 5 U.S.C. SEC
1006 LIMITS THE AGENCIES TO ACTING ON "RELIABLE, PROBATIVE, AND
SUBSTANTIAL EVIDENCE."  THIS PATTERN HAS TRADITIONALLY BEEN HELD
SATISFIED WHEN THE AGENCY DECIDES ON THE PREPONDERANCE OF THE
EVIDENCE. 

FN2  IN GIOVA V. ROSENBERG, 379 U.S. 18, THIS COURT HELD ONLY THAT
DENIAL OF A PETITION TO REOPEN OR RECONSIDER IS REVIEWABLE.  THE COURT
DID NOT SPECIFY THE SCOPE OF REVIEW TO BE APPLIED.  THE COURT MAY BE
DEPENDING UPON A CONCESSION BY THE GOVERNMENT ON THIS POINT, BUT IT IS
CLEAR THAT JURISDICTION CANNOT BE WAIVED.  KING BRIDGE CO. V. OTOE
COUNTY, 120 U.S. 225; GOOD SHOT V. UNITED STATES, 179 U.S. 87. 
..END :




HOFFA V. UNITED STATES 385 U.S. 293 


NO. 32.  ARGUED OCTOBER 13, 1966.  - DECIDED DECEMBER 12, 1966.* - 349
F.2D 20, AFFIRMED. 

*TOGETHER WITH NO. 33, PARKS V. UNITED STATES, NO. 34, CAMPBELL V.
UNITED STATES, AND NO. 35, KING V. UNITED STATES, ALSO ON CERTIORARI TO
THE SAME COURT. 


PETITIONERS WERE CONVICTED UNDER 18 U.S.C. SEC 1503 FOR ENDEAVORING TO
BRIBE MEMBERS OF A JURY IN A PREVIOUS TRIAL OF PETITIONER HOFFA, FOR
VIOLATING THE TAFT-HARTLEY ACT, WHICH RESULTED IN A HUNG JURY. 
SUBSTANTIAL INFORMATION AND EVIDENCE WERE GIVEN IN THE PROSECUTION BY
PARTIN, A PAID GOVERNMENT INFORMER, WHO THROUGHOUT THE TAFT-HARTLEY
TRIAL WAS REPEATEDLY IN HOFFA'S COMPANY - IN HOFFA'S HOTEL SUITE, THE
HOTEL LOBBY, AND ELSEWHERE.  THE COURT OF APPEALS AFFIRMED THE
CONVICTIONS, AND THIS COURT GRANTED CERTIORARI ON THE QUESTION WHETHER
THE USE OF EVIDENCE FURNISHED BY THE INFORMER RENDERED THE CONVICTIONS
INVALID.  HELD: 

1.  NO RIGHTS UNDER THE FOURTH AMENDMENT WERE VIOLATED BY THE FAILURE
OF PARTIN TO DISCLOSE HIS ROLE AS A GOVERNMENT INFORMER.  WHEN HOFFA
MADE INCRIMINATING STATEMENTS TO OR IN THE PRESENCE OF PARTIN, HIS
INVITEE, RELIED, NOT ON THE SECURITY OF THE HOTEL ROOM, BUT ON HIS
MISPLACED CONFIDENCE THAT PARTIN WOULD NOT REVEAL HIS WRONGDOING.  PP.
300-303. 

2.  HOFFA'S CONVERSATIONS WITH PARTIN, BEING ENTIRELY VOLUNTARY,
INVOLVED NO FIFTH AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF
INCRIMINATION.  PP. 303-304. 

3.  THERE WAS NO VIOLATION OF ANY SIXTH AMENDMENT RIGHT TO COUNSEL IN
THIS CASE.  PP. 304-310. 

(A) A SIXTH AMENDMENT VIOLATION RESULTING FROM PARTIN'S REPORTING TO
THE GOVERNMENT OF THE ACTIVITIES OF HOFFA'S COUNSEL IN PREPARING THE
DEFENSE OF THE TAFT-HARTLEY TRIAL MIGHT HAVE INVALIDATED ANY CONVICTION
IN THAT TRIAL.  BUT THE CONVICTION IN THE SUBSEQUENT TRIAL FOR THE
DIFFERENT OFFENSE OF ENDEAVORING TO BRIBE JURORS WAS NOT RENDERED
INVALID BY THE ADMISSION OF HOFFA'S INCRIMINATING STATEMENTS HEARD BY
PARTIN, NONE OF WHICH WERE MADE IN THE PRESENCE OF COUNSEL OR IN
CONNECTION WITH THE LEGITIMATE DEFENSE OF THE TAFT-HARTLEY TRIAL. 
CALDWELL V. UNITED STATES, 92 U.S. APP. D.C. 355, 205 F.2D 879; COPLON
V. UNITED STATES, 89 U.S. APP. D.C. 103, 191 F.2D 749, DISTINGUISHED. 
PP. 306-309. 

(B)  THE GOVERNMENT WAS NOT OBLIGED TO ARREST HOFFA WHEN IT FIRST HAD
PROBABLE CAUSE TO DO SO, THOUGH HIS ADMISSIONS WITHOUT COUNSEL AFTER
ARREST MIGHT HAVE BEEN BARRED, SINCE LAW ENFORCEMENT OFFICERS HAVE NO
DUTY TO HALT A CRIME INVESTIGATION WHEN THEY HAVE MINIMUM EVIDENCE TO
ESTABLISH PROBABLE CAUSE.  PP. 309-310. 

4.  THE USE OF A SECRET INFORMER IS NOT PER SE UNCONSTITUTIONAL, AND
THE USE OF PARTIN IN THIS CASE DID NOT VIOLATE DUE PROCESS
REQUIREMENTS, HIS VERACITY HAVING BEEN FULLY SUBJECT TO THE SAFEGUARDS
OF CROSS-EXAMINATION AND THE TRIAL COURT'S INSTRUCTIONS TO THE JURY. 
PP. 310-312. 

HOFFA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

OVER A PERIOD OF SEVERAL WEEKS IN THE LATE AUTUMN OF 1962 THERE TOOK
PLACE IN A FEDERAL COURT IN NASHVILLE, TENNESSEE, A TRIAL BY JURY IN
WHICH JAMES HOFFA WAS CHARGED WITH VIOLATING A PROVISION OF THE TAFT
HARTLEY ACT.  THAT TRIAL, KNOWN IN THE PRESENT RECORD AS THE TEST FLEET
TRIAL, ENDED WITH A HUNG JURY.  THE PETITIONERS NOW BEFORE US - JAMES
HOFFA, THOMAS PARKS, LARRY CAMPBELL, AND EWING KING - WERE TRIED AND
CONVICTED IN 1964 FOR ENDEAVORING TO BRIBE MEMBERS OF THAT JURY.  (FN1)
THE CONVICTIONS WERE AFFIRMED BY THE COURT OF APPEALS.  (FN2)  A
SUBSTANTIAL ELEMENT IN THE GOVERNMENT'S PROOF THAT LED TO THE
CONVICTIONS OF THESE FOUR PETITIONERS WAS CONTRIBUTED BY A WITNESS
NAMED EDWIN PARTIN, WHO TESTIFIED TO SEVERAL INCRIMINATING STATEMENTS
WHICH HE SAID PETITIONERS HOFFA AND KING HAD MADE IN HIS PRESENCE
DURING THE COURSE OF THE TEST FLEET TRIAL.  OUR GRANT OF CERTIORARI WAS
LIMITED TO THE SINGLE ISSUE OF WHETHER THE GOVERNMENT'S USE IN THIS
CASE OF EVIDENCE SUPPLIED BY PARTIN OPERATED TO INVALIDATE THESE
CONVICTIONS.  382 U.S. 1024. 

THE SPECIFIC QUESTION BEFORE US, AS FRAMED BY COUNSEL FOR THE
PETITIONERS, IS THIS: 

"WHETHER EVIDENCE OBTAINED BY THE GOVERNMENT BY MEANS OF DECEPTIVELY
PLACING A SECRET INFORMER IN THE QUARTERS AND COUNCILS OF A DEFENDANT
DURING ONE CRIMINAL TRIAL SO VIOLATES THE DEFENDANT'S FOURTH, FIFTH AND
SIXTH AMENDMENT RIGHTS THAT SUPPRESSION OF SUCH EVIDENCE IS REQUIRED IN
A SUBSEQUENT TRIAL OF THE SAME DEFENDANT ON A DIFFERENT CHARGE." 

AT THE THRESHOLD THE GOVERNMENT TAKES ISSUE WITH THE WAY THIS
QUESTION IS WORDED, REFUSING TO CONCEDE THAT IT "'PLACED' THE INFORMER
ANYWHERE, MUCH LESS THAT IT DID SO 'DECEPTIVELY.'"  IN THE VIEW WE TAKE
OF THE MATTER, HOWEVER, A RESOLUTION OF THIS VERBAL CONTROVERSY IS
UNNECESSARY TO A DECISION OF THE CONSTITUTIONAL ISSUES BEFORE US.  THE
BASIC FACTS ARE CLEAR ENOUGH, AND A LENGTHY DISCUSSION OF THE DETAILED
MINUTIAE TO WHICH A LARGE PORTION OF THE BRIEFS AND ORAL ARGUMENTS WAS
ADDRESSED WOULD SERVE ONLY TO DIVERT ATTENTION FROM THE REAL ISSUES
BEFORE US. 

THE CONTROLLING FACTS CAN BE BRIEFLY STATED.  THE TEST FLEET TRIAL,
IN WHICH JAMES HOFFA WAS THE SOLE INDIVIDUAL DEFENDANT, WAS IN PROGRESS
BETWEEN OCTOBER 22 AND DECEMBER 23, 1962, IN NASHVILLE, TENNESSEE. 
JAMES HOFFA WAS PRESIDENT OF THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS.  DURING THE COURSE OF THE TRIAL HE OCCUPIED A THREE-ROOM
SUITE IN THE ANDREW JACKSON HOTEL IN NASHVILLE.  ONE OF HIS CONSTANT
COMPANIONS THROUGHOUT THE TRIAL WAS THE PETITIONER KING, PRESIDENT OF
THE NASHVILLE LOCAL OF THE TEAMSTERS UNION.  EDWARD PARTIN, A RESIDENT
OF BATON ROUGE, LOUISIANA, AND A LOCAL TEAMSTERS UNION OFFICIAL THERE,
MADE REPEATED VISITS TO NASHVILLE DURING THE PERIOD OF THE TRIAL.  ON
THESE VISITS HE FREQUENTED THE HOFFA HOTEL SUITE, AND WAS CONTINUALLY
IN THE COMPANY OF HOFFA AND HIS ASSOCIATES, INCLUDING KING, IN AND
AROUND THE HOTEL SUITE, THE HOTEL LOBBY, THE COURTHOUSE, AND ELSEWHERE
IN NASHVILLE.  DURING THIS PERIOD PARTIN MADE FREQUENT REPORTS TO A
FEDERAL AGENT NAMED SHERIDAN CONCERNING CONVERSATIONS HE SAID HOFFA AND
KING HAD HAD WITH HIM AND WITH EACH OTHER, DISCLOSING ENDEAVORS TO
BRIBE MEMBERS OF THE TEST FLEET JURY.  PARTIN'S REPORTS AND HIS
SUBSEQUENT TESTIMONY AT THE PETITIONERS' TRIAL UNQUESTIONABLY
CONTRIBUTED, DIRECTLY OR INDIRECTLY, TO THE CONVICTIONS OF ALL FOUR OF
THE PETITIONERS.  (FN3) 

THE CHAIN OF CIRCUMSTANCES WHICH LED PARTIN TO BE IN NASHVILLE DURING
THE TEST FLEET TRIAL EXTENDED BACK AT LEAST TO SEPTEMBER OF 1962.  AT
THAT TIME PARTIN WAS IN JAIL IN BATON ROUGE ON A STATE CRIMINAL
CHARGE.  HE WAS ALSO UNDER A FEDERAL INDICTMENT FOR EMBEZZLING UNION
FUNDS, AND OTHER INDICTMENTS FOR STATE OFFENSES WERE PENDING AGAINST
HIM.  BETWEEN THAT TIME AND PARTIN'S INITIAL VISIT TO NASHVILLE ON
OCTOBER 22 HE WAS RELEASED ON BAIL ON THE STATE CRIMINAL CHARGE, AND
PROCEEDINGS UNDER THE FEDERAL INDICTMENT WERE POSTPONED.  ON OCTOBER 8,
PARTIN TELEPHONED HOFFA IN WASHINGTON, D.C., TO DISCUSS LOCAL UNION
MATTERS AND PARTIN'S DIFFICULTIES WITH THE AUTHORITIES.  IN THE COURSE
OF THIS CONVERSATION PARTIN ASKED IF HE COULD SEE HOFFA TO CONFER ABOUT
THESE PROBLEMS, AND HOFFA ACQUIESCED.  PARTIN AGAIN CALLED HOFFA ON
OCTOBER 18 AND ARRANGED TO MEET HIM IN NASHVILLE.  DURING THIS PERIOD
PARTIN ALSO CONSULTED ON SEVERAL OCCASIONS WITH FEDERAL LAW ENFORCEMENT
AGENTS, WHO TOLD HIM THAT HOFFA MIGHT ATTEMPT TO TAMPER WITH THE TEST
FLEET JURY, AND ASKED HIM TO BE ON THE LOOKOUT IN NASHVILLE FOR SUCH
ATTEMPTS AND TO REPORT TO THE FEDERAL AUTHORITIES ANY EVIDENCE OF
WRONGDOING THAT HE DISCOVERED.  PARTIN AGREED TO DO SO. 

AFTER THE TEST FLEET TRIAL WAS COMPLETED, PARTIN'S WIFE RECEIVED FOUR
MONTHLY INSTALLMENT PAYMENTS OF $300 FROM GOVERNMENT FUNDS, AND THE
STATE AND FEDERAL CHARGES AGAINST PARTIN WERE EITHER DROPPED OR NOT
ACTIVELY PURSUED. 

REVIEWING THESE CIRCUMSTANCES IN DETAIL, THE GOVERNMENT INSISTS THE
FAIR INFERENCE IS THAT PARTIN WENT TO NASHVILLE ON HIS OWN INITIATIVE
TO DISCUSS UNION BUSINESS AND HIS OWN PROBLEMS WITH HOFFA, THAT PARTIN
ULTIMATELY COOPERATED CLOSELY WITH FEDERAL AUTHORITIES ONLY AFTER HE
DISCOVERED EVIDENCE OF JURY TAMPERING IN THE TEST FLEET TRIAL, THAT THE
PAYMENTS TO PARTIN'S WIFE WERE SIMPLY IN PARTIAL REIMBURSEMENT OF
PARTIN'S SUBSEQUENT OUT-OF-POCKET EXPENSES, AND THAT THE FAILURE TO
PROSECUTE PARTIN ON THE STATE AND FEDERAL CHARGES HAD NO NECESSARY
CONNECTION WITH HIS SERVICES AS AN INFORMER.  THE FINDINGS OF THE TRIAL
COURT SUPPORT THIS VERSION OF THE FACTS.  (FN4)  AND THESE FINDINGS
WERE ACCEPTED BY THE COURT OF APPEALS AS "SUPPORTED BY SUBSTANTIAL
EVIDENCE."  349 F.2D, AT 36.  BUT WHETHER OR NOT THE GOVERNMENT
"PLACED" PARTIN WITH HOFFA IN NASHVILLE DURING THE TEST FLEET TRIAL, WE
PROCEED UPON THE PREMISE THAT PARTIN WAS A GOVERNMENT INFORMER FROM THE
TIME HE FIRST ARRIVED IN NASHVILLE ON OCTOBER 22, AND THAT THE
GOVERNMENT COMPENSATED HIM FOR HIS SERVICES AS SUCH.  IT IS UPON THAT
PREMISE THAT WE CONSIDER THE CONSTITUTIONAL ISSUES PRESENTED. 

BEFORE TURNING TO THOSE ISSUES WE MENTION AN ADDITIONAL PRELIMINARY
CONTENTION OF THE GOVERNMENT.  THE PETITIONER HOFFA WAS THE ONLY
INDIVIDUAL DEFENDANT IN THE TEST FLEET CASE, AND PARTIN HAD
CONVERSATIONS DURING THE TEST FLEET TRIAL ONLY WITH HIM AND WITH THE
PETITIONER KING.  SO FAR AS APPEARS, PARTIN NEVER SAW EITHER OF THE
OTHER TWO PETITIONERS DURING THAT PERIOD.  CONSEQUENTLY, THE GOVERNMENT
ARGUES THAT, OF THE FOUR PETITIONERS, ONLY HOFFA HAS STANDING TO RAISE
A CLAIM THAT HIS SIXTH AMENDMENT RIGHT TO COUNSEL IN THE TEST FLEET
TRIAL WAS IMPAIRED, AND ONLY HE AND KING HAVE STANDING WITH RESPECT TO
THE OTHER CONSTITUTIONAL CLAIMS.  CF. WONG SUN V. UNITED STATES, 371
U.S. 471, 487-488, 491-492; JONES V. UNITED STATES, 362 U.S. 257, 259
267.  IT IS CLEAR, ON THE OTHER HAND, THAT PARTIN'S REPORTS TO THE
AGENT SHERIDAN UNCOVERED LEADS THAT MADE POSSIBLE THE DEVELOPMENT OF
EVIDENCE AGAINST PETITIONERS PARKS AND CAMPBELL.  BUT WE NEED NOT
PURSUE THE NUANCES OF THESE "STANDING" QUESTIONS, BECAUSE IT IS EVIDENT
IN ANY EVENT THAT NONE OF THE PETITIONERS CAN PREVAIL UNLESS THE
PETITIONER HOFFA PREVAILS.  FOR THAT REASON, THE ENSUING DISCUSSION IS
CONFINED TO THE CLAIMS OF THE PETITIONER HOFFA (HEREINAFTER
PETITIONER), ALL OF WHICH HE CLEARLY HAS STANDING TO INVOKE. 

                 I. 

IT IS CONTENTED THAT ONLY BY VIOLATING THE PETITIONER'S RIGHTS UNDER
THE FOURTH AMENDMENT WAS PARTIN ABLE TO HEAR THE PETITIONER'S
INCRIMINATING STATEMENTS IN THE HOTEL SUITE, AND THAT PARTIN'S
TESTIMONY WAS THEREFORE INADMISSIBLE UNDER THE EXCLUSIONARY RULE OF
WEEKS V. UNITED STATES, 232 U.S. 383.  THE ARGUMENT IS THAT PARTIN'S
FAILURE TO DISCLOSE HIS ROLE AS A GOVERNMENT INFORMER VITIATED THE
CONSENT THAT THE PETITIONER GAVE TO PARTIN'S REPEATED ENTRIES INTO THE
SUITE, AND THAT BY LISTENING TO THE PETITIONER'S STATEMENTS PARTIN
CONDUCTED AN ILLEGAL "SEARCH" FOR VERBAL EVIDENCE. 

THE PRELIMINARY STEPS OF THIS ARGUMENT ARE ON SOLID GROUND.  A HOTEL
ROOM CAN CLEARLY BE THE OBJECT OF FOURTH AMENDMENT PROTECTION AS MUCH
AS A HOME OR AN OFFICE.  UNITED STATES V. JEFFERS, 342 U.S. 48.  THE
FOURTH AMENDMENT CAN CERTAINLY BE VIOLATED BY GUILEFUL AS WELL AS BY
FORCIBLE INTRUSIONS INTO A CONSTITUTIONALLY PROTECTED AREA.  GOULED V.
UNITED STATES, 255 U.S. 298.  AND THE PROTECTIONS OF THE FOURTH
AMENDMENT ARE SURELY NOT LIMITED TO TANGIBLES, BUT CAN EXTEND AS WELL
TO ORAL STATEMENTS.  SILVERMAN V. UNITED STATES, 365 U.S. 505. 

WHERE THE ARGUMENT FALLS IS IN ITS MISAPPREHENSION OF THE FUNDAMENTAL
NATURE AND SCOPE OF FOURTH AMENDMENT PROTECTION.  WHAT THE FOURTH
AMENDMENT PROTECTS IS THE SECURITY A MAN RELIED UPON WHEN HE PLACES
HIMSELF OR HIS PROPERTY WITHIN A CONSTITUTIONALLY PROTECTED AREA, BE IT
HIS HOME OR HIS OFFICE, HIS HOTEL ROOM OR HIS AUTOMOBILE.  (FN5)  THERE
HE IS PROTECTED FROM UNWARRANTED GOVERNMENTAL INTRUSION.  AND WHEN HE
PUTS SOMETHING IN HIS FILING CABINET, IN HIS DESK DRAWER, OR IN HIS
POCKET, HE HAS THE RIGHT TO KNOW IT WILL BE SECURE FROM AN UNREASONABLE
SEARCH OR AN UNREASONABLE SEIZURE.  SO IT WAS THAT THE FOURTH AMENDMENT
COULD NOT TOLERATE THE WARRANTLESS SEARCH OF THE HOTEL ROOM IN JEFFERS,
THE PURLOINING OF THE PETITIONER'S PRIVATE PAPERS IN GOULED, OR THE
SURREPTITIOUS ELECTRONIC SURVEILLANCE IN SILVERMAN.  COUNTLESS OTHER
CASES WHICH HAVE COME TO THIS COURT OVER THE YEARS HAVE INVOLVED A
MYRIAD OF DIFFERING FACTUAL CONTEXTS IN WHICH THE PROTECTIONS OF THE
FOURTH AMENDMENT HAVE BEEN APPROPRIATELY INVOKED.  NO DOUBT THE FUTURE
WILL BRING COUNTLESS OTHERS.  BY NOTHING WE SAY HERE DO WE EITHER
FORSEE OR FORECLOSE FACTUAL SITUATIONS TO WHICH THE FOURTH AMENDMENT
MAY BE APPLICABLE. 

IN THE PRESENT CASE, HOWEVER, IT IS EVIDENT THAT NO INTEREST
LEGITIMATELY PROTECTED BY THE FOURTH AMENDMENT IS INVOLVED.  IT IS
OBVIOUS THAT THE PETITIONER WAS NOT RELYING ON THE SECURITY OF HIS
HOTEL SUITE WHEN HE MADE THE INCRIMINATING STATEMENTS TO PARTIN OR IN
PARTIN'S PRESENCE.  PARTIN DID NOT ENTER THE SUITE BY FORCE OR BY
STEALTH.  HE WAS NOT A SURREPTITIOUS EAVESDROPPER.  PARTIN WAS IN THE
SUITE BY INVITATION, AND EVERY CONVERSATION WHICH HE HEARD WAS EITHER
DIRECTED TO HIM OR KNOWINGLY CARRIED ON IN HIS PRESENCE.  THE
PETITIONER, IN A WORD, WAS NOT RELYING ON THE SECURITY OF THE HOTEL
ROOM; HE WAS RELYING UPON HIS MISPLACED CONFIDENCE THAT PARTIN WOULD
NOT REVEAL HIS WRONGDOING.  (FN6)  AS COUNSEL FOR THE PETITIONER
HIMSELF POINTS OUT, SOME OF THE COMMUNICATIONS WITH PARTIN DID NOT TAKE
PLACE IN THE SUITE AT ALL, BUT IN THE "HALL OF THE HOTEL," IN THE
"ANDREW JACKSON HOTEL LOBBY," AND "AT THE COURTHOUSE." 

NEITHER THIS COURT NOR ANY MEMBER OF IT HAS EVER EXPRESSED THE VIEW
THAT THE FOURTH AMENDMENT PROTECTS A WRONGDOER'S MISPLACED BELIEF THAT
A PERSON TO WHOM HE VOLUNTARILY CONFIDES HIS WRONGDOING WILL NOT REVEAL
IT.  INDEED, THE COURT UNANIMOUSLY REJECTED THAT VERY CONTENTION LESS
THAN FOUR YEARS AGO IN LOPEZ V. UNITED STATES, 373 U.S. 427.  IN THAT
CASE THE PETITIONER HAD BEEN CONVICTED OF ATTEMPTED BRIBERY OF AN
INTERNAL REVENUE AGENT NAMED DAVIS.  THE COURT WAS DIVIDED WITH REGARD
TO THE ADMISSIBILITY OF AN INCRIMINATING CONVERSTATION LOPEZ HAD HAD IN
HIS PRIVATE OFFICE WITH DAVIS.  BUT THERE WAS NO DISSENT FROM THE VIEW
THAT TESTIMONY ABOUT THE CONVERSATION BY DAVIS HIMSELF WAS CLEARLY
ADMISSIBLE. 

AS THE COURT PUT IT, "DAVIS WAS NOT GUILTY OF AN UNLAWFUL INVASION OF
PETITIONER'S OFFICE SIMPLY BECAUSE HIS APPARENT WILLINGNESS TO ACCEPT A
BRIBE WAS NOT REAL.  COMPARE WONG SUN V. UNITED STATES, 371 U.S. 471. 
HE WAS IN THE OFFICE WITH PETITIONER'S CONSENT, AND WHILE THERE HE DID
NOT VIOLATE THE PRIVACY OF THE OFFICE BY SEIZING SOMETHING
SURREPTITIOUSLY WITHOUT PETITIONER'S KNOWLEDGE.  COMPARE GOULED V.
UNITED STATES, SUPRA.  THE ONLY EVIDENCE OBTAINED CONSISTED OF
STATEMENTS MADE BY LOPEZ TO DAVIS, STATEMENTS WHICH LOPEZ KNEW FULL
WELL COULD BE USED AGAINST HIM BY DAVIS IF HE WISHED  ...  ."  373
U.S., AT 438.  IN THE WORDS OF THE DISSENTING OPINION IN LOPEZ, "THE
RISK OF BEING OVERHEARD BY AN EAVESDROPPER OR BETRAYED BY AN INFORMER
OR DECIEVED AS TO THE IDENTITY OF ONE WITH WHOM ONE DEALS IS PROBABLY
INHERENT IN THE CONDITIONS OF HUMAN SOCIETY.  IT IS THE KIND OF RISK WE
NECESSARILY ASSUME WHENEVER WE SPEAK."  ID., AT 465.  SEE ALSO LEWIS V.
UNITED STATES, ANTE, P. 206. 

ADHERING TO THESE VIEWS, WE HOLD THAT NO RIGHT PROTECTED BY THE
FOURTH AMENDMENT WAS VIOLATED IN THE PRESENT CASE. 

   II. 

THE PETITIONER ARGUES THAT HIS RIGHT UNDER THE FIFTH AMENDMENT NOT TO
"BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF" WAS
VIOLATED BY THE ADMISSION OF PARTIN'S TESTIMONY.  THE CLAIM IS WITHOUT
MERIT. 

THERE HAVE BEEN SHARPLY DIFFERING VIEWS WITHIN THE COURT AS TO THE
ULTIMATE REACH OF THE FIFTH AMENDMENT RIGHT AGAINST COMPULSORY SELF
INCRIMINATION.  SOME OF THOSE DIFFERENCES WERE AIRED LAST TERM IN
MIRANDA V. ARIZONA, 384 U.S. 436, 499, 504, 526.  BUT SINCE AT LEAST AS
LONG AGO AS 1807, WHEN CHIEF JUSTICE MARSHALL FIRST GAVE ATTENTION TO
THE MATTER IN THE TRIAL OF AARON BURR,  (FN7) ALL HAVE AGREED THAT A
NECESSARY ELEMENT OF COMPULSORY SELF-INCRIMINATION IS SOME KIND OF
COMPULSION.  THUS, IN THE MIRANDA CASE, DEALING WITH THE FIFTH
AMENDMENT'S IMPACT UPON POLICE INTERROGATION OF PERSONS IN CUSTODY, THE
COURT PREDICATED ITS DECISION UPON THE CONCLUSION "THAT WITHOUT PROPER
SAFEGUARDS THE PROCESS OF IN-CUSTODY INTERROGATION OF PERSONS SUSPECTED
OR ACCUSED OF CRIME CONTAINS INHERENTLY COMPELLING PRESSURES WHICH WORK
TO UNDERMINE THE INDIVIDUAL'S WILL TO RESIST AND TO COMPEL HIM TO SPEAK
WHERE HE WOULD NOT OTHERWISE DO SO FREELY ...  ."  384 U.S., AT 467. 
IN THE PRESENT CASE NO CLAIM HAS BEEN OR COULD BE MADE THAT THE
PETITIONER'S INCRIMINATING STATEMENTS WERE THE PRODUCT OF ANY SORT OF
COERCION, LEGAL OR FACTUAL.  THE PETITIONER'S CONVERSATIONS WITH PARTIN
AND IN PARTIN'S PRESENCE WERE WHOLLY VOLUNTARY.  FOR THAT REASON, IF
FOR NO OTHER, IT IS CLEAR THAT NO RIGHT PROTECTED BY THE FIFTH
AMENDMENT PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION WAS VIOLATED
IN THIS CASE. 

                                       III. 

THE PETITIONER MAKES TWO SEPARATE CLAIMS UNDER THE SIXTH AMENDMENT,
AND WE GIVE THEM SEPARATE CONSIDERATION. 

                             A. 

DURING THE COURSE OF THE TEST FLEET TRIAL THE PETITIONER'S LAWYERS
USED HIS SUITE AS A PLACE TO CONFER WITH HIM AND WITH EACH OTHER, TO
INTERVIEW WITNESSES, AND TO PLAN THE FOLLOWING DAY'S TRIAL STRATEGY. 
THEREFORE, ARGUES THE PETITIONER, PARTIN'S PRESENCE IN AND AROUND THE
SUITE VIOLATED THE PETITIONER'S SIXTH AMENDMENT RIGHT TO COUNSEL,
BECAUSE AN ESSENTIAL INGREDIENT THEREOF IS THE RIGHT OF A DEFENDANT AND
HIS COUNSEL TO PREPARE FOR TRIAL WITHOUT INTRUSION UPON THEIR
CONFIDENTIAL RELATIONSHIP BY AN AGENT OF THE GOVERNMENT, THE
DEFENDANT'S TRIAL ADVERSARY.  SINCE PARTIN'S PRESENCE IN THE SUITE THUS
VIOLATED THE SIXTH AMENDMENT, THE AGRUMENT CONTINUES, ANY EVIDENCE
ACQUIRED BY REASON OF HIS PRESENCE THERE WAS CONSTITUTIONALLY TAINTED
AND THEREFORE INADMISSIBLE AGAINST THE PETITIONER IN THIS CASE.  WE
REJECT THIS ARGUMENT. 

IN THE FIRST PLACE, IT IS FAR FROM CLEAR TO WHAT EXTENT PARTIN WAS
PRESENT AT CONVERSATIONS OR CONFERENCES OF THE PETITIONER'S COUNSEL. 
SEVERAL OF THE PETITIONER'S TEST FLEET LAWYERS TESTIFIED AT THE HEARING
ON THE MOTION TO SUPPRESS PARTIN'S TESTIMONY IN THE PRESENT CASE.  MOST
OF THEM SAID THAT PARTIN HAD HEARD OR HAD BEEN IN A POSITION TO HEAR AT
LEAST SOME OF THE LAWYERS' DISCUSSIONS DURING THE TEST FLEET TRIAL.  ON
THE OTHER HAND, PARTIN HIMSELF TESTIFIED THAT THE LAWYERS "WOULD MOVE
YOU OUT" WHEN THEY WANTED TO DISCUSS THE CASE, AND DENIED THAT HE MADE
ANY EFFORT TO "GET INTO OR BE PRESENT AT ANY CONVERSATIONS BETWEEN
LAWYERS OR ANYTHING OF THAT SORT," OTHER THAN ENGAGING IN SUCH
BANALITIES AS "HOW THINGS LOOKED," OR "HOW DOES IT LOOK?"  HE SAID HE
MIGHT HAVE HEARD SOME OF THE LAWYERS' CONVERSATIONS, BUT HE DIDN'T KNOW
WHAT THEY WERE TALKING ABOUT, "BECAUSE I WASN'T INTERESTED IN WHAT THEY
HAD TO SAY ABOUT THE CASE."  HE TESTIFIED THAT HE DID NOT REPORT ANY OF
THE LAWYERS' CONVERSATIONS TO SHERIDAN, BECAUSE THE LATTER "WASN'T
INTERESTED IN WHAT THE ATTORNEYS SAID."  PARTIN'S TESTIMONY WAS LARGELY
CONFIRMED BY SHERIDAN.  SHERIDAN DID TESTIFY, HOWEVER, TO ONE OCCASION
WHEN PARTIN TOLD HIM ABOUT A GROUP OF PROSPECTIVE CHARACTER WITNESSES
BEING INTERVIEWED IN THE SUITE BY ONE OF THE PETITIONER'S LAWYERS, WHO
"WAS GOING OVER" SOME WRITTEN "QUESTIONS AND ANSWERS" WITH THEM.  THIS
INFORMATION WAS EVIDENTLY RELAYED BY SHERIDAN TO THE CHIEF GOVERNMENT
ATTORNEY AT THE TEST FLEET TRIAL.  (FN8) 

THE DISTRICT COURT IN THE PRESENT CASE APPARENTLY CREDITED PARTIN'S
TESTIMONY, FINDING "THERE HAS BEEN NO INTERFERENCE BY THE GOVERNMENT
WITH ANY ATTORNEY-CLIENT RELATIONSHIP OF ANY DEFENDANT IN THIS CASE." 
THE COURT OF APPEALS ACCEPTED THIS FINDING.  349 F.2D, AT 36.  IN VIEW
OF SHERIDAN'S TESTIMONY ABOUT PARTIN'S REPORT OF THE INTERVIEWS WITH
THE PROSPECTIVE CHARACTER WITNESSES, HOWEVER, WE PROCEED HERE ON THE
HYPOTHESIS THAT PARTIN DID OBSERVE AND REPORT TO SHERIDAN AT LEAST SOME
OF THE ACTIVITIES OF DEFENSE COUNSEL IN THE TEST FLEET TRIAL. 

THE PROPOSITION THAT A SURREPTITIOUS INVASION BY A GOVERNMENT AGENT
INTO THE LEGAL CAMP OF THE DEFENSE MAY VIOLATE THE PROTECTION OF THE
SIXTH AMENDMENT HAS FOUND EXPRESSION IN TWO CASES DECIDED BY THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, CALDWELL V. UNITED
STATES, 92 U.S. APP. D.C. 355, 205 F.2D, 879, AND COPLON V. UNITED
STATES, 89 U.S. APP. D.C. 103, 191 F.2D 749.  BOTH OF THOSE CASES DEALT
WITH GOVERNMENT INTRUSION OF THE GROSSEST KIND UPON THE CONFIDENTIAL
RELATIONSHIP BETWEEN THE DEFENDANT AND HIS COUNSEL.  IN COPLON, THE
DEFENDANT ALLEGED THAT GOVERNMENT AGENTS DELIBERATELY INTERCEPTED
TELEPHONE CONSULTATIONS BETWEEN THE DEFENDANT AND HER LAWYER BEFORE AND
DURING TRIAL.  IN CALDWELL, THE AGENT, "IN HIS DUAL CAPACITY AS DEFENSE
ASSISTANT AND GOVERNMENT AGENT  ...  GAINED FREE ACCESS TO THE PLANNING
OF THE DEFENSE  ...  .  NEITHER HIS DEALINGS WITH THE DEFENSE NOR HIS
REPORTS TO THE PROSECUTION WERE LIMITED TO THE PROPOSED UNLAWFUL ACTS
OF THE DEFENSE:  THEY COVERED MANY MATTERS CONNECTED WITH THE IMPENDING
TRIAL."  92 U.S. APP. D.C., AT 356, 205 F.2D, AT 880. 

WE MAY ASSUME THAT THE COPLON AND CALDWELL CASES WERE RIGHTLY
DECIDED, AND FURTHER ASSUME, WITHOUT DECIDING, THAT THE GOVERNMENT'S
ACTIVITIES DURING THE TEST FLEET TRIAL WERE SUFFICIENTLY SIMILAR TO
WHAT WENT ON IN COPLON AND CALDWELL TO INVOKE THE RULE OF THOSE
DECISIONS.  CONSEQUENTLY, IF THE TEST FLEET TRIAL HAD RESULTED IN A
CONVICTION INSTEAD OF A HUNG JURY, THE CONVICTION WOULD PRESUMPTIVELY
HAVE BEEN SET ASIDE AS CONSTITUTIONALLY DEFECTIVE.  CF.  BLACK V.
UNITED STATES, ANTE, P. 26. 

BUT A HOLDING THAT IT FOLLOWS FROM THIS PRESUMPTION THAT THE
PETITIONER'S CONVICTION IN THE PRESENT CASE SHOULD BE SET ASIDE WOULD
BE BOTH UNPRECEDENTED AND IRRATIONAL.  IN COPLON AND IN CALDWELL, THE
COURT OF APPEALS HELD THAT THE GOVERNMENT'S INTRUSION UPON THE
DEFENDANT'S RELATIONSHIP WITH HIS LAWYER "INVALIDATES THE TRIAL AT
WHICH IT OCCURRED."  89 U.S. APP. D.C., AT 114, 191 F.2D, AT 759; 92
U.S. APP. D.C., AT 357, 205 F. D, AT 881.  IN BOTH OF THOSE CASES THE
COURT DIRECTED A NEW TRIAL,  (FN9)  AND THE SECOND TRIAL IN CALDWELL
RESULTED IN A CONVICTION WHICH THIS COURT DECLINED TO REVIEW.  95 U.S.
APP. D.C.  35, 218 F.2D 370, 349 U.S. 930.  THE ARGUMENT HERE,
THEREFORE, GOES FAR BEYOND ANYTHING DECIDED IN CALDWELL OR IN COPLON. 
FOR IF THE PETITIONER'S ARGUMENT WERE ACCEPTED, NOT ONLY COULD THERE
HAVE BEEN NO NEW CONVICTION ON THE EXISTING CHARGES IN CALDWELL, BUT
NOT EVEN A CONVICTION ON OTHER AND DIFFERENT CHARGES AGAINST THE SAME
DEFENDANT. 

IT IS POSSIBLE TO IMAGINE A CASE IN WHICH THE PROSECUTION MIGHT SO
PERVASIVELY INSINUATE ITSELF INTO THE COUNCILS OF THE DEFENSE AS TO
MAKE A NEW TRIAL ON THE SAME CHARGES IMPERMISSIBLE UNDER THE SIXTH
AMENDMENT.  (FN10)  BUT EVEN IF IT WERE FURTHER ARGUABLE THAT A
SITUATION COULD BE HYPOTHESIZED IN WHICH THE GOVERNMENT'S PREVIOUS
ACTIVITIES IN UNDERMINING A DEFENDANT'S SIXTH AMENDMENT RIGHTS AT ONE
TRIAL WOULD MAKE EVIDENCE OBTAINED THEREBY INADMISSIBLE IN A DIFFERENT
TRIAL ON OTHER CHARGES, THE CASE NOW BEFORE US DOES NOT REMOTELY
APPROACH SUCH A SITUATION. 

THIS IS SO BECAUSE OF THE CLINCHING BASIC FACT IN THE PRESENT CASE
THAT NONE OF THE PETITIONER'S INCRIMINATING STATEMENTS WHICH PARTIN
HEARD WERE MADE IN THE PRESENCE OF COUNSEL, IN THE HEARING OF COUNSEL,
OR IN CONNECTION IN ANY WAY WITH THE LEGITIMATE DEFENSE OF THE TEST
FLEET PROSECUTION.  THE PETITIONER'S STATEMENTS RELATED TO THE
COMMISSION OF A QUITE SEPARATE OFFENSE - ATTEMPTED BRIBERY OF JURORS -
AND THE STATEMENTS WERE MADE TO PARTIN OUT OF THE PRESENCE OF ANY
LAWYERS. 

EVEN ASSUMING, THEREFORE, AS WE HAVE, THAT THERE MIGHT HAVE BEEN A
SIXTH AMENDMENT VIOLATION WHICH MIGHT HAVE MADE INVALID A CONVICTION,
IF THERE HAD BEEN ONE, IN THE TEST FLEET CASE, THE EVIDENCE SUPPLIED BY
PARTIN IN THE PRESENT CASE WAS IN NO SENSE THE "FRUIT" OF ANY SUCH
VIOLATION.  IN WONG SUN V. UNITED STATES, 371 U.S. 471, A CASE
INVOLVING EXCLUSION OF EVIDENCE UNDER THE FOURTH AMENDMENT, THE COURT
STATED THAT "THE MORE APT QUESTION IN SUCH A CASE IS 'WHETHER, GRANTING
ESTABLISHMENT OF THE PRIMARY ILLEGALITY, THE EVIDENCE TO WHICH INSTANT
OBJECTION IS MADE HAS BEEN COME AT BY EXPLOITATION OF THAT ILLEGALITY
OR INSTEAD BY MEANS SUFFICIENTLY DISTINGUISHABLE TO BE PURGED OF THE
PRIMARY TAINT.'  MAGUIRE, EVIDENCE OF GUILT, 221 (1959)."  371 U.S., AT
488. 

EVEN UPON THE PREMISE THAT THIS SAME STRICT STANDARD OF EXCLUDABILITY
SHOULD APPLY UNDER THE SIXTH AMENDMENT - A QUESTION WE NEED NOT DECIDE
IT IS CLEAR THAT PARTIN'S EVIDENCE IN THIS CASE WAS NOT THE
CONSEQUENCE OF ANY "EXPLOITATION" OF A SIXTH AMENDMENT VIOLATION.  THE
PETITIONER'S INCRIMINATING STATEMENTS, ALL OF THEM MADE OUT OF THE
PRESENCE OR HEARING OF ANY OF THE PETITIONER'S COUNSEL, EMBODIED THE
VERY ANTITHESIS OF ANY LEGITIMATE DEFENSE IN THE TEST FLEET TRIAL. 

B. 

THE PETITIONER'S SECOND ARGUMENT UNDER THE SIXTH AMENDMENT NEEDS NO
EXTENDED DISCUSSION.  THAT ARGUMENT GOES AS FOLLOWS:  NOT LATER THAN
OCTOBER 25, 1962, THE GOVERNMENT HAD SUFFICIENT GROUND FOR TAKING THE
PETITIONER INTO CUSTODY AND CHARGING HIM WITH ENDEAVORS TO TAMPER WITH
THE TEST FLEET JURY.  HAD THE GOVERNMENT DONE SO, IT COULD NOT HAVE
CONTINUED TO QUESTION THE PETITIONER WITHOUT OBSERVANCE OF HIS SIXTH
AMENDMENT RIGHT TO COUNSEL.  MASSIAH V. UNITED STATES, 377 U.S. 201;
ESCOBEDO V. ILLINOIS, 378 U.S. 478.  THEREFORE, THE ARGUMENT CONCLUDES,
EVIDENCE OF STATEMENTS MADE BY THE PETITIONER SUBSEQUENT TO OCTOBER 25
WAS INADMISSIBLE, BECAUSE THE GOVERNMENT ACQUIRED THAT EVIDENCE ONLY BY
FLOUTING THE PETITIONER'S SIXTH AMENDMENT RIGHT TO COUNSEL. 

NOTHING IN MASSIAH, IN ESCOBEDO, OR IN ANY OTHER CASE THAT HAS COME
TO OUR ATTENTION, EVEN REMOTELY SUGGESTS THIS NOVEL AND PARADOXICAL
CONSTITUTIONAL DOCTRINE, AND WE DECLINE TO ADOPT IT NOW.  THERE IS NO
CONSTITUTIONAL RIGHT TO BE ARRESTED.  (FN11)  THE POLICE ARE NOT
REQUIRED TO GUESS AT THEIR PERIL THE PRECISE MOMENT AT WHICH THEY HAVE
PROBABLE CAUSE TO ARREST A SUSPECT, RISKING A VIOLATION OF THE FOURTH
AMENDMENT IF THEY ACT TOO SOON, AND A VIOLATION OF THE SIXTH AMENDMENT
IF THEY WAIT TOO LONG.  LAW ENFORCEMENT OFFICERS ARE UNDER NO
CONSTITUTIONAL DUTY TO CALL A HALT TO A CRIMINAL INVESTIGATION THE
MOMENT THEY HAVE THE MINIMUM EVIDENCE TO ESTABLISH PROBABLE CAUSE, A
QUANTUM OF EVIDENCE WHICH MAY FALL FAR SHORT OF THE AMOUNT NECESSARY TO
SUPPORT A CRIMINAL CONVICTION. 

                      IV. 

FINALLY, THE PETITIONER CLAIMS THAT EVEN IF THERE WAS NO VIOLATION -
"AS SEPARATELY MEASURED BY EACH SUCH AMENDMENT" - OF THE FOURTH
AMENDMENT, THE COMPULSORY SELF-INCRIMINATION CLAUSE OF THE FIFTH
AMENDMENT, OR OF THE SIXTH AMENDMENT IN THIS CASE, THE JUDGMENT OF
CONVICTION MUST NONETHELESS BE REVERSED.  THE ARGUMENT IS BASED UPON
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  THE "TOTALITY" OF THE
GOVERNMENT'S CONDUCT DURING THE TEST FLEET TRIAL OPERATED, IT IS SAID,
TO " 'OFFEND THOSE CANONS OF DECENCY AND FAIRNESS WHICH EXPRESS THE
NOTIONS OF JUSTICE OF ENGLISH-SPEAKING PEOPLES EVEN TOWARD THOSE
CHARGED WITH THE MOST HEINOUS OFFENSES' (ROCHIN V. CALIFORNIA, 342 U.S.
165, 169)." 

THE ARGUMENT BOILS DOWN TO A GENERAL ATTACK UPON THE USE OF A
GOVERNMENT INFORMER AS "A SHABBY THING IN ANY CASE," AND TO THE CLAIM
THAT IN THE CIRCUMSTANCES OF THIS PARTICULAR CASE THE RISK THAT
PARTIN'S TESTIMONY MIGHT BE PERJURIOUS WAS VERY HIGH.  INSOFAR AS THE
GENERAL ATTACK UPON THE USE OF INFORMERS IS BASED UPON HISTORIC
"NOTIONS" OF "ENGLISH-SPEAKING PEOPLES," IT IS WITHOUT HISTORICAL
FOUNDATION.  IN THE WORDS OF JUDGE LEARNED HAND, "COURTS HAVE
COUNTENANCED THE USE OF INFORMERS FROM TIME IMMEMORIAL; IN CASES OF
CONSPIRACY, OR IN OTHER CASES WHEN THE CRIME CONSISTS OF PREPARING FOR
ANOTHER CRIME, IT IS USUALLY NECESSARY TO RELY UPON THEM OR UPON
ACCOMPLICES BECAUSE THE CRIMINALS WILL ALMOST CERTAINLY PROCEED
COVERTLY  ...  ."  UNITED STATES V. DENNIS, 183 F.2D 201, AT 224. 

THIS IS NOT TO SAY THAT A SECRET GOVERNMENT INFORMER IS TO THE
SLIGHTEST DEGREE MORE FREE FROM ALL RELEVANT CONSTITUTIONAL
RESTRICTIONS THAN IS ANY OTHER GOVERNMENT AGENT.  SEE MASSIAH V. UNITED
STATES, 377 U.S. 201.  IT IS TO SAY THAT THE USE OF SECRET INFORMERS IS
NOT PER SE UNCONSTITUTIONAL. 

THE PETITIONER IS QUITE CORRECT IN THE CONTENTION THAT PARTIN,
PERHAPS EVEN MORE THAN MOST INFORMERS, MAY HAVE HAD MOTIVES TO LIE. 
BUT IT DOES NOT FOLLOW THAT HIS TESTIMONY WAS UNTRUE, NOR DOES IT
FOLLOW THAT HIS TESTIMONY WAS CONSTITUTIONALLY INADMISSIBLE.  THE
ESTABLISHED SAFEGUARDS OF THE ANGLO-AMERICAN LEGAL SYSTEM LEAVE THE
VERACITY OF A WITNESS TO BE TESTED BY CROSS-EXAMINATION, AND THE
CREDIBILITY OF HIS TESTIMONY TO BE DETERMINED BY A PROPERLY INSTRUCTED
JURY.  AT THE TRIAL OF THIS CASE, PARTIN WAS SUBJECTED TO RIGOROUS
CROSS-EXAMINATION, AND THE EXTENT AND NATURE OF HIS DEALINGS WITH
FEDERAL AND STATE AUTHORITIES WERE INSISTENTLY EXPLORED.  (FN12)  THE
TRIAL JUDGE INSTRUCTED THE JURY, BOTH SPECIFICALLY (FN13) AND
GENERALLY, (FN14) WITH REGARD TO ASSESSING PARTIN'S CREDIBILITY.  THE
CONSTITUTION DOES NOT REQUIRE US TO UPSET THE JURY'S VERDICT. 
AFFIRMED. 

FN1  PETITIONERS HOFFA, PARKS, AND CAMPBELL WERE CONVICTED UNDER 18
U.S.C. SEC 1503 FOR ENDEAVORING CORRUPTLY TO INFLUENCE TEST FLEET JUROR
GRATIN FIELDS.  PETITIONERS HOFFA AND KING WERE CONVICTED OF A SIMILAR
OFFENSE INVOLVING TEST FLEET JUROR MRS. JAMES M. PASCHAL. 

FN2  349 F.2D 20.    FN3  PARTIN TESTIFIED AT THE TRIAL OF THIS CASE
THAT PETITIONERS HOFFA AND KING HAD MADE THE FOLLOWING STATEMENTS
DURING THE COURSE OF THE TEST FLEET TRIAL: 

ON OCTOBER 22, THE DAY PARTIN FIRST ARRIVED IN NASHVILLE, KING TOLD
HIM THAT A MEETING HAD BEEN "SET UP ON THE JURY THAT NIGHT."  THAT
EVENING HOFFA TOLD PARTIN THAT HE WANTED PARTIN TO STAY IN NASHVILLE IN
ORDER TO CALL ON SOME PEOPLE.  HOFFA EXPLAINED "THAT THEY WAS GOING TO
GET TO ONE JUROR OR TRY TO GET TO A FEW SCATTERED JURORS AND TAKE THEIR
CHANCES."  THE NEXT DAY PARTIN WAS TOLD BY HOFFA THAT HOFFA MIGHT WANT
HIM "TO PASS SOMETHING FOR HIM."  AS HOFFA SAID THIS, HE HIT HIS REAR
POCKET WITH HIS HAND.  ON OCTOBER 25, THE DAY AFTER TEST FLEET JUROR
JAMES TIPPENS HAD REPORTED TO THE TRIAL JUDGE THAT HE HAD BEEN
APPROACHED WITH A BRIBE OFFER, PARTIN ASKED HOFFA ABOUT HIS WANTING
PARTIN TO "PASS SOMETHING."  HOFFA REPLIED, "THE DIRTY BASTARDS WENT IN
AND TOLD THE JUDGE THAT HIS NEIGHBOR HAD OFFERED HIM $10,000," AND
ADDED, "WE ARE GOING TO HAVE TO LAY LOW FOR A FEW DAYS."  KING TOLD
PARTIN ON OCTOBER 26 THAT HE INTENDED TO INFLUENCE A FEMALE JUROR, MRS.
PASCHAL, IN HOFFA'S FAVOR, AND ADDED THAT THE JUROR AND HER HUSBAND, A
HIGHWAY PATROLMAN, "LOVED MONEY, AND $10,000.00 IS A LOT OF MONEY." 
HOFFA INFORMED PARTIN ON OCTOBER 29 THAT HE "WOULD PAY 15 OR $20,000,
WHATEVER - WHATEVER IT COST TO GET TO THE JURY."  ON NOVEMBER 5, IN
PARTIN'S PRESENCE, HOFFA BERATED KING FOR FAILING IN HIS PROMISE TO
"GET THE PATROLMAN."  KING THEN TOLD PARTIN THAT HE WAS ARRANGING A
MEETING WITH THE HIGHWAY PATROLMAN, BUT ON NOVEMBER 7 KING ADMITTED TO
PARTIN THAT HE HAD NOT YET CONTACTED THE HIGHWAY PATROLMAN AND THAT
HOFFA HAD BEEN COMPLAINING "ABOUT NOT GETTING TO THE JURY."  HOFFA
CRITICIZED KING IN THE PRESENCE OF PARTIN ON NOVEMBER 14 FOR "NOT
MAKING A CONTACT LIKE HE TOLD HIM HE WOULD," ADDING THAT HE "WANTED
SOME INSURANCE."  LATER THE SAME DAY, KING TOLD PARTIN THAT HE HAD
ARRANGED TO MEET WITH THE HIGHWAY PATROLMAN, AND THAT HE HAD PREPARED A
COVER STORY TO ALLAY SUSPICION.  ON NOVEMBER 15 HOFFA ASKED KING IN
PARTIN'S PRESENCE WHETHER HE HAD "MADE THE CONTACTS."  KING RELATED TO
PARTIN ON NOVEMBER 20 A MEETING THAT KING HAD HAD WITH JUROR PASCHAL'S
HUSBAND, STATING THAT THE HIGHWAY PATROLMAN WANTED A PROMOTION RATHER
THAN MONEY.  THE SAME DAY HOFFA TOLD PARTIN THAT HE WAS DISTURBED
BECAUSE "THE HIGHWAY PATROLMAN WOULDN'T TAKE THE MONEY," ADDING THAT IF
HE HAD "TAKEN THE MONEY IT WOULD HAVE PINNED HIM DOWN AND HE COULDN'T
HAVE BACKED UP." 

THERE WAS OTHER EVIDENCE AT THE TRIAL THAT PETITIONER CAMPBELL, A
UNION ASSOCIATE OF HOFFA'S, AND PETITIONER PARKS, CAMPBELL'S UNCLE, HAD
MADE BRIBE OFFERS TO GRATIN FIELDS, A NEGRO JUROR.  ON NOVEMBER 7,
ACCORDING TO PARTIN, HOFFA TOLD PARTIN THAT HE HAD "THE COLORED MALE
JUROR IN HIS HIP POCKET," AND THAT CAMPBELL "TOOK CARE OF IT."  HOFFA
TOLD PARTIN THAT CAMPBELL, A NEGRO, WAS RELATED TO FIELDS, AND THAT
WHILE FIELDS HAD REFUSED THE BRIBE HE WOULD NOT "GO AGAINST HIS OWN
PEOPLE."  HOFFA CONCLUDED, "IT LOOKS LIKE OUR BEST BET IS A HUNG JURY
UNLESS WE CAN GET TO THE FOREMAN OF THE JURY.  IF THEY HAVE A HUNG
JURY, IT WILL BE THE SAME AS ACQUITTAL BECAUSE THEY WILL NEVER TRY THE
CASE AGAIN." 

FN4  IN DENYING THE DEFENSE MOTION TO SUPPRESS PARTIN'S TESTIMONY,
THE TRIAL COURT STATED: "I WOULD FURTHER FIND THAT THE GOVERNMENT DID
NOT PLACE THIS WITNESS MR. PARTIN IN THE DEFENDANTS' MIDST OR HAVE
ANYTHING TO DO WITH PLACING HIM IN THEIR MIDST, RATHER THAT HE WAS
KNOWINGLY AND VOLUNTARILY PLACED IN THEIR MIDST BY ONE OF THE
DEFENDANTS." 

THE TRIAL COURT'S MEMORANDUM DENYING A MOTION FOR A NEW TRIAL
CONTAINED THE FOLLOWING STATEMENT: 

"THE ACTION OF THE COURT IN DENYING THE MOTIONS OF THE DEFENDANTS TO
SUPPRESS THE TESTIMONY OF THE WITNESS PARTIN IS COMPLAINED OF IN
GROUNDS 41 AND 42 OF THE MOTIONS FOR A NEW TRIAL.  IT IS CONTENDED THAT
ONE OF THE FINDINGS OF FACT OF THE COURT WITH RESPECT TO THE MOTION TO
SUPPRESS WAS RENDERED INCORRECT BY SUBSEQUENT EVIDENCE IN THE CASE.  IT
IS CONTENDED THAT THE TELEPHONE TRANSCRIPTIONS OF THE TELEPHONE CALLS
BETWEEN PARTIN AND HOFFA ON OCTOBER 8 AND 18, 1962, ESTABLISHED THAT
THE DEFENDANT HOFFA DID NOT INVITE PARTIN TO COME TO NASHVILLE.  THE
TELEPHONE TRANSCRIPTIONS REFLECT THAT THE DEFENDANT HOFFA AGREED TO AN
APPOINTMENT TO SEE PARTIN IN NASHVILLE.   EVEN IF THE DEFENDANT HOFFA
DID NOT INITIATE THE INVITATION OF PARTIN TO COME TO NASHVILLE, BUT
RATHER PARTIN SOLICITED THE INVITATION, THIS DOES NOT IN ANY WAY ALTER
THE COURT'S FINDING THAT THE GOVERNMENT DID NOT PLACE OR KEEP PARTIN
WITH THE DEFENDANT HOFFA  ...  .  THE GOVERNMENT REQUESTED OF PARTIN
ONLY THAT HE REPORT INFORMATION OF JURY TAMPERING OR OTHER ILLEGAL
ACTIVITY OF WHICH HE BACAME AWARE.  PARTIN VOLUNTARILY FURNISHED SUCH
INFORMATION.  HE REMAINED IN NASHVILLE OR RETURNED TO NASHVILLE EITHER
AT THE REQUEST OR WITH THE CONSENT OF THE DEFENDANT HOFFA AND NOT AT
THE INSTRUCTION OF THE GOVERNMENT." 

FN5  WE DO NOT DEAL HERE WITH THE LAW OF ARREST UNDER THE FOURTH
AMENDMENT. 

FN6  THE APPLICABILITY OF THE FOURTH AMENDMENT IF PARTIN HAD BEEN A
STRANGER TO THE PETITIONER IS A QUESTION WE DO NOT DECIDE.  CF. LEWIS
V. UNITED STATES, ANTE, P. 206. 

FN7  "MANY LINKS FREQUENTLY COMPOSE THAT CHAIN OF TESTIMONY WHICH IS
NECESSARY TO CONVICT ANY INDIVIDUAL OF A CRIME.  IT APPEARS TO THE
COURT TO BE THE TRUE SENSE OF THE RULE THAT NO WITNESS IS COMPELLABLE
TO FURNISH ANY ONE OF THEM AGAINST HIMSELF  ...  ."  IN RE WILLIE, 25
FED. CAS. 38, 40 (NO. 14,692E)(C.C.D.VA. 1807). 

FN8  PETITIONER MAINTAINS THAT THE CROSS-EXAMINATION OF ONE OF THESE
CHARACTER WITNESSES AT THE TEST FLEET TRIAL SHOWS THAT THE PROSECUTION
AVAILED ITSELF OF THE INFORMATION TRANSMITTED BY PARTIN.   THE
FOLLOWING EXCHANGE BETWEEN THE PROSECUTOR AND WITNESS OCCURRED: 

Q. "DID DEFENSE COUNSEL GIVE YOU ANYTHING TO READ, MR. SAMMUT?" 

A. "NO, SIR, NOT EVEN A NEWSPAPER." 

Q. "NOT EVEN A NEWSPAPER?  I AM NOT TALKING ABOUT NEWSPAPERS, I AM
TALKING WITH RESPECT TO YOUR TESTIMONY.  DID THEY GIVE YOU ANYTHING TO
READ WITH RESPECT TO YOUR TESTIMONY?" 

A. "AFTER I TALKED TO THEM." 

Q. "THEY GAVE YOU WRITTEN QUESTIONS AND ANSWERS, DIDN'T THEY?" 

A. "THE QUESTIONS THAT THEY ASKED ME AND THE QUESTIONS THAT I
ANSWERED." 

FN9  IN COPLON, THE GRANT OF A NEW TRIAL WAS CONDITIONED ON THE
DEFENDANT'S PROOF OF HER WIRETAPPING ALLEGATIONS. 

FN10  IN THE CALDWELL CASE, THE COURT OF APPEALS IMPLICITLY
RECOGNIZED THE POSSIBILITY OF A CASE ARISING IN WHICH A SHOWING COULD
BE MADE OF "PREJUDICE TO THE DEFENSE OF SUCH A NATURE AS WOULD
NECESSARILY RENDER A SUBSEQUENT TRIAL UNFAIR TO THE ACCUSED."  92 U.S.
APP.  D.C. 355, 357, N. 11, 205 F.2D 879, 881-882, N. 11. 

FN11  WE PUT TO ONE SIDE THE EXTRAORDINARY PROBLEMS THAT WOULD HAVE
ARISEN IF THE PETITIONER HAD BEEN ARRESTED AND CHARGED DURING THE
PROGRESS OF THE TEST FLEET TRIAL. 

FN12  PARTIN UNDERWENT CROSS-EXAMINATION FOR AN ENTIRE WEEK.  THE
DEFENSE WAS AFFORDED WIDE LATITUDE TO PROBE PARTIN'S BACKGROUND,
CHARACTER, AND TIES TO THE AUTHORITIES; IT WAS PERMITTED TO EXPLORE
MATTERS THAT ARE NORMALLY EXCLUDABLE, FOR EXAMPLE, WHETHER PARTIN HAD
BEEN CHARGED WITH A CRIME IN 1942, EVEN THOUGH THAT CHARGE HAD NEVER
BEEN PROSECUTED. 

FN13  THE JUDGE INSTRUCTED THE JURY THAT IT WAS PETITIONER'S
CONTENTION THAT HE "DID NOT INVITE EDWARD PARTIN TO COME TO NASHVILLE,
TENNESSEE, DURING THE TRIAL OF THE TEST FLEET CASE BUT THAT THE SAID
EDWARD PARTIN CAME OF HIS OWN ACCORD UNDER THE PRETENSE OF ATTEMPTING
TO CONVINCE MR. HOFFA THAT THE TEAMSTERS LOCAL UNION IN BATON ROUGE,
LOUISIANA SHOULD NOT BE PLACED IN TRUSTEESHIP BY REASON OF PARTIN'S
BEING UNDER INDICTMENT AND OTHER MISCONDUCT ON PARTIN'S PART, BUT FOR
THE REAL PURPOSE OF FABRICATING EVIDENCE AGAINST HOFFA IN ORDER TO
SERVE HIS OWN PURPOSES AND INTERESTS." 

FN14  THE JURY WAS INSTRUCTED:  "YOU SHOULD CAREFULLY SCRUTINIZE THE
TESTIMONY GIVEN AND THE CIRCUMSTANCES UNDER WHICH EACH WITNESS HAS
TESTIFIED, AND EVERY MATTER IN EVIDENCE WHICH TENDS TO INDICATE WHETHER
THE WITNESS IS WORTHY OF BELIEF.  CONSIDER EACH WITNESS' INTELLIGENCE,
HIS MOTIVES, STATE OF MIND, HIS DEMEANOR AND MANNER WHILE ON THE
WITNESS STAND.  CONSIDER ALSO ANY RELATION EACH WITNESS MAY BEAR TO
EITHER SIDE OF THE CASE  ...  .  ALL EVIDENCE OF A WITNESS WHOSE SELF
INTEREST IS SHOWN FROM EITHER BENEFITS RECEIVED, DETRIMENTS SUFFERED,
THREATS OR PROMISES MADE, OR ANY ATTITUDE OF THE WITNESS WHICH MIGHT
TEND TO PROMPT TESTIMONY EITHER FAVORABLE OR UNFAVORABLE TO THE ACCUSED
SHOULD BE CONSIDERED WITH CAUTION AND WEIGHED WITH CARE." 

MR. JUSTICE WHITE AND MR. JUSTICE FORTAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

(FOR OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 340.) 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

I CANNOT AGREE EITHER WITH THE OPINION OF THE COURT AFFIRMING THESE
CONVICTIONS OR WITH THE SEPARATE OPINIONS OF MR. JUSTICE CLARK AND MR.
JUSTICE DOUGLAS TO THE EFFECT THAT THE WRITS OF CERTIORARI WERE
IMPROVIDENTLY GRANTED. 

                         I. 

AS TO THE LATTER, IT SEEMS TO ME THAT THE FINDING OF THE DISTRICT
COURT WHICH SO TROUBLES MY BROTHERS CLARK AND DOUGLAS IS IN FACT NO
ROADBLOCK TO OUR REVIEW OF THE IMPORTANT QUESTIONS PRESENTED BY THE
PETITIONS.  IT HAS LONG BEEN SETTLED THAT THIS COURT WILL NOT BE BOUND
BY THE FINDINGS OF LOWER COURTS WHEN IT IS ALLEGED THAT FUNDAMENTAL
CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED.  JACOBELLIS V. OHIO, 378 U.S.
184 (1964); HAYNES V. WASHINGTON, 373 U.S. 503 (1963); WATTS V.
INDIANA, 338 U.S. 49 (1949); HOOVEN & ALLISON CO. V. EVATT, 324 U.S.
652 (1945); NORRIS V. ALABAMA, 294 U.S. 587 (1935).  WE HAVE SAID, "THE
DUTY OF THIS COURT TO MAKE ITS OWN INDEPENDENT EXAMINATION OF THE
RECORD WHEN FEDERAL CONSTITUTIONAL DEPRIVATIONS ARE ALLEGED IS CLEAR,
RESTING, AS IT DOES, ON OUR SOLEMN RESPONSIBILITY FOR MAINTAINING THE
CONSTITUTION INVIOLATE."  NAPUE V. ILLINOIS, 360 U.S. 264, 271 (1959). 

THE FINDING IN QUESTION HERE IS NOT ONE WHICH THE DISTRICT JUDGE
ARRIVED AT BY RESOLVING CONTRADICTORY TESTIMONY ON THE BASIS OF
CREDIBILITY.  FINDINGS OF FACT BASED ON CREDITING THE TESTIMONY OF
OTHERS MAY PROPERLY BE ACCORDED SOME INSULATION FROM APPELLATE REVIEW
BECAUSE OF THE SUPERIOR OPPORTUNITY OF THE TRIAL JUDGE TO OBSERVE THE
DEMEANOR OF THE WITNESSES.  IN THIS CASE, HOWEVER, THE TESTIMONY
CONCERNING THE CIRCUMSTANCES SURROUNDING PARTIN'S ENTRY INTO HOFFA'S
COUNCILS WAS NOT SUBSTANTIALLY IN DISPUTE.  WHILE THOSE CIRCUMSTANCES
ARE SET FORTH IN GREATER DETAIL INFRA, A BRIEF SUMMARY DISCLOSES THAT
PARTIN AFTER DISCUSSING HOFFA WITH FEDERAL AGENTS AND LEARNING OF THEIR
INTENSE AND MUTUALLY BENEFICIAL INTEREST, SUCCESSFULLY SOLICITED AN
INVITATION TO MEET WITH HOFFA.  PARTIN'S RELEASE FROM JAIL WAS ASSISTED
BY THE FEDERAL AGENTS, AND HE WAS COMPENSATED IN A FINANCIAL SENSE AS
WELL; IN RETURN, HE KEPT THE FEDERAL AGENTS FULLY INFORMED OF ALL THAT
OCCURRED FROM THE OUTSET OF HIS CONTACT WITH HOFFA. 

SURELY THE ONLY REASONABLE CONSTRUCTION OF THESE FACTS IS THAT PARTIN
WAS ACTING AS A PAID FEDERAL INFORMER WHEN HE TRAVELED TO NASHVILLE AND
ATTACHED HIMSELF TO HOFFA.  AND THE FACT THAT HOFFA ON PARTIN'S URGING
AGREED TO A MEETING IN NASHVILLE IS NOT INCONSISTENT WITH THIS
CONCLUSION.  AN INVASION OF BASIC RIGHTS MADE POSSIBLE BY PREVAILING
UPON FRIENDSHIP WITH THE VICTIM IS NO LESS PROSCRIBED THAN AN INVASION
ACCOMPLISHED BY FORCE.  SEE MASSIAH V. UNITED STATES, 377 U.S. 201
(1964); GOULED V. UNITED STATES, 255 U.S. 298 (1921). 

MOREOVER, AT THE TIME WE GRANTED THE PETITIONS FOR CERTIORARI IN
THESE CASES, WE KNEW EXACTLY WHAT WE KNOW NOW.  THE FINDINGS OF THE
DISTRICT COURT WERE IN THE RECORD THEN BEFORE US, AND NO NEW FACTS TO
CHANGE THE SITUATION HAVE SINCE COME TO LIGHT.  IN SHORT, THERE IS
NOTHING WHICH SHOULD PREVENT US FROM FACING UP TO THE IMPORTANT
QUESTIONS PRESENTED AND DETERMINING WHETHER THE CONVICTIONS CAN STAND
EITHER IN LIGHT OF THE CONSTITUTION OR UNDER OUR POWER OF SUPERVISION
OVER THE ADMINISTRATION OF JUSTICE IN FEDERAL COURTS. 

                                        II. 

FOR ME, THIS CASE AND TWO OTHERS DECIDED TODAY (LEWIS V. UNITED
STATES, ANTE, P. 206, AND OSBORN V. UNITED STATES, POST, P. 323)
PRESENT FOR COMPARISON DIFFERENT FACETS OF THE GOVERNMENT'S USE OF
INFORMERS AND UNDERCOVER AGENTS.  IN TWO CASES OF THE SET I HAVE VOTED
TO SUSTAIN THE ACTIVITY OF THE GOVERNMENT.  BUT IN THIS CASE I FIND IT
IMPOSSIBLE TO DO SO BECAUSE THE NATURE OF THE OFFICIAL PRACTICES
EVIDENCED HERE IS OFFENSIVE TO THE FAIR ADMINISTRATION OF JUSTICE IN
FEDERAL COURTS. 

AT THIS LATE DATE IN THE ANNALS OF LAW ENFORCEMENT, IT SEEMS TO ME
THAT WE CANNOT SAY EITHER THAT EVERY USE OF INFORMERS AND UNDERCOVER
AGENTS IS PROPER OR, ON THE OTHER HAND, THAT NO USES ARE.  THERE ARE
SOME SITUATIONS WHERE THE LAW COULD NOT ADEQUATELY BE ENFORCED WITHOUT
THE EMPLOYMENT OF SOME GILE OR MISREPRESENTATION OF IDENTITY.  A LAW
ENFORCEMENT OFFICER PERFORMING HIS OFFICIAL DUTIES CANNOT BE REQUIRED
ALWAYS TO BE IN UNIFORM OR TO WEAR HIS BADGE OF AUTHORITY ON THE LAPEL
OF HIS CIVILIAN CLOTHING.  NOR NEED HE BE REQUIRED IN ALL SITUATIONS TO
PROCLAIM HIMSELF AN ARM OF THE LAW.  IT BLINKS THE REALITITS OF
SOPHISTICATED, MODERN-DAY CRIMINAL ACTIVITY AND LEGITIMATE LAW
ENFORCEMENT PRACTICES TO ARGUE THE CONTRARY.  HOWEVER, ONE OF THE
IMPORTANT DUTIES OF THIS COURT IS TO GIVE CAREFUL SCRUTINY TO PRACTICES
OF GOVERNMENT AGENTS WHEN THEY ARE CHALLENGED IN CASES BEFORE US, IN
ORDER TO INSURE THAT THE PROTECTIONS OF THE CONSTITUTION ARE RESPECTED
AND TO MAINTAIN THE INTEGRITY OF FEDERAL LAW ENFORCEMENT. 

I FIND THESE THREE CASES WHICH WE DECIDE TODAY QUITE DISTINGUISHABLE
FROM EACH OTHER IN THIS REGARD.  ALTHOUGH ALL THREE INVOLVE WHAT MAY BE
TERMED OFFICIAL DECEPTION IN ORDER TO GATHER EVIDENCE FOR CRIMINAL
PROSECUTIONS, THE POLICE PRACTICES REVIEWED ARE ESSENTIALLY DIFFERENT. 
THE SIMPLEST OF THE THREE FOR ME IS LEWIS, WHEREIN A FEDERAL NARCOTICS
AGENT HAVING REASON TO BELIEVE THAT LEWIS WAS A TRAFFICKER IN
NARCOTICS, CALLED HIM ON THE TELEPHONE USING AN ASSUMED NAME AND TOLD
HIM THAT A MUTUAL FRIEND HAD SAID LEWIS SOLD NARCOTICS.  LEWIS AFFIRMED
THE NATURE OF HIS OCCUPATION AND INVITED THE AGENT TO HIS PLACE OF
BUSINESS WHICH, AS AN INCIDENTAL MATTER, TURNED OUT ALSO TO BE HIS
HOME.  THE AGENT WENT THERE, PURCHASED NARCOTICS AND ARRANGED FOR
FUTURE DEALINGS TO OCCUR AT THE SAME PLACE BUT ON A REDUCED-PRICE
BASIS.  LATER, A SECOND PURCHASE OF NARCOTICS WAS EXECUTED BY THE AGENT
IN THE SAME MANNER.    IN LEWIS, THEN, THERE WAS NO INTRUSION UPON THE
PRIVACY OF THE HOUSEHOLD.  NOTHING WAS HEARD, SEEN, OR TAKEN BY THE
AGENT THAT WAS NOT A NECESSARY PART OF THE BUSINESS TRANSACTIONS
BETWEEN HIM AND LEWIS.  THE PURPOSE OF THE AGENT'S VISITS WAS TO BUY
NARCOTICS FROM LEWIS, AND THE DETAILS OF THEIR BUSINESS DEALINGS WERE
ALL THAT CONCERNED HIM.  LEWIS SIMPLY IS NOT A CASE WHERE AN UNDERCOVER
AGENT INVADED A PLACE USED BOTH AS A BUSINESS LOCATION AND A HOME AND
THEN, OVERTLY OR COVERTLY, EITHER SEIZED SOMETHING OR OBSERVED OR HEARD
SOMETHING UNRELATED TO THE BUSINESS PURPOSE OF HIS VISIT.  AS WE SAID
IN AFFIRMING LEWIS' CONVICTION, THE PRINCIPLES ELABORATED IN GOULED V.
UNITED STATES, 255 U.S. 298 (1921), WOULD PROTECT AGAINST SUCH
OVERREACHING.  WE DO NOT ENDORSE UNCONSCIONABLE ACTIVITIES OR THE USE
OF AN UNRELIABLE INFORMER WHEN WE SUSTAIN THE UNDERCOVER WORK OF THE
AGENT RESPONSIBLE FOR LEWIS' CONVICTION.  COMPARE SHERMAN V. UNITED
STATES, 356 U.S. 369 (1958). 

IN THE OSBORN CASE, THE PETITIONER EMPLOYED ROBERT VICK, A POLICE
OFFICER OF NASHVILLE, TENNESSEE, TO INVESTIGATE PERSONS WHO WERE
MEMBERS OF A PANEL FROM WHICH A FEDERAL CRIMINAL JURY WAS TO BE
SELECTED IN A PRIOR TRIAL OF JAMES HOFFA IN THAT CITY.  ALTHOUGH HE
KNEW VICK'S LOYALTY WAS DUE THE POLICE DEPARTMENT, WHEN HE LEARNED THAT
VICK HAD A COUSIN ON THE PANEL HE URGED VICK TO OFFER THE COUSIN
$10,000 IN RETURN FOR THE LATTER'S PROMISE TO VOTE FOR ACQUITTAL IF
SELECTED TO SIT ON THE PETIT JURY.  VICK INFORMED FEDERAL AUTHORITIES
OF THIS PROPOSAL, AND MADE AN AFFIDAVIT TO THAT EFFECT FOR THE JUDGE
WHO WAS TO PRESIDE AT THE HOFFA TRIAL.  THE JUDGE, IN ORDER TO
DETERMINE THE TRUTHFULNESS OF THE AFFIDAVIT AND TO PROTECT THE
INTEGRITY OF THE TRIAL, AUTHORIZED THE EQUIPPING OF VICK WITH A
RECORDING DEVICE TO BE USED IN FURTHER CONVERSATIONS WITH PETITIONER. 
I SEE NOTHING WRONG WITH THE GOVERNMENT'S THUS VERIFYING THE
TRUTHFULNESS OF THE INFORMER AND PROTECTING HIS CREDIBILITY IN THIS
FASHION.  (FN1)  LOPEZ V. UNITED STATES, 373 U.S. 427 (1963).  THIS
DECISION IN NO SENSE SUPPORTS A CONCLUSION THAT UNBRIDLED USE OF
ELECTRONIC RECORDING EQUIPMENT IS TO BE PERMITTED IN SEARCHING OUT
CRIME.  AND IT DOES NOT LEND JUDICIAL SANCTION TO WIRETAPPING,
ELECTRONIC "BUGGING" OR ANY OF THE OTHER QUESTIONABLE SPYING PRACTICES
THAT ARE USED TO INVADE PRIVACY AND THAT APPEAR TO BE INCREASINGLY
PREVALENT IN OUR COUNTRY TODAY.  CF.  SILVERMAN V. UNITED STATES, 365
U.S. 505 (1961); BLACK V. UNITED STATES, ANTE, P. 26; UNITED STATES V.
SCHIPANI, 362 F.2D 825, CERT. DENIED, POST, P. 934, REHEARING GRANTED,
JUDGMENT VACATED, AND CASE REMANDED ON SUGGESTION OF SOLICITOR GENERAL,
POST, P. 372. 

BUT I CONSIDER BOTH LEWIS AND OSBORN TO BE MATERIALLY, EVEN
FUNDAMENTALLY, DIFFERENT FROM THIS HOFFA CASE.  HERE, EDWARD PARTIN, A
JAILBIRD LANGUISHING IN A LOUISIANA JAIL UNDER INDICTMENTS FOR SUCH
STATE AND FEDERAL CRIMES AS EMBEZZLEMENT, KIDNAPPING AND MANSLAUGHTER
(AND SOON TO BE CHARGED WITH PERJURY AND ASSAULT), CONTACTED FEDERAL
AUTHORITIES AND TOLD THEM HE WAS WILLING TO BECOME, AND WOULD BE USEFUL
AS, AN INFORMER AGAINST HOFFA WHO WAS THEN ABOUT TO BE TRIED IN THE
TEST FLEET CASE.   A MOTIVE FOR HIS DOING THIS IS IMMEDIATELY APPARENT
NAMELY, HIS STRONG DESIRE TO WORK HIS WAY OUT OF JAIL AND OUT OF HIS
VARIOUS LEGAL ENTANGLEMENTS WITH THE STATE AND FEDERAL GOVERNMENTS. 
(FN2) AND IT IS INTERESTING TO NOTE THAT, IF THIS WAS HIS MOTIVE, HE
HAS BEEN UNIQUELY SUCCESSFUL IN SATISFYING IT.  IN THE FOUR YEARS SINCE
HE FIRST VOLUNTEERED TO BE AN INFORMER AGAINST HOFFA HE HAS NOT BEEN
PROSECUTED ON ANY OF THE SERIOUS FEDERAL CHARGES FOR WHICH HE WAS AT
THAT TIME JAILED, AND THE STATE CHARGES HAVE APPARENTLY VANISHED INTO
THIN AIR. 

SHORTLY AFTER PARTIN MADE CONTACT WITH THE FEDERAL AUTHORITIES AND
TOLD THEM OF HIS POSITION IN THE BATON ROUGE LOCAL OF THE TEAMSTERS
UNION AND OF HIS ACQUAINTANCE WITH HOFFA, HIS BAIL WAS SUDDENLY REDUCED
FROM $50,000 TO $5,000 AND HE WAS RELEASED FROM JAIL.  HE IMMEDIATELY
TELEPHONED HOFFA, WHO WAS THEN IN NEW JERSEY, AND, BY COLLABORATING
WITH A STATE LAW ENFORCEMENT OFFICIAL, SURREPTITIOUSLY MADE A TAPE
RECORDING OF THE CONVERSATION.  A COPY OF THE RECORDING WAS FURNISHED
TO FEDERAL AUTHORITIES.  AGAIN ON A PRETEXT OF WANTING TO TALK WITH
HOFFA REGARDING PARTIN'S LEGAL DIFFICULTIES, PARTIN TELEPHONED HOFFA A
FEW WEEKS LATER AND SUCCEEDED IN MAKING A DATE TO MEET IN NASHVILLE
WHERE HOFFA AND HIS ATTORNEYS WERE THEN PREPARING FOR THE TEST FLEET
TRIAL.  UNKNOWN TO HOFFA, THIS CALL WAS ALSO RECORDED AND AGAIN FEDERAL
AUTHORITIES WERE INFORMED AS TO THE DETAILS. 

UPON HIS ARRIVAL IN NASHVILLE, PARTIN MANIFESTED HIS "FRIENDSHIP" AND
MADE HIMSELF USEFUL TO HOFFA, THEREBY WORMING HIS WAY INTO HOFFA'S
HOTEL SUITE AND BECOMING PART AND PARCEL OF HOFFA'S ENTOURAGE.  AS THE
"FAITHFUL" SERVANT AND FACTOTUM OF THE DEFENSE CAMP WHICH HE BECAME, HE
WAS IN A POSITION TO OVERHEAR CONVERSATIONS NOT DIRECTED TO HIM, MANY
OF WHICH WERE BETWEEN ATTORNEYS AND EITHER THEIR CLIENT OR PROSPECTIVE
DEFENSE WITNESSES.  PURSUANT TO THE GENERAL INSTRUCTIONS HE RECEIVED
FROM FEDERAL AUTHORITIES TO REPORT "ANY ATTEMPTS AT WITNESS
INTIMIDATION OR TAMPERING WITH THE JURY,"  "ANYTHING ILLEGAL," OR EVEN
"ANYTHING OF INTEREST," PARTIN BECAME THE EQUIVALENT OF A BUGGING
DEVICE WHICH MOVED WITH HOFFA WHEREVER HE WENT.  EVERYTHING PARTIN SAW
OR HEARD WAS REPORTED TO FEDERAL AUTHORITIES AND MUCH OF IT WAS
ULTIMATELY THE SUBJECT MATTER OF HIS TESTIMONY IN THIS CASE.  FOR HIS
SERVICES HE WAS WELL PAID BY THE GOVERNMENT, BOTH THROUGH DEVIOUS AND
SECRET SUPPORT PAYMENTS TO HIS WIFE AND, IT MAY BE INFERRED, BY
EXECUTED PROMISES NOT TO PURSUE THE INDICTMENTS UNDER WHICH HE WAS
CHARGED AT THE TIME HE BECAME AN INFORMER. 

THIS TYPE OF INFORMER AND THE USES TO WHICH HE WAS PUT IN THIS CASE
EVIDENCE A SERIOUS POTENTIAL FOR UNDERMINING THE INTEGRITY OF THE TRUTH
FINDING PROCESS IN THE FEDERAL COURTS.  GIVEN THE INCENTIVES AND
BACKGROUND OF PARTIN, NO CONVICTION SHOULD BE ALLOWED TO STAND WHEN
BASED HEAVILY ON HIS TESTIMONY.  AND THAT IS EXACTLY THE QUICKSAND UPON
WHICH THESE CONVICTIONS REST, BECAUSE WITHOUT PARTIN, WHO WAS THE
PRINCIPAL GOVERNMENT WITNESS, THERE WOULD PROBABLY HAVE BEEN NO
CONVICTIONS HERE.  THUS, ALTHOUGH PETITIONERS MAKE THEIR MAIN ARGUMENTS
ON CONSTITUTIONAL GROUNDS AND RAISES SERIOUS FOURTH AND SIXTH AMENDMENT
QUESTIONS, IT SHOULD NOT EVEN BE NECESSARY FOR THE COURT TO REACH THOSE
QUESTIONS.  FOR THE AFFRONT TO THE QUALITY AND FAIRNESS OF FEDERAL LAW
ENFORCEMENT WHICH THIS CASE PRESENTS IS SUFFICIENT TO REQUIRE AN
EXERCISE OF OUR SUPERVISORY POWERS.  AS WE SAID IN ORDERING A NEW TRIAL
IN MESAROSH V. UNITED STATES, 352 U.S. 1, 14 (1956), A FEDERAL CASE
INVOLVING THE TESTIMONY OF AN UNSAVORY INFORMER WHO, THE GOVERNMENT
ADMITTED, HAD COMMITTED PERJURY IN OTHER CASES: 

"THIS IS A FEDERAL CRIMINAL CASE, AND THIS COURT HAS SUPERVISORY
JURISDICTION OVER THE PROCEEDINGS OF THE FEDERAL COURTS.  IF IT HAS ANY
DUTY TO PERFORM IN THIS REGARD, IT IS TO SEE THAT THE WATERS OF JUSTICE
ARE NOT POLLUTED.  POLLUTION HAVING TAKEN PLACE HERE, THE CONDITION
SHOULD BE REMEDIED AT THE EARLIEST OPPORTUNITY. 

     *         *      *         *         * 

"THE GOVERNMENT OF A STRONG AND FREE NATION DOES NOT NEED CONVICTIONS
BASED UPON SUCH TESTIMONY.  IT CANNOT AFFORD TO ABIDE WITH THEM." 

SEE ALSO MCNABB V. UNITED STATES, 318 U.S. 332, 341 (1943). 

I DO NOT SAY THAT THE GOVERNMENT MAY NEVER USE AS A WITNESS A PERSON
OF DUBIOUS OR EVEN BAD CHARACTER.  IN PERFORMING ITS DUTY TO PROSECUTE
CRIME THE GOVERNMENT MUST TAKE THE WITNESSES AS IT FINDS THEM.  THEY
MAY BE PERSONS OF GOOD, BAD, OR DOUBTFUL CREDITILITY, BUT THEIR
TESTIMONY MAY BE THE ONLY WAY TO ESTABLISH THE FACTS, LEAVING IT TO THE
JURY TO DETERMINE THEIR CREDIBILITY.  IN THIS CASE, HOWEVER, WE HAVE A
TOTALLY DIFFERENT SITUATION.  HERE THE GOVERNMENT REACHES INTO THE
JAILHOUSE TO EMPLOY A MAN WHO WAS HIMSELF FACING INDICTMENTS FAR MORE
SERIOUS (AND LATER INCLUDING ONE FOR PERJURY) THAN THE ONE CONFRONTING
THE MAN AGAINST WHOM HE OFFERED TO INFORM.  IT EMPLOYED HIM NOT FOR THE
PURPOSE OF TESTIFYING TO SOMETHING THAT HAD ALREADY HAPPENED, BUT
RATHER FOR THE PURPOSE OF INFILTRATION TO SEE IF CRIMES WOULD IN THE
FUTURE BE COMMITTED.  THE GOVERNMENT IN ITS ZEAL EVEN ASSISTED HIM IN
GAINING A POSITION FROM WHICH HE COULD BE A WITNESS TO THE CONFIDENTIAL
RELATIONSHIP OF ATTORNEY AND CLIENT ENGAGED IN THE PREPARATION OF A
CRIMINAL DEFENSE.  AND, FOR THE DUBIOUS EVIDENCE THUS OBTAINED, THE
GOVERNMENT PAID AN ENORMOUS PRICE.  CERTAINLY IF A CRIMINAL DEFENDANT
INSINUATED HIS INFORMER INTO THE PROSECUTION'S CAMP IN THIS MANNER HE
WOULD BE GUILTY OF OBSTRUCTING JUSTICE.  I CANNOT AGREE THAT WHAT
HAPPENED IN THIS CASE IS IN KEEPING WITH THE STANDARDS OF JUSTICE IN
OUR FEDERAL SYSTEM AND I MUST, THEREFORE, DISSENT. 

FN1  THE RECORDING WAS NOT USED HERE AS A MEANS TO AVOID CALLING THE
INFORMER TO TESTIFY.  AS I NOTED IN MY OPINION CONCURRING IN THE RESULT
IN LOPEZ (373 U.S., AT 441), I WOULD NOT SANCTION THE USE OF A SECRETLY
MADE RECORDING OTHER THAN FOR THE PURPOSES OF CORROBORATING THE
TESTIMONY OF A WITNESS WHO CAN GIVE FIRSTHAND TESTIMONY CONCERNING THE
RECORDED CONVERSATIONS AND WHO IS MADE AVAILABLE FOR CROSS
EXAMINATION. 

FN2  ONE SYDNEY SIMPSON, WHO WAS PARTIN'S CELLMATE AT THE TIME THE
LATTER FIRST CONTACTED FEDERAL AGENTS TO DISCUSS HOFFA, HAS TESTIFIED
BY AFFIDAVIT AS FOLLOWS: 

"SOMETIME IN SEPTEMBER, 1962, I WAS TRANSFERRED FROM THE
DONALDSONVILLE PARISH JAIL TO THE BATON ROUGE PARISH JAIL.  I WAS
PLACED IN A CELL WITH PARTIN.  FOR THE FIRST FEW DAYS, PARTIN ACTED
SORT OF BRAVE.  THEN WHEN IT WAS CLEAR THAT HE WAS NOT GOING TO GET OUT
IN A HURRY, HE BECAME MORE EXCITED AND NERVOUS.  AFTER I HAD BEEN IN
THE SAME CELL WITH PARTIN FOR ABOUT THREE DAYS, PARTIN SAID, 'I KNOW A
WAY TO GET OUT OF HERE.  THEY WANT HOFFA MORE THAN THEY WANT ME.' 
PARTIN TOLD ME THAT HE WAS GOING TO GET ONE OF THE DEPUTIES TO GET BILL
DANIELS.  BILL DANIELS IS AN OFFICER IN THE STATE OF LOUISIANA.  PARTIN
SAID HE WANTED TO TALK TO DANIELS ABOUT HOFFA.  PARTIN SAID THAT HE WAS
GOING TO TALK TO CAPTAIN EDWARDS AND ASK HIM TO GET DANIELS.  A DEPUTY,
WHOSE NAME IS NOT KNOWN TO ME, CAME AND TOOK PARTIN FROM THE CELL. 
PARTIN REMAINED AWAY FOR SEVERAL HOURS. 

"A FEW DAYS LATER PARTIN WAS RELEASED FROM THE JAIL.  FROM THE DAY
WHEN I FIRST SAW THE DEPUTY, UNTIL THE DATE WHEN PARTIN WAS RELEASED,
PARTIN WAS OUT OF THE CELL MOST OF THE DAY AND SOMETIMES PART OF THE
NIGHT.  ON ONE OCCASION PARTIN RETURNED TO THE CELL AND SAID, 'IT WILL
TAKE A FEW MORE DAYS AND WE WILL HAVE THINGS STRAIGHTENED OUT, BUT
DON'T WORRY.'  PARTIN WAS TAKEN IN AND OUT OF THE CELL FREQUENTLY EACH
DAY.  PARTIN TOLD ME DURING THIS TIME THAT HE WAS WORKING WITH DANIELS
AND THE FBI TO FRAME HOFFA.  ONE ONE OCCASION I ASKED PARTIN IF HE KNEW
ENOUGH ABOUT HOFFA TO BE OF ANY HELP TO DANIELS AND THE FBI, AND PARTIN
SAID, 'IT DOESN'T MAKE ANY DIFFERENCE.  IF I DON'T KNOW IT, I CAN FIX
IT UP.' 

"WHILE WE WERE IN THE CELL, I ASKED PARTIN WHY HE WAS DOING THIS TO
HOFFA.  PARTIN REPLIED: 'WHAT DIFFERENCE DOES IT MAKE?  I'M THINKING
ABOUT MYSELF.  AREN'T YOU THINKING ABOUT YOURSELF?  I DON'T GIVE A DAMN
ABOUT HOFFA  ...  ."  R. 171-172. 

MR. JUSTICE CLARK, JOINED BY MR. JUSTICE DOUGLAS. 

I WOULD DISMISS THE WRITS OF CERTIORARI AS IMPROVIDENTLY GRANTED. 

THE WRITS OF CERTIORARI GRANTED BY THE COURT IN THESE CASES ARE
LIMITED TO THE FOLLOWING QUESTION:

"WHETHER EVIDENCE OBTAINED BY THE GOVERNMENT BY MEANS OF DECEPTIVELY
PLACING A SECRET INFORMER IN THE QUARTERS AND COUNCILS OF A DEFENDANT
DURING ONE CRIMINAL TRIAL SO VIOLATES THE DEFENDANT'S FOURTH, FIFTH AND
SIXTH AMENDMENT RIGHTS THAT SUPPRESSION OF SUCH EVIDENCE IS REQUIRED IN
A SUBSEQUENT TRIAL OF THE SAME DEFENDANT ON A DIFFERENT CHARGE." 

MY EXAMINATION OF THE RECORD REVEALS THAT AT THE HEARING ON
PETITIONERS' MOTION TO SUPPRESS THE EVIDENCE OBTAINED BY THE INFORMER,
PARTIN, THE DISTRICT JUDGE FOUND THAT "THE GOVERNMENT DID NOT PLACE
THIS WITNESS MR. PARTIN IN THE DEFENDANTS' MIDST  ...  RATHER THAT HE
WAS KNOWINGLY AND VOLUNTARILY PLACED IN THEIR MIDST BY ONE OF THE
DEFENDANTS (HOFFA)."  THIS SPECIFIC FINDING WAS APPROVED BY THE COURT
OF APPEALS AS BEING "SUPPORTED BY SUBSTANTIAL EVIDENCE AND  ...  NOT
CLEARLY ERRONEOUS."  349 F.2D, AT 36.  NO ATTACK IS MADE HERE ON THE
FINDINGS. 

IT HAS LONG BEEN THE RULE OF THIS COURT THAT IT "CANNOT UNDERTAKE TO
REVIEW CONCURRENT FINDINGS OF FACT BY TWO COURTS BELOW IN THE ABSENCE
OF A VERY OBVIOUS AND EXCEPTIONAL SHOWING OF ERROR."  GRAVER MFG. CO.
V. LINDE CO., 336 U.S. 271, 275 (1949).  MY CAREFUL EXAMINATION OF THE
RECORD SHOWS THAT THERE IS A CHOICE HERE BETWEEN TWO PERMISSIBLE VIEWS
AS TO THE WEIGHT OF THE EVIDENCE.  THE DISTRICT JUDGE FOUND THE WEIGHT
OF THE EVIDENCE TO BE WITH THE GOVERNMENT AND THE COURT OF APPEALS HAS
APPROVED HIS FINDING.  I CANNOT SAY ON THIS RECORD THAT IT IS CLEARLY
ERRONEOUS.*  UNITED STATES V. YELLOW CAB CO., 338 U.S. 338, 342
(1949).    *AT ONE POINT THE INFORMER, PARTIN, TESTIFIED:  "MR. HOFFA
IS THE ONE TOLD ME HE WANTED ME TO STICK AROUND."  PETITIONERS' OWN
WITNESSES TESTIFIED THAT PARTIN WAS IN THE SUITE "VIRTUALLY EVERY DAY"
AS WELL AS THE "NIGHTLY MEETINGS," HAD "READY ACCESS" TO THE FILES AND
OFFICES AND ACTED AS "SERGEANT-AT-ARMS" JUST OUTSIDE THE DOOR OF THE
SUITE.  HOFFA DID NOT TESTIFY AT THE HEARING ON THE MOTION TO
SUPPRESS. 

IN THE LIGHT OF THIS FINDING, BY WHICH WE ARE BOUND, THERE IS NO
ISSUE BEFORE US FOR DECISION SINCE NO EVIDENCE WAS "OBTAINED BY THE
GOVERNMENT BY MEANS OF DECEPTIVELY PLACING A SECRET INFORMER IN THE
QUARTERS AND COUNCILS OF" PETITIONER HOFFA.    I WOULD THEREFORE
DISMISS THE WRITS AS IMPROVIDENTLY GRANTED. 
..END :














OSBORN V. UNITED STATES 385 U.S. 323 


NO. 29.  ARGUED OCTOBER 12-13, 1966.  - DECIDED DECEMBER 12, 1966.  -
350 F.2D 497, AFFIRMED. 


PETITIONER, A LAWYER, WAS INDICTED UNDER 18 U.S.C. SEC 1503 FOR
ENDEAVORING TO BRIBE A MEMBER OF THE JURY PANEL IN A PROSPECTIVE
FEDERAL CRIMINAL TRIAL.  TO INVESTIGATE THE BACKGROUND OF POTENTIAL
JURORS HE HAD EMPLOYED A NASHVILLE POLICEMAN, WHO HAD, UNKNOWN TO
PETITIONER, AGREED TO REPORT TO FEDERAL AGENTS ANY "ILLEGAL ACTIVITIES"
HE MIGHT OBSERVE.  THE INVESTIGATOR REPORTED TO FEDERAL AGENTS THAT
WHEN HE ADVISED PETITIONER THAT HE HAD A RELATIVE ON THE JURY PANEL,
PETITIONER EXPRESSED AN INTEREST IN APPROACHING HIM.  AN AFFIDAVIT TO
THIS EFFECT WAS PRESENTED TO THE DISTRICT COURT JUDGES, WHO AUTHORIZED
THE USE OF AN ELECTRONIC DEVICE TO RECORD FURTHER CONVERSATIONS BETWEEN
PETITIONER AND THE INVESTIGATOR.  A TAPE RECORDING OF A SUBSEQUENT
CONVERSATION WAS ADMITTED AT PETITIONER'S TRIAL.  HE WAS CONVICTED AND
THE COURT OF APPEALS AFFIRMED THE CONVICTION.  HELD: 

1.  THE USE OF A RECORDING DEVICE HERE UNDER "THE PROCEDURE OF
ANTECEDENT JUSTIFICATION BEFORE A MAGISTRATE THAT IS CENTRAL TO THE
FOURTH AMENDMENT" AS "A PRECONDITION OF LAWFUL ELECTRONIC SURVEILLANCE"
WAS PERMISSIBLE, AND THE RECORDING ITSELF WAS PROPERLY ADMITTED IN
EVIDENCE.  PP. 327-331. 

2.  ENTRAPMENT WAS NOT ESTABLISHED AS A MATTER OF LAW, FOR AT MOST
THE INVESTIGATOR AFFORDED PETITIONER "OPPORTUNITIES OR FACILITIES" FOR
THE COMMISSION OF A CRIMINAL OFFENSE, A FAR CRY FROM ENTRAPMENT.  PP.
331-332. 

3.  SINCE THIS STATUTE MAKES AN OFFENSE OF ANY PROSCRIBED "ENDEAVOR,"
A TERM WHICH IS NOT BURDENED WITH THE TECHNICALITIES OF THE WORD
"ATTEMPT," THE FACT THAT THE INVESTIGATOR DID NOT APPROACH THE
VENIREMAN AND DID NOT INTEND TO APPROACH HIM DOES NOT NEGATE A
VIOLATION OF 18 U.S.C. SEC 1503.  PP. 332-333. 

OSBORN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, A NASHVILLE LAWYER, WAS CONVICTED IN THE UNITED
STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE UPON ONE
COUNT OF AN INDICTMENT UNDER 18 U.S.C. SEC 1503, WHICH CHARGED HIM WITH
ENDEAVORING TO BRIBE A MEMBER OF THE JURY PANEL IN A PROSPECTIVE
FEDERAL CRIMINAL TRIAL.  (FN1)  THE CONVICTION WAS AFFIRMED BY THE
COURT OF APPEALS, 350 F.2D 497.  WE GRANTED CERTIORARI, 382 U.S. 1023,
PRIMARILY TO CONSIDER WHETHER THE CONVICTION RESTS UPON
UNCONSTITUTIONALLY ACQUIRED EVIDENCE, ALTHOUGH THE PETITIONER ALSO
PRESSES OTHER CLAIMS. 

IN LATE 1963, JAMES R. HOFFA WAS AWAITING TRIAL UPON A CRIMINAL
CHARGE IN THE FEDERAL COURT IN NASHVILLE, AND THE PETITIONER, AS ONE OF
HOFFA'S ATTORNEYS, WAS ENGAGED IN PREPARING FOR THAT TRIAL.   IN
CONNECTION WITH THESE PREPARATIONS THE PETITIONER HIRED A MAN NAMED
ROBERT VICK TO MAKE BACKGROUND INVESTIGATIONS OF THE PEOPLE LISTED ON
THE PANEL FROM WHICH MEMBERS OF THE JURY FOR THE HOFFA TRIAL WERE TO BE
DRAWN.  VICK WAS A MEMBER OF THE NASHVILLE POLICE DEPARTMENT WHOM THE
PETITIONER HAD EMPLOYED FOR SIMILAR INVESTIGATIVE WORK IN CONNECTION
WITH ANOTHER CRIMINAL TRIAL OF THE SAME DEFENDANT A YEAR EARLIER.  WHAT
THE PETITIONER DID NOT KNOW WAS THAT VICK, BEFORE APPLYING FOR THE JOB
WITH THE PETITIONER IN 1963, HAD MET SEVERAL TIMES WITH FEDERAL AGENTS
AND HAD AGREED TO REPORT TO THEM ANY "ILLEGAL ACTIVITIES" HE MIGHT
OBSERVE. 

THE CONVICTION WHICH WE NOW REVIEW WAS UPON THE CHARGE THAT THE
PETITIONER "DURING THE PERIOD FROM ON OR ABOUT NOVEMBER 6, 1963, UP TO
AND INCLUDING NOVEMBER 15, 1963,  ...  DID UNLAWFULLY, KNOWINGLY,
WILFULLY AND CORRUPTLY ENDEAVOR TO INFLUENCE, OBSTRUCT AND IMPEDE THE
DUE ADMINISTRATION OF JUSTICE  ...  " IN THAT HE "DID REQUEST, COUNSEL
AND DIRECT ROBERT D. VICK TO CONTACT RALPH A. ELLIOTT, WHO WAS, AND WAS
KNOWN BY THE SAID OSBORN TO BE, A MEMBER OF THE PETIT JURY PANEL FROM
WHICH THE PETIT JURY TO HEAR THE HOFFA TRIAL WAS SCHEDULED TO BE DRAWN,
AND TO OFFER AND PROMISE TO PAY THE SAID RALPH A. ELLIOTT $10,000 TO
INDUCE THE SAID ELLIOTT TO VOTE FOR AN ACQUITTAL, IF THE SAID ELLIOTT
SHOULD BE SELECTED TO SIT ON THE PETIT JURY IN THE SAID TRIAL."  (FN2)
THE PRIMARY EVIDENCE AGAINST THE PETITIONER ON THIS CHARGE CONSISTED OF
VICK'S TESTIMONY, A TAPE RECORDING OF A CONVERSATION BETWEEN THE
PETITIONER AND VICK, AND ADMISSIONS WHICH THE PETITIONER HAD MADE
DURING THE COURSE OF FEDERAL DISBARMENT PROCEEDINGS. 

VICK TESTIFIED THAT DURING A DISCUSSION WITH THE PETITIONER AT THE
LATTER'S OFFICE ON NOVEMBER 7, HE MENTIONED THAT HE KNEW SOME OF THE
PROSPECTIVE JURORS.  AT THIS, ACCORDING TO VICK, THE PETITIONER "JUMPED
UP," AND SAID, "YOU DO?  WHY DIDN'T YOU TELL ME?"  THE TWO THEN MOVED
OUTSIDE INTO THE ADJACENT ALLEY TO CONTINUE THE CONVERSATION.  THERE,
VICK TESTIFIED, HE TOLD THE PETITIONER THAT ONE OF THE PROSPECTIVE
JURORS, RALPH ELLIOTT, WAS HIS COUSIN, AND THE PETITIONER TOLD VICK TO
PAY A VISIT TO ELLIOTT TO SEE WHAT ARRANGEMENTS COULD BE MADE ABOUT THE
CASE.  VICK ALSO TESTIFIED TO MEETINGS WITH THE PETITIONER ON NOVEMBER
8 AND NOVEMBER 11, WHEN HE TOLD THE PETITIONER, FALSELY, THAT HE HAD
VISITED ELLIOTT AND FOUND HIM "SUSCEPTIBLE TO MONEY FOR HANGING THIS
JURY," TO WHICH THE PETITIONER RESPONDED BY OFFERING $5,000 TO ELLIOTT
IF HE BECAME A MEMBER OF THE JURY AND AN ADDITIONAL $5,000 "WHEN HE
HUNG THE JURY, BUT HE WOULD HAVE TO GO ALL THE WAY, AND TO ASSURE MR.
ELLIOTT THAT HE WOULD NOT BE ALONE, THAT THERE WOULD BE SOME OTHER
JURORS IN THERE." 

                                        I. 

NO CLAIM IS MADE IN THIS CASE THAT VICK'S TESTIMONY ABOUT THE
PETITIONER'S INCRIMINATING STATEMENTS WAS INADMISSIBLE IN EVIDENCE. 
CF. HOFFA V. UNITED STATES, ANTE, P. 293; LEWIS V. UNITED STATES, ANTE,
P. 206.  WHAT IS CHALLENGED IS THE INTRODUCTION IN EVIDENCE OF A TAPE
RECORDING OF ONE OF THE CONVERSATIONS ABOUT WHICH VICK TESTIFIED,
SPECIFICALLY THE CONVERSATION WHICH TOOK PLACE IN THE PETITIONER'S
OFFICE ON NOVEMBER 11.  THE RECORDING OF THIS CONVERSATION WAS PLAYED
FOR THE JURY, AND A WRITTEN TRANSCRIPT OF IT WAS INTRODUCED IN
EVIDENCE.  WE ARE ASKED TO HOLD THAT THE RECORDING SHOULD HAVE BEEN
EXCLUDED, EITHER UPON CONSTITUTIONAL GROUNDS, WEEKS V. UNITED STATES,
232 U.S. 383, OR IN THE EXERCISE OF OUR SUPERVISORY POWER OVER THE
FEDERAL COURTS.  MCNABB V. UNITED STATES, 318 U.S. 332. 

THERE IS NO QUESTION OF THE ACCURACY OF THE RECORDING.  THE
PETITIONER TESTIFIED THAT IT WAS A "SUBSTANTIALLY CORRECT" REPRODUCTION
OF WHAT TOOK PLACE IN HIS OFFICE ON NOVEMBER 11.  THERE CAN BE NO
DOUBT, EITHER, OF THE RECORDING'S PROBATIVE RELEVANCE.  IT PROVIDED
STRONG CORROBORATION OF THE TRUTH OF THE CHARGE AGAINST THE
PETITIONER.  (FN3)  THE RECORDING WAS MADE BY MEANS OF A DEVICE
CONCEALED UPON VICK'S PERSON DURING THE NOVEMBER 11 MEETING.  WE THUS
DEAL HERE NOT WITH SURREPTITIOUS SURVEILLANCE OF A PRIVATE CONVERSATION
BY AN OUTSIDER, CF. SILVERMAN V. UNITED STATES, 365 U.S. 505, BUT, AS
IN LOPEZ V. UNITED STATES, 373 U.S. 427, WITH THE USE BY ONE PARTY OF A
DEVICE TO MAKE AN ACCURATE RECORD OF A CONVERSATION ABOUT WHICH THAT
PARTY LATER TESTIFIED.  UNLESS LOPEZ V. UNITED STATES IS TO BE
DISREGARDED, THEREFORE, THE PETITIONER CANNOT PREVAIL.  (FN4) 

BUT WE NEED NOT REST OUR DECISION HERE UPON THE BROAD FOUNDATION OF
THE COURT'S OPINION IN LOPEZ, BECAUSE IT IS EVIDENT THAT THE
CIRCUMSTANCES UNDER WHICH THE TAPE RECORDING WAS OBTAINED IN THIS CASE
FALL WITHIN THE NARROWER COMPASS OF THE LOPEZ CONCURRING AND DISSENTING
OPINIONS.  ACCORDINGLY, IT IS APPROPRIATE TO SET OUT WITH SOME
PRECISION WHAT THESE CIRCUMSTANCES WERE. 

IMMEDIATELY AFTER HIS NOVEMBER 7 MEETING WITH THE PETITIONER, AT
WHICH, ACCORDING TO VICK, THE POSSIBILITY OF APPROACHING THE JUROR
ELLIOTT WAS FIRST DISCUSSED, VICK REPORTED THE CONVERSATION TO AN AGENT
OF THE UNITED STATES DEPARTMENT OF JUSTICE.  VICK WAS THEN REQUESTED TO
PUT HIS REPORT IN THE FORM OF A WRITTEN STATEMENT UNDER OATH, WHICH HE
DID.  (FN5)  THE FOLLOWING DAY THIS SWORN STATEMENT WAS SHOWN BY
GOVERNMENT ATTORNEYS TO THE TWO JUDGES OF THE FEDERAL DISTRICT COURT,
CHIEF JUDGE MILLER AND JUDGE GRAY.  AFTER CONSIDERING THIS AFFIDAVIT,
THE JUDGES AGREED TO AUTHORIZE AGENTS OF THE FEDERAL BUREAU OF
INVESTIGATION TO CONCEAL A RECORDER ON VICK'S PERSON IN ORDER TO
DETERMINE FROM RECORDINGS OF FURTHER CONVERSATIONS BETWEEN VICK AND THE
PETITIONER WHETHER THE STATEMENTS IN VICK'S AFFIDAVIT WERE TRUE.  IT
WAS THIS JUDICIAL AUTHORIZATION WHICH ULTIMATELY LED TO THE RECORDING
HERE IN QUESTION.  (FN6) 

THE ISSUE HERE, THEREFORE, IS NOT THE PERMISSIBILITY OF
"INDISCRIMINATE USE OF SUCH DEVICES IN LAW ENFORCEMENT,"  (FN7)  BUT
THE PERMISSIBILITY OF USING SUCH A DEVICE UNDER THE MOST PRECISE AND
DISCRIMINATE CIRCUMSTANCES, CIRCUMSTANCES WHICH FULLY MET THE
"REQUIREMENT OF PARTICULARITY" WHICH THE DISSENTING OPINION IN LOPEZ
FOUND NECESSARY.  (FN8) 

THE SITUATION WHICH FACED THE TWO JUDGES OF THE DISTRICT COURT WHEN
THEY WERE PRESENTED WITH VICK'S AFFIDAVIT ON NOVEMBER 8, AND THE
MOTIVATIONS WHICH PROMPTED THEIR AUTHORIZATION OF THE RECORDER ARE
REFLECTED IN THE WORDS OF CHIEF JUDGE MILLER.  AS HE PUT IT, "THE
AFFIDAVIT CONTAINED INFORMATION WHICH REFLECTED SERIOUSLY UPON A MEMBER
OF THE BAR OF THIS COURT, WHO HAD PRACTICED IN MY COURT EVER SINCE I
HAVE BEEN ON THE BENCH.  I DECIDED THAT SOME ACTION HAD TO BE TAKEN TO
DETERMINE WHETHER THIS INFORMATION WAS CORRECT OR WHETHER IT WAS
FALSE.  IT WAS THE MOST SERIOUS PROBLEM THAT I HAVE HAD TO DEAL WITH
SINCE I HAVE BEEN ON THE BENCH.  I COULD NOT SWEEP IT UNDER THE RUG." 

SO IT WAS THAT, IN RESPONSE TO A DETAILED FACTUAL AFFIDAVIT ALLEGING
THE COMMISSION OF A SPECIFIC CRIMINAL OFFENSE DIRECTLY AND IMMEDIATELY
AFFECTING THE ADMINISTRATION OF JUSTICE IN THE FEDERAL COURT, THE
JUDGES OF THAT COURT JOINTLY AUTHORIZED THE USE OF A RECORDING DEVICE
FOR THE NARROW AND PARTICULARIZED PURPOSE OF ASCERTAINING THE TRUTH OF
THE AFFIDAVIT'S ALLEGATIONS.  AS THE DISTRICT JUDGES RECOGNIZED, IT WAS
IMPERATIVE TO DETERMINE WHETHER THE INTEGRITY OF THEIR COURT WAS BEING
UNDERMINED, AND HIGHLY UNDESIRABLE THAT THIS DETERMINATION SHOULD HINGE
ON THE INCONCLUSIVE OUTCOME OF A TESTIMONIAL CONTEST BETWEEN THE ONLY
TWO PEOPLE IN THE WORLD WHO KNEW THE TRUTH - ONE AN INFORMER, THE OTHER
A LAWYER OF PREVIOUS GOOD REPUTE.  THERE COULD HARDLY BE A CLEARER
EXAMPLE OF " 'THE PROCEDURE OF ANTECEDENT JUSTIFICATION BEFORE A
MAGISTRATE THAT IS CENTRAL TO THE FOURTH AMENDMENT'" AS "A PRECONDITION
OF LAWFUL ELECTRONIC SURVEILLANCE."  (FN9) 

WE HOLD ON THESE FACTS THAT THE USE OF THE RECORDING DEVICE WAS
PERMISSIBLE, AND CONSEQUENTLY THAT THE RECORDING ITSELF WAS PROPERLY
ADMITTED AS EVIDENCE AT THE PETITIONER'S TRIAL. 

                 II. 

THE PETITIONER'S DEFENSE WAS ONE OF ENTRAPMENT, AND HE RENEWS HERE
THE CONTENTION MADE IN HIS MOTION FOR ACQUITTAL AT THE TRIAL THAT
ENTRAPMENT WAS ESTABLISHED AS A MATTER OF LAW.  WE CANNOT AGREE. 

THE VALIDITY OF THE ENTRAPMENT DEFENSE DEPENDED UPON WHAT HAD
TRANSPIRED AT THE MEETINGS BETWEEN THE PETITIONER AND VICK WHICH TOOK
PLACE BEFORE THE RECORDED CONVERSATION OF NOVEMBER 11.  ACCORDING TO
THE PETITIONER, VICK INITIATED THE IDEA OF MAKING A CORRUPT APPROACH TO
ELLIOTT ON OCTOBER 28, AND THE PETITIONER AT FIRST RESISTED THE
SUGGESTION AND TRIED TO DISCOURAGE VICK FROM CARRYING IT OUT.  THE
PETITIONER CONCEDED THAT HE ULTIMATELY ACQUIESCED IN THE SCHEME, OUT OF
"WEAKNESS" AND BECAUSE HE WAS EXHAUSTED FROM OVERWORK, BUT SAID THAT HE
NEVER SERIOUSLY INTENDED ACTUALLY TO CARRY OUT THE PLAN TO BRIBE
ELLIOTT.  BUT VICK'S VERSION OF WHAT HAD HAPPENED WAS, AS STATED ABOVE,
QUITE DIFFERENT, AND THE TRUTH OF THE MATTER WAS FOR THE JURY TO
DETERMINE.  (FN10)  MASCIALE V. UNITED STATES, 356 U.S. 386.  SURELY IT
WAS NOT A "TRAP FOR THE UNWARY INNOCENT," SHERMAN V. UNITED STATES, 356
U.S. 369, 372, FOR VICK TO TELL THE PETITIONER, TRUTHFULLY, THAT HE
KNEW SOME OF THE MEMBERS OF THE JURY PANEL AND THAT ONE OF THEM WAS HIS
COUSIN.  AND ACCORDING TO VICK HE HAD SAID NO MORE WHEN THE PETITIONER
"JUMPED UP," WENT OUT INTO THE ALLEY WITH HIM, AND INITIATED THE EFFORT
TO GET ELLIOTT "ON OUR SIDE."  AT THE MOST, VICK'S STATEMENT AFFORDED
THE PETITIONER "OPPORTUNITIES OR FACILITIES" FOR THE COMMISSION OF A
CRIMINAL OFFENSE, AND THAT IS A FAR CRY FROM ENTRAPMENT.  SHERMAN V.
UNITED STATES, SUPRA, AT 372; SORRELLS V. UNITED STATES, 287 U.S. 435,
441.  (FN11)

                                        III. 

FINALLY, THE ARGUMENT IS MADE THAT EVEN IF THE ADMISSIBILITY AND
TRUTH OF ALL THE EVIDENCE AGAINST THE PETITIONER BE ACCEPTED, THIS
CONVICTION MUST BE SET ASIDE BECAUSE HIS CONDUCT DID NOT CONSTITUTE A
VIOLATION OF 18 U.S.C. SEC 1503.  (FN12)  THE BASIS FOR THIS ARGUMENT
IS THAT SINCE VICK NEVER IN FACT APPROACHED ELLIOTT AND NEVER INTENDED
TO DO SO, ANY ENDEAVOR ON THE PETITIONER'S PART WAS IMPOSSIBLE OF
ACCOMPLISHMENT. 

WE REJECT THE ARGUMENT.  WHATEVER CONTINUING VALIDITY THE DOCTRINE OF
"IMPOSSIBILITY," WITH ALL ITS SUBTLETIES, MAY CONTINUE TO HAVE IN THE
LAW OF CRIMINAL ATTEMPT,  (FN13)  THAT BODY OF LAW IS INAPPLICABLE
HERE.  THE STATUTE UNDER WHICH THE PETITIONER WAS CONVICTED MAKES AN
OFFENSE OF ANY PROSCRIBED "ENDEAVOR."  AND ALMOST 50 YEARS AGO THIS
COURT POINTED OUT THE SIGNIFICANCE OF THAT WORD:  "THE WORD OF THE
TECHNICALITIES WHICH MIGHT BE URGED AS BESETTING THE WORD 'ATTEMPT,'
AND IT DESCRIBES ANY EFFORT OR ESSAY TO ACCOMPLISH THE EVIL PURPOSE
THAT THE SECTION WAS ENACTED TO PREVENT  ...  .  THE SECTION ...  IS
NOT DIRECTED AT SUCCESS IN CORRUPTING A JUROR BUT AT THE 'ENDEAVOR' TO
DO SO.  EXPERIMENTAL APPROACHES TO THE CORRUPTION OF A JUROR ARE THE
'ENDEAVOR' OF THE SECTION."  UNITED STATES V. RUSSELL, 255 U.S. 138,
143. 

IF THE EVIDENCE AGAINST THE PETITIONER BE ACCEPTED, THERE CAN BE NO
QUESTION THAT HE CORRUPTLY ENDEAVORED TO IMPEDE THE DUE ADMINISTRATION
OF JUSTICE BY INSTRUCTING ROBERT VICK TO OFFER A BRIBE TO A PROSPECTIVE
JUROR IN A FEDERAL CRIMINAL CASE.  AFFIRMED. 

FN1  18 U.S.C. SEC 1503 PROVIDES AS FOLLOWS: 

"WHOEVER CORRUPTLY, OR BY THREATS OR FORCE, OR BY ANY THREATENING
LETTER OR COMMUNICATION, ENDEAVORS TO INFLUENCE, INTIMIDATE, OR IMPEDE
ANY WITNESS, IN ANY COURT OF THE UNITED STATES OR BEFORE ANY UNITED
STATES COMMISSIONER OR OTHER COMMITTING MAGISTRATE, OR ANY GRAND OR
PETIT JUROR, OR OFFICER IN OR OF ANY COURT OF THE UNITED STATES, OR
OFFICER WHO MAY BE SERVING AT ANY EXAMINATION OR OTHER PROCEEDING
BEFORE ANY UNITED STATES COMMISSIONER OR OTHER COMMITTING MAGISTRATE,
IN THE DISCHARGE OF HIS DUTY, OR INJURES ANY PARTY OR WITNESS IN HIS
PERSON OR PROPERTY ON ACCOUNT OF HIS ATTENDING OR HAVING ATTENDED SUCH
COURT OR EXAMINATION BEFORE SUCH OFFICER, COMMISSIONER, OR OTHER
COMMITTING MAGISTRATE, OR ON ACCOUNT OF HIS TESTIFYING OR HAVING
TESTIFIED TO ANY MATTER PENDING THEREIN, OR INJURES ANY SUCH GRAND OR
PETIT JUROR IN HIS PERSON OR PROPERTY ON ACCOUNT OF ANY VERDICT OR
INDICTMENT ASSENTED TO BY HIM, OR ON ACCOUNT OF HIS BEING OR HAVING
BEEN SUCH JUROR, OR INJURES ANY SUCH OFFICER, COMMISSIONER, OR OTHER
COMMITTING MAGISTRATE IN HIS PERSON OR PROPERTY ON ACCOUNT OF THE
PERFORMANCE OF HIS OFFICIAL DUTIES, OR CORRUPTLY OR BY THREATS OR
FORCE, OR BY ANY THREATENING LETTER OR COMMUNICATION, INFLUENCES,
OBSTRUCTS, OR IMPEDES, OR ENDEAVORS TO INFLUENCE, OBSTRUCT, OR IMPEDE,
THE DUE ADMINISTRATION OF JUSTICE, SHALL BE FINED NOT MORE THAN $5,000
OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH."    FN2  THE
INDICTMENT CONTAINED TWO OTHER COUNTS CHARGING SIMILAR OFFENSES WITH
RESPECT TO THE EARLIER TRIAL OF THE SAME DEFENDANT.  THE GOVERNMENT
DISMISSED ONE OF THESE COUNTS, AND THE PETITIONER WAS ACQUITTED ON THE
OTHER. 

FN3  A TRANSCRIPT OF THE RECORDING IS REPRODUCED AS AN APPENDIX TO
THIS OPINION. 

FN4  IT IS ARGUED THAT IN LOPEZ THE PETITIONER KNEW THAT THE PERSON TO
WHOM HE OFFERED A BRIBE WAS A FEDERAL OFFICER.  BUT, EVEN ASSUMING
THERE MIGHT OTHERWISE BE SOME FORCE TO THIS DISTINCTION, IT IS ENOUGH
TO POINT OUT THAT IN THE PRESENT CASE THE PETITIONER ALSO KNEW HE WAS
TALKING TO A LAW ENFORCEMENT OFFICER - A MEMBER OF THE NASHVILLE POLICE
DEPARTMENT. 

FN5  THE RELEVANT PORTION OF THIS AFFIDAVIT WAS AS FOLLOWS: 

"ON NOVEMBER 7, 1963, I WAS IN MR. OSBORN'S OFFICE GOING OVER THE
RESULTS OF MY INVESTIGATION.  I WAS AWARE THAT THE JURY PANEL WHICH I
HAD BEEN INVESTIGATING WAS THE PANEL ASSIGNED TO JUDGE WILLIAM E.
MILLER.  MR. OSBORN AND I GOT INTO A DISCUSSION OF THE JURY PANEL
ASSIGNED TO JUDGE FRANK GRAY, JR.  THIS JURY PANEL LIST HAD PREVIOUSLY
BEEN SHOWN TO ME BY JOHN POLK, AN INVESTIGATOR FOR MR. OSBORN.  POLK
TOLD ME AT THAT TIME THAT HE WAS INVESTIGATING THE JURY PANEL ASSIGNED
TO JUDGE GRAY.  AT THAT TIME, I MENTIONED TO POLK THAT I KNEW THREE OF
THE PEOPLE ON THE JURY PANEL.  IN DISCUSSING THE PANEL WITH MR. OSBORN,
I AGAIN MENTIONED THAT I KNEW THREE OF THE PEOPLE ON THE JURY PANEL. 
MR. OSBORN SAID, 'YOU DO?  WHY DIDN'T YOU TELL ME?'  I TOLD MR. OSBORN
I HAD TOLD JOHN POLK AND ASSUMED THAT JOHN POLK HAD TOLD HIM.  MR.
OSBORN SAID THAT POLK HAD NOT TOLD HIM AND SUGGESTED THAT WE DISCUSS
THE MATTER FURTHER.  WE THEN LEFT MR. OSBORN'S OFFICE AND WALKED OUT
ONTO THE STREET TO DISCUSS THE MATTER FURTHER.  MR. OSBORN ASKED ME HOW
WELL I KNEW THE THREE PROSPECTIVE JURORS.  I TOLD HIM THAT I KNEW MR.
RALPH A. ELLIOTT, SPRINGFIELD, TENNESSEE, THE BEST SINCE HE WAS MY
COUSIN.   MR. OSBORN ASKED ME WHETHER I KNEW HIM WELL ENOUGH TO TALK TO
HIM ABOUT ANYTHING.  I SAID THAT I THOUGHT I DID.  MR. OSBORN THEN
SAID, 'GO CONTACT HIM RIGHT AWAY.  SIT DOWN AND TALK TO HIM AND GET HIM
ON OUR SIDE.  WE WANT HIM ON THE JURY.'  I TOLD MR. OSBORN THAT I
THOUGHT MR. ELLIOTT WAS NOT IN VERY GOOD FINANCIAL POSITION AND MR.
OSBORN SAID, 'GOOD, GO SEE HIM RIGHT AWAY.'" 

FN6  THE RECORDING DEVICE DID NOT OPERATE PROPERLY ON THE OCCASION OF
VICK'S VISIT TO THE PETITIONER'S OFFICE ON NOVEMBER 8, AND VICK MADE A
WRITTEN STATEMENT OF WHAT OCCURRED DURING THAT MEETING.  THE GOVERNMENT
LAWYERS REPORTED THESE CIRCUMSTANCES TO DISTRICT JUDGE MILLER, WHO THEN
AUTHORIZED THE USE OF THE RECORDER ON NOVEMBER 11, UNDER THE SAME
CONDITIONS: 

"I SAID ON THAT SECOND OCCASION THE SAME AS I DID ON THE FIRST
OCCASION:  THAT THE TAPE RECORDER SHOULD BE USED UNDER PROPER
SURVEILLANCE, SUPERVISION, TO SEE THAT IT WAS NOT FAKED IN ANY WAY, AND
TO TAKE EVERY PRECAUTION TO DETERMINE THAT IT WAS USED IN A FAIR
MANNER, SO THAT WE COULD GET AT THE BOTTOM OF IT AND DETERMINE WHAT THE
TRUTH WAS." 

FN7  "I ALSO SHARE THE OPINION OF MR. JUSTICE BRENNAN THAT THE
FANTASTIC ADVANCES IN THE FIELD OF ELECTRONIC COMMUNICATION CONSTITUTE
A GREAT DANGER TO THE PRIVACY OF THE INDIVIDUAL; THAT INDISCRIMINATE
USE OF SUCH DEVICES IN LAW ENFORCEMENT RAISES GRAVE CONSTITUTIONAL
QUESTIONS UNDER THE FOURTH AND FIFTH AMENDMENTS; AND THAT THESE
CONSIDERATIONS IMPOSE A HEAVIER RESPONSIBILITY ON THIS COURT IN ITS
SUPERVISION OF THE FAIRNESS OF PROCEDURES IN THE FEDERAL COURT SYSTEM. 
HOWEVER, I DO NOT BELIEVE THAT, AS A RESULT, ALL USES OF SUCH DEVICES
SHOULD BE PROSCRIBED EITHER AS UNCONSTITUTIONAL OR AS UNFAIR LAW
ENFORCEMENT METHODS."  LOPEZ V. UNITED STATES, 373 U.S., AT 441
(CONCURRING OPINION OF THE CHIEF JUSTICE). 

FN8  373 U.S., AT 463. 

FN9  "THE REQUIREMENTS OF THE FOURTH AMENDMENT ARE NOT INFLEXIBLE, OR
OBTUSELY UNYIELDING TO THE LEGITIMATE NEEDS OF LAW ENFORCEMENT.  IT IS
AT LEAST CLEAR THAT 'THE PROCEDURE OF ANTECEDENT JUSTIFICATION BEFORE A
MAGISTRATE THAT IS CENTRAL TO THE FOURTH AMENDMENT,' OHIO EX REL. EATON
V. PRICE, 364 U.S. 263, 272 (SEPARATE OPINION); SEE MCDONALD V. UNITED
STATES, 335 U.S. 451, 455; ABEL V. UNITED STATES, 362 U.S. 217, 251-252
(DISSENTING OPINION), COULD BE MADE A PRECONDITION OF LAWFUL ELECTRONIC
SURVEILLANCE  ...  ."  LOPEZ V. UNITED STATES, 373 U.S., AT 464
(DISSENTING OPINION OF MR. JUSTICE BRENNAN). 

FN10  THE PETITIONER'S TRIAL COUNSEL EXPLICITLY CONCEDED THAT THE
ENTRAPMENT ISSUE WAS FOR THE JURY TO RESOLVE. 

FN11  THE PETITIONER FURTHER ARGUES, WITH RESPECT TO THE ENTRAPMENT
DEFENSE, THAT THE JURY INSTRUCTIONS WERE ERRONEOUS IN TWO RESPECTS, AND
THAT GOVERNMENT REBUTTAL EVIDENCE WAS IMPROPERLY RECEIVED. 

IT IS URGED THAT THE TRIAL JUDGE COMMITTED ERROR IN FAILING TO
INSTRUCT THE JURY THAT IF THEY ACQUITTED THE PETITIONER UNDER COUNT 2
(CHARGING AN ENDEAVOR TO BRIBE A JUROR AT THE 1962 HOFFA TRIAL), THEY
MUST NOT CONSIDER ANY EVIDENCE UNDER THAT COUNT IN DETERMINING THE
PETITIONER'S GUILT UNDER COUNT 1.  SUCH AN INSTRUCTION WAS NOT
REQUESTED.  RULE 30, FED. RULES CRIM. PROC. MOREOVER, IT IS SETTLED
THAT WHEN THE DEFENSE OF ENTRAPMENT IS RAISED, EVIDENCE OF PRIOR
CONDUCT TENDING TO SHOW THE DEFENDANT'S PREDISPOSITION TO COMMIT THE
OFFENSE CHARGED IS ADMISSIBLE.  SEE SORRELLS V. UNITED STATES, 287 U.S.
435, 451. 

THE PETITIONER FURTHER ARGUES THAT THE INSTRUCTIONS ON ENTRAPMENT
ERRONEOUSLY LEFT TO THE JURY THE QUESTION OF WHETHER THE TAPE RECORDING
HAD BEEN OBTAINED BY LAWFUL MEANS.  WE DO NOT SO UNDERSTAND THE TRIAL
JUDGE'S LANGUAGE, AND NEITHER, APPARENTLY, DID TRIAL COUNSEL, BECAUSE
NO OBJECTION WAS MADE TO THE INSTRUCTIONS AS GIVEN.  RULE 30, FED.
RULES CRIM. PROC. MOREOVER, SUCH AN INSTRUCTION WOULD HAVE BEEN
FAVORABLE TO THE PETITIONER, BECAUSE THE JUDGE, IN DENYING THE EARLIER
DEFENSE MOTION TO SUPPRESS, HAD ALREADY RULED THAT THE RECORDING HAD
BEEN LAWFULLY OBTAINED. 

FINALLY, OBJECTION IS MADE TO PERMITTING THE GOVERNMENT ON REBUTTAL
TO INTRODUCE VICK'S NOVEMBER 8 AFFIDAVIT AND SHOW THE CIRCUMSTANCES
UNDER WHICH THE TAPE RECORDING HAD BEEN AUTHORIZED BY THE JUDGES.  BUT
THIS EVIDENCE WAS A RELEVANT RESPONSE TO THE PETITIONER'S TESTIMONY
THAT IT WAS VICK WHO, AT THE INSTIGATION OF THE GOVERNMENT, HAD
INITIATED THE PLAN TO APPROACH ELLIOTT AS EARLY AS OCTOBER 28. 

FN12  SEE N. 1, SUPRA. 

FN13  COMPARE PEOPLE V. JAFFE, 185 N.Y. 497, 78 N.E. 169, WITH PEOPLE
V. GARDNER, 144 N.Y. 119, 38 N.E. 1003.  SEE WECHSLER, JONES & KORN,
THE TREATMENT OF INCHOATE CRIMES IN THE MODEL PENAL CODE OF THE
AMERICAN LAW INSTITUTE:  ATTEMPT, SOLICITATION, AND CONSPIRACY, 61 COL.
L. REV. 571, 578-585 (1961). 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

               APPENDIX TO OPINION OF THE COURT. 

TRANSCRIPT OF THE RECORDING OF THE VICK-OSBORN CONVERSATION OF
NOVEMBER 11, 1963: 

"GIRL:  YOU CAN GO IN NOW. 

"VICK:  O.K. HONEY.  HELLO, MR. OSBORN. 

"OSBORN:  HELLO BOB, CLOSE THE DOOR, MY FRIEND, AND LET'S SEE WHAT'S
UP. 

"VICK:  HOW'RE YOU DOING? 

"OSBORN:  NO GOOD.  HOW'RE YOU DOING? 

"VICK:  OH, PRETTY GOOD.  YOU WANT TO TALK IN HERE? 

"OSBORN:  HOW FAR DID YOU GO? 

"VICK:  WELL, PRETTY FAR. 

"OSBORN:  MAYBE WE'D BETTER  ...  . 

"VICK:  WHATEVER YOU SAY.  DON'T MAKE ANY DIFFERENCE TO ME. 

"OSBORN:  (INAUDIBLE WHISPER.): 

"VICK:  I'M COMFORTABLE, BUT ER, THIS CHAIR SETS GOOD, BUT WE'LL TAKE
OFF IF YOU WANT TO, BUT: 

"OSBORN:  DID YOU TALK TO HIM? 

"VICK:  HUH? 

"OSBORN:  DID YOU TALK TO HIM? 

"VICK:  YEAH.  I WENT DOWN TO SPRINGFIELD SATURDAY MORNING AND TALKED
TO ER. 

"OSBORN:  ELLIOTT? 

"VICK:  ELLIOTT. 

"OSBORN:  (INAUDIBLE WHISPER.) 

"VICK:  HUH? 

"OSBORN:  IS THERE ANY CHANCE IN THE WORLD THAT HE WOULD REPORT YOU? 

"VICK:  THAT HE WILL REPORT ME TO THE FBI?  WHY OF COURSE, THERE'S
ALWAYS A CHANCE, BUT I WOULDN'T GOT INTO IT IF I THOUGHT IT WAS VERY,
VERY GREAT. 

"OSBORN:  (LAUGHED). 

"VICK:  YOU UNDERSTAND THAT. 

"OSBORN:  (LAUGHING.)  YEAH, I DO KNOW.  OLD BOB FIRST. 

"VICK:  THAT'S RIGHT.  DON'T WORRY.  I'M GONNA TAKE CARE OF OLD BOB
AND I KNOW, AND OF COURSE I'M DEPENDING ON YOU TO TAKE CARE OF OLD BOB
IF ANYTHING, IF ANYTHING GOES WRONG. 

"OSBORN:  I AM.  I AM.  WHY CERTAINLY. 

"VICK:  ER, WE HAD COFFEE SATURDAY MORNING AND NOW HE HAD PREVIOUSLY
TOLD YOU THAT IT'S THE SON. 

"OSBORN:  IT IS? 

"VICK:  YES, AND NOT THE FATHER. 

"OSBORN:  THAT'S RIGHT. 

"VICK:  THE SON IS RALPH ALDEN ELLIOTT AND THE FATHER IS RALPH
DONNAL.  ALDEN IS ER - MARIE, THAT'S RALPH'S WIFE WHO KILLED HERSELF. 
THAT WAS HER MAIDEN NAME, ALDEN, SEE?  ANYWAY, WE HAD COFFEE AND HE'S
BEEN ON A HUNG JURY UP HERE THIS WEEK, SEE? 

"OSBORN:  I KNOW THAT. 

"VICK:  WELL, I DIDN'T KNOW THAT BUT ANYWAY, HE BROUGHT THAT UP SO HE
GOT TO TALKING ABOUT THE LAST HOFFA CASE BEING HUNG, YOU KNOW, AND SOME
GUY REFUSED $10,000 TO HANG IT, SEE, AND HE SAID THE GUY WAS CRAZY, HE
SHOULD'VE TOOK IT, YOU KNOW, AND SO WE TALKED ABOUT AND SO JUST
DISCREETLY, YOU KNOW, AND COURSE I'M REALLY PLAYING THIS THING SLOW,
THAT'S THE REASON I ASKED YOU IF YOU WANTED A LAWYER DOWN THERE TO
HANDLE IT OR YOU WANTED ME TO HANDLE IT, CAUSE I'M GONNA PLAY IT EASY. 

"OSBORN: THE LESS PEOPLE, THE BETTER. 

"VICK:  THAT'S RIGHT.  WELL, I'M GONNA PLAY IT SLOW AND EASY MYSELF
AND ER, ANYWAY, WE TALKED ABOUT ER, SOMETHING ABOUT FIVE THOUSAND NOW
AND FIVE THOUSAND LATER, SEE, SO HE DID, HE BROUGHT UP FIVE THOUSAND
SEE, AND TALKING ABOUT HOW THEY PAY IT OFF YOU KNOW AND THINGS LIKE
THAT.  I DON'T KNOW WHETHER HE SUSPECTED WHY I WAS THERE OR NOT CAUSE I
DON'T JUST DROP OUT OF THE BLUE TO VISIT HIM SOCIALLY, YOU KNOW.  WE'RE
FRIENDS, CLOSE KIN, COUSINS, BUT I DON'T ORDINARILY JUST, WE DON'T
FRATERNIZE, YOU KNOW, AND ER, SO HE SEEMED VERY RECEPTIVE FOR ER, TO
HANG THE THING FOR FIVE NOW AND FIVE LATER.  NOW, ER, I THOUGHT I WOULD
REPORT BACK TO YOU AND SEE WHAT YOU SAY. 

"OSBORN:  THAT'S FINE]  THE THING TO DO IS SET IT UP FOR A POINT
LATER SO YOU WON'T BE RUNNING BACK AND FORTH. 

"VICK:  YEAH. 

"OSBORN:  THEN TELL HIM IT'S A DEAL. 

"VICK:  IT'S WHAT? 

"OSBORN:  THAT IT'S A DEAL.  WHAT WE'LL HAVE TO DO - WHEN IT GETS
DOWN TO THE TRIAL DATE, WHEN WE KNOW THE DATE, TOMORROW FOR EXAMPLE IF
THE SUPREME COURT RULES AGAINST US, WELL WITHIN A WEEK WE'LL KNOW WHEN
THE TRIAL COMES.  THEN HE HAS TO BE CERTAIN THAT WHEN HE GETS ON, HE'S
GOT TO KNOW THAT HE'LL JUST BE TALKING TO YOU AND NOBODY ELSE. 

"VICK:  SOCIAL STRICTLY. 

"OSBORN:  OH YEAH. 

"VICK:  I'VE GOT MY STORY ALL FIXED ON THAT. 

"OSBORN:  THEN HE WILL HAVE TO KNOW WHERE TO, HE WILL HAVE TO KNOW
WHERE TO COME. 

"VICK:  WELL, ER  ...  . 

"OSBORN:  AND, HE'LL HAVE TO KNOW WHEN. 

"VICK:  ER, DO YOU WANT TO SEE HIM YOURSELF?  YOU WANT ME TO HANDLE
IT OR WHAT? 

"OSBORN:  UH HUH.  YOU'RE GONNA HANDLE IT YOURSELF. 

"VICK:  ALL RIGHT.  YOU WANT TO KNOW IT WHEN HE'S READY, WHEN I THINK
HE'S READY FOR THE FIVE THOUSAND.  IS THAT RIGHT? 

"OSBORN:  WELL NO, WHEN HE GETS ON THE PANEL, ONCE HE GETS ON THE
JURY.  PROVIDED HE GETS ON THE PANEL. 

"VICK:  YEAH.  OH YEAH.  THAT'S RIGHT.  THAT'S RIGHT.  WELL NOW, HE'S
ON THE NUMBER ONE. 

"OSBORN:  I KNOW, BUT NOW  ...  . 

"VICK:  BUT YOU DON'T KNOW THAT WOULD BE THE ONE. 

"OSBORN:  WELL, I KNOW THIS, THAT IF WE GO TO TRIAL BEFORE THAT JURY
HE'LL BE ON IT BUT SUPPOSE THE GOVERNMENT CHALLENGES HIM OVER BEING ON
ANOTHER HUNG JURY. 

"VICK:  OH, I SEE. 

"OSBORN:  WHERE ARE WE THEN? 

"VICK:  OH, I SEE.  I SEE. 

"OSBORN:  SO WE HAVE TO BE CERTAIN THAT HE MAKES IT ON THE JURY. 

"VICK:  WELL NOW, HERE'S ONE THING, TOMMY.  HE'S A MEMBER OF THE CWA,
SEE, AND THE TEAMSTERS, OR: 

"OSBORN:  WELL, THEY'LL KNOCK HIM OFF. 

"VICK:  NAW, THEY WON'T.  THEY'VE HAD A FIGHT WITH THE CWA, SEE? 

"OSBORN:  I THINK EVERYTHING LOOKS PERFECT. 

"VICK:  I THINK IT'S IN OUR FAVOR, SEE.  I THINK THAT'LL WORK TO OUR
FAVOR. 

"OSBORN:  THAT'S WHY I'M SO ANXIOUS THAT THEY ACCEPT HIM. 

"VICK:  I THINK THEY WOULD, TOO.  I DON'T THINK THEY WOULD HAVE A
REASON IN THE WORLD TO.  I DON'T THINK THAT I'M UNDER ANY SURVEILLANCE
OR SUSPICION OR ANYTHING LIKE THAT. 

"OSBORN:  I DON'T THINK SO. 

"VICK:  I DON'T KNOW.  I DON'T FRANKLY THINK, SINCE LAST YEAR AND
SINCE I TOLD THEM I WAS THROUGH WITH THE THING, I DON'T THINK I HAVE
BEEN.  NOW FRED,: 

"OSBORN:  I DON'T THINK YOU HAVE EITHER. 

"VICK:  YOU KNOW FRED AND I MAY NOT (PAUSE), HE MAY BE TOO SUSPICIOUS
AND I MAY NOT BE SUSPICIOUS ENOUGH.  I DON'T KNOW. 

"OSBORN:  I THINK YOU'VE GOT IT SIZED UP EXACTLY RIGHT. 

"VICK:  WELL, I THINK SO. 

"OSBORN:  NOW, YOU KNOW YOU PROMISED THAT FELLA THAT YOU WOULD HAVE
NOTHING MORE TO DO WITH THAT CASE. 

"VICK:  THAT'S RIGHT. 

"OSBORN:  AT THAT TIME YOU HAD ALREADY CHECKED ON SOME OF THE JURY
THAT WENT INTO MILLER'S COURT.  YOU WENT AHEAD AND DID THAT. 

"VICK:  WELL, HERE'S ANOTHER THING, TOMMY. 

"OSBORN:  - CHURCH AFFILIATIONS, BACKGROUND, OCCUPATION AND THAT SORT
OF THING ON THOSE THAT WENT INTO MILLER'S COURT.  YOU DIDN'T EVEN TOUCH
THEM.  YOU DIDN'T EVEN INVESTIGATE THE PEOPLE THAT WERE IN JUDGE GRAY'S
COURT.    "VICK:  WELL, HERE'S THE THING ABOUT IT, TOMMY.  SOON AS THIS
DAMN THING'S OVER, THEY'RE GONNA KICK MY  ...  OUT ANYWAY, SO PROBABLY
FRED'S TOO.  SO, I MIGHT AS WELL GET OUT OF IT WHAT I CAN.  THE WAY I
LOOK AT IT.  I MIGHT BE WRONG CAUSE THE TENNESSEAN IS NOT GONNA HAVE
ANYTHING TO DO WITH ANYBODY THAT'S HAD ANYTHING TO DO WITH THE CASE NOW
OR IN THE PAST, YOU KNOW THAT.  CAUSE THEY'RE TOO CLOSE TO THE
KENNEDY'S. 

"OSBORN:  ALL RIGHT, SO WE'LL LEAVE IT TO YOU.  THE ONLY THING TO DO
WOULD BE TO TELL HIM, IN OTHER WORDS YOUR NEXT CONTACT WITH HIM WOULD
BE TO TELL HIM IF HE WANTS THAT DEAL, HE'S GOT IT. 

"VICK:  O.K. 

"OSBORN:  THE ONLY THING IT DEPENDS UPON IS HIM BEING ACCEPTED ON THE
JURY.  IF THE GOVERNMENT CHALLENGES HIM THERE WILL BE NO DEAL. 

"VICK:  ALL RIGHT.  IF HE IS SEATED. 

"OSBORN:  IF HE'S SEATED. 

"VICK:  HE CAN EXPECT FIVE THOUSAND THEN AND: 

"OSBORN:  IMMEDIATELY. 

"VICK:  IMMEDIATELY AND THEN FIVE THOUSAND WHEN IT'S HUNG.  IS THAT
RIGHT? 

"OSBORN:  ALL THE WAY, NOW] 

"VICK:  OH, HE'S GOT TO STAY ALL THE WAY? 

"OSBORN:  ALL THE WAY. 

"VICK:  NO SWING.  YOU DON'T WANT HIM TO SWING LIKE WE DISCUSSED ONCE
BEFORE.  YOU WANT HIM: 

"OSBORN:  OF COURSE, HE COULD BE GUIDED BY HIS OWN B - , BUT THAT
ALWAYS LEAVES A QUESTION.  THE THING TO DO IS JUST STICK WITH HIS
CROWD.  THAT WAY WE'LL LOOK BETTER AND MAYBE THEY'LL HAVE TO GO TO
ANOTHER TRIAL IF WE GET A PRETTY GOOD COUNT. 

"VICK:  OH.  NOW, I'M GOING TO PLAY IT JUST LIKE YOU TOLD ME
PREVIOUSLY, TO REASSURE HIM AND KEEP HIM FROM GETTING PANICKY, YOU
KNOW.  I HAVE REASON TO BELIEVE THAT HE WON'T BE ALONE, YOU KNOW. 

"OSBORN:  YOU ASSURE HIM OF THAT.  100%. 

"VICK:  AND TO KEEP ANY FEARS DOWN THAT HE MIGHT HAVE, SEE? 

"OSBORN:  TELL HIM THERE WILL BE AT LEAST TWO OTHERS WITH HIM. 

"VICK:  NOW, ANOTHER THING, I WANT TO ASK YOU DOES JOHN KNOW
ANYTHING.  YOU KNOW, I ORIGINALLY TOLD JOHN ABOUT ME KNOWING. 

"OSBORN:  HE DOES NOT KNOW ONE THING. 

"VICK:  HE DOESN'T KNOW.  O.K. 

"OSBORN:  HE'LL COME IN AND RECOMMEND THIS MAN - AND I'LL SAY WELL
JUST LET IT ALONE, YOU KNOW. 

"VICK:  YEAH.  SO HE DOESN'T KNOW ANYTHING ABOUT THIS AT ALL? 

"OSBORN:  NOTHING. 

"VICK:  NOW HE HASN'T SEEN ME.  WHEN I FIRST CAME HERE HE WAS IN
HERE, SEE. 

"OSBORN:  - WE'LL KEEP IT SECRET.  THE WAY WE KEEP IT SAFE IS THAT
NOBODY KNOWS ABOUT IT BUT YOU AND ME - WHERE COULD THEY EVER GO? 

"VICK:  WELL THAT'S IT, I RECKON, OR I'LL PROBABLY GO DOWN THERE. 
SEE, I'M OFF TONIGHT.  I'M OFF SUNDAY AND MONDAY, SEE.  THAT'S WHY I
TALKED TO YOU YESTERDAY.  I HAD A NOTION TO GO DOWN THERE YESTERDAY
CAUSE I WAS OFF LAST NIGHT AND I'M OFF AGAIN TONIGHT. 

"OSBORN:  IT WILL BE A WEEK AT LEAST UNTIL WE KNOW THE TRIAL DATE. 

"VICK:  O.K.  YOU WANT TO HOLD UP DOING ANYTHING FURTHER TILL WE
KNOW. 

"OSBORN:  UNLESS HE SHOULD HAPPEN TO GIVE YOU A CALL AND - SOMETHING
LIKE THAT, THEN YOU JUST TELL HIM, WHENEVER YOU HAPPEN TO RUN INTO
HIM. 

"VICK:  WELL, HE'S NOT APT TO CALL, CAUSE SEE: 

"OSBORN:  YOU WERE VERY CIRCUMSPECT. 

"VICK:  YEAH.  WE HAVEN'T TALKED REALLY DEFINITE AND I THINK HE
CLEARLY UNDERSTANDS.  NOW, HE MIGHT, IT SEEMED TO ME THAT MAYBE HE
THOUGHT I WAS JOKING OR, YOU KNOW. 

"OSBORN:  THAT'S A GOOD WAY TO LEAVE IT, HE'S THE ONE THAT BROUGHT IT
UP. 

"VICK:  THAT'S RIGHT. 

"OSBORN:  - . 

"VICK:  WELL, I KNEW HE WOULD BEFORE I WENT DOWN THERE. 

"OSBORN:  WELL, - . 

"VICK:  HUH? 

"OSBORN:  I'LL BE TALKING TO YOU. 

"VICK:  I'LL WAIT A DAY OR TWO. 

"OSBORN:  YEAH.  I WOULD. 

"VICK:  BEFORE I CONTACT HIM.  DON'T WANT TO SEEM ANXIOUS AND ER: 

"OSBORN: - . 

"VICK:  O.K.  SEE YOU LATER." 

MR. JUSTICE DOUGLAS, DISSENTING IN OSBORN V. UNITED STATES AND LEWIS
V. UNITED STATES, ANTE, P. 206; AND CONCURRING WITH MR. JUSTICE CLARK
IN HOFFA V. UNITED STATES, ANTE, P. 293. 

THESE CASES PRESENT IMPORTANT QUESTIONS OF FEDERAL LAW CONCERNING THE
PRIVACY OF OUR CITIZENS AND THE BREACH OF THAT PRIVACY BY GOVERNMENT
AGENTS.  LEWIS V. UNITED STATES INVOLVES THE BREACH OF THE PRIVACY OF
THE HOME BY A GOVERNMENT AGENT POSING IN A DIFFERENT ROLE FOR THE
PURPOSE OF OBTAINING EVIDENCE FROM THE HOMEOWNER TO CONVICT HIM OF A
CRIME.  HOFFA V. UNITED STATES RAISES THE QUESTION WHETHER THE
GOVERNMENT IN THAT CASE INDUCED A FRIEND OF HOFFA'S TO INSINUATE
HIMSELF INTO HOFFA'S ENTOURAGE, THERE TO SERVE AS THE GOVERNMENT'S EYES
AND EARS FOR THE PURPOSE OF OBTAINING INCRIMINATING EVIDENCE.  OSBORN
V. UNITED STATES PRESENTS THE QUESTION WHETHER THE GOVERNMENT MAY
COMPOUND THE INVASION OF PRIVACY BY USING HIDDEN RECORDING DEVICES TO
RECORD INCRIMINATING STATEMENTS MADE BY THE UNWARY SUSPECT TO A SECRET
FEDERAL AGENT. 

THUS THESE FEDERAL CASES PRESENT VARIOUS ASPECTS OF THE
CONSTITUTIONAL RIGHT OF PRIVACY.  PRIVACY, THOUGH NOT EXPRESSLY
MENTIONED IN THE CONSTITUTION, IS ESSENTIAL TO THE EXERCISE OF OTHER
RIGHTS GUARANTEED BY IT.  AS WE RECENTLY SAID IN GRISWOLD V.
CONNECTICUT, 381 U.S. 479, 484: 

"SPECIFIC GUARANTEES IN THE BILL OF RIGHTS HAVE PENUMBRAS, FORMED BY
EMANATIONS FROM THOSE GUARANTEES THAT HELP GIVE THEM LIFE AND SUBSTANCE
...  .  VARIOUS GUARANTEES CREATE ZONES OF PRIVACY.  THE RIGHT OF
ASSOCIATION CONTAINED IN THE PENUMBRA OF THE FIRST AMENDMENT IS ONE
...  . THE THIRD AMENDMENT IN ITS PROHIBITION AGAINST THE QUARTERING OF
SOLDIERS 'IN ANY HOUSE' IN TIME OF PEACE WITHOUT THE CONSENT OF THE
OWNER IS ANOTHER FACET OF THAT PRIVACY.  THE FOURTH AMENDMENT
EXPLICITLY AFFIRMS THE 'RIGHT OF THE PEOPLE TO BE SECURE IN THEIR
PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES.'  THE FIFTH AMENDMENT IN ITS SELF-INCRIMINATION CLAUSE
ENABLES THE CITIZEN TO CREATE A ZONE OF PRIVACY WHICH GOVERNMENT MAY
NOT FORCE HIM TO SURRENDER TO HIS DETRIMENT.  THE NINTH AMENDMENT
PROVIDES:  'THE ENUMERATION IN THE CONSTITUTION, OF CERTAIN RIGHTS,
SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE
PEOPLE.'" 

WE ARE RAPIDLY ENTERING THE AGE OF NO PRIVACY, WHERE EVERYONE IS OPEN
TO SURVEILLANCE AT ALL TIMES; WHERE THERE ARE NO SECRETS FROM
GOVERNMENT.  THE AGRESSIVE BREACHES OF PRIVACY BY THE GOVERNMENT
INCREASE BY GEOMETRIC PROPORTIONS.  WIRETAPPING AND "BUGGING" RUN
RAMPANT, WITHOUT EFFECTIVE JUDICIAL OR LEGISLATIVE CONTROL. 

SECRET OBSERVATION BOOTHS IN GOVERNMENT OFFICES AND CLOSED TELEVISION
CIRCUITS IN INDUSTRY, EXTENDING EVEN TO REST ROOMS, ARE COMMON.  (FN1)
OFFICES, CONFERENCE ROOMS, HOTEL ROOMS, AND EVEN BEDROOMS (SEE IRVINE
V. CALIFORNIA, 347 U.S. 128) ARE "BUGGED" FOR THE CONVENIENCE OF
GOVERNMENT.  PEEPHOLES IN MEN'S ROOMS ARE THERE TO CATCH HOMOSEXUALS. 
SEE SMAYDA V. UNITED STATES, 352 F.2D 251.   PERSONALITY TESTS SEEK TO
FERRET OUT A MAN'S INNERMOST THOUGHTS ON FAMILY LIFE, RELIGION, RACIAL
ATTITUDES, NATIONAL ORIGIN, POLITICS, ATHEISM, IDEOLOGY, SEX, AND THE
LIKE.  (FN2)  FEDERAL AGENTS ARE OFTEN "WIRED" SO THAT THEIR
CONVERSATIONS ARE EITHER RECORDED ON THEIR PERSONS (LOPEZ V. UNITED
STATES, 373 U.S. 427) OR TRANSMITTED TO TAPE RECORDERS SOME BLOCKS
AWAY.  (FN3)  THE FOOD AND DRUG ADMINISTRATION RECENTLY PUT A SPY IN A
CHURCH ORGANIZATION.  (FN4)  REVENUE AGENTS HAVE GONE IN THE DISGUISE
OF COAST GUARD OFFICERS.  (FN5)  THEY HAVE BROKEN AND ENTERED HOMES TO
OBTAIN EVIDENCE.  (FN6) 

POLYGRAPH TESTS OF GOVERNMENT EMPLOYEES AND OF EMPLOYEES IN INDUSTRY
ARE RAMPANT.  (FN7)  THE DOSSIERS ON ALL CITIZENS MOUNT IN NUMBER AND
INCREASE IN SIZE.  NOW THEY ARE BEING PUT ON COMPUTERS SO THAT BY
PRESSING ONE BUTTON ALL THE MISERABLE, THE SICK, THE SUSPECT, THE
UNPOPULAR, THE OFFBEAT PEOPLE OF THE NATION CAN BE INSTANTLY
IDENTIFIED.  (FN8) 

THESE EXAMPLES AND MANY OTHERS DEMONSTRATE AN ALARMING TREND WHEREBY
THE PRIVACY AND DIGNITY OF OUR CITIZENS IS BEING WHITTLED AWAY BY
SOMETIMES IMPERCEPTIBLE STEPS.  TAKEN INDIVIDUALLY, EACH STEP MAY BE OF
LITTLE CONSEQUENCE.  BUT WHEN VIEWED AS A WHOLE, THERE BEGINS TO EMERGE
A SOCIETY QUITE UNLIKE ANY WE HAVE SEEN - A SOCIETY IN WHICH GOVERNMENT
MAY INTRUDE INTO THE SECRET REGIONS OF MAN'S LIFE AT WILL. 

WE HAVE HERE IN THE DISTRICT OF COLUMBIA SQUADS OF OFFICERS WHO WORK
THE MEN'S ROOMS IN PUBLIC BUILDINGS TRYING TO GET HOMOSEXUALS TO
SOLICIT THEM.  SEE BEARD V. STAHR, 200 F. SUPP.  766, 768, JUDGMENT
VACATED, 370 U.S. 41.  UNDERCOVER AGENTS OF "SPECIAL EMPLOYEES" OF
NARCOTICS DIVISIONS OF CITY, STATE, AND FEDERAL POLICE ACTIVELY SOLICIT
SALES OF NARCOTICS.  SEE GENERALLY 31 U. CHI.  L. REV. 137, 74 YALE
L.J. 942.  POLICE ARE INSTRUCTED TO PANDER TO THE WEAKNESSES AND CRAVEN
MOTIVES OF FRIENDS AND ACQUAINTANCES OF SUSPECTS, IN ORDER TO INDUCE
THEM TO INFORM.  SEE GENERALLY HARNEY & CROSS, THE INFORMER IN LAW
ENFORCEMENT 33-44 (1960).  IN MANY CASES THE CRIME HAS NOT YET BEEN
COMMITTED.  THE UNDERCOVER AGENT MAY ENTER A SUSPECT'S HOME AND MAKE A
SEARCH UPON MERE SUSPICION THAT A CRIME WILL BE COMMITTED.  HE IS
INDEED OFTEN THE INSTIGATOR OF, AND ACTIVE PARTICIPANT IN, THE CRIME -
AN AGENT PROVOCATEUR.  OF COURSE, WHEN THE SOLICITATION BY THE
CONCEALED GOVERNMENT AGENT GOES SO FAR AS TO AMOUNT TO ENTRAPMENT, THE
PROSECUTION FAILS.  SORRELLS V. UNITED STATES, 287 U.S. 435; SHERMAN V.
UNITED STATES, 356 U.S. 369.  BUT THE "DIRTY BUSINESS" (OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 470 (MR. JUSTICE HOLMES DISSENTING)) DOES
NOT BEGIN OR END WITH ENTRAPMENT.  ENTRAPMENT IS MERELY A FACET OF A
MUCH BROADER PROBLEM.  TOGETHER WITH ILLEGAL SEARCHES AND SEIZURES,
COERCED CONFESSIONS, WIRETAPPING, AND BUGGING, IT REPRESENTS LAWLESS
INVASION OF PRIVACY.  IT IS INDICATIVE OF A PHILOSOPHY THAT THE ENDS
JUSTIFY THE MEANS.  (FN9) 

WE ARE HERE CONCERNED WITH THE MANNER IN WHICH GOVERNMENT AGENTS
ENTER PRIVATE HOMES.  IN LEWIS THE UNDERCOVER AGENT APPEARED AS A
PROSPECTIVE CUSTOMER.  TOMORROW HE MAY BE A POLICEMAN DISGUISED AS THE
GROCERY DELIVERYMAN OR TELEPHONE REPAIRMAN, OR EVEN A HEALTH
INSPECTOR.  (FN10)  CF. FRANK V. MARYLAND, 359 U.S. 360; EATON V.
PRICE, 364 U.S. 263. 

WE SAID IN GOULED V. UNITED STATES, 255 U.S. 298, 306: 

"WHETHER ENTRANCE TO THE HOME OR OFFICE OF A PERSON SUSPECTED OF
CRIME BE OBTAINED BY A REPRESENTATIVE OF ANY BRANCH OR SUBDIVISION OF
THE GOVERNMENT OF THE UNITED STATES BY STEALTH, OR THROUGH SOCIAL
ACQUAINTANCE, OR IN THE GUISE OF A BUSINESS CALL, AND WHETHER THE OWNER
BE PRESENT OR NOT WHEN HE ENTERS, ANY SEARCH AND SEIZURE SUBSEQUENTLY
AND SECRETLY MADE IN HIS ABSENCE, FALLS WITHIN THE SCOPE OF THE
PROHIBITION OF THE FOURTH AMENDMENT  ...  ." 

ENTERING ANOTHER'S HOME IN DISGUISE TO OBTAIN EVIDENCE IS A "SEARCH"
THAT SHOULD BRING INTO PLAY ALL THE PROTECTIVE FEATURES OF THE FOURTH
AMENDMENT.  WHEN THE AGENT IN LEWIS HAD REASON FOR BELIEVING THAT
PETITIONER POSSESSED NARCOTICS, A SEARCH WARRANT SHOULD HAVE BEEN
OBTAINED.  (FN11) 

ALMOST EVERY HOME IS AT TIMES USED FOR PURPOSES OTHER THAN EATING,
SLEEPING, AND SOCIAL ACTIVITIES.  ARE THE SANCTITY OF THE HOME AND ITS
PRIVACY STRIPPED AWAY WHENEVER IT IS USED FOR BUSINESS?  IF SO, WHAT
ABOUT THE "MOM AND POP" GROCERY STORE WITH LIVING QUARTERS IN THE
REAR?  WHAT ABOUT GARMENT WORKERS WHO DO PIECEWORK AT HOME?  WHAT ABOUT
SADDLE MAKERS AND SHOEMAKERS WHO HAVE THEIR SHOPS IN THEIR HOMES?  ARE
THOSE PROPRIETORS STRIPPED OF PRIVACY BECAUSE CUSTOMERS COME INTO THE
LIVING QUARTERS ON BUSINESS MATTERS?  WHAT ABOUT THE INSURANCE AGENT
WHO WORKS OUT OF HIS HOME?  IS THE PRIVACY OF HIS HOME SHATTERED
BECAUSE HE SELLS INSURANCE THERE?  AND THE CANDIDATE WHO HOLDS
POLITICAL CONFERENCES IN HIS HOME?  OR THE HOUSEHOLDER WHO CONSULTS
WITH HIS ATTORNEY OR ACCOUNTANT IN HIS HOME?  ARE THEIR HOMES
TRANSFORMED INTO PUBLIC PLACES WHICH THE GOVERNMENT MAY ENTER AT WILL
MERELY BECAUSE THEY ARE OCCASIONALLY USED FOR BUSINESS?  I THINK NOT. 
A HOME IS STILL A SANCTUARY, HOWEVER THE OWNER MAY USE IT.  THERE IS NO
REASON WHY AN OWNER'S FOURTH AMENDMENT RIGHTS CANNOT INCLUDE THE RIGHT
TO OPEN UP HIS HOUSE TO LIMITED CLASSES OF PEOPLE.  AND, WHEN A
HOMEOWNER INVITES A FRIEND OR BUSINESS ACQUAINTANCE INTO HIS HOME, HE
OPENS HIS HOUSE TO A FRIEND OR ACQUAINTANCE, NOT A GOVERNMENT SPY. 

THIS DOES NOT MEAN HE CAN MAKE HIS SANCTUARY INVASION-PROOF AGAINST
GOVERNMENT AGENTS.  THE CONSTITUTION HAS PROVIDED A WAY WHEREBY THE
HOME CAN LAWFULLY BE INVADED, AND THAT IS WITH A SEARCH WARRANT. 
WHERE, AS HERE, THERE IS ENOUGH EVIDENCE TO GET A WARRANT TO MAKE A
SEARCH I WOULD NOT ALLOW THE FOURTH AMENDMENT TO BE SHORT-CIRCUITED. 

WE DOWNGRADE THE FOURTH AMENDMENT WHEN WE FORGIVE NONCOMPLIANCE WITH
ITS MANDATE AND ALLOW THESE EASIER METHODS OF THE POLICE TO THRIVE. 

A HOUSEHOLDER WHO ADMITS A GOVERNMENT AGENT, KNOWING THAT HE IS SUCH,
WAIVES OF COURSE ANY RIGHT OF PRIVACY.  ONE WHO INVITES OR ADMITS AN
OLD "FRIEND" TAKES, I THINK, THE RISK THAT THE "FRIEND" WILL TATTLE AND
DISCLOSE CONFIDENCES OR THAT THE GOVERNMENT WILL WHEEDLE THEM OUT OF
HIM.  THE CASE FOR ME, HOWEVER, IS DIFFERENT WHEN GOVERNMENT PLAYS AN
IGNOBLE ROLE OF "PLANTING" AN AGENT IN ONE'S LIVING ROOM OR USES FRAUD
AND DECEPTION IN GETTING HIM THERE.  THESE PRACTICES ARE AT WAR WITH
THE CONSTITUTIONAL STANDARDS OF PRIVACY WHICH ARE PARTS OF OUR CHOICEST
TRADITION.    THE FORMULA APPROVED TODAY BY THE COURT IN HOFFA V.
UNITED STATES, ANTE, P. 293, MAKES IT POSSIBLE FOR THE GOVERNMENT TO
USE WILLY-NILLY, SON AGAINST FATHER, NEPHEW AGAINST UNCLE, FRIEND
AGAINST FRIEND TO UNDERMINE THE SANCTITY OF THE MOST PRIVATE AND
CONFIDENTIAL OF ALL CONVERSATIONS.  THE COURT TAKES THE POSITION THAT
WHETHER OR NOT THE GOVERNMENT "PLACED" PARTIN IN HOFFA'S COUNCILS IS
IMMATERIAL.  THE QUESTION OF WHETHER THE GOVERNMENT PLANTED PARTIN OR
WHETHER HOFFA WAS MERELY THE VICTIM OF MISPLACED CONFIDENCE IS
DISMISSED AS A "VERBAL CONTROVERSY  ... UNNECESSARY TO A DECISION OF
THE CONSTITUTIONAL ISSUES."  HOFFA V. UNITED STATES, ANTE, AT 295. 
BUT, VERY REAL DIFFERENCES UNDERLIE THE "VERBAL CONTROVERSY."  AS I
HAVE SAID, A PERSON MAY TAKE THE RISK THAT A FRIEND WILL TURN ON HIM
AND REPORT TO THE POLICE.  BUT THAT IS FAR DIFFERENT FROM THE
GOVERNMENT'S "PLANTING" A FRIEND IN A PERSON'S ENTOURAGE SO THAT HE CAN
SECURE INCRIMINATING EVIDENCE.  IN THE ONE CASE, THE GOVERNMENT HAS
MERELY BEEN THE WILLING RECIPIENT OF INFORMATION SUPPLIED BY A FICKLE
FRIEND.  IN THE OTHER, THE GOVERNMENT HAS ACTIVELY ENCOURAGED AND
PARTICIPATED IN A BREACH OF PRIVACY BY SENDING IN AN UNDERCOVER AGENT. 
IF GOULED IS TO BE FOLLOWED, THEN THE GOVERNMENT UNLAWFULLY ENTERS A
MAN'S HOME WHEN ITS AGENT CRAWLS THROUGH A WINDOW, BREAKS DOWN A DOOR,
ENTERS SURREPTITIOUSLY, OR, AS ALLEGED HERE, GETS IN BY TRICKERY AND
FRAUD.  I THEREFORE DO NOT JOIN IN THE HOFFA OPINION. 

I AGREE WITH MR. JUSTICE CLARK THAT THE PETITION IN THAT CASE SHOULD
BE DISMISSED AS IMPROVIDENTLY GRANTED.  THE TWO LOWER COURTS FOUND THAT
PARTIN WAS NOT PLANTED BY THE FEDERAL GOVERNMENT IN HOFFA'S ENTOURAGE. 
AND I CANNOT SAY THAT THOSE FINDINGS ARE CLEARLY ERRONEOUS. 

THE TRIAL COURT FOUND:  "I WOULD FURTHER FIND THAT THE GOVERNMENT DID
NOT PLACE THIS WITNESS MR. PARTIN IN THE DEFENDANTS' MIDST OR HAVE
ANYTHING TO DO WITH PLACING HIM IN THEIR MIDST, RATHER THAT HE WAS
KNOWINGLY AND VOLUNTARILY PLACED IN THEIR MIDST BY ONE OF THE
DEFENDANTS."  THE COURT OF APPEALS HELD THAT THIS FINDING WAS SUPPORTED
BY SUBSTANTIAL EVIDENCE AND NOT CLEARLY ERRONEOUS.  349 F.2D, 20, 36. 
"A COURT OF LAW, SUCH AS THIS COURT IS, RATHER THAN A COURT FOR
CORRECTION OF ERRORS IN FACT FINDING, CANNOT UNDERTAKE TO REVIEW
CONCURRENT FINDINGS OF FACT BY TWO COURTS BELOW IN THE ABSENCE OF A
VERY OBVIOUS AND EXCEPTIONAL SHOWING OF ERROR."  GRAVER MFG. CO. V.
LINDE CO., 336 U.S. 271, 275.  AT TIMES THERE ARE QUESTIONS OF LAW THAT
MAY UNDERCUT TWO CONCURRENT FINDINGS OF FACT.  (FN12)  SEE GRAVER MFG.
CO. V. LINDE CO., SUPRA, AT 280 (CONCURRENCE); GONZALES V. UNITED
STATES, 364 U.S. 59, 66 (DISSENT); BLAU V. LEHMAN, 368 U.S. 403, 408
409.  BUT I SEE NO SUCH DIFFICULTY HERE. 

IT IS TRUE THAT IN CASES FROM STATE COURTS INVOLVING FEDERAL
CONSTITUTIONAL RIGHTS WE ARE CAREFUL TO REVIEW FINDINGS OF FACT LEST A
STATE RULE UNDERCUT THE FEDERAL CLAIM.  NORRIS V. ALABAMA, 294 U.S.
587, 590; HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652, 659; WATTS V.
INDIANA, 338 U.S. 49, 51; NAPUE V. ILLINOIS, 360 U.S. 264, 271; HAYNES
V. WASHINGTON, 373 U.S. 503, 515-516; JACOBELLIS V. OHIO, 378 U.S. 184,
187-188.  IN THOSE CASES A QUESTION OF FACT AND A QUESTION OF LAW ARE
USUALLY INTERTWINED, E.G., IS A CONFESSION "VOLUNTARY," IS A BOOK
"OBSCENE" AND THE LIKE.  HERE THE QUESTION FOR THE FACTFINDERS WAS
WHETHER PARTIN WAS "PLANTED" ON PETITIONER OR WHETHER PETITIONER WAS
THE VICTIM OF MISPLACED CONFIDENCE.  THIS IS NOT A CASE WHERE "A
CONCLUSION" IS "DRAWN FROM UNCONTROVERTED HAPPENINGS, WHEN THAT
CONCLUSION INCORPORATES STANDARDS OF CONDUCT OR CRITERIA FOR JUDGMENT
WHICH IN THEMSELVES ARE DECISIVE OF CONSTITUTIONAL RIGHTS."  WATTS V.
INDIANA, SUPRA, AT 51.  I WOULD APPLY THE SAME LEGAL CRITERIA AS THE
CHIEF JUSTICE, ONCE THE FACTS ARE FOUND.  IF WE WERE THE ORIGINAL
FACTFINDERS THE QUESTION WOULD NOT BE AN OPEN-AND-SHUT ONE FOR ME.  BUT
THE CONCURRENT FINDINGS BY THE LOWER COURTS HAVE SUPPORT IN THE
EVIDENCE AND I WOULD LET THEM STAND. 

ONCE ELECTRONIC SURVEILLANCE, APPROVED IN LOPEZ V. UNITED STATES, 373
U.S. 427, IS ADDED TO THE TECHNIQUES OF SNOOPING WHICH THIS
SOPHISTICATED AGE HAS DEVELOPED, WE FACE THE STARK REALITY THAT THE
WALLS OF PRIVACY HAVE BROKEN DOWN AND ALL THE TOOLS OF THE POLICE STATE
ARE HANDED OVER TO OUR BUREAUCRACY ON A CONSTITUTIONAL PLATTER.  THE
COURT TODAY PAYS LIP SERVICE TO THIS DANGER IN OSBORN V. UNITED STATES,
BUT GOES ON TO APPROVE WHAT WAS DONE IN THE CASE FOR ANOTHER REASON. 
IN OSBORN, USE OF THE ELECTRONIC DEVICE TO RECORD THE FATEFUL
CONVERSATION WAS APPROVED BY THE TWO JUDGES OF THE DISTRICT COURT IN
ADVANCE OF ITS USE.  (FN13)  BUT WHAT THE COURT OVERLOOKS IS THAT THE
FOURTH AMENDMENT DOES NOT AUTHORIZE WARRANTS TO ISSUE FOR ANY SEARCH
EVEN ON A SHOWING OF PROBABLE CAUSE.  THE FIRST CLAUSE OF THE FOURTH
AMENDMENT READS: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED  ...  ." 

AS HELD IN BOYD V. UNITED STATES, 116 U.S. 616, A VALIDLY EXECUTED
WARRANT DOES NOT NECESSARILY MAKE LEGAL THE ENSUING SEARCH AND
SEIZURE. 

"IT IS NOT THE BREAKING OF HIS DOORS, AND THE RUMMAGING OF HIS
DRAWERS, THAT CONSTITUTES THE ESSENCE OF THE OFFENCE; BUT IT IS THE
INVASION OF HIS INDEFEASIBLE RIGHT OF PERSONAL SECURITY, PERSONAL
LIBERTY AND PRIVATE PROPERTY, WHERE THAT RIGHT HAS NEVER BEEN FORFEITED
BY HIS CONVICTION OF SOME PUBLIC OFFENCE, - IT IS THE INVASION OF THIS
SACRED RIGHT WHICH UNDERLIES AND CONSTITUTES THE ESSENCE OF LORD
CAMDEN'S JUDGMENT.  ENTICK V. CARRINGTON, 19 HOW.  ST. TR. 1029. 
BREAKING INTO A HOUSE AND OPENING BOXES AND DRAWERS ARE CIRCUMSTANCES
OF AGGRAVATION; BUT ANY FORCIBLE AND COMPULSORY EXTORTION OF A MAN'S
OWN TESTIMONY OR OF HIS PRIVATE PAPERS TO BE USED AS EVIDENCE TO
CONVICT HIM OF CRIME OR TO FORFEIT HIS GOODS, IS WITHIN THE
CONDEMNATION OF THAT JUDGMENT.  IN THIS REGARD THE FOURTH AND FIFTH
AMENDMENTS RUN ALMOST INTO EACH OTHER."  ID., AT 630. 

IT WAS ACCORDINGLY HELD IN GOULED V. UNITED STATES, SUPRA, AT 309,
THAT A SEARCH WARRANT "MAY NOT BE USED AS A MEANS OF GAINING ACCESS TO
A MAN'S HOUSE OR OFFICE AND PAPERS SOLELY FOR THE PURPOSE OF MAKING
SEARCH TO SECURE EVIDENCE TO BE USED AGAINST HIM IN A CRIMINAL OR PENAL
PROCEEDING" BUT ONLY TO OBTAIN CONTRABAND ARTICLES OR THE TOOLS WITH
WHICH A CRIME HAD BEEN COMMITTED.  THAT DECISION WAS BY A UNANIMOUS
COURT IN 1921, THE OPINION BEING WRITTEN BY MR. JUSTICE CLARKE.  THAT
VIEW HAS BEEN FOLLOWED (UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 465;
HARRIS V. UNITED STATES, 331 U.S. 145, 154; UNITED STATES V.
RABINOWITZ, 339 U.S. 56, 64) WITH THE RESULT THAT TODAY A "SEARCH" THAT
RESPECTS ALL THE PROCEDURAL PROPRIETIES OF THE FOURTH AMENDMENT IS
NONETHELESS UNCONSTITUTIONAL IF IT IS A "SEARCH" FOR TESTIMONIAL
EVIDENCE. 

AS ALREADY INDICATED, BOYD V. UNITED STATES, SUPRA, MADE CLEAR THAT
IF THE BARRIERS ERECTED BY THE FOURTH AMENDMENT WERE NOT STRICTLY
HONORED, SERIOUS INVASIONS OF THE FIFTH AMENDMENT MIGHT RESULT. 
ENCOURAGING A PERSON TO TALK INTO A CONCEALED "BUG" MAY NOT BE
COMPULSION WITHIN THE MEANING OF THE FIFTH AMENDMENT.  BUT ALLOWING THE
TRANSCRIPT TO BE USED AS EVIDENCE AGAINST THE ACCUSED IS USING THE
FORCE AND POWER OF THE LAW TO MAKE A MAN TALK AGAINST HIS WILL, JUST AS
IS THE USE OF A WARRANT TO OBTAIN A LETTER FROM THE ACCUSED'S HOME AND
ALLOWING IT AS EVIDENCE.  "ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES
GET THEIR FIRST FOOTING  ...  BY SILENT APPROACHES AND SLIGHT
DEVIATIONS FROM LEGAL MODES OF PROCEDURE."  116 U.S., AT 635.  THE FACT
THAT THE OFFICER COULD HAVE TESTIFIED TO HIS TALK WITH OSBORN IS NO
ANSWER.  THEN AN ISSUE OF CREDIBILITY BETWEEN TWO WITNESSES WOULD BE
RAISED.  BUT THE TAPE RECORDING CARRYING THE TWO VOICES IS TESTIMONY
INTRODUCED BY COMPULSION AND, SUBJECT TO THE DEFENSE THAT THE TAPE WAS
"RIGGED,"  (FN14)  IS WELL NIGH CONCLUSIVE PROOF. 

I WOULD ADHERE TO GOULED AND BAR THE USE OF ALL TESTIMONIAL EVIDENCE
OBTAINED BY WIRETAPPING OR BY AN ELECTRONIC DEVICE.  THE DANGERS POSED
BY WIRETAPPING AND ELECTRONIC SURVEILLANCE STRIKE AT THE VERY HEART OF
THE DEMOCRATIC PHILOSOPHY.  A FREE SOCIETY IS BASED ON THE PREMISE THAT
THERE ARE LARGE ZONES OF PRIVACY INTO WHICH THE GOVERNMENT MAY NOT
INTRUDE EXCEPT IN UNUSUAL CIRCUMSTANCES.  AS WE NOTED IN GRISWOLD V.
CONNECTICUT, SUPRA, VARIOUS PROVISIONS OF THE BILL OF RIGHTS CONTAIN
THIS AURA OF PRIVACY, INCLUDING THE FIRST, THIRD, FOURTH, FIFTH, AND
THE NINTH AMENDMENTS.  (FN15)  AS RESPECTS THE FOURTH, THIS PREMISE IS
EXPRESSED IN THE PROVISION THAT THE GOVERNMENT CAN INTRUDE UPON A
CITIZEN'S PRIVACY ONLY PURSUANT TO A SEARCH WARRANT, BASED UPON
PROBABLE CAUSE, AND SPECIFICALLY DESCRIBING THE OBJECTS SOUGHT.  AND,
THE "OBJECTS" OF THE SEARCH MUST BE EITHER INSTRUMENTALITIES OR
PROCEEDS OF THE CRIME.  BUT WIRETAPPING AND ELECTRONIC "BUGGING"
INVARIABLY INVOLVE A SEARCH FOR MERE EVIDENCE.  THE OBJECTS TO BE
"SEIZED" CANNOT BE PARTICULARLY DESCRIBED; ALL THE SUSPECT'S
CONVERSATIONS ARE INTERCEPTED.  THE SEARCH IS NOT CONFINED TO A
PARTICULAR TIME, BUT MAY GO ON FOR WEEKS OR MONTHS.  THE CITIZEN IS
COMPLETELY UNAWARE OF THE INVASION OF HIS PRIVACY.  THE INVASION OF
PRIVACY IS NOT LIMITED TO HIM, BUT EXTENDS TO HIS FRIENDS AND
ACQUAINTANCES - TO ANYONE WHO HAPPENS TO TALK ON THE TELEPHONE WITH THE
SUSPECT OR WHO HAPPENS TO COME WITHIN THE RANGE OF THE ELECTRONIC
DEVICE.  THEIR WORDS ARE ALSO INTERCEPTED; THEIR PRIVACY IS ALSO
SHATTERED.  SUCH DEVICES LAY DOWN A DRAGNET WHICH INDISCRIMINATELY
SWEEPS IN ALL CONVERSATIONS WITHIN ITS SCOPE, WITHOUT REGARD TO THE
NATURE OF THE CONVERSATIONS, OR THE PARTICIPANTS.  A WARRANT
AUTHORIZING SUCH DEVICES IS NO DIFFERENT FROM THE GENERAL WARRANTS THE
FOURTH AMENDMENT WAS INTENDED TO PROHIBIT. 

SUCH PRACTICES CAN ONLY HAVE A DAMAGING EFFECT ON OUR SOCIETY.  ONCE
SANCTIONED, THERE IS EVERY INDICATION THAT THEIR USE WILL
INDISCRIMINATELY SPREAD.  THE TIME MAY COME WHEN NO ONE CAN BE SURE
WHETHER HIS WORDS ARE BEING RECORDED FOR USE AT SOME FUTURE TIME; WHEN
EVERYONE WILL FEAR THAT HIS MOST SECRET THOUGHTS ARE NO LONGER HIS OWN,
BUT BELONG TO THE GOVERNMENT; WHEN THE MOST CONFIDENTIAL AND INTIMATE
CONVERSATIONS ARE ALWAYS OPEN TO EAGER, PRYING EARS.  WHEN THAT TIME
COMES, PRIVACY, AND WITH IT LIBERTY, WILL BE GONE.  IF A MAN'S PRIVACY
CAN BE INVADED AT WILL, WHO CAN SAY HE IS FREE?  IF HIS EVERY WORD IS
TAKEN DOWN AND EVALUATED, OR IF HE IS AFRAID EVERY WORD MAY BE, WHO CAN
SAY HE ENJOYS FREEDOM OF SPEECH?  IF HIS EVERY ASSOCIATION IS KNOWN AND
RECORDED, IF THE CONVERSATIONS WITH HIS ASSOCIATES ARE PURLOINED, WHO
CAN SAY HE ENJOYS FREEDOM OF ASSOCIATION?  WHEN SUCH CONDITIONS OBTAIN,
OUR CITIZENS WILL BE AFRAID TO UTTER ANY BUT THE SAFEST AND MOST
ORTHODOX THOUGHTS; AFRAID TO ASSOCIATE WITH ANY BUT THE MOST ACCEPTABLE
PEOPLE.  FREEDOM AS THE CONSTITUTION ENVISAGES IT WILL HAVE VANISHED. 

I WOULD REVERSE LEWIS AND OSBORN AND DISMISS HOFFA. 

FN1  SEE GENERALLY HEARINGS BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE
PRACTICE AND PROCEDURE OF THE SENATE COMMITTEE ON THE JUDICIARY,
INVASIONS OF PRIVACY, 89TH CONG., 1ST SESS. (1965). 

FN2  SEE GENERALLY HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON GOVERNMENT OPERATIONS, SPECIAL INQUIRY ON INVASION OF
PRIVACY, 89TH CONG., 1ST SESS. (1965); HEARINGS BEFORE THE SUBCOMMITTEE
ON CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY,
PSYCHOLOGICAL TESTS AND CONSTITUTIONAL RIGHTS, 89TH CONG., 1ST SESS.
(1965). 

FN3  SEE, E.G., HEARINGS BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE
PRACTICE AND PROCEDURE, SUPRA, N. 1, PT. 2, AT 389. 

FN4  ID., AT 783. 

FN5  ID., PT. 3, AT 1356. 

FN6  ID., AT 1379, 1415. 

FN7  SEE GENERALLY HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON GOVERNMENT OPERATIONS, USE OF POLYGRAPHS AS "LIE
DETECTORS" BY THE FEDERAL GOVERNMENT, 88TH CONG., 2D SESS. (1964). 

FN8  SEE GENERALLY HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON GOVERNMENT OPERATIONS, THE COMPUTER AND INVASION OF
PRIVACY, 89TH CONG., 2D SESS., JULY 26, 27, AND 28, 1966. 

FN9  WE KNOW FROM THE HEARINGS BEFORE SENATE AND HOUSE COMMITTEES
THAT THE GOVERNMENT IS USING SUCH TACTICS ON A GARGANTUAN SCALE AND HAS
BECOME CALLOUS OF THE RIGHTS OF THE CITIZENS. 

THE ATTITUDE THAT THOSE INVESTIGATED FOR CRIME HAVE FEWER
CONSTITUTIONAL RIGHTS THAN OTHERS HAS CURRENCY: 

"SENATOR LONG.  I AM CURIOUS AS TO WHETHER YOU HAVE A DIFFERENT SET
OF PRINCIPLES, DIFFERENT STANDARDS, A DIFFERENT VIEW AS TO THE
CONSTITUTIONAL RIGHTS AND PRIVILEGES WHERE THE OCD IS INVOLVED AND
WHERE THE ORDINARY TAXPAYER IS INVOLVED? 

"MR. WILSON.  IT IS PRETTY MUCH A MATTER OF FIGHT FIRE WITH FIRE. 
YES, I THINK TO A DEGREE THERE IS A DIFFERENT FEELING WHEN YOU ARE
WORKING ON ORGANIZED CRIME. 

"SENATOR LONG.  IN OTHER WORDS, YOU SAY ONE HAS CONSTITUTIONAL RIGHTS
AND THE OTHER ONE DOES NOT? 

"MR. WILSON.  NO, WE DON'T SAY THAT. 

"SENATOR LONG.  YOU ACT LIKE IT, THOUGH, DON'T YOU? 

"MR. WILSON.  I AM AFRAID YOU ARE RIGHT. 

HEARINGS BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND
PROCEDURE OF THE SENATE COMMITTEE ON THE JUDICIARY, INVASIONS OF
PRIVACY, SUPRA, N. 1, PT. 3, AT 1477 (1965). 

FN10  WE ARE TOLD THAT RAIDS BY WELFARE INSPECTORS TO SEE IF
RECIPIENTS OF WELFARE HAVE VIOLATED ELIGIBILITY REQUIREMENTS FLOUT THE
FOURTH AMENDMENT.  SEE REICH, MIDNIGHT WELFARE SEARCHES AND THE SOCIAL
SECURITY ACT, 72 YALE L.J. 1347 (1963). 

FN11  IN LEWIS, A FEDERAL NARCOTICS AGENT, POSING AS AN OPERATOR OF A
BAR AND GRILL, WENT TO PETITIONER'S HOME FOR THE PURPOSE OF OBTAINING
NARCOTICS FROM HIM.  HE HAD NO SEARCH WARRANT, THOUGH THERE WERE
GROUNDS FOR OBTAINING ONE.  AGENT CASS TESTIFIED THAT HE HAD BEEN
ASSIGNED TO INVESTIGATE NARCOTICS ACTIVITIES IN THE BOSTON AREA IN JUNE
1963.  HE BECAME ACQUAINTED WITH ONE GOLD, A FRIEND OF PETITIONER,*
FROM WHOM HE LEARNED THAT ONE MIGHT OBTAIN MARIHUANA FROM THE
PETITIONER.  IT WAS THEN THAT AGENT CASS, REPRESENTING HIMSELF AS
"JIMMY THE POLLACK," TELEPHONED THE PETITIONER STATING "A FRIEND OF
OURS TOLD ME YOU HAVE SOME PRETTY GOOD GRASS (MARIHUANA)."  PETITIONER
REPLIED, "YES, HE TOLD ME ABOUT YOU, POLLACK  ...  I BELIEVE, JIMMY, I
CAN TAKE CARE OF YOU."  WHEN CASS TOLD HIM THAT HE NEEDED FIVE BAGS,
PETITIONER GAVE HIM HIS ADDRESS AND DIRECTIONS, AND TOLD HIM TO COME
RIGHT OVER.  ON THE BASIS OF OUR PRIOR DECISIONS THIS INFORMATION WOULD
CERTAINLY HAVE MADE A SUFFICIENT SHOWING OF PROBABLE CAUSE TO JUSTIFY
THE ISSUANCE OF A WARRANT.  YET NONE WAS SOUGHT OR OBTAINED.    *"WHEN
WE APPROACHED THE NARCOTIC TRAFFICKER TO PURCHASE DRUGS FOR EVIDENCE,
OUR CREDENTIALS NEED TO BE GOOD - ALMOST IMPECCABLE.  USUALLY
CONSIDERED AS GOOD CREDENTIALS IS AN INTRODUCTION BY AN ACCEPTED
CRIMINAL WHO VOUCHES FOR OUR AGENT.  IN THIS CATEGORY THE INFORMER CAN
SUPPLY THE ENTREE WHICH OTHERWISE MIGHT NEVER BE ATTAINED.  WORKING
UNDER COVER, WE HAVE SOMETIMES BEEN EMBARRASSED BY THE INFORMER'S
FULSOME DESCRIPTION OF OUR ROGUE QUALIFICATIONS."  HARNEY & CROSS, THE
INFORMER IN LAW ENFORCEMENT 18-19 (1960).  SEE PRITT, SPIES AND
INFORMERS IN THE WITNESS-BOX (1958). 

FN12  COMPARE THE CASES FROM STATE COURTS DEALING WITH THE QUESTION
WHETHER A CONFESSION HAS BEEN COERCED CONTRARY TO THE REQUIREMENTS OF
THE FOURTEENTH AMENDMENT, WHERE THE COURT WEIGHS ONLY THE UNDISPUTED
FACTS.  ASHCRAFT V. TENNESSEE, 322 U.S. 143, 153, 154; MALINSKI V. NEW
YORK, 324 U.S. 401, 404; THOMAS V. ARIZONA, 356 U.S. 390, 402-403;
ROGERS V. RICHMOND, 365 U.S. 534, 546. 

FN13  THE RECENT REGULATION OF THE FEDERAL COMMUNICATIONS COMMISSION
THAT BANS THE USE OF MONITORING DEVICES "UNLESS SUCH USE IS AUTHORIZED
BY ALL OF THE PARTIES ENGAGING IN THE CONVERSATION" (31 FED. REG. 3400)
IS OF COURSE APPLICABLE ONLY WHEN AIR WAVES ARE USED; AND IT DOES NOT
APPLY TO "OPERATIONS OF ANY LAW ENFORCEMENT OFFICERS CONDUCTED UNDER
LAWFUL AUTHORITY."  IBID. IF SILVERMAN V. UNITED STATES, 365 U.S. 505,
IS READ IN THE CONTEXT OF OUR PRIOR DECISIONS, THEN THE MAJORITY VIEW
IS THAT THE USE OF AN ELECTRONIC DEVICE TO RECORD A CONVERSATION IN THE
HOME IS NOT A "SEARCH" WITHIN THE MEANING OF THE FOURTH AMENDMENT,
UNLESS THE DEVICE ITSELF PENETRATES THE WALL OF THE HOME.  SECTION 605
OF THE FEDERAL COMMUNICATIONS ACT, 48 STAT. 1103, 47 U.S.C. SEC 605,
THAT GOVERNS THE INTERCEPTION OF COMMUNICATIONS MADE "BY WIRE OR RADIO"
REACHES ONLY THE PROBLEM OF THE PERSONS TO WHOM THE MESSAGE MAY BE
DISCLOSED BY FEDERAL AGENTS AS WELL AS OTHERS (NARDONE V. UNITED
STATES, 302 U.S. 379, 308 U.S. 338), NOT THE PRACTICE ITSELF. 

THOUGH SEC 605 PROTECTS COMMUNICATIONS "BY WIRE OR RADIO," THE COURT
IN ON LEE V. UNITED STATES, 343 U.S. 747, 754, HELD THAT SEC 605 WAS
NOT VIOLATED WHEN A NARCOTICS AGENT WEARING AN ELECTRONIC DEVICE
ENTERED THE COMBINATION HOME AND OFFICE OF A SUSPECT AND ENGAGED HIM IN
CONVERSATION WHICH WAS BROADCAST TO ANOTHER AGENT STATIONED OUTSIDE. 
"PETITIONER (THE SUSPECT) HAD NO WIRES AND NO WIRELESS.  THERE WAS NO
INTERFERENCE WITH ANY COMMUNICATIONS FACILITY WHICH HE POSSESSED OR WAS
ENTITLED TO USE.  HE WAS NOT SENDING MESSAGES TO ANYBODY OR USING A
SYSTEM OF COMMUNICATIONS WITHIN THE ACT." 

IF THAT DECISION STANDS, THEN SEC 605 EXTENDS NO PROTECTION TO
MESSAGES INTERCEPTED BY THE USE OF ELECTRONIC DEVICES BANNED BY THE NEW
1966 FEDERAL COMMUNICATIONS COMMISSION RULE. 

FN14  RIGGING IS EASY FOR THE EXPERT.  SEE DASH, THE EAVESDROPPERS
367-371 (1959): "  ...  THE TAPE TO BE EDITED IS PLAYED ON A MACHINE
WHICH CAN BE INSTANTANEOUSLY STOPPED AT WILL.  WHEN A WORD OR PASSAGE
OCCURS WHICH IS TO BE DELETED, THE MACHINE IS STOPPED, THE PIECE OF
TAPE CONTAINING THE UNWANTED SECTION IS CUT OUT, AND THE TWO LOOSE ENDS
ARE SPLICED.  THE WORDS CUT OUT CAN BE INSERTED IN WHOLE OR IN PART
SOMEWHERE ELSE.  SENTENCES CAN BE REARRANGED.  NEW WORDS CAN BE DUBBED
IN BY AN IMPERSONATOR OR MADE UP OF SOUNDS TAKEN FROM OTHER WORDS." 
ID., 369. 

"  ...  A SKILFULLY EDITED TAPE CANNOT BE DETECTED WITH EQUIPMENT
READILY AVAILABLE."  ID., 371. 

FN15  "THE NINTH AMENDMENT SHOULD BE PERMITTED TO OCCUPY ITS RIGHTFUL
PLACE IN THE CONSTITUTION AS A REMINDER AT THE END OF THE BILL OF
RIGHTS THAT THERE EXIST RIGHTS OTHER THAN THOSE SET OUT IN THE FIRST
EIGHT AMENDMENTS.  IT WAS INTENDED TO PRESERVE THE UNDERLYING THEORY OF
THE CONSTITUTIONAL CONVENTION THAT INDIVIDUAL RIGHTS EXIST
INDEPENDENTLY OF GOVERNMENT, AND TO NEGATE THE FEDERALIST ARGUMENT THAT
THE ENUMERATION OF CERTAIN RIGHTS WOULD IMPLY THE FORFEITURE OF ALL
OTHERS.  THE NINTH IS SIMPLY A RULE OF CONSTRUCTION, APPLICABLE TO THE
ENTIRE CONSTITUTION."  COMMENT, THE UNCERTAIN RENAISSANCE OF THE NINTH
AMENDMENT, 33 U. CHI.  L. REV. 814, 835 (1966). 
..END :









DEPT. OF EMPLOYMENT V. U.S. 385 U.S. 355 


NO. 78.  ARGUED NOVEMBER 15, 1966 - DECIDED DECEMBER 12, 1966.  -
AFFIRMED. 


APPELLEE AMERICAN NATIONAL RED CROSS, CLAIMING IMMUNITY AS A "FEDERAL
INSTRUMENTALITY" FROM THE COLORADO UNEMPLOYMENT COMPENSATION TAX,
TOGETHER WITH THE UNITED STATES, BROUGHT THIS SUIT IN A THREE-JUDGE
FEDERAL DISTRICT COURT TO ENJOIN ENFORCEMENT AS TO IT OF THE TAX
STATUTE AND FOR A REFUND.  FROM THAT COURT'S RULING IN FAVOR OF
APPELLEES, THIS DIRECT APPEAL WAS TAKEN.  HELD: 

1.  THE THREE-JUDGE COURT HAD JURISDICTION TO ENJOIN A STATE TAX UPON
AN ORGANIZATION CLAIMING IMMUNITY AS A FEDERAL INSTRUMENTALITY.  QUERY
V. UNITED STATES, 316 U.S. 486, FOLLOWED.  P. 357. 

2.  THE TAX INJUNCTION ACT (28 U.S.C. SEC 1341), PROHIBITING DISTRICT
COURTS FROM ENJOINING THE COLLECTION OF STATE TAXES WHERE A "PLAIN,
SPEEDY AND EFFICIENT" STATE-COURT REMEDY IS AVAILABLE, DOES NOT
RESTRICT A SUIT BY THE UNITED STATES TO ENJOIN THE UNCONSTITUTIONAL
IMPOSITION OF STATE TAXES; NOR DOES THE ELEVENTH AMENDMENT BAR THE
ACTION.  PP. 357-358. 

3.  THE RED CROSS IS CLEARLY AN INSTRUMENTALITY OF THE UNITED STATES
FOR PURPOSES OF IMMUNITY FROM STATE TAXATION ON ITS OPERATIONS AND
CONGRESS HAS NOT WAIVED ITS IMMUNITY.  PP. 358-361. 

DEPARTMENT OF EMPLOYMENT ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

COLORADO IS ONE OF THREE STATES  (FN1)  WHOSE EMPLOYMENT SECURITY ACT
IMPOSES AN UNEMPLOYMENT COMPENSATION TAX UPON CHARITABLE INSTITUTIONS,
THE TAX BEING MEASURED BY THE AMOUNT OF WAGES PAID TO THE INSTITUTION'S
EMPLOYEES.  COLO. REV. STAT. ANN. SEC 82-6-1.  WHEN THE STATE'S
DEPARTMENT OF EMPLOYMENT SOUGHT TO ENFORCE THE TAX UPON WAGES PAID
COLORADO-BASED EMPLOYEES OF THE AMERICAN NATIONAL RED CROSS
(HEREINAFTER REFERRED TO AS RED CROSS), THE RED CROSS OBJECTED THAT AS
A "FEDERAL INSTRUMENTALITY" IT WAS IMMUNE FROM SUCH TAXATION.  SEE
MCCULLOCH V. MARYLAND, 4 WHEAT.  316 (1819).  TAX PAYMENTS AGGREGATING
MORE THAN $10,000 WERE MADE UNDER PROTEST, APPLICATIONS FOR REFUND
ACCOMPANYING EACH PAYMENT.  THE DEPARTMENT OF EMPLOYMENT DENIED EACH
SUCH APPLICATION.  THEREUPON THE RED CROSS, ALONG WITH THE UNITED
STATES AS CO-PLAINTIFF, INVOKED THE JURISDICTION OF A THREE-JUDGE
FEDERAL DISTRICT COURT TO ENJOIN ENFORCEMENT AGAINST IT OF THE COLORADO
EMPLOYMENT SECURITY ACT ON THE GROUND THAT AS APPLIED TO IT, A FEDERAL
INSTRUMENTALITY, THE STATUTE VIOLATED THE FEDERAL CONSTITUTION.  SEE 28
U.S.C. SEC 2281.  (FN2)  THE DEPARTMENT OF EMPLOYMENT RESPONDED THAT
THE RED CROSS WAS NOT A FEDERAL INSTRUMENTALITY, THAT ANY IMMUNITY IT
MIGHT HAVE HAD BEEN WAIVED BY CONGRESS IN THE 1960 AMENDMENTS TO THE
FEDERAL UNEMPLOYMENT TAX ACT (26 U.S.C. SEC 3301 ET SEQ.), AND THAT IN
ANY EVENT THE RED CROSS HAD FAILED TO EXHAUST AVAILABLE ADMINISTRATIVE
AND STATE JUDICIAL REMEDIES.  THE THREE-JUDGE FEDERAL DISTRICT COURT
RULED IN FAVOR OF THE RED CROSS AND THE UNITED STATES ON EACH OF THESE
ISSUES, ORDERED A REFUND OF TAXES ALREADY PAID, AND ENJOINED
ENFORCEMENT OF THE TAX STATUTE AGAINST THE RED CROSS.  PURSUANT TO 28
U.S.C. SEC 1253,  (FN3)  THE DEPARTMENT OF EMPLOYMENT AND ITS EXECUTIVE
DIRECTOR SOUGHT DIRECT REVIEW HERE.  IN SETTING THE CASE FOR ARGUMENT,
WE POSTPONED CONSIDERATION OF QUESTIONS PERTAINING TO OUR JURISDICTION
AND THAT OF THE THREE-JUDGE COURT.  384 U.S. 949 (1966). 

WE ARE PERSUADED THAT THERE EXIST NO JURISDICTIONAL BARRIERS TO OUR
DISPOSITION OF THIS APPEAL ON THE MERITS.  ANY CHALLENGE TO THE
APPLICABILITY OF THE THREE-JUDGE COURT PROVISION, 28 U.S.C. SEC 2281,
IS FORECLOSED BY THIS COURT'S DECISION IN QUERY V. UNITED STATES, 316
U.S. 486 (1942), WHERE THE COURT HELD THAT THREE JUDGES WERE REQUIRED
TO ENTERTAIN A SUIT TO ENJOIN A STATE TAX STATUTE SOUGHT TO BE ENFORCED
AGAINST AN ARMY POST EXCHANGE WHICH ASSERTED ITS IMMUNITY AS A FEDERAL
INSTRUMENTALITY, (FN4) AND WE DO NOT CONSIDER THAT OUR LATER DECISION
IN SWIFT & CO. V. WICKHAM, 382 U.S. 111 (1965), REQUIRES A DIFFERENT
CONCLUSION.  NOR IS THERE COMPELLING FORCE IN THE ARGUMENT, ADVANCED BY
APPELLANTS, THAT THE TAX INJUNCTION ACT (28 U.S.C. SEC 1341)  (FN5)
REQUIRES APPELLEES FIRST TO EXHAUST THEIR STATE REMEDIES, WHICH ARE
ALLEGED BY APPELLANTS TO BE "PLAIN, SPEEDY AND EFFICIENT."  WE NEED NOT
DECIDE WHETHER OMISSION TO PROVIDE INTEREST ON A SUCCESSFUL REFUND
APPLICATION RENDERS THE STATE REMEDY HERE AN INADEQUATE ONE WITHIN THE
MEANING OF SEC 1341.  FOR WE CONCLUDE, IN ACCORD WITH AN UNBROKEN LINE
OF AUTHORITY  (FN6)  AND CONVINCING EVIDENCE OF LEGISLATIVE PURPOSE,
(FN7)  THAT SEC 1341 DOES NOT ACT AS A RESTRICTION UPON SUITS BY THE
UNITED STATES TO PROTECT ITSELF AND ITS INSTRUMENTALITIES FROM
UNCONSTITUTIONAL STATE EXACTIONS.  WITH RESPECT TO APPELLANTS'
CONTENTION THAT THE STATE OF COLORADO HAS NOT CONSENTED TO SUIT IN A
FEDERAL FORUM EVEN WHERE THE PLAINTIFF IS THE UNITED STATES, SEE MONACO
V. MISSISSIPPI, 292 U.S. 313 (1934), AND EX PARTE YOUNG, 209 U.S. 123
(1908). 

ON THE MERITS, WE HOLD THAT THE RED CROSS IS AN INSTRUMENTALITY OF
THE UNITED STATES FOR PURPOSES OF IMMUNITY FROM STATE TAXATION LEVIED
ON ITS OPERATIONS, AND THAT THIS IMMUNITY HAS NOT BEEN WAIVED BY
CONGRESSIONAL ENACTMENT.  ALTHOUGH THERE IS NO SIMPLE TEST FOR
ASCERTAINING WHETHER AN INSTITUTION IS SO CLOSELY RELATED TO
GOVERNMENTAL ACTIVITY AS TO BECOME A TAX-IMMUNE INSTRUMENTALITY, THE
RED CROSS IS CLEARLY SUCH AN INSTRUMENTALITY.  SEE GENERALLY, STURGES,
THE LEGAL STATUS OF THE RED CROSS, 56 MICH. L. REV. 1 (1957).  CONGRESS
CHARTERED THE PRESENT RED CROSS IN 1905, SUBJECTING IT TO GOVERNMENTAL
SUPERVISION AND TO A REGULAR FINANCIAL AUDIT BY THE DEFENSE, THEN WAR,
DEPARTMENT.  33 STAT. 599, AS AMENDED, 36 U.S.C. SEC 1 ET SEQ. ITS
PRINCIPAL OFFICER IS APPOINTED BY THE PRESIDENT, WHO ALSO APPOINTS
SEVEN (ALL GOVERNMENT OFFICERS) OF THE REMAINING 49 GOVERNORS.  33
STAT. 601, AS AMENDED, 36 U.S.C. SEC 5.  BY STATUTE AND EXECUTIVE ORDER
THERE DEVOLVED UPON THE RED CROSS THE RIGHT AND THE OBLIGATION TO MEET
THIS NATION'S COMMITMENTS UNDER VARIOUS GENEVA CONVENTIONS,  (FN8)  TO
PERFORM A WIDE VARIETY OF FUNCTIONS INDISPENSABLE TO THE WORKINGS OF
OUR ARMED FORCES AROUND THE GLOBE,  (FN9)  AND TO ASSIST THE FEDERAL
GOVERNMENT IN PROVIDING DISASTER ASSISTANCE TO THE STATES IN TIME OF
NEED.  (FN10)  ALTHOUGH ITS OPERATIONS ARE FINANCED PRIMARILY FROM
VOLUNTARY PRIVATE CONTRIBUTIONS, THE RED CROSS DOES RECEIVE SUBSTANTIAL
MATERIAL ASSISTANCE FROM THE FEDERAL GOVERNMENT.  (FN11)  AND TIME AND
TIME AGAIN, BOTH THE PRESIDENT AND THE CONGRESS HAVE RECOGNIZED AND
ACTED IN RELIANCE UPON THE RED CROSS' STATUS VIRTUALLY AS AN ARM OF THE
GOVERNMENT.  (FN12)  IN THOSE RESPECTS IN WHICH THE RED CROSS DIFFERS
FROM THE USUAL GOVERNMENT AGENCY - E.G., IN THAT ITS EMPLOYEES ARE NOT
EMPLOYEES OF THE UNITED STATES, AND THAT GOVERNMENT OFFICIALS DO NOT
DIRECT ITS EVERYDAY AFFAIRS - THE RED CROSS IS LIKE OTHER INSTITUTIONS
E.G., NATIONAL BANKS - WHOSE STATUS AS TAX-IMMUNE INSTRUMENTALITIES OF
THE UNITED STATES IS BEYOND DISPUTE. 

NOR DID CONGRESS, IN THE COURSE OF AMENDING THE FEDERAL UNEMPLOYMENT
COMPENSATION TAX STATUTE IN 1960, STRIP AWAY ANY OF THIS IMMUNITY. 
CERTAINLY THERE WAS NO INTENT TO DO SO.  INDEED, IN DEBATE ON THE FLOOR
OF THE HOUSE, CHAIRMAN MILLS AND CONGRESSMAN IKARD OF THE WAYS AND
MEANS COMMITTEE EXPRESSED THEIR VIEW, WHICH WAS NOT CONTROVERTED, THAT
THE RED CROSS' IMMUNITY FROM STATE AND FEDERAL UNEMPLOYMENT
COMPENSATION TAXES WOULD SURVIVE THE AMENDMENTS.  106 CONG. REC. 13827
(1960).  AND THE HOUSE COMMITTEE REPORT STATED THAT NO NONGOVERNMENT
OWNED INSTRUMENTALITY WHICH ENJOYED IMMUNITY FROM THE FEDERAL TAX PRIOR
TO 1960 - THE RED CROSS HAD SUCH AN EXEMPTION - WAS TO LOSE ITS STATE
TAX IMMUNITY.  H.R.  REP. NO. 1799, 86TH CONG., 2D SESS., PP. 55-56,
125 (1960).  FINALLY, THE PRESENT STATUTORY SCHEME DOES NOT DEPRIVE THE
RED CROSS OF IMMUNITY.  THAT THE RED CROSS ENJOYED IMMUNITY PRIOR TO
THE 1960 AMENDMENTS SEEMS CLEAR, AND WAS AT THE TIME CONCEDED BY THE
STATE OF COLORADO.  (FN13)  UNDER THE PRE-EXISTING SCHEME, SEC. 3305(B)
OF TITLE 26 EXEMPTED FROM STATE TAXATION ANY FEDERAL INSTRUMENTALITY
EXEMPT FROM THE FEDERAL UNEMPLOYMENT COMPENSATION TAX IMPOSED BY SEC.
3301.  THE RED CROSS WAS SO EXEMPT AS THE RESULT OF SECS. 3306(C)(6)(B)
AND 3306(C)(8), WHICH REFERRED TO "SERVICE PERFORMED IN THE EMPLOY OF A
CHARITABLE ORGANIZATION."  AS AMENDED IN 1960, SEC. 3305(B) CONTINUES
THE STATE-TAX IMMUNITY FOR ANY "INSTRUMENTALITY TO WHICH SECTION
3306(C)(6) APPLIES."  AND THE LATTER SECTION AS AMENDED INCLUDES
EMPLOYMENT "EXEMPT FROM THE TAX IMPOSED BY SECTION 3301 BY VIRTUE OF
ANY PROVISION OF LAW WHICH SPECIFICALLY REFERS TO SUCH SECTION ...  IN
GRANTING SUCH EXEMPTION."  26 U.S.C. SEC 3306(C)(6)(B).  ALTHOUGH SEC.
3306(C)(8), WHICH EXEMPTS FROM THE FEDERAL TAX "SERVICE PERFORMED IN
THE EMPLOY OF A CHARITABLE INSTITUTION," DOES NOT CONTAIN AN EXPLICIT
CITATION TO SEC 3301, ITS SOLE FUNCTION IS TO EXEMPT CERTAIN EMPLOYMENT
FROM THE REACH OF THAT SECTION.  WE HOLD THAT FEDERAL INSTRUMENTALITIES
LIKE THE RED CROSS, EXEMPTED FROM THE FEDERAL TAX BY VIRTUE OF SEC.
3306(C)(8), ARE LIKEWISE EXEMPT FROM STATE TAXATION UNDER SEC.
3306(C)(6)(B). 

ACCORDINGLY, THE JUDGMENT APPEALED FROM IS AFFIRMED. 

FN1  THE OTHER STATES ARE ALASKA AND HAWAII.  SEE ALASKA STAT. SEC.
23.20.525(C)(7) (1962); HAWAII REV. LAWS SEC. 93-7(I) (SUPP. 1963). 

FN2  THE STATUTE PROVIDES THAT "AN INTERLOCUTORY OR PERMANENT
INJUNCTION RESTRAINING THE ENFORCEMENT, OPERATION OR EXECUTION OF ANY
STATE STATUTE BY RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE
...  SHALL NOT BE GRANTED BY ANY DISTRICT COURT OR JUDGE THEREOF UPON
THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH STATUTE UNLESS THE
APPLICATION THEREFOR IS HEARD AND DETERMINED BY A DISTRICT COURT OF
THREE JUDGES UNDER SECTION 2284 OF THIS TITLE." 

FN3  SECTION 1253 AUTHORIZES DIRECT APPEAL TO THIS COURT FROM AN
ORDER GRANTING AN INJUNCTION IN ANY PROCEEDING "REQUIRED BY ANY ACT OF
CONGRESS TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE
JUDGES." 

FN4  SEE ALSO UNITED STATES V. GEORGIA PUB. SERV. COMM'N, 371 U.S.
285, 287 (1963); PAUL V. UNITED STATES, 371 U.S. 245, 249-250 (1963). 
COMPARE CURRIE, THE THREE-JUDGE DISTRICT COURT IN CONSTITUTIONAL
LITIGATION, 32 U. CHI.  L. REV. 1, 37-50 (1964), WITH NOTE, THE THREE
JUDGE DISTRICT COURT:  SCOPE AND PROCEDURE UNDER SECTION 2281, 77 HARV.
L. REV. 299, 312-313 (1963). 

FN5  SECTION 1341 PROVIDES THAT "THE DISTRICT COURTS SHALL NOT
ENJOIN, SUSPEND OR RESTRAIN THE ASSESSMENT, LEVY OR COLLECTION OF ANY
TAX UNDER STATE LAW WHERE A PLAIN, SPEEDY AND EFFICIENT REMEDY MAY BE
HAD IN THE COURTS OF SUCH STATE." 

FN6  UNITED STATES V. ARLINGTON COUNTY, COMMONWEALTH OF VIRGINIA, 326
F.2D 929, 931 (C.A. 4TH CIR. 1964); UNITED STATES V. BUREAU OF REVENUE
OF STATE OF N.M., 291 F.2D 677, 679 (C.A. 10TH CIR. 1961); UNITED
STATES V. WOODWORTH, 170 F.2D 1019 (C.A. 2D CIR. 1948); CITY OF
SPRINGFIELD V. UNITED STATES, 99 F.2D 860, 862 (C.A. 1ST CIR. 1938),
CERT. DENIED, 306 U.S. 650 (1939); UNITED STATES V. LIVINGSTON, 179 F.
SUPP. 9, 11-12 (D.C.E.D.S.C.  1959), AFF'D, 364 U.S. 281 (1960). 

FN7  SEE S. REP. NO. 1035, 75TH CONG., 1ST SESS., PP. 2-3 (1937);
H.R. REP. NO. 1503, 75TH CONG., 1ST SESS., PP. 2-3 (1937); 81 CONG.
REC. 1416-1417 (1937). 

FN8  E.G., GENEVA CONVENTION OF AUGUST 22, 1864, FOR THE AMELIORATION
OF THE WOUNDED IN ARMIES IN THE FIELD, 22 STAT. 940 (1882); GENEVA
CONVENTION OF JULY 27, 1929, FOR THE AMELIORATION OF THE CONDITION OF
THE WOUNDED AND THE SICK OF ARMIES IN THE FIELD, 47 STAT. 2074 (1932);
GENEVA CONVENTION OF AUGUST 12, 1949, FOR THE MULTILATERAL PROTECTION
OF WAR VICTIMS, 6 U.S.T.&O.I.A. 3114, T.I.A.S. NO. 3362. 

FN9  SEE, E.G., 10 U.S.C. SEC 2602; 33 STAT. 600, AS AMENDED, 36
U.S.C. SEC 3. 

FN10  SEE 33 STAT. 600, AS AMENDED, 36 U.S.C. SEC 3; 64 STAT. 1109,
42 U.S.C. SECS 1855-1855G. 

FN11  SEE, E.G., 46 STAT. 66, AS AMENDED, 36 U.S.C. SEC 13 (PERMANENT
HEADQUARTERS BUILDING). 

FN12  SEE, E.G., PROCLAMATION OF PRESIDENT TAFT, AUGUST 22, 1911, 37
STAT. 1716; 64 STAT. 1109, 42 U.S.C. SECS. 1855AF), 1855B, 1855C; H.
CON.  RES.  232, 70 STAT. B32 (1956); H.R. REP. NO. 1728, 82D CONG., 2D
SESS., P. 2 (1952). 

FN13  SUCH WAS THE OPINION OF ASSISTANT ATTORNEY GENERAL MCKEVITT,
WHO SO INFORMED APPELLANT DEPARTMENT OF EMPLOYMENT.  SEE LETTER OF THE
ASSISTANT ATTORNEY GENERAL TO APPELLEE RED CROSS, DATED NOVEMBER 21,
1960, EXHIBIT 2, IN SUPPORT OF APPELLEES' MOTION FOR SUMMARY JUDGMENT
BELOW. 
..END :






HEIDER V. MICHIGAN SUGAR 385 U.S. 362 


NO. 48.  ARGUED DECEMBER 8, 1966.  - DECIDED DECEMBER 12, 1966.  - 375
MICH. 490, 134 N.W.2D 637, DISMISSED. 


HEIDER, ADMINISTRATOR V. MICHIGAN SUGAR CO. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE WRIT IS DISMISSED AS IMPROVIDENTLY GRANTED. 
..END :


















PARKER V. GLADDEN 385 U.S. 363 


NO. 81.  ARGUED NOVEMBER 9, 1966.  - DECIDED DECEMBER 12, 1966.  - 245
ORE.  - 407 P.2D 246, REVERSED. 


PETITIONER WAS CONVICTED OF SECOND DEGREE MURDER.  AT A HEARING ON HIS
PETITION FOR POST-CONVICTION RELIEF THE TRIAL COURT FOUND THAT A
BAILIFF ASSIGNED TO SHEPHERD THE SEQUESTERED JURY HAD STATED TO A
JUROR, "OH, THAT WICKED FELLOW, HE IS GUILTY," AND TO ANOTHER JUROR,
"IF THERE IS ANYTHING WRONG IN FINDING HIM GUILTY THE SUPREME COURT
WILL CORRECT IT."  BOTH STATEMENTS WERE OVERHEARD BY AT LEAST ONE
REGULAR JUROR OR AN ALTERNATE.  THE TRIAL COURT GRANTED A NEW TRIAL BUT
THE OREGON SUPREME COURT REVERSED.  HELD:  THE BAILIFF'S STATEMENTS
VIOLATED THE COMMAND OF THE SIXTH AMENDMENT, MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH, THAT THE ACCUSED SHALL ENJOY THE RIGHT TO A
TRIAL BY AN IMPARTIAL JURY AND BE CONFRONTED WITH THE WITNESSES AGAINST
HIM. 

PARKER V. GLADDEN, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF OREGON. 

PER CURIAM. 

PETITIONER, AFTER HIS CONVICTION FOR SECOND DEGREE MURDER, 235 ORE. 
366, 384 P.2D 986, FILED A PETITION FOR POST-CONVICTION RELIEF, ORE. 
REV.  STAT. SEC 138.550.  AT A HEARING ON THE PETITION THE TRIAL COURT
FOUND THAT A COURT BAILIFF ASSIGNED TO SHEPHERD THE SEQUESTERED JURY,
WHICH SAT FOR EIGHT DAYS, STATED TO ONE OF THE JURORS IN THE PRESENCE
OF OTHERS WHILE THE JURY WAS OUT WALKING ON A PUBLIC SIDEWALK:  "OH
THAT WICKED FELLOW (PETITIONER), HE IS GUILTY"; (FN1) AND ON ANOTHER
OCCASION SAID TO ANOTHER JUROR UNDER SIMILAR CIRCUMSTANCES, "IF THERE
IS ANYTHING WRONG IN FINDING PETITIONER GUILTY THE SUPREME COURT WILL
CORRECT IT."  (FN2)  BOTH STATEMENTS WERE OVERHEARD BY AT LEAST ONE
REGULAR JUROR OR AN ALTERNATE.  THE TRIAL COURT FOUND "THAT THE
UNAUTHORIZED COMMUNICATION WAS PREJUDICIAL AND THAT SUCH CONDUCT
MATERIALLY AFFECTED THE RIGHTS OF THE PETITIONER."  THE SUPREME COURT
OF OREGON REVERSED, FINDING THAT "THE BAILIFF'S MISCONDUCT DID NOT
DEPRIVE PETITIONER OF A CONSTITUTIONALLY CORRECT TRIAL."  245 ORE.  - ,
407 P.2D 246.  WE GRANTED CERTIORARI, 384 U.S. 904.  THE FEDERAL
QUESTION DECIDED BY OREGON'S HIGHEST COURT IS, OF COURSE, SUBJECT TO
FINAL DETERMINATION IN THIS COURT AND WE HAVE CONCLUDED THAT THE
JUDGMENT MUST BE REVERSED. 

WE BELIEVE THAT THE STATEMENTS OF THE BAILIFF TO THE JURORS ARE
CONTROLLED BY THE COMMAND OF THE SIXTH AMENDMENT, MADE APPLICABLE TO
THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
IT GUARANTEES THAT "THE ACCUSED SHALL ENJOY THE RIGHT TO A  ...  TRIAL,
BY AN IMPARTIAL JURY  ...  AND BE CONFRONTED WITH THE WITNESSES AGAINST
HIM  ...  ."  AS WE SAID IN TURNER V. LOUISIANA, 379 U.S. 466, 472-473
(1965), "THE 'EVIDENCE DEVELOPED' AGAINST A DEFENDANT SHALL COME FROM
THE WITNESS STAND IN A PUBLIC COURTROOM WHERE THERE IS FULL JUDICIAL
PROTECTION OF THE DEFENDANT'S RIGHT OF CONFRONTATION, OF CROSS
EXAMINATION, AND OF COUNSEL."  HERE THERE IS DISPUTE NEITHER AS TO WHAT
THE BAILIFF, AN OFFICER OF THE STATE, SAID NOR THAT WHEN HE SAID IT HE
WAS NOT SUBJECTED TO CONFRONTATION, CROSS-EXAMINATION OR OTHER
SAFEGUARDS GUARANTEED TO THE PETITIONER.  RATHER, HIS EXPRESSIONS WERE
"PRIVATE TALK," TENDING TO REACH THE JURY BY "OUTSIDE INFLUENCE." 
PATTERSON V. COLORADO, 205 U.S. 454, 462 (1907).  WE HAVE FOLLOWED THE
"UNDEVIATING RULE," SHEPPARD V. MAXWELL, 384 U.S. 333, 351 (1966), THAT
THE RIGHTS OF CONFRONTATION AND CROSS-EXAMINATION ARE AMONG THE
FUNDAMENTAL REQUIREMENTS OF A CONSTITUTIONALLY FAIR TRIAL.  KIRBY V.
UNITED STATES, 174 U.S. 47, 55, 56 (1899); IN RE OLIVER, 333 U.S. 257,
273 (1948); POINTER V. TEXAS, 380 U.S. 400 (1965). 

THE STATE SUGGESTS THAT NO PREJUDICE WAS SHOWN AND THAT NO HARM COULD
HAVE RESULTED BECAUSE 10 MEMBERS OF THE JURY TESTIFIED THAT THEY HAD
NOT HEARD THE BAILIFF'S STATEMENTS AND THAT OREGON LAW PERMITS A
VERDICT OF GUILTY BY 10 AFFIRMATIVE VOTES.  THIS OVERLOOKS THE FACT
THAT THE OFFICIAL CHARACTER OF THE BAILIFF - AS AN OFFICER OF THE COURT
AS WELL AS THE STATE - BEYOND QUESTION CARRIES GREAT WEIGHT WITH A JURY
WHICH HE HAD BEEN SHEPHERDING FOR EIGHT DAYS AND NIGHTS.  MOREOVER, THE
JURORS DELIBERATED FOR 26 HOURS, INDICATING A DIFFERENCE AMONG THEM AS
TO THE GUILT OF PETITIONER.  FINALLY, ONE  (FN3)  OF THE JURORS
TESTIFIED THAT SHE WAS PREJUDICED BY THE STATEMENTS, WHICH SUPPORTS THE
TRIAL COURT'S FINDING "THAT THE UNAUTHORIZED COMMUNICATION WAS
PREJUDICIAL AND THAT SUCH CONDUCT MATERIALLY AFFECTED THE RIGHTS OF THE
DEFENDANT."  THIS FINDING WAS NOT UPSET BY OREGON'S HIGHEST COURT. 
ASIDE FROM THIS, WE BELIEVE THAT THE UNAUTHORIZED CONDUCT OF THE
BAILIFF "INVOLVES SUCH A PROBABILITY THAT PREJUDICE WILL RESULT THAT IT
IS DEEMED INHERENTLY LACKING IN DUE PROCESS," ESTES V. TEXAS, 381 U.S.
532, 542-543 (1965).  AS WE SAID IN TURNER V. LOUISIANA, SUPRA, "IT
WOULD BE BLINKING REALITY NOT TO RECOGNIZE THE EXTREME PREJUDICE
INHERENT" IN SUCH STATEMENTS THAT REACHED AT LEAST THREE MEMBERS OF THE
JURY AND ONE ALTERNATE MEMBER.  ID., AT 473.  THE STATE SAYS THAT 10 OF
THE JURORS TESTIFIED THAT THEY HAD NOT HEARD THE STATEMENTS OF THE
BAILIFF.  THIS, HOWEVER, IGNORES THE TESTIMONY THAT ONE OF THE
STATEMENTS WAS MADE TO AN UNIDENTIFIED JUROR, WHICH, INCLUDING MRS.
INWARDS AND MRS. DRAKE, MAKES THREE.  IN ANY EVENT, PETITIONER WAS
ENTITLED TO BE TRIED BY 12, NOT 9 OR EVEN 10, IMPARTIAL AND
UNPREJUDICED JURORS.  SEE STATE V. MURRAY, 164 LA. 883, 888, 114 SO.
721, 723.  REVERSED. 

FN1  THE STATEMENT WAS MADE TO ALTERNATE JUROR MRS. GATTMAN AND WAS
OVERHEARD BY JUROR MRS. INWARDS. 

FN2  THE STATEMENT WAS MADE TO AN UNIDENTIFIED JUROR AND OVERHEARD BY
JUROR MRS. DRAKE. 

FN3  MRS. INWARDS WHEN RECALLED TO THE STAND TESTIFIED IN RESPONSE TO
A QUESTION BY THE COURT THAT "ALL IN ALL IT MUST HAVE INFLUENCED ME.  I
DIDN'T REALIZE IT AT THE TIME." 

MR. JUSTICE HARLAN, DISSENTING. 

BY NOT SETTING FORTH THE BACKGROUND OF THIS PROCEEDING THE COURT HAS
PUT SERIOUSLY OUT OF FOCUS THE CONSTITUTIONAL ISSUE INVOLVED IN THIS
CASE. 

PARKER WAS CONVICTED OF SECOND DEGREE MURDER ON MAY 19, 1961, AND
SENTENCED TO LIFE IMPRISONMENT.  ON SEPTEMBER 7, 1961, HE ADDRESSED A
LETTER TO SEVERAL JURORS PROTESTING HIS INNOCENCE, CONDEMNING HIS
ATTORNEYS FOR INCOMPETENCE, INTIMATING THAT WITNESSES WERE COERCED INTO
LYING, AND CHIDING THE JURORS FOR BEING DUPED INTO FINDING HIM GUILTY. 
AFTER AFFIRMANCE OF HIS CONVICTION BY THE SUPREME COURT OF OREGON ON
SEPTEMBER 15, 1963 - SOME TWO YEARS AFTER THE JURY VERDICT - PARKER
AGAIN SET OUT TO TAKE HIS CASE TO THE JURY.  HE FURNISHED HIS WIFE WITH
A TAPE RECORDING IN WHICH HE PROPOUNDED A SERIES OF QUESTIONS DESIGNED
TO UNCOVER POSSIBLE IMPROPRIETIES IN THE JURY'S DELIBERATIONS.  THE
JURY HAD DELIBERATED A LONG TIME AND PARKER HAD BEEN TOLD THAT THEIR
DISCUSSION WAS HEATED.  ALTHOUGH UNAWARE OF ANY IRREGULARITIES HE
COMMENCED "SHOOTING IN THE DARK."  (TR., P. 16.)  MRS.  PARKER THEN
ACQUIRED A JURY LIST AND DISCOVERED THOSE JURORS WHO HAD BEEN MOST
SYMPATHETIC TO HER HUSBAND.  (FN1)  SHE INVITED TWO REGULAR JURORS AND
AN ALTERNATE TO HER HOME TO LISTEN TO THE RECORDING AND DISCUSS THE
CASE.  AN ATTORNEY WAS THEN RETAINED TO PREPARE AFFIDAVITS DETAILING
THE ALLEGATIONS BEFORE US AND TO INSTITUTE THIS POST-CONVICTION
PROCEEDING.  THE STATEMENTS BEFORE THIS COURT WERE FOUND TO HAVE BEEN
MADE BY THIS APPARENTLY ELIZABETHAN-TONGUED BAILIFF, BUT, CONTRARY TO
THIS COURT'S ASSERTION, THE TRIAL COURT FOUND THAT THESE STATEMENTS
WERE ONLY PREJUDICIAL IN NATURE AND NOT THAT THEY HAD A PREJUDICIAL
EFFECT.  (FN2) THE OREGON SUPREME COURT DID NOT FIND THE TRIAL
PROCEEDINGS FUNDAMENTALLY UNFAIR. 

THIS COURT FINDS THE BAILIFF'S REMARKS TO BE IN VIOLATION OF THE
SIXTH AMENDMENT'S CONFRONTATION REQUIREMENT.  ALTHOUGH I BELIEVE THAT
"A RIGHT OF CONFRONTATION IS 'IMPLICIT IN THE CONCEPT OF ORDERED
LIBERTY,'" POINTER V. TEXAS, 380 U.S. 400, 408 (CONCURRING OPINION OF
HARLAN, J.), I CANNOT ACCEDE TO THE VIEW THAT THE SIXTH AMENDMENT IS
DIRECTLY APPLICABLE TO THE STATES THROUGH THE FOURTEENTH.  AS TO THE
CONFRONTATION PROBLEM HERE ASSERTED, I KNOW OF NO CASE IN WHICH THIS
COURT HAS HELD THAT JURORS MUST HAVE BEEN ABSOLUTELY INSULATED FROM ALL
EXPRESSIONS OF OPINION ON THE MERITS OF THE CASE OR THE JUDICIAL
PROCESS AT THE RISK OF DECLARATION OF A NEW TRIAL.  IRVIN V. DOWD, 366
U.S. 717.  EVEN WHERE THIS COURT HAS ACTED IN ITS SUPERVISORY CAPACITY
IT HAS REFUSED TO HOLD THAT JURY CONTACT WITH OUTSIDE INFORMATION IS
ALWAYS A CAUSE FOR OVERTHROWING A VERDICT, WISELY PREFERRING TO ALLOW
"EACH CASE  ...  TO TURN ON ITS SPECIAL FACTS."  MARSHALL V. UNITED
STATES, 360 U.S. 310, 312.  THE COURT NOTES THAT THESE REMARKS WERE
MADE BY A STATE OFFICER, BUT DOES NOT EXPLAIN WHY THE BAILIFF'S
OFFICIAL CAPACITY WOULD IN THIS INSTANCE MAKE HIM ANY MORE A "WITNESS"
THAN ANY OTHER PERSON ABLE TO COMMUNICATE WITH THE JURY.  THUS, THOUGH
I BELIEVE UNINTENTIONALLY, THE COURT'S OPINION LEAVES OPEN THE
POSSIBILITY OF AUTOMATICALLY REQUIRING A MISTRIAL ON CONSTITUTIONAL
GROUNDS WHENEVER ANY JUROR IS EXPOSED TO ANY POTENTIALLY PREJUDICIAL
EXPRESSION OF OPINION. 

CONSIDERING THIS CASE, AS I WOULD, UNDER THE DOCTRINE OF FUNDAMENTAL
FAIRNESS IMPLICIT IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, I THINK A DIFFERENT RESULT FOLLOWS.  MUCH RELIANCE HAS BEEN
PLACED UPON TURNER V. LOUISIANA, 379 U.S. 466.  BUT IN TURNER WE FACED
A SITUATION IN WHICH THE TRIAL COURT ALLOWED TWO DEPUTY SHERIFFS WHO
WERE KEY WITNESSES TO BE PLACED IN "CONTINUOUS AND INTIMATE
ASSOCIATION" WITH THE JURY, AND IT WOULD HAVE BEEN "BLINKING REALITY
NOT TO RECOGNIZE THE EXTREME PREJUDICE INHERENT IN THIS" SITUATION. 
379 U.S., AT 473.  THERE TOO WE FACED "A PROCEDURE EMPLOYED BY THE
STATE" INVOLVING "SUCH A PROBABILITY THAT PREJUDICE WILL RESULT" THAT
WE DEEMED IT "INHERENTLY LACKING IN DUE PROCESS."  ESTES V. TEXAS, 381
U.S. 532, 542-543.  HERE NO PROCEDURE ADOPTED BY THE STATE IS TO BE
FAULTED AND IT SEEMS CLEAR TO ME THAT THE RULE OF STROBLE V.
CALIFORNIA, 343 U.S. 181, AND IRVIN V. DOWD, SUPRA, SHOULD APPLY AND A
SUBSTANTIAL SHOWING OF PREJUDICE IN FACT MUST BE MADE BEFORE A DUE
PROCESS VIOLATION CAN BE FOUND. 

ON THIS BASIS THE OCCURRENCES BEFORE US SEEM INCONSEQUENTIAL TO ME IN
LIGHT OF THE EIGHT-DAY TRIAL AND TWENTY-SIX-HOUR JURY DELIBERATION. 
AND MY FEELING IS CONFIRMED BY THE EXTREMELY TRIVIAL EVIDENCE OF
PREJUDICE AMOUNTING TO NO MORE THAN AN ASSERTION BY ONE OBVIOUSLY
HIGHLY EMOTIONAL AND "GUILT-RIDDEN" JUROR THAT SHE MIGHT HAVE BEEN
INFLUENCED WITHOUT REALIZING IT.  (FN3)  "IT IS AN IMPOSSIBLE STANDARD
TO REQUIRE THAT TRIBUNAL (THE JURY) TO BE A LABORATORY, COMPLETELY
STERILIZED AND FREED FROM ANY EXTERNAL FACTORS."  RIDEAU V. LOUISIANA,
373 U.S. 723, 733 (CLARK, J., DISSENTING). 

THE POTENTIALITIES OF TODAY'S DECISION MAY GO FAR BEYOND WHAT, I AM
SURE, THE COURT INTENDS.  CERTAINLY THE COURT DOES NOT WISH TO
ENCOURAGE CONVICTED FELONS TO "INTIMIDATE, BESET AND HARASS," STEIN V.
NEW YORK, 346 U.S. 156, 178, A DISCHARGED JURY IN AN EFFORT TO
ESTABLISH POSSIBLE GROUNDS FOR A NEW TRIAL.  OUR COURTS HAVE ALWAYS
BEEN ALERT TO PROTECT THE SANCTITY OF THE JURY PROCESS.  MCDONALD V.
PLESS, 238 U.S. 264; SEE CASTALDI V. UNITED STATES, 251 F. SUPP. 681. 
BUT IN ALLOWING PARKER TO OVERTURN HIS CONVICTION ON THE BASIS OF WHAT
ARE NO MORE THAN INCONSEQUENTIAL INCIDENTS IN AN OTHERWISE
CONSTITUTIONALLY FLAWLESS PROCEEDING, THE COURT ENCOURAGES OTHERS TO
FOLLOW HIS EXAMPLE IN PURSUING THE JURY AND MAY BE THOUGHT BY SOME TO
COMMIT FEDERAL COURTS IN HABEAS CORPUS PROCEEDINGS TO INTERROGATE THE
JURY UPON THE MERE ALLEGATION THAT A PREJUDICIAL REMARK HAS REACHED THE
EARS OF ONE OF ITS MEMBERS.  REMMER V. UNITED STATES, 347 U.S. 227.  TO
ANY SUCH RESULT I CANNOT SUBSCRIBE. 

I THINK THE OREGON SUPREME COURT CORRECTLY ASSESSED THE
CONSTITUTIONAL ISSUE BEFORE US, AND I WOULD AFFIRM ITS JUDGMENT. 

FN1  THE RECORD SHOWS THAT MRS. PARKER FIRST CALLED JUROR NUMBER ONE,
MRS. INWARDS, AND UPON FINDING HER SYMPATHETIC OBTAINED FROM HER THE
NAMES OF THOSE WHO HAD HELD OUT LONGEST.  MRS. INWARDS ALSO INFORMED
MRS. PARKER THAT AN ALTERNATE JUROR, MRS. GATTMAN, WAS SYMPATHETIC TO
PARKER'S CAUSE. 

FN2  THE TRIAL COURT PURPORTED TO FOLLOW THE STATE SUPREME COURT'S
DECISION IN STATE V. KRISTICH, 226 ORE.  240, 359 P.2D 1106, WHICH HELD
THAT WHERE A BAILIFF HAD COMMUNICATED WITH A JURY ON A POINT OF LAW
PREJUDICE WOULD BE PRESUMED.  THUS THE TRIAL COURT SAID THAT "IF THE
MATTERS ALLEGED IN PLAINTIFF'S PETITION HAD BEEN CALLED TO THE COURT'S
ATTENTION, THE COURT, ON ITS OWN MOTION, WOULD HAVE GRANTED THE
DEFENDANT A NEW TRIAL," AND HELD THAT PARKER DESERVED A NEW TRIAL
BECAUSE THE COMMUNICATION WAS OF A PREJUDICIAL NATURE.  THE OREGON
SUPREME COURT REVERSED BECAUSE IT HELD THAT THE TRIAL COURT ERRONEOUSLY
APPLIED THE NEW-TRIAL STANDARD TO A POST-CONVICTION PROCEEDING WHERE
ONLY ERROR OF CONSTITUTIONAL MAGNITUDE WOULD SERVE TO OVERTHROW THE
VERDICT.  THE SUPREME COURT MADE NO SPECIFIC FINDING ON PREJUDICE BUT
IN DISTINGUISHING TURNER V. LOUISIANA, 379 U.S. 466, NOTED A
"DIFFERENCE IN DEGREE OF THE OUT-OF-COURTROOM INFLUENCE  ...  SO GREAT
AS TO LEAD US TO THE CONCLUSION THAT THE BAILIFF'S MISCONDUCT DID NOT
DEPRIVE DEFENDANT OF A CONSTITUTIONALLY CORRECT TRIAL."  245 ORE.  - ,
, 407 P.2D 246, 249. 

FN3  MRS. INWARDS, WHO ON RECALL TESTIFIED THAT SHE MUST HAVE BEEN
UNCONSCIOUSLY INFLUENCED, DENIED ANY INFLUENCE WHEN FIRST EXAMINED.  IN
HER FURTHER TESTIMONY SHE ADMITTED THAT SHE WAS EXTREMELY UPSET BY THE
VERDICT AND WOULD DO ANYTHING SHORT OF COMMITTING PERJURY TO OVERTURN
IT. SHE STATED, HOWEVER, THAT ALTHOUGH SHE HAD GONE TO THE TRIAL JUDGE
TO DISCUSS THE VERDICT SHE HAD NEVER MENTIONED THE BAILIFF'S REMARKS TO
HIM.  IN SPECIFYING THAT THE BAILIFF'S REMARKS "MUST" HAVE INFLUENCED
HER SHE LIMITED HERSELF TO DECLARING THAT THEY DID SO IN CONNECTION
WITH THE PRESSURE PUT ON HER BY OTHER JURORS DURING THE DELIBERATIONS
THUS STATING THAT "ALL IN ALL" SHE "MUST" HAVE BEEN INFLUENCED. 
..END :












MASON V. BILOXI 385 U.S. 370 


NO. 328.  DECIDED DECEMBER 12, 1966.  - CERTIORARI GRANTED; 184 SO. 2D
113, REVERSED. 


MASON ET AL. V. CITY OF BILOXI. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
MISSISSIPPI. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE SUPREME COURT OF MISSISSIPPI IS REVERSED.  BURTON V. WILMINGTON
PARKING AUTHORITY, 365 U.S. 715. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT CERTIORARI SHOULD BE
GRANTED AND THE CASE SET FOR ORAL ARGUMENT. 
..END :












FRENCH V. CALIFORNIA 385 U.S. 370 


NO. 581.  DECIDED DECEMBER 12, 1966.  - APPEAL DISMISSED. 


FRENCH V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















EXLEY V. UNITED STATES 385 U.S. 371 


NO. 644.  DECIDED DECEMBER 12, 1966.  - AFFIRMED. 


EXLEY EXPRESS, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















LAIRD V. CHENEY 385 U.S. 371 


NO. 675.  DECIDED DECEMBER 12, 1966.  - 196 KAN. 675, 414 P.2D 18,
APPEAL DISMISSED. 


LAIRD & CO. ET AL. V. CHENEY, DIRECTOR OF ALCOHOLIC BEVERAGE CONTROL, ET
AL. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SCHIPANI V. UNITED STATES 385 U.S. 372 


NO. 504.  CERTIORARI DENIED, NOVEMBER 7, 1966.  PETITION FOR REHEARING
GRANTED, DECEMBER 12, 1966.  - CERTIORARI GRANTED; 362 F.2D 825,
VACATED AND REMANDED. 


SCHIPANI V. UNITED STATES. 

ON PETITION FOR REHEARING. 

PER CURIAM. 

UPON THE SUGGESTION OF THE SOLICITOR GENERAL AND UPON AN INDEPENDENT
EXAMINATION OF THE CASE, THE PETITION FOR A REHEARING IS GRANTED, THE
ORDER OF THIS COURT DENYING CERTIORARI IS VACATED, CERTIORARI IS
GRANTED, THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT IS VACATED AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK FOR A NEW TRIAL
SHOULD THE GOVERNMENT SEEK TO PROSECUTE PETITIONER ANEW. 
..END :











GENERAL MOTORS V. MICHIGAN 385 U.S. 373 


NO. 658.  DECIDED DECEMBER 12, 1966.  - 376 MICH. 135, 135 N.W.2D 921;
378 MICH. 110, 142 N.W.2D 686, APPEAL DISMISSED. 


GENERAL MOTORS CORP. V. APPEAL BOARD OF THE MICHIGAN EMPLOYMENT SECURITY
COMMISSION ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BOND V. FLOYD 385 U.S. 116 


NO. 87.  ARGUED NOVEMBER 10, 1966.  - DECIDED DECEMBER 5, 1966.  - 251
F. SUPP. 333, REVERSED. 


SEVERAL MONTHS AFTER THE ELECTION IN JUNE 1965 TO THE GEORGIA HOUSE OF
REPRESENTATIVES OF APPELLANT BOND, A NEGRO, A CIVIL RIGHTS ORGANIZATION
OF WHICH HE WAS A STAFF MEMBER ISSUED AN ANTI-WAR STATEMENT AGAINST THE
GOVERNMENT'S VIETNAM POLICY AND THE OPERATION OF THE SELECTIVE SERVICE
LAWS.  BOND ENDORSED THE STATEMENT IN A NEWS INTERVIEW STATING AMONG
OTHER THINGS THAT AS "A SECOND CLASS CITIZEN" HE WAS NOT REQUIRED TO
SUPPORT THE WAR, AS A PACIFIST HE WAS OPPOSED TO ALL WAR, AND HE SAW
NOTHING INCONSISTENT WITH HIS STATEMENT AND HIS TAKING THE OATH OF
OFFICE.  HOUSE MEMBERS IN PETITIONS CHALLENGED BOND'S RIGHT TO BE
SEATED, CHARGING THAT HIS STATEMENTS AIDED OUR ENEMIES, VIOLATED THE
SELECTIVE SERVICE LAWS, DISCREDITED THE HOUSE, AND WERE INCONSISTENT
WITH THE LEGISLATOR'S MANDATORY OATH TO SUPPORT THE CONSTITUTION. 
FOLLOWING THE HOUSE CLERK'S REFUSAL TO SEAT HIM, BOND, MANIFESTING
WILLINGNESS TO TAKE THE OATH, CHALLENGED THE PETITIONS AS DEPRIVING HIM
OF HIS FIRST AMENDMENT RIGHTS AND BEING RACIALLY MOTIVATED.  AT A HOUSE
COMMITTEE HEARING BOND AMPLIFIED HIS VIEWS AND DENIED HAVING URGED
DRAFT CARD BURNING OR OTHER LAW VIOLATIONS.  FOLLOWING THE HEARING, THE
COMMITTEE CONCLUDED THAT BOND SHOULD NOT BE SEATED AND THE HOUSE
THEREAFTER REFUSED TO SEAT HIM.  BOND BROUGHT THIS ACTION IN DISTRICT
COURT FOR INJUNCTIVE RELIEF AND A DECLARATORY JUDGMENT.  THE DISTRICT
COURT, HOLDING THAT IT HAD JURISDICTION TO DECIDE THE CONSTITUTIONAL
ISSUE, CONCLUDED THAT BOND HAD BEEN ACCORDED PROCEDURAL DUE PROCESS
THROUGH THE HEARING.  IT ALSO HELD THAT THE HOUSE HAD A RATIONAL BASIS
FOR CONCLUDING THAT BOND'S REMARKS EXCEEDED CRITICISM OF NATIONAL
POLICY AND THAT HE COULD NOT IN GOOD FAITH TAKE AN OATH TO SUPPORT THE
STATE AND FEDERAL CONSTITUTIONS AND THUS COULD NOT MEET A QUALIFICATION
FOR MEMBERSHIP WHICH THE HOUSE HAD THE POWER TO IMPOSE.  WHILE BOND'S
APPEAL TO THIS COURT UNDER 28 U.S.C. SEC 1253 FROM THAT DECISION WAS
PENDING HE WAS AGAIN ELECTED AS A REPRESENTATIVE, IN A SPECIAL
ELECTION.  HE WAS REJECTED BY THE HOUSE RULES COMMITTEE WHEN HE
DECLINED TO RECANT, AND LATER WAS ELECTED AGAIN, IN THE REGULAR 1966
PRIMARY AND GENERAL ELECTIONS.  HELD: 

1.  THIS COURT HAS JURISDICTION TO DETERMINE WHETHER A
DISQUALIFICATION FOR THE OFFICE OF STATE LEGISLATOR UNDER COLOR OF A
PROPER CONSTITUTIONAL STANDARD VIOLATES FIRST AMENDMENT RIGHTS.  P.
131. 

2.  IN DISQUALIFYING BOND BECAUSE OF HIS STATEMENTS THE STATE
VIOLATED THE FIRST AMENDMENT MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH.  PP. 131-137. 

(A)  A MAJORITY OF STATE LEGISLATORS IS NOT AUTHORIZED TO TEST THE
SINCERITY WITH WHICH ANOTHER DULY ELECTED LEGISLATOR MEETS THE
REQUIREMENTS FOR HOLDING OFFICE OF SWEARING TO SUPPORT THE FEDERAL AND
STATE CONSTITUTIONS.  P. 132. 

(B)  THE STATE MAY NOT APPLY TO A LEGISLATOR A FIRST AMENDMENT
STANDARD STRICTER THAN THAT APPLICABLE TO A PRIVATE CITIZEN.  PP. 132
133. 

(C)  BOND'S STATEMENTS DO NOT SHOW AN INCITEMENT TO VIOLATE THE
SELECTIVE SERVICE STATUTE'S PROHIBITION OF COUNSELLING AGAINST
REGISTRATION FOR MILITARY SERVICE.  PP. 133-134. 

(D)  THOUGH A STATE MAY IMPOSE AN OATH REQUIREMENT ON LEGISLATORS IT
CANNOT LIMIT THEIR CAPACITY TO EXPRESS VIEWS ON LOCAL OR NATIONAL
POLICY.  "DEBATE ON PUBLIC ISSUES SHOULD BE UNINHIBITED, ROBUST, AND
WIDE-OPEN."  NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 270.  PP. 135
136. 

BOND ET AL. V. FLOYD ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER THE GEORGIA HOUSE OF
REPRESENTATIVES MAY CONSTITUTIONALLY EXCLUDE APPELLANT BOND, A DULY
ELECTED REPRESENTATIVE, FROM MEMBERSHIP BECAUSE OF HIS STATEMENTS, AND
STATEMENTS TO WHICH HE SUBSCRIBED, CRITICIZING THE POLICY OF THE
FEDERAL GOVERNMENT IN VIETNAM AND THE OPERATION OF THE SELECTIVE
SERVICE LAWS.  AN UNDERSTANDING OF THE CIRCUMSTANCES OF THE LITIGATION
REQUIRES A COMPLETE PRESENTATION OF THE EVENTS AND STATEMENTS WHICH LED
TO THIS APPEAL. 

BOND, A NEGRO, WAS ELECTED ON JUNE 15, 1965, AS THE REPRESENTATIVE TO
THE GEORGIA HOUSE OF REPRESENTATIVES FROM THE 136TH HOUSE DISTRICT.  OF
THE DISTRICT'S 6,500 VOTERS, APPROXIMATELY 6,000 ARE NEGROES.  BOND
DEFEATED HIS OPPONENT, MALCOLM DEAN, DEAN OF MEN AT ATLANTA UNIVERSITY,
ALSO A NEGRO, BY A VOTE OF 2,320 TO 487. 

ON JANUARY 6, 1966, THE STUDENT NONVIOLENT COORDINATING COMMITTEE, A
CIVIL RIGHTS ORGANIZATION OF WHICH BOND WAS THEN THE COMMUNICATIONS
DIRECTOR, ISSUED THE FOLLOWING STATEMENT ON AMERICAN POLICY IN VIETNAM
AND ITS RELATION TO THE WORK OF CIVIL RIGHTS ORGANIZATIONS IN THIS
COUNTRY: 

"THE STUDENT NONVIOLENT COORDINATING COMMITTEE HAS A RIGHT AND A
RESPONSIBILITY TO DISSENT WITH UNITED STATES FOREIGN POLICY ON AN ISSUE
WHEN IT SEES FIT.  THE STUDENT NONVIOLENT COORDINATING COMMITTEE NOW
STATES ITS OPPOSITION TO UNITED STATES' INVOLVEMENT IN VIET NAM ON
THESE GROUNDS: 

"WE BELIEVE THE UNITED STATES GOVERNMENT HAS BEEN DECEPTIVE IN ITS
CLAIMS OF CONCERN FOR FREEDOM OF THE VIETNAMESE PEOPLE, JUST AS THE
GOVERNMENT HAS BEEN DECEPTIVE IN CLAIMING CONCERN FOR THE FREEDOM OF
COLORED PEOPLE IN SUCH OTHER COUNTRIES AS THE DOMINICAN REPUBLIC, THE
CONGO, SOUTH AFRICA, RHODESIA AND IN THE UNITED STATES ITSELF. 

"WE, THE STUDENT NONVIOLENT COORDINATING COMMITTEE, HAVE BEEN
INVOLVED IN THE BLACK PEOPLE'S STRUGGLE FOR LIBERATION AND SELF
DETERMINATION IN THIS COUNTRY FOR THE PAST FIVE YEARS.  OUR WORK,
PARTICULARLY IN THE SOUTH, HAS TAUGHT US THAT THE UNITED STATES
GOVERNMENT HAS NEVER GUARANTEED THE FREEDOM OF OPPRESSED CITIZENS, AND
IS NOT YET TRULY DETERMINED TO END THE RULE OF TERROR AND OPPRESSION
WITHIN ITS OWN BORDERS. 

"WE OURSELVES HAVE OFTEN BEEN VICTIMS OF VIOLENCE AND CONFINEMENT
EXECUTED BY UNITED STATES GOVERNMENT OFFICIALS.  WE RECALL THE NUMEROUS
PERSONS WHO HAVE BEEN MURDERED IN THE SOUTH BECAUSE OF THEIR EFFORTS TO
SECURE THEIR CIVIL AND HUMAN RIGHTS, AND WHOSE MURDERERS HAVE BEEN
ALLOWED TO ESCAPE PENALTY FOR THEIR CRIMES. 

"THE MURDER OF SAMUEL YOUNG IN TUSKEGEE, ALA., IS NO DIFFERENT THAN
THE MURDER OF PEASANTS IN VIET NAM, FOR BOTH YOUNG AND THE VIETNAMESE
SOUGHT, AND ARE SEEKING, TO SECURE THE RIGHTS GUARANTEED THEM BY LAW. 
IN EACH CASE THE UNITED STATES GOVERNMENT BEARS A GREAT PART OF THE
RESPONSIBILITY FOR THESE DEATHS. 

"SAMUEL YOUNG WAS MURDERED BECAUSE UNITED STATES LAW IS NOT BEING
ENFORCED.  VIETNAMESE ARE MURDERED BECAUSE THE UNITED STATES IS
PURSUING AN AGGRESSIVE POLICY IN VIOLATION OF INTERNATIONAL LAW.  THE
UNITED STATES IS NO RESPECTER OF PERSONS OR LAW WHEN SUCH PERSONS OR
LAWS RUN COUNTER TO ITS NEEDS AND DESIRES. 

"WE RECALL THE INDIFFERENCE, SUSPICION AND OUTRIGHT HOSTILITY WITH
WHICH OUR REPORTS OF VIOLENCE HAVE BEEN MET IN THE PAST BY GOVERNMENT
OFFICIALS. 

"WE KNOW THAT FOR THE MOST PART, ELECTIONS IN THIS COUNTRY, IN THE
NORTH AS WELL AS THE SOUTH, ARE NOT FREE.  WE HAVE SEEN THAT THE 1965
VOTING RIGHTS ACT AND THE 1964 CIVIL RIGHTS ACT HAVE NOT YET BEEN
IMPLEMENTED WITH FULL FEDERAL POWER AND SINCERITY. 

"WE QUESTION, THEN, THE ABILITY AND EVEN THE DESIRE OF THE UNITED
STATES GOVERNMENT TO GUARANTEE FREE ELECTIONS ABROAD.  WE MAINTAIN THAT
OUR COUNTRY'S CRY OF 'PRESERVE FREEDOM IN THE WORLD' IS A HYPOCRITICAL
MASK BEHIND WHICH IT SQUASHES LIBERATION MOVEMENTS WHICH ARE NOT BOUND,
AND REFUSE TO BE BOUND, BY THE EXPEDIENCIES OF UNITED STATES COLD WAR
POLICIES. 

"WE ARE IN SYMPATHY WITH, AND SUPPORT, THE MEN IN THIS COUNTRY WHO
ARE UNWILLING TO RESPOND TO A MILITARY DRAFT WHICH WOULD COMPEL THEM TO
CONTRIBUTE THEIR LIVES TO UNITED STATES AGGRESSION IN VIET NAM IN THE
NAME OF THE 'FREEDOM' WE FIND SO FALSE IN THIS COUNTRY. 

"WE RECOIL WITH HORROR AT THE INCONSISTENCY OF A SUPPOSEDLY 'FREE'
SOCIETY WHERE RESPONSIBILITY TO FREEDOM IS EQUATED WITH THE
RESPONSIBILITY TO LEND ONESELF TO MILITARY AGGRESSION.  WE TAKE NOTE OF
THE FACT THAT 16 PER CENT OF THE DRAFTEES FROM THIS COUNTRY ARE NEGROES
CALLED ON TO STIFLE THE LIBERATION OF VIET NAM, TO PRESERVE A
'DEMOCRACY' WHICH DOES NOT EXIST FOR THEM AT HOME. 

"WE ASK, WHERE IS THE DRAFT FOR THE FREEDOM FIGHT IN THE UNITED
STATES? 

"WE THEREFORE ENCOURAGE THOSE AMERICANS WHO PREFER TO USE THEIR
ENERGY IN BUILDING DEMOCRATIC FORMS WITHIN THIS COUNTRY.  WE BELIEVE
THAT WORK IN THE CIVIL RIGHTS MOVEMENT AND WITH OTHER HUMAN RELATIONS
ORGANIZATIONS IS A VALID ALTERNATIVE TO THE DRAFT.  WE URGE ALL
AMERICANS TO SEEK THIS ALTERNATIVE, KNOWING FULL WELL THAT IT MAY COST
THEIR LIVES - AS PAINFULLY AS IN VIET NAM." 

ON THE SAME DAY THAT THIS STATEMENT WAS ISSUED, BOND WAS INTERVIEWED
BY TELEPHONE BY A REPORTER FROM A LOCAL RADIO STATION, AND, ALTHOUGH
BOND HAD NOT PARTICIPATED IN DRAFTING THE STATEMENT, HE ENDORSED THE
STATEMENT IN THESE WORDS: 

"WHY, I ENDORSE IT, FIRST, BECAUSE I LIKE TO THINK OF MYSELF AS A
PACIFIST AND ONE WHO OPPOSES THAT WAR AND ANY OTHER WAR AND EAGER AND
ANXIOUS TO ENCOURAGE PEOPLE NOT TO PARTICIPATE IN IT FOR ANY REASON
THAT THEY CHOOSE; AND SECONDLY, I AGREE WITH THIS STATEMENT BECAUSE OF
THE REASON SET FORTH IN IT - BECAUSE I THINK IT IS SORTA HYPOCRITICAL
FOR US TO MAINTAIN THAT WE ARE FIGHTING FOR LIBERTY IN OTHER PLACES AND
WE ARE NOT GUARANTEEING LIBERTY TO CITIZENS INSIDE THE CONTINENTAL
UNITED STATES. 

     *         *         *         *        * 

"WELL, I THINK THAT THE FACT THAT THE UNITED STATES GOVERNMENT FIGHTS
A WAR IN VIET NAM, I DON'T THINK THAT I AS A SECOND CLASS CITIZEN OF
THE UNITED STATES HAVE A REQUIREMENT TO SUPPORT THAT WAR.  I THINK MY
RESPONSIBILITY IS TO OPPOSE THINGS THAT I THINK ARE WRONG IF THEY ARE
IN VIET NAM OR NEW YORK, OR CHICAGO, OR ATLANTA, OR WHEREVER." 

WHEN THE INTERVIEWER SUGGESTED THAT OUR INVOLVEMENT IN VIETNAM WAS
BECAUSE "IF WE DO NOT STOP COMMUNISM THERE THAT IT IS JUST A QUESTION
OF WHERE WILL WE STOP IT NEXT," BOND REPLIED: 

"OH, NO, I'M NOT TAKING A STAND AGAINST STOPPING WORLD COMMUNISM, AND
I'M NOT TAKING A STAND IN FAVOR OF THE VIET CONG.  WHAT I'M SAYING THAT
IS, FIRST, THAT I DON'T BELIEVE IN THAT WAR.  THAT PARTICULAR WAR.  I'M
AGAINST ALL WAR.  I'M AGAINST THAT WAR IN PARTICULAR, AND I DON'T THINK
PEOPLE OUGHT TO PARTICIPATE IN IT.  BECAUSE I'M AGAINST WAR, I'M
AGAINST THE DRAFT.  I THINK THAT OTHER COUNTRIES IN THE WORLD GET ALONG
WITHOUT A DRAFT - ENGLAND IS ONE - AND I DON'T SEE WHY WE COULDN'T,
TOO. 

     *         *   *         *         * 

"  ...  I'M NOT ABOUT TO JUSTIFY THAT WAR, BECAUSE IT'S STOPPING
INTERNATIONAL COMMUNISM, OR WHATEVER - YOU KNOW, I JUST HAPPEN TO HAVE
A BASIC DISAGREEMENT WITH WARS FOR WHATEVER REASON THEY ARE FOUGHT -
...  FOUGHT TO STOP INTERNATIONAL COMMUNISM, TO PROMOTE INTERNATIONAL
COMMUNISM, OR FOR WHATEVER REASON.  I OPPOSE THE VIET CONG FIGHTING IN
VIET NAM AS MUCH AS I OPPOSE THE UNITED STATES FIGHTING IN VIET NAM.  I
HAPPEN TO LIVE IN THE UNITED STATES.  IF I LIVED IN NORTH VIET NAM I
MIGHT NOT HAVE THE SAME SORT OF FREEDOM OF EXPRESSION, BUT IT HAPPENS
THAT I LIVE HERE - NOT THERE." 

THE INTERVIEWER ALSO ASKED BOND IF HE FELT HE COULD TAKE THE OATH OF
OFFICE REQUIRED BY THE GEORGIA CONSTITUTION, AND BOND RESPONDED THAT HE
SAW NOTHING INCONSISTENT BETWEEN HIS STATEMENTS AND THE OATH.  BOND WAS
ALSO ASKED WHETHER HE WOULD ADHERE TO HIS STATEMENTS IF WAR WERE
DECLARED ON NORTH VIETNAM AND IF HIS STATEMENTS MIGHT BECOME
TREASONOUS.  HE REPLIED THAT HE DID NOT KNOW "IF I'M STRONG ENOUGH TO
PLACE MYSELF IN A POSITION WHERE I'D BE GUILTY OF TREASON." 

BEFORE JANUARY 10, 1966, WHEN THE GEORGIA HOUSE OF REPRESENTATIVES
WAS SCHEDULED TO CONVENE, PETITIONS CHALLENGING BOND'S RIGHT TO BE
SEATED WERE FILED BY 75 HOUSE MEMBERS.  THESE PETITIONS CHARGED THAT
BOND'S STATEMENTS GAVE AID AND COMFORT TO THE ENEMIES OF THE UNITED
STATES AND GEORGIA, VIOLATED THE SELECTIVE SERVICE LAWS, AND TENDED TO
BRING DISCREDIT AND DISRESPECT ON THE HOUSE.  THE PETITIONS FURTHER
CONTENDED THAT BOND'S ENDORSEMENT OF THE SNCC STATEMENT "IS TOTALLY AND
COMPLETELY REPUGNANT TO AND INCONSISTENT WITH THE MANDATORY OATH
PRESCRIBED BY THE CONSTITUTION OF GEORGIA FOR A MEMBER OF THE HOUSE OF
REPRESENTATIVES TO TAKE BEFORE TAKING HIS SEAT."  FOR THE SAME REASONS,
THE PETITIONS ASSERTED THAT BOND COULD NOT TAKE AN OATH TO SUPPORT THE
CONSTITUTION OF THE UNITED STATES.  WHEN BOND APPEARED AT THE HOUSE ON
JANUARY 10 TO BE SWORN IN, THE CLERK REFUSED TO ADMINISTER THE OATH TO
HIM UNTIL THE ISSUES RAISED IN THE CHALLENGE PETITIONS HAD BEEN
DECIDED. 

BOND FILED A RESPONSE TO THE CHALLENGE PETITIONS IN WHICH HE STATED
HIS WILLINGNESS TO TAKE THE OATH AND ARGUED THAT HE WAS NOT UNABLE TO
DO SO IN GOOD FAITH.  HE FURTHER ARGUED THAT THE CHALLENGE AGAINST HIS
SEATING HAD BEEN FILED TO DEPRIVE HIM OF HIS FIRST AMENDMENT RIGHTS,
AND THAT THE CHALLENGE WAS RACIALLY MOTIVATED.  A SPECIAL COMMITTEE WAS
APPOINTED TO REPORT ON THE CHALLENGE, AND A HEARING WAS HELD TO
DETERMINE EXACTLY WHAT BOND HAD SAID AND THE INTENTIONS WITH WHICH HE
HAD SAID IT. 

AT THIS HEARING, THE ONLY TESTIMONY GIVEN AGAINST BOND WAS THAT WHICH
HE HIMSELF GAVE THE COMMITTEE.  BOTH THE OPPONENTS BOND HAD DEFEATED IN
BECOMING THE REPRESENTATIVE OF THE 136TH DISTRICT TESTIFIED TO HIS GOOD
CHARACTER AND TO HIS LOYALTY TO THE UNITED STATES.  A RECORDING OF THE
INTERVIEW WHICH BOND HAD GIVEN TO THE REPORTER AFTER THE SNCC STATEMENT
WAS PLAYED, AND BOND WAS CALLED TO THE STAND FOR CROSS-EXAMINATION.  HE
THERE ADMITTED HIS STATEMENTS AND ELABORATED HIS VIEWS.  HE STATED THAT
HE CONCURRED IN THE SNCC STATEMENT "WITHOUT RESERVATION," AND, WHEN
ASKED IF HE ADMIRED THE COURAGE OF PERSONS WHO BURN THEIR DRAFT CARDS,
RESPONDED: 

"I ADMIRE PEOPLE WHO TAKE AN ACTION, AND I ADMIRE PEOPLE WHO FEEL
STRONGLY ENOUGH ABOUT THEIR CONVICTIONS TO TAKE AN ACTION LIKE THAT
KNOWING THE CONSEQUENCES THAT THEY WILL FACE, AND THAT WAS MY ORIGINAL
STATEMENT WHEN ASKED THAT QUESTION. 

     *         *         *         *         * 

"I HAVE NEVER SUGGESTED OR COUNSELED OR ADVOCATED THAT ANY ONE OTHER
PERSON BURN THEIR DRAFT CARD.   IN FACT, I HAVE MINE IN MY POCKET AND
WILL PRODUCE IT IF YOU WISH.  I DO NOT ADVOCATE THAT PEOPLE SHOULD
BREAK LAWS.  WHAT I SIMPLY TRY TO SAY WAS THAT I ADMIRED THE COURAGE OF
SOMEONE WHO COULD ACT ON HIS CONVICTIONS KNOWING THAT HE FACES PRETTY
STIFF CONSEQUENCES." 

TAPES OF AN INTERVIEW BOND HAD GIVEN THE PRESS AFTER THE CLERK HAD
REFUSED TO GIVE HIM THE OATH WERE ALSO HEARD BY THE SPECIAL COMMITTEE. 
IN THIS INTERVIEW, BOND STATED: 

"I STAND BEFORE YOU TODAY CHARGED WITH ENTERING INTO PUBLIC
DISCUSSION ON MATTERS OF NATIONAL INTEREST.  I HESITATE TO OFFER
EXPLANATIONS FOR MY ACTIONS OR DEEDS WHERE NO CHARGE HAS BEEN LEVIED
AGAINST ME OTHER THAN THE CHARGE THAT I HAVE CHOSEN TO SPEAK MY MIND
AND NO EXPLANATION IS CALLED FOR, FOR NO MEMBER OF THIS HOUSE, HAS
EVER, TO MY KNOWLEDGE, BEEN CALLED UPON TO EXPLAIN HIS PUBLIC
STATEMENTS FOR PUBLIC POSTURES AS A PREREQUISITE TO ADMISSION TO THAT
BODY.  I THEREFORE, OFFER TO MY CONSTITUENTS A STATEMENT OF MY VIEWS. 
I HAVE NOT COUNSELLED BURNING DRAFT CARDS, NOR HAVE I BURNED MINE.  I
HAVE SUGGESTED THAT CONGRESSIONALLY OUTLINED ALTERNATIVES TO MILITARY
SERVICE BE EXTENDED TO BUILDING DEMOCRACY AT HOME.  THE POSTURE OF MY
LIFE FOR THE PAST FIVE YEARS HAS BEEN CALCULATED TO GIVE NEGROES THE
ABILITY TO PARTICIPATE IN FORMULATION OF PUBLIC POLICIES.  THE FACT OF
MY ELECTION TO PUBLIC OFFICE DOES NOT LESSEN MY DUTY OR DESIRE TO
EXPRESS MY OPINIONS EVEN WHEN THEY DIFFER FROM THOSE HELD BY OTHERS. 
AS TO THE CURRENT CONTROVERSY BECAUSE OF CONVICTIONS THAT I HAVE
ARRIVED AT THROUGH EXAMINATION OF MY CONSCIENCE I HAVE DECIDED I
PERSONALLY CANNOT PARTICIPATE IN WAR. 

"I STAND HERE WITH INTENTIONS TO TAKE AN OATH - THAT OATH THEY JUST
TOOK IN THERE - THAT WILL DISPEL ANY DOUBTS ABOUT MY CONVICTIONS OR
LOYALTY." 

THE SPECIAL COMMITTEE GAVE GENERAL APPROVAL IN ITS REPORT TO THE
SPECIFIC CHARGES IN THE CHALLENGE PETITIONS THAT BOND'S ENDORSEMENT OF
THE SNCC STATEMENT AND HIS SUPPLEMENTARY REMARKS SHOWED THAT HE "DOES
NOT AND WILL NOT" SUPPORT THE CONSTITUTIONS OF THE UNITED STATES AND OF
GEORGIA, THAT HE "ADHERES TO THE ENEMIES OF THE  ...  STATE OF GEORGIA"
CONTRARY TO THE STATE CONSTITUTION, THAT HE GIVES AID AND COMFORT TO
THE ENEMIES OF THE UNITED STATES, THAT HIS STATEMENTS VIOLATED THE
UNIVERSAL MILITARY TRAINING AND SERVICE ACT, SEC 12, 62 STAT. 622, 50
U.S.C. APP. SEC 462, AND THAT HIS STATEMENTS "ARE REPREHENSIBLE AND ARE
SUCH AS TEND TO BRING DISCREDIT TO AND DISRESPECT OF THE HOUSE."  ON
THE SAME DAY THE HOUSE ADOPTED THE COMMITTEE REPORT WITHOUT FINDINGS
AND WITHOUT FURTHER ELOBRATING BOND'S LACK OF QUALIFICATIONS, AND
RESOLVED BY A VOTE OF 184 TO 12 THAT "BOND SHALL NOT BE ALLOWED TO TAKE
THE OATH OF OFFICE AS A MEMBER OF THE HOUSE OF REPRESENTATIVES AND THAT
REPRESENTATIVE-ELECT JULIAN BOND SHALL NOT BE SEATED AS A MEMBER OF THE
HOUSE OF REPRESENTATIVES."    BOND THEN INSTITUTED AN ACTION IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA FOR INJUNCTIVE
RELIEF AND A DECLARATORY JUDGMENT THAT THE HOUSE ACTION WAS
UNAUTHORIZED BY THE GEORGIA CONSTITUTION AND VIOLATED BOND'S RIGHTS
UNDER THE FIRST AMENDMENT.  A THREE-JUDGE DISTRICT COURT WAS CONVENED
UNDER 28 U.S.C. SEC 2281.  ALL THREE MEMBERS OF THE DISTRICT COURT HELD
THAT THE COURT HAD JURISDICTION TO DECIDE THE CONSTITUTIONALITY OF THE
HOUSE ACTION BECAUSE BOND HAD ASSERTED SUBSTANTIAL FIRST AMENDMENT
RIGHTS.  (FN1)  ON THE MERITS, HOWEVER, THE COURT WAS DIVIDED. 

JUDGES BELL AND MORGAN, WRITING FOR THE MAJORITY OF THE COURT,
ADDRESSED THEMSELVES FIRST TO THE QUESTION OF WHETHER THE GEORGIA HOUSE
HAD THE POWER UNDER STATE LAW TO DISQUALIFY BOND BASED ON ITS
CONCLUSION THAT HE COULD NOT SINCERELY TAKE THE OATH OF OFFICE.  THEY
REASONED THAT SEPARATION-OF-POWERS PRINCIPLES GAVE THE LEGISLATURE
POWER TO INSIST ON QUALIFICATIONS IN ADDITION TO THOSE SPECIFIED IN THE
STATE CONSTITUTION.  THE MAJORITY POINTED OUT THAT NOTHING IN THE
GEORGIA CONSTITUTION LIMITS THE QUALIFICATIONS OF THE LEGISLATORS TO
THOSE EXPRESSED IN THE CONSTITUTION. 

HAVING CONCLUDED THAT THE ACTION OF THE GEORGIA HOUSE WAS AUTHORIZED
BY STATE LAW, THE COURT CONSIDERED WHETHER BOND'S DISQUALIFICATION
VIOLATED HIS CONSTITUTIONAL RIGHT OF FREEDOM OF SPEECH.  IT REASONED
THAT THE DECISIONS OF THIS COURT INVOLVING PARTICULAR STATE POLITICAL
OFFICES SUPPORTED AN ATTITUDE OF RESTRAINT IN WHICH THE PRINCIPLES OF
SEPARATION OF POWERS AND FEDERALISM SHOULD BE BALANCED AGAINST THE
ALLEGED DEPRIVATION OF INDIVIDUAL CONSTITUTIONAL RIGHTS.  ON THIS
BASIS, THE MAJORITY BELOW FASHIONED THE TEST TO BE APPLIED IN THIS CASE
AS BEING WHETHER THE REFUSAL TO SEAT BOND VIOLATED PROCEDURAL OR WHAT
IT TERMED SUBSTANTIVE DUE PROCESS.  THE COURT HELD THAT THE HEARING
WHICH HAD BEEN GIVEN BOND BY THE HOUSE SATISFIED PROCEDURAL DUE
PROCESS.  AS FOR WHAT IT TERMED THE QUESTION OF SUBSTANTIVE DUE
PROCESS, THE MAJORITY CONCLUDED THAT THERE WAS A RATIONAL EVIDENTIARY
BASIS FOR THE RULING OF THE HOUSE.  IT REASONED THAT BOND'S RIGHT TO
DISSENT AS A PRIVATE CITIZEN WAS LIMITED BY HIS DECISION TO SEEK
MEMBERSHIP IN THE GEORGIA HOUSE.  MOREOVER, THE MAJORITY CONCLUDED, THE
SNCC STATEMENT AND BOND'S RELATED REMARKS WENT BEYOND CRITICISM OF
NATIONAL POLICY AND PROVIDED A RATIONAL BASIS FOR A CONCLUSION THAT THE
SPEAKER COULD NOT IN GOOD FAITH TAKE AN OATH TO SUPPORT THE STATE AND
FEDERAL CONSTITUTIONS: 

"A CITIZEN WOULD NOT VIOLATE HIS OATH BY OBJECTING TO OR CRITICIZING
THIS POLICY OR EVEN BY CALLING IT DECEPTIVE AND FALSE AS THE STATEMENT
DID. 

"BUT THE STATEMENT DOES NOT STOP WITH THIS.  IT IS A CALL TO ACTION
BASED ON RACE; A CALL ALIEN TO THE CONCEPT OF THE PLURALISTIC SOCIETY
WHICH MAKES THIS NATION.  IT ALIGNS THE ORGANIZATION WITH ' ...
COLORED PEOPLE IN SUCH OTHER COUNTRIES AS THE DOMINICAN REPUBLIC, THE
CONGO, SOUTH AFRICA, RHODESIA  ...  .'  IT REFERS TO ITS INVOLVEMENT IN
THE BLACK PEOPLE'S STRUGGLE FOR LIBERATION AND SELF-DETERMINATION  ...
.'  IT STATES THAT 'VIETNAMESE ARE MURDERED BECAUSE THE UNITED STATES
IS PURSUING AN AGGRESSIVE POLICY IN VIOLATION OF INTERNATIONAL LAW.' 
IT ALLEGES THAT NEGROES, REFERRING TO AMERICAN SERVICEMEN, ARE CALLED
ON TO STIFLE THE LIBERATION OF VIET NAM. 

"THE CALL TO ACTION, AND THIS IS WHAT WE FIND TO BE A RATIONAL BASIS
FOR THE DECISION WHICH DENIED MR. BOND HIS SEAT, IS THAT LANGUAGE WHICH
STATES THAT SNCC SUPPORTS THOSE MEN IN THIS COUNTRY WHO ARE UNWILLING
TO RESPOND TO A MILITARY DRAFT."  (FN2) 

CHIEF JUDGE TUTTLE DISSENTED.  (FN3)  HE REASONED THAT THE QUESTION
OF THE POWER OF THE GEORGIA HOUSE UNDER THE STATE CONSTITUTION TO
DISQUALIFY A REPRESENTATIVE UNDER THESE CIRCUMSTANCES HAD NEVER BEEN
DECIDED BY THE STATE COURTS, AND THAT FEDERAL COURTS SHOULD CONSTRUE
STATE LAW, IF POSSIBLE, SO AS TO AVOID UNNECESSARY FEDERAL
CONSTITUTIONAL ISSUES.  SINCE BOND SATISFIED ALL THE STATED
QUALIFICATIONS IN THE STATE CONSTITUTION, CHIEF JUDGE TUTTLE CONCLUDED
THAT HIS DISQUALIFICATION WAS BEYOND THE POWER OF THE HOUSE AS A MATTER
OF STATE CONSTITUTIONAL LAW. 

BOND APPEALED DIRECTLY TO THIS COURT FROM THE DECISION OF THE
DISTRICT COURT UNDER 28 U.S.C. SEC 1253.  WHILE THIS APPEAL WAS
PENDING, THE GOVERNOR OF GEORGIA CALLED A SPECIAL ELECTION TO FILL THE
VACANCY CAUSED BY BOND'S EXCLUSION.  BOND ENTERED THIS ELECTION AND WON
OVERWHELMINGLY.  THE HOUSE WAS IN RECESS, BUT THE RULES COMMITTEE HELD
A HEARING IN WHICH BOND DECLINED TO RECANT HIS EARLIER STATEMENTS. 
CONSEQUENTLY, HE WAS AGAIN PREVENTED FROM TAKING THE OATH OF OFFICE,
AND THE SEAT HAS REMAINED VACANT.  BOND AGAIN SOUGHT THE SEAT FROM THE
136TH DISTRICT IN THE REGULAR 1966 ELECTION, AND HE WON THE DEMOCRATIC
PRIMARY IN SEPTEMBER 1966, AND WON AN OVERWHELMING MAJORITY IN THE
ELECTION OF NOVEMBER 8, 1966.  (FN4) 

THE GEORGIA CONSTITUTION SETS OUT A NUMBER OF SPECIFIC PROVISIONS
DEALING WITH THE QUALIFICATIONS AND ELIGIBILITY OF STATE LEGISLATORS. 
THESE PROVIDE THAT REPRESENTATIVES SHALL BE CITIZENS OF THE UNITED
STATES, AT LEAST 21 YEARS OF AGE, CITIZENS OF GEORGIA FOR TWO YEARS,
AND RESIDENTS FOR ONE YEAR OF THE COUNTIES FROM WHICH ELECTED.  (FN5)
THE GEORGIA CONSTITUTION FURTHER PROVIDES THAT NO ONE CONVICTED OF
TREASON AGAINST THE STATE, OR OF ANY CRIME OF MORAL TURPITUDE, OR OF A
NUMBER OF OTHER ENUMERATED CRIMES MAY HOLD ANY OFFICE IN THE STATE. 
(FN6)  IDIOTS AND INSANE PERSONS ARE BARRED FROM OFFICE,  (FN7)  AND NO
ONE HOLDING ANY STATE OR FEDERAL OFFICE IS ELIGIBLE FOR A SEAT IN
EITHER HOUSE.  (FN8)  THE STATE CONSTITUTION ALSO PROVIDES: 

"ELECTION, RETURNS, ETC.; DISORDERLY CONDUCT.  - EACH HOUSE SHALL BE
THE JUDGE OF THE ELECTION, RETURNS, AND QUALIFICATIONS OF ITS MEMBERS
AND SHALL HAVE POWER TO PUNISH THEM FOR DISORDERLY BEHAVIOR, OR
MISCONDUCT, BY CENSURE, FINE, IMPRISONMENT, OR EXPULSION; BUT NO MEMBER
SHALL BE EXPELLED, EXCEPT BY A VOTE OF TWO-THIRDS OF THE HOUSE TO WHICH
HE BELONGS."  (FN9) 

THESE CONSTITUTE THE ONLY STATED QUALIFICATIONS FOR MEMBERSHIP IN THE
GEORGIA LEGISLATURE AND THE STATE CONCEDES THAT BOND MEETS ALL OF
THEM.  THE GEORGIA CONSTITUTION ALSO REQUIRES REPRESENTATIVES TO TAKE
AN OATH STATED IN THE CONSTITUTION: 

"OATH OF MEMBERS.  - EACH SENATOR AND REPRESENTATIVE, BEFORE TAKING
HIS SEAT, SHALL TAKE THE FOLLOWING OATH, OR AFFIRMATION, TO-WIT:  'I
WILL SUPPORT THE CONSTITUTION OF THIS STATE AND OF THE UNITED STATES,
AND ON ALL QUESTIONS AND MEASURES WHICH MAY COME BEFORE ME, I WILL SO
CONDUCT MYSELF, AS WILL, IN MY JUDGMENT, BE MOST CONDUCIVE TO THE
INTERESTS AND PROSPERITY OF THIS STATE.'"  (FN10) 

THE STATE POINTS OUT IN ITS BRIEF THAT THE LATTER PART OF THIS OATH,
INVOLVING THE ADMONITION TO ACT IN THE BEST INTERESTS OF THE STATE, WAS
NOT THE STANDARD BY WHICH BOND WAS JUDGED. 

THE STATE DOES NOT CLAIM THAT BOND REFUSED TO TAKE THE OATH TO
SUPPORT THE FEDERAL CONSTITUTION, A REQUIREMENT IMPOSED ON STATE
LEGISLATORS BY ART. VI, CL. 3, OF THE UNITED STATES CONSTITUTION: 

"THE SENATORS AND REPRESENTATIVES BEFORE MENTIONED, AND THE MEMBERS
OF THE SEVERAL STATE LEGISLATURES, AND ALL EXECUTIVE AND JUDICIAL
OFFICERS, BOTH OF THE UNITED STATES AND OF THE SEVERAL STATES, SHALL BE
BOUND BY OATH OR AFFIRMATION, TO SUPPORT THIS CONSTITUTION; BUT NO
RELIGIOUS TESTS SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY OFFICE
OR PUBLIC TRUST UNDER THE UNITED STATES." 

INSTEAD, IT ARGUES THAT THE OATH PROVISIONS OF THE STATE AND FEDERAL
CONSTITUTIONS CONSTITUTE AN ADDITIONAL QUALIFICATION.  BECAUSE UNDER
STATE LAW THE LEGISLATURE HAS EXCLUSIVE JURISDICTION TO DETERMINE
WHETHER AN ELECTED REPRESENTATIVE MEETS THE ENUMERATED QUALIFICATIONS,
IT IS ARGUED THAT THE LEGISLATURE HAS POWER TO LOOK BEYOND THE PLAIN
MEANING OF THE OATH PROVISIONS WHICH MERELY REQUIRE THAT THE OATHS BE
TAKEN.  THIS ADDITIONAL POWER IS SAID TO EXTEND TO DETERMINING WHETHER
A GIVEN REPRESENTATIVE MAY TAKE THE OATH WITH SINCERITY.  THE STATE
DOES NOT CLAIM THAT IT SHOULD BE COMPLETELY FREE OF JUDICIAL REVIEW
WHENEVER IT DISQUALIFIES AN ELECTED REPRESENTATIVE; IT ADMITS THAT, IF
A STATE LEGISLATURE EXCLUDED A LEGISLATOR ON RACIAL OR OTHER CLEARLY
UNCONSTITUTIONAL GROUNDS, THE FEDERAL (OR STATE) JUDICIARY WOULD BE
JUSTIFIED IN TESTING THE EXCLUSION BY FEDERAL CONSTITUTIONAL
STANDARDS.  (FN11) BUT THE STATE ARGUES THAT THERE CAN BE NO DOUBT AS
TO THE CONSTITUTIONALITY OF THE QUALIFICATION INVOLVED IN THIS CASE
BECAUSE IT IS ONE IMPOSED ON THE STATE LEGISLATURES BY ARTICLE VI OF
THE UNITED STATES CONSTITUTION.  MOREOVER, THE STATE CONTENDS THAT NO
DECISION OF THIS COURT SUGGESTS THAT A STATE MAY NOT ENSURE THE LOYALTY
OF ITS PUBLIC SERVANTS BY MAKING THE TAKING OF AN OATH A QUALIFICATION
OF OFFICE.  THUS THE STATE ARGUES THAT THERE SHOULD BE NO JUDICIAL
REVIEW OF THE LEGISLATURE'S POWER TO JUDGE WHETHER A PROSPECTIVE MEMBER
MAY CONSCIENTIOUSLY TAKE THE OATH REQUIRED BY THE STATE AND FEDERAL
CONSTITUTIONS. 

WE ARE NOT PERSUADED BY THE STATE'S ATTEMPT TO DISTINGUISH, FOR
PURPOSES OF OUR JURISDICTION, BETWEEN AN EXCLUSION ALLEGED TO BE ON
RACIAL GROUNDS AND ONE ALLEGED TO VIOLATE THE FIRST AMENDMENT.   THE
BASIS FOR THE ARGUED DISTINCTION IS THAT, IN THIS CASE, BOND'S
DISQUALIFICATION WAS GROUNDED ON A CONSTITUTIONAL STANDARD - THE
REQUIREMENT OF TAKING AN OATH TO SUPPORT THE CONSTITUTION.  BUT BOND'S
CONTENTION IS THAT THIS STANDARD WAS UTILIZED TO INFRINGE HIS FIRST
AMENDMENT RIGHTS, AND WE CANNOT DISTINGUISH, FOR PURPOSES OF OUR
ASSUMPTION OF JURISDICTION, BETWEEN A DISQUALIFICATION UNDER AN
UNCONSTITUTIONAL STANDARD AND A DISQUALIFICATION WHICH, ALTHOUGH UNDER
COLOR OF A PROPER STANDARD, IS ALLEGED TO VIOLATE THE FIRST AMENDMENT. 

WE CONCLUDE AS DID THE ENTIRE COURT BELOW THAT THIS COURT HAS
JURISDICTION TO REVIEW THE QUESTION OF WHETHER THE ACTION OF THE
GEORGIA HOUSE OF REPRESENTATIVES DEPRIVED BOND OF FEDERAL
CONSTITUTIONAL RIGHTS, AND WE NOW MOVE TO THE CENTRAL QUESTION POSED IN
THE CASE - WHETHER BOND'S DISQUALIFICATION BECAUSE OF HIS STATEMENTS
VIOLATED THE FREE SPEECH PROVISIONS OF THE FIRST AMENDMENT AS APPLIED
TO THE STATES THROUGH THE FOURTEENTH AMENDMENT. 

THE STATE ARGUES THAT THE EXCLUSION DOES NOT VIOLATE THE FIRST
AMENDMENT BECAUSE THE STATE HAS A RIGHT, UNDER ARTICLE VI OF THE UNITED
STATES CONSTITUTION, TO INSIST ON LOYALTY TO THE CONSTITUTION AS A
CONDITION OF OFFICE.  A LEGISLATOR OF COURSE CAN BE REQUIRED TO SWEAR
TO SUPPORT THE CONSTITUTION OF THE UNITED STATES AS A CONDITION OF
HOLDING OFFICE, BUT THAT IS NOT THE ISSUE IN THIS CASE, AS THE RECORD
IS UNCONTRADICTED THAT BOND HAS REPEATEDLY EXPRESSED HIS WILLINGNESS TO
SWEAR TO THE OATHS PROVIDED FOR IN THE STATE AND FEDERAL
CONSTITUTIONS.  NOR IS THIS A CASE WHERE A LEGISLATOR SWEARS TO AN OATH
PRO FORMA WHILE DECLARING OR MANIFESTING HIS DISAGREEMENT WITH OR
INDIFFERENCE TO THE OATH.  THUS, WE DO NOT QUARREL WITH THE STATE'S
CONTENTION THAT THE OATH PROVISIONS OF THE UNITED STATES AND GEORGIA
CONSTITUTIONS DO NOT VIOLATE THE FIRST AMENDMENT.  BUT THIS REQUIREMENT
DOES NOT AUTHORIZE A MAJORITY OF STATE LEGISLATORS TO TEST THE
SINCERITY WITH WHICH ANOTHER DULY ELECTED LEGISLATOR CAN SWEAR TO
UPHOLD THE CONSTITUTION.  SUCH A POWER COULD BE UTILIZED TO RESTRICT
THE RIGHT OF LEGISLATORS TO DISSENT FROM NATIONAL OR STATE POLICY OR
THAT OF A MAJORITY OF THEIR COLLEAGUES UNDER THE GUISE OF JUDGING THEIR
LOYALTY TO THE CONSTITUTION.  CERTAINLY THERE CAN BE NO QUESTION BUT
THAT THE FIRST AMENDMENT PROTECTS EXPRESSIONS IN OPPOSITION TO NATIONAL
FOREIGN POLICY IN VIETNAM AND TO THE SELECTIVE SERVICE SYSTEM.  THE
STATE DOES NOT CONTEND OTHERWISE.  BUT IT ARGUES THAT BOND WENT BEYOND
EXPRESSIONS OF OPPOSITION, AND COUNSELED VIOLATIONS OF THE SELECTIVE
SERVICE LAWS, AND THAT ADVOCATING VIOLATION OF FEDERAL LAW DEMONSTRATES
A LACK OF SUPPORT FOR THE CONSTITUTION.  THE STATE DECLINES TO ARGUE
THAT BOND'S STATEMENTS WOULD VIOLATE ANY LAW IF MADE BY A PRIVATE
CITIZEN, BUT IT DOES ARGUE THAT EVEN THOUGH SUCH A CITIZEN MIGHT BE
PROTECTED BY HIS FIRST AMENDMENT RIGHTS, THE STATE MAY NONETHELESS
APPLY A STRICTER STANDARD TO ITS LEGISLATORS.  WE DO NOT AGREE. 

BOND COULD NOT HAVE BEEN CONSTITUTIONALLY CONVICTED UNDER 50 U.S.C.
APP. SEC 462(A), WHICH PUNISHES ANY PERSON WHO "COUNSELS, AIDS, OR
ABETS ANOTHER TO REFUSE OR EVADE REGISTRATION."  (FN12) BOND'S
STATEMENTS WERE AT WORST UNCLEAR ON THE QUESTION OF THE MEANS TO BE
ADOPTED TO AVOID THE DRAFT.  WHILE THE SNCC STATEMENT SAID "WE ARE IN
SYMPATHY WITH, AND SUPPORT, THE MEN IN THIS COUNTRY WHO ARE UNWILLING
TO RESPOND TO A MILITARY DRAFT," THIS STATEMENT ALONE CANNOT BE
INTERPRETED AS A CALL TO UNLAWFUL REFUSAL TO BE DRAFTED.  MOREOVER,
BOND'S SUPPLEMENTARY STATEMENTS TEND TO RESOLVE THE OPAQUENESS IN FAVOR
OF LEGAL ALTERNATIVES TO THE DRAFT, AND THERE IS NO EVIDENCE TO THE
CONTRARY.  ON THE DAY THE STATEMENT WAS ISSUED, BOND EXPLAINED THAT HE
ENDORSED IT "BECAUSE I LIKE TO THINK OF MYSELF AS A PACIFIST AND ONE
WHO OPPOSES THAT WAR AND ANY OTHER WAR AND EAGER AND ANXIOUS TO
ENCOURAGE PEOPLE NOT TO PARTICIPATE IN IT FOR ANY REASON THAT THEY
CHOOSE."  IN THE SAME INTERVIEW, BOND STATED CATEGORICALLY THAT HE DID
NOT OPPOSE THE VIETNAM POLICY BECAUSE HE FAVORED THE COMMUNISTS; THAT
HE WAS A LOYAL AMERICAN CITIZEN AND SUPPORTED THE CONSTITUTION OF THE
UNITED STATES.  HE FURTHER STATED "I OPPOSE THE VIET CONG FIGHTING IN
VIET NAM AS MUCH AS I OPPOSE THE UNITED STATES FIGHTING IN VIET NAM." 
AT THE HEARING BEFORE THE SPECIAL COMMITTEE OF THE GEORGIA HOUSE, WHEN
ASKED HIS POSITION ON PERSONS WHO BURNED THEIR DRAFT CARDS, BOND
REPLIED THAT HE ADMIRED THE COURAGE OF PERSONS WHO "FEEL STRONGLY
ENOUGH ABOUT THEIR CONVICTIONS TO TAKE AN ACTION LIKE THAT KNOWING THE
CONSEQUENCES THAT THEY WILL FACE."  WHEN PRESSED AS TO WHETHER HIS
ADMIRATION WAS BASED ON THE VIOLATION OF FEDERAL LAW, BOND STATED: 
"I HAVE NEVER SUGGESTED OR COUNSELED OR ADVOCATED THAT ANY ONE OTHER
PERSON BURN THEIR DRAFT CARD.   IN FACT, I HAVE MINE IN MY POCKET AND
WILL PRODUCE IT IF YOU WISH.  I DO NOT ADVOCATE THAT PEOPLE SHOULD
BREAK LAWS.  WHAT I SIMPLY TRY TO SAY WAS THAT I ADMIRED THE COURAGE OF
SOMEONE WHO COULD ACT ON HIS CONVICTIONS KNOWING THAT HE FACES PRETTY
STIFF CONSEQUENCES." 

CERTAINLY THIS CLARIFICATION DOES NOT DEMONSTRATE ANY INCITEMENT TO
VIOLATION OF LAW.  NO USEFUL PURPOSE WOULD BE SERVED BY DISCUSSING THE
MANY DECISIONS OF THIS COURT WHICH ESTABLISH THAT BOND COULD NOT HAVE
BEEN CONVICTED FOR THESE STATEMENTS CONSISTENTLY WITH THE FIRST
AMENDMENT.  SEE, E.G., WOOD V. GEORGIA, 370 U.S. 375 (1962); YATES V.
UNITED STATES, 354 U.S. 298 (1957); TERMINIELLO V. CHICAGO, 337 U.S. 1
(1949).  NOR DOES THE FACT THAT THE DISTRICT COURT FOUND THE SNCC
STATEMENT TO HAVE RACIAL OVERTONES CONSTITUTE A REASON FOR HOLDING IT
OUTSIDE THE PROTECTION OF THE FIRST AMENDMENT.  IN FACT THE STATE
CONCEDES THAT THERE IS NO ISSUE OF RACE IN THE CASE. 

THE STATE ATTEMPTS TO CIRCUMVENT THE PROTECTION THE FIRST AMENDMENT
WOULD AFFORD TO THESE STATEMENTS IF MADE BY A PRIVATE CITIZEN BY
ARGUING THAT A STATE IS CONSTITUTIONALLY JUSTIFIED IN EXACTING A HIGHER
STANDARD OF LOYALTY FROM ITS LEGISLATORS THAN FROM ITS CITIZENS.  OF
COURSE, A STATE MAY CONSTITUTIONALLY REQUIRE AN OATH TO SUPPORT THE
CONSTITUTION FROM ITS LEGISLATORS WHICH IT DOES NOT REQUIRE OF ITS
PRIVATE CITIZENS.  BUT THIS DIFFERENCE IN TREATMENT DOES NOT SUPPORT
THE EXCLUSION OF BOND, FOR WHILE THE STATE HAS AN INTEREST IN REQUIRING
ITS LEGISLATORS TO SWEAR TO A BELIEF IN CONSTITUTIONAL PROCESSES OF
GOVERNMENT, SURELY THE OATH GIVES IT NO INTEREST IN LIMITING ITS
LEGISLATORS' CAPACITY TO DISCUSS THEIR VIEWS OF LOCAL OR NATIONAL
POLICY.  (FN13)  THE MANIFEST FUNCTION OF THE FIRST AMENDMENT IN A
REPRESENTATIVE GOVERNMENT REQUIRES THAT LEGISLATORS BE GIVEN THE WIDEST
LATITUDE TO EXPRESS THEIR VIEWS ON ISSUES OF POLICY.  THE CENTRAL
COMMITMENT OF THE FIRST AMENDMENT, AS SUMMARIZED IN THE OPINION OF THE
COURT IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 270 (1964), IS
THAT "DEBATE ON PUBLIC ISSUES SHOULD BE UNINHIBITED, ROBUST, AND WIDE
OPEN."  WE THINK THE RATIONALE OF THE NEW YORK TIMES CASE DISPOSES OF
THE CLAIM THAT BOND'S STATEMENTS FELL OUTSIDE THE RANGE OF
CONSTITUTIONAL PROTECTION.  JUST AS ERRONEOUS STATEMENTS MUST BE
PROTECTED TO GIVE FREEDOM OF EXPRESSION THE BREATHING SPACE IT NEEDS TO
SURVIVE, SO STATEMENTS CRITICIZING PUBLIC POLICY AND THE IMPLEMENTATION
OF IT MUST BE SIMILARLY PROTECTED.  THE STATE ARGUES THAT THE NEW YORK
TIMES PRINCIPLE SHOULD NOT BE EXTENDED TO STATEMENTS BY A LEGISLATOR
BECAUSE THE POLICY OF ENCOURAGING FREE DEBATE ABOUT GOVERNMENTAL
OPERATIONS ONLY APPLIES TO THE CITIZEN-CRITIC OF HIS GOVERNMENT.  WE
FIND NO SUPPORT FOR THIS DISTINCTION IN THE NEW YORK TIMES CASE OR IN
ANY OTHER DECISION OF THIS COURT.  THE INTEREST OF THE PUBLIC IN
HEARING ALL SIDES OF A PUBLIC ISSUE IS HARDLY ADVANCED BY EXTENDING
MORE PROTECTION TO CITIZEN-CRITICS THAN TO LEGISLATORS.  LEGISLATORS
HAVE AN OBLIGATION TO TAKE POSITIONS ON CONTROVERSIAL POLITICAL
QUESTIONS SO THAT THEIR CONSTITUENTS CAN BE FULLY INFORMED BY THEM, AND
BE BETTER ABLE TO ASSESS THEIR QUALIFICATIONS FOR OFFICE; ALSO SO THEY
MAY BE REPRESENTED IN GOVERNMENTAL DEBATES BY THE PERSON THEY HAVE
ELECTED TO REPRESENT THEM.  WE THEREFORE HOLD THAT THE DISQUALIFICATION
OF BOND FROM MEMBERSHIP IN THE GEORGIA HOUSE BECAUSE OF HIS STATEMENTS
VIOLATED BOND'S RIGHT OF FREE EXPRESSION UNDER THE FIRST AMENDMENT. 
BECAUSE OF OUR DISPOSITION OF THE CASE ON FIRST AMENDMENT GROUNDS, WE
NEED NOT DECIDE THE OTHER ISSUES ADVANCED BY BOND AND THE AMICI. 
(FN14) 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED. 

FN1  THE OPINION OF THE DISTRICT COURT IS REPORTED AT 251 F. SUPP.
333 (1966). 

FN2  ID., AT 344. 

FN3  ID., AT 345. 

FN4  A QUESTION WAS RAISED IN ORAL ARGUMENT AS TO WHETHER THIS CASE
MIGHT NOT BE MOOT SINCE THE SESSION OF THE HOUSE WHICH EXCLUDED BOND
WAS NO LONGER IN EXISTENCE.  THE STATE HAS NOT PRESSED THIS ARGUMENT,
AND IT COULD NOT DO SO, BECAUSE THE STATE HAS STIPULATED THAT IF BOND
SUCCEEDS ON THIS APPEAL HE WILL RECEIVE BACK SALARY FOR THE TERM FROM
WHICH HE WAS EXCLUDED. 

FN5  GEORGIA CONST., ART. 3, SEC 6 (SEC 2-1801, GA. CODE ANN.). 

FN6  GEORGIA CONST., ART. 2, SEC 2 (SEC 2-801, GA. CODE ANN.). 

FN7  IBID. 

FN8  GEORGIA CONST., ART. 3, SEC 4 (SEC 2-1606, GA. CODE ANN.). 

FN9  GEORGIA CONST., ART. 3, SEC 7 (SEC 2-1901, GA. CODE ANN.). 

FN10  GEORGIA CONST., ART. 3, SEC 4 (SEC 2-1605, GA. CODE ANN.). 

FN11  SEE GOMILLION V. LIGHTFOOT, 364 U.S. 339 (1960), IN WHICH THE
COURT STATED: "WHEN A STATE EXERCISES POWER WHOLLY WITHIN THE DOMAIN OF
STATE INTEREST, IT IS INSULATED FROM FEDERAL JUDICIAL REVIEW.  BUT SUCH
INSULATION IS NOT CARRIED OVER WHEN STATE POWER IS USED AS AN
INSTRUMENT FOR CIRCUMVENTING A FEDERALLY PROTECTED RIGHT."  364 U.S.,
AT 347. 

FN12  THE PERTINENT PROVISIONS OF SEC 462(A) ARE AS FOLLOWS: 

"ANY PERSON WHO SHALL KNOWINGLY MAKE, OR BE A PARTY TO THE MAKING, OF
ANY FALSE STATEMENT OR CERTIFICATE REGARDING OR BEARING UPON A
CLASSIFICATION OR IN SUPPORT OF ANY REQUEST FOR A PARTICULAR
CLASSIFICATION, FOR SERVICE UNDER THE PROVISIONS OF THIS TITLE 

...  , OR RULES, REGULATIONS, OR DIRECTIONS MADE PURSUANT THERETO, OR
WHO OTHERWISE EVADES OR REFUSES REGISTRATION OR SERVICE IN THE ARMED
FORCES OR ANY OF THE REQUIREMENTS OF THIS TITLE  ...  , OR WHO
KNOWINGLY COUNSELS, AIDS, OR ABETS ANOTHER TO REFUSE OR EVADE
REGISTRATION OR SERVICE IN THE ARMED FORCES OR ANY OF THE REQUIREMENTS
OF THIS TITLE ...  , OR OF SAID RULES, REGULATIONS, OR DIRECTIONS,  ...
OR ANY PERSON OR PERSONS WHO SHALL KNOWINGLY HINDER OR INTERFERE OR
ATTEMPT TO DO SO IN ANY WAY, BY FORCE OR VIOLENCE OR OTHERWISE, WITH
THE ADMINISTRATION OF THIS TITLE  ...  OR THE RULES OR REGULATIONS MADE
PURSUANT THERETO, OR WHO CONSPIRES TO COMMIT ANY ONE OR MORE OF SUCH
OFFENSES, 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  ...  ." 

FN13  MADISON AND HAMILTON ANTICIPATED THE OPPRESSIVE EFFECT ON
FREEDOM OF EXPRESSION WHICH WOULD RESULT IF THE LEGISLATURE COULD
UTILIZE ITS POWER OF JUDGING QUALIFICATIONS TO PASS JUDGMENT ON A
LEGISLATOR'S POLITICAL VIEWS.  AT THE CONSTITUTIONAL CONVENTION OF
1787, MADISON OPPOSED A PROPOSAL TO GIVE TO CONGRESS POWER TO ESTABLISH
QUALIFICATIONS IN GENERAL.  WARREN, THE MAKING OF THE CONSTITUTION 420
422 (1937).  THE JOURNAL OF THE FEDERAL CONVENTION OF 1787 STATES: 

"MR. MADISON WAS OPPOSED TO THE SECTION AS VESTING AN IMPROPER &
DANGEROUS POWER IN THE LEGISLATURE.  THE QUALIFICATIONS OF ELECTORS AND
ELECTED WERE FUNDAMENTAL ARTICLES IN A REPUBLICAN GOVT. AND OUGHT TO BE
FIXED BY THE CONSTITUTION.  IF THE LEGISLATURE COULD REGULATE THOSE OF
EITHER, IT CAN BY DEGREES SUBVERT THE CONSTITUTION  ...  .
QUALIFICATIONS FOUNDED ON ARTIFICIAL DISTINCTIONS MAY BE DEVISED, BY
THE STRONGER IN ORDER TO KEEP OUT PARTIZANS OF A WEAKER FACTION. 

     *         *         *  *         * 

"MR. MADISON OBSERVED THAT THE BRITISH PARLIAMT.  POSSESSED THE POWER
OF REGULATING THE QUALIFICATIONS BOTH OF THE ELECTORS, AND THE ELECTED;
AND THE ABUSE THEY HAD MADE OF IT WAS A LESSON WORTHY OF OUR
ATTENTION.  THEY HAD MADE THE CHANGES IN BOTH CASES SUBSERVIENT TO
THEIR OWN VIEWS, OR TO THE VIEWS OF POLITICAL OR RELIGIOUS PARTIES."  2
FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, PP. 249-250
(AUG. 10, 1787). 

HAMILTON AGREED WITH MADISON THAT: 

"THE QUALIFICATIONS OF THE PERSONS WHO MAY CHOOSE OR BE CHOSEN  ...
ARE DEFINED AND FIXED IN THE CONSTITUTION; AND ARE UNALTERABLE BY THE
LEGISLATURE."  THE FEDERALIST, NO. 60, P. 409 (COOKE ED. 1961). 

FN14  BOND ARGUES THAT THE ACTION OF THE GEORGIA HOUSE WAS NOT
AUTHORIZED BY STATE LAW, THAT IF THE STATE CONSTITUTION ALLOWS THIS
EXCLUSION IT DOES SO PURSUANT TO AN OATH WHICH IS UNCONSTITUTIONALLY
VAGUE, THAT THE EXCLUSION WAS BASED ON STATEMENTS PROTECTED BY THE
FIRST AMENDMENT, AND THAT THE EXCLUSION IS A BILL OF ATTAINDER AND AN
EX POST FACTO LAW.  IN ADDITION, AMICUS BRIEFS FILED IN SUPPORT OF
APPELLANT BOND ADD THE ARGUMENTS THAT THE DECISION NOT TO SEAT HIM WAS
INEXTRICABLY INVOLVED WITH RACE PREJUDICE AND THAT IT VIOLATED THE
GUARANTEE OF A REPUBLICAN FORM OF GOVERNMENT CLAUSE. 

SIMILARLY, WE NEED NOT PASS ON THE STANDING OF TWO OF BOND'S
CONSTITUENTS WHO JOINED IN THE SUIT BELOW.  THE MAJORITY BELOW
DISMISSED THE COMPLAINT AS TO THESE TWO CONSTITUENTS BECAUSE THEY
LACKED A SUFFICIENTLY DIRECT INTEREST IN THE CONTROVERSY AS WOULD GIVE
THEM STANDING.  THE MAJORITY NOTED THAT IT WAS APPROPRIATE TO DISMISS
THE CASE AS TO BOND'S CONSTITUENTS BECAUSE BOND'S COMPLAINT WOULD
RESOLVE EVERY ISSUE NECESSARY TO A DECISION IN THE CASE.  WE EXPRESS NO
OPINION ON THE QUESTION OF WHETHER BOND'S CONSTITUENTS CAN CLAIM THAT
CONCRETE ADVERSENESS WHICH WOULD BE NECESSARY TO GIVE THEM STANDING. 
..END :





















UNITED STATES V. ACME PROCESS CO. 385 U.S. 138 


NO. 86.  ARGUED NOVEMBER 9, 1966.  - DECIDED DECEMBER 5, 1966.  - 171
CT. CL. 324, 347 F.2D 509, REVERSED. 


RESPONDENT SUED THE GOVERNMENT IN THE COURT OF CLAIMS FOR DAMAGES FOR
BREACH OF CONTRACT TO MANUFACTURE RIFLES.  THE UNITED STATES ASSERTED
AS A DEFENSE THAT IT CANCELED THE CONTRACT BECAUSE THREE OF
RESPONDENT'S KEY EMPLOYEES HAD ACCEPTED COMPENSATION FOR AWARDING
SUBCONTRACTS IN VIOLATION OF THE ANTI-KICKBACK ACT.  THE COURT OF
CLAIMS FOUND THAT THE KICKBACKS HAD BEEN PAID AND THAT THIS WAS THE
BASIS FOR THE CANCELLATION BUT CONSTRUED THE ACT AS NOT AUTHORIZING
SUCH ACTION.  HELD:  THE ACT, WHICH CLEARLY EXPRESSES A POLICY HOSTILE
TO KICKBACKS, AUTHORIZED THE UNITED STATES TO CANCEL THIS CONTRACT. 
PP. 142-148. 

UNITED STATES V. ACME PROCESS EQUIPMENT CO. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, ACME PROCESS EQUIPMENT COMPANY, BROUGHT THIS ACTION
AGAINST THE UNITED STATES IN THE COURT OF CLAIMS TO RECOVER DAMAGES FOR
BREACH OF A CONTRACT UNDER WHICH ACME UNDERTOOK THROUGH ITSELF AND
SUBCONTRACTORS TO MANUFACTURE 2,751 75-MM. RECOILLESS RIFLES FOR ABOUT
$337 PER RIFLE.  AMONG OTHER DEFENSES, THE UNITED STATES ALLEGED THAT
IT HAD RIGHTFULLY CANCELED ITS CONTRACT WITH ACME BECAUSE THREE OF
ACME'S PRINCIPAL EMPLOYEES HAD ACCEPTED COMPENSATION FOR AWARDING
SUBCONTRACTS IN VIOLATION OF THE ANTI-KICKBACK ACT SET OUT IN PART
BELOW.  (FN1)  THE COURT OF CLAIMS FOUND, AS FACTS, THAT THE KICKBACKS
HAD BEEN PAID AS ALLEGED AND THAT THIS WAS THE GROUND ON WHICH THE
UNITED STATES HAD CANCELED THE PRIME CONTRACT WITH ACME, BUT CONSTRUED
THE ACT AS NOT AUTHORIZING THE CANCELLATION.  171 CT. CL. 324, 347 F.2D
509.  WE HOLD THAT IT DOES. 

                                        I. 

IN OCTOBER 1952, ACME HIRED HARRY TUCKER, JR., AND HIS ASSOCIATE,
JAMES NORRIS, FOR THE PURPOSE OF ESTABLISHING AND MANAGING A NEW
DIVISION OF THE COMPANY TO HANDLE GOVERNMENT CONTRACTS.  NORRIS WAS
MADE GENERAL MANAGER OF PRODUCTION WITH AUTHORITY TO SUBMIT BIDS, SIGN
GOVERNMENT CONTRACTS, AND AWARD SUBCONTRACTS.  TUCKER WAS PLACED IN
CHARGE OF SALES, GOVERNMENT CONTRACTS, AND EXPEDITING SUBCONTRACT
OPERATIONS.  PRIOR TO THIS TIME TUCKER HAD ENTERED INTO A CONTRACT WITH
ALL METALS INDUSTRIES, INC., UNDER WHICH HE WAS TO RECEIVE A COMMISSION
FOR ALL SALES TO CUSTOMERS, INCLUDING ACME, PROCURED BY HIM.  TUCKER'S
EMPLOYMENT CONTRACT WITH ACME SPECIFICALLY STATED THAT HE REPRESENTED
AND WOULD CONTINUE TO REPRESENT FIRMS IN OTHER LINES OF BUSINESS, BUT
ACME DID NOT CONSULT WITH ANY OF HIS OTHER CLIENTS AT THE TIME TUCKER
WAS HIRED. 

LATE IN OCTOBER, TUCKER ADVISED HIS SUPERIORS AT ACME OF THE PROPOSED
ARMY CONTRACT FOR RIFLES, AND AT TUCKER'S SUGGESTION, ACME SUBMITTED A
BID OF $337 PER RIFLE.  SINCE ACME'S BID WAS THE LOWEST, THE ARMY BEGAN
NEGOTIATIONS WITH ACME CULMINATING IN THE AWARD OF THE CONTRACT IN
JANUARY 1953.  THE NEGOTIATIONS WERE HANDLED BY TUCKER AND NORRIS FOR
ACME.  SINCE IT WAS CONTEMPLATED THAT THE PROJECT WOULD BE LARGELY
SUBCONTRACTED, LEAVING TO ACME ONLY THE FINAL FINISHING AND ASSEMBLY OF
COMPONENTS, THE ARMY EXPRESSED A KEEN INTEREST IN ACME'S PROPOSED
SUBCONTRACTORS.  NOT ONLY DID IT REVIEW ACME'S SUBCONTRACTING PLANS AND
REQUIRE ACME TO NOTIFY IT OF CHANGES IN THOSE PLANS DURING THE FINAL
STAGES OF NEGOTIATION, BUT THE CONTRACT EVENTUALLY AWARDED REQUIRED
GOVERNMENT APPROVAL OF ALL SUBCONTRACTS IN EXCESS OF $25,000.  ALL
METALS, BECAUSE ITS PROPOSED SUBCONTRACT AMOUNTED TO ONE-THIRD OF THE
AMOUNT OF THE PRIME CONTRACT, ACTUALLY PARTICIPATED IN THE NEGOTIATIONS
BETWEEN ACME AND THE ARMY. 

DURING THIS PERIOD OF NEGOTIATION TWO OTHER DEVELOPMENTS TOOK PLACE. 
TUCKER OBTAINED AGREEMENTS FROM TWO OTHER POTENTIAL SUBCONTRACTORS TO
PAY HIM COMMISSIONS ON ANY ORDERS HE COULD PROCURE FROM ACME.  ARMY
CONTRACTING OFFICERS WARNED ACME'S PRESIDENT, JOSHUA EPSTEIN, THAT
TUCKER WAS SUSPECTED OF HAVING ENGAGED IN CONTINGENT-FEE ARRANGEMENTS
WITH OTHER GOVERNMENT CONTRACTORS. 

FINALLY, ACME WAS AWARDED THE PRIME CONTRACT.  ALTHOUGH THE PRICE WAS
FIXED AT $337 PER RIFLE, THE CONTRACT CONTAINED A PRICE REDETERMINATION
CLAUSE UNDER WHICH, AFTER 30% OF THE RIFLES WERE DELIVERED, THE PARTIES
COULD NEGOTIATE THE PRICE ON PAST AND FUTURE SHIPMENTS UPWARD OR
DOWNWARD, WITH AN UPPER LIMIT OF $385 PER RIFLE.  WITHIN A FEW WEEKS
AFTER THE PRIME CONTRACT WAS AWARDED, ALL METALS AND THE OTHER TWO
COMPANIES WITH WHICH TUCKER HAD PRIOR KICKBACK ARRANGEMENTS OBTAINED
SUBCONTRACTS FROM ACME.  (FN2)  TUCKER WAS PAID HIS KICKBACKS, BUT,
APPARENTLY UNSATISFIED WITH THE AMOUNT OF HIS PAYOFF, HE GOT JACK
EPSTEIN, THE SUPERINTENDENT OF THE CHIEF ACME PLANT AND THE SON OF
ACME'S PRESIDENT AND PRINCIPAL STOCKHOLDER, TO JOIN THE KICKBACK
CONSPIRACY.  TOGETHER EPSTEIN AND TUCKER THREATENED TO CANCEL ALL
METALS' SUBCONTRACT UNLESS IT PAID $25,000 TO A DUMMY CORPORATION OWNED
BY TUCKER, NORRIS, AND EPSTEIN FOR FICTITIOUS CONSULTING SERVICES.  ALL
METALS RELUCTANTLY ACCEDED TO THE SHAKEDOWN.  THE AMOUNT PAID TO
TUCKER, NORRIS, AND EPSTEIN WAS CHARGED TO ACME THROUGH AN INCREASE IN
THE SUBCONTRACT PRICE. 

ALTHOUGH THEY KNEW THAT TUCKER WAS REPRESENTING OTHER COMPANIES AND
HAD BEEN NOTIFIED OF THE ARMY'S SUSPICIONS OF TUCKER'S INVOLVEMENT IN
CONTINGENT-FEE ARRANGEMENTS, OTHER OFFICIALS OF ACME WERE NOT AWARE OF
THE KICKBACK ACTIVITIES OF TUCKER, NORRIS AND EPSTEIN UNTIL LATE IN
1953.  AT THAT TIME, ACME'S PRESIDENT CAUSED THE RESIGNATION OF THE
THREE SUSPECTED OFFICIALS. 

IN 1956 TUCKER, NORRIS, AND EPSTEIN WERE INDICTED FOR VIOLATION OF
THE THEN ANTI-KICKBACK ACT, 60 STAT. 37.  (FN3)  AFTER PRESENTATION OF
THE GOVERNMENT'S CASE, THE DISTRICT COURT GRANTED THE DEFENDANTS'
MOTION FOR ACQUITTAL ON THE GROUND THAT THE ACT - WHICH AT THAT TIME
EMBRACED ONLY "COST-PLUS-A-FIXED-FEE OR OTHER COST REIMBURSABLE"
GOVERNMENT CONTRACTS - DID NOT APPLY TO ACME'S CONTRACT, A FIXED-PRICE
CONTRACT WITH A PROVISION FOR LIMITED PRICE REDETERMINATION.  THE COURT
FOUND THE DEFENDANTS' ACTIONS "DESPICABLE AND MORALLY REPREHENSIBLE,
BUT UNFORTUNATELY WITHIN THE NARROW LETTER OF THE LAW."  THE COURT
RECOMMENDED THAT CONGRESS AMEND THE ANTI-KICKBACK ACT "TO INCLUDE AS A
CRIME THE VICIOUS AND IMMORAL TYPE OF CONDUCT THAT HAS BEEN EXHIBITED
IN THIS CASE."  UNITED STATES V. NORRIS, CRIM. NO. 18535 (D.C.E.D.
PA.), APRIL 14, 1956. 

THE DISTRICT COURT'S OPINION DID INDEED SPUR THE COMPTROLLER GENERAL
TO RECOMMEND AMENDATORY LEGISLATION AND IN 1960 THE ANTI-KICKBACK ACT
WAS AMENDED TO APPLY TO ALL "NEGOTIATED CONTRACTS."  (FN4)  THE CIVIL
PROVISION OF THE AMENDED ACT WAS MADE RETROACTIVE TO ALLOW GOVERNMENT
RECOVERY OF KICKBACKS "WHETHER HERETOFORE OR HEREAFTER PAID OR INCURRED
BY THE SUBCONTRACTOR." 

                    II. 

THE ANTI-KICKBACK ACT, AS ORIGINALLY PASSED IN 1946 AND AS AMENDED IN
1960, PROVIDES TWO EXPRESS SANCTIONS FOR ITS VIOLATION:  (1) FINE OR
IMPRISONMENT FOR ONE WHO MAKES OR RECEIVES A KICKBACK, AND (2) RECOVERY
OF THE KICKBACK BY THE UNITED STATES.  THE COURT OF CLAIMS HELD, AND IT
IS ARGUED HERE, THAT HAD CONGRESS WANTED "TO PROVIDE THE ADDITIONAL
REMEDY OF CONTRACT ANNULMENT, IT COULD HAVE DONE SO" BY EXPRESS
LANGUAGE, 171 CT. CL., AT 343, 347 F.2D, AT 521, AND OF COURSE IT COULD
HAVE.  BUT THE FACT THAT IT DID NOT SEE FIT TO PROVIDE FOR SUCH A
REMEDY BY EXPRESS LANGUAGE DOES NOT END THE MATTER.  THE ANTI-KICKBACK
ACT NOT ONLY "PROHIBITED" SUCH PAYMENTS, BUT CLEARLY EXPRESSED A POLICY
DECIDEDLY HOSTILE TO THEM.  THEY WERE RECOGNIZED AS DEVICES HURTFUL TO
THE GOVERNMENT'S PROCUREMENT PRACTICES.  EXTRA EXPENDITURES TO GET
SUBCONTRACTS NECESSARILY ADD TO GOVERNMENT COSTS IN COST-PLUS-A-FIXED
FEE AND OTHER COST REIMBURSABLE CONTRACTS.  AND THIS IS ALSO TRUE WHERE
THE PRIME CONTRACT IS A NEGOTIATED FIXED-PRICE CONTRACT WITH A PRICE
REDETERMINATION CLAUSE, SUCH AS THIS PRIME CONTRACT IS HERE.  THE
KICKBACKS HERE ARE PASSED ON TO THE GOVERNMENT IN TWO STAGES.  THE
PRIME CONTRACTOR RARELY SUBMITS HIS BID UNTIL AFTER HE HAS TENTATIVELY
LINED UP HIS SUBCONTRACTORS.  INDEED, AS HERE, THE SUBCONTRACTORS
FREQUENTLY PARTICIPATE IN NEGOTIATION OF THE PRIME CONTRACT.  THE
SUBCONTRACTOR'S TENTATIVE BID WILL, OF COURSE, REFLECT THE AMOUNT HE
CONTEMPLATES PAYING AS A KICKBACK, AND THEN HIS INFLATED BID WILL BE
REFLECTED IN THE PRIME CONTRACTOR'S BID TO THE GOVERNMENT.  AT THE
RENEGOTIATION STAGE, WHERE THE PRIME CONTRACTOR'S ACTUAL COST
EXPERIENCE IS THE BASIS FOR PRICE REDETERMINATION, ANY KICKBACKS, PAID
BY SUBCONTRACTORS AND PASSED ON TO THE PRIME CONTRACTOR AFTER THE PRIME
CONTRACT IS AWARDED, WILL BE PASSED ON TO THE GOVERNMENT IN THE FORM OF
PRICE REDETERMINATION UPWARD.  (FN5) 

ACME ARGUES, HOWEVER, THAT THE EXPRESS PROVISION FOR RECOVERY OF
KICKBACKS IS ENOUGH TO PROTECT THE GOVERNMENT FROM INCREASED COSTS
ATTRIBUTABLE TO THEM.  BUT THIS ARGUMENT RESTS ON TWO FALSE
ASSUMPTIONS.  THE FIRST IS THAT KICKBACKS CAN EASILY BE DETECTED AND
RECOVERED.  THIS IS HARDLY THE CASE.  KICKBACKS BEING MADE CRIMINAL
MEANS THAT THEY MUST BE MADE - IF AT ALL - IN SECRECY.  THOUGH THEY
NECESSARILY INFLATE THE PRICE TO THE GOVERNMENT, THIS INFLATION IS
RARELY DETECTABLE.  THIS IS PARTICULARLY TRUE AS REGARDS DEFENSE
CONTRACTS WHERE THE PRODUCTS INVOLVED ARE NOT USUALLY FOUND ON THE
COMMERCIAL MARKET AND WHERE THERE MAY NOT BE EFFECTIVE COMPETITION. 
SUCH CONTRACTS ARE GENERALLY NEGOTIATED AND AWARDED WITHOUT FORMAL
ADVERTISING AND COMPETITIVE BIDDING, AND THERE IS OFTEN NO OPPORTUNITY
TO COMPARE GOING PRICES WITH THE PRICE NEGOTIATED BY THE GOVERNMENT. 
(FN6) KICKBACKS WILL USUALLY NOT BE DISCOVERED, IF AT ALL, UNTIL AFTER
THE PRIME CONTRACT IS LET.  THE SECOND FALSE ASSUMPTION UNDERLYING
ACME'S ARGUMENT IS THAT THE INCREASED COST TO THE GOVERNMENT IS
NECESSARILY EQUAL TO THE AMOUNT OF THE KICKBACK WHICH IS RECOVERABLE. 
OF COURSE, A SUBCONTRACTOR WHO MUST PAY A KICKBACK IS LIKELY TO INCLUDE
THE AMOUNT OF THE KICKBACK IN HIS CONTRACT PRICE.  BUT THIS IS NOT
ALL.  A SUBCONTRACTOR WHO ANTICIPATES OBTAINING A SUBCONTRACT BY VIRTUE
OF A KICKBACK HAS LITTLE INCENTIVE TO STINT ON HIS COST ESTIMATES. 
SINCE HE PLANS TO OBTAIN THE SUBCONTRACT WITHOUT REGARD TO THE ECONOMIC
MERITS OF HIS PROPOSAL, HE WILL BE TEMPTED TO INFLATE THAT PROPOSAL BY
MORE THAN THE AMOUNT OF THE KICKBACK.  AND EVEN IF THE GOVERNMENT COULD
ISOLATE AND RECOVER THE INFLATION ATTRIBUTABLE TO THE KICKBACK, IT
WOULD STILL BE SADDLED WITH A SUBCONTRACTOR WHO, HAVING OBTAINED THE
JOB OTHER THAN ON MERIT, IS PERHAPS ENTIRELY UNRELIABLE IN OTHER WAYS. 
THIS UNRELIABILITY IN TURN UNDERMINES THE SECURITY OF THE PRIME
CONTRACTOR'S PERFORMANCE - A RESULT WHICH THE PUBLIC CANNOT TOLERATE,
ESPECIALLY WHERE, AS HERE, IMPORTANT DEFENSE CONTRACTS ARE INVOLVED. 

                                       III. 

IN UNITED STATES V. MISSISSIPPI VALLEY CO., 364 U.S. 520, 563, THE
COURT RECOGNIZED THAT "A STATUTE FREQUENTLY IMPLIES THAT A CONTRACT IS
NOT TO BE ENFORCED WHEN IT ARISES OUT OF CIRCUMSTANCES THAT WOULD LEAD
ENFORCEMENT TO OFFEND THE ESSENTIAL PURPOSE OF THE ENACTMENT."  THE
COURT THERE APPROVED THE CANCELLATION OF A GOVERNMENT CONTRACT FOR
VIOLATION OF THE CONFLICT-OF-INTEREST STATUTE ON THE GROUND THAT "THE
SANCTION OF NONENFORCEMENT IS CONSISTENT WITH AND ESSENTIAL TO
EFFECTUATING THE PUBLIC POLICY EMBODIED IN" THE STATUTE.  IBID.  WE
THINK THE SAME THING CAN BE SAID ABOUT CANCELLATION HERE. 

THE COURT OF CLAIMS, IN HOLDING THAT THE ANTI-KICKBACK ACT DOES NOT
AUTHORIZE GOVERNMENT CANCELLATION BECAUSE OF ITS VIOLATION,
DISTINGUISHED MISSISSIPPI VALLEY CO. ON THE GROUND THAT THE ANTI
KICKBACK ACT, UNLIKE THE CONFLICT-OF-INTEREST STATUTE, PROVIDES A CIVIL
AS WELL AS A CRIMINAL REMEDY.  BUT WE DO NOT DEEM THE PROVISION OF A
CIVIL REMEDY IN THE ANTI-KICKBACK ACT DECISIVE.  WHEN THERE IS A MERE
CONFLICT OF INTEREST, NO CONCRETE MONETARY REWARDS MAY HAVE BEEN
RECEIVED OR PAID WHICH THE GOVERNMENT CAN RECOVER IN A CIVIL ACTION. 
BUT WHERE THERE IS COMMERCIAL BRIBERY IN THE FORM OF A KICKBACK, THERE
IS SOMETHING SPECIFIC WHICH THE GOVERNMENT CAN RECOVER, AND HENCE IT
WAS QUITE NATURAL FOR CONGRESS TO PROVIDE THIS EXPRESS REMEDY.  THERE
IS ABSOLUTELY NO INDICATION IN THE LEGISLATIVE HISTORY OF THE ANTI
KICKBACK ACT THAT CONGRESS, IN PROVIDING A CIVIL REMEDY FOR A MORE
TANGIBLE EVIL, INTENDED TO PRECLUDE OTHER CIVIL SANCTIONS NECESSARY TO
EFFECTUATE THE PURPOSE OF THE ACT. 

THERE IS LIKEWISE NO MERIT TO THE COURT OF CLAIMS' DISTINCTION OF THE
MISSISSIPPI VALLEY CO. CASE ON THE GROUND THAT THERE THE CRIMINAL
PROVISION OF THE CONFLICT-OF-INTEREST STATUTE WAS VIOLATED WHEREAS HERE
THE KICKBACK CONSPIRATORS WERE ACQUITTED OF VIOLATING THE ANTI-KICKBACK
ACT AS IT EXISTED WHEN THE KICKBACKS OCCURRED, PRIOR TO 1960.  AS WE
HAVE SEEN, ACME'S EMPLOYEES WERE ACQUITTED ON THE TECHNICAL GROUND THAT
ACME'S PRIME CONTRACT WAS NOT A "COST REIMBURSABLE" CONTRACT TO WHICH
THE ACT THEN EXPRESSLY APPLIED.  IT IS UNNECESSARY FOR US TO DECIDE
WHETHER THIS HOLDING WAS CORRECT.  (FN7)  FOR WHETHER THE KICKBACKS
HERE CONTRAVENED THE NARROW LETTER OF THE CRIMINAL LAW, STRICTLY
CONSTRUED, THEY CLEARLY WERE VIOLATIVE OF THE PUBLIC POLICY AGAINST
KICKBACKS FIRST EXPRESSED BY CONGRESS IN 1946.  IF CONGRESS THEN
LIMITED THE REACH OF THE ACT TO COST REIMBURSABLE CONTRACTS, IT WAS
ONLY BECAUSE OTHER TYPES OF NEGOTIATED CONTRACTS WERE RARELY IN USE
THEN.  THOUGH THE RECENT EXTENSIVE USE OF OTHER FORMS OF NEGOTIATED
CONTRACTS LED CONGRESS IN 1960 TO AMEND THE ACT TO COVER CLEARLY THESE
TYPES OF CONTRACTS AND TO CLOSE THE TECHNICAL LOOPHOLE OPENED BY THE
ACQUITTAL OF ACME'S EMPLOYEES, THE CONGRESSIONAL POLICY AGAINST ALL
KICKBACKS WAS NOT CHANGED.  CONGRESS MERELY REITERATED ITS RECOGNITION
OF THE EVIL AND SOUGHT TO CORRECT THE LETTER OF THE LAW TO EFFECTUATE
ITS LONG-STANDING POLICY.  IN MAKING THE CIVIL REMEDY OF THE 1960 ACT
RETROACTIVE, CONGRESS CLEARLY INDICATED THAT THERE HAD BEEN NO BASIC
CHANGE IN THE PUBLIC POLICY AGAINST KICKBACKS.    THIS PUBLIC POLICY
REQUIRES THAT THE UNITED STATES BE ABLE TO RID ITSELF OF A PRIME
CONTRACT TAINTED BY KICKBACKS.  THOUGH THE KICKBACKS DID NOT TAKE PLACE
UNTIL AFTER THE PRIME CONTRACT WAS AWARDED TO ACME, THE KICKBACK
ARRANGEMENTS EXISTED EITHER AT THE TIME THE PRIME CONTRACT WAS AWARDED
OR SHORTLY THEREAFTER, AND AT LEAST ONE OF THE KICKBACKING
SUBCONTRACTORS ACTUALLY PARTICIPATED IN THE NEGOTIATION OF THE PRIME
CONTRACT.  THESE CIRCUMSTANCES, AS WELL AS THE PRICE REDETERMINATION
FEATURE OF THE PRIME CONTRACT, PRODUCED A GREAT LIKELIHOOD THAT THE
COST OF THE PRIME CONTRACT TO THE GOVERNMENT AND THE RELIABILITY OF
ACME'S PERFORMANCE UNDER IT WOULD BE DIRECTLY AFFECTED BY THE FACT THAT
THE PRIME CONTRACT WAS TO BE PERFORMED LARGELY THROUGH SUBCONTRACTS
OBTAINED BY KICKBACKS. 

THE COURT OF CLAIMS, IN HOLDING THAT THE ACT DOES NOT AUTHORIZE
GOVERNMENT CANCELLATION BECAUSE OF KICKBACKS, RELIED HEAVILY ON ITS
FINDING THAT NONE OF THE OFFICERS OF ACME WERE AWARE OF THE KICKBACKS. 
BUT AS PREVIOUSLY STATED THOSE OF ACME'S EMPLOYEES AND AGENTS WHO DID
KNOW WERE IN THE UPPER ECHELON OF ITS MANAGERS.  ONE OF THE GUILTY
EMPLOYEES WAS THE GENERAL MANAGER OF ONE OF THE COMPANY'S CHIEF PLANTS
AND THE SON OF ACME'S PRESIDENT, AND THE TWO OTHER KICKBACK RECEIVERS
WERE IN CHARGE OF OPERATIONS, SALES, AND GOVERNMENT CONTRACTS.  THEY
WERE THE KIND OF COMPANY PERSONNEL FOR WHOSE CONDUCT A CORPORATION IS
GENERALLY HELD RESPONSIBLE.  CF. GLEASON V. SEABOARD AIR LINE R. CO.,
278 U.S. 349.  SINCE ACME SELECTED THOSE AGENTS TO CARRY ON ITS
BUSINESS IN OBTAINING AND PERFORMING GOVERNMENT CONTRACTS, THERE IS NO
OBVIOUS REASON WHY THEIR CONDUCT IN THAT FIELD SHOULD NOT BE CONSIDERED
AS ACME'S CONDUCT, PARTICULARLY WHERE IT TOUCHES THE ALL-IMPORTANT
SUBJECT OF KICKBACKS.  AND HERE, AS THIS COURT SAID ABOUT THE CONFLICT
OF-INTEREST STATUTE IN UNITED STATES V. MISSISSIPPI VALLEY CO., SUPRA,
AT 565, IT IS APPROPRIATE TO SAY THAT IT IS THE "INHERENT DIFFICULTY IN
DETECTING CORRUPTION WHICH REQUIRES THAT CONTRACTS MADE IN VIOLATION OF
...  THE ANTI-KICKBACK ACT BE HELD UNENFORCEABLE, EVEN THOUGH THE
PARTY SEEKING ENFORCEMENT OBSTENSIBLY APPEARS ENTIRELY INNOCENT." 

THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED WITH DIRECTIONS TO
SUSTAIN THE UNITED STATES' RIGHT TO CANCEL THE PRIME CONTRACT.  IT IS
SO ORDERED. 

FN1  SECTION 1 OF THE ANTI-KICKBACK ACT, 60 STAT. 37, AS AMENDED, 74
STAT. 740, 41 U.S.C.  SEC 51, PROVIDES IN PERTINENT PART: 

"THAT THE PAYMENT OF ANY FEE, COMMISSION, OR COMPENSATION OF ANY KIND
OR THE GRANTING OF ANY GIFT OR GRATUITY OF ANY KIND, EITHER DIRECTLY OR
INDIRECTLY, BY OR ON BEHALF OF A SUBCONTRACTOR,  ... (1) TO ANY
OFFICER, PARTNER, EMPLOYEE, OR AGENT OF A PRIME CONTRACTOR HOLDING A
NEGOTIATED CONTRACT ENTERED INTO BY ANY DEPARTMENT, AGENCY, OR
ESTABLISHMENT OF THE UNITED STATES FOR THE FURNISHING OF SUPPLIES,
MATERIALS, EQUIPMENT OR SERVICES OF ANY KIND WHATSOEVER  ...  AS AN
INDUCEMENT FOR THE AWARD OF A SUBCONTRACT OR ORDER FROM THE PRIME
CONTRACTOR  ...  IS HEREBY PROHIBITED.  THE AMOUNT OF ANY SUCH FEE,
COMMISSION, OR COMPENSATION OR THE COST OR EXPENSE OF ANY SUCH GRATUITY
OR GIFT, WHETHER HERETOFORE OR HEREAFTER PAID OR INCURRED BY THE
SUBCONTRACTOR, SHALL NOT BE CHARGED, EITHER DIRECTLY OR INDIRECTLY, AS
A PART OF THE CONTRACT PRICE CHARGED BY THE SUBCONTRACTOR TO THE PRIME
CONTRACTOR  ...  .  THE AMOUNT OF ANY SUCH FEE, COST, OR EXPENSE SHALL
BE RECOVERABLE ON BEHALF OF THE UNITED STATES FROM THE SUBCONTRACTOR OR
THE RECIPIENT THEREOF BY SETOFF ...  OR BY AN ACTION IN AN APPROPRIATE
COURT OF THE UNITED STATES  ...  ." 


"ANY PERSON WHO SHALL KNOWINGLY, DIRECTLY OR INDIRECTLY, MAKE OR
RECEIVE ANY SUCH PROHIBITED PAYMENT SHALL BE FINED NOT MORE THAN
$10,000 OR BE IMPRISONED FOR NOT MORE THAN TWO YEARS, OR BOTH." 

FN2  SHORTLY AFTER THE PRIME CONTRACT WAS AWARDED, TWO OTHER
COMPANIES PAID TUCKER'S FATHER AND NORRIS' ASSISTANT KICKBACKS FOR
OBTAINING SUBCONTRACTS FROM ACME.  THIS MADE A TOTAL OF FIVE
SUBCONTRACTS OBTAINED THROUGH KICKBACKS. 

FN3  THIS WAS THE ORIGINAL ANTI-KICKBACK ACT PASSED BY CONGRESS IN
1946.  IT EXPRESSLY PROHIBITED KICKBACKS ONLY TO EMPLOYEES OF "A PRIME
CONTRACTOR HOLDING A CONTRACT  ...  ON A COST-PLUS-A-FIXED-FEE OR OTHER
COST REIMBURSABLE BASIS  ...  ." 

FN4  SEE GENERALLY H.R. REP. NO. 1880, S. REP. NO. 1585, 86TH CONG.,
2D SESS.  THE ACT, AS AMENDED, IS SET OUT IN PART IN NOTE 1, SUPRA. 

FN5  THIS IS PRECISELY WHAT HAPPENED HERE BEFORE THE GOVERNMENT
CANCELED ACME'S CONTRACT.  ACME IN 1953 SUBMITTED COST DATA FOR PRICE
REDETERMINATION PURPOSES THAT INCLUDED THE CHARGES OF THE FIVE
SUBCONTRACTORS WHICH HAD PAID KICKBACKS TO ACME'S EMPLOYEES.  THESE
SUBCONTRACTING CHARGES IN TURN INCLUDED THE AMOUNTS PAID AS KICKBACKS. 
HAD THE KICKBACKS NOT BEEN DISCOVERED AND THE CONTRACT NOT BEEN
CANCELED, ACME WOULD HAVE BEEN ABLE TO USE THESE COSTS TO RENEGOTIATE
THE PRICE PER RIFLE FROM $337 TO $385.  SUCH PRICE REDETERMINATION
COULD HAVE COST THE GOVERNMENT ABOUT $132,000 MORE ON THE ENTIRE
CONTRACT. 

FN6 SEE S. REP. NO. 1585, SUPRA, N. 4, AT 3. 

FN7  SEE UNITED STATES V. BARNARD, 255 F.2D 583, CERT. DENIED, 358
U.S. 919, HOLDING THAT A FIXED-PRICE CONTRACT WITH PROVISION FOR
UNLIMITED PRICE REDETERMINATION IS A "COST REIMBURSABLE" CONTRACT. 
..END :









UNITED STATES V. DEMKO 385 U.S. 149 


NO. 76.  ARGUED NOVEMBER 8, 1966.  - DECIDED DECEMBER 5, 1966.  - 350
F.2D 698, REVERSED. 


RESPONDENT, A FEDERAL PRISONER, WAS INJURED WHILE PERFORMING AN
ASSIGNED PRISON TASK.  HE FILED CLAIM FOR COMPENSATION BENEFITS UNDER
18 U.S.C. SEC 4126, AND RECEIVED AN AWARD WHICH WAS TO BE PAID MONTHLY
UPON DISCHARGE AND TO CONTINUE WHILE HE WAS DISABLED.  HE THEN FILED
SUIT UNDER THE FEDERAL TORT CLAIMS ACT.  THE GOVERNMENT'S DEFENSE THAT
THE SEC 4126 REMEDY WAS EXCLUSIVE WAS REJECTED BY THE DISTRICT COURT,
AND THE COURT OF APPEALS AFFIRMED.  HELD:  THE COMPENSATION SYSTEM
PROVIDED IN 18 U.S.C. SEC 4126 REASONABLY AND FAIRLY COVERS FEDERAL
PRISONERS WHO ARE INJURED IN PRISON EMPLOYMENT AND IS THE EXCLUSIVE
REMEDY TO PROTECT THAT GROUP.  UNITED STATES V. MUNIZ, 374 U.S. 150,
DISTINGUISHED.  PP.  151-154. 

UNITED STATES V. DEMKO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT DEMKO, A FEDERAL PRISONER, WAS SERIOUSLY INJURED IN
1962 IN THE PERFORMANCE OF AN ASSIGNED PRISON TASK IN A FEDERAL
PENITENTIARY.  SHORTLY AFTERWARD HE FILED A CLAIM FOR COMPENSATION
BENEFITS UNDER 18 U.S.C. SEC 4126.  THE LAW, FIRST ENACTED BY CONGRESS
IN 1934, AUTHORIZED THE FEDERAL PRISON INDUSTRIES, INC., A FEDERAL
CORPORATION, TO USE ITS FUNDS "IN PAYING, UNDER RULES AND REGULATIONS
PROMULGATED BY THE ATTORNEY GENERAL, COMPENSATION  ...  TO INMATES OR
THEIR DEPENDENTS FOR INJURIES SUFFERED IN ANY INDUSTRY."  (FN1)  UNDER
THAT LAW AND REGULATIONS PROMULGATED UNDER IT, RESPONDENT WAS AWARDED
$180 PER MONTH WHICH WAS TO START ON DISCHARGE FROM PRISON AND CONTINUE
SO LONG AS DISABILITY CONTINUED.  (FN2)  AFTER WINNING THIS
COMPENSATION AWARD, RESPONDENT BROUGHT THIS ACTION AGAINST THE UNITED
STATES IN THE FEDERAL DISTRICT COURT UNDER THE FEDERAL TORT CLAIMS ACT,
(FN3)  ALLEGING THAT HIS INJURY WAS DUE TO THE GOVERNMENT'S NEGLIGENCE
FOR WHICH HE WAS ENTITLED TO RECOVER ADDITIONAL DAMAGES UNDER THE ACT. 
THE UNITED STATES DEFENDED ON THE SINGLE GROUND THAT RESPONDENT'S RIGHT
TO RECOVER COMPENSATION UNDER 18 U.S.C. SEC 4126 WAS HIS EXCLUSIVE
REMEDY AGAINST THE GOVERNMENT BARRING HIM FROM ANY SUIT UNDER THE
FEDERAL TORT CLAIMS ACT.  THE DISTRICT COURT, HOLDING THAT COMPENSATION
UNDER 18 U.S.C. SEC 4126 WAS NOT HIS EXCLUSIVE REMEDY, REJECTED THIS
DEFENSE AND ACCORDINGLY ENTERED A JUDGMENT FOR THE RESPONDENT AGAINST
THE UNITED STATES FOR TORT CLAIM DAMAGES BASED ON STIPULATED FACTS. 
THE COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED.  350 F.2D 698. 
SUBSEQUENTLY THE COURT OF APPEALS FOR THE SECOND CIRCUIT, IN GRANADE V.
UNITED STATES, 356 F.2D 837, REACHED PRECISELY THE OPPOSITE RESULT,
HOLDING THAT A PRISON INMATE, INJURED IN PRISON EMPLOYMENT AND ELIGIBLE
FOR COMPENSATION UNDER 18 U.S.C. SEC 4126, IS PRECLUDED FROM SUING
UNDER THE FEDERAL TORT CLAIMS ACT.  TO RESOLVE THIS CONFLICT WE GRANTED
CERTIORARI.  383 U.S. 966. 

HISTORICALLY, WORKMEN'S COMPENSATION STATUTES WERE THE OFFSPRING OF A
DESIRE TO GIVE INJURED WORKERS A QUICKER AND MORE CERTAIN RECOVERY THAN
CAN BE OBTAINED FROM TORT SUITS BASED ON NEGLIGENCE AND SUBJECT TO
COMMONLAW DEFENSES TO SUCH SUITS.  THUS COMPENSATION LAWS ARE
PRACTICALLY ALWAYS THOUGHT OF AS SUBSTITUTES FOR, NOT SUPPLEMENTS TO,
COMMON-LAW TORT ACTIONS.  A SERIES OF COMPARATIVELY RECENT CASES IN
THIS COURT HAS RECOGNIZED THIS HISTORIC TRUTH AND RULED ACCORDINGLY. 
JOHANSEN V. UNITED STATES, 343 U.S. 427, AND PATTERSON V. UNITED
STATES, 359 U.S. 495, FOR INSTANCE, ARE TYPICAL OF THE RECOGNITION BY
THIS COURT THAT THE RIGHT OF RECOVERY GRANTED GROUPS OF WORKERS COVERED
BY SUCH COMPENSATION LAWS IS EXCLUSIVE.  SUCH RULINGS OF THIS COURT
HAVE ESTABLISHED AS A GENERAL RULE THE EXCLUSIVITY OF REMEDY UNDER SUCH
COMPENSATION LAWS.  (FN4)  IN JOHANSEN V. UNITED STATES, SUPRA, AT 441,
THIS COURT STATED THAT WHERE "THE GOVERNMENT HAS CREATED A
COMPREHENSIVE SYSTEM TO AWARD PAYMENTS FOR INJURIES, IT SHOULD NOT BE
HELD TO HAVE MADE EXCEPTIONS TO THAT SYSTEM WITHOUT SPECIFIC
LEGISLATION TO THAT EFFECT."  LATER IN PATTERSON V. UNITED STATES,
SUPRA, AT 496, THIS COURT EMPHATICALLY REFUSED TO ABANDON THE JOHANSEN
RULING, CALLING ATTENTION TO THE FACT THAT CONGRESS BY SPECIFIC STATUTE
COULD CHANGE THE JOHANSEN "POLICY AT ANY TIME."  CONSEQUENTLY WE DECIDE
THIS CASE ON THE JOHANSEN PRINCIPLE THAT, WHERE THERE IS A COMPENSATION
STATUTE THAT REASONABLY AND FAIRLY COVERS A PARTICULAR GROUP OF
WORKERS, IT PRESUMABLY IS THE EXCLUSIVE REMEDY TO PROTECT THAT GROUP. 

THERE IS NO INDICATION OF ANY CONGRESSIONAL PURPOSE TO MAKE THE
COMPENSATION STATUTE IN 18 U.S.C. SEC 4126 NONEXCLUSIVE.  IT WAS
ENACTED IN 1934, AND PROVIDED FOR INJURED FEDERAL PRISONERS THE ONLY
CHANCE THEY HAD TO RECOVER DAMAGES OF ANY KIND.  ITS ENACTMENT WAS 12
YEARS PRIOR TO THE 1946 FEDERAL TORT CLAIMS ACT.  THERE IS NOTHING IN
THE LEGISLATIVE HISTORY OF THIS LATTER ACT WHICH POINTED TO ANY PURPOSE
TO ADD TORT CLAIM RECOVERY FOR FEDERAL PRISONERS AFTER THEY HAD ALREADY
BEEN PROTECTED BY 18 U.S.C. SEC 4126.  INDEED TO HOLD THAT THE 1946
FEDERAL TORT CLAIMS ACT WAS DESIGNED TO HAVE SUCH A SUPPLEMENTAL EFFECT
WOULD BE TO HOLD THAT INJURED PRISONERS ARE GIVEN GREATER PROTECTION
THAN ALL OTHER GOVERNMENT EMPLOYEES WHO ARE PROTECTED EXCLUSIVELY BY
THE FEDERAL EMPLOYEES' COMPENSATION ACT,  (FN5)  A CONGRESSIONAL
PURPOSE NOT EASY TO INFER. 

THE COURT BELOW REFUSED TO ACCEPT THE PRISON COMPENSATION LAW AS AN
EXCLUSIVE REMEDY BECAUSE IT WAS DEEMED NOT COMPREHENSIVE ENOUGH.  WE
DISAGREE.  THAT LAW, AS SHOWN BY ITS REGULATIONS, ITS COVERAGE AND THE
AMOUNT OF ITS PAYMENTS TO THE INJURED AND THEIR DEPENDENTS, COMPARES
FAVORABLY WITH COMPENSATION LAWS ALL OVER THE COUNTRY.  (FN6)  WHILE
THERE ARE DIFFERENCES IN THE WAY IT PROTECTS ITS BENEFICIARIES, THESE
ARE DUE IN THE MAIN TO THE DIFFERING CIRCUMSTANCES OF PRISONERS AND
NONPRISONERS.  THAT LAW, AS THE SOLICITOR GENERAL POINTS OUT, OFFERS
FAR MORE LIBERAL PAYMENTS THAN MANY OF THE STATE COMPENSATION LAWS, AND
ITS STANDARD OF PAYMENTS FOR PRISONERS RESTS ON THE SCHEDULES OF
PAYMENT OF THE FEDERAL EMPLOYEES' COMPENSATION ACT WHICH CONGRESS HAS
PROVIDED TO TAKE CARE OF PRACTICALLY ALL GOVERNMENT EMPLOYEES.  THIS
PARTICULAR FEDERAL COMPENSATION LAW, CREATED TO MEET, IN THE ACCEPTED
FASHION OF SUCH LAWS, THE SPECIAL NEED OF A CLASS OF PRISONERS, AND NOW
FOR MORE THAN 30 YEARS FUNCTIONED TO THE SATISFACTION OF CONGRESS,
EXCEPT AS CONGRESS BROADENED ITS COVERAGE IN 1961.  (FN7)  UNTIL
CONGRESS DECIDES DIFFERENTLY WE ACCEPT THE PRISON COMPENSATION LAW AS
AN ADEQUATE SUBSTITUTE FOR A SYSTEM OF RECOVERY BY COMMON-LAW TORTS. 

THE COURT BELOW WAS OF THE OPINION THAT ITS HOLDING WAS REQUIRED BY
UNITED STATES V. MUNIZ, 374 U.S. 150.  WE THINK NOT.  WHETHER A
PRISONER COVERED BY THE PRISON COMPENSATION LAW COULD ALSO RECOVER
UNDER THE FEDERAL TORT CLAIMS ACT WAS NEITHER AN ISSUE IN NOR DECIDED
BY MUNIZ.  AS OUR OPINION IN MUNIZ NOTED, NEITHER OF THE TWO PRISONERS
THERE WAS COVERED BY THE PRISON COMPENSATION LAW.  WHAT WE DECIDED IN
MUNIZ WAS THAT THE TWO PRISONERS THERE INVOLVED, WHO WERE NOT PROTECTED
BY THE PRISON COMPENSATION LAW, WERE NOT BARRED FROM SEEKING RELIEF
UNDER THE FEDERAL TORT CLAIMS ACT.  HOWEVER, THAT IS NOT THIS CASE. 
THE DECISION IN MUNIZ COULD NOT POSSIBLY CONTROL OUR DECISION HERE
BECAUSE RESPONDENT IS PROTECTED BY THE PRISON COMPENSATION LAW.  (FN8)
ALL OTHER ARGUMENTS OF RESPONDENT HAVE BEEN CONSIDERED BUT WE FIND NONE
SUFFICIENT TO JUSTIFY RECOVERY UNDER THE FEDERAL TORT CLAIMS ACT.  THE
JUDGMENTS OF THE COURTS BELOW ARE REVERSED WITH DIRECTION TO SUSTAIN
THE GOVERNMENT'S DEFENSE THAT RESPONDENT'S RECOVERY UNDER THE PRISON
COMPENSATION LAW IS EXCLUSIVE.  REVERSED. 

FN1  ACT OF JUNE 23, 1934, C. 736, SEC 4, 48 STAT. 1211.  THE FEDERAL
PRISON INDUSTRIES WAS ESTABLISHED AS A DISTRICT OF COLUMBIA CORPORATION
AND A "GOVERNMENTAL BODY" TO EXPAND AN INDUSTRIAL TRAINING AND
REHABILITATION PROGRAM FOR PRISONERS INITIATED BY THE ACT OF MAY 27,
1930, C. 340, 46 STAT. 391. 

FN2  ON AUGUST 1, 1966, FEDERAL PRISON INDUSTRIES, INC., RAISED
RESPONDENT'S AWARD TO $245.31 PER MONTH UNDER AUTHORITY OF THE ACT OF
JULY 4, 1966, 80 STAT. 252, AMENDING THE FEDERAL EMPLOYEES'
COMPENSATION ACT, 39 STAT. 742, AS AMENDED, 5 U.S.C. SEC 751 ET SEQ. 

FN3  28 U.S.C. SECS 1346(B), 2671 ET SEQ. 

FN4  THE LOWER FEDERAL COURTS HAVE HELD, UNIFORMLY, THAT PERSONS FOR
WHOM THE GOVERNMENT HAS SUPPLIED AN ADMINISTRATIVE COMPENSATION REMEDY
ARE PRECLUDED FROM SEEKING RECOVERY AGAINST THE UNITED STATES FOR
INJURIES RECEIVED IN THE COURSE OF THEIR WORK UNDER THE FEDERAL TORT
CLAIMS ACT, THE JONES ACT, THE SUITS IN ADMIRALTY ACT, OR THE PUBLIC
VESSELS ACT.  JARVIS V. UNITED STATES, 342 F.2D 799, CERT. DENIED, 382
U.S. 831; RIZZUTO V. UNITED STATES, 298 F.2D 748; LOWE V. UNITED
STATES, 292 F. D 501; SOMMA V. UNITED STATES, 283 F.2D 149; MILLS V.
PANAMA CANAL CO., 272 F. D 37, CERT. DENIED, 362 U.S. 961; UNITED
STATES V. FORFARI, 268 F.2D 29, CERT. DENIED, 361 U.S. 902; BALANCIO V.
UNITED STATES, 267 F.2D 135, CERT. DENIED, 361 U.S. 875; AUBREY V.
UNITED STATES, 103 U.S. APP. D.C. 65, 254 F.2D 768; UNITED STATES V.
FIRTH, 207 F. D 665; LEWIS V. UNITED STATES, 89 U.S. APP. D.C. 21, 190
F.2D 22, CERT. DENIED, 342 U.S. 869.  SEE ALSO GRADALL V. UNITED
STATES, 161 CT. CL. 714, 329 F.2D 960, 963; DENENBERG V. UNITED STATES,
158 CT. CL. 401, 305 F.2D 378, 379-380. 

FN5  39 STAT. 742, AS AMENDED, 5 U.S.C. SEC 751 ET SEQ. 

FN6  THE REGULATIONS GOVERNING AWARDS OF WORKMEN'S COMPENSATION TO
FEDERAL PRISONERS APPEAR AT 28 CFR SECS 301.1-301.10 (1965 REV.). 

FN7  IN 1961 CONGRESS EXPANDED THE COVERAGE OF 18 U.S.C. SEC 4126 TO
INCLUDE NOT ONLY PRISONERS' INJURIES SUFFERED IN "ANY INDUSTRY" BUT
ALSO IN "ANY WORK ACTIVITY IN CONNECTION WITH THE MAINTENANCE OR
OPERATION OF THE INSTITUTION WHERE CONFINED."  ACT OF SEPTEMBER 26,
1961, 75 STAT. 681, 18 U.S.C. SEC 4126. 

FN8  IN THIS CASE, THE GOVERNMENT STIPULATED THAT RESPONDENT'S "RIGHT
TO COMPENSATION PURSUANT TO 18 U.S.C. SEC 4126 IS NOT AFFECTED BY THIS
SUIT.  REGARDLESS OF THE OUTCOME OF THIS SUIT RESPONDENT WILL HAVE THE
SAME RIGHT TO COMPENSATION AS IF SUIT HAD NOT BEEN INSTITUTED." 

MR. JUSTICE WHITE, WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

UNITED STATES V. MUNIZ, 374 U.S. 150, HELD THAT ACTION UNDER THE
FEDERAL TORT CLAIMS ACT WAS AVAILABLE TO FEDERAL PRISONERS INJURED BY
THE NEGLIGENCE OF GOVERNMENT EMPLOYEES.  GIVEN THAT CASE, THE
RESPONDENT, WHO WAS INJURED BY GOVERNMENT NEGLIGENCE WHILE A FEDERAL
PRISONER, IS ENTITLED TO RELIEF UNLESS THE COMPENSATION AVAILABLE TO
HIM UNDER 18 U.S.C.  SEC 4126 IS HIS EXCLUSIVE REMEDY, A PROPOSITION
WHICH RESTS ON THE INTENT OF CONGRESS TO GIVE SEC 4126 THAT EFFECT. 
CERTAINLY THE SECTION DOES NOT IN SO MANY WORDS EXCLUDE OTHER REMEDIES;
AND IN MY VIEW EXCLUSITIVITY SHOULD NOT BE INFERRED, FOR SEC 4126 IS
NEITHER COMPREHENSIVE NOR CERTAIN AND DOES NOT MEET THE TESTS OF
JOHANSEN V. UNITED STATES, 343 U.S. 427, AND OF PATTERSON V. UNITED
STATES, 359 U.S. 495.  SECTION 4126 PERMITS, BUT DOES NOT REQUIRE, THE
APPLICATION OF PRISON INDUSTRIES INCOME TO SOME FORM OF COMPENSATION
SCHEME.  THE SCHEME ADOPTED BY THE ATTORNEY GENERAL APPLIES TO ONLY A
LIMITED CLASS OF PRISONERS - THOSE DOING PRISON INDUSTRY, MAINTANANCE,
OR SIMILAR WORK.  A PRISONER INJURED IN PRISON INDUSTRY WORK GETS NO
COMPENSATION UNDER THE PLAN UNTIL HE IS RELEASED AND NONE THEN IF HE
HAS COMPLETELY RECOVERED.  FURTHERMORE, HIS PAYMENTS STOP IF HE IS
REINCARCERATED.  IF HE DIES WHILE IN PRISON, HE GETS NOTHING AT ALL. 
ON THE OTHER HAND, IF A PRISONER IS INJURED BY THE NEGLIGENCE OF A
PRISON GUARD AND IS NOT COVERED BY THE SEC 4126 PLAN, HE MAY SUE AND
RECOVER UNDER THE TORT CLAIMS ACT.  RECOVERY IS HIS AND WHEN HE GETS
IT, HE KEEPS IT WHETHER OR NOT HE DIES BEFORE HIS PRISON TERM EXPIRES
AND WHETHER OR NOT HE IS RELEASED AND THEN AGAIN IMPRISONED. 

ESSENTIALLY, I AGREE WITH JUDGE FREEDMAN, WHO WROTE THE OPINION FOR
THE COURT OF APPEALS FOR THE THIRD CIRCUIT.  THE FOLLOWING IS A PASSAGE
FROM HIS OPINION: 

"CONGRESS IN ADOPTING THE AMENDMENT OF 1961 TO SEC 4126 GAVE NO
EXPRESS INDICATION THAT THE COMPENSATION AUTHORIZED BY IT WAS TO BE
EXCLUSIVE, AND ITS PROVISIONS PRECLUDE THE IMPUTATION OF ANY SUCH
INTENTION.  THE COMPENSATION SCHEME FOR PRISONERS IS VERY DIFFERENT
FROM THE COMPENSATION SYSTEM FOR SERVICEMEN WHICH WAS DESCRIBED IN
FERES V. UNITED STATES AS BEING 'SIMPLE, CERTAIN, AND UNIFORM' (340
U.S., AT 144  ...  ) AT THE TIME THE FEDERAL TORT CLAIMS ACT WAS PASSED
IN 1946.  IT IS ALSO VASTLY DIFFERENT FROM THE RIGHT TO COMPENSATION
ENJOYED BY GOVERNMENT EMPLOYEES UNDER THE FEDERAL EMPLOYEES'
COMPENSATION ACT.  IT IS PERMISSIVE RATHER THAN MANDATORY.  THE AMOUNT
OF THE AWARD RESTS ENTIRELY WITHIN THE DISCRETION OF THE ATTORNEY
GENERAL, BUT MAY NOT UNDER THE STATUTE EXCEED THE AMOUNT PAYABLE UNDER
THE FEDERAL EMPLOYEES' COMPENSATION ACT.  COMPENSATION IS PAID ONLY
UPON THE INMATE'S RELEASE FROM PRISON AND WILL BE DENIED IF FULL
RECOVERY OCCURS WHILE HE IS IN CUSTODY AND NO SIGNIFICANT DISABILITY
REMAINS AFTER HIS RELEASE.  THERE IS NO PROVISION FOR THE CLAIMANT TO
HAVE A PERSONAL PHYSICIAN PRESENT AT HIS PHYSICAL EXAMINATION, AND
THERE IS NO OPPORTUNITY FOR ADMINISTRATIVE REVIEW.  FINALLY,
COMPENSATION, EVEN WHEN GRANTED, DOES NOT BECOME A VESTED RIGHT, BUT IS
TO BE PAID ONLY SO LONG AS THE CLAIMANT CONDUCTS HIMSELF IN A LAWFUL
MANNER AND MAY BE IMMEDIATELY SUSPENDED UPON CONVICTION OF ANY CRIME,
OR UPON INCARCERTATION IN A PENAL INSTITUTION. 

"WHAT EMERGES ON EXAMINATION, THEREFORE, IS A SEVERLY RESTRICTIVE
SYSTEM OF COMPENSATION PERMEATED AT ALL LEVELS BY THE VERY PRISON
CONTROL AND DOMINION WHICH WAS AT THE ORIGIN OF THE INMATE'S INJURY. 
THIS DISCRETIONARY AND SKETCHY SYSTEM OF COMPENSATION, WHICH WOULD NOT
EVEN HAVE COVERED THE PRESENT PLAINTIFF IN 1946, MAY NOT BE DEEMED THE
EQUIVALENT OF COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION
ACT OF 1916.  NOWHERE CAN THERE BE FOUND ANY INDICATION THAT CONGRESS
INTENDED THAT IT SHOULD SERVE TO EXCLUDE PRISONERS FROM THE BROAD AND
SWEEPING POLICY EMBODIED IN THE FEDERAL TORT CLAIMS ACT."  350 F.2D
698, 700-701.  (FOOTNOTES OMITTED).    NOR DOES RESPONDENT CLAIM THE
RIGHT TO CUMULATE HIS REMEDIES; HE CONCEDES THAT RECOVERY UNDER THE
COMPENSATION SCHEME MUST BE OFFSET AGAINST ANY NEGLIGENCE AWARD HE
WOULD OTHERWISE RECEIVE. 

RESPECTFULLY, I DISSENT. 
..END :






TRANSPORTATION UNION V. U.P.R. CO. 385 U.S. 157 


NO. 28.  ARGUED OCTOBER 19, 1966.  - DECIDED DECEMBER 5, 1966.  - 349
F.2D 408, AFFIRMED AND REMANDED. 


CLAIMING THAT UNDER ITS COLLECTIVE BARGAINING AGREEMENT ITS MEMBERS
WERE ENTITLED TO AUTOMATED JOBS WHICH RESPONDENT RAILROAD HAD ASSIGNED
TO THE CLERKS' UNION, PETITIONER, THE TELEGRAPHERS' UNION, COMPLAINED
TO THE RAILROAD ADJUSTMENT BOARD.  THE CLERKS' UNION, GIVEN NOTICE OF
THE PROCEEDING, DECLINED TO PARTICIPATE THOUGH MANIFESTING READINESS TO
FILE A LIKE PROCEEDING SHOULD ITS MEMBERS' JOBS BE THREATENED.  WITHOUT
CONSIDERING THE RAILROAD'S LIABILITY UNDER ITS CONTRACT WITH THE
CLERKS, THE BOARD HELD THE TELEGRAPHERS ENTITLED TO THE JOBS AND
ORDERED THE RAILROAD TO PAY THEM.  THE TELEGRAPHERS BROUGHT THIS ACTION
IN DISTRICT COURT TO ENFORCE THE AWARD.  HOLDING THAT THE CLERKS' UNION
WAS AN INDISPENSABLE PARTY, THAT COURT DISMISSED THE CASE AND THE COURT
OF APPEALS AFFIRMED.  HELD:  THE RAILROAD ADJUSTMENT BOARD MUST
EXERCISE ITS EXCLUSIVE JURISDICTION TO SETTLE THE ENTIRE WORK
ASSIGNMENT DISPUTE BETWEEN THE COMPETING UNIONS IN ONE PROCEEDING. 
ORDER OF RAILWAY CONDUCTORS V. PITNEY, 326 U.S. 561; SLOCUM V.
DELAWARE, L.&W.R. CO., 339 U.S. 239, FOLLOWED.  PP. 160-166. 

TRANSPORTATION-COMMUNICATION EMPLOYEES UNION V. UNION PACIFIC RAILROAD
CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

TRANSPORTATION-COMMUNICATION EMPLOYEES UNION, THE PETITIONER, IS THE
BARGAINING REPRESENTATIVE OF A GROUP OF RAILROAD EMPLOYEES COMMONLY
KNOWN AS "TELEGRAPHERS."  PRIOR TO 1952 THESE TELEGRAPHERS WERE
COMMONLY ASSIGNED THE DUTY OF SENDING, BY TELEGRAPH, RAILROAD WAY
BILLS, MANIFESTS AND ORDERS PREPARED BY CLERKS, MEMBERS OF THE
BROTHERHOOD OF RAILWAY CLERKS.  IN 1952, HOWEVER, THE RESPONDENT HERE,
UNION PACIFIC RAILROAD COMPANY, INSTALLED IBM MACHINES WHICH RESULTED
IN A RADICAL CHANGE IN THE WORKLOAD OF THE TELEGRAPHERS AND CLERKS. 
WHEN THE CLERICAL WORK PREVIOUSLY DONE BY THE CLERKS IS MANUALLY
PERFORMED ON THE IBM MACHINES, THE MACHINES AUTOMATICALLY PERFORM THE
COMMUNICATIONS FUNCTIONS PREVIOUSLY PERFORMED BY TELEGRAPHERS.  AS A
RESULT, THE RAILROAD'S NEED FOR TELEGRAPHERS WAS PRACTICALLY ELIMINATED
AND OPERATION OF THE IBM MACHINES WAS ASSIGNED TO MEMBERS OF THE
CLERKS' UNION.  THIS CASE ARISES OUT OF THE DISPUTE OVER THE RAILROAD'S
ASSIGNMENT OF THESE JOBS TO THE CLERKS.  THE TELEGRAPHERS' UNION,
CLAIMING THE JOBS FOR ITS MEMBERS UNDER ITS COLLECTIVE BARGAINING
AGREEMENT, PROTESTED THE RAILROAD'S ASSIGNMENT AND, IN DUE COURSE,
REFERRED ITS CLAIM TO THE RAILROAD ADJUSTMENT BOARD AS AUTHORIZED BY
SEC 3 FIRST (I) OF THE RAILWAY LABOR ACT.  (FN1)  NOTICE OF THE
REFERRAL WAS GIVEN TO THE CLERKS' UNION, WHICH, PURSUANT TO AN
UNDERSTANDING WITH THE OTHER LABOR UNIONS, DECLINED TO PARTICIPATE IN
THIS PROCEEDING ON THE GROUND THAT IT HAD NO INTEREST IN THE MATTER BUT
STATED ITS READINESS TO FILE A LIKE PROCEEDING BEFORE THE BOARD TO
PROTECT ITS MEMBERS SHOULD ANY OF THEIR JOBS BE THREATENED.  (FN2)  THE
BOARD THEN HEARD AND DECIDED THE CASE WITHOUT CONSIDERING THE
RAILROAD'S LIABILITY TO THE CLERKS UNDER ITS CONTRACT WITH THEM,
CONCLUDED THAT THE TELEGRAPHERS WERE ENTITLED TO THE JOBS UNDER THEIR
CONTRACT, AND ORDERED THAT THE RAILROAD PAY THE TELEGRAPHERS WHO HAD
BEEN IDLE BECAUSE OF THE ASSIGNMENT OF THE JOBS TO THE CLERKS.  THE
TELEGRAPHERS' UNION THEN BROUGHT THIS ACTION IN A UNITED STATES
DISTRICT COURT TO ENFORCE THE BOARD'S AWARD AS AUTHORIZED BY SEC 3
FIRST (P) OF THE ACT.  THAT COURT DISMISSED THE CASE ON THE GROUND THAT
THE CLERKS' UNION WAS AN INDISPENSABLE PARTY, AND THAT THE
TELEGRAPHERS, THOUGH GIVEN THE OPPORTUNITY, REFUSED TO MAKE IT A
PARTY.  231 F. SUPP.  33.  AFFIRMING THE DISMISSAL, THE COURT OF
APPEALS POINTED OUT THAT THE BOARD HAD FAILED TO CARRY OUT ITS
EXCLUSIVE JURISDICTIONAL RESPONSIBILITY TO DECIDE THE ENTIRE DISPUTE
WITH RELATION TO THE CONFLICTING CLAIMS OF THE TWO UNIONS UNDER THEIR
RESPECTIVE CONTRACTS TO HAVE THE JOBS ASSIGNED TO THEIR MEMBERS.  (FN3)
WE GRANTED CERTIORARI IN ORDER TO SETTLE DOUBTS ABOUT WHETHER THE
ADJUSTMENT BOARD MUST EXERCISE ITS EXCLUSIVE JURISDICTION TO SETTLE
DISPUTES LIKE THIS IN A SINGLE PROCEEDING WITH ALL DISPUTANT UNIONS
PRESENT.  CF. WHITEHOUSE V. ILLINOIS CENT. R. CO., 349 U.S. 366, 371
372.  WE HOLD THAT IT MUST. 

                                   I. 

PETITIONER CONTENDS THAT IT IS ENTIRELY APPROPRIATE FOR THE
ADJUSTMENT BOARD TO RESOLVE DISPUTES OVER WORK ASSIGNMENTS IN A
PROCEEDING IN WHICH ONLY ONE UNION PARTICIPATES AND IN WHICH ONLY THAT
UNION'S CONTRACT WITH THE EMPLOYER IS CONSIDERED.  THIS CONTENTION
RESTS ON THE PREMISE THAT COLLECTIVE BARGAINING AGREEMENTS ARE TO BE
GOVERNED BY THE SAME COMMON-LAW PRINCIPLES WHICH CONTROL PRIVATE
CONTRACTS BETWEEN TWO PRIVATE PARTIES.  ON THIS BASIS IT IS QUITE
NATURALLY ASSUMED THAT A DISPUTE OVER WORK ASSIGNMENTS IS A DISPUTE
BETWEEN AN EMPLOYER AND ONLY ONE UNION.  THUS, IT IS ARGUED THAT EACH
COLLECTIVE BARGAINING AGREEMENT IS A THING APART FROM ALL OTHERS AND
EACH DISPUTE OVER WORK ASSIGNMENTS MUST BE DECIDED ON THE LANGUAGE OF A
SINGLE SUCH AGREEMENT CONSIDERED IN ISOLATION FROM ALL OTHERS. 

WE REJECT THIS LINE OF REASONING.  A COLLECTIVE BARGAINING AGREEMENT
IS NOT AN ORDINARY CONTRACT FOR THE PURCHASE OF GOODS AND SERVICES, NOR
IS IT GOVERNED BY THE SAME OLD COMMON-LAW CONCEPTS WHICH CONTROL SUCH
PRIVATE CONTRACTS.  JOHN WILEY & SONS V. LIVINGSTON, 376 U.S. 543, 550;
CF. STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192.  "  ...  IT IS A
GENERALIZED CODE TO GOVERN A MYRIAD OF CASES WHICH THE DRAFTSMEN CANNOT
WHOLLY ANTICIPATE  ...  .  THE COLLECTIVE AGREEMENT COVERS THE WHOLE
EMPLOYMENT RELATIONSHIP.  IT CALLS INTO BEING A NEW COMMON LAW - THE
COMMON LAW OF A PARTICULAR INDUSTRY OR OF A PARTICULAR PLANT."  UNITED
STEELWORKERS OF AMERICA V. WARRIOR & GULF NAV. CO., 363 U.S.  574, 578
579.  IN ORDER TO INTERPRET SUCH AN AGREEMENT IT IS NECESSARY TO
CONSIDER THE SCOPE OF OTHER RELATED COLLECTIVE BARGAINING AGREEMENTS,
AS WELL AS THE PRACTICE, USAGE AND CUSTOM PERTAINING TO ALL SUCH
AGREEMENTS.  THIS IS PARTICULARLY TRUE WHEN THE AGREEMENT IS RESORTED
TO FOR THE PURPOSE OF SETTLING A JURISDICTIONAL DISPUTE OVER WORK
ASSIGNMENTS. 

THERE ARE TWO KINDS OF THESE JURISDICTIONAL DISPUTES.  BOTH ARE
ESSENTIALLY DISPUTES BETWEEN TWO COMPETING UNIONS, NOT MERELY DISPUTES
BETWEEN AN EMPLOYER AND A SINGLE UNION.  THE ORDINARY JURISDICTIONAL
DISPUTE ARISES WHEN TWO OR MORE UNIONS CLAIM THE RIGHT TO PERFORM A JOB
WHICH EXISTED AT THE TIME THEIR COLLECTIVE BARGAINING CONTRACTS WITH
THE EMPLOYER WERE MADE.  IN SUCH A SITUATION IT WOULD BE HIGHLY
UNLIKELY THAT EACH CONTRACT COULD BE CONSTRUED AS GIVING EACH UNION THE
RIGHT TO BE PAID FOR THE SINGLE JOB.  BUT THE DISPUTE BEFORE US NOW IS
NOT THE ORDINARY JURISDICTIONAL DISPUTE WHERE EACH UNION CLAIMS THE
RIGHT TO PERFORM A JOB WHICH EXISTED AT THE TIME ITS COLLECTIVE
BARGAINING AGREEMENT WAS MADE.  HERE, THOUGH TWO JOBS EXISTED WHEN THE
COLLECTIVE BARGAINING AGREEMENTS WERE MADE AND THOUGH THE RAILROAD
PROPERLY COULD CONTRACT WITH ONE UNION TO PERFORM ONE JOB AND THE OTHER
UNION TO PERFORM THE OTHER, AUTOMATION HAS NOW RESULTED IN THERE BEING
ONLY ONE JOB, A JOB WHICH IS DIFFERENT FROM EITHER OF THE FORMER TWO
JOBS AND WHICH WAS NOT EXPRESSLY CONTRACTED TO EITHER OF THE UNIONS. 
ALTHOUGH ONLY ONE UNION CAN BE ASSIGNED THIS NEW JOB, IT MAY BE THAT
THE RAILROAD'S AGREEMENT WITH THE NONASSIGNED UNION OBLIGATES THE
RAILROAD TO PAY IT FOR IDLENESS ATTRIBUTABLE TO SUCH JOB ELIMINATION
DUE TO AUTOMATION.  BUT THIS DOES NOT MEAN THAT BOTH UNIONS CAN, UNDER
THEIR SEPARATE AGREEMENTS, HAVE THE RIGHT TO PERFORM THE NEW JOB OR
THAT THE BOARD, ONCE THE DISPUTE HAS BEEN SUBMITTED TO IT, CAN POSTPONE
DETERMINING WHICH UNION HAS THE RIGHT TO THE JOB IN THE FUTURE.  BY
FIRST ORDERING THE RAILROAD TO PAY ONE UNION AND THEN LATER, IN A
SEPARATE PROCEEDING, ORDERING IT TO PAY THE OTHER UNION, WITHOUT EVER
DETERMINING WHICH UNION HAS THE RIGHT TO PERFORM THE JOB AND THUS
WITHOUT EVER PREJUDICING THE RIGHTS OF THE OTHER UNION, THE BOARD
ABDICATES ITS DUTY TO SETTLE THE ENTIRE DISPUTE.  YET THIS IS PRECISELY
THE KIND OF MERRY-GO-ROUND SITUATION WHICH THE PETITIONER CLAIMS IS
ENVISAGED BY THE ACT, A PROCEDURE WHICH CERTAINLY DOES NOT "PROVIDE FOR
THE PROMPT AND ORDERLY SETTLEMENT OF ALL DISPUTES  ... ," THE PURPOSE
OF WHICH THE ADJUSTMENT BOARD WAS ESTABLISHED.  SEC 2(5). 

                                       II. 

THE RAILROAD, THE EMPLOYEES, AND THE PUBLIC, FOR ALL OF WHOSE BENEFITS
THE RAILWAY LABOR ACT WAS WRITTEN, ARE ENTITLED TO HAVE A FAIR,
EXPEDITIOUS HEARING TO SETTLE DISPUTES OF THIS NATURE.  AND WE HAVE
SAID IN NO UNCERTAIN LANGUAGE THAT THE ADJUSTMENT BOARD HAS
JURISDICTION TO DO SO.  ORDER OF RAILWAY CONDUCTORS V. PITNEY, 326 U.S.
561, WAS DECIDED 20 YEARS AGO.  THAT CASE CONCERNED A DISPUTE OVER
WHICH EMPLOYEES SHOULD BE ASSIGNED TO DO CERTAIN RAILROAD JOBS -
MEMBERS OF THE CONDUCTORS' UNION UNDER THEIR CONTRACT OR MEMBERS OF THE
TRAINMEN'S UNION UNDER THEIR CONTRACT.  IN THAT CASE A DISTRICT COURT,
IN CHARGE OF A RAILROAD IN BANKRUPTCY, HAD ENTERED A JUDGMENT IN FAVOR
OF THE CONDUCTORS.  WE REVERSED, HOLDING THAT THE RAILWAY LABOR ACT
VESTED EXCLUSIVE POWER IN THE ADJUSTMENT BOARD TO DECIDE THAT
CONTROVERSY OVER JOB ASSIGNMENTS.  IT IS TRUE THAT WE DID NOT PRECISELY
DECIDE THERE THAT THE BOARD MUST BRING BEFORE IT ALL UNIONS CLAIMING
THE SAME JOBS FOR THEIR MEMBERS, BUT WE DID SAY THIS: 

"WE HAVE SEEN THAT IN ORDER TO REACH A FINAL DECISION ON THAT
QUESTION THE COURT FIRST HAD TO INTERPRET THE TERMS OF O.R.C.'S
COLLECTIVE BARGAINING AGREEMENTS.  THE RECORD SHOWS, HOWEVER, THAT
INTERPRETATION OF THESE CONTRACTS INVOLVES MORE THAN THE MERE
CONSTRUCTION OF A 'DOCUMENT' IN TERMS OF THE ORDINARY MEANING OF WORDS
AND THEIR POSITION  ...  .  FOR O.R.C.'S AGREEMENTS WITH THE RAILROAD
MUST BE READ IN THE LIGHT OF OTHERS BETWEEN THE RAILROAD AND B.R.T. AND
SINCE ALL PARTIES SEEK TO SUPPORT THEIR PARTICULAR INTERPRETATION OF
THESE AGREEMENTS BY EVIDENCE AS TO USAGE, PRACTICE AND CUSTOM, THAT TOO
MUST BE TAKEN INTO ACCOUNT AND PROPERLY UNDERSTOOD.  THE FACTUAL
QUESTION IS INTRICATE AND TECHNICAL.  AN AGENCY ESPECIALLY COMPETENT
AND SPECIFICALLY DESIGNATED TO DEAL WITH IT HAS BEEN CREATED BY
CONGRESS."  ID., AT 566-567. 

FOUR YEARS AFTER PITNEY WE DECIDED SLOCUM V. DELAWARE, L.&W.R. CO.,
339 U.S. 239.  IN THAT CASE A STATE COURT HAD INTERPRETED COLLECTIVE
BARGAINING CONTRACTS BETWEEN A RAILROAD AND THE SAME TWO UNIONS HERE
AND HAD DECIDED IN FAVOR OF THE CLERKS.  WE REVERSED, AND, RELYING ON
PITNEY, SAID: 

"  ...  THERE WE HELD, IN A CASE REMARKABLY SIMILAR TO THE ONE BEFORE
US NOW, THAT THE FEDERAL DISTRICT COURT IN ITS EQUITABLE DISCRETION
SHOULD HAVE REFUSED 'TO ADJUDICATE A JURISDICTIONAL DISPUTE INVOLVING
THE RAILROAD AND TWO EMPLOYEE ACCREDITED BARGAINING AGENTS  ...  .' 
OUR GROUND FOR THIS HOLDING WAS THAT THE COURT 'SHOULD NOT HAVE
INTERPRETED THE CONTRACTS' BUT SHOULD HAVE LEFT THIS QUESTION FOR
DETERMINATION BY THE ADJUSTMENT BOARD, A CONGRESSIONALLY DESIGNATED
AGENCY PECULIARLY COMPETENT IN THIS FIELD.  326 U.S., AT 567-568." 
ID., AT 243-244. 

WE ADHERE TO OUR HOLDINGS IN PITNEY AND SLOCUM THAT THE ADJUSTMENT
BOARD DOES HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE DISPUTES
LIKE THIS.  SEE ALSO ORDER OF RAILWAY CONDUCTORS OF AMERICA V. SOUTHERN
R. CO., 339 U.S. 255.  PETITIONER ARGUES THAT WE ARE BARRED FROM THIS
HOLDING BY WHITEHOUSE V. ILLINOIS CENT. R. CO., 349 U.S. 366, DECIDED
AFTER PITNEY AND SLOCUM.  THERE IS SOME LANGUAGE IN WHITEHOUSE WHICH,
GIVEN ONE INTERPRETATION, MIGHT JUSTIFY AN INFERENCE AGAINST THE
ADJUSTMENT BOARD'S JURISDICTION FULLY TO DECIDE THIS CASE IN A SINGLE
PROCEEDING.  BUT IN THE FINAL ANALYSIS THE HOLDING IN WHITEHOUSE WAS
ONLY THAT THE PRIMARY JURISDICTION OF THE ADJUSTMENT BOARD COULD NOT BE
FRUSTRATED BY A PREMATURE JUDICIAL ACTION.  CF. CAREY V. WESTINGHOUSE
ELEC.  CORP., 375 U.S. 261, 265-266.  WE DECLINE TO EXPAND THAT CASE
BEYOND ITS ACTUAL HOLDING. 

THE ADJUSTMENT BOARD HAS JURISDICTION, WHICH PETITIONER ADMITS, TO
HEAR AND DECIDE THE CONTROVERSY OVER THE INTERPRETATION OF THE
TELEGRAPHERS' CONTRACT WITH THE RAILROAD AS IT RELATES TO THE WORK
ASSIGNMENTS.  AND SEC 3 FIRST (J) PROVIDES THAT "THE SEVERAL DIVISIONS
OF THE ADJUSTMENT BOARD SHALL GIVE DUE NOTICE OF ALL HEARINGS TO THE
EMPLOYEE OR EMPLOYEES AND THE CARRIER OR CARRIERS INVOLVED IN ANY
DISPUTES SUBMITTED TO THEM."  THE CLERKS' UNION WAS GIVEN NOTICE HERE
AS IT SHOULD HAVE BEEN UNDER SEC 3 FIRST (J).  CERTAINLY IT IS
"INVOLVED" IN THIS DISPUTE.  WITHOUT ITS PRESENCE, UNLESS IT CHOOSES TO
DEFAULT AND SURRENDER ITS CLAIMS FOR ITS MEMBERS, NEITHER THE BOARD NOR
THE COURTS BELOW COULD DETERMINE THIS WHOLE DISPUTE.  AS RESPONDENT
CONTENDS, TO DECIDE, AS THE BOARD HAS HERE, THAT THE TELEGRAPHERS ARE
ENTITLED TO BE PAID FOR THESE JOBS CREATES ANOTHER CONTROVERSY FOR THE
RAILROAD WITH THE CLERKS WHO HAVE THE JOBS NOW.  FOR SHOULD THE BOARD'S
ORDER BE SUSTAINED, THE RAILROAD WOULD NOT ONLY HAVE TO MAKE BACK
PAYMENTS TO THE TELEGRAPHERS WHO HAVE DONE NO WORK BUT WOULD BE
COMPELLED TO CONTINUE TO PAY TWO SETS OF WORKERS - ONE SET BEING IDLE. 
THE ADJUSTMENT BOARD, AS WE SAID ABOUT THE NATIONAL LABOR RELATIONS
BOARD IN LABOR BOARD V. RADIO & TELEVISION BROADCAST ENGINEERS, 364
U.S. 573, 582-583, CAN, WITH ITS EXPERIENCE AND COMMON SENSE, HANDLE
THIS ENTIRE DISPUTE IN A SATISFACTORY MANNER IN A SINGLE PROCEEDING. 

WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS IN HOLDING THAT THE
CLERKS' UNION SHOULD BE A PARTY BEFORE THE BOARD AND THE COURTS TO THIS
LABOR DISPUTE OVER JOB ASSIGNMENTS FOR ITS MEMBERS.  THE CAUSE SHOULD
BE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO REMAND THIS CASE
TO THE BOARD.  (FN4)  THE BOARD SHOULD BE DIRECTED TO GIVE ONCE AGAIN
THE CLERKS' UNION AN OPPORTUNITY TO BE HEARD, AND, WHETHER OR NOT THE
CLERKS' UNION ACCEPTS THIS OPPORTUNITY, TO RESOLVE THIS ENTIRE DISPUTE
UPON CONSIDERATION NOT ONLY OF THE CONTRACT BETWEEN THE RAILROAD AND
THE TELEGRAPHERS, BUT "IN LIGHT OF ...  CONTRACTS BETWEEN THE RAILROAD"
AND ANY OTHER UNION "INVOLVED" IN THE OVERALL DISPUTE, AND UPON
CONSIDERATION OF "EVIDENCE AS TO USAGE, PRACTICE AND CUSTOM" PERTINENT
TO ALL THESE AGREEMENTS.  ORDER OF RAILWAY CONDUCTORS V. PITNEY, SUPRA,
AT 567.  THE BOARD'S ORDER, BASED UPON SUCH THOROUGH CONSIDERATION
AFTER GIVING THE CLERKS' UNION A CHANCE TO BE HEARD, WILL THEN BE
ENFORCEABLE BY THE COURTS.  IT IS SO ORDERED.    FN1  THIS SECTION
PROVIDES: 

"THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER
OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS,  ...  SHALL BE HANDLED IN THE USUAL MANNER  ...  BUT,
FAILING TO REACH AN ADJUSTMENT IN THIS MANNER, THE DISPUTES MAY BE
REFERRED BY PETITION OF THE PARTIES OR BY EITHER PARTY TO THE
APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD WITH A FULL STATEMENT OF
THE FACTS AND ALL SUPPORTING DATA BEARING UPON THE DISPUTES."  44 STAT.
578, AS AMENDED, 48 STAT. 1191, 45 U.S.C. SEC 153 FIRST (I). 

FN2  SECTION 3 FIRST (J) OF THE ACT, 45 U.S.C. SEC 153 FIRST (J),
REQUIRES THE ADJUSTMENT BOARD TO "GIVE DUE NOTICE OF ALL HEARINGS TO
THE EMPLOYEE OR EMPLOYEES AND THE CARRIER OR CARRIERS INVOLVED IN ANY
DISPUTES SUBMITTED TO THEM."  PRIOR TO THIS CASE IT WAS THE POLICY OF
THE VARIOUS RAILROAD UNIONS, INCLUDING THE CLERKS' AND TELEGRAPHERS',
IN WORK-ASSIGNMENT DISPUTES SUBMITTED TO THE BOARD, TO REFUSE TO GIVE
NOTICE OF AND TO PROHIBIT PARTICIPATION IN BOARD PROCEEDINGS BY ANYONE
BUT THE INVOLVED RAILROAD AND THE PETITIONING UNION.  THIS POLICY,
FOLLOWED BY THE LABOR MEMBERS OF THE BOARD, RESULTED IN NO NOTICE BEING
GIVEN TO THE NONPETITIONING UNION.  SEE WHITEHOUSE V. ILLINOIS CENT. R.
CO., 349 U.S. 366, 372.  IN 1959, AFTER SOME COURTS HAD REFUSED TO
ENFORCE THE BOARD'S AWARDS WHERE IT HAD FAILED TO NOTIFY THE
NONPETITIONING UNION, SEE, E.G., ORDER OF R.R. TELEGRAPHERS V. NEW
ORLEANS, T.&M.R. CO., 229 F.2D 59, CERT. DENIED, 350 U.S. 997, THE
RAILWAY LABOR EXECUTIVES' ASSOCIATION, COMPOSED OF THE VARIOUS RAILROAD
UNIONS, CHANGED THIS POLICY TO THE EXTENT THAT NOTICE WOULD HENCEFORTH
BE GIVEN TO NONPETITIONING UNIONS.  YET THE RAILWAY LABOR EXECUTIVES'
ASSOCIATION PRESCRIBED A FORM-LETTER RESPONSE - TO BE SENT BY THE
NOTIFIED NONPETITIONING UNION TO THE BOARD - WHICH DISAVOWED ANY
INTEREST IN THE DISPUTE AND DECLINED THE OPPORTUNITY TO PARTICIPATE
BEFORE THE BOARD EXCEPT IN A SUBSEQUENT AND SEPARATE PROCEEDING
INITIATED BY THE NONPETITIONING UNION IN THE EVENT THE BOARD'S DECISION
ADVERSELY AFFECTED ITS MEMBERS' JOBS.  THE CLERKS' UNION USED THIS FORM
LETTER TO RESPOND TO THE SEC 3 FIRST (J) NOTICE IN THE INSTANT CASE. 

FN3  THE COURT OF APPEALS' CONTROLLING OPINION IS REPORTED AT 349
F.2D 408.  A PRIOR OPINION WHICH WAS WITHDRAWN IS UNOFFICIALLY REPORTED
AT 59 L.R.R.M. 2993. 

FN4  THE COURT OF APPEALS IN AFFIRMING THE DISMISSAL OF THE
TELEGRAPHERS' UNION'S PETITION FOR ENFORCEMENT WAS QUITE CORRECT IN
HOLDING THAT THE FAILURE OF THE CLERKS TO APPEAR BEFORE THE BOARD AND
OF THE BOARD TO CONSIDER THE CONTRACT BETWEEN THE CLERKS AND THE
RAILROAD COULD NOT BE CURED MERELY BY JOINDER OF THE CLERKS' UNION IN
THE DISTRICT COURT'S ENFORCEMENT PROCEEDING.  THE BOARD HAD THE
EXCLUSIVE JURISDICTION TO CONSIDER THE CLERKS' CONTRACT AND ANY CLAIM
THEY MIGHT HAVE ASSERTED UNDER IT.  AT THE TIME, THE COURT OF APPEALS
HAD NO ALTERNATIVE BUT TO AFFIRM THE DISMISSAL BY THE DISTRICT COURT,
FOR DISTRICT COURTS COULD ONLY "ENFORCE OR SET ASIDE" THE BOARD'S
ORDERS UNDER SEC 3 FIRST (P).  THEY COULD NOT REMAND CASES TO THE
BOARD.  THIS WAS CHANGED ON JUNE 20, 1966, BY PUB. L. NO. 89-456, SEC
2(E), 80 STAT. 209, WHICH INSERTED A NEW PROVISION, SEC 3 FIRST (Q),
EMPOWERING DISTRICT COURTS TO REMAND PROCEEDINGS TO THE BOARD.  IN VIEW
OF THE BOARD'S FAILURE TO CONSIDER ALL OF THE ISSUES AND THE CLERKS'
UNDERSTANDABLE REFUSAL TO PARTICIPATE BECAUSE OF THE THEN EXISTING
DOUBT AS TO WHETHER THEY COULD BE BOUND BY THE BOARD'S DECISION, WE
CONCLUDE IT APPROPRIATE TO USE THIS NEW AVAILABILITY OF REMAND TO THE
BOARD. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE BRENNAN JOINS, CONCURRING. 

UNTIL NOW THE ADJUSTMENT BOARD HAS DEALT WITH THE CLAIM OF THE
TELEGRAPHERS AS THOUGH IT WERE TOTALLY UNRELATED TO THE CLAIM OF THE
CLERKS.  TO TAKE THIS PIECEMEAL APPROACH TO THE UNDERLYING CAUSES OF
THIS CONTROVERSY NOT ONLY INVITES INCONSISTENT AWARDS, BUT ALSO IGNORES
THE INDUSTRIAL CONTEXT IN WHICH THE DISPUTED CONTRACT WAS FRAMED AND
IMPLEMENTED. 

THIS CASE APTLY ILLUSTRATES WHY THE BOARD CANNOT JUDGE ONE-HALF OF A
PROBLEM WHILE CLOSING ITS EYES TO THE OTHER HALF.  THE DISPUTED
PROVISIONS OF THE COLLECTIVE AGREEMENT WERE DRAWN BEFORE TECHNOLOGICAL
PROGRESS TELESCOPED TWO WORK STATIONS INTO ONE.  THE AGREEMENT DID NOT
EXPLICITLY PROVIDE FOR SUCH A CHANGE.  BUT IT WAS DESIGNED TO COVER AN
EXTENDED PERIOD OF TIME, AND ITS LANGUAGE IS SUFFICIENTLY GENERAL TO
ALLOW FOR FLEXIBILITY IN THE LIGHT OF CHANGING CIRCUMSTANCES.* 

*AMONG THE RULES OF THE TELEGRAPHERS' AGREEMENT INVOKED IN THIS
DISPUTE, THE FOLLOWING ARE THE MOST RELEVANT:

                        ARTICLE 1 - SCOPE. 

RULE 1.  THIS AGREEMENT WILL GOVERN THE WAGES AND WORKING CONDITIONS
OF AGENTS, AGENT-TELEGRAPHERS, AGENT-TELEPHONERS, TELEGRAPHERS,
TELEPHONERS, TELEGRAPHER-CLERKS, TELEPHONER-CLERKS, TELEGRAPHER-CAR
DISTRIBUTORS, TICKET CLERK-TELEGRAPHERS, TELEGRAPHER-SWITCH-TENDERS,
C.T.C. TELEGRAPHERS, TRAIN AND TOWER DIRECTORS, TOWERMEN, LEVER-MEN,
BLOCK OPERATORS, STAFFMEN, MANAGERS, WIRE CHIEFS, REPEATER CHIEFS,
CHIEF OPERATORS, PRINTER MECHANICIANS, TELEPHONE OPERATORS (EXCEPT
SWITCHBOARD OPERATORS), TELETYPE OPERATORS, PRINTER OPERATORS, AGENTS
NON-TELEGRAPHERS, AND AGENTS NON-TELEPHONERS HEREIN LISTED. 

                    ARTICLE 2 - POSITIONS AND RATES OF PAY. 

RULE 5.  GENERAL TELEGRAPH OFFICES.  (A) POSITIONS AND RATES OF PAY
IN GENERAL TELEGRAPH OFFICES UNDER THE JURISDICTION OF THE
SUPERINTENDENT TELEGRAPH SHALL BE AS FOLLOWS: 

     *         *         *         *   *

 4 LAS VEGAS "VG"

          MANAGER                         2.127

          2D CHIEF OPERATOR-PRINTER MECHN.             1.995

          3D CHIEF OPERATOR-PRINTER MECHN.             1.995

          TELEGRAPHER                                  1.851 

     *         *        *         *         * 

RULE 6.  NEW POSITIONS.  THE WAGES OF NEW POSITIONS SHALL BE IN
CONFORMITY WITH THE WAGES OF POSITIONS OF SIMILAR KIND OR CLASS IN THE
SENIORITY DISTRICT WHERE CREATED. 

                         ARTICLE 3 - TIME ALLOWANCES. 

RULE 10.  DAILY GUARANTEE.  REGULARLY ASSIGNED EMPLOYEES WILL RECEIVE
EIGHT HOURS PAY FOR EACH TWENTY-FOUR HOURS, AT RATE OF POSITION
OCCUPIED  ...  . 

     *         *        *         *          *

ARTICLE 6 - SENIORITY. 

RULE 47.  PROMOTION.  (A) PROMOTION SHALL BE BASED ON SENIORITY AND
QUALIFICATIONS; QUALIFICATIONS BEING SUFFICIENT, SENIORITY WILL
PREVAIL. 

     *  *         *         *         *

 ARTICLE 8 - GENERAL. 

RULE 62.  TRAIN ORDERS.  NO EMPLOYEE OTHER THAN COVERED BY THIS
SCHEDULE AND TRAIN DISPATCHERS WILL BE PERMITTED TO HANDLE TRAIN ORDERS
AT TELEGRAPH OR TELEPHONE OFFICES WHERE AN OPERATOR IS EMPLOYED, AND IS
AVAILABLE, OR CAN BE PROMPTLY LOCATED, EXCEPT IN AN EMERGENCY, IN WHICH
CASE THE TELEGRAPHER WILL BE PAID FOR THE CALL. 

     * *         *         *          * 

RULE 70.  DATE EFFECTIVE AND CHANGE.  THIS AGREEMENT WILL BE
EFFECTIVE AS OF JANUARY 1, 1952, AND SHALL CONTINUE IN EFFECT UNTIL IT
IS CHANGED AS PROVIDED HEREIN, OR UNDER THE PROVISIONS OF THE RAILWAY
LABOR ACT. 

TO DO JUSTICE TO THE PARTIES IN THIS SITUATION THE BOARD MUST TAKE
FULL MEASURE OF THEIR CIRCUMSTANCES.  TO JUSTIFY THE DEFERENCE WHICH
THE LAW HAS GIVEN TO ITS DECISIONS, THE BOARD MUST EMPLOY A DECISION
MAKING TECHNIQUE THAT RESTS ON FAIR PROCEDURE AND INDUSTRIAL
REALITIES.  BY USING A SIMPLE BILATERAL CONTRACT ANALYSIS THE BOARD
DEFAULTS IN BOTH OF THESE DUTIES.  CF. COX, THE LEGAL NATURE OF
COLLECTIVE BARGAINING AGREEMENTS, 57 MICH.  L. REV. 1, 22-23, 26-27
(1958); NOTE, 75 YALE L.J. 877, 889-890 (1966). 

ONLY BY PROCEEDING AS THE COURT TODAY DIRECTS CAN THE BOARD PROPERLY
DECIDE CASES OF THIS KIND.  THE PROVISIONS IN THE RAILWAY LABOR ACT
WHICH STATE THAT THE BOARD'S ORDERS ARE TO BE DIRECTED ONLY AGAINST THE
CARRIER DO NOT DETRACT FROM THE POWER OF THE BOARD TO FULFILL ITS
TASKS.  FOR IF THE TELEGRAPHERS AND THE CLERKS BOTH ADVANCED THEIR
CLAIMS AND THE BOARD DIRECTED THE CARRIER TO HONOR THE CLAIMS OF ONLY
ONE UNION, THE OTHER UNION WOULD BE BOUND JUST AS THOUGH IT HAD LOST IN
A MULTILATERAL IN REM PROCEEDING.  SEE 3 FREEMAN, THE LAW OF JUDGMENTS
SECS 1524-1526 (5TH ED. 1925). 

SINCE THE BOARD HAS FAILED TO USE PROCEDURES WHICH ALLOW FOR AN
INFORMED AND FAIR UNDERSTANDING OF THE DISPUTE BETWEEN THE PETITIONER
AND RESPONDENT, I CONCUR IN THE OPINION AND JUDGMENT OF THE COURT. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THIS CASE INVOLVES A DISPUTE BETWEEN THE TELEGRAPHERS' UNION AND A
RAILROAD AS TO WHETHER THE UNION'S MEMBERS, UNDER ITS COLLECTIVE
BARGAINING AGREEMENT WITH THE CARRIER, WERE ENTITLED TO CERTAIN JOBS
(OR COMPENSATORY PAYMENTS IN LIEU THEREOF) WHICH THE CARRIER HAD
UNILATERALLY ALLOTTED TO ANOTHER UNION, THE CLERKS.  THE TELEGRAPHERS
COMPLAINED TO THE RAILROAD ADJUSTMENT BOARD.  THE BOARD HELD THAT,
UNDER THE CONTRACT BETWEEN THE TELEGRAPHERS AND THE RAILROAD, THE
TELEGRAPHERS' MEMBERS HAD A RIGHT TO THE JOBS, AND IT ORDERED THE
CARRIER TO MAKE COMPENSATORY PAYMENTS TO THE SENIOR TELEGRAPHER IDLED
BY ITS ACTION. 

THE COURT NOW HOLDS THAT SUCH AN AWARD WILL NOT BE ENFORCED BECAUSE
THE CLERKS' UNION WAS NOT A PARTY TO THE PROCEEDING, AND BECAUSE THE
BOARD MERELY ADJUDICATED THE RIGHTS OF THE TELEGRAPHERS AND DID NOT
DETERMINE WHETHER THE CLERKS WERE ENTITLED TO THE JOBS INSTEAD.  THE
COURT'S OPINION STATES THAT THE JOBS IN QUESTION MUST BELONG TO ONE
UNION OR THE OTHER, AND THAT IT IS THE BOARD'S DUTY TO DECIDE WHICH OF
THE TWO UNIONS IS ENTITLED TO THE JOBS. 

I DISSENT.  THE BOARD ACTED AS THE STATUTE COMMANDS.  AS I SHALL
DISCUSS, ITS POWER IS LIMITED TO ADJUDICATIONS OF GRIEVANCES AND
CONTRACT DISPUTES BETWEEN A UNION AND A RAILROAD.  IT CANNOT COMPEL
CONVERSION OF A COMPLAINT PROCEEDING BETWEEN A UNION AND A RAILROAD
INTO A THREE-PARTY PROCEEDING TO "SETTLE THE ENTIRE DISPUTE." 
CERTAINLY THE COURTS SHOULD NOT REFUSE TO ENFORCE ITS AWARD BECAUSE THE
BOARD HAS FAILED TO DO SOMETHING WHICH THE STATUTE DOES NOT REQUIRE OR
EMPOWER IT TO DO.  I ALSO EMPHATICALLY SUBMIT THAT THIS COURT SHOULD
NEITHER DEVISE NOR IMPOSE UPON THE BOARD OR UPON MANAGEMENT AND LABOR,
THE PROPOSITION, MAKING ITS DEBUT IN THIS CASE IN THE FIELD OF RAILWAY
LABOR LAW, THAT "ONLY ONE UNION CAN BE ASSIGNED THIS NEW JOB."  THERE
IS NOTHING IN THE STATUTE OR PRECEDENTS THAT PERMITS OR JUSTIFIES THIS
PEREMPTORY JUDICIAL FORAY INTO OTHER PEOPLE'S BUSINESS. 

THE BASIS OF THE COURT'S HOLDING CANNOT BE FOUND IN ANY PROVISION OF
THE RAILWAY LABOR ACT.  44 STAT. 577(1926), AS AMENDED, 45 U.S.C. SECS
151-188 (AS AMENDED BY ACT OF JUNE 20, 1966, 80 STAT. 208).  THE COURT
ADVERTS TO SEC 2 OF THE ACT, WHICH SETS FORTH THE PURPOSES OF THE
RAILWAY LABOR ACT (INCLUDING, OF COURSE, PROVISIONS RELATING TO THE
NATIONAL MEDIATION BOARD AND PROVISIONS CREATING GENERAL DUTIES AND
RIGHTS OF CARRIERS AND EMPLOYEES - NONE OF WHICH DEFINES THE POWERS OF
THE ADJUSTMENT BOARD).  SECTION 2 SETS FORTH A NUMBER OF PURPOSES,
AMONG WHICH APPEARS THE PHRASE QUOTED IN PART BY THE COURT:  "(4) TO
PROVIDE FOR THE PROMPT AND ORDERLY SETTLEMENT OF ALL DISPUTES
CONCERNING RATES OF PAY, RULES, OR WORKING CONDITIONS; (5) TO PROVIDE
FOR THE PROMPT AND ORDERLY SETTLEMENT OF ALL DISPUTES GROWING OUT OF
GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION OF AGREEMENTS
COVERING RATES OF PAY, RULES, OR WORKING CONDITIONS."  TO THE EXTENT TO
WHICH THESE PROVISIONS RELATE SPECIFICALLY TO THE PURPOSES OF THE
ADJUSTMENT BOARD, THEY DO NOT DEFINE ITS POWERS.  THE BOARD'S POWERS
ARE SPECIFICALLY DEFINED AND LIMITED IN SEC 3 FIRST (I) OF THE ACT. 
THE COURT BEGS THE QUESTION BY GIVING TO THE PHRASE "SETTLEMENT OF ALL
DISPUTES" A MEANING WHICH DISREGARDS BOTH THE QUALIFYING LANGUAGE OF
SEC 2 ITSELF, AND THE SPECIFIC ENUMERATION OF POWERS IN SEC 3 FIRST
(I). 

ULTIMATELY, HOWEVER, THE COURT APPEARS TO REST ITS DECISION NOT UPON
THE ACT, BUT UPON A "PRINCIPLE" WHICH IT NOW CREATES.  THAT PROPOSITION
- UNKNOWN TO RAILWAY LABOR LAW UNTIL THIS DAY - IS THAT, WHATEVER THE
PARTIES' CONTRACT PROVIDES, THE BOARD MUST OBSERVE AND ENFORCE THE RULE
THAT "ONLY ONE UNION CAN BE ASSIGNED THIS NEW JOB."  THE COURT HOLDS
THAT EVEN IF "THE RAILROAD'S AGREEMENT WITH THE NONASSIGNED UNION
OBLIGATES THE RAILROAD TO PAY IT FOR IDLENESS ATTRIBUTABLE TO SUCH JOB
ELIMINATION DUE TO AUTOMATION," THE BOARD CANNOT CONCLUDE "THAT BOTH
UNIONS CAN, UNDER THEIR SEPARATE AGREEMENTS, HAVE THE RIGHT TO PERFORM
THE NEW JOB  ...  ."  IT IS BECAUSE OF THIS CONTROLLING PRINCIPLE THAT
THE COURT ASSERTS IT WAS ERROR FOR THE BOARD TO MAKE AN AWARD UNLESS
THE AWARD WOULD BIND THE CLERKS' UNION AS WELL.  THROUGHOUT ITS OPINION
THE COURT STRESSES THAT THERE IS NOW BUT ONE "JOB" AND THAT ONLY ONE
UNION'S MEMBER CAN HAVE "THE RIGHT TO THE JOB."  OBVIOUSLY ONLY ONE
PERSON CAN ACTUALLY DO THE JOB; BUT THE BOARD HELD ONLY THAT A
TELEGRAPHER WAS ENTITLED TO BE PAID FOR THE JOB.  IN FACT, THE COURT IS
- WITHOUT ARTICULATING ITS PREMISE - ASSUMING THAT FEATHERBEDDING IS
FORBIDDEN BY NATURAL LAW OR SOME OTHER TYPE OF MANDATE THAT OVERRIDES
CONTRACT, AND THAT IT IS THE BOARD'S DUTY TO ENFORCE THE PROHIBITION. 
FROM THIS NOVEL PREMISE IT DERIVES ITS CONCLUSION THAT THE AWARD WAS
NOT ENFORCEABLE.    THERE IS NO BASIS IN THE RAILWAY LABOR ACT FOR
EITHER OF THE COURT'S PROPOSITIONS:  THAT BOTH UNIONS MUST BE PARTIES
TO A PROCEEDING INITIATED BY ONE OF THEM, OR THAT THE BOARD MUST
"SETTLE THE ENTIRE DISPUTE" BY DETERMINING THAT ONE OR THE OTHER (BUT
NOT BOTH) OF THE UNIONS HAS TITLE TO THE JOBS.  THE COURT'S
PREDILECTION FOR ONE JOB, ONE MAN MAY BE SENSIBLE, BUT IT MAY ALSO BE
CONTRARY TO CONTRACT; AND I KNOW OF NO PROVISION IN THE CONSTITUTION OR
STATUTES OR DECIDED CASES THAT COMPELS IT.  THERE IS NO BASIS FOR THIS
COURT TO DICTATE - AND THAT IS WHAT IT IS HERE DOING - THAT A
COLLECTIVE BARGAINING CONTRACT MAY NOT BE ENFORCED IN ACCORDANCE WITH
ITS TERMS BUT MUST BE SUBORDINATED TO A ONE JOB, ONE MAN THEORY.  THIS
COURT CANNOT AND SHOULD NOT IMPOSE ITS OWN VIEWS.  THE ANTI
FEATHERBEDDING PRINCIPLE MAY OR MAY NOT BE AN ADMIRABLE THEORY,
DEPENDING UPON ONE'S PRECONCEPTIONS AND POINT OF VIEW.  IT DOES NOT NOW
EXIST IN THE RAILWAY LABOR FIELD.  AND I RESPECTFULLY SUGGEST THAT THIS
COURT IS IN NO POSITION TO ASSESS THE DESIRABILITY OF ITS JUDICIAL
INNOVATION.  IF FEATHERBEDDING IN THE RAILROAD INDUSTRY IS TO BE
DECLARED UNLAWFUL, IT SHOULD NOT BE THIS COURT WHICH DOES IT.  TO SAY
THE LEAST, THE PROBLEMS ARE TOO ESOTERIC AND TOO VOLATILE TO BE THE
SUBJECT OF JUDICIAL EDICT.  THEY SHOULD BE LEFT TO THE PARTIES AND THE
LEGISLATURE.  CERTAINLY, THIS COURT SHOULD NOT INVADE THE INTEGRITY OF
COLLECTIVE BARGAINING CONTRACTS TO LEGISLATE THE RESULT IT CONSIDERS
DESIRABLE OR "ORDERLY." 

ONLY LAST TERM THIS COURT CONSIDERED ONE OF THE PECULIAR INSTITUTIONS
OF RAILWAY LABOR, AND SUSTAINED THE VALIDITY OF STATE "FULL-CREW"
STATUTES.  THESE STATUTES, IN DIRECT CONTRAST TO THE ONE JOB, ONE MAN
PRINCIPLE THAT THE COURT TODAY ASSUMES, HAVE THE EFFECT SOMETIMES OF
REQUIRING RAILROADS TO HIRE ONE MAN, NO JOB.  THE COURT SUSTAINED THESE
STATUTES AGAINST CLAIMS, AMONG OTHERS, THAT CONGRESS IN THE RAILWAY
LABOR ACT HAD PREMPTED THE FIELD.  ENGINEERS V. CHICAGO, R.I.&P.R. CO.,
382 U.S. 423 (1966).  SUCH A "SENSITIVE AND TOUCHY PROBLEM" (ID., AT
430), THE COURT WISELY DECIDED, WAS TO BE LEFT TO COLLECTIVE BARGAINING
AND THE STATES IN THE ABSENCE OF A CLEAR CONGRESSIONAL COMMAND.  IT IS
HARD TO COMPREHEND THE ENGINEERS CASE IF, AS THE COURT NOW FINDS, THE
RAILWAY LABOR ACT ITSELF (PRESUMABLY EVER SINCE ITS ENACTMENT IN 1926)
OR OTHER OVERRIDING LAW FORBIDS WHAT "FULL-CREW" LAWS COMMAND. 
CERTAINLY, THE PRESENT PROBLEM, IF IT IS A DIFFERENT ONE AT ALL, IS
EQUALLY "SENSITIVE AND TOUCHY," AND THE COURT HAS YET TO DISCLOSE THE
CONGRESSIONAL AUTHORITY DICTATING CONTRARY TREATMENT. 

PRIOR DECISIONS OF THIS COURT ARE OF NO ASSISTANCE.  THE COURT FIRST
REFERS TO ORDER OF RAILWAY CONDUCTORS V. PITNEY  326 U.S. 561 (1946). 
THE COURT CANDIDLY STATES THAT "WE DID NOT PRECISELY DECIDE THERE THAT
THE BOARD MUST BRING BEFORE IT ALL UNIONS CLAIMING THE SAME JOBS FOR
THEIR MEMBERS  ...  ."  ALL THAT THE COURT DECIDED IN PITNEY WAS THAT A
DISPUTE BETWEEN TWO UNIONS CLAIMING A RIGHT TO CERTAIN JOBS HAD FIRST
TO BE DETERMINED BY THE RAILROAD ADJUSTMENT BOARD, AND COULD NOT BE
DECIDED INITIALLY BY A BANKRUPTCY COURT IN REORGANIZATION PROCEEDINGS. 
THE PASSAGE FROM PITNEY QUOTED BY THE COURT MERELY STATES THAT THE
DECISION OF THE ISSUE - THE INTERPRETATION OF THE CONDUCTORS'
COLLECTIVE BARGAINING CONTRACT - HAD TO BE MADE IN LIGHT OF USAGE,
PRACTICE AND CUSTOM, AND OF OTHER AGREEMENTS BETWEEN THE RAILROAD AND
THE TRAINMEN.  INDEED, THE QUOTATION FROM PITNEY RECALLS THE BASIC
PRINCIPLE THAT THE COURT HERE IGNORES:  THAT IN THE "INTRICATE AND
TECHNICAL" FIELD OF RAILWAY LABOR RELATIONS, NO COURT, INCLUDING THIS
COURT, SHOULD DISPLACE THE AGENCY WHICH CONGRESS HAS VESTED WITH
AUTHORITY - CERTAINLY NOT WITH THE DRASTIC IMPOSITION OF A MANDATE TO
ELIMINATE FEATHERBEDDING. 

IT IS, HOWEVER, ESSENTIAL TO NOTE THAT THERE IS ABSOLUTELY NO REASON
TO BELIEVE THAT THE BOARD FAILED TO FOLLOW PITNEY HERE.  BOTH THE
MAJORITY AND CONCURRING OPINIONS ASSUME AS FACT THAT THE ADJUSTMENT
BOARD VIOLATED THE DUTY DECLARED IN PITNEY TO CONSTRUE THE
TELEGRAPHERS' CONTRACT IN LIGHT OF THE CLERKS' CONTRACT AND RAILROAD
USAGE, PRACTICE AND CUSTOM.  THUS THE MAJORITY CHARACTERIZES THE
BOARD'S PROCEEDINGS IN THIS CASE AS ONE "IN WHICH ONLY THE
TELEGRAPHERS'  ... CONTRACT WITH THE EMPLOYER WAS  ...  CONSIDERED." 
THE CONCURRENCE ASSERTS THAT "UNTIL NOW THE ADJUSTMENT BOARD HAS DEALT
WITH THE CLAIM OF THE TELEGRAPHERS AS THOUGH IT WERE TOTALLY UNRELATED
TO THE CLAIM OF THE CLERKS," AND HAS USED "A SIMPLE BILATERAL CONTRACT
ANALYSIS" WHICH PREVENTED IT FROM ARRIVING AT "AN INFORMED AND FAIR
UNDERSTANDING OF THE DISPUTE BETWEEN THE PETITIONER AND RESPONDENT."  I
AM UNABLE TO FIND IN THE RECORD BEFORE THIS COURT ANY SUPPORT FOR THESE
SUGGESTIONS THAT THE ADJUSTMENT BOARD FAILED TO PERFORM ITS DUTY BY
REFUSING TO CONSIDER THE CLERKS' CONTRACT FOR ITS EVIDENTIARY VALUE. 
(FN1) 

THE AWARD OF THE BOARD MAKES CLEAR THAT BOTH PRACTICE AND USAGE, AND
THE POSSIBLY CONFLICTING CONTRACTUAL CLAIM OF THE CLERKS TO THE JOB IN
QUESTION, AND THE FACT THAT CLERKS WERE CURRENTLY PERFORMING THE JOB,
WERE CONSIDERED BY THE BOARD.  AS TO USAGE, THE BOARD ITSELF OBSERVED,
WITH RESPECT TO A DIFFERENT ASPECT OF ITS AWARD, THAT "THERE IS
UNANIMITY UPON THE PROPOSITION THAT WHERE, AS HERE, THE SCOPE RULE
LISTS POSITIONS INSTEAD OF DELINEATING WORK, IT IS NECESSARY TO LOOK TO
PRACTICE AND CUSTOM TO DETERMINE THE WORK WHICH IS EXCLUSIVELY RESERVED
BY THE SCOPE RULE TO PERSONS COVERED BY THE AGREEMENT." 

THE BOARD'S ANALYSIS OF THE SUBSTANCE OF THE DISPUTE SHOWS ITS
CENTRAL AWARENESS OF THE CLERKS' CLAIM TO THE JOBS.  THE MACHINES
INVOLVED IN THIS CASE ARE IBM TELETYPE PRINTERS AND RECEIVERS.  THEY
PERFORM AUTOMATICALLY THE FUNCTION OF TRANSMITTING AND RECEIVING
TELETYPE MESSAGES BETWEEN ON-LINE RAILROAD OFFICES.  THE BOARD FOUND
THAT PRIOR TO THE INSTALLATION OF THESE MACHINES, TELEGRAPHERS HAD
EXCLUSIVELY PERFORMED THIS TRANSMITTING AND RECEIVING FUNCTION AS
TELETYPE OPERATORS AND PRINTER OPERATORS.  HOWEVER, APPARENTLY FOR ITS
OWN CONVENIENCE, SINCE OTHER MACHINES IN ITS IBM-COMPLEX WERE OPERATED
BY CLERKS, THE RAILROAD UNILATERALLY ASSIGNED THE OPERATION OF THE
TELETYPE PRINTERS AND RECEIVERS TO MEMBERS OF THE CLERKS' UNION.  THE
BOARD FOUND THAT THE WORK INVOLVED IN OPERATING THE NEW MACHINES HAD
"BEEN PERFORMED IN THE PAST BY TELEGRAPHERS AND NOT BY CLERKS." 

FURTHERMORE, EVEN IF THE MAJORITY AND CONCURRING OPINIONS WERE
CORRECT IN STATING THAT THE BOARD FAILED TO TAKE THE PROPER BROAD VIEW
OF ITS FUNCTION IN CONSTRUING THE CONTRACT BEFORE IT, THE REMEDY, OF
COURSE, WOULD BE TO REMAND TO THE BOARD FOR A SECOND PROCEEDING TO
CONSTRUE THIS CONTRACT.  INSTEAD, THE COURT REMANDS FOR AN ENTIRELY NEW
PROCEEDING TO CONSTRUE NOT ONLY THE CONTRACT BROUGHT BEFORE THE BOARD
IN THIS CASE, BUT ALSO THE CONTRACT OF A THIRD PARTY WHICH HAS NEVER
INVOKED THE BOARD'S JURISDICTION, WHICH IS NOT A PARTY AND WHICH CAN BE
COMPELLED TO BECOME A PARTY ONLY BY THIS COURT'S GLOSS ON THE STATUTE,
AND IN ADDITION TO APPLY IN THIS NEW PROCEEDING A NOVEL SUBSTANTIVE
PRINCIPLE FORBIDDING FEATHERBEDDING. 

ACTUALLY, THE RAILROAD'S COMPLAINT IS NOT THAT THE BOARD REFUSED TO
CONSIDER THE CLERKS' CONTRACT, OR RELEVANT USAGE AND PRACTICE.  IT IS
THAT THE BOARD DID NOT DECIDE MATTERS OUTSIDE THE ISSUES SUBMITTED TO
IT BY THE PARTIES AND THE STATUTE.  AND DESPITE SUGGESTIONS THAT PITNEY
WAS VIOLATED, THE COURT'S REAL POINT - AS IT IS RESPONDENT'S - IS THAT
THE BOARD SHOULD, IN THIS PROCEEDING BETWEEN THE TELEGRAPHERS' UNION
AND THE CARRIER, ALSO DECIDE THE RIGHTS OF THE CLERKS' UNION - AND
SHOULD DO SO BY AWARDING THE JOBS TO ONE UNION OR THE OTHER. 

THE COURT ALSO REFERS TO SLOCUM V. DELAWARE, L.&W.R. CO., 339 U.S.
239 (1950).  THIS CASE IS OF NO ASSISTANCE WHATEVER.  THE RAILROAD
FILED AN ACTION IN A STATE COURT FOR A DECLARATORY JUDGMENT AS TO WHICH
OF TWO UNIONS WAS ENTITLED UNDER ITS CONTRACT WITH THE RAILROAD TO HAVE
ITS MEMBERS PERFORM DISPUTED JOBS.  BOTH UNIONS WERE JOINED AS
DEFENDANTS.  THIS COURT AGAIN HELD THAT THE COURTS SHOULD NOT INTERPRET
THE UNIONS' CONTRACTS BECAUSE THIS QUESTION IS FOR DETERMINATION BY THE
ADJUSTMENT BOARD, "A CONGRESSIONALLY DESIGNATED AGENCY PECULARLY
COMPETENT IN THIS FIELD."  339 U.S., AT 244. 

THERE IS NO DOUBT OF THE SOUNDNESS OF EITHER PITNEY OF SLOCUM.  THE
RAILROAD ADJUSTMENT BOARD DOES HAVE EXCLUSIVE, PRIMARY JURISDICTION TO
DETERMINE CONTRACT DISPUTES BETWEEN A UNION AND A CARRIER.  AND THE
BOARD MUST DO SO IN LIGHT OF "EVIDENCE AS TO USAGE, PRACTICE AND
CUSTOM" AND OF ALLEGEDLY OVERLAPPING CONTRACTS WITH OTHER UNIONS.  BUT
THE BOARD'S AUTHORITY IS SPECIFIC AND LIMITED.  THE RAILWAY LABOR ACT
NARROWLY DEFINES THE ADJUSTMENT BOARD'S POWER.  THE BOARD  (FN2)  HEARS
A DISPUTE (A) "BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER
OR CARRIERS," (B) "GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY,
RULES, OR WORKING CONDITIONS," (C) IF THE DISPUTE IS REFERRED TO IT "BY
PETITION OF THE PARTIES OR BY EITHER PARTY."  IT RENDERS "AWARDS,"
WHICH ARE "FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE."   (FN3)
THAT IS THE SUM TOTAL OF POWERS OVER DISPUTES VESTED IN THE RAILROAD
ADJUSTMENT BOARD.  (FN4) 

THE RAILROAD ADJUSTMENT BOARD IS QUITE A DIFFERENT AGENCY FROM
NATIONAL LABOR RELATIONS BOARD, FROM WHOSE SOMEWHAT ANALOGOUS ROLE IN
OTHER INDUSTRIES THE COURT APPEARS TO DERIVE SOME COMFORT.  (FN5)  THE
NLRB HAS BROAD JURISDICTION OVER "UNFAIR LABOR PRACTICES."  SECTION
10(K) OF THE NATIONAL LABOR RELATIONS ACT (49 STAT. 453, AS AMENDED, 61
STAT. 146, 29 U.S.C.  SEC 160(K)) PROVIDES THAT WHENEVER IT IS CHARGED
THAT ANY PERSON HAS ENGAGED IN THE UNFAIR LABOR PRACTICE OF A STRIKE TO
ENFORCE A UNION'S DEMAND IN A JURISDICTIONAL CONTROVERSY WITH ANOTHER
UNION, THE NLRB IS "EMPOWERED AND DIRECTED TO HEAR AND DETERMINE THE
DISPUTE OUT OF WHICH SUCH UNFAIR LABOR PRACTICE SHALL HAVE ARISEN." 
UNDER THIS SECTION, THIS COURT HAS IN THE PAST REQUIRED THE NLRB TO
TAKE ACTION OF THE KIND WHICH, IN THE PRESENT CASE, IT FOR THE FIRST
TIME REQUIRES OF THE RAILROAD ADJUSTMENT BOARD.  THE COURT HAS HELD
THAT THE NLRB CANNOT OBTAIN ENFORCEMENT OF A CEASE-AND-DESIST ORDER
WHICH DETERMINES ONLY THAT THE RESPONDENT UNION IS NOT ENTITLED TO THE
WORK IN DISPUTE UNDER ITS CERTIFICATION OR COLLECTIVE BARGAINING
AGREEMENT.  THE COURT REQUIRED THAT THE BOARD GO FURTHER AND DECIDE
WHICH OF THE TWO CONTENDING UNIONS IS ENTITLED TO THE WORK AND "THEN
SPECIFICALLY TO AWARD SUCH TASKS IN ACCORDANCE WITH ITS DECISION." 
LABOR BOARD V. RADIO ENGINEERS, 364 U.S. 573, 586 (1961).  (FN6)  THE
DIFFICULTY, HOWEVER, IS THAT SEC. 10(K) HAS NO COUNTERPART IN THE
RAILWAY LABOR ACT.  NO SUCH POWER EXISTS IN THE RAILROAD ADJUSTMENT
BOARD, NOR DOES THE STATUTE IMPOSE ANY COMPARABLE DUTY UPON IT. 

THE BOARD IS ESSENTIALLY A PERMANENT BILATERAL ARBITRATION
INSTITUTION CREATED BY STATUTE FOR SETTLING DISPUTES ARISING IN THE
CONTEXT OF AN ESTABLISHED CONTRACTUAL RELATIONSHIP.  (FN7)  ITS NATURE
IS ILLUSTRATED BY THE PROVISIONS OF THE ACT RELATING TO AWARDS MADE BY
THE BOARD.  THESE ARE COUCHED IN TERMS WHICH ASSUME A GRIEVANCE OR
CLAIM ASSERTED BY AN EMPLOYEE OR A UNION AGAINST A CARRIER.  THE
PROVISIONS REFER ONLY TO CARRIERS, NOT TO OTHER UNIONS.  FOR EXAMPLE,
SEC 3 FIRST (O) STATES THAT "IN CASE OF AN AWARD  ...  IN FAVOR OF
PETITIONER  ...  THE BOARD SHALL MAKE AN ORDER, DIRECTED TO THE
CARRIER, TO MAKE THE AWARD EFFECTIVE  ...  ."  THE ONLY PROVISION IN
THE ACT FOR ENFORCEMENT OF AWARDS IS CAST IN TERMS OF THE CARRIER:  "IF
A CARRIER DOES NOT COMPLY WITH AN ORDER ...  ."  SECTION 3 FIRST (P). 
NOWHERE IN THE ACT IS THERE A SYLLABLE WHICH WOULD INDICATE THE
INTENTION THAT THE BOARD IS EMPOWERED TO MAKE AWARDS AS BETWEEN THE
CLAIMS OF CONTENDING UNIONS.  THE ACT IS AS CLEAR AS CAN BE THAT THE
ADJUSTMENT BOARD'S FUNCTION IS TO ACT IN DISPUTES BETWEEN A CARRIER AND
A UNION OR EMPLOYEE, TO ADJUDICATE GRIEVANCES OF EMPLOYEES OR THEIR
ORGANIZATIONS AGAINST THE CARRIER, AND TO PASS UPON CONTROVERSIES AS TO
THE MEANING OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN A CARRIER
AND A UNION.  (FN8)  THE BOARD IS NOT COMPARABLE IN SCOPE, FUNCTION,
CAPABILITY OR AUTHORITY TO THE NATIONAL LABOR RELATIONS BOARD.  (FN9)
IT HAS NO AUTHORITY OVER "UNFAIR LABOR PRACTICES" IN GENERAL.  IT HAS
NO POWER COMPARABLE TO THAT GIVEN THE NLRB BY SEC 10(K) OF THE NATIONAL
LABOR RELATIONS ACT TO "HEAR AND DETERMINE" JURISDICTIONAL DISPUTES; IT
MAY MAKE A DECISION AFFECTING A JURISDICTIONAL DISPUTE, BUT ONLY IF IT
COMES TO THE BOARD IN THE LIMITED AND CONSTRICTED FORM OF A DISPUTE
BETWEEN A UNION AND A CARRIER AS TO THE MEANING AND APPLICATION OF
THEIR AGREEMENT. 

THE ACT DOES NOT GIVE THE BOARD POWER TO COMPEL A UNION WHICH IS
AFFECTED BY A CONTRACT DISPUTE BETWEEN ANOTHER UNION AND A CARRIER TO
PARTICIPATE IN OR BE BOUND BY THE PROCEEDING.  THIS IS "ONE THING THAT
IS UNQUESTIONED" ACCORDING TO THE OPINION OF THIS COURT IN WHITEHOUSE
V. ILLINOIS CENT. R. CO., 349 U.S. 366, 372 (1955).  (FN10)  IN THAT
CASE, A DISPUTE HAD ARISEN BETWEEN THE TELEGRAPHERS AND THE RESPONDENT
RAILROAD BECAUSE THE RAILROAD EMPLOYED MEMBERS OF THE CLERKS' UNION FOR
JOBS WHICH THE TELEGRAPHERS CLAIMED SHOULD HAVE BEEN ALLOTTED TO ITS
MEMBERS UNDER ITS COLLECTIVE BARGAINING AGREEMENT WITH THE RAILROAD. 
IN DUE COURSE, THE TELEGRAPHERS SUBMITTED THE DISPUTE TO THE RAILROAD
ADJUSTMENT BOARD.  BEFORE A DECISION WAS ANNOUNCED BY THE BOARD, THE
RAILROAD BROUGHT AN ACTION IN THE UNITED STATES DISTRICT COURT TO
COMPEL THE BOARD TO NOTIFY THE CLERKS, ASSERTING THAT OTHERWISE THE
RAILROAD MIGHT HAVE TO FACE A SIMILAR CLAIM FROM THE CLERKS.  THIS
COURT HELD THAT THE ACTION WAS PREMATURE; BUT IT POINTED OUT THAT "ONE
THING IS UNQUESTIONED.  WERE NOTICE GIVEN TO CLERKS THEY COULD BE
INDIFFERENT TO IT; THEY WOULD BE WITHIN THEIR LEGAL RIGHTS TO REFUSE TO
PARTICIPATE IN THE PRESENT PROCEEDING."  349 U.S., AT 372.  IT SAID,
FLATLY, THAT "THE BOARD HAS JURISDICTION OVER THE ONLY NECESSARY
PARTIES TO THE PROCEEDING (I.E., THE TELEGRAPHERS' UNION) AND OVER THE
SUBJECT MATTER."  ID., AT 373.  IN SUBSTANCE, THE COURT IN THE PRESENT
CASE REPUDIATES WHITEHOUSE FOR REASONS, NOT OF LAW, BUT OF ASSUMED
PRACTICAL ADMINISTRATIVE SYMMETRY AND ITS OWN CONCEPTIONS AS TO WHAT IS
FAIR IN A COMPLEX INDUSTRIAL SITUATION.  LABOR RELATIONS ARE NOT
SUSCEPTIBLE OF REDUCTION TO SUCH SIMPLICITIES; AND WITH ALL DEFERENCE
THIS COURT SHOULD FEAR TO TREAD THIS PATH.    THIS IS MUCH MORE THAN A
PROCEDURAL MATTER.  IT IS EVEN MORE THAN WHETHER THE CLERKS CAN BE
SUBJECTED TO A PROCEEDING TO WHICH THEY ASSERT THEY ARE STRANGERS AND
TO WHICH CONGRESS DID NOT INTEND THAT THEY BE SUBJECTED.  THE COURT
TODAY RULES THAT WHATEVER THE COLLECTIVE BARGAINING AGREEMENTS PROVIDE
REGARDLESS OF THEIR PROVISIONS, AND OF THE UNDERSTANDING OF THE
PARTIES - THE BOARD MUST AWARD THE DISPUTED WORK TO ONE UNION OR THE
OTHER, AND THAT IT CANNOT PROVIDE A REMEDY TO MEMBERS OF BOTH, EVEN IF
THEIR CONTRACTS SHOULD SO DEMAND. 

THIS MAY SOUND EMINENTLY REASONABLE AT FIRST HEARING.  BUT IT MAY BE
BOTH UNFAIR AND HIGHLY DISRUPTIVE.  CERTAINLY, THERE IS NOT A LINE, A
WORD, IN THE RAILWAY LABOR ACT WHICH SUPPORTS IT. LET US SUPPOSE, FOR
EXAMPLE, IN THE PRESENT SITUATION THAT EACH IBM MACHINE REQUIRED ONE
OPERATOR, AND THAT THE MACHINE AND THE ONE OPERATOR PERFORMED BOTH
CLERICAL AND TELEGRAPHIC SERVICES, DISPLACING A TELEGRAPHER AND A
CLERK.  I KNOW OF ABSOLUTELY NO WARRANT FOR THE COURT'S STATEMENT THAT
THE BOARD MUST "SETTLE THE ENTIRE DISPUTE" BY DETERMINING "WHICH UNION
HAS THE RIGHT TO THE JOB" EVEN IF "BOTH UNIONS  ...  UNDER THEIR
SEPARATE AGREEMENTS, HAVE THE RIGHT TO PERFORM THE NEW JOB  ...  ."  ON
THE CONTRARY, REGARDLESS OF WHAT THE CLERKS' CONTRACT PROVIDES,  (FN11)
IF THE TELEGRAPHERS' CONTRACT ALSO ESTABLISHES THEIR RIGHT TO THE JOB
WHICH IS ENTIRELY CONCEIVABLE - THE TELEGRAPHERS ARE ENTITLED TO
COMPENSATION.  IT IS ENTIRELY POSSIBLE THAT SINCE THE BOARD, AS I HAVE
DISCUSSED, IS LIMITED TO CONSTRUING AND APPLYING THE AGREEMENTS BETWEEN
EACH UNION AND THE CARRIER, IT MAY INDEED FIND THAT IT HAS TO REQUIRE
PAYMENT TO MEMBERS OF ONE UNION FOR JOBS ACTUALLY PERFORMED BY MEMBERS
OF THE OTHER UNION.  IN THAT EVENT, A SENSIBLE REMEDY WOULD HAVE TO
AWAIT NEGOTIATION BETWEEN THE UNION OR UNIONS AND THE CARRIER TO
ELIMINATE THE OVERLAP AND FEATHERBEDDING.   (FN12)  BUT I REPEAT - THE
BOARD'S TASK IS TO CONSTRUE AND APPLY THE AGREEMENTS, NOT TO REWRITE
THEM, EVEN TO ELIMINATE OVERLAPS AND DUPLICATIONS; NOR IS IT THE
FUNCTION OF THIS COURT TO ADD NEW POWERS TO THOSE VESTED IN THE BOARD
BY CONGRESS, OR TO IMPOSE UPON THE INTRICATE AND TECHNICAL CONTRACTS OF
RAILWAY LABOR A NEW AND UNAUTHORIZED SUBSTANTIVE PRINCIPLE. 

I WOULD REVERSE AND REMAND FOR FURTHER PROCEEDINGS IN THE DISTRICT
COURT, CONSISTENT WITH THE VIEWS EXPRESSED HEREIN, WITH RESPECT TO THE
TELEGRAPHERS' PRAYER FOR ENFORCEMENT OF THE BOARD'S AWARD. 

FN1  THE COURT OF APPEALS' OPINION ASSERTS THAT THE BOARD'S RULES OF
EVIDENCE EXCLUDED OTHER CONTRACTS, AND THAT THE BOARD DEALT WITH THE
CASE AS IF THE CLERKS' CONTRACT DID NOT EXIST.  THERE IS NOTHING IN THE
RECORD WHICH SUGGESTS THAT AT ANY TIME, IN ANY WAY, THE BOARD EXCLUDED
REFERENCES TO THE CLERKS' CONTRACT OR TREATED IT AS IRRELEVANT.  IF THE
COURT OF APPEALS WERE CORRECT AS TO THE BOARD'S RULES, THOSE RULES
WOULD PLAINLY BE CONTRARY TO LAW AND COMMON-SENSE EVIDENTIARY
PRINCIPLES.   THE RAILROAD'S SUBMISSION TO THE BOARD, IN DEMANDING THAT
NOTICE BE GIVEN THE CLERKS' UNION (AS IT WAS), SPECIFICALLY INVOKED THE
CLERKS' CONTRACT, AND STATED THAT THE RELIEF SOUGHT BY THE TELEGRAPHERS
"WOULD ABROGATE THE AGREEMENT NEGOTIATED BETWEEN THE CARRIER AND THE
CLERKS' ORGANIZATION  ...  ." 

FN2  ACTUALLY, THE BOARD FUNCTIONS IN DIVISIONS, EACH RESPONSIBLE FOR
A SPECIFIED GROUP OF TRADES WITHIN THE RAILROAD WORLD.  SECTION 3 FIRST
(H). 

FN3  SECTIONS 3 FIRST (I), (M) AS AMENDED BY THE ACT OF JUNE 20, 1966
(80 STAT. 208).  PRIOR TO THIS AMENDMENT "MONEY AWARDS" WERE EXCLUDED
FROM THE SCOPE OF THE QUOTED LANGUAGE. 

FN4  THERE ARE A FEW MINOR EXCEPTIONS NOT RELEVANT HERE.  FOR
EXAMPLE, THE BOARD CAN INTERPRET ITS OWN AWARDS.  SECTION 3 FIRST (M). 

FN5  IN WHITEHOUSE V. ILLINOIS CENT. R. CO., 349 U.S. 366 (1955),
THIS COURT CAUTIONED AGAINST ANALOGIES DRAWN FROM OTHER INDUSTRIES TO
RAILROAD PROBLEMS:  "BOTH ITS HISTORY AND THE INTERESTS IT GOVERNS SHOW
THE RAILWAY LABOR ACT TO BE UNIQUE.  'THE RAILROAD WORLD IS LIKE A
STATE WITHIN A STATE.  ITS POPULATION OF SOME THREE MILLION, IF WE
INCLUDE THE FAMILES OF WORKERS, HAS ITS OWN CUSTOMS AND ITS OWN
VOCABULARY, AND LIVES ACCORDING TO RULES OF ITS OWN MAKING.'  GARRISON,
THE NATIONAL RAILROAD ADJUSTMENT BOARD:  A UNIQUE ADMINISTRATIVE
AGENCY, 46 YALE L.J. 567, 568-569."  349 U.S., AT 371. 

FN6  BUT CF. CAREY V. WESTINGHOUSE CORP., 375 U.S. 261 (1964), IN
WHICH THE COURT HELD THAT A UNION COULD OBTAIN A COURT ORDER TO COMPEL
ARBITRATION OF A SIMILAR TYPE OF DISPUTE, UNDER AN ARBITRATION
PROVISION OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN ITSELF AND THE
EMPLOYER, DESPITE THE FACT THAT THE ARBITRATION PROCEEDING WOULD NOT
BIND THE OTHER CONTENDING UNION. 

FN7  THE BOARD HAS NO JURISDICTION OVER SO-CALLED "MAJOR" DISPUTES
WHICH ARE OUTSIDE THE COLLECTIVE BARGAINING CONTRACT FRAMEWORK - FOR
EXAMPLE, A DISPUTE AS TO WHETHER THE CONTRACT SHOULD BE CHANGED.  SEE
ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S. 711, 722-728 (1945), ADHERED TO
ON REHEARING, 327 U.S. 661 (1946).  TO THE EXTENT THAT RESOLUTION OF
SUCH DISPUTES IS SUBJECTED TO A LEGAL STRUCTURE, IT IS THE NATIONAL
MEDIATION BOARD, NOT THE RAILROAD ADJUSTMENT BOARD, WHICH IS THE
RESPONSIBLE FEDERAL AGENCY UNDER THE RAILWAY LABOR ACT. 

FN8  THE BOARD, WITH ITS PECULIAR BIPARTISAN, PRIVATE COMPOSITION,
SECS 3 FIRST (A)-(H), IS PERHAPS SUITED TO THIS TASK, BUT ONE MIGHT
QUESTION WHETHER IT WOULD BE APPROPRIATE FOR A LARGER ROLE.  FOR
INSTANCE, SINCE EACH DIVISION OF THE BOARD IS COMPOSED OF AN EQUAL
NUMBER OF RAILROAD UNION AND CARRIER REPRESENTATIVES, AND MAKES AWARDS
BY MAJORITY VOTE, IF THE UNION REPRESENTATIVES ON THE DIVISION WERE
SPLIT - IF, FOR EXAMPLE, EITHER UNION HAD A REPRESENTATIVE ON THE
DIVISION WHO DISAGREED WITH THE OTHER UNION REPRESENTATIVES ON THE
MERITS OF THE DISPUTE - THE CARRIER REPRESENTATIVES WOULD THEN HAVE
CONTROLLING VOTING POWER AND COULD IN EFFECT ALLOCATE THE WORK TO
WHICHEVER UNION THEY CHOSE. 

FN9  THE TWO BOARDS ARE UTTERLY DIFFERENT.  SOME OF THE DIFFERENCES
ARE ADVERTED TO IN THE TEXT, AND OTHERS ARE SUGGESTED BY NN. 7 AND 8,
SUPRA.  THE ESSENTIAL DIFFERENCE IS BETWEEN A PERMANENT
INSTITUTIONALIZED ARBITRATOR FOR SETTLING DISPUTES ARISING FROM A
CONTRACTUAL RELATIONSHIP, AND AN ADMINISTRATIVE AGENCY ESTABLISHED TO
IMPLEMENT VARIOUS DEFINED PUBLIC POLICIES SPECIFIED BY CONGRESS. 

FN10  I SUPPOSE THAT IF THIS COURT SAYS THAT THE BOARD HAS POWER TO
SUBJECT ANOTHER UNION TO THE PROCEEDINGS, THAT WOULD END THE MATTER. 
BUT THE EFFECTIVENESS OF OUR IPSE DIXIT WOULD NOT JUSTIFY IT. 

FN11  OF COURSE, THE CLERKS' CONTRACT MAY BE RELEVANT TO CONSTRUCTION
OF THE TELEGRAPHERS' CONTRACT, UNDER THE PITNEY CASE. 

FN12  UNDER THE RAILWAY LABOR ACT, SUCH CONTRACTUAL RENEGOTIATION
WOULD BE A "MAJOR" DISPUTE, SUBJECT TO THE JURISDICTION OF THE
MEDIATION BOARD, NOT THE ADJUSTMENT BOARD.  SEE N. 7, SUPRA.  SEE ALSO
TELEGRAPHERS V. CHICAGO & N.W.R. CO., 362 U.S. 330 (1960), WHERE THE
COURT UPHELD THE TELEGRAPHERS' RIGHT TO STRIKE TO COMPEL BARGAINING ON
A PROPOSED CONTRACT CHANGE WHICH WOULD HAVE PREVENTED THE RAILROAD FROM
ABOLISHING ANY POSITION IN EXISTENCE BEFORE A CERTAIN DATE.  THE COURT
HELD THIS WAS A "MAJOR DISPUTE" COVERING A LEGITIMATE SUBJECT OF
COLLECTIVE BARGAINING WITHIN THE CONTEMPLATION OF THE RAILWAY LABOR
ACT, AND THEREFORE WITHIN THE ANTI-INJUNCTION PROVISIONS OF SECS 4, 8
AND 13(C) OF THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, 72, 73(1932), 29
U.S.C. SECS 104, 108, 113(C).  IT REJECTED THE RAILROAD'S ARGUMENT THAT
THE UNION'S DEMAND DID NOT CREATE A LEGITIMATE "LABOR DISPUTE" WITHIN
NORRIS-LAGUARDIA BECAUSE IT SOUGHT TO PERPETUATE "WASTEFUL" AND
"UNNECESSARY" JOBS. 
..END :




















CANADA PACKERS V. A.,T.&S.F.R. CO. 385 U.S. 182 


NO. 11.  ARGUED NOVEMBER 8-9, 1966.  - DECIDED DECEMBER 5, 1966.  - 342
F.2D 563, REVERSED. 


WHERE A DOMESTIC RAILROAD ENTERS INTO A JOINT THROUGH INTERNATIONAL
RATE COVERING TRANSPORTATION FROM THE UNITED STATES TO CANADA, THE
INTERSTATE COMMERCE COMMISSION HAS JURISDICTION IN A REPARATIONS
PROCEEDING TO DETERMINE THE REASONABLENESS OF THE JOINT THROUGH RATE
AND TO ORDER THE CARRIER PERFORMING THE DOMESTIC SERVICE TO PAY
REPARATIONS IN THE ENTIRE AMOUNT BY WHICH THAT RATE IS UNREASONABLE. 
NEWS SYNDICATE CO. V. NEW YORK CENTRAL R. CO., 275 U.S. 179, FOLLOWED. 

CANADA PACKERS, LTD. V. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

THIS CASE CONCERNS THE POWER OF THE INTERSTATE COMMERCE COMMISSION IN
REPARATIONS PROCEEDINGS TO DETERMINE THE REASONABLENESS OF A JOINT
THROUGH INTERNATIONAL FREIGHT RATE.  THE AMERICAN RAILROAD RESPONDENTS
AND THEIR CONNECTING CARRIERS DELIVERED 131 CARS OF POTASH FROM
CARLSBAD AND LOVING, NEW MEXICO, TO PETITIONER'S PLANTS IN CANADA. 
PETITIONER WAS CHARGED AND IT PAID A JOINT THROUGH INTERNATIONAL RATE
WHICH IT LATER ATTACKED AS UNREASONABLE IN A REPARATIONS PROCEEDING
BEFORE THE COMMISSION.  FINDING THE RATE TO BE UNREASONABLE, THE
COMMISSION ORDERED REPARATIONS IN THE AMOUNT OF THE DIFFERENCE BETWEEN
THE RATE CHARGED AND THE RATE WHICH WOULD HAVE BEEN REASONABLE AT THE
TIME.  RESPONDENTS REFUSED TO PAY PART OF THIS AMOUNT ON THE THEORY
THAT IT REPRESENTED AN ALLEGED OVERCHARGE FOR THE CANADIAN LEG OF THE
TRIP OVER WHICH THE COMMISSION HAD NO JURISDICTION UNDER THE APPLICABLE
STATUTE.  THIS ACTION FOLLOWED IN THE DISTRICT COURT TO COLLECT THE
UNPAID AMOUNT.  THE DISTRICT COURT FOUND FOR THE PETITIONER, THE COURT
OF APPEALS REVERSED, 342 F.2D 563, AND WE GRANTED CERTIORARI, 383 U.S.
906. 

THE PROVISIONS OF THE INTERSTATE COMMERCE ACT APPLY NOT ONLY TO
TRANSPORTATION WITHIN THE UNITED STATES BUT TO TRANSPORTATION FROM OR
TO ANY PLACE IN THE UNITED STATES TO OR FROM A FOREIGN COUNTRY "BUT
ONLY INSOFAR AS SUCH TRANSPORTATION  ...  TAKES PLACE WITHIN THE UNITED
STATES."  24 STAT. 379, AS AMENDED, 49 U.S.C. SEC. 1(1).  THE COURT OF
APPEALS HELD THAT THE COMMISSION IN THIS CASE WAS WITHOUT JURISDICTION
TO DETERMINE THE REASONABLENESS OF FREIGHT RATES FOR TRANSPORTATION
TAKING PLACE IN CANADA AND HENCE WAS WITHOUT POWER TO ORDER REPARATIONS
WITH RESPECT TO THE CANADIAN PORTION OF THE TRIP.  THE RESPONDENTS AND
THE UNITED STATES, THE LATTER DIFFERING WITH THE COMMISSION IN THIS
CASE, TAKE A SIMILAR VIEW.  AS AN ORIGINAL MATTER THERE MIGHT WELL BE
CONSIDERABLE MERIT IN THIS POSITION.  BUT THE CONTRARY VIEW OF THE
COMMISSION IS ONE OF LONG STANDING, SEE BLACK HORSE TOBACCO CO. V.
ILLINOIS CENTRAL R. CO., 17 I.C.C. 588 (1910), AND CITIZENS GAS & COKE
UTILITY V. CANADIAN NAT. RYS., 325 I.C.C. 527 (1965), AND ONE WHICH
THIS COURT HAS UPHELD ON MORE THAN ONE OCCASION.  NEWS SYNDICATE CO. V.
NEW YORK CENTRAL R. CO., 275 U.S. 179, SQUARELY HELD THAT WHERE A
CARRIER PERFORMING TRANSPORTATION WITHIN THE UNITED STATES ENTERS INTO
A JOINT THROUGH INTERNATIONAL RATE COVERING TRANSPORTATION IN THE
UNITED STATES AND ABROAD, THE COMMISSION DOES HAVE JURISDICTION TO
DETERMINE THE REASONABLENESS OF THE JOINT THROUGH RATE AND TO ORDER THE
CARRIER PERFORMING THE DOMESTIC SERVICE TO PAY REPARATIONS IN THE
AMOUNT BY WHICH THAT RATE IS UNREASONABLE.  LEWIS-SIMAS-JONES CO. V.
SOUTHERN PACIFIC CO., 283 U.S. 654, AND GREAT NORTHER R. CO. V.
SULLIVAN, 294 U.S. 458, ARE IN ACCORD.  THE COURT OF APPEALS AND
RESPONDENTS WOULD DISTINGUISH THESE CASES, BUT WE THINK THE DIFFERENCES
RELIED ON ARE INSUBSTANTIAL.  INDEED, THE UNITED STATES QUITE CANDIDLY
REQUESTS THAT WE RECONSIDER THESE OLDER CASES AND SO NARROW THE POWERS
OF THE COMMISSION WITH RESPECT TO JOINT THROUGH INTERNATIONAL RATES. 
IT IS NOT SHOWN, HOWEVER, THAT THE LONG-STANDING CONSTRUCTION OF THE
STATUTE BY BOTH THE COMMISSION AND THIS COURT HAS PRODUCED ANY
PARTICULARLY UNFORTUNATE CONSEQUENCES AND CONGRESS, WHICH COULD EASILY
CHANGE THE RULE, HAS NOT YET SEEN FIT TO INTERVENE.  IN THESE
CIRCUMSTANCES, WE SHALL NOT DISTURB THE CONSTRUCTION PREVIOUSLY GIVEN
THE STATUTE BY THIS COURT, AND THE DECISION OF THE COURT OF APPEALS
MUST BE REVERSED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

AN ACT OF CONGRESS GIVES THE INTERSTATE COMMERCE COMMISSION
JURISDICTION OVER TRANSPORTATION FROM OR TO ANY PLACE IN THE UNITED
STATES TO OR FROM A FOREIGN COUNTRY "BUT ONLY INSOFAR AS SUCH
TRANSPORTATION  ...  TAKES PLACE WITHIN THE UNITED STATES."  24 STAT.
379, AS AMENDED, 49 U.S.C. SEC. 1(1).  HOW THAT CAN BE READ, "WHETHER
OR NOT SUCH TRANSPORTATION  ...  TAKES PLACE WITHIN THE UNITED STATES"
REMAINS A MYSTERY.  NEWS SYNDICATE CO. V. NEW YORK CENTRAL R. CO., 275
U.S. 179, AND LEWIS-SIMAS-JONES CO. V. SOUTHERN PACIFIC CO., 283 U.S.
654, ACTUALLY DECIDED SOMETHING LESS.  IN NEWS SYDICATE THERE WAS A
THROUGH RATE FROM A POINT IN CANADA TO NEW YORK CITY; BUT THE CARRIER
HAD FAILED TO ESTABLISH A RATE FROM THE INTERNATIONAL BORDER TO NEW
YORK CITY.  THE COURT REFUSED TO LET THE JURISDICTION OF THE COMMISSION
BE DEFEATED IN THAT WAY AND ALLOWED IT TO DETERMINE THE REASONABLENESS
OF THE THROUGH RATE.  275 U.S., AT 187.  IN THE LEWIS-SIMAS-JONES CASE
THE COURT ALSO EMPHASIZED THAT NO TARIFF APPLICABLE "TO THE AMERICAN
PART OF THE TRANSPORTATION OF AN INTERNATIONAL SHIPMENT ON A THROUGH
BILL OF LADING" HAD BEEN ESTABLISHED "AS REQUIRED BY THE ACT."  283
U.S., AT 663.  THOSE CASES WERE EXPLAINED IN GREAT NORTHERN R. CO. V.
SULLIVAN, 294 U.S. 458, 462. 

"IN EACH, SHIPMENTS MOVED FROM AN ADJACENT COUNTRY INTO THE UNITED
STATES ON THROUGH RATES MADE BY JOINT ACTION OF THE PARTICIPATING
FOREIGN AND AMERICAN CARRIERS.  THE AMERICAN CARRIER, HAVING VIOLATED
THE ACT BY FAILURE TO FILE ANY TARIFF TO COVER ITS PART OF THE
TRANSPORTATION, COLLECTED FREIGHT CHARGES FOUND TO BE EXCESSIVE AND, AS
ONE OF TWO OR MORE JOINT TORT-FEASORS, WAS HELD LIABLE TO THE EXTENT
THAT THE CHARGES IT EXACTED WERE IN EXCESS OF WHAT THE COMMISSION
ASCERTAINED TO BE JUST AND REASONABLE.  BUT HERE THE CHARGES COLLECTED
WERE NOT EXCESSIVE, AND CONFESSEDLY THE SAME AMOUNTS LAWFULLY MIGHT
HAVE BEEN COLLECTED WITHOUT INJURY OR DAMAGE TO PLAINTIFF IF ONLY THE
CONNECTING CARRIERS HAD IMPOSED THE CHARGES BY MEANS OF 'JOINT' INSTEAD
OF THE 'COMBINATION' THROUGH RATES THAT THEY DID ESTABLISH." 

IN THE PRESENT CASE RATES FROM CARLSBAD AND LOVING, NEW MEXICO, TO
THE CANADIAN BORDER POINTS HAD BEEN ESTABLISHED.  300 I.C.C. 87.  THE
ISSUES PRESENTED IN NEWS SYNDICATE AND LEWIS-SIMAS-JONES ARE THEREFORE
NOT OFFERED HERE.  STARE DECISIS IS AN IMPORTANT PRINCIPLE IN DEALING
WITH STATUTORY LAW, (FN1)  THOUGH EVEN SO WE HAVE NOT ALWAYS PLACED "ON
THE SHOULDERS OF CONGRESS THE BURDEN OF THE COURT'S OWN ERROR." 
GIROUARD V. UNITED STATES, 328 U.S. 61, 70.  (FN2)  AS WE SAID IN
TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118, 140-141: 

"THERE IS NO OCCASION HERE TO REGARD THE SILENCE OF CONGRESS AS MORE
COMMANDING THAN ITS OWN PLAINLY AND UNMISTAKABLY SPOKEN WORDS.  THIS IS
NOT A SITUATION WHERE CONGRESS HAS FAILED TO ACT AFTER HAVING BEEN
REQUESTED TO ACT OR WHERE THE CIRCUMSTANCES ARE SUCH THAT CONGRESS
WOULD ORDINARILY BE EXPECTED TO ACT  ...  .  TO FIND SIGNIFICANCE IN
CONGRESSIONAL NONACTION UNDER THESE CIRCUMSTANCES IS TO FIND
SIGNIFICANCE WHERE THERE IS NONE." 

AND SEE HELVERING V. HALLOCK, 309 U.S. 106, 119-122.  COMPARE MABEE
V. WHITE PLAINS PUBLISHING CO., 327 U.S. 178, 185.  NOR DO WE HAVE HERE
A PRECEDENT "AROUND WHICH, BY THE ACCRETION OF TIME AND THE RESPONSE OF
AFFAIRS, SUBSTANTIAL INTERESTS HAVE ESTABLISHED THEMSELVES."  HELVERING
V. HALLOCK, SUPRA, AT 119. 

MOREOVER, WE NEED NOT BE SLAVES TO A PRECEDENT BY TREATING IT AS
STANDING FOR MORE THAN IT ACTUALLY DECIDED NOR BY SUBTLY ERODING IT IN
SOPHISTICATED WAYS.  SEE RADIN, THE TRAIL OF THE CALF, 32 CORNELL L.Q.
137, 143 (1946).  IT IS ENOUGH THAT WE DO NOT APPROVE "OF THE DOCTRINAL
GENERALIZATION WHICH THE PREVIOUS COURT USED" (IBID.) AND CONFINE THE
PRECEDENT TO WHAT IT ACTUALLY DECIDED.  CERTAINLY WE SHOULD NOT EXTEND
THE RANGE OF A PRECEDENT BEYOND ITS GENERATING REASON, ESPECIALLY WHEN
ANOTHER POLICY, HERE THE PLAIN WORDS OF AN ACT OF CONGRESS, WILL BE
IMPAIRED BY DOING SO. 

I WOULD AFFIRM THIS JUDGMENT. 

FN1  "THE HOUSE OF LORDS NO LONGER REGARDS THE REASONING IN PREVIOUS
CASES AS SACROSANCT.  WITNESS ITS STRIKING DEPARTURE IN PUBLIC TRUSTEE
V. INLAND REVENUE COMMISSIONERS ((1960) A.C. 398) AND MIDLAND SILICONES
LTD. V. SCRUTTONS LTD. ((1962) A.C. 446.)  THOSE CASES SHOW THAT THE
HOUSE WILL NOT TREAT AS ABSOLUTELY BINDING ANY LINE OF REASONING IN A
PREVIOUS CASE WHICH WAS NOT NECESSARY TO THE DECISION:  BUT WILL REGARD
ITSELF AS AT LIBERTY TO DEPART FROM IT IF CONVINCED THAT IT WAS
WRONG."  PENN-TEXAS CORP. V. MURAT ANSTALT (1964) 2 Q.B. 647, 661. 

AND SEE (1966) C.L.Y. 9921: 

"THE LORD CHANCELLOR MADE THE FOLLOWING STATEMENT ON JULY 26, 1966,
ON BEHALF OF HIMSELF AND THE LORDS OF APPEAL IN ORDINARY: 

"THEIR LORDSHIPS REGARD THE USE OF PRECEDENT AS AN INDISPENSABLE
FOUNDATION UPON WHICH TO DECIDE WHAT IS THE LAW AND ITS APPLICATION TO
INDIVIDUAL CASES.  IT PROVIDES AT LEAST SOME DEGREE OF CERTAINTY UPON
WHICH INDIVIDUALS CAN RELY IN THE CONDUCT OF THEIR AFFAIRS, AS WELL AS
A BASIS FOR ORDERLY DEVELOPMENT OF LEGAL RULES. 

"THEIR LORDSHIPS NEVERTHELESS RECOGNISE THAT TOO RIGID ADHERENCE TO
PRECEDENT MAY LEAD TO INJUSTICE IN A PARTICULAR CASE AND ALSO UNDULY
RESTRICT THE PROPER DEVELOPMENT OF THE LAW.  THEY PROPOSE THEREFORE TO
MODIFY THEIR PRESENT PRACTICE AND, WHILE TREATING FORMER DECISIONS OF
THIS HOUSE AS NORMALLY BINDING, TO DEPART FROM A PREVIOUS DECISION WHEN
IT APPEARS RIGHT TO DO SO. 

"IN THIS CONNECTION THEY WILL BEAR IN MIND THE DANGER OF DISTURBING
RETROSPECTIVELY THE BASIS ON WHICH CONTRACTS, SETTLEMENTS OF PROPERTY
AND FISCAL ARRANGEMENTS HAVE BEEN ENTERED INTO AND ALSO THE ESPECIAL
NEED FOR CERTAINTY AS TO THE CRIMINAL LAW. 

"THIS ANNOUNCEMENT IS NOT INTENDED TO AFFECT THE USE OF PRECEDENT
ELSEWHERE THAN IN THIS HOUSE." 

SEE GENERALLY CROSS, STARE DECISIS IN CONTEMPORARY ENGLAND, 82 L.Q.
REV. 203 (1966). 

FN2  WE HAVE NOT BEEN RELUCTANT TO REVERSE OUR OWN ERRONEOUS
INTERPRETATION OF AN ACT OF CONGRESS.   SEE, E.G., HELVERING V.
HALLOCK, 309 U.S. 106; NYE V. UNITED STATES, 313 U.S. 33; TOUCEY V. NEW
YORK LIFE INS. CO., 314 U.S. 118; COMMISSIONER V. ESTATE OF CHURCH, 335
U.S. 632; JAMES V. UNITED STATES, 366 U.S. 213; SMITH V. EVENING NEWS
ASSN., 371 U.S. 195; LOCAL NO. 438 CONSTRUCTION & GENERAL LABORERS'
UNION V. CURRY, 371 U.S. 542, 552; FAY V. NOIA, 372 U.S. 391, 435. 
..END :















WATKINS V. CONWAY 385 U.S. 188 


NO. 65.  ARGUED NOVEMBER 9, 1966.  - DECIDED DECEMBER 5, 1966.  - 221
GA. 374, 144 S.E.2D 721, AFFIRMED. 


APPELLANT OBTAINED A JUDGMENT AGAINST APPELLEE IN FLORIDA, WHERE THE
STATUTE OF LIMITATIONS FOR DOMESTIC JUDGMENTS IS 20 YEARS.  FIVE YEARS
AND ONE DAY LATER HE SUED ON THAT JUDGMENT IN GEORGIA BUT WAS BARRED IN
THE TRIAL COURT BY A GEORGIA STATUTE PROVIDING THAT SUITS ON FOREIGN
JUDGMENTS SHALL BE BROUGHT "WITHIN FIVE YEARS AFTER SUCH JUDGMENTS HAVE
BEEN OBTAINED" (A LIMITATION PERIOD SHORTER THAN THAT FOR GEORGIA
DOMESTIC JUDGMENTS) DESPITE HIS CLAIM THAT THE STATUTE VIOLATED THE
FULL FAITH AND CREDIT AND EQUAL PROTECTION CLAUSES OF THE
CONSTITUTION.  THE GEORGIA SUPREME COURT AFFIRMED.  HELD:  SINCE THE
GEORGIA COURTS HAVE CONSTRUED THE STATUTE TO BAR SUIT ON A FOREIGN
JUDGMENT ONLY IF THE JUDGMENT CANNOT BE REVIVED IN THE STATE WHERE IT
WAS OBTAINED, ALL APPELLANT NEED DO IS RETURN TO FLORIDA, REVIVE HIS
JUDGMENT, AND COME BACK TO GEORGIA AND FILE SUIT WITHIN FIVE YEARS. 

WATKINS V. CONWAY. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THIS LITIGATION BEGAN WHEN APPELLANT WATKINS BROUGHT A TORT ACTION
AGAINST CONWAY IN A CIRCUIT COURT OF FLORIDA.  ON OCTOBER 5, 1955, THAT
COURT RENDERED A $25,000 JUDGMENT FOR APPELLANT.  FIVE YEARS AND ONE
DAY LATER, APPELLANT SUED UPON THIS JUDGMENT IN A SUPERIOR COURT OF
GEORGIA.  APPELLEE RAISED SEC 3-701 OF THE GEORGIA CODE AS A BAR TO THE
PROCEEDING: 

"SUITS UPON FOREIGN JUDGMENTS.  - ALL SUITS UPON JUDGMENTS OBTAINED
OUT OF THIS STATE SHALL BE BROUGHT WITHIN FIVE YEARS AFTER SUCH
JUDGMENTS SHALL HAVE BEEN OBTAINED." 

THE GEORGIA TRIAL COURT GAVE SUMMARY JUDGMENT FOR APPELLEE.  IN SO
DOING, IT REJECTED APPELLANT'S CONTENTION THAT SEC 3-701, WHEN READ
AGAINST THE LONGER LIMITATION PERIOD ON DOMESTIC JUDGMENTS SET FORTH IN
GA. CODE SECS 110-1001, 110-1002 (1935), WAS INCONSISTENT WITH THE FULL
FAITH AND CREDIT AND EQUAL PROTECTION CLAUSES OF THE FEDERAL
CONSTITUTION.  THE GEORGIA SUPREME COURT AFFIRMED, ALSO REJECTING
APPELLANT'S CONSTITUTIONAL CHALLENGE TO SEC. 3-701.  221 GA. 374, 144
S.E.2D 721 (1965).  WE NOTED PROBABLE JURISDICTION UNDER 28 U.S.C. SEC.
1257(2).  383 U.S. 941 (1966). 

ALTHOUGH APPELLANT LAYS HIS CLAIM UNDER TWO CONSTITUTIONAL
PROVISIONS, IN REALITY HIS COMPLAINT IS SIMPLY THAT GEORGIA HAS DRAWN
AN IMPERMISSIBLE DISTINCTION BETWEEN FOREIGN AND DOMESTIC JUDGMENTS. 
HE ARGUES THAT THE STATUTE IS UNDERSTANDABLE SOLELY AS A REFLECTION OF
GEORGIA'A DESIRE TO HANDICAP OUT-OF-STATE JUDGMENT CREDITORS.  IF
APPELLANT'S ANALYSIS OF THE PURPOSE AND EFFECT OF THE STATUTE WERE
CORRECT, WE MIGHT WELL AGREE THAT IT VIOLATES THE FEDERAL
CONSTITUTION.  FOR THE DECISIONS OF THIS COURT WHICH APPELLEE RELIES
UPON DO NOT JUSTIFY THE DISCRIMINATORY APPLICATION OF A STATUTE OF
LIMITATIONS TO FOREIGN ACTIONS.  (FN1) 

BUT THE INTERPRETATION WHICH THE GEORGIA COURTS HAVE GIVEN SEC 3-701
CONVINCES US THAT APPELLANT HAS MISCONSTRUED IT.  THE STATUTE BARS
SUITS ON FOREIGN JUDGMENTS ONLY IF THE PLAINTIFF CANNOT REVIVE HIS
JUDGMENT IN THE STATE WHERE IT WAS ORIGINALLY OBTAINED.  FOR THE
RELEVANT DATE IN APPLYING SEC. 3-701 IS NOT THE DATE OF THE ORIGINAL
JUDGMENT, BUT RATHER IT IS THE DATE OF THE LATEST REVIVAL OF THE
JUDGMENT.  FAGAN V. BENTLY, 32 GA. 534 (1861); BATY V. HOLSTON, 108 GA.
APP. 359, 133 S.E.2D 107 (1963).  IN THE CASE AT BAR, FOR EXAMPLE, ALL
APPELLANT NEED DO IS RETURN TO FLORIDA AND REVIVE HIS JUDGMENT.  (FN2)
HE CAN THEN COME BACK TO GEORGIA WITHIN FIVE YEARS AND FILE SUIT FREE
OF THE LIMITATIONS OF SEC 3-701. 

IT CAN BE SEEN, THEREFORE, THAT THE GEORGIA STATUTE HAS NOT
DISCRIMINATED AGAINST THE JUDGMENT FROM FLORIDA.  INSTEAD, IT HAS
FOCUSED ON THE LAW OF THAT STATE.  IF FLORIDA HAD A STATUTE OF
LIMITATIONS OF FIVE YEARS OR LESS ON ITS OWN JUDGMENTS, THE APPELLANT
WOULD NOT BE ABLE TO RECOVER HERE.  (FN3)  BUT THIS DISABILITY WOULD
FLOW FROM THE CONCLUSION OF THE FLORIDA LEGISLATURE THAT SUITS ON
FLORIDA JUDGMENTS SHOULD BE BARRED AFTER THAT PERIOD.  (FN4)  GEORGIA'S
CONSTRUCTION OF SEC 3-701 WOULD MERELY HONOR AND GIVE EFFECT TO THAT
CONCLUSION.  THUS, FULL FAITH AND CREDIT IS INSURED, RATHER THAN
DENIED, THE LAW OF THE JUDGMENT STATE.  SIMILARLY, THERE IS NO DENIAL
OF EQUAL PROTECTION IN A SCHEME THAT RELIES UPON THE JUDGMENT STATE'S
VIEW OF THE VALIDITY OF ITS OWN JUDGMENTS.  SUCH A SCHEME HARDLY
REFLECTS INVIDIOUS DISCRIMINATION.  AFFIRMED. 

FN1  THE CASE MOST DIRECTLY IN POINT, M'ELMOYLE V. COHEN, 13 PET.
312, UPHELD THE GEORGIA STATUTE WITH WHICH WE DEAL TODAY.  BUT THE
PARTIES IN THAT CASE DID NOT ARGUE THE STATUTE'S SHORTER LIMITATION FOR
FOREIGN JUDGMENTS AS THE GROUND OF ITS INVALIDITY.  INSTEAD, THE ISSUE
PRESENTED TO THIS COURT CONCERNED THE POWER OF THE STATES TO IMPOSE ANY
STATUTE OF LIMITATIONS UPON FOREIGN JUDGMENTS.  SEE ARGUMENT FOR
PLAINTIFF, 13 PET., AT 313-320.  THE LANGUAGE OF MR. JUSTICE WAYNE'S
OPINION - "MAY NOT THE LAW OF A STATE FIX DIFFERENT TIMES FOR BARRING
THE REMEDY IN A SUIT UPON A JUDGMENT OF ANOTHER STATE, AND FOR THOSE OF
ITS OWN TRIBUNALS," 13 PET., AT 328 - MUST BE READ AGAINST THIS
ARGUMENT.  AND, OF COURSE, THAT OPINION CANNOT STAND AGAINST AN EQUAL
PROTECTION CLAIM, SINCE IT WAS WRITTEN NEARLY 30 YEARS BEFORE THE
FOURTEENTH AMENDMENT WAS ADOPTED. 

NEITHER OF THE CASES CITED BY THE GEORGIA SUPREME COURT DICTATES THE
RESULT OF THIS CASE.  THE FIRST, METCALF V. WATERTOWN, 153 U.S. 671,
INVOLVED A WISCONSIN STATUTE WHICH PROVIDED A SHORTER LIMITATION FOR
FOREIGN, AS OPPOSED TO DOMESTIC, JUDGMENTS.  BUT THE HOLDING OF THE
CASE WAS MERELY THAT THIS STATUTE SHOULD BE CONSTRUED AS PLACING THE
SAME LIMITATION ON THE JUDGMENT OF A FEDERAL COURT SITTING IN WISCONSIN
AS WOULD APPLY TO A JUDGMENT OF A WISCONSIN STATE COURT.  THE OTHER
PRECEDENT CITED BY THE COURT BELOW, GREAT WESTERN TEL. CO. V. PURDY,
162 U.S. 329, DEALT WITH AN IOWA STATUTE OF LIMITATIONS ON JUDGMENTS
THAT PLACED THE SAME LIMITATION ON ORDERS OF FOREIGN AND DOMESTIC
COURTS. 

FN2  THE FLORIDA STATUTE OF LIMITATIONS ON DOMESTIC JUDGMENTS IS 20
YEARS.  FLA. STAT. ANN.  SEC. 95.11(1)(1960).  THUS, IT APPEARS THAT
APPELLANT STILL HAS AMPLE TIME TO REVIVE HIS JUDGMENT AND BRING IT BACK
TO GEORGIA.  SEE MASSEY V. PINEAPPLE ORANGE CO., 87 FLA. 374, 100 SO.
170 (1924); SPURWAY V. DYER, 48 F. SUPP. 255 (D.C.S.D. FLA. 1942). 
MOREOVER, APPELLANT CAN OBTAIN SUBSTITUTED SERVICE OF PROCESS OVER
APPELLEE IN HIS REVIVAL PROCEEDING.  FLA. STAT. ANN. SEC.
48.01(9)(1943). 

THE FLORIDA PROCEDURE FOR REVIVING JUDGMENTS IS SIMILAR TO THAT OF
ALABAMA - ALA. CODE, TIT. 7, SEC. 574(1960) - WHICH WAS HELD IN BATY V.
HOLSTON, 108 G. APP. 359, 133 S.E.2D 107 (1963), TO REVIVE A FOREIGN
JUDGMENT UNDER SEC 3-701. 

FN3  SUCH A SHORT STATUTE OF LIMITATIONS FOR DOMESTIC JUDGMENTS IS BY
NO MEANS A MATTER OF MERE SPECULATION.  SEE 2 FREEMAN, THE LAW OF
JUDGMENTS SEC 1076 (5TH ED. 1925). 

FN4  IF THE APPELLANT HELD A JUDGMENT FROM A STATE WHICH DID NOT
CONSIDER ITS JUDGMENTS TO BECOME DORMANT, SO THAT NO REVIVAL PROCEEDING
COULD BE BROUGHT, WE WOULD BE FACED WITH A DIFFERENT CASE.  SEE FRANK
V. WOLF, 17 GA. APP. 468, 87 S.E. 697 (1916). 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :






LONG V. IOWA 385 U.S. 192 


NO. 77.  ARGUED NOVEMBER 9, 1966.  - DECIDED DECEMBER 5, 1966.  -
REVERSED AND REMANDED. 


PETITIONER, AN IOWA STATE PRISONER, SOUGHT HABEAS CORPUS IN THE STATE
COURT, CLAIMING, INTER ALIA, DENIAL OF COUNSEL AT PRELIMINARY HEARING. 
AFTER A HEARING AT WHICH PETITIONER HAD NO COUNSEL, THE TRIAL COURT
FOUND AGAINST HIM ON THE FACTS.  THEREAFTER PETITIONER'S MOTIONS FOR
COUNSEL AND FOR A FREE TRANSCRIPT OF THE HABEAS CORPUS PROCEEDING FOR
USE ON APPEAL WERE DENIED BY THE TRIAL COURT ON THE GROUND THAT HABEAS
CORPUS IS A CIVIL ACTION.  THE IOWA SUPREME COURT REFUSED TO REVIEW THE
TRIAL COURT'S DENIALS OF THESE MOTIONS.  HELD:  THE STATE MUST FURNISH
THE INDIGENT PETITIONER WITH A COPY OF THE TRANSCRIPT, WHICH IS READILY
AVAILABLE, SINCE AN INDIGENT CANNOT BE DEPRIVED OF APPELLATE REVIEW OF
AN ADVERSE DECISION IN A POST-CONVICTION PROCEEDING AS ADEQUATE AS THAT
AFFORDED PRISONERS WHO CAN PURCHASE A TRANSCRIPT. 

LONG V. DISTRICT COURT OF IOWA IN AND FOR LEE COUNTY. 

CERTIORARI TO THE SUPREME COURT OF IOWA. 

PER CURIAM. 

PETITIONER WAS CONVICTED OF LARCENY AND SENTENCED ON OCTOBER 21,
1963, TO A TERM NOT TO EXCEED FIVE YEARS.  THIS CONVICTION WAS AFFIRMED
ON APPEAL TO THE SUPREME COURT OF IOWA (STATE V. LONG, 256 IOWA 1304,
130 N.W.2D 663 (1964)), AND PETITIONER IS CURRENTLY SERVING HIS
SENTENCE IN THE STATE PENITENTIARY.  ON JANUARY 13, 1965, PETITIONER
SOUGHT A WRIT OF HABEAS CORPUS IN THE DISTRICT COURT OF IOWA, LEE
COUNTY, AND CONTENDED, INTER ALIA, THAT HE HAD BEEN DENIED COUNSEL AT
THE PRELIMINARY HEARING AND THAT HE HIMSELF HAD BEEN INCOMPENTENT AT
THE TIME.  AFTER AN EVIDENTIARY HEARING AT WHICH PETITIONER WAS NOT
AFFORDED THE ASSISTANCE OF COURT-APPOINTED COUNSEL, THE DISTRICT COURT
FOUND AGAINST PETITIONER ON THE FACTS OF HIS CLAIMS.  (FN1)  PETITIONER
THEREUPON APPLIED TO THE DISTRICT COURT FOR APPOINTMENT OF COUNSEL AND
FOR A FREE TRANSCRIPT OF THE HABEAS CORPUS PROCEEDING, FOR USE ON
APPEAL.  THE DISTRICT COURT DENIED THESE MOTIONS ON THE FOLLOWING
GROUND:  "HABEAS CORPUS BEING A CIVIL ACTION THERE IS NO PROVISION IN
THE LAW FOR THE FURNISHING OF A TRANSCRIPT WITHOUT THE PAYMENT OF FEE,
OR FOR THE APPOINTMENT OF COUNSEL."  PETITIONER SOUGHT CERTIORARI TO
REVIEW THIS DECISION FROM THE SUPREME COURT OF IOWA.  CERTIORARI WAS
DENIED WITHOUT OPINION  (FN2)  BY THAT COURT.  (FN3)  ON PETITION FOR A
WRIT OF CERTIORARI TO THE SUPREME COURT OF IOWA, THIS COURT GRANTED THE
WRIT LIMITED SOLELY TO THE REFUSAL TO FURNISH PETITIONER, AN INDIGENT,
WITH A TRANSCRIPT OF THE HABEAS CORPUS PROCEEDING, FOR PURPOSE OF
APPEAL. 

THE JUDGMENT BELOW MUST BE REVERSED.  THE STATE PROPERLY CONCEDES
THAT UNDER OUR DECISIONS IN SMITH V. BENNETT, 365 U.S. 708 (1961), AND
LANE V. BROWN, 372 U.S. 477 (1963), "TO INTERPOSE ANY FINANCIAL
CONSIDERATION BETWEEN AN INDIGENT PRISONER OF THE STATE AND HIS
EXERCISE OF A STATE RIGHT TO SUE FOR HIS LIBERTY IS TO DENY THAT
PRISONER THE EQUAL PROTECTION OF THE LAWS."  SMITH V. BENNETT, SUPRA,
AT 709.  WE SPECIFICALLY HELD IN SMITH THAT HAVING ESTABLISHED A POST
CONVICTION PROCEDURE, A STATE CANNOT CONDITION ITS AVAILABILITY TO AN
INDIGENT UPON ANY FINANCIAL CONSIDERATION.  AND WE HELD IN LANE THAT
THE SAME RULE APPLIES TO PROTECT AN INDIGENT AGAINST A FINANCIAL
OBSTACLE TO THE EXERCISE OF A STATE-CREATED RIGHT TO APPEAL FROM AN
ADVERSE DECISION IN A POST-CONVICTION PROCEEDING. 

IN LANE V. BROWN, SUPRA, AT 483, THE COURT REAFFIRMED THE FUNDAMENTAL
PRINCIPLE OF GRIFFIN V. ILLINOIS, 351 U.S. 12, 19 (1956), THAT
"DESTITUTE DEFENDANTS MUST BE AFFORDED AS ADEQUATE APPELLATE REVIEW AS
DEFENDANTS WHO HAVE MONEY ENOUGH TO BUY TRANSCRIPTS."  THE COURT IN
LANE WENT ON TO OBSERVE THAT SMITH HAD ESTABLISHED "THAT THESE
PRINCIPLES WERE NOT TO BE LIMITED TO DIRECT APPEALS FROM CRIMINAL
CONVICTIONS, BUT EXTENDED ALIKE TO STATE POSTCONVICTION PROCEEDINGS." 
372 U.S., AT 484.  SEE ALSO ESKRIDGE V. WASHINGTON STATE BOARD, 357
U.S. 214 (1958); BURNS V. OHIO, 360 U.S. 252 (1959); DRAPER V.
WASHINGTON, 372 U.S. 487 (1963). 

THE STATE SUGGESTS THAT THERE MAY BE ALTERNATIVE WAYS OF PREPARING,
FOR PURPOSES OF APPEAL, AN ACCOUNT OF THE RELEVANT PROCEEDING AT THE
TRIAL LEVEL.  CF. DRAPER V. WASHINGTON, SUPRA.  IN THE PRESENT CASE, A
TRANSCRIPT IS AVAILABLE AND COULD EASILY HAVE BEEN FURNISHED.  WE NEED
NOT CONSIDER A POSSIBLE SITUATION WHERE A TRANSCRIPT CANNOT REASONABLY
BE MADE AVAILABLE AND ADEQUATE ALTERNATIVES ARE MADE AVAILABLE BY THE
STATE.  ACCORDINGLY, THE JUDGMENT BELOW MUST BE REVERSED AND THE CAUSE
REMANDED TO THE SUPREME COURT OF IOWA FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  AS TO THE CLAIM OF LACK OF COUNSEL AT THE PRELIMINARY HEARING,
THE STATE NOW CONCEDES THAT PETITIONER WAS NOT IN FACT REPRESENTED AT
THAT TIME (ALTHOUGH THE DISTRICT COURT FOUND TO THE CONTRARY). 
PETITIONER ALLEGED IN HIS PETITION FOR HABEAS CORPUS THAT A GUILTY PLEA
OBTAINED AT THE PRELIMINARY HEARING WAS INTRODUCED AS AN ADMISSION AT
HIS CRIMINAL TRIAL.  THE STATE CONCEDES THAT IF THIS IS TRUE,
PETITIONER "PROBABLY IS ENTITLED TO RELIEF IN HABEAS CORPUS UNDER WHITE
V. MARYLAND, 373 U.S. 59."  THE ATTORNEY GENERAL OF IOWA HAS RULED THAT
WHITE IS APPLICABLE TO PRELIMINARY HEARINGS IN IOWA BECAUSE GUILTY
PLEAS, IF MADE AT THAT TIME, MAY LATER BE USED AS ADMISSIONS OF GUILT. 
1964 OPINIONS OF THE ATTORNEY GENERAL OF IOWA 160 (OCTOBER 5, 1964). 

FN2  THE COURT'S ORDER READS:  "PETITION FOR CERTIORARI FILED,
CONSIDERED, AND DENIED.  SEE IN THIS CONNECTION, WALDON V. DISTRICT
COURT OF LEE COUNTY, IOWA, 130 N.W.2D 728."  THE WALDON CASE HELD ONLY
THAT A STATE NEED NOT PROVIDE APPOINTED COUNSEL ON APPEAL FROM THE
DENIAL OF HABEAS CORPUS; IT DOES NOT SO MUCH AS REFER TO THE TRANSCRIPT
PROBLEM, TO WHICH THIS COURT LIMITED THE GRANT OF CERTIORARI IN THIS
CASE. 

FN3  PETITIONER'S NOTICE OF APPEAL TO THE SUPREME COURT OF IOWA WAS
TIMELY AND PROPERLY FILED.  HIS APPEAL IS PENDING BEFORE THAT COURT,
AND DISPOSITION HAS BEEN STAYED UNTIL THE OUTCOME OF THIS PRELIMINARY
CASE. 
..END :











WALKER V. SOUTHERN R. CO. 385 U.S. 196 


NO. 89.  ARGUED NOVEMBER 10, 1966.  - DECIDED DECEMBER 5, 1966.  - 354
F.2D 950, REVERSED AND REMANDED. 


ACTION BY PETITIONER, EMPLOYEE, FOR MONEY DAMAGES AGAINST RAILROAD FOR
WRONGFUL DISCHARGE IN VIOLATION OF COLLECTIVE BARGAINING AGREEMENT
SUBJECT TO THE RAILWAY LABOR ACT HELD NOT BARRED BY HIS FAILURE TO
PURSUE ADMINISTRATIVE REMEDIES AVAILABLE UNDER THE ACT AT TIME HE
BROUGHT SUIT.  MOORE V. ILLINOIS CENT. R. CO., 312 U.S. 630, FOLLOWED;
REPUBLIC STEEL CORP. V. MADDOX, 379 U.S. 650, DISTINGUISHED. 

WALKER V. SOUTHERN RAILWAY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

PER CURIAM. 

UNDER MOORE V. ILLINOIS CENTRAL RAILROAD CO., 312 U.S. 630, DECIDED
IN 1941, A DISCHARGED RAILROAD EMPLOYEE AGGRIEVED BY THE DISCHARGE MAY
EITHER (1) PURSUE HIS REMEDY UNDER THE ADMINISTRATIVE PROCEDURES
ESTABLISHED BY AN APPLICABLE COLLECTIVE BARGAINING AGREEMENT SUBJECT TO
THE RAILWAY LABOR ACT, AND HIS RIGHT OF REVIEW BEFORE THE NATIONAL
RAILROAD ADJUSTMENT BOARD, OR (2) IF HE ACCEPTS HIS DISCHARGE AS FINAL,
BRING AN ACTION AT LAW IN AN APPROPRIATE STATE COURT FOR MONEY DAMAGES
IF THE STATE COURTS RECOGNIZE SUCH A CLAIM.  SEE ALSO SLOCUM V.
DELAWARE, L.&W.R. CO., 339 U.S. 239, 244; TRANSCONTINENTAL & WESTERN
AIR, INC. V. KOPPAL, 345 U.S. 653.  THE QUESTION IN THIS CASE IS
WHETHER THOSE DECISIONS SHOULD BE OVERRULED IN LIGHT OF REPUBLIC STEEL
CORP. V. MADDOX, 379 U.S. 650, DECIDED IN 1965. 

PETITIONER WAS A YARD FIREMAN IN THE EMPLOY OF RESPONDENT, THE
RAILROAD.  HE SUED IN A NORTH CAROLINA COURT ON A CLAIM THAT RESPONDENT
HAD UNLAWFULLY DISCHARGED HIM ON MAY 29, 1957, IN VIOLATION OF ITS
COLLECTIVE BARGAINING AGREEMENT WITH THE BROTHERHOOD OF LOCOMOTIVE
FIREMEN AND ENGINEMEN.  THE ACTION WAS REMOVED BY RESPONDENT TO THE
FEDERAL DISTRICT COURT BY REASON OF DIVERSITY OF CITIZENSHIP.  THE
DISTRICT COURT OVERRULED RESPONDENT'S CHALLENGE TO ITS JURISDICTION,
CITING MOORE, SLOCUM, AND KOPPAL, AND ENTERED A JUDGMENT FOR DAMAGES IN
PETITIONER'S FAVOR.  237 F. SUPP. 278.  THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT REVERSED, HOLDING THAT MADDOX, DECIDED AFTER THE ENTRY
OF THE DISTRICT COURT JUDGMENT, REQUIRED THAT PETITIONER FIRST EXHAUST
HIS ADMINISTRATIVE REMEDIES.  354 F.2D 950.  SINCE OUR OPINION IN
MADDOX EXPRESSLY STATED THAT "WE DO NOT MEAN TO OVERRULE (MOORE V.
ILLINOIS CENTRAL R. CO.)  WITHIN THE FIELD OF THE RAILWAY LABOR ACT"
BUT THAT "CONSIDERATION OF SUCH ACTION SHOULD PROPERLY AWAIT A CASE
PRESENTED" UNDER THAT ACT, 379 U.S., AT 657, N. 14, WE GRANTED
CERTIORARI, 384 U.S. 926.  WE REVERSE. 

MADDOX PRESENTED THE QUESTION WHETHER CONTRACT GRIEVANCE PROCEDURES
PROVIDED IN A COLLECTIVE BARGAINING AGREEMENT SUBJECT TO THE LABOR
MANAGEMENT RELATIONS ACT, 1947, AND CULMINATING IN BINDING ARBITRATION
MIGHT BE SIDESTEPPED IN FAVOR OF A LAWSUIT, IN LIGHT OF THE FEDERAL
POLICY REFLECTED IN THE LMRA OF FAVORING SUCH AGREED-UPON CONTRACT
GRIEVANCE PROCEDURES AS THE PREFERRED METHOD FOR SETTLING DISPUTES. 
THE ACTION WAS BROUGHT IN AN ALABAMA STATE COURT BY AN EMPLOYEE OF THE
REPUBLIC STEEL CORPORATION FOR SEVERANCE PAY ALLEGEDLY OWED HIM UNDER
THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINED SUCH A
GRIEVANCE PROCEDURE.  WE HELD THAT CONTRACT GRIEVANCE PROCEDURES
VOLUNTARILY INCORPORATED BY THE PARTIES IN COLLECTIVE BARGAINING
AGREEMENTS SUBJECT TO THE LMRA, UNLESS SPECIFIED BY THE PARTIES TO BE
NONEXCLUSIVE, MUST BE EXHAUSTED BEFORE DIRECT LEGAL REDRESS MAY BE
SOUGHT BY THE EMPLOYEE. 

PROVISION FOR ARBITRATION OF A DISCHARGE GRIEVANCE, A MINOR DISPUTE,
IS NOT A MATTER OF VOLUNTARY AGREEMENT UNDER THE RAILWAY LABOR ACT; THE
ACT COMPELS THE PARTIES TO ARBITRATE MINOR DISPUTES BEFORE THE NATIONAL
RAILROAD ADJUSTMENT BOARD ESTABLISHED UNDER THE ACT.  BROTHERHOOD OF
RAILROAD TRAINMEN V. CHICAGO RIVER & INDIANA R. CO., 353 U.S. 30.  BOTH
AT THE TIME OF PETITIONER'S ALLEGED DISCHARGE AND AT THE TIME HE
BROUGHT HIS LAWSUIT, THERE WAS CONSIDERABLE DISSATISFACTION WITH THE
OPERATIONS OF THE NATIONAL RAILROAD ADJUSTMENT BOARD AND WITH SOME OF
THE STATUTORY FEATURES.  CONGRESS INITIATED AN INQUIRY AND FOUND THAT
AMONG OTHER CAUSES FOR DISSATISFACTION, "RAILROAD EMPLOYEES WHO HAVE
GRIEVANCES SOMETIMES HAVE TO WAIT AS LONG AS 10 YEARS OR MORE BEFORE A
DECISION IS RENDERED BY THE BOARD ON THEIR CLAIM"; FOR EXAMPLE, "THE
FIRST DIVISION (WHICH HAS JURISDICTION OVER DISPUTES INVOLVING YARD
SERVICE EMPLOYEES OF PETITIONER'S CLASS)  ...  HAS NEVER BEEN CURRENT
IN ITS WORK, AND HAS A BACKLOG OF APPROXIMATELY 7 1/2 YEARS  ...  ." 
H.R. REP.  NO. 1114, 89TH CONG., 1ST SESS., AT 3, 5; S. REP. NO. 1201,
89TH CONG., 1ST SESS., AT 2.  THE CONGRESS ALSO FOUND THAT "IF AN
EMPLOYEE RECEIVES AN AWARD IN HIS FAVOR FROM THE BOARD, THE RAILROAD
AFFECTED MAY OBTAIN JUDICIAL REVIEW OF THAT AWARD BY DECLINING TO
COMPLY WITH IT.  IF, HOWEVER, AN EMPLOYEE FAILS TO RECEIVE AN AWARD IN
HIS FAVOR, THERE IS NO MEANS BY WHICH JUDICIAL REVIEW MAY BE
OBTAINED."  H.R. REP., SUPRA, AT 15.  S. REP., SUPRA, AT 3. 

IN CONSEQUENCE, CONGRESS ENACTED PUBLIC LAW 89-456, 80 STAT. 208,
EFFECTIVE JUNE 20, 1966, WHICH DRASTICALLY REVISES THE PROCEDURES IN
ORDER TO REMEDY THE DEFECTS.  OF COURSE THE NEW PROCEDURES WERE NOT
AVAILABLE TO PETITIONER, AND HIS CASE IS GOVERNED BY MOORE, SLOCUM, AND
KOPPAL.  THE CONTRAST BETWEEN THE ADMINISTRATIVE REMEDY BEFORE US IN
MADDOX AND THAT AVAILABLE TO PETITIONER PERSUADES US THAT WE SHOULD NOT
OVERRULE THOSE DECISIONS IN HIS CASE. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

I DISSENT BECAUSE I BELIEVE THIS COURT'S DECISION IN REPUBLIC STEEL
CORP. V. MADDOX, 379 U.S. 650, REQUIRES THE EXPLICIT OVERRULING OF
MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630, A CASE THAT HAS ALREADY
BEEN ALL BUT COMPLETELY VITIATED BY SUBSEQUENT DECISIONS. 

IN MOORE, A RAILROAD TRAINMAN BROUGHT AN ACTION FOR DAMAGES BASED
UPON AN ALLEGED WRONGFUL DISCHARGE WITHOUT FIRST EXHAUSTING
ADMINISTRATIVE REMEDIES.  FEDERAL JURISDICTION WAS INVOKED ON THE
GROUND OF DIVERSITY; AT THAT TIME AN EMPLOYMENT CONTRACT UNDER THE
RAILWAY LABOR ACT WAS THOUGHT TO BE GOVERNED, LIKE ORDINARY CONTRACTS,
BY STATE LAW.  THE APPLICABLE LAW IN THAT CASE - THAT OF MISSISSIPPI -
DID NOT REQUIRE EXHAUSTION OF REMEDIES.  THE COURT HELD THAT NOTHING IN
THE RAILWAY LABOR ACT REQUIRED A CONTRARY RESULT. 

THE PREMISE OF THE MOORE DECISION, THAT STATE LAW WAS APPLICABLE TO
THIS TYPE OF LABOR CONTRACT, WAS REMOVED IN A SERIES OF DECISIONS
HOLDING THAT LABOR CONTRACTS GOVERNED BY THE LABOR MANAGEMENT RELATIONS
ACT, 1947, AND THE RAILWAY LABOR ACT ARE SUBJECT TO FEDERAL SUBSTANTIVE
LAW, NOT STATE LAW.  TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448;
INTERNATIONAL ASSN. OF MACHINISTS V. CENTRAL AIRLINES, INC., 372 U.S.
682.  IN MADDOX, SUPRA, THE DOCTRINE OF EXHAUSTION OF REMEDIES WAS
DECLARED BY THIS COURT TO BE A PART OF THIS FEDERAL LABOR LAW:  "AS A
GENERAL RULE IN CASES TO WHICH FEDERAL LAW APPLIES, FEDERAL LABOR
POLICY REQUIRES THAT INDIVIDUAL EMPLOYEES WISHING TO ASSERT CONTRACT
GRIEVANCES MUST ATTEMPT USE OF THE CONTRACT GRIEVANCE PROCEDURE AGREED
UPON BY EMPLOYER AND UNION AS THE MODE OF REDRESS."  379 U.S., AT 652. 
STRONG POLICY ARGUMENTS WERE ADDUCED IN MADDOX TO SUPPORT THIS GENERAL
RULE.  SEE 379 U.S., AT 652-653; COX, RIGHTS UNDER A LABOR AGREEMENT,
69 HARV. L. REV. 601, 647-652 (1956). 

I CAN SEE NO REASON WHY THIS RULE SHOULD BE THOUGHT INAPPLICABLE TO
CASES UNDER THE RAILWAY LABOR ACT.  ALTHOUGH THE MADDOX DECISION DID
NOT EXPLICITLY COVER SUCH CASES, THE SINGLE DISSENTING JUSTICE
RECOGNIZED THAT THE COURT, "  ...  WHILE DECLINING EXPRESSLY TO
OVERRULE  ...  (MOORE AND ITS PROGENCY) IN THIS CASE, HAS RAISED THE
OVERRULING AXE SO HIGH THAT ITS FALLING IS JUST ABOUT AS CERTAIN AS THE
CHANGING OF THE SEASONS."  379 U.S., AT 667.  THE ONLY TWO COURTS OF
APPEALS TO DEAL WITH THE IMPACT OF MADDOX ON MOORE HAVE CONCURRED IN
DECLARING THAT EXHAUSTION OF REMEDIES IS NOW REQUIRED IN THE RAILWAY
LABOR FIELD.  WALKER V. SOUTHERN R. CO., 354 F.2D 950 (C.A. 4TH CIR.);
NEAL V. SYSTEM BD. OF ADJUSTMENT, 348 F.2D 722 (C.A. 8TH CIR.).  A
PENNSYLVANIA APPELLATE COURT HAS REFUSED TO PERMIT A SUIT LIKE THIS ONE
IN STATE COURT ON THE GROUND THAT SINCE MADDOX, "WE CANNOT SEE HOW THE
MOORE CASE IS STILL EFFECTIVE TO PERMIT A RECOVERY IN A STATE COURT
SUIT IN THIS CASE."  BEEBE V. UNION R. CO., 205 PA. SUPER.  146, 153,
208 A.2D 16, 20.  OTHER STATE COURTS HAVE REACHED THE SAME CONCLUSION. 
BUCHANAN V. ST. LOUIS SOUTHWESTERN R. CO., 400 S.W.2D 362; CAFFERY V.
NEW YORK CENTRAL R. CO., 24 APP. DIV. 2D 1075, 265 N.Y.S.2D 742. 

THE RULE OF EXHAUSTION OF CONTRACTUAL AND ADMINISTRATIVE REMEDIES IS
A SALUTARY ONE IN AN AREA IN WHICH SPECIALIZATION IS IMPORTANT AND THE
EXPERTISE OF CERTAIN ARBITRAL BODIES IS RECOGNIZED.  IN WHITEHOUSE V.
ILLINOIS CENTRAL R. CO., 349 U.S. 366, 371, THE COURT NOTED THAT "'THE
RAILROAD WORLD IS LIKE A STATE WITHIN A STATE.  ITS POPULATION OF SOME
THREE MILLION, IF WE INCLUDE THE FAMILIES OF WORKERS, HAS ITS OWN
CUSTOMS AND ITS OWN VOCABULARY, AND LIVES ACCORDING TO RULES OF ITS OWN
MAKING,' GARRISON, THE NATIONAL RAILROAD ADJUSTMENT BOARD:  A UNIQUE
ADMINISTRATIVE AGENCY, 46 YALE L.J. 567, 568-569."  IT IS TRUE OF
COURSE, AS THE COURT OBSERVES, THAT IN THE LABOR MANAGEMENT RELATIONS
ACT CASES ARBITRATION IS IMPOSED CONTRACTUALLY WHILE UNDER THE RAILWAY
LABOR ACT ARBITRATION BY THE ADJUSTMENT BOARD IS MANDATORY FOR ALL
"MINOR" CONTRACTUAL DISPUTES.  IF ANYTHING, THIS DISTINCTION WEIGHS IN
FAVOR OF RESPECTING CONGRESS' DETERMINATION THAT DISPUTES AS TO PROPER
PRACTICES UNDER A RAILROAD LABOR CONTRACT BE SETTLED - AT LEAST
INTIALLY - THROUGH DIRECT NEGOTIATION BETWEEN THE AFFECTED PARTIES AND,
THAT FAILING, BY ADJUSTMENT BOARD ARBITRATION. 

THE COURT'S ONLY RATIONALE FOR REFUSING TO TAKE THE STEP OF FORMALLY
OVERRULING MOORE AT THIS TIME, A STEP TO WHICH CURRENT PRECEDENT,
LOGIC, AND POLICY ALL SO PERSUASIVELY POINT, IS THAT THERE HAS
APPARENTLY BEEN SOME DISSATISFACTION WITH THE SPEED OF THE BOARD'S
PROCEDURES AND WITH THE STATUTE'S SCOPE OF APPEAL.  THIS
DISSATISFACTION IS PROPERLY THE SUBJECT OF CONGRESSIONAL CONCERN.  IT
IS IN MY VIEW, HOWEVER, UNSOUND FOR THIS COURT TO MAKE THE QUESTION
WHETHER EXHAUSTION OF REMEDIES APPLIES DEPEND UPON OUR DECISION AS TO
HOW EFFECTIVELY WE THINK THE BOARD IS FUNCTIONING.  IT SHOULD BE
ENOUGH, AS A UNANIMOUS COURT SAID JUST LAST TERM, THAT CONGRESS "  ...
INVESTED THE ADJUSTMENT BOARD WITH THE BROAD POWER TO ARBITRATE
GRIEVANCES AND PLAINLY INTENDED THAT INTERPRETATION OF THESE
CONTROVERSIAL PROVISIONS SHOULD BE SUBMITTED FOR THE DECISION OF
RAILROAD MEN, BOTH WORKERS AND MANAGEMENT, SERVING ON THE ADJUSTMENT
BOARD WITH THEIR LONG EXPERIENCE AND ACCEPTED EXPERTISE IN THIS
FIELD."  GUNTHER V. SAN DIEGO & A.E.R. CO., 382 U.S. 257, 261-262.  THE
COURT THERE STATED:  "THIS COURT TIME AND AGAIN HAS EMPHASIZED AND RE
EMPHASIZED THAT CONGRESS INTENDED MINOR GRIEVANCES OF RAILROAD WORKERS
TO BE DECIDED FINALLY BY THE RAILROAD ADJUSTMENT BOARD."  ID., AT 263. 

WE NEED NOT EVEN GO BACK TO LAST TERM FOR SUCH AN EXPRESSION OF
CONFIDENCE IN THE WORKINGS OF THE RAILROAD ADJUSTMENT BOARD AS THE
CENTRAL ORGAN OF RAILWAY LABOR ACT CONTRACT INTERPRETATION.  IN TODAY'S
DECISION IN TRANSPORTATION-COMMUNICATION EMPLOYEES UNION V. UNION
PACIFIC R. CO., ANTE, P. 157, THE COURT HOLDS THAT THE JURISDICTION OF
THE BOARD EXTENDS TO SETTLEMENT OF TRIPARTITE WORK-ASSIGNMENT
DISPUTES.  "THE RAILROAD, THE EMPLOYEES, AND THE PUBLIC, FOR ALL OF
WHOSE BENEFITS THE RAILWAY LABOR ACT WAS WRITTEN," THE COURT SAYS, "ARE
ENTITLED TO HAVE A FAIR, EXPEDITIOUS HEARING TO SETTLE DISPUTES OF THIS
NATURE."  ANTE, AT 162.  TO MEET ARGUMENTS THAT THE BOARD IS NOT
CAPABLE OF DEALING WITH SUCH COMPLEX PROBLEMS, THE COURT RIGHTLY NOTES
THAT THE BOARD CAN "  ... WITH ITS EXPERIENCE AND COMMON SENSE, HANDLE
THIS ENTIRE DISPUTE IN A SATISFACTORY MANNER IN A SINGLE PROCEEDING." 
ANTE, AT 165. 

I CAN SEE NO REASON WHY THE BOARD, FOR PURPOSES OF THE SIMPLE RUN-OF
THE-MILL CONTRACT DISPUTE RAISED IN THE PRESENT CASE, IS SUDDENLY
DEEMED SO INCAPABLE OF ADEQUATELY HANDLING THE QUESTION THAT THE
FAMILIAR LABOR LAW DOCTRINE OF EXHAUSTION OF REMEDIES IS IGNORED IN
THIS INSTANCE. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :















MOTOR RATE BUREAU V. UNITED STATES 385 U.S. 203 


NO. 591.  DECIDED DECEMBER 5, 1966.  - 254 F. SUPP. 633, AFFIRMED. 


NEW ENGLAND MOTOR RATE BUREAU, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















CADY V. MISSOURI 385 U.S. 204 


NO. 613.  DECIDED DECEMBER 5, 1966.  - 400 S.W.2D 481, APPEAL DISMISSED
AND CERTIORARI DENIED. 


CADY ET AL. V. MISSOURI EX REL. STATE HIGHWAY COMMISSION OF MISSOURI. 

APPEAL FROM THE KANSAS CITY COURT OF APPEALS OF MISSOURI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MINISTERS & CASUALTY V. HAASE 385 U.S. 205 


NO. 634.  DECIDED DECEMBER 5, 1966.  - 30 WIS. 2D 339, 141 N.W.2D 287,
APPEAL DISMISSED. 


MINISTERS LIFE & CASUALTY UNION V. HAASE, COMMISSIONER OF INSURANCE, ET
AL. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR ORAL
ARGUMENT. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









BANK OF MARIN V. ENGLAND 385 U.S. 99 


NO. 63.  ARGUED OCTOBER 20, 1966.  - DECIDED NOVEMBER 21, 1966.  - 352
F.2D 186, REVERSED. 


PETITIONER, A BANK, HONORED CHECKS DRAWN BEFORE, BUT PRESENTED FOR
PAYMENT AFTER, THE DEPOSITOR HAD FILED A VOLUNTARY BANKRUPTCY PETITION,
THE BANK BEING UNAWARE OF THE BANKRUPTCY PROCEEDING.  ON THE TRUSTEE'S
APPLICATION FOR A TURNOVER ORDER, THE REFEREE HELD THE BANK AND THE
PAYEE JOINTLY LIABLE TO THE TRUSTEE FOR THE AMOUNT OF THE CHECKS.  THE
PAYEE FULLY PAID THE JOINT JUDGMENT AND SERVED DEMAND UPON THE BANK FOR
CONTRIBUTION.  FROM THE DISTRICT COURT'S AFFIRMANCE OF THE REFEREE'S
ORDER ONLY THE BANK APPEALED.  THE COURT OF APPEALS AFFIRMED, HOLDING
THAT REGARDLESS OF WHETHER THE BANK KNEW OF THE BANKRUPTCY THE
BANKRUPT'S CHECKING ACCOUNT BECAME FROZEN WHEN THE BANKRUPTCY PETITION
WAS FILED BY VIRTUE OF SEC 70A OF THE BANKRUPTCY ACT, WHICH "BY
OPERATION OF LAW" AS OF THE DATE OF THE FILING OF THE PETITION VESTS
THE TRUSTEE WITH THE BANKRUPT'S TITLE TO DESCRIBED KINDS OF PROPERTY
"INCLUDING RIGHTS OF ACTION."  HELD: 

1.  THE PAYEE'S PAYMENT OF THE JOINT JUDGMENT DOES NOT MOOT THE CASE
SINCE THE PAYEE CAN STILL SUE THE PETITIONER FOR CONTRIBUTION.  PP. 100
101. 

2.  ABSENT REVOCATION OF ITS AUTHORITY OR KNOWLEDGE OF THE
BANKRUPTCY, A BANK CANNOT BE HELD LIABLE FOR HONORING CHECKS DRAWN
BEFORE A DEPOSITOR FILED A VOLUNTARY BANKRUPTCY PETITION.  PP. 101
103. 

(A)  THE BANK IS THE DEPOSITOR'S DEBTOR AND, UNLESS THERE HAS BEEN
REVOCATION GIVING THE BANK NOTICE, MUST HONOR CHECKS DRAWN UPON IT.  P.
101. 

(B)  THE ACT OF FILING A VOLUNTARY BANKRUPTCY PETITION DOES NOT PER
SE CONSTITUTE NOTICE TO THE BANK.  P. 102. 

(C)  IT WOULD BE INEQUITABLE TO HOLD THE BANK LIABLE FOR AN INVALID
TRANSFER UNDER SECS 70D(5) AND 18F OF THE ACT WHEN THE FORCE OF THOSE
PROVISIONS CAN BE MAINTAINED BY IMPOSING LIABILITY ON THE PAYEE OF THE
CHECKS, THE CREDITOR OF THE BANKRUPT WHICH BENEFITED FROM THE
TRANSACTION.  PP. 102-103. 

BANK OF MARIN V. ENGLAND, TRUSTEE IN BANKRUPTCY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER A BANK WHICH HONORED
CHECKS OF A DEPOSITOR DRAWN BEFORE ITS BANKRUPTCY BUT PRESENTED FOR
PAYMENT AFTER IT HAD FILED A VOLUNTARY PETITION IN BANKRUPTCY, IS
LIABLE TO THE TRUSTEE FOR THE AMOUNT OF THE CHECKS PAID WHERE THE BANK
HAD NO KNOWLEDGE OR NOTICE OF THE PROCEEDING.  THE TRUSTEE APPLIED TO
THE REFEREE FOR A TURNOVER ORDER REQUIRING PETITIONER BANK TO PAY TO
THE TRUSTEE THE AMOUNT OF THE CHECKS AND IN THE ALTERNATIVE ASKING THE
SAME RELIEF AGAINST THE PAYEE.  THE REFEREE DETERMINED THAT PETITIONER
AND THE PAYEE WERE JOINTLY LIABLE TO THE TRUSTEE.  THE DISTRICT COURT
AFFIRMED.  ONLY PETITIONER APPEALED AND THE COURT OF APPEALS AFFIRMED
THE DISTRICT COURT.  352 F.2D 186.  WE GRANTED CERTIORARI BECAUSE OF
THE IMPORTANCE OF THE QUESTION PRESENTED.  CF. ROSENTHAL V. GUARANTY
BANK & TRUST CO., 139 F. SUPP. 730; MULLANE V. CENTRAL HANOVER BANK &
TRUST CO., 339 U.S. 306. 

                              I. 

WE WERE ADVISED ON ORAL ARGUMENT THAT THE JOINT JUDGMENT RENDERED
AGAINST PETITIONER, THE BANK, AND THE PAYEE OF THE CHECKS WAS PAID IN
FULL BY THE PAYEE AND THAT AT PRESENT RESPONDENT'S SOLE FINANCIAL
INTEREST IN THIS LITIGATION IS PROTECTION AGAINST IMPOSITION OF COSTS
UNDER OUR RULE 57.  IT IS THEREFORE SUGGESTED THAT THE CASE IS MOOT. 
WE DO NOT AGREE.  WHATEVER MIGHT BE THE RESULT IF COSTS ALONE WERE
INVOLVED (CF. HEITMULLER V. STOKES, 256 U.S. 359, 362) THIS CASE SHOULD
NOT BE DISMISSED.  WE ARE ADVISED THAT THE PAYEE HAS PAID THE JOINT
JUDGMENT AND HAS FILED WITH THE BANKRUPTCY COURT AND SERVED ON
PETITIONER A DEMAND FOR CONTRIBUTION FROM IT RESPECTING SUMS PAID IN
SATISFACTION OF THE JUDGMENT.  THUS PETITIONER IS STILL SUBJECT TO A
SUIT BECAUSE OF THE ORIGINAL JUDGMENT AS TO ITS LIABILITY.  WE WOULD,
THEREFORE, STRAIN THE CONCEPTS OF MOOTNESS IF WE REQUIRED PETITIONER TO
START ALL OVER AGAIN WHEN THE PAYEE SUES IT FOR CONTRIBUTION. 

                                  II. 

110(A), PROVIDES THAT A TRUSTEE IN BANKRUPTCY IS VESTED "BY OPERATION
OF LAW" WITH THE TITLE OF THE BANKRUPT AS OF THE DATE OF THE FILING OF
THE PETITION TO DESCRIBED KINDS OF PROPERTY "INCLUDING RIGHTS OF
ACTION."  SEC 70A(5).  BUT WE DO NOT AGREE WITH THE COURT OF APPEALS
THAT THE BANKRUPT'S CHECKING ACCOUNTS ARE INSTANTLY FROZEN IN THE
ABSENCE OF KNOWLEDGE OR NOTICE OF THE BANKRUPTCY ON THE PART OF THE
DRAWEE.  THE TRUSTEE SUCCEEDS ONLY TO SUCH RIGHTS AS THE BANKRUPT
POSSESSED; AND THE TRUSTEE IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH
MIGHT HAVE BEEN ASSERTED AGAINST THE BANKRUPT BUT FOR THE FILING OF THE
PETITION.  SEE ZARTMAN V. FIRST NATIONAL BANK, 216 U.S. 134, 138.  THE
RELATIONSHIP OF BANK AND DEPOSITOR IS THAT OF DEBTOR AND CREDITOR,
FOUNDED UPON CONTRACT.  THE BANK HAS THE RIGHT AND DUTY UNDER THAT
CONTRACT TO HONOR CHECKS OF ITS DEPOSITOR PROPERLY DRAWN AND PRESENTED
(ALLEN V. BANK OF AMERICA, 58 CAL. APP. 2D 124, 127, 136 P.2D 345, 347;
WEAVER V. BANK OF AMERICA, 59 CAL. 2D 428, 431, 380 P.2D 644, 647; AND
SEE ANDERSON NATIONAL BANK V. LUCKETT, 321 U.S. 233), ABSENT A
REVOCATION THAT GIVES THE BANK NOTICE PRIOR TO THE TIME THE CHECKS ARE
ACCEPTED OR PAID BY THE BANK.   SEE HIROSHIMA V. BANK OF ITALY, 78 CAL.
APP. 362, 369, 248 P. 947, 950.  THE COURT OF APPEALS HELD THAT THE
BANKRUPTCY OF A DRAWER OPERATES WITHOUT MORE AS A REVOCATION OF THE
DRAWEE'S AUTHORITY.  352 F.2D, AT 191.  BUT THAT DOCTRINE IS A HARSH
ONE THAT RUNS AGAINST THE GRAIN OF OUR DECISIONS REQUIRING NOTICE
BEFORE A PERSON IS DEPRIVED OF PROPERTY (MULLANE V. CENTRAL HANOVER
BANK & TRUST CO., SUPRA, AT 314-318; WALKER V. CITY OF HUTCHINSON, 352
U.S. 112; SCHROEDER V. CITY OF NEW YORK, 371 U.S. 208), A PRINCIPLE
THAT HAS BEEN RECOGNIZED AND APPLIED IN PROCEEDINGS UNDER THE
BANKRUPTCY ACT.  NEW YORK V. NEW YORK, N.H.&H.R. CO., 344 U.S. 293, 296
297.  THE KIND OF NOTICE REQUIRED IS ONE "REASONABLY CALCULATED, UNDER
ALL THE CIRCUMSTANCES, TO APPRISE THE INTERESTED PARTIES OF THE
PENDENCY OF THE ACTION."  MULLANE V. CENTRAL HANOVER BANK & TRUST CO.,
SUPRA, AT 314.  WE CANNOT SAY THAT THE ACT OF FILING A VOLUNTARY
PETITION IN BANKRUPTCY PER SE IS REASONABLY CALCULATED TO PUT THE BANK
ON NOTICE.  ABSENT REVOCATION BY THE DRAWER OR HIS TRUSTEE OR ABSENT
KNOWLEDGE OR NOTICE OF THE BANKRUPTCY BY THE BANK, THE CONTRACT BETWEEN
THE BANK AND THE DRAWER REMAINS UNAFFECTED BY THE BANKRUPTCY AND THE
RIGHT AND DUTY OF THE BANK TO PAY DULY PRESENTED CHECKS REMAIN AS
BEFORE.  IN SUCH CIRCUMSTANCES THE TRUSTEE ACQUIRES NO RIGHTS IN THE
CHECKING ACCOUNT GREATER THAN THE BANKRUPT HIMSELF. 

EXCEPTIONS NOT RELEVANT HERE, THAT "NO TRANSFER BY OR IN BEHALF OF THE
BANKRUPT AFTER THE DATE OF BANKRUPTCY SHALL BE VALID AGAINST THE
TRUSTEE."  AND IN CASE OF A VOLUNTARY PETITION (WITH EXCEPTIONS NOT
MATERIAL HERE) THE FILING OPERATES AS AN ADJUDICATION.  SEC 18F, 73
STAT. 109, 11 U.S.C. SEC 41(F).  IT IS THEREFORE ARGUED WITH FORCE THAT
PAYMENT BY THE DRAWEE OF A DRAWER BANKRUPT'S CHECKS AFTER THE DATE OF
THAT FILING IS A "TRANSFER" WITHIN THE MEANING OF SEC 70D(5).  YET WE
DO NOT READ THESE STATUTORY WORDS WITH THE EASE OF A COMPUTER.  THERE
IS AN OVERRIDING CONSIDERATION THAT EQUITABLE PRINCIPLES GOVERN THE
EXERCISE OF BANKRUPTCY JURISDICTION.  SECTION 2A, 52 STAT. 842, 11
U.S.C. SEC 11(A); PEPPER V. LITTON, 308 U.S. 295, 304-305; SECURITIES &
EXCHANGE COMMISSION V. U.S. REALTY & IMP.  CO., 310 U.S. 434, 455.  WE
HAVE SAID ENOUGH TO INDICATE WHY IT WOULD BE INEQUITABLE TO HOLD LIABLE
A DRAWEE WHO PAYS CHECKS OF THE BANKRUPT DULY DRAWN BUT PRESENTED AFTER
BANKRUPTCY, WHERE NO ACTUAL REVOCATION OF ITS AUTHORITY HAS BEEN MADE
AND IT HAS NO NOTICE OR KNOWLEDGE OF THE BANKRUPTCY.  THE FORCE OF SECS
70D(5) AND 18F CAN BE MAINTAINED BY IMPOSING LIABILITY ON THE PAYEE OF
THE CHECKS WHERE HE HAS RECEIVED A VOIDABLE PREFERENCE OR OTHER
VOIDABLE TRANSFER.  THE PAYEE IS A CREDITOR OF THE BANKRUPT, AND TO
MAKE HIM REIMBURSE THE TRUSTEE IS ONLY TO DEPRIVE HIM OF PREFERENTIAL
TREATMENT AND TO RESTORE HIM TO THE CATEGORY OF A GENERAL CREDITOR.  TO
PERMIT THE TRUSTEE UNDER THESE CIRCUMSTANCES TO OBTAIN RECOVERY ONLY
AGAINST THE PARTY THAT BENEFITED FROM THE TRANSACTION IS TO DO EQUITY. 
REVERSED. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT, IN ITS HASTE TO ALLEVIATE AN INDISPUTABLE INEQUITY TO THE
BANK, DISREGARDS, IN MY OPINION, BOTH THE PROPER PRINCIPLES OF
STATUTORY CONSTRUCTION AND THE MOST PERMANENT INTERESTS OF BANKRUPTCY
ADMINISTRATION.  I MUST DISSENT.  (FN1) 

THE ACT ITSELF IS UNAMBIGUOUS.  SECTION 70A VESTS TITLE TO THE
BANKRUPT'S PROPERTY IN THE TRUSTEE "AS OF THE DATE OF THE FILING OF THE
PETITION."  52 STAT. 879, 11 U.S.C. SEC 110(A).  SECTION 70D
NONETHELESS SUSTAINS BONA FIDE TRANSFERS OF THE PROPERTY MADE AFTER
FILING AND "BEFORE ADJUDICATION OR BEFORE A RECEIVER TAKES POSSESSION
...  WHICHEVER FIRST OCCURS ...  ."  52 STAT. 881, 11 U.S.C. SEC
110(D).  TRANSACTIONS EXCLUDED FROM THE SHELTER OF SEC 70D ARE, SO FAR
AS PERTINENT, WITHIN SEC 70D(5), WHICH PROVIDES THAT "NO SUCH TRANSFER
BY OR IN BEHALF OF THE BANKRUPT  ...  SHALL BE VALID AGAINST THE
TRUSTEE  ...  ."  52 STAT. 882, 11 U.S.C. SEC 110(D)(5).  THE
ADJUDICATION OF VOLUNTARY PETITIONS RESULTS BY OPERATION OF LAW FROM
FILING.  SEC 18F, 73 STAT.  109, 11 U.S.C. SEC 41(F). 

IN THE SITUATION BEFORE US, THE REMAINING ISSUE IS ACCORDINGLY
WHETHER THIS TRANSFER OCCURRED BEFORE OR AFTER SEPTEMBER 26, THE DAY ON
WHICH SEAFOODS FILED ITS PETITION IN BANKRUPTCY AND WAS PERFORCE
ADJUDICATED BANKRUPT.  I DO NOT UNDERSTAND PETITIONER TO CONTEND, OR
THE COURT TO SUGGEST THAT THIS OCCURRED AT A TIME OTHER THAN
PRESENTMENT OF THE CHECKS, OCTOBER 2.  GIVEN THE LAW OF CALIFORNIA, BY
WHICH A CHECK IS NOT A PRO TANTO TRANSFER OF THE DRAWER'S RIGHTS UNTIL
PRESENTMENT, I CANNOT SEE THAT ANOTHER MOMENT IS POSSIBLE.  CALIFORNIA
CIVIL CODE SEC 3265E; CALIFORNIA COMMERCIAL CODE SEC 3409.  IN SUM, I
FIND IT UNAVOIDABLE THAT THE ACT'S PLAIN WORDS HOLD THE BANK LIABLE TO
THE TRUSTEE FOR THE VALUE OF ITS PAYMENT ON SEAFOODS' BEHALF.  (FN2) 

I DO NOT SUGGEST THAT THIS COURT SHOULD CONFINE ITS ATTENTION TO THE
UNADORNED TERMS OF THE BANKRUPTCY ACT.  NONETHELESS, WHERE CONGRESS HAS
POINTED SO UNMISTAKABLY IN ONE DIRECTION, PRUDENCE AND SIMPLE PROPRIETY
SURELY REQUIRE THAT WE EXAMINE CAREFULLY THE IMPULSES WHICH BECKON US
TO ANOTHER.  THE COURT EXPLAINS ITS RESOLUTION OF THIS CASE BY TWO
APPARENTLY ALTERNATIVE CONTENTIONS.  I AM UNPERSUADED THAT EITHER
PERMITS US TO CIRCUMVENT THE ACT'S DEMANDS. 

THE COURT FIRST INTIMATES, WITHOUT EXPRESSLY DECIDING, THAT THE BANK
IS SHIELDED BY ITS CONTRACTUAL RIGHT TO A SEASONABLE REVOCATION OF ITS
DUTY TO HONOR CHECKS DRAWN UPON IT.  THE COURT VOUCHES FOR THIS THE
DOCTRINE THAT A TRUSTEE IN BANKRUPTCY TAKES RIGHTS NO WIDER OR MORE
COMPLETE THAN HIS BANKRUPT HAD.  IT IS DOUBTLESS TRUE THAT A TRUSTEE IS
NOT A BONA FIDE PURCHASER OR ENCUMBRANCER, AND THAT HE ORDINARILY
ASSUMES THE BANKRUPT'S PROPERTY SUBJECT TO EXISTING CLAIMS, LIENS, AND
EQUITIES.  HEWIT V. BERLIN MACHINE WORKS, 194 U.S. 296.  UNFORTUNATELY,
THESE MAXIMS SCARCELY SUFFICE TO DECIDE THIS CASE.  THEY ARE
INTERSTITIAL RULES, VALID NO FURTHER THAN THE ACT'S POSITIVE
REQUIREMENTS PERMIT.  FIRST NATIONAL BANK V. STAAKE, 202 U.S. 141.  4
COLLIER, BANKRUPTCY PARA 70.04, AT 954.2.  THE ACT IN SEVERAL RESPECTS
CLOTHES THE TRUSTEE IN POWERS DENIED TO HIS BANKRUPT:  A TRUSTEE MAY
THUS AVOID, ALTHOUGH HIS BANKRUPT MAY NOT, TRANSACTIONS DEEMED
FRAUDULENT UNDER THE ACT, LIENS OBTAINED AND PREFERENTIAL TRANSFERS
COMPLETED WITHIN FOUR MONTHS OF BANKRUPTCY, AND STATUTORY LIENS WITHIN
THE PROHIBITION OF SEC 67C(2).  4 COLLIER, BANKRUPTCY PARA. 70.04, AT
957. 

THE COURT DOES NOT ASSERT THAT THIS TRANSFER IS PROTECTED BY SEC
70D.  I UNDERSTAND IT INSTEAD TO CONCEDE THAT, EQUITABLE CONSIDERATIONS
ASIDE, THE BANK'S PAYMENT IS INVALID AGAINST THE TRUSTEE.  I MUST
CONCLUDE THAT THE COURT HAS REASONED THAT A CONTRACTUAL DEFENSE
RETAINED AGAINST THE BANKRUPT SUFFICES TO PRECLUDE USE OF A POWER
EXPRESSLY CONFERRED UPON THE TRUSTEE.  IF THIS IS THE COURT'S MEANING,
IT HAS TRAVERSED BOTH LOGIC AND AUTHORITY, AND HAS EMASCULATED THE
POWERS GIVEN TO TRUSTEES UNDER THE ACT. 

THE COURT'S PRINCIPAL CONTENTION SEEMS TO BE THAT EQUITABLE
CONSIDERATIONS OBLIGE IT TO RELEASE THE BANK FROM LIABILITY.  ITS
PREMISE PLAINLY IS THAT EQUITY IS HERE A SOLVENT TO WHICH WE MAY
APPROPRIATELY RESORT; I AM UNABLE TO ACCEPT THAT PREMISE.  THIS IS NOT
A CASE IN WHICH THE STATUTE IS IMPRECISE.  NOR IS IT A CASE IN WHICH
THE LEGISLATURE'S INTENTIONS HAVE BEEN MISSHAPEN BY THE STATUTE'S
WORDS; EVEN A CURSORY EXAMINATION OF THE HISTORY OF SEC 70 WILL
EVIDENCE THAT ITS TERMS FAITHFULLY REFLECT CONGRESS' PURPOSES. 

THE ACT OF 1898 VESTED TITLE TO THE BANKRUPT'S PROPERTY IN THE
TRUSTEE AT ADJUDICATION, BUT CONTAINED NOTHING TO PREVENT ITS
DISSIPATION IN THE INTERVAL AFTER FILING.  (FN3)  THE COURTS WERE
THEREFORE LEFT FREE TO DEVISE PROTECTIVE RULES TO RECONCILE THE
COMPETING INTERESTS OF THE ESTATE AND OF THOSE WHO DEALT WITH THE
BANKRUPT IN THIS PERIOD.  THE FULCRUM OF THOSE RULES WAS THE
PROPOSITION THAT A "PETITION IN BANKRUPTCY IS A CAVEAT TO ALL THE
WORLD, AND IN EFFECT AN ATTACHMENT AND INJUNCTION."  MUELLER V. NUGENT,
184 U.S. 1, 14.  THE COURTS SOFTENED ITS SEVERITY BY A SERIES OF
EXCEPTIONS, EITHER EMPLOYING OR DISTINGUISHING IT AS EQUITY OR
CONVENIENCE SUGGESTED.  THE RESULT, AS A PRINCIPAL DRAFTSMAN OF THE
CHANDLER ACT REFORMS DESCRIBED IT, WAS THAT "NO CONSISTENT THEORY OF
PROTECTED TRANSACTIONS HAS BEEN DEVELOPED," AND THE SITUATION WAS
"CONDUCIVE TO CONFUSION AND UNCERTAINTY, WITH POTENTIALITIES FOR
ARGUMENT, 'BLUFFING,' LITIGATION, EXPENSE AND DELAY."  (FN4)  THE LAW
CONSISTED ESSENTIALLY OF "NEBULOUS VAGARIES."  (FN5) 

THE CHANDLER ACT STEMMED CHIEFLY FROM A SUSTAINED INVESTIGATION OF
THESE AND OTHER PROBLEMS BY THE NATIONAL BANKRUPTCY CONFERENCE.  (FN6)
ITS MEMBERS WERE THE ACT'S PRINCIPAL DRAFTSMEN.  THE REVISIONS THEY
MADE TO SEC 70 ENTIRELY RESTRUCTURED THE BASIS BOTH OF THE TRUSTEE'S
TITLE AND OF THE PROTECTION GIVEN TO TRANSACTIONS WHICH OCCUR AFTER
FILING.  THEIR PURPOSE, AS ONE OF THEM EXPLAINED TO THE CHANDLER
SUBCOMMITTEE, WAS TO PROVIDE "A CLEAR STATUTORY BASIS" TO THE ISSUES OF
TITLE AND PROTECTED TRANSACTIONS, IN "LIEU OF A CRAZY QUILT OF
CONTRADICTORY JUDICIAL STATEMENTS."  (FN7)  THE EFFECT OF THEIR
REVISIONS WAS TO DEFINE "THE FULL EXTENT TO WHICH BONA FIDE
TRANSACTIONS WITH THE BANKRUPT, AFTER BANKRUPTCY, WILL BE PROTECTED." 
(FN8) 

ADJUDICATION AND RECEIVERSHIP WERE PLAINLY EXPECTED TO MARK THE
PERIMETERS OF THIS PROTECTION.  VARIOUS FACTORS DETERMINED THIS
CHOICE.  FIRST, NONE OF THE SEVERAL EXCEPTIONS TO MUELLER V. NUGENT
REACHED TRANSACTIONS WHICH OCCURRED AFTER ADJUDICATION.  (FN9)  MORE
IMPORTANT, ONCE THE DRAFTSMEN HAD ELECTED TO VEST TITLE IN THE TRUSTEE
FROM FILING, THEY WERE CHIEFLY ANXIOUS TO SHIELD DEBTORS FROM THE
CONSEQUENCES OF UNWARRANTED INVOLUNTARY PETITIONS.  (FN10)  THEY FEARED
THAT SUCH A PETITION MIGHT RUIN A DEBTOR BY INDUCING OTHERS TO AVOID
DEALINGS WITH HIM.  SECTION 70D WAS EXPECTED TO IMMUNIZE BONA FIDE
TRANSACTIONS AFTER FILING, AND THUS TO ENCOURAGE DEALINGS WITH THE
SOLVENT DEBTOR.  THERE IS NO NEED FOR SUCH PROTECTION AFTER
ADJUDICATION.  FINALLY, ADJUDICATION AND RECEIVERSHIP SIGNAL THE
BEGINNING OF BANKRUPTCY ADMINISTRATION, AND THEY ARE THEREFORE BOTH
APPROPRIATE MOMENTS AT WHICH TO FORBID ALL FURTHER MEDDLING WITH THE
ESTATE.  (FN11)    IT IS EQUALLY PLAIN THAT THE PROTECTION OFFERED BY
SEC 70D MUST HAVE BEEN INTENDED PRINCIPALLY FOR INVOLUNTARY
PROCEEDINGS.  THERE ARE SEVERAL INDICATIONS OF THIS.  MOST IMPORTANT,
THE HAZARD TO WHICH THE SECTION WAS CHIEFLY DIRECTED, THE CONSEQUENCES
OF AN UNWARRANTED PETITION UPON A DEBTOR'S CREDIT, IS ENTIRELY ABSENT
FROM VOLUNTARY PROCEEDINGS.  THUS, THE DISCUSSION OF THIS PROBLEM
BEFORE THE CHANDLER SUBCOMMITTEE WAS EXPLICITLY CONFINED TO INVOLUNTARY
PETITIONS.  (FN12)  FURTHER, THE PROTECTION OFFERED BY SEC 63B, WHICH
CLOSELY SUPPLEMENTS SEC 70D, EXTENDS ONLY TO INVOLUNTARY PROCEEDINGS. 
(FN13)  FINALLY, THE DRAFTSMEN MUST SURELY HAVE KNOWN THAT THE
ADJUDICATION OF VOLUNTARY PETITIONS ORDINARILY FOLLOWED QUICKLY AND
ROUTINELY AFTER FILING.  (FN14)  IT WAS CERTAINLY NOT UNKNOWN FOR
ADJUDICATION TO OCCUR ON THE DAY OF FILING.  (FN15)  THE DRAFTSMEN
COULD ONLY HAVE INTENDED THAT ANY PROTECTION GIVEN IN VOLUNTARY
PROCEEDINGS BY SEC 70D BE FLEETING AND MINIMAL.  (FN16) 

IN SHORT, SEC 70 WAS TAILORED TO PROVIDE CAREFULLY MEASURED
PROTECTION TO BONA FIDE TRANSFERS.  IT WAS INTENDED TO PRECLUDE FURTHER
CONFUSION AND UNCERTAINTY.  THERE IS EVERY INDICATION THAT ITS TERMS
FAITHFULLY REFLECT ITS PURPOSES. 

I FULLY SYMPATHIZE WITH THE DISCOMFORT OF THE BANK'S POSITION, BUT I
CANNOT ESCAPE THE IMPACT OF WHAT CONGRESS HAS DONE.  (FN17)  THE COURT
HAS NOT FOUND SEC 70 CONSTITUTIONALLY IMPERMISSIBLE.  (FN18)  IT HAS
SIMPLY MEASURED THE STATUTE BY THE STANDARD OF ITS OWN CONSCIENCE, AND
CONCLUDED THAT EQUITY REQUIRES A RESULT WHICH THE STATUTE FORBIDS.  I
HAD THOUGHT IT WELL SETTLED THAT EQUITY MAY SUPPLEMENT, BUT MAY NEVER
SUPERSEDE, THE ACT.  1 COLLIER, BANKRUPTCY PARA 2.09, AT 171-172.  THE
ACT'S LANGUAGE IS NEITHER IMPRECISE NOR INFELICITOUS; I CAN THEREFORE
SEE NO ROOM FOR THE INTERPOSITION OF EQUITY. 

MORE IMPORTANT, THE COURT TODAY PERMITS THE DILUTION OF THE CHANDLER
AMENDMENTS TO SEC 70.  THE COURT'S DISPOSITION OF THIS CASE MAY BE
TAKEN TO SUGGEST THAT WHENEVER EQUITY IS THOUGHT STRONGLY TO DEMAND
RELIEF FROM THE STRICTURES OF THE ACT, FURTHER EXCEPTIONS MAY BE
APPROPRIATELY CREATED TO THE STATUTORY SCHEME.  I FEAR THAT THE COURT
MAY HAVE SET IN MOTION ONCE MORE THE PROTRACTED PROCESS WHICH BEFORE
1938 RESULTED IN "CONFUSION AND UNCERTAINTY," "LITIGATION, EXPENSE AND
DELAY."  IF SO, THE CHANDLER AMENDMENTS WILL HAVE HAD NO MORE PERMANENT
RESULT THAN TO WIPE THE JUDICIAL SLATE MOMENTARILY CLEAN. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  LIKE THE COURT, I BELIEVE THAT THIS CASE IS NOT MOOT.  IN
ADDITION TO WHAT HAS BEEN SAID BY THE MAJORITY, COMPARE FISHGOLD V.
SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. 275, AND AERONAUTICAL
INDUSTRIAL DIST. LODGE V. CAMPBELL, 337 U.S. 521. 

FN2  IT IS TRUE THAT THE NEGOTIABILITY PROVISO TO SEC 70D(5) HAS ONCE
BEEN HELD TO PROTECT A BANK IN ANALOGOUS CIRCUMSTANCES.  ROSENTHAL V.
GUARANTY BANK & TRUST CO., 139 F. SUPP. 730.  THE PROVISO'S LEGISLATIVE
HISTORY THROWS LITTLE LIGHT ON ITS INTENDED SCOPE.  IT APPEARS
INAPPLICABLE HERE.  FIRST, PRESENTMENT IS NOT STRICTLY A NEGOTIATION. 
SECOND AND MORE IMPORTANT, OTHER CONSTRUCTIONS ARE MORE CONSONANT WITH
THE BALANCE OF SEC 70D.  CF. 70 HARV. L. REV. 548, 550.  4 COLLIER,
BANKRUPTCY PARA 70.68, AT 1502, N. 3 (14TH ED. 1964).  I DO NOT
UNDERSTAND THE COURT TO RELY UPON THE PROVISO. 

FN3  THIS COURT HAD HELD THAT DESPITE THE CLEAVAGE AT ADJUDICATION,
THE TRUSTEE TOOK THE TITLE AS IT WAS AT FILING.  EVERETT V. JUDSON, 228
U.S. 474.  THE SITUATION IS SUMMARIZED IN MCLAUGHLIN, ASPECTS OF THE
CHANDLER BILL TO AMEND THE BANKRUPTCY ACT, 4 U. CHI.  L. REV. 369,
383. 

FN4  MCLAUGHLIN, AMENDMENT OF THE BANKRUPTCY ACT (PTS.  1 & 2), 40
HARV. L. REV. 341, 583, AT 615.  THE SAME CONCLUSIONS ARE REACHED BY
WEINSTEIN, THE BANKRUPTCY LAW OF 1938, AT 161. 

FN5  4 COLLIER, BANKRUPTCY PARA 70.66, AT 1495. 

FN6  A BRIEF HISTORY OF THE CONFERENCE'S WORK MAY BE FOUND IN
MCLAUGHLIN, 4 U. CHI.  L. REV., AT 375. 

FN7  HEARING BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R.
6439, 75TH CONG., 1ST SESS., 212.   PROFESSOR MCLAUGHLIN QUOTED FROM
HIS ARTICLE IN 40 HARV. L. REV. 341.  HE SUBSEQUENTLY ACKNOWLEDGED THAT
SEC 70 WOULD PERMIT AN AREA IN WHICH THE COURTS COULD CONTINUE TO
BALANCE THE COMPETING INTERESTS OF THE PARTIES.  IBID.  IN LIGHT OF THE
IMPORTANCE ATTACHED TO ADJUDICATION AS A LINE OF CLEAVAGE, AND THE
COMPARATIVE INSIGNIFICANCE INTENDED FOR SEC 70D IN VOLUNTARY
PROCEEDINGS, SEE INFRA, I DO NOT BELIEVE THAT THIS ACKNOWLEDGMENT CAN
BE TAKEN TO REACH THIS CASE. 

FN8  4 COLLIER, BANKRUPTCY PARA 70.67, AT 1500. 

FN9  4 COLLIER, BANKRUPTCY PARA 70.66, AT 1498.  IN THE ONE APPARENT
EXCEPTION, JONES V. SPRINGER, 226 U.S. 148, A DREDGE HAD BEEN PLACED IN
THE HANDS OF A RECEIVER UNDER AN ATTACHMENT LEVIED BEFORE FILING.  THE
COURT CONCLUDED THAT THIS SUFFICED TO AVOID THE ORDINARY LIMITATIONS
IMPOSED BY ADJUDICATION. 

FN10  HEARING BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R.
6439, 75TH CONG., 1ST SESS., 211.  PROFESSOR MCLAUGHLIN DESCRIBED THIS
TO THE SUBCOMMITTEE AS "THE NEXT MOST PRESSING PROBLEM."  HE CONCLUDED
THAT "WE HAVE PUT IN A PROVISION (70D) TO COVER THAT (THE PROBLEM OF
UNWARRANTED PETITIONS)."  HIS EXPLANATION TO THE SUBCOMMITTEE OF SEC
70D WAS BASED ENTIRELY ON THIS PROBLEM.  THERE IS OF COURSE EVIDENCE
THAT THE DRAFTSMEN ALSO EXPECTED TO ALLEVIATE UNFAIRNESS WHICH SEC 70A
MIGHT OTHERWISE PRODUCE.  SEE ANALYSIS OF H.R. 12889, HOUSE COMMITTEE
ON THE JUDICIARY, 74TH CONG., 2D SESS., 230 (COMM. PRINT 1936). 

FN11 MACLACHLAN, HANDBOOK OF THE LAW OF BANKRUPTCY 346. 

FN12  HEARING BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R.
6439, 75TH CONG., 1ST SESS., 211. 

FN13  52 STAT. 873, 11 U.S.C. SEC 103(B).  SECTION 63B PROVIDES THAT
"IN THE INTERVAL AFTER THE FILING OF AN INVOLUNTARY PETITION AND BEFORE
THE APPOINTMENT OF A RECEIVER OR THE ADJUDICATION, WHICHEVER FIRST
OCCURS, A CLAIM ARISING IN FAVOR OF A CREDITOR BY REASON OF PROPERTY
TRANSFERRED OR SERVICES RENDERED BY THE CREDITOR TO THE BANKRUPT FOR
THE BENEFIT OF THE ESTATE SHALL BE PROVABLE TO THE EXTENT OF THE VALUE
OF SUCH PROPERTY OR SERVICES." 

FN14  MACLACHLAN, HANDBOOK OF THE LAW OF BANKRUPTCY 40. 

FN15  SEE, E.G., NEW YORK COUNTY NATIONAL BANK V. MASSEY, 192 U.S.
138. 

FN16  FURTHER, THE 1959 AMENDMENTS TO SEC 18, BY WHICH ADJUDICATION
RESULTS BY OPERATION OF LAW FROM FILING, WERE ADOPTED UPON THE
RECOMMENDATION OF THE JUDICIAL CONFERENCE AND ITS COMMITTEE ON
BANKRUPTCY ADMINISTRATION.  ANNUAL REPORT OF THE PROCEEDINGS OF THE
JUDICIAL CONFERENCE, 1958, P. 28.  THE BILL RECEIVED THE ENDORSEMENT OF
THE NATIONAL BANKRUPTCY CONFERENCE.  H.R. REP. NO. 241, 86TH CONG., 1ST
SESS., 2.  IT THEREFORE SEEMS QUITE IMPROBABLE THAT THE 1959 AMENDMENTS
COULD HAVE INADVERTENTLY EXCLUDED VOLUNTARY PROCEEDINGS FROM THE SCOPE
OF SEC 70D. 

FN17  JUDGE SOPER'S REASONING IN LAKE V. NEW YORK LIFE INSURANCE CO.,
218 F.2D 394, 399, SEEMS ENTIRELY PERSUASIVE:  "WHETHER THE LINE WHICH
HAS BEEN DRAWN IS THE BEST POSSIBLE SOLUTION OF THE PROBLEM IS NOT FOR
THE COURTS TO SAY.  THE LINE HAS IN FACT BEEN DRAWN BY COMPETENT
AUTHORITY AND IT IS NO LONGER NECESSARY FOR THE COURTS TO MAKE THE
ATTEMPT, WHICH HAS NOT BEEN CONSPICUOUSLY SUCCESSFUL IN THE PAST, TO
DECIDE CASES ON THE FACTS AS THEY ARISE  ...  ."  SEE ALSO KOHN V.
MYERS, 266 F.2D 353. 

FN18  I CANNOT IN ANY EVENT ACCEPT PETITIONER'S CONTENTION THAT THESE
PROVISIONS HAVE DENIED IT DUE PROCESS.  IN EXERCISE OF ITS EXPRESS
CONSTITUTIONAL AUTHORITY OVER BANKRUPTCY, ART. I, SEC 8, CONGRESS HAS
ATTACHED GREAT IMPORTANCE TO SWIFT AND EFFICIENT ADMINISTRATION; TO
THIS PURPOSE IT DEVISED A STATUTORY SCHEME BY WHICH IT BALANCED THE
COMPETING RIGHTS OF THE INTERESTED PARTIES.  CONGRESS' PURPOSES ARE
PERMISSIBLE, AND THE SCHEME IT HAS ADOPTED IS REASONABLY CALCULATED TO
ACHIEVE THOSE PURPOSES.  IN THIS CONTEXT I CANNOT SAY THAT THE
CONSTITUTION REQUIRES THAT ALL WHOSE RIGHTS MAY BE REACHED BY
BANKRUPTCY PROCEEDINGS MUST FIRST HAVE ACTUAL NOTICE OF THEM.  CF.
HANOVER NATIONAL BANK V. MOYSES, 186 U.S. 181. 

MR. JUSTICE FORTAS. 

I WOULD VACATE THE JUDGMENT.  I BELIEVE THAT WE DO NOT HAVE BEFORE US
A CASE OR CONTROVERSY BETWEEN THE PARTIES OF RECORD. 

RESPONDENT, THE TRUSTEE IN BANKRUPTCY, HAS NO SUBSTANTIAL STAKE IN
THE OUTCOME OF THIS LITIGATION AND IS NOT AN ADVERSARY IN THE USUAL
SENSE.  ON FEBRUARY 24, 1964, THE REFEREE IN BANKRUPTCY RULED THAT BOTH
THE PETITIONER BANK AND THE PAYEE ON THE BANKRUPT'S CHECKS WERE LIABLE
TO THE TRUSTEE.  ON MAY 19, 1964, THE PAYEE PAID THE TRUSTEE IN FULL
AND HAS NOT BEEN A PARTY TO THIS LITIGATION SINCE THAT TIME.  HAVING
RECEIVED FULL PAYMENT, THE TRUSTEE HAS NO INTEREST IN THE LITIGATION
EXCEPT PROFESSIONAL CURIOSITY AS TO THE QUESTION OF LAW - AND HE SO
APPRISED THE DISTRICT COURT, THE COURT OF APPEALS, AND THIS COURT.  SEE
BRIEF FOR RESPONDENT, P. 2.  SEE ALSO PETITION FOR CERTIORARI, P. 4.
NEVERTHELESS, THE BANK, ALSO EAGER FOR AN ANSWER TO THIS INTRIGUING
LEGAL PROBLEM AND FACING A CLAIM FROM THE PAYEE FOR CONTRIBUTION,
CONTINUED THE LITIGATION AGAINST THE TRUSTEE, AND THE TRUSTEE
OBLIGINGLY WENT ALONG.  THE RESPONDENT TRUSTEE'S ONLY FINANCIAL
INTEREST IS ADMITTEDLY CONFINED TO THE QUESTION OF COURT COSTS,  (FN1)
INCURRED AS A VOLUNTEER. 

THERE ARE TWO REASONS OF SUBSTANCE WHY THE COURT SHOULD NOT, IN THIS
CASE, DECIDE THE IMPORTANT STATUTORY QUESTION PRESENTED.  FIRST, THIS
IS NOT AN ADVERSARY PROCEEDING, AND HAS NOT BEEN ONE SINCE RESPONDENT
RECEIVED FULL PAYMENT IN 1964.  IT IS BASIC TO OUR ADVERSARY SYSTEM TO
INSIST THAT THE COURTS HAVE THE BENEFIT OF THE CONTENTIONS OF OPPOSING
PARTIES WHO HAVE A MATERIAL, AND NOT MERELY AN ABSTRACT, INTEREST IN
THE CONFLICT.  ADVERSE PARTIES - ADVERSE IN REALITY AND NOT MERELY IN
POSITIONS TAKEN - ARE ABSOLUTELY NECESSARY.  SEE, E.G., MUSKRAT V.
UNITED STATES, 219 U.S. 346, 361-363 (1911); CALIFORNIA V. SAN PABLO &
TULARE R. CO., 149 U.S. 308, 313-314 (1893); SOUTH SPRING GOLD CO. V.
AMADOR GOLD CO., 145 U.S. 300, 301-302 (1892).  CF. AETNA LIFE INS. CO.
V. HAWORTH, 300 U.S. 227, 240-242 (1937)(HUGHES, C.J.); FAIRCHILD V.
HUGHES, 258 U.S. 126, 129-130 (1922)(BRANDEIS, J.). 

SECOND, THIS IS A PECULIAR CASE IN WHICH TO DEPART FROM THE SETTLED
RULE.  THE EFFECT OF THE DECISION TODAY IS TO STRIP THE PAYEE OF ITS
ASSERTED RIGHT TO CONTRIBUTION, ALTHOUGH THE PAYEE IS NOT BEFORE THIS
COURT, AND WAS NOT BEFORE THE COURT OF APPEALS OR THE DISTRICT COURT. 
THE QUESTION OF THE RELATIVE RIGHTS AND OBLIGATIONS OF THE PAYEE AND
THE BANK OUGHT TO BE RESOLVED IN LITIGATION IN WHICH BOTH PARTICIPATE. 
(FN2)  CF. MULLANE V. CENTRAL HANOVER BANK & TRUST CO., 339 U.S. 306,
314 (1950).  THE IMPACT OF TODAY'S DECISION UPON A PARTY NOT PRESENT
CONFIRMS THE WISDOM OF THE RULE "THAT WHEN THERE IS NO ACTUAL
CONTROVERSY, INVOLVING REAL AND SUBSTANTIAL RIGHTS, BETWEEN THE PARTIES
TO THE RECORD, THE CASE WILL BE DISMISSED."  LITTLE V. BOWERS, 134 U.S.
547, 557.  SEE ALSO LORD V. VEAZIE, 8 HOW.  251, 255. 

I WOULD VACATE THE JUDGMENT BELOW AND REMAND WITH DIRECTION TO
DISMISS.  SEE MECHLING BARGE LINES V. UNITED STATES, 368 U.S. 324, 329
330 (1961); UNITED STATES V. MUNSINGWEAR, 340 U.S. 36, 39-41 (1950). 

FN1  AN UNBROKEN LINE OF CASES ESTABLISHES THE RULE THAT CONTROVERSY
AS TO COSTS ALONE DOES NOT SALVAGE AN OTHERWISE MOOT CASE.  SEE, E.G.,
WALLING V. REUTER CO., 321 U.S. 671, 677 (1944); UNITED STATES V.
ANCHOR COAL CO., 279 U.S. 812 (1929); ALEJANDRINO V. QUEZON, 271 U.S.
528, 533-536 (1926); BROWNLOW V. SCHWARTZ, 261 U.S. 216 (1923);
HEITMULLER V. STOKES, 256 U.S. 359, 362-363 (1921); ROBERTSON &
KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES SEC 274
(WOLFSON & KURLAND ED.); 6 MOORE, FEDERAL PRACTICE PARA. 54.70(5), AT
1311 (2D ED. 1965). 

FN2  UPON VACATION OF THE JUDGMENT BELOW, THE BANK WOULD BE FREE TO
RELITIGATE WITH THE PAYEE THE QUESTION OF ITS OWN LIABILITY, SINCE THE
BANK WAS IN NO RESPECT RESPONSIBLE FOR THE MANNER IN WHICH THIS CASE
BECAME A NONADVERSARY PROCEEDING.  SEE UNITED STATES V. MUNSINGWEAR,
340 U.S. 36, 39-40 & N. 1 (1950). 
..END :



BADGLEY V. HARE 385 U.S. 114 


NO. 505.  DECIDED NOVEMBER 21, 1966.  - 376 MICH. 410, 137 N.W.2D 495,
138 N.W.2D 16; 377 MICH. 396, 140 N.W.2D 436, APPEAL DISMISSED. 


BADGLEY ET AL. V. HARE, SECRETARY OF STATE OF MICHIGAN, ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















BOYDEN V. CALIFORNIA 385 U.S. 114 


NO. 271, MISC.  DECIDED NOVEMBER 21, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


BOYDEN V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















BATTAGLIA V. UNITED STATES 385 U.S. 115 


NO. 564.  DECIDED NOVEMBER 21, 1966.  - AFFIRMED. 


BATTAGLIA ET AL., DBA PRODUCE TRANSPORT DISPATCH V. UNITED STATES ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND THE CASE SET FOR ORAL ARGUMENT. 
..END :














ADDERLEY V. FLORIDA 385 U.S. 39 


NO. 19.  ARGUED OCTOBER 18, 1966.  - DECIDED NOVEMBER 14, 1966.  - 175
SO. 2D 249, AFFIRMED. 


PETITIONERS, 32 STUDENTS, WERE MEMBERS OF A GROUP OF ABOUT 200 WHO ON
A NONPUBLIC JAIL DRIVEWAY, WHICH THEY BLOCKED, AND ON ADJACENT COUNTY
JAIL PREMISES HAD, BY SINGING, CLAPPING, AND DANCING, DEMONSTRATED
AGAINST THEIR SCHOOLMATES' ARREST AND PERHAPS AGAINST SEGREGATION IN
THE JAIL AND ELSEWHERE.  THE SHERIFF, THE JAIL'S CUSTODIAN, ADVISED
THEM THAT THEY WERE TRESPASSING ON COUNTY PROPERTY AND WOULD HAVE TO
LEAVE OR BE ARRESTED.  THE 107 DEMONSTRATORS REFUSING TO DEPART WERE
THEREAFTER ARRESTED AND CONVICTED UNDER A FLORIDA TRESPASS STATUTE FOR
"TRESPASS WITH A MALICIOUS AND MISCHIEVOUS INTENT."  PETITIONERS
CONTEND THAT THEIR CONVICTIONS, AFFIRMED BY THE FLORIDA CIRCUIT COURT
AND THE DISTRICT COURT OF APPEAL, DEPRIVED THEM OF THEIR "RIGHTS OF
FREE SPEECH, ASSEMBLY, PETITION, DUE PROCESS OF LAW AND EQUAL
PROTECTION OF THE LAWS" UNDER THE FOURTEENTH AMENDMENT.  HELD: 

1.  THE FLORIDA TRESPASS STATUTE, HERE APPLIED TO A DEMONSTRATION ON
THE PREMISES OF A JAIL, WHICH IS BUILT FOR SECURITY PURPOSES AND IS NOT
OPEN TO THE PUBLIC, IS AIMED AT CONDUCT OF A LIMITED KIND AND IS NOT
UNCONSTITUTIONALLY VAGUE AS WERE THE COMMON-LAW, BREACH-OF-THE-PEACE
STATUTES INVALIDATED IN EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, AND
COX V. LOUISIANA, 379 U.S. 536, 559.  PP. 41-43. 

2.  THE DOCTRINE OF ABATEMENT IS INAPPLICABLE HERE.  HAMM V. CITY OF
ROCK HILL, 379 U.S. 306, DISTINGUISHED.  P. 43. 

3.  THE ABSTRACT PROPOSITION THAT PETTY CRIMINAL STATUTES MAY NOT BE
USED TO VIOLATE MINORITIES' CONSTITUTIONAL RIGHTS IS IRRELEVANT TO THIS
CASE.  P. 44. 

4.  THERE WAS AMPLE EVIDENCE TO SUPPORT PETITIONERS' TRESPASS
CONVICTIONS FOR REMAINING ON JAIL GROUNDS RESERVED FOR JAIL USES AFTER
THEY HAD BEEN DIRECTED TO LEAVE BY THE SHERIFF.  THERE WAS NO EVIDENCE
AT ALL THAT PETITIONERS WERE ARRESTED OR CONVICTED FOR THEIR VIEWS OR
OBJECTIVES.  PP. 44-48. 

ADDERLEY ET AL. V. FLORIDA. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST
DISTRICT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, HARRIETT LOUISE ADDERLEY AND 31 OTHER PERSONS, WERE
CONVICTED BY A JURY IN A JOINT TRIAL IN THE COUNTY JUDGE'S COURT OF
LEON COUNTY, FLORIDA, ON A CHARGE OF "TRESPASS WITH A MALICIOUS AND
MISCHIEVOUS INTENT" UPON THE PREMISES OF THE COUNTY JAIL CONTRARY TO
SEC 821.18 OF THE FLORIDA STATUTES SET OUT BELOW.  (FN1)  PETITIONERS,
APPARENTLY ALL STUDENTS OF THE FLORIDA A.&M. UNIVERSITY IN TALLAHASSEE,
HAD GONE FROM THE SCHOOL TO THE JAIL ABOUT A MILE AWAY, ALONG WITH MANY
OTHER STUDENTS, TO "DEMONSTRATE" AT THE JAIL THEIR PROTESTS OF ARRESTS
OF OTHER PROTESTING STUDENTS THE DAY BEFORE, AND PERHAPS TO PROTEST
MORE GENERALLY AGAINST STATE AND LOCAL POLICIES AND PRACTICES OF RACIAL
SEGREGATION, INCLUDING SEGREGATION OF THE JAIL.  THE COUNTY SHERIFF,
LEGAL CUSTODIAN OF THE JAIL AND JAIL GROUNDS, TRIED TO PERSUADE THE
STUDENTS TO LEAVE THE JAIL GROUNDS.  WHEN THIS DID NOT WORK, HE
NOTIFIED THEM THAT THEY MUST LEAVE, THAT IF THEY DID NOT LEAVE HE WOULD
ARREST THEM FOR TRESPASSING, AND THAT IF THEY RESISTED HE WOULD CHARGE
THEM WITH THAT AS WELL.  SOME OF THE STUDENTS LEFT BUT OTHERS,
INCLUDING PETITIONERS, REMAINED AND THEY WERE ARRESTED.  ON APPEAL THE
CONVICTIONS WERE AFFIRMED BY THE FLORIDA CIRCUIT COURT AND THEN BY THE
FLORIDA DISTRICT COURT OF APPEAL, 175 SO. 2D 249.  THAT BEING THE
HIGHEST STATE COURT TO WHICH THEY COULD APPEAL, PETITIONERS APPLIED TO
US FOR CERTIORARI CONTENDING THAT, IN VIEW OF PETITIONERS' PURPOSE TO
PROTEST AGAINST JAIL AND OTHER SEGREGATION POLICIES, THEIR CONVICTION
DENIED THEM "RIGHTS OF FREE SPEECH, ASSEMBLY, PETITION, DUE PROCESS OF
LAW AND EQUAL PROTECTION OF THE LAWS AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES."  ON THIS "QUESTION
PRESENTED" WE GRANTED CERTIORARI.  382 U.S. 1023.  PETITIONERS PRESENT
THEIR ARGUMENT ON THIS QUESTION IN FOUR SEPARATE POINTS, AND FOR
CONVENIENCE WE DEAL WITH EACH OF THEIR POINTS IN THE ORDER IN WHICH
THEY PRESENT THEM. 

                        I. 

PETITIONERS HAVE INSISTED FROM THE BEGINNING OF THIS CASE THAT IT IS
CONTROLLED BY AND MUST BE REVERSED BECAUSE OF OUR PRIOR CASES OF
EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, AND COX V. LOUISIANA, 379 U.S.
536, 559.  WE CANNOT AGREE. 

THE EDWARDS CASE, LIKE THIS ONE, DID COME UP WHEN A NUMBER OF PERSONS
DEMONSTRATED ON PUBLIC PROPERTY AGAINST THEIR STATE'S SEGREGATION
POLICIES.  THEY ALSO SANG HYMNS AND DANCED, AS DID THE DEMONSTRATORS IN
THIS CASE.  BUT HERE THE ANALOGIES TO THIS CASE END.  IN EDWARDS, THE
DEMONSTRATORS WENT TO THE SOUTH CAROLINA STATE CAPITOL GROUNDS TO
PROTEST.  IN THIS CASE THEY WENT TO THE JAIL.  TRADITIONALLY, STATE
CAPITOL GROUNDS ARE OPEN TO THE PUBLIC.  JAILS, BUILT FOR SECURITY
PURPOSES, ARE NOT.  THE DEMONSTRATORS AT THE SOUTH CAROLINA CAPITOL
WENT IN THROUGH A PUBLIC DRIVEWAY AND AS THEY ENTERED THEY WERE TOLD BY
STATE OFFICIALS THERE THAT THEY HAD A RIGHT AS CITIZENS TO GO THROUGH
THE STATE HOUSE GROUNDS AS LONG AS THEY WERE PEACEFUL.  HERE THE
DEMONSTRATORS ENTERED THE JAIL GROUNDS THROUGH A DRIVEWAY USED ONLY FOR
JAIL PURPOSES AND WITHOUT WARNING TO OR PERMISSION FROM THE SHERIFF. 
MORE IMPORTANTLY, SOUTH CAROLINA SOUGHT TO PROSECUTE ITS STATE CAPITOL
DEMONSTRATORS BY CHARGING THEM WITH THE COMMON-LAW CRIME OF BREACH OF
THE PEACE.  THIS COURT IN EDWARDS TOOK PAINS TO POINT OUT AT LENGTH THE
INDEFINITE, LOOSE, AND BROAD NATURE OF THIS CHARGE; INDEED, THIS COURT
POINTED OUT AT P. 237, THAT THE SOUTH CAROLINA SUPREME COURT HAD ITSELF
DECLARED THAT THE "BREACH OF THE PEACE" CHARGE IS "NOT SUSCEPTIBLE OF
EXACT DEFINITION."  SOUTH CAROLINA'S POWER TO PROSECUTE, IT WAS
EMPHASIZED AT P. 236, WOULD HAVE BEEN DIFFERENT HAD THE STATE PROCEEDED
UNDER A "PRECISE AND NARROWLY DRAWN REGULATORY STATUTE EVINCING A
LEGISLATIVE JUDGMENT THAT CERTAIN SPECIFIC CONDUCT BE LIMITED OR
PROSCRIBED" SUCH AS, FOR EXAMPLE, "LIMITING THE PERIODS DURING WHICH
THE STATE HOUSE GROUNDS WERE OPEN TO THE PUBLIC  ...  ."  THE SOUTH
CAROLINA BREACH-OF-THE-PEACE STATUTE WAS THUS STRUCK DOWN AS BEING SO
BROAD AND ALL-EMBRACING AS TO JEOPARDIZE SPEECH, PRESS, ASSEMBLY AND
PETITION, UNDER THE CONSTITUTIONAL DOCTRINE ENUNCIATED IN CANTWELL V.
CONNECTICUT, 310 U.S. 296, 307-308, AND FOLLOWED IN MANY SUBSEQUENT
CASES.  AND IT WAS ON THIS SAME GROUND OF VAGUENESS THAT IN COX V.
LOUISIANA, SUPRA, AT 551-552, THE LOUISIANA BREACH-OF-THE-PEACE LAW
USED TO PROSECUTE COX WAS INVALIDATED. 

THE FLORIDA TRESPASS STATUTE UNDER WHICH THESE PETITIONERS WERE
CHARGED CANNOT BE CHALLENGED ON THIS GROUND.  IT IS AIMED AT CONDUCT OF
ONE LIMITED KIND, THAT IS, FOR ONE PERSON OR PERSONS TO TRESPASS UPON
THE PROPERTY OF ANOTHER WITH A MALICIOUS AND MISCHIEVOUS INTENT.  THERE
IS NO LACK OF NOTICE IN THIS LAW, NOTHING TO ENTRAP OR FOOL THE
UNWARY. 

PETITIONERS SEEM TO ARGUE THAT THE FLORIDA TRESPASS LAW IS VOID FOR
VAGUENESS BECAUSE IT REQUIRES A TRESPASS TO BE "WITH A MALICIOUS AND
MISCHIEVOUS INTENT  ...  ."  BUT THESE WORDS DO NOT BROADEN THE SCOPE
OF TRESPASS SO AS TO MAKE IT COVER A MULTITUDE OF TYPES OF CONDUCT AS
DOES THE COMMON-LAW BREACH-OF-THE-PEACE CHARGE.  ON THE CONTRARY, THESE
WORDS NARROW THE SCOPE OF THE OFFENSE.  THE TRIAL COURT CHARGED THE
JURY AS TO THEIR MEANING AND PETITIONERS HAVE NOT ARGUED THAT THIS
DEFINITION, SET OUT BELOW, (FN2) IS NOT A REASONABLE AND CLEAR
DEFINITION OF THE TERMS.  THE USE OF THESE TERMS IN THE STATUTE,
INSTEAD OF CONTRIBUTING TO UNCERTAINTY AND MISUNDERSTANDING, ACTUALLY
MAKES ITS MEANING MORE UNDERSTANDABLE AND CLEAR. 

                                         II. 

PETITIONERS IN THIS COURT INVOKE THE DOCTRINE OF ABATEMENT ANNOUNCED
BY THIS COURT IN HAMM V. CITY OF ROCK HILL, 379 U.S. 306.  BUT THAT
HOLDING WAS THAT THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 241, WHICH MADE
IT UNLAWFUL FOR PLACES OF PUBLIC ACCOMMODATION TO DENY SERVICE TO ANY
PERSON BECAUSE OF RACE, EFFECTED AN ABATEMENT OF PROSECUTIONS OF
PERSONS FOR SEEKING SUCH SERVICES THAT AROSE PRIOR TO THE PASSAGE OF
THE ACT.  BUT THIS CASE IN NO WAY INVOLVES PROSECUTION OF PETITIONERS
FOR SEEKING SERVICE IN ESTABLISHMENTS COVERED BY THE ACT.  IT INVOLVES
ONLY AN ALLEGED TRESPASS ON JAIL GROUNDS - A TRESPASS WHICH CAN BE
PROSECUTED REGARDLESS OF THE FACT THAT IT IS THE MEANS OF PROTESTING
SEGREGATION OF ESTABLISHMENTS COVERED BY THE ACT. 

                              III. 

PETITIONERS NEXT ARGUE THAT "PETTY CRIMINAL STATUTES MAY NOT BE USED
TO VIOLATE MINORITIES' CONSTITUTIONAL RIGHTS."  THIS OF COURSE IS TRUE
BUT THIS ABSTRACT PROPOSITION GETS US NOWHERE IN DECIDING THIS CASE. 

                                         IV. 

PETITIONERS HERE CONTEND THAT "PETITIONERS' CONVICTIONS ARE BASED ON
A TOTAL LACK OF RELEVANT EVIDENCE."  IF TRUE, THIS WOULD BE A DENIAL OF
DUE PROCESS UNDER GARNER V. LOUISIANA, 368 U.S. 157, AND THOMPSON V.
CITY OF LOUISVILLE, 362 U.S. 199.  BOTH IN THE PETITION FOR CERTIORARI
AND IN THE BRIEF ON THE MERITS PETITIONERS STATE THAT THEIR SUMMARY OF
THE EVIDENCE "DOES NOT CONFLICT WITH THE FACTS CONTAINED IN THE CIRCUIT
COURT'S OPINION" WHICH WAS IN EFFECT AFFIRMED BY THE DISTRICT COURT OF
APPEAL.  175 SO. 2D 249.  THAT STATEMENT IS CORRECT AND PETITIONERS'
SUMMARY OF FACTS, AS WELL AS THAT OF THE CIRCUIT COURT, SHOWS AN
ABUNDANCE OF FACTS TO SUPPORT THE JURY'S VERDICT OF GUILTY IN THIS
CASE. 

IN SUMMARY BOTH THESE STATEMENTS SHOW TESTIMONY AMPLE TO PROVE THIS:
DISTURBED AND UPSET BY THE ARREST OF THEIR SCHOOLMATES THE DAY BEFORE,
A LARGE NUMBER OF FLORIDA A.&M. STUDENTS ASSEMBLED ON THE SCHOOL
GROUNDS AND DECIDED TO MARCH DOWN TO THE COUNTY JAIL.  SOME APPARENTLY
WANTED TO BE PUT IN JAIL TOO, ALONG WITH THE STUDENTS ALREADY THERE. 
(FN3)  A GROUP OF AROUND 200 MARCHED FROM THE SCHOOL AND ARRIVED AT THE
JAIL SINGING AND CLAPPING.  (FN4)  THEY WENT DIRECTLY TO THE JAIL-DOOR
ENTRANCE WHERE THEY WERE MET BY A DEPUTY SHERIFF, EVIDENTLY SURPRISED
BY THEIR ARRIVAL.  HE ASKED THEM TO MOVE BACK, CLAIMING THEY WERE
BLOCKING THE ENTRANCE TO THE JAIL AND FEARING THAT THEY MIGHT ATTEMPT
TO ENTER THE JAIL.  THEY MOVED BACK PART OF THE WAY, WHERE THEY STOOD
OR SAT, SINGING, CLAPPING AND DANCING, ON THE JAIL DRIVEWAY AND ON AN
ADJACENT GRASSY AREA UPON THE JAIL PREMISES.  THIS PARTICULAR JAIL
ENTRANCE AND DRIVEWAY WERE NOT NORMALLY USED BY THE PUBLIC, BUT BY THE
SHERIFF'S DEPARTMENT FOR TRANSPORTING PRISONERS TO AND FROM THE COURTS
SEVERAL BLOCKS AWAY AND BY COMMERCIAL CONCERNS FOR SERVICING THE JAIL. 
EVEN AFTER THEIR PARTIAL RETREAT, THE DEMONSTRATORS CONTINUED TO BLOCK
VEHICULAR PASSAGE OVER THIS DRIVEWAY UP TO THE ENTRANCE OF THE JAIL. 
(FN5) SOMEONE CALLED THE SHERIFF WHO WAS AT THE MOMENT APPARENTLY
CONFERRING WITH ONE OF THE STATE COURT JUDGES ABOUT INCIDENTS CONNECTED
WITH PRIOR ARRESTS FOR DEMONSTRATIONS.  WHEN THE SHERIFF RETURNED TO
THE JAIL, HE IMMEDIATELY INQUIRED IF ALL WAS SAFE INSIDE THE JAIL AND
WAS TOLD IT WAS.  HE THEN ENGAGED IN A CONVERSATION WITH TWO OF THE
LEADERS.  HE TOLD THEM THAT THEY WERE TRESPASSING UPON JAIL PROPERTY
AND THAT HE WOULD GIVE THEM 10 MINUTES TO LEAVE OR HE WOULD ARREST
THEM.  NEITHER OF THE LEADERS DID ANYTHING TO DISPERSE THE CROWD, AND
ONE OF THEM TOLD THE SHERIFF THAT THEY WANTED TO GET ARRESTED.  A LOCAL
MINISTER TALKED WITH SOME OF THE DEMONSTRATORS AND TOLD THEM NOT TO
ENTER THE JAIL, BECAUSE THEY COULD NOT ARREST THEMSELVES, BUT JUST TO
REMAIN WHERE THEY WERE.  AFTER ABOUT 10 MINUTES, THE SHERIFF, IN A
VOICE LOUD ENOUGH TO BE HEARD BY ALL, TOLD THE DEMONSTRATORS THAT HE
WAS THE LEGAL CUSTODIAN OF THE JAIL AND ITS PREMISES, THAT THEY WERE
TRESPASSING ON COUNTY PROPERTY IN VIOLATION OF THE LAW, THAT THEY
SHOULD ALL LEAVE FORTHWITH OR HE WOULD ARREST THEM, AND THAT IF THEY
ATTEMPTED TO RESIST ARREST, HE WOULD CHARGE THEM WITH THAT AS A
SEPARATE OFFENSE.  SOME OF THE GROUP THEN LEFT.  OTHERS, INCLUDING ALL
PETITIONERS, DID NOT LEAVE.  SOME OF THEM SAT DOWN.  IN A FEW MINUTES,
REALIZING THAT THE REMAINING DEMONSTRATORS HAD NO INTENTION OF LEAVING,
THE SHERIFF ORDERED HIS DEPUTIES TO SURROUND THOSE REMAINING ON JAIL
PREMISES AND PLACE THEM, 107 DEMONSTRATORS, UNDER ARREST.  THE SHERIFF
UNEQUIVOCALLY TESTIFIED THAT HE DID NOT ARREST ANY PERSONS OTHER THAN
THOSE WHO WERE ON THE JAIL PREMISES.  OF THE THREE PETITIONERS
TESTIFYING, TWO INSISTED THAT THEY WERE ARRESTED BEFORE THEY HAD A
CHANCE TO LEAVE, HAD THEY WANTED TO, AND ONE TESTIFIED THAT SHE DID NOT
INTEND TO LEAVE.  THE SHERIFF AGAIN EXPLICITLY TESTIFIED THAT HE DID
NOT ARREST ANY PERSON WHO WAS ATTEMPTING TO LEAVE. 

UNDER THE FOREGOING TESTIMONY THE JURY WAS AUTHORIZED TO FIND THAT
THE STATE HAD PROVEN EVERY ESSENTIAL ELEMENT OF THE CRIME, AS IT WAS
DEFINED BY THE STATE COURT.  THAT INTERPRETATION IS, OF COURSE, BINDING
ON US, LEAVING ONLY THE QUESTION OF WHETHER CONVICTION OF THE STATE
OFFENSE, THUS DEFINED, UNCONSTITUTIONALLY DEPRIVES PETITIONERS OF THEIR
RIGHTS TO FREEDOM OF SPEECH, PRESS, ASSEMBLY OR PETITION.  WE HOLD IT
DOES NOT.  THE SHERIFF, AS JAIL CUSTODIAN, HAD POWER, AS THE STATE
COURTS HAVE HERE HELD, TO DIRECT THAT THIS LARGE CROWD OF PEOPLE GET
OFF THE GOUNDS.  THERE IS NOT A SHRED OF EVIDENCE IN THIS RECORD THAT
THIS POWER WAS EXERCISED, OR THAT ITS EXERCISE WAS SANCTIONED BY THE
LOWER COURTS, BECAUSE THE SHERIFF OBJECTED TO WHAT WAS BIENG SUNG OR
SAID BY THE DEMONSTRATORS OR BECAUSE HE DISAGREED WITH THE OBJECTIVES
OF THEIR PROTEST.  THE RECORD REVEALS THAT HE OBJECTED ONLY TO THEIR
PRESENCE ON THAT PART OF THE JAIL GROUNDS RESERVED FOR JAIL USES. 
THERE IS NO EVIDENCE AT ALL THAT ON ANY OTHER OCCASION HAD SIMILARLY
LARGE GROUPS OF THE PUBLIC BEEN PERMITTED TO GATHER ON THIS PORTION OF
THE JAIL GROUNDS FOR ANY PURPOSE.  (FN6)  NOTHING IN THE CONSTITUTION
OF THE UNITED STATES PREVENTS FLORIDA FROM EVEN-HANDED ENFORCEMENT OF
ITS GENERAL TRESPASS STATUTE AGAINST THOSE REFUSING TO OBEY THE
SHERIFF'S ORDER TO REMOVE THEMSELVES FROM WHAT AMOUNTED TO THE
CURTILAGE OF THE JAILHOUSE.  THE STATE, NO LESS THAN A PRIVATE OWNER OF
PROPERTY, HAS POWER TO PRESERVE THE PROPERTY UNDER ITS CONTROL FOR THE
USE TO WHICH IT IS LAWFULLY DEDICATED.  FOR THIS REASON THERE IS NO
MERIT TO THE PETITIONERS' ARGUMENT THAT THEY HAD A CONSTITUTIONAL RIGHT
TO STAY ON THE PROPERTY, OVER THE JAIL CUSTODIAN'S OBJECTIONS, BECAUSE
THIS "AREA CHOSEN FOR THE PEACEFUL CIVIL RIGHTS DEMONSTRATION WAS NOT
ONLY 'REASONABLE' BUT ALSO PARTICULARLY APPRIPRIATE  ...  ."  SUCH AN
ARGUMENT HAS AS ITS MAJOR UNARTICULATED PREMISE THE ASSUMPTION THAT
PEOPLE WHO WANT TO PROPAGANDIZE PROTESTS OR VIEWS HAVE A CONSTITUTIONAL
RIGHT TO DO SO WHENEVER AND HOWEVER AND WHEREVER THEY PLEASE.  THAT
CONCEPT OF CONSTITUTIONAL LAW WAS VIGOROUSLY AND FORTHRIGHTLY REJECTED
IN TWO OF THE CASES PETITIONERS RELY ON, COX V. LOUISIANA, SUPRA, AT
554-555 AND 563-564.  (FN7)  WE REJECT IT AGAIN.  THE UNITED STATES
CONSTITUTION DOES NOT FORBID A STATE TO CONTROL THE USE OF ITS OWN
PROPERTY FOR ITS OWN LAWFUL NONDISCRIMINATORY PURPOSE. 

THESE JUDGMENTS ARE AFFIRMED.    FN1  "EVERY TRESPASS UPON THE
PROPERTY OF ANOTHER, COMMITTED WITH A MALICIOUS AND MISCHIEVOUS INTENT,
THE PUNISHMENT OF WHICH IS NOT SPECIALLY PROVIDED FOR, SHALL BE
PUNISHED BY IMPRISONMENT NOT EXCEEDING THREE MONTHS, OR BY FINE NOT
EXCEEDING ONE HUNDRED DOLLARS."  FLA. STAT. SEC 821.18 (1965). 

FN2  "'MALICIOUS' MEANS WRONGFUL, YOU REMEMBER BACK IN THE ORIGINAL
CHARGE, THE STATE HAS TO PROVE BEYOND A REASONABLE DOUBT THERE WAS A
MALICIOUS AND MISCHIEVOUS INTENT.  THE WORD 'MALICIOUS' MEANS THAT THE
WRONGFUL ACT SHALL BE DONE VOLUNTARILY, UNLAWFULLY AND WITHOUT EXCUSE
OR JUSTIFICATION.  THE WORD 'MALICIOUS' THAT IS USED IN THESE
AFFIDAVITS DOES NOT NECESSARILY ALLEGE NOR REQUIRE THE STATE TO PROVE
THAT THE DEFENDANT HAD ACTUAL MALICE IN HIS MIND AT THE TIME OF THE
ALLEGED TRESPASS.  ANOTHER WAY OF STATING THE DEFINITION OF 'MALICIOUS'
IS BY 'MALICIOUS' IS MEANT THE ACT WAS DONE KNOWINGLY AND WILLFULLY AND
WITHOUT ANY LEGAL JUSTIFICATION. 

"'MISCHIEVOUS,' WHICH IS ALSO REQUIRED, MEANS THAT THE ALLEGED
TRESPASS SHALL BE INCLINED TO CAUSE PETTY AND TRIVIAL TROUBLE,
ANNOYANCE AND VEXATION TO OTHERS IN ORDER FOR YOU TO FIND THAT THE
ALLEGED TRESPASS WAS COMMITTED WITH MISCHIEVOUS INTENT."  R. 74. 

FN3  THE THREE PETITIONERS WHO TESTIFIED INSISTED THAT THEY HAD NOT
COME TO THE JAIL FOR THE PURPOSE OF BEING ARRESTED.  BUT BOTH THE
SHERIFF AND A DEPUTY TESTIFIED THAT THEY HEARD SEVERAL OF THE
DEMONSTRATORS PRESENT AT THE JAIL LOUDLY PROCLAIM THEIR DESIRE TO BE
ARRESTED.  INDEED, THIS LATTER VERSION IS BORNE OUT BY THE FACT THAT,
THOUGH ASSERTEDLY PROTESTING THE PRIOR ARRESTS OF THEIR FELLOW STUDENTS
AND THE CITY'S SEGREGATION POLICIES, NONE OF THE DEMONSTRATORS CARRIED
ANY SIGNS AND UPON ARRIVING AT THE JAIL, NO SPEECHES OR OTHER VERBAL
PROTESTS WERE MADE. 

FN4  THERE IS NO EVIDENCE THAT ANY ATTEMPT WAS MADE BY LAW
ENFORCEMENT OFFICERS TO INTERFERE WITH THIS MARCH, OR, FOR THAT MATTER,
THAT SUCH OFFICERS EVEN KNEW OF THE MARCH OR ITS ULTIMATE DESTINATION. 

FN5  ALTHOUGH SOME OF THE PETITIONERS TESTIFIED THAT THEY HAD NO
INTENTION OF INTERFERING WITH VEHICULAR TRAFFIC TO AND FROM THE JAIL
ENTRANCE AND THAT THEY NOTICED NO VEHICLE TRYING TO ENTER OR LEAVE THE
DRIVEWAY, THE DEPUTY SHERIFF TESTIFIED THAT IT WOULD HAVE BEEN
IMPOSSIBLE FOR AUTOMOBILES TO DRIVE UP TO THE JAIL ENTRANCE AND THAT
ONE SERVICEMAN, FINISHED WITH HIS BUSINESS IN THE JAIL, WAITED INSIDE
BECAUSE THE DEMONSTRATORS WERE SITTING AROUND AND LEANING AGAINST HIS
TRUCK PARKED OUTSIDE.  THE SHERIFF TESTIFIED THAT THE TIME THE
DEMONSTRATORS WERE THERE, BETWEEN 9:30 AND 10 MONDAY MORNING, WAS
GENERALLY A VERY BUSY TIME FOR USING THE JAIL ENTRANCE TO TRANSPORT
WEEKEND INMATES TO THE COURTS AND FOR TRADESMEN TO MAKE SERVICE CALLS
AT THE JAIL. 

FN6  IN COX V. LOUISIANA, SUPRA, AT 558, THE COURT EMPHASIZED:  "IT
IS, OF COURSE, UNDISPUTED THAT APPROPRIATE, LIMITED DISCRETION, UNDER
PROPERLY DRAWN STATUTES OR ORDINANCES, CONCERNING THE TIME, PLACE,
DURATION, OR MANNER OF USE OF THE STREETS FOR PUBLIC ASSEMBLIES MAY BE
VESTED IN ADMINISTRATIVE OFFICIALS, PROVIDED THAT SUCH LIMITED
DISCRETION IS 'EXERCISED WITH "UNIFORMITY OF METHOD OF TREATMENT UPON
THE FACTS OF EACH APPLICATION, FREE FROM IMPROPER OR INAPPROPRIATE
CONSIDERATIONS AND FROM UNFAIR DISCRIMINATION"  ...  AND WITH A
"SYSTEMATIC, CONSISTENT AND JUST ORDER OF TREATMENT, WITH REFERENCE TO
THE CONVENIENCE OF PUBLIC USE OF THE HIGHWAYS  ...  ."'" 

FN7  "THE RIGHTS OF FREE SPEECH AND ASSEMBLY, WHILE FUNDAMENTAL IN
OUR DEMOCRATIC SOCIETY, STILL DO NOT MEAN THAT EVERYONE WITH OPINIONS
OR BELIEFS TO EXPRESS MAY ADDRESS A GROUP AT ANY PUBLIC PLACE AND AT
ANY TIME.  THE CONSTITUTIONAL GUARANTEE OF LIBERTY IMPLIES THE
EXISTENCE OF AN ORGANIZED SOCIETY MAINTAINING PUBLIC ORDER, WITHOUT
WHICH LIBERTY ITSELF WOULD BE LOST IN THE EXCESSES OF ANARCHY  ...  .
A GROUP OF DEMONSTRATORS COULD NOT INSIST UPON THE RIGHT TO CORDON OFF
A STREET, OR ENTRANCE TO A PUBLIC OR PRIVATE BUILDING, AND ALLOW NO ONE
TO PASS WHO DID NOT AGREE TO LISTEN TO THEIR EXHORTATIONS."  379 U.S.,
AT 554-555. 

"THE CONDUCT WHICH IS THE SUBJECT OF THIS STATUTE - PICKETING AND
PARADING - IS SUBJECT TO REGULATION EVEN THOUGH INTERTWINED WITH
EXPRESSION AND ASSOCIATION.  THE EXAMPLES ARE MANY OF THE APPLICATION
BY THIS COURT OF THE PRINCIPLE AND CERTAIN FORMS OF CONDUCT MIXED WITH
SPEECH MAY BE REGULATED OR PROHIBITED."  ID., AT 563. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN, AND MR. JUSTICE FORTAS CONCUR, DISSENTING. 

THE FIRST AMENDMENT, APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH (EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 235), PROVIDES
THAT "CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING  ...  THE RIGHT OF THE
PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A
REDRESS OF GRIEVANCES."  THESE RIGHTS, ALONG WITH RELIGION, SPEECH, AND
PRESS, ARE PREFERRED RIGHTS OF THE CONSTITUTION, MADE SO BY REASON OF
THAT EXPLICIT GUARANTEE AND WHAT EDMOND CAHN IN CONFRONTING INJUSTICE
(1966) REFERRED TO AS "THE FIRSTNESS OF THE FIRST AMENDMENT."  (FN1)
WITH ALL RESPECT, THEREFORE, THE COURT ERRS IN TREATING THE CASE AS IF
IT WERE AN ORDINARY TRESPASS CASE OR AN ORDINARY PICKETING CASE. 

THE JAILHOUSE, LIKE AN EXECUTIVE MANSION, A LEGISLATIVE CHAMBER, A
COURTHOUSE, OR THE STATEHOUSE ITSELF (EDWARDS V. SOUTH CAROLINA, SUPRA)
IS ONE OF THE SEATS OF GOVERNMENT, WHETHER IT BE THE TOWER OF LONDON,
THE BASTILLE, OR A SMALL COUNTY JAIL.  AND WHEN IT HOUSES POLITICAL
PRISONERS OR THOSE WHO MANY THINK ARE UNJUSTLY HELD, IT IS AN OBVIOUS
CENTER FOR PROTEST.  THE RIGHT TO PETITION FOR THE REDRESS OF
GRIEVANCES HAS AN ANCIENT HISTORY  (FN2)  AND IS NOT LIMITED TO WRITING
A LETTER OR SENDING A TELEGRAM TO A CONGRESSMAN; IT IS NOT CONFINED TO
APPEARING BEFORE THE LOCAL CITY COUNCIL, OR WRITING LETTERS TO THE
PRESIDENT OR GOVERNOR OR MAYOR.  SEE N.A.A.C.P. V. BUTTON, 371 U.S.
415, 429-431.  CONVENTIONAL METHODS OF PETITIONING MAY BE, AND OFTEN
HAVE BEEN, SHUT OFF TO LARGE GROUPS OF OUR CITIZENS.  LEGISLATORS MAY
TURN DEAF EARS; FORMAL COMPLAINTS MAY BE ROUTED ENDLESSLY THROUGH A
BUREAUCRATIC MAZE; COURTS MAY LET THE WHEELS OF JUSTICE GRIND VERY
SLOWLY.  THOSE WHO DO NOT CONTROL TELEVISION AND RADIO, THOSE WHO
CANNOT AFFORD TO ADVERTISE IN NEWSPAPERS OR CIRCULATE ELABORATE
PAMPHLETS MAY HAVE ONLY A MORE LIMITED TYPE OF ACCESS TO PUBLIC
OFFICIALS.  THEIR METHODS SHOULD NOT BE CONDEMNED AS TACTICS OF
OBSTRUCTION AND HARASSMENT AS LONG AS THE ASSEMBLY AND PETITION ARE
PEACEABLE, AS THESE WERE. 

THERE IS NO QUESTION THAT PETITIONERS HAD AS THEIR PURPOSE A PROTEST
AGAINST THE ARREST OF FLORIDA A.&.M. STUDENTS FOR TRYING TO INTEGRATE
PUBLIC THEATRES.  THE SHERIFF'S TESTIMONY INDICATES THAT HE WELL
UNDERSTOOD THE PURPOSE OF THE RALLY.  THE PETITIONERS WHO TESTIFIED
UNEQUIVOCALLY STATED THAT THE GROUP WAS PROTESTING THE ARRESTS, AND
STATE AND LOCAL POLICIES OF SEGREGATION, INCLUDING SEGREGATION OF THE
JAIL.  THIS TESTIMONY WAS NOT CONTRADICTED OR EVEN QUESTIONED.  THE
FACT THAT NO ONE GAVE A FORMAL SPEECH, THAT NO ELABORATE HANDBILLS WERE
DISTRIBUTED, AND THAT THE GROUP WAS NOT LADEN WITH SIGNS WOULD SEEM TO
BE IMMATERIAL.  SUCH METHODS ARE NOT THE SINE QUA NON OF PETITIONING
FOR THE REDRESS OF GRIEVANCES.  THE GROUP DID SING "FREEDOM" SONGS. 
AND HISTORY SHOWS THAT A SONG CAN BE A POWERFUL TOOL OF PROTEST.  SEE
COX V. LOUISIANA, 379 U.S. 536, 546-548.  THERE WAS NO VIOLENCE; NO
THREAT OF VIOLENCE; NO ATTEMPTED JAIL BREAK; NO STORMING OF A PRISON;
NO PLAN OR PLOT TO DO ANYTHING BUT PROTEST.  THE EVIDENCE IS
UNCONTRADICTED THAT THE PETITIONERS' CONDUCT DID NOT UPSET THE
JAILHOUSE ROUTINE; THINGS WENT ON AS THEY NORMALLY WOULD.  NONE OF THE
GROUP ENTERED THE JAIL.  INDEED, THEY MOVED BACK FROM THE ENTRANCE AS
THEY WERE INSTRUCTED.  THERE WAS NO SHOVING, NO PUSHING, NO DISORDER OR
THREAT OF RIOT.  IT IS SAID THAT SOME OF THE GROUP BLOCKED PART OF THE
DRIVEWAY LEADING TO THE JAIL ENTRANCE.  THE CHIEF JAILER, TO BE SURE,
TESTIFIED THAT VEHICLES WOULD NOT HAVE BEEN ABLE TO USE THE DRIVEWAY. 
NEVER DID THE STUDENTS LOCATE THEMSELVES SO AS TO CAUSE INTERFERENCE
WITH PERSONS OR VEHICLES GOING TO OR COMING FROM THE JAIL.  INDEED, IT
IS UNDISPUTED THAT THE SHERIFF AND DEPUTY SHERIFF, IN SEPARATE CARS,
WERE ABLE TO DRIVE UP THE DRIVEWAY TO THE PARKING PLACES NEAR THE
ENTRANCE AND THAT NO ONE OBSTRUCTED THEIR PATH.  FURTHER, IT IS
UNDISPUTED THAT THE ENTRANCE TO THE JAIL WAS NOT BLOCKED.  AND WHENEVER
THE STUDENTS WERE REQUESTED TO MOVE THEY DID SO.  IF THERE WAS
CONGESTION, THE SOLUTION WAS A FURTHER REQUEST TO MOVE TO LAWNS OR
PARKING AREAS, NOT COMPLETE EJECTION AND ARREST.  THE CLAIM IS MADE
THAT A TRADESMAN WAITED INSIDE THE JAIL BECAUSE SOME OF THE PROTESTANTS
WERE SITTING AROUND AND LEANING ON HIS TRUCK.  THE ONLY EVIDENCE
SUPPORTING SUCH A CONCLUSION IS THE TESTIMONY OF A DEPUTY SHERIFF THAT
THE TRADESMAN "CAME TO THE DOOR  ...  AND THEN DID NOT LEAVE."  HIS
REMAINING IS JUST AS CONSISTENT WITH A DESIRE TO SATISFY HIS CURIOSITY
AS IT IS WITH A RESTRAINT.  FINALLY, THE FACT THAT SOME OF THE
PROTESTANTS MAY HAVE FELT THEIR CAUSE SO JUST THAT THEY WERE WILLING TO
BE ARRESTED FOR MAKING THEIR PROTEST OUTSIDE THE JAIL SEEMS WHOLLY
IRRELEVANT.  A PETITION IS NONETHELESS A PETITION, THOUGH ITS FUTILITY
MAY MAKE MARTYRDOM ATTRACTIVE. 

WE DO VIOLENCE TO THE FIRST AMENDMENT WHEN WE PERMIT THIS "PETITION
FOR REDRESS OF GRIEVANCES" TO BE TURNED INTO A TRESPASS ACTION.  IT
DOES NOT HELP TO ANALOGIZE THIS PROBLEM TO THE PROBLEM OF PICKETING. 
PICKETING IS A FORM OF PROTEST USUALLY DIRECTED AGAINST PRIVATE
INTERESTS.  I DO NOT SEE HOW RULES GOVERNING PICKETING IN GENERAL ARE
RELEVANT TO THIS EXPRESS CONSTITUTIONAL RIGHT TO ASSEMBLE AND TO
PETITION FOR REDRESS OF GRIEVANCES.  IN THE FIRST PLACE THE JAILHOUSE
GROUNDS WERE NOT MARKED WITH "NO TRESPASSING]"  SIGNS, NOR DOES
RESPONDENT CLAIM THAT THE PUBLIC WAS GENERALLY EXCLUDED FROM THE
GROUNDS.  ONLY THE SHERIFF'S FIAT TRANSFORMED LAWFUL CONDUCT INTO AN
UNLAWFUL TRESPASS.  TO SAY THAT A PRIVATE OWNER COULD HAVE DONE THE
SAME IF THE RALLY HAD TAKEN PLACE ON PRIVATE PROPERTY IS TO SPEAK OF A
DIFFERENT CASE, AS AN ASSEMBLY AND A PETITION FOR REDRESS OR GRIEVANCES
RUN TO GOVERNMENT, NOT TO PRIVATE PROPRIETORS. 

THE COURT FORGETS THAT PRIOR TO THIS DAY OUR DECISIONS HAVE
DRASTICALLY LIMITED THE APPLICATION OF STATE STATUTES INHIBITING THE
RIGHT TO GO PEACEFULLY ON PUBLIC PROPERTY TO EXERCISE FIRST AMENDMENT
RIGHTS.  AS MR. JUSTICE ROBERTS WROTE IN HAGUE V. C.I.O., 307 U.S. 496,
515-516: 

"  ...  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." 

SUCH WAS THE CASE OF EDWARDS V. SOUTH CAROLINA, WHERE AGGRIEVED
PEOPLE "PEACEABLY ASSEMBLED AT THE SITE OF THE STATE GOVERNMENT" TO
EXPRESS THEIR GRIEVANCES TO THE CITIZENS OF THE STATE AS WELL AS TO THE
LEGISLATURE.  SUPRA, AT 235.  EDWARDS WAS IN THE TRADITION OF COX V.
NEW HAMPSHIRE, 312 U.S. 569, WHERE THE PUBLIC STREETS WERE SAID TO BE
"IMMEMORIALLY ASSOCIATED" WITH "THE RIGHT OF ASSEMBLY AND THE
OPPORTUNITIES FOR THE COMMUNICATION OF THOUGHT AND THE DISCUSSION OF
PUBLIC QUESTIONS."  ID., AT 574.  WHEN WE ALLOW FLORIDA TO CONSTRUE HER
"MALICIOUS TRESPASS" STATUTE TO BAR A PERSON FROM GOING ON PROPERTY
KNOWING IT IS NOT HIS OWN AND TO APPLY THAT PROHIBITION TO PUBLIC
PROPERTY, WE DISCARD COX AND EDWARDS.  WOULD THE CASE BE ANY DIFFERENT
IF, AS IS COMMON, THE DEMONSTRATION TOOK PLACE OUTSIDE A BUILDING WHICH
HOUSED BOTH THE JAIL AND THE LEGISLATIVE BODY?  I THINK NOT. 

THERE MAY BE SOME PUBLIC PLACES WHICH ARE SO CLEARLY COMMITTED TO
OTHER PURPOSES THAT THEIR USE FOR THE AIRING OF GRIEVANCES IS
ANOMALOUS.  THERE MAY BE SOME INSTANCES IN WHICH ASSEMBLIES AND
PETITIONS FOR REDRESS OF GRIEVANCES ARE NOT CONSISTENT WITH OTHER
NECESSARY PURPOSES OF PUBLIC PROPERTY.  A NOISY MEETING MAY BE OUT OF
KEEPING WITH THE SERENITY OF THE STATEHOUSE OR THE QUIET OF THE
COURTHOUSE.  NO ONE, FOR EXAMPLE, WOULD SUGGEST THAT THE SENATE GALLERY
IS THE PROPER PLACE FOR A VOCIFEROUS PROTEST RALLY.  AND IN OTHER CASES
IT MAY BE NECESSARY TO ADJUST THE RIGHT TO PETITION FOR REDRESS OF
GRIEVANCES TO THE OTHER INTERESTS INHERING IN THE USES TO WHICH THE
PUBLIC PROPERTY IS NORMALLY PUT.  SEE COX V. NEW HAMPSHIRE, SUPRA;
POULOS V. NEW HAMPSHIRE, 345 U.S. 395.  BUT THIS IS QUITE DIFFERENT
FROM SAYING THAT ALL PUBLIC PLACES ARE OFF LIMITS TO PEOPLE WITH
GRIEVANCES.  SEE HAGUE V. C.I.O., SUPRA; COX V. NEW HAMPSHIRE, SUPRA;
JAMISON V. TEXAS, 318 U.S. 413, 415-416; EDWARDS V. SOUTH CAROLINA,
SUPRA.  AND IT IS FARTHER YET FROM SAYING THAT THE "CUSTODIAN" OF THE
PUBLIC PROPERTY IN HIS DISCRETION CAN DECIDE WHEN PUBLIC PLACES SHALL
BE USED FOR THE COMMUNICATION OF IDEAS, ESPECIALLY THE CONSTITUTIONAL
RIGHT TO ASSEMBLE AND PETITION FOR REDRESS OF GRIEVANCES.  SEE HAGUE V.
C.I.O., SUPRA; SCHNEIDER V. STATE, 308 U.S. 147, 163-164; CANTWELL V.
CONNECTICUT, 310 U.S. 296; LARGENT V. TEXAS, 318 U.S. 418; NIEMOTKO V.
MARYLAND, 340 U.S. 268; SHUTTLESWORTH V. CITY OF BIRMINGHAM, 382 U.S.
87.  FOR TO PLACE SUCH DISCRETION IN ANY PUBLIC OFFICIAL, BE HE THE
"CUSTODIAN" OF THE PUBLIC PROPERTY OR THE LOCAL POLICE COMMISSIONER
(CF. KUNZ V. NEW YORK, 340 U.S. 290), IS TO PLACE THOSE WHO ASSERT
THEIR FIRST AMENDMENT RIGHTS AT HIS MERCY.  IT GIVES HIM THE AWESOME
POWER TO DECIDE WHOSE IDEAS MAY BE EXPRESSED AND WHO SHALL BE DENIED A
PLACE TO AIR THEIR CLAIMS AND PETITION THEIR GOVERNMENT.  SUCH POWER IS
OUT OF STEP WITH ALL OUR DECISIONS PRIOR TO TODAY WHERE WE HAVE
INSISTED THAT BEFORE A FIRST AMENDMENT RIGHT MAY BE CURTAILED UNDER THE
GUISE OF CRIMINAL LAW, ANY EVIL THAT MAY BE COLLATERAL TO THE EXERCISE
OF THE RIGHT, MUST BE ISOLATED AND DEFINED IN A "NARROWLY DRAWN"
STATUTE (CANTWELL V. CONNECTICUT, SUPRA, AT 307) LEST THE POWER TO
CONTROL EXCESSES OF CONDUCT BE USED TO SUPPRESS THE CONSTITUTIONAL
RIGHT ITSELF.  SEE STROMBERG V. CALIFORNIA, 283 U.S. 359, 369; HERNDON
V. LOWRY, 301 U.S. 242, 258-259; EDWARDS V. SOUTH CAROLINA, SUPRA, AT
238; N.A.A.C.P. V. BUTTON, SUPRA, AT 433. 

THAT TRAGIC CONSEQUENCE HAPPENS TODAY WHEN A TRESPASS LAW IS USED TO
BLUDGEON THOSE WHO PEACEFULLY EXERCISE A FIRST AMENDMENT RIGHT TO
PROTEST TO GOVERNMENT AGAINST ONE OF THE MOST GRIEVOUS OF ALL MODERN
OPPRESSIONS WHICH SOME OF OUR STATES ARE INFLICTING ON OUR CITIZENS. 

WHAT WE DO TODAY DISREGARDS THE ADMONITION IN DE JONGE V. OREGON, 299
U.S. 353, 364-365: 

"THESE FIRST AMENDMENT RIGHTS MAY BE ABUSED BY USING SPEECH OR PRESS
OR ASSEMBLY IN ORDER TO INCITE TO VIOLENCE AND CRIME.  THE PEOPLE
THROUGH THEIR LEGISLATURES MAY PROTECT THEMSELVES AGAINST THAT ABUSE. 
BUT THE LEGISLATIVE INTERVENTION CAN FIND CONSTITUTIONAL JUSTIFICATION
ONLY BY DEALING WITH THE ABUSE.  THE RIGHTS THEMSELVES MUST NOT BE
CURTAILED.  THE GREATER THE IMPORTANCE OF SAFEGUARDING THE COMMUNITY
FROM INCITEMENTS TO THE OVERTHROW OF OUR INSTITUTIONS BY FORCE AND
VIOLENCE, THE MORE IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE THE
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN
ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE
END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND
THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN
LIES THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF
CONSTITUTIONAL GOVERNMENT." 

TODAY A TRESPASS LAW IS USED TO PENALIZE PEOPLE FOR EXERCISING A
CONSTITUTIONAL RIGHT.  TOMORROW A DISORDERLY CONDUCT STATUTE, A BREACH
OF-THE-PEACE STATUTE, A VAGRANCY STATUTE WILL BE PUT TO THE SAME END. 
(FN3)  IT IS SAID THAT THE SHERIFF DID NOT MAKE THE ARRESTS BECAUSE OF
THE VIEWS WHICH PETITIONERS ESPOUSED.  THAT EXCUSE IS USUALLY GIVEN, AS
WE KNOW FROM THE MANY CASES INVOLVING ARRESTS OF MINORITY GROUPS FOR
BREACHES OF THE PEACE, UNLAWFUL ASSEMBLIES, AND PARADING WITHOUT A
PERMIT.  THE CHARGE AGAINST WILLIAM PENN, WHO PREACHED A NONCONFORMIST
DOCTRINE IN A STREET IN LONDON, WAS THAT HE CAUSED "A GREAT CONCOURSE
AND TUMULT OF PEOPLE" IN CONTEMPT OF THE KING AND "TO THE GREAT
DISTURBANCE OF HIS PEACE."  6 HOW.  ST. TR. 951, 955.  THAT WAS IN
1670.  IN MODERN TIMES, ALSO, SUCH ARRESTS ARE USUALLY SOUGHT TO BE
JUSTIFIED BY SOME LEGITIMATE FUNCTION OF GOVERNMENT.  (FN4)  YET BY
ALLOWING THESE ORDERLY AND CIVILIZED PROTESTS AGAINST INJUSTICE TO BE
SUPPRESSED, WE ONLY INCREASE THE FORCES OF FRUSTRATION WHICH THE
CONDITIONS OF SECOND-CLASS CITIZENSHIP ARE GENERATING AMONGST US. 

FN1  "WHERE WOULD WE REALLY FIND THE PRINCIPAL DANGER TO CIVIL
LIBERTY IN A REPUBLIC?  NOT IN THE GOVERNORS AS GOVERNORS, NOT IN THE
GOVERNED AS GOVERNED, BUT IN THE GOVERNED UNEQUIPPED TO FUNCTION AS
GOVERNORS.  THE CHIEF ENEMIES OF REPUBLICAN FREEDOM ARE MENTAL SLOTH,
CONFORMITY, BIGOTRY, SUPERSTITION, CREDULITY, MONOPOLY IN THE MARKET OF
IDEAS, AND UTTER, BENIGHTED IGNORANCE.  RELYING AS IT DOES ON THE
CONSENT OF THE GOVERNED, REPRESENTATIVE GOVERNMENT CANNOT SUCCEED
UNLESS THE COMMUNITY RECEIVES ENOUGH INFORMATION TO GRASP PUBLIC ISSUES
AND MAKE SENSIBLE DECISIONS.  AS LIGHTS WHICH MAY HAVE BEEN ENOUGH FOR
THE PAST DO NOT MEET THE NEEDS OF THE PRESENT, SO PRESENT LIGHTS WILL
NOT SUFFICE FOR THE MORE EXTENSIVE AND COMPLEX PROBLEMS OF THE FUTURE. 
HERETOFORE PUBLIC ENLIGHTENMENT MAY HAVE BEEN ONLY A MANIFEST
DESIDERATUM; TODAY IT CONSTITUTES AN IMPERATIVE NECESSITY.  THE FIRST
AMENDMENT, SAYS JUSTICE BLACK, 'REFLECTS THE FAITH THAT A GOOD SOCIETY
IS NOT STATIC BUT ADVANCING, AND THAT THE FULLEST POSSIBLE INTERCHANGE
OF IDEAS AND BELIEFS IS ESSENTIAL TO ATTAINMENT OF THIS GOAL.'  (FROM
FELDMAN V. UNITED STATES, 322 U.S. 487, 501 (DISSENTING OPINION).)"
CAHN, SUPRA, AT 102. 

FN2  THE HISTORICAL ANTECEDENTS OF THE RIGHT TO PETITION FOR THE
REDRESS OF GRIEVANCES RUN DEEP, AND STRIKE TO THE HEART OF THE
DEMOCRATIC PHILOSOPHY.  C. 61 OF THE MAGNA CARTA PROVIDED: 

"THAT IF WE OR OUR JUSTICIAR, OR OUR BAILIFFS, OR ANY OF OUR SERVANTS
SHALL HAVE DONE WRONG IN ANY WAY TOWARD ANY ONE, OR SHALL HAVE
TRANSGRESSED ANY OF THE ARTICLES OF PEACE OR SECURITY; AND THE WRONG
SHALL HAVE BEEN SHOWN TO FOUR BARONS OF THE AFORESAID TWENTY-FIVE
BARONS, LET THOSE FOUR BARONS COME TO US OR TO OUR JUSTICIAR, IF WE ARE
OUT OF THE KINGDOM, LAYING BEFORE US THE TRANSGRESSION, AND LET THEM
ASK THAT WE CAUSE THAT TRANSGRESSION TO BE CORRECTED WITHOUT DELAY." 
SOURCES OF OUR LIBERTIES 21 (PERRY ED. 1959). 

THE REPRESENTATIVES OF THE PEOPLE VIGOROUSLY EXERCISED THE RIGHT IN
ORDER TO GAIN THE INITIATIVE IN LEGISLATION AND A VOICE IN THEIR
GOVERNMENT.  SEE POLLARD, THE EVOLUTION OF PARLIAMENT 329-331 (1964). 
BY 1669 THE HOUSE OF COMMONS HAD RESOLVED THAT "IT IS AN INHERENT RIGHT
OF EVERY COMMONER OF ENGLAND TO PREPARE AND PRESENT PETITIONS TO THE
HOUSE OF COMMONS IN CASE OF GRIEVANCE," AND "THAT NO COURT WHATSOEVER
HATH POWER TO JUDGE OR CENSURE ANY PETITION PRESENTED  ...  ."  4
PARL.  HIST.  ENG. 432-433 (1669).  THE BILL OF RIGHTS OF 1689 PROVIDED
"THAT IT IS THE RIGHT OF THE SUBJECTS TO PETITION THE KING AND ALL
COMMITMENTS AND PROSECUTIONS FOR SUCH PETITIONING ARE ILLEGAL."  ADAMS
& STEPHENS, SELECT DOCUMENTS OF ENGLISH CONSTITUTIONAL HISTORY 464. 
THE RIGHT TO PETITION FOR A REDRESS OF GRIEVANCES WAS EARLY ASSERTED IN
THE COLONIES.  THE STAMP ACT CONGRESS OF 1765 DECLARED "THAT IT IS THE
RIGHT OF THE BRITISH SUBJECTS IN THESE COLONIES, TO PETITION THE KING
OR EITHER HOUSE OF PARLIAMENT."  SOURCES OF OUR LIBERTIES 271 (PERRY
ED. 1959).  THE DECLARATION AND RESOLVES OF THE FIRST CONTINENTAL
CONGRESS, ADOPTED OCTOBER 14, 1774, DECLARED THAT AMERICANS "HAVE A
RIGHT PEACEABLY TO ASSEMBLE, CONSIDER THEIR GRIEVANCES, AND PETITION
THE KING; AND THAT ALL PROSECUTIONS, PROHIBITORY PROCLAMATIONS, AND
COMMITMENTS FOR THE SAME, ARE ILLEGAL."  ID., AT 288.  THE DECLARATION
OF INDEPENDENCE ASSIGNED AS ONE OF THE REASONS FOR THE BREAK FROM
ENGLAND THE FACT THAT "OUR REPEATED PETITIONS HAVE BEEN ANSWERED ONLY
BY REPEATED INJURY."  THE CONSTITUTIONS OF FOUR OF THE ORIGINAL STATES
SPECIFICALLY GUARANTEED THE RIGHT.  MASS. CONST., ART. 19 (1780); PA.
CONST., ART. IX, SEC 20 (1790); N.H. CONST., ART. 32 (1784); N.C.
CONST., ART. 18 (1776). 

FN3  IN 1932 OVER 28,000 VETERANS DEMANDING A BONUS MARCHED ON
WASHINGTON, D.C., PARADED THE STREETS, AND CAMPED MOSTLY IN PARKS AND
OTHER PUBLIC LANDS IN THE DISTRICT, VIRGINIA, AND MARYLAND ONLY TO BE
ROUTED BY THE ARMY.  SEE WATERS, B.E.F. (1933). 

FN4  SEE, E.G., DE JONGE V. OREGON, 299 U.S. 353; FEINER V. NEW YORK,
340 U.S. 315; NIEMOTKO V. MARYLAND, 340 U.S. 268; EDWARDS V. SOUTH
CAROLINA, 372 U.S. 229; COX V. LOUISIANA, 379 U.S. 536; SHUTTLESWORTH
V. CITY OF BIRMINGHAM, 382 U.S. 87.  THE SAME IS TRUE OF OTHER MEASURES
WHICH INHIBIT FIRST AMENDMENT RIGHTS.  SEE, E.G., N.A.A.C.P. V.
ALABAMA, 357 U.S. 449; BATES V. CITY OF LITTLE ROCK, 361 U.S. 516;
SHELTON V. TUCKER, 364 U.S. 479; N.A.A.C.P. V. BUTTON, 371 U.S. 415. 
IF THE INVALIDITY OF REGULATIONS AND OFFICIAL CONDUCT CURTAILING FIRST
AMENDMENT RIGHTS TURNED ON AN UNEQUIVOCAL SHOWING THAT THE MEASURE WAS
INTENDED TO INHIBIT THE RIGHTS, PROTECTION WOULD BE SORELY LACKING.  IT
IS NOT THE INTENT OR PURPOSE OF THE MEASURE BUT ITS EFFECT ON FIRST
AMENDMENT RIGHTS WHICH IS CRUCIAL. 
..END :















ILLINOIS C.R. CO. V. NORFOLK & W.R. CO. 385 U.S. 57 


NO. 15.  ARGUED OCTOBER 11, 1966 - DECIDED NOVEMBER 14, 1966.* - 241 F.
SUPP. 974, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 17, CALUMET HARBOR TERMINALS, INC., ET AL. V.
NORFOLK & WESTERN RAILWAY CO. ET AL. AND NO. 20, UNITED STATES ET AL.
V. NORFOLK & WESTERN RAILWAY CO. ET AL., ALSO ON APPEAL FROM THE SAME
COURT. 


APPELLANTS, SEVEN RAILROADS, APPLIED TO THE INTERSTATE COMMERCE
COMMISSION (ICC) FOR AUTHORITY TO PROVIDE DIRECT SERVICE TO THE LAKE
CALUMET HARBOR PORT, WHICH IS BEING DEVELOPED BY THE CHICAGO REGIONAL
PORT DISTRICT AS A MAJOR DEEP WATER PORT FACILITY FOR TRAFFIC VIA THE
ST. LAWRENCE SEAWAY.  THE PORT AREA IS NOW SERVED DIRECTLY BY ONLY ROCK
ISLAND, WHICH ALONG WITH THE NEAREST RAIL FACILITY, NICKEL PLATE (LATER
MERGED INTO THE NORFOLK & WESTERN), INTERVENED IN OPPOSITION TO THE
PROPOSED EXPANSION OF RAIL SERVICE.  THE APPLICATIONS SOUGHT APPROVAL
OF TRACKAGE EXTENSION AS WELL AS AN UNEXECUTED AGREEMENT BETWEEN
APPELLANTS AND THE PORT DISTRICT FOR OPERATIONS WITHIN THE PORT AREA. 
AFTER A FULL HEARING, THE HEARING EXAMINER RECOMMENDED APPROVAL OF
APPELLANTS' ENTIRE PROJECT.  THE ICC ADOPTED THE RECOMMENDATIONS BUT
RULED THAT THE APPLICANTS SHOULD FILE SUPPLEMENTAL APPLICATIONS
COVERING PORT AREA OPERATIONS AS PROVIDED IN THE PROPOSED LEASE WITH
THE PORT DISTRICT.   THE SUPPLEMENTAL APPLICATIONS COVERING THE LEASE
WERE FILED, AN EXCLUSIVE OPERATING CLAUSE TO WHICH THE ICC HAD OBJECTED
HAVING BEEN ELIMINATED.  THE ICC, FINDING THAT THE PUBLIC CONVENIENCE
AND NECESSITY REQUIRED THE ADDITIONAL SERVICES APPLIED FOR BY
APPELLANTS, APPROVED THE APPLICATIONS, AS SUPPLEMENTED, WITHOUT A
FURTHER HEARING WHICH THE ROCK ISLAND AND NICKEL PLATE HAD REQUESTED,
THE ICC HAVING CONCLUDED THAT THE PREVIOUS HEARING RECORD WAS ADEQUATE
TO SUPPORT THE ENTIRE PROJECT.  A SECOND SUPPLEMENTAL APPLICATION WAS
LATER FILED CLARIFYING THE RENTAL PROVISION WHICH IN THE ICC'S VIEW
REQUIRED NO FURTHER HEARING AS REQUESTED BY THOSE RAILROADS.  THE ROCK
ISLAND AND NICKEL PLATE SUED TO ENJOIN THE ICC'S ORDERS, WHICH A THREE
JUDGE DISTRICT COURT SET ASIDE AS NOT SUPPORTED BY SUFFICIENT
EVIDENCE.  THE DISTRICT COURT ALSO FOUND THAT DUE PROCESS REQUIRED THAT
ROCK ISLAND AND NICKEL PLATE BE GRANTED A HEARING ON THE RENTAL
PROVISIONS.  THE COURT ORDERED A HEARING ON ALL THE ISSUES.  HELD: 

1.  THE ICC'S ACTION GRANTING APPELLANT RAILROADS' APPLICATIONS TO
PROVIDE ADDITIONAL SERVICE WAS SUPPORTED BY "SUBSTANTIAL EVIDENCE" ON
THE RECORD VIEWED AS A WHOLE AS TO THE PORT'S FUTURE POTENTIAL AND THE
NEED FOR PROVIDING COMPETITIVE RAIL SERVICE AT THE OUTSET OF THE PORT'S
DEVELOPMENT.  IT WAS NOT THE DISTRICT COURT'S FUNCTION TO SUBSTITUTE
ITS OWN CONCLUSIONS FOR THOSE WHICH THE ICC HAD FAIRLY DRAWN FROM ITS
FINDINGS.  PP. 65-69. 

2.  DURING THE PROCEEDINGS BEFORE THE HEARING EXAMINER AND THE ICC,
THE OPERATIONS OF THE APPELLANTS WITHIN THE PORT AREA WERE FULLY
CONSIDERED AS AN INTEGRAL PART OF THEIR OVERALL PLAN, AND THE DISTRICT
COURT HAD NO BASIS FOR CONCLUDING THAT DUE PROCESS REQUIRED A NEW
HEARING ON THE ISSUES.  PP. 70-75. 

ILLINOIS CENTRAL RAILROAD CO. ET AL. V. NORFOLK & WESTERN RAILWAY CO. ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT,
241 F. SUPP. 974, SETTING ASIDE ORDERS OF THE INTERSTATE COMMERCE
COMMISSION, 307 I.C.C. 493, 312 I.C.C. 277, 317 I.C.C. 502, WHICH
GRANTED THE APPLICATIONS OF SEVEN RAILROADS  (FN1)  TO PROVIDE
ADDITIONAL RAIL SERVICE TO THE LAKE CALUMET HARBOR PORT NEAR THE
SOUTHERN LIMITS OF CHICAGO, ILLINOIS.  THE SERVICE WAS TO BE PROVIDED
THROUGH THE CONSTRUCTION OF A SINGLE LINE OF TRACK INTO THE CHICAGO
REGIONAL PORT DISTRICT FOR THE JOINT USE OF THE SEVEN RAILROADS.  AT
PRESENT THE PORT IS SERVED DIRECTLY BY ONLY ONE RAILROAD, APPELLEE
CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY (ROCK ISLAND). 
APPELLEE NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY (NICKEL
PLATE),  (FN2)  HAS FACILITIES ON THE EAST SIDE OF LAKE CALUMET WHICH
HAS BEEN RESERVED FOR FUTURE COMMERCIAL DEVELOPMENT, BUT AT PRESENT ITS
FACILITIES DO NOT REACH THE PORT.  THE COURT, WITH ONE JUDGE
DISSENTING, REJECTED AS NOT HAVING "AMPLE SUPPORT" IN THE RECORD, THE
FINDINGS OF THE COMMISSION THAT THE PUBLIC CONVENIENCE AND NECESSITY
REQUIRED THE ADDITIONAL SERVICE APPLIED FOR BY THE SEVEN ROADS.  IT
FURTHER FOUND, UNANIMOUSLY, THAT THE REQUIREMENTS OF DUE PROCESS WERE
VIOLATED BY THE COMMISSION IN ITS REFUSAL TO GIVE ROCK ISLAND AND
NICKEL PLATE A HEARING BEFORE APPROVING A NONEXCLUSIVE AGREEMENT,
SUBSEQUENTLY EXECUTED BETWEEN THE APPLICANT ROADS AND THE PORT
DISTRICT, COVERING THE USE OF THE LATTER'S FACILITIES.  THE COURT
ORDERED A NEW HEARING ON ALL THE ISSUES, ONE JUDGE CONCLUDING THAT SUCH
HEARING SHOULD BE LIMITED TO THE SUBSEQUENTLY EXECUTED NONEXCLUSIVE USE
AGREEMENT.  WE NOTED PROBABLE JURISDICTION, 382 U.S. 913, AND REVERSE
THE JUDGMENT. 

                       I. 

BACKGROUND OF LAKE CALUMET HARBOR PORT. 

LAKE CALUMET HARBOR PORT IS ONE OF SEVEN FACILITIES WITHIN THE PORT
OF CHICAGO AVAILABLE FOR THE HANDLING OF WATER-BORNE FREIGHT.  IT IS A
SHALLOW LAKE APPROXIMATELY TWO MILES IN LENGTH AND COVERS APPROXIMATELY
1,250 ACRES.  IT IS ACCESSIBLE BY WATER FROM LAKE MICHIGAN VIA THE
CALUMET RIVER INTO THE HEART OF THE CHICAGO SWITCHING DISTRICT, A
DISTANCE OF SOME SIX MILES. 

AS EARLY AS 1880 ONE OF THE PULLMAN COMPANIES CONSTRUCTED TRACKAGE
THAT FIRST BROUGHT RAIL SERVICE TO LAKE CALUMET.  PULLMAN RESERVED SOME
300 TO 500 ACRES FOR THE DEVELOPMENT OF A HARBOR AND LATER DONATED SOME
ACREAGE TO THE UNITED STATES FOR THE DEVELOPMENT OF A TURNING BASIN. 
COMPREHENSIVE PLANS FOR DREDGING LAKE CALUMET HARBOR AND THE FILLING OF
SUBMERGED LANDS WERE PREPARED IN 1916 BY AN ENGINEER FOR THE CITY OF
CHICAGO.  IN 1917 PULLMAN WAIVED RIPARIAN RIGHTS TO SOME FOUR MILES OF
LAKE CALUMET SHORELINE TO THE CITY OF CHICAGO AND IN 1935 GAVE
ADDITIONAL LAND TO THE UNITED STATES FOR THE PURPOSE OF WIDENING THE
CALUMET RIVER. 

IN 1947 THE ILLINOIS CENTRAL, AN APPELLANT HERE, ATTEMPTED TO ENTER
THE PORT AREA.  PULLMAN AND TWO OF THE SEVEN APPELLANTS HERE, NEW YORK
CENTRAL AND THE BELT RAILWAY COMPANY OF CHICAGO, OPPOSED THE
APPLICATION WHICH WAS ADDRESSED TO THE ILLINOIS COMMERCE COMMISSION. 
IN 1949, DURING THE PENDENCY OF THE PROCEEDING, ROCK ISLAND ACQUIRED
THE COMMON STOCK AND CERTAIN INDUSTRIAL PROPERTY OF PULLMAN FOR
$2,200,000.  ROCK ISLAND THEN ENTERED THE PROCEEDINGS IN OPPOSITION TO
ILLINOIS CENTRAL.   THE APPLICATION OF THE LATTER WAS APPROVED BY THE
ILLINOIS COMMERCE COMMISSION BUT THE CIRCUIT COURT OF COOK COUNTY
REJECTED IT AND THE SUPREME COURT OF ILLINOIS AFFIRMED IN 1953. 
CHICAGO, R.I.&P.R. CO. V. ILLINOIS COMMERCE COMMISSION EX REL.
ILLINOIS CENTRAL R. CO., 414 ILL. 134, 111 N.E.2D 136. 

THE INTERSTATE COMMERCE COMMISSION IN APPROVING THE ACQUISITION OF
PULLMAN BY ROCK ISLAND - OVER THE OBJECTIONS OF ILLINOIS CENTRAL AND
THE BELT RAILWAY COMPANY, EACH OF WHICH ALSO SOUGHT TO ACQUIRE PULLMAN
OR A PORTION OF ITS TRACKAGE ON THE LAKE - IMPOSED CERTAIN CONDITIONS
ON ROCK ISLAND DESIGNED TO GUARANTEE FAIR PRACTICES, ASSURE
NONDISCRIMINATORY HANDLING OF THE TRAFFIC OF OTHER RAILROADS TO AND
FROM THE LAKE AND GUARANTEE THE MUTUALITY OF TRAFFIC AND OPERATING
RELATIONSHIPS THERETOFORE EXISTING BETWEEN PULLMAN AND THE OTHER
ROADS.  ROCK ISLAND, HOWEVER, CONTINUED TO BE THE ONLY LINE PROVIDING
DIRECT SERVICE TO THE PORT. 

THE CHICAGO REGIONAL PORT DISTRICT WAS CREATED AS A MUNICIPAL
CORPORATION BY THE STATE OF ILLINOIS IN 1951.  ITS PURPOSE WAS THE
DEVELOPMENT OF LAKE CALUMET INTO A MAJOR DEEP WATER PORT FACILITY FOR
BOTH DOMESTIC AND IMPORT-EXPORT TRAFFIC VIA THE ST. LAWRENCE SEAWAY. 
IN 1954 THE PORT DISTRICT DECLARED BY RESOLUTION THAT THE PUBLIC'S, AS
WELL AS THE PORT'S, INTEREST REQUIRED THAT ITS TRACKAGE BE ACCESSIBLE
TO AS MANY RAILROADS AS POSSIBLE.  IN 1955 THE PORT DISTRICT ACQUIRED
THE LAKE AND SOME ADJOINING PROPERTY FROM THE CITY OF CHICAGO AND BEGAN
DREDGING THE LAKE AND CONSTRUCTING PORT FACILITIES AT ITS SOUTHERN END;
IT ALSO BUILT 14 MILES OF RAILROAD YARD "HOLD" TRACKS IN THE PORT,
DOCKS, TWO 6,500,000-BUSHEL GRAIN ELEVATORS, THREE TRANSIT SHEDS
OCCUPYING 300,000 SQUARE FEET OF SPACE, A BACK-UP WAREHOUSE WITH
200,000 SQUARE FEET OF SPACE, AND STREETS.  THESE FACILITIES COST
$24,000,000 AND WERE PAID FOR BY THE SALE OF PORT DISTRICT REVENUE
BONDS.  BY CONTRACT WITH THE PORT DISTRICT THE ROCK ISLAND OPERATES
OVER THE TRACKAGE OF THE PORT DISTRICT AND ALSO SERVES THE CALUMET
HARBOR TERMINALS, INC., A PRIVATE HARBOR FACILITY.  NO OTHER RAILROADS
REACH THE PORT ON THEIR OWN TRACKS.  THE NICKEL PLATE IS THE NEAREST
RAIL FACILITY.  AS PREVIOUSLY NOTED, IT HAS TRACKAGE ON THE EAST SIDE
OF THE LAKE WHICH HAS BEEN RESERVED FOR FUTURE DEVELOPMENT BY THE PORT
DISTRICT.  ANY RAILROAD WISHING TO SERVICE THE PORT MUST USE THE
FACILITIES OF ROCK ISLAND. 

            II. 

THE APPLICATIONS BEFORE THE COMMISSION. 

ON OCTOBER 22, 1956, THE APPELLANTS ILLINOIS CENTRAL RAILROAD COMPANY
AND THE PENNSYLVANIA RAILROAD COMPANY, REQUESTED AUTHORITY FROM THE
COMMISSION UNDER THE PROVISIONS OF 49 U.S.C.  SEC 1(18) TO CONSTRUCT
1.431 MILES OF NEW TRACK THAT WOULD CONNECT THEIR LINES TO THE PRESENT
TRACKAGE OF AN AFFILIATE OF ILLINOIS CENTRAL THAT PASSES NEAR LAKE
CALUMET'S SOUTHWESTERN SHORE.  SIMILAR APPLICATIONS WERE SUBSEQUENTLY
FILED ON THE CHICAGO SOUTH SHORE AND SOUTH BEND RAILROAD, THE BELT
RAILWAY COMPANY OF CHICAGO, THE MICHIGAN CENTRAL RAILROAD COMPANY, THE
NEW YORK CENTRAL RAILROAD COMPANY AND THE INDIANA HARBOR BELT RAILROAD
COMPANY.  ALL OF THE APPLICANTS SOUGHT TO OPERATE DIRECTLY TO AND FROM
THE LAKE CALUMET PORT, RATHER THAN USE THE FACILITIES OF THE ROCK
ISLAND.  THE LATTER, AS WELL AS THE NICKEL PLATE, REQUESTED AND WAS
GIVEN LEAVE TO INTERVENE AS WERE OTHER PARTIES.  (FN3)  THE ROCK ISLAND
AND NICKEL PLATE WERE THE ONLY OBJECTORS, THE REMAINING INTERVENORS ALL
SUPPORTING THE APPLICATIONS. 

THE ORIGINAL APPLICATIONS OF THE SEVEN RAILROADS DID NOT SPECIFICALLY
REQUEST AUTHORITY FROM THE COMMISSION TO OPERATE OVER THE PORT
DISTRICT'S TRACKS.  IT APPEARS THAT APPELLANTS WERE UNDER THE
IMPRESSION THAT FORMAL COMMISSION AUTHORITY WAS NOT NECESSARY BECAUSE
OF THE FACT THAT ROCK ISLAND WAS CURRENTLY OPERATING WITHOUT IT.
NEVERTHELESS, THE APPLICATIONS COVERED THE ENTIRE PLAN OF OPERATIONS
PROPOSED BY APPELLANTS, INCLUDING ACTIVITY WITHIN THE PORT DISTRICT AS
WELL AS AN UNEXECUTED AGREEMENT COVERING THE LEASING OF THE PORT
DISTRICT FACILITIES WHICH WAS ATTACHED TO THE APPLICATION AS AN
EXHIBIT.  THIS LEASE WAS BEFORE THE HEARING EXAMINER DURING THE 12-DAY
JOINT HEARING HE CONDUCTED AND WAS THE SUBJECT OF TESTIMONY AND
CONSIDERATION.  THE APPELLANTS ADVISED, AND THE HEARING EXAMINER
CONCLUDED, THAT THE APPELLANTS SOUGHT APPROVAL TO OPERATE WITHIN THE
PORT DISTRICT, AS WELL AS AUTHORITY FOR THE TRACK EXTENSION. 
ACCORDINGLY, THE HEARING EXAMINER RECOMMENDED TO THE COMMISSION THAT
THE ENTIRE PROJECT OF THE APPELLANTS BE APPROVED. 

ON OCTOBER 5, 1959, THE COMMISSION ADOPTED THE HEARING EXAMINER'S
RECOMMENDATIONS BUT RULED THAT THE APPLICANTS SHOULD FILE SUPPLEMENTAL
APPLICATIONS COVERING THEIR PROPOSED OPERATIONS WITHIN THE PORT
DISTRICT, AS PROVIDED IN THE PROPOSED LEASE WITH THE DISTRICT.  THE
COMMISSION DISCUSSED THE LEASE AND INDICATED THAT IT WAS SATISFACTORY. 
IT DID, HOWEVER, FEEL THAT THE EXCLUSIVE RIGHT OF OPERATION CLAUSE
SHOULD BE ELIMINATED.  THE COMMISSION ALSO RULED THAT ROCK ISLAND'S
SERVICE TO CALUMET HARBOR TERMINALS, INC., WAS NOT TO BE DISRUPTED AND
THAT EVERY INDUSTRY LOCATED AT LAKE CALUMET HARBOR WAS TO HAVE DIRECT
RAIL SERVICE, NOT ONLY FROM THE APPLICANTS BUT THE ROCK ISLAND AND
NICKEL PLATE, IF THEY SO ELECTED. 

IN APRIL 1960, THE APPELLANTS, PURSUANT TO THE COMMISSION'S
REQUIREMENT, FILED SUPPLEMENTAL APPLICATIONS FOR SPECIFIC AUTHORITY TO
OPERATE WITHIN THE PORT DISTRICT.  THE PROPOSED LEASE COVERED BY THESE
APPLICATIONS ELIMINATED THE EXCLUSIONARY PROVISIONS TO WHICH THE
COMMISSION HAD OBJECTED.  DESPITE THE REQUEST OF ROCK ISLAND AND NICKEL
PLATE FOR A HEARING ON THE NEW LEASE THE COMMISSION FOUND THAT THE
"TECHNICAL DEFICIENCY" EXISTING IN APPELLANTS' ORIGINAL APPLICATIONS
HAD BEEN CORRECTED BY THE FILING OF THEIR SUPPLEMENTAL APPLICATIONS;
THAT THE RECORD OF THE PREVIOUS HEARING WAS ADEQUATE TO SUPPORT
APPROVAL OF THE ENTIRE PROPOSAL OF THE APPELLANTS; AND THE
APPLICATIONS, AS SUPPLEMENTED, WERE APPROVED. 

IN JUNE 1961, HOWEVER, THE APPELLANTS AND THE PORT DISTRICT FOUND IT
NECESSARY TO AMEND THEIR OPERATING AGREEMENT AND APPELLANTS FILED A
SECOND SUPPLEMENTAL APPLICATION ASKING FOR APPROVAL OF THE SAME.  THIS
AGREEMENT MODIFIED THE ONE PREVIOUSLY APPROVED BY THE COMMISSION.  THE
OLD AGREEMENT HAD PROVIDED FOR A 5% ANNUAL RENTAL FOR THE USE OF THE
PORT DISTRICT'S RAIL FACILITIES BASED UPON THE VALUATION OF THE LATTER,
BUT NOT TO EXCEED $2 PER CAR, LOADED OR EMPTY, INCLUDING LOCOMOTIVES. 
THE NEW AGREEMENT PROVIDED FOR A FLAT CHARGE OF $2 FOR EACH LOADED
FREIGHT CAR; IT ALSO SPECIFICALLY ELIMINATED INDUSTRY-OWNED TRACKS
WITHIN THE PORT DISTRICT FROM THE AGREEMENT; AND PROVIDED THAT IT DID
NOT AFFECT THE RIGHT OF ROCK ISLAND TO OPERATE IN THE PORT DISTRICT NOR
GRANT ANY EXCLUSIVE PRIVILEGE TO THE APPELLANTS.  THE COMMISSION, AFTER
ONCE AGAIN DENYING APPELLEES' REQUEST FOR A HEARING, APPROVED THIS
FINAL AGREEMENT ON NOVEMBER 26, 1962.  THE COMMISSION FOUND THAT THE
CHANGES MERELY CLARIFIED THE RIGHTS AND RESPONSIBILITIES OF THE
PARTIES.  AS TO THE RENTALS IT FOUND THAT "RENTALS GENERALLY MAY BE
CONSIDERED REASONABLE WHERE, AS HERE, THE FACTS OF RECORD DISCLOSE THAT
NONAFFILIATED PARTIES, AFTER BARGAINING AT ARM'S LENGTH, HAVE ENTERED
INTO AN AGREEMENT UNDER WHICH INCREASED SERVICE WILL BE OFFERED TO THE
PUBLIC, ALL PARTIES TO THE AGREEMENT WILL BENEFIT FINANCIALLY, AND THE
INTERVENERS' ABILITY TO CONTINUE TO SERVE THE PUBLIC WILL NOT BE
IMPAIRED."  (FN4)

                                            III. 

PROCEEDINGS IN THE DISTRICT COURT. 

THE ROCK ISLAND AND NICKEL PLATE THEN FILED THIS SUIT SEEKING TO
ENJOIN THE COMMISSION'S ORDERS AND THE THREE-JUDGE DISTRICT COURT
VACATED THE ORDERS ON THE GROUNDS WE HAVE STATED. 

THE COURT FOUND THAT IT WAS FACED WITH TWO BASIC PROBLEMS:  (1)
WHETHER THERE WAS "SUBSTANTIAL EVIDENCE" TO SUPPORT THE ORDER OF THE
COMMISSION AND (2) WHETHER THE REFUSAL OF THE COMMISSION TO HAVE A
HEARING ON THE LEASE AGREEMENT BETWEEN THE APPLICANTS AND THE PORT
DISTRICT DENIED ROCK ISLAND AND NICKEL PLATE DUE PROCESS OF LAW. 

WITH RESPECT TO THE FIRST PROBLEM THE COURT FOUND "SUBSTANTIAL
SUPPORT" FOR SOME OF THE "IMPORTANT FINDINGS" OF THE COMMISSION. 
HOWEVER, IT FOUND THAT THE RECORD DID NOT "OFFER AMPLE SUPPORT" FOR
CERTAIN OF ITS CONCLUSIONS.  THESE CONCLUSIONS APPEARED TO HAVE BEEN
DRAWN BY THE COMMISSION FROM THE PRIOR FINDINGS WHICH THE COURT HAD
FOUND TO HAVE "SUBSTANTIAL SUPPORT" IN THE RECORD. 

ON THE SUPPLEMENTAL APPLICATION FOR AUTHORITY TO OPERATE WITHIN THE
PORT DISTRICT THE COURT HELD THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT
THE ORDER OF APPROVAL; THAT THE RENTAL UNDER THE FINAL CONTRACT WAS
MATERIALLY DIFFERENT FROM THE PROVISIONS OF THE ORIGINAL PLAN AND BOUND
THE ROCK ISLAND AND NICKEL PLATE TO OPERATE UNDER THE SAME CONDITION
WITHOUT AFFORDING THEM THE RIGHT OF A HEARING.  BY A DIVIDED COURT IT
ORDERED A COMPLETE REHEARING ON ALL ISSUES.  WE CANNOT AGREE WITH
EITHER THE FINDINGS OF THE DISTRICT COURT OR WITH ITS DISPOSITION OF
THE CASE. 

                                            IV. 

APPLICABLE STANDARD ON REVIEW. 

AT THE OUTSET THE COMMISSION AND THE APPELLANT RAILROADS CONTEND THAT
THE COURT DID NOT APPLY THE CORRECT STANDARDS IN REVIEWING THE
COMMISSION'S ACTION.  AS WE HAVE NOTED, THE COURT DID REJECT CERTAIN
"CONCLUSIONS" OF THE COMMISSION, AS ABOVE INDICATED, WITH RESPECT TO
THE PUBLIC CONVENIENCE AND NECESSITY FOR ADDITIONAL RAIL SERVICE TO
LAKE CALUMET PORT ON THE GROUND THAT THEY DID NOT HAVE "AMPLE SUPPORT"
IN THE RECORD.  THE TEST ON JUDICIAL REVIEW IS, OF COURSE, WHETHER THE
ACTION OF THE COMMISSION IS SUPPORTED BY "SUBSTANTIAL EVIDENCE" ON THE
RECORD VIEWED AS A WHOLE, 5 U.S.C. SEC 1009(E)(5).  SUBSTANTIAL
EVIDENCE IS "ENOUGH TO JUSTIFY, IF THE TRIAL WERE TO A JURY, A REFUSAL
TO DIRECT A VERDICT WHEN THE CONCLUSION SOUGHT TO BE DRAWN FROM IT IS
ONE OF FACT FOR THE JURY."  LABOR BOARD V. COLUMBIAN ENAMELING &
STAMPING CO., 306 U.S. 292, 300 (1939).  A CAREFUL READING OF THE
OPINION LEADS US TO CONCLUDE THAT THE COURT WAS APPLYING THE TEST OF
SUBSTANTIALITY.  INDEED, AT FOUR SEPARATE PLACES IN THE OPINION IT USES
THE TERM "SUBSTANTIAL EVIDENCE" AS BEING THE NECESSARY REQUIREMENT.  AS
UNFORTUNATE AS IT IS THAT THE "AMPLE SUPPORT" LANGUAGE CREPT INTO THE
DECISION, WE DO NOT BELIEVE THAT THE COURT WAS CREATING A "NOVEL
FORMULATION" BUT RATHER INADVERTENTLY USED THE "AMPLE SUPPORT"
TERMINOLOGY MERELY TO MEET THE SAME LANGUAGE IN THE DISSENT REFERRING
TO THE CONCLUSIONS OF THE COMMISSION. 

WE HAVE CONCLUDED THAT THE COURT ERRED IN SETTING ASIDE THE
CONCLUSIONS OF THE COMMISSION.  THE ACT AUTHORIZES THE ISSUANCE OF
CERTIFICATES SUCH AS THE ONES SOUGHT HERE WHEN THE COMMISSION FINDS
THAT THE FUTURE PUBLIC CONVENIENCE AND NECESSITY WILL REQUIRE
ADDITIONAL RAILROAD SERVICE.  49 U.S.C. SEC 1(18).  THIS COURT HAS
REPEATEDLY HELD THAT IF A RAILROAD, VOLUNTARILY PROPOSING THE EXTENSION
OF ITS LINES, CAN SHOW THAT ITS PROPOSAL "EITHER PRESENTLY OR IN THE
REASONABLY NEAR FUTURE WILL BE SELF-SUSTAINING, OR SO NEARLY SO AS NOT
UNDULY TO BURDEN INTERSTATE COMMERCE, THE COMMISSION MAY ISSUE A
CERTIFICATE AUTHORIZING THE PROPOSED LINE," INTERSTATE COMMERCE
COMMISSION V. OREGON-WASH.  R. & NAV. CO., 288 U.S. 14, 37 (1933).  THE
COMMISSION, HOWEVER, "MUST BE CONVINCED THAT THE PROPOSED VENTURE WILL
NOT DRAIN THE RAILROAD'S RESOURCES AND DISABLE IT FROM PERFORMING THOSE
DUTIES OF PUBLIC SERVICE UNDER WHICH IT THEN RESTED, WITH CONSEQUENT
DETRIMENT TO THE PUBLIC IN THE MATTER OF SERVICE AND RATES."  IBID.
ALSO SEE TEXAS & P.R. CO. V. GULF, C.&S.F.R. CO., 270 U.S. 266, 277
(1926); CHESAPEAKE & O.R. CO. V. UNITED STATES, 283 U.S. 35, 42
(1931).  ROCK ISLAND AND NICKEL PLATE CONTEND THAT THE "EVIDENCE OF
APPELLANTS ADDUCED BEFORE THE COMMISSION WAS SO TOTALLY DEVOID OF
FACTUAL POSSIBILITY AS TO BE NO EVIDENCE AT ALL."  AS WE READ IT, THE
EVIDENCE AS TO THE FUTURE POSSIBILITIES OF THE PORT WAS SOMEWHAT
CONFLICTING.  THE COMMISSION, IN KEEPING WITH ITS DUTY, RESOLVED THIS
CONFLICT.  INDEED, THE FINDINGS OF THE COMMISSION, WHICH WERE UPHELD BY
THE DISTRICT COURT, COMPLETELY REFUTE THE ROCK ISLAND AND NICKEL PLATE
CLAIMS.  AMONG THE FINDINGS APPROVED BY THE COURT  (FN5)  ARE THE
FOLLOWING:  THE PORT WAS "THE MAJOR DEEPWATER PORT FACILITY OF THE PORT
OF CHICAGO," WITH "UNPARALLELED ACCESS" TO BARGE, RAIL, LAKE STEAMER
AND MOTOR TRANSPORTATION AND "COMPLETE ACCESS TO OCEAN TRANSPORTATION"
IN THE IMMEDIATE FUTURE, WITH 71,490,510 TONS OF WATER-BORNE TRAFFIC IN
1955 AND WITH "MATERIAL INCREASES"  (FN6)  IN TONNAGES PREDICTED FOR
THE FUTURE FROM AMONG AN ESTIMATED 600 TO 900 VESSELS COMING TO THE
CHICAGO PORT EACH SEASON, THAT "WILL NECESSITATE A SUBSTANTIALLY
BROADENED RAILROAD SERVICE INTO AND OUT OF THE LAKE CALUMET PORT";
APPELLANTS' COMBINED YARD CAPACITY WAS 61,601 CARS, MORE THAN 12 TIMES
THAT PRESENTLY AVAILABLE AT THE PORT; APPELLANTS' ROUTING WOULD BE
"MORE DIRECT," ENTAIL LESS HANDLING, EXPEDITE SHIPMENTS AND BE LESS
EXPENSIVE THAN THE PRESENT OPERATION OF ROCK ISLAND; AND, FINALLY, IT
WAS IMPERATIVE ...  THAT AT THE VERY BEGINNING OF THIS NEW ERA OF
DEVELOPMENT A PLAN AND SYSTEM FOR HANDLING THE TRANSPORTATION NEEDS OF
THE PORT BE ESTABLISHED WHICH WILL ASSURE THE TYPE OF SERVICE THAT IS
EXPECTED AND WILL PROVIDE FOR STEADY PROGRESS AND EXPANSION."  WE
BELIEVE THAT THESE FINDINGS, IN THE LIGHT OF OTHERS NOT OVERTURNED BY
THE DISTRICT COURT, ARE SUFFICIENT TO SUSTAIN THE COMMISSION'S ACTION
IN ISSUING THE CERTIFICATES. 

MOREOVER, WE BELIEVE THAT THE DISTRICT COURT ERRED IN STRIKING DOWN
THE CONCLUSIONS OF THE COMMISSION.  THESE CONCLUSIONS (FN7) INCLUDED:
CONSIDERATION OF THE WHOLE RECORD WARRANTED THE FINDING THAT THE
APPLICATIONS SHOULD BE GRANTED; GRANTING THEM WOULD RESULT IN GREATER
RAIL COMPETITION, BETTER SERVICE, GREATER CAR SUPPLY AND LOWER RATES
FOR THE INDUSTRIES SERVED BY THE PORT; APPELLANTS WOULD BE "ON A PAR"
WITH THE ROCK ISLAND IN SOLICITATION OF GRAIN TRAFFIC, AND BY HAVING
CONTROL OF THEIR CARS THEY COULD RETURN EMPTIES IN A FAST SHUTTLE
SERVICE TO COUNTRY ELEVATORS WITHOUT INTERCHANGE WITH ROCK ISLAND; THE
TIME HAS COME WHEN ADDITIONAL FREIGHT SERVICE IS REQUIRED FOR THE
FUTURE DEVELOPMENT OF THE PORT DISTRICT; BETTER SERVICE CAN BE GIVEN
THROUGH ELIMINATION OF DELAYS, BY SINGLE-LINE HAULS OR MORE DIRECT
HAULS; A SINGLE TRUNKLINE RAILROAD SERVICE WOULD BE DETRIMENTAL AND A
HINDRANCE TO THE DEVELOPMENT OF THE HARBOR, AND, ALTHOUGH THE PORT IS
SERVED BY SOME 100 COMMON CARRIER TRUCKLINES, THE ROCK ISLAND IS THE
ONLY RAILROAD PRESENTLY SERVING THE PORT; THE FUTURE CONVENIENCE AND
NECESSITY MUST BE GIVEN "A HIGHER VALUE" THAN THE PRESENT CONVENIENCE
AND NECESSITY; THE PROPOSED CONSTRUCTION EITHER PRESENTLY OR IN THE
REASONABLY NEAR FUTURE IS NECESSARY TO MEET A PUBLIC NEED AND WILL BE
REASONABLY PROFITABLE; AND, FINALLY, CONSIDERING THE EXPANSION PROGRAM
AT THE PORT AND THE INCREASED RAIL TRAFFIC TO BE MADE AVAILABLE THE
COMMISSION IS "OF THE OPINION THAT THE ADDITIONAL SERVICE  ...  IS
WARRANTED."  AS WE HAVE SAID, THESE CONCLUSIONS WERE LARGELY BASED UPON
PREVIOUS COMMISSION FINDINGS WHICH THE DISTRICT COURT APPROVED.  THE
COMMISSION'S FUNCTION IS TO DRAW SUCH REASONABLE CONCLUSIONS FROM ITS
FINDINGS AS IN ITS DISCRETION ARE APPROPRIATE.  AS WE SAID IN CONSOLO
V. FEDERAL MARITIME COMM'N, 383 U.S. 607, 620 (1966), "THE POSSIBILITY
OF DRAWING TWO INCONSISTENT CONCLUSIONS FROM THE EVIDENCE DOES NOT
PREVENT AN ADMINISTRATIVE AGENCY'S FINDING FROM BEING SUPPORTED BY
SUBSTANTIAL EVIDENCE."  IT IS NOT FOR THE COURT TO STRIKE DOWN
CONCLUSIONS THAT ARE REASONABLY DRAWN FROM THE EVIDENCE AND FINDINGS IN
THE CASE.  ITS DUTY IS TO DETERMINE WHETHER THE EVIDENCE SUPPORTING THE
COMMISSION'S FINDINGS IS SUBSTANTIAL, UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474 (1951).  HAVING FOUND THAT THERE WAS SUBSTANTIAL
SUPPORT IN THE RECORD FOR THE COMMISSION'S FINDINGS AS TO THE PORT'S
FUTURE POTENTIAL AND THE NECESSITY OF PROVIDING COMPETITIVE RAIL
SERVICE AT THE OUTSET OF THE PORT'S DEVELOPMENT, IT WAS NOT THE
DISTRICT COURT'S FUNCTION TO SUBSTITUTE ITS OWN CONCLUSIONS FOR THOSE
WHICH THE COMMISSION HAD FAIRLY DRAWN FROM SUCH FINDINGS.  ITS
AGREEMENT WITH THE CONTROLLING SUBSIDIARY FINDINGS REQUIRED THE
DISTRICT COURT TO SUSTAIN THE COMMISSION'S CONCLUSIONS. 

THE COURT ALSO ERRED, WE BELIEVE, IN ORDERING A NEW HEARING ON THE
ISSUES.  IT FOUND THAT THE COMMISSION'S ORDER ISSUING A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY TO OPERATE WITHIN THE PORT DISTRICT
WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND VIOLATED DUE PROCESS IN
THAT A HEARING WAS NOT AFFORDED THE APPELLEES THEREON. 

AS WE VIEW THE ORIGINAL APPLICATIONS OF THE APPELLANTS THEY PROPOSED
"TO EXTEND THEIR OPERATIONS TO SERVE THE LAKE CALUMET HARBOR DISTRICT
NEAR CHICAGO, IN COOK COUNTY, ILLINOIS  ...  FUTURE INDUSTRIES,
ELEVATORS, WAREHOUSES, DOCKS AND PIERS IN THE CALUMET HARBOR PORT
AREA."  THE PRAYER WAS THAT "YOUR COMMISSION ISSUE A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY AUTHORIZING THE CONSTRUCTION AND
OPERATION FOR WHICH AUTHORITY IS HEREIN SOUGHT."  (FN8)  THE PROCEEDING
CAME ON FOR A HEARING BEFORE THE HEARING EXAMINER ON SEPTEMBER 30,
1957, AND COUNSEL FOR THE ROCK ISLAND STATED FOR THE RECORD THAT HIS
UNDERSTANDING WAS "THE ISSUE IN THIS CASE IS THAT ALL APPLICATIONS ARE
FOR THE PURPOSE OF HANDLING IMPORT AND EXPORT BUSINESS ONLY TO AND FROM
THE PORT DISTRICT HARBOR OF CHICAGO  ...  ."  AND COUNSEL FOR THE
APPELLANTS STATED THAT THE PLAN WAS "TO HANDLE INTERSTATE BUSINESS TO
AND FROM THE AREA OVER WHICH THE PORT HAS JURISDICTION.  WE HAVE NO
SUCH LIMITATION AT ALL AS TO IMPORT OR EXPORT TRADE."  LIKEWISE, THE
"RETURN TO QUESTIONNAIRE" EXECUTED BY APPELLANTS STATED:  "THE LINE
PROPOSED TO BE CONSTRUCTED AND OPERATED WILL RECEIVE MATERIAL REVENUE
FROM FREIGHT TRAFFIC TO BE HANDLED TO AND FROM INDUSTRIES, ELEVATORS,
WAREHOUSES, DOCKS, AND PIERS PRESENTLY OPERATING IN THE CALUMET HARBOR
PORT AREA, IN ADDITION TO THOSE FACILITIES TO BE CONSTRUCTED WITH THE
FURTHER DEVELOPMENT OF THE AREA."  (FN9)  TO MAKE IT CRYSTAL CLEAR
PARAGRAPH 10 OF THE SAME ANSWER TO THE QUESTIONNAIRE STATED: 

"THE LAKE CALUMET PORT DISTRICT, WHICH THE PROPOSED LINE WILL SERVE
IS CURRENTLY SERVED BY THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD
COMPANY BY VIRTUE OF ITS ACQUISITION OF THE PULLMAN RAILROAD COMPANY,
THROUGH PURCHASE OF CAPITAL STOCK, AND LEASE BY THE FORMER OF THE
RAILROAD PROPERTY OF THE LATTER APPROVED AND AUTHORIZED BY THE
COMMISSION IN FINANCE DOCKET NO. 16252, PULLMAN RAILROAD COMPANY
CONTROL, DECIDED NOVEMBER 17, 1949." 

THE OTHER APPLICATIONS HAD SIMILAR ALLEGATIONS AND THE OTHER
APPELLANTS' QUESTIONNAIRE RETURNS CONTAINED LIKE STATEMENTS.  MOREOVER,
THE ANSWERS FILED ON MAY 16, 1957, BY ROCK ISLAND AND PULLMAN TO THE
APPLICATIONS, ADDRESSED THEMSELVES SOLELY TO THE PROPOSITION THAT
"APPLICANT'S EXTENSION OF ITS LINE OF RAILROAD AND OPERATIONS THROUGH
TRACKAGE RIGHTS TO SERVE TERRITORY THE PORT DISTRICT HERETOFORE SERVED
EXCLUSIVELY AND ADEQUATELY BY PETITIONERS CANNOT BE SUPPORTED BY PUBLIC
CONVENIENCE AND NECESSITY, COULD MEAN ONLY A DUPLICATION OF RAIL
SERVICE, AND WOULD CREATE UNSOUND AND UNECONOMIC CONDITIONS IN
TRANSPORTATION." 

AS WE READ THE RECORD BEFORE THE HEARING EXAMINER THE CASE WAS TRIED
ON THE THEORY THAT THE APPLICATIONS INCLUDED THE PROPOSED OPERATIONS
WITHIN THE PORT DISTRICT.  DURING THE PRESENTATION OF APPELLANTS'
EVIDENCE OBJECTION WAS MADE TO THE INTRODUCTION OF THE PROPOSED LEASE
BETWEEN APPELLANTS AND THE PORT DISTRICT ON THE GROUND THAT IT WAS
BEYOND THE SCOPE OF THE APPLICATION.  THE HEARING EXAMINER OVERRULED
THE OBJECTION.  THE TESTIMONY OF VIRTUALLY ALL OF THE APPELLANTS'
WITNESSES WAS DIRECTED TO SOME PHASE OF THE OPERATIONS OF THE PORT
DISTRICT.  IT SHOULD ALSO BE NOTED THAT THE APPELLEES SOUGHT TO REBUT
THIS TESTIMONY IN VOLUMINOUS DETAIL.  FOR EXAMPLE, 40 PAGES OF THE
RECORD DETAIL THE TESTIMONY OF MR. R.C. DAVIDSON, A WITNESS FOR ROCK
ISLAND.  HIS TESTIMONY IS DEVOTED TO ROCK ISLAND'S OPERATION IN THE
UNITED STATES WITH SPECIFIC REFERENCE TO THE PORT DISTRICT.  IT
COMPARES ROCK ISLAND'S OPERATION IN THE PORT DISTRICT WITH THAT
PROPOSED BY THE APPELLANTS AND ANSWERS IN DETAIL THE STATISTICS OF THE
APPELLANTS AS TO CHARGES, RATES, SWITCHING PROBLEMS, ETC., INVOLVED IN
OPERATIONS WITHIN THE PORT DISTRICT.  PAGE AFTER PAGE OF PREPARED
STATISTICS ON THE COSTS, PROFITS, ETC., OF THE PROPOSED OPERATION WERE
INCLUDED IN THE TESTIMONY, TOGETHER WITH FORECASTS AS TO THE IMPACT OF
THE SAME, IF PERMITTED, ON ROCK ISLAND'S OPERATIONS.  ANOTHER WITNESS
FOR ROCK ISLAND, PROFESSOR MARVIN L. FAIR, TESTIFIED FOR SOME 15 PAGES
ON THE POTENTIAL OF THE PORT DISTRICT.  HIS RESEARCH WAS IN GREAT DEPTH
AND INCLUDED COMPARISONS WITH OTHER GREAT LAKES PORTS; ESTIMATED
TRAFFIC OF THE PORT DISTRICT, INCLUDING IRON ORE, GRAIN, AND GENERAL
CARGO; PHYSICAL CONDITIONS OF NAVIGATION AT THE PORT; THE EFFECT OF
TOLLS; THE CAPACITY OF THE WELLAND CANAL (IN THE ST. LAWRENCE SEAWAY)
AND ITS IMPACT ON THE PORT; THE EFFICIENCY OF THE PORT FACILITIES;
ESTABLISHED MOVEMENT OF EXPORTS AND IMPORTS; THE EFFECT OF POLITICAL,
MILITARY, AND ECONOMIC CONDITIONS AT HOME AND ABROAD AND THE ADEQUACY
OF ROCK ISLAND'S SERVICE. 

THE RECORD ESTABLISHES BEYOND A DOUBT THAT THE APPELLANTS WERE IN
FACT SEEKING COMMISSION APPROVAL OF THE ENTIRE PROJECT.  THEIR OFFERING
OF THE UNEXECUTED, PROPOSED CONTRACT INTO EVIDENCE IS ONE OF MANY
INDICATIONS OF THIS FACT.  THE HEARING EXAMINER SPECIFICALLY NOTED, AT
THE TIME THE CONTRACT WAS RECEIVED IN EVIDENCE, THAT ITS APPROVAL BY
THE COMMISSION WAS NECESSARY IN ORDER FOR THE APPELLANTS TO SERVE THE
PORT DISTRICT AS THEY PROPOSED.  IT WOULD, INDEED, HAVE BEEN A FUTILE
ACT FOR THE APPELLANTS TO SEEK AND ATTAIN APPROVAL TO EXTEND THEIR
LINES TO THE PORT DISTRICT BUT NOT BE ABLE TO ENTER IT] 

IT IS TRUE THAT APPELLEES OBJECTED TO THE INTRODUCTION OF THE
PROPOSED AGREEMENT BECAUSE THEY FELT, AND RIGHTLY SO, THAT THE
APPLICATION WHICH THE APPELLANTS HAD SUBMITTED WAS NOT TECHNICALLY
BROAD ENOUGH FOR THE AUTHORITY THEY SOUGHT.  THE HEARING EXAMINER
OVERRULED THEM AND THEY WERE OBLIGED TO - AND DID - OFFER THEIR
EVIDENCE ON THE MATTER.  WHEN THE QUESTION CAME BEFORE THE COMMISSION
FOR DECISION, IT RULED THAT THE APPLICATIONS WERE TECHNICALLY DEFICIENT
AND PERMITTED THE PARTIES TO CORRECT THE SAME THROUGH THE FILING OF
SUPPLEMENTAL APPLICATIONS.  AT NOT TIME DID THE COMMISSION FIND THAT
THE PROPOSAL TO OPERATE WITHIN THE PORT DISTRICT HAD NOT BEEN
ADEQUATELY EXPLORED AND EXAMINED.  RATHER, A CAREFUL READING OF THE
COMMISSION'S ENTIRE OPINION LEADS US TO THE OPPOSITE CONCLUSION.  AT
EVERY STAGE OF THE PROCEEDINGS BEFORE THE HEARING EXAMINER AND ALSO
BEFORE THE COMMISSION, OPERATIONS OF THE APPELLANTS WITHIN THE PORT
DISTRICT WERE CONSIDERED AN INTEGRAL PART OF THE OVERALL PLAN WHICH
THEY SUBMITTED. 

THE RULING OF THE COMMISSION THAT THE SUPPLEMENTAL APPLICATIONS
SHOULD BE CONSIDERED IN "CONJUNCTION WITH THE ORIGINAL APPLICATION,"
DID NOT, IN OUR VIEW, DEPRIVE APPELLEES OF DUE PROCESS OF LAW.  WHEN
APPELLEES REQUESTED A FULL HEARING ON THE SUPPLEMENTAL APPLICATIONS THE
GROUNDS THEY ALLEGED WERE THAT THEY WERE ADEQUATELY SERVING THE PORT;
THAT THEY WERE PREPARED TO SPEND FURTHER SUMS OF MONEY IN THE
CONSTRUCTION OF FACILITIES TO SERVE IT; THAT THEY WERE ENTITLED TO
RETAIN THE TRAFFIC OF THE PORT DISTRICT; THAT THERE WAS NO ADEQUATE
REASON FOR EXTENSION OF THE RAILROAD LINES OF APPELLANTS INTO TERRITORY
HERETOFORE SERVED EXCLUSIVELY BY APPELLEES; AND THAT THE EXTENSION OF
THE RAILROAD LINES OF APPELLANTS WAS NOT JUSTIFIED BY PUBLIC
CONVENIENCE AND NECESSITY.  AS THE COMMISSION ITSELF FOUND,
"EXAMINATION OF THE RECORD DISCLOSES THAT THESE ARE THE SAME ARGUMENTS
AND CONTENTIONS THAT WERE SET FORTH IN PROTESTANTS' ORIGINAL BRIEFS,
EXCEPTIONS TO THE EXAMINER'S PROPOSED REPORT, IN THEIR PETITIONS FOR
RECONSIDERATION, AND IN THEIR ORAL ARGUMENTS."  ILLINOIS CENTRAL R. CO.
CONSTRUCTION AND TRACKAGE, 312 I.C.C. 277, 280.    THE CHANGES IN THE
PROPOSED LEASE AGREEMENT WHICH THE COMMISSION APPROVED WITHOUT A
FURTHER HEARING INVOLVED THE REMOVAL OF THE "EXCLUSIVE RIGHT TO OPERATE
WITHIN THE PORT" CLAUSE, WHICH THAT DOCUMENT HAD GIVEN THE APPELLANTS,
AND THE FORMULA FOR DETERMINING THE ANNUAL RENTAL TO BE CHARGED BY THE
PORT DISTRICT.  AS TO THE FORMER, IT CAN HARDLY BE MAINTAINED THAT THIS
WORKED A HARDSHIP OR DETRIMENT UPON THE APPELLEES.  THE REMOVAL OF THE
CLAUSE, IN FACT, MADE CERTAIN THAT APPELLEES WERE NOT PRECLUDED FROM
CONTINUING THEIR PRESENT OPERATIONS.  AS TO THE RENTAL CLAUSE, IT WILL
BE REMEMBERED THAT THE ORIGINAL PROPOSED AGREEMENT PROVIDED FOR 5%
ANNUAL RENTAL BASED ON THE VALUE OF THE LAND AND TRACKS, BUT NOT TO
EXCEED $2 PER CAR.  THIS WAS CHANGED IN THE FIRST SUPPLEMENTAL
APPLICATION TO A CHARGE OF NOT TO EXCEED $2 PER REVENUE CAR OR
LOCOMOTIVE.  THE FINAL CONTRACT MERELY PROVIDED FOR A CHARGE OF $2 FOR
EACH REVENUE CAR, WHICH WAS MUCH MORE FAVORABLE TO THE APPELLANTS THAN
EITHER OF THE FORMER CLAUSES.  MOREOVER, THE FINAL CHARGE COMPARED
FAVORABLY TO OTHER PER-CAR RATES PREVIOUSLY APPROVED BY THE
COMMISSION.  IN THE LIGHT OF THESE CONSIDERATIONS, AS WELL AS THE FACT
THAT APPELLEES WERE INVITED AND REFUSED TO SIT IN ON THE NEGOTIATION OF
THE CONTRACT; HAD AMPLE OPPORTUNITY AND DID PRESENT THEIR EVIDENCE AS
TO THE REASONABLENESS OF THE CHARGE FOR THE USE OF PORT DISTRICT
PROPERTY; WERE, AND ARE, IN NOWISE BOUND BY THE CONTRACT; AND, FINALLY,
IN VIEW OF THE INSIGNIFICANCE OF THE CHANGES IN THE FINAL AGREEMENT
COMPARED WITH THE FORMER ONES, WE ARE LED TO CONCLUDE THAT APPELLEES
WERE NOT ENTITLED TO ANOTHER HEARING. 

APPELLEES ALSO INSIST THAT A NEW HEARING BE HELD SO THAT EVIDENCE OF
"PRESENT CONDITIONS" COULD BE PRESENTED TO THE COMMISSION RATHER THAN
"SPECULATION."  IT IS TRUE THAT THIS CASE HAS BEEN PENDING FOR 10 YEARS
BUT THIS, RATHER THAN BEING A REASON FOR HOLDING ADDITIONAL HEARINGS,
OPERATES TO THE CONTRARY.  WE HAVE CONCLUDED THAT THE ORDERS OF THE
COMMISSION WERE PROPER UNDER THE CIRCUMSTANCES.  WE HAVE FOUND
SUBSTANTIAL SUPPORT FOR ITS ACTIONS.  ACCORDINGLY, IT IS OUR VIEW THAT
THIS MATTER BE CONCLUDED. 

THE JUDGMENT IS THEREFORE REVERSED AND THE CASE IS REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO SUSTAIN THE COMMISSION'S ORDERS.  IT
IS SO ORDERED. 

FN1  ILLINOIS CENTRAL RAILROAD COMPANY; PENNSYLVANIA RAILROAD
COMPANY; CHICAGO SOUTH SHORE AND SOUTH BEND RAILROAD; BELT RAILWAY
COMPANY OF CHICAGO; THE NEW YORK CENTRAL RAILROAD COMPANY; AND THE
INDIANA HARBOR BELT RAILROAD COMPANY.  THE MICHIGAN CENTRAL RAILROAD
COMPANY SOUGHT ADDITIONAL TRACKAGE APPROVAL BUT HAD NOT SIGNED A
PROPOSED LEASE WITH THE PORT DISTRICT AS THE OTHER APPELLANTS HAD. 

FN2  THE NICKEL PLATE HAS MERGED INTO THE NORFOLK AND WESTERN RAILWAY
COMPANY SINCE THIS PROCEEDING BEGAN. 

FN3  OTHERS INCLUDED:  THE SECRETARY OF AGRICULTURE, THE PORT
DISTRICT, THE CHICAGO BOARD OF TRADE, THE CHICAGO ASSOCIATION OF
COMMERCE AND INDUSTRY, AND TWO PRIVATE COMPANIES OPERATING ON THE LAKE,
CALUMET HARBOR TERMINALS, INC., AND NORTH PIER TERMINAL COMPANY. 

FN4  317 I.C.C. 502, 505. 

FN5  NORFOLK & WESTERN R. CO. V. UNITED STATES, 241 F. SUPP. 974,
977. 

FN6  THE TESTIMONY WAS THAT RAIL TRAFFIC TO AND FROM THE PORT IN 1960
WOULD BE 27,000 CARLOADS WHICH COULD EASILY INCREASE TO 76,500 CARLOADS
IN 1962, 115,000 CARLOADS IN 1968 AND ANYWHERE FROM 250,000 TO 350,000
CARLOADS A YEAR WHEN BOTH SIDES OF THE LAKE ARE COMPLETED.  THERE WAS
ALSO MUCH TESTIMONY AS TO GRAIN SHIPMENTS.  THE SEVEN STATES OF
INDIANA, ILLINOIS, IOWA, MISSOURI, KANSAS, NEBRASKA AND COLORADO IN
1956 PRODUCED 43% OF ALL THE WHEAT AND 51% OF THE CORN GROWN IN THE
UNITED STATES.  THE EXISTING DISPARITY IN RATES WILL DIVERT MUCH GRAIN
FROM ATLANTIC AND GULF PORTS FOR MOVEMENT VIA CHICAGO AND THE ST.
LAWRENCE SEAWAY.  SERVICE TO THE PORT BY ONE RAILROAD DOES NOT APPEAR
ADEQUATE SINCE THE RAILROADS SERVING THE MIDWEST GRAIN-PRODUCING STATES
TERMINATE IN CHICAGO AND HAVE EXTENSIVE SWITCHING AND CLASSIFICATION
YARDS WHICH COULD BE UTILIZED. 

FN7  241 F. SUPP. 974, 979. 

FN8  APPLICATION OF ILLINOIS CENTRAL, PENNSYLVANIA, AND CHICAGO SOUTH
SHORE AND SOUTH BEND RAILROADS FILED OCTOBER 19, 1956, WITH THE
INTERSTATE COMMERCE COMMISSION. 

FN9  RETURN OF ILLINOIS CENTRAL, PENNSYLVANIA, AND THE CHICAGO SOUTH
SHORE AND SOUTH BEND, R. 17. 

MR. JUSTICE BLACK, DISSENTING. 

THE DISTRICT COURT SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION ON THE GROUND THAT THE EVIDENCE FAILED TO SUPPORT ITS
FINDINGS OF FACT.  I DISSENT FROM THE COURT'S REVERSAL OF THAT
HOLDING.  IN UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 488,
IT WAS SAID THAT "CONGRESS HAS MERELY MADE IT CLEAR THAT A REVIEWING
COURT IS NOT BARRED FROM SETTING ASIDE A BOARD DECISION WHEN IT CANNOT
CONSCIENTIOUSLY FIND THAT THE EVIDENCE SUPPORTING THAT DECISION IS
SUBSTANTIAL, WHEN VIEWED IN THE LIGHT THAT THE RECORD IN ITS ENTIRETY
FURNISHES, INCLUDING THE BODY OF EVIDENCE OPPOSED TO THE BOARD'S
VIEW."  IN THE CASE HERE THE DISTRICT COURT FOUND THAT IT COULD NOT
CONSCIENTIOUSLY SUPPORT THE COMMISSION'S FINDINGS AND I WOULD AFFIRM
ITS JUDGMENT, ADHERING TO THE PRINCIPLES SO FIRMLY ANNOUNCED IN
UNIVERSAL CAMERA, SUPRA.
..END :


















CICHOS V. INDIANA 385 U.S. 76 


NO. 45.  ARGUED OCTOBER 19, 1966.  - DECIDED NOVEMBER 14, 1966.  -
REPORTED BELOW:  - IND. - , 208 N.E.2D 685; - IND. - , 210 N.E.2D 363. 


FOLLOWING TRIAL OF PETITIONER ON TWO COUNTS FOR RECKLESS HOMICIDE AND
FOR INVOLUNTARY MANSLAUGHTER, THE JURY FOUND HIM GUILTY OF RECKLESS
HOMICIDE.  THE STATE SUPREME COURT GRANTED HIM A NEW TRIAL AND HE WAS
RETRIED ON BOTH COUNTS, THE SECOND JURY RETURNING THE SAME VERDICT AS
THE FIRST.  THE SAME PRISON SENTENCE AS BEFORE AND A LOWER FINE WERE
IMPOSED.  THE STATE SUPREME COURT AFFIRMED, REJECTING PETITIONER'S
CONTENTION THAT THE FIRST JURY'S SILENCE ON THE MANSLAUGHTER CHARGE
CONSTITUTED AN ACQUITTAL AND THAT RETRIAL ON THAT COUNT HAD
UNCONSTITUTIONALLY SUBJECTED PETITIONER TO DOUBLE JEOPARDY.  HELD:  THE
WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED.  PP. 77-80. 

(A)  UNDER INDIANA LAW THE ACKNOWLEDGEDLY OVERLAPPING OFFENSES OF
INVOLUNTARY MANSLAUGHTER AND RECKLESS HOMICIDE (WHICH CARRIES A LESSER
PENALTY) ARE TREATED MORE AS ONE OFFENSE WITH DIFFERENT PENALTIES THAN
AS A GREATER AND AN INCLUDED OFFENSE.  A FINAL JUDGMENT OF CONVICTION
OF ONE BARS PROSECUTION FOR THE OTHER, AND IF THERE IS A CONVICTION FOR
BOTH OFFENSES, A PENALTY CAN BE IMPOSED FOR ONLY ONE.  PP. 78-79. 

(B)  AS THE INDIANA SUPREME COURT HELD, BECAUSE OF THE IDENTITY OF
THE ELEMENTS OF THE TWO CRIMES AND THE KNOWN TRIAL COURT PRACTICE OF
INSTRUCTING THE JURY TO RETURN A VERDICT ON BUT ONE OF THE CHARGES, THE
JURY'S SILENCE ON THE INVOLUNTARY MANSLAUGHTER COUNT WAS NOT TANTAMOUNT
TO ACQUITTAL, THE RECKLESS HOMICIDE VERDICT ENCOMPASSED THE ELEMENTS OF
INVOLUNTARY MANSLAUGHTER, AND PETITIONER WAS GIVEN THE LESSER PENALTY. 
PP. 79-80. 

CICHOS V. INDIANA. 

CERTIORARI TO THE SUPREME COURT OF INDIANA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

FOLLOWING PETITIONER'S TRIAL IN THE CIRCUIT COURT FOR PARKE COUNTY,
INDIANA, UNDER A TWO-COUNT AFFIDAVIT CHARGING HIM WITH RECKLESS
HOMICIDE AND INVOLUNTARY MANSLAUGHTER, THE JURY RETURNED A VERDICT
RECITING ONLY THAT HE WAS GUILTY OF RECKLESS HOMICIDE.  PETITIONER WAS
SENTENCED TO ONE TO FIVE YEARS IN PRISON AND WAS FINED $500 PLUS COURT
COSTS.  HE APPEALED, AND THE SUPREME COURT OF INDIANA GRANTED A NEW
TRIAL.  PETITIONER WAS RETRIED ON BOTH COUNTS, AND THE SECOND JURY
RETURNED THE SAME VERDICT AS THE FIRST.  HE WAS AGAIN SENTENCED TO ONE
TO FIVE YEARS IN PRISON BUT WAS FINED ONLY $100 PLUS COURT COSTS.  THE
SUPREME COURT OF INDIANA AFFIRMED THIS RECKLESS HOMICIDE CONVICTION,
REJECTING PETITIONER'S CONTENTION THAT HIS RETRIAL ON THE INVOLUNTARY
MANSLAUGHTER COUNT HAD SUBJECTED HIM TO DOUBLE JEOPARDY IN VIOLATION OF
THE INDIANA AND UNITED STATES CONSTITUTIONS.  (FN1) 

ASSERTING THAT THE FIRST JURY'S SILENCE WITH RESPECT TO THE
MANSLAUGHTER CHARGE AMOUNTED TO AN ACQUITTAL UNDER INDIANA LAW AND THAT
HIS RETRIAL ON THAT CHARGE PLACED HIM TWICE IN JEOPARDY, COMPARE GREEN
V. UNITED STATES, 355 U.S. 184, PETITIONER, IN HIS PETITION FOR
CERTIORARI WHICH WE GRANTED, PRESENTED A SINGLE QUESTION:  IS THE FIFTH
AMENDMENT'S PROHIBITION AGAINST PLACING AN ACCUSED IN DOUBLE JEOPARDY
APPLICABLE TO STATE COURT PROSECUTIONS UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT? 

BECAUSE OF THE FOLLOWING CONSIDERATIONS, WHICH HAVE MORE CLEARLY
EMERGED AFTER FULL BRIEFING AND ORAL ARGUMENT, WE DO NOT REACH THE
ISSUE POSED BY THE PETITIONER AND DISMISS THE WRIT AS IMPROVIDENTLY
GRANTED. 

1.  THE INDIANA STATUTES DEFINE INVOLUNTARY MANSLAUGHTER AS THE
KILLING OF "ANY HUMAN BEING  ... INVOLUNTARILY IN THE COMMISSION OF
SOME UNLAWFUL ACT."  IND. STAT. ANN. SEC 10-3405 (1956).  THE STATUTORY
PENALTY IS TWO TO 21 YEARS' IMPRISONMENT.  (FN2)  THE CRIME OF RECKLESS
HOMICIDE, CREATED IN 1939 AS PART OF INDIANA'S COMPREHENSIVE TRAFFIC
CODE, IS COMMITTED BY ANYONE "WHO DRIVES A VEHICLE WITH RECKLESS
DISREGARD FOR THE SAFETY OF OTHERS AND THEREBY CAUSES THE DEATH OF
ANOTHER PERSON."  IND. STAT. ANN. SEC 47-2001(A)(1965).  FOR THIS
CRIME, A FINE AND A PRISON TERM OF FROM ONE TO FIVE YEARS ARE
AUTHORIZED. 

RECOGNIZING THE INHERENT OVERLAP BETWEEN THESE TWO CRIMES IN CASES OF
VEHICULAR HOMICIDE, THE INDIANA LEGISLATURE HAS PROVIDED THAT: 

"A FINAL JUDGMENT OF CONVICTION OF ONE (1) OF THEM SHALL BE A BAR TO
A PROSECUTION FOR THE OTHER; OR IF THEY ARE JOINED IN SEPARATE COUNTS
OF THE SAME INDICTMENT OR AFFIDAVIT, AND IF THERE IS A CONVICTION FOR
BOTH OFFENSES, A PENALTY SHALL BE IMPOSED FOR ONE (1) OFFENSE ONLY." 
IND.  STAT. ANN. SEC 47-2002 (1965). 

THE INDIANA COURTS HAVE ALSO RECOGNIZED THAT RECKLESS HOMICIDE "IS A
FORM OF INVOLUNTARY MANSLAUGHTER," ROGERS V. STATE, 227 IND. 709, 715,
88 N.E.2D 755, 758.  PROOF OF RECKLESS HOMICIDE NECESSARILY ESTABLISHES
AN UNLAWFUL KILLING THAT AMOUNTS TO INVOLUNTARY MANSLAUGHTER.  BOTH
CRIMES REQUIRE PROOF OF THE SAME ELEMENTS TO SUSTAIN A CONVICTION UNDER
INDIANA LAW.  SEE ROGERS V. STATE, SUPRA; STATE V. BECKMAN, 219 IND.
176, 37 N.E.2D 531.  THUS, THE EFFECT OF CHARGING THE TWO CRIMES IN A
SINGLE AFFIDAVIT, AS OCCURRED IN THIS CASE, WAS TO GIVE THE JURY THE
DISCRETION TO SET THE RANGE OF PETITIONER'S SENTENCE AT TWO TO 21 YEARS
BY CONVICTING HIM OF INVOLUNTARY MANSLAUGHTER OR AT ONE TO FIVE YEARS
BY CONVICTING HIM OF RECKLESS HOMICIDE.  AS THE INDIANA SUPREME COURT
IN THE CASE BEFORE US EXPLAINED, "THE OFFENSES HERE INVOLVED ARE
STATUTORILY TREATED MORE AS ONE OFFENSE WITH DIFFERENT PENALTIES RATHER
THAN VIEWING RECKLESS HOMICIDE AS AN INCLUDED OFFENSE IN INVOLUNTARY
MANSLAUGHTER."  - IND. - , - , 208 N.E.2D 685, 688. 

2.  PETITIONER DOES NOT ASSERT THAT HE SHOULD NOT HAVE BEEN TRIED
AGAIN FOR RECKLESS HOMICIDE.  HIS ONLY CLAIM IS THAT HE SHOULD NOT HAVE
BEEN TRIED AGAIN FOR INVOLUNTARY MANSLAUGHTER AS WELL AS RECKLESS
HOMICIDE BECAUSE THE JURY'S SILENCE AT HIS FIRST TRIAL WITH RESPECT TO
INVOLUNTARY MANSLAUGHTER WAS LEGALLY AN ACQUITTAL ON THIS CHARGE. 

HOWEVER, THE INDIANA SUPREME COURT SQUARELY REJECTED THIS
INTERPRETATION OF THE FIRST JURY'S VERDICT.  THE COURT DISTINGUISHED A
LONG LINE OF INDIANA CASES WHICH HAVE HELD THAT A JURY'S SILENCE MUST
BE DEEMED AN ACQUITTAL.  (FN3)  BECAUSE OF THE IDENTITY OF THE ELEMENTS
OF THESE TWO CRIMES, AND BECAUSE THE INDIANA SUPREME COURT KNEW OF "THE
TRIAL COURT PRACTICE OF TELLING THE JURY TO RETURN A VERDICT ON ONLY
ONE OF THE CHARGES IN VIEW OF THE LIMITATION ON PENALTY," (FN4) ID., AT
- , 208 N.E.2D, AT 687, THE COURT CONCLUDED THAT "A VERDICT OF GUILTY
OF RECKLESS HOMICIDE DOES NOT LOGICALLY EXCLUDE THE POSSIBILITY OF SUCH
A VERDICT ON THE CHARGE OF INVOLUNTARY MANSLAUGHTER."  ID., AT - , 208
N.E.2D, AT 688-689.  THEREFORE, "THE LOGIC OF THE PRINCIPLE WHICH
STATES SILENCE IS EQUAL TO AN ACQUITTAL IS PERHAPS MADE INAPPROPRIATE
TO CHARGES OF THESE OFFENSES, RELATED TO THE SAME UNLAWFUL TRANSACTION
...  .  RATHER THAN TREAT THE SILENCE OF THE JURY IN THE INVOLUNTARY
MANSLAUGHTER COUNT IN THIS CASE AS AN ACQUITTAL, THE BETTER RESULT
WOULD SEEM TO BE TO HOLD THAT THE RECKLESS HOMICIDE VERDICT ENCOMPASSED
THE ELEMENTS OF INVOLUNTARY MANSLAUGHTER, AND THAT APPELLANT WAS SIMPLY
GIVEN THE LESSER PENALTY."  ID., AT - , 208 N.E.2D, AT 687. 

IN THE LIGHT OF THE INDIANA STATUTORY SCHEME AND THE RULINGS OF THE
INDIANA SUPREME COURT IN THIS CASE, WE CANNOT ACCEPT PETITIONER'S
ASSERTIONS THAT THE FIRST JURY ACQUITTED HIM OF THE CHARGE OF
INVOLUNTARY MANSLAUGHTER AND THAT THE SECOND TRIAL THEREFORE PLACED HIM
TWICE IN JEOPARDY.  CONSEQUENTLY, WE DO NOT REACH OR DECIDE THE
QUESTION TENDERED BY THE PETITION FOR CERTIORARI, AND THE WRIT IS
DISMISSED AS IMPROVIDENTLY GRANTED.  IT IS SO ORDERED. 

FN1  "NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENCE TO BE
TWICE PUT IN JEOPARDY OF LIFE OR LIMB."  U.S. CONST., AMEND. 5.  "NO
PERSON SHALL BE PUT IN JEOPARDY TWICE FOR THE SAME OFFENSE."  IND.
CONST., ART. I, SEC 14. 

FN2  INDIANA ADOPTED THE COMMON-LAW CRIME OF INVOLUNTARY MANSLAUGHTER
EARLY IN ITS HISTORY.  THE CRIME HAS TRADITIONALLY BEEN APPLIED BY THE
INDIANA COURTS TO CASES OF VEHICULAR ACCIDENTS RESULTING IN DEATH. 
E.G., SMITH V. STATE, 186 IND. 252, 115 N.E. 943 (AUTO ACCIDENT); STATE
V. DORSEY, 118 IND. 167, 20 N.E. 777 (RAILROAD ACCIDENT). 

FN3  THIS DOCTRINE DEVELOPED IN RESPONSE TO CONTENTIONS THAT SILENCE
ON ANY COUNT REQUIRED THE SETTING ASIDE OF THE ENTIRE VERDICT UNDER THE
COMMON-LAW RULE THAT A DEFENDANT HAS AN ABSOLUTE RIGHT TO A JURY
VERDICT ON ALL CHARGES FOR WHICH HE IS TRIED.  SEE WEINZORPFLIN V.
STATE, 7 BLACKF.  186 (IND. 1844).  SINCE A RECKLESS HOMICIDE
CONVICTION IS A STATUTORY BAR TO FURTHER PROSECUTION FOR INVOLUNTARY
MANSLAUGHTER, SEC 47-2002, SUPRA, PETITIONER CANNOT BE ADVERSELY
AFFECTED BY THE JURY'S SILENCE WITH RESPECT TO THE INVOLUNTARY
MANSLAUGHTER COUNT. 

FN4  THE JUDGE'S CHARGE TO THE JURY IN THE FIRST TRIAL IS NOT A PART
OF THE RECORD IN THIS CASE. 

WHILE CONCURRING IN THE COURT'S OPINION, MR. JUSTICE BLACK ADHERES TO
HIS DISSENT IN BARTKUS V. ILLINOIS, 359 U.S. 121, 150, TO THE EFFECT
THAT THE FOURTEENTH AMENDMENT MAKES THE DOUBLE JEOPARDY PROVISION OF
THE FIFTH AMENDMENT APPLICABLE TO THE STATES. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

IF THIS WERE A FEDERAL CASE, IT WOULD, IN MY VIEW, BE COVERED BY
GREEN V. UNITED STATES, 355 U.S. 184 (1957).  IN GREEN, THE DEFENDANT
WAS NOT ACQUITTED OF THE FIRST DEGREE MURDER CHARGE AT THE FIRST
TRIAL.  JUST AS IN THE PRESENT CASE, THE JURY DID NOT RETURN A VERDICT
ON THAT COUNT, BUT CONVICTED GREEN ON THE LESSER CHARGES OF ARSON AND
SECOND DEGREE MURDER.  BUT THIS COURT HELD THAT GREEN COULD NOT BE
RETRIED ON THE FIRST DEGREE MURDER CHARGE.  IT CLEARLY AND UNMISTAKABLY
HELD THAT WHETHER GREEN WAS "ACQUITTED" OF THE GREATER OFFENSE WAS OF
NO CONSEQUENCE.  HE HAD BEEN EXPOSED TO JEOPARDY.  SEE 355 U.S., AT
188, 190-191.  SO, IN THE PRESENT CASE, IT IS OF NO CONSEQUENCE WHETHER
THE SILENCE OF THE JURY ON THE INVOLUNTARY MANSLAUGHTER COUNT AMOUNTED
TO ACQUITTAL.  PETITIONER WAS PUT IN JEOPARDY ON THAT COUNT AND CANNOT
AGAIN BE TRIED ON THAT CHARGE. 

THE ONLY DIFFERENCE BETWEEN GREEN AND THE PRESENT CASE - EXCEPT AS TO
THE JURISDICTIONS - IS THAT IN GREEN, ON THE SECOND TRIAL, THE
DEFENDANT WAS CONVICTED ON THE AGGRAVATED COUNT.  IN THE PRESENT CASE,
PETITIONER WAS AGAIN CONVICTED ON THE LESS SERIOUS CHARGE.  I CANNOT
SEE THAT THIS CAN JUSTIFY A DIFFERENCE IN RESULT.  PETITIONER SHOULD
NOT HAVE BEEN RETRIED ON AN AFFIDAVIT INCLUDING THE MORE SERIOUS
CHARGE, WHICH WAS NOT INVOLVED IN THE APPEAL.  THAT CHARGE WAS DEAD -
BEYOND RESUSCITATION.  ITS WRONGFUL INCLUSION IN THE AFFIDAVIT WAS
MATERIALLY HARMFUL TO PETITIONER.  FIRST, IT EXPOSED HIM TO THE HAZARDS
OF PROSECUTION AND CONVICTION FOR THE MORE ONEROUS OFFENSE.  SECOND, IT
AGAIN GAVE THE PROSECUTION THE ADVANTAGE OF OFFERING THE JURY A CHOICE
A SITUATION WHICH IS APT TO INDUCE A DOUBTFUL JURY TO FIND THE
DEFENDANT GUILTY OF THE LESS SERIOUS OFFENSE RATHER THAN TO CONTINUE
THE DEBATE AS TO HIS INNOCENCE.  SEE UNITED STATES EX REL. HETENYI V.
WILKINS, 348 F.2D 844 (C.A.2D CIR. 1965), CERT. DENIED, 383 U.S. 913
(1966).  AND BEYOND THE QUESTION OF INJURY TO THE PETITIONER IN THIS
PARTICULAR CASE IS THE FACT THAT THE PROCEDURE WHICH INDIANA USED
CHILLS THE RIGHT OF APPEAL.  IT "HAS THE NECESSARY EFFECT OF UNLAWFULLY
BURDENING AND PENALIZING THE EXERCISE OF THE RIGHT TO SEEK REVIEW OF A
CRIMINAL CONVICTION."  UNITED STATES V. EWELL, 383 U.S. 116, 130
(1966)(DISSENTING OPINION).  DEFENDANTS IN INDIANA IN THIS TYPE OF CASE
ARE ADMONISHED THAT IF THEY APPEAL FROM A CONVICTION ON THE LESS
ONEROUS CHARGE THEY DO SO AT THE PERIL THAT ON THE NEXT TRIAL THEY MAY
BE TRIED, AND POSSIBLY CONVICTED, ON THE MORE SERIOUS COUNT. 

THIS IS A STATE CASE.  BUT THE FOURTEENTH AMENDMENT'S REQUIREMENT OF
DUE PROCESS, IN MY VIEW, CERTAINLY AND CLEARLY INCLUDES A PROHIBITION
OF THIS KIND OF HEADS-YOU-LOSE, TAILS-YOU-LOSE TRIAL AND APPELLATE
PROCESS.  SEE THE DISSENT OF MR. JUSTICE BLACK IN BARTKUS V. ILLINOIS,
359 U.S. 121, 150 (1959); BROCK V. NORTH CAROLINA, 344 U.S. 424, 429,
440 (1953)(DISSENTING OPINIONS OF VINSON, C.J., AND DOUGLAS, J.). 

THE SECOND CIRCUIT'S VIEWS ARE IN ACCORDANCE WITH THE POSITION STATED
HEREIN.  SEE UNITED STATES EX REL. HETENYI V. WILKINS, SUPRA. 

I WOULD REVERSE AND REMAND. 
..END :











UNITED GAS PIPE LINE V. FEDERAL POWER COMMISSION 385 U.S. 83 


NO. 49.  ARGUED OCTOBER 19-20, 1966.  - DECIDED NOVEMBER 14, 1966.  -
350 F.2D 689, AFFIRMED. 


PETITIONER, UNITED GAS PIPE LINE CO. (UNITED), CONTRACTED TO BUY GAS
PRODUCED BY RESPONDENT CONTINENTAL OIL CO. (CONTINENTAL) FROM THE
JOHNSON BAYOU FIELD IN LOUISIANA.  CONTINENTAL CONSTRUCTED DELIVERY
FACILITIES, AND UNITED PROVIDED FACILITIES TO RECEIVE THE GAS INTO ITS
INTERSTATE SYSTEM.  THE CONTRACT PARTIES ON APPLICATION TO RESPONDENT
FEDERAL POWER COMMISSION (FPC) WERE GRANTED CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY.  CONTINENTAL'S CERTIFICATE COVERED SALE OF
JOHNSON BAYOU GAS; UNITED'S CERTIFICATE COVERED CONSTRUCTION OF ITS
FACILITIES AND CONTINUED TRANSPORTATION OF THE GAS.  CONTINENTAL
ELECTED TO TERMINATE AT THE END OF THE CONTRACT'S PRIMARY TERM, REFUSED
UNITED'S OFFER TO CONTINUE PURCHASING ON A DAY-TO-DAY BASIS AT THE OLD
CONTRACT RATE, AND FILED WITH THE FPC A RATE INCREASE EFFECTIVE ON THE
CONTRACT EXPIRATION DATE WHICH WAS ACCEPTED OVER UNITED'S PROTEST. 
UNITED, AFTER NOTICE TO CONTINENTAL, CEASED PURCHASING JOHNSON BAYOU
GAS ON THE CONTRACT EXPIRATION DATE.  FOLLOWING CONTINENTAL'S PETITION
FOR A SHOW-CAUSE ORDER AND A FULL HEARING, THE FPC FOUND UNITED'S
CEASING TO TAKE GAS FROM THAT FIELD AN ABANDONMENT OF ITS FACILITIES
FOR THAT PURPOSE AND OF ITS SERVICE THEREBY, IN VIOLATION OF SEC 7(B)
OF THE NATURAL GAS ACT, WHICH FORBIDS SUCH ABANDONMENTS WITHOUT THE
FPC'S PRIOR CONSENT.  THE FPC ISSUED AN ORDER, THEREAFTER UPHELD BY THE
COURT OF APPEALS, THAT UNITED RENEW OPERATION OF ITS JOHNSON BAYOU
FACILITIES AND BUY GAS AT CONTINENTAL'S NEW RATE.  HELD:  PETITIONER'S
REFUSAL TO CONTINUE RECEIVING JOHNSON BAYOU GAS FOR TRANSPORTATION IN
INTERSTATE COMMERCE CONSTITUTED AN ABANDONMENT OF "FACILITIES" AND
"SERVICE" WHICH, UNDER SEC 7(B) OF THE ACT, REQUIRED FPC APPROVAL.  PP.
86-91. 

(A)  THE "FACILITIES SUBJECT TO THE JURISDICTION" OF THE FPC TO WHICH
SEC 7(B) APPLIES ARE THOSE REQUIRED FOR THE INTERSTATE TRANSPORTATION
OF NATURAL GAS AND FOR THE INTERSTATE SALE OF GAS FOR RESALE TO THE
ULTIMATE CONSUMER.  P. 87. 

(B)  "ABANDONMENT" OF FACILITIES DOES NOT REQUIRE THEIR PHYSICAL
ALTERATION BUT CAN BE ACCOMPLISHED, AS HERE, BY ALLOWING THEM TO BECOME
OPERATIONALLY DORMANT FOR AN INDEFINITE TIME.  PP. 87-88. 

(C)  "SERVICE" INCLUDES THE TAKING AND TRANSPORTATION OF GAS FROM A
PARTICULAR FIELD AS WELL AS ITS SALE.  PP. 88-89. 

(D)  THE FPC HAS POWER TO REGULATE THE PURCHASE OF GAS WHERE
NECESSARY TO THE EXERCISE OF ITS AUTHORITY OVER THE TRANSPORTATION AND
SALE THEREOF.  PP. 89-90. 

(E)  THOUGH UNITED MUST REACTIVATE ITS JOHNSON BAYOU FACILITIES AND
RESTORE SERVICE, IT MAY ASK THE FPC TO PERMIT ABANDONMENT UPON A PROPER
SHOWING OF JUSTIFICATION THEREFOR.  P. 91. 

UNITED GAS PIPE LINE CO. V. FEDERAL POWER COMMISSION ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

UNITED GAS PIPE LINE COMPANY AND CONTINENTAL OIL COMPANY EXECUTED A
CONTRACT EFFECTIVE JANUARY 31, 1953, PROVIDING FOR THE SALE BY
CONTINENTAL AND THE PURCHASE BY UNITED OF GAS PRODUCED FROM THE JOHNSON
BAYOU FIELD IN THE STATE OF LOUISIANA, AT PRICES STATED IN THE
CONTRACT.  THE CONTRACT WAS TO RUN FOR 10 YEARS AND FROM YEAR TO YEAR
THEREAFTER UNLESS TERMINATED BY EITHER PARTY ON 90 DAYS' NOTICE.  TO
EFFECTUATE DELIVERY TO UNITED'S NEARBY MUD LAKE TRANSMISSION LINE FOR
TRANSPORTATION OF THE GAS INTO THE BEAUMONT, TEXAS, AREA, CONTINENTAL
CONSTRUCTED SEVERAL THOUSAND FEET OF PIPELINE, SEPARATORS AND STORAGE
TANKS.  UNITED, FOR ITS PART, CONSTRUCTED A SHORT LENGTH OF PIPELINE, A
SEPARATOR, A METER STATION AND VALVES.  UNITED SOUGHT, WAS GRANTED AND
ACCEPTED A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY AUTHORIZING
THE CONTINUED TRANSPORTATION OF GAS FROM THE JOHNSON BAYOU FIELD AND
THE CONSTRUCTION AND OPERATION OF THE FACILITIES NECESSARY THEREFOR. 
14 F.P.C. 582.   LIKEWISE, CONTINENTAL WAS ISSUED A CERTIFICATE
AUTHORIZING THE SALE OF GAS TO UNITED UNDER THE TERMS OF THE CONTRACT. 
15 F.P.C. 1650. 

IN OCTOBER 1962 CONTINENTAL ELECTED TO TERMINATE THE CONTRACT AT THE
END OF THE PRIMARY TERM.  NEGOTIATIONS FOR A NEW CONTRACT WERE
FRUITLESS.  CONTINENTAL, AFTER REFUSING UNITED'S OFFER TO CONTINUE
PURCHASING ON A DAY-TO-DAY BASIS AT THE OLD CONTRACT RATE, FILED A RATE
INCREASE WITH THE COMMISSION ASKING FOR AN EFFECTIVE DATE OF JANUARY
31, 1963.  THE COMMISSION ACCEPTED THE FILING OVER UNITED'S PROTEST. 
(FN1)  UNITED, AFTER ADVANCE NOTICE TO CONTINENTAL, THEN CEASED
PURCHASING GAS FROM THE JOHNSON BAYOU FIELD ON JANUARY 31, 1963, AND
HAS SINCE REFUSED TO PURCHASE GAS FROM THAT SOURCE.  FOLLOWING A
PETITION BY CONTINENTAL, AN ORDER TO SHOW CAUSE ISSUED BY THE
COMMISSION TO UNITED AND A FULL HEARING, THE COMMISSION FOUND THAT
UNITED, BY CEASING TO TAKE GAS FROM THE JOHNSON BAYOU FIELD, HAD
ABANDONED ITS FACILITIES USED FOR THIS PURPOSE AS WELL AS THE SERVICE
RENDERED BY THESE FACILITIES, CONTRARY TO THE PROVISIONS OF SEC 7(B) OF
THE NATURAL GAS ACT WHICH FORBID SUCH ABANDONMENT WITHOUT THE CONSENT
OF THE COMMISSION BEING FIRST OBTAINED.  (FN2) ACCORDINGLY, THE
COMMISSION ORDERED UNITED TO "RENEW OPERATION OF ITS JOHNSON BAYOU
FIELD FACILITIES USED TO PURCHASE GAS FROM CONTINENTAL" AND DIRECTED
THAT THE PURCHASES BY UNITED WERE TO BE AT CONTINENTAL'S NEW RATE AND
IN VOLUMES CONSISTENT WITH THE TERMS OF THE CONTRACT PREVIOUSLY IN
FORCE.   31 F.P.C. 1079, 1086.  THE COURT OF APPEALS UPHELD THE
COMMISSION'S ORDER, 350 F.2D 689, AND WE GRANTED CERTIORARI, 383 U.S.
924, BECAUSE THE CASE INVOLVED AN IMPORTANT QUESTION CONCERNING THE
COMMISSION'S JURISDICTION UNDER THE NATURAL GAS ACT.  WE AFFIRM. 

WE AGREE WITH THE COMMISSION AND THE COURT OF APPEALS THAT UNITED'S
REFUSAL TO CONTINUE RECEIVING GAS FROM THE JOHNSON BAYOU FIELD
CONSTITUTED AN ABANDONMENT OF "FACILITIES" AND A "SERVICE" TO WHICH SEC
7(B) APPLIES.  THAT SECTION PLACES CONDITIONS ON THE ABANDONMENT OF
FACILITIES OR OF ANY SERVICE RENDERED THEREBY.  THE FACILITIES COVERED
BY THE SECTION ARE THOSE "SUBJECT TO THE JURISDICTION OF THE
COMMISSION," THE FURTHER IDENTIFICATION OF WHICH REQUIRES RESORT TO
OTHER SECTIONS OF THE ACT.  SECTION 1(B) (FN3) DECLARES THAT THE
PROVISIONS OF THE ACT ARE TO APPLY TO:  (1) THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, (2) THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION AND (3)
NATURAL GAS COMPANIES ENGAGED IN SUCH TRANSPORTATION OR SALE.  UNDER
SEC 7(C) (FN4) NO NATURAL GAS COMPANY IS PERMITTED TO ENGAGE IN THE
TRANSPORTATION OR SALE OF NATURAL GAS, OR TO UNDERTAKE THE CONSTRUCTION
OR EXTENSION OF FACILITIES THEREFOR WITHOUT A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY AUTHORIZING SUCH ACTS OR OPERATIONS.  THUS
THE "FACILITIES SUBJECT TO THE JURISDICTION OF THE COMMISSION" WHICH
ARE REACHED BY THE ABANDONMENT PROVISIONS OF SEC 7(B) ARE THOSE
FACILITIES REQUIRED FOR THE INTERSTATE TRANSPORTATION OF NATURAL GAS
AND FOR THE INTERSTATE SALE OF GAS FOR RESALE TO THE ULTIMATE
CONSUMER.  CONVERSELY, IT WOULD SEEM BEYOND ARGUMENT THAT THE
PROSCRIPTION OF ABANDONING "ANY SERVICE" RENDERED BY THOSE FACILITIES
WOULD INCLUDE BOTH TRANSPORTATION AND SALE, THE TWIN FUNCTIONS WHICH
SUBJECT THE FACILITIES TO THE PROVISIONS OF THE ACT. 

WE ARE CONVINCED THAT UNITED'S JOHNSON BAYOU FIELD FACILITIES WERE
SUBJECT TO THE JURISDICTION OF THE COMMISSION.  THEY WERE CONSTRUCTED
SOLELY FOR THE PURPOSE OF THE TAKING AND INTERSTATE TRANSPORTATION OF
JOHNSON BAYOU GAS.  THEY COULD NOT, THEREFORE, BE ABANDONED WITHOUT THE
CONSENT OF THE COMMISSION AND WE DO NOT UNDERSTAND UNITED'S POSITION IN
THIS COURT TO BE OTHERWISE.  UNITED, HOWEVER, INSISTS THAT THERE HAS
NOT IN FACT BEEN A SEC 7(B) "ABANDONMENT."  IT IS TRUE THAT THE JOHNSON
BAYOU FIELD FACILITIES WERE NEITHER REMOVED NOR DISCONNECTED.  THEIR
USE COULD HAVE BEEN RESUMED AT ANY TIME HAD UNITED SO DESIRED.  BUT THE
PHYSICAL ALTERATION OF FACILITIES IS NOT A SINE QUA NON RESTRICTING THE
COMMISSION'S JURISDICTION UNDER SEC 7(B).  HERE UNITED CEASED TAKING
AND TRANSPORTING GAS FROM THE JOHNSON BAYOU FIELD ON JANUARY 31, 1963,
HAS NOT TAKEN THAT GAS OR USED ITS FACILITIES CONSTRUCTED FOR THAT
PURPOSE SINCE THAT TIME AND HAS NO INTENTION OF DOING SO AS LONG AS
CONTINENTAL'S PRESENT RATES CONTINUE IN EFFECT.  UNITED, THE COMMISSION
FOUND, HAD BY ITS OWN ACTION RENDERED ITS FACILITIES "OPERATIONALLY
DORMANT FOR A PERIOD OF INDEFINITE DURATION."  31 F.P.C. 1079, 1083. 
IN ADDITION, THE COMMISSION FOUND THAT ITS INTEREST WENT BEYOND THE
PHYSICAL ALTERATION OF FACILITIES.  "WE HAVE A REGULATORY
RESPONSIBILITY TO ASSURE THAT GAS ONCE DEDICATED TO THE INTERSTATE
MARKET WILL CONTINUE TO BE AVAILABLE TO THAT MARKET SO LONG AS THE
PUBLIC INTEREST DEMANDS  ...  ."  31 F.P.C. 1079, 1082.  AS THE INSTANT
PROCEEDING UNMISTAKABLY REVEALED, THE RESPONSIBILITY OF THE COMMISSION
COULD NOT ADEQUATELY BE MET IF IT WERE POWERLESS TO ASSURE THAT
FACILITIES "CERTIFICATED TO TRANSPORT THIS GAS," IBID., CONTINUED TO
OPERATE.  TO HOLD UNITED'S CONDUCT AN ABANDONMENT WITHIN THE MEANING OF
SEC 7(B) IS A REASONABLE INTERPRETATION OF THE ACT AND WE SHALL NOT
DISTURB IT. 

THE COROLLARY CONCLUSION, INESCAPABLY PRESENTED ON THE FACE OF THE
ACT ITSELF, IS THAT THE CONSENT OF THE COMMISSION IS NECESSARY BEFORE
UNITED CAN CEASE TAKING AND TRANSPORTING JOHNSON BAYOU GAS, SINCE THIS
IS A SERVICE UNITED RENDERED THROUGH THE FACILITIES IT CONSTRUCTED FOR
THAT VERY PURPOSE.   UNITED, HOWEVER, CONTENDS THAT THE WORDS "ANY
SERVICE" IN SEC 7(B) INCLUDE ONLY THE SALE OF NATURAL GAS, NOT THE
TAKING AND TRANSPORTATION OF GAS FROM ANY PARTICULAR FIELD.  IN ITS
VIEW IT IS FREE AT ANY TIME TO ABANDON THE INTERSTATE TRANSPORTATION OF
GAS FROM THE JOHNSON BAYOU FIELD, AND TO DECIDE FOR ITSELF WHOLLY APART
FROM THE COMMISSION WHAT GAS IT WILL CONTINUE TO TRANSPORT INTERSTATE. 
BUT NOTHING IN THE ACT, ITS LEGISLATIVE HISTORY OR IN OUR CASES HAS
BEEN CALLED TO OUR ATTENTION WHICH PERSUASIVELY SUPPORTS THIS NARROW
VIEW OR WHICH WOULD JUSTIFY RECOGNIZING THE SALE OF GAS AS A SERVICE
BUT NOT THE PRECEDING TRANSPORTATION WITHOUT WHICH THERE WOULD BE NO
SALE AT ALL. 

THE ACT GIVES THE COMMISSION JURISDICTION OVER INTERSTATE
TRANSPORTATION OF NATURAL GAS AS A SEPARATE AND DISTINCT MATTER,
WHETHER THE TRANSPORTATION IS FOR HIRE OR FOR SALE AND WHETHER THE SALE
IS FOR CONSUMPTION OR RESALE.  FPC V. EAST OHIO GAS CO., 338 U.S. 464;
FPC V. TRANSCONTINENTAL GAS PIPE LINE CORP., 365 U.S. 1; PANHANDLE
EASTERN PIPE LINE CO. V. FPC, 359 F.2D 675.  HERE, OF COURSE, THE
TRANSPORTATION IS NOT FOR HIRE BUT FOR SALE, SOME FOR CONSUMPTION AND
SOME FOR RESALE.  WHAT IS MORE, IN SUNRAY MID-CONTINENT OIL CO. V. FPC,
364 U.S. 137, 149-150, THE COURT CLEARLY RECOGNIZED THAT THE TERM
"SERVICE" IS NOT CONFINED TO SALES BUT EXTENDS TO THE "MOVEMENT OF GAS
IN INTERSTATE COMMERCE" AND THAT ONE WHO ENGAGES IN EITHER THE SALE OR
THE TRANSPORTATION OF GAS IS PERFORMING A SERVICE WITHIN THE MEANING OF
BOTH SECS 7(E) AND 7(B).  IT COULD NOT BE MORE CLEAR THAT UNITED HERE
ABANDONED A "SERVICE," THE TAKING OF JOHNSON BAYOU FIELD GAS AND ITS
TRANSPORTATION IN INTERSTATE COMMERCE.  THE STATUTORY NECESSITY OF
PRIOR COMMISSION APPROVAL, WITH ITS UNDERLYING FINDINGS, CANNOT BE
ESCAPED. 

EVEN SO, UNITED ARGUES THAT THE ACT GIVES THE COMMISSION NO AUTHORITY
OVER THE PURCHASE OF NATURAL GAS, AND THAT THE COMMISSION THEREFORE
EXCEEDED ITS JURISDICTION IN ORDERING UNITED TO CONTINUE PURCHASING GAS
FROM CONTINENTAL IN AMOUNTS SPECIFIED IN AN EXPIRED CONTRACT AND AT
PRICES SET UNILATERALLY BY CONTINENTAL.  IT IS TRUE THAT THE ACT DOES
NOT IN SO MANY WORDS GRANT THE SAME EXPRESS AUTHORITY OVER PURCHASES TO
THE COMMISSION THAT IT DOES OVER SALES.  NEITHER IS THERE A BLANKET
EXEMPTION OF COMMISSION JURISDICTION OVER THE PURCHASE OF GAS, AND
THERE IS EXPRESS AUTHORITY OVER TRANSPORTATION AS WELL AS SALE.  UNDER
SEC 16, THE COMMISSION HAS THE POWER "TO PERFORM ANY AND ALL ACTS, AND
TO  ...  ISSUE  ...  SUCH ORDERS, RULES, AND REGULATIONS AS IT MAY FIND
NECESSARY OR APPROPRIATE TO CARRY OUT THE PROVISIONS OF THIS ACT."  52
STAT. 830, 15 U.S.C. SEC 717O.  WHERE IT IS NECESSARY TO REGULATE THE
PURCHASE OF GAS IN SOME RESPECTS TO CARRY OUT ITS EXPRESSLY GRANTED
AUTHORITY OVER TRANSPORTATION AND SALE, THE COMMISSION MUST HAVE THE
POWER TO DO SO.  IN THE CASE BEFORE US, THERE HAS BEEN A SEC 7(B)
ABANDONMENT OF FACILITIES OR SERVICES WITHOUT COMMISSION CONSENT.  IT
IS THEREFORE QUITE PROPER FOR THE COMMISSION TO ORDER THE FACILITIES
REACTIVATED AND THE ABANDONED SERVICE RESTORED, EVEN THOUGH THE
RESUMPTION BY UNITED OF THE TRANSPORTATION OF GAS FROM THE JOHNSON
BAYOU FIELD WILL ENTAIL THE PURCHASE OF GAS FROM CONTINENTAL AT THE
LEGALLY ESTABLISHED PRICE.  UNDOUBTEDLY, THE CONTINUED PURCHASE OF GAS
HAS BEEN ORDERED BUT ONLY AS AN INCIDENT TO REGULATING TRANSPORTATION
OR SALE.  THIS IS NO MORE THAN THE ACT AUTHORIZES AND NO MORE THAN
UNITED UNDERTOOK TO DO WHEN IT SOUGHT AND RECEIVED CERTIFICATION FOR
THE SERVICE IT SOUGHT TO PERFORM.  (FN5) 

AFTER UNITED HAD BEGUN TO PURCHASE GAS FROM THE JOHNSON BAYOU FIELD
IN 1953 AND TO TRANSPORT IT TO MARKETS IN THE STATE OF TEXAS, UNITED
SOUGHT A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY AUTHORIZING
THE CONSTRUCTION AND USE OF THE FACILITIES IT HAD BUILT AND THE
CONTINUED TRANSPORTATION OF THE JOHNSON BAYOU GAS.  UNITED THEN
ASSERTED THAT THE PUBLIC CONVENIENCE AND NECESSITY REQUIRED THE
ISSUANCE OF SUCH A CERTIFICATE.  (FN6)  BOTH THE CONSTRUCTION AND
OPERATION OF THE FACILITIES AND THE TRANSPORTATION OF GAS BY MEANS
THEREOF WERE FOUND BY THE COMMISSION TO BE REQUIRED BY THE PUBLIC
CONVENIENCE AND NECESSITY.  UNITED WAS FOUND "ABLE AND WILLING  ...  TO
PERFORM THE SERVICE ...  " FOR WHICH IT HAD VOLUNTEERED.  (FN7)  A
CERTIFICATE WAS ACCORDINGLY ISSUED AND FORMALLY ACCEPTED BY UNITED. 
UNITED NOW WISHES TO ABANDON THE EXPRESS SERVICE IT AGREED TO PERFORM -
THE CONTINUED TRANSPORTATION OF JOHNSON BAYOU GAS - WITHOUT A SEC 7(B)
FINDING BY THE COMMISSION "THAT THE PRESENT OR FUTURE PUBLIC
CONVENIENCE OR NECESSITY PERMITS SUCH ABANDONMENT."  THIS IS PRECISELY
WHAT THE ACT FORBIDS. 

UNITED CLAIMS THAT IT DOES NOT NEED THE JOHNSON BAYOU GAS TO SERVE
ITS CUSTOMERS AND THAT THE FORCED PURCHASE OF GAS AT PRICES SET BY
CONTINENTAL AND APPROVED BY THE COMMISSION WITHOUT REGARD TO THE PRICES
AT WHICH UNITED UNDER CONTRACT OR COMPETITION IS BOUND TO SELL THE GAS
DEPRIVES IT OF PROPERTY WITHOUT DUE PROCESS OF LAW.  IN OUR VIEW, THESE
CLAIMS ARE PREMATURE.  WE DO NOT HOLD THAT IT WOULD BE INAPPROPRIATE
FOR THE COMMISSION TO PERMIT ABANDONMENT IN THIS CASE IF IT IS ASKED TO
DO SO AND THE NECESSARY FINDINGS ARE MADE.  WE HOLD ONLY THAT UNITED
HAS ABANDONED FACILITIES AND SERVICE WITHOUT THE CONSENT OF THE
COMMISSION AND THAT IT MUST REACTIVATE THOSE FACILITIES AND RESTORE THE
SERVICE UNTIL AND UNLESS THE STATUTORY CONSENT IS OBTAINED.  IF UNITED
NOW RESORTS TO THE COMMISSION, IT WILL HAVE EVERY OPPORTUNITY TO
PRESENT ITS ECONOMIC AND CONSTITUTIONAL GROUNDS FOR ABANDONMENT. 

FOR THE REASONS HEREIN STATED, THE JUDGMENT OF THE COURT OF APPEALS
IS AFFIRMED.  IT IS SO ORDERED. 

FN1  UNITED UNSUCCESSFULLY PETITIONED FOR REHEARING OF THE
COMMISSION'S ORDER APPROVING THE RATE INCREASE, 29 F.P.C. 525, BUT DID
NOT SEEK JUDICIAL REVIEW OF THE ORDER. 

FN2  SECTION 7(B) OF THE ACT PROVIDES THAT "NO NATURAL-GAS COMPANY
SHALL ABANDON ALL OR ANY PORTION OF ITS FACILITIES SUBJECT TO THE
JURISDICTION OF THE COMMISSION, OR ANY SERVICE RENDERED BY MEANS OF
SUCH FACILITIES, WITHOUT THE PERMISSION AND APPROVAL OF THE COMMISSION
FIRST HAD AND OBTAINED, AFTER DUE HEARING, AND A FINDING BY THE
COMMISSION THAT THE AVAILABLE SUPPLY OF NATURAL GAS IS DEPLETED TO THE
EXTENT THAT THE CONTINUANCE OF SERVICE IS UNWARRANTED, OR THAT THE
PRESENT OR FUTURE PUBLIC CONVENIENCE OR NECESSITY PERMIT SUCH
ABANDONMENT."  52 STAT. 824, 15 U.S.C.  SEC 717FB).    FN3  THE TEXT OF
THE SECTION PROVIDES:  "THE PROVISIONS OF THIS ACT SHALL APPLY TO THE
TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN
INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC
CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND
TO NATURAL-GAS COMPANIES ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT
SHALL NOT APPLY TO ANY OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR
TO THE LOCAL DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR
SUCH DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 
52 STAT. 821, 15 U.S.C. SEC 717(B).    FN4  THE TEXT OF THE SECTION, IN
RELEVANT PART, PROVIDES THAT "NO NATURAL-GAS COMPANY OR PERSON WHICH
WILL BE A NATURAL-GAS COMPANY UPON COMPLETION OF ANY PROPOSED
CONSTRUCTION OR EXTENSION SHALL ENGAGE IN THE TRANSPORTATION OR SALE OF
NATURAL GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR
UNDERTAKE THE CONSTRUCTION OR EXTENSION OF ANY FACILITIES THEREFOR, OR
ACQUIRE OR OPERATE ANY SUCH FACILITIES OR EXTENSIONS THEREOF, UNLESS
THERE IS IN FORCE WITH RESPECT TO SUCH NATURAL-GAS COMPANY A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE
COMMISSION AUTHORIZING SUCH ACTS OR OPERATIONS  ...  ."  ADDED BY THE
ACT OF FEBRUARY 7, 1942, 56 STAT. 83, 15 U.S.C. SEC 717FC). 

FN5  WHAT WE HAVE SAID, OF COURSE, DOES NOT IMPLY THAT THE COMMISSION
HAS THE POWER TO COMPEL INITIAL PURCHASES OF GAS.  WE REACH ONLY THE
QUESTION OF THE COMMISSION'S POWER UNDER SEC 7(B) TO ORDER REACTIVATION
OF ABANDONED FACILITIES AND SERVICE. 

FN6  UNITED'S APPLICATION FOR THE CERTIFICATE, DOCKETED SEPTEMBER 20,
1954, APPEARS IN FPC DOCKET NO. G-2818, UNITED GAS PIPE LINE COMPANY. 

FN7  THE COMMISSION'S COMPLETE ORDER APPEARS IN DOCKET G-2818, SUPRA,
N. 6; AN ABBREVIATED VERSION APPEARS IN 14 F.P.C. 582. 
..END :




















O'CONNOR V. OHIO 385 U.S. 92 


NO. 477.  DECIDED NOVEMBER 14, 1966.  - CERTIORARI GRANTED; 6 OHIO ST.
2D 169, 217 N.E.2D 685, REVERSED. 


PETITIONER'S FAILURE AT TRIAL AND DURING HIS FIRST APPEAL IN THE STATE
COURTS TO OBJECT TO PROSECUTOR'S COMMENT ON HIS NOT TESTIFYING IN
CRIMINAL TRIAL WHICH RESULTED IN HIS CONVICTION, REVIEW OF WHICH WAS
BEING SOUGHT IN THE COURT WHEN GRIFFIN V. CALIFORNIA, 380 U.S. 609, WAS
DECIDED, HELD NOT TO FORECLOSE PETITIONER'S RIGHT TO ATTACK AS
UNCONSTITUTIONAL THE PRACTICE OF MAKING SUCH COMMENT FOLLOWING ITS
INVALIDATION IN GRIFFIN. 

O'CONNOR V. OHIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THIS IS THE SECOND TIME PETITIONER HAS COME BEFORE THIS COURT WITH
THE CLAIM THAT THE PROSECUTOR'S COMMENT UPON HIS FAILURE TO TESTIFY
DURING HIS TRIAL FOR LARCENY VIOLATED THE CONSTITUTIONAL RIGHT TO
REMAIN SILENT.  IN O'CONNOR V. OHIO, 382 U.S. 286, WE CONSIDERED THIS
CONTENTION WHEN WE GRANTED CERTIORARI, VACATED THE CONVICTION AND
REMANDED THE CASE TO THE SUPREME COURT OF OHIO FOR FURTHER PROCEEDINGS
IN LIGHT OF OUR DECISION IN GRIFFIN V. CALIFORNIA, 380 U.S. 609. 
FOLLOWING REMAND, THE OHIO COURT BY A CLOSELY DIVIDED VOTE UPHELD
PETITIONER'S CONVICTION SOLELY ON THE GROUND THAT HE FAILED TO OBJECT
TO THE PROSCRIBED COMMENT AT HIS TRIAL AND DURING HIS FIRST APPEAL IN
THE STATE COURTS.  THAT FAILURE WAS HELD TO PRECLUDE THE OHIO APPELLATE
COURTS FROM CONSIDERING THE CLAIM THAT PETITIONER'S FEDERAL
CONSTITUTIONAL RIGHTS HAD BEEN INFRINGED. 

THE STATE DOES NOT CONTEST THE FACT THAT THE PROSECUTOR'S REMARKS
VIOLATED THE CONSTITUTIONAL RULE ANNOUNCED IN GRIFFIN.  MOREOVER, IT IS
CLEAR THE PROSPECTIVE APPLICATION OF THAT RULE, ANNOUNCED IN TEHAN V.
SHOTT, 382 U.S. 406, DOES NOT PREVENT PETITIONER FROM RELYING ON
GRIFFIN, SINCE HIS CONVICTION WAS NOT FINAL WHEN THE DECISION IN
GRIFFIN WAS RENDERED.  INDEED, IN TEHAN WE CITED OUR REMAND OF
PETITIONER'S CASE AS EVIDENCE THAT GRIFFIN APPLIED TO ALL CONVICTIONS
WHICH HAD NOT BECOME FINAL ON THE DATE OF THE GRIFFIN JUDGMENT.  382
U.S., AT 409, N. 3.  THUS, THE ONLY ISSUE NOW BEFORE US IS THE
PERMISSIBILITY OF INVOKING THE OHIO PROCEDURAL RULE TO DEFEAT
PETITIONER'S MERITORIOUS FEDERAL CLAIM. 

WE HOLD THAT IN THESE CIRCUMSTANCES THE FAILURE TO OBJECT IN THE
STATE COURTS CANNOT BAR THE PETITIONER FROM ASSERTING THIS FEDERAL
RIGHT.  RECOGNITION OF THE STATES' RELIANCE ON FORMER DECISIONS OF THIS
COURT WHICH GRIFFIN OVERRULED WAS ONE OF THE PRINCIPAL GROUNDS FOR THE
PROSPECTIVE APPLICATION OF THE RULE OF THAT CASE.  SEE TEHAN V. SHOTT,
382 U.S. 406, 417.  DEFENDANTS CAN NO MORE BE CHARGED WITH ANTICIPATING
THE GRIFFIN DECISION THAN CAN THE STATES.  PETITIONER HAD EXHAUSTED HIS
APPEALS IN THE OHIO COURTS AND WAS SEEKING DIRECT REVIEW HERE WHEN
GRIFFIN WAS HANDED DOWN.  THUS, HIS FAILURE TO OBJECT TO A PRACTICE
WHICH OHIO HAD LONG ALLOWED CANNOT STRIP HIM OF HIS RIGHT TO ATTACK THE
PRACTICE FOLLOWING ITS INVALIDATION BY THIS COURT. 

WE THEREFORE GRANT THE PETITION FOR CERTIORARI AND REVERSE THE
JUDGMENT OF THE SUPREME COURT OF OHIO.  IT IS SO ORDERED. 
..END :














U.S. V. SASKATCHEWAN MINERALS 385 U.S. 94 


NO. 525.  DECIDED NOVEMBER 14, 1966.* - 253 F. SUPP. 504, VACATED AND
REMANDED. 

*TOGETHER WITH NO. 526, GREAT NORTHERN RAILWAY CO. ET AL. V.
SASKATCHEWAN MINERALS, ALSO ON APPEAL FROM THE SAME COURT. 


DISTRICT COURT'S ORDER SETTING ASIDE ON THE MERITS ICC'S DISMISSAL OF
APPELLEE'S COMPLAINT THAT RAILROAD RATES WERE PREFERENTIAL AND ORDERING
ICC TO GRANT APPELLEE RELIEF HELD UNDULY LIMITED ICC'S DUTY TO
RECONSIDER THE ENTIRE CASE. 

UNITED STATES ET AL. V. SASKATCHEWAN MINERALS. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF WASHINGTON. 

PER CURIAM. 

THESE APPEALS ARE FROM AN AMENDED JUDGMENT OF A THREE-JUDGE DISTRICT
COURT, 253 F. SUPP.  504, WHICH SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION DISMISSING APPELLEE'S COMPLAINT, 325 I.C.C. 621,
AND REMANDED THE CASE TO THE COMMISSION "FOR FURTHER PROCEEDINGS WITH
INSTRUCTIONS TO GRANT RELIEF" TO THE APPELLEE "IN ACCORDANCE WITH THE
OPINION HERETOFORE ENTERED BY THIS COURT ON DECEMBER 8, 1965, AND THE
SUPPLEMENTAL MEMORANDUM DECISION ENTERED BY THIS COURT ON MARCH 3,
1966."  ACCEPTING THE DISTRICT COURT'S DECISION TO SET ASIDE THE
COMMISSION'S ORDER ON THE MERITS, APPELLANTS CHALLENGE THAT PORTION OF
THE JUDGMENT WHICH INSTRUCTS THE COMMISSION TO GRANT RELIEF TO THE
APPELLEE AND PRECLUDES THE COMMISSION FROM REOPENING THE PROCEEDINGS
FOR THE RECEIPT OF ADDITIONAL EVIDENCE RELEVANT TO THE QUESTION WHETHER
THE RATES CHALLENGED BY THE APPELLEE ARE IN FACT UNREASONABLY
PREFERENTIAL IN VIOLATION OF SEC 3(1) OF THE INTERSTATE COMMERCE ACT,
49 U.S.C. SEC 3(1).  WE AGREE WITH THE APPELLANTS THAT, UNDER THE
CIRCUMSTANCES PRESENT HERE, THIS RESTRICTION IS AN IMPROPER LIMITATION
ON THE COMMISSION'S DUTY TO RECONSIDER THE ENTIRE CASE.  ARROW TRANSP. 
CO. V. CINCINNATI, N.O.&T.P.R.  CO., 379 U.S. 642.  ACCORDINGLY, THE
JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASES ARE REMANDED TO
THE DISTRICT COURT WITH INSTRUCTIONS TO ENTER AN ORDER REMANDING THE
CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THE
DISTRICT COURT'S OPINION OF DECEMBER 8, 1965.  IT IS SO ORDERED. 
..END :









BOARD OF SATANTA V. PLANNING BOARD 385 U.S. 96 


NO. 560.  DECIDED NOVEMBER 14, 1966.  - 197 KAN. 321, 416 P.2D 791,
APPEAL DISMISSED. 


BOARD OF SATANTA JOINT RURAL HIGH SCHOOL, DISTRICT NO. 2, ET AL. V.
HASKELL COUNTY PLANNING BOARD ET AL. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















LITTLE V. RHAY 385 U.S. 96 


NO. 669, MISC.  DECIDED NOVEMBER 14, 1966.  - 68 WASH. 2D 353, 413 P.2D
15, APPEAL DISMISSED AND CERTIORARI DENIED. 


LITTLE V. RHAY, PENITENTIARY SUPERINTENDENT. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS SUBMITTED AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS
DENIED. 
..END :
















PUBLIC WORKS V. HORACE MANN LEAGUE 385 U.S. 97 


NO. 473.  DECIDED NOVEMBER 14, 1966.* - 242 MD. 645, 220 A.2D 51,
CERTIORARI DENIED IN NO. 473; APPEAL DISMISSED IN NO. 590. 

*TOGETHER WITH NO. 590, HORACE MANN LEAGUE OF THE UNITED STATES OF
AMERICA, INC., ET AL. V. BOARD OF PUBLIC WORKS OF MARYLAND ET AL., ON
APPEAL FROM THE SAME COURT. 


BOARD OF PUBLIC WORKS OF MARYLAND ET AL. V. HORACE MANN LEAGUE OF THE
UNITED STATES OF AMERICA, INC., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
MARYLAND. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IN NO. 473 IS DENIED.  THE
MOTION TO DISMISS IN NO. 590 IS GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT IN
NO. 473 CERTIORARI SHOULD BE GRANTED AND THE CASE SET FOR PLENARY
CONSIDERATION, AND THAT IN NO. 590 PROBABLE JURISDICTION SHOULD BE
NOTED AND THE CASE SET DOWN FOR ORAL ARGUMENT. 
..END :






HALL V. MISSISSIPPI 385 U.S. 98 


NO. 672, MISC.  DECIDED NOVEMBER 14, 1966.  - 187 SO. 2D 861, APPEAL
DISMISSED. 


HALL V. MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 

THE CHIEF JUSTICE, MR. JUSTICE HARLAN, AND MR. JUSTICE WHITE ARE OF
THE OPINION THAT THE APPEAL SHOULD BE DISMISSED FOR WANT OF
JURISDICTION. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE FORTAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :











SWITZERLAND ASSN. V. HORNE'S MARKET 385 U.S. 23 


NO. 42.  ARGUED OCTOBER 17, 1966.  - DECIDED NOVEMBER 7, 1966.  - 351
F.2D 552, AFFIRMED. 


PETITIONERS SOUGHT A PRELIMINARY AND PERMANENT INJUNCTION IN THIS
TRADEMARK INFRINGEMENT SUIT.  FOLLOWING JOINDER OF ISSUES BEFORE TRIAL,
PETITIONERS FILED A MOTION FOR SUMMARY JUDGMENT GRANTING A PERMANENT
INJUNCTION, WHICH THE DISTRICT COURT DENIED BECAUSE OF UNRESOLVED
FACTUAL ISSUES.  THE COURT OF APPEALS HELD THAT THE ORDER DENYING
SUMMARY JUDGMENT WAS NOT AN "INTERLOCUTORY" ONE UNDER 28 U.S.C. SEC
1292(A)(1), WHICH PROVIDES FOR AN APPEAL FROM AN INTERLOCUTORY ORDER
"REFUSING" AN INJUNCTION, AND DISMISSED THE APPEAL.  HELD:  SINCE THE
DENIAL OF THE MOTION FOR SUMMARY JUDGMENT RELATED ONLY TO PRETRIAL
PROCEDURES AND NOT TO THE MERITS, IT WAS NOT "INTERLOCUTORY" AND
THEREFORE NOT APPEALABLE UNDER SEC 1292(A)(1). 

SWITZERLAND CHEESE ASSOCIATION, INC., ET AL. V. E. HORNE'S MARKET, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS BROUGHT THIS SUIT FOR TRADEMARK INFRINGEMENT AND UNFAIR
COMPETITION UNDER THE TRADEMARK LAWS.  60 STAT. 427, 15 U.S.C. SEC 1051
ET SEQ. THEY SOUGHT A PRELIMINARY INJUNCTION DURING THE PENDENCY OF THE
ACTION, A PERMANENT INJUNCTION, AND DAMAGES.  AFTER ISSUE WAS JOINED,
PETITIONERS MOVED FOR A SUMMARY JUDGMENT GRANTING A PERMANENT
INJUNCTION AND AWARDING DAMAGES AGAINST RESPONDENT.  THE DISTRICT COURT
COULD NOT SAY THAT THERE WAS "NO GENUINE ISSUE AS TO ANY MATERIAL FACT"
WITHIN THE MEANING OF RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE
WHICH GOVERNS SUMMARY JUDGMENTS AND ACCORDINGLY DENIED THE MOTION. 
PETITIONERS APPEALED, CLAIMING THAT ORDER TO BE AN "INTERLOCUTORY" ONE
"REFUSING" AN INJUNCTION WITHIN THE MEANING OF SEC 1292(A)(1) OF THE
JUDICIAL CODE, 28 U.S.C. SEC 1292(A)(1).  (FN1) 

THE COURT OF APPEALS HELD THAT THE ORDER DENYING THE MOTION FOR A
SUMMARY JUDGMENT WAS NOT AN "INTERLOCUTORY" ONE WITHIN THE MEANING OF
SEC 1292(A)(1) AND DISMISSED THE APPEAL FOR WANT OF JURISDICTION.  351
F.2D 552.  WE GRANTED CERTIORARI BECAUSE OF A CONFLICT BETWEEN THAT
DECISION AND THOSE FROM THE SECOND CIRCUIT.  SEE, E.G., FEDERAL GLASS
CO. V. LOSHIN, 217 F.2D 936.  (FN2) 

UNLIKE SOME STATE PROCEDURES, FEDERAL LAW EXPRESSES THE POLICY
AGAINST PIECEMEAL APPEALS.  SEE BALTIMORE CONTRACTORS, INC. V.
BODINGER, 348 U.S. 176.  HENCE WE APPROACH THIS STATUTE SOMEWHAT
GINGERLY LEST A FLOODGATE BE OPENED THAT BRINGS INTO THE EXCEPTION MANY
PRETRIAL ORDERS.  IT IS EARNESTLY ARGUED, HOWEVER, THAT, ALTHOUGH THIS
ORDER DENIED A PERMANENT INJUNCTION, IT WAS NONETHELESS "INTERLOCUTORY"
WITHIN THE MEANING OF SEC 1292(A)(1) BECAUSE THE MOTION FOR SUMMARY
JUDGMENT DID SERVICE FOR A MOTION FOR A PRELIMINARY INJUNCTION (SEE
FEDERAL GLASS CO. V. LOSHIN, SUPRA, AT 938) AND THAT THEREFORE
"INTERLOCUTORY" MUST ALSO INCLUDE A DENIAL OF A PERMANENT INJUNCTION. 

WE TAKE THE OTHER VIEW NOT BECAUSE "INTERLOCUTORY" OR PRELIMINARY MAY
NOT AT TIMES EMBRACE DENIALS OF PERMANENT INJUNCTIONS, BUT FOR THE
REASON THAT THE DENIAL OF A MOTION FOR A SUMMARY JUDGMENT BECAUSE OF
UNRESOLVED ISSUES OF FACT DOES NOT SETTLE OR EVEN TENTATIVELY DECIDE
ANYTHING ABOUT THE MERITS OF THE CLAIM.  IT IS STRICTLY A PRETRIAL
ORDER THAT DECIDES ONLY ONE THING - THAT THE CASE SHOULD GO TO TRIAL. 
ORDERS THAT IN NO WAY TOUCH ON THE MERITS OF THE CLAIM BUT ONLY RELATE
TO PRETRIAL PROCEDURES ARE NOT IN OUR VIEW "INTERLOCUTORY" WITHIN THE
MEANING OF SEC 1292(A)(1).  WE SEE NO OTHER WAY TO PROTECT THE
INTEGRITY OF THE CONGRESSIONAL POLICY AGAINST PIECEMEAL APPEALS.  (FN3)
AFFIRMED. 

FN1  THAT SECTION PROVIDES: 

"(A)  THE COURTS OF APPEALS SHALL HAVE JURISDICTION OF APPEALS FROM: 

"(1)  INTERLOCUTORY ORDERS OF THE DISTRICT COURTS OF THE UNITED
STATES  ...  OR OF THE JUDGES THEREOF, GRANTING, CONTINUING, MODIFYING,
REFUSING OR DISSOLVING INJUNCTIONS, OR REFUSING TO DISSOLVE OR MODIFY
INJUNCTIONS, EXCEPT WHERE A DIRECT REVIEW MAY BE HAD IN THE SUPREME
COURT." 

FN2  SUBSEQUENT TO THE GRANT OF CERTIORARI IN THIS CASE, THE SECOND
CIRCUIT, EN BANC, REVERSED ITS POSITION AND HELD THAT SUCH AN ORDER IS
NOT APPEALABLE.  CHAPPELL & CO., INC. V. FRANKEL, 367 F.2D 197. 

FN3  AS JUDGE CHARLES E. CLARK SAID, IN DISSENT, IN PETER PAN
FABRICS, INC. V. DIXON TEXTILE CORP., 280 F.2D 800, AT 805-806: 

"A DISTRICT JUDGE'S ORDERS ADVANCING A CASE TO TRIAL OUGHT NOT TO BE
CRITICALLY EXAMINED AND RE-EXAMINED BY THE CUMBERSOME METHOD OF APPEAL
BEFORE HE HAS APPROACHED THE STAGE OF ADJUDICATION ...  .  I BELIEVE
THIS AN INTOLERABLE BURDEN FOR US, AN IMPROPER AND UNCERTAIN
INTERFERENCE WITH TRIAL COURT DISCRETION, AND A CONFUSING INVITATION TO
INDISCRIMINATE APPEALS IN THE FUTURE - ALL CONTRARY TO SETTLED FEDERAL
LAW AGAINST PIECEMEAL APPEALS." 

MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT BELOW ON THE BASIS OF
THE REASONING SET FORTH IN JUDGE WATERMAN'S OPINION FOR THE SECOND
CIRCUIT IN CHAPPELL & CO., INC. V. FRANKEL, 367 F.2D 197. 

MR. JUSTICE STEWART CONCURS IN THE RESULT. 
..END :




















BLACK V. UNITED STATES 385 U.S. 26 


NO. 1029, OCTOBER TERM, 1965.  CERTIORARI DENIED MAY 2, 1966.  -
REHEARING AND CERTIORARI GRANTED AND CASE DECIDED NOVEMBER 7, 1966.  -
REHEARING AND CERTIORARI GRANTED; 122 U.S. APP. D.C. 347, 353 F.2D 885,
VACATED AND REMANDED. 


AFTER DENIAL OF CERTIORARI IN THIS CASE, THE SOLICITOR GENERAL
VOLUNTARILY ADVISED THAT, IN CONNECTION WITH ANOTHER MATTER, MONITORING
PETITIONER'S ROOM DISCLOSED CONVERSATIONS BETWEEN PETITIONER AND HIS
ATTORNEY AT THE TIME THIS CASE WAS BEING PRESENTED TO THE GRAND JURY. 
NOTES AND REPORTS MADE THEREFROM WERE FORWARDED LATER TO TAX DIVISION
ATTORNEYS FOR USE IN PREPARATION FOR TRIAL IN THE CASE.  THE SOLICITOR
GENERAL ALSO ADVISED THAT THESE ATTORNEYS DID NOT REGARD THE MATERIAL
AS RELEVANT AND DID NOT KNOW IT INCLUDED ATTORNEY-CLIENT CONVERSATIONS
AND SUGGESTED THAT THE JUDGMENT BE VACATED AND REMANDED TO THE DISTRICT
COURT FOR A HEARING AT WHICH THE MATERIAL WOULD BE PRODUCED AND THE
COURT COULD DETERMINE WHETHER THE CONVICTION SHOULD STAND.  IN VIEW OF
THE REPORT OF THE SOLICITOR GENERAL AND IN ORDER TO MAKE CERTAIN THAT
PETITIONER BE ACCORDED A TRIAL FREE FROM ANY INADMISSIBLE EVIDENCE,
HELD:  THE JUDGMENT SHOULD BE VACATED AND THE CASE REMANDED FOR A NEW
TRIAL. 

BLACK V. UNITED STATES. 

ON PETITION FOR REHEARING. 

PER CURIAM. 

IN DAVIS V. UNITED STATES, POST, P. 927, WE TODAY DENIED THE PETITION
FOR CERTIORARI.  THE SOLE QUESTION RAISED THERE (BUT NOT PASSED UPON BY
THE COURT OF APPEALS BECAUSE NOT NECESSARY TO ITS DISPOSITION) INVOLVED
PETITIONERS' CLAIM THAT CONFERENCES BETWEEN PETITIONERS AND THEIR
COUNSEL WERE SURREPTITIOUSLY OVERHEARD AND INTERCEPTED BY LAW
ENFORCEMENT OFFICIALS THROUGH CONCEALED MONITORIAL DEVICES BUILT INTO
THE JAIL WHERE PETITIONERS WERE BEING HELD FOR FEDERAL AUTHORITIES. 
THE SOLICITOR GENERAL DID NOT DENY THE EXISTENCE OF THE DEVICES BUT
SAID THAT THERE WERE NO RECORDINGS OF THE CONVERSATIONS IN QUESTION. 
HE POINTED OUT THAT SINCE THE CASE HAS BEEN REMANDED BY THE COURT OF
APPEALS FOR A NEW TRIAL ON OTHER GROUNDS, A FULL EXPLORATION OF THIS
QUESTION COULD BE MADE ON RETRIAL.  IN THE LIGHT OF THESE
REPRESENTATIONS WE DENIED THE PETITION FOR CERTIORARI SO THAT THE
QUESTION MIGHT BE FULLY EXPLORED AT THE NEW TRIAL, AS SUGGESTED BY THE
SOLICITOR GENERAL. 

IN THE INSTANT CASE, BLACK V. UNITED STATES, THE PETITION FOR
REHEARING NOW RAISES A SIMILAR QUESTION AND WHILE DAVIS V. UNITED
STATES, SUPRA, IS NOT CONTROLLING, ITS RELATION IS OBVIOUS.  IN BLACK
THE SOLICITOR GENERAL ADVISED THE COURT VOLUNTARILY ON MAY 24, 1966,
AFTER THE PETITION FOR CERTIORARI HAD BEEN DENIED, 384 U.S. 927, BUT
BEFORE AN APPLICATION FOR REHEARING HAD BEEN FILED, THAT AGENTS OF THE
FEDERAL BUREAU OF INVESTIGATION, IN A MATTER UNRELATED TO THIS CASE, ON
FEBRUARY 7, 1963, INSTALLED A LISTENING DEVICE IN PETITIONER'S HOTEL
SUITE IN WASHINGTON, D.C.  THE DEVICE MONITORED AND TAPED CONVERSATIONS
HELD IN THE HOTEL SUITE DURING THE PERIOD THE OFFENSE WAS BEING
INVESTIGATED AND BEGINNING SOME TWO MONTHS BEFORE AND CONTINUING UNTIL
ABOUT ONE MONTH AFTER THE EVIDENCE IN THIS CASE WAS PRESENTED TO THE
GRAND JURY.  DURING THAT PERIOD, "THE MONITORING AGENTS," THE SOLICITOR
GENERAL ADVISED, "OVERHEARD, AMONG OTHER CONVERSATIONS, EXCHANGES
BETWEEN PETITIONER AND THE ATTORNEY WHO WAS THEN REPRESENTING HIM
(BLACK)" IN THIS CASE.  IN A SUPPLEMENTAL MEMORANDUM FILED JULY 13,
1966, THE SOLICITOR GENERAL, IN RESPONSE TO AN INQUIRY BY THE COURT,
STATED THAT THE RECORDINGS OF SUCH INTERCEPTIONS HAD BEEN ERASED FROM
THE TAPES BUT THAT NOTES SUMMARIZING AND SOMETIMES QUOTING THE
CONVERSATIONS INTERCEPTED WERE AVAILABLE, AND THAT REPORTS AND
MEMORANDA CONCERNING THE SAME HAD BEEN MADE.  "NEITHER THE REPORTS NOR
THE MEMORANDA," HE REPORTED, "WERE SEEN BY ATTORNEYS OF THE TAX
DIVISION RESPONSIBLE FOR THE PROSECUTION OF" THIS CASE UNTIL JANUARY
1964, WHEN IN PREPARING FOR TRIAL THEY WERE INCLUDED IN MATERIAL
TRANSMITTED TO THEM; THE REPORTS AND MEMORANDA OF THE INTERCEPTED
CONVERSATIONS WERE EXAMINED BY THE TAX DIVISION ATTORNEYS AND RETAINED
BY THEM UNTIL APRIL 15, 1964, WHEN PETITIONER'S TRIAL BEGAN; AND THE
ATTORNEYS NEVER REALIZED UNTIL APRIL 21, 1966, THAT ANY CONVERSATIONS
BETWEEN BLACK AND HIS ATTORNEY HAD BEEN OVERHEARD AND INCLUDED IN THE
TRANSCRIPTIONS. 

THE SOLICITOR GENERAL ADVISED FURTHER THAT THE "TAX DIVISION
ATTORNEYS FOUND NOTHING IN THE F.B.I. REPORTS OR MEMORANDA WHICH THEY
CONSIDERED RELEVANT TO THE TAX EVASION CASE."  HE SUGGESTS THAT THE
JUDGMENT BE VACATED AND REMANDED TO THE DISTRICT COURT IN WHICH THE
"RELEVANT MATERIALS WOULD BE PRODUCED AND THE COURT WOULD DETERMINE,
UPON AN ADVERSARY HEARING, WHETHER PETITIONER'S CONVICTION SHOULD
STAND."  WE HAVE SOMETIMES USED THIS TECHNIQUE IN FEDERAL CRIMINAL
CASES, UNITED STATES V. SHOTWELL MFG. CO., 355 U.S. 233.  HOWEVER, ITS
USE HAS NEVER BEEN AUTOMATIC.  INDEED, IN REMMER V. UNITED STATES, 347
U.S. 227, WE FOUND IT NECESSARY, DESPITE THE HEARING IN THE DISTRICT
COURT, TO SUBSEQUENTLY ORDER A NEW TRIAL ON THE MERITS, 350 U.S. 377. 
THERE ARE OTHER COMPLICATING FACTORS HERE THAT WERE NOT PRESENT IN
REMMER.  THERE THE JUDGE HAD BEEN INFORMED OF THE ALLEGED JURY
TAMPERING, BUT HERE NEITHER THE JUDGE, THE PETITIONER NOR HIS COUNSEL
KNEW OF THE ACTION OF THE FEDERAL AGENTS.  MOREOVER, THE SOLICITOR
GENERAL ADVISES THAT THE TAX DIVISION ATTORNEYS DID NOT KNOW AT THE
TIME OF THE TRIAL THAT CONVERSATIONS BETWEEN BLACK AND HIS ATTORNEY
WERE INCLUDED IN THE TRANSCRIPTIONS.  IN VIEW OF THESE FACTS IT APPEARS
THAT JUSTICE REQUIRES THAT A NEW TRIAL BE HELD SO AS TO AFFORD THE
PETITIONER AN OPPORTUNITY TO PROTECT HIMSELF FROM THE USE OF EVIDENCE
THAT MIGHT BE OTHERWISE INADMISSIBLE. 

THIS COURT HAS NEVER BEEN DISPOSED TO VACATE CONVICTIONS WITHOUT
ADEQUATE JUSTIFICATION, BUT UNDER THE CIRCUMSTANCES PRESENTED BY THE
SOLICITOR GENERAL IN THIS CASE WE BELIEVE THAT A NEW TRIAL MUST BE
HELD.  THIS WILL GIVE THE PARTIES AN OPPORTUNITY TO PRESENT THE
RELEVANT EVIDENCE AND PERMIT THE TRIAL JUDGE TO DECIDE THE QUESTIONS
INVOLVED.  IT WILL ALSO PERMIT THE REMOVAL OF ANY DOUBT AS TO BLACK'S
RECEIVING A FAIR TRIAL WITH FULL CONSIDERATION BEING GIVEN TO THE NEW
EVIDENCE REPORTED TO US BY THE SOLICITOR GENERAL. 

THE PETITION FOR REHEARING IS THEREFORE GRANTED, THE ORDER DENYING
CERTIORARI VACATED, CERTIORARI GRANTED, THE JUDGMENT OF THE COURT OF
APPEALS VACATED AND THE CAUSE REMANDED TO THE DISTRICT COURT FOR A NEW
TRIAL. 

MR. JUSTICE WHITE AND MR. JUSTICE FORTAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THE DENIAL OF CERTIORARI IN NO. 245, DAVIS V. UNITED STATES - WHERE
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS ALREADY ORDERED A NEW
TRIAL ON GROUNDS WHOLLY UNRELATED TO ALLEGED EAVESDROPPING AND AT WHICH
TRIAL PETITIONERS WILL HAVE A FULL OPPORTUNITY TO EXPLORE THEIR
CONTENTIONS THAT THE GOVERNMENT INTERFERED WITH THEIR CONSTITUTIONALLY
PROTECTED RIGHT TO COUNSEL - BEARS NO SOLID RELATION TO, STILL LESS
FURNISHES JUSTIFICATION FOR, WHAT THE COURT HAS DONE IN THE PRESENT
CASE.  A BRIEF STATEMENT OF THE CIRCUMSTANCES OF THE BLACK DISPOSITION
WILL REVEAL THAT IN SUMMARILY VACATING THIS FINAL CONVICTION AND
ORDERING A COMPLETELY NEW TRIAL THE COURT HAS ACTED PREMATURELY. 

IN 1964, PETITIONER BLACK WAS CONVICTED IN THE DISTRICT COURT OF
FEDERAL INCOME TAX VIOLATIONS.  HIS CONVICTION WAS AFFIRMED BY THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ON NOVEMBER 10,
1965.  122 U.S. APP. D.C. 347, 353 F.2D 885.  CERTIORARI WAS DENIED BY
THIS COURT ON MAY 2, 1966.  384 U.S. 927.  BEFORE BLACK'S PETITION FOR
REHEARING WAS FILED HERE, THE SOLICITOR GENERAL FILED A MEMORANDUM
BRINGING TO THE COURT'S ATTENTION THE FACT THAT IN THE COURSE OF AN
UNRELATED CRIMINAL INVESTIGATION BLACK'S HOTEL SUITE HAD BEEN "BUGGED"
BY THE FEDERAL BUREAU OF INVESTIGATION AND CONVERSATIONS BETWEEN BLACK
AND HIS ATTORNEY ELECTRONICALLY RECORDED.  THE SOLICITOR GENERAL
FURTHER STATED THAT IN CONSEQUENCE OF AN INVESTIGATION, INSTITUTED BY
HIM FOLLOWING HIS DISCOVERY OF THIS OCCURRENCE, HE WAS ABLE TO
REPRESENT TO THE COURT THAT NONE OF THE INFORMATION SO PROCURED HAD
BEEN UTILIZED IN BLACK'S AFORESAID PROSECUTION.  IN A FURTHER
MEMORANDUM, FILED IN COMPLIANCE WITH A REQUEST FROM THIS COURT, THE
SOLICITOR GENERAL HAS REPRESENTED THAT IT WAS NOT UNTIL LATE AUGUST
1965 THAT THE CRIMINAL DIVISION OF THE DEPARTMENT OF JUSTICE LEARNED
THAT A LISTENING DEVICE HAD BEEN INSTALLED IN BLACK'S HOTEL SUITE AND
NOT UNTIL APRIL 21, 1966, THAT ATTORNEYS IN THE TAX DIVISION,
RESPONSIBLE FOR THE PROSECUTION, LEARNED THAT ANY CONVERSATIONS BETWEEN
BLACK AND HIS COUNSEL HAD BEEN OVERHEARD. 

THE SOLICITOR GENERAL RECOGNIZES THAT BLACK IS ENTITLED TO A FULL
EXPLORATION OF THE MATTER, AND TO THAT END SUGGESTS THAT THE CASE BE
REMANDED TO THE DISTRICT COURT FOR A HEARING AND FINDINGS ON THE
EPISODE IN QUESTION AS IT MAY BEAR ON THE VALIDITY OF BLACK'S
CONVICTION.  BLACK RESPONDS THAT THIS COURSE IS INADEQUATE AND CONTENDS
THAT THIS COURT SHOULD, WITHOUT MORE, FORTHWITH ORDER DISMISSAL OF THE
INDICTMENT IN THIS INCOME TAX PROSECUTION. 

WITHOUT ANYTHING MORE BEFORE IT THAN THE REPRESENTATIONS MADE BY BOTH
SIDES, THE COURT TODAY ORDERS A TOTALLY NEW TRIAL IN SPITE OF THE FACT
THAT THE DISCLOSURES COMMENDABLY MADE BY THE SOLICITOR GENERAL REVEAL
NO USE OF "BUGGED" MATERIAL IN BLACK'S PROSECUTION, AND NO KNOWLEDGE BY
PROSECUTING ATTORNEYS THAT MATERIAL MAY HAVE BEEN IMPROPERLY OBTAINED. 
I AGREE, OF COURSE, THAT PETITIONER IS ENTITLED TO A FULL-SCALE
DEVELOPMENT OF THE FACTS, BUT I CAN SEE NO VALID REASON WHY THIS
UNIMPEACHED CONVICTION SHOULD BE VACATED AT THIS STAGE.  IN DAVIS,
SUPRA, EXPLORATION OF THE ALLEGED EAVESDROPPING EPISODE IS APPROPRIATE
UPON THE RETRIAL OF THE CASE SINCE THE ORIGINAL CONVICTION HAS ALREADY
FALLEN ON OTHER GROUNDS.  IN THE BLACK CASE, HOWEVER, A NEW TRIAL IS
NOT AN APPROPRIATE VEHICLE FOR SORTING OUT THE EAVESDROPPING ISSUE
BECAUSE UNTIL IT IS DETERMINED THAT SUCH OCCURRENCE VITIATED THE
ORIGINAL CONVICTION NO BASIS FOR A RETRIAL EXISTS.  THE COURT'S ACTION
PUTS THE CART BEFORE THE HORSE.  THE ORDERLY PROCEDURE IS TO REMAND THE
CASE TO THE DISTRICT COURT FOR A HEARING AND FINDINGS ON THE ISSUES IN
QUESTION.  SEE UNITED STATES V. SHOTWELL MFG. CO., 355 U.S. 233.  SEE
ALSO REMMER V. UNITED STATES, 347 U.S. 227, 350 U.S. 377.  UNLESS AND
UNTIL THE FACTS ON THIS ISSUE HAVE BEEN RESOLVED AND THEIR LEGAL EFFECT
ASSESSED FAVORABLY TO PETITIONER, THIS CONVICTION SHOULD REMAIN
UNDISTURBED. 

THE ONLY BASIS I CAN THINK OF FOR JUSTIFYING THIS DECISION IS THAT
ANY GOVERNMENTAL ACTIVITY OF THE KIND HERE IN QUESTION AUTOMATICALLY
VITIATES, SO AS AT LEAST TO REQUIRE A NEW TRIAL, ANY CONVICTION
OCCURRING DURING THE SPAN OF SUCH ACTIVITY.  BUT I CANNOT BELIEVE THAT
THE COURT, WITHOUT EVEN BRIEFING OR ARGUMENT, INTENDS TO MAKE ANY SUCH
SWEEPING INNOVATION IN THE FEDERAL CRIMINAL LAW BY TODAY'S PEREMPTORY
DISPOSITION OF THIS CASE. 
..END :


















PITTSBURGH TOWING V. BARGE LINE 385 U.S. 32 


NO. 319.  DECIDED NOVEMBER 7, 1966.  - 252 F. SUPP. 162, APPEAL
DISMISSED. 


COURT'S EXERCISE OF DISCRETION HELD NOT WARRANTED TO OVERLOOK 22-DAY
DELAY BEYOND TIME FIXED BY ITS RULE 13(1) FOR DOCKETING OF APPEALS,
WHERE SUCH DELAY WAS INADEQUATELY ACCOUNTED FOR. 

PITTSBURGH TOWING CO. V. MISSISSIPPI VALLEY BARGE LINE CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED FOR FAILURE OF APPELLANT TO COMPLY
WITH THE TIME REQUIREMENT OF RULE 13(1) OF THE RULES OF THIS COURT IN
DOCKETING ITS APPEAL.  THIS APPEAL WAS DOCKETED 22 DAYS AFTER
EXPIRATION OF THE 60-DAY PERIOD PROVIDED BY THE RULE.  DURING THAT
PERIOD, APPELLANT MADE NO APPLICATION FOR AN ENLARGEMENT OF TIME,
EITHER TO THE DISTRICT COURT OR TO A JUSTICE OF THIS COURT (SEE RULE
13(1)), NOR DID ANY EXPLANATION ACCOMPANY THE UNTIMELY DOCKETING OF THE
APPEAL.  THE JURISDICTIONAL STATEMENT ITSELF IS SILENT ON THE SUBJECT. 
NOT UNTIL APPELLEE MOVED TO DISMISS PURSUANT TO RULE 14(2) DID
APPELLANT COMMENT UPON ITS DEFAULT.  ITS REPLY TO THE MOTION TO DISMISS
STATES THAT THE "DELAY WAS OCCASIONED BY A MISUNDERSTANDING BETWEEN
COUNSEL FOR APPELLANT."  IT DOES NOT ELABORATE. 

THIS COURT HAS BEEN GENEROUS IN EXCUSING ERRORS OF COUNSEL, BUT IF
THERE ARE TO BE RULES, THERE MUST BE SOME LIMIT TO OUR WILLINGNESS TO
OVERLOOK THEIR VIOLATION.  WHILE WE ARE INCLINED TO BE GENEROUS IN
EXERCISING OUR DISCRETION TO FORGIVE A MISTAKE AND WAIVE THE
CONSEQUENCES OF NEGLIGENCE, FAIRNESS TO OTHER COUNSEL AND TO PARTIES
WITH BUSINESS BEFORE THE COURT AS WELL AS DUE REGARD FOR OUR OWN
PROCEDURES LEADS US TO BELIEVE THAT THIS CASE DOES NOT WARRANT OUR
INDULGENCE. 

MR. JUSTICE BLACK, DISSENTING. 

DUE TO A MISUNDERSTANDING AMONG APPELLANT'S LAWYERS THIS CASE WAS NOT
DOCKETED NOR WAS THE RECORD FILED UNTIL 22 DAYS AFTER THE 60-DAY PERIOD
PRESCRIBED BY THIS COURT'S RULE 13(1).  THE COURT NOW, QUITE CONTRARY
TO ITS RECENT PRACTICES, DISMISSES THE CASE PURSUANT TO RULE 14(2)
BECAUSE OF THIS ERROR OF APPELLANT'S LAWYERS.  RULE 14(2) PERMITS, BUT
DOES NOT REQUIRE, SUCH A HARSH COURT ORDER TO BE MADE.  APPELLANT'S
COUNSEL, UPON REPORTING THE MISUNDERSTANDING TO A MEMBER OF THIS COURT,
COULD UNQUESTIONABLY HAVE OBTAINED AN ENLARGEMENT OF THE TIME TO DOCKET
THE CASE EXTENDING EVEN BEYOND THE 22 DAYS WITHIN WHICH THE RECORD WAS
ACTUALLY FILED.  THERE IS NO INDICATION WHATEVER THAT THE APPELLEES,
THEIR COUNSEL OR OTHER PARTIES WITH BUSINESS BEFORE THIS COURT HAVE
BEEN INJURED - AS THE COURT SEEMS TO INTIMATE WITHOUT RECORD SUPPORT -
BY THIS SLIGHT FORMALISTIC DELINQUENCY.  ON THE CONTRARY, THE APPELLANT
IS DENIED REVIEW OF A JUDGMENT SETTING ASIDE AN INTERSTATE COMMERCE
COMMISSION ORDER, A TYPE OF THREE-JUDGE DISTRICT COURT JUDGMENT FROM
WHICH CONGRESS HAS SEEN FIT TO GIVE AGGRIEVED PERSONS A DIRECT APPEAL
TO THIS COURT.  THUS, FOR A MERE PAPER-FILING NEGLIGENCE OF APPELLANT'S
COUNSEL, THE PURPOSE OF CONGRESS TO GRANT REVIEWS OF THIS SPECIAL
CATEGORY OF ADMINISTRATIVE ORDERS IS FRUSTRATED. 

THIS CASE IS NOW TO TAKE ITS PLACE AMONG A GROWING NUMBER OF OTHERS
WHERE MERE PROCEDURAL RULES HAVE BEEN USED TO PREVENT THE CONSIDERATION
AND DETERMINATION OF CASES ON THEIR MERITS.  SEE, E.G., LORD V.
HELMANDOLLAR, 121 U.S. APP. D.C. 168, 348 F.2D 780, CERT. DENIED, 383
U.S. 928, BLACK, J., DISSENTING; RIESS V. MURCHISON, CERT. DENIED, 383
U.S. 946, BLACK, J., DISSENTING; LINK V. WABASH R. CO., 370 U.S. 626,
636, BLACK, J., JOINED BY THE CHIEF JUSTICE, DISSENTING; BEAUFORT
CONCRETE CO. V. ATLANTIC STATES CONSTR.  CO., 384 U.S. 1004, BLACK, J.,
DISSENTING; SANTANA V. UNITED STATES, POST, P. 848, BLACK, J.,
DISSENTING.  I FIND IT INCONSISTENT WITH A FAIR SYSTEM OF JUSTICE TO
THROW OUT A LITIGANT'S CASE BECAUSE HIS LAWYER, DUE TO NEGLIGENCE, OR
MISUNDERSTANDING, OR SOME OTHER REASON FAILS TO SATISFY ONE OF MANY
PROCEDURAL TIME LIMITS.  IF A POUND OF FLESH IS REQUIRED BECAUSE OF
NEGLIGENCE OF A LAWYER, WHY NOT IMPOSE THE PENALTY ON HIM AND NOT HIS
INNOCENT CLIENT? 

AS I HAVE PREVIOUSLY STATED, "THE FILING OF COURT PAPERS ON TIME IS,
OF COURSE, IMPORTANT IN OUR COURT SYSTEM.  BUT LAWSUITS ARE NOT
CONDUCTED TO REWARD THE LITIGANT WHOSE LAWYER IS MOST DILIGENT OR TO
PUNISH THE LITIGANT WHOSE LAWYER IS CARELESS.  PROCEDURAL PAPER
REQUIREMENTS SHOULD NEVER STAND AS A SERIES OF DANGEROUS HAZARDS TO THE
ACHIEVEMENT OF JUSTICE THROUGH A FAIR TRIAL ON THE MERITS."  BEAUFORT
CONCRETE CO., SUPRA, AT 1006, BLACK, J., DISSENTING.  THE CONFLICT
BETWEEN THE INTEREST OF THE COURT CLERK IN THE TIMELY FILING OF PAPERS
AND THE INTEREST OF THE CITIZEN IN HAVING HIS LAWSUIT TRIED SHOULD BE
RESOLVED IN FAVOR OF THE CITIZEN, NOT THE COURT CLERK.  I WOULD NOT
DISMISS THIS CASE FOR VIOLATION OF RULE 13(1). 
..END :








KELSEY V. CORBETT 385 U.S. 35 


NO. 475.  DECIDED NOVEMBER 7, 1966.  - 396 S.W.2D 440, APPEAL
DISMISSED. 


KELSEY ET AL. V. CORBETT ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, EIGHTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CARR V. ALTUS 385 U.S. 35 


NO. 481.  DECIDED NOVEMBER 7, 1966.  - 255 F. SUPP. 828, AFFIRMED. 


CARR V. CITY OF ALTUS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















MASSEY V. GEORGIA 385 U.S. 36 


NO. 630, MISC.  DECIDED NOVEMBER 7, 1966.  - 222 GA. 143, 149 S.E.2D
118, APPEAL DISMISSED AND CERTIORARI DENIED. 


MASSEY V. GEORGIA. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MATRANGA V. MCDONNELL 385 U.S. 36 


NO. 686, MISC.  DECIDED NOVEMBER 7, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MATRANGA V. MCDONNELL, SHERIFF. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SCHLITZ V. UNITED STATES 385 U.S. 37 


NO. 486.  DECIDED NOVEMBER 7, 1966.  - 253 F. SUPP. 129, AFFIRMED. 


JOS.  SCHLITZ BREWING CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION OF PHILIP A. RAY ET AL., FOR LEAVE TO FILE A BRIEF, AS
AMICI CURIAE, IS GRANTED. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND WOULD SET THE CASE FOR ARGUMENT. 
..END :












TRANSIT UNION V. UNITED STATES 385 U.S. 38 


NO. 496.  DECIDED NOVEMBER 7, 1966.* - 253 F. SUPP. 481, AFFIRMED. 

*TOGETHER WITH NO. 497, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA ET AL. V. UNITED STATES
ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


AMALGAMATED TRANSIT UNION, AFL-CIO V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :














ATLANTIC V. BROTHERHOOD 385 U.S. 20 


NO. 220.  ARGUED OCTOBER 10, 1966.  - DECIDED OCTOBER 24, 1966.  - 362
F.2D 649, AFFIRMED. 


ATLANTIC COAST LINE RAILROAD CO. ET AL. V. BROTHERHOOD OF RAILWAY
TRAINMEN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













GILES V. FRIENDLY 385 U.S. 21 


NO. 426.  DECIDED OCTOBER 24, 1966.  - 185 SO. 2D 659, 664, APPEAL
DISMISSED AND CERTIORARI DENIED. 


GILES ET AL. V. FRIENDLY FINANCE CO. OF BILOXI, INC., ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED
FOR WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















JOHNSON V. CALIFORNIA 385 U.S. 21 


NO. 88, MISC.  DECIDED OCTOBER 24, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


JOHNSON V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















COLORADO-UTE V. POWER CO. 385 U.S. 22 


NO. 437.  DECIDED OCTOBER 24, 1966.  - 159 COLO. 262, 411 P.2D 785,
APPEAL DISMISSED AND CERTIORARI DENIED. 


COLORADO-UTE ELECTRIC ASSOCIATION, INC. V. WESTERN COLORADO POWER CO. ET
AL. 

APPEAL FROM THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















BRADFORD V. GAVAGAN 385 U.S. 22 


NO. 574, MISC.  DECIDED OCTOBER 24, 1966.  - APPEAL DISMISSED. 


BRADFORD V. GAVAGAN, JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW
YORK, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















KEMP V. HULTS 385 U.S. 17 


NO. 125.  DECIDED OCTOBER 17, 1966.  - 17 N.Y.2D 191, 216 N.E.2D 592,
APPEAL DISMISSED AND CERTIORARI DENIED. 


KEMP V. HULTS, COMMISSIONER OF BUREAU OF MOTOR VEHICLES. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PHELPER V. DECKER 385 U.S. 18 


NO. 374.  DECIDED OCTOBER 17, 1966.  - CERTIORARI GRANTED; ORDER
REVERSED. 


PHELPER V. DECKER, SHERIFF. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE ORDER OF MAY
5, 1966, DENYING THE MOTION FOR A CERTIFICATE OF PROBABLE CAUSE IS
REVERSED. 

MR. JUSTICE STEWART CONCURS FOR THE REASONS STATED IN HIS SEPARATE
MEMORANDUM IN MAPP V. OHIO, 367 U.S. 643, 672. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT
AND WOULD DENY THE PETITION FOR A WRIT OF CERTIORARI. 
..END :









MCGILL V. RYALS 385 U.S. 19 


NO. 381, MISC.  DECIDED OCTOBER 17, 1966.  - 253 F. SUPP. 374, APPEAL
DISMISSED. 


MCGILL ET AL. V. RYALS, SHERIFF, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF ALABAMA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION BECAUSE THE CASE WAS
NOT APPROPRIATE FOR A THREE-JUDGE COURT. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT A THREE-JUDGE COURT WAS
PROPERLY CONVENED AND WOULD AFFIRM THE JUDGMENT OF THE LOWER COURT. 
..END :













SENFOUR V. KING 385 U.S. 1 


NO. 93.  DECIDED OCTOBER 10, 1966.  - 66 WASH. 2D 644, 404 P.2D 760,
APPEAL DISMISSED AND CERTIORARI DENIED. 


SENFOUR INVESTMENT CO., INC. V. KING COUNTY. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















JONES V. ASSOCIATION OF THE BAR 385 U.S. 2 


NO. 102.  DECIDED OCTOBER 10, 1966.  - 16 N.Y.2D 829, 210 N.E.2D 461,
APPEAL DISMISSED AND CERTIORARI DENIED. 


JONES V. ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MORRIS PARK V. BUCK 385 U.S. 2 


NO. 113.  DECIDED OCTOBER 10, 1966.  - 153 CONN. 290, 216 A.2D 187,
APPEAL DISMISSED. 


MORRIS PARK, INC. V. BUCK. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :














B.&O. RAILROAD V. UNITED STATES 385 U.S. 3 


NO. 104.  DECIDED OCTOBER 10, 1966.  - 249 F. SUPP. 712, AFFIRMED. 


BALTIMORE & OHIO RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















BUCHANAN V. RHODES 385 U.S. 3 


NO. 115.  DECIDED OCTOBER 10, 1966.  - 249 F. SUPP. 860, APPEAL
DISMISSED. 


BUCHANAN ET AL. V. RHODES, GOVERNOR OF OHIO, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 
..END :
















JORDAN V. MENOMONEE FALLS 385 U.S. 4 


NO. 122.  DECIDED OCTOBER 10, 1966.  - 28 WIS. 2D 608, 137 N.W.2D 442,
APPEAL DISMISSED. 


JORDAN ET AL V. VILLAGE OF MENOMONEE FALLS. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















BENNETT V. UNITED STATES 385 U.S. 4 


NO. 143.  DECIDED OCTOBER 10, 1966.  - CERTIORARI GRANTED; 174 CT. CL.
492, 356 F.2D 525, VACATED AND REMANDED. 


BENNETT V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
CLAIMS. 

PER CURIAM. 

IN LIGHT OF THE SUGGESTION OF THE SOLICITOR GENERAL AND UPON AN
EXAMINATION OF THE PAPERS FILED IN THIS CASE, THE PETITION FOR A WRIT
OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE UNITED STATES COURT OF
CLAIMS IS VACATED AND THE CASE IS REMANDED TO THAT COURT. 
..END :














ANNBAR V. WEST SIDE REDEVELOPMENT 385 U.S. 5 


NO. 152.  DECIDED OCTOBER 10, 1966.  - 397 S.W.2D 635, APPEAL
DISMISSED. 


ANNBAR ASSOCIATES ET AL. V. WEST SIDE REDEVELOPMENT CORP. ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















GLICK V. BALLENTINE 385 U.S. 5 


NO. 168.  DECIDED OCTOBER 10, 1966.  - 396 S.W.2D 609, APPEAL
DISMISSED. 


GLICK ET AL. V. BALLENTINE PRODUCE, INC., ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















KRONSBEIN V. TRUSTEES OF SCHOOLS 385 U.S. 6 


NO. 183.  DECIDED OCTOBER 10, 1966.  - 33 ILL. 2D 575, 213 N.E.2D 261,
APPEAL DISMISSED. 


KRONSBEIN V. TRUSTEES OF SCHOOLS OF TOWNSHIP THREE ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















SATANTA V. GRANT 385 U.S. 6 


NO. 192.  DECIDED OCTOBER 10, 1966.  - 195 KAN. 640, 408 P.2D 655,
APPEAL DISMISSED AND CERTIORARI DENIED. 


BOARD OF SATANTA JOINT RURAL HIGH SCHOOL DISTRICT NO. 2 ET AL. V. GRANT
COUNTY PLANNING BOARD ET AL.

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















DOWDLE V. NEW YORK 385 U.S. 7 


NO. 204.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


DOWDLE ET AL. V. NEW YORK ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CALCATERRA V. ILLINOIS 385 U.S. 7 


NO. 267.  DECIDED OCTOBER 10, 1966.  - 33 ILL. 2D 541, 213 N.E.2D 270,
APPEAL DISMISSED AND CERTIORARI DENIED. 


CALCATERRA V. ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















TIETZ V. MARIENTHAL 385 U.S. 8 


NO. 217.  DECIDED OCTOBER 10, 1966.  - 238 CAL. APP. 2D 905, 48 CAL.
RPTR.  245, APPEAL DISMISSED AND CERTIORARI DENIED. 


TIETZ ET AL. V. MARIENTHAL ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















REYNOLDS V. LOUISIANA 385 U.S. 8 


NO. 229.  DECIDED OCTOBER 10, 1966.  - 248 LA. 639, 181 SO. 2D 377,
APPEAL DISMISSED AND CERTIORARI DENIED. 


REYNOLDS, DBA LARRY & KATZ, ET AL. V. LOUISIANA BOARD OF ALCOHOLIC
BEVERAGE CONTROL. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















UNITED STATES V. OHIO 385 U.S. 9 


NO. 271.  DECIDED OCTOBER 10, 1966.  - CERTIORARI GRANTED; 354 F.2D 549,
REVERSED. 


UNITED STATES V. OHIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  WICKARD V. FILBURN, 317 U.S. 111. 
..END :
















FERRANTE V. NEW YORK 385 U.S. 9 


NO. 277.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED. 


FERRANTE V. CITY OF NEW YORK ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















REED V. ILLINOIS 385 U.S. 10 


NO. 282.  DECIDED OCTOBER 10, 1966.  - 33 ILL. 2D 535, 213 N.E.2D 278,
APPEAL DISMISSED. 


REED V. ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















TREFFRY V. TAYLOR 385 U.S. 10 


NO. 291.  DECIDED OCTOBER 10, 1966.  - 67 WASH. 2D 487, 408 P.2D 269,
APPEAL DISMISSED. 


TREFFRY ET AL. V. TAYLOR, DIRECTOR OF LICENSES FOR THE STATE OF
WASHINGTON, ET AL. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :



















CAPELOUTO V. ORKIN 385 U.S. 11 


NO. 316.  DECIDED OCTOBER 10, 1966.  - 183 SO. 2D 532, APPEAL
DISMISSED. 


CAPELOUTO V. ORKIN EXTERMINATING CO. OF FLORIDA, INC. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















MASLOWSKY V. CASSIDY 385 U.S. 11 


NO. 574.  DECIDED OCTOBER 10, 1966.  - 34 ILL. 2D 456, 216 N.E.2D 669,
APPEAL DISMISSED. 


MASLOWSKY ET AL. V. CASSIDY, CHAIRMAN, ILLINOIS HOUSE OF REPRESENTATIVES
COMMISSION, ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A PROPERLY PRESENTED FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS, MR. JUSTICE HARLAN AND MR. JUSTICE BRENNAN ARE
OF THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :













BOOKCASE V. LEARY 385 U.S. 12 


NO. 332.  DECIDED OCTOBER 10, 1966.  - 18 N.Y.2D 71, 218 N.E.2D 668,
APPEAL DISMISSED. 


BOOKCASE, INC., ET AL. V. LEARY, COMMISSIONER OF POLICE OF THE CITY OF
NEW YORK, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A PROPERLY PRESENTED FEDERAL QUESTION. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

MR. JUSTICE HARLAN AND MR. JUSTICE BRENNAN ARE OF THE OPINION THAT
THE APPEAL SHOULD BE DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION. 
..END :









GUY V. TAHASH 385 U.S. 12 


NO. 169, MISC.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED. 


GUY V. TAHASH, WARDEN, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















NEUMANN V. NEW YORK 385 U.S. 13 


NO. 40, MISC.  DECIDED OCTOBER 10, 1966.  - 15 N.Y.2D 979, 207 N.E.2D
531, APPEAL DISMISSED AND CERTIORARI DENIED. 


NEUMANN V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MCCLELLAN V. HUSTON 385 U.S. 13 


NO. 96, MISC.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MCCLELLAN V. HUSTON. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CROSS V. BRUNING 385 U.S. 14 


NO. 134, MISC.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


CROSS V. BRUNING, COUNTY CLERK OF SAN MATEO COUNTY, ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WAKIN V. PENNSYLVANIA 385 U.S. 14 


NO. 293, MISC.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


WAKIN V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BOYDEN V. MAY 385 U.S. 15 


NO. 351, MISC.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED. 


BOYDEN V. MAY, WARDEN. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :


















BRADFORD V. HELMAN 385 U.S. 15 


NO. 389, MISC.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED. 


BRADFORD V. HELMAN, JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW
YORK, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















SPIESEL V. ROOS 385 U.S. 16 


NO. 390, MISC.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED. 


SPIESEL V. ROOS. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :


















BRADFORD V. POSTEL 385 U.S. 16 


NO. 402, MISC.  DECIDED OCTOBER 10, 1966.  - APPEAL DISMISSED. 


BRADFORD V. POSTEL, JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW
YORK, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















JOHNSON V. NEW JERSEY 384 U.S. 719 


NO. 762.  ARGUED FEBRUARY 28, MARCH 1-2, 1966.  - DECIDED JUNE 20,
1966.  - 43 N.J. 572, 206 A.2D 737, AFFIRMED. 


PETITIONERS' CONFESSIONS WERE OFFERED IN EVIDENCE BY THE STATE IN
THEIR TRIAL FOR FELONY MURDER, AT WHICH THEY WERE FOUND GUILTY AND
SENTENCED TO DEATH.  THEIR CONVICTIONS BECAME FINAL SIX YEARS AGO.  ON
COLLATERAL ATTACK PETITIONERS NOW ARGUE THAT THE CONFESSIONS WERE
INADMISSIBLE UNDER ESCOBEDO V. ILLINOIS, 378 U.S. 478.  THE NEW JERSEY
SUPREME COURT HELD THAT ESCOBEDO DID NOT APPLY RETROACTIVELY.  HELD: 

1.  NEITHER ESCOBEDO NOR MIRANDA V. ARIZONA, ANTE, P. 436, WHICH SET
DOWN ADDITIONAL GUIDELINES, IS TO BE APPLIED RETROACTIVELY.  PP. 726
735. 

(A)  LINKLETTER V. WALKER, 381 U.S. 618, AND TEHAN V. SHOTT, 382 U.S.
406, ESTABLISHED THE PRINCIPLE THAT IN CRIMINAL LITIGATION CONCERNING
CONSTITUTIONAL CLAIMS THE COURT MAY MAKE A RULE OF CRIMINAL PROCEDURE
PROSPECTIVE, BASING ITS DETERMINATION UPON THE PURPOSE OF THE NEW
STANDARDS, THE RELIANCE PLACED ON THE PRIOR DECISIONS ON THE SUBJECT,
AND THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A RETROACTIVE
APPLICATION OF THE RULE.  PP. 726-727. 

(B)  THE CHOICE BETWEEN RETROACTIVITY AND NONRETROACTIVITY DOES NOT
DEPEND ON THE VALUE OF THE CONSTITUTIONAL GUARANTEE INVOLVED OR THE
PROVISION OF THE CONSTITUTION ON WHICH THE DICTATE IS BASED, BUT TAKES
ACCOUNT OF THE EXTENT TO WHICH OTHER SAFEGUARDS ARE AVAILABLE TO
PROTECT THE INTEGRITY OF THE TRUTH-DETERMINING PROCESS AT TRIAL.  PP.
728-729. 

(C)  WHILE ESCOBEDO AND MIRANDA GUARD AGAINST THE POSSIBILITY OF
UNRELIABLE STATEMENTS IN CASES OF IN-CUSTODY INTERROGATION, THEY COVER
SITUATIONS WHERE THE DANGER IS NOT NECESSARILY AS GREAT AS WHEN THE
ACCUSED IS SUBJECTED TO OVERT AND OBVIOUS COERCION.  P. 730. 

(D)  FOR PERSONS WHOSE TRIALS HAVE ALREADY BEEN COMPLETED, THE CASE
LAW ON COERCED CONFESSIONS IS AVAILABLE, IF THE PROCEDURAL
PREREQUISITES FOR DIRECT OR COLLATERAL ATTACK ARE MET.  P. 730. 

(E)  LAW ENFORCEMENT AGENCIES FAIRLY RELIED ON PRIOR CASES, NOW NO
LONGER BINDING, IN OBTAINING INCRIMINATING STATEMENTS DURING THE YEARS
PRECEDING ESCOBEDO AND MIRANDA, AND RETROACTIVE APPLICATION OF THOSE
CASES WOULD SERIOUSLY DISRUPT ADMINISTRATION OF THE CRIMINAL LAWS.  P.
731. 

(F)  ESCOBEDO AND MIRANDA SHOULD APPLY ONLY TO CASES WHERE THE TRIALS
HAVE COMMENCED AFTER THE DECISIONS WERE ANNOUNCED, JUNE 22, 1964, AND
JUNE 13, 1966, RESPECTIVELY, PP. 733-735. 

2.  THE OTHER GROUNDS ASSERTED BY PETITIONERS WHICH MAY BE TESTED BY
THIS REVIEW ARE WITHOUT MERIT; THEIR CONTENTIONS RELATING TO THE
VOLUNTARINESS OF THEIR CONFESSIONS ARE BEYOND THE SCOPE OF THE REVIEW
IN THIS PROCEEDING.  P. 735. 

JOHNSON ET AL. V. NEW JERSEY. 

CERTIORARI TO THE SUPREME COURT OF NEW JERSEY. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE WARREN, ANNOUNCED BY MR.
JUSTICE BRENNAN. 

IN THIS CASE WE ARE CALLED UPON TO DETERMINE WHETHER ESCOBEDO V.
ILLINOIS, 378 U.S. 478 (1964), AND MIRANDA V. ARIZONA, ANTE, P. 436,
SHOULD BE APPLIED RETROACTIVELY.  WE HOLD THAT ESCOBEDO AFFECTS ONLY
THOSE CASES IN WHICH THE TRIAL BEGAN AFTER JUNE 22, 1964, THE DATE OF
THAT DECISION.  WE HOLD FURTHER THAT MIRANDA APPLIES ONLY TO CASES IN
WHICH THE TRIAL BEGAN AFTER THE DATE OF OUR DECISION ONE WEEK AGO.  THE
CONVICTIONS ASSAILED HERE WERE OBTAINED AT TRIALS COMPLETED LONG BEFORE
ESCOBEDO AND MIRANDA WERE RENDERED, AND THE RULINGS IN THOSE CASES ARE
THEREFORE INAPPLICABLE TO THE PRESENT PROCEEDING.  PETITIONERS HAVE
ALSO ASKED US TO OVERTURN THEIR CONVICTIONS ON A NUMBER OF OTHER
GROUNDS, BUT WE FIND THESE CONTENTIONS TO BE WITHOUT MERIT, AND
CONSEQUENTLY WE AFFIRM THE DECISION BELOW. 

PETITIONER CASSIDY WAS TAKEN INTO CUSTODY IN CAMDEN, NEW JERSEY, AT 4
A.M. ON JANUARY 29, 1958, FOR FELONY MURDER.  THE POLICE TOOK HIM TO
DETECTIVE HEADQUARTERS AND INTERROGATED HIM IN A SYSTEMATIC FASHION FOR
SEVERAL HOURS.  AT 9 A.M. HE WAS BROUGHT BEFORE THE CHIEF DETECTIVE,
TWO OTHER POLICE OFFICERS, AND A COURT STENOGRAPHER.  THE CHIEF
DETECTIVE INTRODUCED THE PERSONS PRESENT, INFORMED CASSIDY OF THE
POSSIBLE CHARGES AGAINST HIM, GAVE HIM THE WARNING SET FORTH IN THE
MARGIN,  (FN1) CONCLUDED THAT HE UNDERSTOOD THE WARNING, AND OBTAINED
HIS CONSENT TO BE QUESTIONED.  CASSIDY WAS THEN INTERROGATED UNTIL
10:25 A.M. AND MADE A PARTIAL CONFESSION TO FELONY MURDER.  THE
STENOGRAPHER RECORDED THIS INTERROGATION AND READ IT BACK TO CASSIDY
FOR HIS ACKNOWLEDGMENT.  POLICE OFFICERS THEN TOOK HIM TO ANOTHER PART
OF THE BUILDING AND APPARENTLY QUESTIONED HIM FURTHER.  AT 12:15 P.M.
HE WAS BROUGHT BACK TO THE CHIEF DETECTIVE'S OFFICE FOR ANOTHER HALF
HOUR OF RECORDED INTERROGATION.  UNDER CIRCUMSTANCES SIMILAR TO THOSE
ALREADY DESCRIBED, CASSIDY AMENDED HIS CONFESSION TO ADD VITAL
INCRIMINATING DETAILS.  FOR THE NEXT 11 HOURS HE WAS HELD IN A
DETENTION ROOM AND MAY HAVE BEEN SUBJECTED TO FURTHER QUESTIONING.  AT
11:40 P.M. THE POLICE RETURNED HIM TO THE CHIEF DETECTIVE'S OFFICE FOR
A FINAL BRIEF ROUND OF RECORDED INTERROGATION.  TAKEN TOGETHER,
CASSIDY'S THREE FORMAL STATEMENTS ADDED UP TO A COMPLETE CONFESSION OF
FELONY MURDER, AND THEY WERE LATER INTRODUCED AGAINST HIM AT HIS TRIAL
FOR THAT CRIME. 

WHILE THE PRESENT COLLATERAL PROCEEDING WAS PENDING FOLLOWING OUR
DECISION IN ESCOBEDO, CASSIDY FILED AFFIDAVITS IN THE NEW JERSEY
SUPREME COURT WHICH DETAILED FOR THE FIRST TIME CERTAIN SUPPOSED
CIRCUMSTANCES OF HIS CONFESSION.  IN HIS OWN AFFIDAVIT, HE CLAIMED THAT
ON AT LEAST FIVE SEPARATE OCCASIONS DURING HIS INTERROGATION, HE ASKED
FOR PERMISSION TO CONSULT A LAWYER OR TO CONTACT RELATIVES.  THE POLICE
ALLEGEDLY EITHER IGNORED THESE REQUESTS OR TOLD HIM THAT HE COULD NOT
COMMUNICATE WITH OTHERS UNTIL HIS STATEMENT WAS COMPLETED.  CASSIDY
ALSO PRODUCED AFFIDAVITS FROM HIS MOTHER, HIS UNCLE, AND HIS AUNT,
CLAIMING THAT DURING THIS PERIOD THEY CALLED THE DETECTIVE HEADQUARTERS
AT LEAST THREE TIMES AND ONCE APPEARED THERE IN PERSON, SEEKING
INFORMATION ABOUT CASSIDY AND AN OPPORTUNITY TO SPEAK WITH HIM.  THEIR
EFFORTS ALLEGEDLY WERE THWARTED BY THE POLICE.  THESE BELATED CLAIMS
WERE LEFT UNCONTROVERTED BY THE STATE AND WERE ACCEPTED AS TRUE BY THE
COURT BELOW FOR PURPOSES OF THE ESCOBEDO ISSUE. 

THE POLICE TOOK PETITIONER JOHNSON INTO CUSTODY IN NEWARK, NEW
JERSEY, AT 5 P.M. ON JANUARY 29, 1958, FOR THE SAME CRIME AS CASSIDY. 
HE WAS TAKEN TO DETECTIVE HEADQUARTERS AND WAS BOOKED.  LATER IN THE
EVENING THE POLICE BROUGHT HIM BEFORE A MAGISTRATE FOR A BRIEF
PRELIMINARY HEARING.  THE RECORD IS UNCLEAR AS TO WHAT TRANSPIRED
THERE.  BOTH BEFORE AND AFTER THE APPEARANCE IN COURT, HE WAS
QUESTIONED IN A ROUTINE MANNER.  AT 2 A.M. THE POLICE DROVE JOHNSON BY
AUTO TO CAMDEN, THE SCENE OF THE HOMICIDE, 80 MILES FROM NEWARK. 
DURING THE AUTO RIDE HE WAS AGAIN INTERROGATED ABOUT THE CRIME.  UPON
ARRIVAL IN CAMDEN AT ABOUT 4:30 A.M., THE POLICE TOOK HIM DIRECTLY TO
DETECTIVE HEADQUARTERS AND BROUGHT HIM BEFORE THE CHIEF DETECTIVE,
THREE OTHER POLICE OFFICERS, AND A COURT STENOGRAPHER.  AS IN CASSIDY'S
CASE, JOHNSON WAS INTRODUCED TO THE PERSONS PRESENT, INFORMED OF THE
POSSIBLE CHARGES AGAINST HIM, AND GIVEN THE SAME WARNING ALREADY SET
FORTH.  HE STATED THAT HE UNDERSTOOD THE WARNING AND WAS WILLING TO BE
QUESTIONED UNDER THOSE CONDITIONS.  THE POLICE THEN INTERROGATED HIM
UNTIL 6:20 A.M., A PERIOD OF ABOUT ONE AND ONE-HALF HOURS.  DURING THE
COURSE OF THE QUESTIONING, HE MADE A FULL CONFESSION TO THE CRIME OF
FELONY MURDER.  THIS INTERROGATION WAS RECORDED BY THE STENOGRAPHER AND
READ BACK TO JOHNSON FOR HIS ACKNOWLEDGMENT. 

LIKE CASSIDY, JOHNSON FILED AFFIDAVITS IN THE NEW JERSEY SUPREME
COURT IN THIS COLLATERAL PROCEEDING FOLLOWING OUR DECISION IN ESCOBEDO,
DETAILING FOR THE FIRST TIME CERTAIN SUPPOSED CIRCUMSTANCES OF HIS
CONFESSION.  IN HIS OWN AFFIDAVIT, HE CLAIMED THAT AT FOUR SEPARATE
POINTS DURING THE PERIOD DESCRIBED ABOVE, HE ASKED FOR PERMISSION TO
CONSULT A LAWYER OR TO CONTACT RELATIVES SO THAT THEY COULD OBTAIN A
LAWYER FOR HIM.  AS IN CASSIDY'S CASE, THE POLICE ALLEGEDLY EITHER
IGNORED THESE REQUESTS OR TOLD HIM THAT HE COULD NOT COMMUNICATE WITH
OTHERS UNTIL HE HAD GIVEN A STATEMENT.  JOHNSON ALSO PRODUCED
AFFIDAVITS FROM HIS MOTHER AND HIS GIRL FRIEND, CLAIMING THAT ON THREE
OCCASIONS AFTER THE HOMICIDE AND PRIOR TO THE CONFESSION, THEY CALLED
DETECTIVE HEADQUARTERS OR WENT THERE IN PERSON, SEEKING INFORMATION
ABOUT JOHNSON AND AN OPPORTUNITY TO SPEAK WITH HIM.  THEIR EFFORTS
ALLEGEDLY WERE REBUFFED BY THE POLICE.  THESE BELATED CLAIMS, LIKE
CASSIDY'S, WERE LEFT UNCONTROVERTED BY THE STATE AND WERE ACCEPTED AS
TRUE BY THE COURT BELOW FOR RESOLUTION OF THE ESCOBEDO ISSUE. 

THE CONFESSIONS OF JOHNSON AND CASSIDY WERE OFFERED IN EVIDENCE BY
THE STATE AT THEIR JOINT TRIAL FOR FELONY MURDER.  THE JUDGE HELD A
HEARING OUT OF THE PRESENCE OF THE JURY ON THE VOLUNTARINESS OF THE
CONFESSIONS.  PETITIONERS MADE NO EFFORT TO REBUT THE TESTIMONY ADDUCED
BY THE STATE RELATING TO THIS ISSUE.  THE JUDGE FOUND THE CONFESSIONS
VOLUNTARY AND ADMITTED THEM INTO EVIDENCE.  PETITIONERS THEN EXPRESSLY
RELINQUISHED THEIR RIGHT UNDER STATE LAW TO HAVE THE ISSUE OF
VOLUNTARINESS, AND THE ACCOMPANYING EVIDENCE, SUBMITTED TO THE JURY FOR
REDETERMINATION.  (FN2)  THEY DID NOT INTRODUCE ANY TESTIMONY TO
DISPUTE THE CORRECTNESS OF THEIR CONFESSIONS. 

IN SUMMATION AT THE CLOSE OF TRIAL, DEFENSE COUNSEL EXPLICITLY
ASSERTED THAT THE CONFESSIONS WERE TRUTHFUL AND PLEADED FOR LENIENCY ON
THIS GROUND.  CASSIDY'S LAWYER STATED TO THE JURY: 

"WHATEVER IS IN THIS STATEMENT MADE BY STANLEY CASSIDY IS TRUE.  I
KNOW IT IS TRUE  ...  .  MY REASON FOR KNOWING THAT IT IS TRUE IS
BECAUSE OF THE MEETINGS AND CONSULTATIONS I HAVE HAD WITH STANLEY.  WE
HAVE BEEN OVER THIS MANY, MANY TIMES. 

"I KNOW IT IS TRUE BECAUSE I KNOW CHIEF DUBE, AND CHIEF DUBE IS A
FINE INTERROGATOR.  IF YOU DO NOT ANSWER TRUTHFULLY, BELIEVE ME, HE
WILL QUESTION YOU UNTIL HE DOES GET THE TRUTH, AND CHIEF DUBE GOT THE
TRUTH." 

LIKEWISE JOHNSON'S LAWYER TOLD THE JURY: 

"THE STATEMENT OF JOHNSON WAS TRUTHFUL AND HONEST, BECAUSE WHEN THAT
WAS FINISHED, THAT WAS THE END OF IT. 

     *      *         *         *         * 

"THERE WERE NO THREATS.  THERE WAS NO ATTEMPT TO EVADE.  THERE WAS NO
TRICKERY.  ANYTHING THAT CHIEF DUBE ASKED HIM HE ANSWERED HONESTLY AND
TRUTHFULLY." 

THE JURY FOUND JOHNSON AND CASSIDY GUILTY OF MURDER IN THE FIRST
DEGREE WITHOUT RECOMMENDATION OR MERCY, AND THEY WERE SENTENCED TO
DEATH.  (FN3) 

THE CONVICTIONS OF JOHNSON AND CASSIDY BECAME FINAL SIX YEARS AGO,
WHEN THE NEW JERSEY SUPREME COURT AFFIRMED THEM UPON DIRECT APPEAL
(FN4) AND THE TIME EXPIRED FOR PETITIONERS TO SEEK CERTIORARI FROM THE
DECISION.  THERE FOLLOWED A BATTERY OF COLLATERAL ATTACKS IN STATE AND
FEDERAL COURTS, BASED ON NEW FACTUAL ALLEGATIONS, IN WHICH PETITIONERS
REPEATEDLY AND UNSUCCESSFULLY ASSAILED THE VOLUNTARINESS OF THEIR
CONFESSIONS.  (FN5)  THIS PROCEEDING ARISES OUT OF STILL ANOTHER
APPLICATION FOR POST-CONVICTION RELIEF, ACCOMPANIED BY A FRESH SET OF
FACTUAL ALLEGATIONS, IN WHICH PETITIONERS HAVE ARGUED IN PART THAT
THEIR CONFESSIONS WERE INADMISSIBLE UNDER THE PRINCIPLES OF ESCOBEDO. 
THE COURT BELOW REJECTED THE CLAIM, HOLDING THAT ESCOBEDO DID NOT
AFFECT CONVICTIONS WHICH HAD BECOME FINAL PRIOR TO THE DATE OF THAT
DECISION, (FN6) AND IT IS THIS HOLDING WHICH WE ARE PRINCIPALLY CALLED
UPON TO REVIEW.  IN VIEW OF THE STANDARDS ANNOUNCED ONE WEEK AGO
CONCERNING THE WARNINGS WHICH MUST BE GIVEN PRIOR TO IN-CUSTODY
INTERROGATION, THIS CASE ALSO OBLIGES US TO DETERMINE WHETHER MIRANDA
SHOULD BE ACCORDED RETROACTIVE APPLICATION. 

IN THE PAST YEAR WE HAVE TWICE DEALT WITH THE PROBLEM OF
RETROACTIVITY IN CONNECTION WITH OTHER CONSTITUTIONAL RULES OF CRIMINAL
PROCEDURE.  LINKLETTER V. WALKER, 381 U.S. 618 (1965); TEHAN V. SHOTT,
382 U.S. 406 (1966).  THESE CASES ESTABLISH THE PRINCIPLE THAT IN
CRIMINAL LITIGATION CONCERNING CONSTITUTIONAL CLAIMS, "THE COURT MAY IN
THE INTEREST OF JUSTICE MAKE THE RULE PROSPECTIVE  ...  WHERE THE
EXIGENCIES OF THE SITUATION REQUIRE SUCH AN APPLICATION."  381 U.S., AT
628; 382 U.S., AT 410.  THESE CASES ALSO DELINEATE CRITERIA BY WHICH
SUCH AN ISSUE MAY BE RESOLVED.  WE MUST LOOK TO THE PURPOSE OF OUR NEW
STANDARDS GOVERNING POLICE INTERROGATION, THE RELIANCE WHICH MAY HAVE
BEEN PLACED UPON PRIOR DECISIONS ON THE SUBJECT, AND THE EFFECT ON THE
ADMINISTRATION OF JUSTICE OF A RETROACTIVE APPLICATION OF ESCOBEDO AND
MIRANDA.  SEE 381 U.S., AT 636; 382 U.S., AT 413. 

IN LINKLETTER WE DECLINED TO APPLY RETROACTIVELY THE RULE LAID DOWN
IN MAPP V. OHIO, 367 U.S. 643 (1961), BY WHICH EVIDENCE OBTAINED
THROUGH AN UNREASONABLE SEARCH AND SEIZURE WAS EXCLUDED FROM STATE
CRIMINAL PROCEEDINGS.  IN SO HOLDING, WE RELIED IN PART ON THE FACT
THAT THE RULE AFFECTED EVIDENCE "THE RELIABILITY AND RELEVANCY OF WHICH
IS NOT QUESTIONED."  381 U.S., AT 639.  LIKEWISE IN TEHAN WE DECLINED
TO GIVE RETROACTIVE EFFECT TO GRIFFIN V. CALIFORNIA, 380 U.S. 609
(1965), WHICH FORBADE PROSECUTORS AND JUDGES TO COMMENT ADVERSELY ON
THE FAILURE OF A DEFENDANT TO TESTIFY IN A STATE CRIMINAL TRIAL.  IN
REACHING THIS RESULT, WE NOTED THAT THE BASIC PURPOSE OF THE RULE WAS
TO DISCOURAGE COURTS FROM PENALIZING USE OF THE PRIVILEGE AGAINST SELF
INCRIMINATION.  382 U.S., AT 414. 

AS LINKLETTER AND TEHAN ACKNOWLEDGED, HOWEVER, WE HAVE GIVEN
RETROACTIVE EFFECT TO OTHER CONSTITUTIONAL RULES OF CRIMINAL PROCEDURE
LAID DOWN IN RECENT YEARS, WHERE DIFFERENT GUARANTEES WERE INVOLVED. 
FOR EXAMPLE, IN GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), WHICH
CONCERNED THE RIGHT OF AN INDIGENT TO THE ADVICE OF COUNSEL AT TRIAL,
WE REVIEWED A DENIAL OF HABEAS CORPUS.  SIMILARLY, JACKSON V. DENNO,
378 U.S. 368 (1964), WHICH INVOLVED THE RIGHT OF AN ACCUSED TO
EFFECTIVE EXCLUSION OF AN INVOLUNTARY CONFESSION FROM TRIAL, WAS ITSELF
A COLLATERAL ATTACK.  IN EACH INSTANCE WE CONCLUDED THAT RETROACTIVE
APPLICATION WAS JUSTIFIED BECAUSE THE RULE AFFECTED "THE VERY INTEGRITY
OF THE FACT-FINDING PROCESS" AND AVERTED "THE CLEAR DANGER OF
CONVICTING THE INNOCENT."  LINKLETTER V. WALKER, 381 U.S., AT 639;
TEHAN V. SHOTT, 382 U.S., AT 416. 

WE HERE STRESS THAT THE CHOICE BETWEEN RETROACTIVITY AND
NONRETROACTIVITY IN NO WAY TURNS ON THE VALUE OF THE CONSTITUTIONAL
GUARANTEE INVOLVED.  THE RIGHT TO BE REPRESENTED BY COUNSEL AT TRIAL,
APPLIED RETROACTIVELY IN GIDEON V. WAINWRIGHT, SUPRA, HAS BEEN
DESCRIBED BY JUSTICE SCHAEFER OF THE ILLINOIS SUPREME COURT AS "BY FAR
THE MOST PERVASIVE  ...  OF ALL OF THE RIGHTS THAT AN ACCUSED PERSON
HAS."  (FN7)  YET JUSTICE BRANDEIS EVEN MORE BOLDLY CHARACTERIZED THE
IMMUNITY FROM UNJUSTIFIABLE INTRUSIONS UPON PRIVACY, WHICH WAS DENIED
RETROACTIVE ENFORCEMENT IN LINKLETTER, AS "THE MOST COMPREHENSIVE OF
RIGHTS AND THE RIGHT MOST VALUED BY CIVILIZED MEN."  (FN8)  TO
REITERATE WHAT WAS SAID IN LINKLETTER, WE DO NOT DISPARAGE A
CONSTITUTIONAL GUARANTEE IN ANY MANNER BY DECLINING TO APPLY IT
RETROACTIVELY.  SEE 381 U.S., AT 629. 

WE ALSO STRESS THAT THE RETROACTIVITY OR NONRETROACTIVITY OF A RULE
IS NOT AUTOMATICALLY DETERMINED BY THE PROVISION OF THE CONSTITUTION ON
WHICH THE DICTATE IS BASED.  EACH CONSTITUTIONAL RULE OF CRIMINAL
PROCEDURE HAS ITS OWN DISTINCT FUNCTIONS, ITS OWN BACKGROUND OF
PRECEDENT, AND ITS OWN IMPACT ON THE ADMINISTRATION OF JUSTICE, AND THE
WAY IN WHICH THESE FACTORS COMBINE MUST INEVITABLY VARY WITH THE
DICTATE INVOLVED.  ACCORDINGLY AS LINKLETTER AND TEHAN SUGGEST, WE MUST
DETERMINE RETROACTIVITY "IN EACH CASE" BY LOOKING TO THE PECULIAR
TRAITS OF THE SPECIFIC "RULE IN QUESTION."  381 U.S., AT 629; 382 U.S.,
AT 410. 

FINALLY, WE EMPHASIZE THAT THE QUESTION WHETHER A CONSTITUTIONAL RULE
OF CRIMINAL PROCEDURE DOES OR DOES NOT ENHANCE THE RELIABILITY OF THE
FACT-FINDING PROCESS AT TRIAL IS NECESSARILY A MATTER OF DEGREE.  WE
GAVE RETROACTIVE EFFECT TO JACKSON V. DENNO, SUPRA, BECAUSE CONFESSIONS
ARE LIKELY TO BE HIGHLY PERSUASIVE WITH A JURY, AND IF COERCED THEY MAY
WELL BE UNTRUSTWORTHY BY THEIR VERY NATURE.  (FN9)  ON THE OTHER HAND,
WE DENIED RETROACTIVE APPLICATION TO GRIFFIN V. CALIFORNIA, SUPRA,
DESPITE THE FACT THAT COMMENT ON THE FAILURE TO TESTIFY MAY SOMETIMES
MISLEAD THE JURY CONCERNING THE REASONS WHY THE DEFENDANT HAS REFUSED
TO TAKE THE WITNESS STAND.  WE ARE THUS CONCERNED WITH A QUESTION OF
PROBABILITIES AND MUST TAKE ACCOUNT, AMONG OTHER FACTORS, OF THE EXTENT
TO WHICH OTHER SAFEGUARDS ARE AVAILABLE TO PROTECT THE INTEGRITY OF THE
TRUTH-DETERMINING PROCESS AT TRIAL.    HAVING IN MIND THE COURSE OF THE
PRIOR CASES, WE TURN NOW TO THE PROBLEM PRESENTED HERE: WHETHER
ESCOBEDO AND MIRANDA SHOULD BE APPLIED RETROACTIVELY.  (FN10)  OUR
OPINION IN MIRANDA MAKES IT CLEAR THAT THE PRIME PURPOSE OF THESE
RULINGS IS TO GUARANTEE FULL EFFECTUATION OF THE PRIVILEGE AGAINST SELF
INCRIMINATION, THE MAINSTAY OF OUR ADVERSARY SYSTEM OF CRIMINAL
JUSTICE.  SEE, ANTE, PP. 458-466.  THEY ARE DESIGNED IN PART TO ASSURE
THAT THE PERSON WHO RESPONDS TO INTERROGATION WHILE IN CUSTODY DOES SO
WITH INTELLIGENT UNDERSTANDING OF HIS RIGHT TO REMAIN SILENT AND OF THE
CONSEQUENCES WHICH MAY FLOW FROM RELINQUISHING IT.  IN THIS RESPECT THE
RULINGS SECURE SCRUPULOUS OBSERVANCE OF THE TRADITIONAL PRINCIPLE,
OFTEN QUOTED BUT RARELY HEEDED TO THE FULL DEGREE, THAT "THE LAW WILL
NOT SUFFER A PRISONER TO BE MADE THE DELUDED INSTRUMENT OF HIS OWN
CONVICTION."  (FN11)  THUS WHILE ESCOBEDO AND MIRANDA GUARD AGAINST THE
POSSIBILITY OF UNRELIABLE STATEMENTS IN EVERY INSTANCE OF IN-CUSTODY
INTERROGATION, THEY ENCOMPASS SITUATIONS IN WHICH THE DANGER IS NOT
NECESSARILY AS GREAT AS WHEN THE ACCUSED IS SUBJECTED TO OVERT AND
OBVIOUS COERCION. 

AT THE SAME TIME, OUR CASE LAW ON COERCED CONFESSIONS IS AVAILABLE
FOR PERSONS WHOSE TRIALS HAVE ALREADY BEEN COMPLETED, PROVIDING OF
COURSE THAT THE PROCEDURAL PREREQUISITES FOR DIRECT OR COLLATERAL
ATTACK ARE MET.  SEE FAY V. NOIA, 372 U.S. 391 (1963).  PRISONERS MAY
INVOKE A SUBSTANTIVE TEST OF VOLUNTARINESS WHICH, BECAUSE OF THE
PERSISTENCE OF ABUSIVE PRACTICES, HAS BECOME INCREASINGLY METICULOUS
THROUGH THE YEARS.  SEE RECK V. PATE, 367 U.S. 433 (1961).  THAT TEST
NOW TAKES SPECIFIC ACCOUNT OF THE FAILURE TO ADVISE THE ACCUSED OF HIS
PRIVILEGE AGAINST SELF-INCRIMINATION OR TO ALLOW HIM ACCESS TO OUTSIDE
ASSISTANCE.  SEE HAYNES V. WASHINGTON, 373 U.S. 503 (1963); SPANO V.
NEW YORK, 360 U.S. 315 (1959).  PRISONERS ARE ALSO ENTITLED TO PRESENT
EVIDENCE ANEW ON THIS ASPECT OF THE VOLUNTARINESS OF THEIR CONFESSIONS
IF A FULL AND FAIR HEARING HAS NOT ALREADY BEEN AFFORDED THEM.  SEE
TOWNSEND V. SAIN, 372 U.S. 293 (1963).  THUS WHILE ESCOBEDO AND MIRANDA
PROVIDE IMPORTANT NEW SAFEGUARDS AGAINST THE USE OF UNRELIABLE
STATEMENTS AT TRIAL, THE NONRETROACTIVITY OF THESE DECISIONS WILL NOT
PRECLUDE PERSONS WHOSE TRIALS HAVE ALREADY BEEN COMPLETED FROM INVOKING
THE SAME SAFEGUARDS AS PART OF AN INVOLUNTARINESS CLAIM. 

NOR WOULD RETROACTIVE APPLICATION HAVE THE JUSTIFIABLE EFFECT OF
CURING ERRORS COMMITTED IN DISREGARD OF CONSTITUTIONAL RULINGS ALREADY
CLEARLY FORESHADOWED.  WE HAVE POINTED OUT ABOVE THAT PAST DECISIONS
TREATED THE FAILURE TO WARN ACCUSED PERSONS OF THEIR RIGHTS, OR THE
FAILURE TO GRANT THEM ACCESS TO OUTSIDE ASSISTANCE, AS FACTORS TENDING
TO PROVE THE INVOLUNTARINESS OF THE RESULTING CONFESSIONS.  SEE HAYNES
V. WASHINGTON, SUPRA; SPANO V. NEW YORK, SUPRA.  PRIOR TO ESCOBEDO AND
MIRANDA, HOWEVER, WE HAD EXPRESSLY DECLINED TO CONDEMN AN ENTIRE
PROCESS OF IN-CUSTODY INTERROGATION SOLELY BECAUSE OF SUCH CONDUCT BY
THE POLICE.  SEE CROOKER V. CALIFORNIA, 357 U.S. 433 (1958); CICENIA V.
LAGAY, 357 U.S. 504 (1958).  LAW ENFORCEMENT AGENCIES FAIRLY RELIED ON
THESE PRIOR CASES, NOW NO LONGER BINDING, IN OBTAINING INCRIMINATING
STATEMENTS DURING THE INTERVENING YEARS PRECEDING ESCOBEDO AND
MIRANDA.  THIS IS IN FAVORABLE COMPARISON TO THE SITUATION BEFORE MAPP
V. OHIO, 367 U.S. 643 (1961), WHERE THE STATES AT LEAST KNEW THAT THEY
WERE CONSTITUTIONALLY FORBIDDEN FROM ENGAGING IN UNREASONABLE SEARCHES
AND SEIZURES UNDER WOLF V. COLORADO, 338 U.S. 25 (1949). 

AT THE SAME TIME, RETROACTIVE APPLICATION OF ESCOBEDO AND MIRANDA
WOULD SERIOUSLY DISRUPT THE ADMINISTRATION OF OUR CRIMINAL LAWS.  IT
WOULD REQUIRE THE RETRIAL OR RELEASE OF NUMEROUS PRISONERS FOUND GUILTY
BY TRUSTWORTHY EVIDENCE IN CONFORMITY WITH PREVIOUSLY ANNOUNCED
CONSTITUTIONAL STANDARDS.  PRIOR TO ESCOBEDO AND MIRANDA, FEW STATES
WERE UNDER ANY ENFORCED COMPULSION ON ACCOUNT OF LOCAL LAW TO GRANT
REQUESTS FOR THE ASSISTANCE OF COUNSEL OR TO ADVISE ACCUSED PERSONS OF
THEIR PRIVILEGE AGAINST SELF-INCRIMINATION.  COMPARE CROOKER V.
CALIFORNIA, 357 U.S., AT 448, N. 4 (DISSENTING OPINION).  BY
COMPARISON, MAPP V. OHIO, SUPRA, WAS ALREADY THE LAW IN A MAJORITY OF
THE STATES AT THE TIME IT WAS RENDERED, AND ONLY SIX STATES WERE
IMMEDIATELY AFFECTED BY GRIFFIN V. CALIFORNIA, 380 U.S. 609 (1965). 
SEE TEHAN V. SHOTT, 382 U.S., AT 418. 

IN THE LIGHT OF THESE VARIOUS CONSIDERATIONS, WE CONCLUDE THAT
ESCOBEDO AND MIRANDA, LIKE MAPP V. OHIO, SUPRA, AND GRIFFIN V.
CALIFORNIA, SUPRA, SHOULD NOT BE APPLIED RETROACTIVELY.  THE QUESTION
REMAINS WHETHER ESCOBEDO AND MIRANDA SHALL AFFECT CASES STILL ON DIRECT
APPEAL WHEN THEY WERE DECIDED OR WHETHER THEIR APPLICATION SHALL
COMMENCE WITH TRIALS BEGUN AFTER THE DECISIONS WERE ANNOUNCED.  OUR
HOLDINGS IN LINKLETTER AND TEHAN WERE NECESSARILY LIMITED TO
CONVICTIONS WHICH HAD BECOME FINAL BY THE TIME MAPP AND GRIFFIN WERE
RENEDERED.  DECISIONS PRIOR TO LINKLETTER AND TEHAN HAD ALREADY
ESTABLISHED WITHOUT DISCUSSION THAT MAPP AND GRIFFIN APPLIED TO CASES
STILL ON DIRECT APPEAL AT THE TIME THEY WERE ANNOUNCED.  SEE 381 U.S.,
AT 622 AND N. 4; 382 U.S., AT 409, N. 3.  ON THE OTHER HAND, APART FROM
THE APPLICATION OF THE HOLDINGS IN ESCOBEDO AND MIRANDA TO THE PARTIES
BEFORE THE COURT IN THOSE CASES, THE POSSIBILITY OF APPLYING THE
DECISIONS ONLY PROSPECTIVELY IS YET AN OPEN ISSUE. 

ALL OF THE REASONS SET FORTH ABOVE FOR MAKING ESCOBEDO AND MIRANDA
NONRETROACTIVE SUGGEST THAT THESE DECISIONS SHOULD APPLY ONLY TO TRIALS
BEGUN AFTER THE DECISIONS WERE ANNOUNCED.  FUTURE DEFENDANTS WILL
BENEFIT FULLY FROM OUR NEW STANDARDS GOVERNING IN-CUSTODY
INTERROGATION, WHILE PAST DEFENDANTS MAY STILL AVAIL THEMSELVES OF THE
VOLUNTARINESS TEST.  LAW ENFORCEMENT OFFICERS AND TRIAL COURTS WILL
HAVE FAIR NOTICE THAT STATEMENTS TAKEN IN VIOLATION OF THESE STANDARDS
MAY NOT BE USED AGAINST AN ACCUSED.  PROSPECTIVE APPLICATION ONLY TO
TRIALS BEGUN AFTER THE STANDARDS WERE ANNOUNCED IS PARTICULARLY
APPROPRIATE HERE.  AUTHORITIES ATTEMPTING TO PROTECT THE PRIVILEGE HAVE
NOT BEEN APPRISED HERETOFORE OF THE SPECIFIC SAFEGUARDS WHICH ARE NOW
OBLIGATORY.  CONSEQUENTLY THEY HAVE ADOPTED DEVICES WHICH, ALTHOUGH
BELOW THE CONSTITUTIONAL MINIMUM, WERE NOT INTENTIONAL EVASIONS OF THE
REQUIREMENTS OF THE PRIVILEGE.  IN THESE CIRCUMSTANCES, TO UPSET ALL OF
THE CONVICTIONS STILL PENDING ON DIRECT APPEAL WHICH WERE OBTAINED IN
TRIALS PRECEDING ESCOBEDO AND MIRANDA WOULD IMPOSE AN UNJUSTIFIABLE
BURDEN ON THE ADMINISTRATION OF JUSTICE. 

AT THE SAME TIME, WE DO NOT FIND ANY PERSUASIVE REASON TO EXTEND
ESCOBEDO AND MIRANDA TO CASES TRIED BEFORE THOSE DECISIONS WERE
ANNOUNCED, EVEN THOUGH THE CASES MAY STILL BE ON DIRECT APPEAL.  OUR
INTRODUCTORY DISCUSSION IN LINKLETTER, AND THE CASES CITED THEREIN,
HAVE MADE IT CLEAR THAT THERE ARE NO JURISPRUDENTIAL OR CONSTITUTIONAL
OBSTACLES TO THE RULE WE ARE ADOPTING HERE.  SEE 381 U.S., AT 622-629. 
IN APPROPRIATE PRIOR CASES WE HAVE ALREADY APPLIED NEW JUDICIAL
STANDARDS IN A WHOLLY PROSPECTIVE MANNER.  SEE ENGLAND V. LOUISIANA
STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411 (1964); JAMES V. UNITED
STATES, 366 U.S. 213 (1961).  NOR HAVE WE BEEN SHOWN ANY REASON WHY OUR
RULE IS NOT A SOUND ACCOMMODATION OF THE PRINCIPLES OF ESCOBEDO AND
MIRANDA. 

IN THE LIGHT OF THESE ADDITIONAL CONSIDERATIONS, WE CONCLUDE THAT
ESCOBEDO AND MIRANDA SHOULD APPLY ONLY TO CASES COMMENCED AFTER THOSE
DECISIONS WERE ANNOUNCED.  WE RECOGNIZE THAT CERTAIN STATE COURTS HAVE
PERCEIVED THE IMPLICATIONS OF ESCOBEDO AND HAVE THEREFORE ANTICIPATED
OUR HOLDING IN MIRANDA.  OF COURSE, STATES ARE STILL ENTIRELY FREE TO
EFFECTUATE UNDER THEIR OWN LAW STRICTER STANDARDS THAN THOSE WE HAVE
LAID DOWN AND TO APPLY THOSE STANDARDS IN A BROADER RANGE OF CASES THAN
IS REQUIRED BY THIS DECISION. 

APART FROM ITS BROAD IMPLICATIONS, THE PRECISE HOLDING OF ESCOBEDO
WAS THAT STATEMENTS ELICITED BY THE POLICE DURING AN INTERROGATION MAY
NOT BE USED AGAINST THE ACCUSED AT A CRIMINAL TRIAL: 

"WHERE THE INVESTIGATION IS NO LONGER A GENERAL INQUIRY INTO AN
UNSOLVED CRIME BUT HAS BEGUN TO FOCUS ON A PARTICULAR SUSPECT, THE
SUSPECT HAS BEEN TAKEN INTO POLICE CUSTODY, THE POLICE CARRY OUT A
PROCESS OF INTERROGATIONS THAT LENDS ITSELF TO ELICITING INCRIMINATING
STATEMENTS, THE SUSPECT HAS REQUESTED AND BEEN DENIED AN OPPORTUNITY TO
CONSULT WITH HIS LAWYER, AND THE POLICE HAVE NOT EFFECTIVELY WARNED HIM
OF HIS ABSOLUTE CONSTITUTIONAL RIGHT TO REMAIN SILENT  ... ."  378
U.S., AT 490-491. 

BECAUSE ESCOBEDO IS TO BE APPLIED PROSPECTIVELY, THIS HOLDING IS
AVAILABLE ONLY TO PERSONS WHOSE TRIALS BEGAN AFTER JUNE 22, 1964, THE
DATE ON WHICH ESCOBEDO WAS DECIDED. 

AS FOR THE STANDARDS LAID DOWN ONE WEEK AGO IN MIRANDA, IF WE WERE
PERSUADED THAT THEY HAD BEEN FULLY ANTICIPATED BY THE HOLDING IN
ESCOBEDO, WE WOULD MEASURE THEIR PROSPECTIVITY FROM THE SAME DATE. 
DEFENDANTS STILL TO BE TRIED AT THAT TIME WOULD BE ENTITLED TO STRICT
OBSERVANCE OF CONSTITUTIONAL DOCTRINES ALREADY CLEARLY FORESHADOWED. 
THE DISAGREEMENTS AMONG OTHER COURTS CONCERNING THE IMPLICATIONS OF
ESCOBEDO,  (FN12) HOWEVER, HAVE IMPELLED US TO LAY DOWN ADDITIONAL
GUIDELINES FOR SITUATIONS NOT PRESENTED BY THAT CASE.  THIS WE HAVE
DONE IN MIRANDA, AND THESE GUIDELINES ARE THEREFORE AVAILABLE ONLY TO
PERSONS WHOSE TRIALS HAD NOT BEGUN AS OF JUNE 13, 1966.  SEE TEHAN V.
SHOTT, 382 U.S., AT 409, N. 3, IN RELATION TO MALLOY V. HOGAN, 378 U.S.
1 (1964), AND GRIFFIN V. CALIFORNIA, SUPRA. 

PETITIONERS CHALLENGE THE VALIDITY OF THEIR CONVICTIONS ON SEVERAL
OTHER GROUNDS, ALL OF WHICH WE HAVE EXAMINED WITH GREAT CARE, INCLUDING
THE CLAIM THAT THEIR CONFESSIONS WERE COERCED.  WE CONCLUDE WITHOUT
UNNECESSARY DISCUSSION THAT THOSE GROUNDS WHICH MAY BE TESTED ON THIS
REVIEW OF THE JUDGMENT OF THE NEW JERSEY SUPREME COURT ARE WITHOUT
MERIT.  WE FURTHER FIND THAT PETITIONERS' CONTENTIONS RELATING TO THE
VOLUNTARINESS OF THEIR CONFESSIONS ARE BEYOND THE SCOPE OF OUR REVIEW
IN THIS PROCEEDING. 

PETITIONERS' COERCED CONFESSION CLAIM WAS FULLY LITIGATED AND
REJECTED BOTH AT TRIAL AND IN PRIOR POST-CONVICTION HEARINGS IN THE
STATE COURTS.  ON NEITHER OCCASION, HOWEVER, DID PETITIONERS ATTEMPT TO
SUBSTANTIATE CERTAIN ALLEGATIONS MADE FOR THE FIRST TIME IN THE PRESENT
PROCEEDING.  AS STATED ABOVE, PETITIONERS NOW ASSERT THAT THEY WERE
PREVENTED FROM OBTAINING OUTSIDE ASSISTANCE WHILE THEY WERE BEING
INTERROGATED.  THE POLICE ALLEGEDLY REFUSED THEM ACCESS TO THEIR
FAMILIES OR A LAWYER AND ALSO THWARTED THE EFFORTS OF THEIR RELATIVES
AND FRIENDS TO CONTACT THEM.  WE HAVE ALREADY POINTED OUT THAT
ALLEGATIONS OF THIS KIND ARE DIRECTLY RELEVANT TO A COERCED CONFESSION
CLAIM AND THAT SUCH A CLAIM PRESENTS NO PROBLEM OF RETROACTIVITY.  SEE
ALSO DAVIS V. NORTH CAROLINA, POST, P. 737. 

THE NEW JERSEY SUPREME COURT INVOKED A STATE PROCEDURAL RULE,
PREVIOUSLY APPLIED IN ANOTHER CONFESSION CASE, AS A BAR TO
RECONSIDERATION OF PETITIONERS' COERCED CONFESSION CLAIM, EVEN IN THE
LIGHT OF THEIR NEW ALLEGATIONS REGARDING THE DENIAL OF OUTSIDE
ASSISTANCE.  SEE N.J. REV. RULES 3:10A-5 (1965 SUPP.); STATE V. SMITH,
43 N.J. 67, 202 A.2D 669 (1964).  THIS IS AN ADEQUATE STATE GROUND
WHICH PRECLUDES US FROM TESTING THE COERCED CONFESSION CLAIM ON THE
PRESENT REVIEW, WHATEVER MAY BE THE SIGNIFICANCE OF THE STATE COURT'S
RELIANCE ON ITS PROCEDURAL RULE IN FEDERAL HABEAS CORPUS PROCEEDINGS. 
SEE FAY V. NOIA, 372 U.S. 391 (1963). 

THE JUDGMENT OF THE SUPREME COURT OF NEW JERSEY IS AFFIRMED. 

FN1  "I AM GOING TO ASK YOU SOME QUESTIONS AS TO WHAT YOU KNOW ABOUT
THE HOLD-UP, BUT BEFORE I ASK YOU THESE QUESTIONS IT IS MY DUTY TO WARN
YOU THAT EVERYTHING YOU TELL ME MUST BE OF YOUR OWN FREE WILL, MUST BE
THE TRUTH, WITHOUT ANY PROMISES OR THREATS HAVING BEEN MADE TO YOU, AND
KNOWING ANYTHING YOU TELL ME CAN BE USED AGAINST YOU, OR ANY OTHER
PERSON, AT SOME FUTURE TIME." 

FN2  THE PROCEDURE PRESCRIBED BY STATE LAW WAS OUTLINED IN THE
OPINION BELOW AS FOLLOWS: 

"UNDER THE NEW JERSEY PROCEDURE FOR THE ADMISSION IN EVIDENCE OF A
CONFESSION, THE TRIAL JUDGE MUST FIRST DETERMINE WHETHER THE CONFESSION
WAS VOLUNTARY.  IF HE FINDS THE CONFESSION TO BE VOLUNTARY, AND HENCE
ADMISSIBLE, HE INSTRUCTS THE JURY TO ALSO CONSIDER THE VOLUNTARINESS OF
THE CONFESSION AND TO DISREGARD IT UNLESS THE STATE PROVES IT WAS
VOLUNTARILY GIVEN."  43 N.J. 572, 586, N. 9, 206 A.2D 737, 744-745, N.
9. 

FN3  A THIRD DEFENDANT, WAYNE GODFREY, WAS ALSO FOUND GUILTY AND
SENTENCED TO DEATH.  HIS CONVICTION WAS SUBSEQUENTLY OVERTURNED BY A
FEDERAL COURT IN POST-CONVICTION PROCEEDINGS.  UPON RETRIAL FOR FELONY
MURDER, HE PLEADED NON VULT AND WAS SENTENCED TO LIFE IMPRISONMENT. 

FN4  STATE V. JOHNSON, 31 N.J. 489, 158 A.2D 11 (1960). 

FN5  STATE V. JOHNSON, 63 N.J. SUPER.  16, 163 A.2D 593 (1960),
AFF'D, 34 N.J. 212, 168 A.2D 1, CERT. DENIED, 368 U.S. 933 (1961);
UNITED STATES EX REL. JOHNSON V. YEAGER, 327 F.2D 311 (C.A. 3D CIR.),
CERT. DENIED, 377 U.S. 984 (1964).  SEE ALSO STATE V. JOHNSON, 71 N.J.
SUPER.  506, 177 A.2D 312, AFF'D, 37 N.J. 19, 179 A.2D 1, CERT. DENIED,
370 U.S. 928 (1962). 

FN6  43 N.J. 572, 206 A.2D 737.   FN7  FEDERALISM AND STATE CRIMINAL
PROCEDURE, 70 HARV. L. REV. 1, 8 (1956). 

FN8  OLMSTEAD V. UNITED STATES, 277 U.S. 438, 478 (1928) (DISSENTING
OPINION). 

FN9  COERCED CONFESSIONS ARE, OF COURSE, INADMISSIBLE REGARDLESS OF
THEIR ALLEGED TRUTH OR FALSITY.  SEE ROGERS V. RICHMOND, 365 U.S. 534
(1961). 

FN10  IT APPEARS THAT EVERY STATE SUPREME COURT AND FEDERAL COURT OF
APPEALS WHICH HAS DISCUSSED THE QUESTION HAS DECLINED TO APPLY THE
TENETS OF ESCOBEDO RETROACTIVELY.  FOR EXAMPLE, SEE IN RE LOPEZ, 62
CAL. 2D 368, 42 CAL. RPTR.  188, 398 P.2D 380 (1965); RUARK V. PEOPLE,
COLO. - , 405 P.2D 751 (1965); COMMONWEALTH V. NEGRI, 419 PA. 117, 213
A.2D 670 (1965); UNITED STATES EX REL. WALDEN V. PATE, 350 F.2D 240
(C.A. 7TH CIR. 1965).  THE COMMENTATORS, HOWEVER, ARE DIVIDED ON THIS
ISSUE.  COMPARE MISHKIN, THE SUPREME COURT 1964 TERM - FOREWORD:  THE
HIGH COURT, THE GREAT WRIT, AND THE DUE PROCESS OF TIME AND LAW, 79
HARV. L. REV. 56 (1965), WHICH OPPOSES RETROACTIVE APPLICATION, WITH
COMMENT, LINKLETTER, SHOTT, AND THE RETROACTIVITY PROBLEM IN ESCOBEDO,
64 MICH. L. REV. 832 (1966). 

FN11  2 HAWKINS, PLEAS OF THE CROWN 595 (8TH ED. 1824). 

FN12  FOR EXAMPLE, COMPARE PEOPLE V. DORADO, 62 CAL. 2D 338, 42 CAL.
RPTR.  169, 398 P.2D 361 (1965), AND PEOPLE V. DUFOUR, - R.I. - , 206
A.2D 82 (1965), WHICH CONSTRUE ESCOBEDO BROADLY, WITH PEOPLE V.
HARTGRAVES, 31 ILL. 2D 375, 202 N.E.2D 33 (1964), AND BROWNE V. STATE,
24 WIS. 2D 491, 131 N.W.2D 169 (1964). 

MR. JUSTICE CLARK CONCURS IN THE OPINION AND JUDGMENT OF THE COURT. 
HE ADHERES, HOWEVER, TO THE VIEWS STATED IN HIS SEPARATE OPINION IN
MIRANDA V. ARIZONA, ANTE, P. 499. 

MR. JUSTICE HARLAN, MR. JUSTICE STEWART, AND MR. JUSTICE WHITE CONCUR
IN THE OPINION AND JUDGMENT OF THE COURT.  THEY CONTINUE TO BELIEVE,
HOWEVER, FOR THE REASONS STATED IN THE DISSENTING OPINIONS OF MR.
JUSTICE HARLAN AND MR. JUSTICE WHITE IN MIRANDA V. ARIZONA AND ITS
COMPANION CASES, ANTE, PP. 504, 526, THAT THE NEW CONSTITUTIONAL RULES
PROMULGATED IN THOSE CASES ARE BOTH UNJUSTIFIED AND UNWISE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTS FROM
THE COURT'S HOLDING THAT THE PETITIONERS HERE ARE NOT ENTITLED TO THE
FULL PROTECTIONS OF THE FIFTH AND SIXTH AMENDMENTS AS THIS COURT HAS
CONSTRUED THEM IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, AND MIRANDA V.
ARIZONA, ANTE, P. 436, FOR SUBSTANTIALLY THE SAME REASONS STATED IN HIS
DISSENTING OPINION IN LINKLETTER V. WALKER, 381 U.S. 618, AT 640. 
..END :



















DAVIS V. NORTH CAROLINA 384 U.S. 737 


NO. 815.  ARGUED APRIL 28, 1966.  - DECIDED JUNE 20, 1966.  - 339 F.2D
770, REVERSED AND REMANDED. 


PETITIONER, AN IMPOVERISHED NEGRO OF LOW MENTALITY WITH A THIRD OR
FOURTH GRADE EDUCATION, WAS ARRESTED AFTER HIS ESCAPE FROM A STATE
PRISON CAMP.  CHARLOTTE CITY POLICE TOOK HIM INTO CUSTODY IN CONNECTION
WITH A MURDER INVESTIGATION AND KEPT HIM IN A DETENTION CELL FOR 16
DAYS, WHERE HE SPOKE TO NO ONE BUT THE POLICE, WHO INTERROGATED HIM
INTERMITTENTLY EACH DAY.  HE FINALLY CONFESSED TO THE CRIME.  THERE IS
NO INDICATION IN THE RECORD THAT POLICE ADVISED HIM OF ANY OF HIS
RIGHTS UNTIL AFTER HIS CONFESSIONS.  AT HIS TRIAL FOR RAPE-MURDER, A
WRITTEN CONFESSION AND TESTIMONY OF AN ORAL CONFESSION WERE INTRODUCED
IN EVIDENCE, DESPITE COUNSEL'S OBJECTION THAT THE CONFESSIONS WERE
INVOLUNTARY.  PETITIONER WAS FOUND GUILTY AND SENTENCED TO DEATH.  THE
CONVICTION WAS AFFIRMED BY THE NORTH CAROLINA SUPREME COURT.  THE
FEDERAL DISTRICT COURT DENIED A WRIT OF HABEAS CORPUS BUT THE COURT OF
APPEALS REVERSED AND REMANDED TO THE DISTRICT COURT FOR AN EVIDENTIARY
HEARING ON THE VOLUNTARINESS OF THE CONFESSIONS.  THE DISTRICT COURT,
FOLLOWING A HEARING, HELD THE CONFESSIONS VOLUNTARY AND THE COURT OF
APPEALS AFFIRMED.  HELD:  PETITIONER'S CONFESSIONS WERE THE INVOLUNTARY
END PRODUCT OF COERCIVE INFLUENCES AND THUS CONSTITUTIONALLY
INADMISSIBLE IN EVIDENCE.  PP. 739-753. 

(A)  HAD THIS TRIAL OCCURRED AFTER MIRANDA V. ARIZONA, ANTE, P. 436,
THE DECISION BELOW WOULD BE REVERSED SUMMARILY.  P. 739. 

(B)  AS JOHNSON V. NEW JERSEY, ANTE, P. 719, POINTS OUT, THE
NONRETROACTIVITY OF MIRANDA DOES NOT AFFECT A COURT'S DUTY TO CONSIDER
THE VOLUNTARINESS OF STATEMENTS UNDER THE STANDARDS OF VOLUNTARINESS
WHICH HAD BEGUN TO EVOLVE LONG PRIOR TO MIRANDA AND ESCOBEDO V.
ILLINOIS, 378 U.S. 478.  P. 740. 

(C)  THE FACT THAT A DEFENDANT WAS NOT ADVISED OF HIS RIGHT TO REMAIN
SILENT OR OF HIS RIGHT TO COUNSEL AT THE OUTSET OF INTERROGATION, AS IS
NOW REQUIRED BY MIRANDA, IS SIGNIFICANT IN CONSIDERING THE
VOLUNTARINESS OF LATER STATEMENTS.  PP. 740-741. 

(D)  IT IS THIS COURT'S DUTY TO EXAMINE THE ENTIRE RECORD AND MAKE AN
INDEPENDENT DETERMINATION OF THE ULTIMATE ISSUE OF VOLUNTARINESS.  PP.
741-742. 

(E)  THE UNCONTESTED FACT THAT NO ONE OTHER THAN THE POLICE SPOKE TO
PETITIONER DURING HIS 16 DAYS' DETENTION AND INTERROGATION IS
SIGNIFICANT IN DETERMINING VOLUNTARINESS.  PP. 745-746. 

(F)  EVIDENCE OF EXTENDED INTERROGATION IN A COERCIVE ATMOSPHERE, AS
HERE, HAS OFTEN RESULTED IN A FINDING OF INVOLUNTARINESS BY THIS COURT,
E.G., FIKES V. ALABAMA, 352 U.S. 191.  THIS COURT HAS NEVER SUSTAINED
THE USE OF A CONFESSION OBTAINED AFTER SUCH A LENGTHY PERIOD OF
DETENTION AND INTERROGATION AS OCCURRED HERE.  P. 752. 

DAVIS V. NORTH CAROLINA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE WARREN, ANNOUNCED BY MR.
JUSTICE BRENNAN. 

PETITIONER, ELMER DAVIS, JR., WAS TRIED BEFORE A JURY IN THE SUPERIOR
COURT OF MECKLENBURG COUNTY, NORTH CAROLINA, ON A CHARGE OF RAPE
MURDER.  AT TRIAL, A WRITTEN CONFESSION AND TESTIMONY AS TO AN ORAL
CONFESSION WERE OFFERED IN EVIDENCE.  DEFENSE COUNSEL OBJECTED ON THE
GROUND THAT THE CONFESSIONS WERE INVOLUNTARILY GIVEN.  THE TRIAL JUDGE
HEARD TESTIMONY ON THIS ISSUE, RULED THAT THE CONFESSIONS WERE MADE
VOLUNTARILY, AND PERMITTED THEM TO BE INTRODUCED IN EVIDENCE.  THE JURY
RETURNED A VERDICT OF GUILTY WITHOUT A RECOMMENDATION FOR LIFE
IMPRISONMENT, AND DAVIS WAS SENTENCED TO DEATH. 

THE CONVICTION WAS AFFIRMED ON APPEAL BY THE SUPREME COURT OF NORTH
CAROLINA, 253 N.C. 86, 116 S.E.2D 365, AND THIS COURT DENIED
CERTIORARI.  365 U.S. 855.  DAVIS THEN SOUGHT A WRIT OF HABEAS CORPUS
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH
CAROLINA.  THE WRIT WAS DENIED WITHOUT AN EVIDENTIARY HEARING ON THE
BASIS OF THE STATE COURT RECORD.  196 F. SUPP. 488.  ON APPEAL, THE
COURT OF APPEALS FOR THE FOURTH CIRCUIT REVERSED AND REMANDED THE CASE
TO THE DISTRICT COURT FOR AN EVIDENTIARY HEARING ON THE ISSUE OF THE
VOLUNTARINESS OF DAVIS' CONFESSIONS.  310 F.2D 904.  A HEARING WAS HELD
IN THE DISTRICT COURT, FOLLOWING WHICH THE DISTRICT JUDGE AGAIN HELD
THAT THE CONFESSIONS WERE VOLUNTARY.  221 F. SUPP. 494.  THE COURT OF
APPEALS FOR THE FOURTH CIRCUIT, AFTER ARGUMENT AND THEN RESUBMISSION EN
BANC, AFFIRMED WITH TWO JUDGES DISSENTING.  339 F.2D 770.  WE GRANTED
CERTIORARI.  382 U.S. 953. 

WE ARE NOT CALLED UPON IN THIS PROCEEDING TO PASS ON THE GUILT OR
INNOCENCE OF THE PETITIONER OF THE ATROCIOUS CRIME THAT WAS COMMITTED. 
NOR ARE WE CALLED UPON TO DETERMINE WHETHER THE CONFESSIONS OBTAINED
ARE TRUE OR FALSE.  ROGERS V. RICHMOND, 365 U.S. 534 (1961).  THE SOLE
ISSUE PRESENTED FOR REVIEW IS WHETHER THE CONFESSIONS WERE VOLUNTARILY
GIVEN OR WERE THE RESULT OF OVERBEARING BY POLICE AUTHORITIES.  UPON
THOROUGH REVIEW OF THE RECORD, WE HAVE CONCLUDED THAT THE CONFESSIONS
WERE NOT MADE FREELY AND VOLUNTARILY BUT RATHER THAT DAVIS' WILL WAS
OVERBORNE BY THE SUSTAINED PRESSURES UPON HIM.  THEREFORE, THE
CONFESSIONS ARE CONSTITUTIONALLY INADMISSIBLE AND THE JUDGMENT OF THE
COURT BELOW MUST BE REVERSED. 

HAD THE TRIAL IN THIS CASE BEFORE US COME AFTER OUR DECISION IN
MIRANDA V. ARIZONA, ANTE, P. 436, WE WOULD REVERSE SUMMARILY.  DAVIS
WAS TAKEN INTO CUSTODY BY CHARLOTTE POLICE AND INTERROGATED REPEATEDLY
OVER A PERIOD OF 16 DAYS.  THERE IS NO INDICATION IN THE RECORD THAT
POLICE ADVISED HIM OF ANY OF HIS RIGHTS UNTIL AFTER HE HAD CONFESSED
ORALLY ON THE 16TH DAY.  (FN1)  THIS WOULD BE CLEARLY IMPROPER UNDER
MIRANDA.  ID., AT 478-479, 492.  SIMILARLY, NO WAIVER OF RIGHTS COULD
BE INFERRED FROM THIS RECORD SINCE IT SHOWS ONLY THAT DAVIS WAS
REPEATEDLY INTERROGATED AND THAT HE DENIED THE ALLEGED OFFENSE PRIOR TO
THE TIME HE FINALLY CONFESSED.  ID., AT 476, 499. 

WE HAVE ALSO HELD TODAY, IN JOHNSON V. NEW JERSEY, ANTE, P. 719, THAT
OUR DECISION IN MIRANDA, DELINEATING PROCEDURES TO SAFEGUARD THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION DURING IN-CUSTODY
INTERROGATION IS TO BE APPLIED PROSPECTIVELY ONLY.  THUS THE PRESENT
CASE MAY NOT BE REVERSED SOLELY ON THE GROUND THAT WARNINGS WERE NOT
GIVEN AND WAIVER NOT SHOWN.  AS WE POINTED OUT IN JOHNSON, HOWEVER, THE
NONRETROACTIVITY OF THE DECISION IN MIRANDA DOES NOT AFFECT THE DUTY OF
COURTS TO CONSIDER CLAIMS THAT A STATEMENT WAS TAKEN UNDER
CIRCUMSTANCES WHICH VIOLATE THE STANDARDS OF VOLUNTARINESS WHICH HAD
BEGUN TO EVOLVE LONG PRIOR TO OUR DECISIONS IN MIRANDA AND ESCOBEDO V.
ILLINOIS, 378 U.S. 478 (1964).  THIS COURT HAS UNDERTAKEN TO REVIEW THE
VOLUNTARINESS OF STATEMENTS OBTAINED BY POLICE IN STATE CASES SINCE
BROWN V. MISSISSIPPI, 297 U.S. 278 (1936).  THE STANDARD OF
VOLUNTARINESS WHICH HAS EVOLVED IN STATE CASES UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT IS THE SAME GENERAL STANDARD WHICH
APPLIED IN FEDERAL PROSECUTIONS - A STANDARD GROUNDED IN THE POLICIES
OF THE PRIVILEGE AGAINST SELF-INCRIMINATION.  MALLOY V. HOGAN, 378 U.S.
1, 6-8 (1964). 

THE REVIEW OF VOLUNTARINESS IN CASES IN WHICH THE TRIAL WAS HELD
PRIOR TO OUR DECISIONS IN ESCOBEDO AND MIRANDA IS NOT LIMITED IN ANY
MANNER BY THESE DECISIONS.  ON THE CONTRARY, THAT A DEFENDANT WAS NOT
ADVISED OF HIS RIGHT TO REMAIN SILENT OR OF HIS RIGHT RESPECTING
COUNSEL AT THE OUTSET OF INTERROGATION, AS IS NOW REQUIRED BY MIRANDA,
IS A SIGNIFICANT FACTOR IN CONSIDERING THE VOLUNTARINESS OF STATEMENTS
LATER MADE.  THIS FACTOR HAS BEEN RECOGNIZED IN SEVERAL OF OUR PRIOR
DECISIONS DEALING WITH STANDARDS OF VOLUNTARINESS.  HAYNES V.
WASHINGTON, 373 U.S. 503, 510-511 (1963); CULOMBE V. CONNECTICUT, 367
U.S. 568, 610 (1961); TURNER V. PENNSYLVANIA, 338 U.S. 62, 64 (1949). 
SEE ALSO GALLEGOS V. COLORADO, 370 U.S. 49, 54, 55 (1962).  THUS, THE
FACT THAT DAVIS WAS NEVER EFFECTIVELY ADVISED OF HIS RIGHTS GIVES ADDED
WEIGHT TO THE OTHER CIRCUMSTANCES DESCRIBED BELOW WHICH MADE HIS
CONFESSIONS INVOLUNTARY. 

AS IS ALMOST INVARIABLY SO IN CASES INVOLVING CONFESSIONS OBTAINED
THROUGH UNOBSERVED POLICE INTERROGATION, THERE IS A CONFLICT IN THE
TESTIMONY AS TO THE EVENTS SURROUNDING THE INTERROGATIONS.  DAVIS
ALLEGED THAT HE WAS BEATEN, THREATENED, AND CURSED BY POLICE AND THAT
HE WAS TOLD HE WOULD GET A HOT BATH AND SOMETHING TO EAT AS SOON AS HE
SIGNED A STATEMENT.  THIS WAS FLATLY DENIED BY EACH OFFICER WHO
TESTIFIED.  (FN2)  DAVIS FURTHER STATED THAT HE HAD REPEATEDLY ASKED
FOR A LAWYER AND THAT POLICE REFUSED TO ALLOW HIM TO OBTAIN ONE.  THIS
WAS ALSO DENIED.  DAVIS' SISTER TESTIFIED AT THE HABEAS CORPUS HEARING
THAT SHE TWICE CAME TO THE POLICE STATION AND ASKED TO SEE HIM, BUT
THAT EACH TIME POLICE OFFICERS TOLD HER DAVIS WAS NOT HAVING VISITORS. 
POLICE OFFICERS TESTIFIED THAT, ON THE CONTRARY, UPON LEARNING OF
DAVIS' DESIRE TO SEE HIS SISTER, THEY WENT TO HER HOME TO TELL HER
DAVIS WANTED TO SEE HER, BUT SHE INFORMED THEM SHE WAS BUSY WITH HER
CHILDREN.  THESE FACTUAL ALLEGATIONS WERE RESOLVED AGAINST DAVIS BY THE
DISTRICT COURT AND WE NEED NOT REVIEW THESE SPECIFIC FINDINGS HERE. 

IT IS OUR DUTY IN THIS CASE, HOWEVER, AS IN ALL OF OUR PRIOR CASES
DEALING WITH THE QUESTION WHETHER A CONFESSION WAS INVOLUNTARILY GIVEN,
TO EXAMINE THE ENTIRE RECORD AND MAKE AN INDEPENDENT DETERMINATION OF
THE ULTIMATE ISSUE OF VOLUNTARINESS.  E.G., HAYNES V. WASHINGTON, 373
U.S. 503, 515-516 (1963); BLACKBURN V. ALABAMA, 361 U.S. 199, 205
(1960); ASHCRAFT V. TENNESSEE, 322 U.S. 143, 147-148 (1944).  WHOLLY
APART FROM THE DISPUTED FACTS, A STATEMENT OF THE CASE FROM FACTS
ESTABLISHED IN THE RECORD, IN OUR VIEW, LEADS PLAINLY TO THE CONCLUSION
THAT THE CONFESSIONS WERE THE PRODUCT OF A WILL OVERBORNE. 

ELMER DAVIS IS AN IMPOVERISHED NEGRO WITH A THIRD OR FOURTH GRADE
EDUCATION.  HIS LEVEL OF INTELLIGENCE IS SUCH THAT IT PROMPTED THE
COMMENT BY THE COURT BELOW, EVEN WHILE DECIDING AGAINST HIM ON HIS
CLAIM OF INVOLUNTARINESS, THAT THERE IS A MORAL QUESTION WHETHER A
PERSON OF DAVIS' MENTALITY SHOULD BE EXECUTED.  POLICE FIRST CAME IN
CONTACT WITH DAVIS WHILE HE WAS A CHILD WHEN HIS MOTHER MURDERED HIS
FATHER, AND THEREAFTER KNEW HIM THROUGH HIS LONG CRIMINAL RECORD,
BEGINNING WITH A PRISON TERM HE SERVED AT THE AGE OF 15 OR 16. 

IN SEPTEMBER 1959, DAVIS ESCAPED FROM A STATE PRISON CAMP NEAR
ASHEVILLE, NORTH CAROLINA, WHERE HE WAS SERVING SENTENCES OF 17 TO 25
YEARS.  ON SEPTEMBER 20, 1959, MRS. FOY BELLE COOPER WAS RAPED AND
MURDERED IN THE ELMWOOD CEMETERY IN THE CITY OF CHARLOTTE, NORTH
CAROLINA.  ON SEPTEMBER 21, POLICE IN A NEIGHBORING COUNTY ARRESTED
DAVIS IN BELMONT, 12 MILES FROM CHARLOTTE.  HE WAS WEARING CIVILIAN
CLOTHES AND HAD IN HIS POSSESSION WOMEN'S UNDERGARMENTS AND A BILLFOLD
WITH IDENTIFICATION PAPERS OF ONE BISHEL BUREN HAYES.  HAYES TESTIFIED
AT TRIAL THAT HIS BILLFOLD AND SHOES HAD BEEN TAKEN FROM HIM WHILE HE
LAY IN A DRUNKEN SLEEP NEAR THE ELMWOOD CEMETERY ON SEPTEMBER 20. 

CHARLOTTE POLICE LEARNED OF DAVIS' ARREST AND CONTACTED THE WARDEN OF
THE STATE PRISON TO GET PERMISSION TO TAKE DAVIS INTO THEIR CUSTODY IN
CONNECTION WITH THE COOPER MURDER AND OTHER FELONIES.   HAVING OBTAINED
PERMISSION, THEY TOOK DAVIS FROM BELMONT AUTHORITIES AND BROUGHT HIM TO
THE DETECTIVE HEADQUARTERS IN CHARLOTTE.  FROM THE TESTIMONY OF THE
OFFICERS, IT IS BEYOND DISPUTE THAT THE REASON FOR SECURING DAVIS WAS
THEIR SUSPICION THAT HE HAD COMMITTED THE MURDER.  (FN3) 

THE SECOND AND THIRD FLOORS OF THE DETECTIVE HEADQUARTERS BUILDING
CONTAIN LOCKUP CELLS USED FOR DETENTION OVERNIGHT AND OCCASIONALLY FOR
SLIGHTLY LONGER PERIODS.  IT HAS NO KITCHEN FACILITIES FOR PREPARING
MEALS.  THE CELL IN WHICH DAVIS WAS PLACED MEASURES 6 BY 10 FEET AND
CONTAINS A SOLID STEEL BUNK WITH MATTRESS, A DRINKING FOUNTAIN, AND A
COMMODE.  IT IS LOCATED ON THE INSIDE OF THE BUILDING WITH NO VIEW OF
DAYLIGHT.  IT IS VENTILATED BY TWO EXHAUST FANS LOCATED IN THE CEILING
OF THE TOP FLOOR OF THE BUILDING.  DESPITE THE FACT THAT A COUNTY JAIL
EQUIPPED AND USED FOR LENGTHY DETENTION IS LOCATED DIRECTLY ACROSS THE
STREET FROM DETECTIVE HEADQUARTERS, DAVIS WAS INCARCERATED IN THIS CELL
ON AN UPPER FLOOR OF THE BUILDING FOR THE ENTIRE PERIOD UNTIL HE
CONFESSED.  (FN4) POLICE CHIEF JESSE JAMES TESTIFIED:  "I DON'T KNOW
ANYBODY WHO HAS STAYED IN THE CITY JAIL AS LONG AS THIS BOY." 

WHEN DAVIS ARRIVED AT THE DETECTIVE HEADQUARTERS, AN ARREST SHEET WAS
PREPARED GIVING VARIOUS STATISTICS CONCERNING HIM.  ON THIS ARREST
SHEET WAS TYPED THE FOLLOWING ILLUMINATING DIRECTIVE: "HOLD FOR HUCKS &
FESPERMAN RE-MRS.  COOPER.  ESCAPEE FROM HAYWOOD COUNTY STILL HAS 15
YEARS TO PULL.   DO NOT ALLOW ANYONE TO SEE DAVIS.  OR ALLOW HIM TO USE
TELEPHONE."  BOTH AT TRIAL AND AT THE HABEAS CORPUS HEARING THE
TESTIMONY OF POLICE OFFICERS ON THIS NOTATION WAS NEARLY UNIFORM.  EACH
OFFICER TESTIFIED THAT HE DID NOT PUT THAT DIRECTIVE ON THE ARREST
SHEET, THAT HE DID NOT KNOW WHO DID, AND THAT HE NEVER KNEW OF IT.  THE
POLICE CAPTAIN FIRST TESTIFIED AT TRIAL THAT THERE HAD NEVER BEEN AN
ORDER ISSUED IN THE POLICE DEPARTMENT THAT DAVIS WAS NOT TO SEE OR TALK
TO ANYBODY.  HE CITED AS AN EXAMPLE THE FACT THAT DAVIS' SISTER CAME TO
SEE HIM (AFTER DAVIS HAD CONFESSED).  HE TESTIFIED LATER IN THE TRIAL,
HOWEVER: 

"I DON'T KNOW, IT IS POSSIBLE I COULD HAVE ORDERED THIS BOY TO BE
HELD WITHOUT PRIVILEGE OF COMMUNICATING WITH HIS FRIENDS, RELATIVES AND
HELD WITHOUT THE PRIVILEGE OF USING THE TELEPHONE OR WITHOUT THE
PRIVILEGE OF TALKING TO ANYBODY  ...  .  NO, I DID NOT WANT HIM TO TALK
TO ANYBODY.  FOR THE SIMPLE REASON HE WAS AN ESCAPED CONVICT AND IT IS
THE RULES AND REGULATIONS OF THE PENAL SYSTEM THAT IF HE IS A C GRADE
PRISONER HE IS NOT PERMITTED TO SEE ANYONE ALONE OR WRITE ANYONE
LETTERS AND I WAS TRYING TO CONFORM TO THE STATE REGULATIONS."  (FN5) 

THE DISTRICT COURT FOUND AS A FACT THAT FROM SEPTEMBER 21 UNTIL AFTER
HE CONFESSED ON OCTOBER 6, NEITHER FRIEND NOR RELATIVE SAW DAVIS.  IT
CONCLUDED, HOWEVER, THAT DAVIS WAS NOT HELD INCOMMUNICADO BECAUSE HE
WOULD HAVE BEEN PERMITTED VISITORS HAD ANYONE REQUESTED TO SEE HIM.  IN
SO FINDING, THE DISTRICT COURT NOTED SPECIFICALLY THE TESTIMONY THAT
POLICE OFFICERS CONTACTED DAVIS' SISTER FOR HIM.  BUT THE COURT MADE NO
MENTION WHATEVER OF THE NOTATION ON THE ARREST SHEET OR THE TESTIMONY
OF THE POLICE CAPTAIN. 

THE STARK WORDING OF THE ARREST SHEET DIRECTIVE REMAINS, AS DOES
CAPTAIN MCCALL'S TESTIMONY.  THE DENIALS AND EVASIVE TESTIMONY OF THE
OTHER OFFICERS CANNOT WIPE THIS EVIDENCE FROM THE RECORD.  EVEN
ACCEPTING THAT POLICE WOULD HAVE ALLOWED A PERSON TO SEE DAVIS HAD
ANYONE ACTUALLY COME, THE DIRECTIVE STANDS UNASSAILABLY AS AN INDICIUM
OF THE PURPOSE OF THE POLICE IN HOLDING DAVIS.  AS THE DISSENTING
JUDGES BELOW STATED:  "THE INSTRUCTION NOT TO PERMIT ANYONE ACCESS TO
DAVIS AND NOT TO ALLOW HIM TO COMMUNICATE WITH THE OUTSIDE WORLD CAN
MEAN ONLY THAT IT WAS THE DETERMINATION OF HIS CUSTODIANS TO KEEP HIM
UNDER ABSOLUTE CONTROL WHERE THEY COULD SUBJECT HIM TO QUESTIONING AT
WILL IN THE MANNER AND TO THE EXTENT THEY SAW FIT, UNTIL HE WOULD
CONFESS."  339 F.2D, AT 780.  MOREOVER, THE UNCONTESTED FACT THAT NO
ONE OTHER THAN THE POLICE SPOKE TO DAVIS DURING THE 16 DAYS OF
DETENTION AND INTERROGATION THAT PRECEDED HIS CONFESSIONS IS
SIGNIFICANT IN THE DETERMINATION OF VOLUNTARINESS. 

DURING THE TIME DAVIS WAS HELD BY CHARLOTTE POLICE, HE WAS FED TWO
SANDWICHES, DESCRIBED BY ONE OFFICER AS "THIN" AND "DRY," TWICE A DAY. 
THIS FARE WAS OCCASIONALLY SUPPLEMENTED WITH PEANUTS AND OTHER "STUFF"
SUCH AS CIRARETTES BROUGHT TO HIM BY A POLICE OFFICER.  (FN6)  THE
DISTRICT COURT FOUND THAT THE FOOD WAS THE SAME SERVED PRISONERS HELD
OVERNIGHT IN THE DETENTION JAIL AND THAT THERE WAS NO ATTEMPT BY POLICE
TO WEAKEN DAVIS BY INADEQUATE FEEDING.  THE STATE CONTENDS THAT "TWO
SANDWICHES TWICE A DAY SUPPLEMENTED BY PEANUTS 'AND OTHER STUFF' WAS
NOT SUCH A POOR DIET, FOR AN IDLE PERSON DOING NO WORK, AS TO
CONSTITUTE A VIOLATION OF DUE PROCESS OF LAW."  BRIEF FOR RESPONDENT,
P. 7.    WE MAY READILY AGREE THAT THE RECORD DOES NOT SHOW ANY
DELIBERATE ATTEMPT TO STARVE DAVIS, COMPARE PAYNE V. ARKANSAS, 356 U.S.
560 (1958), AND THAT HIS DIET WAS NOT BELOW A MINIMUM NECESSARY TO
SUSTAIN HIM.  NONETHELESS, THE DIET WAS EXTREMELY LIMITED AND MAY WELL
HAVE HAD A SIGNIFICANT EFFECT ON DAVIS' PHYSICAL STRENGTH AND THEREFORE
HIS ABILITY TO RESIST.  THERE IS EVIDENCE IN THE RECORD, NOT REBUTTED
BY THE STATE, THAT DAVIS LOST 15 POUNDS DURING THE PERIOD OF
DETENTION. 

FROM THE TIME DAVIS WAS FIRST BROUGHT TO THE OVERNIGHT LOCKUP IN
CHARLOTTE ON SEPTEMBER 21, 1959, UNTIL HE CONFESSED ON THE 16TH DAY OF
DETENTION, POLICE OFFICERS CONDUCTED DAILY INTERROGATION SESSIONS WITH
HIM IN A SPECIAL INTERROGATION ROOM IN THE BUILDING.  (FN7)  THESE
SESSIONS EACH LASTED "FORTY-FIVE MINUTES OR AN HOUR OR MAYBE A LITTLE
MORE," ACCORDING TO ONE OF THE INTERROGATING OFFICERS.  CAPTAIN MCCALL
TESTIFIED THAT HE HAD ASSIGNED HIS ENTIRE FORCE OF 26 TO 29 MEN TO
INVESTIGATE THE CASE.  FROM THIS GROUP, DETECTIVES HUCKS AND FESPERMAN
HAD PRIMARY RESPONSIBILITY FOR INTERROGATING DAVIS.  THESE OFFICERS
TESTIFIED TO INTERROGATING HIM ONCE OR TWICE EACH DAY THROUGHOUT THE 16
DAYS.  THREE OTHER OFFICERS TESTIFIED THAT THEY CONDUCTED SEVERAL
INTERROGATION SESSIONS AT THE REQUEST OF HUCKS AND FESPERMAN.  ALTHOUGH
THE OFFICERS DENIED THAT DAVIS WAS INTERROGATED AT NIGHT, ONE TESTIFIED
THAT THE INTERROGATION PERIODS HE DIRECTED WERE HELD SOME TIME PRIOR TO
11 P.M.  (FN8)  CAPTAIN MCCALL ALSO INTERROGATED DAVIS ONCE. 

ACCORDING TO EACH OF THE OFFICERS, NO MENTION OF THE COOPER MURDER
WAS MADE IN ANY OF THE INTERROGATIONS BETWEEN SEPTEMBER 21 AND OCTOBER
3.  BETWEEN THESE DATES THEY INTERROGATED DAVIS EXTENSIVELY WITH
RESPECT TO THE STOLEN GOODS IN HIS POSSESSION.  IT IS CLEAR FROM THE
RECORD, HOWEVER, THAT THESE INTERROGATIONS WERE DIRECTLY RELATED TO THE
MURDER AND WERE NOT SIMPLY QUESTIONING AS TO UNRELATED FELONIES.  THE
EXPRESS PURPOSE OF THIS LINE OF QUESTIONING WAS TO BREAK DOWN DAVIS'
ALIBIS AS TO WHERE HE HAD OBTAINED THE ARTICLES.  BY DESTROYING DAVIS'
CONTENTION THAT HE HAD TAKEN THE ITEMS FROM HOMES SOME DISTANCE FROM
CHARLOTTE, DAVIS COULD BE PLACED AT THE SCENE OF THE CRIME.  (FN9) 

IN ORDER TO PUT PRESSURE ON DAVIS WITH RESPECT TO THESE ALIBIS,
POLICE TOOK HIM FROM THE LOCKUP ON OCTOBER 1 TO HAVE HIM POINT OUT
WHERE HE HAD STOLEN THE GOODS.  DAVIS HAD TOLD THE OFFICERS THAT HE
TOOK THE ITEMS FROM HOUSES ALONG THE RAILROAD LINE BETWEEN CANTON AND
ASHEVILLE.  TO DISPROVE THIS STORY, DAVIS WAS AROUSED AT 5 A.M. AND
DRIVEN TO CANTON.  THERE HIS LEG SHACKLES WERE REMOVED AND HE WALKED ON
THE RAILROAD TRACKS, HANDCUFFED TO AN OFFICER, 14 MILES TO ASHEVILLE. 
WHEN DAVIS WAS UNABLE TO RECOGNIZE ANY LANDMARK ALONG THE WAY OR ANY
HOUSE THAT HE HAD BURGLARIZED, AN OFFICER CONFRONTED HIM WITH THE
ACCUSATION THAT HIS STORY WAS A LIE.  THE STATE POINTS OUT THAT DAVIS
WAS WELL FED ON THIS DAY, THAT HE AGREED TO MAKE THE HIKE, AND CONTENDS
THAT IT WAS NOT SO PHYSICALLY EXHAUSTING AS TO BE COERCIVE.  THE
COERCIVE INFLUENCE WAS NOT, HOWEVER, SIMPLY THE PHYSICAL EXERTION OF
THE MARCH, BUT ALSO THE AVOWED PURPOSE OF THAT TREK - TO BREAK DOWN HIS
ALIBIS TO THE CRIME OF MURDER. 

ON THE AFTERNOON OF OCTOBER 3, TWO OFFICERS PLANNED AND CARRIED OUT A
RUSE TO ATTEMPT TO GET DAVIS TO INCRIMINATE HIMSELF IN SOME MANNER. 
THEY ENGAGED DAVIS IN IDLE CONVERSATION FOR 10 TO 20 MINUTES AND THEN
INQUIRED WHETHER HE WOULD LIKE TO GO OUT FOR "SOME FRESH AIR."  THEY
THEN TOOK DAVIS FROM THE JAIL AND DROVE HIM INTO THE CEMETERY TO THE
SCENE OF THE CRIME IN ORDER TO OBSERVE HIS REACTION. 

THE PURPOSE OF THESE EXCURSIONS AND OF ALL OF THE INTERROGATION
SESSIONS WAS KNOWN TO DAVIS.  ON THE DAY OF THE DRIVE TO THE CEMETERY,
THE INTERROGATORS SHIFTED TACTICS AND BEGAN QUESTIONING DAVIS
SPECIFICALLY ABOUT THE MURDER.  (FN10)  THEY ASKED HIM IF HE KNEW WHY
HE WAS BEING HELD.  HE STATED THAT HE BELIEVED IT WAS WITH RESPECT TO
THE COOPER MURDER.  POLICE THEN PRESSED HIM, ASKING, "WELL, DID YOU DO
IT?"  HE DENIED IT.  THE INTERROGATION SESSIONS CONTINUED THROUGH THE
NEXT TWO DAYS.  DAVIS CONSISTENTLY DENIED ANY KNOWLEDGE OF THE CRIME. 
(FN11) 

ON OCTOBER 6, DETECTIVES HUCKS AND FESPERMAN INTERROGATED DAVIS FOR
THE FINAL TIME.  LIEUTENANT SYKES, WHO HAD KNOWN DAVIS' FAMILY, BUT WHO
HAD NOT TAKEN PART IN ANY OF THE PRIOR INTERROGATION SESSIONS BECAUSE
HE HAD BEEN AWAY ON VACATION, ASKED TO SIT IN.  DURING THIS
INTERROGATION, AFTER REPEATED EARLIER DENIALS OF GUILT, DAVIS REFUSED
TO ANSWER QUESTIONS CONCERNING THE CRIME.  AT ABOUT 12:45 P.M.,
LIEUTENANT SYKES INQUIRED OF DAVIS IF HE WOULD LIKE TO TALK TO ANY OF
THE OFFICERS ALONE ABOUT MRS. COOPER.  DAVIS SAID HE WOULD LIKE TO TALK
TO SYKES.  THE OTHERS LEFT THE ROOM.  LIEUTENANT SYKES THEN ASKED DAVIS
IF HE HAD BEEN READING A TESTAMENT WHICH HE WAS HOLDING.  DAVIS REPLIED
THAT HE HAD.  SYKES ASKED DAVIS IF HE HAD BEEN PRAYING.  DAVIS REPLIED
THAT HE DID NOT KNOW HOW TO PRAY AND AGREED HE WOULD LIKE SYKES TO PRAY
FOR HIM.  THE LIEUTENANT OFFERED A SHORT PRAYER.  AT THAT POINT, AS THE
DISSENT BELOW APTLY PUT IT, THE PRAYERS OF THE POLICE OFFICER WERE
ANSWERED - DAVIS CONFESSED.  HE WAS DRIVEN TO THE CEMETERY AND ASKED TO
RE-ENACT THE CRIME.  POLICE THEN BROUGHT HIM BACK TO THE STATION WHERE
HE REPEATED THE CONFESSION TO SEVERAL OF THE OFFICERS.  IN THE PRESENCE
OF SIX OFFICERS, A TWO-PAGE STATEMENT OF THE CONFESSION DAVIS HAD MADE
WAS TRANSCRIBED.  ALTHOUGH BASED ON THE INFORMATION DAVIS HAD GIVEN
EARLIER, CAPTAIN MCCALL DICTATED THIS STATEMENT EMPLOYING HIS OWN
CHOICE OF FORMAT, WORDING, AND CONTENT.  HE PAUSED PERIODICALLY TO ASK
DAVIS IF HE AGREED WITH THE STATEMENT SO FAR.  EACH TIME DAVIS
ACQUIESCED.  DAVIS SIGNED THE STATEMENT.  (FN12) CAPTAIN MCCALL THEN
CONTACTED THE PRESS AND STATED, "HE FINALLY BROKE DOWN TODAY."  (FN13) 

THE CONCLUDING PARAGRAPHS OF THIS CONFESSION, DICTATED BY THE POLICE,
CONTAIN, ALONG WITH THE STANDARD DISCLAIMER THAT THE CONFESSION WAS
FREE AND VOLUNTARY, A STATEMENT THAT UNWITTINGLY SUMMARIZES THE
COERCIVE EFFECT ON DAVIS OF THE PROLONGED PERIOD OF DETENTION AND
INTERROGATION.  THEY READ: 

"IN CLOSING, I WANT TO SAY THIS.  I HAVE KNOWN IN MY OWN MIND WHAT
YOU PEOPLE WERE HOLDING ME FOR, AND ALL THE TIME I HAVE BEEN LYING IN
JAIL, IT HAS BEEN WORRYING ME, AND I KNEW THAT SOONER OR LATER, I WOULD
HAVE TO TELL YOU ABOUT IT. 

"I HAVE MADE THIS STATEMENT FREELY AND VOLUNTARILY.  CAPTAIN MCCALL
HAS DICTATED THIS STATEMENT IN THE PRESENCE OF DETECTIVES W.F. HUCKS,
E.F. FESPERMAN, H.C. GARDNER, C.E. DAVIS, AND DETECTIVE LIEUTENANT C.L.
SYKES.  I AM GLAD IT IS OVER, BECAUSE I HAVE BEEN GOING THRU A BIG
STRAIN." 

THE FACTS ESTABLISHED ON THE RECORD DEMONSTRATE THAT DAVIS WENT
THROUGH A PROLONGED PERIOD IN WHICH SUBSTANTIAL COERCIVE INFLUENCES
WERE BROUGHT TO BEAR UPON HIM TO EXTORT THE CONFESSIONS THAT MARKED THE
CULMINATION OF POLICE EFFORTS.  EVIDENCE OF EXTENDED INTERROGATION IN
SUCH A COERCIVE ATMOSPHERE HAS OFTEN RESULTED IN A FINDING OF
INVOLUNTARINESS BY THIS COURT.  E.G., CULOMBE V. CONNECTICUT, 367 U.S.
568 (1961); FIKES V. ALABAMA, 352 U.S. 191 (1957); TURNER V.
PENNSYLVANIA, 338 U.S. 62 (1949).  WE HAVE NEVER SUSTAINED THE USE OF
CONFESSION OBTAINED AFTER SUCH A LENGTHY PERIOD OF DETENTION AND
INTERROGATION AS WAS INVOLVED IN THIS CASE. 

THE FACT THAT EACH INDIVIDUAL INTERROGATION SESSION WAS OF RELATIVELY
SHORT DURATION DOES NOT MITIGATE THE SUBSTANTIAL COERCIVE EFFECT
CREATED BY REPEATED INTERROGATION IN THESE SURROUNDINGS OVER 16 DAYS. 
SO FAR AS DAVIS COULD HAVE KNOWN, THE INTERROGATION IN THE OVERNIGHT
LOCKUP MIGHT STILL BE GOING ON TODAY HAD HE NOT CONFESSED.  MOREOVER,
AS WE HAVE NOTED ABOVE, THE FACT THAT POLICE DID NOT DIRECTLY ACCUSE
HIM OF THE CRIME UNTIL AFTER A SUBSTANTIAL PERIOD OF ERODING HIS WILL
TO RESIST BY A TANGENTIAL LINE OF INTERROGATION DID NOT REDUCE THE
COERCIVE INFLUENCE BROUGHT TO BEAR UPON HIM.  SIMILARLY, IT IS
IRRELEVANT TO THE CONSIDERATION OF VOLUNTARINESS THAT DAVIS WAS AN
ESCAPEE FROM A PRISON CAMP.  OF COURSE DAVIS WAS NOT ENTITLED TO BE
RELEASED.  BUT THIS DOES NOT ALLEVIATE THE COERCIVE EFFECT OF HIS
EXTENDED DETENTION AND REPEATED INTERROGATION WHILE ISOLATED FROM
EVERYONE BUT THE POLICE IN THE POLICE JAIL. 

IN LIGHT OF ALL OF THE FACTORS DISCUSSED ABOVE, THE CONCLUSION IS
INEVITABLE - DAVIS' CONFESSIONS WERE THE INVOLUNTARY END PRODUCT OF
COERCIVE INFLUENCES AND ARE THUS CONSTITUTIONALLY INADMISSIBLE IN
EVIDENCE.  ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT MUST BE REVERSED AND THE CASE REMANDED TO THE DISTRICT
COURT.  ON REMAND, THE DISTRICT COURT SHOULD ENTER SUCH ORDERS AS ARE
APPROPRIATE AND CONSISTENT WITH THIS OPINION, ALLOWING THE STATE A
REASONABLE TIME IN WHICH TO RETRY PETITIONER.  REVERSED AND REMANDED. 

FN1  THE WRITTEN CONFESSION WHICH DAVIS SUBSEQUENTLY SIGNED CONTAINED
A NOTATION THAT HE WAS ADVISED HE DID NOT HAVE TO MAKE A STATEMENT AND
THAT ANY STATEMENT MADE COULD BE USED FOR OR AGAINST HIM IN COURT.  A
POLICE OFFICER TESTIFIED AT TRIAL THAT HE TOLD DAVIS IF THE STATEMENT
WAS NOT THE TRUTH HE DID NOT HAVE TO SIGN IT. 

FN2  THE STATE ADDS IN ITS BRIEF:  "SURELY, DAVIS WAS NOT SUCH A
SENSITIVE PERSON, AFTER ALL HIS YEARS IN PRISON, THAT 'CUSSING' AND
BEING CALLED 'NIGGER' CONSTITUTED ANY DEGREE OF FEAR OR COERCION." 
BRIEF FOR RESPONDENT, P. 8. 

FN3  SOME OF THE OFFICERS TESTIFIED THAT THEY HAD NO IDEA WHY DAVIS
WAS BEING BROUGHT TO CHARLOTTE EXCEPT AS AN ESCAPEE OR IN RELATION TO
THE STOLEN GOODS IN HIS POSSESSION.  CAPTAIN MCCALL, WHO WAS IN CHARGE
OF THE ENTIRE DETECTIVE DIVISION OF THE CHARLOTTE POLICE, STATED AT
TRIAL, HOWEVER:  "HE WAS BROUGHT OVER HERE FOR THE PURPOSE OF BEING AN
ESCAPED CONVICT AND AS A LIKELY SUSPECT IN THE MURDER CASE  ...  .  WE
WERE NOT HOLDING HIM FOR THE STATE WHEN HE WAS IN GASTON COUNTY JAIL,
BUT WERE MAKING AN INVESTIGATION IN REFERENCE TO OUR MURDER CASE."  AT
THE HABEAS CORPUS HEARING, HE TESTIFIED:  "HE WAS IN OUR CUSTODY
PRIMARILY BECAUSE HE WAS A SUSPECT IN MRS. COOPER'S CASE  ...  ." 
DAVIS' PRIOR OFFENSES INCLUDED AN ASSAULT IN THE VICINITY OF THE
CEMETERY, AND HIS HOME HAD BEEN NEARBY.  SEE ALSO NOTE 9, INFRA. 

FN4 THE ONLY EXCEPTION TO THIS INCARCERATION WAS A DAY SPENT NEAR
ASHEVILLE, DESCRIBED INFRA, AND A NIGHT IN THE ASHEVILLE JAIL. 

FN5  TRANSCRIPT OF EVIDENCE ON APPEAL.  HIS TESTIMONY AT THE HABEAS
CORPUS HEARING WAS VERY SIMILAR.  HE FIRST STATED SOMEWHAT
CONFUSINGLY: 

"INASMUCH AS HE WAS AN ESCAPED CONVICT, I WOULD HAVE ASKED THEM WHAT
WAS THE PURPOSE OF PLACING THIS DO NOT ALLOW ANYONE TO SEE DAVIS OR
ALLOW HIM TO USE THE TELEPHONE.  TO BE PERFECTLY HONEST WITH YOU, WHY
PUT IT IN WRITING WHEN YOU CAN DO THE SAME THING VERBALLY.  I MEAN
THERE IS NO QUESTION ABOUT IT.  THE QUESTION IS THAT EACH INDIVIDUAL IS
ALLOWED DUE PROCESS OF LAW.  AND IF THEY HAD BEEN ASKED IN ANY WAY OR
IF I HAD BEEN ASKED FOR ANYONE TO SEE ELMER, THEY WOULD HAVE BEEN GIVEN
PERMISSION.  NOBODY ASKED TO MY KNOWLEDGE." 

HE LATER TESTIFIED: 

"I DIDN'T WANT ANYBODY TO TALK TO HIM WITHOUT ME KNOWING IT AS HE WAS
A PRISONER OF THE STATE OF NORTH CAROLINA, AND HE WAS A C GRADE
PRISONER AND NOT ENTITLED TO VISITORS WITHOUT THE PERMISSION OF THE
WARDEN." 

FN6  DURING THE 16-DAY PERIOD, THIS DIET VARIED ONLY FOR TWO MEALS ON
THE DAY HE WAS TAKEN TO ASHEVILLE AND ON ONE OTHER OCCASION WHEN AN
OFFICER BROUGHT HIM TWO HAMBURGERS. 

FN7  AS THE POLICE CHIEF EXPLAINED:  "AN INTERROGATION ROOM SHOULD BE
VOID OF ALL MATERIALS SO THAT YOU CAN TALK TO A MAN IN COMPLETE QUIET
AND KEEP HIS ATTENTION." 

FN8  AFTER THE OFFICER ADMITTED THAT THE SESSIONS MIGHT HAVE BEEN UP
TO 11 P.M., THE FOLLOWING QUESTION WAS POSED AND ANSWERED: 

"Q.  WELL, HE COULD HAVE BEEN INTERROGATED BY YOU AT NIGHT, COULDN'T
HE? 

"A.  I'LL SAY NO AND I'LL SAY YES." 

ANOTHER OFFICER TESTIFIED AS FOLLOWS: 

"Q.  AT THE TIME YOU INTERROGATED HIM UP IN THE POLICE DEPARTMENT,
WAS IT DAYLIGHT OR DARK? 

"A.  WELL, IT COULD HAVE BEEN BOTH, IF I REMEMBER CORRECTLY.  I'LL
JUST LEAVE IT THAT WAY: IT COULD HAVE BEEN BOTH, BECAUSE THAT'S THE WAY
IT IS." 

FN9  FURTHER GRAPHIC EVIDENCE OF THE OBVIOUS PURPOSE OF THE POLICE IN
DETAINING AND REPEATEDLY INTERROGATING DAVIS IS FOUND IN STATEMENTS
MADE TO THE PRESS DURING THIS PERIOD: 

"DETECTIVE CAPT. W.A. MCCALL SAID DAVIS HAD NOT IMPLICATED HIMSELF IN
THE SUNDAY SLAYING. 

"'WE'RE STILL TALKING TO HIM,' HE SAID."  CHARLOTTE OBSERVER, SEPT.
23, 1959, B-1. 

"A NEGRO MAN WAS SEEN CROUCHING IN THE BUSHES AT ELMWOOD CEMETERY
SHORTLY BEFORE THE RAPE-SLAYING OF AN ELDERLY WIDOW THERE SUNDAY
AFTERNOON, CHARLOTTE DETECTIVES SAID WEDNESDAY. 

     *         *         *         *     * 

"CHARLOTTE DETECTIVES  ...  CONTINUED INTERROGATING E.J. DAVIS, THE
ESCAPEE WHO WAS ARRESTED IN BELMONT MONDAY NIGHT. 

     *         *         *         *         * 

"'WE QUESTIONED HIM TWICE TODAY,' CAPT. MCCALL SAID WEDNESDAY NIGHT. 
'HE HAS GIVEN US SOME CONFLICTING INFORMATION, AND WE'RE CHECKING ALL
HIS ALIBIS.' 

"'WE'LL GIVE HIM A LIE DETECTOR TEST IF NECESSARY.  BUT SO FAR WE
HAVE HAD NO POSITIVE RESULTS FROM OUR INTERROGATION.'"  CHARLOTTE
OBSERVER, SEPT. 24, 1959, B-1. 

"'EVERYBODY  ...  EVERYBODY IS A SUSPECT IN THIS CASE UNTIL WE SIGN A
MURDER WARRANT.' 

"DETECTIVE CAPT. W.A. MCCALL SPOKE THESE WORDS THURSDAY AS POLICE
CONTINUED THEIR SEARCH FOR THE MAN WHO KILLED AND RAPED A 78-YEAR-OLD
WIDOW IN A LOCAL GRAVEYARD SUNDAY AFTERNOON. 

     *         *         *    *         * 

"BUT THE MAIN EMPHASIS THURSDAY CONTINUED TO BE ON E.J. DAVIS, A 32
YEAR-OLD NEGRO PRISON ESCAPEE WHO WAS CONVICTED OF RAPING AN ELDERLY
WOMAN HERE IN 1949.    "DAVIS WAS QUESTIONED AT LENGTH THURSDAY FOR THE
THIRD STRAIGHT DAY. 

"'WE KNOW HE'S TELLING US SOME LIES,' CAPT. MCCALL SAID.  'WE'RE
CHECKING EVERY ALIBI AND EVERY STORY HE GIVES US, AND SOME OF THEM JUST
AREN'T TRUE. 

"'WE DON'T HAVE ENOUGH FACTS YET TO GIVE HIM A LIE DETECTOR TEST,
THOUGH.'"  CHARLOTTE OBSERVER, SEPT. 25, 1959, B-1. 

"BEING QUESTIONED PRESENTLY IN CONNECTION WITH THE SLAYING OF 78-YEAR
OLD MRS. FOY BELLE COOPER IS E.J. DAVIS, A 32-YEAR-OLD NEGRO ESCAPEE
WHO WAS ARRESTED MONDAY IN BELMONT.  DAVIS HAS A PRIOR RECORD FOR RAPE
IN 1949."  CHARLOTTE OBSERVER, SEPT. 26, 1959, B-1.    "CHARLOTTE
DETECTIVES CONCENTRATED MONDAY ON A 32-YEAR-OLD ESCAPED CONVICT IN AN
EFFORT TO FIND WHO RAPED AND MURDERED A 78-YEAR-OLD WIDOW HERE A WEEK
AGO. 

     *         *         *         *     * 

"DAVIS HAS BEEN QUESTIONED CLOSELY SEVERAL TIMES IN CONNECTION WITH
THE RAPE-SLAYING OF MRS. FOY BELLE COOPER, 78."  CHARLOTTE OBSERVER,
SEPT. 29, 1959, 14-A. 

"CITY DETECTIVES WERE STILL PROBING A MAN'S ALIBIS FOR LOOPHOLES
FRIDAY IN AN INVESTIGATION INTO THE RAPE-SLAYING OF A 78-YEAR-OLD WHITE
WOMAN IN CHARLOTTE SEPT. 20. 

"THE SUSPECT IS AN ESCAPED CONVICT, E.J. DAVIS  ...  ."  CHARLOTTE
OBSERVER, OCT. 3, 1959, B-1. 

FN10  ALTHOUGH THE DISTRICT COURT FOUND THAT POLICE DID NOT
INTERROGATE DAVIS DIRECTLY ABOUT THE COOPER CASE UNTIL OCTOBER 3, THE
TESTIMONY WAS NOT UNIFORM ON THIS POINT.  THERE IS TESTIMONY IN THE
RECORD BY POLICE OFFICERS THAT THE FIRST INTERROGATION ABOUT THE MURDER
WAS ON THE FRIDAY BEFORE HE CONFESSED - OCTOBER 2, 1959.  SEE 253 N.C.
86, 90, 116 S.E.2D 365, 367.  SEE ALSO CHARLOTTE OBSERVER, OCT. 7,
1959, A-1, OCT. 8, 1959, B-1. 

FN11  ALTHOUGH THE RECORD DOES NOT SHOW THE TENOR OF THE
INTERROGATION ON OCTOBER 4, IT IS ESTABLISHED THAT DAVIS WAS
INTERROGATED EVERY DAY AND THAT HE DENIED ANY CONNECTION WITH THE CRIME
UNTIL OCTOBER 6. 

FN12  AFTER DAVIS SIGNED THE WRITTEN CONFESSION, POLICE CHIEF JESSE
JAMES APPEARED TO QUESTION DAVIS ABOUT HIS TREATMENT.  IN RESPONSE TO
THIS QUESTIONING, DAVIS STATED THAT HE HAD BEEN TREATED ALL RIGHT.  THE
FOLLOWING MORNING, A MINISTER WHO KNEW DAVIS' FAMILY AND HAD READ OF
HIS ARREST 16 DAYS EARLIER IN THE NEWSPAPER, APPEARED TO TALK TO
DAVIS.  HE TESTIFIED THAT DAVIS TOLD HIM HIS TREATMENT HAD BEEN VERY
FINE AND THAT EVERYONE HAD BEEN COURTEOUS AND KIND TO HIM.  THE
MINISTER INDICATED FURTHER THAT HE OFTEN COOPERATED WITH POLICE IN SUCH
MATTERS. 

FN13  CHARLOTTE OBSERVER, OCT. 7, 1959, A-1-2. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE RATIONALE OF THE COURT'S OPINION IS THAT DAVIS, "AN IMPOVERISHED
NEGRO WITH A THIRD OR FOURTH GRADE EDUCATION," WAS OVERBORNE WHEN HE
GAVE HIS CONFESSION TO THE RAPE-MURDER. 

DAVIS, A 39-YEAR-OLD MAN, ADMITS THAT HE HAS "BEEN IN A LOT OF
JAILS."  THE RECORD INDICATES THAT HIS INTELLIGENCE WAS FAR ABOVE THAT
OF A FOURTH GRADER.  HIS OWN TESTIMONY AT HIS TRIAL REVEALS A HIGHLY
RETENTIVE MEMORY.  HE DESCRIBED IN DETAIL HIS NUMEROUS ARRESTS,
CONVICTIONS, PRISON SENTENCES, AND ESCAPES OVER A 15-YEAR SPAN. 
FURTHERMORE, DURING THE FEDERAL HABEAS CORPUS HEARING DAVIS SHOWED HIS
AWARENESS OF LEGAL TECHNICALITIES.  AT ONE POINT THE PROSECUTOR SOUGHT
TO CROSS-EXAMINE DAVIS AS TO WHETHER HE HAD "BEEN TRIED AND CONVICTED
OF VARIOUS OFFENSES."  DESPITE THE FACT THAT THERE WAS NO OBJECTION TO
THE QUESTION BY HIS LAWYER, DAVIS TURNED TO THE JUDGE AND SAID: "YOUR
HONOR, DO I HAVE TO ANSWER THAT QUESTION?  THIS IS IN THE PAST."  AFTER
SOME ARGUMENT ABOUT THE ADMISSIBILITY OF THE EVIDENCE, THE JUDGE
RECESSED THE HEARING FOR 10 MINUTES TO GIVE COUNSEL AN OPPORTUNITY TO
PRESENT LEGAL AUTHORITY.  DAVIS' OBJECTION WAS THEREAFTER SUSTAINED. 

THIS CASE GOES AGAINST THE GRAIN OF OUR PRIOR DECISIONS.  THE COURT
FIRST CONFESSES THAT THE RULE ADOPTED UNDER THE FIFTH AMENDMENT IN
MIRANDA V. ARIZONA, ANTE, P. 436, I.E., THAT AN ACCUSED MUST BE
EFFECTIVELY ADVISED OF HIS RIGHT TO COUNSEL BEFORE CUSTODIAL
INTERROGATION, IS NOT RETROACTIVE AND THEREFORE DOES NOT APPLY TO THIS
CASE.  SEE JOHNSON V. NEW JERSEY, ANTE, P. 719.  HOWEVER, IT OBTAINS
THE SAME RESULT BY READING THE DUE PROCESS CLAUSE AS REQUIRING THAT
HEAVY WEIGHT MUST BE GIVEN THE FAILURE OF THE STATE TO AFFORD COUNSEL
DURING INTERROGATION AS "A SIGNIFICANT FACTOR IN CONSIDERING THE
VOLUNTARINESS OF STATEMENTS."  THROUGH THIS CHANGE OF PACE DAVIS'
GUILTY HANDWRITING IS STAMPED A FORGERY AND HIS CONVICTION IS
REVERSED. 

I HAVE FOUND NO CASE DEALING WITH LENGTHY DETENTION BY STATE OFFICERS
WHICH SUPPORTS REVERSAL HERE.  THE COURT CITES THREE:  CULOMBE V.
CONNECTICUT, 367 U.S. 568 (1961); FIKES V. ALABAMA, 352 U.S. 191
(1957); AND TURNER V. PENNSYLVANIA, 338 U.S. 62 (1949), ALL OF WHICH
WERE TREATED IN TERMS OF DUE PROCESS.  BUT THESE CASES ARE CLEARLY
DISTINGUISHABLE ON THEIR FACTS WITH RESPECT TO THE CHARACTER OF THE
ACCUSED AND THE CIRCUMSTANCES UNDER WHICH INTERROGATION TOOK PLACE. 
CULOMBE WAS A "MENTAL DEFECTIVE OF THE MORON CLASS" WHO HAD TWICE BEEN
IN STATE MENTAL INSTITUTIONS.  HE HAD NO PREVIOUS CRIMINAL RECORD. 
FIKES WAS "A SCHIZOPHRENIC AND HIGHLY SUGGESTIBLE."  HE HAD ONLY ONE
PRIOR CONVICTION - FOR BURGLARY.  THE INTERROGATION OF BOTH THESE MEN
WAS MORE CONCENTRATED THAN THAT OF DAVIS.  TURNER WAS SUBJECTED TO
CONTINUAL INTERROGATION BY A RELAY OF OFFICERS, FALSELY TOLD THAT
OTHERS HAD IMPLICATED HIM, AND NOT PERMITTED TO SEE HIS FAMILY OR
FRIENDS.  THE PROSECUTOR ADMITTED THAT HIS ARRAIGNMENT WAS DELAYED, IN
VIOLATION OF A STATE STATUTE, UNTIL THE POLICE COULD SECURE A
CONFESSION.  TURNER HAD NO PRIOR CRIMINAL RECORD. 

ON THE OTHER HAND, DAVIS HAD A LONG CRIMINAL RECORD.  AT THE TIME OF
HIS ARREST HE WAS AN ESCAPEE FROM STATE PRISON, AND SO COULD BE
PROPERLY HELD IN CUSTODY.  IT IS THEREFORE WRONG TO COMPARE POLICE
CONDUCT HERE TO THE DETENTION OF AN ORDINARY SUSPECT UNTIL HE
CONFESSES.  MOREOVER, THE SPORADIC INTERROGATION OF DAVIS CAN HARDLY BE
DENOMINATED AS SUSTAINED OR OVERBEARING PRESSURE.  FROM THE RECORD IT
APPEARS THAT HE WAS SIMPLY QUESTIONED FOR ABOUT AN HOUR EACH DAY BY A
COUPLE OF DETECTIVES.  THERE WAS NO PROTRACTED GRILLING.  NOR DID THE
POLICE OFFICERS OPERATE IN RELAYS. 

THE COURT MAKES MUCH OF AN "ARREST SHEET" WHICH INFORMED THE JAILER
THAT DAVIS WAS BEING HELD IN CONNECTION WITH THE MURDER OF MRS. COOPER
AND THAT HE WAS AN ESCAPED CONVICT.  THIS SHEET FURTHER DIRECTED:  "DO
NOT ALLOW ANYONE TO SEE DAVIS.  OR ALLOW HIM TO USE TELEPHONE."  NO
WITNESS WAS ABLE TO IDENTIFY THE AUTHOR OF THIS NOTATION.  IT IS TRUE
CAPTAIN MCCALL SAID THAT HE "MIGHT" HAVE DONE IT.  BUT HE SAID THAT,
EVEN SO, IT WAS MERELY A NOTICE TO THE JAILER THAT DAVIS WAS AN ESCAPEE
AND, THEREFORE, NOT PERMITTED TO SEE OR TALK TO ANYONE.  ON THE
CONTRARY, HOWEVER, THE RECORD SHOWS THAT DAVIS WAS NOT HELD
INCOMMUNICADO.  UPON HIS REQUEST, THE POLICE LOCATED HIS SISTER THE
SECOND DAY AFTER HIS ARREST, INFORMED HER THAT DAVIS WAS IN CUSTODY,
AND ON TWO SEPARATE OCCASIONS INVITED HER TO VISIT HIM.  THE OFFICERS
FIRST CALLED ON HIS SISTER FOR THE SOLE PURPOSE OF TELLING HER THAT
DAVIS WISHED TO SEE HER.  A FEW DAYS LATER THEY ALSO ASKED WHETHER SHE
WAS MISSING ANY OF THE CLOTHES WHICH WERE FOUND ON DAVIS.  HE MADE NO
REQUEST TO SEE ANYONE ELSE.  MOREOVER, IT IS UNDENIED THAT VISITORS
FROM CHURCHES AND SCHOOLS ENTERED THE JAIL WITH SCRIPTURE PAMPHLETS. 
AND DAVIS HAD ONE OF THESE BOOKLETS IN HIS HANDS THE DAY OF HIS
CONFESSION. 

WITNESSES TESTIFIED THAT DAVIS HAD TOLD THEM THAT HIS TREATMENT WAS
"VERY FINE AND THAT EVERYBODY WAS COURTEOUS AND KIND TO HIM."  AS FOR
THE HIKE OF SOME 14 MILES ALONG THE RAILROAD TRACKS, DAVIS DESCRIBED
THE PURPOSE OF IT CLEARLY: 

"WELL, WE HAD SOME CLOTHES AND THINGS, WHAT I TOOK UP THERE, AND WE
WANTED TO GO UP THERE AND GET IT STRAIGHTENED OUT; BUT THE PLACE WHERE
I TOOK THE STUFF I COULDN'T LOCATE THE PLACE BECAUSE IT WAS AT NIGHT,
YOU UNDERSTAND, WHEN I TOOK THE CLOTHES AND THINGS OFF THE LINE." 

AS TO THE "PRAYER" OF LIEUTENANT SYKES, THERE IS NO TESTIMONY
WHATEVER THAT IT WAS IN ANY WAY "COERCIVE."  INDEED, ONE WITNESS,
DAVIS' PREACHER, QUOTED HIM AS SAYING "THAT HE HAD NOTHING BUT PRAISE
FOR LIEUTENANT SYKES, ESPECIALLY IN THE WAY IN WHICH HE DEALT WITH
HIM."  AT ANOTHER POINT THE PARSON TESTIFIED:  "ELMER TOLD ME THAT HE
APPRECIATED THE PRAYER OF LIEUTENANT SYKES."  THE COURT DISREGARDS THE
FACT THAT DAVIS HAD A COPY OF THE SCRIPTURES IN HIS HANDS WHEN SYKES
CAME INTO THE ROOM AND CONTINUED TO HOLD THEM AS THEY TALKED.  AFTER
SYKES - A LAY PREACHER - NOTICED THE TESTAMENT, IT WAS ONLY NATURAL
THAT THE CONVERSATION WOULD TURN TO THE SCRIPTURES AND PRAYER.  SYKES
ASKED IF DAVIS WISHED HIM TO GIVE A PRAYER.  DAVIS SAID THAT HE DID,
AND SYKES PRAYED WITH HIM.  THE PRAYER WAS ENTIRELY UNSUGGESTIVE. 

IT IS SAID ALSO THAT THE FOOD WAS NOT SUFFICIENT.  BUT THE
UNCONTRADICTED EVIDENCE IS THAT DAVIS NEVER COMPLAINED ABOUT THE MEALS
HE RECEIVED WHILE IN CUSTODY.*  DAVIS TESTIFIED THAT HE LOST 15 POUNDS
IN JAIL.  BUT THIS DOES NOT WARRANT A FINDING THAT HE WAS IMPROPERLY
FED.  NO ONE COULD CONTRADICT OR SUBSTANTIATE THIS CONTENTION BECAUSE
THE RECORD DOES NOT SHOW THAT HIS WEIGHT WAS TAKEN UPON ARREST.  AND
DAVIS WAS FOUND TO BE UNTRUTHFUL IN MOST OF HIS TESTIMONY.  INDEED,
DAVIS DID NOT PAINT HIS TREATMENT WITH A BLACK BRUSH UNTIL HIS HABEAS
CORPUS HEARING, ALTHOUGH HE TESTIFIED AT LENGTH AT HIS TRIAL IN THE
STATE COURT. 

*ON THE MORNING THAT DAVIS LEFT THE JAIL TO WALK ALONG THE RAILROAD
TRACKS, A POLICE OFFICER ASKED HIM "IF HE WAS HUNGRY," AND HIS NATURAL
REPLY AT THAT TIME OF DAY WAS "YES."  THE OFFICER THEN GAVE DAVIS
BREAKFAST. 

UNDER THESE CIRCUMSTANCES, IT APPEARS TO ME THAT THE TRIAL JUDGE'S
FINDINGS CANNOT BE FOUND TO BE CLEARLY ERRONEOUS.  TO THE CONTRARY,
THEY ARE FULLY SUPPORTED BY THE ENTIRE RECORD.  I WOULD AFFIRM. 
..END :






















SCHMERBER V. CALIFORNIA 384 U.S. 757 


NO. 658.  ARGUED APRIL 25, 1966.  - DECIDED JUNE 20, 1966.  - AFFIRMED. 


PETITIONER WAS HOSPITALIZED FOLLOWING AN ACCIDENT INVOLVING AN
AUTOMOBILE WHICH HE HAD APPARENTLY BEEN DRIVING.  A POLICE OFFICER
SMELLED LIQUOR ON PETITIONER'S BREATH AND NOTICED OTHER SYMPTOMS OF
DRUNKENNESS AT THE ACCIDENT SCENE AND AT THE HOSPITAL, PLACED HIM UNDER
ARREST, AND INFORMED HIM THAT HE WAS ENTITLED TO COUNSEL, THAT HE COULD
REMAIN SILENT, AND THAT ANYTHING HE SAID WOULD BE USED AGAINST HIM.  AT
THE OFFICER'S DIRECTION A PHYSICIAN TOOK A BLOOD SAMPLE FROM PETITIONER
DESPITE HIS REFUSAL ON ADVICE OF COUNSEL TO CONSENT THERETO.  A REPORT
OF THE CHEMICAL ANALYSIS OF THE BLOOD, WHICH INDICATED INTOXICATION,
WAS ADMITTED IN EVIDENCE OVER OBJECTION AT PETITIONER'S TRIAL FOR
DRIVING WHILE INTOXICATED.  PETITIONER WAS CONVICTED AND THE CONVICTION
WAS AFFIRMED BY THE APPELLATE COURT WHICH REJECTED HIS CLAIMS OF DENIAL
OF DUE PROCESS, OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION, OF HIS
RIGHT TO COUNSEL, AND OF HIS RIGHT NOT TO BE SUBJECTED TO UNREASONABLE
SEARCHES AND SEIZURES.  HELD: 

1.  BREITHAUPT V. ABRAM, 352 U.S. 432, IN WHICH A CLAIM OF DENIAL OF
DUE PROCESS OF LAW WAS REJECTED IN A SIMILAR SITUATION IS CONTROLLING
AS TO THE DUE PROCESS ASPECT.  PP. 759-760. 

2.  THE PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT AVAILABLE TO AN
ACCUSED IN A CASE SUCH AS THIS, WHERE THERE IS NOT EVEN A SHADOW OF
COMPULSION TO TESTIFY AGAINST HIMSELF, OR OTHERWISE PROVIDE THE STATE
WITH EVIDENCE OF A TESTIMONIAL OR COMMUNICATIVE NATURE.  PP. 760-765. 

3.  PETITIONER'S LIMITED CLAIM, THAT HE WAS DENIED HIS RIGHT TO
COUNSEL BY VIRTUE OF THE WITHDRAWAL OF BLOOD OVER HIS OBJECTION ON HIS
COUNSEL'S ADVICE, IS REJECTED, SINCE HE ACQUIRED NO RIGHT MERELY
BECAUSE COUNSEL ADVISED THAT HE COULD ASSERT ONE.  PP. 765-766. 

4.  IN VIEW OF THE SUBSTANTIAL INTERESTS IN PRIVACY INVOLVED,
PETITIONER'S RIGHT TO BE FREE OF UNREASONABLE SEARCHES AND SEIZURES
APPLIES TO THE WITHDRAWAL OF HIS BLOOD, BUT UNDER THE FACTS IN THIS
CASE THERE WAS NO VIOLATION OF THAT RIGHT.  PP. 766-772. 

(A)  THERE WAS PROBABLE CAUSE FOR THE ARREST AND THE SAME FACTS AS
ESTABLISHED PROBABLE CAUSE JUSTIFIED THE POLICE IN REQUIRING PETITIONER
TO SUBMIT TO A TEST OF HIS BLOOD-ALCOHOL CONTENT.  IN VIEW OF THE TIME
REQUIRED TO BRING PETITIONER TO A HOSPITAL, THE CONSEQUENCES OF DELAY
IN MAKING A BLOOD TEST FOR ALCOHOL, AND THE TIME NEEDED TO INVESTIGATE
THE ACCIDENT SCENE, THERE WAS NO TIME TO SECURE A WARRANT, AND THE
CLEAR INDICATION THAT IN FACT EVIDENCE OF INTOXICATION WOULD BE FOUND
RENDERED THE SEARCH AN APPROPRIATE INCIDENT OF PETITIONER'S ARREST. 
PP. 770-771. 

(B)  THE TEST CHOSEN TO MEASURE PETITIONER'S BLOOD-ALCOHOL LEVEL WAS
A REASONABLE ONE, SINCE IT WAS AN EFFECTIVE MEANS OF DETERMINING
INTOXICATION, IMPOSED VIRTUALLY NO RISK, TRAUMA OR PAIN, AND WAS
PERFORMED IN A REASONABLE MANNER BY A PHYSICIAN IN A HOSPITAL.  P.
771. 

SCHMERBER V. CALIFORNIA. 

CERTIORARI TO THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF LOS ANGELES. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED IN LOS ANGELES MUNICIPAL COURT OF THE
CRIMINAL OFFENSE OF DRIVING AN AUTOMOBILE WHILE UNDER THE INFLUENCE OF
INTOXICATING LIQUOR.  (FN1)  HE HAD BEEN ARRESTED AT A HOSPITAL WHILE
RECEIVING TREATMENT FOR INJURIES SUFFERED IN AN ACCIDENT INVOLVING THE
AUTOMOBILE THAT HE HAD APPARENTLY BEEN DRIVING.  (FN2)  AT THE
DIRECTION OF A POLICE OFFICER, A BLOOD SAMPLE WAS THEN WITHDRAWN FROM
PETITIONER'S BODY BY A PHYSICIAN AT THE HOSPITAL.  THE CHEMICAL
ANALYSIS OF THIS SAMPLE REVEALED A PERCENT BY WEIGHT OF ALCOHOL IN HIS
BLOOD AT THE TIME OF THE OFFENSE WHICH INDICATED INTOXICATION, AND THE
REPORT OF THIS ANALYSIS WAS ADMITTED IN EVIDENCE AT THE TRIAL. 
PETITIONER OBJECTED TO RECEIPT OF THIS EVIDENCE OF THE ANALYSIS ON THE
GROUND THAT THE BLOOD HAD BEEN WITHDRAWN DESPITE HIS REFUSAL, ON THE
ADVICE OF HIS COUNSEL, TO CONSENT TO THE TEST.  HE CONTENDED THAT IN
THAT CIRCUMSTANCE THE WITHDRAWAL OF THE BLOOD AND THE ADMISSION OF THE
ANALYSIS IN EVIDENCE DENIED HIM DUE PROCESS OF LAW UNDER THE FOURTEENTH
AMENDMENT, AS WELL AS SPECIFIC GUARANTEES OF THE BILL OF RIGHTS SECURED
AGAINST THE STATES BY THAT AMENDMENT:  HIS PRIVILEGE AGAINST SELF
INCRIMINATION UNDER THE FIFTH AMENDMENT; HIS RIGHT TO COUNSEL UNDER THE
SIXTH AMENDMENT; AND HIS RIGHT NOT TO BE SUBJECTED TO UNREASONABLE
SEARCHES AND SEIZURES IN VIOLATION OF THE FOURTH AMENDMENT.  THE
APPELLATE DEPARTMENT OF THE CALIFORNIA SUPERIOR COURT REJECTED THESE
CONTENTIONS AND AFFIRMED THE CONVICTION.  (FN3)  IN VIEW OF
CONSTITUTIONAL DECISIONS SINCE WE LAST CONSIDERED THESE ISSUES IN
BREITHAUPT V. ABRAM, 352 U.S. 432 - SEE ESCOBEDO V. ILLINOIS, 378 U.S.
478; MALLOY V. HOGAN, 378 U.S. 1, AND MAPP V. OHIO, 367 U.S. 643 - WE
GRANTED CERTIORARI.  382 U.S. 971.  WE AFFIRM. 

                                            I.

                      THE DUE PROCESS CLAUSE CLAIM. 

BREITHAUPT WAS ALSO A CASE IN WHICH POLICE OFFICERS CAUSED BLOOD TO
BE WITHDRAWN FROM THE DRIVER OF AN AUTOMOBILE INVOLVED IN AN ACCIDENT,
AND IN WHICH THERE WAS AMPLE JUSTIFICATION FOR THE OFFICER'S CONCLUSION
THAT THE DRIVER WAS UNDER THE INFLUENCE OF ALCOHOL.  THERE, AS HERE,
THE EXTRACTION WAS MADE BY A PHYSICIAN IN A SIMPLE, MEDICALLY
ACCEPTABLE MANNER IN A HOSPITAL ENVIRONMENT.  THERE, HOWEVER, THE
DRIVER WAS UNCONSCIOUS AT THE TIME THE BLOOD WAS WITHDRAWN AND HENCE
HAD NO OPPORTUNITY TO OBJECT TO THE PROCEDURE.  WE AFFIRMED THE
CONVICTION THERE RESULTING FROM THE USE OF THE TEST IN EVIDENCE,
HOLDING THAT UNDER SUCH CIRCUMSTANCES THE WITHDRAWAL DID NOT OFFEND
"THAT 'SENSE OF JUSTICE' OF WHICH WE SPOKE IN ROCHIN V. CALIFORNIA, 342
U.S. 165."  352 U.S., AT 435.  BREITHAUPT THUS REQUIRES THE REJECTION
OF PETITIONER'S DUE PROCESS ARGUMENT, AND NOTHING IN THE CIRCUMSTANCES
OF THIS CASE (FN4) OR IN SUPERVENING EVENTS PERSUADES US THAT THIS
ASPECT OF BREITHAUPT SHOULD BE OVERRULED. 

                                 II.

   THE PRIVILEGE AGAINST SELF-INCRIMINATION CLAIM. 

BREITHAUPT SUMMARILY REJECTED AN ARGUMENT THAT THE WITHDRAWAL OF
BLOOD AND THE ADMISSION OF THE ANALYSIS REPORT INVOLVED IN THAT STATE
CASE VIOLATED THE FIFTH AMENDMENT PRIVILEGE OF ANY PERSON NOT TO "BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF," CITING
TWINING V. NEW JERSEY, 211 U.S. 78.  BUT THAT CASE, HOLDING THAT THE
PROTECTIONS OF THE FOURTEENTH AMENDMENT DO NOT EMBRACE THIS FIFTH
AMENDMENT PRIVILEGE, HAS BEEN SUCCEEDED BY MALLOY V. HOGAN, 378 U.S. 1,
8.  WE THERE HELD THAT "THE FOURTEENTH AMENDMENT SECURES AGAINST STATE
INVASION THE SAME PRIVILEGE THAT THE FIFTH AMENDMENT GUARANTEES AGAINST
FEDERAL INFRINGEMENT - THE RIGHT OF A PERSON TO REMAIN SILENT UNLESS HE
CHOOSES TO SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN WILL, AND TO
SUFFER NO PENALTY  ...  FOR SUCH SILENCE."  WE THEREFORE MUST NOW
DECIDE WHETHER THE WITHDRAWAL OF THE BLOOD AND ADMISSION IN EVIDENCE OF
THE ANALYSIS INVOLVED IN THIS CASE VIOLATED PETITIONER'S PRIVILEGE.  WE
HOLD THAT THE PRIVILEGE PROTECTS AN ACCUSED ONLY FROM BEING COMPELLED
TO TESTIFY AGAINST HIMSELF, OR OTHERWISE PROVIDE THE STATE WITH
EVIDENCE OF A TESTIMONIAL OR COMMUNICATIVE NATURE, (FN5) AND THAT THE
WITHDRAWAL OF BLOOD AND USE OF THE ANALYSIS IN QUESTION IN THIS CASE
DID NOT INVOLVE COMPULSION TO THESE ENDS. 

IT COULD NOT BE DENIED THAT IN REQUIRING PETITIONER TO SUBMIT TO THE
WITHDRAWAL AND CHEMICAL ANALYSIS OF HIS BLOOD THE STATE COMPELLED HIM
TO SUBMIT TO AN ATTEMPT TO DISCOVER EVIDENCE THAT MIGHT BE USED TO
PROSECUTE HIM FOR A CRIMINAL OFFENSE.  HE SUBMITTED ONLY AFTER THE
POLICE OFFICER REJECTED HIS OBJECTION AND DIRECTED THE PHYSICIAN TO
PROCEED.  THE OFFICER'S DIRECTION TO THE PHYSICIAN TO ADMINISTER THE
TEST OVER PETITIONER'S OBJECTION CONSTITUTED COMPULSION FOR THE
PURPOSES OF THE PRIVILEGE.  THE CRITICAL QUESTION, THEN, IS WHETHER
PETITIONER WAS THUS COMPELLED "TO BE A WITNESS AGAINST HIMSELF." 
(FN6) 

IF THE SCOPE OF THE PRIVILEGE COINCIDED WITH THE COMPLEX OF VALUES IT
HELPS TO PROTECT, WE MIGHT BE OBLIGED TO CONCLUDE THAT THE PRIVILEGE
WAS VIOLATED.  IN MIRANDA V. ARIZONA, ANTE, AT 460, THE COURT SAID OF
THE INTERESTS PROTECTED BY THE PRIVILEGE:  "ALL THESE POLICIES POINT TO
ONE OVERRIDING THOUGHT:  THE CONSTITUTIONAL FOUNDATION UNDERLYING THE
PRIVILEGE IS THE RESPECT A GOVERNMENT - STATE OR FEDERAL - MUST ACCORD
TO THE DIGNITY AND INTEGRITY OF ITS CITIZENS.  TO MAINTAIN A 'FAIR
STATE-INDIVIDUAL BALANCE,' TO REQUIRE THE GOVERNMENT 'TO SHOULDER THE
ENTIRE LOAD'  ...  TO RESPECT THE INVIOLABILITY OF THE HUMAN
PERSONALITY, OUR ACCUSATORY SYSTEM OF CRIMINAL JUSTICE DEMANDS THAT THE
GOVERNMENT SEEKING TO PUNISH AN INDIVIDUAL PRODUCE THE EVIDENCE AGAINST
HIM BY ITS OWN INDEPENDENT LABORS, RATHER THAN BY THE CRUEL, SIMPLE
EXPEDIENT OF COMPELLING IT FROM HIS OWN MOUTH."   THE WITHDRAWAL OF
BLOOD NECESSARILY INVOLVES PUNCTURING THE SKIN FOR EXTRACTION, AND THE
PERCENT BY WEIGHT OF ALCOHOL IN THAT BLOOD, AS ESTABLISHED BY CHEMICAL
ANALYSIS, IS EVIDENCE OF CRIMINAL GUILT.   COMPELLED SUBMISSION FAILS
ON ONE VIEW TO RESPECT THE "INVIOLABILITY OF THE HUMAN PERSONALITY." 
MOREOVER, SINCE IT ENABLES THE STATE TO RELY ON EVIDENCE FORCED FROM
THE ACCUSED, THE COMPULSION VIOLATES AT LEAST ONE MEANING OF THE
REQUIREMENT THAT THE STATE PROCURE THE EVIDENCE AGAINST AN ACCUSED "BY
ITS OWN INDEPENDENT LABORS." 

AS THE PASSAGE IN MIRANDA IMPLICITLY RECOGNIZES, HOWEVER, THE
PRIVILEGE HAS NEVER BEEN GIVEN THE FULL SCOPE WHICH THE VALUES IT HELPS
TO PROTECT SUGGEST.  HISTORY AND A LONG LINE OF AUTHORITIES IN LOWER
COURTS HAVE CONSISTENTLY LIMITED ITS PROTECTION TO SITUATIONS IN WHICH
THE STATE SEEKS TO SUBMERGE THOSE VALUES BY OBTAINING THE EVIDENCE
AGAINST AN ACCUSED THROUGH "THE CRUEL, SIMPLE EXPEDIENT OF COMPELLING
IT FROM HIS OWN MOUTH  ...  .  IN SUM, THE PRIVILEGE IS FULFILLED ONLY
WHEN THE PERSON IS GUARANTEED THE RIGHT 'TO REMAIN SILENT UNLESS HE
CHOOSES TO SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN WILL.'"  IBID.
THE LEADING CASE IN THIS COURT IS HOLT V. UNITED STATES, 218 U.S. 245. 
THERE THE QUESTION WAS WHETHER EVIDENCE WAS ADMISSIBLE THAT THE
ACCUSED, PRIOR TO TRIAL AND OVER HIS PROTEST, PUT ON A BLOUSE THAT
FITTED HIM.  IT WAS CONTENDED THAT COMPELLING THE ACCUSED TO SUBMIT TO
THE DEMAND THAT HE MODEL THE BLOUSE VIOLATED THE PRIVILEGE.  MR.
JUSTICE HOLMES, SPEAKING FOR THE COURT, REJECTED THE ARGUMENT AS "BASED
UPON AN EXTRAVAGANT EXTENSION OF THE FIFTH AMENDMENT," AND WENT ON TO
SAY:  "THE PROHIBITION OF COMPELLING A MAN IN A CRIMINAL COURT TO BE
WITNESS AGAINST HIMSELF IS A PROHIBITION OF THE USE OF PHYSICAL OR
MORAL COMPULSION TO EXTORT COMMUNICATIONS FROM HIM, NOT AN EXCLUSION OF
HIS BODY AS EVIDENCE WHEN IT MAY BE MATERIAL.  THE OBJECTION IN
PRINCIPLE WOULD FORBID A JURY TO LOOK AT A PRISONER AND COMPARE HIS
FEATURES WITH A PHOTOGRAPH IN PROOF."  218 U.S., AT 252-253.  (FN7) 

IT IS CLEAR THAT THE PROTECTION OF THE PRIVILEGE REACHES AN ACCUSED'S
COMMUNICATIONS, WHATEVER FORM THEY MIGHT TAKE, AND THE COMPULSION OF
RESPONSES WHICH ARE ALSO COMMUNICATIONS, FOR EXAMPLE, COMPLIANCE WITH A
SUBPOENA TO PRODUCE ONE'S PAPERS.  BOYD V. UNITED STATES, 116 U.S.
616.  ON THE OTHER HAND, BOTH FEDERAL AND STATE COURTS HAVE USUALLY
HELD THAT IT OFFERS NO PROTECTION AGAINST COMPULSION TO SUBMIT TO
FINGERPRINTING, PHOTOGRAPHING, OR MEASUREMENTS, TO WRITE OR SPEAK FOR
IDENTIFICATION, TO APPEAR IN COURT, TO STAND, TO ASSUME A STANCE, TO
WALK, OR TO MAKE A PARTICULAR GESTURE.  (FN8)  THE DISTINCTION WHICH
HAS EMERGED, OFTEN EXPRESSED IN DIFFERENT WAYS, IS THAT THE PRIVILEGE
IS A BAR AGAINST COMPELLING "COMMUNICATIONS" OR "TESTIMONY," BUT THAT
COMPULSION WHICH MAKES A SUSPECT OR ACCUSED THE SOURCE OF "REAL OR
PHYSICAL EVIDENCE" DOES NOT VIOLATE IT. 

ALTHOUGH WE AGREE THAT THIS DISTINCTION IS A HELPFUL FRAMEWORK FOR
ANALYSIS, WE ARE NOT TO BE UNDERSTOOD TO AGREE WITH PAST APPLICATIONS
IN ALL INSTANCES.  THERE WILL BE MANY CASES IN WHICH SUCH A DISTINCTION
IS NOT READILY DRAWN.  SOME TESTS SEEMINGLY DIRECTED TO OBTAIN
"PHYSICAL EVIDENCE," FOR EXAMPLE, LIE DETECTOR TESTS MEASURING CHANGES
IN BODY FUNCTION DURING INTERROGATION, MAY ACTUALLY BE DIRECTED TO
ELICITING RESPONSES WHICH ARE ESSENTIALLY TESTIMONIAL.  TO COMPEL A
PERSON TO SUBMIT TO TESTING IN WHICH AN EFFORT WILL BE MADE TO
DETERMINE HIS GUILT OR INNOCENCE ON THE BASIS OF PHYSIOLOGICAL
RESPONSES, WHETHER WILLED OR NOT, IS TO EVOKE THE SPIRIT AND HISTORY OF
THE FIFTH AMENDMENT.  SUCH SITUATIONS CALL TO MIND THE PRINCIPLE THAT
THE PROTECTION OF THE PRIVILEGE "IS AS BROAD AS THE MISCHIEF AGAINST
WHICH IT SEEKS TO GUARD," COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562. 

IN THE PRESENT CASE, HOWEVER, NO SUCH PROBLEM OF APPLICATION IS
PRESENTED.  NOT EVEN A SHADOW OF TESTIMONIAL COMPULSION UPON OR
ENFORCED COMMUNICATION BY THE ACCUSED WAS INVOLVED EITHER IN THE
EXTRACTION OR IN THE CHEMICAL ANALYSIS.  PETITIONER'S TESTIMONIAL
CAPACITIES WERE IN NO WAY IMPLICATED; INDEED, HIS PARTICIPATION, EXCEPT
AS A DONOR, WAS IRRELEVANT TO THE RESULTS OF THE TEST, WHICH DEPEND ON
CHEMICAL ANALYSIS AND ON THAT ALONE.  (FN9)  SINCE THE BLOOD TEST
EVIDENCE, ALTHOUGH AN INCRIMINATING PRODUCT OF COMPULSION, WAS NEITHER
PETITIONER'S TESTIMONY NOR EVIDENCE RELATING TO SOME COMMUNICATIVE ACT
OR WRITING BY THE PETITIONER, IT WAS NOT INADMISSIBLE ON PRIVILEGE
GROUNDS. 

                            III. 

          THE RIGHT TO COUNSEL CLAIM. 

THIS CONCLUSION ALSO ANSWERS PETITIONER'S CLAIM THAT, IN COMPELLING
HIM TO SUBMIT TO THE TEST IN FACE OF THE FACT THAT HIS OBJECTION WAS
MADE ON THE ADVICE OF COUNSEL, HE WAS DENIED HIS SIXTH AMENDMENT RIGHT
TO THE ASSISTANCE OF COUNSEL.  SINCE PETITIONER WAS NOT ENTITLED TO
ASSERT THE PRIVILEGE, HE HAS NO GREATER RIGHT BECAUSE COUNSEL
ERRONEOUSLY ADVISED HIM THAT HE COULD ASSERT IT. HIS CLAIM IS STRICTLY
LIMITED TO THE FAILURE OF THE POLICE TO RESPECT HIS WISH, REINFORCED BY
COUNSEL'S ADVICE, TO BE LEFT INVIOLATE.  NO ISSUE OF COUNSEL'S ABILITY
TO ASSIST PETITIONER IN RESPECT OF ANY RIGHTS HE DID POSSESS IS
PRESENTED.  THE LIMITED CLAIM THUS MADE MUST BE REJECTED. 

            IV.

                                 THE SEARCH AND SEIZURE CLAIM. 

IN BREITHAUPT, AS HERE, IT WAS ALSO CONTENDED THAT THE CHEMICAL
ANALYSIS SHOULD BE EXCLUDED FROM EVIDENCE AS THE PRODUCT OF AN UNLAWFUL
SEARCH AND SEIZURE IN VIOLATION OF THE FOURTH AND FOURTEENTH
AMENDMENTS.  THE COURT DID NOT DECIDE WHETHER THE EXTRACTION OF BLOOD
IN THAT CASE WAS UNLAWFUL, BUT REJECTED THE CLAIM ON THE BASIS OF WOLF
V. COLORADO, 338 U.S. 25.  THAT CASE HAD HELD THAT THE CONSTITUTION DID
NOT REQUIRE, IN STATE PROSECUTIONS FOR STATE CRIMES, THE EXCLUSION OF
EVIDENCE OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT'S PROVISIONS. 
WE HAVE SINCE OVERRULED WOLF IN THAT RESPECT, HOLDING IN MAPP V. OHIO,
367 U.S. 643, THAT THE EXCLUSIONARY RULE ADOPTED FOR FEDERAL
PROSECUTIONS IN WEEKS V. UNITED STATES, 232 U.S. 383, MUST ALSO BE
APPLIED IN CRIMINAL PROSECUTIONS IN STATE COURTS.  THE QUESTION IS
SQUARELY PRESENTED THEREFORE, WHETHER THE CHEMICAL ANALYSIS INTRODUCED
IN EVIDENCE IN THIS CASE SHOULD HAVE BEEN EXCLUDED AS THE PRODUCT OF AN
UNCONSTITUTIONAL SEARCH AND SEIZURE. 

THE OVERRIDING FUNCTION OF THE FOURTH AMENDMENT IS TO PROTECT
PERSONAL PRIVACY AND DIGNITY AGAINST UNWARRANTED INTRUSION BY THE
STATE.  IN WOLF WE RECOGNIZED "THE SECURITY OF ONE'S PRIVACY AGAINST
ARBITRARY INTRUSION BY THE POLICE" AS BEING "AT THE CORE OF THE FOURTH
AMENDMENT" AND "BASIC TO A FREE SOCIETY."  338 U.S., AT 27.  WE
REAFFIRMED THAT BROAD VIEW OF THE AMENDMENT'S PURPOSE IN APPLYING THE
FEDERAL EXCLUSIONARY RULE TO THE STATES IN MAPP. 

THE VALUES PROTECTED BY THE FOURTH AMENDMENT THUS SUBSTANTIALLY
OVERLAP THOSE THE FIFTH AMENDMENT HELPS TO PROTECT.  HISTORY AND
PRECEDENT HAVE REQUIRED THAT WE TODAY REJECT THE CLAIM THAT THE SELF
INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT REQUIRES THE HUMAN BODY IN
ALL CIRCUMSTANCES TO BE HELD INVIOLATE AGAINST STATE EXPEDITIONS
SEEKING EVIDENCE OF CRIME.  BUT IF COMPULSORY ADMINISTRATION OF A BLOOD
TEST DOES NOT IMPLICATE THE FIFTH AMENDMENT, IT PLAINLY INVOLVES THE
BROADLY CONCEIVED REACH OF A SEARCH AND SEIZURE UNDER THE FOURTH
AMENDMENT.  THAT AMENDMENT EXPRESSLY PROVIDES THAT "THE RIGHT OF THE
PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS,
AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED  ...
."  IT COULD NOT REASONABLY BE ARGUED, AND INDEED RESPONDENT DOES NOT
ARGUE, THAT THE ADMINISTRATION OF THE BLOOD TEST IN THIS CASE WAS FREE
OF THE CONSTRAINTS OF THE FOURTH AMENDMENT.  SUCH TESTING PROCEDURES
PLAINLY CONSTITUTE SEARCHES OF "PERSONS," AND DEPEND ANTECEDENTLY UPON
SEIZURES OF "PERSONS," WITHIN THE MEANING OF THAT AMENDMENT. 

BECAUSE WE ARE DEALING WITH INTRUSIONS INTO THE HUMAN BODY RATHER
THAN WITH STATE INTERFERENCES WITH PROPERTY RELATIONSHIPS OR PRIVATE
PAPERS - "HOUSES, PAPERS, AND EFFECTS" - WE WRITE ON A CLEAN SLATE. 
LIMITATIONS ON THE KINDS OF PROPERTY WHICH MAY BE SEIZED UNDER WARRANT,
(FN10) AS DISTINCT FROM THE PROCEDURES FOR SEARCH AND THE PERMISSIBLE
SCOPE OF SEARCH, (FN11) ARE NOT INSTRUCTIVE IN THIS CONTEXT.  WE BEGIN
WITH THE ASSUMPTION THAT ONCE THE PRIVILEGE AGAINST SELF-INCRIMINATION
HAS BEEN FOUND NOT TO BAR COMPELLED INTRUSIONS INTO THE BODY FOR BLOOD
TO BE ANALYZED FOR ALCOHOL CONTENT, THE FOURTH AMENDMENT'S PROPER
FUNCTION IS TO CONSTRAIN, NOT AGAINST ALL INTRUSIONS AS SUCH, BUT
AGAINST INTRUSIONS WHICH ARE NOT JUSTIFIED IN THE CIRCUMSTANCES, OR
WHICH ARE MADE IN AN IMPROPER MANNER.  IN OTHER WORDS, THE QUESTIONS WE
MUST DECIDE IN THIS CASE ARE WHETHER THE POLICE WERE JUSTIFIED IN
REQUIRING PETITIONER TO SUBMIT TO THE BLOOD TEST, AND WHETHER THE MEANS
AND PROCEDURES EMPLOYED IN TAKING HIS BLOOD RESPECTED RELEVANT FOURTH
AMENDMENT STANDARDS OF REASONABLENESS. 

IN THIS CASE, AS WILL OFTEN BE TRUE WHEN CHARGES OF DRIVING UNDER THE
INFLUENCE OF ALCOHOL ARE PRESSED, THESE QUESTIONS ARISE IN THE CONTEXT
OF AN ARREST MADE BY AN OFFICER WITHOUT A WARRANT.  HERE, THERE WAS
PLAINLY PROBABLE CAUSE FOR THE OFFICER TO ARREST PETITIONER AND CHARGE
HIM WITH DRIVING AN AUTOMOBILE WHILE UNDER THE INFLUENCE OF
INTOXICATING LIQUOR.  (FN12)  THE POLICE OFFICER WHO ARRIVED AT THE
SCENE SHORTLY AFTER THE ACCIDENT SMELLED LIQUOR ON PETITIONER'S BREATH,
AND TESTIFIED THAT PETITIONER'S EYES WERE "BLOODSHOT, WATERY, SORT OF A
GLASSY APPEARANCE."  THE OFFICER SAW PETITIONER AGAIN AT THE HOSPITAL,
WITHIN TWO HOURS OF THE ACCIDENT.  THERE HE NOTICED SIMILAR SYMPTOMS OF
DRUNKENNESS.  HE THEREUPON INFORMED PETITIONER "THAT HE WAS UNDER
ARREST AND THAT HE WAS ENTITLED TO THE SERVICES OF AN ATTORNEY, AND
THAT HE COULD REMAIN SILENT, AND THAT ANYTHING THAT HE TOLD ME WOULD BE
USED AGAINST HIM IN EVIDENCE." 

WHILE EARLY CASES SUGGEST THAT THERE IS AN UNRESTRICTED "RIGHT ON THE
PART OF THE GOVERNMENT, ALWAYS RECOGNIZED UNDER ENGLISH AND AMERICAN
LAW, TO SEARCH THE PERSON OF THE ACCUSED WHEN LEGALLY ARRESTED TO
DISCOVER AND SEIZE THE FRUITS OR EVIDENCES OF CRIME," WEEKS V. UNITED
STATES, 232 U.S. 383, 392; PEOPLE V. CHIAGLES, 237 N.Y. 193, 142 N.E.
583 (1923)(CARDOZE, J.), THE MERE FACT OF A LAWFUL ARREST DOES NOT END
OUR INQUIRY.  THE SUGGESTION OF THESE CASES APPARENTLY RESTS ON TWO
FACTORS - FIRST, THERE MAY BE MORE IMMEDIATE DANGER OF CONCEALED
WEAPONS OR OF DESTRUCTION OF EVIDENCE UNDER THE DIRECT CONTROL OF THE
ACCUSED, UNITED STATES V. RABINOWITZ, 339 U.S. 56, 72-73 (FRANKFURTER,
J., DISSENTING); SECOND, ONCE A SEARCH OF THE ARRESTED PERSON FOR
WEAPONS IS PERMITTED, IT WOULD BE BOTH IMPRACTICAL AND UNNECESSARY TO
ENFORCEMENT OF THE FOURTH AMENDMENT'S PURPOSE TO ATTEMPT TO CONFINE THE
SEARCH TO THOSE OBJECTS ALONE.  PEOPLE V. CHIAGLES, 237 N.Y., AT 197
198, 142 N.E., AT 584.  WHATEVER THE VALIDITY OF THESE CONSIDERATIONS
IN GENERAL, THEY HAVE LITTLE APPLICABILITY WITH RESPECT TO SEARCHES
INVOLVING INTRUSIONS BEYOND THE BODY'S SURFACE.  THE INTERESTS IN HUMAN
DIGNITY AND PRIVACY WHICH THE FOURTH AMENDMENT PROTECTS FORBID ANY SUCH
INTRUSIONS ON THE MERE CHANCE THAT DESIRED EVIDENCE MIGHT BE OBTAINED. 
IN THE ABSENCE OF A CLEAR INDICATION THAT IN FACT SUCH EVIDENCE WILL BE
FOUND, THESE FUNDAMENTAL HUMAN INTERESTS REQUIRE LAW OFFICERS TO SUFFER
THE RISK THAT SUCH EVIDENCE MAY DISAPPEAR UNLESS THERE IS AN IMMEDIATE
SEARCH. 

ALTHOUGH THE FACTS WHICH ESTABLISHED PROBABLE CAUSE TO ARREST IN THIS
CASE ALSO SUGGESTED THE REQUIRED RELEVANCE AND LIKELY SUCCESS OF A TEST
OF PETITIONER'S BLOOD FOR ALCOHOL, THE QUESTION REMAINS WHETHER THE
ARRESTING OFFICER WAS PERMITTED TO DRAW THESE INFERENCES HIMSELF, OR
WAS REQUIRED INSTEAD TO PROCURE A WARRANT BEFORE PROCEEDING WITH THE
TEST.  SEARCH WARRANTS ARE ORDINARILY REQUIRED FOR SEARCHES OF
DWELLINGS, AND, ABSENT AN EMERGENCY, NO LESS COULD BE REQUIRED WHERE
INTRUSIONS INTO THE HUMAN BODY ARE CONCERNED.  THE REQUIREMENT THAT A
WARRANT BE OBTAINED IS A REQUIREMENT THAT THE INFERENCES TO SUPPORT THE
SEARCH "BE DRAWN BY A NEUTRAL AND DETACHED MAGISTRATE INSTEAD OF BEING
JUDGED BY THE OFFICER ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF
FERRETING OUT CRIME."  JOHNSON V. UNITED STATES, 333 U.S. 10, 13-14;
SEE ALSO AGUILAR V. TEXAS, 378 U.S. 108, 110-111.  THE IMPORTANCE OF
INFORMED, DETACHED AND DELIBERATE DETERMINATIONS OF THE ISSUE WHETHER
OR NOT TO INVADE ANOTHER'S BODY IN SEARCH OF EVIDENCE OF GUILT IS
INDISPUTABLE AND GREAT. 

THE OFFICER IN THE PRESENT CASE, HOWEVER, MIGHT REASONABLY HAVE
BELIEVED THAT HE WAS CONFRONTED WITH AN EMERGENCY, IN WHICH THE DELAY
NECESSARY TO OBTAIN A WARRANT, UNDER THE CIRCUMSTANCES, THREATENED "THE
DESTRUCTION OF EVIDENCE," PRESTON V. UNITED STATES, 376 U.S. 364, 367. 
WE ARE TOLD THAT THE PERCENTAGE OF ALCOHOL IN THE BLOOD BEGINS TO
DIMINISH SHORTLY AFTER DRINKING STOPS, AS THE BODY FUNCTIONS TO
ELIMINATE IT FROM THE SYSTEM.  PARTICULARLY IN A CASE SUCH AS THIS,
WHERE TIME HAD TO BE TAKEN TO BRING THE ACCUSED TO A HOSPITAL AND TO
INVESTIGATE THE SCENE OF THE ACCIDENT, THERE WAS NO TIME TO SEEK OUT A
MAGISTRATE AND SECURE A WARRANT.  GIVEN THESE SPECIAL FACTS, WE
CONCLUDE THAT THE ATTEMPT TO SECURE EVIDENCE OF BLOOD-ALCOHOL CONTENT
IN THIS CASE WAS AN APPROPRIATE INCIDENT TO PETITIONER'S ARREST. 

SIMILARLY, WE ARE SATISFIED THAT THE TEST CHOSEN TO MEASURE
PETITIONER'S BLOOD-ALCOHOL LEVEL WAS A REASONABLE ONE.  EXTRACTION OF
BLOOD SAMPLES FOR TESTING IS A HIGHLY EFFECTIVE MEANS OF DETERMINING
THE DEGREE TO WHICH A PERSON IS UNDER THE INFLUENCE OF ALCOHOL.  SEE
BREITHAUPT V. ABRAM, 352 U.S., AT 436, N. 3.  SUCH TESTS ARE A
COMMONPLACE IN THESE DAYS OF PERIODIC PHYSICAL EXAMINATIONS (FN13) AND
EXPERIENCE WITH THEM TEACHES THAT THE QUANTITY OF BLOOD EXTRACTED IS
MINIMAL, AND THAT FOR MOST PEOPLE THE PROCEDURE INVOLVES VIRTUALLY NO
RISK, TRAUMA, OR PAIN.  PETITIONER IS NOT ONE OF THE FEW WHO ON GROUNDS
OF FEAR, CONCERN FOR HEALTH, OR RELIGIOUS SCRUPLE MIGHT PREFER SOME
OTHER MEANS OF TESTING, SUCH AS THE "BREATHALYZER" TEST PETITIONER
REFUSED, SEE N. 9, SUPRA.  WE NEED NOT DECIDE WHETHER SUCH WISHES WOULD
HAVE TO BE RESPECTED.  (FN14) 

FINALLY, THE RECORD SHOWS THAT THE TEST WAS PERFORMED IN A REASONABLE
MANNER.  PETITIONER'S BLOOD WAS TAKEN BY A PHYSICIAN IN A HOSPITAL
ENVIRONMENT ACCORDING TO ACCEPTED MEDICAL PRACTICES.  WE ARE THUS NOT
PRESENTED WITH THE SERIOUS QUESTIONS WHICH WOULD ARISE IF A SEARCH
INVOLVING USE OF A MEDICAL TECHNIQUE, EVEN OF THE MOST RUDIMENTARY
SORT, WERE MADE BY OTHER THAN MEDICAL PERSONNEL OR IN OTHER THAN A
MEDICAL ENVIRONMENT - FOR EXAMPLE, IF IT WERE ADMINISTERED BY POLICE IN
THE PRIVACY OF THE STATIONHOUSE.  TO TOLERATE SEARCHES UNDER THESE
CONDITIONS MIGHT BE TO INVITE AN UNJUSTIFIED ELEMENT OF PERSONAL RISK
OF INFECTION AND PAIN. 

WE THUS CONCLUDE THAT THE PRESENT RECORD SHOWS NO VIOLATION OF
PETITIONER'S RIGHT UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO BE
FREE OF UNREASONABLE SEARCHES AND SEIZURES.  IT BEARS REPEATING,
HOWEVER, THAT WE REACH THIS JUDGMENT ONLY ON THE FACTS OF THE PRESENT
RECORD.  THE INTEGRITY OF AN INDIVIDUAL'S PERSON IS A CHERISHED VALUE
OF OUR SOCIETY.  THAT WE TODAY HOLD THAT THE CONSTITUTION DOES NOT
FORBID THE STATES MINOR INTRUSIONS INTO AN INDIVIDUAL'S BODY UNDER
STRINGENTLY LIMITED CONDITIONS IN NO WAY INDICATES THAT IT PERMITS MORE
SUBSTANTIAL INTRUSIONS, OR INTRUSIONS UNDER OTHER CONDITIONS. 
AFFIRMED. 

FN1  CALIFORNIA VEHICLE CODE SEC 23102(A) PROVIDES, IN PERTINENT
PART, "IT IS UNLAWFUL FOR ANY PERSON WHO IS UNDER THE INFLUENCE OF
INTOXICATING LIQUOR  ...  TO DRIVE A VEHICLE UPON ANY HIGHWAY ...  ." 
THE OFFENSE IS A MISDEMEANOR. 

FN2  PETITIONER AND A COMPANION HAD BEEN DRINKING AT A TAVERN AND
BOWLING ALLEY.  THERE WAS EVIDENCE SHOWING THAT PETITIONER WAS DRIVING
FROM THE BOWLING ALLEY ABOUT MIDNIGHT NOVEMBER 12, 1964, WHEN THE CAR
SKIDDED, CROSSED THE ROAD AND STRUCK A TREE.  BOTH PETITIONER AND HIS
COMPANION WERE INJURED AND TAKEN TO A HOSPITAL FOR TREATMENT. 

FN3 THIS WAS THE JUDGMENT OF THE HIGHEST COURT OF THE STATE IN THIS
PROCEEDING SINCE CERTIFICATION TO THE CALIFORNIA DISTRICT COURT OF
APPEAL WAS DENIED.  SEE EDWARDS V. CALIFORNIA, 314 U.S. 160. 

FN4  WE "CANNOT SEE THAT IT SHOULD MAKE ANY DIFFERENCE WHETHER ONE
STATES UNEQUIVOCALLY THAT HE OBJECTS OR RESORTS TO PHYSICAL VIOLENCE IN
PROTEST OR IS IN SUCH CONDITION THAT HE IS UNABLE TO PROTEST." 
BREITHAUPT V. ABRAM, 352 U.S., AT 441 (WARREN, C.J., DISSENTING).  IT
WOULD BE A DIFFERENT CASE IF THE POLICE INITIATED THE VIOLENCE, REFUSED
TO RESPECT A REASONABLE REQUEST TO UNDERGO A DIFFERENT FORM OF TESTING,
OR RESPONDED TO RESISTANCE WITH INAPPROPRIATE FORCE.  COMPARE THE
DISCUSSION AT PART IV, INFRA. 

FN5  A DISSENT SUGGESTS THAT THE REPORT OF THE BLOOD TEST WAS
"TESTIMONIAL" OR "COMMUNICATIVE," BECAUSE THE TEST WAS PERFORMED IN
ORDER TO OBTAIN THE TESTIMONY OF OTHERS, COMMUNICATING TO THE JURY
FACTS ABOUT PETITIONER'S CONDITION.  OF COURSE, ALL EVIDENCE RECEIVED
IN COURT IS "TESTIMONIAL" OR "COMMUNICATIVE" IF THESE WORDS ARE THUS
USED.  BUT THE FIFTH AMENDMENT RELATES ONLY TO ACTS ON THE PART OF THE
PERSON TO WHOM THE PRIVILEGE APPLIES, AND WE USE THESE WORDS SUBJECT TO
THE SAME LIMITATIONS.  A NOD OR HEAD-SHAKE IS AS MUCH A "TESTIMONIAL"
OR "COMMUNICATIVE" ACT IN THIS SENSE AS ARE SPOKEN WORDS.  BUT THE
TERMS AS WE USE THEM DO NOT APPLY TO EVIDENCE OF ACTS NONCOMMUNICATIVE
IN NATURE AS TO THE PERSON ASSERTING THE PRIVILEGE, EVEN THOUGH, AS
HERE, SUCH ACTS ARE COMPELLED TO OBTAIN THE TESTIMONY OF OTHERS. 

FN6  MANY STATE CONSTITUTIONS, INCLUDING THOSE OF MOST OF THE
ORIGINAL COLONIES, PHRASE THE PRIVILEGE IN TERMS OF COMPELLING A PERSON
TO GIVE "EVIDENCE" AGAINST HIMSELF.  BUT OUR DECISION CANNOT TURN ON
THE FIFTH AMENDMENT'S USE OF THE WORD "WITNESS."  "AS THE MANIFEST
PURPOSE OF THE CONSTITUTIONAL PROVISIONS, BOTH OF THE STATES AND OF THE
UNITED STATES, IS TO PROHIBIT THE COMPELLING OF TESTIMONY OF A SELF
INCRIMINATING KIND FROM A PARTY OR A WITNESS, THE LIBERAL CONSTRUCTION
WHICH MUST BE PLACED UPON CONSTITUTIONAL PROVISIONS FOR THE PROTECTION
OF PERSONAL RIGHTS WOULD SEEM TO REQUIRE THAT THE CONSTITUTIONAL
GUARANTIES, HOWEVER DIFFERENTLY WORDED, SHOULD HAVE AS FAR AS POSSIBLE
THE SAME INTERPRETATION  ...  ."  COUNSELMAN V. HITCHCOCK, 142 U.S.
547, 584-585.  8 WIGMORE, EVIDENCE SEC 2252 (MCNAUGHTON REV. 1961). 

FN7  COMPARE WIGMORE'S VIEW, "THAT THE PRIVILEGE IS LIMITED TO
TESTIMONIAL DISCLOSURES.  IT WAS DIRECTED AT THE EMPLOYMENT OF LEGAL
PROCESS TO EXTRACT FROM THE PERSON'S OWN LIPS AN ADMISSION OF GUILT,
WHICH WOULD THUS TAKE THE PLACE OF OTHER EVIDENCE."  8 WIGMORE,
EVIDENCE SEC 2263 (MCNAUGHTON REV. 1961).  CALIFORNIA ADOPTED THE
WIGMORE FORMULATION IN PEOPLE V. TRUJILLO, 32 CAL. 2D 105, 194 P.2D 681
(1948); WITH SPECIFIC REGARD TO BLOOD TESTS, SEE PEOPLE V. HAEUSSLER,
41 CAL. 2D 252, 260 P.2D 8 (1953); PEOPLE V. DURONCELAY, 48 CAL. 2D
766, 312 P.2D 690 (1957).  OUR HOLDING TODAY, HOWEVER, IS NOT TO BE
UNDERSTOOD AS ADOPTING THE WIGMORE FORMULATION. 

FN8  THE CASES ARE COLLECTED IN 8 WIGMORE, EVIDENCE SEC 2265
(MCNAUGHTON REV. 1961).  SEE ALSO UNITED STATES V. CHIBBARO, 361 F.2D
365 (C.A. 3D CIR. 1966); PEOPLE V. GRAVES, 64 CAL. 2D 208,  - , 411
P.2D 114, 116 (1966); WEINTRAUB, VOICE IDENTIFICATION, WRITING
EXEMPLARS AND THE PRIVILEGE AGAINST SELF-INCRIMINATION, 10 VAND.  L.
REV. 485 (1957). 

FN9  THIS CONCLUSION WOULD NOT NECESSARILY GOVERN HAD THE STATE TRIED
TO SHOW THAT THE ACCUSED HAD INCRIMINATED HIMSELF WHEN TOLD THAT HE
WOULD HAVE TO BE TESTED.  SUCH INCRIMINATING EVIDENCE MAY BE AN
UNAVOIDABLE BY-PRODUCT OF THE COMPULSION TO TAKE THE TEST, ESPECIALLY
FOR AN INDIVIDUAL WHO FEARS THE EXTRACTION OR OPPOSES IT ON RELIGIOUS
GROUNDS.  IF IT WISHES TO COMPEL PERSONS TO SUBMIT TO SUCH ATTEMPTS TO
DISCOVER EVIDENCE, THE STATE MAY HAVE TO FORGO THE ADVANTAGE OF ANY
TESTIMONIAL PRODUCTS OF ADMINISTERING THE TEST - PRODUCTS WHICH WOULD
FALL WITHIN THE PRIVILEGE.  INDEED, THERE MAY BE CIRCUMSTANCES IN WHICH
THE PAIN, DANGER, OR SEVERITY OF AN OPERATION WOULD ALMOST INEVITABLY
CAUSE A PERSON TO PREFER CONFESSION TO UNDERGOING THE "SEARCH," AND
NOTHING WE SAY TODAY SHOULD BE TAKEN AS ESTABLISHING THE PERMISSIBILITY
OF COMPULSION IN THAT CASE.  BUT NO SUCH SITUATION IS PRESENTED IN THIS
CASE.  SEE TEXT AT N. 13 INFRA. 

PETITIONER HAS RAISED A SIMILAR ISSUE IN THIS CASE, IN CONNECTION
WITH A POLICE REQUEST THAT HE SUBMIT TO A "BREATHALYZER" TEST OF AIR
EXPELLED FROM HIS LUNGS FOR ALCOHOL CONTENT.  HE REFUSED THE REQUEST,
AND EVIDENCE OF HIS REFUSAL WAS ADMITTED IN EVIDENCE WITHOUT
OBJECTION.  HE ARGUES THAT THE INTRODUCTION OF THIS EVIDENCE AND A
COMMENT BY THE PROSECUTOR IN CLOSING ARGUMENT UPON HIS REFUSAL IS
GROUND FOR REVERSAL UNDER GRIFFIN V. CALIFORNIA, 380 U.S. 609.  WE
THINK GENERAL FIFTH AMENDMENT PRINCIPLES, RATHER THAN THE PARTICULAR
HOLDING OF GRIFFIN, WOULD BE APPLICABLE IN THESE CIRCUMSTANCES, SEE
MIRANDA V. ARIZONA, ANTE, AT 468, N. 37.  SINCE TRIAL HERE WAS
CONDUCTED AFTER OUR DECISION IN MALLOY V. HOGAN, SUPRA, MAKING THOSE
PRINCIPLES APPLICABLE TO THE STATES, WE THINK PETITIONER'S CONTENTION
IS FORECLOSED BY HIS FAILURE TO OBJECT ON THIS GROUND TO THE
PROSECUTOR'S QUESTION AND STATEMENTS.    FN10  SEE, E.G., GOULED V.
UNITED STATES, 255 U.S. 298; BOYD V. UNITED STATES, 116 U.S. 616;
CONTRA, PEOPLE V. THAYER, 63 CAL. 2D 635, 408 P.2D 108 (1965); STATE V.
BISACCIA, 45 N.J.  504, 213 A.2D 185 (1965); NOTE, EVIDENTIARY
SEARCHES:  THE RULE AND THE REASON, 54 GEO. L.J.  593 (1966). 

FN11  SEE, E.G., SILVERMAN V. UNITED STATES, 365 U.S. 505; ABEL V.
UNITED STATES, 362 U.S. 217, 235; UNITED STATES V. RABINOWITZ, 339 U.S.
56. 

FN12  CALIFORNIA LAW AUTHORIZES A PEACE OFFICER TO ARREST "WITHOUT A
WARRANT  ...  WHENEVER HE HAS REASONABLE CAUSE TO BELIEVE THAT THE
PERSON TO BE ARRESTED HAS COMMITTED A FELONY, WHETHER OR NOT A FELONY
HAS IN FACT BEEN COMMITTED."  CAL. PENAL CODE SEC 836.3.  ALTHOUGH
PETITIONER WAS ULTIMATELY PROSECUTED FOR A MISDEMEANOR, HE WAS SUBJECT
TO PROSECUTION FOR THE FELONY SINCE A COMPANION IN HIS CAR WAS INJURED
IN THE ACCIDENT, WHICH APPARENTLY WAS THE RESULT OF TRAFFIC LAW
VIOLATIONS.  CAL. VEHICLE CODE SEC 23101.  CALIFORNIA'S TEST OF
PROBABLE CAUSE FOLLOWS THE FEDERAL STANDARD.  PEOPLE V. COCKRELL, 63
CAL. 2D 659, 408 P.2D 116 (1965). 

FN13  "THE BLOOD TEST PROCEDURE HAS BECOME ROUTINE IN OUR EVERYDAY
LIFE.  IT IS A RITUAL FOR THOSE GOING INTO THE MILITARY SERVICE AS WELL
AS THOSE APPLYING FOR MARRIAGE LICENSES.  MANY COLLEGES REQUIRE SUCH
TESTS BEFORE PERMITTING ENTRANCE AND LITERALLY MILLIONS OF US HAVE
VOLUNTARILY GONE THROUGH THE SAME, THOUGH A LONGER, ROUTINE IN BECOMING
BLOOD DONORS."  BREITHAUPT V. ABRAM, 352 U.S., AT 436. 

FN14  SEE KARST, LEGISLATIVE FACTS IN CONSTITUTIONAL LITIGATION, 1960
SUP. CT. REV. 75, 82-83. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

IN JOINING THE COURT'S OPINION I DESIRE TO ADD THE FOLLOWING
COMMENT.  WHILE AGREEING WITH THE COURT THAT THE TAKING OF THIS BLOOD
TEST INVOLVED NO TESTIMONIAL COMPULSION, I WOULD GO FURTHER AND HOLD
THAT APART FROM THIS CONSIDERATION THE CASE IN NO WAY IMPLICATES THE
FIFTH AMENDMENT.  CF. MY DISSENTING OPINION AND THAT OF MR. JUSTICE
WHITE IN MIRANDA V. ARIZONA, ANTE, PP. 504, 526. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

WHILE THERE ARE OTHER IMPORTANT CONSTITUTIONAL ISSUES IN THIS CASE, I
BELIEVE IT IS SUFFICIENT FOR ME TO REITERATE MY DISSENTING OPINION IN
BREITHAUPT V. ABRAM, 352 U.S. 432, 440, AS THE BASIS ON WHICH TO
REVERSE THIS CONVICTION. 

MR. JUSTICE BLACK WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

I WOULD REVERSE PETITIONER'S CONVICTION.  I AGREE WITH THE COURT THAT
THE FOURTEENTH AMENDMENT MADE APPLICABLE TO THE STATES THE FIFTH
AMENDMENT'S PROVISION THAT "NO PERSON  ...  SHALL BE COMPELLED IN ANY
CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF  ...  ."  BUT I DISAGREE
WITH THE COURT'S HOLDING THAT CALIFORNIA DID NOT VIOLATE PETITIONER'S
CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION WHEN IT COMPELLED HIM,
AGAINST HIS WILL, TO ALLOW A DOCTOR TO PUNCTURE HIS BLOOD VESSELS IN
ORDER TO EXTRACT A SAMPLE OF BLOOD AND ANALYZE IT FOR ALCOHOLIC
CONTENT, AND THEN USED THAT ANALYSIS AS EVIDENCE TO CONVICT PETITIONER
OF A CRIME. 

THE COURT ADMITS THAT "THE STATE COMPELLED PETITIONER TO SUBMIT TO AN
ATTEMPT TO DISCOVER EVIDENCE IN HIS BLOOD THAT MIGHT BE AND WAS USED TO
PROSECUTE HIM FOR A CRIMINAL OFFENSE."  TO REACH THE CONCLUSION THAT
COMPELLING A PERSON TO GIVE HIS BLOOD TO HELP THE STATE CONVICT HIM IS
NOT EQUIVALENT TO COMPELLING HIM TO BE A WITNESS AGAINST HIMSELF
STRIKES ME AS QUITE AN EXTRAORDINARY FEAT.  THE COURT, HOWEVER,
OVERCOMES WHAT HAD SEEMED TO ME TO BE AN INSUPERABLE OBSTACLE TO ITS
CONCLUSION BY HOLDING THAT: 

"  ...  THE PRIVILEGE PROTECTS AN ACCUSED ONLY FROM BEING COMPELLED
TO TESTIFY AGAINST HIMSELF, OR OTHERWISE PROVIDE THE STATE WITH
EVIDENCE OF A TESTIMONIAL OR COMMUNICATIVE NATURE, AND THAT THE
WITHDRAWAL OF BLOOD AND USE OF THE ANALYSIS IN QUESTION IN THIS CASE
DID NOT INVOLVE COMPULSION TO THESE ENDS."  (FOOTNOTE OMITTED.) 

I CANNOT AGREE THAT THIS DISTINCTION AND REASONING OF THE COURT
JUSTIFY DENYING PETITIONER HIS BILL OF RIGHTS' GUARANTEE THAT HE MUST
NOT BE COMPELLED TO BE A WITNESS AGAINST HIMSELF. 

IN THE FIRST PLACE IT SEEMS TO ME THAT THE COMPULSORY EXTRACTION OF
PETITIONER'S BLOOD FOR ANALYSIS SO THAT THE PERSON WHO ANALYZED IT
COULD GIVE EVIDENCE TO CONVICT HIM HAD BOTH A "TESTIMONIAL" AND A
"COMMUNICATIVE NATURE."  THE SOLE PURPOSE OF THIS PROJECT WHICH PROVED
TO BE SUCCESSFUL WAS TO OBTAIN "TESTIMONY" FROM SOME PERSON TO PROVE
THAT PETITIONER HAD ALCOHOL IN HIS BLOOD AT THE TIME HE WAS ARRESTED. 
AND THE PURPOSE OF THE PROJECT WAS CERTAINLY "COMMUNICATIVE" IN THAT
THE ANALYSIS OF THE BLOOD WAS TO SUPPLY INFORMATION TO ENABLE A WITNESS
TO COMMUNICATE TO THE COURT AND JURY THAT PETITIONER WAS MORE OR LESS
DRUNK. 

I THINK IT UNFORTUNATE THAT THE COURT RESTS SO HEAVILY FOR ITS VERY
RESTRICTIVE READING OF THE FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF
INCRIMINATION ON THE WORDS "TESTIMONIAL" AND "COMMUNICATIVE."  THESE
WORDS ARE NOT MODELS OF CLARITY AND PRECISION AS THE COURT'S RATHER
LABORED EXPLICATION SHOWS.  NOR CAN THE COURT, SO FAR AS I KNOW, FIND
PRECEDENT IN THE FORMER OPINIONS OF THIS COURT FOR USING THESE
PARTICULAR WORDS TO LIMIT THE SCOPE OF THE FIFTH AMENDMENT'S
PROTECTION.  THERE IS A SCHOLARLY PRECEDENT, HOWEVER, IN THE LATE
PROFESSOR WIGMORE'S LEARNED TREATISE ON EVIDENCE.  HE USED
"TESTIMONIAL" WHICH, ACCORDING TO THE LATEST EDITION OF HIS TREATISE
REVISED BY MCNAUGHTON, MEANS "COMMUNICATIVE" (8 WIGMORE, EVIDENCE SEC
2263 (MCNAUGHTON REV. 1961), P. 378), AS A KEY WORD IN HIS VIGOROUS AND
EXTENSIVE CAMPAIGN DESIGNED TO KEEP THE PRIVILEGE AGAINST SELF
INCRIMINATION "WITHIN LIMITS THE STRICTEST POSSIBLE."  8 WIGMORE,
EVIDENCE SEC 2251 (3D ED. 1940), P. 318.  THOUGH MY ADMIRATION FOR
PROFESSOR WIGMORE'S SCHOLARSHIP IS GREAT, I REGRET TO SEE THE WORD HE
USED TO NARROW THE FIFTH AMENDMENT'S PROTECTION PLAY SUCH A MAJOR PART
IN ANY OF THIS COURT'S OPINIONS. 

I AM HAPPY THAT THE COURT ITSELF REFUSES TO FOLLOW PROFESSOR
WIGMORE'S IMPLICATION THAT THE FIFTH AMENDMENT GOES NO FURTHER THAN TO
BAR THE USE OF FORCED SELF-INCRIMINATING STATEMENTS COMING FROM A
"PERSON'S OWN LIPS."  IT CONCEDES, AS IT MUST SO LONG AS BOYD V. UNITED
STATES, 116 U.S. 616, STANDS, THAT THE FIFTH AMENDMENT BARS A STATE
FROM COMPELLING A PERSON TO PRODUCE PAPERS HE HAS THAT MIGHT TEND TO
INCRIMINATE HIM.  IT IS A STRANGE HIERARCHY OF VALUES THAT ALLOWS THE
STATE TO EXTRACT A HUMAN BEING'S BLOOD TO CONVICT HIM OF A CRIME
BECAUSE OF THE BLOOD'S CONTENT BUT PROSCRIBES COMPELLED PRODUCTION OF
HIS LIFELESS PAPERS.  CERTAINLY THERE COULD BE FEW PAPERS THAT WOULD
HAVE ANY MORE "TESTIMONIAL" VALUE TO CONVICT A MAN OF DRUNKEN DRIVING
THAN WOULD AN ANALYSIS OF THE ALCOHOLIC CONTENT OF A HUMAN BEING'S
BLOOD INTRODUCED IN EVIDENCE AT A TRIAL FOR DRIVING WHILE UNDER THE
INFLUENCE OF ALCOHOL.  IN SUCH A SITUATION BLOOD, OF COURSE, IS NOT
ORAL TESTIMONY GIVEN BY AN ACCUSED BUT IT CAN CERTAINLY "COMMUNICATE"
TO A COURT AND JURY THE FACT OF GUILT. 

THE COURT ITSELF, AT PAGE 764, EXPRESSES ITS OWN DOUBTS, IF NOT
FEARS, OF ITS OWN SHADOWY DISTINCTION BETWEEN COMPELLING "PHYSICAL
EVIDENCE" LIKE BLOOD WHICH IT HOLD DOES NOT AMOUNT TO COMPELLED SELF
INCRIMINATION, AND "ELICITING RESPONSES WHICH ARE ESSENTIALLY
TESTIMONIAL."  AND IN EXPLANATION OF ITS FEARS THE COURT GOES ON TO
WARN THAT: 

"TO COMPEL A PERSON TO SUBMIT TO TESTING (BY LIE DETECTORS FOR
EXAMPLE) IN WHICH AN EFFORT WILL BE MADE TO DETERMINE HIS GUILT OR
INNOCENCE ON THE BASIS OF PHYSIOLOGICAL RESPONSES, WHETHER WILLED OR
NOT, IS TO EVOKE THE SPIRIT AND HISTORY OF THE FIFTH AMENDMENT.  SUCH
SITUATIONS CALL TO MIND THE PRINCIPLE THAT THE PROTECTION OF THE
PRIVILEGE 'IS AS BROAD AS THE MISCHIEF AGAINST WHICH IT SEEKS TO
GUARD.'  COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562." 

A BASIC ERROR IN THE COURT'S HOLDING AND OPINION IS ITS FAILURE TO
GIVE THE FIFTH AMENDMENT'S PROTECTION AGAINST COMPULSORY SELF
INCRIMINATION THE BROAD AND LIBERAL CONSTRUCTION THAT COUNSELMAN AND
OTHER OPINIONS OF THIS COURT HAVE DECLARED IT OUGHT TO HAVE. 

THE LIBERAL CONSTRUCTION GIVEN THE BILL OF RIGHTS' GUARANTEE IN BOYD
V. UNITED STATES, SUPRA, WHICH PROFESSOR WIGMORE CRITICIZED SEVERELY,
SEE 8 WIGMORE, EVIDENCE, SEC 2264 (3D ED. 1940), PP. 366-373, MAKES
THAT ONE AMONG THE GREATEST CONSTITUTIONAL DECISIONS OF THIS COURT.  IN
THAT CASE, AT 634-635, ALL THE MEMBERS OF THE COURT DECIDED THAT CIVIL
SUITS FOR PENALTIES AND FORFEITURES INCURRED FOR COMMISSION OF OFFENSES
AGAINST THE LAW, 

"  ...  ARE WITHIN THE REASON OF CRIMINAL PROCEEDINGS FOR ALL THE
PURPOSES OF  ...  THAT PORTION OF THE FIFTH AMENDMENT WHICH DECLARES
THAT NO PERSON SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS
AGAINST HIMSELF; ...  WITHIN THE MEANING OF THE FIFTH AMENDMENT TO THE
CONSTITUTION  ... ."* 

*A MAJORITY OF THE COURT APPLIED THE SAME CONSTITUTIONAL
INTERPRETATION TO THE SEARCH AND SEIZURE PROVISIONS OF THE FOURTH
AMENDMENT OVER THE DISSENT OF MR. JUSTICE MILLER, CONCURRED IN BY CHIEF
JUSTICE WAITE. 

OBVIOUSLY THE COURT'S INTERPRETATION WAS NOT COMPLETELY SUPPORTED BY
THE LITERAL LANGUAGE OF THE FIFTH AMENDMENT.  RECOGNIZING THIS, THE
COURT ANNOUNCED A RULE OF CONSTITUTIONAL INTERPRETATION THAT HAS BEEN
GENERALLY FOLLOWED EVER SINCE, PARTICULARLY IN JUDICIAL CONSTRUCTION OF
BILL OF RIGHTS GUARANTEES: 

"A CLOSE AND LITERAL CONSTRUCTION OF CONSTITUTIONAL PROVISIONS FOR
THE SECURITY OF PERSONS AND PROPERTY DEPRIVES THEM OF HALF THEIR
EFFICACY, AND LEADS TO GRADUAL DEPRECIATION OF THE RIGHT, AS IF IT
CONSISTED MORE IN SOUND THAN IN SUBSTANCE.  IT IS THE DUTY OF COURTS TO
BE WATCHFUL FOR THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST
ANY STEALTHY ENCROACHMENTS THEREON."  BOYD V. UNITED STATES, SUPRA, AT
635. 

THE COURT WENT ON TO SAY, AT 637, THAT TO REQUIRE "AN OWNER TO
PRODUCE HIS PRIVATE BOOKS AND PAPERS, IN ORDER TO PROVE HIS BREACH OF
THE LAWS, AND THUS TO ESTABLISH THE FORFEITURE OF HIS PROPERTY, IS
SURELY COMPELLING HIM TO FURNISH EVIDENCE AGAINST HIMSELF."  THE COURT
TODAY DEPARTS FROM THE TEACHINGS OF BOYD.  PETITIONER SCHMERBER HAS
UNDOUBTEDLY BEEN COMPELLED TO GIVE HIS BLOOD "TO FURNISH EVIDENCE
AGAINST HIMSELF," YET THE COURT HOLDS THAT THIS IS NOT FORBIDDEN BY THE
FIFTH AMENDMENT.  WITH ALL DEFERENCE I MUST SAY THAT THE COURT HERE
GIVES THE BILL OF RIGHTS' SAFEGUARD AGAINST COMPULSORY SELF
INCRIMINATION A CONSTRUCTION THAT WOULD GENERALLY BE CONSIDERED TOO
NARROW AND TECHNICAL EVEN IN THE INTERPRETATION OF AN ORDINARY
COMMERCIAL CONTRACT. 

THE COURT APPARENTLY, FOR A REASON I CANNOT UNDERSTAND, FINDS SOME
COMFORT FOR ITS NARROW CONSTRUCTION OF THE FIFTH AMENDMENT IN THIS
COURT'S DECISION IN MIRANDA V. ARIZONA, ANTE, P. 436.  I FIND NOTHING
WHATEVER IN THE MAJORITY OPINION IN THAT CASE WHICH EITHER DIRECTLY OR
INDIRECTLY SUPPORTS THE HOLDING IN THIS CASE.  IN FACT I THINK THE
INTERPRETIVE CONSTITUTIONAL PHILOSOPHY USED IN MIRANDA, UNLIKE THAT
USED IN THIS CASE, GIVES THE FIFTH AMENDMENT'S PROHIBITION AGAINST
COMPELLED SELF-INCRIMINATION A BROAD AND LIBERAL CONSTRUCTION IN LINE
WITH THE WHOLESOME ADMONITIONS IN THE BOYD CASE.  THE CLOSING SENTENCE
IN THE FIFTH AMENDMENT SECTION OF THE COURT'S OPINION IN THE PRESENT
CASE IS ENOUGH BY ITSELF, I THINK, TO EXPOSE THE UNSOUNDNESS OF WHAT
THE COURT HERE HOLDS.  THAT SENTENCE READS: 

"SINCE THE BLOOD TEST EVIDENCE, ALTHOUGH AN INCRIMINATING PRODUCT OF
COMPULSION, WAS NEITHER PETITIONER'S TESTIMONY NOR EVIDENCE RELATING TO
SOME COMMUNICATIVE ACT OR WRITING BY THE PETITIONER, IT WAS NOT
INADMISSIBLE ON PRIVILEGE GROUNDS."  HOW CAN IT REASONABLY BE DOUBTED
THAT THE BLOOD TEST EVIDENCE WAS NOT IN ALL RESPECTS THE ACTUAL
EQUIVALENT OF "TESTIMONY" TAKEN FROM PETITIONER WHEN THE RESULT OF THE
TEST WAS OFFERED AS TESTIMONY, WAS CONSIDERED BY THE JURY AS TESTIMONY,
AND THE JURY'S VERDICT OF GUILT RESTS IN PART ON THAT TESTIMONY?  THE
REFINED SUBTLE REASONING AND BALANCING PROCESS USED HERE TO NARROW THE
SCOPE OF THE BILL OF RIGHTS' SAFEGUARD AGAINST SELF-INCRIMINATION
PROVIDES A HANDY INSTRUMENT FOR FURTHER NARROWING OF THAT
CONSTITUTIONAL PROTECTION, AS WELL AS OTHERS, IN THE FUTURE.  BELIEVING
WITH THE FRAMERS THAT THESE CONSTITUTIONAL SAFEGUARDS BROADLY CONSTRUED
BY INDEPENDENT TRIBUNALS OF JUSTICE PROVIDE OUR BEST HOPE FOR KEEPING
OUR PEOPLE FREE FROM GOVERNMENTAAL OPPRESSION, I DEEPLY REGRET THE
COURT'S HOLDING.  FOR THE FOREGOING REASONS AS WELL AS THOSE SET OUT IN
CONCURRING OPINIONS OF BLACK AND DOUBLAS, JJ., IN ROCHIN V. CALIFORNIA,
342 U.S. 165, 174, 177, AND MY CONCURRING OPINION IN MAPP V. OHIO, 367
U.S. 643, 661, AND THE DISSENTING OPINIONS IN BREITHAUPT V. ABRAM, 352
U.S. 432, 440, 442, I DISSENT FROM THE COURT'S HOLDING AND OPINION IN
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I ADHERE TO THE VIEWS OF THE CHIEF JUSTICE IN HIS DISSENT IN
BREITHAUPT V. ABRAM, 352 U.S. 432, 440, AND TO THE VIEWS I STATED IN MY
DISSENT IN THAT CASE (ID., 442) AND ADD ONLY A WORD. 

WE ARE DEALING WITH THE RIGHT OF PRIVACY WHICH, SINCE THE BREITHAUPT
CASE, WE HAVE HELD TO BE WITHIN THE PENUMBRA OF SOME SPECIFIC
GUARANTEES OF THE BILL OF RIGHTS.  GRISWOLD V. CONNECTICUT, 381 U.S.
479.  THUS, THE FIFTH AMENDMENT MARKS "A ZONE OF PRIVACY" WHICH THE
GOVERNMENT MAY NOT FORCE A PERSON TO SURRENDER.  ID., 484.  LIKEWISE
THE FOURTH AMENDMENT RECOGNIZES THAT RIGHT WHEN IT GUARANTEES THE RIGHT
OF THE PEOPLE TO BE SECURE "IN THEIR PERSONS."  IBID.  NO CLEARER
INVASION OF THIS RIGHT OF PRIVACY CAN BE IMAGINED THAN FORCIBLE BLOOD
LETTING OF THE KIND INVOLVED HERE. 

MR. JUSTICE FORTAS, DISSENTING.    I WOULD REVERSE.  IN MY VIEW,
PETITIONER'S PRIVILEGE AGAINST SELF-INCRIMINATION APPLIES.  I WOULD ADD
THAT, UNDER THE DUE PROCESS CLAUSE, THE STATE, IN ITS ROLE AS
PROSECUTOR, HAS NO RIGHT TO EXTRACT BLOOD FROM AN ACCUSED OR ANYONE
ELSE, OVER HIS PROTEST.  AS PROSECUTOR, THE STATE HAS NO RIGHT TO
COMMIT ANY KIND OF VIOLENCE UPON THE PERSON, OR TO UTILIZE THE RESULTS
OF SUCH A TORT, AND THE EXTRACTION OF BLOOD, OVER PROTEST, IS AN ACT OF
VIOLENCE.  CF. CHIEF JUSTICE WARREN'S DISSENTING OPINION IN BREITHAUPT
V. ABRAM, 352 U.S. 432, 440. 
..END :


















GEORGIA V. RACHEL 384 U.S. 780 


NO. 147.  ARGUED APRIL 25-26, 1966.  - DECIDED JUNE 20, 1966.  - 342
F.2D 336, AFFIRMED. 


RESPONDENTS WERE ARRESTED ON VARIOUS DATES IN 1963 WHEN THEY SOUGHT
SERVICE AT ATLANTA RESTAURANTS.  THEY WERE CHARGED UNDER THE GEORGIA
CRIMINAL TRESPASS STATUTE AND PETITIONED FOR REMOVAL OF THE
PROSECUTIONS TO THE FEDERAL DISTRICT COURT UNDER 28 U.S.C. SEC 1443. 
THE PETITION ALLEGED THAT THE ARRESTS AND PROSECUTIONS WERE RACIALLY
MOTIVATED.  UNDER SUBSECTION (1) OF SEC 1443, WHICH PERTINENTLY
PROVIDES FOR REMOVAL WHERE THE ACTION IS "AGAINST ANY PERSON WHO IS
DENIED OR CANNOT ENFORCE" IN THE STATE COURTS "A RIGHT UNDER ANY LAW
PROVIDING FOR  ...  EQUAL CIVIL RIGHTS," RESPONDENTS ALLEGED THAT THEY
WERE DENIED AND COULD NOT ENFORCE IN THE GEORGIA COURTS THEIR RIGHTS
UNDER FEDERAL LAW.  THE FEDERAL LAW SPECIFICALLY INVOKED WAS THE FIRST
AMENDMENT AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  BUT
THE REMOVAL PETITION ALSO ALLEGED FACTS THAT STATED A CLAIM FOR REMOVAL
UNDER THE CIVIL RIGHTS ACT OF 1964, ENACTED WHILE THIS CASE WAS ON
APPEAL.  THE FEDERAL DISTRICT COURT REFUSED TO SUSTAIN REMOVAL AND
REMANDED THE CASES TO THE STATE COURT, FINDING THE FACTS ALLEGED
INSUFFICIENT UNDER SEC 1443.  THE COURT OF APPEALS, HOWEVER, REVERSED
ON THE BASIS OF THE 1964 ACT AS CONSTRUED IN HAMM V. CITY OF ROCK HILL,
379 U.S. 306.  IN HAMM, THIS COURT HELD THAT THE CIVIL RIGHTS ACT OF
1964 PRECLUDED STATE TRESPASS PROSECUTIONS IN PEACEFUL "SIT-IN" CASES
EVEN THOUGH THE PROSECUTIONS WERE INSTITUTED BEFORE THE ACT'S PASSAGE. 
IN TERMS OF THE LANGUAGE OF SEC 1443(1), THE COURT OF APPEALS HELD
THAT, IF THE ALLEGATIONS IN THE REMOVAL PETITION WERE TRUE, PROSECUTION
IN THE STATE COURT, UNDER A STATUTE SIMILAR TO THE STATE STATUTES IN
HAMM, DENIED RESPONDENTS A RIGHT UNDER A LAW (THE CIVIL RIGHTS ACT OF
1964) PROVIDING FOR EQUAL CIVIL RIGHTS.  HENCE, THE COURT REMANDED THE
CASE TO THE DISTRICT COURT WITH DIRECTIONS THAT RESPONDENTS BE GIVEN AN
OPPORTUNITY TO PROVE THAT THEIR PROSECUTIONS RESULTED FROM ORDERS TO
LEAVE PUBLIC ACCOMMODATIONS "FOR RACIAL REASONS," IN WHICH CASE THE
DISTRICT COURT UNDER HAMM WOULD HAVE TO DISMISS THE PROSECUTIONS. 
HELD: 

1.  REMOVAL OF THE STATE COURT TRESPASS PROSECUTIONS CAN BE HAD UNDER
SEC 1443(1) UPON THE ALLEGATION IN THE REMOVAL PETITION THAT THE
TRESPASS PROSECUTIONS STEM EXCLUSIVELY FROM THE RESPONDENTS' REFUSAL TO
LEAVE PLACES OF PUBLIC ACCOMMODATION COVERED BY THE CIVIL RIGHTS ACT OF
1964 WHEN THEY WERE ASKED TO LEAVE SOLELY FOR RACIAL REASONS.  PP. 788
805. 

(A)  THE PHRASE IN SEC 1443(1) "ANY LAW PROVIDING FOR  ...  EQUAL
CIVIL RIGHTS," MEANS ANY LAW PROVIDING FOR SPECIFIC CIVIL RIGHTS STATED
IN TERMS OF RACIAL EQUALITY.  THUS, ALTHOUGH BROAD FIRST AMENDMENT AND
DUE PROCESS CONTENTIONS DO NOT SUPPORT A REMOVAL CLAIM UNDER SEC
1443(1), THE CIVIL RIGHTS ACT OF 1964 IS A LAW PROVIDING FOR EQUAL
CIVIL RIGHTS IN THAT IT CONFERS SPECIFIC RIGHTS OF RACIAL EQUALITY. 
ACCOMMODATION WITHOUT DISCRIMINATION ON THE GROUND OF RACE.  PP. 788
793. 

(B)  THE UNIQUE LANGUAGE OF SEC 203 OF THE ACT BARS ANY "ATTEMPT TO
PUNISH" ANY PERSON FOR PEACEABLY SEEKING SERVICE IN A PLACE OF PUBLIC
ACCOMMODATION.  AS CONSTRUED IN HAMM, THAT LANGUAGE PROHIBITS EVEN A
PROSECUTION BASED UPON A REFUSAL TO LEAVE SUCH PREMISES WHEN THE
REQUEST TO LEAVE WAS MADE FOR RACIAL REASONS.  PP. 793-794. 

(C)  IF RESPONDENTS WERE ASKED TO LEAVE SOLELY FOR RACIAL REASONS,
THE MERE PENDENCY OF PROSECUTIONS WOULD ENABLE A FEDERAL COURT TO MAKE
A FIRM PREDICTION THAT THEY WOULD BE DENIED THEIR RIGHTS IN THE STATE
COURTS, SINCE THE BURDEN OF HAVING TO DEFEND THE PROSECUTIONS WOULD
ITSELF CONSTITUTE THE DENIAL OF A RIGHT CONFERRED BY THE CIVIL RIGHTS
ACT OF 1964.  PP. 794, 804-805. 

(D)  SUCH A BASIS FOR PREDICTION IS THE EQUIVALENT OF A STATE STATUTE
AUTHORIZING THE PREDICTED DENIAL, A REQUIREMENT ESTABLISHED BY THE
LEADING CASES INTERPRETING SUBSECTION (1) OF SEC 1443.  STRAUDER V.
WEST VIRGINIA, 100 U.S. 303; VIRGINIA V. RIVES, 100 U.S. 313.  PP. 794
804. 

2.  SINCE THE FEDERAL DISTRICT COURT REMANDED THE CASE TO THE STATE
COURT WITHOUT A HEARING, RESPONDENTS HAVE HAD NO OPPORTUNITY TO SHOW
THAT THEY WERE ORDERED TO LEAVE THE FACILITIES COVERED BY THE ACT
SOLELY FOR RACIAL REASONS.  IF THE DISTRICT COURT FINDS THAT ALLEGATION
TRUE, RESPONDENTS HAVE A CLEAR RIGHT TO REMOVAL UNDER SEC 1443(1) AND
DISMISSAL OF THE PROCEEDINGS.  PP. 805-806. 

GEORGIA V. RACHEL ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS QUESTIONS CONCERNING THE SCOPE OF A CENTURY-OLD
FEDERAL LAW THAT PERMITS A DEFENDANT IN STATE COURT PROCEEDINGS TO
TRANSFER HIS CASE TO A FEDERAL TRIAL COURT UNDER CERTAIN CONDITIONS. 
THAT LAW, NOW 28 U.S.C. SEC 1443 (1964 ED.), PROVIDES: 

"SEC 1443.  CIVIL RIGHTS CASES. 

"ANY OF THE FOLLOWING CIVIL ACTIONS OR CRIMINAL PROSECUTIONS,
COMMENCED IN A STATE COURT MAY BE REMOVED BY THE DEFENDANT TO THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT AND DIVISION
EMBRACING THE PLACE WHEREIN IT IS PENDING: 

"(1)  AGAINST ANY PERSON WHO IS DENIED OR CANNOT ENFORCE IN THE
COURTS OF SUCH STATE A RIGHT UNDER ANY LAW PROVIDING FOR THE EQUAL
CIVIL RIGHTS OF CITIZENS OF THE UNITED STATES, OR OF ALL PERSONS WITHIN
THE JURISDICTION THEREOF; 

"(2)  FOR ANY ACT UNDER COLOR OF AUTHORITY DERIVED FROM ANY LAW
PROVIDING FOR EQUAL RIGHTS, OR FOR REFUSING TO DO ANY ACT ON THE GROUND
THAT IT WOULD BE INCONSISTENT WITH SUCH LAW." 

THE CASE ARISES FROM A REMOVAL PETITION FILED BY THOMAS RACHEL AND 19
OTHER DEFENDANTS SEEKING TO TRANSFER TO THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF GEORGIA CRIMINAL TRESPASS
PROSECUTIONS PENDING AGAINST THEM IN THE SUPERIOR COURT OF FULTON
COUNTY, GEORGIA.  THE PETITION STATED THAT THE DEFENDANTS HAD BEEN
ARRESTED ON VARIOUS DATES IN THE SPRING OF 1963 WHEN THEY SOUGHT TO
OBTAIN SERVICE AT PRIVATELY OWNED RESTAURANTS OPEN TO THE GENERAL
PUBLIC IN ATLANTA, GEORGIA.  THE DEFENDANTS ALLEGED: 

"THEIR ARRESTS WERE EFFECTED FOR THE SOLE PURPOSE OF AIDING,
ABETTING, AND PERPETUATING CUSTOMS, AND USAGES WHICH HAVE DEEP
HISTORICAL AND PHSYCHOLOGICAL ROOTS IN THE MORES AND ATTITUDES WHICH
EXIST WITHIN THE CITY OF ATLANTA WITH RESPECT TO SERVING AND SEATING
MEMBERS OF THE NEGRO RACE IN SUCH PLACES OF PUBLIC ACCOMMODATION AND
CONVENIENCE UPON A RACIALLY DISCRIMINATORY BASIS AND UPON TERMS AND
CONDITIONS NOT IMPOSED UPON MEMBERS OF THE SO-CALLED WHITE OR CAUCASIAN
RACE.  MEMBERS OF THE SO-CALLED WHITE OR CAUCASIAN RACE ARE SIMILARLY
TREATED AND DISCRIMINATED AGAINST WHEN ACCOMPANIED BY MEMBERS OF THE
NEGRO RACE." 

EACH DEFENDANT, ACCORDING TO THE PETITION, WAS THEN INDICTED UNDER
THE GEORGIA STATUTE MAKING IT A MISDEMEANOR TO REFUSE TO LEAVE THE
PREMISES OF ANOTHER WHEN REQUESTED TO DO SO BY THE OWNER OR THE PERSON
IN CHARGE.  (FN1)  ON THESE ALLEGATIONS, THE DEFENDANTS MAINTAINED THAT
REMOVAL WAS AUTHORIZED UNDER BOTH SUBSECTIONS OF 28 U.S.C. SEC 1443. 
THE DEFENDANTS MAINTAINED BROADLY THAT THEY WERE ENTITLED TO REMOVAL
UNDER THE FIRST AMENDMENT AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  SPECIFICALLY INVOKING THE LANGUAGE OF SUBSECTION (1), THE
"DENIED OR CANNOT ENFORCE" CLAUSE, THEIR PETITION STATED: 

"PETITIONERS ARE DENIED AND/OR CANNOT ENFORCE IN THE COURTS OF THE
STATE OF GEORGIA RIGHTS UNDER THE CONSTITUTION AND LAWS OF THE UNITED
STATES PROVIDING FOR THE EQUAL RIGHTS OF CITIZENS OF THE UNITED STATES
...  IN THAT, AMONG OTHER THINGS, THE STATE OF GEORGIA BY STATUTE,
CUSTOM, USAGE, AND PRACTICE SUPPORTS AND MAINTAINS A POLICY OF RACIAL
DISCRIMINATION." 

INVOKING THE LANGUAGE OF SUBSECTION (2), THE "COLOR OF AUTHORITY"
CLAUSE, THE PETITION STATED: 

"PETITIONERS ARE BEING PROSECUTED FOR ACTS DONE UNDER COLOR OF
AUTHORITY DERIVED FROM THE CONSTITUTION AND LAWS OF THE UNITED STATES
AND FOR REFUSING TO DO AN ACT WHICH WAS, AND IS, INCONSISTENT WITH THE
CONSTITUTION AND LAWS OF THE UNITED STATES." 

ON ITS OWN MOTION AND WITHOUT A HEARING, THE FEDERAL DISTRICT COURT
REMANDED THE CASES TO THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA,
FINDING THAT THE PETITION DID NOT ALLEGE FACTS SUFFICIENT TO SUSTAIN
REMOVAL UNDER THE FEDERAL STATUTE.  THE DEFENDANTS APPEALED TO THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT.  (FN2) 

WHILE THE CASE WAS PENDING IN THAT COURT, TWO EVENTS OF CRITICAL
SIGNIFICANCE TOOK PLACE.  THE FIRST OF THESE WAS THE ENACTMENT INTO LAW
BY THE UNITED STATES CONGRESS OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT.
241.  THE SECOND WAS THE DECISION OF THIS COURT IN HAMM V. CITY OF ROCK
HILL, 379 U.S. 306.  THAT CASE HELD THAT THE ACT PRECLUDES STATE
TRESPASS PROSECUTIONS FOR PEACEFUL ATTEMPTS TO BE SERVED UPON AN EQUAL
BASIS IN ESTABLISHMENTS COVERED BY THE ACT, EVEN THOUGH THE
PROSECUTIONS WERE INSTITUTED PRIOR TO THE ACT'S PASSAGE.  (FN3)  IN
VIEW OF THESE INTERVENING DEVELOPMENTS IN THE LAW, THE COURT OF APPEALS
REVERSED THE DISTRICT COURT.  IN TERMS OF THE LANGUAGE OF SEC 1443(1),
THE COURT HELD THAT, IF THE ALLEGATIONS IN THE PETITION WERE TRUE,
PROSECUTION IN THE COURTS OF GEORGIA UNDER THAT STATE'S TRESPASS
STATUTE, SUBSTANTIALLY SIMILAR TO THE STATE STATUTES INVOLVED IN HAMM,
DENIED THE DEFENDANTS A RIGHT UNDER A LAW PROVIDING FOR EQUAL CIVIL
RIGHTS - THE CIVIL RIGHTS ACT OF 1964.  THE CASE WAS THEREFORE RETURNED
TO THE DISTRICT COURT, WITH DIRECTIONS THAT THE DEFENDANTS BE GIVEN AN
OPPORTUNITY TO PROVE THAT THEIR PROSECUTIONS HAD RESULTED FROM ORDERS
TO LEAVE PLACES OF PUBLIC ACCOMMODATION "FOR RACIAL REASONS."  UPON
SUCH PROOF, THE COURT HELD THAT HAMM WOULD THEN REQUIRE THE DISTRICT
COURT TO ORDER DISMISSAL OF THE PROSECUTIONS.  342 F.2D 336, 343. 

WE GRANTED CERTIORARI TO CONSIDER THE APPLICABILITY OF THE REMOVAL
STATUTE TO THE CIRCUMSTANCES OF THIS CASE.  382 U.S. 808.  NO ISSUES
TOUCHING THE CONSTITUTIONAL POWER OF CONGRESS ARE INVOLVED.  WE DEAL
ONLY WITH QUESTIONS OF STATUTORY CONSTRUCTION.  (FN4) 

THE PRESENT STATUTE IS A DIRECT DESCENDANT OF A PROVISION ENACTED AS
PART OF THE CIVIL RIGHTS ACT OF 1866.  14 STAT. 27.  THE SUBSECTION
THAT IS NOW SEC 1443 (1) WAS BEFORE THIS COURT IN A SERIES OF DECISIONS
BEGINNING WITH STRAUDER V. WEST VIRGINIA, 100 U.S. 303, AND VIRGINIA V.
RIVES, 100 U.S. 313, IN 1880 AND ENDING WITH KENTUCKY V. POWERS, 201
U.S. 1, IN 1906.  (FN5)  THE COURT HAS NOT CONSIDERED THE REMOVAL
STATUTE SINCE THEN, ONE REASON BEING THAT AN ORDER REMANDING A CASE
SOUGHT TO BE REMOVED UNDER SEC 1443 WAS NOT APPEALABLE AFTER THE YEAR
1887.  (FN6)  IN SEC 901 OF THE CIVIL RIGHTS ACT OF 1964, HOWEVER,
CONGRESS SPECIFICALLY PROVIDED FOR APPEALS FROM REMAND ORDERS IN SEC
1443 CASES, SO AS TO GIVE THE FEDERAL REVIEWING COURTS A NEW
OPPORTUNITY TO CONSIDER THE MEANING AND SCOPE OF THE REMOVAL STATUTE. 
(FN7)  78 STAT. 266, 28 U.S.C.  SEC 1447(D) (1964 ED.).  THE COURTS OF
APPEALS IN FOUR CIRCUITS HAVE NOW HAD OCCASION TO GIVE EXTENSIVE
CONSIDERATION TO VARIOUS ASPECTS OF THE REMOVAL STATUTE.  (FN8)  IN THE
CASE BEFORE US, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT DEALT ONLY
WITH ISSUES ARISING UNDER THE FIRST SUBSECTION OF SEC 1443, AND WE
CONFINE OUR REVIEW TO THOSE ISSUES. 

TO THE FEDERAL COURT ONLY IF THEY MEET BOTH REQUIREMENTS OF THAT
SUBSECTION.  THEY MUST SHOW BOTH THAT THE RIGHT UPON WHICH THEY RELY IS
A "RIGHT UNDER ANY LAW PROVIDING FOR  ...  EQUAL CIVIL RIGHTS," AND
THAT THEY ARE "DENIED OR CANNOT ENFORCE" THAT RIGHT IN THE COURTS OF
GEORGIA. 

THE STATUTORY PHRASE "ANY LAW PROVIDING FOR  ...  EQUAL CIVIL RIGHTS"
DID NOT APPEAR IN THE ORIGINAL REMOVAL PROVISION IN THE CIVIL RIGHTS
ACT OF 1866.  THAT PROVISION ALLOWED REMOVAL ONLY IN CASES INVOLVING
THE EXPRESS STATUTORY RIGHTS OF RACIAL EQUALITY GUARANTEED IN THE ACT
ITSELF.  THE FIRST SECTION OF THE 1866 ACT SECURED FOR ALL CITIZENS THE
"SAME" RIGHTS AS WERE "ENJOYED BY WHITE CITIZENS" IN A VARIETY OF
FUNDAMENTAL AREAS.  (FN9)  SECTION 3, THE REMOVAL SECTION OF THE 1866
ACT, PROVIDED FOR REMOVAL BY "PERSONS WHO ARE DENIED OR CANNOT ENFORCE
...  THE RIGHTS SECURED TO THEM BY THE FIRST SECTION OF THIS ACT  ...
."  (FN10) 

THE PRESENT LANGUAGE "ANY LAW PROVIDING FOR  ...  EQUAL CIVIL RIGHTS"
FIRST APPEARED IN SEC 641 OF THE REVISED STATUTES OF 1874.  (FN11)
WHEN THE REVISED STATUTES WERE COMPILED, THE SUBSTANTIVE AND REMOVAL
PROVISIONS OF THE CIVIL RIGHTS ACT OF 1866 WERE CARRIED FORWARD IN
SEPARATE SECTIONS.  (FN12)  HENCE, CONGRESS COULD NO LONGER IDENTIFY
THE RIGHTS FOR WHICH REMOVAL WAS AVAILABLE BY USING THE LANGUAGE OF THE
ORIGINAL CIVIL RIGHTS ACT - "RIGHTS SECURED TO THEM BY THE FIRST
SUGGEST THAT IT INTENDED TO LIMIT THE SCOPE OF REMOVAL TO RIGHTS
RECOGNIZED IN STATUTES EXISTING IN 1874.  ON THE CONTRARY, CONGRESS'
CHOICE OF THE OPEN-ENDED PHRASE "ANY LAW PROVIDING FOR  ...  EQUAL
CIVIL RIGHTS" WAS CLEARLY APPROPRIATE TO PERMIT REMOVAL IN CASES
INVOLVING "A RIGHT UNDER" BOTH EXISTING AND FUTURE STATUTES THAT
PROVIDED FOR EQUAL CIVIL RIGHTS. 

THERE IS NO SUBSTANTIAL INDICATION, HOWEVER, THAT THE GENERAL
LANGUAGE OF SEC 641 OF THE REVISED STATUTES WAS INTENDED TO EXPAND THE
KINDS OF "LAW" TO WHICH THE REMOVAL SECTION REFERRED.  IN SPITE OF THE
POTENTIAL BREADTH OF THE PHRASE "ANY LAW PROVIDING FOR  ...  EQUAL
CIVIL RIGHTS," IT SEEMS CLEAR THAT IN ENACTING SEC 641, CONGRESS
INTENDED IN THAT PHRASE ONLY TO INCLUDE LAWS COMPARABLE IN NATURE TO
THE CIVIL RIGHTS ACT OF 1866.  PRIOR TO THE 1874 REVISION, CONGRESS HAD
NOT SIGNIFICANTLY ENLARGED THE OPPORTUNITY FOR REMOVAL AVAILABLE TO
PRIVATE PERSONS BEYOND THE RELATIVELY NARROW CATEGORY OF RIGHTS
SPECIFIED IN THE 1866 ACT, EVEN THOUGH THE FOURTEENTH AND FIFTEENTH
AMENDMENTS HAD BEEN ADOPTED AND CONGRESS HAD BROADLY IMPLEMENTED THEM
IN OTHER MAJOR CIVIL RIGHTS LEGISLATION.  (FN13)  MOREOVER, SEC 641
CONTAINED AN EXPLICIT CROSS-REFERENCE AT THE END OF THE SECTION TO SEC
1977 OF THE REVISED STATUTES, WHICH CARRIED FORWARD THE PRINCIPAL
RIGHTS CREATED IN SEC 1 OF THE 1866 ACT.  IN ADDITION, THE NOTE IN THE
MARGIN OF SEC 641 POINTED SPECIFICALLY TO THE REMOVAL PROVISION OF THE
CIVIL RIGHTS ACT OF 1866 AND TO SECS 16 AND 18 OF THE CIVIL RIGHTS ACT
OF 1870.  (FN14)  THE LATTER SECTIONS WERE CONCERNED SOLELY WITH THE RE
ENACTMENT, IN SOMEWHAT EXPANDED FORM, OF THE 1866 ACT.  FINALLY, THE
LIMITATION OF SEC 641 TO LAWS COMPARABLE TO THE CIVIL RIGHTS ACT OF
1866 COMPORTS WITH THE RELATIVELY NARROW MANDATE OF THE REVISING
COMMISSIONERS "TO REVISE, SIMPLIFY, ARRANGE, AND CONSOLIDATE ALL
STATUTES OF THE UNITED STATES, GENERAL AND PERMANENT IN THEIR NATURE,
WHICH SHALL BE IN FORCE AT THE TIME SUCH COMMISSIONERS MAY MAKE THE
FINAL REPORT OF THEIR DOINGS."  ACT OF JUNE 27, 1866, C.140, 14 STAT.
74.  WE CONCLUDE, THEREFORE, THAT THE MODEL FOR THE PHRASE "ANY LAW
PROVIDING FOR  ...  EQUAL CIVIL RIGHTS" IN SEC 641 WAS THE CIVIL RIGHTS
ACT OF 1866. 

THE LEGISLATIVE HISTORY OF THE 1866 ACT CLEARLY INDICATES THAT
CONGRESS INTENDED TO PROTECT A LIMITED CATEGORY OF RIGHTS, SPECIFICALLY
DEFINED IN TERMS OF RACIAL EQUALITY.  AS ORIGINALLY PROPOSED IN THE
SENATE, SEC 1 OF THE BILL THAT BECAME THE 1866 ACT DID NOT CONTAIN THE
PHRASE "AS IS ENJOYED BY WHITE CITIZENS."  (FN15)  THAT PHRASE WAS
LATER ADDED IN COMMITTEE IN THE HOUSE, APPARENTLY TO EMPHASIZE THE
RACIAL CHARACTER OF THE RIGHTS BEING PROTECTED.  MORE IMPORTANT, THE
SENATE BILL DID CONTAIN A GENERAL PROVISION FORBIDDING "DISCRIMINATION
IN CIVIL RIGHTS OR IMMUNITIES," PRECEDING THE SPECIFIC ENUMERATION OF
RIGHTS TO BE INCLUDED IN SEC 1.  (FN16) OBJECTIONS WERE RAISED IN THE
LEGISLATIVE DEBATES TO THE BREADTH OF THE RIGHTS OF RACIAL EQUALITY
THAT MIGHT BE ENCOMPASSED BY A PROHIBITION SO GENERAL AS ONE AGAINST
"DISCRIMINATION IN CIVIL RIGHTS OR IMMUNITIES."  THERE WAS SHARP
CONTROVERSY IN THE SENATE, (FN17) BUT THE BILL PASSED.  AFTER SIMILAR
CONTROVERSY IN THE HOUSE, (FN18) HOWEVER, AN AMENDMENT WAS ACCEPTED
STRIKING THE PHRASE FROM THE BILL.  (FN19) 

ON THE BASIS OF THE HISTORICAL MATERIAL THAT IS AVAILABLE, WE
CONCLUDE THAT THE PHRASE "ANY LAW PROVIDING FOR  ...  EQUAL CIVIL
RIGHTS" MUST BE CONSTRUED TO MEAN ANY LAW PROVIDING FOR SPECIFIC CIVIL
RIGHTS STATED IN TERMS OF RACIAL EQUALITY.  THUS, THE DEFENDANTS' BROAD
CONTENTIONS UNDER THE FIRST AMENDMENT AND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT CANNOT SUPPORT A VALID CLAIM FOR REMOVAL UNDER SEC
1443, BECAUSE THE GUARANTEES OF THOSE CLAUSES ARE PHRASED IN TERMS OF
GENERAL APPLICATION AVAILABLE TO ALL PERSONS OR CITIZENS, RATHER THAN
IN THE SPECIFIC LANGUAGE OF RACIAL EQUALITY THAT SEC 1443 DEMANDS.  AS
THE COURT OF APPEALS FOR THE SECOND CIRCUIT HAS CONCLUDED, SEC 1443
"APPLIES ONLY TO RIGHTS THAT ARE GRANTED IN TERMS OF EQUALITY AND NOT
TO THE WHOLE GAMUT OF CONSTITUTIONAL RIGHTS  ...  ."  "WHEN THE REMOVAL
STATUTE SPEAKS OF 'ANY LAW PROVIDING FOR EQUAL RIGHTS,' IT REFERS TO
THOSE LAWS THAT ARE COUCHED IN TERMS OF EQUALITY, SUCH AS THE HISTORIC
AND THE RECENT EQUAL RIGHTS STATUTES, AS DISTINGUISHED FROM LAWS, OF
WHICH THE DUE PROCESS CLAUSE AND 42 U.S.C. SEC 1983 ARE SUFFICIENT
EXAMPLES, THAT CONFER EQUAL RIGHTS IN THE SENSE, VITAL TO OUR WAY OF
LIFE, OF BESTOWING THEM UPON ALL."  NEW YORK V. GALAMISON, 342 F.2D
255, 269, 271.  SEE ALSO GIBSON V. MISSISSIPPI, 162 U.S. 565, 585-586;
KENTUCKY V. POWERS, 201 U.S. 1, 39-40; CITY OF GREENWOOD V. PEACOCK,
POST, P. 825.    BUT THE DEFENDANTS IN THE PRESENT CASE DID NOT RELY
SOLELY ON THESE BROAD CONSTITUTIONAL CLAIMS IN THEIR REMOVAL PETITION. 
THEY ALSO MADE ALLEGATIONS CALLING INTO PLAY THE CIVIL RIGHTS ACT OF
1964.  THAT ACT IS CLEARLY A LAW CONFERRING A SPECIFIC RIGHT OF RACIAL
EQUALITY, FOR IN SEC 201(A) IT GUARANTEES TO ALL THE "FULL AND EQUAL
ENJOYMENT" OF THE FACILITIES OF ANY PLACE OF PUBLIC ACCOMMODATION
WITHOUT DISCRIMINATION ON THE GROUND OF RACE.  (FN20)  BY THAT LANGUAGE
THE ACT PLAINLY QUALIFIES AS A "LAW PROVIDING FOR  ...  EQUAL CIVIL
RIGHTS" WITHIN THE MEANING OF 28 U.S.C. SEC 1443(1). 

MOREOVER, IT IS CLEAR THAT THE RIGHT RELIED UPON AS THE BASIS FOR
REMOVAL IS A "RIGHT UNDER" A LAW PROVIDING FOR EQUAL CIVIL RIGHTS.  THE
REMOVAL PETITION MAY FAIRLY BE READ TO ALLEGE THAT THE DEFENDANTS WILL
BE BROUGHT TO TRIAL SOLELY AS THE RESULT OF PEACEFUL ATTEMPTS TO OBTAIN
SERVICE AT PLACES OF PUBLIC ACCOMMODATION.  (FN21)  THE CIVIL RIGHTS
ACT OF 1964 ENDOWS THE DEFENDANTS WITH A RIGHT NOT TO BE PROSECUTED FOR
SUCH CONDUCT.  AS NOTED, SEC 201(A) GUARANTEES TO THE DEFENDANTS THE
EQUAL ACCESS THEY SOUGHT.  SECTION 203 THEN PROVIDES THAT, "NO PERSON
SHALL  ...  (C) PUNISH OR ATTEMPT TO PUNISH ANY PERSON FOR EXERCISING
OR ATTEMPTING TO EXERCISE ANY RIGHT OR PRIVILEGE SECURED BY SECTION 201
OR 202."  78 STAT. 244.  IN HAMM V. CITY OF ROCK HILL, 379 U.S. 306,
311, THE COURT HELD THAT THIS SECTION OF THE ACT "PROHIBITS PROSECUTION
OF ANY PERSON FOR SEEKING SERVICE IN A COVERED ESTABLISHMENT, BECAUSE
OF HIS RACE OR COLOR."  HENCE, IF THE FACTS ALLEGED IN THE PETITION ARE
TRUE, THE DEFENDANTS NOT ONLY ARE IMMUNE FROM CONVICTION UNDER THE
GEORGIA TRESPASS STATUTE, BUT THEY HAVE A "RIGHT UNDER" THE CIVIL
RIGHTS ACT OF 1964 NOT EVEN TO BE BROUGHT TO TRIAL ON THESE CHARGES IN
THE GEORGIA COURTS. 

THE QUESTION REMAINING, THEN, IS WHETHER WITHIN THE MEANING OF SEC
1443(1), THE DEFENDANTS ARE "DENIED OR CANNOT ENFORCE" THAT RIGHT "IN
THE COURTS OF" GEORGIA.  THAT QUESTION CAN BE ANSWERED ONLY AFTER
CONSIDERATION OF THE LEGISLATIVE AND JUDICIAL HISTORY OF THIS
REQUIREMENT. 

WHEN CONGRESS ADOPTED THE FIRST CIVIL RIGHTS REMOVAL PROVISIONS IN
SEC 3 OF THE CIVIL RIGHTS ACT OF 1866, IT INCORPORATED BY REFERENCE THE
PROCEDURES FOR REMOVAL ESTABLISHED IN SEC 5 OF THE HABEAS CORPUS
SUSPENSION ACT OF 1863, 12 STAT. 756.  THE LATTER SECTION, IN TURN,
PERMITTED REMOVAL EITHER AT THE PRE-TRIAL STAGE OF THE PROCEEDINGS IN
THE STATE COURT OF AFTER FINAL JUDGMENT IN THAT COURT.  (FN22)  THERE
CAN BE NO DOUBT THAT POST-JUDGMENT REMOVAL WAS A PRACTICAL REMEDY FOR
CIVIL RIGHTS DEFENDANTS INVOKING EITHER THE "DENIED OR CANNOT ENFORCE"
CLAUSE OR THE "COLOR OF AUTHORITY" CLAUSE OF THE 1866 REMOVAL
PROVISION, IN ORDER TO VINDICATE RIGHTS THAT HAD ACTUALLY BEEN DENIED
AT THE TRIAL.  (FN23)  THE SCOPE OF PRE-TRIAL REMOVAL, HOWEVER, WAS
UNCLEAR.  (FN24) 

CONGRESS ELIMINATED POST-JUDGMENT REMOVAL WHEN IT ENACTED SEC 641 OF
THE REVISED STATUTES OF 1874.   (FN25)  THE COMPILATION OF THE REVISED
STATUTES COINCIDED WITH THE END OF THE RECONSTRUCTION PERIOD.  DURING
RECONSTRUCTION ITSELF, REMOVAL UNDER SEC 3 OF THE CIVIL RIGHTS ACT OF
1866 HAD BEEN BUT ONE MEASURE ESTABLISHED BY CONGRESS FOR THE
ENFORCEMENT OF THE NUMEROUS STATUTORY RIGHTS CREATED UNDER THE CIVIL
WAR AMENDMENTS.  IN OTHER ENACTMENTS, CONGRESS HAD TAKEN RELATIVELY
MORE DRASTIC STEPS TO ENFORCE THOSE RIGHTS.  (FN26)  BUT BY THE END OF
THE RECONSTRUCTION PERIOD, MANY OF THESE MEASURES HAD EXPIRED, AND BY
ELIMINATING POST-JUDGMENT REMOVAL, CONGRESS HAD SUBSTANTIALLY TRUNCATED
THE ORIGINAL CIVIL RIGHTS REMOVAL PROVISION.  PRE-TRIAL REMOVAL WAS
RETAINED, BUT THE SCOPE OF THE PROVISION HAD NEVER BEEN CLARIFIED.  IT
WAS IN THIS HISTORIC SETTING THAT THE COURT EXAMINED THE SCOPE OF SEC
641.  IN A SERIES OF CASES COMMENCING WITH STRAUDER V. WEST VIRGINIA,
SUPRA, AND VIRGINIA V. RIVES, SUPRA, DECIDED ON THE SAME DAY IN THE
1879 TERM, THE COURT ESTABLISHED A RELATIVELY NARROW, WELL-DEFINED AREA
IN WHICH PRE-TRIAL REMOVAL COULD BE SUSTAINED UNDER THE "DENIED OR
CANNOT ENFORCE" CLAUSE OF THAT SECTION. 

IN STRAUDER, THE REMOVAL PETITION OF A NEGRO INDICTED FOR MURDER
POINTED TO A WEST VIRGINIA STATUTE THAT PERMITTED ONLY WHITE MALE
PERSONS TO SERVE ON A GRAND OR PETIT JURY.  SINCE NEGROES WERE EXCLUDED
FROM JURY SERVICE PURSUANT TO THAT STATUTE, THE DEFENDANT CLAIMED THAT
THE "PROBABILITIES" WERE GREAT THAT HE WOULD SUFFER A DENIAL OF HIS
RIGHT TO THE "FULL AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS IN THE
STATE OF WEST VIRGINIA  ...  ."  100 U.S., AT 304.  THE STATE COURT
DENIED REMOVAL, HOWEVER, AND THE DEFENDANT WAS CONVICTED.  (FN27)  THIS
COURT HELD THAT PRE-TRIAL REMOVAL SHOULD HAVE BEEN GRANTED BECAUSE, IN
THE LANGUAGE OF SEC 641, IT APPEARED EVEN BEFORE TRIAL THAT THE
DEFENDANT WOULD BE DENIED OR COULD NOT ENFORCE A RIGHT SECURED TO HIM
BY A "LAW PROVIDING FOR  ...  EQUAL CIVIL RIGHTS."  THE LAW
SPECIFICALLY INVOKED BY THE COURT WAS SEC 1977 OF THE REVISED STATUTES,
NOW 42 U.S.C. SEC 1981.  THAT LAW, THE COURT HELD, CONFERRED UPON THE
DEFENDANT THE RIGHT TO HAVE HIS JURORS SELECTED WITHOUT DISCRIMINATION
ON THE GROUND OF RACE.  BECAUSE OF THE DIRECT CONFLICT BETWEEN THE WEST
VIRGINIA STATUTE AND SEC 1977, THE COURT IN STRAUDER HELD THAT THE
DEFENDANT WOULD BE THE VICTIM OF "A DENIAL BY THE STATUTE LAW OF THE
STATE."  100 U.S., AT 312. 

IN VIRGINIA V. RIVES, HOWEVER, THE DEFENDANTS COULD POINT TO NO SUCH
STATE STATUTE AS THE BASIS FOR REMOVAL.  THEIR PETITION ALLEGED THAT
STRONG COMMUNITY RACIAL PREJUDICE EXISTED AGAINST THEM, THAT THE GRAND
AND PETIT JURORS SUMMONED TO TRY THEM WERE ALL WHITE, THAT NEGROES HAD
NEVER BEEN ALLOWED TO SERVE ON COUNTY JURIES IN CASES IN WHICH A NEGRO
WAS INVOLVED IN ANY WAY, AND THAT THE JUDGE, THE PROSECUTOR, AND THE
ASSISTANT PROSECUTOR HAD ALL REJECTED THEIR REQUEST THAT NEGROES BE
INCLUDED IN THE PETIT JURY.  HENCE, THE DEFENDANTS MAINTAINED, THEY
COULD NOT OBTAIN A FAIR TRIAL IN THE STATE COURT.  BUT THE ONLY
RELEVANT VIRGINIA STATUTE TO WHICH THE PETITION REFERRED IMPOSED JURY
DUTY ON ALL MALES WITHIN A CERTAIN AGE RANGE.  THUS, THE LAW OF
VIRGINIA DID NOT, ON ITS FACE, SANCTION THE DISCRIMINATION OF WHICH THE
DEFENDANTS COMPLAINED.  THIS COURT HELD THAT THE PETITION STATED NO
GROUND FOR REMOVAL.  CRITICAL TO ITS HOLDING WAS THE COURT'S
OBSERVATION THAT SEC 641 OF THE REVISED STATUTES AUTHORIZED ONLY PRE
TRIAL REMOVAL.  THE COURT CONCLUDED: 

"THE DENIAL OR INABILITY TO ENFORCE IN THE JUDICIAL TRIBUNALS OF A
STATE, RIGHTS SECURED TO A DEFENDANT BY ANY LAW PROVIDING FOR  ...
EQUAL CIVIL RIGHTS  ...  OF WHICH SECT.  641 SPEAKS, IS PRIMARILY, IF
NOT EXCLUSIVELY, A DENIAL OF SUCH RIGHTS, OR AN INABILITY TO ENFORCE
THEM, RESULTING FROM THE CONSTITUTION OR LAWS OF THE STATE, RATHER THAN
A DENIAL FIRST MADE MANIFEST AT THE TRIAL OF THE CASE.  IN OTHER WORDS,
THE STATUTE HAS REFERENCE TO A LEGISLATIVE DENIAL OR AN INABILITY
RESULTING FROM IT. MANY SUCH CASES OF DENIAL MIGHT HAVE BEEN
APPREHENDED, AND SOME EXISTED.  COLORED MEN MIGHT HAVE BEEN, AS THEY
HAD BEEN, DENIED A TRIAL BY JURY.  THEY MIGHT HAVE BEEN EXCLUDED BY LAW
FROM ANY JURY SUMMONED TO TRY PERSONS OF THEIR RACE, OR THE LAW MIGHT
HAVE DENIED TO THEM THE TESTIMONY OF COLORED MEN IN THEIR FAVOR, OR
PROCESS FOR SUMMONING WITNESSES  ...  .  IN ALL SUCH CASES A DEFENDANT
CAN AFFIRM, ON OATH, BEFORE TRIAL, THAT HE IS DENIED THE EQUAL
PROTECTION OF THE LAWS OR EQUALITY OF CIVIL RIGHTS.  BUT IN THE ABSENCE
OF CONSTITUTIONAL OR LEGISLATIVE IMPEDIMENTS HE CANNOT SWEAR BEFORE HIS
CASE COMES TO TRIAL THAT HIS ENJOYMENT OF ALL HIS CIVIL RIGHTS IS
DENIED TO HIM.  WHEN HE HAS ONLY AN APPREHENSION THAT SUCH RIGHTS WILL
BE WITHHELD FROM HIM WHEN HIS CASE SHALL COME TO TRIAL, HE CANNOT
AFFIRM THAT THEY ARE ACTUALLY DENIED, OR THAT HE CANNOT ENFORCE THEM. 
YET SUCH AN AFFIRMATION IS ESSENTIAL TO HIS RIGHT TO REMOVE HIS CASE. 
BY THE EXPRESS REQUIREMENT OF THE STATUTE HIS PETITION MUST SET FORTH
THE FACTS UPON WHICH HE BASES HIS CLAIM TO HAVE HIS CASE REMOVED, AND
NOT MERELY HIS BELIEF THAT HE CANNOT ENFORCE HIS RIGHTS AT A SUBSEQUENT
STAGE OF THE PROCEEDINGS.  THE STATUTE WAS NOT, THEREFORE, INTENDED AS
A CORRECTIVE OF ERRORS OR WRONGS COMMITTED BY JUDICIAL TRIBUNALS IN THE
ADMINISTRATION OF THE LAW AT THE TRIAL."  100 U.S., AT 319-320. 

THE COURT ACKNOWLEDGED THAT EVEN THOUGH VIRGINIA'S STATUTE DID NOT
AUTHORIZE DISCRIMINATION IN JURY SELECTION, THE OFFICER IN CHARGE OF
THE SELECTION MIGHT NEVERTHELESS BRING IT ABOUT. 

"BUT WHEN A SUBORDINATE OFFICER OF THE STATE, IN VIOLATION OF STATE
LAW, UNDERTAKES TO DEPRIVE AN ACCUSED PARTY OF A RIGHT WHICH THE
STATUTE LAW ACCORDS TO HIM, AS IN THE CASE AT BAR, IT CAN HARDLY BE
SAID THAT HE IS DENIED, OR CANNOT ENFORCE, 'IN THE JUDICIAL TRIBUNALS
OF THE STATE' THE RIGHTS WHICH BELONG TO HIM.  IN SUCH A CASE IT OUGHT
TO BE PRESUMED THE COURT WILL REDRESS THE WRONG."  100 U.S., AT 321
322. 

THE COURT DISTINGUISHED THE SITUATION IN STRAUDER: 

"IT IS TO BE OBSERVED THAT SEC 641 GIVES THE RIGHT OF REMOVAL ONLY TO
A PERSON 'WHO IS DENIED, OR CANNOT ENFORCE, IN THE JUDICIAL TRIBUNALS
OF THE STATE HIS EQUAL CIVIL RIGHTS.'  AND THIS IS TO APPEAR BEFORE
TRIAL.  WHEN A STATUTE OF THE STATE DENIES HIS RIGHT, OR INTERPOSES A
BAR TO HIS ENFORCING IT, IN THE JUDICIAL TRIBUNALS, THE PRESUMPTION IS
FAIR THAT THEY WILL BE CONTROLLED BY IT IN THEIR DECISIONS; AND IN SUCH
A CASE A DEFENDANT MAY AFFIRM ON OATH WHAT IS NECESSARY FOR A REMOVAL. 
SUCH A CASE IS CLEARLY WITHIN THE PROVISIONS OF SECT.  641."  100 U.S.,
AT 321. 

STRAUDER AND RIVES THUS TEACH THAT REMOVAL IS NOT WARRANTED BY AN
ASSERTION THAT A DENIAL OF RIGHTS OF EQUALITY MAY TAKE PLACE AND GO
UNCORRECTED AT TRIAL.  REMOVAL IS WARRANTED ONLY IF IT CAN BE PREDICTED
BY REFERENCE TO A LAW OF GENERAL APPLICATION THAT THE DEFENDANT WILL BE
DENIED OR CANNOT ENFORCE THE SPECIFIED FEDERAL RIGHTS IN THE STATE
COURTS.  A STATE STATUTE AUTHORIZING THE DENIAL AFFORDS AN AMPLE BASIS
FOR SUCH A PREDICTION. 

THE DOCTRINE ANNOUNCED IN STRAUDER AND RIVES WAS AMPLIFIED IN NEAL V.
DELAWARE, 103 U.S. 370, AND BUSH V. KENTUCKY, 107 U.S. 110.  IN BOTH
CASES, THE COURT REVERSED CONVICTIONS ON THE GROUND THAT JURY SELECTION
HAD BEEN CONDUCTED PURSUANT TO A POLICY OF RACIAL DISCRIMINATION.  YET
IN BOTH CASES THE COURT ALSO HELD THAT A PRE-TRIAL REMOVAL PETITION
ALLEGING SUCH DISCRIMINATION STATED NO GROUND FOR REMOVAL.  IN NEAL THE
PETITION RELIED UPON A DELAWARE CONSTITUTIONAL PROVISION, ADOPTED PRIOR
TO THE ADVENT OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS, THAT
PURPORTEDLY SANCTIONED DISCRIMINATORY JURY SELECTION.  BUT THE DELAWARE
COURT IN WHICH THE PETITION HAD BEEN FILED HELD THAT THE SUBSEQUENT
AMENDMENTS RENDERED THE STATE PROVISION VOID.  HENCE, UNLIKE STRAUDER,
THE NEAL CASE INVOLVED NO LAW OF THE STATE UPON WHICH TO FOUND A
SUITABLE PREDICTION THAT RIGHTS OF EQUALITY WOULD BE DENIED IN THE
COURTS OF THE STATE.  IN BUSH, THE PETITION RELIED UPON A KENTUCKY JURY
EXCLUSION STATUTE DRAWN ALONG RACIAL LINES THAT HAD BEEN ENACTED AFTER
THE ADOPTION OF THE FOURTEENTH AMENDMENT.  BUT PRIOR TO BUSH'S TRIAL,
THE KENTUCKY COURT OF APPEALS HAD HELD, IN ANOTHER CASE, THAT THE
STATUTE WAS UNCONSTITUTIONAL.  THIS COURT NOTED THAT THE JUDICIAL
DECLARATION WAS BINDING UPON ALL INFERIOR KENTUCKY COURTS AND CONCLUDED
THAT, "AFTER THAT DECISION, SO LONG AS IT WAS UNMODIFIED, IT COULD NOT
HAVE BEEN PROPERLY SAID IN ADVANCE OF A TRIAL THAT THE DEFENDANT IN A
CRIMINAL PROSECUTION WAS DENIED OR COULD NOT ENFORCE IN THE JUDICIAL
TRIBUNALS OF KENTUCKY THE RIGHTS SECURED TO HIM BY ANY LAW PROVIDING
FOR  ...  EQUAL CIVIL RIGHTS  ...  ."  107 U.S., AT 116.   IN BOTH NEAL
AND BUSH, THEN, THE COURT HELD THAT IN THE ABSENCE OF A PRESENTLY
EFFECTIVE STATE LAW AUTHORIZING THE PREDICTED DENIAL, THE STATE COURT
WAS THE PROPER FORUM FOR THE RESOLUTION OF THE CLAIMS THAT RIGHTS OF
EQUALITY WOULD BE DENIED, EVEN THOUGH, AS THE COURT ALSO HELD, THE
STATE COURTS HAD ULTIMATELY FAILED TO CORRECT THE DENIALS THAT IN FACT
TOOK PLACE AT THE DEFENDANTS' TRIALS IN THOSE TWO CASES. 

FOUR SUBSEQUENT DECISIONS, ALSO INVOLVING CLAIMS OF RACIAL
DISCRIMINATION IN JURY SELECTION, REITERATED THE PRINCIPLES ANNOUNCED
IN STRAUDER AND RIVES, AND AMPLIFIED IN NEAL AND BUSH.  (FN28) THE
FINAL REMOVAL CASE DECIDED BY THIS COURT WAS KENTUCKY V. POWERS, 201
U.S. 1.  IN THAT CASE, WHICH INVOLVED ALLEGED DISCRIMINATION ON A
POLITICAL BASIS, THE DEFENDANT WAS ABOUT TO UNDERGO HIS FOURTH TRIAL,
HAVING BEEN SUCCESSFUL ON APPEAL AFTER THREE PRIOR VERDICTS OF GUILTY. 
HE COULD THEREFORE ENHANCE HIS PREDICTION THAT RIGHTS WOULD BE DENIED
BY POINTING TO INSTANCES OF ILLEGALITY IN THE THREE PRIOR PROCEEDINGS
AGAINST HIM.  BUT THE PETITION FOR REMOVAL RESEMBLED THOSE IN THE CASES
THAT FOLLOWED STRAUDER IN THAT IT POINTED TO NO STATE ENACTMENT THAT
AUTHORIZED THE PREDICTED DENIAL.  ACCORDINGLY, RESTATING THE STRAUDER
RIVES DOCTRINE, THIS COURT HELD THAT NO CASE FOR REMOVAL HAD BEEN MADE
OUT. 

IN THE LINE OF CASES FROM STRAUDER TO POWERS, THE COURT INTERPRETED
SEC 641 OF THE REVISED STATUTES OF 1874.  THAT STATUTE HAS COME DOWN TO
US, IN MODIFIED FORM, AS SEC 1443.  BUT IN ITS FIRST SUBSECTION, THE
PRESENT REMOVAL STATUTE STILL REQUIRES THAT A PETITIONER BE ONE WHO "IS
DENIED OR CANNOT ENFORCE IN THE COURTS OF" A STATE THE RIGHTS HE SEEKS
TO VINDICATE BY REMOVING THE CASE TO FEDERAL COURT.  THERE IS NO
SUGGESTION THAT THE MODIFICATIONS IN THE STATUTE SINCE 1874 WERE
INTENDED TO EFFECT ANY CHANGE IN SUBSTANCE.  HENCE, FOR THE PURPOSES OF
THE PRESENT CASE, WE ARE DEALING WITH THE SAME STATUTE THAT CONFRONTED
THE COURT IN THE CASES INTERPRETING SEC 641.  (FN29) 

THE STRAUDER-RIVES DOCTRINE, AS CONSISTENTLY APPLIED IN ALL THESE
CASES, REQUIRED A REMOVAL PETITION TO ALLEGE, NOT MERELY THAT RIGHTS OF
EQUALITY WOULD BE DENIED OR COULD NOT BE ENFORCED, BUT THAT THE DENIAL
WOULD TAKE PLACE IN THE COURTS OF THE STATE.  THE DOCTRINE ALSO
REQUIRED THAT THE DENIAL BE MANIFEST IN A FORMAL EXPRESSION OF STATE
LAW.  THIS REQUIREMENT SERVED TWO ENDS.  IT ENSURED THAT REMOVAL WOULD
BE AVAILABLE ONLY IN CASES WHERE THE PREDICTED DENIAL APPEARED WITH
RELATIVE CLARITY PRIOR TO TRIAL.  IT ALSO ENSURED THAT THE TASK OF
PREDICTION WOULD NOT INVOLVE A DETAILED ANALYSIS BY A FEDERAL JUDGE OF
THE LIKELY DISPOSITION OF PARTICULAR FEDERAL CLAIMS BY PARTICULAR STATE
COURTS.  THAT TASK NOT ONLY WOULD HAVE BEEN DIFFICULT, BUT IT ALSO
WOULD HAVE INVOLVED FEDERAL JUDGES IN THE UNSEEMLY PROCESS OF
PREJUDGING THEIR BRETHREN OF THE STATE COURTS.  THUS, THE COURT IN
STRAUDER AND RIVES CONCLUDED THAT A STATE ENACTMENT, DISCRIMINATORY ON
ITS FACE, SO CLEARLY AUTHORIZED DISCRIMINATION THAT IT COULD BE TAKEN
AS A SUITABLE INDICATION THAT ALL COURTS IN THAT STATE WOULD DISREGARD
THE FEDERAL RIGHT OF EQUALITY WITH WHICH THE STATE ENACTMENT WAS
PRECISELY IN CONFLICT. 

IN RIVES ITSELF, HOWEVER, THE COURT NOTED THAT THE DENIAL OF WHICH
THE REMOVAL PROVISION SPEAKS "IS PRIMARILY, IF NOT EXCLUSIVELY, A
DENIAL  ...  RESULTING FROM THE CONSTITUTION OR LAWS OF THE STATE  ...
."  100 U.S., AT 319.  THIS STATEMENT WAS REAFFIRMED IN GIBSON V.
MISSISSIPPI, 162 U.S. 565, 581.  THE COURT THEREBY GAVE SOME INDICATION
THAT REMOVAL MIGHT BE JUSTIFIED, EVEN IN THE ABSENCE OF A
DISCRIMINATORY STATE ENACTMENT, IF AN EQUIVALENT BASIS COULD BE SHOWN
FOR AN EQUALLY FIRM PREDICTION THAT THE DEFENDANT WOULD BE "DENIED OR
CANNOT ENFORCE" THE SPECIFIED FEDERAL RIGHTS IN THE STATE COURT.  SUCH
A BASIS FOR PREDICTION EXISTS IN THE PRESENT CASE. 

IN THE NARROW CIRCUMSTANCES OF THIS CASE, ANY PROCEEDINGS IN THE
COURTS OF THE STATE WILL CONSTITUTE A DENIAL OF THE RIGHTS CONFERRED BY
THE CIVIL RIGHTS ACT OF 1964, AS CONSTRUED IN HAMM V. CITY OF ROCK
HILL, IF THE ALLEGATIONS OF THE REMOVAL PETITION ARE TRUE.  THE REMOVAL
PETITION ALLEGES, IN EFFECT, THAT THE DEFENDANTS REFUSED TO LEAVE
FACILITIES OF PUBLIC ACCOMMODATION, WHEN ORDERED TO DO SO SOLELY FOR
RACIAL REASONS, AND THAT THEY ARE CHARGED UNDER A GEORGIA TRESPASS
STATUTE THAT MAKES IT A CRIMINAL OFFENSE TO REFUSE TO OBEY SUCH AN
ORDER.  THE CIVIL RIGHTS ACT OF 1964, HOWEVER, AS HAMM V. CITY OF ROCK
HILL, 379 U.S. 306, MADE CLEAR, PROTECTS THOSE WHO REFUSE TO OBEY SUCH
AN ORDER NOT ONLY FROM CONVICTION IN STATE COURTS, BUT FROM PROSECUTION
IN THOSE COURTS.  HAMM EMPHASIZED THE PRECISE TERMS OF SEC 203(C) THAT
PROHIBIT ANY "ATTEMPT TO PUNISH" PERSONS FOR EXERCISING RIGHTS OF
EQUALITY CONFERRED UPON THEM BY THE ACT.  THE EXPLICIT TERMS OF THAT
ADMITTANCE TO OR REMAIN IN ESTABLISHMENTS COVERED BY THE ACT, ARE
IMMUNIZED FROM PROSECUTION  ...  ."  379 U.S., AT 311.  THE 1964 ACT
THEREFORE "SUBSTITUTES A RIGHT FOR A CRIME."  379 U.S., AT 314.  HENCE,
IF AS ALLEGED IN THE PRESENT REMOVAL PETITION, THE DEFENDANTS WERE
ASKED TO LEAVE SOLELY FOR RACIAL REASONS, THEN THE MERE PENDENCY OF THE
PROSECUTIONS ENABLES THE FEDERAL COURT TO MAKE THE CLEAR PREDICTION
THAT THE DEFENDANTS WILL BE "DENIED OR CANNOT ENFORCE IN THE COURTS OF
THE STATE" THE RIGHT TO BE FREE OF ANY "ATTEMPT TO PUNISH" THEM FOR
PROTECTED ACTIVITY.  IT IS NO ANSWER IN THESE CIRCUMSTANCES THAT THE
DEFENDANTS MIGHT EVENTUALLY PREVAIL IN THE STATE COURT.  (FN30)  THE
BURDEN OF HAVING TO DEFEND THE PROSECUTIONS IS ITSELF THE DENIAL OF A
RIGHT EXPLICITLY CONFERRED BY THE CIVIL RIGHTS ACT OF 1964 AS CONSTRUED
IN HAMM V. CITY OF ROCK HILL, SUPRA. 

SINCE THE FEDERAL DISTRICT COURT REMANDED THE PRESENT CASE WITHOUT A
HEARING, THE DEFENDANTS AS YET HAVE HAD NO OPPORTUNITY TO ESTABLISH
THAT THEY WERE ORDERED TO LEAVE THE RESTAURANT FACILITIES SOLELY FOR
RACIAL REASONS.  IF THE FEDERAL DISTRICT COURT FINDS THAT ALLEGATION
TRUE, THE DEFENDANTS' RIGHT TO REMOVAL UNDER SEC 1443(1) WILL BE
CLEAR.  (FN31)  THE STRAUDER-RIVES DOCTRINE REQUIRES NO MORE, FOR THE
DENIAL IN THE COURTS OF THE STATE THEN CLEARLY APPEARS WITHOUT ANY
DETAILED ANALYSIS OF THE LIKELY BEHAVIOR OF ANY PARTICULAR STATE
COURT.  UPON SUCH A FINDING IT WILL BE APPARENT THAT THE CONDUCT OF THE
DEFENDANTS IS "IMMUNIZED FROM PROSECUTION" IN ANY COURT, AND THE
FEDERAL DISTRICT COURT MUST THEN SUSTAIN THE REMOVAL AND DISMISS THE
PROSECUTIONS. 

FOR THESE REASONS, THE JUDGMENT IS AFFIRMED. 

FOR APPENDIX (APPENDIX OMITTED) TO OPINION OF THE COURT, SEE FACING
PAGE. 

FN1  THE STATUTE UNDER WHICH THE DEFENDANTS WERE CHARGED, GA. CODE
ANN. SEC 26-3005 (1965 CUM. SUPP.), PROVIDES: 

"REFUSAL TO LEAVE PREMISES OF ANOTHER WHEN ORDERED TO DO SO BY OWNER
OR PERSON IN CHARGE.  IT SHALL BE UNLAWFUL FOR ANY PERSON, WHO IS ON
THE PREMISES OF ANOTHER, TO REFUSE AND FAIL TO LEAVE SAID PREMISES WHEN
REQUESTED TO DO SO BY THE OWNER OR ANY PERSON IN CHARGE OF SAID
PREMISES OR THE AGENT OR EMPLOYEE OF SUCH OWNER OR SUCH PERSON IN
CHARGE.  ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE
GUILTY OF A MISDEMEANOR AND UPON CONVICTION THEREOF SHALL BE PUNISHED
AS FOR A MISDEMEANOR." 

FN2  WE REJECT THE STATE'S CONTENTION THAT THE APPEAL WAS UNTIMELY. 
THE NOTICE OF APPEAL WAS FILED 16 DAYS AFTER THE ORDER TO REMAND. 
ALTHOUGH RULE 37(A)(2) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
REQUIRES THAT AN APPEAL BE TAKEN WITHIN 10 DAYS AFTER ENTRY OF THE
ORDER APPEALED FROM, THAT RULE DOES NOT GOVERN AN APPEAL TAKEN PRIOR TO
VERDICT, FINDING OF GUILTY OR NOT GUILTY BY THE COURT, OR PLEA OF
GUILTY.  THIS COURT PROMULGATED RULES 32-29 UNDER AUTHORITY OF THE ACT
OF FEBRUARY 24, 1933, WHICH AUTHORIZED ONLY RULES GOVERNING PROCEEDINGS
IN CRIMINAL CASES AFTER VERDICT, FINDING OF GUILTY OR NOT GUILTY BY THE
COURT, OR PLEA OF GUILTY.  47 STAT. 904, AS AMENDED, 18 U.S.C. SEC 3772
(1964 ED.).  SEE 327 U.S. 825.  IN 1940, CONGRESS AUTHORIZED THE COURT
TO PRESCRIBE RULES FOR CRIMINAL PROCEEDINGS PRIOR TO VERDICT, FINDING
OF GUILTY OR NOT GUILTY BY THE COURT, OR PLEA OF GUILTY.  54 STAT. 688,
AS AMENDED, 18 U.S.C. SEC 3771 (1964 ED.).  BUT THIS AUTHORIZATION
REQUIRED THAT THE RULES BE SUBMITTED TO CONGRESS BEFORE THEY COULD TAKE
EFFECT.  ONLY RULES 1-31 AND 40-60 WERE SO SUBMITTED.  327 U.S. 824. 

FN3  "THE SUPREMACY CLAUSE, ART. VI, CL. 2, REQUIRES THIS RESULT
WHERE 'THERE IS A CLEAR COLLISION' BETWEEN STATE AND FEDERAL LAW  ...
"  HAMM V. CITY OF ROCK HILL, 379 U.S. 306, 311. 

FN4  FOR A REMARKABLY ORIGINAL AND COMPREHENSIVE DISCUSSION OF THE
ISSUES PRESENTED IN THIS CASE AND IN CITY OF GREENWOOD V. PEACOCK,
POST, P. 808, SEE AMSTERDAM, CRIMINAL PROSECUTIONS AFFECTING FEDERALLY
GUARANTEED CIVIL RIGHTS:  FEDERAL REMOVAL AND HABEAS CORPUS
JURISDICTION TO ABORT STATE COURT TRIAL, 113 U. PA. L. REV. 793
(1965). 

FN5  THE INTERVENING CASES WERE:  NEAL V. DELAWARE, 103 U.S. 370;
BUSH V. KENTUCKY, 107 U.S. 110; GIBSON V. MISSISSIPPI, 162 U.S. 565;
SMITH V. MISSISSIPPI, 162 U.S. 592; MURRAY V. LOUISIANA, 163 U.S. 101;
WILLIAMS V. MISSISSIPPI, 170 U.S. 213.  SEE ALSO DUBUCLET V. LOUISIANA,
103 U.S. 550; SCHMIDT V. COBB, 119 U.S. 286. 

FN6  PRIOR TO 1875, A REMAND ORDER WAS REGARDED AS A NONFINAL ORDER
REVIEWABLE BY MANDAMUS, BUT NOT BY APPEAL.  RAILROAD CO. V. WISWALL, 23
WALL.  507.  IN 1875, CONGRESS PROVIDED FOR REVIEW "BY THE SUPREME
COURT ON WRIT OF ERROR OR APPEAL, AS THE CASE MAY BE."  18 STAT. 472. 
TWELVE YEARS LATER, HOWEVER, CONGRESS CLOSED OFF THE APPELLATE AVENUE
IN THE FOLLOWING LANGUAGE: "AND NO APPEAL OR WRIT OF ERROR FROM THE
DECISION OF THE CIRCUIT COURT SO REMANDING SUCH CAUSE SHALL BE
ALLOWED."  24 STAT. 553.  COMPARE GAY V. RUFF, 292 U.S. 25, 28-31.  IN
THE CASE OF IN RE PENNSYLVANIA CO., 137 U.S. 451, THIS COURT HELD THAT
THE 1887 STATUTE WAS ALSO INTENDED TO BAR REVIEW BY MANDAMUS.  UNTIL
ITS AMENDMENT IN 1964, THE MODERN VERSION OF THE STATUTORY BAR, 28
U.S.C. SEC 1447(D) (1964 ED.), PROHIBITED REVIEW OF A REMAND ORDER "ON
APPEAL OR OTHERWISE" IN CASES REMOVED PURSUANT TO ANY STATUTE. 

FN7  SECTION 901 OF THE CIVIL RIGHTS ACT OF 1964 ESTABLISHED AN
EXCEPTION TO THE NONREVIEWABILITY RULE OF 28 U.S.C. SEC 1447(D) FOR
CASES REMOVED PURSUANT TO 28 U.S.C. SEC 1443, BY MAKING REMAND ORDERS
IN THESE CASES "REVIEWABLE BY APPEAL OR OTHERWISE."  28 U.S.C. SEC
1447(D) (1964 ED.).  WE HAVE NO DOUBT THAT CONGRESS THEREBY INTENDED TO
OPEN THE WAY FOR IMMEDIATE APPEAL.  SEE THE REMARKS OF:  REPRESENTATIVE
KASTENMEIER, 110 CONG. REC. 2770; SENATOR HUMPHREY, 110 CONG. REC.
6551; SENATOR KUCHEL, 110 CONG. REC. 6564; SENATOR DODD, 110 CONG. REC.
6955-6956. 

MR. KASTENMEIER HAD ORIGINALLY INTRODUCED A BILL AMENDING SEC 1443
ITSELF, WHICH HE DESCRIBED AS MAKING IT "EASIER TO REMOVE A CASE FROM A
STATE COURT TO A U.S. DISTRICT COURT, WHENEVER IT APPEARS THAT STRICT
IMPARTIALITY IS NOT POSSIBLE IN THE STATE COURT."  109 CONG. REC.
13126, 13128.  IN LATER DEFENDING THE FINAL BILL WHICH SIMPLY MADE
REMAND ORDERS APPEALABLE IN SEC 1443 CASES, HE SAID ON THE HOUSE FLOOR:
"MR. CHAIRMAN, WHAT WE HAVE DONE IS PROBABLY THE MOST MODEST THING
POSSIBLE IN THIS FIELD.  THE SUBCOMMITTEE HAD BEFORE IT A SLIGHTLY MORE
AMBITIOUS SECTION DEALING WITH THIS PROBLEM, AND WOULD HAVE AMENDED
1443 AND 1447, BUT THE COMMITTEE TOOK THE MOST CONSERVATIVE APPROACH
AND PROVIDED MERELY FOR AN APPEAL OF THE REMAND DECISION."  110 CONG.
REC. 2773. 

THE STATEMENTS OF THE LEADERS SPEAKING FOR THE BILL ON THE FLOOR OF
THE SENATE ARE TYPIFIED BY THE FOLLOWING REMARKS OF SENATOR DODD: 

"SOME HAVE THOUGHT THAT IT WOULD BE BETTER FOR CONGRESS TO SPECIFY
DIRECTLY THE KINDS OF CASES WHICH IT THINKS OUGHT TO BE REMOVABLE,
RATHER THAN SIMPLY PERMITTING APPEALS AND ALLOWING THE COURTS TO
CONSIDER THE STATUTE AGAIN IN LIGHT OF THE ORIGINAL INTENTION OF THE
CONGRESS IN 1866.  IT SEEMS TO ME, HOWEVER, THAT THE COURSE WE HAVE
CHOSEN IS MORE APPROPRIATE, CONSIDERING THE RATHER TECHNICAL NATURE OF
THE STATUTE WITH WHICH WE ARE DEALING. 

"IT WOULD BE EXTREMELY DIFFICULT TO SPECIFY WITH PRECISION THE KINDS
OF CASES WHICH OUGHT TO BE REMOVABLE UNDER SECTION 1443.  THIS IS TRUE
BECAUSE OF THE MANY AND VARIED CIRCUMSTANCES WHICH CAN AND DO ARISE IN
CIVIL RIGHTS MATTERS.  ACCORDINGLY, IT SEEMS ADVISABLE TO ALLOW THE
COURTS TO DEAL CASE BY CASE WITH SITUATIONS AS THEY ARISE, AND TO
FASHION THE REMEDY SO AS TO HARMONIZE IT WITH THE OTHER STATUTORY
REMEDIES MADE AVAILABLE FOR DENIALS OF EQUAL CIVIL RIGHTS."  110 CONG.
REC. 6956. 

FN8 IN ADDITION TO THIS CASE AND CITY OF GREENWOOD V. PEACOCK, POST,
P. 808, FROM THE FIFTH CIRCUIT, SEE BAINES V. CITY OF DANVILLE, 357
F.2D 756 (C.A. 4TH CIR.); NEW YORK V. GALAMISON, 342 F.2D 255 (C.A.2D
CIR.). 

THE STATISTICS ON THE NUMBER OF CRIMINAL CASES OF ALL KINDS REMOVED
FROM STATE TO FEDERAL COURTS IN RECENT YEARS ARE REVEALING.  FOR THE
FISCAL YEARS 1962, 1963, 1964, AND 1965, THERE WERE 18, 14, 43, AND
1,192 SUCH CASES, RESPECTIVELY.  OF THE TOTAL REMOVED CRIMINAL CASES
FOR 1965, 1,079 WERE IN THE FIFTH CIRCUIT.  SEE ANNUAL REPORT OF THE
DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS 213
217 (1965). 

FN9  SECTION 1 OF THE CIVIL RIGHTS ACT OF 1866 PROVIDED IN RELEVANT
PART: 

"ALL  ...  CITIZENS OF THE UNITED STATES  ...  OF EVERY RACE AND
COLOR, WITHOUT REGARD TO ANY PREVIOUS CONDITION OF SLAVERY OR
INVOLUNTARY SERVITUDE  ...  SHALL HAVE THE SAME RIGHT  ...  TO MAKE AND
ENFORCE CONTRACTS, TO SUE, BE PARTIES, AND GIVE EVIDENCE, TO INHERIT,
PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL PROPERTY, AND
TO FULL AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE SECURITY
OF PERSON AND PROPERTY, AS IS ENJOYED BY WHITE CITIZENS, AND SHALL BE
SUBJECT TO LIKE PUNISHMENT, PAINS, AND PENALTIES, AND TO NONE OTHER,
ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CUSTOM, TO THE CONTRARY
NOTWITHSTANDING."  14 STAT. 27. 

FN10  THE RELEVANT PROVISIONS OF SEC 3 OF THE CIVIL RIGHTS ACT OF
1866, 14 STAT. 27, ARE INCLUDED IN THE APPENDIX TO THIS OPINION. 

FN11  THE RELEVANT PROVISIONS OF SEC 641 OF THE REVISED STATUTES OF
1874 ARE INCLUDED IN THE APPENDIX TO THIS OPINION. 

FN12  THE GUARANTEES OF SEC 1 OF THE CIVIL RIGHTS ACT OF 1866 WERE
CARRIED FORWARD AS SECS 1977 AND 1978 OF THE REVISED STATUTES, NOW 42
U.S.C. SECS 1981 AND 1982 (1964 ED.). 

FN13  SEE, E.G., SECOND CIVIL RIGHTS ACT, ACT OF MAY 31, 1870, 16
STAT. 140, AS AMENDED BY ACT OF FEBRUARY 28, 1871, 16 STAT. 433; THIRD
CIVIL RIGHTS ACT, ACT OF APRIL 20, 1871, 17 STAT.   13.  SECTION 1 OF
THE CIVIL RIGHTS ACT OF 1871, NOW 42 U.S.C. SEC 1983 (1964 ED.),
ESTABLISHED CIVIL REMEDIES FOR "THE DEPRIVATION OF ANY RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION OF THE UNITED
STATES."  WHEN IN 1874 THE REVISERS RELOCATED SEC 1 OF THE 1871 ACT AS
SEC 1979 OF THE REVISED STATUTES, THEY EXPANDED THE SECTION TO INCLUDE
THE DEPRIVATION OF RIGHTS, PRIVILEGES, AND IMMUNITIES SECURED BY THE
"CONSTITUTION AND LAWS" OF THE UNITED STATES, IN CONTRAST TO THEIR
REFERENCE MERELY TO "LAW" IN SEC 641 OF THE REVISED STATUTES, THE CIVIL
RIGHTS REMOVAL PROVISION.  AT LEAST IN SOME CIRCUMSTANCES, THEREFORE,
IT APPEARS THAT THE REVISED STATUTES MAY HAVE SPECIFICALLY
DISTINGUISHED BETWEEN "RIGHTS SECURED BY THE CONSTITUTION" AND "RIGHTS
SECURED BY ANY LAW PROVIDING FOR EQUAL CIVIL RIGHTS."  SEE ALSO REVISED
STATUTES SEC 629, SIXTEENTH (1874), WHICH DREW AN EXPLICIT DISTINCTION
BETWEEN RIGHTS SECURED BY THE CONSTITUTION AND RIGHTS SECURED BY THE
LAWS OF THE UNITED STATES.  THE MARGINAL NOTE TO THE LATTER SECTION
REFERS TO "RIGHTS SECURED BY THE CONSTITUTION AND LAWS" OF THE UNITED
STATES. 

FN14  SEE SLAUGHTER-HOUSE CASES, 16 WALL.  36, 83, 96-97 (DISSENTING
OPINION OF FIELD, J.). 

FN15  CONG. GLOBE, 39TH CONG., 1ST SESS., P. 474. 

FN16  IBID. 

FN17  SEE, E.G., ID., AT 476-477 (REMARKS OF SENATOR SAULSBURY); 505
506 (REMARKS OF SENATOR JOHNSON).    FN18  SEE, E.G., ID., AT 1121-1122
(REMARKS OF REPRESENTATIVE ROGERS); 1157 (REMARKS OF REPRESENTATIVE
THORNTON); 1271-1272 (REMARKS OF REPRESENTATIVE BINGHAM). 

FN19  SEE BICKEL, THE ORIGINAL UNDERSTANDING AND THE SEGREGATION
DECISION, 69 HARV. L. REV. 1, 11-29 (1955). 

FN20  SECTION 201(A) PROVIDES: 

"ALL PERSONS SHALL BE ENTITLED TO THE FULL AND EQUAL ENJOYMENT OF THE
GOODS, SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES, AND ACCOMMODATIONS
OF ANY PLACE OF PUBLIC ACCOMMODATION, AS DEFINED IN THIS SECTION,
WITHOUT DISCRIMINATION OR SEGREGATION ON THE GROUND OF RACE, COLOR,
RELIGION, OR NATIONNAL ORIGIN." 

FN21  SECTION 1446 OF TITLE 28 REQUIRES THAT A REMOVAL PETITION
CONTAIN "A SHORT AND PLAIN STATEMENT OF THE FACTS" THAT PURPORTEDLY
JUSTIFY REMOVAL.  THE INSTANT PETITION SATISFIES THAT REQUIREMENT. 
SINCE THE PETITION PREDATED THE ENACTMENT OF THE PUBLIC ACCOMMODATIONS
TITLE OF THE CIVIL RIGHTS ACT OF 1964, IT COULD NOT HAVE EXPLICITLY
ALLEGED COVERAGE UNDER THAT ACT.  IT RECITES FACTS, HOWEVER, THAT
INVOKE APPLICATION OF THAT ACT ON APPEAL.  SEE UNITED STATES V.
SCHOONER PEGGY, 1 CRANCH 103; HAMM V. CITY OF ROCK HILL, 379 U.S. 306;
LINKLETTER V. WALKER, 381 U.S. 618, 627. 

FN22  THE RELEVANT PROVISIONS OF SEC 5 OF THE HABEAS CORPUS
SUSPENSION ACT OF 1863, 12 STAT.  756, ARE INCLUDED IN THE APPENDIX TO
THIS OPINION.  SECTION 5 OF THE 1863 ACT WAS AMENDED IN CERTAIN
RESPECTS BY THE ACT OF MAY 11, 1866, 14 STAT. 46. 

FN23  THE "COLOR OF AUTHORITY" CLAUSE OF THE CIVIL RIGHTS ACT OF 1866
WAS LIMITED TO FEDERAL OFFICERS AND THOSE ASSISTING THEM.  SEE CITY OF
GREENWOOD V. PEACOCK, POST, PP. 814-824.  IN ADDITION, FEDERAL OFFICERS
MIGHT ALSO INVOKE THE "DENIED OR CANNOT ENFORCE" CLAUSE. 

FN24  IN VIEW OF THE LARGE NUMBERS OF FEDERAL OFFICERS AND AGENTS
POTENTIALLY INVOLVED IN ENFORCEMENT ACTIVITIES UNDER THE CIVIL RIGHTS
ACT OF 1866, SEE CITY OF GREENWOOD V. PEACOCK, POST, PP. 816-820,
PRETRIAL REMOVAL WOULD HAVE BEEN OF OBVIOUS UTILITY UNDER THE "COLOR OF
AUTHORITY" CLAUSE OF SEC 3 OF THE CIVIL RIGHTS ACT OF 1866.  CF.
TENNESSEE V. DAVIS, 100 U.S. 257, 261-262 (REMOVAL UNDER SEC 643 OF THE
REVISED STATUTES OF 1874); HODGSON V. MILLWARD, 12 FED. CAS. 285 (NO.
6568 (C.C.E.D. PA.))(REMOVAL UNDER SEC 5 OF THE HABEAS CORPUS
SUSPENSION ACT OF 1863, 12 STAT. 756), APPROVED IN BRAUN V. SAUERWEIN,
10 WALL.  218, 224.  NO SUCH OBVIOUS ROLE FOR PRE-TRIAL REMOVAL IS
EVIDENT UNDER THE "DENIED OR CANNOT ENFORCE" CLAUSE. 

THE OBSCURE LEGISLATIVE HISTORY OF SEC 3 OF THE CIVIL RIGHTS ACT OF
1866 INDICATES ONLY THAT THE RECONSTRUCTION CONGRESS DID NOT INTEND THE
LANGUAGE OF THE "DENIED OR CANNOT ENFORCE" CLAUSE OF SEC 3 TO BE READ
TO ITS FULLEST POSSIBLE EXTENT.  IN HIS VETO MESSAGE ACCOMPANYING THE
BILL PRESIDENT JOHNSON CONSTRUED THE CLAUSE SO BROADLY AS TO GIVE THE
FEDERAL COURTS JURISDICTION OVER ALL CASES AFFECTING A PERSON WHO WAS
DENIED ANY OF THE VARIOUS RIGHTS CONFERRED BY SEC 1, WHETHER OR NOT THE
RIGHT IN QUESTION WAS IN ISSUE IN THE PARTICULAR CASE.  FOR EXAMPLE, IN
THE PRESIDENT'S VIEW, A STATE COURT DEFENDANT UNDER INDICTMENT FOR
MURDER, WHO HAPPENED TO BE DENIED A CONTRACTUAL RIGHT UNDER SEC 1,
WOULD BE ABLE TO REMOVE HIS CASE FOR TRIAL IN THE FEDERAL COURT.  IN
URGING PASSAGE OF THE BILL OVER THE PRESIDENT'S VETO, SENATOR TRUMBULL,
THE FLOOR MANAGER OF THE BILL, REJECTED THE PRESIDENT'S CONSTRUCTION OF
THE "DENIED OR CANNOT ENFORCE" CLAUSE: 

"THE PRESIDENT OBJECTS TO THE THIRD SECTION OF THE BILL  ...  .  HE
INSISTS THAT IT GIVES JURISDICTION TO ALL CASES AFFECTING PERSONS
DISCRIMINATED AGAINST, AS PROVIDED IN THE FIRST AND SECOND SECTIONS OF
THE BILL; AND BY A STRAINED CONSTRUCTION THE PRESIDENT SEEKS TO DIVEST
STATE COURTS, NOT ONLY OF JURISDICTION OF THE PARTICULAR CASE WHERE A
PARTY IS DISCRIMINATED AGAINST, BUT OF ALL CASES AFFECTING HIM OR WHICH
MIGHT AFFECT HIM.  THIS IS NOT THE MEANING OF THE SECTION.  I HAVE
ALREADY SHOWN, IN COMMENTING ON THE SECOND SECTION OF THE BILL, THAT NO
PERSON IS LIABLE TO ITS PENALTIES EXCEPT THE ONE WHO DOES AN ACT WHICH
IS MADE PENAL; THAT IS, DEPRIVES ANOTHER OF SOME RIGHT THAT HE IS
ENTITLED TO, OR SUBJECTS HIM TO SOME PUNISHMENT THAT HE OUGHT NOT TO
BEAR. 

"SO IN REFERENCE TO THIS THIRD SECTION, THE JURISDICTION IS GIVEN TO
THE FEDERAL COURTS OF A CASE AFFECTING THE PERSON THAT IS DISCRIMINATED
AGAINST.  NOW, HE IS NOT NECESSARILY DISCRIMINATED AGAINST, BECAUSE
THERE MAY BE A CUSTOM IN THE COMMUNITY DISCRIMINATING AGAINST HIM, NOR
BECAUSE A LEGISLATURE MAY HAVE PASSED A STATUTE DISCRIMINATING AGAINST
HIM; THAT STATUTE IS OF NO VALIDITY IF IT COMES IN CONFLICT WITH A
STATUTE OF THE UNITED STATES; AND IT IS NOT TO BE PRESUMED THAT ANY
JUDGE OF A STATE COURT WOULD HOLD THAT A STATUTE OF A STATE
DISCRIMINATING AGAINST A PERSON ON ACCOUNT OF COLOR WAS VALID WHEN
THERE WAS A STATUTE OF THE UNITED STATES WITH WHICH IT WAS IN DIRECT
CONFLICT, AND THE CASE WOULD NOT THEREFORE RISE IN WHICH A PARTY WAS
DISCRIMINATED AGAINST UNTIL IT WAS TESTED, AND THEN IF THE
DISCRIMINATION WAS HELD VALID HE WOULD HAVE A RIGHT TO REMOVE IT TO A
FEDERAL COURT - OR, IF UNDERTAKING TO ENFORCE HIS RIGHT IN A STATE
COURT HE WAS DENIED THAT RIGHT, THEN HE COULD GO INTO THE FEDERAL
COURT; BUT IT BY NO MEANS FOLLOWS THAT EVERY PERSON WOULD HAVE A RIGHT
IN THE FIRST INSTANCE TO GO TO THE FEDERAL COURT BECAUSE THERE WAS ON
THE STATUTE-BOOK OF THE STATE A LAW DISCRIMINATING AGAINST HIM, THE
PRESUMPTION BEING THAT THE JUDGE OF THE COURT, WHEN HE CAME TO ACT UPON
THE CASE, WOULD, IN OBEDIENCE TO THE PARAMOUNT LAW OF THE UNITED
STATES, HOLD THE STATE STATUTE TO BE INVALID."  CONG.  GLOBE, 39TH
CONG., 1ST SESS., P. 1759. 

CF. BLYEW V. UNITED STATES, 13 WALL.  581.  IT IS CLEAR THAT SENATOR
TRUMBULL'S REFERENCE TO A PERSON "DISCRIMINATED AGAINST" WAS A
REFERENCE TO A PERSON WHO IS DENIED HIS RIGHTS UNDER THE BILL WITHIN
THE MEANING OF THE "DENIED OR CANNOT ENFORCE" CLAUSE OF SEC 3.  SEE
CONG.  GLOBE, 39TH CONG., 1ST SESS., P. 475. 

FN25  IN 1870, THIS COURT INVALIDATED UNDER THE SEVENTH AMENDMENT
POST-JUDGMENT REMOVAL WITH RESPECT TO CIVIL CASES TRIED BY A JURY.  THE
JUSTICES V. MURRAY, 9 WALL.  274.  SEE ALSO MCKEE V. RAINS, 10 WALL. 
22. 

FN26  SEE, E.G., SEC 14 OF THE AMENDATORY FREEDMEN'S BUREAU ACT OF
JULY 16, 1866, 14 STAT.  176, WHICH RE-ENACTED, IN VIRTUALLY IDENTICAL
TERMS FOR THE UNRECONSTRUCTED SOUTHERN STATES, THE RIGHTS GRANTED IN
SEC 1 OF THE CIVIL RIGHTS ACT OF 1866, AND PROVIDED FOR THE ENFORCEMENT
OF THOSE RIGHTS UNDER THE JURISDICTION OF MILITARY TRIBUNALS.  SEE ALSO
SEC 1 OF THE RECONSTRUCTION ACT OF MARCH 2, 1867, 14 STAT. 428, WHICH
DIVIDED THE REBEL STATES INTO FIVE MILITARY DISTRICTS AND PLACED THEM
UNDER MARTIAL LAW. 

FN27  IN 1874, A PETITION FOR REMOVAL COULD BE FILED IN THE STATE
COURT IN WHICH PROCEEDINGS WERE PENDING.  REV. STAT. SEC 641.  IF THE
STATE COURT DENIED REMOVAL, THAT DETERMINATION COULD BE PRESERVED FOR
REVIEW BY THIS COURT ON REVIEW OF THE FINAL JUDGMENT OF CONVICTION.  AN
ALTERNATIVE PROCEDURE WAS ALSO AVAILABLE.  A PETITION COULD BE FILED IN
THE FEDERAL TRIAL COURT TO WHICH THE STATE COURT HAD DENIED REMOVAL. 
SEE VIRGINIA V. RIVES, 100 U.S. 313; VIRGINIA V. PAUL, 148 U.S. 107,
116.  IN 1948, REMOVAL PROCEDURE WAS SIMPLIFIED.  THE PETITION IS NOW
FILED IN THE FIRST INSTANCE IN THE FEDERAL COURT.  AFTER NOTICE IS
GIVEN TO ALL ADVERSE PARTIES AND A COPY OF THE PETITION IS FILED WITH
THE STATE COURT, REMOVAL IS EFFECTED AND STATE COURT PROCEEDINGS CEASE
UNLESS THE CASE IS REMANDED.  28 U.S.C. SEC 1446 (1964 ED.).  SEE
GENERALLY, AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF
JURISDICTION BETWEEN STATE AND FEDERAL COURTS, TENTATIVE DRAFT NO. 4,
P. 153 ET SEQ.  (APRIL 25, 1966). 

FN28  GIBSON V. MISSISSIPPI, 162 U.S. 565; SMITH V. MISSISSIPPI, 162
U.S. 592; MURRAY V. LOUISIANA, 163 U.S. 101; WILLIAMS V. MISSISSIPPI,
170 U.S. 213.  SEE ALSO DUBUCLET V. LOUISIANA, 103 U.S. 550; SCHMIDT V.
COBB, 119 U.S. 286. 

FN29  SINCE KENTUCKY V. POWERS, 201 U.S. 1, THE FEDERAL COURTS HAVE
CONSISTENTLY APPLIED THE STRAUDER-RIVES DOCTRINE TO DENY REMOVAL IN A
VARIETY OF CIRCUMSTANCES.  SEE, E.G., KENTUCKY V. WENDLING, 182 F. 140
(C.C.W.D. KY.); WHITE V. KEOWN, 261 F. 814 (D.C.D. MASS.); OHIO V.
SWIFT & CO., 270 F. 141 (C.A. 6TH CIR.); NEW JERSEY V. WEINBERGER, 38
F.2D 298 (D.C.D.N.J.); SNYPP V. OHIO, 70 F.2D 535 (C.A. 6TH CIR.); HULL
V. JACKSON COUNTY CIRCUIT COURT, 138 F.2D 820 (C.A.  6TH CIR.); STEELE
V. SUPERIOR COURT, 164 F.2D 781 (C.A. 9TH CIR.); LAMSON V. SUPERIOR
COURT, 12 F. SUPP. 812 (D.C.N.D. CAL.); CALIFORNIA V. LAMSON, 12 F.
SUPP. 813 (D.C.N.D. CAL.); WASHINGTON V. AMERICAN SOCIETY OF COMPOSERS,
13 F. SUPP. 141 (D.C.W.D. WASH.); BENNETT V. ROBERTS, 31 F. SUPP. 825
(D.C.W.D.N.Y.); NORTH CAROLINA V. JACKSON, 135 F. SUPP. 682
(D.C.M.D.N.C.); TEXAS V. DORRIS, 165 F. SUPP. 738 (D.C.S.D. TEX.);
LOUISIANA V. MURPHY, 173 F. SUPP. 782 (D.C.W.D. LA.); MCDONALD V.
OREGON, 180 F. SUPP. 861 (D.C.D. ORE.); HILL V. PENNSYLVANIA, 183 F.
SUPP. 126 (D.C.W.D. PA.); RAND V. ARKANSAS, 191 F. SUPP. 20 (D.C.W.D.
ARK.); PETITION OF HAGEWOOD, 200 F. SUPP. 140 (D.C.E.D. MICH.); VAN
NEWKIRK V. DISTRICT ATTORNEY, 213 F. SUPP. 61 (D.C.E.D.N.Y.); CITY OF
BIRMINGHAM V. CROSKEY, 217 F. SUPP. 947 (D.C.N.D. ALA.); ARKANSAS V.
HOWARD, 218 F. SUPP. 626 (D.C.E.D. ARK.); ALABAMA V. ROBINSON, 220 F.
SUPP. 293 (D.C.N.D. ALA.); LEVITT & SONS, INC. V. PRINCE GEORGE COUNTY
CONGRESS OF RACIAL EQUALITY, 221 F. SUPP. 541 (D.C.D. MD.); OLSEN V.
DOERFLER, 225 F. SUPP. 540 (D.C.E.D. MICH.). 

FN30 AS POINTED OUT IN THE SEPARATE OPINION OF JUDGE BELL IN THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT, 342 F.2D 336, 343, 345, THE
SUPREME COURT OF GEORGIA HAS IN AT LEAST ONE CASE APPLIED THE DOCTRINE
OF HAMM V. CITY OF ROCK HILL TO SET ASIDE CONVICTIONS UNDER THE STATE
TRESPASS STATUTE.  BOLTON V. GEORGIA, 220 GA. 632, 140 S.E.2D 886. 

FN31  IN ADDITION TO THEIR RACIAL ALLEGATION, THE DEFENDANTS MUST
ALSO SHOW THAT THE RESTAURANT FACILITIES IN QUESTION WERE
ESTABLISHMENTS COVERED BY THE CIVIL RIGHTS ACT OF 1964. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BRENNAN
AND MR. JUSTICE FORTAS JOIN CONCURRING. 

AS I INDICATE IN MY OPINION IN THE PEACOCK CASES, POST, P. 842, EQUAL
CIVIL RIGHTS OF A CITIZEN OF THE UNITED STATES ARE "DENIED" WITHIN THE
MEANING OF 28 U.S.C. SEC 1443(1) (1964 ED.)  WHEN HE IS PROSECUTED FOR
ASSERTING THEM.  SECTION 201 OF THE CIVIL RIGHTS ACT OF 1964 (78 STAT.
243, 42 U.S.C. SEC 2000A (1964 ED.))  GAVE THESE DEFENDANTS A RIGHT TO
EQUAL SERVICE IN PLACES OF PUBLIC ACCOMMODATION.  SECTION 203 (78 STAT.
244, 42 U.S.C. SEC 2000A-2 (1964 ED.))  GAVE THEM A RIGHT AGAINST
INTIMIDATION, COERCION, OR PUNISHMENT FOR EXERCISING THOSE RIGHTS.  AND
WE HELD IN HAMM V. CITY OF ROCK HILL, 379 U.S. 306, THAT SECS 201 AND
203 PRECLUDED STATE CRIMINAL TRESPASS CONVICTIONS OF SIT-IN
DEMONSTRATORS EVEN THOUGH THE SIT-INS OCCURRED AND THEIR PROSECUTION
HAD BEEN INSTITUTED PRIOR TO THE EFFECTIVE DATE OF THE 1964 ACT. 

CONGRESS, IN OTHER WORDS, GAVE THESE DEFENDANTS THE RIGHT TO ENTER
THE RESTAURANTS IN QUESTION, TO SIT THERE, AND TO BE SERVED - A RIGHT
THAT WAS CONSTRUED BY THIS COURT TO INCLUDE IMMUNITY FROM PROSECUTION
AFTER THE EFFECTIVE DATE OF THE ACT FOR ACTS DONE PRIOR THERETO. 

IT IS THE RIGHT TO EQUAL SERVICE IN RESTAURANTS AND THE RIGHT TO BE
FREE OF PROSECUTION FOR ASSERTING THAT RIGHT - NOT THE RIGHT TO HAVE A
TRESPASS CONVICTION REVERSED - THAT THE PRESENT PROSECUTIONS THREATEN. 
IT IS THIS RIGHT WHICH MUST BE VINDICATED BY COMPLETE INSULATION FROM
THE STATE'S CRIMINAL PROCESS IF IT IS TO BE WHOLLY VINDICATED.  IT IS
THIS RIGHT WHICH THE DEFENDANTS ARE "DENIED" SO LONG AS THE PRESENT
PROSECUTIONS PERSIST. 

GEORGIA CLAIMS THAT HAMM V. CITY OF ROCK HILL, SUPRA, DOES NOT COVER
CASES OF SIT-INS PROSECUTED FOR DISORDERLY CONDUCT OR OTHER UNLAWFUL
ACTS.  OF COURSE THAT IS TRUE.  BUT ONE OF THE FUNCTIONS OF THE HEARING
ON THE ALLEGATIONS OF THE REMOVAL PETITION WILL BE TO DETERMINE WHETHER
THE DEFENDANTS WERE EJECTED ON RACIAL GROUNDS OR FOR SOME OTHER, VALID,
REASON.  THE COURT OF APPEALS CORRECTLY RULED THAT "IN THE EVENT IT IS
ESTABLISHED THAT THE REMOVAL OF THE APPELLANTS FROM THE VARIOUS PLACES
OF PUBLIC ACCOMMODATION WAS DONE FOR RACIAL REASONS, THEN UNDER
AUTHORITY OF THE HAMM CASE IT WOULD BECOME THE DUTY OF THE DISTRICT
COURT TO ORDER A DISMISSAL OF THE PROSECUTIONS WITHOUT FURTHER
PROCEEDINGS."  342 F.2D 336, 343. 

IF SERVICE WAS DENIED FOR OTHER REASONS, NO CASE FOR REMOVAL HAS BEEN
MADE OUT.  AND IF, AS IS INTIMATED, ANY DOUBT REMAINS AS TO WHETHER THE
RESTAURANTS IN QUESTION WERE COVERED BY THE 1964 ACT, THAT TOO SHOULD
BE LEFT OPEN IN THE HEARING TO BE HELD BEFORE THE DISTRICT COURT - A
PROCEDURE TO WHICH THE DEFENDANTS DO NOT OBJECT. 
..END :








GREENWOOD V. PEACOCK 384 U.S. 808 


NO. 471.  ARGUED APRIL 26, 1966.  - DECIDED JUNE 20, 1966* - 347 F.2D
679, 986, REVERSED. 

*TOGETHER WITH NO. 649, PEACOCK ET AL. V. CITY OF GREENWOOD, ALSO ON
CERTIORARI TO THE SAME COURT. 


VARIOUS STATE CRIMINAL CHARGES WERE BROUGHT AGAINST THE INDIVIDUAL
PETITIONERS, MEMBERS OF GROUPS ENGAGING IN CIVIL RIGHTS ACTIVITIES IN
MISSISSIPPI IN 1964, AND THEY FILED PETITIONS TO REMOVE THEIR CASES TO
THE FEDERAL DISTRICT COURT ALLEGING UNDER 28 U.S.C.  SEC 1443(1) THAT
THEY WERE DENIED OR COULD NOT ENFORCE IN THE STATE COURTS RIGHTS UNDER
LAWS PROVIDING FOR THE EQUAL CIVIL RIGHTS OF CITIZENS, AND UNDER 28
U.S.C. SEC 1443(2) THAT THEY WERE BEING PROSECUTED FOR ACTS DONE UNDER
COLOR OF THE AUTHORITY OF THE CONSTITUTION AND LAWS OF THE UNITED
STATES.  THE SEC 1443(1) REMOVAL CLAIMS WERE FUNDAMENTALLY BASED ON
ALLEGATIONS (1) THAT THE INDIVIDUAL PETITIONERS WERE ARRESTED BECAUSE
THEY WERE NEGROES OR WERE HELPING NEGROES ASSERT THEIR RIGHTS AND THAT
THEY WERE INNOCENT OF THE CHARGES AGAINST THEM, OR (2) THAT THEY WOULD
BE UNABLE TO OBTAIN FAIR STATE TRIALS.  THE SEC 1443(2) REMOVAL CLAIMS
WERE BASED ON THE CONTENTION THAT THE VARIOUS FEDERAL CONSTITUTIONAL
AND STATUTORY PROVISIONS (INCLUDING 42 U.S.C. SECS 1971 AND 1981)
INVOKED IN THE REMOVAL PETITIONS CONFERRED "COLOR OF AUTHORITY" ON THE
INDIVIDUAL PETITIONERS TO COMMIT THE ACTS FOR WHICH THEY ARE BEING
PROSECUTED.  THE DISTRICT COURT ON MOTION REMANDED THE CASES TO THE
CITY POLICE COURT FOR TRIAL.  THE COURT OF APPEALS REVERSED, HOLDING
THAT A VALID REMOVAL CLAIM UNDER SEC 1443(1) HAD BEEN STATED BY
ALLEGATIONS THAT A STATE STATUTE HAD BEEN APPLIED BEFORE TRIAL SO AS TO
DEPRIVE AN ACCUSED OF HIS EQUAL CIVIL RIGHTS WHERE THE ARREST AND
CHARGE THEREUNDER WERE EFFECTED FOR REASONS OF RACIAL DISCRIMINATION,
AND REMANDED THE CASES TO THE DISTRICT COURT FOR A HEARING ON THE TRUTH
OF THE ALLEGATIONS.  THE COURT REJECTED THE SEC 1443(2) CONTENTIONS,
HOLDING THAT PROVISION AVAILABLE ONLY TO THOSE WHO HAVE ACTED IN AN
OFFICIAL OR QUASI-OFFICIAL CAPACITY UNDER FEDERAL LAW.  HELD: 

1.  THE INDIVIDUAL PETITIONERS HAD NO REMOVAL RIGHT UNDER 28 U.S.C.
SEC 1443(2) SINCE, AS THE LEGISLATIVE HISTORY OF THAT PROVISION MAKES
CLEAR, THAT PROVISION APPLIES ONLY IN THE CASE OF FEDERAL OFFICERS AND
PERSONS ASSISTING SUCH OFFICERS IN PERFORMING THEIR DUTIES UNDER A
FEDERAL LAW PROVIDING FOR EQUAL CIVIL RIGHTS.  PP. 814-824. 

2.  SECTION 1443(1) PERMITS REMOVAL ONLY IN THE RARE SITUATION WHERE
IT CAN BE CLEARLY PREDICTED BY REASON OF THE OPERATION OF A PERVASIVE
AND EXPLICIT LAW THAT FEDERAL RIGHTS WILL INEVITABLY BE DENIED BY THE
VERY ACT OF BRINGING THE DEFENDANT TO TRIAL IN THE STATE COURT.  SUCH
NOT BEING THE CASE HERE, THE INDIVIDUAL PETITIONERS ARE NOT ENTITLED TO
REMOVAL UNDER SEC 1443(1).  PP. 824-828. 

(A)  SOME OF THE RIGHTS INVOKED BY THE REMOVAL PETITIONS, SUCH AS
THOSE OF FREE EXPRESSION UNDER THE FIRST AMENDMENT, CLEARLY CANNOT MEET
THE STATUTORY DEFINITION OF "EQUAL CIVIL RIGHTS."  P. 825. 

(B) NEITHER THE TWO FEDERAL LAWS SPECIFICALLY REFERRED TO IN THE
REMOVAL PETITIONS (42 U.S.C. SECS 1971, 1981), NOR ANY OTHERS CONFER AN
ABSOLUTE RIGHT ON PRIVATE CITIZENS TO COMMIT THE ACTS INVOLVED IN THE
CHARGES AGAINST THE INDIVIDUAL PETITIONERS OR GRANT IMMUNITY FROM STATE
PROSECUTION ON SUCH CHARGES.  GEORGIA V. RACHEL, ANTE, P. 780,
DISTINGUISHED.  PP. 826-827. 

(C)  REMOVAL UNDER SEC 1443(1) CANNOT BE SUPPORTED MERELY BY SHOWING
THAT THERE HAS BEEN AN ILLEGAL DENIAL OF CIVIL RIGHTS BY STATE
OFFICIALS IN ADVANCE OF TRIAL, THAT THE CHARGES AGAINST THE DEFENDANT
ARE FALSE, OR THAT THE DEFENDANT CANNOT OBTAIN A FAIR TRIAL IN A
PARTICULAR STATE COURT.  PP. 827-828. 

3.  SECTION 1443(1) DOES NOT WORK A WHOLESALE DISLOCATION OF THE
HISTORIC RELATIONSHIP BETWEEN THE STATE AND FEDERAL COURTS IN THE
ADMINISTRATION OF THE CRIMINAL LAW, AS THE LINE OF DECISIONS FROM
STRAUDER V. WEST VIRGINIA, 100 U.S. 303, TO KENTUCKY V. POWERS, 201
U.S. 1, MAKES CLEAR.  IF CHANGES ARE TO BE MADE IN THE LONG-SETTLED
INTERPRETATION OF SEC 1443(1), IT IS FOR CONGRESS, NOT THIS COURT, TO
MAKE THEM.  PP. 832-835. 

CITY OF GREENWOOD V. PEACOCK ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THESE CONSOLIDATED CASES, SEQUELS TO GEORGIA V. RACHEL, ANTE, P. 780,
INVOLVE PROSECUTIONS ON VARIOUS STATE CRIMINAL CHARGES AGAINST 29
PEOPLE WHO WERE ALLEGEDLY ENGAGED IN THE SPRING AND SUMMER OF 1964 IN
CIVIL RIGHTS ACTIVITY IN LEFLORE COUNTY, MISSISSIPPI.  IN THE FIRST
CASE, 14 INDIVIDUALS WERE CHARGED WITH OBSTRUCTING THE PUBLIC STREETS
OF THE CITY OF GREENWOOD IN VIOLATION OF MISSISSIPPI LAW.  (FN1)  THEY
FILED PETITIONS TO REMOVE THEIR CASES TO THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI UNDER 28 U.S.C. SEC 1443
(1964 ED.).  FN2)  ALLEGING THAT THEY WERE MEMBERS OF A CIVIL RIGHTS
GROUP ENGAGED IN A DRIVE TO ENCOURAGE NEGRO VOTER REGISTRATION IN
LEFLORE COUNTY, THEIR PETITIONS STATED THAT THEY WERE DENIED OR COULD
NOT ENFORCE IN THE COURTS OF THE STATE RIGHTS UNDER LAWS PROVIDING FOR
THE EQUAL CIVIL RIGHTS OF CITIZENS OF THE UNITED STATES, AND THAT THEY
WERE BEING PROSECUTED FOR ACTS DONE UNDER COLOR OF AUTHORITY OF THE
CONSTITUTION OF THE UNITED STATES AND 42 U.S.C. SEC 1971 ET SEQ. (1964
ED.).  (FN3)  ADDITIONALLY, THEIR REMOVAL PETITIONS ALLEGED THAT THE
STATUTE UNDER WHICH THEY WERE CHARGED WAS UNCONSTITUTIONALLY VAGUE ON
ITS FACE, THAT IT WAS UNCONSTITUTIONALLY APPLIED TO THEIR CONDUCT, AND
THAT ITS APPLICATION WAS A PART OF A POLICY OF RACIAL DISCRIMINATION
FOSTERED BY THE STATE OF MISSISSIPPI AND THE CITY OF GREENWOOD.  THE
DISTRICT COURT SUSTAINED THE MOTION OF THE CITY OF GREENWOOD TO REMAND
THE CASES TO THE CITY POLICE COURT FOR TRIAL.  THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT REVERSED, HOLDING THAT "A GOOD CLAIM FOR REMOVAL
UNDER SEC 1443(1) IS STATED BY ALLEGATIONS THAT A STATE STATUTE HAS
BEEN APPLIED PRIOR TO TRIAL SO AS TO DEPRIVE AN ACCUSED OF HIS EQUAL
CIVIL RIGHTS IN THAT THE ARREST AND CHARGE UNDER THE STATUTE WERE
EFFECTED FOR REASONS OF RACIAL DISCRIMINATION."  PEACOCK V. CITY OF
GREENWOOD, 347 F.2D 679, 684.  ACCORDINGLY, THE CASES WERE REMANDED TO
THE DISTRICT COURT FOR A HEARING ON THE TRUTH OF THE DEFENDANTS'
ALLEGATIONS.  AT THE SAME TIME, THE COURT OF APPEALS REJECTED THE
DEFENDANTS' CONTENTIONS UNDER 28 U.S.C. SEC 1443(2), HOLDING THAT
REMOVAL UNDER THAT SUBSECTION IS AVAILABLE ONLY TO THOSE WHO HAVE ACTED
IN AN OFFICIAL OR QUASI-OFFICIAL CAPACITY UNDER A FEDERAL LAW AND WHO
CAN THEREFORE BE SAID TO HAVE ACTED UNDER "COLOR OF AUTHORITY" OF THE
LAW WITHIN THE MEANING OF THAT PROVISION.  (FN4) 

IN THE SECOND CASE, 15 PEOPLE ALLEGEDLY AFFILIATED WITH A CIVIL
RIGHTS GROUP WERE ARRESTED AT DIFFERENT TIMES IN JULY AND AUGUST OF
1964 AND CHARGED WITH VARIOUS OFFENSES AGAINST THE LAWS OF MISSISSIPPI
OR ORDINANCES OF THE CITY OF GREENWOOD.  (FN5)  THESE DEFENDANTS FILED
ESSENTIALLY IDENTICAL PETITIONS FOR REMOVAL IN THE DISTRICT COURT,
DENYING THAT THEY HAD ENGAGED IN ANY CONDUCT PROHIBITED BY VALID LAWS
AND STATING THAT THEIR ARRESTS AND PROSECUTIONS WERE FOR THE "SOLE
PURPOSE AND EFFECT OF HARASSING PETITIONERS AND OF PUNISHING THEM FOR
AND DETERRING THEM FROM THE EXERCISE OF THEIR CONSTITUTIONALLY
PROTECTED RIGHT TO PROTEST THE CONDITIONS OF RACIAL DISCRIMINATION AND
SEGREGATION" IN MISSISSIPPI.  AS GROUNDS FOR REMOVAL, THE DEFENDANTS
SPECIFICALLY INVOKED 28 U.S.C. SECS 1443(1)  (FN6) AND 1443(2).  (FN7)
THE DISTRICT COURT HELD THAT THE CASES HAD BEEN IMPROPERLY REMOVED AND
REMANDED THEM TO THE POLICE COURT OF THE CITY OF GREENWOOD.  IN A PER
CURIAM OPINION FINDING THE ISSUES "IDENTICAL WITH" THOSE DETERMINED IN
THE PEACOCK CASE, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED
AND REMANDED THE CASES TO THE DISTRICT COURT FOR A HEARING ON THE TRUTH
OF THE DEFENDANTS' ALLEGATIONS UNDER SEC 1443(1).  WEATHERS V. CITY OF
GREENWOOD, 347 F.2D 986. 

WE GRANTED CERTIORARI TO CONSIDER THE IMPORTANT QUESTIONS RAISED BY
THE PARTIES CONCERNING THE SCOPE OF THE CIVIL RIGHTS REMOVAL STATUTE. 
382 U.S. 971.  (FN8)  AS IN GEORGIA V. RACHEL, ANTE, P. 780, WE DEAL
HERE NOT WITH QUESTIONS OF CONGRESSIONAL POWER, BUT WITH ISSUES OF
STATUTORY CONSTRUCTION. 

                                        I. 

THE INDIVIDUAL PETITIONERS CONTEND THAT, QUITE APART FROM 28 U.S.C.
SEC 1443(1), THEY ARE ENTITLED TO REMOVE THEIR CASES TO THE DISTRICT
COURT UNDER 28 U.S.C. SEC 1443(2), WHICH AUTHORIZES THE REMOVAL OF A
CIVIL ACTION OR CRIMINAL PROSECUTION FOR "ANY ACT UNDER COLOR OF
AUTHORITY DERIVED FROM ANY LAW PROVIDING FOR EQUAL RIGHTS  ...  ."  THE
CORE OF THEIR CONTENTION IS THAT THE VARIOUS FEDERAL CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOKED IN THEIR REMOVAL PETITIONS CONFERRED
"COLOR OF AUTHORITY" UPON THEM TO PERFORM THE ACTS FOR WHICH THEY ARE
BEING PROSECUTED BY THE STATE.  WE REJECT THIS ARGUMENT, BECAUSE WE
HAVE CONCLUDED THAT THE HISTORY OF SEC 1443(2) DEMONSTRATES
CONVINCINGLY THAT THIS SUBSECTION OF THE REMOVAL STATUTE IS AVAILABLE
ONLY TO FEDERAL OFFICERS AND TO PERSONS ASSISTING SUCH OFFICERS IN THE
PERFORMANCE OF THEIR OFFICIAL DUTIES.  (FN9) 

THE PROGENITOR OF SEC 1443(2) WAS SEC 3 OF THE CIVIL RIGHTS ACT OF
1866, 14 STAT. 27.  INSOFAR AS IT IS RELEVANT HERE, THAT SECTION
GRANTED REMOVAL OF ALL CRIMINAL PROSECUTIONS "COMMENCED IN ANY STATE
COURT  ...  AGAINST ANY OFFICER, CIVIL OR MILITARY, OR OTHER PERSON,
FOR ANY ARREST OR IMPRISONMENT, TRESPASSES, OR WRONGS DONE OR COMMITTED
BY VIRTUE OR UNDER COLOR OF AUTHORITY DERIVED FROM THIS ACT OR THE ACT
ESTABLISHING A BUREAU FOR THE RELIEF OF FREEDMEN AND REFUGEES, AND ALL
ACTS AMENDATORY THEREOF  ...  ." 

THE STATUTORY PHRASE "OFFICER  ...  OR OTHER PERSON" CHARACTERIZING
THE REMOVAL DEFENDANTS IN SEC 3 OF THE 1866 ACT WAS CARRIED FORWARD
WITHOUT CHANGE THROUGH SUCCESSIVE REVISIONS OF THE REMOVAL STATUTE
UNTIL 1948, WHEN THE REVISERS, DISAVOWING ANY SUBSTANTIVE CHANGE,
ELIMINATED THE PHRASE ENTIRELY.  (FN10)  THE DEFINITION OF THE PERSONS
ENTITLED TO REMOVAL UNDER THE PRESENT FORM OF THE STATUTE IS THEREFORE
APPROPRIATELY TO BE READ IN THE LIGHT OF THE MORE EXPANSIVE LANGUAGE OF
THE STATUTE'S ANCESTOR.  SEE MADRUGA V. SUPERIOR COURT, 346 U.S. 556,
560, N. 12; FOURCO GLASS CO. V. TRANSMIRRA PRODUCTS CORP., 353 U.S.
222, 227-228. 

IN THE CONTEXT OF ITS ORIGINAL ENACTMENT AS PART OF SEC 3 OF THE CIVIL
RIGHTS ACT OF 1866, THE STATUTORY LANGUAGE "OFFICER  ...  OR OTHER
PERSON" POINTS SQUARELY TO THE CONCLUSION THAT THE PHRASE "OR OTHER
PERSON" MEANT PERSONS ACTING IN ASSOCIATION WITH THE CIVIL OR MILITARY
OFFICERS MENTIONED IN THE IMMEDIATELY PRECEDING WORDS OF THE STATUTE. 
THAT INTERPRETATION STEMS FROM THE OBVIOUS CONTRAST BETWEEN THE
"OFFICER  ...  OR OTHER PERSON" PHRASE AND THE NEXT PRECEDING PORTION
OF THE STATUTE, THE PREDECESSOR OF THE PRESENT SEC 1443(1), WHICH
GRANTED REMOVAL TO "ANY ... PERSON" WHO WAS DENIED OR COULD NOT ENFORCE
IN THE COURTS OF THE STATE HIS RIGHTS UNDER SEC 1 OF THE 1866 ACT.  THE
DICHOTOMY BETWEEN "OFFICER  ...  OR OTHER PERSON" AND "ANY  ...
PERSON" IN THESE CORRELATIVE REMOVAL PROVISIONS PERSISTED THROUGH
SUCCESSIVE STATUTORY REVISIONS UNTIL 1948, EVEN THOUGH, WERE WE TO
ACCEPT THE INDIVIDUAL PETITIONERS' CONTENTIONS, THE TWO PHRASES WOULD
IN FACT HAVE BEEN ALMOST ENTIRELY CO-EXTENSIVE. 

IT IS CLEAR THAT THE "OTHER PERSON" IN THE "OFFICER  ...  OR OTHER
PERSON" FORMULA OF SEC 3 OF THE CIVIL RIGHTS ACT OF 1866 WAS INTENDED
AS AN OBVIOUS REFERENCE TO CERTAIN CATEGORIES OF PERSONS DESCRIBED IN
THE ENFORCEMENT PROVISIONS, SECS 4-7, OF THE ACT.  14 STAT. 28-29. 
AGENTS OF THE FREEDMEN'S BUREAU,  (FN11) AMONG OTHERS, WITH THE DUTY OF
ENFORCING THE CIVIL RIGHTS ACT.  AS SUCH, THOSE OFFICERS AND AGENTS
WERE REQUIRED TO ARREST AND INSTITUTE PROCEEDINGS AGAINST PERSONS
CHARGED WITH VIOLATIONS OF THE ACT.  (FN12)  BY THE "COLOR OF
AUTHORITY" REMOVAL PROVISION OF SEC 3 OF THE CIVIL RIGHTS ACT, "AGENTS"
WHO DERIVED THEIR AUTHORITY FROM THE FREEDMEN'S BUREAU LEGISLATION
WOULD BE ENTITLED AS "OTHER PERSONS," IF NOT AS "OFFICERS," TO REMOVAL
OF STATE PROSECUTIONS AGAINST THEM BASED UPON THEIR ENFORCEMENT
ACTIVITIES UNDER BOTH THE FREEDMEN'S BUREAU LEGISLATION AND THE CIVIL
RIGHTS ACT.  (FN13)  SECTION 5 OF THE CIVIL RIGHTS ACT, NOW 42 U.S.C.
SEC 1989 (1964 ED.), SPECIFICALLY AUTHORIZED UNITED STATES
COMMISSIONERS TO APPOINT "ONE OR MORE SUITABLE PERSONS" TO EXECUTE
WARRANTS AND OTHER PROCESS ISSUED BY THE COMMISSIONERS.  (FN14)  THESE
"SUITABLE PERSONS" WERE, IN TURN, SPECIFICALLY AUTHORIZED "TO SUMMON
AND CALL TO THEIR AID THE BYSTANDERS OR POSSE COMITATUS OF THE PROPER
COUNTY."  (FN15) SECTION 6 OF THE ACT PROVIDED CRIMINAL PENALTIES FOR
ANY INDIVIDUAL WHO OBSTRUCTED "ANY OFFICER, OR OTHER PERSON CHARGED
WITH THE EXECUTION OF ANY WARRANT OR PROCESS ISSUED UNDER THE
PROVISIONS OF THIS ACT, OR ANY PERSON OR PERSONS LAWFULLY ASSISTING HIM
OR THEM," OR WHO RESCUED OR ATTEMPTED TO RESCUE PRISONERS "FROM THE
CUSTODY OF THE OFFICER, OTHER PERSON OR PERSONS, OR THOSE LAWFULLY
ASSISTING."  (FN16)  FINALLY, SEC 7 OF THE ACT, NOW 42 U.S.C. SEC 1991
(1964 ED.), AWARDED A FEE OF FIVE DOLLARS FOR EACH INDIVIDUAL ARRESTED
BY THE "PERSON OR PERSONS AUTHORIZED TO EXECUTE THE PROCESS" - I.E.,
THE "ONE OR MORE SUITABLE PERSONS" OF SEC 5.  THUS, THE ENFORCEMENT
PROVISIONS OF THE 1866 ACT WERE REPLETE WITH REFERENCES TO "OTHER
PERSONS" IN CONTEXTS OBVIOUSLY RELATING TO POSITIVE ENFORCEMENT
ACTIVITY UNDER THE ACT.  (FN17) 

THE DERIVATION OF THE STATUTORY PHRASE "FOR ANY ACT" IN SEC 1443(2)
CONFIRMS THE INTERPRETATION THAT REMOVAL UNDER THIS SUBSECTION IS
LIMITED TO FEDERAL OFFICERS AND THOSE ACTING UNDER THEM.  THE PHRASE
"FOR ANY ACT" WAS SUBSTITUTED IN 1948 FOR THE PHRASE "FOR ANY ARREST OR
IMPRISONMENT OR OTHER TRESPASSES OR WRONGS."  LIKE THE "OFFICER  ...
OR OTHER PERSON" PROVISION, THE LANGUAGE SPECIFYING THE ACTS ON WHICH
REMOVAL COULD BE GROUNDED HAD, WITH MINOR CHANGES, PERSISTED UNTIL 1948
IN THE CIVIL RIGHTS REMOVAL STATUTE SINCE ITS ORIGINAL INTRODUCTION IN
THE 1866 ACT.  THE LANGUAGE OF THE ORIGINAL CIVIL RIGHTS ACT - "ARREST
OR IMPRISONMENT, TRESPASSES, OR WRONGS" - IS PRE-EMINENTLY THE LANGUAGE
OF ENFORCEMENT.  THE WORDS THEMSELVES DENOTE THE VERY SORTS OF ACTIVITY
FOR WHICH FEDERAL OFFICERS, SEEKING TO ENFORCE THE BROAD GUARANTEES OF
THE 1866 ACT, WERE LIKELY TO BE PROSECUTED IN THE STATE COURTS.  AS THE
COURT OF APPEALS FOR THE SECOND CIRCUIT HAS PUT IT, "'ARREST OR
IMPRISONMENT, TRESPASSES, OR WRONGS,' WERE PRECISELY THE PROBABLE
CHARGES AGAINST ENFORCEMENT OFFICERS AND THOSE ASSISTING THEM; AND A
STATUTE SPEAKING OF SUCH ACTS 'DONE OR COMMITTED BY VIRTUE OF OR UNDER
COLOR OF AUTHORITY DERIVED FROM' SPECIFIED LAWS READS FAR MORE READILY
ON PERSONS ENGAGED IN SOME SORT OF ENFORCEMENT THAN ON THOSE WHOSE
RIGHTS WERE BEING ENFORCED  ...  ."  NEW YORK V. GALAMISON, 342 F.2D
255, 262. 

THE LANGUAGE OF THE "COLOR OF AUTHORITY" REMOVAL PROVISION OF SEC 3
OF THE CIVIL RIGHTS ACT OF 1866 WAS TAKEN DIRECTLY FROM THE HABEAS
CORPUS SUSPENSION ACT OF 1863, 12 STAT. 755, WHICH AUTHORIZED THE
PRESIDENT TO SUSPEND THE WRIT OF HABEAS CORPUS AND PRECLUDED CIVIL AND
CRIMINAL LIABILITY OF ANY PERSON MAKING A SEARCH, SEIZURE, ARREST, OR
IMPRISONMENT UNDER ANY ORDER OF THE PRESIDENT DURING THE REBELLION. 
(FN18)  SECTION 5 OF THE 1863 ACT PROVIDED FOR THE REMOVAL OF ALL SUITS
OR PROSECUTIONS "AGAINST ANY OFFICER, CIVIL OR MILITARY, OR AGAINST ANY
OTHER PERSON, FOR ANY ARREST OR IMPRISONMENT MADE, OR OTHER TRESPASSES
OR WRONGS DONE OR COMMITTED, OR ANY ACT OMITTED TO BE DONE, AT ANY TIME
DURING THE PRESENT REBELLION, BY VIRTUE OR UNDER COLOR OF ANY AUTHORITY
DERIVED FROM OR EXERCISED BY OR UNDER THE PRESIDENT OF THE UNITED
STATES, OR ANY ACT OF CONGRESS."  12 STAT. 756.  SEE THE MAYOR V.
COOPER, 6 WALL.  247; PHILLIPS V. GAINES, 131 U.S. APP. CLXIX.  SINCE
THE 1863 ACT GRANTED NO RIGHTS TO PRIVATE INDIVIDUALS, ITS REMOVAL
PROVISION WAS CONCERNED SOLELY WITH THE PROTECTION OF FEDERAL OFFICERS
AND PERSONS ACTING UNDER THEM IN THE PERFORMANCE OF THEIR OFFICIAL
DUTIES.  (FN19)  THUS, AT THE SAME TIME THAT CONGRESS EXPANDED THE
AVAILABILITY OF REMOVAL BY ENACTING THE "DENIED OR CANNOT ENFORCE"
CLAUSE IN SEC 3 OF THE CIVIL RIGHTS ACT OF 1866, IT REPEATED ALMOST
VERBATIM IN THE "COLOR OF AUTHORITY" CLAUSE THE LANGUAGE OF THE 1863
ACT  (FN20) - LANGUAGE THAT WAS CLEARLY LIMITED TO ENFORCEMENT ACTIVITY
BY FEDERAL OFFICERS AND THOSE ACTING UNDER THEM.  (FN21) 

FOR THESE REASONS, WE HOLD THAT THE SECOND SUBSECTION OF SEC 1443
CONFERS A PRIVILEGE OF REMOVAL ONLY UPON FEDERAL OFFICERS OR AGENTS AND
THOSE AUTHORIZED TO ACT WITH OR FOR THEM IN AFFIRMATIVELY EXECUTING
DUTIES UNDER ANY FEDERAL LAW PROVIDING FOR EQUAL CIVIL RIGHTS.  (FN22)
ACCORDINGLY, THE INDIVIDUAL PETITIONERS IN THE CASE BEFORE US HAD NO
RIGHT OF REMOVAL TO THE FEDERAL COURT UNDER 28 U.S.C. SEC 1443(2). 

                                       II. 

WE COME, THEN, TO THE ISSUES WHICH THIS CASE RAISES AS TO THE SCOPE
OF 28 U.S.C. SEC 1443(1).  IN GEORGIA V. RACHEL, DECIDED TODAY, WE HAVE
HELD THAT REMOVAL OF A STATE COURT TRESPASS PROSECUTION CAN BE HAD
UNDER SEC 1443(1) UPON A PETITION ALLEGING THAT THE PROSECUTION STEMS
EXCLUSIVELY FROM THE PETITIONERS' PEACEFUL EXERCISE OF THEIR RIGHT TO
EQUAL ACCOMMODATION IN ESTABLISHMENTS COVERED BY THE CIVIL RIGHTS ACT
OF 1964, SEC 201, 78 STAT.  243, 42 U.S.C. SEC 2000A (1964 ED.).  SINCE
THAT ACT ITSELF, AS CONSTRUED BY THIS COURT IN HAMM V. CITY OF ROCK
HILL, 379 U.S. 306, 310, SPECIFICALLY AND UNIQUELY GUARANTEES THAT THE
CONDUCT ALLEGED IN THE REMOVAL PETITION IN RACHEL MAY "NOT BE THE
SUBJECT OF TRESPASS PROSECUTIONS," THE DEFENDANTS INEVITABLY ARE
"DENIED OR CANNOT ENFORCE IN THE COURTS OF THE STATE A RIGHT UNDER ANY
LAW PROVIDING FOR  ...  EQUAL CIVIL RIGHTS," BY MERELY BEING BROUGHT
BEFORE A STATE COURT TO DEFEND SUCH A PROSECUTION.  THE PRESENT CASE,
HOWEVER, IS FAR DIFFERENT. 

IN THE FIRST PLACE, THE FEDERAL RIGHTS INVOKED BY THE INDIVIDUAL
PETITIONERS INCLUDE SOME THAT CLEARLY CANNOT QUALIFY UNDER THE
STATUTORY DEFINITION AS RIGHTS UNDER LAWS PROVIDING FOR "EQUAL CIVIL
RIGHTS."  THE FIRST AMENDMENT RIGHTS OF FREE EXPRESSION, FOR EXAMPLE,
SO HEAVILY RELIED UPON IN THE REMOVAL PETITIONS, ARE NOT RIGHTS ARISING
UNDER A LAW PROVIDING FOR "EQUAL CIVIL RIGHTS" WITHIN THE MEANING OF
SEC 1443(1).  THE FIRST AMENDMENT IS A GREAT CHARTER OF AMERICAN
FREEDOM, AND THE PRECIOUS RIGHTS OF PERSONAL LIBERTY IT PROTECTS ARE
UNDOUBTEDLY COMPREHENDED IN THE CONCEPT OF "CIVIL RIGHTS."  CF. HAGUE
V. C.I.O., 307 U.S. 496, 531-532 (SEPARATE OPINION OF STONE, J.).  BUT
THE REFERENCE IN SEC 1443(1) IS TO "EQUAL CIVIL RIGHTS."  THAT PHRASE,
AS OUR REVIEW IN RACHEL OF ITS LEGISLATIVE HISTORY MAKES CLEAR, DOES
NOT INCLUDE THE BROAD CONSTITUTIONAL GUARANTEES OF THE FIRST
AMENDMENT.  (FN23)  A PRECISE DEFINITION OF THE LIMITATIONS OF THE
PHRASE "ANY LAW PROVIDING FOR  ...  EQUAL CIVIL RIGHTS" IN SEC 1443(1)
IS NOT A MATTER WE NEED PURSUE TO A CONCLUSION, HOWEVER, BECAUSE WE MAY
PROCEED HERE ON THE PREMISE THAT AT LEAST THE TWO FEDERAL STATUTES
SPECIFICALLY REFERRED TO IN THE REMOVAL PETITIONS, 42 U.S.C. SEC 1971
AND 42 U.S.C. SEC 1981, DO QUALIFY UNDER THE STATUTORY DEFINITION. 
(FN24) 

THE FUNDAMENTAL CLAIM IN THIS CASE, THEN, IS THAT A CASE FOR REMOVAL
IS MADE UNDER SEC 1443(1) UPON A PETITION ALLEGING:  (1) THAT THE
DEFENDANTS WERE ARRESTED BY STATE OFFICERS AND CHARGED WITH VARIOUS
OFFENSES UNDER STATE LAW BECAUSE THEY WERE NEGROES OR BECAUSE THEY WERE
ENGAGED IN HELPING NEGROES ASSERT THEIR RIGHTS UNDER FEDERAL EQUAL
CIVIL RIGHTS LAWS, AND THAT THEY ARE COMPLETELY INNOCENT OF THE CHARGES
AGAINST THEM, OR (2) THAT THE DEFENDANTS WILL BE UNABLE TO OBTAIN A
FAIR TRIAL IN THE STATE COURT.  THE BASIC DIFFERENCE BETWEEN THIS CASE
AND RACHEL IS THUS IMMEDIATELY APPARENT.  IN RACHEL THE DEFENDANTS
RELIED ON THE SPECIFIC PROVISIONS OF A PRE-EMPTIVE FEDERAL CIVIL RIGHTS
LAW - SECS 201(A) AND 203(C) OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C.
SECS 2000AA) AND 2000A-2(C) (1964 ED.), AS CONSTRUED IN HAMM V. CITY OF
ROCK HILL, SUPRA - THAT, UNDER THE CONDITIONS ALLEGED, GAVE THEM:  (1)
THE FEDERAL STATUTORY RIGHT TO REMAIN ON THE PROPERTY OF A RESTAURANT
PROPRIETOR AFTER BEING ORDERED TO LEAVE, DESPITE A STATE LAW MAKING IT
A CRIMINAL OFFENSE NOT TO LEAVE, AND (2) THE FURTHER FEDERAL STATUTORY
RIGHT THAT NO STATE SHOULD EVEN ATTEMPT TO PROSECUTE THEM FOR THEIR
CONDUCT.  THE CIVIL RIGHTS ACT OF 1964 AS CONSTRUED IN HAMM THUS
SPECIFICALLY AND UNIQUELY CONFERRED UPON THE DEFENDANTS AN ABSOLUTE
RIGHT TO "VIOLATE" THE EXPLICIT TERMS OF THE STATE CRIMINAL TRESPASS
LAW WITH IMPUNITY UNDER THE CONDITIONS ALLEGED IN THE RACHEL REMOVAL
PETITION, AND ANY ATTEMPT BY THE STATE TO MAKE THEM ANSWER IN A COURT
FOR THIS CONCEDED "VIOLATION" WOULD DIRECTLY DENY THEIR FEDERAL RIGHT
"IN THE COURTS OF THE STATE."  THE PRESENT CASE DIFFERS FROM RACHEL IN
TWO SIGNIFICANT RESPECTS.  FIRST, NO FEDERAL LAW CONFERS AN ABSOLUTE
RIGHT ON PRIVATE CITIZENS - ON CIVIL RIGHTS ADVOCATES, ON NEGROES, OR
ON ANYBODY ELSE - TO OBSTRUCT A PUBLIC STREET, TO CONTRIBUTE TO THE
DELINQUENCY OF A MINOR, TO DRIVE AN AUTOMOBILE WITHOUT A LICENSE, OR TO
BITE A POLICEMAN.  SECOND, NO FEDERAL LAW CONFERS IMMUNITY FROM STATE
PROSECUTION ON SUCH CHARGES.  (FN25) 

TO SUSTAIN REMOVAL OF THESE PROSECUTIONS TO A FEDERAL COURT UPON THE
ALLEGATIONS OF THE PETITIONS IN THIS CASE WOULD THEREFORE MARK A
COMPLETE DEPARTURE FROM THE TERMS OF THE REMOVAL STATUTE, WHICH ALLOW
REMOVAL ONLY WHEN A PERSON IS "DENIED OR CANNOT ENFORCE" A SPECIFIED
FEDERAL RIGHT "IN THE COURTS OF THE STATE," AND A COMPLETE DEPARTURE AS
WELL FROM THE CONSISTENT LINE OF THIS COURT'S DECISIONS FROM STRAUDER
V. WEST VIRGINIA, 100 U.S. 303, TO KENTUCKY V. POWERS, 201 U.S. 1. 
(FN26) THOSE CASES ALL STAND FOR AT LEAST ONE BASIC PROPOSITION:  IT IS
NOT ENOUGH TO SUPPORT REMOVAL UNDER SEC 1443(1) TO ALLEGE OR SHOW THAT
THE DEFENDANT'S FEDERAL EQUAL CIVIL RIGHTS HAVE BEEN ILLEGALLY AND
CORRUPTLY DENIED BY STATE ADMINISTRATIVE OFFICIALS IN ADVANCE OF TRIAL,
THAT THE CHARGES AGAINST THE DEFENDANT ARE FALSE, OR THAT THE DEFENDANT
IS UNABLE TO OBTAIN A FAIR TRIAL IN A PARTICULAR STATE COURT.  THE
MOTIVES OF THE OFFICERS BRINGING THE CHARGES MAY BE CORRUPT, BUT THAT
DOES NOT SHOW THAT THE STATE TRIAL COURT WILL FIND THE DEFENDANT GUILTY
IF HE IS INNOCENT, OR THAT IN ANY OTHER MANNER THE DEFENDANT WILL BE
"DENIED OR CANNOT ENFORCE IN THE COURTS" OF THE STATE ANY RIGHT UNDER A
FEDERAL LAW PROVIDING FOR EQUAL CIVIL RIGHTS.  THE CIVIL RIGHTS REMOVAL
STATUTE DOES NOT REQUIRE AND DOES NOT PERMIT THE JUDGES OF THE FEDERAL
COURTS TO PUT THEIR BRETHREN OF THE STATE JUDICIARY ON TRIAL.  UNDER
SEC 1443(1), THE VINDICATION OF THE DEFENDANT'S FEDERAL RIGHTS IS LEFT
TO THE STATE COURTS EXCEPT IN THE RARE SITUATIONS WHERE IT CAN BE
CLEARLY PREDICTED BY REASON OF THE OPERATION OF A PERVASIVE AND
EXPLICIT STATE OR FEDERAL LAW THAT THOSE RIGHTS WILL INEVITABLY BE
DENIED BY THE VERY ACT OF BRINGING THE DEFENDANT TO TRIAL IN THE STATE
COURT.  GEORGIA V. RACHEL, ANTE; STRAUDER V. WEST VIRGINIA, 100 U.S.
303. 

WHAT WE HAVE SAID IS NOT FOR ONE MOMENT TO SUGGEST THAT THE
INDIVIDUAL PETITIONERS IN THIS CASE HAVE NOT ALLEGED A DENIAL OF RIGHTS
GUARANTEED TO THEM UNDER FEDERAL LAW.  IF, AS THEY ALLEGE, THEY ARE
BEING PROSECUTED ON BASELESS CHARGES SOLELY BECAUSE OF THEIR RACE, THEN
THERE HAS BEEN AN OUTRAGEOUS DENIAL OF THEIR FEDERAL RIGHTS, AND THE
FEDERAL COURTS ARE FAR FROM POWERLESS TO REDRESS THE WRONGS DONE TO
THEM.  THE MOST OBVIOUS REMEDY IS THE TRADITIONAL ONE EMPHASIZED IN THE
LINE OF CASES FROM VIRGINIA V. RIVES, 100 U.S. 313, TO KENTUCKY V.
POWERS, 201 U.S. 1 - VINDICATION OF THEIR FEDERAL CLAIMS ON DIRECT
REVIEW BY THIS COURT, IF THOSE CLAIMS HAVE NOT BEEN VINDICATED BY THE
TRIAL OR REVIEWING COURTS OF THE STATE.  THAT IS PRECISELY WHAT
HAPPENED IN TWO OF THE CASES IN THE RIVES-POWERS LINE OF DECISIONS,
WHERE REMOVAL UNDER THE PREDECESSOR OF SEC 1443(1) WAS HELD TO BE
UNAUTHORIZED, BUT WHERE THE STATE COURT CONVICTIONS WERE OVERTURNED
BECAUSE OF A DENIAL OF THE DEFENDANTS' FEDERAL RIGHTS AT THEIR TRIALS. 
(FN27)  THAT IS PRECISELY WHAT HAS HAPPENED IN COUNTLESS CASES THIS
COURT HAS REVIEWED OVER THE YEARS - CASES LIKE SHUTTLESWORTH V.
BIRMINGHAM, 382 U.S. 87, TO NAME ONE AT RANDOM DECIDED IN THE PRESENT
TERM.  "CASES WHERE NEGROES ARE PROSECUTED AND CONVICTED IN STATE
COURTS CAN FIND THEIR WAY EXPEDITIOUSLY TO THIS COURT, PROVIDED THEY
PRESENT CONSTITUTIONAL QUESTIONS."  ENGLAND V. MEDICAL EXAMINERS, 375
U.S. 411, 434 (DOUGLAS, J., CONCURRING). 

BUT THERE ARE MANY OTHER REMEDIES AVAILABLE IN THE FEDERAL COURTS TO
REDRESS THE WRONGS CLAIMED BY THE INDIVIDUAL PETITIONERS IN THE
EXTRAORDINARY CIRCUMSTANCES THEY ALLEGE IN THEIR REMOVAL PETITIONS.  IF
THE STATE PROSECUTION OR TRIAL ON THE CHARGE OF OBSTRUCTING A PUBLIC
STREET OR ON ANY OTHER CHARGE WOULD ITSELF CLEARLY DENY THEIR RIGHTS
PROTECTED BY THE FIRST AMENDMENT, THEY MAY UNDER SOME CIRCUMSTANCES
OBTAIN AN INJUNCTION IN THE FEDERAL COURT.  SEE DOMBROWSKI V. PFISTER,
380 U.S. 479.  IF THEY GO TO TRIAL AND THERE IS A COMPLETE ABSENCE OF
EVIDENCE AGAINST THEM, THEIR CONVICTIONS WILL BE SET ASIDE BECAUSE OF A
DENIAL OF DUE PROCESS OF LAW.  THOMPSON V. LOUISVILLE, 362 U.S. 199. 
IF AT THEIR TRIAL THEY ARE IN FACT DENIED ANY FEDERAL CONSTITUTIONAL
RIGHTS, AND THESE DENIALS GO UNCORRECTED BY OTHER COURTS OF THE STATE,
THE REMEDY OF FEDERAL HABEAS CORPUS IS FREELY AVAILABLE TO THEM.  FAY
V. NOIA, 372 U.S. 391.  IF THEIR FEDERAL CLAIMS AT TRIAL HAVE BEEN
DENIED THROUGH AN UNFAIR OR DEFICIENT FACT-FINDING PROCESS, THAT, TOO,
CAN BE CORRECTED BY A FEDERAL COURT.  TOWNSEND V. SAIN, 372 U.S. 293. 

OTHER SANCTIONS, CIVIL AND CRIMINAL, ARE AVAILABLE IN THE FEDERAL
COURTS AGAINST OFFICERS OF A STATE WHO VIOLATE THE PETITIONERS' FEDERAL
CONSTITUTIONAL AND STATUTORY RIGHTS.  UNDER 42 U.S.C. SEC 1983 (1964
ED.)  THE OFFICERS MAY BE MADE TO RESPOND IN DAMAGES NOT ONLY FOR
VIOLATIONS OF RIGHTS CONFERRED BY FEDERAL EQUAL CIVIL RIGHTS LAWS, BUT
FOR VIOLATIONS OF OTHER FEDERAL CONSTITUTIONAL AND STATUTORY RIGHTS AS
WELL.  (FN28)  MONROE V. PAPE, 365 U.S. 167.  AND ONLY THIS TERM WE
HAVE HELD THAT THE PROVISIONS OF 18 U.S.C. SEC 241 (1964 ED.), A
CRIMINAL LAW THAT IMPOSES PUNISHMENT OF UP TO 10 YEARS IN PRISON, MAY
BE INVOKED AGAINST THOSE WHO CONSPIRE TO DEPRIVE ANY CITIZEN OF THE
"FREE EXERCISE OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY
THE CONSTITUTION OR LAWS OF THE UNITED STATES" BY "CAUSING THE ARREST
OF NEGROES BY MEANS OF FALSE REPORTS THAT SUCH NEGROES HAD COMMITTED
CRIMINAL ACTS."  (FN29)  UNITED STATES V. GUEST, 383 U.S. 745, 756. 

BUT THE QUESTION BEFORE US NOW IS NOT WHETHER STATE OFFICIALS IN
MISSISSIPPI HAVE ENGAGED IN CONDUCT FOR WHICH THEY MAY BE CIVILLY OR
CRIMINALLY LIABLE UNDER FEDERAL LAW.  THE QUESTION, PRECISELY, IS
WHETHER THE INDIVIDUAL PETITIONERS ARE ENTITLED TO REMOVE THESE STATE
PROSECUTIONS TO A FEDERAL COURT UNDER THE PROVISIONS OF 28 U.S.C. SEC
1443(1).  UNLESS THE WORDS OF THIS REMOVAL STATUTE ARE TO BE
DISREGARDED AND THE PREVIOUS CONSISTENT DECISIONS OF THIS COURT
COMPLETELY REPUDIATED, THE ANSWER MUST CLEARLY BE THAT NO REMOVAL IS
AUTHORIZED IN THIS CASE.  IN THE RACHEL CASE, DECIDED TODAY, WE HAVE
TRACED THE COURSE OF THOSE DECISIONS AGAINST THE HISTORIC BACKGROUND OF
THE STATUTE THEY WERE CALLED UPON TO INTERPRET.  AND IN RACHEL WE HAVE
CONCLUDED THAT REMOVAL TO THE FEDERAL COURT IN THE NARROW CIRCUMSTANCES
THERE PRESENTED WOULD NOT BE A DEPARTURE FROM THE TEACHING OF THIS
COURT'S DECISIONS, BECAUSE THE CIVIL RIGHTS ACT OF 1964, IN THOSE
NARROW CIRCUMSTANCES, "SUBSTITUTES A RIGHT FOR A CRIME."  HAMM V. CITY
OF ROCK HILL, 379 U.S. 306, 315. 

WE NEED NOT AND DO NOT NECESSARILY APPROVE OR ADOPT ALL THE LANGUAGE
AND ALL THE REASONING OF EVERY ONE OF THIS COURT'S OPINIONS CONSTRUING
THIS REMOVAL STATUTE, FROM STRAUDER V. WEST VIRGINIA, 100 U.S. 303, TO
KENTUCKY V. POWERS, 201 U.S. 1.  BUT WE DECLINE TO REPUDIATE THOSE
DECISIONS, AND WE DECLINE TO DO SO NOT OUT OF A BLIND ADHERENCE TO THE
PRINCIPLE OF STARE DECISIS, BUT BECAUSE AFTER INDEPENDENT CONSIDERATION
WE HAVE DETERMINED, FOR THE REASONS EXPRESSED IN THIS OPINION AND IN
RACHEL, THAT THOSE DECISIONS WERE CORRECT IN THEIR BASIC CONCLUSION
THAT THE PROVISIONS OF SEC 1443(1) DO NOT OPERATE TO WORK A WHOLESALE
DISLOCATION OF THE HISTORIC RELATIONSHIP BETWEEN THE STATE AND THE
FEDERAL COURTS IN THE ADMINISTRATION OF THE CRIMINAL LAW. 

IT IS WORTH CONTEMPLATING WHAT THE RESULT WOULD BE IF THE STRAINED
INTERPRETATION OF SEC 1443(1) URGED BY THE INDIVIDUAL PETITIONERS WERE
TO PREVAIL.  IN THE FISCAL YEAR 1963 THERE WERE 14 CRIMINAL REMOVAL
CASES OF ALL KINDS IN THE ENTIRE NATION; IN FISCAL 1964 THERE WERE 43. 
THE PRESENT CASE WAS DECIDED BY THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT ON JUNE 22, 1965, JUST BEFORE THE END OF THE FISCAL YEAR.  IN
THAT YEAR, FISCAL 1965, THERE WERE 1,079 CRIMINAL REMOVAL CASES IN THE
FIFTH CIRCUIT ALONE.  (FN30)  BUT THIS PHENOMENAL INCREASE IS NO MORE
THAN A DROP IN THE BUCKET OF WHAT COULD REASONABLY BE EXPECTED IN THE
FUTURE.  FOR IF THE INDIVIDUAL PETITIONERS SHOULD PREVAIL IN THEIR
INTERPRETATION OF SEC 1443(1), THEN EVERY CRIMINAL CASE IN EVERY COURT
OF EVERY STATE - ON ANY CHARGE FROM A FIVE-DOLLAR MISDEMEANOR TO FIRST
DEGREE MURDER - WOULD BE REMOVABLE TO A FEDERAL COURT UPON A PETITION
ALLEGING (1) THAT THE DEFENDANT WAS BEING PROSECUTED BECAUSE OF HIS
RACE  (FN31) AND THAT HE WAS COMPLETELY INNOCENT OF THE CHARGE BROUGHT
AGAINST HIM, OR (2) THAT HE WOULD BE UNABLE TO OBTAIN A FAIR TRIAL IN
THE STATE COURT.  ON MOTION TO REMAND, THE FEDERAL COURT WOULD BE
REQUIRED IN EVERY CASE TO HOLD A HEARING, WHICH WOULD AMOUNT TO AT
LEAST A PRELIMINARY TRIAL OF THE MOTIVATIONS OF THE STATE OFFICERS WHO
ARRESTED AND CHARGED THE DEFENDANT, OF THE QUALITY OF THE STATE COURT
OR JUDGE BEFORE WHOM THE CHARGES WERE FILED, AND OF THE DEFENDANT'S
INNOCENCE OR GUILT.  AND THE FEDERAL COURT MIGHT, OF COURSE, BE LOCATED
HUNDREDS OF MILES AWAY FROM THE PLACE WHERE THE CHARGE WAS BROUGHT. 
THIS HEARING COULD BE FOLLOWED EITHER BY A FULL TRIAL IN THE FEDERAL
COURT, OR BY A REMAND ORDER.  EVERY REMAND ORDER WOULD BE APPEALABLE AS
OF RIGHT TO A UNITED STATES COURT OF APPEALS AND, IF AFFIRMED THERE,
WOULD THEN BE REVIEWABLE BY PETITION FOR A WRIT OF CERTIORARI IN THIS
COURT.  IF THE REMAND ORDER WERE EVENTUALLY AFFIRMED, THERE MIGHT, IF
THE WITNESSES WERE STILL AVAILABLE, FINALLY BE A TRIAL IN THE STATE
COURT, MONTHS OR YEARS AFTER THE ORIGINAL CHARGE WAS BROUGHT.  IF THE
REMAND ORDER WERE EVENTUALLY REVERSED, THERE MIGHT FINALLY BE A TRIAL
IN THE FEDERAL COURT, ALSO MONTHS OR YEARS AFTER THE ORIGINAL CHARGE
WAS BROUGHT. 

WE HAVE NO DOUBT THAT CONGRESS, IF IT CHOSE, COULD PROVIDE FOR
EXACTLY SUCH A SYSTEM.  WE MAY ASSUME THAT CONGRESS HAS CONSTITUTIONAL
POWER TO PROVIDE THAT ALL FEDERAL ISSUES BE TRIED IN THE FEDERAL
COURTS, THAT ALL BE TRIED IN THE COURTS OF THE STATES, OR THAT
JURISDICTION OF SUCH ISSUES BE SHARED.  (FN32)  AND IN THE EXERCISE OF
THAT POWER, WE MAY ASSUME THAT CONGRESS IS CONSTITUTIONALLY FULLY FREE
TO ESTABLISH THE CONDITIONS UNDER WHICH CIVIL OR CRIMINAL PROCEEDINGS
INVOLVING FEDERAL ISSUES MAY BE REMOVED FROM ONE COURT TO ANOTHER. 
(FN33)    BUT BEFORE ESTABLISHING THE REGIME THE INDIVIDUAL PETITIONERS
PROPOSE, CONGRESS WOULD NO DOUBT FULLY CONSIDER MANY QUESTIONS.  THE
COURT OF APPEALS FOR THE FOURTH CIRCUIT HAS MENTIONED SOME OF THE
PRACTICAL QUESTIONS THAT WOULD BE INVOLVED:  "IF THE REMOVAL
JURISDICTION IS TO BE EXPANDED AND FEDERAL COURTS ARE TO TRY OFFENSES
AGAINST STATE LAWS, CASES NOT ORIGINALLY COGNIZABLE IN THE FEDERAL
COURTS, WHAT LAW IS TO GOVERN, WHO IS TO PROSECUTE, UNDER WHAT LAW IS A
CONVICTED DEFENDANT TO BE SENTENCED AND TO WHOSE INSTITUTION IS HE TO
BE COMMITTED  ...  ?"  BAINES V. CITY OF DANVILLE, 357 F.2D 756, 768
769.  TO THESE QUESTIONS THERE SURELY SHOULD BE ADDED THE VERY
PRACTICAL INQUIRY AS TO HOW MANY HUNDREDS OF NEW FEDERAL JUDGES AND
OTHER FEDERAL COURT PERSONNEL WOULD HAVE TO BE ADDED IN ORDER TO COPE
WITH THE VASTLY INCREASED CASELOAD THAT WOULD BE PRODUCED. 

WE NEED NOT ATTEMPT TO CATALOG THE ISSUES OF POLICY THAT CONGRESS
MIGHT FEEL CALLED UPON TO CONSIDER BEFORE MAKING SUCH AN EXTREME CHANGE
IN THE REMOVAL STATUTE.  BUT PROMINENT AMONG THOSE ISSUES, OBVIOUSLY,
WOULD BE AT LEAST TWO FUNDAMENTAL QUESTIONS:  HAS THE HISTORIC PRACTICE
OF HOLDING STATE CRIMINAL TRIALS IN STATE COURTS - WITH POWER OF
ULTIMATE REVIEW OF ANY FEDERAL QUESTIONS IN THIS COURT - BEEN SUCH A
FAILURE THAT THE RELATIONSHIP OF THE STATE AND FEDERAL COURTS SHOULD
NOW BE REVOLUTIONIZED?  WILL INCREASED RESPONSIBILITY OF THE STATE
COURTS IN THE AREA OF FEDERAL CIVIL RIGHTS BE PROMOTED AND ENCOURAGED
BY DENYING THOSE COURTS ANY POWER AT ALL TO EXERCISE THAT
RESPONSIBILITY? 

WE POSTULATE THESE GRAVE QUESTIONS OF PRACTICE AND POLICY ONLY TO
POINT OUT THAT IF CHANGES ARE TO BE MADE IN THE LONG-SETTLED
INTERPRETATION OF THE PROVISIONS OF THIS CENTURY-OLD REMOVAL STATUTE,
IT IS FOR CONGRESS AND NOT FOR THIS COURT TO MAKE THEM.  FULLY AWARE OF
THE ESTABLISHED MEANING THE REMOVAL STATUTE HAD BEEN GIVEN BY A
CONSISTENT SERIES OF DECISIONS IN THIS COURT, CONGRESS IN 1964 DECLINED
TO ACT ON PROPOSALS TO AMEND THE LAW.  (FN34)  ALL THAT CONGRESS DID
WAS TO MAKE REMAND ORDERS APPEALABLE, AND THUS INVITE A CONTEMPORARY
JUDICIAL CONSIDERATION OF THE MEANING OF THE UNCHANGED PROVISIONS OF 28
U.S.C. SEC 1443.  WE HAVE ACCEPTED THAT INVITATION AND HAVE FULLY
CONSIDERED THE LANGUAGE AND HISTORY OF THOSE PROVISIONS.  HAVING DONE
SO, WE FIND THAT SEC 1443 DOES NOT JUSTIFY REMOVAL OF THESE STATE
CRIMINAL PROSECUTIONS TO A FEDERAL COURT.  ACCORDINGLY THE JUDGMENT OF
THE COURT OF APPEALS IS REVERSED.  IT IS SO ORDERED. 

FN1 THE DEFENDANTS WERE CHARGED WITH VIOLATING PARAGRAPH ONE OF SEC
2296.5 OF THE MISSISSIPPI CODE (1964 CUM. SUPP.), LAWS 1960, C. 244,
SEC 1, WHICH PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON OR PERSONS TO WILFULLY OBSTRUCT
THE FREE, CONVENIENT AND NORMAL USE OF ANY PUBLIC SIDEWALK, STREET,
HIGHWAY, ALLEY, ROAD, OR OTHER PASSAGEWAY BY IMPEDING, HINDERING,
STIFLING, RETARDING OR RESTRAINING TRAFFIC OR PASSAGE THEREON, AND ANY
PERSON OR PERSONS VIOLATING THE PROVISIONS OF THIS ACT SHALL BE GUILTY
OF A MISDEMEANOR, AND UPON CONVICTION THEREOF, SHALL BE PUNISHED BY A
FINE OF NOT MORE THAN FIVE HUNDRED DOLLARS ($500.00) OR BY CONFINEMENT
IN THE COUNTY JAIL NOT EXCEEDING SIX (6) MONTHS, OR BY BOTH SUCH FINE
AND IMPRISONMENT." 

FN2  "CIVIL RIGHTS CASES. 

"ANY OF THE FOLLOWING CIVIL ACTIONS OR CRIMINAL PROSECUTIONS,
COMMENCED IN A STATE COURT MAY BE REMOVED BY THE DEFENDANT TO THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT AND DIVISION
EMBRACING THE PLACE WHEREIN IT IS PENDING: 

"(1)  AGAINST ANY PERSON WHO IS DENIED OR CANNOT ENFORCE IN THE
COURTS OF SUCH STATE A RIGHT UNDER ANY LAW PROVIDING FOR THE EQUAL
CIVIL RIGHTS OF CITIZENS OF THE UNITED STATES, OR OF ALL PERSONS WITHIN
THE JURISDICTION THEREOF. 

"(2)  FOR ANY ACT UNDER COLOR OF AUTHORITY DERIVED FROM ANY LAW
PROVIDING FOR EQUAL RIGHTS, OR FOR REFUSING TO DO ANY ACT ON THE GROUND
THAT IT WOULD BE INCONSISTENT WITH SUCH LAW."  28 U.S.C. SEC 1443 (1964
ED.).  SEE GEORGIA V. RACHEL, ANTE, P. 780. 

FN3  THE REMOVAL PETITIONS SPECIFICALLY INVOKED RIGHTS TO FREEDOM OF
SPEECH, PETITION, AND ASSEMBLY UNDER THE FIRST AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION, AS WELL AS ADDITIONAL RIGHTS UNDER THE
EQUAL PROTECTION, DUE PROCESS, AND PRIVILEGES AND IMMUNITIES CLAUSES OF
THE FOURTEENTH AMENDMENT.  42 U.S.C. SEC 1971(A)(1) (1964 ED.), WHICH
GUARANTEES THE RIGHT TO VOTE, FREE FROM RACIAL DISCRIMINATION,
PROVIDES: 

"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." 

42 U.S.C. SEC 1971(B) (1964 ED.)  PROVIDES: 

"NO PERSON, WHETHER ACTING UNDER COLOR OF LAW OR OTHERWISE, SHALL
INTIMIDATE, THREATEN, COERCE, OR ATTEMPT TO INTIMIDATE, THREATEN, OR
COERCE ANY OTHER PERSON FOR THE PURPOSE OF INTERFERING WITH THE RIGHT
OF SUCH OTHER PERSON TO VOTE OR TO VOTE AS HE MAY CHOOSE  ...  ."  SEE
ALSO SEC 11(B) OF THE VOTING RIGHTS ACT OF 1965, 79 STAT. 443, 42
U.S.C. SEC 1973IB) (1964 ED., SUPP. I). 

FN4  "  ...  SEC 1443(2)  ...  IS LIMITED TO FEDERAL OFFICERS AND
THOSE ASSISTING THEM OR OTHERWISE ACTING IN AN OFFICIAL OR QUASI
OFFICIAL CAPACITY."  PEACOCK V. CITY OF GREENWOOD, 347 F.2D 679, 686
(C.A. 5TH CIR.).  IN REACHING THIS CONCLUSION, THE COURT OF APPEALS
RELIED STRONGLY ON THE DECISION OF THE DISTRICT COURT IN CITY OF
CLARKSDALE V. GERTGE, 237 F. SUPP. 213 (D.C.N.D. MISS.). THE COURT OF
APPEALS FOR THE FOURTH CIRCUIT HAS ALSO ADOPTED THIS CONSTRUCTION OF
SEC 1443(2).  BAINES V. CITY OF DANVILLE, 357 F.2D 756, 771-772.  THE
COURTS OF APPEALS FOR THE SECOND AND THIRD CIRCUITS HAVE REFUSED TO
GRANT REMOVAL UNDER SEC 1443(2) ON ALLEGATIONS COMPARABLE TO THOSE IN
THE PRESENT CASE.  NEW YORK V. GALAMISON, 342 F.2D 255 (C.A.2D CIR.);
CITY OF CHESTER V. ANDERSON, 347 F.2D 823 (C.A. 3D CIR.).  SEE ALSO
ARKANSAS V. HOWARD, 218 F. SUPP. 626 (D.C.E.D. ARK.). 

FN5  THE SEVERAL DEFENDANTS WERE CHARGED VARIOUSLY WITH ASSAULT,
INTERFERING WITH AN OFFICER IN THE PERFORMANCE OF HIS DUTY, DISTURBING
THE PEACE, CREATING A DISTURBANCE IN A PUBLIC PLACE, INCITING TO RIOT,
PARADING WITHOUT A PERMIT, ASSAULT AND BATTERY BY BITING A POLICE
OFFICER, CONTRIBUTING TO THE DELINQUENCY OF A MINOR, OPERATING A MOTOR
VEHICLE WITH IMPROPER LICENSE TAGS, RECKLESS DRIVING, AND PROFANITY AND
USE OF VULGAR LANGUAGE. 

FN6  UNDER SEC 1443(1), THE DEFENDANTS ALLEGED THAT THEY HAD BEEN
DENIED AND COULD NOT ENFORCE IN THE COURTS OF THE STATE RIGHTS UNDER
LAWS PROVIDING FOR EQUAL CIVIL RIGHTS, IN THAT THE COURTS AND LAW
ENFORCEMENT OFFICERS OF THE STATE WERE PREJUDICED AGAINST THEM BECAUSE
OF THEIR RACE OR THEIR ASSOCIATION WITH NEGROES, AND BECAUSE OF THE
COMMITMENT OF THE COURTS AND OFFICERS TO THE STATE'S DECLARED POLICY OF
RACIAL SEGREGATION.  THE DEFENDANTS ALSO ALLEGED THAT THE TRIAL WOULD
TAKE PLACE IN A SEGREGATED COURTROOM, THAT NEGRO WITNESSES AND
ATTORNEYS WOULD BE ADDRESSED BY THEIR FIRST NAMES, THAT NEGROES WOULD
BE EXCLUDED FROM THE JURIES, AND THAT THE JUDGES AND PROSECUTORS WHO
WOULD PARTICIPATE IN THE TRIAL HAD GAINED OFFICE AT ELECTIONS IN WHICH
NEGRO VOTERS WERE EXCLUDED.  THE DEFENDANTS ALSO URGED THAT THE
STATUTES AND ORDINANCES UNDER WHICH THEY WERE CHARGED WERE
UNCONSTITUTIONALLY VAGUE ON THEIR FACE, AND THAT THE STATUTES AND
ORDINANCES WERE UNCONSTITUTIONAL AS APPLIED TO THE DEFENDANTS'
CONDUCT. 

FN7  UNDER SEC 1443(2), THE DEFENDANTS ALLEGED THAT THEY HAD ENGAGED
SOLELY IN CONDUCT PROTECTED BY THE FIRST AMENDMENT, BY THE EQUAL
PROTECTION, DUE PROCESS, AND PRIVILEGES AND IMMUNITIES CLAUSES OF THE
FOURTEENTH AMENDMENT, AND BY 42 U.S.C. SEC 1981 (1964 ED.), WHICH
PROVIDES: 

"ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES SHALL HAVE
THE SAME RIGHT IN EVERY STATE AND TERRITORY TO MAKE AND ENFORCE
CONTRACTS, TO SUE, BE PARTIES, GIVE EVIDENCE, AND TO THE FULL AND EQUAL
BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE SECURITY OF PERSONS AND
PROPERTY AS IS ENJOYED BY WHITE CITIZENS, AND SHALL BE SUBJECT TO LIKE
PUNISHMENT, PAINS, PENALTIES, TAXES, LICENSES, AND EXACTIONS OF EVERY
KIND, AND TO NO OTHER." 

FN8  THE CITY OF GREENWOOD, PETITIONER IN NO. 471, CHALLENGES THE
COURT OF APPEALS' INTERPRETATION OF SEC 1443(1); THE INDIVIDUAL
PETITIONERS IN NO. 649 CHALLENGE THE COURT'S INTERPRETATION OF SEC
1443(2). 

FN9  THE PROVISIONS OF WHAT IS NOW SEC 1443(2) HAVE NEVER BEEN
CONSTRUED BY THIS COURT DURING THE CENTURY THAT HAS PASSED SINCE THE
LAW'S ORIGINAL ENACTMENT.  THE COURTS OF APPEALS THAT HAVE RECENTLY
GIVEN CONSIDERATION TO THE SUBSECTION HAVE UNANIMOUSLY REJECTED THE
CLAIMS ADVANCED IN THIS CASE BY THE INDIVIDUAL PETITIONERS.  SEE, IN
ADDITION TO THE PRESENT CASE IN THE FIFTH CIRCUIT, 347 F.2D 679, THE
FOLLOWING CASES:  NEW YORK V. GALAMISON, 342 F.2D 255 (C.A.2D CIR.);
CITY OF CHESTER V. ANDERSON, 347 F.2D 823 (C.A. 3D CIR.); BAINES V.
CITY OF DANVILLE, 357 F.2D 756 (C.A. 4TH CIR.). SE NOTE 4, SUPRA. 

FN10  SEE REV. STAT. SEC 641 (1874); JUDICIAL CODE OF 1911, C. 231,
SEC 31, 36 STAT.  1096; 28 U.S.C. SEC 74 (1926 ED.); 28 U.S.C. SEC 1443
(1952 ED.).  ALTHOUGH THE 1948 REVISION MODIFIED THE LANGUAGE OF THE
PRIOR PROVISION IN NUMEROUS RESPECTS, INCLUDING THE ELIMINATION OF THE
PHRASE "OFFICER  ...  OR OTHER PERSON," THE REVISER'S NOTE STATES
SIMPLY THAT "CHANGES WERE MADE IN PHRASEOLOGY."  H.R. REP. NO. 308,
80TH CONG., 1ST SESS., P. A134.  THE STATUTORY DEVELOPMENT OF THE CIVIL
RIGHTS REMOVAL PROVISION IS SET OUT IN THE APPENDIX TO THE COURT'S
OPINION IN GEORGIA V. RACHEL, ANTE. 

FN11  BY THE ACT OF MARCH 3, 1865, 13 STAT. 507, CONGRESS ESTABLISHED
A BUREAU UNDER THE WAR DEPARTMENT, TO LAST DURING THE REBELLION AND FOR
ONE YEAR THEREAFTER, TO ASSIST REFUGEES AND FREEDMEN FROM REBEL STATES
AND OTHER AREAS BY PROVIDING FOOD, SHELTER, AND CLOTHING.  THE BUREAU
WAS UNDER THE DIRECTION OF A COMMISSIONER APPOINTED BY THE PRESIDENT
WITH THE CONSENT OF THE SENATE.  UNDER SEC 4 OF THE ACT, THE
COMMISSIONER WAS AUTHORIZED TO SET APART FOR LOYAL REFUGEES AND
FREEDMEN UP TO 40 ACRES OF LANDS THAT HAD BEEN ABANDONED IN THE REBEL
STATES OR THAT HAD BEEN ACQUIRED BY THE UNITED STATES BY CONFISCATION
OR SALE.  THE SECTION SPECIFICALLY PROVIDED THAT PERSONS ASSIGNED TO
SUCH LANDS "SHALL BE PROTECTED IN THE USE AND ENJOYMENT OF THE LAND." 
13 STAT. 508.  THE ACT WAS CONTINUED FOR TWO YEARS BY THE ACT OF JULY
16, 1866, C. 200, SEC 1, 14 STAT. 173.  IN ADDITION, SEC 3 OF THE
LATTER ACT AMENDED THE 1865 ACT TO AUTHORIZE THE COMMISSIONER TO
"APPOINT SUCH AGENTS, CLERKS, AND ASSISTANTS AS MAY BE REQUIRED FOR THE
PROPER CONDUCT OF THE BUREAU."  THE SECTION ALSO PROVIDED THAT MILITARY
OFFICERS OR ENLISTED MEN MIGHT BE DETAILED FOR SERVICE AND ASSIGNED TO
DUTY UNDER THE ACT.  14 STAT. 174.  FURTHER, SEC 13 OF THE AMENDATORY
ACT OF 1866 SPECIFICALLY PROVIDED THAT "THE COMMISSIONER OF THIS BUREAU
SHALL AT ALL TIMES CO-OPERATE WITH PRIVATE BENEVOLENT ASSOCIATIONS OF
CITIZENS IN AID OF FREEDMEN, AND WITH AGENTS AND TEACHERS, DULY
ACCREDITED AND APPOINTED BY THEM, AND SHALL HIRE OR PROVIDE BY LEASE
BUILDINGS FOR PURPOSES OF EDUCATION WHENEVER SUCH ASSOCIATIONS SHALL,
WITHOUT COST TO THE GOVERNMENT, PROVIDE SUITABLE TEACHERS AND MEANS OF
INSTRUCTION; AND HE SHALL FURNISH SUCH PROTECTION AS MAY BE REQUIRED
FOR THE SAFE CONDUCT OF SUCH SCHOOLS."  14 STAT. 176.  SECTION 14 OF
THE AMENDATORY ACT OF 1866 ESTABLISHED, IN ESSENTIALLY THE SAME TERMS
FOR STATES WHERE THE ORDINARY COURSE OF JUDICIAL PROCEEDINGS HAD BEEN
INTERRUPTED BY THE REBELLION, THE RIGHTS AND OBLIGATIONS THAT HAD
ALREADY BEEN ENACTED IN SEC 1 OF THE ACT OF APRIL 9, 1866 (THE CIVIL
RIGHTS ACT), AND PROVIDED FOR THE EXTENSION OF MILITARY JURISDICTION TO
THOSE STATES IN ORDER TO PROTECT THE RIGHTS SECURED.  14 STAT. 176
177.  BY THE ACT OF JULY 6, 1868, 15 STAT. 83, THE FREEDMEN'S BUREAU
LEGISLATION WAS CONTINUED FOR AN ADDITIONAL YEAR. 

FN12  "SEC.  4.  AND BE IT FURTHER ENACTED, THAT  ...  THE OFFICERS
AND AGENTS OF THE FREEDMEN'S BUREAU  ...  SHALL BE, AND THEY ARE
HEREBY, SPECIALLY AUTHORIZED AND REQUIRED, AT THE EXPENSE OF THE UNITED
STATES, TO INSTITUTE PROCEEDINGS AGAINST ALL AND EVERY PERSON WHO SHALL
VIOLATE THE PROVISIONS OF THIS ACT, AND CAUSE HIM OR THEM TO BE
ARRESTED AND IMPRISONED, OR BAILED, AS THE CASE MAY BE, FOR TRIAL
BEFORE THE CIRCUIT COURT OF THE UNITED STATES OR TERRITORIAL COURT AS
BY THIS ACT HAS COGNIZANCE OF THE OFFENCE."  ACT OF APRIL 9, 1866, 14
STAT. 28. 

THE SAME AUTHORIZATION WAS EXTENDED TO DISTRICT ATTORNEYS, MARSHALS,
AND DEPUTY MARSHALS OF THE UNITED STATES, AND TO COMMISSIONERS
APPOINTED BY THE CIRCUIT AND TERRITORIAL COURTS OF THE UNITED STATES. 
IN ORDER TO EXPEDITE THE ENFORCEMENT OF THE ACT, SEC 4 ALSO AUTHORIZED
THE CIRCUIT COURTS OF THE UNITED STATES AND SUPERIOR TERRITORIAL COURTS
TO INCREASE THE NUMBER OF COMMISSIONERS CHARGED WITH THE DUTIES OF
ENFORCING THE ACT. 

FN13  SECTION 3 OF THE CIVIL RIGHTS ACT OF 1866 PROVIDED FOR REMOVAL
BY ANY "OFFICER ...  OR OTHER PERSON" FOR ACTS UNDER COLOR OF AUTHORITY
DERIVED EITHER FROM THE ACT ITSELF OR FROM THE FREEDMEN'S BUREAU
LEGISLATION.  SEE P. 815, SUPRA.  THUS, REMOVAL WAS GRANTED TO OFFICERS
AND AGENTS OF THE FREEDMEN'S BUREAU FOR ENFORCEMENT ACTIVITY UNDER BOTH
ACTS.  THE CIVIL RIGHTS ACT, HOWEVER, MADE NO SPECIFIC PROVISION FOR
REMOVAL OF ACTIONS AGAINST FREEDMEN AND REFUGEES WHO HAD BEEN AWARDED
ABANDONED OR CONFISCATED LANDS UNDER SEC 4 OF THE FREEDMEN'S BUREAU
ACT.  SEE NOTE 11, SUPRA.    FN14  SECTION 5 ALSO PROVIDED THAT,
"SHOULD ANY MARSHAL OR DEPUTY MARSHAL REFUSE TO RECEIVE SUCH WARRANT OR
OTHER PROCESS WHEN TENDERED, OR TO USE ALL PROPER MEANS DILIGENTLY TO
EXECUTE THE SAME, HE SHALL, ON CONVICTION THEREOF, BE FINED IN THE SUM
OF ONE THOUSAND DOLLARS, TO THE USE OF THE PERSON UPON WHOM THE ACCUSED
IS ALLEGED TO HAVE COMMITTED THE OFFENCE."  14 STAT. 28.  THE CIVIL
RIGHTS ACT OF 1866 WAS PASSED OVER THE VETO OF PRESIDENT JOHNSON. 
BECAUSE OF THE HOSTILITY BETWEEN CONGRESS AND THE PRESIDENT, IT WAS
FEARED THAT THE UNITED STATES MARSHALS, WHO WERE APPOINTED BY THE
PRESIDENT, WOULD NOT ENFORCE THE LAW.  IN SEC 5, THEREFORE, CONGRESS
PROVIDED SEVERE PENALTIES FOR RECALCITRANT MARSHALS.  AT THE SAME TIME
CONGRESS ENSURED THE AVAILABILITY OF PROCESS SERVERS BY PROVIDING FOR
THE APPOINTMENT BY THE COMMISSIONERS OF OTHER "SUITABLE PERSONS" FOR
THE TASK OF ENFORCING THE NEW ACT.  CF. IN RE UPCHURCH, 38 F. 25, 27
(C.C.E.D.N.C.). 

FN15  SECTION 5 OF THE CIVIL RIGHTS ACT OF 1866 PROVIDED: 

"  ...  AND THE BETTER TO ENABLE THE SAID COMMISSIONERS TO EXECUTE
THEIR DUTIES FAITHFULLY AND EFFICIENTLY, IN CONFORMITY WITH THE
CONSTITUTION OF THE UNITED STATES AND THE REQUIREMENTS OF THIS ACT,
THEY ARE HEREBY AUTHORIZED AND EMPOWERED, WITHIN THEIR COUNTIES
RESPECTIVELY, TO APPOINT, IN WRITING, UNDER THEIR HANDS, ANY ONE OR
MORE SUITABLE PERSONS, FROM TIME TO TIME, TO EXECUTE ALL SUCH WARRANTS
AND OTHER PROCESS AS MAY BE ISSUED BY THEM IN THE LAWFUL PERFORMANCE OF
THEIR RESPECTIVE DUTIES; AND THE PERSONS SO APPOINTED TO EXECUTE ANY
WARRANT OR PROCESS AS AFORESAID SHALL HAVE AUTHORITY TO SUMMON AND CALL
TO THEIR AID THE BYSTANDERS OR POSSE COMITATUS OF THE PROPER COUNTY, OR
SUCH PORTION OF THE LAND OR NAVAL FORCES OF THE UNITED STATES, OR OF
THE MILITIA, AS MAY BE NECESSARY TO THE PERFORMANCE OF THE DUTY WITH
WHICH THEY ARE CHARGED, AND TO INSURE A FAITHFUL OBSERVANCE OF THE
CLAUSE OF THE CONSTITUTION WHICH PROHIBITS SLAVERY, IN CONFORMITY WITH
THE PROVISIONS OF THIS ACT; AND SAID WARRANTS SHALL RUN AND BE EXECUTED
BY SAID OFFICERS ANYWHERE IN THE STATE OR TERRITORY WITHIN WHICH THEY
ARE ISSUED."  ACT OF APRIL 9, 1866, 14 STAT. 28.  CF. DAVIS V. SOUTH
CAROLINA, 107 U.S. 597, 600. 

FN16  THIS ASPECT OF SEC 6 THUS DRAWS A THREEFOLD DISTINCTION:
"OFFICERS," "OTHER PERSONS" (PROBABLY THE "ONE OR MORE SUITABLE
PERSONS" REFERRED TO IN SEC 5), AND THOSE "LAWFULLY ASSISTING" THEM. 
WE HAVE NO DOUBT THAT THE GENERAL "OFFICER  ...  OR OTHER PERSON"
LANGUAGE IN SEC 3 OF THE ACT COMPREHENDED ALL THREE OF THESE
CATEGORIES. 

FN17  "IT THUS APPEARS THAT THE STATUTE CONTEMPLATED THAT LITERALLY
THOUSANDS OF PERSONS WOULD BE DRAWN INTO ITS ENFORCEMENT AND THAT SOME
OF THEM OTHERWISE WOULD HAVE LITTLE OR NO APPEARANCE OF OFFICIAL
AUTHORITY."  BAINES V. CITY OF DANVILLE, 357 F.2D 756, 760 (C.A. 4TH
CIR.).  NO SUPPORT FOR THE PROPOSITION THAT "OTHER PERSON" INCLUDES
PRIVATE INDIVIDUALS NOT ACTING IN ASSOCIATION WITH FEDERAL OFFICERS CAN
BE DRAWN FROM THE FACT THAT THE "COLOR OF AUTHORITY" PROVISION OF THE
CIVIL RIGHTS ACT OF 1866 WAS CARRIED FORWARD TOGETHER WITH THE "DENIED
OR CANNOT ENFORCE" PROVISION AS SEC 641 OF THE REVISED STATUTES OF
1874, WHEREAS OTHER REMOVAL PROVISIONS APPLICABLE TO FEDERAL OFFICERS
AND PERSONS ASSISTING THEM WERE CARRIED FORWARD IN SEC 643.  PRIOR TO
1948 THE FEDERAL OFFICER REMOVAL STATUTE, AS HERE RELEVANT, WAS LIMITED
TO REVENUE OFFICERS ENGAGED IN THE ENFORCEMENT OF THE CRIMINAL OR
REVENUE LAWS.  THE PROVISION WAS EXPANDED IN 1948 TO ENCOMPASS ALL
FEDERAL OFFICERS.  SEE 28 U.S.C. SEC 1442(A)(1) (1964 ED.).  AT THE
PRESENT TIME, ALL STATE SUITS OR PROSECUTIONS AGAINST "ANY OFFICER OF
THE UNITED STATES  ...  OR PERSON ACTING UNDER HIM, FOR ANY ACT UNDER
COLOR OF SUCH OFFICE" MAY BE REMOVED.  THUS MANY, IF NOT ALL, OF THE
CASES PRESENTLY REMOVABLE UNDER SEC 1443(2) WOULD NOW ALSO BE REMOVABLE
UNDER SEC 1442(A)(1).  THE PRESENT OVERLAP BETWEEN THE PROVISIONS
SIMPLY REFLECTS THE SEPARATE HISTORICAL EVOLUTION OF THE REMOVAL
PROVISION FOR OFFICERS IN CIVIL RIGHTS LEGISLATION.  INDEED, THERE
APPEARS TO BE REDUNDANCY EVEN WITHIN SEC 1442(A)(1) ITSELF.  SEE
WECHSLER, FEDERAL JURISDICTION AND THE REVISION OF THE JUDICIAL CODE,
13 LAW & CONTEMP.  PROB.  216, 221, N. 18 (1948). 

THE LIMITATION OF 28 U.S.C. SEC 1443(2) TO OFFICIAL ENFORCEMENT
ACTIVITY UNDER FEDERAL EQUAL CIVIL RIGHTS LAWS DRAWS SUPPORT FROM
ANALOGOUS PROVISIONS IN THE REMOVAL STATUTES AVAILABLE TO FEDERAL
REVENUE OFFICERS.  LONG BEFORE 1866, FEDERAL STATUTES HAD GUARANTEED
CERTAIN FEDERAL REVENUE OFFICERS THE RIGHT TO REMOVE TO THE FEDERAL
COURT STATE COURT PROCEEDINGS INSTITUTED AGAINST THEM BECAUSE OF THEIR
OFFICIAL ACTIONS.  THESE STATUTES CHARACTERISTICALLY USED THE "OFFICER
...  OR OTHER PERSON" FORMULA IN DEFINING THOSE ENTITLED TO THE BENEFIT
OF REMOVAL.  THE CUSTOMS ACT OF 1815, THE PRIMORDIAL OFFICER REMOVAL
STATUTE, DESCRIBED THE "OTHER PERSON" AS ONE "AIDING OR ASSISTING" THE
REVENUE OFFICER.  ACT OF FEB. 4, 1815, C. 31, SEC 8, 3 STAT. 198.  SEE
ALSO THE ACT OF MARCH 3, 1815, C. 94, SEC 6, 3 STAT. 233.  THE REMOVAL
CLAUSE OF A SUBSEQUENT STATUTE, THE FORCE ACT OF 1833, WAS LESS
SPECIFIC WITH REGARD TO THE SCOPE OF THE "OTHER PERSON" LANGUAGE, BUT
IT FOCUSED UPON THE POSSIBILITY THAT PERSONS OTHER THAN FEDERAL
OFFICERS OR THEIR DEPUTIES MIGHT FIND THEMSELVES FACED WITH THE
PROSPECT OF DEFENDING TITLES CLAIMED UNDER THE FEDERAL REVENUE LAWS
AGAINST SUITS OR PROSECUTIONS IN STATE COURTS.  ACT OF MARCH 2, 1833,
C. 57, SEC 3, 4 STAT. 633.  THUS, WHEN CONGRESS DESIRED TO GRANT
REMOVAL OF SUITS AND PROSECUTIONS AGAINST PRIVATE INDIVIDUALS, IT KNEW
HOW TO MAKE SPECIFIC PROVISION FOR IT.  CF. ACT OF JAN. 22, 1869, 15
STAT. 267 (HABEAS CORPUS SUSPENSION ACT OF 1863, 12 STAT. 755, AMENDED
TO PERMIT REMOVAL OF SUITS OR PROSECUTIONS AGAINST CARRIERS FOR LOSSES
CAUSED BY REBEL OR UNION FORCES). 

FN18  ACT OF MARCH 3, 1863, C. 81, SECS 1, 4, 12 STAT. 755, 756.  SEE
ALSO THE AMENDATORY ACT OF MAY 11, 1866, 14 STAT. 46. 

FN19  THE PROVISION IN SEC 5 OF THE ACT OF MARCH 3, 1863,
SPECIFICALLY EXTENDING REMOVAL TO CRIMINAL AS WELL AS CIVIL
PROCEEDINGS, WAS ADDED ON THE SENATE FLOOR.  CONG. GLOBE, 37TH CONG.,
3D SESS., 538.  THE DEBATES FOCUSED ON THE NEED TO PROTECT FEDERAL
OFFICERS AGAINST STATE CRIMINAL PROSECUTIONS.  SEE, E.G., ID., AT 535
(REMARKS OF SENATOR CLARK); ID., AT 537-538 (REMARKS OF SENATOR
COWAN). 

FN20  ALTHOUGH, IN THE REVENUE OFFICER REMOVAL PROVISION OF THE
REVENUE ACT OF 1866, ACT OF JULY 13, C. 184, SEC 67, 14 STAT. 171,
CONGRESS EXPRESSLY CHARACTERIZED THE "OTHER PERSON" AS ONE "ACTING
UNDER OR BY AUTHORITY OF ANY REVENUE OFFICER," THAT STATUTE OBVIOUSLY
DREW ON THE COMPARABLE CHARACTERIZATION OF THE "OTHER PERSON" IN THE
CUSTOMS ACT OF 1815, SUPRA, NOTE 17.  AND THE "TITLE" CLAUSE INCLUDED
IN THE 1866 REVENUE OFFICER REMOVAL PROVISION WAS OBVIOUSLY DERIVED
FROM THE FORCE ACT OF 1833, SUPRA, NOTE 17.  THUS, THE SAME LEGISLATIVE
INERTIA THAT LED THE RECONSTRUCTION CONGRESS NOT TO QUALIFY "OTHER
PERSON" IN THE CIVIL RIGHTS ACT OF 1866 ALSO LED IT TO RETAIN SUCH A
QUALIFICATION IN THE REVENUE OFFICER REMOVAL PROVISION ENACTED LATER
THE SAME YEAR.  COMPARE SEC 16 OF THE ACT OF FEBRUARY 28, 1871, 16
STAT. 438 ("TITLE" CLAUSE INCLUDED IN THE OFFICER REMOVAL PROVISION OF
A CIVIL RIGHTS STATUTE).  CF. CITY OF PHILADELPHIA V. THE COLLECTOR, 5
WALL.  720; THE ASSESSOR V. OSBORNES, 9 WALL.  567. 

FN21  THE LANGUAGE "ARREST OR IMPRISONMENT, TRESPASSES, OR WRONGS"
IS, OF COURSE, EASILY READ AS DESCRIBING THE FULL RANGE OF ENFORCEMENT
ACTIVITIES IN WHICH FEDERAL OFFICERS MIGHT BE ENGAGED UNDER THE CIVIL
RIGHTS ACT.  IN A CASE ARISING UNDER SEC 5 OF THE HABEAS CORPUS
SUSPENSION ACT OF 1863, THIS COURT DISALLOWED REMOVAL OF AN ACTION OF
EJECTMENT BROUGHT IN A VIRGINIA STATE COURT BY THE HEIR OF A
CONFEDERATE NAVAL OFFICER WHOSE LAND HAD BEEN SEIZED UNDER THE
CONFISCATION ACT OF JULY 17, 1862, 12 STAT. 589.  THE CONFISCATED LAND
HAD BEEN SOLD AT PUBLIC AUCTION, AND THE RIGHTS TO THE LAND
SUBSEQUENTLY VESTED IN A MAN NAMED BIGELOW, AGAINST WHOM THE ACTION OF
EJECTMENT WAS BROUGHT.  IN DENYING REMOVAL UNDER SEC 5 OF THE 1863 ACT,
MR. JUSTICE STRONG FOR A UNANIMOUS COURT STATED, "THE SPECIFICATION IN
SEC 5 OF ARRESTS AND IMPRISONMENTS  ...  FOLLOWED BY MORE GENERAL
WORDS, JUSTIFIES THE INFERENCE THAT THE OTHER TRESPASSES AND WRONGS
MENTIONED ARE TRESPASSES AND WRONGS EJUSDEM GENERIS, OR OF THE SAME
NATURE AS THOSE WHICH HAD BEEN PREVIOUSLY SPECIFIED."  BIGELOW V.
FORREST, 9 WALL.  339, 348-349. 

FN22  THE SECOND PHRASE OF 28 U.S.C. SEC 1443(2), "FOR REFUSING TO DO
ANY ACT ON THE GROUND THAT IT WOULD BE INCONSISTENT WITH SUCH LAW," HAS
NO RELEVANCE TO THIS CASE.  IT IS CLEAR THAT REMOVAL UNDER THAT
LANGUAGE IS AVAILABLE ONLY TO STATE OFFICERS.  THE PHRASE WAS ADDED BY
THE HOUSE OF REPRESENTATIVES AS AN AMENDMENT TO THE SENATE BILL DURING
THE DEBATES ON THE CIVIL RIGHTS ACT OF 1866.  IN REPORTING THE HOUSE
BILL, REPRESENTATIVE WILSON, THE CHAIRMAN OF THE HOUSE JUDICIARY
COMMITTEE AND THE FLOOR MANAGER OF THE BILL, SAID, "I WILL STATE THAT
THIS AMENDMENT IS INTENDED TO ENABLE STATE OFFICERS, WHO SHALL REFUSE
TO ENFORCE STATE LAWS DISCRIMINATING IN REFERENCE TO THE RIGHTS CREATED
BY SEC 1 OF THE BILL ON ACCOUNT OF RACE OR COLOR, TO REMOVE THEIR CASES
TO THE UNITED STATES COURTS WHEN PROSECUTED FOR REFUSING TO ENFORCE
THOSE LAWS."  CONG. GLOBE, 39TH CONG., 1ST SESS., 1367. 

FN23  SEE GEORGIA V. RACHEL, ANTE, AT 788-792.  SEE ALSO NEW YORK V.
GALAMISON, 342 F.2D 255, 266-268 (C.A.2D CIR.). 

FN24  SEE NOTE 3 AND NOTE 7, SUPRA. 

FN25  SECTION 203(C) OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. SEC
2000A-2(C) (1964 ED.), THE PROVISION INVOLVED IN HAMM V. CITY OF ROCK
HILL, 379 U.S. 306, 310, AND GEORGIA V. RACHEL, ANTE, AT 793-794, 804
805, EXPLICITLY PROVIDES THAT NO PERSON SHALL "PUNISH OR ATTEMPT TO
PUNISH ANY PERSON FOR EXERCISING OR ATTEMPTING TO EXERCISE ANY RIGHT OR
PRIVILEGE" SECURED BY THE PUBLIC ACCOMMODATIONS SECTION OF THE ACT. 
NONE OF THE FEDERAL STATUTES INVOKED BY THE DEFENDANTS IN THE PRESENT
CASE CONTAINS ANY SUCH PROVISION.  SEE NOTE 3 AND NOTE 7, SUPRA. 

FN26  SEE ALSO VIRGINIA V. RIVES, 100 U.S. 313; NEAL V. DELAWARE, 103
U.S. 370; BUSH V. KENTUCKY, 107 U.S. 110; GIBSON V. MISSISSIPPI, 162
U.S. 565; SMITH V. MISSISSIPPI, 162 U.S. 592; MURRAY V. LOUISIANA, 163
U.S. 101; WILLIAMS V. MISSISSIPPI, 170 U.S. 213; DUBUCLET V. LOUISIANA,
103 U.S. 550; SCHMIDT V. COBB, 119 U.S. 286.  CF. GEORGIA V. RACHEL,
ANTE, AT 797 ET SEQ. 

FN27  NEAL V. DELAWARE, 103 U.S. 370; BUSH V. KENTUCKY, 107 U.S.
110. 

FN28  "CIVIL ACTION FOR DEPRIVATION OF RIGHTS. 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICTION THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS."  42 U.S.C. SEC 1983 (1964 ED.). 

FN29  "CONSPIRACY AGAINST RIGHTS OF CITIZENS. 

"IF TWO OR MORE PERSONS CONSPIRE TO INJURE, OPPRESS, THREATEN, OR
INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT
OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES, OR BECAUSE OF HIS HAVING SO EXERCISED THE SAME; OR: 

"IF TWO OR MORE PERSONS GO IN DISGUISE ON THE HIGHWAY, OR ON THE
PREMISES OF ANOTHER, WITH INTENT TO PREVENT OR HINDER HIS FREE EXERCISE
OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SO SECURED: 

"THEY SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN
TEN YEARS, OR BOTH."  18 U.S.C. SEC 241 (1964 ED.). 

CRIMINAL PENALTIES FOR VIOLATIONS OF FEDERAL RIGHTS ARE ALSO IMPOSED
BY 18 U.S.C.  SEC 242 (1964 ED.), WHICH PROVIDES: 

"DEPRIVATION OF RIGHTS UNDER COLOR OF LAW. 

"WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM, WILLFULLY SUBJECTS ANY INHABITANT OF ANY STATE, TERRITORY, OR
DISTRICT TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES
SECURED OR PROTECTED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES,
OR TO DIFFERENT PUNISHMENTS, PAINS, OR PENALTIES, ON ACCOUNT OF SUCH
INHABITANT BEING AN ALIEN, OR BY REASON OF HIS COLOR, OR RACE, THAN ARE
PRESCRIBED FOR THE PUNISHMENT OF CITIZENS, SHALL BE FINED NOT MORE THAN
$1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH."  SEE UNITED
STATES V. PRICE, 383 U.S. 787. 

FN30  ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS 214, 216 (1965).  SEE GEORGIA V. RACHEL, ANTE,
P. 788, N. 8. 

FN31  SUCH REMOVAL PETITIONS COULD, OF COURSE, BE FILED NOT ONLY BY
NEGROES, BUT ALSO BY MEMBERS OF THE CAUCASIAN OR ANY OTHER RACE. 

FN32  SEE ROMERO V. INTERNATIONAL TERMINAL OPERATING CO., 358 U.S.
354, 359-380; 389-412 (SEPARATE OPINION OF MR. JUSTICE BRENNAN). 

FN33  SEE MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304, 348-350; THE
MOSES TAYLOR, 4 WALL.  411, 428-430; THE MAYOR V. COOPER, 6 WALL.  247,
251-254; RAILWAY CO. V. WHITTON, 13 WALL.  270, 287-290; TENNESSEE V.
DAVIS, 100 U.S. 257, 262-271; STRAUDER V. WEST VIRGINIA, 100 U.S. 303,
310-312.  A NUMBER OF BILLS ENLARGING THE RIGHT OF REMOVAL TO A FEDERAL
COURT IN CIVIL RIGHTS CASES ARE BEFORE THE PRESENT CONGRESS.  SEE, FOR
EXAMPLE:  S. 2923, S. 3170, H.R. 12807, H.R. 12818, H.R. 12845, H.R.
13500, H.R. 13941, H.R. 14112, H.R. 14113, H.R. 14770, H.R. 14775, H.R.
14836 (89TH CONG., 2D SESS.). 

FN34  SECTION 903 OF H.R. 7702, 88TH CONG., 1ST SESS., WOULD HAVE
AMENDED 28 U.S.C.  SEC 1443 TO ENLARGE THE AVAILABILITY OF REMOVAL IN
CIVIL RIGHTS CASES.  H.R. 7702, HOWEVER, DID NOT EMERGE FROM THE
JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES.  CF. GEORGIA V.
RACHEL, ANTE, P. 787, N. 7.    MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF
JUSTICE, MR. JUSTICE BRENNAN AND MR. JUSTICE FORTAS CONCUR,
DISSENTING. 

THESE STATE COURT DEFENDANTS WHO SEEK THE PROTECTION OF THE FEDERAL
COURT WERE CIVIL RIGHTS WORKERS IN MISSISSIPPI.  SOME WERE AFFILIATED
WITH THE STUDENT NON-VIOLENT COORDINATING COMMITTEE ENGAGED IN GETTING
NEGROES REGISTERED AS VOTERS.  THEY WERE CHARGED IN THE STATE COURTS
WITH OBSTRUCTING THE PUBLIC STREETS.  OTHER DEFENDANTS WERE CIVIL
RIGHTS WORKERS AFFILIATED WITH THE COUNCIL OF FEDERATED ORGANIZATIONS
WHICH AIMS TO ACHIEVE FULL AND COMPLETE INTEGRATION OF NEGROES INTO THE
POLITICAL AND ECONOMIC LIFE OF MISSISSIPPI.  SOME ALLEGED THAT, WHILE
PEACEFULLY PICKETING, THEY WERE ARRESTED AND CHARGED WITH ASSAULT AND
BATTERY OR INTERFERING WITH AN OFFICER.  OTHERS WERE CHARGED WITH
ILLEGAL OPERATION OF MOTOR VEHICLES, OR FOR CONTRIBUTING TO THE
DELINQUENCY OF A MINOR OR PARADING WITHOUT A PERMIT.  SOME WERE CHARGED
WITH DISTURBING THE PEACE OR INCITING A RIOT. 

ALL SOUGHT REMOVAL, SOME ALLEGING IN THEIR MOTIONS THAT THE STATE
PROSECUTION WAS PART AND PARCEL OF MISSISSIPPI'S POLICY OF RACIAL
SEGREGATION.  OTHERS ALLEGED THAT THEY WERE WHOLLY INNOCENT, THE STATE
PROSECUTIONS BEING FOR THE SOLE PURPOSE OF HARASSING THEM AND OF
PUNISHING THEM FOR EXERCISING THEIR CONSTITUTIONAL RIGHTS TO PROTEST
THE CONDITIONS OF RACIAL DISCRIMINATION AND SEGREGATION.  IN ALL THESE
CASES THE DISTRICT COURT REMANDED TO THE STATE COURTS.  THE COURT OF
APPEALS REVERSED (347 F.2D 679; 347 F.2D 986) HOLDING THAT THE
ALLEGATIONS WERE SUFFICIENT TO MAKE OUT A CASE FOR REMOVAL AND THAT
HEARINGS ON THE TRUTH OF THE ALLEGATIONS WERE REQUIRED. 

I AGREE WITH THAT RESULT.  AS I WILL SHOW, THE FEDERAL REGIME WAS
DESIGNED FROM THE BEGINNING TO AFFORD SOME PROTECTION AGAINST LOCAL
PASSIONS AND PREJUDICES BY THE IMPORTANT PRETRIAL FEDERAL REMEDY OF
REMOVAL; AND THE CIVIL RIGHTS LEGISLATION WITH WHICH WE DEAL SUPPORTS
THE MANDATES OF THE COURT OF APPEALS. 

  I. 

THE FEDERAL DISTRICT COURTS WERE CREATED BY THE FIRST CONGRESS (1
STAT. 73) WHICH DESIGNATED A FEW HEADS OF JURISDICTION FOR THE DISTRICT
COURTS (SEC 9) AND FOR THE CIRCUIT COURTS (SEC 11) - SOME BEING
CONCURRENT WITH THOSE OF THE STATE COURTS, OTHERS BEING EXCLUSIVE. 
THESE CATEGORIES OF JURISDICTION - LATER ENLARGED - WERE LARGELY FOR
THE BENEFIT OF PLAINTIFFS.  THERE WAS CONCERN THAT THE RIVALRIES,
JEALOUSIES, AND ANIMOSITIES AMONG THE STATES MADE NECESSARY AND
APPROPRIATE THE CREATION OF A DUAL SYSTEM OF COURTS. 

LACK OF TRUST IN SOME OF THE STATE COURTS FOR EXECUTION OF FEDERAL
LAWS WAS REFLECTED IN THE FIRST CONGRESS THAT ESTABLISHED THE DUAL
SYSTEM.  THUS MADISON SAID: 

"  ...  A REVIEW OF THE CONSTITUTION OF THE COURTS IN MANY STATES
WILL SATISFY US THAT THEY CANNOT BE TRUSTED WITH THE EXECUTION OF THE
FEDERAL LAWS.  IN SOME OF THE STATES, IT IS TRUE, THEY MIGHT, AND WOULD
BE SAFE AND PROPER ORGANS OF SUCH A JURISDICTION; BUT IN OTHERS THEY
ARE SO DEPENDENT ON STATE LEGISLATURES, THAT TO MAKE THE FEDERAL LAWS
DEPENDENT ON THEM, WOULD THROW US BACK INTO ALL THE EMBARRASSMENTS
WHICH CHARACTERIZED OUR FORMER SITUATION.  IN CONNECTICUT THE JUDGES
ARE APPOINTED ANNUALLY BY THE LEGISLATURE, AND THE LEGISLATURE IS
ITSELF THE LAST RESORT IN CIVIL CASES."  1 ANN. CONG. 813. 

THOUGH FEDERAL QUESTION JURISDICTION WAS ORIGINALLY LIMITED TO A FEW
CLASSES OF CASES, THE CREATION OF DIVERSITY JURISDICTION (SEC 11, 1
STAT. 78) WAS A SIGNIFICANT MANIFESTATION OF THIS SAME FEELING.  AS
CHIEF JUSTICE MARSHALL SAID IN BANK OF UNITED STATES V. DEVEAUX, 5
CRANCH 61, 87: 

"THE JUDICIAL DEPARTMENT WAS INTRODUCED INTO THE AMERICAN
CONSTITUTION UNDER IMPRESSIONS, AND WITH VIEWS, WHICH ARE TOO APPARENT
NOT TO BE PERCEIVED BY ALL.  HOWEVER TRUE THE FACT MAY BE, THAT THE
TRIBUNALS OF THE STATES WILL ADMINISTER JUSTICE AS IMPARTIALLY AS THOSE
OF THE NATION, TO PARTIES OF EVERY DESCRIPTION, IT IS NOT LESS TRUE
THAT THE CONSTITUTION ITSELF EITHER ENTERTAINS APPREHENSIONS ON THIS
SUBJECT, OR VIEWS WITH SUCH INDULGENCE THE POSSIBLE FEARS AND
APPREHENSIONS OF SUITORS, THAT IT HAS ESTABLISHED NATIONAL TRIBUNALS
FOR THE DECISION OF CONTROVERSIES BETWEEN ALIENS AND A CITIZEN, OR
BETWEEN CITIZENS OF DIFFERENT STATES." 

AND SEE MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304, 347. 

THE ALTERNATIVE - THE ONE INDIA TOOK - WAS TO LET THE STATE COURTS BE
THE ARBITERS OF FEDERAL AS WELL AS STATE RIGHTS WITH ULTIMATE REVIEW IN
THE FEDERAL SUPREME COURT.  BUT THE FEDERAL COURT SYSTEM WAS THE CHOICE
WE MADE AND THOSE COURTS HAVE FUNCTIONED THROUGHOUT OUR HISTORY.  IN
THE YEARS SINCE 1789, THE JURISDICTION OF THE FEDERAL COURTS WHERE
FEDERAL RIGHTS ARE IN ISSUE HAS BEEN STEADILY EXPANDED (SEE HART &
WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 727-733 (1953)),
PARTICULARLY WITH THE CREATION OF A GENERAL "FEDERAL QUESTION"
JURISDICTION IN 1875.  18 STAT. 470. 

WHILE THE FEDERAL COURTS WERE FOR THE MOST PART CUSTODIANS OF RIGHTS
ASSERTED BY PLAINTIFFS, FROM THE VERY BEGINNING THEY WERE ALSO THE
HAVEN OF A RESTRICTED GROUP OF DEFENDANTS AS WELL.  I REFER TO SEC 12
OF THE JUDICIARY ACT OF 1789, 1 STAT. 79, WHICH PERMITTED REMOVAL OF
CASES FROM A STATE COURT TO A FEDERAL COURT ON THE GROUND OF DIVERSITY
OF CITIZENSHIP.  THUS FROM THE VERY START WE HAVE HAD A REMOVAL
JURISDICTION FOR THE PROTECTION OF DEFENDANTS ON A PARTIAL PARITY WITH
FEDERAL JURISDICTION FOR PROTECTION OF PLAINTIFFS. 

THE POWER OF A DEFENDANT TO REMOVE CASES FROM A STATE COURT TO A
FEDERAL COURT WAS NOT GREATLY ENLARGED UNTIL PASSAGE OF THE FIRST CIVIL
RIGHTS ACT,  (FN1) SEC 3 OF WHICH PROVIDED: 

"  ...  THE DISTRICT COURTS OF THE UNITED STATES, WITHIN THEIR
RESPECTIVE DISTRICTS, SHALL HAVE, EXCLUSIVELY OF THE COURTS OF THE
SEVERAL STATES, COGNIZANCE OF ALL CRIMES AND OFFENCES COMMITTED AGAINST
THE PROVISIONS OF THIS ACT, AND ALSO, CONCURRENTLY WITH THE CIRCUIT
COURTS OF THE UNITED STATES, OF ALL CAUSES, CIVIL AND CRIMINAL,
AFFECTING PERSONS WHO ARE DENIED OR CANNOT ENFORCE IN THE COURTS OR
JUDICIAL TRIBUNALS OF THE STATE OR LOCALITY WHERE THEY MAY BE ANY OF
THE RIGHTS SECURED TO THEM BY THE FIRST SECTION OF THIS ACT; AND IF ANY
SUIT OR PROSECUTION, CIVIL OR CRIMINAL, HAS BEEN OR SHALL BE COMMENCED
IN ANY STATE COURT, AGAINST ANY SUCH PERSON, FOR ANY CAUSE WHATSOEVER
... SUCH DEFENDANT SHALL HAVE THE RIGHT TO REMOVE SUCH CAUSE FOR TRIAL
TO THE PROPER DISTRICT OR CIRCUIT COURT IN THE MANNER PRESCRIBED BY THE
'ACT RELATING TO HABEAS CORPUS AND REGULATING JUDICIAL PROCEEDINGS IN
CERTAIN CASES,' APPROVED MARCH THREE, EIGHTEEN HUNDRED AND SIXTY-THREE,
AND ALL ACTS AMENDATORY THEREOF  ...  ." 

WITH THE COMING OF THE CIVIL WAR IT BECAME PLAIN THAT SOME STATE
COURTS MIGHT BE INSTRUMENTS FOR THE DESTRUCTION THROUGH HARASSMENT OF
GUARANTEED FEDERAL CIVIL RIGHTS.  WE HAVE SEEN THIS DEMONSTRATED IN THE
FLOW OF CASES COMING THIS WAY.  BUT THE MINORITIES WHO ARE THE SUBJECT
OF REPRESSION ARE NOT ONLY THOSE WHO ESPOUSE THE CAUSE OF RACIAL
EQUALITY.  JEHOVAH'S WITNESSES IN MANY PARTS OF THE COUNTRY HAVE
LIKEWISE FELT THE BRUNT OF MAJORITARIAN CONTROL THROUGH STATE CRIMINAL
ADMINISTRATION.  BEFORE THEM WERE THE LABOR UNION ORGANIZERS.  BEFORE
THEM WERE THE ORIENTALS.  IT IS IN THIS SETTING THAT THE REMOVAL
JURISDICTION MUST BE CONSIDERED. 

THE REMOVAL LAWS PASSED FROM TIME TO TIME HAVE RESPONDED TO TWO MAIN
CONCERNS:  FIRST, A FEDERAL FACT-FINDING FORUM IS OFTEN INDISPENSABLE
TO THE EFFECTIVE ENFORCEMENT OF THOSE GUARANTEES AGAINST LOCAL ACTION. 
(FN2)  THE FEDERAL GUARANTEE TURNS ORDINARILY UPON CONTESTED ISSUES OF
FACT.  THOSE RIGHTS, THEREFORE, WILL BE OF ONLY ACADEMIC VALUE IN MANY
AREAS OF THE COUNTRY UNLESS THE FACTS ARE OBJECTIVELY FOUND.  SECONDLY,
SWIFT ENFORCEMENT OF THE FEDERAL RIGHT IS IMPERATIVE IF THE GUARANTEES
ARE TO SURVIVE AND NOT BE SLOWLY STRANGLED BY LONG, DRAWN-OUT, COSTLY,
CUMBERSOME PROCEEDINGS WHICH THE CONGRESS FEARED MIGHT RESULT IN SOME
STATE COURTS.  THE DELAYS OF STATE CRIMINAL PROCESS, THE PERILOUS
VICISSITUDES OF LITIGATION IN THE STATE COURTS, THE ONEROUS BURDENS ON
THE POOR AND THE INDIGENT WHO USUALLY ESPOUSE UNPOPULAR CAUSES - THESE
THREATEN TO ENGULF THE FEDERAL GUARANTEES.  IT IS IN THAT LIGHT THAT 28
U.S.C. SEC 1443(1) SHOULD BE READ AND CONSTRUED. 

II. 

THE CRITICAL WORDS, SO FAR AS THE PRESENT CASES ARE CONCERNED, ARE
"DENIED OR CANNOT ENFORCE IN THE COURTS OR JUDICIAL TRIBUNALS" OF THE
STATE OR LOCALITY WHERE THEY MAY BE THOSE RIGHTS WHICH, IN THE MOST
RECENT VERSION OF THE REMOVAL STATUTE,  (FN3) ARE CHARACTERIZED AS
THOSE SECURED BY "ANY LAW PROVIDING FOR THE EQUAL CIVIL RIGHTS OF
CITIZENS OF THE UNITED STATES, OR OF ALL PERSONS WITHIN THE
JURISDICTION THEREOF."  (FN4) 

IT IS DIFFICULT TO DISCERN WHETHER THE COURT ASCRIBES DIFFERENT
MEANINGS TO THE WORDS "IS DENIED" AND "CANNOT ENFORCE" AS USED IN THE
STATUTE.  IN MY VIEW, IT IS ESSENTIAL THAT THESE TWO ASPECTS OF SEC
1443(1) BE DISTINGUISHED.  THE WORDS "IS DENIED" REFER TO A PRESENT
DEPRIVATION OF RIGHTS WHILE THE LANGUAGE "CANNOT ENFORCE" HAS REFERENCE
TO AN ANTICIPATED STATE COURT FRUSTRATION OF EQUAL CIVIL RIGHTS. 
VIRGINIA V. RIVES, 100 U.S. 313, AND SUBSEQUENT DECISIONS OF THIS COURT
WHICH THE MAJORITY DISCUSSES, WERE CONCERNED WITH CLAIMS OF THE "CANNOT
ENFORCE" VARIETY.  (FN5)  THE COURT DEALT, IN THOSE CASES, WITH THE
ISSUE OF UNEQUAL ADMINISTRATION OF JUSTICE IN THE PROCESS OF JURY
SELECTION.  THE CONCERN WAS THAT REMOVAL MIGHT BE PERMITTED ON MERELY A
SPECULATION THAT THE STATE COURT WOULD NOT, IN THE FUTURE, DISCHARGE
ITS OBLIGATION TO FOLLOW THE "LAW OF THE LAND."  WHATEVER THE
CORRECTNESS OF THOSE DECISIONS AS TO THE "CANNOT ENFORCE" CLAUSE, THEY
HAVE NO APPLICATION WHATEVER TO A CLAIM OF A PRESENT DENIAL OF EQUAL
CIVIL RIGHTS. 

               A. 

A DEFENDANT "IS DENIED" HIS FEDERAL RIGHT WHEN "DISORDERLY CONDUCT"
STATUTES, "BREACH OF THE PEACE" ORDINANCES, AND THE LIKE ARE USED AS
THE INSTRUMENT TO SUPPRESS HIS PROMOTION OF CIVIL RIGHTS.  WE KNOW THAT
SUCH LAWS ARE SOMETIMES USED AS A CLUB AGAINST CIVIL RIGHTS WORKERS. 
(FN6) SENATOR DODD WHO WAS THE FLOOR MANAGER FOR THAT PART OF THE CIVIL
RIGHTS ACT OF 1964 WHICH RESTORED THE RIGHT OF APPEAL FROM AN ORDER
REMANDING A REMOVED CASE (SEC 901, 78 STAT. 266, 28 U.S.C. SEC 1447(D)
(1964 ED.))  STATED:  (FN7) 

"I THINK CASES TO BE TRIED IN STATE COURTS IN COMMUNITIES WHERE THERE
IS A PERVASIVE HOSTILITY TO CIVIL RIGHTS, AND CASES INVOLVING EFFORTS
TO USE THE COURT PROCESS AS A MEANS OF INTIMIDATION, OUGHT TO BE
REMOVABLE UNDER THIS SECTION." 

THE EXAMPLES ARE NUMEROUS.  FIRST IS THE CASE OF PROSECUTION UNDER A
LAW WHICH IS VALID ON ITS FACE BUT APPLIED DISCRIMINATORILY.  (FN8)
SECOND IS A PROSECUTION UNDER, SAY, A TRESPASS LAW FOR CONDUCT WHICH IS
PRIVILEGED UNDER FEDERAL LAW.  (FN9)  THIRD IS AN UNWARRANTED CHARGE
BROUGHT AGAINST A CIVIL RIGHTS WORKER TO INTIMIDATE HIM FOR ASSERTING
THOSE RIGHTS,  (FN10) OR TO SUPPRESS OR DISCOURAGE THEIR PROMOTION. 
THE PRESENT CHARGES ARE INITIATED BY PROSECUTORS FOR THE PURPOSE,
DEFENDANTS ALLEGE, OF DETERRING OR PUNISHING THE EXERCISE OF EQUAL
CIVIL RIGHTS.  THE COURT OF APPEALS SAID: 

"  ...  WE DO NOT READ THESE CASES (RIVES AND POWERS) AS ESTABLISHING
THAT THE DENIAL OF EQUAL CIVIL RIGHTS MUST APPEAR ON THE FACE OF THE
STATE CONSTITUTION OR STATUTE RATHER THAN IN ITS APPLICATION WHERE THE
ALLEGED DENIAL OF RIGHTS, AS HERE, HAD ITS INCEPTION IN THE ARREST AND
CHARGE.   THEY DEALT ONLY WITH THE SYSTEMATIC EXCLUSION QUESTION, A
QUESTION WHICH IN TURN GOES TO THE VERY HEART OF THE STATE JUDICIAL
PROCESS, AND FEDERALISM MAY HAVE INDICATED THAT THE REMEDY IN SUCH
SITUATIONS IN THE FIRST INSTANCE SHOULD BE LEFT TO THE STATE COURTS. 
WE WOULD NOT EXPAND THE TEACHING OF THESE CASES TO INCLUDE STATE
DENIALS OF EQUAL CIVIL RIGHTS THROUGH THE UNCONSTITUTIONAL APPLICATION
OF A STATUTE IN SITUATIONS WHICH ARE NOT A PART OF THE STATE JUDICIAL
SYSTEM BUT WHICH, ON THE CONTRARY, ARISE IN THE ADMINISTRATION OF A
STATUTE IN THE ARRESTING AND CHARGING PROCESS."  347 F.2D 679, 684. 

I AGREE WITH THAT CONCLUSION. 

THERE ARE TWO WAYS WHICH SEC 1443(1) MAY BE READ, EITHER OF WHICH
LEADS TO THE CONCLUSION THAT THESE CASES ARE COVERED BY THE "IS DENIED"
CLAUSE.  AS JUDGE SOBELOFF SAID, DISSENTING IN BAINES V. CITY OF
DANVILLE, 357 F.2D 756, 778, THE CLAUSE IN QUESTION MAY BE PARAPHRASED
IN EITHER OF THE FOLLOWING WAYS: 

"REMOVAL IS PERMISSIBLE BY: 

"(I) ANY PERSON WHO IS DENIED, OR CANNOT ENFORCE, IN THE COURTS OF
SUCH STATE A RIGHT UNDER ANY LAW  ...  . 

"OR: 

"(II) ANY PERSON WHO IS DENIED, OR CANNOT ENFORCE IN THE COURTS OF
SUCH STATE, A RIGHT UNDER ANY LAW  ...  ." 

IF THE LATTER CONSTRUCTION IS TAKEN, A RIGHT "IS DENIED" BY STATE
ACTION AT ANY TIME - BEFORE, AS WELL AS DURING, A TRIAL.  I AGREE WITH
JUDGE SOBELOFF THAT THIS READING OF THE PROVISIONS IS MORE IN KEEPING
WITH THE SPIRIT OF 1866, FOR THE REMEDIES GIVEN WERE BROAD AND
SWEEPING: 

"IF A NEGRO'S RIGHTS WERE DENIED BY THE ACTIONS OF SUCH STATE
OFFICER, THE AGGRIEVED PARTY WAS PERMITTED TO HAVE VINDICATION IN THE
FEDERAL COURT; EITHER BY FILING AN ORIGINAL CLAIM OR, IF A PROSECUTION
HAD ALREADY BEEN COMMENCED AGAINST HIM, BY REMOVING THE CASE TO THE
FEDERAL FORUM."  ID., AT 781. 

YET EVEN IF THE "IS DENIED" CLAUSE IS READ MORE RESTRICTIVELY, THE
PRESENT CASES CONSTITUTE DENIALS OF FEDERAL CIVIL RIGHTS "IN THE
COURTS" OF THE OFFENDING STATE WITHIN THE MEANING OF SEC 1443(1), FOR
THE LOCAL JUDICIAL MACHINERY IS IMPLICATED EVEN PRIOR TO ACTUAL TRIAL
BY ISSUANCE OF A WARRANT OR SUMMONS, BY COMMITMENT OF THE PRISONER, OR
BY ACCEPTING AND FILING THE INFORMATION OR INDICTMENT.  INITIATION OF
AN UNWARRANTED JUDICIAL PROCEEDING TO SUPPRESS OR PUNISH THE ASSERTION
OF FEDERAL CIVIL RIGHTS MAKES OUT A CASE OF CIVIL RIGHTS "DENIED"
WITHIN THE MEANING OF SEC 1443(1).  PROSECUTION FOR A FEDERALLY
PROTECTED ACT IS PUNISHMENT FOR THAT ACT.  THE COST OF PROCEEDING COURT
BY COURT UNTIL THE FEDERAL RIGHT IS VINDICATED IS GREAT.  RESTRAINT OF
LIBERTY MAY BE PRESENT; THE NEED TO POST BONDS MAY BE PRESENT; THE HIRE
OF A LAWYER MAY BE CONSIDERABLE; THE GANTLET OF STATE COURT PROCEEDINGS
MAY ENTAIL DESTRUCTION OF A FEDERAL RIGHT THROUGH UNSYMPATHETIC AND
ADVERSE FACT-FINDINGS THAT ARE IN EFFECT UNREVIEWABLE.  THE PRESENCE OF
AN UNRESOLVED CRIMINAL CHARGE MAY HANG OVER THE HEAD OF A DEFENDANT FOR
YEARS.    IN EARLY 1964, FOR EXAMPLE, THE SUPREME COURT OF MISSISSIPPI
AFFIRMED CONVICTIONS IN HARASSMENT PROSECUTIONS ARISING OUT OF THE MAY
1961 FREEDOM RIDES.  SEE THOMAS V. STATE, 252 MISS.  527, 160 SO. 2D
657; FARMER V. STATE, 161 SO. 2D 159; KNIGHT V. STATE, 248 MISS.  850,
161 SO. 2D 521.  MORE THAN ANOTHER YEAR WAS TO PASS BEFORE THIS COURT
REACHED AND REVERSED THOSE CONVICTIONS.  (FN11)  THOMAS V. MISSISSIPPI,
380 U.S. 524 (1965). 

CONTINUANCE OF AN ILLEGAL LOCAL PROSECUTION, LIKE THE INITIATION OF A
NEW ONE, CAN HAVE A CHILLING EFFECT ON A FEDERAL GUARANTEE OF CIVIL
RIGHTS.  WE SAID IN NAACP V. BUTTON, 371 U.S. 415, 433, RESPECTING SOME
OF THESE FEDERAL RIGHTS, THAT "THE THREAT OF SANCTIONS MAY DETER THEIR
EXERCISE ALMOST AS POTENTLY AS THE ACTUAL APPLICATION OF SANCTIONS." 
IN A FIRST AMENDMENT CONTEXT, WE SAID: "BY PERMITTING DETERMINATION OF
THE INVALIDITY OF THESE STATUTES WITHOUT REGARD TO THE PERMISSIBILITY
OF SOME REGULATION ON THE FACTS OF PARTICULAR CASES, WE HAVE, IN
EFFECT, AVOIDED MAKING VINDICATION OF FREEDOM OF EXPRESSION AWAIT THE
OUTCOME OF PROTRACTED LITIGATION.  MOREOVER, WE HAVE NOT THOUGHT THAT
THE IMPROBABILITY OF SUCCESSFUL PROSECUTION MAKES THE CASE DIFFERENT. 
THE CHILLING EFFECT UPON THE EXERCISE OF FIRST AMENDMENT RIGHTS MAY
DERIVE FROM THE FACT OF THE PROSECUTION, UNAFFECTED BY THE PROSPECTS OF
ITS SUCCESS OR FAILURE."  DOMBROWSKI V. PFISTER, 380 U.S. 479, 487. 
THE LATTER CASE WAS A SUIT TO ENJOIN A STATE PROSECUTION.  THE PRESENT
CASES ARE CLOSE KIN.  FOR REMOVAL, IF ALLOWED, IS EQUIVALENT TO A PLEA
IN BAR GRANTED BY A FEDERAL COURT TO PROTECT A FEDERAL RIGHT. 

THE THRESHOLD QUESTION - WHETHER INITIATION OF THE STATE PROSECUTION
HAS "DENIED" A FEDERAL RIGHT - IS RESOLVABLE BY THE FEDERAL COURT ON A
HEARING ON THE MOTION TO REMOVE.  AS NOTED, IT IS IN SUBSTANCE A PLEA
IN BAR TO THE PROSECUTION, A PLEA GROUNDED ON FEDERAL LAW.  IF THE
MOTION IS GRANTED, THE REMOVED CASE IS CONCLUDED AT THAT STAGE, AS A
CASE OF MISUSE OF A STATE PROSECUTION HAS BEEN MADE OUT.  CF. O'CAMPO
V. HARDISTY, 262 F.2D 621; DE BUSK V. HARVIN, 212 F.2D 143.  IN OTHER
WORDS, THE RESULT OF REMOVAL IS NOT THE TRANSFER OF THE TRIAL FROM THE
STATE TO THE FEDERAL COURTS IN THIS TYPE OF CASE.  IF AFTER HEARING IT
DOES NOT APPEAR THAT THE STATE PROSECUTION IS BEING USED TO DENY
FEDERAL RIGHTS, THE CASE IS REMANDED FOR TRIAL IN THE STATE COURTS.  28
U.S.C. SEC 1447(C) (1964 ED.).  BUT THE REMOVAL STATUTE MEANWHILE
SERVES A PROTECTIVE FUNCTION.  FILING OF THE PETITION REMOVES THE CASE
AND AUTOMATICALLY STAYS FURTHER PROCEEDINGS IN THE STATE COURT.  28
U.S.C.  SEC 1446(E) (1964 ED.).  MOREOVER, IF THE DEFENDANT IS
CONFINED, THE REMOVAL JUDGE MUST, WITHOUT AWAITING A HEARING, ISSUE A
WRIT TO TRANSFER THE PRISONER TO FEDERAL CUSTODY, 28 U.S.C. SEC 1446(F)
(1964 ED.), AND HE MAY THEN ENLARGE HIM ON BAIL. 

THE COURT HOLDS IN RACHEL THAT A HEARING MUST BE HELD AS TO WHETHER,
IN THE PARTICULAR CASE, THE TRESPASS PROSECUTION CONSTITUTES A DENIAL
OF EQUAL CIVIL RIGHTS.  INEXPLICABLY, NO SUCH HEARING IS TO BE HELD IN
THE PRESENT CASES.  FOR REASONS NOT CLEAR, A BASELESS PROSECUTION,
DESIGNED TO PUNISH AND DETER THE EXERCISE OF SUCH FEDERALLY PROTECTED
RIGHTS AS VOTING, IS NOT SEEN BY THE MAJORITY TO CONSTITUTE A DENIAL OF
EQUAL CIVIL RIGHTS.  THIS SEEMS TO ME TO OVERLOOK TWO VERY IMPORTANT
FEDERAL STATUTES.  THE FIRST, 42 U.S.C.  SEC 1981 (1964 ED.)(THE
PRESENT VERSION OF SEC 1 OF THE CIVIL RIGHTS ACT OF 1866 TO WHICH THE
ORIGINAL REMOVAL STATUTE REFERRED), PROVIDES: 

"ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES SHALL HAVE
THE SAME RIGHT IN EVERY STATE  ...  TO THE FULL AND EQUAL BENEFIT OF
ALL LAWS AND PROCEEDINGS FOR THE SECURITY OF PERSONS AND PROPERTY AS IS
ENJOYED BY WHITE CITIZENS, AND SHALL BE SUBJECT TO LIKE PUNISHMENT,
PAINS, PENALTIES, TAXES, LICENSES, AND EXACTIONS OF EVERY KIND, AND TO
NO OTHER." 

THE OTHER, SEC 11(B) OF THE VOTING RIGHTS ACT OF 1965, 79 STAT. 443,
42 U.S.C. SEC 1973IB) (1964 ED., SUPP. I), PROVIDES: 

"NO PERSON, WHETHER ACTING UNDER COLOR OF LAW OR OTHERWISE, SHALL
INTIMIDATE, THREATEN, OR COERCE, OR ATTEMPT TO INTIMIDATE, THREATEN, OR
COERCE ANY PERSON FOR VOTING OR ATTEMPTING TO VOTE, OR  ... URGING OR
AIDING ANY PERSON TO VOTE OR ATTEMPT TO VOTE  ...  ." 

THOSE SECTIONS MAKE CLEAR BEYOND DEBATE THAT, IF THE DEFENDANT'S
ALLEGATIONS ARE TRUE, THESE STATE PROSECUTIONS THEMSELVES CONSTITUTE A
DENIAL OF "A RIGHT UNDER ANY LAW PROVIDING FOR THE EQUAL CIVIL RIGHTS
OF CITIZENS."  (FN12)

                                        B. 

DEFENDANTS ALSO ALLEGE THAT THEY "CANNOT ENFORCE" IN THE COURTS OF
GREENWOOD, THE LOCALITY IN WHICH THEIR CASES ARE TO BE TRIED, THEIR
EQUAL CIVIL RIGHTS.  THIS, UNLIKE A CLAIM OF PRESENT DENIAL OF RIGHTS,
RESTS ON PREDICTION OF THE FUTURE PERFORMANCE OF THE STATE COURTS; AS
SUCH, IT ADMITTEDLY FALLS WITHIN THE RIVES-POWERS DOCTRINE.  I AGREE
WITH THE MAJORITY THAT, IN PROVIDING FOR APPEAL OF REMAND ORDERS IN
CIVIL RIGHTS REMOVAL CASES, CONGRESS MEANT FOR US TO RECONSIDER THAT
LINE OF CASES.   (FN13)  UNLIKE THE MAJORITY, HOWEVER, I BELIEVE THAT
THOSE CASES, TO THE EXTENT THAT THEY LIMIT REMOVAL TO INSTANCES WHERE
THE INABILITY TO ENFORCE EQUAL CIVIL RIGHTS SPRINGS FROM A STATE
STATUTE OR CONSTITUTIONAL PROVISION COMPELLING THE FORBIDDEN
DISCRIMINATION, SHOULD NOT BE FOLLOWED.  (FN14)  THAT CONSTRUCTION OF
SEC 1443(1) RESULTED, I THINK, FROM A MISREADING OF THE REMOVAL
PROVISIONS OF THE ACT OF 1866. 

I THINK THAT THE WORDS "CANNOT ENFORCE" SHOULD BE CONSTRUED IN THE
SPIRIT OF 1866.  SENATOR LANE SPEAKING FOR THE FIRST CIVIL RIGHTS ACT
SAID:  (FN15) 

"THE STATE COURTS ALREADY HAVE JURISDICTION OF EVERY SINGLE QUESTION
THAT WE PROPOSE TO GIVE TO THE COURTS OF THE UNITED STATES.  WHY THEN
THE NECESSITY OF PASSING THE LAW?  SIMPLY BECAUSE WE FEAR THE EXECUTION
OF THESE LAWS IF LEFT TO THE STATE COURTS.  THAT IS THE NECESSITY FOR
THIS PROVISION. 

SENATOR TRUMBULL, WHO WAS THE CHAIRMAN OF THE JUDICIARY COMMITTEE AND
WHO MANAGED THE BILL ON THE FLOOR, MANY TIMES REFLECTED THE SAME VIEW. 
HE STATED THAT THE PERSON DISCRIMINATED AGAINST "SHOULD HAVE AUTHORITY
TO GO INTO THE FEDERAL COURTS IN ALL CASES WHERE A CUSTOM PREVAILS IN A
STATE, OR WHERE THERE IS A STATUTE-LAW OF THE STATE DISCRIMINATING
AGAINST HIM."  CONG. GLOBE, 39TH CONG., 1ST SESS., 1759. 

IT WAS NOT THE EXISTENCE OF A STATUTE, HE SAID, ANY MORE THAN THE
EXISTENCE OF A CUSTOM DISCRIMINATING AGAINST THE PERSON THAT WOULD
AUTHORIZE REMOVAL, BUT WHETHER, IN EITHER CASE, IT WAS PROBABLE THAT
THE STATE COURT WOULD FAIL ADEQUATELY TO ENFORCE THE FEDERAL
GUARANTEES.  IBID. 

THE BLACK CODES WERE NOT THE ONLY TARGET OF THIS LAW.  VAGRANCY LAWS
WERE ANOTHER - LAWS FAIR ON THEIR FACE WHICH WERE ENFORCED SO AS TO
REDUCE FREE MEN TO SLAVES "IN PUNISHMENT OF CRIMES OF THE SLIGHTEST
MAGNITUDE" (ID., AT 1123), LAWS WHICH DECLARE MEN "VAGRANTS BECAUSE
THEY HAVE NO HOMES AND BECAUSE THEY HAVE NO EMPLOYMENT" IN ORDER "TO
RETAIN THEM STILL IN A STATE OF REAL SERVITUDE."  ID., AT 1151. 

IN MY VIEW, SEC 1443(1) REQUIRES THE FEDERAL COURT TO DECIDE WHETHER
THE DEFENDANT'S ALLEGATION (THAT THE STATE COURT WILL NOT FAIRLY
ENFORCE HIS EQUAL RIGHTS) IS TRUE.  (FN16)  IF THE DEFENDANT IS UNABLE
TO DEMONSTRATE THIS INABILITY TO ENFORCE HIS RIGHTS, THE CASE IS
REMANDED TO THE STATE COURT.  BUT IF THE FEDERAL COURT IS PERSUADED
THAT THE STATE COURT INDEED WILL NOT MAKE A GOOD-FAITH EFFORT TO APPLY
THE PARAMOUNT FEDERAL LAW PERTAINING TO "EQUAL CIVIL RIGHTS," THEN THE
FEDERAL COURT MUST ACCEPT THE REMOVAL AND TRY THE CASE ON THE MERITS. 

SUCH REMOVAL UNDER THE "CANNOT ENFORCE" CLAUSE WOULD OCCUR ONLY IN
THE UNUSUAL CASE.  THE COURTS OF THE STATES GENERALLY TRY
CONSCIENTIOUSLY TO APPLY THE LAW OF THE LAND.  TO BE SURE, STATE COURT
JUDGES HAVE ON OCCASION TAKEN A DIFFERENT VIEW OF THE LAW THAN THAT
WHICH THIS COURT ULTIMATELY ANNOUNCED.  BUT THESE HONEST DIFFERENCES OF
OPINION ARE NOT THE SORT OF RECALCITRANCE WHICH THE "CANNOT ENFORCE"
CLAUSE CONTEMPLATES.  WHAT CONGRESS FEARED WAS THE EXCEPTIONAL
SITUATION.  IT REALIZED THAT CONSIDERABLE DAMAGE COULD BE DONE BY EVEN
A SINGLE COURT WHICH HARBORED SUCH HOSTILITY TOWARD FEDERALLY PROTECTED
CIVIL RIGHTS AS TO RENDER IT UNABLE TO MEET ITS RESPONSIBILITIES.  THE
"CANNOT ENFORCE" CLAUSE IS DIRECTED TO THAT RARE CASE. 

EXECUTION OF THE LEGISLATIVE MANDATE CALLS FOR PARTICULAR SENSITIVITY
ON THE PART OF FEDERAL DISTRICT JUDGES; BUT THE DELICACY OF THE TASK
SURELY DOES NOT WARRANT A REFUSAL TO ATTEMPT IT.  I AM CONFIDENT THAT
THE FEDERAL DISTRICT JUDGES WOULD EXERCISE CARE AND GOOD JUDGMENT IN
PASSING ON "CANNOT ENFORCE" CLAIMS.  A DISTRICT JUDGE COULD NOT LIGHTLY
ASSUME THAT THE STATE COURT WOULD SHIRK ITS RESPONSIBILITIES, AND
SHOULD REMAND THE CASE TO THE STATE COURT UNLESS IT APPEARED BY CLEAR
AND CONVINCING EVIDENCE THAT THE ALLEGATIONS OF AN INABILITY TO ENFORCE
EQUAL CIVIL RIGHTS WERE TRUE.  CF. AMSTERDAM, CRIMINAL PROSECUTIONS
AFFECTING FEDERALLY GUARANTEED CIVIL RIGHTS:  FEDERAL REMOVAL AND
HABEAS CORPUS JURISDICTION TO ABORT STATE COURT TRIAL, 113 U. PA. L.
REV. 793, 854-863, 911-912 (1965).  A REQUIREMENT THAT DEFENDANTS
SEEKING REMOVAL DEMONSTRATE A BASIS FOR "FIRM PREDICTION" OF INABILITY
TO ENFORCE EQUAL CIVIL RIGHTS IN THE STATE COURT IS THE ONLY NECESSARY
CONSEQUENCE OF THE REVISION OF 1874 WHICH SILENTLY DELETED THE
PROVISION FOR POST-TRIAL REMOVAL FROM THE STATUTE.  IN THIS WAY, THE
LEGITIMATE INTERESTS OF FEDERALISM WHICH RIVES SOUGHT TO PROTECT WOULD
BE RESPECTED WITHOUT EMASCULATING THIS STATUTE. 

                                       III. 

THE COURT TAKES CONSIDERABLE COMFORT FROM THE AVAILABILITY TO
DEFENDANTS OF NUMEROUS OTHER FEDERAL REMEDIES, SUCH AS DIRECT REVIEW IN
THIS COURT, FEDERAL HABEAS CORPUS, CIVIL ACTIONS UNDER 42 U.S.C. SEC
1983 (1964 ED.), AND EVEN FEDERAL CRIMINAL PROSECUTIONS.  BUT IT IS
RELEVANT TO NOTE WHEN THESE ALTERNATIVE REMEDIES WERE CONFERRED.  THE
EXTENSION OF THE HABEAS CORPUS REMEDY TO STATE PRISONERS WAS ENACTED IN
1867 BY THE THIRTY-NINTH CONGRESS, THE SAME BODY WHICH ENACTED THE
REMOVAL STATUTE WE HERE CONSIDER.  14 STAT. 385.  THE CRIMINAL STATUTES
INVOLVED IN OUR RECENT DECISIONS IN UNITED STATES V. PRICE, 383 U.S.
787, AND UNITED STATES V. GUEST, 383 U.S. 745, WERE FIRST ENACTED IN
1866 AND 1870.  14 STAT. 27; 16 STAT. 141, 144.  THE CIVIL REMEDY
PROVIDED BY 42 U.S.C. SEC 1983 WAS ENACTED IN 1871.  17 STAT. 13.  IF
ANY INFERENCE IS TO BE DRAWN FROM THE EXISTENCE OF THESE COORDINATE
REMEDIES, IT IS THAT CONGRESS WAS CONCERNED, AT THE TIME THIS REMOVAL
STATUTE WAS PASSED, TO PROTECT FROM STATE COURT DENIAL THE EQUAL CIVIL
RIGHTS OF UNITED STATES CITIZENS.  RATHER THAN TAKE COMFORT FROM THE
BROAD ARRAY OF POSSIBLE REMEDIES, WE SHOULD TAKE INSTRUCTION FROM IT. 

MOREOVER, THE COURT'S MANY RHETORICAL QUESTIONS RESPECTING
IMPLEMENTATION OF REMOVAL, IF IT WERE ALLOWED, ARE ANSWERED IN
TENNESSEE V. DAVIS, 100 U.S. 257, 271-272, A CASE DECIDED THE SAME DAY
AS RIVES: 

"THE IMAGINARY DIFFICULTIES AND INCONGRUITIES SUPPOSED TO BE IN THE
WAY OF TRYING IN THE CIRCUIT COURT AN INDICTMENT FOR AN ALLEGED OFFENCE
AGAINST THE PEACE AND DIGNITY OF A STATE, IF THEY WERE REAL, WOULD BE
FOR THE CONSIDERATION OF CONGRESS.  BUT THEY ARE UNREAL.  WHILE IT IS
TRUE THERE IS NEITHER IN SECT.  643, NOR IN THE ACT OF WHICH IT IS A RE
ENACTMENT, ANY MODE OF PROCEDURE IN THE TRIAL OF A REMOVED CASE
PRESCRIBED, EXCEPT THAT IT IS ORDERED THAT THE CAUSE WHEN REMOVED SHALL
PROCEED AS A CAUSE ORIGINALLY COMMENCED IN THAT COURT, YET THE MODE OF
TRIAL IS SUFFICIENTLY OBVIOUS.  THE CIRCUIT COURTS OF THE UNITED STATES
HAVE ALL THE APPLIANCES WHICH ARE NEEDED FOR THE TRIAL OF ANY CRIMINAL
CASE.  THEY ADOPT AND APPLY THE LAWS OF THE STATE IN CIVIL CASES, AND
THERE IS NO MORE DIFFICULTY IN ADMINISTERING THE STATE'S CRIMINAL LAW. 
THEY ARE NOT FOREIGN COURTS.  THE CONSTITUTION HAS MADE THEM COURTS
WITHIN THE STATES TO ADMINISTER THE LAWS OF THE STATES IN CERTAIN
CASES; AND, SO LONG AS THEY KEEP WITHIN THE JURISDICTION ASSIGNED TO
THEM, THEIR GENERAL POWERS ARE ADEQUATE TO THE TRIAL OF ANY CASE.  THE
SUPPOSED ANOMALY OF PROSECUTING OFFENDERS AGAINST THE PEACE AND DIGNITY
OF A STATE, IN TRIBUNALS OF THE GENERAL GOVERNMENT, GROWS ENTIRELY OUT
OF THE DIVISION OF POWERS BETWEEN THAT GOVERNMENT AND THE GOVERNMENT OF
A STATE; THAT IS, A DIVISION OF SOVEREIGNTY OVER CERTAIN MATTERS.  WHEN
THIS IS UNDERSTOOD (AND IT IS TIME IT SHOULD BE), IT WILL NOT APPEAR
STRANGE THAT, EVEN IN CASES OF CRIMINAL PROSECUTIONS FOR ALLEGED
OFFENCES AGAINST A STATE, IN WHICH ARISES A DEFENCE UNDER UNITED STATES
LAW, THE GENERAL GOVERNMENT SHOULD TAKE COGNIZANCE OF THE CASE AND TRY
IT IN ITS OWN COURTS, ACCORDING TO ITS OWN FORMS OF PROCEEDING." 

                            IV. 

THE FEDERAL COURT IN A REMOVAL CASE PLAINLY MUST ACT WITH RESTRAINT. 
BUT TO DENY RELIEF IN THE CASES NOW BEFORE US IS, IN VIEW OF THE
ALLEGATIONS MADE, TO AGGRAVATE A WRONG BY COMPELLING THESE DEFENDANTS
TO SUFFER THE RISK OF AN UNWARRANTED TRIAL AND BY ALLOWING THEM TO BE
HELD UNDER IMPROPER CHARGES AND IN PRISON, IF THE STATE DESIRES, FOR AN
EXTENDED PERIOD PENDING TRIAL.  THE RISK THAT THE STATE COURTS WILL NOT
PROMPTLY DISMISS THE PROSECUTIONS WAS THE CONGRESSIONAL FEAR.  THE
COURT DEFEATS THAT PURPOSE BY GIVING A NARROW, CRAMPED MEANING TO SEC
1443(1).  THESE DEFENDANTS' FEDERAL CIVIL RIGHTS MAY, OF COURSE,
ULTIMATELY BE VINDICATED IF THEY PERSEVERE, LIVE LONG ENOUGH, AND HAVE
THE PATIENCE AND THE FUNDS TO CARRY THEIR CASES FOR SOME YEARS THROUGH
THE STATE COURTS TO THIS COURT.  BUT IT WAS PRECISELY THAT BURDEN THAT
CONGRESS UNDERTOOK TO TAKE OFF THE BACKS OF THIS PERSECUTED MINORITY
AND ALL WHO ESPOUSE THE CAUSE OF THEIR EQUALITY.    FN1  ACT OF APRIL
9, 1866, 14 STAT. 27.  THERE WERE A HANDFUL OF OTHER REMOVAL STATUTES
PASSED IN THE INTERIM.  SEE, E.G., ACT OF FEBRUARY 4, 1815, SEC 8, 3
STAT. 198 (REMOVAL OF CIVIL AND CRIMINAL ACTIONS AGAINST FEDERAL
CUSTOMS OFFICERS FOR OFFICIAL ACTS); ACT OF MARCH 2, 1833, SEC 3, 4
STAT. 633 (REMOVAL OF CIVIL AND CRIMINAL ACTIONS AGAINST FEDERAL
OFFICERS ON ACCOUNT OF ACTS DONE UNDER THE REVENUE LAWS), SEE TENNESSEE
V. DAVIS, 100 U.S. 257; ACT OF MARCH 3, 1863, SEC 5, 12 STAT. 756
(REMOVAL OF CIVIL AND CRIMINAL ACTIONS AGAINST FEDERAL OFFICERS - CIVIL
OR MILITARY - FOR ACTS DONE DURING THE EXISTENCE OF THE CIVIL WAR UNDER
COLOR OF FEDERAL AUTHORITY). 

FN2  MADISON, WHOSE VIEWS ON THE ESTABLISHMENT OF THE FEDERAL COURT
SYSTEM PREVAILED, SAID IN THE DEBATES: 

"UNLESS INFERIOR TRIBUNALS WERE DISPERSED THROUGHOUT THE REPUBLIC
...  APPEALS WOULD BE MULTIPLIED TO A MOST OPPRESSIVE DEGREE; THAT,
BESIDES, AN APPEAL WOULD NOT IN MANY CASES BE A REMEDY.  WHAT WAS TO BE
DONE AFTER IMPROPER VERDICTS, IN STATE TRIBUNALS, OBTAINED UNDER THE
BIASED DIRECTIONS OF A DEPENDENT JUDGE, OR THE LOCAL PREJUDICES OF AN
UNDIRECTED JURY?  TO REMAND THE CAUSE FOR A NEW TRIAL WOULD ANSWER NO
PURPOSE  ...  .  AN EFFECTIVE JUDICIARY ESTABLISHMENT, COMMENSURATE TO
THE LEGISLATIVE AUTHORITY, WAS ESSENTIAL.  A GOVERNMENT WITHOUT A
PROPER EXECUTIVE AND JUDICIARY WOULD BE THE MERE TRUNK OF A BODY,
WITHOUT ARMS OR LEGS TO ACT OR MOVE."  5 ELLIOT'S DEBATES 159 (1876). 

HIS VICTORY "DESTROYED THE ABILITY OF THE STATES TO SABOTAGE THE
UNION THROUGH THEIR JUDICIARY SYSTEMS."  3 BRANT, JAMES MADISON 42
(1950).  CF. ENGLAND V. MEDICAL EXAMINERS, 375 U.S. 411, 416-417. 

FN3  28 U.S.C. SEC 1443 (1964 ED.)  PROVIDES: 

"ANY OF THE FOLLOWING CIVIL ACTIONS OR CRIMINAL PROSECUTIONS,
COMMENCED IN A STATE COURT MAY BE REMOVED BY THE DEFENDANT TO THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT AND DIVISION
EMBRACING THE PLACE WHEREIN IT IS PENDING: 

"(1)  AGAINST ANY PERSON WHO IS DENIED OR CANNOT ENFORCE IN THE
COURTS OF SUCH STATE A RIGHT UNDER ANY LAW PROVIDING FOR THE EQUAL
CIVIL RIGHTS OF CITIZENS OF THE UNITED STATES, OR OF ALL PERSONS WITHIN
THE JURISDICTION THEREOF: 

"(2)  FOR ANY ACT UNDER COLOR OF AUTHORITY DERIVED FROM ANY LAW
PROVIDING FOR EQUAL RIGHTS, OR FOR REFUSING TO DO ANY ACT ON THE GROUND
THAT IT WOULD BE INCONSISTENT WITH SUCH LAW." 

FN4  WHATEVER THE FULL REACH OF THE STATUTORY LANGUAGE "ANY LAW
PROVIDING FOR THE EQUAL CIVIL RIGHTS OF CITIZENS," THE WRONGS OF WHICH
THESE DEFENDANTS AND THOSE IN GEORGIA V. RACHEL, ANTE, P. 780, COMPLAIN
(WITH THE POSSIBLE EXCEPTION OF PURE FIRST AMENDMENT CLAIMS) ARE WELL
WITHIN ITS COVERAGE.  SEE, E.G., 42 U.S.C. SECS 1971, 1973IB) (1964 ED.
& SUPP. I)(STATUTES ADOPTED UNDER CONGRESS' POWER TO ASSURE EQUAL
ACCESS TO THE VOTE TO ALL CITIZENS, REGARDLESS OF "RACE, COLOR, OR
PREVIOUS CONDITION OF SERVITUDE," U.S. CONST., AMENDMENT XV); 42 U.S.C.
SEC 1981 (1964 ED.)(GUARANTEEING ALL PERSONS THE RIGHT NOT TO BE
SUBJECTED TO "PUNISHMENT, PAINS, PENALTIES  ... OR EXACTIONS" NOT
SUFFERED IN LIKE CIRCUMSTANCES BY "WHITE CITIZENS"); 42 U.S.C. SECS
2000A, 2000A-2 (1964 ED.)  (DISCUSSED IN GEORGIA V. RACHEL, SUPRA).  I
DOUBT THAT ANY MEANINGFUL DISTINCTION COULD BE DRAWN FOR REMOVAL
PURPOSES BETWEEN, FOR EXAMPLE, RIGHTS SECURED BY 42 U.S.C. SEC 1981 AND
THOSE GUARANTEED BY THE EQUAL PROTECTION CLAUSE, WHICH LARGELY
REITERATED SEC 1981 IN CONSTITUTIONAL TERMS.  BUT IT IS UNNECESSARY, ON
MY VIEW OF THESE CASES, TO SETTLE THIS QUESTION.  I THEREFORE DO NOT
REACH THE HIGHLY QUESTIONABLE PROPOSITIONS RELIED UPON BY THE MAJORITY
IN RESTRICTING THE SCOPE OF THE RIGHTS WHICH SEC 1443(1) ENCOMPASSES. 

FN5  STRICTLY SPEAKING, THE COURT IN VIRGINIA V. RIVES, SUPRA, DREW
NO DISTINCTION BETWEEN THE "IS DENIED" AND THE "CANNOT ENFORCE"
CLAUSES.  IT IS CLEAR, IF ONLY IN RETROSPECT, THAT THE COURT WAS THERE
CONCERNED SOLELY WITH A CLAIM OF AN ANTICIPATED INABILITY TO ENFORCE
EQUAL CIVIL RIGHTS BECAUSE OF THE STATE COURT'S TOLERANCE OF THE
EXCLUSION OF NEGROES FROM THE JURY.  THE COURT HELD THAT PRETRIAL
REMOVAL COULD NOT REACH "A JUDICIAL (AS OPPOSED TO A LEGISLATIVE)
INFRACTION OF THE CONSTITUTIONAL INHIBITIONS, AFTER TRIAL OR FINAL
HEARING HAS COMMENCED."  100 U.S., AT 319.  FAIRLY READ, RIVES APPLIES
ONLY TO CLAIMS FOR REMOVAL ARISING UNDER THE "CANNOT ENFORCE" CLAUSE OF
SEC 1443(1). 

FN6  SEE, E.G., EDWARDS V. SOUTH CAROLINA, 372 U.S. 229; HENRY V.
CITY OF ROCK HILL, 376 U.S. 776 (PER CURIAM); COX V. LOUISIANA, 379
U.S. 536; SHUTTLESWORTH V. BIRMINGHAM, 382 U.S. 87. 

FN7  110 CONG. REC. 6955 (1964). 

FN8  ADMINISTRATION OF A LAW WHICH APPEARS FAIR ON ITS FACE VIOLATES
THE EQUAL PROTECTION CLAUSE IF DONE IN A WAY WHICH IS RACIALLY
DISCRIMINATORY (YICK WO V. HOPKINS, 118 U.S. 356) OR WHICH PREFERS THE
PROPONENTS OF CERTAIN IDEAS OVER OTHERS (NIEMOTKO V. MARYLAND, 340 U.S.
268, 272; COX V. LOUISIANA, SUPRA, AT 553-558; AND SEE ID., AT 580-581
(BLACK, J., CONCURRING)).  BOTH STANDARDS COMBINE IN THE CASE OF
DISCRIMINATORY ENFORCEMENT DIRECTED AGAINST CIVIL RIGHTS
DEMONSTRATORS.  AND SEE 42 U.S.C. SEC 1981 (1964 ED.). 

FN9  SEE, E.G., HAMM V. CITY OF ROCK HILL, 379 U.S. 306, 310; GEORGIA
V. RACHEL, ANTE. 

FN10  CF. AUTHORITIES CITED, NOTE 8, SUPRA.  VARIOUS FEDERAL STATUTES
MAKE IT A CRIME TO INTERFERE WITH OR PUNISH THE EXERCISE OF FEDERALLY
PROTECTED RIGHTS.  SEE, E.G., SEC 11(B) OF THE VOTING RIGHTS ACT OF
1965, 79 STAT. 443, 42 U.S.C. SEC 1973IB) (1964 ED., SUPP. I); SEC 203
OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 244, 42 U.S.C. SEC 2000A-2
(1964 ED.).  SEE INFRA, AT 847-848 AND NOTE 12. 

FN11  AND SEE EDWARDS V. SOUTH CAROLINA, 372 U.S. 229 (1963)(NEARLY
TWO YEARS FROM ARREST TO OUR REVERSAL OF CONVICTIONS); FIELDS V. SOUTH
CAROLINA, 375 U.S. 44 (1963)(THREE AND A HALF YEARS FROM ARREST TO OUR
REVERSAL OF CONVICTIONS); HENRY V. CITY OF ROCK HILL, 376 U.S. 776
(1964)(MORE THAN FOUR YEARS FROM ARREST TO OUR REVERSAL OF
CONVICTIONS). 

FN12  COMPARE THE LANGUAGE OF SEC 203 OF THE CIVIL RIGHTS ACT OF
1964, 78 STAT. 244, 42 U.S.C. SEC 2000A-2 (1964 ED.), RELIED UPON BY
THE COURT IN RACHEL AS CREATING A RIGHT TO BE FREE FROM A WRONGFUL
PROSECUTION:  "NO PERSON SHALL  ...  (B) INTIMIDATE, THREATEN, OR
COERCE, OR ATTEMPT TO INTIMIDATE, THREATEN, OR COERCE ANY PERSON WITH
THE PURPOSE OF INTERFERING WITH ANY RIGHT OR PRIVILEGE SECURED BY THE
PUBLIC ACCOMMODATIONS SECTIONS, OR (C) PUNISH OR ATTEMPT TO PUNISH ANY
PERSON FOR EXERCISING OR ATTEMPTING TO EXERCISE ANY RIGHT OR PRIVILEGE
SECURED BY THE PUBLIC ACCOMMODATIONS SECTIONS." 

THE MAJORITY APPEARS TO DISTINGUISH THIS CASE FROM RACHEL ON THE
GROUND THAT IN THE LATTER CASE, THE DEFENDANTS WERE "AUTHORIZED" BY THE
CIVIL RIGHTS ACT OF 1964 TO ENTER A RESTAURANT AND RECEIVE EQUAL
ACCOMMODATION.  IN MY JUDGMENT, THAT IS A DISTINCTION WITHOUT SUBSTANCE
FOR PURPOSES OF SEC 1443(1).  A PERSON "IS DENIED" RIGHTS WHICH SEC
1443(1) PROTECTS WHEN THE VERY PROSECUTION OF HIM IS IN VIOLATION OF A
FEDERAL STATUTE ASSURING EQUAL CIVIL RIGHTS.  THAT IS TRUE WHETHER THE
ACT FOR WHICH HE IS BEING PROSECUTED IS SPECIFICALLY AUTHORIZED BY
STATUTE OR, RATHER, IS MERELY ONE OF THE INNUMERABLE ACTS WHICH MEMBERS
OF THE COMMUNITY DAILY PERFORM WITHOUT EITHER STATUTORY AUTHORIZATION
OR POLICE INTERFERENCE. 

IT MUST BE APPARENT THAT THE ACTION BY THE REVISERS OF 1874 IN
ELIMINATING THE PREVIOUS PROVISION FOR POST-TRIAL REMOVAL IS IRRELEVANT
TO INTERPRETATION OF THE "IS DENIED" CLAUSE.  EVEN ON THE MAJORITY'S
OWN INTERPRETATION OF THE STATUTE, WHERE "ANY PROCEEDINGS IN THE COURTS
OF THE STATE WILL CONSTITUTE A DENIAL" OF RIGHTS SECURED BY A FEDERAL
STATUTE ASSURING EQUAL CIVIL RIGHTS, AN APPROPRIATE BASIS WILL HAVE
BEEN SHOWN FOR A "FIRM PREDICTION" OF SUCH DENIAL.  GEORGIA V. RACHEL,
ANTE, AT 804. 

FN13  THE IRRATIONALITY OF THE RIVES-POWERS REQUIREMENT THAT REMOVAL
BE PREDICATED ON A FACIALLY UNCONSTITUTIONAL STATUTE WAS KNOWN TO
CONGRESS WHEN IT AMENDED THE LAW TO MAKE POSSIBLE APPEAL FROM AN ORDER
REMANDING THE CASE TO THE STATE COURT.  AS THEN-SENATOR HUMPHREY, FLOOR
MANAGER OF THE CIVIL RIGHTS ACT OF 1964, PUT IT:  "THE REAL PROBLEM AT
PRESENT IS NOT A STATUTE WHICH IS ON ITS FACE UNCONSTITUTIONAL; IT IS
THE UNCONSTITUTIONAL APPLICATION OF A STATUTE.  WHEN A STATE STATUTE
HAS BEEN UNCONSTITUTIONALLY APPLIED, MOST FEDERAL DISTRICT JUDGES
PRESENTLY BELIEVE THEMSELVES BOUND BY THESE OLD DECISIONS  ...  .
ENACTMENT OF THE APPEAL PROVISION WILL GIVE THE APPELLATE COURTS AN
OPPORTUNITY TO REEXAMINE THIS QUESTION."  110 CONG. REC. 6551 (1964). 
SIMILAR INVITATIONS TO OVERRULE THE RIVES-POWERS LINE OF CASES WERE
UTTERED BY SENATOR DODD (110 CONG. REC. 6955-6956) AND CONGRESSMAN
KASTENMEIER (110 CONG. REC. 2770) AND IT IS FAIR TO ASSUME THAT
CONGRESS DID NOT REINSTATE THE RIGHT TO APPEAL FROM A REMAND ORDER
MERELY TO ALLOW CIVIL RIGHTS LITIGANTS THE BRUTAL LUXURY OF AN APPEAL,
THE INEVITABLE OUTCOME OF WHICH WOULD BE AN AFFIRMANCE. 

FN14  THE MAJORITY'S VIEW OF THE RIVES-POWERS DOCTRINE IS NONE TOO
CLEAR.  IN RACHEL, IT DISPENSES WITH THE BROAD STATEMENT OF THAT
DOCTRINE THAT THERE BE A FACIALLY UNCONSTITUTIONAL STATE STATUTE OR
CONSTITUTIONAL PROVISION, FOR IT PERMITS REMOVAL ON A SHOWING THAT A
STATE STATUTE IS UNCONSTITUTIONAL ONLY IN APPLICATION TO THOSE SEEKING
RELIEF.  THE COURT EXPLAINS THIS BY RELIANCE ON LANGUAGE IN RIVES WHICH
THE COURT THOUGHT WARRANTED THE CONCLUSION THAT IN CERTAIN
CIRCUMSTANCES, REMOVAL MIGHT BE JUSTIFIED EVEN IN THE ABSENCE OF A
DISCRIMINATORY STATE STATUTE.  IN THIS CASE, HOWEVER, THE MAJORITY
APPEARS TO ADOPT THE WHOLE SWEEP OF THE RIVES-POWERS DOCTRINE, AND
MAKES THE ABSENCE OF FACIALLY UNCONSTITUTIONAL STATE ACTION FATAL TO
THE PETITION FOR REMOVAL. 

FN15  CONG. GLOBE, 39TH CONG., 1ST SESS., 602. 

FN16  IN SUPPORT OF ITS CONTRARY RESULT, THE COURT CITES THE NUMBER
OF REMOVAL PETITIONS FILED IN THE YEAR 1965.  I AM UNAWARE OF ANY
RELEVANCE THIS FIGURE HAS IN THE INTERPRETATION OF A STATUTE ENACTED IN
1866.  INDEED, IF ANY CONTEMPORARY INCIDENTS ARE TO PROVIDE GUIDANCE, I
SHOULD THINK WE WOULD BE AIDED BY THE DEBATES AND VOTES IN CONGRESS ON
THE CIVIL RIGHTS ACT OF 1964.  OPPONENTS OF THE PROVISION ALLOWING
APPEALS FROM A REMAND ORDER WARNED OF POSSIBLE DILATORY TACTICS AND
DISRUPTIONS OF THE JUDICIAL PROCESSES - STATE AND FEDERAL - WHICH MIGHT
RESULT; THIS WAS VIRTUALLY THE ONLY EXPRESSED BASIS OF OPPOSITION TO
THIS PROPOSED AMENDMENT.  SEE, E.G., H.R. REP. NO. 914, 88TH CONG., 1ST
SESS., 59, 67, 111-112 (MINORITY REPORTS); 110 CONG. REC. 2769-2784
(PASSIM)(HOUSE); ID., AT 13468, 13879 (SENATE).  PROPOSALS TO DELETE
THE APPEAL PROVISION WERE DECISIVELY REJECTED, 118-76 IN THE HOUSE
(ID., AT 2784) AND IN THE SENATE ON TWO OCCASIONS, 51-31 (ID., AT
13468) AND 66-25 (ID., AT 13879). 
..END :




















DENNIS V. UNITED STATES 384 U.S. 855 


NO. 502.  ARGUED APRIL 20, 1966.  - DECIDED JUNE 20, 1966.  - 346 F.2D
10, REVERSED AND REMANDED. 


PETITIONERS WERE INDICTED IN 1956 UNDER 18 U.S. SEC 371 FOR CONSPIRING
FRAUDULENTLY TO OBTAIN THE SERVICES OF THE NATIONAL LABOR RELATIONS
BOARD (NLRB) ON BEHALF OF THE UNION OF WHICH THEY WERE OFFICERS OR
MEMBERS BY FILING FALSE AFFIDAVITS IN PURPORTED SATISFACTION OF THE
REQUIREMENTS OF SEC 9(H) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED.  SECTION 9(H), LATER REPEALED, PROVIDED THAT A UNION COULD NOT
SECURE NLRB SERVICES UNLESS IT HAD FILED WITH THE NLRB SO-CALLED NON
COMMUNIST AFFIDAVITS OF EACH UNION OFFICER.  THE GOVERNMENT ALLEGED
THAT PURSUANT TO A CONSPIRACY FOUR OF THE PETITIONERS, UNION OFFICIALS
WHO PURPORTED TO RESIGN FROM THE COMMUNIST PARTY BUT IN REALITY
RETAINED THEIR PARTY AFFILIATIONS, FILED THE REQUIRED AFFIDAVITS DURING
1949-1955, ENABLING THE UNION TO USE THE NLRB.  PETITIONERS WERE
CONVICTED, BUT THE COURT OF APPEALS, WHILE SUSTAINING THE INDICTMENT,
REVERSED ON THE GROUND THAT PREJUDICIAL HEARSAY EVIDENCE HAD BEEN
ADMITTED.  ON RETRIAL PETITIONERS WERE AGAIN CONVICTED AND THE COURT OF
APPEALS AFFIRMED.  CERTIORARI WAS GRANTED, LIMITED TO THE FOLLOWING
QUESTIONS:  WHETHER THE INDICTMENT STATED THE OFFENSE OF CONSPIRACY TO
DEFRAUD THE UNITED STATES; WHETHER SEC 9(H) IS CONSTITUTIONAL; AND
WHETHER THE TRIAL COURT ERRED IN DENYING PETITIONERS' MOTION FOR
PRODUCTION TO THE DEFENSE OF GRAND JURY TESTIMONY OF PROSECUTION
WITNESSES, OR ALTERNATIVELY, FOR IN CAMERA INSPECTION OF THE GRAND JURY
TESTIMONY.  HELD: 

1.  THE INDICTMENT PROPERLY CHARGED A CONSPIRACY TO DEFRAUD THE
UNITED STATES UNDER 18 U.S.C. SEC 371.  PP. 859-864. 

(A)  THE INDICTMENT CHARGED CONCERT OF ACTION AND SPECIFIED THE
CULPABLE ROLE OF EACH PETITIONER.  P. 860. 

(B)  THE LANGUAGE OF SEC 371 REACHES ANY CONSPIRACY TO IMPAIR,
OBSTRUCT OR DEFEAT THE FUNCTIONING OF A GOVERNMENT AGENCY.  P. 861. 

(C)  CONGRESS REGARDED THE FILING OF TRUTHFUL AFFIDAVITS, NOT THE MERE
FILING OF AFFIDAVITS, AS ESSENTIAL TO THE PRIVILEGE OF USING NLRB
SERVICES.  P. 862. 

(D)  ALTHOUGH THE STATUTORY OFFENSE OF FILING A FALSE STATEMENT WAS
PART OF THE CONSPIRACY ALLEGED AGAINST PETITIONERS, THE ENTIRE COURSE
OF PETITIONERS' ALLEGED CONDUCT CONSTITUTED A CONSPIRACY TO DEFRAUD THE
UNITED STATES.  BRIDGES V. UNITED STATES, 346 U.S. 209, DISTINGUISHED. 
PP. 862-863. 

2.  THE CLAIM OF UNCONSTITUTIONALITY OF THE STATUTE WILL NOT BE HEARD
AT THE BEHEST OF THE PETITIONERS WHO HAVE BEEN INDICTED FOR CONSPIRACY
BY MEANS OF FALSEHOOD AND DECEIT TO CIRCUMVENT THE LAW WHICH THEY HERE
SEEK TO CHALLENGE.  KAY V. UNITED STATES, 303 U.S. 1.  PP. 864-867. 

3.  PETITIONERS WERE ENTITLED TO EXAMINE THE GRAND JURY MINUTES
RELATING TO TRIAL TESTIMONY OF THE PROSECUTION WITNESSES, AND TO DO SO
WHILE THE WITNESSES WERE AVAILABLE FOR CROSS-EXAMINATION.  PP. 868
875. 

(A)  IN CASES OF "PARTICULARIZED NEED" DEFENSE COUNSEL MAY HAVE
ACCESS TO RELEVANT PORTIONS OF GRAND JURY TESTIMONY OF A TRIAL
WITNESS.  PITTSBURGH PLATE GLASS CO. V. UNITED STATES, 360 U.S. 395. 
P. 870. 

(B)  PETITIONERS HAVE MADE A SUBSTANTIAL SHOWING OF "PARTICULARIZED
NEED," AND THE GOVERNMENT CONCEDES THAT THE IMPORTANCE OF PRESERVING
SECRECY OF THE GRAND JURY MINUTES HERE IS MINIMAL.  PP. 871-874. 

(C)  WHILE THE PRACTICE OF IN CAMERA INSPECTION OF THE GRAND JURY
MINUTES BY THE TRIAL JUDGE, FOLLOWED BY PRODUCTION TO DEFENSE COUNSEL
IF THE JUDGE FINDS INCONSISTENCIES, MAY BE USEFUL IN ENABLING THE JUDGE
TO RULE ON A MOTION FOR PRODUCTION OF GRAND JURY TESTIMONY, IT IS NOT
SUFFICIENT TO PROTECT A DEFENDANT'S RIGHTS WHERE HE HAS DEMONSTRATED A
"PARTICULARIZED NEED."  P. 874. 

(D)  THE DETERMINATION OF WHAT MAY BE USEFUL TO THE DEFENSE CAN
EFFECTIVELY BE MADE ONLY BY COUNSEL.  THE TRIAL JUDGE'S FUNCTION IN
THIS RESPECT IS LIMITED TO DECIDING WHETHER A CASE HAS BEEN MADE FOR
PRODUCTION AND TO SUPERVISE THE PROCESS.  P. 875. 

DENNIS ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THE SIX PETITIONERS AND EIGHT OTHERS WERE INDICTED IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO ON A CHARGE OF
VIOLATING THE GENERAL CONSPIRACY STATUTE, 18 U.S.C. SEC 371 (1964
ED.).  (FN1)  THE SINGLE-COUNT INDICTMENT ALLEGED A CONSPIRACY
FRAUDULENTLY TO OBTAIN THE SERVICES OF THE NATIONAL LABOR RELATIONS
BOARD ON BEHALF OF THE INTERNATIONAL UNION OF MINE, MILL AND SMELTER
WORKERS, BY FILING FALSE AFFIDAVITS IN PURPORTED SATISFACTION OF THE
REQUIREMENTS OF SEC 9(H) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE TAFT-HARTLEY ACT, 61 STAT. 146. 

UNIONS COULD NOT SECURE LABOR BOARD INVESTIGATION OF EMPLOYEE
REPRESENTATION OR THE ISSUANCE OF A COMPLAINT UNLESS THERE WAS ON FILE
WITH THE BOARD SO-CALLED NON-COMMUNIST AFFIDAVITS OF EACH OFFICER OF
THE UNION AND ITS PARENT ORGANIZATION.  THE STATUTE REQUIRED THAT THESE
AFFIDAVITS ATTEST THAT THE OFFICER 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." 

FOUR OF THE SIX PETITIONERS - DENNIS, DICHTER, TRAVIS AND WILSON -
WERE OFFICERS OF THE UNION.  EACH IS ALLEGED TO HAVE FILED FALSE NON
COMMUNIST AFFIDAVITS.  PETITIONERS SANDERSON AND SKINNER WERE, AT
RELEVANT TIMES, UNION MEMBERS BUT NOT OFFICERS.  THEY ARE CHARGED WITH
PARTICIPATION IN THE CONSPIRACY.  ALL WERE ALLEGED TO BE "MEMBERS OF
AND AFFILIATED WITH THE COMMUNIST PARTY." 

THE INDICTMENT WAS RETURNED IN 1956.  AT THE FIRST TRIAL, PETITIONERS
AND OTHERS WERE CONVICTED.  ON APPEAL, THE COURT OF APPEALS FOR THE
TENTH CIRCUIT SUSTAINED THE VALIDITY OF THE INDICTMENT, BUT REVERSED
THE JUDGMENTS ON THE GROUND THAT PREJUDICIAL HEARSAY EVIDENCE HAD BEEN
ADMITTED IN EVIDENCE.  302 F.2D 5. 

ON RETRIAL, THE PETITIONERS WERE AGAIN CONVICTED AND EACH WAS
SENTENCED TO THREE YEARS' IMPRISONMENT AND FINED $2,000.  THIS TIME,
THE COURT OF APPEALS AFFIRMED.  346 F.2D 10.  WE GRANTED CERTIORARI
(382 U.S. 915) LIMITED TO THREE QUESTIONS: 

"1.  WHETHER THE INDICTMENT STATES THE OFFENSE OF CONSPIRACY TO
DEFRAUD THE UNITED STATES: 

"2.  WHETHER, IN THE COMPARATIVE LIGHT OF AMERICAN COMMUNICATIONS
ASSN. V. DOUDS, 339 U.S. 382, AND UNITED STATES V. ARCHIE BROWN, 381
U.S. 437, SECTION 9(H) OF THE TAFT-HARTLEY ACT IS CONSTITUTIONAL: 

"3.  WHETHER THE TRIAL COURT ERRED IN DENYING PETITIONERS' MOTIONS
FOR THE PRODUCTION, TO THE DEFENSE OR THE COURT, OF GRAND JURY
TESTIMONY OF PROSECUTION WITNESSES." 

ESSENTIALLY, THE GOVERNMENT'S CASE IS THAT, PRIOR TO JUNE 1949, THE
UNION AND THE COMMUNIST PARTY OPPOSED COMPLAINCE WITH SEC 9(H); THAT IN
1949 THE COMMUNIST PARTY AND THE UNION, AS A CONSEQUENCE OF DISCUSSIONS
PARTICIPATED IN BY PETITIONERS AND OTHERS, DETERMINED THAT PRESERVATION
OF THE PARTY'S ALLEGEDLY DOMINATING POSITION IN THE UNION, AND THE
UNION'S WELFARE ITSELF, REQUIRED THAT THE UNION OFFICIALS TAKE STEPS TO
SECURE THE BOARD'S SERVICES FOR THE UNION; AND THAT, IN ORDER TO
ACCOMPLISH THIS PURPOSE, THE UNION'S OFFICERS WERE NOMINALLY TO RESIGN
FROM THE COMMUNIST PARTY AND TO FILE THE NON-COMMUNIST AFFIDAVITS
REQUIRED BY SEC 9(H).  PURSUANT TO THIS PLAN, IT IS ALLEGED, THE UNION
LEADERSHIP VOTED TO COMPLY WITH SEC 9(H).  THOSE OFFICERS WHO WERE
PARTY MEMBERS, INCLUDING FOUR OF THE PETITIONERS HEREIN, PURPORTED TO
RESIGN FROM THE PARTY.  (FN3)  THEY THEN PROCEEDED, AT VARIOUS DATES
BETWEEN AUGUST 1949 AND FEBRUARY 1955, TO FILE WITH THE LABOR BOARD THE
REQUIRED NON-COMMUNIST AFFIDAVITS.  THIS ACTION, IT IS CONTENDED, WAS
CYNICAL AND FRAUDULENT, AND PETITIONERS' AFFIDAVITS WERE FALSE.  IN
REALITY, IT IS CLAIMED, PETITIONERS' COMMUNIST PARTY AFFILIATIONS
REMAINED UNAFFECTED AS DID THE PARTY'S DOMINATION OF THE UNION'S
AFFAIRS.  THE UNION THEREAFTER PROCEEDED, ON SEVERAL OCCASIONS, TO
UTILIZE THE BOARD'S SERVICES, A PRIVILEGE WHICH IT HAD OBTAINED AS A
RESULT OF THESE ASSERTEDLY FRAUDULENT ACTS. 

                              I. 

WE FIRST DISCUSS THE QUESTION, CONSIDERED BOTH IN THE DISTRICT COURT
AND IN THE COURT OF APPEALS, (FN4) WHETHER THE INDICTMENT PROPERLY
CHARGED A CONSPIRACY TO DEFRAUD THE UNITED STATES UNDER 18 U.S.C. SEC
371.  WE AGREE THAT INDICTMENTS UNDER THE BROAD LANGUAGE OF THE GENERAL
CONSPIRACY STATUTE MUST BE SCRUTINIZED CAREFULLY AS TO EACH OF THE
CHARGED DEFENDANTS BECAUSE OF THE POSSIBILITY, INHERENT IN A CRIMINAL
CONSPIRACY CHARGE, THAT ITS WIDE NET MAY ENSNARE THE INNOCENT AS WELL
AS THE CULPABLE.  SEE KRULEWITCH V. UNITED STATES, 336 U.S. 440, 445
458 (CONCURRING OPINION); UNITED STATES V. BUFALINO, 285 F.2D 408, 417
418 (C.A.2D CIR. 1960).  BUT IN THE PRESENT CASE WE CONCLUDE THAT THE
INDICTMENT FOR CONSPIRACY WAS PROPER AS TO EACH OF THE PETITIONERS. 

FOUR OF THE PETITIONERS - THOSE WHO FILED THE AFFIDAVITS ALLEGED TO
BE FALSE - PRESUMABLY COULD HAVE BEEN INDICTED FOR THE SUBSTANTIVE
OFFENSE OF MAKING FALSE STATEMENTS AS TO A "MATTER WITHIN THE
JURISDICTION OF" THE BOARD, A VIOLATION OF 18 U.S.C. SEC 1001 (1964
ED.).  BUT THE ESSENCE OF THEIR ALLEGED CONDUCT WAS NOT MERELY THE
INDIVIDUAL FILING OF FALSE AFFIDAVITS.  IT WAS ALSO THE ALLEGED CONCERT
OF ACTION - THE COMMON DECISION AND COMMON ACTIVITY FOR A COMMON
PURPOSE.  THE CONSPIRACY WAS NOT PERIPHERAL OR INCIDENTAL.  IT LAY AT
THE CORE OF THE ALLEGED OFFENSE.  IT IS THE ENTIRE CONSPIRACY, AND NOT
MERELY THE FILING OF FALSE AFFIDAVITS, WHICH IS THE GRAVAMEN OF THE
CHARGE.  THIS CONSPIRATORIAL PROGRAM INCLUDED, AS PRIME FACTORS, NOT
ONLY THOSE WHO THEMSELVES FILED THE FALSE STATEMENTS, BUT OTHERS WHO
WERE EQUALLY INTERESTED IN THE CONSPIRATORIAL PURPOSE AND WHO WERE
DIRECTLY AND CULPABLY INVOLVED IN THE ALLEGED SCHEME.  THE GOVERNMENT
SOUGHT TO FASTEN CULPABILITY UPON ALL OF THE CONSPIRATORS.  THE
INDICTMENT PROPERLY CHARGES A CONSPIRACY, AND WITH THE REQUIRED
SPECIFICITY ALLEGES THE CULPABLE ROLE OF EACH OF THE PETITIONERS. 

NOR CAN IT BE CONCLUDED THAT A CONSPIRACY OF THE DESCRIBED NATURE AND
OBJECTIVE IS OUTSIDE THE CONDEMNATION OF THE SPECIFIC CLAUSE OF SEC 371
RELIED UPON IN THE INDICTMENT, WHICH CHARGES A CONSPIRACY "TO DEFRAUD
THE UNITED STATES, OR ANY AGENCY THEREOF IN ANY MANNER OR FOR ANY
PURPOSE."  IT HAS LONG BEEN ESTABLISHED THAT THIS STATUTORY LANGUAGE IS
NOT CONFINED TO FRAUD AS THAT TERM HAS BEEN DEFINED IN THE COMMON LAW. 
IT REACHES "ANY CONSPIRACY FOR THE PURPOSE OF IMPAIRING, OBSTRUCTING OR
DEFEATING THE LAWFUL FUNCTION OF ANY DEPARTMENT OF GOVERNMENT," HAAS V.
HENKEL, 216 U.S. 462, 479, QUOTED IN UNITED STATES V. JOHNSON, 383 U.S.
169, 172.  (FN5)  SEE ALSO, LUTWAK V. UNITED STATES, 344 U.S. 604;
GLASSER V. UNITED STATES, 265 U.S. 182, 188.  CF. GOLDSTEIN, CONSPIRACY
TO DEFRAUD THE UNITED STATES, 68 YALE L.J. 405, 414-441, 455-458
(1959).  IN THE PRESENT CASE, IT IS ALLEGED THAT PETITIONERS, UNABLE TO
SECURE FOR THEIR UNION THE BENEFIT OF LABOR BOARD PROCESS EXCEPT BY
SUBMITTING NON-COMMUNIST AFFIDAVITS, COLDLY AND DELIBERATELY CONCOCTED
A FRAUDULENT SCHEME; AND IN FURTHERANCE OF THAT SCHEME, SOME OF THE
PETITIONERS DID IN FACT SUBMIT FALSE AFFIDAVITS AND THE UNION DID
THEREAFTER USE THE LABOR BOARD FACILITIES MADE AVAILABLE TO THEM.  THIS
COURT'S DECISIONS FORECLOSE THE ARGUMENT THAT THESE ALLEGATIONS DO NOT
PROPERLY CHARGE A CONSPIRACY TO DEFRAUD THE UNITED STATES. 

PETITIONERS ARGUE, HOWEVER, THAT THEIR CONDUCT CANNOT BE CONSIDERED
AS FRAUDULENT FOR PURPOSES OF SEC 371 BECAUSE THE LABOR BOARD IS
REQUIRED TO CERTIFY THE COMPLIANCE OF ANY UNION WHOSE OFFICERS HAVE
FILED NON-COMMUNIST AFFIDAVITS - WITHOUT REGARD TO THE VERACITY
THEREOF.  LEEDOM V. INTERNATIONAL UNION, 352 U.S. 145, AND MEAT CUTTERS
V. LABOR BOARD, 352 U.S. 153.  THE CLAIM IS THAT SINCE THE BOARD'S
ACTION IN MAKING ITS SERVICES AVAILABLE TO THE UNION WAS NOT AND COULD
NOT LAWFULLY HAVE BEEN PREDICATED UPON THE TRUTHFULNESS OF THE
AFFIDAVITS, THE ELEMENT OF RELIANCE IS MISSING AND THERE IS NO
CONSPIRACY TO DEFRAUD.  IT IS TRUE THAT CONGRESS, IN ORDER TO FREE THE
BOARD OF THE DELAYS THAT WOULD BE ATTENDANT UPON TESTING THE BONA FIDES
OF CONTROVERTED AFFIDAVITS,  (FN6) DID RELEGATE TO THE CRIMINAL LAW THE
RESPONSIBILITY FOR DEALING WITH FALSE FILINGS.  THIS ALLOCATION OF
RESPONSIBILITY RELATING TO THE SANCTIONS ATTACHED TO FALSE AFFIDAVITS
DOES NOT ALTER THE CHARACTER OR LEGAL CONSEQUENCES OF PETITIONERS'
ALLEGED ACTIONS.  IT IS BEYOND ARGUMENT THAT CONGRESS UNMISTAKABLY
REGARDED THE FILING OF TRUTHFUL AFFIDAVITS - AND NOT MERELY AFFIDAVITS
TRUE OR FALSE - AS OF THE ESSENCE OF THE PRIVILEGE OF USING BOARD
FACILITIES.  CONGRESS MADE THIS DOUBLY CLEAR BY EXPRESSLY PROVIDING
THAT CERTAIN CRIMINAL STATUTES, SUCH AS 18 U.S.C. SEC 1001 RELATING TO
THE FILING OF FALSE STATEMENTS, SHALL BE APPLICABLE IN RESPECT OF SEC
9(H) AFFIDAVITS. 

THE FACTS ARE, ACCORDING TO THE INDICTMENT, THAT PETITIONERS AND
THEIR CO-CONSPIRATORS COULD NOT HAVE OBTAINED THE BOARD'S SERVICES AND
FACILITIES WITHOUT FILING NON-COMMUNIST AFFIDAVITS; THAT THE AFFIDAVITS
WERE SUBMITTED AS PART OF A SCHEME TO INDUCE THE BOARD TO ACT; THAT THE
BOARD ACTED IN RELIANCE UPON THE FACT THAT AFFIDAVITS WERE FILED; AND
THAT THESE AFFIDAVITS WERE FALSE.  WITHIN THE MEANING OF SEC 371, THIS
WAS A CONSPIRACY TO DEFRAUD THE UNITED STATES OR AN AGENCY THEREOF. 

STILL ANOTHER ARGUMENT IS ADVANCED TO DEFEAT THE INDICTMENT. 
PETITIONERS SUBMIT THAT THIS CASE DOES NOT INVOLVE A CONSPIRACY TO
DEFRAUD, BUT RATHER, UNDER THE ALTERNATIVE CLAUSE OF SEC 371, A
CONSPIRACY TO COMMIT THE SUBSTANTIVE OFFENSE OF FILING FALSE STATEMENTS
IN VIOLATION OF 18 U.S.C. SEC 1001.  IT IS THEIR CONTENTION THAT
BRIDGES V. UNITED STATES, 346 U.S. 209, COMPELS THE CONCLUSION THAT A
CONSPIRACY TO FILE FALSE STATEMENTS MAY NOT PROPERLY BE LAID UNDER THE
CONSPIRACY-TO-DEFRAUD CLAUSE OF SEC 371.  BRIDGES IS NOT IN POINT.  THE
DECISION THERE DID NOT TURN UPON CONSTRUCTION OF SEC 371.  THE QUESTION
BEFORE THE COURT WAS WHETHER A PROSECUTION, OTHERWISE TIME-BARRED,
COULD BE REVIVED BY REFERENCE TO THE WAR-TIME SUSPENSION OF LIMITATIONS
ACT, 18 U.S.C. SEC 3287 (1964 ED.).  THE SUSPENSION ACT APPLIES TO "ANY
OFFENSE  ...  INVOLVING FRAUD OR ATTEMPTED FRAUD AGAINST THE UNITED
STATES OR ANY AGENCY THEREOF  ...  ."  THE INDICTMENT IN BRIDGES
CHARGED BOTH THE FILING OF FALSE STATEMENTS AND A CONSPIRACY TO
DEFRAUD, IN ORDER TO OBTAIN A CERTIFICATE OF NATURALIZATION.  (FN7)
THE COURT HELD THAT THE SUSPENSION ACT DID NOT APPLY TO THESE
OFFENSES.  THE ACT, THE COURT RULED, WAS TO BE CONSTRUED NARROWLY AND
TO BE APPLIED "ONLY WHERE THE FRAUD IS OF A PECUNIARY NATURE OR AT
LEAST OF A NATURE CONCERNING PROPERTY."  346 U.S., AT 215.  THE COURT
CHARACTERIZED THE CHARGE THAT BRIDGES AND HIS COLLABORATORS HAD
CONSPIRED TO DEFRAUD THE UNITED STATES AS A "CLOAK," THE SOLE PURPOSE
OF WHICH WAS TO REVIVE A STALE PROSECUTION. 

IN THE PRESENT CASE, ON THE OTHER HAND, THE ALLEGATION AS TO
CONSPIRACY TO DEFRAUD, AS WE HAVE DISCUSSED, PROPERLY REFLECTS THE
ESSENCE OF THE ALLEGED OFFENSE.  IT DOES NOT INVOLVE AN ATTEMPT BY
PROSECUTORIAL SLEIGHT OF HAND TO OVERCOME A TIME BAR.  (FN8)  THE FACT
THAT THE EVENTS INCLUDE THE FILING OF FALSE STATEMENTS DOES NOT, IN AND
OF ITSELF, MAKE THE CONSPIRACY-TO-DEFRAUD CLAUSE OF SEC 371 UNAVAILABLE
TO THE PROSECUTION.  CF. GLASSER V. UNITED STATES, 315 U.S. 60, 66-67;
UNITED STATES V. MANTON, 107 F.2D 834, 839 (C.A.2D CIR. 1939), CERT.
DENIED, 309 U.S. 664. 

WE CONCLUDE, THEREFORE, THAT THE INDICTMENT PROPERLY CHARGED A
VIOLATION OF THE CONSPIRACY-TO-DEFRAUD CLAUSE OF SEC 371. 

                         II. 

PETITIONERS NEXT URGE THAT WE SET ASIDE THEIR CONVICTIONS ON THE
GROUND THAT SEC 9(H) OF THE TAFT-HARTLEY ACT IS UNCONSTITUTIONAL.  IN
PARTICULAR, THEY RELY UPON UNITED STATES V. BROWN, 381 U.S. 437, IN
WHICH THE COURT HELD UNCONSTITUTIONAL AS A BILL OF ATTAINDER THE
STATUTE ENACTED BY CONGRESS IN 1959 TO REPLACE SEC 9(H).  THE NEW
STATUTE MADE IT A CRIME FOR A MEMBER OF THE COMMUNIST PARTY TO HOLD
OFFICE OR ANY OTHER SUBSTANTIAL EMPLOYMENT IN A LABOR UNION.  (FN9)
THEY CONTEND THAT BROWN IN EFFECT OVERRULED AMERICAN COMMUNICATIONS
ASSN. V. DOUDS, 339 U.S. 382, WHICH SUSTAINED THE VALIDITY OF SEC 9(H),
AND THEY ASK THAT WE NOW RECONSIDER DOUDS.  (FN10) 

WE NEED NOT REACH THIS QUESTION, FOR PETITIONERS ARE IN NO POSITION
TO ATTACK THE CONSTITUTIONALITY OF SEC 9(H).  THEY WERE INDICTED FOR AN
ALLEGED CONSPIRACY, CYNICAL AND FRAUDULENT, TO CIRCUMVENT THE STATUTE. 
WHATEVER MIGHT BE THE RESULT WHERE THE CONSTITUTIONALITY OF A STATUTE
IS CHALLENGED BY THOSE WHO OF NECESSITY VIOLATE ITS PROVISIONS AND SEEK
RELIEF IN THE COURTS IS NOT RELEVANT HERE.  THIS IS NOT SUCH A CASE. 
THE INDICTMENT HERE ALLEGES AN EFFORT TO CIRCUMVENT THE LAW AND NOT TO
CHALLENGE IT - A PURPORTED COMPLIANCE WITH THE STATUTE DESIGNED TO
AVOID THE COURTS, NOT TO INVOKE THEIR JURISDICTION.  (FN11)   IT IS NO
DEFENSE TO A CHARGE BASED UPON THIS SORT OF ENTERPRISE THAT THE
STATUTORY SCHEME SOUGHT TO BE EVADED IS SOMEHOW DEFECTIVE.  AMPLE
OPPORTUNITIES EXIST IN THIS COUNTRY TO SEEK AND OBTAIN JUDICIAL
PROTECTION.  (FN12)  THERE IS NO REASON FOR THIS COURT TO CONSIDER THE
CONSTITUTIONALITY OF A STATUTE AT THE BEHEST OF PETITIONERS WHO HAVE
BEEN INDICTED FOR CONSPIRACY BY MEANS OF FALSEHOOD AND DECEIT TO
CIRCUMVENT THE LAW WHICH THEY NOW SEEK TO CHALLENGE.  THIS IS THE
TEACHING OF THE CASES. 

IN KAY V. UNITED STATES, 303 U.S. 1, THIS COURT UPHELD A CONVICTION
FOR MAKING FALSE STATEMENTS IN CONNECTION WITH THE HOME OWNERS' LOAN
ACT OF 1933, WITHOUT PASSING UPON THE CLAIM THAT THE ACT WAS INVALID. 
THE COURT SAID, "WHEN ONE UNDERTAKES TO CHEAT THE GOVERNMENT OR TO
MISLEAD ITS OFFICERS, OR THOSE ACTING UNDER ITS AUTHORITY, BY FALSE
STATEMENTS, HE HAS NO STANDING TO ASSERT THAT THE OPERATIONS OF THE
GOVERNMENT IN WHICH THE EFFORT TO CHEAT OR MISLEAD IS MADE ARE WITHOUT
CONSTITUTIONAL SANCTION."  303 U.S., AT 6.  SEE ALSO UNITED STATES V.
KAPP, 302 U.S. 214, INVOLVING A FALSE CLAIM FOR MONEY UNDER THE
SUBSEQUENTLY INVALIDATED AGRICULTURAL ADJUSTMENT ACT OF 1933. 
ANALOGOUS ARE THOSE CASES IN WHICH PROSECUTIONS FOR PERJURY HAVE BEEN
PERMITTED DESPITE THE FACT THAT THE TRIAL AT WHICH THE FALSE TESTIMONY
WAS ELICITED WAS UPON AN INDICTMENT STATING NO FEDERAL OFFENSE (UNITED
STATES V. WILLIAMS, 341 U.S. 58, 65-69); THAT THE TESTIMONY WAS BEFORE
A GRAND JURY ALLEGED TO HAVE BEEN TAINTED BY GOVERNMENTAL MISCONDUCT
(UNITED STATES V. REMINGTON, 208 F.2D 567, 569 (C.A.2D CIR. 1953),
CERT. DENIED, 347 U.S. 913); OR THAT THE DEFENDANT TESTIFIED WITHOUT
HAVING BEEN ADVISED OF HIS CONSTITUTIONAL RIGHTS (UNITED STATES V.
WINTER, 348 F.2D 204, 208-210 (C.A.2D CIR. 1965), CERT. DENIED, 382
U.S. 955, AND CASES CITED THEREIN). 

PETITIONERS SEEK TO DISTINGUISH THESE CASES ON THE GROUND THAT IN THE
PRESENT CASE THE CONSTITUTIONAL CHALLENGE IS TO THE PROPRIETY OF THE
VERY QUESTION - COMMUNIST PARTY MEMBERSHIP AND AFFILIATION - WHICH
PETITIONERS ARE ACCUSED OF ANSWERING FALSELY.  WE REGARD THIS
DISTINCTION AS WITHOUT FORCE.  THE GOVERNING PRINCIPLE IS THAT A CLAIM
OF UNCONSTITUTIONALITY WILL NOT BE HEARD TO EXCUSE A VOLUNTARY,
DELIBERATE AND CALCULATED COURSE OF FRAUD AND DECEIT.  ONE WHO ELECTS
SUCH A COURSE AS A MEANS OF SELF-HELP MAY NOT ESCAPE THE CONSEQUENCES
BY URGING THAT HIS CONDUCT BE EXCUSED BECAUSE THE STATUTE WHICH HE
SOUGHT TO EVADE IS UNCONSTITUTIONAL.  THIS IS A PROSECUTION DIRECTED AT
PETITIONERS' FRAUD.  IT IS NOT AN ACTION TO ENFORCE THE STATUTE CLAIMED
TO BE UNCONSTITUTIONAL. 

IT IS ARGUED IN DISSENT, SEE PP. 876-880, POST, THAT WE CANNOT AVOID
PASSING UPON PETITIONERS' CONSTITUTIONAL CLAIM BECAUSE IT BEARS UPON
WHETHER THEY MAY BE CHARGED WITH DEFRAUDING THE GOVERNMENT OF A "LAWFUL
FUNCTION."  AT THE TIME OF SOME OF THE ALLEGEDLY FRAUDULENT ACTS OF THE
CONSPIRATORS, THIS COURT'S DECISION IN DOUDS HAD BEEN HANDED DOWN.  IT
WAS FLOUTED, NOT OVERLOOKED.  THIS POSITION LOSES SIGHT OF THE
DISTINCTION BETWEEN APPROPRIATE AND INAPPROPRIATE WAYS TO CHALLENGE
ACTS OF GOVERNMENT THOUGHT TO BE UNCONSTITUTIONAL.  MOREOVER, THIS VIEW
ASSUMES THAT FOR PURPOSES OF SEC 371, A GOVERNMENTAL FUNCTION MAY BE
SAID TO BE "UNLAWFUL" EVEN THOUGH IT IS REQUIRED BY STATUTE AND CARRIES
THE FRESH IMPRIMATUR OF THIS COURT.  SUCH A FUNCTION IS NOT IMMUNE TO
JUDICIAL CHALLENGE.  BUT, IN CIRCUMSTANCES LIKE THOSE BEFORE US, IT MAY
NOT BE CIRCUMVENTED BY A COURSE OF FRAUD AND FALSEHOOD, WITH THE
CONSTITUTIONAL ATTACK BEING HELD FOR USE ONLY IF THE CONSPIRATORS ARE
DISCOVERED. 

BECAUSE THE CLAIMED INVALIDITY OF SEC 9(H) WOULD BE NO DEFENSE TO THE
CRIME OF CONSPIRACY CHARGED IN THIS INDICTMENT, WE FIND IT UNNECESSARY
TO RECONSIDER DOUDS. 

                                           III. 

WE TURN NOW TO PETITIONERS' CONTENTION THAT THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY DENYING THEIR MOTION TO REQUIRE PRODUCTION FOR
PETITIONERS' EXAMINATION OF THE GRAND JURY TESTIMONY OF FOUR GOVERNMENT
WITNESSES.  (FN13)  ALTERNATIVELY, PETITIONERS SOUGHT IN CAMERA
INSPECTION BY THE TRIAL JUDGE TO BE FOLLOWED BY PRODUCTION TO
PETITIONERS IN THE EVENT THE JUDGE FOUND INCONSISTENCIES BETWEEN TRIAL
TESTIMONY AND THAT BEFORE THE GRAND JURY. 

THE TRIAL JUDGE DENIED THE MOTIONS, MADE AT THE CONCLUSION OF THE
DIRECT EXAMINATION OF EACH OF THE WITNESSES, ON THE GROUND THAT NO
"PARTICULARIZED NEED" HAD BEEN SHOWN.  SEE PITTSBURGH PLATE GLASS CO.
V. UNITED STATES, 360 U.S. 395, 400.  ON APPEAL, THE COURT OF APPEALS
HELD THAT THE DENIAL OF THE MOTIONS WAS NOT REVERSIBLE ERROR.  THE
COURT RECOGNIZED "THE INHERENT POWER AND THE INESCAPABLE DUTY OF THE
TRIAL COURT TO LIFT THE LID OF SECRECY ON GRAND JURY PROCEEDINGS IN AID
OF THE SEARCH FOR TRUTH," AND THAT ITS OBLIGATION WAS "NOT TO HESITATE
TO INSPECT AND TO DISCLOSE ANY INCONSISTENCIES IF IT IS LIKELY TO AID
THE FAIR ADMINISTRATION OF CRIMINAL JUSTICE THROUGH PROPER CROSS
EXAMINATION AND IMPEACHMENT."  346 F.2D, AT 17.  IT WENT SO FAR AS TO
EXPRESS THE VIEW THAT "IT WOULD HAVE BEEN SAFER TO HAVE INSPECTED THE
GRAND JURY TESTIMONY."  ID., AT 18.  BUT BECAUSE "THE WITNESSES WERE
THOROUGHLY AND COMPETENTLY CROSS-EXAMINED ON NUMEROUS OTHER RELEVANT
JUDICIAL AND EXTRA-JUDICIAL STATEMENTS WITHOUT MANIFEST INCONSISTENCY,"
THE COURT THOUGHT IT "SAFE TO ASSUME THAT THE GRAND JURY PROCEEDINGS
WOULD NOT HAVE DISCLOSED ANYTHING OF IMPEACHING SIGNIFICANCE."  IBID. 

IN HIS BRIEF IN THIS COURT, THE SOLICITOR GENERAL CONCEDES THAT
"THERE IS SUBSTANTIAL FORCE TO PETITIONERS' CLAIMS THAT THE INTEREST IN
SECRECY WAS MINIMAL IN LIGHT OF THE OFT-REPEATED TESTIMONY OF THE
WITNESSES AND THAT THE ARGUMENTS THEY NOW ADVANCE, IF MADE AT TRIAL,
MIGHT HAVE SUGGESTED IN CAMERA INSPECTION AS AN APPROPRIATE COURSE." 
BRIEF FOR THE UNITED STATES, P.51.  BUT THE GOVERNMENT ARGUES THAT IT
WAS NOT ERROR FOR THE TRIAL JUDGE TO HAVE DENIED PETITIONERS' MOTIONS. 
WITH THIS LATTER PROPOSITION WE DISAGREE, AND WE REVERSE. 

THIS COURT HAS RECOGNIZED THE "LONG-ESTABLISHED POLICY THAT MAINTAINS
THE SECRECY OF THE GRAND JURY PROCEEDINGS IN THE FEDERAL COURTS." 
UNITED STATES V. PROCTER & GAMBLE CO., 356 U.S. 677, 681.  AND IT HAS
RULED THAT, WHEN DISCLOSURE IS PERMITTED, IT IS TO BE DONE "DISCRETELY
AND LIMITEDLY."  ID., AT 683.  ACCORDINGLY, THE COURT HAS REFUSED IN A
CIVIL CASE TO PERMIT PRETRIAL DISCLOSURE OF AN ENTIRE GRAND JURY
TRANSCRIPT WHERE THE SOLE BASIS FOR DISCOVERY WAS THAT THE TRANSCRIPT
HAD BEEN AVAILABLE TO THE GOVERNMENT IN PREPARATION OF ITS CASE. 
PROCTER & GAMBLE, SUPRA.  AND, IN PITTSBURGH PLATE GLASS CO. V. UNITED
STATES, SUPRA, THE COURT SUSTAINED A TRIAL COURT'S REFUSAL TO ORDER
DISCLOSURE OF A WITNESS' GRAND JURY TESTIMONY WHERE THE DEFENSE MADE NO
SHOWING OF NEED, BUT INSISTED UPON PRODUCTION OF THE MINUTES AS A
MATTER OF RIGHT, AND WHERE THERE WAS "OVERWHELMING" PROOF OF THE
OFFENSE CHARGED WITHOUT REFERENCE TO THE WITNESS' TRIAL TESTIMONY. 

IN GENERAL, HOWEVER, THE COURT HAS CONFIRMED THE TRIAL COURT'S POWER
UNDER RULE 6(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE TO DIRECT
DISCLOSURE OF GRAND JURY TESTIMONY "PRELIMINARILY TO OR IN CONNECTION
WITH A JUDICIAL PROCEEDING."  IN UNITED STATES V. SOCONY-VACUUM OIL
CO., 310 U.S. 150, 234, THE COURT ACKNOWLEDGED THAT "AFTER THE GRAND
JURY'S FUNCTIONS ARE ENDED, DISCLOSURE IS WHOLLY PROPER WHERE THE ENDS
OF JUSTICE REQUIRE IT."  IN PROCTER & GAMBLE, SUPRA, THE COURT STATED
THAT "PROBLEMS CONCERNING THE USE OF THE GRAND JURY TRANSCRIPT AT THE
TRIAL TO IMPEACH A WITNESS, TO REFRESH HIS RECOLLECTION, TO TEST HIS
CREDIBILITY  ...  " ARE "CASES OF PARTICULARIZED NEED WHERE THE SECRECY
OF THE PROCEEDINGS IS LIFTED DISCRETELY AND LIMITEDLY."  356 U.S., AT
683.  AND IN PITTSBURGH PLATE GLASS, SUPRA, WHERE FOUR MEMBERS OF THE
COURT CONCLUDED THAT EVEN ON THE SPECIAL FACTS OF THAT CASE THE
WITNESS' GRAND JURY TESTIMONY SHOULD HAVE BEEN SUPPLIED TO THE DEFENSE,
THE ENTIRE COURT WAS AGREED THAT UPON A SHOWING OF "PARTICULARIZED
NEED" DEFENSE COUNSEL MIGHT HAVE ACCESS TO RELEVANT PORTIONS OF THE
GRAND JURY TESTIMONY OF A TRIAL WITNESS, 360 U.S., AT 400, 405.  (FN14)
IN A VARIETY OF CIRCUMSTANCES, THE LOWER FEDERAL COURTS, TOO, HAVE
MADE GRAND JURY TESTIMONY AVAILABLE TO DEFENDANTS.  (FN15) 

THESE DEVELOPMENTS ARE ENTIRELY CONSONANT WITH THE GROWING
REALIZATION THAT DISCLOSURE, RATHER THAN SUPPRESSION, OF RELEVANT
MATERIALS ORDINARILY PROMOTES THE PROPER ADMINISTRATION OF CRIMINAL
JUSTICE.  THIS REALIZATION IS REFLECTED IN THE ENACTMENT OF THE SO
CALLED JENCKS ACT, 18 U.S.C. SEC 3500 (1964 ED.), RESPONDING TO THIS
COURT'S DECISION IN JENCKS V. UNITED STATES, 353 U.S. 657, WHICH MAKES
AVAILABLE TO THE DEFENSE A TRIAL WITNESS' PRETRIAL STATEMENTS INSOFAR
AS THEY RELATE TO HIS TRIAL TESTIMONY.  (FN16)  IT IS ALSO REFLECTED IN
THE EXPANDING BODY OF MATERIALS, JUDICIAL AND OTHERWISE, FAVORING
DISCLOSURE IN CRIMINAL CASES ANALOGOUS TO THE CIVIL PRACTICE.  (FN17) 

CERTIANLY IN THE CONTEXT OF THE PRESENT CASE, WHERE THE GOVERNMENT
CONCEDES THAT THE IMPORTANCE OF PRESERVING THE SECRECY OF THE GRAND
JURY MINUTES IS MINIMAL AND ALSO ADMITS THE PERSUASIVENESS OF THE
ARGUMENTS ADVANCED IN FAVOR OF DISCLOSURE, IT CANNOT FAIRLY BE SAID
THAT THE DEFENSE HAS FILAED TO MAKE OUT A "PARTICULARIZED NEED."  THE
SHOWING MADE BY PETITIONERS, BOTH IN THE TRIAL COURT AND HERE, GOES
SUBSTANTIALLY BEYOND THE MINIMUM REQUIRED BY RULE 6(E) AND THE PRIOR
DECISIONS OF THIS COURT.  (FN18)  THE RECORD SHOWS THE FOLLOWING
CIRCUMSTANCES: 

1.  THE EVENTS AS TO WHICH THE TESTIMONY IN QUESTION RELATED OCCURRED
BETWEEN 1948 AND 1955.  THE GRAND JURY TESTIMONY WAS TAKEN IN 1956,
WHILE THESE EVENTS WERE RELATIVELY FRESH.  THE TRIAL TESTIMONY WHICH
PETITIONERS SEEK TO COMPARE WITH THE 1956 GRAND JURY TESTIMONY WAS NOT
TAKEN UNTIL 1963.  CERTAINLY, THERE WAS REASON TO ASSAY THE LATTER
TESTIMONY, SOME OF WHICH IS 15 YEARS AFTER THE EVENT, AGAINST THE MUCH
FRESHER TESTIMONY BEFORE THE GRAND JURY.  (FN19) 

2.  THE MOTIONS IN QUESTION INVOLVED THE TESTIMONY OF FOUR OF THE
EIGHT GOVERNMENT WITNESSES.  THEY WERE KEY WITNESSES.  THE CHARGE COULD
NOT BE PROVED ON THE BASIS OF EVIDENCE EXCLUSIVE OF THAT HERE
INVOLVED. 

3.  THE TESTIMONY OF THE FOUR WITNESSES CONCERNED CONVERSATIONS AND
ORAL STATEMENTS MADE IN MEETINGS.  IT WAS LARGELY UNCORROBORATED. 
WHERE THE QUESTION OF GUILT OR INNOCENCE MAY TURN ON EXACTLY WHAT WAS
SAID, THE DEFENSE IS CLEARLY ENTITLED TO ALL RELEVANT AID WHICH IS
REASONABLY AVAILABLE TO ASCERTAIN THE PRECISE SUBSTANCE OF THE
STATEMENTS. 

4.  TWO OF THE WITNESSES WERE ACCOMPLICES, ONE OF THESE BEING ALSO A
PAID INFORMER.  A THIRD HAD SEPARATED FROM THE UNION AND HAD REASONS
FOR HOSTILITY TOWARD PETITIONERS. 

5.  ONE WITNESS ADMITTED ON CROSS-EXAMINATION THAT HE HAD IN EARLIER
STATEMENTS BEEN MISTAKEN ABOUT SIGNIFICANT DATES. 

A CONSPIRACY CASE CARRIES WITH IT THE INEVITABLE RISK OF WRONGFUL
ATTRIBUTION OF RESPONSIBILITY TO ONE OR MORE OF THE MULTIPLE
DEFENDANTS.  SEE, E.G., UNITED STATES V. BUFALINO, 285 F.2D 408, 417
418 (C.A.2D CIR. 1960).  UNDER THESE CIRCUMSTANCES, IT IS ESPECIALLY
IMPORTANT THAT THE DEFENSE, THE JUDGE AND THE JURY SHOULD HAVE THE
ASSURANCE THAT THE DOORS THAT MAY LEAD TO TRUTH HAVE BEEN UNLOCKED.  IN
OUR ADVERSARY SYSTEM FOR DETERMINING GUILT OR INNOCENCE, IT IS RARELY
JUSTIFIABLE FOR THE PROSECUTION TO HAVE EXCLUSIVE ACCESS TO A
STOREHOUSE OF RELEVANT FACT.  (FN20)  EXCEPTIONS TO THIS ARE
JUSTIFIABLE ONLY BY THE CLEAREST AND MOST COMPELLING CONSIDERATIONS. 
FOR THIS REASON, WE CANNOT ACCEPT THE VIEW OF THE COURT OF APPEALS THAT
IT IS "SAFE TO ASSUME" NO INCONSISTENCIES WOULD HAVE COME TO LIGHT IF
THE GRAND JURY TESTIMONY HAD BEEN EXAMINED.  THERE IS NO JUSTIFICATION
FOR RELYING UPON "ASSUMPTION." 

IN PITTSBURGH PLATE GLASS, SUPRA, THE COURT RESERVED DECISION ON THE
QUESTION WHETHER IN CAMERA INSPECTION BY THE TRIAL JUDGE IS AN
APPROPRIATE OR SATISFACTORY MEASURE WHEN THERE IS A SHOWING OF A
"PARTICULARIZED NEED" FOR DISCLOSURE.  360 U.S., AT 401.  THIS
PROCEDURE, FOLLOWED BY PRODUCTION TO DEFENSE COUNSEL IN THE EVENT THE
TRIAL JUDGE FINDS INCONSISTENCIES, HAS BEEN ADOPTED IN SOME OF THE
COURTS OF APPEALS.  IN THE SECOND CIRCUIT IT IS AVAILABLE AS A MATTER
OF RIGHT.  (FN21)  WHILE THIS PRACTICE MAY BE USEFUL IN ENABLING THE
TRIAL COURT TO RULE ON A DEFENSE MOTION FOR PRODUCTION TO IT OF GRAND
JURY TESTIMONY - AND WE DO NOT DISAPPROVE IT FOR THAT PURPOSE - IT BY
NO MEANS DISPOSES OF THE MATTER.  TRIAL JUDGES OUGHT NOT TO BE BURDENED
WITH THE TASK OR THE RESPONSIBILITY OF EXAMINING SOMETIMES VOLUMINOUS
GRAND JURY TESTIMONY IN ORDER TO ASCERTAIN INCONSISTENCIES WITH TRIAL
TESTIMONY.  IN ANY EVENT, "IT WILL BE EXTREMELY DIFFICULT FOR EVEN THE
MOST ABLE AND EXPERIENCED TRIAL JUDGE UNDER THE PRESSURES OF CONDUCTING
A TRIAL TO PICK OUT ALL OF THE GRAND JURY TESTIMONY THAT WOULD BE
USEFUL IN IMPEACHING A WITNESS."  PITTSBURGH PLATE GLASS, 360 U.S., AT
410 (DISSENTING OPINION).  NOR IS IT REALISTIC TO ASSUME THAT THE TRIAL
COURT'S JUDGMENT AS TO THE UTILITY OF MATERIAL FOR IMPEACHMENT OR OTHER
LEGITIMATE PURPOSES, HOWEVER CONSCIENTIOUSLY MADE, WOULD EXHAUST THE
POSSIBILITIES.  IN OUR ADVERSARY SYSTEM, IT IS ENOUGH FOR JUDGES TO
JUDGE.  THE DETERMINATION OF WHAT MAY BE USEFUL TO THE DEFENSE CAN
PROPERLY AND EFFECTIVELY BE MADE ONLY BY AN ADVOCATE.  (FN22) THE TRIAL
JUDGE'S FUNCTION IN THIS RESPECT IS LIMITED TO DECIDING WHETHER A CASE
HAS BEEN MADE FOR PRODUCTION, AND TO SUPERVISE THE PROCESS:  FOR
EXAMPLE, TO CAUSE THE ELIMINATION OF EXTRANEOUS MATTER AND TO RULE UPON
APPLICATIONS BY THE GOVERNMENT FOR PROTECTIVE ORDERS IN UNUSUAL
SITUATIONS, SUCH AS THOSE INVOLVING THE NATION'S SECURITY OR CLEARCUT
DANGERS TO INDIVIDUALS WHO ARE IDENTIFIED BY THE TESTIMONY PRODUCED. 
CF. FED. RULE CRIM. PROC. 16(E), AS AMENDED IN 1966; 18 U.S.C. SEC
3500(C).    BECAUSE PETITIONERS WERE ENTITLED TO EXAMINE THE GRAND JURY
MINUTES RELATING TO TRIAL TESTIMONY OF THE FOUR GOVERNMENT WITNESSES,
AND TO DO SO WHILE THOSE WITNESSES WERE AVAILABLE FOR CROSS
EXAMINATION, WE REVERSE THE JUDGMENT BELOW AND REMAND FOR A NEW TRIAL. 
IT IS SO ORDERED. 

FN1  THE STATUTE READS:  "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  ...  ." 

FN2  CONGRESS SUBSTITUTED FOR SEC 9(H), LEGISLATION MAKING IT A CRIME
FOR A COMMUNIST PARTY MEMBER TO HOLD OFFICE OR ANY OTHER SUBSTANTIAL
POSITION OF EMPLOYMENT IN ANY LABOR UNION.  73 STAT. 536, 29 U.S.C. SEC
504 (1964 ED.).  SEE NOTE 9, INFRA.  IN UNITED STATES V. BROWN, 381
U.S. 437, THIS SUCCESSOR STATUTE WAS HELD UNCONSTITUTIONAL AS A BILL OF
ATTAINDER. 

FN3  ONE OF THE PETITIONERS, TRAVIS, MADE A PUBLIC ANNOUNCEMENT OF
HIS RESIGNATION.  THE OTHER OFFICERS OF THE UNION SENT PURPORTED
LETTERS OF RESIGNATION FROM THE PARTY TO LOCAL PARTY OFFICES. 

FN4  THE OPINION OF THE DISTRICT COURT SUSTAINING THE INDICTMENT IS
REPORTED IN UNITED STATES V. PEZZATI, 160 F. SUPP. 787 (D.C.D. COLO.
1958).  ON THIS ISSUE, THE COURT OF APPEALS AFFIRMED.  UNITED STATES V.
DENNIS, 302 F.2D 5 (C.A. 10TH CIR. 1962). 

FN5  IN JOHNSON, THE ALLEGATION THAT THE DEFENDANTS HAD CONSPIRED TO
DEFRAUD THE UNITED STATES WAS UPHELD ALTHOUGH THEY WERE NOT CHARGED
WITH "ANY FALSE STATEMENT, MISREPRESENTATION OR DECEIT."  SEE UNITED
STATES V. JOHNSON, 337 F.2D 180, 185-186 (C.A. 4TH CIR. 1964), AFF'D AS
TO THAT ISSUE, 383 U.S. 169, 172. 

FN6  SEE THE LEGISLATIVE MATERIALS SET OUT IN LEEDOM V. INTERNATIONAL
UNION, 352 U.S., AT 149-150. 

FN7  THE INDICTMENT IN BRIDGES WAS IN THREE COUNTS.  TWO CHARGED
SUBSTANTIVE VIOLATIONS OF FALSE STATEMENT PROVISIONS OF THE NATIONALITY
ACT OF 1940, FORMERLY 8 U.S.C.  SECS 746(A)(1) AND 746(A)(5) (1940
ED.), NOW 18 U.S.C. SECS 1015 AND 1425 (1964 ED.).  THE THIRD COUNT
ALLEGED A CONSPIRACY TO DEFRAUD THE UNITED STATES OR AN AGENCY THEREOF,
IN VIOLATION OF 18 U.S.C. SEC 371. 

FN8  PETITIONERS SUGGEST THAT IN THIS CASE, TOO, THE GOVERNMENT
RESORTED TO THE CONSPIRACY-TO-DEFRAUD CLAUSE OF SEC 371 IN ORDER TO
AVOID A TIME BAR.  THE CLAIM IS THAT THIS WAS NECESSARY TO BRING THE
1949 FILINGS (DEFENDANT VAN CAMP, ACQUITTED AT TRIAL, MADE NO FILINGS
AFTER 1949) WITHIN THE APPLICABLE STATUTE OF LIMITATIONS.  BUT THE
EVENTS OF 1949 ARE PROPERLY WITHIN THE TIME SPAN OF THE INDICTMENT AND
PROVABLE AT TRIAL, NOT BECAUSE IT CHARGES A CONSPIRACY TO DEFRAUD, BUT
BECUASE IT CHARGES A CONSPIRACY, AND BECAUSE AT LEAST ONE OVERT ACT IS
ALLEGED TO FALL WITHIN THE APPLICABLE PERIOD.  SEE GRUNEWALD V. UNITED
STATES, 353 U.S. 391, 396-397; FISWICK V. UNITED STATES, 329 U.S. 211,
216; BROWN V. ELLIOTT, 225 U.S. 392, 400-401.  HAD THE INDICTMENT
CHARGED A CONSPIRACY TO VIOLATE SEC 1001 - WHICH CHARGE WOULD BE
UNAFFECTED BY BRIDGES - THE SAME RESULT WOULD OBTAIN; THAT IS, THE
GOVERNMENT WAS ENABLED TO REACH BACK TO 1949 BY REASON OF THE
CONSPIRACY CHARGE.  WHETHER IT CHARGED A CONSPIRACY TO COMMIT AN
OFFENSE OR ONE TO DEFRAUD IS IMMATERIAL FOR THIS PURPOSE.  UNLIKE THE
SITUATION IN BRIDGES, THE GOVERNMENT HERE SECURED NO ADVANTAGE WITH
RESPECT TO LIMITATIONS BY CHARGING UNDER ONE CLAUSE OF SEC 371 RATHER
THAN THE OTHER. 

FN9  THE STATUTE, 73 STAT. 536, 29 U.S.C. SEC 504 (1964 ED.),
PROVIDES:  "(A) NO PERSON WHO IS OR HAS BEEN A MEMBER OF THE COMMUNIST
PARTY  ...  SHALL SERVE: 

"(1)  AS AN OFFICER, DIRECTOR, TRUSTEE, MEMBER OF ANY EXECUTIVE BOARD
OR SIMILAR GOVERNING BODY, BUSINESS AGENT, MANAGER, ORGANIZER, OR OTHER
EMPLOYEE (OTHER THAN AS AN EMPLOYEE PERFORMING EXCLUSIVELY CLERICAL OR
CUSTODIAL DUTIES) OF ANY LABOR ORGANIZATION  ...  DURING OR FOR FIVE
YEARS AFTER THE TERMINATION OF HIS MEMBERSHIP IN THE COMMUNIST PARTY
...  . 

"(B)  ANY PERSON WHO WILLFULLY VIOLATES THIS SECTION SHALL BE FINED
NOT MORE THAN $10,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR
BOTH." 

FN10  PETITIONERS ALSO RELY UPON APTHEKER V. SECRETARY OF STATE, 378
U.S. 500, WHERE THE COURT INVALIDATED A STATUTE DENYING PASSPORTS TO
MEMBERS OF ANY COMMUNIST ORGANIZATION. 

FN11  WE NOTE THAT PETITIONERS ARE ALLEGED TO HAVE ENTERED UPON THE
CONSPIRACY AND TO HAVE FILED THE FIRST SET OF FALSE AFFIDAVITS DURING
THE PENDENCY IN THIS COURT OF A CASE RAISING PRECISELY THE
CONSTITUTIONAL ISSUE NOW RAISED BY THEM.  PROBABLE JURISDICTION WAS
NOTED IN DOUDS ON NOVEMBER 8, 1948, AND CERTIORARI WAS GRANTED IN THE
COMPANION CASE, UNITED STEELWORKERS V. LABOR BOARD, 335 U.S. 910, ON
JANUARY 17, 1949.  PETITIONERS ARE CHARGED WITH COMMENCING TO CONSPIRE
IN JUNE 1949 AND WITH FILING FALSE AFFIDAVITS IN AUGUST 1949.  DESPITE
THIS COURT'S DECISION IN DOUDS, ANNOUNCED ON MAY 8, 1950 (339 U.S.
382), SUSTAINING THE VALIDITY OF SEC 9(H), THE INDICTMENT CHARGES THAT
PETITIONER DENNIS AND ONE VAN CAMP SIGNED A BOARD ELECTION AGREEMENT
LESS THAN TWO WEEKS LATER, AND IN DECEMBER 1950 NEW AFFIDAVITS WERE
FILED.  IN SHORT, PETITIONERS CHOSE NOT ONLY TO EVADE THE STATUTE, BUT
TO IGNORE JUDICIAL PROCEEDINGS LIKELY TO CLARIFY THEIR RIGHTS AND THEN
TO FLOUT AN ADVERSE DECISION OF THIS COURT.  IN THIS CONTEXT, ANY CLAIM
THAT IT IS TOO BURDENSOME TO TEST THESE STATUTES IN THE COURTS IS NOT
ENTITLED TO CONSIDERATION. 

FN12  INDEED, PETITIONERS' OWN UNION SUCCESSFULLY PREVENTED THE
NATIONAL LABOR RELATIONS BOARD FROM WITHHOLDING BENEFITS ON THE BASIS
OF PETITIONER TRAVIS' ALLEGEDLY FALSE SEC 9(H) AFFIDAVIT.  LEEDOM V.
INTERNATIONAL UNION, 352 U.S. 145. 

FN13  THREE OF THE WITNESSES IN QUESTION TESTIFIED AT THE SECOND
TRIAL.  A FOURTH, MASON, DIED IN THE INTERVAL BETWEEN THE TWO TRIALS. 
AT THE FIRST TRIAL, THE PETITIONERS HAD MOVED FOR PRODUCTION OR IN
CAMERA INSPECTION OF HIS GRAND JURY TESTIMONY.  THIS WAS DENIED.  AT
THE SECOND TRIAL, THEY OBJECTED TO USE OF HIS TESTIMONY AT THE FIRST
TRIAL ON THE GROUND THAT THEY HAD NOT BEEN PERMITTED TO EXAMINE, OR TO
HAVE THE TRIAL JUDGE EXAMINE, THE TRANSCRIPT OF HIS GRAND JURY
TESTIMONY.  SINCE THE OMISSION TO REQUIRE PRODUCITON OF MASON'S GRAND
JURY TESTIMONY WITH A VIEW TO IMPEACHMENT CAN NO LONGER BE REMEDIED,
HIS TRIAL TESTIMONY, UNDER OUR HOLDING HEREIN, IS NO LONGER AVAILABLE
TO THE GOVERNMENT IN THE EVENT PETITIONERS ARE RETRIED. 

FN14  BECAUSE THERE HAD BEEN NO REQUEST FOR IN CAMERA JUDICIAL
INSPECTION OF THE GRAND JURY MINUTES, THE COURT IN PITTSBURGH PLATE
GLASS DID NOT PASS UPON THE ADEQUACY OF THAT TECHNIQUE FOR PROTECTING A
DEFENDANT'S INTERESTS.  360 U.S., AT 401. 

FN15  SEE, E.G., UNITED STATES V. REMINGTON, 191 F.2D 246, 250-251
(C.A.2D CIR. 1951), CERT. DENIED, 343 U.S. 907 (DEFENDANT CHARGED WITH
COMMISSION OF PERJURY BEFORE THE GRAND JURY); ATLANTIC CITY ELECTRIC
CO. V. A.B. CHANCE CO., 313 F.2D 431 (C.A.2D CIR. 1963)(USE BY PRIVATE
PLAINTIFF IN ANTITRUST SUIT OF WITNESS' GRAND JURY TESTIMONY); AND
CASES CITED IN NOTE 21, INFRA. 

FN16  18 U.S.C. SEC 3500(B) (1964 ED.)  READS IN PART:  "AFTER A
WITNESS CALLED BY THE UNITED STATES HAS TESTIFIED ON DIRECT
EXAMINATION, THE COURT SHALL, ON MOTION OF THE DEFENDANT, ORDER THE
UNITED STATES TO PRODUCE ANY STATEMENT  ...  OF THE WITNESS IN THE
POSSESSION OF THE UNITED STATES WHICH RELATES TO THE SUBJECT MATTER AS
TO WHICH THE WITNESS HAS TESTIFIED  ...  ."  SUBSECTION (E) DEFINES
"STATEMENT" FOR PURPOSES OF THE ACT. 

FN17  SEE, E.G., THE AMENDMENTS TO RULE 16 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, APPROVED BY THIS COURT ON FEBRUARY 28, 1966, AND
TRANSMITTED TO CONGRESS, WHICH AUTHORIZE DISCOVERY AND INSPECTION OF A
DEFENDANT'S OWN STATEMENTS, THE RESULTS OF VARIOUS TESTS, AND THE
RECORDED TESTIMONY OF THE DEFENDANT BEFORE THE GRAND JURY (AND SEE THE
ADVISORY COMMITTEE'S NOTE THEREON).  SEE ALSO, CASES ANTICIPATING THIS
BROADENING OF CRIMINAL DISCOVERY:  FOR EXAMPLE, CICENIA V. LAGAY, 357
U.S. 504, 511; UNITED STATES V. PEACE, 16 F.R.D. 423 (D.C.S.D.N.Y.
1954); UNITED STATES V. WILLIS, 33 F.R.D. 510 (D.C.S.D.N.Y. 1963);
UNITED STATES V. WILLIAMS, 37 F.R.D. 24 (D.C.S.D.N.Y. 1965); UNITED
STATES V. NOLTE, 39 F.R.D. 359 (D.C.N.D. CAL. 1965); STATE V. JOHNSON,
28 N.J. 133, 145 A.2D 313 (1958); PEOPLE EX REL. LEMON V. SUPREME
COURT, 245 N.Y. 24, 156 N.E. 84 (1927). 

AMONG THE COMMENTATORS WHO HAVE ARGUED IN FAVOR OF BROADENING
CRIMINAL DISCOVERY ARE BRENNAN, THE CRIMINAL PROSECUTION:  SPORTING
EVENT OR QUEST FOR TRUTH?  1963 WASH. U.L.Q. 279; TRAYNOR, GROUND LOST
AND FOUND IN CRIMINAL DISCOVERY, 39 N.Y.U.L. REV. 228 (1964);
GOLDSTEIN, THE STATE AND THE ACCUSED:  BALANCE OF ADVANTAGE IN CRIMINAL
PROCEDURE, 69 YALE L.J. 1149 (1960); NOTE, DEVELOPMENTS IN THE LAW -
DISCOVERY, 74 HARV. L. REV. 940, 1051-1063 (1961).  OF PARTICULAR
RELEVANCE TO THE QUESTION OF GRAND JURY SECRECY ARE:  SHERRY, GRAND
JURY MINUTES:  THE UNREASONABLE RULE OF SECRECY, 48 VA. L. REV. 668
(1962); AND CALKINS, GRAND JURY SECRECY, 63 MICH. L. REV. 455 (1965). 

FN18  NONE OF THE REASONS TRADITIONALLY ADVANCED TO JUSTIFY
NONDISCLOSURE OF GRAND JURY MINUTES (SEE MR. JUSTICE BRENNAN'S
DISSENTING OPINION IN PITTSBURGH PLATE GLASS, 360 U.S., AT 405) ARE
SIGNIFICANT HERE.  FOR CRITICISM OF THE TRADITIONAL ARGUMENTS AGAINST
DISCLOSURE, SEE BRENNAN, OP. CIT. SUPRA, NOTE 17; SHERRY, OP. CIT.
SUPRA, NOTE 17; CALKINS, OP. CIT. SUPRA, NOTE 17. 

FN19  "EVERY EXPERIENCED TRIAL JUDGE AND TRIAL LAWYER KNOWS THE VALUE
FOR IMPEACHING PURPOSES OF STATEMENTS OF THE WITNESS RECORDING THE
EVENTS BEFORE TIME DULLS TREACHEROUS MEMORY."  JENCKS V. UNITED STATES,
353 U.S. 657, 667. 

FN20  SEE, FOR EXAMPLE, ALFORD V. UNITED STATES, 282 U.S. 687, WHERE
THIS COURT REVERSED A TRIAL COURT'S RULING WHICH DEPRIVED DEFENSE
COUNSEL OF AN OPPORTUNITY TO INQUIRE INTO THE BACKGROUND OF AN
IMPORTANT GOVERNMENT WITNESS; UNITED STATES V. ANDOLSCHEK, 142 F.2D
503, 506 (C.A.2D CIR. 1944)(L. HAND, J.), WHERE IT WAS HELD THE
GOVERNMENT MUST PRODUCE REPORTS - OTHERWISE PRIVILEGED - UPON WHICH THE
PROSECUTION WAS BASED; UNITED STATES V. COPLON, 185 F.2D 629, 636-639
(C.A.2D CIR. 1960)(L. HAND, J.), CERT. DENIED, 342 U.S. 920, WHERE THE
COURT HELD THAT DEFENDANTS WERE THEMSELVES ENTITLED TO EXAMINE
UNLAWFULLY TAKEN TAPE-RECORDINGS OF TELEPHONE CONVERSATIONS ALTHOUGH
THE TRIAL JUDGE HAD DETERMINED THAT THESE RECORDINGS HAD NOT LED THE
GOVERNMENT TO EVIDENCE INTRODUCED AT TRIAL; AND PEOPLE V. RAMISTELLA,
306 N.Y. 379, 118 N.E.2D 566 (1954), WHERE THE COURT RULED THE STATE
COULD NOT USE EVIDENCE OF A SECRET IDENTIFICATION ON AN AUTOMOBILE TO
PROVE THAT THE AUTOMOBILE WAS STOLEN WHERE IT WAS UNWILLING THE
DISCLOSE THE LOCATION OF THE IDENTIFICATION MARK TO THE DEFENSE. 

FN21  UNITED STATES V. HERNANDEZ, 290 F.2D 86 (C.A.2D CIR. 1961);
UNITED STATES V. GIAMPA, 290 F.2D 83, 85 (C.A.2D CIR. 1961).  COMPARE
UNITED STATES V. MICELE, 327 F.2D 222, 226-227 (C.A.  7TH CIR. 1964);
OGDEN V. UNITED STATES, 303 F.2D 724, 741-742 (C.A. 9TH CIR. 1962);
UNITED STATES V. BERTUCCI, 333 F.2D 292, 297 (C.A. 3D CIR. 1964); BERRY
V. UNITED STATES, 295 F.2D 192, 195 (C.A. 8TH CIR. 1961). 

FN22  SEE ROSENBERG V. UNITED STATES, 360 U.S. 367, 371; UNITED
STATES V. COTTER, 60 F.2D 689, 692 (C.A.2D CIR. 1932)(L. HAND, J.);
UNITED STATES V. COPLON, 185 F.2D 629, 636-640 (C.A.2D CIR. 1950)(L.
HAND, J.), CERT. DENIED, 342 U.S. 920. 

MR. JUSTICE DOUGLAS, WHILE JOINING THE OPINION OF MR. JUSTICE BLACK,
ALSO JOINS PART III OF THE MAJORITY OPINION. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

THIS PROSECUTION, NOW APPROACHING ITS SECOND DECADE AND THIRD TRIAL,
IS A NATURAL OFFSPRING OF THE MCCARTHY ERA.  FOR REASONS SET OUT IN
PART III OF THE COURT'S OPINION I AGREE THAT IT WAS REVERSIBLE ERROR
FOR THE TRIAL COURT TO DENY PETITIONERS' MOTION TO EXAMINE THE GRAND
JURY MINUTES.  WHILE I DISAGREE WITH THE COURT'S HOLDING THAT THE
INDICTMENT STATES FACTS SUFFICIENT TO CHARGE THE OFFENSE OF DEFRAUDING
THE UNITED STATES IN VIOLATION OF 18 U.S.C.  SEC 371, I SHALL DEVOTE MY
ATTENTION IN THIS OPINION TO THE COURT'S HOLDING THAT PETITIONERS ARE
"IN NO POSITION TO ATTACK THE CONSTITUTIONALITY OF SEC 9(H)" OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE TAFT-HARTLEY ACT, AS A
BILL OF ATTAINDER.  I BELIEVE IT IS A FLAT DENIAL OF PROCEDURAL DUE
PROCESS OF LAW FOR THIS COURT TO ALLOW THESE PETITIONERS TO BE TRIED
FOR THE THIRD TIME WITHOUT PASSING ON THE VALIDITY OF SEC 9(H). 

                                             I. 

THE INDICTMENT CHARGES, AS IT WAS COMPELLED TO CHARGE IN ORDER TO
SHOW THAT THE OFFENSE OF CONSPIRING TO DEFRAUD THE GOVERNMENT HAD BEEN
COMMITTED, THAT THE PETITIONERS' ALLEGED FRAUD INTERFERED WITH "LAWFUL"
AND "PROPER" FUNCTIONS OF GOVERNMENT.  HAD THE INDICTMENT FAILED TO
CHARGE THAT THE FUNCTIONS OBSTRUCTED WERE "LAWFUL" AND "PROPER," IT
WOULD HAVE BEEN FATALLY DEFECTIVE UNDER OUR PRIOR CASES ACCEPTED BY THE
COURT TODAY WHICH STATE THAT AN ESSENTIAL ELEMENT OF THE CRIME OF
DEFRAUDING THE GOVERNMENT IS THE OBSTRUCTION OF A "LAWFUL" AND
"LEGITIMATE" GOVERNMENTAL FUNCTION.  UNITED STATES V. JOHNSON, 383 U.S.
169, 172; GLASSER V. UNITED STATES, 315 U.S. 60, 66; HAMMERSCHMIDT V.
UNITED STATES, 265 U.S. 182, 188; HAAS V. HENKEL, 216 U.S. 462, 479. 
ACCORDINGLY, IN HOLDING THAT PETITIONERS HAVE NO RIGHT TO CHALLENGE SEC
9(H), THE COURT MUST CONCLUDE THAT EVEN IF SEC 9(H) IS A BILL OF
ATTAINDER, PETITIONERS HAVE NEVERTHELESS CONSPIRED TO INTERFERE WITH
SOME LAWFUL AND LEGITIMATE FUNCTION OF GOVERNMENT.  YET THE COURT
NOWHERE POINTS OUT ANY GOVERNMENTAL FUNCTION THAT COULD HAVE BEEN
INTERFERED WITH BY THE FALSE AFFIDAVITS EXCEPT FUNCTIONS PERFORMED
UNDER SEC 9(H) WHICH THE COURT FOR PURPOSES OF THIS ARGUMENT ASSUMES IS
A BILL OF ATTAINDER.  BUT IF THE PROVISIONS OF SEC 9(H) REQUIRING NON
COMMUNIST AFFIDAVITS CONSTITUTE A BILL OF ATTAINDER THEN NO REQUIREMENT
OF THAT SECTION AND NO SERVICES PERFORMED OR REFUSED TO BE PERFORMED
UNDER IT CAN CONSTITUTE EITHER LAWFUL OR LEGITIMATE FUNCTIONS OF
GOVERNMENT.  AND SURELY IF SEC 9(H) IS A BILL OF ATTAINDER, THE FILING
OF ANY NON-COMMUNIST AFFIDAVITS UNDER SEC 9(H), WHETHER TRUE OR FALSE,
CANNOT BE SAID TO HAVE INTERFERED WITH ANY LAWFUL OR LEGITIMATE
FUNCTION OF THE LABOR BOARD.  IT WOULD INDEED BE STRANGE IF THE COURT
MEANS THAT IT IS A LAWFUL AND LEGITIMATE FUNCTION OF THE GOVERNMENT TO
ENFORCE AND CARRY OUT IN ANY PART A BILL OF ATTAINDER AGAINST THESE
PETITIONERS.  BUT IF THIS IS WHAT THE COURT MEANS, THEN IT FRUSTRATES
THE FRAMERS' INTENTION THAT A BILL OF ATTAINDER MUST NEVER BE GIVEN THE
SLIGHTEST VALIDITY OR EFFECT IN THIS FREE COUNTRY, EITHER DIRECTLY OR
INDIRECTLY. 

OUR GOVERNMENT HAS NOT HERETOFORE BEEN THOUGHT OF AS ONE WHICH SENDS
ITS CITIZENS TO PRISON WITHOUT GIVING THEM A CHANCE TO CHALLENGE
VALIDITY OF THE LAWS WHICH ARE THE VERY FOUNDATION UPON WHICH CRIMINAL
CHARGES AGAINST THEM REST.  YET THE COURT REFUSES TO ALLOW PETITIONERS
TO ATTACK SEC 9(H) ON THE GROUND THAT "THE CLAIMED INVALIDITY OF SEC
9(H) WOULD BE NO DEFENSE TO THE CRIME OF CONSPIRACY CHARGED IN THIS
INDICTMENT  ...  ."  IT IS INDEED A NOVEL DOCTRINE IF THE
UNCONSTITUTIONALITY OF A LAW WHICH FORMS THE VERY NUCLEUS OF A CRIMINAL
CHARGE CANNOT BE A DEFENSE TO THAT CHARGE.  CERTAINLY THE COURT DOES
NOT DENY THAT VIOLATION OF THE SEC 9(H) REQUIREMENT FOR NON-COMMUNIST
OATHS IS AN ESSENTIAL IF NOT INDEED THE ONLY INGREDIENT OF THE CRIME
FOR WHICH THE GOVERNMENT SEEKS TO PLACE PETITIONERS IN JAIL.  THE
INDICTMENT PROPERLY CHARGED UNLAWFUL COMPLIANCE WITH SEC 9(H) AS AN
ESSENTIAL ELEMENT, IF INDEED NOT THE WHOLE CRIME LAID AT PETITIONERS'
DOOR.  CONGRESS HAS PASSED NO LAW WHICH REQUIRES THE COURT TO REFUSE TO
CONSIDER PETITIONERS' CHALLENGE TO THE CONSTITUTIONALITY OF SEC 9(H). 
NOR ARE THERE ANY PRIOR CASES OF THIS COURT WHICH REQUIRE US TODAY TO
TELL CITIZENS THAT THE COURTS OF OUR LAND ARE NOT OPEN FOR THEM TO
CHALLENGE BILLS OF ATTAINDER UNDER WHICH THEY MAY BE SENT TO PRISON. 
THE HOLDING IS SOLELY AND EXCLUSIVELY A NEW COURT-MADE DOCTRINE. 

THE CASES RELIED ON BY THE MAJORITY CANNOT, IN MY JUDGMENT, PROPERLY
BE STRETCHED TO SUPPORT THE COURT'S HOLDING THAT PETITIONERS HAVE NO
RIGHT TO CHALLENGE SEC 9(H) AS A BILL OF ATTAINDER.  IN UNITED STATES
V. KAPP, 302 U.S. 214, RELIED ON BY THE COURT, THE DEFENDANTS CONSPIRED
THROUGH USE OF FALSE STATEMENTS TO SECURE BENEFIT PAYMENTS UNDER THE
AGRICULTURAL ADJUSTMENT ACT TO WHICH THEY WERE NOT ENTITLED UNDER THE
ACT ITSELF.  FOR THIS THEY WERE INDICTED.  AT TRIAL THEY CONTENDED THAT
THEY COULD NOT BE PROSECUTED BECAUSE THE AGRICULTURAL ADJUSTMENT ACT
HAD BEEN DECLARED UNCONSTITUTIONAL.  THIS COURT PROPERLY REJECTED THAT
DEFENSE.  IN THAT CASE KAPP WAS CONVICTED OF CONSPIRING TO GET MONEY
OUT OF THE TREASURY TO WHICH HE HAD NO POSSIBLE RIGHT WHETHER THE
STATUTE WAS CONSTITUTIONAL OR UNCONSTITUTIONAL.  THE ALLEGED CONSPIRACY
WAS TO DEFRAUD THE GOVERNMENT OF MONEY BY PEOPLE WHO, UNDER NO
CIRCUMSTANCES, HAD OR COULD HAVE HAD ANY LEGITIMATE CLAIM TO THE
MONEY.  SO ALSO IN KAY V. UNITED STATES, 303 U.S.1, AS IN KAPP, THE
DEFENDANTS MADE FALSE STATEMENTS IN ORDER TO GET BENEFITS FROM THE
GOVERNMENT WHICH WERE NOT DUE THEM WHETHER THE HOME OWNERS' LOAN ACT
WAS CONSTITUTIONAL OR UNCONSTITUTIONAL.  IN NONE OF THE OTHER CASES
RELIED ON BY THE COURT TODAY DO WE HAVE THE SITUATION PRESENT IN THIS
CASE.  HERE, IF SEC 9(H) IS UNCONSTITUTIONAL, PETITIONERS' UNION HAS
ALWAYS BEEN ENTITLED TO SERVICES OF THE LABOR BOARD BEFORE ANY
AFFIDAVITS WERE FILED, WHEN THEY WERE FILED, OR AFTER THEY WERE FILED. 
BY FILING FALSE AFFIDAVITS PETITIONERS GOT FOR THEIR UNION NO MORE THAN
IT WAS ENTITLED TO IF THE STATUTE IS UNCONSTITUTIONAL.  IN THIS
SITUATION IF SEC 9(H) IS A BILL OF ATTAINDER, THE GOVERNMENT HAS BEEN
DEPRIVED OF NOTHING AND DEFRAUDED OF NOTHING. 

LET US CONSIDER FOR A MOMENT OTHER SIMILAR CASES IN WHICH EFFORTS
MIGHT BE MADE TO DEPRIVE CITIZENS OF THEIR RIGHT TO CHALLENGE
UNCONSTITUTIONAL LAWS BEARING DOWN UPON THEM.  FOR EXAMPLE, WHAT IF A
STATE WANTED TO IMPOSE RACIAL OR RELIGIOUS QUALIFICATIONS FOR VOTING IN
VIOLATION OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS AND THAT STATE
REFUSED TO REGISTER PEOPLE TO VOTE UNTIL THEY HAD FILED AFFIDAVITS
SWEARING THAT THEY WERE NOT OF A PROSCRIBED COLOR OR RELIGION?  IF A
PERSON FILED A FALSE AFFIDAVIT UNDER SUCH A LAW COULD IT BE POSSIBLE
THAT THIS COURT WOULD HOLD THE PERSON HAD DEFRAUDED THE STATE OUT OF
SOMETHING IT WAS ENTITLED TO HAVE?  TAKE ANOTHER EXAMPLE.  ARTICLE VI
OF THE UNITED STATES CONSTITUTION PROVIDES THAT "  ...  NO RELIGIOUS
TEST SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY OFFICE OR PUBLIC
TRUST UNDER THE UNITED STATES."  SUPPOSE CONGRESS SHOULD PASS A LAW
REQUIRING CANDIDATES FOR PUBLIC OFFICE TO MAKE AFFIDAVITS THAT THEY DO
NOT BELONG TO A PARTICULAR CHURCH AND A CANDIDATE FALSELY DENIES HIS
MEMBERSHIP IN THAT CHURCH.  IS IT CONCEIVABLE THAT THIS COURT WOULD
PERMIT HIM TO BE BARRED FROM HIS OFFICE AND SENT TO PRISON ON THE
GROUND THAT THE GOVERNMENT HAD BEEN DEFRAUDED IN ITS "LAWFUL" AND
"LEGITIMATE" FUNCTIONS?  AND WHO WOULD IMAGINE THAT PEOPLE UNDER
INDICTMENT FOR DEFRAUDING THE GOVERNMENT BY MAKING FALSE AFFIDAVITS
REQUIRED BY THESE UNCONSTITUTIONAL ACTS WOULD BE DENIED IN A COURT OF
JUSTICE THE RIGHT TO CHALLENGE SUCH UNCONSTITUTIONAL LAWS?  THE COURT'S
REFUSAL TO ALLOW THESE PETITIONERS TO CHALLENGE THE CONSTITUTIONALITY
OF SEC 9(H), ON WHICH THE CHARGE AGAINST THEM ULTIMATELY RESTS, IS
HARDLY CONSISTENT WITH MADISON'S VIEW THAT "INDEPENDENT TRIBUNALS OF
JUSTICE  ...  WILL BE AN IMPENETRABLE BULWARK AGAINST EVERY ASSUMPTION
OF POWER IN THE LEGISLATIVE OR EXECUTIVE; THEY WILL BE NATURALLY LED TO
RESIST EVERY ENCROACHMENT UPON RIGHTS EXPRESSLY STIPULATED FOR IN THE
CONSTITUTION BY THE DECLARATION OF RIGHTS."  1 ANNALS OF CONGRESS 439
(1789). 

                              II. 

IN 1959 CONGRESS REPEALED SEC 9(H) OF THE NATIONAL LABOR RELATIONS
ACT AND ENACTED SEC 504 OF THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT.  73 STAT. 536, 29 U.S.C. SEC 504 (1964 ED.).  SECTION
504 MADE IT A CRIME FOR A MEMBER OF THE COMMUNIST PARTY TO SERVE AS AN
OFFICER OF A LABOR UNION.  LAST YEAR THIS COURT IN UNITED STATES V.
BROWN, 381 U.S. 437, HELD SEC 504 TO BE AN UNCONSTITUTIONAL BILL OF
ATTAINDER.  IN DOING SO, THE COURT SAID, "SECTION 504 WAS DESIGNED TO
ACCOMPLISH THE SAME PURPOSE AS SEC 9(H), BUT IN A MORE DIRECT AND
EFFECTIVE WAY."  381 U.S., AT 439, N.2.  IN THIS CASE THE GOVERNMENT
ARGUES WITH UNDERSTANDABLE BREVITY, FEEBLENESS AND UNPERSUASIVENESS
THAT THERE IS A CRUCIAL DISTINCTION BETWEEN SEC 504, WHICH IT HAS TO
ADMIT IS A BILL OF ATTAINDER, AND SEC 9(H) WHICH IT CONTENDS IS NOT. 
THIS ALLEGED CRUCIAL DISTINCTION AMOUNTS TO NO MORE THAN AN ASSERTION
THAT THE PUNISHMENT UNDER SEC 504 IS MORE SEVERE THAN THAT UNDER SEC
9(H).  THIS DISTINCTION IS HARD TO GRASP AND HARDER TO ACCEPT.  SECTION
504 MADE IT A CRIME FOR A COMMUNIST TO HOLD OFFICE IN A LABOR UNION. 
OFFICE, THOUGH IT REACHED THIS RESULT IN A DIFFERENT WAY.  SECTION 9(H)
PROVIDED THAT A UNION COULD NOT RECEIVE THE SERVICES OF THE LABOR BOARD
IF THE UNION HAD ANY COMMUNIST OFFICERS AND REQUIRED ALL UNION OFFICERS
TO FILE AFFIDAVITS STATING THEY WERE NOT COMMUNISTS AS A CONDITION OF
THEIR UNIONS' RECEIVING THE BOARD'S SERVICES.  THE PRACTICAL EFFECT OF
SEC 9(H) WAS THAT A UNION OFFICER WHO WAS A COMMUNIST WAS FORCED EITHER
TO FILE A FALSE AFFIDAVIT, FOR WHICH HE COULD HAVE BEEN PROSECUTED, OR
TO GIVE UP HIS OFFICE.  FOR THIS REASON THE DIFFERENCES BETWEEN SEC
9(H) AND SEC 504 UPON WHICH THE GOVERNMENT RELIES ARE TOO SLIGHT, TOO
INSUBSTANTIAL, AND TOO VAPORLIKE TO JUSTIFY THE CONCLUSION THAT ONE
SEC 504 WAS A BILL OF ATTAINDER BECAUSE IT ATTAINTED ALL COMMUNISTS AND
DECLARED THEM UNFIT TO HOLD OFFICE IN A LABOR UNION.  THE HEART OF THE
HOLDING IN BROWN WAS THAT COMMUNISTS HAD BEEN SO ATTAINTED THROUGH
LEGISLATIVE FINDINGS RATHER THAN A DUE PROCESS JUDICIAL TRIAL.  SECTION
9(H) AMOUNTS TO EXACTLY THE SAME SORT OF ATTAINDER BY LEGISLATIVE
FIAT.  IT WOULD BE A DISTINCT AND A QUICK RETREAT FROM BROWN TO HOLD
SEC 9(H) IS NOT A BILL OF ATTAINDER THOUGH ITS SUCCESSOR, IDENTICAL IN
PURPOSE AND PRACTICAL EFFECT, IS A BILL OF ATTAINDER.  I AM NOT WILLING
TO MAKE THIS RETREAT EITHER DIRECTLY, OR INDIRECTLY BY REFUSING TO FACE
THE ISSUE HERE AND NOW. 

PETITIONERS NOW FACE THEIR THIRD TRIAL AND POSSIBLE PRISON SENTENCES
JUST AS THOUGH THE COURT HAD TODAY UPHELD SEC 9(H).  I MUST SAY WITH
CONSIDERABLE REGRET THAT FUTURE HISTORIANS REPORTING THIS CASE MAY
JUSTIFIABLY DRAW AN INFERENCE THAT IT IS THE PETITIONERS, WHATEVER MAY
BE THEIR OFFENSE, AND NOT THE GOVERNMENT WHO HAVE BEEN DEFRAUDED.  FOR
PETITIONERS, IF CONVICTED AND SENTENCED AGAIN, UNLIKE THE GOVERNMENT,
ACTUALLY WILL HAVE BEEN DEPRIVED OF SOMETHING - THEIR FREEDOM.  THEY
WILL BE IN JAIL, HAVING BEEN DENIED BY THEIR GOVERNMENT THE RIGHT TO
CHALLENGE THE CONSTITUTIONALITY OF SEC 9(H) WHICH, WHEN IT IS
CHALLENGED, MUST IN MY JUDGMENT BE HELD TO BE THE CONSTITUTIONALLY
DOUBLY PROHIBITED FREEDOM-DESTROYING, LEGISLATIVE BILL OF ATTAINDER. 
..END :












CAVANAUGH V. CALIFORNIA 384 U.S. 882 


NO. 747, MISC.  DECIDED JUNE 20, 1966.  - 234 CAL. APP. 2D 316, 44 CAL.
RPTR.  422, APPEAL DISMISSED. 


CAVANAUGH V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED AS
MOOT. 
..END :
















LEON V. UNITED STATES 384 U.S. 882 


NO. 573.  DECIDED JUNE 20, 1966.  - CERTIORARI GRANTED; 120 U.S. APP.
D.C. 392, 347 F.2D 486, VACATED AND REMANDED. 


LEON V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF
DENNIS V. UNITED STATES, ANTE, P. 855
..END :















AMERICAN CANYON COUNTY V. PUBLIC UTILITIES COMMISSION 384 U.S. 883 


NO. 1215.  DECIDED JUNE 20, 1966.  - APPEAL DISMISSED. 


AMERICAN CANYON COUNTY WATER DISTRICT V. PUBLIC UTILITIES COMMISSION OF
CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















NATIONAL DAIRY PRODUCTS V. UNITED STATES 384 U.S. 883 


NO. 758.  DECIDED JUNE 20, 1966.  - CERTIORARI GRANTED; 350 F.2D 321,
VACATED AND REMANDED. 


NATIONAL DAIRY PRODUCTS CORP. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO TH UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF
DENNIS V. UNITED STATES, ANTE, P. 855. 
..END :















HALE V. NEW JERSEY 384 U.S. 884 


NO. 1502, MISC.  DECIDED JUNE 20, 1966.  - 45 N.J. 255, 212 A.2D 146,
APPEAL DISMISSED AND CERTIORARI DENIED. 


HALE V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS THE APPEAL IS GRANTED AND THE APPEAL IS
DISMISSED FOR WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE
APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS
DENIED. 
..END :















LUCIGNANO V. UNITED STATES 384 U.S. 884 


NO. 1058.  DECIDED JUNE 20, 1966.  - CERTIORARI GRANTED; 354 F.2D 1007,
VACATED AND REMANDED. 


LUCIGNANO ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENTS ARE
VACATED AND THE CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF
DENNIS V. UNITED STATES, ANTE, P. 855. 
..END :















LEVINE V. UNITED STATES 384 U.S. 885 


NO. 1326, MISC.  DECIDED JUNE 20, 1966.  - CERTIORARI GRANTED; 354 F.2D
568, VACATED AND REMANDED. 


LEVINE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR A FULL HEARING. 
..END :















ENGLAND V. LOUISIANA 384 U.S. 885 


NO. 1288.  DECIDED JUNE 20, 1966.  - 246 F. SUPP. 993, AFFIRMED. 


ENGLAND ET AL. V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 
..END :


















CASTALDI V. UNITED STATES 384 U.S. 886 


NO. 33.  DECIDED JUNE 20, 1966.* - CERTIORARI GRANTED; NO. 33, 338 F.2D
883; NO. 218, 343 F.2D 548, VACATED AND REMANDED. 

*TOGETHER WITH NO. 218, TRAMUNTI V. UNITED STATES, ALSO ON PETITION
FOR WRIT OF CERTIORARI TO THE SAME COURT. 


CASTALDI V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED.  THE JUDGMENTS ARE
VACATED AND THE CASES ARE REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK FOR FURTHER PROCEEDINGS IN THE
LIGHT OF SHILLITANI V. UNITED STATES, ANTE, P. 364. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS OPINION IN
CHEFF V. SCHNACKENBERG, ANTE, AT 380. 
..END :






LOMENZO V. WMCA, INC. 384 U.S. 887 


NO. 81.  DECIDED JUNE 20, 1966.  - 238 F. SUPP. 916, VACATED AS MOOT. 


LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL. V. WMCA, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

IN WMCA, INC. V. LOMENZO, 382 U.S.4, WE AFFIRMED A JUDGMENT OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
INSOFAR AS THERE APPEALED BY WMCA, INC., ET AL., THE APPELLEES IN THE
PRESENT CASE.  APPELLANTS IN THIS CASE, LOMENZO ET AL., CHALLENGE OTHER
ASPECTS OF THE SAME JUDGMENT, AND ALL PARTIES NOW AGREE THAT, AS TO
THOSE ASPECTS, THE JUDGMENT OF THE DISTRICT COURT HAS BEEN RENDERED
MOOT BY THE ACTIONS OF THE COURT OF APPEALS OF NEW YORK IN IN THE
MATTER OF ORANS, 17 N.Y.2D 107, 216 N.E.2D 311 (1966), AND IN THE
MATTER OF ORANS, 15 N.Y.2D 339, 206 N.E.2D 854, APPEAL DISMISSED 382
U.S. 10 (1965).  ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS
VACATED AS MOOT INSOFAR AS IT CONCERNS THE ISSUES HERE APPEALED,
NAMELY, WHETHER N.Y. LAWS 1964, CC. 977-978, 979, 981, ARE VIOLATIVE OF
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION, AND WHETHER THE DISTRICT COURT WAS ENTITLED TO RELY ON
PROVISIONS OF THE NEW YORK CONSTITUTION POSSIBLY AFFECTED BY THE ACTION
OF THIS COURT IN WMCA, INC. V. LOMENZO, 377 U.S. 633. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















UNITED STATES V. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. 384 U.S. 888 


NO. 576.  DECIDED JUNE 20, 1966.  - 238 F. SUPP. 528, PARTIALLY VACATED
AND REMANDED TO DISTRICT COURT WITH INSTRUCTIONS TO DISMISS PORTIONS OF
THE JUDGMENT AS MOOT. 


UNITED STATES ET AL. V. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

UPON CONSIDERATION OF THE MEMORANDUM OF CERTAIN APPELLEES AND AN
EXAMINATION OF THE ENTIRE RECORD, SO MUCH OF THE JUDGMENT OF THE
DISTRICT COURT AS RESPECTS THE PORTIONS OF THE ORDERS OF THE INTERSTATE
COMMERCE COMMISSION DATED MARCH 21, 1963, AND DECEMBER 31, 1963, AS
WERE VACATED BY ORDERS OF THE COMMISSION OF JANUARY 7, 1966, AND MARCH
17, 1966, AND TWO ORDERS OF APRIL 13, 1966, IS VACATED AND TO THAT
EXTENT THE CAUSE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO
DISMISS SUCH PORTIONS OF THE JUDGMENT AS MOOT. 

(FOR ORDER NOTING PROBABLE JURISDICTION, SEE 383 U.S. 964.) 
..END :







NEW JERSEY V. RUSSO 384 U.S. 889 


NO. 834.  DECIDED JUNE 20, 1966.  - CERTIORARI GRANTED; 351 F.2D 429,
VACATED AND REMANDED. 


NEW JERSEY ET AL. V. RUSSO ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE MOTION OF RESPONDENT FRANK BISIGNANO FOR LEAVE TO PROCEED IN
FORMA PAUPERIS IS GRANTED.  THE PETITION FOR A WRIT OF CERTIORARI IS
ALSO GRANTED AND THE JUDGMENT IS VACATED.  THE CASE IS REMANDED TO THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY FOR FURTHER
PROCEEDINGS IN LIGHT OF JOHNSON V. NEW JERSEY, ANTE, P. 719. 

MR. JUSTICE DOUGLAS DISSENTS FOR THE REASONS STATED IN THE DISSENTING
OPINION IN JOHNSON V. NEW JERSEY, ANTE, AT 736. 
..END :










BAINES V. CITY OF DANVILLE 384 U.S. 890 


NO. 959.  DECIDED JUNE 20, 1966.  - CERTIORARI GRANTED; 357 F.2D 756,
AFFIRMED. 


BAINES ET AL. V. CITY OF DANVILLE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE MOTIONS TO DISPENSE WITH PRINTING THE PETITION FOR A WRIT OF
CERTIORARI AND THE RESPONDENT'S BRIEF ARE GRANTED.  THE PETITION FOR
WRIT OF CERTIORARI IS ALSO GRANTED AND THE JUDGMENTS ARE AFFIRMED. 
CITY OF GREENWOOD V. PEACOCK, ANTE, P. 808. 

THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN AND MR.
JUSTICE FORTAS WOULD REVERSE THE JUDGMENTS FOR THE REASONS STATED IN
THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN CITY OF GREENWOOD V.
PEACOCK, ANTE, AT 835. 
..END :









WALLACE V. VIRGINIA 384 U.S. 891 


NO. 1011.  DECIDED JUNE 20, 1966.  - CERTIORARI GRANTED; 357 F.2D 105,
107, AFFIRMED. 


WALLACE ET AL. V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENTS
ARE AFFIRMED.  CITY OF GREENWOOD V. PEACOCK, ANTE, P. 808. 

THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN AND MR.
JUSTICE FORTAS WOULD REVERSE THE JUDGMENTS FOR THE REASONS STATED IN
THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN CITY OF GREENWOOD V.
PEACOCK, ANTE, AT 835. 
..END :











MILLER V. RHAY 384 U.S. 892 


NO. 1180.  DECIDED JUNE 20, 1966.  - VACATED AND REMANDED. 


MILLER V. RHAY, PENITENTIARY SUPERINTENDENT. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

IN LIGHT OF THE REPRESENTATIONS OF THE ATTORNEY GENERAL OF WASHINGTON
AND UPON AN EXAMINATION OF THE ENTIRE RECORD, THE MOTION TO REMAND IS
GRANTED.  THE JUDGMENT OF THE SUPREME COURT OF WASHINGTON IS VACATED
AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN
LIGHT OF ITS OPINION IN DILLENBURG V. MAXWELL, - WASH. 2D - , 413 P.2D
940. 
..END :














GRIFFIN V. MARYLAND 384 U.S. 893 


NO. 289, MISC.  DECIDED JUNE 20, 1966.  - CERTIORARI GRANTED; 238 MD.
149, 207 A.2D 632, VACATED AND REMANDED. 


GRIFFIN V. MARYLAND. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
MARYLAND. 

PER CURIAM. 

UPON CONSIDERATION OF THE ENTIRE RECORD AND THE CONSENT OF THE
ATTORNEY GENERAL OF MARYLAND, THE MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.   THE
MOTION TO REMAND IS ALSO GRANTED, THE JUDGMENT OF THE COURT OF APPEALS
OF MARYLAND IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER CONSIDERATION IN LIGHT OF ITS DECISIONS IN SCHOWGUROW V.
MARYLAND, 240 MD. 121, 213 A.2D 475, AND SMITH V. MARYLAND, 240 MD.
464, 214 A.2D 563.   THIS DISPOSITION OF THE CASE IS WITHOUT PREJUDICE
TO ANY OTHER QUESTIONS PRESENTED BY THE PETITION FOR A WRIT OF
CERTIORARI. 
..END :








WORTHY V. UNITED STATES 384 U.S. 894 


NO. 1107, MISC.  DECIDED JUNE 20, 1966.  - CERTIORARI GRANTED; 122 U.S.
APP. D.C. 242, 352 F.2D 718, VACATED AND REMANDED. 


WORTHY V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DENNIS V. UNITED
STATES, ANTE, P. 855. 
..END :














WHISMAN V. GEORGIA 384 U.S. 895 


NO. 1381, MISC.  DECIDED JUNE 20, 1966.  - 221 GA. 460, 145 S.E.2D 499,
APPEAL DISMISSED AND CERTIORARI DENIED. 


WHISMAN V. GEORGIA. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT CERTIORARI SHOULD BE
GRANTED AND THE JUDGMENT REVERSED.   HE WOULD REMAND THE CASE FOR A NEW
TRIAL, IT BEING CLEAR FROM THE RECORD THAT THE PRINCIPLES ANNOUNCED IN
MIRANDA V. ARIZONA, ANTE, P. 436, WERE NOT APPLIED.  HE SEES NO REASON
FOR DISCRIMINATING AGAINST THIS PETITIONER, THE CASE HAVING COME HERE
ON DIRECT REVIEW AND BEING OF THE SAME VINTAGE AS MIRANDA V. ARIZONA. 
SEE DISSENTING OPINION IN JOHNSON V. NEW JERSEY, ANTE, AT 736. 
..END :








MIRANDA V. ARIZONA 384 U.S. 436 


NO. 759.  ARGUED FEBRUARY 28-MARCH 1, 1966.  - DECIDED JUNE 13, 1966.* -
98 ARIZ. 18, 401 P.2D 721; 15 N.Y.2D 970, 207 N.E.2D 527; 16 N.Y.2D
614, 209 N.E.2D 110; 342 F.2D 684, REVERSED; 62 CAL. 2D 571, 400 P.2D
97, AFFIRMED. 

*TOGETHER WITH NO. 760, VIGNERA V. NEW YORK, ON CERTIORARI TO THE
COURT OF APPEALS OF NEW YORK AND NO. 761, WESTOVER V. UNITED STATES, ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT,
BOTH ARGUED FEBRUARY 28-MARCH 1, 1966; AND NO. 584, CALIFORNIA V.
STEWART, ON CERTIORARI TO THE SUPREME COURT OF CALIFORNIA, ARGUED
FEBRUARY 28-MARCH 2, 1966. 


IN EACH OF THESE CASES THE DEFENDANT WHILE IN POLICE CUSTODY WAS
QUESTIONED BY POLICE OFFICERS, DETECTIVES, OR A PROSECUTING ATTORNEY IN
A ROOM IN WHICH HE WAS CUT OFF FROM THE OUTSIDE WORLD.  NONE OF THE
DEFENDANTS WAS GIVEN A FULL AND EFFECTIVE WARNING OF HIS RIGHTS AT THE
OUTSET OF THE INTERROGATION PROCESS.  IN ALL FOUR CASES THE QUESTIONING
ELICITED ORAL ADMISSIONS, AND IN THREE OF THEM SIGNED STATEMENTS AS
WELL, WHICH WERE ADMITTED AT THEIR TRIALS.  ALL DEFENDANTS WERE
CONVICTED AND ALL CONVICTIONS, EXCEPT IN NO. 584, WERE AFFIRMED ON
APPEAL.  HELD: 

1.  THE PROSECUTION MAY NOT USE STATEMENTS, WHETHER EXCULPATORY OR
INCULPATORY, STEMMING FROM QUESTIONING INITIATED BY LAW ENFORCEMENT
OFFICERS AFTER A PERSON HAS BEEN TAKEN INTO CUSTODY OR OTHERWISE
DEPRIVED OF HIS FREEDOM OF ACTION IN ANY SIGNIFICANT WAY, UNLESS IT
DEMONSTRATES THE USE OF PROCEDURAL SAFEGUARDS EFFECTIVE TO SECURE THE
FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION.  PP. 444-491. 

(A)  THE ATMOSPHERE AND ENVIRONMENT OF INCOMMUNICADO INTERROGATION AS
IT EXISTS TODAY IS INHERENTLY INTIMIDATING AND WORKS TO UNDERMINE THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  UNLESS ADEQUATE PREVENTIVE
MEASURES ARE TAKEN TO DISPEL THE COMPULSION INHERENT IN CUSTODIAL
SURROUNDINGS, NO STATEMENT OBTAINED FROM THE DEFENDANT CAN TRULY BE THE
PRODUCT OF HIS FREE CHOICE.  PP. 445-458. 

(B)  THE PRIVILEGE AGAINST SELF-INCRIMINATION, WHICH HAS HAD A LONG
AND EXPANSIVE HISTORICAL DEVELOPMENT, IS THE ESSENTIAL MAINSTAY OF OUR
ADVERSARY SYSTEM AND GUARANTEES TO THE INDIVIDUAL THE "RIGHT TO REMAIN
SILENT UNLESS HE CHOOSES TO SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN
WILL," DURING A PERIOD OF CUSTODIAL INTERROGATION AS WELL AS IN THE
COURTS OR DURING THE COURSE OF OTHER OFFICIAL INVESTIGATIONS.  PP. 458
465. 

(C)  THE DECISION IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, STRESSED THE
NEED FOR PROTECTIVE DEVICES TO MAKE THE PROCESS OF POLICE INTERROGATION
CONFORM TO THE DICTATES OF THE PRIVILEGE.  PP. 465-466. 

(D)  IN THE ABSENCE OF OTHER EFFECTIVE MEASURES THE FOLLOWING
PROCEDURES TO SAFEGUARD THE FIFTH AMENDMENT PRIVILEGE MUST BE OBSERVED:
THE PERSON IN CUSTODY MUST, PRIOR TO INTERROGATION, BE CLEARLY
INFORMED THAT HE HAS THE RIGHT TO REMAIN SILENT, AND THAT ANYTHING HE
SAYS WILL BE USED AGAINST HIM IN COURT; HE MUST BE CLEARLY INFORMED
THAT HE HAS THE RIGHT TO CONSULT WITH A LAWYER AND TO HAVE THE LAWYER
WITH HIM DURING INTERROGATION, AND THAT, IF HE IS INDIGENT, A LAWYER
WILL BE APPOINTED TO REPRESENT HIM.  PP. 467-473. 

(E)  IF THE INDIVIDUAL INDICATES, PRIOR TO OR DURING QUESTIONING,
THAT HE WISHES TO REMAIN SILENT, THE INTERROGATION MUST CEASE; IF HE
STATES THAT HE WANTS AN ATTORNEY, THE QUESTIONING MUST CEASE UNTIL AN
ATTORNEY IS PRESENT.  PP. 473-474. 

(F)  WHERE AN INTERROGATION IS CONDUCTED WITHOUT THE PRESENCE OF AN
ATTORNEY AND A STATEMENT IS TAKEN, A HEAVY BURDEN RESTS ON THE
GOVERNMENT TO DEMONSTRATE THAT THE DEFENDANT KNOWINGLY AND
INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL.  P. 475. 

(G)  WHERE THE INDIVIDUAL ANSWERS SOME QUESTIONS DURING IN-CUSTODY
INTERROGATION HE WAS NOT WAIVED HIS PRIVILEGE AND MAY INVOKE HIS RIGHT
TO REMAIN SILENT THEREAFTER.  PP. 475-476. 

(H)  THE WARNINGS REQUIRED AND THE WAIVER NEEDED ARE, IN THE ABSENCE
OF A FULLY EFFECTIVE EQUIVALENT, PREREQUISITES TO THE ADMISSIBILITY OF
ANY STATEMENT, INCULPATORY OR EXCULPATORY, MADE BY A DEFENDANT.  PP.
476-477. 

2.  THE LIMITATIONS ON THE INTERROGATION PROCESS REQUIRED FOR THE
PROTECTION OF THE INDIVIDUAL'S CONSTITUTIONAL RIGHTS SHOULD NOT CAUSE
AN UNDUE INTERFERENCE WITH A PROPER SYSTEM OF LAW ENFORCEMENT, AS
DEMONSTRATED BY THE PROCEDURES OF THE FBI AND THE SAFEGUARDS AFFORDED
IN OTHER JURISDICTIONS.  PP. 479-491. 

3.  IN EACH OF THESE CASES THE STATEMENTS WERE OBTAINED UNDER
CIRCUMSTANCES THAT DID NOT MEET CONSTITUTIONAL STANDARDS FOR PROTECTION
OF THE PRIVILEGE AGAINST SELF-INCRIMINATION.  PP. 491-499. 

MIRANDA V. ARIZONA. 

CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE CASES BEFORE US RAISE QUESTIONS WHICH GO TO THE ROOTS OF OUR
CONCEPTS OF AMERICAN CRIMINAL JURISPRUDENCE:  THE RESTRAINTS SOCIETY
MUST OBSERVE CONSISTENT WITH THE FEDERAL CONSTITUTION IN PROSECUTING
INDIVIDUALS FOR CRIME.  MORE SPECIFICALLY, WE DEAL WITH THE
ADMISSIBILITY OF STATEMENTS OBTAINED FROM AN INDIVIDUAL WHO IS
SUBJECTED TO CUSTODIAL POLICE INTERROGATION AND THE NECESSITY FOR
PROCEDURES WHICH ASSURE THAT THE INDIVIDUAL IS ACCORDED HIS PRIVILEGE
UNDER THE FIFTH AMENDMENT TO THE CONSTITUTION NOT TO BE COMPELLED TO
INCRIMINATE HIMSELF. 

WE DEALT WITH CERTAIN PHASES OF THIS PROBLEM RECENTLY IN ESCOBEDO V.
ILLINOIS, 378 U.S. 478 (1964).  THERE, AS IN THE FOUR CASES BEFORE US,
LAW ENFORCEMENT OFFICIALS TOOK THE DEFENDANT INTO CUSTODY AND
INTERROGATED HIM IN A POLICE STATION FOR THE PURPOSE OF OBTAINING A
CONFESSION.  THE POLICE DID NOT EFFECTIVELY ADVISE HIM OF HIS RIGHT TO
REMAIN SILENT OR OF HIS RIGHT TO CONSULT WITH HIS ATTORNEY.  RATHER,
THEY CONFRONTED HIM WITH AN ALLEGED ACCOMPLICE WHO ACCUSED HIM OF
HAVING PERPETRATED A MURDER.  WHEN THE DEFENDANT DENIED THE ACCUSATION
AND SAID "I DIDN'T SHOOT MANUEL, YOU DID IT," THEY HANDCUFFED HIM AND
TOOK HIM TO AN INTERROGATION ROOM.  THERE, WHILE HANDCUFFED AND
STANDING, HE WAS QUESTIONED FOR FOUR HOURS UNTIL HE CONFESSED.  DURING
THIS INTERROGATION, THE POLICE DENIED HIS REQUEST TO SPEAK TO HIS
ATTORNEY, AND THEY PREVENTED HIS RETAINED ATTORNEY, WHO HAD COME TO THE
POLICE STATION, FROM CONSULTING WITH HIM.  AT HIS TRIAL, THE STATE,
OVER HIS OBJECTION, INTRODUCED THE CONFESSION AGAINST HIM.  WE HELD
THAT THE STATEMENTS THUS MADE WERE CONSTITUTIONALLY INADMISSIBLE. 

THIS CASE HAS BEEN THE SUBJECT OF JUDICIAL INTERPRETATION AND
SPIRITED LEGAL DEBATE SINCE IT WAS DECIDED TWO YEARS AGO.  BOTH STATE
AND FEDERAL COURTS, IN ASSESSING ITS IMPLICATIONS, HAVE ARRIVED AT
VARYING CONCLUSIONS.  (FN1)  A WEALTH OF SCHOLARLY MATERIAL HAS BEEN
WRITTEN TRACING ITS RAMIFICATIONS AND UNDERPINNINGS.  (FN2)  POLICE AND
PROSECUTOR HAVE SPECULATED ON ITS RANGE AND DESIRABILITY.  (FN3)  WE
GRANTED CERTIORARI IN THESE CASES, 382 U.S. 924, 925, 937, IN ORDER
FURTHER TO EXPLORE SOME FACETS OF THE PROBLEMS, THUS EXPOSED, OF
APPLYING THE PRIVILEGE AGAINST SELF-INCRIMINATION TO IN-CUSTODY
INTERROGATION, AND TO GIVE CONCRETE CONSTITUTIONAL GUIDELINES FOR LAW
ENFORCEMENT AGENCIES AND COURTS TO FOLLOW. 

WE START HERE, AS WE DID IN ESCOBEDO, WITH THE PREMISE THAT OUR
HOLDING IS NOT AN INNOVATION IN OUR JURISPRUDENCE, BUT IS AN
APPLICATION OF PRINCIPLES LONG RECOGNIZED AND APPLIED IN OTHER
SETTINGS.  WE HAVE UNDERTAKEN A THOROUGH RE-EXAMINATION OF THE ESCOBEDO
DECISION AND THE PRINCIPLES IT ANNOUNCED, AND WE REAFFIRM IT. THAT CASE
WAS BUT AN EXPLICATION OF BASIC RIGHTS THAT ARE ENSHRINED IN OUR
CONSTITUTION - THAT "NO PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL
CASE TO BE A WITNESS AGAINST HIMSELF," AND THAT "THE ACCUSED SHALL  ...
HAVE THE ASSISTANCE OF COUNSEL" - RIGHTS WHICH WERE PUT IN JEOPARDY IN
THAT CASE THROUGH OFFICIAL OVERBEARING.  THESE PRECIOUS RIGHTS WERE
FIXED IN OUR CONSTITUTION ONLY AFTER CENTURIES OF PERSECUTION AND
STRUGGLE.  AND IN THE WORDS OF CHIEF JUSTICE MARSHALL, THEY WERE
SECURED "FOR AGES TO COME, AND  ...  DESIGNED TO APPROACH IMMORTALITY
AS NEARLY AS HUMAN INSTITUTIONS CAN APPROACH IT," COHENS V. VIRGINIA, 6
WHEAT.  264, 387 (1821). 

OVER 70 YEARS AGO, OUR PREDECESSORS ON THIS COURT ELOQUENTLY STATED: 

"THE MAXIM NEMO TENETUR SEIPSUM ACCUSARE HAD ITS ORIGIN IN A PROTEST
AGAINST THE INQUISITORIAL AND MANIFESTLY UNJUST METHODS OF
INTERROGATING ACCUSED PERSONS, WHICH HAVE LONG OBTAINED IN THE
CONTINENTAL SYSTEM, AND, UNTIL THE EXPULSION OF THE STUARTS FROM THE
BRITISH THRONE IN 1688, AND THE ERECTION OF ADDITIONAL BARRIERS FOR THE
PROTECTION OF THE PEOPLE AGAINST THE EXERCISE OF ARBITRARY POWER, WERE
NOT UNCOMMON EVEN IN ENGLAND.  WHILE THE ADMISSIONS OR CONFESSIONS OF
THE PRISONER, WHEN VOLUNTARILY AND FREELY MADE, HAVE ALWAYS RANKED HIGH
IN THE SCALE OF INCRIMINATING EVIDENCE, IF AN ACCUSED PERSON BE ASKED
TO EXPLAIN HIS APPARENT CONNECTION WITH A CRIME UNDER INVESTIGATION,
THE EASE WITH WHICH THE QUESTIONS PUT TO HIM MAY ASSUME AN
INQUISITORIAL CHARACTER, THE TEMPTATION TO PRESS THE WITNESS UNDULY, TO
BROWBEAT HIM IF HE BE TIMID OR RELUCTANT, TO PUSH HIM INTO A CORNER,
AND TO ENTRAP HIM INTO FATAL CONTRADICTIONS, WHICH IS SO PAINFULLY
EVIDENT IN MANY OF THE EARLIER STATE TRIALS, NOTABLY IN THOSE OF SIR
NICHOLAS THROCKMORTON, AND UDAL, THE PURITAN MINISTER, MADE THE SYSTEM
SO ODIOUS AS TO GIVE RISE TO A DEMAND FOR ITS TOTAL ABOLITION.  THE
CHANGE IN THE ENGLISH CRIMINAL PROCEDURE IN THAT PARTICULAR SEEMS TO BE
FOUNDED UPON NO STATUTE AND NO JUDICIAL OPINION, BUT UPON A GENERAL AND
SILENT ACQUIESCENCE OF THE COURTS IN A POPULAR DEMAND.  BUT, HOWEVER
ADOPTED, IT HAS BECOME FIRMLY EMBEDDED IN ENGLISH, AS WELL AS IN
AMERICAN JURISPRUDENCE.  SO DEEPLY DID THE INIQUITIES OF THE ANCIENT
SYSTEM IMPRESS THEMSELVES UPON THE MINDS OF THE AMERICAN COLONISTS THAT
THE STATES, WITH ONE ACCORD, MADE A DENIAL OF THE RIGHT TO QUESTION AN
ACCUSED PERSON A PART OF THEIR FUNDAMENTAL LAW, SO THAT A MAXIM, WHICH
IN ENGLAND WAS A MERE RULE OF EVIDENCE, BECAME CLOTHED IN THIS COUNTRY
WITH THE IMPREGNABILITY OF A CONSTITUTIONAL ENACTMENT."  BROWN V.
WALKER, 161 U.S. 591, 596-597 (1896). 

IN STATING THE OBLIGATION OF THE JUDICIARY TO APPLY THESE
CONSTITUTIONAL RIGHTS, THIS COURT DECLARED IN WEEMS V. UNITED STATES,
217 U.S. 349, 373 (1910): 

"  ...  OUR CONTEMPLATION CANNOT BE ONLY OF WHAT HAS BEEN BUT OF WHAT
MAY BE.  UNDER ANY OTHER RULE A CONSTITUTION WOULD INDEED BE AS EASY OF
APPLICATION AS IT WOULD BE DEFICIENT IN EFFICACY AND POWER.  ITS
GENERAL PRINCIPLES WOULD HAVE LITTLE VALUE AND BE CONVERTED BY
PRECEDENT INTO IMPOTENT AND LIFELESS FORMULAS.  RIGHTS DECLARED IN
WORDS MIGHT BE LOST IN REALITY.  AND THIS HAS BEEN RECOGNIZED.  THE
MEANING AND VITALITY OF THE CONSTITUTION HAVE DEVELOPED AGAINST NARROW
AND RESTRICTIVE CONSTRUCTION." 

THIS WAS THE SPIRIT IN WHICH WE DELINEATED, IN MEANINGFUL LANGUAGE,
THE MANNER IN WHICH THE CONSTITUTIONAL RIGHTS OF THE INDIVIDUAL COULD
BE ENFORCED AGAINST OVERZEALOUS POLICE PRACTICES.  IT WAS NECESSARY IN
ESCOBEDO, AS HERE, TO INSURE THAT WHAT WAS PROCLAIMED IN THE
CONSTITUTION HAD NOT BECOME BUT A "FORM OF WORDS," SILVERTHORNE LUMBER
CO. V. UNITED STATES, 251 U.S. 385, 392 (1920), IN THE HANDS OF
GOVERNMENT OFFICIALS.  AND IT IS IN THIS SPIRIT, CONSISTENT WITH OUR
ROLE AS JUDGES, THAT WE ADHERE TO THE PRINCIPLES OF ESCOBEDO TODAY. 

OUR HOLDING WILL BE SPELLED OUT WITH SOME SPECIFICITY IN THE PAGES
WHICH FOLLOW BUT BRIEFLY STATED IT IS THIS:  THE PROSECUTION MAY NOT
USE STATEMENTS, WHETHER EXCULPATORY OR INCULPATORY, STEMMING FROM
CUSTODIAL INTERROGATION OF THE DEFENDANT UNLESS IT DEMONSTRATES THE USE
OF PROCEDURAL SAFEGUARDS EFFECTIVE TO SECURE THE PRIVILEGE AGAINST SELF
INCRIMINATION.  BY CUSTODIAL INTERROGATION, WE MEAN QUESTIONING
INITIATED BY LAW ENFORCEMENT OFFICERS AFTER A PERSON HAS BEEN TAKEN
INTO CUSTODY OR OTHERWISE DEPRIVED OF HIS FREEDOM OF ACTION IN ANY
SIGNIFICANT WAY.  (FN4)  AS FOR THE PROCEDURAL SAFEGUARDS TO BE
EMPLOYED, UNLESS OTHER FULLY EFFECTIVE MEANS ARE DEVISED TO INFORM
ACCUSED PERSONS OF THEIR RIGHT OF SILENCE AND TO ASSURE A CONTINUOUS
OPPORTUNITY TO EXERCISE IT, THE FOLLOWING MEASURES ARE REQUIRED.  PRIOR
TO ANY QUESTIONING, THE PERSON MUST BE WARNED THAT HE HAS A RIGHT TO
REMAIN SILENT, THAT ANY STATEMENT HE DOES MAKE MAY BE USED AS EVIDENCE
AGAINST HIM, AND THAT HE HAS A RIGHT TO THE PRESENCE OF AN ATTORNEY,
EITHER RETAINED OR APPOINTED.  THE DEFENDANT MAY WAIVE EFFECTUATION OF
THESE RIGHTS, PROVIDED THE WAIVER IS MADE VOLUNTARILY, KNOWINGLY AND
INTELLIGENTLY.  IF, HOWEVER, HE INDICATES IN ANY MANNER AT ANY STAGE OF
THE PROCESS THAT HE WISHES TO CONSULT WITH AN ATTORNEY BEFORE SPEAKING
THERE CAN BE NO QUESTIONING.  LIKEWISE, IF THE INDIVIDUAL IS ALONE AND
INDICATES IN ANY MANNER THAT HE DOES NOT WISH TO BE INTERROGATED, THE
POLICE MAY NOT QUESTION HIM.  THE MERE FACT THAT HE MAY HAVE ANSWERED
SOME QUESTIONS OR VOLUNTEERED SOME STATEMENTS ON HIS OWN DOES NOT
DEPRIVE HIM OF THE RIGHT TO REFRAIN FROM ANSWERING ANY FURTHER
INQUIRIES UNTIL HE HAS CONSULTED WITH AN ATTORNEY AND THEREAFTER
CONSENTS TO BE QUESTIONED. 

                         I. 

THE CONSTITUTIONAL ISSUE WE DECIDE IN EACH OF THESE CASES IS THE
ADMISSIBILITY OF STATEMENTS OBTAINED FROM A DEFENDANT QUESTIONED WHILE
IN CUSTODY OR OTHERWISE DEPRIVED OF HIS FREEDOM OF ACTION IN ANY
SIGNIFICANT WAY.  IN EACH, THE DEFENDANT WAS QUESTIONED BY POLICE
OFFICERS, DETECTIVES, OR A PROSECUTING ATTORNEY IN A ROOM IN WHICH HE
WAS CUT OFF FROM THE OUTSIDE WORLD.  IN NONE OF THESE CASES WAS THE
DEFENDANT GIVEN A FULL AND EFFECTIVE WARNING OF HIS RIGHTS AT THE
OUTSET OF THE INTERROGATION PROCESS.  IN ALL THE CASES, THE QUESTIONING
ELICITED ORAL ADMISSIONS, AND IN THREE OF THEM, SIGNED STATEMENTS AS
WELL WHICH WERE ADMITTED AT THEIR TRIALS.  THEY ALL THUS SHARED SALIENT
FEATURES - INCOMMUNICADO INTERROGATION OF INDIVIDUALS IN A POLICE
DOMINATED ATMOSPHERE, RESULTING IN SELF-INCRIMINATING STATEMENTS
WITHOUT FULL WARNINGS OF CONSTITUTIONAL RIGHTS. 

AN UNDERSTANDING OF THE NATURE AND SETTING OF THIS IN-CUSTODY
INTERROGATION IS ESSENTIAL TO OUR DECISIONS TODAY.  THE DIFFICULTY IN
DEPICTING WHAT TRANSPIRES AT SUCH INTERROGATIONS STEMS FROM THE FACT
THAT IN THIS COUNTRY THEY HAVE LARGELY TAKEN PLACE INCOMMUNICADO.  FROM
EXTENSIVE FACTUAL STUDIES UNDERTAKEN IN THE EARLY 1930'S, INCLUDING THE
FAMOUS WICKERSHAM REPORT TO CONGRESS BY A PRESIDENTIAL COMMISSION, IT
IS CLEAR THAT POLICE VIOLENCE AND THE "THIRD DEGREE" FLOURISHED AT THAT
TIME.  (FN5)  IN A SERIES OF CASES DECIDED BY THIS COURT LONG AFTER
THESE STUDIES, THE POLICE RESORTED TO PHYSICAL BRUTALITY - BEATING,
HANGING, WHIPPING - AND TO SUSTAINED AND PROTRACTED QUESTIONING
INCOMMUNICADO IN ORDER TO EXTORT CONFESSIONS.  (FN6)  THE COMMISSION ON
CIVIL RIGHTS IN 1961 FOUND MUCH EVIDENCE TO INDICATE THAT "SOME
POLICEMEN STILL RESORT TO PHYSICAL FORCE TO OBTAIN CONFESSIONS," 1961
COMM'N ON CIVIL RIGHTS REP., JUSTICE, PT. 5, 17.  THE USE OF PHYSICAL
BRUTALITY AND VIOLENCE IS NOT, UNFORTUNATELY, RELEGATED TO THE PAST OR
TO ANY PART OF THE COUNTRY.  ONLY RECENTLY IN KINGS COUNTY, NEW YORK,
THE POLICE BRUTALLY BEAT, KICKED AND PLACED LIGHTED CIGARETTE BUTTS ON
THE BACK OF A POTENTIAL WITNESS UNDER INTERROGATION FOR THE PURPOSE OF
SECURING A STATEMENT INCRIMINATING A THIRD PARTY.  PEOPLE V. PORTELLI,
15 N.Y.2D 235, 205 N.E.2D 857, 257 N.Y.S.2D 931 (1965).  (FN7) 

THE EXAMPLES GIVEN ABOVE ARE UNDOUBTEDLY THE EXCEPTION NOW, BUT THEY
ARE SUFFICIENTLY WIDESPREAD TO BE THE OBJECT OF CONCERN.  UNLESS A
PROPER LIMITATION UPON CUSTODIAL INTERROGATION IS ACHIEVED - SUCH AS
THESE DECISIONS WILL ADVANCE - THERE CAN BE NO ASSURANCE THAT PRACTICES
OF THIS NATURE WILL BE ERADICATED IN THE FORESEEABLE FUTURE.  THE
CONCLUSION OF THE WICKERSHAM COMMISSION REPORT, MADE OVER 30 YEARS AGO,
IS STILL PERTINENT: 

"TO THE CONTENTION THAT THE THIRD DEGREE IS NECESSARY TO GET THE
FACTS, THE REPORTERS APTLY REPLY IN THE LANGUAGE OF THE PRESENT LORD
CHANCELLOR OF ENGLAND (LORD SANKEY): 'IT IS NOT ADMISSIBLE TO DO A
GREAT RIGHT BY DOING A LITTLE WRONG  ...  .   IT IS NOT SUFFICIENT TO
DO JUSTICE BY OBTAINING A PROPER RESULT BY IRREGULAR OR IMPROPER
MEANS.'  NOT ONLY DOES THE USE OF THE THIRD DEGREE INVOLVE A FLAGRANT
VIOLATION OF LAW BY THE OFFICERS OF THE LAW, BUT IT INVOLVES ALSO THE
DANGERS OF FALSE CONFESSIONS, AND IT TENDS TO MAKE POLICE AND
PROSECUTORS LESS ZEALOUS IN THE SEARCH FOR OBJECTIVE EVIDENCE.  AS THE
NEW YORK PROSECUTOR QUOTED IN THE REPORT SAID, 'IT IS A SHORT CUT AND
MAKES THE POLICE LAZY AND UNENTERPRISING.'  OR, AS ANOTHER OFFICIAL
QUOTED REMARKED:  'IF YOU USE YOUR FISTS, YOU ARE NOT SO LIKELY TO USE
YOUR WITS.'  WE AGREE WITH THE CONCLUSION EXPRESSED IN THE REPORT, THAT
'THE THIRD DEGREE BRUTALIZES THE POLICE, HARDENS THE PRISONER AGAINST
SOCIETY, AND LOWERS THE ESTEEM IN WHICH THE ADMINISTRATION OF JUSTICE
IS HELD BY THE PUBLIC.'"  IV NATIONAL COMMISSION ON LAW OBSERVANCE AND
ENFORCEMENT, REPORT ON LAWLESSNESS IN LAW ENFORCEMENT 5 (1931). 

AGAIN WE STRESS THAT THE MODERN PRACTICE OF IN-CUSTODY INTERROGATION
IS PSYCHOLOGICALLY RATHER THAN PHYSICALLY ORIENTED.  AS WE HAVE STATED
BEFORE, "SINCE CHAMBERS V. FLORIDA, 309 U.S. 227, THIS COURT HAS
RECOGNIZED THAT COERCION CAN BE MENTAL AS WELL AS PHYSICAL, AND THAT
THE BLOOD OF THE ACCUSED IS NOT THE ONLY HALLMARK OF AN
UNCONSTITUTIONAL INQUISITION."  BLACKBURN V. ALABAMA, 361 U.S. 199, 206
(1960).  INTERROGATION STILL TAKES PLACE IN PRIVACY.  PRIVACY RESULTS
IN SECRECY AND THIS IN TURN RESULTS IN A GAP IN OUR KNOWLEDGE AS TO
WHAT IN FACT GOES ON IN THE INTERROGATION ROOMS.  A VALUABLE SOURCE OF
INFORMATION ABOUT PRESENT POLICE PRACTICES, HOWEVER, MAY BE FOUND IN
VARIOUS POLICE MANUALS AND TEXTS WHICH DOCUMENT PROCEDURES EMPLOYED
WITH SUCCESS IN THE PAST, AND WHICH RECOMMEND VARIOUS OTHER EFFECTIVE
TACTICS.  (FN8)  THESE TEXTS ARE USED BY LAW ENFORCEMENT AGENCIES
THEMSELVES AS GUIDES.  (FN9)  IT SHOULD BE NOTED THAT THESE TEXTS
PROFESSEDLY PRESENT THE MOST ENLIGHTENED AND EFFECTIVE MEANS PRESENTLY
USED TO OBTAIN STATEMENTS THROUGH CUSTODIAL INTERROGATION.   BY
CONSIDERING THESE TEXTS AND OTHER DATA, IT IS POSSIBLE TO DESCRIBE
PROCEDURES OBSERVED AND NOTED AROUND THE COUNTRY.    THE OFFICERS ARE
TOLD BY THE MANUALS THAT THE "PRINCIPAL PSYCHOLOGICAL FACTOR
CONTRIBUTING TO A SUCCESSFUL INTERROGATION IS PRIVACY - BEING ALONE
WITH THE PERSON UNDER INTERROGATION."  (FN10)  THE EFFICACY OF THIS
TACTIC HAS BEEN EXPLAINED AS FOLLOWS:    "IF AT ALL PRACTICABLE, THE
INTERROGATION SHOULD TAKE PLACE IN THE INVESTIGATOR'S OFFICE OR AT
LEAST IN A ROOM OF HIS OWN CHOICE.  THE SUBJECT SHOULD BE DEPRIVED OF
EVERY PSYCHOLOGICAL ADVANTAGE.   IN HIS OWN HOME HE MAY BE CONFIDENT,
INDIGNANT, OR RECALCITRANT.  HE IS MORE KEENLY AWARE OF HIS RIGHTS AND
MORE RELUCTANT TO TELL OF HIS INDISCRETIONS OR CRIMINAL BEHAVIOR WITHIN
THE WALLS OF HIS HOME.  MOREOVER HIS FAMILY AND OTHER FRIENDS ARE
NEARBY, THEIR PRESENCE LENDING MORAL SUPPORT.  IN HIS OWN OFFICE, THE
INVESTIGATOR POSSESSES ALL THE ADVANTAGES.  THE ATMOSPHERE SUGGESTS THE
INVINCIBILITY OF THE FORCES OF THE LAW."  (FN11) 

TO HIGHLIGHT THE ISOLATION AND UNFAMILIAR SURROUNDINGS, THE MANUALS
INSTRUCT THE POLICE TO DISPLAY AN AIR OF CONFIDENCE IN THE SUSPECT'S
GUILT AND FROM OUTWARD APPEARANCE TO MAINTAIN ONLY AN INTEREST IN
CONFIRMING CERTAIN DETAILS.  THE GUILT OF THE SUBJECT IS TO BE POSITED
AS A FACT.  THE INTERROGATOR SHOULD DIRECT HIS COMMENTS TOWARD THE
REASONS WHY THE SUBJECT COMMITTED THE ACT, RATHER THAN COURT FAILURE BY
ASKING THE SUBJECT WHETHER HE DID IT.  LIKE OTHER MEN, PERHAPS THE
SUBJECT HAS HAD A BAD FAMILY LIFE, HAD AN UNHAPPY CHILDHOOD, HAD TOO
MUCH TO DRINK, HAD AN UNREQUITED DESIRE FOR WOMEN.  THE OFFICERS ARE
INSTRUCTED TO MINIMIZE THE MORAL SERIOUSNESS OF THE OFFENSE,  (FN12) TO
CAST BLAME ON THE VICTIM OR ON SOCIETY.  (FN13)  THESE TACTICS ARE
DESIGNED TO PUT THE SUBJECT IN A PSYCHOLOGICAL STATE WHERE HIS STORY IS
BUT AN ELABORATION OF WHAT THE POLICE PURPORT TO KNOW ALREADY - THAT HE
IS GUILTY.  EXPLANATIONS TO THE CONTRARY ARE DISMISSED AND
DISCOURAGED. 

THE TEXTS THUS STRESS THAT THE MAJOR QUALITIES AN INTERROGATOR SHOULD
POSSESS ARE PATIENCE AND PERSERVERANCE.  ONE WRITER DESCRIBES THE
EFFICACY OF THESE CHARACTERISTICS IN THIS MANNER: 

"IN THE PRECEDING PARAGRAPHS EMPHASIS HAS BEEN PLACED ON KINDNESS AND
STRATAGEMS.  THE INVESTIGATOR WILL, HOWEVER, ENCOUNTER MANY SITUATIONS
WHERE THE SHEER WEIGHT OF HIS PERSONALITY WILL BE THE DECIDING FACTOR. 
WHERE EMOTIONAL APPEALS AND TRICKS ARE EMPLOYED TO NO AVAIL, HE MUST
RELY ON AN OPPRESSIVE ATMOSPHERE OF DOGGED PERSISTENCE.  HE MUST
INTERROGATE STEADILY AND WITHOUT RELENT, LEAVING THE SUBJECT NO
PROSPECT OF SURCEASE.  HE MUST DOMINATE HIS SUBJECT AND OVERWHELM HIM
WITH HIS INEXORABLE WILL TO OBTAIN THE TRUTH.  HE SHOULD INTERROGATE
FOR A SPELL OF SEVERAL HOURS PAUSING ONLY FOR THE SUBJECT'S NECESSITIES
IN ACKNOWLEDGMENT OF THE NEED TO AVOID A CHARGE OF DURESS THAT CAN BE
TECHNICALLY SUBSTANTIATED.  IN A SERIOUS CASE, THE INTERROGATION MAY
CONTINUE FOR DAYS, WITH THE REQUIRED INTERVALS FOR FOOD AND SLEEP, BUT
WITH NO RESPITE FROM THE ATMOSPHERE OF DOMINATION.  IT IS POSSIBLE IN
THIS WAY TO INDUCE THE SUBJECT TO TALK WITHOUT RESORTING TO DURESS OR
COERCION.  THE METHOD SHOULD BE USED ONLY WHEN THE GUILT OF THE SUBJECT
APPEARS HIGHLY PROBABLE."  (FN14) 

THE MANUALS SUGGEST THAT THE SUSPECT BE OFFERED LEGAL EXCUSES FOR HIS
ACTIONS IN ORDER TO OBTAIN AN INITIAL ADMISSION OF GUILT.  WHERE THERE
IS A SUSPECTED REVENGE-KILLING, FOR EXAMPLE, THE INTERROGATOR MAY SAY: 

"JOE, YOU PROBABLY DIDN'T GO OUT LOOKING FOR THIS FELLOW WITH THE
PURPOSE OF SHOOTING HIM.  MY GUESS IS, HOWEVER, THAT YOU EXPECTED
SOMETHING FROM HIM AND THAT'S WHY YOU CARRIED A GUN - FOR YOUR OWN
PROTECTION.  YOU KNEW HIM FOR WHAT HE WAS, NO GOOD.  THEN WHEN YOU MET
HIM HE PROBABLY STARTED USING FOUL, ABUSIVE LANGUAGE AND HE GAVE SOME
INDICATION THAT HE WAS ABOUT TO PULL A GUN ON YOU, AND THAT'S WHEN YOU
HAD TO ACT TO SAVE YOUR OWN LIFE.  THAT'S ABOUT IT, ISN'T IT, JOE?" 
(FN15) 

HAVING THEN OBTAINED THE ADMISSION OF SHOOTING, THE INTERROGATOR IS
ADVISED TO REFER TO CIRCUMSTANTIAL EVIDENCE WHICH NEGATES THE SELF
DEFENSE EXPLANATION.  THIS SHOULD ENABLE HIM TO SECURE THE ENTIRE
STORY.  ONE TEXT NOTES THAT "EVEN IF HE FAILS TO DO SO, THE
INCONSISTENCY BETWEEN THE SUBJECT'S ORIGINAL DENIAL OF THE SHOOTING AND
HIS PRESENT ADMISSION OF AT LEAST DOING THE SHOOTING WILL SERVE TO
DEPRIVE HIM OF A SELF-DEFENSE 'OUT' AT THE TIME OF TRIAL."  (FN16) 

WHEN THE TECHNIQUES DESCRIBED ABOVE PROVE UNAVAILING, THE TEXTS
RECOMMEND THEY BE ALTERNATED WITH A SHOW OF SOME HOSTILITY.  ONE PLOY
OFTEN USED HAS BEEN TERMED THE "FRIENDLY-UNFRIENDLY" OR THE "MUTT AND
JEFF" ACT: 

"  ...  IN THIS TECHNIQUE, TWO AGENTS ARE EMPLOYED.  MUTT, THE
RELENTLESS INVESTIGATOR, WHO KNOWS THE SUBJECT IS GUILTY AND IS NOT
GOING TO WASTE ANY TIME.  HE'S SENT A DOZEN MEN AWAY FOR THIS CRIME AND
HE'S GOING TO SEND THE SUBJECT AWAY FOR THE FULL TERM.  JEFF, ON THE
OTHER HAND, IS OBVIOUSLY A KINDHEARTED MAN.  HE HAS A FAMILY HIMSELF. 
HE HAS A BROTHER WHO WAS INVOLVED IN A LITTLE SCRAPE LIKE THIS.  HE
DISAPPROVES OF MUTT AND HIS TACTICS AND WILL ARRANGE TO GET HIM OFF THE
CASE IF THE SUBJECT WILL COOPERATE.  HE CAN'T HOLD MUTT OFF FOR LONG. 
THE SUBJECT WOULD BE WISE TO MAKE A QUICK DECISION.  THE TECHNIQUE IS
APPLIED BY HAVING BOTH INVESTIGATORS PRESENT WHILE MUTT ACTS OUT HIS
ROLE.  JEFF MAY STAND BY QUIETLY AND DEMURE AT SOME OF MUTT'S TACTICS. 
WHEN JEFF MAKES HIS PLEA FOR COOPERATION, MUTT IS NOT PRESENT IN THE
ROOM."  (FN17) 

THE INTERROGATORS SOMETIMES ARE INSTRUCTED TO INDUCE A CONFESSION OUT
OF TRICKERY.  THE TECHNIQUE HERE IS QUITE EFFECTIVE IN CRIMES WHICH
REQUIRE IDENTIFICATION OR WHICH RUN IN SERIES.  IN THE IDENTIFICATION
SITUATION, THE INTERROGATOR MAY TAKE A BREAK IN HIS QUESTIONING TO
PLACE THE SUBJECT AMONG A GROUP OF MEN IN A LINE-UP.  "THE WITNESS OR
COMPLAINANT (PREVIOUSLY COACHED, IF NECESSARY) STUDIES THE LINE-UP AND
CONFIDENTLY POINTS OUT THE SUBJECT AS THE GUILTY PARTY."  (FN18)  THEN
THE QUESTIONING RESUMES "AS THOUGH THERE WERE NOW NO DOUBT ABOUT THE
GUILT OF THE SUBJECT."  A VARIATION ON THIS TECHNIQUE IS CALLED THE
"REVERSE LINE-UP": 

"THE ACCUSED IS PLACED IN A LINE-UP, BUT THIS TIME HE IS IDENTIFIED
BY SEVERAL FICTITIOUS WITNESSES OR VICTIMS WHO ASSOCIATED HIM WITH
DIFFERENT OFFENSES.  IT IS EXPECTED THAT THE SUBJECT WILL BECOME
DESPERATE AND CONFESS TO THE OFFENSE UNDER INVESTIGATION IN ORDER TO
ESCAPE FROM THE FALSE ACCUSATIONS."  (FN19) 

THE MANUALS ALSO CONTAIN INSTRUCTIONS FOR POLICE ON HOW TO HANDLE THE
INDIVIDUAL WHO REFUSES TO DISCUSS THE MATTER ENTIRELY, OR WHO ASKS FOR
AN ATTORNEY OR RELATIVES.  THE EXAMINER IS TO CONCEDE HIM THE RIGHT TO
REMAIN SILENT.  "THIS USUALLY HAS A VERY UNDERMINING EFFECT.  FIRST OF
ALL, HE IS DISAPPOINTED IN HIS EXPECTATION OF AN UNFAVORABLE REACTION
ON THE PART OF THE INTERROGATOR.  SECONDLY, A CONCESSION OF THIS RIGHT
TO REMAIN SILENT IMPRESSES THE SUBJECT WITH THE APPARENT FAIRNESS OF
HIS INTERROGATOR."  (FN20)  AFTER THIS PSYCHOLOGICAL CONDITIONING,
HOWEVER, THE OFFICER IS TOLD TO POINT OUT THE INCRIMINATING
SIGNIFICANCE OF THE SUSPECT'S REFUSAL TO TALK: 

"JOE, YOU HAVE A RIGHT TO REMAIN SILENT.  THAT'S YOUR PRIVILEGE AND
I'M THE LAST PERSON IN THE WORLD WHO'LL TRY TO TAKE IT AWAY FROM YOU. 
IF THAT'S THE WAY YOU WANT TO LEAVE THIS, O.K.  BUT LET ME ASK YOU
THIS.  SUPPOSE YOU WERE IN MY SHOES AND I WERE IN YOURS AND YOU CALLED
ME IN TO ASK ME ABOUT THIS AND I TOLD YOU, 'I DON'T WANT TO ANSWER ANY
OF YOUR QUESTIONS.'  YOU'D THINK I HAD SOMETHING TO HIDE, AND YOU'D
PROBABLY BE RIGHT IN THINKING THAT.  THAT'S EXACTLY WHAT I'LL HAVE TO
THINK ABOUT YOU, AND SO WILL EVERYBODY ELSE.  SO LET'S SIT HERE AND
TALK THIS WHOLE THING OVER."  (FN21) 

FEW WILL PERSIST IN THEIR INITIAL REFUSAL TO TALK, IT IS SAID, IF
THIS MONOLOGUE IS EMPLOYED CORRECTLY. 

IN THE EVENT THAT THE SUBJECT WISHES TO SPEAK TO A RELATIVE OR AN
ATTORNEY, THE FOLLOWING ADVICE IS TENDERED: 

"THE INTERROGATOR SHOULD RESPOND BY SUGGESTING THAT THE SUBJECT FIRST
TELL THE TRUTH TO THE INTERROGATOR HIMSELF RATHER THAN GET ANYONE ELSE
INVOLVED IN THE MATTER.  IF THE REQUEST IS FOR AN ATTORNEY, THE
INTERROGATOR MAY SUGGEST THAT THE SUBJECT SAVE HIMSELF OR HIS FAMILY
THE EXPENSE OF ANY SUCH PROFESSIONAL SERVICE, PARTICULARLY IF HE IS
INNOCENT OF THE OFFENSE UNDER INVESTIGATION.  THE INTERROGATOR MAY ALSO
ADD, 'JOE, I'M ONLY LOOKING FOR THE TRUTH, AND IF YOU'RE TELLING THE
TRUTH, THAT'S IT.  YOU CAN HANDLE THIS BY YOURSELF.'"  (FN22) 

FROM THESE REPRESENTATIVE SAMPLES OF INTERROGATION TECHNIQUES, THE
SETTING PRESCRIBED BY THE MANUALS AND OBSERVED IN PRACTICE BECOMES
CLEAR.  IN ESSENCE, IT IS THIS:  TO BE ALONE WITH THE SUBJECT IS
ESSENTIAL TO PREVENT DISTRACTION AND TO DEPRIVE HIM OF ANY OUTSIDE
SUPPORT.  THE AURA OF CONFIDENCE IN HIS GUILT UNDERMINES HIS WILL TO
RESIST.  HE MERELY CONFIRMS THE PRECONCEIVED STORY THE POLICE SEEK TO
HAVE HIM DESCRIBE.  PATIENCE AND PERSISTENCE, AT TIMES RELENTLESS
QUESTIONING, ARE EMPLOYED.  TO OBTAIN A CONFESSION, THE INTERROGATOR
MUST "PATIENTLY MANEUVER HIMSELF OR HIS QUARRY INTO A POSITION FROM
WHICH THE DESIRED OBJECTIVE MAY BE ATTAINED."  (FN23)  WHEN NORMAL
PROCEDURES FAIL TO PRODUCE THE NEEDED RESULT, THE POLICE MAY RESORT TO
DECEPTIVE STRATEGEMS SUCH AS GIVING FALSE LEGAL ADVICE.  IT IS
IMPORTANT TO KEEP THE SUBJECT OFF BALANCE, FOR EXAMPLE, BY TRADING ON
HIS INSECURITY ABOUT HIMSELF OR HIS SURROUNDINGS.  THE POLICE THEN
PERSUADE, TRICK, OR CAJOLE HIM OUT OF EXERCISING HIS CONSTITUTIONAL
RIGHTS. 

EVEN WITHOUT EMPLOYING BRUTALITY, THE "THIRD DEGREE" OR THE SPECIFIC
STRATEGEMS DESCRIBED ABOVE, THE VERY FACT OF CUSTODIAL INTERROGATION
EXACTS A HEAVY TOLL ON INDIVIDUAL LIBERTY AND TRADES ON THE WEAKNESS OF
INDIVIDUALS.  (FN24)  THIS FACT MAY BE ILLUSTRATED SIMPLY BY REFERRING
TO THREE CONFESSION CASES DECIDED BY THIS COURT IN THE TERM IMMEDIATELY
PRECEDING OUR ESCOBEDO DECISION.  IN TOWNSEND V. SAIN, 372 U.S. 293
(1963), THE DEFENDANT WAS A 19-YEAR-OLD HEROIN ADDICT, DESCRIBED AS A
"NEAR MENTAL DEFECTIVE," ID., AT 307-310.  THE DEFENDANT IN LYNUMN V.
ILLINOIS, 372 U.S. 528 (1963), WAS A WOMAN WHO CONFESSED TO THE
ARRESTING OFFICER AFTER BEING IMPORTUNED TO "COOPERATE" IN ORDER TO
PREVENT HER CHILDREN FROM BEING TAKEN BY RELIEF AUTHORITIES.  THIS
COURT AS IN THOSE CASES REVERSED THE CONVICTION OF A DEFENDANT IN
HAYNES V. WASHINGTON, 373 U.S. 503 (1963), WHOSE PERSISTENT REQUEST
DURING HIS INTERROGATION WAS TO PHONE HIS WIFE OR ATTORNEY.  (FN25)  IN
OTHER SETTINGS, THESE INDIVIDUALS MIGHT HAVE EXERCISED THEIR
CONSTITUTIONAL RIGHTS.  IN THE INCOMMUNICADO POLICE-DOMINATED
ATMOSPHERE, THEY SUCCOMBED. 

IN THE CASES BEFORE US TODAY, GIVEN THIS BACKGROUND, WE CONCERN
OURSELVES PRIMARILY WITH THIS INTERROGATION ATMOSPHERE AND THE EVILS IT
CAN BRING.  IN NO. 759, MIRANDA V. ARIZONA, THE POLICE ARRESTED THE
DEFENDANT AND TOOK HIM TO A SPECIAL INTERROGATION ROOM WHERE THEY
SECURED A CONFESSION.   IN NO. 760, VIGNERA V. NEW YORK, THE DEFENDANT
MADE ORAL ADMISSIONS TO THE POLICE AFTER INTERROGATION IN THE AFTERNOON
AND THEN SIGNED AN INCULPATORY STATEMENT UPON BEING QUESTIONED BY AN
ASSISTANT DISTRICT ATTORNEY LATER THE SAME EVENING.  IN NO. 761,
WESTOVER V. UNITED STATES, THE DEFENDANT WAS HANDED OVER TO THE FEDERAL
BUREAU OF INVESTIGATION BY LOCAL AUTHORITIES AFTER THEY HAD DETAINED
AND INTERROGATED HIM FOR A LENGTHY PERIOD, BOTH AT NIGHT AND THE
FOLLOWING MORNING.  AFTER SOME TWO HOURS OF QUESTIONING, THE FEDERAL
OFFICERS HAD OBTAINED SIGNED STATEMENTS FROM THE DEFENDANT.  LASTLY, IN
NO. 584, CALIFORNIA V. STEWART, THE LOCAL POLICE HELD THE DEFENDANT
FIVE DAYS IN THE STATION AND INTERROGATED HIM ON NINE SEPARATE
OCCASIONS BEFORE THEY SECURED HIS INCULPATORY STATEMENT. 

IN THESE CASES, WE MIGHT NOT FIND THE DEFENDANT'S STATEMENTS TO HAVE
BEEN INVOLUNTARY IN TRADITIONAL TERMS.  OUR CONCERN FOR ADEQUATE
SAFEGUARDS TO PROTECT PRECIOUS FIFTH AMENDMENT RIGHTS IS, OF COURSE,
NOT LESSENED IN THE SLIGHTEST.  IN EACH OF THE CASES, THE DEFENDANT WAS
THRUST INTO AN UNFAMILIAR ATMOSPHERE AND RUN THROUGH MENACING POLICE
INTERROGATION PROCEDURES.  THE POTENTIALITY FOR COMPULSION IS
FORCEFULLY APPARENT, FOR EXAMPLE, IN MIRANDA, WHERE THE INDIGENT
MEXICAN DEFENDANT WAS A SERIOUSLY DISTURBED INDIVIDUAL WITH PRONOUNCED
SEXUAL FANTASIES, AND IN STEWART, IN WHICH THE DEFENDANT WAS AN
INDIGENT LOS ANGELES NEGRO WHO HAD DROPPED OUT OF SCHOOL IN THE SIXTH
GRADE.  TO BE SURE, THE RECORDS DO NOT EVINCE OVERT PHYSICAL COERCION
OR PATENT PSYCHOLOGICAL PLOYS.  THE FACT REMAINS THAT IN NONE OF THESE
CASES DID THE OFFICERS UNDERTAKE TO AFFORD APPROPRIATE SAFEGUARDS AT
THE OUTSET OF THE INTERROGATION TO INSURE THAT THE STATEMENTS WERE
TRULY THE PRODUCT OF FREE CHOICE. 

IT IS OBVIOUS THAT SUCH AN INTERROGATION ENVIRONMENT IS CREATED FOR
NO PURPOSE OTHER THAN TO SUBJUGATE THE INDIVIDUAL TO THE WILL OF HIS
EXAMINER.  THIS ATMOSPHERE CARRIES ITS OWN BADGE OF INTIMIDATION.  TO
BE SURE, THIS IS NOT PHYSICAL INTIMIDATION, BUT IT IS EQUALLY
DESTRUCTIVE OF HUMAN DIGNITY.  (FN26)  THE CURRENT PRACTICE OF
INCOMMUNICADO INTERROGATION IS AT ODDS WITH ONE OF OUR NATION'S MOST
CHERISHED PRINCIPLES - THAT THE INDIVIDUAL MAY NOT BE COMPELLED TO
INCRIMINATE HIMSELF.  UNLESS ADEQUATE PROTECTIVE DEVICES ARE EMPLOYED
TO DISPEL THE COMPULSION INHERENT IN CUSTODIAL SURROUNDINGS, NO
STATEMENT OBTAINED FROM THE DEFENDANT CAN TRULY BE THE PRODUCT OF HIS
FREE CHOICE.    FROM THE FOREGOING, WE CAN READILY PERCEIVE AN INTIMATE
CONNECTION BETWEEN THE PRIVILEGE AGAINST SELF-INCRIMINATION AND POLICE
CUSTODIAL QUESTIONING.  IT IS FITTING TO TURN TO HISTORY AND PRECEDENT
UNDERLYING THE SELF-INCRIMINATION CLAUSE TO DETERMINE ITS APPLICABILITY
IN THIS SITUATION. 

                   II. 

WE SOMETIMES FORGET HOW LONG IT HAS TAKEN TO ESTABLISH THE PRIVILEGE
AGAINST SELF-INCRIMINATION, THE SOURCES FROM WHICH IT CAME AND THE
FERVOR WITH WHICH IT WAS DEFENDED.  ITS ROOTS GO BACK INTO ANCIENT
TIMES.  (FN27)  PERHAPS THE CRITICAL HISTORICAL EVENT SHEDDING LIGHT ON
ITS ORIGINS AND EVOLUTION WAS THE TRIAL OF ONE JOHN LILBURN, A VOCAL
ANTI-STUART LEVELLER, WHO WAS MADE TO TAKE THE STAR CHAMBER OATH IN
1637.  THE OATH WOULD HAVE BOUND HIM TO ANSWER TO ALL QUESTIONS POSED
TO HIM ON ANY SUBJECT.  THE TRIAL OF JOHN LILBURN AND JOHN WHARTON, 3
HOW.  ST. TR. 1315 (1637).  HE RESISTED THE OATH AND DECLAIMED THE
PROCEEDINGS, STATING: 

"ANOTHER FUNDAMENTAL RIGHT I THEN CONTENDED FOR, WAS, THAT NO MAN'S
CONSCIENCE OUGHT TO BE RACKED BY OATHS IMPOSED, TO ANSWER TO QUESTIONS
CONCERNING HIMSELF IN MATTERS CRIMINAL, OR PRETENDED TO BE SO."  HALLER
& DAVIES, THE LEVELLER TRACTS 1647-1653, P. 454 (1944). 

ON ACCOUNT OF THE LILBURN TRIAL, PARLIAMENT ABOLISHED THE
INQUISITORIAL COURT OF STAR CHAMBER AND WENT FURTHER IN GIVING HIM
GENEROUS REPARATION.  THE LOFTY PRINCIPLES TO WHICH LILBURN HAD
APPEALED DURING HIS TRIAL GAINED POPULAR ACCEPTANCE IN ENGLAND.  (FN28)
THESE SENTIMENTS WORKED THEIR WAY OVER TO THE COLONIES AND WERE
IMPLANTED AFTER GREAT STRUGGLE INTO THE BILL OF RIGHTS.  (FN29)  THOSE
WHO FRAMED OUR CONSTITUTION AND THE BILL OF RIGHTS WERE EVER AWARE OF
SUBTLE ENCROACHMENTS ON INDIVIDUAL LIBERTY.  THEY KNEW THAT
"ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET THEIR FIRST FOOTING
...  BY SILENT APPROACHES AND SLIGHT DEVIATIONS FROM LEGAL MODES OF
PROCEDURE."  BOYD V. UNITED STATES, 116 U.S. 616, 635 (1886).  THE
PRIVILEGE WAS ELEVATED TO CONSTITUTIONAL STATUS AND HAS ALWAYS BEEN "AS
BROAD AS THE MISCHIEF AGAINST WHICH IT SEEKS TO GUARD."  COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 562 (1892).  WE CANNOT DEPART FROM THIS NOBLE
HERITAGE. 

THUS WE MAY VIEW THE HISTORICAL DEVELOPMENT OF THE PRIVILEGE AS ONE
WHICH GROPED FOR THE PROPER SCOPE OF GOVERNMENTAL POWER OVER THE
CITIZEN.  AS A "NOBLE PRINCIPLE OFTEN TRANSCENDS ITS ORIGINS," THE
PRIVILEGE HAS COME RIGHTFULLY TO BE RECOGNIZED IN PART AS AN
INDIVIDUAL'S SUBSTANTIVE RIGHT, A "RIGHT TO A PRIVATE ENCLAVE WHERE HE
MAY LEAD A PRIVATE LIFE.  THAT RIGHT IS THE HALLMARK OF OUR
DEMOCRACY."  UNITED STATES V. GRUNEWALD, 233 F.2D 556, 579, 581-582
(FRANK, J., DISSENTING), REV'D 353 U.S. 391 (1957).  WE HAVE RECENTLY
NOTED THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION - THE ESSENTIAL
MAINSTAY OF OUR ADVERSARY SYSTEM - IS FOUNDED ON A COMPLEX OF VALUES,
MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 55-57, N. 5 (1964); TEHAN V.
SHOTT, 382 U.S. 406, 414-415, N. 12 (1966).  ALL THESE POLICIES POINT
TO ONE OVERRIDING THOUGHT:  THE CONSTITUTIONAL FOUNDATION UNDERLYING
THE PRIVILEGE IS THE RESPECT A GOVERNMENT - STATE OR FEDERAL - MUST
ACCORD TO THE DIGNITY AND INTEGRITY OF ITS CITIZENS.  TO MAINTAIN A
"FAIR STATE-INDIVIDUAL BALANCE," TO REQUIRE THE GOVERNMENT "TO SHOULDER
THE ENTIRE LOAD," 8 WIGMORE, EVIDENCE 317 (MCNAUGHTON REV. 1961), TO
RESPECT THE INVIOLABILITY OF THE HUMAN PERSONALITY, OUR ACCUSATORY
SYSTEM OF CRIMINAL JUSTICE DEMANDS THAT THE GOVERNMENT SEEKING TO
PUNISH AN INDIVIDUAL PRODUCE THE EVIDENCE AGAINST HIM BY ITS OWN
INDEPENDENT LABORS, RATHER THAN BY THE CRUEL, SIMPLE EXPEDIENT OF
COMPELLING IT FROM HIS OWN MOUTH.  CHAMBERS V. FLORIDA, 309 U.S. 227,
235-238 (1940).  IN SUM, THE PRIVILEGE IS FULFILLED ONLY WHEN THE
PERSON IS GUARANTEED THE RIGHT "TO REMAIN SILENT UNLESS HE CHOOSES TO
SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN WILL."  MALLOY V. HOGAN,
378 U.S. 1, 8 (1964). 

THE QUESTION IN THESE CASES IS WHETHER THE PRIVILEGE IS FULLY
APPLICABLE DURING A PERIOD OF CUSTODIAL INTERROGATION.  IN THIS COURT,
THE PRIVILEGE HAS CONSISTENTLY BEEN ACCORDED A LIBERAL CONSTRUCTION. 
ALBERTSON V. SACB, 382 U.S. 70, 81 (1965); HOFFMAN V. UNITED STATES,
341 U.S. 479, 486 (1951); ARNDSTEIN V. MCCARTHY, 254 U.S. 71, 72-73
(1920); COUNSELMAN V. HITCHOCK, 142 U.S. 547, 562 (1892).  WE ARE
SATISFIED THAT ALL THE PRINCIPLES ENBODIED IN THE PRIVILEGE APPLY TO
INFORMAL COMPULSION EXERTED BY LAW-ENFORCEMENT OFFICERS DURING IN
CUSTODY QUESTIONING.  AN INDIVIDUAL SWEPT FROM FAMILIAR SURROUNDINGS
INTO POLICE CUSTODY, SURROUNDED BY ANTAGONISTIC FORCES, AND SUBJECTED
TO THE TECHNIQUES OF PERSUASION DESCRIBED ABOVE CANNOT BE OTHERWISE
THAN UNDER COMPULSION TO SPEAK.  AS A PRACTICAL MATTER, THE COMPULSION
TO SPEAK IN THE ISOLATED SETTING OF THE POLICE STATION MAY WELL BE
GREATER THAN IN COURTS OR OTHER OFFICIAL INVESTIGATIONS, WHERE THERE
ARE OFTEN IMPARTIAL OBSERVERS TO GUARD AGAINST INTIMIDATION OR
TRICKERY.  (FN30) 

THIS QUESTION, IN FACT, COULD HAVE BEEN TAKEN AS SETTLED IN FEDERAL
COURTS ALMOST 70 YEARS AGO, WHEN, IN BRAM V. UNITED STATES, 168 U.S.
532, 542 (1897), THIS COURT HELD: 

"IN CRIMINAL TRIALS, IN THE COURTS OF THE UNITED STATES, WHEREVER A
QUESTION ARISES WHETHER A CONFESSION IS INCOMPETENT BECAUSE NOT
VOLUNTARY, THE ISSUE IS CONTROLLED BY THAT PORTION OF THE FIFTH
AMENDMENT  ...  COMMANDING THAT NO PERSON 'SHALL BE COMPELLED IN ANY
CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF.'" 

IN BRAM, THE COURT REVIEWED THE BRITISH AND AMERICAN HISTORY AND CASE
LAW AND SET DOWN THE FIFTH AMENDMENT STANDARD FOR COMPULSION WHICH WE
IMPLEMENT TODAY: 

"MUCH OF THE CONFUSION WHICH HAS RESULTED FROM THE EFFORT TO DEDUCE
FROM THE ADJUDGED CASES WHAT WOULD BE A SUFFICIENT QUANTUM OF PROOF TO
SHOW THAT A CONFESSION WAS OR WAS NOT VOLUNTARY, HAS ARISEN FROM A
MISCONCEPTION OF THE SUBJECT TO WHICH THE PROOF MUST ADDRESS ITSELF. 
THE RULE IS NOT THAT IN ORDER TO RENDER A STATEMENT ADMISSIBLE THE
PROOF MUST BE ADEQUATE TO ESTABLISH THAT THE PARTICULAR COMMUNICATIONS
CONTAINED IN A STATEMENT WERE VOLUNTARILY MADE, BUT IT MUST BE
SUFFICIENT TO ESTABLISH THAT THE MAKING OF THE STATEMENT WAS VOLUNTARY;
THAT IS TO SAY, THAT FROM THE CAUSES, WHICH THE LAW TREATS AS LEGALLY
SUFFICIENT TO ENGENDER IN THE MIND OF THE ACCUSED HOPE OR FEAR IN
RESPECT TO THE CRIME CHARGED, THE ACCUSED WAS NOT INVOLUNTARILY
IMPELLED TO MAKE A STATEMENT, WHEN BUT FOR THE IMPROPER INFLUENCES HE
WOULD HAVE REMAINED SILENT  ...  ."  168 U.S., AT 549.  AND SEE, ID.,
AT 542. 

THE COURT HAS ADHERED TO THIS REASONING.  IN 1924, MR. JUSTICE
BRANDEIS WROTE FOR A UNANIMOUS COURT IN REVERSING A CONVICTION RESTING
ON A COMPELLED CONFESSION, WAN V. UNITED STATES, 266 U.S. 1.   HE
STATED: 

"IN THE FEDERAL COURTS, THE REQUISITE OF VOLUNTARINESS IS NOT
SATISFIED BY ESTABLISHING MERELY THAT THE CONFESSION WAS NOT INDUCED BY
A PROMISE OR A THREAT.  A CONFESSION IS VOLUNTARY IN LAW IF, AND ONLY
IF, IT WAS, IN FACT, VOLUNTARILY MADE.  A CONFESSION MAY HAVE BEEN
GIVEN VOLUNTARILY, ALTHOUGH IT WAS MADE TO POLICE OFFICERS, WHILE IN
CUSTODY, AND IN ANSWER TO AN EXAMINATION CONDUCTED BY THEM.  BUT A
CONFESSION OBTAINED BY COMPULSION MUST BE EXCLUDED WHATEVER MAY HAVE
BEEN THE CHARACTER OF THE COMPULSION, AND WHETHER THE COMPULSION WAS
APPLIED IN A JUDICIAL PROCEEDING OR OTHERWISE.  BRAM V. UNITED STATES,
168 U.S. 532."  266 U.S., AT 14-15. 

IN ADDITION TO THE EXPANSIVE HISTORICAL DEVELOPMENT OF THE PRIVILEGE
AND THE SOUND POLICIES WHICH HAVE NURTURED ITS EVOLUTION, JUDICIAL
PRECEDENT THUS CLEARLY ESTABLISHES ITS APPLICATION TO INCOMMUNICADO
INTERROGATION.  IN FACT, THE GOVERNMENT CONCEDES THIS POINT AS WELL
ESTABLISHED IN NO. 761, WESTOVER V. UNITED STATES, STATING:  "WE HAVE
NO DOUBT  ...  THAT IT IS POSSIBLE FOR A SUSPECT'S FIFTH AMENDMENT
RIGHT TO BE VIOLATED DURING IN-CUSTODY QUESTIONING BY A LAW-ENFORCEMENT
OFFICER."  (FN31) 

BECAUSE OF THE ADOPTION BY CONGRESS OF RULE 5(A) OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE, AND THIS COURT'S EFFECTUATION OF THAT RULE IN
MCNABB V. UNITED STATES, 318 U.S. 332 (1943), AND MALLORY V. UNITED
STATES, 354 U.S. 449 (1957), WE HAVE HAD LITTLE OCCASION IN THE PAST
QUARTER CENTURY TO REACH THE CONSTITUTIONAL ISSUES IN DEALING WITH
FEDERAL INTERROGATIONS.  THESE SUPERVISORY RULES, REQUIRING PRODUCTION
OF AN ARRESTED PERSON BEFORE A COMMISSIONER "WITHOUT UNNECESSARY DELAY"
AND EXCLUDING EVIDENCE OBTAINED IN DEFAULT OF THAT STATUTORY
OBLIGATION, WERE NONETHELESS RESPONSIVE TO THE SAME CONSIDERATIONS OF
FIFTH AMENDMENT POLICY THAT UNAVOIDABLY FACE US NOW AS TO THE STATES. 
IN MCNABB, 318 U.S., AT 343-344, AND IN MALLORY, 354 U.S., AT 445-456,
WE RECOGNIZED BOTH THE DANGERS OF INTERROGATION AND THE APPROPRIATENESS
OF PROPHYLAXIS STEMMING FROM THE VERY FACT OF INTERROGATION ITSELF. 
(FN32) 

OUR DECISION IN MALLOY V. HOGAN, 378 U.S. 1 (1964), NECESSITATES AN
EXAMINATION OF THE SCOPE OF THE PRIVILEGE IN STATE CASES AS WELL.  IN
MALLOY, WE SQUARELY HELD THE PRIVILEGE APPLICABLE TO THE STATES, AND
HELD THAT THE SUBSTANTIVE STANDARDS UNDERLYING THE PRIVILEGE APPLIED
WITH FULL FORCE TO STATE COURT PROCEEDINGS.  THERE, AS IN MURPHY V.
WATERFRONT COMM'N, 378 U.S. 52 (1964), AND GRIFFIN V. CALIFORNIA, 380
U.S. 609 (1965), WE APPLIED THE EXISTING FIFTH AMENDMENT STANDARDS TO
THE CASE BEFORE US.  ASIDE FROM THE HOLDING ITSELF, THE REASONING IN
MALLOY MADE CLEAR WHAT HAD ALREADY BECOME APPARENT - THAT THE
SUBSTANTIVE AND PROCEDURAL SAFEGUARDS SURROUNDING ADMISSIBILITY OF
CONFESSIONS IN STATE CASES HAD BECOME EXCEEDINGLY EXACTING, REFLECTING
ALL THE POLICIES EMBEDDED IN THE PRIVILEGE, 378 U.S., AT 7-8.  (FN33)
THE VOLUNTARINESS DOCTRINE IN THE STATE CASES, AS MALLOY INDICATES,
ENCOMPASSES ALL INTERROGATION PRACTICES WHICH ARE LIKELY TO EXERT SUCH
PRESSURE UPON AN INDIVIDUAL AS TO DISABLE HIM FROM MAKING A FREE AND
RATIONAL CHOICE.  (FN34)  THE IMPLICATIONS OF THIS PROPOSITION WERE
ELABORATED IN OUR DECISION IN ESCOBEDO V. ILLINOIS, 378 U.S. 478,
DECIDED ONE WEEK AFTER MALLOY APPLIED THE PRIVILEGE TO THE STATES. 

OUR HOLDING THERE STRESSED THE FACT THAT THE POLICE HAD NOT ADVISED
THE DEFENDANT OF HIS CONSTITUTIONAL PRIVILEGE TO REMAIN SILENT AT THE
OUTSET OF THE INTERROGATION, AND WE DREW ATTENTION TO THAT FACT AT
SEVERAL POINTS IN THE DECISION, 378 U.S., AT 483, 485, 491.  THIS WAS
NO ISOLATED FACTOR, BUT AN ESSENTIAL INGREDIENT IN OUR DECISION.  THE
ENTIRE THRUST OF POLICE INTERROGATION THERE, AS IN ALL THE CASES TODAY,
WAS TO PUT THE DEFENDANT IN SUCH AN EMOTIONAL STATE AS TO IMPAIR HIS
CAPACITY FOR RATIONAL JUDGMENT.  THE ABDICATION OF THE CONSTITUTIONAL
PRIVILEGE - THE CHOICE ON HIS PART TO SPEAK TO THE POLICE - WAS NOT
MADE KNOWINGLY OR COMPETENTLY BECAUSE OF THE FAILURE TO APPRISE HIM OF
HIS RIGHTS; THE COMPELLING ATMOSPHERE OF THE IN-CUSTODY INTERROGATION,
AND NOT AN INDEPENDENT DECISION ON HIS PART, CAUSED THE DEFENDANT TO
SPEAK. 

A DIFFERENT PHASE OF THE ESCOBEDO DECISION WAS SIGNIFICANT IN ITS
ATTENTION TO THE ABSENCE OF COUNSEL DURING THE QUESTIONING.  THERE, AS
IN THE CASES TODAY, WE SOUGHT A PROTECTIVE DEVICE TO DISPEL THE
COMPELLING ATMOSPHERE OF THE INTERROGATION.  IN ESCOBEDO, HOWEVER, THE
POLICE DID NOT RELIEVE THE DEFENDANT OF THE ANXIETIES WHICH THEY HAD
CREATED IN THE INTERROGATION ROOMS.  RATHER, THEY DENIED HIS REQUEST
FOR THE ASSISTANCE OF COUNSEL, 378 U.S., AT 481, 488, 491.  (FN35)
THIS HEIGHTENED HIS DILEMMA, AND MADE HIS LATER STATEMENTS THE PRODUCT
OF THIS COMPULSION.  CF. HAYNES V. WASHINGTON, 373 U.S. 503, 514
(1963).  THE DENIAL OF THE DEFENDANT'S REQUEST FOR HIS ATTORNEY THUS
UNDERMINED HIS ABILITY TO EXERCISE THE PRIVILEGE - TO REMAIN SILENT IF
HE CHOSE OR TO SPEAK WITHOUT ANY INTIMIDATION, BLATANT OR SUBTLE.  THE
PRESENCE OF COUNSEL, IN ALL THE CASES BEFORE US TODAY, WOULD BE THE
ADEQUATE PROTECTIVE DEVICE NECESSARY TO MAKE THE PROCESS OF POLICE
INTERROGATION CONFORM TO THE DICTATES OF THE PRIVILEGE.  HIS PRESENCE
WOULD INSURE THAT STATEMENTS MADE IN THE GOVERNMENT-ESTABLISHED
ATMOSPHERE ARE NOT THE PRODUCT OF COMPULSION. 

IT WAS IN THIS MANNER THAT ESCOBEDO EXPLICATED ANOTHER FACET OF THE
PRE-TRIAL PRIVILEGE, NOTED IN MANY OF THE COURT'S PRIOR DECISIONS:  THE
PROTECTION OF RIGHTS AT TRIAL.  (FN36)  THAT COUNSEL IS PRESENT WHEN
STATEMENTS ARE TAKEN FROM AN INDIVIDUAL DURING INTERROGATION OBVIOUSLY
ENHANCES THE INTEGRITY OF THE FACT-FINDING PROCESSES IN COURT.  THE
PRESENCE OF AN ATTORNEY, AND THE WARNINGS DELIVERED TO THE INDIVIDUAL,
ENABLE THE DEFENDANT UNDER OTHERWISE COMPELLING CIRCUMSTANCES TO TELL
HIS STORY WITHOUT FEAR, EFFECTIVELY, AND IN A WAY THAT ELIMINATES THE
EVILS IN THE INTERROGATION PROCESS.  WITHOUT THE PROTECTIONS FLOWING
FROM ADEQUATE WARNINGS AND THE RIGHTS OF COUNSEL, "ALL THE CAREFUL
SAFEGUARDS ERECTED AROUND THE GIVING OF TESTIMONY, WHETHER BY AN
ACCUSED OR ANY OTHER WITNESS, WOULD BECOME EMPTY FORMALITIES IN A
PROCEDURE WHERE THE MOST COMPELLING POSSIBLE EVIDENCE OF GUILT, A
CONFESSION, WOULD HAVE ALREADY BEEN OBTAINED AT THE UNSUPERVISED
PLEASURE OF THE POLICE."  MAPP V. OHIO, 367 U.S. 643, 685
(1961)(HARLAN, J., DISSENTING).  CF. POINTER V. TEXAS, 380 U.S. 400
(1965). 

           III. 

TODAY, THEN, THERE CAN BE NO DOUBT THAT THE FIFTH AMENDMENT PRIVILEGE
IS AVAILABLE OUTSIDE OF CRIMINAL COURT PROCEEDINGS AND SERVES TO
PROTECT PERSONS IN ALL SETTINGS IN WHICH THEIR FREEDOM OF ACTION IS
CURTAILED IN ANY SIGNIFICANT WAY FROM BEING COMPELLED TO INCRIMINATE
THEMSELVES.  WE HAVE CONCLUDED THAT WITHOUT PROPER SAFEGUARDS THE
PROCESS OF IN-CUSTODY INTERROGATION OF PERSONS SUSPECTED OR ACCUSED OF
CRIME CONTAINS INHERENTLY COMPELLING PRESSURES WHICH WORK TO UNDERMINE
THE INDIVIDUAL'S WILL TO RESIST AND TO COMPEL HIM TO SPEAK WHERE HE
WOULD NOT OTHERWISE DO SO FREELY.  IN ORDER TO COMBAT THESE PRESSURES
AND TO PERMIT A FULL OPPORTUNITY TO EXERCISE THE PRIVILEGE AGAINST SELF
INCRIMINATION, THE ACCUSED MUST BE ADEQUATELY AND EFFECTIVELY APPRISED
OF HIS RIGHTS AND THE EXERCISE OF THOSE RIGHTS MUST BE FULLY HONORED. 
IT IS IMPOSSIBLE FOR US TO FORESEE THE POTENTIAL ALTERNATIVES FOR
PROTECTING THE PRIVILEGE WHICH MIGHT BE DEVISED BY CONGRESS OR THE
STATES IN THE EXERCISE OF THEIR CREATIVE RULE-MAKING CAPACITIES. 
THEREFORE WE CANNOT SAY THAT THE CONSTITUTION NECESSARILY REQUIRES
ADHERENCE TO ANY PARTICULAR SOLUTION FOR THE INHERENT COMPULSIONS OF
THE INTERROGATION PROCESS AS IT IS PRESENTLY CONDUCTED.  OUR DECISION
IN NO WAY CREATES A CONSTITUTIONAL STRAITJACKET WHICH WILL HANDICAP
SOUND EFFORTS AT REFORM, NOR IS IT INTENDED TO HAVE THIS EFFECT.  WE
ENCOURAGE CONGRESS AND THE STATES TO CONTINUE THEIR LAUDABLE SEARCH FOR
INCREASINGLY EFFECTIVE WAYS OF PROTECTING THE RIGHTS OF THE INDIVIDUAL
WHILE PROMOTING EFFICIENT ENFORCEMENT OF OUR CRIMINAL LAWS.  HOWEVER,
UNLESS WE ARE SHOWN OTHER PROCEDURES WHICH ARE AT LEAST AS EFFECTIVE IN
APPRISING ACCUSED PERSONS OF THEIR RIGHT TO SILENCE AND IN ASSURING A
CONTINUOUS OPPORTUNITY TO EXERCISE IT, THE FOLLOWING SAFEGUARDS MUST BE
OBSERVED. 

AT THE OUTSET, IF A PERSON IN CUSTODY IS TO BE SUBJECTED TO
INTERROGATION, HE MUST FIRST BE INFORMED IN CLEAR AND UNEQUIVOCAL TERMS
THAT HE HAS THE RIGHT TO REMAIN SILENT.  FOR THOSE UNAWARE OF THE
PRIVILEGE, THE WARNING IS NEEDED SIMPLY TO MAKE THEM AWARE OF IT - THE
THRESHOLD REQUIREMENT FOR AN INTELLIGENT DECISION AS TO ITS EXERCISE. 
MORE IMPORTANT, SUCH A WARNING IS AN ABSOLUTE PREREQUISITE IN
OVERCOMING THE INHERENT PRESSURES OF THE INTERROGATION ATMOSPHERE.  IT
IS NOT JUST THE SUBNORMAL OR WOEFULLY IGNORANT WHO SUCCUMB TO AN
INTERROGATOR'S IMPRECATIONS, WHETHER IMPLIED OR EXPRESSLY STATED, THAT
THE INTERROGATION WILL CONTINUE UNTIL A CONFESSION IS OBTAINED OR THAT
SILENCE IN THE FACE OF ACCUSATION IS ITSELF DAMNING AND WILL BODE ILL
WHEN PRESENTED TO A JURY.  (FN37)  FURTHER, THE WARNING WILL SHOW THE
INDIVIDUAL THAT HIS INTERROGATORS ARE PREPARED TO RECOGNIZE HIS
PRIVILEGE SHOULD HE CHOOSE TO EXERCISE IT. 

THE FIFTH AMENDMENT PRIVILEGE IS SO FUNDAMENTAL TO OUR SYSTEM OF
CONSTITUTIONAL RULE AND THE EXPEDIENT OF GIVING AN ADEQUATE WARNING AS
TO THE AVAILABILITY OF THE PRIVILEGE SO SIMPLE, WE WILL NOT PAUSE TO
INQUIRE IN INDIVIDUAL CASES WHETHER THE DEFENDANT WAS AWARE OF HIS
RIGHTS WITHOUT A WARNING BEING GIVEN.  ASSESSMENTS OF THE KNOWLEDGE THE
DEFENDANT POSSESSED, BASED ON INFORMATION AS TO HIS AGE, EDUCATION,
INTELLIGENCE, OR PRIOR CONTACT WITH AUTHORITIES, CAN NEVER BE MORE THAN
SPECULATION; (FN38) A WARNING IS A CLEARCUT FACT.  MORE IMPORTANT,
WHATEVER THE BACKGROUND OF THE PERSON INTERROGATED, A WARNING AT THE
TIME OF THE INTERROGATION IS INDISPENSABLE TO OVERCOME ITS PRESSURES
AND TO INSURE THAT THE INDIVIDUAL KNOWS HE IS FREE TO EXERCISE THE
PRIVILEGE AT THAT POINT IN TIME. 

THE WARNING OF THE RIGHT TO REMAIN SILENT MUST BE ACCOMPANIED BY THE
EXPLANATION THAT ANYTHING SAID CAN AND WILL BE USED AGAINST THE
INDIVIDUAL IN COURT.  THIS WARNING IS NEEDED IN ORDER TO MAKE HIM AWARE
NOT ONLY OF THE PRIVILEGE, BUT ALSO OF THE CONSEQUENCES OF FORGOING IT.
IT IS ONLY THROUGH AN AWARENESS OF THESE CONSEQUENCES THAT THERE CAN
BE ANY ASSURANCE OF REAL UNDERSTANDING AND INTELLIGENT EXERCISE OF THE
PRIVILEGE.  MOREOVER, THIS WARNING MAY SERVE TO MAKE THE INDIVIDUAL
MORE ACUTELY AWARE THAT HE IS FACED WITH A PHASE OF THE ADVERSARY
SYSTEM - THAT HE IS NOT IN THE PRESENCE OF PERSONS ACTING SOLELY IN HIS
INTEREST. 

THE CIRCUMSTANCES SURROUNDING IN-CUSTODY INTERROGATION CAN OPERATE
VERY QUICKLY TO OVERBEAR THE WILL OF ONE MERELY MADE AWARE OF HIS
PRIVILEGE BY HIS INTERROGATORS.  THEREFORE, THE RIGHT TO HAVE COUNSEL
PRESENT AT THE INTERROGATION IS INDISPENSABLE TO THE PROTECTION OF THE
FIFTH AMENDMENT PRIVILEGE UNDER THE SYSTEM WE DELINEATE TODAY.  OUR AIM
IS TO ASSURE THAT THE INDIVIDUAL'S RIGHT TO CHOOSE BETWEEN SILENCE AND
SPEECH REMAINS UNFETTERED THROUGHOUT THE INTERROGATION PROCESS.  A ONCE
STATED WARNING, DELIVERED BY THOSE WHO WILL CONDUCT THE INTERROGATION,
CANNOT ITSELF SUFFICE TO THAT END AMONG THOSE WHO MOST REQUIRE
KNOWLEDGE OF THEIR RIGHTS.  A MERE WARNING GIVEN BY THE INTERROGATORS
IS NOT ALONE SUFFICIENT TO ACCOMPLISH THAT END.  PROSECUTORS THEMSELVES
CLAIM THAT THE ADMONISHMENT OF THE RIGHT TO REMAIN SILENT WITHOUT MORE
"WILL BENEFIT ONLY THE RECIDIVIST AND THE PROFESSIONAL."  BRIEF FOR THE
NATIONAL DISTRICT ATTORNEYS ASSOCIATION AS AMICUS CURIAE, P. 14.  EVEN
PRELIMINARY ADVICE GIVEN TO THE ACCUSED BY HIS OWN ATTORNEY CAN BE
SWIFTLY OVERCOME BY THE SECRET INTERROGATION PROCESS.  CF. ESCOBEDO V.
ILLINOIS, 378 U.S. 478, 485, N. 5.  THUS, THE NEED FOR COUNSEL TO
PROTECT THE FIFTH AMENDMENT PRIVILEGE COMPREHENDS NOT MERELY A RIGHT TO
CONSULT WITH COUNSEL PRIOR TO QUESTIONING, BUT ALSO TO HAVE COUNSEL
PRESENT DURING ANY QUESTIONING IF THE DEFENDANT SO DESIRES. 

THE PRESENCE OF COUNSEL AT THE INTERROGATION MAY SERVE SEVERAL
SIGNIFICANT SUBSIDIARY FUNCTIONS AS WELL.  IF THE ACCUSED DECIDES TO
TALK TO HIS INTERROGATORS, THE ASSISTANCE OF COUNSEL CAN MITIGATE THE
DANGERS OF UNTRUSTWORTHINESS.  WITH A LAWYER PRESENT THE LIKELIHOOD
THAT THE POLICE WILL PRACTICE COERCION IS REDUCED, AND IF COERCION IS
NEVERTHELESS EXERCISED THE LAWYER CAN TESTIFY TO IT IN COURT.  THE
PRESENCE OF A LAWYER CAN ALSO HELP TO GUARANTEE THAT THE ACCUSED GIVES
A FULLY ACCURATE STATEMENT TO THE POLICE AND THAT THE STATEMENT IS
RIGHTLY REPORTED BY THE PROSECUTION AT TRIAL.  SEE CROOKER V.
CALIFORNIA, 357 U.S. 433, 443-448 (1958)(DOUGLAS, J., DISSENTING). 

AN INDIVIDUAL NEED NOT MAKE A PRE-INTERROGATION REQUEST FOR A
LAWYER.  WHILE SUCH REQUEST AFFIRMATIVELY SECURES HIS RIGHT TO HAVE
ONE, HIS FAILURE TO ASK FOR A LAWYER DOES NOT CONSTITUTE A WAIVER.  NO
EFFECTIVE WAIVER OF THE RIGHT TO COUNSEL DURING INTERROGATION CAN BE
RECOGNIZED UNLESS SPECIFICALLY MADE AFTER THE WARNINGS WE HERE
DELINEATE HAVE BEEN GIVEN.  THE ACCUSED WHO DOES NOT KNOW HIS RIGHTS
AND THEREFORE DOES NOT MAKE A REQUEST MAY BE THE PERSON WHO MOST NEEDS
COUNSEL.  AS THE CALIFORNIA SUPREME COURT HAS APTLY PUT IT: 

"FINALLY, WE MUST RECOGNIZE THAT THE IMPOSITION OF THE REQUIREMENT
FOR THE REQUEST WOULD DISCRIMINATE AGAINST THE DEFENDANT WHO DOES NOT
KNOW HIS RIGHTS.  THE DEFENDANT WHO DOES NOT ASK FOR COUNSEL IS THE
VERY DEFENDANT WHO MOST NEEDS COUNSEL.  WE CANNOT PENALIZE A DEFENDANT
WHO, NOT UNDERSTANDING HIS CONSTITUTIONAL RIGHTS, DOES NOT MAKE THE
FORMAL REQUEST AND BY SUCH FAILURE DEMONSTRATES HIS HELPLESSNESS.  TO
REQUIRE THE REQUEST WOULD BE TO FAVOR THE DEFENDANT WHOSE
SOPHISTICATION OR STATUS HAD FORTUITOUSLY PROMPTED HIM TO MAKE IT." 
PEOPLE V. DORADO, 62 CAL. 2D 338, 351, 398 P.2D 361, 369-370, 42 CAL.
RPTR.  169, 177-178 (1965)(TOBRINER, J.). 

IN CARNLEY V. COCHRAN, 369 U.S. 506, 513 (1962), WE STATED:  "IT IS
SETTLED THAT WHERE THE ASSISTANCE OF COUNSEL IS A CONSTITUTIONAL
REQUISITE, THE RIGHT TO BE FURNISHED COUNSEL DOES NOT DEPEND ON A
REQUEST."  THIS PROPOSITION APPLIES WITH EQUAL FORCE IN THE CONTEXT OF
PROVIDING COUNSEL TO PROTECT AN ACCUSED'S FIFTH AMENDMENT PRIVILEGE IN
THE FACE OF INTERROGATION.  (FN39)  ALTHOUGH THE ROLE OF COUNSEL AT
TRIAL DIFFERS FROM THE ROLE DURING INTERROGATION, THE DIFFERENCES ARE
NOT RELEVANT TO THE QUESTION WHETHER A REQUEST IS A PREREQUISITE. 

ACCORDINGLY WE HOLD THAT AN INDIVIDUAL HELD FOR INTERROGATION MUST BE
CLEARLY INFORMED THAT HE HAS THE RIGHT TO CONSULT WITH A LAWYER AND TO
HAVE THE LAWYER WITH HIM DURING INTERROGATION UNDER THE SYSTEM FOR
PROTECTING THE PRIVILEGE WE DELINEATE TODAY.  AS WITH THE WARNINGS OF
THE RIGHT TO REMAIN SILENT AND THAT ANYTHING STATED CAN BE USED IN
EVIDENCE AGAINST HIM, THIS WARNING IS AN ABSOLUTE PREREQUISITE TO
INTERROGATION.  NO AMOUNT OF CIRCUMSTANTIAL EVIDENCE THAT THE PERSON
MAY HAVE BEEN AWARE OF THIS RIGHT WILL SUFFICE TO STAND IN ITS STEAD. 
ONLY THROUGH SUCH A WARNING IS THERE ASCERTAINABLE ASSURANCE THAT THE
ACCUSED WAS AWARE OF THIS RIGHT. 

IF AN INDIVIDUAL INDICATES THAT HE WISHES THE ASSISTANCE OF COUNSEL
BEFORE ANY INTERROGATION OCCURS, THE AUTHORITIES CANNOT RATIONALLY
IGNORE OR DENY HIS REQUEST ON THE BASIS THAT THE INDIVIDUAL DOES NOT
HAVE OR CANNOT AFFORD A RETAINED ATTORNEY.  THE FINANCIAL ABILITY OF
THE INDIVIDUAL HAS NO RELATIONSHIP TO THE SCOPE OF THE RIGHTS INVOLVED
HERE.  THE PRIVILEGE AGAINST SELF-INCRIMINATION SECURED BY THE
CONSTITUTION APPLIES TO ALL INDIVIDUALS.  THE NEED FOR COUNSEL IN ORDER
TO PROTECT THE PRIVILEGE EXISTS FOR THE INDIGENT AS WELL AS THE
AFFLUENT.  IN FACT, WERE WE TO LIMIT THESE CONSTITUTIONAL RIGHTS TO
THOSE WHO CAN RETAIN AN ATTORNEY, OUR DECISIONS TODAY WOULD BE OF
LITTLE SIGNIFICANCE.  THE CASES BEFORE US AS WELL AS THE VAST MAJORITY
OF CONFESSION CASES WITH WHICH WE HAVE DEALT IN THE PAST INVOLVE THOSE
UNABLE TO RETAIN COUNSEL.  (FN40)  WHILE AUTHORITIES ARE NOT REQUIRED
TO RELIEVE THE ACCUSED OF HIS POVERTY, THEY HAVE THE OBLIGATION NOT TO
TAKE ADVANTAGE OF INDIGENCE IN THE ADMINISTRATION OF JUSTICE.  (FN41)
DENIAL OF COUNSEL TO THE INDIGENT AT THE TIME OF INTERROGATION WHILE
ALLOWING AN ATTORNEY TO THOSE WHO CAN AFFORD ONE WOULD BE NO MORE
SUPPORTABLE BY REASON OR LOGIC THAN THE SIMILAR SITUATION AT TRIAL AND
ON APPEAL STRUCK DOWN IN GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), AND
DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963). 

IN ORDER FULLY TO APPRISE A PERSON INTERROGATED OF THE EXTENT OF HIS
RIGHTS UNDER THIS SYSTEM THEN, IT IS NECESSARY TO WARN HIM NOT ONLY
THAT HE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY, BUT ALSO THAT IF HE
IS INDIGENT A LAWYER WILL BE APPOINTED TO REPRESENT HIM.  WITHOUT THIS
ADDITIONAL WARNING, THE ADMONITION OF THE RIGHT TO CONSULT WITH COUNSEL
WOULD OFTEN BE UNDERSTOOD AS MEANING ONLY THAT HE CAN CONSULT WITH A
LAWYER IF HE HAS ONE OR HAS THE FUNDS TO OBTAIN ONE.  THE WARNING OF A
RIGHT TO COUNSEL WOULD BE HOLLOW IF NOT COUCHED IN TERMS THAT WOULD
CONVEY TO THE INDIGENT - THE PERSON MOST OFTEN SUBJECTED TO
INTERROGATION - THE KNOWLEDGE THAT HE TOO HAS A RIGHT TO HAVE COUNSEL
PRESENT.  (FN42)  AS WITH THE WARNINGS OF THE RIGHT TO REMAIN SILENT
AND OF THE GENERAL RIGHT TO COUNSEL, ONLY BY EFFECTIVE AND EXPRESS
EXPLANATION TO THE INDIGENT OF THIS RIGHT CAN THERE BE ASSURANCE THAT
HE WAS TRULY IN A POSITION TO EXERCISE IT.  (FN43) 

ONCE WARNINGS HAVE BEEN GIVEN, THE SUBSEQUENT PROCEDURE IS CLEAR.  IF
THE INDIVIDUAL INDICATES IN ANY MANNER, AT ANY TIME PRIOR TO OR DURING
QUESTIONING, THAT HE WISHES TO REMAIN SILENT, THE INTERROGATION MUST
CEASE.  (FN44)  AT THIS POINT HE HAS SHOWN THAT HE INTENDS TO EXERCISE
HIS FIFTH AMENDMENT PRIVILEGE; ANY STATEMENT TAKEN AFTER THE PERSON
INVOKES HIS PRIVILEGE CANNOT BE OTHER THAN THE PRODUCT OF COMPULSION,
SUBTLE OR OTHERWISE.  WITHOUT THE RIGHT TO CUT OFF QUESTIONING, THE
SETTING OF IN-CUSTODY INTERROGATION OPERATES ON THE INDIVIDUAL TO
OVERCOME FREE CHOICE IN PRODUCING A STATEMENT AFTER THE PRIVILEGE HAS
BEEN ONCE INVOKED.  IF THE INDIVIDUAL STATES THAT HE WANTS AN ATTORNEY,
THE INTERROGATION MUST CEASE UNTIL AN ATTORNEY IS PRESENT.  AT THAT
TIME, THE INDIVIDUAL MUST HAVE AN OPPORTUNITY TO CONFER WITH THE
ATTORNEY AND TO HAVE HIM PRESENT DURING ANY SUBSEQUENT QUESTIONING.  IF
THE INDIVIDUAL CANNOT OBTAIN AN ATTORNEY AND HE INDICATES THAT HE WANTS
ONE BEFORE SPEAKING TO POLICE, THEY MUST RESPECT HIS DECISION TO REMAIN
SILENT. 

THIS DOES NOT MEAN, AS SOME HAVE SUGGESTED, THAT EACH POLICE STATION
MUST HAVE A "STATION HOUSE LAWYER" PRESENT AT ALL TIMES TO ADVISE
PRISONERS.  IT DOES MEAN, HOWEVER, THAT IF POLICE PROPOSE TO
INTERROGATE A PERSON THEY MUST MAKE KNOWN TO HIM THAT HE IS ENTITLED TO
A LAWYER AND THAT IF HE CANNOT AFFORD ONE, A LAWYER WILL BE PROVIDED
FOR HIM PRIOR TO ANY INTERROGATION.  IF AUTHORITIES CONCLUDE THAT THEY
WILL NOT PROVIDE COUNSEL DURING A REASONABLE PERIOD OF TIME IN WHICH
INVESTIGATION IN THE FIELD IS CARRIED OUT, THEY MAY REFRAIN FROM DOING
SO WITHOUT VIOLATING THE PERSON'S FIFTH AMENDMENT PRIVILEGE SO LONG AS
THEY DO NOT QUESTION HIM DURING THAT TIME. 

IF THE INTERROGATION CONTINUES WITHOUT THE PRESENCE OF AN ATTORNEY
AND A STATEMENT IS TAKEN, A HEAVY BURDEN RESTS ON THE GOVERNMENT TO
DEMONSTRATE THAT THE DEFENDANT KNOWINGLY AND INTELLIGENTLY WAIVED HIS
PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO RETAINED OR
APPOINTED COUNSEL.  ESCOBEDO V. ILLINOIS, 378 U.S. 478, 490, N. 14. 
THIS COURT HAS ALWAYS SET HIGH STANDARDS OF PROOF FOR THE WAIVER OF
CONSTITUTIONAL RIGHTS, JOHNSON V. ZERBST, 304 U.S. 458 (1938), AND WE
RE-ASSERT THESE STANDARDS AS APPLIED TO IN-CUSTODY INTERROGATION. 
SINCE THE STATE IS RESPONSIBLE FOR ESTABLISHING THE ISOLATED
CIRCUMSTANCES UNDER WHICH THE INTERROGATION TAKES PLACE AND HAS THE
ONLY MEANS OF MAKING AVAILABLE CORROBORATED EVIDENCE OF WARNINGS GIVEN
DURING INCOMMUNICADO INTERROGATION, THE BURDEN IS RIGHTLY ON ITS
SHOULDERS. 

AN EXPRESS STATEMENT THAT THE INDIVIDUAL IS WILLING TO MAKE A
STATEMENT AND DOES NOT WANT AN ATTORNEY FOLLOWED CLOSELY BY A STATEMENT
COULD CONSTITUTE A WAIVER.  BUT A VALID WAIVER WILL NOT BE PRESUMED
SIMPLY FROM THE SILENCE OF THE ACCUSED AFTER WARNINGS ARE GIVEN OR
SIMPLY FROM THE FACT THAT A CONFESSION WAS IN FACT EVENTUALLY
OBTAINED.  A STATEMENT WE MADE IN CARNLEY V. COCHRAN, 369 U.S. 506, 516
(1962), IS APPLICABLE HERE: 

"PRESUMING WAIVER FROM A SILENT RECORD IS IMPERMISSIBLE.  THE RECORD
MUST SHOW, OR THERE MUST BE AN ALLEGATION AND EVIDENCE WHICH SHOW, THAT
AN ACCUSED WAS OFFERED COUNSEL BUT INTELLIGENTLY AND UNDERSTANDINGLY
REJECTED THE OFFER.  ANYTHING LESS IS NOT A WAIVER." 

SEE ALSO GLASSER V. UNITED STATES, 315 U.S. 60 (1942).  MOREOVER,
WHERE IN-CUSTODY INTERROGATION IS INVOLVED, THERE IS NO ROOM FOR THE
CONTENTION THAT THE PRIVILEGE IS WAIVED IF THE INDIVIDUAL ANSWERS SOME
QUESTIONS OR GIVES SOME INFORMATION ON HIS OWN PRIOR TO INVOKING HIS
RIGHT TO REMAIN SILENT WHEN INTERROGATED.  (FN45)    WHATEVER THE
TESTIMONY OF THE AUTHORITIES AS TO WAIVER OF RIGHTS BY AN ACCUSED, THE
FACT OF LENGTHY INTERROGATION OR INCOMMUNICADO INCARCERATION BEFORE A
STATEMENT IS MADE IS STRONG EVIDENCE THAT THE ACCUSED DID NOT VALIDLY
WAIVE HIS RIGHTS.  IN THESE CIRCUMSTANCES THE FACT THAT THE INDIVIDUAL
EVENTUALLY MADE A STATEMENT IS CONSISTENT WITH THE CONCLUSION THAT THE
COMPELLING INFLUENCE OF THE INTERROGATION FINALLY FORCED HIM TO DO SO.
IT IS INCONSISTENT WITH ANY NOTION OF A VOLUNTARY RELINQUISHMENT OF THE
PRIVILEGE.  MOREOVER, ANY EVIDENCE THAT THE ACCUSED WAS THREATENED,
TRICKED, OR CAJOLED INTO A WAIVER WILL, OF COURSE, SHOW THAT THE
DEFENDANT DID NOT VOLUNTARILY WAIVE HIS PRIVILEGE.  THE REQUIREMENT OF
WARNINGS AND WAIVER OF RIGHTS IS A FUNDAMENTAL WITH RESPECT TO THE
FIFTH AMENDMENT PRIVILEGE AND NOT SIMPLY A PRELIMINARY RITUAL TO
EXISTING METHODS OF INTERROGATION. 

THE WARNINGS REQUIRED AND THE WAIVER NECESSARY IN ACCORDANCE WITH OUR
OPINION TODAY ARE, IN THE ABSENCE OF A FULLY EFFECTIVE EQUIVALENT,
PREREQUISITES TO THE ADMISSIBILITY OF ANY STATEMENT MADE BY A
DEFENDANT.  NO DISTINCTION CAN BE DRAWN BETWEEN STATEMENTS WHICH ARE
DIRECT CONFESSIONS AND STATEMENTS WHICH AMOUNT TO "ADMISSIONS" OF PART
OR ALL OF AN OFFENSE.  THE PRIVILEGE AGAINST SELF-INCRIMINATION
PROTECTS THE INDIVIDUAL FROM BEING COMPELLED TO INCRIMINATE HIMSELF IN
ANY MANNER; IT DOES NOT DISTINGUISH DEGREES OF INCRIMINATION. 
SIMILARLY, FOR PRECISELY THE SAME REASON, NO DISTINCTION MAY BE DRAWN
BETWEEN INCULPATORY STATEMENTS AND STATEMENTS ALLEGED TO BE MERELY
"EXCULPATORY."  IF A STATEMENT MADE WERE IN FACT TRULY EXCULPATORY IT
WOULD, OF COURSE, NEVER BE USED BY THE PROSECUTION.  IN FACT,
STATEMENTS MERELY INTENDED TO BE EXCULPATORY BY THE DEFENDANT ARE OFTEN
USED TO IMPEACH HIS TESTIMONY AT TRIAL OR TO DEMONSTRATE UNTRUTHS IN
THE STATEMENTS GIVEN UNDER INTERROGATION AND THUS TO PROVE GUILT BY
IMPLICATION.  THESE STATEMENTS ARE INCRIMINATING IN ANY MEANINGFUL
SENSE OF THE WORD AND MAY NOT BE USED WITHOUT THE FULL WARNINGS AND
EFFECTIVE WAIVER REQUIRED FOR ANY OTHER STATEMENT.  IN ESCOBEDO ITSELF,
THE DEFENDANT FULLY INTENDED HIS ACCUSATION OF ANOTHER AS THE SLAYER TO
BE EXCULPATORY AS TO HIMSELF. 

THE PRINCIPLES ANNOUNCED TODAY DEAL WITH THE PROTECTION WHICH MUST BE
GIVEN TO THE PRIVILEGE AGAINST SELF-INCRIMINATION WHEN THE INDIVIDUAL
IS FIRST SUBJECTED TO POLICE INTERROGATION WHILE IN CUSTODY AT THE
STATION OR OTHERWISE DEPRIVED OF HIS FREEDOM OF ACTION IN ANY
SIGNIFICANT WAY.  IT IS AT THIS POINT THAT OUR ADVERSARY SYSTEM OF
CRIMINAL PROCEEDINGS COMMENCES, DISTINGUISHING ITSELF AT THE OUTSET
FROM THE INQUISITORIAL SYSTEM RECOGNIZED IN SOME COUNTRIES.  UNDER THE
SYSTEM OF WARNINGS WE DELINEATE TODAY OR UNDER ANY OTHER SYSTEM WHICH
MAY BE DEVISED AND FOUND EFFECTIVE, THE SAFEGUARDS TO BE ERECTED ABOUT
THE PRIVILEGE MUST COME INTO PLAY AT THIS POINT. 

OUR DECISION IS NOT INTENDED TO HAMPER THE TRADITIONAL FUNCTION OF
POLICE OFFICERS IN INVESTIGATING CRIME.  SEE ESCOBEDO V. ILLINOIS, 378
U.S. 478, 492.  WHEN AN INDIVIDUAL IS IN CUSTODY ON PROBABLE CAUSE, THE
POLICE MAY, OF COURSE, SEEK OUT EVIDENCE IN THE FIELD TO BE USED AT
TRIAL AGAINST HIM.  SUCH INVESTIGATION MAY INCLUDE INQUIRY OF PERSONS
NOT UNDER RESTRAINT.  GENERAL ON-THE-SCENE QUESTIONING AS TO FACTS
SURROUNDING A CRIME OR OTHER GENERAL QUESTIONING OF CITIZENS IN THE
FACT-FINDING PROCESS IS NOT AFFECTED BY OUR HOLDING.  IT IS AN ACT OF
RESPONSIBLE CITIZENSHIP FOR INDIVIDUALS TO GIVE WHATEVER INFORMATION
THEY MAY HAVE TO AID IN LAW ENFORCEMENT.  IN SUCH SITUATIONS THE
COMPELLING ATMOSPHERE INHERENT IN THE PROCESS OF IN-CUSTODY
INTERROGATION IS NOT NECESSARILY PRESENT.  (FN46) 

IN DEALING WITH STATEMENTS OBTAINED THROUGH INTERROGATION, WE DO NOT
PURPORT TO FIND ALL CONFESSIONS INADMISSIBLE.  CONFESSIONS REMAIN A
PROPER ELEMENT IN LAW ENFORCEMENT.  ANY STATEMENT GIVEN FREELY AND
VOLUNTARILY WITHOUT ANY COMPELLING INFLUENCES IS, OF COURSE, ADMISSIBLE
IN EVIDENCE.  THE FUNDAMENTAL IMPORT OF THE PRIVILEGE WHILE AN
INDIVIDUAL IS IN CUSTODY IS NOT WHETHER HE IS ALLOWED TO TALK TO THE
POLICE WITHOUT THE BENEFIT OF WARNINGS AND COUNSEL, BUT WHETHER HE CAN
BE INTERROGATED.  THERE IS NO REQUIREMENT THAT POLICE STOP A PERSON WHO
ENTERS A POLICE STATION AND STATES THAT HE WISHES TO CONFESS TO A
CRIME,  (FN47) OR A PERSON WHO CALLS THE POLICE TO OFFER A CONFESSION
OR ANY OTHER STATEMENT HE DESIRES TO MAKE.  VOLUNTEERED STATEMENTS OF
ANY KIND ARE NOT BARRED BY THE FIFTH AMENDMENT AND THEIR ADMISSIBILITY
IS NOT AFFECTED BY OUR HOLDING TODAY. 

TO SUMMARIZE, WE HOLD THAT WHEN AN INDIVIDUAL IS TAKEN INTO CUSTODY
OR OTHERWISE DEPRIVED OF HIS FREEDOM BY THE AUTHORITIES IN ANY
SIGNIFICANT WAY AND IS SUBJECTED TO QUESTIONING, THE PRIVILEGE AGAINST
SELF-INCRIMINATION IS JEOPARDIZED.  PROCEDURAL SAFEGUARDS MUST BE
EMPLOYED TO PROTECT THE PRIVILEGE, AND UNLESS OTHER FULLY EFFECTIVE
MEANS ARE ADOPTED TO NOTIFY THE PERSON OF HIS RIGHT OF SILENCE AND TO
ASSURE THAT THE EXERCISE OF THE RIGHT WILL BE SCRUPULOUSLY HONORED, THE
FOLLOWING MEASURES ARE REQUIRED.  HE MUST BE WARNED PRIOR TO ANY
QUESTIONING THAT HE HAS THE RIGHT TO REMAIN SILENT, THAT ANYTHING HE
SAYS CAN BE USED AGAINST HIM IN A COURT OF LAW, THAT HE HAS THE RIGHT
TO THE PRESENCE OF AN ATTORNEY, AND THAT IF HE CANNOT AFFORD AN
ATTORNEY ONE WILL BE APPOINTED FOR HIM PRIOR TO ANY QUESTIONING IF HE
SO DESIRES.  OPPORTUNITY TO EXERCISE THESE RIGHTS MUST BE AFFORDED TO
HIM THROUGHOUT THE INTERROGATION.  AFTER SUCH WARNINGS HAVE BEEN GIVEN,
AND SUCH OPPORTUNITY AFFORDED HIM, THE INDIVIDUAL MAY KNOWINGLY AND
INTELLIGENTLY WAIVE THESE RIGHTS AND AGREE TO ANSWER QUESTIONS OR MAKE
A STATEMENT.  BUT UNLESS AND UNTIL SUCH WARNINGS AND WAIVER ARE
DEMONSTRATED BY THE PROSECUTION AT TRIAL, NO EVIDENCE OBTAINED AS A
RESULT OF INTERROGATION CAN BE USED AGAINST HIM.   (FN48)

                         IV. 

A RECURRENT ARGUMENT MADE IN THESE CASES IS THAT SOCIETY'S NEED FOR
INTERROGATION OUTWEIGHS THE PRIVILEGE.  THIS ARGUMENT IS NOT UNFAMILIAR
TO THIS COURT.  SEE, E.G., CHAMBERS V. FLORIDA, 309 U.S. 227, 240-241
(1940).  THE WHOLE THRUST OF OUR FOREGOING DISCUSSION DEMONSTRATES THAT
THE CONSTITUTION HAS PRESCRIBED THE RIGHTS OF THE INDIVIDUAL WHEN
CONFRONTED WITH THE POWER OF GOVERNMENT WHEN IT PROVIDED IN THE FIFTH
AMENDMENT THAT AN INDIVIDUAL CANNOT BE COMPELLED TO BE A WITNESS
AGAINST HIMSELF.  THAT RIGHT CANNOT BE ABRIDGED.  AS MR. JUSTICE
BRANDEIS ONCE OBSERVED: 

"DECENCY, SECURITY AND LIBERTY ALIKE DEMAND THAT GOVERNMENT OFFICIALS
SHALL BE SUBJECTED TO THE SAME RULES OF CONDUCT THAT ARE COMMANDS TO
THE CITIZEN.  IN A GOVERNMENT OF LAWS, EXISTENCE OF THE GOVERNMENT WILL
BE IMPERILLED IF IT FAILS TO OBSERVE THE LAW SCRUPULOUSLY.  OUR
GOVERNMENT IS THE POTENT, THE OMNIPRESENT TEACHER.  FOR GOOD OR FOR
ILL, IT TEACHES THE WHOLE PEOPLE BY ITS EXAMPLE.  CRIME IS CONTAGIOUS. 
IF THE GOVERNMENT BECOMES A LAWBREAKER, IT BREEDS CONTEMPT FOR LAW; IT
INVITES EVERY MAN TO BECOME A LAW UNTO HIMSELF; IT INVITES ANARCHY.  TO
DECLARE THAT IN THE ADMINISTRATION OF THE CRIMINAL LAW THE END
JUSTIFIES THE MEANS  ...  WOULD BRING TERRIBLE RETRIBUTION.  AGAINST
THAT PERNICIOUS DOCTRINE THIS COURT SHOULD RESOLUTELY SET ITS FACE." 
OLMSTEAD V. UNITED STATES, 277 U.S.  438, 485 (1928)(DISSENTING
OPINION).  (FN49) 

IN THIS CONNECTION, ONE OF OUR COUNTRY'S DISTINGUISHED JURISTS HAS
POINTED OUT:  "THE QUALITY OF A NATION'S CIVILIZATION CAN BE LARGELY
MEASURED BY THE METHODS IT USES IN THE ENFORCEMENT OF ITS CRIMINAL
LAW."  (FN50) 

IF THE INDIVIDUAL DESIRES TO EXERCISE HIS PRIVILEGE, HE HAS THE RIGHT
TO DO SO.  THIS IS NOT FOR THE AUTHORITIES TO DECIDE.  AN ATTORNEY MAY
ADVISE HIS CLIENT NOT TO TALK TO POLICE UNTIL HE HAS HAD AN OPPORTUNITY
TO INVESTIGATE THE CASE, OR HE MAY WISH TO BE PRESENT WITH HIS CLIENT
DURING ANY POLICE QUESTIONING.  IN DOING SO AN ATTORNEY IS MERELY
EXERCISING THE GOOD PROFESSIONAL JUDGMENT HE HAS BEEN TAUGHT.  THIS IS
NOT CAUSE FOR CONSIDERING THE ATTORNEY A MENACE TO LAW ENFORCEMENT.  HE
IS MERELY CARRYING OUT WHAT HE IS SWORN TO DO UNDER HIS OATH - TO
PROTECT TO THE EXTENT OF HIS ABILITY THE RIGHTS OF HIS CLIENT.  IN
FULFILLING THIS RESPONSIBILITY THE ATTORNEY PLAYS A VITAL ROLE IN THE
ADMINISTRATION OF CRIMINAL JUSTICE UNDER OUR CONSTITUTION. 

IN ANNOUNCING THESE PRINCIPLES, WE ARE NOT UNMINDFUL OF THE BURDENS
WHICH LAW ENFORCEMENT OFFICIALS MUST BEAR, OFTEN UNDER TRYING
CIRCUMSTANCES.  WE ALSO FULLY RECOGNIZE THE OBLIGATION OF ALL CITIZENS
TO AID IN ENFORCING THE CRIMINAL LAWS.  THIS COURT, WHILE PROTECTING
INDIVIDUAL RIGHTS, HAS ALWAYS GIVEN AMPLE LATITUDE TO LAW ENFORCEMENT
AGENCIES IN THE LEGITIMATE EXERCISE OF THEIR DUTIES.  THE LIMITS WE
HAVE PLACED ON THE INTERROGATION PROCESS SHOULD NOT CONSTITUTE AN UNDUE
INTERFERENCE WITH A PROPER SYSTEM OF LAW ENFORCEMENT.  AS WE HAVE
NOTED, OUR DECISION DOES NOT IN ANY WAY PRECLUDE POLICE FROM CARRYING
OUT THEIR TRADITIONAL INVESTIGATORY FUNCTIONS.  ALTHOUGH CONFESSIONS
MAY PLAY AN IMPORTANT ROLE IN SOME CONVICTIONS, THE CASES BEFORE US
PRESENT GRAPHIC EXAMPLES OF THE OVERSTATEMENT OF THE "NEED" FOR
CONFESSIONS.  IN EACH CASE AUTHORITIES CONDUCTED INTERROGATIONS RANGING
UP TO FIVE DAYS IN DURATION DESPITE THE PRESENCE, THROUGH STANDARD
INVESTIGATING RACTICES, OF CONSIDERABLE EVIDENCE AGAINST EACH
DEFENDANT.  (FN51)  FURTHER EXAMPLES ARE CHRONICLED IN OUR PRIOR
CASES.  SEE, E.G., HAYNES V. WASHINGTON, 373 U.S. 503, 518-519 (1963);
ROGERS V. RICHMOND, 365 U.S. 534, 541 (1961); MALINSKI V. NEW YORK, 324
U.S. 401, 402 (1945).  (FN52) 

IT ALSO URGED THAT AN UNFETTERED RIGHT TO DETENTION FOR INTERROGATION
SHOULD BE ALLOWED BECAUSE IT WILL OFTEN REDOUND TO THE BENEFIT OF THE
PERSON QUESTIONED.  WHEN POLICE INQUIRY DETERMINES THAT THERE IS NO
REASON TO BELIEVE THAT THE PERSON HAS COMMITTED ANY CRIME, IT IS SAID,
HE WILL BE RELEASED WITHOUT NEED FOR FURTHER FORMAL PROCEDURES.  THE
PERSON WHO HAS COMMITTED NO OFFENSE, HOWEVER, WILL BE BETTER ABLE TO
CLEAR HIMSELF AFTER WARNINGS WITH COUNSEL PRESENT THAN WITHOUT.  IT CAN
BE ASSUMED THAT IN SUCH CIRCUMSTANCES A LAWYER WOULD ADVISE HIS CLIENT
TO TALK FREELY TO POLICE IN ORDER TO CLEAR HIMSELF. 

CUSTODIAL INTERROGATION, BY CONTRAST, DOES NOT NECESSARILY AFFORD THE
INNOCENT AN OPPORTUNITY TO CLEAR THEMSELVES.  A SERIOUS CONSEQUENCE OF
THE PRESENT PRACTICE OF THE INTERROGATION ALLEGED TO BE BENEFICIAL FOR
THE INNOCENT IS THAT MANY ARRESTS "FOR INVESTIGATION" SUBJECT LARGE
NUMBERS OF INNOCENT PERSONS TO DETENTION AND INTERROGATION.  IN ONE OF
THE CASES BEFORE US, NO. 584, CALIFORNIA V. STEWART, POLICE HELD FOUR
PERSONS, WHO WERE IN THE DEFENDANT'S HOUSE AT THE TIME OF THE ARREST,
IN JAIL FOR FIVE DAYS UNTIL DEFENDANT CONFESSED.  AT THAT TIME THEY
WERE FINALLY RELEASED.  POLICE STATED THAT THERE WAS "NO EVIDENCE TO
CONNECT THEM WITH ANY CRIME."  AVAILABLE STATISTICS ON THE EXTENT OF
THIS PRACTICE WHERE IT IS CONDONED INDICATE THAT THESE FOUR ARE FAR
FROM ALONE IN BEING SUBJECTED TO ARREST, PROLONGED DETENTION, AND
INTERROGATION WITHOUT THE REQUISITE PROBABLE CAUSE.  (FN53) 

OVER THE YEARS THE FEDERAL BUREAU OF INVESTIGATION HAS COMPILED AN
EXEMPLARY RECORD OF EFFECTIVE LAW ENFORCEMENT WHILE ADVISING ANY
SUSPECT OR ARRESTED PERSON, AT THE OUTSET OF AN INTERVIEW, THAT HE IS
NOT REQUIRED TO MAKE A STATEMENT, THAT ANY STATEMENT MAY BE USED
AGAINST HIM IN COURT, THAT THE INDIVIDUAL MAY OBTAIN THE SERVICES OF AN
ATTORNEY OF HIS OWN CHOICE AND, MORE RECENTLY, THAT HE HAS A RIGHT TO
FREE COUNSEL IF HE IS UNABLE TO PAY.  (FN54)  A LETTER RECEIVED FROM
THE SOLICITOR GENERAL IN RESPONSE TO A QUESTION FROM THE BENCH MAKES IT
CLEAR THAT THE PRESENT PATTERN OF WARNINGS AND RESPECT FOR THE RIGHTS
OF THE INDIVIDUAL FOLLOWED AS A PRACTICE BY THE FBI IS CONSISTENT WITH
THE PROCEDURE WHICH WE DELINEATE TODAY.  IT STATES: 

"AT THE ORAL ARGUMENT OF THE ABOVE CAUSE, MR. JUSTICE FORTAS ASKED
WHETHER I COULD PROVIDE CERTAIN INFORMATION AS TO THE PRACTICES
FOLLOWED BY THE FEDERAL BUREAU OF INVESTIGATION.  I HAVE DIRECTED THESE
QUESTIONS TO THE ATTENTION OF THE DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION AND AM SUBMITTING HEREWITH A STATEMENT OF THE QUESTIONS
AND OF THE ANSWERS WHICH WE HAVE RECEIVED. 

"'(1)  WHEN AN INDIVIDUAL IS INTERVIEWED BY AGENTS OF THE BUREAU,
WHAT WARNING IS GIVEN TO HIM? 

"'THE STANDARD WARNING LONG GIVEN BY SPECIAL AGENTS OF THE FBI TO
BOTH SUSPECTS AND PERSONS UNDER ARREST IS THAT THE PERSON HAS A RIGHT
TO SAY NOTHING AND A RIGHT TO COUNSEL, AND THAT ANY STATEMENT HE DOES
MAKE MAY BE USED AGAINST HIM IN COURT.  EXAMPLES OF THIS WARNING ARE TO
BE FOUND IN THE WESTOVER CASE AT 342 F.2D 684 (1965), AND JACKSON V.
U.S., 337 F.2D 136 (1964), CERT. DEN.  380 U.S. 935. 

"'AFTER PASSAGE OF THE CRIMINAL JUSTICE ACT OF 1964, WHICH PROVIDES
FREE COUNSEL FOR FEDERAL DEFENDANTS UNABLE TO PAY, WE ADDED TO OUR
INSTRUCTIONS TO SPECIAL AGENTS THE REQUIREMENT THAT ANY PERSON WHO IS
UNDER ARREST FOR AN OFFENSE UNDER FBI JURISDICTION, OR WHOSE ARREST IS
CONTEMPLATED FOLLOWING THE INTERVIEW, MUST ALSO BE ADVISED OF HIS RIGHT
TO FREE COUNSEL IF HE IS UNABLE TO PAY, AND THE FACT THAT SUCH COUNSEL
WILL BE ASSIGNED BY THE JUDGE.  AT THE SAME TIME, WE BROADENED THE
RIGHT TO COUNSEL WARNING TO READ COUNSEL OF HIS OWN CHOICE, OR ANYONE
ELSE WITH WHOM HE MIGHT WISH TO SPEAK. 

"'(2)  WHEN IS THE WARNING GIVEN? 

"'THE FBI WARNING IS GIVEN TO A SUSPECT AT THE VERY OUTSET OF THE
INTERVIEW, AS SHOWN IN THE WESTOVER CASE, CITED ABOVE.  THE WARNING MAY
BE GIVEN TO A PERSON ARRESTED AS SOON AS PRACTICABLE AFTER THE ARREST,
AS SHOWN IN THE JACKSON CASE, ALSO CITED ABOVE, AND IN U.S. V.
KONIGSBERG, 336 F.2D 844 (1964), CERT. DEN.  379 U.S. 933, BUT IN ANY
EVENT IT MUST PRECEDE THE INTERVIEW WITH THE PERSON FOR A CONFESSION OR
ADMISSION OF HIS OWN GUILT. 

"'(3)  WHAT IS THE BUREAU'S PRACTICE IN THE EVENT THAT (A) THE
INDIVIDUAL REQUESTS COUNSEL AND (B) COUNSEL APPEARS?    "'WHEN THE
PERSON WHO HAS BEEN WARNED OF HIS RIGHT TO COUNSEL DECIDES THAT HE
WISHES TO CONSULT WITH COUNSEL BEFORE MAKING A STATEMENT, THE INTERVIEW
IS TERMINATED AT THAT POINT, SHULTZ V. U.S., 351 F.2D 287 (1965).  IT
MAY BE CONTINUED, HOWEVER, AS TO ALL MATTERS OTHER THAN THE PERSON'S
OWN GUILT OR INNOCENCE.  IF HE IS INDECISIVE IN HIS REQUEST FOR
COUNSEL, THERE MAY BE SOME QUESTION ON WHETHER HE DID OR DID NOT WAIVE
COUNSEL.  SITUATIONS OF THIS KIND MUST NECESSARILY BE LEFT TO THE
JUDGMENT OF THE INTERVIEWING AGENT.  FOR EXAMPLE, IN HIRAM V. U.S., 354
F.2D 4 (1965), THE AGENT'S CONCLUSION THAT THE PERSON ARRESTED HAD
WAIVED HIS RIGHT TO COUNSEL WAS UPHELD BY THE COURTS.    "'A PERSON
BEING INTERVIEWED AND DESIRING TO CONSULT COUNSEL BY TELEPHONE MUST BE
PERMITTED TO DO SO, AS SHOWN IN CALDWELL V. U.S., 351 F.2D 459 (1965). 
WHEN COUNSEL APPEARS IN PERSON, HE IS PERMITTED TO CONFER WITH HIS
CLIENT IN PRIVATE. 

"'(4)  WHAT IS THE BUREAU'S PRACTICE IF THE INDIVIDUAL REQUESTS
COUNSEL, BUT CANNOT AFFORD TO RETAIN AN ATTORNEY? 

"'IF ANY PERSON BEING INTERVIEWED AFTER WARNING OF COUNSEL DECIDES
THAT HE WISHES TO CONSULT WITH COUNSEL BEFORE PROCEEDING FURTHER THE
INTERVIEW IS TERMINATED, AS SHOWN ABOVE.  FBI AGENTS DO NOT PASS
JUDGMENT ON THE ABILITY OF THE PERSON TO PAY FOR COUNSEL.  THEY DO,
HOWEVER, ADVISE THOSE WHO HAVE BEEN ARRESTED FOR AN OFFENSE UNDER FBI
JURISDICTION, OR WHOSE ARREST IS CONTEMPLATED FOLLOWING THE INTERVIEW,
OF A RIGHT TO FREE COUNSEL IF THEY ARE UNABLE TO PAY, AND THE
AVAILABILITY OF SUCH COUNSEL FROM THE JUDGE.'"  (FN55) 

THE PRACTICE OF THE FBI CAN READILY BE EMULATED BY STATE AND LOCAL
ENFORCEMENT AGENCIES.  THE ARGUMENT THAT THE FBI DEALS WITH DIFFERENT
CRIMES THAN ARE DEALT WITH BY STATE AUTHORITIES DOES NOT MITIGATE THE
SIGNIFICANCE OF THE FBI EXPERIENCE.  (FN56) 

THE EXPERIENCE OF SOME OTHER COUNTRIES ALSO SUGGESTS THAT THE DANGER
TO LAW ENFORCEMENT IN CURBS ON INTERROGATION IS OVERPLAYED.  THE
ENGLISH PROCEDURE SINCE 1912 UNDER THE JUDGES' RULES IS SIGNIFICANT. 
AS RECENTLY STRENGTHENED, THE RULES REQUIRE THAT A CAUTIONARY WARNING
BE GIVEN AN ACCUSED BY A POLICE OFFICER AS SOON AS HE HAS EVIDENCE THAT
AFFORDS REASONABLE GROUNDS FOR SUSPICION; THEY ALSO REQUIRE THAT ANY
STATEMENT MADE BE GIVEN BY THE ACCUSED WITHOUT QUESTIONING BY POLICE. 
(FN57)  THE RIGHT OF THE INDIVIDUAL TO CONSULT WITH AN ATTORNEY DURING
THIS PERIOD IS EXPRESSLY RECOGNIZED.  (FN58) 

THE SAFEGUARDS PRESENT UNDER SCOTTISH LAW MAY BE EVEN GREATER THAN IN
ENGLAND.  SCOTTISH JUDICIAL DECISIONS BAR USE IN EVIDENCE OF MOST
CONFESSIONS OBTAINED THROUGH POLICE INTERROGATION.  (FN59)  IN INDIA,
CONFESSIONS MADE TO POLICE NOT IN THE PRESENCE OF A MAGISTRATE HAVE
BEEN EXCLUDED BY RULE OF EVIDENCE SINCE 1872, AT A TIME WHEN IT
OPERATED UNDER BRITISH LAW.  (FN60)  IDENTICAL PROVISIONS APPEAR IN THE
EVIDENCE ORDINANCE OF CEYLON, ENACTED IN 1895.  (FN61)  SIMILARLY, IN
OUR COUNTRY THE UNIFORM CODE OF MILITARY JUSTICE HAS LONG PROVIDED THAT
NO SUSPECT MAY BE INTERROGATED WITHOUT FIRST BEING WARNED OF HIS RIGHT
NOT TO MAKE A STATEMENT AND THAT ANY STATEMENT HE MAKES MAY BE USED
AGAINST HIM.  (FN62)  DENIAL OF THE RIGHT TO CONSULT COUNSEL DURING
INTERROGATION HAS ALSO BEEN PROSCRIBED BY MILITARY TRIBUNALS.  (FN63)
THERE APPEARS TO HAVE BEEN NO MARKED DETRIMENTAL EFFECT ON CRIMINAL LAW
ENFORCEMENT IN THESE JURISDICTIONS AS A RESULT OF THESE RULES. 
CONDITIONS OF LAW ENFORCEMENT IN OUR COUNTRY ARE SUFFICIENTLY SIMILAR
TO PERMIT REFERENCE TO THIS EXPERIENCE AS ASSURANCE THAT LAWLESSNESS
WILL NOT RESULT FROM WARNING AN INDIVIDUAL OF HIS RIGHTS OR ALLOWING
HIM TO EXERCISE THEM.  MOREOVER, IT IS CONSISTENT WITH OUR LEGAL SYSTEM
THAT WE GIVE AT LEAST AS MUCH PROTECTION TO THESE RIGHTS AS IS GIVEN IN
THE JURISDICTIONS DESCRIBED.  WE DEAL IN OUR COUNTRY WITH RIGHTS
GROUNDED IN A SPECIFIC REQUIREMENT OF THE FIFTH AMENDMENT OF THE
CONSTITUTION, WHEREAS OTHER JURISDICTIONS ARRIVED AT THEIR CONCLUSIONS
ON THE BASIS OF PRINCIPLES OF JUSTICE NOT SO SPECIFICALLY DEFINED. 
(FN64) 

IT IS ALSO URGED UPON US THAT WE WITHHOLD DECISION ON THIS ISSUE
UNTIL STATE LEGISLATIVE BODIES AND ADVISORY GROUPS HAVE HAD AN
OPPORTUNITY TO DEAL WITH THESE PROBLEMS BY RULE MAKING.  (FN65)  WE
HAVE ALREADY POINTED OUT THAT THE CONSTITUTION DOES NOT REQUIRE ANY
SPECIFIC CODE OF PROCEDURES FOR PROTECTING THE PRIVILEGE AGAINST SELF
INCRIMINATION DURING CUSTODIAL INTERROGATION.  CONGRESS AND THE STATES
ARE FREE TO DEVELOP THEIR OWN SAFEGUARDS FOR THE PRIVILEGE, SO LONG AS
THEY ARE FULLY AS EFFECTIVE AS THOSE DESCRIBED ABOVE IN INFORMING
ACCUSED PERSONS OF THEIR RIGHT OF SILENCE AND IN AFFORDING A CONTINUOUS
OPPORTUNITY TO EXERCISE IT.  IN ANY EVENT, HOWEVER, THE ISSUES
PRESENTED ARE OF CONSTITUTIONAL DIMENSIONS AND MUST BE DETERMINED BY
THE COURTS.  THE ADMISSIBILITY OF A STATEMENT IN THE FACE OF A CLAIM
THAT IT WAS OBTAINED IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL
RIGHTS IS AN ISSUE THE RESOLUTION OF WHICH HAS LONG SINCE BEEN
UNDERTAKEN BY THIS COURT.  SEE HOPT V. UTAH, 110 U.S. 574 (1884). 
JUDICIAL SOLUTIONS TO PROBLEMS OF CONSTITUTIONAL DIMENSION HAVE EVOLVED
DECADE BY DECADE.  AS COURTS HAVE BEEN PRESENTED WITH THE NEED TO
ENFORCE CONSTITUTIONAL RIGHTS, THEY HAVE FOUND MEANS OF DOING SO.  THAT
WAS OUR RESPONSIBILITY WHEN ESCOBEDO WAS BEFORE US AND IT IS OUR
RESPONSIBILITY TODAY.  WHERE RIGHTS SECURED BY THE CONSTITUTION ARE
INVOLVED, THERE CAN BE NO RULE MAKING OR LEGISLATION WHICH WOULD
ABROGATE THEM. 

                                      V. 

BECAUSE OF THE NATURE OF THE PROBLEM AND BECAUSE OF ITS RECURRENT
SIGNIFICANCE IN NUMEROUS CASES, WE HAVE TO THIS POINT DISCUSSED THE
RELATIONSHIP OF THE FIFTH AMENDMENT PRIVILEGE TO POLICE INTERROGATION
WITHOUT SPECIFIC CONCENTRATION ON THE FACTS OF THE CASES BEFORE US.  WE
TURN NOW TO CONSIDER THE APPLICATION TO THESE CASES OF THE
CONSTITUTIONAL PRINCIPLES DISCUSSED ABOVE.  IN EACH INSTANCE, WE HAVE
CONCLUDED THAT STATEMENTS WERE OBTAINED FROM THE DEFENDANT UNDER
CIRCUMSTANCES THAT DID NOT MEET CONSTITUTIONAL STANDARDS FOR PROTECTION
OF THE PRIVILEGE. 

NO. 759.  MIRANDA V. ARIZONA. 

ON MARCH 13, 1963, PETITIONER, ERNESTO MIRANDA, WAS ARRESTED AT HIS
HOME AND TAKEN IN CUSTODY TO A PHOENIX POLICE STATION.  HE WAS THERE
IDENTIFIED BY THE COMPLAINING WITNESS.  THE POLICE THEN TOOK HIM TO
"INTERROGATION ROOM NO. 2" OF THE DETECTIVE BUREAU.  THERE HE WAS
QUESTIONED BY TWO POLICE OFFICERS.  THE OFFICERS ADMITTED AT TRIAL THAT
MIRANDA WAS NOT ADVISED THAT HE HAD A RIGHT TO HAVE AN ATTORNEY
PRESENT.  (FN66) TWO HOURS LATER, THE OFFICERS EMERGED FROM THE
INTERROGATION ROOM WITH A WRITTEN CONFESSION SIGNED BY MIRANDA.  AT THE
TOP OF THE STATEMENT WAS A TYPED PARAGRAPH STATING THAT THE CONFESSION
WAS MADE VOLUNTARILY, WITHOUT THREATS OR PROMISES OF IMMUNITY AND "WITH
FULL KNOWLEDGE OF MY LEGAL RIGHTS, UNDERSTANDING ANY STATEMENT I MAKE
MAY BE USED AGAINST ME."  (FN67) 

AT HIS TRIAL BEFORE A JURY, THE WRITTEN CONFESSION WAS ADMITTED INTO
EVIDENCE OVER THE OBJECTION OF DEFENSE COUNSEL, AND THE OFFICERS
TESTIFIED TO THE PRIOR ORAL CONFESSION MADE BY MIRANDA DURING THE
INTERROGATION.  MIRANDA WAS FOUND GUILTY OF KIDNAPPING AND RAPE.  HE
WAS SENTENCED TO 20 TO 30 YEARS' IMPRISONMENT ON EACH COUNT, THE
SENTENCES TO RUN CONCURRENTLY.  ON APPEAL, THE SUPREME COURT OF ARIZONA
HELD THAT MIRANDA'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED IN
OBTAINING THE CONFESSION AND AFFIRMED THE CONVICTION.  98 ARIZ. 18, 401
P.2D 721.  IN REACHING ITS DECISION, THE COURT EMPHASIZED HEAVILY THE
FACT THAT MIRANDA DID NOT SPECIFICALLY REQUEST COUNSEL. 

WE REVERSE.  FROM THE TESTIMONY OF THE OFFICERS AND BY THE ADMISSION
OF RESPONDENT, IT IS CLEAR THAT MIRANDA WAS NOT IN ANY WAY APPRISED OF
HIS RIGHT TO CONSULT WITH AN ATTORNEY AND TO HAVE ONE PRESENT DURING
THE INTERROGATION, NOR WAS HIS RIGHT NOT TO BE COMPELLED TO INCRIMINATE
HIMSELF EFFECTIVELY PROTECTED IN ANY OTHER MANNER.  WITHOUT THESE
WARNINGS THE STATEMENTS WERE INADMISSIBLE.   THE MERE FACT THAT HE
SIGNED A STATEMENT WHICH CONTAINED A TYPED-IN CLAUSE STATING THAT HE
HAD "FULL KNOWLEDGE" OF HIS "LEGAL RIGHTS" DOES NOT APPROACH THE
KNOWING AND INTELLIGENT WAIVER REQUIRED TO RELINQUISH CONSTITUTIONAL
RIGHTS.  CF. HAYNES V. WASHINGTON, 373 U.S. 503, 512-513 (1963); HALEY
V. OHIO, 332 U.S. 596, 601 (1948)(OPINION OF MR. JUSTICE DOUGLAS). 

NO. 760.  VIGNERA V. NEW YORK. 

PETITIONER, MICHAEL VIGNERA, WAS PICKED UP BY NEW YORK POLICE ON
OCTOBER 14, 1960, IN CONNECTION WITH THE ROBBERY THREE DAYS EARLIER OF
A BROOKLYN DRESS SHOP.  THEY TOOK HIM TO THE 17TH DETECTIVE SQUAD
HEADQUARTERS IN MANHATTAN.  SOMETIME THEREAFTER HE WAS TAKEN TO THE
66TH DETECTIVE SQUAD.  THERE A DETECTIVE QUESTIONED VIGNERA WITH
RESPECT TO THE ROBBERY.  VIGNERA ORALLY ADMITTED THE ROBBERY TO THE
DETECTIVE.  THE DETECTIVE WAS ASKED ON CROSS-EXAMINATION AT TRIAL BY
DEFENSE COUNSEL WHETHER VIGNERA WAS WARNED OF HIS RIGHT TO COUNSEL
BEFORE BEING INTERROGATED.  THE PROSECUTION OBJECTED TO THE QUESTION
AND THE TRIAL JUDGE SUSTAINED THE OBJECTION.  THUS, THE DEFENSE WAS
PRECLUDED FROM MAKING ANY SHOWING THAT WARNINGS HAD NOT BEEN GIVEN. 
WHILE AT THE 66TH DETECTIVE SQUAD, VIGNERA WAS IDENTIFIED BY THE STORE
OWNER AND A SALESLADY AS THE MAN WHO ROBBED THE DRESS SHOP.  AT ABOUT 3
P.M. HE WAS FORMALLY ARRESTED.  THE POLICE THEN TRANSPORTED HIM TO
STILL ANOTHER STATION, THE 70TH PRECINCT IN BROOKLYN, "FOR DETENTION." 
AT 11 P.M. VIGNERA WAS QUESTIONED BY AN ASSISTANT DISTRICT ATTORNEY IN
THE PRESENCE OF A HEARING REPORTER WHO TRANSCRIBED THE QUESTIONS AND
VIGNERA'S ANSWERS.  THIS VERBATIM ACCOUNT OF THESE PROCEEDINGS CONTAINS
NO STATEMENT OF ANY WARNINGS GIVEN BY THE ASSISTANT DISTRICT ATTORNEY. 
AT VIGNERA'S TRIAL ON A CHARGE OF FIRST DEGREE ROBBERY, THE DETECTIVE
TESTIFIED AS TO THE ORAL CONFESSION.  THE TRANSCRIPTION OF THE
STATEMENT TAKEN WAS ALSO INTRODUCED IN EVIDENCE.  AT THE CONCLUSION OF
THE TESTIMONY, THE TRIAL JUDGE CHARGED THE JURY IN PART AS FOLLOWS: 

"THE LAW DOESN'T SAY THAT THE CONFESSION IS VOID OR INVALIDATED
BECAUSE THE POLICE OFFICER DIDN'T ADVISE THE DEFENDANT AS TO HIS
RIGHTS.  DID YOU HEAR WHAT I SAID?  I AM TELLING YOU WHAT THE LAW OF
THE STATE OF NEW YORK IS." 

VIGNERA WAS FOUND GUILTY OF FIRST DEGREE ROBBERY.  HE WAS
SUBSEQUENTLY ADJUDGED A THIRD-FELONY OFFENDER AND SENTENCED TO 30 TO 60
YEARS' IMPRISONMENT.  (FN68)  THE CONVICTION WAS AFFIRMED WITHOUT
OPINION BY THE APPELLATE DIVISION, SECOND DEPARTMENT, 21 APP. DIV. 2D
752, 252 N.Y.S.2D 19, AND BY THE COURT OF APPEALS, ALSO WITHOUT
OPINION, 15 N.Y.2D 970, 207 N.E.2D 527, 259 N.Y.S.2D 857, REMITTITUR
AMENDED, 16 N.Y.2D 614, 209 N.E.2D 110, 261 N.Y.S.2D 65.  IN ARGUMENT
TO THE COURT OF APPEALS, THE STATE CONTENDED THAT VIGNERA HAD NO
CONSTITUTIONAL RIGHT TO BE ADVISED OF HIS RIGHT TO COUNSEL OR HIS
PRIVILEGE AGAINST SELF-INCRIMINATION. 

WE REVERSE.  THE FOREGOING INDICATES THAT VIGNERA WAS NOT WARNED OF
ANY OF HIS RIGHTS BEFORE THE QUESTIONING BY THE DETECTIVE AND BY THE
ASSISTANT DISTRICT ATTORNEY.  NO OTHER STEPS WERE TAKEN TO PROTECT
THESE RIGHTS.  THUS HE WAS NOT EFFECTIVELY APPRISED OF HIS FIFTH
AMENDMENT PRIVILEGE OR OF HIS RIGHT TO HAVE COUNSEL PRESENT AND HIS
STATEMENTS ARE INADMISSIBLE. 

NO. 761.  WESTOVER V. UNITED STATES. 

AT APPROXIMATELY 9:45 P.M. ON MARCH 20, 1963, PETITIONER, CARL CALVIN
WESTOVER, WAS ARRESTED BY LOCAL POLICE IN KANSAS CITY AS A SUSPECT IN
TWO KANSAS CITY ROBBERIES.  A REPORT WAS ALSO RECEIVED FROM THE FBI
THAT HE WAS WANTED ON A FELONY CHARGE IN CALIFORNIA.  THE LOCAL
AUTHORITIES TOOK HIM TO A POLICE STATION AND PLACED HIM IN A LINE-UP ON
THE LOCAL CHARGES, AND AT ABOUT 11:45 P.M. HE WAS BOOKED.  KANSAS CITY
POLICE INTERROGATED WESTOVER ON THE NIGHT OF HIS ARREST.  HE DENIED ANY
KNOWLEDGE OF CRIMINAL ACTIVITIES.  THE NEXT DAY LOCAL OFFICERS
INTERROGATED HIM AGAIN THROUGHOUT THE MORNING.  SHORTLY BEFORE NOON
THEY INFORMED THE FBI THAT THEY WERE THROUGH INTERROGATING WESTOVER AND
THAT THE FBI COULD PROCEED TO INTERROGATE HIM.  THERE IS NOTHING IN THE
RECORD TO INDICATE THAT WESTOVER WAS EVER GIVEN ANY WARNINGS AS TO HIS
RIGHTS BY LOCAL POLICE.  AT NOON, THREE SPECIAL AGENTS OF THE FBI
CONTINUED THE INTERROGATION IN A PRIVATE INTERVIEW ROOM OF THE KANSAS
CITY POLICE DEPARTMENT, THIS TIME WITH RESPECT TO THE ROBBERY OF A
SAVINGS AND LOAN ASSOCIATION AND A BANK IN SACRAMENTO, CALIFORNIA. 
AFTER TWO OR TWO AND ONE-HALF HOURS, WESTOVER SIGNED SEPARATE
CONFESSIONS TO EACH OF THESE TWO ROBBERIES WHICH HAD BEEN PREPARED BY
ONE OF THE AGENTS DURING THE INTERROGATION.  AT TRIAL ONE OF THE AGENTS
TESTIFIED, AND A PARAGRAPH ON EACH OF THE STATEMENTS STATES, THAT THE
AGENTS ADVISED WESTOVER THAT HE DID NOT HAVE TO MAKE A STATEMENT, THAT
ANY STATEMENT HE MADE COULD BE USED AGAINST HIM, AND THAT HE HAD THE
RIGHT TO SEE AN ATTORNEY. 

WESTOVER WAS TRIED BY A JURY IN FEDERAL COURT AND CONVICTED OF THE
CALIFORNIA ROBBERIES.  HIS STATEMENTS WERE INTRODUCED AT TRIAL.  HE WAS
SENTENCED TO 15 YEARS' IMPRISONMENT ON EACH COUNT, THE SENTENCES TO RUN
CONSECUTIVELY.  ON APPEAL, THE CONVICTION WAS AFFIRMED BY THE COURT OF
APPEALS FOR THE NINTH CIRCUIT.  342 F.2D 684. 

WE REVERSE.  ON THE FACTS OF THIS CASE WE CANNOT FIND THAT WESTOVER
KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO REMAIN SILENT AND HIS
RIGHT TO CONSULT WITH COUNSEL PRIOR TO THE TIME HE MADE THE STATEMENT. 
(FN69)  AT THE TIME THE FBI AGENTS BEGAN QUESTIONING WESTOVER, HE HAD
BEEN IN CUSTODY FOR OVER 14 HOURS AND HAD BEEN INTERROGATED AT LENGTH
DURING THAT PERIOD.  THE FBI INTERROGATION BEGAN IMMEDIATELY UPON THE
CONCLUSION OF THE INTERROGATION BY KANSAS CITY POLICE AND WAS CONDUCTED
IN LOCAL POLICE HEADQUARTERS.  ALTHOUGH THE TWO LAW ENFORCEMENT
AUTHORITIES ARE LEGALLY DISTINCT AND THE CRIMES FOR WHICH THEY
INTERROGATED WESTOVER WERE DIFFERENT, THE IMPACT ON HIM WAS THAT OF A
CONTINUOUS PERIOD OF QUESTIONING.  THERE IS NO EVIDENCE OF ANY WARNING
GIVEN PRIOR TO THE FBI INTERROGATION NOR IS THERE ANY EVIDENCE OF AN
ARTICULATED WAIVER OF RIGHTS AFTER THE FBI COMMENCED ITS
INTERROGATION.  THE RECORD SIMPLY SHOWS THAT THE DEFENDANT DID IN FACT
CONFESS A SHORT TIME AFTER BEING TURNED OVER TO THE FBI FOLLOWING
INTERROGATION BY LOCAL POLICE.  DESPITE THE FACT THAT THE FBI AGENTS
GAVE WARNINGS AT THE OUTSET OF THEIR INTERVIEW, FROM WESTOVER'S POINT
OF VIEW THE WARNINGS CAME AT THE END OF THE INTERROGATION PROCESS.  IN
THESE CIRCUMSTANCES AN INTELLIGENT WAIVER OF CONSTITUTIONAL RIGHTS
CANNOT BE ASSUMED.    WE DO NOT SUGGEST THAT LAW ENFORCEMENT
AUTHORITIES ARE PRECLUDED FROM QUESTIONING ANY INDIVIDUAL WHO HAS BEEN
HELD FOR A PERIOD OF TIME BY OTHER AUTHORITIES AND INTERROGATED BY THEM
WITHOUT APPROPRIATE WARNINGS.  A DIFFERENT CASE WOULD BE PRESENTED IF
AN ACCUSED WERE TAKEN INTO CUSTODY BY THE SECOND AUTHORITY, REMOVED
BOTH IN TIME AND PLACE FROM HIS ORIGINAL SURROUNDINGS, AND THEN
ADEQUATELY ADVISED OF HIS RIGHTS AND GIVEN AN OPPORTUNITY TO EXERCISE
THEM.  BUT HERE THE FBI INTERROGATION WAS CONDUCTED IMMEDIATELY
FOLLOWING THE STATE INTERROGATION IN THE SAME POLICE STATION - IN THE
SAME COMPELLING SURROUNDINGS.  THUS, IN OBTAINING A CONFESSION FROM
WESTOVER THE FEDERAL AUTHORITIES WERE THE BENEFICIARIES OF THE PRESSURE
APPLIED BY THE LOCAL IN-CUSTODY INTERROGATION.  IN THESE CIRCUMSTANCES
THE GIVING OF WARNINGS ALONE WAS NOT SUFFICIENT TO PROTECT THE
PRIVILEGE. 

NO. 584.  CALIFORNIA V. STEWART. 

IN THE COURSE OF INVESTIGATING A SERIES OF PURSE-SNATCH ROBBERIES IN
WHICH ONE OF THE VICTIMS HAD DIED OF INJURIES INFLICTED BY HER
ASSAILANT, RESPONDENT, ROY ALLEN STEWART, WAS POINTED OUT TO LOS
ANGELES POLICE AS THE ENDORSER OF DIVIDEND CHECKS TAKEN IN ONE OF THE
ROBBERIES.  AT ABOUT 7:15 P.M., JANUARY 31, 1963, POLICE OFFICERS WENT
TO STEWART'S HOUSE AND ARRESTED HIM.  ONE OF THE OFFICERS ASKED STEWART
IF THEY COULD SEARCH THE HOUSE, TO WHICH HE REPLIED, "GO AHEAD."  THE
SEARCH TURNED UP VARIOUS ITEMS TAKEN FROM THE FIVE ROBBERY VICTIMS.  AT
THE TIME OF STEWART'S ARREST, POLICE ALSO ARRESTED STEWART'S WIFE AND
THREE OTHER PERSONS WHO WERE VISITING HIM.  THESE FOUR WERE JAILED
ALONG WITH STEWART AND WERE INTERROGATED.  STEWART WAS TAKEN TO THE
UNIVERSITY STATION OF THE LOS ANGELES POLICE DEPARTMENT WHERE HE WAS
PLACED IN A CELL.  DURING THE NEXT FIVE DAYS, POLICE INTERROGATED
STEWART ON NINE DIFFERENT OCCASIONS.  EXCEPT DURING THE FIRST
INTERROGATION SESSION, WHEN HE WAS CONFRONTED WITH AN ACCUSING WITNESS,
STEWART WAS ISOLATED WITH HIS INTERROGATORS. 

DURING THE NINTH INTERROGATION SESSION, STEWART ADMITTED THAT HE HAD
ROBBED THE DECEASED AND STATED THAT HE HAD NOT MEANT TO HURT HER. 
POLICE THAN BROUGHT STEWART BEFORE A MAGISTRATE FOR THE FIRST TIME. 
SINCE THERE WAS NO EVIDENCE TO CONNECT THEM WITH ANY CRIME, THE POLICE
THEN RELEASED THE OTHER FOUR PERSONS ARRESTED WITH HIM. 

NOTHING IN THE RECORD SPECIFICALLY INDICATES WHETHER STEWART WAS OR
WAS NOT ADVISED OF HIS RIGHT TO REMAIN SILENT OR HIS RIGHT TO COUNSEL. 
IN A NUMBER OF INSTANCES, HOWEVER, THE INTERROGATING OFFICERS WERE
ASKED TO RECOUNT EVERYTHING THAT WAS SAID DURING THE INTERROGATIONS. 
NONE INDICATED THAT STEWART WAS EVER ADVISED OF HIS RIGHTS. 

STEWART WAS CHARGED WITH KIDNAPPING TO COMMIT ROBBERY, RAPE, AND
MURDER.  AT HIS TRIAL, TRANSCRIPTS OF THE FIRST INTERROGATION AND THE
CONFESSION AT THE LAST INTERROGATION WERE INTRODUCED IN EVIDENCE.  THE
JURY FOUND STEWART GUILTY OF ROBBERY AND FIRST DEGREE MURDER AND FIXED
THE PENALTY AS DEATH.  ON APPEAL, THE SUPREME COURT OF CALIFORNIA
REVERSED.  62 CAL. 2D 571, 400 P.2D 97, 43 CAL. RPTR.  201.  IT HELD
THAT UNDER THIS COURT'S DECISION IN ESCOBEDO, STEWART SHOULD HAVE BEEN
ADVISED OF HIS RIGHT TO REMAIN SILENT AND OF HIS RIGHT TO COUNSEL AND
THAT IT WOULD NOT PRESUME IN THE FACE OF A SILENT RECORD THAT THE
POLICE ADVISED STEWART OF HIS RIGHTS.  (FN70) 

WE AFFIRM.  (FN71)  IN DEALING WITH CUSTODIAL INTERROGATION, WE WILL
NOT PRESUME THAT A DEFENDANT HAS BEEN EFFECTIVELY APPRISED OF HIS
RIGHTS AND THAT HIS PRIVILEGE AGAINST SELF-INCRIMINATION HAS BEEN
ADEQUATELY SAFEGUARDED ON A RECORD THAT DOES NOT SHOW THAT ANY WARNINGS
HAVE BEEN GIVEN OR THAT ANY EFFECTIVE ALTERNATIVE HAS BEEN EMPLOYED. 
NOR CAN A KNOWING AND INTELLIGENT WAIVER OF THESE RIGHTS BE ASSUMED ON
A SILENT RECORD.  FURTHERMORE, STEWART'S STEADFAST DENIAL OF THE
ALLEGED OFFENSES THROUGH EIGHT OF THE NINE INTERROGATIONS OVER A PERIOD
OF FIVE DAYS IS SUBJECT TO NO OTHER CONSTRUCTION THAN THAT HE WAS
COMPELLED BY PERSISTENT INTERROGATION TO FORGO HIS FIFTH AMENDMENT
PRIVILEGE. 

THEREFORE, IN ACCORDANCE WITH THE FOREGOING, THE JUDGMENTS OF THE
SUPREME COURT OF ARIZONA IN NO. 759, OF THE NEW YORK COURT OF APPEALS
IN NO. 760, AND OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN NO.
761 ARE REVERSED.  THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA IN
NO. 584 IS AFFIRMED.  IT IS SO ORDERED. 

FN1  COMPARE UNITED STATES V. CHILDRESS, 347 F.2D 448 (C.A. 7TH CIR.
1965), WITH COLLINS V. BETO, 348 F.2D 823 (C.A. 5TH CIR. 1965). 
COMPARE PEOPLE V. DORADO, 62 CAL. 2D 338, 398 P.2D 361, 42 CAL. RPTR. 
169 (1964) WITH PEOPLE V. HARTGRAVES, 31 ILL. 2D 375, 202 N.E.2D 33
(1964). 

FN2  SEE, E.G., ENKER & ELSEN, COUNSEL FOR THE SUSPECT:  MASSIAH V.
UNITED STATES AND ESCOBEDO V. ILLINOIS, 49 MINN. L. REV. 47 (1964);
HERMAN, THE SUPREME COURT AND RESTRICTIONS ON POLICE INTERROGATION, 25
OHIO ST. L.J. 449 (1964); KAMISAR, EQUAL JUSTICE IN THE GATEHOUSES AND
MANSIONS OF AMERICAN CRIMINAL PROCEDURE, IN CRIMINAL JUSTICE IN OUR
TIME 1 (1965); DOWLING, ESCOBEDO AND BEYOND:  THE NEED FOR A FOURTEENTH
AMENDMENT CODE OF CRIMINAL PROCEDURE, 56 J. CRIM. L., C.&P.S. 143, 156
(1965). 

THE COMPLEX PROBLEMS ALSO PROMPTED DISCUSSIONS BY JURISTS.  COMPARE
BAZELON, LAW, MORALITY, AND CIVIL LIBERTIES, 12 U.C.L.A.L. REV. 13
(1964), WITH FRIENDLY, THE BILL OF RIGHTS AS A CODE OF CRIMINAL
PROCEDURE, 53 CALIF. L. REV. 929 (1965). 

FN3  FOR EXAMPLE, THE LOS ANGELES POLICE CHIEF STATED THAT "IF THE
POLICE ARE REQUIRED ...  TO ...  ESTABLISH THAT THE DEFENDANT WAS
APPRISED OF HIS CONSTITUTIONAL GUARANTEES OF SILENCE AND LEGAL COUNSEL
PRIOR TO THE UTTERING OF ANY ADMISSION OR CONFESSION, AND THAT HE
INTELLIGENTLY WAIVED THESE GUARANTEES  ...  A WHOLE PANDORA'S BOX IS
OPENED AS TO UNDER WHAT CIRCUMSTANCES  ...  CAN A DEFENDANT
INTELLIGENTLY WAIVE THESE RIGHTS  ...  .  ALLEGATIONS THAT MODERN
CRIMINAL INVESTIGATION CAN COMPENSATE FOR THE LACK OF A CONFESSION OR
ADMISSION IN EVERY CRIMINAL CASE IS TOTALLY ABSURD]"  PARKER, 40 L.A.
BAR BULL.  603, 607, 642 (1965).  HIS PROSECUTORIAL COUNTERPART,
DISTRICT ATTORNEY YOUNGER, STATED THAT "IT BEGINS TO APPEAR THAT MANY
OF THESE SEEMINGLY RESTRICTIVE DECISIONS ARE GOING TO CONTRIBUTE
DIRECTLY TO A MORE EFFECTIVE, EFFICIENT AND PROFESSIONAL LEVEL OF LAW
ENFORCEMENT."  L.A. TIMES, OCT. 2, 1965, P. 1.  THE FORMER POLICE
COMMISSIONER OF NEW YORK, MICHAEL J. MURPHY, STATED OF ESCOBEDO:  "WHAT
THE COURT IS DOING IS AKIN TO REQUIRING ONE BOXER TO FIGHT BY MARQUIS
OF QUEENSBURY RULES WHILE PERMITTING THE OTHER TO BUTT, GOUGE AND
BITE."  N.Y. TIMES, MAY 14, 1965, P. 39.  THE FORMER UNITED STATES
ATTORNEY FOR THE DISTRICT OF COLUMBIA, DAVID C. ACHESON, WHO IS
PRESENTLY SPECIAL ASSISTANT TO THE SECRETARY OF THE TREASURY (FOR
ENFORCEMENT), AND DIRECTLY IN CHARGE OF THE SECRET SERVICE AND THE
BUREAU OF NARCOTICS, OBSERVED THAT "PROSECUTION PROCEDURE HAS, AT MOST,
ONLY THE MOST REMOTE CASUAL CONNECTION WITH CRIME.  CHANGES IN COURT
DECISIONS AND PROSECUTION PROCEDURE WOULD HAVE ABOUT THE SAME EFFECT ON
THE CRIME RATE AS AN ASPIRIN WOULD HAVE ON A TUMOR OF THE BRAIN." 
QUOTED IN HERMAN, SUPRA, N. 2, AT 500, N. 270.  OTHER VIEWS ON THE
SUBJECT IN GENERAL ARE COLLECTED IN WEISBERG, POLICE INTERROGATION OF
ARRESTED PERSONS:  A SKEPTICAL VIEW, 52 J. CRIM. L., C.&P.S. 21
(1961). 

FN4  THIS IS WHAT WE MEANT IN ESCOBEDO WHEN WE SPOKE OF AN
INVESTIGATION WHICH HAD FOCUSED ON AN ACCUSED. 

FN5  SEE, FOR EXAMPLE, IV NATIONAL COMMISSION ON LAW OBSERVANCE AND
ENFORCEMENT, REPORT ON LAWLESSNESS IN LAW ENFORCEMENT (1931)(WICKERSHAM
REPORT); BOOTH, CONFESSIONS, AND METHODS EMPLOYED IN PROCURING THEM, 4
SO. CALIF. L. REV. 83 (1930); KAUPER, JUDICIAL EXAMINATION OF THE
ACCUSED - A REMEDY FOR THE THIRD DEGREE, 30 MICH. L. REV. 1224 (1932). 
IT IS SIGNIFICANT THAT INSTANCES OF THIRD-DEGREE TREATMENT OF PRISONERS
ALMOST INVARIABLY TOOK PLACE DURING THE PERIOD BETWEEN ARREST AND
PRELIMINARY EXAMINATION.  WICKERSHAM REPORT, AT 169; HALL, THE LAW OF
ARREST IN RELATION TO CONTEMPORARY SOCIAL PROBLEMS, 3 U. CHI.  L. REV.
345, 357 (1936).  SEE ALSO FOOTE, LAW AND POLICE PRACTICE:  SAFEGUARDS
IN THE LAW OF ARREST, 52 NW. U.L. REV. 16 (1957). 

FN6  BROWN V. MISSISSIPPI, 297 U.S. 278 (1936); CHAMBERS V. FLORIDA,
309 U.S. 227 (1940); CANTY V. ALABAMA, 309 U.S. 629 (1940); WHITE V.
TEXAS, 310 U.S. 530 (1940); VERNON V. ALABAMA, 313 U.S. 547 (1941);
WARD V. TEXAS, 316 U.S. 547 (1942); ASHCRAFT V. TENNESSEE, 322 U.S. 143
(1944); MALINSKI V. NEW YORK, 324 U.S. 401 (1945); LEYRA V. DENNO, 347
U.S. 556 (1954).  SEE ALSO WILLIAMS V. UNITED STATES, 341 U.S. 97
(1951). 

FN7  IN ADDITION, SEE PEOPLE V. WAKAT, 415 ILL. 610, 114 N.E.2D 706
(1953); WAKAT V. HARLIB, 253 F.2D 59 (C.A. 7TH CIR. 1958)(DEFENDANT
SUFFERING FROM BROKEN BONES, MULTIPLE BRUISES AND INJURIES SUFFICIENTLY
SERIOUS TO REQUIRE EIGHT MONTHS' MEDICAL TREATMENT AFTER BEING
MANHANDLED BY FIVE POLICEMEN); KIER V. STATE, 213 MD. 556, 132 A.2D 494
(1957)(POLICE DOCTOR TOLD ACCUSED, WHO WAS STRAPPED TO A CHAIR
COMPLETELY NUDE, THAT HE PROPOSED TO TAKE HAIR AND SKIN SCRAPINGS FROM
ANYTHING THAT LOOKED LIKE BLOOD OR SPERM FROM VARIOUS PARTS OF HIS
BODY); BRUNER V. PEOPLE, 113 COLO. 194, 156 P.2D 111 (1945)(DEFENDANT
HELD IN CUSTODY OVER TWO MONTHS, DEPRIVED OF FOOD FOR 15 HOURS, FORCED
TO SUBMIT TO A LIE DETECTOR TEST WHEN HE WANTED TO GO TO THE TOILET);
PEOPLE V. MATLOCK, 51 CAL. 2D 682, 336 P.2D 505 (1959) (DEFENDANT
QUESTIONED INCESSANTLY OVER AN EVENING'S TIME, MADE TO LIE ON COLD
BOARD AND TO ANSWER QUESTIONS WHENEVER IT APPEARED HE WAS GETTING
SLEEPY).  OTHER CASES ARE DOCUMENTED IN AMERICAN CIVIL LIBERTIES UNION,
ILLINOIS DIVISION, SECRET DETENTION BY THE CHICAGO POLICE (1959);
POTTS, THE PRELIMINARY EXAMINATION AND "THE THIRD DEGREE," 2 BAYLOR L.
REV.  131 (1950); STERLING, POLICE INTERROGATION AND THE PSYCHOLOGY OF
CONFESSION, 14 J. PUB. L. 25 (1965). 

FN8  THE MANUALS QUOTED IN THE TEXT FOLLOWING ARE THE MOST RECENT AND
REPRESENTATIVE OF THE TEXTS CURRENTLY AVAILABLE.  MATERIAL OF THE SAME
NATURE APPEARS IN KIDD, POLICE INTERROGATION (1940); MULBAR,
INTERROGATION (1951); DIENSTEIN, TECHNIQUES FOR THE CRIME INVESTIGATOR
97-115 (1952).  STUDIES CONCERNING THE OBSERVED PRACTICES OF THE POLICE
APPEAR IN LAFAVE, ARREST:  THE DECISION TO TAKE A SUSPECT INTO CUSTODY
244-437, 490-521 (1965); LAFAVE, DETENTION FOR INVESTIGATION BY THE
POLICE:  AN ANALYSIS OF CURRENT PRACTICES, 1962 WASH. U.L.Q. 331;
BARRETT, POLICE PRACTICES AND THE LAW - FROM ARREST TO RELEASE OR
CHARGE, 50 CALIF. L. REV. 11 (1962); STERLING, SUPRA, N.7, AT 47-65. 

FN9  THE METHODS DESCRIBED IN INBAU & REID, CRIMINAL INTERROGATION
AND CONFESSIONS (1962), ARE A REVISION AND ENLARGEMENT OF MATERIAL
PRESENTED IN THREE PRIOR EDITIONS OF A PREDECESSOR TEXT, LIE DETECTION
AND CRIMINAL INTERROGATION (3D ED. 1953).  THE AUTHORS AND THEIR
ASSOCIATES ARE OFFICERS OF THE CHICAGO POLICE SCIENTIFIC CRIME
DETECTION LABORATORY AND HAVE HAD EXTENSIVE EXPERIENCE IN WRITING,
LECTURING AND SPEAKING TO LAW ENFORCEMENT AUTHORITIES OVER A 20-YEAR
PERIOD.  THEY SAY THAT THE TECHNIQUES PORTRAYED IN THEIR MANUALS
REFLECT THEIR EXPERIENCES AND ARE THE MOST EFFECTIVE PSYCHOLOGICAL
STRATEGEMS TO EMPLOY DURING INTERROGATIONS.  SIMILARLY, THE TECHNIQUES
DESCRIBED ON O'HARA, FUNDAMENTALS OF CRIMINAL INVESTIGATION (1956),
WERE GLEANED FROM LONG SERVICE AS OBSERVER, LECTURER IN POLICE SCIENCE,
AND WORK AS A FEDERAL CRIMINAL INVESTIGATOR.  ALL THESE TEXTS HAVE HAD
RATHER EXTENSIVE USE AMONG LAW ENFORCEMENT AGENCIES AND AMONG STUDENTS
OF POLICE SCIENCE, WITH TOTAL SALES AND CIRCULATION OF OVER 44,000. 

FN10  INBAU & REID, CRIMINAL INTERROGATION AND CONFESSIONS (1962), AT
1. 

FN11 O'HARA, SUPRA, AT 99. 

FN12  INBAU & REID, SUPRA, AT 34-43, 87.  FOR EXAMPLE, IN LEYRA V.
DENNO, 347 U.S. 556 (1954), THE INTERROGATOR-PSYCHIATRIST TOLD THE
ACCUSED, "WE DO SOMETIMES THINGS THAT ARE NOT RIGHT, BUT IN A FIT OF
TEMPER OR ANGER WE SOMETIMES DO THINGS WE AREN'T REALLY RESPONSIBLE
FOR," ID., AT 562, AND AGAIN, "WE KNOW THAT MORALLY YOU WERE JUST IN
ANGER.  MORALLY, YOU ARE NOT TO BE CONDEMNED," ID., AT 582. 

FN13  INBAU & REID, SUPRA, AT 43-55. 

FN14  O'HARA, SUPRA, AT 112. 

FN15  INBAU & REID, SUPRA, AT 40. 

FN16  IBID. 

FN17  O'HARA, SUPRA, AT 104, INBAU & REID, SUPRA, AT 58-59.  SEE
SPANO V. NEW YORK, 360 U.S. 315 (1959).  A VARIANT ON THE TECHNIQUE OF
CREATING HOSTILITY IS ONE OF ENGENDERING FEAR.  THIS IS PERHAPS BEST
DESCRIBED BY THE PROSECUTING ATTORNEY IN MALINSKI V. NEW YORK, 324 U.S.
401, 407 (1945):  "WHY THIS TALK ABOUT BEING UNDRESSED?  OF COURSE,
THEY HAD A RIGHT TO UNDRESS HIM TO LOOK FOR BULLET SCARS, AND KEEP THE
CLOTHES OFF HIM.  THAT WAS QUITE PROPER POLICE PROCEDURE.  THAT IS SOME
MORE PSYCHOLOGY - LET HIM SIT AROUND WITH A BLANKET ON HIM, HUMILIATE
HIM THERE FOR A WHILE; LET HIM SIT IN THE CORNER, LET HIM THINK HE IS
GOING TO GET A SHELLACKING." 

FN18  O'HARA, SUPRA, AT 105-106. 

FN19  ID., AT 106. 

FN20  INBAU & REID, SUPRA, AT 111. 

FN21  IBID. 

FN22  INBAU & REID, SUPRA, AT 112. 

FN23  INBAU & REID, LIE DETECTION AND CRIMINAL INTERROGATION 185 (3D
ED. 1953). 

FN24  INTERROGATION PROCEDURES MAY EVEN GIVE RISE TO A FALSE
CONFESSION.  THE MOST RECENT CONSPICUOUS EXAMPLE OCCURRED IN NEW YORK,
IN 1964, WHEN A NEGRO OF LIMITED INTELLIGENCE CONFESSED TO TWO BRUTAL
MURDERS AND A RAPE WHICH HE HAD NOT COMMITTED.  WHEN THIS WAS
DISCOVERED, THE PROSECUTOR WAS REPORTED AS SAYING:  "CALL IT WHAT YOU
WANT - BRAIN-WASHING, HYPNOSIS, FRIGHT.  THEY MADE HIM GIVE AN UNTRUE
CONFESSION.  THE ONLY THING I DON'T BELIEVE IS THAT WHITMORE WAS
BEATEN."  N.Y. TIMES, JAN. 28, 1965, P. 1, COL. 5.  IN TWO OTHER
INSTANCES, SIMILAR EVENTS HAD OCCURRED.  N.Y. TIMES, OCT. 20, 1964, P.
22, COL. 1; N.Y. TIMES, AUG. 25, 1965, P. 1, COL. 1.  IN GENERAL, SEE
BORCHARD, CONVICTING THE INNOCENT (1932); FRANK & FRANK, NOT GUILTY
(1957).    FN25  IN THE FOURTH CONFESSION CASE DECIDED BY THE COURT IN
THE 1962 TERM, FAY V. NOIA, 372 U.S. 391 (1963), OUR DISPOSITION MADE
IT UNNECESSARY TO DELVE AT LENGTH INTO THE FACTS.  THE FACTS OF THE
DEFENDANT'S CASE THERE, HOWEVER, PARALLELED THOSE OF HIS CO-DEFENDANTS,
WHOSE CONFESSIONS WERE FOUND TO HAVE RESULTED FROM CONTINUOUS AND
COERCIVE INTERROGATION FOR 27 HOURS, WITH DENIAL OF REQUESTS FOR
FRIENDS OR ATTORNEY.  SEE UNITED STATES V. MURPHY, 222 F.2D 698 (C.A.2D
CIR. 1955)(FRANK, J.); PEOPLE V. BONINO, 1 N.Y.2D 752, 135 N.E.2D 51
(1956). 

FN26  THE ABSURDITY OF DENYING THAT A CONFESSION OBTAINED UNDER THESE
CIRCUMSTANCES IS COMPELLED IS APTLY PORTRAYED BY AN EXAMPLE IN
PROFESSOR SUTHERLAND'S RECENT ARTICLE, CRIME AND CONFESSION, 79 HARV.
L. REV. 21, 37 (1965): 

"SUPPOSE A WELL-TO-DO TESTATRIX SAYS SHE INTENDS TO WILL HER PROPERTY
TO ELIZABETH.  JOHN AND JAMES WANT HER TO BEQUEATH IT TO THEM INSTEAD. 
THEY CAPTURE THE TESTATRIX, PUT HER IN A CAREFULLY DESIGNED ROOM, OUT
OF TOUCH WITH EVERYONE BUT THEMSELVES AND THEIR CONVENIENT 'WITNESSES,'
KEEP HER SECLUDED THERE FOR HOURS WHILE THEY MAKE INSISTENT DEMANDS,
WEARY HER WITH CONTRADICTIONS OF HER ASSERTIONS THAT SHE WANTS TO LEAVE
HER MONEY TO ELIZABETH, AND FINALLY INDUCE HER TO EXECUTE THE WILL IN
THEIR FAVOR.  ASSUME THAT JOHN AND JAMES ARE DEEPLY AND CORRECTLY
CONVINCED THAT ELIZABETH IS UNWORTHY AND WILL MAKE BASE USE OF THE
PROPERTY IF SHE GETS HER HANDS ON IT, WHEREAS JOHN AND JAMES HAVE THE
NOBLEST AND MOST RIGHTEOUS INTENTIONS.  WOULD ANY JUDGE OF PROBATE
ACCEPT THE WILL SO PROCURED AS THE 'VOLUNTARY' ACT OF THE TESTATRIX?" 

FN27  THIRTEENTH CENTURY COMMENTATORS FOUND AN ANALOGUE TO THE
PRIVILEGE GROUNDED IN THE BIBLE.  "TO SUM UP THE MATTER, THE PRINCIPLE
THAT NO MAN IS TO BE DECLARED GUILTY ON HIS OWN ADMISSION IS A DIVINE
DECREE."  MAIMONIDES, MISHNEH TORAH (CODE OF JEWISH LAW), BOOK OF
JUDGES, LAWS OF THE SANHEDRIN, C. 18, PARA 6, III YALE JUDAICA SERIES
52-53.  SEE ALSO LAMM, THE FIFTH AMENDMENT AND ITS EQUIVALENT IN THE
HALAKHAH, 5 JUDAISM 53 (WINTER 1956). 

FN28  SEE MORGAN, THE PRIVILEGE AGAINST SELF-INCRIMINATION, 34 MINN.
L. REV. 1, 9-11 (1949); 8 WIGMORE, EVIDENCE 289-295 (MCNAUGHTON REV.
1961).  SEE ALSO LOWELL, THE JUDICIAL USE OF TORTURE, PARTS I AND II,
11 HARV. L. REV. 220, 290 (1897). 

FN29  SEE PITTMAN, THE COLONIAL AND CONSTITUTIONAL HISTORY OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION IN AMERICA, 21 VA. L. REV. 763
(1935); ULLMANN V. UNITED STATES, 350 U.S. 422, 445-449 (1956)(DOUGLAS,
J., DISSENTING). 

FN30  COMPARE BROWN V. WALKER, 161 U.S. 591 (1896); QUINN V. UNITED
STATES, 349 U.S. 155 (1955). 

FN31  BRIEF FOR THE UNITED STATES, P. 28.  TO THE SAME EFFECT, SEE
BRIEF FOR THE UNITED STATES, PP. 40-49, N.44, ANDERSON V. UNITED
STATES, 318 U.S. 350 (1943); BRIEF FOR THE UNITED STATES, PP. 17-18,
MCNABB V. UNITED STATES, 318 U.S. 332 (1943). 

FN32  OUR DECISION TODAY DOES NOT INDICATE IN ANY MANNER, OF COURSE,
THAT THESE RULES CAN BE DISREGARDED.  WHEN FEDERAL OFFICIALS ARREST AN
INDIVIDUAL, THEY MUST ALWAYS COMPLY WITH THE DICTATES OF THE
CONGRESSIONAL LEGISLATION AND CASES THEREUNDER.  SEE GENERALLY, HOGAN &
SNEE, THE MCNABB-MALLORY RULE:  ITS RISE, RATIONALE AND RESCUE, 47 GEO.
L.J. 1 (1958). 

FN33  THE DECISIONS OF THIS COURT HAVE GUARANTEED THE SAME PROCEDURAL
PROTECTION FOR THE DEFENDANT WHETHER HIS CONFESSION WAS USED IN A
FEDERAL OR STATE COURT.  IT IS NOW AXIOMATIC THAT THE DEFENDANT'S
CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED IF HIS CONVICTION IS BASED, IN
WHOLE OR IN PART, ON AN INVOLUNTARY CONFESSION, REGARDLESS OF ITS TRUTH
OR FALSITY.  ROGERS V. RICHMOND, 365 U.S. 534, 544 (1961); WAN V.
UNITED STATES, 266 U.S. 1 (1924).  THIS IS SO EVEN IF THERE IS AMPLE
EVIDENCE ASIDE FROM THE CONFESSION TO SUPPORT THE CONVICTION, E.G.,
MALINSKI V. NEW YORK, 324 U.S. 401, 404 (1945); BRAM V. UNITED STATES,
168 U.S. 532, 540-542 (1897).  BOTH STATE AND FEDERAL COURTS NOW ADHERE
TO TRIAL PROCEDURES WHICH SEEK TO ASSURE A RELIABLE AND CLEAR-CUT
DETERMINATION OF THE VOLUNTARINESS OF THE CONFESSION OFFERED AT TRIAL,
JACKSON V. DENNO, 378 U.S. 368 (1964); UNITED STATES V. CARIGNAN, 342
U.S. 36, 38 (1951); SEE ALSO WILSON V. UNITED STATES, 162 U.S. 613, 624
(1896).  APPELLATE REVIEW IS EXACTING, SEE HAYNES V. WASHINGTON, 373
U.S. 503 (1963); BLACKBURN V. ALABAMA, 361 U.S. 199 (1960).  WHETHER
HIS CONVICTION WAS IN A FEDERAL OR STATE COURT, THE DEFENDANT MAY
SECURE A POST-CONVICTION HEARING BASED ON THE ALLEGED INVOLUNTARY
CHARACTER OF HIS CONFESSION, PROVIDED HE MEETS THE PROCEDURAL
REQUIREMENTS, FAY V. NOIA, 372 U.S. 391 (1963); TOWNSEND V. SAIN, 372
U.S. 293 (1963).  IN ADDITION, SEE MURPHY V. WATERFRONT COMM'N, 378
U.S. 52 (1964). 

FN34  SEE LISENBA V. CALIFORNIA, 314 U.S. 219, 241 (1941); ASHCRAFT
V. TENNESSEE, 322 U.S. 143 (1944); MALINSKI V. NEW YORK, 324 U.S. 401
(1945); SPANO V. NEW YORK, 360 U.S. 315 (1959); LYNUMN V. ILLINOIS, 372
U.S. 528 (1963); HAYNES V. WASHINGTON, 373 U.S. 503 (1963). 

FN35  THE POLICE ALSO PREVENTED THE ATTORNEY FROM CONSULTING WITH HIS
CLIENT.  INDEPENDENT OF ANY OTHER CONSTITUTIONAL PROSCRIPTION, THIS
ACTION CONSTITUTES A VIOLATION OF THE SIXTH AMENDMENT RIGHT TO THE
ASSISTANCE OF COUNSEL AND EXCLUDES ANY STATEMENT OBTAINED IN ITS WAKE. 
SEE PEOPLE V. DONOVAN, 13 N.Y.2D 148, 193 N.E.2D 628, 243 N.Y.S.2D 841
(1963)(FULD, J.). 

FN36  IN RE GROBAN, 352 U.S. 330, 340-352 (1957)(BLACK, J.,
DISSENTING); NOTE, 73 YALE L.J. 1000, 1048-1051 (1964); COMMENT, 31 U.
CHI.  L. REV. 313, 320 (1964) AND AUTHORITIES CITED. 

FN37  SEE P. 454, SUPRA.  LORD DEVLIN HAS COMMENTED: 

"IT IS PROBABLE THAT EVEN TODAY, WHEN THERE IS MUCH LESS IGNORANCE
ABOUT THESE MATTERS THAN FORMERLY, THERE IS STILL A GENERAL BELIEF THAT
YOU MUST ANSWER ALL QUESTIONS PUT TO YOU BY A POLICEMAN, OR AT LEAST
THAT IT WILL BE THE WORSE FOR YOU IF YOU DO NOT."  DEVLIN, THE CRIMINAL
PROSECUTION IN ENGLAND 32 (1958). 

IN ACCORD WITH OUR DECISION TODAY, IT IS IMPERMISSIBLE TO PENALIZE AN
INDIVIDUAL FOR EXERCISING HIS FIFTH AMENDMENT PRIVILEGE WHEN HE IS
UNDER POLICE CUSTODIAL INTERROGATION.  THE PROSECUTION MAY NOT,
THEREFORE, USE AT TRIAL THE FACT THAT HE STOOD MUTE OR CLAIMED HIS
PRIVILEGE IN THE FACE OF ACCUSATION.  CF. GRIFFIN V. CALIFORNIA, 380
U.S. 609 (1965); MALLOY V. HOGAN, 378 U.S. 1, 8 (1964); COMMENT, 31 U.
CHI.  L. REV. 556 (1964); DEVELOPMENTS IN THE LAW - CONFESSIONS, 79
HARV. L. REV. 935, 1041-1044 (1966).  SEE ALSO BRAM V. UNITED STATES,
168 U.S. 532, 562 (1897). 

FN38  CF. BETTS V. BRADY, 316 U.S. 455 (1942), AND THE RECURRENT
INQUIRY INTO SPECIAL CIRCUMSTANCES IT NECESSITATED.  SEE GENERALLY,
KAMISAR, BETTS V. BRADY TWENTY YEARS LATER: THE RIGHT TO COUNSEL AND
DUE PROCESS VALUES, 61 MICH. L. REV. 219 (1962). 

FN39  SEE HERMAN, THE SUPREME COURT AND RESTRICTIONS ON POLICE
INTERROGATION, 25 OHIO ST. L.J. 449, 480 (1964). 

FN40  ESTIMATES OF 50-90% INDIGENCY AMONG FELONY DEFENDANTS HAVE BEEN
REPORTED.  POLLOCK, EQUAL JUSTICE IN PRACTICE, 45 MINN. L. REV. 737,
738-739 (1961); BIRZON, KASANOFF & FORMA, THE RIGHT TO COUNSEL AND THE
INDIGENT ACCUSED IN COURTS OF CRIMINAL JURISDICTION IN NEW YORK STATE,
14 BUFFALO L. REV. 428, 433 (1965). 

FN41  SEE KAMISAR, EQUAL JUSTICE IN THE GATEHOUSES AND MANSIONS OF
AMERICAN CRIMINAL PROCEDURE, IN CRIMINAL JUSTICE IN OUR TIME 1, 64-81
(1965).  AS WAS STATED IN THE REPORT OF THE ATTORNEY GENERAL'S
COMMITTEE ON POVERTY AND THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE
9 (1963): 

"WHEN GOVERNMENT CHOOSES TO EXERT ITS POWERS IN THE CRIMINAL AREA,
ITS OBLIGATION IS SURELY NO LESS THAN THAT OF TAKING REASONABLE
MEASURES TO ELIMINATE THOSE FACTORS THAT ARE IRRELEVANT TO JUST
ADMINISTRATION OF THE LAW BUT WHICH, NEVERTHELESS, MAY OCCASIONALLY
AFFECT DETERMINATIONS OF THE ACCUSED'S LIABILITY OR PENALTY.  WHILE
GOVERNMENT MAY NOT BE REQUIRED TO RELIEVE THE ACCUSED OF HIS POVERTY,
IT MAY PROPERLY BE REQUIRED TO MINIMIZE THE INFLUENCE OF POVERTY ON ITS
ADMINISTRATION OF JUSTICE." 

FN42  CF. UNITED STATES EX REL. BROWN V. FAY, 242 F. SUPP. 273, 277
(D.C.S.D.N.Y. 1965); PEOPLE V. WITENSKI, 15 N.Y.2D 392, 207 N.E.2D 358,
259 N.Y.S.2D 413 (1965). 

FN43  WHILE A WARNING THAT THE INDIGENT MAY HAVE COUNSEL APPOINTED
NEED NOT BE GIVEN TO THE PERSON WHO IS KNOWN TO HAVE AN ATTORNEY OR IS
KNOWN TO HAVE AMPLE FUNDS TO SECURE ONE, THE EXPEDIENT OF GIVING A
WARNING IS TOO SIMPLE AND THE RIGHTS INVOLVED TOO IMPORTANT TO ENGAGE
IN EX POST FACTO INQUIRIES INTO FINANCIAL ABILITY WHEN THERE IS ANY
DOUBT AT ALL ON THAT SCORE. 

FN44  IF AN INDIVIDUAL INDICATES HIS DESIRE TO REMAIN SILENT, BUT HAS
AN ATTORNEY PRESENT, THERE MAY BE SOME CIRCUMSTANCES IN WHICH FURTHER
QUESTIONING WOULD BE PERMISSIBLE.  IN THE ABSENCE OF EVIDENCE OF
OVERBEARING, STATEMENTS THEN MADE IN THE PRESENCE OF COUNSEL MIGHT BE
FREE OF THE COMPELLING INFLUENCE OF THE INTERROGATION PROCESS AND MIGHT
FAIRLY BE CONSTRUED AS A WAIVER OF THE PRIVILEGE FOR PURPOSES OF THESE
STATEMENTS. 

FN45  ALTHOUGH THIS COURT HELD IN ROGERS V. UNITED STATES, 340 U.S.
367 (1951), OVER STRONG DISSENT, THAT A WITNESS BEFORE A GRAND JURY MAY
NOT IN CERTAIN CIRCUMSTANCES DECIDE TO ANSWER SOME QUESTIONS AND THEN
REFUSE TO ANSWER OTHERS, THAT DECISION HAS NO APPLICATION TO THE
INTERROGATION SITUATION WE DEAL WITH TODAY.  NO LEGISLATIVE OR JUDICIAL
FACT-FINDING AUTHORITY IS INVOLVED HERE, NOR IS THERE A POSSIBILITY
THAT THE INDIVIDUAL MIGHT MAKE SELF-SERVING STATEMENTS OF WHICH HE
COULD MAKE USE AT TRIAL WHILE REFUSING TO ANSWER INCRIMINATING
STATEMENTS. 

FN46  THE DISTINCTION AND ITS SIGNIFICANCE HAS BEEN APTLY DESCRIBED
IN THE OPINION OF A SCOTTISH COURT: 

"IN FORMER TIMES SUCH QUESTIONING, IF UNDERTAKEN, WOULD BE CONDUCTED
BY POLICE OFFICERS VISITING THE HOUSE OR PLACE OF BUSINESS OF THE
SUSPECT AND THERE QUESTIONING HIM, PROBABLY IN THE PRESENCE OF A
RELATION OR FRIEND.  HOWEVER CONVENIENT THE MODERN PRACTICE MAY BE, IT
MUST NORMALLY CREATE A SITUATION VERY UNFAVOURABLE TO THE SUSPECT." 
CHALMERS V. H.M.  ADVOCATE, 1954 SESS. CAS. 66, 78 (J.C.). 

FN47  SEE PEOPLE V. DORADO, 62 CAL. 2D 338, 354, 398 P.2D 361, 371,
42 CAL. RPTR.  169, 179 (1965). 

FN48  IN ACCORDANCE WITH OUR HOLDINGS TODAY IN ESCOBEDO V. ILLINOIS,
378 U.S. 478, 492, CROOKER V. CALIFORNIA, 357 U.S. 433 (1958) AND
CICENIA V. LAGAY, 357 U.S. 504 (1958) ARE NOT TO BE FOLLOWED. 

FN49  IN QUOTING THE ABOVE FROM THE DISSENTING OPINION OF MR. JUSTICE
BRANDEIS WE, OF COURSE, DO NOT INTEND TO PASS ON THE CONSTITUTIONAL
QUESTIONS INVOLVED IN THE OLMSTEAD CASE. 

FN50  SCHAEFER, FEDERALISM AND STATE CRIMINAL PROCEDURE, 70 HARV. L.
REV. 1, 26 (1956). 

FN51  MIRANDA, VIGNERA, AND WESTOVER WERE IDENTIFIED BY
EYEWITNESSES.  MARKED BILLS FROM THE BANK ROBBED WERE FOUND IN
WESTOVER'S CAR.  ARTICLES STOLEN FROM THE VICTIM AS WELL AS FROM
SEVERAL OTHER ROBBERY VICTIMS WERE FOUND IN STEWART'S HOME AT THE
OUTSET OF THE INVESTIGATION. 

FN52  DEALING AS WE DO HERE WITH CONSTITUTIONAL STANDARDS IN RELATION
TO STATEMENTS MADE, THE EXISTENCE OF INDEPENDENT CORROBORATING EVIDENCE
PRODUCED AT TRIAL IS, OF COURSE, IRRELEVANT TO OUR DECISIONS.  HAYNES
V. WASHINGTON, 373 U.S. 503, 518-519 (1963); LYNUMN V. ILLINOIS, 372
U.S. 528, 537-538 (1963); ROGERS V. RICHMOND, 365 U.S. 534, 541 (1961);
BLACKBURN V. ALABAMA, 361 U.S. 199, 206 (1960). 

FN53  SEE, E.G., REPORT AND RECOMMENDATIONS OF THE DISTRICT OF
COLUMBIA COMMISSIONERS' COMMITTEE ON POLICE ARRESTS FOR INVESTIGATION
(1962); AMERICAN CIVIL LIBERTIES UNION, SECRET DETENTION BY THE CHICAGO
POLICE (1959).  AN EXTREME EXAMPLE OF THIS PRACTICE OCCURRED IN THE
DISTRICT OF COLUMBIA IN 1958.  SEEKING THREE "STOCKY" YOUNG NEGROES WHO
HAD ROBBED A RESTAURANT, POLICE ROUNDED UP 90 PERSONS OF THAT GENERAL
DESCRIPTION.  SIXTY-THREE WERE HELD OVERNIGHT BEFORE BEING RELEASED FOR
LACK OF EVIDENCE.  A MAN NOT AMONG THE 90 ARRESTED WAS ULTIMATELY
CHARGED WITH THE CRIME.  WASHINGTON DAILY NEWS, JANUARY 21, 1958, P. 5,
COL. 1; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE JUDICIARY
COMMITTEE ON H.R.  11477, S. 2970, S. 3325, AND S. 3355, 85TH CONG., 2D
SESS. (JULY 1958), PP. 40, 78. 

FN54  IN 1952, J. EDGAR HOOVER, DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION, STATED: 

"LAW ENFORCEMENT, HOWEVER, IN DEFEATING THE CRIMINAL, MUST MAINTAIN
INVIOLATE THE HISTORIC LIBERTIES OF THE INDIVIDUAL.  TO TURN BACK THE
CRIMINAL, YET, BY SO DOING, DESTROY THE DIGNITY OF THE INDIVIDUAL,
WOULD BE A HOLLOW VICTORY. 

     *         *         *         *        * 

"WE CAN HAVE THE CONSTITUTION, THE BEST LAWS IN THE LAND, AND THE
MOST HONEST REVIEWS BY COURTS - BUT UNLESS THE LAW ENFORCEMENT
PROFESSION IS STEEPED IN THE DEMOCRATIC TRADITION, MAINTAINS THE
HIGHEST IN ETHICS, AND MAKES ITS WORK A CAREER OF HONOR, CIVIL
LIBERTIES WILL CONTINUALLY - AND WITHOUT END - BE VIOLATED  ...  .  THE
BEST PROTECTION OF CIVIL LIBERTIES IS AN ALERT, INTELLIGENT AND HONEST
LAW ENFORCEMENT AGENCY.  THERE CAN BE NO ALTERNATIVE. 

     *         *         *     *         * 

"  ...  SPECIAL AGENTS ARE TAUGHT THAT ANY SUSPECT OR ARRESTED
PERSON, AT THE OUTSET OF AN INTERVIEW, MUST BE ADVISED THAT HE IS NOT
REQUIRED TO MAKE A STATEMENT AND THAT ANY STATEMENT GIVEN CAN BE USED
AGAINST HIM IN COURT.  MOREOVER, THE INDIVIDUAL MUST BE INFORMED THAT,
IF HE DESIRES, HE MAY OBTAIN THE SERVICES OF AN ATTORNEY OF HIS OWN
CHOICE."    HOOVER, CIVIL LIBERTIES AND LAW ENFORCEMENT:  THE ROLE OF
THE FBI, 37 IOWA L. REV. 175, 177-182 (1952). 

FN55  WE AGREE THAT THE INTERVIEWING AGENT MUST EXERCISE HIS JUDGMENT
IN DETERMINING WHETHER THE INDIVIDUAL WAIVES HIS RIGHT TO COUNSEL. 
BECAUSE OF THE CONSTITUTIONAL BASIS OF THE RIGHT, HOWEVER, THE STANDARD
FOR WAIVER IS NECESSARILY HIGH.  AND, OF COURSE, THE ULTIMATE
RESPONSIBILITY FOR RESOLVING THIS CONSTITUTIONAL QUESTION LIES WITH THE
COURTS. 

FN56  AMONG THE CRIMES WITHIN THE ENFORCEMENT JURISDICTION OF THE FBI
ARE KIDNAPPING, 18 U.S.C. SEC 1201 (1964 ED.), WHITE SLAVERY, 18 U.S.C.
SECS 2421-2423 (1964 ED.), BANK ROBBERY, 18 U.S.C. SEC 2113 (1964 ED.),
INTERSTATE TRANSPORTATION AND SALE OF STOLEN PROPERTY, 18 U.S.C. SECS
2311-2317 (1964 ED.), ALL MANNER OF CONSPIRACIES, 18 U.S.C. SEC 371
(1964 ED.), AND VIOLATIONS OF CIVIL RIGHTS, 18 U.S.C. SECS 241-242
(1964 ED.).  SEE ALSO 18 U.S.C. SEC 1114 (1964 ED.)(MURDER OF OFFICER
OR EMPLOYEE OF THE UNITED STATES). 

FN57  (1964) CRIM. L. REV., AT 166-170.  THESE RULES PROVIDE IN
PART: 

"II.  AS SOON AS A POLICE OFFICER HAS EVIDENCE WHICH WOULD AFFORD
REASONABLE GROUNDS FOR SUSPECTING THAT A PERSON HAS COMMITTED AN
OFFENSE, HE SHALL CAUTION THAT PERSON OR CAUSE HIM TO BE CAUTIONED
BEFORE PUTTING ON HIM ANY QUESTIONS, OR FURTHER QUESTIONS, RELATING TO
THAT OFFENSE. 

"THE CAUTION SHALL BE IN THE FOLLOWING TERMS: 

"'YOU ARE NOT OBLIGED TO SAY ANYTHING UNLESS YOU WISH TO DO SO BUT
WHAT YOU SAY MAY BE PUT INTO WRITING AND GIVEN IN EVIDENCE.' 

"WHEN AFTER BEING CAUTIONED A PERSON IS BEING QUESTIONED, OR ELECTS
TO MAKE A STATEMENT, A RECORD SHALL BE KEPT OF THE TIME AND PLACE AT
WHICH ANY SUCH QUESTIONING OR STATEMENT BEGAN AND ENDED AND OF THE
PERSONS PRESENT. 

  *         *         *         *         * 

"III  ...  . 

     *         *         *         *         * 

"(B)  IT IS ONLY IN EXCEPTIONAL CASES THAT QUESTIONS RELATING TO THE
OFFENSE SHOULD BE PUT TO THE ACCUSED PERSON AFTER HE HAS BEEN CHARGED
OR INFORMED THAT HE MAY BE PROSECUTED. 

     *      *         *         *         * 

"IV.  ALL WRITTEN STATEMENTS MADE AFTER CAUTION SHALL BE TAKEN IN THE
FOLLOWING MANNER: 

"(A)  IF A PERSON SAYS THAT HE WANTS TO MAKE A STATEMENT HE SHALL BE
TOLD THAT IT IS INTENDED TO MAKE A WRITTEN RECORD OF WHAT HE SAYS. 

"HE SHALL ALWAYS BE ASKED WHETHER HE WISHES TO WRITE DOWN HIMSELF
WHAT HE WANTS TO SAY; IF HE SAYS THAT HE CANNOT WRITE OR THAT HE WOULD
LIKE SOMEONE TO WRITE IT FOR HIM, A POLICE OFFICER MAY OFFER TO WRITE
THE STATEMENT FOR HIM  ...  . 

"(B)  ANY PERSON WRITING HIS OWN STATEMENT SHALL BE ALLOWED TO DO SO
WITHOUT ANY PROMPTING AS DISTINCT FROM INDICATING TO HIM WHAT MATTERS
ARE MATERIAL. 

     *         *      *         *         * 

"(D)  WHENEVER A POLICE OFFICER WRITES THE STATEMENT, HE SHALL TAKE
DOWN THE EXACT WORDS SPOKEN BY THE PERSON MAKING THE STATEMENT, WITHOUT
PUTTING ANY QUESTIONS OTHER THAN SUCH AS MAY BE NEEDED TO MAKE THE
STATEMENT COHERENT, INTELLIGIBLE AND RELEVANT TO THE MATERIAL MATTERS:
HE SHALL NOT PROMPT HIM." 

THE PRIOR RULES APPEAR IN DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND
137-141 (1958). 

DESPITE SUGGESTIONS OF SOME LAXITY IN ENFORCEMENT OF THE RULES AND
DESPITE THE FACT SOME DISCRETION AS TO ADMISSIBILITY IS INVESTED IN THE
TRIAL JUDGE, THE RULES ARE A SIGNIFICANT INFLUENCE IN THE ENGLISH
CRIMINAL LAW ENFORCEMENT SYSTEM.  SEE, E.G., (1964) CRIM. L. REV., AT
182; AND ARTICLES COLLECTED IN (1960) CRIM. L. REV., AT 298-356. 

FN58  THE INTRODUCTION TO THE JUDGES' RULES STATES IN PART: 

"THESE RULES DO NOT AFFECT THE PRINCIPLES: 

     *         *         *         *         * 

"(C)  THAT EVERY PERSON AT ANY STAGE OF AN INVESTIGATION SHOULD BE
ABLE TO COMMUNICATE AND TO CONSULT PRIVATELY WITH A SOLICITOR.  THIS IS
SO EVEN IF HE IS IN CUSTODY PROVIDED THAT IN SUCH A CASE NO
UNREASONABLE DELAY OR HINDRANCE IS CAUSED TO THE PROCESSES OF
INVESTIGATION OR THE ADMINISTRATION OF JUSTICE BY HIS DOING SO  ...
."  (1964) CRIM. L. REV., AT 166-167. 

FN59  AS STATED BY THE LORD JUSTICE GENERAL IN CHALMERS V. H.M.
ADVOCATE, (1954) SESS.  CAS. 66, 78 (J.C.): 

"THE THEORY OF OUR LAW IS THAT AT THE STAGE OF INITIAL INVESTIGATION
THE POLICE MAY QUESTION ANYONE WITH A VIEW TO ACQUIRING INFORMATION
WHICH MAY LEAD TO THE DETECTION OF THE CRIMINAL; BUT THAT, WHEN THE
STAGE HAS BEEN REACHED AT WHICH SUSPICION, OR MORE THAN SUSPICION, HAS
IN THEIR VIEW CENTRED UPON SOME PERSON AS THE LIKELY PERPETRATOR OF THE
CRIME, FURTHER INTERROGATION OF THAT PERSON BECOMES VERY DANGEROUS,
AND, IF CARRIED TOO FAR, E.G., TO THE POINT OF EXTRACTING A CONFESSION
BY WHAT AMOUNTS TO CROSS-EXAMINATION, THE EVIDENCE OF THAT CONFESSION
WILL ALMOST CERTAINLY BE EXCLUDED.  ONCE THE ACCUSED HAS BEEN
APPREHENDED AND CHARGED HE HAS THE STATUTORY RIGHT TO A PRIVATE
INTERVIEW WITH A SOLICITOR AND TO BE BROUGHT BEFORE A MAGISTRATE WITH
ALL CONVENIENT SPEED SO THAT HE MAY, IF SO ADVISED, EMIT A DECLARATION
IN PRESENCE OF HIS SOLICITOR UNDER CONDITIONS WHICH SAFEGUARD HIM
AGAINST PREJUDICE." 

FN60  "NO CONFESSION MADE TO A POLICE OFFICER SHALL BE PROVED AS
AGAINST A PERSON ACCUSED OF ANY OFFENSE."  INDIAN EVIDENCE ACT SEC 25. 

"NO CONFESSION MADE BY ANY PERSON WHILST HE IS IN THE CUSTODY OF A
POLICE OFFICER UNLESS IT BE MADE IN THE IMMEDIATE PRESENCE OF A
MAGISTRATE, SHALL BE PROVED AS AGAINST SUCH PERSON."  INDIAN EVIDENCE
ACT SEC 26.  SEE 1 RAMASWAMI & RAJAGOPALAN, LAW OF EVIDENCE IN INDIA
553-569 (1962).  TO AVOID ANY CONTINUING EFFECT OF POLICE PRESSURE OR
INDUCEMENT, THE INDIAN SUPREME COURT HAS INVALIDATED A CONFESSION MADE
SHORTLY AFTER POLICE BROUGHT A SUSPECT BEFORE A MAGISTRATE, SUGGESTING:
"IT WOULD, WE THINK, BE REASONABLE TO INSIST UPON GIVING AN ACCUSED
PERSON AT LEAST 24 HOURS TO DECIDE WHETHER OR NOT HE SHOULD MAKE A
CONFESSION."  SARWAN SINGH V. STATE OF PUNJAB, 44 ALL INDIAN REP. 1957,
SUP. CT. 637, 644. 

FN61  I LEGISLATIVE ENACTMENTS OF CEYLON 211 (1958). 

FN62  10 U.S.C. SEC 831(B) (1964 ED.). 

FN63  UNITED STATES V. ROSE, 24 CMR 251 (1957); UNITED STATES V.
GUNNELS, 23 CMR 354 (1957). 

FN64  ALTHOUGH NO CONSTITUTION EXISTED AT THE TIME CONFESSIONS WERE
EXCLUDED BY RULE OF EVIDENCE IN 1872, INDIA NOW HAS A WRITTEN
CONSTITUTION WHICH INCLUDES THE PROVISION THAT "NO PERSON ACCUSED OF
ANY OFFENCE SHALL BE COMPELLED TO BE A WITNESS AGAINST HIMSELF." 
CONSTITUTION OF INDIA, ARTICLE 20(3).  SEE TOPE, THE CONSTITUTION OF
INDIA, 63-67 (1960). 

FN65  BRIEF FOR UNITED STATES IN NO. 761, WESTOVER V. UNITED STATES,
PP. 44-47; BRIEF FOR THE STATE OF NEW YORK AS AMICUS CURIAE, PP. 35
39.  SEE ALSO BRIEF FOR THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION AS
AMICUS CURIAE, PP. 23-26. 

FN66  MIRANDA WAS ALSO CONVICTED IN A SEPARATE TRIAL ON AN UNRELATED
ROBBERY CHARGE NOT PRESENTED HERE FOR REVIEW.  A STATEMENT INTRODUCED
AT THAT TRIAL WAS OBTAINED FROM MIRANDA DURING THE SAME INTERROGATION
WHICH RESULTED IN THE CONFESSION INVOLVED HERE.  AT THE ROBBERY TRIAL,
ONE OFFICER TESTIFIED THAT DURING THE INTERROGATION HE DID NOT TELL
MIRANDA THAT ANYTHING HE SAID WOULD BE HELD AGAINST HIM OR THAT HE
COULD CONSULT WITH AN ATTORNEY.  THE OTHER OFFICER STATED THAT THEY HAD
BOTH TOLD MIRANDA THAT ANYTHING HE SAID WOULD BE USED AGAINST HIM AND
THAT HE WAS NOT REQUIRED BY LAW TO TELL THEM ANYTHING. 

FN67  ONE OF THE OFFICERS TESTIFIED THAT HE READ THIS PARAGRAPH TO
MIRANDA.  APPARENTLY, HOWEVER, HE DID NOT DO SO UNTIL AFTER MIRANDA HAD
CONFESSED ORALLY. 

FN68  VIGNERA THEREAFTER SUCCESSFULLY ATTACKED THE VALIDITY OF ONE OF
THE PRIOR CONVICTIONS, VIGNERA V. WILKINS, CIV. 9901 (D.C.W.D.N.Y. DEC.
31, 1961)(UNREPORTED), BUT WAS THEN RESENTENCED AS A SECOND-FELONY
OFFENDER TO THE SAME TERM OF IMPRISONMENT AS THE ORIGINAL SENTENCE.  R.
31-33. 

FN69  THE FAILURE OF DEFENSE COUNSEL TO OBJECT TO THE INTRODUCTION OF
THE CONFESSION AT TRIAL, NOTED BY THE COURT OF APPEALS AND EMPHASIZED
BY THE SOLICITOR GENERAL, DOES NOT PRECLUDE OUR CONSIDERATION OF THE
ISSUE.  SINCE THE TRIAL WAS HELD PRIOR TO OUR DECISION IN ESCOBEDO AND,
OF COURSE, PRIOR TO OUR DECISION TODAY MAKING THE OBJECTION AVAILABLE,
THE FAILURE TO OBJECT AT TRIAL DOES NOT CONSTITUTE A WAIVER OF THE
CLAIM.  SEE, E.G., UNITED STATES EX REL. ANGELET V. FAY, 333 F.2D 12,
16 (C.A.2D CIR. 1964), AFF'D, 381 U.S. 654 (1965).  CF. ZIFFRIN, INC.
V. UNITED STATES, 318 U.S. 73, 78 (1943). 

FN70  BECAUSE OF THIS DISPOSITION OF THE CASE, THE CALIFORNIA SUPREME
COURT DID NOT REACH THE CLAIMS THAT THE CONFESSION WAS COERCED BY
POLICE THREATS TO HOLD HIS AILING WIFE IN CUSTODY UNTIL HE CONFESSED,
THAT THERE WAS NO HEARING AS REQUIRED BY JACKSON V. DENNO, 378 U.S. 368
(1964), AND THAT THE TRIAL JUDGE GAVE AN INSTRUCTION CONDEMNED BY THE
CALIFORNIA SUPREME COURT'S DECISION IN PEOPLE V. MORSE, 60 CAL. 2D 631,
338 P.2D 33, 36 CAL. RPTR.  201 (1964). 

FN71  AFTER CERTIORARI WAS GRANTED IN THIS CASE, RESPONDENT MOVED TO
DISMISS ON THE GROUND THAT THERE WAS NO FINAL JUDGMENT FROM WHICH THE
STATE COULD APPEAL SINCE THE JUDGMENT BELOW DIRECTED THAT HE BE
RETRIED.  IN THE EVENT RESPONDENT WAS SUCCESSFUL IN OBTAINING AN
ACQUITTAL ON RETRIAL, HOWEVER, UNDER CALIFORNIA LAW THE STATE WOULD
HAVE NO APPEAL.  SATISFIED THAT IN THESE CIRCUMSTANCES THE DECISION
BELOW CONSTITUTED A FINAL JUDGMENT UNDER 28 U.S.C. SEC 1257(3) (1964
ED.), WE DENIED THE MOTION.  383 U.S. 903. 

MR. JUSTICE CLARK, DISSENTING IN NOS. 759, 760, AND 761, AND
CONCURRING IN THE RESULT IN NO. 584. 

IT IS WITH REGRET THAT I FIND IT NECESSARY TO WRITE IN THESE CASES. 
HOWEVER, I AM UNABLE TO JOIN THE MAJORITY BECAUSE ITS OPINION GOES TOO
FAR ON TOO LITTLE, WHILE MY DISSENTING BRETHREN DO NOT GO QUITE FAR
ENOUGH.  NOR CAN I JOIN IN THE COURT'S CRITICISM OF THE PRESENT
PRACTICES OF POLICE AND INVESTIGATORY AGENCIES AS TO CUSTODIAL
INTERROGATION.  THE MATERIALS IT REFERS TO AS "POLICE MANUALS"  (FN1)
ARE, AS I READ THEM, MERELY WRITINGS IN THIS FIELD BY PROFESSORS AND
SOME POLICE OFFICERS.  NOT ONE IS SHOWN BY THE RECORD HERE TO BE THE
OFFICIAL MANUAL OF ANY POLICE DEPARTMENT, MUCH LESS IN UNIVERSAL USE IN
CRIME DETECTION.  MOREOVER, THE EXAMPLES OF POLICE BRUTALITY MENTIONED
BY THE COURT  (FN2) ARE RARE EXCEPTIONS TO THE THOUSANDS OF CASES THAT
APPEAR EVERY YEAR IN THE LAW REPORTS.  THE POLICE AGENCIES - ALL THE
WAY FROM MUNICIPAL AND STATE FORCES TO THE FEDERAL BUREAUS - ARE
RESPONSIBLE FOR LAW ENFORCEMENT AND PUBLIC SAFETY IN THIS COUNTRY.  I
AM PROUD OF THEIR EFFORTS, WHICH IN MY VIEW ARE NOT FAIRLY
CHARACTERIZED BY THE COURT'S OPINION. 

                                 I. 

THE IPSE DIXIT OF THE MAJORITY HAS NO SUPPORT IN OUR CASES.  INDEED,
THE COURT ADMITS THAT "WE MIGHT NOT FIND THE DEFENDANTS' STATEMENTS
HERE TO HAVE BEEN INVOLUNTARY IN TRADITIONAL TERMS."  ANTE, P. 457.  IN
SHORT, THE COURT HAS ADDED MORE TO THE REQUIREMENTS THAT THE ACCUSED IS
ENTITLED TO CONSULT WITH HIS LAWYER AND THAT HE MUST BE GIVEN THE
TRADITIONAL WARNING THAT HE MAY REMAIN SILENT AND THAT ANYTHING THAT HE
SAYS MAY BE USED AGAINST HIM.  ESCOBEDO V. ILLINOIS, 378 U.S. 478, 490
491 (1964).  NOW, THE COURT FASHIONS A CONSTITUTIONAL RULE THAT THE
POLICE MAY ENGAGE IN NO CUSTODIAL INTERROGATION WITHOUT ADDITIONALLY
ADVISING THE ACCUSED THAT HE HAS A RIGHT UNDER THE FIFTH AMENDMENT TO
THE PRESENCE OF COUNSEL DURING INTERROGATION AND THAT, IF HE IS WITHOUT
FUNDS, COUNSEL WILL BE FURNISHED HIM.  WHEN AT ANY POINT DURING AN
INTERROGATION THE ACCUSED SEEKS AFFIRMATIVELY OR IMPLIEDLY TO INVOKE
HIS RIGHTS TO SILENCE OR COUNSEL, INTERROGATION MUST BE FORGONE OR
POSTPONED.  THE COURT FURTHER HOLDS THAT FAILURE TO FOLLOW THE NEW
PROCEDURES REQUIRES INEXORABLY THE EXCLUSION OF ANY STATEMENT BY THE
ACCUSED, AS WELL AS THE FRUITS THEREOF.  SUCH A STRICT CONSTITUTIONAL
SPECIFIC INSERTED AT THE NERVE CENTER OF CRIME DETECTION MAY WELL KILL
THE PATIENT.  (FN3)  SINCE THERE IS AT THIS TIME A PAUCITY OF
INFORMATION AND AN ALMOST TOTAL LACK OF EMPIRICAL KNOWLEDGE ON THE
PRACTICAL OPERATION OF REQUIREMENTS TRULY COMPARABLE TO THOSE ANNOUNCED
BY THE MAJORITY, I WOULD BE MORE RESTRAINED LEST WE GO TOO FAR TOO
FAST. 

                                 II. 

CUSTODIAL INTERROGATION HAS LONG BEEN RECOGNIZED AS "UNDOUBTEDLY AN
ESSENTIAL TOOL IN EFFECTIVE LAW ENFORCEMENT."  HAYNES V. WASHINGTON,
373 U.S. 503, 515 (1963).  RECOGNITION OF THIS FACT SHOULD PUT US ON
GUARD AGAINST THE PROMULGATION OF DOCTRINAIRE RULES.  ESPECIALLY IS
THIS TRUE WHERE THE COURT FINDS THAT "THE CONSTITUTION HAS PRESCRIBED"
ITS HOLDINGS AND WHERE THE LIGHT OF OUR PAST CASES, FROM HOPT V. UTAH,
110 U.S. 574, (1884), DOWN TO HAYNES V. WASHINGTON, SUPRA, IS TO THE
CONTRARY.  INDEED, EVEN IN ESCOBEDO THE COURT NEVER HINTED THAT AN
AFFIRMATIVE "WAIVER" WAS A PREREQUISITE TO QUESTIONING; THAT THE BURDEN
OF PROOF AS TO WAIVER WAS ON THE PROSECUTION; THAT THE PRESENCE OF
COUNSEL - ABSENT A WAIVER - DURING INTERROGATION WAS REQUIRED; THAT A
WAIVER CAN BE WITHDRAWN AT THE WILL OF THE ACCUSED; THAT COUNSEL MUST
BE FURNISHED DURING AN ACCUSATORY STAGE TO THOSE UNABLE TO PAY; NOR
THAT ADMISSIONS AND EXCULPATORY STATEMENTS ARE "CONFESSIONS."  TO
REQUIRE ALL THOSE THINGS AT ONE GULP SHOULD CAUSE THE COURT TO CHOKE
OVER MORE CASES THAN CROOKER V. CALIFORNIA, 357 U.S. 433 (1958), AND
CICENIA V. LAGAY, 357 U.S. 504 (1958), WHICH IT EXPRESSLY OVERRULES
TODAY. 

THE RULE PRIOR TO TODAY - AS MR. JUSTICE GOLDBERG, THE AUTHOR OF THE
COURT'S OPINION IN ESCOBEDO, STATED IT IN HAYNES V. WASHINGTON -
DEPENDED UPON "A TOTALITY OF CIRCUMSTANCES EVIDENCING AN INVOLUNTARY
...  ADMISSION OF GUILT."  373 U.S., AT 514.  AND HE CONCLUDED:    "OF
COURSE, DETECTION AND SOLUTION OF CRIME IS, AT BEST, A DIFFICULT AND
ARDUOUS TASK REQUIRING DETERMINATION AND PERSISTENCE ON THE PART OF ALL
RESPONSIBLE OFFICERS CHARGED WITH THE DUTY OF LAW ENFORCEMENT.  AND,
CERTAINLY, WE DO NOT MEAN TO SUGGEST THAT ALL INTERROGATION OF
WITNESSES AND SUSPECTS IS IMPERMISSIBLE.  SUCH QUESTIONING IS
UNDOUBTEDLY AN ESSENTIAL TOOL IN EFFECTIVE LAW ENFORCEMENT.  THE LINE
BETWEEN PROPER AND PERMISSIBLE POLICE CONDUCT AND TECHNIQUES AND
METHODS OFFENSIVE TO DUE PROCESS IS, AT BEST, A DIFFICULT ONE TO DRAW,
PARTICULARLY IN CASES SUCH AS THIS WHERE IT IS NECESSARY TO MAKE FINE
JUDGMENTS AS TO THE EFFECT OF PSYCHOLOGICALLY COERCIVE PRESSURES AND
INDUCEMENTS ON THE MIND AND WILL OF AN ACCUSED  ...  .  WE ARE HERE
IMPELLED TO THE CONCLUSION, FROM ALL OF THE FACTS PRESENTED, THAT THE
BOUNDS OF DUE PROCESS HAVE BEEN EXCEEDED."  ID., AT 514-515. 

                                       III. 

I WOULD CONTINUE TO FOLLOW THAT RULE.  UNDER THE "TOTALITY OF
CIRCUMSTANCES" RULE OF WHICH MY BROTHER GOLDBERG SPOKE IN HAYNES, I
WOULD CONSIDER IN EACH CASE WHETHER THE POLICE OFFICER PRIOR TO
CUSTODIAL INTERROGATION ADDED THE WARNING THAT THE SUSPECT MIGHT HAVE
COUNSEL PRESENT AT THE INTERROGATION AND, FURTHER, THAT A COURT WOULD
APPOINT ONE AT HIS REQUEST IF HE WAS TOO POOR TO EMPLOY COUNSEL.  IN
THE ABSENCE OF WARNINGS, THE BURDEN WOULD BE ON THE STATE TO PROVE THAT
COUNSEL WAS KNOWINGLY AND INTELLIGENTLY WAIVED OR THAT IN THE TOTALITY
OF THE CIRCUMSTANCES, INCLUDING THE FAILURE TO GIVE THE NECESSARY
WARNINGS, THE CONFESSION WAS CLEARLY VOLUNTARY. 

RATHER THAN EMPLOYING THE ARBITRARY FIFTH AMENDMENT RULE  (FN4) WHICH
THE COURT LAYS DOWN I WOULD FOLLOW THE MORE PLIABLE DICTATES OF THE DUE
PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS WHICH WE ARE
ACCUSTOMED TO ADMINISTERING AND WHICH WE KNOW FROM OUR CASES ARE
EFFECTIVE INSTRUMENTS IN PROTECTING PERSONS IN POLICE CUSTODY.  IN THIS
WAY WE WOULD NOT BE ACTING IN THE DARK NOR IN ONE FULL SWEEP CHANGING
THE TRADITIONAL RULES OF CUSTODIAL INTERROGATION WHICH THIS COURT HAS
FOR SO LONG RECOGNIZED AS A JUSTIFIABLE AND PROPER TOOL IN BALANCING
INDIVIDUAL RIGHTS AGAINST THE RIGHTS OF SOCIETY.  IT WILL BE SOON
ENOUGH TO GO FURTHER WHEN WE ARE ABLE TO APPRAISE WITH SOMEWHAT BETTER
ACCURACY THE EFFECT OF SUCH A HOLDING. 

I WOULD AFFIRM THE CONVICTIONS IN MIRANDA V. ARIZONA, NO. 759;
VIGNERA V. NEW YORK, NO. 760; AND WESTOVER V. UNITED STATES, NO. 761. 
IN EACH OF THOSE CASES I FIND FROM THE CIRCUMSTANCES NO WARRANT FOR
REVERSAL.  IN CALIFORNIA V. STEWART, NO. 584, I WOULD DISMISS THE WRIT
OF CERTIORARI FOR WANT OF A FINAL JUDGMENT, 28 U.S.C. SEC. 1257(3)
(1964 ED.); BUT IF THE MERITS ARE TO BE REACHED I WOULD AFFIRM ON THE
GROUND THAT THE STATE FAILED TO FULFILL ITS BURDEN, IN THE ABSENCE OF A
SHOWING THAT APPROPRIATE WARNINGS WERE GIVEN, OF PROVING A WAIVER OR A
TOTALITY OF CIRCUMSTANCES SHOWING VOLUNTARINESS.  SHOULD THERE BE A
RETRIAL, I WOULD LEAVE THE STATE FREE TO ATTEMPT TO PROVE THESE
ELEMENTS. 

FN1  E.G., INBAU & REID, CRIMINAL INTERROGATION AND CONFESSIONS
(1962); O'HARA, FUNDAMENTALS OF CRIMINAL INVESTIGATION (1956);
DIENSTEIN, TECHNICS FOR THE CRIME INVESTIGATOR (1952); MULBAR,
INTERROGATION (1951); KIDD, POLICE INTERROGATION (1940). 

FN2  AS DEVELOPED BY MY BROTHER HARLAN, POST.  PP. 506-514, SUCH
CASES, WITH THE EXCEPTION OF THE LONG-DISCREDITED DECISION IN BRAM V.
UNITED STATES, 168 U.S. 532 (1897), WERE ADEQUATELY TREATED IN TERMS OF
DUE PROCESS. 

FN3  THE COURT POINTS TO ENGLAND, SCOTLAND, CEYLON AND INDIA AS
HAVING EQUALLY RIGID RULES.  AS MY BROTHER HARLAN POINTS OUT, POST, PP.
521-523, THE COURT IS MISTAKEN IN THIS REGARD, FOR IT OVERLOOKS
COUNTERBALANCING PROSECUTORIAL ADVANTAGES.  MOREOVER, THE REQUIREMENTS
OF THE FEDERAL BUREAU OF INVESTIGATION DO NOT APPEAR FROM THE SOLICITOR
GENERAL'S LETTER, ANTE, PP. 484-486, TO BE AS STRICT AS THOSE IMPOSED
TODAY IN AT LEAST TWO RESPECTS:  (1) THE OFFER OF COUNSEL IS
ARTICULATED ONLY AS "A RIGHT TO COUNSEL"; NOTHING IS SAID ABOUT A RIGHT
TO HAVE COUNSEL PRESENT AT THE CUSTODIAL INTERROGATION.  (SEE ALSO
EXAMPLES CITED BY THE SOLICITOR GENERAL, WESTOVER V. UNITED STATES, 342
F.2D 684, 685 (1965)("RIGHT TO CONSULT COUNSEL"); JACKSON V. UNITED
STATES, 337 F.2D 136, 138 (1964)(ACCUSED "ENTITLED TO AN ATTORNEY").) 
INDEED, THE PRACTICE IS THAT WHENEVER THE SUSPECT "DECIDES THAT HE
WISHES TO CONSULT WITH COUNSEL BEFORE MAKING A STATEMENT, THE INTERVIEW
IS TERMINATED AT THAT POINT  ...  .  WHEN COUNSEL APPEARS IN PERSON, HE
IS PERMITTED TO CONFER WITH HIS CLIENT IN PRIVATE."  THIS CLEARLY
INDICATES THAT THE FBI DOES NOT WARN THAT COUNSEL MAY BE PRESENT DURING
CUSTODIAL INTERROGATION.  (2) THE SOLICITOR GENERAL'S LETTER STATES:
"THOSE WHO HAVE BEEN ARRESTED FOR AN OFFENSE UNDER FBI JURISDICTION, OR
WHOSE ARREST IS CONTEMPLATED FOLLOWING THE INTERVIEW, ARE ADVISED OF A
RIGHT TO FREE COUNSEL IF THEY ARE UNABLE TO PAY, AND THE AVAILABILITY
OF SUCH COUNSEL FROM THE JUDGE."  SO PHRASED, THIS WARNING DOES NOT
INDICATE THAT THE AGENT WILL SECURE COUNSEL.  RATHER, THE STATEMENT MAY
WELL BE INTERPRETED BY THE SUSPECT TO MEAN THAT THE BURDEN IS PLACED
UPON HIMSELF AND THAT HE MAY HAVE COUNSEL APPOINTED ONLY WHEN BROUGHT
BEFORE THE JUDGE OR AT TRIAL - BUT NOT AT CUSTODIAL INTERROGATION.  AS
I VIEW THE FBI PRACTICE, IT IS NOT AS BROAD AS THE ONE LAID DOWN TODAY
BY THE COURT. 

FN4  IN MY VIEW THERE IS "NO SIGNIFICANT SUPPORT" IN OUR CASES FOR
THE HOLDING OF THE COURT TODAY THAT THE FIFTH AMENDMENT PRIVILEGE, IN
EFFECT, FORBIDS CUSTODIAL INTERROGATION.  FOR A DISCUSSION OF THIS
POINT SEE THE DISSENTING OPINION OF MY BROTHER WHITE, POST, PP.  526
531. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

I BELIEVE THE DECISION OF THE COURT REPRESENTS POOR CONSTITUTIONAL
LAW AND ENTAILS HARMFUL CONSEQUENCES FOR THE COUNTRY AT LARGE.  HOW
SERIOUS THESE CONSEQUENCES MAY PROVE TO BE ONLY TIME CAN TELL.  BUT THE
BASIC FLAWS IN THE COURT'S JUSTIFICATION SEEM TO ME READILY APPARENT
NOW ONCE ALL SIDES OF THE PROBLEM ARE CONSIDERED. 

                  I. INTRODUCTION. 

AT THE OUTSET, IT IS WELL TO NOTE EXACTLY WHAT IS REQUIRED BY THE
COURT'S NEW CONSTITUTIONAL CODE OF RULES FOR CONFESSIONS.  THE FOREMOST
REQUIREMENT, UPON WHICH LATER ADMISSIBILITY OF A CONFESSION DEPENDS, IS
THAT A FOURFOLD WARNING BE GIVEN TO A PERSON IN CUSTODY BEFORE HE IS
QUESTIONED, NAMELY, THAT HE HAS A RIGHT TO REMAIN SILENT, THAT ANYTHING
HE SAYS MAY BE USED AGAINST HIM, THAT HE HAS A RIGHT TO HAVE PRESENT AN
ATTORNEY DURING THE QUESTIONING, AND THAT IF INDIGENT HE HAS A RIGHT TO
A LAWYER WITHOUT CHARGE.  TO FORGO THESE RIGHTS, SOME AFFIRMATIVE
STATEMENT OF REJECTION IS SEEMINGLY REQUIRED, AND THREATS, TRICKS, OR
CAJOLINGS TO OBTAIN THIS WAIVER ARE FORBIDDEN.  IF BEFORE OR DURING
QUESTIONING THE SUSPECT SEEKS TO INVOKE HIS RIGHT TO REMAIN SILENT,
INTERROGATION MUST BE FORGONE OR CEASE, A REQUEST FOR COUNSEL BRINGS
ABOUT THE SAME RESULT UNTIL A LAWYER IS PROCURED.  FINALLY, THERE ARE A
MISCELLANY OF MINOR DIRECTIVES, FOR EXAMPLE, THE BURDEN OF PROOF OF
WAIVER IS ON THE STATE, ADMISSIONS AND EXCULPATORY STATEMENTS ARE
TREATED JUST LIKE CONFESSIONS, WITHDRAWAL OF A WAIVER IS ALWAYS
PERMITTED, AND SO FORTH.  (FN1) 

WHILE THE FINE POINTS OF THIS SCHEME ARE FAR LESS CLEAR THAN THE
COURT ADMITS, THE TENOR IS QUITE APPARENT.  THE NEW RULES ARE NOT
DESIGNED TO GUARD AGAINST POLICE BRUTALITY OR OTHER UNMISTAKABLY BANNED
FORMS OF COERCION.  THOSE WHO USE THIRD-DEGREE TACTICS AND DENY THEM IN
COURT ARE EQUALLY ABLE AND DESTINED TO LIE AS SKILLFULLY ABOUT WARNINGS
AND WAIVERS.  RATHER, THE THRUST OF THE NEW RULES IS TO NEGATE ALL
PRESSURES, TO REINFORCE THE NERVOUS OR IGNORANT SUSPECT, AND ULTIMATELY
TO DISCOURAGE ANY CONFESSION AT ALL.  THE AIM IN SHORT IS TOWARD
"VOLUNTARINESS" IN A UTOPIAN SENSE, OR TO VIEW IT FROM A DIFFERENT
ANGLE, VOLUNTARINESS WITH A VENGEANCE. 

TO INCORPORATE THIS NOTION INTO THE CONSTITUTION REQUIRES A STRAINED
READING OF HISTORY AND PRECEDENT AND A DISREGARD OF THE VERY PRAGMATIC
CONCERNS THAT ALONE MAY ON OCCASION JUSTIFY SUCH STRAINS.  I BELIEVE
THAT REASONED EXAMINATION WILL SHOW THAT THE DUE PROCESS CLAUSES
PROVIDE AN ADEQUATE TOOL FOR COPING WITH CONFESSIONS AND THAT, EVEN IF
THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION BE INVOKED,
ITS PRECEDENTS TAKEN AS A WHOLE DO NOT SUSTAIN THE PRESENT RULES. 
VIEWED AS A CHOICE BASED ON PURE POLICY, THESE NEW RULES PROVE TO BE A
HIGHLY DEBATABLE, IF NOT ONE-SIDED, APPRAISAL OF THE COMPETING
INTERESTS, IMPOSED OVER WIDESPREAD OBJECTION, AT THE VERY TIME WHEN
JUDICIAL RESTRAINT IS MOST CALLED FOR BY THE CIRCUMSTANCES. 

                  II.  CONSTITUTIONAL PREMISES. 

IT IS MOST FITTING TO BEGIN AN INQUIRY INTO THE CONSTITUTIONAL
PRECEDENTS BY SURVEYING THE LIMITS ON CONFESSIONS THE COURT HAS EVOLVED
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THIS IS SO
BECAUSE THESE CASES SHOW THAT THERE EXISTS A WORKABLE AND EFFECTIVE
MEANS OF DEALING WITH CONFESSIONS IN A JUDICIAL MANNER; BECAUSE THE
CASES ARE THE BASELINE FROM WHICH THE COURT NOW DEPARTS AND SO SERVE TO
MEASURE THE ACTUAL AS OPPOSED TO THE PROFESSED DISTANCE IT TRAVELS; AND
BECAUSE EXAMINATION OF THEM HELPS REVEAL HOW THE COURT HAS COASTED INTO
ITS PRESENT POSITION. 

THE EARLIEST CONFESSION CASES IN THIS COURT EMERGED FROM FEDERAL
PROSECUTIONS AND WERE SETTLED ON A NONCONSTITUTIONAL BASIS, THE COURT
ADOPTING THE COMMON-LAW RULE THAT THE ABSENCE OF INDUCEMENTS, PROMISES,
AND THREATS MADE A CONFESSION VOLUNTARY AND ADMISSIBLE.  HOPT V. UTAH,
110 U.S. 574; PIERCE V. UNITED STATES, 160 U.S. 355.  WHILE A LATER
CASE SAID THE FIFTH AMENDMENT PRIVILEGE CONTROLLED ADMISSIBILITY, THIS
PROPOSITION WAS NOT ITSELF DEVELOPED IN SUBSEQUENT DECISIONS.  (FN2)
THE COURT DID, HOWEVER, HEIGHTEN THE TEST OF ADMISSIBILITY IN FEDERAL
TRIALS TO ONE OF VOLUNTARINESS "IN FACT," WAN V. UNITED STATES, 266
U.S. 1, 14 (QUOTED, ANTE, P. 462), AND THEN BY AND LARGE LEFT FEDERAL
JUDGES TO APPLY THE SAME STANDARDS THE COURT BEGAN TO DERIVE IN A
STRING OF STATE COURT CASES. 

THIS NEW LINE OF DECISIONS, TESTING ADMISSIBILITY BY THE DUE PROCESS
CLAUSE, BEGAN IN 1936 WITH BROWN V. MISSISSIPPI, 297 U.S. 278, AND MUST
NOW EMBRACE SOMEWHAT MORE THAN 30 FULL OPINIONS OF THE COURT.  (FN3)
WHILE THE VOLUNTARINESS RUBRIC WAS REPEATED IN MANY INSTANCES, E.G.,
LYONS V. OKLAHOMA, 322 U.S. 596, THE COURT NEVER PINNED IT DOWN TO A
SINGLE MEANING BUT ON THE CONTRARY INFUSED IT WITH A NUMBER OF
DIFFERENT VALUES.  TO TRAVEL QUICKLY OVER THE MAIN THEMES, THERE WAS AN
INITIAL EMPHASIS ON RELIABILITY, E.G., WARD V. TEXAS, 316 U.S. 547,
SUPPLEMENTED BY CONCERN OVER THE LEGALITY AND FAIRNESS OF THE POLICE
PRACTICES, E.G., ASHCRAFT V. TENNESSEE, 322 U.S. 143, IN AN
"ACCUSATORIAL" SYSTEM OF LAW ENFORCEMENT, WATTS V. INDIANA, 338 U.S.
49, 54, AND EVENTUALLY BY CLOSE ATTENTION TO THE INDIVIDUAL'S STATE OF
MIND AND CAPACITY FOR EFFECTIVE CHOICE, E.G., GALLEGOS V. COLORADO, 370
U.S. 49.  THE OUTCOME WAS A CONTINUING RE-EVALUATION ON THE FACTS OF
EACH CASE OF HOW MUCH PRESSURE ON THE SUSPECT WAS PERMISSIBLE.  (FN4) 

AMONG THE CRITERIA OFTEN TAKEN INTO ACCOUNT WERE THREATS OR IMMINENT
DANGER, E.G., PAYNE V. ARKANSAS, 356 U.S. 560, PHYSICAL DEPRIVATIONS
SUCH AS LACK OF SLEEP OR FOOD, E.G., RECK V. PATE, 367 U.S. 433,
REPEATED OR EXTENDED INTERROGATION, E.G., CHAMBERS V. FLORIDA, 309 U.S.
227, LIMITS ON ACCESS TO COUNSEL OR FRIENDS, CROOKER V. CALIFORNIA, 357
U.S. 433; CICENIA V. LAGAY, 357 U.S. 504, LENGTH AND ILLEGALITY OF
DETENTION UNDER STATE LAW, E.G., HAYNES V. WASHINGTON, 373 U.S. 503,
AND INDIVIDUAL WEAKNESS OR INCAPACITIES, LYNUMN V. ILLINOIS, 372 U.S.
528.  APART FROM DIRECT PHYSICAL COERCION, HOWEVER, NO SINGLE DEFAULT
OR FIXED COMBINATION OF DEFAULTS GUARANTEED EXCLUSION, AND SYNOPSES OF
THE CASES WOULD SERVE LITTLE USE BECAUSE THE OVERALL GAUGE HAS BEEN
STEADILY CHANGING, USUALLY IN THE DIRECTION OF RESTRICTING
ADMISSIBILITY.  BUT TO MARK JUST WHAT POINT HAD BEEN REACHED BEFORE THE
COURT JUMPED THE RAILS IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, IT IS
WORTH CAPSULIZING THE THEN-RECENT CASE OF HAYNES V. WASHINGTON, 373
U.S. 503.  THERE, HAYNES HAD BEEN HELD SOME 16 OR MORE HOURS IN
VIOLATION OF STATE LAW BEFORE SIGNING THE DISPUTED CONFESSION, HAD
RECEIVED NO WARNINGS OF ANY KIND, AND DESPITE REQUESTS HAD BEEN REFUSED
ACCESS TO HIS WIFE OR TO COUNSEL, THE POLICE INDICATING THAT ACCESS
WOULD BE ALLOWED AFTER A CONFESSION.  EMPHASIZING ESPECIALLY THIS LAST
INDUCEMENT AND REJECTING SOME CONTRARY INDICIA OF VOLUNTARINESS, THE
COURT IN A 5-TO-4 DECISION HELD THE CONFESSION INADMISSIBLE. 

THERE ARE SEVERAL RELEVANT LESSONS TO BE DRAWN FROM THIS
CONSTITUTIONAL HISTORY.  THE FIRST IS THAT WITH OVER 25 YEARS OF
PRECEDENT THE COURT HAS DEVELOPED AN ELABORATE, SOPHISTICATED, AND
SENSITIVE APPROACH TO ADMISSIBILITY OF CONFESSIONS.  IT IS "JUDICIAL"
IN ITS TREATMENT OF ONE CASE AT A TIME, SEE CULOMBE V. CONNECTICUT, 367
U.S. 568, 635 (CONCURRING OPINION OF THE CHIEF JUSTICE), FLEXIBLE IN
ITS ABILITY TO RESPOND TO THE ENDLESS MUTATIONS OF FACT PRESENTED, AND
EVER MORE FAMILIAR TO THE LOWER COURTS.  OF COURSE, STRICT CERTAINTY IS
NOT OBTAINED IN THIS DEVELOPING PROCESS, BUT THIS IS OFTEN SO WITH
CONSTITUTIONAL PRINCIPLES, AND DISAGREEMENT IS USUALLY CONFINED TO THAT
BORDERLAND OF CLOSE CASES WHERE IT MATTERS LEAST. 

THE SECOND POINT IS THAT IN PRACTICE AND FROM TIME TO TIME IN
PRINCIPLE, THE COURT HAS GIVEN AMPLE RECOGNITION TO SOCIETY'S INTEREST
IN SUSPECT QUESTIONING AS AN INSTRUMENT OF LAW ENFORCEMENT.  CASES
COUNTENANCING QUITE SIGNIFICANT PRESSURES CAN BE CITED WITHOUT
DIFFICULTY,  (FN5) AND THE LOWER COURTS MAY OFTEN HAVE BEEN YET MORE
TOLERANT.  OF COURSE THE LIMITATIONS IMPOSED TODAY WERE REJECTED BY
NECESSARY IMPLICATION IN CASE AFTER CASE, THE RIGHT TO WARNINGS HAVE
BEEN EXPLICITLY REBUFFED IN THIS COURT MANY YEARS AGO.  POWERS V.
UNITED STATES, 223 U.S. 303; WILSON V. UNITED STATES, 162 U.S. 613.  AS
RECENTLY AS HAYNES V. WASHINGTON, 373 U.S. 503, 515, THE COURT OPENLY
ACKNOWLEDGED THAT QUESTIONING OF WITNESSES AND SUSPECTS "IS UNDOUBTEDLY
AN ESSENTIAL TOOL IN EFFECTIVE LAW ENFORCEMENT."  ACCORD, CROOKER V.
CALIFORNIA, 357 U.S. 433, 441.    FINALLY, THE CASES DISCLOSE THAT THE
LANGUAGE IN MANY OF THE OPINIONS OVERSTATES THE ACTUAL COURSE OF
DECISION.  IT HAS BEEN SAID, FOR EXAMPLE, THAT AN ADMISSIBLE CONFESSION
MUST BE MADE BY THE SUSPECT "IN THE UNFETTERED EXERCISE OF HIS OWN
WILL,"  MALLOY V. HOGAN, 378 U.S. 1, 8, AND THAT "A PRISONER IS NOT 'TO
BE MADE THE DELUDED INSTRUMENT OF HIS OWN CONVICTION,'" CULOMBE V.
CONNECTICUT, 367 U.S. 568, 581 (FRANKFURTER, J., ANNOUNCING THE COURT'S
JUDGMENT AND AN OPINION).  THOUGH OFTEN REPEATED, SUCH PRINCIPLES ARE
RARELY OBSERVED IN FULL MEASURE.  EVEN THE WORD "VOLUNTARY" MAY BE
DEEMED SOMEWHAT MISLEADING, ESPECIALLY WHEN ONE CONSIDERS MANY OF THE
CONFESSIONS THAT HAVE BEEN BROUGHT UNDER ITS UMBRELLA.  SEE, E.G.,
SUPRA, N. 5.  THE TENDENCY TO OVERSTATE MAY BE LAID IN PART TO THE
FLAGRANT FACTS OFTEN BEFORE THE COURT; BUT IN ANY EVENT ONE MUST
RECOGNIZE HOW IT HAS TEMPERED ATTITUDES AND LENT SOME COLOR OF
AUTHORITY TO THE APPROACH NOW BEING TAKEN BY THE COURT. 

I TURN NOW TO THE COURT'S ASSERTED RELIANCE ON THE FIFTH AMENDMENT,
AN APPROACH WHICH I FRANKLY REGARD AS A TROMPE L'OEIL.  THE COURT'S
OPINION IN MY VIEW REVEALS NO ADEQUATE BASIS FOR EXTENDING THE FIFTH
AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION TO THE POLICE
STATION.  FAR MORE IMPORTANT, IT FAILS TO SHOW THAT THE COURT'S NEW
RULES ARE WELL SUPPORTED, LET ALONE COMPELLED, BY FIFTH AMENDMENT
PRECEDENTS.  INSTEAD, THE NEW RULES ACTUALLY DERIVE FROM QUOTATION AND
ANALOGY DRAWN FROM PRECEDENTS UNDER THE SIXTH AMENDMENT, WHICH SHOULD
PROPERLY HAVE NO BEARING ON POLICE INTERROGATION. 

THE COURT'S OPENING CONTENTION, THAT THE FIFTH AMENDMENT GOVERNS
POLICE STATION CONFESSIONS, IS PERHAPS NOT AN IMPERMISSIBLE EXTENSION
OF THE LAW BUT IT HAS LITTLE TO COMMEND ITSELF IN THE PRESENT
CIRCUMSTANCES.  HISTORICALLY, THE PRIVILEGE AGAINST SELF-INCRIMINATION
DID NOT BEAR AT ALL ON THE USE OF EXTRA-LEGAL CONFESSIONS, FOR WHICH
DISTINCT STANDARDS EVOLVED; INDEED, "THE HISTORY OF THE TWO PRINCIPLES
IS WIDE APART, DIFFERING BY ONE HUNDRED YEARS IN ORIGIN, AND DERIVED
THROUGH SEPARATE LINES OF PRECEDENTS  ...  ."  8 WIGMORE, EVIDENCE SEC.
2266, AT 401 (MCNAUGHTON REV. 1961).  PRACTICE UNDER THE TWO DOCTRINES
HAS ALSO DIFFERED IN A NUMBER OF IMPORTANT RESPECTS.  (FN6)  EVEN THOSE
WHO WOULD READILY ENLARGE THE PRIVILEGE MUST CONCEDE SOME LINGUISTIC
DIFFICULTIES SINCE THE FIFTH AMENDMENT IN TERMS PROSCRIBES ONLY
COMPELLING ANY PERSON "IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF."  CF. KAMISAR, EQUAL JUSTICE IN THE GATEHOUSES AND MANSIONS OF
AMERICAN CRIMINAL PROCEDURE, IN CRIMINAL JUSTICE IN OUR TIME, 1, 25-26
(1965). 

THOUGH WEIGHTY, I DO NOT SAY THESE POINTS AND SIMILAR ONES ARE
CONCLUSIVE, FOR, AS THE COURT REITERATES, THE PRIVILEGE EMBODIES BASIC
PRINCIPLES ALWAYS CAPABLE OF EXPANSION.  (FN7)  CERTAINLY THE PRIVILEGE
DOES REPRESENT A PROTECTIVE CONCERN FOR THE ACCUSED AND AN EMPHASIS
UPON ACCUSATORIAL RATHER THAN INQUISITORIAL VALUES IN LAW ENFORCEMENT,
ALTHOUGH THIS IS SIMILARLY TRUE OF OTHER LIMITATIONS SUCH AS THE GRAND
JURY REQUIREMENT AND THE REASONABLE DOUBT STANDARD.  ACCUSATORIAL
VALUES, HOWEVER, HAVE OPENLY BEEN ABSORBED INTO THE DUE PROCESS
STANDARD GOVERNING CONFESSIONS; THIS INDEED IS WHY AT PRESENT, "THE
KINSHIP OF THE TWO RULES GOVERNING CONFESSIONS AND SELF-INCRIMINATION
IS TOO APPARENT FOR DENIAL."  MCCORMICK, EVIDENCE 155 (1954).  SINCE
EXTENSION OF THE GENERAL PRINCIPLE HAS ALREADY OCCURRED, TO INSIST THAT
THE PRIVILEGE APPLIES AS SUCH SERVES ONLY TO CARRY OVER INAPPOSITE
HISTORICAL DETAILS AND ENGAGING RHETORIC AND TO OBSCURE THE POLICY
CHOICES TO BE MADE IN REGULATING CONFESSIONS. 

HAVING DECIDED THAT THE FIFTH AMENDMENT PRIVILEGE DOES APPLY IN THE
POLICE STATION, THE COURT REVEALS THAT THE PRIVILEGE IMPOSES MORE
EXACTING RESTRICTIONS THAN DOES THE FOURTEENTH AMENDMENT'S
VOLUNTARINESS TEST.  (FN8)  IT THEN EMERGES FROM A DISCUSSION OF
ESCOBEDO THAT THE FIFTH AMENDMENT REQUIRES FOR AN ADMISSIBLE CONFESSION
THAT IT BE GIVEN BY ONE DISTINCTLY AWARE OF HIS RIGHT NOT TO SPEAK AND
SHIELDED FROM "THE COMPELLING ATMOSPHERE" OF INTERROGATION.  SEE ANTE,
PP. 465-466.  FROM THESE KEY PREMISES, THE COURT FINALLY DEVELOPS THE
SAFEGUARDS OF WARNING, COUNSEL, AND SO FORTH.  I DO NOT BELIEVE THESE
PREMISES ARE SUSTAINED BY PRECEDENTS UNDER THE FIFTH AMENDMENT.  (FN9) 

THE MORE IMPORTANT PREMISE IS THAT PRESSURE ON THE SUSPECT MUST BE
ELIMINATED THOUGH IT BE ONLY THE SUBTLE INFLUENCE OF THE ATMOSPHERE AND
SURROUNDINGS.  THE FIFTH AMENDMENT, HOWEVER, HAS NEVER BEEN THOUGHT TO
FORBID ALL PRESSURE TO INCRIMINATE ONE'S SELF IN THE SITUATIONS COVERED
BY IT.  ON THE CONTRARY, IT HAS BEEN HELD THAT FAILURE TO INCRIMINATE
ONE'S SELF CAN RESULT IN DENIAL OF REMOVAL OF ONE'S CASE FROM STATE TO
FEDERAL COURT, MARYLAND V. SOPER, 270 U.S. 9; IN REFUSAL OF A MILITARY
COMMISSION, ORLOFF V. WILLOUGHBY, 345 U.S. 83; IN DENIAL OF A DISCHARGE
IN BANKRUPTCY, KAUFMAN V. HURWITZ, 176 F.2D 210; AND IN NUMEROUS OTHER
ADVERSE CONSEQUENCES.  SEE 8 WIGMORE, EVIDENCE SEC. 2272, AT 441-444,
N. 18 (MCNAUGHTON REV. 1961); MAGUIRE, EVIDENCE OF GUILT SEC. 2.062
(1959).  THIS IS NOT TO SAY THAT SHORT OF JAIL OR TORTURE ANY SANCTION
IS PERMISSIBLE IN ANY CASE; POLICY AND HISTORY ALIKE MAY IMPOSE SHARP
LIMITS.  SEE, E.G., GRIFFIN V. CALIFORNIA, 380 U.S. 609.  HOWEVER, THE
COURT'S UNSPOKEN ASSUMPTION THAT ANY PRESSURE VIOLATES THE PRIVILEGE IS
NOT SUPPORTED BY THE PRECEDENTS AND IT HAS FAILED TO SHOW WHY THE FIFTH
AMENDMENT PROHIBITS THAT RELATIVELY MILD PRESSURE THE DUE PROCESS
CLAUSE PERMITS. 

THE COURT APPEARS SIMILARLY WRONG IN THINKING THAT PRECISE KNOWLEDGE
OF ONE'S RIGHTS IS A SETTLED PREREQUISITE UNDER THE FIFTH AMENDMENT TO
THE LOSS OF ITS PROTECTIONS.  A NUMBER OF LOWER FEDERAL COURT CASES
HAVE HELD THAT GRAND JURY WITNESSES NEED NOT ALWAYS BE WARNED OF THEIR
PRIVILEGE, E.G., UNITED STATES V. SCULLY, 225 F.2D 113, 116, AND
WIGMORE STATES THIS TO BE THE BETTER RULE FOR TRIAL WITNESSES.  SEE 8
WIGMORE, EVIDENCE SEC. 2269 (MCNAUGHTON REV. 1961).  CF. HENRY V.
MISSISSIPPI, 379 U.S. 443, 451-452 (WAIVER OF CONSTITUTIONAL RIGHTS BY
COUNSEL DESPITE DEFENDANT'S IGNORANCE HELD ALLOWABLE).  NO FIFTH
AMENDMENT PRECEDENT IS CITED FOR THE COURT'S CONTRARY VIEW.  THERE
MIGHT OF COURSE BE REASONS APART FROM FIFTH AMENDMENT PRECEDENT FOR
REQUIRING WARNING OR ANY OTHER SAFEGUARD ON QUESTIONING BUT THAT IS A
DIFFERENT MATTER ENTIRELY.  SEE INFRA, PP. 516-517. 

A CLOSING WORD MUST BE SAID ABOUT THE ASSISTANCE OF COUNSEL CLAUSE OF
THE SIXTH AMENDMENT, WHICH IS NEVER EXPRESSLY RELIED ON BY THE COURT
BUT WHOSE JUDICIAL PRECEDENTS TURN OUT TO BE LINCHPINS OF THE
CONFESSION RULES ANNOUNCED TODAY.  TO SUPPORT ITS REQUIREMENT OF A
KNOWING AND INTELLIGENT WAIVER, THE COURT CITES JOHNSON V. ZERBST, 304
U.S. 458, ANTE, P. 475; APPOINTMENT OF COUNSEL FOR THE INDIGENT SUSPECT
IS TIED TO GIDEON V. WAINWRIGHT, 372 U.S. 335, AND DOUGLAS V.
CALIFORNIA, 372 U.S. 353, ANTE, P. 473; THE SILENT-RECORD DOCTRINE IS
BORROWED FROM CARNLEY V. COCHRAN, 369 U.S. 506, ANTE, P. 475, AS IS THE
RIGHT TO AN EXPRESS OFFER OF COUNSEL, ANTE, P. 471.  ALL THESE CASES
IMPARTING GLOSSES TO THE SIXTH AMENDMENT CONCERNED COUNSEL AT TRIAL OR
ON APPEAL.  WHILE THE COURT FINDS NO PERTINENT DIFFERENCE BETWEEN
JUDICIAL PROCEEDINGS AND POLICE INTERROGATION, I BELIEVE THE
DIFFERENCES ARE SO VAST AS TO DISQUALIFY WHOLLY THE SIXTH AMENDMENT
PRECEDENTS AS SUITABLE ANALOGIES IN THE PRESENT CASES.  (FN10) 

THE ONLY ATTEMPT IN THIS COURT TO CARRY THE RIGHT TO COUNSEL INTO THE
STATION HOUSE OCCURRED IN ESCOBEDO, THE COURT REPEATING SEVERAL TIMES
THAT THE STAGE WAS NO LESS "CRITICAL" THAN TRIAL ITSELF.   SEE 378
U.S., 485-488.  THIS IS HARDLY PERSUASIVE WHEN WE CONSIDER THAT A GRAND
JURY INQUIRY, THE FILING OF A CERTIORARI PETITION, AND CERTAINLY THE
PURCHASE OF NARCOTICS BY AN UNDERCOVER AGENT FROM A PROSPECTIVE
DEFENDANT MAY ALL BE EQUALLY "CRITICAL" YET PROVISION OF COUNSEL AND
ADVICE ON THAT SCORE HAVE NEVER BEEN THOUGHT COMPELLED BY THE
CONSTITUTION IN SUCH CASES.  THE SOUND REASON WHY THIS RIGHT IS SO
FREELY EXTENDED FOR A CRIMINAL TRIAL IS THE SEVERE INJUSTICE RISKED BY
CONFRONTING AN UNTRAINED DEFENDANT WITH A RANGE OF TECHNICAL POINTS OF
LAW, EVIDENCE, AND TACTICS FAMILIAR TO THE PROSECUTOR BUT NOT TO
HIMSELF.  THIS DANGER SHRINKS MARKEDLY IN THE POLICE STATION WHERE
INDEED THE LAWYER IN FULFILLING HIS PROFESSIONAL RESPONSIBILITIES OF
NECESSITY MAY BECOME AN OBSTACLE TO TRUTHFINDING.  SEE INFRA, N. 12. 
THE COURT'S SUMMARY CITATION OF THE SIXTH AMENDMENT CASES HERE SEEMS TO
ME BEST DESCRIBED AS "THE DOMINO METHOD OF CONSTITUTIONAL ADJUDICATION
...  WHEREIN EVERY EXPLANATORY STATEMENT IN A PREVIOUS OPINION IS MADE
THE BASIS FOR EXTENSION  ...  WHEREIN EVERY EXPLANATORY STATEMENT IN A
PREVIOUS OPINION IS MADE THE

                          III.  POLICY CONSIDERATIONS. 

EXAMINED AS AN EXPRESSION OF PUBLIC POLICY, THE COURT'S NEW REGIME
PROVES SO DUBIOUS THAT THERE CAN BE NO DUE COMPENSATION FOR ITS
WEAKNESS IN CONSTITUTIONAL LAW.  THE FOREGOING DISCUSSION HAS SHOWN, I
THINK, HOW MISTAKEN IS THE COURT IN IMPLYING THAT THE CONSTITUTION HAS
STRUCK THE BALANCE IN FAVOR OF THE APPROACH THE COURT TAKES.  ANTE, P.
479.  RATHER, PRECEDENT REVEALS THAT THE FOURTEENTH AMENDMENT IN
PRACTICE HAS BEEN CONSTRUED TO STRIKE A DIFFERENT BALANCE, THAT THE
FIFTH AMENDMENT GIVES THE COURT LITTLE SOLID SUPPORT IN THIS CONTEXT,
AND THAT THE SIXTH AMENDMENT SHOULD HAVE NO BEARING AT ALL.  LEGAL
HISTORY HAS BEEN STRETCHED BEFORE TO SATISFY DEEP NEEDS OF SOCIETY.  IN
THIS INSTANCE, HOWEVER, THE COURT HAS NOT AND CANNOT MAKE THE POWERFUL
SHOWING THAT ITS NEW RULES ARE PLAINLY DESIRABLE IN THE CONTEXT OF OUR
SOCIETY, SOMETHING WHICH IS SURELY DEMANDED BEFORE THOSE RULES ARE
ENGRAFTED ONTO THE CONSTITUTION AND IMPOSED ON EVERY STATE AND COUNTY
IN THE LAND. 

WITHOUT AT ALL SUBSCRIBING TO THE GENERALLY BLACK PICTURE OF POLICE
CONDUCT PAINTED BY THE COURT, I THINK IT MUST BE FRANKLY RECOGNIZED AT
THE OUTSET THAT POLICE QUESTIONING ALLOWABLE UNDER DUE PROCESS
PRECEDENTS MAY INHERENTLY ENTAIL SOME PRESSURE ON THE SUSPECT AND MAY
SEEK ADVANTAGE IN HIS IGNORANCE OR WEAKNESSES.  THE ATMOSPHERE AND
QUESTIONING TECHNIQUES, PROPER AND FAIR THOUGH THEY BE, CAN IN
THEMSELVES EXERT A TUG ON THE SUSPECT TO CONFESS, AND IN THIS LIGHT "TO
SPEAK OF ANY CONFESSIONS OF CRIME MADE AFTER ARREST AS BEING
'VOLUNTARY' OR 'UNCOERCED' IS SOMEWHAT INACCURATE, ALTHOUGH
TRADITIONAL.  A CONFESSION IS WHOLLY AND INCONTESTABLY VOLUNTARY ONLY
IF A GUILTY PERSON GIVES HIMSELF UP TO THE LAW AND BECOMES HIS OWN
ACCUSER."  ASHCRAFT V. TENNESSEE, 322 U.S. 143, 161 (JACKSON, J.,
DISSENTING).  UNTIL TODAY, THE ROLE OF THE CONSTITUTION HAS BEEN ONLY
TO SIFT OUT UNDUE PRESSURE, NOT TO ASSURE SPONTANEOUS CONFESSIONS. 
(FN11) 

THE COURT'S NEW RULES AIM TO OFFSET THESE MINOR PRESSURES AND
DISADVANTAGES INTRINSIC TO ANY KIND OF POLICE INTERROGATION.  THE RULES
DO NOT SERVE DUE PROCESS INTERESTS IN PREVENTING BLATANT COERCION
SINCE, AS I NOTED EARLIER, THEY DO NOTHING TO CONTAIN THE POLICEMAN WHO
IS PREPARED TO LIE FROM THE START.  THE RULES WORK FOR RELIABILITY IN
CONFESSIONS ALMOST ONLY IN THE PICKWICKIAN SENSE THAT THEY CAN PREVENT
SOME FROM BEING GIVEN AT ALL.  (FN12)  IN SHORT, THE BENEFIT OF THIS
NEW REGIME IS SIMPLY TO LESSEN OR WIPE OUT THE INHERENT COMPULSION AND
INEQUALITIES TO WHICH THE COURT DEVOTES SOME NINE PAGES OF
DESCRIPTION.  ANTE, PP. 448-456. 

WHAT THE COURT LARGELY IGNORES IS THAT ITS RULES IMPAIR, IF THEY WILL
NOT EVENTUALLY SERVE WHOLLY TO FRUSTRATE, AN INSTRUMENT OF LAW
ENFORCEMENT THAT HAS LONG AND QUITE REASONABLY BEEN THOUGHT WORTH THE
PRICE PAID FOR IT.  (FN13)  THERE CAN BE LITTLE DOUBT THAT THE COURT'S
NEW CODE WOULD MARKEDLY DECREASE THE NUMBER OF CONFESSIONS.  TO WARN
THE SUSPECT THAT HE MAY REMAIN SILENT AND REMIND HIM THAT HIS
CONFESSION MAY BE USED IN COURT ARE MINOR OBSTRUCTIONS.  TO REQUIRE
ALSO AN EXPRESS WAIVER BY THE SUSPECT AND AN END TO QUESTIONING
WHENEVER HE DEMURS MUST HEAVILY HANDICAP QUESTIONING.  AND TO SUGGEST
OR PROVIDE COUNSEL FOR THE SUSPECT SIMPLY INVITES THE END OF THE
INTERROGATION.  SEE, SUPRA, N. 12. 

HOW MUCH HARM THIS DECISION WILL INFLICT ON LAW ENFORCEMENT CANNOT
FAIRLY BE PREDICTED WITH ACCURACY.  EVIDENCE ON THE ROLE OF CONFESSIONS
IS NOTORIOUSLY INCOMPLETE, SEE DEVELOPMENTS, SUPRA, N. 2, AT 941-944,
AND LITTLE IS ADDED BY THE COURT'S REFERENCE TO THE FBI EXPERIENCE AND
THE RESOURCES BELIEVED WASTED IN INTERROGATION.  SEE INFRA, N. 19, AND
TEXT.  WE DO KNOW THAT SOME CRIMES CANNOT BE SOLVED WITHOUT
CONFESSIONS, THAT AMPLE EXPERT TESTIMONY ATTESTS TO THEIR IMPORTANCE IN
CRIME CONTROL, (FN14) AND THAT THE COURT IS TAKING A REAL RISK WITH
SOCIETY'S WELFARE IN IMPOSING ITS NEW REGIME ON THE COUNTRY.  THE
SOCIAL COSTS OF CRIME ARE TOO GREAT TO CALL THE NEW RULES ANYTHING BUT
A HAZARDOUS EXPERIMENTATION. 

WHILE PASSING OVER THE COSTS AND RISKS OF ITS EXPERIMENT, THE COURT
PORTRAYS THE EVILS OF NORMAL POLICE QUESTIONING IN TERMS WHICH I THINK
ARE EXAGGERATED.  ALBEIT STRINGENTLY CONFINED BY THE DUE PROCESS
STANDARDS INTERROGATION IS NO DOUBT OFTEN INCONVENIENT AND UNPLEASANT
FOR THE SUSPECT.  HOWEVER, IT IS NO LESS SO FOR A MAN TO BE ARRESTED
AND JAILED, TO HAVE HIS HOUSE SEARCHED, OR TO STAND TRIAL IN COURT, YET
ALL THIS MAY PROPERLY HAPPEN TO THE MOST INNOCENT GIVEN PROBABLE CAUSE,
A WARRANT, OR AN INDICTMENT.  SOCIETY HAS ALWAYS PAID A STIFF PRICE FOR
LAW AND ORDER, AND PEACEFUL INTERROGATION IS NOT ONE OF THE DARK
MOMENTS OF THE LAW.    THIS BRIEF STATEMENT OF THE COMPETING
CONSIDERATIONS SEEMS TO ME AMPLE PROOF THAT THE COURT'S PREFERENCE IS
HIGHLY DEBATABLE AT BEST AND THEREFORE NOT TO BE READ INTO THE
CONSTITUTION.  HOWEVER, IT MAY MAKE THE ANALYSIS MORE GRAPHIC TO
CONSIDER THE ACTUAL FACTS OF ONE OF THE FOUR CASES REVERSED BY THE
COURT.  MIRANDA V. ARIZONA SERVES BEST, BEING NEITHER THE HARDEST NOR
THE EASIEST OF THE FOUR UNDER THE COURT'S STANDARDS.  (FN15) 

ON MARCH 3, 1963, AN 18-YEAR-OLD GIRL WAS KIDNAPPED AND FORCIBLY
RAPED NEAR PHOENIX, ARIZONA.  TEN DAYS LATER, ON THE MORNING OF MARCH
13, PETITIONER MIRANDA WAS ARRESTED AND TAKEN TO THE POLICE STATION. 
AT THIS TIME MIRANDA WAS 23 YEARS OLD, INDIGENT, AND EDUCATED TO THE
EXTENT OF COMPLETING HALF THE NINTH GRADE.  HE HAD "AN EMOTIONAL
ILLNESS" OF THE SCHIZOPHRENIC TYPE, ACCORDING TO THE DOCTOR WHO
EVENTUALLY EXAMINED HIM; THE DOCTOR'S REPORT ALSO STATED THAT MIRANDA
WAS "ALERT AND ORIENTED AS TO TIME, PLACE, AND PERSON," INTELLIGENT
WITHIN NORMAL LIMITS, COMPETENT TO STAND TRIAL, AND SANE WITHIN THE
LEGAL DEFINITION.  AT THE POLICE STATION, THE VICTIM PICKED MIRANDA OUT
OF A LINEUP, AND TWO OFFICERS THEN TOOK HIM INTO A SEPARATE ROOM TO
INTERROGATE HIM, STARTING ABOUT 11:30 A.M.  THOUGH AT FIRST DENYING HIS
GUILT, WITHIN A SHORT TIME MIRANDA GAVE A DETAILED ORAL CONFESSION AND
THEN WROTE OUT IN HIS OWN HAND AND SIGNED A BRIEF STATEMENT ADMITTING
AND DESCRIBING THE CRIME.  ALL THIS WAS ACCOMPLISHED IN TWO HOURS OR
LESS WITHOUT ANY FORCE, THREATS OR PROMISES AND - I WILL ASSUME THIS
THOUGH THE RECORD IS UNCERTAIN, ANTE, 491-492 AND NN. 66-67 - WITHOUT
ANY EFFECTIVE WARNINGS AT ALL. 

MIRANDA'S ORAL AND WRITTEN CONFESSIONS ARE NOW HELD INADMISSIBLE
UNDER THE COURT'S NEW RULES.  ONE IS ENTITLED TO FEEL ASTONISHED THAT
THE CONSTITUTION CAN BE READ TO PRODUCE THIS RESULT.  THESE CONFESSIONS
WERE OBTAINED DURING BRIEF, DAYTIME QUESTIONING CONDUCTED BY TWO
OFFICERS AND UNMARKED BY ANY OF THE TRADITIONAL INDICIA OF COERCION. 
THEY ASSURED A CONVICTION FOR A BRUTAL AND UNSETTLING CRIME, FOR WHICH
THE POLICE HAD AND QUITE POSSIBLY COULD OBTAIN LITTLE EVIDENCE OTHER
THAN THE VICTIM'S IDENTIFICATIONS, EVIDENCE WHICH IS FREQUENTLY
UNRELIABLE.  THERE WAS, IN SUM, A LEGITIMATE PURPOSE, NO PERCEPTIBLE
UNFAIRNESS, AND CERTAINLY LITTLE RISK OF INJUSTICE IN THE
INTERROGATION.  YET THE RESULTING CONFESSIONS AND THE RESPONSIBLE
COURSE OF POLICE PRACTICE THEY REPRESENT, ARE TO BE SACRIFICED TO THE
COURT'S OWN FINESPUN CONCEPTION OF FAIRNESS WHICH I SERIOUSLY DOUBT IS
SHARED BY MANY THINKING CITIZENS IN THIS COUNTRY.  (FN16) 

THE TENOR OF JUDICIAL OPINION ALSO FALLS WELL SHORT OF SUPPORTING THE
COURT'S NEW APPROACH.  ALTHOUGH ESCOBEDO HAS WIDELY BEEN INTERPRETED AS
AN OPEN INVITATION TO LOWER COURTS TO REWRITE THE LAW OF CONFESSIONS, A
SIGNIFICANT HEAVY MAJORITY OF THE STATE AND FEDERAL DECISIONS IN POINT
HAVE SOUGHT QUITE NARROW INTERPRETATIONS.  (FN17)  OF THE COURTS THAT
ACCEPTED THE INVITATION, IT IS HARD TO KNOW HOW MANY HAVE FELT
COMPELLED BY THEIR BEST GUESS AS TO THIS COURT'S LIKELY CONSTRUCTION;
BUT NONE OF THE STATE DECISIONS SAW FIT TO RELY ON THE STATE PRIVILEGE
AGAINST SELF-INCRIMINATION, AND NO DECISION AT ALL HAS GONE AS FAR AS
THIS COURT GOES TODAY.  (FN18) 

IT IS ALSO INSTRUCTIVE TO COMPARE THE ATTITUDE IN THIS CASE OF THOSE
RESPONSIBLE FOR LAW ENFORCEMENT WITH THE OFFICIAL VIEWS THAT EXISTED
WHEN THE COURT UNDERTOOK THREE MAJOR REVISIONS OF PROSECUTORIAL
PRACTICE PRIOR TO THIS CASE, JOHNSON V. ZERBST, 304 U.S. 458, MAPP V.
OHIO, 367 U.S. 643, AND GIDEON V. WAINWRIGHT, 372 U.S. 335.  IN
JOHNSON, WHICH ESTABLISHED THAT APPOINTED COUNSEL MUST BE OFFERED THE
INDIGENT IN FEDERAL CRIMINAL TRIALS, THE FEDERAL GOVERNMENT ALL BUT
CONCEDED THE BASIC ISSUE, WHICH HAD IN FACT BEEN RECENTLY FIXED AS
DEPARTMENT OF JUSTICE POLICY.  SEE BEANEY, RIGHT TO COUNSEL 29-30, 36
42 (1955).  IN MAPP, WHICH IMPOSED THE EXCLUSIONARY RULE ON THE STATES
FOR FOURTH AMENDMENT VIOLATIONS, MORE THAN HALF OF THE STATES HAD
THEMSELVES ALREADY ADOPTED SOME SUCH RULE.  SEE 367 U.S., AT 651.  IN
GIDEON, WHICH EXTENDED JOHNSON V. ZERBST TO THE STATES, AN AMICUS BRIEF
WAS FILED BY 22 STATES AND COMMONWEALTHS URGING THAT COURSE; ONLY TWO
STATES BESIDES THAT OF THE RESPONDENT CAME FORWARD TO PROTEST.  SEE 372
U.S., AT 345.  BY CONTRAST, IN THIS CASE NEW RESTRICTIONS ON POLICE
QUESTIONING HAVE BEEN OPPOSED BY THE UNITED STATES AND IN AN AMICUS
BRIEF SIGNED BY 27 STATES AND COMMONWEALTHS, NOT INCLUDING THE THREE
OTHER STATES WHICH ARE PARTIES.  NO STATE IN THE COUNTRY HAS URGED THIS
COURT TO IMPOSE THE NEWLY ANNOUNCED RULES, NOR HAS ANY STATE CHOSEN TO
GO NEARLY SO FAR ON ITS OWN. 

THE COURT IN CLOSING ITS GENERAL DISCUSSION INVOKES THE PRACTICE IN
FEDERAL AND FOREIGN JURISDICTIONS AS LENDING WEIGHT TO ITS NEW CURBS ON
CONFESSIONS FOR ALL THE STATES.  A BRIEF RESUME WILL SUFFICE TO SHOW
THAT NONE OF THESE JURISDICTIONS HAS STRUCK SO ONE-SIDED A BALANCE AS
THE COURT DOES TODAY.  HEAVIEST RELIANCE IS PLACED ON THE FBI
PRACTICE.  DIFFERING CIRCUMSTANCES MAY MAKE THIS COMPARISON QUITE
UNTRUSTWORTHY,  (FN19) BUT IN ANY EVENT THE FBI FALLS SENSIBLY SHORT OF
THE COURT'S FORMALISTIC RULES.  FOR EXAMPLE, THERE IS NO INDICATION
THAT FBI AGENTS MUST OBTAIN AN AFFIRMATIVE "WAIVER" BEFORE THEY PURSUE
THEIR QUESTIONING.  NOR IS IT CLEAR THAT ONE INVOKING HIS RIGHT TO
SILENCE MAY NOT BE PREVAILED UPON TO CHANGE HIS MIND.  AND THE WARNING
AS TO APPOINTED COUNSEL APPARENTLY INDICATES ONLY THAT ONE WILL BE
ASSIGNED BY THE JUDGE WHEN THE SUSPECT APPEARS BEFORE HIM; THE THRUST
OF THE COURT'S RULES IS TO INDUCE THE SUSPECT TO OBTAIN APPOINTED
COUNSEL BEFORE CONTINUING THE INTERVIEW.  SEE ANTE, PP. 484-486. 
APPARENTLY AMERICAN MILITARY PRACTICE, BRIEFLY MENTIONED BY THE COURT,
HAS THESE SAME LIMITS AND IS STILL LESS FAVORABLE TO THE SUSPECT THAN
THE FBI WARNING, MAKING NO MENTION OF APPOINTED COUNSEL.  DEVELOPMENTS,
SUPRA, N. 2, AT 1084-1089. 

THE LAW OF THE FOREIGN COUNTRIES DESCRIBED BY THE COURT ALSO REFLECTS
A MORE MODERATE CONCEPTION OF THE RIGHTS OF THE ACCUSED AS AGAINST
THOSE OF SOCIETY WHEN OTHER DATA ARE CONSIDERED.  CONCEDEDLY, THE
ENGLISH EXPERIENCE IS MOST RELEVANT.  IN THAT COUNTRY, A CAUTION AS TO
SILENCE BUT NOT COUNSEL HAS LONG BEEN MANDATED BY THE "JUDGES' RULES,"
WHICH ALSO PLACE OTHER SOMEWHAT IMPRECISE LIMITS ON POLICE CROSS
EXAMINATION OF SUSPECTS.  HOWEVER, IN THE COURT'S DISCRETION
CONFESSIONS CAN BE AND APPARENTLY QUITE FREQUENTLY ARE ADMITTED IN
EVIDENCE DESPITE DISREGARD OF THE JUDGES' RULES, SO LONG AS THEY ARE
FOUND VOLUNTARY UNDER THE COMMON-LAW TEST.  MOREOVER, THE CHECK THAT
EXISTS ON THE USE OF PRETRIAL STATEMENTS IS COUNTERBALANCED BY THE
EVIDENT ADMISSIBILITY OF FRUITS OF AN ILLEGAL CONFESSION AND BY THE
JUDGE'S OFTEN-USED AUTHORITY TO COMMENT ADVERSELY ON THE DEFENDANT'S
FAILURE TO TESTIFY.  (FN20) 

INDIA, CEYLON AND SCOTLAND ARE THE OTHER EXAMPLES CHOSEN BY THE
COURT.  IN INDIA AND CEYLON THE GENERAL BAN ON POLICE-ADDUCED
CONFESSIONS CITED BY THE COURT IS SUBJECT TO A MAJOR EXCEPTION:  IF
EVIDENCE IS UNCOVERED BY POLICE QUESTIONING, IT IS FULLY ADMISSIBLE AT
TRIAL ALONG WITH THE CONFESSION ITSELF, SO FAR AS IT RELATES TO THE
EVIDENCE AND IS NOT BLATANTLY COERCED.  SEE DEVELOPMENTS, SUPRA, N. 2,
AT 1106-1110; REG. V. RAMASAMY (1965) A.C. 1 (P.C.).  SCOTLAND'S LIMITS
ON INTERROGATION DO MEASURE UP TO THE COURT'S; HOWEVER, RESTRAINED
COMMENT AT TRIAL ON THE DEFENDANT'S FAILURE TO TAKE THE STAND IS
ALLOWED THE JUDGE, AND IN MANY OTHER RESPECTS SCOTCH LAW REDRESSES THE
PROSECUTOR'S DISADVANTAGE IN WAYS NOT PERMITTED IN THIS COUNTRY. 
(FN21)  THE COURT ENDS ITS SURVEY BY IMPUTING ADDED STRENGTH TO OUR
PRIVILEGE AGAINST SELF-INCRIMINATION SINCE, BY CONTRAST TO OTHER
COUNTRIES, IT IS EMBODIED IN A WRITTEN CONSTITUTION.  CONSIDERING THE
LIBERTIES THE COURT HAS TODAY TAKEN WITH CONSTITUTIONAL HISTORY AND
PRECEDENT, FEW WILL FIND THIS EMPHASIS PERSUASIVE. 

IN CLOSING THIS NECESSARY TRUNCATED DISCUSSION OF POLICY
CONSIDERATIONS ATTENDING THE NEW CONFESSION RULES, SOME REFERENCE MUST
BE MADE TO THEIR IRONIC UNTIMELINESS.  THERE IS NOW IN PROGRESS IN THIS
COUNTRY A MASSIVE RE-EXAMINATION OF CRIMINAL LAW ENFORCEMENT PROCEDURES
ON A SCALE NEVER BEFORE WITNESSED.  PARTICIPANTS IN THIS UNDERTAKING
INCLUDE A SPECIAL COMMITTEE OF THE AMERICAN BAR ASSOCIATION, UNDER THE
CHAIRMANSHIP OF CHIEF JUDGE LUMBARD OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT; A DISTINGUISHED STUDY GROUP OF THE AMERICAN LAW
INSTITUTE, HEADED BY PROFESSORS VORENBERG AND BATOR OF THE HARVARD LAW
SCHOOL; AND THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, UNDER THE LEADERSHIP OF THE ATTORNEY GENERAL
OF THE UNITED STATES.  (FN22)  STUDIES ARE ALSO BEING CONDUCTED BY THE
DISTRICT OF COLUMBIA CRIME COMMISSION, THE GEORGETOWN LAW CENTER, AND
BY OTHERS EQUIPPED TO DO PRACTICAL RESEARCH.  (FN23)  THERE ARE ALSO
SIGNS THAT LEGISLATURES IN SOME OF THE STATES MAY BE PREPARING TO RE
EXAMINE THE PROBLEM BEFORE US. (FN24) 

IT IS NO SECRET THAT CONCERN HAS BEEN EXPRESSED LEST LONG-RANGE AND
LASTING REFORMS BE FRUSTRATED BY THIS COURT'S TOO RAPID DEPARTURE FROM
EXISTING CONSTITUTIONAL STANDARDS.  DESPITE THE COURT'S DISCLAIMER, THE
PRACTICAL EFFECT OF THE DECISION MADE TODAY MUST INEVITABLY BE TO
HANDICAP SERIOUSLY SOUND EFFORTS AT REFORM, NOT LEAST BY REMOVING
OPTIONS NECESSARY TO A JUST COMPROMISE OF COMPETING INTERESTS.  OF
COURSE LEGISLATIVE REFORM IS RARELY SPEEDY OR UNANIMOUS, THOUGH THIS
COURT HAS BEEN MORE PATIENT IN THE PAST.  (FN25)  BUT THE LEGISLATIVE
REFORMS WHEN THEY COME WOULD HAVE THE VAST ADVANTAGE OF EMPIRICAL DATA
AND COMPREHENSIVE STUDY, THEY WOULD ALLOW EXPERIMENTATION AND USE OF
SOLUTIONS NOT OPEN TO THE COURTS, AND THEY WOULD RESTORE THE INITIATIVE
IN CRIMINAL LAW REFORM TO THOSE FORUMS WHERE IT TRULY BELONGS. 

                    IV.  CONCLUSIONS. 

ALL FOUR OF THE CASES INVOLVED HERE PRESENT EXPRESS CLAIMS THAT
CONFESSIONS WERE INADMISSIBLE, NOT BECAUSE OF COERCION IN THE
TRADITIONAL DUE PROCESS SENSE, BUT SOLELY BECAUSE OF LACK OF COUNSEL OR
LACK OF WARNINGS CONCERNING COUNSEL AND SILENCE.  FOR THE REASONS
STATED IN THIS OPINION, I WOULD ADHERE TO THE DUE PROCESS TEST AND
REJECT THE NEW REQUIREMENTS INAUGURATED BY THE COURT.  ON THIS PREMISE
MY DISPOSITION TO EACH OF THESE CASES CAN BE STATED BRIEFLY. 

IN TWO OF THE THREE CASES COMING FROM STATE COURTS, MIRANDA V.
ARIZONA (NO. 759) AND VIGNERA V. NEW YORK (NO. 760), THE CONFESSIONS
WERE HELD ADMISSIBLE AND NO OTHER ERRORS WORTH COMMENT ARE ALLEGED BY
PETITIONERS.  I WOULD AFFIRM IN THESE TWO CASES.  THE OTHER STATE CASE
IS CALIFORNIA V. STEWART (NO. 584), WHERE THE STATE SUPREME COURT HELD
THE CONFESSION INADMISSIBLE AND REVERSED THE CONVICTION.  IN THAT CASE
I WOULD DISMISS THE WRIT OF CERTIORARI ON THE GROUND THAT NO FINAL
JUDGMENT IS BEFORE US, 28 U.S.C. SEC. 1257 (1964 ED.); PUTTING ASIDE
THE NEW TRIAL OPEN TO THE STATE IN ANY EVENT, THE CONFESSION ITSELF HAS
NOT EVEN BEEN FINALLY EXCLUDED SINCE THE CALIFORNIA SUPREME COURT LEFT
THE STATE FREE TO SHOW PROOF OF A WAIVER.  IF THE MERITS OF THE
DECISION IN STEWART BE REACHED, THEN I BELIEVE IT SHOULD BE REVERSED
AND THE CASE REMANDED SO THE STATE SUPREME COURT MAY PASS ON THE OTHER
CLAIMS AVAILABLE TO RESPONDENT. 

IN THE FEDERAL CASE, WESTOVER V. UNITED STATES (NO. 761), A NUMBER OF
ISSUES ARE RAISED BY PETITIONER APART FROM THE ONE ALREADY DEALT WITH
IN THIS DISSENT.  NONE OF THESE OTHER CLAIMS APPEARS TO ME TENABLE, NOR
IN THIS CONTEXT TO WARRANT EXTENDED DISCUSSION.  IT IS URGED THAT THE
CONFESSION WAS ALSO INADMISSIBLE BECAUSE NOT VOLUNTARY EVEN MEASURED BY
DUE PROCESS STANDARDS AND BECAUSE FEDERAL-STATE COOPERATION BROUGHT THE
MCNABB-MALLORY RULE INTO PLAY UNDER ANDERSON V. UNITED STATES, 318 U.S.
350.  HOWEVER, THE FACTS ALLEGED FALL WELL SHORT OF COERCION IN MY
VIEW, AND I BELIEVE THE INVOLVEMENT OF FEDERAL AGENTS IN PETITIONER'S
ARREST AND DETENTION BY THE STATE TOO SLIGHT TO INVOKE ANDERSON.  I
AGREE WITH THE GOVERNMENT THAT THE ADMISSION OF THE EVIDENCE NOW
PROTESTED BY PETITIONER WAS AT MOST HARMLESS ERROR, AND TWO FINAL
CONTENTIONS - ONE INVOLVING WEIGHT OF THE EVIDENCE AND ANOTHER IMPROPER
PROSECUTOR COMMENT - SEEM TO ME WITHOUT MERIT.  I WOULD THEREFORE
AFFIRM WESTOVER'S CONVICTION. 

IN CONCLUSION:  NOTHING IN THE LETTER OR THE SPIRIT OF THE
CONSTITUTION OR IN THE PRECEDENTS SQUARES WITH THE HEAVY-HANDED AND ONE
SIDED ACTION THAT IS SO PRECIPITOUSLY TAKEN BY THE COURT IN THE NAME OF
FULFILLING ITS CONSTITUTIONAL RESPONSIBILITIES.  THE FORAY WHICH THE
COURT MAKES TODAY BRINGS TO MIND THE WISE AND FARSIGHTED WORDS OF MR.
JUSTICE JACKSON IN DOUGLAS V. JEANNETTE, 319 U.S. 157, 181 (SEPARATE
OPINION):  "THIS COURT IS FOREVER ADDING NEW STORIES TO THE TEMPLES OF
CONSTITUTIONAL LAW, AND THE TEMPLES HAVE A WAY OF COLLAPSING WHEN ONE
STORY TOO MANY IS ADDED." 

FN1  MY DECISION IN THIS OPINION IS DIRECTED TO THE MAIN QUESTIONS
DECIDED BY THE COURT AND NECESSARY TO ITS DECISION; IN IGNORING SOME OF
THE COLLATERAL POINTS, I DO NOT MEAN TO IMPLY AGREEMENT. 

FN2  THE CASE WAS BRAM V. UNITED STATES, 168 U.S. 532 (QUOTED, ANTE,
P. 461).  ITS HISTORICAL PREMISES WERE AFTERWARDS DISPROVED BY WIGMORE,
WHO CONCLUDED "THAT NO ASSERTIONS COULD BE MORE UNFOUNDED."  3 WIGMORE,
EVIDENCE SEC. 823, AT 250, N. 5 (3D ED. 1940).  THE COURT IN UNITED
STATES V. CARIGNAN, 342 U.S. 36, 41, DECLINED TO CHOOSE BETWEEN BRAM
AND WIGMORE, AND STEIN V. NEW YORK, 346 U.S. 156, 191, N. 35, CAST
FURTHER DOUBT ON BRAM.  THERE ARE, HOWEVER, SEVERAL COURT OPINIONS
WHICH ASSUME IN DICTA THE RELEVANCE OF THE FIFTH AMENDMENT PRIVILEGE TO
CONFESSIONS.  BURDEAU V. MCDOWELL, 256 U.S 465, 475; SEE SHOTWELL MFG.
CO. V. UNITED STATES, 371 U.S. 341, 347.  ON BRAM AND THE FEDERAL
CONFESSION CASES GENERALLY, SEE DEVELOPMENTS IN THE LAW - CONFESSIONS,
79 HARV. L. REV. 935, 959-961 (1966).    FN3  COMMENT, 31 U. CHI.  L.
REV. 313 & N. 1 (1964), STATES THAT BY THE 1963 TERM 33 STATE COERCED
CONFESSION CASES HAD BEEN DECIDED BY THIS COURT, APART FROM PER
CURIAMS.  SPANO V. NEW YORK, 360 U.S. 315, 321, N. 2, COLLECTS 28
CASES. 

FN4  BATOR & VORENBERG, ARREST, DETENTION, INTERROGATION AND THE
RIGHT TO COUNSEL, 66 COL. L. REV. 62, 73 (1966):  "IN FACT, THE CONCEPT
OF INVOLUNTARINESS SEEMS TO BE USED BY THE COURTS AS A SHORTHAND TO
REFER TO PRACTICES WHICH ARE REPELLENT TO CIVILIZED STANDARDS OF
DECENCY OR WHICH, UNDER THE CIRCUMSTANCES, ARE THOUGHT TO APPLY A
DEGREE OF PRESSURE TO AN INDIVIDUAL WHICH UNFAIRLY IMPAIRS HIS CAPACITY
TO MAKE A RATIONAL CHOICE."  SEE HERMAN, THE SUPREME COURT AND
RESTRICTIONS ON POLICE INTERROGATION, 25 OHIO ST. L.J. 449, 452-458
(1964); DEVELOPMENTS, SUPRA, N. 2, AT 964-984. 

FN5  SEE THE CASES SYNOPSIZED IN HERMAN, SUPRA, N. 4, AT 456, NN. 36
39.  ONE NOT TOO DISTANT EXAMPLE IS STROBLE V. CALIFORNIA, 343 U.S.
181, IN WHICH THE SUSPECT WAS KICKED AND THREATENED AFTER HIS ARREST,
QUESTIONED A LITTLE LATER FOR TWO HOURS, AND ISOLATED FROM A LAWYER
TRYING TO SEE HIM; THE RESULTING CONFESSION WAS HELD ADMISSIBLE. 

FN6  AMONG THE EXAMPLES GIVEN IN 8 WIGMORE, EVIDENCE SEC. 2266, AT
401 (MCNAUGHTON REV.  1961), ARE THESE:  THE PRIVILEGE APPLIES TO ANY
WITNESS, CIVIL OR CRIMINAL, BUT THE CONFESSION RULE PROTECTS ONLY
CRIMINAL DEFENDANTS; THE PRIVILEGE DEALS ONLY WITH COMPULSION, WHILE
THE CONFESSION RULE MAY EXCLUDE STATEMENTS OBTAINED BY TRICK OR
PROMISE; AND WHERE THE PRIVILEGE HAS BEEN NULLIFIED - AS BY THE ENGLISH
BANKRUPTCY ACT - THE CONFESSION RULE MAY STILL OPERATE. 

FN7  ADDITIONALLY, THERE ARE PRECEDENTS AND EVEN HISTORICAL ARGUMENTS
THAT CAN BE ARRAYED IN FAVOR OF BRINGING EXTRA-LEGAL QUESTIONING WITHIN
THE PRIVILEGE.  SEE GENERALLY MAGUIRE, EVIDENCE OF GUILT SEC. 2.03, AT
15-16 (1959). 

FN8  THIS, OF COURSE, IS IMPLICIT IN THE COURT'S INTRODUCTORY
ANNOUNCEMENT THAT "OUR DECISION IN MALLOY V. HOGAN, 378 U.S. 1 (1964)
EXTENDING THE FIFTH AMENDMENT PRIVILEGES TO THE STATES NECESSITATES AN
EXAMINATION OF THE SCOPE OF THE PRIVILEGE IN STATE CASES AS WELL." 
ANTE, P. 463.  IT IS ALSO INCONSISTENT WITH MALLOY ITSELF, IN WHICH
EXTENSION OF THE FIFTH AMENDMENT TO THE STATES RESTED IN PART ON THE
VIEW THAT THE DUE PROCESS CLAUSE RESTRICTION ON STATE CONFESSIONS HAS
IN RECENT YEARS BEEN "THE SAME STANDARD" AS THAT IMPOSED IN FEDERAL
PROSECUTIONS ASSERTEDLY BY THE FIFTH AMENDMENT.  378 U.S., AT 7. 

FN9  I LAY ASIDE ESCOBEDO ITSELF; IT CONTAINS NO REASONING OR EVEN
GENERAL CONCLUSIONS ADDRESSED TO THE FIFTH AMENDMENT AND INDEED ITS
CITATION IN THIS REGARD SEEMS SURPRISING IN VIEW OF ESCOBEDO'S PRIMARY
RELIANCE ON THE SIXTH AMENDMENT. 

FN10  SINCE THE COURT CONSPICUOUSLY DOES NOT ASSERT THAT THE SIXTH
AMENDMENT ITSELF WARRANTS ITS NEW POLICE-INTERROGATION RULES, THERE IS
NO REASON NOW TO DRAW OUT THE EXTREMELY POWERFUL HISTORICAL AND
PRECEDENTIAL EVIDENCE THAT THE AMENDMENT WILL BEAR NO SUCH MEANING. 
SEE GENERALLY FRIENDLY, THE BILL OF RIGHTS AS A CODE OF CRIMINAL
PROCEDURE, 53 CALIF. L. REV. 929, 943-948 (1965). 

FN11  SEE SUPRA, N. 4, AND TEXT.  OF COURSE, THE USE OF TERMS LIKE
VOLUNTARINESS INVOLVES QUESTIONS OF LAW AND TERMINOLOGY QUITE AS MUCH
AS QUESTIONS OF FACT.  SEE COLLINS V. BETO, 348 F.2D 823, 832
(CONCURRING OPINION); BATOR & VORENBERG, SUPRA, N. 4, AT 72-73. 

FN12  THE COURT'S VISION OF A LAWYER "MITIGATING THE DANGERS OF
UNTRUSTWORTHINESS" (ANTE, P. 470) BY WITNESSING COERCION AND ASSISTING
ACCURACY IN THE CONFESSION IS LARGELY A FANCY; FOR IF COUNSEL ARRIVES,
THERE IS RARELY GOING TO BE A POLICE STATION CONFESSION.  WATTS V.
INDIANA, 338 U.S. 49, 59 (SEPARATE OPINION OF JACKSON, J.):  "ANY
LAWYER WORTH HIS SALT WILL TELL THE SUSPECT IN NO UNCERTAIN TERMS TO
MAKE NO STATEMENT TO POLICE UNDER ANY CIRCUMSTANCES."  SEE ENKER &
ELSEN, COUNSEL FOR THE SUSPECT, 49 MINN. L. REV. 47, 66-68 (1964). 

FN13  THIS NEED IS, OF COURSE, WHAT MAKES SO MISLEADING THE COURT'S
COMPARISON OF A PROBATE JUDGE READILY SETTING ASIDE AS INVOLUNTARY THE
WILL OF AN OLD LADY BADGERED AND BELEAGURED BY THE NEW HEIRS.  ANTE,
PP. 457-458, N. 26.  WITH WILLS, THERE IS NO PUBLIC INTEREST SAVE IN A
TOTALLY FREE CHOICE; WITH CONFESSIONS, THE SOLUTION OF CRIME IS A
COUNTERVAILING GAIN, HOWEVER THE BALANCE IS RESOLVED. 

FN14  SEE, E.G., THE VOLUMINOUS CITATIONS TO CONGRESSIONAL COMMITTEE
TESTIMONY AND OTHER SOURCES COLLECTED IN CULOMBE V. CONNECTICUT, 367
U.S. 568, 578-579 (FRANKFURTER, J., ANNOUNCING THE COURT'S JUDGMENT AND
AN OPINION). 

FN15  IN WESTOVER, A SEASONED CRIMINAL WAS PRACTICALLY GIVEN THE
COURT'S FULL COMPLEMENT OF WARNINGS AND DID NOT HEED THEM.  THE STEWART
CASE, ON THE OTHER HAND, INVOLVES LONG DETENTION AND SUCCESSIVE
QUESTIONING.  IN VIGNERA, THE FACTS ARE COMPLICATED AND THE RECORD
SOMEWHAT INCOMPLETE. 

FN16  "JUSTICE, THOUGH DUE TO THE ACCUSED, IS DUE TO THE ACCUSER
ALSO.  THE CONCEPT OF FAIRNESS MUST NOT BE STRAINED TILL IT IS NARROWED
TO A FILAMENT.  WE ARE TO KEEP THE BALANCE TRUE."  SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 122 (CARDOZO, J.). 

FN17  A NARROW READING IS GIVEN IN:  UNITED STATES V. ROBINSON, 354
F.2D 109 (C.A.2D CIR.); DAVIS V. NORTH CAROLINA, 339 F.2D 770 (C.A. 4TH
CIR.); EDWARDS V. HOLMAN, 342 F.2D 679 (C.A. 5TH CIR.); UNITED STATES
EX REL. TOWNSEND V. OGILVIE, 334 F.2D 837 (C.A. 7TH CIR.); PEOPLE V.
HARTGRAVES, 31 ILL. 2D 375, 202 N.E.2D 33; STATE V. FOX, - IOWA - , 131
N.W.2D 684; ROWE V. COMMONWEALTH, 394 S.W.2D 761 (KY.); PARKER V.
WARDEN, 236 MD. 236, 203 A.2D 418; STATE V. HOWARD, 383 S.W.2D 701
(MO.); BEAN V. STATE, - NEV. - , 398 P.2D 251; STATE V. HODGSON, 44
N.J. 151, 207 A.2D 542; PEOPLE V. GUNNER, 15 N.Y.2D 226, 205 N.E.2D
852; COMMONWEALTH EX REL. LINDE V. MARONEY, 416 PA. 331, 206 A.2D 288;
BROWNE V. STATE, 24 WIS. 2D 491, 131 N.W.2D 169. 

AN AMPLE READING IS GIVEN IN:  UNITED STATES EX REL. RUSSO V. NEW
JERSEY, 351 F.2D 429 (C.A. 3D CIR.); WRIGHT V. DICKSON, 336 F.2D 878
(C.A. 9TH CIR.); PEOPLE V. DORADO, 62 CAL.  2D 338, 398 P.2D 361; STATE
V. DUFOUR, - R.I. - , 206 A.2D 82; STATE V. NEELY, 239 ORE.  487, 395
P.2D 557, MODIFIED, 398 P.2D 482. 

THE CASES IN BOTH CATEGORIES ARE THOSE READILY AVAILABLE; THERE ARE
CERTAINLY MANY OTHERS. 

FN18  FOR INSTANCE, COMPARE THE REQUIREMENTS OF THE CATALYTIC CASE OF
PEOPLE V. DORADO, 62 CAL. 2D 338, 398 P.2D 361, WITH THOSE LAID DOWN
TODAY.  SEE ALSO TRAYNOR, THE DEVILS OF DUE PROCESS IN CRIMINAL
DETECTION, DETENTION, AND TRIAL, 33 U. CHI.  L. REV. 657, 670. 

FN19  THE COURT'S OBITER DICTUM NOTWITHSTANDING, ANTE, P. 486, THERE
IS SOME BASIS FOR BELIEVING THAT THE STAPLE OF FBI CRIMINAL WORK
DIFFERS IMPORTANTLY FROM MUCH CRIME WITHIN THE KEN OF LOCAL POLICE. 
THE SKILL AND RESOURCES OF THE FBI MAY ALSO BE UNUSUAL. 

FN20  FOR CITATIONS AND DISCUSSION COVERING EACH OF THESE POINTS, SEE
DEVELOPMENTS, SUPRA, N. 2, AT 1091-1097, AND ENKER & ELSEN, SUPRA, N.
12, AT 80 & N. 94. 

FN21  ON COMMENT, SEE HARDIN, OTHER ANSWERS:  SEARCH AND SEIZURE,
COERCED CONFESSION, AND CRIMINAL TRIAL IN SCOTLAND, 113 U. PA. L. REV.
165, 181 AND NN. 96-97 (1964).  OTHER EXAMPLES ARE LESS STRINGENT
SEARCH AND SEIZURE RULES AND NO AUTOMATIC EXCLUSION FOR VIOLATION OF
THEM, ID., AT 167-169; GUILT BASED ON MAJORITY JURY VERDICTS, ID., AT
185; AND PRE-TRIAL DISCOVERY OF EVIDENCE ON BOTH SIDES, ID., AT 175. 

FN22  OF PARTICULAR RELEVANCE IS THE ALI'S DRAFTING OF A MODEL CODE
OF PRE-ARRAIGNMENT PROCEDURE, NOW IN ITS FIRST TENTATIVE DRAFT.  WHILE
THE ABA AND NATIONAL COMMISSION STUDIES HAVE WIDER SCOPE, THE FORMER IS
LENDING ITS ADVICE TO THE ALI PROJECT AND THE EXECUTIVE DIRECTOR OF THE
LATTER IS ONE OF THE REPORTERS FOR THE MODEL CODE. 

FN23  SEE BRIEF FOR THE UNITED STATES IN WESTOVER, P. 45.  THE N.Y.
TIMES, JUNE 3, 1966, P. 41 (LATE CITY ED.)  REPORTED THAT THE FORD
FOUNDATION HAS AWARDED $1,100,000 FOR A FIVE-YEAR STUDY OF ARRESTS AND
CONFESSIONS IN NEW YORK. 

FN24  THE NEW YORK ASSEMBLY RECENTLY PASSED A BILL TO REQUIRE CERTAIN
WARNINGS BEFORE AN ADMISSIBLE CONFESSION IS TAKEN, THOUGH THE RULES ARE
LESS STRICT THAN ARE THE COURT'S.  N.Y.  TIMES, MAY 24, 1966, P. 35
(LATE CITY ED.). 

FN25  THE COURT WAITED 12 YEARS AFTER WOLF V. COLORADO, 338 U.S. 25,
DECLARED PRIVACY AGAINST IMPROPER STATE INTRUSIONS TO BE
CONSTITUTIONALLY SAFEGUARDED BEFORE IT CONCLUDED IN MAPP V. OHIO, 367
U.S. 643, THAT ADEQUATE STATE REMEDIES HAD NOT BEEN PROVIDED TO PROTECT
THIS INTEREST SO THE EXCLUSIONARY RULE WAS NECESSARY. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

     I. 

THE PROPOSITION THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION FORBIDS
IN-CUSTODY INTERROGATION WITHOUT THE WARNINGS SPECIFIED IN THE MAJORITY
OPINION AND WITHOUT A CLEAR WAIVER OF COUNSEL HAS NO SIGNIFICANT
SUPPORT IN THE HISTORY OF THE PRIVILEGE OR IN THE LANGUAGE OF THE FIFTH
AMENDMENT.  AS FOR THE ENGLISH AUTHORITIES AND THE COMMON-LAW HISTORY,
THE PRIVILEGE, FIRMLY ESTABLISHED IN THE SECOND HALF OF THE SEVENTEENTH
CENTURY, WAS NEVER APPLIED EXCEPT TO PROHIBIT COMPELLED JUDICIAL
INTERROGATIONS.  THE RULE EXCLUDING COERCED CONFESSIONS MATURED ABOUT
100 YEARS LATER, "BUT THERE IS NOTHING IN THE REPORTS TO SUGGEST THAT
THE THEORY HAS ITS ROOTS IN THE PRIVILEGE AGAINST SELF-INCRIMINATION. 
AND SO FAR AS THE CASES REVEAL, THE PRIVILEGE, AS SUCH, SEEMS TO HAVE
BEEN GIVEN EFFECT ONLY IN JUDICIAL PROCEEDINGS, INCLUDING THE
PRELIMINARY EXAMINATIONS BY AUTHORIZED MAGISTRATES."  MORGAN, THE
PRIVILEGE AGAINST SELF-INCRIMINATION, 34 MINN. L. REV. 1, 18 (1949). 

OUR OWN CONSTITUTIONAL PROVISION PROVIDES THAT NO PERSON "SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  THESE
WORDS, WHEN "CONSIDERED IN THE LIGHT TO BE SHED BY GRAMMAR AND THE
DICTIONARY  ...  APPEAR TO SIGNIFY SIMPLY THAT NOBODY SHALL BE
COMPELLED TO GIVE ORAL TESTIMONY AGAINST HIMSELF IN A CRIMINAL
PROCEEDING UNDER WAY IN WHICH HE IS DEFENDANT."  CORWIN, THE SUPREME
COURT'S CONSTRUCTION OF THE SELF-INCRIMINATION CLAUSE, 29 MICH. L. REV.
1, 2.  AND THERE IS VERY LITTLE IN THE SURROUNDING CIRCUMSTANCES OF THE
ADOPTION OF THE FIFTH AMENDMENT OR IN THE PROVISIONS OF THE THEN
EXISTING STATE CONSTITUTIONS OR IN STATE PRACTICE WHICH WOULD GIVE THE
CONSTITUTIONAL PROVISION ANY BROADER MEANING.  MAYERS, THE FEDERAL
WITNESS' PRIVILEGE AGAINST SELF-INCRIMINATION:  CONSTITUTIONAL OR
COMMON-LAW?  4 AMERICAN JOURNAL OF LEGAL HISTORY 107 (1960).  SUCH A
CONSTRUCTION, HOWEVER, WAS CONSIDERABLY NARROWER THAN THE PRIVILEGE AT
COMMON LAW, AND WHEN EVENTUALLY FACED WITH THE ISSUES, THE COURT
EXTENDED THE CONSTITUTIONAL PRIVILEGE TO THE COMPULSORY PRODUCTION OF
BOOKS AND PAPERS, TO THE ORDINARY WITNESS BEFORE THE GRAND JURY AND TO
WITNESSES GENERALLY.  BOYD V. UNITED STATES, 116 U.S. 616, AND
COUNSELMAN V. HITCHCOCK, 142 U.S. 547.  BOTH RULES HAD SOLID SUPPORT IN
COMMON-LAW HISTORY, IF NOT IN THE HISTORY OF OUR OWN CONSTITUTIONAL
PROVISION. 

A FEW YEARS LATER THE FIFTH AMENDMENT PRIVILEGE WAS SIMILARLY
EXTENDED TO ENCOMPASS THE THEN WELL-ESTABLISHED RULE AGAINST COERCED
CONFESSIONS:  "IN CRIMINAL TRIALS, IN THE COURTS OF THE UNITED STATES,
WHEREVER A QUESTION ARISES WHETHER A CONFESSION IS INCOMPETENT BECAUSE
NOT VOLUNTARY, THE ISSUE IS CONTROLLED BY THAT PORTION OF THE FIFTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, COMMANDING THAT NO
PERSON 'SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF.'  "  BRAM V. UNITED STATES, 168 U.S. 532, 542.  ALTHOUGH THIS
VIEW HAS FOUND APPROVAL IN OTHER CASES, BURDEAU V. MCDOWELL, 256 U.S.
465, 475; POWERS V. UNITED STATES, 223 U.S. 303, 313; SHOTWELL V.
UNITED STATES, 371 U.S. 341, 347, IT HAS ALSO BEEN QUESTIONED, SEE
BROWN V. MISSISSIPPI, 297 U.S. 278, 285; UNITED STATES V. CARIGNAN, 342
U.S. 36, 41; STEIN V. NEW YORK, 346 U.S. 156, 191, N. 35, AND FINDS
SCANT SUPPORT IN EITHER THE ENGLISH OR AMERICAN AUTHORITIES, SEE
GENERALLY REGINA V. SCOTT, DEARS.  & BELL 47; 3 WIGMORE, EVIDENCE SEC.
823 (3D ED. 1940), AT 249 ("A CONFESSION IS NOT REJECTED BECAUSE OF ANY
CONNECTION WITH THE PRIVILEGE AGAINST SELF-INCRIMINATION"), AND 250, N.
5 (PARTICULARLY CRITICIZING BRAM); 8 WIGMORE, EVIDENCE SEC. 2266, AT
400-401 (MCNAUGHTON REV. 1961).  WHATEVER THE SOURCE OF THE RULE
EXCLUDING COERCED CONFESSIONS, IT IS CLEAR THAT PRIOR TO THE
APPLICATION OF THE PRIVILEGE ITSELF TO STATE COURTS, MALLOY V. HOGAN,
378 U.S. 1, THE ADMISSIBILITY OF A CONFESSION IN A STATE CRIMINAL
PROSECUTION WAS TESTED BY THE SAME STANDARDS AS WERE APPLIED IN FEDERAL
PROSECUTIONS.  ID., AT 6-7, 10. 

BRAM, HOWEVER, ITSELF REJECTED THE PROPOSITION WHICH THE COURT NOW
ESPOUSES.  THE QUESTION IN BRAM WAS WHETHER A CONFESSION, OBTAINED
DURING CUSTODIAL INTERROGATION, HAD BEEN COMPELLED, AND IF SUCH
INTERROGATION WAS TO BE DEEMED INHERENTLY VULNERABLE THE COURT'S
INQUIRY COULD HAVE ENDED THERE.  AFTER EXAMINING THE ENGLISH AND
AMERICAN AUTHORITIES, HOWEVER, THE COURT DECLARED THAT: 

"IN THIS COURT ALSO IT HAS BEEN SETTLED THAT THE MERE FACT THAT THE
CONFESSION IS MADE TO A POLICE OFFICER, WHILE THE ACCUSED WAS UNDER
ARREST IN OR OUT OF PRISON, OR WAS DRAWN OUT BY HIS QUESTIONS, DOES NOT
NECESSARILY RENDER THE CONFESSION INVOLUNTARY, BUT, AS ONE OF THE
CIRCUMSTANCES, SUCH IMPRISONMENT OR INTERROGATION MAY BE TAKEN INTO
ACCOUNT IN DETERMINING WHETHER OR NOT THE STATEMENTS OF THE PRISONER
WERE VOLUNTARY."  168 U.S., AT 558. 

IN THIS RESPECT THE COURT WAS WHOLLY CONSISTENT WITH PRIOR AND
SUBSEQUENT PRONOUNCEMENTS IN THIS COURT. 

THUS PRIOR TO BRAM THE COURT, IN HOPT V. UTAH, 110 U.S. 574, 583-587,
HAD UPHELD THE ADMISSIBILITY OF A CONFESSION MADE TO POLICE OFFICERS
FOLLOWING ARREST, THE RECORD BEING SILENT CONCERNING WHAT CONVERSATION
HAD OCCURRED BETWEEN THE OFFICERS AND THE DEFENDANT IN THE SHORT PERIOD
PRECEDING THE CONFESSION.  RELYING ON HOPT, THE COURT RULED SQUARELY ON
THE ISSUE IN SPARF AND HANSEN V. UNITED STATES, 156 U.S. 51, 55: 
"COUNSEL FOR THE ACCUSED INSIST THAT THERE CANNOT BE A VOLUNTARY
STATEMENT, A FREE OPEN CONFESSION, WHILE A DEFENDANT IS CONFINED AND IN
IRONS UNDER AN ACCUSATION OF HAVING COMMITTED A CAPITAL OFFENCE.  WE
HAVE NOT BEEN REFERRED TO ANY AUTHORITY IN SUPPORT OF THAT POSITION. 
IT IS TRUE THAT THE FACT OF A PRISONER BEING IN CUSTODY AT THE TIME HE
MAKES A CONFESSION IS A CIRCUMSTANCE NOT TO BE OVERLOOKED, BECAUSE IT
BEARS UPON THE INQUIRY WHETHER THE CONFESSION WAS VOLUNTARILY MADE OR
WAS EXTORTED BY THREATS OR VIOLENCE OR MADE UNDER THE INFLUENCE OF
FEAR.  BUT CONFINEMENT OR IMPRISONMENT IS NOT IN ITSELF SUFFICIENT TO
JUSTIFY THE EXCLUSION OF A CONFESSION, IF IT APPEARS TO HAVE BEEN
VOLUNTARY, AND WAS NOT OBTAINED BY PUTTING THE PRISONER IN FEAR OR BY
PROMISES.  WHARTON'S CR. EV. 9TH ED. SECS. 661, 663, AND AUTHORITIES
CITED." 

ACCORD, PIERCE V. UNITED STATES, 160 U.S. 355, 357. 

AND IN WILSON V. UNITED STATES, 162 U.S. 613, 623, THE COURT HAD
CONSIDERED THE SIGNIFICANCE OF CUSTODIAL INTERROGATION WITHOUT ANY
ANTECEDENT WARNINGS REGARDING THE RIGHT TO REMAIN SILENT OR THE RIGHT
TO COUNSEL.  THERE THE DEFENDANT HAD ANSWERED QUESTIONS POSED BY A
COMMISSIONER, WHO HAD FAILED TO ADVISE HIM OF HIS RIGHTS, AND HIS
ANSWERS WERE HELD ADMISSIBLE OVER HIS CLAIM OF INVOLUNTARINESS.  "THE
FACT THAT A DEFENDANT IS IN CUSTODY AND MANACLED DOES NOT NECESSARILY
RENDER HIS STATEMENT INVOLUNTARY, NOR IS THAT NECESSARILY THE EFFECT OF
POPULAR EXCITEMENT SHORTLY PRECEDING  ...  .  AND IT IS LAID DOWN THAT
IT IS NOT ESSENTIAL TO THE ADMISSIBILITY OF A CONFESSION THAT IT SHOULD
APPEAR THAT THE PERSON WAS WARNED THAT WHAT HE SAID WOULD BE USED
AGAINST HIM, BUT ON THE CONTRARY, IF THE CONFESSION WAS VOLUNTARY, IT
IS SUFFICIENT THOUGH IT APPEAR THAT HE WAS NOT SO WARNED." 

SINCE BRAM, THE ADMISSIBILITY OF STATEMENTS MADE DURING CUSTODIAL
INTERROGATION HAS BEEN FREQUENTLY REITERATED.  POWERS V. UNITED STATES,
223 U.S. 303, CITED WILSON APPROVINGLY AND HELD ADMISSIBLE AS VOLUNTARY
STATEMENTS THE ACCUSED'S TESTIMONY AT A PRELIMINARY HEARING EVEN THOUGH
HE WAS NOT WARNED THAT WHAT HE SAID MIGHT BE USED AGAINST HIM.  WITHOUT
ANY DISCUSSION OF THE PRESENCE OR ABSENCE OF WARNINGS, PRESUMABLY
BECAUSE SUCH DISCUSSION WAS DEEMED UNNECESSARY, NUMEROUS OTHER CASES
HAVE DECLARED THAT "THE MERE FACT THAT A CONFESSION WAS MADE WHILE IN
THE CUSTODY OF THE POLICE DOES NOT RENDER IT INADMISSIBLE,"  MCNABB V.
UNITED STATES, 318 U.S. 332, 346; ACCORD, UNITED STATES V. MITCHELL,
322 U.S. 65, DESPITE ITS HAVING BEEN ELICITED BY POLICE EXAMINATION,
WAN V. UNITED STATES, 266 U.S. 1, 14; UNITED STATES V. CARIGNAN, 342
U.S. 36, 39.  LIKEWISE, IN CROOKER V. CALIFORNIA, 357 U.S. 433, 437,
THE COURT SAID THAT "THE BARE FACT OF POLICE 'DETENTION AND POLICE
EXAMINATION IN PRIVATE OF ONE IN OFFICIAL STATE CUSTODY' DOES NOT
RENDER INVOLUNTARY A CONFESSION BY THE ONE SO DETAINED."  AND FINALLY,
IN CICENIA V. LAGAY, 357 U.S. 504, A CONFESSION OBTAINED BY POLICE
INTERROGATION AFTER ARREST WAS HELD VOLUNTARY EVEN THOUGH THE
AUTHORITIES REFUSED TO PERMIT THE DEFENDANT TO CONSULT WITH HIS
ATTORNEY.  SEE GENERALLY CULOMBE V. CONNECTICUT, 367 U.S. 568, 587-602
(OPINION OF FRANKFURTER, J.); 3 WIGMORE, EVIDENCE SEC. 851, AT 313 (3D
ED. 1940); SEE ALSO JOY, ADMISSIBILITY OF CONFESSIONS 38, 46 (1842). 

ONLY A TINY MINORITY OF OUR JUDGES WHO HAVE DEALT WITH THE QUESTION,
INCLUDING TODAY'S MAJORITY, HAVE CONSIDERED IN-CUSTODY INTERROGATION,
WITHOUT MORE, TO BE A VIOLATION OF THE FIFTH AMENDMENT.  AND THIS
COURT, AS EVERY MEMBER KNOWS, HAS LEFT STANDING LITERALLY THOUSANDS OF
CRIMINAL CONVICTIONS THAT RESTED AT LEAST IN PART ON CONFESSIONS TAKEN
IN THE COURSE OF INTERROGATION BY THE POLICE AFTER ARREST. 

                                     II. 

THAT THE COURT'S HOLDING TODAY IS NEITHER COMPELLED NOR EVEN STRONGLY
SUGGESTED BY THE LANGUAGE OF THE FIFTH AMENDMENT, IS AT ODDS WITH
AMERICAN AND ENGLISH LEGAL HISTORY, AND INVOLVES A DEPARTURE FROM A
LONG LINE OF PRECEDENT DOES NOT PROVE EITHER THAT THE COURT HAS
EXCEEDED ITS POWERS OR THAT THE COURT IS WRONG OR UNWISE IN ITS PRESENT
REINTERPRETATION OF THE FIFTH AMENDMENT.  IT DOES, HOWEVER, UNDERSCORE
THE OBVIOUS - THAT THE COURT HAS NOT DISCOVERED OR FOUND THE LAW IN
MAKING TODAY'S DECISION, NOR HAS IT DERIVED IT FROM SOME IRREFUTABLE
SOURCES; WHAT IT HAS DONE IS TO MAKE NEW LAW AND NEW PUBLIC POLICY IN
MUCH THE SAME WAY THAT IT HAS IN THE COURSE OF INTERPRETING OTHER GREAT
CLAUSES OF THE CONSTITUTION.  (FN1)  THIS IS WHAT THE COURT
HISTORICALLY HAS DONE.  INDEED, IT IS WHAT IT MUST DO AND WILL CONTINUE
TO DO UNTIL AND UNLESS THERE IS SOME FUNDAMENTAL CHANGE IN THE
CONSTITUTIONAL DISTRIBUTION OF GOVERNMENTAL POWERS. 

BUT IF THE COURT IS HERE AND NOW TO ANNOUNCE NEW AND FUNDAMENTAL
POLICY TO GOVERN CERTAIN ASPECTS OF OUR AFFAIRS, IT IS WHOLLY
LEGITIMATE TO EXAMINE THE MODE OF THIS OR ANY OTHER CONSTITUTIONAL
DECISION IN THIS COURT AND TO INQUIRE INTO THE ADVISABILITY OF ITS END
PRODUCT IN TERMS OF THE LONG-RANGE INTEREST OF THE COUNTRY.  AT THE
VERY LEAST THE COURT'S TEXT AND REASONING SHOULD WITHSTAND ANALYSIS AND
BE A FAIR EXPOSITION OF THE CONSTITUTIONAL PROVISION WHICH ITS OPINION
INTERPRETS.  DECISIONS LIKE THESE CANNOT REST ALONE ON SYLLOGISM,
METAPHYSICS OR SOME ILL-DEFINED NOTIONS OF NATURAL JUSTICE, ALTHOUGH
EACH WILL PERHAPS PLAY ITS PART.  IN PROCEEDING TO SUCH CONSTRUCTIONS
AS IT NOW ANNOUNCES, THE COURT SHOULD ALSO DULY CONSIDER ALL THE
FACTORS AND INTERESTS BEARING UPON THE CASES, AT LEAST INSOFAR AS THE
RELEVANT MATERIALS ARE AVAILABLE; AND IF THE NECESSARY CONSIDERATIONS
ARE NOT TREATED IN THE RECORD OR OBTAINABLE FROM SOME OTHER RELIABLE
SOURCE, THE COURT SHOULD NOT PROCEED TO FORMULATE FUNDAMENTAL POLICIES
BASED ON SPECULATION ALONE. 

      III. 

FIRST, WE MAY INQUIRE WHAT ARE THE TEXTUAL AND FACTUAL BASES OF THIS
NEW FUNDAMENTAL RULE.  TO REACH THE RESULT ANNOUNCED ON THE GROUNDS IT
DOES, THE COURT MUST STAY WITHIN THE CONFINES OF THE FIFTH AMENDMENT,
WHICH FORBIDS SELF-INCRIMINATION ONLY IF COMPELLED.  HENCE THE CORE OF
THE COURT'S OPINION IS THAT BECAUSE OF THE "COMPULSION INHERENT IN
CUSTODIAL SURROUNDINGS, NO STATEMENT OBTAINED FROM A DEFENDANT IN
CUSTODY CAN TRULY BE THE PRODUCT OF HIS FREE CHOICE," ANTE, AT 458,
ABSENT THE USE OF ADEQUATE PROTECTIVE DEVICES AS DESCRIBED BY THE
COURT.  HOWEVER, THE COURT DOES NOT POINT TO ANY SUDDEN INRUSH OF NEW
KNOWLEDGE REQUIRING THE REJECTION OF 70 YEARS' EXPERIENCE.  NOR DOES IT
ASSERT THAT ITS NOVEL CONCLUSION REFLECTS A CHANGING CONSENSUS AMONG
STATE COURTS, SEE MAPP V. OHIO, 367 U.S. 643, OR THAT A SUCCESSION OF
CASES HAD STEADILY ERODED THE OLD RULE AND PROVED IT UNWORKABLE, SEE
GIDEON V. WAINWRIGHT, 372 U.S. 335.  RATHER THAN ASSERTING NEW
KNOWLEDGE, THE COURT CONCEDES THAT IT CANNOT TRULY KNOW WHAT OCCURS
DURING CUSTODIAL QUESTIONING, BECAUSE OF THE INNATE SECRECY OF SUCH
PROCEEDINGS.  IT EXTRAPOLATES A PICTURE OF WHAT IT CONCEIVES TO BE THE
NORM FROM POLICE INVESTIGATORIAL MANUALS, PUBLISHED IN 1959 AND 1962 OR
EARLIER, WITHOUT ANY ATTEMPT TO ALLOW FOR ADJUSTMENTS IN POLICE
PRACTICES THAT MAY HAVE OCCURRED IN THE WAKE OF MORE RECENT DECISIONS
OF STATE APPELLATE TRIBUNALS OR THIS COURT.  BUT EVEN IF THE RELENTLESS
APPLICATION OF THE DESCRIBED PROCEDURES COULD LEAD TO THE INVOLUNTARY
CONFESSIONS, IT MUST ASSUREDLY DOES NOT FOLLOW THAT EACH AND EVERY CASE
WILL DISCLOSE THIS KIND OF INTERROGATION OR THIS KIND OF CONSEQUENCE. 
(FN2)  INSOFAR AS APPEARS FROM THE COURT'S OPINION, IT HAS NOT EXAMINED
A SINGLE TRANSCRIPT OF ANY POLICE INTERROGATION, LET ALONE THE
INTERROGATION THAT TOOK PLACE IN ANY ONE OF THESE CASES WHICH IT
DECIDES TODAY.  JUDGED BY ANY OF THE STANDARDS FOR EMPIRICAL
INVESTIGATION UTILIZED IN THE SOCIAL SCIENCES THE FACTUAL BASIS FOR THE
COURT'S PREMISE IS PATENTLY INADEQUATE. 

ALTHOUGH IN THE COURT'S VIEW IN-CUSTODY INTERROGATION IS INHERENTLY
COERCIVE, THE COURT SAYS THAT THE SPONTANEOUS PRODUCT OF THE COERCION
OF ARREST AND DETENTION IS STILL TO BE DEEMED VOLUNTARY.  AN ACCUSED,
ARRESTED ON PROBABLE CAUSE, MAY BLURT OUT A CONFESSION WHICH WILL BE
ADMISSIBLE DESPITE THE FACT THAT HE IS ALONE AND IN CUSTODY, WITHOUT
ANY SHOWING THAT HE HAD ANY NOTION OF HIS RIGHT TO REMAIN SILENT OR OF
THE CONSEQUENCES OF HIS ADMISSION.  YET, UNDER THE COURT'S RULE, IF THE
POLICE ASK HIM A SINGLE QUESTION SUCH AS "DO YOU HAVE ANYTHING TO
SAY?"  OR "DID YOU KILL YOUR WIFE?"  HIS RESPONSE, IF THERE IS ONE, HAS
SOMEHOW BEEN COMPELLED, EVEN IF THE ACCUSED HAS BEEN CLEARLY WARNED OF
HIS RIGHT TO REMAIN SILENT.  COMMON SENSE INFORMS US TO THE CONTRARY. 
WHILE ONE MAY SAY THAT THE RESPONSE WAS "INVOLUNTARY" IN THE SENSE THE
QUESTION PROVOKED OR WAS THE OCCASION FOR THE RESPONSE AND THUS THE
DEFENDANT WAS INDUCED TO SPEAK OUT WHEN HE MIGHT HAVE REMAINED SILENT
IF NOT ARRESTED AND NOT QUESTIONED, IT IS PATENTLY UNSOUND TO SAY THE
RESPONSE IS COMPELLED. 

TODAY'S RESULT WOULD NOT FOLLOW EVEN IF IT WERE AGREED THAT TO SOME
EXTENT CUSTODIAL INTERROGATION IS INHERENTLY COERCIVE.  SEE ASHCRAFT V.
TENNESSEE, 322 U.S. 143, 161 (JACKSON, J., DISSENTING).  THE TEST HAS
BEEN WHETHER THE TOTALITY OF CIRCUMSTANCES DEPRIVED THE DEFENDANT OF A
"FREE CHOICE TO ADMIT, TO DENY, OR TO REFUSE TO ANSWER," LISENBA V.
CALIFORNIA, 314 U.S. 219, 241, AND WHETHER PHYSICAL OR PSYCHOLOGICAL
COERCION WAS OF SUCH A DEGREE THAT "THE DEFENDANT'S WILL WAS OVERBORNE
AT THE TIME HE CONFESSED," HAYNES V. WASHINGTON, 373 U.S. 503, 513;
LYNUMN V. ILLINOIS, 372 U.S. 528, 534.  THE DURATION AND NATURE OF
INCOMMUNICADO CUSTODY, THE PRESENCE OR ABSENCE OF ADVICE CONCERNING THE
DEFENDANT'S CONSTITUTIONAL RIGHTS, AND THE GRANTING OR REFUSAL OF
REQUESTS TO COMMUNICATE WITH LAWYERS, RELATIVES OR FRIENDS HAVE ALL
BEEN RIGHTLY REGARDED AS IMPORTANT DATA BEARING ON THE BASIC INQUIRY. 
SEE, E.G., ASHCRAFT V. TENNESSEE, 322 U.S. 143; HAYNES V. WASHINGTON,
373 U.S. 503.  (FN3)  BUT IT HAS NEVER BEEN SUGGESTED, UNTIL TODAY,
THAT SUCH QUESTIONING WAS SO COERCIVE AND ACCUSED PERSONS SO LACKING IN
HARDIHOOD THAT THE VERY FIRST RESPONSE TO THE VERY FIRST QUESTION
FOLLOWING THE COMMENCEMENT OF CUSTODY MUST BE CONCLUSIVELY PRESUMED TO
BE THE PRODUCT OF AN OVERBORNE WILL. 

IF THE RULE ANNOUNCED TODAY WERE TRULY BASED ON A CONCLUSION THAT ALL
CONFESSIONS RESULTING FROM CUSTODIAL INTERROGATION ARE COERCED, THEN IT
WOULD SIMPLY HAVE NO RATIONAL FOUNDATION.  COMPARE TOT V. UNITED
STATES, 319 U.S. 463, 466; UNITED STATES V. ROMANO, 382 U.S. 136.  A
FORTIORI THAT WOULD BE TRUE OF THE EXTENSION OF THE RULE TO EXCULPATORY
STATEMENTS, WHICH THE COURT EFFECTS AFTER A BRIEF DISCUSSION OF WHY, IN
THE COURT'S VIEW, THEY MUST BE DEEMED INCRIMINATORY BUT WITHOUT ANY
DISCUSSION OF WHY THEY MUST BE DEEMED COERCED.  SEE WILSON V. UNITED
STATES, 162 U.S. 613, 624.  EVEN IF ONE WERE TO POSTULATE THAT THE
COURT'S CONCERN IS NOT THAT ALL CONFESSIONS INDUCED BY POLICE
INTERROGATIONS ARE COERCED BUT RATHER THAT SOME SUCH CONFESSIONS ARE
COERCED AND PRESENT JUDICIAL PROCEDURES ARE BELIEVED TO BE INADEQUATE
TO IDENTIFY THE CONFESSIONS THAT ARE COERCED AND THOSE THAT ARE NOT, IT
WOULD STILL NOT BE ESSENTIAL TO IMPOSE THE RULE THAT THE COURT HAS NOW
FASHIONED.  TRANSCRIPTS OR OBSERVERS COULD BE REQUIRED, SPECIFIC TIME
LIMITS, TAILORED TO FIT THE CAUSE, COULD BE IMPOSED, OR OTHER DEVICES
COULD BE UTILIZED TO REDUCE THE CHANCES THAT OTHERWISE INDISCERNIBLE
COERCION WILL PRODUCE AN INADMISSIBLE CONFESSION. 

ON THE OTHER HAND, EVEN IF ONE ASSUMED THAT THERE WAS AN ADEQUATE
FACTUAL BASIS FOR THE CONCLUSION THAT ALL CONFESSIONS OBTAINED DURING
IN-CUSTODY INTERROGATION ARE THE PRODUCT OF COMPULSION, THE RULE
PROPOUNDED BY THE COURT WOULD STILL BE IRRATIONAL, FOR, APPARENTLY, IT
IS ONLY IF THE ACCUSED IS ALSO WARNED OF HIS RIGHT TO COUNSEL AND
WAIVES BOTH THAT RIGHT AND THE RIGHT AGAINST SELF-INCRIMINATION THAT
THE INHERENT COMPULSIVENESS OF INTERROGATION DISAPPEARS.  BUT IF THE
DEFENDANT MAY NOT ANSWER WITHOUT A WARNING A QUESTION SUCH AS "WHERE
WERE YOU LAST NIGHT?"  WITHOUT HAVING HIS ANSWER TO BE A COMPELLED ONE,
HOW CAN THE COURT EVER ACCEPT HIS NEGATIVE ANSWER TO THE QUESTION OF
WHETHER HE WANTS TO CONSULT HIS RETAINED COUNSEL OR COUNSEL WHOM THE
COURT WILL APPOINT?  AND WHY IF COUNSEL IS PRESENT AND THE ACCUSED
NEVERTHELESS CONFESSES, OR COUNSEL TELLS THE ACCUSED TO TELL THE TRUTH,
AND THAT IS WHAT THE ACCUSED DOES, IS THE SITUATION ANY LESS COERCIVE
INSOFAR AS THE ACCUSED IS CONCERNED?  THE COURT APPARENTLY REALIZES ITS
DILEMMA OF FORECLOSING QUESTIONING WITHOUT THE NECESSARY WARNINGS BUT
AT THE SAME TIME PERMITTING THE ACCUSED, SITTING IN THE SAME CHAIR IN
FRONT OF THE SAME POLICEMEN, TO WAIVE HIS RIGHT TO CONSULT AN
ATTORNEY.  IT EXPECTS, HOWEVER, THAT THE ACCUSED WILL NOT OFTEN WAIVE
THE RIGHT; AND IF IT IS CLAIMED THAT HE HAS, THE STATE FACES A SEVERE,
IF NOT IMPOSSIBLE BURDEN OF PROOF. 

ALL OF THIS MAKES VERY LITTLE SENSE IN TERMS OF THE COMPULSION WHICH
THE FIFTH AMENDMENT PROSCRIBES.  THAT AMENDMENT DEALS WITH COMPELLING
THE ACCUSED HIMSELF.  IT IS HIS FREE WILL THAT IS INVOLVED. 
CONFESSIONS AND INCRIMINATING ADMISSIONS, AS SUCH, ARE NOT FORBIDDEN
EVIDENCE; ONLY THOSE WHICH ARE COMPELLED ARE BANNED.  I DOUBT THAT THE
COURT OBSERVES THESE DISTINCTIONS TODAY.  BY CONSIDERING ANY ANSWERS TO
ANY INTERROGATION TO BE COMPELLED REGARDLESS OF THE CONTENT AND COURSE
OF EXAMINATION AND BY ESCALATING THE REQUIREMENTS TO PROVE WAIVER, THE
COURT NOT ONLY PREVENTS THE USE OF COMPELLED CONFESSIONS BUT FOR ALL
PRACTICAL PURPOSES FORBIDS INTERROGATION EXCEPT IN THE PRESENCE OF
COUNSEL.  THAT IS, INSTEAD OF CONFINING ITSELF TO PROTECTION OF THE
RIGHT AGAINST COMPELLED SELF-INCRIMINATION THE COURT HAS CREATED A
LIMITED FIFTH AMENDMENT RIGHT TO COUNSEL - OR, AS THE COURT EXPRESSES
IT, A "NEED FOR COUNSEL TO PROTECT THE FIFTH AMENDMENT PRIVILEGE  ...
."  ANTE, AT 470.  THE FOCUS THEN IS NOT ON THE WILL OF THE ACCUSED BUT
ON THE WILL OF COUNSEL AND HOW MUCH INFLUENCE HE CAN HAVE ON THE
ACCUSED.  OBVIOUSLY THERE IS NO WARRANT IN THE FIFTH AMENDMENT FOR THUS
INSTALLING COUNSEL AS THE ARBITER OF THE PRIVILEGE.    IN SUM, FOR ALL
THE COURT'S EXPOUNDING ON THE MENACING ATMOSPHERE OF POLICE
INTERROGATION PROCEDURES, IT HAS FAILED TO SUPPLY ANY FOUNDATION FOR
THE CONCLUSIONS IT DRAWS OR THE MEASURES IT ADOPTS. 
                   IV. 

CRITICISM OF THE COURT'S OPINION, HOWEVER, CANNOT STOP WITH A
DEMONSTRATION THAT THE FACTUAL AND TEXTUAL BASES FOR THE RULE IT
PROPOUNDS ARE, AT BEST, LESS THAN COMPELLING.  EQUALLY RELEVANT IS AN
ASSESSMENT OF THE RULE'S CONSEQUENCES MEASURED AGAINST COMMUNITY
VALUES.  THE COURT'S DUTY TO ASSESS THE CONSEQUENCES OF ITS ACTION IS
NOT SATISFIED BY THE UTTERANCE OF THE TRUTH THAT A VALUE OF OUR SYSTEM
OF CRIMINAL JUSTICE IS "TO RESPECT THE INVIOLABILITY OF THE HUMAN
PERSONALITY" AND TO REQUIRE GOVERNMENT TO PRODUCE THE EVIDENCE AGAINST
THE ACCUSED BY ITS OWN INDEPENDENT LABORS.  ANTE, AT 460.   MORE THAN
THE HUMAN DIGNITY OF THE ACCUSED IS INVOLVED; THE HUMAN PERSONALITY OF
OTHERS IN THE SOCIETY MUST ALSO BE PRESERVED.  THUS THE VALUES
REFLECTED BY THE PRIVILEGE ARE NOT THE SOLE DESIDERATUM; SOCIETY'S
INTEREST IN THE GENERAL SECURITY IS OF EQUAL WEIGHT. 

THE OBVIOUS UNDERPINNING OF THE COURT'S DECISION IS A DEEP-SEATED
DISTRUST OF ALL CONFESSIONS.  AS THE COURT DECLARES THAT THE ACCUSED
MAY NOT BE INTERROGATED WITHOUT COUNSEL PRESENT, ABSENT A WAIVER OF THE
RIGHT TO COUNSEL, AND AS THE COURT ALL BUT ADMONISHES THE LAWYER TO
ADVISE THE ACCUSED TO REMAIN SILENT, THE RESULT ADDS UP TO A JUDICIAL
JUDGMENT THAT EVIDENCE FROM THE ACCUSED SHOULD NOT BE USED AGAINST HIM
IN ANY WAY, WHETHER COMPELLED OR NOT.  THIS IS THE NOT SO SUBTLE
OVERTONE OF THE OPINION - THAT IT IS INHERENTLY WRONG FOR THE POLICE TO
GATHER EVIDENCE FROM THE ACCUSED HIMSELF.  AND THIS IS PRECISELY THE
NUB OF THIS DISSENT.  I SEE NOTHING WRONG OR IMMORAL, AND CERTAINLY
NOTHING UNCONSTITUTIONAL, IN THE POLICE'S ASKING A SUSPECT WHOM THEY
HAVE REASONABLE CAUSE TO ARREST WHETHER OR NOT HE KILLED HIS WIFE OR IN
CONFRONTING HIM WITH THE EVIDENCE ON WHICH THE ARREST WAS BASED, AT
LEAST WHERE HE HAS BEEN PLAINLY ADVISED THAT HE MAY REMAIN COMPLETELY
SILENT, SEE ESCOBEDO V. ILLINOIS, 378 U.S. 478, 499 (DISSENTING
OPINION).  UNTIL TODAY, "THE ADMISSIONS OR CONFESSIONS OF THE PRISONER,
WHEN VOLUNTARILY AND FREELY MADE, HAVE ALWAYS RANKED HIGH ON THE SCALE
OF INCRIMINATING EVIDENCE."  BROWN V. WALKER, 161 U.S. 591, 596; SEE
ALSO HOPT V. UTAH, 110 U.S. 574, 584-585.  PARTICULARLY WHEN
CORROBORATED, AS WHERE THE POLICE HAVE CONFIRMED THE ACCUSED'S
DISCLOSURE OF THE HIDING PLACE OF THE IMPLEMENTS OR FRUITS OF THE
CRIME, SUCH CONFESSIONS HAVE THE HIGHEST RELIABILITY AND SIGNIFICANTLY
CONTRIBUTE TO THE CERTITUDE WITH WHICH WE MAY BELIEVE THE ACCUSED IS
GUILTY.  MOREOVER, IT IS BY NO MEANS CERTAIN THAT THE PROCESS OF
CONFESSING IS INJURIOUS TO THE ACCUSED.  TO THE CONTRARY IT MAY PROVIDE
PSYCHOLOGICAL RELIEF AND ENHANCE THE PROSPECTS FOR REHABILITATION. 

THIS IS NOT TO SAY THAT THE VALUE OF RESPECT FOR THE INVIOLABILITY OF
THE ACCUSED'S INDIVIDUAL PERSONALITY SHOULD BE ACCORDED NO WEIGHT OR
THAT ALL CONFESSIONS SHOULD BE INDISCRIMINATELY ADMITTED.  THIS COURT
HAS LONG READ THE CONSTITUTION TO PROSCRIBE COMPELLED CONFESSIONS, A
SALUTARY RULE FROM WHICH THERE SHOULD BE NO RETREAT.  BUT I SEE NO
SOUND BASIS, FACTUAL OR OTHERWISE, AND THE COURT GIVES NONE, FOR
CONCLUDING THAT THE PRESENT RULE AGAINST THE RECEIPT OF COERCED
CONFESSIONS IS INADEQUATE FOR THE TASK OF SORTING OUT INADMISSIBLE
EVIDENCE AND MUST BE REPLACED BY THE PER SE RULE WHICH IS NOW IMPOSED. 
EVEN IF THE NEW CONCEPT CAN BE SAID TO HAVE ADVANTAGES OF SOME SORT
OVER THE PRESENT LAW, THEY ARE FAR OUTWEIGHED BY ITS LIKELY UNDESIRABLE
IMPACT ON OTHER VERY RELEVANT AND IMPORTANT INTERESTS. 

THE MOST BASIC FUNCTION OF ANY GOVERNMENT IS TO PROVIDE FOR THE
SECURITY OF THE INDIVIDUAL AND OF HIS PROPERTY.  LANZETTA V. NEW
JERSEY, 306 U.S. 451, 455.  THESE ENDS OF SOCIETY ARE SERVED BY THE
CRIMINAL LAWS WHICH FOR THE MOST PART ARE AIMED AT THE PREVENTION OF
CRIME.  WITHOUT THE REASONABLY EFFECTIVE PERFORMANCE OF THE TASK OF
PREVENTING PRIVATE VIOLENCE AND RETALIATION, IT IS IDLE TO TALK ABOUT
HUMAN DIGNITY AND CIVILIZED VALUES. 

THE MODES BY WHICH THE CRIMINAL LAWS SERVE THE INTEREST IN GENERAL
SECURITY ARE MANY.  FIRST THE MURDERER WHO HAS TAKEN THE LIFE OF
ANOTHER IS REMOVED FROM THE STREETS, DEPRIVED OF HIS LIBERTY AND
THEREBY PREVENTED FROM REPEATING HIS OFFENSE.  IN VIEW OF THE
STATISTICS ON RECIDIVISM IN THIS COUNTRY  (FN4) AND OF THE NUMBER OF
INSTANCES IN WHICH APPREHENSION OCCURS ONLY AFTER REPEATED OFFENSES, NO
ONE CAN SENSIBLY CLAIM THAT THIS ASPECT OF THE CRIMINAL LAW DOES NOT
PREVENT CRIME OR CONTRIBUTE SIGNIFICANTLY TO THE PERSONAL SECURITY OF
THE ORDINARY CITIZEN. 

SECONDLY, THE SWIFT AND SURE APPREHENSION OF THOSE WHO REFUSE TO
RESPECT THE PERSONAL SECURITY AND DIGNITY OF THEIR NEIGHBOR
UNQUESTIONABLY HAS ITS IMPACT ON OTHERS WHO MIGHT BE SIMILARLY
TEMPTED.  THAT THE CRIMINAL LAW IS WHOLLY OR PARTLY INEFFECTIVE WITH A
SEGMENT OF THE POPULATION OR WITH MANY OF THOSE WHO HAVE BEEN
APPREHENDED AND CONVICTED IS A VERY FAULTY BASIS FOR CONCLUDING THAT IT
IS NOT EFFECTIVE WITH RESPECT TO THE GREAT BULK OF OUR CITIZENS OR FOR
THINKING THAT WITHOUT THE CRIMINAL LAWS, OR IN THE ABSENCE OF THEIR
ENFORCEMENT, THERE WOULD BE NO INCREASE IN CRIME.  ARGUMENTS OF THIS
NATURE ARE NOT BORNE OUT BY ANY KIND OF RELIABLE EVIDENCE THAT I HAVE
SEEN TO THIS DATE. 

THIRDLY, THE LAW CONCERNS ITSELF WITH THOSE WHOM IT HAS CONFINED. 
THE HOPE AND AIM OF MODERN PENOLOGY, FORTUNATELY, IS AS SOON AS
POSSIBLE TO RETURN THE CONVICT TO SOCIETY A BETTER AND MORE LAW-ABIDING
MAN THAN WHEN HE LEFT.  SOMETIMES THERE IS SUCCESS, SOMETIMES FAILURE. 
BUT AT LEAST THE EFFORT IS MADE, AND IT SHOULD BE MADE TO THE VERY
MAXIMUM EXTEND OF OUR PRESENT AND FUTURE CAPABILITIES. 

THE RULE ANNOUNCED TODAY WILL MEASURABLY WEAKEN THE ABILITY OF THE
CRIMINAL LAW TO PERFORM THESE TASKS.  IT IS A DELIBERATE CALCULUS TO
PREVENT INTERROGATIONS, TO REDUCE THE INCIDENCE OF CONFESSIONS AND
PLEAS OF GUILTY AND TO INCREASE THE NUMBER OF TRIALS.  (FN5)  CRIMINAL
TRIALS, NO MATTER HOW EFFICIENT THE POLICE ARE, ARE NOT SURE BETS FOR
THE PROSECUTION, NOR SHOULD THEY BE IF THE EVIDENCE IS NOT
FORTHCOMING.  UNDER THE PRESENT LAW, THE PROSECUTION FAILS TO PROVE ITS
CASE IN ABOUT 30% OF THE CRIMINAL CASES ACTUALLY TRIED IN THE FEDERAL
COURTS.  SEE FEDERAL OFFENDERS:  1964, SUPRA, NOTE 4, AT 6 (TABLE 4),
59 (TABLE 1); FEDERAL OFFENDERS:  1963, SUPRA, NOTE 4, AT 5 (TABLE 3);
DISTRICT OF COLUMBIA OFFENDERS:  1963, SUPRA, NOTE 4, AT 2 (TABLE 1). 
BUT IT IS SOMETHING ELSE AGAIN TO REMOVE FROM THE ORDINARY CRIMINAL
CASE ALL THOSE CONFESSIONS WHICH HERETOFORE HAVE BEEN HELD TO BE FREE
AND VOLUNTARY ACTS OF THE ACCUSED AND TO THUS ESTABLISH A NEW
CONSTITUTIONAL BARRIER TO THE ASCERTAINMENT OF TRUTH BY THE JUDICIAL
PROCESS.  THERE IS, IN MY VIEW, EVERY REASON TO BELIEVE THAT A GOOD
MANY CRIMINAL DEFENDANTS WHO OTHERWISE WOULD HAVE BEEN CONVICTED ON
WHAT THIS COURT HAS PREVIOUSLY THOUGHT TO BE THE MOST SATISFACTORY KIND
OF EVIDENCE, MINUS THE CONFESSION, IS PUT TO THE TEST OF LITIGATION. 

I HAVE NO DESIRE WHATSOEVER TO SHARE THE RESPONSIBILITY FOR ANY SUCH
IMPACT ON THE PRESENT CRIMINAL PROCESS. 

IN SOME UNKNOWN NUMBER OF CASES THE COURT'S RULE WILL RETURN A
KILLER, A RAPIST OR OTHER CRIMINAL TO THE STREETS AND TO THE
ENVIRONMENT WHICH PRODUCED HIM, TO REPEAT HIS CRIME WHENEVER IT PLEASES
HIM.  AS A CONSEQUENCE, THERE WILL NOT BE A GAIN, BUT A LOSS, IN HUMAN
DIGNITY.  THE REAL CONCERN IS NOT THE UNFORTUNATE CONSEQUENCES OF THIS
NEW DECISION ON THE CRIMINAL LAW AS AN ABSTRACT, DISEMBODIED SERIES OF
AUTHORATIVE PROSCRIPTIONS, BUT THE IMPACT ON THOSE WHO RELY ON THE
PUBLIC AUTHORITY FOR PROTECTION AND WHO WITHOUT IT CAN ONLY ENGAGE IN
VIOLENT SELF-HELP WITH GUNS, KNIVES AND THE HELP OF THEIR NEIGHBORS
SIMILARLY INCLINED.  THERE IS, OF COURSE, A SAVING FACTOR:  THE NEXT
VICTIMS ARE UNCERTAIN, UNNAMED AND UNREPRESENTED IN THIS CASE. 

NOR CAN THIS DECISION DO OTHER THAN HAVE A CORROSIVE EFFECT ON THE
CRIMINAL LAW AS AN EFFECTIVE DEVICE TO PREVENT CRIME.  A MAJOR
COMPONENT IN ITS EFFECTIVENESS IN THIS REGARD IS ITS SWIFT AND SURE
ENFORCEMENT.  THE EASIER IT IS TO GET AWAY WITH RAPE AND MURDER, THE
LESS THE DETERRENT EFFECT ON THOSE WHO ARE INCLINED TO ATTEMPT IT.
THIS IS STILL GOOD COMMON SENSE.  IF IT WERE NOT, WE SHOULD POSTHASTE
LIQUIDATE THE WHOLE LAW ENFORCEMENT ESTABLISHMENT AS A USELESS,
MISGUIDED EFFORT TO CONTROL HUMAN CONDUCT. 

AND WHAT ABOUT THE ACCUSED WHO HAS CONFESSED OR WOULD CONFESS IN
RESPONSE TO SIMPLE, NONCOERCIVE QUESTIONING AND WHOSE GUILT COULD NOT
OTHERWISE BE PROVED?  IS IT S  CLEAR THAT RELEASE IS THE BEST THING FOR
HIM IN EVERY CASE?  HAS IT SO UNQUESTIONABLY BEEN RESOLVED THAT IN EACH
AND EVERY CASE IT WOULD BE BETTER FOR HIM NOT TO CONFESS AND TO RETURN
TO HIS ENVIRONMENT WITH NO ATTEMPT WHATSOEVER TO HELP HIM?  I THINK
NOT.  IT MAY WELL BE THAT IN MANY CASES IT WILL BE NO LESS THAN A
CALLOUS DISREGARD FOR HIS OWN WELFARE AS WELL AS FOR THE INTERESTS OF
HIS NEXT VICTIM. 

THERE IS ANOTHER ASPECT TO THE EFFECT OF THE COURT'S RULE ON THE
PERSON WHOM THE POLICE HAVE ARRESTED ON PROBABLE CAUSE.  THE FACT IS
THAT HE MAY NOT BE GUILTY AT ALL AND MAY BE ABLE TO EXTRICATE HIMSELF
QUICKLY AND SIMPLY IF HE WERE TOLD THE CIRCUMSTANCES OF HIS ARREST AND
WERE ASKED TO EXPLAIN.  THIS EFFORT, AND HIS RELEASE, MUST NOW AWAIT
THE HIRING OF A LAWYER OR HIS APPOINTMENT BY THE COURT, CONSULTATION
WITH COUNSEL AND THEN A SESSION WITH THE POLICE OR THE PROSECUTOR. 
SIMILARLY, WHERE PROBABLE CAUSE EXISTS TO ARREST SEVERAL SUSPECTS, AS
WHERE THE BODY OF THE VICTIM IS DISCOVERED IN A HOUSE HAVING SEVERAL
RESIDENTS, COMPARE JOHNSON V. STATE, 238 MD. 140, 207 A.2D 643 (1965),
CERT. DENIED, 382 U.S. 1013, IT WILL OFTEN BE TRUE THAT A SUSPECT MAY
BE CLEARED ONLY THROUGH THE RESULTS OF INTERROGATION OF OTHER
SUSPECTS.  HERE TOO THE RELEASE OF THE INNOCENT MAY BE DELAYED BY THE
COURT'S RULE. 

MUCH OF THE TROUBLE WITH THE COURT'S NEW RULE IS THAT IT WILL OPERATE
INDISCRIMINATELY IN ALL CRIMINAL CASES, REGARDLESS OF THE SEVERITY OF
THE CRIME OR THE CIRCUMSTANCES INVOLVED.  IT APPLIES TO EVERY
DEFENDANT, WHETHER THE PROFESSIONAL CRIMINAL OR ONE COMMITTING A CRIME
OF MOMENTARY PASSION WHO IS NOT PART AND PARCEL OF ORGANIZED CRIME.  IT
WILL SLOW DOWN THE INVESTIGATION AND THE APPREHENSION OF CONFEDERATES
IN THOSE CASES WHERE TIME IS OF THE ESSENCE, SUCH AS KIDNAPPING, SEE
BRINEGAR V. UNITED STATES, 338 U.S. 160, 183 (JACKSON, J., DISSENTING);
PEOPLE V. MODESTO, 62 CAL. 2D 436, 446, 398 P.2D 753, 759 (1965), THOSE
INVOLVING THE NATIONAL SECURITY, SEE UNITED STATES V. DRUMMOND, 354
F.2D 132, 147 (C.A.2D CIR. 1965)(EN BANC)(ESPIONAGE CASE), PET. FOR
CERT. PENDING, NO. 1203, MISC., O.T. 1965; CF. GESSNER V. UNITED
STATES, 354 F.2D 726, 730, N. 10 (C.A. 10TH CIR. 1965)(UPHOLDING, IN
ESPIONAGE CASE, TRIAL RULING THAT GOVERNMENT NEED NOT SUBMIT CLASSIFIED
PORTIONS OF INTERROGATION TRANSCRIPT), AND SOME OF THOSE INVOLVING
ORGANIZED CRIME.  IN THE LATTER CONTEXT THE LAWYER WHO ARRIVES MAY ALSO
BE THE LAWYER FOR THE DEFENDANT'S COLLEAGUES AND CAN BE RELIED UPON TO
INSURE THAT NO BREACH OF THE ORGANIZATION'S SECURITY TAKES PLACE EVEN
THOUGH THE ACCUSED MAY FEEL THAT THE BEST THING HE CAN DO IS TO
COOPERATE. 

AT THE SAME TIME, THE COURT'S PER SE APPROACH MAY NOT BE JUSTIFIED ON
THE GROUND THAT IT PROVIDES A "BRIGHT LINE" PERMITTING THE AUTHORITIES
TO JUDGE IN ADVANCE WHETHER INTERROGATION MAY SAFELY BE PURSUED WITHOUT
JEOPARDIZING THE ADMISSIBILITY OF ANY INFORMATION OBTAINED AS A
CONSEQUENCE.  NOR CAN IT BE CLAIMED THAT JUDICIAL TIME AND EFFORT,
ASSUMING THAT IS A RELEVANT CONSIDERATION, WILL BE CONSERVED BECAUSE OF
THE EASE OF APPLICATION OF THE NEW RULE.  TODAY'S DECISION LEAVES OPEN
SUCH QUESTIONS AS WHETHER THE ACCUSED WAS IN CUSTODY, WHETHER HIS
STATEMENTS WERE SPONTANEOUS OR THE PRODUCT OF INTERROGATION, WHETHER
THE ACCUSED HAS EFFECTIVELY WAIVED HIS RIGHTS, AND WHETHER
NONTESTIMONIAL EVIDENCE INTRODUCED AT TRIAL IS THE FRUIT OF STATEMENTS
MADE DURING A PROHIBITED INTERROGATION, ALL OF WHICH ARE CERTAIN TO
PROVE PRODUCTIVE OF UNCERTAINTY DURING INVESTIGATION AND LITIGATION
DURING PROSECUTION.  FOR ALL THESE REASONS, IF FURTHER RESTRICTIONS ON
POLICE INTERROGATION ARE DESIRABLE AT THIS TIME, A MORE FLEXIBLE
APPROACH MAKES MUCH MORE SENSE THAN THE COURT'S CONSTITUTIONAL
STRAITJACKET WHICH FORECLOSES MORE DISCRIMINATING TREATMENT BY
LEGISLATIVE OR RULE-MAKING PRONOUNCEMENTS. 

APPLYING THE TRADITIONAL STANDARDS TO THE CASES BEFORE THE COURT, I
WOULD HOLD THESE CONFESSIONS VOLUNTARY.  I WOULD THEREFORE AFFIRM IN
NOS. 759, 760, AND 761, AND REVERSE IN NO. 584. 

FN1  OF COURSE THE COURT DOES NOT DENY THAT IT IS DEPARTING FROM
PRIOR PRECEDENT; IT EXPRESSLY OVERRULES CROOKER AND CICENIA, ANTE, AT
479, N. 48, AND IT ACKNOWLEDGES THAT IN THE INSTANT "CASES WE MIGHT NOT
FIND THE DEFENDANTS' STATEMENTS TO HAVE BEEN INVOLUNTARY IN TRADITIONAL
TERMS," ANTE, AT 457. 

FN2  IN FACT, THE TYPE OF SUSTAINED INTERROGATION DESCRIBED BY THE
COURT APPEARS TO BE THE EXCEPTION RATHER THAN THE RULE.  A SURVEY OF
399 CASES IN ONE CITY FOUND THAT IN ALMOST HALF OF THE CASES THE
INTERROGATION LASTED LESS THAN 30 MINUTES.  BARRETT, POLICE PRACTICES
AND THE LAW - FROM ARREST TO RELEASE OR CHARGE, 50 CALIF. L. REV. 11,
41-45 (1962).  QUESTIONING TENDS TO BE CONFUSED AND SPORADIC AND IS
USUALLY CONCENTRATED ON CONFRONTATIONS WITH WITNESSES OR NEW ITEMS OF
EVIDENCE, AS THESE ARE OBTAINED BY OFFICERS CONDUCTING THE
INVESTIGATION.  SEE GENERALLY LAFAVE, ARREST: THE DECISION TO TAKE A
SUSPECT INTO CUSTODY 386 (1965); ALI, A MODEL CODE OF PRE-ARRAIGNMENT
PROCEDURE, COMMENTARY SEC. 5.01, AT 170, N. 4 (TENT.  DRAFT NO. 1,
1966).    FN3  BY CONTRAST, THE COURT INDICATES THAT IN APPLYING THIS
NEW RULE IT "WILL NOT PAUSE TO INQUIRE IN INDIVIDUAL CASES WHETHER THE
DEFENDANT WAS AWARE OF HIS RIGHTS WITHOUT A WARNING BEING GIVEN." 
ANTE, AT 468.  THE REASON GIVEN IS THAT ASSESSMENT OF THE KNOWLEDGE OF
THE DEFENDANT BASED ON INFORMATION AS TO AGE, EDUCATION, INTELLIGENCE,
OR PRIOR CONTACT WITH AUTHORITIES CAN NEVER BE MORE THAN SPECULATION,
WHILE A WARNING IS A CLEAR-CUT FACT.  BUT THE OFFICERS' CLAIM THAT THEY
GAVE THE REQUISITE WARNINGS MAY BE DISPUTED, AND FACTS RESPECTING THE
DEFENDANT'S PRIOR EXPERIENCE MAY BE UNDISPUTED AND BE OF SUCH A NATURE
AS TO VIRTUALLY PRECLUDE ANY DOUBT THAT THE DEFENDANT KNEW OF HIS
RIGHTS.  SEE UNITED STATES V. BOLDEN, 355 F.2D 453 (C.A. 7TH CIR.
1965), PETITION FOR CERT. PENDING NO. 1146, O.T.  1965 (SECRET SERVICE
AGENT); PEOPLE V. DU BONT, 235 CAL. APP. 2D 844, 45 CAL. RPTR.  717,
PET. FOR CERT. PENDING NO. 1053, MISC., O.T. 1965 (FORMER POLICE
OFFICER). 

FN4  PRECISE STATISTICS ON THE EXTENT OF RECIDIVISM ARE UNAVAILABLE,
IN PART BECAUSE NOT ALL CRIMES ARE SOLVED AND IN PART BECAUSE CRIMINAL
RECORDS OF CONVICTIONS IN DIFFERENT JURISDICTIONS ARE NOT BROUGHT
TOGETHER BY A CENTRAL DATA COLLECTION AGENCY.  BEGINNING IN 1963,
HOWEVER, THE FEDERAL BUREAU OF INVESTIGATION BEGAN COLLATING DATA ON
"CAREERS IN CRIME," WHICH IT PUBLISHES IN ITS UNIFORM CRIME REPORTS. 
OF 92,869 OFFENDERS PROCESSED IN 1963 AND 1964, 76% HAD A PRIOR ARREST
RECORD ON SOME CHARGE.  OVER A PERIOD OF 10 YEARS THE GROUP HAD
ACCUMULATED 434,000 CHARGES.  FBI, UNIFORM CRIME REPORTS - 1964, 27
28.  IN 1963 AND 1964 BETWEEN 23% AND 25% OF ALL OFFENDERS SENTENCED IN
88 FEDERAL DISTRICT COURTS (EXCLUDING THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA) WHOSE CRIMINAL RECORDS WERE REPORTED HAD
PREVIOUSLY BEEN SENTENCED TO A TERM OF IMPRISONMENT OF 13 MONTHS OR
MORE.  APPROXIMATELY AN ADDITIONAL 40% HAD A PRIOR RECORD LESS THAN
PRISON (JUVENILE RECORD, PROBATION RECORD, ETC.).  ADMINISTRATIVE
OFFICE OF THE UNITED STATES COURTS, FEDERAL OFFENDERS IN THE UNITED
STATES DISTRICT COURTS: 1964, X, 36 (HEREINAFTER CITED AS FEDERAL
OFFENDERS: 1964); ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS,
FEDERAL OFFENDERS IN THE UNITED STATES DISTRICT COURTS: 1963, 25-27
(HEREINAFTER CITED AS FEDERAL OFFENDERS: 1963).  DURING THE SAME TWO
YEARS IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BETWEEN 28%
AND 35% OF THOSE SENTENCED HAD PRIOR PRISON RECORDS AND FROM 37% TO 40%
HAD A PRIOR RECORD LESS THAN PRISON.  FEDERAL OFFENDERS: 1964 XII, 64,
66; ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FEDERAL
OFFENDERS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA:  1963, 8, 10 (HEREINAFTER CITED AS DISTRICT OF COLUMBIA
OFFENDERS:  1963). 

A SIMILAR PICTURE IS OBTAINED IF ONE LOOKS AT THE SUBSEQUENT RECORDS
OF THOSE RELEASED FROM CONFINEMENT.  IN 1964, 12.3% OF PERSONS ON
FEDERAL PROBATION HAD THEIR PROBATION REVOKED BECAUSE OF THE COMMISSION
OF MAJOR VIOLATIONS (DEFINED AS ONE IN WHICH THE PROBATIONER HAS BEEN
COMMITTED TO IMPRISONMENT FOR A PERIOD OF 90 DAYS OR MORE, BEEN PLACED
ON PROBATION FOR OVER ONE YEAR ON A NEW OFFENSE, OR HAS ABSCONDED WITH
FELONY CHARGES OUTSTANDING).  TWENTY-THREE AND TWO-TENTHS PERCENT OF
PAROLEES AND 16.9% OF THOSE WHO HAD BEEN MANDATORILY RELEASED AFTER
SERVICE OF A PORTION OF THEIR SENTENCE LIKEWISE COMMITTED MAJOR
VIOLATIONS.  REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF
THE UNITED STATES AND ANNUAL REPORT OF THE DIRECTOR OF THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:  1965, 138.  SEE
ALSO MANDEL ET AL., RECIDIVISM STUDIED AND DEFINED, 56 J. CRIM. L.,
C.&P.S. 59 (1965)(WITHIN FIVE YEARS OF RELEASE 62.33% OF SAMPLE HAD
COMMITTED OFFENSES PLACING THEM IN RECIDIVIST CATEGORY). 

FN5  EIGHTY-EIGHT FEDERAL DISTRICT COURTS (EXCLUDING THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA) DISPOSED OF THE CASES OF 33,381
CRIMINAL DEFENDANTS IN 1964.  ONLY 12.5% OF THOSE CASES WERE ACTUALLY
TRIED.  OF THE REMAINING CASES, 89.9% WERE TERMINATED BY CONVICTIONS
UPON PLEAS OF GUILTY AND 10.1% WERE DISMISSED.  STATED DIFFERENTLY,
APPROXIMATELY 90% OF ALL CONVICTIONS RESULTED FROM GUILTY PLEAS. 
FEDERAL OFFENDERS:  1964, SUPRA, NOTE 4, 3-6.  IN THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA A HIGHER PERCENTAGE, 27%, WENT TO TRIAL,
AND THE DEFENDANT PLEADED GUILTY IN APPROXIMATELY 78% OF THE CASES
TERMINATED PRIOR TO TRIAL.  ID., AT 58-59.  NO RELIABLE STATISTICS ARE
AVAILABLE CONCERNING THE PERCENTAGE OF CASES IN WHICH GUILTY PLEAS ARE
INDUCED BECAUSE OF THE EXISTENCE OF A CONFESSION OR OF PHYSICAL
EVIDENCE UNEARTHED AS A RESULT OF A CONFESSION.  UNDOUBTEDLY THE NUMBER
OF SUCH CASES IS SUBSTANTIAL. 

PERHAPS OF EQUAL SIGNIFICANCE IS THE NUMBER OF INSTANCES OF KNOWN
CRIMES WHICH ARE NOT SOLVED.  IN 1964, ONLY 388,946, OR 23.9% OF
1,626,574 SERIOUS KNOWN OFFENSES WERE CLEARED.  THE CLEARANCE RATE
RANGED FROM 89.8% FOR HOMICIDES TO 18.7% FOR LARCENY.  FBI, UNIFORM
CRIME REPORTS - 1964, 20-22, 101.  THOSE WHO WOULD REPLACE
INTERROGATION AS AN INVESTIGATORIAL TOOL BY MODERN SCIENTIFIC
INVESTIGATION TECHNIQUES SIGNIFICANTLY OVERESTIMATE THE EFFECTIVENESS
OF PRESENT PROCEDURES, EVEN WHEN INTERROGATION IS INCLUDED. 
..END :

















UNITED STATES V. PABST BREWING CO. 384 U.S. 546 


NO. 404.  ARGUED APRIL 27, 1966.  - DECIDED JUNE 13, 1966.  - 233 F.
SUPP. 475, REVERSED AND REMANDED. 


IN 1958 PABST BREWING COMPANY, THE COUNTRY'S TENTH LARGEST BREWER,
ACQUIRED BLATZ BREWING COMPANY, THE EIGHTEENTH LARGEST, THUS BECOMING
THE FIFTH LARGEST WITH 4.49% OF THE TOTAL INDUSTRY SALES.  THE
GOVERNMENT BROUGHT THIS ACTION CHARGING THAT THE ACQUISITION VIOLATED
SEC 7 OF THE CLAYTON ACT BECAUSE ITS EFFECT "MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION" IN THE PRODUCTION AND SALE OF BEER IN THE UNITED
STATES, IN WISCONSIN, AND IN THE THREE-STATE AREA COMPRISING WISCONSIN,
ILLINOIS AND MICHIGAN.  THE GOVERNMENT INTRODUCED EVIDENCE TO ESTABLISH
A MARKED DECLINE IN THE NUMBER OF BREWERS AND A SHARP RISE IN THE SHARE
OF THE MARKET CONTROLLED BY THE LEADING BREWERS, BOTH PRIOR TO AND
FOLLOWING THIS MERGER.  IT ALSO SHOWED THAT THE COMBINED SHARE OF THE
TWO COMPANIES IN WISCONSIN IN 1957 WAS 23.95%, AND IN THE THREE-STATE
AREA WAS 11.32%.  AT THE CLOSE OF THE GOVERNMENT'S CASE, THE DISTRICT
COURT DISMISSED THE CASE, FINDING THAT THE GOVERNMENT HAD NOT SHOWN
THAT WISCONSIN OR THE THREE-STATE AREA WAS A RELEVANT GEOGRAPHIC MARKET
WITHIN WHICH THE PROBABLE EFFECT OF THE ACQUISITION SHOULD BE TESTED
AND HAD NOT SHOWN THAT THE MERGER MIGHT SUBSTANTIALLY LESSEN
COMPETITION IN THE CONTINENTAL UNITED STATES, THE ONLY RELEVANT
GEOGRAPHIC MARKET.  HELD: 

1.  BY THE LANGUAGE OF THE ACT THE GOVERNMENT MUST ONLY PROVE THAT
THE EFFECT OF THE MERGER MAY BE SUBSTANTIALLY TO LESSEN COMPETITION IN
ANY LINE OF COMMERCE "IN ANY SECTION OF THE COUNTRY."  PP. 548-550. 

(A)  A VIOLATION OF SEC 7 WOULD BE PROVED BY EVIDENCE SHOWING THAT
COMPETITION MAY BE SUBSTANTIALLY LESSENED THROUGHOUT THE COUNTRY OR
ONLY IN ONE OR MORE SECTIONS OF THE NATION, AND FAILURE TO PROVE A
RELEVANT "ECONOMIC" OR "GEOGRAPHIC" MARKET IS NOT AN ADEQUATE GROUND
FOR DISMISSAL.  P. 549. 

(B)  PROOF OF THE SECTION OF THE COUNTRY WHERE THE ANTICOMPETITIVE
EFFECT EXISTS IS ENTIRELY SUBSIDIARY TO THE CRUCIAL SEC 7 QUESTION
WHICH IS WHETHER THE MERGER MAY SUBSTANTIALLY LESSEN COMPETITION
ANYWHERE IN THE COUNTRY.  PP. 549-550. 

2.  THE EVIDENCE AS TO THE PROBABLE EFFECT OF THE MERGER OF THESE TWO
LARGE CORPORATIONS, IN AN INDUSTRY WHICH IS RAPIDLY BECOMING MORE
CONCENTRATED, ON COMPETITION IN WISCONSIN, IN THE THREE-STATE AREA, AND
IN THE ENTIRE COUNTRY, WAS AMPLE TO SHOW A VIOLATION OF SEC 7 IN ALL
THESE AREAS.  PP. 550-552. 

3.  THE ACT IS CONCERNED WITH ARRESTING CONCENTRATION OF THE ECONOMY,
WHATEVER ITS CAUSE, IN ITS INCIPIENCY, AND THE GOVERNMENT HAS NO DUTY
TO SHOW THAT THE TREND TOWARDS CONCENTRATION IN THE BEER INDUSTRY IS
DUE TO MERGERS.  PP. 552-553. 

UNITED STATES V. PABST BREWING CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF WISCONSIN. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1958 PABST BREWING COMPANY, THE NATION'S TENTH LARGEST BREWER,
ACQUIRED THE BLATZ BREWING COMPANY, THE EIGHTEENTH LARGEST.  IN 1959
THE GOVERNMENT BROUGHT THIS ACTION CHARGING THAT THE ACQUISITION
VIOLATED SEC 7 OF THE CLAYTON ACT AS AMENDED BY THE CELLER-KEFAUVER
ANTI-MERGER AMENDMENT.  (FN1)  THAT SECTION MAKES IT UNLAWFUL FOR ONE
CORPORATION ENGAGED IN COMMERCE TO ACQUIRE THE STOCK OR ASSETS OF
ANOTHER "WHERE IN ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY,
THE EFFECT OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION, OR TO TEND TO CREATE A MONOPOLY."  THE GOVERNMENT'S
COMPLAINT CHARGED THAT "THE EFFECT OF THIS ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION OR TO TEND TO CREATE A MONOPOLY IN
THE PRODUCTION AND SALE OF BEER IN THE UNITED STATES AND IN VARIOUS
AREA ENCOMPASSING WISCONSIN, ILLINOIS AND MICHIGAN  ...  ."  (FN2)  AT
THE CLOSE OF THE GOVERNMENT'S CASE, THE DISTRICT COURT DISMISSED THE
CASE UNDER RULE 41(B) OF THE FED. RULES CIV. PROC., HOLDING THAT THE
GOVERNMENT'S PROOF HAD NOT SHOWN THAT EITHER WISCONSIN OR THE THREE
STATE AREA OF WISCONSIN, MICHIGAN AND ILLINOIS WAS A "RELEVANT
GEOGRAPHIC MARKET WITHIN WHICH THE PROBABLE EFFECT OF THE ACQUISITION
OF BLATZ BY PABST SHOULD BE TESTED."  THE DISTRICT COURT ALSO RULED
THAT THE GOVERNMENT HAD NOT SHOWN THAT "THE EFFECT OF THE ACQUISITION
...  MAY BE SUBSTANTIALLY TO LESSEN COMPETITION OR TO TEND TO CREATE A
MONOPOLY IN THE BEER INDUSTRY IN THE CONTINENTAL UNITED STATES, THE
ONLY RELEVANT GEOGRAPHIC MARKET."  233 F. SUPP. 475, 481, 488. 

                                  I. 

WE FIRST TAKE UP THE COURT'S DISMISSAL BASED ON ITS CONCLUSION THAT
THE GOVERNMENT FAILED TO PROVE EITHER WISCONSIN OR THE THREE-STATE AREA
CONSTITUTED "A RELEVANT SECTION OF THE COUNTRY WITHIN THE MEANING OF
SHOW A VIOLATION OF SEC 7 IT WAS ESSENTIAL FOR THE GOVERNMENT TO SHOW A
"RELEVANT GEOGRAPHIC MARKET" IN THE SAME WAY THE CORPUS DELICTI MUST BE
PROVED TO ESTABLISH A CRIME.  BUT WHEN THE GOVERNMENT BRINGS AN ACTION
UNDER SEC 7 IT MUST, ACCORDING TO THE LANGUAGE OF THE STATUTE, PROVE NO
MORE THAN THAT THERE HAS BEEN A MERGER BETWEEN TWO CORPORATIONS ENGAGED
IN COMMERCE AND THAT THE EFFECT OF THE MERGER MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE
"IN ANY SECTION OF THE COUNTRY."  THE LANGUAGE OF THIS SECTION REQUIRES
MERELY THAT THE GOVERNMENT PROVE THE MERGER MAY HAVE A SUBSTANTIAL
ANTICOMPETITIVE EFFECT SOMEWHERE IN THE UNITED STATES - "IN ANY
DELINEATION OF A "SECTION OF THE COUNTRY" BY METES AND BOUNDS AS A
SURVEYOR WOULD LAY OFF A PLOT OF GROUND.  (FN3)  THE GOVERNMENT MAY
INTRODUCE EVIDENCE WHICH SHOWS THAT AS A RESULT OF A MERGER COMPETITION
MAY BE SUBSTANTIALLY LESSENED THROUGHOUT THE COUNTRY, OR ON THE OTHER
HAND IT MAY PROVE THAT COMPETITION MAY BE SUBSTANTIALLY LESSENED ONLY
IN ONE OR MORE SECTIONS OF THE COUNTRY.  IN EITHER EVENT A VIOLATION OF
SEC 7 WOULD BE PROVED.  CERTAINLY THE FAILURE OF THE GOVERNMENT TO
PROVE BY AN ARMY OF EXPERT WITNESSES WHAT CONSTITUTES A RELEVANT
"ECONOMIC" OR "GEOGRAPHIC" MARKET IS NOT AN ADEQUATE GROUND ON WHICH TO
DISMISS A SEC 7 CASE.  COMPARE UNITED STATES V. CONTINENTAL CAN CO.,
378 U.S. 441, 458.  CONGRESS DID NOT SEEM TO BE TROUBLED ABOUT THE
EXACT SPOT WHERE COMPETITION MIGHT BE LESSENED; IT SIMPLY INTENDED TO
OUTLAW MERGERS WHICH THREATENED COMPETITION IN ANY OR ALL PARTS OF THE
COUNTRY.  PROOF OF THE SECTION OF THE COUNTRY WHERE THE ANTICOMPETITIVE
EFFECT EXISTS IS ENTIRELY SUBSIDIARY TO THE CRUCIAL QUESTION IN THIS
AND EVERY SEC 7 CASE WHICH IS WHETHER A MERGER MAY SUBSTANTIALLY LESSEN
COMPETITION ANYWHERE IN THE UNITED STATES. 

                        II. 

THE GOVERNMENT'S EVIDENCE, CONSISTING OF DOCUMENTS, STATISTICS,
OFFICIAL RECORDS, DEPOSITIONS, AND AFFIDAVITS BY WITNESSES, RELATED
PRINCIPALLY TO THE COMPETITIVE POSITION OF PABST AND BLATZ IN THE BEER
INDUSTRY THROUGHOUT THE NATION, IN THE THREE-STATE AREA OF WISCONSIN,
ILLINOIS, AND MICHIGAN, AND IN THE STATE OF WISCONSIN.  THE RECORD IN
THIS CASE, INCLUDING ADMISSIONS BY PABST IN ITS FORMAL ANSWER TO THE
GOVERNMENT'S COMPLAINT, THE EVIDENCE INTRODUCED BY THE GOVERNMENT, THE
FINDINGS OF FACT AND OPINION OF THE DISTRICT JUDGE, SHOWS AMONG OTHERS
THE FOLLOWING FACTS.  IN 1958, THE YEAR OF THE MERGER, PABST WAS THE
TENTH LARGEST BREWER IN THE NATION AND BLATZ RANKED EIGHTEENTH.  THE
MERGER MADE PABST THE NATION'S FIFTH LARGEST BREWER WITH 4.49% OF THE
INDUSTRY'S TOTAL SALES.  BY 1961, THREE YEARS AFTER THE MERGER, PABST
HAD INCREASED ITS SHARE OF THE BEER MARKET TO 5.83% AND HAD BECOME THE
THIRD LARGEST BREWER IN THE COUNTRY.  IN THE STATE OF WISCONSIN, BEFORE
THE MERGER, BLATZ WAS THE LEADING SELLER OF BEER AND PABST RANKED
FOURTH.  THE MERGER MADE PABST THE LARGEST SELLER IN THE STATE WITH
23.95% OF ALL THE SALES MADE THERE.  BY 1961 PABST'S SHARE OF THE
MARKET HAD INCREASED TO 27.41%.  THIS MERGER TOOK PLACE IN AN INDUSTRY
MARKED BY A STEADY TREND TOWARD ECONOMIC CONCENTRATION.  ACCORDING TO
THE DISTRICT COURT THE NUMBER OF BREWERIES OPERATING IN THE UNITED
STATES DECLINED FROM 714 IN 1934 TO 229 IN 1961, AND THE TOTAL NUMBER
OF DIFFERENT COMPETITORS SELLING BEER HAS FALLEN FROM 206 IN 1957 TO
162 IN 1961.  IN WISCONSIN THE NUMBER OF COMPANIES SELLING BEER HAS
DECLINED FROM 77 IN 1955 TO 54 IN 1961.  AT THE SAME TIME THE NUMBER OF
COMPETITORS IN THE INDUSTRY WERE BECOMING FEWER AND FEWER, THE LEADING
BREWERS WERE INCREASING THEIR SHARES OF SALES.  BETWEEN 1957 AND 1961
THE NATION'S 10 LEADING BREWERS INCREASED THEIR COMBINED SHARES OF
SALES FROM 45.06% TO 52.60%.  IN WISCONSIN THE FOUR LEADING SELLERS
ACCOUNTED FOR 47.74% OF THE STATE'S SALES IN 1957 AND BY 1961 THIS
SHARE HAD INCREASED TO 58.62%.  IN THE THREE-STATE AREA THE EVIDENCE
SHOWED THAT IN 1957 BLATZ WAS THE SIXTH LARGEST SELLER WITH 5.84% OF
THE TOTAL SALES THERE AND PABST RANKED SEVENTH WITH 5.48%.  AS WAS TRUE
IN THE BEER INDUSTRY THROUGHOUT THE NATION, THERE WAS A TREND TOWARD
CONCENTRATION IN THE THREE-STATE AREA.  FROM 1957 TO 1961 THE NUMBER OF
MAJOR BREWERS SELLING THERE DROPPED FROM 104 TO 86 AND DURING THE SAME
PERIOD THE EIGHT LEADING SELLERS INCREASED THEIR COMBINED SHARES OF
BEER SALES FROM 58.93% TO 67.65%. 

THESE FACTS SHOW A VERY MARKED THIRTY-YEAR DECLINE IN THE NUMBER OF
BREWERS AND A SHARP RISE IN RECENT YEARS IN THE PERCENTAGE SHARE OF THE
MARKET CONTROLLED BY THE LEADING BREWERS.  IF NOT STOPPED, THIS DECLINE
IN THE NUMBER OF SEPARATE COMPETITORS AND THIS RISE IN THE SHARE OF THE
MARKET CONTROLLED BY THE LARGER BEER MANUFACTURERS ARE BOUND TO LEAD TO
GREATER AND GREATER CONCENTRATION OF THE BEER INDUSTRY INTO FEWER AND
FEWER HANDS.  THE MERGER OF PABST AND BLATZ BROUGHT TOGETHER TWO VERY
LARGE BREWERS COMPETING AGAINST EACH OTHER IN 40 STATES.  IN 1957 THESE
TWO COMPANIES HAD COMBINED SALES WHICH ACCOUNTED FOR 23.95% OF THE BEER
SALES IN WISCONSIN, 11.32% OF THE SALES IN THE THREE-STATE AREA OF
WISCONSIN, ILLINOIS, AND MICHIGAN, AND 4.49% OF THE SALES THROUGHOUT
THE COUNTRY.  IN ACCORD WITH OUR PRIOR CASES,  (FN4) WE HOLD THAT THE
EVIDENCE AS TO THE PROBABLE EFFECT OF THE MERGER ON COMPETITION IN
WISCONSIN, IN THE THREE-STATE AREA, AND IN THE ENTIRE COUNTRY WAS
SUFFICIENT TO SHOW A VIOLATION OF SEC 7 IN EACH AND ALL OF THESE THREE
AREAS. 

WE HAVE NOT OVERLOOKED PABST'S CONTENTION THAT WE SHOULD NOT CONSIDER
THE STEADY TREND TOWARD CONCENTRATION IN THE BEER INDUSTRY BECAUSE THE
GOVERNMENT HAS NOT SHOWN THAT THE TREND IS DUE TO MERGERS.  THERE IS NO
DUTY ON THE GOVERNMENT TO MAKE SUCH PROOF.  IT WOULD SEEM FANTASTIC TO
ASSUME THAT PART OF THE CONCENTRATION IN THE BEER INDUSTRY HAS NOT BEEN
DUE TO MERGERS BUT EVEN IF THE GOVERNMENT MADE NO SUCH PROOF, IT WOULD
NOT AID PABST.  CONGRESS, IN PASSING SEC 7 AND IN AMENDING IT WITH THE
CELLER-KEFAUVER ANTI-MERGER AMENDMENT, WAS CONCERNED WITH ARRESTING
CONCENTRATION IN THE AMERICAN ECONOMY, WHATEVER ITS CAUSE, IN ITS
INCIPIENCY.  TO PUT A HALT TO WHAT IT CONSIDERED TO BE A "RISING TIDE"
OF CONCENTRATION IN AMERICAN BUSINESS, CONGRESS, WITH FULL POWER TO DO
SO, DECIDED "TO CLAMP DOWN WITH VIGOR ON MERGERS."  UNITED STATES V.
VON'S GROCERY CO., ANTE, AT 276.  IT PASSED AND AMENDED SEC 7 ON THE
PREMISE THAT MERGERS DO TEND TO ACCELERATE CONCENTRATION IN AN
INDUSTRY.  MANY BELIEVE THAT THIS ASSUMPTION OF CONGRESS IS WRONG, AND
THAT THE DISAPPEARANCE OF SMALL BUSINESSES WITH A CORRELATIVE
CONCENTRATION OF BUSINESS IN THE HANDS OF A FEW IS BOUND TO OCCUR
WHETHER MERGERS ARE PROHIBITED OR NOT.  BUT IT IS NOT FOR THE COURTS TO
REVIEW THE POLICY DECISION OF CONGRESS THAT MERGERS WHICH MAY
SUBSTANTIALLY LESSEN COMPETITION ARE FORBIDDEN, WHICH IN EFFECT THE
COURTS WOULD BE DOING SHOULD THEY NOW REQUIRE PROOF OF THE
CONGRESSIONAL PREMISE THAT MERGERS ARE A MAJOR CAUSE OF CONCENTRATION. 
WE HOLD THAT A TREND TOWARD CONCENTRATION IN AN INDUSTRY, WHATEVER ITS
CAUSES, IS A HIGHLY RELEVANT FACTOR IN DECIDING HOW SUBSTANTIAL THE
ANTICOMPETITIVE EFFECT OF A MERGER MAY BE.  REVERSED AND REMANDED. 

FN1  38 STAT. 731, AS AMENDED, 64 STAT. 1125, 15 U.S.C. SEC 18 (1964
ED.). 

FN2  THE COMPLAINT CHARGED THAT THE MERGER VIOLATED SEC 7 OF THE
CLAYTON ACT IN THE FOLLOWING WAYS AMONG OTHERS: 

"(A)  ACTUAL AND POTENTIAL COMPETITION BETWEEN PABST AND BLATZ IN THE
SALE OF BEER HAS BEEN ELIMINATED. 

"(B)  ACTUAL AND POTENTIAL COMPETITION GENERALLY IN THE SALE OF BEER
MAY BE SUBSTANTIALLY LESSENED. 

"(C)  BLATZ HAS BEEN ELIMINATED AS AN INDEPENDENT COMPETITIVE FACTOR
IN THE PRODUCTION AND SALE OF BEER. 

"(D)  THE ACQUISITION ALLEGED HEREIN MAY ENHANCE PABST'S COMPETITIVE
ADVANTAGE IN THE PRODUCTION AND SALE OF BEER TO THE DETRIMENT OF ACTUAL
AND POTENTIAL COMPETITION. 

"(E)  INDUSTRY-WIDE CONCENTRATION IN THE SALE OF BEER WILL BE
INCREASED." 

FN3  TIMES-PICAYUNE V. UNITED STATES, 345 U.S. 594, 611; UNITED
STATES V. DU PONT & CO., 351 U.S. 377, 395; UNITED STATES V.
PHILADELPHIA NAT. BANK, 374 U.S. 321, 360, N. 37 

FN4  SEE, E.G., UNITED STATES V. VON'S GROCERY CO., ANTE, P. 270;
BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294; UNITED STATES V.
PHILADELPHIA NAT. BANK, 374 U.S. 321; UNITED STATES V. EL PASO GAS CO.,
376 U.S. 651; UNITED STATES V. ALCOA, 377 U.S. 271; UNITED STATES V.
CONTINENTAL CAN CO., 378 U.S. 441; FTC V. CONSOLIDATED FOODS, 380 U.S.
592. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE COURT'S OPINION, I ADD ONLY A WORD IN SUPPORT OF THE
COURT'S DESCRIPTION OF THE ANATOMY OF THE "RELEVANT GEOGRAPHIC MARKET"
FOR PURPOSES OF THE CLAYTON ACT.  THE ALTERNATIVE LEADS TO A FORM OF
CONCENTRATION WHOSE ULTIMATE REDUCTIO AD ABSURDUM IS DESCRIBED IN THE
APPENDIX TO THIS OPINION. 

         APPENDIX TO CONCURRING OPINION OF MR. JUSTICE DOUGLAS. 

EVERY TIME YOU PICK UP THE NEWSPAPER YOU READ ABOUT ONE COMPANY
MERGING WITH ANOTHER COMPANY.  OF COURSE, WE HAVE LAWS TO PROTECT
COMPETITION IN THE UNITED STATES, BUT ONE CAN'T HELP THINKING THAT, IF
THE TREND CONTINUES, THE WHOLE COUNTRY WILL SOON BE MERGED INTO ONE
LARGE COMPANY. 

IT IS 1978 AND BY THIS TIME EVERY COMPANY WEST OF THE MISSISSIPPI
WILL HAVE MERGED INTO ONE GIANT CORPORATION KNOWN AS SAMSON
SECURITIES.  EVERY COMPANY EAST OF THE MISSISSIPPI WILL HAVE MERGED
UNDER AN UMBRELLA CORPORATION KNOWN AS THE DELILAH COMPANY. 

IT IS INEVITABLE THAT ONE DAY THE CHAIRMAN OF THE BOARD OF SAMSON AND
THE PRESIDENT OF DELILAH WOULD MEET AND DISCUSS MERGING THEIR TWO
COMPANIES. 

"IF WE COULD GET TOGETHER," THE PRESIDENT OF DELILAH SAID, "WE WOULD
BE ABLE TO FINANCE YOUR PROJECTS AND YOU WOULD BE ABLE TO FINANCE
OURS." 

"EXACTLY WHAT I WAS THINKING," THE CHAIRMAN OF SAMSON SAID. 

"THAT'S A GREAT IDEA AND IT CERTAINLY MAKES EVERYONE'S LIFE LESS
COMPLICATED." 

THE MEN SHOOK ON IT AND THEN THEY SOUGHT OUT APPROVAL FROM THE ANTI
TRUST DIVISION OF THE JUSTICE DEPARTMENT. 

AT FIRST THE HEAD OF THE ANTI-TRUST DIVISION INDICATED THAT HE MIGHT
HAVE RESERVATIONS ABOUT ALLOWING THE ONLY TWO COMPANIES LEFT IN THE
UNITED STATES TO MERGE. 

"OUR DEPARTMENT," HE SAID, "WILL TAKE A CLOSE LOOK AT THIS PROPOSED
MERGER.  IT IS OUR JOB TO FURTHER COMPETITION IN PRIVATE BUSINESS AND
INDUSTRY, AND IF WE ALLOW SAMSON AND DELILAH TO MERGE WE MAY BE DOING
THE CONSUMER A DISSERVICE." 

THE CHAIRMAN OF SAMSON PROTESTED VIGOROUSLY THAT MERGING WITH DELILAH
WOULD NOT STIFLE COMPETITION, BUT WOULD HELP IT.  "THE PUBLIC WILL BE
THE TRUE BENEFICIARY OF THIS MERGER," HE SAID.  "THE LARGER WE ARE, THE
MORE SERVICES WE CAN PERFORM, AND THE LOWER PRICES WE CAN CHARGE." 

THE PRESIDENT OF DELILAH BACKED HIM UP.  "IN THE COMMUNIST SYSTEM THE
PEOPLE DON'T HAVE A CHOICE.  THEY MUST BUY FROM THE STATE.  IN OUR
CAPITALISTIC SOCIETY THE PEOPLE CAN BUY FROM EITHER THE SAMSON COMPANY
OR THE DELILAH COMPANY."    "BUT IF YOU MERGE," SOMEONE POINTED OUT,
"THERE WILL BE ONLY ONE COMPANY LEFT IN THE UNITED STATES." 

"EXACTLY," SAID THE PRESIDENT OF DELILAH.  "THANK GOD FOR THE FREE
ENTERPRISE SYSTEM." 

THE ANTI-TRUST DIVISION OF THE JUSTICE DEPARTMENT STUDIED THE MERGER
FOR MONTHS.  FINALLY THE ATTORNEY GENERAL MADE THIS RULING.  "WHILE WE
FIND SOME DRAWBACKS TO ONLY ONE COMPANY BEING LEFT IN THE UNITED
STATES, WE FEEL THE ADVANTAGES TO THE PUBLIC FAR OUTWEIGH THE
DISADVANTAGES. 

"THEREFORE, WE'RE MAKING AN EXCEPTION IN THIS CASE AND ALLOWING
SAMSON AND DELILAH TO MERGE.    "I WOULD LIKE TO ANNOUNCE THAT THE
SAMSON AND DELILAH COMPANY IS NOW NEGOTIATING AT THE WHITE HOUSE WITH
THE PRESIDENT TO BUY THE UNITED STATES.  THE JUSTICE DEPARTMENT WILL
NATURALLY STUDY THIS MERGER TO SEE IF IT VIOLATES ANY OF OUR STRONG
ANTI-TRUST LAWS." 

ART BUCHWALD, WASHINGTON POST, JUNE 2, 1966, P. A21. 

MR. JUSTICE WHITE, CONCURRING. 

I JOIN THE COURT'S OPINION INSOFAR AS IT HOLDS THE MERGER OF PABST
AND BLATZ MAY SUBSTANTIALLY LESSEN COMPETITION IN THE BEER INDUSTRY IN
THE NATION AS A WHOLE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING IN THE
RESULT. 

I CONCUR IN THE JUDGMENT OF REVERSAL ON THE LIMITED GROUND THAT THE
GOVERNMENT'S EVIDENCE IS SUFFICIENT TO ESTABLISH PRIMA FACIE THAT
WISCONSIN AND THE TRI-STATE AREA COMPRISING WISCONSIN, MICHIGAN AND
ILLINOIS ARE BOTH PROPER SECTIONS OF THE COUNTRY IN WHICH TO MEASURE
THE PROBABLE EFFECTS OF THE ACQUISITION OF BLATZ BY PABST UNDER SEC 7
OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED, 64 STAT. 1125, 15 U.S.C.
SEC 18 (1964 ED.).  HOWEVER, I AM WHOLLY UNABLE TO SUBSCRIBE TO THE
COURT'S OPINION WHICH APPEARS TO EMASCULATE THE STATUTORY PHRASE "IN
ANY SECTION OF THE COUNTRY." 

                                          I. 

THE COURT IS QUITE RIGHT IN STATING THAT THE PRIMARY QUESTION IN A
SEC 7 CASE IS WHETHER THE EFFECT OF THE CHALLENGED ACQUISITION "MAY
SUBSTANTIALLY LESSEN COMPETITION."  ANTE, P. 550.  BUT ANY RESOLUTION
OF THIS QUESTION NECESSARILY INVOLVES A STUDY OF STATISTICS AND OTHER
EVIDENCE BEARING UPON MARKET SHARES, MARKET TRENDS, NUMBER OF
COMPETITORS AND THE LIKE.  OBVIOUSLY SUCH FIGURES WILL VARY DEPENDING
UPON WHAT GEOGRAPHIC AREA IS CHOSEN AS RELEVANT, AND THE POSSIBILITIES
FOR "GERRYMANDERING" ARE LIMITLESS.  THE SENATE REPORT WHICH DISCUSSES
THE "SECTION OF THE COUNTRY" REQUIREMENT, S. REP. NO. 1775, 81ST CONG.,
2D SESS., 5-6 (1950), NOTES THAT IT "WILL VARY WITH THE NATURE OF THE
PRODUCT" SO AS TO DETERMINE AN "ECONOMICALLY SIGNIFICANT" AREA IN WHICH
TO MEASURE A CHANGE IN THE LEVEL OF COMPETITION.  ID., AT 5.  "IN
DETERMINING THE AREA OF EFFECTIVE COMPETITION FOR A GIVEN PRODUCT," THE
REPORT CONTINUES, "IT WILL BE NECESSARY TO DECIDE WHAT COMPRISES AN
APPRECIABLE SEGMENT OF THE MARKET.  AN APPRECIABLE SEGMENT OF THE
MARKET MAY NOT ONLY BE A SEGMENT WHICH COVERS AN APPRECIABLE SEGMENT OF
THE TRADE, BUT IT MAY ALSO BE A SEGMENT WHICH IS LARGELY SEGREGATED
FROM, INDEPENDENT OF, OR NOT AFFECTED BY THE TRADE IN THAT PRODUCT IN
OTHER PARTS OF THE COUNTRY."  ID., AT 6. 

THE CASES UNDER SEC 7 HAVE ESTABLISHED A FLEXIBLE, BUT WORKABLE,
APPROACH TO THE QUESTION OF GEOGRAPHIC MARKET.  IN BROWN SHOE CO. V.
UNITED STATES, 370 U.S. 294, THE COURT RECOGNIZED THAT A TEST FOR AN
APPROPRIATE GEOGRAPHIC MARKET HAD BEEN PRESCRIBED BY CONGRESS, 370
U.S., AT 336, AND THAT IT MUST "'CORRESPOND TO THE COMMERCIAL
REALITIES' OF THE INDUSTRY AND BE ECONOMICALLY SIGNIFICANT."  370 U.S.,
AT 336-337.  (FN1)  THE DETERMINATION OF RELEVANT GEOGRAPHIC MARKET
RECEIVED MORE DETAILED STUDY IN UNITED STATES V. PHILADELPHIA NAT.
BANK, 374 U.S. 321.  THE COURT THERE SAW THE "PROPER QUESTION" AS
FRAMED TO ASCERTAIN "NOT WHERE THE PARTIES TO THE MERGER DO BUSINESS OR
EVEN WHERE THEY COMPETE, BUT WHERE, WITHIN THE AREA OF COMPETITIVE
OVERLAP, THE EFFECT OF THE MERGER ON COMPETITION WILL BE DIRECT AND
IMMEDIATE."  374 U.S., AT 357. 

THE APPROPRIATE GEOGRAPHIC AREA IN WHICH TO EXAMINE THE EFFECTS OF AN
ACQUISITION IS AN AREA IN WHICH THE PARTIES TO THE MERGER OR
ACQUISITION COMPETE, AND AROUND WHICH THERE EXIST ECONOMIC BARRIERS
THAT SIGNIFICANTLY IMPEDE THE ENTRY OF NEW COMPETITORS.  OF COURSE, AS
PHILADELPHIA NATIONAL BANK AND COMMENTATORS  (FN2) HAVE NOTED, NO SUCH
DESIGNATION IS PERFECT, FOR ALL GEOGRAPHIC MARKETS ARE TO SOME EXTENT
INTERCONNECTED, AND OVER TIME ANY BARRIER MAY BE OVERCOME OR MAY
DISAPPEAR OWING TO STRUCTURAL OR TECHNOLOGICAL CHANGES IN THE INDUSTRY,
E.G., REFRIGERATION WHICH WIDENED MARKETS FOR "PERISHABLE" FOODS. 
THUS, IN PHILADELPHIA NATIONAL BANK, IT WAS RECOGNIZED THAT LARGE
BORROWERS AND DEPOSITORS OPERATE IN SOMETHING LIKE A NATIONAL BANKING
MARKET, AND THAT VERY SMALL BORROWERS AND DEPOSITORS ARE LIKELY TO
CONFINE THEMSELVES TO BANKS IN THEIR IMMEDIATE NEIGHBORHOOD. 
NEVERTHELESS, THE COURT WAS ABLE TO FIND A FOUR-COUNTY AREA IN
METROPOLITAN PHILADELPHIA TO BE A RELEVANT "SECTION OF THE COUNTRY" IN
WHICH TO MEASURE THAT MERGER.  SOME OF THE CRITERIA CITED THERE AS
SUPPORTING SUCH A DETERMINATION WERE THE CONVENIENCE OF LOCATION FOR
ALL BUT THE LARGEST BANK CUSTOMERS AS AN IMPORTANT FACTOR LIMITING
COMPETITION BY OUTSIDERS, THE CONCENTRATION OF THE DEFENDANT'S BUSINESS
IN THAT REGION, AND ADMINISTRATIVE DESIGNATIONS OF THAT REGION AS AN
"AREA OF EFFECTIVE COMPETITION."  374 U.S., AT 359-361.  SEE ALSO TAMPA
ELEC.  CO. V. NASHVILLE COAL CO., 365 U.S. 320, 327, 330-333. 

        II. 

IN THE CASE BEFORE US THE GOVERNMENT HAS IN MY OPINION MADE A PRIMA
FACIE SHOWING THAT THE STATE OF WISCONSIN AND THE THREE-STATE AREA
(FN3) ARE BOTH RELEVANT SECTIONS OF THE COUNTRY FOR MEASURING THE
EFFECTS OF THIS MERGER.  THAT IS, ON THE BASIS OF THE EVIDENCE THUS FAR
SUBMITTED, I BELIEVE THE GOVERNMENT HAS MADE A SUFFICIENT SHOWING THAT
SIGNIFICANT BARRIERS EXIST TO PREVENT OUTSIDE BREWERS FROM ENTERING THE
WISCONSIN MARKET AS EFFECTIVE COMPETITORS TO THOSE BREWERS ALREADY
MARKETING BEER THERE. 

AS A PRELIMINARY MATTER, IT IS CLEAR THAT PABST AND BLATZ BOTH CARRY
ON SUBSTANTIAL BUSINESS AND ARE DIRECT COMPETITORS IN WISCONSIN.  ABOUT
13% OF PABST'S SALES IN 1957, THE YEAR BEFORE THE MERGER, WERE MADE IN
WISCONSIN, WHERE PABST MAINTAINED ONE OF ITS FOUR BREWERIES.  BLATZ
MAINTAINED ITS ONLY BREWERY IN WISCONSIN, WHERE IT SOLD 31% OF ITS BEER
IN 1957.  IT IS THUS CLEAR THAT THE TWO BEERS WERE IMPORTANT
COMPETITORS IN THAT AREA; INDEED BLATZ WAS THE LEADING SELLER IN
WISCONSIN AND PABST THE FOURTH LARGEST.  THESE STATISTICS BECOME
MEANINGFUL FOR ANTITRUST PURPOSES IN THE CONTEXT OF THE FURTHER
EVIDENCE SHOWING SUBSTANTIAL BARRIERS TO BREWERS WHO WERE NOT THEN
SELLING BEER IN WISCONSIN. 

THE SALES STATISTICS SUBMITTED BY THE GOVERNMENT SHOW NOT ONLY A HIGH
PERCENTAGE OF THE WISCONSIN MARKET DOMINATED BY PABST AND BLATZ, BUT
ALSO A PATTERN OF LOCAL CONCENTRATION IN THE SALE OF BEER THERE AND
THROUGHOUT THE COUNTRY.  WISCONSIN, WITH ABOUT THE HIGHEST PER CAPITA
BEER CONSUMPTION LEVEL IN THE COUNTRY, WAS DOMINATED BY SUBSTANTIALLY
THE SAME GROUP OF BREWERS MAINTAINING SUBSTANTIALLY THE SAME MARKET
SHARES YEAR AFTER YEAR WITHOUT SERIOUS CHALLENGE FROM OTHER BREWERS
OPERATING IN OTHER SECTORS OF THE COUNTRY.  (FN4)  THIS PICTURE OF
LOCAL CONCENTRATION IN VARIOUS REGIONAL MARKETS IS SUPPORTED BY
EVIDENCE THAT BREWERS ARE ABLE TO SELL THE SAME BEER IN DIFFERENT
STATES FOR DIFFERENT PRICES (EXCLUSIVE OF TRANSPORTATION COST). 
ALTHOUGH THERE IS NO DIRECT EVIDENCE IN THE RECORD THAT BEER IS SUBJECT
TO HIGH TRANSPORTATION COSTS, WHICH WOULD OF COURSE BE HIGHLY
PERSUASIVE EVIDENCE SUPPORTING THE LOCAL-MARKET THEORY, IT IS RELEVANT
THAT ABOUT 90% OF BEER SOLD IN WISCONSIN COMES FROM BREWERIES LOCATED
IN THAT STATE OR NEARBY IN MINNESOTA.  INDEED, IN 1959 THE BLATZ
BREWERY IN WISCONSIN WAS CLOSED DOWN, AND BLATZ BEER WAS BREWED IN THE
FOUR PABST BREWERIES, BECAUSE "DECENTRALIZATION" WAS CONSIDERED MORE
EFFICIENT.  TO THE EXTENT THAT IT IS TRUE THAT LOCAL BREWERIES HAVE AN
ADVANTAGE IN TERMS OF EFFICIENCY AND THUS COST, A SIGNIFICANT BARRIER
EXISTS TO BREWERS WHO WISH TO SELL IN WISCONSIN BUT BREW THEIR BEER IN
OTHER AREAS OF THE COUNTRY.  THUS, IN TERMS OF THE STRUCTURE OF BEER
MARKETING AS REFLECTED IN SALES STATISTICS AND BREWERY LOCATION THE
RECORD SUPPORTS THE RELEVANCY OF WISCONSIN AS A DISTINGUISHABLE AND
ECONOMICALLY SIGNIFICANT MARKET FOR THE SALE OF BEER. 

THIS PICTURE OF BEER COMPETITION AS ESSENTIALLY A LOCALIZED OR
REGIONAL MATTER IS BUTTRESSED BY EVIDENCE OF MARKETING TECHNIQUES USED
BY THE INDUSTRY.  BEER IS NOT A FUNGIBLE COMMODITY LIKE WHEAT; PRODUCT
DIFFERENTIATION IS IMPORTANT, AND THE ORDINARY CONSUMER IS LIKELY TO
CHOOSE A PARTICULAR BRAND RATHER THAN PURCHASE ANY BEER
INDISCRIMINATELY.  THE RECORD DEMONSTRATES A RECOGNITION IN THE
INDUSTRY THAT A SUCCESSFUL SALES PROGRAM RELIES TO A LARGE EXTENT ON
CONSUMER RECOGNITION AND PREFERENCE FOR PARTICULAR BRANDS, AND THAT
THIS PREFERENCE MUST BE BUILT UP THROUGH INTENSIVE ADVERTISING AND
OTHER PROMOTIONAL TECHNIQUES.  THERE IS EVIDENCE IN THE RECORD
REGARDING EFFORTS BY PABST AND BLATZ TO ENTER NEW OR UNDEVELOPED
MARKETS IN THIS WAY, AND THE INFERENCE IS INESCAPABLE THAT WERE A
BREWER FROM, SAY, COLORADO, INTERESTED IN ENTERING THE WISCONSIN
MARKET, A GREAT DEAL OF COSTLY PRELIMINARY PROMOTIONAL ACTIVITY WOULD
BE REQUIRED BEFORE SIZABLE WISCONSIN SALES COULD BE EXPECTED.  IN
ADDITION, THE RECORD INDICATES THAT BEER IS SOLD THROUGH DISTRIBUTION
NETWORKS OPERATING ON REGIONAL, STATEWIDE, AND LOCAL LEVELS.  THERE ARE
NUMEROUS EXAMPLES IN THE RECORD OF THE HIGHLY SPECIALIZED SALESMANSHIP
NEEDED TO INDUCE LOCAL RETAIL SELLERS TO CARRY, DISPLAY, AND ADVERTISE
NEW BRANDS OF BEER. 

THIS HEAVY EMPHASIS ON CONSUMER RECOGNITION AND PROMOTIONAL
TECHNIQUES IN THE MARKETING OF BEER SUPPORTS THE CONCLUSION THAT THERE
DOES EXIST A SUBSTANTIAL BARRIER TO A NEW COMPETITOR IN A REGIONAL
MARKET SUCH AS WISCONSIN.  TO ENTER THIS MARKET THE NEW ENTRANT MUST BE
PREPARED TO INCUR CONSIDERABLE EXPENSE OVER A SUBSTANTIAL PERIOD OF
TIME CREATING A DISTRIBUTION NETWORK AND ADVERTISING HIS BRAND IN ORDER
TO COMPETE MORE OR LESS ON A PARITY WITH AN ESTABLISHED SELLER IN THE
WISCONSIN MARKET. 

A FURTHER FACTOR, THE PERVASIVE STATE REGULATION OF THE SALE AND
PROMOTION OF ALCOHOLIC BEVERAGES, WELL DOCUMENTED IN THE RECORD,
SUPPORTS THE ACCEPTABILITY OF WISCONSIN AS A RELEVANT GEOGRAPHIC MARKET
FOR BEER.  METHODS OF SALES PROMOTION PERMITTED IN ONE STATE ARE
UNLAWFUL IN OTHERS.  STATE REGULATIONS GOVERN LABELING, SIZE OF
CONTAINERS, ALCOHOLIC CONTENT OF BEER, SHIPPING PROCEDURES, AND CREDIT
ARRANGEMENTS WITH WHOLESALERS.  A BREWER WISHING TO ENTER THE WISCONSIN
MARKET DOES NOT MERELY START TRANSPORTING BEER TO MILWAUKEE; HE MUST
COMPLY WITH THESE VARIOUS STATE REQUIREMENTS, WHICH MAY DIFFER FROM
THOSE IN THE STATES IN WHICH HE HAS ALWAYS DEALT.  ALTHOUGH THIS FACTOR
MAY NOT BY ITSELF BE AN EFFECTIVE BARRIER TO DISTANT COMPETITORS, IT
DOES REINFORCE THE OTHER FACTORS EXAMINED IN JUSTIFYING THE CONCLUSION
THAT THERE IS A STATE OR REGIONAL MARKET FOR BEER. 

ALL OF THIS, TAKEN IN THE CONTEXT OF A PRIMA FACIE CASE, SUPPORTS THE
PROPOSITION THAT WISCONSIN IS AN IDENTIFIABLE "SECTION OF THE COUNTRY"
PRESENTING IMPEDIMENTS TO THE ENTRY OF NEW COMPETITORS AND INSULATING
THOSE ALREADY WITHIN THE MARKET.  IN TERMS OF ANTITRUST CONSEQUENCES,
THIS MEANS THAT THOSE ALREADY WITHIN SUCH A LOCAL MARKET CAN ENGAGE IN
OLIGOPOLISTIC PRICING OR OTHER PRACTICES WITHOUT A VERY REAL THREAT
THAT BREWERS OPERATING IN OTHER AREAS COULD EASILY, AND WITHIN A
REASONABLY SHORT TIME, ENTER THE WISCONSIN MARKET AS EFFECTIVE
COMPETITORS OF THOSE ALREADY ENTRENCHED THERE. 

IT SHOULD BE EMPHASIZED THAT WE ARE FACED HERE ONLY WITH A DISMISSAL
AFTER THE PRESENTATION OF THE GOVERNMENT'S CASE.  ON REMAND, THE
APPELLEES CAN OF COURSE ATTEMPT TO REFUTE THIS SHOWING BY INTRODUCING
EVIDENCE DEMONSTRATING EITHER THAT THESE ASSERTED BARRIERS DO NOT IN
PRACTICE EXIST, OR THAT WHEN SEEN IN LIGHT OF OTHER FACTORS THEY ARE SO
UNIMPORTANT THAT BREWERS WHO PRESENTLY DO NOT SELL IN THE WISCONSIN
MARKET ARE NOT IN FACT APPRECIABLY HINDERED FROM ENTERING AS EFFECTIVE
COMPETITORS. 

            III. 

THE TRIAL COURT ALSO FOUND THAT VIEWING THE ENTIRE CONTINENTAL UNITED
STATES AS THE RELEVANT MARKET, THE EVIDENCE SUBMITTED DID NOT SUSTAIN
THE GOVERNMENT'S CONTENTION THAT THE ACQUISITION MAY SUBSTANTIALLY
LESSEN COMPETITION.  I WOULD NOT DISTURB THAT CONCLUSION.  I DO NOT OF
COURSE PASS UPON THE SUFFICIENCY OF THE EVIDENCE TO ESTABLISH A PRIMA
FACIE VIOLATION OF SEC 7 WITHIN WISCONSIN OR THE THREE-STATE AREA, AN
ISSUE WHICH THE DISTRICT COURT HAD NO OCCASION TO REACH IN VIEW OF ITS
DETERMINATION THAT NEITHER OF THESE SECTIONS WAS A RELEVANT MARKET. 

FOR THESE REASONS I BELIEVE THE DISTRICT COURT ERRED IN DISMISSING
THE COMPLAINT AT THE CLOSE OF THE GOVERNMENT'S CASE. 

FN1  SEE IN ADDITION MY CONCURRING OPINION IN BROWN, 370 U.S., AT 368
369. 

FN2  SEE, E.G., BOCK, MERGERS AND MARKETS 35-42 (1960); KAYSEN &
TURNER, ANTITRUST POLICY 101-102 (1959); MARTIN, MERGERS AND THE
CLAYTON ACT 321-322 (1959). 

FN3  THE EVIDENCE IN THE RECORD SUPPORTING THE GOVERNMENT'S
CONTENTION THAT THE THREE-STATE AREA IS A RELEVANT GEOGRAPHIC MARKET IN
WHICH TO MEASURE THE EFFECTS OF THIS ACQUISITION IS NOT SIGNIFICANTLY
DIFFERENT FROM THAT SUPPORTING THE WISCONSIN MARKET.  FOR SIMPLICITY,
THIS OPINION WILL THEREFORE DISCUSS THESE CRITERIA ONLY IN TERMS OF THE
WISCONSIN MARKET. 

FN4  ONLY ONE-THIRD OF THE NATION'S BEER PRODUCERS SOLD BEER IN THE
WISCONSIN MARKET. 

MR. JUSTICE FORTAS, CONCURRING IN THE RESULT.    THE DISTRICT COURT
CLEARLY ERRED IN DISMISSING THE COMPLAINT.  THERE IS AMPLE PROOF THAT
THE EFFECT OF THIS ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION IN THE PRODUCTION AND SALE OF BEER IN WELL-DEFINED SECTIONS
OF THE COUNTRY.  BUT I CANNOT JOIN THE COURT'S OPINION BECAUSE,
CONTRARY TO THE STATEMENTS IN THAT OPINION, I BELIEVE THAT, IN SEC 7
CASES, IT IS THE GOVERNMENT'S DUTY, AS PLAINTIFF, TO PROVE THE "MARKET"
OR THE "SECTION OF THE COUNTRY" IN WHICH THE CLAIMED EFFECT OF THE
ACQUISITION IS MANIFEST.  THIS IS AN IMPORTANT, EVEN ESSENTIAL, ELEMENT
OF THE JUDGMENT WHICH MUST BE MADE IN A SEC 7 CASE.  THIS COURT HAS
CONSISTENTLY RECOGNIZED THIS.  SEE, E.G., BROWN SHOE CO. V. UNITED
STATES, 370 U.S. 294; UNITED STATES V. PHILADELPHIA NAT. BANK, 374 U.S.
321, 355-362.  IT IS TRUE THAT THE SEARCH FOR THE RELEVANT MARKET IS
FREQUENTLY COMPLICATED AND ELABORATED BEYOND REASON OR NEED - SOMETIMES
FOR PURPOSES OF DELAY OR OBSTRUCTION.  BUT THE SEARCH IS NEVERTHELESS
ESSENTIAL.  IT IS NOT A SNIPE HUNT. 

IN SOME SITUATIONS, ARITHMETIC AS TO THE MERGING COMPANIES' AGGREGATE
VOLUME OF SALES OF THE COMMODITY INVOLVED MAY BE IMPRESSIVE. 
SOMETIMES, THE RESULTING SIZE OF THE CONJOINED COMPANIES IS GREAT.  BUT
UNLESS IT CAN BE SHOWN THAT THE EFFECT MAY BE "SUBSTANTIALLY TO LESSEN
COMPETITION, OR TO TEND TO CREATE A MONOPOLY" IN A SPECIFIC SECTION OF
THE COUNTRY, COURTS ARE NOT AUTHORIZED TO CONDEMN THE ACQUISITION. 
CONGRESS HAS BEEN SPECIFIC IN AT LEAST THIS RESPECT, AND I CANNOT AGREE
THAT THIS STANDARD SHOULD BE DENIGRATED.  UNLESS BOTH THE PRODUCT AND
THE GEOGRAPHICAL MARKET ARE CAREFULLY DEFINED, NEITHER ANALYSIS NOR
RESULT IN ANTITRUST IS LIKELY TO BE OF ACCEPTABLE QUALITY.  COMPARE
MAJORITY AND DISSENTING OPINIONS IN UNITED STATES V. GRINNELL CORP.,
POST, P. 563 (INVOLVING SECS 1 AND 2 OF THE SHERMAN ACT). 
..END :




















UNITED STATES V. GRINNELL CORP. 384 U.S. 563 


NO. 73.  ARGUED MARCH 28-29, 1966.  - DECIDED JUNE 13, 1966.* - 236 F.
SUPP. 244, AFFIRMED AND REMANDED. 

*TOGETHER WITH NO. 74, GRINNELL CORP. V. UNITED STATES, NO. 75,
AMERICAN DISTRICT TELEGRAPH CO. V. UNITED STATES, NO. 76, HOLMES
ELECTRIC PROTECTIVE CO. V. UNITED STATES AND NO. 77, AUTOMATIC FIRE
ALARM CO. OF DELAWARE V. UNITED STATES, ALSO ON APPEAL FROM THE SAME
COURT. 


THE GOVERNMENT BROUGHT A CIVIL ACTION AGAINST GRINNELL CORPORATION AND
THREE AFFILIATED COMPANIES, WHICH IT CONTROLLED THROUGH PREPONDERANT
STOCK OWNERSHIP, ALLEGING VIOLATIONS OF SECS 1 AND 2 OF THE SHERMAN
ACT.  GRINNELL MANUFACTURES PLUMBING SUPPLIES AND FIRE SPRINKLER
SYSTEMS AND ITS AFFILIATES SUPPLY SUBSCRIBERS WITH FIRE AND BURGLAR
ALARM SERVICES FROM CENTRAL STATIONS THROUGH AUTOMATIC ALARM SYSTEMS
INSTALLED ON SUBSCRIBERS' PREMISES.  THE AFFILIATES, WHICH HAD
PARTICIPATED IN MARKET ALLOCATION AGREEMENTS, DISCRIMINATORY PRICE
MANIPULATION TO FORESTALL COMPETITION, AND THE ACQUISITION OF
COMPETITORS, HAD ACQUIRED 87% OF THE COUNTRY'S INSURANCE-COMPANY
ACCREDITED CENTRAL STATION PROTECTIVE SERVICE MARKET.  ONE AFFILIATED
COMPANY, AMERICAN DISTRICT TELEGRAPH CO. (ADT), ITSELF CONTROLS 73% OF
THE NATIONAL MARKET.  THE DISTRICT COURT TREATED THE ACCREDITED CENTRAL
STATION SERVICE BUSINESS AS A SINGLE "MARKET" AND HELD THAT THE
GEOGRAPHIC MARKET IS NATIONAL.  IT FOUND THAT THE FOUR COMPANIES HAD
VIOLATED SECS 1 AND 2 OF THE SHERMAN ACT AND ENTERED A DECREE ENJOINING
THEM FROM RESTRAINING TRADE OR MONOPOLIZING THE MARKET, ORDERING THE
FILING OF PRICE INFORMATION, ENJOINING THEM FROM ACQUIRING ANY OTHER
ENTERPRISE IN THAT MARKET, REQUIRING DIVESTITURE BY GRINNELL OF ITS
AFFILIATES, AND ENJOINING THEM FROM EMPLOYING THE PRESIDENT OF
GRINNELL.  ALL PARTIES CHALLENGED THE DECREE.  HELD: 

1.  THE EXISTENCE OF MONOPOLY POWER MAY BE INFERRED FROM THE
PREDOMINANT SHARE OF THE MARKET, AND WHERE GRINNELL AND ITS AFFILIATES
HAVE 87% OF THE ACCREDITED CENTRAL STATION SERVICE BUSINESS THERE IS NO
DOUBT THEY HAVE MONOPOLY POWER, WHICH THEY ACHIEVED IN PART BY UNLAWFUL
AND EXCLUSIONARY PRACTICES.  PP. 570-571, 576. 

2.  THE DISTRICT COURT WAS JUSTIFIED IN TREATING THE ACCREDITED
CENTRAL STATION SERVICE BUSINESS AS A SINGLE MARKET.  PP. 571-575. 

(A)  THERE IS NO BARRIER TO COMBINING IN A SINGLE MARKET A NUMBER OF
DIFFERENT PRODUCTS OR SERVICES WHERE THE COMBINATION REFLECTS
COMMERCIAL REALITIES.  HERE THERE IS A SINGLE BASIC SERVICE, THE
PROTECTION OF PROPERTY THROUGH USE OF A CENTRAL STATION, THAT MUST BE
COMPARED WITH ALL OTHER FORMS OF PROPERTY PROTECTION.  P. 572. 

(B)  JUST AS UNDER SEC 7 OF THE CLAYTON ACT'S "LINE OF COMMERCE," A
"CLUSTER OF SERVICES" MARKS THE APPROPRIATE MARKET FOR "PART" OF
COMMERCE WITHIN THE MEANING OF SEC 2 OF THE SHERMAN ACT.  PP. 572-573. 

(C)  ACCREDITED, AS DISTINGUISHED FROM NONACCREDITED CENTRAL STATION
SERVICE, IS A RELEVANT PART OF COMMERCE, WITH SPECIFIC REQUIREMENTS,
RECOGNITION AND APPROVAL BY INSURANCE COMPANIES, AND DISTINCT CUSTOMER
NEEDS AND DEMANDS.  P. 575. 

3.  THE GEOGRAPHIC MARKET FOR THE ACCREDITED CENTRAL STATION SERVICE,
AS THE DISTRICT COURT FOUND, IS A NATIONAL ONE.  WHILE THE MAIN
ACTIVITIES OF AN INDIVIDUAL CENTRAL STATION MAY BE LOCAL, THE BUSINESS
OF PROVIDING SUCH SERVICE IS OPERATED ON A NATIONAL LEVEL, WITH
NATIONAL PLANNING AND AGREEMENTS COVERING ACTIVITIES IN MANY STATES. 
PP. 575-576. 

4.  ADEQUATE RELIEF IN A MONOPOLIZATION CASE SHOULD TERMINATE THE
COMBINATION AND ELIMINATE THE ILLEGAL CONDUCT, AND RENDER IMPOTENT THE
MONOPOLY POWER FOUND TO BE IN VIOLATION OF THE ACT.  SCHINE THEATRES V.
UNITED STATES, 334 U.S. 110, 128-129.  PP. 577-580. 

(A)  THE MERE DISSOLUTION OF THE COMBINATION BY GRINNELL'S
DIVESTITURE OF ITS AFFILIATES WILL NOT REACH THE ROOT OF THE EVIL;
THERE MUST BE SOME DIVESTITURE ON THE PART OF ADT, WITH 73% OF THE
MARKET, TO BE DETERMINED BY THE DISTRICT COURT.  PP. 577-578. 

(B)  ON THE RECORD IT APPEARS THAT ADT'S REQUIREMENTS OF FIVE-YEAR
CONTRACTS AND RETENTION OF TITLE TO EQUIPMENT INSTALLED ON SUBSCRIBERS'
PREMISES CONSTITUTE SUBSTANTIAL BARRIERS TO COMPETITION AND RELIEF
AGAINST THEM BY THE DISTRICT COURT IS APPROPRIATE.  P. 578. 

(C)  A PROVISION THAT THE COMPANIES BE REQUIRED TO SELL DEVICES
MANUFACTURED BY THEM FOR USE IN FURNISHING CENTRAL STATION SERVICE IS
INADEQUATE UNLESS PURCHASERS ARE ASSURED OF REPLACEMENT PARTS TO
MAINTAIN THOSE SYSTEMS.  P. 579. 

(D)  THE DISTRICT COURT SHOULD RECONSIDER ITS DENIAL OF THE
GOVERNMENT'S REQUEST FOR "VISITATION RIGHTS," THAT IS, REQUIRING
REPORTS, EXAMINING DOCUMENTS AND INTERVIEWING COMPANY PERSONNEL, RELIEF
COMMONLY GRANTED TO DETERMINE COMPLIANCE WITH AN ANTITRUST DECREE.  P.
579. 

(E)  WHILE THE BARRING OF GRINNELL'S PRESIDENT FROM EMPLOYMENT MIGHT
HAVE BEEN APPROPRIATE IN A CASE WHERE PREDATORY CONDUCT WAS
CONSPICUOUS, SUCH IS NOT THE SITUATION HERE.  P. 579. 

(F)  ON REMAND THE GENERAL TERMS OF THE RESTRAINING ORDER SHOULD BE
RECAST SO THAT THE PRECISE PRACTICES IN VIOLATION OF THE ACT ARE
SPECIFICALLY ENJOINED.  PP. 579-580. 

(G)  THE DISSOLUTION OF THE COMBINATION AND THE PROSCRIPTION AGAINST
ACQUIRING FIRMS IN THE ACCREDITED CENTRAL STATION BUSINESS ARE FULLY
WARRANTED.  P. 580. 

5.  THE CLAIM OF BIAS AND PREJUDICE AGAINST THE DISTRICT JUDGE WHO
TRIED THE CASE BELOW IS NOT MADE OUT.  PP. 580-583. 

UNITED STATES V. GRINNELL CORP. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN IMPORTANT QUESTION UNDER SEC 2 OF THE SHERMAN
ACT,  (FN1) WHICH MAKES IT AN OFFENSE FOR ANY PERSON TO "MONOPOLIZE
...  ANY PART OF THE TRADE OR COMMERCE AMONG THE SEVERAL STATES."  THIS
IS A CIVIL SUIT BROUGHT BY THE UNITED STATES AGAINST GRINNELL
CORPORATION (GRINNELL), AMERICAN DISTRICT TELEGRAPH CO. (ADT), HOLMES
ELECTRIC PROTECTIVE CO. (HOLMES) AND AUTOMATIC FIRE ALARM CO. OF
DELAWARE (AFA).  THE DISTRICT COURT HELD FOR THE GOVERNMENT AND ENTERED
A DECREE.  ALL PARTIES APPEAL,  (FN2) THE UNITED STATES BECAUSE IT
DEEMS THE RELIEF INADEQUATE AND THE DEFENDANTS BOTH ON THE MERITS AND
ON THE RELIEF AND ON THE GROUND THAT THE DISTRICT COURT DENIED THEM A
FAIR TRIAL.  WE NOTED PROBABLE JURISDICTION.  381 U.S. 910. 

GRINNELL MANUFACTURES PLUMBING SUPPLIES AND FIRE SPRINKLER SYSTEMS. 
IT ALSO OWNS 76% OF THE STOCK OF ADT, 89% OF THE STOCK OF AFA, AND 100%
OF THE STOCK OF HOLMES.  (FN3)  ADT PROVIDES BOTH BURGLARY AND FIRE
PROTECTION SERVICES; HOLMES PROVIDES BURGLARY SERVICES ALONE; AFA
SUPPLIES ONLY FIRE PROTECTION SERVICE.  EACH OFFERS A CENTRAL STATION
SERVICE UNDER WHICH HAZARD-DETECTING DEVICES INSTALLED ON THE PROTECTED
PREMISES AUTOMATICALLY TRANSMIT AN ELECTRIC SIGNAL TO A CENTRAL
STATION.  (FN4)  THE CENTRAL STATION IS MANNED 24 HOURS A DAY.  UPON
RECEIPT OF A SIGNAL, THE CENTRAL STATION, WHERE APPROPRIATE, DISPATCHES
GUARDS TO THE PROTECTED PREMISES AND NOTIFIES THE POLICE OR FIRE
DEPARTMENT DIRECT.  THERE ARE OTHER FORMS OF PROTECTIVE SERVICES.  BUT
THE RECORD SHOWS THAT SUBSCRIBERS TO ACCREDITED CENTRAL STATION SERVICE
(I.E., THAT APPROVED BY THE INSURANCE UNDERWRITERS) RECEIVE REDUCTIONS
IN THEIR INSURANCE PREMIUMS THAT ARE SUBSTANTIALLY GREATER THAN THE
REDUCTION RECEIVED BY THE USERS OF OTHER KINDS OF PROTECTION SERVICE. 
IN 1961 ACCREDITED COMPANIES IN THE CENTRAL STATION SERVICE BUSINESS
GROSSED $65,000,000.  ADT, HOLMES, AND AFA ARE THE THREE LARGEST
COMPANIES IN THE BUSINESS IN TERMS OF REVENUE:  ADT (WITH 121 CENTRAL
STATIONS IN 115 CITIES) HAS 73% OF THE BUSINESS; HOLMES (WITH 12
CENTRAL STATIONS IN THREE LARGE CITIES) HAS 12.5%; AFA (WITH THREE
CENTRAL STATIONS IN THREE LARGE CITIES) HAS 2%.  THUS THE THREE
COMPANIES THAT GRINNELL CONTROLS HAVE OVER 87% OF THE BUSINESS. 

OVER THE YEARS ADT PURCHASED THE STOCK OR ASSETS OF 27 COMPANIES
ENGAGED IN THE BUSINESS OF PROVIDING BURGLAR OR FIRE ALARM SERVICES. 
HOLMES ACQUIRED THE STOCK OR ASSETS OF THREE BURGLAR ALARM COMPANIES IN
NEW YORK CITY USING A CENTRAL STATION.  OF THESE 30, THE OFFICIALS OF
SEVEN AGREED NOT TO ENGAGE IN THE PROTECTIVE SERVICE BUSINESS IN THE
AREA FOR PERIODS RANGING FROM FIVE YEARS TO PERMANENTLY.  AFTER
GRINNELL ACQUIRED CONTROL OF THE OTHER DEFENDANTS, THE LATTER CONTINUED
IN THEIR ATTEMPTS TO ACQUIRE CENTRAL STATION COMPANIES - OFFERS BEING
MADE TO AT LEAST EIGHT COMPANIES BETWEEN THE YEARS 1955 AND 1961,
INCLUDING FOUR OF THE FIVE LARGEST NONDEFENDANT COMPANIES IN THE
BUSINESS.  WHEN THE PRESENT SUIT WAS FILED, EACH OF THOSE DEFENDANTS
HAD OUTSTANDING AN OFFER TO PURCHASE ONE OF THE FOUR LARGEST
NONDEFENDANT COMPANIES. 

IN 1906, PRIOR TO THE AFFILIATION OF ADT AND HOLMES, THEY MADE A
WRITTEN AGREEMENT WHEREBY ADT TRANSFERRED TO HOLMES ITS BURGLAR ALARM
BUSINESS IN A MAJOR PART OF THE MIDDLE ATLANTIC STATES AND AGREED TO
REFRAIN FOREVER FROM ENGAGING IN THAT BUSINESS IN THAT AREA, WHILE
HOLMES TRANSFERRED TO ADT ITS WATCH SIGNAL BUSINESS AND AGREED TO LIMIT
ITS ACTIVITIES TO BURGLAR ALARM SERVICE AND NIGHT WATCH SERVICE FOR
FINANCIAL INSTITUTIONS.  WHILE THIS AGREEMENT WAS MODIFIED SEVERAL
TIMES AND TERMINATED IN 1947, IN 1961 HOLMES STILL RESTRICTED ITS
BUSINESS TO BURGLAR ALARM SERVICE AND OPERATED ONLY IN THOSE AREAS
WHICH HAD BEEN ALLOCATED TO IT UNDER THE 1906 AGREEMENT.  SIMILARLY,
ADT CONTINUED TO REFRAIN FROM SUPPLYING BURGLAR ALARM SERVICE IN THOSE
AREAS EARLIER ALLOCATED TO HOLMES. 

IN 1907 GRINNELL ENTERED INTO A SERIES OF AGREEMENTS WITH THE OTHER
DEFENDANT COMPANIES AND WITH AUTOMATIC FIRE PROTECTION CO. TO THE
FOLLOWING EFFECT: 

AFA RECEIVED THE EXCLUSIVE RIGHT TO PROVIDE CENTRAL STATION SPRINKLER
SUPERVISORY AND WATERFLOW ALARM AND AUTOMATIC FIRE ALARM SERVICE IN NEW
YORK CITY, BOSTON AND PHILADELPHIA, AND AGREED NOT TO PROVIDE BURGLAR
ALARM SERVICE IN THOSE CITIES OR CENTRAL STATION SERVICE ELSEWHERE IN
THE UNITED STATES. 

AUTOMATIC FIRE PROTECTION CO. OBTAINED THE EXCLUSIVE RIGHT TO PROVIDE
CENTRAL STATION SPRINKLER SUPERVISORY AND WATERFLOW ALARM SERVICE
EVERYWHERE ELSE IN THE UNITED STATES EXCEPT FOR THE THREE CITIES IN
WHICH AFA RECEIVED THAT EXCLUSIVE RIGHT, AND AGREED NOT TO ENGAGE IN
BURGLAR ALARM SERVICE. 

ADT RECEIVED THE EXCLUSIVE RIGHT TO RENDER BURGLAR ALARM AND
NIGHTWATCH SERVICE THROUGHOUT THE UNITED STATES.  (UNDER ADT'S 1906
AGREEMENT WITH HOLMES, HOWEVER, IT COULD NOT PROVIDE BURGLAR ALARM
SERVICES IN THE AREAS FOR WHICH IT HAD GIVEN HOLMES THE EXCLUSIVE RIGHT
TO DO SO.)  IT AGREED NOT TO FURNISH SPRINKLER SUPERVISORY AND
WATERFLOW ALARM SERVICE ANYWHERE IN THE COUNTRY AND NOT TO FURNISH
AUTOMATIC FIRE ALARM SERVICE IN NEW YORK CITY, BOSTON OR PHILADELPHIA
(THE THREE CITIES ALLOCATED TO AFA).  ADT AGREED TO CONNECT TO ITS
CENTRAL STATIONS THE SYSTEMS INSTALLED BY AFA AND AUTOMATIC. 

GRINNELL AGREED TO FURNISH AND INSTALL ALL SPRINKLER SUPERVISORY AND
WATERFLOW ALARM ACTUATING DEVICES USED IN SYSTEMS THAT AFA AND
AUTOMATIC WOULD INSTALL, AND OTHERWISE NOT TO ENGAGE IN THE CENTRAL
STATION PROTECTION BUSINESS. 

AFA AND AUTOMATIC RECEIVED 25% OF THE REVENUE PRODUCED BY THE
SPRINKLER SUPERVISORY WATERFLOW ALARM SERVICE WHICH THEY PROVIDED IN
THEIR RESPECTIVE TERRITORIES; ADT AND GRINNELL RECEIVED 50% AND 25%,
RESPECTIVELY, OF THE REVENUE WHICH RESULTED FROM SUCH SERVICE.  THE
AGREEMENTS WERE TO CONTINUE UNTIL FEBRUARY 1954. 

THE AGREEMENTS REMAINED SUBSTANTIALLY UNCHANGED UNTIL 1949 WHEN ADT
PURCHASED ALL OF AUTOMATIC FIRE PROTECTION CO.'S RIGHTS UNDER IT FOR
$13,500,000.  AFTER THESE 1907 AGREEMENTS EXPIRED IN 1954, AFA
CONTINUED TO HONOR THE PRIOR DIVISION OF TERRITORIES; AND ADT AND AFA
ENTERED INTO A NEW CONTRACT PROVIDING FOR THE CONTINUED SHARING OF
REVENUES ON SUBSTANTIALLY THE SAME BASIS AS BEFORE.  (FN5)  IN 1954
GRINNELL AND ADT RENEWED AN AGREEMENT WITH A RHODE ISLAND COMPANY WHICH
RECEIVED THE EXCLUSIVE RIGHT TO RENDER CENTRAL STATION SERVICE WITHIN
RHODE ISLAND AT PRICES NO LOWER THAN THOSE OF ADT AND WHICH AGREED TO
USE CERTAIN EQUIPMENT SUPPLIED BY GRINNELL AND ADT AND TO SHARE ITS
REVENUES WITH THOSE COMPANIES.  ADT HAD AN INFORMAL AGREEMENT WITH A
COMPETING CENTRAL STATION COMPANY IN WASHINGTON, D.C., "THAT WE WOULD
NOT SOLICIT EACH OTHER'S ACCOUNTS." 

ADT OVER THE YEARS REDUCED ITS MINIMUM BASIC RATES TO MEET
COMPETITION AND RENEWED CONTRACTS AT SUBSTANTIALLY INCREASED RATES IN
CITIES WHERE IT HAD A MONOPOLY OF ACCREDITED CENTRAL STATION SERVICE. 
ADT THREATENED RETALIATION AGAINST FIRMS THAT CONTEMPLATED INAUGURATING
CENTRAL STATION SERVICE.  AND THE RECORD INDICATES THAT, IN
CONTEMPLATING OPENING A NEW CENTRAL STATION, ADT OFFICIALS FREQUENTLY
STRESSED THAT SUCH ACTION WOULD DETER THEIR COMPETITORS FROM OPENING A
NEW STATION IN THAT AREA. 

THE DISTRICT COURT FOUND THAT THE DEFENDANT COMPANIES HAD COMMITTED
PER SE VIOLATIONS OF SEC 1 OF THE SHERMAN ACT AS WELL AS SEC 2 AND
ENTERED A DECREE.  236 F. SUPP. 244. 

           I. 

THE OFFENSE OF MONOPOLY UNDER SEC 2 OF THE SHERMAN ACT HAS TWO
ELEMENTS:  (1) THE POSSESSION OF MONOPOLY POWER IN THE RELEVANT MARKET
AND (2) THE WILLFUL ACQUISITION OR MAINTENANCE OF THAT POWER AS
DISTINGUISHED FROM GROWTH OR DEVELOPMENT AS A CONSEQUENCE OF A SUPERIOR
PRODUCT, BUSINESS ACUMEN, OR HISTORIC ACCIDENT.  WE SHALL SEE THAT THIS
SECOND INGREDIENT PRESENTS NO MAJOR PROBJEM HERE, AS WHAT WAS DONE IN
BUILDING THE EMPIRE WAS DONE PLAINLY AND EXPLICITLY FOR A SINGLE
PURPOSE.  IN UNITED STATES V. DU PONT & CO., 351 U.S. 377, 391, WE
DEFINED MONOPOLY POWER AS "THE POWER TO CONTROL PRICES OR EXCLUDE
COMPETITION."  THE EXISTENCE OF SUCH POWER ORDINARILY MAY BE INFERRED
FROM THE PREDOMINANT SHARE OF THE MARKET.  IN AMERICAN TOBACCO CO. V.
UNITED STATES, 328 U.S. 781, 797, WE SAID THAT "OVER TWO-THIRDS OF THE
ENTIRE DOMESTIC FIELD OF CIGARETTES, AND  ...  OVER 80% OF THE FIELD OF
COMPARABLE CIGARETTES" CONSTITUTED "A SUBSTANTIAL MONOPOLY."  IN UNITED
STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 429, 90% OF THE MARKET
CONSTITUTED MONOPOLY POWER.  IN THE PRESENT CASE, 87% OF THE ACCREDITED
CENTRAL STATION SERVICE BUSINESS LEAVES NO DOUBT THAT THE CONGERIES OF
THESE DEFENDANTS HAVE MONOPOLY POWER - POWER WHICH, AS OUR DISCUSSION
OF THE RECORD INDICATES, THEY DID NOT HESITATE TO WIELD - IF THAT
BUSINESS IS THE RELEVANT MARKET.  THE ONLY REMAINING QUESTION THEREFORE
IS, WHAT IS THE RELEVANT MARKET? 

IN CASE OF A PRODUCT IT MAY BE OF SUCH A CHARACTER THAT SUBSTITUTE
PRODUCTS MUST ALSO BE CONSIDERED, AS CUSTOMERS MAY TURN TO THEM IF
THERE IS A SLIGHT INCREASE IN THE PRICE OF THE MAIN PRODUCT.  THAT IS
THE TEACHING OF THE DU PONT CASE (SUPRA, AT 395, 404), VIZ., THAT
COMMODITIES REASONABLY INTERCHANGEABLE MAKE UP THAT "PART" OF TRADE OR
COMMERCE WHICH SEC 2 PROTECTS AGAINST MONOPOLY POWER. 

THE DISTRICT COURT TREATED THE ENTIRE ACCREDITED CENTRAL STATION
SERVICE BUSINESS AS A SINGLE MARKET AND WE THINK IT WAS JUSTIFIED IN SO
DOING.  DEFENDANTS ARGUE THAT THE DIFFERENT CENTRAL STATION SERVICES
OFFERED ARE SO DIVERSE THAT THEY CANNOT UNDER DU PONT BE LUMPED
TOGETHER TO MAKE UP THE RELEVANT MARKET.  FOR EXAMPLE, BURGLAR ALARM
SERVICES ARE NOT INTERCHANGEABLE WITH FIRE ALARM SERVICES.  THEY
FURTHER URGE THAT DU PONT REQUIRES THAT PROTECTIVE SERVICES OTHER THAN
THOSE OF THE CENTRAL STATION VARIETY BE INCLUDED IN THE MARKET
DEFINITION. 

BUT THERE IS HERE A SINGLE USE, I.E., THE PROTECTION OF PROPERTY,
THROUGH A CENTRAL STATION THAT RECEIVES SIGNALS.  IT IS THAT SERVICE,
ACCREDITED, THAT IS UNIQUE AND THAT COMPETES WITH ALL THE OTHER FORMS
OF PROPERTY PROTECTION.  WE SEE NO BARRIER TO COMBINING IN A SINGLE
MARKET A NUMBER OF DIFFERENT PRODUCTS OR SERVICES WHERE THAT
COMBINATION REFLECTS COMMERCIAL REALITIES.  TO REPEAT, THERE IS HERE A
SINGLE BASIC SERVICE - THE PROTECTION OF PROPERTY THROUGH USE OF A
CENTRAL SERVICE STATION - THAT MUST BE COMPARED WITH ALL OTHER FORMS OF
PROPERTY PROTECTION. 

IN SEC 2 CASES UNDER THE SHERMAN ACT, AS IN SEC 7 CASES UNDER THE
CLAYTON ACT (BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 325) THERE
MAY BE SUBMARKETS THAT ARE SEPARATE ECONOMIC ENTITIES.  WE DO NOT
PURSUE THAT QUESTION HERE.  FIRST, WE DEAL WITH SERVICES, NOT WITH
PRODUCTS; AND SECOND, WE CONCLUDE THAT THE ACCREDITED CENTRAL STATION
IS A TYPE OF SERVICE THAT MAKES UP A RELEVANT MARKET AND THAT
DOMINATION OR CONTROL OF IT MAKES OUT A MONOPOLY OF A "PART" OF TRADE
OR COMMERCE WITHIN THE MEANING OF SEC 2 OF THE SHERMAN ACT.  THE
DEFENDANTS HAVE NOT MADE OUT A CASE FOR FRAGMENTIZING THE TYPES OF
SERVICES INTO LESSER UNITS. 

BURGLAR ALARM SERVICE IS IN A SENSE DIFFERENT FROM FIRE ALARM
SERVICE; FROM WATERFLOW ALARMS; AND SO ON.  BUT IT WOULD BE UNREALISTIC
ON THIS RECORD TO BREAK DOWN THE MARKET INTO THE VARIOUS KINDS OF
CENTRAL STATION PROTECTIVE SERVICES THAT ARE AVAILABLE.  CENTRAL
STATION COMPANIES RECOGNIZE THAT TO COMPETE EFFECTIVELY, THEY MUST
OFFER ALL OR NEARLY ALL TYPES OF SERVCICE.  (FN6)  THE DIFFERENT FORMS
OF ACCREDITED CENTRAL STATION SERVICE ARE PROVIDED FROM A SINGLE OFFICE
AND CUSTOMERS UTILIZE DIFFERENT SERVICES IN COMBINATION.  WE HELD IN
UNITED STATES V. PHILADELPHIA NAT. BANK, 374 U.S. 321, 356, THAT "THE
CLUSTER" OF SERVICES DENOTED BY THE TERM "COMMERCIAL BANKING" IS "A
DISTINCT LINE OF COMMERCE."  THERE IS, IN OUR VIEW, A COMPARABLE
CLUSTER OF SERVICES HERE.  THAT BANK CASE AROSE UNDER SEC 7 OF THE
CLAYTON ACT WHERE THE QUESTION WAS WHETHER THE EFFECT OF A MERGER "IN
ANY LINE OF COMMERCE" MAY BE "SUBSTANTIALLY TO LESSEN COMPETITION."  WE
SEE NO REASON TO DIFFERENTIATE BETWEEN "LINE" OF COMMERCE IN THE
CONTEXT OF THE CLAYTON ACT AND "PART" OF COMMERCE FOR PURPOSES OF THE
SHERMAN ACT.  SEE UNITED STATES V. FIRST NAT. BANK & TRUST CO., 376
U.S. 665, 667-668.  IN THE SEC 7 NATIONAL BANK CASE JUST MENTIONED,
SERVICES, NOT PRODUCTS IN THE MERCANTILE SENSE, WERE INVOLVED.  IN OUR
VIEW THE LUMPING TOGETHER OF VARIOUS KINDS OF SERVICES MAKES FOR THE
APPROPRIATE MARKET HERE AS IT DID IN THE SEC 7 CASE. 

THERE ARE, TO BE SURE, SUBSTITUTES FOR THE ACCREDITED CENTRAL STATION
SERVICE.  BUT NONE OF THEM APPEARS TO OPERATE ON THE SAME LEVEL AS THE
CENTRAL STATION SERVICE SO AS TO MEET THE INTERCHANGEABILITY TEST OF
THE DU PONT CASE.  NONAUTOMATIC AND AUTOMATIC LOCAL ALARM SYSTEMS
APPEAR ON THIS RECORD TO HAVE MARKED DIFFERENCES, NOT THE LOW DEGREE OF
DIFFERENTIATION REQUIRED OF SUBSTITUTE SERVICES AS WELL AS SUBSTITUTE
ARTICLES. 

WATCHMAN SERVICE IS FAR MORE COSTLY AND LESS RELIABLE.  SYSTEMS THAT
SET OFF AN AUDIBLE ALARM AT THE SITE OF A FIRE OR BURGLARY ARE CHEAPER
BUT OFTEN LESS RELIABLE.  THEY MAY BE INOPERABLE WITHOUT ANYONE'S
KNOWING IT.  MOREOVER, THERE IS A RISK THAT THE LOCAL RINGING OF AN
ALARM WILL NOT ATTRACT THE NEEDED ATTENTION AND HELP.  PROPRIETARY
SYSTEMS THAT A CUSTOMER PURCHASES AND OPERATES ARE AVAILABLE; BUT THEY
CAN BE USED ONLY BY A VERY LARGE BUSINESS OR BY GOVERNMENT AND ARE NOT
REALISTIC ALTERNATIVES FOR MOST CONCERNS.  THERE ARE ALSO PROTECTIVE
SERVICES CONNECTED DIRECTLY TO A MUNICIPAL POLICE OR FIRE DEPARTMENT. 
BUT MOST CITIES WITH AN ACCREDITED CENTRAL STATION DO NOT PERMIT
DIRECT, CONNECTED SERVICE FOR PRIVATE BUSINESSES.  THESE ALTERNATE
SERVICES AND DEVICES DIFFER, WE ARE TOLD, IN UTILITY, EFFICIENCY,
RELIABILITY, RESPONSIVENESS, AND CONTINUITY, AND THE RECORD SUSTAINS
THAT POSITION.  AND, AS NOTED, INSURANCE COMPANIES GENERALLY ALLOW A
GREATER REDUCTION IN PREMIUMS FOR ACCREDITED CENTRAL STATION SERVICE
THAN FOR OTHER TYPES OF PROTECTION. 

DEFENDANTS EARNESTLY URGE THAT DESPITE THESE DIFFERENCES, THEY FACE
COMPETITION FROM THESE OTHER MODES OF PROTECTION.  THEY SEEM TO US
SERIOUSLY TO OVERSTATE THE DEGREE OF COMPETITION, BUT WE RECOGNIZE THAT
(AS THE DISTRICT COURT FOUND) THEY "DO NOT HAVE UNFETTERED POWER TO
CONTROL THE PRICE OF THEIR SERVICES  ...  DUE TO THE FRINGE COMPETITION
OF OTHER ALARM OR WATCHMEN SERVICES."  236 F. SUPP., AT 254.  WHAT
DEFENDANTS OVERLOOK IS THAT THE HIGH DEGREE OF DIFFERENTIATION BETWEEN
CENTRAL STATION PROTECTION AND THE OTHER FORMS MEANS THAT FOR MANY
CUSTOMERS, ONLY CENTRAL STATION PROTECTION WILL DO.  THOUGH SOME
CUSTOMERS MAY BE WILLING TO ACCEPT HIGHER INSURANCE RATES IN FAVOR OF
CHEAPER FORMS OF PROTECTION, OTHERS WILL NOT BE WILLING OR ABLE TO RISK
SERIOUS INTERRUPTION TO THEIR BUSINESSES, EVEN THOUGH COVERED BY
INSURANCE, AND WILL THUS BE UNWILLING TO CONSIDER ANYTHING BUT CENTRAL
STATION PROTECTION. 

THE ACCREDITED, AS DISTINGUISHED FROM NONACCREDITED SERVICE, IS A
RELEVANT PART OF COMMERCE.  VIRTUALLY THE ONLY CENTRAL STATION
COMPANIES IN THE STATUS OF THE NONACCREDITED ARE THOSE THAT HAVE NOT
YET BEEN ABLE TO MEET THE STANDARDS OF THE RATING BUREAU.  THE
ACCREDITED ONES ARE INDEED THOSE THAT HAVE ACHIEVED, IN THE EYES OF
UNDERWRITERS, SUPERIORITIES THAT OTHER CENTRAL STATIONS DO NOT HAVE. 
THE ACCREDITED CENTRAL STATION IS LOCATED IN A BUILDING OF APPROVED
DESIGN, PROVIDED WITH AN EMERGENCY LIGHTING SYSTEM AND TWO ALTERNATE
MAIN POWER SOURCES, MANNED CONSTANTLY BY AT LEAST A REQUIRED MINIMUM OF
OPERATORS, PROVIDED WITH A DIRECT LINE TO FIRE HEADQUARTERS AND, WHERE
POSSIBLE, A DIRECT LINE TO A POLICE STATION; AND EQUIPPED WITH ALL THE
DEVICES, CIRCUITS AND EQUIPMENT MEETING THE REQUIREMENTS OF THE
UNDERWRITERS.  THESE STANDARDS ARE IMPORTANT AS INSURANCE CARRIERS
OFTEN REQUIRE ACCREDITED CENTRAL STATION SERVICE AS A CONDITION TO
WRITING INSURANCE.  THERE IS INDEED EVIDENCE THAT CUSTOMERS CONSIDER
THE UNACCREDITED SERVICE AS INFERIOR. 

WE ALSO AGREE WITH THE DISTRICT COURT THAT THE GEOGRAPHIC MARKET FOR
THE ACCREDITED CENTRAL STATION SERVICE IS NATIONAL.  THE ACTIVITIES OF
AN INDIVIDUAL STATION ARE IN A SENSE LOCAL AS IT SERVES, ORDINARILY,
ONLY THAT AREA WHICH IS WITHIN A RADIUS OF 25 MILES.  BUT THE RECORD
AMPLY SUPPORTS THE CONCLUSION THAT THE BUSINESS OF PROVIDING SUCH A
SERVICE IS OPERATED ON A NATIONAL LEVEL.  THERE IS NATIONAL PLANNING. 
THE AGREEMENTS WE HAVE DISCUSSED COVERED ACTIVITIES IN MANY STATES. 
THE INSPECTION, CERTIFICATION AND RATE-MAKING IS LARGELY BY NATIONAL
INSURERS.  THE APPELLANT ADT HAS A NATIONAL SCHEDULE OF PRICES, RATES,
AND TERMS, THOUGH THE RATES MAY BE VARIED TO MEET LOCAL CONDITIONS.  IT
DEALS WITH MULTISTATE BUSINESSES ON THE BASIS OF NATIONWIDE CONTRACTS. 
THE MANUFACTURING BUSINESS OF ADT IS INTERSTATE.  THE FACT THAT HOLMES
IS MORE NEARLY LOCAL THAN THE OTHERS DOES NOT SAVE IT, FOR IT IS PART
AND PARCEL OF THE COMBINE PRESIDED OVER AND CONTROLLED BY GRINNELL. 

AS THE DISTRICT COURT FOUND, THE RELEVANT MARKET FOR DETERMINING
WHETHER THE DEFENDANTS HAVE MONOPOLY POWER IS NOT THE SEVERAL LOCAL
AREAS WHICH THE INDIVIDUAL STATIONS SERVE, BUT THE BROADER NATIONAL
MARKET THAT REFLECTS THE REALITY OF THE WAY IN WHICH THEY BUILT AND
CONDUCT THEIR BUSINESS. 

WE HAVE SAID ENOUGH ABOUT THE GREAT HOLD THAT THE DEFENDANTS HAVE ON
THIS MARKET.  THE PERCENTAGE IS SO HIGH AS TO JUSTIFY THE FINDING OF
MONOPOLY.  AND, AS THE FACTS ALREADY RELATED INDICATE, THIS MONOPOLY
WAS ACHIEVED IN LARGE PART BY UNLAWFUL AND EXCLUSIONARY PRACTICES. 
THE RESTRICTIVE AGREEMENTS THAT PRE-EMPTED FOR EACH COMPANY A SEGMENT
OF THE MARKET WHERE IT WAS FREE OF COMPETITION OF THE OTHERS WERE ONE
DEVICE.  PRICING PRACTICES THAT CONTAINED COMPETITORS WERE ANOTHER. 
THE ACQUISITIONS BY GRINNELL OF ADT, AFA, AND HOLMES WERE STILL
ANOTHER.  GRINNELL LONG FACED A PROBLEM OF COMPETING WITH ADT.  THAT
WAS ONE REASON IT ACQUIRED AFA AND HOLMES.  PRIOR TO SETTLEMENT OF ITS
DISPUTE AND CONTROVERSY WITH ADT, GRINNELL PREPARED TO GO INTO THE
CENTRAL STATION SERVICE BUSINESS.   BY ACQUIRING ADT IN 1953, GRINNELL
ELIMINATED THAT ALTERNATIVE.  ITS CONTROL OF THE THREE OTHER DEFENDANTS
ELIMINATED ANY POSSIBILITY OF AN OUTBREAK OF COMPETITION THAT MIGHT
HAVE OCCURRED WHEN THE 1907 AGREEMENTS TERMINATED.  BY THOSE
ACQUISITIONS IT PERFECTED THE MONOPOLY POWER TO EXCLUDE COMPETITORS AND
FIX PRICES.  (FN7)

             II. 

THE FINAL DECREE ENJOINS THE DEFENDANTS IN GENERAL TERMS FROM
RESTRAINING TRADE OR ATTEMPTING OR CONSPIRING TO RESTRAIN TRADE IN THIS
PARTICULAR MARKET, FROM FURTHER MONOPOLIZING, AND ATTEMPTING OR
CONSPIRING TO MONOPOLIZE.  THE COURT ORDERED THE ALARM COMPANIES TO
FILE WITH THE DEPARTMENT OF JUSTICE STANDARD LISTS OF PRICES AND TERMS
AND EVERY QUOTATION TO CUSTOMERS THAT DEVIATED FROM THOSE LISTS AND
ENJOINED THE DEFENDANTS FROM ACQUIRING STOCK, ASSETS, OR BUSINESS OF
ANY ENTERPRISE IN THE MARKET.  GRINNELL WAS ORDERED TO FILE, NOT LATER
THAN APRIL 1, 1966, A PLAN OF DIVESTITURE OF ITS STOCK IN EACH OF THE
OTHER DEFENDANT COMPANIES.  IT WAS GIVEN THE OPTION EITHER TO SELL THE
STOCK OR DISTRIBUTE IT TO ITS STOCKHOLDERS OR COMBINE OR VARY THOSE
METHODS.  (FN8)  THE COURT FURTHER ENJOINED ANY OF THE DEFENDANTS FROM
EMPLOYING IN ANY CAPACITY THE PRESIDENT AND CHAIRMAN OF THE BOARD OF
GRINNELL, JAMES D. FLEMING.  BOTH THE GOVERNMENT AND THE DEFENDANTS
CHALLENGE ASPECTS OF THE DECREE. 

WE START FROM THE PREMISE THAT ADEQUATE RELIEF IN A MONOPOLIZATION
CASE SHOULD PUT AN END TO THE COMBINATION AND DEPRIVE THE DEFENDANTS OF
ANY OF THE BENEFITS OF THE ILLEGAL CONDUCT, AND BREAK UP OR RENDER
IMPOTENT THE MONOPOLY POWER FOUND TO BE IN VIOLATION OF THE ACT.  THAT
IS THE TEACHING OF OUR CASES, NOTABLY SCHINE THEATRES V. UNITED STATES,
334 U.S. 110, 128-129. 

WE LARGELY AGREE WITH THE GOVERNMENT'S VIEWS ON THE RELIEF ASPECT OF
THE CASE.  WE START WITH ADT, WHICH PRESENTLY DOES 73% OF THE BUSINESS
DONE BY ACCREDITED CENTRAL STATIONS THROUGHOUT THE COUNTRY.   IT IS
INDEED THE KEYSTONE OF THE DEFENDANTS' MONOPOLY POWER.  THE MERE
DISSOLUTION OF THE COMBINATION THROUGH THE DIVESTITURE BY GRINNELL OF
ITS INTERESTS IN THE OTHER COMPANIES DOES NOT REACH THE ROOT OF THE
EVIL.  IN 92 OF THE 115 CITIES IN WHICH ADT OPERATES THERE ARE NO OTHER
ACCREDITED CENTRAL STATIONS.  PERHAPS SOME CITIES COULD NOT SUPPORT
MORE THAN ONE.  DEFENDANTS RECOGNIZED PRIOR TO TRIAL THAT AT LEAST 13
CITIES CAN; THE GOVERNMENT URGED DIVESTITURE IN 48 CITIES.  THAT THERE
SHOULD BE SOME DIVESTITURE ON THE PART OF ADT SEEMS CLEAR; BUT THE
DETAILS OF SUCH DIVESTITURE MUST BE DETERMINED BY THE DISTRICT COURT AS
THE MATTER CANNOT BE RESOLVED ON THIS RECORD. 

TWO OF THE MEANS BY WHICH ADT ACQUIRED AND MAINTAINED ITS LARGE SHARE
OF THE MARKET ARE THE REQUIREMENT THAT SUBSCRIBERS SIGN FIVE-YEAR
CONTRACTS AND THE RETENTION BY ADT OF TITLE TO THE PROTECTIVE SERVICES
EQUIPMENT INSTALLED ON A SUBSCRIBER'S PREMISES.  ON THIS RECORD IT
APPEARS THAT THESE PRACTICES CONSTITUTE SUBSTANTIAL BARRIERS TO
COMPETITION AND THAT RELIEF AGAINST THEM IS APPROPRIATE.  THE PROS AND
CONS ARE ARGUED WITH CONSIDERABLE VEHEMENCE HERE.  (FN9)  AGAIN, WE
CANNOT RESOLVE THEM ON THIS RECORD.  THE VARIOUS ASPECTS OF THIS
CONTROVERSY MUST BE EXPLORED BY THE DISTRICT COURT AND SUITABLE
PROTECTIVE PROVISIONS INCLUDED IN THE DECREE THAT DEPRIVE THESE TWO
DEVICES OF THE COERCIVE POWER THAT THEY APPARENTLY HAVE HAD TOWARDS
RESTRAINING COMPETITION AND CREATING A MONOPOLY. 

THE GOVERNMENT PROPOSED THAT THE DEFENDANTS BE REQUIRED TO SELL, ON
NONDISCRIMINATORY TERMS, ANY DEVICES MANUFACTURED BY THEM FOR USE IN
FURNISHING CENTRAL STATION SERVICE.  IT SEEMS CLEAR THAT IF THE
COMPETITORS ARE TO BE ABLE TO COMPETE EFFECTIVELY FOR THE EXISTING
CUSTOMERS OF THE DEFENDANTS WHEN THE PRESENT SERVICE CONTRACTS EXPIRE,
THEY MUST BE ASSURED OF REPLACEMENT PARTS TO MAINTAIN THOSE SYSTEMS. 
(FN10) 

THE GOVERNMENT URGES VISITATION RIGHTS, THAT IS, REQUIRING REPORTS,
EXAMINING DOCUMENTS, AND INTERVIEWING COMPANY PERSONNEL, A RELIEF
COMMONLY GRANTED FOR THE PURPOSE OF DETERMINING WHETHER A DEFENDANT HAS
COMPLIED WITH AN ANTITRUST DECREE.  SEE UNITED STATES V. UNITED STATES
GYPSUM CO., 340 U.S. 76, 95.  THE DISTRICT COURT GAVE NO EXPLANATION
FOR ITS REFUSAL TO GRANT THIS RELIEF.  (FN11) IT IS SO IMPORTANT AND
CUSTOMARY A PROVISION THAT THE DISTRICT COURT SHOULD RECONSIDER IT. 

DEFENDANTS URGE AND THE GOVERNMENT CONCEDES THAT THE BARRING OF MR.
FLEMING FROM THE EMPLOYMENT OF ANY OF THE DEFENDANTS IS UNDULY HARSH
AND QUITE UNNECESSARY ON THIS RECORD.  WHILE RELIEF OF THAT KIND MAY BE
APPROPRIATE WHERE THE PREDATORY CONDUCT IS CONSPICUOUS, WE CANNOT SEE
THAT ANY SUCH CASE WAS MADE OUT ON THIS RECORD. 

THE GOVERNMENT OBJECTS, AS DO THE DEFENDANTS, TO THE BROAD AND
GENERALIZED TERMS OF THE RESTRAINING ORDER.  THEY PROPERLY POINT OUT,
AS WE EMPHASIZED IN SCHINE THEATRES V. UNITED STATES, SUPRA, AT 125
126, THAT THE PRECISE PRACTICES FOUND TO HAVE VIOLATED THE ACT SHOULD
BE SPECIFICALLY ENJOINED.  ON REMAND WE SUGGEST THAT THAT COURSE BE
TAKEN. 

THE DEFENDANTS OBJECT TO THE REQUIREMENTS THAT GRINNELL DIVEST ITSELF
OF ITS HOLDINGS IN THE THREE ALARM COMPANY DEFENDANTS, BUT WE THINK
THAT PROVISION IS WHOLLY JUSTIFIED.  DISSOLUTION OF THE COMBINATION IS
ESSENTIAL AS INDICATED BY MANY OF OUR CASES, STARTING WITH STANDARD OIL
CO. V. UNITED STATES, 221 U.S. 1, 78.  THE DEFENDANTS OBJECT TO THAT
PORTION OF THE DECREE THAT BARS THEM FROM ACQUIRING INTERESTS IN FIRMS
IN THE ACCREDITED CENTRAL STATION BUSINESS.  BUT SINCE ACQUISITION WAS
ONE OF THE METHODS BY WHICH THE DEFENDANTS ACQUIRED THEIR MARKET POWER
AND WAS THE METHOD BY WHICH GRINNELL PUT THE COMBINATION TOGETHER, AN
INJUNCTION AGAINST THE REPETITION OF THE PRACTICE SEEMS FULLY
WARRANTED.  THE DEFENDANTS FURTHER OBJECT TO THE REQUIREMENT IN THE
DECREE THAT THE ALARM COMPANY DEFENDANTS REPORT TO THE DEPARTMENT OF
JUSTICE ANY DEVIATION THEY MAKE FROM THEIR LIST PRICES.  WE MAKE NO
COMMENT ON THAT BECAUSE IN VIEW OF THE OTHER EXTENSIVE CHANGES
NECESSARY IN THE DECREE, THE DISTRICT COURT MIGHT WELL DEEM IT TO BE
UNNECESSARY IN THE FASHIONING OF THE NEW DECREE.   IN OTHER WORDS, WE
LEAVE THAT MATTER OPEN, TO REST FINALLY IN THE DISCRETION OF THE
DISTRICT COURT. 

                             III. 

THE DEFENDANTS CONTEND THAT JUDGE WYZANSKI, WHO TRIED THE CASE, WAS
PERSONALLY BIASED AND PREJUDICED AND SHOULD HAVE BEEN DISQUALIFIED FROM
SITTING IN THE CASE, AND THAT HE DENIED THEM A FAIR TRIAL.  WE THINK
THIS POINT IS WITHOUT MERIT. 

THE COMPLAINT WAS FILED IN APRIL 1961, THE ANSWERS IN JULY 1961. 
SHORTLY THEREAFTER EXTENSIVE TAKING OF DEPOSITIONS BEGAN.  THE DISTRICT
COURT IN JANUARY 1963 DIRECTED THAT NO DEPOSITIONS BE TAKEN AFTER
SEPTEMBER 1, 1963.  IN RESPONSE TO AN INQUIRY FROM THE COURT BOTH SIDES
SUGGESTED THAT THE TRIAL BE SET NO EARLIER THAN JANUARY 1964. 

AT A PRETRIAL CONFERENCE IN DECEMBER 1963, GOVERNMENT COUNSEL TOLD
THE COURT THAT THE PARTIES HAD BEEN TRYING TO REACH AGREEMENT ON A
CONSENT DECREE BUT WERE FAR APART AND ASKED HOW THE COURT WOULD LIKE TO
HANDLE THE PRESENTATION OF THE EVIDENCE IN THE EVENT A SETTLEMENT WAS
NOT REACHED.  GRINNELL'S LAWYER SUGGESTED THAT THE NEXT APPROPRIATE
PROCEDURE WOULD BE A PRETRIAL ON THE QUESTION OF RELIEF - A SUGGESTION
THAT THE DISTRICT COURT CONSTRUED AS AN INVITATION TO THE COURT TO
DISCUSS THE RELIEF APART FROM THE MERITS.  THE GOVERNMENT OBJECTED. 
THE COURT THEN ASKED FOR A BRIEF FROM EACH SIDE SETTING FORTH ITS VIEWS
ON RELIEF IF THE GOVERNMENT PREVAILED ON THE MERITS.  IN RESPONSE TO
THE COURT'S STATEMENT THAT "AS I UNDERSTAND IT, YOU WANT TO FIND OUT
WHAT KIND OF RELIEF I WOULD BE LIKELY TO ALLOW IF THE GOVERNMENT'S CASE
STOOD VIRTUALLY UNCONTRADICTED," GRINNELL'S COUNSEL REPLIED:  "THAT IS
WHAT I HAD IN MIND, YOUR HONOR, YES," 

THEREUPON THE COURT SET A DAY FOR SUCH A HEARING.  AT THE NEXT
PRETRIAL CONFERENCE GRINNELL'S COUNSEL STATED THAT "IF YOUR HONOR WOULD
INDICATE THE RELIEF THAT MIGHT BE APPROPRIATE IN THIS CASE THAT WOULD
HELP BOTH SIDES TO COME TO A BETTER UNDERSTANDING." 

THEN THE FOLLOWING COLLOQUY OCCURRED: 

"THE COURT.  I DON'T THINK IT WOULD HELP VERY MUCH. 

"MR. MCINERNEY.  WELL, YOUR HONOR, I THINK IT WOULD HELP BOTH THE
PLAINTIFF AND THE DEFENDANTS TO KNOW WHAT IS REALLY AT STAKE HERE IN
THIS TRIAL. 

"THE COURT.  I ASSURE YOU THAT YOU WOULD NOT BE HELPED BY ANYTHING I
WOULD SAY.  YOU WOULD DO BETTER TO GET TOGETHER WITH THE GOVERNMENT
RATHER THAN RUN THE RISK OF WHAT I WOULD SAY FROM WHAT I HAVE SEEN. 
LET ME JUST ASSURE YOU OF THAT  ...  ." 

THE CASE WAS THEN SET FOR TRIAL ON JUNE 15, 1964.  WHEN GRINNELL'S
COUNSEL SOUGHT TO ARGUE FURTHER, THE COURT STATED:  "THERE IS NO USE IN
DISCUSSING IT WITH ME.  I HAVE READ ENOUGH TO KNOW THAT IF I HAVE TO
DECIDE THIS CASE ON WHAT I HAVE SEEN FROM THE GOVERNMENT YOU WILL NOT
BE IN A POSITION AT THIS STAGE TO AGREE TO IT."    ON JUNE 3, 1964,
DEFENDANTS ARGUED FOR A POSTPONEMENT OF THE TRIAL, SAYING THEY NEEDED
MORE TIME.  THE COURT DENIED THE MOTION.  THEN THEY ARGUED THAT THE
RELIEF ISSUES TO BE TRIED BE LIMITED TO THOSE RAISED BY THE PLEADINGS
SO AS TO ELIMINATE WHAT THEY CONSIDERED TO BE EXTRANEOUS ISSUES RAISED
BY THE GOVERNMENT.  TO THAT THE COURT REPLIED: 

"I CAN'T UNDERSTAND FRANKLY WHY YOU DON'T REALIZE THAT YOU HAVE
FORCED ME TO LOOK AT THE DOCUMENTS IN THIS CASE, WHICH I DISLIKE DOING
IN ADVANCE OF TRIAL.  YOU HAVE INVITED ME, THEREFORE, INTO WHAT I
REGARD AS, FROM YOUR POINT OF VIEW, A RATHER UNDESIRABLE SITUATION.  I
THINK I MADE THAT CLEAR AT THE BEGINNING.  I HAVE TOLD YOU THAT, FORCED
BY YOU TO LOOK, MY VIEWS ARE MORE EXTREME THAN THOSE OF THE GOVERNMENT;
AND I HAVE ALSO MADE YOU REALIZE THAT IF I AM REQUIRED TO MAKE FINDINGS
AND REACH CONCLUSIONS I AM OPENING UP THIRD-PARTY SUITS THAT WILL MAKE,
IN VIEW OF THE SIZE OF THE INDUSTRY, THE PERCENTAGE OF PEOPLE INVOLVED
HIGHER THAN IN THE ELECTRICAL CASES." 

SHORTLY THEREAFTER DEFENDANTS FILED A MOTION  (FN12) FOR THE
DISQUALIFICATION OF JUDGE WYZANSKI ON THE GROUNDS OF PERSONAL BIAS AND
PREJUDICE.  (FN13) 

THE ALLEGED BIAS AND PREJUDICE TO BE DISQUALIFYING MUST STEM FROM AN
EXTRAJUDICIAL SOURCE AND RESULT IN AN OPINION ON THE MERITS ON SOME
BASIS OTHER THAN WHAT THE JUDGE LEARNED FROM HIS PARTICIPATION IN THE
CASE.  BERGER V. UNITED STATES, 255 U.S. 22, 31.  ANY ADVERSE ATTITUDES
THAT JUDGE WYZANSKI EVINCED TOWARD THE DEFENDANTS WERE BASED ON HIS
STUDY OF THE DEPOSITIONS AND BRIEFS WHICH THE PARTIES HAD REQUESTED HIM
TO MAKE.  WHAT HE SAID REFLECTED NO MORE THAN HIS VIEW THAT, IF THE
FACTS WERE AS THE GOVERNMENT ALLEGED, STRINGENT RELIEF WAS CALLED FOR. 

DURING THE TRIAL HE REPEATEDLY STATED THAT HE HAD NOT MADE UP HIS
MIND ON THE MERITS.  DURING THE TRIAL HE RULED CERTAIN EVIDENCE TO BE
IRRELEVANT TO THE ISSUES AND WHEN THE LAWYER PERSISTED IN OFFERING IT
JUDGE WYZANSKI SAID, "MAYBE YOU WILL PERSUADE SOMEBODY ELSE.  AND IF
YOU THINK SO, ALL RIGHT.  I JUST ASSURE YOU IT IS A GREAT CEREMONIAL
ACT, AS FAR AS I AM CONCERNED."  WE DO NOT READ THIS STATEMENT AS
MANIFESTING A CLOSED MIND ON THE MERITS OF THE CASE BUT CONSIDER IT
MERELY A TERSE WAY OF REPEATING THE PREVIOUSLY STATED RULING THAT THIS
PARTICULAR EVIDENCE WAS IRRELEVANT. 

WE HAVE EXAMINED ALL THE OTHER CLAIMS OF THE DEFENDANTS MADE AGAINST
JUDGE WYZANSKI AND FIND THAT THE CLAIM OF BIAS AND PREJUDICE IS NOT
MADE OUT.  OUR DISCUSSION OF THE RELIEF WHICH HE GRANTED SHOWS INDEED
THAT HE WAS, IN SEVERAL CRITICAL RESPECTS, TOO LENIENT WITH THOSE WHO
NOW CHARGE HIM WITH BIAS AND PREJUDICE. 

THE JUDGMENT BELOW IS AFFIRMED EXCEPT AS TO THE DECREE.  WE REMAND
FOR FURTHER HEARINGS ON THE NATURE OF THE RELIEF CONSISTENT WITH THE
VIEWS EXPRESSED HEREIN.  IT IS SO ORDERED. 

FN1  26 STAT. 209, AS AMENDED, 15 U.S.C. SEC 2 (1964 ED.). 

FN2  EXPEDITING ACT SEC 2, 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC 29
(1964 ED.); UNITED STATES V. LOEW'S, INC., 371 U.S. 38. 

FN3  THESE ARE THE RECORD FIGURES.  SINCE THE TIME OF THE TRIAL,
GRINNELL'S HOLDINGS HAVE INCREASED.  COUNSEL FOR GRINNELL HAS ADVISED
THIS COURT THAT GRINNELL NOW HOLDS 80% OF ADT'S STOCK AND 90% OF THE
STOCK OF AFA. 

FN4  AMONG THE VARIOUS CENTRAL STATION SERVICES OFFERED ARE THE
FOLLOWING: 

(1)  AUTOMATIC BURGLAR ALARMS: 

(2)  AUTOMATICE FIRE ALARMS: 

(3)  SPRINKLER SUPERVISORY SERVICE (ANY MALFUNCTIONS IN THE FIRE
SPRINKLER SYSTEM - E.G., CHANGES IN WATER PRESSURE, DANGEROUSLY LOW
WATER TEMPERATURES, ETC. - ARE REPORTED TO THE CENTRAL STATION); AND: 

(4)  WATCH SIGNAL SERVICE (NIGHT WATCHMEN, BY OPERATING A KEY
TRIGGERED DEVICE ON THE PROTECTED PREMISES, INDICATE TO THE CENTRAL
STATION THAT THEY ARE MAKING THEIR ROUNDS AND THAT ALL IS WELL; THE
FAILURE OF A WATCHMAN TO MAKE HIS ELECTRICAL REPORT ALERTS THE CENTRAL
STATION THAT SOMETHING MAY BE AMISS). 

FN5  IN 1959, ADT COMPLAINED THAT AFA'S SHARE OF THE REVENUES WAS
EXCESSIVE.  AFA REPLIED, IN A LETTER TO THE PRESIDENT OF GRINNELL
(WHICH BY THAT TIME CONTROLLED BOTH ADT AND AFA), THAT ITS SHARE WAS
JUST COMPENSATION FOR ITS CONTINUED OBSERVANCE OF THE SERVICE AND
TERRITORIAL RESTRICTIONS: "THE GEOGRAPHIC RESTRICTIONS PLACED UPON US
PLUS THE REQUIREMENT THAT WE CONFINE OUR ACTIVITIES TO SPRINKLER AND
FIRE ALARM SERVICES EXCLUSIVELY, SINCE 1907 AND PRESUMABLY INTO THE
FUTURE, HAS DEFINITELY RETARDED OUR EXPANSION IN THE PAST TO THE
BENEFIT OF ADT GROWTH  ...  .  AFA'S CONTRIBUTION MUST ALSO INCLUDE THE
MANY THINGS THAT HELPED MAKE ADT BIG." 

FN6  THUS, OF THE 38 NONDEFENDANT FIRMS OPERATING A CENTRAL SERVICE
STATION PROTECTIVE SERVICE IN THE UNITED STATES IN 1961, 24 OFFERED ALL
OF THE FOLLOWING SERVICES:  AUTOMATIC FIRE ALARM; WATERFLOW ALARM AND
SPRINKLER SUPERVISION; WATCHMAN'S REPORTING AND MANUAL FIRE ALARM; AND
BURGLAR ALARM.  OF THE OTHER FIRMS.  11 PROVIDED NO WATCHMAN'S
REPORTING AND MANUAL FIRE ALARM SERVICE; SIX PROVIDED NO AUTOMATIC FIRE
ALARM SERVICE; AND TWO OFFERED NO SPRINKLER SUPERVISORY AND WATERFLOW
ALARM SERVICE.  MOREOVER, OF THE 14 FIRMS NOT PROVIDING THE FULL
PANOPLY OF SERVICES, 10 LACKED ONLY ONE OF THE ABOVE-DESCRIBED
SERVICES.  APPELLANT ADT'S ASSERTION THAT "VERY FEW ACCREDITED CENTRAL
STATIONS FURNISH THE FULL VARIETY OF SERVICES" IS FLATLY CONTRADICTED
BY THE RECORD. 

FN7  SINCE THE RECORD CLEARLY SHOWS THAT THIS MONOPOLY POWER WAS
CONSCIOUSLY ACQUIRED, WE HAVE NO REASON TO REACH THE FURTHER POSITION
OF THE DISTRICT COURT THAT ONCE MONOPOLY POWER IS SHOWN TO EXIST, THE
BURDEN IS ON THE DEFENDANTS TO SHOW THAT THEIR DOMINANCE IS DUE TO
SKILL, ACUMEN, AND THE LIKE. 

FN8  ALTHOUGH THE GOVERNMENT ORIGINALLY URGED THAT THE DECREE WAS
INADEQUATE AS TO DIVESTITURE IN THAT IT PERMITTED GRINNELL TO
DISTRIBUTE THE STOCK OF THE OTHER COMPANIES TO GRINNELL'S SHAREHOLDERS,
IT HAS ABANDONED THAT POINT IN THIS COURT. 

FN9  SPECIFICALLY, THE AREAS OF DISAGREEMENT ARE:  (1) DEFENDANTS
URGE THAT BARRING THEM FROM OFFERING FIVE-YEAR CONTRACTS WOULD PUT THEM
AT A COMPETITIVE DISADVANTAGE VIS-A-VIS NONDEFENDANT FIRMS; THE
GOVERNMENT RESPONDS THAT SINCE THEY VIOLATED THE LAW, THEY MAY PROPERLY
BE SUBJECTED TO RESTRICTIONS NOT BORNE BY OTHERS.  SEE UNITED STATES V.
BAUSCH & LOMB CO., 321 U.S. 707, 723-724.  (2) SOME CUSTOMERS OF
DEFENDANTS MAY WISH TO HAVE LONG-TERM CONTRACTS; THE GOVERNMENT
RESPONDS THAT THIS MAY BE EXPLORED ON REMAND.  (3) THERE IS SOME
DISPUTE AS TO WHETHER, IF THE CENTRAL STATION COMPANY CANNOT RETAIN
TITLE TO THE EQUIPMENT IT INSTALLS, THE INSURANCE COMPANIES WILL
ACCREDIT THE SYSTEM.  THIS, TOO, IS A PROPER SUBJECT FOR INQUIRY ON
REMAND. 

FN10  PRIOR TO TRIAL, THE DEFENDANTS AGREED THAT THIS WOULD BE AN
APPROPRIATE PROVISION IN A DECREE WERE THE GOVERNMENT TO PREVAIL IN ALL
ITS CLAIMS OF ANTITRUST VIOLATIONS.  ALTHOUGH DEFENDANTS NOW MAINTAIN
THAT THIS PRETRIAL DISCUSSION WAS "SETTLEMENT TALK," THAT EARLIER
CONCESSION IS A RELEVANT FACTOR THAT THE DISTRICT JUDGE CAN PROPERLY
TAKE INTO ACCOUNT ON REMAND. 

FN11  THIS PROVISION, TOO, GAINED PRETRIAL ACCEPTANCE.  SEE N. 10,
SUPRA. 

FN12  28 U.S.C. SEC 144 (1964 ED.)  PROVIDES IN RELEVANT PART: 

"WHENEVER A PARTY TO ANY PROCEEDING IN A DISTRICT COURT MAKES AND
FILES A TIMELY AND SUFFICIENT AFFIDAVIT THAT THE JUDGE BEFORE WHOM THE
MATTER IS PENDING HAS A PERSONAL BIAS OR PREJUDICE EITHER AGAINST HIM
OR IN FAVOR OF ANY ADVERSE PARTY, SUCH JUDGE SHALL PROCEED NO FURTHER
THEREIN, BUT ANOTHER JUDGE SHALL BE ASSIGNED TO HEAR SUCH PROCEEDING." 

FN13  JUDGE WYZANSKI REFERRED THE QUESTION OF HIS DISQUALIFICATION TO
CHIEF JUDGE WOODBURY OF THE COURT OF APPEALS FOR THE FIRST CIRCUIT WHO
AFTER HEARING ORAL ARGUMENT HELD THAT NO CASE OF BIAS AND PREJUDICE HAD
BEEN MADE OUT UNDER SEC 144. 

MR. JUSTICE HARLAN, DISSENTING. 

I CANNOT AGREE WITH THE COURT THAT THE RELEVANT MARKET HAS BEEN
ADEQUATELY PROVED.  I DO NOT DISPUTE THAT A NATIONAL MARKET MAY BE
FOUND EVEN THOUGH IMMEDIATE COMPETITION TAKES PLACE ONLY WITHIN
INDIVIDUAL COMMUNITIES, SOME OF WHICH ARE THEMSELVES NATURAL
MONOPOLIES.  FOR A NATIONAL MONOPOLY OF SUCH LOCAL ENTERPRISES MAY
STILL HAVE SERIOUS LONG-TERM IMPACT ON COMPETITION AND BE VULNERABLE ON
ITS OWN PLANE TO THE ANTITRUST LAWS.  IN THE PRODUCT MARKET ALSO THE
COURT SEEMS TO ME TO MAKE OUT A GOOD ENOUGH CASE FOR LUMPING TOGETHER
THE DIFFERENT KINDS OF CENTRAL STATION PROTECTIVE SERVICE (CSPS).  BUT
I CANNOT AGREE THAT THE FACTS SO FAR DEVELOPED WARRANT RESTRICTING THE
PRODUCT MARKET TO ACCREDITED CSPS. 

BECAUSE THE ULTIMATE ISSUE IS THE EFFECTIVE POWER TO CONTROL PRICE
AND COMPETITION, THIS COURT HAS ALWAYS RECOGNIZED THAT THE MARKET MUST
INCLUDE PRODUCTS OR SERVICES "REASONABLY INTERCHANGEABLE" WITH THOSE OF
THE ALLEGED MONOPOLIST.  UNITED STATES V. DU PONT & CO., 351 U.S. 377,
395.  IN THIS INSTANCE, THERE IS NO DOUBT THAT THE ACCREDITED CSPS
BUSINESS DOES COMPETE IN SOME MEASURE WITH MANY OTHER FORMS OF HAZARD
PROTECTION: WATCHMEN, LOCAL ALARMS, PROPRIETARY SYSTEMS, TELEPHONE
CONNECTED SERVICES, UNACCREDITED CSPS, DIRECT-CONNECTED (TO POLICE AND
FIRE STATIONS) SYSTEMS, AND SO FORTH.  THE CRITICAL QUESTION, THEN, IS
THE EXTENT OF COMPETITION FROM THESE RIVALS. 

THE GOVERNMENT AND THE MAJORITY HAVE STRESSED THAT DIFFERENCES IN
COST, RELIABILITY AND INSURANCE DISCOUNTS MAY DISQUALIFY A COMPETING
FORM OF PROTECTION FOR A PARTICULAR CUSTOMER.  FOR EXAMPLE, IT IS SAID
THAT PROPRIETARY SYSTEMS ARE TOO EXPENSIVE FOR ANY BUT LARGE COMPANIES
AND LOCAL ALARMS MAY GO UNANSWERED IN SOME NEIGHBORHOODS.  BUT IF IN
GENERAL A CSPS CUSTOMER HAS A FEASIBLE ALTERNATIVE TO CSPS, IT DOES NOT
MUCH MATTER THAT OTHER ONES ARE FORECLOSED TO HIM, NOR THAT OTHER CSPS
CUSTOMERS HAVE DIFFERENT SECOND CHOICES.  FROM THIS RECORD, IT MAY WELL
BE THAT OTHER FORMS OF PROTECTION ARE EACH COMPETITIVE ENOUGH WITH
SEGMENTS OF THE CSPS MARKET SO THAT IN SUM CSPS RARELY HAS A MONOPOLY
POSITION. 

FROM THE DEFENSE STANDPOINT, THERE IS SUBSTANTIAL EVIDENCE SHOWING
THAT THE DEFENDANTS DO FEEL THEMSELVES UNDER PRESSURE FROM OTHER FORMS
OF PROTECTION, THAT THEY DO COMPETE FOR CUSTOMERS, AND THAT THEY DO
LOWER PRICES EVEN IN AREAS WHERE NO CSPS COMPETITION IS PRESENT.  THIS
CONCRETE EVIDENCE OF MARKET BEHAVIOR SEEMS TO ME TO RANK HIGHER THAN
THE KIND OF INFERENCE PROOF HEAVILY RELIED ON BY THE GOVERNMENT -
PHYSICAL DIFFERENCES BETWEEN COMPETING FORMS OF PROTECTION, SELF
ADVERTISING CLAIMS OF CSPS COMPANIES THAT THEY REPRESENT A SUPERIOR
SERVICE, AND VARYING INSURANCE DISCOUNTS.  GIVEN THAT THE BURDEN OF
PROOF RESTS UPON THE GOVERNMENT, THE RECORD LEAVES ME WITH SUCH
MISGIVINGS AS TO THE VALIDITY OF THE DISTRICT COURT'S FINDINGS ON THIS
SCORE THAT I AM NOT PREPARED TO AGREE THAT THE GOVERNMENT HAS MADE THE
SHOWING OF MARKET DOMINATION THAT THE LAW DEMANDS BEFORE A BUSINESS IS
SUNDERED. 

AT THE SAME TIME THE CASE MUST BE RECOGNIZED AS A CLOSE ONE, AND I AM
NOT READY TO SAY AT THIS STAGE THAT THE FINDINGS AND CONCLUSIONS OF THE
DISTRICT COURT MIGHT NOT BE SUPPORTABLE.  ALL THINGS CONSIDERED, I JOIN
WITH MY BROTHERS FORTAS AND STEWART TO THE EXTENT OF VOTING TO REMAND
THE CASE FOR FURTHER PROCEEDINGS SO THAT NEW FINDINGS CAN BE MADE AS TO
THE RELEVANT PRODUCT MARKET.  THIS COURSE SEEMS TO ME THE MORE
APPROPRIATE IN LIGHT OF THE FACT THAT BECAUSE OF THE EXPEDITING ACT, 15
U.S.C. SEC 29 (1964 ED.), WE HAVE NOT HAD THE BENEFIT OF ANY
INTERMEDIATE APPELLATE SIFTING OF THIS RECORD.  IN VIEW OF THE
DISPOSITION I PROPOSE, I DO NOT CONSIDER ANY OF THE OTHER QUESTIONS IN
THE CASE. 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

I AGREE THAT THE JUDGMENT BELOW SHOULD BE REMANDED, BUT I DO NOT
AGREE THAT THE REMAND SHOULD BE LIMITED TO RESHAPING THE DECREE. 
BECAUSE I BELIEVE THAT THE DEFINITION OF THE RELEVANT MARKET HERE
CANNOT BE SUSTAINED, I WOULD REVERSE AND REMAND FOR A NEW DETERMINATION
OF THIS BASIC ISSUE, SUBJECT TO PROPER STANDARDS. 

WE HAVE HERE A CASE UNDER BOTH SEC 1 AND SEC 2 OF THE SHERMAN ACT,
WHICH PROSCRIBE COMBINATIONS IN RESTRAINT OF TRADE, AND MONOPOLIES AND
ATTEMPTS TO MONOPOLIZE.  THE JUDICIAL TASK IS NOT DIFFICULT TO STATE:
DOES THE RECORD SHOW A COMBINATION IN RESTRAINT OF TRADE OR A MONOPOLY
OR ATTEMPT TO MONOPOLIZE?  IF SO, WHAT ARE ITS CHARACTERISTICS, SCOPE
AND EFFECT?  AND, FINALLY, WHAT IS THE APPROPRIATE REMEDY FOR A COURT
OF EQUITY TO DECREE? 

EACH OF THESE INQUIRIES DEPENDS UPON TWO BASIC REFERENTS:  DEFINITION
OF THE GEOGRAPHICAL AREA OF TRADE OR COMMERCE RESTRAINED OR
MONOPOLIZED, AND OF THE PRODUCTS OR SERVICES INVOLVED.  IN SEC 1 CASES
THIS PROBLEM ORDINARILY PRESENTS LITTLE DIFFICULTY BECAUSE THE
COMBINATION IN RESTRAINT OF TRADE ITSELF DELINEATES THE "MARKET" WITH
SUFFICIENT CLARITY TO SUPPORT THE USUAL INJUNCTIVE FORM OF RELIEF IN
THOSE CASES.  SEE, E.G., UNITED STATES V. GRIFFITH, 334 U.S. 100.  IN
THE PRESENT CASE, HOWEVER, THE ESSENCE OF THE OFFENSE IS
MONOPOLIZATION, ACHIEVED OR ATTEMPTED.  AND THE MAJOR RELIEF IS
DIVESTITURE.  FOR THESE PURPOSES, "MARKET" DEFINITION IS OF THE
ESSENCE, JUST AS IN SEC 7 CASES (FN1) THE KINDRED DEFINITION OF THE
"LINE OF COMMERCE" IS FUNDAMENTAL.  WE MUST DEFINE THE AREA OF COMMERCE
THAT IS ALLEGEDLY ENGROSSED BEFORE WE CAN DETERMINE ITS ENGROSSMENT;
AND WE MUST DEFINE IT BEFORE A DECREE CAN BE SHAPED TO DEAL WITH THE
CONSEQUENCES OF THE MONOPOLY, AND TO RESTORE OR PRODUCE COMPETITION. 
SEE UNITED STATES V. DU PONT & CO. (THE CELLOPHANE CASE), 351 U.S. 377,
389-396; UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416 (C.A.2D
CIR. 1945). 

IN SEC 2 CASES, THE SEARCH FOR "THE RELEVANT MARKET" MUST BE
UNDERTAKEN AND PURSUED WITH RELENTLESS CLARITY.  IT IS, IN ESSENCE, AN
ECONOMIC TASK PUT TO THE USES OF THE LAW.  UNLESS THIS TASK IS WELL
DONE, THE RESULTS WILL BE DISTORTED IN TERMS OF THE CONCLUSION AS TO
WHETHER THE LAW HAS BEEN VIOLATED AND WHAT THE DECREE SHOULD CONTAIN. 
IN THIS CASE THE RELEVANT GEOGRAPHICAL AND PRODUCT MARKETS HAVE NOT
BEEN DEFINED ON THE BASIS OF THE ECONOMIC FACTS OF THE INDUSTRY
CONCERNED.  THEY HAVE BEEN TAILORED PRECISELY TO FIT DEFENDANT'S
BUSINESS.  THE GOVERNMENT PROPOSED AND THE TRIAL COURT CONCLUDED THAT
THE RELEVANT MARKET IS NOT THE BUSINESS OF FIRE PROTECTION, OR BURGLARY
PROTECTION, OR PROTECTION AGAINST WATERFLOW, ETC., OR ALL OF THESE
TOGETHER.  IT IS NOT EVEN THE BUSINESS OF FURNISHING THESE FROM A
CENTRAL LOCATION.  IT IS THE BUSINESS, VIEWED NATIONALLY, OF SUPPLYING
"INSURANCE ACCREDITED CENTRAL STATION PROTECTION SERVICES" (CSPS) -
THAT IS, FIRE, BURGLARY AND OTHER KINDS OF PROTECTION FURNISHED FROM A
CENTRAL STATION WHICH IS ACCREDITED BY INSURANCE COMPANIES.  THE
BUSINESS OF DEFENDANTS FITS NEATLY INTO THE PRODUCT AND GEOGRAPHIC
MARKET SO DEFINED.  IN FACT, IT COMES CLOSE TO FILLING THE MARKET SO
DEFINED.   (FN2)  THIS COURT HAS NOW APPROVED THIS PROCRUSTEAN
DEFINITION. 

THE GEOGRAPHICAL MARKET IS DEFINED AS NATIONWIDE.  BUT THE NEED AND
THE SERVICE ARE INTENSELY LOCAL - MORE LOCAL BY FAR, FOR EXAMPLE, THAN
THE MARKET WHICH THIS COURT FOUND TO BE LOCAL IN UNITED STATES V.
PHILADELPHIA NAT. BANK, 374 U.S. 321, 357-362.  (FN3)  THE PREMISES
PROTECTED DO NOT TRAVEL.  THEY ARE FIXED LOCATIONS.  THEY MUST BE
PROTECTED WHERE THEY ARE.  PROTECTION MUST BE PROVIDED ON THE SPOT.  IT
MUST BE FURNISHED BY LOCAL PERSONNEL ABLE TO BRING HELP TO THE SCENE
WITHIN MINUTES.  EVEN THE CENTRAL STATIONS CAN PROVIDE SERVICE ONLY
WITHIN A 25-MILE RADIUS.  WHERE THE TENANTS OF THE PREMISES TURN TO
CENTRAL STATIONS FOR THIS SERVICE, THEY MUST MAKE THEIR CONTRACTS
LOCALLY WITH THE CENTRAL STATION AND PURCHASE THEIR SERVICES FROM IT ON
THE BASIS OF LOCAL CONDITIONS. 

BUT BECAUSE THESE DEFENDANTS, THE TRIAL COURT FOUND, ARE CONNECTED BY
STOCK OWNERSHIP, INTERLOCKING MANAGEMENT AND SOME DEGREE OF NATIONAL
CORPORATE DIRECTION, AND BECAUSE THERE IS SOME NATIONAL PARTICIPATION
IN SELLING AS WELL AS NATIONAL FINANCING, ADVERTISING, PURCHASING OF
EQUIPMENT, AND THE LIKE,  (FN4) THE COURT CONCLUDED THAT THE
COMPETITIVE AREA TO BE CONSIDERED IS NATIONAL.  THIS COURT NOW AFFIRMS
THAT CONCLUSION. 

THIS IS A NON SEQUITUR.  IT IS NOT PERMISSIBLE TO SEIZE UPON THE
NATIONWIDE SCOPE OF DEFENDANTS' OPERATION AND TO BOOTSTRAP A
GEOGRAPHICAL DEFINITION OF THE MARKET FROM THIS.  THE PURPOSE OF THE
SEARCH FOR THE RELEVANT GEOGRAPHICAL MARKET IS TO FIND THE AREA OR
AREAS TO WHICH A POTENTIAL BUYER MAY RATIONALLY LOOK FOR THE GOODS OR
SERVICES THAT HE SEEKS.  THE TEST, AS THIS COURT SAID IN UNITED STATES
V. PHILADELPHIA NAT. BANK, IS "THE GEOGRAPHIC STRUCTURE OF SUPPLIER
CUSTOMER RELATIONS," 374 U.S. 321, 357, QUOTING KAYSEN & TURNER,
ANTITRUST POLICY 102 (1959).  AND, AS MR. JUSTICE CLARK PUT IT IN TAMPA
ELECTRIC CO. V. NASHVILLE COAL CO., 365 U.S. 320, 327, THE DEFINITION
OF THE RELEVANT MARKET REQUIRES "CAREFUL SELECTION OF THE MARKET AREA
IN WHICH THE SELLER OPERATES, AND TO WHICH THE PURCHASER CAN
PRACTICABLY TURN FOR SUPPLIES."  (FN5)  THE CENTRAL ISSUE IS WHERE DOES
A POTENTIAL BUYER LOOK FOR POTENTIAL SUPPLIERS OF THE SERVICE - WHAT IS
THE GEOGRAPHICAL AREA IN WHICH THE BUYER HAS, OR, IN THE ABSENCE OF
MONOPOLY, WOULD HAVE, A REAL CHOICE AS TO PRICE AND ALTERNATIVE
FACILITIES?  THIS DEPENDS UPON THE FACTS OF THE MARKET PLACE, TAKING
INTO ACCOUNT SUCH ECONOMIC FACTORS AS THE DISTANCE OVER WHICH SUPPLIES
AND SERVICES MAY BE FEASIBLY FURNISHED, CONSISTENTLY WITH COST AND
FUNCTIONAL EFFICIENCY. 

THE INCIDENTAL ASPECTS OF DEFENDANTS' BUSINESS WHICH THE COURT USES
CANNOT CONTROL THE OUTCOME OF THIS INQUIRY.  THEY DO NOT MEASURE THE
MARKET AREA IN WHICH BUYER AND SELLERS MEET.  THEY HAVE LITTLE IMPACT
UPON THE ASCERTAINMENT OF THE GEOGRAPHICAL AREAS IN WHICH THE ECONOMIC
AND LEGAL QUESTIONS MUST BE ANSWERED:  HAVE DEFENDANTS "MONOPOLIZED" OR
"RESTRAINED" TRADE; HAVE THEY ELIMINATED OR CAN THEY ELIMINATE
COMPETITORS OR PREVENT OR OBSTRUCT NEW ENTRIES INTO THE BUSINESS; HAVE
THEY CONTROLLED OR CAN THEY CONTROL PRICE FOR THE SERVICES?  THESE ARE
THE ISSUES; AND, IN DEFENDANTS' BUSINESS, A FINDING THAT THE "RELEVANT
MARKET" IS NATIONAL IS NOTHING LESS THAN A STUDIED FAILURE TO ASSESS
THE EFFECT OF DEFENDANTS' POSITION AND PRACTICES IN THE LIGHT OF THE
COMPETITION WHICH EXISTS, OR COULD EXIST, IN ECONOMICALLY DEFINED AREAS
- IN THE REAL WORLD. 

HERE, THERE CAN BE NO DOUBT THAT THE CORRECT GEOGRAPHIC MARKET IS
LOCAL.  THE SERVICES AT ISSUE ARE INTENSELY LOCAL:  THEY CAN BE
FURNISHED ONLY LOCALLY.  THE BUSINESS AS IT IS DONE IS LOCAL - NOT
NATIONWIDE.  IF, AS MIGHT WELL BE THE CASE ON THIS RECORD, DEFENDANTS
WERE FOUND TO HAVE VIOLATED THE SHERMAN ACT IN A NUMBER OF THESE LOCAL
AREAS, A PROPER DECREE, DIRECTED TO THOSE MARKETS, AS WELL AS TO
GENERAL CORPORATE FEATURES RELEVANT TO THE CONDEMNED PRACTICES, COULD
BE FASHIONED.  ON THE OTHER HAND, A GROSS DEFINITION OF THE MARKET AS
NATIONWIDE LEADS TO A GROSS, NATIONWIDE DECREE WHICH DOES NOT ADDRESS
ITSELF TO THE REALITIES OF THE MARKET PLACE.  THAT IS WHAT HAPPENED
HERE: THE DISTRICT COURT'S FINDING THAT THE MARKET WAS NATIONWIDE
LOGICALLY LED IT TO A DECREE WHICH OPERATED ON THE ONLY NATIONAL ASPECT
OF THE SITUATION, THE PARENT COMPANY NEXUS, INSTEAD OF ON THE
ECONOMICALLY REALISTIC AREAS - THE LOCAL SITUATIONS.  THIS COURT NOW
DIRECTS THE TRIAL COURT TO REQUIRE "SOME UNSPECIFIED DIVESTITURE"
LOCALLY BY THE ALARM COMPANIES.  THIS IS A RECOGNITION OF THE ECONOMIC
REALITY THAT THE RELEVANT COMPETITIVE AREAS ARE LOCAL.  IN PLAIN TERMS,
THE COURT'S DIRECTION TO THE TRIAL COURT MEANS A "MARKET-BY-MARKET"
ANALYSIS FOR THE PURPOSE OF BREAKING UP DEFENDANTS' MONOPOLY POSITION
AND CREATING COMPETITORS AND COMPETITION WHEREVER FEASIBLE IN
PARTICULAR CITIES.  IN MY VIEW, HOWEVER, BY SO DIRECTING, THE COURT
IMPLIES THAT WHICH IT DOES NOT COMMAND:  THAT THE CASE SHOULD BE
RECONSIDERED AT THE TRIAL COURT LEVEL BECAUSE OF THE IMPROPER STANDARD
IT USED TO DEFINE THE RELEVANT GEOGRAPHIC MARKETS. 

THE TRIAL COURT'S DEFINITION OF THE "PRODUCT" MARKET EVEN MORE
DRAMATICALLY DEMONSTRATES THAT ITS ACTION HAS BEEN PROCRUSTEAN - THAT
IT HAS TAILORED THE MARKET TO THE DIMENSIONS OF THE DEFENDANTS.  IT
RECOGNIZES THAT A PERSON SEEKING PROTECTIVE SERVICES HAS MANY
ALTERNATIVE SOURCES.  IT LISTS "WATCHMEN, WATCHDOGS, AUTOMATIC
PROPRIETARY SYSTEMS CONFINED TO ONE SITE, (OFTEN, BUT NOT ALWAYS,)
ALARM SYSTEMS CONNECTED WITH SOME LOCAL POLICE OR FIRE STATION, OFTEN
UNACCREDITED CSPS (CENTRAL STATION PROTECTIVE SERVICES), AND OFTEN
ACCREDITED CSPS."  THE COURT FINDS THAT EVEN IN THE SAME CITY A SINGLE
CUSTOMER SEEKING PROTECTION FOR SEVERAL PREMISES MAY "EXERCISE ITS
OPTION" DIFFERENTLY FOR DIFFERENT LOCATIONS.  IT MAY CHOOSE ACCREDITED
CSPS FOR ONE OF ITS LOCATIONS AND A DIFFERENT TYPE OF SERVICE FOR
ANOTHER. 

BUT THE COURT ISOLATED FROM ALL OF THESE ALTERNATIVES ONLY THOSE
SERVICES IN WHICH DEFENDANTS ENGAGE.  IT ELIMINATES ALL OF THE
ALTERNATIVE SOURCES DESPITE ITS CONSCIENTIOUS ENUMERATION OF THEM. 
ITS DEFINITION OF THE "RELEVANT MARKET" IS NOT MERELY CONFINED TO
"CENTRAL STATION" PROTECTIVE SERVICES, BUT TO THOSE CENTRAL STATION
PROTECTIVE SERVICES WHICH ARE "ACCREDITED" BY INSURANCE COMPANIES. 

THERE IS NO PRETENSE THAT THESE FURNISH PECULIAR SERVICES FOR WHICH
THERE IS NO ALTERNATIVE IN THE MARKET PLACE, ON EITHER A PRICE OR A
FUNCTIONAL BASIS.  THE COURT RELIES SOLELY UPON ITS FINDING THAT THE
SERVICES OFFERED BY ACCREDITED CENTRAL STATIONS ARE OF BETTER QUALITY,
AND UPON ITS CONCLUSION THAT THE INSURANCE COMPANIES TEND TO GIVE
"NOTICEABLY LARGER" DISCOUNTS TO POLICYHOLDERS WHO USE ACCREDITED
CENTRAL STATION PROTECTIVE SERVICES.  THIS COURT NOW APPROVES THIS
STRANGE RED-HAIRED, BEARDED, ONE-EYED MAN-WITH-A-LIMP CLASSIFICATION. 

THE UNREALITY OF THE TRIAL COURT'S MARKET DEFINITION MAY BEST BE
ILLUSTRATED BY AN EXAMPLE.  CONSIDER THE SITUATION OF A RETAIL MERCHANT
IN PITTSBURGH WHO WISHES TO PROTECT HIS STORE AGAINST BURGLARY.  THE
HOLMES ELECTRIC PROTECTIVE COMPANY, A SUBSIDIARY OF GRINNELL, OPERATES
AN ACCREDITED CENTRAL STATION SERVICE IN PITTSBURGH.  IT PROVIDES ONLY
BURGLARY PROTECTION. 

THE GERRYMANDERED MARKET DEFINITION APPROVED TODAY TOTALLY EXCLUDES
FROM THE MARKET CONSIDERATION OF THE AVAILABILITY IN PITTSBURGH OF
CHEAPER BUT SOMEWHAT LESS RELIABLE LOCAL ALARM SYSTEMS, OR OF MORE
EXPENSIVE (ALTHOUGH THE EXPENSE IS REDUCED BY GREATER INSURANCE
DISCOUNTS) WATCHMAN SERVICE, OR EVEN OF UNACCREDITED CENTRAL STATION
SERVICE WHICH VIRTUALLY DUPLICATES THE HOLMES SERVICE. 

INSTEAD, AND IN THE NAME OF "COMMERCIAL REALITIES," WE ARE INSTRUCTED
THAT THE "RELEVANT MARKET" - WHICH TOTALLY EXCLUDES THESE LOCALLY
AVAILABLE ALTERNATIVES - REQUIRES US TO LOOK ONLY TO ACCREDITED CENTRAL
STATION SERVICE, AND THAT WE ARE TO INCLUDE IN THE "MARKET" CENTRAL
STATIONS WHICH DO NOT FURNISH BURGLARY PROTECTION AND EVEN THOSE WHICH
SERVE SUCH PLACES AS BOSTON AND HONOLULU.  (FN6) 

MOREOVER, WE ARE TOLD THAT THE "RELEVANT MARKET" MUST ASSUME THIS
STRANGE AND CURIOUS CONFIGURATION DESPITE EVIDENCE IN THE RECORD AND A
FINDING OF THE TRIAL COURT THAT "FRINGE COMPETITION" FROM SUCH LOCALLY
AVAILABLE ALTERNATIVES AS WATCHMEN, LOCAL ALARM SYSTEMS, PROPRIETARY
SYSTEMS, AND UNACCREDITED CENTRAL STATIONS HAS, IN AT LEAST 20 CITIES,
FORCED THE DEFENDANTS TO OPERATE AT A "LOSS" EVEN THOUGH DEFENDANTS
HAVE A TOTAL MONOPOLY IN THESE CITIES OF THE "MARKET" - NAMELY, THE
"ACCREDITED CENTRAL STATION PROTECTIVE SERVICES."  AND WE ARE LED TO
THIS ODD RESULT EVEN THOUGH THERE IS IN THE RECORD ABUNDANT EVIDENCE
THAT CUSTOMERS SWITCH FROM ONE FORM OF PROPERTY PROTECTION TO ANOTHER,
AND NOT ALWAYS IN THE DIRECTION OF ACCREDITED CENTRAL STATION SERVICE. 

I BELIEVE THIS APPROACH HAS NO JUSTIFICATION IN ECONOMICS, REASON OR
LAW.  IT MIGHT BE SUPPORTABLE IF IT WERE FOUND THAT THE ACCREDITED
CENTRAL STATIONS OFFER SERVICES WHICH ARE UNIQUE IN THE SENSE THAT
POTENTIAL BUYERS - OR AT LEAST A SUBSTANTIAL, IDENTIFIABLE PART OF THE
TRADE - LOOK ONLY TO THEM FOR THE SERVICES IN QUESTION, AND THAT
NEITHER COST, TYPE, QUALITY OF SERVICE NOR OTHER FACTORS BRING
COMPETING SERVICES INTO THE MARKET.  THE FINDINGS HERE AND THE RECORD
DO NOT PERMIT THIS CONCLUSION. 

THE GOVERNMENT'S MARKET DEFINITION, ACCEPTED BY THE TRIAL COURT, IS A
DISTORTION WHICH INEVITABLY LEADS TO A SUPERFICIAL AND DISTORTED RESULT
EVEN IN THE HANDS OF A HIGHLY SKILLED JUDGE.  AS THIS COURT HELD IN
BROWN SHOE, SUPRA, THE "REASONABLE INTERCHANGEABILITY OF USE OR THE
CROSS-ELASTICITY OF DEMAND," DETERMINES THE BOUNDARIES OF A PRODUCT
MARKET.  370 U.S., AT 325.  SEE ALSO THE CELLOPHANE CASE, 351 U.S., AT
380.  IN PLAIN LANGUAGE, THIS MEANS THAT THE COURT SHOULD HAVE DEFINED
THE RELEVANT MARKET HERE TO INCLUDE ALL SERVICES WHICH, IN LIGHT OF
GEOGRAPHICAL AVAILABILITY, PRICE AND USE CHARACTERISTICS, ARE IN
REALISTIC RIVALRY FOR ALL OR SOME PART OF THE BUSINESS OF FURNISHING
PROTECTIVE SERVICES TO PREMISES.  IN THE PRESENT SITUATION, HOWEVER,
THE COURT'S OWN FINDINGS SHOW THAT PRACTICAL ALTERNATIVES ARE AVAILABLE
TO POTENTIAL USERS - ALTHOUGH THEY VARY FROM MARKET TO MARKET AND
POSSIBLY FROM USER TO USER.  THESE HAVE BEEN ARBITRARILY EXCLUDED FROM
THE COURT'S DEFINITION. 

I DO NOT SUGGEST THAT WIDE DISPARITIES IN QUALITY, PRICE AND CUSTOMER
APPEAL COULD NEVER AFFECT THE DEFINITION OF THE MARKET.  BUT THIS
FOLLOWS ONLY WHERE THE DISPARITIES ARE SO GREAT THAT THEY CREATE
SEPARATE AND DISTINCT CATEGORIES OF BUYERS AND SELLERS.  THE RECORD
HERE AND THE FINDINGS DO NOT APPROACH THIS STANDARD.  THEY FALL FAR
SHORT OF JUSTIFYING THE NARROWING OF THE MARKET AS PRACTICED HERE.  I
NEED REFER ONLY TO THE EXCLUSION OF NONACCREDITED CENTRAL STATIONS,
WHICH THE COURT SEEKS TO JUSTIFY BY REFERENCE TO DIFFERENTIALS IN
INSURANCE DISCOUNTS.  THESE DIFFERENTIALS MAY INDEED AFFECT THE
RELATIVE COST TO THE CONSUMER OF THE COMPETING MODES OF PROTECTION. 
BUT, IN THE ABSENCE OF PROOF THAT THEY RESULT IN ELIMINATING THE
COMPETING SERVICES FROM THE CATEGORY OF THOSE TO WHICH THE PURCHASER
"CAN PRACTICABLY TURN" FOR SUPPLIES,  (FN7) THEY DO NOT JUSTIFY SUCH
TOTAL EXCLUSION.  THIS SORT OF EXCLUSION OF THE SUPPOSEDLY NOT-QUITE-SO
ATTRACTIVE SERVICE FROM THE BASIC DEFINITION OF THE KINDS OF BUSINESS
AND SERVICE AGAINST WHICH DEFENDANTS' ACTIVITY WILL BE MEASURED, IS
ENTIRELY UNJUSTIFIED ON THIS RECORD.  (FN8) 

THE IMPORTANCE OF THIS KIND OF TRUNCATED MARKET DEFINITION VIVIDLY
APPEARS IF WE ARE TO SAY, AS THE TRIAL COURT HERE HELD, THAT IF
DEFENDANT HAS SO LARGE A FRACTION OF THE MARKET AS TO CONSTITUTE A
"PREDOMINANT" SHARE, A REBUTTABLE PRESUMPTION OF MONOPOLIZATION
FOLLOWS.  THE FRACTION DEPENDS UPON THE DENOMINATOR (THE "MARKET") AS
WELL AS THE NUMERATOR (THE DEFENDANTS' VOLUME).  CLEARLY, THIS
"PRESUMPTION" IS UNWARRANTED UNLESS THE "MARKET" IS DEFINED TO INCLUDE
ALL COMPETITORS.  THE CONTRARY IS NOT SUPPORTED BY THIS COURT'S
DECISIONS IN EITHER THE CELLOPHANE CASE, SUPRA, OR UNITED STATES V. DU
PONT & CO. (GENERAL MOTORS), 353 U.S. 586.  THE LATTER CASE DEFINED THE
MARKET IN TERMS OF THE TOTAL PRODUCTS WHICH COULD BE USED FOR THE
DEFINED PURPOSES:  AUTOMOBILE FABRICS AND FINISHES.  THIS EMBRACES THE
TOTAL RANGE OF OPTIONS FOR CUSTOMERS SEEKING THESE PRODUCTS.  ON THE
CONTRARY, AS THE RECORD HERE SHOWS AND AS THE FINDINGS, CANDIDLY READ,
IMPLY, SUBSTANTIAL OPTIONS EXIST FOR SERVICES OTHER THAN THROUGH
ACCREDITED CENTRAL STATIONS PROVIDING PROTECTIVE SERVICES.  THOSE
OPTIONS, WHETHER FOR ALL OR A PART OF THE SERVICES IN ISSUE, MUST BE
INCLUDED IN THE ASSESSMENT OF THE MARKET. 

IN THE OPINION WHICH THIS COURT HANDS DOWN TODAY, THERE IS
CONSIDERABLE DISCUSSION OF DEFENDANTS' ARGUMENT THAT THE MARKET SHOULD
BE "BROKEN DOWN" BY DIFFERENT TYPE OF SERVICE: E.G., BURGLAR
PROTECTION, FIRE PROTECTION, ETC.  THE COURT REJECTS THIS ON THE GROUND
THAT IT IS APPROPRIATE TO EVALUATE A "CLUSTER" OF SERVICES AS SUCH.  IT
POINTS TO PHILADELPHIA NAT. BANK, SUPRA, FOR SUPPORT FOR ITS APPROACH. 
IN THAT CASE, MR. JUSTICE BRENNAN'S OPINION FOR THE COURT CAREFULLY SET
OUT THE DISTINCTIVE CHARACTERISTICS OF BANKING SERVICES:  THAT SOME OF
THESE SERVICES (E.G., CHECKING ACCOUNTS) ARE VIRTUALLY FREE OF
COMPETITION FROM OTHER TYPES OF INSTITUTIONS, AND THAT OTHER SERVICES
ARE DISTINCTIVE IN COST OR OTHER CHARACTERISTICS.  374 U.S., AT 356
357.  SEE ALSO UNITED STATES V. FIRST NAT. BANK, 376 U.S. 665, 668 (PER
DOUGLAS, J.).  SIMILARLY, IN UNITED STATES V. PARAMOUNT PICTURES, 334
U.S. 131, AND INTERNATIONAL BOXING CLUB V. UNITED STATES, 358 U.S. 242,
249-252, "FIRST-RUN" MOVING PICTURES AND CHAMPIONSHIP BOXING MATCHES
WERE HELD SUFFICIENTLY DISTINCTIVE IN TERMS OF DEMAND IN THE MARKET
PLACE TO WARRANT CONSIDERATION AS SEPARATE MARKETS.    BUT NO SUCH
DISTINCTIVENESS EXISTS HERE.  AS I HAVE DISCUSSED, NEITHER THIS RECORD
NOR THE TRIAL COURT'S FINDINGS SHOW EITHER A DISTINCTIVE DEMAND OR A
SEPARABLE MARKET FOR "INSURANCE ACCREDITED CENTRAL STATION PROTECTIVE
SERVICES."  THE CONTRARY IS EVIDENT.  NONE OF THE SERVICES FURNISHED BY
ACCREDITED CENTRAL STATIONS IS UNIQUE, AS I HAVE DISCUSSED.  NOR IS
THERE EVEN A COMMON OR PREDOMINANT "CLUSTER" OF SERVICES OFFERED BY THE
CENTRAL STATIONS.  ONE OF THE DEFENDANTS, HOLMES, IS ENGAGED ONLY IN
THE BURGLARY ALARM BUSINESS.  ANOTHER, AFA, FURNISHES ONLY FIRE AND
WATERFLOW SERVICE.  ONLY ADT AMONG THE DEFENDANTS MAKES AVAILABLE TO
ITS CUSTOMERS THE FULL "CLUSTER." 

I DO NOT MEAN TO SUGGEST THAT THE GOVERNMENT MUST PROVE ITS CASE,
SERVICE BY SERVICE.  BUT IN DEFINING THE MARKET, INDIVIDUAL SERVICES,
EVEN IF FURNISHED IN ISOLATION, OUGHT TO BE SPECIFIED AND HERE, AS
DISTINGUISHED FROM THE CONCLUSION IMPELLED BY THE CIRCUMSTANCES IN
PHILADELPHIA NAT. BANK, SUPRA, COMPETITORS FOR INDIVIDUAL SERVICES
OUGHT TO BE TAKEN INTO ACCOUNT. 

I DO NOT INTEND BY ANY OF THE FOREGOING TO SUGGEST THAT, ON THIS
RECORD, THE RELIEF GRANTED BY THE TRIAL COURT AND THE SUBSTANTIALLY
MORE DRASTIC RELIEF ORDERED BY THIS COURT WOULD NECESSARILY BE
UNJUSTIFIED.  IT IS ENTIRELY POSSIBLE THAT MONOPOLY OR ATTEMPT TO
MONOPOLIZE MAY BE FOUND - AND PERHAPS FOUND WITH GREATER FORCE - IN
LOCAL SITUATIONS.  RELIEF ON A PERVASIVE, SYSTEM-WIDE, NATIONAL BASIS
MIGHT FOLLOW, AS DECREED BY THE TRIAL COURT, AS WELL AS DIVESTITURE IN
APPROPRIATE LOCAL SITUATIONS, AS DIRECTED BY THIS COURT.  IT IS
IMPOSSIBLE, I SUBMIT, TO MAKE THESE JUDGMENTS ON THE FINDINGS BEFORE US
BECAUSE OF THE DISTORTION DUE TO AN INCORRECT AND UNREAL DEFINITION OF
THE "RELEVANT MARKET."  NOW, BECAUSE OF THIS COURT'S MANDATE, THE
MARKET-BY-MARKET INQUIRY MUST BEGIN FOR PURPOSES OF THE DECREE.  BUT
THIS SHOULD HAVE BEEN THE FOUNDATION OF JUDGMENT, NOT ITS SUPERIMPOSED
CONCLUSION.  THIS INQUIRY SHOULD - IN MY OPINION, IT MUST - TAKE INTO
ACCOUNT THE TOTAL ECONOMIC SITUATION - ALL OF THE OPTIONS AVAILABLE TO
ONE SEEKING PROTECTION SERVICES.  IT SHOULD NOT BE LIMITED TO CENTRAL
STATIONS, AND CERTAINLY NOT TO "INSURANCE ACCREDITED CENTRAL STATION
PROTECTIVE SERVICES" WHICH THIS COURT SANCTIONS AS THE RELEVANT
MARKET.  SINCE I AM OF THE OPINION THAT DEFENDANTS AND THE COURTS ARE
ENTITLED TO A REAPPRAISAL OF THE LIABILITY CONSEQUENCES AS WELL AS THE
APPROPRIATE PROVISIONS OF THE DECREE ON THE BASIS OF A SOUND DEFINITION
OF THE MARKET, I WOULD REVERSE AND REMAND FOR THESE PURPOSES. 

FN1  UNITED STATES V. CONTINENTAL CAN CO., 378 U.S. 441, 447-458;
UNITED STATES V. ALCOA, 377 U.S. 271, 273-277; UNITED STATES V.
PHILADELPHIA NAT. BANK, 374 U.S. 321, 356; BROWN SHOE CO. V. UNITED
STATES, 370 U.S. 294, 324. 

FN2  THE DEFENDANTS CONSTITUTE 87% OF THE MARKET AS DEFINED.  ONE OF
THE DEFENDANTS ALONE, ADT, HAS 73%. 

FN3  SEE ALSO UNITED STATES V. FIRST NAT. BANK, 376 U.S. 665, 668
(PER DOUGLAS, J.); AMERICAN CRYSTAL SUGAR CO. V. CUBAN-AMERICAN SUGAR
CO., 152 F. SUPP. 387, 398 (D.C.S.D.N.Y. 1957), AFF'D, 259 F.2D 524
(C.A.2D CIR. 1958). 

FN4  THERE IS A DANGER THAT THIS COURT'S OPINION, ANTE, AT 575-576,
WILL BE READ AS SOMEWHAT OVERSTATING THE CASE.  THERE IS NEITHER
FINDING NOR RECORD TO SUPPORT THE IMPLICATION THAT RATES ARE TO ANY
SUBSTANTIAL EXTENT FIXED ON A NATIONWIDE BASIS, OR THAT THERE ARE
NATIONWIDE CONTRACTS WITH MULTISTATE BUSINESSES IN ANY SIGNIFICANT
DEGREE, OR THAT INSURERS INSPECT OR CERTIFY CENTRAL STATIONS ON A
NATIONWIDE BASIS. 

FN5  SEE ALSO BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 336
337. 

FN6  NONE OF THE STATIONS OPERATED BY DEFENDANT AUTOMATIC FIRE ALARM
COMPANY OFFERS BURGLARY PROTECTION, JUST AS NONE OF HOLMES' STATIONS
PROTECTS AGAINST THE RISK OF FIRE. 

FN7  TAMPA ELECTRIC CO. V. NASHVILLE COAL CO., 365 U.S., AT 327. 

FN8  THE EXAMPLE USED BY THE COURT IN ITS FINDINGS IS ILLUMINATING
AND DISTURBING.  IN EXPLANATION OF ITS NARROW MARKET DEFINITION, THE
COURT SAYS THAT THE DIFFERENCE BETWEEN THE ACCREDITED CENTRAL STATION
PROTECTIVE SERVICES AND ALL OTHERS "COULD BE COMPARED" TO THE
DIFFERENCE BETWEEN A COMPACT SIX-CYLINDER CAR AND A CHAUFFEUR-DRIVEN
SEDAN.  IT IS PROBABLY TRUE THAT THE DEGREE OF DIRECT COMPETITION
BETWEEN LUXURY AUTOMOBILES AND COMPACTS IS SLIGHT.  BUT IT IS BY NO
MEANS AS CLEAR-CUT AS THE TRIAL COURT SEEMS TO SUGGEST.  THE QUESTION
WOULD REQUIRE CAREFUL ANALYSIS IN LIGHT OF THE TOTAL FACTS AND ISSUES. 
FOR EXAMPLE, IF THE ANTITRUST PROBLEM AT HAND INVOLVED AN ACQUISITION
OF THE BUSINESS OF A MANUFACTURER OF COMPACTS BY A MAKER OF LUXURY
CARS, IT IS BY NO MEANS INCONCEIVABLE THAT SUFFICIENT COMPETITIVE
OVERLAP WOULD BE FOUND TO PLACE BOTH PRODUCTS IN THE "RELEVANT
MARKET." 
..END :






FEDERAL TRADE COMMISSION V. DEAN FOODS CO. 384 U.S. 597 


NO. 970.  ARGUED MARCH 28, 1966.  - DECIDED JUNE 13, 1966.  - 356 F.2D
481, REVERSED AND REMANDED. 


RESPONDENTS, TWO SUBSTANTIAL COMPETITORS IN THE SALE OF PACKAGED MILK
IN THE CHICAGO AREA, SIGNED A MERGER AGREEMENT FOLLOWING MEETINGS WITH
REPRESENTATIVES OF THE FEDERAL TRADE COMMISSION (FTC) WHO INDICATED
THAT THE MERGER WOULD RAISE SERIOUS QUESTIONS UNDER THE ANTITRUST
LAWS.  AT THE TIME OF THE MERGER ONE OF THE RESPONDENTS WAS THE THIRD
OR FOURTH LARGEST PACKAGED MILK DISTRIBUTOR IN THE AREA, THE OTHER AT
LEAST THE SECOND LARGEST, AND TOGETHER THEY ACCOUNTED FOR 23% OF AREA
SALES OF PACKAGED MILK.  THE FTC FILED A COMPLAINT CHARGING THAT THE
AGREEMENT VIOLATED SEC 7 OF THE CLAYTON ACT AND SEC 5 OF THE FEDERAL
TRADE COMMISSION ACT.  THEREAFTER THE FTC, UNDER THE ALL WRITS ACT, 28
U.S.C. SEC 1651(A), PETITIONED THE COURT OF APPEALS FOR A TEMPORARY
RESTRAINING ORDER AND A PRELIMINARY INJUNCTION TO MAINTAIN THE STATUS
QUO UNTIL THE FTC DETERMINED THE MERGER'S LEGALITY.  THE FTC ALLEGED
THE PROBABILITY OF ITS FINDING AN ANTITRUST VIOLATION AND THAT THE NEED
FOR INJUNCTIVE RELIEF WAS "COMPELLING" SINCE UNDER THE MERGER ONE OF
THE RESPONDENTS WOULD NO LONGER EXIST, ITS MILK ROUTES AND CERTAIN OF
ITS PLANTS AND EQUIPMENT WOULD BE SOLD AND ITS REMAINING ASSETS WOULD
BE CONSOLIDATED, PRECLUDING ITS RESTORATION AS A VIABLE INDEPENDENT
COMPANY IF THE MERGER WERE SUBSEQUENTLY RULED ILLEGAL.  THE PETITION
ALLEGED THAT THE COURT OF APPEALS WOULD CONSEQUENTLY BE DEPRIVED OF ITS
APPELLATE JURISDICTION OVER FINAL FTC ORDERS AND THE OPPORTUNITY TO
ENTER A MEANINGFUL ORDER OF ITS OWN.  THE COURT OF APPEALS ON THE
HEARING FOR A PRELIMINARY INJUNCTION DISMISSED THE PETITION ON THE
GROUND THAT THE FTC HAD NOT ENTERED A CEASE-AND-DESIST ORDER AND HAD NO
AUTHORITY TO INSTITUTE THE PROCEEDING, CONGRESS HAVING FAILED TO ENACT
BILLS INTRODUCED FOR SUCH A PURPOSE.  THE CONTRACT WAS THEN CLOSED. 
MR. JUSTICE CLARK ON APPLICATION ISSUED A PRELIMINARY INJUNCTION
AGAINST MATERIAL CORPORATE CHANGES IN THE ACQUIRED COMPANY AND
SUBSEQUENTLY THIS COURT GRANTED CERTIORARI.  HELD: 

1.  THE COURT OF APPEALS HAS JURISDICTION TO ISSUE A PRELIMINARY
INJUNCTION TO PREVENT CONSUMMATION OF THE MERGER AGREEMENT UPON A
SHOWING THAT AN EFFECTIVE REMEDIAL ORDER WOULD OTHERWISE BE VIRTUALLY
IMPOSSIBLE ONCE THE MERGER HAD BEEN IMPLEMENTED, THUS RENDERING A FINAL
DIVESTITURE DECREE FUTILE.  PP. 603-605. 

(A)  THE ALL WRITS ACT EXTENDS TO THE POTENTIAL JURISDICTION OF AN
APPELLATE COURT WHERE AN APPEAL IS NOT THEN PENDING BUT MAY LATER BE
PERFECTED.  PP. 603-604. 

(B)  THE GRANT IN SEC 11(C) OF THE CLAYTON ACT TO COURTS OF APPEALS
OF JURISDICTION TO REVIEW FINAL ORDERS OF THE FTC AGAINST ILLEGAL
MERGERS ON APPLICATION OF ANY PERSON REQUIRED THEREBY TO CEASE AND
DESIST SUCH VIOLATIONS INCLUDES THE TRADITIONAL POWER TO PRESERVE THE
STATUS QUO WHILE ADMINISTRATIVE PROCEEDINGS ARE IN PROGRESS TO PREVENT
IMPAIRMENT OF THE EFFECTIVE EXERCISE OF APPELLATE JURISDICTION.  CF.
WHITNEY NAT. BANK V. NEW ORLEANS BANK, 379 U.S. 411.  PP. 604-605. 

2.  THE FTC, UNDER THE CIRCUMSTANCES ALLEGED IN THIS CASE, HAS
STANDING TO SEEK PRELIMINARY RELIEF UNDER THE ALL WRITS ACT.  PP. 605
612. 

(A)  IT WOULD STULTIFY CONGRESS' PURPOSE IN ENTRUSTING THE FTC WITH
ENFORCEMENT OF THE CLAYTON ACT AND GRANTING IT THE POWER TO ORDER
DIVESTITURE IF THE FTC DID NOT HAVE THE INCIDENTAL POWER TO ASK THE
COURTS OF APPEALS TO EXERCISE THEIR AUTHORITY UNDER THE ALL WRITS ACT. 
PP. 606-612. 

(B)  THE POWER OF THE COURTS OF APPEALS TO GRANT PRELIMINARY RELIEF
HERE DERIVES FROM THE ALL WRITS ACT, NOT THE CLAYTON ACT.  P. 608. 

(C)  CONGRESS' FAILURE TO ENACT PROPOSALS THAT THE FTC BE EMPOWERED
ITSELF TO ISSUE PRELIMINARY RELIEF OR TO PROCEED IN DISTRICT COURTS FOR
THAT PURPOSE RELFECTS NO INTENT TO CIRCUMSCRIBE TRADITIONAL JUDICIAL
REMEDIES.  PP. 608-611. 

FEDERAL TRADE COMMISSION V. DEAN FOODS CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.  MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

AT ISSUE HERE IS THE POWER OF THE COURT OF APPEALS UNDER THE ALL
WRITS ACT, 28 U.S.C.  SEC 1651(A) (1964 ED.), TO TEMPORARILY ENJOIN THE
CONSUMMATION OF A MERGER THAT IS UNDER ATTACK BEFORE THE FEDERAL TRADE
COMMISSION AS VIOLATIVE OF SEC 7 OF THE CLAYTON ACT, AS AMENDED, 64
STAT. 1125, 15 U.S.C. SEC 18 (1964 ED.).  THIS CASE AROSE ON THE
APPLICATION OF THE COMMISSION FOR A TEMPORARY RESTRAINING ORDER AND A
PRELIMINARY INJUNCTION AGAINST RESPONDENTS DEAN FOODS COMPANY AND
BOWMAN DAIRY COMPANY TO MAINTAIN THE STATUS QUO UNTIL THE COMMISSION
DETERMINED THE LEGALITY OF THEIR MERGER.  THE COMMISSION ALLEGED THAT
IT HAD ISSUED A COMPLAINT AGAINST RESPONDENTS UNDER SEC 7 OF THE
CLAYTON ACT AND SEC 5 OF THE FEDERAL TRADE COMMISSION ACT, 38 STAT.
719, AS AMENDED, 52 STAT. 111, 15 U.S.C. SEC 45 (1964 ED.), AND THAT
FROM THE FACTS UNDERLYING THE COMPLAINT "IT IS PROBABLE THAT THE
FEDERAL TRADE COMMISSION WILL ENTER AN ORDER FINDING A VIOLATION OF
THESE LAWS."  THE PETITION STATED THAT THERE WAS A "COMPELLING" NEED
FOR PRELIMINARY RELIEF SINCE THE "ACQUISITION ITSELF WILL SPLIT BOWMAN
IN TWO - DEAN WILL ACQUIRE FIXED ASSETS, RECEIVABLES AND GOOD WILL;
BOWMAN WILL RETAIN ALL CASH, GOVERNMENT AND OTHER MARKETABLE
SECURITIES, AND SOME REAL ESTATE INVESTMENTS" FOR DISTRIBUTION TO ITS
STOCKHOLDERS.  (FN1)  IN ADDITION, IT WAS ALLEGED THAT DEAN PLANNED TO
DISPOSE OF MOST OF BOWMAN'S RETAIL MILK ROUTES, CERTAIN OF ITS PLANTS
AND EQUIPMENT, AND TO CONSOLIDATE THE REMAINING ASSETS.  THE COMMISSION
THUS ARGUED THAT IF THE MERGER WERE ALLOWED TO BE COMPLETED, "BOWMAN AS
AN ENTITY WILL NO LONGER EXIST," AND THAT IT "WILL BE 'EXTREMELY
DIFFICULT AND VERY PROBABLY IMPOSSIBLE'" TO RESTORE BOWMAN AS "A VIABLE
INDEPENDENT" COMPANY IF THE MERGER WERE SUBSEQUENTLY RULED ILLEGAL.  IN
OTHER WORDS, CONSUMMATION OF THE AGREEMENT WOULD "PREVENT THE
COMMISSION FROM DEVISING, OR RENDER IT EXTREMELY DIFFICULT FOR THE
COMMISSION TO DEVISE, ANY EFFECTIVE REMEDY AFTER ITS DECISION ON THE
MERITS."  AS GROUNDS FOR ISSUANCE OF AN EXTRAORDINARY WRIT, THE
COMMISSION ASSERTED THAT THE COURT OF APPEALS "WILL, IN EFFECT, BE
DEPRIVED OF ITS APPELLATE JURISDICTION (OVER FINAL COMMISSION ORDERS)
AND OF THE OPPORTUNITY TO ENTER A MEANINGFUL FINAL ORDER OF ITS OWN IN
RESPECT TO THIS ACQUISITION, SINCE THE RES IN CUSTODIA LEGIS - BOWMAN -
WILL HAVE VANISHED." 

THE COURT OF APPEALS ENTERED A TEMPORARY RESTRAINING ORDER AGAINST
RESPONDENTS, AS PRAYED.  ON THE HEARING FOR A PRELIMINARY INJUNCTION,
HOWEVER, IT DISSOLVED THE TEMPORARY RESTRAINING ORDER AND DISMISSED THE
PETITION FOR THE REASONS THAT "NO CEASE AND DESIST ORDER HAS BEEN
ENTERED BY THE COMMISSION RELATIVE TO THE SUBJECT MATTER IN THE CASE AT
BAR AND  ...  WE NOW HOLD THAT THE COMMISSION DID NOT HAVE AUTHORITY TO
INSTITUTE THIS PROCEEDING IN THIS COURT  ...  ."  IN ITS FINAL JUDGMENT
THE COURT OF APPEALS SUPPORTED ITS REFUSAL TO GRANT RELIEF AT THE
REQUEST OF THE COMMISSION BY REFERENCE TO THE FACT THAT: 

"IN THE 84TH CONGRESS AND IN THE 89TH CONGRESS BILLS SPONSORED BY THE
SAID COMMISSION WERE INTRODUCED, WHICH BILLS IF  ENACTED INTO LAW WOULD
HAVE CONFERRED UPON THE COMMISSION SUCH AUTHORITY AS IT IS ATTEMPTING
TO EXERCISE IN THE CASE NOW BEFORE THIS COURT, BUT THAT SAID MEASURES
WERE NOT ENACTED INTO LAW AND CONGRESS HAS NOT PROVIDED OTHERWISE FOR
BESTOWING THIS AUTHORITY UPON SAID COMMISSION."  356 F.2D 481, 482. 

A FEW HOURS AFTER THE COURT OF APPEALS ENTERED ITS ORDER ON JANUARY
19, 1966, THE CONTRACT WAS CLOSED AND DEAN ACQUIRED LEGAL TITLE TO
BOWMAN'S OPERATING ASSETS.  UPON APPLICATION BY THE SOLICITOR GENERAL
ON BEHALF OF THE COMMISSION, MR. JUSTICE CLARK, AFTER CONSULTING THE
OTHER MEMBERS OF THIS COURT, ENTERED A PRELIMINARY INJUNCTION ON
JANUARY 24, 1966, RESTRAINING RESPONDENTS FROM MAKING ANY MATERIAL
CHANGES WITH RESPECT TO BOWMAN'S CORPORATE STRUCTURE OR THE ASSETS
PURCHASED.  THIS ORDER PROVIDED THAT DEAN MIGHT SELL BOWMAN'S RETAIL
HOME DELIVERY ROUTES UPON TERMS AND CONDITIONS ACCEPTABLE TO THE
COMMISSION, BUT THAT ANY MILK SUPPLIED BY DEAN TO THE PURCHASERS OF THE
ROUTES MUST CONTINUE TO BE DELIVERED UNDER THE BOWMAN LABEL AND FROM
FORMER BOWMAN PLANTS.  WE GRANTED CERTIORARI ON FEBRUARY 18, 1966, 383
U.S. 901, AND EXPEDITED CONSIDERATION OF THIS CASE.  WE CONCLUDE THAT
THE COURT OF APPEALS ERRED AND REVERSE ITS JUDGMENT. 

                               I. 

SINCE THE CASE COMES TO US FROM A DISMISSAL ON JURISDICTIONAL GROUNDS
WE MUST TAKE THE ALLEGATIONS OF THE COMMISSION'S APPLICATION FOR A
PRELIMINARY INJUNCTION AS TRUE.  WE NEED NOT DETAIL THE FACTS FURTHER
THAN TO SAY THAT DEAN AND BOWMAN WERE SUBSTANTIAL COMPETITORS IN THE
SALE OF PACKAGED MILK IN THE CHICAGO AREA, ONE OF THE LARGEST MARKETS
IN THE UNITED STATES FOR PACKAGED MILK.  ON NOVEMBER 2, 1965, ATTORNEYS
FOR DEAN AND BOWMAN MET WITH REPRESENTATIVES OF THE COMMISSION TO
DISCUSS A PROPOSAL BY DEAN TO PURCHASE ALL OF BOWMAN'S PLANTS AND
EQUIPMENT, THE BOWMAN NAME, ALL CUSTOMER AND SUPPLIER LISTS TOGETHER
WITH THE BENEFIT OF THEIR RELATIONSHIPS, AND VARIOUS OTHER ASSETS, ALL
OF WHICH WERE SITUATED IN THE CHICAGO AREA.  BOWMAN WOULD CONSEQUENTLY
CEASE DOING A DAIRY BUSINESS THERE.  IT WAS EMPHASIZED THAT THE INQUIRY
WAS MERELY TO ASCERTAIN THE VIEWS OF THE STAFF OF THE COMMISSION AND
NOT TO SECURE A FORMAL ADVISORY OPINION.  AFTER INVESTIGATION, ON
DECEMBER 3, 1965, THE COMMISSION'S STAFF ADVISED DEAN'S COUNSEL THAT IT
BELIEVED THE ACQUISITION WOULD RAISE SERIOUS QUESTIONS UNDER THE
ANTITRUST LAWS, AND THAT ON THE BASIS OF EXISTING INFORMATION THE STAFF
WOULD RECOMMEND THAT THE COMMISSION ISSUE A COMPLAINT AGAINST THE
ACQUISITION IF CONSUMMATED.  AFTER FURTHER MEETINGS, DEAN'S COUNSEL
INFORMED THE COMMISSION'S STAFF ON DECEMBER 14, 1965, THAT THE
AGREEMENT HAD BEEN SIGNED.  A WEEK LATER THE COMMISSION ISSUED A FORMAL
COMPLAINT CHARGING THAT THE AGREEMENT VIOLATED SEC 7 OF THE CLAYTON ACT
AND SEC 5 OF THE FEDERAL TRADE COMMISSION ACT. 

IT APPEARS THAT AT THE TIME OF THE MERGER DEAN WAS THE THIRD OR
FOURTH LARGEST DISTRIBUTOR OF PACKAGED MILK IN THE CHICAGO AREA; BOWMAN
WAS AT LEAST THE SECOND LARGEST IN THAT MARKET; AND TOGETHER THEY
ENJOYED APPROXIMATELY 23% OF THE SALES OF PACKAGED MILK IN THE SAME
AREA, WHILE THE FOUR LARGEST DAIRY COMPANIES HAD A 43% SHARE THEREOF. 
AFFIDAVITS ATTACHED TO THE COMMISSION'S APPLICATION ALLEGED THAT
BETWEEN 1954 AND 1965 THE NUMBER OF PACKAGED MILK SELLERS IN THE
CHICAGO MARKET HAD DECLINED FROM 107 TO 57, AND THAT IN THE FOUR MONTHS
PRIOR TO THE FILING OF THE COMPLAINT FOUR MORE FIRMS HAD BEEN
ELIMINATED BY ACQUISITIONS.  FROM THESE STATISTICS IT WAS CONCLUDED
THAT THE EFFECT OF DEAN'S ACQUISITION OF BOWMAN WOULD BE TO
SUBSTANTIALLY LESSEN COMPETITION.  WE PLACE IN THE MARGIN THE
COMMISSION'S SUMMATION OF ITS COMPLAINT.  (FN2)

                                        II. 

THE ALL WRITS ACT, 28 U.S.C. SEC 1651(A), EMPOWERS THE FEDERAL COURTS
TO "ISSUE ALL WRITS NECESSARY OR APPROPRIATE IN AID OF THEIR RESPECTIVE
JURISDICTIONS AND AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW."  THE
EXERCISE OF THIS POWER "IS IN THE NATURE OF APPELLATE JURISDICTION"
WHERE DIRECTED TO AN INFERIOR COURT, EX PARTE CRANE, 5 PET. 190, 193
(1832) (MARSHALL, C.J.), AND EXTENDS TO THE POTENTIAL JURISDICTION OF
THE APPELLATE COURT WHERE AN APPEAL IS NOT THEN PENDING BUT MAY BE
LATER PERFECTED.  CF. EX PARTE BRADSTREET, 7 PET.  634 (1833)(MARSHALL,
C.J.).  THESE HOLDINGS BY CHIEF JUSTICE MARSHALL ARE ELABORATED IN A
LONG LINE OF CASES, INCLUDING MCCLELLAN V. CARLAND, 217 U.S. 268
(1910), WHERE MR. JUSTICE DAY HELD:  "WE THINK IT THE TRUE RULE THAT
WHERE A CASE IS WITHIN THE APPELLATE JURISDICTION OF THE HIGHER COURT A
WRIT  ...  MAY ISSUE IN AID OF THE APPELLATE JURISDICTION WHICH MIGHT
OTHERWISE BE DEFEATED  ...  ."  AT 280.  AND IN ROCHE V. EVAPORATED
MILK ASSN., 319 U.S. 21 (1943), CHIEF JUSTICE STONE STATED THAT THE
AUTHORITY OF THE APPELLATE COURT "IS NOT CONFINED TO THE ISSUANCE OF
WRITS IN AID OF A JURISDICTION ALREADY ACQUIRED BY APPEAL BUT EXTENDS
TO THOSE CASES WHICH ARE WITHIN ITS APPELLATE JURISDICTION ALTHOUGH NO
APPEAL HAS BEEN PERFECTED."  AT 25.  LIKEWISE, DECISIONS OF THIS COURT
"HAVE RECOGNIZED A LIMITED JUDICIAL POWER TO PRESERVE THE COURT'S
JURISDICTION OR MAINTAIN THE STATUS QUO BY INJUNCTION PENDING REVIEW OF
AN AGENCY'S ACTION THROUGH THE PRESCRIBED STATUTORY CHANNELS  ...  .
SUCH POWER HAS BEEN DEEMED MERELY INCIDENTAL TO THE COURTS'
JURISDICTION TO REVIEW FINAL AGENCY ACTION  ...  ."  ARROW TRANSP.  CO.
V. SOUTHERN R. CO., 372 U.S. 658, 671, N. 22 (1963).  THERE THE COURT
CITED SUCH AUTHORITY AS SCRIPPS-HOWARD RADIO, INC. V. FEDERAL
COMMUNICATIONS COMM'N, 316 U.S. 4 (1942); WEST INDIA FRUIT & S.S. CO.
V. SEATRAIN LINES, INC., 170 F.2D 775 (C.A.2D CIR. 1948); AND BOARD OF
GOVERNORS V. TRANSAMERICA CORP., 184 F.2D 311 (C.A. 9TH CIR.), CERT.
DENIED, 340 U.S. 883 (1950). 

SEC 21(C), GIVES EXCLUSIVE JURISDICTION TO REVIEW FINAL ORDERS BY THE
COMMISSION AGAINST ILLEGAL MERGERS, ON APPLICATION OF "ANY PERSON
REQUIRED BY SUCH ORDER  ...  TO CEASE AND DESIST FROM ANY SUCH
VIOLATION," TO THE COURTS OF APPEALS "FOR ANY CIRCUIT WITHIN WHICH SUCH
VIOLATION OCCURRED OR WITHIN WHICH SUCH PERSON RESIDES OR CARRIES ON
BUSINESS."  THIS GRANT INCLUDES THE TRADITIONAL POWER TO ISSUE
INJUNCTIONS TO PRESERVE THE STATUS QUO WHILE ADMINISTRATIVE PROCEEDINGS
ARE IN PROGRESS AND PREVENT IMPAIRMENT OF THE EFFECTIVE EXERCISE OF
APPELLATE JURISDICTION.  CF. CONTINENTAL ILL. NAT. BANK V. CHICAGO,
R.I.&P.R. CO., 294 U.S. 648, 675 (1935).  A RECENT CASE INVOLVING A
SIMILAR STATUTORY PROCEEDING IS DISPOSITIVE OF THIS ISSUE.  WHITNEY
NAT. BANK V. NEW ORLEANS BANK, 379 U.S. 411 (1965), RAISED THE QUESTION
WHETHER HOLDING COMPANIES WERE "LAWFULLY ENTITLED" TO OPERATE
SUBSIDIARY BANKS WITHIN LOUISIANA, A QUESTION WE HELD SHOULD BE
DETERMINED IN THE FIRST INSTANCE BY THE FEDERAL RESERVE BOARD.  WE
FURTHER CONCLUDED THAT THE BOARD SHOULD RECONSIDER ITS INITIAL APPROVAL
OF SUCH A PLAN IN LIGHT OF AN INTERVENING LOUISIANA STATUTE, AND SO
GAVE THE PARTIES, WHO HAD SOUGHT REVIEW OF THE BOARD'S ORDER BEFORE THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT, AN OPPORTUNITY TO MOVE THAT THE
CASE BE REMANDED TO THE BOARD.  IT WAS NOTED THAT THE COURT OF APPEALS
HAD AUTHORITY "TO ISSUE SUCH ORDERS AS WILL PROTECT ITS JURISDICTION
PENDING FINAL DETERMINATION OF THE MATTER," AT 415, AND THAT SEC
1651(A) EMPOWERED IT TO STAY "THE ORDER OF APPROVAL OF THE FEDERAL
RESERVE BOARD PENDING FINAL DISPOSITION OF THE REVIEW PROCEEDING."  AT
425.  IN RESPONSE TO THE ARGUMENT THAT THE STAY WOULD NOT BE SUFFICIENT
BECAUSE THE COMPTROLLER OF CURRENCY NONETHELESS INTENDED TO ISSUE A
CERTIFICATE TO THE BANK, WE STATED THAT IF "THE COURT OF APPEALS SHOULD
FIND IT NECESSARY TO TAKE DIRECT ACTION TO MAINTAIN THE STATUS QUO AND
PREVENT THE OPENING OF THE BANK, IT HAS AMPLE POWER TO DO SO" BY AN
INJUNCTION AGAINST THE APPLICANTS BEFORE THE FEDERAL RESERVE BOARD
THEMSELVES.  AT 426.  SUCH ACTION WOULD BE ANALOGOUS TO THE RELIEF
REQUESTED HERE BY THE COMMISSION.  (FN3) 

THESE DECISIONS FURNISH AMPLE PRECEDENT TO SUPPORT JURISDICTION OF
THE COURT OF APPEALS TO ISSUE A PRELIMINARY INJUNCTION PREVENTING THE
CONSUMMATION OF THIS AGREEMENT UPON A SHOWING THAT AN EFFECTIVE
REMEDIAL ORDER, ONCE THE MERGER WAS IMPLEMENTED, WOULD OTHERWISE BE
VIRTUALLY IMPOSSIBLE, THUS RENDERING THE ENFORCEMENT OF ANY FINAL
DECREE OF DIVESTITURE FUTILE. 

           III. 

DEAN AND BOWMAN INSIST, HOWEVER, THAT AS A CREATURE OF STATUTE THE
COMMISSION MAY EXERCISE ONLY THOSE FUNCTIONS DELEGATED TO IT BY
CONGRESS, AND THAT CONGRESS HAS FAILED TO GIVE THE COMMISSION EXPRESS
STATUTORY AUTHORITY TO REQUEST PRELIMINARY RELIEF UNDER THE ALL WRITS
ACT.  (FN4)  BUT THE COMMISSION IS A GOVERNMENTAL AGENCY TO WHICH
CONGRESS HAS ENTRUSTED, INTER ALIA, THE ENFORCEMENT OF THE CLAYTON ACT,
GRANTING IT THE POWER TO ORDER DIVESTITURE IN APPROPRIATE CASES.  AT
THE SAME TIME, CONGRESS HAS GIVEN THE COURTS OF APPEALS JURISDICTION TO
REVIEW FINAL COMMISSION ACTION.  IT WOULD STULTIFY CONGRESSIONAL
PURPOSE TO SAY THAT THE COMMISSION DID NOT HAVE THE INCIDENTAL POWER TO
ASK THE COURTS OF APPEALS TO EXERCISE THEIR AUTHORITY DERIVED FROM THE
ALL WRITS ACT.  (FN5)  INDEED, THE OPINIONS IN ARROW TRANSP.  CO. AND
WHITNEY NAT. BANK NECESSARILY RECOGNIZED THE STANDING OF ADMINISTRATIVE
AGENCIES TO SEEK SUCH PRELIMINARY RELIEF TO ENSURE EFFECTIVE JUDICIAL
REVIEW.  BOTH DECISIONS REFERRED TO BOARD OF GOVERNORS V. TRANSAMERICA
CORP., SUPRA, WHERE THE COURT OF APPEALS STAYED A MERGER ON APPLICATION
BY THE FEDERAL RESERVE BOARD.  SEE ALSO PUBLIC UTILITIES COMM'N V.
CAPITAL TRANSIT CO., 94 U.S. APP. D.C. 140, 214 F.2D 242 (1954), AND
WEST INDIA FRUIT & S.S. CO. V. SEATRAIN LINES, INC., 170 F.2D 775, 779
(C.A.2D CIR. 1948).  THERE IS NO EXPLICIT STATUTORY AUTHORITY FOR THE
COMMISSION TO APPEAR IN JUDICIAL REVIEW PROCEEDINGS, BUT NO ONE HAS
CONTENDED IT CANNOT APPEAR IN THE COURTS OF APPEALS TO DEFEND ITS
ORDERS.  NOR HAS IT EVER BEEN ASSERTED THAT THE COMMISSION COULD NOT
BRING CONTEMPT ACTIONS IN THE APPROPRIATE COURT OF APPEALS WHEN THE
COURT'S ENFORCEMENT ORDERS WERE VIOLATED, THOUGH IT HAS NO STATUTORY
AUTHORITY IN THIS RESPECT.  SUCH ANCILLARY POWERS HAVE ALWAYS BEEN
TREATED AS ESSENTIAL TO THE EFFECTIVE DISCHARGE OF THE COMMISSION'S
RESPONSIBILITIES.    IT MUST BE REMEMBERED THAT THE COURTS OF APPEALS
DERIVE THEIR POWER TO GRANT PRELIMINARY RELIEF HERE NOT FROM THE
CLAYTON ACT, BUT FROM THE ALL WRITS ACT AND ITS PREDECESSORS DATING
BACK TO THE FIRST JUDICIARY ACT OF 1789.  CONGRESS HAS NEVER RESTRICTED
THE POWER WHICH THE COURTS OF APPEALS MAY EXERCISE UNDER THAT ACT.  NOR
HAS IT WITHDRAWN FROM THE COMMISSION ITS INHERENT STANDING AS A SUITOR
TO SEEK PRELIMINARY RELIEF IN COURTS OF APPROPRIATE JURISDICTION. 
(FN6)  IN THE ABSENCE OF EXPLICIT DIRECTION FROM CONGRESS WE HAVE NO
BASIS TO SAY THAT AN AGENCY CHARGED WITH PROTECTING THE PUBLIC INTEREST
CANNOT REQUEST THAT A COURT OF APPEALS, HAVING JURISDICTION TO REVIEW
ADMINISTRATIVE ORDERS, EXERCISE ITS EXPRESS AUTHORITY UNDER THE ALL
WRITS ACT TO ISSUE SUCH TEMPORARY INJUNCTIONS AS MAY BE NECESSARY TO
PROTECT ITS OWN JURISDICTION. 

RESPONDENTS POINT - AS DID THE COURT OF APPEALS - TO THE FACT THAT
THE COMMISSION SOUGHT AUTHORITY FROM THE EIGHTY-FOURTH THROUGH THE
EIGHTY-NINTH CONGRESSES TO GRANT PRELIMINARY INJUNCTIONS ITSELF OR TO
PROCEED IN THE DISTRICT COURT AS THE DEPARTMENT OF JUSTICE CAN UNDER
THE CLAYTON ACT.  (FN7) BOTH FORMER CHAIRMAN GWYNNE AND CHAIRMAN DIXON
APPEARED IN SUPPORT OF THE MEASURES,  (FN8) AND REFERRED TO FEDERAL
TRADE COMM'N V. INTERNATIONAL PAPER CO., 241 F.2D 372 (C.A.2D CIR.
1956), WHICH HELD THE COMMISSION HAD NO STANDING TO SEEK PRELIMINARY
INJUNCTIONS FROM THE COURTS OF APPEALS.  (FN9)  IN ADDITION, SEVERAL
CONGRESSMEN MADE STATEMENTS REGARDING THE NEED FOR STATUTORY
AMENDMENT.  (FN10)  HOWEVER, NO PROPOSAL WAS PUT BEFORE THE CONGRESS
RELATING TO THE AUTHORITY OF THE COMMISSION TO SECURE PRELIMINARY
RELIEF BEFORE THE COURTS OF APPEALS IN ACCORDANCE WITH SEC 1651(A). 
THE PROPOSALS CONCERNED ONLY THE POWER OF THE COMMISSION ITSELF TO
ISSUE PRELIMINARY RELIEF OR TO PROCEED IN THE DISTRICT COURTS FOR THAT
PURPOSE. 

CONGRESS NEITHER ENACTED NOR REJECTED THESE PROPOSALS; IT SIMPLY DID
NOT ACT ON THEM.  (FN11) EVEN IF IT HAD, THE LEGISLATION AS PROPOSED
WOULD HAVE HAD NO EFFECT WHATEVER ON THE POWER THAT CONGRESS GRANTED
THE COURTS BY THE ALL WRITS ACT.  WE CANNOT INFER FROM THE FACT THAT
CONGRESS TOOK NO ACTION AT ALL ON THE REQUEST OF THE COMMISSION TO
GRANT IT OR A DISTRICT COURT POWER TO ENJOIN A MERGER THAT CONGRESS
THEREBY EXPRESSED AN INTENT TO CIRCUMSCRIBE TRADITIONAL JUDICIAL
REMEDIES.  CF. SCRIPPS-HOWARD RADIO, INC. V. FEDERAL COMMUNICATIONS
COMM'N, 316 U.S. 4, 11 (1942).  THE DECISION IN WONG YANG SUNG V.
MCGRATH, 339 U.S. 33 (1950), IS APPOSITE.  FOLLOWING AN ADVERSE
DECISION IN EISLER V. CLARK, 77 F. SUPP. 610 (D.D.C. 1948), THE
DEPARTMENT OF JUSTICE ASKED CONGRESS FOR LEGISLATION EXEMPTING THE
IMMIGRATION SERVICE FROM THE ADMINISTRATIVE PROCEDURE ACT.  60 STAT.
237, 5 U.S.C. SEC 1001 (1964 ED.).  AS WAS THE CASE HERE, THE
APPROPRIATE COMMITTEES OF BOTH HOUSES REPORTED THE PROPOSAL FAVORABLY
BUT CONGRESS ADJOURNED WITHOUT TAKING ANY ACTION.  THE DEPARTMENT
NONETHELESS INISTED IN WONG YANG SUNG THAT HEARINGS IN DEPORTATION
CASES DID NOT HAVE TO CONFORM TO THE REQUIREMENTS OF THE ADMINISTRATIVE
PROCEDURE ACT.  IN HIS DISCUSSION OF LEGISLATIVE HISTORY.  MR. JUSTICE
JACKSON WROTE FOR A UNANIMOUS COURT THAT "WE WILL NOT DRAW THE
INFERENCE, URGED BY PETITIONER, THAT AN AGENCY ADMITS THAT IT IS ACTING
UPON A WRONG CONSTRUCTION BY SEEKING RATIFICATION FROM CONGRESS. 
PUBLIC POLICY REQUIRES THAT AGENCIES FEEL FREE TO ASK LEGISLATION WHICH
WILL TERMINATE OR AVOID ADVERSE CONTENTIONS AND LITIGATIONS."  AT P.
47.  THIS COURT HAS CONSISTENTLY REFUSED TO CONSTRUE SUCH REQUESTS BY
GOVERNMENT AGENCIES AND THE RESULTING NONACTION OF THE CONGRESS AS
AFFIRMATIVE EVIDENCE OF NO AUTHORITY.  (FN12)  THUS, IN UNITED STATES
V. DU PONT & CO., 353 U.S. 586 (1957), MR. JUSTICE BRENNAN HELD: 

"DURING THE 35 YEARS BEFORE THIS ACTION WAS BROUGHT (IN 1949), THE
GOVERNMENT DID NOT INVOKE SEC 7 AGAINST VERTICAL ACQUISITIONS.  THE
FEDERAL TRADE COMMISSION HAS SAID THAT THE SECTION DID NOT APPLY TO
VERTICAL ACQUISITIONS.  SEE F.T.C., REPORT ON CORPORATE MERGERS AND
ACQUISITIONS, 168 (1955), H.R. DOC. NO. 169, 84TH CONG., 1ST SESS.
ALSO, THE HOUSE COMMITTEE, CONSIDERING THE 1950 REVISION OF SEC 7
STATED THAT '  ...  IT HAS BEEN THOUGHT BY SOME THAT THIS LEGISLATION
(THE 1914 ACT) APPLIES ONLY TO THE SO-CALLED HORIZONTAL MERGERS  ...
.'  H.R. REP. NO. 1191, 81ST CONG., 1ST SESS. 11.  THE HOUSE REPORT
ADDS, HOWEVER, THAT THE 1950 AMENDMENT WAS PURPOSED '  ...  TO MAKE IT
CLEAR THAT THE BILL APPLIES TO ALL TYPES OF MERGERS AND ACQUISITIONS,
VERTICAL AND CONGLOMERATE AS WELL AS HORIZONTAL  ...  .' 

"THIS COURT HAS THE DUTY TO RECONCILE ADMINISTRATIVE INTERPRETATIONS
WITH THE BROAD ANTITRUST POLICIES LAID DOWN BY CONGRESS  ...  .  THE
FAILURE OF THE COMMISSION TO ACT IS NOT A BINDING ADMINISTRATIVE
INTERPRETATION THAT CONGRESS DID NOT INTEND VERTICAL ACQUISITIONS TO
COME WITHIN THE PURVIEW OF THE 1914 ACT."  AT P. 590. 

DESPITE THE REPRESENTATIONS OF THE COMMISSION THAT THE 1914 ACT DID
NOT APPLY TO VERTICAL MERGERS, ITS SPONSORSHIP OF LEGISLATION TO SO
ENLARGE ITS COVERAGE, AND THE PASSAGE OF THE 1950 ACT BY THE CONGRESS
FOR THIS PURPOSE, THIS COURT NONETHELESS HELD THAT THE 1914 ACT
INCLUDED VERTICAL MERGERS FROM ITS VERY INCEPTION, AND THUS REQUIRED DU
PONT TO DIVEST ITS INTEREST IN GENERAL MOTORS STOCK, WHICH HAD BEEN
ACQUIRED IN 1915. 

IT IS THEREFORE CLEAR THAT THE "PROCEEDINGS" IN THE CONGRESS WITH
REFERENCE TO THE AUTHORITY OF THE COMMISSION ITSELF TO ISSUE OR APPLY
TO THE DISTRICT COURTS FOR THE ISSUANCE OF PRELIMINARY INJUNCTIONS IN
MERGER CASES HAVE NO RELEVANCE WHATEVER TO THE QUESTION BEFORE US.  IN
SHORT, CONGRESS GAVE NO ATTENTION TO THE EXERCISE OF JUDICIAL POWER BY
THE COURTS OF APPEALS UNDER THE ALL WRITS ACT, LEAVING THAT POWER
INTACT AND THE STANDING OF THE COMMISSION TO INVOKE IT UNDIMINISHED. 
WE THUS HOLD THAT THE COMMISSION HAS STANDING TO SEEK PRELIMINARY
RELIEF FROM THE COURT OF APPEALS UNDER THE CIRCUMSTANCES ALLEGED.  AS
STATED EARLIER, WE MUST TAKE THE ALLEGATIONS OF THE COMMISSION AS TRUE,
AND SO DO NOT PASS UPON WHETHER A PRELIMINARY INJUNCTION SHOULD BE
ISSUED.  THAT IS FOR THE COURT OF APPEALS TO DECIDE ON REMAND, AS IT
WOULD DECIDE ANY APPLICATION TO IT FOR RELIEF UNDER THE ALL WRITS ACT. 
REVERSED AND REMANDED. 

FN1  SINCE CONSUMMATION OF THE MERGER ALL ASSETS OF BOWMAN, WITH THE
EXCEPTION OF CASH AND MARKETABLE SECURITIES WHICH WERE EXEMPTED FROM
THE PURCHASE AGREEMENT, HAVE BEEN TRANSFERRED TO DEAN.  BOWMAN HAS
CEASED DAIRY OPERATIONS AND NOW ACTS AS AN INVESTMENT FUND, HAVING
RECEIVED AND INVESTED THE PROCEEDS OF THE SALE. 

FN2  THE FEDERAL TRADE COMMISSION ALLEGED: 

"(A)  ACTUAL OR POTENTIAL COMPETITION IN THE SALE AND DISTRIBUTION OF
PACKAGED MILK IN THE CHICAGO AREA WILL BE ELIMINATED OR PREVENTED: 

"(B)  DEAN, A MAJOR COMPETITIVE FACTOR IN THE SALE AND DISTRIBUTION
OF PACKAGED MILK IN THE CHICAGO AREA, WILL ELIMINATE BOWMAN, ANOTHER
MAJOR COMPETITIVE FACTOR IN THE SALE AND DISTRIBUTION OF PACKAGED MILK
IN THE CHICAGO AREA: 

"(C)  CONCENTRATION IN THE SALE AND DISTRIBUTION OF PACKAGED MILK IN
THE CHICAGO AREA WILL BE INCREASED AND DECONCENTRATION WILL BE
PREVENTED: 

"(D)  THE RESTRAINING INFLUENCE ON NON-COMPETITIVE BEHAVIOR IN THE
SALE AND DISTRIBUTION OF PACKAGED MILK IN THE CHICAGO AREA, WHICH
EXISTED BY REASON OF THE INDEPENDENT OPERATION OF BOWMAN, WILL BE
ELIMINATED: 

"(E)  THE ACQUISITION WILL CONTRIBUTE TO THE OVER-ALL TREND TOWARD
CONCENTRATION IN THE SALE AND DISTRIBUTION OF PACKAGED MILK IN THE
UNITED STATES  ...  THEREBY TENDING TO BRING ABOUT THE ADVERSE
COMPETITIVE EFFECTS DESCRIBED ELSEWHERE IN THE COMPLAINT: 

"(F)  THE EMERGENCE OR GROWTH OF SMALLER PACKAGED MILK COMPANIES IN
THE CHICAGO AREA WILL BE RETARDED, DISCOURAGED OR PREVENTED: 

"(G)  THE MEMBERS OF THE CONSUMING PUBLIC, IN THE CHICAGO AREA AND
THROUGHOUT THE UNITED STATES, WILL BE DENIED THE BENEFITS OF FREE AND
OPEN COMPETITION IN THE SALE AND DISTRIBUTION OF PACKAGED MILK." 

FN3  OF COURSE, THE COURTS OF APPEALS HAVE TRADITIONALLY FRAMED SEC
1651(A) WRITS IN THE FORM OF COMPULSORY INJUNCTIONS AIMED AT PRIVATE
PARTIES.  E.G., APPLICATION OF PRESIDENT & DIRECTORS OF GEORGETOWN
COLLEGE, 118 U.S. APP. D.C. 80, 331 F.2D 1000, CERT. DENIED, 377 U.S.
978 (1964).  SEE RECENT CASES, 77 HARV. L. REV. 1539, 1542 (1964). 

FN4  FOR THE PROPOSITION THAT THE COMMISSION MUST HAVE EXPRESS
STATUTORY AUTHORITY TO SEEK INJUNCTIONS IN THE COURTS OF APPEALS TWO
CASES ARE CITED.  THE FIRST, HUMPHREY'S EXECUTOR V. UNITED STATES, 295
U.S. 602 (1935), HAS NO RELEVANCE TO OUR PROBLEM.  AND THE OTHER,
FEDERAL TRADE COMM'N V. EASTMAN KODAK CO., 274 U.S. 619, 623-625
(1927), EVEN THOUGH APPOSITE, HAS BEEN REPUDIATED.  IT HELD THAT IN
FASHIONING A FINAL DECREE THE COMMISSION "EXERCISES ONLY THE
ADMINISTRATIVE FUNCTIONS DELEGATED TO IT BY THE ACT," AND, THEREFORE,
COULD NOT ORDER DIVESTITURE OF LABORATORIES ACQUIRED THROUGH A STOCK
PURCHASE.  THIS VIEW WAS REJECTED IN PAN AMERICAN WORLD AIRWAYS, INC.
V. UNITED STATES, 371 U.S. 296, 312-313, NN. 17-18 (1963), THE COURT
HOLDING THAT "THE POWER TO ORDER DIVESTITURE NEED NOT BE EXPLICITLY
INCLUDED IN THE POWERS OF AN ADMINISTRATIVE AGENCY TO BE PART OF ITS
ARSENAL OF AUTHORITY," CITING GILBERTVILLE TRUCKING CO. V. UNITED
STATES, 371 U.S. 115 (1962). 

FN5  SUCH A HOLDING WOULD ESPECIALLY INTERFERE WITH THE FUNCTIONS
CONGRESS HAS GIVEN THE COMMISSION IN THE MERGER FIELD.  AS THE CHIEF
JUSTICE STATED IN BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294 (1962),
THE CONGRESS "SOUGHT TO ASSURE THE FEDERAL TRADE COMMISSION AND THE
COURTS THE POWER TO BRAKE THIS FORCE (BUSINESS CONCENTRATION) AT ITS
OUTSET AND BEFORE IT GATHERED MOMENTUM."  AT 317-318.  BUT WITHOUT
STANDING TO SECURE INJUNCTIVE RELIEF, AND THEREBY SAFEGUARD ITS ABILITY
TO ORDER AN EFFECTIVE DIVESTITURE OF ACQUIRED PROPERTIES, THE
COMMISSION'S EFFORTS WOULD BE FRUSTRATED.   AS MR. JUSTICE DOUGLAS SAID
IN UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 186 (1944): 

"THE ACQUISITION OF A COMPETING THEATRE TERMINATES AT ONCE ITS
COMPETITION  ...  .  AND WHERE BUSINESSES HAVE BEEN MERGED OR PURCHASED
AND CLOSED OUT IT IS COMMONLY IMPOSSIBLE TO TURN BACK THE CLOCK." 

HERE THE PLAN OF MERGER ITSELF CONTEMPLATES THE SALE OF THE ACQUIRED
HOME DELIVERY MILK ROUTES AND CERTAIN MILK PLANTS.  IN ADDITION, BOWMAN
HAS RETAINED ITS CASH AND SECURITIES WITH THE INTENTION ULTIMATELY TO
DISTRIBUTE THEM TO ITS STOCKHOLDERS.  IF CONSUMMATION OF THE MERGER IS
NOT RESTRAINED, THE RESTORATION OF BOWMAN AS AN EFFECTIVE AND VIABLE
COMPETITOR WILL OBVIOUSLY BE IMPOSSIBLE BY THE TIME A FINAL ORDER IS
ENTERED.  THIS IS NOT UNUSUAL.  ADMINISTRATIVE EXPERIENCE SHOWS THAT
THE COMMISSION'S INABILITY TO UNSCRAMBLE MERGED ASSETS FREQUENTLY
PREVENTS ENTRY OF AN EFFECTIVE ORDER OF DIVESTITURE.  E.G., EKCO
PRODUCTS CO., TRADE REG. REP. PARA 16,879 (1964)(1963-1965 TRANSFER
BINDER), AFF'D, 347 F.2D 745 (C.A. 7TH CIR. 1965); FOREMOST DAIRIES,
INC., 60 F.T.C. 944, ORDER MODIFIED PER STIPULATION (C.A. 5TH CIR.
1965)(DOCKET NO. 18,815). 

FN6  CF. PUBLIC UTILITIES COMM'N V. CAPITAL TRANSIT CO., 94 U.S. APP.
D.C. 140, 214 F.2D 242, 245 (1954), WHERE THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT GAVE AS ONE OF ITS REASONS FOR GRANTING AN
INJUNCTION THE FACT THAT "THE MOVING PARTY IN THE LITIGATION WAS THE
PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF COLUMBIA, A GOVERNMENTAL
AGENCY CLOTHED BY CONGRESS WITH SPECIAL RESPONSIBILITY IN THE MATTERS
INVOLVED." 

FN7  E.G., H.R. 9424 AND S. 3341 AND 3424, 84TH CONG., 2D SESS.
(1956); H.R. 49 AND 1574, 89TH CONG., 1ST SESS. (1965). 

FN8  HEARINGS BEFORE THE ANTITRUST SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 84TH CONG., 2D SESS., SER.  NO. 15, P. 35
(1956); HEARINGS BEFORE THE SUBCOMMITTEE ON ANTITRUST AND MONOPOLY OF
THE SENATE COMMITTEE ON THE JUDICIARY ON S. 198, S. 721, S. 722 AND S.
3479, 85TH CONG., 2D SESS., 42-45 (1958)(TESTIMONY OF CHAIRMAN
GWYNNE).  HEARINGS BEFORE THE ANTITRUST SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 87TH CONG., 1ST SESS., SER.  NO. 5, PP. 85
86 (1961)(TESTIMONY OF CHAIRMAN DIXON). 

FN9  THEY ALSO DIRECTED ATTENTION TO THE DENIAL OF INJUNCTIVE RELIEF
IN FEDERAL TRADE COMM'N V. FARM JOURNAL, INC. (C.A. 3D CIR.
1955)(UNREPORTED).  BOTH MEN FAILED TO MENTION THE CONTRARY DECISION IN
BOARD OF GOVERNORS V. TRANSAMERICA CORP., 184 F.2D 311 (C.A. 9TH CIR.),
CERT. DENIED, 340 U.S. 883 (1950).  IN EKCO PRODUCTS CO., TRADE REG.
REP. PARA 16,879 (1964)(1963-1965 TRANSFER BINDER), AFF'D, 347 F.2D 745
(C.A. 7TH CIR. 1965), COMMISSIONER ELMAN STATED THAT THE QUESTION OF
THE COMMISSION'S ABILITY TO OBTAIN A PRELIMINARY INJUNCTION UNDER THE
ALL WRITS ACT "HAS NOT BEEN AUTHORITATIVELY ANSWERED."  AT 21,905, N.
10.  FN10  HEARINGS BEFORE THE SUBCOMMITTEE ON ANTITRUST AND MONOPOLY
OF THE SENATE COMMITTEE ON THE JUDICIARY ON S. 198, S. 721, S. 722 AND
S. 3479, 85TH CONG., 2D SESS., 156-157 (1958) (TESTIMONY OF CONGRESSMAN
CELLER).  HEARINGS BEFORE THE ANTITRUST SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 87TH CONG., 1ST SESS., SER.  NO. 5, PP. 42
45 (1961)(STATEMENT OF CONGRESSMAN PATMAN). 

FN11  CF. HELVERING V. HALLOCK, 309 U.S. 106, 120 (1940), WHERE IT
WAS SAID THAT TO GIVE WEIGHT TO THE NONACTION OF CONGRESS WAS TO
"VENTURE INTO SPECULATIVE UNREALITIES."    FN12  CF. UNITED STATES V.
PHILADELPHIA NAT. BANK, 374 U.S. 321, 348-349 (1963). 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE STEWART
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THE COURT TODAY DECIDES THAT THE COURTS OF APPEALS MUST ENTERTAIN
ORIGINAL APPLICATIONS BY THE FEDERAL TRADE COMMISSION FOR THE ISSUANCE
OF PRELIMINARY INJUNCTIONS TO RESTRAIN MERGERS ALLEGED TO VIOLATE SEC 7
OF THE CLAYTON ACT, 15 U.S.C. SEC 18 (1964 ED.), PENDING PROCEEDINGS
BEFORE THE COMMISSION TO DETERMINE WHETHER SUCH MERGERS VIOLATE THAT

IN SO DECIDING, THE COURT DETERMINES THAT THE COMMISSION - AN
ADMINISTRATIVE AGENCY WITH DEFINED AND CIRCUMSCRIBED POWERS - IS
AUTHORIZED TO SEEK SUCH RELIEF IN THE COURTS OF APPEALS; AND THAT THE
COURTS OF APPEALS, UNDER THE ALL WRITS ACT, 28 U.S.C. SEC 1651(A) (1964
ED.), HAVE POWER TO ENTERTAIN THE COMMISSION'S PETITION AND TO GRANT
THE INJUNCTIVE RELIEF. 

THIS DECISION CANNOT BE SUPPORTED.  NOT A SINGLE ONE OF THE PRIOR
DECISIONS OF THIS COURT CITED AS AUTHORITY SUSTAINS IT, EITHER
SPECIFICALLY OR INDIRECTLY, OR BY PRINCIPLE OR ANALOGY.  NO STATUTE OF
THE CONGRESS CAN BE APPROPRIATELY SUMMONED TO THE COURT'S AID.  THE
PLAIN, UNMISTAKABLE INTENT OF THE CONGRESS IN DEFINING THE COMMISSION'S
POWERS AND THE JURISDICTION OF THE COURTS OF APPEALS IS THAT NO SUCH
THRESHOLD INJUNCTIVE POWER IS AVAILABLE AT THE COMMISSION'S BEHEST. 
THE ACT PLAINLY AND EXPLICITLY VESTS THE GOVERNMENTAL POWER TO RESTRAIN
AND ENJOIN VIOLATIONS OF THE ACT IN THE DISTRICT COURTS, NOT IN THE
COURT OF APPEALS; AND IT PLAINLY AND EXPLICITLY EMPOWERS THE UNITED
STATES ATTORNEYS "UNDER THE DIRECTION OF THE ATTORNEY GENERAL" - AND
NOT THE FEDERAL TRADE COMMISSION - TO INSTITUTE SUCH PROCEEDINGS.  15
U.S.C. SEC 25 (1964 ED.). 

SINCE 1956, THE FEDERAL TRADE COMMISSION HAS PERSISTENTLY REQUESTED
THE CONGRESS TO ENACT LEGISLATION GIVING THE COMMISSION ITSELF THE
POWER TO ENJOIN, OR ALTERNATIVELY, TO SEEK A DISTRICT COURT ORDER TO
ENJOIN MERGERS PENDING THE OUTCOME OF THE COMMISSION'S PROCEEDINGS. 
CONGRESS HAS JUST AS PERSISTENTLY REFUSED TO DO SO. 

BEGINNING IN 1956, AT LEAST 37 BILLS HAVE BEEN INTRODUCED IN THE
CONGRESS, DIRECTED TO PROVIDING THE COMMISSION WITH A THRESHOLD,
TEMPORARY REMEDY.  NONE HAS BEEN ENACTED, DESPITE THE UNEQUIVOCAL
STATEMENTS OF THE THREE CHAIRMEN OF THE COMMISSION WHO SERVED DURING
THOSE YEARS THAT THE AGENCY PRESENTLY HAS NO POWER TO SEEK RELIEF
ANCILLARY TO ITS ADMINISTRATIVE PROCEEDINGS.  THIS COURT NOW BESTOWS
WHAT THE CONGRESS HAS WITHHELD. 

THE STATEMENTS IN THE COURT'S OPINION INDICATING THAT ITS RESULT IS
NECESSARY UNLESS WE ARE TO "STULTIFY CONGRESSIONAL PURPOSE" FLY IN THE
TEETH OF THE RECORD, PLAINLY WRITTEN AND REPEATEDLY REITERATED. 
CONGRESS IS KEENLY INTERESTED IN ENFORCEMENT OF SEC 7.  BUT IT HAS
DEMONSTRATED OVER AND OVER AGAIN THAT IT HAS NO INTEREST IN ARMING THE
COMMISSION WITH THE POWER TODAY CONFERRED UPON IT.  IT CREATED AND
EQUIPPED THE COMMISSION WITH ADMINISTRATIVE AND QUASI-JUDICIAL POWERS
TO SERVE A FUNCTION QUITE DISTINCT FROM THAT OF A PROSECUTOR OR
LITIGANT.  IT HAS REPEATEDLY DECLINED THE URGENT REQUEST TO REVISE THE
COMMISSION'S ROLE AND FUNCTION.  INDEED, CONGRESS HAS REFUSED TO
EMPOWER THE COMMISSION TO ASK FOR THIS RELIEF IN AN OTHERWISE SUITABLE
FORUM - THE DISTRICT COURTS.  BUT THE COURT TODAY GIVES THIS AGENCY,
WHICH CONGRESS OBVIOUSLY REGARDS AS UNSUITABLE FOR THE PURPOSE, POWER
TO RESORT TO AN UNSUITABLE FORUM - THE COURTS OF APPEALS - FOR THE SAME
PURPOSE. 

THE COMMISSION, THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE CONGRESS
AND ALL COURTS WHICH HAVE PASSED UPON THE POINT HAVE UNTIL TODAY
PROCEEDED ON THE EXPRESSED PREMISE THAT THE FEDERAL TRADE COMMISSION
HAS NO AUTHORITY TO SEEK SUCH RELIEF.  (FN1)  I HAVE NOT FOUND A SINGLE
COMMENTATOR IN THIS MUCH-DISCUSSED FIELD OF LAW WHO HAS SUGGESTED THAT
THE COMMISSION HAS SUCH AUTHORITY, AND NONE IS CITED IN THE COURT'S
OPINION OR IN THE BRIEFS OF THE PARTIES.  (FN2) 

I CAN ONLY ASSUME THAT THE MAJORITY IS MOTIVATED BY A DESIRE TO LEND
ALL ASSISTANCE TO THE FEDERAL TRADE COMMISSION IN ITS ADMINISTRATION OF
SEC 7.  HOWEVER COMMENDABLE THIS MOTIVATION MAY BE IN GENERAL, IT IS
HERE ENTIRELY MISDIRECTED.  INDULGENCE IN THIS GENEROUS SPIRIT
UNJUSTIFIABLY BURDENS THE COURTS OF APPEALS WITH A FACT-FINDING DUTY
WHICH THEY ARE UNABLE TO PERFORM; DISRUPTS THE STATUTORY DIVISION OF
FUNCTIONS BETWEEN THE COMMISSION AND THE DEPARTMENT OF JUSTICE; AND
DEPRIVES PARTIES OF THE OPPORTUNITY FOR FAIR AND CAREFUL CONSIDERATION
OF THEIR PROPOSALS WHICH IS PROMISED BY OUR LAW, BY THE DECISIONS OF
THIS COURT AND THE ECONOMIC NEEDS OF THE NATION. 

THE CLAYTON ACT CONTAINS SPECIFIC AND COMPREHENSIVE ENFORCEMENT
PROVISIONS.  THERE IS NO VACUUM TO BE FILLED BY INGENUITY.  THERE IS NO
ROOM FOR IMPROVISATION.  THE ACT IS FULLY ARMED WITH A TRIPLE ARSENAL. 
ENFORCEMENT POWERS WITH RESPECT TO MERGERS UNDER SEC 7 ARE VESTED IN
THE DEPARTMENT OF JUSTICE, THE FEDERAL TRADE COMMISSION AND PRIVATE
PERSONS WHO CLAIM INJURY AS A RESULT OF THE MERGER.  BOTH THE
DEPARTMENT OF JUSTICE AND PRIVATE LITIGANTS ARE AUTHORIZED TO SEEK
INJUNCTIVE RELIEF IN THE DISTRICT COURTS.  BUT THE ROLE AND FUNCTION OF
THE FEDERAL TRADE COMMISSION IS DIFFERENTLY CONCEIVED. 

THE POWERS OF THE COMMISSION AND THE MANNER OF THEIR EXERCISE AND OF
REVIEW AND ENFORCEMENT OF COMMISSION ORDERS ARE SET OUT IN METICULOUS
DETAIL.  WHENEVER THE COMMISSION "SHALL HAVE REASON TO BELIEVE THAT ANY
PERSON IS VIOLATING OR HAS VIOLATED" SEC 7, IT SHALL ISSUE A
COMPLAINT.  THE COMPLAINT IS TO BE SERVED UPON "SUCH PERSON AND THE
ATTORNEY GENERAL."  THE ATTORNEY GENERAL MAY INTERVENE IN THE
COMMISSION'S PROCEEDING.  HE MAY INSTITUTE ACTIONS IN THE DISTRICT
COURT FOR INJUNCTIVE RELIEF.  THE COMMISSION IS TO HOLD A HEARING;
TESTIMONY IS TO BE TAKEN; THE COMMISSION IS TO "MAKE A REPORT IN
WRITING"; AND IT IS EMPOWERED TO ISSUE AN ORDER TO CEASE AND DESIST AND
TO COMPEL THE RESPONDENT TO "DIVEST ITSELF OF THE STOCK  ...  OR ASSETS
...  HELD  ...  CONTRARY TO THE PROVISIONS OF SEC 7."  15 U.S.C. SEC
21(B) (1964 ED.).  THE RESPONDENT MAY OBTAIN REVIEW OF THE ORDER IN AN
APPROPRIATE COURT OF APPEALS IN THE MANNER AND WITH THE CONSEQUENCES
METICULOUSLY DEFINED IN THE ACT, AS HEREINAFTER DISCUSSED. 

THERE IS NO QUESTION - I SUBMIT THAT THERE CAN BE NO QUESTION - THAT
CONGRESS FROM THE OUTSET INTENDED THAT THE FEDERAL TRADE COMMISSION
SHOULD NOT HAVE OTHER OR DIFFERENT OR SUPPLEMENTARY OR ADDITIONAL POWER
TO ENFORCE SEC 7.  (FN3)  THE COMMISSION WAS CREATED IN THE SAME YEAR
THAT THE CLAYTON ACT WAS ADOPTED.  IT WAS SUPPOSED TO BE AN EXPERT,
ADMINISTRATIVE AGENCY.  IT WAS NOT INTENDED TO BE A LITIGATION ARM OF
THE UNITED STATES EXCEPT AS ITS OWN FINAL ORDERS MIGHT BE INVOLVED. 
(FN4)  IT WAS NOT INTENDED TO HAVE POWER TO SEEK OR DELIVER THE QUICK
RESULT, EVEN IN EMERGENCIES.  THIS POWER, SO FAR AS THE GOVERNMENT IS
CONCERNED, WAS EXPLICITLY, CAREFULLY CONFINED TO THE DISTRICT COURTS ON
APPLICATION OF THE UNITED STATES ATTORNEY "UNDER THE DIRECTION OF THE
ATTORNEY GENERAL." 

THE DEPARTMENT OF JUSTICE TO PROCEED IN THE DISTRICT COURTS OF THE
UNITED STATES TO OBTAIN PRELIMINARY RELIEF AGAINST ALLEGEDLY UNLAWFUL
MERGERS.  SECTION 16 MAKES THE SAME REMEDY AVAILABLE ON APPLICATION OF
PRIVATE LITIGANTS.  15 U.S.C. SEC 26 (1964 ED.).  NOWHERE IS SUCH POWER
GIVEN TO THE COMMISSION,  IT WOULD BE INCREDIBLE TO SUGGEST THAT THIS
OMISSION WAS AN OVERSIGHT - OR EVEN AN ERROR.  IT WAS BY DESIGN - AND I
SUGGEST, BY RATIONAL DESIGN. 

THE COMMISSION WAS NOT INTENDED TO - IT HAS NO POWER TO - IT SHOULD
NOT - MAKE A JUDGMENT ON THE MERITS PRIOR TO NOTICE AND HEARING.  TO
SANCTION ITS DOING SO IS TO STRIKE A DEVASTATING BLOW AT THE
FUNDAMENTAL THEORY UPON WHICH THE EXERCISE OF BOTH PROSECUTORIAL AND
ADJUDICATORY FUNCTIONS BY AN ADMINISTRATIVE AGENCY IS BASED.  CF. SEC
5(C) OF THE ADMINISTRATIVE PROCEDURE ACT OF 1946, 5 U.S.C. SEC 1004(C)
(1964 ED.). 

THE COMMISSION, PRIOR TO TAKING EVIDENCE AND WRITING A REPORT, IS
SUPPOSED TO MAKE ONLY A VERY LIMITED JUDGMENT:  THAT THERE IS "REASON
TO BELIEVE" THE LAW IS BEING VIOLATED.  BUT TO OBTAIN A PRELIMINARY
INJUNCTION, IT MUST - WITHOUT HEARING THE OTHER SIDE, AND ORDINARILY
MERELY ON ITS STAFF'S RECOMMENDATION, NECESSARILY BASED UPON A QUICK
EXPOSURE OF THE FACTS - FILE AFFIDAVITS OR PRODUCE EVIDENCE WITH THE
CALCULATED PURPOSE OF DEMONSTRATING TO THE COURT OF APPEALS THAT
CONSUMMATION OF THE MERGER WILL HAVE SUCH ADVERSE EFFECTS THAT IT MUST
BE HALTED IN LIMINE.  IN FACT, AND IN ALL REALISM, IT MUST TAKE
POSITIONS AND ESTABLISH, WITH SUFFICIENT POSITIVENESS TO OVERCOME
STRENUOUS OPPOSITION, THAT THE MERGER WILL TEND SUBSTANTIALLY TO LESSEN
COMPETITION OR CREATE DANGER OF MONOPOLY, THAT IT IS HARMFUL TO THE
ECONOMY, IMMEDIATELY THREATENING IN ITS CONSEQUENCES, AND THAT IT IS
UNLAWFUL.  THERE MUST BE COMMISSION CONCLUSIONS, NOT MERELY THE VIEWS
OF THE STAFF.  THEIR ASSERTION AND NECESSARILY STOUT ADVOCACY MAKE A
MOCKERY OF A SUBSEQUENT QUASI-JUDICIAL PROCEEDING IN WHICH THE
COMMISSION IS SUPPOSED OBJECTIVELY TO CONSIDER THE SAME ISSUES ON THE
BASIS SOLELY OF THE RECORD. 

THE CLEAR DESIGN OF THE STATUTE IS THAT THE AUTHORITY TO DECIDE, ON
BEHALF OF THE GOVERNMENT, TO SEEK THE POWERFUL REMEDY OF PRELIMINARY
INJUNCTION, AND THE POWER TO DO SO, ARE VESTED IN THE ATTORNEY
GENERAL.  THAT IS HIS BUSINESS - HIS TYPE OF FUNCTION.  IT IS
DELIBERATELY WITHHELD FROM THE COMMISSION.  THAT IS NOT ITS BUSINESS. 
THE COMMISSION IS SUPPOSED TO BE AN EXPERT AGENCY, ACTING DELIBERATELY,
BRINGING TO BEAR UPON THE COMPLEX ECONOMIC PROBLEMS OF A MERGER, THAT
JUDGMENT AND EXPERIENCE WHICH CAN EMERGE ONLY FROM CAREFUL FACTUAL
INQUIRY, THE TAKING OF EVIDENCE AND THE FORMULATION OF A REPORT.  THE
FEDERAL TRADE COMMISSION WAS NOT INTENDED TO BE A GUN,  (FN5) A CARBON
COPY OF THE DEPARTMENT OF JUSTICE.  (FN6) 

IT HAS STEADILY BEEN ACKNOWLEDGED BY SPOKESMEN FOR THE COMMISSION, BY
LEADING MEMBERS OF THE CONGRESS, AND BY OFFICIALS OF THE EXECUTIVE
BRANCH THAT THE FTC HAS NO BASIS IN STATUTE TO SEEK THE RELIEF THE
COURT TODAY MAKES AVAILABLE TO IT.  IN THE APPENDIX TO THIS OPINION, I
REFER TO THESE ACKNOWLEDGMENTS AND I DESCRIBE THE UNSUCCESSFUL, OFT
REPEATED EFFORTS OF THE COMMISSION TO OBTAIN LEGISLATION TO GIVE IT THE
POWER IT HAS NOW SUCCESSFULLY OBTAINED FROM THIS COURT.  (FN7) 

IN SHORT, THE COMMISSION HAS NO POWER TO DECIDE THAT A PROPOSED
MERGER SHOULD BE ENJOINED PENDENTE LITE; IT HAS NO AUTHORITY  TO SEEK
SUCH RELIEF, TEMPORARY OR PERMANENT, IN ANY COURT - TRIAL OR APPELLATE;
AND CONGRESS HAS REPEATEDLY TURNED A DEAF EAR TO ITS REQUESTS FOR SUCH
POWER. 

IT SHOULD NOT BE GIVEN SUCH JURISDICTION BY FIAT OF THIS COURT.  IT
SHOULD DO WHAT CONGRESS INTENDED IT TO DO - UPON DETERMINING THAT IT
HAS "REASONABLE CAUSE TO BELIEVE" THAT SEC 7 IS BEING OR HAS BEEN
VIOLATED, IT SHOULD ISSUE A COMPLAINT, HOLD A HEARING, MAKE A REPORT,
AND ISSUE AN ORDER.  IF EXIGENCIES REQUIRE, IT MAY REFER THE MATTER TO
THE ATTORNEY GENERAL FOR CONSIDERATION AS TO WHETHER THE DEPARTMENT OF
JUSTICE SHOULD SEEK A PRELIMINARY INJUNCTION IN THE APPROPRIATE
DISTRICT COURT.  (FN8)  IF THE MERGER IS CONSUMMATED, THE COMMISSION
SHOULD, IF WARRANTED, EXERCISE THE ENORMOUS POWER THAT THE STATUTE
EXPRESSLY GIVES IT:  TO REQUIRE THE OFFENDER TO "DIVEST ITSELF OF THE
STOCK, OR OTHER SHARE CAPITAL, OR ASSETS, HELD  ...  CONTRARY TO THE
PROVISIONS" OF SEC 7.  IT IS A CLICHE OF DOUBTFUL TRUTH IN THIS
SITUATION THAT AN OMELETTE CANNOT BE UNSCRAMBLED.  THIS COURT, AS WELL
AS THE COMMISSION, HAS ENTERED SUCH ORDERS OF DIVESTITURE AFTER - AND
SOMETIMES LONG AFTER - THE MERGER HAS BEEN CONSUMMATED.  SEE, E.G.,
UNITED STATES V. VON'S GROCERY CO., ANTE, P. 270 (DECREE SIX YEARS
AFTER MERGER); UNITED STATES V. EL PASO GAS CO., 376 U.S. 651 (DECREE
SEVEN YEARS AFTER MERGER).  UNSCRAMBLING MAY BE DIFFICULT; BUT CONGRESS
MAY WELL HAVE BEEN JUSTIFIED IN THE VIEW THAT THE EXTRA EFFORT IS
WARRANTED IN THE INTERESTS OF SECURING WHAT IS HOPED WOULD BE CAREFUL
ADMINISTRATIVE CONSIDERATION OF THE MERITS OF PROPOSED MERGERS.  NOT
EVERY MERGER DESERVES SUDDEN DEATH.  IN MANY SITUATIONS, MERGERS SERVE
NO PURPOSE EXCEPT THE PURSUIT OF BIGNESS.  BUT SOME ARE DISTINCTLY
BENEFICIAL TO THE ACHIEVEMENT OF A COMPETITIVE ECONOMY.  (FN9)  I
RESPECTFULLY SUBMIT THAT THIS COURT SHOULD NOT ENCOURAGE THE MACHINEGUN
APPROACH TO THE VASTLY IMPORTANT AND DIFFICULT MERGER PROBLEM.  IT
SHOULD INDULGE THE CONGRESS IN ITS DESIRE THAT AT LEAST THE FEDERAL
TRADE COMMISSION SHOULD BE REQUIRED TO MOVE WITH CAUTION AND
DELIBERATION.  A "PRELIMINARY" INJUNCTION, IN EFFECT DURING THE YEARS
REQUIRED TO COMPLETE THE COMMISSION'S PROCEEDINGS, OFTEN - PROBABLY
USUALLY - MEANS THAT THE PLANS TO MERGE WILL BE ABANDONED.  (FN10)  WE
SHOULD NOT BEGUILE OURSELVES BY IGNORING THIS POINT.  "PRELIMINARY"
HERE USUALLY MEANS FINAL.  AND I RESPECTFULLY SUGGEST THAT IT IS
PERMISSIBLE FOR CONGRESS TO INSIST THAT THE MERITS OF MERGERS SHOULD BE
CAREFULLY CONSIDERED. 

I COME NOW TO THE SECOND PHASE OF THE COURT'S OPINION.  HAVING
SATISFIED ITSELF THAT THE COMMISSION MAY APPLY TO THE COURTS OF APPEALS
FOR PRELIMINARY INJUNCTIONS, THE COURT TURNS TO THE QUESTION OF THE
JURISDICTION OF THE APPELLATE COURTS TO ENTERTAIN SUCH APPLICATIONS. 
IT FINDS JURISDICTION IN THE COURTS OF APPEALS BY REASON OF THE ALL
WRITS ACT:  "THE SUPREME COURT AND ALL COURTS ESTABLISHED BY ACT OF
CONGRESS MAY ISSUE ALL WRITS NECESSARY OR APPROPRIATE IN AID OF THEIR
RESPECTIVE JURISDICTIONS AND AGREEABLE TO THE USAGES AND PRINCIPLES OF
LAW."  28 U.S.C. SEC 1651(A). 

THIS IS, IN MY OPINION, A TOTALLY UNJUSTIFIED EMPLOYMENT OF THE ALL
WRITS ACT.  THAT ACT IS AN IMPLEMENTING STATUTE, DESIGNED TO AUTHORIZE
THE COURTS TO SUPPLY DEFICIENCES IN PROCEDURE SO AS TO ENABLE THEM
EFFECTIVELY TO EXERCISE THEIR JURISDICTION.  THE ACT IS ABUSED WHERE,
AS HERE, IT IS CONTORTED TO CONFER JURISDICTION WHERE CONGRESS HAS
PLAINLY WITHHELD IT.  THE REASON WHY THIS COURT MAY NOT COMMAND OR
VINDICATE THE EXERCISE OF JURISDICTION BY THE COURTS OF APPEALS TO
ISSUE, AS AN ORIGINAL MATTER, INJUNCTIONS AGAINST CLAIMED VIOLATIONS OF
SEC 7 ARE OVERWHELMING.  IN SUMMARY, THEY ARE:    1.  THE COURTS OF
APPEALS HAVE NO JURISDICTION WITH RESPECT TO SEC 7 EXCEPT TO REVIEW AN
ORDER ENTERED BY THE COMMISSION AFTER STATUTORY PROCEEDINGS.  UNTIL
SUCH AN ORDER IS ENTERED, THEY HAVE NO JURISDICTION, EITHER EXISTING OR
POTENTIAL, WHICH AN INJUNCTIVE ORDER MAY IMPLEMENT.    2.  BY EXPRESS
STATUTORY PROVISION, EVEN AFTER A COMMISSION ORDER HAS BEEN ENTERED,
THE COURTS OF APPEALS HAVE NO JURISDICTION AS TO THE MERITS OF THE
MERGER, ON APPLICATION OF THE COMMISSION.  ONLY A PARTY AFFECTED BY THE
COMMISSION'S ORDER MAY FILE A PETITION TO REVIEW.  IF ONE DOES NOT, THE
COMMISSION'S SOLE REMEDY IS TO SEEK PENALTIES IN THE DISTRICT COURTS
UNDER 15 U.S.C. SEC 21.  (FN11)

3.  THE STATUTE CONTAINS ITS OWN "ALL WRITS" PROVISION WHICH IS
CLEARLY AND SPECIFICALLY LIMITED TO INSTANCES IN WHICH THE COURT OF
APPEALS' JURISDICTION HAS ALREADY ATTACHED UPON PETITION TO REVIEW A
COMMISSION ORDER FILED BY A PERSON WHO IS THE TARGET OF THAT ORDER. 

4.  THERE IS NOT A SINGLE PRECEDENT OF THIS COURT WHICH SUPPORTS THE
COURT'S CONCLUSION.  NONE OF THE CASES OF THIS COURT CITED IN THE
MAJORITY OPINION LENDS IT THE SLIGHTEST SUPPORT. 

5.  EXCLUSIVE JURISDICTION TO ISSUE PRELIMINARY INJUNCTIONS AGAINST
MERGERS IS VESTED IN THE DISTRICT COURTS, UPON APPLICATION OF THE
DEPARTMENT OF JUSTICE OR A PRIVATE PERSON.  THE COURTS OF APPEALS HAVE
NO JURISDICTION TO ENTER SUCH ORDERS. 

6.  THE COURTS OF APPEALS ARE NOT EQUIPPED TO MAKE THE ORIGINAL,
COMPLEX FACTUAL DETERMINATIONS NECESSARY TO DECIDE WHETHER A
PROSPECTIVE MERGER SHOULD BE ENJOINED.  TO BURDEN THEM WITH THIS TASK
IS TO DISTORT THEIR FUNCTION; TO SADDLE THEM WITH A FUNCTION WHICH THEY
CANNOT PERFORM; TO LOAD UPON THEM THE NECESSITY OF TWICE PASSING UPON A
CHALLENGED MERGER; AND TO DEPRIVE THE PARTIES OF AN OPPORTUNITY FOR A
HEARING IN A FORUM EQUIPPED TO MAKE ORIGINAL FACTUAL DETERMINATIONS. 

THE JURISDICTION AND POWERS OF THE COURTS OF APPEALS WITH RESPECT TO
COMMISSION PROCEEDINGS UNDER SEC 7 ARE DEFINED BY THE STATUTE IN
SPECIFIC AND EXHAUSTIVE DETAIL.  A PETITION TO REVIEW MAY BE FILED WITH
AN APPROPRIATE COURT OF APPEALS BY "ANY PERSON REQUIRED BY AN ORDER OF
THE COMMISSION" TO CEASE OR DESIST OR TO DIVEST ITSELF OF STOCK OR
ASSETS.  15 U.S.C.  SEC 21(C).  THE COURT'S JURISDICTION ATTACHES UPON
THE FILING OF THE PETITION, IBID., AND BECOMES EXCLUSIVE UPON FILING OF
THE RECORD WITH IT.  15 U.S.C. SEC 21(D).  THE COMMISSION'S FINDINGS AS
TO THE FACTS ARE CONCLUSIVE IF SUPPORTED BY SUBSTANTIAL EVIDENCE.  15
U.S.C.  SEC 21(C).  IF ADDITIONAL EVIDENCE IS TO BE TAKEN, THE COURT
MUST REMAND TO THE COMMISSION; IT CANNOT ITSELF TAKE EVIDENCE.  IBID.
THE COURT MAY AFFIRM, MODIFY OR SET ASIDE THE COMMISSION'S ORDER.  IT
MAY ENFORCE THE COMMISSION'S ORDER AS AFFIRMED AND MAY "ISSUE SUCH
WRITS AS ARE ANCILLARY TO ITS JURISDICTION OR ARE NECESSARY IN ITS
JUDGMENT TO PREVENT INJURY TO THE PUBLIC OR TO COMPETITORS PENDENTE
LITE."  IBID. 

THE COURT DOES NOT - IT COULD NOT - CONTEND THAT THESE PROVISIONS
LEND THE SLIGHTEST SUPPORT TO ITS CONCLUSION.  THEY CLEARLY,
EMPHATICALLY, AND POINTEDLY CONTRADICT IT.  THE COURTS OF APPEALS HAVE
JURISDICTION WHEN AND IF, AND ONLY IF AND WHEN, A COMMISSION ORDER HAS
BEEN ENTERED AND A PETITION FOR REVIEW IS FILED - NOT BY THE COMMISSION
BUT BY THE AGGRIEVED PERSON.  (FN12)  WHEN A PETITION FOR REVIEW IS
FILED, THE COURT OF APPEALS HAS "PLENARY" JURISDICTION, IMPLEMENTED BY
THE SELF-CONTAINED ALL-WRITS PROVISION; AND WHEN THE RECORD IS FILED,
THAT JURISDICTION IS EXCLUSIVE.  PRIOR TO THE ENTRY OF THE COMMISSION'S
ORDER, THE COURTS OF APPEALS SIMPLY HAVE NO JURISDICTION, EXISTING OR
POTENTIAL.  THE GENERAL ALL WRITS ACT IS LIMITED TO WRITS "IN AID OF
THEIR RESPECTIVE JURISDICTIONS."  IT IS NOT A CHARTER TO BE USED AT THE
BEHEST OF AN ADMINISTRATIVE AGENCY IN ORDER TO SUPPLY IT WITH A WEAPON
WHICH CONGRESS HAS WITHHELD.  THIS IS CLEAR ENOUGH; AND NOTHING IN OUR
PRIOR DECISIONS EXPANDS THE MEANING OF THE ALL WRITS ACT TO COVER THE
PRESENT SITUATION. 

THE COURT CITES A NUMBER OF CASES TO PROVE THAT AN APPEAL NEED NOT
HAVE BEEN PERFECTED TO CALL INTO PLAY THE POWER OF THE APPELLATE COURTS
TO ISSUE PROTECTIVE WRITS.  THIS IS CLEAR AND OBVIOUS AS APPLIED IN
THOSE CASES.  EACH OF THEM INVOLVED ISSUANCE OF A WRIT TO PREVENT
ACTION OR INACTION BY A TRIAL COURT WHICH WOULD OTHERWISE MEAN THAT THE
CASE WOULD NOT BE ADJUDICATED ON ITS MERITS AND THEREFORE COULD NOT BE
REVIEWED ON APPEAL.  THE TYPICAL CASE INVOLVES THE ISSUANCE OF MANDAMUS
TO THE TRIAL COURT TO COMPEL IT TO PROCEED WITH THE ADJUDICATION OF A
PENDING CASE.  IN THIS CATEGORY ARE THE FIRST THREE CASES CITED ON THE
POINT BY THE COURT.  (FN13) 

THE FOURTH CASE CITED BY THE COURT CLEARLY DEMONSTRATES THE CORRECT
PRINCIPLE AND THE ERROR OF THE COURT'S DECISION IN THE PRESENT CASE. 
IN ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21 (1943), THE RESPONDENT
WAS INDICTED FOR PRICE FIXING.  IT FILED A PLEA IN ABATEMENT BASED UPON
AN ALLEGED FAULT IN THE AUTHORIZATION OF THE INDICTMENT.  THE DISTRICT
COURT DISMISSED THE PLEA.  ON APPLICATION FOR A WRIT OF MANDAMUS, THE
COURT OF APPEALS REVERSED, BUT THIS COURT REVERSED THE COURT OF APPEALS
BECAUSE WHATEVER MIGHT HAVE BEEN THE MERITS OF THE DISTRICT COURT'S
DISMISSAL OF THE PLEA IN ABATEMENT, THAT DISMISSAL DID NOT DEFEAT
APPELLATE JURISDICTION.  THE DISTRICT COURT WOULD PROCEED TO ADJUDICATE
THE MERTIS OF THE CASE, AND APPELLATE JURISDICTION WOULD THEREAFTER BE
AVAILABLE.  THE COURT (PER CHIEF JUSTICE STONE) STATED THAT "WHILE A
FUNCTION OF MANDAMUS IN AID OF APPELLATE JURISDICTION IS TO REMOVE
OBSTACLES TO APPEAL, IT MAY NOT APPROPRIATELY BE USED MERELY AS A
SUBSTITUTE FOR THE APPEAL PROCEDURE PRESCRIBED BY THE STATUTE."  ID.,
AT 26.  THE COURT SAID THAT "THE TRADITIONAL USE OF THE WRIT IN AID OF
APPELLATE JURISDICTION  ...  HAS BEEN TO CONFINE AN INFERIOR COURT TO A
LAWFUL EXERCISE OF ITS PRESCRIBED JURISDICTION TO TO COMPEL IT TO
EXERCISE ITS AUTHORITY WHEN IT IS ITS DUTY TO DO SO."  IBID.  SINCE THE
DISTRICT COURT WAS PROCEEDING TO ADJUDICATE THE CASE, AND ANY ERROR IT
MIGHT HAVE COMMITTED WOULD COME TO THE APPELLATE COURTS UPON APPEAL,
THE COURT HELD THAT THE COURT OF APPEALS ERRED IN ISSUING THE WRIT. 

THESE DECISIONS, THEREFORE, ARE FAR FROM SUPPORTING THE COURT'S
DECISION IN THE PRESENT CASE.  THEY ARE TO THE PRECISE CONTRARY.  THEY
DEMONSTRATE THE OBVIOUS MEANING OF THE LANGUAGE OF THE ALL WRITS ACT:
THAT IT IS TO BE EMPLOYED "IN AID OF" APPELLATE JURISDICTION - NOT TO
VEST GENERAL RESTRAINING POWER IN THE COURTS OF APPEALS, BUT TO
AUTHORIZE THEM TO OVERCOME ACTION OR INACTION WHICH WOULD PREVENT THE
CASE FROM PROCEEDING TO JUDGMENT AND THEN TO APPELLATE REVIEW IN THE
ORDINARY COURSE.  NOTHING OF THE SORT - NOTHING RESEMBLING IT - APPEARS
IN THE PRESENT SITUATION.  THE COMMISSION MAY PROCEED WITH ITS
HEARINGS, AS PROVIDED BY STATUTE.  AS PROVIDED BY STATUTE, IT MAY ENTER
AN ORDER REQUIRING RESPONDENTS TO DIVEST THEMSELVES OF THE ACQUIRED
ASSETS.  IT MAY EVEN - ALTHOUGH I EXPRESS NO OPINION ON THE ISSUE -
REQUIRE ACTION BY THE RESPONDENTS, IF THEY HAVE IRRETRIEVABLY DISPOSED
OF SOME OR ALL OF THE ASSETS, TO TAKE ADDITIONAL ACTION TO MAKE
AVAILABLE ASSETS, CUSTOMERS, ETC., FOR PURCHASE BY OTHERS SO AS TO RE
CREATE A COMPETITOR, PERHAPS EVEN IF SUCH ACTION INVOLVES DISPOSITION
OF NONACQUIRED ASSETS.  (FN14)  AND THE APPROPRIATE COURT OF APPEALS
AND THIS COURT WILL HAVE FULL, COMPLETE APPELLATE JURISDICTION WITH
RESPECT TO ITS ORDER. 

THE COURT CITES FOUR OF ITS PRIOR DECISIONS INVOLVING THE
AVAILABILITY OF THE ALL WRITS ACT IN CONNECTION WITH ADMINISTRATIVE
PROCEEDINGS.  THESE PROVIDE NO ASSISTANCE TO IT.  FIRST, IT REFERS TO
ARROW TRANSP.  CO. V. SOUTHERN R. CO., 372 U.S. 658.  THIS CASE IS
PRECISELY CONTRA TO THE COURT'S CONCLUSION HERE.  AFTER A "BRIEF AND
INFORMAL" HEARING WHICH LED TO A TENTATIVE CONCLUSION THAT THE INCREASE
WAS "UNREASONABLE," THE ICC SUSPENDED RESPONDENT'S PROPOSED RATE
INCREASE AND INSTITUTED A FORMAL PROCEEDING TO ADJUDICATE THE
REASONABLENESS OF THE INCREASE.  THE PROCEEDING WAS STILL IN PROGRESS
WHEN THE MAXIMUM TIME PROVIDED BY STATUTE FOR SUSPENSION OF THE
INCREASE EXPIRED.  PETITIONER SUED IN THE DISTRICT COURT, SEEKING AN
INJUNCTION PENDING THE COMMISSION'S DECISION.  THIS COURT SUSTAINED
DENIAL OF THE INJUNCTION.  IT HELD THAT THE COMMISSION'S JURISDICTION
WAS EXCLUSIVE OF ANY POWER IN THE COURTS TO GRANT THE RELIEF, AND THAT
CONGRESS' ACTION IN VESTING POWER IN THE COMMISSION LEFT NO LATITUDE
FOR COURT ACTION EVEN THOUGH IT MIGHT MEAN THAT THE SMALL SHIPPER COULD
NOT CONTINUE IN BUSINESS UNDER THE HIGHER RATE.  MR. JUSTICE BRENNAN,
SPEAKING FOR THE COURT, OBSERVED, IN WORDS THAT ARE APPLICABLE HERE,
THAT IF THE COURTS WERE TO ENTERTAIN PETITIONER'S APPLICATION FOR AN
INJUNCTION AGAINST THE EFFECTIVENESS OF THE RATES PENDING COMMISSION
DECISION, THEY WOULD IN EFFECT BE PREJUDGING THE CASE AND PREJUDICING
ADMINISTRATIVE ACTION.  "SUCH CONSIDERATION," HE SAID, "WOULD CREATE
THE HAZARD OF FORBIDDEN JUDICIAL INTRUSION INTO THE ADMINISTRATIVE
DOMAIN."  ID., AT 670.  CORRESPONDINGLY, I SUGGEST THAT IT IS UNLIKELY
IN THE REAL WORLD THAT IF THE FEDERAL TRADE COMMISSION MADE
REPRESENTATIONS TO A COURT OF APPEALS THAT A MERGER SHOULD BE ENJOINED
PENDING COMMISSION PROCEEDINGS, AND IF THE COURT ISSUED SUCH AN
INJUNCTION, THE COMMISSION'S ULTIMATE DETERMINATION WOULD BE
UNINFLUENCED BY THESE POWERFUL FACTORS.  I RESPECTFULLY SUGGEST THAT
THIS IS NOT A TOLERABLE RESULT.  (FN15) 

I COME NOW TO THE CASE WHICH THE COURT'S OPINION CHARACTERIZES AS
"DISPOSITIVE" OF "THIS ISSUE."  WHITNEY BANK V. NEW ORLEANS BANK, 379
U.S. 411.  (FN16)  IT IS INDEED A SQUARE HOLDING ON AN ISSUE THAT IS
NOT ANYWHERE NEAR THE PROBLEM OF THIS CASE.  WHITNEY HOLDS THAT A COURT
OF APPEALS MAY ENTER SUCH ORDERS AS WILL PROTECT ITS JURISDICTION - ITS
JURISDICTION HAVING FULLY ATTACHED BY A PRIOR APPEAL FROM A FINAL ORDER
OF THE FEDERAL RESERVE BOARD, IN ACCORDANCE WITH STATUTE.  BRIEFLY
STATED, THE FEDERAL RESERVE BOARD HAD ENTERED AN ORDER PERMITTING A NEW
ORLEANS BANK TO OPERATE A SUBSIDIARY IN LOUISIANA THROUGH A HOLDING
COMPANY.  A PETITION TO REVIEW THAT ORDER WAS DULY FILED, PURSUANT TO
STATUTE, IN THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.  WHILE THIS WAS
PENDING, LOUISIANA ENACTED A STATUTE BEARING ON THE PROBLEM. 
MEANWHILE, THE COMPTROLLER OF THE CURRENCY INDICATED THAT HE WOULD
ISSUE A CERTIFICATE TO THE NEW BANK.  COMPETING BANKS FILED IN THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AN ACTION FOR INJUNCTION
AGAINST THE COMPTROLLER.  THE INJUNCTION WAS GRANTED AND THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA AFFIRMED.  IT WAS THE LATTER
ACTION THAT WAS BEFORE THIS COURT, ON CERTIORARI.  THIS COURT HELD THAT
THE DISTRICT COURT HAD NO JURISDICTION TO PASS ON THE MERITS OF THE
CONTROVERSY BY ENJOINING THE COMPTROLLER; THAT EXCLUSIVE JURISDICTION
AS TO THE AUTHORIZATION OF THE NEW BANK WAS VESTED IN THE FEDERAL
RESERVE BOARD.  BUT IT STAYED ITS MANDATE FOR 60 DAYS TO GIVE THE
PARTIES TIME TO MOVE IN THE FIFTH CIRCUIT FOR A REMAND TO THE FEDERAL
RESERVE BOARD FOR RECONSIDERATION OF ITS ORDER IN LIGHT OF THE
SUBSEQUENT LOUISIANA STATUTE.  ON REMAND, THE COURT STATED, "THE FIFTH
CIRCUIT'S POWER TO PROTECT ITS JURISDICTION IS BEYOND QUESTION," ID.,
AT 426 - THIS IN A CASE WHICH HAD BEEN IN THE COURT OF APPEALS FOR
THREE YEARS FOLLOWING FINAL AGENCY ACTION. 

THIS IS ENTIRELY IN ACCORD WITH THE TRADITIONAL AND ESTABLISHED
CONSTRUCTION OF THE ALL WRITS ACT, AND WITH THE STATUTE GOVERNING
PROCEEDINGS OF THE FEDERAL RESERVE BOARD.  JURISDICTION HAD PROPERLY
BEEN ACQUIRED BY THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.  OF
COURSE, IT HAD POWER TO ISSUE WHATEVER ORDERS WERE NECESSARY TO
PRESERVE ITS JURISDICTION, PENDING REMAND OR OTHERWISE.  THE COURT'S
STATEMENT THAT IT IS "ANALOGOUS" TO THE RELIEF REQUESTED BY THE
COMMISSION IS SIMPLY IN ERROR.  IT IS ANALOGOUS ONLY IF WE DISREGARD
THE FACTS THAT IN WHITNEY, A FINAL ORDER HAD BEEN ENTERED BY THE
ADMINISTRATIVE AGENCY, APPEAL TAKEN AND THE JURISDICTION OF THE COURT
OF APPEALS HAD ATTACHED.  WHEREAS IN THE PRESENT CASE NONE OF THESE HAS
OCCURRED AND WE ARE BLUNTLY ASKED TO VEST THE COURTS OF APPEALS WITH
AUTHORITY TO CONSIDER ISSUING AN INJUNCTION AS A MATTER OF ORIGINAL
JURISDICTION - WITHOUT AN AGENCY ORDER, WITHOUT AN APPEAL, AND WITHOUT
STATUTORY JURISDICTION. 

THE NET OF THE MATTER IS SIMPLY, PLAINLY AND CLEARLY THAT THE
DECISION OF THE COURT IN THIS CASE IS NOVEL - TOTALLY NOVEL.  IT IS IN
DIRECT CONTRAVENTION OF THE CAREFUL, SPECIFIC PLAN AND DIRECTIONS OF
THE CONGRESS WITH RESPECT TO THE ADMINISTRATION OF SEC 7 OF THE CLAYTON
ACT.  IT IS IN DIRECT CONFLICT WITH THE PURPOSE AND OFFICE OF THE ALL
WRITS ACT.  IT IS TOTALLY UNSUPPORTED BY PRIOR DECISIONS OF THIS COURT
AND CONTRARY TO BOTH ROCHE, SUPRA, AND ARROW TRANSPORTATION, SUPRA. IT
IS UNWISE IN TERMS OF THE ADMINISTRATION OF SEC 7.  IT PLACES AN
UNWISE, UNJUSTIFIED AND DISRUPTIVE BURDEN ON THE COURTS OF APPEALS AND
SADDLES THEM WITH ORIGINAL JURISDICTION WHICH THEY CANNOT PROPERLY
EXERCISE AND A FACT-FINDING FUNCTION IN ELABORATE, COMPLEX SITUATIONS,
WHICH THEY SHOULD BE BE ASKED TO UNDERTAKE. 

THE COURTS OF APPEALS ARE NOT COURTS OF ORIGINAL JURISDICTION.  THEY
HAVE NEITHER THE FACILITIES NOR THE INSTITUTIONAL APTITUDE FOR
DETERMINING IN THE FIRST INSTANCE WHETHER A PARTICULAR MERGER SHOULD BE
HALTED.  THIS IS ALWAYS INTENSELY A QUESTION OF FACT - HOTLY
CONTROVERTED - TURNING UPON FACTUAL-ECONOMIC PROBLEMS SUCH AS THE
ASCERTAINMENT OF FACTS AS TO THE "LINE OF COMMERCE," THE "SECTION OF
THE COUNTRY" AND THE PROBABLE EFFECT UPON COMPETITION.  AND THESE ARE
QUESTIONS COMMITTED IN THE FIRST INSTANCE TO THE FTC AND NOT TO THE
COURTS.  SEE WHITNEY BANK V. NEW ORLEANS BANK, SUPRA, AT 421. 
WITHOUT ANY FINDINGS OF THE COMMISSION OR A COURT, THE COURTS OF
APPEALS ARE NOW BURDENED WITH THE TASK OF DECIDING THESE QUESTIONS. 
THE FACT OF THE MATTER IS THAT THE COURT'S DECISION COMMANDS THE COURTS
OF APPEALS TO BE TRIAL COURTS FOR PURPOSES OF THOSE SEC 7 CASES WHICH
THE COMMISSION CHOOSES TO BRING BEFORE THEM.  I SHARE THE VIEW
EXPRESSED BY MY BROTHER BLACK AND JOINED BY MY BROTHER DOUGLAS THAT: 

"THE BUSINESS OF TRIAL COURTS IS TO TRY CASES.  THAT OF APPELLATE
COURTS IS TO REVIEW THE RECORDS OF CASES COMING FROM TRIAL COURTS
BELOW.  IN MY JUDGMENT IT IS BAD FOR APPELLATE COURTS TO BE COMPELLED
TO INTERRUPT AND DELAY THEIR PRESSING APPELLATE DUTIES IN ORDER TO HEAR
AND ADJUDICATE CASES WHICH TRIAL COURTS HAVE BEEN SPECIALLY CREATED TO
HANDLE AS A PART OF THEIR DAILY WORK."  UNITED STATES V. BARNETT, 376
U.S. 681, 724 (DISSENTING OPINION). 

YET THE RESPONSIBILITY TODAY IMPOSED UPON APPELLATE COURTS REQUIRES
THEM TO TRY CASES.  THIS IS PRECISELY WHAT IS REQUIRED IN DETERMINING
WHETHER A MERGER SHOULD BE RESTRAINED DURING THE YEARS REQUIRED TO
COMPLETE AN FTC HEARING ON THE MERITS.  (FN17)  FREQUENTLY, PERHAPS
GENERALLY, TO ENJOIN A MERGER "TEMPORARILY" IS EQUIVALENT TO ENTERING A
FINAL ORDER.  THE FINANCIAL AND COMMERCIAL COMMITMENTS INVOLVED IN AN
AGREEMENT TO ACQUIRE OR TO MERGE ARE APT TO BE SO RESTRICTIVE OF THE
MANAGERIAL FLEXIBILITY OF THE PARTIES, AND SO DEPENDENT UPON TRANSIENT
CIRCUMSTANCES, THAT THEY CANNOT BE MAINTAINED IN LIMBO WHILE AN FTC
PROCEEDING WENDS ITS LEISURELY WAY TOWARD A WEARYING CONCLUSION. 
BECAUSE THE RESULT OF THE APPLICATION FOR TEMPORARY RELIEF MAY BE
CONCLUSIVE FOR ALL TIME, THERE IS A DISCERNIBLE AND UNDERSTANDABLE
TENDENCY ON THE PART OF THE PARTIES TO PUT IN A FULL CASE.  (FN18) 

FEW SEC 7 CASES ARE SO SIMPLE THAT SUMMARY TREATMENT IS APPROPRIATE. 
SEE, E.G., UNITED STATES V. BETHLEHEM STEEL CORP., 157 F. SUPP. 877,
879 (SUMMARY JUDGMENT DENIED), 168 F. SUPP. 576 (D.C.S.D.N.Y.
1958)(MERGER ENJOINED AFTER FULL FACTUAL HEARING).  THE RISK INVOLVED
IN DECIDING AN APPLICATION FOR "PRELIMINARY" INJUNCTION ON AFFIDAVITS
IS SO GREAT THAT TO INVITE IT, AS THE COURT HERE DOES, IS TO INVITE THE
ADMINISTRATION OF JUSTICE WHICH IS ROUGH AND READY, TO SAY THE LEAST. 
ON THE OTHER HAND, TO IMPEL THE COURTS OF APPEALS TO TAKE TESTIMONY IN
THESE CASES IS AN ANOMALY THAT SHOULD NOT BE TOLERATED. 

THIS COURT HAS RECOGNIZED THAT THERE IS NO QUICK AND EASY, SHORT AND
SIMPLE WAY TO RESOLVE THE COMPLEXITIES OF MOST ANTITRUST LITIGATION. 
IN WHITE MOTOR CO. V. UNITED STATES, 372 U.S. 253, THE COURT REVERSED
SUMMARY JUDGMENT FOR THE GOVERNMENT.  IT HELD THAT SUMMARY JUDGMENT WAS
INAPPROPRIATE AND A TRIAL SHOULD BE HAD WITH RESPECT TO THE
GOVERNMENT'S CHARGE OF ILLEGAL VERTICAL TERRITORIAL LIMITATIONS.  IT
SPECIFICALLY RELIED UPON THE "ANALOGY FROM THE MERGER FIELD THAT LEADS
US TO CONCLUDE THAT A TRIAL SHOULD BE HAD."  ID., AT 263.  THE COURT
SAID (PER DOUGLAS, J.)  THAT IN CASES "INVOLVING THE QUESTION WHETHER A
PARTICULAR MERGER WILL TEND 'SUBSTANTIALLY TO LESSEN COMPETITION'" OR
WHETHER "THE ACQUIRED COMPANY WAS A FAILING ONE," "A TRIAL RATHER THAN
THE USE OF THE SUMMARY JUDGMENT IS NORMALLY NECESSARY."  ID., AT 264. 
SEE ALSO UNITED STATES V. DIEBOLD, INC., 369 U.S. 654, WHERE FACTUAL
ISSUES PARALLELING THOSE IN THE PRESENT CASE WERE HELD UNSUITABLE FOR
SUMMARY JUDGMENT. 

SIMILARLY, IN LA BUY V. HOWES LEATHER CO., 352 U.S. 249, THIS COURT
REFUSED TO PERMIT REFERENCE OF ANTITRUST CASES TO A MASTER.  IT HELD
(PER CLARK, J.)  THAT "MOST LITIGATION IN THE ANTITRUST FIELD IS
COMPLEX," AND THAT THIS IS "AN IMPELLING REASON FOR TRIAL BEFORE A
REGULAR, EXPERIENCED TRIAL JUDGE" RATHER THAN A MASTER.  ID., AT 259. 

BY ITS DECISION TODAY, HOWEVER, THIS COURT COMMANDS THAT THESE
ADMITTEDLY DIFFICULT, COMPLEX CASES BE HEARD AND ADJUDICATED BY THE
COURTS OF APPEALS ON ORIGINAL APPLICATIONS FOR "TEMPORARY"
INJUNCTIONS.  I CANNOT RECONCILE THIS RESULT WITH THE FACTS, WITH THIS
COURT'S AWARENESS OF THE COMPLEXITY OF THE TASK, OR WITH PROPER REGARD
FOR THE COURTS OF APPEALS.  APART FROM THE JUDICIAL PROBLEM WHICH THIS
INVENTION CREATES, WE MUST RECOGNIZE THAT THE INTERPOSITION OF THE
COURTS, WITHOUT CONGRESSIONAL DIRECTION, AT THE THRESHOLD OF THE
ADMINISTRATIVE PROCESS IS CONTRARY TO THE CONGRESSIONAL PLAN AND THE
REITERATED HOLDINGS OF THIS COURT.  AS THE COURT SAID IN ARROW
TRANSPORATION, SUPRA, JUDICIAL "CONSIDERATION," PRIOR TO FINAL
ADMINISTRATIVE ADJUDICATION, "WOULD CREATE THE HAZARD OF FORBIDDEN
JUDICIAL INTRUSION INTO THE ADMINISTRATIVE DOMAIN."  372 U.S., AT 670. 
THIS COURT'S INSISTENCE UPON THE "PRIMARY JURISDICTION" OF
ADMINISTRATIVE AGENCIES ILLUSTRATES ITS SENSITIVITY TO THE POINT.  THE
COURT HAS EVEN INSISTED THAT "DISMISSAL OF ANTITRUST SUITS, WHERE AN
ADMINISTRATIVE REMEDY HAS SUPERSEDED THE JUDICIAL ONE, IS THE USUAL
COURSE."  PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U.S. 296,
313, N. 19; SEE ALSO UNITED STATES V. WESTERN PAC. R. CO., 352 U.S. 59;
FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570; UNITED STATES NAV.
CO. V. CUNARD S.S. CO., 284 U.S. 474. 

THE PRESENT CASE ILLUSTRATES THE PROFOUND DIFFICULTIES THAT THE COURT
OF APPEALS WILL FACE IN REACHING A DECISION, WITHIN THE PRACTICAL
LIMITS OF ITS AVAILABLE TIME AND PROCEDURES, AS TO WHETHER IT SHOULD
ISSUE A "PRELIMINARY" INJUNCTION.  THERE ARE HERE SHARP FACTUAL
DISPUTES CONCERNING THE FINANCIAL STATUS OF BOWMAN AND THE AVAILABILITY
TO IT OF THE SO-CALLED "FAILING COMPANY" DEFENSE.  THERE IS A CLAIM
THAT DEAN FOODS IS ABOUT TO LOSE ITS LARGEST CUSTOMER AND THAT AS A
RESULT THE MERGED COMPANY WILL BE SMALLER THAN BOWMAN WAS BEFORE THE
MERGER.  AND THE BONA FIDES OF THE "INTERESTED" PROSPECTIVE PURCHASER
UNCOVERED BY THE COMMISSION'S STAFF IS IN DISPUTE. 

THE COURT OF APPEALS WILL HAVE TO MAKE A JUDGMENT CONCERNING THESE
ISSUES, AS WELL AS THE OTHER, COMPLEX FACTORS THAT ARE DETERMINATIVE. 
IT WILL GET LITTLE COMFORT FROM THE LABEL OF THE RELIEF SOUGHT AS
"PRELIMINARY" BECAUSE IT WILL KNOW THAT THE PATIENT MAY DIE WHILE THE
"TEMPORARY" ANESTHESIA IS IN EFFECT.  AND IT WILL KNOW THAT,
REALISTICALLY, IT HAS NO CONTROL OVER THE LENGTH OF THE PROCEEDINGS -
WHETHER THE COMMISSION'S HEARINGS WILL LAST A YEAR OR EIGHT YEARS, OR
SOMETHING IN BETWEEN.  BY CONTRAST, WHEN THE DEPARTMENT OF JUSTICE OR A
PRIVATE PERSON SEEKS A "PRELIMINARY" INJUNCTION IN A DISTRICT COURT, AS
PROVIDED BY STATUTE, THE PROCEEDINGS ON THE MERITS ARE IN THE SAME
COURT.  THAT COURT CONTROLS THE PROCEEDINGS, AND IT IS ADMONISHED BY
THE STATUTE TO PROCEED "AS SOON AS MAY BE, TO THE HEARING AND
DETERMINATION OF THE CASE."  15 U.S.C. SEC 25.  THIS IS AN ESSENTIAL
ADMONITION, INSISTED UPON BY THE CONGRESS TO MITIGATE THE CONSEQUENCES
OF PRELIMINARY RESTRAINTS IMPOSED BY THE DISTRICT COURTS UPON
EFFECTUATION OF MERGERS.  THE COURTS OF APPEALS WILL BE IN THE UNHAPPY
POSITION OF EITHER ATTEMPTING TO SUPERVISE COMMISSION PROCEEDINGS IN
THE PREDICTABLY VAIN EFFORT TO SECURE EXPEDITION, OR ACCEPTING THE FACT
THAT THE "PRELIMINARINESS" OF THEIR ORDER IS TOTALLY SUBJECT TO THE
DESTRUCTIVE DELAYS CHARACTERISTIC OF COMMISSION PROCEDURES.  SEE KAYSEN
& TURNER, ANTITRUST POLICY 248-249 (1959). 

IN EFFECT, TODAY'S DECISION REPRESENTS RADICAL SURGERY UPON THE
ADMINISTRATION OF SEC 7 OF THE CLAYTON ACT.  THIS IS DONE CONTRARY TO
STATUTE, WITHOUT BASIS IN LAW OR PRECEDENT, AND IS MOTIVATED BY
REASONS, WHICH WHILE THEY MAY HAVE SUPERFICIAL APPEAL, ARE UNWISE AND
DISRUPTIVE.  IN EFFECT, THE COURT CONDONES AND ENCOURAGES THE
COMMISSION TO TURN ASIDE FROM ITS DESIGNATED FUNCTION AS AN EXPERT,
ADMINISTRATIVE AGENCY TO BECOME A PROSECUTOR AND LITIGANT. 

WHEN THE COMMISSION WAS ESTABLISHED IN 1914, IT WAS NOT INTENDED TO
DUPLICATE THE FUNCTIONS OF EXISTING AGENCIES, BUT RATHER TO BRING TO
BEAR ON THE PROBLEMS OF ANTITRUST AND UNFAIR COMPETITION THE
"SPECIALIZED KNOWLEDGE AND EXPERT JUDGMENT, CONTINUITY OF EXPERIENCE
AND POLITICAL INDEPENDENCE, FLEXIBLE PROCEDURES AND EFFICIENT FACT
FINDING METHODS - (HOPEFULLY) CHARACTERISTIC OF THE ADMINISTRATIVE
PROCESS."  ELMAN, RULEMAKING PROCEDURES IN THE FTC'S ENFORCEMENT OF THE
MERGER LAW, 78 HARV. L. REV. 385,387 (1964). 

EVERY CONCEIVABLE MERGER CASE INVOLVES THE DANGER THAT THE MERGER,
UNLESS ENJOINED, WILL BE EFFECTUATED, AND THE INCENTIVE TO THE
COMMISSION TO SHOP AMONG THE STATUTORILY AVAILABLE COURTS OF APPEALS
AND TO SEEK "PRELIMINARY" INJUNCTIONS WILL BE GREAT.  THIS, I REPEAT,
IS A RADICAL CHANGE FROM THE PATTERN THAT CONGRESS HAS ORDERED, AND ONE
WHICH IS PROFOUNDLY UNDESIRABLE IN ITS EFFECTS UPON THE PARTIES, THE
COURTS OF APPEALS, AND UPON THE NATIONAL INTEREST IN A CAREFUL
ASSESSMENT OF MERGERS FOR THE PURPOSE OF TOLERATING THOSE WHICH ARE
PERMISSIBLE AND LIQUIDATING THOSE WHICH VIOLATE THE NATIONAL POLICY
EXPRESSED IN SEC 7. 

I WOULD AFFIRM THE DECISION BELOW. 

FN1  SEE FEDERAL TRADE COMM'N V. INTERNATIONAL PAPER CO., 241 F.2D
372 (C.A.2D CIR. 1956); FEDERAL TRADE COMM'N V. FARM JOURNAL, INC.
(C.A. 3D CIR. 1955).  IN IN THE MATTER OF A.G. SPALDING & BROS., INC.
(F.T.C. DOCKET NO. 6478), THE COMMISSION FAILED TO OBTAIN PRELIMINARY
RELIEF IN THE FIRST CIRCUIT, BUT DID GET RESPONDENT'S COMMITMENT NOT TO
ALTER THE STATUS QUO SAVE ON 30 DAYS' NOTICE.  SEE A.G. SPALDING &
BROS., INC. V. F.T.C., 301 F.2D 585 (C.A. 3D CIR. 1962). 

THE SOLE INSTANCE WHERE INJUNCTIVE RELIEF WAS OBTAINED IS BOARD OF
GOVERNORS V. TRANSAMERICA CORP., 184 F.2D 311 (C.A. 9TH CIR. 1950),
CERT. DENIED, 340 U.S. 883.  IN TRANSAMERICA THE THREATENED ACTION
WOULD HAVE DEFEATED THE BOARD'S JURISDICTION ENTIRELY.  THE BOARD
(WHOSE ROLE IN SEC 7 ENFORCEMENT IS LIKE THE FTC'S) ARGUED BOTH IN THE
COURT OF APPEALS AND IN OPPOSITION TO THE PETITION FOR CERTIORARI, THAT
IF TRANSAMERICA WERE NOT RESTRAINED FROM DISPOSING OF STOCK HOLDINGS
THE LEGALITY OF WHOSE ACQUISITION WAS IN ISSUE IN THE ADMINISTRATIVE
PROCEEDINGS, THE EFFECT UNDER THE PRE-1950 VERSION OF SEC 7, AS
CONSTRUED BY THIS COURT IN ARROW-HART & HEGEMAN ELECTRIC CO. V. F.T.C.,
291 U.S. 587, WOULD BE TO "OUST THE BOARD OF ITS JURISDICTION UNDER
JURISDICTION OF THE COURT OF APPEALS TO ENFORCE OR AFFIRM SUCH ORDER AS
THE BOARD MIGHT MAKE  ...  ."  GOVERNMENT'S BRIEF IN OPPOSITION IN
TRANSAMERICA CORP.  V. BOARD OF GOVERNORS (NOS. 322 AND 323, OCTOBER
TERM, 1950), AT PP. 5, 8-9, 15.  SEE ALSO UNITED STATES V. PHILADELPHIA
NAT. BANK, 374 U.S. 321, 339, N. 17, WHERE TRANSAMERICA APPEARS TO HAVE
BEEN DISTINGUISHED FROM INTERNATIONAL PAPER, SUPRA, PRECISELY ON THE
GROUND THAT THE WRIT THERE WAS NECESSARY TO PROTECT THE "JURISDICTION"
BOTH OF THE AGENCY AND OF THE COURT OF APPEALS - A CONVENTIONAL USE OF
THE ALL WRITS ACT. 

FN2  ON THE CONTRARY, THE COMMON VIEW IS THAT SUCH AUTHORITY IS
ENTIRELY LACKING.  SEE, E.G., KAYSEN & TURNER, ANTITRUST POLICY 258
(1959); DUKE, SCOPE OF RELIEF UNDER SECTION 7 OF THE CLAYTON ACT, 63
COL. L. REV. 1192, 1206, N. 85 (1963); NOTE, 79 HARV. L. REV. 391, 404
(1965); NOTE, 40 N.Y.U.L. REV. 771 (1965); COMMENT, 32 N.Y.U.L. REV.
1297 (1957). 

FN3  THE COURT'S OPINION ASSERTS, IN ALLEGED DEMONSTRATION OF THE
"ANCILLARY POWERS" WHICH HAVE BEEN INFERRED ON THE COMMISSION'S BEHALF,
THAT IT MAY BRING "CONTEMPT ACTIONS IN THE APPROPRIATE COURT OF APPEALS
WHEN THE COURT'S ENFORCEMENT ORDERS WERE VIOLATED, THOUGH IT HAS NO
STATUTORY AUTHORITY IN THIS RESPECT."  THE COURT ERRS.  THE
COMMISSION'S POWERS IN THIS RESPECT ARE NOT "IMPLIED."  THE MACHINERY
BY WHICH THE COMMISSION PROCURES COMPLIANCE WITH ITS ORDERS IS, AND
ALWAYS HAS BEEN, SPELLED OUT BY STATUTE.  UNTIL 1959, ONE COULD WITH
IMPUNITY VIOLATE AN FTC CLAYTON ACT ORDER.  SUCH AN ORDER WAS NOT FINAL
UNTIL THE RESPONDENT SOUGHT JUDICIAL REVIEW AND A COURT OF APPEALS
GRANTED ENFORCEMENT.  DISOBEDIENCE THEREAFTER WAS A CONTEMPT OF COURT. 
IN THE EVENT THE RESPONDENT DID NOT SEEK REVIEW, THE COMMISSION WAS
REQUIRED TO ASCERTAIN THAT HE WAS VIOLATING ITS ORDER AND THEN PROCEED,
PURSUANT TO EXPRESS STATUTORY PROVISION (15 U.S.C. SEC 21), TO SEEK
ENFORCEMENT IN THE COURTS OF APPEALS.  SEE 28 U.S.C. SEC 2112 (1964
ED.), AUTHORIZING THE COURTS OF APPEALS TO PROMULGATE RULES FOR
ENFORCEMENT PROCEEDINGS; AND SEE, E.G., 1ST CIR. R. 16.  CF. FED. RULE
CIV. PROC. 70.  A VIOLATION THEREAFTER CONSTITUTED CONTEMPT OF COURT. 
THE COURTS DECLINED TO INFER ANY MORE CONVENIENT SUBSTITUTE FOR THIS
THREE-STEP PROCESS.  SEE FEDERAL TRADE COMM'N V. HENRY BROCH & CO., 368
U.S. 360, 365; FEDERAL TRADE COMM'N. V. RUBEROID CO., 343 U.S. 470, 477
479. 

THE STATUTE WAS AMENDED IN 1959.  AN FTC ORDER UNDER THE CLAYTON ACT
IS NOW FINAL UPON EXPIRATION OF THE TIME ALLOWED RESPONDENT TO SEEK
JUDICIAL REVIEW.  IF HE DOES NOT APPEAL THE ORDER AND VIOLATES ITS
TERMS AFTER IT BECOMES FINAL, THE GOVERNMENT MAY PROCEED, PURSUANT TO
STATUTE (15 U.S.C. SECS 21(G) AND (L)), TO SEEK CIVIL PENALTIES OF UP
TO $5,000 PER VIOLATION. 

IN SHORT, AND CONTRARY TO THE SUGGESTION IN THE COURT'S OPINION, THE
COMMISSION'S POWER TO ENFORCE COMPLIANCE WITH ITS ORDERS IS AND HAS
BEEN WHOLLY STATUTORY.  NOTHING HAS BEEN LEFT TO IMPLICATION. 

FN4  SEE 51 CONG. REC. 1963, 13047, 8977 (1914); RUBLEE, THE ORIGINAL
PLAN AND EARLY HISTORY OF THE FEDERAL TRADE COMMISSION, 11 ACAD.  POL. 
SCI. PROC. 666 (1925). 

FN5  WHERE CONGRESS HAS DETERMINED THAT IT IS APPROPRIATE FOR THE
COMMISSION TO SEEK THRESHOLD RELIEF IN ORDER TO PROTECT THE PUBLIC, IT
HAS EXPRESSLY SO PROVIDED - DIRECTING THAT THE COMMISSION PROCEED IN AN
APPROPRIATE TRIBUNAL, THE UNITED STATES DISTRICT COURTS.  SEE SEC 13(A)
OF THE FEDERAL TRADE COMMISSION ACT (WHEELER-LEA AMENDMENTS), 15 U.S.C.
SEC 53(A) (1964 ED.); SEC 302 OF THE FOOD, DRUG, AND COSMETIC ACT, 21
U.S.C. SEC 332 (1964 ED.); SEC 7(B) OF THE WOOL PRODUCTS LABELING ACT,
15 U.S.C. SEC 68EB) (1964 ED.); SEC 9(B) OF THE FUR PRODUCTS LABELING
ACT, 15 U.S.C. SEC 69GB) (1964 ED.); SEC 6(A) OF THE FLAMMABLE FABRICS
ACT, 15 U.S.C. SEC 1195(A) (1964 ED.); AND SEC 8 OF THE TEXTILE FIBER
PRODUCTS IDENTIFICATION ACT, 15 U.S.C. SEC 70F (1964 ED.).    FN6  SEE
ELMAN, RULEMAKING PROCEDURES IN THE FTC'S ENFORCEMENT OF THE MERGER
LAW, 78 HARV.  L. REV. 385, 387-388 (1964). 

FN7  THE COURT DECLARES THAT THESE MATERIALS ARE IRRELEVANT BECAUSE
CONGRESS HAD BEFORE IT PROPOSALS TO AUTHORIZE THE COMMISSION ITSELF TO
ISSUE RESTRAINING ORDERS PENDENTE LITE OR TO APPLY TO THE DISTRICT
COURTS FOR SUCH RELIEF.  BUT THE FACT THAT NO ONE PROPOSED AND CONGRESS
DID NOT CONSIDER PROVIDING THAT THE COMMISSION MIGHT HAVE RECORUSE TO
THE COURTS OF APPEALS MERELY EMPHASIZES THE EXTREME AND EXTRAORDINARY
NATURE OF THE DEVICE WHICH THE COURT TODAY CREATES.  THE PLAIN FACT,
AND THE SHORT ANSWER, IS THAT CONGRESS REFUSED TO AUTHORIZE PRELIMINARY
RESTRAINTS AT THE COMMAND OF THE COMMISSION.  ITS REFUSAL TO AUTHORIZE
SUCH RELIEF IN THE DISTRICT COURTS DEMONSTRATES, A FORTIORI, THAT IT
WOULD NOT CREATE SUCH A REMEDY IN THE COURTS OF APPEALS. 

THE COURT ALSO SUGGESTS THAT IT WOULD BE IMPROPER TO DRAW CONCLUSIONS
FROM CONGRESSIONAL INACTION.   THE INFERENCE THAT I DRAW FROM
CONGRESSIONAL REFUSAL TO MAKE PRELIMINARY INJUNCTIVE RELIEF AVAILABLE
TO THE FTC IS THAT SUCH INACTION CONFIRMS (A) THAT CONGRESS IN DEVISING
THE STATUTORY PLAN DID NOT INTEND THE COMMISSION TO HAVE SUCH POWER,
AND (B) THAT THE RELIEF SOUGHT IS NOT CONSONANT WITH THE CONGRESSIONAL
PLAN FOR ADMINISTERING SEC 7.  IN FACT, THIS IS NOT A SITUATION WHERE
THE AGENCY WENT TO CONGRESS IN THE BELIEF THAT ITS AUTHORITY WAS
UNCLEAR, OR TO REMOVE DOUBTS CONCERNING IT.  COMPARE UNITED STATES V.
SPEERS, 382 U.S. 266, 274-275; UNITED STATES V. DU PONT & CO., 353 U.S.
586, 590; WONG YANG SUNG V. MCGRATH, 339 U.S. 33, 47-48.  HERE, THERE
IS NO DOUBT THAT THE AGENCY SOUGHT ADDITIONAL POWERS, NOT
CLARIFICATION.  IT ADMITTED - IT ASSERTED - THAT IT HAD NO PRESENT
AUTHORITY TO OBTAIN PRELIMINARY RELIEF (SEE APPENDIX TO THIS OPINION). 
IT SOUGHT WHAT IT CONFESSEDLY DID NOT HAVE.  IT SOUGHT THIS NOT ONCE,
BUT REPEATEDLY, OVER A PERIOD OF 10 YEARS.  CONGRESS DID NOT GRANT ITS
REQUEST.  NOR SHOULD WE.  SEE FRIBOURG NAVIG.  CO. V. COMMISSIONER, 383
U.S. 272, 279-286; BLAU V. LEHMAN, 368 U.S. 403, 412-413. 

FN8  SPOKESMEN FOR THE FTC HAVE FREQUENTLY ACKNOWLEDGED THE
AVAILABILITY OF SUCH A COURSE.  SEE, E.G., HEARINGS BEFORE THE
ANTITRUST SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY, 87TH
CONG., 1ST SESS., SER.  NO. 5, PP. 101-102 (TESTIMONY OF PAUL RAND
DIXON)(1961); KINTNER, THE FEDERAL TRADE COMMISSION IN 1960 - APOLOGIA
PRO VITA NOSTRA, 1961 ANTITRUST LAW SYMPOSIUM 21, 41. 

THE COMMISSION ALSO HAS ON OCCASION SUCCESSFULLY EMPLOYED THE
TECHNIQUE OF OBTAINING AN AGREEMENT OF THE PARTIES TO SEGREGATE ASSETS
SO AS TO FACILITATE DIVESTITURE SHOULD IT BE DECREED.  SEE, E.G., A.G.
SPALDING & BROS., INC. V. F.T.C., 301 F.2D 585, 588 (C.A. 3D CIR.
1962). 

FN9  FOR EXAMPLE, IN SOME SITUATIONS THE MERGER OF RELATIVELY SMALL
COMPETITORS MAY RESULT IN CREATION OF AN ENTERPRISE CAPABLE OF
MEANINGFUL COMPETITION WITH A COMPANY OTHERWISE IN UNCHALLENGED
DOMINATION OF AN INDUSTRY.  SEE BROWN SHOE CO. V. UNITED STATES, 370
U.S. 294, 319, AND LEGISLATIVE MATERIALS THEREIN CITED. 

FN10  SEE KAYSEN & TURNER, ANTITRUST POLICY 248 (1959); NOTE, 40
N.Y.U.L. REV. 771, 772, N. 7 (1965), AND CASES CITED THEREIN. 

FN11  SEE NOTE 3, SUPRA. 

FN12  INDEED, THERE IS NO CERTAINTY THAT THE PARTICULAR COURT OF
APPEALS SELECTED BY THE FTC ON ITS APPLICATION FOR PRELIMINARY RELIEF
WILL EVER UNDERTAKE TO REVIEW AN ULTIMATE CEASE-AND-DESIST ORDER. 
PERSON AGAINST WHOM SUCH AN ORDER IS ENTERED MAY APPEAL "IN THE COURT
OF APPEALS  ...  FOR ANY CIRCUIT WITHIN WHICH SUCH VIOLATION OCCURRED
OR WITHIN WHICH SUCH PERSON RESIDES OR CARRIES ON BUSINESS."  IN THE
PRESENT CASE, REVIEW OF ANY FINAL FTC ORDER MIGHT LIE NOT IN THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT, BUT IN THE SIXTH OR EIGHTH CIRCUIT
WHERE BOTH DEAN AND BOWMAN CARRY ON BUSINESS.  SEE TRANSAMERICA CORP.
V. BOARD OF GOVERNORS, 206 F.2D 163 (C.A. 3D CIR. 1953), CERT. DENIED,
346 U.S. 901, SETTING ASIDE AN INJUNCTION ISSUED BY THE NINTH CIRCUIT;
A.G. SPALDING & BROS., INC. V. F.T.C., 301 F.2D 585 (C.A. 3D CIR.
1962), ENFORCING AN FTC ORDER AS TO WHICH AN INJUNCTION UNSUCCESSFULLY
HAD BEEN SOUGHT IN THE FIRST CIRCUIT SEVEN YEARS EARLIER. 

FN13  EX PARTE CRANE, 5 PET. 190, 193; EX PARTE BRADSTREET, 7 PET.
634; MCCLELLAN V. CARLAND, 217 U.S. 268.  FROM ITS EXCERPT FROM
MCCLELLAN, THE COURT OMITS THE ITALICIZED PORTION:  "A WRIT OF MANDAMUS
MAY ISSUE IN AID OF THE APPELLATE JURISDICTION WHICH MIGHT OTHERWISE BE
DEFEATED BY THE UNAUTHORIZED ACTION OF THE COURT BELOW."  217 U.S., AT
280. 

FN14  COMPARE UNITED STATES V. ALUMINUM CO. OF AMERICA, 247 F. SUPP.
308, 316 (D.C.E.D. MO. 1965), AFF'D, 382 U.S. 12, WITH REYNOLDS METALS
CO. V. F.T.C., 114 U.S. APP.  D.C. 2, 309 F.2D 223 (1962).  SEE DUKE,
OP. CIT. SUPRA, NOTE 2. 

FN15  THE COURT'S OPINION TODAY ESCHEWS THE RESULT IN ARROW
TRANSPORTATION AND FASTENS INSTEAD ON FOOTNOTE 22, 372 U.S., AT 671,
WHICH MERELY RESERVES JUDGMENT AS TO "DECISIONS WHICH HAVE RECOGNIZED A
LIMITED JUDICIAL POWER TO PRESERVE THE COURT'S JURISDICTION OR MAINTAIN
THE STATUS QUO BY INJUNCTION PENDING REVIEW OF AN AGENCY'S ACTION
THROUGH THE PRESCRIBED STATUTORY CHANNELS  ...  ."  THE FOOTNOTE ADDS
THAT "SUCH POWER HAS BEEN DEEMED MERELY INCIDENTAL TO THE COURTS'
JURISDICTION TO REVIEW FINAL AGENCY ACTION, AND HAS NEVER BEEN
RECOGNIZED IN DEROGATION OF SUCH A CLEAR CONGRESSIONAL PURPOSE TO OUST
JUDICIAL POWER AS THAT MANIFESTED IN THE INTERSTATE COMMERCE ACT."  THE
CASES CITED DEMONSTRATE THE CONVENTIONAL USE OF THE EXTRAORDINARY WRITS
REFERRED TO IN THE FOOTNOTE.  IN SCRIPPS-HOWARD RADIO, INC. V. F.C.C.,
316 U.S. 4, A STAY WAS ISSUED ANCILLARY TO AN APPEAL ALREADY TAKEN
PURSUANT TO STATUTE.  ITS PURPOSE WAS TO SUSPEND, PENDING ACTION BY THE
COURT IN WHICH THE APPEAL WAS LODGED, CHANGES AUTHORIZED BY COMPLETED
AGENCY ACTION.  FOR THE THOROUGHLY CONVENTIONAL NATURE OF TRANSAMERICA,
ALSO CITED IN THE FOOTNOTE, SEE NOTE 1, SUPRA. 

FN16  CONTINENTAL ILL. NAT. BANK V. CHICAGO R.I.&P.R. CO., 294 U.S.
648, 675, CITED BY THE COURT IN CONNECTION WITH ITS ASSERTION THAT
COURTS HAVE POWER TO PRESERVE THE STATUS QUO WHILE ADMINISTRATIVE
PROCEEDINGS ARE IN PROGRESS, RELATES INSTEAD TO THE POWER OF A
BANKRUPTCY COURT TO ENJOIN THE SALE OF COLLATERAL PLEDGED BY A DEBTOR. 

FN17  THE COMMISSION'S ESTIMATE IN THE PRESENT CASE THAT ITS
PROCEEDINGS WOULD ENDURE FOR AT LEAST ONE YEAR SEEMS UNPRECEDENTEDLY
OPTIMISTIC.  IN A.G. SPALDING & BROS., INC. V. F.T.C., 301 F.2D 585
(C.A. 3D CIR. 1962), WHERE THE FTC UNSUCCESSFULLY SOUGHT AN INJUNCTION
PENDENTE LITE, MORE THAN SEVEN YEARS ELAPSED BETWEEN COMPLAINT AND
ENFORCEMENT.  PILLSBURY MILLS, INC. (FTC DOCKET NO. 6000) WAS IN THE
COMMISSION FOR EIGHT AND ONE-HALF YEARS; CROWN ZELLERBACH CORP. V.
F.T.C., 296 F.2D 800 (C.A. 9TH CIR. 1961), FOR NEARLY FOUR YEARS, AND
IT WAS ANOTHER FOUR YEARS BEFORE THE COMMISSION'S ORDER WAS AFFIRMED. 
THESE DELAYS WERE NOT UNKNOWN TO CONGRESS.  SEE HEARINGS BEFORE THE
ANTITRUST SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY, 87TH
CONG., 1ST SESS., SER.  NO. 5, P. 86 (1961). 

FN18  SEE UNITED STATES V. INGERSOLL-RAND CO., 218 F. SUPP. 530
(D.C.W.D. PA.), AFF'D, 320 F.2D 509 (C.A. 3D CIR. 1963), WHERE THE
HEARING ON AN APPLICATION FOR PRELIMINARY RELIEF TOOK FIVE DAYS.  SEE
ALSO UNITED STATES V. FMC CORP., 218 F. SUPP. 817 (D.C.N.D.  CAL.),
APPEAL DISMISSED, 321 F.2D 534 (C.A. 9TH CIR.), APPLICATION FOR
PRELIMINARY INJUNCTION DENIED, 84 SUP. CT. 4 (1963)(GOLDBERG, J., IN
CHAMBERS). 

             APPENDIX TO OPINION OF MR. JUSTICE

                      FORTAS, DISSENTING. 

THE FTC FIRST SOLICITED THE ASSISTANCE OF CONGRESS IN 1956.  IN
JANUARY OF THAT YEAR IT SUBMITTED TO THE APPROPRIATE COMMITTEES OF THE
EIGHTY-FOURTH CONGRESS A STAFF STUDY CONTAINING VARIOUS LEGISLATIVE
PROPOSALS.  THE STUDY OBSERVED THAT "A VERY SERIOUS LOOPHOLE IN THE
ANTIMERGER ACT (SEC 7) IS THE LACK OF A PROVISION WHICH ENABLES THE
FEDERAL TRADE COMMISSION EITHER TO TAKE ACTION TO PREVENT MERGERS PRIOR
TO CONSUMMATION OR, AFTER CONSUMMATION, TO TAKE ACTION TO PRESERVE THE
STATUS QUO UNTIL COMPLETION OF ADMINISTRATIVE PROCEEDINGS BEFORE THE
COMMISSION."  (FN1) 

THE STUDY INFORMED THE COMMITTEES THAT IN 1955 THE FTC HAD TWICE
SOUGHT TO SECURE PRELIMINARY INJUNCTIONS FROM COURTS OF APPEALS, BUT
THAT THE COURTS HAD FOUND NO BASIS IN EXISTING LAW TO AUTHORIZE SUCH
APPLICATIONS.  (FN2)  IN HEARINGS CONDUCTED UPON PROPOSALS OF THE FTC
AND OTHERS, THE COMMISSION THROUGH ITS THEN CHAIRMAN, JOHN W. GWYNNE,
URGED CONGRESS TO ENACT LEGISLATION WHICH WOULD EMPOWER IT IN SEC 7
CASES TO APPLY TO UNITED STATES DISTRICT COURTS FOR PRELIMINARY
RELIEF.  (FN3)  CHAIRMAN GWYNNE WAS PESSIMISTIC ABOUT THE PROSPECTS FOR
SUCCESS UNDER THE ALL-WRITS STATUTE, NOTING THAT IT "IS A VERY GENERAL
STATUTE AND IS DESIGNED TO PROTECT NOT THE JURISDICTION OF THE FEDERAL
TRADE COMMISSION BUT THE JURISDICTION OF THE CIRCUIT COURT OF APPEALS
TO WHICH THE CASE MIGHT FINALLY GET."  (FN4) 

BOTH SENATE AND HOUSE JUDICIARY COMMITTEES ACCEPTED THE VIEW,
REPEATEDLY STATED BY SPOKESMEN FOR THE FTC, THAT IT LACKED ANY
AUTHORITY TO ENJOIN OR SEEK A COURT ORDER TO ENJOIN MERGERS PRIOR TO AN
FTC ADJUDICATION OF THEIR ILLEGALITY, AND THAT THIS GAP IN THE
COMMISSION'S ARSENAL WAS CRIPPLING ITS EFFORTS TO ENFORCE SEC 7.  BOTH
COMMITTEES REPORTED OUT H.R. 9424, WHICH CONTAINED AN AMENDMENT TO SEC
15 OF THE CLAYTON ACT AUTHORIZING THE FTC TO SEEK PRELIMINARY RELIEF IN
THE UNITED STATES DISTRICT COURTS.  S. REP. NO. 2817, 84TH CONG., 2D
SESS. (1956); H.R. REP. NO. 1889, 84TH CONG., 2D SESS.  (1956).  (FN5)
THE BILL PASSED THE HOUSE, BUT FAILED OF PASSAGE IN THE SENATE. 

SIMILAR LEGISLATIVE PROPOSALS HAVE BEEN INTRODUCED IN SUBSEQUENT
SESSIONS, BUT ALWAYS WITH LESS SUCCESS THAN IN 1956.  IN ALL OF THESE
LEGISLATIVE PROCEEDINGS, THE POSITION OF THE FTC HAS BEEN STEADFAST:
CONSISTENTLY, IT HAS INSISTED THAT WITHOUT NEW LEGISLATION IT LACKS
AUTHORITY TO ENJOIN MERGERS PENDING COMPLETION OF AGENCY ACTION.  IN
MARCH OF 1957, FTC CHAIRMAN GWYNNE INFORMED THE APPROPRIATE COMMITTEES
OF THE DECISION IN FEDERAL TRADE COMM'N V. INTERNATIONAL PAPER CO., 241
F.2D 372 (C.A.2D CIR. 1956), THAT THE ALL-WRITS STATUTE WOULD NOT
SUPPORT AN FTC APPLICATION FOR PRELIMINARY RELIEF.  TO THE HOUSE
COMMITTEE HE FORWARDED A COPY OF THE OPINION, DESCRIBING IT AS "EVEN
MORE CONCLUSIVE" THAN THE EARLIER UNREPORTED DECISIONS OF THE COURTS OF
APPEALS FOR THE FIRST AND THIRD CIRCUITS.  (FN6)  IN THE SENATE,
CHAIRMAN GWYNNE CHARACTERIZED HIS COMMISSION'S APPLICATION IN
INTERNATIONAL PAPER AS "SOMETHING OF A FORLORN HOPE."  (FN7)  WHEN
SENATOR KEFAUVER, THE COMMITTEE CHAIRMAN, ASKED HIM WHETHER THE FTC HAD
SOUGHT REVIEW OF THE DECISION IN THIS COURT, CHAIRMAN GWYNNE ANSWERED:
"NO, WE DID NOT.  WE TALKED THAT OVER.  I COULD NOT HELP BUT AGREE WITH
THE COURT, FRANKLY, I THINK THE REMEDY IS TO AMEND THE LAW  ...  ." 
THE SENATOR REPLIED, "I THINK YOU ARE RIGHT ABOUT IT."  (FN8) 

NOR WAS GWYNNE THE ONLY FTC SPOKESMAN TO REPRESENT TO CONGRESS THAT
LEGISLATION WAS ESSENTIAL IF THE COMMISSION, LIKE THE DEPARTMENT OF
JUSTICE AND PRIVATE PARTIES, WAS TO BE ABLE TO MAINTAIN THE STATUS QUO
PENDING DETERMINATION OF A MERGER'S LEGALITY.  THE PRESENT CHAIRMAN,
PAUL RAND DIXON, WHO AS COMMITTEE COUNSEL HAD PARTICIPATED IN SENATE
PROCEEDINGS ON THIS MATTER SINCE 1956, INFORMED THE EIGHTY-SEVENTH
CONGRESS THAT "IT IS CLEAR THAT THE COMMISSION HAS NO SUCH AUTHORITY,"
CITING INTERNATIONAL PAPER.  (FN9)  LEADING MEMBERS OF CONGRESS  (FN10)
AND KEY REPRESENTATIVES OF THE EXECUTIVE BRANCH  (FN11) EXPRESSED THE
SAME VIEW. 

A THIRD FTC CHAIRMAN, EARL KINTNER, EXPLAINED TO THE BAR RATHER THAN
DIRECTLY TO CONGRESS, THAT IN 1960 THE FTC HAD INTERVENED AS AMICUS
CURIAE IN A PRIVATE SUIT TO ENJOIN A MERGER,  (FN12) WHICH SUIT
PARALLELED A PENDING COMMISSION INQUIRY.  THIS WAS DONE, HE SAID,
BECAUSE THE FTC WAS "LACKING ANY STATUTORY AUTHORITY TO SEEK A
TEMPORARY INJUNCTION."  KINTNER, THE FEDERAL TRADE COMMISSION IN 1960 -
APOLOGIA PRO VITA NOSTRA, 1961 ANTITRUST LAW SYMPOSIUM 21, 38.  HE
NOTED THAT THE FTC WAS PRESSING FOR LEGISLATIVE AUTHORIZATION, AND THAT
UNTIL THE EFFORT SUCCEEDED THE FTC WOULD BE CONFINED TO INTERVENTION IN
OCCASIONAL PRIVATE SUITS AND TO RELIANCE UPON THE JUSTICE DEPARTMENT
"WHERE A TEMPORARY RESTRAINING ORDER IS PECULIARLY APPROPRIATE."  ID.,
AT 41.  (FN13) 

FN1  HEARINGS BEFORE THE ANTITRUST SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 84TH CONG., 2D SESS., SER.  NO. 15, P. 29
(1956). 

FN2 THE CASES REFERRED TO WERE FEDERAL TRADE COMM'N V. FARM JOURNAL,
INC. (C.A. 3D CIR. 1955)(UNREPORTED); AND IN THE MATTER OF A.G.
SPALDING & BROS., INC. (C.A. 1ST CIR. 1955) (UNREPORTED).  THEY ARE
DISCUSSED IN H.R. REP. NO. 486, 85TH CONG., 1ST SESS., 8-9 (1957);
HEARINGS BEFORE THE SUBCOMMITTEE ON ANTITRUST AND MONOPOLY OF THE
SENATE COMMITTEE ON THE JUDICIARY ON S. 198, S. 721, S. 722 AND S.
3479, 85TH CONG., 2D SESS., 42-45 (TESTIMONY OF FTC CHAIRMAN GWYNNE),
156-157 (TESTIMONY OF CONGRESSMAN CELLER)(1958). 

FN3  THE FTC PROPOSED THAT SEC 11 OF THE CLAYTON ACT BE AMENDED TO
READ:  "WHENEVER THE FEDERAL TRADE COMMISSION HAS REASON TO BELIEVE: 
"(1)  THAT ANY CORPORATION IS ACQUIRING, HAS ACQUIRED OR IS ABOUT TO
ACQUIRE THE STOCK OR ASSETS OF ANOTHER CORPORATION IN VIOLATION OF THE
PROVISIONS OF SECTION 7 OF THIS ACT, AND: 

"(2)  THAT THE ENJOINING THEREOF PENDING THE ISSUANCE OF A COMPLAINT
BY THE COMMISSION UNDER THIS SECTION AND UNTIL SUCH COMPLAINT IS
DISMISSED BY THE COMMISSION OR SET ASIDE BY THE COURT ON REVIEW, WOULD
BE TO THE INTEREST OF THE PUBLIC. 

"THE COMMISSION  ...  MAY BRING SUIT IN A DISTRICT COURT OF THE
UNITED STATES  ... TO PREVENT AND RESTRAIN VIOLATION OF SECTION 7 OF
THIS ACT.  UPON PROPER SHOWING A TEMPORARY INJUNCTION OR RESTRAINING
ORDER SHALL BE GRANTED WITHOUT BOND  ...  ."  HEARINGS, SUPRA, NOTE 1,
AT 29-30.    FN4  ID., AT 35. 

FN5  H.R. 9424, ALTHOUGH WORDED IN GREATER DETAIL, WAS IN SUBSTANCE
LIKE THE FTC PROPOSAL. 

FN6  LETTER TO CHAIRMAN CELLER, IN HEARINGS BEFORE THE ANTITRUST
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY, 85TH CONG., 1ST
SESS., SER.  NO. 2, P. 103 (1957). 

FN7  HEARINGS, SUPRA, NOTE 2, AT 45. 

FN8  IBID. 

FN9  HEARINGS BEFORE THE ANTITRUST SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 87TH CONG., 1ST SESS., SER.  NO. 5, PP. 87,
107 (1961).  IT WAS IN THIS SESSION THAT THE FTC ABANDONED ITS PRIOR
ADVOCACY OF PROPOSALS THAT IT SEEK RELIEF IN THE DISTRICT COURTS,
URGING INSTEAD THAT IT BE GIVEN POWER TO ISSUE ITS OWN INJUNCTIONS AND
RESTRAINING ORDERS.  ID., AT 88, 91.  COMPARE TESTIMONY OF FTC CHAIRMAN
GWYNNE, HEARINGS, SUPRA, NOTE 2, AT 49-59. 

FN10  SEE, E.G., STATEMENT OF CONGRESSMAN CELLER, HEARINGS, SUPRA,
NOTE 2, AT 156-160; STATEMENT OF CONGRESSMAN PATMAN, HEARINGS, SUPRA,
NOTE 9, AT 45; STATEMENT OF SENATOR KEFAUVER, ID., AT 46. 

FN11  E.G., THE PRESIDENT'S ECONOMIC REPORT, SUBMITTED TO CONGRESS ON
JANUARY 23, 1957, P. 51; LETTER FROM ATTORNEY GENERAL KENNEDY, MAY 2,
1961, IN HEARINGS, SUPRA, NOTE 9, AT 58. 

FN12  BRIGGS MFG. CO. V. CRANE CO., 185 F. SUPP. 177 (D.C.E.D.
MICH.), AFF'D, 280 F.2D 747 (C.A. 6TH CIR. 1960). 

FN13  FTC CHAIRMAN DIXON UTILIZED THE SAME FORUM THE FOLLOWING YEAR
TO PLEAD FOR LEGISLATION WHICH WOULD AUTHORIZE THE COMMISSION TO ISSUE
ITS OWN TEMPORARY RELIEF.  SEE DIXON, THE FEDERAL TRADE COMMISSION IN
1961, 1962 ANTITRUST LAW SYMPOSIUM 16, 19-21. 
..END :





















KATZENBACH V. MORGAN 384 U.S. 641 


NO. 847.  ARGUED APRIL 18, 1966.  - DECIDED JUNE 13, 1966.* - 247 F.
SUPP. 196, REVERSED. 

*TOGETHER WITH NO. 877, NEW YORK CITY BOARD OF ELECTIONS V. MORGAN ET
UX., ALSO ON APPEAL FROM THE SAME COURT. 


APPELLEES, REGISTERED VOTERS IN NEW YORK CITY, BROUGHT THIS SUIT TO
CHALLENGE THE CONSTITUTIONALITY OF SEC 4(E) OF THE VOTING RIGHTS ACT OF
1965 TO THE EXTENT THAT THE PROVISION PROHIBITS ENFORCEMENT OF THE
STATUTORY REQUIREMENT FOR LITERACY IN ENGLISH AS APPLIED TO NUMEROUS
NEW YORK CITY RESIDENTS FROM PUERTO RICO WHO, BECAUSE OF THAT
REQUIREMENT, HAD PREVIOUSLY BEEN DENIED THE RIGHT TO VOTE.  SECTION
4(E) PROVIDES THAT NO PERSON WHO HAS COMPLETED THE SIXTH GRADE IN A
PUBLIC SCHOOL, OR AN ACCREDITED PRIVATE SCHOOL, IN PUERTO RICO IN WHICH
THE LANGUAGE OF INSTRUCTION WAS OTHER THAN ENGLISH SHALL BE
DISFRANCHISED FOR INABILITY TO READ OR WRITE ENGLISH.  A THREE-JUDGE
DISTRICT COURT GRANTED APPELLEES DECLARATORY AND INJUNCTIVE RELIEF,
HOLDING THAT IN ENACTING SEC 4(E) CONGRESS HAD EXCEEDED ITS POWERS. 
HELD:  SECTION 4(E) IS A PROPER EXERCISE OF THE POWERS UNDER SEC 5 OF
THE FOURTEENTH AMENDMENT, AND BY VIRTUE OF THE SUPREMACY CLAUSE, NEW
YORK'S ENGLISH LITERACY REQUIREMENT CANNOT BE ENFORCED TO THE EXTENT IT
CONFLICTS WITH SEC 4(E).  PP. 646-658. 

(A)  THOUGH THE STATES HAVE POWER TO FIX VOTING QUALIFICATIONS, THEY
CANNOT DO SO CONTRARY TO THE FOURTEENTH AMENDMENT OR ANY OTHER
CONSTITUTIONAL PROVISION.  P. 647. 

(B)  CONGRESS' POWER UNDER SEC 5 OF THE FOURTEENTH AMENDMENT TO ENACT
LEGISLATION PROHIBITING ENFORCEMENT OF A STATE LAW IS NOT LIMITED TO
SITUATIONS WHERE THE STATE LAW HAS BEEN ADJUDGED TO VIOLATE THE
PROVISIONS OF THE AMENDMENT WHICH CONGRESS SOUGHT TO ENFORCE.  IT IS
THEREFORE THE COURT'S TASK HERE TO DETERMINE, NOT WHETHER NEW YORK'S
ENGLISH LITERACY REQUIREMENT AS APPLIED VIOLATES THE EQUAL PROTECTION
CLAUSE, BUT WHETHER SEC 4(E)'S PROHIBITION AGAINST THAT REQUIREMENT IS
"APPROPRIATE LEGISLATION" TO ENFORCE THE CLAUSE.  LASSITER V.
NORTHAMPTON ELECTION BD., 360 U.S. 45, DISTINGUISHED.  PP. 648-650. 

(C)  SECTION 5 OF THE FOURTEENTH AMENDMENT IS A POSITIVE GRANT OF
LEGISLATIVE POWER AUTHORIZING CONGRESS TO EXERCISE ITS DISCRETION IN
DETERMINING THE NEED FOR AND NATURE OF LEGISLATION TO SECURE FOURTEENTH
AMENDMENT GUARANTEES.  THE TEST OF MCCULLOCH V. MARYLAND, 4 WHEAT. 
316, 421, IS TO BE APPLIED TO DETERMINE WHETHER A CONGRESSIONAL
ENACTMENT IS "APPROPRIATE LEGISLATION" UNDER SEC 5 OF THE FOURTEENTH
AMENDMENT.  PP. 650-651. 

(D)  SECTION 4(E) WAS ENACTED TO ENFORCE THE EQUAL PROTECTION CLAUSE
AS A MEASURE TO SECURE NONDISCRIMINATORY TREATMENT BY GOVERNMENT FOR
NUMEROUS PUERTO RICANS RESIDING IN NEW YORK, BOTH IN THE IMPOSITION OF
VOTING QUALIFICATIONS AND THE PROVISION OR ADMINISTRATION OF
GOVERNMENTAL SERVICES.  PP. 652-653. 

(E)  CONGRESS HAD AN ADEQUATE BASIS FOR DECIDING THAT SEC 4(E) WAS
PLAINLY ADAPTED TO THAT END.  PP. 653-656. 

(F)  SECTION 4(E) DOES NOT ITSELF INVIDIOUSLY DISCRIMINATE IN
VIOLATION OF THE FIFTH AMENDMENT FOR FAILURE TO EXTEND RELIEF TO THOSE
EDUCATED IN NON-AMERICAN FLAG SCHOOLS.  A REFORM MEASURE SUCH AS SEC
4(E) IS NOT INVALID BECAUSE CONGRESS MIGHT HAVE GONE FURTHER THAN IT
DID AND DID NOT ELIMINATE ALL THE EVILS AT THE SAME TIME.  PP. 656
658. 

KATZENBACH, ATTORNEY GENERAL, ET AL. V. MORGAN ET UX. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THESE CASES CONCERN THE CONSTITUTIONALITY OF SEC 4(E) OF THE VOTING
RIGHTS ACT OF 1965.  (FN1) THAT LAW, IN THE RESPECTS PERTINENT IN THESE
CASES, PROVIDES THAT NO PERSON WHO HAS SUCCESSFULLY COMPLETED THE SIXTH
PRIMARY GRADE IN A PUBLIC SCHOOL IN, OR A PRIVATE SCHOOL ACCREDITED BY,
THE COMMONWEALTH OF PUERTO RICO IN WHICH THE LANGUAGE OF INSTRUCTION
WAS OTHER THAN ENGLISH SHALL BE DENIED THE RIGHT TO VOTE IN ANY
ELECTION BECAUSE OF HIS INABILITY TO READ OR WRITE ENGLISH.  APPELLEES,
REGISTERED VOTERS IN NEW YORK CITY, BROUGHT THIS SUIT TO CHALLENGE THE
CONSTITUTIONALITY OF SEC 4(E) INSOFAR AS IT PRO TANTO PROHIBITS THE
ENFORCEMENT OF THE ELECTION LAWS OF NEW YORK (FN2) REQUIRING AN ABILITY
TO READ AND WRITE ENGLISH AS A CONDITION OF VOTING.  UNDER THESE LAWS
MANY OF THE SEVERAL HUNDRED THOUSAND NEW YORK CITY RESIDENTS WHO HAVE
MIGRATED THERE FROM THE COMMONWEALTH OF PUERTO RICO HAD PREVIOUSLY BEEN
DENIED THE RIGHT TO VOTE, AND APPELLEES ATTACK SEC 4(E) INSOFAR AS IT
WOULD ENABLE MANY OF THESE CITIZENS TO VOTE.  (FN3)  PURSUANT TO SEC
14(B) OF THE VOTING RIGHTS ACT OF 1965, APPELLEES COMMENCED THIS
PROCEEDING IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SEEKING A
DECLARATION THAT SEC 4(E) IS INVALID AND AN INJUNCTION PROHIBITING
APPELLANTS, THE ATTORNEY GENERAL OF THE UNITED STATES AND THE NEW YORK
CITY BOARD OF ELECTIONS, FROM EITHER ENFORCING OR COMPLYING WITH SEC
4(E).  (FN4)  A THREE-JUDGE DISTRICT COURT WAS DESIGNATED.  28 U.S.C.
SECS 2282, 2284 (1964 ED.).  UPON CROSS MOTIONS FOR SUMMARY JUDGMENT,
THAT COURT, ONE JUDGE DISSENTING, GRANTED THE DECLARATORY AND
INJUNCTIVE RELIEF APPELLEES SOUGHT.  THE COURT HELD THAT IN ENACTING
SEC 4(E) CONGRESS EXCEEDED THE POWERS GRANTED TO IT BY THE CONSTITUTION
AND THEREFORE USURPED POWERS RESERVED TO THE STATES BY THE TENTH
AMENDMENT.  247 F. SUPP.  196.  APPEALS WERE TAKEN DIRECTLY TO THIS
COURT, 28 U.S.C. SEC 1252, 1253 (1964 ED.), AND WE NOTED PROBABLE
JURISDICTION.  382 U.S. 1007.  WE REVERSE.  WE HOLD THAT, IN THE
APPLICATION CHALLENGED IN THESE CASES, SEC 4(E) IS A PROPER EXERCISE OF
THE POWERS GRANTED TO CONGRESS BY SEC 5 OF THE FOURTEENTH AMENDMENT
(FN5) AND THAT BY FORCE OF THE SUPREMACY CLAUSE, ARTICLE VI, THE NEW
YORK ENGLISH LITERACY REQUIREMENT CANNOT BE ENFORCED TO THE EXTENT THAT
IT IS INCONSISTENT WITH SEC 4(E). 

UNDER THE DISTRIBUTION OF POWERS EFFECTED BY THE CONSTITUTION, THE
STATES ESTABLISH QUALIFICATIONS FOR VOTING FOR STATE OFFICERS, AND THE
QUALIFICATIONS ESTABLISHED BY THE STATES FOR VOTING FOR MEMBERS OF THE
MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE ALSO DETERMINE WHO MAY
VOTE FOR UNITED STATES REPRESENTATIVES AND SENATORS, ART. I, SEC 2;
SEVENTEENTH AMENDMENT; EX PARTE YARBROUGH, 110 U.S. 651, 663.  BUT, OF
COURSE, THE STATES HAVE NO POWER TO GRANT OR WITHHOLD THE FRANCHISE ON
CONDITIONS THAT ARE FORBIDDEN BY THE FOURTEENTH AMENDMENT, OR ANY OTHER
PROVISION OF THE CONSTITUTION.  SUCH EXERCISES OF STATE POWER ARE NO
MORE IMMUNE TO THE LIMITATIONS OF THE FOURTEENTH AMENDMENT THAN ANY
OTHER STATE ACTION.  THE EQUAL PROTECTION CLAUSE ITSELF HAS BEEN HELD
TO FORBID SOME STATE LAWS THAT RESTRICT THE RIGHT TO VOTE.  (FN6) 

THE ATTORNEY GENERAL OF THE STATE OF NEW YORK ARGUES THAT AN EXERCISE
OF CONGRESSIONAL POWER UNDER SEC 5 OF THE FOURTEENTH AMENDMENT THAT
PROHIBITS THE ENFORCEMENT OF A STATE LAW CAN ONLY BE SUSTAINED IF THE
JUDICIAL BRANCH DETERMINES THAT THE STATE LAW IS PROHIBITED BY THE
PROVISIONS OF THE AMENDMENT THAT CONGRESS SOUGHT TO ENFORCE.  MORE
SPECIFICALLY, HE URGES THAT SEC 4(E) CANNOT BE SUSTAINED AS APPROPRIATE
LEGISLATION TO ENFORCE THE EQUAL PROTECTION CLAUSE UNLESS THE JUDICIARY
DECIDES - EVEN WITH THE GUIDANCE OF A CONGRESSIONAL JUDGMENT - THAT THE
APPLICATION OF THE ENGLISH LITERACY REQUIREMENT PROHIBITED BY SEC 4(E)
IS FORBIDDEN BY THE EQUAL PROTECTION CLAUSE ITSELF.  WE DISAGREE. 
NEITHER THE LANGUAGE NOR HISTORY OF SEC 5 SUPPORTS SUCH A
CONSTRUCTION.  (FN7)  AS WAS SAID WITH REGARD TO SEC 5 IN EX PARTE
VIRGINIA, 100 U.S. 339, 345, "IT IS THE POWER OF CONGRESS WHICH HAS
BEEN ENLARGED.  CONGRESS IS AUTHORIZED TO ENFORCE THE PROHIBITIONS BY
APPROPRIATE LEGISLATION.  SOME LEGISLATION IS CONTEMPLATED TO MAKE THE
AMENDMENTS FULLY EFFECTIVE."  A CONSTRUCTION OF SEC 5 THAT WOULD
REQUIRE A JUDICIAL DETERMINATION THAT THE ENFORCEMENT OF THE STATE LAW
PRECLUDED BY CONGRESS VIOLATED THE AMENDMENT, AS A CONDITION OF
SUSTAINING THE CONGRESSIONAL ENACTMENT, WOULD DEPRECIATE BOTH
CONGRESSIONAL RESOURCEFULNESS AND CONGRESSIONAL RESPONSIBILITY FOR
IMPLEMENTING THE AMENDMENT.  (FN8)  IT WOULD CONFINE THE LEGISLATIVE
POWER IN THIS CONTEXT TO THE INSIGNIFICANT ROLE OF ABROGATING ONLY
THOSE STATE LAWS THAT THE JUDICIAL BRANCH WAS PREPARED TO ADJUDGE
UNCONSTITUTIONAL, OR OF MERELY INFORMING THE JUDGMENT OF THE JUDICIARY
BY PARTICULARIZING THE "MAJESTIC GENERALITIES" OF SEC 1 OF THE
AMENDMENT.  SEE FAY V. NEW YORK, 332 U.S. 261, 282-284. 

THUS OUR TASK IN THIS CASE IS NOT TO DETERMINE WHETHER THE NEW YORK
ENGLISH LITERACY REQUIREMENT AS APPLIED TO DENY THE RIGHT TO VOTE TO A
PERSON WHO SUCCESSFULLY COMPLETED THE SIXTH GRADE IN A PUERTO RICAN
SCHOOL VIOLATES THE EQUAL PROTECTION CLAUSE.  ACCORDINGLY, OUR DECISION
IN LASSITER V. NORTHAMPTON ELECTION BD., 360 U.S. 45, SUSTAINING THE
NORTH CAROLINA ENGLISH LITERACY REQUIREMENT AS NOT IN ALL CIRCUMSTANCES
PROHIBITED BY THE FIRST SECTIONS OF THE FOURTEENTH AND FIFTEENTH
AMENDMENTS, IS INAPPOSITE.  COMPARE ALSO GUINN V. UNITED STATES, 238
U.S. 347, 366; CAMACHO V. DOE, 31 MISC. 2D 692, 221 N.Y.S.2D 262(1958),
AFF'D 7 N.Y.2D 762, 163 N.E.2D 140 (1959); CAMACHO V. ROGERS, 199 F.
SUPP. 155 (D.C.S.D.N.Y. 1961).  LASSITER DID NOT PRESENT THE QUESTION
BEFORE US HERE:  WITHOUT REGARD TO WHETHER THE JUDICIARY WOULD FIND
THAT THE EQUAL PROTECTION CLAUSE ITSELF NULLIFIES NEW YORK'S ENGLISH
LITERACY REQUIREMENT AS SO APPLIED, COULD CONGRESS PROHIBIT THE
ENFORCEMENT OF THE STATE LAW BY LEGISLATING UNDER SEC 5 OF THE
FOURTEENTH AMENDMENT?  IN ANSWERING THIS QUESTION, OUR TASK IS LIMITED
TO DETERMINING WHETHER SUCH LEGISLATION IS, AS REQUIRED BY SEC 5,
APPROPRIATE LEGISLATION TO ENFORCE THE EQUAL PROTECTION CLAUSE. 

BY INCLUDING SEC 5 THE DRAFTSMEN SOUGHT TO GRANT TO CONGRESS, BY A
SPECIFIC PROVISION APPLICABLE TO THE FOURTEENTH AMENDMENT, THE SAME
BROAD POWERS EXPRESSED IN THE NECESSARY AND PROPER CLAUSE, ART. I, SEC
8, CL. 18.  (FN9)  THE CLASSIC FORMULATION OF THE REACH OF THOSE POWERS
WAS ESTABLISHED BY CHIEF JUSTICE MARSHALL IN MCCULLOCH V. MARYLAND, 4
WHEAT.  316, 421: 

"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." 

EX PARTE VIRGINIA, 100 U.S., AT 345-346, DECIDED 12 YEARS AFTER THE
ADOPTION OF THE FOURTEENTH AMENDMENT, HELD THAT CONGRESSIONAL POWER
UNDER SEC 5 HAD THIS SAME BROAD SCOPE: 

"WHATEVER LEGISLATION IS APPROPRIATE, THAT IS, ADAPTED TO CARRY OUT
THE OBJECTS THE AMENDMENTS HAVE IN VIEW, WHATEVER TENDS TO ENFORCE
SUBMISSION TO THE PROHIBITIONS THEY CONTAIN, AND TO SECURE TO ALL
PERSONS THE ENJOYMENT OF PERFECT EQUALITY OF CIVIL RIGHTS AND THE EQUAL
PROTECTION OF THE LAWS AGAINST STATE DENIAL OR INVASION, IF NOT
PROHIBITED, IS BROUGHT WITHIN THE DOMAIN OF CONGRESSIONAL POWER." 
STRAUDER V. WEST VIRGINIA, 100 U.S. 303, 311; VIRGINIA V. RIVES, 100
U.S. 313, 318.  SECTION 2 OF THE FIFTEENTH AMENDMENT GRANTS CONGRESS A
SIMILAR POWER TO ENFORCE BY "APPROPRIATE LEGISLATION" THE PROVISIONS OF
THAT AMENDMENT; AND WE RECENTLY HELD IN SOUTH CAROLINA V. KATZENBACH,
383 U.S. 301, 326, THAT "THE BASIC TEST TO BE APPLIED IN A CASE
INVOLVING SEC 2 OF THE FIFTEENTH AMENDMENT IS THE SAME AS IN ALL CASES
CONCERNING THE EXPRESS POWERS OF CONGRESS WITH RELATION TO THE RESERVED
POWERS OF THE STATES."  THAT TEST WAS IDENTIFIED AS THE ONE FORMULATED
IN MCCULLOCH V. MARYLAND.  SEE ALSO JAMES EVERARD'S BREWERIES V. DAY,
265 U.S. 545, 558-559 (EIGHTEENTH AMENDMENT).  THUS THE MCCULLOCH V.
MARYLAND STANDARD IS THE MEASURE OF WHAT CONSTITUTES "APPROPRIATE
LEGISLATION" UNDER SEC 5 OF THE FOURTEENTH AMENDMENT.  CORRECTLY
VIEWED, SEC 5 IS A POSITIVE GRANT OF LEGISLATIVE POWER AUTHORIZING
CONGRESS TO EXERCISE ITS DISCRETION IN DETERMINING WHETHER AND WHAT
LEGISLATION IS NEEDED TO SECURE THE GUARANTEES OF THE FOURTEENTH
AMENDMENT. 

WE THEREFORE PROCEED TO THE CONSIDERATION WHETHER SEC 4(E) IS
"APPROPRIATE LEGISLATION" TO ENFORCE THE EQUAL PROTECTION CLAUSE, THAT
IS, UNDER THE MCCULLOCH V. MARYLAND STANDARD, WHETHER SEC 4(E) MAY BE
REGARDED AS AN ENACTMENT TO ENFORCE THE EQUAL PROTECTION CLAUSE,
WHETHER IT IS "PLAINLY ADAPTED TO THAT END" AND WHETHER IT IS NOT
PROHIBITED BY BUT IS CONSISTENT WITH "THE LETTER AND SPIRIT OF THE
CONSTITUTION."  (FN10) 

THERE CAN BE NO DOUBT THAT SEC 4(E) MAY BE REGARDED AS AN ENACTMENT
TO ENFORCE THE EQUAL PROTECTION CLAUSE.  CONGRESS EXPLICITLY DECLARED
THAT IT ENACTED SEC 4(E) "TO SECURE THE RIGHTS UNDER THE FOURTEENTH
AMENDMENT OF PERSONS EDUCATED IN AMERICAN-FLAG SCHOOLS IN WHICH THE
PREDOMINANT CLASSROOM LANGUAGE WAS OTHER THAN ENGLISH."  THE PERSONS
REFERRED TO INCLUDE THOSE WHO HAVE MIGRATED FROM THE COMMONWEALTH OF
PUERTO RICO TO NEW YORK AND WHO HAVE BEEN DENIED THE RIGHT TO VOTE
BECAUSE OF THEIR INABILITY TO READ AND WRITE ENGLISH, AND THE
FOURTEENTH AMENDMENT RIGHTS REFERRED TO INCLUDE THOSE EMANATING FROM
THE EQUAL PROTECTION CLAUSE.  MORE SPECIFICALLY, SEC 4(E) MAY BE VIEWED
AS A MEASURE TO SECURE FOR THE PUERTO RICAN COMMUNITY RESIDING IN NEW
YORK NONDISCRIMINATORY TREATMENT BY GOVERNMENT - BOTH IN THE IMPOSITION
OF VOTING QUALIFICATIONS AND THE PROVISION OR ADMINISTRATION OF
GOVERNMENTAL SERVICES, SUCH AS PUBLIC SCHOOLS, PUBLIC HOUSING AND LAW
ENFORCEMENT. 

THESE AIMS OF THE EQUAL PROTECTION CLAUSE.  THE PRACTICAL EFFECT OF SEC
4(E) IS TO PROHIBIT NEW YORK FROM DENYING THE RIGHT TO VOTE TO LARGE
SEGMENTS OF ITS PUERTO RICAN COMMUNITY.  CONGRESS HAS THUS PROHIBITED
THE STATE FROM DENYING TO THAT COMMUNITY THE RIGHT THAT IS
"PRESERVATIVE OF ALL RIGHTS."  YICK WO V. HOPKINS, 118 U.S. 356, 370. 
THIS ENHANCED POLITICAL POWER WILL BE HELPFUL IN GAINING
NONDISCRIMINATORY TREATMENT IN PUBLIC SERVICES FOR THE ENTIRE PUERTO
RICAN COMMUNITY.  (FN11)  SECTION 4(E) THEREBY ENABLES THE PUERTO RICAN
MINORITY BETTER TO OBTAIN "PERFECT EQUALITY OF CIVIL RIGHTS AND THE
EQUAL PROTECTION OF THE LAWS."  IT WAS WELL WITHIN CONGRESSIONAL
AUTHORITY TO SAY THAT THIS NEED OF THE PUERTO RICAN MINORITY FOR THE
VOTE WARRANTED FEDERAL INTRUSION UPON ANY STATE INTERESTS SERVED BY THE
ENGLISH LITERACY REQUIREMENT.  IT WAS FOR CONGRESS, AS THE BRANCH THAT
MADE THIS JUDGMENT, TO ASSESS AND WEIGH THE VARIOUS CONFLICTING
CONSIDERATIONS - THE RISK OR PERVASIVENESS OF THE DISCRIMINATION IN
GOVERNMENTAL SERVICES, THE EFFECTIVENESS OF ELIMINATING THE STATE
RESTRICTION ON THE RIGHT TO VOTE AS A MEANS OF DEALING WITH THE EVIL,
THE ADEQUACY OR AVAILABILITY OF ALTERNATIVE REMEDIES, AND THE NATURE
AND SIGNIFICANCE OF THE STATE INTERESTS THAT WOULD BE AFFECTED BY THE
NULLIFICATION OF THE ENGLISH LITERACY REQUIREMENT AS APPLIED TO
RESIDENTS WHO HAVE SUCCESSFULLY COMPLETED THE SIXTH GRADE IN A PUERTO
RICAN SCHOOL.  IT IS NOT FOR US TO REVIEW THE CONGRESSIONAL RESOLUTION
OF THESE FACTORS.  IT IS ENOUGH THAT WE BE ABLE TO PERCEIVE A BASIS
UPON WHICH THE CONGRESS MIGHT RESOLVE THE CONFLICT AS IT DID.  THERE
PLAINLY WAS SUCH A BASIS TO SUPPORT SEC 4(E) IN THE APPLICATION IN
QUESTION IN THIS CASE.  ANY CONTRARY CONCLUSION WOULD REQUIRE US TO BE
BLIND TO THE REALITIES FAMILIAR TO THE LEGISLATORS.  (FN12) 

THE RESULT IS NO DIFFERENT IF WE CONFINE OUR INQUIRY TO THE QUESTION
WHETHER SEC 4(E) WAS MERELY LEGISLATION AIMED AT THE ELIMINATION OF AN
INVIDIOUS DISCRIMINATION IN ESTABLISHING VOTER QUALIFICATIONS.  WE ARE
TOLD THAT NEW YORK'S ENGLISH LITERACY REQUIREMENT ORIGINATED IN THE
DESIRE TO PROVIDE AN INCENTIVE FOR NON-ENGLISH SPEAKING IMMIGRANTS TO
LEARN THE ENGLISH LANGUAGE AND IN ORDER TO ASSURE THE INTELLIGENT
EXERCISE OF THE FRANCHISE.  YET CONGRESS MIGHT WELL HAVE QUESTIONED, IN
LIGHT OF THE MANY EXEMPTIONS PROVIDED,  (FN13) AND SOME EVIDENCE
SUGGESTING THAT PREJUDICE PLAYED A PROMINENT ROLE IN THE ENACTMENT OF
THE REQUIREMENT,  (FN14) WHETHER THESE WERE ACTUALLY THE INTERESTS
BEING SERVED.  CONGRESS MIGHT HAVE ALSO QUESTIONED WHETHER DENIAL OF A
RIGHT DEEMED SO PRECIOUS AND FUNDAMENTAL IN OUR SOCIETY WAS A NECESSARY
OR APPROPRIATE MEANS OF ENCOURAGING PERSONS TO LEARN ENGLISH, OR OF
FURTHERING THE GOAL OF AN INTELLIGENT EXERCISE OF THE FRANCHISE. 
(FN15) FINALLY, CONGRESS MIGHT WELL HAVE CONCLUDED THAT AS A MEANS OF
FURTHERING THE INTELLIGENT EXERCISE OF THE FRANCHISE, AN ABILITY TO
READ OR UNDERSTAND SPANISH IS AS EFFECTIVE AS ABILITY TO READ ENGLISH
FOR THOSE OF WHOM SPANISH-LANGUAGE NEWSPAPERS AND SPANISH-LANGUAGE
RADIO AND TELEVISION PROGRAMS ARE AVAILABLE TO INFORM THEM OF ELECTION
ISSUES AND GOVERNMENTAL AFFAIRS.  (FN16)  SINCE CONGRESS UNDERTOOK TO
LEGISLATE SO AS TO PRECLUDE THE ENFORCEMENT OF THE STATE LAW, AND DID
SO IN THE CONTEXT OF A GENERAL APPRAISAL OF LITERACY REQUIREMENTS FOR
VOTING, SEE SOUTH CAROLINA V. KATZENBACH, SUPRA, TO WHICH IT BROUGHT A
SPECIALLY INFORMED LEGISLATIVE COMPETENCE,  (FN17) IT WAS CONGRESS'
PREROGATIVE TO WEIGH THESE COMPETING CONSIDERATIONS.  HERE AGAIN, IT IS
ENOUGH THAT WE PERCEIVE A BASIS UPON WHICH CONGRESS MIGHT PREDICATE A
JUDGMENT THAT THE APPLICATION OF NEW YORK'S ENGLISH LITERACY
REQUIREMENT TO DENY THE RIGHT TO VOTE TO A PERSON WITH A SIXTH GRADE
EDUCATION IN PUERTO RICAN SCHOOLS IN WHICH THE LANGUAGE OF INSTRUCTION
WAS OTHER THAN ENGLISH CONSTITUTED AN INVIDIOUS DISCRIMINATION IN
VIOLATION OF THE EQUAL PROTECTION CLAUSE. 

THERE REMAINS THE QUESTION WHETHER THE CONGRESSIONAL REMEDIES ADOPTED
IN SEC 4(E) CONSTITUTE MEANS WHICH ARE NOT PROHIBITED BY, BUT ARE
CONSISTENT "WITH THE LETTER AND SPIRIT OF THE CONSTITUTION."  THE ONLY
RESPECT IN WHICH APPELLEES CONTEND THAT SEC 4(E) FAILS IN THIS REGARD
IS THAT THE SECTION ITSELF WORKS AN INVIDIOUS DISCRIMINATION IN
VIOLATION OF THE FIFTH AMENDMENT BY PROHIBITING THE ENFORCEMENT OF THE
ENGLISH LITERACY REQUIREMENT ONLY FOR THOSE EDUCATED IN AMERICAN-FLAG
SCHOOLS (SCHOOLS LOCATED WITHIN UNITED STATES JURISDICTION) IN WHICH
THE LANGUAGE OF INSTRUCTION WAS OTHER THAN ENGLISH, AND NOT FOR THOSE
EDUCATED IN SCHOOLS BEYOND THE TERRITORIAL LIMITS OF THE UNITED STATES
IN WHICH THE LANGUAGE OF INSTRUCTION WAS ALSO OTHER THAN ENGLISH.  THIS
IS NOT A COMPLAINT THAT CONGRESS, IN ENACTING SEC 4(E), HAS
UNCONSTITUTIONALLY DENIED OR DILUTED ANYONE'S RIGHT TO VOTE BUT RATHER
THAT CONGRESS VIOLATED THE CONSTITUTION BY NOT EXTENDING THE RELIEF
EFFECTED IN SEC 4(E) TO THOSE EDUCATED IN NON-AMERICAN-FLAG SCHOOLS. 
WE NEED NOT PAUSE TO DETERMINE WHETHER APPELLEES HAVE A SUFFICIENT
PERSONAL INTEREST TO HAVE SEC 4(E) INVALIDATED ON THIS GROUND, SEE
GENERALLY UNITED STATES V. RAINES, 362 U.S. 17, SINCE THE ARGUMENT, IN
OUR VIEW, FALLS ON THE MERITS. 

EXTENDS THE FRANCHISE TO PERSONS WHO OTHERWISE WOULD BE DENIED IT BY
STATE LAW.  THUS WE NEED NOT DECIDE WHETHER A STATE LITERACY LAW
CONDITIONING THE RIGHT TO VOTE ON ACHIEVING A CERTAIN LEVEL OF
EDUCATION IN AN AMERICAN-FLAG SCHOOL (REGARDLESS OF THE LANGUAGE OF
INSTRUCTION) DISCRIMINATES INVIDIOUSLY AGAINST THOSE EDUCATED IN NON
AMERICAN-FLAG SCHOOLS.  WE NEED ONLY DECIDE WHETHER THE CHALLENGED
LIMITATION ON THE RELIEF EFFECTED IN SEC 4(E) WAS PERMISSIBLE.  IN
DECIDING THAT QUESTION, THE PRINCIPLE THAT CALLS FOR THE CLOSEST
SCRUTINY OF DISTINCTIONS IN LAWS DENYING FUNDAMENTAL RIGHTS, SEE N. 15,
SUPRA, IS INAPPLICABLE; FOR THE DISTINCTION CHALLENGED BY APPELLEES IS
PRESENTED ONLY AS A LIMITATION ON A REFORM MEASURE AIMED AT ELIMINATING
AN EXISTING BARRIER TO THE EXERCISE OF THE FRANCHISE.  RATHER, IN
DECIDING THE CONSTITUTIONAL PROPRIETY OF THE LIMITATIONS IN SUCH A
REFORM MEASURE WE ARE GUIDED BY THE FAMILIAR PRINCIPLES THAT A "STATUTE
IS NOT INVALID UNDER THE CONSTITUTION BECAUSE IT MIGHT HAVE GONE
FARTHER THAN IT DID," ROSCHEN V. WARD, 279 U.S. 337, 339, THAT A
LEGISLATURE NEED NOT "STRIKE AT ALL EVILS AT THE SAME TIME," SEMLER V.
DENTAL EXAMINERS, 294 U.S. 608, 610, AND THAT "REFORM MAY TAKE ONE STEP
AT A TIME, ADDRESSING ITSELF TO THE PHASE OF THE PROBLEM WHICH SEEMS
MOST ACUTE TO THE LEGISLATIVE MIND," WILLIAMSON V. LEE OPTICAL CO., 348
U.S. 483, 489. 

GUIDED BY THESE PRINCIPLES, WE ARE SATISFIED THAT APPELLEES'
CHALLENGE TO THIS LIMITATION IN SEC 4(E) IS WITHOUT MERIT.  IN THE
CONTEXT OF THE CASE BEFORE US, THE CONGRESSIONAL CHOICE TO LIMIT THE
RELIEF EFFECTED IN SEC 4(E) MAY, FOR EXAMPLE, REFLECT CONGRESS' GREATER
FAMILIARITY WITH THE QUALITY OF INSTRUCTION IN AMERICAN-FLAG SCHOOLS,
(FN18) A RECOGNITION OF THE UNIQUE HISTORIC RELATIONSHIP BETWEEN THE
CONGRESS AND THE COMMONWEALTH OF PUERTO RICO,  (FN19) AN AWARENESS OF
THE FEDERAL GOVERNMENT'S ACCEPTANCE OF THE DESIRABILITY OF THE USE OF
SPANISH AS THE LANGUAGE OF INSTRUCTION IN COMMONWEALTH SCHOOLS,  (FN20)
AND THE FACT THAT CONGRESS HAS FOSTERED POLICIES ENCOURAGING MIGRATION
FROM THE COMMONWEALTH TO THE STATES.  (FN21)  WE HAVE NO OCCASION TO
DETERMINE IN THIS CASE WHETHER SUCH FACTORS WOULD JUSTIFY A SIMILAR
DISTINCTION EMBODIED IN A VOTING-QUALIFICATION LAW THAT DENIED THE
FRANCHISE TO PERSONS EDUCATED IN NON-AMERICAN-FLAG SCHOOLS.  WE HOLD
ONLY THAT THE LIMITATION ON RELIEF EFFECTED IN SEC 4(E) DOES NOT
CONSTITUTE A FORBIDDEN DISCRIMINATION SINCE THESE FACTORS MIGHT WELL
HAVE BEEN THE BASIS FOR THE DECISION OF CONGRESS TO GO "NO FARTHER THAN
IT DID." 

WE THEREFORE CONCLUDE THAT SEC 4(E), IN THE APPLICATION CHALLENGED IN
THIS CASE, IS APPROPRIATE LEGISLATION TO ENFORCE THE EQUAL PROTECTION
CLAUSE AND THAT THE JUDGMENT OF THE DISTRICT COURT MUST BE AND HEREBY
IS REVERSED. 

FN1  THE FULL TEXT OF SEC 4(E) IS AS FOLLOWS: 

"(1) CONGRESS HEREBY DECLARES THAT TO SECURE THE RIGHTS UNDER THE
FOURTEENTH AMENDMENT OF PERSONS EDUCATED IN AMERICAN-FLAG SCHOOLS IN
WHICH THE PREDOMINANT CLASSROOM LANGUAGE WAS OTHER THAN ENGLISH, IT IS
NECESSARY TO PROHIBIT THE STATES FROM CONDITIONING THE RIGHT TO VOTE OF
SUCH PERSONS ON ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY
MATTER IN THE ENGLISH LANGUAGE. 

"(2) NO PERSON WHO DEMONSTRATES THAT HE HAS SUCCESSFULLY COMPLETED
THE SIXTH PRIMARY GRADE IN A PUBLIC SCHOOL IN, OR A PRIVATE SCHOOL
ACCREDITED BY, ANY STATE OR TERRITORY, THE DISTRICT OF COLUMBIA, OR THE
COMMONWEALTH OF PUERTO RICO IN WHICH THE PREDOMINANT CLASSROOM LANGUAGE
WAS OTHER THAN ENGLISH, SHALL BE DENIED THE RIGHT TO VOTE IN ANY
FEDERAL, STATE, OR LOCAL ELECTION BECAUSE OF HIS INABILITY TO READ,
WRITE, UNDERSTAND, OR INTERPRET ANY MATTER IN THE ENGLISH LANGUAGE,
EXCEPT THAT IN STATES IN WHICH STATE LAW PROVIDES THAT A DIFFERENT
LEVEL OF EDUCATION IS PRESUMPTIVE OF LITERACY, HE SHALL DEMONSTRATE
THAT HE HAS SUCCESSFULLY COMPLETED AN EQUIVALENT LEVEL OF EDUCATION IN
A PUBLIC SCHOOL IN, OR A PRIVATE SCHOOL ACCREDITED BY, ANY STATE OR
TERRITORY, THE DISTRICT OF COLUMBIA, OR THE COMMONWEALTH OF PUERTO RICO
IN WHICH THE PREDOMINANT CLASSROOM LANGUAGE WAS OTHER THAN ENGLISH." 
79 STAT. 439, 42 U.S.C. SEC 1973BE) (1964 ED., SUPP. I). 

FN2  ARTICLE II, SEC 1, OF THE NEW YORK CONSTITUTION PROVIDES, IN
PERTINENT PART: 

"NOTWITHSTANDING THE FOREGOING PROVISIONS, AFTER JANUARY FIRST, ONE
THOUSAND NINE HUNDRED TWENTY-TWO, NO PERSON SHALL BECOME ENTITLED TO
VOTE BY ATTAINING MAJORITY, BY NATURALIZATION OR OTHERWISE, UNLESS SUCH
PERSON IS ALSO ABLE, EXCEPT FOR PHYSICAL DISABILITY, TO READ AND WRITE
ENGLISH." 

PART: 

"  ...  IN THE CASE OF A PERSON WHO BECAME ENTITLED TO VOTE IN THIS
STATE BY ATTAINING MAJORITY, BY NATURALIZATION OR OTHERWISE AFTER
JANUARY FIRST, NINETEEN HUNDRED TWENTY-TWO, SUCH PERSON MUST, IN
ADDITION TO THE FOREGOING PROVISIONS, BE ABLE, EXCEPT FOR PHYSICAL
DISABILITY, TO READ AND WRITE ENGLISH.  A 'NEW VOTER,' WITHIN THE
MEANING OF THIS ARTICLE, IS A PERSON WHO, IF HE IS ENTITLED TO VOTE IN
THIS STATE, SHALL HAVE BECOME SO ENTITLED ON OR AFTER JANUARY FIRST,
NINETEEN HUNDRED TWENTY-TWO, AND WHO HAS NOT ALREADY VOTED AT A GENERAL
ELECTION IN THE STATE OF NEW YORK AFTER MAKING PROOF OF ABILITY TO READ
AND WRITE ENGLISH, IN THE MANNER PROVIDED IN SECTION ONE HUNDRED SIXTY
EIGHT." 

PART: 

"1. THE BOARD OF REGENTS OF THE STATE OF NEW YORK SHALL MAKE
PROVISIONS FOR THE GIVING OF LITERACY TESTS. 

     *         *         *         *         * 

"2.  ...  BUT A NEW VOTER MAY PRESENT AS EVIDENCE OF LITERACY A
CERTIFICATE OR DIPLOMA SHOWING THAT HE HAS COMPLETED THE WORK UP TO AND
INCLUDING THE SIXTH GRADE OF AN APPROVED ELEMENTARY SCHOOL OR OF AN
APPROVED HIGHER SCHOOL IN WHICH ENGLISH IS THE LANGUAGE OF INSTRUCTION
OR A CERTIFICATE OR DIPLOMA SHOWING THAT HE HAS COMPLETED THE WORK UP
TO AND INCLUDING THE SIXTH GRADE IN A PUBLIC SCHOOL OR A PRIVATE SCHOOL
ACCREDITED BY THE COMMONWEALTH OF PUERTO RICO IN WHICH SCHOOL
INSTRUCTION IS CARRIED ON PREDOMINANTLY IN THE ENGLISH LANGUAGE OR A
MATRICULATON CARD ISSUED BY A COLLEGE OR UNIVERSITY TO A STUDENT THEN
AT SUCH INSTITUTION OR A CERTIFICATE OR A LETTER SIGNED BY AN OFFICIAL
OF THE UNIVERSITY OR COLLEGE CERTIFYING TO SUCH ATTENDANCE." 

4(E) WAS UNDER CONSIDERATION IN CONGRESS.  SEE 111 CONG. REC. 19376
19377.  THE PRIOR LAW REQUIRED THE SUCCESSFUL COMPLETION OF THE EIGHTH
RATHER THAN THE SIXTH GRADE IN A SCHOOL IN WHICH THE LANGUAGE OF
INSTRUCTION WAS ENGLISH. 

FN3  THIS LIMITATION ON APPELLEES' CHALLENGE TO SEC 4(E), AND THUS ON
THE SCOPE OF OUR INQUIRY, DOES NOT DISTORT THE PRIMARY INTENT OF SEC
4(E).  THE MEASURE WAS SPONSORED IN THE SENATE BY SENATORS JAVITS AND
KENNEDY AND IN THE HOUSE BY REPRESENTATIVES GILBERT AND RYAN, ALL OF
NEW YORK, FOR THE EXPLICIT PURPOSE OF DEALING WITH THE
DISENFRANCHISEMENT OF LARGE SEGMENTS OF THE PUERTO RICAN POPULATION IN
NEW YORK.  THROUGHOUT THE CONGRESSIONAL DEBATE IT WAS REPEATEDLY
ACKNOWLEDGED THAT SEC 4(E) HAD PARTICULAR REFERENCE TO THE PUERTO RICAN
POPULATION IN NEW YORK.  THAT SITUATION WAS THE ALMOST EXCLUSIVE
SUBJECT OF DISCUSSION.  SEE 111 CONG. REC. 11028, 11060-11074, 15666,
16235-16245, 16282-16283, 19192-19201, 19375-19378; SEE ALSO VOTING
RIGHTS, HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON
THE JUDICIARY ON H.R. 6400, 89TH CONG., 1ST SESS., 100-101, 420-421,
508-517 (1965).  THE SOLICITOR GENERAL INFORMS US IN HIS BRIEF TO THIS
COURT, THAT IN ALL PROBABILITY THE PRACTICAL EFFECT OF SEC 4(E) WILL BE
LIMITED TO ENFRANCHISING THOSE EDUCATED IN PUERTO RICAN SCHOOLS.  HE
ADVISES US THAT, ASIDE FROM THE SCHOOLS IN THE COMMONWEALTH OF PUERTO
RICO, THERE ARE NO PUBLIC OR PAROCHIAL SCHOOLS IN THE TERRITORIAL
LIMITS OF THE UNITED STATES IN WHICH THE PREDOMINANT LANGUAGE OF
INSTRUCTION IS OTHER THAN ENGLISH AND WHICH WOULD HAVE GENERALLY BEEN
ATTENDED BY PERSONS WHO ARE OTHERWISE QUALIFIED TO VOTE SAVE FOR THEIR
LACK OF LITERACY IN ENGLISH. 

FN4  SECTION 14(B) PROVIDES, IN PERTINENT PART: 

"NO COURT OTHER THAN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
...  SHALL HAVE JURISDICTION TO ISSUE  ...  ANY RESTRAINING ORDER OR
TEMPORARY OR PERMANENT INJUNCTION AGAINST THE  ... ENFORCEMENT OF ANY
PROVISION OF THIS ACT OR ANY ACTION OF ANY FEDERAL OFFICER OR EMPLOYEE
PURSUANT HERETO."  79 STAT. 445, 42 U.S.C. SEC 1973LB) (1964 ED., SUPP.
I). 

THE ATTORNEY GENERAL OF THE UNITED STATES WAS INITIALLY NAMED AS THE
SOLE DEFENDANT.  THE NEW YORK CITY BOARD OF ELECTIONS WAS JOINED AS A
DEFENDANT AFTER IT PUBLICLY ANNOUNCED ITS INTENTION TO COMPLY WITH SEC
4(E); IT HAS TAKEN THE POSITION IN THESE PROCEEDINGS THAT SEC 4(E) IS A
PROPER EXERCISE OF CONGRESSIONAL POWER.  THE ATTORNEY GENERAL OF THE
STATE OF NEW YORK HAS PARTICIPATED AS AMICUS CURIAE IN THE PROCEEDINGS
BELOW AND IN THIS COURT, URGING SEC 4(E) BE DECLARED UNCONSTITUTIONAL. 
THE UNITED STATES WAS GRANTED LEAVE TO INTERVENE AS A DEFENDANT, 28
U.S.C. SEC 2403 (1964 ED.); FED. RULE CIV.  PROC. 24(A). 

FN5  "SECTION 5.  THE CONGRESS SHALL HAVE POWER TO ENFORCE, BY
APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS ARTICLE." 

IT IS THEREFORE UNNECESSARY FOR US TO CONSIDER WHETHER SEC 4(E) COULD
BE SUSTAINED AS AN EXERCISE OF POWER UNDER THE TERRITORIAL CLAUSE, ART.
IV, SEC 3; SEE DISSENTING OPINION OF JUDGE MCGOWAN BELOW, 247 F. SUPP.,
AT 204; OR AS A MEASURE TO DISCHARGE CERTAIN TREATY OBLIGATIONS OF THE
UNITED STATES, SEE TREATY OF PARIS OF 1898, 30 STAT.  1754, 1759;
UNITED NATIONS CHARTER, ARTICLES 55 AND 56; ART. I, SEC 8, CL. 18.  NOR
NEED WE CONSIDER WHETHER SEC 4(E) COULD BE SUSTAINED INSOFAR AS IT
RELATES TO THE ELECTION OF FEDERAL OFFICERS AS AN EXERCISE OF
CONGRESSIONAL POWER UNDER ART. I, SEC 4, SEE MINOR V. HAPPERSETT, 21
WALL.  162, 171; UNITED STATES V. CLASSIC, 313 U.S. 299, 315; LITERACY
TESTS AND VOTER REQUIREMENTS IN FEDERAL AND STATE ELECTIONS, HEARINGS
BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE
COMMITTEE ON THE JUDICIARY ON S. 480, S. 2750, AND S. 2979, 87TH CONG.,
2D SESS., 302, 306-311 (1962)(BRIEF OF THE ATTORNEY GENERAL); NOR
WHETHER SEC 4(E) COULD BE SUSTAINED, INSOFAR AS IT RELATES TO THE
ELECTION OF STATE OFFICERS, AS AN EXERCISE OF CONGRESSIONAL POWER TO
ENFORCE THE CLAUSE GUARANTEEING TO EACH STATE A REPUBLICAN FORM OF
GOVERNMENT, ART. IV, SEC 4: ART. I, SEC 8, CL. 18. 

FN6  HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663; CARRINGTON
V. RASH, 380 U.S. 89.  SEE ALSO UNITED STATES V. MISSISSIPPI, 380 U.S.
128; LOUISIANA V. UNITED STATES, 380 U.S. 145, 151; LASSITER V.
NORTHAMPTON ELECTION BD., 360 U.S. 45; POPE V. WILLIAMS, 193 U.S. 621,
632-634; MINOR V. HAPPERSETT, 21 WALL.  162; CF. BURNS V. RICHARDSON,
ANTE, P. 73, AT 92; REYNOLDS V. SIMS, 377 U.S. 533. 

FN7  FOR THE HISTORICAL EVIDENCE SUGGESTING THAT THE SPONSORS AND
SUPPORTERS OF THE AMENDMENT WERE PRIMARILY INTERESTED IN AUGMENTING THE
POWER OF CONGRESS, RATHER THAN THE JUDICIARY, SEE GENERALLY FRANTZ,
CONGRESSIONAL POWER TO ENFORCE THE FOURTEENTH AMENDMENT AGAINST PRIVATE
ACTS, 73 YALE L.J. 1353, 1356-1357; HARRIS, THE QUEST FOR EQUALITY, 33
56 (1960); TENBROEK, THE ANTISLAVERY ORIGINS OF THE FOURTEENTH
AMENDMENT 187-217 (1951). 

FN8  SENATOR HOWARD, IN INTRODUCING THE PROPOSED AMENDMENT TO THE
SENATE, DESCRIBED SEC 5 AS "A DIRECT AFFIRMATIVE DELEGATION OF POWER TO
CONGRESS," AND ADDED: 

"IT CASTS UPON CONGRESS THE RESPONSIBILITY OF SEEING TO IT, FOR THE
FUTURE, THAT ALL THE SECTIONS OF THE AMENDMENT ARE CARRIED OUT IN GOOD
FAITH, AND THAT NO STATUTE INFRINGES THE RIGHTS OF PERSONS OR
PROPERTY.  I LOOK UPON THIS CLAUSE AS INDISPENSABLE FOR THE REASON THAT
IT THUS IMPOSES UPON CONGRESS THIS POWER AND THIS DUTY.  IT ENABLES
CONGRESS, IN CASE THE STATES SHALL ENACT LAWS IN CONFLICT WITH THE
PRINCIPLES OF THE AMENDMENT, TO CORRECT THAT LEGISLATION BY A FORMAL
CONGRESSIONAL ENACTMENT."  CONG. GLOBE, 39TH CONG., 1ST SESS., 2766,
2768 (1866).    THIS STATEMENT OF SEC 5'S PURPOSE WAS NOT QUESTIONED BY
ANYONE IN THE COURSE OF THE DEBATE.  FLACK, THE ADOPTION OF THE
FOURTEENTH AMENDMENT 138 (1908). 

FN9  IN FACT, EARLIER DRAFTS OF THE PROPOSED AMENDMENT EMPLOYED THE
"NECESSARY AND PROPER" TERMINOLOGY TO DESCRIBE THE SCOPE OF
CONGRESSIONAL POWER UNDER THE AMENDMENT.  SEE TENBROEK, THE ANTISLAVERY
ORIGINS OF THE FOURTEENTH AMENDMENT 187-190 (1951).  THE SUBSTITUTION
OF THE "APPROPRIATE LEGISLATION" FORMULA WAS NEVER THOUGHT TO HAVE THE
EFFECT OF DIMINISHING THE SCOPE OF THIS CONGRESSIONAL POWER.  SEE,
E.G., CONG. GLOBE, 42D CONG., 1ST SESS., APP.  83 (REPRESENTATIVE
BINGHAM, A PRINCIPAL DRAFTSMAN OF THE AMENDMENT AND THE EARLIER
PROPOSALS). 

FN10  CONTRARY TO THE SUGGESTION OF THE DISSENT, POST, P. 668, SEC 5
DOES NOT GRANT CONGRESS POWER TO EXERCISE DISCRETION IN THE OTHER
DIRECTION AND TO ENACT "STATUTES SO AS IN EFFECT TO DILUTE EQUAL
PROTECTION AND DUE PROCESS DECISIONS OF THIS COURT."  WE EMPHASIZE THAT
CONGRESS' POWER UNDER SEC 5 IS LIMITED TO ADOPTING MEASURES TO ENFORCE
THE GUARANTEES OF THE AMENDMENT; SEC 5 GRANTS CONGRESS NO POWER TO
RESTRICT, ABROGATE, OR DILUTE THESE GUARANTEES.  THUS, FOR EXAMPLE, AN
ENACTMENT AUTHORIZING THE STATES TO ESTABLISH RACIALLY SEGREGATED
SYSTEMS OF EDUCATION WOULD NOT BE - AS REQUIRED BY SEC 5 - A MEASURE
"TO ENFORCE" THE EQUAL PROTECTION CLAUSE SINCE THAT CLAUSE OF ITS OWN
FORCE PROHIBITS SUCH STATE LAWS. 

FN11  CF. JAMES EVERARD'S BREWERIES V. DAY, SUPRA, WHICH HELD THAT,
UNDER THE ENFORCEMENT CLAUSE OF THE EIGHTEENTH AMENDMENT, CONGRESS
COULD PROHIBIT THE PRESCRIPTION OF INTOXICATING MALT LIQUOR FOR
MEDICINAL PURPOSES EVEN THOUGH THE AMENDMENT ITSELF ONLY PROHIBITED THE
MANUFACTURE AND SALE OF INTOXICATING LIQUORS FOR BEVERAGE PURPOSES. 
CF. ALSO THE SETTLED PRINCIPLE APPLIED IN THE SHREVEPORT CASE (HOUSTON,
E.&W.T.R. CO. V. UNITED STATES, 234 U.S. 342), AND EXPRESSED IN UNITED
STATES V. DARBY, 312 U.S. 100, 118, THAT THE POWER OF CONGRESS TO
REGULATE 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  ...  ."  ACCORD, ATLANTA MOTEL V.
UNITED STATES, 379 U.S. 241, 258. 

FN12  SEE, E.G., 111 CONG. REC. 11061-11062, 11065-11066, 16240;
LITERACY TESTS AND VOTER REQUIREMENTS IN FEDERAL AND STATE ELECTIONS,
SENATE HEARINGS, N. 5, SUPRA, 507-508. 

FN13  THE PRINCIPAL EXEMPTION COMPLAINED OF IS THAT FOR PERSONS WHO
HAD BEEN ELIGIBLE TO VOTE BEFORE JANUARY 1, 1922.  SEE N. 2, SUPRA. 

FN14  THIS EVIDENCE CONSISTS IN PART OF STATEMENTS MADE IN THE
CONSTITUTIONAL CONVENTION FIRST CONSIDERING THE ENGLISH LITERACY
REQUIREMENT, SUCH AS THE FOLLOWING MADE BY THE SPONSOR OF THE MEASURE: 

"MORE PRECIOUS EVEN THAN THE FORMS OF GOVERNMENT ARE THE MENTAL
QUALITIES OF OUR RACE.  WHILE THOSE STAND UNIMPAIRED, ALL IS SAFE. 
THEY ARE EXPOSED TO A SINGLE DANGER, AND THAT IS THAT BY CONSTANTLY
CHANGING OUR VOTING CITIZENSHIP THROUGH THE WHOLESALE, BUT VALUABLE AND
NECESSARY INFUSION OF SOUTHERN AND EASTERN EUROPEAN RACES ...  .  THE
DANGER HAS BEGUN  ...  .  WE SHOULD CHECK IT."  III NEW YORK STATE
CONSTITUTIONAL CONVENTION 3012 (REV. RECORD 1916). 

SEE ALSO ID., AT 3015-3017, 3021-3055.  THIS EVIDENCE WAS REINFORCED
BY AN UNDERSTANDING OF THE CULTURAL MILIEU AT THE TIME OF PROPOSAL AND
ENACTMENT, SPANNING A PERIOD FROM 1915 TO 1921 - NOT ONE OF THE
ENLIGHTENED ERAS OF OUR HISTORY.  SEE GENERALLY CHAFEE, FREE SPEECH IN
THE UNITED STATES 102, 237, 269-282 (1954 ED.).  CONGRESS WAS AWARE OF
THIS EVIDENCE.  SEE, E.G., LITERACY TESTS AND VOTER REQUIREMENTS IN
FEDERAL AND STATE ELECTIONS, SENATE HEARINGS, N. 5, SUPRA, 507-513;
VOTING RIGHTS, HOUSE HEARINGS, N. 3, SUPRA, 508-513. 

FN15  OTHER STATES HAVE FOUND WAYS OF ASSURING AN INTELLIGENT
EXERCISE OF THE FRANCHISE SHORT OF TOTAL DISENFRANCHISEMENT OF PERSONS
NOT LITERATE IN ENGLISH.  FOR EXAMPLE, IN HAWAII, WHERE LITERACY IN
EITHER ENGLISH OR HAWAIIAN SUFFICES, CANDIDATES' NAMES MAY BE PRINTED
IN BOTH LANGUAGES, HAWAII REV. LAWS SEC 11-38 (1963 SUPP.); NEW YORK
ITSELF ALREADY PROVIDES ASSISTANCE FOR THOSE EXEMPT FROM THE LITERACY
REQUIREMENT AND ARE LITERATE IN NO LANGUAGE, N.Y. ELECTION LAW SEC 169;
AND, OF COURSE, THE PROBLEM OF ASSURING THE INTELLIGENT EXERCISE OF THE
FRANCHISE HAS BEEN MET BY THOSE STATES, MORE THAN 30 IN NUMBER, THAT
HAVE NO LITERACY REQUIREMENT AT ALL, SEE E.G., FLA. STAT. ANN.  SECS
97.061, 101.061 (1960)(FORM OF PERSONAL ASSISTANCE); NEW MEXICO STAT.
ANN. SECS 3-2-11, 3-3-13 (PERSONAL ASSISTANCE FOR THOSE LITERATE IN NO
LANGUAGE), SECS 3-3-7, 3-3-12, 3-2-41 (1953)(BALLOTS AND INSTRUCTIONS
AUTHORIZED TO BE PRINTED IN ENGLISH OR SPANISH).  SECTION 4(E) DOES NOT
PRECLUDE RESORT TO THESE ALTERNATIVE METHODS OF ASSURING THE
INTELLIGENT EXERCISE OF THE FRANCHISE.  TRUE, THE STATUTE PRECLUDES,
FOR A CERTAIN CLASS, DISENFRANCHISEMENT AND THUS LIMITS THE STATES'
CHOICE OF MEANS OF SATISFYING A PURPORTED STATE INTEREST.  BUT OUR
CASES HAVE HELD THAT THE STATES CAN BE REQUIRED TO TAILOR CAREFULLY THE
MEANS OF SATISFYING A LEGITIMATE STATE INTEREST WHEN FUNDAMENTAL
LIBERTIES AND RIGHTS ARE THREATENED, SEE, E.G., CARRINGTON V. RASH, 380
U.S. 89, 96; HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663, 670;
THOMAS V. COLLINS, 323 U.S. 516, 529-530; THORNHILL V. ALABAMA, 310
U.S. 88, 95-96; UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144,
152-153, N. 4; MEYER V. NEBRASKA, 262 U.S. 390; AND CONGRESS IS FREE TO
APPLY THE SAME PRINCIPLE IN THE EXERCISE OF ITS POWERS. 

FN16  SEE, E.G., 111 CONG. REC. 11060-11061, 15666, 16235.  THE
RECORD IN THIS CASE INCLUDES AFFIDAVITS DESCRIBING THE NATURE OF NEW
YORK'S TWO MAJOR SPANISH-LANGUAGE NEWSPAPERS, ONE DAILY AND ONE WEEKLY,
AND ITS THREE FULL-TIME SPANISH-LANGUAGE RADIO STATIONS AND AFFIDAVITS
FROM THOSE WHO HAVE CAMPAIGNED IN SPANISH-SPEAKING AREAS. 

FN17  SEE, E.G., 111 CONG. REC. 11061 (SENATOR LONG OF LOUISIANA AND
SENATOR YOUNG), 11064 (SENATOR HOLLAND), DRAWING ON THEIR EXPERIENCE
WITH VOTERS LITERATE IN A LANGUAGE OTHER THAN ENGLISH.  SEE ALSO AN
AFFIDAVIT FROM REPRESENTATIVE WILLIS OF LOUISIANA EXPRESSING THE VIEW
THAT ON THE BASIS OF HIS THIRTY YEARS' PERSONAL EXPERIENCE IN POLITICS
HE HAS "FORMED A DEFINITE OPINION THAT FRENCH-SPEAKING VOTERS WHO ARE
ILLERATE IN ENGLISH GENERALLY HAVE AS CLEAR A GRASP OF THE ISSUES AND
AN UNDERSTANDING OF THE CANDIDATES, AS DO PEOPLE WHO READ AND WRITE THE
ENGLISH LANGUAGE." 

FN18  SEE, E.G., 111 CONG. REC. 11060-11061. 

FN19  SEE MAGRUDER, THE COMMONWEALTH STATUS OF PUERTO RICO, 15 U.
PITT.  L. REV.  1 (1953). 

FN20  SEE, E.G., 111 CONG. REC. 11060-11061, 11066, 11073, 16235.  SEE
OSUNA, A HISTORY OF EDUCATION IN PUERTO RICO (1949). 

FN21  SEE, E.G., 111 CONG. REC. 16235; VOTING RIGHTS, HOUSE HEARINGS,
N. 3, SUPRA, 362.  SEE ALSO JONES ACT OF 1917, 39 STAT. 953, CONFERRING
UNITED STATES CITIZENSHIP ON ALL CITIZENS OF PUERTO RICO. 

MR. JUSTICE DOUGLAS JOINS THE COURT'S OPINION EXCEPT FOR THE
DISCUSSION, AT PP. 656-658, OF THE QUESTION WHETHER THE CONGRESSIONAL
REMEDIES ADOPTED IN SEC 4(E) CONSTITUTE MEANS WHICH ARE NOT PROHIBITED
BY, BUT ARE CONSISTENT WITH "THE LETTER AND SPIRIT OF THE
CONSTITUTION."  ON THAT QUESTION, HE RESERVES JUDGMENT UNTIL SUCH TIME
AS IT IS PRESENTED BY A MEMBER OF THE CLASS AGAINST WHICH THAT
PARTICULAR DISCRIMINATION IS DIRECTED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING.* 

*THIS OPINION APPLIES ALSO TO CARDONA V. POWER, POST, P. 672. 

WORTHY AS ITS PURPOSES MAY BE THOUGHT BY MANY, I DO NOT SEE HOW SEC
4(E) OF THE VOTING RIGHTS ACT OF 1965, 79 STAT. 439, 42 U.S.C. SEC
1973BE) (1964 ED. SUPP. I), CAN BE SUSTAINED EXCEPT AT THE SACRIFICE OF
FUNDAMENTALS IN THE AMERICAN CONSTITUTIONAL SYSTEM - THE SEPARATION
BETWEEN THE LEGISLATIVE AND JUDICIAL FUNCTION AND THE BOUNDARIES
BETWEEN FEDERAL AND STATE POLITICAL AUTHORITY.  BY THE SAME TOKEN I
THINK THAT THE VALIDITY OF NEW YORK'S LITERACY TEST, A QUESTION WHICH
THE COURT CONSIDERS ONLY IN THE CONTEXT OF THE FEDERAL STATUTE, MUST BE
UPHELD.  IT WILL CONDUCE TO ANALYTICAL CLARITY IF I DISCUSS THE SECOND
ISSUE FIRST. 

      I.

                           THE CARDONA CASE (NO. 673). 

THIS CASE PRESENTS A STRAIGHTFORWARD EQUAL PROTECTION PROBLEM. 
APPELLANT, A RESIDENT AND CITIZEN OF NEW YORK, SOUGHT TO REGISTER TO
VOTE BUT WAS REFUSED REGISTRATION BECAUSE SHE FAILED TO MEET THE NEW
YORK ENGLISH LITERACY QUALIFICATION RESPECTING ELIGIBILITY FOR THE
FRANCHISE.  (FN1)  SHE MAINTAINED THAT ALTHOUGH SHE COULD NOT READ OR
WRITE ENGLISH, SHE HAD BEEN BORN AND EDUCATED IN PUERTO RICO AND WAS
LITERATE IN SPANISH.  SHE ALLEGES THAT NEW YORK'S STATUTE REQUIRING
SATISFACTION OF AN ENGLISH LITERACY TEST IS AN ARBITRARY AND IRRATIONAL
CLASSIFICATION THAT VIOLATES THE EQUAL PROTECTION CLAUSE AT LEAST AS
APPLIED TO SOMEONE WHO, LIKE HERSELF, IS LITERATE IN SPANISH. 

ANY ANALYSIS OF THIS PROBLEM MUST BEGIN WITH THE ESTABLISHED RULE OF
LAW THAT THE FRANCHISE IS ESSENTIALLY A MATTER OF STATE CONCERN, MINOR
V. HAPPERSETT, 21 WALL.  162; LASSITER V. NORTHAMPTON ELECTION BD., 360
U.S. 45, SUBJECT ONLY TO THE OVERRIDING REQUIREMENTS OF VARIOUS FEDERAL
CONSTITUTIONAL PROVISIONS DEALING WITH THE FRANCHISE, E.G., THE
FIFTEENTH, SEVENTEENTH, NINETEENTH, AND TWENTY-FOURTH AMENDMENTS,
(FN2) AND, AS MORE RECENTLY DECIDED, TO THE GENERAL PRINCIPLES OF THE
FOURTEENTH AMENDMENT.  REYNOLDS V. SIMS, 377 U.S. 533; CARRINGTON V.
RASH, 380 U.S. 89. 

THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, WHICH ALONE
CONCERNS US HERE, FORBIDS A STATE FROM ARBITRARILY DISCRIMINATING AMONG
DIFFERENT CLASSES OF PERSONS.  OF COURSE IT HAS ALWAYS BEEN RECOGNIZED
THAT NEARLY ALL LEGISLATION INVOLVES SOME SORT OF CLASSIFICATION, AND
THE EQUAL PROTECTION TEST APPLIED BY THIS COURT IS A NARROW ONE:  A
STATE ENACTMENT OR PRACTICE MAY BE STRUCK DOWN UNDER THE CLAUSE ONLY IF
IT CANNOT BE JUSTIFIED AS FOUNDED UPON A RATIONAL AND PERMISSIBLE STATE
POLICY.  SEE, E.G., POWELL V. PENNSYLVANIA, 127 U.S. 678; LINDSLEY V.
NATURAL CARBONIC GAS CO., 220 U.S. 61; WALTERS V. CITY OF ST. LOUIS,
347 U.S. 231. 

IT IS SUGGESTED THAT A DIFFERENT AND BROADER EQUAL PROTECTION
STANDARD APPLIES IN CASES WHERE "FUNDAMENTAL LIBERTIES AND RIGHTS ARE
THREATENED," SEE ANTE, P. 655, NOTE 15; DISSENTING OPINION OF DOUGLAS,
J., IN CARDONA, POST, PP. 676-677, WHICH WOULD REQUIRE A STATE TO SHOW
A NEED GREATER THAN MERE RATIONAL POLICY TO JUSTIFY CLASSIFICATIONS IN
THIS AREA.  NO SUCH DUAL-LEVEL TEST HAS EVER BEEN ARTICULATED BY THIS
COURT, AND I DO NOT BELIEVE THAT ANY SUCH APPROACH IS CONSISTENT WITH
THE PURPOSES OF THE EQUAL PROTECTION CLAUSE, WITH THE OVERWHELMING
WEIGHT OF AUTHORITY, OR WITH WELL-ESTABLISHED PRINCIPLES OF FEDERALISM
WHICH UNDERLIE THE EQUAL PROTECTION CLAUSE. 

THUS FOR ME, APPLYING THE BASIC EQUAL PROTECTION STANDARD, THE ISSUE
IN THIS CASE IS WHETHER NEW YORK HAS SHOWN THAT ITS ENGLISH-LANGUAGE
LITERACY TEST IS REASONABLY DESIGNED TO SERVE A LEGITIMATE STATE
INTEREST.  I THINK THAT IT HAS. 

IN 1959, IN LASSITER V. NORTHAMPTON ELECTION BD., SUPRA, THIS COURT
DEALT WITH SUBSTANTIALLY THE SAME QUESTION AND RESOLVED IT UNANIMOUSLY
IN FAVOR OF THE LEGITIMACY OF A STATE LITERACY QUALIFICATION.  THERE A
NORTH CAROLINA ENGLISH LITERACY TEST WAS CHALLENGED.  WE HELD THAT
THERE WAS "WIDE SCOPE" FOR STATE QUALIFICATIONS OF THIS SORT.  360
U.S., AT 51.  DEALING WITH LITERACY TESTS GENERALLY, THE COURT THERE
HELD: 

"THE ABILITY TO READ AND WRITE  ...  HAS SOME RELATION TO STANDARDS
DESIGNED TO PROMOTE INTELLIGENT USE OF THE BALLOT  ...  .  LITERACY AND
INTELLIGENCE ARE OBVIOUSLY NOT SYNONYMOUS.  ILLITERATE PEOPLE MAY BE
INTELLIGENT VOTERS.  YET IN OUR SOCIETY WHERE NEWSPAPERS, PERIODICALS,
BOOKS, AND OTHER PRINTED MATTER CANVASS AND DEBATE CAMPAIGN ISSUES, A
STATE MIGHT CONCLUDE THAT ONLY THOSE WHO ARE LITERATE SHOULD EXERCISE
THE FRANCHISE  ...  .  IT WAS SAID LAST CENTURY IN MASSACHUSETTS THAT A
LITERACY TEST WAS DESIGNED TO INSURE AN 'INDEPENDENT AND INTELLIGENT'
EXERCISE OF THE RIGHT OF SUFFRAGE.  STONE V. SMITH, 159 MASS. 413-414,
34 N.E. 521.  NORTH CAROLINA AGREES.  WE DO NOT SIT IN JUDGMENT ON THE
WISDOM OF THAT POLICY.  WE CANNOT SAY, HOWEVER, THAT IT IS NOT AN
ALLOWABLE ONE MEASURED BY CONSTITUTIONAL STANDARDS."  360 U.S., AT 51
53. 

I BELIEVE THE SAME INTERESTS RECOUNTED IN LASSITER INDUBITABLY POINT
TOWARD UPHOLDING THE RATIONALITY OF THE NEW YORK VOTING TEST.  IT IS
TRUE THAT THE ISSUE HERE IS NOT SO SIMPLY DRAWN BETWEEN LITERACY PER SE
AND ILLITERACY.  APPELLANT ALLEGES THAT SHE IS LITERATE IN SPANISH, AND
THAT SHE STUDIED AMERICAN HISTORY AND GOVERNMENT IN UNITED STATES
SPANISH-SPEAKING SCHOOLS IN PUERTO RICO.  SHE ALLEGES FURTHER THAT SHE
IS "A REGULAR READER OF THE NEW YORK CITY SPANISH-LANGUAGE DAILY
NEWSPAPERS AND OTHER PERIODICALS, WHICH  ...  PROVIDE PROPORTIONATELY
MORE COVERAGE OF GOVERNMENT AND POLITICS THAN DO MOST ENGLISH-LANGUAGE
NEWSPAPERS," AND THAT SHE LISTENS TO SPANISH-LANGUAGE RADIO BROADCASTS
IN NEW YORK WHICH PROVIDE FULL TREATMENT OF GOVERNMENTAL AND POLITICAL
NEWS.  IT IS THUS MAINTAINED THAT WHATEVER MAY BE THE VALIDITY OF
LITERACY TESTS PER SE AS A CONDITION OF VOTING, APPLICATION OF SUCH A
TEST TO ONE LITERATE IN SPANISH, IN THE CONTEXT OF THE LARGE AND
POLITICALLY SIGNIFICANT SPANISH-SPEAKING COMMUNITY IN NEW YORK, SERVES
NO LEGITIMATE STATE INTEREST, AND IS THUS AN ARBITRARY CLASSIFICATION
THAT VIOLATES THE EQUAL PROTECTION CLAUSE.    ALTHOUGH TO BE SURE THERE
IS A DIFFERENCE BETWEEN A TOTALLY ILLERATE PERSON AND ONE WHO IS
LITERATE IN A FOREIGN TONGUE, I DO NOT BELIEVE THAT THIS ADDED FACTOR
VITIATES THE CONSTITUTIONALITY OF THE NEW YORK STATUTE.  ACCEPTING
APPELLANT'S ALLEGATIONS AS TRUE, IT IS NEVERTHELESS ALSO TRUE THAT THE
RANGE OF MATERIAL AVAILABLE TO A RESIDENT OF NEW YORK LITERATE ONLY IN
SPANISH IS MUCH MORE LIMITED THAN WHAT IS AVAILABLE TO AN ENGLISH
SPEAKING RESIDENT, THAT THE BUSINESS OF NATIONAL, STATE, AND LOCAL
GOVERNMENT IS CONDUCTED IN ENGLISH, AND THAT PROPOSITIONS, AMENDMENTS,
AND OFFICES FOR WHICH CANDIDATES ARE RUNNING LISTED ON THE BALLOT ARE
LIKEWISE IN ENGLISH.  IT IS ALSO TRUE THAT MOST CANDIDATES, CERTAINLY
THOSE CAMPAIGNING ON A NATIONAL OR STATEWIDE LEVEL, MAKE THEIR SPEECHES
IN ENGLISH.  NEW YORK MAY JUSTIFIABLY WANT ITS VOTERS TO BE ABLE TO
UNDERSTAND CANDIDATES DIRECTLY, RATHER THAN THROUGH POSSIBLY IMPRECISE
TRANSLATIONS OR SUMMARIES REPORTED IN A LIMITED NUMBER OF SPANISH NEWS
MEDIA.  IT IS NOTEWORTHY THAT THE FEDERAL GOVERNMENT REQUIRES LITERACY
IN ENGLISH AS A PREREQUISITE TO NATURALIZATION, 66 STAT.  239, 8 U.S.C.
SEC 1423 (1964 ED.), ATTESTING TO THE NATIONAL VIEW OF ITS IMPORTANCE
AS A PREREQUISITE TO FULL INTEGRATION INTO THE AMERICAN POLITICAL
COMMUNITY.  RELEVANT TOO IS THE FACT THAT THE NEW YORK ENGLISH TEST IS
NOT COMPLEX,  (FN3) THAT IT IS A FAIRLY ADMINISTERED,  (FN4) AND THAT
NEW YORK MAINTAINS FREE ADULT EDUCATION CLASSES WHICH APPELLANT AND
MEMBERS OF HER CLASS ARE ENCOURAGED TO ATTEND.  (FN5)  GIVEN THE
STATE'S LEGITIMATE CONCERN WITH PROMOTING AND SAFEGUARDING THE
INTELLIGENT USE OF THE BALLOT, AND GIVEN ALSO NEW YORK'S LONG
EXPERIENCE WITH THE PROCESS OF INTEGRATING NON-ENGLISH-SPEAKING
RESIDENTS INTO THE MAINSTREAM OF AMERICAN LIFE, I DO NOT SEE HOW IT CAN
BE SAID THAT THIS QUALIFICATION FOR SUFFRAGE IS UNCONSTITUTIONAL.  I
WOULD UPHOLD THE VALIDITY OF THE NEW YORK STATUTE, UNLESS THE FEDERAL
STATUTE PREVENTS THAT RESULT, THE QUESTION TO WHICH I NOW TURN. 

                                       II.

          THE MORGAN CASES (NOS. 847 AND 877). 

THESE CASES INVOLVE THE SAME NEW YORK SUFFRAGE RESTRICTION DISCUSSED
ABOVE, BUT THE CHALLENGE HERE COMES NOT IN THE FORM OF A SUIT TO ENJOIN
ENFORCEMENT OF THE STATE STATUTE, BUT IN A TEST OF THE
CONSTITUTIONALITY OF A FEDERAL ENACTMENT WHICH DECLARES THAT "TO SECURE
THE RIGHTS UNDER THE FOURTEENTH AMENDMENT OF PERSONS EDUCATED IN
AMERICAN-FLAG SCHOOLS IN WHICH THE PREDOMINANT CLASSROOM LANGUAGE WAS
OTHER THAN ENGLISH, IT IS NECESSARY TO PROHIBIT THE STATES FROM
CONDITIONING THE RIGHT TO VOTE OF SUCH PERSONS ON ABILITY TO READ,
WRITE, UNDERSTAND, OR INTERPRET ANY MATTER IN THE ENGLISH LANGUAGE." 
THAT ANYONE WHO HAS SUCCESSFULLY COMPLETED SIX GRADES OF SCHOOLING IN
AN "AMERICAN-FLAG" SCHOOL, IN WHICH THE PRIMARY LANGUAGE IS NOT
ENGLISH, SHALL NOT BE DENIED THE RIGHT TO VOTE BECAUSE OF AN INABILITY
TO SATISFY AN ENGLISH LITERACY TEST.  (FN6)  ALTHOUGH THE STATUTE IS
FRAMED IN GENERAL TERMS, SO FAR AS HAS BEEN SHOWN IT APPLIES IN ACTUAL
EFFECT ONLY TO CITIZENS OF PUERTO RICAN BACKGROUND, AND THE COURT SO
TREATS IT. 

THE PIVOTAL QUESTION IN THIS INSTANCE IS WHAT EFFECT THE ADDED FACTOR
OF A CONGRESSIONAL ENACTMENT HAS ON THE STRAIGHT EQUAL PROTECTION
ARGUMENT DEALT WITH ABOVE.  THE COURT DECLARES THAT SINCE SEC 5 OF THE
FOURTEENTH AMENDMENT (FN7) GIVES TO THE CONGRESS POWER TO "ENFORCE" THE
PROHIBITIONS OF THE AMENDMENT BY "APPROPRIATE" LEGISLATION, THE TEST
FOR JUDICIAL REVIEW OF ANY CONGRESSIONAL DETERMINATION IN THIS AREA IS
SIMPLY ONE OF RATIONALITY; THAT IS, IN EFFECT, WAS CONGRESS ACTING
RATIONALLY IN DECLARING THAT THE NEW YORK STATUTE IS IRRATIONAL? 
ALTHOUGH SEC 5 MOST CERTAINLY DOES GIVE TO THE CONGRESS WIDE POWERS IN
THE FIELD OF DEVISING REMEDIAL LEGISLATION TO EFFECTUATE THE
AMENDMENT'S PROHIBITION ON ARBITRARY STATE ACTION, EX PARTE VIRGINIA,
100 U.S. 339, I BELIEVE THE COURT HAS CONFUSED THE ISSUE OF HOW MUCH
ENFORCEMENT POWER CONGRESS POSSESSES UNDER SEC 5 WITH THE DISTINCT
ISSUE OF WHAT QUESTIONS ARE APPROPRIATE FOR CONGRESSIONAL DETERMINATION
AND WHAT QUESTIONS ARE ESSENTIALLY JUDICIAL IN NATURE. 

WHEN RECOGNIZED STATE VIOLATIONS OF FEDERAL CONSTITUTIONAL STANDARDS
HAVE OCCURRED, CONGRESS IS OF COURSE EMPOWERED BY SEC 5 TO TAKE
APPROPRIATE REMEDIAL MEASURES TO REDRESS AND PREVENT THE WRONGS.  SEE
STRAUDER V. WEST VIRGINIA, 100 U.S. 303, 310.  BUT IT IS A JUDICIAL
QUESTION WHETHER THE CONDITION WITH WHICH CONGRESS HAS THUS SOUGHT TO
DEAL IS IN TRUTH AN INFRINGEMENT OF THE CONSTITUTION, SOMETHING THAT IS
THE NECESSARY PREREQUISITE TO BRINGING THE SEC 5 POWER INTO PLAY AT
ALL.  THUS, IN EX PARTE VIRGINIA, SUPRA, INVOLVING A FEDERAL STATUTE
MAKING IT A FEDERAL CRIME TO DISQUALIFY ANYONE FROM JURY SERVICE
BECAUSE OF RACE, THE COURT FIRST HELD AS A MATTER OF CONSTITUTIONAL LAW
THAT "THE FOURTEENTH AMENDMENT SECURES, AMONG OTHER CIVIL RIGHTS, TO
COLORED MEN, WHEN CHARGED WITH CRIMINAL OFFENCES AGAINST A STATE, AN
IMPARTIAL JURY TRIAL, BY JURORS INDIFFERENTLY SELECTED OR CHOSEN
WITHOUT DISCRIMINATION AGAINST SUCH JURORS BECAUSE OF THEIR COLOR." 
100 U.S., AT 345.  ONLY THEN DID THE COURT HOLD THAT TO ENFORCE THIS
PROHIBITION UPON STATE DISCRIMINATION, CONGRESS COULD ENACT A CRIMINAL
STATUTE OF THE TYPE UNDER CONSIDERATION.  SEE ALSO CLYATT V. UNITED
STATES, 197 U.S. 207, SUSTAINING THE CONSTITUTIONALITY OF THE
ANTIPEONAGE LAWS, 14 STAT. 546, NOW 42 U.S.C. SEC 1994 (1964 ED.),
UNDER THE ENFORCEMENT CLAUSE OF THE THIRTEENTH AMENDMENT. 

A MORE RECENT FIFTEENTH AMENDMENT CASE ALSO SERVES TO ILLUSTRATE THIS
DISTINCTION.  IN SOUTH CAROLINA V. KATZENBACH, 383 U.S. 301, DECIDED
EARLIER THIS TERM, WE HELD CERTAIN REMEDIAL SECTIONS OF THE VOTING
RIGHTS ACT OF 1965 CONSTITUTIONAL UNDER THE FIFTEENTH AMENDMENT, WHICH
IS DIRECTED AGAINST DEPRIVATIONS OF THE RIGHT TO VOTE ON ACCOUNT OF
RACE.  IN ENACTING THOSE SECTIONS OF THE VOTING RIGHTS ACT THE CONGRESS
MADE A DETAILED INVESTIGATION OF VARIOUS STATE PRACTICES THAT HAD BEEN
USED TO DEPRIVE NEGROES OF THE FRANCHISE.  SEE 383 U.S., AT 308-315. 
IN PASSING UPON THE REMEDIAL PROVISIONS, WE REVIEWED FIRST THE
"VOLUMINOUS LEGISLATIVE HISTORY" AS WELL AS JUDICIAL PRECEDENTS
SUPPORTING THE BASIC CONGRESSIONAL FINDING THAT THE CLEAR COMMANDS OF
THE FIFTEENTH AMENDMENT HAD BEEN INFRINGED BY VARIOUS STATE
SUBTERFUGES.  SEE 383 U.S., AT 309, 329-330, 333-334.  GIVEN THE
EXISTENCE OF THE EVIL, WE HELD THE REMEDIAL STEPS TAKEN BY THE
LEGISLATURE UNDER THE ENFORCEMENT CLAUSE OF THE FIFTEENTH AMENDMENT TO
BE A JUSTIFIABLE EXERCISE OF CONGRESSIONAL INITIATIVE. 

CONGRESSIONAL ENACTMENT.  THE QUESTION HERE IS NOT WHETHER THE STATUTE
IS APPROPRIATE REMEDIAL LEGISLATION TO CURE AN ESTABLISHED VIOLATION OF
A CONSTITUTIONAL COMMAND, BUT WHETHER THERE HAS IN FACT BEEN AN
INFRINGEMENT OF THAT CONSTITUTIONAL COMMAND, THAT IS, WHETHER A
PARTICULAR STATE PRACTICE OR, AS HERE, A STATUTE IS SO ARBITRARY OR
IRRATIONAL AS TO OFFEND THE COMMAND OF THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  THAT QUESTION IS ONE FOR THE JUDICIAL BRANCH
ULTIMATELY TO DETERMINE.  WERE THE RULE OTHERWISE, CONGRESS WOULD BE
ABLE TO QUALIFY THIS COURT'S CONSTITUTIONAL DECISIONS UNDER THE
FOURTEENTH AND FIFTEENTH AMENDMENTS, LET ALONE THOSE UNDER OTHER
PROVISIONS OF THE CONSTITUTION, BY RESORTING TO CONGRESSIONAL POWER
UNDER THE NECESSARY AND PROPER CLAUSE.  IN VIEW OF THIS COURT'S HOLDING
IN LASSITER, SUPRA, THAT AN ENGLISH LITERACY TEST IS A PERMISSIBLE
EXERCISE OF STATE SUPERVISION OVER ITS FRANCHISE, I DO NOT THINK IT IS
OPEN TO CONGRESS TO LIMIT THE EFFECT OF THAT DECISION AS IT HAS
UNDERTAKEN TO DO BY SEC 4(E).  IN EFFECT THE COURT READS SEC 5 OF THE
FOURTEENTH AMENDMENT AS GIVING CONGRESS THE POWER TO DEFINE THE
SUBSTANTIVE SCOPE OF THE AMENDMENT.  IF THAT INDEED BE THE TRUE REACH
OF SEC 5, THEN I DO NOT SEE WHY CONGRESS SHOULD NOT BE ABLE AS WELL TO
EXERCISE ITS SEC 5 "DISCRETION" BY ENACTING STATUTES SO AS IN EFFECT TO
DILUTE EQUAL PROTECTION AND DUE PROCESS DECISIONS OF THIS COURT.  IN
ALL SUCH CASES THERE IS ROOM FOR REASONABLE MEN TO DIFFER AS TO WHETHER
OR NOT A DENIAL OF EQUAL PROTECTION OR DUE PROCESS HAS OCCURRED, AND
THE FINAL DECISION IS ONE OF JUDGMENT.  UNTIL TODAY THIS JUDGMENT HAS
ALWAYS BEEN ONE FOR THE JUDICIARY TO RESOLVE. 

I DO NOT MEAN TO SUGGEST IN WHAT HAS BEEN SAID THAT A LEGISLATIVE
JUDGMENT OF THE TYPE INCORPORATED IN SEC 4(E) IS WITHOUT ANY FORCE
WHATSOEVER.  DECISIONS ON QUESTIONS OF EQUAL PROTECTION AND DUE PROCESS
ARE BASED NOT ON ABSTRACT LOGIC, BUT ON EMPIRICAL FOUNDATIONS.  TO THE
EXTENT "LEGISLATIVE FACTS" ARE RELEVANT TO A JUDICIAL DETERMINATION,
CONGRESS IS WELL EQUIPPED TO INVESTIGATE THEM, AND SUCH DETERMINATIONS
ARE OF COURSE ENTITLED TO DUE RESPECT.  (FN8)  IN SOUTH CAROLINA V.
KATZENBACH, SUPRA, SUCH LEGISLATIVE FINDINGS WERE MADE TO SHOW THAT
RACIAL DISCRIMINATION IN VOTING WAS ACTUALLY OCCURRING.  SIMILARLY, IN
HEART OF ATLANTA MOTEL, INC. V. UNITED STATES, 379 U.S. 241, AND
KATZENBACH V. MCCLUNG, 379 U.S. 294, THIS COURT UPHELD TITLE II OF THE
CIVIL RIGHTS ACT OF 1964 UNDER THE COMMERCE CLAUSE.  THERE AGAIN THE
CONGRESSIONAL DETERMINATION THAT RACIAL DISCRIMINATION IN A CLEARLY
DEFINED GROUP OF PUBLIC ACCOMMODATIONS DID EFFECTIVELY IMPEDE
INTERSTATE COMMERCE WAS BASED ON "VOLUMINOUS TESTIMONY," 379 U.S., AT
253, WHICH HAD BEEN PUT BEFORE THE CONGRESS AND IN THE CONTEXT OF WHICH
IT PASSED REMEDIAL LEGISLATION. 

BUT NO SUCH FACTUAL DATA PROVIDE A LEGISLATIVE RECORD SUPPORTING SEC
4(E) (FN9) BY WAY OF SHOWING THAT SPANISH-SPEAKING CITIZENS ARE FULLY
AS CAPABLE OF MAKING INFORMED DECISIONS IN A NEW YORK ELECTION AS ARE
ENGLISH-SPEAKING CITIZENS.  NOR WAS THERE ANY SHOWING WHATEVER TO
SUPPORT THE COURT'S ALTERNATIVE ARGUMENT THAT SEC 4(E) SHOULD BE VIEWED
AS BUT A REMEDIAL MEASURE DESIGNED TO CURE OR ASSURE AGAINST
UNCONSTITUTIONAL DISCRIMINATION OF OTHER VARIETIES, E.G., IN "PUBLIC
SCHOOLS, PUBLIC HOUSING AND LAW ENFORCEMENT," ANTE, P. 652, TO WHICH
PUERTO RICAN MINORITIES MIGHT BE SUBJECT IN SUCH COMMUNITIES AS NEW
YORK.  THERE IS SIMPLY NO LEGISLATIVE RECORD SUPPORTING SUCH
HYPOTHESIZED DISCRIMINATION OF THE SORT WE HAVE HITHERTO INSISTED UPON
WHEN CONGRESSIONAL POWER IS BROUGHT TO BEAR ON CONSTITUTIONALLY
RESERVED STATE CONCERNS.  SEE HEART OF ATLANTA MOTEL, SUPRA; SOUTH
CAROLINA V. KATZENBACH, SUPRA. 

THUS, WE HAVE HERE NOT A MATTER OF GIVING DEFERENCE TO A
CONGRESSIONAL ESTIMATE, BASED ON ITS DETERMINATION OF LEGISLATIVE
FACTS, BEARING UPON THE VALIDITY VEL NON OF A STATUTE, BUT RATHER WHAT
CAN AT MOST BE CALLED A LEGISLATIVE ANNOUNCEMENT THAT CONGRESS BELIEVES
A STATE LAW TO ENTAIL AN UNCONSTITUTIONAL DEPRIVATION OF EQUAL
PROTECTION.  ALTHOUGH THIS KIND OF DECLARATION IS OF COURSE ENTITLED TO
THE MOST RESPECTFUL CONSIDERATION, COMING AS IT DOES FROM A CONCURRENT
BRANCH AND ONE THAT IS KNOWLEDGEABLE IN MATTERS OF POPULAR POLITICAL
PARTICIPATION, I DO NOT BELIEVE IT LESSENS OUR RESPONSIBILITY TO DECIDE
THE FUNDAMENTAL ISSUE OF WHETHER IN FACT THE STATE ENACTMENT VIOLATES
FEDERAL CONSTITUTIONAL RIGHTS. 

IN ASSESSING THE DEFERENCE WE SHOULD GIVE TO THIS KIND OF
CONGRESSIONAL EXPRESSION OF POLICY, IT IS RELEVANT THAT THE JUDICIARY
HAS ALWAYS GIVEN TO CONGRESSIONAL ENACTMENTS A PRESUMPTION OF
VALIDITY.  THE PROPELLER GENESEE CHIEF V. FITZHUGH, 12 HOW.  443, 457
458.  HOWEVER, IT IS ALSO A CANON OF JUDICIAL REVIEW THAT STATE
STATUTES ARE GIVEN A SIMILAR PRESUMPTION, BUTLER V. COMMONWEALTH, 10
HOW.  402, 415.  WHICHEVER WAY THIS CASE IS DECIDED, ONE STATUTE WILL
BE RENDERED INOPERATIVE IN WHOLE OR IN PART, AND ALTHOUGH IT HAS BEEN
SUGGESTED THAT THIS COURT SHOULD GIVE SOMEWHAT MORE DEFERENCE TO
CONGRESS THAN TO A STATE LEGISLATURE, (FN10) SUCH A SIMPLE WEIGHING OF
PRESUMPTIONS IS HARDLY A SATISFYING WAY OF RESOLVING A MATTER THAT
TOUCHES THE DISTRIBUTION OF STATE AND FEDERAL POWER IN AN AREA SO
SENSITIVE AS THAT OF THE REGULATION OF THE FRANCHISE.  RATHER IT SHOULD
BE RECOGNIZED THAT WHILE THE FOURTEENTH AMENDMENT IS A "BROODING
OMNIPRESENCE" OVER ALL STATE LEGISLATION, THE SUBSTANTIVE MATTERS WHICH
IT TOUCHES ARE ALL WITHIN THE PRIMARY LEGISLATIVE COMPETENCE OF THE
STATES.  FEDERAL AUTHORITY, LEGISLATIVE NO LESS THAN JUDICIAL, DOES NOT
INTRUDE UNLESS THERE HAS BEEN A DENIAL BY STATE ACTION OF FOURTEENTH
AMENDMENT LIMITATIONS, IN THIS INSTANCE A DENIAL OF EQUAL PROTECTION. 
AT LEAST IN THE AREA OF PRIMARY STATE CONCERN A STATE STATUTE THAT
PASSES CONSTITUTIONAL MUSTER UNDER THE JUDICIAL STANDARD OF RATIONALITY
SHOULD NOT BE PERMITTED TO BE SET AT NAUGHT BY A MERE CONTRARY
CONGRESSIONAL PRONOUNCEMENT UNSUPPORTED BY A LEGISLATIVE RECORD
JUSTIFYING THAT CONCLUSION. 

TO DENY THE EFFECTIVENESS OF THIS CONGRESSIONAL ENACTMENT IS NOT OF
COURSE TO DISPARAGE CONGRESS' EXERTION OF AUTHORITY IN THE FIELD OF
CIVIL RIGHTS; IT IS SIMPLY TO RECOGNIZE THAT THE LEGISLATIVE BRANCH
LIKE THE OTHER BRANCHES OF FEDERAL AUTHORITY IS SUBJECT TO THE
GOVERNMENTAL BOUNDARIES SET BY THE CONSTITUTION.  TO HOLD, ON THIS
RECORD, THAT SEC 4(E) OVERRIDES THE NEW YORK LITERACY REQUIREMENT SEEMS
TO ME TANTAMOUNT TO ALLOWING THE FOURTEENTH AMENDMENT TO SWALLOW THE
STATE'S CONSTITUTIONALLY ORDAINED PRIMARY AUTHORITY IN THIS FIELD.  FOR
IF CONGRESS BY WHAT, AS HERE, AMOUNTS TO MERE IPSE DIXIT CAN SET THAT
OTHERWISE PERMISSIBLE REQUIREMENT PARTIALLY AT NAUGHT I SEE NO REASON
WHY IT COULD NOT ALSO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE STATES IN
OTHER FIELDS OF THEIR EXCLUSIVE PRIMARY COMPETENCE AS WELL. 

I WOULD AFFIRM THE JUDGMENTS IN EACH OF THESE CASES.  (FN11) 

FN1  THE PERTINENT PORTIONS OF THE NEW YORK CONSTITUTION, ART. II,
SEC 1, AND STATUTORY PROVISIONS ARE REPRODUCED IN THE COURT'S OPINION,
ANTE, PP. 644-645, N. 2.    FN2  THE FIFTEENTH AMENDMENT FORBIDS DENIAL
OR ABRIDGMENT OF THE FRANCHISE "ON ACCOUNT OF RACE, COLOR, OR PREVIOUS
CONDITION OF SERVITUDE"; THE SEVENTEENTH DEALS WITH POPULAR ELECTION OF
MEMBERS OF THE SENATE; THE NINETEENTH PROVIDES FOR EQUAL SUFFRAGE FOR
WOMEN; THE TWENTY-FOURTH OUTLAWS THE POLL TAX AS A QUALIFICATION FOR
PARTICIPATION IN FEDERAL ELECTIONS. 

FN3  THE TEST IS DESCRIBED IN MCGOVNEY, THE AMERICAN SUFFRAGE MEDLEY
63 (1949) AS FOLLOWS:  "THE EXAMINATION IS BASED UPON PROSE
COMPOSITIONS OF ABOUT TEN LINES EACH, PREPARED BY THE PERSONNNEL OF THE
STATE DEPARTMENT OF EDUCATION, DESIGNED TO BE OF THE LEVEL OF READING
IN THE SIXTH GRADE  ...  .  THESE ARE UNIFORM FOR ANY SINGLE
EXAMINATION THROUGHOUT THE STATE.  THE EXAMINATION IS GIVEN BY SCHOOL
AUTHORITIES AND GRADED BY SCHOOL SUPERINTENDENTS OR TEACHERS UNDER
CAREFUL INSTRUCTIONS FROM THE CENTRAL AUTHORITY, TO SECURE UNIFORMITY
OF GRADING AS NEARLY AS IS POSSIBLE."  THE 1943 TEST, SUBMITTED BY THE
ATTORNEY GENERAL OF NEW YORK AS REPRESENTATIVE, IS REPRODUCED BELOW:

NEW YORK STATE REGENTS LITERACY TEST

(TO BE FILLED IN BY THE CANDIDATE IN INK) 

WRITE YOUR NAME HERE

                              FIRST NAME           MIDDLE INITIAL
  LAST NAME 

WRITE YOUR ADDRESS HERE 

WRITE THE DATE HERE

                              MONTH   DAY    YEAR

            READ THIS AND THEN WRITE THE ANSWERS TO THE QUESTIONS

                      READ IT AS MANY TIMES AS YOU NEED TO 

THE LEGISLATIVE BRANCH OF THE NATIONAL GOVERNMENT IS CALLED THE
CONGRESS OF THE UNITED STATES.  CONGRESS MAKES THE LAWS OF THE NATION. 
CONGRESS IS COMPOSED OF TWO HOUSES.  THE UPPER HOUSE IS CALLED THE
SENATE AND ITS MEMBERS ARE CALLED SENATORS.  THERE ARE 96 SENATORS IN
THE UPPER HOUSE, TWO FROM EACH STATE.  EACH UNITED STATES SENATOR IS
ELECTED FOR A TERM OF SIX YEARS.  THE LOWER HOUSE OF CONGRESS IS KNOWN
AS THE HOUSE OF REPRESENTATIVES.  THE NUMBER OF REPRESENTATIVES FROM
EACH STATE IS DETERMINED BY THE POPULATION OF THAT STATE.  AT PRESENT
THERE ARE 435 MEMBERS OF THE HOUSE OF REPRESENTATIVES.  EACH
REPRESENTATIVE IS ELECTED FOR A TERM OF TWO YEARS.  CONGRESS MEETS IN
THE CAPITOL AT WASHINGTON. 

THE ANSWERS TO THE FOLLOWING QUESTIONS ARE TO BE

               TAKEN FROM THE ABOVE PARAGRAPH: 

1  HOW MANY HOUSES ARE THERE IN CONGRESS? 

2  WHAT DOES CONGRESS DO? 

3  WHAT IS THE LOWER HOUSE OF CONGRESS CALLED? 

4  HOW MANY MEMBERS ARE THERE IN THE LOWER HOUSE? 

5  HOW LONG IS THE TERM OF OFFICE OF A UNITED STATES SENATOR? 

6  HOW MANY SENATORS ARE THERE FROM EACH STATE? 

7  FOR HOW LONG A PERIOD ARE MEMBERS OF THE HOUSE OF REPRESENTATIVES
ELECTED? 

8  IN WHAT CITY DOES CONGRESS MEET? 

FN4  THERE IS NO ALLEGATION OF DISCRIMINATORY ENFORCEMENT, AND THE
METHOD OF EXAMINATION, SEE N. 3, SUPRA, MAKES UNEQUAL APPLICATION
VIRTUALLY IMPOSSIBLE.  MCGOVNEY HAS NOTED, OP.  CIT. SUPRA, AT 62, THAT
"NEW YORK IS THE ONLY STATE IN THE UNION THAT BOTH HAS A REASONABLE
READING REQUIREMENT AND ADMINISTERS IT IN A MANNER THAT SECURES
UNIFORMITY OF APPLICATION THROUGHOUT THE STATE AND PRECLUDES
DISCRIMINATION, SO FAR AS IS HUMANLY POSSIBLE."  SEE CAMACHO V. ROGERS,
199 F. SUPP. 155, 159-160. 

FN5  SEE MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK ANN., EDUCATION LAW
SEC 4605.  SEE GENERALLY HANDBOOK OF ADULT EDUCATION IN THE UNITED
STATES 455-465 (KNOWLES ED. 1960). 

FN6  THE STATUTE MAKES AN EXCEPTION TO ITS SIXTH-GRADE RULE SO THAT
WHERE STATE LAW "PROVIDES THAT A DIFFERENT LEVEL OF EDUCATION IS
PRESUMPTIVE OF LITERACY," THE APPLICANT MUST SHOW THAT HE HAS COMPLETED
"AN EQUIVALENT LEVEL OF EDUCATION" IN THE FOREIGN-LANGUAGE UNITED
STATES SCHOOL. 

FN7  SECTION 5 OF THE FOURTEENTH AMENDMENT STATES THAT "THE CONGRESS
SHALL HAVE POWER TO ENFORCE, BY APPROPRIATE LEGISLATION, THE PROVISIONS
OF THIS ARTICLE." 

FN8  SEE GENERALLY KARST, LEGISLATIVE FACTS IN CONSTITUTIONAL
LITIGATION, 1960 THE SUPREME COURT REVIEW 75 (KURLAND ED.); ALFANGE,
THE RELEVANCE OF LEGISLATIVE FACTS IN CONSTITUTIONAL LAW, 114 U. PA. L.
REV. 637 (1966). 

FN9  THERE WERE NO COMMITTEE HEARINGS OR REPORTS REFERRING TO THIS
VOTING RIGHTS ACT.  SEE 111 CONG. REC.  11027, 15666, 16234. 

FN10  SEE THAYER, THE ORIGIN AND SCOPE OF THE AMERICAN DOCTRINE OF
CONSTITUTIONAL LAW, 7 HARV. L. REV. 129, 154-155 (1893). 

FN11  A NUMBER OF OTHER ARGUMENTS HAVE BEEN SUGGESTED TO SUSTAIN THE
CONSTITUTIONALITY OF SEC 4(E).  THESE ARE REFERRED TO IN THE COURT'S
OPINION, ANTE, PP. 646-647, N. 5.  SINCE ALL OF SUCH ARGUMENTS ARE
RENDERED SUPERFLUOUS BY THE COURT'S DECISION AND NONE OF THEM IS
CONSIDERED BY THE MAJORITY, I DEEM IT UNNECESSARY TO DEAL WITH THEM
SAVE TO SAY THAT IN MY OPINION NONE OF THOSE CONTENTIONS PROVIDES AN
ADEQUATE CONSTITUTIONAL BASIS FOR SUSTAINING THE STATUTE. 
..END :


















CARDONA V. POWER 384 U.S. 672 


NO. 673.  ARGUED APRIL 18, 1966.  - DECIDED JUNE 13, 1966.  - 16 N.Y.2D
639, 708, 827, 209 N.E.2D 119, 556, 210 N.E.2D 458, VACATED AND
REMANDED. 


APPELLANT, WHO HAS LIVED IN NEW YORK SINCE 1948, WAS BORN IN PUERTO
RICO AND EDUCATED THERE.  ALTHOUGH ABLE TO READ AND WRITE SPANISH SHE
COULD NOT SATISFY NEW YORK'S ENGLISH LITERACY REQUIREMENT AND WAS
THEREFORE REFUSED REGISTRATION BY THE BOARD OF ELECTIONS.  ALLEGING
THAT REQUIREMENT UNCONSTITUTIONAL, SHE BROUGHT SUIT IN A NEW YORK COURT
SEEKING AN ORDER DIRECTING THE BOARD TO REGISTER HER.  THE TRIAL COURT
DENIED APPELLANT RELIEF AND THE NEW YORK COURT OF APPEALS AFFIRMED. 
THEREAFTER CONGRESS ENACTED SEC 4(E) OF THE VOTING RIGHTS ACT OF 1965. 
SEE KATZENBACH V. MORGAN, ANTE, P. 641.  HELD:  THE JUDGMENT IS VACATED
AND THE CASE IS REMANDED TO THE NEW YORK COURT OF APPEALS FOR WHATEVER
PROCEEDINGS IT MAY DEEM APPROPRIATE.  P. 674. 

(A) IF APPELLANT COMPLETED THE SIXTH GRADE IN A PUBLIC SCHOOL OR AN
ACCREDITED PRIVATE SCHOOL IN PUERTO RICO, THIS CASE WOULD BE MOOT AS
SEC 4(E) WOULD PROVIDE THE RELIEF SHE SOUGHT.  P. 674. 

(B)  EVEN IF SEC 4(E) DID NOT SPECIFICALLY COVER APPELLANT, THE NEW
YORK COURTS SHOULD DETERMINE WHETHER THE NEW YORK ENGLISH LITERACY
REQUIREMENT REMAINS VALID IN LIGHT OF SEC 4(E).  P. 674. 

CARDONA V. POWER ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS ARGUED WITH KATZENBACH V. MORGAN, ANTE, P. 641, ALSO
DECIDED TODAY.  WE THERE SUSTAINED THE CONSTITUTIONALITY OF SEC 4(E) OF
THE VOTING RIGHTS ACT OF 1965, AND HELD THAT, BY FORCE OF THE SUPREMACY
CLAUSE AND AS PROVIDED IN SEC 4(E), THE STATE OF NEW YORK'S ENGLISH
LITERACY REQUIREMENT CANNOT BE ENFORCED AGAINST PERSONS WHO HAD
SUCCESSFULLY COMPLETED A SIXTH GRADE EDUCATION IN A PUBLIC SCHOOL IN,
OR A PRIVATE SCHOOL ACCREDITED BY, THE COMMONWEALTH OF PUERTO RICO IN
WHICH THE LANGUAGE OF INSTRUCTION WAS OTHER THAN ENGLISH.  IN THIS
CASE, WHICH WAS ADJUDICATED BY THE NEW YORK COURTS BEFORE THE ENACTMENT
OF SEC 4(E), APPELLANT UNSUCCESSFULLY SOUGHT A JUDICIAL DETERMINATION
THAT THE NEW YORK ENGLISH LITERACY REQUIREMENT, AS APPLIED TO DENY HER
THE RIGHT TO VOTE IN ALL ELECTIONS, VIOLATED THE FEDERAL CONSTITUTION. 

APPELLANT WAS BORN AND EDUCATED IN THE COMMONWEALTH OF PUERTO RICO
AND HAS LIVED IN NEW YORK CITY SINCE ABOUT 1948.  ON JULY 23, 1963, SHE
ATTEMPTED TO REGISTER TO VOTE, PRESENTING EVIDENCE OF UNITED STATES
CITIZENSHIP, HER AGE AND RESIDENCE; AND SHE REPRESENTED THAT ALTHOUGH
SHE WAS ABLE TO READ AND WRITE SPANISH, SHE COULD NOT SATISFY NEW
YORK'S ENGLISH LITERACY REQUIREMENT.  THE NEW YORK CITY BOARD OF
ELECTIONS REFUSED TO REGISTER HER AS A VOTER SOLELY ON THE GROUND THAT
SHE WAS NOT LITERATE IN ENGLISH.  APPELLANT THEN BROUGHT THIS
PROCEEDING IN STATE COURT AGAINST THE BOARD OF ELECTIONS AND ITS
MEMBERS.  SHE ALLEGED THAT THE NEW YORK ENGLISH LITERACY REQUIREMENT AS
APPLIED WAS INVALID UNDER THE FEDERAL CONSTITUTION AND SOUGHT AN ORDER
DIRECTING THE BOARD TO REGISTER HER AS A DULY QUALIFIED VOTER, OR, IN
THE ALTERNATIVE, DIRECTING THE BOARD TO ADMINISTER A LITERACY TEST IN
THE SPANISH LANGUAGE, AND, IF SHE PASSED THE TEST, TO REGISTER HER AS A
DULY QUALIFIED VOTER.  THE TRIAL COURT DENIED THE RELIEF PRAYED FOR AND
THE NEW YORK COURT OF APPEALS, THREE JUDGES DISSENTING, AFFIRMED.  16
N.Y.2D 639, 209 N.E.2D 119, REMITTITUR AMENDED, 16 N.Y.2D 708, 827, 209
N.E.2D 556, 210 N.E.2D 458.  WE NOTED PROBABLE JURISDICTION.  382 U.S.
1008. 

ALTHOUGH APPELLANT'S COMPLAINT ALLEGES THAT SHE ATTENDED A SCHOOL IN
PUERTO RICO, IT IS NOT ALLEGED THEREIN NOR HAVE WE BEEN CLEARLY
INFORMED IN ANY OTHER WAY WHETHER, AS REQUIRED BY SEC 4(E), SHE
SUCCESSFULLY COMPLETED THE SIXTH GRADE OF A PUBLIC SCHOOL IN, OR A
PRIVATE SCHOOL ACCREDITED BY, THE COMMONWEALTH.*  IF SHE HAD COMPLETED
THE SIXTH GRADE IN SUCH A SCHOOL, HER FAILURE TO SATISFY THE NEW YORK
ENGLISH LITERACY REQUIREMENT WOULD NO LONGER BE A BAR TO HER
REGISTRATION IN LIGHT OF OUR DECISION TODAY IN KATZENBACH V. MORGAN. 
THIS CASE MIGHT THEREFORE BE MOOT; APPELLANT WOULD NOT NEED ANY RELIEF
IF SEC 4(E) IN TERMS ACCOMPLISHED THE RESULT SHE SOUGHT.  CF., E.G.,
DINSMORE V. SOUTHERN EXPRESS CO., 183 U.S. 115, 119-120.  MOREOVER,
EVEN IF APPELLANT WERE NOT SPECIFICALLY COVERED BY SEC 4(E), THE NEW
YORK COURTS SHOULD IN THE FIRST INSTANCE DETERMINE WHETHER IN LIGHT OF
THIS FEDERAL ENACTMENT, THOSE APPLICATIONS OF THE NEW YORK ENGLISH
LITERACY REQUIREMENT NOT IN TERMS PROHIBITED BY SEC 4(E) HAVE
CONTINUING VALIDITY.  WE THEREFORE VACATE THE JUDGMENT, WITHOUT COSTS
TO EITHER PARTY IN THIS COURT, AND REMAND THE CAUSE TO THE COURT OF
APPEALS OF NEW YORK FOR SUCH FURTHER PROCEEDINGS AS IT MAY DEEM
APPROPRIATE.  IT IS SO ORDERED. 

*PRESUMABLY THE PREDOMINANT CLASSROOM LANGUAGE OF THE SCHOOL SHE
ATTENDED WAS OTHER THAN ENGLISH, AND THUS THAT ELEMENT OF SEC 4(E) IS
SATISFIED.  IF THE PREDOMINANT CLASSROOM LANGUAGE HAD BEEN ENGLISH, AND
IF SHE HAD SUCCESSFULLY COMPLETED THE SIXTH GRADE, THEN SHE WOULD BE
ENTITLED TO VOTE UNDER SEC 168 OF THE NEW YORK ELECTION LAW.  SEE N. 2,
IN KATZENBACH V. MORGAN, ANTE. 

(FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 659.) 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE FORTAS CONCURS,
DISSENTING. 

APPELLANT IS AN AMERICAN OF SPANISH ANCESTRY, LITERATE IN THE SPANISH
LANGUAGE BUT ILLITERATE IN ENGLISH AND HENCE BARRED FROM VOTING BY NEW
YORK'S STATUTE. 

I DOUBT THAT LITERACY IS A WISE PREREQUISITE FOR EXERCISE OF THE
FRANCHISE.  LITERACY AND INTELLIGENCE ARE NOT SYNONYMOUS.  THE
EXPERIENCE OF NATIONS  (FN1) LIKE INDIA, WHERE ILLITERATE PERSONS HAVE
RETURNED TO OFFICE RESPONSIBLE GOVERNMENTS OVER AND AGAIN, EMPHASIZES
THAT THE ABILITY TO READ AND WRITE IS NOT NECESSARY FOR AN INTELLIGENT
USE OF THE BALLOT.  YET OUR PROBLEM AS JUDGES IS NOT TO DETERMINE WHAT
IS WISE OR UNWISE.  THE ISSUES OF CONSTITUTIONAL POWER ARE MORE
CONFINED.  A STATE HAS BROAD POWERS OVER ELECTIONS; AND I CANNOT SAY
THAT IT IS AN UNCONSTITUTIONAL EXERCISE OF THAT POWER TO CONDITION THE
USE OF THE BALLOT ON THE ABILITY TO READ AND WRITE.  THAT IS THE ONLY
TEACHING OF LASSITER V. NORTHAMPTON ELECTION BOARD, 360 U.S. 45.  BUT
WE ARE A MULTI-RACIAL AND MULTI-LINGUISTIC NATION; AND THERE ARE GROUPS
IN THIS COUNTRY AS VERSATILE IN SPANISH, FRENCH, JAPANESE, AND CHINESE,
FOR EXAMPLE, AS OTHERS ARE IN ENGLISH.  MANY OF THEM CONSTITUTE
COMMUNITIES IN WHICH THERE ARE WIDESPREAD ORGANS OF PUBLIC
COMMUNICATION IN ONE OF THOSE TONGUES - SUCH AS NEWSPAPERS, MAGAZINES,
RADIO, AND TELEVISION WHICH REGULARLY REPORT AND COMMENT ON MATTERS OF
POLITICAL INTEREST AND PUBLIC CONCERN.  SUCH IS THE CASE IN NEW YORK
CITY WHERE SPANISH-LANGUAGE NEWSPAPERS AND PERIODICALS FLOURISH AND
WHERE THERE ARE SPANISH-LANGUAGE RADIO BROADCASTS WHICH APPELLANT READS
AND LISTENS TO.  BEFORE TAKING UP RESIDENCE IN NEW YORK CITY SHE LIVED
IN PUERTO RICO WHERE SHE REGULARLY VOTED IN GUBERNATORIAL, LEGISLATIVE,
AND MUNICIPAL ELECTIONS.  AND SO OUR EQUAL PROTECTION QUESTION IS
WHETHER INTELLIGENT USE OF THE BALLOT SHOULD NOT BE AS MUCH PRESUMED
WHERE ONE IS VERSATILE IN THE SPANISH LANGUAGE AS IT IS WHERE ENGLISH
IS THE MEDIUM. 

NEW YORK'S LAW PERMITS AN ENGLISH-SPEAKING VOTER TO QUALIFY EITHER BY
PASSING AN ENGLISH LITERACY TEST  (FN2) OR BY PRESENTING A CERTIFICATE
SHOWING COMPLETION OF THE SIXTH GRADE OF AN APPROVED ELEMENTARY SCHOOL
IN WHICH ENGLISH IS THE LANGUAGE OF INSTRUCTION.  (FN3)  BUT A SPANISH
SPEAKING PERSON, SUCH AS APPELLANT, IS OFFERED NO LITERACY TEST IN
SPANISH.  HER ONLY RECOURSE IS TO A CERTIFICATE SHOWING COMPLETION OF
THE SIXTH GRADE OF A PUBLIC SCHOOL IN, OR A PRIVATE SCHOOL ACCREDITED
BY, THE COMMONWEALTH OF PUERTO RICO; (FN4) AND PRIOR TO SEC 4(E) OF THE
VOTING RIGHTS ACT THAT SCHOOL HAD TO BE ONE IN WHICH ENGLISH WAS THE
LANGUAGE OF INSTRUCTION.  THE HEAVIER BURDEN WHICH NEW YORK HAS PLACED
ON THE SPANISH-SPEAKING AMERICAN CANNOT IN MY VIEW BE SUSTAINED UNDER
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

WE DEAL HERE WITH THE RIGHT TO VOTE WHICH OVER AND AGAIN WE HAVE
CALLED A "FUNDAMENTAL MATTER IN A FREE AND DEMOCRATIC SOCIETY." 
REYNOLDS V. SIMS, 377 U.S. 533, 561-562; HARPER V. VIRGINIA BOARD, 383
U.S. 663, 667.  WHERE CLASSIFICATIONS MIGHT "INVADE OR RESTRAIN"
FUNDAMENTAL RIGHTS AND LIBERTIES, THEY MUST BE "CLOSELY SCRUTINIZED AND
CAREFULLY CONFINED."  HARPER V. VIRGINIA BOARD, SUPRA, AT 670.  OUR
PHILOSOPHY THAT REMOVAL OF UNWISE LAWS MUST BE LEFT TO THE BALLOT, NOT
TO THE COURTS, REQUIRES THAT RECOURSE TO THE BALLOT NOT BE RESTRICTED
AS NEW YORK HAS ATTEMPTED.  IT LITTLE PROFITS THE SPANISH-SPEAKING
PEOPLE OF NEW YORK THAT THIS LITERACY TEST CAN BE CHANGED BY
LEGISLATION EITHER IN ALBANY OR IN WASHINGTON, D.C., IF THEY ARE BARRED
FROM PARTICIPATING IN THE PROCESS OF SELECTING THOSE LEGISLATURES. 
THAT IS A FUNDAMENTAL REASON WHY A FAR STERNER TEST IS REQUIRED WHEN A
LAW - WHETHER STATE OR FEDERAL - ABRIDGES A FUNDAMENTAL RIGHT.  (FN5) 

NEW YORK, AS I HAVE SAID, REGISTERS THOSE WHO HAVE COMPLETED SIX
YEARS OF SCHOOL IN A CLASSROOM WHERE ENGLISH IS THE MEDIUM OF
INSTRUCTION AND THOSE WHO PASS AN ENGLISH LITERACY TEST.  IN MY VIEW,
THERE IS NO RATIONAL BASIS - CONSIDERING THE IMPORTANCE OF THE RIGHT AT
STAKE - FOR DENYING THOSE WITH EQUIVALENT QUALIFICATIONS EXCEPT THAT
THE LANGUAGE IS SPANISH.  THUS APPELLANT HAS, QUITE APART FROM ANY
FEDERAL LEGISLATION, A CONSTITUTIONAL RIGHT TO VOTE IN NEW YORK ON A
PARITY WITH AN ENGLISH-SPEAKING CITIZEN - EITHER BY PASSING A SPANISH
LITERACY TEST OR THROUGH A CERTIFICATE SHOWING COMPLETION OF THE SIXTH
GRADE IN A PUERTO RICAN SCHOOL WHERE SPANISH WAS THE CLASSROOM
LANGUAGE.  IN NO OTHER  WAY CAN SHE BE PLACED ON A CONSTITUTIONAL
PARITY WITH ENGLISH-SPEAKING ELECTORS. 

FN1  PUERTO RICO IN THE LAST QUARTER CENTURY HAS ALSO PROVIDED A
DEMONSTRATION OF THE POINT, ALTHOUGH IT IS FAST OVERCOMING ITS
ILLITERACY PROBLEM.  IN 1940 31.5% OF ITS PEOPLE WERE ILLITERATE.   THE
RATE WAS REDUCED TO 13.8% IN 1965.  SELECTED INDICES OF SOCIAL AND
ECONOMIC PROGRESS:  FISCAL YEARS 1939-40, 1947-48 TO 1964-65 (PUERTO
RICO BUREAU OF ECONOMIC AND SOCIAL ANALYSIS) 7-8.  DURING THIS PERIOD
THE PEOPLE HAVE ELECTED HIGHLY PROGRESSIVE AND ABLE OFFICIALS. 

FN2  SECTION 168(1), MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK ANN.,
ELECTION LAW. 

FN3  ID., SEC 168(2). 

FN4  IBID. 

FN5  SEE THORNHILL V. ALABAMA, 310 U.S. 88, 95-96; THOMAS V. COLLINS,
323 U.S. 516, 530; ASHTON V. KENTUCKY, ANTE, P. 195. 
..END :



















NICHOLAS V. UNITED STATES 384 U.S. 678 


NO. 650.  ARGUED APRIL 19, 1966.  - DECIDED JUNE 13, 1966.  - 346 F.2D
32, AFFIRMED IN PART, REVERSED IN PART AND REMANDED. 


A CORPORATION FILED A PETITION FOR AN ARRANGEMENT WITH UNSECURED
CREDITORS UNDER CHAPTER XI OF THE BANKRUPTCY ACT.  WHILE OPERATING ITS
BUSINESS AS A DEBTOR IN POSSESSION THE CORPORATION WITHHELD FEDERAL
INCOME AND SOCIAL SECURITY TAXES AND COLLECTED CABARET EXCISE TAXES. 
IT THEN FILED A PETITION IN BANKRUPTCY AND WAS ADJUDGED A BANKRUPT. 
PETITIONER, WHO WAS APPOINTED TRUSTEE IN BANKRUPTCY, DID NOT PAY THE
TAXES WHEN THEY LATER BECAME DUE NOR DID HE FILE THE REQUIRED TAX
RETURNS.  THE GOVERNMENT FILED AN ADMINISTRATIVE EXPENSE STATEMENT IN
THE BANKRUPTCY PROCEEDING, CLAIMING THE PRINCIPAL OF THE TAXES DUE PLUS
PENALTIES AND INTEREST.  THE REFEREE ALLOWED THE CLAIM FOR TAXES BUT
DENIED THE CLAIMS FOR PENALTIES AND INTEREST AND THE DISTRICT COURT
AFFIRMED.  THE COURT OF APPEALS REVERSED AND ALLOWED THE CLAIMS FOR
PENALTIES AND INTEREST.  HELD: 

1.  THE UNITED STATES IS NOT ENTITLED TO INTEREST IN THIS CASE.  PP.
682-692. 

(A)  SEXTON V. DREYFUS, 219 U.S. 339, AND NEW YORK V. SAPER, 336 U.S.
328, ESTABLISH THAT INTEREST IS SUSPENDED ONCE AN ENTERPRISE ENTERS A
PERIOD OF BANKRUPTCY ADMINISTRATION BEYOND THAT IN WHICH THE UNDERLYING
INTEREST-BEARING OBLIGATION WAS INCURRED.  P. 685. 

(B)  WHERE TAXES HAVE BEEN INCURRED DURING THE CHAPTER XI PROCEEDING
ITSELF, THE ABOVE PRINCIPLE PERMITS INTEREST TO ACCRUE DURING THE
ARRANGEMENT PROCEEDING BUT REQUIRES THAT IT BE SUSPENDED ONCE THE
BANKRUPTCY PETITION IS FILED.  P. 686. 

2.  THE UNITED STATES IS ENTITLED TO PAYMENT OF THE PENALTIES.  PP.
692-696. 

(A)  THE TRUSTEE IN BANKRUPTCY, AS REPRESENTATIVE OF THE BANKRUPT
ESTATE AND SUCCESSOR IN INTEREST TO THE DEBTOR IN POSSESSION, WAS UNDER
26 U.S.C. SEC 6011(A) OBLIGATED TO FILE RETURNS FOR THE TAXES, EVEN
THOUGH INCURRED BY THE DEBTOR IN POSSESSION DURING THE PENDENCY OF THE
ARRANGEMENT PROCEEDING.  PP. 692-693. 

(B)  UNDER BOTELER V. INGELS, 308 U.S. 57, THE UNITED STATES IS
ENTITLED, IN THE CIRCUMSTANCES OF THIS CASE, TO EXACT THE PENALTIES AS
A LEGITIMATE MEANS OF ENFORCING THE PROMPT FILING OF THE TAX RETURNS. 
PP. 693-695. 

NICHOLAS, TRUSTEE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER A SUPERSEDING TRUSTEE
IN BANKRUPTCY IS LIABLE FOR INTEREST AND PENALTIES ON FEDERAL TAXES
INCURRED BY A DEBTOR IN POSSESSION DURING AN ARRANGEMENT PROCEEDING
UNDER CHAPTER XI OF THE BANKRUPTCY ACT.  THE FACTS ARE NOT IN DISPUTE. 

ON AUGUST 6, 1958, BEACHCOMBER MOTEL, INC., A FLORIDA CORPORATION
OPERATING A MOTEL IN MIAMI BEACH, FILED AN ORIGINAL PETITION FOR AN
ARRANGEMENT WITH ITS UNSECURED CREDITORS UNDER CHAPTER XI. BANKRUPTCY
ACT SEC 322, 11 U.S.C. SEC 722 (1964 ED.).  DURING THE PENDENCY OF THE
ARRANGEMENT PROCEEDING, THE CORPORATION WAS PERMITTED TO OPERATE ITS
BUSINESS AS A DEBTOR IN POSSESSION UNDER THE AUTHORITY OF THE
BANKRUPTCY COURT.  IN THE COURSE OF ITS BUSINESS OPERATIONS, THE
CORPORATION WITHHELD FEDERAL INCOME TAXES  (FN1) AND SOCIAL SECURITY
TAXES  (FN2) FROM THE WAGES PAID TO ITS EMPLOYEES AND COLLECTED FEDERAL
EXCISE TAXES ON THE RECEIPTS FROM ITS CABARET.  (FN3)  SUBSEQUENTLY,
THE CORPORATION WAS DISPOSSESSED OF ITS PROPERTY AND THE MOTEL PREMISES
WERE CLOSED. 

UNABLE TO PROCEED WITH A PLAN OF ARRANGEMENT WITH ITS CREDITORS, THE
CORPORATION FILED A PETITION IN BANKRUPTCY ON SEPTEMBER 17, 1958, AND
WAS ADJUDGED A BANKRUPT ON THE SAME DATE.  BANKRUPTCY ACT SEC 376(2),
11 U.S.C. SEC 776(2) (1964 ED.).  ON SEPTEMBER 19, 1958, A TRUSTEE IN
BANKRUPTCY, THE PETITIONER IN THIS CASE, WAS APPOINTED.  ON OCTOBER 31,
1958, THE FEDERAL INCOME TAXES WITHHELD, AS WELL AS THE SOCIAL SECURITY
TAXES AND THE CABARET TAXES, WERE DUE TO BE PAID.  ON JANUARY 31, 1959,
THE PAYROLL TAX IMPOSED ON EMPLOYERS BY THE FEDERAL UNEMPLOYMENT TAX
ACT WAS DUE.  (FN4)  THE TRUSTEE IN BANKRUPTCY NEITHER PAID THESE TAXES
NOR FILED ANY OF THE RETURNS REQUIRED WITH RESPECT TO THEM.  ON APRIL
11, 1963, THE UNITED STATES SUBMITTED AN ADMINISTRATIVE EXPENSE
STATEMENT IN THE BANKRUPTCY PROCEEDING, CLAIMING AS ADMINISTRATIVE
EXPENSES THE PRINCIPAL OF THE TAXES DUE, PENALTIES ASSESSED FOR THE
TRUSTEE'S FAILURE TO FILE THE RETURNS FOR THE TAXES,  (FN5) AND
INTEREST THAT HAD ACCUMULATED AND WOULD CONTINUE TO ACCUMULATE ON THE
TAXES AND PENALITES UNTIL THEY WERE PAID.  (FN6)

THE REFEREE IN BANKRUPTCY ALLOWED THE GOVERNMENT'S CLAIM FOR THE
PRINCIPAL OF THE TAXES BUT DISALLOWED THE CLAIMS FOR PENALTIES AND
INTEREST.  (FN7)  THE REFEREE'S ORDER WAS AFFIRMED IN ALL RESPECTS BY
THE DISTRICT COURT.  THE COURT OF APPEALS FOR THE FIFTH DISTRICT
REVERSED THE JUDGMENT OF THE DISTRICT COURT AND ALLOWED THE CLAIMS FOR
PENALTIES AND INTEREST ON THE TAXES.  346 F.2D 32.  SHORTLY AFTER THAT
DECISION, THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT REACHED THE
OPPOSITE RESULT WITH RESPECT TO A SIMILAR CLAIM BY THE GOVERNMENT FOR
INTEREST ON TAXES INCURRED DURING A CHAPTER XI PROCEEDING,  (FN8) AND
WE GRANTED CERTIORARI TO RESOLVE THIS CONFLICT.  382 U.S. 971. 

               I. 

IT IS A WELL-SETTLED PRINCIPLE OF AMERICAN BANKRUPTCY LAW THAT IN
CASES OF ORDINARY BANKRUPTCY, THE ACCUMULATION OF INTEREST ON CLAIMS
AGAINST A BANKRUPT ESTATE IS SUSPENDED AS OF THE DATE THE PETITION IN
BANKRUPTCY IS FILED.  SEXTON V. DREYFUS, 219 U.S. 339.  (FN9)  THAT
RULE, GROUNDED IN HISTORICAL CONSIDERATIONS OF EQUITY AND
ADMINISTRATIVE CONVENIENCE, WAS SPECIFICALLY MADE APPLICABLE TO THE
ACCUMULATION OF INTEREST ON CLAIMS FOR TAXES BY THE DECISION OF THIS
COURT IN NEW YORK V. SAPER, 336 U.S. 328.  (FN10) 

THE DEBTS IN SEXTON, LIKE THE TAXES IN SAPER, WERE INCURRED DURING
THE REGULAR BUSINESS OPERATIONS OF THE TAXPAYER, PRIOR TO THE
INVOCATION OF ANY PROCEDURES UNDER THE BANKRUPTCY ACT, WHEREAS THE
TAXES IN THE PRESENT CASE WERE INCURRED AFTER A PETITION INVOKING
CHAPTER XI OF THE ACT HAD BEEN FILED.  ON THE BASIS OF THAT
DISTINCTION, THE GOVERNMENT CONTENDS THAT THE TAXES HERE IN QUESTION
WERE ENTITLED TO BEAR INTEREST THROUGHOUT THE BANKRUPTCY PERIOD.  WE
DRAW NO SUCH CONCLUSION FROM THAT DISTINCTION. 

WE BELIEVE THAT THE DECISIONS OF THIS COURT IN SEXTON AND SAPER
REFLECT THE BROAD EQUITABLE PRINCIPLE THAT CREDITORS SHOULD NOT BE
DISADVANTAGED VIS-A-VIS ONE ANOTHER BY LEGAL DELAYS ATTRIBUTABLE SOLELY
TO THE TIME-CONSUMING PROCEDURES INHERENT IN THE ADMINISTRATION OF THE
BANKRUPTCY LAWS.  (FN11)  IN THE CONTEXT OF INTEREST-BEARING DEBTS, THE
EQUITABLE PRINCIPLE ENUNCIATED IN SEXTON AND SAPER RESTS AT BOTTOM  ON
AN AWARENESS OF THE INEQUITY THAT WOULD RESULT IF, THROUGH THE
CONTINUING ACCUMULATION OF INTEREST IN THE COURSE OF SUBSEQUENT
BANKRUPTCY PROCEEDINGS, OBLIGATIONS BEARING RELATIVELY HIGH RATES OF
INTEREST WERE PERMITTED TO ABSORB THE ASSETS OF A BANKRUPT ESTATE WHOSE
FUNDS WERE ALREADY INADEQUATE TO PAY THE PRINCIPAL OF THE DEBTS OWED BY
THE ESTATE.  (FN12) 

TO BE SURE, THE AMOUNT OF INTEREST THAT ACCUMULATES ON A DEBT
INCURRED DURING A CHAPTER XI ARRANGEMENT DEPENDS UPON THE DURATION OF A
PROCEEDING THAT TAKES PLACE UNDER THE DIRECTION AND AUTHORITY OF THE
BANKRUPTCY COURT.  BANKRUPTCY ACT SECS 342, 343, 11 U.S.C.  SECS 742,
743 (1964 ED.).  BUT INTEREST CLAIMED ON SUCH A DEBT DOES NOT ARISE
THROUGH A "DELAY" OF THE LAW IN ANY MEANINGFUL SENSE.  THE UNDERLYING
OBLIGATION OF THE DEBTOR IN POSSESSION IS INCURRED AS PART OF A
JUDICIAL PROCESS OF REHABILITATION OF THE DEBTOR THAT THE PROCEDURES OF
CHAPTER XI ARE DESIGNED TO FACILITATE.  INTEREST ON A CURRENT CHAPTER
XI OBLIGATION IS THEREFORE DIFFERENT IN KIND FROM INTEREST CLAIMED
DURING THE ARRANGEMENT PERIOD ON A DEBT INCURRED BEFORE THE CHAPTER XI
PETITION WAS FILED.  FROM THE VANTAGE POINT OF PREARRANGEMENT
CREDITORS, THE PANORAMA OF A CHAPTER XI PROCEEDING IS INTIMATELY BOUND
UP WITH THE INTRUSION OF THE BANKRUPTCY LAW INTO THE PREVIOUSLY
UNTRAMMELLED RELATIONSHIP BETWEEN A DEBTOR AND HIS CREDITORS.  FOR
THESE CREDITORS, THE FILING OF THE CHAPTER XI PETITION MAY LEGITIMATELY
BE REGARDED AS INTRODUCING THE VERY SORT OF LEGAL DELAY THAT BANKRUPTCY
COURTS, IN DENYING CLAIMS FOR INTEREST, HAVE TRADITIONALLY
CHARACTERIZED AS INEQUITABLE.  ON THE OTHER HAND, FROM THE VANTAGE
POINT OF THE CREDITOR WHOSE CREDIT RELATIONSHIP AROSE DURING THE
CHAPTER XI PROCEEDING ITSELF, IT IS THE SUBSEQUENT FILING OF A PETITION
IN BANKRUPTCY THAT MARKS THE INTERVENTION OF MEANINGFUL LEGAL DELAYS. 
THE EQUITABLE RATIONALE UNDERLYING OUR DECISIONS IN SEXTON AND SAPER IS
THEREFORE FULLY APPLICABLE TO CASES IN WHICH A CHAPTER XI PROCEEDING IS
SUPERSEDED BY A LIQUIDATING BANKRUPTCY.  (FN13) 

THE PRINCIPLE THAT OUR PAST DECISIONS THUS ESTABLISH IS THAT THE
ACCUMULATION OF INTEREST ON A DEBT MUST BE SUSPENDED ONCE AN ENTERPRISE
ENTERS A PERIOD OF BANKRUPTCY ADMINISTRATION BEYOND THAT IN WHICH THE
UNDERLYING INTEREST-BEARING OBLIGATION WAS INCURRED.  IN SAPER, THERE
WERE TWO RELEVANT PERIODS TO BE CONSIDERED - THE PREPETITION PERIOD,
BEFORE THE PETITION IN BANKRUPTCY WAS FILED, AND THE POST-PETITION
PERIOD, DURING THE BANKRUPTCY LIQUIDATION.  THE COURT THERE UPHELD THE
ACCUMULATION OF INTEREST THROUGHOUT THE PRE-PETITION PERIOD ON TAXES
INCURRED DURING THAT PERIOD; IT REJECTED ONLY THE CLAIM FOR POST
PETITION INTEREST ON THE PRE-PETITION TAXES.  BY CONTRAST, THE
CIRCUMSTANCES OF THE PRESENT CASE COMMEND A DIVISION INTO THREE PERIODS
- THE PRE-ARRANGEMENT PERIOD, THE ARRANGEMENT PERIOD, AND THE
LIQUIDATING BANKRUPTCY PERIOD.  A TAX INCURRED WITHIN ANY ONE OF THESE
THREE PERIODS WOULD, WE THINK, BE ENTITLED TO BEAR INTEREST AGAINST THE
BANKRUPT ESTATE UNTIL, BUT NOT BEYOND, THE CLOSE OF THE PERIOD IN WHICH
IT WAS INCURRED.  THUS, IN A CASE CONCERNING TAXES INCURRED DURING THE
FIRST PERIOD - THAT IS, BEFORE THE FILING OF A PETITION FOR A CHAPTER
XI ARRANGEMENT - THE COURT HAS SUMMARILY AFFIRMED A JUDGMENT HOLDING
THAT THE ACCUMULATION OF INTEREST MUST BE SUSPENDED AS OF THE DATE THE
CHAPTER XI PETITION WAS FILED.  (FN14)  WHERE, AS IN THE PRESENT CASE,
THE TAXES HAVE BEEN INCURRED IN THE CHAPTER XI PROCEEDING ITSELF,
APPLICATION OF THE PRINCIPLE ENUNCIATED IN SEXTON AND SAPER PERMITS
INTEREST TO ACCRUE THROUGHOUT THE ARRANGEMENT PROCEEDING; THE PRINCIPLE
REQUIRES ONLY THAT THE ACCUMULATION OF INTEREST BE SUSPENDED ONCE A
PETITION IN BANKRUPTCY IS FILED. 

THE ALLOWANCE OF INTEREST ON CHAPTER XI DEBTS UNTIL THE FILING OF A
PETITION IN BANKRUPTCY PROMOTES THE AVAILABILITY OF CAPITAL TO A DEBTOR
IN POSSESSION AND ENHANCES THE LIKELIHOOD OF ACHIEVING THE GOAL OF THE
PROCEEDING, THE ULTIMATE REHABILITATION OF THE DEBTOR.  (FN15)
DISALLOWANCE OF INTEREST ON CHAPTER XI DEBTS MIGHT SERIOUSLY HINDER THE
AVAILABILITY OF SUCH FUNDS AND MIGHT IN MANY CASES FORECLOSE THE
PROSPECT OF THE DEBTOR'S RECOVERY.  (FN16)  NO SUCH SIGNIFICANT
DETRIMENT TO THE VIABILITY OF A CHAPTER XI PROCEEDING IS IMPOSED BY THE
SUSPENSION OF INTEREST ONCE THE PROCEEDING ENTERS THE LIQUIDATING
BANKRUPTCY PERIOD, SINCE  POTENTIAL CREDITORS CAN READILY ADJUST THEIR
INTEREST RATES TO ACCOMMODATE THEIR PROGNOSIS OF THE PARTICULAR
DEBTOR'S CHANCES OF REHABILITATION. 

THE DIVISION OF THE PROCEEDINGS IN THE PRESENT CASE INTO THREE
SEPARATE PERIODS DEFINING THE PERMISSIBLE ACCUMULATION OF INTEREST IS
SUPPORTED BY THE THREEFOLD HIERARCHY OF PRIORITIES FOR TAX CLAIMS UNDER
THE BANKRUPTCY ACT.  TAXES INCURRED IN THE PRE-ARRANGEMENT PERIOD MUST
BE CONTENT WITH A FOURTH PRIORITY UNDER SEC 64A(4) OF THE BANKRUPTCY
ACT.  (FN17)  ON THE OTHER HAND, TAXES INCURRED DURING THE ARRANGEMENT
PERIOD ARE EXPENSES OF THE CHAPTER XI PROCEEDINGS AND ARE THEREFORE
TECHNICALLY A PART OF THE FIRST PRIORITY UNDER SEC 64A(1).  (FN18)  THE
FINAL SENTENCE OF THAT SECTION, HOWEVER, SUBORDINATES ARRANGEMENT
EXPENSES WITHIN THAT PRIORITY TO THE EXPENSES OF THE SUPERSEDING
BANKRUPTCY ADMINISTRATION.  TAX CLAIMS INCURRED DURING CHAPTER XI
PROCEEDINGS ARE THEREFORE IN FACT JUNIOR TO CLAIMS FOR EXPENSES
INCURRED IN SUBSEQUENT BANKRUPTCY PROCEEDINGS.  THE SUSPENSION OF
INTEREST ON TAXES INCURRED DURING THE ARRANGEMENT PERIOD AS OF THE DATE
A BANKRUPTCY PETITION IS FILED THUS CORRESPONDS TO THE SUSPENSION OF
INTEREST ON PRE-ARRANGEMENT TAXES WHEN A CHAPTER XI PETITION IS FILED. 
MOREOVER, THE SUSPENSION OF INTEREST EXTRICATES THE SUPERSEDING TRUSTEE
FROM A SERIOUS DILEMMA HE WOULD OTHERWISE FACE, WHETHER TO PAY
SUBORDINATED CHAPTER XI TAX CLAIMS PREMATURELY IN ORDER TO FORESTALL
THE ACCRUAL OF INTEREST, OR TO INCREASE THE BURDEN ON THE BANKRUPT
ESTATE BY ALLOWING THE INTEREST TO ACCUMULATE.  (FN19) 

ASIDE FROM ITS BASIS IN THE EQUITABLE PRINCIPLE THAT CREDITORS OF A
BANKRUPT ESTATE SHOULD NOT BE DISADVANTAGED SOLELY BY MEANS OF THE
LAW'S DELAY, THE CONFINEMENT OF THE ACCRUAL OF INTEREST ON CHAPTER XI
OBLIGATIONS TO THE ARRANGEMENT PROCEEDING ITSELF IS ALSO GROUNDED IN
SIGNIFICANT CONSIDERATIONS OF ADMINISTRATIVE CONVENIENCE.  AS THE COURT
RECOGNIZED IN VANSTON BONDHOLDERS PROTECTIVE COMMITTEE V. GREEN, 329
U.S. 156, 164, "ACCRUAL OF SIMPLE INTEREST ON UNSECURED CLAIMS IN
BANKRUPTCY WAS PROHIBITED IN ORDER THAT THE ADMINISTRATIVE
INCONVENIENCE OF CONTINUOUS RECOMPUTATION OF INTEREST CAUSING
RECOMPUTATION OF CLAIMS COULD BE AVOIDED."  THUS, BY ACCEPTING AS A CUT
OFF THE DATE OF FILING OF THE PETITION IN BANKRUPTCY, THE TRUSTEE
AVOIDS THE POTENTIALLY LABORIOUS PROCEDURE OF RECALCULATING THE PRO
RATA SHARE TO WHICH EACH CHAPTER XI CREDITOR IS ENTITLED WHENEVER A
DISTRIBUTION IN THE SUPERVENING BANKRUPTCY IS CARRIED OUT.  (FN20) 

THE APPLICATION OF THE PRINCIPLE OF OUR PAST DECISIONS TO THE FACTS
OF THE PRESENT CASE IS STRAIGHTFORWARD.  SINCE THE TAXES IN QUESTION
WERE INCURRED DURING THE CHAPTER XI ARRANGEMENT PROCEEDING ITSELF, THE
UNITED STATES WAS ENTITLED TO INTEREST ON THOSE TAXES FOR THE DURATION
OF THAT PERIOD.  THE ACTUAL ARRANGEMENT PROCEEDING IN THIS CASE,
HOWEVER, TERMINATED BEFORE THE TAXES BECAME PAYABLE, AND, THEREFORE, NO
INTEREST ON THE TAXES ACCUMULATED BEFORE THE PETITION IN BANKRUPTCY WAS
FILED BY THE DEBTOR IN POSSESSION.  THE ENTIRE AMOUNT OF INTEREST
SOUGHT BY THE UNITED STATES REPRESENTS INTEREST CLAIMED FOR THE
LIQUIDATING BANKRUPTCY PERIOD.  SINCE WE HOLD THAT THE ACCUMULATION OF
INTEREST ON DEBTS INCURRED DURING CHAPTER XI PROCEEDINGS IS SUSPENDED
ON THE DATE THE PETITION IN THE SUPERSEDING BANKRUPTCY IS FILED, IT IS
CLEAR THAT THE UNITED STATES IS NOT ENTITLED TO THE INTEREST THAT IT
SEEKS ON THE TAXES IN THIS CASE. 

THE RESULT HERE IS IN NO WAY INCONSISTENT WITH THE PROVISIONS OF 28
U.S.C. SEC 960, WHICH STATES THAT PERSONS CONDUCTING A BUSINESS UNDER
THE AUTHORITY OF A FEDERAL COURT SHALL BE TAXED AS IF THEY WERE
CONDUCTING A PRIVATE BUSINESS.  (FN21)  AS AN OFFICER OF THE BANKRUPTCY
COURT, THE DEBTOR IN POSSESSION WAS FULLY SUBJECT TO TAXES AND INTEREST
INCURRED DURING HIS OPERATION OF THE BUSINESS IN THE CHAPTER XI
ARRANGEMENT.  NOTHING IN THE GENERAL LANGUAGE OF 28 U.S.C. SEC 960,
HOWEVER, NECESSARILY SUBJECTS THE TRUSTEE IN THE SUPERSEDING BANKRUPTCY
PROCEEDING TO AN OBLIGATION TO PAY ADDITIONAL INTEREST ON THOSE PRIOR
TAXES ONCE A PETITION IN BANKRUPTCY HAS BEEN FILED.  UNITED STATES V.
KALISHMAN, 346 F.2D 514; CF. NEW YORK V. SAPER, 336 U.S. 328; UNITED
STATES V. GENERAL ENGINEERING & MFG. CO., 188 F.2D 80 (C.A. 8TH CIR.),
AFF'D, 342 U.S. 912.  IN THE ABSENCE OF EXPLICIT CONGRESSIONAL
DIRECTION, THE CONSIDERATIONS OF EQUITY AND ADMINISTRATIVE CONVENIENCE
ESTABLISHED BY OUR DECISIONS UNDER THE BANKRUPTCY ACT CLEARLY SUPPORT
THIS INTERPRETATION OF THE SCOPE OF THIS PROVISION OF THE JUDICIAL
CODE.    WE FIND NO MERIT IN THE GOVERNMENT'S ALTERNATIVE SUGGESTION
THAT THE INTEREST ON TWO OF THE TAXES HERE IN QUESTION - THOSE WITHHELD
FROM THE WAGES OF EMPLOYEES AND THOSE COLLECTED FROM THE PATRONS OF THE
CABARET - CONSTITUTES A TRUST FUND OVER WHICH THE UNITED STATES HAS AN
ABSOLUTE PRIORITY UNDER SEC 7501(A) OF THE INTERNAL REVENUE CODE. 
(FN22)  WE NEED NOT HERE DETERMINE WHETHER, WITH REGARD TO THE
PRINCIPAL OF THOSE TAXES, THE GENERAL LANGUAGE OF SEC 7501(A) OVERRIDES
THE STRONG POLICY OF SEC 64A(1) OF THE BANKRUPTCY ACT, WHICH
ESTABLISHES A SHARPLY DEFINED PRIORITY THAT PLACES ALL EXPENSES OF
ADMINISTRATION ON A PARITY, INCLUDING CLAIMS FOR TAXES.  (FN23)  CF.
GUARANTEE CO. V.  TITLE GUARANTY CO., 224 U.S. 152; DAVIS V. PRINGLE,
268 U.S. 315; MISSOURI V. ROSS, 299 U.S. 72.   THE SECOND SENTENCE OF
SEC 7501(A) SPECIFICALLY PROVIDES THAT INTEREST ON SUCH A TRUST FUND IS
COLLECTIBLE IN THE SAME MANNER AS THE TAXES FROM WHICH THE FUND AROSE. 
SINCE WE HAVE ALREADY DETERMINED THAT NO INTEREST ON ANY OF THE TAXES
HERE IN QUESTION ACCRUES BEYOND THE PERIOD OF THE ARRANGEMENT
PROCEEDING, NO INTEREST COULD ACCUMULATE ON A TRUST FUND COMPOSED OF
THE WITHHOLDING AND CABARET TAXES.  (FN24) 

WE THEREFORE REVERSE THE JUDGMENT OF THE COURT OF APPEALS WITH REGARD
TO THE LIABILITY OF THE TRUSTEE FOR THE INTEREST ON THE TAXES. 

II. 

THE VALIDITY OF THE CLAIM BY THE UNITED STATES AGAINST THE TRUSTEE
FOR PENALTIES FOR FAILURE TO FILE THE RETURNS FOR THE TAXES IN QUESTION
PRESENTS A COMPLETELY DIFFERENT ISSUE.  THE RESULT HERE IS GOVERNED
SQUARELY BY THE RATIONALE OF OUR DECISION IN BOTELER V. INGELS, 308
U.S. 57, IN WHICH WE SUSTAINED A PENALTY AGAINST A TRUSTEE IN
BANKRUPTCY WHO FAILED TO PAY STATE AUTOMOBILE LICENSE TAXES INCURRED
WHILE HE WAS OPERATING THE BUSINESS OF THE BANKRUPT ESTATE FOR THE
PURPOSE OF LIQUIDATION.  WE HELD IN BOTELER THAT CONGRESS, UNDER THE
PREDECESSOR OF 28 U.S.C. SEC 960,  (FN25) HAD "WITH VIGOR AND CLARITY
DECLARED THAT A TRUSTEE AND OTHER COURT APPOINTEES WHO OPERATE
BUSINESSES MUST DO SO SUBJECT TO STATE TAXES 'THE SAME AS IF SUCH
BUSINESSES WERE CONDUCTED BY AN INDIVIDUAL OR CORPORATION.'"  308 U.S.,
AT 61.  AS WE STATED IN BOTELER, IF THE TRUSTEE WERE EXEMPT FROM THE
PENALTY, A "STATE WOULD THUS BE ACCORDED THE THEORETICAL PRIVILEGE OF
TAXING BUSINESSES OPERATED BY TRUSTEES IN BANKRUPTCY ON AN EQUAL
FOOTING WITH ALL OTHER BUSINESSES, BUT WOULD BE DENIED THE TRADITIONAL
AND ALMOST UNIVERSAL METHOD OF ENFORCING PROMPT PAYMENT."  ID., AT 61. 
(FN26) 

THE SAME CONSIDERATIONS ARE EQUALLY APPLICABLE TO THE PRESENT CASE. 
IT IS CONCEDED THAT THE TRUSTEE, IN HIS STATUS AS REPRESENTATIVE OF THE
BANKRUPT ESTATE AND SUCCESSOR IN INTEREST TO THE DEBTOR IN POSSESSION,
IS LIABLE FOR THE PRINCIPAL OF THE TAXES INCURRED BY THE DEBTOR IN
POSSESSION, TO THE EXTENT OF THE PRIORITY ENJOYED BY THE TAXES UNDER
SEC 64A(1) OF THE BANKRUPTCY ACT.  (FN27) ONCE THAT LIABILITY IS
ESTABLISHED, THERE CAN BE NO QUESTION THAT, UNDER SEC 6011(A) OF THE
INTERNAL REVENUE CODE, THE TRUSTEE WAS UNDER AN OBLIGATION TO FILE
RETURNS FOR THESE TAXES, EVEN THOUGH THE TAXES THEMSELVES WERE INCURRED
BY THE DEBTOR IN POSSESSION DURING THE PENDENCY OF THE ARRANGEMENT
PROCEEDING.  (FN28) IT THEREFORE FOLLOWS UNDER BOTELER THAT, IN THE
CIRCUMSTANCES OF THE PRESENT CASE, WHERE A CHAPTER XI ARRANGEMENT HAS
BEEN SUPERSEDED BY A LIQUIDATING BANKRUPTCY UNDER THE BANKRUPTCY ACT,
THE UNITED STATES IS ENTITLED TO EXACT THE PENALTIES HERE IN QUESTION
AS A LEGITIMATE MEANS TO ENFORCE THE PROMPT FILING OF THE TAX RETURNS. 
ALTHOUGH THE RULE IN BOTELER MAY BE OPEN TO SOME QUESTION AS APPLIED TO
THE FACTS OF THAT CASE, NO SUCH DIFFICULTY IS PRESENTED HERE.   IN
BOTELER, THE TRUSTEE WAS PENALIZED FOR HIS FAILURE ACTUALLY TO PAY THE
LICENSE FEES WITHIN THE TIME PERIOD PRESCRIBED BY THE STATE, EVEN
THOUGH IT COULD NOT HAVE BEEN CLEAR AT THAT DATE THAT THE ASSETS OF THE
BANKRUPT ESTATE WOULD BE SUFFICIENT TO PAY ALL OF THE EXPENSES OF
ADMINISTRATION THAT WERE ENTITLED TO SHARE EQUALLY WITH THE TAXES UNDER
THE FIRST PRIORITY OF SEC 64A(1) OF THE BANKRUPTCY ACT IN ANY
DISTRIBUTION OF ASSETS FROM THE ESTATE.  IN THE PRESENT CASE, ON THE
OTHER HAND, THE PENALTIES WERE IMPOSED SOLELY BECAUSE OF THE TRUSTEE'S
FAILURE TO FILE TIMELY RETURNS FOR THE TAXES INCURRED DURING THE
CHAPTER XI ARRANGEMENT PERIOD.  (FN29)  NO LEGITIMATE INTEREST WOULD BE
SERVED BY PERMITTING THE TRUSTEE TO ESCAPE THE UNBURDENSOME
RESPONSIBILITY OF MERELY FILING THE RETURNS AND THEREBY NOTIFYING THE
UNITED STATES OF THE TAXES THAT ARE DUE.  WE THEREFORE AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS WITH REGARD TO THE LIABILITY OF THE
TRUSTEE FOR THE PENALTIES IN QUESTION.  (FN30) 

FOR THE REASONS STATED, THE JUDGMENT OF THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT IS AFFIRMED IN PART AND REVERSED IN PART, AND THE CASE IS
REMANDED TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  INTERNAL REVENUE CODE OF 1954, SEC 3402, 26 U.S.C. SEC 3402
(1964 ED.). 

FN2  INTERNAL REVENUE CODE OF 1954, SEC 3102, 26 U.S.C. SEC 3102
(1964 ED.).  SEE ALSO INTERNAL REVENUE CODE OF 1954, SEC 3111, 26
U.S.C. SEC 3111 (1964 ED.). 

FN3  INTERNAL REVENUE CODE OF 1954, SEC 4231(6), 26 U.S.C. SEC
4231(6) (1964 ED.). 

FN4  INTERNAL REVENUE CODE OF 1954, SEC 3301, 26 U.S.C. SEC 3301
(1964 ED.). 

FN5  SEE SEC 6651(A) OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C.
SEC 6651(A) (1964 ED.), WHICH PROVIDES: 

"ADDITION TO THE TAX. 

"IN CASE OF FAILURE TO FILE ANY RETURN  ...  ON THE DATE PRESCRIBED
THEREFOR (DETERMINED WITH REGARD TO ANY EXTENSION OF TIME FOR FILING),
UNLESS IT IS SHOWN THAT SUCH FAILURE IS DUE TO REASONABLE CAUSE AND NOT
DUE TO WILLFUL NEGLECT, THERE SHALL BE ADDED TO THE AMOUNT REQUIRED TO
BE SHOWN AS TAX ON SUCH RETURN 5 PERCENT OF THE AMOUNT OF SUCH TAX IF
THE FAILURE IS FOR NOT MORE THAN 1 MONTH, WITH AN ADDITIONAL 5 PERCENT
FOR EACH ADDITIONAL MONTH OR FRACTION THEREOF DURING WHICH SUCH FAILURE
CONTINUES, NOT EXCEEDING 25 PERCENT IN THE AGGREGATE." 

THE MAXIMUM PENALTY OF 25% WAS ASSESSED ON THE WITHHOLDING, CABARET,
AND SOCIAL SECURITY TAXES, AND A 15% PENALTY WAS ASSESSED ON THE
PAYROLL TAX.  NO QUESTION IS RAISED IN THIS CASE CONCERNING THE
STATUTORY REQUIREMENT OF WILLFULNESS. 

FN6  SEE SEC 6601(A) OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C.
SEC 6601(A) (1964 ED.), WHICH PROVIDES: 

"GENERAL RULE. 

"IF ANY AMOUNT OF TAX IMPOSED BY THIS TITLE (WHETHER REQUIRED TO BE
SHOWN ON A RETURN, OR TO BE PAID BY STAMP OR BY SOME OTHER METHOD) IS
NOT PAID ON OR BEFORE THE LAST DATE PRESCRIBED FOR PAYMENT, INTEREST ON
SUCH AMOUNT AT THE RATE OF 6 PERCENT PER ANNUM SHALL BE PAID FOR THE
PERIOD FROM SUCH LAST DATE TO THE DATE PAID." 

FN7  THE REFEREE DID IN FACT ALLOW PART OF THE GOVERNMENT'S CLAIM FOR
INTEREST, REPRESENTING THE PORTION THAT HAD ACCRUED TO THE DATES THE
RESPECTIVE TAXES WERE ASSESSED AGAINST THE BANKRUPT CORPORATION.  THE
TRUSTEE SOUGHT NO REVIEW OF THIS ANOMALOUS ASPECT OF THE REFEREE'S
ORDER, AND THE ALLOWANCE OF THIS PORTION OF THE INTEREST IS NOT AN
ISSUE IN THIS CASE.  NOR DID THE TRUSTEE CHALLENGE THE REFEREE'S
ALLOWANCE OF THE PRINCIPAL OF THE TAXES AS AN EXPENSE OF
ADMINISTRATION.  SEE DAYTON V. STANARD, 241 U.S. 588; MICHIGAN V.
MICHIGAN TRUST CO., 286 U.S. 334; IN RE LAMBERTVILLE RUBBER CO., 111
F.2D 45 (C.A. 3D CIR.); IN RE COLUMBIA RIBBON CO., 117 F.2D 999 (C.A.
3D CIR.); MCCOLGAN V. MAIER BREWING CO., 134 F.2D 385 (C.A. 9TH CIR.);
3 COLLIER ON BANKRUPTCY 2088 (14TH ED. 1964). 

FN8  UNITED STATES V. KALISHMAN, 346 F.2D 514. 

FN9  CF. THOMAS V. WESTERN CAR CO., 149 U.S. 95, 116-117.  IT IS
CLEAR THAT THE INTEREST-BEARING QUALITY OF THE DEBT IS SUSPENDED,
RATHER THAN EXTINGUISHED, BY THE FILING OF A PETITION IN BANKRUPTCY. 
IN CERTAIN CIRCUMSTANCES NOT HERE RELEVANT, THE ACCRUAL OF INTEREST MAY
CONTINUE DURING THE PERIOD OF BANKRUPTCY ADMINISTRATION.  CF.  BRUNING
V. UNITED STATES, 376 U.S. 358; 3 COLLIER ON BANKRUPTCY 1858 ET SEQ.
(14TH ED.  1964).  SEE 2 BLACKSTONE, COMMENTARIES *488 (COOLEY ED.
1899). 

FN10  THE DECISION OF THE COURT IN NEW YORK V. SAPER, 336 U.S. 328,
REFLECTED AN ASSIMILATION OF TAX DEBTS TO THE STATUS OF OTHER DEBTS IN
BANKRUPTCY.  AT THE TIME SEXTON V. DREYFUS, 219 U.S. 339, WAS DECIDED,
TAXES INCURRED BEFORE BANKRUPTCY ENJOYED A HIGHLY PREFERRED STATUS IN
THE SUCCEEDING BANKRUPTCY LIQUIDATION.  THUS, SEC 64A OF THE BANKRUPTCY
ACT OF 1898, 30 STAT. 563, GRANTED AN ABSOLUTE PRIORITY TO CLAIMS FOR
TAXES AND IMPOSED AN AFFIRMATIVE DUTY ON THE TRUSTEE IN BANKRUPTCY TO
SEEK OUT AND ASCERTAIN THE AMOUNT OF TAXES OWED AND TO OBTAIN AN ORDER
FROM THE BANKRUPTCY COURT FOR PAYMENT.  SEE NEW YORK V. SAPER, 336 U.S.
328, 333.  AS A CONCOMITANT OF THEIR ABSOLUTE PRIORITY, TAX CLAIMS WERE
PERMITTED TO ACCUMULATE INTEREST EVEN AFTER THE DATE THE PETITION IN
BANKRUPTCY WAS FILED.  SEE IN RE KALLAK, 147 F. 276 (D.C.D.N.D.);
UNITED STATES V. CHILDS, 266 U.S. 304.  IN 1938, HOWEVER, CONGRESS
AMENDED THE BANKRUPTCY ACT BY REDUCING TAX DEBTS TO THE STATUS OF A
FOURTH PRIORITY, 52 STAT. 874, 11 U.S.C.  SEC 104(A) (1964 ED.), AND BY
REQUIRING TAX CLAIMS TO BE PROVED IN THE BANKRUPTCY PROCEEDING LIKE
ORDINARY DEBTS, 52 STAT. 867, 11 U.S.C. SEC 93(N) (1964 ED.).  CF. ACT
OF MAY 27, 1926, C. 406, SEC 15, 44 STAT. 666; WURZEL, TAXATION DURING
BANKRUPTCY LIQUIDATION, 55 HARV. L. REV. 1141, 1145-1146.  IN SAPER,
THE COURT HELD THAT, IN THE LIGHT OF THESE AMENDMENTS, TAX DEBTS HAD
BECOME SUFFICIENTLY CLOTHED WITH THE CHARACTERISTICS OF OTHER
BANKRUPTCY DEBTS TO JUSTIFY THE APPLICATION OF THE GENERAL RULE IN
SEXTON TO SUSPEND THE ACCRUAL OF INTEREST ON SUCH CLAIMS ON THE DATE
THE PETITION IN BANKRUPTCY WAS FILED. 

FN11  AS MR. JUSTICE HOLMES STATED WITH REGARD TO INTEREST ON A
SECURED DEBT IN SEXTON V. DREYFUS, 219 U.S. 339, 344-345: 

"THE RULE IS NOT UNREASONABLE WHEN CLOSELY CONSIDERED.  IT SIMPLY
FIXES THE MOMENT WHEN THE AFFAIRS OF THE BANKRUPT ARE SUPPOSED TO BE
WOUND UP.  IF, AS IN A WELL KNOWN ILLUSTRATION OF CHIEF JUSTICE SHAW'S,
PARKS V. BOSTON, 15 PICK.  198, 208, THE WHOLE MATTER COULD BE SETTLED
IN A DAY BY A PIE-POWDER COURT, THE SECURED CREDITOR WOULD BE CALLED
UPON TO SELL OR HAVE HIS SECURITY VALUED ON THE SPOT, WOULD RECEIVE A
DIVIDEND UPON THAT FOOTING, WOULD SUFFER NO INJUSTICE, AND COULD NOT
COMPLAIN." 

FN12  SEE AMERICAN IRON & STEEL MANUFACTURING CO. V. SEABOARD AIR
LINE RAILWAY, 233 U.S. 261, A CASE OF EQUITY RECEIVERSHIP, WHERE THE
COURT STATED THAT THE GENERAL RULE BARRING POST-PETITION INTEREST ON
PRE-PETITION CLAIMS IS NOT BASED ON THE FACT THAT THE CLAIMS "HAD LOST
THEIR INTEREST-BEARING QUALITY DURING THAT PERIOD, BUT IS A NECESSARY
AND ENFORCED RULE OF DISTRIBUTION, DUE TO THE FACT THAT IN CASE OF
RECEIVERSHIPS THE ASSETS ARE GENERALLY INSUFFICIENT TO PAY DEBTS IN
FULL.  IF ALL CLAIMS WERE OF EQUAL DIGNITY AND ALL BORE THE SAME RATE
OF INTEREST, FROM THE DATE OF THE RECEIVERSHIP TO THE DATE OF FINAL
DISTRIBUTION, IT WOULD BE IMMATERIAL WHETHER THE DIVIDEND WAS
CALCULATED ON THE BASIS OF THE PRINCIPAL ALONE OR OF PRINCIPAL AND
INTEREST COMBINED.  BUT SOME OF THE DEBTS MIGHT CARRY A HIGH RATE AND
SOME A LOW RATE, AND HENCE INEQUALITY WOULD RESULT IN THE PAYMENT OF
INTEREST WHICH ACCRUED DURING THE DELAY INCIDENT TO COLLECTING AND
DISTRIBUTING THE FUNDS.  AS THIS DELAY WAS THE ACT OF THE LAW, NO ONE
SHOULD THEREBY GAIN AN ADVANTAGE OR SUFFER A LOSS.  FOR THAT AND LIKE
REASONS, IN CASE FUNDS ARE NOT SUFFICIENT TO PAY CLAIMS OF EQUAL
DIGNITY, THE DISTRIBUTION IS MADE ONLY ON THE BASIS OF THE PRINCIPAL OF
THE DEBT."  233 U.S., AT 266.  SEE ALSO VANSTON BONDHOLDERS PROTECTIVE
COMMITTEE V. GREEN, 329 U.S. 156, 164:  "MOREOVER, DIFFERENT CREDITORS
WHOSE CLAIMS BORE DIVERSE INTEREST RATES OR WERE PAID BY THE BANKRUPTCY
COURT ON DIFFERENT DATES WOULD SUFFER NEITHER GAIN NOR LOSS CAUSED
SOLELY BY DELAY."  THIS EQUITABLE DOCTRINE WAS ITSELF THE PRODUCT OF
COMPROMISE BETWEEN THE INTERESTS OF COMPETING CREDITORS; IT WAS AT
LEAST ARGUABLE THAT THE INTERVENTION OF BANKRUPTCY SHOULD HAVE
PROHIBITED PAYMENT EVEN OF PRE-PETITION INTEREST ON DEBTS UNTIL THE
PRINCIPAL OF THE DEBTS WAS PAID.  SEE 3 COLLIER ON BANKRUPTCY 1855-1856
(14TH ED. 1964). 

FN13  NOTHING IN THE GENERAL LANGUAGE OF SEC 378(2) OF THE BANKRUPTCY
ACT, 11 U.S.C.  SEC 778(2) (1964 ED.), WHICH PROVIDES THAT A BANKRUPTCY
PROCEEDING SUPERSEDING A CHAPTER XI PROCEEDING "SHALL BE CONDUCTED, SO
FAR AS POSSIBLE, IN THE SAME MANNER AND WITH LIKE EFFECT AS IF A
VOLUNTARY PETITION FOR ADJUDICATION IN BANKRUPTCY HAD BEEN FILED AND A
DECREE OF ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE PETITION
UNDER THIS CHAPTER (XI) WAS FILED," REQUIRES US TO COLLAPSE THESE
IMPORTANT DISTINCTIONS BETWEEN AN ARRANGEMENT PROCEEDING AND A
SUPERSEDING BANKRUPTCY AND TO TREAT THE TAXES IN QUESTION HERE AS
THOUGH THEY WERE INCURRED IN THE BANKRUPTCY PROCEEDING ITSELF. 

FN14  UNITED STATES V. GENERAL ENGINEERING & MFG. CO. 188 F.2D 80
(C.A. 8TH CIR.), AFF'D, 342 U.S. 912.  CF. MASSACHUSETTS V. THOMPSON,
190 F.2D 10 (C.A. 1ST CIR.), CERT. DENIED, 342 U.S. 918.  THE SAME RULE
HAS BEEN APPLIED TO SUSPEND INTEREST BOTH IN CORPORATE REORGANIZATION
PROCEEDINGS UNDER CHAPTER X OF THE BANKRUPTCY ACT, UNITED STATES V.
EDENS, 189 F.2D 876 (C.A. 4TH CIR.), AFF'D, 342 U.S. 912, AND IN
ASSIGNMENTS FOR THE BENEFIT OF CREDITORS, MATTER OF PAVONE TEXTILE
CORP., 302 N.Y. 206, 97 N.E.2D 755, AFF'D SUB NOM. UNITED STATES V.
BLOOM, 342 U.S. 912.  IN ACCORD WITH THESE DECISIONS, THE UNITED STATES
FILED NO CLAIM IN THE PRESENT CASE FOR INTEREST ACCRUING IN THE
ARRANGEMENT AND LIQUIDATING BANKRUPTCY PERIODS ON TAXES INCURRED BEFORE
THE CHAPTER XI PETITION WAS FILED.    FN15  CF. MASSACHUSETTS V.
THOMPSON, 190 F.2D 10, 11 (DISSENTING OPINION OF JUDGE WOODBURY). 
SPECIFICALLY CONTEMPLATES THE CREATION OF INTEREST-BEARING DEBTS DURING
THE ARRANGEMENT PERIOD.  SEE ALSO WEINTRAUB & LEVIN, PRACTICAL GUIDE TO
BANKRUPTCY AND DEBTOR RELIEF 185-186 (1964). 

FN16  ON THE BASIS OF STATISTICS IN THE BRIEF OF THE UNITED STATES
SUBMITTED IN THIS CASE, IT APPEARS THAT SIGNIFICANT NUMBERS OF CHAPTER
XI PROCEEDINGS TERMINATE IN BANKRUPTCY.  FOR EXAMPLE, IN THE FISCAL
YEAR ENDING JUNE 30, 1964, 1,088 CHAPTER XI PROCEEDINGS WERE FILED, AND
A DEBTOR WAS ADJUDICATED A BANKRUPT IN 604 SUCH PROCEEDINGS THAT HAD
BEEN INITIATED IN 1964 OR PRIOR YEARS. 

FN17  SECTION 64A OF THE BANKRUPTCY ACT, 11 U.S.C. SEC 104(A),
PROVIDES: 

"DEBTS WHICH HAVE PRIORITY. 

"(A)  THE DEBTS TO HAVE PRIORITY, IN ADVANCE OF THE PAYMENT OF
DIVIDENDS TO CREDITORS, AND TO BE PAID IN FULL OUT OF BANKRUPT ESTATES,
AND THE ORDER OF PAYMENT, SHALL BE (1) THE COSTS AND EXPENSES OF
ADMINISTRATION, INCLUDING THE ACTUAL AND NECESSARY COSTS AND EXPENSES
OF PRESERVING THE ESTATE SUBSEQUENT TO FILING THE PETITION  ...  .
WHERE AN ORDER IS ENTERED IN A PROCEEDING UNDER ANY CHAPTER OF THIS
TITLE DIRECTING THAT BANKRUPTCY BE PROCEEDED WITH, THE COSTS AND
EXPENSES OF ADMINISTRATION INCURRED IN THE ENSUING BANKRUPTCY
PROCEEDING SHALL HAVE PRIORITY IN ADVANCE OF PAYMENT OF THE UNPAID
COSTS AND EXPENSES OF ADMINISTRATION, INCLUDING THE ALLOWANCES PROVIDED
FOR IN SUCH CHAPTER, INCURRED IN THE SUPERSEDED PROCEEDING  ...  (4)
TAXES LEGALLY DUE AND OWING BY THE BANKRUPT TO THE UNITED STATES OR ANY
STATE OR ANY SUBDIVISION THEREOF  ...  ." 

FN18  SEE NOTE 17, SUPRA.  THE FINAL SENTENCE OF SEC 64A(1) WAS ADDED
BY CONGRESS IN 1952, 66 STAT. 426, AS AMENDED, 76 STAT. 571. 

FN19  THE GENERAL PRINCIPLE RESTRICTING POST-BANKRUPTCY INTEREST TO
THE RELEVANT TIME PERIOD IN WHICH THE UNDERLYING OBLIGATION WAS
INCURRED IS ALSO CONSISTENT WITH SEC 63A(1) OF THE BANKRUPTCY ACT, 11
U.S.C. SEC 103(A)(1) (1964 ED.)(INTEREST ON JUDGMENTS AND WRITTEN
INSTRUMENTS ALLOWED ONLY TO DATE OF FILING OF PETITION IN BANKRUPTCY;
REBATE OF INTEREST REQUIRED IF DEBT WAS NOT THEN PAYABLE AND DID NOT
BEAR INTEREST), AND SEC 63A(5), 11 U.S.C.  SEC 103(A)(5) (1964
ED.)(INTEREST ALLOWED ONLY TO DATE OF PETITION ON DEBTS REDUCED TO
JUDGMENT AFTER BANKRUPTCY).  COMPARE MISSOURI V. EARHART, 111 F.2D 992,
996-997 (C.A. 8TH CIR.). 

FN20  SEE EX PARTE BENNET, 2 ATK.  526, 527; NEW YORK V. SAPER, 336
U.S. 328, 334; BRUNING V. UNITED STATES, 376 U.S. 358, 362; 3 COLLIER
ON BANKRUPTCY 1857 (14TH ED. 1964). 

FN21  "ANY OFFICERS AND AGENTS CONDUCTING ANY BUSINESS UNDER
AUTHORITY OF A UNITED STATES COURT SHALL BE SUBJECT TO ALL FEDERAL,
STATE AND LOCAL TAXES APPLICABLE TO SUCH BUSINESS TO THE SAME EXTENT AS
IF IT WERE CONDUCTED BY AN INDIVIDUAL OR CORPORATION."  28 U.S.C. SEC
960 (1964 ED.). 

FN22  SECTION 7501(A) OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C.
SEC 7501(A) (1964 ED.), PROVIDES: 

"GENERAL RULE. 

"WHENEVER ANY PERSON IS REQUIRED TO COLLECT OR WITHHOLD ANY INTERNAL
REVENUE TAX FROM ANY OTHER PERSON AND TO PAY OVER SUCH TAX 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." 

CF. CITY OF NEW YORK V. RASSNER, 127 F.2D 703 (C.A.2D CIR.); UNITED
STATES V. SAMPSELL, 193 F.2D 154 (C.A. 9TH CIR.); HERCULES SERVICE
PARTS CORP. V. UNITED STATES, 202 F.2D 938 (C.A. 6TH CIR.); IN RE
AIRLINE-ARISTA PRINTING CORP., 267 F.2D 333 (C.A.2D CIR.); 3 COLLIER ON
BANKRUPTCY 2066, N. 27 (14TH ED. 1964). 

FN23  THE RECORD INDICATES THAT THE ASSETS OF THE BANKRUPT ESTATE ARE
SUFFICIENT TO PAY ALL EXPENSES ENTITLED TO PRIORITY UNDER SEC 64A(1) OF
THE BANKRUPTCY ACT, AND THE UNITED STATES HAS NOT SOUGHT TO CLAIM THE
PRINCIPAL OF THE TAXES IN QUESTION AS A TRUST FUND.  SEE NOTE 7,
SUPRA. 

FN24  WE THUS HAVE NO OCCASION TO DETERMINE WHETHER IN ANY EVENT
INTEREST, WHICH WOULD NECESSARILY BE DERIVED FROM THE ASSETS OF THE
BANKRUPT ESTATE, COULD ACCEDE TO THE PRINCIPAL OF SUCH A TRUST FUND. 

FN25  SEE NOTE 21, SUPRA. 

FN26  CF. IN RE CHICAGO & N.W.R. CO., 119 F.2D 971 (C.A. 7TH CIR.).
SEE ALSO SEC 6659(A)(1) OF THE INTERNAL REVENUE CODE, 26 U.S.C. SEC
6659(A)(1) (1964 ED.), WHICH PROVIDES THAT PENALTIES ON TAXES "SHALL BE
ASSESSED, COLLECTED, AND PAID IN THE SAME MANNER AS TAXES." 

FN27  THE LIABILITY OF THE TRUSTEE FOR THE PRINCIPAL OF THESE TAXES
RESULTS FROM HIS SUCCESSION IN INTEREST TO THE TITLE OF THE DEBTOR IN
POSSESSION, WHO, AS AN OFFICER OF THE BANKRUPTCY COURT, WAS CLEARLY
SUBJECT TO SUCH TAXES UNDER THE PROVISIONS OF 28 U.S.C.  SEC 960,
SUPRA, NOTE 21.  AS THE SUCCESSOR IN INTEREST, THE TRUSTEE IS BOUND BY
ALL AUTHORIZED ACTS OF THE DEBTOR IN POSSESSION.  IN RE WIL-LOW
CAFETERIAS, 111 F.2D 429 (C.A.2D CIR.); 8 COLLIER ON BANKRUPTCY 965
(14TH ED. 1964).  CF. SHAPIRO, TAX EFFECTS OF BANKRUPTCY, 1959 SO.
CALIF. TAX INST.  587, 588-591.  IN GENERAL, THE TRUSTEE HIMSELF IS
UNDER A DUTY TO SEEK OUT AND PAY TAXES ACCRUING AGAINST THE BANKRUPT
ESTATE DURING THE BANKRUPTCY ITSELF.  SEE 2 COLLIER ON BANKRUPTCY 1752
(14TH ED. 1964).  CF. INTERNAL REVENUE CODE OF 1954, SEC 6012(B)(3)
(TRUSTEE REQUIRED TO MAKE RETURNS OF INCOME FOR BANKRUPT CORPORATION
WHETHER OR NOT THE BUSINESS OF THE CORPORATION IS BEING OPERATED). 
UNLIKE THE SITUATION IN PART I, SUPRA, THE PRESENT QUESTION INVOLVES NO
MAJOR INEQUITIES BETWEEN CREDITORS OF THE SAME CLASS.  THE DOMINANT
ASPECT HERE, THEREFORE, IS THE CONTINUITY OF INTEREST BETWEEN THE
DEBTOR IN POSSESSION AND THE TRUSTEE AS OFFICERS OF THE BANKRUPTCY
COURT.  THE CRUCIAL FACT IN THE PRESENT CASE, SO FAR AS THE OBLIGATION
TO FILE THE TAX RETURNS IS CONCERNED, IS THAT THE TAXES WERE IN FACT
INCURRED DURING PROCEEDINGS UNDER THE BANKRUPTCY ACT.  THUS, NOTHING
SAID IN THIS OPINION MAY BE TAKEN AS IMPOSING ANY OBLIGATION UPON A
TRUSTEE IN BANKRUPTCY TO FILE RETURNS FOR TAXES INCURRED BEFORE THE
INITIATION OF PROCEEDINGS UNDER THE ACT.  CF. I.T. 3959, 1949-1 CUM.
BULL.  90 (TRUSTEE NOT AUTHORIZED TO FILE FEDERAL INCOME TAX RETURNS ON
BEHALF OF A BANKRUPT INDIVIDUAL). 

FN28  SECTION 6011(A) OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C.
SEC 6011(A) (1964 ED.), PROVIDES: 

"GENERAL RULE. 

"WHEN REQUIRED BY REGULATIONS PRESCRIBED BY THE SECRETARY OR HIS
DELEGATE ANY PERSON MADE LIABLE FOR ANY TAX IMPOSED BY THIS TITLE, OR
FOR THE COLLECTION THEREOF, SHALL MAKE A RETURN OR STATEMENT ACCORDING
TO THE FORMS AND REGULATIONS PRESCRIBED BY THE SECRETARY OR HIS
DELEGATE  ...  ." 

SINCE IT IS CLEAR THAT UNDER SEC 6011(A) THE TRUSTEE HIMSELF WAS
REQUIRED TO FILE RETURNS FOR THE TAXES IN ISSUE, WE NEED NOT DETERMINE
WHETHER PENALTIES INCURRED BY THE DEBTOR IN POSSESSION MAY BE ASSESSED
AGAINST THE TRUSTEE.  SEE SECS 57(J) AND 381(3) OF THE BANKRUPTCY ACT,
11 U.S.C. SECS 93(J), 781(3) (1964 ED.); BOTELER V. INGELS, 308 U.S.
57, 59-60.  NOR IS THERE ANY ISSUE RAISED IN THIS CASE CONCERNING THE
SUSCEPTIBILITY TO TAX UNDER 28 U.S.C. SEC 960 OF A TRUSTEE WHOSE
ACTIVITIES DO NOT AMOUNT TO THE CONDUCT OF BUSINESS IN ANY MEANINGFUL
SENSE.  SEE UNITED STATES V. SAMPSELL, 266 F.2D 631 (C.A. 9TH CIR.); IN
RE LOEHR, 98 F. SUPP. 402 (D.C.E.D. WIS.); IN THE MATTER OF F.P.
NEWPORT CORP., LTD., 144 F. SUPP. 507 (D.C.S.D. CAL.). 

NOTHING IN SEC 6151 OF THE INTERNAL REVENUE CODE, 26 U.S.C. SEC 6151
(1964 ED.), WHICH OBLIGES THE PERSON REQUIRED TO FILE A RETURN TO PAY
THE TAX IN QUESTION, IMPOSES ANY OBLIGATION ON THE TRUSTEE OTHER THAN
IN HIS CAPACITY AS THE REPRESENTATIVE OF THE BANKRUPT ESTATE.  NOR IS
SEC 3467 OF THE REVISED STATUTES, 31 U.S.C. SEC 192 (1964 ED.),
APPLICABLE HERE.  IT IS WELL ESTABLISHED THAT THIS PROVISION, WHICH
IMPOSES A PERSONAL LIABILITY ON A TRUSTEE WHO DISTRIBUTES THE PROPERTY
OF A BANKRUPT ESTATE TO OTHER CREDITORS BEFORE SATISFYING THE DEBTS DUE
THE UNITED STATES, DOES NOT ALTER THE PRIORITIES ESTABLISHED BY SEC 64A
OF THE BANKRUPTCY ACT.  GUARANTEE CO. V. TITLE GUARANTY CO., 224 U.S.
152; UNITED STATES V. KAPLAN, 74 F.2D 664 (C.A.2D CIR.).  CF. KING V.
UNITED STATES, 379 U.S. 329.  COMPARE BOTELER V. INGELS, 308 U.S. 57,
60, N. 6; IN RE LAMBERTVILLE RUBBER CO., 111 F.2D 45, 49-50 (C.A. 3D
CIR.). 

FN29  IT IS TRUE THAT UNDER THE GENERAL LANGUAGE OF SEC 6151 OF THE
CODE, THE DATE ON WHICH THE RETURN MUST BE FILED IS ALSO THE DATE ON
WHICH THE TAX IS REQUIRED TO BE PAID.  IT IS ONLY THE FILING
REQUIREMENT, HOWEVER, THAT IS ACCOMPANIED BY THE SANCTION OF A
STATUTORY PENALTY.  INTERNAL REVENUE CODE OF 1954, SEC 6651(A), SUPRA,
NOTE 5.  THE SOLE CONCOMITANT OF THE FAILURE TO PAY THE TAXES IS THE
ACCUMULATION OF INTEREST ON THE UNPAID AMOUNT.  HOWEVER, AS WE HAVE
HELD IN PART I, SUPRA, NO  LIABILITY FOR SUCH INTEREST ATTACHES TO THE
TRUSTEE IN THE CIRCUMSTANCES OF THE PRESENT CASE.  SEE ALSO REV. RUL.
56-158, 1956-1 CUM. BULL.  596 (PENALTY ASSESSED FOR LATE FILING OF
RETURN IN ASSIGNMENT FOR THE BENEFIT OF CREDITORS PROCEEDING). 

FN30  THE PENALTIES INVOLVED IN THIS CASE WERE INCURRED BY THE
TRUSTEE AFTER THE PETITION FOR BANKRUPTCY WAS FILED.  THEREFORE, IN
LIGHT OF THE CONSIDERATIONS DISCUSSED IN PART I, SUPRA, THE TRUSTEE IS
LIABLE FOR INTEREST ON THE PENALTIES INCURRED BECAUSE OF HIS FAILURE TO
FILE THE RETURNS.   SINCE WE HAVE DETERMINED THAT THE TRUSTEE IS LIABLE
IN ANY EVENT FOR PENALTIES ON ALL OF THE TAXES HERE IN QUESTION, WE
HAVE NO OCCASION TO PASS UPON THE GOVERNMENT'S ALTERNATIVE CLAIM THAT
THE PENALTIES ON THE WITHHOLDING AND CABARET TAXES MAY BE RECOVERED AS
PART OF A TRUST FUND UNDER SEC 7501(A) OF THE INTERNAL REVENUE CODE,
SUPRA, NOTE 22. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

RECOGNIZING THE CASE TO BE DIFFICULT, I WOULD AFFIRM THE COURT OF
APPEALS' DECISION TO ALLOW BOTH THE INTEREST AND THE PENALTY AS
ADMINISTRATION EXPENSES.  ON BOTH POINTS, I THINK THERE ARE FAIR POLICY
ARGUMENTS WHICH CAN BE MUSTERED TO SUPPORT EITHER RESULT.  ON BALANCE,
IT SEEMS TO ME THAT THE ENTIRE PERIOD STARTING WITH THE CHAPTER XI
OPERATION AND CARRYING THROUGH THE BANKRUPTCY PROCEEDING SHOULD BE
REGARDED AS A CONTINUUM OF COURT ADMINISTRATION.  SEE ESPECIALLY SEC
378(2) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC 778(2) (1964 ED.).  FROM
THIS I THINK IT FOLLOWS THAT INTEREST SHOULD NOT BE STOPPED WHEN
BANKRUPTCY SUCCEEDS THE CHAPTER XI PERIOD, AND THAT THE COURT-APPOINTED
TRUSTEE DOES FALL HEIR TO THE RESPONSIBILITIES OF THE COURT-SUPERVISED
DEBTOR IN POSSESSION TO FILE RETURNS. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
FORTAS JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH ALL BUT PART II OF THE COURT'S OPINION AND DISSENT AS TO
THAT PART. 

THE ISSUE IS WHETHER A PENALTY FOR THE TRUSTEE'S FAILURE TO FILE
WITHHOLDING, SOCIAL SECURITY AND CABARET TAX RETURNS IS PAYABLE OUT OF
THE ASSETS OF THE ESTATE.  THE COURT HOLDS THAT IT IS, EVEN THOUGH THE
ACTS GIVING RISE TO TAX LIABILITY OCCURRED DURING THE OPERATION OF THE
BUSINESS BY THE DEBTOR IN POSSESSION PRIOR TO THE TRUSTEE'S ASSUMPTION
OF OFFICE.  ALTHOUGH THE COURT CONCEDES THAT THE TRUSTEE IS NOT
OBLIGATED TO PAY THE TAX EXCEPT AT THE TIME AND WITHIN THE LIMITS
PROVIDED BY THE BANKRUPTCY ACT, HE MUST NEVERTHELESS UNDERTAKE THE
SOMETIMES DIFFICULT TASK OF ASSEMBLING ALL THE INFORMATION NECESSARY TO
FILE THE TAX RETURNS THAT THE DEBTOR IN POSSESSION WOULD HAVE HAD TO
FILE HAD BANKRUPTCY NOT OCCURRED.  FOR SEVERAL REASONS I DO NOT AGREE. 

1.  THE BANKRUPTCY LAWS DO NOT FAVOR SADDLING AN ESTATE WITH
PENALTIES.  SECTION 57J STATES THAT "DEBTS OWING TO THE UNITED STATES
OR TO ANY STATE OR ANY SUBDIVIDION THEREOF AS A PENALTY OR FORFEITURE
SHALL NOT BE ALLOWED ...  ,"  BANKRUPTCY ACT, SEC 57J, AS AMENDED, 11
U.S.C. SEC 93(J) (1964 ED.), AND THIS COURT HAS HELD THE SECTION
APPLICABLE TO A FEDERAL TAX CLAIM EVEN WHERE IT IS SECURED BY A LIEN. 
SIMONSON V. GRANQUIST, 369 U.S. 38.  THAT CASE REAFFIRMED THE "BROAD
AIM OF THE ACT TO PROVIDE FOR THE CONSERVATION OF THE ESTATES OF
INSOLVENTS TO THE END THAT THERE MAY BE AS EQUITABLE A DISTRIBUTION OF
ASSETS AS IS CONSISTENT WITH THE TYPE OF CLAIMS INVOLVED  ...  .
ENFORCEMENT OF PENALTIES AGAINST THE ESTATES OF BANKRUPTS, HOWEVER,
WOULD SERVE NOT TO PUNISH THE DELINQUENT TAXPAYERS, BUT RATHER THEIR
ENTIRELY INNOCENT CREDITORS."  ID., AT 40-41.  IT IS TRUE THAT SEC 57J
DEALS WITH PENALTIES CLAIMED AGAINST THE DEBTOR AND HERE THE PENALTY IS
CLAIMED TO ARISE FROM THE TRUSTEE'S ALLEGED DEFAULT.  BUT THE GENERAL
POLICY AGAINST DILUTING THE CLAIMS OF CREDITORS BY CHARGING PENALTIES
AGAINST THE ESTATE - VERY SIMILAR TO THE POLICY AGAINST ALLOWING
INTEREST DURING BANKRUPTCY WHICH THE COURT RIGHTLY MAKES MUCH OF IN
THIS CASE - REQUIRES AT THE VERY LEAST WEIGHTY AND PERSUASIVE REASONS
FOR IMPOSING UPON THE ESTATE AND THE OTHER CREDITORS A PENALTY FOR THE
TRUSTEE'S FAILURE TO FILE A RETURN RELATING TO THE PREBANKRUPTCY
OPERATIONS OF THE BUSINESS.   IF THE TAX RETURN DATE IN THIS CASE HAD
FALLEN ON THE DAY BEFORE BANKRUPTCY, SEC 57J WOULD BAR THE PENALTY.  I
SEE LITTLE SENSE IN A RULE WHICH WOULD ALLOW IT IF THE RETURN DATE IS
THE DAY AFTER BANKRUPTCY. 

2.  THE COURT RESTS THE TRUSTEE'S OBLIGATION TO FILE A RETURN SOLELY
ON SEC 6011(A) OF THE INTERNAL REVENUE CODE - "ANY PERSON MADE LIABLE
FOR ANY TAX IMPOSED BY THIS TITLE, OR FOR THE COLLECTION THEREOF, SHALL
MAKE A RETURN  ...  ."  SECTION 6151, PUTTING THE MATTER THE OTHER WAY,
IMPOSES AN OBLIGATION TO PAY THE TAX ON THOSE WHO FILE A RETURN.  THE
COURT SAYS IT IS CONCEDED THE TRUSTEE IS LIABLE TO PAY THE TAXES
INCURRED BY THE DEBTOR IN POSSESSION AND THEREFORE THE TRUSTEE MUST
FILE A RETURN.  BUT THE COURT OBVIOUSLY DOES NOT MEAN THE TRUSTEE IS
"LIABLE" TO PAY IN THE SENSE THAT HE MUST PAY CLAIMS AGAINST THE
ESTATE.  FOR IN THE TYPICAL BANKRUPTCY CASE WHERE NO CHAPTER XI
PROCEEDING HAS INTERVENED - THE FAILURE OF AN INDIVIDUAL PROPRIETORSHIP
FOR EXAMPLE - THE TRUSTEE IS NOT OBLIGATED TO, INDEED IS NOT AUTHORIZED
TO, FILE THE INDIVIDUAL'S RETURN EVEN THOUGH FEDERAL TAXES ARE ENTITLED
TO A CLASS 4 PRIORITY.  I.T. 3959, 1949-1 CUM. BULL.  90.  THE SALIENT
FACT IS THAT THE TRUSTEE'S GENERAL OBLIGATION TO PAY CLAIMS, INCLUDING
TAX CLAIMS, TAKES EFFECT ONLY WHEN AND IF THEY ARE ALLOWED AND
DISTRIBUTION IS ORDERED.  ANY CLAIMED LIABILITY TO PAY A TAX AT ANY
EARLIER TIME GIVES WAY TO THE PRIORITY PROVISIONS OF SEC 64A, AND MERE
LIABILITY TO PAY CLAIMS IS NOT THE TYPE OF LIABILITY ENVISAGED BY SEC
6011(A).  IF IT WERE, THE BANKRUPTCY TRUSTEE IN THE ORDINARY PROCEEDING
NOT FOLLOWING AN ABORTIVE CHAPTER XI ARRANGEMENT COULD NOT ESCAPE THE
RULE ANNOUNCED TODAY. 

ACCORDINGLY, THE RELIANCE OF THE COURT IS NOT ON THE TRUSTEE'S
GENERAL LIABILITY TO PAY CLAIMS BUT ON THE SUPPOSED "CRUCIAL FACT" THAT
THE TAXES HERE IN QUESTION WERE INCURRED DURING PROCEEDINGS UNDER THE
BANKRUPTCY ACT WITH THE TRUSTEE BEING SUCCESSOR IN INTEREST TO THE
DEBTOR IN POSSESSION, WHO ALSO ACTED AS AN OFFICER OF THE COURT.  BUT
HAD THE DEBTOR IN POSSESSION CONTINUED TO OPERATE THE BUSINESS, HIS
LIABILITY TO FILE A RETURN AND TO PAY THE TAXES HERE IN QUESTION WOULD
HAVE BEEN CLEAR UNDER 28 U.S.C. SEC 960 (1964 ED.), AND HE COULD HAVE
BEEN SUBJECTED TO PENALTIES FOR ANY DEFAULT, BOTELER V. INGELS, 308
U.S. 57.  WITH RESPECT TO THE TRUSTEE, HOWEVER, THE COURT DISCLAIMS ANY
HOLDING THAT HIS LIABILITY ARISES UNDER SEC 960, SEE ANTE, 693, N. 28,
AT 694, AND IT SEEMS ALSO TO DISAVOW ANY IMPLICATION THAT THE TRUSTEE
COULD BE PENALIZED FOR FAILURE TO PAY THESE TAXES AT THE TIME REQUIRED
BY THE CODE, AS DISTINGUISHED FROM FAILURE TO FILE THE RETURNS, ANTE,
N. 29 AND ACCOMPANYING TEXT.  SUCH DISCLAIMERS ARE ENTIRELY
APPROPRIATE.  FOR THE TRUTH OF THE MATTER IS THAT THE SUCCESSOR
LIABILITY OF THE TRUSTEE WHO SUCCEEDS A DEBTOR IN POSSESSION IS NO
DIFFERENT FROM THAT OF THE TRUSTEE WHO SUCCEEDS THE ORDINARY BANKRUPT,
EXCEPT THAT TAXES ACCRUING DURING THE ARRANGEMENT ARE DISTINGUISHED
FROM PRE-ARRANGEMENT TAXES IN THAT THEY ARE CLASSIFIED AS
ADMINISTRATIVE EXPENSES AND THUS ARE ESCALATED FROM A CLASS 4 TO A
CLASS 1 PRIORITY, ALTHOUGH RELEGATED TO AN INFERIOR POSITION WITH CLASS
1 AND HENCE PAYABLE ONLY IF THERE ARE SUFFICIENT ASSETS TO PAY PRIOR
EXPENSES.  IN EITHER INSTANCE THE TRUSTEE'S DUTY TO PAY IS REGULATED BY
SEC 64A AND IS A GENERAL OBLIGATION TO PAY CLAIMS AND ADMINISTRATIVE
EXPENSES NOT CONSTITUTING THE KIND OF LIABILITY ENVISAGED BY SEC
6011(A).  IN SUM, THERE IS NO BASIS IN LAW FOR TREATING THE DEBTOR IN
POSSESSION AND THE TRUSTEE AS ONE PERSON, AND THE COURT'S ERROR IS IN
MERGING TOGETHER TWO DISTINCT PERIODS OF THE ESTATE FOR PURPOSES OF
ASSESSING RESPONSIBILITY FOR FILING RETURNS WHEN IT QUITE CAREFULLY,
AND CORRECTLY, SEPARATED THEM FOR PURPOSES OF DETERMING LIABILITY TO
PAY INTEREST. 

3.  THERE MIGHT BE SOME GROUNDS FOR REJECTING THE GENERAL POLICY
AGAINST ALLOWING PENALTIES AGAINST BANKRUPT ESTATES IF THE FILING OF
THE RETURN BY THE TRUSTEE PERFORMED SOME CRITICAL FUNCTION OR WAS AT
LEAST SOMETHING MORE THAN AN EMPTY FORMALITY.  SECTION 58E OF THE
BANKRUPTCY ACT, 11 U.S.C. SEC 94(E) (1964 ED.), EXPRESSLY PROVIDES FOR
NOTICE TO THE INTERNAL REVENUE SERVICE OF THE FIRST MEETING OF
CREDITORS IN ALL BANKRUPTCY PROCEEDINGS AND FOR NOTICES TO ALL
SCHEDULED CREDITORS AT IMPORTANT STAGES OF THE PROCEEDING.  SEE ALSO 26
U.S.C. SEC 6036 (1964 ED.)(NOTICE OF QUALIFICATION OF TRUSTEE).  THERE
IS, THEREFORE, LITTLE CHANCE THAT THE GOVERNMENT WOULD NOT HAVE THE
OPPORTUNITY, FOR LACK OF NOTICE, TO FILE ITS CLAIM AS IT IS REQUIRED TO
DO IN AN ORDINARY CASE.  IN THE MATTER BEFORE US NOW, THE TAX CLAIMS
WERE CLEARLY SCHEDULED, THE UNITED STATES HAD AMPLE NOTICE AND IT HAD
NO TROUBLE WHATSOEVER IN FILING THE STATEMENT OF ADMINISTRATIVE EXPENSE
TO TAKE ADVANTAGE OF THE PRIORITY ACCORDED ADMINISTRATIVE ITEMS ARISING
IN THE PRIOR CHAPTER XI PROCEEDING. 

4.  NOR IS IT SO CLEAR THAT TO IMPOSE ON THE TRUSTEE THE OBLIGATION
OF FILING RETURNS WHICH THE DEBTOR IN POSSESSION WOULD HAVE FILED HAD
HE NOT BEEN ADJUDICATED A BANKRUPT IMPOSES ONLY AN INSUBSTANTIAL
BURDEN.  TRUSTEES ARE NORMALLY STRANGERS TO THE ESTATE, HAVE NOT
PARTICIPATED IN MAKING OR FILING THE SCHEDULES OF ASSETS AND
LIABILITIES AND, ALTHOUGH THEY MAY BE CREDITORS, AT THE OUTSET KNOW
LITTLE OR NOTHING ABOUT THE AFFAIRS OF THE BANKRUPT.  THEY NORMALLY DO
NOT EMPLOY ACCOUNTANTS, MANY TIMES DO NOT HAVE ATTORNEYS AND MORE OFTEN
THAN NOT DO NOT FORTHWITH UNDERTAKE THE WORK AND EFFORT NECESSARY TO
FILE A TAX RETURN.  SUCH A FILING IS A SERIOUS UNDERTAKING WITH
POSSIBLE REPERCUSSIONS AND IT IS NOT SOMETHING WHICH AN OFFICER OF THE
COURT CAN AFFORD LIGHTLY TO DISCHARGE.  IF THE UNITED STATES CLAIMS AN
AMOUNT DIFFERENT FROM THAT SCHEDULED, THE TRUSTEE OR HIS ATTORNEY MAY
WELL HAVE TO DELVE INTO THE FACTS AND GIVE SERIOUS CONSIDERATION TO THE
MATTER.  BUT I WOULD NOT REQUIRE A TRUSTEE AT THE VERY OUTSET OF HIS
DUTIES TO DETERMINE AT HIS PERIL WHETHER THERE ARE TAX RETURNS OF THE
DEBTOR TO BE FILED AND TO UNDERTAKE TO FILE THEM.  IT WOULD, OF COURSE,
BE IMPOSSIBLE TO DO SO ON SHORT NOTICE; AND IF THE RETURN DATE IS
WITHIN A FEW DAYS AFTER THE TRUSTEE'S APPOINTMENT, THE COURT'S RULE
WOULD HAVE UNTOWARD RESULTS.*  ABSENT SOME SHOWING OF A SPECIAL
FUNCTION TO BE SERVED BY THE FILING OF THE RETURN, THE WOODEN
APPLICATION OF SEC 6011(A) NEEDLESSLY PROLIFERATES THE DUTIES OF THE
ORDINARY BANKRUPTCY TRUSTEE. 

*EXTENSIONS OF TIME FOR WITHHOLDING TAX RETURNS ARE LIMITED TO A
MAXIMUM OF 15 DAYS.  MIM.  6157, 1947-2 CUM. BULL.  64. 

5.  BOTELER V. INGELS, 308 U.S. 57, DOES NOT RULE THIS CASE.  THERE
THE COURT FOUND AN OBLIGATION ON THE TRUSTEE TO PAY LICENSE TAXES ON
VEHICLES USED IN HIS OWN LIQUIDATING OPERATIONS.  GIVEN THIS OBLIGATION
ARISING OUT OF HIS OWN ACTIVITIES, HIS FAILURE TO PAY JUSTIFIED THE
IMPOSITION OF A PENALTY AND ITS PAYMENT FROM THE ESTATE.  SECTION 57J
WAS LIMITED TO PROSCRIBING PENALTIES ARISING FROM THE BANKRUPT'S OWN
DEFAULTS.  THAT CASE, HOWEVER, DOES NOT TELL US WHETHER THE TRUSTEE WAS
LIABLE EITHER TO PAY THE TAX OR TO FILE THE RETURN IN THE CIRCUMSTANCES
OF THIS CASE.  IT DOES NOT FOLLOW FROM THE TRUSTEE'S OBLIGATION TO PAY
LICENSE FEES ON VEHICLES USED IN HIS OWN OPERATIONS THAT HE IS LIKEWISE
OBLIGATED TO PAY A TAX AND FILE A RETURN WITH RESPECT TO THE DEBTOR'S
PRIOR BUSINESS OPERATIONS.  AND EVEN IF ONE ADMITS THE OBLIGATION TO
FILE THE RETURN, WHICH I DO NOT, THE FACT THAT THE RETURN RELATES TO
PREBANKRUPTCY MATTERS, NOT TO THE TRUSTEE'S OPERATIONS, BRINGS THIS
CASE MUCH CLOSER TO THOSE IN WHICH SEC 57J WAS CLEARLY INTENDED TO
APPLY. 
..END :








GOJACK V. UNITED STATES 384 U.S. 702 


NO. 594.  ARGUED APRIL 21, 1966.  - DECIDED JUNE 13, 1966.  - 121 U.S.
APP. D.C. 126, 348 F.2D 355, REVERSED. 


IN AN APPEARANCE BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES IN 1955, PETITIONER REFUSED TO ANSWER CERTAIN
QUESTIONS CONCERNING HIS AFFILIATION WITH THE COMMUNIST PARTY, THE
AFFILIATION OF OTHERS, AND HIS CONNNECTION WITH A "PEACE CRUSADE."  HE
DID NOT INVOKE THE FIFTH AMENDMENT, BUT CHALLENGED THE JURISDICTION OF
THE COMMITTEE AND THE SUBCOMMITTEE, THE AUTHORIZATION OF EACH AND THE
CONSTITUTIONALITY OF THE INQUIRY.  HE WAS INDICTED AND CONVICTED FOR
CONTEMPT OF CONGRESS UNDER 2 U.S.C. SEC 192 AS A RESULT OF HIS REFUSALS
TO ANSWER.  IN RUSSEL V. UNITED STATES, 369 U.S. 749, THIS COURT
REVERSED, HOLDING THE INDICTMENT DEFECTIVE BECAUSE IT DID NOT ALLEGE
THE "SUBJECT UNDER INQUIRY."  PETITIONER WAS RE-INDICTED, THE
INDICTMENT RECITING THAT "THE SUBJECT OF THESE HEARINGS WAS COMMUNIST
PARTY ACTIVITIES WITHIN THE FIELD OF LABOR."  PETITIONER WAS AGAIN
CONVICTED AND HIS CONVICTION WAS AFFIRMED BY THE COURT OF APPEALS. 
HELD: 

1.  "A SPECIFIC, PROPERLY AUTHORIZED SUBJECT OF INQUIRY IS AN
ESSENTIAL ELEMENT OF THE OFFENSE UNDER SEC 192," AND MUST BE PROPERLY
PLEADED AND PROVED.  PP. 706-712. 

2.  IN THIS CASE THE HOUSE COMMITTEE NEVER AUTHORIZED THE HEARINGS ON
"COMMUNIST PARTY ACTIVITIES WITHIN THE FIELD OF LABOR" WHICH IS ALLEGED
TO BE THE SUBJECT OF INQUIRY.  PP. 706-712. 

(A)  THE HOUSE COMMITTEE'S OWN RULE I REQUIRES THAT A "MAJOR
INVESTIGATION" BE SPECIFICALLY APPROVED BY THE COMMITTEE.  THIS IS
CONCEDEDLY A "MAJOR INVESTIGATION."  THE RECORD SHOWS THAT IT WAS NEVER
AUTHORIZED OR APPROVED BY THE COMMITTEE.  "WHEN A COMMITTEE RULE
RELATES TO A MATTER OF SUCH IMPORTANCE, IT MUST BE STRICTLY OBSERVED." 
YELLIN V. UNITED STATES, 374 U.S. 109.  PP. 706-709. 

(B)  THE COMMITTEE'S FAILURE TO AUTHORIZE THE INVESTIGATION CANNOT BE
CURED BY AN "INFERENCE" OF COMMITTEE APPROVAL.  PP. 709-711. 

3.  ADDITIONALLY, THE SUBCOMMITTEE BEFORE WHICH PETITIONER TESTIFIED
WAS NOT PROPERLY EMPOWERED TO CONDUCT THE INQUIRY.  "ABSENT PROOF OF A
CLEAR DELEGATION TO THE SUBCOMMITTEE OF AUTHORITY TO CONDUCT AN INQUIRY
INTO A DESIGNATED SUBJECT, THE SUBCOMMITTEE WAS WITHOUT AUTHORITY WHICH
CAN BE VINDICATED BY CRIMINAL SANCTIONS UNDER SEC 192  ...  ."  HENCE,
EVEN IF THE COMMITTEE ITSELF HAD PROPERLY APPROVED THE MAKING OF THE
INVESTIGATION, THIS PROSECUTION WOULD FAIL BECAUSE THE SUBCOMMITTEE WAS
NOT PROPERLY EMPOWERED.  "THE LEGISLATIVE HISTORY OF SEC 192 MAKES
PLAIN THAT A CLEAR CHAIN OF AUTHORITY FROM THE HOUSE TO THE QUESTIONING
BODY IS AN ESSENTIAL ELEMENT OF THE OFFENSE.  IF THE CONTEMPT OCCURS
BEFORE A SUBCOMMITTEE, THE LINE OF AUTHORITY FROM THE HOUSE TO THE
COMMITTEE AND THEN TO THE SUBCOMMITTEE MUST PLAINLY AND EXPLICITLY
APPEAR, AND IT MUST APPEAR IN TERMS OF A DELEGATION WITH RESPECT TO A
PARTICULAR, SPECIFIC SUBJECT MATTER."  PP. 713-717. 

GOJACK V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A SEQUEL TO THIS COURT'S DECISION IN RUSSEL V. UNITED
STATES, 369 U.S. 749, AND COMPANION CASES.  ONE OF THOSE CASES RELATED
TO THE SAME PERSON WHO IS PETITIONER HERE AND TO THE SAME EVENTS. 

PETITIONER APPEARED BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
UN-AMERICAN ACTIVITIES ON FEBRUARY 28 AND MARCH 1, 1955.  HE ANSWERED
CERTAIN QUESTIONS, BUT REFUSED TO ANSWER OTHERS CONCERNING HIS
AFFILIATION WITH THE COMMUNIST PARTY, THE AFFILIATION OF OTHERS, AND
HIS CONNECTION WITH A "PEACE CRUSADE."  HE HAD CHALLENGED THE
JURISDICTION OF THE COMMITTEE AND THE SUBCOMMITTEE, THE AUTHORIZATION
OF EACH, AND THE CONSTITUTIONALITY OF THE INQUIRY IN GENERAL AND WITH
SPECIFIC REFERENCE TO QUESTIONS WHICH HE DECLINED TO ANSWER.  (FN1)  HE
DID NOT AND DOES NOT INVOKE THE FIFTH AMENDMENT. 

HE WAS INDICTED FOR CONTEMPT OF CONGRESS UNDER REV. STAT. SEC 102, AS
AMENDED, 52 STAT.  942, 2 U.S.C. SEC 192 (1964 ED.)  (FN2) (HEREAFTER,
SEC 192) AS A RESULT OF HIS REFUSALS TO ANSWER.  HE WAS CONVICTED.  IN
RUSSEL V. UNITED STATES, SUPRA, THIS COURT REVERSED, HOLDING THAT THE
INDICTMENT WAS DEFECTIVE BECAUSE IT DID NOT ALLEGE THE "SUBJECT UNDER
INQUIRY."  THE COURT NOTED THAT UNDER SEC 192 SPECIFICATION OF THE
SUBJECT OF THE INQUIRY IS FUNDAMENTAL TO A CHARGE OF VIOLATING ITS
PROVISIONS.  ABSENT AN ALLEGATION OF THE SUBJECT MATTER OF THE INQUIRY,
THIS COURT HELD, THERE IS NO WAY IN WHICH IT CAN BE DETERMINED WHETHER
THE FACTUAL RECITALS OF THE INDICTMENT CHARGED A CRIME UNDER SEC 192 -
THAT IS, A REFUSAL TO ANSWER QUESTIONS "PERTINENT TO THE INQUIRY," AND
WITHIN THE LEGISLATIVE COMPETENCE OF CONGRESS.  (FN3) 

PETITIONER WAS THEREAFTER RE-INDICTED.  THE DEFICIENCY IN THE FIRST
INDICTMENT WAS SOUGHT TO BE CURED BY A RECITAL THAT "THE SUBJECT OF
THESE HEARINGS WAS COMMUNIST PARTY ACTIVITIES WITHIN THE FIELD OF LABOR
...  ."  PETITIONER WAS AGAIN CONVICTED AND GIVEN A GENERAL SENTENCE
OF THREE MONTHS' IMPRISONMENT AND A $200 FINE.  THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED PER CURIAM.  121 U.S.
APP. D.C. 126, 348 F.2D 355 (1965).  WE GRANTED CERTIORARI.  382 U.S.
937.  WE REVERSE.  IT IS NOW CLEAR THAT THE FAULT IN THESE PROCEEDINGS
IS MORE FUNDAMENTAL THAN THE OMISSION FROM THE INDICTMENT OF AN
ALLEGATION OF THE "SUBJECT OF THE INQUIRY" BEING CONDUCTED BY THE
SUBCOMMITTEE.  THE SUBJECT OF THE INQUIRY WAS NEVER SPECIFIED OR
AUTHORIZED BY THE COMMITTEE, AS REQUIRED BY ITS OWN RULES, NOR WAS
THERE A LAWFUL DELEGATION OF AUTHORITY TO THE SUBCOMMITTEE TO CONDUCT
THE INVESTIGATION. 

PETITIONER HERE URGES THAT WE RECONSIDER THIS COURT'S DECISION IN
BARENBLATT V. UNITED STATES, 360 U.S. 109.  IN BARENBLATT THIS COURT
UPHELD THE AUTHORITY OF THE COMMITTEE TO INVESTIGATE COMMUNIST
INFILTRATION INTO THE FIELD OF EDUCATION.  IN THE CIRCUMSTANCES OF THAT
CASE, THE COURT SUSTAINED THE CONSTITUTIONALITY OF THE INVESTIGATION
AND OF THE COMMITTEE'S INQUIRY INTO PETITIONER'S ALLEGED MEMBERSHIP IN
THE COMMUNIST PARTY.  SINCE WE DECIDE THE PRESENT CASE ON OTHER
GROUNDS, IT IS NOT NECESSARY NOR WOULD IT BE APPROPRIATE TO REACH THE
CONSTITUTIONAL QUESTION. 

I. 

RULE I OF THE RULES OF PROCEDURE OF THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES PROVIDES THAT "NO MAJOR INVESTIGATION SHALL BE
INITIATED WITHOUT APPROVAL OF A MAJORITY OF THE COMMITTEE."  RULE XI,
PAR. 26, OF THE RULES OF THE HOUSE OF REPRESENTATIVES REQUIRES EACH
COMMITTEE OF THE HOUSE TO KEEP A RECORD OF ALL COMMITTEE ACTIONS. 
THERE IS NO RESOLUTION, MINUTE OR RECORD OF THE COMMITTEE AUTHORIZING
THE INQUIRY WITH WHICH WE ARE CONCERNED. 

THE SOLICITOR GENERAL'S BRIEF IN THIS COURT STATES THAT:
"ADMITTEDLY, THERE IS NO DIRECT EVIDENCE THAT THE COMMITTEE APPROVED
THE INVESTIGATION OF COMMUNIST ACTIVITIES IN THE FIELD OF LABOR OF
WHICH THE HEARINGS AT WHICH PETITIONER WAS CALLED TO TESTIFY WERE A
PART."  A FOOTNOTE TO THIS STATEMENT CONCEDES THAT "WE DO NOT DISPUTE
THAT THIS INVESTIGATION WAS A 'MAJOR' ONE AND THAT APPROVAL BY A
MAJORITY OF THE COMMITTEE WAS THEREFORE REQUIRED." 

THE GOVERNMENT'S ONLY PLEA IN AVOIDANCE OF THIS OBVIOUS DEFICIENCY IS
THAT WE SHOULD "INFER" COMMITTEE APPROVAL OF THE INQUIRY AT WHICH
PETITIONER WAS REQUIRED TO RESPOND TO QUESTIONS, BECAUSE IT WAS PART OF
THE COMMITTEE'S ALLEGED "CONTINUING INVESTIGATION" OF COMMUNIST
ACTIVITIES IN THE LABOR FIELD.  (FN4)  BUT THIS IS CLEARLY
IMPERMISSIBLE.  WE ARE NOT HERE DEALING WITH THE JUSTIFICATION FOR AN
INVESTIGATION BY A COMMITTEE OF THE CONGRESS AS A MATTER OF
CONGRESSIONAL ADMINISTRATION.  THAT IS A LEGISLATIVE MATTER.  WE ARE
HERE CONCERNED WITH A CRIMINAL PROCEEDING.  IT IS CLEAR AS A MATTER OF
LAW THAT THE USUAL STANDARDS OF THE CRIMINAL LAW MUST BE OBSERVED,
INCLUDING PROPER ALLEGATION AND PROOF OF ALL THE ESSENTIAL ELEMENTS OF
THE OFFENSE.  (FN5) MOREOVER, THE CONGRESS, IN ENACTING SEC 192,
SPECIFICALLY INDICATED THAT IT RELIED UPON THE COURTS TO APPLY THE
EXACTING STANDARDS OF CRIMINAL JURISPRUDENCE TO CHARGES OF CONTEMPT OF
CONGRESS IN ORDER TO ASSURE THAT THE CONGRESSIONAL INVESTIGATIVE POWER,
WHEN ENFORCED BY PENAL SANCTIONS, WOULD NOT BE ABUSED.  (FN6) 

IT CAN HARDLY BE DISPUTED THAT A SPECIFIC, PROPERLY AUTHORIZED
SUBJECT OF INQUIRY IS AN ESSENTIAL ELEMENT OF THE OFFENSE UNDER SEC
192.  IN RUSSELL, THIS COURT HELD THAT THE DEFINITION OF THE SUBJECT
UNDER INQUIRY IS "THE BASIC PRELIMINARY QUESTION WHICH THE FEDERAL
COURTS  ... WOULD HAVE TO DECIDE IN DETERMINING WHETHER A CRIMINAL
OFFENSE HAD BEEN ALLEGED OR PROVED."  "OUR DECISIONS HAVE POINTED OUT
THAT THE OBVIOUS FIRST STEP IN DETERMINING WHETHER THE QUESTIONS ASKED
WERE PERTINENT TO THE SUBJECT UNDER INQUIRY IS TO ASCERTAIN WHAT THAT
SUBJECT WAS."  369 U.S., AT 756-757, 758-759.  SEE ALSO WILKINSON V.
UNITED STATES, 365 U.S. 399, 407-409; DEUTCH V. UNITED STATES, 367 U.S.
456, 467-469; WATKINS V. UNITED STATES, 354 U.S. 178, 208-215; SINCLAIR
V. UNITED STATES, 279 U.S. 263, 295-296.  IN UNITED STATES V. RUMELY,
345 U.S. 41, MR. JUSTICE FRANKFURTER OBSERVED THAT THE RESOLUTION
DEFINING THE SUBJECT OF A COMMITTEE'S INQUIRY IS THE COMMITTEE'S
"CONTROLLING CHARTER" AND DELIMITS ITS "RIGHT TO EXACT TESTIMONY."  345
U.S., AT 44.  CF. SINCLAIR V.  UNITED STATES, 279 U.S. 263, 295-298. 
THIS COURT MADE IT CLEAR IN WATKINS V. UNITED STATES, 354 U.S. 178,
201, 206, THAT PERTINENCY IS A "JURISDICTIONAL CONCEPT" AND IT MUST BE
DETERMINED BY REFERENCE TO THE AUTHORIZING SOLUTION OF AN
INVESTIGATION.  THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES HAS
ITSELF RECOGNIZED THE FUNDAMENTAL IMPORTANCE OF SPECIFIC AUTHORIZATION
BY PROVIDING IN ITS RULE I THAT A MAJOR INQUIRY MUST BE INITIATED BY
VOTE OF A MAJORITY OF THE COMMITTEE.  WHEN A COMMITTEE RULE RELATES TO
A MATTER OF SUCH IMPORTANCE, IT MUST BE STRICTLY OBSERVED.  YELLIN V.
UNITED STATES, 374 U.S. 109.  SINCE THE PRESENT INQUIRY IS CONCEDEDLY
PART OF A "MAJOR INVESTIGATION" AND THE COMMITTEE DID NOT AUTHORIZE IT
AS REQUIRED BY ITS OWN RULE I, THIS PROSECUTION MUST FAIL.  THERE IS NO
BASIS FOR INVOKING CRIMINAL SANCTIONS TO PUNISH A WITNESS FOR REFUSAL
TO COOPERATE IN AN INQUIRY WHICH WAS NEVER PROPERLY AUTHORIZED. 

INDEED, THE PRESENT CASE ILLUSTRATES THE WISDOM OF THE COMMITTEE'S
RULE REQUIRING SPECIFIC AUTHORIZATION OF A MAJOR INVESTIGATION.  HERE,
IN THE ABSENCE OF OFFICIAL AUTHORIZATION OF A SPECIFIC INQUIRY,
STATEMENTS WERE MADE AS TO THE SUBJECT AND PURPOSE OF THE INQUIRY
WHICH, TO SAY THE LEAST, MIGHT HAVE CAUSED CONFUSION AS TO THE SUBJECT
OF THE INVESTIGATION, AND MIGHT WELL HAVE INSPIRED RESPECTABLE DOUBTS
AS TO THE LEGAL VALIDITY OF THE COMMITTEE'S PURPOSES.  (FN7)  A BRIEF
RECAPITULATION OF THE RELEVANT FACTS WILL DEMONSTRATE THIS: 

1.  ON NOVEMBER 19, 1954, ABOUT A MONTH AND A HALF BEFORE APPOINTMENT
OF THE SUBCOMMITTEE, THE CHAIRMAN OF THE COMMITTEE WAS REPORTED AS
HAVING ANNOUNCED THAT "LARGE PUBLIC HEARINGS IN INDUSTRIAL COMMUNITIES"
WOULD BE HELD TO EXPOSE ACTIVE COMMUNISTS AS PART OF "A NEW PLAN FOR
DRIVING REDS OUT OF IMPORTANT INDUSTRIES."  (FN8) 

2.  ON FEBRUARY 14, WHEN A REPRESENTATIVE OF PETITIONER'S UNION
APPEARED TO REQUEST A POSTPONEMENT, THE CHAIRMAN OF THE COMMITTEE
STATED THAT "ALL OF US ARE INTERESTED IN SEEING YOUR UNION GO OUT OF
BUSINESS."  A SIMILAR STATEMENT BY THE CHAIRMAN OF THE SUBCOMMITTEE WAS
REPORTED IN THE PRESS ON FEBRUARY 15. 

3.  ON FEBRUARY 21, THE RECORD SHOWS THAT A NEWSPAPER IN ST. JOSEPH,
MICHIGAN, REPORTED A STATEMENT OF THE COMMITTEE CHAIRMAN THAT THE
HEARING WOULD EXPOSE PETITIONER AND ANOTHER SUBPOENAED WITNESS AS "CARD
CARRYING COMMUNISTS" AND THAT "THE REST IS UP TO THE COMMUNITY."  THE
STORY NOTED THAT THE RESCHEDULED HEARING WOULD PRECEDE BY THREE DAYS A
REPRESENTATION ELECTION, INVOLVING THE UNION, AT ST. JOSEPH. 

4.  NEAR THE CLOSE OF THE TESTIMONY OF THE FIRST WITNESS AT THE
HEARING, THE CHAIRMAN AND OTHER MEMBERS OF THE SUBCOMMITTEE DISAVOWED
ANY EFFORT "TO BREAK OR BUST UNIONS," BUT ADDED THAT THE COMMITTEE'S
PURPOSE WAS TO EXPOSE AND BREAK UP COMMUNIST CONTROL OF UNIONS. 

5.  AT ONE POINT IN THE HEARING, THE MEMBER OF THE SUBCOMMITTEE WHO
WAS THEN PRESIDING STATED THAT THE PURPOSE OF THE HEARING WAS TO
CONSIDER TESTIMONY RELATING TO COMMUNIST PARTY ACTIVITIES WITHIN THE
FIELD OF LABOR, BUT WENT ON TO REFER TO OTHER PURPOSES.  HE SAID THAT
THE HEARING WOULD ALSO CONSIDER "THE CIRCUMSTANCES UNDER WHICH MEMBERS
OF THE COMMUNIST PARTY IN THE UNITED STATES WERE RECRUITED FOR MILITARY
SERVICE IN THE SPANISH CIVIL WAR, AND TO ASCERTAIN THE METHOD USED BY
THE COMMUNIST PARTY IN SECURING ASSISTANCE FROM THE MEDICAL PROFESSION
IN CARRYING OUT ITS OBJECTIVES." 

WE DO NOT CHARACTERIZE THESE STATEMENTS OR APPRAISE THEIR LEGAL
EFFECT.  THEY ARE RELEVANT HERE ONLY TO DEMONSTRATE THE INSUPERABLE
HURDLE OF "INFERRING," AS THE GOVERNMENT SUGGESTS, THE AUTHORIZATION OF
THE INQUIRY IN THE ABSENCE OF A SPECIFIC STATEMENT AND THE
PARTICULARIZED AUTHORIZATION REQUIRED BY THE COMMITTEE'S OWN RULES. 
OBVIOUSLY, SOME OF THE STATEMENTS MADE AS TO THE COMMITTEE'S PURPOSES
EXCEED THE BOUNDS WHICH WOULD BE ENFORCED BY CRIMINAL SANCTIONS,  (FN9)
AND OTHERS DO NOT CORRESPOND TO THE ALLEGATION IN THE SECOND INDICTMENT
THAT THE SUBJECT OF THE INQUIRY WAS "COMMUNIST PARTY ACTIVITIES WITHIN
THE FIELD OF LABOR." 

IT SHOULD BE NOTED THAT RULE I OF THE COMMITTEE HAS A SPECIAL
SIGNIFICANCE IN THE CASE OF THE HOUSE UN-AMERICAN ACTIVITIES
COMMITTEE.  THE COMMITTEE IS A STANDING COMMITTEE OF THE HOUSE, NOT A
SPECIAL COMMITTEE WITH A SPECIFIC, NARROW MANDATE.  ITS CHARTER IS
PHRASED IN EXCEEDINGLY BROAD LANGUAGE.  IT IS AUTHORIZED TO MAKE
INVESTIGATIONS OF UN-AMERICAN AND SUBVERSIVE "PROPAGANDA" AND
"PROPAGANDA ACTIVITIES" AND "ALL OTHER QUESTIONS IN RELATION THERETO
THAT WOULD AID CONGRESS IN ANY NECESSARY REMEDIAL LEGISLATION."  TO
SUPPORT CRIMINAL PROSECUTION UNDER SEC 192, THIS GENERALITY MUST BE
REFINED AS RULE I CONTEMPLATED.  OTHERWISE, IT IS NOT POSSIBLE FOR
WITNESSES TO JUDGE THE APPROPRIATENESS OF QUESTIONS ADDRESSED TO THEM,
OR FOR THE COMMITTEE, THE CONGRESS, OR THE COURTS TO MAKE THE ESSENTIAL
JUDGMENT WHICH SEC 192 REQUIRES:  WHETHER THE ACCUSED PERSON HAS
REFUSED "TO ANSWER ANY QUESTION PERTINENT TO THE QUESTION UNDER
INQUIRY."  (FN10) 

IT NOW APPEARS THAT THE INVESTIGATION AND THE "QUESTION UNDER
INQUIRY" IN PETITIONER'S CASE WERE NEITHER PROPERLY AUTHORIZED NOR
SPECIFICALLY STATED.  NOR WAS THE PURPOSE OF THE INQUIRY CLEARLY
UNDERSTOOD, APPARENTLY, EVEN BY THE MEMBERS OF THE SUBCOMMITTEE
THEMSELVES.  ALTHOUGH AT THE OUTSET OF THE HEARINGS THE SUBCOMMITEE
CHAIRMAN DID ALLUDE TO "COMMUNIST PARTY ACTIVITIES WITHIN THE FIELD OF
LABOR" AS THE SUBJECT MATTER UNDER INVESTIGATION, STATEMENTS AND
DECLARATIONS OF COMMITEE MEMBERS WERE AT VARIANCE WITH THIS PURPORTED
PURPOSE.  THE RECITAL IN THE SECOND AND REVISED INDICTMENT THAT IT WAS
"COMMUNIST PARTY ACTIVITIES WITHIN THE FIELD OF LABOR" WAS THEREFORE
BASED ON QUICKSAND.  OBVIOUSLY, THIS COURT'S DECISION IN RUSSELL CANNOT
BE SATISFIED BY A MERE STATEMENT IN THE INDICTMENT, HAVING NO
UNDERPINNING IN AN AUTHORIZING RESOLUTION, THAT THE RECITED SUBJECT WAS
IN FACT THE SUBJECT OF THE INQUIRY.  RUSSELL CALLED FOR MORE THAN A
DRAFTSMAN'S EXERCISE. 

                                        II. 

THERE IS IN THIS CASE ANOTHER FATAL DEFECT.  THE HEARINGS IN WHICH
PETITIONER WAS CALLED TO TESTIFY WERE BEFORE A SUBCOMMITTEE OF THE
HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES.  PURSUANT TO COMMITTEE
AUTHORIZATION, THE CHAIRMAN ON FEBRUARY 9, 1955, APPOINTED A
SUBCOMMITTEE OF THREE MEMBERS TO CONDUCT HEARINGS AT WHICH THREE NAMED
WITNESSES, INCLUDING PETITIONER, WERE TO BE CALLED.  NEITHER THE
RESOLUTION NOR ANY MINUTES OR OTHER RECORDS OF THE COMMITTEE STATED THE
SUBJECT MATTER COMMITTED TO THE SUBCOMMITTEE OR OTHERWISE DESCRIBED OR
DEFINED ITS JURISDICTION IN TERMS OF SUBJECT MATTER.  (FN11)    ONCE
AGAIN, WE EMPHASIZE THAT WE EXPRESS NO VIEW AS TO THE APPROPRIATENESS
OF THIS PROCEDURE AS A METHOD OF CONDUCTING CONGRESSIONAL BUSINESS. 
BUT, ONCE AGAIN, WE EMPHASIZE THAT WE MUST CONSIDER THIS PROCEDURE FROM
THE VIEWPOINT NOT OF THE LEGISLATIVE PROCESS, BUT OF THE ADMINISTRATION
OF CRIMINAL JUSTICE, AND SPECIFICALLY THE APPLICATION OF THE CRIMINAL
STATUTE WHICH HAS BEEN INVOKED. 

VIEWED IN THIS PERSPECTIVE, THE PROBLEM ADMITS OF ONLY ONE ANSWER. 
COURTS ADMINISTERING CRIMINAL LAW CANNOT APPLY SANCTIONS FOR VIOLATION
OF THE MANDATE OF AN AGENCY - HERE, THE SUBCOMMITTEE - UNLESS THAT
AGENCY'S AUTHORITY IS CLEAR AND HAS BEEN CONFERRED IN ACCORDANCE WITH
LAW. 

WE DO NOT QUESTION THE AUTHORITY OF THE COMMITTEE APPROPRIATELY TO
DELEGATE FUNCTIONS TO A SUBCOMMITTEE OF ITS MEMBERS, NOR DO WE DOUBT
THE AVAILABILITY OF SEC 192 FOR PUNISHMENT OF CONTEMPT BEFORE SUCH A
SUBCOMMITTEE IN PROPER CASES.  BUT HERE, NOT ONLY DID THE COMMITTEE
FAIL TO AUTHORIZE ITS OWN INVESTIGATION, BUT ALSO IT FAILED TO SPECIFY
THE SUBJECT OF INQUIRY THAT THE SUBCOMMITTEE WAS TO UNDERTAKE.  THE
CRIMINAL LAW CANNOT BE USED TO IMPLEMENT JURISDICTION SO OBTAINED,
WITHOUT METES AND BOUNDS, WITHOUT STATEMENT OR DESCRIPTION OF THE
SUBJECT COMMITTED TO THE SUBCOMMITTEE.  UNITED STATES V. SEEGER, 303
F.2D 478 (C.A.2D CIR. 1962).  CF. UNITED STATES V. LAMONT, 18 F.R.D. 27
(D.C.S.D.N.Y.  1955), AFF'D, 236 F.2D 312 (C.A.2D CIR. 1956).  IN
SEEGER, A CONTEMPT CONVICTION HAD BEEN OBTAINED FOR REFUSAL TO ANSWER
QUESTIONS OF A SUBCOMMITTEE.  THE RESOLUTION ESTABLISHING THE
SUBCOMMITTEE, LIKE THAT IN THE PRESENT CASE, ANNOUNCED THE DATE FOR THE
HEARING AND STATED THE SUBCOMMITTEE'S MEMBERS, BUT STATED NO SUBJECT
MATTER.  AS JUDGE MOORE, CONCURRING, PUT IT: 

"EVEN THE MOST LIBERAL CONSTRUCTION CANNOT TRANSFORM  ...  THIS INTO
A RESOLUTION OF THE COMMITTEE VESTING ITS AUTHORITY IN A SUBCOMMITTEE
...  ."  303 F.2D, AT 487. 

SEE ALSO UNITED STATES V. KAMIN, 136 F. SUPP. 791 (D.C.D. MASS.
1956). 

WE NEED NOT CONSIDER WHETHER THE COMMITTEE, BY EXPRESS RESOLUTION,
MIGHT HAVE DELEGATED ALL OF ITS AUTHORITY TO THE SUBCOMMITTEE.  IT DID
NOT ATTEMPT THIS, NOR DID IT OTHERWISE SPECIFY THE SUBJECT MATTER AS TO
WHICH THE SUBCOMMITTEE WAS AUTHORIZED TO ACT.  (FN12)  ACCORDINGLY,
EVEN IF WE WERE ABLE TO ESTABLISH PROPER AUTHORIZATION BY THE COMMITTEE
ITSELF PURSUANT TO RULE I TO CONDUCT THE INQUIRY AT WHICH THE QUESTIONS
WERE ASKED WHICH PETITIONER REFUSED TO ANSWER, THIS PROSECUTION WOULD
FAIL.  THE JURISDICTION OF THE COURTS CANNOT BE INVOKED TO IMPOSE
CRIMINAL SANCTIONS IN AID OF A ROVING COMMISSION.  THE SUBJECT OF THE
INQUIRY OF THE SPECIFIC BODY BEFORE WHICH THE ALLEGED CONTEMPT OCCURRED
MUST BE CLEAR AND CERTAIN.  AS CHIEF JUDGE CLARK STATED IN UNITED
STATES V. LAMONT, SUPRA, AT 315, IT IS NECESSARY TO "LINK THE INQUIRY
CONDUCTED BY THE SUBCOMMITTEE TO THE GRANT OF AUTHORITY DISPENSED TO
ITS PARENT COMMITTEE." 

REFERENCE TO SEC 192 EMPHASIZES THE IMPORTANCE OF THIS REQUIREMENT. 
THE STATUTE REQUIRES THAT A WITNESS, TO BE FOUND GUILTY OF CONTEMPT,
MUST HAVE "BEEN SUMMONED AS A WITNESS BY THE AUTHORITY OF EITHER HOUSE
OF CONGRESS TO GIVE TESTIMONY  ...  UPON ANY MATTER UNDER INQUIRY
BEFORE EITHER HOUSE ...  ."  THE AUTHORITY BEING EXERCISED IS THAT OF
THE HOUSE OF REPRESENTATIVES.  SEE WATKINS, 354 U.S., AT 200-205.  IT
IS THE INVESTIGATORY POWER OF THE HOUSE THAT IS VINDICATED BY SEC 192. 
THE LEGISLATIVE HISTORY OF SEC 192 MAKES PLAIN THAT A CLEAR CHAIN OF
AUTHORITY FROM THE HOUSE TO THE QUESTIONING BODY IS AN ESSENTIAL
ELEMENT OF THE OFFENSE.  (FN13)  IF THE CONTEMPT OCCURS BEFORE A
SUBCOMMITTEE, THE LINE OF AUTHORITY FROM THE HOUSE TO THE COMMITTEE AND
THEN TO THE SUBCOMMITTEE MUST PLAINLY AND EXPLICITLY APPEAR, AND IT
MUST APPEAR IN TERMS OF A DELEGATION WITH RESPECT TO A PARTICULAR,
SPECIFIC SUBJECT MATTER.  AS JUDGE WEINFIELD STATED IN UNITED STATES V.
LAMONT, SUPRA, AT 32: 

"NO COMMITTEE OF EITHER THE HOUSE OR SENATE, AND NO SENATOR AND NO
REPRESENTATIVE, IS FREE ON ITS OR HIS OWN TO CONDUCT INVESTIGATIONS
UNLESS AUTHORIZED.  THUS IT MUST APPEAR THAT CONGRESS EMPOWERED THE
COMMITTEE TO ACT, AND FURTHER THAT AT THE TIME THE WITNESS ALLEGEDLY
DEFIED ITS AUTHORITY THE COMMITTEE WAS ACTING WITHIN THE POWER GRANTED
TO IT." 

ABSENT PROOF OF A CLEAR DELEGATION TO THE SUBCOMMITTEE OF AUTHORITY
TO CONDUCT AN INQUIRY INTO A DESIGNATED SUBJECT, THE SUBCOMMITTEE WAS
WITHOUT AUTHORITY WHICH CAN BE VINDICATED BY CRIMINAL SANCTIONS UNDER
SEC 192, NOR WAS THERE AN AUTHORITATIVE SPECIFICATION OF THE "SUBJECT
MATTER OF THE INQUIRY" NECESSARY FOR THE DETERMINATION OF PERTINENCY
REQUIRED BY THE SECTION. 

FOR THE FOREGOING REASONS, THE JUDGMENT BELOW IS REVERSED. 

FN1  AT THE OUTSET OF THE HEARINGS, PETITIONER'S COUNSEL FILED A
MOTION WHICH ASKED THAT THE SUBPOENAS BE VACATED AND THE HEARINGS "SET
ASIDE" ON THE GROUNDS, AMONG OTHERS, THAT THE COMMITTEE WAS NOT ENGAGED
IN "A LEGISLATIVE INVESTIGATION FOR A BONA FIDE LEGISLATIVE PURPOSE,"
BUT RATHER IN AN EFFORT TO DESTROY THE LABOR UNION OF WHICH PETITIONER
WAS AN OFFICER; THAT THE "COMMITTEE'S BASIC RESOLUTION" IS
UNCONSTITUTIONAL BECAUSE "NO PERSON CAN DETERMINE FROM IT THE
BOUNDARIES OF THE COMMITTEE'S POWER," AND THAT IN ANY EVENT IT DID NOT
AUTHORIZE THIS INVESTIGATION; AND THAT THE FIRST AMENDMENT FORBIDS
COMPULSORY DISCLOSURE OF POLITICAL BELIEFS AND AFFILIATIONS. 

FN2  THIS PROVISION, ENACTED IN 1857, NOW (WITH MINOR CHANGES) READS
AS FOLLOWS: 

"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 JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, 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 JAIL FOR NOT LESS THAN ONE MONTH NOR
MORE THAN TWELVE MONTHS." 

FN3  THE LEADING CASE ON THE REQUIREMENT OF LEGISLATIVE PURPOSE IS
KILBOURN V. THOMPSON, 103 U.S. 168.  KILBOURN DID NOT ARISE UNDER SEC
192, BUT WAS A DAMAGE SUIT ARISING OUT OF A DIRECT EXERCISE BY THE
HOUSE OF REPRESENTATIVES OF A CLAIMED POWER TO PUNISH FOR CONTEMPT. 
THE COURT HELD THAT SINCE THE SUBJECT MATTER OF THE INVESTIGATION HAD
NOT BEEN LEGISLATIVE IN CHARACTER, THE ORDER OF CONTEMPT OF THE HOUSE,
DIRECTING ITS SERGEANT-AT-ARMS TO IMPRISON THE CONTUMACIOUS WITNESS,
AFFORDED THE SERGEANT NO PROTECTION FROM LIABILITY.  SEE, FOR CASES
UNDER 192, IN RE CHAPMAN, 166 U.S. 661, 667-670; MCGRAIN V. DAUGHERTY,
273 U.S. 135, 173-180; SINCLAIR V. UNITED STATES, 279 U.S. 263, 291
295; QUINN V. UNITED STATES, 349 U.S. 155, 160-161; WATKINS V. UNITED
STATES, 354 U.S. 178, 187, 200; BARENBLATT V. UNITED STATES, 360 U.S.
109, 133; WILKINSON V. UNITED STATES, 365 U.S. 399, 410-412.  SEE ALSO
NOTE 6, INFRA. 

FN4  THERE IS SOME EVIDENCE IN THE RECORD THAT THE HOUSE COMMITTEE
HAD "INTERMITTENTLY" (BRIEF FOR THE UNITED STATES, P. 4) INVESTIGATED
THE UNION OF WHICH PETITIONER WAS AN OFFICER AS A PART OF ITS ALLEGED
"CONTINUING INVESTIGATION."  HOWEVER, NOWHERE IN THE RECORD DOES ANY
AUTHORIZATION OF SUCH A CONTINUING INVESTIGATION APPEAR.  IN ANY EVENT,
THE AUTHORIZATION OF A "MAJOR INVESTIGATION" BY THE FULL COMMITTEE MUST
OCCUR DURING THE TERM OF THE CONGRESS IN WHICH THE INVESTIGATION TAKES
PLACE.  NEITHER THE HOUSE OF REPRESENTATIVES NOR ITS COMMITTEES ARE
CONTINUING BODIES.  CF. ANDERSON V. DUNN, 6 WHEAT.  204, 231; MARSHALL
V. GORDON, 243 U.S. 521, 542.  IT IS THE PRACTICE OF THE HOUSE TO ADOPT
ITS RULES - INCLUDING THE RULE WHICH ESTABLISHES THE UN-AMERICAN
ACTIVITIES COMMITTEE AND DEFINES THE SCOPE OF ITS AUTHORITY - AT THE
BEGINNING OF EACH CONGRESS.  SEE, E.G., 109 CONG. REC. 14, 88TH CONG.,
1ST SESS. (1963); 101 CONG. REC. 11, 84TH CONG., 1ST SESS. (1955). 

FN5  SEE, E.G., WATKINS V. UNITED STATES, 354 U.S. 178, 208; RUSSELL
V. UNITED STATES, 369 U.S. 749, 755; UNITED STATES V. LAMONT, 18 F.R.D.
27, 37 (D.C.S.D.N.Y. 1955), AFF'D, 236 F.2D 312 (C.A.2D CIR. 1956). 

FN6  FOR EXAMPLE, IN CONNECTION WITH THE DEBATES ON SEC 192, SENATOR
BAYARD, WHO BORE THE BRUNT OF THE ARGUMENT FOR THE BILL IN THE SENATE,
SAID:  "IT IS A RULE OF LAW VERY WELL SETTLED, THAT IF THERE IS NO
JURISDICTION OVER THE SUBJECT-MATTER, THE PROCEEDING IS VOID.  IN SUCH
A CASE, OF COURSE, A COURT OF JUSTICE WOULD DECIDE THAT THE WITNESS
COULD NOT BE COMPELLED TO ANSWER FOR WANT OF JURISDICTION."  CONG.
GLOBE, 34TH CONG., 3D SESS., P. 439 (1857).  SEE ALSO ID., AT 439-440. 

IN RUSSELL, THIS COURT SAID, "THE OBVIOUS CONSEQUENCE OF THE
CONGRESSIONAL PURPOSE IN SEC 192, AS THE COURT HAS REPEATEDLY
EMPHASIZED, WAS TO CONFER UPON THE FEDERAL COURTS THE DUTY TO ACCORD A
PERSON PROSECUTED FOR THIS STATUTORY OFFENSE EVERY SAFEGUARD WHICH THE
LAW ACCORDS IN ALL OTHER FEDERAL CRIMINAL CASES."  369 U.S., AT 755. 

FN7  IN THE ABSENCE - AS HERE - OF ANY SPECIFIC AUTHORIZATION OF THE
INQUIRY AND IN VIEW OF THE BROAD AND CONFLICTING STATEMENTS OF THE
COMMITTEE MEMBERS AS TO THE PURPOSE OF THE INQUIRY, THE PRESENT CASE
PRESENTS A FORMIDABLE PROBLEM OF THE "VICE OF VAGUENESS" WHICH TROUBLED
THE COURT IN WATKINS, 354 U.S., AT 209.  WE DO NOT REACH THAT PROBLEM
BECAUSE WE DECIDE THE CASE ON OTHER GROUNDS. 

FN8  THE RECORD CONTAINS THE FOLLOWING NEWS ACCOUNT, THE ACCURACY OF
WHICH WAS NOT CONTROVERTED: 

"REP. FRANCIS E. WALTER (D., PA.), WHO WILL TAKE CHARGE IN THE NEW
CONGRESS OF HOUSE ACTIVITIES AGAINST COMMUNISTS AND THEIR SYMPATHIZERS,
HAS A NEW PLAN FOR DRIVING REDS OUT OF IMPORTANT INDUSTRIES. 

"HE SAID TODAY HE PLANS TO HOLD LARGE PUBLIC HEARINGS IN INDUSTRIAL
COMMUNITIES WHERE SUBVERSIVES ARE KNOWN TO BE OPERATING, AND TO GIVE
KNOWN OR SUSPECTED COMMIES A CHANCE IN A FULL GLARE OF PUBLICITY TO
DENY OR AFFIRM THEIR CONNECTION WITH A REVOLUTIONARY CONSPIRACY - OR TO
TAKE SHELTER BEHIND CONSTITUTIONAL AMENDMENTS. 

"BY THIS MEANS, HE SAID, ACTIVE COMMUNISTS WILL BE EXPOSED BEFORE
THEIR NEIGHBORS AND FELLOW WORKERS, 'AND I HAVE EVERY CONFIDENCE THAT
THE LOYAL AMERICANS WHO WORK WITH THEM WILL DO THE REST OF THE JOB.' 

     *         *     *         *         * 

"HEARINGS OF A SIMILAR NATURE HAVE BEEN HELD IN LOCAL AREAS, BUT REP.
WALTER WANTS TO MAKE THEM BIGGER, WITH THE PUBLIC BEING URGED AS WELL
AS INVITED TO ATTEND. 

"'WE WILL FORCE THESE PEOPLE WE KNOW TO BE COMMUNISTS TO APPEAR BY
THE POWER OF SUBPENA,' REP. WALTER SAID, 'AND WILL DEMONSTRATE TO THEIR
FELLOW WORKERS THAT THEY ARE PART OF A FOREIGN CONSPIRACY.'" 

FN9  THIS COURT HAS EMPHASIZED THAT THERE IS NO CONGRESSIONAL POWER
TO INVESTIGATE MERELY FOR THE SAKE OF EXPOSURE OR PUNISHMENT,
PARTICULARLY IN THE FIRST AMENDMENT AREA.  IN WATKINS V. UNITED STATES,
354 U.S. 178, THE COURT STATED: 

"WE HAVE NO DOUBT THAT THERE IS NO CONGRESSIONAL POWER TO EXPOSE FOR
THE SAKE OF EXPOSURE."  ID., AT 200. 

"THERE IS NO GENERAL AUTHORITY TO EXPOSE THE PRIVATE AFFAIRS OF
INDIVIDUALS WITHOUT JUSTIFICATION IN TERMS OF THE FUNCTIONS OF THE
CONGRESS  ...  .  INVESTIGATIONS CONDUCTED SOLELY  ...  TO 'PUNISH'
THOSE INVESTIGATED ARE INDEFENSIBLE."  ID., AT 187. 

SEE ALSO CASES CITED AT NOTE 3, SUPRA; AND SEE NOTE 6, SUPRA. 

FN10  IN WATKINS, 354 U.S., AT 200-216, THIS COURT CONSIDERED THE
BEARING UPON THE STATUTORY REQUIREMENT OF PERTINENCY OF THE COMMITTEE'S
STATUS AS A STANDING COMMITTEE, OF ITS VAGUE CHARTER, AND OF FAILURE TO
DEFINE THE SCOPE OF ITS ACTIVITIES WITHIN THAT CHARTER. 

FN11  THE INDICTMENT REFERS TO COMMITTEE ACTION TAKEN ON THREE DATES,
AND THE PROOF AT TRIAL PROVIDED NO OTHER SOURCE OF AUTHORITY FOR THE
SUBCOMMITTEE.  NONE OF THESE DESIGNATES OR DESCRIBES THE SUBJECT MATTER
OF THE INQUIRY OR AUTHORIZES THE SUBCOMMITTEE TO CONDUCT IT.  THE
COMMITTEE'S MINUTES FOR THESE THREE DATES ARE AS FOLLOWS: 

ON JANUARY 20, 1955, THE HOUSE COMMITTEE AUTHORIZED ITS CHAIRMAN: 

"FROM TIME TO TIME TO APPOINT SUBCOMMITTEES COMPOSED OF THREE OR MORE
MEMBERS OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES, AT LEAST ONE OF
WHOM SHALL BE THE MINORITY POLITICAL PARTY, AND A MAJORITY OF WHOM
SHALL CONSTITUTE A QUORUM, FOR THE PURPOSE OF PERFORMING ANY AND ALL
ACTS WHICH THE COMMITTEE AS A WHOLE IS AUTHORIZED TO PERFORM." 

THEREAFTER, ON FEBRUARY 9, A MEETING OF THE HOUSE COMMITTEE WAS HELD,
THE MINUTES OF WHICH RECORD THE FOLLOWING: 

"MR. SCHERER MOVED THAT DAVID MATES AND JOHN GOJACK BE SUBPENAED TO
APPEAR BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON INTERNAL SECURITY IN
OPEN HEARING AT FORT WAYNE, INDIANA; AND THAT A DR. SHAFARMAN BE
SUBPENAED TO APPEAR IN EXECUTIVE SESSION AT FORT WAYNE, INDIANA.  THE
CHAIRMAN DESIGNATED MR. MOULDER, MR. DOYLE, AND MR. SCHERER AS A
SUBCOMMITTEE TO CONDUCT THE HEARINGS IN FORT WAYNE, INDIANA, AND SET
THE TIME AT FEBRUARY 21, 1955." 

THE HOUSE COMMITTEE MET AGAIN ON FEBRUARY 23, AND THE FOLLOWING TOOK
PLACE: 

"THE HEARINGS SCHEDULED TO BE HELD AT FORT WAYNE, INDIANA, WERE
DISCUSSED.  THE CHAIRMAN STATED THAT UPON LEARNING THAT A NATIONAL
LABOR BOARD ELECTION WAS TO BE HELD IN FORT WAYNE ON FEBRUARY 24, HE
CONTINUED THE HEARINGS UNTIL FEBRUARY 28 AND SET THE PLACE FOR THE
HEARINGS IN WASHINGTON, D.C. MR. SCHERER MOVED THAT THE COMMITTEE HOLD
HEARINGS AT A SUBSEQUENT DATE IN FORT WAYNE.  THE MOTION DIED FOR WANT
OF A SECOND.  THE COMMITTEE AGREED THAT AFTER THE HEARINGS ON FEBRUARY
28 IT WOULD THEN BE DETERMINED WHETHER FURTHER HEARINGS IN FORT WAYNE
WOULD BE NECESSARY."    FN12  THE ACTION OF THE FULL COMMITTEE IN
REPORTING PETITIONER'S CONTEMPT TO THE HOUSE, AND THE HOUSE'S ACTION IN
CERTIFYING THE CONTEMPT TO THE UNITED STATES ATTORNEY FOR PROSECUTION,
CANNOT BE TAKEN AS RETROACTIVE AUTHORIZATION OF THE INVESTIGATION AND
DEFINITION OF THE DELEGATED AUTHORITY.  PETITIONER'S "DUTY TO ANSWER
MUST BE JUDGED AS OF THE TIME OF HIS REFUSAL."  UNITED STATES V.
RUMELY, 345 U.S. 41, 48. 

FN13  SEE CONG. GLOBE, 34TH CONG., 3D SESS., PARTICULARLY AT PAGES
406, 409-410, 427, 435 (1857).  SEE ALSO WATKINS V. UNITED STATES, 354
U.S. 178, 200-201. 

WHILE CONCURRING IN THE COURT'S JUDGMENT AND OPINION, MR. JUSTICE
BLACK WOULD PREFER TO REVERSE THE JUDGMENT BY HOLDING THAT THE HOUSE UN
AMERICAN ACTIVITIES COMMITTEE'S INQUIRIES HERE AMOUNTED TO AN
UNCONSTITUTIONAL ENCROACHMENT ON THE JUDICIAL POWER FOR REASONS STATED
IN HIS DISSENT IN BARENBLATT V. UNITED STATES, 360 U.S. 109, 135. 
..END :


















GRAY V. ILLINOIS 384 U.S. 718 


NO. 1494, MISC.  DECIDED JUNE 13, 1966.  - 33 ILL. 2D 349, 211 N.E.2D
369, APPEAL DISMISSED AND CERTIORARI DENIED. 


GRAY V. ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















GREAT LAKES PIPE LINE CO. V. COMMISSIONER OF TAXATION 384 U.S. 718 


NO. 1240.  DECIDED JUNE 13, 1966.  - 272 MINN. 403, 138 N.W.2D 612,
APPEAL DISMISSED. 


GREAT LAKES PIPE LINE CO. V. COMMISSIONER OF TAXATION. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















FEDERAL TRADE COMMISSION V. BROWN SHOE CO. 384 U.S. 316 


NO. 118.  ARGUED APRIL 25, 1966.  - DECIDED JUNE 6, 1966.  - 339 F.2D
45, REVERSED. 


THE FTC FILED A COMPLAINT AGAINST RESPONDENT, THE COUNTRY'S SECOND
LARGEST SHOE MANUFACTURER, UNDER SEC 5 OF THE FEDERAL TRADE COMMISSION
ACT, CHARGING UNFAIR TRADE PRACTICES BY THE USE OF A "FRANCHISE STORES
PROGRAM" THROUGH WHICH RESPONDENT SELLS ITS SHOES TO MORE THAN 650
RETAIL STORES.  IN RETURN FOR SPECIAL BENEFITS FROM BROWN SHOE COMPANY,
THE FRANCHISE STORES AGREE TO BUY BROWN SHOE LINES AND TO REFRAIN FROM
BUYING COMPETITIVE LINES.  AFTER HEARINGS THE FTC CONCLUDED THAT THE
RESTRICTIVE CONTRACT PROGRAM WAS AN UNFAIR METHOD OF COMPETITION AND
ORDERED RESPONDENT TO CEASE AND DESIST FROM ITS USE.  THE COURT OF
APPEALS SET ASIDE THE FTC'S ORDER, HOLDING THAT THERE WAS "COMPLETE
FAILURE TO PROVE AN EXCLUSIVE DEALING AGREEMENT" VIOLATIVE OF SEC 5 OF
THE ACT.  HELD: THE FTC ACTED WELL WITHIN ITS AUTHORITY UNDER THE ACT
IN DECLARING RESPONDENT'S FRANCHISE PROGRAM AN UNFAIR TRADE PRACTICE. 
PP. 319-322. 

(A)  ON THIS RECORD THE FTC HAS POWER TO FIND SUCH ANTICOMPETITIVE
PRACTICE UNFAIR.  FEDERAL TRADE COMM'N V. GRATZ, 253 U.S. 421, RELIED
ON BY THE COURT OF APPEALS, HAS BEEN REJECTED BY THIS COURT.  PP. 320
321. 

(B)  THE FRANCHISE PROGRAM CONFLICTS WITH THE POLICY OF SEC 1 OF THE
SHERMAN ACT AND SEC 3 OF THE CLAYTON ACT AGAINST CONTRACTS WHICH REMOVE
FREEDOM OF PURCHASERS TO BUY IN AN OPEN MARKET.  P. 321. 

(C)  UNDER SEC 5 OF THE FEDERAL TRADE COMMISSION ACT THE FTC HAS
POWER TO ARREST RESTRAINTS OF TRADE IN THEIR INCIPIENCY WITHOUT PROOF
THAT THEY ARE OUTRIGHT VIOLATIONS OF SEC 3 OF THE CLAYTON ACT OR OTHER
ANTITRUST PROVISIONS.  F.T.C. V. MOTION PICTURE ADV.  CO., 344 U.S.
392, 394-395.  PP. 321-322. 

FEDERAL TRADE COMMISSION V. BROWN SHOE CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

DIRECTS THE COMMISSION "TO PREVENT PERSONS, PARTNERSHIPS, OR
CORPORATIONS  ...  FROM USING UNFAIR METHODS OF COMPETITION IN COMMERCE
AND UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN COMMERCE."  (FN1)
PROCEEDING UNDER THE AUTHORITY OF SEC 5, THE FEDERAL TRADE COMMISSION
FILED A COMPLAINT AGAINST THE BROWN SHOE CO., INC., ONE OF THE WORLD'S
LARGEST MANUFACTURERS OF SHOES WITH TOTAL SALES OF $236,946,078 FOR THE
YEAR ENDING OCTOBER 31, 1957.  THE UNFAIR PRACTICES CHARGED AGAINST
BROWN REVOLVE AROUND THE "BROWN FRANCHISE STORES' PROGRAM" THROUGH
WHICH BROWN SELLS ITS SHOES TO SOME 650 RETAIL STORES.  THE COMPLAINT
ALLEGED THAT UNDER THIS PLAN BROWN, A CORPORATION ENGAGED IN INTERSTATE
COMMERCE, HAD "ENTERED INTO CONTRACTS OR FRANCHISES WITH A SUBSTANTIAL
NUMBER OF ITS INDEPENDENT RETAIL SHOE STORE OPERATOR CUSTOMERS WHICH
REQUIRE SAID CUSTOMERS TO RESTRICT THEIR PURCHASES OF SHOES FOR RESALE
TO THE BROWN LINES AND WHICH PROHIBIT THEM FROM PURCHASING, STOCKING OR
RESELLING SHOES MANUFACTURED BY COMPETITORS OF BROWN."  BROWN'S
CUSTOMERS WHO ENTERED INTO THESE RESTRICTIVE FRANCHISE AGREEMENTS, SO
THE COMPLAINT CHARGED, WERE GIVEN IN RETURN SPECIAL TREATMENT AND
VALUABLE BENEFITS WHICH WERE NOT GRANTED TO BROWN'S CUSTOMERS WHO DID
NOT ENTER INTO THE AGREEMENTS.  IN ITS ANSWER TO THE COMMISSION'S
COMPLAINT BROWN ADMITTED THAT APPROXIMATELY 259 OF ITS RETAIL CUSTOMERS
HAD EXECUTED WRITTEN FRANCHISE AGREEMENTS AND THAT OVER 400 OTHERS HAD
ENTERED INTO ITS FRANCHISE PROGRAM WITHOUT EXECUTION OF THE FRANCHISE
AGREEMENT.  ALSO IN ITS ANSWER BROWN ATTACHED AS AN EXHIBIT AN
UNEXECUTED COPY OF THE "FRANCHISE AGREEMENT" WHICH, WHEN EXECUTED BY
BROWN'S REPRESENTATIVE AND A RETAIL SHOE DEALER, OBLIGATES BROWN TO
GIVE TO THE DEALER BUT NOT TO OTHER CUSTOMERS CERTAIN VALUABLE
SERVICES, INCLUDING AMONG OTHERS ARCHITECTURAL PLANS, COSTLY
MERCHANDISING RECORDS, SERVICES OF A BROWN FIELD REPRESENTATIVE, AND A
RIGHT TO PARTICIPATE IN GROUP INSURANCE AT LOWER RATES THAN THE DEALER
COULD OBTAIN INDIVIDUALLY.  IN RETURN, ACCORDING TO THE FRANCHISE
AGREEMENT SET OUT IN BROWN'S ANSWER, THE RETAILER MUST MAKE THIS
PROMISE: 

"IN RETURN I WILL: 

"1.  CONCENTRATE MY BUSINESS WITHIN THE GRADES AND PRICE LINES OF
SHOES REPRESENTING BROWN SHOE COMPANY FRANCHISES OF THE BROWN DIVISION
AND WILL HAVE NO LINES CONFLICTING WITH BROWN DIVISION BRANDS OF THE
BROWN SHOE COMPANY." 

BROWN'S ANSWER FURTHER ADMITTED THAT THE OPERATORS OF "SUCH BROWN
FRANCHISE STORES IN INDIVIDUALLY VARYING DEGREES ACCEPT THE BENEFITS
AND PERFORM THE OBLIGATIONS CONTAINED IN SUCH FRANCHISE AGREEMENTS OR
IMPLICIT IN SUCH PROGRAM," AND THAT BROWN REFUSES TO GRANT THESE
BENEFITS "TO DEALERS WHO ARE DROPPED OR VOLUNTARILY WITHDRAW FROM THE
BROWN FRANCHISE PROGRAM  ...  ."  THE FOREGOING ADMISSIONS OF BROWN AS
TO THE EXISTENCE AND OPERATION OF THE FRANCHISE PROGRAM WERE BUTTRESSED
BY MANY SEPARATE DETAILED FACT FINDINGS OF A TRIAL EXAMINER, ONE OF
WHICH FINDINGS WAS THAT THE FRANCHISE PROGRAM EFFECTIVELY FORECLOSED
BROWN'S COMPETITORS FROM SELLING TO A SUBSTANTIAL NUMBER OF RETAIL SHOE
DEALERS.  (FN2)  BASED ON THESE FINDINGS AND ON BROWN'S ADMISSIONS THE
COMMISSION CONCLUDED THAT THE RESTRICTIVE CONTRACT PROGRAM WAS AN
UNFAIR METHOD OF COMPETITION WITHIN THE MEANING OF SEC 5 AND ORDERED
BROWN TO CEASE AND DESIST FROM ITS USE. 

ON REVIEW THE COURT OF APPEALS SET ASIDE THE COMMISSION'S ORDER.  IN
DOING SO THE COURT SAID: 

"BY PASSAGE OF THE FEDERAL TRADE COMMISSION ACT, PARTICULARLY SEC 5
THEREOF, WE DO NOT BELIEVE THAT CONGRESS MEANT TO PROHIBIT OR LIMIT
SALES PROGRAMS SUCH AS BROWN SHOE ENGAGED IN IN THIS CASE ...  .  THE
CUSTOM OF GIVING THE SERVICE TO THOSE WHO WILL BUY THEIR SHOES IS
WIDESPREAD, AND WE CANNOT AGREE WITH THE COMMISSION THAT IT IS AN
UNFAIR METHOD OF COMPETITION IN COMMERCE."  339 F.2D 45, 56. 

IN ADDITION THE COURT OF APPEALS HELD THAT THERE WAS A "COMPLETE
FAILURE TO PROVE AN EXCLUSIVE DEALING AGREEMENT WHICH MIGHT BE HELD
VIOLATIVE OF SEC 5 OF THE ACT."  WE ARE ASKED TO TREAT THIS GENERAL
CONCLUSION AS THOUGH THE COURT INTENDED IT TO BE A REJECTION OF THE
COMMISSION'S FINDINGS OF FACT.  WE CANNOT DO THIS.  NEITHER THIS
STATEMENT OF THE COURT NOR ANY OTHER STATEMENT IN THE OPINION INDICATES
A PURPOSE TO HOLD THAT THE EVIDENCE FAILED TO SHOW AN AGREEMENT BETWEEN
BROWN AND MORE THAN 650 FRANCHISED DEALERS WHICH RESTRAINED THE DEALERS
FROM BUYING COMPETING LINES OF SHOES FROM BROWN'S COMPETITORS.  INDEED,
IN VIEW OF THE CRUCIAL ADMISSIONS IN BROWN'S FORMAL ANSWER TO THE
COMPLAINT WE CANNOT ATTRIBUTE TO THE COURT OF APPEALS A PURPOSE TO SET
ASIDE THE COMMISSION'S FINDINGS THAT THESE RESTRICTIVE AGREEMENTS
EXISTED AND THAT BROWN AND MOST OF THE FRANCHISED DEALERS IN VARYING
DEGREES LIVED UP TO THEIR OBLIGATIONS.  THUS THE QUESTION WE HAVE FOR
DECISION IS WHETHER THE FEDERAL TRADE COMMISSION CAN DECLARE IT TO BE
AN UNFAIR PRACTICE FOR BROWN, THE SECOND LARGEST MANUFACTURER OF SHOES
IN THE NATION, TO PAY A VALUABLE CONSIDERATION TO HUNDREDS OF RETAIL
SHOE PURCHASERS IN ORDER TO SECURE A CONTRACTUAL PROMISE FROM THEM THAT
THEY WILL DEAL PRIMARILY WITH BROWN AND WILL NOT PURCHASE CONFLICTING
LINES OF SHOES FROM BROWN'S COMPETITORS.  WE HOLD THAT THE COMMISSION
HAS POWER TO FIND, ON THE RECORD HERE, SUCH AN ANTICOMPETITIVE PRACTICE
UNFAIR, SUBJECT OF COURSE TO JUDICIAL REVIEW.  SEE ATLANTIC RFG.  CO.
V. FTC, 381 U.S. 357, 367. 

IN HOLDING THAT THE FEDERAL TRADE COMMISSION LACKED THE POWER TO
DECLARE BROWN'S PROGRAM TO BE UNFAIR THE COURT OF APPEALS WAS MUCH
INFLUENCED BY AND QUOTED AT LENGTH FROM THIS COURT'S OPINION IN FEDERAL
TRADE COMM'N V. GRATZ, 253 U.S. 421.  THAT CASE, DECIDED SHORTLY AFTER
THE FEDERAL TRADE COMMISSION ACT WAS PASSED, CONSTRUED THE ACT OVER A
STRONG DISSENT BY MR. JUSTICE BRANDEIS AS GIVING THE COMMISSION VERY
LITTLE POWER TO DECLARE ANY TRADE PRACTICE UNFAIR.  LATER CASES OF THIS
COURT, HOWEVER, HAVE REJECTED THE GRATZ VIEW AND IT IS NOW RECOGNIZED
IN LINE WITH THE DISSENT OF MR. JUSTICE BRANDEIS IN GRATZ THAT THE
COMMISSION HAS BROAD POWERS TO DECLARE TRADE PRACTICES UNFAIR.  (FN3)
THIS BROAD POWER OF THE COMMISSION IS PARTICULARLY WELL ESTABLISHED
WITH REGARD TO TRADE PRACTICES WHICH CONFLICT WITH THE BASIC POLICIES
OF THE SHERMAN AND CLAYTON ACTS EVEN THOUGH SUCH PRACTICES MAY NOT
ACTUALLY VIOLATE THESE LAWS.  (FN4)  THE RECORD IN THIS CASE SHOWS
BEYOND DOUBT THAT BROWN, THE COUNTRY'S SECOND LARGEST MANUFACTURER OF
SHOES, HAS A PROGRAM, WHICH REQUIRES SHOE RETAILERS, UNLESS FAITHLESS
TO THEIR CONTRACTUAL OBLIGATIONS WITH BROWN, SUBSTANTIALLY TO LIMIT
THEIR TRADE WITH BROWN'S COMPETITORS.  THIS PROGRAM OBVIOUSLY CONFLICTS
WITH THE CENTRAL POLICY OF BOTH SEC 1 OF THE SHERMAN ACT AND SEC 3 OF
THE CLAYTON ACT AGAINST CONTRACTS WHICH TAKE AWAY FREEDOM OF PURCHASERS
TO BUY IN AN OPEN MARKET.  (FN5)  BROWN NEVERTHELESS CONTENDS THAT THE
COMMISSION HAD NO POWER TO DECLARE THE FRANCHISE PROGRAM UNFAIR WITHOUT
PROOF THAT ITS EFFECT "MAY BE TO SUBSTANTIALLY LESSEN COMPETITION OR
TEND TO CREATE A MONOPOLY" WHICH OF COURSE WOULD HAVE TO BE PROVED IF
THE GOVERNMENT WERE PROCEEDING AGAINST BROWN UNDER SEC 3 OF THE CLAYTON
ACT RATHER THAN SEC 5 OF THE FEDERAL TRADE COMMISSION ACT.  WE REJECT
THE ARGUMENT THAT PROOF OF THIS SEC 3 ELEMENT MUST BE MADE FOR AS WE
POINTED OUT ABOVE OUR CASES  (FN6) HOLD THAT THE COMMISSION HAS POWER
UNDER SEC 5 TO ARREST TRADE RESTRAINTS IN THEIR INCIPIENCY WITHOUT
PROOF THAT THEY AMOUNT TO AN OUTRIGHT VIOLATION OF SEC 3 OF THE CLAYTON
ACT OR OTHER PROVISIONS OF THE ANTITRUST LAWS.  THIS POWER OF THE
COMMISSION WAS EMPHATICALLY STATED IN F.T.C. V. MOTION PICTURE ADV. 
CO., 344 U.S. 392, AT PP. 394-395: 

"IT IS  ...  CLEAR THAT THE FEDERAL TRADE COMMISSION ACT WAS DESIGNED
TO SUPPLEMENT AND BOLSTER THE SHERMAN ACT AND THE CLAYTON ACT  ...  TO
STOP IN THEIR INCIPIENCY ACTS AND PRACTICES WHICH, WHEN FULL BLOWN,
WOULD VIOLAJE THOSE ACTS  ...  AS WELL AS TO CONDEMN AS 'UNFAIR METHODS
OF COMPETITION' EXISTING VIOLATIONS OF THEM." 

WE HOLD THAT THE COMMISSION ACTED WELL WITHIN ITS AUTHORITY IN
DECLARING THE BROWN FRANCHISE PROGRAM UNFAIR WHETHER IT WAS COMPLETELY
FULL BLOWN OR NOT.  REVERSED. 

FN1  38 STAT. 719, AS AMENDED, 15 U.S.C. SEC 45(A)(6) (1964 ED.). 

"UNFAIR METHODS OF COMPETITION IN COMMERCE, AND UNFAIR OR DECEPTIVE
ACTS OR PRACTICES IN COMMERCE, ARE DECLARED UNLAWFUL." 

FN2  IN ITS OPINION THE COMMISSION FOUND THAT THE SERVICES PROVIDED
BY BROWN IN ITS FRANCHISE PROGRAM WERE THE "PRIME MOTIVATION" FOR
DEALERS TO JOIN AND REMAIN IN THE PROGRAM; THAT THE PROGRAM RESULTED IN
FRANCHISED STORES PURCHASING 75% OF THEIR TOTAL SHOE REQUIREMENTS FROM
BROWN - THE REMAINDER BEING FOR THE MOST PART SHOES WHICH WERE NOT
"CONFLICTING" LINES, AS PROVIDED BY THE AGREEMENT; THAT THE EFFECT OF
THE PLAN WAS TO FORECLOSE RETAIL OUTLETS TO BROWN'S COMPETITORS,
PARTICULARLY SMALL MANUFACTURERS; AND THAT ENFORCEMENT OF THE PLAN WAS
EFFECTED BY TEAMS OF FIELD MEN WHO CALLED UPON THE SHOE STORES, URGED
THE ELIMINATION OF OTHER MANUFACTURERS' CONFLICTING LINES AND REPORTED
DEVIATIONS TO BROWN WHO THEN CANCELLED UNDER A PROVISION OF THE
AGREEMENT.  COMPARE BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294. 

FN3  SEE, E.G., FEDERAL TRADE COMM'N V. R.F. KEPPEL & BRO., INC., 291
U.S. 304, 310; TRADE COMM'N V. CEMENT INSTITUTE, 333 U.S. 683, 693;
ATLANTIC RFG.  CO. V. FTC, 381 U.S. 357, 367. 

FN4  SEE, E.G., FASHION GUILD V. TRADE COMM'N, 312 U.S. 457, 463;
ATLANTIC RFG.  CO. V. FTC, 381 U.S. 357, 369. 

FN5  SECTION 1 OF THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C. SEC 1
(1964 ED.), DECLARES ILLEGAL "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  ...  ." 

ED.), PROVIDES IN RELEVANT PART: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE  ...  TO
...  MAKE A  ...  CONTRACT FOR SALE OF GOODS  ...  FOR  ...  RESALE
WITHIN THE UNITED STATES  ...  ON THE CONDITION, AGREEMENT, OR
UNDERSTANDING THAT THE  ... PURCHASER THEREOF SHALL NOT USE OR DEAL IN
THE GOODS  ...  OF A COMPETITOR OR COMPETITORS OF THE  ...  SELLER,
WHERE THE EFFECT OF SUCH  ...  CONDITION, AGREEMENT, OR UNDERSTANDING
MAY BE TO SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY
IN ANY LINE OF COMMERCE." 

FN6  SEE CASES CITED IN NOTE 4, SUPRA.
..END :







UNITED STATES V. EQUITABLE LIFE 384 U.S. 323 


NO. 645.  ARGUED APRIL 21, 1966.  - DECIDED JUNE 6, 1966.  - 45 N.J.
206, 212 A.2D 25, REVERSED AND REMANDED. 


A HUSBAND AND HIS WIFE EXECUTED TO RESPONDENT A MORTGAGE ON REAL
PROPERTY IN NEW JERSEY WHICH WAS THEREAFTER RECORDED.  OVER A YEAR
LATER THE GOVERNMENT FILED AND RECORDED IN ACCORDANCE WITH 26 U.S.C.
SEC 6323 A TAX LIEN AGAINST THE HUSBAND.  ALMOST A YEAR LATER THE
MORTGAGORS DEFAULTED AND RESPONDENT BROUGHT THIS FORECLOSURE ACTION FOR
THE PRINCIPAL AND INTEREST UNDER THE MORTGAGE AND AN ATTORNEY'S FEE
UNDER A NEW JERSEY COURT RULE ALLOWING FOR ATTORNEYS' FEES IN
FORECLOSURE PROCEEDINGS DETERMINED AS A PERCENTAGE OF THE AMOUNT
ADJUDGED TO BE PAID THE MORTGAGEE AND TAXED AS COSTS IN THE ACTION. 
PETITIONER CONCEDED THE MORTGAGE PRIORITY BUT CONTENDED THAT THE
ATTORNEY'S FEE WAS INFERIOR TO THE FEDERAL LIEN.  THE TRIAL COURT,
RELYING ON UNITED STATES V. PIONEER AMERICAN INSURANCE CO., 374 U.S.
84, HELD THE ATTORNEY'S FEE CLAIM SUBORDINATE TO THE FEDERAL TAX LIEN. 
THE STATE SUPREME COURT REVERSED.  HELD:  A FEDERAL TAX LIEN RECORDED
BEFORE THE MORTGAGOR'S DEFAULT HAS PRIORITY OVER A MORTGAGEE'S CLAIM
FOR AN ATTORNEY'S FEE IN THE SUBSEQUENT FORECLOSURE PROCEEDING.  PP.
327-332. 

(A)  AS AGAINST A RECORDED FEDERAL TAX LIEN, THE RELATIVE PRIORITY OF
A STATE LIEN, WHICH IS DETERMINED BY FEDERAL LAW, DEPENDS UPON WHETHER
THE STATE LIEN WAS "SPECIFIC AND PERFECTED" ON THE DATE THE FEDERAL
LIEN WAS RECORDED.  PP. 327-328. 

(B)  A MORTGAGEE'S CLAIM FOR ATTORNEYS' FEES WHICH IS INCHOATE AT
LEAST UNTIL ALL FEDERAL LIENS HAVE BEEN FILED IS THEREFORE SUBORDINATE
TO SUCH LIENS.  UNITED STATES V. PIONEER AMERICAN INSURANCE CO., SUPRA,
FOLLOWED.  P. 328. 

(C)  AT THE TIME THE FEDERAL LIEN IN THIS CASE WAS RECORDED THERE HAD
BEEN NO ADJUDICATION OF THE MONEY DUE ON THE MORTGAGE, WHICH WAS NOT
THEN IN DEFAULT, AND THEREFORE THE PERCENTAGE DETERMINATION OF THE
ATTORNEY'S FEE UNDER THE NEW JERSEY COURT RULE COULD NOT BE MADE. 
SECURITY MORTGAGE CO. V. POWERS, 278 U.S. 149, DISTINGUISHED.  PP. 328
329. 

(D)  ACCORDING PRIORITY TO THE FEDERAL TAX LIEN CANNOT BE DEFEATED BY
LABELING ATTORNEYS' FEES AS "COSTS."  P. 330. 

(E)  TO ALLOW THE PRIORITY OF FEDERAL TAX LIENS TO BE DETERMINED BY
THE DIFFERENT RULES OF THE VARIOUS STATES WOULD CONTRAVENE THE POLICY
OF UNIFORMITY IN THE FEDERAL TAX LAWS.  P. 331. 

UNITED STATES V. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES. 

CERTIORARI TO THE SUPREME COURT OF NEW JERSEY. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS WRIT INVOLVES THE RECURRING PROBLEM OF PRIORITY CONTESTS BETWEEN
A STATE LIEN AND A FEDERAL TAX LIEN UNDER SECS 6321 AND 6322 OF THE
INTERNAL REVENUE CODE OF 1954, 26 U.S.C.  SECS 6321, 6322 (1964 ED.). 
SINCE 1950 - UNITED STATES V. SECURITY TRUST & SAVINGS BANK, 340 U.S.
47 - WE HAVE PASSED UPON MORE THAN A DOZEN CASES INVOLVING SOME FACET
OF THE PROBLEM.  IN THE PRESENT CASE THE LAW OF NEW JERSEY PROVIDES FOR
THE ALLOWANCE IN A FORECLOSURE ACTION OF AN ATTORNEY'S FEE FIXED BY
STATUTE AS A CERTAIN PERCENTAGE OF THE AMOUNT ADJUDGED TO BE PAID THE
MORTGAGEE AND TAXED AS COSTS IN THE ACTION.  THE QUESTION PRESENTED IS
WHETHER A FEDERAL TAX LIEN IS ENTITLED TO PRIORITY OVER THE MORTGAGEE'S
CLAIM FOR SUCH AN ATTORNEY'S FEE, WHERE NOTICE OF THE TAX LIEN IS
RECORDED PRIOR TO DEFAULT BY THE MORTGAGOR.  THE STATE TRIAL COURT HELD
THAT THE FEDERAL TAX LIEN WAS SUPERIOR, NEW JERSEY'S HIGHEST COURT
REVERSED, 45 N.J. 206, 212 A.2D 25, AND WE GRANTED CERTIORARI, 382 U.S.
972.  ONLY THREE TERMS AGO, MR. JUSTICE WHITE WRITING FOR THE COURT,
DISPOSED OF AN ALMOST IDENTICAL QUESTION, I.E., WHETHER "A REASONABLE
ATTORNEY'S FEE" PROVIDED FOR IN A MORTGAGE NOTE "IN THE EVENT OF
DEFAULT  ...  AND OF THE PLACING OF THIS NOTE IN THE HANDS OF AN
ATTORNEY FOR COLLECTION, OR THIS NOTE IS COLLECTED THROUGH ANY COURT
PROCEEDINGS" CREATED A LIEN SUPERIOR TO THAT OF A FEDERAL TAX LIEN
RECORDED AFTER SUIT ON THE NOTE WAS FILED BUT PRIOR TO THE ACTUAL
FIXING OF THE AMOUNT OF THE ATTORNEY'S FEES.  UNITED STATES V. PIONEER
AMERICAN INSURANCE CO., 374 U.S. 84 (1963).  WE THERE HELD THE FEDERAL
LIEN SUPERIOR.  WE HOLD SIMILARLY HERE, AND REVERSE. 

                                             I. 

ALBERT BAGIN AND HIS WIFE EXECUTED TO EQUITABLE LIFE A FIRST MORTGAGE
ON CERTAIN REAL PROPERTY IN NEW JERSEY.  THIS MORTGAGE, WHICH SECURED
AN INDEBTEDNESS OF $30,000, WAS RECORDED ON DECEMBER 19, 1960.  THE
BAGINS EXECUTED TWO OTHER MORTGAGES COVERING THE PROPERTY - A SECOND
MORTGAGE WHICH WAS ALSO RECORDED ON DECEMBER 19, 1960, AND A THIRD,
RECORDED ON MAY 18, 1961.  ON MARCH 21, 1962, THE UNITED STATES FILED A
TAX LIEN FOR $7,748.91 AGAINST MR. BAGIN.  THIS LIEN, WHICH WAS FOR
UNPAID WITHHOLDING TAXES, AROSE UNDER 26 U.S.C. SEC 6321, 6322, AND WAS
RECORDED IN ACCORDANCE WITH 26 U.S.C. SEC 6323 (1964 ED.).  (FN1)
SOMEHWAT LESS THAN A YEAR LATER, THE BAGINS DEFAULTED ON THE FIRST
MORTGAGE AND EQUITABLE LIFE BROUGHT THIS FORECLOSURE ACTION.  EQUITABLE
CLAIMED THE PRINCIPAL AND INTEREST DUE UNDER THE MORTGAGE, AS WELL AS
AN ATTORNEY'S FEE AS AUTHORIZED BY NEW JERSEY STATUTE.  (FN2)  THE
SECOND MORTGAGE ADMITTED THE SUPERIORITY OF EQUITABLE LIFE'S PRIORITY
AND DEMANDED THAT THE SECOND MORTGAGE BE REPORTED UPON.  BOTH THE
BAGINS AND THE THIRD MORTGAGEES SUFFERED DEFAULT AND THEIR INTERESTS
ARE NOT BEFORE US.  THE UNITED STATES CONCEDED THE PRIORITY OF THE
CLAIMS UNDER THE FIRST TWO MORTGAGES EXCLUSIVE, HOWEVER, OF THE
ATTORNEY'S FEE, WHICH IT CONTENDED WAS INFERIOR TO THE FEDERAL LIEN. 
THE TRIAL COURT RENDERED SUMMARY JUDGMENT FIXING THE SUMS DUE THE
RESPECTIVE PARTIES AND, VIEWING THE PRIORITY QUESTION CONTROLLED BY
UNITED STATES V. PIONEER AMERICAN INSURANCE CO., SUPRA, SUBORDINATED
THE CLAIM FOR ATTORNEY'S FEE TO THE FEDERAL TAX LIEN.  WITHOUT AWAITING
A SALE OF THE PROPERTY, RESPONDENT APPEALED TO THE SUPERIOR COURT,
APPELLATE DIVISION, WHICH CERTIFIED THE APPEAL TO THE SUPREME COURT OF
NEW JERSEY.  THE SUPREME COURT ORDERED THE PROPERTY SOLD, AND, AFTER
THE SALE, HELD THAT THE STATUTORY ATTORNEY'S FEE WAS SUPERIOR TO THE
FEDERAL LIEN. 

                          II. 

IN UNITED STATES V. NEW BRITAIN, 347 U.S. 81 (1954), A LEADING CASE
IN THIS FIELD, WE HELD THAT WHERE A DEBTOR IS INSOLVENT THE "CONGRESS
HAS PROTECTED THE FEDERAL REVENUES BY IMPOSING AN ABSOLUTE PRIORITY" OF
THE FEDERAL LIEN BY VIRTUE OF SEC 3466 OF THE REVISED STATUTES (1874),
NOW 31 U.S.C. SEC 191 (1964 ED.), AND THAT WHERE THE DEBTOR IS SOLVENT
THE "UNITED STATES IS FREE TO PURSUE THE WHOLE OF THE DEBTOR'S PROPERTY
WHEREVER SITUATED" UNDER 26 U.S.C. SEC 6321, 6322.  ID., AT 85.  THE
RECORD HERE IS SILENT ON THE SOLVENCY OF THE DEBTORS, BUT AS THE
PRIORITY ISSUE BELOW CENTERED ON SEC 6321-6323 WE MAY SAFELY ASSUME
THEY ARE SOLVENT.  AS AGAINST A RECORDED FEDERAL TAX LIEN, THE RELATIVE
PRIORITY OF A STATE LIEN IS DETERMINED BY THE RULE "FIRST IN TIME IS
FIRST IN RIGHT," WHICH IN TURN HINGES UPON WHETHER, ON THE DATE THE
FEDERAL LIEN WAS RECORDED, THE STATE LIEN WAS "SPECIFIC AND
PERFECTED."  A STATE LIEN IS SPECIFIC AND PERFECTED WHEN "THERE IS
NOTHING MORE TO BE DONE  ... - WHEN THE IDENTITY OF THE LIENOR, THE
PROPERTY SUBJECT TO THE LIEN, AND THE AMOUNT OF THE LIEN ARE
ESTABLISHED."  THUS, THE PRIORITY OF EACH STATUTORY LIEN  ...  MUST
DEPEND ON THE TIME IT ATTACHED TO THE PROPERTY IN QUESTION AND BECAME
CHOATE."  UNITED STATES V. NEW BRITAIN, SUPRA.  THESE DETERMINATIONS
ARE OF COURSE FEDERAL QUESTIONS.  UNITED STATES V. WADDILL CO., 323
U.S. 353, 356-357 (1945). 

PIONEER AMERICAN, SUPRA, DEALT WITH THESE IDENTICAL PROBLEMS AND WE
THEREFORE TURN TO ITS TEACHINGS.  THERE, "THE CLAIM FOR THE ATTORNEY'S
FEE  ...  BECAME ENFORCEABLE UNDER ARKANSAS LAW AS A CONTRACT OF
INDEMNITY AT THE TIME OF DEFAULT  ...  BEFORE THE FILING OF THE FIRST
FEDERAL TAX LIENS."  THE SUIT IN WHICH THE ATTORNEY'S FEE WAS EARNED
WAS FILED PRIOR TO THE RECORDING OF THE FEDERAL LIENS.  "NEVERTHELESS,
BECAUSE THIS FEE HAD NOT BEEN INCURRED AND PAID AND COULD NOT BE
FINALLY FIXED IN AMOUNT UNTIL  ...  AFTER ALL THE FEDERAL LIENS HAD
BEEN FILED," WE HELD THAT THE FEES WERE "INCHOATE AT LEAST UNTIL THAT
DATE AND THAT THE FEDERAL TAX LIENS ARE ENTITLED TO PRIORITY."  374
U.S., AT 87.  AS WE SAID THERE, THE ATTORNEY'S FEE WAS "UNDETERMINED
AND INDEFINITE" AT THE TIME THE FEDERAL LIEN WAS RECORDED; NOR HAD THE
FEE BEEN "REDUCED TO A LIQUIDATED AMOUNT."  MOREOVER, THERE WAS NO
"SHOWING IN THIS RECORD THAT THE MORTGAGEE HAD BECOME OBLIGATED TO PAY
AND HAD PAID ANY SUM OF MONEY FOR SERVICES PERFORMED PRIOR TO THE
FILING OF THE FEDERAL TAX LIEN."  THUS, THE MORTGAGEE'S CLAIM WAS NOT
ONLY "UNCERTAIN IN AMOUNT" BUT "YET TO BE INCURRED AND PAID."  ID., AT
90-91. 

EQUITABLE'S LIEN IS EVEN MORE CLEARLY INCHOATE.  AT THE TIME THE
FEDERAL LIEN WAS RECORDED EQUITABLE'S MORTGAGE WAS NOT EVEN IN DEFAULT
NO REFERENCE WHATEVER HAD BEEN MADE TO ATTORNEYS, NO SUIT HAD BEEN
FILED, NOR HAD ANY SUMS BEEN "ADJUDGED TO BE PAID."  NEW JERSEY'S RULE
4:55-7(C), SUPRA, N. 2, WHICH FIXES THE LIEN HAD NOT EVEN BEEN INVOKED
MUCH LESS APPLIED TO ESTABLISH THE AMOUNT OF THE LIEN.  THE CLAIM WAS
WHOLLY CONTINGENT AT THE TIME THE FEDERAL LIEN MATURED.  CAST AGAINST
THE SETTING OF PIONEER AMERICAN, THE INCHOATE CHARACTER OF THE STATE
CREATED LIEN HERE STANDS OUT EVEN MORE STARKLY. 

NEW JERSEY'S SUPREME COURT RELIED ON THE PRECISENESS - THE FIXED
PERCENTAGES - OF RULE 4:55-7(C), AND APPLIED THE PRINCIPLE OF SECURITY
MORTGAGE CO. V. POWERS, 278 U.S. 149 (1928).  IT FOUND PIONEER AMERICAN
INAPPOSITE.  WE CANNOT AGREE.  SECURITY DID NOT INVOLVE A FEDERAL TAX
LIEN BUT RAISED "FEDERAL QUESTIONS PECULIAR TO THE LAW OF BANKRUPTCY." 
278 U.S., AT 154.  OUR OPINION IN PIONEER AMERICAN SPECIFICALLY POINTED
OUT THAT SECURITY HAD NO APPLICATION TO FEDERAL TAX LIEN CASES BECAUSE
THE ISSUE THERE WAS THE STATUS OF AN ATTORNEY'S FEE CLAUSE IN A
BANKRUPTCY PROCEEDING "WHERE THE RIGOROUS FEDERAL LIEN CHOATENESS TEST
WAS NOT NECESSARILY APPLICABLE."  374 U.S., AT 90, N. 8.  WE LIKEWISE
FIND THAT SECURITY HAS NO BEARING ON THE ISSUE PRESENTLY BEFORE US.  AS
WE NOTED EARLIER, AT THE TIME THE FEDERAL LIEN MATURED HERE NO SUM OF
MONEY DUE ON THE MORTGAGE HAD BEEN "ADJUDGED."  ADJUDICATION ALONE
TRIGGERS THE MATHEMATICAL MACHINERY OF RULE 4:55-7(C) WHEREBY LIABILITY
FOR THE ATTORNEY'S FEE IS FIXED.  NO LIABILITY HAVING BEEN INCURRED
THERE COULD OF COURSE BE NO LIEN IN EXISTENCE AT THE TIME THE FEDERAL
LIEN MATURED.  IN SHORT, THE FIXED FEE OF THE STATUTE HAD NOT BEEN
BROUGHT INTO PLAY. 

III. 

EQUITABLE LIFE'S REMAINING CONTENTIONS ARE UNTENABLE.  IT ARGUES
THAT, SINCE THE UNITED STATES CONCEDES THE PRIORITY OF THE MORTGAGES
HERE, THE ATTORNEY'S FEE IS LIKEWISE SUPERIOR, FOR IT MUST STAND ON NO
LESS EQUAL FOOTING AS PRINCIPAL AND INTEREST UNDER A MORTGAGE - NEITHER
OF WHICH IS ASCERTAINABLE UNTIL FORECLOSURE.  THIS IDENTICAL CONTENTION
WAS RAISED AND IMPLICITLY REJECTED IN PIONEER AMERICAN.  THERE IS
NOTHING IN THE LEGISLATIVE HISTORY OF SEC 6323 INDICATING THAT IN
PROTECTING MORTGAGEES FROM SECRET, GOVERNMENT TAX LIENS, CONGRESS
INTENDED TO INCLUDE ALL ANCILLARY INTERESTS WHICH A STATE MAY AFFORD
ITS MORTGAGEES.  SEE H.R. REP. NO. 1018, 62D CONG., 2D SESS. (1912). 
SEE ALSO H.R. REP. NO. 1337, 83D CONG., 2D SESS. (1954); S. REP. NO.
1622, 83D CONG., 2D SESS. (1954). 

NOR DOES THE FACT THAT NEW JERSEY'S STATUTORY SCHEME TAXES THE
ATTORNEY'S FEE AS COSTS IN THE FORECLOSURE PROCEEDING AFFECT THE
STANDING OF A COMPETING FEDERAL LIEN.  TO REPEAT, THE RELATIVE PRIORITY
OF A UNITED STATES LIEN FOR UNPAID TAXES IS A FEDERAL QUESTION.  UNITED
STATES V. ACRI, 348 U.S. 211, 213 (1955).  THE LABEL GIVEN THE
ATTORNEY'S FEE BY THE STATE DOES NOT BIND THIS COURT.  AS WE SAID IN
UNITED STATES V. BUFFALO SAVINGS BANK, 371 U.S. 228, 229 (1963), "THE
STATE MAY NOT AVOID THE PRIORITY RULES OF THE FEDERAL TAX LIEN BY THE
FORMALISTIC DEVICE OF CHARACTERIZING SUBSEQUENTLY ACCRUING LOCAL LIENS
AS EXPENSES OF SALE."  LIKEWISE IN PIONEER AMERICAN, THE STATE WAS NOT
PERMITTED TO UPGRADE ITS LIEN BY THE FORMALISTIC DEVICE OF
"INDEMNITY."  EVEN WHERE AUTHORIZED BY THE STATE STATUTE  (FN3) THE
DISTINCTION BETWEEN COSTS AND ALLOWANCES FOR ATTORNEYS' FEES IS WELL
RECOGNIZED.  IN SIOUX COUNTY V. NATIONAL SURETY CO., 276 U.S. 238
(1928), THE COURT SPECIFICALLY NOTED THIS DISTINCTION IN HIGHLY COGENT
TERMS:  "THAT THE STATUTE DIRECTS THE ALLOWANCE FOR AN ATTORNEY'S FEE
...  TO BE ADDED TO THE JUDGMENT AS COSTS ARE ADDED DOES NOT MAKE IT
COSTS IN THE ORDINARY SENSE OF THE TRADITIONAL, ARBITRARY AND SMALL
FEES OF COURT OFFICERS, ATTORNEYS' DOCKET FEES AND THE LIKE  ...  ." 
AT 243-244.  (FN4)  MOREOVER, THE MORTGAGEE BY FORECLOSING DOES NOT
PRODUCE A FUND FROM WHICH THE UNITED STATES BENEFITS, WITHOUT
EXPENDITURE ON ITS PART.  A FORECLOSURE IS MORE AKIN TO A LIQUIDATION
OF ASSETS THAN TO THE CREATION, ENHANCEMENT OR PROTECTION OF A COMMON
FUND FROM WHICH EQUITY PERMITS REIMBURSEMENT OF COSTS OF LITIGATION. 
(FN5)  FINALLY, IT WOULD BE CONTRARY TO THE FEDERAL POLICY OF
UNIFORMITY IN THE FEDERAL TAX LAWS TO PERMIT THE RELATIVE PRIORITY OF
FEDERAL TAX LIENS TO "BE DETERMINED BY THE DIVERSE RULES OF THE VARIOUS
STATES."  UNITED STATES V. SPEERS, 382 U.S. 266, 270 (1965).  SEE ALSO
UNITED STATES V. GILBERT ASSOCIATES, 345 U.S. 361, 364 (1953).  WHILE
WE BELIEVE THAT THE ESTABLISHED PRACTICE OF AWARDING COSTS IN THE
ORDINARY SENSE FAIRLY RENDERS THOSE ITEMS AN INCIDENT OF THE RIGHTS OF
THOSE PROTECTED UNDER SEC 6323, WE SEE NO WARRANT EITHER IN THE INTENT
OF SEC 6323 OR THE PRACTICES PREVAILING AMONG THE STATES AT THE TIME OF
ITS ENACTMENT TO TREAT ATTORNEYS' FEES AS A RIGHT ENTITLED TO PRIORITY
OVER A FEDERAL TAX LIEN. 

WE HOLD THAT THE FEDERAL TAX LIEN IS ENTITLED TO PRIORITY OVER THE
CLAIM FOR THE ATTORNEY'S FEE UNDER RULE 4:55-7(C).  WE INTIMATE NO VIEW
AS TO THE DISPOSITION THE STATE COURT MAY WISH TO MAKE OF THE FUND SET
ASIDE FOR THE PRINCIPAL, INTEREST, AND COSTS, EXCLUSIVE OF ATTORNEY'S
FEE.  THAT IS A MATTER OF STATE LAW.  UNITED STATES V. NEW BRITAIN,
SUPRA, AT 88.  REVERSED AND REMANDED. 

FN1  THESE PROVISIONS STATE: 

26 U.S.C. SEC 6321.  LIEN FOR TAXES. 

"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT (INCLUDING ANY INTEREST, ADDITIONAL
AMOUNT, ADDITION TO TAX, OR ASSESSABLE PENALTY, TOGETHER WITH ANY COSTS
THAT MAY ACCRUE IN ADDITION THERETO) SHALL BE A LIEN IN FAVOR OF THE
UNITED STATES UPON ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR
PERSONAL, BELONGING TO SUCH PERSON." 

26 U.S.C. SEC 6322.  PERIOD OF LIEN. 

"UNLESS ANOTHER DATE IS SPECIFICALLY FIXED BY LAW, THE LIEN IMPOSED
BY SECTION 6321 SHALL ARISE AT THE TIME THE ASSESSMENT IS MADE AND
SHALL CONTINUE UNTIL THE LIABILITY FOR THE AMOUNT SO ASSESSED IS
SATISFIED OR BECOMES UNENFORCEABLE BY REASON OF LAPSE OF TIME." 

26 U.S.C. SEC 6323.  VALIDITY AGAINST MORTGAGEES, PLEDGEES,
PURCHASERS, AND JUDGMENT CREDITORS. 

(A)  INVALIDITY OF LIEN WITHOUT NOTICE. 

"EXCEPT AS OTHERWISE PROVIDED IN SUBSECTIONS (C) AND (D), THE LIEN
IMPOSED BY SECTION 6321 SHALL NOT BE VALID AS AGAINST ANY MORTGAGEE,
PLEDGEE, PURCHASER, OR JUDGMENT CREDITOR UNTIL NOTICE THEREOF HAS BEEN
FILED BY THE SECRETARY OR HIS DELEGATE: 

"(1)  UNDER STATE OR TERRITORIAL LAWS. 

"IN THE OFFICE DESIGNATED BY THE LAW OF THE STATE OR TERRITORY IN
WHICH THE PROPERTY SUBJECT TO THE LIEN IS SITUATED, WHENEVER THE STATE
OR TERRITORY HAS BY LAW DESIGNATED AN OFFICE WITHIN THE STATE OR
TERRITORY FOR THE FILING OF SUCH NOTICE; OR:    "(2)  WITH CLERK OF
DISTRICT COURT. 

"IN THE OFFICE OF THE CLERK OF THE UNITED STATES DISTRICT COURT FOR
THE JUDICIAL DISTRICT IN WHICH THE PROPERTY SUBJECT TO THE LIEN IS
SITUATED, WHENEVER THE STATE OR TERRITORY HAS NOT BY LAW DESIGNATED AN
OFFICE WITHIN THE STATE OR TERRITORY FOR THE FILING OF SUCH NOTICE; ...
. 

     *         *         *         *         * 

"(B)  FORM OF NOTICE.    "IF THE NOTICE FILED PURSUANT TO SUBSECTION
(A)(1) IS IN SUCH FORM AS WOULD BE VALID IF FILED WITH THE CLERK OF THE
UNITED STATES DISTRICT COURT PURSUANT TO SUBSECTION (A)(2), SUCH NOTICE
SHALL BE VALID NOTWITHSTANDING ANY LAW OF THE STATE OR TERRITORY
REGARDING THE FORM OR CONTENT OF A NOTICE OF LIEN." 

     *         *         *         *      * 

FN2  RULES GOVERNING THE NEW JERSEY COURTS (1965 ED.): 

"4:55-7.  COUNSEL FEES. 

"NO FEE FOR LEGAL SERVICES SHALL BE ALLOWED IN THE TAXED COSTS OR
OTHERWISE, EXCEPT: 

  *         *         *         *         * 

"(C)  IN AN ACTION FOR THE FORECLOSURE OF A MORTGAGE.  THE ALLOWANCE
SHALL BE CALCULATED AS FOLLOWS:  ON ALL SUMS ADJUDGED TO BE PAID THE
PLAINTIFF IN SUCH AN ACTION, AMOUNTING TO $5,000 OR LESS, AT THE RATE
OF 3%, PROVIDED, HOWEVER, THAT IN ANY ACTION A MINIMUM FEE OF $75 SHALL
BE ALLOWED; UPON THE EXCESS OVER $5,000 AND UP TO $10,000 AT THE RATE
OF 1 1/2%; AND UPON THE EXCESS OVER $10,000 AT THE RATE OF 1%." 

FN3  BESIDES NEW JERSEY, ONLY THREE STATES PROVIDE EXPLICITLY FOR AN
ALLOWANCE, AS COSTS, FOR ATTORNEYS' FEES IN FORECLOSURE ACTIONS.  IOWA
CODE ANN. SEC 625.22; MONT. REV. CODES ANN.  SEC 93-8613; OKLA. STAT.
ANN. TIT. 46, SEC 56.  SEVERAL OTHERS PROVIDE FOR THE ENFORCEMENT OF
CONTRACTUALLY CREATED CLAIMS FOR ATTORNEYS' FEES IN SUCH ACTIONS, AS IN
PIONEER AMERICAN.  SEE, E.G., CONN. GEN. STAT. REV. SEC 49-7; VT. STAT.
ANN. TIT. 12, SEC 4527. 

FN4  INDEED, THE SUPREME COURT OF NEW JERSEY HAS ITSELF RECOGNIZED
THIS SAME DISTINCTION.  IN UNITED STATES PIPE & FOUNDRY CO. V. UNITED
STEELWORKERS OF AMERICA, 37 N.J. 343, 355-356, 181 A.2D 353, 359
(1962), THAT COURT STATED THAT COSTS GENERALLY "COMPRISE PRINCIPALLY
CERTAIN STATUTORY ALLOWANCES, AMOUNTS PAID THE CLERK IN FEES, AND
VARIOUS OTHER SPECIFIED DISBURSEMENTS OF COUNSEL INCLUDING SHERIFF'S
FEES, WITNESS FEES, DEPOSITION EXPENSES AND PRINTING COSTS ...  .
COUNSEL FEES, ALTHOUGH IF ALLOWABLE ARE INCLUDED IN THE TAXED COSTS,
ARE AN ENTIRELY DIFFERENT MATTER." 

FN5  IN THE LATTER CASE, COURTS PROCEEDING UNDER STATUTORY OR
INHERENT EQUITABLE POWERS HAVE TRADITIONALLY AWARDED ATTORNEYS' FEES. 
TRUSTEES V. GREENOUGH, 105 U.S. 527 (1882); SPRAGUE V. TICONIC BANK,
307 U.S. 161 (1939).  SEE MCCORMICK, DAMAGES SEC 62 (1935).  IN PIONEER
AMERICAN, WE STATED:  "THE ATTORNEY'S SERVICES  ...  WERE RENDERED FOR
THE BENEFIT OF THE MORTGAGEE TO PROTECT HIS INTEREST IN THE PROPERTY,
AND THE UNITED STATES, HOLDING AN ADVERSE INTEREST, RECEIVED NO SUCH
BENEFIT FROM THEM THAT ITS INTEREST IS TO BE CHARGED THEREFOR."  374
U.S., AT 92, N. 13. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :























SHEPPARD V. MAXWELL 384 U.S. 333 


NO. 490.  ARGUED FEBRUARY 28, 1966.  - DECIDED JUNE 6, 1966.  - 346 F.2D
707, REVERSED AND REMANDED. 


PETITIONER'S WIFE WAS BLUDGEONED TO DEATH JULY 4, 1954.  FROM THE
OUTSET OFFICIALS FOCUSED SUSPICION ON PETITIONER, WHO WAS ARRESTED ON A
MURDER CHARGE JULY 30 AND INDICTED AUGUST 17.  HIS TRIAL BEGAN OCTOBER
18 AND TERMINATED WITH HIS CONVICTION DECEMBER 21, 1954.  DURING THE
ENTIRE PRETRIAL PERIOD VIRULENT AND INCRIMINATING PUBLICITY ABOUT
PETITIONER AND THE MURDER MADE THE CASE NOTORIOUS, AND THE NEWS MEDIA
FREQUENTLY AIRED CHARGES AND COUNTERCHARGES BESIDES THOSE FOR WHICH
PETITIONER WAS TRIED.  THREE MONTHS BEFORE TRIAL HE WAS EXAMINED FOR
MORE THAN FIVE HOURS WITHOUT COUNSEL IN A TELEVISED THREE-DAY INQUEST
CONDUCTED BEFORE AN AUDIENCE OF SEVERAL HUNDRED SPECTATORS IN A
GYMNASIUM.  OVER THREE WEEKS BEFORE TRIAL THE NEWSPAPERS PUBLISHED THE
NAMES AND ADDRESSES OF PROSPECTIVE JURORS CAUSING THEM TO RECEIVE
LETTERS AND TELEPHONE CALLS ABOUT THE CASE.  THE TRIAL BEGAN TWO WEEKS
BEFORE A HOTLY CONTESTED ELECTION AT WHICH THE CHIEF PROSECUTOR AND THE
TRIAL JUDGE WERE CANDIDATES FOR JUDGESHIPS.  NEWSMEN WERE ALLOWED TO
TAKE OVER ALMOST THE ENTIRE SMALL COURTROOM, HOUNDING PETITIONER, AND
MOST OF THE PARTICIPANTS.  TWENTY REPORTERS WERE ASSIGNED SEATS BY THE
COURT WITHIN THE BAR AND IN CLOSE PROXIMITY TO THE JURY AND COUNSEL,
PRECLUDING PRIVACY BETWEEN PETITIONER AND HIS COUNSEL.  THE MOVEMENT OF
THE REPORTERS IN THE COURTROOM CAUSED FREQUENT CONFUSION AND DISRUPTED
THE TRIAL; AND IN THE CORRIDORS AND ELSEWHERE IN AND AROUND THE
COURTHOUSE THEY WERE ALLOWED FREE REIN BY THE TRIAL JUDGE.  A
BROADCASTING STATION WAS ASSIGNED SPACE NEXT TO THE JURY ROOM.  BEFORE
THE JURORS BEGAN DELIBERATIONS THEY WERE NOT SEQUESTERED AND HAD ACCESS
TO ALL NEWS MEDIA THOUGH THE COURT MADE "SUGGESTIONS" AND "REQUESTS"
THAT THE JURORS NOT EXPOSE THEMSELVES TO COMMENT ABOUT THE CASE. 
THOUGH THEY WERE SEQUESTERED DURING THE FIVE DAYS AND FOUR NIGHTS OF
THEIR DELIBERATIONS, THE JURORS WERE ALLOWED TO MAKE INADEQUATELY
SUPERVISED TELEPHONE CALLS DURING THAT PERIOD.  PERVASIVE PUBLICITY WAS
GIVEN TO THE CASE THROUGHOUT THE TRIAL, MUCH OF IT INVOLVING
INCRIMINATING MATTER NOT INTRODUCED AT THE TRIAL, AND THE JURORS WERE
THRUST INTO THE ROLE OF CELEBRITIES.  AT LEAST SOME OF THE PUBLICITY
DELUGE REACHED THE JURORS.  AT THE VERY INCEPTION OF THE PROCEEDINGS
AND LATER, THE TRIAL JUDGE ANNOUNCED THAT NEITHER HE NOR ANYONE ELSE
COULD RESTRICT THE PREJUDICIAL NEWS ACCOUNTS.  DESPITE HIS AWARENESS OF
THE EXCESSIVE PRETRIAL PUBLICITY, THE TRIAL JUDGE FAILED TO TAKE
EFFECTIVE MEASURES AGAINST THE MASSIVE PUBLICITY WHICH CONTINUED
THROUGHOUT THE TRIAL OR TO TAKE ADEQUATE STEPS TO CONTROL THE CONDUCT
OF THE TRIAL.  THE PETITIONER FILED A HABEAS CORPUS PETITION CONTENDING
THAT HE DID NOT RECEIVE A FAIR TRIAL.  THE DISTRICT COURT GRANTED THE
WRIT.  THE COURT OF APPEALS REVERSED.  HELD: 

1.  THE MASSIVE, PERVASIVE, AND PREJUDICIAL PUBLICITY ATTENDING
PETITIONER'S PROSECUTION PREVENTED HIM FROM RECEIVING A FAIR TRIAL
CONSISTENT WITH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
PP. 349-363. 

(A)  THOUGH FREEDOM OF DISCUSSION SHOULD BE GIVEN THE WIDEST RANGE
COMPATIBLE WITH THE FAIR AND ORDERLY ADMINISTRATION OF JUSTICE, IT MUST
NOT BE ALLOWED TO DIVERT A TRIAL FROM ITS PURPOSE OF ADJUDICATING
CONTROVERSIES ACCORDING TO LEGAL PROCEDURES BASED ON EVIDENCE RECEIVED
ONLY IN OPEN COURT.  PP. 350-351. 

(B)  IDENTIFIABLE PREJUDICE TO THE ACCUSED NEED NOT BE SHOWN IF, AS
IN ESTES V. TEXAS, 381 U.S. 532, AND EVEN MORE SO IN THIS CASE, THE
TOTALITY OF THE CIRCUMSTANCES RAISES THE PROBABILITY OF PREJUDICE.  PP.
352-355. 

(C)  THE TRIAL COURT FAILED TO INVOKE PROCEDURES WHICH WOULD HAVE
GUARANTEED PETITIONER A FAIR TRIAL, SUCH AS ADOPTING STRICTER RULES FOR
USE OF THE COURTROOM BY NEWSMEN AS PETITIONER'S COUNSEL REQUESTED,
LIMITING THEIR NUMBER, AND MORE CLOSELY SUPERVISING THEIR COURTROOM
CONDUCT.  THE COURT SHOULD ALSO HAVE INSULATED THE WITNESSES;
CONTROLLED THE RELEASE OF LEADS, INFORMATION, AND GOSSIP TO THE PRESS
BY POLICE OFFICERS, WITNESSES, AND COUNSEL; PROSCRIBED EXTRAJUDICIAL
STATEMENTS BY ANY LAWYER, WITNESS, PARTY, OR COURT OFFICIAL DIVULGING
PREJUDICIAL MATTERS; AND REQUESTED THE APPROPRIATE CITY AND COUNTY
OFFICIALS TO REGULATE RELEASE OF INFORMATION BY THEIR EMPLOYEES.  PP.
358-362. 

2.  THE CASE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO
RELEASE PETITIONER FROM CUSTODY UNLESS HE IS TRIED AGAIN WITHIN A
REASONABLE TIME.  P. 363. 

SHEPPARD V. MAXWELL, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS FEDERAL HABEAS CORPUS APPLICATION INVOLVES THE QUESTION WHETHER
SHEPPARD WAS DEPRIVED OF A FAIR TRIAL IN HIS STATE CONVICTION FOR THE
SECOND-DEGREE MURDER OF HIS WIFE BECAUSE OF THE TRIAL JUDGE'S FAILURE
TO PROTECT SHEPPARD SUFFICIENTLY FROM THE MASSIVE, PERVASIVE AND
PREJUDICIAL PUBLICITY THAT ATTENDED HIS PROSECUTION.  (FN1)  THE UNITED
STATES DISTRICT COURT HELD THAT HE WAS NOT AFFORDED A FAIR TRIAL AND
GRANTED THE WRIT SUBJECT TO THE STATE'S RIGHT TO PUT SHEPPARD TO TRIAL
AGAIN, 231 F. SUPP. 37 (D.C.S.D. OHIO 1964).  THE COURT OF APPEALS FOR
THE SIXTH CIRCUIT REVERSED BY A DIVIDED VOTE, 346 F.2D 707 (1965).  WE
GRANTED CERTIORARI, 382 U.S. 916 (1965).  WE HAVE CONCLUDED THAT
SHEPPARD DID NOT RECEIVE A FAIR TRIAL CONSISTENT WITH THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT AND, THEREFORE, REVERSE THE
JUDGMENT. 

                                           I. 

MARILYN SHEPPARD, PETITIONER'S PREGNANT WIFE, WAS BLUDGEONED TO DEATH
IN THE UPSTAIRS BEDROOM OF THEIR LAKESHORE HOME IN BAY VILLAGE, OHIO, A
SUBURB OF CLEVELAND.  ON THE DAY OF THE TRAGEDY, JULY 4, 1954, SHEPPARD
PIECED TOGETHER FOR SEVERAL LOCAL OFFICIALS THE FOLLOWING STORY:  HE
AND HIS WIFE HAD ENTERTAINED NEIGHBORHOOD FRIENDS, THE AHERNS, ON THE
PREVIOUS EVENING AT THEIR HOME.  AFTER DINNER THEY WATCHED TELEVISION
IN THE LIVING ROOM.  SHEPPARD BECAME DROWSY AND DOZED OFF TO SLEEP ON A
COUCH.  LATER, MARILYN PARTIALLY AWOKE HIM SAYING THAT SHE WAS GOING TO
BED.  THE NEXT THING HE REMEMBERED WAS HEARING HIS WIFE CRY OUT IN THE
EARLY MORNING HOURS.  HE HURRIED UPSTAIRS AND IN THE DIM LIGHT FROM THE
HALL SAW A "FORM" STANDING NEXT TO HIS WIFE'S BED.  AS HE STRUGGLED
WITH THE "FORM" HE WAS STRUCK ON THE BACK OF THE NECK AND RENDERED
UNCONSCIOUS.  ON REGAINING HIS SENSES HE FOUND HIMSELF ON THE FLOOR
NEXT TO HIS WIFE'S BED.  HE ROSE, LOOKED AT HER, TOOK HER PULSE AND
"FELT THAT SHE WAS GONE."  HE THEN WENT TO HIS SON'S ROOM AND FOUND HIM
UNMOLESTED.  HEARING A NOISE HE HURRIED DOWNSTAIRS.  HE SAW A "FORM"
RUNNING OUT THE DOOR AND PURSUED IT TO THE LAKE SHORE.  HE GRAPPLED
WITH IT ON THE BEACH AND AGAIN LOST CONSCIOUSNESS.  UPON HIS RECOVERY
HE WAS LYING FACE DOWN WITH THE LOWER PORTION OF HIS BODY IN THE
WATER.  HE RETURNED TO HIS HOME, CHECKED THE PULSE ON HIS WIFE'S NECK,
AND "DETERMINED OR THOUGHT THAT SHE WAS GONE."  (FN2)  HE THEN WENT
DOWNSTAIRS AND CALLED A NEIGHBOR, MAYOR HOUK OF BAY VILLAGE.  THE MAYOR
AND HIS WIFE CAME OVER AT ONCE, FOUND SHEPPARD SLUMPED IN AN EASY CHAIR
DOWNSTAIRS AND ASKED, "WHAT HAPPENED?"  SHEPPARD REPLIED:  "I DON'T
KNOW BUT SOMEBODY OUGHT TO TRY TO DO SOMETHING FOR MARILYN."  MRS. HOUK
IMMEDIATELY WENT UP TO THE BEDROOM.  THE MAYOR TOLD SHEPPARD, "GET HOLD
OF YOURSELF.  CAN YOU TELL ME WHAT HAPPENED?"  SHEPPARD THEN RELATED
THE ABOVE-OUTLINED EVENTS.  AFTER MRS. HOUK DISCOVERED THE BODY, THE
MAYOR CALLED THE LOCAL POLICE, DR. RICHARD SHEPPARD, PETITIONER'S
BROTHER, AND THE AHERNS.  THE LOCAL POLICE WERE THE FIRST TO ARRIVE. 
THEY IN TURN NOTIFIED THE CORONER AND CLEVELAND POLICE.  RICHARD
SHEPPARD THEN ARRIVED, DETERMINED THAT MARILYN WAS DEAD, EXAMINED HIS
BROTHER'S INJURIES, AND REMOVED HIM TO THE NEARBY CLINIC OPERATED BY
THE SHEPPARD FAMILY.  (FN3)  WHEN THE CORONER, THE CLEVELAND POLICE AND
OTHER OFFICIALS ARRIVED, THE HOUSE AND SURROUNDING AREA WERE THOROUGHLY
SEARCHED, THE ROOMS OF THE HOUSE WERE PHOTOGRAPHED, AND MANY PERSONS,
INCLUDING THE HOUKS AND THE AHERNS, WERE INTERROGATED.  THE SHEPPARD
HOME AND PREMISES WERE TAKEN INTO "PROTECTIVE CUSTODY" AND REMAINED SO
UNTIL AFTER THE TRIAL.  (FN4) 

FROM THE OUTSET OFFICIALS FOCUSED SUSPICION ON SHEPPARD.  AFTER A
SEARCH OF THE HOUSE AND PREMISES ON THE MORNING OF THE TRAGEDY, DR.
GERBER, THE CORONER, IS REPORTED - AND IT IS UNDENIED - TO HAVE TOLD
HIS MEN, "WELL, IT IS EVIDENT THE DOCTOR DID THIS, SO LET'S GO GET THE
CONFESSION OUT OF HIM."  HE PROCEEDED TO INTERROGATE AND EXAMINE
SHEPPARD WHILE THE LATTER WAS UNDER SEDATION IN HIS HOSPITAL ROOM.  ON
THE SAME OCCASION, THE CORONER WAS GIVEN THE CLOTHES SHEPPARD WORE AT
THE TIME OF THE TRAGEDY TOGETHER WITH THE PERSONAL ITEMS IN THEM. 
LATER THAT AFTERNOON CHIEF EATON AND TWO CLEVELAND POLICE OFFICERS
INTERROGATED SHEPPARD AT SOME LENGTH, CONFRONTING HIM WITH EVIDENCE AND
DEMANDING EXPLANATIONS.  ASKED BY OFFICER SHOTKE TO TAKE A LIE DETECTOR
TEST, SHEPPARD SAID HE WOULD IF IT WERE RELIABLE.  SHOTKE REPLIED THAT
IT WAS "INFALLIBLE" AND "YOU MIGHT AS WELL TELL US ALL ABOUT IT NOW." 
AT THE END OF THE INTERROGATION SHOTKE TOLD SHEPPARD:  "I THINK YOU
KILLED YOUR WIFE."  STILL LATER IN THE SAME AFTERNOON A PHYSICIAN SENT
BY THE CORONER WAS PERMITTED TO MAKE A DETAILED EXAMINATION OF
SHEPPARD.  UNTIL THE CORONER'S INQUEST ON JULY 22, AT WHICH TIME HE WAS
SUBPOENAED, SHEPPARD MADE HIMSELF AVAILABLE FOR FREQUENT AND EXTENDED
QUESTIONING WITHOUT THE PRESENCE OF AN ATTORNEY. 

ON JULY 7, THE DAY OF MARILYN SHEPPARD'S FUNERAL, A NEWSPAPER STORY
APPEARED IN WHICH ASSISTANT COUNTY ATTORNEY MAHON - LATER THE CHIEF
PROSECUTOR OF SHEPPARD - SHARPLY CRITICIZED THE REFUSAL OF THE SHEPPARD
FAMILY TO PERMIT HIS IMMEDIATE QUESTIONING.  FROM THERE ON HEADLINE
STORIES REPEATEDLY STRESSED SHEPPARD'S LACK OF COOPERATION WITH THE
POLICE AND OTHER OFFICIALS.  UNDER THE HEADLINE "TESTIFY NOW IN DEATH,
BAY DOCTOR IS ORDERED," ONE STORY DESCRIBED A VISIT BY CORONER GERBER
AND FOUR POLICE OFFICERS TO THE HOSPITAL ON JULY 8.  WHEN SHEPPARD
INSISTED THAT HIS LAWYER BE PRESENT, THE CORONER WROTE OUT A SUBPOENA
AND SERVED IT ON HIM.  SHEPPARD THEN AGREED TO SUBMIT TO QUESTIONING
WITHOUT COUNSEL AND THE SUBPOENA WAS TORN UP.  THE OFFICERS QUESTIONED
HIM FOR SEVERAL HOURS.  ON JULY 9, SHEPPARD, AT THE REQUEST OF THE
CORONER, RE-ENACTED THE TRAGEDY AT HIS HOME BEFORE THE CORONER, POLICE
OFFICERS, AND A GROUP OF NEWSMEN, WHO APPARENTLY WERE INVITED BY THE
CORONER.  THE HOME WAS LOCKED SO THAT SHEPPARD WAS OBLIGED TO WAIT
OUTSIDE UNTIL THE CORONER ARRIVED.  SHEPPARD'S PERFORMANCE WAS REPORTED
IN DETAIL BY THE NEWS MEDIA ALONG WITH PHOTOGRAPHS.  THE NEWSPAPERS
ALSO PLAYED UP SHEPPARD'S REFUSAL TO TAKE A LIE DETECTOR TEST AND "THE
PROTECTIVE RING" THROWN UP BY HIS FAMILY.  FRONT-PAGE NEWSPAPER
HEADLINES ANNOUNCED ON THE SAME DAY THAT "DOCTOR BALKS AT LIE TEST;
RETELLS STORY."  A COLUMN OPPOSITE THAT STORY CONTAINED AN "EXCLUSIVE"
INTERVIEW WITH SHEPPARD HEADLINED:  "'LOVED MY WIFE, SHE LOVED ME,'
SHEPPARD TELLS NEWS REPORTER."  THE NEXT DAY, ANOTHER HEADLINE STORY
DISCLOSED THAT SHEPPARD HAD "AGAIN LATE YESTERDAY REFUSED TO TAKE A LIE
DETECTOR TEST" AND QUOTED AN ASSISTANT COUNTY ATTORNEY AS SAYING THAT
"AT THE END OF A NINE-HOUR QUESTIONING OF DR. SHEPPARD, I FELT HE WAS
NOW RULING A TEST OUT COMPLETELY."  BUT SUBSEQUENT NEWSPAPER ARTICLES
REPORTED THAT THE CORONER WAS STILL PUSHING SHEPPARD FOR A LIE DETECTOR
TEST.  MORE STORIES APPEARED WHEN SHEPPARD WOULD NOT ALLOW AUTHORITIES
TO INJECT HIM WITH "TRUTH SERUM."  (FN5) 

ON THE 20TH, THE "EDITORIAL ARTILLERY" OPENED FIRE WITH A FRONT-PAGE
CHARGE THAT SOMEBODY IS "GETTING AWAY WITH MURDER."  THE EDITORIAL
ATTRIBUTED THE INEPTNESS OF THE INVESTIGATION TO "FRIENDSHIPS,
RELATIONSHIPS, HIRED LAWYERS, A HUSBAND WHO OUGHT TO HAVE BEEN
SUBJECTED INSTANTLY TO THE SAME THIRD-DEGREE TO WHICH ANY OTHER PERSON
UNDER SIMILAR CIRCUMSTANCES IS SUBJECTED  ...  ."  THE FOLLOWING DAY,
JULY 21, ANOTHER PAGE-ONE EDITORIAL WAS HEADED:  "WHY NO INQUEST?  DO
IT NOW, DR. GERBER."  THE CORONER CALLED AN INQUEST THE SAME DAY AND
SUBPOENAED SHEPPARD.  IT WAS STAGED THE NEXT DAY IN A SCHOOL GYMNASIUM;
THE CORONER PRESIDED WITH THE COUNTY PROSECUTOR AS HIS ADVISOR AND TWO
DETECTIVES AS BAILIFFS.  IN THE FRONT OF THE ROOM WAS A LONG TABLE
OCCUPIED BY REPORTERS, TELEVISION AND RADIO PERSONNEL, AND BROADCASTING
EQUIPMENT.  THE HEARING WAS BROADCAST WITH LIVE MICROPHONES PLACED AT
THE CORONER'S SEAT AND THE WITNESS STAND.  A SWARM OF REPORTERS AND
PHOTOGRAPHERS ATTENDED.  SHEPPARD WAS BROUGHT INTO THE ROOM BY POLICE
WHO SEARCHED HIM IN FULL VIEW OF SEVERAL HUNDRED SPECTATORS. 
SHEPPARD'S COUNSEL WERE PRESENT DURING THE THREE-DAY INQUEST BUT WERE
NOT PERMITTED TO PARTICIPATE.  WHEN SHEPPARD'S CHIEF COUNSEL ATTEMPTED
TO PLACE SOME DOCUMENTS IN THE RECORD, HE WAS FORCIBLY EJECTED FROM THE
ROOM BY THE CORONER, WHO RECEIVED CHEERS, HUGS, AND KISSES FROM LADIES
IN THE AUDIENCE.  SHEPPARD WAS QUESTIONED FOR FIVE AND ONE-HALF HOURS
ABOUT HIS ACTIONS ON THE NIGHT OF THE MURDER, HIS MARRIED LIFE, AND A
LOVE AFFAIR WITH SUSAN HAYES.  (FN6)  AT THE END OF THE HEARING THE
CORONER ANNOUNCED THAT HE "COULD" ORDER SHEPPARD HELD FOR THE GRAND
JURY, BUT DID NOT DO SO. 

THROUGHOUT THIS PERIOD THE NEWSPAPERS EMPHASIZED EVIDENCE THAT TENDED
TO INCRIMINATE SHEPPARD AND POINTED OUT DISCREPANCIES IN HIS STATEMENTS
TO AUTHORITIES.  AT THE SAME TIME, SHEPPARD MADE MANY PUBLIC STATEMENTS
TO THE PRESS AND WROTE FEATURE ARTICLES ASSERTING HIS INNOCENCE.  (FN7)
DURING THE INQUEST ON JULY 26, A HEADLINE IN LARGE TYPE STATED:  "KERR
CAPTAIN OF THE CLEVELAND POLICE URGES SHEPPARD'S ARREST."  IN THE
STORY, DETECTIVE MCARTHUR "DISCLOSED THAT SCIENTIFIC TESTS AT THE
SHEPPARD HOME HAVE DEFINITELY ESTABLISHED THAT THE KILLER WASHED OFF A
TRAIL OF BLOOD FROM THE MURDER BEDROOM TO THE DOWNSTAIRS SECTION," A
CIRCUMSTANCE CASTING DOUBT ON SHEPPARD'S ACCOUNTS OF THE MURDER.  NO
SUCH EVIDENCE WAS PRODUCED AT TRIAL.  THE NEWSPAPERS ALSO DELVED INTO
SHEPPARD'S PERSONAL LIFE.  ARTICLES STRESSED HIS EXTRAMARITAL LOVE
AFFAIRS AS A MOTIVE FOR THE CRIME.  THE NEWSPAPERS PORTRAYED SHEPPARD
AS A LOTHARIO, FULLY EXPLORED HIS RELATIONSHIP WITH SUSAN HAYES, AND
NAMED A NUMBER OF OTHER WOMEN WHO WERE ALLEGEDLY INVOLVED WITH HIM. 
THE TESTIMONY AT TRIAL NEVER SHOWED THAT SHEPPARD HAD ANY ILLICIT
RELATIONSHIPS BESIDES THE ONE WITH SUSAN HAYES. 

ON JULY 28, AN EDITORIAL ENTITLED "WHY DON'T POLICE QUIZ TOP SUSPECT"
DEMANDED THAT SHEPPARD BE TAKEN TO POLICE HEADQUARTERS.  IT DESCRIBED
HIM IN THE FOLLOWING LANGUAGE: 

"NOW PROVED UNDER OATH TO BE A LIAR, STILL FREE TO GO ABOUT HIS
BUSINESS, SHIELDED BY HIS FAMILY, PROTECTED BY A SMART LAWYER WHO HAS
MADE MONKEYS OF THE POLICE AND AUTHORITIES, CARRYING A GUN PART OF THE
TIME, LEFT FREE TO DO WHATEVER HE PLEASES  ...  ." 

A FRONT-PAGE EDITORIAL ON JULY 30 ASKED:  "WHY ISN'T SAM SHEPPARD IN
JAIL?"  IT WAS LATER TITLED "QUIT STALLING - BRING HIM IN."  AFTER
CALLING SHEPPARD "THE MOST UNUSUAL MURDER SUSPECT EVER SEEN AROUND
THESE PARTS" THE ARTICLE SAID THAT "EXCEPT FOR SOME SUPERFICIAL
QUESTIONING DURING CORONER SAM GERBER'S INQUEST HE HAS BEEN SCOT-FREE
OF ANY OFFICIAL GRILLING  ...  ."  IT ASSERTED THAT HE WAS "SURROUNDED
BY AN IRON CURTAIN OF PROTECTION AND CONCEALMENT." 

THAT NIGHT AT 10 O'CLOCK SHEPPARD WAS ARRESTED AT HIS FATHER'S HOME
ON A CHARGE OF MURDER.  HE WAS TAKEN TO THE BAY VILLAGE CITY HALL WHERE
HUNDREDS OF PEOPLE, NEWSCASTERS, PHOTOGRAPHERS AND REPORTERS WERE
AWAITING HIS ARRIVAL.  HE WAS IMMEDIATELY ARRAIGNED - HAVING BEEN
DENIED A TEMPORARY DELAY TO SECURE THE PRESENCE OF COUNSEL - AND BOUND
OVER TO THE GRAND JURY. 

THE PUBLICITY THEN GREW IN INTENSITY UNTIL HIS INDICTMENT ON AUGUST
17.  TYPICAL OF THE COVERAGE DURING THIS PERIOD IS A FRONT-PAGE
INTERVIEW ENTITLED:  "DR. SAM:  'I WISH THERE WAS SOMETHING I COULD GET
OFF MY CHEST - BUT THERE ISN'T.'"  UNFAVORABLE PUBLICITY INCLUDED ITEMS
SUCH AS A CARTOON OF THE BODY OF A SPHINX WITH SHEPPARD'S HEAD AND THE
LEGEND BELOW:  "'I WILL DO EVERYTHING IN MY POWER TO HELP SOLVE THIS
TERRIBLE MURDER.'  - DR. SAM SHEPPARD."  HEADLINES ANNOUNCED, INTER
ALIA, THAT:  "DOCTOR EVIDENCE IS READY FOR JURY," "CORRIGAN TACTICS
STALL QUIZZING," "SHEPPARD 'GAY SET' IS REVEALED BY HOUK," "BLOOD IS
FOUND IN GARAGE," "NEW MURDER EVIDENCE IS FOUND, POLICE CLAIM," "DR.
SAM FACES QUIZ AT JAIL ON MARILYN'S FEAR OF HIM."  ON AUGUST 18, AN
ARTICLE APPEARED UNDER THE HEADLINE "DR. SAM WRITES HIS OWN STORY." 
AND REPRODUCED ACROSS THE ENTIRE FRONT PAGE WAS A PORTION OF THE TYPED
STATEMENT SIGNED BY SHEPPARD:  "I AM NOT GUILTY OF THE MURDER OF MY
WIFE, MARILYN.  HOW COULD I, WHO HAVE BEEN TRAINED TO HELP PEOPLE AND
DEVOTED MY LIFE TO SAVING LIFE, COMMIT SUCH A TERRIBLE AND REVOLTING
CRIME?"  WE DO NOT DETAIL THE COVERAGE FURTHER.  THERE ARE FIVE VOLUMES
FILLED WITH SIMILAR CLIPPINGS FROM EACH OF THE THREE CLEVELAND
NEWSPAPERS COVERING THE PERIOD FROM THE MURDER UNTIL SHEPPARD'S
CONVICTION IN DECEMBER 1954.  THE RECORD INCLUDES NO EXCERPTS FROM
NEWSCASTS ON RADIO AND TELEVISION BUT SINCE SPACE WAS RESERVED IN THE
COURTROOM FOR THESE MEDIA WE ASSUME THAT THEIR COVERAGE WAS EQUALLY
LARGE. 

                                            II. 

WITH THIS BACKGROUND THE CASE CAME ON FOR TRIAL TWO WEEKS BEFORE THE
NOVEMBER GENERAL ELECTION AT WHICH THE CHIEF PROSECUTOR WAS A CANDIDATE
FOR COMMON PLEAS JUDGE AND THE TRIAL JUDGE, JUDGE BLYTHIN, WAS A
CANDIDATE TO SUCCEED HIMSELF.  TWENTY-FIVE DAYS BEFORE THE CASE WAS
SET, 75 VENIREMEN WERE CALLED AS PROSPECTIVE JURORS.  ALL THREE
CLEVELAND NEWSPAPERS PUBLISHED THE NAMES AND ADDRESSES OF THE
VENIREMEN.  AS A CONSEQUENCE, ANONYMOUS LETTERS AND TELEPHONE CALLS, AS
WELL AS CALLS FROM FRIENDS, REGARDING THE IMPENDING PROSECUTION WERE
RECEIVED BY ALL OF THE PROSPECTIVE JURORS.  THE SELECTION OF THE JURY
BEGAN ON OCTOBER 18, 1954.    THE COURTROOM IN WHICH THE TRIAL WAS HELD
MEASURED 26 BY 48 FEET.  A LONG TEMPORARY TABLE WAS SET UP INSIDE THE
BAR, IN BACK OF THE SINGLE COUNSEL TABLE.  IT RAN THE WIDTH OF THE
COURTROOM, PARALLEL TO THE BAR RAILING, WITH ONE END LESS THAN THREE
FEET FROM THE JURY BOX.  APPROXIMATELY 20 REPRESENTATIVES OF NEWSPAPERS
AND WIRE SERVICES WERE ASSIGNED SEATS AT THIS TABLE BY THE COURT. 
BEHIND THE BAR RAILING THERE WERE FOUR ROWS OF BENCHES.  THESE SEATS
WERE LIKEWISE ASSIGNED BY THE COURT FOR THE ENTIRE TRIAL.  THE FIRST
ROW WAS OCCUPIED BY REPRESENTATIVES OF TELEVISION AND RADIO STATIONS,
AND THE SECOND AND THIRD ROWS BY REPORTERS FROM OUT-OF-TOWN NEWSPAPERS
AND MAGAZINES.  ONE SIDE OF THE LAST ROW, WHICH ACCOMMODATED 14 PEOPLE,
WAS ASSIGNED TO SHEPPARD'S FAMILY AND THE OTHER TO MARILYN'S.  THE
PUBLIC WAS PERMITTED TO FILL VACANCIES IN THIS ROW ON SPECIAL PASSES
ONLY.  REPRESENTATIVES OF THE NEWS MEDIA ALSO USED ALL THE ROOMS ON THE
COURTROOM FLOOR, INCLUDING THE ROOM WHERE CASES WERE ORDINARILY CALLED
AND ASSIGNED FOR TRIAL.  PRIVATE TELEPHONE LINES AND TELEGRAPHIC
EQUIPMENT WERE INSTALLED IN THESE ROOMS SO THAT REPORTS FROM THE TRIAL
COULD BE SPEEDED TO THE PAPERS.  STATION WSRS WAS PERMITTED TO SET UP
BROADCASTING FACILITIES ON THE THIRD FLOOR OF THE COURTHOUSE NEXT DOOR
TO THE JURY ROOM, WHERE THE JURY RESTED DURING RECESSES IN THE TRIAL
AND DELIBERATED.  NEWSCASTS WERE MADE FROM THIS ROOM THROUGHOUT THE
TRIAL, AND WHILE THE JURY REACHED ITS VERDICT. 

ON THE SIDEWALK AND STEPS IN FRONT OF THE COURTHOUSE, TELEVISION AND
NEWSREEL CAMERAS WERE OCCASIONALLY USED TO TAKE MOTION PICTURES OF THE
PARTICIPANTS IN THE TRIAL, INCLUDING THE JURY AND THE JUDGE.  INDEED,
ONE TELEVISION BROADCAST CARRIED A STAGED INTERVIEW OF THE JUDGE AS HE
ENTERED THE COURTHOUSE.  IN THE CORRIDORS OUTSIDE THE COURTROOM THERE
WAS A HOST OF PHOTOGRAPHERS AND TELEVISION PERSONNEL WITH FLASH
CAMERAS, PORTABLE LIGHTS AND MOTION PICTURE CAMERAS.  THIS GROUP
PHOTOGRAPHED THE PROSPECTIVE JURORS DURING SELECTION OF THE JURY. 
AFTER THE TRIAL OPENED, THE WITNESSES, COUNSEL, AND JURORS WERE
PHOTOGRAPHED AND TELEVISED WHENEVER THEY ENTERED OR LEFT THE
COURTROOM.  SHEPPARD WAS BROUGHT TO THE COURTROOM ABOUT 10 MINUTES
BEFORE EACH SESSION BEGAN; HE WAS SURROUNDED BY REPORTERS AND
EXTENSIVELY PHOTOGRAPHED FOR THE NEWSPAPERS AND TELEVISION.  A RULE OF
COURT PROHIBITED PICTURE-TAKING IN THE COURTROOM DURING THE ACTUAL
SESSIONS OF THE COURT, BUT NO RESTRAINTS WERE PUT ON PHOTOGRAPHERS
DURING RECESSES, WHICH WERE TAKEN ONCE EACH MORNING AND AFTERNOON, WITH
A LONGER PERIOD FOR LUNCH. 

ALL OF THESE ARRANGEMENTS WITH THE NEWS MEDIA AND THEIR MASSIVE
COVERAGE OF THE TRIAL CONTINUED DURING THE ENTIRE NINE WEEKS OF THE
TRIAL.  THE COURTROOM REMAINED CROWDED TO CAPACITY WITH REPRESENTATIVES
OF NEWS MEDIA.  THEIR MOVEMENT IN AND OUT OF THE COURTROOM OFTEN CAUSED
SO MUCH CONFUSION THAT, DESPITE THE LOUD-SPEAKER SYSTEM INSTALLED IN
THE COURTROOM, IT WAS DIFFICULT FOR THE WITNESSES AND COUNSEL TO BE
HEARD.  FURTHERMORE, THE REPORTERS CLUSTERED WITHIN THE BAR OF THE
SMALL COURTROOM MADE CONFIDENTIAL TALK AMONG SHEPPARD AND HIS COUNSEL
ALMOST IMPOSSIBLE DURING THE PROCEEDINGS.  THEY FREQUENTLY HAD TO LEAVE
THE COURTROOM TO OBTAIN PRIVACY.  AND MANY TIMES WHEN COUNSEL WISHED TO
RAISE A POINT WITH THE JUDGE OUT OF THE HEARING OF THE JURY IT WAS
NECESSARY TO MOVE TO THE JUDGE'S CHAMBERS.  EVEN THEN, NEWS MEDIA
REPRESENTATIVES SO PACKED THE JUDGE'S ANTEROOM THAT COUNSEL COULD
HARDLY RETURN FROM THE CHAMBERS TO THE COURTROOM.  THE REPORTERS VIED
WITH EACH OTHER TO FIND OUT WHAT COUNSEL AND THE JUDGE HAD DISCUSSED,
AND OFTEN THESE MATTERS LATER APPEARED IN NEWSPAPERS ACCESSIBLE TO THE
JURY. 

THE DAILY RECORD OF THE PROCEEDINGS WAS MADE AVAILABLE TO THE
NEWSPAPERS AND THE TESTIMONY OF EACH WITNESS WAS PRINTED VERBATIM IN
THE LOCAL EDITIONS, ALONG WITH OBJECTIONS OF COUNSEL, AND RULINGS BY
THE JUDGE.  PICTURES OF SHEPPARD, THE JUDGE, COUNSEL, PERTINENT
WITNESSES, AND THE JURY OFTEN ACCOMPANIED THE DAILY NEWSPAPER AND
TELEVISION ACCOUNTS.  AT TIMES THE NEWSPAPERS PUBLISHED PHOTOGRAPHS OF
EXHIBITS INTRODUCED AT THE TRIAL, AND THE ROOMS OF SHEPPARD'S HOUSE
WERE FEATURED ALONG WITH RELEVANT TESTIMONY. 

THE JURORS THEMSELVES WERE CONSTANTLY EXPOSED TO THE NEWS MEDIA. 
EVERY JUROR, EXCEPT ONE, TESTIFIED AT VOIR DIRE TO READING ABOUT THE
CASE IN THE CLEVELAND PAPERS OR TO HAVING HEARD BROADCASTS ABOUT IT.
SEVEN OF THE 12 JURORS WHO RENDERED THE VERDICT HAD ONE OR MORE
CLEVELAND PAPERS DELIVERED IN THEIR HOME; THE REMAINING JURORS WERE NOT
INTERROGATED ON THE POINT.  NOR WERE THERE QUESTIONS AS TO RADIOS OR
TELEVISION SETS IN THE JURORS' HOMES, BUT WE MUST ASSUME THAT MOST OF
THEM OWNED SUCH CONVENIENCES.  AS THE SELECTION OF THE JURY PROGRESSED,
INDIVIDUAL PICTURES OF PROSPECTIVE MEMBERS APPEARED DAILY.  DURING THE
TRIAL, PICTURES OF THE JURY APPEARED OVER 40 TIMES IN THE CLEVELAND
PAPERS ALONE.  THE COURT PERMITTED PHOTOGRAPHERS TO TAKE PICTURES OF
THE JURY IN THE BOX, AND INDIVIDUAL PICTURES OF THE MEMBERS IN THE JURY
ROOM.  ONE NEWSPAPER RAN PICTURES OF THE JURORS AT THE SHEPPARD HOME
WHEN THEY WENT THERE TO VIEW THE SCENE OF THE MURDER.  ANOTHER PAPER
FEATURED THE HOME LIFE OF AN ALTERNATE JUROR.  THE DAY BEFORE THE
VERDICT WAS RENDERED - WHILE THE JURORS WERE AT LUNCH AND SEQUESTERED
BY TWO BAILIFFS - THE JURY WAS SEPARATED INTO TWO GROUPS TO POSE FOR
PHOTOGRAPHS WHICH APPEARED IN THE NEWSPAPERS. 

            III. 

WE NOW REACH THE CONDUCT OF THE TRIAL.  WHILE THE INTENSE PUBLICITY
CONTINUED UNABATED, IT IS SUFFICIENT TO RELATE ONLY THE MORE FLAGRANT
EPISODES: 

1.  ON OCTOBER 9, 1954, NINE DAYS BEFORE THE CASE WENT TO TRIAL, AN
EDITORIAL IN ONE OF THE NEWSPAPERS CRITICIZED DEFENSE COUNSEL'S RANDOM
POLL OF PEOPLE ON THE STREETS AS TO THEIR OPINION OF SHEPPARD'S GUILT
OR INNOCENCE IN AN EFFORT TO USE THE RESULTING STATISTICS TO SHOW THE
NECESSITY FOR CHANGE OF VENUE.  THE ARTICLE SAID THE SURVEY "SMACKS OF
MASS JURY TAMPERING," CALLED ON DEFENSE COUNSEL TO DROP IT, AND STATED
THAT THE BAR ASSOCIATION SHOULD DO SOMETHING ABOUT IT.  IT
CHARACTERIZED THE POLL AS "NON-JUDICIAL, NON-LEGAL, AND NONSENSE."  THE
ARTICLE WAS CALLED TO THE ATTENTION OF THE COURT BUT NO ACTION WAS
TAKEN. 

2.  ON THE SECOND DAY OF VOIR DIRE EXAMINATION A DEBATE WAS STAGED
AND BROADCAST LIVE OVER WHK RADIO.  THE PARTICIPANTS, NEWSPAPER
REPORTERS, ACCUSED SHEPPARD'S COUNSEL OF THROWING ROADBLOCKS IN THE WAY
OF THE PROSECUTION AND ASSERTED THAT SHEPPARD CONCEDED HIS GUILT BY
HIRING A PROMINENT CRIMINAL LAWYER.  SHEPPARD'S COUNSEL OBJECTED TO
THIS BROADCAST AND REQUESTED A CONTINUANCE, BUT THE JUDGE DENIED THE
MOTION.  WHEN COUNSEL ASKED THE COURT TO GIVE SOME PROTECTION FROM SUCH
EVENTS, THE JUDGE REPLIED THAT "WHK DOESN'T HAVE MUCH COVERAGE," AND
THAT "AFTER ALL, WE ARE NOT TRYING THIS CASE BY RADIO OR IN NEWSPAPERS
OR ANY OTHER MEANS.  WE CONFINE OURSELVES SERIOUSLY TO IT IN THIS
COURTROOM AND DO THE VERY BEST WE CAN." 

3.  WHILE THE JURY WAS BEING SELECTED, A TWO-INCH HEADLINE ASKED:
"BUT WHO WILL SPEAK FOR MARILYN?"  THE FRONT-PAGE STORY SPOKE OF THE
"PERFECT FACE" OF THE ACCUSED.  "STUDY THAT FACE AS LONG AS YOU WANT. 
NEVER WILL YOU GET FROM IT A HINT OF WHAT MIGHT BE THE ANSWER  ...  ." 
THE TWO BROTHERS OF THE ACCUSED WERE DESCRIBED AS "PROSPEROUS, POISED. 
HIS TWO SISTERS-IN-LAW.  SMART, CHIC, WELL-GROOMED.  HIS ELDERLY
FATHER.  COURTLY, RESERVED.  A PERFECT TYPE FOR THE PATRIARCH OF A
STAUNCH CLAN."  THE AUTHOR THEN NOTED MARILYN SHEPPARD WAS "STILL OFF
STAGE," AND THAT SHE WAS AN ONLY CHILD WHOSE MOTHER DIED WHEN SHE WAS
VERY YOUNG AND WHOSE FATHER HAD NO INTEREST IN THE CASE.  BUT THE
AUTHOR - THROUGH QUOTES FROM DETECTIVE CHIEF JAMES MCARTHUR - ASSURED
READERS THAT THE PROSECUTION'S EXHIBITS WOULD SPEAK FOR MARILYN.  "HER
STORY," MCARTHUR STATED, "WILL COME INTO THIS COURTROOM THROUGH OUR
WITNESSES."  THE ARTICLE ENDS: 

"THEN YOU REALIZE HOW WHAT AND WHO IS MISSING FROM THE PERFECT
SETTING WILL BE SUPPLIED. 

"HOW IN THE BIG CASE JUSTICE WILL BE DONE. 

"JUSTICE TO SAM SHEPPARD. 

"AND TO MARILYN SHEPPARD." 

4.  AS HAS BEEN MENTIONED, THE JURY VIEWED THE SCENE OF THE MURDER ON
THE FIRST DAY OF THE TRIAL.  HUNDREDS OF REPORTERS, CAMERAMEN AND
ONLOOKERS WERE THERE, AND ONE REPRESENTATIVE OF THE NEWS MEDIA WAS
PERMITTED TO ACCOMPANY THE JURY WHILE IT INSPECTED THE SHEPPARD HOME. 
THE TIME OF THE JURY'S VISIT WAS REVEALED SO FAR IN ADVANCE THAT ONE OF
THE NEWSPAPERS WAS ABLE TO RENT A HELICOPTER AND FLY OVER THE HOUSE
TAKING PICTURES OF THE JURORS ON THEIR TOUR. 

5.  ON NOVEMBER 19, A CLEVELAND POLICE OFFICER GAVE TESTIMONY THAT
TENDED TO CONTRADICT DETAILS IN THE WRITTEN STATEMENT SHEPPARD MADE TO
THE CLEVELAND POLICE.  TWO DAYS LATER, IN A BROADCAST HEARD OVER
STATION WHK IN CLEVELAND, ROBERT CONSIDINE LIKENED SHEPPARD TO A
PERJURER AND COMPARED THE EPISODE TO ALGER HISS' CONFRONTATION WITH
WHITTAKER CHAMBERS.  THOUGH DEFENSE COUNSEL ASKED THE JUDGE TO QUESTION
THE JURY TO ASCERTAIN HOW MANY HEARD THE BROADCAST, THE COURT REFUSED
TO DO SO. THE JUDGE ALSO OVERRULED THE MOTION FOR CONTINUANCE BASED ON
THE SAME GROUND, SAYING: 

"WELL, I DON'T KNOW, WE CAN'T STOP PEOPLE, IN ANY EVENT, LISTENING TO
IT.  IT IS A MATTER OF FREE SPEECH, AND THE COURT CAN'T CONTROL
EVERYBODY  ...  .  WE ARE NOT GOING TO HARASS THE JURY EVERY MORNING
...  .  IT IS GETTING TO THE POINT WHERE IF WE DO IT EVERY MORNING, WE
ARE SUSPECTING THE JURY.  I HAVE CONFIDENCE IN THIS JURY  ...  ." 

6.  ON NOVEMBER 24, A STORY APPEARED UNDER AN EIGHT-COLUMN HEADLINE:
"SAM CALLED A 'JEKYLL-HYDE' BY MARILYN, COUSIN TO TESTIFY."  IT RELATED
THAT MARILYN HAD RECENTLY TOLD FRIENDS THAT SHEPPARD WAS A "DR. JEKYLL
AND MR. HYDE" CHARACTER.  NO SUCH TESTIMONY WAS EVER PRODUCED AT THE
TRIAL.  THE STORY WENT ON TO ANNOUNCE:  "THE PROSECUTION HAS A
'BOMBSHELL WITNESS' ON TAP WHO WILL TESTIFY TO DR. SAM'S DISPLAY OF
FIERY TEMPER - COUNTERING THE DEFENSE CLAIM THAT THE DEFENDANT IS A
GENTLE PHYSICIAN WITH AN EVEN DISPOSITION."  DEFENSE COUNSEL MADE
MOTIONS FOR CHANGE OF VENUE, CONTINUANCE AND MISTRIAL, BUT THEY WERE
DENIED.  NO ACTION WAS TAKEN BY THE COURT. 

7.  WHEN THE TRIAL WAS IN ITS SEVENTH WEEK, WALTER WINCHELL BROADCAST
OVER WXEL TELEVISION AND WJW RADIO THAT CAROLE BEASLEY, WHO WAS UNDER
ARREST IN NEW YORK CITY FOR ROBBERY, HAD STATED THAT, AS SHEPPARD'S
MISTRESS, SHE HAD BORNE HIM A CHILD.  THE DEFENSE ASKED THAT THE JURY
BE QUERIED ON THE BROADCAST.  TWO JURORS ADMITTED IN OPEN COURT THAT
THEY HAD HEARD IT.  THE JUDGE ASKED EACH:  "WOULD THAT HAVE ANY EFFECT
UPON YOUR JUDGMENT?"  BOTH REPLIED, "NO."  THIS WAS ACCEPTED BY THE
JUDGE AS SUFFICIENT; HE MERELY ASKED THE JURY TO "PAY NO ATTENTION
WHATEVER TO THAT TYPE OF SCAVENGING  ... .  LET'S CONFINE OURSELVES TO
THIS COURTROOM, IF YOU PLEASE."  IN ANSWER TO THE MOTION FOR MISTRIAL,
THE JUDGE SAID: 

"WELL, EVEN, SO, MR. CORRIGAN, HOW ARE YOU EVER GOING TO PREVENT
THOSE THINGS, IN ANY EVENT?  I DON'T JUSTIFY THEM AT ALL.  I THINK IT
IS OUTRAGEOUS, BUT IN A SENSE, IT IS OUTRAGEOUS EVEN IF THERE WERE NO
TRIAL HERE.  THE TRIAL HAS NOTHING TO DO WITH IT IN THE COURT'S MIND,
AS FAR AS ITS OUTRAGE IS CONCERNED, BUT: 

"MR. CORRIGAN:  I DON'T KNOW WHAT EFFECT IT HAD ON THE MIND OF ANY OF
THESE JURORS, AND I CAN'T FIND OUT UNLESS INQUIRY IS MADE. 

"THE COURT:  HOW WOULD YOU EVER, IN ANY JURY, AVOID THAT KIND OF A
THING?" 

8.  ON DECEMBER 9, WHILE SHEPPARD WAS ON THE WITNESS STAND HE
TESTIFIED THAT HE HAD BEEN MISTREATED BY CLEVELAND DETECTIVES AFTER HIS
ARREST.  ALTHOUGH HE WAS NOT AT THE TRIAL, CAPTAIN KERR OF THE HOMICIDE
BUREAU ISSUED A PRESS STATEMENT DENYING SHEPPARD'S ALLEGATIONS WHICH
APPEARED UNDER THE HEADLINE:  "'BARE-FACED LIAR,' KERR SAYS OF SAM." 
CAPTAIN KERR NEVER APPEARED AS A WITNESS AT THE TRIAL. 

9.  AFTER THE CASE WAS SUBMITTED TO THE JURY, IT WAS SEQUESTERED FOR
ITS DELIBERATIONS, WHICH TOOK FIVE DAYS AND FOUR NIGHTS.  AFTER THE
VERDICT, DEFENSE COUNSEL ASCERTAINED THAT THE JURORS HAD BEEN ALLOWED
TO MAKE TELEPHONE CALLS TO THEIR HOMES EVERY DAY WHILE THEY WERE
SEQUESTERED AT THE HOTEL.  ALTHOUGH THE TELEPHONES HAD BEEN REMOVED
FROM THE JURORS' ROOMS, THE JURORS WERE PERMITTED TO USE THE PHONES IN
THE BAILIFFS' ROOMS.  THE CALLS WERE PLACED BY THE JURORS THEMSELVES;
NO RECORD WAS KEPT OF THE JURORS WHO MADE CALLS, THE TELEPHONE NUMBERS
OR THE PARTIES CALLED.  THE BAILIFFS SAT IN THE ROOM WHERE THEY COULD
HEAR ONLY THE JURORS' END OF THE CONVERSATION.  THE COURT HAD NOT
INSTRUCTED THE BAILIFFS TO PREVENT SUCH CALLS.  BY A SUBSEQUENT MOTION,
DEFENSE COUNSEL URGED THAT THIS GROUND ALONE WARRANTED A NEW TRIAL, BUT
THE MOTION WAS OVERRULED AND NO EVIDENCE WAS TAKEN ON THE QUESTION. 

         IV. 

THE PRINCIPLE THAT JUSTICE CANNOT SURVIVE BEHIND WALLS OF SILENCE HAS
LONG BEEN REFLECTED IN THE "ANGLO-AMERICAN DISTRUST FOR SECRET
TRIALS."  IN RE OLIVER, 333 U.S. 257, 268, (1948).  A RESPONSIBLE PRESS
HAS ALWAYS BEEN REGARDED AS THE HANDMAIDEN OF EFFECTIVE JUDICIAL
ADMINISTRATION, ESPECIALLY IN THE CRIMINAL FIELD.  ITS FUNCTION IN THIS
REGARD IS DOCUMENTED BY AN IMPRESSIVE RECORD OF SERVICE OVER SEVERAL
CENTURIES.  THE PRESS DOES NOT SIMPLY PUBLISH INFORMATION ABOUT TRIALS
BUT GUARDS AGAINST THE MISCARRIAGE OF JUSTICE BY SUBJECTING THE POLICE,
PROSECUTORS, AND JUDICIAL PROCESSES TO EXTENSIVE PUBLIC SCRUTINY AND
CRITICISM.  THIS COURT HAS, THEREFORE, BEEN UNWILLING TO PLACE ANY
DIRECT LIMITATIONS ON THE FREEDOM TRADITIONALLY EXERCISED BY THE NEWS
MEDIA FOR "WHAT TRANSPIRES IN THE COURT ROOM IS PUBLIC PROPERTY." 
CRAIG V. HARNEY, 331 U.S. 367, 374 (1947).  THE "UNQUALIFIED
PROHIBITIONS LAID DOWN BY THE FRAMERS WERE INTENDED TO GIVE TO LIBERTY
OF THE PRESS ...  THE BROADEST SCOPE THAT COULD BE COUNTENANCED IN AN
ORDERLY SOCIETY."  BRIDGES V. CALIFORNIA, 314 U.S. 252, 265 (1941). 
AND WHERE THERE WAS "NO THREAT OR MENACE TO THE INTEGRITY OF THE
TRIAL," CRAIG V. HARNEY, SUPRA, AT 377, WE HAVE CONSISTENTLY REQUIRED
THAT THE PRESS HAVE A FREE HAND, EVEN THOUGH WE SOMETIMES DEPLORED ITS
SENSATIONALISM.    BUT THE COURT HAS ALSO POINTED OUT THAT "LEGAL
TRIALS ARE NOT LIKE ELECTIONS, TO BE WON THROUGH THE USE OF THE MEETING
HALL, THE RADIO, AND THE NEWSPAPER."  BRIDGES V. CALIFORNIA, SUPRA, AT
271.  AND THE COURT HAS INSISTED THAT NO ONE BE PUNISHED FOR A CRIME
WITHOUT "A CHARGE FAIRLY MADE AND FAIRLY TRIED IN A PUBLIC TRIBUNAL
FREE OF PREJUDICE, PASSION, EXCITEMENT, AND TYRANNICAL POWER." 
CHAMBERS V. FLORIDA, 309 U.S. 227, 236-237 (1940).  "FREEDOM OF
DISCUSSION SHOULD BE GIVEN THE WIDEST RANGE COMPATIBLE WITH THE
ESSENTIAL REQUIREMENT OF THE FAIR AND ORDERLY ADMINISTRATION OF
JUSTICE."  PENNEKAMP V. FLORIDA, 328 U.S. 331, 347 (1946).  BUT IT MUST
NOT BE ALLOWED TO DIVERT THE TRIAL FROM THE "VERY PURPOSE OF A COURT
SYSTEM  ...  TO ADJUDICATE CONTROVERSIES, BOTH CRIMINAL AND CIVIL, IN
THE CALMNESS AND SOLEMNITY OF THE COURTROOM ACCORDING TO LEGAL
PROCEDURES."  COX V. LOUISIANA, 379 U.S. 559, 583 (1965)(BLACK, J.,
DISSENTING).  AMONG THESE "LEGAL PROCEDURES" IS THE REQUIREMENT THAT
THE JURY'S VERDICT BE BASED ON EVIDENCE RECEIVED IN OPEN COURT, NOT
FROM OUTSIDE SOURCES.  THUS, IN MARSHALL V. UNITED STATES, 360 U.S. 310
(1959), WE SET ASIDE A FEDERAL CONVICTION WHERE THE JURORS WERE EXPOSED
"THROUGH NEWS ACCOUNTS" TO INFORMATION THAT WAS NOT ADMITTED AT TRIAL. 
WE HELD THAT THE PREJUDICE FROM SUCH MATERIAL "MAY INDEED BE GREATER"
THAN WHEN IT IS PART OF THE PROSECUTION'S EVIDENCE "FOR IT IS THEN NOT
TEMPERED BY PROTECTIVE PROCEDURES."  AT 313.  AT THE SAME TIME, WE DID
NOT CONSIDER DISPOSITIVE THE STATEMENT OF EACH JUROR "THAT HE WOULD NOT
BE INFLUENCED BY THE NEWS ARTICLES, THAT HE COULD DECIDE THE CASE ONLY
ON THE EVIDENCE OF RECORD, AND THAT HE FELT NO PREJUDICE AGAINST
PETITIONER AS A RESULT OF THE ARTICLES."  AT 312.  LIKEWISE, IN IRVIN
V. DOWD, 366 U.S. 717 (1961), EVEN THOUGH EACH JUROR INDICATED THAT HE
COULD RENDER AN IMPARTIAL VERDICT DESPITE EXPOSURE TO PREJUDICIAL
NEWSPAPER ARTICLES, WE SET ASIDE THE CONVICTION HOLDING: 

"WITH HIS LIFE AT STAKE, IT IS NOT REQUIRING TOO MUCH THAT PETITIONER
BE TRIED IN AN ATMOSPHERE UNDISTURBED BY SO HUGE A WAVE OF PUBLIC
PASSION  ...  ."  AT 728. 

THE UNDEVIATING RULE OF THIS COURT WAS EXPRESSED BY MR. JUSTICE
HOLMES OVER HALF A CENTURY AGO IN PATTERSON V. COLORADO, 205 U.S. 454,
462 (1907): 

"THE THEORY OF OUR SYSTEM IS THAT THE CONCLUSIONS TO BE REACHED IN A
CASE WILL BE INDUCED ONLY BY EVIDENCE AND ARGUMENT IN OPEN COURT, AND
NOT BY ANY OUTSIDE INFLUENCE, WHETHER OF PRIVATE TALK OR PUBLIC
PRINT." 

MOREOVER, "THE BURDEN OF SHOWING ESSENTIAL UNFAIRNESS  ...  AS A
DEMONSTRABLE REALITY," ADAMS V. UNITED STATES EX REL. MCCANN, 317 U.S.
269, 281 (1942), NEED NOT BE UNDERTAKEN WHEN TELEVISION HAS EXPOSED THE
COMMUNITY "REPEATEDLY AND IN DEPTH TO THE SPECTACLE OF THE ACCUSED
PERSONALLY CONFESSING IN DETAIL TO THE CRIMES WITH WHICH HE WAS LATER
TO BE CHARGED."  RIDEAU V. LOUISIANA, 373 U.S. 723, 726 (1963).  IN
TURNER V. LOUISIANA, 379 U.S. 466 (1965), TWO KEY WITNESSES WERE DEPUTY
SHERIFFS WHO DOUBLED AS JURY SHEPHERDS DURING THE TRIAL.  THE DEPUTIES
SWORE THAT THEY HAD NOT TALKED TO THE JURORS ABOUT THE CASE, BUT THE
COURT NONETHELESS HELD THAT: 

"EVEN IF IT COULD BE ASSUMED THAT THE DEPUTIES NEVER DID DISCUSS THE
CASE DIRECTLY WITH ANY MEMBERS OF THE JURY, IT WOULD BE BLINKING
REALITY NOT TO RECOGNIZE THE EXTREME PREJUDICE INHERENT IN THIS
CONTINUAL ASSOCIATION  ...  ."  AT 473. 

ONLY LAST TERM IN ESTES V. TEXAS, 381 U.S. 532 (1965), WE SET ASIDE A
CONVICTION DESPITE THE ABSENCE OF ANY SHOWING OF PREJUDICE.  WE SAID
THERE: 

"IT IS TRUE THAT IN MOST CASES INVOLVING CLAIMS OF DUE PROCESS
DEPRIVATIONS WE REQUIRE A SHOWING OF IDENTIFIABLE PREJUDICE TO THE
ACCUSED.  NEVERTHELESS, AT TIMES A PROCEDURE EMPLOYED BY THE STATE
INVOLVES SUCH A PROBABILITY THAT PREJUDICE WILL RESULT THAT IT IS
DEEMED INHERENTLY LACKING IN DUE PROCESS."  AT 542-543. 

AND WE CITED WITH APPROVAL THE LANGUAGE OF MR. JUSTICE BLACK FOR THE
COURT IN IN RE MURCHISON, 349 U.S. 133, 136 (1955), THAT "OUR SYSTEM OF
LAW HAS ALWAYS ENDEAVORED TO PREVENT EVEN THE PROBABILITY OF
UNFAIRNESS." 

                                         V. 

IT IS CLEAR THAT THE TOTALITY OF CIRCUMSTANCES IN THIS CASE ALSO
WARRANTS SUCH AN APPROACH.  UNLIKE ESTES, SHEPPARD WAS NOT GRANTED A
CHANGE OF VENUE TO A LOCALE AWAY FROM WHERE THE PUBLICITY ORIGINATED;
NOR WAS HIS JURY SEQUESTERED.  THE ESTES JURY SAW NONE OF THE
TELEVISION BROADCASTS FROM THE COURTROOM.  ON THE CONTRARY, THE
SHEPPARD JURORS WERE SUBJECTED TO NEWSPAPER, RADIO AND TELEVISION
COVERAGE OF THE TRIAL WHILE NOT TAKING PART IN THE PROCEEDINGS.  THEY
WERE ALLOWED TO GO THEIR SEPARATE WAYS OUTSIDE OF THE COURTROOM,
WITHOUT ADEQUATE DIRECTIONS NOT TO READ OR LISTEN TO ANYTHING
CONCERNING THE CASE.  THE JUDGE'S "ADMONITIONS" AT THE BEGINNING OF THE
TRIAL ARE REPRESENTATIVE: 

"I WOULD SUGGEST TO YOU AND CAUTION YOU THAT YOU DO NOT READ ANY
NEWSPAPERS DURING THE PROGRESS OF THIS TRIAL, THAT YOU DO NOT LISTEN TO
RADIO COMMENTS NOR WATCH OR LISTEN TO TELEVISION COMMENTS, INSOFAR AS
THIS CASE IS CONCERNED.  YOU WILL FEEL VERY MUCH BETTER AS THE TRIAL
PROCEEDS  ...  .  I AM SURE THAT WE SHALL ALL FEEL VERY MUCH BETTER IF
WE DO NOT INDULGE IN ANY NEWSPAPER READING OR LISTENING TO ANY COMMENTS
WHATEVER ABOUT THE MATTER WHILE THE CASE IS IN PROGRESS.  AFTER IT IS
ALL OVER, YOU CAN READ IT ALL TO YOUR HEART'S CONTENT  ...  ." 

AT INTERVALS DURING THE TRIAL, THE JUDGE SIMPLY REPEATED HIS
"SUGGESTIONS" AND "REQUESTS" THAT THE JURORS NOT EXPOSE THEMSELVES TO
COMMENT UPON THE CASE.  MOREOVER, THE JURORS WERE THRUST INTO THE ROLE
OF CELEBRITIES BY THE JUDGE'S FAILURE TO INSULATE THEM FROM REPORTERS
AND PHOTOGRAPHERS.  SEE ESTES V. TEXAS, SUPRA, AT 545-546.  THE
NUMEROUS PICTURES OF THE JURORS, WITH THEIR ADDRESSES, WHICH APPEARED
IN THE NEWSPAPERS BEFORE AND DURING THE TRIAL ITSELF EXPOSED THEM TO
EXPRESSIONS OF OPINION FROM BOTH CRANKS AND FRIENDS.  THE FACT THAT
ANONYMOUS LETTERS HAD BEEN RECEIVED BY PROSPECTIVE JURORS SHOULD HAVE
MADE THE JUDGE AWARE THAT THIS PUBLICITY SERIOUSLY THREATENED THE
JURORS' PRIVACY. 

THE PRESS COVERAGE OF THE ESTES TRIAL WAS NOT NEARLY AS MASSIVE AND
PERVASIVE AS THE ATTENTION GIVEN BY THE CLEVELAND NEWSPAPERS AND
BROADCASTING STATIONS TO SHEPPARD'S PROSECUTION.  (FN8) SHEPPARD STOOD
INDICTED FOR THE MURDER OF HIS WIFE; THE STATE WAS DEMANDING THE DEATH
PENALTY.  FOR MONTHS THE VIRULENT PUBLICITY ABOUT SHEPPARD AND THE
MURDER HAD MADE THE CASE NOTORIOUS.  CHARGES AND COUNTERCHARGES WERE
AIRED IN THE NEWS MEDIA BESIDES THOSE FOR WHICH SHEPPARD WAS CALLED TO
TRIAL.  IN ADDITION, ONLY THREE MONTHS BEFORE TRIAL, SHEPPARD WAS
EXAMINED FOR MORE THAN FIVE HOURS WITHOUT COUNSEL DURING A THREE-DAY
INQUEST WHICH ENDED IN A PUBLIC BRAWL.  THE INQUEST WAS TELEVISED LIVE
FROM A HIGH SCHOOL GYMNASIUM SEATING HUNDREDS OF PEOPLE.  FURTHERMORE,
THE TRIAL BEGAN TWO WEEKS BEFORE A HOTLY CONTESTED ELECTION AT WHICH
BOTH CHIEF PROSECUTOR MAHON AND JUDGE BLYTHIN WERE CANDIDATES FOR
JUDGESHIPS.  (FN9) 

WHILE WE CANNOT SAY THAT SHEPPARD WAS DENIED DUE PROCESS BY THE
JUDGE'S REFUSAL TO TAKE PRECAUTIONS AGAINST THE INFLUENCE OF PRETRIAL
PUBLICITY ALONE, THE COURT'S LATER RULINGS MUST BE CONSIDERED AGAINST
THE SETTING IN WHICH THE TRIAL WAS HELD.  IN LIGHT OF THIS BACKGROUND,
WE BELIEVE THAT THE ARRANGEMENTS MADE BY THE JUDGE WITH THE NEWS MEDIA
CAUSED SHEPPARD TO BE DEPRIVED OF THAT "JUDICIAL SERENITY AND CALM TO
WHICH HE WAS ENTITLED."  ESTES V. TEXAS, SUPRA, AT 536.  THE FACT IS
THAT BEDLAM REIGNED AT THE COURTHOUSE DURING THE TRIAL AND NEWSMEN TOOK
OVER PRACTICALLY THE ENTIRE COURTROOM, HOUNDING MOST OF THE
PARTICIPANTS IN THE TRIAL, ESPECIALLY SHEPPARD.  AT A TEMPORARY TABLE
WITHIN A FEW FEET OF THE JURY BOX AND COUNSEL TABLE SAT SOME 20
REPORTERS STARING AT SHEPPARD AND TAKING NOTES.  THE ERECTION OF A
PRESS TABLE FOR REPORTERS INSIDE THE BAR IS UNPRECEDENTED.  THE BAR OF
THE COURT IS RESERVED FOR COUNSEL, PROVIDING THEM A SAFE PLACE IN WHICH
TO KEEP PAPERS AND EXHIBITS, AND TO CONFER PRIVATELY WITH CLIENT AND CO
COUNSEL.  IT IS DESIGNED TO PROTECT THE WITNESS AND THE JURY FROM ANY
DISTRACTIONS, INTRUSIONS OR INFLUENCES, AND TO PERMIT BENCH DISCUSSIONS
OF THE JUDGE'S RULINGS AWAY FROM THE HEARING OF THE PUBLIC AND THE
JURY.  HAVING ASSIGNED ALMOST ALL OF THE AVAILABLE SEATS IN THE
COURTROOM TO THE NEWS MEDIA THE JUDGE LOST HIS ABILITY TO SUPERVISE
THAT ENVIRONMENT.  THE MOVEMENT OF THE REPORTERS IN AND OUT OF THE
COURTROOM CAUSED FREQUENT CONFUSION AND DISRUPTION OF THE TRIAL.  AND
THE RECORD REVEALS CONSTANT COMMOTION WITHIN THE BAR.  MOREOVER, THE
JUDGE GAVE THE THRONG OF NEWSMEN GATHERED IN THE CORRIDORS OF THE
COURTHOUSE ABSOLUTE FREE REIN.  PARTICIPANTS IN THE TRIAL, INCLUDING
THE JURY, WERE FORCED TO RUN A GANTLET OF REPORTERS AND PHOTOGRAPHERS
EACH TIME THEY ENTERED OR LEFT THE COURTROOM.  THE TOTAL LACK OF
CONSIDERATION FOR THE PRIVACY OF THE JURY WAS DEMONSTRATED BY THE
ASSIGNMENT TO A BROADCASTING STATION OF SPACE NEXT TO THE JURY ROOM ON
THE FLOOR ABOVE THE COURTROOM, AS WELL AS THE FACT THAT JURORS WERE
ALLOWED TO MAKE TELEPHONE CALLS DURING THEIR FIVE-DAY DELIBERATION. 

                                            VI. 

THERE CAN BE NO QUESTION ABOUT THE NATURE OF THE PUBLICITY WHICH
SURROUNDED SHEPPARD'S TRIAL.  WE AGREE, AS DID THE COURT OF APPEALS,
WITH THE FINDINGS IN JUDGE BELL'S OPINION FOR THE OHIO SUPREME COURT: 

"MURDER AND MYSTERY, SOCIETY, SEX AND SUSPENSE WERE COMBINED IN THIS
CASE IN SUCH A MANNER AS TO INTRIGUE AND CAPTIVATE THE PUBLIC FANCY TO
A DEGREE PERHAPS UNPARALLELED IN RECENT ANNALS.  THROUGHOUT THE
PREINDICTMENT INVESTIGATION, THE SUBSEQUENT LEGAL SKIRMISHES AND THE
NINE-WEEK TRIAL, CIRCULATION-CONSCIOUS EDITORS CATERED TO THE
INSATIABLE INTEREST OF THE AMERICAN PUBLIC IN THE BIZARRE  ...  .  IN
THIS ATMOSPHERE OF A 'ROMAN HOLIDAY' FOR THE NEWS MEDIA, SAM SHEPPARD
STOOD TRIAL FOR HIS LIFE."  165 OHIO ST., AT 294, 135 N.E.2D, AT 342. 

INDEED, EVERY COURT THAT HAS CONSIDERED THIS CASE, SAVE THE COURT
THAT TRIED IT, HAS DEPLORED THE MANNER IN WHICH THE NEWS MEDIA INFLAMED
AND PREJUDICED THE PUBLIC.  (FN10) 

MUCH OF THE MATERIAL PRINTED OR BROADCAST DURING THE TRIAL WAS NEVER
HEARD FROM THE WITNESS STAND, SUCH AS THE CHARGES THAT SHEPPARD HAD
PURPOSELY IMPEDED THE MURDER INVESTIGATION AND MUST BE GUILTY SINCE HE
HAD HIRED A PROMINENT CRIMINAL LAWYER; THAT SHEPPARD WAS A PERJURER;
THAT HE HAD SEXUAL RELATIONS WITH NUMEROUS WOMEN; THAT HIS SLAIN WIFE
HAD CHARACTERIZED HIM AS A "JEKYLL-HYDE"; THAT HE WAS "A BARE-FACED
LIAR" BECAUSE OF HIS TESTIMONY AS TO POLICE TREATMENT; AND, FINALLY,
THAT A WOMAN CONVICT CLAIMED SHEPPARD TO BE THE FATHER OF HER
ILLEGITIMATE CHILD.  AS THE TRIAL PROGRESSED, THE NEWSPAPERS SUMMARIZED
AND INTERPRETED THE EVIDENCE, DEVOTING PARTICULAR ATTENTION TO THE
MATERIAL THAT INCRIMINATED SHEPPARD, AND OFTEN DREW UNWARRANTED
INFERENCES FROM TESTIMONY.  AT ONE POINT, A FRONT-PAGE PICTURE OF MRS.
SHEPPARD'S BLOOD-STAINED PILLOW WAS PUBLISHED AFTER BEING "DOCTORED" TO
SHOW MORE CLEARLY AN ALLEGED IMPRINT OF A SURGICAL INSTRUMENT. 

NOR IS THERE DOUBT THAT THIS DELUGE OF PUBLICITY REACHED AT LEAST SOME
OF THE JURY.  ON THE ONLY OCCASION THAT THE JURY WAS QUERIED, TWO
JURORS ADMITTED IN OPEN COURT TO HEARING THE HIGHLY INFLAMMATORY CHARGE
THAT A PRISON INMATE CLAIMED SHEPPARD AS THE FATHER OF HER ILLEGITIMATE
CHILD.  DESPITE THE EXTENT AND NATURE OF THE PUBLICITY TO WHICH THE
JURY WAS EXPOSED DURING TRIAL, THE JUDGE REFUSED DEFENSE COUNSEL'S
OTHER REQUESTS THAT THE JURORS BE ASKED WHETHER THEY HAD READ OR HEARD
SPECIFIC PREJUDICIAL COMMENT ABOUT THE CASE, INCLUDING THE INCIDENTS WE
HAVE PREVIOUSLY SUMMARIZED.  IN THESE CIRCUMSTANCES, WE CAN ASSUME THAT
SOME OF THIS MATERIAL REACHED MEMBERS OF THE JURY.  SEE COMMONWEALTH V.
CREHAN, 345 MASS. 609, 188 N.E.2D 923 (1963). 

                                       VII. 

THE COURT'S FUNDAMENTAL ERROR IS COMPOUNDED BY THE HOLDING THAT IT
LACKED POWER TO CONTROL THE PUBLICITY ABOUT THE TRIAL.  FROM THE VERY
INCEPTION OF THE PROCEEDINGS THE JUDGE ANNOUNCED THAT NEITHER HE NOR
ANYONE ELSE COULD RESTRICT PREJUDICIAL NEWS ACCOUNTS.  AND HE
REITERATED THIS VIEW ON NUMEROUS OCCASIONS.  SINCE HE VIEWED THE NEWS
MEDIA AS HIS TARGET, THE JUDGE NEVER CONSIDERED OTHER MEANS THAT ARE
OFTEN UTILIZED TO REDUCE THE APPEARANCE OF PREJUDICIAL MATERIAL AND TO
PROTECT THE JURY FROM OUTSIDE INFLUENCE.  WE CONCLUDE THAT THESE
PROCEDURES WOULD HAVE BEEN SUFFICIENT TO GUARANTEE SHEPPARD A FAIR
TRIAL AND SO DO NOT CONSIDER WHAT SANCTIONS MIGHT BE AVAILABLE AGAINST
A RECALCITRANT PRESS NOR THE CHARGES OF BIAS NOW MADE AGAINST THE STATE
TRIAL JUDGE.  (FN11) 

THE CARNIVAL ATMOSPHERE AT TRIAL COULD EASILY HAVE BEEN AVOIDED SINCE
THE COURTROOM AND COURTHOUSE PREMISES ARE SUBJECT TO THE CONTROL OF THE
COURT.  AS WE STRESSED IN ESTES, THE PRESENCE OF THE PRESS AT JUDICIAL
PROCEEDINGS MUST BE LIMITED WHEN IT IS APPARENT THAT THE ACCUSED MIGHT
OTHERWISE BE PREJUDICED OR DISADVANTAGED.  (FN12)  BEARING IN MIND THE
MASSIVE PRETRIAL PUBLICITY, THE JUDGE SHOULD HAVE ADOPTED STRICTER
RULES GOVERNING THE USE OF THE COURTROOM BY NEWSMEN, AS SHEPPARD'S
COUNSEL REQUESTED.  THE NUMBER OF REPORTERS IN THE COURTROOM ITSELF
COULD HAVE BEEN LIMITED AT THE FIRST SIGN THAT THEIR PRESENCE WOULD
DISRUPT THE TRIAL.  THEY CERTAINLY SHOULD NOT HAVE BEEN PLACED INSIDE
THE BAR.  FURTHERMORE, THE JUDGE SHOULD HAVE MORE CLOSELY REGULATED THE
CONDUCT OF NEWSMEN IN THE COURTROOM.  FOR INSTANCE, THE JUDGE BELATEDLY
ASKED THEM NOT TO HANDLE AND PHOTOGRAPH TRIAL EXHIBITS LYING ON THE
COUNSEL TABLE DURING RECESSES.    SECONDLY, THE COURT SHOULD HAVE
INSULATED THE WITNESSES.  ALL OF THE NEWSPAPERS AND RADIO STATIONS
APPARENTLY INTERVIEWED PROSPECTIVE WITNESSES AT WILL, AND IN MANY
INSTANCES DISCLOSED THEIR TESTIMONY.  A TYPICAL EXAMPLE WAS THE
PUBLICATION OF NUMEROUS STATEMENTS BY SUSAN HAYES, BEFORE HER
APPEARANCE IN COURT, REGARDING HER LOVE AFFAIR WITH SHEPPARD.  ALTHOUGH
THE WITNESSES WERE BARRED FROM THE COURTROOM DURING THE TRIAL THE FULL
VERBATIM TESTIMONY WAS AVAILABLE TO THEM IN THE PRESS.  THIS COMPLETELY
NULLIFIED THE JUDGE'S IMPOSITION OF THE RULE.  SEE ESTES V. TEXAS,
SUPRA, AT 547. 

THIRDLY, THE COURT SHOULD HAVE MADE SOME EFFORT TO CONTROL THE
RELEASE OF LEADS, INFORMATION, AND GOSSIP TO THE PRESS BY POLICE
OFFICERS, WITNESSES, AND THE COUNSEL FOR BOTH SIDES.  MUCH OF THE
INFORMATION THUS DISCLOSED WAS INACCURATE, LEADING TO GROUNDLESS RUMORS
AND CONFUSION.  (FN13)  THAT THE JUDGE WAS AWARE OF HIS RESPONSIBILITY
IN THIS RESPECT MAY BE SEEN FROM HIS WARNING TO STEVE SHEPPARD, THE
ACCUSED'S BROTHER, WHO HAD APPARENTLY MADE PUBLIC STATEMENTS IN AN
ATTEMPT TO DISCREDIT TESTIMONY FOR THE PROSECUTION.  THE JUDGE MADE
THIS STATEMENT IN THE PRESENCE OF THE JURY:

"NOW, THE COURT WANTS TO SAY A WORD.  THAT HE WAS TOLD - HE HAS NOT
READ ANYTHING ABOUT IT AT ALL - BUT HE WAS INFORMED THAT DR. STEVE
SHEPPARD, WHO HAS BEEN GRANTED THE PRIVILEGE OF REMAINING IN THE COURT
ROOM DURING THE TRIAL, HAS BEEN TRYING THE CASE IN THE NEWSPAPERS AND
MAKING RATHER UNCOMPLIMENTARY COMMENTS ABOUT THE TESTIMONY OF THE
WITNESSES FOR THE STATE. 

"LET IT BE NOW UNDERSTOOD THAT IF DR. STEVE SHEPPARD WISHES TO USE
THE NEWSPAPERS TO TRY HIS CASE WHILE WE ARE TRYING IT HERE, HE WILL BE
BARRED FROM REMAINING IN THE COURT ROOM DURING THE PROGRESS OF THE
TRIAL IF HE IS TO BE A WITNESS IN THE CASE. 

"THE COURT APPRECIATES HE CANNOT DENY STEVE SHEPPARD THE RIGHT OF
FREE SPEECH, BUT HE CAN DENY HIM THE  ...  PRIVILEGE OF BEING IN THE
COURT ROOM, IF HE WANTS TO AVAIL HIMSELF OF THAT METHOD DURING THE
PROGRESS OF THE TRIAL." 

DEFENSE COUNSEL IMMEDIATELY BROUGHT TO THE COURT'S ATTENTION THE
TREMENDOUS AMOUNT OF PUBLICITY IN THE CLEVELAND PRESS THAT
"MISREPRESENTED ENTIRELY THE TESTIMONY" IN THE CASE.  UNDER SUCH
CIRCUMSTANCES, THE JUDGE SHOULD HAVE AT LEAST WARNED THE NEWSPAPERS TO
CHECK THE ACCURACY OF THEIR ACCOUNTS.  AND IT IS OBVIOUS THAT THE JUDGE
SHOULD HAVE FURTHER SOUGHT TO ALLEVIATE THIS PROBLEM BY IMPOSING
CONTROL OVER THE STATEMENTS MADE TO THE NEWS MEDIA BY COUNSEL,
WITNESSES, AND ESPECIALLY THE CORONER AND POLICE OFFICERS.  THE
PROSECUTION REPEATEDLY MADE EVIDENCE AVAILABLE TO THE NEWS MEDIA WHICH
WAS NEVER OFFERED IN THE TRIAL.  MUCH OF THE "EVIDENCE" DISSEMINATED IN
THIS FASHION WAS CLEARLY INADMISSIBLE.  THE EXCLUSION OF SUCH EVIDENCE
IN COURT IS RENDERED MEANINGLESS WHEN NEWS MEDIA MAKE IT AVAILABLE TO
THE PUBLIC.  FOR EXAMPLE, THE PUBLICITY ABOUT SHEPPARD'S REFUSAL TO
TAKE A LIE DETECTOR TEST CAME DIRECTLY FROM POLICE OFFICERS AND THE
CORONER.  (FN14)  THE STORY THAT SHEPPARD HAD BEEN CALLED A "JEKYLL
HYDE" PERSONALITY BY HIS WIFE WAS ATTRIBUTED TO A PROSECUTION WITNESS. 
NO SUCH TESTIMONY WAS GIVEN.  THE FURTHER REPORT THAT THERE WAS "A
BOMBSHELL WITNESS' ON TAP" WHO WOULD TESTIFY AS TO SHEPPARD'S "FIERY
TEMPER" COULD ONLY HAVE EMANATED FROM THE PROSECUTION.  MOREOVER, THE
NEWSPAPERS DESCRIBED IN DETAIL CLUES THAT HAD BEEN FOUND BY THE POLICE,
BUT NOT PUT INTO THE RECORD.  (FN15) 

THE FACT THAT MANY OF THE PREJUDICIAL NEWS ITEMS CAN BE TRACED TO THE
PROSECUTION, AS WELL AS THE DEFENSE, AGGRAVATES THE JUDGE'S FAILURE TO
TAKE ANY ACTION.  SEE STROBLE V. CALIFORNIA, 343 U.S. 181, 201
(1952)(FRANKFURTER, J., DISSENTING).  EFFECTIVE CONTROL OF THESE
SOURCES - CONCEDEDLY WITHIN THE COURT'S POWER - MIGHT WELL HAVE
PREVENTED THE DIVULGENCE OF INACCURATE INFORMATION, RUMORS, AND
ACCUSATIONS THAT MADE UP MUCH OF THE INFLAMMATORY PUBLICITY, AT LEAST
AFTER SHEPPARD'S INDICTMENT. 

MORE SPECIFICALLY, THE TRIAL COURT MIGHT WELL HAVE PROSCRIBED
EXTRAJUDICIAL STATEMENTS BY ANY LAWYER, PARTY, WITNESS, OR COURT
OFFICIAL WHICH DIVULGED PREJUDICIAL MATTERS, SUCH AS THE REFUSAL OF
SHEPPARD TO SUBMIT TO INTERROGATION OR TAKE ANY LIE DETECTOR TESTS; ANY
STATEMENT MADE BY SHEPPARD TO OFFICIALS; THE IDENTITY OF PROSPECTIVE
WITNESSES OR THEIR PROBABLE TESTIMONY; ANY BELIEF IN GUILT OR
INNOCENCE; OR LIKE STATEMENTS CONCERNING THE MERITS OF THE CASE.  SEE
STATE V. VAN DUYNE, 43 N.J. 369, 389, 204 A.2D 841, 852 (1964), IN
WHICH THE COURT INTERPRETED CANON 20 OF THE AMERICAN BAR ASSOCIATION'S
CANONS OF PROFESSIONAL ETHICS TO PROHIBIT SUCH STATEMENTS.  BEING
ADVISED OF THE GREAT PUBLIC INTEREST IN THE CASE, THE MASS COVERAGE OF
THE PRESS, AND THE POTENTIAL PREJUDICIAL IMPACT OF PUBLICITY, THE COURT
COULD ALSO HAVE REQUESTED THE APPROPRIATE CITY AND COUNTY OFFICIALS TO
PROMULGATE A REGULATION WITH RESPECT TO DISSEMINATION OF INFORMATION
ABOUT THE CASE BY THEIR EMPLOYEES.  (FN16)  IN ADDITION, REPORTERS WHO
WROTE OR BROADCAST PREJUDICIAL STORIES, COULD HAVE BEEN WARNED AS TO
THE IMPROPRIETY OF PUBLISHING MATERIAL NOT INTRODUCED IN THE
PROCEEDINGS.  THE JUDGE WAS PUT ON NOTICE OF SUCH EVENTS BY DEFENSE
COUNSEL'S COMPLAINT ABOUT THE WHK BROADCAST ON THE SECOND DAY OF
TRIAL.  SEE P. 346, SUPRA.  IN THIS MANNER, SHEPPARD'S RIGHT TO A TRIAL
FREE FROM OUTSIDE INTERFERENCE WOULD HAVE BEEN GIVEN ADDED PROTECTION
WITHOUT CORRESPONDING CURTAILMENT OF THE NEWS MEDIA.  HAD THE JUDGE,
THE OTHER OFFICERS OF THE COURT, AND THE POLICE PLACED THE INTEREST OF
JUSTICE FIRST, THE NEWS MEDIA WOULD HAVE SOON LEARNED TO BE CONTENT
WITH THE TASK OF REPORTING THE CASE AS IT UNFOLDED IN THE COURTROOM -
NOT PIECED TOGETHER FROM EXTRAJUDICIAL STATEMENTS. 

FROM THE CASES COMING HERE WE NOTE THAT UNFAIR AND PREJUDICIAL NEWS
COMMENT ON PENDING TRIALS HAS BECOME INCREASINGLY PREVALENT.  DUE
PROCESS REQUIRES THAT THE ACCUSED RECEIVE A TRIAL BY AN IMPARTIAL JURY
FREE FROM OUTSIDE INFLUENCES.  GIVEN THE PERVASIVENESS OF MODERN
COMMUNICATIONS AND THE DIFFICULTY OF EFFACING PREJUDICIAL PUBLICITY
FROM THE MINDS OF THE JURORS, THE TRIAL COURTS MUST TAKE STRONG
MEASURES TO ENSURE THAT THE BALANCE IS NEVER WEIGHED AGAINST THE
ACCUSED.  AND APPELLATE TRIBUNALS HAVE THE DUTY TO MAKE AN INDEPENDENT
EVALUATION OF THE CIRCUMSTANCES.  OF COURSE, THERE IS NOTHING THAT
PROSCRIBES THE PRESS FROM REPORTING EVENTS THAT TRANSPIRE IN THE
COURTROOM.  BUT WHERE THERE IS A REASONABLE LIKELIHOOD THAT PREJUDICIAL
NEWS PRIOR TO TRIAL WILL PREVENT A FAIR TRIAL, THE JUDGE SHOULD
CONTINUE THE CASE UNTIL THE THREAT ABATES, OR TRANSFER IT TO ANOTHER
COUNTY NOT SO PERMEATED WITH PUBLICITY.  IN ADDITION, SEQUESTRATION OF
THE JURY WAS SOMETHING THE JUDGE SHOULD HAVE RAISED SUA SPONTE WITH
COUNSEL.  IF PUBLICITY DURING THE PROCEEDINGS THREATENS THE FAIRNESS OF
THE TRIAL, A NEW TRIAL SHOULD BE ORDERED.  BUT WE MUST REMEMBER THAT
REVERSALS ARE BUT PALLIATIVES; THE CURE LIES IN THOSE REMEDIAL MEASURES
THAT WILL PREVENT THE PREJUDICE AT ITS INCEPTION.  THE COURTS MUST TAKE
SUCH STEPS BY RULE AND REGULATION THAT WILL PROTECT THEIR PROCESSES
FROM PREJUDICIAL OUTSIDE INTERFERENCES.  NEITHER PROSECUTORS, COUNSEL
FOR DEFENSE, THE ACCUSED, WITNESSES, COURT STAFF NOR ENFORCEMENT
OFFICERS COMING UNDER THE JURISDICTION OF THE COURT SHOULD BE PERMITTED
TO FRUSTRATE ITS FUNCTION.  COLLABORATION BETWEEN COUNSEL AND THE PRESS
AS TO INFORMATION AFFECTING THE FAIRNESS OF A CRIMINAL TRIAL IS NOT
ONLY SUBJECT TO REGULATION, BUT IS HIGHLY CENSURABLE AND WORTHY OF
DISCIPLINARY MEASURES. 

SINCE THE STATE TRIAL JUDGE DID NOT FULFILL HIS DUTY TO PROTECT
SHEPPARD FROM THE INHERENTLY PREJUDICIAL PUBLICITY WHICH SATURATED THE
COMMUNITY AND TO CONTROL DISRUPTIVE INFLUENCES IN THE COURTROOM, WE
MUST REVERSE THE DENIAL OF THE HABEAS PETITION.  THE CASE IS REMANDED
TO THE DISTRICT COURT WITH INSTRUCTIONS TO ISSUE THE WRIT AND ORDER
THAT SHEPPARD BE RELEASED FROM CUSTODY UNLESS THE STATE PUTS HIM TO ITS
CHARGES AGAIN WITHIN A REASONABLE TIME.  IT IS SO ORDERED. 

FN1  SHEPPARD WAS CONVICTED IN 1954 IN THE COURT OF COMMON PLEAS OF
CUYAHOGA COUNTY, OHIO.  HIS CONVICTION WAS AFFIRMED BY THE COURT OF
APPEALS FOR CUYAHOGA COUNTY, 100 OHIO APP. 345, 128 N.E.2D 471 (1955),
AND THE OHIO SUPREME COURT, 165 OHIO ST. 293, 135 N.E.2D 340 (1956). 
WE DENIED CERTIORARI ON THE ORIGINAL APPLICATION FOR REVIEW.  352 U.S.
910 (1956). 

FN2  THE SEVERAL WITNESSES TO WHOM SHEPPARD NARRATED HIS EXPERIENCES
DIFFER IN THEIR DESCRIPTION OF VARIOUS DETAILS.  SHEPPARD CLAIMED THE
VAGUENESS OF HIS PERCEPTION WAS CAUSED BY HIS SUDDEN AWAKENING, THE
DIMNESS OF THE LIGHT, AND HIS LOSS OF CONSCIOUSNESS. 

FN3  SHEPPARD WAS SUFFERING FROM SEVERE PAIN IN HIS NECK, A SWOLLEN
EYE, AND SHOCK. 

FN4  BUT NEWSPAPER PHOTOGRAPHERS AND REPORTERS WERE PERMITTED ACCESS
TO SHEPPARD'S HOME FROM TIME TO TIME AND TOOK PICTURES THROUGHOUT THE
PREMISES. 

FN5  AT THE SAME TIME, THE NEWSPAPERS REPORTED THAT OTHER POSSIBLE
SUSPECTS HAD BEEN "CLEARED" BY LIE DETECTOR TESTS.  ONE OF THESE
PERSONS WAS QUOTED AS SAYING THAT HE COULD NOT UNDERSTAND WHY AN
INNOCENT MAN WOULD REFUSE TO TAKE SUCH A TEST. 

FN6  THE NEWSPAPERS HAD HEAVILY EMPHASIZED SHEPPARD'S ILLICIT AFFAIR
WITH SUSAN HAYES, AND THE FACT THAT HE HAD INITIALLY LIED ABOUT IT. 

FN7  A NUMBER OF ARTICLES CALCULATED TO EVOKE SYMPATHY FOR SHEPPARD
WERE PRINTED, SUCH AS THE LETTERS SHEPPARD WROTE TO HIS SON WHILE IN
JAIL.  THESE STORIES OFTEN APPEARED TOGETHER WITH NEWS COVERAGE WHICH
WAS UNFAVORABLE TO HIM. 

FN8  MANY MORE REPORTERS AND PHOTOGRAPHERS ATTENDED THE SHEPPARD
TRIAL.  AND IT ATTRACTED SEVERAL NATIONALLY FAMOUS COMMENTATORS AS
WELL. 

FN9  AT THE COMMENCEMENT OF TRIAL, DEFENSE COUNSEL MADE MOTIONS FOR
CONTINUANCE AND CHANGE OF VENUE.  THE JUDGE POSTPONED RULING ON THESE
MOTIONS UNTIL HE DETERMINED WHETHER AN IMPARTIAL JURY COULD BE
IMPANELED.  VOIR DIRE EXAMINATION SHOWED THAT WITH ONE EXCEPTION ALL
MEMBERS SELECTED FOR JURY SERVICE HAD READ SOMETHING ABOUT THE CASE IN
THE NEWSPAPERS.  SINCE, HOWEVER, ALL OF THE JURORS STATED THAT THEY
WOULD NOT BE INFLUENCED BY WHAT THEY HAD READ OR SEEN, THE JUDGE
OVERRULED BOTH OF THE MOTIONS.  WITHOUT REGARD TO WHETHER THE JUDGE'S
ACTIONS IN THIS RESPECT REACH DIMENSIONS THAT WOULD JUSTIFY ISSUANCE OF
THE HABEAS WRIT, IT SHOULD BE NOTED THAT A SHORT CONTINUANCE WOULD HAVE
ALLEVIATED ANY PROBLEM WITH REGARD TO THE JUDICIAL ELECTIONS.  THE
COURT IN DELANEY V. UNITED STATES, 199 F.2D 107, 115 (C.A. 1ST CIR.
1952), RECOGNIZED SUCH A DUTY UNDER SIMILAR CIRCUMSTANCES, HOLDING THAT
"IF ASSURANCE OF A FAIR TRIAL WOULD NECESSITATE THAT THE TRIAL OF THE
CASE BE POSTPONED UNTIL AFTER THE ELECTION, THEN WE THINK THE LAW
REQUIRED NO LESS THAN THAT." 

FN10  TYPICAL COMMENTS ON THE TRIAL BY THE PRESS ITSELF INCLUDE: 

"THE QUESTION OF DR. SHEPPARD'S GUILT OR INNOCENCE STILL IS BEFORE
THE COURTS.  THOSE WHO HAVE EXAMINED THE TRIAL RECORD CAREFULLY ARE
DIVIDED AS TO THE PROPRIETY OF THE VERDICT.  BUT ALMOST EVERYONE WHO
WATCHED THE PERFORMANCE OF THE CLEVELAND PRESS AGREES THAT A FAIR
HEARING FOR THE DEFENDANT, IN THAT AREA, WOULD BE A MODERN MIRACLE." 
HARRISON, "THE PRESS VS. THE COURTS," THE SATURDAY REVIEW (OCT. 15,
1955). 

"AT THIS DISTANCE, SOME 100 MILES FROM CLEVELAND, IT LOOKS TO US AS
THOUGH THE SHEPPARD MURDER CASE WAS SENSATIONALIZED TO THE POINT AT
WHICH THE PRESS MUST ASK ITSELF IF ITS FREEDOM, CARRIED TO EXCESS,
DOESN'T INTERFERE WITH THE CONDUCT OF FAIR TRIALS."  EDITORIAL, THE
TOLEDO BLADE (DEC. 22, 1954.) 

FN11  IN AN UNSWORN STATEMENT, WHICH THE PARTIES AGREED WOULD HAVE
THE STATUS OF A DEPOSITION, MADE 10 YEARS AFTER SHEPPARD'S CONVICTION
AND SIX YEARS AFTER JUDGE BLYTHIN'S DEATH, DOROTHY KILGALLEN ASSERTED
THAT JUDGE BLYTHIN HAD TOLD HER:  "IT'S AN OPEN AND SHUT CASE  ...  HE
IS GUILTY AS HELL."  IT IS THUS URGED THAT SHEPPARD BE RELEASED ON THE
GROUND THAT THE JUDGE'S BIAS INFECTED THE ENTIRE TRIAL.  BUT WE NEED
NOT REACH THIS ARGUMENT, SINCE THE JUDGE'S FAILURE TO INSULATE THE
PROCEEDINGS FROM PREJUDICIAL PUBLICITY AND DISRUPTIVE INFLUENCES
DEPRIVED SHEPPARD OF THE CHANCE TO RECEIVE A FAIR HEARING. 

FN12  THE JUDGE'S AWARENESS OF HIS POWER IN THIS RESPECT IS MANIFEST
FROM HIS ASSIGNMENT OF SEATS TO THE PRESS. 

FN13  THE PROBLEM HERE WAS FURTHER COMPLICATED BY THE INDEPENDENT
ACTION OF THE NEWSPAPERS IN REPORTING "EVIDENCE" AND GOSSIP WHICH THEY
UNCOVERED.  THE PRESS NOT ONLY INFERRED THAT SHEPPARD WAS GUILTY
BECAUSE HE "STALLED" THE INVESTIGATION, HID BEHIND HIS FAMILY, AND
HIRED A PROMINENT CRIMINAL LAWYER, BUT DENOUNCED AS "MASS JURY
TAMPERING" HIS EFFORTS TO GATHER EVIDENCE OF COMMUNITY PREJUDICE CAUSED
BY SUCH PUBLICATIONS.  SHEPPARD'S COUNTERATTACKS ADDED SOME FUEL BUT,
IN THESE CIRCUMSTANCES, CANNOT PRECLUDE HIM FROM ASSERTING HIS RIGHT TO
A FAIR TRIAL.  PUTTING TO ONE SIDE NEWS STORIES ATTRIBUTED TO POLICE
OFFICIALS, PROSPECTIVE WITNESSES, THE SHEPPARDS, AND THE LAWYERS, IT IS
POSSIBLE THAT THE OTHER PUBLICITY "WOULD ITSELF HAVE HAD A PREJUDICIAL
EFFECT."  CF. REPORT OF THE PRESIDENT'S COMMISSION ON THE ASSASSINATION
OF PRESIDENT KENNEDY, AT 239. 

FN14  WHEN TWO POLICE OFFICERS TESTIFIED AT TRIAL THAT SHEPPARD
REFUSED TO TAKE A LIE DETECTOR TEST, THE JUDGE DECLINED TO GIVE A
REQUESTED INSTRUCTION THAT THE RESULTS OF SUCH A TEST WOULD BE
INADMISSIBLE IN ANY EVENT.  HE SIMPLY TOLD THE JURY THAT NO PERSON HAS
AN OBLIGATION "TO TAKE ANY LIE DETECTOR TEST." 

FN15  SUCH "PREMATURE DISCLOSURE AND WEIGHING OF THE EVIDENCE" MAY
SERIOUSLY JEOPARDIZE A DEFENDANT'S RIGHT TO AN IMPARTIAL JURY. 
"NEITHER THE PRESS NOR THE PUBLIC HAD A RIGHT TO BE CONTEMPORANEOUSLY
INFORMED BY THE POLICE OR PROSECUTING AUTHORITIES OF THE DETAILS OF THE
EVIDENCE BEING ACCUMULATED AGAINST SHEPPARD."  CF. REPORT OF THE
PRESIDENT'S COMMISSION, SUPRA, AT 239, 240.    FN16  THE DEPARTMENT OF
JUSTICE, THE CITY OF NEW YORK, AND OTHER GOVERNMENTAL AGENCIES HAVE
ISSUED SUCH REGULATIONS.  E.G., 28 CFR SEC 50.2 (1966).  FOR GENERAL
INFORMATION ON THIS TOPIC SEE PERIODIC PUBLICATIONS (E.G., NOS. 71,
124, AND 158) BY THE FREEDOM OF INFORMATION CENTER, SCHOOL OF
JOURNALISM, UNIVERSITY OF MISSOURI. 

MR. JUSTICE BLACK DISSENTS. 
..END :





SHILLITANI V. UNITED STATES 384 U.S. 364 


NO. 412.  ARGUED MARCH 2, 1966.  - DECIDED JUNE 6, 1966.* - 345 F.2D
290, 346 F.2D 5, VACATED AND REMANDED. 

*TOGETHER WITH NO. 442, PAPPADIO V. UNITED STATES, ALSO ON CERTIORARI
TO THE SAME COURT. 


PETITIONERS, HAVING REFUSED TO TESTIFY BEFORE A GRAND JURY UNDER
IMMUNITY GRANTED BY THE RESPECTIVE DISTRICT COURTS UNDER THE NARCOTIC
CONTROL ACT OF 1956, WERE FOUND GUILTY OF CONTEMPT IN PROCEEDINGS UNDER
FED. RULE CRIM. PROC. 42(B).  EACH WAS SENTENCED TO TWO YEARS'
IMPRISONMENT, WITH THE PROVISO THAT HE WOULD BE RELEASED SOONER IF AND
WHEN HE ANSWERED THE QUESTIONS.  THE COURT OF APPEALS, CONSTRUING THE
SENTENCES AS GIVING PETITIONERS AN UNQUALIFIED RIGHT TO RELEASE UPON
COMPLIANCE WITH THE ORDERS TO TESTIFY, REJECTED PETITIONERS'
CONSTITUTIONAL OBJECTIONS THAT THEY WERE NOT INDICTED OR GIVEN JURY
TRIALS.  HELD: 

1.  THE CHARACTER OF THESE ACTIONS AND THEIR PURPOSE TO OBTAIN ANSWERS
TO THE QUESTIONS FOR THE GRAND JURY RENDERED THEM CIVIL CONTEMPT
PROCEEDINGS, FOR WHICH INDICTMENT AND JURY TRIAL ARE NOT
CONSTITUTIONALLY REQUIRED.  PP. 368-370. 

2.  THOUGH COURTS HAVE INHERENT POWER THROUGH CIVIL CONTEMPT TO
ENFORCE COMPLIANCE WITH THEIR LAWFUL ORDERS, THE JUSTIFICATION FOR
COERCIVE IMPRISONMENT AS APPLIED TO SUCH CONTEMPT DEPENDS UPON THE
CONTEMNOR'S ABILITY TO COMPLY WITH THE COURT'S ORDER.  WHERE, AS IN
THESE CASES, THE GRAND JURY HAS BEEN FINALLY DISCHARGED, THE
CONTUMACIOUS WITNESS CANNOT LONGER BE CONFINED SINCE HE HAS NO FURTHER
OPPORTUNITY TO PURGE HIMSELF OF CONTEMPT. 

SHILLITANI V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE CONSOLIDATED CASES AGAIN PRESENT THE DIFFICULT QUESTION WHETHER
A CHARGE OF CONTEMPT AGAINST A WITNESS FOR REFUSAL TO ANSWER QUESTIONS
BEFORE A GRAND JURY REQUIRES AN INDICTMENT AND JURY TRIAL.   IN BOTH
CASES, CONTEMPT PROCEEDINGS WERE INSTITUTED AFTER PETITIONERS HAD
REFUSED TO TESTIFY UNDER IMMUNITY GRANTED BY THE RESPECTIVE DISTRICT
COURTS.  NEITHER PETITIONER WAS INDICTED OR GIVEN A JURY TRIAL.  BOTH
WERE FOUND GUILTY AND SENTENCED TO TWO YEARS' IMPRISONMENT, WITH THE
PROVISO THAT IF EITHER ANSWERED THE QUESTIONS BEFORE HIS SENTENCE
ENDED, HE WOULD BE RELEASED.  THE OPINION OF THE DISTRICT COURT IN
PAPPADIO IS REPORTED AT 235 F. SUPP. 887 (D.C.S.D.N.Y. 1964).  IN
SHILLITANI, THE DISTRICT COURT SIMPLY ENTERED AN ORDER, WHICH IS NOT
REPORTED.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED EACH
CONVICTION IN SEPARATE OPINIONS.  UNITED STATES V. PAPPADIO, 346 F.2D 5
(1965); UNITED STATES V. SHILLITANI, 345 F.2D 290 (1965).  WE GRANTED
CERTIORARI TO REVIEW THE VALIDITY OF THE SENTENCES IMPOSED IN BOTH
CASES.  382 U.S. 913, 916 (1965).  WE HOLD THAT THE CONDITIONAL NATURE
OF THESE SENTENCES RENDERS EACH OF THE ACTIONS A CIVIL CONTEMPT
PROCEEDING, FOR WHICH INDICTMENT AND JURY TRIAL ARE NOT
CONSTITUTIONALLY REQUIRED.  HOWEVER, SINCE THE TERM OF THE GRAND JURY
BEFORE WHICH PETITIONERS WERE CONTUMACIOUS HAS EXPIRED, THE JUDGMENTS
BELOW MUST BE VACATED AND THE CASES REMANDED FOR DISMISSAL. 

I. 

NO. 412, SHILLITANI V. UNITED STATES. 

SHILLITANI APPEARED UNDER SUBPOENA BEFORE A GRAND JURY INVESTIGATING
POSSIBLE VIOLATIONS OF THE FEDERAL NARCOTICS LAWS.  ON THREE OCCASIONS
HE REFUSED TO ANSWER QUESTIONS, INVOKING HIS PRIVILEGE AGAINST SELF
INCRIMINATION.  AT THE GOVERNMENT'S REQUEST, THE DISTRICT JUDGE THEN
GRANTED HIM IMMUNITY UNDER THE NARCOTIC CONTROL ACT OF 1956, 18 U.S.C.
SEC 1406 (1964 ED.), AND ORDERED HIM TO ANSWER CERTAIN QUESTIONS.  WHEN
CALLED BEFORE THE GRAND JURY AGAIN, SHILLITANI PERSISTED IN HIS
REFUSAL.  THEREAFTER, IN A PROCEEDING UNDER RULE 42(B) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE, (FN1) THE DISTRICT COURT FOUND HIM GUILTY
OF CRIMINAL CONTEMPT.  NO JURY TRIAL WAS REQUESTED.  SHILLITANI WAS
SENTENCED TO PRISON FOR TWO YEARS "OR UNTIL THE FURTHER ORDER OF THIS
COURT.  SHOULD ...  MR. SHILLITANI ANSWER THOSE QUESTIONS BEFORE THE
EXPIRATION OF SAID SENTENCE, OR THE DISCHARGE OF THE SAID GRAND JURY,
WHICHEVER MAY FIRST OCCUR, THE FURTHER ORDER OF THIS COURT MAY BE MADE
TERMINATING THE SENTENCE OF IMPRISONMENT."  THE COURT OF APPEALS
AFFIRMED, REJECTING SHILLITANI'S CONSTITUTIONAL OBJECTION TO THE
IMPOSITION OF A TWO-YEAR SENTENCE WITHOUT INDICTMENT OR TRIAL BY JURY
ON THE BASIS THAT "THE CONTEMPT PROCEEDINGS PRECEDED ANY COMPLIANCE"
AND THE "SENTENCE CONTAINED A PURGE CLAUSE."  IT FURTHER CONSTRUED THE
SENTENCE AS GIVING SHILLITANI AN UNQUALIFIED RIGHT TO BE RELEASED IF
AND WHEN HE OBEYED THE ORDER TO TESTIFY.  345 F.2D, AT 294. 

NO. 442, PAPPADIO V. UNITED STATES. 

PAPPADIO APPEARED UNDER SUBPOENA BEFORE THE SAME GRAND JURY.  HE ALSO
REFUSED THREE TIMES TO ANSWER NUMEROUS QUESTIONS ON THE GROUND THAT THE
ANSWERS WOULD INCRIMINATE HIM.  HE WAS THEN GRANTED IMMUNITY UNDER 18
U.S.C. SEC 1406 AND DIRECTED TO TESTIFY.  HE CONTINUED TO REFUSE TO
ANSWER ANY QUESTIONS EXCEPT THOSE OF IDENTIFICATION.  IN OPPOSITION TO
THE GRAND JURY'S SUBSEQUENT REQUEST THAT THE DISTRICT COURT REQUIRE
PAPPADIO TO COOPERATE, HIS ATTORNEY CLAIMED THAT HE SHOULD NOT BE
CALLED AS A WITNESS SO LONG AS A 1958 INDICTMENT CHARGING HIM WITH
CONSPIRACY TO VIOLATE THE NARCOTICS LAWS WAS PENDING.  THE DISTRICT
COURT HELD THAT PAPPADIO HAD COMPLETE IMMUNITY, INCLUDING ANY CRIMINAL
PROCEEDING THEN PENDING, AND ORDERED HIM TO ANSWER ALL QUESTIONS
PREVIOUSLY ASKED.  UPON RETURN TO THE GRAND JURY, PAPPADIO DID RESPOND
TO NUMEROUS QUESTIONS, BUT STILL REFUSED TO ANSWER FIVE QUESTIONS
PERTAINING TO HIS ALLEGED ASSOCIATION WITH A GROUP HEADED BY THOMAS
LUCCHESE WHICH ENGAGED IN NARCOTICS TRAFFIC AND OTHER ILLICIT
ACTIVITIES.  (FN2)  AN ORDER TO SHOW CAUSE WAS ISSUED, PAPPADIO'S
DEMAND FOR A JURY WAS DENIED, AND THE DISTRICT COURT FOUND HIM IN
CONTEMPT FOR WILLFUL DISOBEDIENCE OF ITS ORDER TO TESTIFY.  HE RECEIVED
A SENTENCE ALMOST IDENTICAL TO THAT GIVEN SHILLITANI, AND THE COURT OF
APPEALS AFFIRMED ON THE SAME GROUNDS.  (FN3)

                            II. 

WE BELIEVE THAT THE CHARACTER AND PURPOSE OF THESE ACTIONS CLEARLY
RENDER THEM CIVIL RATHER THAN CRIMINAL CONTEMPT PROCEEDINGS.  SEE
PENFIELD CO. V. SECURITIES & EXCHANGE COMM'N, 330 U.S. 585, 590
(1947).  AS THE DISTINCTION WAS PHRASED IN GOMPERS V. BUCKS STOVE &
RANGE CO., 221 U.S. 418 449 (1911), THE ACT OF DISOBEDIENCE CONSISTED
SOLELY "IN REFUSING TO DO WHAT HAD BEEN ORDERED," I.E., TO ANSWER THE
QUESTIONS, NOT "IN DOING WHAT HAD BEEN PROHIBITED."  AND THE JUDGMENTS
IMPOSED CONDITIONAL IMPRISONMENT FOR THE OBVIOUS PURPOSE OF COMPELLING
THE WITNESSES TO OBEY THE ORDERS TO TESTIFY.  WHEN THE PETITIONERS
CARRY "THE KEYS OF THEIR PRISON IN THEIR OWN POCKETS," IN RE NEVITT,
117 F. 448, 461 (C.A. 8TH CIR. 1902), THE ACTION "IS ESSENTIALLY A
CIVIL REMEDY DESIGNED FOR THE BENEFIT OF OTHER PARTIES AND HAS QUITE
PROPERLY BEEN EXERCISED FOR CENTURIES TO SECURE COMPLIANCE WITH
JUDICIAL DECREES."  GREEN V. UNITED STATES, 356 U.S. 165, 197
(1958)(BLACK, J., DISSENTING).  IN SHORT, IF THE PETITIONERS HAD CHOSEN
TO OBEY THE ORDER THEY WOULD NOT HAVE FACED JAIL.  THIS IS EVIDENT FROM
THE STATEMENT OF THE DISTRICT JUDGE AT THE TIME HE SENTENCED
SHILLITANI: 

"I WANT TO MAKE IT CLEAR THAT THE SENTENCE OF THE COURT IS NOT
INTENDED SO MUCH BY WAY OF PUNISHMENT AS IT IS INTENDED SOLELY TO
SECURE FOR THE GRAND JURY ANSWERS TO THE QUESTIONS THAT HAVE BEEN ASKED
OF YOU." 

THE COURT OF APPEALS ALSO INTERPRETED THE SENTENCE AS CONDITIONAL:
"WE CONSTRUE THE JUDGMENT IN THIS CASE  ...  TO MEAN THAT DEFENDANT HAS
AN UNQUALIFIED RIGHT TO BE RELEASED FROM PRISON ONCE HE OBEYS JUDGE
WYATT'S ORDER.  AS THUS CONSTRUED, THE SENTENCE WAS ENTIRELY PROPER." 
345 F.2D, AT 294.   WHILE ALL OF THE PARTIES BEFORE THIS COURT BRIEFED
THE ISSUES WITH REFERENCE TO CRIMINAL CONTEMPT, COUNSEL FOR PETITIONERS
AND THE GOVERNMENT CONCEDED AT ARGUMENT THAT THE CONTEMPT ORDERS WERE
REMEDIAL, AND, THEREFORE, MIGHT WELL BE DEEMED CIVIL IN NATURE RATHER
THAN CRIMINAL.  (FN4) 

THE FACT THAT BOTH THE DISTRICT COURT AND THE COURT OF APPEALS CALLED
PETITIONERS' CONDUCT "CRIMINAL CONTEMPT" DOES NOT DISTURB OUR
CONCLUSION.  COURTS OFTEN SPEAK IN TERMS OF CRIMINAL CONTEMPT AND
PUNISHMENT FOR REMEDIAL PURPOSES.  SEE, E.G., UNITED STATES V. ONAN,
190 F.2D 1 (C.A. 8TH CIR. 1951).  "IT IS NOT THE FACT OF PUNISHMENT BUT
RATHER ITS CHARACTER AND PURPOSE THAT OFTEN SERVE TO DISTINGUISH" CIVIL
FROM CRIMINAL CONTEMPT.  GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S.
418, 441 (1911).  DESPITE THE FACT THAT SHILLITANI AND PAPPADIO WERE
ORDERED IMPRISONED FOR A DEFINITE PERIOD, THEIR SENTENCES WERE CLEARLY
INTENDED TO OPERATE IN A PROSPECTIVE MANNER - TO COERCE, RATHER THAN
PUNISH.  AS SUCH, THEY RELATE TO CIVIL CONTEMPT.  WHILE ANY
IMPRISONMENT, OF COURSE, HAS PUNITIVE AND DETERRENT EFFECTS, IT MUST BE
VIEWED AS REMEDIAL IF THE COURT CONDITIONS RELEASE UPON THE CONTEMNOR'S
WILLINGNESS TO TESTIFY.  SEE NYE V. UNITED STATES, 313 U.S. 33, 42-43
(1941).  THE TEST MAY BE STATED AS:  WHAT DOES THE COURT PRIMARILY SEEK
TO ACCOMPLISH BY IMPOSING SENTENCE?  HERE THE PURPOSE WAS TO OBTAIN
ANSWERS TO THE QUESTIONS FOR THE GRAND JURY.  (FN5)

                                            III. 

THERE CAN BE NO QUESTION THAT COURTS HAVE INHERENT POWER TO ENFORCE
COMPLIANCE WITH THEIR LAWFUL ORDERS THROUGH CIVIL CONTEMPT.  UNITED
STATES V. UNITED MINE WORKERS, 330 U.S. 258, 330-332 (1947)(BLACK AND
DOUGLAS, JJ., CONCURRING IN PART AND DISSENTING IN PART); UNITED STATES
V. BARNETT, 376 U.S. 681, 753-754 (1964)(GOLDBERG, J., DISSENTING). 
AND IT IS ESSENTIAL THAT COURTS BE ABLE TO COMPEL THE APPEARANCE AND
TESTIMONY OF WITNESSES.  UNITED STATES V. BRYAN, 339 U.S. 323, 331
(1950).  A GRAND JURY SUBPOENA MUST COMMAND THE SAME RESPECT.  CF.
LEVINE V. UNITED STATES, 362 U.S. 610, 617 (1960).  WHERE CONTEMPT
CONSISTS OF A REFUSAL TO OBEY A COURT ORDER TO TESTIFY AT ANY STAGE IN
JUDICIAL PROCEEDINGS, THE WITNESS MAY BE CONFINED UNTIL COMPLIANCE. 
MCCRONE V. UNITED STATES, 307 U.S. 61 (1939); GIANCANA V. UNITED
STATES, 352 F.2D 921 (C.A. 7TH CIR.), CERT. DENIED, 382 U.S. 959
(1965).  (FN6)  THE CONDITIONAL NATURE OF THE IMPRISONMENT - BASED
ENTIRELY UPON THE CONTEMNOR'S CONTINUED DEFIANCE - JUSTIFIES HOLDING
CIVIL CONTEMPT PROCEEDINGS ABSENT THE SAFEGUARDS OF INDICTMENT AND
JURY, UPHAUS V. WYMAN, 364 U.S. 388, 403-404 (1960)(DOUGLAS, J.,
DISSENTING), PROVIDED THAT THE USUAL DUE PROCESS REQUIREMENTS ARE MET. 
(FN7) 

HOWEVER, THE JUSTIFICATION FOR COERCIVE IMPRISONMENT AS APPLIED TO
CIVIL CONTEMPT DEPENDS UPON THE ABILITY OF THE CONTEMNOR TO COMPLY WITH
THE COURT'S ORDER.  MAGGIO V. ZEITZ, 333 U.S. 56, 76 (1948).  WHERE THE
GRAND JURY HAS BEEN FINALLY DISCHARGED, A CONTUMACIOUS WITNESS CAN NO
LONGER BE CONFINED SINCE HE THEN HAS NO FURTHER OPPORTUNITY TO PURGE
HIMSELF OF CONTEMPT.  ACCORDINGLY, THE CONTEMPT ORDERS ENTERED AGAINST
SHILLITANI AND PAPPADIO WERE IMPROPER INSOFAR AS THEY IMPOSED SENTENCES
THAT EXTENDED BEYOND THE CESSATION OF THE GRAND JURY'S INQUIRY INTO
PETITIONERS' ACTIVITIES.  (FN8)  HAVING SOUGHT TO DEAL ONLY WITH CIVIL
CONTEMPT, THE DISTRICT COURTS LACKED AUTHORITY TO IMPRISON PETITIONERS
FOR A PERIOD LONGER THAN THE TERM OF THE GRAND JURY.  THIS LIMITATION
ACCORDS WITH THE DOCTRINE THAT A COURT MUST EXERCISE "THE LEAST
POSSIBLE POWER ADEQUATE TO THE END PROPOSED."  ANDERSON V. DUNN, 6
WHEAT.  204, 231 (1821); IN RE MICHAEL, 326 U.S. 224, 227 (1945). 
(FN9)  THE OBJECTION THAT THE LENGTH OF IMPRISONMENT THUS DEPENDS UPON
FORTUITOUS CIRCUMSTANCES, SUCH AS THE LIFE OF THE GRAND JURY AND WHEN A
WITNESS APPEARS, HAS NO RELEVANCE TO THE PRESENT SITUATION.  THAT
ARGUMENT WOULD APPLY ONLY TO UNCONDITIONAL IMPRISONMENT FOR PUNITIVE
PURPOSES, WHICH INVOLVES DIFFERENT CONSIDERATIONS.  ONCE THE GRAND JURY
CEASES TO FUNCTION, THE RATIONALE FOR CIVIL CONTEMPT VANISHES, AND THE
CONTEMNOR HAS TO BE RELEASED.  SINCE THE TERM OF THE GRAND JURY IN
THESE CASES EXPIRED IN MARCH 1965, THE JUDGMENTS HERE FOR REVIEW ARE
VACATED, AND THE CASES REMANDED WITH DIRECTIONS THAT THEY BE
DISMISSED.  IT IS SO ORDERED. 

FN1  THIS RULE PROVIDES: 

"DISPOSITION UPON NOTICE AND HEARING.  A CRIMINAL CONTEMPT EXCEPT AS
PROVIDED IN SUBDIVISION (A) OF THIS RULE SHALL BE PROSECUTED ON
NOTICE.  THE NOTICE SHALL STATE THE TIME AND PLACE OF HEARING, ALLOWING
A REASONABLE TIME FOR THE PREPARATION OF THE DEFENSE, AND SHALL STATE
THE ESSENTIAL FACTS CONSTITUTING THE CRIMINAL CONTEMPT CHARGED AND
DESCRIBE IT AS SUCH.  THE NOTICE SHALL BE GIVEN ORALLY BY THE JUDGE IN
OPEN COURT IN THE PRESENCE OF THE DEFENDANT OR, ON APPLICATION OF THE
UNITED STATES ATTORNEY OR OF AN ATTORNEY APPOINTED BY THE COURT FOR
THAT PURPOSE, BY AN ORDER TO SHOW CAUSE OR AN ORDER OF ARREST.  THE
DEFENDANT IS ENTITLED TO A TRIAL BY JURY IN ANY CASE IN WHICH AN ACT OF
CONGRESS SO PROVIDES.  HE IS ENTITLED TO ADMISSION TO BAIL AS PROVIDED
IN THESE RULES.  IF THE CONTEMPT CHARGED INVOLVES DISRESPECT TO OR
CRITICISM OF A JUDGE, THAT JUDGE IS DISQUALIFIED FROM PRESIDING AT THE
TRIAL OR HEARING EXCEPT WITH THE DEFENDANT'S CONSENT.  UPON A VERDICT
OR FINDING OF GUILT THE COURT SHALL ENTER AN ORDER FIXING THE
PUNISHMENT." 

FN2  THESE QUESTIONS WERE AS FOLLOWS: 

"MR. PAPPADIO, WHO WERE THE ATTORNEYS WHO WERE PRESENT AT THESE
MEETINGS?" 

"ASIDE FROM THE MEETINGS WHICH YOU DESCRIBED, WHICH TOOK PLACE ON THE
STREET, WHERE ELSE DID YOU MEET WITH LUCCHESE?" 

"WHO ELSE WAS PRESENT AT THESE MEETINGS BESIDES YOURSELF, LUCCHESE
AND THE ATTORNEYS?" 

"ALL RIGHT; HOW MANY OF SUCH MEETINGS WERE THERE?" 

"WHERE DID THE MEETINGS TAKE PLACE?" 

FN3  BECAUSE OF THE SIMILARITY IN LANGUAGE BETWEEN THE TWO CONTEMPT
ORDERS, IT IS REASONABLE TO ASSUME THAT THE COURT OF APPEALS ALSO
CONSTRUED PAPPADIO'S SENTENCE AS GIVING HIM AN ABSOLUTE RIGHT TO BE
RELEASED UPON COMPLIANCE, ALTHOUGH THE OPINION WAS SILENT ON THIS
POINT. 

FN4  THE RECORD OF THE CONTEMPT PROCEEDINGS IN PAPPADIO'S CASE
FURTHER INDICATES THAT THE DISTRICT JUDGE VIEWED THE MATTER AS CIVIL
CONTEMPT.  THE FOLLOWING COLLOQUY OFFERS ONE EXAMPLE: 

"MR. LAWLER:  YOUR HONOR, SINCE THE PRIMARY PURPOSE OF THIS
INVESTIGATION IS TO OBTAIN TESTIMONY OR TO OBTAIN EVIDENCE SO THAT
INDICTMENTS MIGHT BE FILED OR VOTED UPON, MIGHT I SUGGEST  ...  THAT
YOU INCLUDE A CLAUSE IN THE SENTENCE THAT IF MR. PAPPADIO DOES ANSWER
THE QUESTIONS AS DIRECTED, THAT A FURTHER APPLICATION MAY BE MADE TO
YOUR HONOR TO RECONSIDER THIS SENTENCE, SO THAT WE WILL HAVE SOME
COERCIVE EFFECT ON MR. PAPPADIO.    "THE COURT:  YES, I SHALL ADOPT THE
PROPOSAL PRESENTED BY ASSISTANT UNITED STATES ATTORNEY LAWLER, AND MY
DECISION SHALL BE DEEMED TO INCLUDE A PROVISION READING IN THE FORM AND
MANNER PROPOSED  ... ."  THE ASSISTANT UNITED STATES ATTORNEY AGAIN
STRESSED THE COERCIVE FUNCTION OF THE SENTENCES WHEN OPPOSING
APPLICATIONS FOR BAIL PENDING APPEAL BY BOTH SHILLITANI AND PAPPADIO. 

FN5  ON THE CONTRARY, A CRIMINAL CONTEMPT PROCEEDING WOULD BE
CHARACTERIZED BY THE IMPOSITION OF AN UNCONDITIONAL SENTENCE FOR
PUNISHMENT OR DETERRENCE.  SEE CHEFF V. SCHNACKENBERG, POST, AT 377. 

FN6  THE COURT MAY ALSO IMPOSE A DETERMINATE SENTENCE WHICH INCLUDES
A PURGE CLAUSE.  THIS TYPE OF SENTENCE WOULD BENEFIT AN INCORRIGIBLE
WITNESS.  IT RAISES NONE OF THE PROBLEMS SURROUNDING A JUDICIAL COMMAND
THAT UNLESS THE WITNESS TESTIFIES WITHIN A SPECIFIED TIME HE WILL BE
IMPRISONED FOR A TERM OF YEARS.  SEE REINA V. UNITED STATES, 364 U.S.
507 (1960). 

FN7  SEE PARKER V. UNITED STATES, 153 F.2D 66, 70 (C.A. 1ST CIR.
1946). 

FN8  BY THE SAME TOKEN, THE SENTENCES OF IMPRISONMENT MAY BE
CONTINUED OR REIMPOSED IF THE WITNESSES ADHERE TO THEIR REFUSAL TO
TESTIFY BEFORE A SUCCESSOR GRAND JURY. 

FN9  THIS DOCTRINE FURTHER REQUIRES THAT THE TRIAL JUDGE FIRST
CONSIDER THE FEASIBILITY OF COERCING TESTIMONY THROUGH THE IMPOSITION
OF CIVIL CONTEMPT.  THE JUDGE SHOULD RESORT TO CRIMINAL SANCTIONS ONLY
AFTER HE DETERMINES, FOR GOOD REASON, THAT THE CIVIL REMEDY WOULD BE
INAPPROPRIATE. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THESE CASES. 

FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 380. 
..END :


















CHEFF V. SCHNACKENBERG 384 U.S. 373 


NO. 67.  ARGUED MARCH 3, 1966.  - DECIDED JUNE 6, 1966.  - 341 F.2D 548,
AFFIRMED. 


THE FEDERAL TRADE COMMISSION (FTC) FOLLOWING HEARINGS ISSUED A CEASE
AND-DESIST ORDER AGAINST A COMPANY "AND ITS OFFICERS, AGENTS,
REPRESENTATIVES AND EMPLOYEES" PROHIBITING THE CONTINUANCE OF PRACTICES
IT FOUND ILLEGAL.  THE COMPANY PETITIONED THE COURT OF APPEALS TO
REVIEW AND SET ASIDE THE ORDER.  CLAIMING THAT THE COMPANY CONTINUED TO
VIOLATE THE ORDER, THE FTC MOVED FOR A PENDENTE LITE COMPLIANCE ORDER,
WHICH THE COURT ISSUED.  FOLLOWING OPINIONS BY THE COURT OF APPEALS
UPHOLDING THE FTC'S JURISDICTION TO ENTER THE ORDER AND AFFIRMING ON
THE MERITS, THE FTC PETITIONED THAT COURT TO ENTER A SHOW CAUSE ORDER
AGAINST THE COMPANY FOR CONTEMPT OF THE PENDENTE LITE ORDER AND, LATER,
RULES WERE ISSUED AGAINST PETITIONER, WHO HAD LONG SINCE SEVERED HIS
CONNECTIONS AS A COMPANY OFFICIAL, AND OTHERS TO SHOW CAUSE WHY THEY
SHOULD NOT BE HELD IN CRIMINAL CONTEMPT FOR HAVING AIDED AND ABETTED
THE COMPANY TO VIOLATE THE PENDENTE LITE ORDER.  PETITIONER'S DEMAND
FOR A JURY TRIAL WAS DENIED.  FOLLOWING A HEARING HE WAS FOUND GUILTY
OF COMMITTING ACTS OF CONTEMPT VIOLATING THE PENDENTE LITE ORDER DURING
THE PERIOD FROM ITS ENTRY TO THE ENTRY OF FINAL JUDGMENT AND WAS GIVEN
A SIX MONTHS' SENTENCE.  THIS COURT GRANTED THE PETITION FOR CERTIORARI
LIMITED TO REVIEW OF THE QUESTION WHETHER, AFTER DENIAL OF A DEMAND FOR
A JURY, A SIX MONTHS' IMPRISONMENT SENTENCE IS PERMISSIBLE UNDER
ARTICLE III AND THE SIXTH AMENDMENT OF THE CONSTITUTION.  HELD:  THE
JUDGMENT IS AFFIRMED.  PP. 375-384. 

MR. JUSTICE CLARK, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE BRENNAN,
AND MR. JUSTICE FORTAS, CONCLUDED THAT: 

1.  THE COURT OF APPEALS HAD THE POWER TO PUNISH FOR CRIMINAL
CONTEMPT THE DISOBEDIENCE OF ITS INTERLOCUTORY ORDER.  PP. 377-378. 

(A)  PETITIONER'S CONTENTION THAT CONTEMPT PROCEEDINGS STEMMING FROM
ADMINISTRATIVE LAW ENFORCEMENT PROCEEDINGS ARE CIVIL RATHER THAN
CRIMINAL IS IRRELEVANT, SINCE A JURY TRIAL IS NOT REQUIRED IN CIVIL
CONTEMPT PROCEEDINGS.  SHILLITANI V. UNITED STATES, ANTE, P. 364.  P.
377. 

(B)  THE PURPOSE OF THE PROCEEDINGS AGAINST PETITIONER COULD IN NO
EVENT HAVE BEEN REMEDIAL, I.E., CIVIL IN NATURE, IN VIEW OF HIS
SEVERANCE LONG BEFORE THE CONTEMPT PROCEEDINGS OF ALL CONNECTIONS WITH
THE COMPANY, WHICH, MOREOVER, NO LONGER ENGAGED IN THE BUSINESS
FUNCTIONS WHICH THE ALLEGED CONTEMPT VIOLATIONS INVOLVED.  P. 377. 

(C)  THE BASIS OF THE CONTEMPT CHARGED AGAINST PETITIONER WAS
DISOBEDIENCE OF THE ORDER OF THE COURT, NOT THAT OF THE FTC.  P. 378. 

2.  EVEN ASSUMING, CONTRARY TO UNITED STATES V. BARNETT, 376 U.S.
681, THAT CRIMINAL CONTEMPT PROCEEDINGS ARE CRIMINAL ACTIONS FALLING
WITHIN THE REQUIREMENTS OF ARTICLE III AND THE SIXTH AMENDMENT OF THE
CONSTITUTION, THE RIGHT TO A JURY TRIAL DOES NOT EXTEND TO PETTY
OFFENSES, SUCH AS THE OFFENSE INVOLVED HERE.  PP. 378-380. 

(A)  ACCORDING TO 18 U.S.C. SEC 1 (1964 ED.), ANY MISDEMEANOR, THE
PENALTY FOR WHICH DOES NOT EXCEED SIX MONTHS' IMPRISONMENT, IS A "PETTY
OFFENSE."  P. 379. 

(B)  SINCE PETITIONER RECEIVED A SIX MONTHS' SENTENCE AND THE NATURE
OF CRIMINAL CONTEMPT DOES NOT NECESSARILY REQUIRE ITS BEING EXCLUDED
FROM THE CATEGORY OF PETTY OFFENSES, PETITIONER'S OFFENSE CAN BE
TREATED AS "PETTY."  P. 380. 

(C)  IN THE EXERCISE OF THE COURT'S SUPERVISORY POWER AND UNDER THE
PECULIAR POWER OF FEDERAL COURTS TO REVISE SENTENCES IN CONTEMPT CASES,
IT IS RULED THAT CRIMINAL CONTEMPT SENTENCES EXCEEDING SIX MONTHS MAY
NOT BE IMPOSED ABSENT A JURY TRIAL OR WAIVER THEREOF, THOUGH A
REVIEWING COURT MAY REVISE SENTENCES IN CONTEMPT CASES TRIED WITH OR
WITHOUT JURIES.  P. 380. 

MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE STEWART, CONCLUDED THAT: 

1.  THE PROSECUTION OF CRIMINAL CONTEMPTS IS NOT SUBJECT TO THE GRAND
AND PETIT JURY REQUIREMENTS OF ARTICLE III, SEC 2, OF THE CONSTITUTION
AND THE FIFTH AND SIXTH AMENDMENTS.  GREEN V. UNITED STATES, 356 U.S.
165.  PP. 381-382. 

2.  THE PREVAILING OPINION'S NEW SUPERVISORY-POWER RULE MAY GENERATE
DIFFICULTY FOR FEDERAL COURTS SEEKING TO IMPLEMENT LOCALLY UNPOPULAR
DECREES AND CREATE AN ADMINISTRATIVE PROBLEM FOR THE TRIAL JUDGE, WHO
IN DECIDING WHETHER TO PROFFER A JURY TRIAL MUST ANTICIPATE THE
SENTENCE, WHICH IN TURN DEPENDS ON THE EVIDENCE REVEALED IN THE TRIAL. 
P. 382. 

CHEFF V. SCHNACKENBERG, U.S. CIRCUIT JUDGE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BRENNAN AND MR.
JUSTICE FORTAS JOIN. 

THIS IS A COMPANION CASE TO NO. 412, SHILLITANI V. UNITED STATES, AND
NO. 442, PAPPADIO V. UNITED STATES, ANTE, P. 364.  UNLIKE THOSE CASES,
THIS IS A CRIMINAL CONTEMPT PROCEEDING. 

UPON PETITION OF THE FEDERAL TRADE COMMISSION, CHEFF WAS CHARGED,
ALONG WITH HOLLAND FURNACE COMPANY AND 10 OTHER OF ITS OFFICERS, WITH
CRIMINAL CONTEMPT OF THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT.  THE
ALLEGED CONTEMNORS WERE TRIED BEFORE A PANEL OF THREE JUDGES OF THE
COURT OF APPEALS WITHOUT A JURY.  THE CORPORATION AND THREE OF ITS
OFFICERS, INCLUDING CHEFF, WERE FOUND GUILTY OF VIOLATING A PREVIOUS
ORDER OF THAT COURT.  CHEFF, A FORMER PRESIDENT AND CHAIRMAN OF THE
BOARD OF HOLLAND, WAS SENTENCED TO SIX MONTHS' IMPRISONMENT; THE OTHER
TWO OFFICERS WERE FINED $500 EACH; AND THE CORPORATION WAS FINED
$100,000.  THE REMAINING EIGHT INDIVIDUALS WERE ACQUITTED.  341 F.2D
548.  CHEFF AND HOLLAND PETITIONED FOR CERTIORARI.  WE DENIED HOLLAND'S
PETITION, 381 U.S. 924, AND GRANTED CHEFF'S, LIMITED TO A REVIEW OF THE
QUESTION WHETHER, AFTER A DENIAL OF A DEMAND FOR A JURY, A SENTENCE OF
IMPRISONMENT OF SIX MONTHS IS CONSTITUTIONALLY PERMISSIBLE UNDER
ARTICLE III AND THE SIXTH AMENDMENT.  382 U.S. 917.  WE HOLD THAT CHEFF
WAS NOT ENTITLED TO A JURY TRIAL AND AFFIRM THE JUDGMENT. 

                                             I. 

THE CASE HAD ITS INCEPTION IN PROCEEDINGS BEFORE THE FEDERAL TRADE
COMMISSION WHERE, IN 1954, COMPLAINTS WERE ISSUED AGAINST HOLLAND
CHARGING IT WITH UNFAIR METHODS OF COMPETITION AND DECEPTIVE TRADE
PRACTICES IN CONNECTION WITH THE SALE OF ITS PRODUCTS.  AFTER EXTENSIVE
HEARINGS, THE COMMISSION ISSUED A CEASE-AND-DESIST ORDER AGAINST
HOLLAND "AND ITS OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES"
PROHIBITING THE CONTINUANCE OF PRACTICES THE COMMISSION FOUND ILLEGAL. 
IN THE MATTER OF HOLLAND FURNACE CO., 55 F.T.C. 55 (1958). 

HOLLAND PETITIONED THE COURT OF APPEALS TO REVIEW AND SET ASIDE THE
ORDER OF THE COMMISSION.  SOON THEREAFTER THE COMMISSION, CLAIMING THAT
HOLLAND WAS CONTINUING TO VIOLATE ITS ORDER, MOVED THE COURT OF APPEALS
FOR A PENDENTE LITE ORDER REQUIRING COMPLIANCE.  ON AUGUST 5, 1959, THE
COURT ISSUED AN ORDER COMMANDING HOLLAND TO "OBEY AND COMPLY WITH THE
ORDER TO CEASE AND DESIST  ... UNLESS AND UNTIL SAID ORDER SHALL BE SET
ASIDE UPON REVIEW BY THIS COURT OR BY THE SUPREME COURT OF THE UNITED
STATES  ...  ."  THIS ORDER FORMS THE BASIS OF THIS CRIMINAL CONTEMPT
PROCEEDING.  MEANWHILE, HOLLAND'S PETITION FOR REVIEW WAS DECIDED
ADVERSELY TO THE CORPORATION.  IN SEPARATE OPINIONS, THE COURT OF
APPEALS UPHELD THE JURISDICTION OF THE COMMISSION TO ENTER ITS CEASE
AND-DESIST ORDER, 269 F.2D 203 (1959), AND AFFIRMED ON THE MERITS, 295
F.2D 302 (1961). 

IN MARCH 1962 THE COMMISSION PETITIONED THE COURT OF APPEALS TO ENTER
A SHOW CAUSE ORDER AGAINST HOLLAND FOR CONTEMPT OF ITS PENDENTE LITE
ORDER.  A RULE WAS ISSUED AND ATTORNEYS APPOINTED TO PROSECUTE ON
BEHALF OF THE COURT.  THEREAFTER, IN APRIL 1963, RULES WERE ISSUED
AGAINST CHEFF AND THE OTHER OFFICERS, AS INDIVIDUALS, TO SHOW CAUSE WHY
THEY SHOULD NOT BE HELD IN CRIMINAL CONTEMPT "BY REASON OF HAVING
KNOWINGLY, WILFULLY AND INTENTIONALLY CAUSED, AND AIDED AND ABETTED IN
CAUSING, RESPONDENT HOLLAND FURNACE COMPANY TO VIOLATE AND DISOBEY, AND
FAIL AND REFUSE TO COMPLY WITH" THE ORDER OF AUGUST 5, 1959.  CHEFF
DEMANDED A JURY TRIAL, WHICH WAS DENIED, AND FOLLOWING A FULL HEARING
EXTENDING OVER A 10-DAY PERIOD THE COURT FOUND HIM GUILTY.  AS WE HAVE
STATED, A SENTENCE OF SIX MONTHS WAS IMPOSED.  IN ACCORDANCE WITH THE
LIMITED GRANT OF CERTIORARI, THERE IS NO ISSUE HERE AS TO THE
SUFFICIENCY OF THE HEARING, EXCEPTING THE ABSENCE OF A JURY. 

II. 

CHEFF FIRST CONTENDS THAT CONTEMPT PROCEEDINGS IN THE COURT OF
APPEALS WHICH STEM FROM ADMINISTRATIVE LAW ENFORCEMENT PROCEEDINGS ARE
CIVIL, RATHER THAN CRIMINAL, IN NATURE.  THIS MAY BE TRUE WHERE THE
PURPOSE OF THE PROCEEDING IS REMEDIAL.  CF. SHILLITANI V. UNITED
STATES, ANTE, P. 364.  WITHIN THE CONTEXT OF THE QUESTION BEFORE US,
HOWEVER, THE CONTENTION IS IRRELEVANT, FOR A JURY TRIAL IS NOT REQUIRED
IN CIVIL CONTEMPT PROCEEDINGS, AS WE SPECIFICALLY REAFFIRM IN
SHILLITANI, SUPRA.  IN ANY EVENT, THE CONTENTION IS WITHOUT MERIT.  THE
PURPOSE OF THE PROCEEDINGS AGAINST CHEFF COULD NOT HAVE BEEN REMEDIAL
FOR HE HAD SEVERED ALL CONNECTIONS WITH HOLLAND IN 1962, LONG BEFORE
THE CONTEMPT PROCEEDINGS WERE INSTITUTED AGAINST HIM.  HE HAD NO
CONTROL WHATEVER OVER THE CORPORATION AND COULD NO LONGER REQUIRE ANY
COMPLIANCE WITH THE ORDER OF THE COMMISSION.  MOREOVER, AS CHEFF
HIMSELF POINTS OUT, THE CORPORATION "HAD COMPLETELY WITHDRAWN FROM THE
BUSINESS OF REPLACEMENT OF FURNACES, WHICH IS THE AREA IN WHICH THE
VIOLATION IS ALLEGED."  THERE WAS, THEREFORE, AN "ABSENCE OF ANY
NECESSITY OF ASSURING FUTURE COMPLIANCE" WHICH MADE THE SIX-MONTH
SENTENCE "ENTIRELY PUNITIVE."  BRIEF FOR PETITIONER, P. 16. 

THERE CAN BE NO DOUBT THAT THE COURTS OF APPEALS HAVE THE POWER TO
PUNISH FOR CONTEMPT.  18 U.S.C. SEC 401 (1964 ED.).  SEE, E.G., CASES
CITED IN UNITED STATES V. BARNETT, 376 U.S. 681, 694, N. 12 (1964). 
AND IT MATTERS NOT THAT THE CONTEMPT ARISES INDIRECTLY FROM PROCEEDINGS
OF AN ADMINISTRATIVE AGENCY.  CHEFF WAS FOUND IN CONTEMPT OF THE COURT
OF APPEALS, NOT OF THE COMMISSION.  THE SOLE GROUND FOR THE CONTEMPT
PROCEEDINGS IS STATED IN THE INITIAL ORDER SERVED ON CHEFF AND THE
OTHER PARTIES TO SHOW CAUSE WHY THEY SHOULD NOT BE ADJUDGED IN CRIMINAL
CONTEMPT OF THAT COURT, FOR VIOLATIONS OF THAT COURT'S PENDENTE LITE
ORDER.  INDEED, CHEFF'S ANSWER ITSELF VERIFIED THAT HE HAD NOT
VIOLATED, DISOBEYED, AND FAILED AND REFUSED TO COMPLY WITH "AN ORDER OF
THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ENTERED ON
AUGUST 5, 1959  ...  ."  IN ADDITION, THE COURT OF APPEALS ITSELF WAS
QUITE SPECIFIC IN LIMITING THE CONTEMPT CHARGES TO "COVER THE PERIOD
FROM AUGUST 5, 1959 TO THE ENTRY OF THE FINAL JUDGMENT IN OCTOBER 1961
BY THIS COURT."  341 F.2D, AT 550.  AS THE COURT CLEARLY HAD THE
AUTHORITY TO ENTER ITS INTERLOCUTORY ORDER, FEDERAL TRADE COMMISSION
ACT, SEC 5, 38 STAT. 719, AS AMENDED, 15 U.S.C. SEC 45(C) (1964 ED.),
IT FOLLOWS THAT THE COURT HAS THE POWER TO PUNISH FOR CONTEMPT ANY
DISOBEDIENCE OF THAT ORDER. 

CHEFF'S NEXT AND CHIEF CONTENTION IS THAT CRIMINAL CONTEMPT
PROCEEDINGS ARE CRIMINAL ACTIONS FALLING WITHIN THE REQUIREMENTS OF
ARTICLE III AND THE SIXTH AMENDMENT OF THE CONSTITUTION.*  ONLY TWO
TERMS AGO WE HELD TO THE CONTRARY IN UNITED STATES V. BARNETT, SUPRA;
HOWEVER, SOME MEMBERS OF THE COURT WERE OF THE VIEW THERE THAT, WITHOUT
REGARD TO THE SERIOUSNESS OF THE OFFENSE, PUNISHMENT BY SUMMARY TRIAL
WITHOUT A JURY WOULD BE CONSTITUTIONALLY LIMITED TO THAT PENALTY
PROVIDED FOR PETTY OFFENSES.  376 U.S., AT 694, N. 12.  CHEFF, HOWEVER,
WOULD HAVE US HOLD THAT THE RIGHT TO JURY TRIAL ATTACHES IN ALL
CRIMINAL CONTEMPTS AND NOT MERELY IN THOSE WHICH ARE OUTSIDE THE
CATEGORY OF "PETTY OFFENSES." 

*  THE RELEVANT PORTIONS OF THESE PROVISIONS DECLARE: 

"THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY
JURY  ...  ."  ART. III, SEC 2. 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY  ...  ."  SIXTH
AMENDMENT. 

CHEFF'S ARGUMENT IS UNAVAILING, FOR WE ARE CONSTRAINED TO VIEW THE
PROCEEDINGS HERE AS EQUIVALENT TO A PROCEDURE TO PROSECUTE A PETTY
OFFENSE, WHICH UNDER OUR DECISIONS DOES NOT REQUIRE A JURY TRIAL.  OVER
75 YEARS AGO IN CALLAN V. WILSON, 127 U.S. 540, 557 (1888), THIS COURT
STATED THAT "IN THAT CLASS OR GRADE OF OFFENCES CALLED PETTY OFFENCES,
WHICH, ACCORDING TO THE COMMON LAW, MAY BE PROCEEDED AGAINST SUMMARILY
IN ANY TRIBUNAL LEGALLY CONSTITUTED FOR THAT PURPOSE," A JURY TRIAL IS
NOT REQUIRED.  AND AS LATE AS 1937 THE COURT REITERATED IN DISTRICT OF
COLUMBIA V. CLAWANS, 300 U.S. 617, 624, THAT:  "IT IS SETTLED BY THE
DECISIONS OF THIS COURT  ...  THAT THE RIGHT OF TRIAL BY JURY  ...
DOES NOT EXTEND TO EVERY CRIMINAL PROCEEDING.  AT THE TIME OF THE
ADOPTION OF THE CONSTITUTION THERE WERE NUMEROUS OFFENSES, COMMONLY
DESCRIBED AS 'PETTY,' WHICH WERE TRIED SUMMARILY WITHOUT A JURY  ...
."  SEE ALSO NATAL V. LOUISIANA, 139 U.S. 621 (1891); LAWTON V. STEELE,
152 U.S. 133, 141-142 (1894); SCHICK V. UNITED STATES, 195 U.S. 65, 68
72 (1904); DISTRICT OF COLUMBIA V. COLTS, 282 U.S. 63, 72-73 (1930). 
INDEED, MR. JUSTICE GOLDBERG, JOINED BY THE CHIEF JUSTICE AND MR.
JUSTICE DOUGLAS, TOOK THE POSITION IN HIS DISSENTING OPINION IN UNITED
STATES V. BARNETT, SUPRA, AT 751, THAT "AT THE TIME OF THE CONSTITUTION
ALL TYPES OF 'PETTY' OFFENSES PUNISHABLE BY TRIVIAL PENALTIES WERE
GENERALLY TRIABLE WITHOUT A JURY.  THIS HISTORY JUSTIFIES THE
IMPOSITION WITHOUT TRIAL BY JURY OF NO MORE THAN TRIVIAL PENALTIES FOR
CRIMINAL CONTEMPTS." 

ACCORDING TO 18 U.S.C. SEC 1 (1964 ED.), "ANY MISDEMEANOR, THE
PENALTY FOR WHICH DOES NOT EXCEED IMPRISONMENT FOR A PERIOD OF SIX
MONTHS" IS A "PETTY OFFENSE."  SINCE CHEFF RECEIVED A SENTENCE OF SIX
MONTHS' IMPRISONMENT (SEE DISTRICT OF COLUMBIA V. CLAWANS, SUPRA, AT
627-628), AND SINCE THE NATURE OF CRIMINAL CONTEMPT, AN OFFENSE SUI
GENERIS, DOES NOT, OF ITSELF, WARRANT TREATMENT OTHERWISE (CF. DISTRICT
OF COLUMBIA V. COLTS, SUPRA), CHEFF'S OFFENSE CAN BE TREATED ONLY AS
"PETTY" IN THE EYES OF THE STATUTE AND OUR PRIOR DECISIONS.  WE
CONCLUDE THEREFORE THAT CHEFF WAS PROPERLY CONVICTED WITHOUT A JURY. 
AT THE SAME TIME, WE RECOGNIZE THAT BY LIMITING OUR OPINION TO THOSE
CASES WHERE A SENTENCE NOT EXCEEDING SIX MONTHS IS IMPOSED WE LEAVE THE
FEDERAL COURTS AT SEA IN INSTANCES INVOLVING GREATER SENTENCES. 
EFFECTIVE ADMINISTRATION COMPELS US TO EXPRESS A VIEW ON THAT POINT. 
THEREFORE, IN THE EXERCISE OF THE COURT'S SUPERVISORY POWER AND UNDER
THE PECULIAR POWER OF THE FEDERAL COURTS TO REVISE SENTENCES IN
CONTEMPT CASES, WE RULE FURTHER THAT SENTENCES EXCEEDING SIX MONTHS FOR
CRIMINAL CONTEMPT MAY NOT BE IMPOSED BY FEDERAL COURTS ABSENT A JURY
TRIAL OR WAIVER THEREOF.  NOTHING WE HAVE SAID, HOWEVER, RESTRICTS THE
POWER OF A REVIEWING COURT, IN APPROPRIATE CIRCUMSTANCES, TO REVISE
SENTENCES IN CONTEMPT CASES TRIED WITH OR WITHOUT JURIES. 

THE JUDGMENT IN THIS CASE IS AFFIRMED. 

MR. JUSTICE STEWART, JOINING PART I OF MR. JUSTICE HARLAN'S SEPARATE
OPINION, CONCURS IN THE RESULT. 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT IN NO. 67 AND DISSENTING
IN NOS. 412 AND 442. 

BY THE OPINIONS IN THESE CASES, TWO NEW LIMITATIONS ON THE USE OF THE
FEDERAL CONTEMPT POWER ARE INAUGURATED.  IN CHEFF, IT IS ANNOUNCED THAT
PRISON SENTENCES FOR CRIMINAL CONTEMPT IN A FEDERAL COURT MUST BE
LIMITED TO SIX MONTHS UNLESS THE DEFENDANT IS AFFORDED A TRIAL BY
JURY.  IN SHILLITANI AND PAPPADIO, AN AUTOMATIC "PURGE" CLAUSE AND
RELATED INDICIA ARE FOUND TO CONVERT A CRIMINAL SENTENCE INTO A CIVIL
SANCTION WHICH CANNOT SURVIVE THE GRAND JURY'S EXPIRATION.  I BELIEVE
THESE LIMITATIONS ARE ERRONEOUS IN REASONING AND RESULT ALIKE. 

                             I. 

THE DECISION TO EXTEND THE RIGHT TO JURY TRIAL TO CRIMINAL CONTEMPTS
ENDING IN SENTENCES GREATER THAN SIX MONTHS IS THE PRODUCT OF THE VIEWS
OF FOUR JUSTICES WHO REST THAT CONCLUSION ON THE COURT'S SUPERVISORY
POWER AND THOSE OF TWO OTHERS WHO BELIEVE THAT JURY TRIALS ARE
CONSTITUTIONALLY REQUIRED IN ALL BUT "PETTY" CRIMINAL CONTEMPTS.  THE
FOUR JUSTICES WHO RELY ON THE SUPERVISORY POWER ALSO FIND THE
CONSTITUTIONAL QUESTION A "DIFFICULT" ONE.  ANTE, AT 365.  HOWEVER, AS
RECENTLY AS 1958, THIS COURT IN GREEN V. UNITED STATES, 356 U.S. 165,
UNEQUIVOCALLY DECLARED THAT THE PROSECUTION OF CRIMINAL CONTEMPTS WAS
NOT SUBJECT TO THE GRAND AND PETIT JURY REQUIREMENTS OF ART. III, SEC
2, OF THE CONSTITUTION AND THE FIFTH AND SIXTH AMENDMENTS.  THIS
DOCTRINE, WHICH WAS ACCEPTED BY FEDERAL JUDGES IN THE EARLY DAYS OF THE
REPUBLIC  (FN1) AND HAS BEEN STEADFASTLY ADHERED TO IN CASE AFTER CASE
IN THIS COURT,  (FN2) SHOULD BE RECOGNIZED NOW AS A DEFINITIVE ANSWER
TO PETITIONERS' CONSTITUTIONAL CLAIMS IN EACH OF THE CASES BEFORE US. 

THE PREVAILING OPINION'S NEW SUPERVISORY-POWER RULE SEEMS TO ME
EQUALLY INFIRM.  THE FEW SENTENCES DEVOTED TO THIS DICTUM GIVE NO
REASON WHY A SIX-MONTH LIMITATION IS DESIRABLE.  NOR IS THERE ANYTHING
ABOUT THE SENTENCES ACTUALLY IMPOSED IN THESE INSTANCES THAT WARRANTS
REAPPRAISAL OF THE PRESENT PRACTICE IN CONTEMPT SENTENCING.  IN CHEFF
ITSELF THE SENTENCE WAS FOR SIX MONTHS.  SHILLITANI AND PAPPADIO
INVOLVED TWO-YEAR SENTENCES BUT EACH WAS MODERATED BY A PURGE CLAUSE
AND SEEMINGLY IN NEITHER CASE WERE THERE DISPUTED FACTS SUITABLE FOR A
JURY.  AMONG THE PROMINENT SHORTCOMINGS OF THE NEW RULE, WHICH ARE
SIMPLY DISREGARDED, IS THE DIFFICULTY IT MAY GENERATE FOR FEDERAL
COURTS SEEKING TO IMPLEMENT LOCALLY UNPOPULAR DECREES.  ANOTHER PROBLEM
IS IN ADMINISTRATION:  TO DECIDE WHETHER TO PROFFER A JURY TRIAL, THE
JUDGE MUST NOW LOOK AHEAD TO THE SENTENCE, WHICH ITSELF DEPENDS ON THE
PRECISE FACTS THE TRIAL IS TO REVEAL.    IN MY VIEW, BEFORE THIS COURT
IMPROVISES A RULE NECESSARILY BASED ON PURE POLICY THAT LARGELY SHRUGS
OFF HISTORY, A FAR MORE PERSUASIVE SHOWING CAN PROPERLY BE EXPECTED. 

                              II. 

NO LESS REMARKABLE IS THE COURT'S UPSETTING OF THE SENTENCES IN
SHILLITANI AND PAPPADIO ON THE GROUND THAT THE JAILINGS WERE REALLY FOR
CIVIL CONTEMPT WHICH CANNOT ENDURE BEYOND THE GRAND JURY'S TERM.  (FN3)
IT CAN HARDLY BE SUGGESTED THAT THE LOWER COURTS DID NOT INTEND TO
INVOKE THE CRIMINAL CONTEMPT POWER TO KEEP THE PETITIONERS IN JAIL
AFTER THE GRAND JURY EXPIRED; THE CONTRARY IS DEMONSTRATED BY THE
ENTIRE RECORD.  (FN4)  INSTEAD, THE COURT ATTEMPTS TO CHARACTERIZE THE
PROCEEDINGS BY A SUPPOSED PRIMARY OR ESSENTIAL "PURPOSE" AND THEN LOPS
OFF SO MUCH OF THE SENTENCES AS DO NOT CONFORM TO THAT PURPOSE.  WHAT
THE COURT FAILS TO DO IS TO GIVE ANY REASON IN POLICY, PRECEDENT,
STATUTE LAW, OR THE CONSTITUTION FOR ITS UNSPOKEN PREMISE THAT A
SENTENCING JUDGE CANNOT COMBINE TWO PURPOSES INTO A SINGLE SENTENCE OF
THE TYPE HERE IMPOSED. 

WITHOUT ARGUING ABOUT WHICH PURPOSE WAS PRIMARY, OBVIOUSLY A FIXED
SENTENCE WITH A PURGE CLAUSE CAN BE SAID TO EMBODY ELEMENTS OF BOTH
CRIMINAL AND CIVIL CONTEMPT.  HOWEVER, SO FAR AS THE SAFEGUARDS OF
CRIMINAL CONTEMPT PROCEEDINGS MAY BE SUPERIOR TO CIVIL, THE PETITIONERS
HAVE NOT BEEN DISADVANTAGED IN THIS REGARD, NOR DO THEY CLAIM
OTHERWISE.  ADDING A PURGE CLAUSE TO A FIXED SENTENCE IS A BENEFIT FOR
THE PETITIONERS, NOT A REASON FOR COMPLAINT.  SIMILARLY THE PUBLIC
INTEREST IS SERVED BY EXERTING STRONG PRESSURE TO OBTAIN ANSWERS WHILE
TAILORING THE LENGTH OF IMPRISONMENT SO THAT IT MAY PUNISH THE
DEFENDANT ONLY FOR HIS PERIOD OF RECALCITRANCE AND NO MORE.  I SEE NO
REASON WHY A FIXED SENTENCE WITH AN AUTOMATIC PURGE CLAUSE SHOULD BE
DEEMED IMPERMISSIBLE. 

FOR THE FOREGOING REASONS, I WOULD AFFIRM THE JUDGMENTS IN ALL THREE
CASES ON THE BASIS OF GREEN AND LEAVE THE AUTHORITY OF THAT CASE
UNIMPAIRED.  (FN5) 

FN1  E.G., EX PARTE BURR, 4 FED. CAS. 791, 797 (NO. 2,186)(C.C.D.C.
1823)(CRANCH, C.J.): 

"CASES OF CONTEMPT OF COURT HAVE NEVER BEEN CONSIDERED AS CRIMES
WITHIN THE MEANING AND INTENTION OF THE SECOND SECTION OF THE THIRD
ARTICLE OF THE CONSTITUTION OF THE UNITED STATES; NOR HAVE ATTACHMENTS
FOR CONTEMPT EVER BEEN CONSIDERED AS CRIMINAL PROSECUTIONS WITHIN THE
SIXTH AMENDMENT ...  .  MANY MEMBERS OF THE CONSTITUTIONAL CONVENTION
WERE MEMBERS OF THE FIRST CONGRESS, AND IT CANNOT BE BELIEVED THAT THEY
WOULD HAVE SILENTLY ACQUIESCED IN SO PALPABLE A VIOLATION OF THE THEN
RECENT CONSTITUTION, AS WOULD HAVE BEEN CONTAINED IN THE SEVENTEENTH
ALL THE COURTS OF THE UNITED STATES 'TO PUNISH BY FINE AND
IMPRISONMENT, AT THE DISCRETION OF THE SAID COURTS, ALL CONTEMPTS OF
AUTHORITY IN ANY CAUSE OR HEARING BEFORE THE SAME,' - IF THEIR
CONSTRUCTION OF THE CONSTITUTION HAD BEEN THAT WHICH HAS, IN THIS CASE,
BEEN CONTENDED FOR AT THE BAR." 

FN2  SEE EX PARTE TERRY, 128 U.S. 289, 313 (1888)(HARLAN, J.); SAVIN,
PETITIONER, 131 U.S. 267, 278 (1889)(HARLAN, J.); EILENBECKER V.
PLYMOUTH COUNTY, 134 U.S. 31, 36 (1890)(MILLER, J.); INTERSTATE
COMMERCE COMM'N V. BRIMSON, 154 U.S. 447, 489 (1894)(HARLAN, J.);
BESSETTE V. W.B. CONKEY CO., 194 U.S. 324, 336-337 (1904)(BREWER, J.);
GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 450 (1911)(LAMAR,
J.); GOMPERS V. UNITED STATES, 233 U.S. 604, 610-611 (1914)(HOLMES,
J.); EX PARTE HUDGINGS, 249 U.S. 378, 383 (1919)(WHITE, C.J.); MYERS V.
UNITED STATES, 264 U.S. 95, 104-105 (1924)(MCREYNOLDS, J.); MICHAELSON
V. UNITED STATES, 266 U.S. 42, 67 (1924)(SUTHERLAND, J.); EX PARTE
GROSSMAN, 267 U.S. 87, 117-118 (1925)(TAFT, C.J.); FISHER V. PACE, 336
U.S. 155, 159-160 (1949)(REED, J.); OFFUTT V. UNITED STATES, 348 U.S.
11, 14 (1954)(FRANKFURTER, J.). 

FN3  THIS QUESTION WAS NEVER RAISED IN PAPPADIO NOR ENCOMPASSED BY
THE LIMITED GRANT OF CERTIORARI IN THAT CASE, SEE 382 U.S. 916; IN
SHILLITANI, WHERE THE ISSUE IS PROPERLY BEFORE THE COURT, PETITIONER
FILED A CERTIORARI PETITION DISCUSSING THE POINT BUT TENDERED NO BRIEF
ON THE MERITS ON ANY PHASE OF THE CASE. 

FN4  FOR EXAMPLE, IN EACH CASE THE JUDGMENT AND COMMITMENT STATES
THAT "THE DEFENDANT IS GUILTY OF CRIMINAL CONTEMPT" AND ORDERS HIM
COMMITTED "FOR A PERIOD OF TWO (2) YEARS, OR UNTIL FURTHER ORDER OF
THIS COURT," SHOULD THE QUESTIONS BE ANSWERED WITHIN THAT PERIOD BEFORE
THE GRAND JURY EXPIRES. 

FN5  THE TWO-YEAR SENTENCES IMPOSED ON SHILLITANI AND PAPPADIO DO NOT
CALL FOR THE EXERCISE OF THIS COURT'S CORRECTIVE POWER OVER CONTEMPT
SENTENCES, SEE GREEN, 356 U.S., AT 187-189; AS HAS BEEN NOTED, BOTH
SENTENCES CARRIED PURGE CLAUSES. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

                I. 

I ADHERE TO THE VIEW EXPRESSED IN THE DISSENTS IN GREEN V. UNITED
STATES, 356 U.S. 165, 193, AND UNITED STATES V. BARNETT, 376 U.S. 681,
724, 728, THAT CRIMINAL CONTEMPT IS A "CRIME" WITHIN THE MEANING OF
ART. III, SEC 2, OF THE CONSTITUTION AND A "CRIMINAL PROSECUTION"
WITHIN THE MEANING OF THE SIXTH AMENDMENT, BOTH OF WHICH GUARANTEE THE
RIGHT TO TRIAL BY JURY IN SUCH CASES.  (FN1) PUNISHMENT FOR CONTEMPT
WAS LARGELY A MINOR AFFAIR AT THE TIME THE CONSTITUTION WAS ADOPTED,
THE LENGTHY PENALTIES OF THE SORT IMPOSED TODAY BEING A RELATIVELY
RECENT INNOVATION.  (FN2)  I DO NOT SEE HOW WE CAN ANY LONGER TOLERATE
AN "EXCEPTION" TO THE HISTORIC GUARANTY OF A TRIAL BY JURY WHEN MEN ARE
SENT TO PRISON FOR CONTEMPT FOR PERIODS OF A AS LONG AS FOUR YEARS. 
(FN3)  NOR DO THE CONSEQUENCES OF A CONTEMPT CONVICTION NECESSARILY END
WITH THE COMPLETION OF SERVING WHAT MAY BE A SUBSTANTIAL SENTENCE. 
INDEED THE GOVERNMENT IN OTHER CONTEXTS REGARDS A CRIMINAL CONTEMPT
CONVICTION AS THE EQUIVALENT OF A CONVICTION OF OTHER SERIOUS CRIMES. 

THUS THE ATTORNEY GENERAL, IN AN ADVISORY LETTER DATED JANUARY 26,
1966, TO DEPUTY SECRETARY OF DEFENSE CYRUS R. VANCE, CONCLUDED THAT A
CONVICTION FOR CRIMINAL CONTEMPT COULD PROPERLY BE APPLIED TO EXCLUDE
AN ARMY VETERAN FROM BURIAL IN ARLINGTON NATIONAL CEMETERY.  EXCLSUION
WAS BASED ON A REGULATION (30 FED. REG. 8996) WHICH DENIES BURIAL IN A
NATIONAL CEMETERY TO A PERSON "WHO IS CONVICTED IN A FEDERAL  ...
COURT OF A CRIME OR CRIMES, THE RESULT OF WHICH IS  ...  A SENTENCE TO
IMPRISONMENT FOR 5 YEARS OR MORE  ...  ."  THE ATTORNEY GENERAL STATED:
"CRIMINAL CONTEMPT IS REGARDED AS A 'CRIME' FOR MOST PURPOSES CITING
CASES, AND NO REASON IS APPARENT WHY, FOR PURPOSES OF THE INTERMENT
REGULATION, CRIMINAL CONTEMPT SHOULD BE DISTINGUISHED FROM ANY OTHER
INFRACTION OF LAW PUNISHABLE BY IMPRISONMENT." 

THERE IS IN MY VIEW NO LONGER ANY WARRANT FOR REGARDING PUNISHMENT
FOR CONTEMPT AS A MINOR MATTER, STRICTLY BETWEEN THE COURT AND THE
ACCUSED.  "WE TAKE A FALSE AND ONE-SIDED VIEW OF HISTORY WHEN WE IGNORE
ITS DYNAMIC ASPECTS.  THE YEAR BOOKS CAN TEACH US HOW A PRINCIPLE OR A
RULE HAD ITS BEGINNINGS.  THEY CANNOT TEACH US THAT WHAT WAS THE
BEGINNING SHALL ALSO BE THE END."  CARDOZO, THE GROWTH OF THE LAW 104
105 (1924). 

                        II. 

THE PREVAILING OPINION TODAY SUGGESTS THAT A JURY IS REQUIRED WHERE
THE SENTENCE IMPOSED EXCEEDS SIX MONTHS BUT NOT WHEN IT IS LESS THAN
THAT PERIOD.  THIS DISTINCTION WAS FIRST NOTED IN A FOOTNOTE IN THE
BARNETT CASE, WHERE THE COURT DREW AN ANALOGY TO PROSECUTIONS FOR
"PETTY OFFENSES" WHICH NEED NOT BE TRIED BY JURY.  (FN4)  THE
PREVAILING OPINION TODAY SEEKS TO BUTTRESS THIS DISTINCTION BY
REFERENCE TO 18 U.S.C. SEC 1, WHICH DECLARES THAT AN OFFENSE THE
PENALTY FOR WHICH DOES NOT EXCEED SIX MONTHS IS A PETTY OFFENSE.  IT
STUDIOUSLY AVOIDS EMBRACING THE VIEW EXPRESSED BY MR. JUSTICE HARLAN
(ANTE, AT 380), THAT IN NO EVENT DOES THE CONSTITUTION REQUIRE A JURY
TRIAL FOR CONTEMPT.  BUT I DO NOT SEE ANY LINES OF CONSTITUTIONAL
DIMENSION THAT SEPARATE CONTEMPT CASES WHERE THE PUNISHMENT IS LESS
THAN SIX MONTHS FROM THOSE WHERE THE PUNISHMENT EXCEEDS THAT FIGURE. 
THAT IS A MECHANICAL DISTINCTION - UNSUPPORTED BY OUR CASES IN EITHER
THE CONTEMPT FIELD OR IN THE FIELD OF "PETTY OFFENSES." 

THE DIFFICULTY WITH THAT ANALYSIS LIES IN ATTEMPTING TO DEFINE A
PETTY OFFENSE MERELY BY REFERENCE TO THE SENTENCE ACTUALLY IMPOSED. 
THIS DOES NOT SQUARE WITH OUR DECISIONS REGARDING THE "PETTY OFFENSE"
EXCEPTION TO THE JURY TRIAL REQUIREMENT.  FIRST, THE DETERMINATION OF
WHETHER AN OFFENSE IS "PETTY" ALSO REQUIRES AN ANALYSIS OF THE NATURE
OF THE OFFENSE ITSELF; EVEN THOUGH SHORT SENTENCES ARE FIXED FOR A
PARTICULAR OFFENSE A JURY TRIAL WILL BE CONSTITUTIONALLY REQUIRED IF
THE OFFENSE IS OF A SERIOUS CHARACTER.  SECOND, TO THE EXTENT THAT THE
PENALTY IS RELEVANT IN THIS PROCESS OF CHARACTERIZATION, IT IS THE
MAXIMUM POTENTIAL SENTENCE, NOT THE ONE ACTUALLY IMPOSED, WHICH MUST BE
CONSIDERED. 

THE NOTION THAT THE TRIAL OF A PETTY OFFENSE COULD BE CONDUCTED
WITHOUT A JURY WAS FIRST EXPOUNDED BY THIS COURT IN CALLAN V. WILSON,
127 U.S. 540 (1888).  (FN5)  THE COURT, "CONCEDING THAT THERE IS A
CLASS OF PETTY OR MINOR OFFENCES, NOT USUALLY EMBRACED IN PUBLIC
CRIMINAL STATUTES, AND NOT OF THE CLASS OR GRADE TRIABLE AT COMMON LAW
BY A JURY," HELD THAT THE OFFENSE CHARGED - CONSPIRACY - WAS NOT AMONG
THEM.  ID., AT 555.  IN NATAL V. LOUISIANA, 139 U.S. 621, THE COURT FOR
THE FIRST TIME HELD A PARTICULAR OFFENSE "PETTY."  THIS WAS A LOCAL
ORDINANCE WHICH FORBADE THE OPERATION OF A PRIVATE MARKET WITHIN SIX
SQUARES OF A PUBLIC MARKET.  THE MAXIMUM PENALTY WAS A $25 FINE (OR 30
DAYS' IMPRISONMENT IN THE EVENT THE FINE WAS NOT PAID).  (FN6)  AND IN
SCHICK V. UNITED STATES, 195 U.S. 65, THE COURT HELD THAT THE KNOWING
PURCHASE OF UNSTAMPED OLEOMARGARINE WAS A PETTY OFFENSE.  THE MAXIMUM
PENALTY WAS A $50 FINE. 

NONE OF THESE CASES PROVIDES MUCH GUIDANCE FOR THOSE SEEKING TO
LOCATE THE LINE OF DEMARCATION BETWEEN PETTY OFFENSES AND THOSE MORE
SERIOUS TRANSGRESSIONS FOR WHICH A JURY TRIAL IS REQUIRED.  IN DISTRICT
OF COLUMBIA V. COLTS, 282 U.S. 63, THE COURT ATTEMPTED TO SET OUT SOME
GENERAL CONSIDERATIONS.  THE OFFENSE WAS RECKLESS DRIVING AT AN
EXCESSIVE SPEED; THE MAXIMUM PUNISHMENT UNDER THE STATUTE (FOR A FIRST
OFFENDER) WAS A $100 FINE AND 30 DAYS IN JAIL.  ALTHOUGH THE PENALTY
WAS LIGHT, THE COURT THOUGHT THE OFFENSE TOO SERIOUS TO BE REGARDED AS
"PETTY": 

"WHETHER A GIVEN OFFENSE IS TO BE CLASSED AS A CRIME, SO AS TO
REQUIRE A JURY TRIAL, OR AS A PETTY OFFENSE, TRIABLE SUMMARILY WITHOUT
A JURY, DEPENDS PRIMARILY UPON THE NATURE OF THE OFFENSE.  THE OFFENSE
HERE CHARGED IS NOT MERELY MALUM PROHIBITUM, BUT IN ITS VERY NATURE IS
MALUM IN SE.  IT WAS AN INDICTABLE OFFENSE AT COMMON LAW  ...  WHEN
HORSES, INSTEAD OF GASOLINE, CONSTITUTED THE MOTIVE POWER  ...  ." 
ID., AT 73. 

THE MOST RECENT CASE IS DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S.
617, WHERE THE OFFENSE CHARGED WAS THAT OF ENGAGING IN A PARTICULAR
BUSINESS WITHOUT A LICENSE.  THE MAXIMUM PENALTY WAS $300 OR 90 DAYS IN
JAIL.  CLAWANS WAS GIVEN A $300 FINE BUT ONLY 60 DAYS IN JAIL.  THE
COURT HELD THAT THIS WAS A "PETTY OFFENSE" AND THUS THAT NO JURY WAS
REQUIRED.  THE OFFENSE, THE COURT NOTED, WAS NOT A CRIME AT COMMON LAW;
AND TODAY IT IS ONLY AN INFRINGEMENT OF LOCAL POLICE REGULATIONS, THE
OFFENSE BEING "RELATIVELY INOFFENSIVE."  ID., AT 625.  BUT, THE COURT
ADDED, "THE SEVERITY OF THE PENALTY IS AN ELEMENT TO BE CONSIDERED." 
IBID.  LOOKING TO THE MAXIMUM PENALTY WHICH MIGHT BE IMPOSED - 90 DAYS
IN PRISON - THE COURT CONCLUDED THAT THIS WAS NOT SO SEVERE AS TO TAKE
THE OFFENSE OUT OF THE CATEGORY OF "PETTY."  NOTING THAT IN ENGLAND,
AND EVEN DURING THIS COUNTRY'S COLONIAL PERIOD, SENTENCES LONGER THAN
90 DAYS WERE IMPOSED WITHOUT A JURY TRIAL, THE COURT ASSUMED THAT
PENALTIES THEN THOUGHT MILD "MAY COME TO BE REGARDED AS SO HARSH AS TO
CALL FOR THE JURY TRIAL."  ID., AT 627.   THE COURT ADDED: 

"WE MAY DOUBT WHETHER SUMMARY TRIAL WITH PUNISHMENT OF MORE THAN SIX
MONTHS' IMPRISONMENT, PRESCRIBED BY SOME PRE-REVOLUTIONARY STATUTES, IS
ADMISSIBLE WITHOUT CONCLUDING THAT A PENALTY OF NINETY DAYS IS TOO
MUCH.  DOUBTS MUST BE RESOLVED, NOT SUBJECTIVELY BY RECOURSE OF THE
JUDGE TO HIS OWN SYMPATHY AND EMOTIONS, BUT BY OBJECTIVE STANDARDS SUCH
AS MAY BE OBSERVED IN THE LAWS AND PRACTICES OF THE COMMUNITY TAKEN AS
A GAUGE OF ITS SOCIAL AND ETHICAL JUDGMENTS."  ID., AT 627-728. 

RESOLUTION OF THE QUESTION OF WHETHER A PARTICULAR OFFENSE IS OR IS
NOT "PETTY" CANNOT BE HAD BY CONFINING THE INQUIRY TO THE LENGTH OF
SENTENCE ACTUALLY IMPOSED.  THAT IS ONLY ONE OF MANY FACTORS.   AS THE
ANALYSIS OF THE COURT IN CLAWANS DEMONSTRATES, THE CHARACTER OF THE
OFFENSE ITSELF MUST BE CONSIDERED.  THE RELEVANCE OF THE MAXIMUM
POSSIBLE SENTENCE IS THAT IT MAY BE "TAKEN AS A GAUGE OF THE SOCIAL AND
ETHICAL JUDGMENTS" OF THE COMMUNITY.  ID., AT 628.  HAD THE POTENTIAL
SENTENCE IN THE CLAWANS CASE BEEN OF CONSIDERABLE LENGTH, THE COURT
PRESUMABLY WOULD HAVE CONCLUDED THAT THE LEGISLATIVE JUDGMENT - THAT
LONG SENTENCES WERE APPROPRIATE FOR VIOLATIONS OF THE LICENSING LAW -
PRECLUDED TREATING THE OFFENSE AS "PETTY."  BUT THE CONVERSE IS NOT
ALWAYS TRUE:  AN OFFENSE THE PENALTY FOR WHICH IS RELATIVELY LIGHT IS
NOT NECESSARILY "PETTY," AS DISTRICT OF COLUMBIA V. COLTS, SUPRA,
DEMONSTRATES. 

THE PRINCIPAL INQUIRY, THEN, RELATES TO THE CHARACTER AND GRAVITY OF
THE OFFENSE ITSELF.  WAS IT AN INDICTABLE OFFENSE AT COMMON LAW?  IS IT
MALUM IN SE OR MALUM PROHIBITUM?  WHAT STIGMA ATTACHES TO THOSE
CONVICTED OF COMMITTING THE OFFENSE?  (FN7)  THE BARNETT DICTUM, THOUGH
ACCEPTING THE RELEVANCE OF THE PETTY OFFENSE CASES, ERRS IN ASSUMING
THAT THESE CONSIDERATIONS ARE IRRELEVANT.  (FN8)    THE DICTUM IN
BARNETT ERRS, FURTHER, BECAUSE IT LOOKS TO THE LENGTH OF SENTENCE
ACTUALLY IMPOSED, RATHER THAN THE POTENTIAL SENTENCE.  THE RELEVANCE OF
THE SENTENCE, AS WE HAVE SEEN, IS THAT IT SHEDS LIGHT ON THE
SERIOUSNESS WITH WHICH THE COMMUNITY AND THE LEGISLATURE REGARD THE
OFFENSE.  REFERENCE TO THE SENTENCE ACTUALLY IMPOSED IN A PARTICULAR
CASE CANNOT SERVE THIS PURPOSE.  IT IS PRESENTLY IMPOSSIBLE TO REFER TO
A "MAXIMUM" SENTENCE FOR MOST CONTEMPTS, FOR THERE IS NONE; CONGRESS
HAS LEFT SUCH MATTERS TO THE DISCRETION OF THE FEDERAL COURTS.  (FN9) 

THE OFFENSE OF CRIMINAL CONTEMPT IS, OF COURSE, REALLY SEVERAL DIVERSE
OFFENSES ALL BEARING A COMMON NAME.  SOME INVOLVE CONDUCT THAT VIOLATES
COURTROOM DECORUM.  AT TIMES THE OFFENDER HAS INSULTED THE COURT FROM A
DISTANCE.  OTHERS ARE INSTANCES WHERE AN ADAMANT WITNESS REFUSES TO
TESTIFY.  STILL OTHERS, LIKE THE PRESENT CASE, INVOLVE DISOBEDIENCE OF
A COURT ORDER DIRECTING PARTIES TO CEASE AND DESIST FROM CERTAIN
CONDUCT PENDING AN APPEAL.  WHILE SOME CONTEMPTS ARE FAIRLY MINOR
AFFAIRS, OTHERS ARE SERIOUS INDEED, DESERVING LENGTHY SENTENCES.  SO
LONG AS ALL CONTEMPTS ARE LUMPED TOGETHER, THE SERIOUS NATURE OF SOME
CONTEMPTS AND THE SEVERITY OF THE SENTENCES COMMONLY IMPOSED IN SUCH
CASES CONTROL THE LEGAL CHARACTER OF ALL CONTEMPTS.  NONE CAN BE
REGARDED AS PETTY.  DISTINCTIONS BETWEEN CONTEMPTS WHICH, AFTER THE
FACT, DRAW A SIX-MONTH OR GREATER SENTENCE AND THOSE WHICH DO NOT ARE
BASED ON CONSTITUTIONALLY IRRELEVANT FACTORS AND SEEM IRRELEVANT TO THE
ANALYSIS. 

                 III. 

THE CONSTITUTION, AS I SEE IT, THUS REQUIRES A TRIAL BY JURY FOR THE
CRIME OF CRIMINAL CONTEMPT, AS IT DOES FOR ALL OTHER CRIMES.  SHOULD
CONGRESS WISH IT, AN EXCEPTION COULD BE MADE FOR ANY DESIGNATED CLASS
OF CONTEMPTS WHICH, ALL FACTORS CONSIDERED, COULD TRULY BE
CHARACTERIZED AS "PETTY."  (FN10)  CONGRESS HAS NOT ATTEMPTED TO
ISOLATE AND DEFINE "PETTY CONTEMPTS."  DO WE HAVE POWER TO UNDERTAKE
THE TASK OF DEFINING A CLASS OF PETTY CONTEMPTS AND TO FIX MAXIMUM
PUNISHMENTS WHICH MIGHT BE IMPOSED? 

IT WOULD BE A PROJECT MORE THAN FAINTLY REMINISCENT OF DECLARING
"COMMON-LAW CRIMES," A POWER WHICH HAS BEEN DENIED THE FEDERAL
JUDICIARY SINCE THE BEGINNING OF OUR REPUBLIC.  SEE UNITED STATES V.
HUDSON, 7 CRANCH 32; UNITED STATES V. GRADWELL, 243 U.S. 476, 485.  IT
IS, OF COURSE, TRUE THAT IN THE HUDSON CASE ITSELF, THE COURT - WHILE
HOLDING THE JUDICIARY POWERLESS TO EXERCISE A COMMON-LAW CRIMINAL
JURISDICTION - SET CONTEMPT APART FROM THIS GENERAL RESTRICTION: 

"CERTAIN IMPLIED POWERS MUST NECESSARILY RESULT TO OUR COURTS OF
JUSTICE FROM THE NATURE OF THEIR INSTITUTION.  BUT JURISDICTION OF
CRIMES AGAINST THE STATE IS NOT AMONG THOSE POWERS.  TO FINE FOR
CONTEMPT - IMPRISON FOR CONTUMACY - ENFORCE THE OBSERVANCE OF ORDER,
&C. ARE POWERS WHICH CANNOT BE DISPENSED WITH IN A COURT, BECAUSE THEY
ARE NECESSARY TO THE EXERCISE OF ALL OTHERS:  AND SO FAR OUR COURTS NO
DOUBT POSSESS POWERS NOT IMMEDIATELY DERIVED FROM STATUTE; BUT ALL
EXERCISE OF CRIMINAL JURISDICTION IN COMMON LAW CASES WE ARE OF OPINION
IS NOT WITHIN THEIR IMPLIED POWERS."  ID., AT 34.   (FN11) 

THE PREVAILING OPINION TODAY DOES NOT TAKE THAT COURSE.  IT DOES NOT
UNDERTAKE TO CLASSIFY DIFFERENT KINDS OF CONTEMPT IN LIGHT OF THE
NATURE AND GRAVITY OF THE OFFENSE.  IT PERMITS THE IMPOSITION OF
PUNISHMENT WITHOUT THE BENEFIT OF A TRIAL BY JURY IN ALL CONTEMPT CASES
WHERE THE PUNISHMENT DOES NOT EXCEED SIX MONTHS.  FOR THE REASONS
STATED, I BELEIVE THAT COURSE IS WRONG - DANGEROUSLY WRONG.  UNTIL THE
TIME WHEN PETTY CRIMINAL CONTEMPTS ARE PROPERLY DEFINED AND ISOLATED
FROM OTHER SPECIES OF CONTEMPTS, I SEE NO ESCAPE FROM THE CONCLUSION
THAT PUNISHMENT FOR ALL MANNER OF CRIMINAL CONTEMPTS CAN
CONSTITUTIONALLY BE IMPOSED ONLY AFTER A TRIAL BY JURY. 

FN1  ALTHOUGH THE SIXTH AMENDMENT USES SOMEWHAT DIFFERENT LANGUAGE
THAN THAT OF ART. III, SEC 2, THERE IS NO REASON TO BELIEVE THAT THE
SIXTH AMENDMENT WAS INTENDED TO WORK A CHANGE IN THE SCOPE OF THE JURY
TRIAL REQUIREMENT OF ARTICLE III.  SEE FRANKFURTER & CORCORAN, PETTY
FEDERAL OFFENSES AND THE CONSTITUTIONAL GUARANTY OF TRIAL BY JURY, 39
HARV. L. REV. 917, 968-975 (1926). 

FN2  GREEN V. UNITED STATES, SUPRA, AT 207-208 AND N. 21 (DISSENTING
OPINION); UNITED STATES V. BARNETT, SUPRA, AT 740-749 (DISSENTING
OPINION).  ALTHOUGH JUSTICE GOLDBERG'S USE OF HISTORICAL MATERIALS IN
BARNETT HAS BEEN SUBJECTED TO SOME CRITICISM (SEE, E.G., TEFFT, UNITED
STATES V. BARNETT:  "TWAS A FAMOUS VICTORY," SUPREME COURT REVIEW 123,
132-133 (1964); BRIEF FOR THE UNITED STATES 27-58 AND APPENDIX, PASSIM,
HARRIS V. UNITED STATES, 382 U.S. 162), SEVERE PENALTIES IN CONTEMPT
CASES IN THE EARLY DAYS APPEAR, NONETHELESS, TO HAVE BEEN THE
EXCEPTION. 

FN3  SEE, E.G., BROWN V. UNITED STATES, 359 U.S. 41 (15 MONTHS);
PIEMONTE V. UNITED STATES, 367 U.S. 556 (18 MONTHS); REINA V. UNITED
STATES, 364 U.S. 507 (TWO YEARS); GREEN V. UNITED STATES, SUPRA (THREE
YEARS); COLLINS V. UNITED STATES, 269 F.2D 745 (THREE YEARS); UNITED
STATES V. THOMPSON, 214 F.2D 545 (FOUR YEARS). 

IN THE FISCAL YEAR ENDING JUNE 30, 1962, A TOTAL OF 21 PEOPLE
CONVICTED BY A FEDERAL COURT OF CONTEMPT WERE RECEIVED BY THE FEDERAL
PRISON SYSTEM.  OF THESE, THE AVERAGE SENTENCE WAS 6.4 MONTHS. 
SENTENCES OF EIGHT OF THESE PRISONERS EXCEEDED SIX MONTHS; THREE
PRISONERS HAD SENTENCES EXCEEDING ONE YEAR, AND OF THESE TWO PRISONERS
HAD SENTENCES OF TWO YEARS OR MORE.  THE FEDERAL PRISON SYSTEM - 1964,
HEARING BEFORE THE SUBCOMMITTEE ON NATIONAL PENITENTIARIES OF THE
SENATE COMMITTEE ON THE JUDICIARY, 88TH CONG., 2D SESS. (JAN. 22,
1964), P. 10. 

FN4  THE COURT PUT THE MATTER THUS: 

"HOWEVER, OUR CASES HAVE INDICATED THAT, IRRESPECTIVE OF THE SEVERITY
OF THE OFFENSE, THE SEVERITY OF THE PENALTY IMPOSED, A MATTER NOT
RAISED IN THIS CERTIFICATION, MIGHT ENTITLE A DEFENDANT TO THE BENEFIT
OF A JURY TRIAL  ...  .  IN VIEW OF THE IMPENDING CONTEMPT HEARING,
EFFECTIVE ADMINISTRATION OF JUSTICE REQUIRES THAT THIS DICTUM BE ADDED:
SOME MEMBERS OF THE COURT ARE OF THE VIEW THAT, WITHOUT REGARD TO THE
SERIOUSNESS OF THE OFFENSE, PUNISHMENT BY SUMMARY TRIAL WITHOUT A JURY
WOULD BE CONSTITUTIONALLY LIMITED TO THAT PENALTY PROVIDED FOR PETTY
OFFENSES."  SUPRA, AT 695, N. 12. 

FN5  THE PETTY OFFENSE EXCEPTION IS TREATED IN FRANKFURTER &
CORCORAN, PETTY FEDERAL OFFENSES AND THE CONSTITUTIONAL GUARANTY OF
TRIAL BY JURY, 39 HARV. L. REV. 917 (1926).  THEIR CONCLUSION, LONG
ACCEPTED IN THE DECISIONS OF THIS COURT, THAT JURY TRIALS ARE NOT
REQUIRED IN SUCH CASES IS CHALLENGED IN KAYE, PETTY OFFENDERS HAVE NO
PEERS, 26 CHI.  L. REV. 245 (1959). 

FN6  THIS WAS, OF COURSE, NOT A CASE TRIED IN THE FEDERAL COURTS. 
BUT THE COURT DID NOT DECIDE THE CASE ON THE GROUND THAT THE
CONSTITUTION DOES NOT REQUIRE THE STATES TO AFFORD JURY TRIALS IN
CRIMINAL CASES; IT TOOK, INSTEAD, THE NARROWER GROUND THAT THIS WAS A
PETTY OFFENSE. 

FN7  "BROADLY SPEAKING, ACTS WERE DEALT WITH SUMMARILY WHICH DID NOT
OFFEND TOO DEEPLY THE MORAL PURPOSES OF THE COMMUNITY, WHICH WERE NOT
TOO CLOSE TO SOCIETY'S DANGER, AND WERE STIGMATIZED BY PUNISHMENT
RELATIVELY LIGHT."  FRANKFURTER & CORCORAN, SUPRA, AT 980-981. 

FN8  "SOME MEMBERS OF THE COURT ARE OF THE VIEW THAT, WITHOUT REGARD
TO THE SERIOUSNESS OF THE OFFENSE, PUNISHMENT BY SUMMARY TRIAL WITHOUT
A JURY WOULD BE CONSTITUTIONALLY LIMITED TO THAT PENALTY PROVIDED FOR
PETTY OFFENSES."  376 U.S., AT 695.  TO THE EXTENT THAT THIS MERELY
REFLECTS THE CLAWANS PRINCIPLE THAT NO OFFENSE WHICH CARRIES A
SUBSTANTIAL PENALTY CAN BE "PETTY," THE COURT WAS CORRECT.  YET, QUITE
APART FROM THE QUESTION OF PUNISHMENT, A JURY TRIAL IS CONSTITUTIONALLY
REQUIRED WHERE THE OFFENSE IS OF A SERIOUS CHARACTER. 

FN9  18 U.S.C. SEC 402 (1964 ED.). 

FN10  CONGRESS MIGHT, FOR EXAMPLE, DETERMINE THAT BREACHES OF COURT
DECORUM ARE GENERALLY OF SO MINOR A NATURE AS TO RENDER IT ADVISABLE TO
FORGO THE POSSIBILITY OF ANY EXCEPT MINOR PENALTIES IN FAVOR OF
MAINTAINING PROCEDURES FOR QUICK PUNISHMENT (SEE FED. RULE CRIM. PROC.
42(A); HARRIS V. UNITED STATES, 382 U.S. 162) WHICH ARE SAID TO BE
NECESSARY TO ACHIEVE "SUMMARY VINDICATION OF THE COURT'S DIGNITY AND
AUTHORITY."  COOKE V. UNITED STATES, 267 U.S. 517, 534.  THIS MIGHT BE
A CLASS OF "PETTY CONTEMPTS" FOR WHICH THE MAXIMUM PENALTY WOULD BE
SLIGHT AND FOR WHICH TRIAL BY JURY WOULD NOT BE REQUIRED.  QUAERE,
WHETHER IMPOSITION OF A PRISON TERM WOULD EVER BE CONSISTENT WITH A
"PETTY" OFFENSE.  CF. KAYE, PETTY OFFENDERS HAVE NO PEERS, 26 CHI.  L.
REV. 245, 275-277 (1959). 

FN11  AND SEE 18 U.S.C. SEC 402, WHICH ALLOWS "ALL OTHER CASES OF
CONTEMPT NOT SPECIFICALLY EMBRACED IN THIS SECTION TO BE PUNISHED IN
CONFORMITY TO THE PREVAILING USAGES AT LAW." 
..END :






UNITED STATES V. UTAH CONSTR. CO. 384 U.S. 394 


NO. 440.  ARGUED MARCH 23-24, 1966.  - DECIDED JUNE 6, 1966.  - 168 CT.
CL. 522, 339 F.2D 606, AFFIRMED IN PART AND REVERSED IN PART. 


THE CONTRACT WHEREBY RESPONDENT AGREED TO CONSTRUCT A FACILITY FOR THE
ATOMIC ENERGY COMMISSION CONTAINED A DISPUTES CLAUSE WHICH PROVIDED
THAT "ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THIS
CONTRACT" SHOULD BE DECIDED BY THE CONTRACTING OFFICER SUBJECT TO
WRITTEN APPEAL TO THE HEAD OF THE DEPARTMENT, "WHOSE DECISION SHALL BE
FINAL AND CONCLUSIVE UPON THE PARTIES THERETO."  AFTER COMPLETING THE
PROJECT RESPONDENT FILED CLAIMS SEEKING ADDITIONAL COMPENSATION AND
TIME EXTENSIONS PURSUANT TO THE "CHANGED CONDITIONS" CLAUSE OF THE
CONTRACT.  THE ADVISORY BOARD OF CONTRACT APPEALS, AFTER HEARINGS, (1)
DENIED THE REQUEST FOR TIME EXTENSION AND DAMAGES FOR THE "PIER
DRILLING" CLAIM, FINDING THAT INCREASED COSTS WERE INCURRED BY A
SUBCONTRACTOR RATHER THAN RESPONDENT AND THAT THE DELAY WAS CAUSED BY A
DISPUTE OVER THE QUALITY OF GOVERNMENT-SUPPLIED CONCRETE AGGREGATE,
WHICH WAS NOT BEFORE THE BOARD FOR ADJUDICATION; (2) DENIED ADDITIONAL
COMPENSATION BUT AUTHORIZED A TIME EXTENSION FOR THE "SHIELD WINDOW"
CLAIM; AND (3) RULED THAT THE APPEAL FROM THE CONTRACTING OFFICER'S
REJECTION OF THE CLAIM FOR ADDITIONAL COMPENSATION FOR POOR QUALITY
CONCRETE AGGREGATE WAS UNTIMELY, REMARKING HOWEVER THAT IF THE CLAIM
WAS ONE FOR UNLIQUIDATED DAMAGES FOR BREACH OF WARRANTY OR FOR DELAY,
IT HAD NO JURISDICTION TO AWARD MONETARY RELIEF.  RESPONDENT BROUGHT
THIS ACTION IN THE COURT OF CLAIMS FOR BREACH OF CONTRACT, ASSERTING
GOVERNMENT-CAUSED UNREASONABLE DELAY.  THAT COURT HELD THAT THE PIER
DRILLING AND SHIELD WINDOW CLAIMS WERE PRIMARILY FOR BREACH OF CONTRACT
AND ORDERED A TRIAL DE NOVO ON THE FACTUAL ISSUES IN THOSE CLAIMS.  ON
THE CONCRETE AGGREGATE CLAIM THE COURT RULED THAT IF THE CLAIM WAS ONE
FOR BREACH OF CONTRACT RATHER THAN ONE "ARISING UNDER" THE CONTRACT,
THE FACTUAL ISSUES SHOULD BE RESOLVED IN A JUDICIAL TRIAL.  HELD: 

1.  THE GOVERNMENT CONTRACT "DISPUTES CLAUSE" DOES NOT EXTEND TO
BREACH OF CONTRACT CLAIMS NOT REDRESSABLE UNDER OTHER CLAUSES OF THE
CONTRACT.  PP. 403-418. 

(A)  IN DECISIONS BOTH BEFORE AND AFTER THE EXECUTION OF THIS
CONTRACT THE COURT OF CLAIMS HAD ESTABLISHED THAT THE JURISDICTION OF
BOARDS OF CONTRACT APPEALS WAS LIMITED TO CLAIMS UNDER SPECIFIC
CONTRACT PROVISIONS AUTHORIZING RELIEF AND THAT CONTRACTORS NEED NOT
PROCESS PURE BREACH OF CONTRACT CLAIMS THROUGH THE DISPUTES MACHINERY
BEFORE FILING SUIT.  PP. 405-406. 

(B)  IT WAS THE SETTLED PRACTICE OF THE BOARDS OF CONTRACT APPEALS AT
THE TIME OF EXECUTION OF THIS CONTRACT TO REFUSE TO CONSIDER PURE
BREACH OF CONTRACT CLAIMS.  P. 406. 

(C)  WHILE SOME BOARDS POSSESS AUTHORITY TO MAKE FACTUAL FINDINGS IN
CASES WHERE THEY HAVE NO JURISDICTION TO GRANT RELIEF, SUCH FINDINGS
HAVE NO BINDING EFFECT.  PP. 407-411. 

(D)  CONGRESS AND THE MILITARY PROCUREMENT AGENCIES RECOGNIZE THE
JURISDICTIONAL LIMITATIONS OF THE BOARDS BY ENACTING ALTERNATIVE
ADMINISTRATIVE REMEDIES AND BY FASHIONING ADDITIONAL CONTRACT
ADJUSTMENT PROVISIONS TO DEAL WITH CLAIMS FOR DELAY DAMAGES SUCH AS
PRESENTED HERE.  PP. 413-417. 

(E)  THE DEVELOPMENT OF THESE ADDITIONAL CONTRACTUAL PROVISIONS
ILLUSTRATES NOT ONLY ADMINISTRATIVE ACCEPTANCE OF THE NARROW
INTERPRETATION OF THE DISPUTES CLAUSE BUT ALSO INDICATES THE LACK OF
ANY COMPELLING REASON TO OVERTURN THAT INTERPRETATION NOW.  PP. 417
418. 

2.  ALTHOUGH THE BOARD HERE LACKED AUTHORITY TO CONSIDER DELAY
DAMAGES UNDER THE PIER DRILLING AND SHIELD WINDOW CLAIMS, IT DID HAVE
AUTHORITY TO CONSIDER REQUESTS FOR TIME EXTENSIONS UNDER SPECIFIC
CONTRACT PROVISIONS, AND THESE REQUESTS CALLED FOR FINDINGS OF FACT,
WHICH, IF THEY MEET THE WUNDERICH ACT STANDARDS, ARE CONCLUSIVE ON THE
PARTIES NOT ONLY UNDER THE CONTRACT PROVISIONS BUT ALSO IN THE COURT
ACTION FOR BREACH OF CONTRACT AND DELAY DAMAGES.  PP.  418-423. 

(A)  BOTH THE DISPUTES CLAUSE AND THE WUNDERLICH ACT PROVIDE THAT
ADMINISTRATIVE FINDINGS ON FACTUAL ISSUES RELEVANT TO QUESTIONS ARISING
UNDER THE CONTRACT SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES.  P.
419. 

(B)  A PARTY CANNOT COMPEL RELITIGATION OF A MATTER ONCE DECIDED BY
MERELY COUCHING A CLAIM IN BREACH OF CONTRACT LANGUAGE.  P. 419. 

(C)  UNITED STATES V. CARLO BIANCHI & CO., 373 U.S. 709, HELD THAT
ADMINISTRATIVE FINDINGS IN THE COURSE OF ADJUDICATING CLAIMS WITHIN THE
DISPUTES CLAUSE WERE NOT TO BE RETRIED IN THE COURT OF CLAIMS BUT WERE
ONLY TO BE REVIEWED ON THE ADMINISTRATIVE RECORD.  P. 420. 

(D)  THIS RESULT IS IN ACCORD WITH THE PRINCIPLES OF COLLATERAL
ESTOPPEL.  PP. 421-422. 

(E)  SINCE THE BOARD WAS ACTING IN A JUDICIAL CAPACITY WHEN IT
CONSIDERED THESE CLAIMS, THE FACTUAL DISPUTES WERE RELEVANT TO THE
ISSUES PROPERLY BEFORE IT, AND BOTH PARTIES HAD AN OPPORTUNITY TO ARGUE
THEIR VERSION OF THE FACTS AND TO SEEK COURT REVIEW OF ADVERSE
FINDINGS, THERE IS NO NEED OR JUSTIFICATION FOR A SECOND EVIDENTIARY
HEARING ON THESE MATTERS.  P. 422. 

UNITED STATES V. UTAH CONSTRUCTION & MINING CO. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE TYPICAL CONSTRUCTION CONTRACT BETWEEN THE GOVERNMENT AND A
PRIVATE CONTRACTOR PROVIDES FOR AN EQUITABLE ADJUSTMENT OF THE CONTRACT
PRICE OR AN APPROPRIATE EXTENSION OF TIME, OR BOTH, IF THE GOVERNMENT
ORDERS PERMITTED CHANGES IN THE WORK OR IF THE CONTRACTOR ENCOUNTERS
CHANGED CONDITIONS DIFFERING MATERIALLY FROM THOSE ORDINARILY
ANTICIPATED.  LIKEWISE, IT IS PROVIDED THAT THE CONTRACT SHALL NOT BE
TERMINATED NOR THE CONTRACTOR CHARGED WITH LIQUIDATED DAMAGES IF HE IS
DELAYED IN COMPLETING THE WORK BY UNFORESEEABLE CONDITIONS BEYOND HIS
CONTROL, INCLUDING ACTS OF THE GOVERNMENT.  SEE ARMED SERVICES
PROCUREMENT REGULATIONS (HEREINAFTER ASPR), 32 CFR SECS 7.602-3 TO
7.602-5; ATOMIC ENERGY COMMISSION PROCUREMENT REGULATIONS (HEREINAFTER
AECPR), 41 CFR SEC 9-7.5005-2.  (FN1)  ARTICLE 15 PROVIDES THAT "ALL
DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THIS CONTRACT"
SHALL BE DECIDED BY THE CONTRACTING OFFICER SUBJECT TO WRITTEN APPEAL
TO THE HEAD OF THE DEPARTMENT, "WHOSE DECISION SHALL BE FINAL AND
CONCLUSIVE UPON THE PARTIES THERETO."  ASPR, 32 CFR SEC 7.602-6; AECPR,
41 CFR SEC 9-7.5004-3.  (FN2)  APPEALS FROM THE DECISION OF THE
CONTRACTING OFFICER ARE CHARACTERISTICALLY HEARD BY A BOARD OR
COMMITTEE DESIGNATED BY THE HEAD OF THE CONTRACTING DEPARTMENT OR
AGENCY.  SHOULD THE CONTRACTOR BE DISSATISFIED WITH THE ADMINISTRATIVE
DECISION AND BRING A TUCKER ACT SUIT FOR BREACH OF CONTRACT IN THE
COURT OF CLAIMS OR THE DISTRICT COURT, 28 U.S.C. SEC 1346(A)(2) (1964
ED.), THE FINALITY ACCORDED ADMINISTRATIVE FACT FINDING BY THE DISPUTES
CLAUSE IS LIMITED BY THE PROVISIONS OF THE WUNDERLICH ACT OF 1954 WHICH
DIRECTS THAT SUCH A DECISION "SHALL BE FINAL AND CONCLUSIVE UNLESS THE
SAME IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS
AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE."  (FN3)  WITH RESPECT TO THIS STATUTORY PROVISION WE HELD IN
UNITED STATES V. CARLO BIANCHI & CO., 373 U.S. 709, THAT WHERE THE
EVIDENTIARY BASIS FOR THE ADMINISTRATIVE DECISION IS CHALLENGED IN A
BREACH OF CONTRACT SUIT, CONGRESS DID NOT INTEND A DE NOVO
DETERMINATION OF THE FACTS BY THE COURT, WHICH MUST CONFINE ITS REVIEW
TO THE ADMINISTRATIVE RECORD MADE AT THE TIME OF THE ADMINISTRATIVE
APPEAL. 

THE ISSUES IN THIS CASE INVOLVE THE COVERAGE OF THE DISPUTES CLAUSE
AND A RECURRING PROBLEM CONCERNING THE APPLICATION OF BIANCHI TO
CERTAIN FINDINGS MADE DURING THE ADMINISTRATIVE PROCESS.  WE GRANTED
CERTIORARI BECAUSE OF THE IMPORTANCE OF THESE QUESTIONS IN THE
ADMINISTRATION OF GOVERNMENT CONTRACTS.  382 U.S. 900. 

                        I. 

THE CONTRACTOR, UTAH CONSTRUCTION & MINING COMPANY, EXECUTED A
CONTRACT IN MARCH 1953 TO BUILD A FACILITY FOR THE ATOMIC ENERGY
COMMISSION.  AFTER COMPLETING THE PROJECT IN JANUARY 1955, IT FILED
WITH THE CONTRACTING OFFICER A "PIER DRILLING" CLAIM, WHICH ASKED FOR
AN ADJUSTMENT IN THE CONTRACT PRICE AND AN EXTENSION OF TIME UNDER
ARTICLE 4, THE "CHANGED CONDITIONS" CLAUSE.  THE CONTRACTOR ASSERTED IT
HAD ENCOUNTERED FLOAT ROCK IN THE COURSE FOR EXCAVATING AND DRILLING
WHICH, AMONG OTHER THINGS, HAD INCREASED ITS COSTS AND DELAYED THE
WORK.  CONTRARY TO THE DECISION OF THE CONTRACTING OFFICER, THE
ADVISORY BOARD OF CONTRACT APPEALS FOUND THE FLOAT ROCK TO BE A CHANGED
CONDITION WITHIN THE MEANING OF ARTICLE 4.  BUT THE BOARD NEVERTHELESS
DENIED THE REQUEST FOR A TIME EXTENSION AND FOR DELAY DAMAGES.  IT
FOUND THAT THE INCREASED COSTS HAD BEEN INCURRED BY A SUBCONTRACTOR
RATHER THAN THE CONTRACTOR AND THAT THE DELAY EXPERIENCED BY THE
CONTRACTOR WAS NOT CAUSED BY THE FLOAT ROCK BUT BY A DISPUTE OVER THE
QUALITY OF CONCRETE AGGREGATE FURNISHED BY THE GOVERNMENT, A DISPUTE
NOT THEN BEFORE THE BOARD FOR ADJUDICATION. 

ANOTHER CLAIM FILED BY THE CONTRACTOR, ITS "SHIELD WINDOW" CLAIM,
ASSERTED THE EXISTENCE OF CHANGED CONDITIONS CALLING FOR RELIEF UNDER
ARTICLE 4 BY REASON OF INADEQUATE SPECIFICATIONS AND DRAWINGS FURNISHED
BY THE GOVERNMENT.  ADDITIONAL COMPENSATION AND ADDITIONAL TIME WERE
DEMANDED.  THE BOARD FOUND THERE WAS NO CHANGED CONDITION WITHIN
ARTICLE 4 AND DENIED ADDITIONAL COMPENSATION.  HOWEVER, IT FOUND THE
DELAY INVOLVED TO BE THE RESULT OF DIFFICULTIES INHERENT IN A NEW FIELD
OF CONSTRUCTION RATHER THAN THE FAULT OF EITHER PARTY, AND IT THEREFORE
AUTHORIZED A TIME EXTENSION UNDER ARTICLE 9. 

IN THE CONTRACTOR'S SUBSEQUENT SUIT FOR BREACH OF CONTRACT, THE COURT
OF CLAIMS HELD BOTH THE PIER DRILLING CLAIM AND THE SHIELD WINDOW CLAIM
TO BE CLAIMS FOR DELAY DAMAGES ALLEGING A BREACH OF CONTRACT BY REASON
OF THE GOVERNMENT'S UNREASONABLE DELAY.  IN ITS VIEW, SUCH BREACH OF
CONTRACT CLAIMS WERE NOT WITHIN THE DISPUTES CLAUSE AND THE
ADMINISTRATIVE FINDINGS REGARDING THE RESPONSIBILITY FOR THE DELAYS
WERE SUBJECT TO DE NOVO DETERMINATION IN THE COURT OF CLAIMS.  THE
DISPUTES CLAUSE LIMITED THE AUTHORITY OF THE BOARD TO "'DISPUTES
CONCERNING QUESTIONS OF FACT ARISING UNDER THIS CONTRACT.'"  THAT MEANT
"A DISPUTE OVER THE RIGHTS OF THE PARTIES GIVEN BY THE CONTRACT; IT DID
NOT MEAN A DISPUTE OVER A VIOLATION OF THE CONTRACT."  UTAH CONSTR.  &
MINING CO. V. UNITED STATES, 168 CT. CL. 522, 527, 339 F.2D 606, 609
610 (1964).  BECAUSE THE ADVISORY BOARD OF CONTRACT APPEALS WAS CLEARLY
AUTHORIZED TO DETERMINE THE CAUSE OF THE DELAY IN GRANTING OR DENYING
THE REQUEST FOR AN EXTENSION OF TIME UNDER ARTICLES 4 AND 9, THE
DISSENTING JUDGE THOUGHT THE FINDINGS WERE REVIEWABLE ONLY ON THE
ADMINISTRATIVE RECORD AND THEREFORE OBJECTED TO THE DE NOVO TRIAL
ORDERED BY THE MAJORITY.  168 CT. CL., AT 537, 339 F.2D AT 615 (DAVIS,
J.). 

THE MEANING OF THE COURT OF CLAIMS' DISTINCTION BETWEEN DISPUTES OVER
RIGHTS GIVEN BY THE CONTRACT AND DISPUTES OVER A VIOLATION OF THE
CONTRACT HAS BEEN CLARIFIED IN A SUBSEQUENT DECISION HOLDING THAT TO
THE EXTENT COMPLETE RELIEF IS AVAILABLE UNDER A SPECIFIC CONTRACT
ADJUSTMENT PROVISION, SUCH AS THE CHANGES OR CHANGED CONDITIONS
CLAUSES, THE CONTROVERSY FALLS WITHIN THE DISPUTES CLAUSE AND CANNOT BE
TRIED DE NOVO IN A SUIT FOR BREACH OF CONTRACT.  MORRISON-KNUDSEN CO.
V. UNITED STATES, 170 CT. CL. 757, 762, 345 F.2D 833, 837 (1965).  WITH
RESPECT TO RELIEF AVAILABLE UNDER THE CONTRACT, THEREFORE, THE
CONTRACTOR MUST EXHAUST HIS ADMINISTRATIVE REMEDIES AND THE FINDINGS
AND DETERMINATION OF THE BOARD WOULD BE SUBJECT TO REVIEW UNDER THE
WUNDERLICH ACT STANDARDS, AS APPLIED IN BIANCHI.  BUT THE COURT OF
CLAIMS HAS ALSO RULED THAT WHEN ONLY PARTIAL RELIEF IS AVAILABLE UNDER
THE CONTRACT - E.G., AN EXTENSION OF TIME UNDER ARTICLE 4 - THE
REMEDIES UNDER THE CONTRACT ARE NOT EXCLUSIVE AND THE CONTRACTOR MAY
SECURE DAMAGES IN BREACH OF CONTRACT IF THE GOVERNMENT'S CONDUCT HAS
BEEN UNREASONABLE.  SEE FULLER CO. V. UNITED STATES, 108 CT. CL. 70, 90
102, 69 F. SUPP. 409 (1947); KEHM CORP. V. UNITED STATES, 119 CT. CL.
454, 465-473, 93 F. SUPP. 620 (1950).  THE ISSUE RAISED BY THE DECISION
OF THE COURT OF CLAIMS RESPECTING THE PIER DRILLING AND SHIELD WINDOW
CLAIMS IS THEREFORE WHETHER FACTUAL ISSUES THAT HAVE ONCE BEEN PROPERLY
DETERMINED ADMINISTRATIVELY MAY BE RETRIED DE NOVO IN SUBSEQUENT BREACH
OF CONTRACT ACTIONS FOR RELIEF THAT IS UNAVAILABLE UNDER THE CONTRACT. 

THE OTHER ISSUE OF SIGNIFICANCE IN THIS CASE IS RAISED BY A THIRD
CLAIM FILED BY THE CONTRACTOR AND INVOLVES THE MATTER REFERRED TO BY
THE ADVISORY BOARD OF CONTRACT APPEALS IN DISPOSING OF THE CONTRACTOR'S
PIER DRILLING CLAIM.  THE CONTRACTOR, AS IT WAS PERMITTED TO DO UNDER
THE CONTRACT, ELECTED TO PURCHASE CONCRETE AGGREGATE FROM THE
GOVERNMENT STOCKPILE, DISCOVERING VERY SHORTLY THAT THE AGGREGATE WAS
DIRTY AND ITS POOR QUALITY THE CAUSE OF UNDERSTRENGTH CONCRETE.  THE
GOVERNMENT SUSPENDED THE WORK FOR A TIME, DIRECTED TEMPORARY CORRECTIVE
PROCEDURES AND ITSELF UNDERTOOK MORE PERMANENT REMEDIAL MEASURES. 
AFTER COMPLETING THE CONTRACT, THE CONTRACTOR CLAIMED EXTRA
COMPENSATION BASED ON THE POOR CONDITION OF THE AGGREGATE, WHICH WAS
ALLEGED TO BE A CHANGED CONDITION UNDER ARTICLE 4.  THE CONTRACTING
OFFICER REJECTED THE CLAIM AND THE BOARD RULED THE APPEAL WAS
UNTIMELY.  IT REMARKED, HOWEVER, THAT IF THE CLAIM WAS ONE FOR
UNLIQUIDATED DAMAGES FOR BREACH OF WARRANTY OR FOR DELAY, IT HAD NO
JURISDICTION TO AWARD MONETARY RELIEF.  REJECTING THE GOVERNMENT'S
POSITION THAT EVEN IF A CLAIM SOUGHT ONLY A REMEDY THAT WAS NOT
AVAILABLE UNDER ARTICLES 3, 4 OR 9, IT NEVERTHELESS WAS WITHIN THE
SCOPE OF THE DISPUTES CLAUSE AND SUBJECT TO "FINAL" ADMINISTRATIVE
DETERMINATION, THE COURT OF CLAIMS HELD THAT UNLESS THE CLAIM SOUGHT
RELIEF FOR A "CHANGE" UNDER ARTICLE 3 OR "CHANGED CONDITIONS" UNDER
ARTICLE 4 OR "EXCUSABLE DELAY" UNDER ARTICLE 9 AND WAS ADJUSTABLE BY
THE TERMS OF THOSE PROVISIONS, THE CLAIM WAS NOT WITHIN THE DISPUTES
CLAUSE, WAS NOT SUBJECT TO ADMINISTRATIVE DETERMINATION AND WAS A
MATTER FOR DE NOVO TRIAL AND DECISION IN THE PROPER COURT.  (FN4)

                                   II. 

WE DEAL FIRST WITH THE ISSUE OF THE SCOPE OF THE DISPUTES CLAUSE
WHICH IS RAISED BY THE COURT OF CLAIMS' TREATMENT OF THE CONCRETE
AGGREGATE CLAIM.  THE GOVERNMENT REASSERTS HERE ITS POSITION IN THE
COURT OF CLAIMS  (FN5) THAT THE DISPUTES CLAUSE AUTHORIZES AND COMPELS
ADMINISTRATIVE ACTION IN CONNECTION WITH ALL DISPUTES ARISING BETWEEN
THE PARTIES IN THE COURSE OF COMPLETING THE CONTRACT.  IN ITS VIEW, THE
DISPUTES CLAUSE IS NOT LIMITED TO THOSE DISPUTES ARISING UNDER OTHER
PROVISIONS OF THE CONTRACT - ARTICLES 3, 4 AND 9 IN THIS CASE - THAT
CONTEMPLATE EQUITABLE ADJUSTMENT IN PRICE AND TIME UPON THE OCCURRENCE
OF THE SPECIFIED CONTINGENCIES.  IF THE GOVERNMENT IS CORRECT, THE
CONCRETE AGGREGATE CLAIM WAS A PROPER SUBJECT FOR ADMINISTRATIVE
HANDLING EVEN IF THE SUBSTANDARD AGGREGATE WAS NOT A CHANGED CONDITION
WITHIN ARTICLE 4 AND EVEN IF THE CLAIM WAS FOR BREACH OF WARRANTY AND
DELAY DAMAGES.  FROM THIS AND FROM THE GOVERNMENT'S POSITION IN UNITED
STATES V. ANTHONY GRACE & SONS, INC., POST, P. 424, WHICH WE SUSTAIN,
IT WOULD FOLLOW THAT THE FACTUAL ISSUES UNDERLYING THIS CLAIM WERE NOT
SUBJECT TO A DE NOVO TRIAL IN THE COURT OF CLAIMS. 

WE MUST REJECT THE GOVERNMENT POSITION, AS DID ALL THE JUDGES IN THE
COURT OF CLAIMS.  THE POWER OF THE ADMINISTRATIVE TRIBUNAL TO MAKE
FINAL AND CONCLUSIVE FINDINGS ON FACTUAL ISSUES RESTS ON THE CONTRACT,
MORE SPECIFICALLY ON THE DISPUTES CLAUSE CONTAINED IN ARTICLE 15.  THIS
BASIC PROPOSITION THE UNITED STATES DOES NOT CHALLENGE; AND THE SHORT
OF THE MATTER IS THAT WHEN THE PARTIES SIGNED THIS CONTRACT IN 1953,
NEITHER COULD HAVE UNDERSTOOD THAT THE DISPUTES CLAUSE EXTENDED TO
BREACH OF CONTRACT CLAIMS NOT REDRESSABLE UNDER OTHER CLAUSES OF THE
CONTRACT.  (FN6)  OUR CONCLUSION RESTS ON AN EXAMINATION OF UNIFORM,
CONTINUOUS, AND LONG-STANDING JUDICIAL AND ADMINISTRATIVE CONSTRUCTION
OF THE DISPUTES CLAUSE, BOTH BEFORE AND AFTER THE CONTRACT HERE IN
QUESTION WAS EXECUTED.  REFERENCE TO DECISIONS SUBSEQUENT TO 1953 IS
JUSTIFIED IN MANY CASES AS A PRACTICAL CONSTRUCTION OF THE CLAUSE BY
ONE OF THE CONTRACTING PARTIES, THE GOVERNMENT (FOR IT HAS FREQUENTLY
BEEN THE GOVERNMENT THAT HAS URGED A NARROW CONSTRUCTION OF THE
DISPUTES CLAUSE ON THE VARIOUS BOARDS OF CONTRACT APPEALS), (FN7) AND
IN ANY EVENT AS SHOWING THE CONSTRUCTION ON WHICH INNUMERABLE OTHER
GOVERNMENT CONTRACTORS MAY HAVE RELIED IN NOT PRESENTING BREACH OF
CONTRACT CLAIMS TO THE CONTRACTING OFFICER, WHICH CLAIMS WOULD NOW BE
FOREVER BARRED UNDER THE GOVERNMENT'S INTERPRETATION BY THE CONTRACTUAL
TIME LIMITATIONS ON THE PRESENTATION OF CLAIMS AND APPEALS.  (FN8) 

BEGINNING IN 1937, A SERIES OF CASES IN THE COURT OF CLAIMS DECIDED
PRIOR TO THE EXECUTION OF THIS CONTRACT HAD ESTABLISHED THAT THE
JURISDICTION OF THE BOARDS OF CONTRACT APPEALS UNDER THE DISPUTES
CLAUSE WAS LIMITED TO CLAIMS FOR EQUITABLE ADJUSTMENTS, TIME
EXTENSIONS, OR OTHER REMEDIES UNDER SPECIFIC CONTRACT PROVISIONS
AUTHORIZING SUCH RELIEF AND ACCORDINGLY THAT THE CONTRACTOR NEED NOT
PROCESS PURE BREACH OF CONTRACT CLAIMS THROUGH THE DISPUTES MACHINERY
BEFORE FILING HIS COURT ACTION.  SEE, E.G., PHOENIX BRIDGE CO. V.
UNITED STATES, 85 CT. CL. 603, 629-630 (1937); PLATO V. UNITED STATES,
86 CT. CL. 665, 677-678 (1938); JOHN A. JOHNSON CONTRACTING CORP. V.
UNITED STATES, 119 CT. CL. 707, 745, 98 F. SUPP. 154, 156 (1951);
CONTINENTAL ILLINOIS NAT. BANK V. UNITED STATES, 126 CT. CL. 631, 640
641, 115 F. SUPP.  892, 897 (1953).  THAT HAS CONTINUED TO BE THE VIEW
OF THE COURT OF CLAIMS.  E.G., RAILROAD WATERPROOFING CORP. V. UNITED
STATES, 133 CT. CL. 911, 915-916, 137 F. SUPP. 713, 715-716 (1956);
EKCO PRODUCTS CO. V. UNITED STATES, 160 CT. CL. 75, 84, 312 F.2D 768,
773 (1963); SEE ALSO HUNTER V. UNITED STATES, 9 C.C.F., PARA 72,647
(D.C.E.D.N.C. 1963), AFF'D PER CURIAM, 331 F.2D 741 (C.A. 4TH CIR.
1964). 

AFTER ITS CREATION IN 1942, THE WAR DEPARTMENT BOARD OF CONTRACT
APPEALS QUICKLY ACCEPTED THE PRINCIPLE ESTABLISHED BY THE PHOENIX
BRIDGE AND PLATO CASES, BOYER T/A HARRY BOYER, SON & CO., 1 C.C.F. 53
(1943); KIRK T/A KIRK BLDG. CO., 1 C.C.F. 67, 70-71 (1943), AND LONG
PRIOR TO 1953 IT WAS THE SETTLED PRACTICE OF THE VARIOUS BOARDS TO
REFUSE TO CONSIDER PURE BREACH OF CONTRACT CLAIMS, E.G., ASBESTOS WOOD
MFG. CO., 2 C.C.F. 203 (WDBCA 1944); SPECER B. LANE CO., 2 C.C.F. 500,
505 (WDBCA 1944); RUST ENGR.  CO., 3 C.C.F. 1210 (NDBCA 1945).  THE
UNITED STATES, INDEED, GRUDGINGLY CONCEDES THAT THE BOARDS "HAVE
FREQUENTLY, AND PERHAPS USUALLY," DECLINED SUCH JURISDICTION.  SUCH
RULINGS ARE IN FACT LEGION, SEE, E.G., DEAN CONSTR.  CO., 1965-2
B.C.A., PARA 4888 (GSBCA 1965); PROTOTYPE DEVELOPMENT, INC., 1965-2
B.C.A., PARA 4993 (ASBCA 1965); ELECTRICAL BUILDERS, INC., 1964 B.C.A.,
PARA 4377 (IBCA 1964); E.&E.J. PFOTZER, 1965-2 B.C.A., PARA 5144 (ENG
BCA 1965), AND THE DECISIONS CITED THEREIN AND IN THE DECISION BELOW,
168 CT. CL., AT 538, 339 F.2D, AT 616, N. 2 (DAVIS, J., DISSENTING AND
CONCURRING), AND INCLUDE DECISIONS OF THE BODIES APPOINTED TO
ADMINISTER THE DISPUTES CLAUSE ON BEHALF OF THE ATOMIC ENERGY
COMMISSION, THE CONTRACTING AGENCY IN THIS CASE, SEE CLAREMONT CONSTR. 
CO., DKT. NO. 64 (FEB. 14, 1955); FRONTIER DRILLING CO., DKT. NO. 74
(JULY 1, 1955); UTAH CONSTR.  CO., DKT.  NO. 91 (DEC. 12, 1956); J.A.
TIBERTI CONSTR.  CO., DKT. NO. CA-126 (MAY 2, 1961); BUT CF. FICK
FOUNDRY CO., 1965-2 B.C.A., PARA 5052, AT 23,786.  THE AEC ADVISORY
BOARD OF CONTRACT APPEALS REAFFIRMED THIS INTERPRETATION OF THE
DISPUTES CLAUSE IN ITS DISCUSSION OF RESPONDENT'S CONCRETE AGGREGATE
CLAIM, SEE SUPRA, P. 403. 

THE UNITED STATES DOES NOT DISPUTE THE FACT THAT THE PAST
CONSTRUCTION OF THE STANDARD DISPUTES CLAUSE HAS BEEN THAT IT DOES NOT
AUTHORIZE THE BOARDS OF CONTRACT APPEALS TO FINALLY DETERMINE, AND TO
GRANT RELIEF FOR, ALL CLAIMS RELATED TO THE CONTRACTED WORK.  (FN9)
INSTEAD, IT ATTACKS THESE RULINGS OF THE COURT OF CLAIMS AND THE BOARDS
OF CONTRACT APPEALS CONCERNING THE SCOPE OF THE STANDARD DISPUTES
CLAUSE AS ERRONEOUS AND PREMISED ON PRINCIPLES THAT HAVE SINCE BEEN
REJECTED IN OTHER CASES.  BUT EVEN IF, AS AN ORIGINAL MATTER, THE
LANGUAGE OF THE DISPUTES CLAUSE MIGHT HAVE BEEN SUSCEPTIBLE OF THE
INTERPRETATION URGED BY THE GOVERNMENT, THE RESTRICTIVE MEANING OF THE
WORDS "ARISING UNDER THIS CONTRACT" HAD LONG SINCE BEEN ESTABLISHED
WHEN THESE PARTIES USED THEM IN 1953.  THE QUESTION BEFORE US IS WHAT
THE PARTIES INTENDED, NOT WHETHER THE CONSTRUCTION ON WHICH THEY RELIED
WAS ERRONEOUS. 

THE UNITED STATES, AS AN ALTERNATIVE ARGUMENT, WOULD LIMIT THE
RULINGS DESCRIBED ABOVE TO THE QUESTION OF AVAILABILITY OF REMEDY, AND
IT CONTENDS THAT EVEN IF IT BE ACCEPTED THAT THE BOARDS OF CONTRACT
APPEALS ARE WITHOUT JURISDICTION TO GRANT RELIEF FOR BREACH OF CONTRACT
THEY ARE NEVERTHELESS AUTHORIZED BY THE DISPUTES CLAUSE TO MAKE BINDING
FINDINGS OF FACT RESPECTING ALL DISPUTES.  THE ARGUMENT IS PREMISED IN
THE MAIN ON CERTAIN UNIQUE PROVISIONS IN THE CHARTER OF THE ARMED
SERVICES BOARD OF CONTRACT APPEALS, WHICH IS THE SUCCESSOR TO THE WAR
DEPARTMENT BOARD OF CONTRACT APPEALS.  SPECIAL ATTENTION TO THE ASBCA
IS JUSTIFIED BY ITS LARGE CASELOAD AND ITS CONSEQUENT IMPORTANCE AS A
MODEL FOR THE DEVELOPMENT OF OTHER BOARDS. 

ORIGINALLY THE WDBCA TOOK A NARROW VIEW OF ITS JURISDICTION, SEE
SHEDD, DISPUTES AND APPEALS: THE ARMED SERVICES BOARD OF CONTRACT
APPEALS, 29 LAW & CONTEMP.  PROB.  39, 55 (1964), AND AS A RESULT THE
SECRETARY OF WAR ISSUED ON JULY 4, 1944, A MEMORANDUM DIRECTING THE
BOARD, INTER ALIA, TO: 

"FIND AND ADMINISTRATIVELY DETERMINE THE FACTS OUT OF WHICH A CLAIM
BY A CONTRACTOR ARISES FOR DAMAGES AGAINST THE GOVERNMENT FOR BREACH OF
CONTRACT, WITHOUT EXPRESSING OPINION ON THE QUESTION OF THE
GOVERNMENT'S LIABILITY FOR DAMAGES."  9 FED. REG. 9463. 

SIMILARLY, THE PRESENT CHARTER OF THE ASBCA PROVIDES THAT: 

"WHEN IN THE CONSIDERATION OF AN APPEAL IT APPEARS THAT A CLAIM IS
INVOLVED WHICH IS NOT COGNIZABLE UNDER THE TERMS OF THE CONTRACT, THE
BOARD MAY, INSOFAR AS THE EVIDENCE PERMITS, MAKE FINDINGS OF FACT WITH
RESPECT TO SUCH A CLAIM WITHOUT EXPRESSING AN OPINION ON THE QUESTION
OF LIABILITY."  32 CFR SEC. 30.1, APP. A, PART I, SEC. 5. 

IT WILL BE NOTED THAT ON THEIR FACE THE VERY PROVISIONS ON WHICH THE
GOVERNMENT RELIES IN THIS PHASE OF ITS ARGUMENT CONCLUSIVELY REFUTE THE
BROADER CONTENTION THAT THE BOARDS MAY DETERMINE AND AFFORD RELIEF FOR
ALL CONTRACT CLAIMS, FOR THEY RECOGNIZE THAT SOME CLAIMS FOR BREACH OF
CONTRACT MAY NOT BE "COGNIZABLE UNDER THE TERMS OF THE CONTRACT" AND
THAT IN SUCH CASES THE BOARDS SHOULD EXPRESS NO OPINION ON THE QUESTION
OF LIABILITY.  (FN10)  NOR DO THE PROVISIONS, IN TERMS, PROVIDE ANY
SUPPORT FOR THE VIEW THAT THE BOARDS MAY MAKE BINDING, AS DISTINGUISHED
FROM ADVISORY, FINDINGS OF FACT. 

IN THE FIRST CASE BEFORE THE WDBCA UNDER THE 1944 DIRECTIVE, THE
BOARD RULED THAT IT WOULD RETAIN JURISDICTION TO HOLD A HEARING AND TO
MAKE FINDINGS OF FACT EVEN THOUGH IT EXPRESSLY RECOGNIZED IT COULD
GRANT NO RELIEF AND IT WAS "DOUBTFUL WHETHER ANY FINDINGS THE BOARD
SHOULD MAKE  ...  WOULD BE GIVEN ANY CONSIDERATION BY A COURT  ...  ." 
COLUMBIA CONSTRUCTORS, INC., 2 C.C.F. 942 (WDBCA 1944).   SUCH
WILLINGNESS TO MAKE FINDINGS EVEN THOUGH NO HEARING HAD THERETOFORE
BEEN HELD WAS IN KEEPING WITH THE DUAL FUNCTION OF ADJUDICATORY BODY
AND ADVISOR TO THE SECRETARY THEN EXERCISED BY THE WDBCA, WHICH HEARD
APPEALS ON AN ADVISORY BASIS IN THE CASE OF CONTRACTS THAT DID NOT
AUTHORIZE THE DESIGNATION OF A BOARD AS THE REPRESENTATIVE OF THE
SECRETARY TO HEAR APPEALS, SEE GENERALLY SMITH, THE WAR DEPARTMENT
BOARD OF CONTRACT APPEALS, 5 FED. B.J. 74, 77 (1943), AND SOMETIMES
INVESTIGATED CLAIMS FOR EXTRAORDINARY RELIEF UNDER TITLE II OF THE
FIRST WAR POWERS ACT, 55 STAT. 838 (1941), SEE ARDMORE CONSTR.  CO., 3
C.C.F. 255, 265 (WDBCA 1944).  SUBSEQUENTLY THE CONTRACTOR'S APPEAL IN
THE COLUMBIA CONSTRUCTORS CASE WAS DISMISSED WHEN THE CONTRACTOR
REPRESENTED THAT HE DID NOT DESIRE A HEARING IF THE BOARD COULD AWARD
NO RELIEF, THUS CONFIRMING THE PARTIES' UNDERSTANDING THAT THE 1944
MEMORANDUM DID NOT REQUIRE PRESENTATION TO THE WDBCA OF ALL CONTRACT
DISPUTES AS A PREREQUISITE TO A COURT ACTION.  2 C.C.F. 1162 (WDBCA
1944).  IN LATER CASES WHERE A HEARING HAD BEEN HELD IN CONNECTION WITH
OTHER CLAIMS THE WDBCA DID MAKE SPECIAL FINDINGS, BUT WITHOUT ANY
INTIMATION THAT SUCH FINDINGS WERE TO HAVE BINDING EFFECT.  E.G.,
SWORDS-MCDOUGAL CO., 3 C.C.F. 238 (WDBCA 1944); FISKE-CARTER CONSTR. 
CO., 3 C.C.F. 415 (WDBCA 1945); HARGRAVE T/A HARGRAVE CONSTR.  CO., 3
C.C.F. 1113, 1120 (WDBCA 1945). 

THE PRACTICE OF THE ASBCA HAS EVIDENCED AN EVEN NARROWER
UNDERSTANDING OF THE CHARTER PROVISION AUTHORIZING FINDINGS WITHOUT
EXPRESSION OF OPINION ON LIABILITY.  IN CASES HEARD ON THE MERITS PRIOR
TO DECISION OF THE JURISDICTIONAL QUESTION THE BOARD HAS MADE SPECIAL
FINDINGS IN ACCORDANCE WITH THE CHARTER.  SEE SPECIALTY ASSEMBLING &
PACKING CO., 1959-2 B.C.A., PARA 2370; J.W. BATESON CO., 1962 B.C.A.,
PARA 3293; SEE ALSO THE METRIG CORP., 1963 B.C.A., PARA 3658.  BUT IN
SIMMEL-INDUSTRIE MECANICHE SOCIETA PER AZIONI, 1961-1 B.C.A., PARA
2917, THE BOARD INTERPRETED THE CHARTER TO MEAN THAT IT WOULD MAKE
SPECIAL FINDINGS ONLY IN "APPEALS WHERE A HEARING ON THE MERITS HAS
BEEN COMPLETED PRIOR TO THE FILING OF A RULE TO SHOW CAUSE OR A MOTION
TO DISMISS."  ID., AT 15,235.  MORE RECENTLY THE BOARD HAS EXPLAINED
THAT: 

"GENERALLY, AS A MATTER OF SOUND POLICY, THE BOARD'S DISCRETIONARY
RIGHT TO MAKE FINDINGS OF FACT IN INSTANCES WHERE A CLAIM IS NOT
COGNIZABLE UNDER THE CONTRACT IS NOT EXERCISED, SIMPLY BECAUSE THE
BOARD HAS NO WAY TO AFFORD THE PARTIES THE REMEDY WHICH LOGICALLY WOULD
FLOW FROM THE FACTS FOUND.  THE CASES WHEREIN THE BOARD HAS DECLINED TO
CONSIDER AN APPEAL BECAUSE IT HAD NO METHOD WITHIN THE CONFINES OF THE
CONTRACT TERMS TO AFFORD A REMEDY HAVE SOMETIMES BEEN DESCRIBED,
PERHAPS RATHER INAPTLY, AS BEING BEYOND OUR JURISDICTION OR BEYOND OUR
AUTHORITY TO CONSIDER.  BASICALLY, THE LACK IS NOT OF AUTHORITY TO HEAR
BUT OF AUTHORITY FINALLY TO DISPOSE ADMINISTRATIVELY."  LENOIR WOOD
FINISHING CO., 1964 B.C.A., PARA 4111, AT 20,061. 

AS LENOIR WOOD FINISHING CO. INDICATES, THE ASBCA, LIKE THE WDBCA,
HAS DISCLAIMED ANY BINDING EFFECT FOR ITS FINDINGS IN THOSE CASES WHERE
IT HAS MADE SPECIAL FINDINGS SOLELY UNDER AUTHORITY OF THE SPECIAL
CHARTER PROVISION.  SEE ALSO SIMMEL-INDUSTRIE MECCANICHE SOCIETA PER
AZIONI, SUPRA, AT 15,235; J.W. BATESON CO., SUPRA, AT 16,985.  SINCE
THE ASBCA HAS DECLARED IT IS NOT UNDER ANY MANDATORY DUTY TO MAKE
FINDINGS AT A CONTRACTOR'S REQUEST IN CASES WHERE IT HAS NO
JURISDICTION TO GRANT RELIEF, IT WOULD SEEM STRANGE INDEED TO INTERPRET
THE DISPUTES CLAUSE AS EMBODYING THE PARTIES' UNDERSTANDING THAT SUCH
CASES WERE NEVERTHELESS TO BE DETERMINED ADMINISTRATIVELY. 

SINCE IT IS SO CLEARLY ESTABLISHED THAT THE SPECIAL CHARTER AUTHORITY
TO MAKE FINDINGS WITHOUT EXPRESSION OF OPINION ON LIABILITY DOES NOT
EXPAND THE SCOPE OF THE DISPUTES CLAUSE OR EMPOWER THE BOARD TO MAKE
BINDING DETERMINATIONS OF FACT, ONE MAY WELL ASK WHAT PURPOSES SUCH
AUTHORITY, AND THE FINDINGS MADE PURSUANT TO IT, CAN POSSIBLY SERVE. 
ONE OBVIOUS ANSWER IS THAT THE BOARD'S FINDINGS MAY FACILITATE A
SETTLEMENT OF THE CONTRACTOR'S BREACH OF CONTRACT CLAIM.  FOR EXAMPLE,
THE GENERAL ACCOUNTING OFFICE, WHICH HAS STATUTORY AUTHORITY TO SETTLE
CLAIMS AGAINST THE UNITED STATES, BUDGET AND ACCOUNTING ACT, 1921, SEC
305, 42 STAT. 24, 31 U.S.C. SEC 71 (1964 ED.), PROVIDES NO PROCEDURE
FOR RESOLUTION OF FACTUAL DISPUTES, 21 COMP. GEN. 244, AND THUS REFUSES
TO UNDERTAKE SETTLEMENT WHERE THERE ARE SUBSTANTIAL FACTUAL DISPUTES. 
COMP. GEN. DEC. B-147326, MAY 25, 1962; COMP. GEN. DEC. B-149795, JAN.
4, 1963.  ACCORDINGLY, ACCEPTANCE BY THE PARTIES OF THE BOARD'S
FINDINGS MIGHT PROVIDE THE NECESSARY REQUISITE FOR INTERVENTION OF THE
GAO.  (FN11) 

THUS THE SETTLED CONSTRUCTION OF THE DISPUTES CLAUSE EXCLUDES BREACH
OF CONTRACT CLAIMS FROM ITS COVERAGE, WHETHER FOR PURPOSES OF GRANTING
RELIEF OR FOR PURPOSES OF MAKING BINDING FINDINGS OF FACT THAT WOULD BE
REVIEWABLE UNDER WUNDERLICK ACT STANDARDS RATHER THAN DE NOVO.  THIS IS
NOT TO SAY THAT THE GOVERNMENT DOES NOT HAVE A POWERFUL ARGUMENT FOR
CONSTRUING THE DISPUTES CLAUSE TO AFFORD ADMINISTRATIVE RELIEF FOR A
WIDER SPECTRUM OF DISPUTES ARISING BETWEEN THE CONTRACTING PARTIES.  IT
CAN BE ARGUED, AS THE GOVERNMENT PERSUASIVELY DOES, THAT THE SAME
CONSIDERATIONS WHICH INITIALLY LED TO PROVIDING AN ADMINISTRATIVE
REMEDY IN THOSE SITUATIONS COVERED BY SUCH CLAUSES AS ARTICLES 3, 4 AND
9 OF THE CONTRACT ALSO SUPPORT THE BROADER READING OF THE DISPUTES
CLAUSE PERMITTING AND REQUIRING ADMINISTRATIVE FACT FINDING WITH
RESPECT TO ALL DISPUTES ARISING BETWEEN THE CONTRACTING PARTIES.  BUT
THE COVERAGE OF THE DISPUTES CLAUSE IS A MATTER SUSCEPTIBLE OF
CONTRACTUAL DETERMINATION, UNITED STATES V. MOORMAN, 338 U.S. 457,
SUBJECT TO THE LIMITATIONS ON FINALITY IMPOSED BY THE WUNDERLICK ACT,
AND ONE WOULD HAVE EXPECTED MODIFICATION OF THE DISPUTES CLAUSE TO
ENCOMPASS BREACH OF CONTRACT DISPUTES IF THE RESTRICTIVE INTERPRETATION
OF ARTICLE 15 WAS THOUGHT UNDULY TO HINDER GOVERNMENT CONTRACTING.  IN
FACT THE CONTRACTING DEPARTMENTS HAVE NOT REJECTED THE NARROWER
JUDICIAL READING OF THE DISPUTES CLAUSE NOR ATTEMPTED ANY WHOLESALE
REVISION OF ITS LANGUAGE TO COVER ALL FACTUAL DISPUTES.  INSTEAD THEY
HAVE ACTED TO CREATE ALTERNATIVE ADMINISTRATIVE REMEDIES FOR SOME
BREACH OF CONTRACT CLAIMS AND TO DISESTABLISH OTHERS BY FASHIONING
ADDITIONAL SPECIFIC ADJUSTMENT PROVISIONS CONTEMPLATING RELIEF UNDER
THE CONTRACT IN SPECIFIED SITUATIONS NOT REACHED BY SUCH PROVISIONS AS
ARTICLES 3, 4 AND 9. 

AN EXAMPLE OF THE CREATION OF ALTERNATIVE ADMINISTRATIVE REMEDIES IS
AFFORDED BY THE PROVISIONS IN EFFECT AT VARIOUS TIMES SINCE WORLD WAR
II, SEE FIRST WAR POWERS ACT, TITLE II, 55 STAT.  838 (1941); ACT OF
JANUARY 12, 1951, 64 STAT. 1257, AUTHORIZING EXTRAORDINARY RELIEF FOR
CERTAIN CLAIMS OF CONTRACTORS.  PURSUANT TO A DELEGATION BY THE
PRESIDENT UNDER THE STATUTE PRESENTLY IN EFFECT, PUBLIC LAW 85-804, 72
STAT. 972, 50 U.S.C. SEC 1431 (1964 ED.), GOVERNMENT DEPARTMENTS AND
AGENCIES EXERCISING FUNCTIONS IN CONNECTION WITH THE NATIONAL DEFENSE
MAY, UPON A FINDING THAT SUCH ACTION WOULD "FACILITATE THE NATIONAL
DEFENSE," ENTER INTO AMENDMENTS AND MODIFICATIONS OF CONTRACTS WITHOUT
REGARD TO OTHER PROVISIONS OF LAW RESPECTING SUCH AMENDMENTS AND
MODIFICATIONS.  AS IMPLEMENTED BY THE DEPARTMENTAL PROCUREMENT
REGULATIONS, SEE ASPR, 32 CFR SEC 17.000 ET SEQ.; AECPR, 41 CFR SEC 9
17.000 ET SEQ., THE AUTHORITY CONFERRED ENCOMPASSES AMENDMENTS WITHOUT
CONSIDERATION, CORRECTION OF MUTUAL MISTAKES, AND FORMALIZATION OF
INFORMAL COMMITMENTS.  THIS AUTHORITY, WHICH IN MANY RESPECTS IS
ANALOGOUS TO POWER TO SETTLE CLAIMS, IS DELEGATED TO CONTRACT
ADJUSTMENT BOARDS ESTABLISHED WITHIN THE DEPARTMENTS AND AGENCIES
CONCERNED SEPARATE FROM THE BOARDS OF CONTRACT APPEALS.  BECAUSE THE
REGULATIONS PRECLUDE RESORT TO THE POWERS CONFERRED BY PUBLIC LAW 85
804 "UNLESS OTHER LEGAL AUTHORITY IN THE DEPARTMENT CONCERNED IS DEEMED
TO BE LACKING OR INADEQUATE," ASPR, 32 CFR SEC 17.205-1(B)(2), THE ARMY
CONTRACT ADJUSTMENT BOARD HAS REQUIRED CONTRACTORS TO EXHAUST REMEDIES
BEFORE THE ASBCA UNDER THE DISPUTES CLAUSE, BLAW-KNOX CO., ACAB DKT.
NO. 1019, NOV. 2, 1960.  HOWEVER, IN BENDIX CORP., ACAB DKT.  NO. 1050,
SEPT. 11, 1962, WHICH INVOLVED A CLAIM FOR DELAY DAMAGES ARISING OUT OF
THE GOVERNMENT'S FAILURE TO MAKE THE CONSTRUCTION SITE AVAILABLE ON
TIME, THE BOARD RULED THAT THE CONTRACTOR NEED NOT PRESENT ITS CLAIM TO
THE ASBCA IN VIEW OF THAT BODY'S LACK OF JURISDICTION OVER CLAIMS THAT
WERE NOT PREMISED ON A PROVISION FOR ADJUSTMENT WITHIN THE CONTRACT. 
FURTHER, THE ACAB CONFIRMED THAT IT WAS EMPOWERED TO GRANT UNLIQUIDATED
DAMAGES FOR DELAY IN BREACH OF CONTRACT EVEN THOUGH THE CONTRACTOR
MIGHT ALSO HAVE A COURT ACTION.  LIKEWISE, THE BOARDS OF CONTRACT
APPEALS HAVE CONSISTENTLY RECOGNIZED THAT WHILE THEY THEMSELVES MAY BE
WITHOUT JURISDICTION TO GRANT RELIEF FOR CLAIMED BREACHES OF CONTRACT,
SUCH CLAIMS, IN APPROPRIATE CASES, COULD BE PRESENTED TO THE ADJUSTMENT
BOARDS.  SEE, E.G., FISKE-CARTER CONSTR.  CO., 3 C.C.F. 415 (WDBCA
1945); ARDMORE CONSTR.  CO., 3 C.C.F. 468 (WDBCA 1945); SEE GENERALLY
SMITH, THE WAR DEPARTMENT BOARD OF CONTRACT APPEALS, 5 FED. B.J. 74 82
(1943); CF DOYLE & RUSSELL, INC., 1965-2 B.C.A., PARA 4912, AT 23,220
(NASA BCA).  THUS IT IS QUITE EVIDENT FROM THE ADMINISTRATION OF PUBLIC
LAW 85-804 AND ITS PREDECESSORS THAT THE LIMITATIONS ON THE
JURISDICTION OF THE BOARDS OF CONTRACT APPEALS ARE WELL UNDERSTOOD BY
THE MILITARY PROCUREMENT DEPARTMENTS AND CONGRESS.  (FN12)    AN
ILLUSTRATION OF THE DISESTABLISHMENT OF BREACH OF CONTRACT CLAIMS
THROUGH THE FASHIONING OF ADDITIONAL CONTRACT ADJUSTMENT PROVISIONS IS
PROVIDED BY CONTRACTUAL PROVISIONS DESIGNED TO DEAL WITH JUST SUCH
CLAIMS FOR DELAY DAMAGES AS ARE PRESENTED HERE.  IN RESPONSE TO THE
IMPORTUNINGS OF ARMY CONTRACTORS FOLLOWING THIS COURT'S RULING IN
UNITED STATES V. RICE, 317 U.S. 61, THAT THE CONTRACTOR'S REMEDY UNDER
ARTICLE 9 WAS LIMITED TO AN EXTENSION OF TIME, A "SUSPENSION OF WORK"
CLAUSE WAS ADOPTED FOR USE IN CONSTRUCTION CONTRACTS, SEE T.C. BATESON
CONSTR.  CO., 1960-1 B.C.A., PARA 2552 (ASBCA 1960), AT 12,347-12,348,
(FN13) AND HAS BEEN THE BASIS FOR ADMINISTRATIVE ALLOWANCE OF DELAY
DAMAGES IN NUMEROUS CASES.  A MORE EXTENSIVE CLAUSE FOR "PRICE
ADJUSTMENT FOR SUSPENSION, DELAYS, OR INTERRUPTION OF WORK," ASPR, 32
CFR SEC 7.604-3, WAS PROMULGATED IN 1961 FOR OPTIONAL USE IN DEPARTMENT
OF DEFENSE FIXED-PRICE CONSTRUCTION CONTRACTS.  EFFECTIVE APRIL 1965,
THE CLAUSE WAS MADE MANDATORY IN SUCH CONTRACTS, ASPR SEC 7-602.46,
(FN14) AND THE ARMED SERVICES PROCUREMENT REGULATIONS COMMITTEE HAS
PROPOSED ITS USE IN FIXED-PRICE SUPPLY CONTRACTS AS WELL.  SEE
GENERALLY KELLY, GOVERNMENT CONTRACTORS' REMEDIES:  A REGULATORY
REFORM, 18 ADMIN. L. REV. 145, 148-152 (1965).  AN INTERAGENCY TASK
GROUP IS CURRENTLY REVIEWING THE CLAUSES IN THE STANDARD CONTRACT FORM,
INCLUDING THE CHANGES, CHANGED CONDITIONS AND SUSPENSION OF WORK
CLAUSES, TO DETERMINE WHETHER THEY SHOULD BE EXPANDED IN COVERAGE TO
PREVENT FRAGMENTATION OF REMEDIES.  SEE FEDERAL CONTRACTS REPORT, NO.
79, AUG. 23, 1965, PP. A-6-A-7.  WHILE IN ONE RESPECT IT CAN BE SAID
THAT CLAUSES BROADENING REMEDIES UNDER THE CONTRACT HAVE BEEN ADOPTED
IN RESPONSE TO RESTRICTIVE INTERPRETATION OF THE DISPUTES CLAUSE AND
EXPRESS DISSATISFACTION WITH THE UNAVAILABILITY OF AN ADMINISTRATIVE
REMEDY, THE FACT THAT THE RESPONSE HAS TAKEN THIS MEASURED FORM HAS
MANIFESTED THE PARTIES' RELIANCE ON THE PRIOR INTERPRETATION AND HAS
PROPERLY TENDED TO REINFORCE IT.  AS THE ASBCA REMARKED IN SIMMEL
INDUSTRIE, SUPRA, "IT IS NOTEWORTHY THAT WHEN IT IS INTENDED TO PROVIDE
AN ADMINISTRATIVE REMEDY FOR GOVERNMENT DELAYS, SPECIFIC CONTRACT
CLAUSES HAVE BEEN DEVELOPED AND ARE SET FORTH FOR THAT PURPOSE," 1961-1
B.C.A., AT 15,234. 

FINALLY, WE MAY NOTE THAT DEVELOPMENT OF PROVISIONS SUCH AS THE
SUSPENSION OF WORK CLAUSE ILLUSTRATES NOT ONLY ADMINISTRATIVE
ACCEPTANCE OF THE NARROW INTERPRETATION OF THE DISPUTES CLAUSE; IT ALSO
INDICATES THE LACK OF ANY COMPELLING REASON FOR OVERTURNING THAT
INTERPRETATION AT THIS LATE STAGE.  INCLUSION OF SUCH ADDITIONAL
CLAUSES IN THE CONTRACT NATURALLY LIMITS THE AREA OF DISPUTES FALLING
OUTSIDE THE FRAMEWORK OF CONTRACTUAL ADJUSTMENT AND THUS OUTSIDE THE
DISPUTES CLAUSE, AS DOES EXPANSIVE CONSTRUCTION OF THE EXISTING
ADJUSTMENT CLAUSES.  AS ONE MEMBER OF THE ASBCA HAS RECENTLY REMARKED: 

"  ...  GOVERNMENT PROCUREMENT AGENCIES STARTED SEVERAL YEARS AGO
ADDING VARIOUS CONTRACT CLAUSES DESIGNED TO CONVERT WHAT WOULD
OTHERWISE BE CLAIMS FOR DAMAGES FOR BREACH OF CONTRACT INTO CLAIMS
PAYABLE UNDER SUCH CONTRACT CLAUSES AND, HENCE, TO BE REGARDED AS
'ARISING UNDER THE CONTRACT.'  THIS TREND HAS CONTINUED TO THE POINT
WHERE THE FIELD OF CLAIMS FOR BREACH OF CONTRACT THAT ARE NOT REGARDED
AS 'ARISING UNDER THE CONTRACT' IS BECOMING VERY NARROW INDEED.  ALSO
THERE HAS BEEN AN INCREASING TENDENCY FOR CONTRACT APPEAL BOARDS TO
GIVE A BROAD INTERPRETATION TO CONTRACT CLAUSES AS VEHICLES FOR THE
ADMINISTRATIVE SETTLEMENT OF MERITORIOUS CONTRACT CLAIMS.  DECISIONS
WHERE ASBCA DISMISSES AN APPEAL FOR LACK OF JURISDICTION AS INVOLVING A
CLAIM FOR BREACH OF CONTRACT ARE BECOMING INCREASINGLY RARE."  SHEDD,
DISPUTES AND APPEALS:  THE ARMED SERVICES BOARD OF CONTRACT APPEALS, 29
LAW & CONTEMP.  PROB.  39, 74 (1964). 

FOR THE REASONS STATED WE REJECT THE GOVERNMENT'S CONTENTION THAT THE
DISPUTES CLAUSE COVERS ALL DISPUTES RELATING TO THE CONTRACT. 

         III. 

WE ARE UNABLE TO ACCEPT, HOWEVER, THE COURT OF CLAIMS' DISPOSITION OF
THE PIER DRILLING AND SHIELD WINDOW CLAIMS.  ALTHOUGH THE BOARD LACKED
AUTHORITY TO CONSIDER DELAY DAMAGES UNDER THESE TWO CLAIMS, IT DID HAVE
AUTHORITY TO CONSIDER THE REQUESTS FOR EXTENSIONS OF TIME UNDER
ARTICLES 4 AND 9, AND THESE REQUESTS CALLED FOR AN ADMINISTRATIVE
DETERMINATION OF THE FACTS.  SUCH FINDINGS, IF THEY OTHERWISE SATISFY
THE STANDARDS OF THE WUNDERLICH ACT, ARE CONCLUSIVE ON THE PARTIES, NOT
ONLY WITH RESPECT TO THE ARTICLES 4 AND 9 CLAIMS BUT ALSO IN THE COURT
SUIT FOR BREACH OF CONTRACT AND DELAY DAMAGES.  THIS FINALITY IS
REQUIRED BY THE LANGUAGE AND POLICIES UNDERLYING THE DISPUTES CLAUSE
AND THE WUNDERLICH ACT AND BY THE GENERAL PRINCIPLES OF COLLATERAL
ESTOPPEL. 

BOTH THE DISPUTES CLAUSE AND THE WUNDERLICH ACT CATEGORICALLY STATE
THAT ADMINISTRATIVE FINDINGS ON FACTUAL ISSUES RELEVANT TO QUESTIONS
ARISING UNDER THE CONTRACT SHALL BE FINAL AND CONCLUSIVE ON THE
PARTIES.  (FN15)  THERE IS NO ROOM IN THE LANGUAGE OF ARTICLE 15 OR OF
THE ACT TO CONSIDER FACTUAL FINDINGS FINAL FOR SOME PURPOSES BUT NOT
FOR OTHERS.  IT WOULD DISREGARD THE PARTIES' AGREEMENT TO CONCLUDE, AS
THE COURT OF CLAIMS DID, THAT BECAUSE THE COURT SUIT WAS ONE FOR BREACH
OF CONTRACT WHICH THE ADMINISTRATIVE AGENCY HAD NO AUTHORITY TO DECIDE,
THE COURT NEED NOT ACCEPT ADMINISTRATIVE FINDINGS WHICH WERE
APPROPRIATELY MADE AND OBVIOUSLY RELEVANT TO ANOTHER CLAIM WITHIN THE
JURISDICTION OF THE BOARD. 

THE POSITION OF THE COURT OF CLAIMS WOULD PERMIT EROSION OF THE
POLICIES BEHIND BOTH THE WUNDERLICH ACT AND THE DISPUTES CLAUSE.  ANY
CLAIM, WHETHER WITHIN OR WITHOUT THE DISPUTES CLAUSE, CAN BE COUCHED IN
BREACH OF CONTRACT LANGUAGE.  (FN16)  THE CONTRACTUAL AND STATUTORY
SCHEME WOULD BE TOO EASILY AVOIDED IF A PARTY COULD COMPEL RELITIGATION
OF A MATTER ONCE DECIDED BY A MERE EXERCISE OF SEMANTICS.  CERTAINLY,
AS THE COURT OF CLAIMS ITSELF HAS SINCE HELD, WHERE THE ADMINISTRATIVE
AGENCY HAS MADE RELEVANT FACTUAL FINDINGS IN THE COURSE OF REFUSING
RELIEF WHICH THE CONTRACT AUTHORIZES IT TO GIVE, THE FINALITY OF THESE
FINDINGS, IF SUFFICIENTLY SUPPORTED, CANNOT BE AVOIDED IN A COURT
ACTION FOR THE SAME RELIEF BY LABELING THE REFUSAL OF AN EQUITABLE
ADJUSTMENT AS A BREACH OF CONTRACT OR BY ASSERTING THAT THE PRIMARY
ISSUE INVOLVED IS A QUESTION OF LAW, MORRISON-KNUDSEN CO. V. UNITED
STATES, 170 CT. CL. 757, 345 F.2D 833; ALLIED PAINT & COLOR WORKS V.
UNITED STATES, 309 F.2D 133.  LIKEWISE, WHEN THE BOARD OF CONTRACT
APPEALS HAS MADE FINDINGS RELEVANT TO A DISPUTE PROPERLY BEFORE IT AND
WHICH THE PARTIES HAVE AGREED SHALL BE FINAL AND CONCLUSIVE, THESE
FINDINGS CANNOT BE DISREGARDED AND THE FACTUAL ISSUES TRIED DE NOVO IN
THE COURT OF CLAIMS WHEN THE CONTRACTOR SUES FOR RELIEF WHICH THE BOARD
WAS NOT EMPOWERED TO GIVE. 

THIS IS NO MORE THAN OUR DECISION IN CARLO BIANCHI REQUIRES.  WE
THERE HELD THAT ADMINISTRATIVE FINDINGS IN THE COURSE OF ADJUDICATING
CLAIMS WITHIN THE DISPUTES CLAUSE WERE NOT TO BE RETRIED IN THE COURT
OF CLAIMS BUT WERE TO BE REVIEWED BY THAT COURT ON THE ADMINISTRATIVE
RECORD.  THIS RESULT, WHICH WAS REQUIRED BOTH BY THE CONTRACT OF THE
PARTIES AND BY THE WUNDERLICH ACT, AVOIDS "A NEEDLESS DUPLICATION OF
EVIDENTIARY HEARINGS AND A HEAVY ADDITIONAL BURDEN IN THE TIME AND
EXPENSE REQUIRED TO BRING LITIGATION TO AN END,"  (FN17) 373 U.S., AT
717, AND IT ENCOURAGES THE PARTIES TO MAKE A COMPLETE DISCLOSURE AT THE
ADMINISTRATIVE LEVEL, RATHER THAN HOLDING EVIDENCE BACK FOR SUBSEQUENT
LITIGATION.  H.R. REP. NO. 1380, 83D CONG., 2D SESS., 5 (1964).  THESE
SAME REASONS SUPPORT THE FINALITY, IN A SUIT FOR DELAY DAMAGES, OF ALL
VALID AND APPROPRIATE ADMINISTRATIVE FINDINGS ALREADY MADE IN THE
COURSE OF RESOLVING A DISPUTE "ARISING UNDER" THE CONTRACT. 

ALTHOUGH THE DECISION HERE RESTS UPON THE AGREEMENT OF THE PARTIES AS
MODIFIED BY THE WUNDERLICH ACT, WE NOTE THAT THE RESULT WE REACH IS
HARMONIOUS WITH GENERAL PRINCIPLES OF COLLATERAL ESTOPPEL.  (FN18)
OCCASIONALLY COURTS HAVE USED LANGUAGE TO THE EFFECT THAT RES JUDICATA
PRINCIPLES DO NOT APPLY TO ADMINISTRATIVE PROCEEDINGS,  (FN19) BUT SUCH
LANGUAGE IS CERTAINLY TOO BROAD.  (FN20)  WHEN AN ADMINISTRATIVE AGENCY
IS ACTING IN A JUDICIAL CAPACITY AND RESOLVES DISPUTED ISSUES OF FACT
PROPERLY BEFORE IT WHICH THE PARTIES HAVE HAD AN ADEQUATE OPPORTUNITY
TO LITIGATE, THE COURTS HAVE NOT HESITATED TO APPLY RES JUDICATA TO
ENFORCE REPOSE.  SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381; HANOVER
BANK V. UNITED STATES, 152 CT. CL. 391, 285 F.2D 455; FAIRMONT ALUMINUM
CO. V. COMMISSIONER, 222 F.2D 622; SEATRAIN LINES, INC. V. PENNSYLVANIA
R. CO., 207 F.2D 255.  (FN21)  SEE ALSO GOLDSTEIN V. DOFT, 236 F. SUPP.
730, AFF'D 353 F.2D 484, CERT. DENIED, 383 U.S. 960, WHERE COLLATERAL
ESTOPPEL WAS APPLIED TO PREVENT RELITIGATION OF FACTUAL DISPUTES
RESOLVED BY AN ARBITRATOR. 

IN THE PRESENT CASE THE BOARD WAS ACTING IN A JUDICIAL CAPACITY WHEN
IT CONSIDERED THE PIER DRILLING AND SHIELD WINDOW CLAIMS, THE FACTUAL
DISPUTES RESOLVED WERE CLEARLY RELEVANT TO ISSUES PROPERLY BEFORE IT,
AND BOTH PARTIES HAD A FULL AND FAIR OPPORTUNITY TO ARGUE THEIR VERSION
OF THE FACTS AND AN OPPORTUNITY TO SEEK COURT REVIEW OF ANY ADVERSE
FINDINGS.  THERE IS, THEREFORE, NEITHER NEED NOR JUSTIFICATION FOR A
SECOND EVIDENTIARY HEARING ON THESE MATTERS ALREADY RESOLVED AS BETWEEN
THESE TWO PARTIES.  (FN22) 

ACCORDINGLY, IN LIGHT OF THE ABOVE, WE AFFIRM THE COURT OF CLAIMS IN
ITS INTERPRETATION OF THE SCOPE OF THE DISPUTES CLAUSE AND WE REVERSE
AS TO ITS FAILURE TO GIVE FINALITY, IN THE SUIT FOR DELAY DAMAGES AND
BREACH OF CONTRACT, TO FACTUAL FINDINGS PROPERLY MADE BY THE BOARD.  IT
IS SO ORDERED. 

FN1  IN THE CONTRACT PRESENTLY BEFORE US THESE CLAUSES READ AS
FOLLOWS: 

"ARTICLE 3.  CHANGES. 

"THE CONTRACTING OFFICER MAY AT ANY TIME, BY A WRITTEN ORDER, AND
WITHOUT NOTICE TO THE SURETIES, MAKE CHANGES IN THE DRAWINGS AND/OR
SPECIFICATIONS OF THIS CONTRACT AND WITHIN THE GENERAL SCOPE THEREOF. 
IF SUCH CHANGES CAUSE AN INCREASE OR DECREASE IN THE AMOUNT DUE UNDER
THIS CONTRACT, OR IN THE TIME REQUIRED FOR ITS PERFORMANCE, AN
EQUITABLE ADJUSTMENT SHALL BE MADE AND THE CONTRACT SHALL BE MODIFIED
IN WRITING ACCORDINGLY.  ANY CLAIM FOR ADJUSTMENT UNDER THIS ARTICLE
MUST BE ASSERTED WITHIN 10 DAYS FROM THE DATE THE CHANGE IS ORDERED:
PROVIDED, HOWEVER, THAT THE CONTRACTING OFFICER, IF HE DETERMINES THAT
THE FACTS JUSTIFY SUCH ACTION, MAY RECEIVE AND CONSIDER, AND WITH THE
APPROVAL OF THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED
REPRESENTATIVE, ADJUST ANY SUCH CLAIM ASSERTED AT ANY TIME PRIOR TO THE
DATE OF FINAL SETTLEMENT OF THE CONTRACT.  IF THE PARTIES FAIL TO AGREE
UPON THE ADJUSTMENT TO BE MADE THE DISPUTE SHALL BE DETERMINED AS
PROVIDED IN ARTICLE 15 HEREOF.  BUT NOTHING PROVIDED IN THIS ARTICLE
SHALL EXCUSE THE CONTRACTOR FROM PROCEEDING WITH THE PROSECUTION OF THE
WORK SO CHANGED. 

"ARTICLE 4.  CHANGED CONDITIONS. 

"SHOULD THE CONTRACTOR ENCOUNTER, OR THE GOVERNMENT DISCOVER, DURING
THE PROGRESS OF THE WORK SUBSURFACE AND/OR LATENT CONDITIONS AT THE
SITE MATERIALLY DIFFERING FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED
IN THE SPECIFICATIONS, OR UNKNOWN CONDITIONS OF AN UNUSUAL NATURE
DIFFERING MATERIALLY FROM THOSE ORDINARILY ENCOUNTERED AND GENERALLY
RECOGNIZED AS INHERING IN WORK OF THE CHARACTER PROVIDED FOR IN THE
PLANS AND SPECIFICATIONS, THE ATTENTION OF THE CONTRACTING OFFICER
SHALL BE CALLED IMMEDIATELY TO SUCH CONDITIONS BEFORE THEY ARE
DISTURBED.  THE CONTRACTING OFFICER SHALL THEREUPON PROMPTLY
INVESTIGATE THE CONDITIONS, AND IF HE FINDS THAT THEY DO SO MATERIALLY
DIFFER THE CONTRACT SHALL BE MODIFIED TO PROVIDE FOR ANY INCREASE OR
DECREASE OF COST AND/OR DIFFERENCE IN TIME RESULTING FROM SUCH
CONDITIONS. 

     *       *         *         *         * 

"ARTICLE 9.  DELAYS - DAMAGES. 

"IF THE CONTRACTOR REFUSES OR FAILS TO PROSECUTE THE WORK, OR ANY
SEPARABLE PART THEREOF, WITH SUCH DILIGENCE AS WILL INSURE ITS
COMPLETION WITHIN THE TIME SPECIFIED IN ARTICLE 1, OR ANY EXTENSION
THEREOF, OR FAILS TO COMPLETE SAID WORK WITHIN SUCH TIME, THE
GOVERNMENT MAY, BY WRITTEN NOTICE TO THE CONTRACTOR, TERMINATE HIS
RIGHT TO PROCEED WITH THE WORK OR SUCH PART OF THE WORK AS TO WHICH
THERE HAS BEEN DELAY.  IN SUCH EVENT THE GOVERNMENT MAY TAKE OVER THE
WORK AND PROSECUTE THE SAME TO COMPLETION, BY CONTRACT OR OTHERWISE,
AND THE CONTRACTOR AND HIS SURETIES SHALL BE LIABLE TO THE GOVERNMENT
FOR ANY EXCESS COST OCCASIONED THE GOVERNMENT THEREBY.  IF THE
CONTRACTOR'S RIGHT TO PROCEED IS SO TERMINATED, THE GOVERNMENT MAY TAKE
POSSESSION OF AND UTILIZE IN COMPLETING THE WORK SUCH MATERIALS,
APPLIANCES, AND PLANT AS MAY BE ON THE SITE OF THE WORK AND NECESSARY
THEREFOR.  IF THE GOVERNMENT DOES NOT TERMINATE THE RIGHT OF THE
CONTRACTOR TO PROCEED, THE CONTRACTOR SHALL CONTINUE THE WORK, IN WHICH
EVENT IT WILL BE IMPOSSIBLE TO DETERMINE THE ACTUAL DAMAGES FOR THE
DELAY AND IN LIEU THEREOF THE CONTRACTOR SHALL PAY TO THE GOVERNMENT AS
FIXED, AGREED, AND LIQUIDATED DAMAGES FOR EACH CALENDAR DAY OF DELAY
UNTIL THE WORK IS COMPLETED OR ACCEPTED THE AMOUNT AS SET FORTH IN THE
SPECIFICATIONS OR ACCOMPANYING PAPERS AND THE CONTRACTOR AND HIS
SURETIES SHALL BE LIABLE FOR THE AMOUNT THEREOF:  PROVIDED, THAT THE
RIGHT OF THE CONTRACTOR TO PROCEED SHALL NOT BE TERMINATED OR THE
CONTRACTOR CHARGED WITH LIQUIDATED DAMAGES BECAUSE OF ANY DELAYS IN THE
COMPLETION OF THE WORK DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL
AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING, BUT
NOT RESTRICTED TO, ACTS OF GOD, OR OF THE PUBLIC ENEMY, ACTS OF THE
GOVERNMENT, ACTS OF ANOTHER CONTRACTOR IN THE PERFORMANCE OF A CONTRACT
WITH THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS,
STRIKES, FREIGHT EMBARGOES, AND UNUSUALLY SEVERE WEATHER OR DELAYS OF
SUBCONTRACTORS DUE TO SUCH CAUSES, IF THE CONTRACTOR SHALL WITHIN 10
DAYS FROM THE BEGINNING OF ANY SUCH DELAY (UNLESS THE CONTRACTING
OFFICER SHALL GRANT A FURTHER PERIOD OF TIME PRIOR TO THE DATE OF FINAL
SETTLEMENT OF THE CONTRACT) NOTIFY THE CONTRACTING OFFICER IN WRITING
OF THE CAUSES OF DELAY, WHO SHALL ASCERTAIN THE FACTS AND THE EXTENT OF
THE DELAY AND EXTEND THE TIME FOR COMPLETING THE WORK WHEN IN HIS
JUDGMENT THE FINDINGS OF FACT JUSTIFY SUCH AN EXTENSION, AND HIS
FINDINGS OF FACT THEREON SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES
HERETO, SUBJECT ONLY TO APPEAL, WITHIN 30 DAYS, BY THE CONTRACTOR TO
THE HEAD OF THE DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED
REPRESENTATIVE, WHOSE DECISION ON SUCH APPEAL AS TO THE FACTS OF DELAY
AND THE EXTENSION OF TIME FOR COMPLETING THE WORK SHALL BE FINAL AND
CONCLUSIVE ON THE PARTIES HERETO." 

FN2  THE DISPUTES CLAUSE IN THE INSTANT CONTRACT READS: 

"ARTICLE 15.  DISPUTES. 

"EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, ALL
DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THIS CONTRACT SHALL
BE DECIDED BY THE CONTRACTING OFFICER SUBJECT TO WRITTEN APPEAL BY THE
CONTRACTOR WITHIN 30 DAYS TO THE HEAD OF THE DEPARTMENT CONCERNED OR
HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE DECISION SHALL BE FINAL AND
CONCLUSIVE UPON THE PARTIES THERETO.  IN THE MEANTIME THE CONTRACTOR
SHALL DILIGENTLY PROCEED WITH THE WORK AS DIRECTED." 

FN3  "NO PROVISION OF ANY CONTRACT ENTERED INTO BY THE UNITED STATES,
RELATING TO THE FINALITY OR CONCLUSIVENESS OF ANY DECISION OF THE HEAD
OF ANY DEPARTMENT OR AGENCY OR HIS DULY AUTHORIZED REPRESENTATIVE OR
BOARD IN A DISPUTE INVOLVING A QUESTION ARISING UNDER SUCH CONTRACT,
SHALL BE PLEADED IN ANY SUIT NOW FILED OR TO BE FILED AS LIMITING
JUDICIAL REVIEW OF ANY SUCH DECISION TO CASES WHERE FRAUD BY SUCH
OFFICIAL OR HIS SAID REPRESENTATIVE OR BOARD IS ALLEGED:  PROVIDED,
HOWEVER, THAT ANY SUCH DECISION SHALL BE FINAL AND CONCLUSIVE UNLESS
THE SAME IS FRADULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY
ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE. 

"SEC. 2.  NO GOVERNMENT CONTRACT SHALL CONTAIN A PROVISION MAKING
FINAL ON A QUESTION OF LAW THE DECISION OF ANY ADMINISTRATIVE OFFICIAL,
REPRESENTATIVE, OR BOARD."  68 STAT. 81, 41 U.S.C.  SECS 321-322 (1964
ED.). 

FN4  THE COURT DID NOT DECIDE WHETHER OR NOT THE SUBSTANDARD
AGGREGATE WAS OR WAS NOT A "CHANGED CONDITION" UNDER ARTICLE 4.  THIS
MATTER IT REFERRED BACK TO THE COMMISSIONER.  IT DID HOLD, HOWEVER,
THAT IF THE CLAIM FELL WITHIN ARTICLE 4, AND IF THE BOARD OF APPEALS
HAD ERRONEOUSLY REFUSED TO HEAR IT AS UNTIMELY, COURT PROCEEDINGS
SHOULD BE SUSPENDED UNTIL APPROPRIATE ADMINISTRATIVE ACTION WAS
COMPLETED.  THIS LATTER DETERMINATION THE COURT OF CLAIMS REFUSED TO
FOLLOW IN NO. 439, UNITED STATES V. ANTHONY GRACE & SONS, INC., POST,
P. 424. 

FN5  BEFORE THE ADVISORY BOARD OF CONTRACT APPEALS THE GOVERNMENT
ASSERTED A CONTRARY POSITION.  SEE N. 7, INFRA. 

FN6  WHEN THE CONTRACT MAKES PROVISION FOR EQUITABLE ADJUSTMENT OF
PARTICULAR CLAIMS, SUCH CLAIMS MAY BE REGARDED AS CONVERTED FROM BREACH
OF CONTRACT CLAIMS TO CLAIMS FOR RELIEF UNDER THE CONTRACT.   SEE
MORRISON-KNUDSEN CO. V. UNITED STATES, 170 CT. CL. 757, 345 F.2D 833
(1965); SHEDD, DISPUTES AND APPEALS:  THE ARMED SERVICES BOARD OF
CONTRACT APPEALS, 29 LAW & CONTEMP.  PROB.  39, 74 (1964); KELLY,
GOVERNMENT CONTRACTORS' REMEDIES:  A REGULATORY REFORM, 18 ADMIN. L.
REV. 145, 147 (1965).  FOR EASE OF REFERENCE WE WILL THEREFORE USE THE
TERM "BREACH OF CONTRACT CLAIMS" TO REFER TO CONTRACT CLAIMS THAT ARE
NOT REDRESSABLE UNDER SPECIFIC CONTRACT ADJUSTMENT PROVISIONS. 

FN7  WITH RESPECT TO THE CONCRETE AGGREGATE CLAIM IN THIS CASE, FOR
EXAMPLE, THE ATTORNEY APPEARING FOR THE CONTRACTING OFFICER MOVED TO
DISMISS FOR LACK OF JURISDICTION ON THE GROUND THAT THE CLAIM WAS FOR
BREACH OF CONTRACT, RATHER THAN FOR AN EQUITABLE ADJUSTMENT UNDER
ARTICLE 4, AND DID NOT FALL WITHIN THE COVERAGE OF THE DISPUTES
CLAUSE. 

FN8  BY CONTRAST, THE PERIOD OF LIMITATIONS FOR CONTRACT ACTIONS IN
THE COURT OF CLAIMS IS SIX YEARS.  28 U.S.C. SEC 2501 (1964 ED.). 

FN9  THE GOVERNMENT DOES ASSERT THAT THE NASA BOARD OF CONTRACT
APPEALS "APPARENTLY ASSERTS JURISDICTION FOR SOME PURPOSES OVER CLAIMS
FOR BREACH OF CONTRACT," CITING DOYLE & RUSSELL, INC., 1965-2 B.C.A.
PARA 4912.  THE PURPOSE FOR WHICH THE BOARD ASSERTED JURISDICTION,
HOWEVER, WAS TO DETERMINE WHETHER IT HAD AUTHORITY TO GRANT RELIEF, AND
THE BOARD ALSO NOTED THAT THE CONTRACTOR HAD ASSERTED A CLAIM FOR
ADDITIONAL COMPENSATION UNDER THE CHANGES CLAUSE. 

FN10  THE ASBCA HAS ALSO INTERPRETED THIS CHARTER PROVISION AS
RECOGNIZING THE NARROW INTERPRETATION OF THE DISPUTES CLAUSE.  LENOIR
WOOD FINISHING CO., 1964 B.C.A., PARA 4111, AT 20,060-20,061. 

FN11  OF COURSE SUCH FINDINGS MIGHT ALSO PROVIDE THE FOUNDATION FOR
ACTION BY OTHER AGENCIES AUTHORIZED TO COMPROMISE THE CLAIM OR
OTHERWISE TO GRANT RELIEF, SUCH AS THE CONTRACT ADJUSTMENT BOARDS, SEE
TEXT, INFRA.  WITH RESPECT TO THE WHOLE QUESTION OF SETTLEMENT, THE
GOVERNMENT CONTENDS THAT THE EARLY RESTRICTIVE CONSTRUCTION OF THE
DISPUTES CLAUSE WAS BASED IN PART ON THE BELIEF THAT THE VARIOUS
DEPARTMENTS AND THEIR CONTRACTING OFFICERS HAD NO AUTHORITY TO SETTLE
PURE BREACH OF CONTRACT CLAIMS, WHICH VIEW IS ASSERTED TO HAVE NOW BEEN
ABANDONED.  SEE CANNON CONSTR.  CO. V. UNITED STATES, 162 CT. CL. 94,
319 F.2D 173 (1963).  SINCE THE AUTHORITY OF CONTRACTING OFFICERS TO
GRANT RELIEF FOR ALL CLAIMS, THROUGH SETTLEMENT, IS NOW ESTABLISHED,
THE ARGUMENT CONTINUES, ALL CONTRACT CLAIMS MAY NOW BE THE BASIS OF A
DISPUTE REVIEWABLE UNDER THE DISPUTES CLAUSE.  THE ERROR IN THE
ARGUMENT IS THAT IT FAILS TO DIFFERENTIATE BETWEEN AN ADVANCE AGREEMENT
TO BE BOUND BY THE DECISION OF THE CONTRACTING OFFICER AND THE BOARD
RESPECTING AN EQUITABLE ADJUSTMENT AND THE POWER, WITHOUT BEING BOUND
PRIOR TO AGREEMENT, MUTUALLY TO SETTLE DIFFERENCES.  THIS DISTINCTION
HAS NOT ESCAPED THE ASBCA, WHICH HAS RULED THAT ALTHOUGH IT SUBSCRIBES
TO THE VIEW THAT CONTRACTING OFFICERS MAY NEGOTIATE SETTLEMENTS IT HAS
NO POWER UNDER THE DISPUTES CLAUSE TO COMPEL NEGOTIATION OR
SETTLEMENT.  LENOIR WOOD FINISHING CO., 1964 B.C.A., PARA 4111, AT
20,061; ACCORD, JOHN MCSHAIN, INC., 1965-1 B.C.A., PARA 4844 (GSBCA). 

FN12  THE COMMITTEE REPORTS ON PUBLIC LAW 85-804 INDICATE THAT
CONGRESS WAS WELL AWARE THAT THE POWERS CONFERRED UNDER TITLE 11 OF THE
FIRST WAR POWERS ACT HAD BEEN USED "TO EXTEND THE TIME OF PERFORMANCE
ON CONTRACTS AND TO WAIVE LIQUIDATED DAMAGES PROVISIONS" AND THAT
"AMENDMENTS WITHOUT CONSIDERATION HAVE ALSO BEEN USED TO PROVIDE RELIEF
FOR DEFENSE CONTRACTORS WHERE LOSSES HAVE RESULTED FROM INEQUITABLE
ACTION OF THE GOVERNMENT  ...  ."  H.R. REP. NO. 2232, 85TH CONG., 2D
SESS., 4, 6 (1958); ACCORD, S. REP. NO. 2281, 85TH CONG., 2D SESS., 4,
5 (1958).  THE HOUSE SUBCOMMITTEE SAID THAT IT HAD GIVEN PARTICULAR
ATTENTION TO THE REGULATIONS AND ADMINISTRATIVE PROCEDURES EMPLOYED
UNDER TITLE II AND HAD FOUND THEM TO BE PROPER.  H.R. REP. NO. 2232,
85TH CONG., 2D SESS., 7 (1958).  CONGRESS THUS ACTED UPON THE CLEAR
UNDERSTANDING THAT CERTAIN CLAIMS OF THE TYPE THE GOVERNMENT NOW
CONTENDS TO BE COVERED BY THE DISPUTES CLAUSE WERE NOT COGNIZABLE UNDER
NORMAL CONTRACT ADJUSTMENT PROCEDURES, THUS NECESSITATING THE GRANT OF
EXTRAORDINARY AUTHORITY IN PUBLIC LAW 85-804. 

FN13  A TYPICAL SUSPENSION OF WORK CLAUSE PROVIDED: 

"THE CONTRACTING OFFICER MAY ORDER THE CONTRACTOR TO SUSPEND ALL OR
ANY PART OF THE WORK FOR SUCH PERIOD OF TIME AS MAY BE DETERMINED BY
HIM TO BE NECESSARY OR DESIRABLE FOR THE CONVENIENCE OF THE
GOVERNMENT.  UNLESS SUCH SUSPENSION UNREASONABLY DELAYS THE PROGRESS OF
THE WORK AND CAUSES ADDITIONAL EXPENSE OR LOSS TO THE CONTRACTOR, NO
INCREASE IN CONTRACT PRICE WILL BE ALLOWED.  IN THE CASE OF SUSPENSION
OF ALL OR ANY PART OF THE WORK FOR AN UNREASONABLE LENGTH OF TIME,
CAUSING ADDITIONAL EXPENSE OR LOSS, NOT DUE TO THE FAULT OR NEGLIGENCE
OF THE CONTRACTOR, THE CONTRACTING OFFICER SHALL MAKE AN EQUITABLE
ADJUSTMENT IN THE CONTRACT PRICE AND MODIFY THE CONTRACT ACCORDINGLY." 
BARNET BREZNER, 1961-1 B.C.A., PARA 2895, AT 15,119 (ASBCA).  SEE ALSO
T.C. BATESON CONSTR. CO., 1960-1 B.C.A., PARA 2552, AT 12,319 (ASBCA). 

FN14  THIS CLAUSE PROVIDES: 

"(A)  THE CONTRACTING OFFICER MAY ORDER THE CONTRACTOR IN WRITING TO
SUSPEND ALL OR ANY PART OF THE WORK FOR SUCH PERIOD OF TIME AS HE MAY
DETERMINE TO BE APPROPRIATE FOR THE CONVENIENCE OF THE GOVERNMENT. 

"(B)  IF, WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, THE
PERFORMANCE OF ALL OR ANY PART OF THE WORK IS FOR AN UNREASONABLE
PERIOD OF TIME, SUSPENDED, DELAYED, OR INTERRUPTED BY AN ACT OF THE
CONTRACTING OFFICER IN THE ADMINISTRATION OF THE CONTRACT, OR BY HIS
FAILURE TO ACT WITHIN THE TIME SPECIFIED IN THE CONTRACT (OR IF NO TIME
IS SPECIFIED WITHIN A REASONABLE TIME), AN ADJUSTMENT SHALL BE MADE BY
THE CONTRACTING OFFICER FOR ANY INCREASE IN THE COST OF PERFORMANCE OF
THE CONTRACT (EXCLUDING PROFIT) NECESSARILY CAUSED BY THE UNREASONABLE
PERIOD OF SUCH SUSPENSION, DELAY, OR INTERRUPTION, AND THE CONTRACT
SHALL BE MODIFIED IN WRITING ACCORDINGLY.  NO ADJUSTMENT SHALL BE MADE
TO THE EXTENT THAT PERFORMANCE BY THE CONTRACTOR WOULD HAVE BEEN
PREVENTED BY OTHER CAUSES EVEN IF THE WORK HAD NOT BEEN SO SUSPENDED,
DELAYED, OR INTERRUPTED.  NO CLAIM UNDER THIS CLAUSE SHALL BE ALLOWED
(I) FOR ANY COSTS INCURRED MORE THAN TWENTY DAYS BEFORE THE CONTRACTOR
SHALL HAVE NOTIFIED THE CONTRACTING OFFICER IN WRITING OF THE ACT OR
FAILURE TO ACT INVOLVED (BUT THIS REQUIREMENT SHALL NOT APPLY WHERE A
SUSPENSION ORDER HAS BEEN ISSUED), AND (II) UNLESS THE CLAIM, IN AN
AMOUNT STATED, IS ASSERTED IN WRITING AS SOON AS PRACTICABLE AFTER THE
TERMINATION OF SUCH SUSPENSION, DELAY, OR INTERRUPTION BUT NOT LATER
THAN THE DATE OF FINAL PAYMENT UNDER THE CONTRACT.  ANY DISPUTE
CONCERNING A QUESTION OF FACT ARISING UNDER THIS CLAUSE SHALL BE
SUBJECT TO THE DISPUTES CLAUSE." 

FN15  OF COURSE, IF THE FINDINGS MADE BY THE BOARD ARE NOT RELEVANT
TO A DISPUTE OVER WHICH IT HAS JURISDICTION, SUCH FINDINGS WOULD HAVE
NO FINALITY WHATSOEVER.  SEE PART II, SUPRA; MORRISON-KNUDSEN CO. V.
UNITED STATES, 170 CT. CL. 757, 345 F.2D 833; UTAH CONSTR.  & MINING
CO. V. UNITED STATES, 168 CT. CL. 522, 539-540, 339 F.2D 606, 617
(DISSENTING OPINION OF JUDGE DAVIS). 

FN16  SEE THE EXAMPLE GIVEN BY THE COURT OF CLAIMS BELOW, 168 CT. CL.
522, 530, 339 F.2D 606, 611, WHERE THE ADDITION OF THE ADJECTIVE
"UNREASONABLE" WAS FELT SUFFICIENT TO TRANSFORM A DISPUTE UNDER THE
CONTRACT INTO A BREACH OF CONTRACT CLAIM.  THIS POSITION IS NOW
REJECTED.  SEE N. 6, SUPRA, AND MORRISON-KNUDSEN CO. V. UNITED STATES,
SUPRA. 

FN17  THE COURT OF CLAIMS OBSERVED, FOR EXAMPLE, THAT THE TESTIMONY
RELATING TO THE SHIELD WINDOW CLAIM TOOK THREE DAYS OF THE BOARD'S TIME
AND THE TRANSCRIPT RUNS 453 PAGES IN LENGTH. 

FN18  JUDGE DAVIS, IN DISSENT BELOW, WROTE: 

"THIS IS THE SAME GENERAL POLICY WHICH NOURISHES THE DOCTRINE OF
COLLATERAL ESTOPPEL.  THE COURT IS RELUCTANT, HOWEVER, TO APPLY THAT
PRINCIPLE TO THESE ADMINISTRATIVE FINDINGS BECAUSE OF THE NATURE AND
GENESIS OF THE BOARDS.  THE WUNDERLICH ACT, AS APPLIED IN BIANCHI,
SHOULD DISPEL THESE DOUBTS.  THE SUPREME COURT MADE IT PLAIN THAT
CONGRESS INTENDED THE BOARDS (AND LIKE ADMINISTRATIVE REPRESENTATIVES)
TO BE THE FACT-FINDERS WITHIN THEIR CONTRACT AREA OF COMPETENCE, JUST
AS THE INTERSTATE COMMERCE COMMISSION, THE FEDERAL TRADE COMMISSION,
AND THE NATIONAL LABOR RELATIONS BOARD ARE THE FACTFINDERS FOR OTHER
PURPOSES.  IN THE LIGHT OF BIANCHI'S EVALUATION OF THE STATUTORY
POLICY, WE SHOULD NOT SQUINT TO GIVE A CRABBED READING TO THE BOARD'S
AUTHORITY WHERE IT HAS STAYED WITHIN ITS SPHERE, BUT SHOULD ACCEPT IT
AS THE PRIMARY FACT-FINDING TRIBUNAL WHOSE FACTUAL DETERMINATIONS (IN
DISPUTES UNDER THE CONTRACT) MUST BE RECEIVED, IF VALID, IN THE SAME
WAY AS THOSE OF OTHER COURTS OR OF THE INDEPENDENT ADMINISTRATIVE
AGENCIES.  UNDER THE MORE MODERN VIEW, THE FINDINGS OF THE LATTER, AT
LEAST WHEN ACTING IN AN ADJUDICATORY CAPACITY, ARE CONSIDERED FINAL,
EVEN IN A SUIT NOT DIRECTLY RELATED TO THE ADMINISTRATIVE PROCEEDING,
UNLESS THERE IS SOME GOOD REASON FOR A NEW JUDICIAL INQUIRY INTO THE
SAME FACTS.  SEE DAVIS, ADMINISTRATIVE LAW 566 (1951); FAIRMONT
ALUMINUM CO. V. COMMISSIONER, 222 F.2D 622, 627 (4TH CIR., 1955).  THE
ONLY REASONS THE MAJORITY NOW OFFERS FOR A JUDICIAL RE-TRIAL OF FACTUAL
QUESTIONS ALREADY DETERMINED BY VALID BOARD FINDINGS ARE THE SAME
POLICY CONSIDERATIONS WHICH CONGRESS AND THE SUPREME COURT HAVE ALREADY
DISCARDED IN THE WUNDERLICH ACT AND THE BIANCHI OPINION."  168 CT. CL.,
AT 541-542, 339 F.2D, AT 618. 

FOR A FREQUENTLY QUOTED AND SIMILAR POSITION RELATING TO THE FINALITY
TO BE GIVEN TO FINDINGS OF AN ARBITRATOR, SEE BOWER V. EASTERN
AIRLINES, 214 F.2D 623, 626. 

FN19  PEARSON V. WILLIAMS, 202 U.S. 281; CHURCHILL TABERNACLE V. FCC,
81 U.S. APP. D.C.  411, 160 F.2D 244. 

FN20  SEE GENERALLY, 2 DAVIS, ADMINISTRATIVE LAW TREATISE SECS 18.01
19.12 (1958); GRONER & STERNSTEIN, RES JUDICATA IN FEDERAL
ADMINISTRATIVE LAW, 39 IOWA L. REV. 300 (1954).    FN21  COMMISSIONER
V. SUNNEN, 333 U.S. 591, AND UNITED STATES V. INTERNATIONAL BUILDING
CO., 345 U.S. 502, CLEARLY CONTEMPLATED THE APPLICATION OF PRINCIPLES
OF RES JUDICATA TO ADMINISTRATIVE FINDINGS, ALTHOUGH FOR OTHER REASONS
IN THOSE CASES, RES JUDICATA WAS NOT APPLIED. 

FN22  HAD THE CONTRACTOR NOT SOUGHT AN EXTENSION OF TIME IN THIS
CASE, HE WOULD HAVE FORFEITED THIS RELIEF "UNDER THE CONTRACT" FOR
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES.  BUT, AT THE SAME TIME, THE
FINDINGS WHICH THE BOARD MADE IN CONNECTION WITH THE TIME EXTENSION
CLAIM WOULD NOT THEN HAVE BEEN AVAILABLE FOR INTRODUCTION IN THE BREACH
OF CONTRACT ACTION FOR RELIEF NOT AVAILABLE UNDER THE CONTRACT. 
..END :







UNITED STATES V. GRACE & SONS 384 U.S. 424 


NO. 439.  ARGUED MARCH 23, 1966.  - DECIDED JUNE 6, 1966.  - 170 CT. CL.
688, 345 F.2D 808, REVERSED. 


RESPONDENT WAS THE SUCCESSFUL BIDDER ON AN INVITATION FOR BIDS TO
CONSTRUCT MILITARY HOUSING.  IT RECEIVED A LETTER OF ACCEPTABILITY
WHICH PROVIDED THAT UNLESS THE CONTRACT WERE CLOSED IN A SPECIFIED TIME
THE AIR FORCE COULD CANCEL THE BID, WHICH DECISION, UNDER A DISPUTES
CLAUSE, WAS FINAL UNLESS APPEALED TO THE BOARD OF CONTRACT APPEALS
WITHIN 30 DAYS.  A DISAGREEMENT AROSE, THE CONTRACT WAS NOT CLOSED AND
THE BID WAS CANCELLED.  RESPONDENT APPEALED TO THE BOARD OF CONTRACT
APPEALS, WHICH DISMISSED THE APPEAL AS UNTIMELY WITHOUT CONSIDERING THE
MERITS OF THE CASE.  RESPONDENT THEN FILED SUIT IN THE COURT OF CLAIMS
TO RECOVER ITS BID DEPOSIT AND FOR DAMAGES.  THAT COURT HELD THAT THE
APPEAL TO THE BOARD WAS TIMELY AND THAT THE BOARD ERRED IN NOT REACHING
THE MERITS.  THE COURT THEN REMANDED THE CASE TO ITS TRIAL COMMISSIONER
TO MAKE A RECORD AND CONSIDER THE MERITS.  THE GOVERNMENT CHALLENGED
THIS PROCEDURE.  HELD:  THE COURT OF CLAIMS SHOULD HAVE RETURNED THE
DISPUTE TO THE BOARD FOR CONSIDERATION OF THE MERITS, IN ACCORDANCE
WITH THE CONTRACTUAL AGREEMENT OF THE PARTIES.  UNITED STATES V. CARLO
BIANCHI & CO., 373 U.S. 709, 717-718.   PP. 428-433. 

UNITED STATES V. ANTHONY GRACE & SONS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN UNITED STATES V. CARLO BIANCHI & CO., 373 U.S. 709, WE HELD THAT,
ASIDE FROM QUESTIONS OF FRAUD, A REVIEWING COURT IS LIMITED TO THE
ADMINISTRATIVE RECORD MADE BELOW IN DETERMINING THE FINALITY TO BE
GIVEN DEPARTMENTAL DECISIONS AND FINDINGS MADE BY A BOARD OF CONTRACT
APPEALS PURSUANT TO A STANDARD GOVERNMENT DISPUTES CLAUSE.  IN THE
PRESENT CASE WE ARE CALLED UPON TO DECIDE WHETHER THE REVIEWING COURT
OR THE BOARD OF CONTRACT APPEALS SHOULD MAKE THE ORIGINAL RECORD ON AN
ISSUE WHICH THE BOARD DID NOT RESOLVE BECAUSE IT ERRONEOUSLY DISMISSED
THE APPEAL BEFORE IT AS UNTIMELY. 

THE QUESTION IS FRAMED BY THE FOLLOWING FACTS.  THE DEPARTMENT OF THE
AIR FORCE ISSUED AN INVITATION FOR BIDS FOR THE CONSTRUCTION OF A
MILITARY HOUSING PROJECT AT TOPSHAM AIR FORCE STATION, MAINE.  THE
INVITATION INCLUDED A TENTATIVE MINIMUM WAGE SCHEDULE WHICH THE
CONTRACTOR WOULD HAVE TO MEET.  IT ALSO ADVISED THAT THE WAGE SCHEDULE
WOULD BE FINALLY REDETERMINED BY THE SECRETARY OF LABOR NOT MORE THAN
90 DAYS PRIOR TO THE COMMENCEMENT OF CONSTRUCTION AND THAT THE FEDERAL
HOUSING COMMISSIONER WOULD THEN ADJUST THE CONTRACT PRICE TO REFLECT
ANY CHANGES MADE IN THE WAGE SCHEDULES.   (FN1)  IN ADDITION, THE
SUCCESSFUL BIDDER WAS REQUIRED TO COMPLETE CERTAIN PREPARATORY ACTS IN
ORDER TO CLOSE THE CONTRACT AND TO POST A $25,000 DEPOSIT TO ENSURE THE
CLOSING OF THE CONTRACT.  RESPONDENT, ANTHONY GRACE & SONS, INC., WAS
THE LOW ACCEPTABLE BIDDER AND A LETTER OF ACCEPTABILITY WAS SENT TO IT.
THAT LETTER REMINDED RESPONDENT THAT FAILURE TO CLOSE THE CONTRACT
WITHIN A SPECIFIED NUMBER OF DAYS WAS SUFFICIENT JUSTIFICATION TO
WARRANT THE DEPARTMENT OF THE AIR FORCE IN CANCELLING THE BID AND
LETTER OF ACCEPTABILITY, IN RETAINING THE DEPOSIT FOR LIQUIDATED
DAMAGES AND IN DETERMINING ADDITIONAL LIABILITY FOR ACTUAL DAMAGES.  A
DISPUTES CLAUSE IN THE LETTER OF ACCEPTABILITY MADE SUCH DECISION BY
THE DEPARTMENT OF THE AIR FORCE FINAL UNLESS, WITHIN 30 DAYS FROM THE
RECEIPT OF THE DECISION, RESPONDENT APPEALED TO THE ARMED SERVICES
BOARD OF CONTRACT APPEALS, WHOSE DECISION WOULD BE FINAL AND CONCLUSIVE
UNLESS FRAUDULENT OR CAPRICIOUS OR ARBITRARY, OR SO GROSSLY ERRONEOUS
AS NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE.   (FN2)  AFTER RECEIVING SUBSEQUENT WAGE SCHEDULES FROM THE
SECRETARY OF LABOR, RESPONDENT CONCLUDED THAT CERTAIN WORK WAS BEING
PLACED IN HIGHER WAGE CATEGORIES THAN WAS PROVIDED IN THE
SPECIFICATIONS WHICH ACCOMPANIED THE BID INVITATION.  ON THE BASIS OF
THIS ALLEGED DEVIATION FROM THE ORIGINAL SPECIFICATIONS RESPONDENT
ASKED FIRST THE HOUSING COMMISSIONER AND THEN THE DEPARTMENT OF THE AIR
FORCE TO RAISE THE CONTRACT PRICE.  THESE REQUESTS WERE REFUSED AND
RESPONDENT THEN NOTIFIED THE AIR FORCE THAT IT WOULD BE UNABLE TO
COMPLETE THE CLOSING UNTIL THIS MATTER WAS CLEARED UP.  IN THE ENSUING
EXCHANGE OF LETTERS, THE CONTRACTING OFFICER INFORMED RESPONDENT THAT
ITS BID AND THE LETTER OF ACCEPTABILITY WERE BEING CANCELED AND ITS
DEPOSIT WAS BEING RETAINED.  PURSUANT TO THE DISPUTES CLAUSE,
RESPONDENT APPEALED THIS DECISION TO THE ARMED SERVICES BOARD OF
CONTRACT APPEALS, WHICH DISMISSED THE APPEAL AS OUT OF TIME WITHOUT
CONSIDERING THE MERITS OF THE CASE.  RESPONDENT THEN SUED IN THE COURT
OF CLAIMS TO RECOVER ITS DEPOSIT AND FOR DAMAGES RESULTING FROM THE
GOVERNMENT'S ALLEGED WRONGFUL CANCELLATION.  THAT COURT CONCLUDED THAT
THE APPEAL TO THE BOARD WAS TIMELY AND THAT THE BOARD HAD ERRED IN NOT
REACHING THE MERITS OF THE CASE.  WITH JUDGES DAVIS AND LARAMORE
DISSENTING, THE COURT THEN DECIDED TO REMAND THE CASE TO ITS OWN TRIAL
COMMISSIONER, RATHER THAN TO THE BOARD OF CONTRACT APPEALS, TO MAKE A
RECORD AND CONSIDER THE CASE ON ITS MERITS.  THE GOVERNMENT ASKED US TO
GRANT CERTIORARI TO CONSIDER WHETHER THIS WAS IN VIOLATION OF THE
PRINCIPLES ANNOUNCED IN THE WUNDERLICH ACT  (FN3) AND UNITED STATES V.
CARLO BIANCHI & CO., SUPRA.  WE GRANTED CERTIORARI, 382 U.S. 901, AND
WE NOW REVERSE. 

THIS QUESTION WAS ANTICIPATED IN BIANCHI, SUPRA, WHERE WE CONSIDERED
WHAT A REVIEWING COURT SHOULD DO WHEN THE ADMINISTRATIVE RECORD IS
DEFECTIVE, OR INADEQUATE OR REVEALS THE COMMISSION OF A PREJUDICIAL
ERROR.  TWO SUGGESTIONS WERE GIVEN: 

"FIRST, THERE WOULD UNDOUBTEDLY BE SITUATIONS IN WHICH THE COURT
WOULD BE WARRANTED, ON THE BASIS OF THE ADMINISTRATIVE RECORD, IN
GRANTING JUDGMENT FOR THE CONTRACTOR WITHOUT THE NEED FOR FURTHER
ADMINISTRATIVE ACTION.  SECOND, IN SITUATIONS WHERE THE COURT BELIEVED
THAT THE EXISTING RECORD DID NOT WARRANT SUCH A COURSE, BUT THAT THE
DEPARTMENTAL DETERMINATION COULD NOT BE SUSTAINED UNDER THE STANDARDS
LAID DOWN BY CONGRESS, WE SEE NO REASON WHY THE COURT COULD NOT STAY
ITS OWN PROCEEDINGS PENDINGS SOME FURTHER ACTION BEFORE THE AGENCY
INVOLVED.  CF. PENNSYLVANIA R. CO. V. UNITED STATES, 363 U.S. 202. 
SUCH A STAY WOULD CERTAINLY BE JUSTIFIED WHERE THE DEPARTMENT HAD
FAILED TO MAKE ADEQUATE PROVISION FOR A RECORD THAT COULD BE SUBJECTED
TO JUDICIAL SCRUTINY, FOR IT WAS CLEARLY PART OF THE LEGISLATIVE
PURPOSE TO ACHIEVE UNIFORMITY IN THIS RESPECT."  373 U.S. 709, 717
718. 

THE POLICY REFLECTED IN THIS LANGUAGE, WHICH REQUIRES UTILIZATION OF
THE ADMINISTRATIVE PROCEDURES CONTRACTUALLY BARGAINED FOR, WAS CLEARLY
INTENDED BY CONGRESS, SEE H.R. REP. NO. 1380, 83D CONG., 2D SESS.
(1954); UNITED STATES V. CARLO BIANCHI & CO., SUPRA, AT 715-718, AND IT
HAS BEEN CONSISTENTLY REFLECTED IN A LONG LINE OF DECISIONS BY THIS
COURT.  SEE UNITED STATES V. WUNDERLICH, 342 U.S. 98; UNITED STATES V.
MOORMAN, 338 U.S. 457; UNITED STATES V. HOLPUCH CO., 328 U.S. 234;
UNITED STATES V. BLAIR, 321 U.S. 730; UNITED STATES V. CALLAHAN WALKER
CONSTRUCTION CO., 317 U.S. 56; KIHLBERG V. UNITED STATES, 97 U.S. 398. 
PRE-EMINENTLY, THIS POLICY IS GROUNDED ON A RESPECT FOR THE PARTIES'
RIGHTS TO CONTRACT AND TO PROVIDE FOR THEIR OWN REMEDIES.  SEE UNITED
STATES V. UTAH CONSTRUCTION & MINING CO., ANTE, P. 394; UNITED STATES
V. MOORMAN, SUPRA, AT 461-462.  BUT, BEYOND THAT, THERE IS ALSO A
BELIEF THAT RESORT TO ADMINISTRATIVE PROCEDURES IS AN EXPEDITIOUS WAY
TO SETTLE DISPUTES, CONDUCIVE TO SPEED AND ECONOMY.  (FN4)  UNITED
STATES V. BLAIR, SUPRA, AT 735.  SUCH PROCEDURES ALSO FACILITATE A
DEPARTMENT'S SUPERVISORY CONTROL OVER CONTRACTING OFFICERS AND PERHAPS
ENHANCE THE POSSIBILITY OF HARMONIOUS AGREEMENT.  IBID.  FURTHER,
RELIANCE UPON A FEW EXPERT AGENCIES TO MAKE THE RECORDS AND INITIALLY
TO PASS ON THE MERITS OF THE CLAIMS PROPERLY PRESENTED TO THEM WILL
LEAD TO GREATER UNIFORMITY IN THE IMPORTANT BUSINESS OF FAIRLY
INTERPRETING GOVERNMENT CONTRACTS. 

THERE CAN BE NO DOUBT THAT THE DISPUTE HERE OVER THE DECISION BY THE
DEPARTMENT OF THE AIR FORCE TO CANCEL RESPONDENT'S COMMITMENTS UNDER
THE BID AND LETTER OF ACCEPTABILITY AND TO RETAIN THE DEPOSIT IS ONE
WHICH THE PARTIES CONTRACTUALLY PROVIDED SHOULD BE HEARD AND DECIDED BY
THE ADMINISTRATIVE PROCESS.  BARRING SOME COMPELLING POLICY REASON TO
DISREGARD THIS PROVISION, THE CONTRACTOR SHOULD BE HELD TO ITS
CONTRACTUAL AGREEMENT EVEN AT THIS STAGE IN THE LITIGATION. 

IT IS TRUE THAT THIS COURT HAS SAID ON SEVERAL OCCASIONS THAT THE
PARTIES WILL NOT BE REQUIRED TO EXHAUST THE ADMINISTRATIVE PROCEDURE IF
IT IS SHOWN BY CLEAR EVIDENCE THAT SUCH PROCEDURE IS "INADEQUATE OR
UNAVAILABLE."  UNITED STATES V. HOLPUCH CO., SUPRA, AT 240; UNITED
STATES V. BLAIR, SUPRA, AT 736-737.  IT MAY BE THAT THE CONTRACTING
OFFICER, H.B. ZACHRY CO. V. UNITED STATES, 170 CT. CL. 115, 344 F.2D
352, OR THE BOARD OF CONTRACT APPEALS, SOUTHEASTERN OIL FLORIDA, INC.
V. UNITED STATES, 127 CT. CL. 480, 115 F. SUPP. 198, SO CLEARLY REVEALS
AN UNWILLINGNESS TO ACT AND TO COMPLY WITH THE ADMINISTRATIVE
PROCEDURES IN THE CONTRACT THAT THE CONTRACTOR OR SUPPLIER IS JUSTIFIED
IN CONCLUDING THAT THOSE PROCEDURES HAVE THEREBY BECOME "UNAVAILABLE." 
SIMILARLY, THERE MAY BE OCCASIONS WHEN THE LACK OF AUTHORITY OF EITHER
THE CONTRACTING OFFICER OR THE ADMINISTRATIVE APPEALS BOARD IS SO
APPARENT THAT THE CONTRACTOR OR SUPPLIER MAY JUSTIFIABLY CONCLUDE THAT
FURTHER ADMINISTRATIVE RELIEF IS "UNAVAILABLE."  (FN5)  BUT THESE
CIRCUMSTANCES ARE CLEARLY THE EXCEPTIONS RATHER THAN THE RULE AND THE
INADEQUACY OR UNAVAILABILITY OF ADMINISTRATIVE RELIEF MUST CLEARLY
APPEAR BEFORE A PARTY IS PERMITTED TO CIRCUMVENT HIS OWN CONTRACTUAL
AGREEMENT.  WHEN THE BOARD FAILS TO REACH AND DECIDE AN ISSUE BECAUSE
IT DISPOSES OF THE APPEAL ON ANOTHER GROUND - HERE THE UNTIMELINESS OF
THE APPEAL - WHICH THE COURT OF CLAIMS LATER REJECTS, THERE IS NO SOUND
REASON TO PRESUME THAT THE BOARD WILL NOT PROMPTLY AND FAIRLY DEAL WITH
THE MERITS OF THE UNDECIDED ISSUE IF IT IS GIVEN THE CHANCE TO DO SO.
(FN6) 

THE COURT OF CLAIMS IN THIS CASE ATTEMPTED TO JUSTIFY BYPASSING THE
BOARD OF CONTRACT APPEALS BECAUSE IT FELT THE DISPUTE COULD BE RESOLVED
MORE SPEEDILY IF ITS TRIAL COMMISSIONER MADE THE RECORD AND INITIALLY
PASSED ON THE MERITS.  THE DISSENTING JUDGES QUESTION THE FACTUAL
ACCURACY OF THE PREMISES.  (FN7) EVEN IF THE PREMISES WERE SOUND,
HOWEVER, THIS ARGUMENT FALLS SUBSTANTIALLY SHORT OF ESTABLISHING THAT
THE ADMINISTRATIVE ROUTE IS INADEQUATE OR UNAVAILABLE.  (FN8) 

NOR IS IT PERSUASIVE TO SAY THAT THE ADMINISTRATIVE REMEDY IS
INADEQUATE IN THIS CASE BECAUSE THE BOARD OF CONTRACT APPEALS CONSIDERS
ITSELF UNABLE TO REVIEW WAGE DETERMINATIONS BY THE SECRETARY OF LABOR
OR THE CORRESPONDING BID ADJUSTMENTS BY THE FEDERAL HOUSING
COMMISSIONER.  THE NECESSITY OF DETERMINING THE VALIDITY OF THESE
DETERMINATIONS AND ADJUSTMENTS IS SPECULATIVE AT BEST.  THE ISSUE
INVOLVED HERE IS WHETHER THE DEPARTMENT OF THE AIR FORCE WAS JUSTIFIED
IN CANCELLING RESPONDENT'S COMMITMENTS, RETAINING ITS DEPOSIT AND
ITEMIZING CERTAIN DAMAGES.  THIS RAISES QUESTIONS CONCERNING THE
PROPRIETY OF RESPONDENT'S FAILURE TO PRESS FORWARD TO CLOSE THE
CONTRACT REGARDLESS OF AN OUTSTANDING WAGE DISPUTE.  AND THIS, IN TURN,
REQUIRES AN ANALYSIS OF THE ORIGINAL BID INVITATION AND ACCOMPANYING
SPECIFICATIONS, THE CUSTOM AND USAGE OF THE TRADE, AND THE SUBSEQUENT
CONDUCT OF BOTH PARTIES TO THIS DISPUTE.  OBVIOUSLY THERE ARE FACTUAL
ISSUES TO BE RESOLVED AND THAT TASK IS INITIALLY FOR THE BOARD, NOT THE
COURT.  (FN9) 

ANOTHER ARGUMENT ADVANCED BY THE COURT OF CLAIMS IS THAT IT LACKS
AUTHORITY TO REMAND THE CASE AND THE BOARD MAY REFUSE TO CONSIDER IT
AGAIN.  AT THIS STAGE OF THE PROCEEDINGS THIS FEAR MAY BE DISMISSED AS
A HYPOTHETICAL ONE.  THERE WILL BE TIME ENOUGH LATER, IF THIS FEAR EVER
MATERIALIZES, TO CONSIDER WHETHER THE REVIEWING COURT WOULD THEN BE
AUTHORIZED TO MAKE ITS OWN RECORD.  IN THIS REGARD IT SHOULD BE NOTED
THAT, IN BIANCHI, SUPRA, WE SUGGESTED ONE WAY OF DEALING WITH THIS
PROBLEM: 

"AND IN ANY CASE IN WHICH THE DEPARTMENT FAILED TO REMEDY THE
PARTICULAR SUBSTANTIVE OR PROCEDURAL DEFECT OR INADEQUACY, THE SANCTION
OF JUDGMENT FOR THE CONTRACTOR WOULD ALWAYS BE AVAILABLE TO THE
COURT."  373 U.S. 709, 718. 

SEE ALSO INTERSTATE COMMERCE COMM'N V. ATLANTIC COAST LINE R. CO.,
383 U.S. 576, 601.  (FN10) REVERSED. 

FN1  SEE THE DAVIS-BACON ACT, 46 STAT. 1494, AS AMENDED, 40 U.S.C.
SEC 276A (1964 ED.).  NO PROVISION WAS MADE IN THE BID INVITATION OR
LETTER OF ACCEPTABILITY FOR REVIEW OF THE DETERMINATIONS OF THE
SECRETARY OF LABOR OR THE HOUSING COMMISSIONER.  THE ARMED SERVICES
BOARD OF CONTRACT APPEALS HAS HELD THAT IN THESE CIRCUMSTANCES IT IS
WITHOUT JURISDICTION TO REVIEW SUCH DETERMINATIONS.  LEN CO. &
ASSOCIATES, 1962 B.C.A., PARA 3498, 17,854 (ASBCA).  THIS COURT HAS
INDICATED THAT, AS TO THE WAGE STANDARDS SET BY THE SECRETARY OF LABOR,
THERE IS NO JUDICIAL REVIEW.  UNITED STATES V. BINGHAMTON CONSTRUCTION
CO., 347 U.S. 171, 177. 

FN2  THIS CLAUSE, WHICH VARIES SOMEWHAT FROM THE STANDARD DISPUTES
CLAUSE, READS AS FOLLOWS: 

FAILURE TO PERFORM ALL OBLIGATIONS PRIOR TO THE TIME PRESCRIBED FOR
CLOSING WILL BE JUST CAUSE FOR CANCELLING ALL COMMITMENTS UNDERTAKEN
WITH YOU IN CONNECTION WITH THE HOUSING PROJECT AND FOR THE RECOVERY
UNDER YOUR BID SECURITY OF LIQUIDATED DAMAGES IN THE SUM OF $25,000,
TOGETHER WITH ACTUAL DAMAGES TO THE DEPARTMENT, SUCH ACTUAL DAMAGES TO
BE ITEMIZED AND DETERMINED BY THE CONTRACTING OFFICER, WHOSE DECISION
WILL BE REDUCED TO WRITING AND FURNISHED TO YOU BY MAIL OR OTHERWISE. 
SUCH DECISION SHALL BE FINAL AND CONCLUSIVE UNLESS, WITHIN 30 DAYS FROM
THE RECEIPT THEREOF, YOU APPEAL IN WRITING TO THE HEAD OF THE
DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVE, AND HIS DECISION
SHALL, UNLESS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE
BEEN FRAUDULENT OR CAPRICIOUS OR ARBITRARY, OR SO GROSSLY ERRONEOUS AS
NECESSARILY TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE, BE FINAL AND CONCLUSIVE.  IN CONNECTION WITH ANY APPEAL UNDER
THIS PARAGRAPH YOU WILL BE AFFORDED AN OPPORTUNITY TO BE HEARD AND TO
OFFER EVIDENCE IN SUPPORT OF YOUR APPEAL." 

FN3  THE WUNDERLICH ACT, 68 STAT. 81, 41 U.S.C. SECS 321-322,
PROVIDES: 

"THAT NO PROVISION OF ANY CONTRACT ENTERED INTO BY THE UNITED STATES,
RELATING TO THE FINALITY OR CONCLUSIVENESS OF ANY DECISION OF THE HEAD
OF ANY DEPARTMENT OR AGENCY OR HIS DULY AUTHORIZED REPRESENTATIVE OR
BOARD IN A DISPUTE INVOLVING A QUESTION ARISING UNDER SUCH CONTRACT,
SHALL BE PLEADED IN ANY SUIT NOW FILED OR TO BE FILED AS LIMITING
JUDICIAL REVIEW OF ANY SUCH DECISION TO CASES WHERE FRAUD BY SUCH
OFFICIAL OR HIS SAID REPRESENTATIVE OR BOARD IS ALLEGED: PROVIDED,
HOWEVER, THAT ANY SUCH DECISION SHALL BE FINAL AND CONCLUSIVE UNLESS
THE SAME IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY
ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE.    "SEC. 2.  NO GOVERNMENT CONTRACT SHALL CONTAIN
A PROVISION MAKING FINAL ON A QUESTION OF LAW THE DECISION OF ANY
ADMINISTRATIVE OFFICIAL, REPRESENTATIVE, OR BOARD." 

FN4  SEE HEARING BEFORE THE SUBCOMMITTEE FOR SPECIAL INVESTIGATIONS
OF THE HOUSE COMMITTEE ON ARMED SERVICES ON H. RES. NO. 67, INQUIRY
INTO THE ADMINISTRATION AND OPERATION OF THE ARMED SERVICES BOARD OF
CONTRACT APPEALS, 85TH CONG., 2D SESS., 794-795 (1958). 

FN5 SEE UNITED STATES V. UTAH CONSTRUCTION & MINING CO., SUPRA; C.J.
LANGENFELDER & SON, INC. V. UNITED STATES, 169 CT. CL. 465, 341 F.2D
600. 

FN6  WE SEE NO REASON, IN THIS REGARD, TO DISTINGUISH BETWEEN
THEORIES OF LIABILITY NOT CONSIDERED BELOW AND THE ISSUE OF DAMAGES,
WHICH MAY NOT INITIALLY HAVE BEEN CONSIDERED IF THE BOARD FOUND NO
LIABILITY.  IF, BECAUSE OF THE DISPOSITION OF THE CASE ON APPEAL, ANY
OF THESE ISSUES BECOMES IMPORTANT, THE BOARD SHOULD BE GIVEN AN
OPPORTUNITY TO CONSIDER THEM FIRST.  THE RULE WE ANNOUNCE NECESSARILY
DISAPPROVES OF SUCH CASES AS STEIN BROS. MFG. CO. V. UNITED STATES, 162
CT. CL. 802, 337 F.2D 861, AND WPC ENTERPRISES, INC. V. UNITED STATES,
163 CT. CL. 1, 323 F.2D 874, IN WHICH THE COURT OF CLAIMS RETAINED THE
ISSUE OF DAMAGES AFTER IT REVERSED THE BOARD'S FINDING OF NO
LIABILITY. 

FN7  BRIEF FOR THE GOVERNMENT, P. 20, N. 14, INDICATES THAT IT MAY
ACTUALLY TAKE LONGER FOR THE COURT OF CLAIMS TO DISPOSE OF A CASE THAN
IT WOULD FOR THE BOARDS. 

FN8  TO THE EXTENT THAT THE COURT OF CLAIMS MAY HAVE BEEN WORRIED
ABOUT DUPLICITY OF EVIDENTIARY HEARINGS, SEE UNITED STATES V. CARLO
BIANCHI, SUPRA, AT 717, IT PARTIALLY ANSWERED ITSELF IN MORRISON
KNUDSEN CO. V. UNITED STATES, 170 CT. CL. 757, 345 F.2D 833, DECIDED
THE SAME DAY.  THERE THE COURT OF CLAIMS HELD THAT WHEN THE BOARD OF
CONTRACT APPEALS HAS JURISDICTION TO CONSIDER A CERTAIN ISSUE AND TO
AWARD FULL RELIEF AND IT MAKES A RECORD ON THE FACTUAL MATTERS
UNDERLYING THAT ISSUE, JUDICIAL REVIEW OF THOSE FACTUAL FINDINGS, FOR
WHATEVER PURPOSES, SHALL BE LIMITED TO THE RECORD MADE BY THE BOARD. 
WE HOLD, IN UNITED STATES V. UTAH CONSTRUCTION & MINING CO., SUPRA,
THAT FACTUAL FINDINGS MADE BY A BOARD PURSUANT TO A CLAIM PROPERLY
BEFORE IT, IF THEY OTHERWISE SATISFY THE STANDARDS OF THE WUNDERLICH
ACT, SHALL NOT BE RELITIGATED EVEN IN A COURT ACTION FOR RELIEF THAT IS
NOT AVAILABLE UNDER THE CONTRACT.  HENCE, THERE WILL BE ONLY ONE
EVIDENTIARY HEARING. 

FN9  THE BOARD BELOW OBSERVED, "THE PARTIES ARE IN COMPLETE AGREEMENT
THAT IT WAS AND IS THEIR MUTUAL INTERPRETATION THAT IN THE EVENT A
TIMELY APPEAL IS TAKEN THEREUNDER THE 'DISPUTES PARAGRAPH' OF THE
LETTER OF ACCEPTABILITY CONFERS JURISDICTION ON THE BOARD TO REVIEW A
DECISION RELATING TO CANCELLATION OF COMMITMENTS, WITHHOLDING OF BID
SECURITY, AND ITEMIZATION AND DETERMINATION OF ACTUAL DAMAGES."  BOTH
THE COURT OF CLAIMS AND THE TRIAL COMMISSIONER OBSERVED THAT THERE WERE
"UNRESOLVED ISSUES OF FACT" UNDERLYING THE ISSUES IN THIS CASE.  170
CT. CL. 688, 691, 345 F.2D 808, 810. 

FN10  THERE IS ANALOGY FOR THE RULE WE ANNOUNCE TODAY IN OTHER AREAS
OF ADMINISTRATIVE LAW.  SEE, E.G., SECURITIES COMM'N V. CHENERY CORP.,
318 U.S. 80, AND CONNECTICUT LIGHT & POWER CO. V. FEDERAL POWER COMM'N,
324 U.S. 515, WHERE THIS COURT ORDERED THE CASES REMANDED TO THE
AGENCIES FOR FURTHER FINDINGS AND CONSIDERATION RATHER THAN ITSELF
CURING THE INADEQUACIES OF THE RECORDS BELOW.  SEE GENERALLY, DAVIS,
ADMINISTRATIVE LAW TREATISE, SECS 16.01, 20.06 (1958).  THE SAME
GENERAL RULE ALSO APPLIED IN THE AREA OF LABOR ARBITRATION.  IN UNITED
STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593,
THE ARBITRATOR HAD FAILED TO DETERMINE THE AMOUNT OF BACK PAY TO WHICH
REINSTATED EMPLOYEES WOULD BE ENTITLED AND THIS COURT ORDERED THE
MATTER REMANDED TO THE ARBITRATOR FOR RESOLUTION OF THIS ISSUE.  THE
COURT OBSERVED THERE THAT IT WAS THE ARBITRATOR'S DETERMINATION "WHICH
WAS BARGAINED FOR."  MUCH THE SAME THING CAN BE SAID HERE, ALTHOUGH OF
COURSE THE FINDINGS AND CONCLUSIONS OF THE BOARD OF CONTRACT APPEALS DO
NOT HAVE THE SAME FINALITY ON REVIEW.  SEE ALSO INTERNATIONAL
ASSOCIATION OF MACHINISTS V. CROWN CORK & SEAL CO., 300 F.2D 127. 
..END :













LAMBRIGHT V. CALIFORNIA 384 U.S. 434 


NO. 1408, MISC.  DECIDED JUNE 6, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


LAMBRIGHT V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















DOUBLE EAGLE LUBRICANTS, INC. V. TEXAS 384 U.S. 434 


NO. 1177.  DECIDED JUNE 6, 1966.  - 248 F. SUPP. 515, APPEAL DISMISSED. 


DOUBLE EAGLE LUBRICANTS, INC. V. TEXAS. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  SWIFT & CO., INC. V. WICKHAM, 382 U.S. 111, AND
PENNSYLVANIA PUBLIC UTILITY COMM'N V. PENNSYLVANIA R. CO., 382 U.S.
281. 
..END :















JENKINS V. BIRZGALIS 384 U.S. 435 


NO. 1495, MISC.  DECIDED JUNE 6, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


JENKINS V. BIRZGALIS, STATE HOSPITAL SUPERINTENDENT, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF MICHIGAN. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















DAUGHERTY V. TENNESSEE 384 U.S. 435 


NO. 1435, MISC.  DECIDED JUNE 6, 1966.  - 216 TENN. 666, 393 S.W.2D 739,
APPEAL DISMISSED AND CERTIORARI DENIED. 


DAUGHERTY V. TENNESSEE. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















UNITED STATES V. VON'S GROCERY CO. 384 U.S. 270 


NO. 303.  ARGUED MARCH 22, 1966.  - DECIDED MAY 31, 1966.  - 233 F.
SUPP. 976, REVERSED. 


THE UNITED STATES CHARGED THAT THE ACQUISITION IN 1960 BY VON'S
GROCERY COMPANY OF SHOPPING BAG FOOD STORES, A COMPETITOR IN THE RETAIL
GROCERY MARKET IN THE LOS ANGELES AREA, VIOLATED SEC 7 OF THE CLAYTON
ACT.  AFTER A HEARING THE DISTRICT COURT CONCLUDED THAT THERE WAS "NOT
A REASONABLE PROBABILITY" THAT THE MERGER WOULD TEND "SUBSTANTIALLY TO
LESSEN COMPETITION" OR "CREATE A MONOPOLY" IN VIOLATION OF SEC 7 AND
ENTERED JUDGMENT FOR THE APPELLEES.  HELD: THE MERGER OF TWO OF THE
LARGEST AND MOST SUCCESSFUL RETAIL GROCERY COMPANIES IN A MARKET AREA
CHARACTERIZED BY A STEADY DECLINE, BEFORE AND AFTER THE MERGER, IN THE
NUMBER OF SMALL GROCERY COMPANIES, COMBINED WITH SIGNIFICANT ABSORPTION
OF SMALL FIRMS BY LARGER ONES, IS A VIOLATION OF SEC 7 OF THE CLAYTON
ACT.  PP. 274-279. 

(A)  BY THE ENACTMENT OF THE CELLER-KEFAUVER AMENDMENT TO SEC 7 IN
1950 CONGRESS SOUGHT TO PRESERVE COMPETITION AMONG SMALL BUSINESSES BY
HALTING A TREND TOWARD CONCENTRATION IN ITS INCIPIENCY AND THUS THE
COURTS MUST BE ALERT TO PROTECT COMPETITION AGAINST INCREASING
CONCENTRATION THROUGH MERGERS ESPECIALLY WHERE CONCENTRATION IS GAINING
MOMENTUM IN THE MARKET.  PP. 276-277. 

(B)  THIS CASE PRESENTS THE PRECISE SITUATION WHICH CONGRESS INTENDED
TO PROSCRIBE, WHERE TWO POWERFUL COMPANIES MERGE TO BECOME MORE
POWERFUL IN A MARKET EXHIBITING A MARKED TREND TOWARD CONCENTRATION. 
PP. 277-278. 

(C)  SECTION 7 REQUIRES NOT ONLY AN APPRAISAL OF THE IMMEDIATE IMPACT
OF THE MERGER ON COMPETITION BUT A PREDICTION OF THE MERGER'S EFFECT ON
COMPETITIVE CONDITIONS IN THE FUTURE, TO PREVENT THE DESTRUCTION OF
COMPETITION.  UNITED STATES V. PHILADELPHIA NAT. BANK, 374 U.S. 321,
362.  P. 278. 

(D)  SINCE THE APPELLEES WERE ON NOTICE OF THE ANTITRUST CHARGE, THE
JUDGMENT IS REVERSED AND THE DISTRICT COURT IS DIRECTED TO ORDER
DIVESTITURE WITHOUT DELAY.  P. 279. 

UNITED STATES V. VON'S GROCERY CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ON MARCH 25, 1960, THE UNITED STATES BROUGHT THIS ACTION CHARGING
THAT THE ACQUISITION BY VON'S GROCERY COMPANY OF ITS DIRECT COMPETITOR
SHOPPING BAG FOOD STORES, BOTH LARGE RETAIL GROCERY COMPANIES IN LOS
ANGELES, CALIFORNIA, VIOLATED SEC 7 OF THE CLAYTON ACT WHICH, AS
AMENDED IN 1950 BY THE CELLER-KEFAUVER ANTI-MERGER ACT, PROVIDES IN
RELEVANT PART: 

"THAT NO CORPORATION ENGAGED IN COMMERCE  ...  SHALL ACQUIRE THE
WHOLE OR ANY PART OF THE ASSETS OF ANOTHER CORPORATION ENGAGED ALSO IN
COMMERCE, WHERE IN ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY,
THE EFFECT OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION, OR TO TEND TO CREATE A MONOPOLY."  (FN1) 

ON MARCH 28, 1960, THREE DAYS LATER, THE DISTRICT COURT REFUSED TO
GRANT THE GOVERNMENT'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND
IMMEDIATELY VON'S TOOK OVER ALL OF SHOPPING BAG'S CAPITAL STOCK AND
ASSETS INCLUDING 36 GROCERY STORES IN THE LOS ANGELES AREA.  AFTER
HEARING EVIDENCE ON BOTH SIDES, THE DISTRICT COURT MADE FINDINGS OF
FACT AND CONCLUDED AS A MATTER OF LAW THAT THERE WAS "NOT A REASONABLE
PROBABILITY" THAT THE MERGER WOULD TEND "SUBSTANTIALLY TO LESSEN
COMPETITION" OR "CREATE A MONOPOLY" IN VIOLATION OF SEC 7.  FOR THIS
REASON THE DISTRICT COURT ENTERED JUDGMENT FOR THE DEFENDANTS.  233 F.
SUPP. 976, 985.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT AS
AUTHORIZED BY SEC 2 OF THE EXPEDITING ACT.  (FN2)  THE SOLE QUESTION
HERE IS WHETHER THE DISTRICT COURT PROPERLY CONCLUDED ON THE FACTS
BEFORE IT THAT THE GOVERNMENT HAD FAILED TO PROVE A VIOLATION OF SEC
7. 

THE RECORD SHOWS THE FOLLOWING FACTS RELEVANT TO OUR DECISION.  THE
MARKET INVOLVED HERE IS THE RETAIL GROCERY MARKET IN THE LOS ANGELES
AREA.  IN 1958 VON'S RETAIL SALES RANKED THIRD IN THE AREA AND SHOPPING
BAG'S RANKED SIXTH.  IN 1960 THEIR SALES TOGETHER WERE 7.5% OF THE
TOTAL TWO AND ONE-HALF BILLION DOLLARS OF RETAIL GROCERIES SOLD IN THE
LOS ANGELES MARKET EACH YEAR.  FOR MANY YEARS BEFORE THE MERGER BOTH
COMPANIES HAD ENJOYED GREAT SUCCESS AS RAPIDLY GROWING COMPANIES.  FROM
1948 TO 1958 THE NUMBER OF VON'S STORES IN THE LOS ANGELES AREA
PRACTICALLY DOUBLED FROM 14 TO 27, WHILE AT THE SAME TIME THE NUMBER OF
SHOPPING BAG'S STORES JUMPED FROM 15 TO 34.  DURING THAT SAME DECADE,
VON'S SALES INCREASED FOURFOLD AND ITS SHARE OF THE MARKET ALMOST
DOUBLED WHILE SHOPPING BAG'S SALES MULTIPLIED SEVEN TIMES AND ITS SHARE
OF THE MARKET TRIPLED.  THE MERGER OF THESE TWO HIGHLY SUCCESSFUL,
EXPANDING AND AGGRESSIVE COMPETITORS CREATED THE SECOND LARGEST GROCERY
CHAIN IN LOS ANGELES WITH SALES OF ALMOST $172,488,000 ANNUALLY.  IN
ADDITION THE FINDINGS OF THE DISTRICT COURT SHOW THAT THE NUMBER OF
OWNERS OPERATING SINGLE STORES IN THE LOS ANGELES RETAIL GROCERY MARKET
DECREASED FROM 5,365 IN 1950 TO 3,818 IN 1961.  BY 1963, THREE YEARS
AFTER THE MERGER, THE NUMBER OF SINGLE-STORE OWNERS HAD DROPPED STILL
FURTHER TO 3,590.  (FN3)  DURING ROUGHLY THE SAME PERIOD, FROM 1953 TO
1962, THE NUMBER OF CHAINS WITH TWO OR MORE GROCERY STORES INCREASED
FROM 96 TO 150.  WHILE THE GROCERY BUSINESS WAS BEING CONCENTRATED INTO
THE HANDS OF FEWER AND FEWER OWNERS, THE SMALL COMPANIES WERE
CONTINUALLY BEING ABSORBED BY THE LARGER FIRMS THROUGH MERGERS. 
ACCORDING TO AN EXHIBIT PREPARED BY ONE OF THE GOVERNMENT'S EXPERT
WITNESSES, IN THE PERIOD FROM 1949 TO 1958 NINE OF THE TOP 20 CHAINS
ACQUIRED 126 STORES FROM THEIR SMALLER COMPETITORS.  (FN4)  FIGURES OF
A PRINCIPAL DEFENSE WITNESS, SET OUT BELOW, ILLUSTRATE THE MANY
ACQUISITIONS AND MERGERS IN THE LOS ANGELES GROCERY INDUSTRY FROM 1954
THROUGH 1961 INCLUDING ACQUISITIONS MADE BY FOOD GIANT, ALPHA BETA,
FOX, AND MAYFAIR, ALL AMONG THE 10 LEADING CHAINS IN THE AREA.  (FN5)
MOREOVER, A TABLE PREPARED BY THE FEDERAL TRADE COMMISSION APPEARING IN
THE GOVERNMENT'S REPLY BRIEF, BUT NOT A PART OF THE RECORD HERE, SHOWS
THAT ACQUISITIONS AND MERGERS IN THE LOS ANGELES RETAIL GROCERY MARKET
HAVE CONTINUED AT A RAPID RATE SINCE THE MERGER.  (FN6)  THESE FACTS
ALONE ARE ENOUGH TO CAUSE US TO CONCLUDE CONTRARY TO THE DISTRICT COURT
THAT THE VON'S-SHOPPING BAG MERGER DID VIOLATE SEC 7.  ACCORDINGLY, WE
REVERSE. 

FROM THIS COUNTRY'S BEGINNING THERE HAS BEEN AN ABIDING AND
WIDESPREAD FEAR OF THE EVILS WHICH FLOW FROM MONOPOLY - THAT IS THE
CONCENTRATION OF ECONOMIC POWER IN THE HANDS OF A FEW.  ON THE BASIS OF
THIS FEAR, CONGRESS IN 1890, WHEN MANY OF THE NATION'S INDUSTRIES WERE
ALREADY CONCENTRATED INTO WHAT IT DEEMED TOO FEW HANDS, PASSED THE
SHERMAN ACT IN AN ATTEMPT TO PREVENT FURTHER CONCENTRATION AND TO
PRESERVE COMPETITION AMONG A LARGE NUMBER OF SELLERS.  SEVERAL YEARS
LATER, IN 1897, THIS COURT EMPHASIZED THIS POLICY OF THE SHERMAN ACT BY
CALLING ATTENTION TO THE TENDENCY OF POWERFUL BUSINESS COMBINATIONS TO
RESTRAIN COMPETITION "BY DRIVING OUT OF BUSINESS THE SMALL DEALERS AND
WORTHY MEN WHOSE LIVES HAVE BEEN SPENT THEREIN, AND WHO MIGHT BE UNABLE
TO READJUST THEMSELVES IN THEIR ALTERED SURROUNDINGS."  UNITED STATES
V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290, 323.  (FN7)  THE SHERMAN
ACT FAILED TO PROTECT THE SMALLER BUSINESSMEN FROM ELIMINATION THROUGH
THE MONOPOLISTIC PRESSURES OF LARGE COMBINATIONS WHICH USED MERGERS TO
GROW EVER MORE POWERFUL.  AS A RESULT IN 1914 CONGRESS, VIEWING MERGERS
AS A CONTINUOUS, PERVASIVE THREAT TO SMALL BUSINESS, PASSED SEC 7 OF
THE CLAYTON ACT WHICH PROHIBITED CORPORATIONS UNDER MOST CIRCUMSTANCES
FROM MERGING BY PURCHASING THE STOCK OF THEIR COMPETITORS.  INGENIOUS
BUSINESSMEN, HOWEVER, SOON FOUND A WAY TO AVOID SEC 7 AND CORPORATIONS
BEGAN TO MERGE SIMPLY BY PURCHASING THEIR RIVALS' ASSETS.  THIS COURT
IN 1926, OVER THE DISSENT OF JUSTICE BRANDEIS, JOINED BY CHIEF JUSTICE
TAFT AND JUSTICES HOLMES AND STONE APPROVED THIS DEVICE FOR AVOIDING
SEC 7  (FN8) AND MERGERS CONTINUED TO CONCENTRATE ECONOMIC POWER INTO
FEWER AND FEWER HANDS UNTIL 1950 WHEN CONGRESS PASSED THE CELLER
KEFAUVER ANTI-MERGER ACT NOW BEFORE US. 

LIKE THE SHERMAN ACT IN 1890 AND THE CLAYTON ACT IN 1914, THE BASIC
PURPOSE OF THE 1950 CELLER-KEFAUVER ACT WAS TO PREVENT ECONOMIC
CONCENTRATION IN THE AMERICAN ECONOMY BY KEEPING A LARGE NUMBER OF
SMALL COMPETITORS IN BUSINESS.  (FN9)  IN STATING THE PURPOSES OF THEIR
BILL, BOTH OF ITS SPONSORS, REPRESENTATIVE CELLER AND SENATOR KEFAUVER,
EMPHASIZED THEIR FEAR, WIDELY SHARED BY OTHER MEMBERS OF CONGRESS, THAT
THIS CONCENTRATION WAS RAPIDLY DRIVING THE SMALL BUSINESSMAN OUT OF THE
MARKET.  (FN10)  THE PERIOD FROM 1940 TO 1947, WHICH WAS AT THE CENTER
OF ATTENTION THROUGHOUT THE HEARINGS AND DEBATES ON THE CELLER-KEFAUVER
BILL, HAD BEEN CHARACTERIZED BY A SERIES OF MERGERS BETWEEN LARGE
CORPORATIONS AND THEIR SMALLER COMPETITORS RESULTING IN THE STEADY
EROSION OF THE SMALL INDEPENDENT BUSINESS IN OUR ECONOMY.  (FN11)  AS
WE SAID IN BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 315, "THE
DOMINANT THEME PERVADING CONGRESSIONAL CONSIDERATION OF THE 1950
AMENDMENTS WAS A FEAR OF WHAT WAS CONSIDERED TO BE A RISING TIDE OF
ECONOMIC CONCENTRATION IN THE AMERICAN ECONOMY."  TO ARREST THIS
"RISING TIDE" TOWARD CONCENTRATION INTO TOO FEW HANDS AND TO HALT THE
GRADUAL DEMISE OF THE SMALL BUSINESSMAN, CONGRESS DECIDED TO CLAMP DOWN
WITH VIGOR ON MERGERS.  IT BOTH REVITALIZED SEC 7 OF THE CLAYTON ACT BY
"PLUGGING ITS LOOPHOLE" AND BROADENED ITS SCOPE SO AS NOT ONLY TO
PROHIBIT MERGERS BETWEEN COMPETITORS, THE EFFECT OF WHICH "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY"
BUT TO PROHIBIT ALL MERGERS HAVING THAT EFFECT.   BY USING THESE TERMS
IN SEC 7 WHICH LOOK NOT MERELY TO THE ACTUAL PRESENT EFFECT OF A MERGER
BUT INSTEAD TO ITS EFFECT UPON FUTURE COMPETITION, CONGRESS SOUGHT TO
PRESERVE COMPETITION AMONG MANY SMALL BUSINESSES BY ARRESTING A TREND
TOWARD CONCENTRATION IN ITS INCIPIENCY BEFORE THAT TREND DEVELOPED TO
THE POINT THAT A MARKET WAS LEFT IN THE GRIP OF A FEW BIG COMPANIES. 
THUS, WHERE CONCENTRATION IS GAINING MOMENTUM IN A MARKET, WE MUST BE
ALERT TO CARRY OUT CONGRESS' INTENT TO PROTECT COMPETITION AGAINST EVER
INCREASING CONCENTRATION THROUGH MERGERS.  (FN12) 

THE FACTS OF THIS CASE PRESENT EXACTLY THE THREATENING TREND TOWARD
CONCENTRATION WHICH CONGRESS WANTED TO HALT.  THE NUMBER OF SMALL
GROCERY COMPANIES IN THE LOS ANGELES RETAIL GROCERY MARKET HAD BEEN
DECLINING RAPIDLY BEFORE THE MERGER AND CONTINUED TO DECLINE RAPIDLY
AFTERWARDS.  THIS RAPID DECLINE IN THE NUMBER OF GROCERY STORE OWNERS
MOVED HAND IN HAND WITH A LARGE NUMBER OF SIGNIFICANT ABSORPTIONS OF
THE SMALL COMPANIES BY THE LARGER ONES.  IN THE MIDST OF THIS STEADFAST
TREND TOWARD CONCENTRATION, VON'S AND SHOPPING BAG, TWO OF THE MOST
SUCCESSFUL AND LARGEST COMPANIES IN THE AREA, JOINTLY OWNING 66 GROCERY
STORES MERGED TO BECOME THE SECOND LARGEST CHAIN IN LOS ANGELES.  THIS
MERGER CANNOT BE DEFENDED ON THE GROUND THAT ONE OF THE COMPANIES WAS
ABOUT TO FAIL OR THAT THE TWO HAD TO MERGE TO SAVE THEMSELVES FROM
DESTRUCTION BY SOME LARGER AND MORE POWERFUL COMPETITOR.  (FN13)  WHAT
WE HAVE ON THE CONTRARY IS SIMPLY THE CASE OF TWO ALREADY POWERFUL
COMPANIES MERGING IN A WAY WHICH MAKES THEM EVEN MORE POWERFUL THAN
THEY WERE BEFORE.  IF EVER SUCH A MERGER WOULD NOT VIOLATE SEC 7,
CERTAINLY IT DOES WHEN IT TAKES PLACE IN A MARKET CHARACTERIZED BY A
LONG AND CONTINUOUS TREND TOWARD FEWER AND FEWER OWNER-COMPETITORS
WHICH IS EXACTLY THE SORT OF TREND WHICH CONGRESS, WITH POWER TO DO SO,
DECLARED MUST BE ARRESTED. 

APPELLEES' PRIMARY ARGUMENT IS THAT THE MERGER BETWEEN VON'S AND
SHOPPING BAG IS NOT PROHIBITED BY SEC 7 BECAUSE THE LOS ANGELES GROCERY
MARKET WAS COMPETITIVE BEFORE THE MERGER, HAS BEEN SINCE, AND MAY
CONTINUE TO BE IN THE FUTURE.  EVEN SO, SEC 7 "REQUIRES NOT MERELY AN
APPRAISAL OF THE IMMEDIATE IMPACT OF THE MERGER UPON COMPETITION, BUT A
PREDICTION OF ITS IMPACT UPON COMPETITIVE CONDITIONS IN THE FUTURE;
THIS IS WHAT IS MEANT WHEN IT IS SAID THAT THE AMENDED SEC 7 WAS
INTENDED TO ARREST ANTICOMPETITIVE TENDENCIES IN THEIR 'INCIPIENCY.'" 
U.S. V. PHILADELPHIA NAT. BANK, 374 U.S. 321, 362.  IT IS ENOUGH FOR US
THAT CONGRESS FEARED THAT A MARKET MARKED AT THE SAME TIME BY BOTH A
CONTINUOUS DECLINE IN THE NUMBER OF SMALL BUSINESSES AND A LARGE NUMBER
OF MERGERS WOULD SLOWLY BUT INEVITABLY GRAVITATE FROM A MARKET OF MANY
SMALL COMPETITORS TO ONE DOMINATED BY ONE OR A FEW GIANTS, AND
COMPETITION WOULD THEREBY BE DESTROYED.  CONGRESS PASSED THE CELLER
KEFAUVER ACT TO PREVENT SUCH A DESTRUCTION OF COMPETITION.  OUR CASES
SINCE THE PASSAGE OF THAT ACT HAVE FAITHFULLY ENDEAVORED TO ENFORCE
THIS CONGRESSIONAL COMMAND.  (FN14)  WE ADHERE TO THEM NOW. 

HERE AGAIN AS IN UNITED STATES V. EL PASO GAS CO., 376 U.S. 651, 662,
SINCE APPELLEES "HAVE BEEN ON NOTICE OF THE ANTITRUST CHARGE FROM
ALMOST THE BEGINNING  ...  WE NOT ONLY REVERSE THE JUDGMENT BELOW BUT
DIRECT THE DISTRICT COURT TO ORDER DIVESTITURE WITHOUT DELAY."  SEE
ALSO UNITED STATES V. DU PONT & CO., 366 U.S. 316; UNITED STATES V.
ALCOA, 377 U.S. 271, 281.  REVERSED AND REMANDED. 

FN1  38 STAT. 731, AS AMENDED BY 64 STAT. 1125, 15 U.S.C. SEC 18
(1964 ED.). 

FN2  32 STAT. 823, AS AMENDED BY 62 STAT. 989, 15 U.S.C. SEC 29 (1964
ED.). 

FN3  DESPITE THIS STEADFAST CONCENTRATION OF THE LOS ANGELES GROCERY
BUSINESS INTO FEWER AND FEWER HANDS, THE DISTRICT COURT, IN FINDING OF
FACT NO. 80, CONCLUDED AS FOLLOWS: 

"THERE HAS BEEN NO INCREASE IN CONCENTRATION IN THE RETAIL GROCERY
BUSINESS IN THE LOS ANGELES METROPOLITAN AREA EITHER IN THE LAST DECADE
OR SINCE THE MERGER.  ON THE CONTRARY, ECONOMIC CONCENTRATION HAS
DECREASED  ...  ." 

THIS CONCLUSION IS COMPLETELY CONTRADICTED BY FINDING NO. 23 WHICH
MAKES PLAIN THE STEADY DECLINE IN THE NUMBER OF INDIVIDUAL GROCERY
STORE OWNERS REFERRED TO ABOVE.  IT IS THUS APPARENT THAT THE DISTRICT
COURT, IN FINDING NO. 80, USED THE TERM "CONCENTRATION" IN SOME SENSE
OTHER THAN A TOTAL DECREASE IN THE NUMBER OF SEPARATE COMPETITORS WHICH
IS THE CRUCIAL POINT HERE. 

FN4  APPELLEES, IN THEIR BRIEF, CLAIM THAT 120 AND NOT 126 STORES
CHANGED HANDS IN THESE ACQUISITIONS: 

"IT SHOULD ALSO BE NOTED HERE THAT THE EXHIBIT IS IN ERROR IN SHOWING
AN ACQUISITION BY FOOD GIANT FROM ITSELF OF SIX STORES DOING AN ANNUAL
VOLUME OF $31,700,000.  ACTUALLY THIS WAS SIMPLY A CHANGE OF NAME BY
FOOD GIANT  ...  ." 

FN5  THESE FIGURES AS THEY APPEAR IN A TABLE IN THE BRIEF FOR THE
UNITED STATES SHOW ACQUISITIONS OF RETAIL GROCERY STORES IN THE LOS
ANGELES AREA FROM 1954 TO 1961:  SEE APPENDIX, TABLE 1, SUBSTANTIALLY
REPRODUCING THE ABOVE-MENTIONED TABLE.  (TABLE OMITTED.) 

FN6  SEE APPENDIX, TABLE 2.  (TABLE OMITTED.) 

FN7  LATER, IN 1945, JUDGE LEARNED HAND, REVIEWING THE POLICY OF THE
ANTITRUST LAWS AND OTHER LAWS DESIGNED TO FOSTER SMALL BUSINESS, SAID,
"THROUGHOUT THE HISTORY OF THESE STATUTES IT HAS BEEN CONSTANTLY
ASSUMED THAT ONE OF THEIR PURPOSES WAS TO PERPETUATE AND PRESERVE, FOR
ITS OWN SAKE AND IN SPITE OF POSSIBLE COST, AN ORGANIZATION OF INDUSTRY
IN SMALL UNITS WHICH CAN EFFECTIVELY COMPETE WITH EACH OTHER."  UNITED
STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 429.    FN8  THATCHER
MANUFACTURING CO. V. FEDERAL TRADE COMMISSION, 272 U.S. 554, 560. 

FN9  SEE, E.G., U.S. V. PHILADELPHIA NAT. BANK, 374 U.S. 321, 362
363; UNITED STATES V. ALCOA, 377 U.S. 271, 280. 

FN10  REPRESENTATIVE CELLER, IN INTRODUCING THE BILL ON THE HOUSE
FLOOR, REMARKED: 

"SMALL, INDEPENDENT, DECENTRALIZED BUSINESS OF THE KIND THAT BUILT UP
OUR COUNTRY, OF THE KIND THAT MADE OUR COUNTRY GREAT, FIRST, IS FAST
DISAPPEARING, AND SECOND, IS BEING MADE DEPENDENT UPON MONSTER
CONCENTRATION."  95 CONG. REC. 11486.    SENATOR KEFAUVER EXPRESSED THE
SAME FEAR ON THE SENATE FLOOR: 

"I THINK THAT WE ARE APPROACHING A POINT WHERE A FUNDAMENTAL DECISION
MUST BE MADE IN REGARD TO THIS PROBLEM OF ECONOMIC CONCENTRATION. 
SHALL WE PERMIT THE ECONOMY OF THE COUNTRY TO GRAVITATE INTO THE HANDS
OF A FEW CORPORATIONS  ...  ?  OR ON THE OTHER HAND ARE WE GOING TO
PRESERVE SMALL BUSINESS, LOCAL OPERATIONS, AND FREE ENTERPRISE?"  96
CONG. REC. 16450. 

REFERENCES TO A NUMBER OF OTHER SIMILAR REMARKS BY OTHER CONGRESSMEN
ARE COLLECTED IN BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 316, N.
28. 

FN11  H.R. REP. NO. 1191, 81ST CONG., 1ST SESS., P. 3, DESCRIBED THIS
CHARACTERISTIC OF THE MERGER MOVEMENT AS FOLLOWS: 

"  ...  THE OUTSTANDING CHARACTERISTIC OF THE MERGER MOVEMENT HAS
BEEN THAT OF LARGE CORPORATIONS BUYING OUT SMALL COMPANIES, RATHER THAN
SMALLER COMPANIES COMBINING TOGETHER IN ORDER TO COMPETE MORE
EFFECTIVELY WITH THEIR LARGER RIVALS.  MORE THAN 70 PERCENT OF THE
TOTAL NUMBER OF FIRMS ACQUIRED DURING 1940-47 HAVE BEEN ABSORBED BY
LARGER CORPORATIONS WITH ASSETS OF OVER $5,000,000.  IN CONTRAST, FULLY
93 PERCENT OF ALL THE FIRMS BOUGHT OUT HELD ASSETS OF LESS THAN
$1,000,000.  SOME 33 OF THE NATION'S 200 LARGEST INDUSTRIAL
CORPORATIONS HAVE BOUGHT OUT AN AVERAGE OF 5 COMPANIES EACH, AND 13
HAVE PURCHASED MORE THAN 10 CONCERNS EACH." 

FN12  SEE, E.G., BROWN SHOE CO. V. UNITED STATES, 370 U.S., AT 346;
U.S. V. PHILADELPHIA NAT. BANK, 374 U.S., AT 362.  SEE ALSO UNITED
STATES V. DU PONT & CO., 353 U.S. 586, 597, INTERPRETING SEC 7 BEFORE
THE CELLER-KEFAUVER ANTI-MERGER AMENDMENT. 

FN13  SEE BROWN SHOE CO. V. UNITED STATES, 370 U.S., AT 319. 

FN14  SEE, E.G., BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294; U.S.
V. PHILADELPHIA NAT. BANK, 374 U.S. 321; UNITED STATES V. EL PASO GAS
CO., 376 U.S. 651; UNITED STATES V. ALCOA, 377 U.S. 271; UNITED STATES
V. CONTINENTAL CAN CO., 378 U.S. 441; FTC V. CONSOLIDATED FOODS, 380
U.S. 592. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE WHITE, CONCURRING. 

AS I READ THE COURT'S OPINION, WHICH I JOIN, IT DOES NOT HOLD THAT IN
ANY INDUSTRY EXHIBITING A DECIDED TREND TOWARDS CONCENTRATION, ANY
MERGER BETWEEN COMPETING FIRMS VIOLATES SEC 7 UNLESS SAVED BY THE
FAILING COMPANY DOCTRINE; NOR DOES IT DECLARE ILLEGAL EACH AND EVERY
MERGER IN SUCH AN INDUSTRY WHERE THE RESULTING FIRM HAS AS MUCH AS A
7.5% SHARE OF THE RELEVANT MARKET.  BUT HERE, IN 1958 BEFORE THE
MERGER, THE LARGEST FIRM HAD 8% OF THE SALES, VON'S WAS THIRD WITH 4.7%
AND SHOPPING BAG WAS SIXTH WITH 4.2%.  THE FOUR LARGEST FIRMS HAD 24.4%
OF THE MARKET, THE TOP EIGHT HAD 40.9% AND THE TOP 12 HAD 48.8% AS
COMPARED WITH 25.9%, 33.7% AND 38.8% IN 1948.  ALL BUT TWO OF THE TOP
10 FIRMS IN 1958 WERE VERY PROBABLY ALSO AMONG THE TOP 10 IN 1948 OR
HAD ACQUIRED A FIRM THAT WAS AMONG THE TOP 10.  FURTHER, ALL BUT THREE
OF THE TOP 10 HAD INCREASED THEIR MARKET SHARE BETWEEN 1948 AND 1958
AND THOSE WHICH GAINED GAINED MORE THAN THE THREE LOST.  ALSO, ALTHOUGH
THREE COMPANIES DECLINED IN MARKET SHARE THEIR TOTAL SALES INCREASED IN
SUBSTANTIAL AMOUNTS. 

GIVEN A TREND TOWARDS FEWER AND FEWER SELLERS WHICH PROMISES TO
CONTINUE, IT IS CLEAR TO ME THAT WHERE THE EIGHT LEADING FIRMS HAVE
OVER 40% OF THE MARKET, ANY MERGER BETWEEN THE LEADERS OR BETWEEN ONE
OF THEM AND A LESSER COMPANY IS VULNERABLE UNDER SEC 7, ABSENT SOME
SPECIAL PROOF TO THE CONTRARY.  HERE VON'S ACQUIRED SHOPPING BAG.  BOTH
WERE AMONG THE EIGHT LARGEST COMPANIES, BOTH HAD GROWN SUBSTANTIALLY
SINCE 1948 AND THEY WERE SUBSTANTIAL COMPETITORS.  AFTER THE MERGER THE
FOUR LARGEST FIRMS HAD 28.8%, THE EIGHT LARGEST HAD 44% AND THE 12
LARGEST HAD 50%.  THE MERGER NOT ONLY DISPOSED OF A SUBSTANTIAL
COMPETITOR BUT INCREASED THE CONCENTRATION IN THE LEADING FIRMS.  IN MY
VIEW THE GOVERNMENT SUFFICIENTLY PROVED THAT THE EFFECT OF THIS MERGER
MAY BE SUBSTANTIALLY TO LESSEN COMPETITION OR TO TEND TO CREATE A
MONOPOLY. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

WE FIRST GAVE CONSIDERATION TO THE 1950 AMENDMENT OF SEC 7 OF THE
CLAYTON ACT IN BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294.  THE
THOROUGH OPINION THE CHIEF JUSTICE WROTE FOR THE COURT IN THAT CASE
MADE TWO THINGS PLAIN:  FIRST, THE STANDARDS OF SEC 7 REQUIRE THAT
EVERY CORPORATE ACQUISITION BE JUDGED IN THE LIGHT OF THE CONTEMPORARY
ECONOMIC CONTEXT OF ITS INDUSTRY.  (FN1)  SECOND, THE PURPOSE OF SEC 7
IS TO PROTECT COMPETITION, NOT TO PROTECT COMPETITORS, AND EVERY SEC 7
CASE MUST BE DECIDED IN THE LIGHT OF THAT CLEAR STATUTORY PURPOSE. 
(FN2)  TODAY THE COURT TURNS ITS BACK ON THESE TWO BASIC PRINCIPLES AND
ON ALL THE DECISIONS THAT HAVE FOLLOWED THEM. 

THE COURT MAKES NO EFFORT TO APPRAISE THE COMPETITIVE EFFECTS OF THIS
ACQUISITION IN TERMS OF THE CONTEMPORARY ECONOMY OF THE RETAIL FOOD
INDUSTRY IN THE LOS ANGELES AREA.  (FN3)  INSTEAD, THROUGH A SIMPLE
EXERCISE IN SUMS, IT FINDS THAT THE NUMBER OF INDIVIDUAL COMPETITORS IN
THE MARKET HAS DECREASED OVER THE YEARS, AND, APPARENTLY ON THE THEORY
THAT THE DEGREE OF COMPETITION IS INVARIABLY PROPORTIONAL TO THE NUMBER
OF COMPETITORS, IT HOLDS THAT THIS HISTORIC REDUCTION IN THE NUMBER OF
COMPETING UNITS IS ENOUGH UNDER SEC 7 TO INVALIDATE A MERGER WITHIN THE
MARKET, WITH NO NEED TO EXAMINE THE ECONOMIC CONCENTRATION OF THE
MARKET, THE LEVEL OF COMPETITION IN THE MARKET, OR THE POTENTIAL
ADVERSE EFFECT OF THE MERGER ON THAT COMPETITION.  THIS STARTLING PER
SE RULE IS CONTRARY NOT ONLY TO OUR PREVIOUS DECISIONS, BUT CONTRARY TO
THE LANGUAGE OF SEC 7, CONTRARY TO THE LEGISLATIVE HISTORY OF THE 1950
AMENDMENT, AND CONTRARY TO ECONOMIC REALITY. 

UNDER SEC 7, AS AMENDED, A MERGER CAN BE INVALIDATED IF, AND ONLY IF,
"THE EFFECT OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION, OR TO TEND TO CREATE A MONOPOLY."  NO QUESTION IS RAISED
HERE AS TO THE TENDENCY OF THE PRESENT MERGER TO CREATE A MONOPOLY. 
OUR SOLE CONCERN IS WITH THE QUESTION WHETHER THE EFFECT OF THE MERGER
MAY BE SUBSTANTIALLY TO LESSEN COMPETITION. 

THE PRINCIPAL DANGER AGAINST WHICH THE 1950 AMENDMENT WAS ADDRESSED
WAS THE EROSION OF COMPETITION THROUGH THE CUMULATIVE CENTRIPETAL
EFFECT OF ACQUISITIONS BY LARGE CORPORATIONS, NONE OF WHICH BY ITSELF
MIGHT BE SUFFICIENT TO CONSTITUTE A VIOLATION OF THE SHERMAN ACT. 
CONGRESS' IMMEDIATE FEAR WAS THAT OF LARGE CORPORATIONS BUYING OUT
SMALL COMPANIES.  (FN4)  A MAJOR ASPECT OF THAT FEAR WAS THE PERCEIVED
TREND TOWARD ABSENTEE OWNERSHIP OF LOCAL BUSINESS.  (FN5)  ANOTHER,
MORE GENERALIZED, CONGRESSIONAL PURPOSE REVEALED BY THE LEGISLATIVE
HISTORY WAS TO PROTECT SMALL BUSINESSMEN AND TO STEM THE RISING TIDE OF
CONCENTRATION IN THE ECONOMY.  (FN6)  THESE GOALS, CONGRESS THOUGHT,
COULD BE ACHIEVED BY "ARRESTING MERGERS AT A TIME WHEN THE TREND TO A
LESSENING OF COMPETITION IN A LINE OF COMMERCE WAS STILL IN ITS
INCIPIENCY."  BROWN SHOE CO. V. UNITED STATES, SUPRA, AT 317. 

THE CONCEPT OF ARRESTING RESTRAINTS OF TRADE IN THEIR "INCIPIENCY"
WAS NOT AN INNOVATION OF THE 1950 AMENDMENT.  THE NOTION OF INCIPIENCY
WAS PART OF THE REPORT ON THE ORIGINAL CLAYTON ACT BY THE SENATE
COMMITTEE ON THE JUDICIARY IN 1914, AND IT WAS REITERATED IN THE SENATE
REPORT IN 1950.  (FN7)  THAT NOTION WAS NOT LEFT UNDEFINED.  THE
LEGISLATIVE HISTORY LEAVES NO DOUBT THAT THE APPLICABLE STANDARD FOR
MEASURING THE SUBSTANTIALITY OF THE EFFECT OF A MERGER ON COMPETITION
WAS THAT OF A "REASONABLE PROBABILITY" OF LESSENING COMPETITION.  (FN8)
THE STANDARD WAS THUS MORE STRINGENT THAN THAT OF A "MERE POSSIBILITY"
ON THE ONE HAND AND MORE LENIENT THAN THAT OF A "CERTAINTY" ON THE
OTHER.  (FN9)  I CANNOT AGREE THAT THE RETAIL GROCERY BUSINESS IN LOS
ANGELES IS IN AN INCIPIENT OR ANY OTHER STAGE OF A TREND TOWARD A
LESSENING OF COMPETITION, OR THAT THE EFFECTIVE LEVEL OF CONCENTRATION
IN THE INDUSTRY HAS INCREASED.  MOREOVER, THERE IS NO INDICATION THAT
THE PRESENT MERGER, OR THE TREND IN THIS INDUSTRY AS A WHOLE, AUGURS
ANY DANGER WHATSOEVER FOR THE SMALL BUSINESSMAN.  THE COURT HAS
SUBSTITUTED BARE CONJECTURE FOR THE STATUTORY STANDARD OF A REASONABLE
PROBABILITY THAT COMPETITION MAY BE LESSENED.  (FN10) 

THE COURT RESTS ITS CONCLUSION ON THE "CRUCIAL POINT" THAT, IN THE 11
YEAR PERIOD BETWEEN 1950 AND 1961, THE NUMBER OF SINGLE-STORE GROCERY
FIRMS IN LOS ANGELES DECREASED 29% FROM 5,365 TO 3,818.  (FN11)  SUCH A
DECLINE SHOULD, OF COURSE, BE NO MORE THAN A FACT CALLING FOR FURTHER
INVESTIGATION OF THE COMPETITIVE TREND IN THE INDUSTRY.  FOR THE COURT,
HOWEVER, THAT DECLINE IS MADE THE END, NOT THE BEGINNING, OF THE
ANALYSIS.  IN THE COUNTING-OF-HEADS GAME PLAYED TODAY BY THE COURT, THE
REDUCTION IN THE NUMBER OF SINGLE-STORE OPERATORS BECOMES A YARDSTICK
FOR AUTOMATIC DISPOSITION OF CASES UNDER SEC 7. 

I BELIEVE THAT EVEN THE MOST SUPERFICIAL ANALYSIS OF THE RECORD MAKES
PLAIN THE FALLACY OF THE COURT'S SYLLOGISM THAT COMPETITION IS
NECESSARILY REDUCED WHEN THE BARE NUMBERS OF COMPETITORS HAS DECLINED. 
(FN12)  IN ANY MEANINGFUL SENSE, THE STRUCTURE OF THE LOS ANGELES
GROCERY MARKET REMAINS UNTHREATENED BY CONCENTRATION.  LOCAL
COMPETITION IS VIGOROUS TO A FAULT, NOT ONLY AMONG CHAIN STORES
THEMSELVES BUT ALSO BETWEEN CHAIN STORES AND SINGLE-STORE OPERATORS. 
THE CONTINUING POPULATION EXPLOSION OF THE LOS ANGELES AREA, WHICH HAS
OUTRUN THE EXPANSION PLANS OF EVEN THE LARGEST CHAINS, OFFERS A SURFEIT
OF BUSINESS OPPORTUNITY FOR STORES OF ALL SIZES.  (FN13) AFFILIATED
WITH COOPERATIVES THAT GIVE THE SMALLEST STORE THE BUYING STRENGTH OF
ITS LARGEST COMPETITOR, NEW STORES HAVE TAKEN FULL ADVANTAGE OF THE
REMARKABLE EASE OF ENTRY INTO THE MARKET.  AND, MOST IMPORTANT OF ALL,
THE RECORD SIMPLY CRIES OUT THAT THE NUMERICAL DECLINE IN THE NUMBER OF
SINGLE-STORE OWNERS IS THE RESULT OF TRANSCENDING SOCIAL AND
TECHNOLOGICAL CHANGES THAT POSITIVELY PRECLUDE THE INFERENCE THAT
COMPETITION HAS SUFFERED BECAUSE OF THE ATTRITION OF COMPETITORS. 

CHARTER TO ROLL BACK THE SUPERMARKET REVOLUTION.  YET THE COURT'S
OPINION IS HARDLY MORE THAN A REQUIEM FOR THE SO-CALLED "MOM AND POP"
GROCERY STORES - THE BAKERY AND BUTCHER SHOPS, THE VEGETABLE AND FISH
MARKETS - THAT ARE NOW ECONOMICALLY AND TECHNOLOGICALLY OBSOLETE IN
MANY PARTS OF THE COUNTRY.  NO ACTION BY THIS COURT CAN RESURRECT THE
OLD SINGLE-LINE LOS ANGELES FOOD STORES THAT HAVE BEEN RUN OVER BY THE
AUTOMOBILE OR OBLITERATED BY THE FREEWAY.  THE TRANSFORMATION OF
AMERICAN SOCIETY SINCE THE SECOND WORLD WAR HAS NOT COMPLETELY SHELVED
THESE SPECIALTY STORES, BUT IT HAS RELEGATED THEM TO A MUCH LESS
CENTRAL ROLE IN OUR FOOD ECONOMY.  TODAY'S DOMINANT ENTERPRISE IN FOOD
RETAILING IS THE SUPERMARKET.  ACCESSIBLE TO THE HOUSEWIFE'S AUTOMOBILE
FROM A WIDE RADIUS, IT HOUSES UNDER A SINGLE ROOF THE ENTIRE FOOD
REQUIREMENTS OF THE FAMILY.  ONLY THROUGH THE SORT OF REACTIONARY
PHILOSOPHY THAT THIS COURT LONG AGO REJECTED IN THE DUE PROCESS CLAUSE
AREA CAN THE COURT READ INTO THE LEGISLATIVE HISTORY OF SEC 7 ITS
ATTEMPT TO MAKE THE AUTOMOBILE STAND STILL, TO MOLD THE FOOD ECONOMY OF
TODAY INTO THE MARKET PATTERN OF ANOTHER ERA.  (FN14) 

THIS IS NOT A CASE IN WHICH THE RECORD IS EQUIVOCAL WITH REGARD TO
THE STATUS OF COMPETITION IN THE INDUSTRY IN QUESTION.  TO THE
CONTRARY, THE RECORD OFFERS ABUNDANT EVIDENCE OF THE DRAMATIC HISTORY
OF GROWTH AND PROSPERITY OF THE RETAIL FOOD BUSINESS IN LOS ANGELES. 

THE DISTRICT COURT'S FINDING OF FACT THAT THERE WAS NO INCREASE IN
MARKET CONCENTRATION BEFORE OR AFTER THE MERGER IS AMPLY SUPPORTED BY
THE EVIDENCE IF CONCENTRATION IS GAUGED BY ANY MEASURE OTHER THAN THAT
OF A CENSUS OF THE NUMBER OF COMPETING UNITS.  BETWEEN 1948 AND 1958,
THE MARKET SHARE OF SAFEWAY, THE LEADING GROCERY CHAIN IN LOS ANGELES,
DECLINED FROM 14% TO 8%.  THE COMBINED MARKET SHARES OF THE TOP TWO
CHAINS DECLINED FROM 21% TO 14% OVER THE SAME PERIOD; FOR THE PERIOD
1952-1958, THE COMBINED SHARES OF THE THREE, FOUR, AND FIVE LARGEST
FIRMS ALSO DECLINED.  IT IS TRUE THAT BETWEEN 1948 AND 1958, THE
COMBINED SHARES OF THE TOP 20 FIRMS IN THE MARKET INCREASED FROM 44% TO
57%.  THE CRUCIAL FACT HERE, HOWEVER, IS THAT SEVEN OF THESE TOP 20
FIRMS IN 1958 WERE NOT EVEN IN EXISTENCE AS CHAINS IN 1948.  BECAUSE OF
THE SUBSTANTIAL TURNOVER IN THE MEMBERSHIP OF THE TOP 20 FIRMS, THE
INCREASE IN MARKET SHARE OF THE TOP 20 AS A GROUP IS HARDLY A RELIABLE
INDICATOR OF ANY TENDENCY TOWARD MARKET CONCENTRATION.  (FN15) 

IN ADDITION, STATISTICS IN THE RECORD FOR THE PERIOD 1953-1962
STRONGLY SUGGEST THAT THE RETAIL GROCERY INDUSTRY IN LOS ANGELES IS
LESS CONCENTRATED TODAY THAN IT WAS A DECADE AGO.  DURING THIS PERIOD,
THE NUMBER OF CHAIN STORE FIRMS IN THE AREA ROSE FROM 96 TO 150, OR
56%.  THAT INCREASE OCCURRED OVERWHELMINGLY AMONG CHAINS OF THE VERY
SMALLEST SIZE, THOSE COMPOSED OF TWO OR THREE GROCERY STORES.  BETWEEN
1953 AND 1962, THE NUMBER OF SUCH "CHAINS" INCREASED FROM 56 TO 104, OR
86%.  ALTHOUGH CHAINS OF 10 OR MORE STORES INCREASED FROM 10 TO 24
DURING THE PERIOD, SEVEN OF THESE 24 CHAINS WERE NOT EVEN IN EXISTENCE
AS CHAINS IN LOS ANGELES IN 1953.  (FN16)    YET EVEN THESE DRAMATIC
STATISTICS DO NOT FULLY REVEAL THE DYNAMISM AND VITALITY OF COMPETITION
IN THE RETAIL GROCERY BUSINESS IN LOS ANGELES DURING THE PERIOD.  THE
RECORD SHOWS THAT AT VARIOUS TIMES DURING THE PERIOD 1953-1962, NO LESS
THAN 269 SEPARATE CHAINS WERE DOING BUSINESS IN LOS ANGELES, OF WHICH
208 WERE TWO- OR THREE-STORE CHAINS.  DURING THAT PERIOD, THEREFORE,
173 NEW CHAINS MADE THEIR APPEARANCE IN THE MARKET AREA, AND 119 CHAINS
WENT OUT OF EXISTENCE AS CHAIN STORES.  (FN17)  THE VAST MAJORITY OF
THIS MARKET TURBULENCE REPRESENTED TURNOVER IN CHAINS OF TWO OR THREE
STORES; 143 OF THE 173 NEW CHAINS BORN DURING THE PERIOD WERE CHAINS OF
THIS SIZE.  TESTIMONY IN THE RECORD SHOWS THAT, ALMOST WITHOUT
EXCEPTION, THESE NEW CHAINS WERE THE OUTGROWTH OF SUCCESSFUL ONE-STORE
OPERATIONS.  (FN18)  THERE IS NO INDICATION THAT COMPARABLE TURMOIL DID
NOT EQUALLY PERMEATE SINGLE-STORE OPERATIONS IN THE AREA.  (FN19)  IN
FASHIONING ITS PER SE RULE, BASED ON THE NET ARITHMETICAL DECLINE IN
THE NUMBER OF SINGLE-STORE OPERATORS, THE COURT COMPLETELY DISREGARDS
THE OBVIOUS PROCREATIVE VIGOR OF COMPETITION IN THE MARKET AS REFLECTED
IN THE TURBULENT HISTORY OF ENTRY AND EXIT OF COMPETING SMALL CHAINS. 

TO SUPPORT ITS CONCLUSION THE COURT INVOKES THREE SETS OF DATA
REGARDING ABSORPTION OF SMALLER FIRMS BY MERGER WITH LARGER FIRMS.  IN
EACH OF THE ACQUISITIONS DETAILED IN THE APPENDIX, TABLES 1 AND 2 OF
THE COURT'S OPINION, THE ACQUIRED UNITS WERE GROCERY CHAINS.  NOT ONE
OF THESE ACQUISITIONS WAS OF A FIRM OPERATING ONLY A SINGLE STORE. 
(FN20)  THE COURT CANNOT HAVE IT BOTH WAYS.  IT IS ONLY AMONG SINGLE
STORE OPERATORS THAT THE DECLINE IN THE UNIT NUMBER OF COMPETITORS, SO
HEAVILY RELIED UPON BY THE COURT, HAS TAKEN PLACE.  YET THE TABLES
REPRODUCED IN THE APPENDIX SHOW NOT A TRACE OF MERGER ACTIVITY
INVOLVING THE ACQUISITION OF SINGLE-STORE OPERATORS.  AND THE NUMBER OF
CHAINS IN THE AREA HAS IN FACT SHOWN A SUBSTANTIAL NET INCREASE DURING
THE PERIOD, IN SPITE OF THE FACT THAT SOME OF THE CHAINS HAVE BEEN
ABSORBED BY LARGER FIRMS.  HOW THEN CAN THE COURT RELY ON THESE
ACQUISITIONS AS EVIDENCE OF A TENDENCY TOWARD MARKET CONCENTRATION IN
THE AREA? 

THE COURT'S USE OF MARKET-ACQUISITION DATA FOR THE PERIOD 1954-1961,
(FN21) PREPARED BY THE GOVERNMENT FROM THE WORK SHEETS OF A DEFENSE
WITNESS, IS ALSO QUESTIONABLE FOR ANOTHER REASON.  DURING THAT PERIOD,
FOOD GIANT, ALPHA BETA, FOX, AND MAYFAIR WERE RANKED 7TH, 8TH, 9TH, AND
10TH, RESPECTIVELY, ON THE BASIS OF THE PERCENTAGE OF THEIR SALES IN
LOS ANGELES IN 1958, SO THAT THE IMPACT OF THEIR ACQUISITIONS, MADE IN
THE FACE OF COMPETITION BY THE TOP SIX CHAINS, IS CONSIDERABLY
BLUNTED.  THE REMARKABLE FEATURE DISCLOSED BY THESE DATA IS THAT NONE
OF THE TOP SIX FIRMS IN THE AREA EXPANDED BY ACQUISITION DURING THE
PERIOD.  (FN22) 

THE COURT'S RELIANCE ON THE FACT THAT NINE OF THE TOP 20 CHAINS
ACQUIRED 120 STORES IN THE LOS ANGELES AREA BETWEEN 1949 AND 1958 DOES
NOT WITHSTAND ANALYSIS IN LIGHT OF THE COMPLETE RECORD.  FORTY PERCENT
OF THESE ACQUISITIONS, REPRESENTING 48 STORES WITH GROSS SALES OF MORE
THAN $71,000,000, WERE MADE BY FOX, YOR-WAY, AND MCDANIELS, WHICH
RANKED 9TH, 11TH, AND 20TH, RESPECTIVELY, ACCORDING TO 1958 SALES IN
THE MARKET.  EACH OF THESE FIRMS SUBSEQUENTLY WENT INTO BANKRUPTCY AS A
RESULT OF OVEREXPANSION, UNDERCAPITALIZATION, OR INADEQUATE MANAGERIAL
EXPERIENCE.  THIS SUBSTANTIAL POST-ACQUISITION DEMISE OF RELATIVELY
LARGE CHAINS HARDLY COMPORTS WITH THE COURT'S TACIT PORTRAYAL OF THE
INEXORABLE MARCH OF THE MARKET TOWARD OLIGOPOLY. 

FURTHER, THE TABLE RELIED ON BY THE COURT TO SUSTAIN ITS VIEW THAT
ACQUISITIONS HAVE CONTINUED IN THE LOS ANGELES AREA AT A RAPID RATE IN
THE THREE-YEAR PERIOD FOLLOWING THIS MERGER INDISCRIMINATELY LUMPS
TOGETHER HORIZONTAL AND MARKET-EXTENSION MERGERS.  (FN23) ONLY 29
STORES, REPRESENTING 13 ACQUISITIONS, WERE ACQUIRED IN HORIZONTAL
MERGERS, AND THE RECORD REVEALS THAT NINE OF THESE 29 STORES WERE
ACQUIRED IN THE COURSE OF DISPOSITIONS IN BANKRUPTCY.  SUCH
ACQUISITIONS OF FAILING COMPANIES, OF COURSE, ARE IMMUNE FROM THE
CLAYTON ACT.  INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMMISSION, 280
U.S. 291, 301-303.  THUS, AT A TIME WHEN THE NUMBER OF SINGLE-STORE
CONCERNS WAS WELL OVER 3,500, HORIZONTAL MERGERS OVER A THREE-YEAR
PERIOD BETWEEN GOING CONCERNS ACHIEVED AT MOST ONLY THE DE MINIMIS
LEVEL OF 10 ACQUISITIONS INVOLVING 20 STORES.  IT CANNOT SERIOUSLY BE
MAINTAINED THAT THE EFFECT OF THE NEGLIGIBLE MARKET SHARE FORECLOSED BY
THESE HORIZONTAL MERGERS MAY BE SUBSTANTIALLY TO LESSEN COMPETITION
WITHIN THE MEANING OF SEC 7.  CF. BROWN SHOE CO. V. UNITED STATES, 370
U.S. 294, 329. 

THE GREAT MAJORITY OF THE POST-MERGER ACQUISITIONS DETAILED IN TABLE
2 IN THE APPENDIX OF THE COURT'S OPINION, ANTE, WERE OF THE MARKET
EXTENSION TYPE, INVOLVING NEITHER THE ELIMINATION OF DIRECT COMPETITORS
IN THE LOS ANGELES MARKET NOR INCREASED CONCENTRATION OF THE MARKET. 
THERE ARE SUBSTANTIAL ECONOMIC DISTINCTIONS BETWEEN SUCH MARKET
EXTENSION MERGERS AND CLASSICAL HORIZONTAL MERGERS.  (FN24)  WHATEVER
THE WISDOM OR LOGIC OF THE COURT'S ASSUMED ARITHMETIC PROPORTION
BETWEEN THE NUMBER OF SINGLE-STORE CONCERNS AND THE LEVEL OF
COMPETITION WITHIN THE MEANING OF SEC 7 AS APPLIED TO HORIZONTAL
MERGERS, IT IS SIMPLY NOT POSSIBLE TO MAKE THE FURTHER ASSUMPTION THAT
THE MERE OCCURRENCE OF MARKET-EXTENSION MERGERS IS ADEQUATE TO PROVE A
TENDENCY OF THE LOCAL MARKET TOWARD DECREASED COMPETITION. 

MOREOVER, CONTRARY TO THE ASSUMPTION ON WHICH THE COURT PROCEEDS, THE
RECORD ESTABLISHES THAT THE PRESENT MERGER ITSELF HAS SUBSTANTIAL, EVEN
PREDOMINANT, MARKET-EXTENSION OVERTONES.  THE DISTRICT COURT FOUND THAT
THE VON'S STORES WERE LOCATED IN THE SOUTHERN AND WESTERN PORTIONS OF
THE LOS ANGELES METROPOLITAN AREA, AND THAT THE SHOPPING BAG STORES
WERE LOCATED IN THE NORTHERN AND EASTERN PORTIONS.  IN EACH OF THE
AREAS IN WHICH VON'S AND SHOPPING BAG STORES COMPETED DIRECTLY, THERE
WERE ALSO AT LEAST SIX OTHER CHAIN STORES AND SEVERAL SMALLER STORES
COMPETING FOR THE PATRONAGE OF CUSTOMERS.  ON THE BASIS OF A
"HOUSEWIFE'S 10-MINUTE DRIVING TIME" TEST CONDUCTED FOR THE JUSTICE
DEPARTMENT BY A GOVERNMENT WITNESS, IT WAS SHOWN THAT SLIGHTLY MORE
THAN HALF OF THE VON'S AND SHOPPING BAG STORES WERE NOT IN A POSITION
TO COMPETE AT ALL WITH ONE ANOTHER IN THE MARKET.  (FN25)  EVEN AMONG
THOSE STORES WHICH COMPETED AT LEAST PARTIALLY WITH ONE ANOTHER, THE
OVERLAP IN SALES REPRESENTED ONLY APPROXIMATELY 25% OF THE COMBINED
SALES OF THE TWO CHAINS IN THE OVERALL LOS ANGELES AREA.  THE PRESENT
MERGER WAS THUS THREE PARTS MARKET-EXTENSION AND ONLY ONE PART
HORIZONTAL, BUT THE COURT NOWHERE RECOGNIZES THIS MARKET-EXTENSION
ASPECT THAT EXISTS WITHIN THE LOCAL MARKET ITSELF.  THE ACTUAL MARKET
SHARE FORECLOSED BY THE ELIMINATION OF SHOPPING BAG AS AN INDEPENDENT
COMPETITOR WAS THUS SLIGHTLY LESS THAN 1% OF THE TOTAL GROCERY STORE
SALES IN THE AREA.  THE SHARE OF THE MARKET PRE-EMPTED BY THE PRESENT
MERGER WAS THEREFORE PRACTICALLY IDENTICAL WITH THE 0.77% MARKET
FORECLOSURE ACCEPTED AS "QUITE INSUBSTANTIAL" BY THE COURT IN TAMPA
ELECTRIC CO. V. NASHVILLE COAL CO., 365 U.S. 320, 331-333. 

THE IRONY OF THIS CASE IS THAT THE COURT INVOKES ITS SWEEPING NEW
CONSTRUCTION OF SEC 7 TO THE DETRIMENT OF A MERGER BETWEEN TWO
RELATIVELY SUCCESSFUL, LOCAL, LARGELY FAMILY-OWNED CONCERNS, EACH OF
WHICH HAD LESS THAN 5% OF THE LOCAL MARKET AND NEITHER OF WHICH HAD ANY
PRIOR HISTORY OF GROWTH BY ACQUISITION.  (FN26)  IN A SENSE, THE
DEFENDANTS ARE BEING PUNISHED FOR THE SIN OF AGGRESSIVE COMPETITION. 
(FN27)  THE COURT IS INACCURATE IN ITS SUGGESTIONS, ANTE, PP.277-278,
THAT THE MERGER MAKES THESE FIRMS MORE "POWERFUL" THAN THEY WERE
BEFORE, AND THAT SHOPPING BAG WAS ITSELF A "POWERFUL" COMPETITOR AT THE
TIME OF THE MERGER.  THERE IS SIMPLY NO EVIDENCE IN THE RECORD, AND THE
COURT MAKES NO ATTEMPT TO DEMONSTRATE, THAT THE INCREMENT IN MARKET
SHARE OBTAINED BY THE COMBINED STORES CAN BE EQUATED WITH AN INCREASE
IN THE MARKET POWER OF THE COMBINED FIRM.  AND, ALTHOUGH SHOPPING BAG
WAS NOT A "FAILING COMPANY" WITHIN THE MEANING OF OUR DECISION IN
INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMMISSION, 280 U.S. 291, 301
303, THE RECORD AT LEAST CASTS STRONG DOUBT ON THE CONTENTION THAT IT
WAS A POWERFUL COMPETITOR.  (FN28)  THE DISTRICT COURT FOUND THAT
SHOPPING BAG SUFFERED FROM A LACK OF QUALIFIED EXECUTIVE PERSONNEL
(FN29) AND THAT, ALTHOUGH OVERALL SALES OF THE CHAIN HAD BEEN
INCREASING, ITS EARNINGS AND PROFITS WERE DECLINING.  (FN30)  FURTHER,
THE MERGER CLEARLY COMPORTED WITH "THE DESIRABILITY OF RETAINING 'LOCAL
CONTROL' OVER INDUSTRY" THAT THE COURT NOTED IN BROWN SHOE CO. V.
UNITED STATES, 370 U.S. 294, 315-316. 

WITH REGARD TO THE "PLIGHT" OF THE SMALL BUSINESSMAN, THE RECORD IS
UNEQUIVOCAL THAT HIS COMPETITIVE POSITION IS STRONG AND SECURE IN THE
LOS ANGELES RETAIL GROCERY INDUSTRY.  THE MOST AGGRESSIVE COMPETITORS
AGAINST THE LARGER RETAIL CHAINS ARE FREQUENTLY THE OPERATORS OF SINGLE
STORES.  (FN31)  THE VITALITY OF THESE INDEPENDENTS IS DIRECTLY
ATTRIBUTABLE TO THE RECENT AND SPECTACULAR GROWTH IN CALIFORNIA OF
THREE LARGE COOPERATIVE BUYING ORGANIZATIONS.  MEMBERSHIP IN THESE
GROUPS IS UNRESTRICTED; THROUGH THEM, SINGLE-STORE OPERATORS ARE ABLE
TO PURCHASE THEIR GOODS AT PRICES COMPETITIVE WITH THOSE OFFERED BY
SUPPLIERS EVEN TO THE LARGEST CHAINS.  (FN32)  THE RISE OF THESE
COOPERATIVE ORGANIZATIONS HAS INTRODUCED A SIGNIFICANT NEW SOURCE OF
COUNTERVAILING POWER AGAINST THE MARKET POWER OF THE CHAIN STORES,
WITHOUT IN ANY WAY SACRIFICING THE ADVANTAGES OF INDEPENDENT
OPERATION.  IN THE FACE OF THE SUBSTANTIAL ASSISTANCE AVAILABLE TO
INDEPENDENTS THROUGH MEMBERSHIP IN SUCH COOPERATIVES, THE COURT'S
IMPLICIT EQUATION BETWEEN THE MARKET POWER AND THE MARKET SHARE
RESULTING FROM THE PRESENT MERGER SEEMS COMPLETELY INVALID. 

MOREOVER, IT IS CLEAR THAT THERE ARE NO SUBSTANTIAL BARRIERS TO
MARKET ENTRY.  THE RECORD CONTAINS REFERENCES TO NUMEROUS HIGHLY
SUCCESSFUL INSTANCES OF ENTRY WITH MODEST INITIAL INVESTMENTS.  MANY OF
THE STORES OPENED BY NEW ENTRANTS WERE OBTAINED THROUGH THE DISPOSITION
OF UNWANTED OUTLETS BY CHAINS; FREQUENTLY THE NEW COMPETITORS WERE
THEMSELVES CHAIN-STORE EXECUTIVES WHO HAD RESIGNED TO ENTER THE MARKET
ON THEIR OWN.  ENHANCING FREE ACCESS TO THE MARKET IS THE ABSENCE OF
ANY SUCH RESTRICTIVE FACTORS AS PATENTED TECHNOLOGY, TRADE SECRETS, OR
SUBSTANTIAL PRODUCT DIFFERENTIATION. 

NUMEROUS OTHER FACTORS ATTEST TO THE PUGNACIOUS LEVEL OF GROCERY
COMPETITION IN LOS ANGELES, ALL OF THEM SILENTLY IGNORED BY THE COURT
IN ITS EMPHASIS SOLELY ON THE DECLINING NUMBER OF SINGLE-STORE
COMPETITORS IN THE MARKET.  THREE THOUSAND FIVE HUNDRED AND NINETY
SINGLE-STORE FIRMS IS A LOT OF GROCERY STORES.  THE LARGE NUMBER OF
SEPARATE COMPETITORS AND THE FREQUENT PRICE BATTLES BETWEEN THEM BELIE
ANY SUGGESTION THAT PRICE COMPETITION IN THE AREA IS EVEN REMOTELY
THREATENED BY A DESCENT TO THE SORT OF CONSCIOUSLY INTERDEPENDENT
PRICING THAT IS CHARACTERISTIC OF A MARKET TURNING THE CORNER TOWARD
OLIGOPOLY.  THE BIRTH OF DYNAMIC NEW COMPETITIVE FORCES - DISCOUNT FOOD
HOUSES AND FOOD DEPARTMENTS IN DEPARTMENT STORES, BANTAMS AND
SUPERETTES, DELI-LIQUOR STORES AND DRIVE-IN DAIRIES - PROMISES
UNREMITTING COMPETITION IN THE FUTURE.  IN THE MORE THAN FOUR YEARS
FOLLOWING THE MERGER, THE DISTRICT COURT FOUND NOT A SHRED OF EVIDENCE
THAT COMPETITION HAD BEEN IN ANY WAY IMPAIRED BY THE MERGER.  INDUSTRY
WITNESSES TESTIFIED OVERWHELMINGLY TO THE SAME EFFECT.  BY ANY
REALISTIC CRITERION, RETAIL FOOD COMPETITION IN LOS ANGELES IS TODAY
MORE INTENSE THAN EVER. 

THE HARSH STANDARD NOW APPLIED BY THE COURT TO HORIZONTAL MERGERS MAY
PREJUDICE IRREVOCABLY THE ALREADY DIFFICULT CHOICE FACED BY NUMEROUS
SUCCESSFUL SMALL AND MEDIUM-SIZED BUSINESSMEN IN THE MYRIAD SMALLER
MARKETS WHERE THE EFFECT OF TODAY'S DECISION WILL BE FELT, WHETHER TO
EXPAND BY BUYING OR BY BUILDING ADDITIONAL FACILITIES.  (FN33)  AND BY
FORECLOSING FUTURE SALE AS ONE ATTRACTIVE AVENUE OF EVENTUAL MARKET
EXIT, THE COURT'S DECISION MAY OVER THE LONG RUN DETER NEW MARKET ENTRY
AND TEND TO STIFLE THE VERY COMPETITION IT SEEKS TO FOSTER. 

IN A SINGLE SENTENCE AND AN OMNIBUS FOOTNOTE AT THE CLOSE OF ITS
OPINION, THE COURT PRONOUNCES ITS WORK CONSISTENT WITH THE LINE OF OUR
DECISIONS UNDER SEC 7 SINCE THE PASSAGE OF THE 1950 AMENDMENT.  THE
SOLE CONSISTENCY THAT I CAN FIND IS THAT IN LITIGATION UNDER SEC 7, THE
GOVERNMENT ALWAYS WINS.  THE ONLY PRECEDENT THAT IS EVEN WITHIN SIGHT
OF TODAY'S HOLDING IS U.S. V. PHILADELPHIA NAT. BANK, 374 U.S. 321.  IN
THAT CASE, IN THE INTEREST OF PRACTICAL JUDICIAL ADMINISTRATION, THE
COURT PROPOSED A SIMPLIFIED TEST OF MERGER ILLEGALITY:  "WE THINK THAT
A MERGER WHICH PRODUCES A FIRM CONTROLLING AN UNDUE PERCENTAGE SHARE OF
THE RELEVANT MARKET, AND RESULTS IN A SIGNIFICANT INCREASE IN THE
CONCENTRATION OF FIRMS IN THAT MARKET, IS SO INHERENTLY LIKELY TO
LESSEN COMPETITION SUBSTANTIALLY THAT IT MUST BE ENJOINED IN THE
ABSENCE OF EVIDENCE CLEARLY SHOWING THAT THE MERGER IS NOT LIKELY TO
HAVE SUCH ANTICOMPETITIVE EFFECTS."  U.S. V. PHILADELPHIA NAT. BANK,
SUPRA, AT 363.  (FN34)  THE MERGER BETWEEN VON'S AND SHOPPING BAG
PRODUCED A FIRM WITH 1.4% OF THE GROCERY STORES AND 7.5% OF GROCERY
SALES IN LOS ANGELES, AND RESULTED IN AN INCREASE OF 1.1% IN THE MARKET
SHARE ENJOYED BY THE TWO LARGEST FIRMS IN THE MARKET AND 3.3% IN THE
MARKET SHARE OF THE SIX LARGEST FIRMS.  THE FORMER TWO FIGURES ARE
HARDLY THE "UNDUE PERCENTAGE" OF THE MARKET, NOR ARE THE LATTER TWO
FIGURES THE "SIGNIFICANT INCREASE" IN CONCENTRATION, THAT WOULD MAKE
THIS MERGER INHERENTLY SUSPECT UNDER THE STANDARD OF PHILADELPHIA NAT.
BANK.  INSTEAD, THE CIRCUMSTANCES OF THE PRESENT MERGER FALL FAR
OUTSIDE THE SIMPLIFIED TEST ESTABLISHED BY THAT CASE FOR PRECISELY THE
SORT OF MERGER HERE INVOLVED.  (FN35)    THE TESTS OF ILLEGALITY UNDER
SEC 7 WERE "INTENDED TO BE SIMILAR TO THOSE WHICH THE COURTS HAVE
APPLIED IN INTERPRETING THE SAME LANGUAGE AS USED IN OTHER SECTIONS OF
THE CLAYTON ACT."  H.R. REP. NO. 1191, 81ST CONG., 1ST SESS., P. 8.  IN
PHILADELPHIA NAT. BANK, THE COURT WAS AT PAINS TO DEMONSTRATE THAT ITS
CONCLUSION WAS CONSISTENT WITH CASES UNDER SEC 3 OF THE CLAYTON ACT. 
SEE U.S. V. PHILADELPHIA NAT. BANK, 374 U.S. 321, 365-366.  THE COURT
DISDAINS ANY SUCH EFFORT TODAY.  UNTROUBLED BY THE LANGUAGE OF SEC 7,
ITS LEGISLATIVE HISTORY, AND THE CASES CONSTRUING EITHER THAT SECTION
OR ANY OTHER PROVISION OF THE ANTITRUST LAWS, THE COURT GROUNDS ITS
CONCLUSION SOLELY ON THE IMPRESSIONISTIC ASSERTION THAT THE LOS ANGELES
RETAIL FOOD INDUSTRY IS BECOMING "CONCENTRATED" BECAUSE THE NUMBER OF
SINGLE-STORE CONCERNS HAS DECLINED. 

THE EMOTIONAL IMPACT OF A MERGER BETWEEN THE THIRD AND SIXTH LARGEST
COMPETITORS IN A GIVEN MARKET, HOWEVER FRAGMENTED, IS UNDERSTANDABLE,
BUT THAT IMPACT CANNOT SUBSTITUTE FOR THE ANALYSIS OF THE EFFECT OF THE
MERGER ON COMPETITION THAT CONGRESS REQUIRED BY THE 1950 AMENDMENT. 
NOTHING IN THE PRESENT RECORD INDICATES THAT THERE IS MORE THAN AN
EPHEMERAL POSSIBILITY THAT THE EFFECT OF THIS MERGER MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION.  SECTION 7 CLEARLY TAKES
"REASONABLE PROBABILITY" AS ITS STANDARD.  THAT STANDARD HAS NOT BEEN
MET HERE, AND I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE DISTRICT
COURT. 

FN1  "A MERGER HAD TO BE FUNCTIONALLY VIEWED, IN THE CONTEXT OF ITS
PARTICULAR INDUSTRY."  BROWN SHOE CO. V. UNITED STATES, 370 U.S., AT
321-322.  "BOTH THE FEDERAL TRADE COMMISSION AND THE COURTS HAVE, IN
THE LIGHT OF CONGRESS' EXPRESSED INTENT, RECOGNIZED THE RELEVANCE AND
IMPORTANCE OF ECONOMIC DATA THAT PLACES ANY GIVEN MERGER UNDER
CONSIDERATION WITHIN AN INDUSTRY FRAMEWORK ALMOST INEVITABLY UNIQUE IN
EVERY CASE."  ID., AT 322, N. 38. 

FN2  "TAKEN AS A WHOLE, THE LEGISLATIVE HISTORY ILLUMINATES
CONGRESSIONAL CONCERN WITH PROTECTION OF COMPETITION, NOT COMPETITORS,
AND ITS DESIRE TO RESTRAIN MERGERS ONLY TO THE EXTENT THAT SUCH
COMBINATIONS MAY TEND TO LESSEN COMPETITION."  BROWN SHOE CO. V. UNITED
STATES, SUPRA, AT 320. 

FN3  THIS IS THE FIRST CASE TO REACH THE COURT UNDER THE 1950
AMENDMENT TO SEC 7 THAT INVOLVES A MERGER BETWEEN FIRMS ENGAGED SOLELY
IN RETAIL FOOD DISTRIBUTION.  KAYSEN & TURNER, ANTITRUST POLICY 40
(1959), HAVE DISCUSSED THIS INDUSTRY IN THE FOLLOWING TERMS: 

"AS A GUESS, WE CAN SAY THAT THE MOST IMPORTANT DISTRIBUTIVE TRADES,
ESPECIALLY THE FOOD TRADES, ARE STRUCTURALLY UNCONCENTRATED IN THE
METROPOLITAN AREAS  ...  .  THE SIGNIFICANCE OF STRUCTURAL OLIGOPOLY IN
TERMS OF POLICY IS FAR DIFFERENT IN THESE TRADES THAN IN MANUFACTURING
AND MINING  ... .  THE TRADITIONAL VIEW THAT THE LOCAL-MARKET
INDUSTRIES ARE ESSENTIALLY COMPETITIVE IN CHARACTER IS PROBABLY CORRECT
...  ." 

FN4 SEE, E.G., H.R. REP. NO. 1191, 81ST CONG., 1ST SESS., P. 3,
QUOTED IN FOOTNOTE 11 OF THE COURT'S OPINION.  MENTION OF THE RETAIL
FOOD INDUSTRY IS NOTABLY ABSENT IN THE LEGISLATIVE HISTORY.  ALTHOUGH
IT IS CLEAR THAT, IN ADDITION TO THE ALREADY HIGHLY OLIGOPOLIZED
INDUSTRIES, CONGRESS WAS ALSO CONCERNED WITH TRENDS TOWARD
CONCENTRATION IN INDUSTRIES THAT WERE STILL HIGHLY FRAGMENTED, THIS
CASE INVOLVES NOT EVEN A REMOTE APPROACH TO THE "MONSTER CONCENTRATION"
OF WHICH REPRESENTATIVE CELLER SPOKE IN INTRODUCING THE 1950 AMENDMENT
IN THE HOUSE OF REPRESENTATIVES.  95 CONG. REC. 11486. 

FN5  SEE, E.G., HEARING BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 2734, 81ST CONG., 1ST SESS., P. 12
(REMARKS OF SENATOR KEFAUVER). 

FN6  MUCH OF THE FUEL FOR THE CONGRESSIONAL DEBATES ON CONCENTRATION
IN THE AMERICAN ECONOMY WAS DERIVED FROM A CONTEMPORARY STUDY BY THE
FEDERAL TRADE COMMISSION ON CORPORATE ACQUISITIONS BETWEEN 1940 AND
1947.  SEE REPORT OF THE FEDERAL TRADE COMMISSION ON THE MERGER
MOVEMENT:  A SUMMARY REPORT (1948).  A CRITICAL STUDY OF THE FTC
REPORT, PUBLISHED WHILE THE 1950 AMENDMENT WAS PENDING IN CONGRESS,
CONCLUDED THAT THE EFFECT OF THE RECENT MERGER MOVEMENT ON
CONCENTRATION HAD BEEN SLIGHT.  LINTNER & BUTTERS, EFFECT OF MERGERS ON
INDUSTRIAL CONCENTRATION, 1940-1947, 32 REV. OF ECON.  & STATISTICS 30
(1950).  TWO ECONOMISTS FOR THE FEDERAL TRADE COMMISSION LATER
ACQUIESCED IN THAT CONCLUSION.  BLAIR & HOUGHTON, THE LINTNER-BUTTERS
ANALYSIS OF THE EFFECT OF MERGERS ON INDUSTRIAL CONCENTRATION, 1940
1947, 33 REV. OF ECON.  & STATISTICS 63, 67, N. 12 (1951). 

FN7  SEE S. REP. NO. 698, 63D CONG., 2D SESS., P. 1: 

"BROADLY STATED, THE BILL, IN ITS TREATMENT OF UNLAWFUL RESTRAINTS
AND MONOPOLIES, SEEKS TO PROHIBIT AND MAKE UNLAWFUL CERTAIN TRADE
PRACTICES WHICH, AS A RULE, SINGLY AND IN THEMSELVES, ARE NOT COVERED
BY THE ACT OF JULY 2, 1890 (THE SHERMAN ACT), OR OTHER EXISTING
ANTITRUST ACTS, AND THUS, BY MAKING THESE PRACTICES ILLEGAL, TO ARREST
THE CREATION OF TRUSTS, CONSPIRACIES, AND MONOPOLIES IN THEIR
INCIPIENCY AND BEFORE CONSUMMATION." 

SEE ALSO S. REP. NO. 1775, 81ST CONG., 2D SESS., PP. 4-5:  "THE
INTENT HERE, AS IN OTHER PARTS OF THE CLAYTON ACT, IS TO COPE WITH
MONOPOLISTIC TENDENCIES IN THEIR INCIPIENCY AND WELL BEFORE THEY HAVE
ATTAINED SUCH EFFECTS AS WOULD JUSTIFY A SHERMAN ACT PROCEEDING;" ID.,
P. 6:  "THE CONCEPT OF REASONABLE PROBABILITY CONVEYED BY THESE WORDS
('MAY BE') IS A NECESSARY ELEMENT IN ANY STATUTE WHICH SEEKS TO ARREST
RESTRAINTS OF TRADE IN THEIR INCIPIENCY AND BEFORE THEY DEVELOP INTO
FULL-FLEDGED RESTRAINTS VIOLATIVE OF THE SHERMAN ACT." 

THUS, THE SENATE REPORTS ON BOTH THE ORIGINAL CLAYTON ACT AND THE
1950 AMENDMENT CAREFULLY DELINEATE THE "INCIPIENCY" WITH WHICH THE
PROVISIONS ARE CONCERNED AS THAT OF MONOPOLIZATION OR CLASSICAL
RESTRAINTS OF TRADE UNDER THE SHERMAN ACT.  THE NOTION THAT
"INCIPIENCY" MIGHT BE EXPANDED TO REFER ALSO TO A LESSENING OF
COMPETITION FIRST APPEARED IN BROWN SHOE CO. V. UNITED STATES, 370 U.S.
294, 317. 

FN8  THE SENATE REPORT IS CLEAR ON THIS POINT: 

"THE USE OF THESE WORDS ('MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION') MEANS THAT THE BILL, IF ENACTED, WOULD NOT APPLY TO THE
MERE POSSIBILITY BUT ONLY TO THE REASONABLE PROBABILITY OF THE
PROSCRIBED EFFECT  ...  .  THE WORDS 'MAY BE' HAVE BEEN IN SECTION 7 OF
THE CLAYTON ACT SINCE 1914.  THE CONCEPT OF REASONABLE PROBABILITY
CONVEYED BY THESE WORDS IS A NECESSARY ELEMENT IN ANY STATUTE WHICH
SEEKS TO ARREST RESTRAINTS OF TRADE IN THEIR INCIPIENCY AND BEFORE THEY
DEVELOP INTO FULL-FLEDGED RESTRAINTS VIOLATIVE OF THE SHERMAN ACT."  S.
REP. NO. 1775, 81ST CONG., 2D SESS., P. 6. 

SEE ALSO 96 CONG. REC. 16453 (REMARKS OF SENATOR KEFAUVER).  CF. 51
CONG. REC. 14463-14464 (AMENDMENT OF SENATOR REED). 

FN9 ALTHOUGH CONGRESS ESCHEWED EXCLUSIVELY MATHEMATICAL TESTS FOR
ASSESSING THE IMPACT OF A MERGER, IT OFFERED SEVERAL GENERALIZATIONS
INDICATIVE OF THE SORT OF MERGER THAT MIGHT BE PROSCRIBED, E.G.:
WHETHER THE MERGER ELIMINATED AN ENTERPRISE THAT HAD BEEN A SUBSTANTIAL
FACTOR IN COMPETITION; WHETHER THE INCREASED SIZE OF THE ACQUIRING
CORPORATION THREATENED TO GIVE IT A DECISIVE ADVANTAGE OVER
COMPETITORS; WHETHER AN UNDUE NUMBER OF COMPETING ENTERPRISES HAD BEEN
ELIMINATED.  H.R. REP. NO. 1191, 81ST CONG., 1ST SESS., P. 8.  SEE
BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 321, N. 36.  ONLY THE
FIRST OF THESE GENERALIZATIONS IS ARGUABLY APPLICABLE TO THE PRESENT
MERGER; THE MARKET-EXTENSION ASPECTS OF THE MERGER, AS WELL AS THE
EVIDENCE OF SHOPPING BAG'S DECLINING PROFIT MARGIN AND WEAK PRICE
COMPETITION, SUGGEST THAT ANY CONCLUSION UNDER THIS TEST WOULD BE
EQUIVOCAL.  SEE INFRA, PP. 295-296; 298, N. 30.  SENATOR KEFAUVER
STATED EXPLICITLY ON THE SENATE FLOOR THAT THE MERE ELIMINATION OF
COMPETITION BETWEEN THE MERGED FIRMS WOULD NOT MAKE THE ACQUISITION
ILLEGAL; RATHER, "THE MERGER WOULD HAVE TO HAVE THE EFFECT OF LESSENING
COMPETITION GENERALLY."  96 CONG. REC. 16456. 

FN10  EIGHTEEN YEARS AGO, A DICTUM IN FEDERAL TRADE COMMISSION V.
MORTON SALT CO., 334 U.S. 37, 46, ADVERTED TO A "REASONABLE
POSSIBILITY" AS THE APPROPRIATE STANDARD FOR THE CORRESPONDING LANGUAGE
("MAY BE TO SUBSTANTIALLY LESSEN COMPETITION") UNDER SEC 3 OF THE
CLAYTON ACT, 15 U.S.C. SEC 14.  THE DICTUM PROVOKED A SHARP DISSENT IN
THAT CASE, ID., AT 55, 57-58, AND THE COURT SUBSEQUENTLY WITHDREW IT,
STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293, ONLY TO REINSTATE IT
AGAIN TODAY.  THIS ISSUE, WHICH APPEARED SETTLED AT THE TIME OF THE
1950 AMENDMENT, PROVOKED AN ACRIMONIOUS EXCHANGE DURING THE SENATE
HEARINGS.  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
THE JUDICIARY ON H.R. 2734, 81ST CONG., 1ST & 2D SESS., PP. 160-168. 

FN11  THE DECLINE CONTINUED AT APPROXIMATELY THE SAME RATE TO 1963,
THE LAST YEAR FOR WHICH DATA ARE AVAILABLE, WHEN THERE WERE 3,590
SINGLE-STORE GROCERY FIRMS IN THE AREA.  THE RECORD CONTAINS NO
BREAKDOWN OF THE FIGURES ON SINGLE-STORE CONCERNS.  IN AN EXTENSIVE
STUDY OF THE RETAIL GROCERY INDUSTRY ON A NATIONAL SCALE, THE FEDERAL
TRADE COMMISSION FOUND THAT BETWEEN 1939 AND 1954 THE TOTAL NUMBER OF
GROCERY STORES IN THE UNITED STATES DECLINED BY 109,000, OR 28%.  THE
ENTIRE DECREASE WAS SUFFERED BY STORES WITH ANNUAL GROSS SALES OF LESS
THAN $50,000.  DURING THE SAME PERIOD, THE NUMBER OF STORES IN ALL
HIGHER SALES BRACKETS INCREASED.  THE COMMISSION NOTED THAT THE CENSUS
FIGURES, FROM WHICH ITS DATA WERE TAKEN, INCLUDED AN UNDETERMINED
NUMBER OF GROCERY FIRMS LIQUIDATING AFTER 1948 THAT MERELY CLOSED THEIR
GROCERY OPERATIONS AND CONTINUED THEIR REMAINING LINES OF BUSINESS,
SUCH AS NONGROCERY RETAILING, FOOD WHOLESALING, FOOD MANUFACTURING,
ETC.  STAFF REPORT TO THE FEDERAL TRADE COMMISSION, ECONOMIC INQUIRY
INTO FOOD MARKETING, PART I, CONCENTRATION AND INTEGRATION IN RETAILING
48, 54 (1960). 

FN12  THE GENERALIZED CASE AGAINST THE COURT'S NUMERICAL APPROACH IS
STATED IN BOK, SECTION 7 OF THE CLAYTON ACT AND THE MERGING OF LAW AND
ECONOMICS, 74 HARV. L. REV. 226, 312, N. 261: 

"THERE ARE SERIOUS PROBLEMS CONNECTED WITH THE USE OF THIS
YARDSTICK.  FIRST, NOT EVERY FIRM CONTRIBUTES EQUALLY TO COMPETITION. 
IN PARTICULAR, THERE MAY BE A FRINGE OF FIRMS TOO SMALL TO BE ABLE TO
AFFECT PRICE AND PRODUCTION POLICIES IN THE MARKET AS A WHOLE. 
ALTERNATIVELY, CERTAIN FIRMS MAY BE MARGINAL IN THE SENSE THAT THEIR
COSTS AND FINANCIAL SITUATIONS PRECLUDE THEM FROM HAVING MUCH, IF ANY,
IMPACT ON MARKET CONDITIONS; INDEED THEY MAY BE ABLE TO REMAIN IN
OPERATION ONLY BECAUSE EXCESSIVE PROFITS ARE BEING EARNED BY THE
STRONGER FIRMS.  AN EXIT OF COMPANIES OF THIS SORT WOULD HAVE MUCH LESS
SIGNIFICANCE THAN A COUNTING OF CORPORATE HEADS WOULD IMPLY." 

FN13  BETWEEN 1953 AND 1961, THE POPULATION OF THE LOS ANGELES
METROPOLITAN AREA INCREASED FROM 4,300,000 TO 6,800,000 AND THE AVERAGE
POPULATION PER GROCERY STORE INCREASED FROM 695 TO 1,439.  ADDITIONAL
OPPORTUNITY FOR NEW STORES IN THE AREA RESULTS FROM THE GEOGRAPHICAL
DIVISION OF THE CITY INTO NUMEROUS SUBURBS, AS WELL AS FROM THE LACK OF
SPECIFIC STORE LOYALTY AMONG NEW RESIDENTS. 

FN14  CF. FERGUSON V. SKRUPA, 372 U.S. 726.  IN CRITICIZING A RECENT
DECISION OF THE FEDERAL TRADE COMMISSION, ONE COMMENTATOR HAS STATED,
IN TERMS APPLICABLE MUTATIS MUTANDIS TO THE COURT'S DECISION IN THE
PRESENT CASE: 

"  ...  ANY CHILD ALIVE IN THE 1950'S COULD SEE THAT A RESTRUCTURING
OF FOOD RETAILING WAS THEN GOING ON.  THE BUSINESS WAS ADJUSTING
ITSELF, THROUGH MARKET MECHANISMS THAT INCLUDED MERGER, TO VAST AND
PROFOUND CHANGES IN THE AMERICAN WAY OF LIFE.  THERE IS NOT A WORD IN
THE FTC MAJORITY OPINION THAT RELATES CHANGES IN THE NUMBER OF STORES
AND CHAINS TO THE PROLIFERATION OF SUBURBS, THE CONSTRUCTION OF
SHOPPING CENTERS, AND THE FINAL TRIUMPH OF THE SUPERMARKET - AN
INNOVATION IN RETAILING THAT HAS SINCE SPREAD ACROSS THE WESTERN
WORLD.  THE MOST IMPORTANT SINGLE CAUSE OF THESE CHANGES WAS THE
AUTOMOBILE REVOLUTION  ...  WHICH NOT EVEN THE FTC CAN STOP. 

     * *         *         *         * 

"  ...  PLENTY OF LIVING AMERICAN MEN AND WOMEN REMEMBER AN ERA WHEN
VIRTUALLY ALL GROCERIES WERE SOLD THROUGH VERY SMALL STORES NONE OF
WHICH HAD 'ANY SIGNIFICANT MARKET SHARE.'  WAS THIS ERA THE HIGH POINT
OF COMPETITION IN FOOD RETAILING?  MANY LITTLE TOWNS HAD, IN FACT, ONLY
ONE PLACE WHERE A GIVEN KIND OF FOOD COULD BE BOUGHT.  IN A TYPICAL
CITY NEIGHBORHOOD, DEFINED BY THE RANGE OF A HOUSEWIFE'S WILLINGNESS TO
LUG GROCERIES HOME ON FOOT, THERE MIGHT BE THREE OR FOUR RELAXED
'COMPETITORS.'  IF SHE DID NOT LIKE THE PRICE OR QUALITY OFFERED BY
THEM, SHE COULD TAKE HER BLACK-STRING MARKET BAG, BOARD A TROLLEY CAR,
AND TRY HER LUCK AMONG THE RELAXED 'COMPETITORS' OF SOME OTHER
NEIGHBORHOOD."  WAYS, A NEW "WORST" IN ANTITRUST, FORTUNE, APRIL 1966,
PP. 111-112. 

IN THE PRESENT CASE, THE DISTRICT COURT FOUND THAT IN THE ERA
PRECEDING THE RISE OF THE SUPERMARKETS, "THE AREA FROM WHICH THE
TYPICAL STORE DREW MOST OF ITS CUSTOMERS WAS LIMITED TO A BLOCK OR TWO
IN ANY DIRECTION AND IF A PARTICULAR GROCERY STORE HAPPENED TO BE THE
ONLY ONE IN ITS IMMEDIATE NEIGHBORHOOD, IT HAD A VIRTUAL MONOPOLY OF
LOCAL TRADE."  THUS, THE COURT'S APHORISM IN U.S. V. PHILADELPHIA NAT.
BANK, 374 U.S. 321, 363 - THAT "COMPETITION IS LIKELY TO BE GREATEST
WHEN THERE ARE MANY SELLERS, NONE OF WHICH HAS ANY SIGNIFICANT MARKET
SHARE" - IS PECULIARLY MALADROIT IN THE HISTORIC CONTEXT OF THE RETAIL
FOOD INDUSTRY.  SEE ALSO HAMPE & WITTENBERG, THE LIFELINE OF AMERICA:
DEVELOPMENT OF THE FOOD INDUSTRY 313-372 (1964); LEBHAR, CHAIN STORES
IN AMERICA 1859-1962, PP. 348-390 (1963). 

FN15  SEE JOSKOW, STRUCTURAL INDICIA:  RANK-SHIFT ANALYSIS AS A
SUPPLEMENT TO CONCENTRATION RATIOS, VI ANTITRUST BULLETIN 9 (1961).  IN
ADDITION, THE OVERALL MARKET SHARE OF THE TOP 20 FIRMS IN FACT SHOWED A
SLIGHT DECLINE BETWEEN 1958 AND 1960.  THE STATEMENT IN THE CONCURRING
OPINION IN THE PRESENT CASE, THAT "ALL BUT TWO OF THE TOP 10 FIRMS IN
1958 WERE VERY PROBABLY ALSO AMONG THE TOP 10 IN 1948 OR HAD ACQUIRED A
FIRM THAT WAS AMONG THE TOP 10," IS BASED ON CONJECTURE.  THE RECORD
DEMONSTRATES ONLY THAT THE TOP FOUR FIRMS IN 1948 WERE AMONG THE TOP 10
FIRMS IN 1958; THE RECORD NEITHER IDENTIFIES THE REMAINING SIX OF THE
TOP 10 FIRMS IN 1948 NOR CHARTS THEIR SUBSEQUENT HISTORY.    FN16  FOR
A SIMILAR STUDY OF THE RETAIL FOOD INDUSTRY AT THE NATIONAL LEVEL, SEE
LEBHAR, SMALL CHAIN VIRILITY A BAR TO MONOPOLY, CHAIN STORE AGE, JAN.
1962, P. E20.  SEE ALSO GOULD, THE RELATION OF SALES GROWTH TO THE SIZE
OF MULTI-STORE FOOD RETAILERS 6 (1966)(INVERSE CORRELATION FOUND
BETWEEN SALES GROWTH AND SIZE OF CHAINS WITH FOUR OR MORE STORES). 
FN17  OF THESE LATTER 119 CHAINS, 66 WENT OUT OF BUSINESS ALTOGETHER,
28 REDUCED THEIR OPERATIONS TO A SINGLE STORE, AND 25 WERE ELIMINATED
AS SEPARATE COMPETITORS AS A RESULT OF ACQUISITIONS BY OTHER CHAINS. 

FN18  ON THE BASIS OF THESE FACTS, ONE WITNESS CONCLUDED: 

"THE APPARENT WILLINGNESS AND ABILITY OF GROCERS TO EXPAND AND CREATE
NEW CHAIN ENTITIES AT THE STAGGERING RATE OF MORE THAN 17 A YEAR, AND
THE GROWTH POTENTIAL OF NEW CHAINS, PRECLUDES IN MY OPINION THE
POSSIBILITY THAT THE RETAIL GROCERY BUSINESS IN LOS ANGELES WILL BECOME
EITHER MONOPOLISTIC OR OLIGOPOLISTIC IN THE FORESEEABLE FUTURE.  IT
MUST BE REMEMBERED THAT IN 1953, ONLY 10 CHAINS WITH AS MANY AS 10
STORES EACH WERE OPERATING IN THE AREA.  THESE CHAINS ARE RECOGNIZED AS
BEING AMONG THE BEST MANAGED, MOST SUCCESSFUL AND MOST AGGRESSIVE
SUPERMARKET OPERATORS IN THE COUNTRY.  THEY THEMSELVES HAVE ENGAGED IN
EXPANSION PROGRAMS OF SIGNIFICANT PROPORTIONS SINCE 1953.  YET, 10
YEARS LATER, INSTEAD OF HAVING SWEPT ASIDE ALL COMPETITION AND BEING
LEFT ALONE TO COMPETE AMONG THEMSELVES, THESE SAME 10 CHAINS ARE NOW
FACED WITH THE NECESSITY OF COMPETING AGAINST NO LESS THAN 14 NEW
CHAINS OF 10 OR MORE STORES EACH, A SIGNIFICANTLY GREATER NUMBER OF
SMALLER CHAINS AND A HOST OF SUCCESSFUL SINGLE STORE OPERATORS, OF WHOM
MANY ARE AFFILIATED WITH POWERFUL VOLUNTARY CHAINS OR OTHER COOPERATIVE
GROUPS  ...  .  THE GROWTH OF INDEPENDENTS INTO CHAINS AND OF SMALL
CHAINS INTO LARGER ONES  ...  DEMONSTRATES CONVINCINGLY THAT SMALL
CONCERNS DON'T HAVE TO REMAIN SMALL IN LOS ANGELES." 

FN19  DATA FOR 1960, THE ONLY YEAR FOR WHICH SUCH FIGURES ARE
AVAILABLE IN THE RECORD, REVEAL A COMPARABLE AGITATION OF ENTRY AND
EXIT AMONG OPERATORS OF SINGLE STORES.  ALTHOUGH THERE WAS A NET LOSS
OF 132 SINGLE-OUTLET STORES IN 1960, 128 NEW SINGLE-OUTLET STORES
OPENED DURING THE YEAR. 

FN20  AS TO TABLE 1 IN THE APPENDIX OF THE COURT'S OPINION, THIS FACT
IS OBVIOUS ON THE FACE OF THE TABLE.  AS TO TABLE 2 IN THE APPENDIX,
EXAMINATION OF THE RECORD DISCLOSES THAT EACH OF THE NINE ACQUISITIONS
LISTED AS INVOLVING A SINGLE STORE REPRESENTED PURCHASES OF SINGLE
STORES FROM CHAINS RANGING IN SIZE FROM TWO TO 49 STORES.  (TABLES
OMITTED.) 

FN21  SEE TABLE 1 IN THE APPENDIX OF THE COURT'S OPINION.  (TABLE
OMITTED.) 

FN22  TABLE 1 IN THE APPENDIX OF THE COURT'S OPINION IS SOMEWHAT
MISLEADING IN THAT IT WEIGHTS THE DATA FROM WHICH IT IS DRAWN IN FAVOR
OF THE ACQUISITION BY GROCERY CHAINS OF OTHER CHAINS CONSISTING OF
RELATIVELY LARGER NUMBERS OF STORE UNITS.  THE COMPLETE DATA OF THE
WITNESS INCLUDED SEVERAL ACQUISITIONS OF ONE- AND TWO-STORE CONCERNS,
TOGETHER WITH THE DISPOSITION OF ONE TEN-STORE CHAIN TO VARIOUS
INDIVIDUALS. 

FN23  SEE TABLE 2 IN THE APPENDIX OF THE COURT'S OPINION.  THIS
TABLE, NOT A PART OF THE RECORD, WAS SUBMITTED BY THE GOVERNMENT IN ITS
REPLY BRIEF, FILED ON THE EVE OF ORAL ARGUMENT.  (TABLE OMITTED.) 

FN24  SEE FOREMOST DAIRIES, INC., 60 F.T.C. 944; BEATRICE FOODS CO.,
F.T.C. DOCKET NO. 6653 (APRIL 26, 1965); NATIONAL TEA CO., F.T.C.
DOCKET NO. 7453 (MARCH 4, 1966).  CF. UNITED STATES V. PENN-OLIN
CHEMICAL CO., 378 U.S. 158; PROCTER & GAMBLE CO., F.T.C. DOCKET NO.
6901 (NOV. 26, 1963), REV'D 358 F.2D 74 (C.A. 6TH CIR.); TURNER,
CONGLOMERATE MERGERS AND SECTION 7 OF THE CLAYTON ACT, 78 HARV. L. REV.
1313. 

FN25  EVIDENCE INTRODUCED BY THE DEFENDANTS INDICATED THAT THE
OVERLAP BETWEEN THE VON'S AND SHOPPING BAG STORES WAS SIGNIFICANTLY
SMALLER THAN THAT PROPOSED BY THE GOVERNMENT WITNESS. 

FN26  AT THE TIME OF THE MERGER IN 1960, VON'S OPERATED 28 RETAIL
GROCERY STORES IN THE LOS ANGELES AREA.  IT COMMENCED OPERATION AS A
PARTNERSHIP OF THE VON DER AHE FAMILY IN 1932, DURING THE DEPRESSION,
WITH A FOOD CONCESSION IN A SMALL GROCERY STORE.  SHOPPING BAG OPERATED
36 STORES IN LOS ANGELES AT THE TIME OF THE MERGER; IT COMMENCED
OPERATION AS A PARTNERSHIP IN A SMALL GROCERY STORE IN 1930.  SO FAR AS
THE RECORD REVEALS, THE COMPETITIVE BEHAVIOR OF THESE FIRMS WAS
IMPECCABLE THROUGHOUT THEIR EXPANSION, WHICH TOOK PLACE SOLELY BY
INTERNAL GROWTH.  IN DISCUSSING THE SUCCESS OF COMPARABLE FIRMS VIS-A
VIS THE SHERMAN ACT, JUDGE LEARNED HAND STATED, "THE ACT DOES NOT MEAN
TO CONDEMN THE RESULTANT OF THOSE VERY FORCES WHICH IT IS ITS PRIME
OBJECT TO FOSTER:  FINIS OPUS CORONAT.  THE SUCCESSFUL COMPETITOR,
HAVING BEEN URGED TO COMPETE, MUST NOT BE TURNED UPON WHEN HE WINS." 
UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 430. 

FN27  NOR IS IT ALTOGETHER EASY TO ESCAPE THE FEELING THAT IT IS NOT
SO MUCH THIS MERGER, BUT LOS ANGELES ITSELF, THAT IS BEING INVALIDATED
HERE.  CF. ADELMAN, ANTITRUST PROBLEMS: THE ANTIMERGER ACT, 1950-60, 51
AM. ECON.  REV.  236, 243 (MAY 1961):  "IN THE ANTITRUST DICTIONARY,
'POWERFUL' HAS NO NECESSARY CONNECTION WITH MONOPOLY POWER OR MARKET
CONTROL OR EVEN MARKET SHARE.  IT MEANS  ... ONE FOUR-LETTER WORD:
SIZE."  LOS ANGELES IS, TO BE SURE, A BIG PLACE.  ALTHOUGH SHOPPING
BAG'S SHARE OF THE LOS ANGELES MARKET WAS ONLY 4.2%, ITS SALES IN 1958
TOTALED $84,000,000.  COMPARE THE COURT'S STATEMENT IN TAMPA ELECTRIC
CO. V. NASHVILLE COAL CO., 365 U.S. 320, 333-334: 

"IT IS URGED THAT THE PRESENT CONTRACT PRE-EMPTS COMPETITION TO THE
EXTENT OF PURCHASES WORTH PERHAPS $128,000,000, AND THAT THIS 'IS, OF
COURSE, NOT INSIGNIFICANT OR INSUBSTANTIAL.'  WHILE $128,000,000 IS A
CONSIDERABLE SUM OF MONEY, EVEN IN THESE DAYS, THE DOLLAR VOLUME, BY
ITSELF, IS NOT THE TEST  ...  ." 

FN28  THIS IS NOT A "MERGER BETWEEN TWO SMALL COMPANIES TO ENABLE THE
COMBINATION TO COMPETE MORE EFFECTIVELY WITH LARGER CORPORATIONS
DOMINATING THE RELEVANT MARKET," BROWN SHOE CO. V. UNITED STATES, 370
U.S. 294, 319; CF. HOUSE HEARING, SUPRA, N. 5, PP. 40-41; SENATE
HEARINGS, SUPRA, N. 10, PP. 6, 51; 95 CONG. REC. 11486, 11488, 11506;
96 CONG. REC. 16436; H.R. REP. NO. 1191, 81ST CONG., 1ST SESS., PP. 6
8; S. REP. NO. 1775, 81ST CONG., 2D SESS., P. 4.  HOWEVER, THE COURT
TODAY IN A GRATUITOUS DICTUM, ANTE, P. 277, UNDERCUTS EVEN THAT
PRINCIPLE BY CONFINING IT TO CASES IN WHICH COMPETITORS ARE OBLIGED TO
MERGE TO SAVE THEMSELVES FROM DESTRUCTION BY A LARGER AND MORE POWERFUL
COMPETITOR. 

FN29 MR. HAYDEN, THE PRESIDENT AND PRINCIPAL STOCKHOLDER OF SHOPPING
BAG, WAS ADVANCED IN YEARS AND WAS CONCERNED OVER THE ABSENCE OF A
STRONG MANAGEMENT STAFF THAT COULD TAKE OVER HIS RESPONSIBILITIES. 

FN30  VON'S WAS A CONSIDERABLY MORE SUCCESSFUL COMPETITOR THAN
SHOPPING BAG.  SHOPPING BAG'S NET INCOME AS A PERCENTAGE OF TOTAL SALES
DECLINED FROM 1.6% IN 1957 TO 0.9% IN 1959, AND ITS NET PROFIT AS A
PERCENTAGE OF TOTAL ASSETS DECLINED FROM 6.6% TO 3.2%.  DURING THE SAME
PERIOD, THE NET INCOME OF VON'S INCREASED FROM 2.1% TO 2.3%, AND ITS
NET PROFITS DECLINED FROM 12.7% TO 10.8%. 

FN31  ONE SINGLE-STORE OPERATOR, LOCATED ADJACENT TO ONE SUPERMARKET
AND WITHIN A MILE OF TWO OTHERS, TESTIFIED, "I HAVE OFTEN BEEN ASKED IF
I COULD COMPETE SUCCESSFULLY AGAINST THIS SORT OF COMPETITION.  MY
ANSWER IS AND ALWAYS HAS BEEN THAT THE QUESTION IS NOT WHETHER I CAN
COMPETE AGAINST THEM, BUT WHETHER THEY CAN COMPETE AGAINST ME." 

ANOTHER SINGLE-STORE OPERATOR TESTIFIED, "COMPETITION IN THE GROCERY
BUSINESS IS ON A STORE-BY-STORE BASIS AND ANY AGGRESSIVE AND ABLE
OPERATOR LIKE MYSELF CAN OUT-COMPETE THE STORE OF ANY OF THE CHAINS
BECAUSE OF PERSONALIZED SERVICE, BETTER LABOR RELATIONS, AND BEING IN
PERSONAL CHARGE OF THE STORE AND SEEING THAT IT IS RUN PROPERLY." 

A THIRD SINGLE-STORE OPERATOR TESTIFIED, "THE CHAINS IN THIS AREA ARE
GOOD OPERATORS, BUT WHEN THEY GROW TOO LARGE, THEY ARE ACTUALLY EASIER
TO COMPETE WITH FROM AN INDEPENDENT'S VIEWPOINT.  IF I HAD A CHOICE, I
WOULD RATHER OPERATE A STORE NEAR A CHAIN UNIT THAN NEAR ANOTHER
INDEPENDENT." 

FN32  SEE GENERALLY STAFF REPORT TO THE FEDERAL TRADE COMMISSION,
ECONOMIC INQUIRY INTO FOOD MARKETING, PART I, CONCENTRATION AND
INTEGRATION IN RETAILING, C. VI, "RETAILER-OWNED COOPERATIVE FOOD
WHOLESALERS"; C. VII, "WHOLESALER-SPONSORED VOLUNTARY RETAIL GROUPS"
(1960).  THE ANNUAL SALES OF CERTIFIED GROCERS OF CALIFORNIA, LTD., A
RETAILER-OWNED COOPERATIVE WHOSE MEMBERS DO BUSINESS PRINCIPALLY IN THE
LOS ANGELES AREA, ROSE FOURFOLD FROM $87,000,000 IN 1948 TO
$345,000,000 IN 1962, AND THE VOLUME OF ITS PURCHASES EXCEEDED THAT OF
ALL BUT THE LARGEST NATIONAL CHAINS DOING BUSINESS IN LOS ANGELES. 
MOST OF THE LEADING CHAINS IN THE AREA BEGAN DEVELOPMENT IN ASSOCIATION
WITH CERTIFIED GROCERS, CALLED THE "MOTHER" OF THE INDUSTRY.  IN SOME
CASES THE COOPERATIVES WERE ABLE TO OFFER EVEN LOWER PRICES TO THEIR
MEMBERS THAN COMPETING CHAINS COULD OBTAIN.  THE DISTRICT COURT FOUND
THAT THE COOPERATIVES ALSO PROVIDED THEIR MEMBERS WITH ASSISTANCE IN
MERCHANDISING, ADVERTISING, PROMOTIONS, INVENTORY CONTROL, AND EVEN THE
FINANCING OF NEW ENTRY. 

FN33  SEE BOK, SECTION 7 OF THE CLAYTON ACT AND THE MERGING OF LAW
AND ECONOMICS, 74 HARV.  L. REV. 226, 302-303 (1960). 

FN34  IN A FOOTNOTE, THE COURT EMPHASIZED THE COROLLARY PRINCIPLE
THAT, "IF CONCENTRATION IS ALREADY GREAT, THE IMPORTANCE OF PREVENTING
EVEN SLIGHT INCREASES IN CONCENTRATION AND SO PRESERVING THE
POSSIBILITY OF EVENTUAL DECONCENTRATION IS CORRESPONDINGLY GREAT." 
U.S. V. PHILADELPHIA NAT. BANK, 374 U.S. 321, 365, N. 42.  THAT
COROLLARY, OF COURSE, HAS NO APPLICATION HERE, SINCE THE LOS ANGELES
RETAIL GROCERY MARKET CAN IN NO SENSE BE CHARACTERIZED AS ONE IN WHICH
"CONCENTRATION IS ALREADY GREAT."  COMPARE UNITED STATES V. ALUMINUM
CO. OF AMERICA, 377 U.S. 271; UNITED STATES V. CONTINENTAL CAN CO., 378
U.S. 441.  THE IMPORTANCE OF A TREND TOWARD CONCENTRATION IN THE
PARTICULAR INDUSTRY IN QUESTION WAS RECOGNIZED IN BROWN SHOE CO. V.
UNITED STATES, 370 U.S. 294, 332.  SEE ALSO PILLSBURY MILLS, INC., 50
F.T.C. 555, 572-573; UNITED STATES V. BETHLEHEM STEEL CORP., 168 F.
SUPP. 576, 604-607 (D.C.S.D.N.Y.); U.S. ATTY. GEN. NAT. COMM. TO STUDY
THE ANTITRUST LAWS, REPORT 124 (1955). 

FN35  AS A RESULT OF THE MERGER, THE MARKET SHARE OF THE TWO LARGEST
FIRMS INCREASED FROM 14.4% TO 15.5%, AND THE SHARE OF THE SIX LARGEST
FIRMS INCREASED FROM 32.1% TO 35.4%.  THE MERGER INVOLVED IN
PHILADELPHIA NAT. BANK PRODUCED A SINGLE FIRM CONTROLLING 30% OF THE
MARKET, AND RESULTED IN AN INCREASE FROM 44% TO 59% IN THE MARKET SHARE
OF THE TWO LARGEST FIRMS IN THE MARKET.  THE COURT'S OPINION IS
REMARKABLE FOR ITS FAILURE TO SUPPORT ITS CONCLUSION BY REFERENCE TO
EVEN A SINGLE PIECE OF ECONOMIC THEORY.  I SHALL NOT DWELL HERE ON THE
BAROMETERS OF COMPETITION THAT HAVE BEEN SUGGESTED BY THE
COMMENTATORS.  BUT IT SEEMS IMPORTANT TO NOTE THAT THE PRESENT MERGER
FALLS EITHER OUTSIDE, OR AT THE VERY FRINGE, OF THE VARIOUS MECHANICAL
TESTS THAT HAVE BEEN PROPOSED.  SEE, E. G., KAYSEN & TURNER, ANTITRUST
POLICY 133-136 (1959) (HORIZONTAL MERGER WITH DIRECT COMPETITOR IS
PRIMA FACIE UNLAWFUL WHERE ACQUIRING COMPANY ACCOUNTS FOR 20% OR MORE
OF THE MARKET, OR WHERE MERGING COMPANIES TOGETHER CONSTITUTE 20% OR
MORE OF THE MARKET; ACQUISITIONS PRODUCING LESS THAN 20% MARKET CONTROL
UNLAWFUL ONLY WHERE SPECIAL CIRCUMSTANCES ARE PRESENT, SUCH AS SERIOUS
BARRIERS TO ENTRY OR SUBSTANTIAL INFLUENCE ON PRICES BY THE ACQUIRED
COMPANY); STIGLER, MERGERS AND PREVENTIVE ANTITRUST POLICY, 104 U. PA.
L. REV. 176, 179-182 (1955)(ACQUISITION UNLAWFUL IF IT PRODUCES A
COMBINED MARKET SHARE OF 20% OR MORE; ACQUISITION PERMITTED IF THE
COMBINED SHARE IS LESS THAN 5-10%); BOK, SECTION 7 OF THE CLAYTON ACT
AND THE MERGING OF LAW AND ECONOMICS, 74 HARV. L. REV. 226, 308-329
(1960)(NO MERGER BY THE DOMINANT FIRM IN AN INDUSTRY IF ITS MARKET
SHARE IS INCREASED BY MORE THAN 2-3%; NO MERGER BY OTHER LARGE FIRMS IN
THE INDUSTRY WHERE THE COMBINED MARKET SHARES OF THE TWO-TO-EIGHT
LARGEST FIRMS AFTER THE MERGER ARE INCREASED BY 7-8% OR MORE OVER THE
SHARES THAT EXISTED AT ANY TIME DURING THE PRECEDING 5-10 YEARS; NO
MERGER WHERE ACQUIRED FIRM HAS 5% MARKET SHARE OR MORE).  SEE ALSO
MARKHAM, MERGER POLICY UNDER THE NEW SECTION 7: A SIX-YEAR APPRAISAL,
43 VA. L. REV. 489, 521-522 (1957).  THE 40% RULE PROMOTED BY THE
CONCURRING OPINION IN THE PRESENT CASE SEEMS NO MORE THAN AN AD HOC
ENDEAVOR TO RATIONALIZE THE HOLDING OF THE COURT. 
..END :




















RINALDI V. YEAGER 384 U.S. 305 


NO. 940.  ARGUED APRIL 21, 1966.  - DECIDED MAY 31, 1966.  - 238 F.
SUPP. 960, REVERSED AND REMANDED. 


APPELLANT WAS CONVICTED OF A CRIMINAL OFFENSE IN NEW JERSEY AND
SENTENCED TO PRISON.  AT HIS REQUEST, THE COUNTY FURNISHED HIM WITH A
TRIAL TRANSCRIPT IN CONNECTION WITH HIS IN FORMA PAUPERIS APPEAL.  THE
APPEAL PROVED UNSUCCESSFUL.  HIS PRISON PAY WAS WITHHELD TO REIMBURSE
THE COUNTY FOR THE COST OF THE TRANSCRIPT UNDER A STATUTE PROVIDING FOR
REIMBURSEMENT FROM THE INSTITUTIONAL EARNINGS OF AN UNSUCCESSFUL
CRIMINAL APPELLANT.  THE STATUTE REQUIRES NO SUCH REPAYMENT FROM AN
UNSUCCESSFUL APPELLANT GIVEN A SUSPENDED SENTENCE, PLACED ON PROBATION,
OR SENTENCED ONLY TO PAY A FINE.  A THREE-JUDGE FEDERAL DISTRICT COURT
REJECTED APPELLANT'S CLAIM THAT THE STATUTE IS UNCONSTITUTIONAL.  HELD:
A STATE STATUTE REQUIRING AN UNSUCCESSFUL APPELLANT TO REPAY THE COST
OF A TRANSCRIPT USED IN PREPARING HIS APPEAL WHICH APPLIES ONLY TO ONE
INCARCERATED BUT NOT TO OTHERS CONSTITUTES INVIDIOUS DISCRIMINATION IN
VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
PP. 308-311. 

RINALDI V. YEAGER, WARDEN, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, JOSEPH A. RINALDI, WAS CONVICTED OF A CRIMINAL OFFENSE
IN A TRIAL COURT OF ESSEX COUNTY, NEW JERSEY, AND SENTENCED TO PRISON
FOR A TERM OF FIVE TO 10 YEARS.  THE SUPERIOR COURT OF NEW JERSEY,
APPELLATE DIVISION, ALLOWED HIM LEAVE TO APPEAL IN FORMA PAUPERIS AND
GRANTED HIS PETITION FOR A TRANSCRIPT OF THE TRIAL COURT PROCEEDINGS,
FINDING THAT THE TRANSCRIPT WAS NEEDED FOR THE APPEAL AND THAT RINALDI
WAS UNABLE TO PAY FOR IT.  (FN1)  RINALDI'S APPEAL WAS UNSUCCESSFUL,
AND HE IS NOW AN INMATE IN THE NEW JERSEY STATE PRISON. 

AS COMPENSATION FOR HIS WORK IN PRISON, RINALDI EARNS 20 CENTS A DAY,
FIVE DAYS A WEEK.  SINCE LATE 1963, HOWEVER, EVERY DAY'S PAY HAS BEEN
WITHHELD FROM HIM BY PRISON OFFICIALS AND SENT TO THE TREASURER OF
ESSEX COUNTY, IN ORDER TO REIMBURSE THE COUNTY FOR THE $215 COST OF THE
TRANSCRIPT IT PROVIDED FOR HIS APPEAL.  THIS HAS BEEN DONE IN
ACCORDANCE WITH A STATUTE ENACTED BY NEW JERSEY IN 1956, SHORTLY AFTER
THIS COURT'S DECISION IN GRIFFIN V. ILLINOIS, 351 U.S. 12.  RINALDI
BROUGHT THIS SUIT TO ENJOIN ENFORCEMENT OF THE STATUTE ON THE GROUND
THAT IT IS UNCONSTITUTIONAL.  (FN2)  A THREE-JUDGE FEDERAL DISTRICT
COURT DENIED RELIEF, 238 F. SUPP. 960, AND WE NOTED PROBABLE
JURISDICTION.  382 U.S. 1007. 

THE STATUTE IN QUESTION IS N.J. STAT. ANN. SEC 2A:152-18 (1964 CUM.
SUPP.), AND IT PROVIDES AS FOLLOWS: 

"THE COUNTY TREASURER SHALL FILE A NOTICE OF THE PAYMENT BY THE
COUNTY AND THE AMOUNT THEREOF WITH THE INSTITUTION IN WHICH SAID
PERSON, UPON WHOSE APPLICATION THE TRANSCRIPT OF THE RECORD WAS
PREPARED, IS CONFINED, AND, TO THE EXTENT OF THE EXPENSE INCURRED, THE
COUNTY TREASURER SHALL BE REIMBURSED FROM ANY INSTITUTIONAL EARNINGS OF
SUCH PERSON, IN THE EVENT THAT THE APPLICATION FOR RELIEF IS DENIED BY
...  AN APPELLATE COURT." 

RINALDI ATTACKED THE CONSTITUTIONALITY OF THIS STATUTE ON THE BASIS
OF OUR DECISIONS DEFINING THE DUTY OF A STATE, UNDER THE EQUAL
PROTECTION CLAUSE AND THE DUE PROCESS CLAUSE, NOT TO LIMIT THE
OPPORTUNITY OF AN APPEAL IN A CRIMINAL CASE BECAUSE OF THE APPELLANT'S
POVERTY.  GRIFFIN V. ILLINOIS, SUPRA; BURNS V. OHIO, 360 U.S. 252;
DRAPER V. WASHINGTON, 372 U.S. 487; CF. SMITH V. BENNETT, 365 U.S. 708;
LANE V. BROWN, 372 U.S. 477.  A LOGICAL EXTENSION OF THESE DECISIONS,
THE APPELLANT CONTENDS, WOULD PROHIBIT A STATE FROM DISCOURAGING AN
INDIGENT'S FREEDOM TO APPEAL BY SADDLING HIM WITH THE OBLIGATION OF
PAYING FOR THE COST OF A TRANSCRIPT IN THE EVENT HIS APPEAL IS
UNSUCCESSFUL.  WE DO NOT REACH THIS CONTENTION, HOWEVER, BECAUSE WE
FIND THE STATUTE CONSTITUTIONALLY DEFICIENT UPON A DIFFERENT GROUND. 

THE NEW JERSEY LAW DOES NOT IMPOSE THIS FINANCIAL BURDEN UPON ALL WHO
HAVE BEEN CONVICTED IN ITS COURTS AND WHOSE APPEALS HAVE BEEN
UNSUCCESSFUL.  IT REQUIRES NO REPAYMENT AT ALL FROM A MAN WHO HAS
RECEIVED A SUSPENDED SENTENCE OR BEEN PLACED ON PROBATION, REGARDLESS
OF HOW HIGH HIS SUBSEQUENT EARNINGS MAY BE.  IT REQUIRES NO REPAYMENT
AT ALL FROM AN UNSUCCESSFUL APPELLANT WHO HAS BEEN SENTENCED ONLY TO
PAY A FINE.  (FN3)  INSTEAD, THE LAW FASTENS THE DUTY OF REPAYMENT ONLY
UPON A SINGLE CLASS OF UNSUCCESSFUL APPELLANTS - THOSE WHO ARE CONFINED
IN INSTITUTIONS.  (FN4)  WE FIND THAT THE DISCRIMINATORY CLASSIFICATION
IMPOSED BY THIS LAW VIOLATES THE REQUIREMENTS OF THE EQUAL PROTECTION
CLAUSE. 

THE EQUAL PROTECTION CLAUSE REQUIRES MORE OF A STATE LAW THAN
NONDISCRIMINATORY APPLICATION WITHIN THE CLASS IT ESTABLISHES. 
MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 189-190.  IT ALSO IMPOSES A
REQUIREMENT OF SOME RATIONALITY IN THE NATURE OF THE CLASS SINGLED
OUT.  TO BE SURE, THE CONSTITUTIONAL DEMAND IS NOT A DEMAND THAT A
STATUTE NECESSARILY APPLY EQUALLY TO ALL PERSONS.  "THE CONSTITUTION
DOES NOT REQUIRE THINGS WHICH ARE DIFFERENT IN FACT  ...  TO BE TREATED
IN LAW AS THOUGH THEY WERE THE SAME."  TIGNER V. TEXAS, 310 U.S. 141,
147.  HENCE, LEGISLATION MAY IMPOSE SPECIAL BURDENS UPON DEFINED
CLASSES IN ORDER TO ACHIEVE PERMISSIBLE ENDS.  BUT THE EQUAL PROTECTION
CLAUSE DOES REQUIRE THAT, IN DEFINING A CLASS SUBJECT TO LEGISLATION,
THE DISTINCTIONS THAT ARE DRAWN HAVE "SOME RELEVANCE TO THE PURPOSE FOR
WHICH THE CLASSIFICATION IS MADE."  BAXSTROM V. HEROLD, 383 U.S. 107,
111; CARRINGTON V. RASH, 380 U.S. 89, 93; LOUISVILLE GAS CO. V.
COLEMAN, 277 U.S. 32, 37; ROYSTER GUANO CO. V. VIRGINIA, 253 U.S. 412,
415. 

WE HAVE BEEN REFERRED TO NO RECORD OF LEGISLATIVE HISTORY THAT MIGHT
DISCLOSE WITH PRECISION WHAT THIS LAW WAS DESIGNED TO ACHIEVE, BUT THE
STATUTE ITSELF BEARS THE HEADING "REIMBURSEMENT."  WE MAY ASSUME THAT A
LEGISLATURE COULD VALIDLY PROVIDE FOR REPLENISHING A COUNTY TREASURY
FROM THE POCKETS OF THOSE WHO HAVE DIRECTLY BENEFITED FROM COUNTY
EXPENDITURES.  TO FASTEN A FINANCIAL BURDEN ONLY UPON THOSE
UNSUCCESSFUL APPELLANTS WHO ARE CONFINED IN STATE INSTITUTIONS,
HOWEVER, IS TO MAKE AN INVIDIOUS DISCRIMINATION.  THOSE APPELLANTS WHO
HAVE BEEN SENTENCED ONLY TO PAY FINES HAVE BEEN ACCORDED THE SAME
BENEFIT BY THE COUNTY - A TRANSCRIPT USED IN AN UNSUCCESSFUL APPEAL,
AND ALL THAT DISTINGUISHES THEM FROM THEIR INSTITUTIONALIZED
COUNTERPARTS IS THE NATURE OF THE PENALTY ATTACHED TO THE OFFENSE
COMMITTED.  THERE IS NO DEFENSIBLE INTEREST SERVED BY FOCUSING ON THAT
DISTINCTION AS CLASSIFYING FEATURE IN A REIMBURSEMENT STATUTE, SINCE IT
BEARS NO RELATIONSHIP WHATEVER TO THE PURPOSE OF THE REPAYMENT
PROVISION.  LIKEWISE, AN APPELLANT SUBJECT ONLY TO A SUSPENDED SENTENCE
OR TO PROBATION IS LIKELY TO DIFFER FROM AN INMATE ONLY IN THE EXTENT
OF HIS CRIMINAL RECORD.  THAT, TOO, IS A TRAIT UNRELATED TO THE FISCAL
OBJECTIVE OF THE STATUTE.  FINALLY, THE CLASSIFICATION ESTABLISHED BY
THE STATUTE CANNOT BE JUSTIFIED ON THE GROUND OF ADMINISTRATIVE
CONVENIENCE.  ANY SUPPOSED ADMINISTRATIVE INCONVENIENCE WOULD BE
MINIMAL, SINCE REPAYMENT COULD EASILY BE MADE A CONDITION OF PROBATION
OR PAROLE,  (FN5) AND THOSE PUNISHED ONLY BY FINES COULD BE REACHED
THROUGH THE ORGINARY PROCESSES OF GARNISHMENT IN THE EVENT OF DEFAULT. 
(FN6) 

APART FROM ITS FISCAL OBJECTIVE, THE ONLY OTHER PURPOSE OF THIS LAW
ADVANCED BY THE APPELLEES IS THE DETERRENCE OF FRIVOLOUS APPEALS. 
ASSUMING A LAW ENACTED TO PERFORM THAT FUNCTION TO BE OTHERWISE VALID,
THE PRESENT STATUTORY CLASSIFICATION IS NO LESS VULNERABLE UNDER THE
EQUAL PROTECTION CLAUSE WHEN VIEWED IN RELATION TO THAT FUNCTION.  BY
IMPOSING A FINANCIAL OBLIGATION ONLY UPON INMATES OF INSTITUTIONS, THE
STATUTE INEVITABLY BURDENS MANY WHOSE APPEALS, THOUGH UNSUCCESSFUL,
WERE NOT FRIVOLOUS, AND LEAVES UNTOUCHED MANY WHOSE APPEALS MAY HAVE
BEEN FRIVOLOUS INDEED. 

THIS COURT HAS NEVER HELD THAT THE STATES ARE REQUIRED TO ESTABLISH
AVENUES OF APPELLATE REVIEW, BUT IT IS NOW FUNDAMENTAL THAT, ONCE
ESTABLISHED, THESE AVENUES MUST BE KEPT FREE OF UNREASONED DISTINCTIONS
THAT CAN ONLY IMPEDE OPEN AND EQUAL ACCESS TO THE COURTS.  GRIFFIN V.
ILLINOIS, 351 U.S. 12; DOUGLAS V. CALIFORNIA, 372 U.S. 353; LANE V.
BROWN, 372 U.S. 477; DRAPER V. WASHINGTON, 372 U.S. 487.  WE MAY ASSUME
THAT A STATE CAN VALIDLY PROVIDE FOR RECOUPMENT OF THE COST OF APPEALS
FROM THOSE WHO LATER BECOME FINANCIALLY ABLE TO PAY.  BUT ANY SUCH
PROVISION MUST, UNDER THE EQUAL PROTECTION CLAUSE, BE APPLIED WITH AN
EVEN HAND. 

THE JUDGMENT IS REVERSED, AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE FOLLOWING NEW JERSEY STATUTE AUTHORIZES INITIAL IMPOSITION
OF THE EXPENSE OF THE TRANSCRIPT UPON THE COUNTY: 

"ANY PERSON CONVICTED OF ANY CRIME MAY MAKE APPLICATION UNDER OATH TO
ANY JUDGE OF THE COUNTY COURT OR LAW DIVISION OF THE SUPERIOR COURT OF
THE COUNTY WHERE THE VENUE WAS LAID SHOWING THAT A COPY OF THE
TRANSCRIPT OF THE RECORD, TESTIMONY AND PROCEEDINGS AT THE TRIAL IS
NECESSARY FOR THE FILING OF ANY APPLICATION WITH THE TRIAL COURT, AND
THAT HE IS UNABLE, BY REASON OF POVERTY, TO DEFRAY THE EXPENSE OF
PROCURING THE SAME, AND ANY SUCH JUDGE MAY, BEING SATISFIED OF THE
FACTS STATED AND OF THE SUFFICIENCY THEREOF, CERTIFY THE EXPENSE
THEREOF TO THE COUNTY TREASURER, WHO SHALL THEREUPON PAY SUCH EXPENSE,
THE AMOUNT THEREOF HAVING BEEN APPROVED BY THE JUDGE TO WHOM SUCH
APPLICATION WAS MADE.  WHERE SUCH PERSON APPEALS TO THE APPELLATE
DIVISION OF THE SUPERIOR COURT AND COPIES OF THE TRANSCRIPT OF THE
PROCEEDINGS IN THE TRIAL COURT ARE NEEDED THEREFOR HE MAY MAKE A
SIMILAR APPLICATION TO SUCH COURT WHICH, BEING SATISFIED OF THE FACTS
STATED AND THE SUFFICIENCY THEREOF, MAY CERTIFY THE EXPENSE AND AMOUNT
THEREOF TO THE COUNTY TREASURER WHO SHALL THEREUPON PAY SUCH EXPENSE." 
N.J. STAT. ANN. SEC 2A:152-17 (1964 CUM. SUPP.). 

FN2  THE SUIT WAS BROUGHT PURSUANT TO R.S. SEC 1979, 42 U.S.C. SEC
1983: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICTION THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS." 

FN3  IT IS TRUE THAT SOME INDIGENTS WHO ARE FINED MAY NOT BE ABLE TO
PAY THE FINE.  NEW JERSEY PROVIDES THAT THEY MAY BE PLACED AT LABOR IN
AN INSTITUTION UNTIL THE FINE IS PAID.  N.J.  STAT. ANN. SEC 2A:166-14;
N.J. STAT. ANN. SEC 2A:166-16.  THOSE WHO ARE CONVICTED OF
MISDEMEANORS, HOWEVER, MAY BE PERMITTED TO GO AT LARGE UNTIL THE FINE
IS PAID.  N.J. STAT.  ANN. SEC 2A;166-15.  MOREOVER, FELONY DEFENDANTS
INDIGENT FOR TRANSCRIPT PURPOSES MAY BE ABLE TO OBTAIN THE MONEY TO PAY
A FINE AND THUS AVOID CONFINEMENT IN AN INSTITUTION AND THE
REIMBURSEMENT OBLIGATION THAT SUCH CONFINEMENT ENTAILS. 

FN4  MOREOVER, IN VIEW OF ANOTHER NEW JERSEY STATUTE, IT APPEARS THAT
WAGES MAY NOT BE WITHHELD FROM EVERY INMATE WHO WOULD OTHERWISE BE
INDEBTED TO A COUNTY.  N.J. STAT. ANN.  SEC 30:4-92 PROVIDES IN
RELEVANT PART:  "COMPENSATION FOR INMATES OF CORRECTIONAL INSTITUTIONS
MAY BE IN THE FORM OF CASH OR REMISSION OF TIME FROM SENTENCE OR
BOTH."  HENCE, SOME INMATES MAY NOT RECEIVE CASH IN EXCHANGE FOR THEIR
LABOR.  OTHER INMATES, OF COURSE, MAY NOT BE ASSIGNED TO WORK.  THE
REIMBURSEMENT STATUTE APPEARS TO ALLOW FOR THESE VARIATIONS INSOFAR AS
IT PROVIDES THAT "  ...  THE COUNTY TREASURER SHALL BE REIMBURSED FROM
ANY INSTITUTIONAL EARNINGS OF SUCH PERSON." 

FN5  SEE N.J. STAT. ANN. SEC 2A:168-2; N.J. STAT. ANN. SEC 2A:167-8. 
SEE, KAMISAR & CHOPER, THE RIGHT TO COUNSEL IN MINNESOTA:  SOME FIELD
FINDINGS AND LEGAL-POLICY OBSERVATIONS, 48 MINN. L. REV. 1, 23-24: 

"THE PRACTICE OF CERTAIN JUDGES IN SOME OF THE COUNTIES STUDIED AND
OF ALL JUDGES IN OTHERS IS TO REQUIRE, AS A CONDITION OF PROBATION,
THAT THE CONVICTED INDIGENT REPAY THE COUNTY'S EXPENDITURE FOR HIS
LAWYER.  THE PROBATION OFFICER USUALLY INFORMS THE JUDGE OF THE AMOUNT
THE DEFENDANT SHOULD BE EXPECTED TO REPAY EACH WEEK.  THE SURVEY
INDICATES THAT THIS CONDITION OF PROBATION IS RARELY, IF EVER,
VIOLATED." 

FN6  SEE N.J. STAT. ANN. SEC 2A:17-50. 

MR. JUSTICE HARLAN, DISSENTING. 

NEW JERSEY RECOUPS THE COST OF TRIAL TRANSCRIPTS FURNISHED TO
INDIGENTS OUT OF PRISON ALLOWANCES MADE TO INCARCERATED PRISONERS, BUT
DOES NOT SEEK REIMBURSEMENT FROM PAROLEES OR CONVICTED DEFENDANTS NOT
IMPRISONED.  THE COURT HOLDS THIS DIFFERENTIATION TO VIOLATE THE EQUAL
PROTECTION CLAUSE.  I AM UNABLE TO AGREE.  UNDER CONVENTIONAL EQUAL
PROTECTION STANDARDS WHICH DISAPPROVE ONLY IRRATIONAL AND ARBITRARY
CLASSIFICATIONS, THE STATUTE IS PLAINLY VALID.  SEE MCLAUGHLIN V.
FLORIDA, 379 U.S. 184, 190-191; MCGOWAN V. MARYLAND, 366 U.S. 420, 426;
LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-79.  SURELY THE
STATE MIGHT REASONABLY CHOOSE TO REIMBURSE ITSELF FOR SUCH TRANSCRIPT
COSTS OUT OF PRISON ALLOWANCES, BUT DEEM IT NOT WORTH THE ADDED TIME
AND TROUBLE, OR EVEN ADVISABLE, TO ATTEMPT TO EXTRACT SUCH CHARGES FROM
A CONVICT NOT IN PRISON WHO MUST SUPPORT HIMSELF ON HIS OWN RESOURCES. 
ADHERING TO THE TRADITIONAL TEST OF RATIONALITY, I WOULD AFFIRM THE
DECISION OF THE DISTRICT COURT.* 

*I FIND NO SUBSTANCE TO APPELLANT'S MAIN ARGUMENT, WHICH THE COURT
LAYS ASIDE, THAT TO PERMIT ANY SUCH RECOUPMENT FROM AN INDIGENT IS AN
UNCONSTITUTIONAL DETERRENT TO APPEAL.  NOR DO I THINK THERE IS ANY
FORCE TO THE ARGUMENT IN N. 4 (ANTE, P. 308), NOT EVEN SUGGESTED BY
APPELLANT, WHICH AT BEST GOES TO THE VALIDITY OF THE STATUTES GOVERNING
COMPENSATION AND NOT TO THE REIMBURSEMENT STATUTE BEING REVIEWED. 
..END :






REES V. PEYTON 384 U.S. 312 


NO. 321, MISC.  DECIDED MAY 31, 1966. 


PETITIONER, UNDER FEDERAL LIFE SENTENCES FOR KIDNAPPING, FILED A
HABEAS CORPUS PETITION IN THE DISTRICT COURT ALLEGING THAT A SUBSEQUENT
RELATED STATE MURDER CONVICTION ON WHICH HE WAS SENTENCED TO DEATH
VIOLATED HIS CONSTITUTIONAL RIGHTS.  A MONTH AFTER PETITIONING THIS
COURT FOR CERTIORARI TO REVIEW THE COURT OF APPEALS' AFFIRMANCE OF THE
DISTRICT COURT'S REJECTION OF HIS CLAIMS, PETITIONER ORDERED COUNSEL TO
WITHDRAW THE PETITION AND FORGO FURTHER LEGAL PROCEEDINGS. 
PETITIONER'S COUNSEL ADVISED THE COURT THAT SINCE EVIDENCE CAST DOUBT
ON HIS CLIENT'S MENTAL COMPETENCY HE COULD NOT CONSCIENTIOUSLY DO SO
WITHOUT A PSYCHIATRIC EVALUATION OF PETITIONER.  A PSYCHIATRIST HE
RETAINED EXAMINED REES AND PRONOUNCED HIM INCOMPETENT.  STATE-SELECTED
PSYCHIATRISTS WERE UNABLE TO EXAMINE REES FOR LACK OF HIS COOPERATION
BUT DOUBTED HIM INSANE.  HELD:  IN AID OF THIS COURT'S CERTIORARI
JURISDICTION, THE DISTRICT COURT IS INSTRUCTED TO JUDICIALLY DETERMINE
REES' COMPETENCE AFTER NOTICE TO THE PARTIES, PSYCHIATRIC AND OTHER
MEDICAL EXAMINATIONS, AND SUCH HEARINGS AS IT DEEMS SUITABLE, AND
REPORT ITS FINDINGS TO THIS COURT. 

REES V. PEYTON, PENITENTIARY SUPERINTENDENT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

FOLLOWING A RELATED FEDERAL CONVICTION AND LIFE SENTENCES FOR
KIDNAPPING, UNITED STATES V. REES, 193 F. SUPP. 849, MELVIN DAVIS REES,
JR., WAS CONVICTED OF MURDER AND SENTENCED TO DEATH BY A STATE COURT IN
VIRGINIA, AND THE JUDGMENT WAS AFFIRMED ON APPEAL IN 1962.  REES V.
COMMONWEALTH, 203 VA. 850, 127 S.E.2D 406, CERT. DENIED, 372 U.S. 964. 
THEREAFTER, A HABEAS CORPUS PETITION WAS FILED IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, ALLEGING THAT THE
STATE COURT CONVICTION HAD VIOLATED FEDERAL CONSTITUTIONAL RIGHTS OF
REES.  THE DISTRICT COURT REJECTED THESE CLAIMS, 225 F. SUPP. 507, AND
THE COURT OF APPEALS FOR THE FOURTH CIRCUIT AFFIRMED, 341 F.2D 859. 
WITH REES' CONSENT, HIS COUNSEL THEN FILED IN THIS COURT ON JUNE 23,
1965, THE PRESENT PETITION FOR CERTIORARI TO REVIEW THE COURT OF
APPEALS' DECISION, AND THE PETITION IS THEREFORE PROPERLY BEFORE US FOR
DISPOSITION. 

NEARLY ONE MONTH AFTER THIS PETITION HAD BEEN FILED, REES DIRECTED
HIS COUNSEL TO WITHDRAW THE PETITION AND FORGO ANY FURTHER LEGAL
PROCEEDINGS.  COUNSEL ADVISED THIS COURT THAT HE COULD NOT
CONSCIENTIOUSLY ACCEDE TO THESE INSTRUCTIONS WITHOUT A PSYCHIATRIC
EVALUATION OF REES BECAUSE EVIDENCE CAST DOUBT ON REES' MENTAL
COMPETENCY.  AFTER FURTHER LETTERS FROM REES TO HIS COUNSEL AND TO THIS
COURT MAINTAINING HIS POSITION, COUNSEL HAD REES EXAMINED BY A
PSYCHIATRIST WHO FILED A DETAILED REPORT CONCLUDING THAT REES WAS
MENTALLY INCOMPETENT.  PSYCHIATRISTS SELECTED BY THE STATE WHO SOUGHT
TO EXAMINE REES AT THE STATE PRISON FOUND THEMSELVES THWARTED BY HIS
LACK OF COOPERATION, BUT EXPRESSED DOUBTS THAT HE WAS INSANE. 

WHETHER OR NOT REES SHALL BE ALLOWED IN THESE CIRCUMSTANCES TO
WITHDRAW HIS CERTIORARI PETITION IS A QUESTION WHICH IT IS ULTIMATELY
THE RESPONSIBILITY OF THIS COURT TO DETERMINE, IN THE RESOLUTION OF
WHICH REES' MENTAL COMPETENCE IS OF PRIME IMPORTANCE.  WE HAVE
THEREFORE DETERMINED THAT, IN AID OF THE PROPER EXERCISE OF THIS
COURT'S CERTIORARI JURISDICTION, THE FEDERAL DISTRICT COURT IN WHICH
THIS PROCEEDING COMMENCED SHOULD UPON DUE NOTICE TO THE STATE AND ALL
OTHER INTERESTED PARTIES MAKE A JUDICIAL DETERMINATION AS TO REES'
MENTAL COMPETENCE AND RENDER A REPORT ON THE MATTER TO US. WHILE OTHER
COURSES HAVE BEEN SUGGESTED, CF. ANDERSON V. KENTUCKY, 376 U.S. 940, WE
THINK THAT ALL THINGS CONSIDERED THE INITIAL STEP SHOULD BE THE ONE
JUST INDICATED.  UNTIL THAT STEP HAS BEEN TAKEN, WE DO NOT CONSIDER
OUTSELVES IN A POSITION TO DETERMINE WHAT DISPOSITION SHOULD BE MADE OF
REES' PETITION FOR CERTIORARI. 

ACCORDINGLY, WE SHALL RETAIN JURISDICTION OVER THE CAUSE IN THIS
COURT AND DIRECT THE DISTRICT COURT TO DETERMINE REES' MENTAL
COMPETENCE IN THE PRESENT POSTURE OF THINGS, THAT IS, WHETHER HE HAS
CAPACITY TO APPRECIATE HIS POSITION AND MAKE A RATIONAL CHOICE WITH
RESPECT TO CONTINUING OR ABANDONING FURTHER LITIGATION OR ON THE OTHER
HAND WHETHER HE IS SUFFERING FROM A MENTAL DISEASE, DISORDER, OR DEFECT
WHICH MAY SUBSTANTIALLY AFFECT HIS CAPACITY IN THE PREMISES.  TO THAT
END, IT WILL BE APPROPRIATE FOR THE DISTRICT COURT TO SUBJECT REES TO
PSYCHIATRIC AND OTHER APPROPRIATE MEDICAL EXAMINATIONS AND, SO FAR AS
NECESSARY, TO TEMPORARY FEDERAL HOSPITALIZATION FOR THIS PURPOSE.  CF.
18 U.S.C. SECS 4244-4245 (1964 ED.).  IF THE STATE WISHES TO OBTAIN
ADDITIONAL EVIDENCE FOR THE FEDERAL INQUIRY BY EXAMINING REES IN ITS
OWN FACILITIES, WE DO NOT FORECLOSE SUCH A SUPPLEMENTAL COURSE OF
ACTION.  THE DISTRICT COURT WILL HOLD SUCH HEARINGS AS IT DEEMS
SUITABLE, ALLOWING THE STATE AND ALL OTHER INTERESTED PARTIES TO
PARTICIPATE SHOULD THEY SO DESIRE, AND WILL REPORT ITS FINDINGS AND
CONCLUSIONS TO THIS COURT WITH ALL CONVENIENT SPEED.  IT IS SO
ORDERED. 
..END :






ALTON V. TAWES 384 U.S. 315 


NO. 1344.  DECIDED MAY 31, 1966.  - 253 F. SUPP. 731, AFFIRMED. 


ALTON V. TAWES, GOVERNOR OF MARYLAND, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

PER CURIAM. 

THE MOTION TO ADVANCE IS GRANTED.  THE JUDGMENT IS AFFIRMED. 
..END :


















TILLMAN V. CITY OF PORT ARTHUR 384 U.S. 315 


NO. 1214.  DECIDED MAY 31, 1966.  - 398 S.W.2D 750, APPEAL DISMISSED. 


TILLMAN ET AL. V. CITY OF PORT ARTHUR. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :



















MILLS V. ALABAMA 384 U.S. 214 


NO. 597.  ARGUED APRIL 19, 1966.  - DECIDED MAY 23, 1966.  - 278 ALA.
188, 176 SO. 2D 884, REVERSED AND REMANDED. 


APPELLANT, A BIRMINGHAM, ALABAMA, NEWSPAPER EDITOR, WAS ARRESTED ON A
COMPLAINT OF VIOLATING SEC 285 OF THE ALABAMA CORRUPT PRACTICES ACT BY
WRITING AND PUBLISHING ON ELECTION DAY AN EDITORIAL URGING ADOPTION IN
THAT ELECTION OF THE MAYOR-COUNCIL FORM OF GOVERNMENT.  SECTION 285
PROSCRIBES ELECTIONEERING OR SOLICITING VOTES ON ELECTION DAY FOR OR
AGAINST ANY PROPOSITION OR CANDIDATE INVOLVED IN THE ELECTION.  THE
TRIAL COURT SUSTAINED DEMURRERS ON THE GROUNDS THAT THE STATUTE
VIOLATED STATE AND FEDERAL FREE SPEECH GUARANTEES.  THE ALABAMA SUPREME
COURT, HOLDING THE STATUTORY ELECTION-DAY RESTRICTION REASONABLE OR
"WITHIN THE FIELD OF REASONABLENESS," REVERSED AND REMANDED THE CASE
FOR TRIAL.  HELD: 

1.  THIS COURT HAS JURISDICTION OVER THE APPEAL.  NOTWITHSTANDING THE
REMAND OF THE CASE, THE ALABAMA SUPREME COURT'S JUDGMENT WAS "FINAL"
WITHIN THE MEANING OF 28 U.S.C.  SEC 1257, BECAUSE APPELLANT'S
CONVICTION IN ANY SUBSEQUENT TRIAL IS INEVITABLE IN VIEW OF THAT
COURT'S RULING THAT THE ALABAMA STATUTE IS CONSTITUTIONAL AND
APPELLANT'S CONCESSION THAT HE WROTE AND PUBLISHED THE EDITORIAL.  PP.
217-218. 

2.  A STATE STATUTE MAKING IT A CRIME FOR A NEWSPAPER EDITOR TO
PUBLISH AN EDITORIAL ON ELECTION DAY URGING PEOPLE TO VOTE IN A
PARTICULAR WAY FLAGRANTLY VIOLATES THE FIRST AMENDMENT, APPLIED TO THE
STATES BY THE FOURTEENTH, A MAJOR PURPOSE OF WHICH WAS TO PROTECT FREE
DISCUSSION OF GOVERNMENTAL AFFAIRS.  PP. 218-220. 

MILLS V. ALABAMA. 

APPEAL FROM THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION SQUARELY PRESENTED HERE IS WHETHER A STATE, CONSISTENTLY
WITH THE UNITED STATES CONSTITUTION, CAN MAKE IT A CRIME FOR THE EDITOR
OF A DAILY NEWSPAPER TO WRITE AND PUBLISH AN EDITORIAL ON ELECTION DAY
URGING PEOPLE TO VOTE A CERTAIN WAY ON ISSUES SUBMITTED TO THEM. 

ON NOVEMBER 6, 1962, BIRMINGHAM, ALABAMA, HELD AN ELECTION FOR THE
PEOPLE TO DECIDE WHETHER THEY PREFERRED TO KEEP THEIR EXISTING CITY
COMMISSION FORM OF GOVERNMENT OR REPLACE IT WITH A MAJOR-COUNCIL
GOVERNMENT.  ON ELECTION DAY THE BIRMINGHAM POST-HERALD, A DAILY
NEWSPAPER, CARRIED AN EDITORIAL WRITTEN BY ITS EDITOR, APPELLANT, JAMES
E. MILLS, WHICH STRONGLY URGED THE PEOPLE TO ADOPT THE MAYOR-COUNCIL
FORM OF GOVERNMENT.  (FN1)  MILLS WAS LATER ARRESTED ON A COMPLAINT
CHARGING THAT BY PUBLISHING THE EDITORIAL ON ELECTION DAY HE HAD
VIOLATED SEC 285 OF THE ALABAMA CORRUPT PRACTICES ACT, ALA. CODE, 1940,
TIT. 17, SECS 268-286, WHICH MAKES IT A CRIME "TO DO ANY ELECTIONEERING
OR TO SOLICIT ANY VOTES  ...  IN SUPPORT OF OR IN OPPOSITION TO ANY
PROPOSITION THAT IS BEING VOTED ON ON THE DAY ON WHICH THE ELECTION
AFFECTING SUCH CANDIDATES OR PROPOSITIONS IS BEING HELD."  (FN2)  THE
TRIAL COURT SUSTAINED DEMURRERS TO THE COMPLAINT ON THE GROUNDS THAT
THE STATE STATUTE ABRIDGED FREEDOM OF SPEECH AND PRESS IN VIOLATION OF
THE ALABAMA CONSTITUTION AND THE FIRST AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.  ON APPEAL BY THE STATE, THE ALABAMA
SUPREME COURT HELD THAT PUBLICATION OF THE EDITORIAL ON ELECTION DAY
UNDOUBTEDLY VIOLATED THE STATE LAW AND THEN WENT ON TO REVERSE THE
TRIAL COURT BY HOLDING THAT THE STATE STATUTE AS APPLIED DID NOT
UNCONSTITUTIONALLY ABRIDGE FREEDOM OF SPEECH OR PRESS.  RECOGNIZING
THAT THE STATE LAW DID LIMIT AND RESTRICT BOTH SPEECH AND PRESS, THE
STATE SUPREME COURT NEVERTHELESS SUSTAINED IT AS A VALID EXERCISE OF
THE STATE'S POLICE POWER CHIEFLY BECAUSE, AS THAT COURT SAID, THE PRESS
"RESTRICTION, EVERYTHING CONSIDERED, IS WITHIN THE FIELD OF
REASONABLENESS" AND "NOT AN UNREASONABLE LIMITATION UPON FREE SPEECH,
WHICH INCLUDES FREE PRESS."  278 ALA. 188, 195, 196, 176 SO. 2D 884,
890.  THE CASE IS HERE ON APPEAL UNDER 28 U.S.C. SEC 1257 (1964 ED.). 

                                  I. 

THE STATE HAS MOVED TO DISMISS THIS APPEAL ON THE GROUND THAT THE
ALABAMA SUPREME COURT'S JUDGMENT IS NOT A "FINAL JUDGMENT" AND
THEREFORE NOT APPEALABLE UNDER SEC 1257.  (FN3)  THE STATE ARGUES THAT
SINCE THE ALABAMA SUPREME COURT REMANDED THE CASE TO THE TRIAL COURT
FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH ITS OPINION (WHICH WOULD
INCLUDE A TRIAL), THE SUPREME COURT'S JUDGMENT CANNOT BE CONSIDERED
"FINAL."  THIS ARGUMENT HAS A SURFACE PLAUSIBILITY, SINCE IT IS TRUE
THE JUDGMENT OF THE STATE SUPREME COURT DID NOT LITERALLY END THE
CASE.  IT DID, HOWEVER, RENDER A JUDGMENT BINDING UPON THE TRIAL COURT
THAT IT MUST CONVICT MILLS UNDER THIS STATE STATUTE IF HE WROTE AND
PUBLISHED THE EDITORIAL.  MILLS CONCEDES THAT HE DID, AND HE THEREFORE
HAS NO DEFENSE IN THE ALABAMA TRIAL COURT.  THUS IF THE CASE GOES BACK
TO THE TRIAL COURT, THE TRIAL, SO FAR AS THIS RECORD SHOWS, WOULD BE NO
MORE THAN A FEW FORMAL GESTURES LEADING INEXORABLY TOWARDS A
CONVICTION, AND THEN ANOTHER APPEAL TO THE ALABAMA SUPREME COURT FOR IT
FORMALLY TO REPEAT ITS REJECTION OF MILLS' CONSTITUTIONAL CONTENTIONS
WHEREUPON THE CASE COULD THEN ONCE MORE WIND ITS WEARY WAY BACK TO US
AS A JUDGMENT UNQUESTIONABLY FINAL AND APPEALABLE.  SUCH A ROUNDABOUT
PROCESS WOULD NOT ONLY BE AN INEXCUSABLE DELAY OF THE BENEFITS CONGRESS
INTENDED TO GRANT BY PROVIDING FOR APPEAL TO THIS COURT, BUT IT WOULD
ALSO RESULT IN A COMPLETELY UNNECESSARY WASTE OF TIME AND ENERGY IN
JUDICIAL SYSTEMS ALREADY TROUBLED BY DELAYS DUE TO CONGESTED DOCKETS. 
(FN4)  THE LANGUAGE OF SEC 1257 AS WE CONSTRUED IT IN POPE V. ATLANTIC
COAST LINE R. CO., 345 U.S. 379, 381-383, DOES NOT REQUIRE A RESULT
LEADING TO SUCH CONSEQUENCES.  SEE ALSO CONSTRUCTION LABORERS V. CURRY,
371 U.S. 542, 548-551; RICHFIELD OIL CORP. V.  STATE BOARD, 329 U.S.
69, 72-74.  FOLLOWING THOSE CASES WE HOLD THAT WE HAVE JURISDICTION. 

  II. 

WE COME NOW TO THE MERITS.  THE FIRST AMENDMENT, WHICH APPLIES TO THE
STATES THROUGH THE FOURTEENTH, PROHIBITS LAWS "ABRIDGING THE FREEDOM OF
SPEECH, OR OF THE PRESS."  THE QUESTION HERE IS WHETHER IT ABRIDGES
FREEDOM OF THE PRESS FOR A STATE TO PUNISH A NEWSPAPER EDITOR FOR DOING
NO MORE THAN PUBLISHING AN EDITORIAL ON ELECTION DAY URGING PEOPLE TO
VOTE A PARTICULAR WAY IN THE ELECTION.   WE SHOULD POINT OUT AT ONCE
THAT THIS QUESTION IN NO WAY INVOLVES THE EXTENT OF A STATE'S POWER TO
REGULATE CONDUCT IN AND AROUND THE POLLS IN ORDER TO MAINTAIN PEACE,
ORDER AND DECORUM THERE.  THE SOLE REASON FOR THE CHARGE THAT MILLS
VIOLATED THE LAW IS THAT HE WROTE AND PUBLISHED AN EDITORIAL ON
ELECTION DAY URGING BIRMINGHAM VOTERS TO CAST THEIR VOTES IN FAVOR OF
CHANGING THEIR FORM OF GOVERNMENT. 

WHATEVER DIFFERENCES MAY EXIST ABOUT INTERPRETATIONS OF THE FIRST
AMENDMENT, THERE IS PRACTICALLY UNIVERSAL AGREEMENT THAT A MAJOR
PURPOSE OF THAT AMENDMENT WAS TO PROTECT THE FREE DISCUSSION OF
GOVERNMENTAL AFFAIRS.  THIS OF COURSE INCLUDES DISCUSSIONS OF
CANDIDATES, STRUCTURES AND FORMS OF GOVERNMENT, THE MANNER IN WHICH
GOVERNMENT IS OPERATED OR SHOULD BE OPERATED, AND ALL SUCH MATTERS
RELATING TO POLITICAL PROCESSES.  THE CONSTITUTION SPECIFICALLY
SELECTED THE PRESS, WHICH INCLUDES NOT ONLY NEWSPAPERS, BOOKS, AND
MAGAZINES, BUT ALSO HUMBLE LEAFLETS AND CIRCULARS, SEE LOVELL V.
GRIFFIN, 303 U.S. 444, TO PLAY AN IMPORTANT ROLE IN THE DISCUSSION OF
PUBLIC AFFAIRS.  THUS THE PRESS SERVES AND WAS DESIGNED TO SERVE AS A
POWERFUL ANTIDOTE TO ANY ABUSES OF POWER BY GOVERNMENTAL OFFICIALS AND
AS A CONSTITUTIONALLY CHOSEN MEANS FOR KEEPING OFFICIALS ELECTED BY THE
PEOPLE RESPONSIBLE TO ALL THE PEOPLE WHOM THEY WERE SELECTED TO SERVE. 
SUPPRESSION OF THE RIGHT OF THE PRESS TO PRAISE OR CRITICIZE
GOVERNMENTAL AGENTS AND TO CLAMOR AND CONTEND FOR OR AGAINST CHANGE,
WHICH IS ALL THAT THIS EDITORIAL DID, MUZZLES ONE OF THE VERY AGENCIES
THE FRAMERS OF OUR CONSTITUTION THOUGHTFULLY AND DELIBERATELY SELECTED
TO IMPROVE OUR SOCIETY AND KEEP IT FREE.  THE ALABAMA CORRUPT PRACTICES
ACT BY PROVIDING CRIMINAL PENALTIES FOR PUBLISHING EDITORIALS SUCH AS
THE ONE HERE SILENCES THE PRESS AT A TIME WHEN IT CAN BE MOST
EFFECTIVE.  IT IS DIFFICULT TO CONCEIVE OF A MORE OBVIOUS AND FLAGRANT
ABRIDGMENT OF THE CONSTITUTIONALLY GUARANTEED FREEDOM OF THE PRESS. 

ADMITTING THAT THE STATE LAW RESTRICTED A NEWSPAPER EDITOR'S FREEDOM
TO PUBLISH EDITORIALS ON ELECTION DAY, THE ALABAMA SUPREME COURT
NEVERTHELESS SUSTAINED THE CONSTITUTIONALITY OF THE LAW ON THE GROUND
THAT THE RESTRICTIONS ON THE PRESS WERE ONLY "REASONABLE RESTRICTIONS"
OR AT LEAST "WITHIN THE FIELD OF REASONABLENESS."  THE COURT REACHED
THIS CONCLUSION BECAUSE IT THOUGHT THE LAW IMPOSED ONLY A MINOR
LIMITATION ON THE PRESS - RESTRICTING IT ONLY ON ELECTION DAYS - AND
BECAUSE THE COURT THOUGHT THE LAW SERVED A GOOD PURPOSE.  IT SAID: 

"IT IS A SALUTARY LEGISLATIVE ENACTMENT THAT PROTECTS THE PUBLIC FROM
CONFUSIVE LAST-MINUTE CHARGES AND COUNTERCHARGES AND THE DISTRUBUTION
OF PROPAGANDA IN AN EFFORT TO INFLUENCE VOTERS ON AN ELECTION DAY; WHEN
AS A PRACTICAL MATTER, BECAUSE OF LACK OF TIME, SUCH MATTERS CANNOT BE
ANSWERED OR THEIR TRUTH DETERMINED UNTIL AFTER THE ELECTION IS OVER." 
278 ALA.  188, 195-196, 176 SO. 2D 884, 890. 

THIS ARGUMENT, EVEN IF IT WERE RELEVANT TO THE CONSTITUTIONALITY OF
THE LAW, HAS A FATAL FLAW.  THE STATE STATUTE LEAVES PEOPLE FREE TO
HURL THEIR CAMPAIGN CHARGES UP TO THE LAST MINUTE OF THE DAY BEFORE
ELECTION.  THE LAW HELD VALID BY THE ALABAMA SUPREME COURT THEN GOES ON
TO MAKE IT A CRIME TO ANSWER THOSE "LAST-MINUTE" CHARGES ON ELECTION
DAY, THE ONLY TIME THEY CAN BE EFFECTIVELY ANSWERED.  BECAUSE THE LAW
PREVENTS ANY ADEQUATE REPLY TO THESE CHARGES, IT IS WHOLLY INEFFECTIVE
IN PROTECTING THE ELECTORATE "FROM CONFUSIVE LAST-MINUTE CHARGES AND
COUNTERCHARGES."  WE HOLD THAT NO TEST OF REASONABLENESS CAN SAVE A
STATE LAW FROM INVALIDATION AS A VIOLATION OF THE FIRST AMENDMENT WHEN
THAT LAW MAKES IT A CRIME FOR A NEWSPAPER EDITOR TO DO NO MORE THAN
URGE PEOPLE TO VOTE ONE WAY OR ANOTHER IN A PUBLICLY HELD ELECTION. 

THE JUDGMENT OF THE SUPREME COURT OF ALABAMA IS REVERSED AND THE CASE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THE EDITORIAL SAID IN PART: "MAYOR HANES' PROPOSAL TO BUY THE
VOTES OF CITY EMPLOYEES WITH A PROMISE OF PAY RAISES WHICH WOULD COST
THE TAXPAYERS NEARLY A MILLION DOLLARS A YEAR WAS CAUSE ENOUGH TO
DESTROY ANY CONFIDENCE THE PUBLIC MIGHT HAVE HAD LEFT IN HIM. 

"IT WAS ANOTHER GOOD REASON WHY THE VOTERS SHOULD VOTE OVERWHELMINGLY
TODAY IN FAVOR OF MAYOR-COUNCIL GOVERNMENT. 

"NOW MR. HANES, IN HIS ARROGANCE, PROPOSES TO SET HIMSELF UP AS NEWS
CENSOR AT CITY HALL AND 'WIN OR LOSE' TODAY HE SAYS HE WILL INSTRUCT
ALL CITY EMPLOYEES UNDER HIM TO NEITHER GIVE OUT NEWS REGARDING THE
PUBLIC BUSINESS WITH WHICH THEY ARE ENTRUSTED NOR TO DISCUSS IT WITH
REPORTERS EITHER FROM THE POST-HERALD OR THE NEWS. 

     *         *         *         *         * 

"IF MAYOR HANES DISPLAYS SUCH ARROGANT DISREGARD OF THE PUBLIC'S
RIGHT TO KNOW ON THE EVE OF THE ELECTION WHAT CAN WE EXPECT IN THE
FUTURE IF THE CITY COMMISSION SHOULD BE RETAINED? 

"LET'S TAKE NO CHANCES. 

"BIRMINGHAM AND THE PEOPLE OF BIRMINGHAM DESERVE A BETTER BREAK.  A
VOTE FOR MAYOR-COUNCIL GOVERNMENT WILL GIVE IT TO THEM." 

FN2  "SEC 285(599) CORRUPT PRACTICES AT ELECTIONS ENUMERATED AND
DEFINED.  - IT IS A CORRUPT PRACTICE FOR ANY PERSON ON ANY ELECTION DAY
TO INTIMIDATE OR ATTEMPT TO INTIMIDATE AN ELECTOR OR ANY OF THE
ELECTION OFFICERS; OR, OBSTRUCT OR HINDER OR ATTEMPT TO OBSTRUCT OR
HINDER, OR PREVENT OR ATTEMPT TO PREVENT THE FORMING OF THE LINES OF
THE VOTERS AWAITING THEIR OPPORTUNITY OR TIME TO ENTER THE ELECTION
BOOTHS; OR TO HIRE OR TO LET FOR HIRE ANY AUTOMOBILE OR OTHER
CONVEYANCE FOR THE PURPOSE OF CONVEYING ELECTORS TO AND FROM THE POLLS;
OR, TO DO ANY ELECTIONEERING OR TO SOLICIT ANY VOTES OR TO PROMISE TO
CAST ANY VOTES FOR OR AGAINST THE ELECTION OR NOMINATION OF ANY
CANDIDATE, OR IN SUPPORT OF OR IN OPPOSITION TO ANY PROPOSITION THAT IS
BEING VOTED ON ON THE DAY ON WHICH THE ELECTION AFFECTING SUCH
CANDIDATES OR PROPOSITIONS IS BEING HELD."  ALA. CODE, 1940, TIT. 17. 

FN3  SECTION 1257 PROVIDES IN PART: "FINAL JUDGMENTS OR DECREES
RENDERED BY THE HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE
HAD, MAY BE REVIEWED BY THE SUPREME COURT  ...  ." 

FN4  THIS CASE WAS INSTITUTED MORE THAN THREE AND ONE-HALF YEARS
AGO.  IF JURISDICTION IS REFUSED, WE CANNOT KNOW THAT IT WILL NOT TAKE
ANOTHER THREE AND ONE-HALF YEARS TO GET THIS CONSTITUTIONAL QUESTION
FINALLY DETERMINED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BRENNAN JOINS, CONCURRING. 

ALTHOUGH I JOIN THE OPINION OF THE COURT, I THINK IT APPROPRIATE TO
ADD A FEW WORDS ABOUT THE FINALITY OF THE JUDGMENT WE REVERSE TODAY,
PARTICULARLY IN VIEW OF THE OBSERVATION IN THE SEPARATE OPINION OF MR.
JUSTICE HARLAN THAT "LIMITATIONS ON THE JURISDICTION OF THIS COURT  ...
SHOULD BE RESPECTED AND NOT TURNED ON AND OFF AT THE PLEASURE OF ITS
MEMBERS OR TO SUIT THE CONVENIENCE OF LITIGANTS." 

THE DECISION OF THE ALABAMA SUPREME COURT APPROVED A LAW WHICH, IN MY
VIEW, IS A BLATANT VIOLATION OF FREEDOM OF THE PRESS.  THE THREAT OF
PENAL SANCTIONS HAS, WE ARE TOLD, ALREADY TAKEN ITS TOLL IN ALABAMA:
THE ALABAMA PRESS ASSOCIATION AND THE SOUTHERN NEWSPAPER PUBLISHERS
ASSOCIATION, AS AMICI CURIAE, TELL US THAT SINCE NOVEMBER 1962
EDITORIAL COMMENT ON ELECTION DAY HAS BEEN NONEXISTENT IN ALABAMA.  THE
CHILLING EFFECT OF THIS PROSECUTION IS THUS ANYTHING BUT HYPOTHETICAL;
IT IS CURRENTLY BEING EXPERIENCED BY THE NEWSPAPERS AND THE PEOPLE OF
ALABAMA. 

WE DEAL HERE WITH THE RIGHTS OF FREE SPEECH AND PRESS IN A BASIC
FORM: THE RIGHT TO EXPRESS VIEWS ON MATTERS BEFORE THE ELECTORATE.  IN
LIGHT OF APPELLANT'S CONCESSION THAT HE HAS NO OTHER DEFENSE TO OFFER
SHOULD THE CASE GO TO TRIAL, COMPARE POPE V. ATLANTIC COAST LINE R.
CO., 345 U.S. 379; RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69, AND
CONSIDERING THE IMPORTANCE OF THE FIRST AMENDMENT RIGHTS AT STAKE IN
THIS LITIGATION, IT WOULD REQUIRE REGARD FOR SOME REMOTE, THEORETICAL
INTERESTS OF FEDERALISM TO CONCLUDE THAT THIS COURT LACKS JURISDICTION
BECAUSE OF THE UNLIKELY POSSIBILITY THAT A JURY MIGHT DISREGARD A TRIAL
JUDGE'S INSTRUCTIONS AND ACQUIT. 

INDEED, EVEN HAD APPELLANT BEEN UNWILLING TO CONCEDE THAT HE HAS NO
DEFENSE - APART FROM THE CONSTITUTIONAL QUESTION - TO THE CHARGES
AGAINST HIM, WE WOULD BE WARRANTED IN REVIEWING THIS CASE.  THAT RESULT
FOLLOWS A FORTIORI FROM OUR HOLDINGS THAT WHERE FIRST AMENDMENT RIGHTS
ARE JEOPARDIZED BY A STATE PROSECUTION WHICH, BY ITS VERY NATURE,
THREATENS TO DETER OTHERS FROM EXERCISING THEIR FIRST AMENDMENT RIGHTS,
A FEDERAL COURT WILL TAKE THE EXTRAORDINARY STEP OF ENJOINING THE STATE
PROSECUTION.  DOMBROWSKI V. PFISTER, 380 U.S. 479; CAMERON V. JOHNSON,
381 U.S. 741.  AS ALREADY NOTED, THIS CASE HAS BROUGHT EDITORIAL
COMMENT ON ELECTION DAY TO A HALT THROUGHOUT THE STATE OF ALABAMA.  OUR
OBSERVATION IN NAACP V. BUTTON, 371 U.S. 415, 433, HAS GRIM RELEVANCE
HERE: "THE THREAT OF SANCTIONS MAY DETER  ...  EXERCISE OF FIRST
AMENDMENT RIGHTS ALMOST AS POTENTLY AS THE ACTUAL APPLICATION OF
SANCTIONS."*    *IN CALIFORNIA V. STEWART, 383 U.S. 903, WHERE A STATE
COURT REVERSED A CRIMINAL CONVICTION ON FEDERAL GROUNDS, WE RULED ON A
MOTION TO DISMISS THAT THE STATE MAY OBTAIN REVIEW IN THIS COURT EVEN
THOUGH A NEW TRIAL REMAINED TO BE HELD.  WE REACHED THAT CONCLUSION
BECAUSE OTHERWISE THE STATE WOULD BE PERMANENTLY PRECLUDED FROM RAISING
THE FEDERAL QUESTION, STATE LAW NOT PERMITTING THE PROSECUTION TO
APPEAL FROM AN ACQUITTAL.  AND SEE CONSTRUCTION LABORERS V. CURRY, 371
U.S. 542; MERCANTILE NATIONAL BANK V. LANGDEAU, 371 U.S. 555. 

FOR THESE REASONS, AND FOR THE REASONS STATED IN THE OPINION OF THE
COURT, I CONCLUDE THAT THE JUDGMENT IS FINAL. 

SEPARATE OPINION OF MR. JUSTICE HARLAN. 

IN MY OPINION THE APPELLANT IS NOT HERE ON A "FINAL" STATE JUDGMENT
AND THEREFORE UNDER 28 U.S.C. SEC 1257 (1964 ED.)  THE COURT HAS NO
JURISDICTION TO ENTERTAIN THIS APPEAL.  REPUBLIC NATURAL GAS CO. V.
OKLAHOMA, 334 U.S. 62; CF. PARR V. UNITED STATES, 351 U.S. 513. 

ALTHOUGH HIS DEMURRER TO THE CRIMINAL COMPLAINT HAS BEEN OVERRULED BY
THE HIGHEST COURT OF THE STATE, THE APPELLANT STILL FACES A TRIAL ON
THE CHARGES AGAINST HIM.  IF THE JURY  (FN1)  FAILS TO CONVICT - A
POSSIBILITY WHICH, UNLESS THE COURTROOM ANTENNAE OF A FORMER TRIAL
LAWYER HAVE BECOME DULLED BY HIS YEARS ON THE BENCH, IS BY NO MEANS
REMOTE IN A CASE SO UNUSUAL AS THIS ONE IS - THE CONSTITUTIONAL ISSUE
NOW DECIDED WILL HAVE BEEN PREMATURELY ADJUDICATED.  BUT EVEN WERE ONE
MISTAKEN IN THINKING THAT A JURY MIGHT WELL TAKE THE BIT IN ITS TEETH
AND ACQUIT, DESPITE THE ALABAMA SUPREME COURT'S RULING ON THE DEMURRER
AND THE APPELLANT'S ADMITTED AUTHORSHIP  OF THE EDITORIAL IN QUESTION,
THE FEDERAL STATUTE NONETHELESS COMMANDS US NOT TO ADJUDICATE THE ISSUE
DECIDED UNTIL THE PROSECUTION HAS RUN ITS FINAL COURSE IN THE STATE
COURTS, ADVERSELY TO THE APPELLANT. 

ALTHOUGH OF COURSE MUCH CAN BE SAID IN FAVOR OF DECIDING THE
CONSTITUTIONAL ISSUE NOW, AND BOTH SIDES HAVE INDICATED THEIR DESIRE
THAT WE DO SO, I CONTINUE TO BELIEVE THAT CONSTITUTIONALLY PERMISSIBLE
LIMITATIONS ON THE JURISDICTION OF THIS COURT, SUCH AS THOSE CONTAINED
IN SEC 1257 UNDOUBTEDLY ARE, SHOULD BE RESPECTED AND NOT TURNED ON AND
OFF AT THE PLEASURE OF ITS MEMBERS OR TO SUIT THE CONVENIENCE OF
LITIGANTS.  (FN2)  IF THE TRADITIONAL FEDERAL POLICY OF "FINALITY" IS
TO BE CHANGED, CONGRESS IS THE BODY TO DO IT.  I WOULD DISMISS THIS
APPEAL FOR WANT OF JURISDICTION. 

SINCE THE COURT HAS DECIDED OTHERWISE, HOWEVER, I FEEL WARRANTED IN
MAKING A SUMMARY STATEMENT OF MY VIEWS ON THE MERITS OF THE CASE.  I
AGREE WITH THE COURT THAT THE DECISION BELOW CANNOT STAND.  BUT I WOULD
REST REVERSAL ON THE GROUND THAT THE RELEVANT PROVISION OF THE ALABAMA
STATUTE - "TO DO ANY ELECTIONEERING OR TO SOLICIT ANY VOTES ON ELECTION
DAY  ...  IN SUPPORT OF OR IN OPPOSITION TO ANY PROPOSITION THAT IS
BEING VOTED ON ON THE DAY ON WHICH THE ELECTION AFFECTING SUCH
CANDIDATES OR PROPOSITIONS IS BEING HELD" - DID NOT GIVE THE APPELLANT,
PARTICULARLY IN THE CONTEXT OF THE REST OF THE STATUTE (ANTE, P. 216,
N. 2) AND IN THE ABSENCE OF ANY RELEVANT AUTHORITATIVE STATE JUDICIAL
DECISION, FAIR WARNING THAT THE PUBLICATION OF AN EDITORIAL OF THIS
KIND WAS REACHED BY THE FOREGOING PROVISIONS OF THE ALABAMA CORRUPT
PRACTICES ACT.  SEE WINTERS V. NEW YORK, 333 U.S. 507.  I DEEM A
BROADER HOLDING UNNECESSARY. 

FN1  AT ORAL ARGUMENT IN THIS COURT APPELLANT'S COUNSEL CONCEDED THAT
A JURY TRIAL WAS STILL OBTAINABLE, SEE ALA. CODE, TIT. 13, SEC 326;
TIT. 15, SEC 321 (1958 RECOMP.), AND THAT IT MIGHT RESULT IN AN
ACQUITTAL. 

FN2  COMPARE CONSTRUCTION LABORERS V. CURRY, 371 U.S. 542, AND
MERCANTILE NATIONAL BANK V. LANGDEAU, 371 U.S. 555.  THE THREE CASES
CITED BY THE COURT, ANTE, P. 218, FALL SHORT OF SUPPORTING THE
"FINALITY" OF THE JUDGMENT BEFORE US.  NONE OF THEM INVOLVED JURY
TRIALS, AND IN EACH INSTANCE THE CASE WAS RETURNED TO THE LOWER COURT
IN A POSTURE WHERE AS A PRACTICAL MATTER ALL THAT REMAINED TO BE DONE
WAS TO ENTER JUDGMENT.  WHAT IS DONE TODAY MORE THAN EVER ERODES THE
FINAL JUDGMENT RULE. 
..END :
























U.S. V. STANDARD OIL CO. 384 U.S. 224 


NO. 291.  ARGUED JANUARY 25, 1966.  - DECIDED MAY 23, 1966.  -
REVERSED. 


APPELLANT WAS INDICTED FOR DISCHARGING GASOLINE INTO NAVIGABLE WATERS
IN VIOLATION OF THE PROSCRIPTION IN SEC 13 OF THE RIVERS AND HARBORS
ACT AGAINST DISCHARGE THEREIN OF "ANY REFUSE MATTER OF ANY KIND OR
DESCRIPTION."  THE DISTRICT COURT DISMISSED THE INDICTMENT ON THE
GROUND THAT "REFUSE MATTER" DOES NOT INCLUDE COMMERCIALLY VALUABLE
MATERIAL.  HELD: THE DISCHARGE OF COMMERCIALLY VALUABLE GASOLINE INTO
NAVIGABLE WATERS IS ENCOMPASSED BY SEC 13 OF THE ACT.  PP. 225-230. 

(A)  PETROLEUM PRODUCTS, WHETHER USEABLE OR NOT, WHEN DISCHARGED INTO
NAVIGABLE WATERS CONSTITUTE A MENACE TO NAVIGATION AND POLLUTE RIVERS
AND HARBORS.  P. 226. 

(B)  THE RIVERS AND HARBORS ACT OF 1899 WAS A CONSOLIDATION OF PRIOR
ACTS WHICH ENUMERATED VARIOUS POLLUTANTS AND IMPEDIMENTS TO NAVIGATION,
DRAWING NO DISTINCTION BETWEEN VALUABLE AND VALUELESS SUBSTANCES; THE
TERM "REFUSE MATTER" IN THE PRESENT ACT IS A SHORTHAND SUBSTITUTE FOR
THE EXHAUSTIVE LIST OF SUBSTANCES FOUND IN THE EARLIER ACTS.  PP. 226
229. 

(C)  THE WORD "REFUSE" INCLUDES ALL FOREIGN SUBSTANCES AND POLLUTANTS
EXCEPT, AS PROVIDED IN SEC 13, THOSE "FLOWING FROM STREETS AND SEWERS
AND PASSING THEREFROM IN A LIQUID STATE" INTO THE WATERCOURSE.  P.
230. 

UNITED STATES V. STANDARD OIL CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF FLORIDA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED FOR DECISION IS WHETHER THE STATUTORY BAN ON
DEPOSITING "ANY REFUSE MATTER OF ANY KIND OR DESCRIPTION"  (FN1)  IN A
NAVIGABLE WATER COVERS THE DISCHARGE OF COMMERCIALLY VALUABLE AVIATION
GASOLINE. 


"IT SHALL NOT BE LAWFUL TO THROW, DISCHARGE, OR DEPOSIT  ...  ANY
REFUSE MATTER OF ANY KIND OR DESCRIPTION WHATEVER OTHER THAN THAT
FLOWING FROM STREETS AND SEWERS AND PASSING THEREFROM IN A LIQUID
STATE, INTO ANY NAVIGABLE WATER OF THE UNITED STATES  ...  ."  33
U.S.C. SEC 407 (1964 ED.). 

THE INDICTMENT CHARGED APPELLEE, STANDARD OIL (KENTUCKY), WITH
VIOLATING SEC 13 BY ALLOWING TO BE DISCHARGED INTO THE ST. JOHNS RIVER
"REFUSE MATTER" CONSISTING OF 100-OCTANE AVIATION GASOLINE.  APPELLEE
MOVED TO DISMISS THE INDICTMENT, AND, FOR THE PURPOSES OF THE MOTION,
THE PARTIES ENTERED INTO A STIPULATION OF FACT.  IT STATES THAT THE
GASOLINE WAS COMMERCIALLY VALUABLE AND THAT IT WAS DISCHARGED INTO THE
ST. JOHNS ONLY BECAUSE A SHUT-OFF VALVE AT DOCKSIDE HAD BEEN
"ACCIDENTALLY" LEFT OPEN. 

THE DISTRICT COURT DISMISSED THE INDICTMENT BECAUSE IT WAS OF THE
VIEW THAT THE STATUTORY PHRASE "REFUSE MATTER" DOES NOT INCLUDE
COMMERCIALLY VALUABLE OIL.  THE UNITED STATES APPEALED DIRECTLY TO THIS
COURT UNDER THE CRIMINAL APPEALS ACT (18 U.S.C. SEC 3731 (1964 ED.)). 
WE NOTED PROBABLE JURISDICTION.  382 U.S. 807. 

THIS CASE COMES TO US AT A TIME IN THE NATION'S HISTORY WHEN THERE IS
GREATER CONCERN THAN EVER OVER POLLUTION - ONE OF THE MAIN THREATS TO
OUR FREE-FLOWING RIVERS AND TO OUR LAKES AS WELL.  THE CRISIS THAT WE
FACE IN THIS RESPECT WOULD NOT, OF COURSE, WARRANT US IN MANUFACTURING
OFFENSES WHERE CONGRESS HAS NOT ACTED NOR IN STRETCHING STATUTORY
LANGUAGE IN A CRIMINAL FIELD TO MEET STRANGE CONDITIONS.  BUT WHATEVER
MAY BE SAID OF THE RULE OF STRICT CONSTRUCTION, IT CANNOT PROVIDE A
SUBSTITUTE FOR COMMON SENSE, PRECEDENT, AND LEGISLATIVE HISTORY.  WE
CANNOT CONSTRUE SEC 13 OF THE RIVERS AND HARBORS ACT IN A VACUUM.  NOR
CAN WE READ IT AS BARON PARKE (FN2) WOULD READ A PLEADING. 

THE STATUTORY WORDS ARE "ANY REFUSE MATTER OF ANY KIND OR
DESCRIPTION."  WE SAID IN UNITED STATES V. REPUBLIC STEEL CORP., 362
U.S. 482, 491, THAT THE HISTORY OF THIS PROVISION AND OF RELATED
LEGISLATION DEALING WITH OUR FREE-FLOWING RIVERS "FORBIDS A NARROW,
CRAMPED READING" OF SEC 13.  THE DISTRICT COURT RECOGNIZED THAT IF THIS
WERE WASTE OIL IT WOULD BE "REFUSE MATTER" WITHIN THE MEANING OF SEC 13
BUT CONCLUDED THAT IT WAS NOT WITHIN THE STATUTE BECAUSE IT WAS
"VALUABLE" OIL.  (FN3) THAT IS "A NARROW, CRAMPED READING" OF SEC 13 IN
PARTIAL DEFEAT OF ITS PURPOSE. 

OIL IS OIL AND WHETHER USEABLE OR NOT BY INDUSTRIAL STANDARDS IT HAS
THE SAME DELETERIOUS EFFECT ON WATERWAYS.  IN EITHER CASE, ITS PRESENCE
IN OUR RIVERS AND HARBORS IS BOTH A MENACE TO NAVIGATION AND A
POLLUTANT.  THIS SEEMS TO BE THE ADMINISTRATIVE CONSTRUCTION OF SEC 13,
THE SOLICITOR GENERAL ADVISING US THAT IT IS THE BASIS OF PROSECUTION
IN APPROXIMATELY ONE-THIRD OF THE OIL POLLUTION CASES REPORTED TO THE
DEPARTMENT OF JUSTICE BY THE OFFICE OF THE CHIEF OF ENGINEERS. 


AN 1886 ACT (24 STAT. 329) MADE IT UNLAWFUL TO EMPTY "ANY BALLAST,
STONE, SLATE, GRAVEL, EARTH, SLACK, RUBBISH, WRECK, FILTH, SLABS,
EDGINGS, SAWDUST, SLAG, OR CINDERS, OR OTHER REFUSE OR MILL-WASTE OF
ANY KIND INTO NEW YORK HARBOR" - WHICH PLAINLY INCLUDES VALUABLE PRE
DISCHARGE MATERIAL. 

AN 1888 ACT (25 STAT. 209) "TO PREVENT OBSTRUCTIVE AND INJURIOUS
DEPOSITS" WITHIN THE HARBOR OF NEW YORK AND ADJACENT WATERS BANNED THE
DISCHARGE OF "REFUSE, DIRT, ASHES, CINDERS, MUD, SAND, DREDGINGS,
SLUDGE, ACID, OR ANY OTHER MATTER OF ANY KIND, OTHER THAN THAT FLOWING
FROM STREETS, SEWERS, AND PASSING THEREFROM IN A LIQUID STATE" - WHICH
ALSO PLAINLY INCLUDES VALUABLE PRE-DISCHARGE MATERIAL. 

THE 1890 ACT (26 STAT. 453) MADE UNLAWFUL EMPTYING INTO NAVIGABLE
WATERS "ANY BALLAST, STONE, SLATE, GRAVEL, EARTH, RUBBISH, WRECK,
FILTH, SLABS, EDGINGS, SAWDUST, SLAG, CINDERS, ASHES, REFUSE, OR OTHER
WASTE OF ANY KIND  ...  WHICH SHALL TEND TO IMPEDE OR OBSTRUCT
NAVIGATION."  HERE ALSO VALUABLE PRE-DISCHARGE MATERIALS WERE
INCLUDED. 

THE 1894 ACT (28 STAT. 363) PROHIBITED DEPOSITS IN HARBORS AND RIVERS
FOR WHICH CONGRESS HAD APPROPRIATED MONEY FOR IMPROVEMENTS, OF
"BALLAST, REFUSE, DIRT, ASHES, CINDERS, MUD, SAND, DREDGINGS, SLUDGE,
ACID, OR ANY OTHER MATTER OF ANY KIND OTHER THAN THAT FLOWING FROM
STREETS, SEWERS, AND PASSING THEREFROM IN A LIQUID STATE."  THIS ACT
ALSO INCLUDED VALUABLE PRE-DISCHARGE MATERIAL. 

THE ACTS OF 1886 AND 1888, THEN, DEALT SPECIFICALLY WITH THE NEW YORK
HARBOR; THE SCOPE OF THE LATTER WAS CONSIDERABLY BROADER, COVERING AS
IT DID THE DEPOSIT OF "ANY OTHER MATTER OF ANY KIND."  THE ACTS OF 1890
AND 1894 PARALLELED THE EARLIER ENACTMENTS PERTAINING TO NEW YORK,
APPLYING THEIR TERMS TO WATERWAYS THROUGHOUT THE NATION. 

THE 1899 ACT NOW BEFORE US WAS NO MORE THAN AN ATTEMPT TO CONSOLIDATE
THESE PRIOR ACTS INTO ONE.  IT WAS INDEED STATED BY THE SPONSOR IN THE
SENATE TO BE "IN ACCORD WITH THE STATUTES NOW IN EXISTENCE,ONLY
SCATTERED  ...  FROM THE BEGINNING OF THE STATUTES DOWN THROUGH TO THE
END" (32 CONG. REC. 2296), AND REFLECTING MERELY "VERY SLIGHT CHANGES
TO REMOVE AMBIGUITIES."  ID., P. 2297. 

FROM AN EXAMINATION OF THESE STATUTES, SEVERAL POINTS ARE CLEAR. 
FIRST, THE 1894 ACT AND ITS ANTECEDENT, THE 1888 ACT APPLICABLE TO THE
NEW YORK HARBOR,  (FN4) DREW ON THEIR FACE NO DISTINCTION BETWEEN
VALUABLE AND VALUELESS SUBSTANCES.  SECOND, OF THE ENUMERATED
SUBSTANCES, SOME MAY WELL HAVE HAD COMMERCIAL OR INDUSTRIAL VALUE PRIOR
TO DISCHARGE INTO THE COVERED WATERWAYS.  TO BE MORE SPECIFIC, ASHES
AND ACIDS WERE BANNED WHETHER OR NOT THEY HAD ANY REMAINING COMMERCIAL
OR INDUSTRIAL VALUE.  THIRD, THESE ACTS APPLIED NOT ONLY TO THE
ENUMERATED SUBSTANCES BUT ALSO TO THE DISCHARGE OF "ANY OTHER MATTER OF
ANY KIND."  SINCE THE ENUMERATED SUBSTANCES INCLUDED THOSE WITH A PRE
DISCHARGE VALUE, THE RULE OF EJUSDEM GENERIS DOES NOT REQUIRE LIMITING
THIS LATTER CATEGORY TO SUBSTANCES LACKING A PRE-DISCHARGE VALUE. 
FOURTH, THE COVERAGE OF THESE ACTS WAS NOT DIMINISHED BY THE
CODIFICATION OF 1899.  THE USE OF THE TERM "REFUSE" IN THE CODIFICATION
SERVES IN THE PLACE OF THE LENGTHY LIST OF ENUMERATED SUBSTANCES FOUND
IN THE EARLIER ACTS AND THE CATCH-ALL PROVISION FOUND IN THE ACT OF
1890.  THE LEGISLATIVE HISTORY DEMONSTRATES WITHOUT CONTRADICTION THAT
CONGRESS INTENDED TO CODIFY WITHOUT SUBSTANTIVE CHANGE THE EARLIER
ACTS. 

THE PHILOSOPHY OF THOSE ANTECEDENT LAWS SEEMS TO US TO BE CLEARLY
EMBODIED IN THE PRESENT LAW.  IT IS PLAIN FROM ITS LEGISLATIVE HISTORY
THAT THE "SERIOUS INJURY" TO OUR WATERCOURSES (S. REP. NO. 224, 50TH
CONG., 1ST SESS., P.2) SOUGHT TO BE REMEDIED WAS CAUSED IN PART BY
OBSTACLES THAT IMPEDED NAVIGATION AND IN PART BY POLLUTION - "THE
DISCHARGE OF SAWMILL WASTE INTO STREAMS" (IBID.) AND THE INJURY OF
CHANNELS BY "DEPOSITS OF BALLAST, STEAM-BOAT ASHES, OYSTERS, AND
RUBBISH FROM PASSING VESSELS."  IBID.  THE LIST IS OBVIOUSLY NOT AN
EXHAUSTIVE LIST OF POLLUTANTS.  THE WORDS OF THE ACT ARE BROAD AND
INCLUSIVE: "ANY REFUSE MATTER OF ANY KIND OR DESCRIPTION WHATEVER." 
ONLY ONE EXCEPTION IS STATED: "OTHER THAN THAT FLOWING FROM STREETS AND
SEWERS AND PASSING THEREFROM IN A LIQUID STATE, INTO ANY NAVIGABLE
WATER OF THE UNITED STATES."  MORE COMPREHENSIVE LANGUAGE WOULD BE
DIFFICULT TO SELECT.  THE WORD "REFUSE" DOES NOT STAND ALONE; THE
"REFUSE" BANNED IS "OF ANY KIND OR DESCRIPTION WHATEVER," APART FROM
THE ONE EXCEPTION NOTED.  AND, FOR THE REASONS ALREADY STATED, THE
MEANING WE MUST GIVE THE TERM "REFUSE" MUST REFLECT THE PRESENT
CODIFICATION'S STATUTORY ANTECEDENTS. 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN UNITED STATES V.
BALLARD OIL CO., 195 F.2D 369 (L. HAND, AUGUSTUS HAND, AND HARRIE
CHASE, JJ.)  HELD THAT CAUSING GOOD OIL TO SPILL INTO A WATERCOURSE
VIOLATED SEC 13.  THE WORD "REFUSE" IN THAT SETTING, SAID THE COURT,
"IS SATISFIED BY ANYTHING WHICH HAS BECOME WASTE, HOWEVER USEFUL IT MAY
EARLIER HAVE BEEN."  (FN5)  ID., P. 371.  THERE IS NOTHING MORE
DESERVING OF THE LABEL "REFUSE" THAN OIL SPILLED INTO A RIVER. 

THAT SEEMS TO US TO BE THE COMMON SENSE OF THE MATTER.  THE WORD
"REFUSE" INCLUDES ALL FOREIGN SUBSTANCES AND POLLUTANTS APART FROM
THOSE "FLOWING FROM STREETS AND SEWERS AND PASSING THEREFROM IN A
LIQUID STATE" INTO THE WATERCOURSE. 

THAT READING OF SEC 13 IS IN KEEPING WITH THE TEACHING OF MR. JUSTICE
HOLMES THAT A "RIVER IS MORE THAN AN AMENITY, IT IS A TREASURE."  NEW
JERSEY V. NEW YORK, 283 U.S. 336, 342.  IT READS SEC 13 CHARITABLY AS
UNITED STATES V. REPUBLIC STEEL CORP., SUPRA, ADMONISHED. 

WE PASS ONLY ON THE QUALITY OF THE POLLUTANT, NOT ON THE QUANTITY OF
PROOF NECESSARY TO SUPPORT A CONVICTION NOR ON THE QUESTION AS TO WHAT
SCIENTER REQUIREMENT THE ACT IMPOSES, AS THOSE QUESTIONS ARE NOT BEFORE
US IN THIS RESTRICTED APPEAL.  (FN6) REVERSED. 

FN1  30 STAT. 1152, 33 U.S.C. SEC 407 (1964 ED.). 

FN2  A MAN WHOSE "FAULT WAS AN ALMOST SUPERSTITIOUS REVERENCE FOR THE
DARK TECHNICALITIES OF SPECIAL PLEADING."  XV DICTIONARY OF NATIONAL
BIOGRAPHY, P. 226 (STEPHEN AND LEE ED.  1937-1938). 

FN3  THE DISTRICT COURT FOLLOWED THE DECISION OF THE UNITED STATES
DISTRICT COURT IN UNITED STATES V. THE DELVALLE, 45 F. SUPP. 746, 748,
WHERE IT WAS SAID: "THE ACCIDENTAL DISCHARGE OF VALUABLE, USABLE OIL
...  DOES NOT CONSTITUTE  ...  A VIOLATION OF THE STATUTE." 

FN4  THE CODIFICATION DID NOT INCLUDE THE ACTS OF 1886 AND 1888 WHICH
PERTAINED ONLY TO NEW YORK.  THESE REMAIN IN EFFECT AND ARE FOUND AT 33
U.S.C. SECS 441-451 (1964 ED.).  THE NEW YORK HARBOR STATUTE HAS BEEN
HELD TO APPLY NOT ONLY TO WASTE OIL WHICH WAS UNINTENTIONALLY
DISCHARGED (THE ALBANIA, 30 F.2D 727) BUT ALSO TO VALUABLE OIL
NEGLIGENTLY DISCHARGED.  THE COLOMBO, 42 F.2D 211. 

FN5  THE DECISIONS IN THE INSTANT CASE BELOW AND IN UNITED STATES V.
THE DELVALLE, SUPRA, N.3, ARE AGAINST THE STREAM OF AUTHORITY.  AN
UNREPORTED DECISION OF A UNITED STATES DISTRICT COURT IN 1922 (UNITED
STATES V. CROUCH), HOLDING SEC 13 INAPPLICABLE TO POLLUTING BUT
NONOBSTRUCTING DEPOSITS, CAUSED THE OIL POLLUTION ACT, 1924, 43 STAT.
604, 33 U.S.C.  SEC 431 ET SEQ. (1964 ED.), TO BE PASSED.  SEE S. REP.
NO. 66, 68TH CONG., 1ST SESS.; H.R. REP. NO. 794, 68TH CONG., 1ST SESS.
IT IS APPLICABLE TO THE DISCHARGE OF OIL BY VESSELS INTO COASTAL
WATERS BUT NOT TO DEPOSITS INTO INLAND NAVIGABLE WATERS; AND IT
EXPLICITLY PROVIDES THAT IT DOES NOT REPEAL OR MODIFY OR IN ANY MANNER
AFFECT OTHER EXISTING LAWS.  33 U.S.C. SEC 437 (1964 ED.). 

FN6  "HAVING DEALT WITH THE CONSTRUCTION PLACED BY THE COURT BELOW
UPON THE SHERMAN ACT, OUR JURISDICTION ON THIS APPEAL IS EXHAUSTED.  WE
ARE NOT AT LIBERTY TO CONSIDER OTHER OBJECTIONS TO THE INDICTMENT OR
QUESTIONS WHICH MAY ARISE UPON THE TRIAL WITH RESPECT TO THE MERITS OF
THE CHARGE.  FOR IT IS WELL SETTLED THAT WHERE THE DISTRICT COURT HAS
BASED ITS DECISION ON A PARTICULAR CONSTRUCTION OF THE UNDERLYING
STATUTE, THE REVIEW HERE UNDER THE CRIMINAL APPEALS ACT IS CONFINED TO
THE QUESTION OF THE PROPRIETY OF THAT CONSTRUCTION."  UNITED STATES V.
BORDEN CO., 308 U.S. 188, 206-207. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK AND MR. JUSTICE STEWART
JOIN, DISSENTING. 

HAD THE MAJORITY IN JUDGING THIS CASE BEEN CONTENT TO CONFINE ITSELF
TO APPLYING RELEVANT RULES OF LAW AND TO LEAVE POLICIES AFFECTING THE
PROPER CONSERVATION OF THE NATION'S RIVERS TO BE DEALT WITH BY THE
CONGRESS, I THINK THAT TODAY'S DECISION IN THIS CRIMINAL CASE WOULD
HAVE EVENTUATED DIFFERENTLY.  THE BEST THAT CAN BE SAID FOR THE
GOVERNMENT'S CASE IS THAT THE REACH OF THE PROVISION OF SEC 13 OF THE
RIVERS AND HARBORS ACT OF 1899, 30 STAT. 1152, 33 U.S.C. SEC 407 (1964
ED.), UNDER WHICH THIS INDICTMENT IS LAID, IS UNCERTAIN.  THIS CALLS
INTO PLAY THE TRADITIONAL RULE THAT PENAL STATUTES ARE TO BE STRICTLY
CONSTRUED.  IN MY OPINION APPLICATION OF THAT RULE REQUIRES A DISMISSAL
OF THE INDICTMENT. 

                        I. 

NAVIGABLE RIVERS "OTHER THAN THAT FLOWING FROM STREETS AND SEWERS AND
PASSING THEREFROM IN A LIQUID STATE."  AS THE COURT NOTES, THIS 1899
ACT WAS PART OF A CODIFICATION OF PRIOR STATUTES.  THIS REVAMPING WAS
NOT DISCUSSED AT ANY LENGTH ON THE FLOOR OF EITHER HOUSE OF CONGRESS;
THE SENATE WAS INFORMED ONLY THAT THE PROVISIONS WERE MERELY A
CODIFICATION OF EXISTING LAW, WITHOUT CHANGES IN SUBSTANCE.  32 CONG.
REC. 2296-2297 (1899).  SECTION 13 WAS IN FACT BASED ON TWO VERY
SIMILAR PRIOR STATUTES.  THE RIVERS AND HARBORS APPROPRIATION ACT OF
1890 PROVIDED THE FIRST NATIONAL ANTI-OBSTRUCTION PROVISION, 26 STAT.
453: 

"SEC. 6.  THAT IT SHALL NOT BE LAWFUL TO CAST, THROW, EMPTY, OR
UNLADE, OR CAUSE, SUFFER, OR PROCURE TO BE CAST, THROWN, EMPTIED, OR
UNLADEN, EITHER FROM OR OUT OF ANY SHIP, VESSEL, LIGHTER, BARGE, BOAT,
OR OTHER CRAFT, OR FROM THE SHORE, PIER, WHARF, FURNACE, MANUFACTURING
ESTABLISHMENTS, OR MILLS OF ANY KIND WHATEVER, ANY BALLAST, STONE,
SLATE, GRAVEL, EARTH, RUBBISH, WRECK, FILTH, SLABS, EDGINGS, SAWDUST,
SLAG, CINDERS, ASHES, REFUSE, OR OTHER WASTE OF ANY KIND, INTO ANY
PORT, ROAD, ROADSTEAD, HARBOR, HAVEN, NAVIGABLE RIVER, OR NAVIGABLE
WATERS OF THE UNITED STATES WHICH SHALL TEND TO IMPEDE OR OBSTRUCT
NAVIGATION  ...  ."    A LATER STATUTE, SEC 6 OF THE RIVERS AND HARBORS
ACT OF 1894, 28 STAT. 363, PROVIDED SOMEWHAT SIMILARLY:    "THAT IT
SHALL NOT BE LAWFUL TO PLACE, DISCHARGE, OR DEPOSIT, BY ANY PROCESS OR
IN ANY MANNER, BALLAST, REFUSE, DIRT, ASHES, CINDERS, MUD, SAND,
DREDGINGS, SLUDGE, ACID, OR ANY OTHER MATTER OF ANY KIND OTHER THAN
THAT FLOWING FROM STREETS, SEWERS, AND PASSING THEREFROM IN A LIQUID
STATE, IN THE WATERS OF ANY HARBOR OR RIVER OF THE UNITED STATES, FOR
THE IMPROVEMENT OF WHICH MONEY HAS BEEN APPROPRIATED BY CONGRESS  ...
." 

THE COURT RELIES PRIMARILY ON THE LATTER ACT, CONTENDING THAT ITS
APPLICABILITY TO "ANY OTHER MATTER OF ANY KIND" WOULD SURELY ENCOMPASS
OIL, EVEN THOUGH COMMERCIALLY VALUABLE.  FURTHER, THE COURT NOTES
(ANTE, P. 228) THAT THE 1894 STATUTE WAS MODELED AFTER A FEDERAL
STATUTE OF 1888 DEALING WITH NEW YORK HARBOR, 25 STAT. 209.  UNDER THIS
NEW YORK HARBOR ACT, WHICH STILL REMAINS ON THE BOOKS, 33 U.S.C. SEC
441 ET SEQ. (1964 ED.), PROSECUTIONS FOR ACCIDENTAL DEPOSITS OF
COMMERCIALLY USEFUL OIL HAVE BEEN SUSTAINED.  THE COLOMBO, 42 F.2D
211.  THIS BACKGROUND IS THOUGHT TO REINFORCE THE VIEW THAT OIL OF ANY
TYPE WOULD FALL WITHIN THE 1894 STATUTE'S PURVIEW.  SINCE THE PRESENT
ENACTMENT WAS INTENDED TO BE MERELY A CODIFICATION, THE MAJORITY
CONCLUDES THAT THE CONSTRUCTION OF THE BROADER 1894 PREDECESSOR SHOULD
GOVERN. 

WHATEVER MIGHT BE SAID ABOUT HOW PROPERLY TO INTERPRET THE 1890 AND,
MORE ESPECIALLY, THE 1894 STATUTES, IT IS THE 1899 ACT THAT HAS BEEN ON
THE BOOKS FOR THE LAST 67 YEARS, AND ITS PURPOSES AND LANGUAGE MUST
GUIDE THE DETERMINATION OF THIS CASE.  TO THE EXTENT THAT THERE WERE
SOME DIFFERENCES IN SCOPE BETWEEN THE 1890 AND 1894 ACTS, THESE WERE
NECESSARILY RESOLVED IN THE 1899 CODIFICATION, WHICH, WHILE EMBODYING
THE ESSENTIAL THRUST OF BOTH PRIOR STATUTES, APPEARS FROM ITS PLAIN
LANGUAGE TO HAVE FAVORED THE MORE RESTRICTIVE COVERAGE OF THE 1890
ACT.  MOREOVER, IT IS QUESTIONABLE TO WHAT EXTENT THE COURT'S
SPECULATION AS TO THE MEANING OF A PHRASE IN ONE OF THE PRIOR STATUTES
IS RELEVANT AT ALL WHEN THE LANGUAGE OF THE PRESENT STATUTE, WHICH IS
PENAL IN NATURE, IS IN ITSELF EXPLICIT AND UNAMBIGUOUS. 

THE PURPOSE OF SEC 13 WAS ESSENTIALLY TO ELIMINATE OBSTRUCTIONS TO
NAVIGATION AND INTERFERENCE WITH PUBLIC WORKS PROJECTS.  THIS 1899
ENACTMENT, LIKE THE TWO PRE-EXISTING STATUTES WHICH IT WAS INTENDED TO
CODIFY, WAS A MINOR SECTION ATTACHED TO A MAJOR APPROPRIATION ACT
TOGETHER WITH OTHER MEASURES DEALING WITH SUNKEN WRECKS,  (FN1)
TRESPASSING AT PUBLIC WORKS SITES, (FN2) AND OBSTRUCTIONS CAUSED BY
IMPROPERLY CONSTRUCTED BRIDGES, PIERS, AND OTHER STRUCTURES.  (FN3)
THESE STATUTES WERE RENDERED NECESSARY PRIMARILY BECAUSE NAVIGABLE
RIVERS, WHICH THE CONGRESS WAS APPROPRIATING FUNDS TO IMPROVE, WERE
BEING OBSTRUCTED BY DEPOSITING OF WASTE MATERIALS BY FACTORIES AND
SHIPS.  (FN4)  IT IS OF COURSE TRUE, AS THE COURT OBSERVES, THAT "OIL
IS OIL," ANTE, P.226, AND THAT THE ACCIDENTAL SPILLAGE OF VALUABLE OIL
MAY HAVE SUBSTANTIALLY THE SAME "DELETERIOUS EFFECT ON WATERWAYS" AS
THE WHOLESALE DEPOSITING OF WASTE OIL.  BUT THE RELEVANT INQUIRY IS NOT
THE ADMITTEDLY IMPORTANT CONCERNS OF POLLUTION CONTROL, BUT CONGRESS'
PURPOSE IN ENACTING THIS ANTI-OBSTRUCTION ACT, AND THAT APPEARS QUITE
PLAINLY TO BE A DESIRE TO HALT THROUGH THE IMPOSITION OF CRIMINAL
PENALTIES THE DEPOSITING OF OBSTRUCTING REFUSE MATTER IN RIVERS AND
HARBORS. 

THE COURT'S CONSTRUCTION ESCHEWS THE EVERYDAY MEANING OF "REFUSE
MATTER" - WASTE, RUBBISH, TRASH, DEBRIS, GARBAGE, SEE WEBSTER'S NEW
INTERNATIONAL DICTIONARY, 3D ED. - AND ADOPTS INSTEAD AN APPROACH THAT
EITHER READS "REFUSE" OUT OF THE ACT ALTOGETHER, OR GIVES TO IT A
TORTURED MEANING.  THE COURT DECLARES, AT ONE POINT, THAT "THE WORD
'REFUSE' INCLUDES ALL FOREIGN SUBSTANCES AND POLLUTANTS APART FROM
THOSE 'FLOWING FROM STREETS AND SEWERS AND PASSING THEREFROM IN A
LIQUID STATE' INTO THE WATERCOURSE."  ANTE, P. 230.  THUS, DROPPING
ANYTHING BUT PURE WATER INTO A RIVER WOULD APPEAR TO BE A FEDERAL
MISDEMEANOR.  AT THE SAME TIME, THE COURT ALSO APPEARS TO ENDORSE THE
SECOND CIRCUIT'S SOMEWHAT NARROWER VIEW THAT "REFUSE MATTER" REFERS TO
ANY MATERIAL, HOWEVER VALUABLE, WHICH BECOMES UNSALVAGEABLE WHEN
INTRODUCED INTO THE WATER.  ANTE, PP. 229-230.  ON THIS LATTER
APPROACH, THE IMPOSITION OF CRIMINAL PENALTIES WOULD IN EFFECT DEPEND
IN EACH INSTANCE ON A PROSPECTIVE ESTIMATE OF SALVAGE COSTS.  SUCH
STRAINED DEFINITIONS OF A PHRASE THAT IS CLEAR AS A MATTER OF ORDINARY
ENGLISH HARDLY COMMEND THEMSELVES, AND AT THE VERY LEAST RAISE SERIOUS
DOUBTS AS TO THE INTENDED REACH OF SEC 13. 

   II. 

GIVEN THESE DOUBTS AS TO THE PROPER CONSTRUCTION OF "REFUSE MATTER"
IN SEC 13, WE MUST RECKON WITH A TRADITIONAL CANON THAT A PENAL STATUTE
WILL BE NARROWLY CONSTRUED.  SEE II HALE, HISTORIA PLACITORUM CORONAE
335 (1736); UNITED STATES V. WILTBERGER, 5 WHEAT.  76, 95.  THE REASONS
UNDERLYING THIS MAXIM ARE VARIOUS.  IT APPEARS LIKELY THAT THE RULE WAS
ORIGINALLY ADOPTED IN ORDER TO SPARE PEOPLE FROM THE EFFECTS OF
EXCEEDINGLY HARSH PENALTIES.  SEE HALL, STRICT OR LIBERAL CONSTRUCTION
OF PENAL STATUTES, 48 HARV. L. REV.  748, 750 (1935).  EVEN THOUGH THIS
RATIONALE MIGHT BE THOUGHT TO HAVE FORCE WERE THE DEFENDANT A NATURAL
PERSON,  (FN5) I CANNOT SAY THAT IT IS PARTICULARLY COMPELLING IN THIS
INSTANCE WHERE THE MAXIMUM PENALTY TO WHICH STANDARD OIL MIGHT BE
SUBJECT IS A FINE OF $2,500.  33 U.S.C. SEC 411 (1964 ED.). 

A MORE IMPORTANT CONTEMPORARY PURPOSE OF THE NOTION OF STRICT
CONSTRUCTION IS TO GIVE NOTICE OF WHAT THE LAW IS, IN ORDER TO GUIDE
PEOPLE IN THEIR EVERYDAY ACTIVITIES.  AGAIN, HOWEVER, IT IS DIFFICULT
TO JUSTIFY A NARROW READING OF SEC 13 ON THIS BASIS.  THE SPILLING OF
OIL OF ANY TYPE INTO RIVERS IS NOT SOMETHING ONE WOULD BE LIKELY TO DO
WHETHER OR NOT IT IS LEGALLY PROSCRIBED BY A FEDERAL STATUTE.  A BROAD
CONSTRUCTION WOULD HARDLY RAISE DANGERS OF PENALIZING PEOPLE WHO HAVE
BEEN INNOCENTLY POURING VALUABLE OIL INTO NAVIGABLE WATERS, FOR SUCH
CONDUCT IN FLORIDA IS UNLAWFUL WHATEVER THE EFFECT OF SEC 13.  A
FLORIDA STATUTE PENALIZING AS A MISDEMEANOR THE DEPOSITING INTO WATERS
WITHIN THE STATE OF "ANY RUBBISH, FILTH, OR POISONOUS OR DELETERIOUS
SUBSTANCE OR SUBSTANCES, LIABLE TO AFFECT THE HEALTH OF PERSONS, FISH,
OR LIVE STOCK  ...  ," FLA. STAT. ANN., SEC 387.08 (1960 ED.), QUITE
EVIDENTLY REACHES THE DUMPING OF COMMERCIAL OIL.  AND FLORIDA'S
NUISANCE LAW WOULD LIKEWISE SEEM TO MAKE THIS CONDUCT ACTIONABLE IN
EQUITY.  SEE, E.G., THE FERRY PASS INSPECTORS' & SHIPPERS' ASSN. V. THE
WHITES RIVER INSPECTORS' & SHIPPERS' ASSN., 57 FLA.  399, 48 SO. 643. 
FINALLY, AS NOTED EARLIER, ANTE, P. 229, N.5, PRIOR DECISIONS BY SOME
LOWER COURTS HAVE HELD SEC 13 APPLICABLE TO SPILLAGE OF OIL.  FOR THESE
REASONS THIS JUSTIFICATION FOR THE CANON OF STRICT CONSTRUCTION IS NOT
PERSUASIVE IN THIS INSTANCE. 

THERE IS, HOWEVER, A FURTHER REASON FOR APPLYING A SEEMINGLY
STRAIGHTFORWARD STATUTE IN A STRAIGHTFORWARD WAY.  IN MCBOYLE V. UNITED
STATES, 283 U.S. 25, THIS COURT HELD THAT A STATUTE MAKING IT A FEDERAL
CRIME TO MOVE A STOLEN "MOTOR VEHICLE" IN INTERSTATE COMMERCE DID NOT
APPLY TO A STOLEN AIRPLANE.  THAT TOO WAS A CASE IN WHICH PRECISE
CLARITY WAS NOT REQUIRED IN ORDER TO GIVE DUE WARNING OF THE LINE
BETWEEN PERMISSIBLE AND WRONGFUL CONDUCT, FOR THERE COULD NOT HAVE BEEN
ANY QUESTION BUT THAT STEALING AIRCRAFT WAS UNLAWFUL.  NEVERTHELESS,
MR. JUSTICE HOLMES DECLARED THAT "ALTHOUGH IT IS NOT LIKELY THAT A
CRIMINAL WILL CAREFULLY CONSIDER THE TEXT OF THE LAW BEFORE HE MURDERS
OR STEALS, IT IS REASONABLE THAT A FAIR WARNING SHOULD BE GIVEN TO THE
WORLD IN LANGUAGE THAT THE COMMON WORLD WILL UNDERSTAND, OF WHAT THE
LAW INTENDS TO DO IF A CERTAIN LINE IS PASSED."  283 U.S., AT 27.  THE
POLICY THUS EXPRESSED IS BASED PRIMARILY ON A NOTION OF FAIR PLAY: IN A
CIVILIZED STATE THE LEAST THAT CAN BE EXPECTED OF GOVERNMENT IS THAT IT
EXPRESS ITS RULES IN LANGUAGE ALL CAN REASONABLY BE EXPECTED TO
UNDERSTAND.  MOREOVER, THIS REQUIREMENT OF CLEAR EXPRESSION IS
ESSENTIAL IN A PRACTICAL SENSE TO CONFINE THE DISCRETION OF PROSECUTING
AUTHORITIES, PARTICULARLY IMPORTANT UNDER A STATUTE SUCH AS SEC 13
WHICH IMPOSES CRIMINAL PENALTIES WITH A MINIMAL, IF ANY, SCIENTER
REQUIREMENT.  (FN6) 

IN AN AREA IN WHICH STATE OR LOCAL LAW HAS TRADITIONALLY REGULATED
PRIMARY ACTIVITY,  (FN7) THERE IS GOOD REASON TO RESTRICT FEDERAL PENAL
LEGISLATION WITHIN THE CONFINES OF ITS LANGUAGE.  IF THE FEDERAL
GOVERNMENT FINDS THAT THERE IS SUFFICIENT OBSTRUCTION OR POLLUTION OF
NAVIGABLE WATERS CAUSED BY THE INTRODUCTION OF COMMERCIAL OIL OR OTHER
NONREFUSE MATERIAL, IT IS AN EASY MATTER TO ENACT APPROPRIATE
REGULATORY OR PENAL LEGISLATION.  (FN8)  SUCH LEGISLATION CAN BE
DIRECTED AT SPECIFIC TYPES OF POLLUTION, AND THE REMEDIES DEVISED
CAREFULLY TO ENSURE COMPLIANCE.  INDEED, SUCH A STATUTE WAS ENACTED IN
1924 TO DEAL WITH OIL POLLUTION IN COASTAL WATERS CAUSED BY VESSELS, 43
STAT.  605, 33 U.S.C. SECS 433, 434 (1964 ED.). 

TO CONCLUDE THAT THIS ATTEMPTED PROSECUTION CANNOT STAND IS NOT TO BE
OBLIVIOUS TO THE IMPORTANCE OF PRESERVING THE BEAUTIES AND UTILITY OF
THE COUNTRY'S RIVERS.  IT IS SIMPLY TO TAKE THE STATUTE AS WE FIND IT.
I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

FN1  RIVERS AND HARBORS ACT OF 1899, SEC 15, 30 STAT. 1152, 33 U.S.C.
SEC 409 (1964 ED.). 

FN2  RIVERS AND HARBORS ACT OF 1899, SEC 14, 30 STAT. 1152, 33 U.S.C.
SEC 408 (1964 ED.). 

FN3  RIVERS AND HARBORS ACT OF 1899, SEC 12, 30 STAT. 1151, 33 U.S.C.
SEC 406 (1964 ED.). 

FN4  CONGRESS WAS PRESENTED, WHEN CONSIDERING ONE OF THE PREDECESSORS
OF THE 1899 ACT, WITH THE REPRESENTATIONS OF THE OFFICE OF THE CHIEF OF
ARMY ENGINEERS THAT THERE HAD BEEN "SERIOUS INJURY TO NAVIGABLE WATERS
BY THE DISCHARGE OF SAWMILL WASTE INTO STREAMS  ...  .  IN FAIR-WAYS OF
HARBORS, CHANNELS ARE INJURED FROM DEPOSITS OF BALLAST, STEAM-BOAT
ASHES, OYSTERS, AND RUBBISH FROM PASSING VESSELS."  S. REP. NO. 224,
50TH CONG., 1ST SESS., 2 (1888).  SEE ALSO H.R. REP. NO. 1826, 55TH
CONG., 3D SESS., 3-4 (1899).  THERE IS NO SUPPORT FOR THE PROPOSITION
THAT THESE STATUTES WERE DIRECTED AT "POLLUTION" INDEPENDENTLY OF
"OBSTRUCTION." 

FN5  THE MINIMUM SENTENCE FOR AN INDIVIDUAL CONVICTED OF VIOLATING
SEC 13 IS A $500 FINE OR 30 DAYS' IMPRISONMENT, NOT AN INSIGNIFICANT
PENALTY FOR ACCIDENTALLY DROPPING FOREIGN MATTER INTO A RIVER.  33
U.S.C. SEC 411 (1964 ED.). 

FN6  THE PARTIES WERE NOT IN AGREEMENT AS TO WHAT SCIENTER
REQUIREMENT THE STATUTE IMPOSES.  THIS QUESTION IS NOT BEFORE US UNDER
THE RESTRICTED JURISDICTION GRANTED TO THIS COURT UNDER 18 U.S.C. SEC
3731 (1964 ED.), SEE UNITED STATES V. PETRILLO, 332 U.S. 1; UNITED
STATES V. BORDEN CO., 308 U.S. 188, AND THE COURT TODAY INTIMATES NO
VIEWS ON THE QUESTION. 

FN7  BESIDES THE FLORIDA POLLUTION STATUTE ADVERTED TO EARLIER, FLA.
STAT. ANN., SEC 387.08 (1960 ED.), THE CITY OF JACKSONVILLE HAS ENACTED
ORDINANCES DEALING GENERALLY WITH FIRE PREVENTION, JACKSONVILLE
ORDINANCE CODE SECS 19-4.1 TO 19-4.24 (1958 SUPP.), DISPOSAL OF WASTE
MATERIAL, SEC 21-12 (1958 SUPP.), AND POLLUTION OF THE CITY WATER
SUPPLY, SEC 27-52 (1953 CODE). 

FN8  SEE, E.G., SPECIAL MESSAGE OF THE PRESIDENT DEALING WITH NEW
ANTIPOLLUTION LEGISLATION, PRESERVATION OF OUR NATURAL HERITAGE -
MESSAGE FROM THE PRESIDENT OF THE UNITED STATES, H. DOC. NO. 387, 89TH
CONG., 2D SESS., CONG. REC., FEB. 23, 1966, PP. 3519-3522. 
..END :





















RAILWAY CLERKS V. FLORIDA E.C.R. CO. 384 U.S. 238 


NO. 750.  ARGUED APRIL 20, 1966.  - DECIDED MAY 23, 1966.* - 348 F.2D
682, AFFIRMED. 

*TOGETHER WITH NO. 782, UNITED STATES V. FLORIDA EAST COAST RAILWAY
CO., AND NO. 783, FLORIDA EAST COAST RAILWAY CO. V. UNITED STATES, ALSO
ON CERTIORARI TO THE SAME COURT. 


FOLLOWING UNION DEMANDS FOR A 25 CENTS HOURLY WAGE INCREASE AND A SIX
MONTHS' NOTICE REQUIREMENT FOR LAYOFFS AND JOB ABOLITIONS MADE ON
BEHALF OF NONOPERATING RAILROAD EMPLOYEES OF VIRTUALLY ALL CLASS I
RAILROADS, INCLUDING THE FLORIDA EAST COAST RAILWAY COMPANY (FEC),
NEGOTIATIONS AND MEDIATION OCCURRED UNDER THE RAILWAY LABOR ACT. 
EMPLOYEE PAY RATES, RULES, OR WORKING CONDITIONS AS EMBODIED IN
AGREEMENTS EXCEPT AS PRESCRIBED IN SUCH AGREEMENTS OR IN SEC 6, WHICH,
TOGETHER WITH SEC 5, REQUIRES NEGOTIATION AND MEDIATION.  THEREAFTER
FOLLOWING HEARINGS A PRESIDENTIAL EMERGENCY BOARD CONSTITUTED UNDER SEC
10 RECOMMENDED, AND ALL THE CARRIERS BUT FEC ACCEPTED, A PAY INCREASE
OF ABOUT 10 CENTS AN HOUR AND A FIVE DAYS' NOTICE BEFORE JOB
ABOLITION.  FOLLOWING FURTHER MEDIATION UNDER THE ACT, THE PARTIES'
REFUSAL VOLUNTARILY TO ARBITRATE AS SUGGESTED BY THE NATIONAL MEDIATION
BOARD, AND FURTHER UNSUCCESSFUL NEGOTIATIONS, THE NONOPERATING UNIONS
STRUCK, AND MOST OPERATING EMPLOYEES REFUSED TO CROSS THE PICKET
LINES.  AFTER A BRIEF SHUTDOWN, FEC RESUMED OPERATIONS WITH A
SUBSTANTIALLY DIFFERENT LABOR FORCE CONSISTING OF SUPERVISORY PERSONNEL
AND REPLACEMENTS, WITH WHOM IT MADE INDIVIDUAL EMPLOYMENT AGREEMENTS
WHICH WERE SUBSTANTIALLY DIFFERENT FROM THE EXISTING COLLECTIVE
BARGAINING AGREEMENTS.  FEC REFUSED UNION-PROPOSED MEDIATION BY THE
NATIONAL MEDIATION BOARD.  THEN, ALTHOUGH BOTH SIDES HAD REJECTED
ARBITRATION PRIOR TO THE STRIKE, THE UNIONS CHANGED THEIR POSITION AND
URGED ARBITRATION; AGAIN FEC REFUSED.  THE GOVERNMENT BROUGHT THIS
SUIT, IN WHICH THE NONOPERATING UNIONS INTERVENED AS PLAINTIFFS,
CHARGING THAT FEC'S UNILATERAL DEPARTURES FROM THE COLLECTIVE
BARGAINING AGREEMENTS VIOLATED THE ACT.  IN A PARALLEL INJUNCTIVE SUIT
AGAINST FEC BY AN OPERATING UNION, THE COURT OF APPEALS HELD THAT WHILE
FEC COULD NOT ABROGATE THE EXISTING COLLECTIVE BARGAINING AGREEMENTS,
IT COULD MAKE SUCH CHANGES IN THE AGREEMENTS AS THE DISTRICT COURT
FOUND WERE "REASONABLY NECESSARY" FOR IT TO OPERATE UNDER STRIKE
CONDITIONS.  FLORIDA EAST COAST R. CO. V. BROTHERHOOD OF R. TRAINMEN,
336 F.2D 172.  THE DISTRICT COURT, IN THE TRAINMEN CASE AND THIS CASE,
ENJOINED FEC TO ADHERE TO THE COLLECTIVE BARGAINING AGREEMENTS EXCEPT
UPON COURT AUTHORIZATION AFTER A FINDING THAT SUCH CHANGES WERE
"REASONABLY NECESSARY" FOR CONTINUED OPERATIONS UNDER STRIKE
CONDITIONS.  FEC APPLIED TO THE DISTRICT COURT FOR PERMISSION TO MAKE
NUMEROUS DEPARTURES FROM THE EXISTING AGREEMENTS, SOME OF WHICH THAT
COURT SANCTIONED AND SOME OF WHICH IT DISALLOWED.  BOTH SIDES APPEALED,
AND, FOLLOWING THE TRAINMEN CASE, THE COURT OF APPEALS AFFIRMED. 
HELD: 

1.  ALL THE PROCEDURES FOR SETTLEMENT OF THE MAJOR DISPUTE INVOLVED
UNDER SEC 2 SEVENTH OF THE ACT ARISING FROM THE UNIONS' DEMANDS HAVING
BEEN EXHAUSTED, THE UNIONS WERE WARRANTED IN STRIKING; AT THAT POINT
SELF-HELP WAS ALSO AVAILABLE TO THE CARRIER.  PP. 243-244. 

2.  A CARRIER, THOUGH NOT UNDER AN ABSOLUTE DUTY TO OPERATE, MUST
MAKE REASONABLE EFFORTS TO MAINTAIN PUBLIC SERVICE EVEN DURING A
STRIKE.  P. 245. 

3.  AFTER A STRIKE OCCURS, THE CARRIER, IF ITS RIGHT OF SELF-HELP AND
ITS DUTY TO OPERATE ARE TO BE MEANINGFUL, MUST BE ALLOWED TO DEPART
FROM THE COLLECTIVE BARGAINING AGREEMENT WITHOUT FIRST FOLLOWING THE
ACT'S LENGTHY COURSE FOR NEGOTIATION AND MEDIATION.  P. 246. 

4.  IF, HOWEVER, THE SPIRIT OF THE ACT IS TO BE HONORED, A CARRIER'S
POWER TO MAKE NEW TERMS GOVERNING ITS REPLACEMENT LABOR FORCE MUST BE
STRICTLY CONFINED TO THOSE TRULY NECESSARY IN LIGHT OF THE NEW LABOR
FORCE'S INEXPERIENCE OR THE LESSER NUMBER OF EMPLOYEES AVAILABLE FOR
CONTINUED OPERATION.  PP. 246-248. 

5.  FEC, WHICH DID NOT REFUSE ARBITRATION UNTIL AFTER THE STRIKE HAD
BEGUN AND ITS RIGHT OF SELF-HELP HAD ACCRUED, WAS NOT PRECLUDED FROM
SEEKING THE ASSISTANCE OF THE FEDERAL COURT.  TRAINMEN V. TOLEDO,
P.&W.R. CO., 321 U.S. 50, DISTINGUISHED.  PP. 247-248. 

BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS &
STATION EMPLOYEES, AFL-CIO, ET AL. V. FLORIDA EAST COAST RAILWAY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY STARTED WITH A UNION DEMAND ON BEHALF OF THE
NONOPERATING EMPLOYEES FOR A GENERAL 25-CENT-PER-HOUR WAGE INCREASE AND
A REQUIREMENT OF SIX MONTHS' ADVANCE NOTICE OF IMPENDING LAYOFFS AND
ABOLITION OF JOB POSITIONS.  THE DEMAND WAS MADE OF VIRTUALLY ALL CLASS
I RAILROADS, INCLUDING FLORIDA EAST COAST RAILWAY CO. (HEREINAFTER
CALLED FEC).  THE DISPUTE UNDERWENT NEGOTIATIONS AND MEDIATION AS
REQUIRED BY THE RAILWAY LABOR ACT.  (FN1)  WHEN THOSE PROCEDURES PROVED
UNSUCCESSFUL, A PRESIDENTIAL EMERGENCY BOARD WAS CREATED UNDER SEC 10
OF THE ACT,  (FN2) WHICH AFTER HEARINGS RECOMMENDED A GENERAL PAY
INCREASE OF ABOUT 10 CENTS PER HOUR AND A REQUIREMENT OF AT LEAST FIVE
DAYS' NOTICE BEFORE JOB ABOLITION.  IN JUNE 1962, THIS SETTLEMENT WAS
ACCEPTED BY ALL THE CARRIERS EXCEPT FEC.  THEREUPON, FURTHER MEDIATION
WAS INVOKED UNDER THE ACT BUT AGAIN NO SETTLEMENT WAS REACHED.  THE ACT
MAKES NO PROVISION FOR COMPULSORY ARBITRATION.  SECTION 5 FIRST  (FN3)
DOES, HOWEVER, PROVIDE FOR VOLUNTARY ARBITRATION AT THE SUGGESTION OF
THE NATIONAL MEDIATION BOARD.  THE SUGGESTION WAS MADE BUT BOTH THE
UNIONS AND FEC REFUSED.  FURTHER NEGOTIATIONS WERE UNSUCCESSFUL AND ON
JANUARY 23, 1963, THE NONOPERATING UNIONS STRUCK.  WHEN THAT HAPPENED,
MOST OPERATING EMPLOYEES REFUSED TO CROSS THE PICKET LINES. 

FEC SHUT DOWN FOR A SHORT PERIOD; AND THEN ON FEBRUARY 3, 1963,
RESUMED OPERATIONS BY EMPLOYING SUPERVISORY PERSONNEL AND REPLACEMENTS
TO FILL THE JOBS OF THE STRIKERS AND OF THOSE OPERATING EMPLOYEES WHO
WOULD NOT CROSS THE PICKET LINES.  FEC MADE INDIVIDUAL AGREEMENTS WITH
THE REPLACEMENTS CONCERNING THEIR RATES OF PAY, RULES AND WORKING
AGREEMENTS ON TERMS SUBSTANTIALLY DIFFERENT FROM THOSE IN THE
OUTSTANDING COLLECTIVE BARGAINING AGREEMENTS WITH THE VARIOUS UNIONS. 
THEREAFTER, FEC PROPOSED FORMALLY TO ABOLISH ALL THE EXISTING
COLLECTIVE BARGAINING AGREEMENTS AND TO SUBSTITUTE ANOTHER AGREEMENT
THAT WOULD MAKE RATHER SWEEPING DEPARTURES IN NUMEROUS RESPECTS FROM
THE EXISTING COLLECTIVE BARGAINING AGREEMENTS.  NEGOTIATIONS BETWEEN
FEC AND THE UNIONS BROKE DOWN.  THE UNIONS THEN INVOKED THE MEDIATION
SERVICES OF THE NATIONAL MEDIATION BOARD RELATIVE TO THE PROPOSED
CHANGES, BUT THE CARRIER REFUSED.  THE UNIONS THEREAFTER AGREED TO
SUBMIT THE UNDERLYING DISPUTE - THE ONE CONCERNING WAGES AND NOTICE -
TO ARBITRATION.  BUT FEC REFUSED ARBITRATION AND SHORTLY THEREAFTER
ESTABLISHED ANOTHER NEW AGREEMENT BY UNILATERAL ACTION AND OPERATED
UNDER IT UNTIL THE PRESENT ACTION WAS INSTITUTED BY THE UNITED STATES
IN 1964 - A SUIT CHARGING THAT THE UNILATERAL PROMULGATION OF THE NEW
AGREEMENT VIOLATED THE ACT.  (FN4)  THE NONOPERATING UNIONS INTERVENED
AS PLAINTIFFS AND HEARINGS WERE HELD.  MEANWHILE, THE COURT OF APPEALS
DECIDED FLORIDA EAST COAST R. CO. V. BROTHERHOOD OF R. TRAINMEN, 336
F.2D 172, A PARALLEL INJUNCTIVE SUIT BROUGHT AGAINST FEC BY AN
OPERATING UNION AND SIMILARLY COMPLAINING OF FEC'S UNILATERAL
PROMULGATION OF THE NEW AGREEMENT.  THAT COURT HELD THAT FEC HAD
VIOLATED THE ACT BY ITS UNILATERAL ABROGATION OF THE EXISTING
COLLECTIVE BARGAINING AGREEMENTS.  IT RULED, HOWEVER, THAT FEC COULD
UNILATERALLY INSTITUTE SUCH CHANGES IN ITS EXISTING AGREEMENTS AS THE
DISTRICT COURT FOUND TO BE "REASONABLY NECESSARY TO EFFECTUATE ITS
RIGHT TO CONTINUE TO RUN ITS RAILROAD UNDER THE STRIKE CONDITIONS." 
336 F.2D, AT 182.  THE DISTRICT COURT THEREAFTER ENTERED INJUNCTIONS IN
THE TRAINMEN CASE, AND IN THE PRESENT CASE, REQUIRING FEC TO ABIDE BY
ALL THE RATES OF PAY, RULES, AND WORKING CONDITIONS SPECIFIED IN THE
EXISTING COLLECTIVE BARGAINING AGREEMENTS UNTIL THE TERMINATION OF THE
STATUTORY MEDIATION PROCEDURE "EXCEPT UPON SPECIFIC AUTHORIZATION OF
THIS COURT AFTER A FINDING OF REASONABLE NECESSITY THEREFOR UPON
APPLICATION OF THE FEC TO THIS COURT." 

THEREUPON FEC FILED AN APPLICATION FOR APPROVAL OF SOME DEPARTURES
FROM ITS EXISTING AGREEMENTS WITH ITS NONOPERATING UNIONS.  THE
DISTRICT COURT, AFTER HEARINGS, GRANTED SOME REQUESTS AND DENIED
OTHERS.  THUS IT PERMITTED FEC TO EXCEED THE RATIO OF APPRENTICES TO
JOURNEYMEN AND AGE LIMITATIONS ESTABLISHED BY THE COLLECTIVE BARGAINING
AGREEMENTS, TO CONTRACT OUT CERTAIN WORK, AND TO USE SUPERVISORY
PERSONNEL TO PERFORM CERTAIN SPECIFIED JOBS WHERE IT APPEARED THAT
TRAINED PERSONNEL WERE UNAVAILABLE.  THE DISTRICT COURT DENIED FEC'S
REQUEST THAT IT BE PERMITTED TO DISREGARD COMPLETELY CRAFT AND
SENIORITY DISTRICT RESTRICTIONS, THAT IT BE ALLOWED TO USE SUPERVISORS
TO PERFORM CRAFT WORK WHENEVER IT DESIRED, THAT IT BE RELIEVED OF THE
DUTY TO PROVIDE SENIORITY ROSTERS, THAT IT BE PERMITTED TO CONTRACT OUT
WORK WHENEVER TRAINED PERSONNEL WERE UNAVAILABLE, AND THAT THE UNION
SHOP BE DECLARED VOID AND UNENFORCEABLE AS TO EMPLOYEES HIRED AFTER
JANUARY 23, 1963.   BOTH SIDES APPEALED.  THE COURT OF APPEALS AFFIRMED
ON THE BASIS OF ITS DECISION IN THE TRAINMEN CASE.  348 F.2D 682.  THE
UNIONS, THE UNITED STATES, AND FEC EACH PETITIONED FOR A WRIT OF
CERTIORARI WHICH WE GRANTED.  382 U.S. 1008. 

THE CONTROVERSY CENTERS AROUND SEC 2 SEVENTH OF THE ACT,  (FN5) WHICH
PROVIDES: 

"NO CARRIER, ITS OFFICERS OR AGENTS SHALL CHANGE THE RATES OF PAY,
RULES, OR WORKING CONDITIONS OF ITS EMPLOYEES, AS A CLASS AS EMBODIED
IN AGREEMENTS EXCEPT IN THE MANNER PRESCRIBED IN SUCH AGREEMENTS OR IN

THE DEMAND FOR A 25-CENT-PER-HOUR WAGE INCREASE AND FOR SIX MONTHS'
ADVANCE NOTICE OF IMPENDING LAYOFFS AND JOB ABOLITIONS WAS A MAJOR
DISPUTE COVERED BY SEC 2 SEVENTH (ELGIN, J.&E.R. CO. V. BURLEY, 325
U.S. 711, 723) AND IT HAD PROCEEDED THROUGH ALL THE MAJOR DISPUTE
PROCEDURES REQUIRED BY THE ACT WITHOUT SETTLEMENT.  THE UNIONS, HAVING
MADE THEIR DEMANDS AND HAVING EXHAUSTED ALL THE PROCEDURES PROVIDED BY
CONGRESS, WERE THEREFORE WARRANTED IN STRIKING.  FOR THE STRIKE HAS
BEEN THE ULTIMATE SANCTION OF THE UNION, COMPULSORY ARBITRATION NOT
BEING PROVIDED. 

AT THAT JUNCTURE SELF-HELP WAS ALSO AVAILABLE TO THE CARRIER AS WE
HELD IN LOCOMOTIVE ENGINEERS V. BALTIMORE & OHIO R. CO., 372 U.S. 284,
291: "  ...  BOTH PARTIES, HAVING EXHAUSTED ALL OF THE STATUTORY
PROCEDURES, ARE RELEGATED TO SELF-HELP IN ADJUSTING THIS DISPUTE  ...
." 

THE CARRIER'S RIGHT OF SELF-HELP IS UNDERLINED BY THE PUBLIC SERVICE
ASPECTS OF ITS BUSINESS.  "MORE IS INVOLVED THAN THE SETTLEMENT OF A
PRIVATE CONTROVERSY WITHOUT APPRECIABLE CONSEQUENCES TO THE PUBLIC." 
VIRGINIAN RY. V. FEDERATION, 300 U.S. 515, 552.  THE INTERSTATE
COMMERCE ACT, 24 STAT. 379, AS AMENDED, PLACES A RESPONSIBILITY ON
COMMON CARRIERS BY RAIL TO PROVIDE TRANSPORTATION.  (FN6)  THE DUTY
RUNS NOT TO SHIPPERS ALONE BUT TO THE PUBLIC.  IN OUR COMPLEX SOCIETY,
METROPOLITAN AREAS IN PARTICULAR MIGHT SUFFER A CALAMITY IF RAIL
SERVICE FOR FREIGHT OR FOR PASSENGERS WERE STOPPED.  FOOD AND OTHER
CRITICAL SUPPLIES MIGHT BE DANGEROUSLY CURTAILED; VITAL SERVICES MIGHT
BE IMPAIRED; WHOLE METROPOLITAN COMMUNITIES MIGHT BE PARALYZED. 

WE EMPHASIZE THESE ASPECTS OF THE PROBLEM NOT TO SAY THAT THE
CARRIER'S DUTY TO OPERATE IS ABSOLUTE, BUT ONLY TO EMPHASIZE THAT IT
OWES THE PUBLIC REASONABLE EFFORTS TO MAINTAIN THE PUBLIC SERVICE AT
ALL TIMES, EVEN WHEN BESET BY LABOR-MANAGEMENT CONTROVERSIES AND THAT
THIS DUTY CONTINUES EVEN WHEN ALL THE MEDIATION PROVISIONS OF THE ACT
HAVE BEEN EXHAUSTED AND SELF-HELP BECOMES AVAILABLE TO BOTH SIDES OF
THE LABOR-MANAGEMENT CONTROVERSY. 

IF ALL THAT WERE INVOLVED WERE THE PAY INCREASE AND THE NOTICE TO BE
GIVEN ON LAYOFFS OR JOB ABOLITION, THE PROBLEM WOULD BE SIMPLE.  THE
COMPLICATION ARISES BECAUSE THE CARRIER, HAVING UNDERTAKEN TO KEEP ITS
VITAL SERVICES GOING WITH A SUBSTANTIALLY DIFFERENT LABOR FORCE, FINDS
IT NECESSARY OR DESIRABLE TO MAKE OTHER CHANGES IN THE COLLECTIVE
BARGAINING AGREEMENTS.  THUS WE FIND FEC IN THIS CASE ANXIOUS TO EXCEED
THE RATIO OF APPRENTICES TO JOURNEYMEN AND THE AGE LIMITATIONS IN THE
COLLECTIVE BARGAINING AGREEMENTS, TO MAKE CHANGES IN THE CONTRACTING
OUT PROVISIONS, TO DISREGARD REQUIREMENTS FOR TRAINED PERSONNEL, TO
DISCARD CRAFT AND SENIORITY RESTRICTIONS, THE UNION SHOP PROVISION, AND
SO ON.  EACH OF THESE TECHNICALLY IS INCLUDED IN THE WORDS "RULES, OR
WORKING CONDITIONS OF ITS EMPLOYEES, AS A CLASS AS EMBODIED IN
AGREEMENTS" WITHIN THE MEANING OF SEC 2 SEVENTH OF THE ACT.  IT IS,
THEREFORE, ARGUED WITH FORCE THAT EACH OF THESE ISSUES MUST RUN THE
SAME GANTLET OF NEGOTIATION AND MEDIATION, AS DID THE PAY AND NOTICE
PROVISIONS THAT GAVE RISE TO THIS STRIKE. 

THE PRACTICAL EFFECT OF THAT CONCLUSION WOULD BE TO BRING THE
RAILROAD OPERATIONS TO A GRINDING HALT.  FOR THE PROCEDURES OF THE ACT
ARE PURPOSELY LONG AND DRAWN OUT, BASED ON THE HOPE THAT REASON AND
PRACTICAL CONSIDERATIONS WILL PROVIDE IN TIME AN AGREEMENT THAT
RESOLVES THE DISPUTE.  IF, THEREFORE, SEC 2 SEVENTH IS APPLICABLE AFTER
A LAWFUL STRIKE HAS BEEN CALLED AND AFTER LAWFUL SELF-HELP HAS BEEN
INVOKED BY THE CARRIER, THE RIGHT OF SELF-HELP MIGHT WELL BECOME
UNILATERAL TO THE WORKERS ALONE, AND DENIED THE CARRIER.  FOR WHEN A
CARRIER IMPROVISES AND EMPLOYS AN EMERGENCY LABOR FORCE IT MAY OR MAY
NOT BE ABLE TO COMPLY WITH THE TERMS OF A COLLECTIVE BARGAINING
AGREEMENT, DRAFTED TO MEET THE SOPHISTICATED REQUIREMENTS OF A TRAINED
AND PROFESSIONAL LABOR FORCE.  THE UNION REMAINS THE BARGAINING
REPRESENTATIVE OF ALL THE EMPLOYEES IN THE DESIGNATED CRAFT, WHETHER
UNION MEMBERS OR NOT.  STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192. 
ALL THESE EMPLOYEES OF THE RAILROAD ARE ENTITLED TO THE BENEFITS OF THE
COLLECTIVE BARGAINING AGREEMENT, AND THE CARRIER MAY NOT SUPERSEDE THE
AGREEMENT BY INDIVIDUAL CONTRACTS EVEN THOUGH PARTICULAR EMPLOYEES ARE
WILLING TO ENTER INTO THEM.  SEE TELEGRAPHERS V. RY. EXPRESS AGENCY,
321 U.S. 342, 347.  BUT WHEN A STRIKE OCCURS, BOTH THE CARRIER'S RIGHT
OF SELF-HELP AND ITS DUTY TO OPERATE, IF REASONABLY POSSIBLE, MIGHT
WELL BE ACADEMIC IF IT COULD NOT DEPART FROM THE TERMS AND CONDITIONS
OF THE COLLECTIVE BARGAINING AGREEMENT WITHOUT FIRST FOLLOWING THE
LENGTHY COURSE THE ACT OTHERWISE PRESCRIBES. 

AT THE SAME TIME, ANY POWER TO CHANGE OR REVISE THE BASIC COLLECTIVE
AGREEMENT MUST BE CLOSELY CONFINED AND SUPERVISED.  THESE COLLECTIVE
BARGAINING AGREEMENTS ARE THE PRODUCT OF YEARS OF STRUGGLE AND
NEGOTIATION; THEY REPRESENT THE RULES GOVERNING THE COMMUNITY OF
STRIKING EMPLOYEES AND THE CARRIER.  THAT COMMUNITY IS NOT DESTROYED BY
THE STRIKE, AS THE STRIKE REPRESENTS ONLY AN INTERRUPTION IN THE
CONTINUITY OF THE RELATION.  (FN7)  WERE A STRIKE TO BE THE OCCASION
FOR A CARRIER TO TEAR UP AND ANNUL, SO TO SPEAK, THE ENTIRE COLLECTIVE
BARGAINING AGREEMENT, LABOR-MANAGEMENT RELATIONS WOULD REVERT TO THE
JUNGLE.  A CARRIER COULD THEN USE THE OCCASION OF A STRIKE OVER A
SIMPLE WAGE AND HOUR DISPUTE TO MAKE SWEEPING CHANGES IN ITS WORK-RULES
SO AS TO PERMIT OPERATION ON TERMS WHICH COULD NOT CONCEIVABLY HAVE
BEEN OBTAINED THROUGH NEGOTIATION.  HAVING MADE SUCH CHANGES, A CARRIER
MIGHT WELL HAVE LITTLE INCENTIVE TO REACH A SETTLEMENT OF THE DISPUTE
THAT LED TO THE STRIKE.  IT MIGHT INDEED HAVE A STRONG REASON TO
PROLONG THE STRIKE AND EVEN BREAK THE UNION.  THE TEMPTATION MIGHT BE
STRONG TO PRECIPITATE A STRIKE IN ORDER TO PERMIT THE CARRIER TO
ABROGATE THE ENTIRE COLLECTIVE BARGAINING AGREEMENT ON TERMS MOST
FAVORABLE TO IT.  THE PROCESSES OF BARGAINING AND MEDIATION CALLED FOR
BY THE ACT WOULD INDEED BECOME A SHAM IF A CARRIER COULD UNILATERALLY
ACHIEVE WHAT THE ACT REQUIRES BE DONE BY THE OTHER ORDERLY PROCEDURES. 

WHILE THE CARRIER HAS THE DUTY TO MAKE ALL REASONABLE EFFORTS TO
CONTINUE ITS OPERATIONS DURING A STRIKE, ITS POWER TO MAKE NEW TERMS
AND CONDITIONS GOVERNING THE NEW LABOR FORCE IS STRICTLY CONFINED, IF
THE SPIRIT OF THE RAILWAY LABOR ACT IS TO BE HONORED.  (FN8)  THE COURT
OF APPEALS USED THE WORDS "REASONABLY NECESSARY."  WE DO NOT DISAGREE,
PROVIDED THAT "REASONABLY NECESSARY" IS CONSTRUED STRICTLY.  THE
CARRIER MUST RESPECT THE CONTINUING STATUS OF THE COLLECTIVE BARGAINING
AGREEMENT AND MAKE ONLY SUCH CHANGES AS ARE TRULY NECESSARY IN LIGHT OF
THE INEXPERIENCE AND LACK OF TRAINING OF THE NEW LABOR FORCE OR THE
LESSER NUMBER OF EMPLOYEES AVAILABLE FOR THE CONTINUED OPERATION.  THE
COLLECTIVE BARGAINING AGREEMENT REMAINS THE NORM; THE BURDEN IS ON THE
CARRIER TO SHOW THE NEED FOR ANY ALTERATION OF IT, AS RESPECTS THE NEW
AND DIFFERENT CLASS OF EMPLOYEES THAT IT IS REQUIRED TO EMPLOY IN ORDER
TO MAINTAIN THAT CONTINUITY OF OPERATION THAT THE LAW REQUIRES OF IT.
AFFIRMED. 

FN1  SEC 6, 44 STAT. 582, AS AMENDED, 48 STAT. 1197, 45 U.S.C. SEC
156 (1964 ED.); SEC 5 FIRST, 44 STAT. 580, AS AMENDED, 48 STAT. 1195,
45 U.S.C. SEC 155 FIRST (1964 ED.). 

FN2  44 STAT. 586, AS AMENDED, 48 STAT. 1197, 45 U.S.C. SEC 160 (1964
ED.). 

FN3  44 STAT. 580, AS AMENDED, 48 STAT. 1195, 45 U.S.C. SEC 155 FIRST
(1964 ED.). 

FN4  WE HAVE NO DOUBT THAT THE UNITED STATES HAD STANDING TO BRING
THIS ACTION.  SECTION 2 TENTH, 48 STAT. 1189, 45 U.S.C. SEC 152 TENTH
(1964 ED.), MAKES IT THE DUTY OF THE UNITED STATES ATTORNEY TO
"INSTITUTE IN THE PROPER COURT AND TO PROSECUTE  ...  ALL NECESSARY
PROCEEDINGS FOR THE ENFORCEMENT" OF SEC 2 WHICH FEC IS HERE CHARGED
WITH VIOLATING.  SEE UNITED STATES V. REPUBLIC STEEL CORP., 362 U.S.
482, 491-492.    FN5  48 STAT. 1188, 45 U.S.C. SEC 152 SEVENTH (1964
ED.). 

FN6  49 U.S.C. SEC 1(4) (1964 ED.)  PROVIDES IN PART: 

"IT SHALL BE THE DUTY OF EVERY COMMON CARRIER SUBJECT TO THIS CHAPTER
TO PROVIDE AND FURNISH TRANSPORTATION UPON REASONABLE REQUEST THEREFOR,
AND TO ESTABLISH REASONABLE THROUGH ROUTES WITH OTHER SUCH CARRIERS,
AND JUST AND REASONABLE RATES, FARES, CHARGES, AND CLASSIFICATIONS
APPLICABLE THERETO; ...  " 

49 U.S.C. SEC 1(11) (1964 ED.)  PROVIDES IN PART: 

"IT SHALL BE THE DUTY OF EVERY CARRIER BY RAILROAD SUBJECT TO THIS
CHAPTER TO FURNISH SAFE AND ADEQUATE CAR SERVICE AND TO ESTABLISH,
OBSERVE, AND ENFORCE JUST AND REASONABLE RULES, REGULATIONS, AND
PRACTICES WITH RESPECT TO CAR SERVICE; ...  " 

49 U.S.C. SEC 8 (1964 ED.)  PROVIDES IN PART: 

"IN CASE ANY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS CHAPTER
SHALL DO, CAUSE TO BE DONE, OR PERMIT TO BE DONE ANY ACT, MATTER, OR
THING IN THIS CHAPTER PROHIBITED OR DECLARED TO BE UNLAWFUL, OR SHALL
OMIT TO DO ANY ACT, MATTER, OR THING IN THIS CHAPTER REQUIRED TO BE
DONE, SUCH COMMON CARRIER SHALL BE LIABLE TO THE PERSON OR PERSONS
INJURED THEREBY FOR THE FULL AMOUNT OF DAMAGES SUSTAINED IN CONSEQUENCE
OF ANY SUCH VIOLATION OF THE PROVISIONS OF THIS CHAPTER  ...  ." 

FN7  IN THIS CONNECTION, IT BEARS EMPHASIS THAT THE DISTRICT COURT'S
AUTHORIZATION TO DEVIATE IN PART FROM THE COLLECTIVE BARGAINING
AGREEMENT WOULD, AS FEC READILY CONCEDES, TERMINATE AT THE CONCLUSION
OF THE STRIKE.  AT THAT TIME, THE TERMS OF THE EARLIER COLLECTIVE
BARGAINING AGREEMENT, EXCEPT AS MODIFIED BY ANY NEW AGREEMENT OF THE
PARTIES, WOULD BE FULLY IN FORCE. 

FN8  IF FEC HAD PRECIPITATED THE STRIKE BY REFUSING TO ARBITRATE,
THEN IT WOULD BE BARRED BY TRAINMEN V. TOLEDO, P.&W.R. CO., 321 U.S.
50, FROM OBTAINING INJUNCTIVE RELIEF IN THE COURTS SINCE IT WOULD HAVE
FAILED TO MAKE "EVERY REASONABLE EFFORT" TO SETTLE THE DISPUTE WITHIN
THE MEANING OF SEC 8 OF THE NORRIS-LAGUARDIA ACT, 47 STAT. 72, 29
U.S.C.  SEC 108 (1964 ED.).  AND WE ASSUME THAT SEEKING RELIEF FROM
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENTS WOULD HAVE FALLEN
UNDER THE SAME BAN.  BUT IN THE INSTANT CASE BOTH FEC AND THE UNIONS
REFUSED VOLUNTARY ARBITRATION AND THE STRIKE FOLLOWED.  LATER THE
UNIONS CHANGED THEIR MIND AND AGREED TO ARBITRATION, FEC REFUSING.  BUT
BY THEN THE STRIKE WAS ON AND THE RIGHT TO "SELF-HELP" HAD ACCRUED.  IF
AN ISSUE CONCERNING THE GOOD FAITH OF A PARTY IN REFUSING A PRE-STRIKE
OPPORTUNITY TO ARBITRATE WERE PRESENTED, DIFFERENT CONSIDERATIONS WOULD
APPLY. 

MOREOVER, SINCE THE JUSTIFICATION FOR PERMITTING THE CARRIER TO
DEPART FROM THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT LIES IN
ITS DUTY TO CONTINUE TO SERVE THE PUBLIC, A DISTRICT COURT CALLED UPON
TO GRANT A CARRIER'S RELIEF FROM PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT SHOULD SATISFY ITSELF THAT THE CARRIER IS ENGAGED
IN A GOOD-FAITH EFFORT TO RESTORE SERVICE TO THE PUBLIC AND NOT, E.G.,
USING THE STRIKE TO CURTAIL THAT SERVICE. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE WHITE, DISSENTING. 

THE ACT PROVIDES THAT UNTIL BARGAINING PROCEDURES ARE EXHAUSTED THERE
SHALL BE NEITHER STRIKES NOR CHANGES IN THE CONTRACT.  SECTION 2
SEVENTH (45 U.S.C. SEC 152 SEVENTH (1964 ED.)); SEC 5 FIRST (45 U.S.C.
SEC 155 FIRST (1964 ED.)); SEC 6 (45 U.S.C. SEC 156 (1964 ED.)).  HERE,
BARGAINING WAS EXHAUSTED ONLY ON WAGES AND NOTICE OF LAYOFFS AND JOB
ABOLITION.  AT THAT POINT THE UNION WAS FREE TO STRIKE AND THE CARRIER
TO MAKE SUCH CHANGES AS HAD BEEN BARGAINED FOR.  THE CARRIER WAS FREE
TO OPERATE, IF IT COULD, BUT IN MY VIEW ONLY UNDER THE TERMS OF THE
EXISTING COLLECTIVE BARGAINING CONTRACT AS MODIFIED WITH RESPECT TO
THOSE SUBJECTS ON WHICH THE ACT'S PROCEDURES HAD BEEN FOLLOWED. 

THE COURT AGREES THAT SEC 2 SEVENTH FORBIDS THE CARRIER ITSELF TO
MAKE ANY CHANGES IN THE CONTRACT OTHER THAN THOSE ON WHICH BARGAINING
HAS TAKEN PLACE, REGARDLESS OF HOW NECESSARY THESE CHANGES ARE TO THE
SUCCESSFUL OPERATION OF THE RAILROAD.  BUT WITH THE CONSENT OF A UNITED
STATES COURT, OR A STATE COURT FOR THAT MATTER, THE CARRIER MAY NOW
MAKE ANY CHANGE ESSENTIAL TO ITS CONTINUED OPERATION.  (FN1)  ALTHOUGH
THE UNION REMAINS THE BARGAINING AGENT FOR ALL EMPLOYEES, STRIKERS AND
REPLACEMENTS ALIKE, STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192, THE
CARRIER NEED NOT BARGAIN WITH IT, BUT WITH THE COURT, IF IT WANTS TO
MAKE CHANGES WHICH THE ACT FORBIDS IT TO MAKE ALONE.  THE UNION IS FREE
TO STRIKE AND THEREBY TO ATTEMPT TO HALT THE OPERATION OF THE RAILROAD;
BUT IF IT DOES, THE COURT MAY - INDEED, IT MUST IN SOME CIRCUMSTANCES -
PERMIT THE RAILROAD TO MAKE ANY CHANGE IN WAGES, HOURS AND WORKING
CONDITIONS WHICH IS NECESSARY TO OBVIATE THE NORMAL CONSEQUENCES OF THE
STRIKE.  I FAIL TO SEE HOW THIS EXCEPTION CAN BE READ INTO THE
UNEQUIVOCAL LANGUAGE OF SEC 2 SEVENTH. 

THIS IS VERY CLOSE TO A JUDGMENT THAT THERE SHALL BE NO STRIKES IN
THE TRANSPORTATION BUSINESS, A JUDGMENT WHICH CONGRESS REJECTED IN
DRAFTING THE RAILWAY LABOR ACT.  TRUE, THE ACT WAS DESIGNED TO MAXIMIZE
SETTLEMENTS AND MINIMIZE STRIKES,  (FN2) BUT CONGRESS STOPPED SHORT OF
IMPOSING COMPULSORY ARBITRATION, THE MOST OBVIOUS TECHNIQUE TO INSURE
THE SETTLEMENT OF DISPUTES AND TO PREVENT STRIKES.   SEC 5, 45 U.S.C.
SEC 155 (1964 ED.).  CERTAINLY IT WAS NOT ANTICIPATED THAT A STRUCK
RAILROAD COULD INVOKE THE AID OF THE COURT TO MAKE CHANGES IN A
CONTRACT WHICH CONGRESS HAD FORBIDDEN IT TO MAKE.  NOR DID CONGRESS
ANTICIPATE WHAT IS IN EFFECT A NEW TYPE OF RAILROAD RECEIVERSHIP
DESIGNED TO LAST AS LONG AS NECESSARY TO BLUNT THE EFFECTIVENESS OF A
STRIKE WHICH THE ACT LEFT THE UNION FREE TO CALL.  (FN3)  HAD CONGRESS
IMPRESSED UPON THE RAILROADS AN ABSOLUTE DUTY TO CONTINUE OPERATING
WHILE STRUCK, PERHAPS AN IMPLIED EXCEPTION TO SEC 2 SEVENTH MIGHT BE
WARRANTED.  BUT, AS THE MAJORITY RECOGNIZES, NO SUCH DUTY HAD BEEN
PLACED ON THE RAILROADS. 

OF COURSE THE RAILROAD WAS FREE TO OPERATE, BUT THE CONGRESS
SPECIFIED IN SEC 2 SEVENTH THE TERMS ON WHICH IT MIGHT DO SO.  TO
CHANGE THOSE TERMS IS A TASK FOR CONGRESS, NOT FOR A FEDERAL OR A STATE
COURT. 

FN1  CONGRESS HAS GENERALLY ENTRUSTED THE SPECIALIZED AND UNIQUE
AFFAIRS OF THE RAILROAD INDUSTRY TO A FEW EXPERT BOARDS AND AGENCIES. 
ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S. 711, 752 (FRANKFURTER, J.,
DISSENTING).  PERMITTING THE WHOLESALE INTERVENTION OF THE COURTS IN
THIS MANNER SEEMS INCONSISTENT WITH THESE CONGRESSIONAL POLICIES OF
UNIFORMITY AND EXPERT SUPERVISION.  CF. LABOR BOARD V. BROWN, 380 U.S.
278, 299 (WHITE, J., DISSENTING); AMERICAN SHIP BUILDING CO. V. LABOR
BOARD, 380 U.S. 300, 325-327 (WHITE, J., CONCURRING). 

FN2  IT IS CERTAINLY QUESTIONABLE WHETHER THE PROCEDURES APPROVED BY
THE MAJORITY WILL MINIMIZE STRIKES OR MAXIMIZE SETTLEMENTS.  THIS
PARTICULAR STRIKE IS ONE OF THE LONGEST IN RAILROAD HISTORY.  THERE CAN
BE NO DOUBT THAT THE PROCEDURES FOLLOWED IN THIS CASE HAVE HELPED
PROLONG THE STRIKE.  FOR EXAMPLE, IN PART BECAUSE OF THESE PROCEDURES,
FLORIDA EAST COAST ENJOYED A SUBSTANTIAL INCREASE IN ITS OPERATING
PROFITS DURING THE STRIKE PERIOD.  SEE BRIEF FOR GOVERNMENT, P.8, N.7. 

FN3  CF. SEC 77(N) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC 205(N) (1964
ED.), WHICH PROVIDES "NO JUDGE OR TRUSTEE ACTING UNDER THIS TITLE SHALL
CHANGE THE WAGES OR WORKING CONDITIONS OF RAILROAD EMPLOYEES EXCEPT IN
THE MANNER PRESCRIBED IN THE RAILWAY LABOR ACT  ...  ."  BURKE V.
MORPHY, 109 F.2D 572. 
..END :












UNITED STATES V. BLUE 384 U.S. 251 


NO. 531.  ARGUED APRIL 21, 1966.  - DECIDED MAY 23, 1966.  - REVERSED
AND REMANDED. 


APPELLEE WAS INFORMED BY THE INTERNAL REVENUE SERVICE IN 1962 THAT HE
MIGHT BE PROSECUTED CRIMINALLY FOR VIOLATION OF FEDERAL INCOME TAX
LAWS.  IN 1963 JEOPARDY ASSESSMENTS WERE MADE AGAINST HIM, HIS WIFE,
AND A WHOLLY OWNED CORPORATION, AND ALL KNOWN ASSETS OF ALL THREE WERE
SEIZED AND TAX LIENS RECORDED.  PURSUANT TO NOTICES GIVING APPELLEE 90
DAYS IN WHICH TO FILE PETITIONS IN THE TAX COURT CONTESTING THE
PROPOSED DEFICIENCIES, PETITIONS WERE FILED ALLEGING ERRORS IN THE
DETERMINATION THEREOF.  MORE THAN A YEAR LATER THIS CRIMINAL PROCEEDING
WAS BROUGHT CHARGING APPELLEE WITH WILFULLY ATTEMPTING TO EVADE INCOME
TAXES DURING THE SAME YEARS INVOLVED IN THE CIVIL PROCEEDING.  HE FILED
A PRETRIAL MOTION TO DISMISS THE INDICTMENT WHICH THE DISTRICT COURT
GRANTED ON THE BASIS THAT APPELLEE HAD BEEN COMPELLED TO BE A WITNESS
AGAINST HIMSELF BECAUSE OF THE NECESSITY OF FILING PETITIONS FOR REVIEW
OF JEOPARDY ASSESSMENTS IN THE TAX COURT.  THE GOVERNMENT FILED NOTICE
OF APPEAL, AND THE COURT OF APPEALS THEN GRANTED THE GOVERNMENT'S
MOTION TO CERTIFY THE CASE TO THIS COURT ON THE GROUND THAT THE
DISTRICT COURT'S DECISION SUSTAINED A MOTION IN BAR.  HELD: 

1.  APPELLEE'S MOTION WAS A MOTION IN BAR, THE SUSTAINING OF WHICH BY
THE DISTRICT COURT PERMITS DIRECT APPEAL TO THIS COURT.  PP. 253-254. 

(A)  THE DISMISSAL BY ITS OWN FORCE WOULD "END THE CAUSE AND
EXCULPATE THE DEFENDANT," RATHER THAN MERELY ABATE THE PROSECUTION ON
ACCOUNT OF A NORMALLY CURABLE DEFECT.  P. 254. 

(B)  ASSUMING THE NECESSITY OF THE INTRODUCTION OF "NEW MATTER" TO
CONSTITUTE A MOTION ONE IN BAR, APPELLEE UNQUESTIONABLY RELIED ON NEW
MATTER IN ALLEGING SELF-INCRIMINATION.  P. 254. 

2.  THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED BECAUSE EVEN IF THE
GOVERNMENT HAD ACQUIRED INCRIMINATING EVIDENCE IN VIOLATION OF THE
FIFTH AMENDMENT, APPELLEE WOULD AT MOST BE ENTITLED TO SUPPRESS THE
EVIDENCE AND ITS FRUITS IF THEY WERE SOUGHT TO BE USED AGAINST HIM AT
TRIAL.  P. 255. 

UNITED STATES V. BLUE. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN 1962 THE APPELLEE, BEN BLUE, WAS INFORMED BY THE INTERNAL REVENUE
SERVICE THAT HE MIGHT BE CRIMINALLY PROSECUTED FOR VIOLATION OF THE
FEDERAL INCOME TAX LAWS.  THE FOLLOWING YEAR THE SERVICE MADE JEOPARDY
ASSESSMENTS AGAINST BLUE, HIS WIFE, AND HIS WHOLLY OWNED CORPORATION
FOR TAX LIABILITY FOR THE YEARS 1958 TO 1960 INCLUSIVE; THE KNOWN
ASSETS OF ALL THREE WERE SEIZED AND TAX LIENS RECORDED.  INTERNAL
REVENUE CODE OF 1954, SECS 6321-6323, 6331, 6861.  STATUTORY NOTICES
WERE THEN ISSUED GIVING BLUE 90 DAYS WITHIN WHICH TO FILE PETITIONS IF
HE WISHED TO CONTEST THE PROPOSED DEFICIENCIES IN THE TAX COURT, I.R.C.
SEC 6213, AND BLUE FILED PETITIONS SETTING FORTH HIS POSITION AND
ALLEGING ERRORS IN THE COMMISSIONER'S DETERMINATION OF DEFICIENCIES. 
MORE THAN A YEAR LATER THE GOVERNMENT INITIATED THE PRESENT CRIMINAL
CASE BY A SIX-COUNT INDICTMENT CHARGING BLUE WITH WILFULLY ATTEMPTING
TO EVADE PERSONAL INCOME TAXES FOR THE YEARS 1958 THROUGH 1960 AND WITH
FILING FALSE RETURNS FOR HIS CORPORATION DURING THE SAME YEARS.  I.R.C.
SECS 7201, 7206(1). 

BLUE FILED A PRETRIAL MOTION SEEKING DISMISSAL OF THE INDICTMENT ON
SEVERAL GROUNDS.  AFTER A HEARING THE DISTRICT COURT GRANTED THE
MOTION.  THE COURT STATED ORALLY THAT BECAUSE OF THE JEOPARDY
ASSESSMENT AND TAX COURT PROCEEDING BLUE "HAS BEEN COMPELLED AND WILL
BE COMPELLED TO COME FORWARD ON THE SAME MATTERS AS ARE CONCERNED IN
THIS CRIMINAL CASE, TO TESTIFY AGAINST HIMSELF  ...  ."  (FN1) THE
GOVERNMENT FILED A NOTICE OF APPEAL AND THE CASE WAS DOCKETED IN THE
COURT OF APPEALS FOR THE NINTH CIRCUIT.  DETERMINING THAT THE DISTRICT
COURT HAD SUSTAINED A "MOTION IN BAR, WHEN THE DEFENDANT HAS NOT BEEN
PUT IN JEOPARDY" SO THAT A DIRECT APPEAL LAY TO THIS COURT,  (FN2)  THE
COURT OF APPEALS CERTIFIED THE CASE TO US, 350 F.2D 267, AND WE
POSTPONED JURISDICTION, 382 U.S. 971.  WE AGREE THAT THIS COURT HAS
JURISDICTION OVER THE APPEAL AND, ON THE MERITS, REVERSE THE DECISION
OF THE DISTRICT COURT. 

SINCE BLUE HAD NOT YET BEEN BROUGHT TO TRIAL AND PUT IN JEOPARDY WHEN
DISMISSAL OCCURRED, SEE UNITED STATES V. CELESTINE, 215 U.S. 278, 283,
OUR JURISDICTION UNDER THE STATUTE IS SECURE IF THE MOTION SUSTAINED BY
THE DISTRICT COURT WAS A MOTION IN BAR.  SEE, SUPRA, N. 2.  THIS IN
TURN DEPENDS ON "THE EFFECT OF THE RULING SOUGHT TO BE REVIEWED,"
UNITED STATES V. HARK, 320 U.S. 531, 536, AND NOT ON HOW THE PLEADING
IS STYLED OR ON WHETHER IT IS ULTIMATELY SUSTAINED ON APPEAL.  LIKE THE
COURT OF APPEALS, WE TAKE THE DISMISSAL IN THIS CASE AS A RULING THAT
ABSENT REVERSAL ON REVIEW FUTURE PROSECUTION OF BLUE ON THE PENDING
COUNTS IS FOREVER BARRED.  WHILE THERE ARE SLIGHT AMBIGUITIES IN
LANGUAGE, THE DISTRICT COURT'S DISMISSAL WAS GROUNDED IN WHAT IT FOUND
TO BE PAST COMPULSORY SELF-INCRIMINATION AND IN ITS APPARENT BELIEF
THAT THIS MISCHIEF COULD NOT BE UNDONE SAVE BY TURNING BACK THE CLOCK
THROUGH ENDING THE PROSECUTION. 

BECAUSE THE DISMISSAL BY ITS OWN FORCE WOULD "END THE CAUSE AND
EXCULPATE THE DEFENDANT," UNITED STATES V. HARK, 320 U.S., AT 536,
RATHER THAN MERELY ABATE THE PROSECUTION ON ACCOUNT OF SOME NORMALLY
CURABLE DEFECT, ONE REQUISITE OF A MOTION IN BAR IS MET.  WHETHER IT IS
A FURTHER REQUISTITE THAT THE MOTION INTRODUCE "NEW MATTER" IN THE
FASHION OF A PLEA BY WAY OF CONFESSION AND AVOIDANCE NEED NOT HERE BE
DECIDED.  SEE UNITED STATES V. MERSKY, 361 U.S. 431, 441, 453 (SEPARATE
OPINIONS DISAGREEING ON THIS POINT).  FOR IN THIS INSTANCE BLUE
UNQUESTIONABLY RELIED ON NEW MATTER IN ALLEGING SELF-INCRIMINATION, SO
THE MOTION QUALIFIES EVEN UNDER THE MORE STRINGENT DEFINITION.  THUS
UNDER EITHER VIEW OF A MOTION IN BAR TAKEN IN MERSKY, THIS CASE
QUALIFIES FOR DIRECT REVIEW.  OUR CONCLUSION ON THE JURISDICTIONAL
ISSUE IS FURTHER SUPPORTED BY TWO ANALOGOUS DECISIONS OF THIS COURT
TREATING CLAIMS OF STATUTORY IMMUNITY AS PLEAS IN BAR WHICH PERMITTED
DIRECT APPEAL.  UNITED STATES V. HOFFMAN, 335 U.S. 77; UNITED STATES V.
MONIA, 317 U.S. 424. 

ON THE MERITS OF THE CASE, WE DO NOT BELIEVE THAT THE DISTRICT COURT
SHOULD HAVE DISMISSED THE INDICTMENT.  THE GOVERNMENT HAS ARGUED THAT
THE STATEMENTS MADE BY BLUE IN HIS TAX COURT PETITIONS WERE NO MORE
THAN SUCCESSIVE DENIALS OF THE ALLEGED UNDERPAYMENTS AND DO NOT
CONSTITUTE INCRIMINATING EVIDENCE.  THE GOVERNMENT HAS ALSO INTIMATED
THAT BY MERELY PROVIDING THE OCCASION FOR THE FILING OF BLUE'S
PETITIONS IN FULFILLING ITS STATUTORY DUTY TO MAKE JEOPARDY ASSESSMENTS
AND SEND DEFICIENCY NOTICES, IT OUGHT NOT BE REGARDED AS COMPELLING THE
TAXPAYER TO INCRIMINATE HIMSELF WITHIN THE MEANING OF THE FIFTH
AMENDMENT.  THERE IS NO NEED, HOWEVER, TO CONSIDER THESE OR OTHER
CONTENTIONS THAT MAY POINT IN THE SAME DIRECTION. 

EVEN IF WE ASSUME THAT THE GOVERNMENT DID ACQUIRE INCRIMINATING
EVIDENCE IN VIOLATION OF THE FIFTH AMENDMENT, BLUE WOULD AT MOST BE
ENTITLED TO SUPPRESS THE EVIDENCE AND ITS FRUITS IF THEY WERE SOUGHT TO
BE USED AGAINST HIM AT TRIAL.  (FN3)  WHILE THE GENERAL COMMON-LAW
PRACTICE IS TO ADMIT EVIDENCE DESPITE ITS ILLEGAL ORIGINS, THIS COURT
IN A NUMBER OF AREAS HAS RECOGNIZED OR DEVELOPED EXCLUSIONARY RULES
WHERE EVIDENCE HAS BEEN GAINED IN VIOLATION OF THE ACCUSED'S RIGHTS
UNDER THE CONSTITUTION, FEDERAL STATUTES, OR FEDERAL RULES OF
PROCEDURE.  WEEKS V. UNITED STATES, 232 U.S. 383; ROGERS V. RICHMOND,
365 U.S. 534; MAPP V. OHIO, 367 U.S. 643; NARDONE V. UNITED STATES, 308
U.S. 338; MALLORY V. UNITED STATES, 354 U.S. 449.  OUR NUMEROUS
PRECEDENTS ORDERING THE EXCLUSION OF SUCH ILLEGALLY OBTAINED EVIDENCE
ASSUME IMPLICITLY THAT THE REMEDY DOES NOT EXTEND TO BARRING THE
PROSECUTION ALTOGETHER.  SO DRASTIC A STEP MIGHT ADVANCE MARGINALLY
SOME OF THE ENDS SERVED BY EXCLUSIONARY RULES, BUT IT WOULD ALSO
INCREASE TO AN INTOLERABLE DEGREE INTERFERENCE WITH THE PUBLIC INTEREST
IN HAVING THE GUILTY BROUGHT TO BOOK. 

WE REMAND THIS CASE TO THE DISTRICT COURT TO PROCEED ON THE MERITS,
LEAVING BLUE FREE TO PURSUE HIS FIFTH AMENDMENT CLAIM THROUGH MOTIONS
TO SUPPRESS AND OBJECTIONS TO EVIDENCE.  IT IS NOT ENTIRELY CLEAR FROM
BLUE'S BRIEF AND ARGUMENT WHETHER HE SEEKS TO SUSTAIN THE DISMISSAL
BELOW ON OTHER GROUNDS THAT THE DISTRICT COURT DID NOT ACCEPT.  SEE,
SUPRA, N. 1.  PUTTING TO ONE SIDE JURISDICTIONAL DIFFICULTIES THIS
COURSE MIGHT ENCOUNTER UNDER THE DIRECT-REVIEW STATUTE,  (FN4)  WE
BELIEVE IT IS FAIRER TO ALL TO REGARD NO OTHER GROUNDS AS PRESENTED,
THUS RESERVING TO BLUE THE OPPORTUNITY TO ARTICULATE THEM PLAINLY AND
SUPPORT THEM BY THE RECORD.  REVERSED AND REMANDED. 

FN1  THE COURT STATED THAT IT BASED THE DISMISSAL "ON THAT GROUND
ALONE."  IT REJECTED A CLAIM THAT THE SEIZURE OF PROPERTY AND RECORDING
OF TAX LIENS HAD PREVENTED BLUE FROM PREPARING AN ADEQUATE DEFENSE BY
DEPLETING HIS RESOURCES.  IT DID NOT EXPRESSLY CONSIDER BLUE'S CLAIM
THAT THERE IS AN ADMINISTRATIVE PRACTICE OF MAKING NO ASSESSMENTS IN
ADVANCE OF CRIMINAL PROCEEDINGS AND THAT FAILURE TO EXTEND THE POLICY
TO HIM WAS A DENIAL OF DUE PROCESS. 

FN2  18 U.S.C. SEC 3731 (1964 ED.)  PROVIDES IN PART: 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED STATES IN
ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES: 

     *         *         *         *         * 

"FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY. 

     *  *         *         *         * 

"IF AN APPEAL SHALL BE TAKEN PURSUANT TO THIS SECTION TO ANY COURT OF
APPEALS WHICH, IN THE OPINION OF SUCH COURT, SHOULD HAVE BEEN TAKEN
DIRECTLY TO THE SUPREME COURT OF THE UNITED STATES, SUCH COURT SHALL
CERTIFY THE CASE TO THE SUPREME COURT OF THE UNITED STATES, WHICH SHALL
THEREUPON HAVE JURISDICTION TO HEAR AND DETERMINE THE CASE TO THE SAME
EXTENT AS IF AN APPEAL HAD BEEN TAKEN DIRECTLY TO THAT COURT." 

FN3  IT DOES NOT SEEM TO BE CONTENDED THAT TAINTED EVIDENCE WAS
PRESENTED TO THE GRAND JURY; BUT IN ANY EVENT OUR PRECEDENTS INDICATE
THIS WOULD NOT BE A BASIS FOR ABATING THE PROSECUTION PENDING A NEW
INDICTMENT, LET ALONE BARRING IT ALTOGETHER.  SEE COSTELLO V. UNITED
STATES, 350 U.S. 359; LAWN V. UNITED STATES, 355 U.S. 339; 8 WIGMORE,
EVIDENCE SEC 2184A, AT 40 (MCNAUGHTON REV. 1961). 

FN4  SEE STERN & GRESSMAN, SUPREME COURT PRACTICE SEC 2-11, AT 31-33
(1962); FRIEDENTHAL, GOVERNMENT APPEALS IN FEDERAL CRIMINAL CASES, 12
STAN.  L. REV. 71, 97-100 (1959). 
..END :















UNITED STATES V. COOK 384 U.S. 257 


NO. 256.  ARGUED APRIL 19, 1966.  - DECIDED MAY 23, 1966.  - REVERSED. 


18 U.S.C. SEC 660, PROHIBITING EMBEZZLEMENTS BY EMPLOYEES OF "ANY
FIRM, ASSOCIATION, OR CORPORATION ENGAGED IN COMMERCE AS A COMMON
CARRIER," IN VIEW OF ITS LEGISLATIVE HISTORY, THE BROAD MEANING OF TERM
"FIRM," AND LACK OF REASON TO EXCLUDE FROM ITS PROTECTION THE LARGE
NUMBER OF COMMON CARRIERS OPERATED AS INDIVIDUAL PROPRIETORSHIPS, HELD
TO APPLY TO EMPLOYEES OF SUCH COMMON CARRIERS.   PP. 257-263. 

UNITED STATES V. COOK. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF TENNESSEE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER 18 U.S.C. SEC 660 (1964 ED.), WHICH
PROHIBITS CERTAIN EMBEZZLEMENTS BY EMPLOYEES OF "ANY FIRM, ASSOCIATION,
OR CORPORATION ENGAGED IN COMMERCE AS A COMMON CARRIER,"  (FN1)
APPLIES TO THE CONDUCT OF AN EMPLOYEE OF AN INDIVIDUAL DOING BUSINESS
AS A COMMON CARRIER.  THE INDICTMENT IN THIS CASE CHARGED THAT, WHILE
RIDING ON HIS EMPLOYER'S TRUCK, APPELLEE, "A TRUCK DRIVER FOR TOLBERT
HAWKINS, AN INDIVIDUAL ENGAGED IN COMMERCE AS A COMMON CARRIER,"
EMBEZZLED APPROXIMATELY $200 FROM FUNDS OF HIS EMPLOYER ACCRUING FROM
AN INTERSTATE SHIPMENT OF BANANAS.  HOLDING THAT THE INDICTMENT FAILED
TO CHARGE AN OFFENSE WITHIN SEC 660 BECAUSE IT CHARGED THAT APPELLEE
ACTED AS AN EMPLOYEE OF "AN INDIVIDUAL" WHILE SEC 660 FORBIDS THE
PROSCRIBED ACTS ONLY WHEN COMMITTED BY EMPLOYEES OF A "FIRM,
ASSOCIATION, OR CORPORATION," THE DISTRICT COURT DISMISSED THE
INDICTMENT.  ACCORD, SCHMOKEY V. UNITED STATES, 182 F.2D 937 (C.A. 10TH
CIR. 1950).  THE UNITED STATES BROUGHT A DIRECT APPEAL PURSUANT TO 18
U.S.C. SEC 3731 (1964 ED.), AND WE NOTED PROBABLE JURISDICTION, 382
U.S. 953. 

(1) "A PRESIDENT, DIRECTOR, OFFICER, OR MANAGER OF ANY FIRM,
ASSOCIATION, OR CORPORATION ENGAGED IN COMMERCE AS A COMMON CARRIER,"
OR (2) "AN EMPLOYEE OF SUCH COMMON CARRIER RIDING IN OR UPON ANY  ...
VEHICLE OF SUCH CARRIER MOVING IN INTERSTATE COMMERCE."  (FN2)  THE
PRESENT FORM OF THE STATUTE DATES FROM THE 1948 REVISION OF THE
CRIMINAL CODE.  PRIOR TO THAT TIME, THE SEPARATE GROUPS - NAMED
EXECUTIVES, AND EMPLOYEES RIDING IN VEHICLES IN COMMERCE - WERE THE
SUBJECT OF DISTINCT CRIMINAL PROVISIONS.  18 U.S.C. SEC 412 (1946 ED.),
LIKE THE PRESENT SEC 660, APPLIED TO NAMED EXECUTIVES OF "ANY FIRM,
ASSOCIATION, OR CORPORATION ENGAGED IN COMMERCE AS A COMMON CARRIER." 
(FN3)  18 U.S.C.  SEC 409(A)(5) (1946 ED.)  APPLIED TO EMPLOYEES OF
"ANY CARRIER," WITH NO EXPRESS LIMITATION RELATING TO THE FORM OF THE
EMPLOYER'S OWNERSHIP.  (FN4)  THE LEGISLATIVE HISTORY - INCLUDING A
1946 REVISION EXPANDING THE COVERAGE OF THE SECTION TO ALL MODES OF
TRANSPORTATION - AND THE PREVALENT USAGE OF THE EXPRESSION "ANY
CARRIER" IN STATUTES REGULATING COMMERCE CONVINCINGLY ESTABLISH THAT
SEC 409(A)(5) EMBRACED EMPLOYEES OF INDIVIDUAL PROPRIETORSHIPS.  AS
THIS MUCH IS CONCEDED BY APPELLEE, WE NEED NOT DETAIL THAT LEGISLATIVE
HISTORY AND COMMON USAGE HERE.  APPELLEE URGES, HOWEVER, THAT THE
PHRASE "FIRM, ASSOCIATION, OR CORPORATION" ABSORBED INTO SEC 660 FROM
THE EARLIER EXECUTIVE PROVISION, SEC 412, IS NOT SUFFICIENTLY BROAD TO
INCLUDE INDIVIDUAL PROPRIETORS; THAT THE REVISION IN 1948 THEREFORE
NARROWED THE COVERAGE OF THE EMPLOYEE PROVISION; AND THAT THIS RESULT
IS COMPELLED BY THE GENERAL CANON OF CONSTRUCTION THAT CRIMINAL
STATUTES ARE TO BE STRICTLY CONSTRUED.  THE UNITED STATES COUNTERS THAT
THE CHOICE OF THE LANGUAGE USED IN THE PREDECESSOR EXECUTIVE PROVISION,
RATHER THAN THAT IN THE PREDECESSOR EMPLOYEE PROVISION, WAS MERELY A
STYLISTIC PREFERENCE NOT EVIDENCING ANY INTENT TO NARROW COVERAGE OF
EMPLOYEE OFFENDERS AND THAT A "FIRM" MAY BE ANY BUSINESS ORGANIZATION,
WHETHER INDIVIDUALLY OWNED OR OTHERWISE. 

WE THINK THE POSITION OF THE UNITED STATES IS SOUND AND WE REVERSE
THE DISTRICT COURT.  THERE IS NO DOUBT THAT THE 1946 STATUTE COVERED
EMPLOYEES OF INDIVIDUALS AND IN OUR VIEW IT WAS NOT INTENDED BY
ADOPTING THE 1948 REVISION OF THE CODE TO MAKE ANY SUBSTANTIVE CHANGE
IN THE LAW BY EXCLUDING FROM ITS COVERAGE THE EMPLOYEES OF ANY CLASS OF
CARRIER WHO HAD BEEN PREVIOUSLY COVERED.  THE GENERAL PURPOSE OF THE
NEW CODE WAS TO "CODIFY AND REVISE  ...  .  THE ORIGINAL INTENT OF
CONGRESS IS PRESERVED," S. REP. NO. 1620, 80TH CONG., 2D SESS., P. 1,
AND WITH RESPECT TO THE NEW SEC 660, THE REVISER'S NOTE, WHILE NOTING
THE CONSOLIDATION OF A PORTION OF SEC 409 AND SEC 412 AND STATING THAT
"CHANGES WERE MADE IN PHRASEOLOGY," DISCLOSED NO INTENTION OF MAKING
ANY CHANGE IN THE SUBSTANTIVE CONTENT OR THE COVERAGE OF THE LAW.  SEE
LEGISLATIVE HISTORY NOTE FOLLOWING 18 U.S.C. SEC 660 (1964 ED.).  TO US
THE CONGRESSIONAL INTENT TO REACH THE EMPLOYEES OF ANY CARRIER,
WHATEVER THE FORM OF BUSINESS ORGANIZATION, SEEMS REASONABLY CLEAR. 

APPELLEE RELIES PRINCIPALLY UPON THE ABANDONMENT OF THE WORDS
"EMPLOYEE OF ANY CARRIER" AND THE SUBSTITUTION OF THE PRESENT LANGUAGE
OF SEC 660 WHICH DOES NOT EXPRESSLY INCLUDE THE EMPLOYEES OF "ANY
PERSON" OR "ANY INDIVIDUAL" DOING BUSINESS AS A COMMON CARRIER.  BUT
THE TERM "FIRM" IS CERTAINLY BROAD ENOUGH IN COMMON USAGE TO EMBRACE
INDIVIDUALS ACTING AS COMMON CARRIERS; (FN5) AND IN THOSE INSTANCES
WHERE CONGRESS HAS EXPLICITLY INDICATED ITS UNDERSTANDING OF THE TERM,
THE DEFINITION OF "FIRM" HAS INCLUDED INDIVIDUAL PROPRIETORSHIPS.  19
U.S.C. SEC 1806(3) (1964 ED.); 19 U.S.C. SEC 2022(L)(3) (1964 ED.,
SUPP. I).  (FN6) 

NOR HAS ANY PLAUSIBLE REASON BEEN ADVANCED FOR DRAWING A DISTINCTION
BETWEEN EMPLOYEES OF INDIVIDUALS AND EMPLOYEES OF PARTNERSHIP OR
CORPORATE COMMON CARRIERS.  THE POSSIBLE BURDEN TO INTERSTATE COMMERCE
OR THE NEED FOR FEDERAL JURISDICTION TO SUPPLEMENT STATE JURISDICTION -
IN VIEW OF THE FREQUENT DIFFICULTY OF SHOWING IN WHAT STATE THE CRIME
OCCURRED - DOES NOT VARY WITH THE FORM OF BUSINESS ORGANIZATION.  ON
THE OTHER HAND, SINCE A LARGE PORTION OF COMMON CARRIERS ARE
INDIVIDUALLY OWNED PROPRIETORSHIPS,  (FN7)  ACCEPTANCE OF APPELLEE'S
INTERPRETATION OF SEC 660 WOULD EXCLUDE A SUBSTANTIAL SEGMENT OF THE
INDUSTRY FROM THE COVERAGE OF THE ACT - A RESULT THAT SHOULD NOT BE
INFERRED FROM THE 1948 "CHANGES  ...  IN PHRASEOLOGY" WITHOUT SOME
SPECIFIC INDICATION THAT CONGRESS HAD RECEDED FROM THE INTENTION IT
CLEARLY EXPRESSED IN 1946 OF EXPANDING COVERAGE OF THE ACT TO ALL
CARRIERS.  SEE S. REP. NO. 1632, 79TH CONG., 2D SESS. 

WE ARE MINDFUL OF THE MAXIM THAT PENAL STATUTES SHOULD BE STRICTLY
CONSTRUED.  BUT THAT CANON "IS NOT AN INEXORABLE COMMAND TO OVERRIDE
COMMON SENSE AND EVIDENT STATUTORY PURPOSE," UNITED STATES V. BROWN,
333 U.S. 18, 25, AND DOES NOT "REQUIRE THAT THE ACT BE GIVEN THE
'NARROWEST MEANING.'  IT IS SUFFICIENT IF THE WORDS ARE GIVEN THEIR
FAIR MEANING IN ACCORD WITH THE EVIDENT INTENT OF CONGRESS."   UNITED
STATES V. RAYNOR, 302 U.S. 540, 552; SEE ALSO UNITED STATES V.
BRAMBLETT, 348 U.S. 503; UNITED STATES V. A&P TRUCKING CO., 358 U.S.
121; UNITED STATES V. SHIREY, 359 U.S. 255.  IN THIS CASE THE FAIR
MEANING OF THE TERM IN DISPUTE - AS EVIDENCED BY COMMON USAGE AND ITS
STATUTORY MEANING IN OTHER CONTEXTS - AND THE MANIFEST INTENTION OF
CONGRESS IN USING IT HERE LEAD US TO CONCLUDE THAT SEC 660 ENCOMPASSES
EMBEZZLEMENTS BY EMPLOYEES OF INDIVIDUAL PROPRIETORSHIPS.  REVERSED. 

FN1  "WHOEVER, BEING A PRESIDENT, DIRECTOR, OFFICER, OR MANAGER OF
ANY FIRM, ASSOCIATION, OR CORPORATION ENGAGED IN COMMERCE AS A COMMON
CARRIER, OR WHOEVER, BEING AN EMPLOYEE OF SUCH COMMON CARRIER RIDING IN
OR UPON ANY RAILROAD CAR, MOTORTRUCK, STEAMBOAT, VESSEL, AIRCRAFT OR
OTHER VEHICLE OF SUCH CARRIER MOVING IN INTERSTATE COMMERCE, EMBEZZLES,
STEALS, ABSTRACTS, OR WILLFULLY MISAPPLIES, OR WILLFULLY PERMITS TO BE
MISAPPLIED, ANY OF THE MONEYS, FUNDS, CREDITS, SECURITIES, PROPERTY, OR
ASSETS OF SUCH FIRM, ASSOCIATION, OR CORPORATION ARISING OR ACCRUING
FROM, OR USED IN, SUCH COMMERCE, IN WHOLE OR IN PART, OR WILLFULLY OR
KNOWINGLY CONVERTS THE SAME TO HIS OWN USE OR TO THE USE OF ANOTHER,
SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH."  18 U.S.C. SEC 660 (1964 ED.). 

FN2  SEE N. 1, SUPRA. 

FN3  "EVERY PRESIDENT, DIRECTOR, OFFICER, OR MANAGER OF ANY FIRM,
ASSOCIATION, OR CORPORATION ENGAGED IN COMMERCE AS A COMMON CARRIER,
WHO EMBEZZLES, STEALS, ABSTRACTS, OR WILLFULLY MISAPPLIES, OR WILLFULLY
PERMITS TO BE MISAPPLIED, ANY OF THE MONEYS, FUNDS, CREDITS,
SECURITIES, PROPERTY, OR ASSETS OF SUCH FIRM, ASSOCIATION, OR
CORPORATION ARISING OR ACCRUING FROM, OR USED IN, SUCH COMMERCE, IN
WHOLE OR IN PART, OR WILLFULLY OR KNOWINGLY CONVERTS THE SAME TO HIS
OWN USE OR TO THE USE OF ANOTHER, SHALL BE DEEMED GUILTY OF A FELONY
AND UPON CONVICTION SHALL BE FINED NOT LESS THAN $500, OR CONFINED IN
THE PENITENTIARY NOT LESS THAN ONE YEAR NOR MORE THAN TEN YEARS, OR
BOTH, IN THE DISCRETION OF THE COURT."  ACT OF OCTOBER 15, 1914, SEC 9,
38 STAT. 733, 18 U.S.C. SEC 412 (1946 ED.). 

FN4  "(A)  WHOEVER SHALL: 

     *         *        *         *         * 

"(5)  BEING AN EMPLOYEE OF ANY CARRIER RIDING IN, ON OR UPON ANY
RAILROAD CAR, MOTORTRUCK, STEAMBOAT, VESSEL, AIRCRAFT, OR OTHER VEHICLE
OF SUCH CARRIER TRANSPORTING PASSENGERS OR PROPERTY IN INTERSTATE OR
FOREIGN COMMERCE AND HAVING IN HIS CUSTODY FUNDS ARISING OUT OF OR
ACCRUING FROM SUCH TRANSPORTATION, EMBEZZLE OR UNLAWFULLY CONVERT TO
HIS OWN USE ANY SUCH FUNDS; SHALL IN EACH CASE BE FINED NOT MORE THAN
$5,000 OR IMPRISONED NOT MORE THAN TEN YEARS, OR BOTH."  ACT OF FEB.
13, 1913, 37 STAT. 670, AS AMENDED, 18 U.S.C. SEC 409(A)(5) (1946
ED.). 

FN5  SOME SOURCES DEFINE "FIRM" AS "THE PERSONS COMPOSING A
PARTNERSHIP, TAKEN COLLECTIVELY."  II BOUVIER'S LAW DICTIONARY 1232
(1914); SEE ALSO BALLENTINE'S LAW DICTIONARY 507 (2D ED. 1948); BLACK'S
LAW DICTIONARY 761-762 (4TH ED. 1951); CROWELL'S DICTIONARY OF BUSINESS
AND FINANCE 225 (REV. ED. 1930); ENCYCLOPEDIA OF BANKING AND FINANCE
238 (GARCIA, 5TH ED. 1949).  BUT OTHER DICTIONARIES, WHILE RECOGNIZING
THAT NARROW DEFINITION, ALSO STATE THAT THE WORD HAS A BROADER MEANING
IN POPULAR USAGE, CONNOTING ANY BUSINESS ENTITY, INCLUDING INDIVIDUAL
PROPRIETORSHIPS.  FOR EXAMPLE, THE STANDARD AMERICAN REFERENCE DEFINES
"FIRM" BOTH AS "A PARTNERSHIP OF TWO OR MORE PERSONS NOT RECOGNIZED AS
A LEGAL PERSON DISTINCT FROM THE MEMBERS COMPOSING IT" AND AS ANY
"BUSINESS UNIT OR ENTERPRISE."  WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY - UNABRIDGED 856 (1961).  ACCORD, CLARK & GOTTFRIED,
DICTIONARY OF BUSINESS AND FINANCE 152 (1957)("STRICTLY, AN
UNINCORPORATED BUSINESS CARRIED ON BY MORE THAN ONE PERSON, JOINTLY; A
PARTNERSHIP  ...  IN POPULAR USAGE, ANY BUSINESS, COMPANY, OR CONCERN,
INCORPORATED OR NOT."); DICTIONARY OF BUSINESS AND INDUSTRY 218
(SCHWARTZ ED. 1954)("A BUSINESS PARTNERSHIP; ANY BUSINESS HOUSE OR
ORGANIZATION, NO MATTER WHAT ITS LEGAL FORM  ...  "); DICTIONARY OF
ENGLISH LAW 807 (1959)("THE STYLE OR TITLE UNDER WHICH ONE OR SEVERAL
PERSONS CARRY ON BUSINESS"); DICTIONARY OF FOREIGN TRADE 308 (HENIUS,
2D ED. 1947)("THE NAME OR TITLE UNDER WHICH ONE OR MORE PERSONS DO
BUSINESS"). 

WHILE NUMEROUS DECISIONS OF STATE COURTS HAVE ENUNCIATED A
RESTRICTIVE DEFINITION OF "FIRM" - AND IN TURN HAVE INFLUENCED THE
DEFINITION GIVEN IN LAW DICTIONARIES, SEE THE CITATION TO FIRESTONE
TIRE & RUBBER CO. V. WEBB, 207 ARK. 820, 182 S.W.2D 941 (1944), IN
BLACK'S LAW DICTIONARY, SUPRA - SUCH DECISIONS HAVE NOT INVOLVED THE
ISSUE OF WHETHER AN INDIVIDUAL PROPRIETORSHIP MAY BE DEEMED A "FIRM." 
TYPICALLY THE QUESTION HAS BEEN WHETHER TWO OR MORE PERSONS HOLDING
THEMSELVES OUT AS A FIRM SHOULD BE HELD TO CONSTITUTE A PARTNERSHIP FOR
VARIOUS PURPOSES OF PARTNERSHIP LAW SUCH AS LIABILITY ON A PARTNERSHIP
NOTE, FIRESTONE TIRE & RUBBER CO. V. WEBB, SUPRA, IMPUTATION OF
KNOWLEDGE FROM PARTNERS TO THE PARTNERSHIP, MCCOSKER V. BANKS, 84 MD.
292, 35 A. 935 (1896), OR LIABILITY OF ONE PARTNER FOR THE ACTS OF
ANOTHER, BUFTON V. HOSELEY, 236 ORE.  12, 386 P.2D 471 (1963). 

FN6  THE TWO PROVISIONS ARE IDENTICAL AND READ AS FOLLOWS: 

"THE TERM 'FIRM' INCLUDES AN INDIVIDUAL PROPRIETORSHIP, PARTNERSHIP,
JOINT VENTURE, ASSOCIATION, CORPORATION (INCLUDING A DEVELOPMENT
CORPORATION), BUSINESS TRUST, COOPERATIVE, TRUSTEES IN BANKRUPTCY, AND
RECEIVERS UNDER DECREE OF ANY COURT  ...  ." 

FN7  A RANDOM SAMPLING OF 1,500 OF 11,700 ICC-CERTIFICATED CLASS III
MOTOR CARRIERS OF PROPERTY (I.E., THOSE WITH AN ANNUAL REVENUE OF LESS
THAN $200,000) SHOWED THAT AT THE END OF 1964 ALMOST 40% WERE
INDIVIDUALLY OWNED AND OPERATED.  ABOUT 1% OPERATED IN PARTNERSHIP
FORM, AND THE REMAINDER OPERATED AS CORPORATIONS.  BRIEF OF UNITED
STATES 13, N. 8. 
..END :










REDMOND V. UNITED STATES 384 U.S. 264 


NO. 1056.  DECIDED MAY 23, 1966.  - CERTIORARI GRANTED; 355 F.2D 446,
VACATED AND REMANDED TO THE DISTRICT COURT. 


SOLICITOR GENERAL'S MOTION TO VACATE AND REMAND WITH INSTRUCTIONS TO
DISMISS INFORMATION GRANTED, BASED ON GROUND THAT FEDERAL OBSCENITY
STATUTE VIOLATION CHARGED AGAINST PETITIONERS, A MARRIED COUPLE WHO
SENT ALLEGEDLY OBSCENE PRIVATE CORRESPONDENCE THROUGH THE MAIL IN
CIRCUMSTANCES WHICH WERE NOT AGGRAVATED, CONTRAVENED GOVERNMENT'S
PROSECUTORIAL POLICY. 

REDMOND ET UX. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED.  THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT AFFIRMED THE CONVICTION OF PETITIONERS, HUSBAND AND WIFE,
UNDER AN INFORMATION CHARGING THEM WITH VIOLATING THE FEDERAL OBSCENITY
STATUTE, 18 U.S.C. SEC 1461 (1964 ED.), BY HAVING MAILED UNDEVELOPED
FILMS OF EACH OTHER POSING IN THE NUDE TO AN OUT-OF-STATE FIRM FOR
DEVELOPING, AND HAVING RECEIVED THROUGH THE MAILS THE DEVELOPED
NEGATIVES AND A PRINT OF EACH. 

IN RESPONSE TO THE CERTIORARI PETITION, THE SOLICITOR GENERAL HAS
FILED A MOTION REQUESTING THAT THE JUDGMENT OF THE COURT OF APPEALS FOR
THE SIXTH CIRCUIT BE VACATED AND THE CAUSE REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS TO DISMISS THE INFORMATION.  THE GROUND OF THE
MOTION IS THAT "THE INITIATION OF THE INSTANT PROSECUTION WAS NOT IN
ACCORD WITH POLICIES WHICH HAD PREVIOUSLY BEEN FORMULATED WITHIN THE
DEPARTMENT OF JUSTICE FOR THE GUIDANCE OF UNITED STATES ATTORNEYS." 
THE POLICIES REFERRED TO ARE SET FORTH IN A MEMORANDUM TO UNITED STATES
ATTORNEYS, DATED AUGUST 31, 1964.  THE MEMORANDUM STATES, IN PERTINENT
PART, THAT PROSECUTION FOR MAILING PRIVATE CORRESPONDENCE WHICH IS
ALLEGEDLY OBSCENE "SHOULD BE THE EXCEPTION CONFINED TO THOSE CASES
INVOLVING REPEATED OFFENDERS OR OTHER CIRCUMSTANCES WHICH MAY FAIRLY BE
CHARACTERIZED AS AGGRAVATED."  THE SOLICITOR GENERAL STATES THAT THERE
ARE NO SUCH EXCEPTIONAL CIRCUMSTANCES WARRANTING A PROSECUTION OF
PETITIONERS:  "THEY WERE NOT REPEATED OFFENDERS.  THEY HAD NO RECORD OF
INVOLVEMENT WITH OBSCENE MATERIALS OR SEX-RELATED OFFENSES AND NO
APPARENT OPPORTUNITY FOR CLOSE ASSOCIATION WITH YOUNG PEOPLE.  NO OTHER
AGGRAVATING CIRCUMSTANCE APPEARS TO BE PRESENT." 

IN CONSIDERATION OF THE PREMISES AND UPON AN INDEPENDENT EXAMINATION
OF THE RECORD FILED IN THIS COURT, THE MOTION IS GRANTED.  THE JUDGMENT
OF THE COURT OF APPEALS IS ACCORDINGLY VACATED, THE CAUSE IS REMANDED
TO THE DISTRICT COURT, AND THAT COURT IS DIRECTED TO DISMISS THE
INFORMATION.  SEE PETITE V. UNITED STATES, 361 U.S. 529.  IT IS SO
ORDERED. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS CONCUR, WOULD REVERSE THIS CONVICTION, NOT BECAUSE IT VIOLATES
THE POLICY OF THE JUSTICE DEPARTMENT, BUT BECAUSE IT VIOLATES THE
CONSTITUTION. 
..END :
















VENABLE V. TEXAS 384 U.S. 266 


NO. 1196.  DECIDED MAY 23, 1966.  - 397 S.W.2D 231, APPEAL DISMISSED AND
CERTIORARI DENIED. 


VENABLE V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WYLAN V. CALIFORNIA 384 U.S. 266 


NO. 991.  DECIDED MAY 23, 1966.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


WYLAN V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE HARLAN ARE OF
THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :












RUTHERFORD V. WASHINGTON 384 U.S. 267 


NO. 1167.  DECIDED MAY 23, 1966.  - 66 WASH. 2D 851, 405 P.2D 719,
APPEAL DISMISSED AND CERTIORARI DENIED. 


RUTHERFORD V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















DAY V. UNITED STATES 384 U.S. 267 


NO. 1086.  DECIDED MAY 23, 1966.  - 246 F. SUPP. 689, AFFIRMED. 


DAY ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















LIFE ASSURANCE CO. OF PENNSYLVANIA V. PENNSYLVANIA 384 U.S. 268 


NO. 1152.  DECIDED MAY 23, 1966.  - 419 PA. 370.  214 A.2D 209, APPEAL
DISMISSED. 


LIFE ASSURANCE CO. OF PENNSYLVANIA V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














COLONIAL PIPELINE CO. V. VIRGINIA 384 U.S. 268 


NO. 985.  DECIDED MAY 23, 1966.  - 206 VA. 517, 145 S.E.2D 227, APPEAL
DISMISSED. 


COLONIAL PIPELINE CO. V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















GREER V. BETO 384 U.S. 269 


NO. 720, MISC.  DECIDED MAY 23, 1966.  - CERTIORARI GRANTED; REVERSED. 


GREER V. BETO, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF TEXAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
GIDEON V. WAINWRIGHT, 372 U.S. 335; DOUGHTY V. MAXWELL, 376 U.S. 202;
SEE GARNER V. PENNSYLVANIA, 372 U.S. 768; UNITED STATES EX REL.
DUROCHER V. LAVALLEE, 330 F.2D 303 (C.A.2D CIR.). 

MR. JUSTICE HARLAN WOULD SET THE CASE FOR ARGUMENT, BELIEVING THAT
THE RETROACTIVITY OF GIDEON V. WAINWRIGHT, 372 U.S. 335, AS APPLIED IN
A RECIDIVIST CASE, PRESENTS PROBLEMS OF ITS OWN THAT ARE DESERVING OF
PLENARY CONSIDERATION. 
..END :









AMELL V. U.S. 384 U.S. 158 


NO. 282.  ARGUED JANUARY 24, 1966.  - DECIDED MAY 16, 1966.  - 170 CT.
CL. 898, REVERSED AND REMANDED. 


PETITIONERS, FEDERAL EMPLOYEES WORKING ABOARD GOVERNMENT VESSELS,
FILED ACTIONS FOR WAGES IN THE COURT OF CLAIMS, PREDICATING
JURISDICTION ON THE TUCKER ACT, WHICH PERMITS SUITS IN THAT COURT ON
CONTRACTUAL CLAIMS AGAINST THE GOVERNMENT AND HAS A SIX-YEAR STATUTE OF
LIMITATIONS.  THE COURT OF CLAIMS GRANTED RESPONDENT'S MOTION TO
TRANSFER THE ACTIONS TO VARIOUS FEDERAL DISTRICT COURTS ON THE GROUND
THAT THE CLAIMS WERE MARITIME IN NATURE AND JUSTICIABLE SOLELY UNDER
THE SUITS IN ADMIRALTY ACT, WITH A TWO-YEAR STATUTE OF LIMITATIONS. 
HELD: 

1.  AS DEMONSTRATED BY STATUTES CONCERNING WAGES OF OTHER GOVERNMENT
EMPLOYEES, CONGRESS HAS TRADITIONALLY TREATED EMPLOYEES LIKE
PETITIONERS AS PUBLIC SERVANTS RATHER THAN AS SEAMEN.  PP. 161-163. 

2.  WHILE THE SUITS IN ADMIRALTY ACT WAS ENACTED AFTER THE TUCKER ACT
AND WOULD REPEAL THE LATTER IN CASE OF CONFLICT, THE JURISDICTION OF
THE COURT OF CLAIMS OVER SUITS SUCH AS THESE WAS UNCHALLENGED AT LEAST
UNTIL 1960 AND, IN AMENDING BOTH STATUTES THEN, CONGRESS DID NOT
INDICATE THAT IT WISHED TO DEPRIVE GOVERNMENT-EMPLOYED CLAIMANTS OF
THEIR RIGHTS UNDER THE TUCKER ACT.  PP. 163-165. 

AMELL ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE CASE BEFORE US PRESENTS INTERESTING PROBLEMS OF A JURISDICTIONAL
NATURE.  THE SUITS IN ADMIRALTY ACT  (FN1) VESTS EXCLUSIVE JURISDICTION
IN THE DISTRICT COURTS WHEN THE SUIT IS OF A MARITIME NATURE.  UNDER
THE TUCKER ACT,  (FN2) THE COURT OF CLAIMS HAS JURISDICTION OVER
CONTRACTUAL CLAIMS AGAINST THE UNITED STATES.  THE JURISDICTIONAL
INTERACTION PRESENTS ITSELF HERE. 

THE PETITIONERS ARE EMPLOYEES OF VARIOUS FEDERAL EXECUTIVE
DEPARTMENTS WORKING ABOARD GOVERNMENT VESSELS.  THEY FILED CONTRACTUAL
ACTIONS IN THE COURT OF CLAIMS, ALLEGING THEY WERE ENTITLED TO BACK PAY
INCREASES AND OVERTIME PAY FOR THEIR LABORS, INVOKING VARIOUS FEDERAL
PAY STATUTES AND REGULATIONS.  IN ALL THESE SUITS, THE PETITIONERS
PREDICATED JURISDICTION ON THE TUCKER ACT, WHICH HAS A GENEROUS SIX
YEAR LIMITATIONS PERIOD AND PROVIDES A GRACE PERIOD AS WELL, 28 U.S.C.
SEC 2501 (1964 ED.).  THEIR EMPLOYER, THE UNITED STATES, FILED MOTIONS
TO HAVE THE ACTIONS TRANSFERRED TO VARIOUS FEDERAL DISTRICT COURTS ON
THE GROUND THAT THE CLAIMS WERE OF A MARITIME NATURE AND JUSTICIABLE
EXCLUSIVELY UNDER THE SUITS IN ADMIRALTY ACT.  THIS ACT PROVIDES ONLY
TWO YEARS FOR CLAIMANTS TO FILE SUIT, AND ALSO REQUIRES EXHAUSTION OF
ADMINISTRATIVE REMEDIES, 46 U.S.C. SEC 745 (1964 ED.).  THE COURT OF
CLAIMS GRANTED THE MOTIONS WITHOUT OPINION, SIMPLY CITING TO THREE
UNREPORTED CASES IN WHICH IT HAD MADE SIMILAR DISPOSITIONS.  TO UPHOLD
THIS TRANSFER WOULD BAR THOSE CLAIMS WHICH ACCRUED MORE THAN TWO YEARS
PRIOR TO THE TIME THE ACTIONS WERE FILED.  WE GRANTED CERTIORARI, 382
U.S. 810, AND REVERSE. 

ON ITS FACE, THE TUCKER ACT PERMITS ALL INDIVIDUALS WITH CONTRACTUAL
CLAIMS AGAINST THE GOVERNMENT TO SUE IN THE COURT OF CLAIMS.  THE SUITS
IN ADMIRALTY ACT SIMILARLY AFFORDS AN OPEN BERTH IN THE DISTRICT
COURTS, PROVIDED THE CLAIMS ARE OF A MARITIME NATURE.  THE QUESTION IS
WHICH ACT SHOULD BE APPLICABLE TO THE CLAIMS BROUGHT HERE, AND THIS IN
TURN DEPENDS ON WHETHER THESE SEAFARING PETITIONERS ARE MORE
APPROPRIATELY CLASSIFIED AS FEDERAL WORKERS OR AS MERE SEAMEN. 

THE GOVERNMENT TAKES THE POSITION THAT THESE EMPLOYEES ARE TO BE
DEPRIVED OF THE LIBERAL BENEFITS OF THE LONGER LIMITATIONS PERIOD
AVAILABLE TO ALL OTHER GOVERNMENT EMPLOYEES UNDER THE TUCKER ACT.  THIS
IS SO, THE GOVERNMENT REASONS, BECAUSE FOR PURPOSE OF WAGE CLAIMS THE
PETITIONERS' STATUS AS SEAMEN OVERRIDES THEIR ACKNOWLEDGED ROLE AS
FEDERAL WORKERS.  IN ASSUMING THIS POSTURE, THE GOVERNMENT SEEKS THE
BEST OF BOTH WORLDS.  CONGRESS IS DEPICTED AS AMBIVALENT IN TREATING
THESE PETITIONERS EITHER AS SEAMEN OR AS FEDERAL EMPLOYEES DEPENDING ON
WHICH STATUS MAY REDOUND MORE TO THE BENEFIT OF THE GOVERNMENT'S
PROPRIETARY INTEREST. 

THE GOVERNMENT ACKNOWLEDGES THAT THE PETITIONERS ARE GOVERNED BY A
PATCHWORK PATTERN OF FEDERAL STATUTES WHICH ENCOMPASS MANY FACETS OF
THEIR ECONOMIC WELFARE.  WITH REGARD TO SO-CALLED FRINGE BENEFITS,
PERVASIVE GOVERNMENT SCHEMES PROVIDE FOR SICK LEAVE AND VACATION PAY,
(FN3) AND FOR DEATH, HEALTH, MEDICAL AND PENSION PROGRAMS.  (FN4)  THE
PETITIONERS' POTENTIAL RECOVERY FOR PERSONAL INJURIES IS LIMITED
STRICTLY BY A WORKMEN'S COMPENSATION STATUTE GOVERNING THEM AS FEDERAL
WORKERS TO THE EXCLUSION OF BOTH THE PUBLIC VESSELS ACT,  (FN5)
JOHANSEN V. UNITED STATES, 343 U.S. 427, AND THE SUITS IN ADMIRALTY
ACT, PATTERSON V. UNITED STATES, 359 U.S. 495.  BY VIRTUE OF THEIR
GOVERNMENTAL EMPLOYMENT, THE PETITIONERS' RIGHTS TO JOIN UNIONS AND TO
SELECT BARGAINING REPRESENTATIVES, UNLIKE THAT OF PRIVATE SEAMEN,
EXISTS ONLY BY EXPRESS LEAVE OF THE PRESIDENT, EXEC. ORDER NO. 10988,
27 FED. REG. 551 (1962), AND THEY ARE FORBIDDEN, UNDER PAIN OF
DISCHARGE, FINE AND IMPRISONMENT, FROM EXERCISING OR ASSERTING THE
RIGHT TO STRIKE, 69 STAT. 624, U.S.C. SECS 118P-118R (1964 ED.). 

WHEN IT COMES TO WAGE CLAIMS THE GOVERNMENT TREATS THE PETITIONERS,
TO THEIR DETRIMENT, AS SEAMEN.  THE WORKERS, HOWEVER, HAVE THEIR WAGES
FIXED BY FEDERAL STATUTES AND REGULATIONS, LIKE OTHER FEDERAL
EMPLOYEES.  IT IS TRUE THAT THEIR RATES OF PAY ARE GEARED TO THE
PREVAILING WAGE SCALE IN PRIVATE SHIPPING OPERATIONS, (FN6) BUT THIS
FACTOR DIMINISHES UPON ANALYSIS.  A HOST OF FEDERAL WORKERS, LIKE THESE
SEAMEN, HAVE THEIR RATES OF PAY SO ADJUSTED.  (FN7)  THE PETITIONERS,
THEN, ARE ESSENTIALLY NO DIFFERENT FROM CIVIL SERVANTS WHO DELIVER THE
MAIL, FIGHT FOREST FIRES, CONSTRUCT PUBLIC BUILDINGS, OR WHO ENGAGE IN
COUNTLESS OTHER TASKS WHICH AFFECT VIRTUALLY EVERY PHASE OF THE
COUNTRY'S WELL-BEING.  THE WAGE SCALE OF GOVERNMENT-EMPLOYED SEAMEN IS
FIXED BY FEDERAL AGENCIES; IT IS NOT AUTOMATICALLY ADJUSTED TO THE RATE
OF PAY PREVALENT IN PRIVATE INDUSTRY, AND IN SOME CASES THE PRIVATE PAY
RATES ARE NOT EASILY ASCERTAINED.  FURTHER, THESE GOVERNMENT EMPLOYEES
UNLIKE NORMAL SEAMEN - BENEFIT FROM WAGE PAY INCREASES WON IN THE
PRIVATE INDUSTRY ONLY PROSPECTIVELY AND TO A LIMITED DEGREE.  OFTEN IN
THE MARITIME INDUSTRY, PRIVATE CONTRACT NEGOTIATIONS CONTINUE BEYOND
THE TERMINAL DATE SET IN A COLLECTIVE BARGAINING AGREEMENT.  WHEN THE
AGREEMENT IS SIGNED, HOWEVER, IT GENERALLY PROVIDES THAT THE PRIVATE
SEAMEN RECEIVE THE INCREASED PAY RETROACTIVELY.  THE GOVERNMENT SEAMEN
RECEIVE PAY INCREASES ONLY FROM THE ACTUAL DATE AGREEMENT IS REACHED IN
THE PRIVATE SECTOR.  THEREFORE, THE BACK PAY CLAIMS ARE MORE
APPROPRIATELY CATALOGUED ON THE GOVERNMENT SIDE OF THE LEDGER, ALTHOUGH
THEY MAY HAVE A SALTY TANG. 

THIS INFERENCE AS TO CONGRESSIONAL INTENT IS REINFORCED IN
CONSIDERING THE CLAIMS FOR OVERTIME PAY.  HERE THERE IS A SPECIFIC
PROVISION - SECTION 205 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (FN8)
WHICH FIXES THE RATIO OF OVERTIME PAY TO THE EMPLOYEES' BASIC PAY. 
CONGRESS HAS THUS EXPLICITLY PRESCRIBED THAT OVERTIME PAY SHOULD BE
FIXED IN A UNIFORM MANNER FOR ALL GOVERNMENT WAGE-BOARD EMPLOYEES,
WHETHER SEAMEN OR NOT.  FURTHERMORE, IN DETERMINING THE APPLICABILITY
OF THIS UNIFORM STATUTORY REQUIREMENT, THE COURT WILL BE INTERPRETING
THE PAY REGULATION OF AN EXECUTIVE DEPARTMENT.  THIS TASK IS TYPICALLY
WITHIN THE PROVINCE AND EXPERTISE OF THE COURT OF CLAIMS. 

WE THINK THE FOREGOING INDICATES THAT WITH RESPECT TO THESE WAGE
CLAIMS, CONGRESS THOUGHT OF THESE PETITIONERS MORE AS GOVERNMENT
EMPLOYEES WHO HAPPENED TO BE SEAMEN THAN AS SEAMEN WHO BY CHANCE WORKED
FOR THE GOVERNMENT.  THE REMAINING PROBLEMS RELATE TO SPECIFIC
LEGISLATIVE AMENDMENTS.  THE GOVERNMENT APPROACHES THIS BY NOTING THAT
THE SUITS IN ADMIRALTY ACT SPECIFICALLY REPEALED THE TUCKER ACT SO FAR
AS THE TWO CONFLICTED.  THIS MAY READILY BE CONCEDED, SEE E.G., CALMAR
S.S. CORP. V. UNITED STATES, 345 U.S. 446, 455-456; MATSON NAVIGATION
CO. V. UNITED STATES, 284 U.S. 352.  COMPARE PATTERSON V. UNITED
STATES, 359 U.S. 495.  FROM THIS PROPOSITION IT ADDUCES THE PRINCIPLE
THAT EXCLUSIVE ADMIRALTY JURISDICTION IS NOW SO DEEPLY WOVEN IN THE
FABRIC OF THE LAW THAT CONGRESSIONAL ACTION IS REQUIRED TO OVERTURN IT,
CF. STATE BD. OF INS. V. TODD SHIPYARDS, 370 U.S. 451, 458.  THIS
PRINCIPLE IS SOUND WHERE APPLICABLE, BUT SUCH IS NOT THE CASE HERE. 

THE EVOLUTION OF THE LAW, BOTH STATUTORY AND JUDICIAL, INDICATES THAT
AT LEAST UNTIL 1960, THE JURISDICTION OF THE COURT OF CLAIMS OVER
GOVERNMENT SEAMEN'S WAGE CLAIMS WAS UNCHALLENGED.  WE DO NOT UNDERSTAND
THE GOVERNMENT TO DISPUTE THIS FACT.  FOR EXAMPLE, WAGE CLAIMS BY
FEDERAL EMPLOYEES WERE FOUND TO BE EXPRESSLY WITHIN THE AMBIT OF THE
TUCKER ACT IN BRUNER V. UNITED STATES, 343 U.S. 112, 115.  IN UNITED
STATES V. TOWNSLEY, 323 U.S. 557, THIS COURT AFFIRMED A JUDGMENT
AGAINST THE GOVERNMENT FOR OVERTIME WAGES IN FAVOR OF A GOVERNMENT
EMPLOYED OPERATOR OF A DREDGE.  THE COURT OF CLAIMS HAD ASSUMED
JURISDICTION OVER THE SUIT, 101 CT. CL. 237, AND THE GOVERNMENT NEVER
DISPUTED THE ISSUE.  SUBSEQUENT CASES ARE TO THE SAME EFFECT.  (FN9)
IT WAS ON THIS LINE OF PRECENDENT THAT THE PETITIONERS RELIED IN
BRINGING SUIT.  THIS FACT IS WORTHY OF MENTION TO ILLUSTRATE THE IMPACT
UPON CLAIMANTS WHOSE SUITS WOULD OTHERWISE BE TIME-BARRED IF WE WERE
NOW TO HOLD THAT THE SUITS IN ADMIRALTY ACT RESTRICTED ALL SUITS IN
CASES LIKE THE PRESENT TO THE DISTRICT COURTS, CF. BRADY V. ROOSEVELT
S.S. CO., 317 U.S. 575, 581. 

IN 1960, CONGRESS ADDRESSED ITSELF TO THE JURISDICTIONAL OVERLAP
BETWEEN THE TUCKER ACT AND THE SUITS IN ADMIRALTY ACT.  ITS MAJOR AIM
WAS TO EMPOWER THE COURT OF CLAIMS TO TRANSFER SUITS TO THE DISTRICT
COURTS WHEN THE LATTER HAD EXCLUSIVE JURISDICTION OVER THEM.  THIS IT
ACCOMPLISHED BY PROVIDING THAT WHEN THE TRANSFER WAS MADE, THE ORIGINAL
FILING IN THE COURT OF CLAIMS WOULD TOLL THE APPLICABLE LIMITATIONS
PERIOD, ACT OF SEPT. 13, 1960, PUB. L. 86-770, 74 STAT. 912, 28 U.S.C.
SEC 1506.  SIMULTANEOUSLY, CONGRESS ABOLISHED THE DISTINCTION BETWEEN
PUBLIC AND MERCHANT VESSELS, A MATTER WHICH HAD SORELY CONFUSED
ATTORNEYS AND HAD CAUSED MISFILINGS IN THE PAST, S. REP. NO. 1894, 86TH
CONG., 2D SESS., PP. 3, 6.  IN AMENDING THE SUITS IN ADMIRALTY ACT,
CONGRESS ALSO WANTED TO AFFIRM THE EXISTING LAW THAT SUITS WHICH WERE
JUSTICIABLE EXCLUSIVELY UNDER IT WOULD BE BROUGHT ONLY IN THE DISTRICT
COURTS.  THE NEW SEC 2 OF THE ACT, 46 U.S.C. SEC 742, IN THE WORDS OF
THE SENATE REPORT, S. REP. NO. 1894, SUPRA, AT P. 2: 

"RESTATES IN BRIEF AND SIMPLE LANGUAGE THE NOW EXISTING EXCLUSIVE
JURISDICTION CONFERRED ON THE DISTRICT COURTS, BOTH ON THEIR ADMIRALTY
AND LAW SIDES, OVER CASES AGAINST THE UNITED STATES WHICH COULD BE SUED
ON IN ADMIRALTY IF PRIVATE VESSELS, PERSONS, OR PROPERTY WERE
INVOLVED."  (FN10) 

THE GOVERNMENT WOULD HAVE US BELIEVE THAT THIS OBLIQUE REFERENCE TO
PRIVATE "PERSONS" WAS DESIGNED TO MAKE INROADS TO THE RIGHT OF
GOVERNMENT EMPLOYEES TO SUE IN THE COURT OF CLAIMS.  WE REJECT THIS
ARGUMENT.  THE LEGISLATIVE HISTORY SURROUNDING THIS ENACTMENT CONTAINS
NO DISCUSSION WHATEVER CONCERNING CLAIMS BROUGHT BY GOVERNMENT-EMPLOYED
SEAMEN.  THIS IS HIGHLY SIGNIFICANT BECAUSE OF THE ACTIVE INTEREST IN
NAUTICAL LEGISLATION GENERALLY TAKEN BY THE MARITIME LABOR UNIONS.  IF
CONGRESS HAD MEANT TO LOWER THE LIMITATIONS PERIOD FROM SIX TO TWO
YEARS, SURELY THESE UNIONS WOULD HAVE BEEN PRIVY TO THE DECISION; THIS
IS ALL THE MORE TRUE WHEN ONE CONSIDERS THAT SEAMEN ARE OFTEN STATIONED
FAR AWAY FROM THEIR HOME PORTS AND NEED A LENGTHY PERIOD IN WHICH TO
REGISTER THEIR CLAIMS.  IF THEY WERE GOVERNED BY THE MARITIME ACT, THEY
WOULD BE REQUIRED NOT ONLY TO SUE BUT TO EXHAUST ADMINISTRATIVE
REMEDIES AS WELL WITHIN THE SHORTER PERIOD, 46 U.S.C. SEC 745 (1964
ED.). 

IN EFFECT, THE GOVERNMENT ASKS US TO REPEAL THE FORMER PRACTICE BY
IMPLICATION.  WE HAVE HELD IN NUMEROUS CASES THAT SUCH A REQUEST BEARS
A HEAVY BURDEN OF PERSUASION, E.G., BULOVA WATCH CO. V. UNITED STATES,
365 U.S. 753, 758; FOURCO GLASS CO. V. TRANSMIRRA CORP., 353 U.S. 222,
228-229.  FURTHER CONGRESS HAD THE OPPORTUNITY IN 1964 TO DEPRIVE
GOVERNMENT-EMPLOYED CLAIMANTS OF THEIR RIGHTS WHEN IT AMENDED THE
TUCKER ACT ITSELF.  INSTEAD, CONGRESS BROADENED THE FORUMS AVAILABLE TO
PLAINTIFFS SUING THE GOVERNMENT FOR FEES, SALARY OR COMPENSATION FOR
OFFICIAL SERVICES, GIVING THE DISTRICT COURTS CONCURRENT JURISDICTION
WITH THE COURT OF CLAIMS IN MATTERS OF LESS THAN $10,000, 78 STAT. 699,
28 U.S.C. SEC 1346(D) (1964 ED.). 

AS IN OTHER JURISDICTIONAL QUESTIONS INVOLVING INTERSECTING STATUTES,
THERE IS NO POSITIVE ANSWER.  WE CAN DO NO MORE THAN TO EXERCISE OUR
BEST JUDGMENT IN INTERPRETING THE WILL OF CONGRESS.  IN THIS INSTANCE,
WE BELIEVE THE TRADITIONAL TREATMENT OF FEDERAL EMPLOYEES BY THE
GOVERNMENT TIPS THE BALANCE IN FAVOR OF COURT OF CLAIMS JURISDICTION. 
THE COURT OF CLAIMS POSSESSES THE EXPERTISE NECESSARY TO ADJUDICATE
GOVERNMENT WAGE CLAIMS.  IT ALSO SERVES AS A CENTRALIZED FORUM FOR
DEVELOPING THE LAW, PARTICULARLY IN LARGE WAGE CLAIM SUITS.  THESE
TASKS HAVE BEEN ITS RESPONSIBILITY SINCE 1887.  IN MULTI-PARTY WAGE
SUITS OF LARGE AMOUNTS, HAVING ONE FORUM ELIMINATES ANY PROBLEM OF
TRANSFERRING VENUE FROM SEVERAL DISTRICT COURTS TO ONE LOCALE, SEE 28
U.S.C. SEC 1406 (1964 ED.).  IF WE ARE HERE MISCONSTRUING THE INTENT OF
CONGRESS, IT CAN EASILY SET THE MATTER TO REST BY EXPLICIT LANGUAGE. 
WE THEREFORE REVERSE AND REMAND THE SUITS TO THE COURT OF CLAIMS FOR
FURTHER PROCEEDINGS.  IT IS SO ORDERED. 

FN1  41 STAT. 525, AS AMENDED, 46 U.S.C. SECS 741-752 (1964 ED.). 

FN2  24 STAT. 505, AS AMENDED, 28 U.S.C. SECS 1346, 1491 (1964 ED.). 

FN3  ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, AS AMENDED, 5
U.S.C. SECS 2061-2066 (1964 ED.). 

FN4  FEDERAL EMPLOYEES' GROUP LIFE INSURANCE ACT OF 1954, 68 STAT.
736, AS AMENDED, 5 U.S.C.  SECS 2091-2103 (1964 ED.); CIVIL SERVICE
RETIREMENT ACT, 70 STAT. 743, AS AMENDED, 5 U.S.C.  SECS 2251-2267
(1964 ED.); FEDERAL EMPLOYEES HEALTH BENEFITS ACT OF 1959, 73 STAT.
708, 5 U.S.C. SECS 3001-3014 (1964 ED.). 

FN5  43 STAT. 1112, AS AMENDED, 46 U.S.C. SECS 781-790 (1964 ED.). 

FN6  SECTION 202(8) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954,
AS AMENDED, 5 U.S.C.  SEC 1082(8) (1964 ED.), PROVIDES IN SUBSTANCE
THAT WORKERS ON VESSELS SHALL HAVE THEIR COMPENSATION FIXED AND
ADJUSTED BY FEDERAL AGENCIES SO FAR AS CONSISTENT WITH THE PUBLIC
INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE
MARITIME INDUSTRY.    FN7  IN 1962, CONGRESS ENACTED THE FEDERAL SALARY
REFORM ACT, MAKING AN EXPLICIT DECLARATION OF POLICY THAT FEDERAL
SALARY FIXING SHOULD BE COMPARABLE TO PRIVATE ENTERPRISE SALARY RATES
FOR THE SAME LEVELS OF WORK, ACT OF OCT. 11, 1962, PUB. L. 87-793, 76
STAT. 841, 5 U.S.C.  SECS 1171-1174 (1964 ED.).  PURSUANT TO
CONGRESSIONAL DIRECTION, THE PRESIDENT ISSUED AN EXECUTIVE ORDER, EXEC.
ORDER NO. 11173, AUG. 20, 1964, 29 FED. REG. 11999, TAKING FULL
COGNIZANCE OF THE CONGRESSIONAL POLICY ENUNCIATED IN THE FEDERAL SALARY
REFORM ACT OF 1962.  SO FAR AS DETERMINING THE COMPENSATION FOR WAGE
BOARD EMPLOYEES, AS ARE THESE PETITIONERS, CONGRESS HAS EVINCED A
SIMILAR CONCERN, PUB. L. 85-872, 72 STAT. 1696, 5 U.S.C. SECS 1181-1184
(1964 ED.).  THUS, THE WHOLE TREND IN GOVERNMENT COMPENSATION IS TO
DRAW INDIVIDUALS INTO PUBLIC SERVICE BY PROVIDING SALARIES AT LEAST
COMPARABLE TO THOSE THEY WOULD EARN ON ENTERING PRIVATE INDUSTRY. 

FN8 59 STAT. 295, 5 U.S.C. SEC 913 (1964 ED.)., PROVIDES: 

"EMPLOYEES WHOSE BASIC RATE OF COMPENSATION IS FIXED ON AN ANNUAL OR
MONTHLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH
PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY
SERVING THE SAME PURPOSE SHALL BE ENTITLED TO OVERTIME PAY IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 673C OF THIS TITLE.  THE RATE
OF COMPENSATION FOR EACH HOUR OF OVERTIME EMPLOYMENT OF ANY SUCH
EMPLOYEE SHALL BE COMPUTED AS FOLLOWS:  ...  ." 

THIS PROVISION, AS DOES 5 U.S.C. SEC 673C (1964 ED.), GIVES
GOVERNMENT-EMPLOYED SEAMEN ONE AND ONE-HALF TIMES THEIR BASIC PAY FOR
OVERTIME PAY. 

FN9  SEE, E.G., HEARNE V. UNITED STATES, 107 CT. CL. 335, 68 F. SUPP.
786, CERT. DENIED, 331 U.S. 858; ADAMS V. UNITED STATES, 141 CT. CL.
133; ABBOTT V. UNITED STATES, 144 CT. CL.  712, 169 F. SUPP. 523.  SEE
ALSO CONTINENTAL CASUALTY CO. V. UNITED STATES, 140 CT. CL. 500, 156 F.
SUPP. 942. 

FN10  AS AMENDED, 46 U.S.C. SEC 742 NOW PROVIDES IN PERTINENT PART: 

"IN CASES WHERE IF SUCH VESSEL OWNED BY THE UNITED STATES WERE
PRIVATELY OWNED OR OPERATED, OR IF SUCH CARGO WERE PRIVATELY OWNED OR
POSSESSED, OR IF A PRIVATE PERSON OR PROPERTY WERE INVOLVED, A
PROCEEDING IN ADMIRALTY COULD BE MAINTAINED, ANY APPROPRIATE NONJURY
PROCEEDING IN PERSONAM MAY BE BROUGHT AGAINST THE UNITED STATES  ...  .
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  ...  ." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

IN MY OPINION A COURSE OF LEGAL HISTORY, REFLECTING BOTH DECISIONS OF
THIS COURT AND CONGRESSIONAL ENACTMENTS, PRECLUDES THE INTERPRETATION
THAT IS NOW PLACED ON THE SUITS IN ADMIRALTY ACT, 41 STAT. 525, AS
AMENDED, 46 U.S.C. SEC 741 ET SEQ. (1964 ED.). 

I. 

THE SUITS IN ADMIRALTY ACT WAS ENACTED IN 1920 TO DEAL WITH PROBLEMS
CREATED BY THE FORMATION OF A LARGE GOVERNMENT-OWNED MERCHANT FLEET
DURING WORLD WAR I. THE ACT ESTABLISHED A METHOD TO SUE THE UNITED
STATES IN ADMIRALTY THAT WOULD PROTECT THE INTERESTS OF LIBELLANTS
WHILE AT THE SAME TIME PREVENT IN REM ATTACHMENTS OF GOVERNMENT VESSELS
DURING A POSSIBLE EMERGENCY.  SEE S. REP. NO. 223, 66TH CONG., 1ST
SESS. (1919); H.R. REP. NO. 497, 66TH CONG., 2D SESS.  (1919); 58 CONG.
REC. 7317 (1919); 59 CONG. REC.  1684-1688 (1920).  ALTHOUGH THE
CREATION OF THIS STATUTORY PROCEDURE FOR SUITS IN ADMIRALTY WAS
OCCASIONED BY PARTICULAR NEEDS, THE EARLY CASES, DISCUSSED BELOW, HELD
UNMISTAKABLY, FIRST, THAT THE ACT PROVIDED THE EXCLUSIVE ADMIRALTY
REMEDY AGAINST THE UNITED STATES, AND, SECOND, THAT IT WAS EXCLUSIVE OF
ALL OTHER REMEDIES AFFORDING RELIEF FOR AN UNDERLYING CLAIM COGNIZABLE
IN ADMIRALTY. 

THE SUITS IN ADMIRALTY ACT PROVIDES THE PROCEDURE FOR SUITS AGAINST
THE UNITED STATES OR A GOVERNMENT-OWNED CORPORATION "IN CASES WHERE IF
SUCH VESSEL WERE PRIVATELY OWNED OR OPERATED, OR IF SUCH CARGO WERE
PRIVATELY OWNED OR POSSESSED, OR IF A PRIVATE PERSON OR PROPERTY WERE
INVOLVED, A PROCEEDING IN ADMIRALTY COULD BE MAINTAINED  ...  ."  46
U.S.C.  SEC 742.  A NARROW CONSTRUCTION OF THE STATUTE WAS UNANIMOUSLY
REJECTED IN EASTERN TRANSP.  CO. V. UNITED STATES, 272 U.S. 675, WHERE
THE COURT HELD THAT THE ACT MADE THE GOVERNMENT AMENDABLE TO ANY CAUSE
OF ACTION IN ADMIRALTY, IN REM OR IN PERSONAM, TO WHICH A PRIVATE OWNER
WOULD BE LIABLE.  272 U.S., AT 690.  THIS VIEW WAS REITERATED AND
REINFORCED IN FLEET CORP. V. ROSENBERG BROS., 276 U.S. 202.  THERE THE
LIBELLANTS SUED THE GOVERNMENT-OWNED FLEET CORPORATION IN ADMIRALTY. 
THE CAUSE WAS TIME-BARRED UNDER THE SUITS IN ADMIRALTY ACT, BUT THE
RESPONDENTS ARGUED THAT THE REMEDY PROVIDED BY THE ACT DID NOT PRECLUDE
A NONSTATUTORY SUIT IN ADMIRALTY AGAINST THE PUBLIC CORPORATION.  THE
COURT HELD THAT THE ACT PROVIDED THE EXCLUSIVE ADMIRALTY REMEDY AGAINST
THE UNITED STATES OR ITS AGENCIES.  IT LEFT OPEN, HOWEVER, THE QUESTION
WHETHER "THE ACT ALSO PREVENTS A RESORT TO ANY CONCURRENT REMEDIES
AGAINST THE UNITED STATES  ...  ON LIKE CAUSES OF ACTION IN THE COURT
OF CLAIMS OR IN COURTS OF LAW  ...  ."  276 U.S., AT 214. 

THIS RESERVATION WAS LAID AT REST IN JOHNSON V. FLEET CORP., 280 U.S.
320.  THERE FOUR CASES WERE CONSOLIDATED:  TWO INVOLVED SEAMEN'S
ALLEGATIONS OF NEGLIGENCE; THE THIRD ALLEGED BREACH OF CONTRACT
AFFECTING CARGO; THE FOURTH ALLEGED LOSS OF CARGO DUE TO NEGLIGENCE. 
THE SUITS WERE BARRED BY THE SUITS IN ADMIRALTY STATUTE OF LIMITATIONS,
BUT IT WAS ARGUED THAT TUCKER ACT AND COMMON-LAW REMEDIES WERE STILL
AVAILABLE.  THE COURT HELD SQUARELY FOR THE GOVERNMENT IN SPITE OF WELL
BRIEFED ARGUMENTS AND SOME SUPPORT FROM LEGISLATIVE HISTORY THAT THE
ADMIRALTY JURISDICTION WAS NOT MEANT TO BE EXCLUSIVE IN SUCH CASES. 
(FN1)  REVIEWING THE STRUCTURE OF THE ACT AND BASIC CONGRESSIONAL
INTENT, THE COURT STATED THAT THE ACT'S PURPOSES WOULD NOT BE SERVED
"IF SUITS UNDER THE TUCKER ACT AND IN THE COURT OF CLAIMS BE ALLOWED
AGAINST THE UNITED STATES AND ACTIONS AT LAW IN STATE AND FEDERAL
COURTS BE PERMITTED AGAINST THE FLEET CORPORATION OR OTHER AGENTS FOR
ENFORCEMENT OF THE MARITIME CAUSES OF ACTION COVERED BY THE ACT."  280
U.S., AT 327.  THE COURT CONCLUDED "THAT THE REMEDIES GIVEN BY THE ACT
ARE EXCLUSIVE IN ALL CASES WHERE A LIBEL MIGHT BE FILED UNDER IT." 
IBID. 

THIS INTERPRETATION OF THE SUITS IN ADMIRALTY ACT WAS SUBSEQUENTLY
RECOGNIZED AND ULTIMATELY ADOPTED BY THE CONGRESS, WHICH ON VARIOUS
OCCASIONS HAS AMENDED THE ACT OR PASSED SUPPORTING LEGISLATION PREMISED
ON THE EXCLUSIVITY OF THE ACT OVER ALL CLAIMS THAT MIGHT BE HEARD IN
ADMIRALTY.  SOON AFTER THE JOHNSON CASE, SUPRA, WAS DECIDED, THE
CONGRESS ACTED TO MITIGATE ITS EFFECTS ON THOSE WHO WERE BARRED BY ITS
TWO-YEAR LIMITATION.  IN AN ACT OF JUNE 30, 1932, 47 STAT. 420, SEC 5
OF THE SUITS IN ADMIRALTY ACT WAS AMENDED TO WAIVE THE TWO-YEAR PERIOD
FOR SUITORS WHO HAD FILED TIMELY ACTIONS ELSEWHERE BEFORE THE JOHNSON
DECISION.  (FN2)  IN 1950, IN ORDER TO ELIMINATE ANY REMAINING
CONFUSION, SEC 5 WAS AGAIN AMENDED TO CODIFY THE JOHNSON RULE AS
APPLIED TO GOVERNMENT AGENTS, NAMELY, "THAT WHERE A REMEDY IS PROVIDED
BY  ...  THE SUITS IN ADMIRALTY ACT IT SHALL HEREAFTER BE EXCLUSIVE OF
ANY OTHER ACTION BY REASON OF THE SAME SUBJECT MATTER AGAINST THE AGENT
OR EMPLOYEE OF THE UNITED STATES  ...  ."  64 STAT.  1112, 46 U.S.C.
SEC 745 (1964 ED.).  SEE S. REP. NO. 2535, 81ST CONG., 2D SESS. (1950),
QUOTED IN NOTE 2, SUPRA; H.R. REP. NO. 1292, 81ST CONG., 1ST SESS.
(1949). 

THE STATUTES AFFECTING THE COURT OF CLAIMS DIRECTLY WERE ALSO ALTERED
BY CONGRESS TO CONFORM WITH THE BASIC STRUCTURE OF THE EXCLUSIVE
ADMIRALTY JURISDICTION.  IN 1948 THE TUCKER ACT WAS AMENDED TO STRIKE
THE WORD "ADMIRALTY" FROM THE SCOPE OF THAT COURT'S JURISDICTION.  ACT
OF JUNE 25, 1948, C. 646, 62 STAT. 940, 28 U.S.C. SEC 1491 (1964 ED.). 
(FN3)  IN 1960, AN ACT WAS PASSED TO FACILITATE TRANSFERS OF ADMIRALTY
ACTIONS FROM THE COURT OF CLAIMS TO THE FEDERAL DISTRICT COURTS AND TO
TOLL THE RUNNING OF THE STATUTE OF LIMITATIONS IN SUCH CASES SO THAT
LITIGANTS WHO SUED, INCORRECTLY, IN THE COURT OF CLAIMS WOULD NOT BE
REQUIRED TO FILE A NEW SUIT IN THE DISTRICT COURT WHICH MIGHT BY THEN
BE TIME-BARRED.  ACT OF SEPTEMBER 13, 1960, 74 STAT. 912, 28 U.S.C. SEC
1506 (1964 ED.).  RECOGNITION OF THE EXCLUSIVE ADMIRALTY JURISDICTION
OF THE DISTRICT COURTS PROMPTED ENACTMENT OF THIS STATUTE.  SEE H.R.
REP. NO. 523, 86TH CONG., 1ST SESS. (1959); S. REP. NO. 1894, 86TH
CONG., 2D SESS. (1960). 

                                        II. 

THIS SURVEY OF CASE LAW AND STATUTORY DEVELOPMENT INDICATES QUITE
CLEARLY THAT THE JURISDICTION OF THE DISTRICT COURTS IS EXCLUSIVE IN
ACTIONS FALLING WITHIN THE PURVIEW OF THE SUITS IN ADMIRALTY ACT, AND
THAT THE TEST FOR DETERMINING WHETHER AN ACTION FALLS WITHIN THAT CLASS
IS WHETHER "A LIBEL MIGHT BE FILED UNDER THE ACT," JOHNSON V. FLEET
CORP., SUPRA, AT 327, OR IN THE WORDS OF THE STATUTE DIRECTLY, WHETHER
"IF SUCH VESSEL WERE PRIVATELY OWNED OR OPERATED  ...  A PROCEEDING IN
ADMIRALTY COULD BE MAINTAINED."  46 U.S.C. SEC 742. 

UNITL TODAY THE BASIC TEST FOR THE ACT'S APPLICABILITY HAS BEEN A
FAMILIAR HISTORICAL ONE, FOR THE STATUTORY TERM "PROCEEDING IN
ADMIRALTY" IS QUITE OBVIOUSLY COEXTENSIVE WITH ITS MEANING IN ORDINARY
LEGAL USAGE.  IN THE CASE NOW BEFORE US, THE QUESTION FOR THE COURT IS
WHETHER THE CLAIM FOR BACK WAGES BY THESE SEAMEN WOULD BE HEARD BY AN
ADMIRALTY COURT IF THEIR EMPLOYER WERE A PRIVATE PERSON.  THE ANSWER IS
CLEARLY IN THE AFFIRMATIVE, SEE SHEPPARD V. TAYLOR, 5 PET. 675; KOSSICK
V. UNITED FRUIT CO., 365 U.S. 731, 735.  IT IS STATED IN 1 BENEDICT,
THE LAW OF AMERICAN ADMIRALTY 124 (6TH ED. KNAUTH 1940):  "THE MARINERS
OF A SHIP ARE COMMONLY SAID TO BE WARDS OF THE ADMIRALTY.  THEIR WAGES,
THEIR RIGHTS, THEIR WRONGS AND INJURIES HAVE ALWAYS BEEN A SPECIAL
SUBJECT OF THE ADMIRALTY JURISDICTION."  IT IS TRUE THAT THE CLAIM
AGAINST A PRIVATE EMPLOYER MIGHT ALSO BE LITIGATED IN A COMMON-LAW
COURT, SEE LEON V. GALCERAN, 11 WALL.  185; 1 BENEDICT, SUPRA, AT 35. 
BUT THE FACT THAT THERE IS CONCURRENT JURISDICTION OVER SUCH A CLAIM IN
PRIVATE LITIGATION IS IRRELEVANT FOR PURPOSES OF A SUIT AGAINST THE
SOVEREIGN, FOR AS SHOWN ABOVE, THE SUITS IN ADMIRALTY ACT IS EXCLUSIVE
OVER ANY ACTION WHICH "COULD BE MAINTAINED" IN ADMIRALTY.  THIS IS
INDUBITABLY SUCH A CLAIM. 

                            III. 

THE COURT, WHILE RECOGNIZING "THAT THE SUITS IN ADMIRALTY ACT
SPECIFICALLY REPEALED THE TUCKER ACT SO FAR AS THE TWO CONFLICTED,"
ANTE, P. 163, AVOIDS THE RESULT COMPELLED BY PRIOR INTERPRETATION OF
THE SUITS IN ADMIRALTY ACT AND CONVENTIONAL ADMIRALTY LAW, BY
FORMULATING A NEW TEST FOR THE STATUTE'S APPLICABILITY.  INSTEAD OF
ASKING WHETHER THIS SUIT IS ONE TRADITIONALLY WITHIN THE SCOPE OF
ADMIRALTY JURISDICTION, IT SEES THE INTERELATION OF THE TUCKER ACT AND
THE SUITS IN ADMIRALTY ACT AS REQUIRING AN INQUIRY INTO THE QUESTION
WHETHER THE PETITIONERS ARE MORE LIKE FEDERAL EMPLOYEES THAN LIKE
MARINERS, AND AFTER WEIGHING THE FACTORS INVOLVED CONCLUDES THAT THEY
ARE MORE CIVIL SERVANTS THAN SEAFARERS.  I BELIEVE THIS TEST PRESENTS A
FALSE BASIS FOR DETERMINING WHETHER OR NOT EXCLUSIVE JURISDICTION LIES
IN ADMIRALTY AND PUTS A MISCHIEVOUS GLOSS ON THE RELEVANT STATUTES. 

OBVIOUSLY THESE PETITIONERS ARE BOTH FEDERAL EMPLOYEES AND SEAMEN. 
ONE LABEL REFERS TO THEIR EMPLOYER; THE OTHER TO THE TYPE OF WORK THEY
PERFORM.  THIS DUAL CLASSIFICATION MIGHT WELL BE MADE OF THE STATUS OF
EMPLOYEES IN MANY PRIVATE INDUSTRIES.  A LARGE CORPORATION MIGHT HAVE
THOUSANDS OF EMPLOYEES, SOME OF WHOM ARE EMPLOYED IN MARITIME
ACTIVITIES.  BECAUSE OF THE EVOLUTION OF OUR LEGAL SYSTEM THESE
MARITIME EMPLOYEES CAN SUE THEIR EMPLOYER IN AN ADMIRALTY COURT AS WELL
AS AT LAW; THEIR LAND-BASED CO-WORKERS DO NOT HAVE THAT OPTION.  THE
FACT THAT THE CONTRACTS, PENSION RIGHTS, AND OTHER BENEFITS AND
OBLIGATIONS MAY BE SIMILAR FOR BOTH TYPES OF EMPLOYEES IN IRRELEVANT
FOR PURPOSES OF DEFINING THE ADMIRALTY COURT'S JURISDICTION OVER THE
CLAIMS OF THESE MARITIME EMPLOYEES.   CF. THE STEAM-BOAT THOMAS
JEFFERSON, 10 WHEAT.  428; INTERNATIONAL STEVEDORING CO. V. HAVERTY,
272 U.S. 50.  THE POSITION OF FEDERAL MARITIME EMPLOYEES SHOULD BE NO
DIFFERENT.  THE ARGUMENT OF THE COURT SHOWING THAT IN MANY RESPECTS THE
RIGHTS OF FEDERAL EMPLOYEES WHO ARE SEAMEN ARE SIMILAR TO THE RIGHTS OF
FEDERAL EMPLOYEES WHO ARE NOT SEAMEN, WHATEVER ITS MERITS ON ITS OWN
TERMS, SEE PART IV, INFRA, DOES NOT NEGATE THE FACT THAT THE CLAIMS OF
THESE SEAMEN ARE WITHIN THE TRADITIONAL SCOPE OF THE ADMIRALTY
JURISDICTION.  SEE MCCREA V. UNITED STATES, 294 U.S. 23, A CLAIM FOR
WAGES, INTER ALIA, UNDER THE SUITS IN ADMIRALTY ACT. 

NOT ONLY IS THE COURT'S APPROACH BASED UPON A FALSE YARDSTICK, BUT IT
CONTRIVES AN IMPRACTICABLE TEST FOR APPLYING A JURISDICTIONAL STATUTE. 
THE RULE HERETOFORE USED FOR THE APPLICATION OF THE SUITS IN ADMIRALTY
ACT HAS BEEN THAT, ABSENT ANY CLEAR STATUTORY EXCEPTION,  (FN4) IT
ENCOMPASSES ANY CLAIM THAT COULD HAVE BEEN BROUGHT BEFORE AN ADMIRALTY
COURT WERE THE DEFENDANT A PRIVATE SHIPPER.  SINCE THE SCOPE OF THE
ADMIRALTY JURISDICTION IS LONG ESTABLISHED AND GENERALLY WELL
UNDERSTOOD, SUITORS WOULD NORMALLY KNOW IN WHAT FORUM THEIR CASES
SHOULD BE BROUGHT.  THE COURT'S NEW TEST FOR DETERMINING THE PROPER
FORUM IS WHETHER THE UNDERLYING CAUSE OF ACTION IS PRIMARILY OF "A
MARITIME NATURE."  AS THE COURT'S OPINION INDICATES, THIS INQUIRY CAN
BE RESOLVED ONLY AFTER WHAT IN MANY INSTANCES WILL BE A COMPLICATED AND
ELUSIVE PROCESS.  INDEED, IN THIS CASE, ONLY AFTER SEVERAL PAGES OF
ANALYSIS IS THE COURT ABLE TO DETERMINE THAT "WITH RESPECT TO THESE
WAGE CLAIMS, CONGRESS THOUGHT OF THESE PETITIONERS MORE AS GOVERNMENT
EMPLOYEES WHO HAPPENED TO BE SEAMEN THAN AS SEAMEN WHO BY CHANCE WORKED
FOR THE GOVERNMENT," ANTE, P. 163.  PUTTING ASIDE THE FACT THAT THERE
IS NOTHING TO SHOW THAT CONGRESS EVER CONTEMPLATED SUCH A
"JURISDICTIONAL" STANDARD, REPLACING THE STRAIGHTFORWARD "ADMIRALTY
JURISDICTION" TEST BY THE UNPREDICTABLE "PRIMARILY OF A MARITIME
NATURE" RULE IS BOUND TO INTRODUCE CONFUSION AND UNCERTAINTY INTO
DETERMINATIONS OF THE APPROPRIATENESS OF A PARTICULAR FORUM, THE VERY
TYPE OF QUESTION THAT SHOULD HAVE A REASONABLY DEFINITIVE ANSWER. 
                                  IV.    THE COURT QUITE OBVIOUSLY
CONSTRUES THE ACT AS IT DOES BECAUSE IT IS RELUCTANT TO DEPRIVE
FEDERALLY EMPLOYED SEAMEN OF THE LONGER STATUTE OF LIMITATIONS
AVAILABLE UNDER THE TUCKER ACT.  APART FROM ANYTHING ELSE, THIS CAN BE
ACCOMPLISHED, HOWEVER, ONLY AT THE EXPENSE OF FORFEITING OTHER
SUBSTANTIAL ADVANTAGES AVAILABLE UNDER THE SUITS IN ADMIRALTY ACT. 

FIRST, AN ADMIRALTY COURT IS LIKELY TO BE BETTER ACQUAINTED WITH MANY
UNDERLYING QUESTIONS INVOLVED IN SUITS SUCH AS THESE, AND TO BE MORE
SENSITIVE TO THE TRADITION THAT SEAMEN ARE THE "WARDS OF THE
ADMIRALTY."  FOR EXAMPLE, THE CLASSIFICATION ACT OF 1949, 63 STAT. 954,
AS AMENDED, 5 U.S.C. SEC 1082(8) (1964 ED.), PROVIDES THAT FEDERALLY
EMPLOYED CREW MEMBERS SHALL BE COMPENSATED "AS NEARLY AS IS CONSISTENT
WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND
PRACTICES IN THE MARITIME INDUSTRY  ...  ."  ONE OF THE SUITS
CONSOLIDATED IN THIS ACTION RAISES THE QUESTION OF OVERTIME PAYMENT FOR
"PORT WATCH TOURS OF DUTY," AND THE PETITIONER, CITING THE
CLASSIFICATION ACT, ALLEGES THAT "PREVAILING RATES" IN THE TRADE
REQUIRE "16 HOURS AT OVERTIME RATES PER 24 HOUR PORT WATCH TOUR OF
DUTY."  ANOTHER COMPLAINT INVOLVES, INTER ALIA, A NAVAL RULE REGARDING
LUNCH PERIODS WHERE, DUE TO THE NATURE OF THE WORK, "IT MAY NOT BE
ADMINISTRATIVELY DESIRABLE TO ALLOW A SPECIFIED PERIOD OF TIME OFF FOR
LUNCH."  NAVY CIVILIAN PERSONNEL INSTRUCTION 610.1-1K.  QUESTIONS
INVOLVING SUCH SUBJECT MATTER ARE BEST HEARD IN ADMIRALTY.  (FN5) 

SECOND, VENUE UNDER THE TUCKER ACT, FOR SUITS OVER $10,000 AND ALL
SUITS INVOLVING PENSION RIGHTS, IS LIMITED TO THE COURT OF CLAIMS.  28
U.S.C. SEC 1346(A), (D) (1964 ED.).  THREE OF THE FOUR SUITS
CONSOLIDATED HERE ARE ABOVE THE $10,000 LIMIT, AND THUS CAN ONLY BE
BROUGHT IN THE DISTRICT OF COLUMBIA.  OF THESE THREE CASES, TWO INVOLVE
NAVAL FACILITIES AT FORT LAUDERDALE, FLORIDA.  THE INTERESTS OF MOST
MARITIME EMPLOYEES OF THE UNITED STATES WOULD PROBABLY BE BETTER SERVED
BY ALLOWING THE MORE FAVORABLE VENUE PROVISIONS IN ADMIRALTY.  (FN6) 

THIRD, INTEREST PROVISIONS UNDER THE SUITS IN ADMIRALTY ACT ARE MORE
FAVORABLE THAN UNDER THE TUCKER ACT.  UNDER THE LATTER STATUTE INTEREST
RUNS AT MOST FROM THE DATE OF JUDGMENT, 28 U.S.C. SECS 2411(B), 2516
(1964 ED.), WHILE IN ADMIRALTY THE COURT MAY AWARD INTEREST FROM THE
DATE THE LIBEL IS FILED.  46 U.S.C. SEC 743, 745 (1964 ED.).  GREATER
COURT COSTS MAY ALSO BE AWARDED IN ADMIRALTY.  COMPARE 46 U.S.C. SEC
743 WITH 28 U.S.C. SEC 2412(B) (1964 ED.). 

BECAUSE OF THE COURT'S RULING TODAY, ALL OF THESE BENEFITS ARE LOST
TO ALL FEDERALLY EMPLOYED SEAMEN, NOT MERELY TO THOSE INVOLVED IN THIS
CASE.  THE UNTOWARD RESULTS TO WHICH THIS DECISION LEADS IN THEMSELVES
ENGENDER THE MOST SERIOUS MISGIVINGS AS TO THE SOUNDNESS OF THE COURT'S
RULING, ALBEIT IT MAY BE THOUGHT TO PRODUCE A BENEFICENT RESULT IN THIS
PARTICULAR INSTANCE. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF CLAIMS. 

FN1  LEGISLATIVE HISTORY BEARING ON THIS ASPECT OF THE QUESTION IS
MEAGER, ALTHOUGH ONE COLLOQUY DURING THE HOUSE COMMITTEE ON THE
JUDICIARY HEARINGS ON THIS BILL SUGGESTS THAT CONCURRENT JURISDICTION
WITH THE COURT OF CLAIMS MIGHT HAVE BEEN CONTEMPLATED IN CERTAIN
SITUATIONS.  HEARING BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON THE
ATTORNEY GENERAL'S SUBSTITUTE FOR S. 3076 AND H.R. 7124, 66TH CONG.,
1ST SESS., SER.  8, AT 48 (1919). 

FN2  AGAIN IN 1950 CONGRESS EXTENDED THE LIMITATIONS PERIOD TO
ACCOMMODATE THOSE EMPLOYEES WHO, IN RELIANCE UPON A PRIOR DECISION,
HUST V. MOORE-MCCORMACK LINES, 328 U.S. 707, OVERRULED IN COSMOPOLITAN
CO. V. MCALLISTER, 337 U.S. 783, HAD NOT FILED SUIT AGAINST THE UNITED
STATES UNDER THE SUITS IN ADMIRALTY ACT FOR A TORT COMMITTED WHEN A
GOVERNMENT-OWNED SHIP WAS BEING OPERATED BY A PRIVATE COMPANY AS
GENERAL AGENT FOR THE GOVERNMENT.  64 STAT.  1112, 46 U.S.C. SEC 745
(1964 ED.).  THE SENATE REPORT NOTED THAT "TO PREVENT FUTURE REPETITION
OF SUCH MISTAKES THE BILL EXPRESSLY RESTATES THE EXISTING LAW THAT THE
REMEDY BY SUIT AGAINST THE UNITED STATES IS EXCLUSIVE OF EVERY OTHER
TYPE OF ACTION BY REASON OF THE SAME SUBJECT MATTER AGAINST THE UNITED
STATES OR AGAINST ITS EMPLOYEES OR AGENTS."  S. REP. NO. 2435, 81ST
CONG., 2D SESS., 1 (1950). 

FN3  THE HOUSE REPORT NOTED:  "THE COURT OF CLAIMS HAS NO ADMIRALTY
JURISDICTION, BUT THE SUITS IN ADMIRALTY ACT  ...  VESTS EXCLUSIVE
JURISDICTION OVER SUITS IN ADMIRALTY AGAINST THE UNITED STATES IN THE
DISTRICT COURTS."  H.R. REP. NO. 308, 80TH CONG., 1ST SESS., APP.  P.
138 (1947). 

FN4  COMPARE JOHANSEN V. UNITED STATES, 343 U.S. 427 , AND PATTERSON
V. UNITED STATES, 359 U.S. 495, IN WHICH IT WAS HELD THAT THE FEDERAL
EMPLOYEES' COMPENSATION ACT OF 1916, 39 STAT. 742, 5 U.S.C. SEC 751 ET
SEQ. (1964 ED.), PROVIDED THE SOLE REMEDY FOR SEAMEN INJURED ON BOARD
GOVERNMENT-OWNED VESSELS, THUS BARRING SUITS UNDER THE SUITS IN
ADMIRALTY ACT. 

FN5  THE COURT'S ARGUMENT THAT THIS FACTOR IS OFFSET BY THE PECULIAR
EXPERTISE OF THE COURT OF CLAIMS WITH RESPECT TO THE NONMARITIME
COMPONENTS OF GOVERNMENT SEAMEN WAGE CLAIMS IS NOT PERSUASIVE. 
DISTRICT COURTS, TOO, POSSESS SUCH EXPERTISE, BORN OF THEIR CONCURRENT
JURISDICTION WITH THE COURT OF CLAIMS IN GOVERNMENT CONTRACT ACTIONS
INVOLVING LESS THAN $10,000.  28 U.S.C. SEC 1346(A) (1964 ED.). 

FN6  46 U.S.C. SEC 742 PROVIDES THAT SUITS UNDER THE SUITS IN
ADMIRALTY ACT "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." 
..END :
















SECURITIES AND EXCHANGE COMMISSION V. NEW ENGLAND ELECTRIC SYSTEM 384
U.S. 176 


NO. 636.  ARGUED MARCH 23, 1966.  - DECIDED MAY 16, 1966.  - 346 F.2D
399, REVERSED AND REMANDED. 


THE SECURITIES AND EXCHANGE COMMISSION (SEC) BROUGHT PROCEEDINGS UNDER
SEC 11(B)(1) OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 TO
DETERMINE THE EXTENT TO WHICH RESPONDENT NEW ENGLAND ELECTRIC SYSTEM
(NEES), A HOLDING COMPANY REGISTERED UNDER SEC 5, COULD LAWFULLY RETAIN
CONTROL OVER ITS ELECTRIC, GAS AND OTHER PROPERTIES.  THE SEC HELD THAT
NEES' SUBSIDIARIES SUPPLYING ELECTRICITY TO RETAIL CUSTOMERS IN FOUR
NEW ENGLAND STATES COMPOSED AN "INTEGRATED ELECTRIC UTILITY SYSTEM" AND
BOTH THE SEC AND NEES AGREE THAT ITS GAS UTILITY SUBSIDIARIES SERVING
RETAIL CUSTOMERS IN MASSACHUSETTS CONSTITUTE AN "INTEGRATED GAS UTILITY
SYSTEM" UNDER THE ACT.  THE SEC AFTER HEARING ORDERED DIVESTMENT OF
NEES' GAS UTILITIES UNDER SEC 11(B)(1)(A), WHICH LIMITS A HOLDING
COMPANY SYSTEM TO A SINGLE INTEGRATED PUBLIC UTILITY SYSTEM UNLESS THE
SEC FINDS, INTER ALIA, THAT AN ADDITIONAL SYSTEM CANNOT BE OPERATED
INDEPENDENTLY "WITHOUT THE LOSS OF SUBSTANTIAL ECONOMIES."  CONSTRUING
THAT PROVISION TO REQUIRE A SHOWING THAT THE ADDITIONAL SYSTEM CANNOT
BE OPERATED UNDER SEPARATE OWNERSHIP WITHOUT THE LOSS OF ECONOMIES SO
IMPORTANT AS TO CAUSE A SERIOUS IMPAIRMENT OF THAT SYSTEM, THE SEC
FOUND THAT THE GAS COMPANIES COULD BE ECONOMICALLY OPERATED
INDEPENDENTLY OF NEES AND THAT ANY LOSSES OF ECONOMIES WOULD BE OFFSET
BY THE BENEFITS FROM COMPETITION BETWEEN THE INDEPENDENTLY CONTROLLED
GAS AND ELECTRIC COMPANIES.  THE COURT OF APPEALS REVERSED,
INTERPRETING "LOSS OF SUBSTANTIAL ECONOMIES" TO BE SATISFIED BY "A
BUSINESS JUDGMENT OF WHAT WOULD BE A SIGNIFICANT LOSS."  HELD:  THE SEC
WAS WARRANTED IN RULING THAT THE ACT PROHIBITS A PUBLIC UTILITY HOLDING
COMPANY FROM RETAINING AN INTEGRATED GAS UTILITY SYSTEM IN ADDITION TO
ITS INTEGRATED ELECTRIC UTILITY SYSTEM, UNLESS THE GAS UTILITY SYSTEM
SOUGHT TO BE RETAINED COULD NOT BE SOUNDLY AND ECONOMICALLY OPERATED
INDEPENDENTLY OF THE PRINCIPAL SYSTEM.  PP. 179-185. 

(A)  THE "SINGLE-INTEGRATED" PUBLIC UTILITY SYSTEM REQUIREMENT, AS
THE LEGISLATIVE HISTORY SHOWS, IS THE HEART OF THE ACT, RETENTION OF AN
ADDITIONAL SYSTEM BEING THE DECIDED EXCEPTION; AND THE SEC HAS
CONSISTENTLY ADHERED TO THAT VIEW.  PP. 180-182. 

(B)  CONTROL BY A SINGLE HOLDING COMPANY OF BOTH GAS AND ELECTRIC
COMPANIES WAS ONE OF THE ANTI-COMPETITIVE EVILS AT WHICH THE ACT WAS
AIMED.  P. 183. 

(C)  THOUGH COMPETITIVE ADVANTAGES FROM SEPARATING THE GAS SYSTEM
FROM THE PRINCIPAL HOLDING COMPANY SYSTEM ARE HARD TO FORECAST, IT IS
FOR THE SEC, WHICH HAS EXPERTISE ON THE TOTAL COMPETITIVE SITUATION AND
HAS THE TASK OF PRACTICALLY APPLYING AN INTRICATE STATUTORY SCHEME, TO
GAUGE WHETHER THE GAINS TO COMPETITION THROUGH SEPARATION ARE IN THE
PUBLIC INTEREST AND MIGHT OFFSET THE ESTIMATED LOSS IN ECONOMIES OF
OPERATION.  PP. 184-185. 

SECURITIES AND EXCHANGE COMMISSION V. NEW ENGLAND ELECTRIC SYSTEM ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

NEW ENGLAND ELECTRIC SYSTEM (NEES) IS A HOLDING COMPANY REGISTERED
UNDER SEC 5 OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935.  (FN1)
ITS HOLDINGS INCLUDE BOTH ELECTRIC AND GAS UTILITY PROPERTIES.  THE
ELECTRIC COMPANIES SERVE RETAIL CUSTOMERS IN NEW HAMPSHIRE,
MASSACHUSETTS, RHODE ISLAND, AND CONNECTICUT.  THE GAS COMPANIES SERVE
RETAIL CUSTOMERS IN MASSACHUSETTS ALONE.  (FN2) THE COMMISSION,
PROCEEDING UNDER SEC 11 OF THE ACT, (FN3) HELD THAT THE ELECTRIC
UTILITY SUBSIDIARIES OF NEES CONSTITUTED AN "INT GRATED ELECTRIC
UTILITY SYSTEM" AS DEFINED IN SEC 2(A)(29)(A).  (FN4)  38 S.E.C. 193. 
THE QUESTION IN THIS CASE DOES NOT CONCERN THESE ELECTRIC UTILITY
SUBSIDIARIES BUT ONLY THE GAS UTILITY SUBSIDIARIES OF NEES, WHICH BOTH
NEES AND THE COMMISSION AGREE CONSTITUTE AN "INTEGRATED GAS UTILITY
SYSTEM" WITHIN THE MEANING OF SEC 2(A)(29)(B) OF THE ACT.  (FN5) 

BY SEC 11(B)(1) (FN6) A HOLDING COMPANY SYSTEM IS TO BE LIMITED IN
OPERATIONS BY THE COMMISSION "TO A SINGLE INTEGRATED PUBLIC-UTILITY
SYSTEM,"  (FN7) PROVIDED, HOWEVER, THAT IT MAY BE PERMITTED TO CONTROL
ONE OR MORE ADDITIONAL "INTEGRATED PUBLIC-UTILITY SYSTEMS" IF THE
COMMISSION FINDS, INTER ALIA, THAT "EACH OF SUCH ADDITIONAL SYSTEMS
CANNOT BE OPERATED AS AN INDEPENDENT SYSTEM WITHOUT THE LOSS OF
SUBSTANTIAL ECONOMIES WHICH CAN BE SECURED BY THE RETENTION OF CONTROL
BY SUCH HOLDING COMPANY OF SUCH SYSTEM."  SEC 11(B)(1)(B).  IT IS ON
THE MEANING OF THIS PROVISO THAT THE PRESENT CONTROVERSY DEPENDS.  THE
COMMISSION FOUND THAT DIVESTMENT OF NEES' GAS UTILITIES WOULD NOT
RESULT IN A "LOSS OF SUBSTANTIAL ECONOMIES" TO THESE COMPANIES WITHIN
THE MEANING OF SEC 11(B)(1)(A).  IT CONSTRUED CLAUSE (A) TO REQUIRE A
SHOWING THAT THE "ADDITIONAL SYSTEM CANNOT BE OPERATED UNDER SEPARATE
OWNERSHIP WITHOUT THE LOSS OF ECONOMIES SO IMPORTANT AS TO CAUSE A
SERIOUS IMPAIRMENT OF THAT SYSTEM."  THE COMMISSION RULED THAT IT WAS
UNABLE "TO FIND THAT THE GAS COMPAINES COULD NOT BE SOUNDLY AND
ECONOMICALLY OPERATED INDEPENDENTLY OF NEES."  IT FOUND THAT ANY LOSSES
OF ECONOMIES WOULD BE OFFSET BY THE BENEFITS THAT WOULD FLOW FROM THE
HEALTHY COMPETITION BETWEEN THE INDEPENDENTLY CONTROLLED GAS AND
ELECTRIC COMPANIES, PROMOTION OF COMPETITION BETWEEN GAS UTILITIES AND
ELECTRIC UTILITIES BEING AN IMPORTANT PURPOSE OF THE ACT.  ACCORDINGLY,
IT ORDERED THAT THE GAS UTILITIES BE DIVESTED. 

ON PETITION FOR REVIEW THE COURT OF APPEALS REVERSED ON THE GROUND
THAT THE COMMISSION HAD MISINTERPRETED THE STATUTORY PHRASE "LOSS OF
SUBSTANTIAL ECONOMIES."  346 F.2D 399.  THE COURT HELD THAT CLAUSE (A)
"CALLED FOR A BUSINESS JUDGMENT OF WHAT WOULD BE A SIGNIFICANT LOSS,
NOT FOR A FINDING OF TOTAL LOSS OF ECONOMY OR EFFICIENCY" (346 F.2D, AT
406), AND, BELIEVEING THAT ON THIS RECORD AND WITH THE STATUTE SO
INTERPRETED THERE COULD HAVE BEEN A FINDING IN FAVOR OF NEES, REMANDED
THE CASE TO THE COMMISSION.  WE GRANTED CERTIORARI, 382 U.S. 953. 

WE AGREE WITH THE COMMISSION'S READING OF CLAUSE (A) AND REMAND THE
CAUSE TO THE COURT OF APPEALS SO THAT THERE MAY BE A REVIEW OF THE
CHALLENGED ORDER IN LIGHT OF THE PROPER MEANING OF THE STATUTORY TERM. 

THE REQUIREMENT IN SEC 11 OF A "SINGLE INTEGRATED" SYSTEM IS THE
"VERY HEART" OF THE ACT.  (FN8) THE RETENTION OF AN "ADDITIONAL"
INTEGRATED SYSTEM IS DECIDEDLY THE EXCEPTION.  (FN9)  AS ORIGINALLY
PASSED BY THE SENATE, SEC 11 WOULD HAVE LIMITED ALL REGISTERED HOLDING
COMPANIES TO A SINGLE "GEOGRAPHICALLY AND ECONOMICALLY INTEGRATED
PUBLIC UTILITY SYSTEM."  (FN10)  THE HOUSE VERSION DIFFERED IN THAT IT
PERMITTED THE COMMISSION TO MAKE EXCEPTIONS WHERE LIMITATION OF THE
OPERATIONS OF THE HOLDING COMPANY WAS NOT FOUND TO BE "IN THE PUBLIC
INTEREST."  (FN11)  THE VERSION WITH WHICH WE DEAL EMERGED FROM A
CONFERENCE COMMITTEE.  THE SCOPE OF THE EXCEPTION AS IT APPEARS IN THE
BILL'S FINAL FORM WAS THUS EXPLAINED TO THE HOUSE: 

"SECTION 11 OF BOTH BILLS (I.E., THE HOUSE AND SENATE VERSIONS),
THEREFORE, AUTHORIZES THE SECURITIES AND EXCHANGE COMMISSION TO REQUIRE
A HOLDING COMPANY TO LIMIT ITS CONTROL OVER OPERATING UTILITY COMPANIES
TO ONE INTEGRATED PUBLIC-UTILITY SYSTEM. 

     *       *         *         *         * 

"THE CONFERENCE SUBSTITUTE MEETS THE HOUSE DESIRE TO PROVIDE FOR
FURTHER FLEXIBILITY BY THE STATEMENT OF ADDITIONAL DEFINITE AND
CONCRETE CIRCUMSTANCES UNDER WHICH EXCEPTION SHOULD BE MADE TO THE FORM
OF ONE INTEGRATED SYSTEM  ...  . 

"THE SUBSTITUTE, THEREFORE, MAKES PROVISION TO MEET THE SITUATION
WHERE A HOLDING COMPANY CAN SHOW A REAL ECONOMIC NEED ON THE PART OF
ADDITIONAL INTEGRATED SYSTEMS FOR PERMITTING THE HOLDING COMPANY TO
KEEP THESE ADDITIONAL SYSTEMS  ...  ."  H.R. REP. NO. 1903, 74TH CONG.,
1ST SESS., 70-71. 

ADDITIONAL LIGHT IS SHED ON THE PURPOSE OF SEC 11 BY THE REMARKS OF
SENATOR WHELLER, A MEMBER OF THE CONFERENCE COMMITTEE: 

"SINCE BOTH BILLS ACCEPTED THE PROPOSITION THAT A HOLDING COMPANY
SHOULD NORMALLY BE LIMITED TO ONE INTEGRATED SYSTEM, MY COLLEAGUES AND
I CONCEIVED IT TO BE OUR TASK TO FIND WHAT CONCRETE EXCEPTIONS, IF ANY,
COULD BE MADE TO THIS RULE THAT WOULD SATISFY THE DEMAND OF THE HOUSE
FOR SOME GREATER FLEXIBILITY.  AFTER CONSIDERABLE DISCUSSION THE SENATE
CONFEREES CONCLUDED THAT THE FURTHEST CONCESSION THEY COULD MAKE WOULD
BE TO PERMIT THE COMMISSION TO ALLOW A HOLDING COMPANY TO CONTROL MORE
THAN ONE INTEGRATED SYSTEM IF (AMONG OTHER TESTS) THE ADDITIONAL SYSTEM
WERE IN THE SAME REGION AS THE PRINCIPAL SYSTEM AND WERE SO SMALL THAT
THEY WERE INCAPABLE OF INDEPENDENT ECONOMICAL OPERATION  ...  ."  79
CONG.  REC. 14479. 

AS THE COMMISSION SAID IN 1948: 

"THE LEGISLATIVE HISTORY OF SECTION 11(B)(1) INDICATES THAT IT WAS
THE INTENT OF CONGRESS TO CREATE ONLY A LIMITED EXCEPTION TO THE
GENERAL RULE CONFINING HOLDING COMPANIES TO A SINGLE SYSTEM, AND THAT
THIS EXCEPTION WAS CREATED TO DEAL WITH THE SITUATION IN WHICH THE
PROVEN INABILITY OF THE ADDITIONAL SYSTEM TO STAND BY ITSELF WOULD
RESULT IN SUBSTANTIAL HARDSHIP TO INVESTORS AND CONSUMERS WERE ITS
RELATIONSHIP WITH THE HOLDING COMPANY TERMINATED."  PHILADELPHIA CO.,
28 S.E.C. 35, 46. 

WHILE THE COMMISSION HAS VARIOUSLY PHRASED THE RULE, IT HAS
CONSISTENTLY ADHERED TO THAT VIEW.  (FN12) 

THIS SUGGESTS A MUCH MORE STRINGENT TEST THAN "A BUSINESS JUDGMENT OF
WHAT WOULD BE A SIGNIFICANT LOSS," TO QUOTE THE COURT OF APPEALS.  346
F.2D, AT 406.  PROMOTION OF "ECONOMY OF MANAGEMENT AND OPERATION" AND
"THE INTEGRATION AND COORDINATION OF RELATED OPERATING PROPERTIES" (SEC
1(B)(4), 49 STAT. 804, 15 U.S.C. SEC 79AB)(4)) IS A THEME THAT RUNS
THROUGHOUT THE ACT.  BUT SO DOES THE THEME OF ELIMINATION OF "RESTRAINT
OF FREE AND INDEPENDENT COMPETITION."  (FN13)  SEC 1(B)(2), 49 STAT.
803-804, 15 U.S.C. SEC 79AB)(2).  ONE OF THE EVILS THAT HAD RESULTED
FROM CONTROL OF UTILITIES BY HOLDING COMPANIES WAS THE RETENTION IN ONE
SYSTEM OF BOTH GAS AND ELECTRIC PROPERTIES AND THE FAVORING OF ONE OF
THESE COMPETING FORMS OF ENERGY OVER THE OTHER.  (FN14) 

IN THE PRESENT CASE THE COMMISSION SAID ON THIS PHASE OF THE
CONTROVERSY: 

"ALTHOUGH THE NEES GAS DIVISION HANDLES SALES AND PROMOTIONAL
ACTIVITIES AND VARIOUS OTHER MATTERS FOR THE GAS SUBSIDIARIES
SEPARATELY FROM THE ELECTRIC COMPANIES, FINAL AUTHORITY ON ALL
IMPORTANT MATTERS RESTS IN THE TOP NEES MANAGEMENT.  THE BASIC
COMPETITIVE POSITION THAT EXISTS BETWEEN GAS AND ELECTRIC UTILITY
SERVICE WITHIN THE SAME LOCALITY IS AFFECTED BY SUCH VITAL MANAGEMENT
DECISIONS AS THE AMOUNT OF FUNDS TO BE RAISED FOR OR ALLOCATED TO THE
EXPANSION OR PROMOTION OF EACH TYPE OF SERVICE."  (FN15) 

COMPETITIVE ADVANTAGES TO BE GAINED BY A SEPARATION ARE DIFFICULT TO
FORECAST.  THE GAINS TO COMPETITION MIGHT WELL BE IN THE PUBLIC
INTEREST AND MIGHT WELL OFFSET THE ESTIMATED LOSS IN ECONOMIES OF
OPERATION  (FN16) RESULTING FROM A SEPARATION OF THE GAS PROPERTIES
FROM THE UTILITY SYSTEM.  THIS IS A MATTER FOR COMMISSION EXPERTISE ON
THE TOTAL COMPETITIVE SITUATION, NOT MERELY ON A PREDICTION WHETHER,
FOR EXAMPLE, A GAS COMPANY IN A HOLDING COMPANY SYSTEM MAY MAKE MORE
FOR INVESTORS THAN A GAS COMPANY CONVERTED INTO AN INDEPENDENT REGIME. 

THE PHRASE "WITHOUT THE LOSS OF SUBSTANTIAL ECONOMIES" IS ADMITTEDLY
NOT CRYSTAL CLEAR.  BUT THE COMMISSION'S CONSTRUCTION SEEMS TO US TO BE
WELL WITHIN THE PERMISSIBLE RANGE GIVEN TO THOSE WHO ARE CHARGED WITH
THE TASK OF GIVING AN INTRICATE STATUTORY SCHEME PRACTICAL SENSE AND
APPLICATION.  POWER REACTOR CO. V. ELECTRICIANS, 367 U.S. 396, 408. 
AND SEE PHILADELPHIA CO. V. SEC, 177 F.2D 720, 725.  REVERSED AND
REMANDED. 

FN1  49 STAT. 812, 15 U.S.C. SEC 79E (1964 ED.). 

FN2  NEES, THE ELECTRIC COMPANIES, AND THE GAS COMPANIES ARE ALL
PARTIES RESPONDENT AND ARE HEREAFTER REFERRED TO AS RESPONDENT. 

FN3 49 STAT. 820, 15 U.S.C. SEC 79K (1964 ED.). 

FN4  49 STAT. 810, 15 U.S.C. SEC 79BA)(29)(A) (1964 ED.).  AN
"INTEGRATED PUBLIC-UTILITY SYSTEM" AS APPLIED TO ELECTRIC UTILITY
COMPANIES IS DEFINED BY SEC 1(A)(29)(A) AS "A SYSTEM CONSISTING OF ONE
OR MORE UNITS OF GENERATING PLANTS AND/OR TRANSMISSION LINES AND/OR
DISTRIBUTING FACILITIES, WHOSE UTILITY ASSETS, WHETHER OWNED BY ONE OR
MORE ELECTRIC UTILITY COMPANIES, ARE PHYSICALLY INTERCONNECTED OR
CAPABLE OF PHYSICAL INTERCONNECTION AND WHICH UNDER NORMAL CONDITIONS
MAY BE ECONOMICALLY OPERATED AS A SINGLE INTERCONNECTED AND COORDINATED
SYSTEM CONFINED IN ITS OPERATIONS TO A SINGLE AREA OR REGION, IN ONE OR
MORE STATES, NOT SO LARGE AS TO IMPAIR (CONSIDERING THE STATE OF THE
ART AND THE AREA OR REGION AFFECTED) THE ADVANTAGES OF LOCALIZED
MANAGEMENT, EFFICIENT OPERATION, AND THE EFFECTIVENESS OF REGULATION." 

FN5  49 STAT. 810, 15 U.S.C. SEC 79BA)(29)(B) (1964 ED.).  AN
"INTEGRATED PUBLIC-UTILITY SYSTEM" AS APPLIED TO GAS UTILITY COMPANIES
IS DEFINED BY SEC 2(A)(29)(B) AS "A SYSTEM CONSISTING OF ONE OR MORE
GAS UTILITY COMPANIES WHICH ARE SO LOCATED AND RELATED THAT SUBSTANTIAL
ECONOMIES MAY BE EFFECTUATED BY BEING OPERATED AS A SINGLE COORDINATED
SYSTEM CONFINED IN ITS OPERATIONS TO A SINGLE AREA OR REGION, IN ONE OR
MORE STATES, NOT SO LARGE AS TO IMPAIR (CONSIDERING THE STATE OF THE
ART AND THE AREA OR REGION AFFECTED) THE ADVANTAGES OF LOCALIZED
MANAGEMENT, EFFICIENT OPERATION, AND THE EFFECTIVENESS OF REGULATION." 

FN6  49 STAT. 820, 15 U.S.C. SEC 79KB)(1) (1964 ED.). 

FN7  THE COMMISSION HAS LONG HELD THAT A SINGLE "INTEGRATED PUBLIC
UTILITY SYSTEM" CANNOT INCLUDE BOTH GAS AND ELECTRIC PROPERTIES.  SEE
COLUMBIA GAS & ELECTRIC CORP., 8 S.E.C. 443, 462-463; THE UNITED GAS
IMPROVEMENT CO., 9 S.E.C. 52, 77-83; PHILADELPHIA CO., 28 S.E.C.  35,
44.  RESPONDENT DOES NOT CONTEST THIS ASPECT OF THE COMMISSION'S
READING OF THE ACT. 

FN8  NORTH AMERICAN CO. V. SEC, 327 U.S. 686, 704, N. 14; S. REP. NO.
621, 74TH CONG., 1ST SESS., 11. 

FN9  NORTH AMERICAN CO. V. SEC, SUPRA, AT 696-697. 

FN10  S. 2796, SEC 11(B), 74TH CONG., 1ST SESS. AND SEE S. REP. NO.
621, 74TH CONG., 1ST SESS., 32. 

FN11  S. 2796, SEC 11(B), AS PASSED BY THE HOUSE OF REPRESENTATIVES,
AND SENT TO THE SENATE ON JULY 9, 1935.  AND SEE H.R. REP. NO. 1318,
74TH CONG., 1ST SESS., 17. 

FN12  RESPONDENT CONCEDES THAT THE COMMISSION HAS, SINCE 1948,
"ARTICULATED" A TEST "LIKE THE PRESENT TEST."  SEE PHILADELPHIA CO., 28
S.E.C. 35, 46-47, 53-74; GENERAL PUBLIC UTILITIES CORP., 32 S.E.C. 807,
814-815, 826-827, 831; MIDDLE SOUTH UTILITIES, INC., 35 S.E.C. 1, 11
13.  RESPONDENT CONTENDS, HOWEVER, THAT PREVIOUS DECISIONS OF THE
COMMISSION APPLIED A LESS RESTRICTIVE STANDARD OF "SUBSTANTIAL
ECONOMIES."  THE COMMISSION DISAGREES, URGING THAT WHILE THERE WAS
"SOME VARIATION IN CHOICE OF WORDS," IT HAS MAINTAINED A BASICALLY
CONSISTENT POSITION AND THAT ANY SEMANTIC DIFFERENCES ARE DUE LARGELY
TO "THE VARYING CONTENTIONS WITH WHICH THE COMMISSION WAS DEALING." 
THE CASES REFERRED TO ARE NORTH AMERICAN CO., 11 S.E.C.  194, 208-213;
ENGINEERS PUBLIC SERVICE CO., 12 S.E.C. 41; CITIES SERVICE POWER &
LIGHT CO., 14 S.E.C. 28, 37; MIDDLE WEST CORP., 15 S.E.C. 309, 319;
CITIES SERVICE CO., 15 S.E.C. 962, 984; AMERICAN GAS & ELECTRIC CO., 21
S.E.C. 575, 596-597.  WE DO NOT READ THOSE CASES AS BEING INCONSISTENT
WITH THE COMMISSION'S POSITION SINCE 1948.  IN EACH OF THESE CASES THE
COMMISSION FOUND NO SHOWING OF "SUBSTANTIAL ECONOMIES" UNDER WHATEVER
TEST MIGHT BE APPLIED; THUS IT WAS NOT THERE COMPELLED TO GO FURTHER. 
THERE ARE, TO BE SURE, A FEW CASES IN WHICH THE COMMISSION PERMITTED
RETENTION OF SMALL ADDITIONAL SYSTEMS ON THE GROUND THAT THE
REQUIREMENTS OF SEC 11(B)(1) WERE MET; IN THESE, HOWEVER, THE
COMMISSION DID NOT ARTICULATE ANY STANDARD.  SEE, E.G., FEDERAL LIGHT &
TRACTION CO., 15 S.E.C. 675, 683; REPUBLIC SERVICE CORP., 23 S.E.C.
436, 451.  BUT CF. NORTH AMERICAN CO., 11 S.E.C. 194, 243-244. 

WE CANNOT SAY THAT THESE EARLY DECISIONS SHOW ANY CLEAR INCONSISTENCY
WITH THE STANDARD WHICH THE COMMISSION TODAY APPLIES, AND HAS APPLIED
SINCE 1948.  UNDER THESE CIRCUMSTANCES, WE FEEL JUSTIFIED IN REGARDING
THE COMMISSION'S READING OF THE STATUTE AS SUPPORTED BY CONSISTENT
ADMINISTRATIVE PRACTICE.    FN13  SECTION 1(B) PROVIDES  "  ...  IT IS
HEREBY DECLARED THAT THE NATIONAL PUBLIC INTEREST, THE INTEREST OF
INVESTORS IN THE SECURITIES OF HOLDING COMPANIES AND THEIR SUBSIDIARY
COMPANIES AND AFFILIATES, AND THE INTEREST OF CONSUMERS OF ELECTRIC
ENERGY AND NATURAL AND MANUFACTURED GAS, ARE OR MAY BE ADVERSELY
AFFECTED  ...  (2) WHEN SUBSIDIARY PUBLIC-UTILITY COMPANIES ARE
SUBJECTED TO EXCESSIVE CHARGES FOR SERVICES, CONSTRUCTION WORK,
EQUIPMENT, AND MATERIALS, OR ENTER INTO TRANSACTIONS IN WHICH EVILS
RESULT FROM AN ABSENCE OF ARM'S-LENGTH BARGAINING OR FROM RESTRAINT OF
FREE AND INDEPENDENT COMPETITION; ...  ." 

FN14  SEE S. REP. NO. 621, 74TH CONG., 1ST SESS., 29; REPORT OF
NATIONAL POWER POLICY COMMITTEE, H.R. DOC. NO. 137, 74TH CONG., 1ST
SESS., 10 (APPENDIX TO S. REP. NO. 621, 74TH CONG., 1ST SESS.). 

CONGRESS WAS WELL AWARE OF THE ANTI-COMPETITIVE POTENTIAL OF
CORPORATE STRUCTURES THROUGH WHICH CONTROL OF GAS AND ELECTRIC UTILITY
COMPANIES RESTS UNDER THE UMBRELLA OF A SINGLE HOLDING COMPANY.  THAT A
HOLDING COMPANY SO SITUATED MIGHT RETARD EXPANSION OF THE GAS UTILITY
COMPANY IN FAVOR OF THE ELECTRIC UTILITY COMPANY WAS EXPRESSLY
DISCUSSED IN THE SENATE HEARINGS ON AN EARLIER VERSION OF THE ACT.  SEE
HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 1725,
74TH CONG., 1ST SESS., 783. 

CONGRESS MADE SPECIFIC PROVISIONS IN SEC 8 OF THE ACT TO PROHIBIT A
REGISTERED HOLDING COMPANY FROM ACQUIRING AN INTEREST IN BOTH AN
ELECTRIC AND A GAS UTILITY SERVING THE SAME TERRITORY IN A STATE WHICH
PROHIBITS COMMON CONTROL, WITHOUT FIRST OBTAINING PERMISSION FROM THE
APPROPRIATE STATE REGULATORY AGENCY.  WHILE SEC 8 REFLECTS THE CONCERN
OF CONGRESS WITH THIS ASPECT OF COMPETITION (SEE S. REP. NO. 621,
SUPRA, AT 29-30; REPORT OF NATIONAL POWER POLICY COMMITTEE, SUPRA, AT
10), THERE IS NO WARRANT FOR CONCLUDING THAT SEC 8 WAS THE EXCLUSIVE
LEGISLATIVE EFFORT RELATING TO THE PROBLEM.  THE HISTORY OF THE ACT
REFLECTS THE PRESENCE OF A SOPHISTICATED STATUTORY SCHEME.  TO SOME
EXTENT, LOCAL POLICY WAS EXPECTED TO GOVERN, WITH SEC 8 SERVING TO
PREVENT CIRCUMVENTION OF THAT POLICY BY USE OF THE "EXTRA-STATE DEVICE
OF A HOLDING COMPANY."  S. REP. NO. 621, SUPRA, AT 29-30.  AT THE SAME
TIME, SEC 11 WAS EXPECTED TO ASSIST IN IMPOSING RESTRICTIONS WITH
REGARD TO THE COMBINATION OF GAS AND ELECTRICITY IN ONE SYSTEM. 
DISCUSSING THE INTERPLAY BETWEEN SEC 8 AND SEC 11, THE SENATE COMMITTEE
NOTED THAT SEC 8 ONLY APPLIED TO FUTURE ACQUISITIONS:  "THE COMMITTEE
FELT THAT WHILE THE POLICY UPON WHICH THIS SECTION WAS BASED WAS
ESSENTIAL IN THE FORMULATION OF ANY FEDERAL LEGISLATION ON UTILITY
HOLDING COMPANIES, IT DID NOT THINK THAT THE SECTION SHOULD MAKE IT
UNLAWFUL TO RETAIN (UP TO THE TIME THAT SECTION 11 MAY REQUIRE
DIVESTMENT) INTERESTS IN BUSINESSES IN WHICH THE COMPANIES WERE
LAWFULLY ENGAGED ON THE DATE OF THE ENACTMENT OF THE TITLE."  ID., AT
7. 

FN15  BY FOSTERING COMPETITION BETWEEN GAS AND ELECTRIC UTILITY
COMPANIES, THE ACT PROMOTES WHAT HAS BEEN DESCRIBED AS "VARIEGATED
COMPETITION."  HEARINGS BEFORE THE SUBCOMMITTEE ON ANTITRUST AND
MONOPOLY OF THE SENATE COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST
SESS., PT. 2, 840 (1965)(STATEMENT OF DR. SAMUEL M. LOESCHER).  "BUT
SINCE THE DISTRIBUTION OF ELECTRICITY, FOLLOWING GEOGRAPHICAL
DIVORCEMENTS, WAS TO REMAIN A NATURAL MONOPOLY IN EVERY REGION, THE
ONLY KIND OF COMPETITION TO BE ENHANCED WAS THAT OF 'VARIEGATED
COMPETITION.'"  IBID. 

FN16  SEE, E.G., HEARINGS BEFORE HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE ON H.R. 5423, 74TH CONG., 1ST SESS., 1249, 1402-1403,
1530-1531, 2257-2277; HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE
COMMERCE ON S. 1725, 74TH CONG., 1ST SESS., 65.  IT WAS ONLY THE LOSS
OF "SUBSTANTIAL ECONOMIES" THAT CONGRESS THOUGHT WOULD JUSTIFY AN
EXCEPTION FROM THE SEPARATION RULE OF SEC 11. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THE QUESTION BEFORE THE COURT IS THE MEANING OF THE PHRASE "LOSS OF
SUBSTANTIAL ECONOMIES" AS IT APPEARS IN SEC 11(B)(1) OF THE PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935.  (FN1)  THE COURT OF APPEALS RULED
THAT THE PHRASE "CALLED FOR A BUSINESS JUDGMENT OF WHAT WOULD BE A
SIGNIFICANT LOSS," 346 F.2D, AT 406, AND I AGREE WITH THIS RENDERING
WHICH IS BOTH SENSIBLE AND, IN MY VIEW, OBVIOUS.  THIS COURT'S OPINION
ON THE OTHER HAND SEEMS TO HOLD THAT THE PHRASE DEMANDS A LOSS GREAT
ENOUGH TO IMPERIL "SOUND" CORPORATE OPERATIONS.  (FN2)  THAT HOLDING,
AS I SHALL INDICATE, IS AT ODDS WITH THE ACT'S WORDING, HAS LITTLE
BASIS IN LEGITIMATE STATUTORY HISTORY OR THE AIMS OF THE ACT, AND
CANNOT BE SUSTAINED BY AGENCY OR JUDICIAL PRECEDENT. 

INQUIRY NATURALLY BEGINS WITH THE LANGUAGE OF THE ACT, AND WITH OUR
REITERATED PRINCIPLE THAT "THE WORDS OF STATUTES  ...  SHOULD BE
INTERPRETED WHERE POSSIBLE IN THEIR ORDINARY, EVERYDAY SENSES."  CRANE
V. COMMISSIONER, 331 U.S. 1, 6; MALAT V. RIDDELL, 383 U.S. 569, 571. 
IN THIS INSTANCE PLAINLY THE NORMAL MEANING OF "SUBSTANTIAL ECONOMIES"
IS A SIGNIFICANT AMOUNT OF MONEY AND NOT THAT AMOUNT, WHATEVER ITS
SIZE, WHICH GUARANTEES CORPORATE SURVIVAL.  THE FIRST READING WOULD BE
GIVEN BY LAWYERS AND LAYMEN ALIKE AUTOMATICALLY WHILE THE SECOND COULD
HARDLY BE IMAGINED WITHOUT THE PROMPTING OF PERSUASIVE LEGISLATIVE
EVIDENCE.  IF CONGRESS HAD INTENDED THE COURT'S TEST TO GOVERN, IT
COULD EASILY HAVE SAID SO IN SHORTER SPACE AND WITH FAR GREATER
PRECISION.  (FN3)  IN ADDITION, THE COURT'S DECISION WILL APPARENTLY
RESULT IN "SUBSTANTIAL ECONOMIES" BEING READ ITS WAY IN SEC 11(B)(1)
BUT IN A QUITE DIFFERENT, MORE NORMAL FASHION WHERE THE SAME PHRASE
APPEARS IN SEC 2(A)(29)(B), DEFINING AN INTEGRATED GAS UTILITY SYSTEM
(SEE ANTE, N. 4, OF THE COURT'S OPINION).  NONE OF THIS IS TO SAY THAT
THE MANY SUBTLE CHOICES TO BE MADE IN DECIDING WHAT IS A SUBSTANTIAL
SUM IN THE PRESENT CONTEXT ARE DEDICATED BY THE TERSE LANGUAGE OF THE
ACT.  SEE INFRA, N. 11.  THE CHOICE HERE, HOWEVER, IS BETWEEN TWO BROAD
APPROACHES, AND THE ACT'S LANGUAGE INVITES THE FIRST AND REPELS THE
SECOND. 

IF THE NATURAL READING PRODUCED SOME STRANGE OR ARBITRARY RESULT
THERE MIGHT BE REASON TO HESITATE; BUT IN THIS CASE THE LITERAL READING
MAKES EXCELLENT SENSE IN SERVING THE VERY RATIONAL AND DESIRABLE END OF
FINANCIAL ECONOMY.  THE CONGRESS THAT PASSED THE ACT HAD BEEN
IMPORTANTLY CONCERNED WITH THE "INTENSIFICATION OF ECONOMIC POWER
BEYOND THE POINT OF PROVED ECONOMIES  ...  ."  H.R. DOC. NO. 137, 74TH
CONG., 1ST SESS., 4; SEE SECS 1(B)(4), (5) OF THE ACT, 15 U.S.C. SECS
79AB)(4), (5) (1964 ED.)(POLICY STATEMENT), AND THE ACT ITSELF BRISTLES
WITH PROVISIONS AIMED LARGELY AT ATTAINING EFFICIENT MANAGEMENT AND
OPERATIONS.  SEE SECS 7(D)(3), 10(C)(2), 12(D), (F), (G), 13, 15 U.S.C.
SECS 79GD)(3), 79JC)(2), 79LD), (F), (G), 79M (1964 ED.).  WITH THIS
BACKGROUND, NOTHING COULD BE MORE PLAUSIBLE THAN TO CURTAIL DIVESTITURE
AT THE POINT WHERE THE PROSPECT OF SUBSTANTIAL LOSSES REMOVED A PRIME
REASON FOR HAVING DIVESTITURE AT ALL.  THERE ARE TO BE SURE OTHER
DANGERS IN PROLIFERATED GROWTH BESIDES DISECONOMY, DANGERS WHICH PLAYED
THEIR PART IN THE PASSAGE OF THE ACT, BUT THERE ARE ALSO OTHER CLAUSES
OF SEC 11(B)(1) WHOSE CONDITIONS MUST BE MET BEFORE THE EXCEPTION IS
ALLOWED (SEE SUPRA, N. 1).  IN SUM, IT SEEMS CLEAR ENOUGH THAT THE
BURDEN OF PERSUASION RESTS UPON THOSE WHO WOULD DISPLACE THE COURT OF
APPEALS' INTERPRETATION.  (FN4) 

LEGISLATIVE HISTORY AND PURPOSE, HEAVILY RELIED ON BY THE COURT,
FURNISH NO REASON FOR DEPARTING FROM THE NATURAL READING OF THE ACT. 
THERE WAS VERY LITTLE DIRECT EXPLANATION OF THE "SUBSTANTIAL ECONOMIES"
PROVISION IN CONGRESS; THE MAJORITY OPINION SETS OUT IN FULL THE TWO
IMPORTANT STATEMENTS, ONE BY THE HOUSE CONFERENCE COMMITTEE (ANTE, PP.
180-181) AND THE OTHER BY SENATOR WHEELER (ANTE, P. 181).  (FN5)  THE
COMMITTEE REPORT, HIGHLY AUTHORITATIVE BUT UNILLUMINATING, SAYS MERELY
THAT THERE MUST BE "A REAL ECONOMIC NEED" TO JUSTIFY RETENTION OF AN
ADDITIONAL SYSTEM.  INDISPUTABLY, SUBSTANTIAL SAVINGS CAN BE LABELED A
REAL ECONOMIC NEED, THE MORE SO SINCE CONGRESS WAS SHARPLY CONCERNED
WITH THE LACK OF ECONOMIC JUSTIFICATION FOR MANY UTILITY COMBINATIONS. 
THAT THE COMMITTEE'S LANGUAGE IS ALSO COMPATIBLE WITH THE SEC'S READING
OF "SUBSTANTIAL ECONOMIES" DOES NO MORE THAN MAKE THAT LANGUAGE A
USELESS GUIDEPOST. 

SENATOR WHEELER'S STATEMENT, BY CONTRAST, DOES SUPPORT, IF INDEED IT
IS NOT THE SOURCE OF, THE SEC INTERPRETATION, AND NORMALLY THE VIEW OF
A PRINCIPAL SPONSOR OF AN ACT CARRIES HEAVY WEIGHT.  HERE, HOWEVER,
SENATOR WHEELER MADE HIS REMARKS AFTER THE BILL HAD FINALLY PASSED BOTH
HOUSES, AND QUITE ARGUABLY "THE VIEWS OF INDIVIDUAL MEMBERS OF THE
LEGISLATURE AS TO THE MEANING OF A STATUTE WHICH WERE NOT OFFICIALLY
COMMUNICATED TO THE LEGISLATURE PRIOR TO ITS ENACTMENT ARE NOT
COMPETENT TO BE CONSIDERED IN DETERMINING THE MEANING WHICH OUGHT TO BE
ATTRIBUTED TO THE STATUTE."  HART & SACKS, THE LEGAL PROCESS 1285
(TENT.  ED.  1958, HARVARD UNIV.).  MOREOVER, IN THIS INSTANCE SENATOR
WHEELER HAD BEEN A FIERCE OPPONENT OF ALLOWING ANY EXCEPTION AT ALL TO
THE ONE-SYSTEM PRINCIPLE, SEE 346 F.2D, AT 403, AND HAD EXCELLENT
REASON TO MINIMIZE SEVERELY THE SCOPE OF THE PRESENT PROVISION WHEN TO
DO SO COULD NO LONGER COST THE ACT VOTES.  THE SEC ITSELF IN ITS EARLY
DAYS, BEFORE THE ELEVATION OF THE WHEELER STATEMENT TO ITS PRESENT
EXAGGERATED IMPORTANCE, TOOK A FAR MORE GUARDED VIEW OF ITS WORTH. 
(FN6) 

TO SUPPORT ITS CONSTRUCTION OF THE "SUBSTANTIAL ECONOMIES" PROVISION,
THE COURT ALSO RELIES ON TWO GENERAL POLICIES ATTRIBUTED TO THE ACT AS
A WHOLE.  IT IS INITIALLY EMPHASIZED THAT THE ACT'S OVERRIDING AIM WAS
TO CONFINE HOLDING COMPANIES TO A SINGLE INTEGRATED SYSTEM WHILE
CONTROL OF ADDITIONAL SYSTEMS WAS TO BE "DECIDEDLY THE EXCEPTION"
(ANTE, P. 180).  THE MILD BUT MISLEADING INFERENCE IS THAT THE
"EXCEPTION" IS SOME MINOR, LITTLE NOTICED ADDENDUM, TO BE STRICTLY
CONSTRUED.  IN TRUTH, THE ORIGINAL, MORE STRINGENT VERSION OF SEC 11,
POPULARLY KNOWN AS THE "DEATH SENTENCE" PROVISION, WAS BITTERLY OPPOSED
AND THE "ABC" CLAUSES EXCEPTION WITH CLAUSE A OF WHICH WE NOW DEAL
(SUPRA, N. 1) WAS ADOPTED AS A CONSIDERED COMPROMISE BETWEEN QUITE
DIFFERENT HOUSE AND SENATE VERSIONS.  SEE RITCHIE, INTEGRATION OF
PUBLIC UTILITY HOLDING COMPANIES 16-19, 151 (1954).  THE ABC CLAUSES
REPRESENT PART OF THE PRICE OPENLY PAID FOR ENACTMENT, AND THERE IS NO
BASIS IN THESE EVENTS FOR A GRUDGING INTERPRETATION.  (FN7) 

FAR MORE WEIGHT IS GIVEN BY THE COURT'S OPINION TO THE ACT'S SUPPOSED
HOSTILITY TOWARD COMMON CONTROL OF GAS AND ELECTRIC UTILITY SYSTEMS
WITH ITS DANGER OF STIFLED COMPETITION.  FIRST OF ALL, THIS HOSTILITY
APPEARS TO BE AN ILLUSION.  THE HOUSE AND SENATE COMMITTEES IN
IDENTICAL LANGUAGE EXPRESSLY STATED THAT COMMON OWNERSHIP OF COMPETING
FORMS OF ENERGY WAS "A FIELD WHICH IS ESSENTIALLY A QUESTION OF STATE
POLICY"; THE PRESENT SEC 8, 15 U.S.C.  SEC 79H (1964 ED.), WAS ENACTED
TO SUPPORT THIS APPROACH BY USING FEDERAL POWER TO LIMIT COMMON
OWNERSHIP ONLY WHERE IT IS CONTRARY TO STATE LAW.  SEE S. REP. NO. 621,
74TH CONG., 1ST SESS., 29-30; H.R. REP. NO. 1318, 74TH CONG., 1ST
SESS., 14-15.  (FN8)  IN ITS DECISION IN THIS VERY CASE THE SEC STATED:
"WE DO NOT TAKE THE VIEW THAT THE ACT EXPRESSES A FEDERAL POLICY
AGAINST COMBINED GAS AND ELECTRIC OPERATIONS AS SUCH."  HOLDING COMPANY
ACT RELEASE NO. 15035, P. 15.  THIS WAS APPARENTLY SO CLEAR AT THE TIME
THE ACT PASSED THAT IN AN EARLY AND NOW-REPUDIATED DECISION THE SEC
WENT SO FAR AS TO HOLD THAT GAS AND ELECTRIC COMPANIES COULD BE
COMBINED IN THE SAME SINGLE INTEGRATED PUBLIC UTILITY SYSTEM.  AMERICAN
WATER WORKS & ELEC.  CO., 2 S.E.C. 972 (1937). 

FURTHERMORE, A CONSTRICTED READING OF THE "SUBSTANTIAL ECONOMIES"
PROVISION IS A QUITE UNSUITABLE WAY OF RESPONDING TO THE DANGERS IN
COMMON OWNERSHIP OF COMPETING TYPES OF UTILITIES.  THE PROVISION IS
EQUALLY INTENDED TO GOVERN COMMON CONTROL OF TWO OR MORE GAS SYSTEMS OR
TWO OR MORE ELECTRIC SYSTEMS AND, AT LEAST IN THE ABSTRACT, THE COURT'S
READING WILL HINDER THOSE ARRANGEMENTS AS WELL THOUGH ITS RATIONALE IS
IRRELEVANT TO THEM.  IF THE SEC IS PREPARED TO SHOW THAT FREEING A GAS
SYSTEM FROM CONTROL BY AN ELECTRIC SYSTEM WILL IMPROVE EARNINGS BY SOME
AMOUNT, THEN THIS MAY BE A LEGITIMATE OFFSET TO THE LOSSES THAT CAN BE
SHOWN, AND THERE IS LEEWAY FOR ROUGH CALCULATIONS AND FOR ESTIMATES
BASED ON STUDYING PAST SEPARATIONS.  SEE RITCHIE, INTEGRATION OF PUBLIC
UTILITY HOLDING COMPANIES 143-147 (1954).  BUT TO DISPENSE WITH THE
PROOF AND DISREGARD THE BASIC TEST OF "SUBSTANTIAL ECONOMIES" IS TO
UNDO CONGRESS' OWN CAREFUL COMPROMISE OF THE VARIOUS CONFLICTING POLICY
INTERESTS.  (FN9) 

THERE REMAINS TO BE ANSWERED ONLY THE COURT'S CLAIM THAT ITS READING
OF THE STATUTE IS "SUPPORTED BY CONSISTENT ADMINISTRATIVE PRACTICE"
(ANTE, P. 182, N. 12).  ANALYSIS OF THE SEC DECISIONS SHOWS THAT THE
COURT IS MISTAKEN.  THE FIRST IMPORTANT CONSTRUCTION OF "SUBSTANTIAL
ECONOMIES" CAME IN NORTH AMERICAN CO., 11 S.E.C. 194, DECIDED IN 1942
ONLY SEVEN YEARS AFTER THE ACT TOOK EFFECT.  REJECTING THE ASSERTION
THAT ANY SAVING BEYOND A WHOLLY NOMINAL ONE WOULD DO, THE SEC STATED:
"THE NORMAL AND USUAL MEANING OF THE WORD 'SUBSTANTIAL' IS A MEANING
CONNOTING 'IMPORTANT.'  AND WE THINK THAT THIS NORMAL AND USUAL MEANING
IS COMPELLED HERE."  ID., AT 209.  AT LEAST FOUR SUBSEQUENT DECISIONS
CITE NORTH AMERICAN AND ADOPT ITS "IMPORTANCE" TEST, A NATURAL READING
OF THE ACT RATHER THAN THE UNUSUAL AND SPECIALIZED ONE ADOPTED TODAY. 
CITIES SERV. POWER & LIGHT CO., 14 S.E.C. 28, 37 (1943); MIDDLE WEST
CORP., 15 S.E.C. 309, 319 (1944); CITIES SERV. CO., 15 S.E.C. 962, 984
(1944); AMERICAN GAS & ELEC.  CO., 21 S.E.C. 575, 597 (1945).  ALSO
DURING THIS FIRST DECADE OF THE ACT'S ENFORCEMENT TWO DECISIONS,
INCLUDING ONE JUST CITED, SAID THAT INABILITY TO OPERATE INDEPENDENTLY
WAS "ONE OF THE GUIDES WHICH (AMONG OTHERS) CONGRESS INTENDED TO BE
USED  ...  ."  CITIES SERV. POWER & LIGHT CO., 14 S.E.C. 28, 62 (1943);
COMMONWEALTH & SOUTHERN CORP., 26 S.E.C. 464, 489 (1947).  IN ONE OTHER
CASE THE SEC STATED THE LOSS MUST BE ONE WHICH WOULD "SERIOUSLY IMPAIR
...  EFFECTIVE OPERATIONS."  ENGINEERS PUB. SERV. CO., 12 S.E.C. 41, 61
(1942).    THE MAJORITY OPINION SAYS THAT THE RESPONDENT "CONCEDES"
THAT THE COMMISSION HAS SINCE 1948 ARTICULATED ITS PRESENT TEST, AND
THREE SEC DECISIONS ARE THEN CITED (ANTE, P. 182, N. 12).  BUT WITH THE
ENGINEERS CASE JUST CITED AS A POSSIBLE ADDITION, THESE ARE THE ONLY
THREE DECISIONS UNTIL THE PRESENT ONE TO STATE THE COURT'S TEST OUT OF
THE 15 OR MORE DECISIONS APPLYING SEC 11(B)(1), TAKING THE ONES ALREADY
MENTIONED WITH THOSE THAT ESTABLISHED NO TEST.  FURTHERMORE, THE
RESPONDENT ASSERTS THAT THE THREE SEC DECISIONS STATING ITS PRESENT
TEST INVOLVED A VERY SMALL PERCENTAGE OF THE ASSETS IT HAS ORDERED
DIVESTED, AND EVEN IN THOSE THREE CASES IT IS NOT CLEAR THAT THE TEST
WAS DETERMINATIVE.  BRIEF, PP. 47-48.  IN SUM, WHETHER OR NOT THE SEC'S
EARLY DECISIONS MAY BE SAID ACTUALLY TO REFUTE THE TEST NOW URGED,
CERTAINLY THERE IS NO CONSISTENT ADMINISTRATIVE PRACTICE LENDING IT ANY
REAL WEIGHT.  BEFORE LEAVING PRECEDENT, IT SHOULD ALSO BE NOTED THAT
THE FIRST AND FIFTH CIRCUITS HAVE SQUARELY REJECTED THE SEC'S PRESENT
INTERPRETATION AND THAT THE SECOND CIRCUIT HAS APPROVED ITS
"IMPORTANCE" GLOSS, WHILE ONLY THE DISTRICT OF COLUMBIA CIRCUIT HAS
UPHELD THE PRESENT READING.  (FN10) 

TO CONCLUDE, I THINK IT SHOULD BE NOTED THAT THE COURT'S DEPARTURE
FROM THE STATUTE IS NOT JUST AN ABSTRACT LEGAL ERROR BUT DOES
IMMEDIATE, TANGIBLE HARM IN A MOST PRACTICAL SENSE.  THE ANNUAL LOSSES
WHICH RESPONDENT HAS FORECAST FOR ITS GAS SYSTEM BECAUSE OF SEPARATION
EXCEED $1,000,000, A FIGURE THE SEC HAS QUESTIONED IN PART BUT NOT YET
PROPERLY CONSIDERED.  THE RESPONDENT'S ANALYSIS ALSO SHOWS ANNUAL
LOSSES OF $800,000 FOR THE ELECTRICAL SYSTEM, ALTHOUGH THE SEC DEEMS
IRRELEVANT LOSSES TO THE PRIMARY SYSTEM AND THE COURT OF APPEALS DID
NOT REACH THIS ISSUE.  THE HEAVY LOSSES IN THIS CASE WILL PRESUMABLY BE
BORNE BY INVESTORS AND CONSUMERS IF THE FIGURES ARE ACCURATE AND
SEPARATION OCCURS; IT IS NOTEWORTHY THAT THE MASSACHUSETTS DEPARTMENT
OF PUBLIC UTILITIES APPEARED AT THE HEARINGS IN THIS CASE TO OPPOSE
DIVESTITURE.  THE SEC HAS WIDE LATITUDE IN DECIDING HOW TO GAUGE AND
COMPUTE "SUBSTANTIAL ECONOMIES" AND IT HAS USED THAT FREEDOM IN THE
PAST.  (FN11)  WHAT THE COMMISSION HAS NO RIGHT TO DO, HOWEVER, IS TO
SUBSTITUTE TO THE DETRIMENT OF BUSINESS INTERESTS AND THE PUBLIC ALIKE
A QUITE DIFFERENT STANDARD FOR THE ONE ENACTED BY CONGRESS.  NEITHER
DOES THIS COURT HAVE THAT RIGHT.  I WOULD AFFIRM THE COURT OF APPEALS'
WELL CONSIDERED DECISION. 

FN1  49 STAT. 820, 15 U.S.C. SEC 79KB)(1).  THIS SUBSECTION PROVIDES
THAT A HOLDING COMPANY SHALL BE LIMITED TO "A SINGLE INTEGRATED PUBLIC
UTILITY SYSTEM," PROVIDED THAT THE COMMISSION SHALL PERMIT CONTROL OF
ADDITIONAL SYSTEMS IF: 

"(A)  EACH OF SUCH ADDITIONAL SYSTEMS CANNOT BE OPERATED AS AN
INDEPENDENT SYSTEM WITHOUT THE LOSS OF SUBSTANTIAL ECONOMIES WHICH CAN
BE SECURED BY THE RETENTION OF CONTROL BY SUCH HOLDING COMPANY OF SUCH
SYSTEM: 

"(B)  ALL OF SUCH ADDITIONAL SYSTEMS ARE LOCATED IN ONE STATE, OR IN
ADJOINING STATES, OR IN A CONTIGUOUS FOREIGN COUNTRY; AND: 

"(C)  THE CONTINUED COMBINATION OF SUCH SYSTEMS UNDER THE CONTROL OF
SUCH HOLDING COMPANY IS NOT SO LARGE (CONSIDERING THE STATE OF THE ART
AND THE AREA OR REGION AFFECTED) AS TO IMPAIR THE ADVANTAGES OF
LOCALIZED MANAGEMENT, EFFICIENT OPERATION, OR THE EFFECTIVENESS OF
REGULATION." 

FN2  I SAY "SEEMS" TO HOLD BOTH BECAUSE TWO STATEMENTS IN THE OPINION
(ANTE, PP. 179, 184-185) EMPHASIZE A SUPPOSED OFFSETTING ECONOMIC
SAVING TO BE FOUND IN DIVESTITUTE AND BECAUSE THE SEC HAS STATED THE
TEST IN THIS CASE IN VARYING TERMS. 

FN3  THIS COULD IN FACT HAVE BEEN ACCOMPLISHED SIMPLY BY CHOPPING OFF
THE LAST HALF OF THE PRESENT, CONTROLLING CLAUSE (SUPRA, N. 1), LEAVING
THE CONDITION TO READ "EACH OF SUCH ADDITIONAL SYSTEMS CANNOT BE
OPERATED AS AN INDEPENDENT SYSTEM" AND OMITTING WHOLLY THE QUALIFYING
LANGUAGE WHICH BEGINS "WITHOUT THE LOSS OF SUBSTANTIAL ECONOMIES." 

FN4  "IT  ...  IS WRONG TO DENY THE NATURAL MEANING OF LANGUAGE ITS
PROPER PRIMACY; LIKE CARDOZO'S 'METHOD OF PHILOSPHY,' IT 'IS THE HEIR
PRESUMPTIVE.  A PRETENDER TO THE TITLE WILL HAVE TO FIGHT HIS WAY.'" 
FRIENDLY, MR. JUSTICE FRANKFURTER AND THE READING OF STATUTES, IN FELIX
FRANKFURTER:  THE JUDGE 40 (1964). 

FN5  ONE OTHER LEGISLATIVE COMMENT ON THE PROVISION FAVORS THE
COMMISSION, 79 CONG. REC. 14165-14166 (REMARKS OF MR. COOPER), BUT THE
COURT OF APPEALS PROPERLY DISREGARDED IT AS AN OPPONENT'S ATTEMPT TO
BLACKEN THE ACT, CF. LABOR BOARD V. FRUIT PACKERS, 377 U.S. 58, 66, AND
THE SEC NO LONGER RELIES UPON IT IN ITS BRIEF. 

FN6  THE STATEMENT WAS QUOTED AS CUMULATIVE, MINOR EVIDENCE ON
ANOTHER MATTER IN 1941, THE SEC ADMITTING THAT IT "MAY NOT STRICTLY BE
CONSIDERED PART OF THE LEGISLATIVE HISTORY" BUT SAYING IT DESERVED
"SOME CONSIDERATION."  ENGINEERS PUB. SERV. CO., 9 S.E.C. 764, 782
783.  IN 1942, IT WAS QUOTED AS BEARING ON THE PRESENT QUESTION BUT ITS
TEST WAS NOT ADOPTED.  NORTH AMERICAN CO., 11 S.E.C. 194, 209.  THE
FOLLOWING YEAR THE STATEMENT WAS THOUGHT TO REVEAL "ONE" OF THE VARIOUS
CRITERIA TO BE USED ALONG WITH OTHERS.  CITIES SERV.  POWER & LIGHT
CO., 14 S.E.C. 28, 62. 

FN7  FOR ITS "DECIDEDLY THE EXCEPTION" CHARACTERIZATION, THE COURT
CITES (ANTE, P. 180, N. 9) NORTH AMERICAN CO. V. SEC, 327 U.S. 686. 
THAT DECISION IMPARTED NO SUCH GLOSS TO THE ABC CLAUSES BUT GAVE A MOST
CURSORY SUMMARY IN PASSING ON THE CONSTITUTIONALITY OF SEC 11(B)(1). 

FN8  THE COURT'S OPINION (ANTE, P. 184, N. 14) QUOTES FROM P. 7 OF
THE ABOVE-CITED SENATE REPORT, BORROWING FROM IT LANGUAGE THAT SUGGESTS
SEC 11 WAS FORWARDING THE SAME POLICY AS SEC 8.  WHAT THE COURT
OVERLOOKS IS THAT THIS DISCUSSION WAS DIRECTED TO AN EARLIER AND VERY
DIFFERENT VERSION OF SEC 8, IN WHICH IT ALSO EMBODIED OTHER
RESTRICTIONS ON HOLDING COMPANY OWNERSHIP HAVING NOTHING TO DO WITH
COMMON CONTROL OF GAS AND ELECTICITY BUT CLOSELY RELATED TO SEC 11'S
POLICY OF FEDERALLY IMPOSED SIMPLIFICATION.  A READING OF THE COURT'S
QUOTATION IN CONTEXT ALONG WITH THE RELEVANT VERSION OF S. 2796, 74TH
CONG., 1ST SESS., SECS 8, 11 (AS REPORTED ON MAY 13, 1935), WILL
QUICKLY SHOW THAT ITS RELIANCE IS MISPLACED.  THE MAJORITY'S OTHER
CITATIONS IN THE SAME FOOTNOTE ARE ALSO INFIRM.  THE FIRST TWO
CITATIONS ARE STATEMENTS ON BEHALF OF THE RULE THAT IS NOW SEC 8, WHICH
ALLOWS THE STATES TO DECIDE THE ISSUE.  THE REMAINING CITATION TO THE
SENATE HEARINGS DOES INDEED REVEAL ONE SENATOR'S GENERAL CONCERN WITH
COMMON OWNERSHIP'S IMPACT ON COMPETITION; THE RESPONDENT STATES IT IS
"THE ONLY SUCH REFERENCE IN THE ENTIRE SENATE HEARING."  BRIEF, P. 37,
N. 45. 

FN9  IT SHOULD AGAIN BE REMEMBERED ALSO THAT THE PRESENT PROVISION IS
NOT THE ONLY LEGISLATIVE SAFEGUARD.  EVEN TO OBTAIN OWNERSHIP OVER TWO
SYSTEMS, A HOLDING COMPANY MUST, ALONG WITH PROVING "SUBSTANTIAL
ECONOMIES," SHOW THAT THERE IS GEOGRAPHICAL UNITY AND THAT THE
COMBINATION IS NOT SO LARGE AS TO IMPAIR "THE ADVANTAGES OF LOCALIZED
MANAGEMENT, EFFICIENT OPERATION, OR THE EFFECTIVENESS OF REGULATION"
(SUPRA, N. 1).  SECTION 8 (SUPRA, P. 190) ACTS AS A FURTHER RESTRAINT
IN SOME CASES.  OTHER SECTIONS OF THE ACT REGULATE TRANSACTIONS BETWEEN
UTILITY COMPANIES AND REQUIRE DISCLOSURE OF REPORTS AND MAINTENANCE OF
ACCOUNTING DATA AND OTHER RECORDS.  SECS 12(F), 13(A), 14, 15, 15
U.S.C. SECS 79LF), 79MA), 79N, 79O (1964 ED.). 

FN10  THE FIFTH CIRCUIT CASE IS LOUISIANA PUB. SERV. COMM'N V. SEC,
235 F.2D, 167.  IT WAS REVERSED HERE ON JURISDICTIONAL GROUNDS, 353
U.S. 368, WHICH DOES NOT OF COURSE IMPAIR ITS STATEMENT ON THE MERITS. 
THE SECOND CIRCUIT DECISION IS NORTH AMERICAN CO. V. SEC, 133 F.2D 148,
AFF'D ON CONSTITUTIONAL QUESTIONS, 327 U.S. 686.  THE DISTRICT OF
COLUMBIA DECISION IS PHILADELPHIA CO. V. SEC, 85 U.S. APP. D.C. 327,
177 F.2D 720; THAT COURT THOUGHT IT WAS FOLLOWING ITS EARLIER TWO-TO
ONE DECISION IN ENGINEERS PUB. SERV. CO. V. SEC, 78 U.S. APP. D.C. 199,
138 F.2D 936, CERT. GRANTED, 322 U.S. 723, VACATED AS MOOT, 332 U.S.
788, BUT ENGINEERS IS AMBIGUOUS. 

FN11  AMONG EXAMPLES - AND I DO NOT MEAN TO APPROVE OR DISAPPROVE THE
ONES I CITE - ARE SEC RULINGS THAT AS NOTED IT WILL NOT CONSIDER LOSSES
TO THE PRINCIPAL SYSTEM, GENERAL PUBL.  UTILS.  CORP., 32 S.E.C. 807,
838-839 (1951); THAT IT WILL NOT CONSIDER TAX LOSSES AS A VERY
SIGNIFICANT FACTOR, CITIES SERV. CO., 15 S.E.C. 962, 985 (1944); THAT
IT WILL GIVE ONLY LIMITED WEIGHT TO CAPITAL COSTS OF DIVESTITURE,
EASTERN UTILS.  ASSOCIATES, 31 S.E.C. 329, 349 (1950); AND THAT IT WILL
OFFSET PREDICTED GAINS RESULTING FROM SEPARATION AGAINST THE LOSSES,
NORTH AMERICAN CO., 18 S.E.C. 611 (1945). 
..END :























ASHTON V. KENTUCKY 384 U.S. 195 


NO. 619.  ARGUED APRIL 28, 1966.  - DECIDED MAY 16, 1966.  - 405 S.W.2D
562, REVERSED. 


PETITIONER WAS INDICTED AND CONVICTED FOR VIOLATING THE KENTUCKY
COMMON-LAW CRIME OF CRIMINAL LIBEL.  THE INDICTMENT CHARGED "THE
OFFENSE OF CRIMINAL LIBEL" COMMITTED "BY PUBLISHING A FALSE AND
MALICIOUS PUBLICATION WHICH TENDS TO DEGRADE OR INJURE" THREE NAMED
PERSONS.  THE TRIAL COURT CHARGED THAT "CRIMINAL LIBEL IS DEFINED AS
ANY WRITING CALCULATED TO CREATE DISTURBANCES OF THE PEACE, CORRUPT THE
PUBLIC MORALS, OR LEAD TO ANY ACT, WHICH, WHEN DONE, IS INDICTABLE." 
THE COURT ALSO CHARGED THAT MALICE AND FALSITY WERE ESSENTIAL ELEMENTS
OF THE OFFENSE.  THE KENTUCKY COURT OF APPEALS, IN AFFIRMING THE
CONVICTION, RULED THAT BREACH OF THE PEACE IS NOT A CONSTITUTIONAL
BASIS FOR IMPOSING CRIMINAL LIABILITY, AND HELD THAT COMMON-LAW
CRIMINAL LIBEL IS "THE PUBLICATION OF A DEFAMATORY STATEMENT ABOUT
ANOTHER WHICH IS FALSE, WITH MALICE."  HELD: 

1.  WHERE AN ACCUSED IS CONVICTED UNDER A BROAD CONSTRUCTION OF A LAW
WHICH WOULD MAKE IT UNCONSTITUTIONAL, THE CONVICTION CANNOT BE
SUSTAINED ON APPEAL BY A LIMITING CONSTRUCTION WHICH ELIMINATES THE
UNCONSTITUTIONAL FEATURES OF THE LAW.  SHUTTLESWORTH V. BIRMINGHAM, 382
U.S. 87.  P. 198. 

2.  BECAUSE THE OFFENSE WAS DEFINED AT TRIAL AS THE PUBLICATION OF A
WRITING CALCULATED TO DISTURB THE PEACE, PETITIONER WAS JUDGED BY AN
UNCONSTITUTIONALLY VAGUE STANDARD WHICH REQUIRED CALCULATIONS AS TO THE
REACTION OF THE AUDIENCE TO WHICH THE PUBLICATION WAS ADDRESSED. 
CANTWELL V. CONNECTICUT, 310 U.S. 296; TERMINIELLO V. CHICAGO, 337 U.S.
1.  PP. 198-201. 

3.  ALTHOUGH VAGUE LAWS IN ANY SETTING ARE IMPERMISSIBLE, LAWS WHICH
TOUCH ON FIRST AMENDMENT RIGHTS MUST BE CAREFULLY AND NARROWLY DRAWN. 
PP. 200-201. 

ASHTON V. KENTUCKY. 

CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS SENTENCED TO SIX MONTHS IN PRISON AND FINED $3,000 FOR
PRINTING A PAMPHLET FOUND TO BE PROHIBITED BY THE COMMON LAW OF
CRIMINAL LIBEL IN KENTUCKY.  THE KENTUCKY COURT OF APPEALS, WITH THREE
JUDGES DISSENTING, AFFIRMED PETITIONER'S CONVICTION.  405 S.W.2D 562. 
WE GRANTED CERTIORARI (382 U.S. 971) AND REVERSE. 

PETITIONER WENT TO HAZARD, KENTUCKY, IN 1963, WHERE A BITTER LABOR
DISPUTE RAGED, TO APPEAL FOR FOOD, CLOTHING AND AID FOR UNEMPLOYED
MINERS.  THE CHALLENGED PAMPHLET, WHICH HAD A LIMITED CIRCULATION,
STATED CONCERNING SAM L. LUTTRELL, CHIEF OF POLICE OF HAZARD: 

"SIX WEEKS AGO I WITNESSED A PLOT TO KILL THE ONE PRO-STRIKE CITY
POLICEMAN ON THE HAZARD FORCE.  THREE OF THE OTHER COPS WERE AFTER HIM
WHILE HE WAS ON NIGHT-DUTY.  IT TOOK 5 PICKETS GUARDING HIM ALL NIGHT
LONG TO KEEP HIM FROM GETTING KILLED, BUT THEY COULD NOT PREVENT HIM
FROM BEING FIRED, WHICH HE WAS THREE WEEKS AGO.  ANOTHER NOTE ON THE
CITY POLICE:  THE CHIEF OF THE FORCE, BUD LUTTRELL, HAS A JOB ON THE
SIDE OF GUARDING AN OPERATOR'S HOME FOR $100 A WEEK.  ITS AGAINST THE
LAW FOR A PEACE OFFICER TO TAKE PRIVATE JOBS." 

IT SAID CONCERNING CHARLES E. COMBS, THE SHERIFF: 

"THE HIGH SHERIFF HAS HIRED 72 DEPUTIES AT ONE TIME, MORE THAN EVER
BEFORE IN HISTORY; MOST OF THEM HIRED BECAUSE THEY WANTED TO CARRY
GUNS.  HE, SHERIFF COMBS, IS ALSO A MINE OPERATOR - IN A RECENT COURT
DECISION HE WAS FINED $5,000 FOR INTENTIONALLY BLINDING A BOY WITH TEAR
GAS AND BEATING HIM WHILE HE WAS LOCKED IN A JAIL CELL WITH HIS HANDS
CUFFED.  THE BOY LOST THE SIGHT OF ONE EYE COMPLETELY AND IS NEARLY
BLIND IN THE OTHER.  BEFORE THE TRIAL SHERIFF COMBS OFFERED THE BOY
$75,000 TO KEEP IT OUT OF COURT, BUT HE REFUSED.  THEN FOR A FEW
THOUSAND DOLLARS COMBS PROBABLY BOUGHT OFF THE JURY.  THE CASE IS BEING
APPEALED BY THE BOY TO A HIGHER COURT - HE WANTS $200,000.  COMBS IS
NOW INDICTED FOR THE MURDER OF A MAN - VOLUNTARY MANSLAUGHTER.  YET HE
IS STILL THE LAW IN THIS COUNTY AND HAS THE SUPPORT OF THE RICH MAN
BECAUSE HE WILL FIGHT THE PICKETS AND THE STRIKE.  THE SAME IS TRUE OF
THE STATE POLICE.  THEY ESCORT THE SCABS INTO THE MINES AND HOLD THE
PICKETS AT GUNPOINT." 

AND IT SAID RESPECTING MRS. W.P. NOLAN, CO-OWNER OF THE HAZARD
HERALD: 

"THE TOWN NEWSPAPER, THE HAZARD HERALD, HAS HOLLERED THAT 'THE
COMMIES HAVE COME TO THE MOUNTAINS OF KENTUCKY' AND ARE LEADING THE
STRIKE.  THE HERALD WAS THE RECIPIENT OF OVER $14,000 CASH AND SEVERAL
TRUCKLOADS OF FOOD AND CLOTHING WHICH WERE SENT AS THE RESULT OF A CBS
TV SHOW JUST BEFORE CHRISTMAS.  THE STORY WAS ON THE STRIKE AND AID WAS
SUPPOSED TO BE SENT TO THE PICKETS IN CARE OF THE HAZARD HERALD,
HOWEVER THE EDITOR, MRS. W.P. NOLAN, IS VEHEMENTLY AGAINST LABOR - SHE
HAS SAID THAT SHE WOULD RATHER GIVE THE INCOMING AID TO THE MERCHANTS
IN TOWN THAN TO THE MINERS.  APPARENTLY THAT IS WHAT SHE HAS DONE, FOR
ONLY $1100 OF THE MONEY HAS COME TO THE PICKETS, AND NONE OF THE FOOD
AND CLOTHES.  THEY ARE NOW EITHER STILL UNDER LOCK AND KEY, OR HAVE
BEEN GIVEN OUT TO THE SCABS AND OTHERS STILL." 

THE INDICTMENT CHARGED "THE OFFENSE OF CRIMINAL LIBEL" COMMITTED "BY
PUBLISHING A FALSE AND MALICIOUS PUBLICATION WHICH TENDS TO DEGRADE OR
INJURE" THE THREE NAMED PERSONS.  THE TRIAL COURT CHARGED THAT
"CRIMINAL LIBEL IS DEFINED AS ANY WRITING CALCULATED TO CREATE
DISTURBANCES OF THE PEACE, CORRUPT THE PUBLIC MORALS, OR LEAD TO ANY
ACT, WHICH, WHEN DONE, IS INDICTABLE." 

THE COURT ALSO CHARGED THAT MALICE IS "AN ESSENTIAL ELEMENT OF THIS
OFFENSE" AND FALSITY AS WELL. 

THE COURT OF APPEALS IN AFFIRMING THE JUDGMENT OF CONVICTION ADOPTED
A DIFFERENT DEFINITION OF THE OFFENSE OF CRIMINAL LIBEL FROM THAT GIVEN
THE JURY BY THE TRIAL COURT.  IT RULED THAT THE ELEMENT OF BREACH OF
THE PEACE WAS NO LONGER A CONSTITUTIONAL BASIS FOR IMPOSING CRIMINAL
LIABILITY.  IT HELD THAT THE COMMON-LAW CRIME OF CRIMINAL LIBEL IN
KENTUCKY IS "THE PUBLICATION OF A DEFAMATORY STATEMENT ABOUT ANOTHER
WHICH IS FALSE, WITH MALICE." 

WE INDICATED IN SHUTTLESWORTH V. BIRMINGHAM, 382 U.S. 87, THAT WHERE
AN ACCUSED IS TRIED AND CONVICTED UNDER A BROAD CONSTRUCTION OF AN ACT
WHICH WOULD MAKE IT UNCONSTITUTIONAL, THE CONVICTION CANNOT BE
SUSTAINED ON APPEAL BY A LIMITING CONSTRUCTION WHICH ELIMINATES THE
UNCONSTITUTIONAL FEATURES OF THE ACT, AS THE TRIAL TOOK PLACE UNDER THE
UNCONSTITUTIONAL CONSTRUCTION OF THE ACT.  WE THINK THAT PRINCIPLE
APPLIES HERE.  PETITIONER WAS TRIED AND CONVICTED ACCORDING TO THE
TRIAL COURT'S UNDERSTANDING OF KENTUCKY LAW, WHICH DEFINED THE OFFENSE
AS "ANY WRITING CALCULATED TO CREATE DISTURBANCES OF THE PEACE  ...
." 

WE AGREE WITH THE DISSENTERS IN THE COURT OF APPEALS WHO STATED THAT:
"  ...  SINCE THE ENGLISH COMMON LAW OF CRIMINAL LIBEL IS INCONSISTENT
WITH CONSTITUTIONAL PROVISIONS, AND SINCE NO KENTUCKY CASE HAS
REDEFINED THE CRIME IN UNDERSTANDABLE TERMS, AND SINCE THE LAW MUST BE
MADE ON A CASE TO CASE BASIS, THE ELEMENTS OF THE CRIME ARE SO
INDEFINITE AND UNCERTAIN THAT IT SHOULD NOT BE ENFORCED AS A PENAL
OFFENSE IN KENTUCKY." 

THE CASE IS CLOSE TO CANTWELL V. CONNECTICUT, 310 U.S. 296, INVOLVING
A CONVICTION OF THE COMMON-LAW CRIME OF INCITING A BREACH OF THE
PEACE.  THE ACCUSED WAS CHARGED WITH HAVING PLAYED IN THE HEARING OF
CATHOLICS IN A PUBLIC PLACE A PHONOGRAPH RECORD ATTACKING THEIR
RELIGION AND CHURCH.  IN REVERSING WE SAID:  "THE OFFENSE KNOWN AS
BREACH OF THE PEACE EMBRACES A GREAT VARIETY OF CONDUCT DESTROYING OR
MENACING PUBLIC ORDER AND TRANQUILITY.  IT INCLUDES NOT ONLY VIOLENT
ACTS BUT ACTS AND WORDS LIKELY TO PRODUCE VIOLENCE IN OTHERS  ...  .
HERE WE HAVE A SITUATION ANALOGOUS TO A CONVICTION UNDER A STATUTE
SWEEPING IN A GREAT VARIETY OF CONDUCT UNDER A GENERAL AND INDEFINITE
CHARACTERIZATION, AND LEAVING TO THE EXECUTIVE AND JUDICIAL BRANCHES
TOO WIDE A DISCRETION IN ITS APPLICATION."  ID., AT 308. 

IN TERMINIELLO V. CHICAGO, 337 U.S. 1, WE HELD UNCONSTITUTIONAL AN
ORDINANCE WHICH AS CONSTRUED PUNISHED AN UTTERANCE AS A BREACH OF THE
PEACE "IF IT STIRS THE PUBLIC TO ANGER, INVITES DISPUTE, BRINGS ABOUT A
CONDITION OF UNREST, OR CREATES A DISTURBANCE."  ID., AT 3.  WE SET
ASIDE THE CONVICTION, SAYING: 

"THE VITALITY OF CIVIL AND POLITICAL INSTITUTIONS IN OUR SOCIETY
DEPENDS ON FREE DISCUSSION.  AS CHIEF JUSTICE HUGHES WROTE IN DE JONGE
V. OREGON, 299 U.S. 353, 365, IT IS ONLY THROUGH FREE DEBATE AND FREE
EXCHANGE OF IDEAS THAT GOVERNMENT REMAINS RESPONSIVE TO THE WILL OF THE
PEOPLE AND PEACEFUL CHANGE IS EFFECTED.  THE RIGHT TO SPEAK FREELY AND
TO PROMOTE DIVERSITY OF IDEAS AND PROGRAMS IS THEREFORE ONE OF THE
CHIEF DISTINCTIONS THAT SETS US APART FROM TOTALITARIAN REGIMES. 

"ACCORDINGLY A FUNCTION OF FREE SPEECH UNDER OUR SYSTEM OF GOVERNMENT
IS TO INVITE DISPUTE.  IT MAY INDEED BEST SERVE ITS HIGH PURPOSE WHEN
IT INDUCES A CONDITION OF UNREST, CREATES DISSATISFACTION WITH
CONDITIONS AS THEY ARE, OR EVEN STIRS PEOPLE TO ANGER.  SPEECH IS OFTEN
PROVOCATIVE AND CHALLENGING.  IT MAY STRIKE AT PREJUDICES AND
PRECONCEPTIONS AND HAVE PROFOUND UNSETTLING EFFECTS AS IT PRESSES FOR
ACCEPTANCE OF AN IDEA."  ID., AT 4. 

CONVICTIONS FOR "BREACH OF THE PEACE" WHERE THE OFFENSE WAS
IMPRECISELY DEFINED WERE SIMILARLY REVERSED IN EDWARDS V. SOUTH
CAROLINA, 372 U.S. 229, 236-238, AND COX V. LOUISIANA, 379 U.S. 536,
551-552.  THESE DECISIONS RECOGNIZE THAT TO MAKE AN OFFENSE OF CONDUCT
WHICH IS "CALCULATED TO CREATE DISTURBANCES OF THE PEACE" LEAVES WIDE
OPEN THE STANDARD OF RESPONSIBILITY.  IT INVOLVES CALCULATIONS AS TO
THE BOILING POINT OF A PARTICULAR PERSON OR A PARTICULAR GROUP, NOT AN
APPRAISAL OF THE NATURE OF THE COMMENTS PER SE.  THIS KIND OF CRIMINAL
LIBEL "MAKES A MAN A CRIMINAL SIMPLY BECAUSE HIS NEIGHBORS HAVE NO SELF
CONTROL AND CANNOT REFRAIN FROM VIOLENCE."  CHAFEE, FREE SPEECH IN THE
UNITED STATES 151 (1954). 

HERE, AS IN THE CASES DISCUSSED ABOVE, WE DEAL WITH FIRST AMENDMENT
RIGHTS.  VAGUE LAWS IN ANY AREA SUFFER A CONSTITUTIONAL INFIRMITY. 
(FN1)  WHEN FIRST AMENDMENT RIGHTS ARE INVOLVED, WE LOOK EVEN MORE
CLOSELY LEST, UNDER THE GUISE OF REGULATING CONDUCT THAT IS REACHABLE
BY THE POLICE POWER, FREEDOM OF SPEECH OR OF THE PRESS SUFFER.  (FN2)
WE SAID IN CANTWELL V. CONNECTICUT, SUPRA, THAT SUCH A LAW MUST BE
"NARROWLY DRAWN TO PREVENT THE SUPPOSED EVIL," 310 U.S., AT 307, AND
THAT A CONVICTION FOR AN UTTERANCE "BASED ON A COMMON LAW CONCEPT OF
THE MOST GENERAL AND UNDEFINED NATURE," ID., AT 308, COULD NOT STAND. 

ALL THE INFIRMITIES OF THE CONVICTION OF THE COMMON-LAW CRIME OF
BREACH OF THE PEACE AS DEFINED BY CONNECTICUT JUDGES ARE PRESENT IN
THIS CONVICTION OF THE COMMON-LAW CRIME OF CRIMINAL LIBEL AS DEFINED BY
KENTUCKY JUDGES.  REVERSED. 

FN1  INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S. 216; COLLINS
V. KENTUCKY, 234 U.S. 634; UNITED STATES V. COHEN GROCERY CO., 255 U.S.
81; CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385; CLINE V. FRINK
DAIRY CO., 274 U.S. 445; SMITH V. CAHOON, 283 U.S. 553; CHAMPLIN
REFINING CO. V. COMMISSION, 286 U.S. 210; LANZETTA V. NEW JERSEY, 306
U.S. 451; WRIGHT V. GEORGIA, 373 U.S. 284; GIACCIO V. PENNSYLVANIA, 382
U.S. 399.  CF. SCULL V. VIRGINIA, 359 U.S. 344; RALEY V. OHIO, 360 U.S.
423. 

FN2  STROMBERG V. CALIFORNIA, 283 U.S. 359; HERNDON V. LOWRY, 301
U.S. 242; THORNHILL V. ALABAMA, 310 U.S. 88; WINTERS V. NEW YORK, 333
U.S. 507; SMITH V. CALIFORNIA, 361 U.S. 147; CRAMP V. BOARD OF PUBLIC
INSTRUCTION, 368 U.S. 278; NAACP V. BUTTON, 371 U.S. 415; BAGGETT V.
BULLITT, 377 U.S. 360; DOMBROWSKI V. PFISTER, 380 U.S. 479. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 
..END :
















PURE OIL CO. V. SUAREZ 384 U.S. 202 


NO. 692.  ARGUED APRIL 19, 1966.  - DECIDED MAY 16, 1966.  - 346 F.2D
890, AFFIRMED. 


PROVISION FIXING VENUE OF ACTIONS UNDER JONES ACT IN DISTRICT WHERE
THE DEFENDANT EMPLOYER RESIDES (I.E., IN CASE OF CORPORATION, IS
INCORPORATED) OR HIS PRINCIPAL OFFICE IS LOCATED HELD EXPANDED BY THE
LATER GENERAL VENUE STATUTE, 28 U.S.C. SEC 1391(C), SO THAT A
CORPORATION, IN THE ABSENCE OF CONTRARY STATUTORY RESTRICTIONS, MAY
ALSO BE SUED IN DISTRICT WHERE IT DOES BUSINESS.  FOURCO GLASS CO. V.
TRANSMIRRA PRODS.  CORP., 353 U.S. 222, DISTINGUISHED.  PP. 202-207. 

PURE OIL CO. V. SUAREZ. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT SUAREZ IS A SEAMAN WHO WAS EMPLOYED ON THE S.S. PURE OIL,
OWNED AND OPERATED BY PETITIONER, PURE OIL COMPANY.  SUAREZ BROUGHT
THIS ACTION AGAINST THE COMPANY IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA TO RECOVER DAMAGES FOR PERSONAL
INJURIES ALLEGEDLY SUFFERED IN THE COURSE OF HIS EMPLOYMENT.  HE SUED
IN NEGLIGENCE UNDER THE JONES ACT, 41 STAT. 1007, 46 U.S.C. SEC 688
(1964 ED.), AND ALTERNATIVELY ON THE THEORY THAT THE VESSEL WAS
UNSEAWORTHY.  THE PURE OIL COMPANY MOVED TO TRANSFER THE CASE TO THE
NORTHERN DISTRICT OF ILLINOIS ON THE GROUND THAT VENUE WAS IMPROPER IN
FLORIDA.  THE DISTRICT COURT DENIED THE MOTION, CERTIFYING THE QUESTION
OF VENUE FOR INTERLOCUTORY APPEAL TO THE COURT OF APPEALS UNDER 28
U.S.C. SEC 1292(B) (1964 ED.).  THAT COURT AFFIRMED THE RULING OF THE
DISTRICT COURT, 346 F.2D 890.  CERTIORARI WAS GRANTED, 382 U.S. 972, IN
ORDER TO DETERMINE WHETHER THE DECISION BELOW IS INCONSISTENT WITH THIS
COURT'S DECISION IN FOURCO GLASS CO. V. TRANSMIRRA PRODS.  CORP., 353
U.S. 222, AND TO RESOLVE A CONFLICT AMONG THE CIRCUITS ON THAT SCORE. 
(FN1)  WE DO NOT FIND THE FOURCO CASE CONTROLLING, AND AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS. 

THE JONES ACT, WHICH ULTIMATELY GOVERNS THE VENUE ISSUE BEFORE US,
(FN2)  CONTAINS THE FOLLOWING PROVISION: 

"JURISDICTION IN SUCH ACTIONS SHALL BE UNDER THE COURT OF THE
DISTRICT IN WHICH THE DEFENDANT EMPLOYER RESIDES OR IN WHICH HIS
PRINCIPAL OFFICE IS LOCATED."  46 U.S.C. SEC 688. 

PRELIMINARILY IT SHOULD BE NOTED THAT ALTHOUGH THIS PROVISION IS
FRAMED IN JURISDICTIONAL TERMS, THE COURT HAS HELD THAT IF REFERS ONLY
TO VENUE, PANAMA R. CO. V. JOHNSON, 264 U.S. 375.  IT IS CONCEDED THAT
AS ENACTED AND ORIGINALLY INTERPRETED THE STATUTE WOULD NOT AUTHORIZE
FLORIDA VENUE IN THIS INSTANCE, FOR CORPORATE RESIDENCE TRADITIONALLY
MEANT PLACE OF INCORPORATION, IN THIS CASE OHIO, AND PURE OIL'S
PRINCIPAL OFFICE IS IN ILLINOIS.  THE COURT OF APPEALS HELD, HOWEVER,
THAT RESIDENCE HAD BEEN REDEFINED BY THE EXPANDED GENERAL VENUE
STATUTE, 28 U.S.C. SEC 1391(C) (1964 ED.), PASSED IN 1948.  THAT
STATUTE PROVIDES: 

"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." 

IF THIS DEFINITION OF RESIDENCE IS APPLICABLE TO THE JONES ACT VENUE
PROVISION, IT IS CONCEDED THAT THE ACTION WAS PROPERLY BROUGHT IN
FLORIDA, WHERE PURE OIL HAS TRANSACTED A SUBSTANTIAL AMOUNT OF
BUSINESS.  WE HOLD THAT THIS DEFINITION DOES SO APPLY AND THAT VENUE IN
FLORIDA WAS PROPER. 

THE EFFECT OF SEC 1391(C) WAS TO BROADEN THE GENERAL VENUE
REQUIREMENTS IN ACTIONS AGAINST CORPORATIONS BY PROVIDING A FORUM IN
ANY JUDICIAL DISTRICT IN WHICH THE CORPORATE DEFENDANT "IS DOING
BUSINESS."  SEE MOORE, COMMENTARY ON THE JUDICIAL CODE 193-194 (1949);
1 BARRON & HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE SEC 80, AT 386
(WRIGHT REV. 1960).  IT SEEMS MANIFEST THAT THIS CHANGE WAS MADE IN
ORDER TO BRING VENUE LAW IN TUNE WITH MODERN CONCEPTS OF CORPORATE
OPERATIONS.  (FN3)  THE QUESTION HERE INVOLVES THE REACH OF THESE
CHANGES.  THE REDEFINITION OF CORPORATE RESIDENCE CLEARLY TOUCHES THE
GENERAL DIVERSITY AND FEDERAL-QUESTION VENUE PROVISIONS OF SECS 1391(A)
AND (B).  ALTHOUGH THERE IS NO ELUCIDATION FROM STATUTORY HISTORY AS TO
THE INTENDED EFFECT OF SEC 1391(C) ON SPECIAL VENUE PROVISIONS, THE
LIBERALIZING PURPOSE UNDERLYING ITS ENACTMENT AND THE GENERALITY OF ITS
LANGUAGE SUPPORT THE VIEW THAT IT APPLIES TO ALL VENUE STATUTES USING
RESIDENCE AS A CRITERION, AT LEAST IN THE ABSENCE OF CONTRARY
RESTRICTIVE INDICATIONS IN ANY SUCH STATUTE. 

THIS VIEW OF SEC 1391(C) IS BASICALLY CONSISTENT WITH THE PURPOSES
AND LANGUAGE OF THE JONES ACT, WHOSE THRUST WAS NOT PRIMARILY DIRECTED
AT VENUE, BUT RATHER AT GIVING SEAMEN SUBSTANTIVE RIGHTS AND A FEDERAL
FORUM FOR THEIR VINDICATION.  IN SO DOING, IT PROVIDED A MORE GENEROUS
CHOICE OF FORUM THAN WOULD HAVE BEEN AVAILABLE AT THAT TIME UNDER THE
GENERAL VENUE STATUTE.  COMPARE ACT OF MARCH 3, 1911, C. 231, SECS 50,
51, 36 STAT. 1101.  THOUGH ONE ASPECT OF THE SPECIAL VENUE PROVISION
WAS PHRASED IN TERMS OF "RESIDENCE," WHICH AS APPLIED TO A CORPORATE
EMPLOYER WAS THEN GENERALLY UNDERSTOOD TO MEAN THE PLACE OF
INCORPORATION, SEE IN RE KEASBEY & MATTISON CO., 160 U.S. 221, 229, THE
STATUTE ALSO PERMITTED SUIT IN THE DISTRICT WHERE THE PRINCIPAL OFFICE
OF THE EMPLOYER WAS LOCATED.  SEE P. 203, SUPRA.  MOREOVER, THERE IS
NOTHING IN THE LEGISLATIVE HISTORY OF THIS PROVISION OF THE JONES ACT
(FN4)  TO INDICATE THAT ITS FRAMERS MEANT TO USE "RESIDENCE" AS
ANYTHING MORE THAN A REFERENT TO MORE GENERAL DOCTRINES OF VENUE RULES,
WHICH MIGHT ALTER IN THE FUTURE.  (FN5) 

THE SOLE AUTHORITY THAT MIGHT BE THOUGHT TO STAND IN THE WAY OF
READING THE JONES ACT TO EMBRACE THE RESIDENCE DEFINITION OF SEC
1391(C) IS FOURCO GLASS CO. V. TRANSMIRRA PRODS.  CORP., 353 U.S. 222. 
A CONSIDERATION OF THE SETTING IN WHICH THAT DECISION WAS MADE REVEALS
THAT IT MUST BE TAKEN AS LIMITED TO THE PARTICULAR QUESTION OF
STATUTORY CONSTRUCTION PRESENTED THERE.  FOURCO CONCERNED THE
INTERRELATION OF SEC 1391(C) AND THE SPECIAL VENUE PROVISION GOVERNING
PATENT INFRINGEMENT SUITS, 28 U.S.C. SEC 1400(B) (1964 ED.).  THE COURT
HELD THAT THE NEW DEFINITION OF RESIDENCE IN SEC 1391(C) WAS NOT
CARRIED OVER INTO SEC 1400(B).  THIS HOLDING, HOWEVER, WAS BASED ON
FACTORS INAPPLICABLE TO THE CASE BEFORE US TODAY. 

FIRST, THE PATENT VENUE SECTION AT ISSUE IN FOURCO WAS ITSELF REVISED
IN 1948  (FN6)  IN THE SAME ACT THAT CONTAINED SEC 1391(C).  FOURCO DID
NOT DIRECTLY CONCERN ITSELF WITH THE SCOPE OF SEC 1391(C).  RATHER, THE
COURT INQUIRED INTO THE EVIDENCE REVEALING CONGRESSIONAL PURPOSE WITH
RESPECT TO CHANGES IN SEC 1400(B), AND CONCLUDED THAT CONGRESS WISHED
IT TO REMAIN IN SUBSTANCE PRECISELY AS IT HAD BEEN BEFORE THE
REVISION.  THIS LEGISLATIVE BACKGROUND OF SEC 1400(B) IS OF NO
RELEVANCE OF COURSE TO A DETERMINATION OF THE EFFECT OF SEC 1391(C) ON
THE JONES ACT, FOR THE LATTER'S VENUE PROVISION WAS NOT RE-ENACTED
CONTEMPORANEOUSLY WITH SEC 1391(C).  THUS, THERE IS NOTHING TO SHOW A
CONGRESSIONAL PURPOSE NEGATIVING THE MORE NATURAL READING OF THE TWO
VENUE SECTIONS TOGETHER. 

SECOND, THE DECISION IN FOURCO RELIED HEAVILY ON THE REVISERS'
PURPOSE TO MAINTAIN SEC 1400(B) AS IT HAD BEEN INTERPRETED IN STONITE
PRODS.  CO. V. MELVIN LLOYD CO., 315 U.S. 561.  IN STONITE THIS COURT
RECOGNIZED THAT THERE WERE PARTICULAR REASONS WHY CONGRESS HAD PASSED
THE PREDECESSOR OF SEC 1400(B).  CONFUSION HAD BEEN ENGENDERED BY
JUDICIAL DECISIONS HOLDING THAT PATENT INFRINGERS COULD BE SUED
WHEREVER THEY MIGHT BE FOUND, EVEN THOUGH A NEWLY ENACTED GENERAL VENUE
STATUTE OF 1887 PROVIDED MORE LIMITED VENUE.  SEE 315 U.S., AT 563
565.  THE PATENT INFRINGEMENT VENUE STATUTE WAS ENACTED IN 1897, 29
STAT. 695, SPECIFICALLY TO NARROW VENUE IN SUCH SUITS.  THIS COURT IN
FOURCO, AFTER DETERMINING THAT THE 1948 REVISION OF SEC 1400(B) WAS
MEANT TO INTRODUCE NO SUBSTANTIVE CHANGE IN THE PROVISION, WAS MERELY
FOLLOWING THE PURPOSE AND LETTER OF THE ORIGINAL ENACTMENT. 

THE JONES ACT VENUE PROVISION PRESENTS QUITE A DIFFERENT HISTORY.  AS
A MINOR PROVISION IN A MAJOR SUBSTANTIVE ENACTMENT, NO PARTICULAR
ATTENTION WAS DIRECTED TO ITS TERMS; INDEED, THE VENUE PROVISION WAS
FIRST PRESENTED IN THE REPORT OF THE HOUSE-SENATE CONFERENCE COMMITTEE,
SEE H.R. REP. NO. 1107, 66TH CONG., 2D SESS., 19-20 (1920), AND WAS
APPARENTLY NEVER DISCUSSED IN COMMITTEE REPORTS OR ON THE FLOOR OF
EITHER HOUSE.  THUS, IT IS UNLIKELY THAT THE CONGRESS MEANT TO INFUSE
THE CONCEPT OF CORPORATE RESIDENCE WITH ANY SPECIAL MEANING THAT SHOULD
REMAIN IMPERVIOUS TO CHANGES IN STANDARDS EFFECTED BY MORE GENERAL
VENUE STATUTES.  MOREOVER, IT CAN BE SAID WITH REASONABLE CERTAINTY
THAT THE PROVISION WAS INTENDED TO LIBERALIZE VENUE, SEE SUPRA, P. 205,
UNLIKE THE PATENT INFRINGEMENT RULE WHICH WAS MEANT TO CONSTRICT IT.
WE CONCLUDE THAT HERE, IN CONTRAST TO THE SITUATION DEALT WITH IN
FOURCO, THE BASIC INTENT OF THE CONGRESS IS BEST FURTHERED BY CARRYING
THE BROADER RESIDENCE DEFINITION OF SEC 1391(C) INTO THE JONES ACT. 
AFFIRMED. 

FN1  COMPARE THE THIRD CIRCUIT'S DECISION IN LEITH V. OIL TRANSPORT
CO., 321 F.2D 591, WITH THE FOURTH CIRCUIT'S DECISION IN FANNING V.
UNITED FRUIT CO., 355 F.2D 147, WHICH FOLLOWED THE FIFTH CIRCUIT'S
DECISION IN THE PRESENT CASE. 

FN2  THE COURT OF APPEALS STATED THAT THE JONES ACT VENUE PROVISION
MUST BE MET IF, AS HERE, AN ACTION IS BASED ON BOTH UNSEAWORTHINESS AND
THE JONES ACT, 346 F.2D, AT 891.  BECAUSE OF OUR DISPOSITION OF THE
CASE WE FIND NO OCCASION TO PASS UPON THIS ISSUE, WHICH WAS NOT RAISED
IN THIS COURT. 

FN3  AS THE COURT OF APPEALS STATED IN TRANSMIRRA PRODS.  CORP.  V.
FOURCO GLASS CO., 233 F.2D 885, 887, "THE RATIONALE OF THIS SHARP BREAK
WITH ANCIENT FORMULAE IS QUITE OBVIOUSLY A RESPONSE TO A GENERAL
CONVICTION THAT IT WAS "INTOLERABLE IF THE TRADITIONAL CONCEPTS OF
"RESIDENCE" AND "PRESENCE" KEPT A CORPORATION FROM BEING SUED WHEREVER
IT WAS CREATING LIABILITIES.'"  ALTHOUGH THIS COURT REVERSED IN FOURCO,
SUPRA, FOR REASONS DISCUSSED LATER (INFRA, PP. 206-207), THE VALIDITY
OF THIS GENERAL OBSERVATION WAS IN NO WAY QUESTIONED. 

FN4  SECTION 688 WAS ENACTED AS SEC 33 OF THE MERCHANT MARINE ACT,
1920, 41 STAT. 1007.  THE ACT WAS PRIMARILY CONCERNED WITH THE CREATION
AND MAINTENANCE OF A NATIONAL MERCHANT MARINE FLEET.  THE SUBSTANTIVE
PART OF SEC 33, DEALING WITH SEAMEN'S RELIEF, WAS INTRODUCED IN THE
SENATE AS AN AMENDMENT TO THE HOUSE BILL, AND WAS PASSED WITHOUT
DISCUSSION.  59 CONG. REC. 7044 (1920).  THE VENUE PROVISION WAS ADDED
BY THE HOUSE-SENATE CONFERENCE COMMITTEE, SEE H.R. REP. NO. 1107, 66TH
CONG., 2D SESS., 19-20 (1920). 

FN5  WE DO NOT THINK THESE CONCLUSIONS ARE VITIATED BY THE FACT THAT
APPLICATION OF THE WIDER RESIDENCE DEFINITION OF SEC 1391(C) TO THE
JONES ACT MAKES THE ALTERNATIVE "PRINCIPAL OFFICE" VENUE PROVISION OF
THE LATTER STATUTE SUPERFLUOUS AS REGARDS CORPORATE EMPLOYERS.  THAT
PROVISION CONTINUES TO SERVE ITS ORIGINAL PURPOSE WHEN THE DEFENDANT
EMPLOYER IS NOT A CORPORATION.  NOR DOES THE SEC 1391(C) PROVISION COME
INTO CONFLICT WITH "PRINCIPAL OFFICE," UNLESS THAT PROVISION IS DEEMED
TO HAVE BEEN RESTRICTIVE IN ITS ORIGINS, A PROPOSITION FOR WHICH NO
SUPPORT CAN BE FOUND. 

FN6  IT READS:  "ANY CIVIL ACTION FOR PATENT INFRINGEMENT MAY BE
BROUGHT IN THE JUDICIAL DISTRICT WHERE THE DEFENDANT RESIDES, OR WHERE
THE DEFENDANT HAS COMMITTED ACTS OF INFRINGEMENT AND HAS A REGULAR AND
ESTABLISHED PLACE OF BUSINESS." 
..END :




WINTERS V. WASHINGTON 384 U.S. 208 


NO. 1143.  DECIDED MAY 16, 1966.  - 67 WASH. 2D 465, 407 P.2D 988,
APPEAL DISMISSED. 


WINTERS V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















BARRIOS V. FLORIDA 384 U.S. 208 


NO. 722.  DECIDED MAY 16, 1966.  - APPEAL DISMISSED. 


BARRIOS ET AL. V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :
















IZZO V. EYMAN, WARDEN 384 U.S. 209 


NO. 869, MISC.  DECIDED MAY 16, 1966.  - CERTIORARI GRANTED; REVERSED. 


IZZO V. EYMAN, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME
COURT OF ARIZONA IS REVERSED.  JACKSON V. DENNO, 378 U.S. 368. 
..END :

















SIMMONS V. SEELATSEE 384 U.S. 209 


NO. 1112.  DECIDED MAY 16, 1966.  - 244 F. SUPP. 808, AFFIRMED. 


SIMMONS ET AL. V. SEELATSEE, CHAIRMAN OF THE YAKIMA TRIBAL COUNCIL, ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF WASHINGTON. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















SELMAN V. PHILLIPS 384 U.S. 210 


NO. 854, MISC.  DECIDED MAY 16, 1966.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


SELMAN V. PHILLIPS ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALASKA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME
COURT OF ALASKA IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER CONSIDERATION IN LIGHT OF ARMSTRONG V. MANZO, 380 U.S. 545. 
..END :















TOOMBS V. FORTSON 384 U.S. 210 


NO. 1205.  DECIDED MAY 16, 1966.  - 241 F. SUPP. 65, AFFIRMED. 


TOOMBS ET AL. V. FORTSON, SECRETARY OF STATE OF GEORGIA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















HASPEL V. STATE BOARD OF EDUCATION 384 U.S. 211 


NO. 1352, MISC.  DECIDED MAY 16, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HASPEL V. STATE BOARD OF EDUCATION ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HANSON V. CHESAPEAKE & OHIO RAILWAY COMPANY 384 U.S. 211 


NO. 1170.  DECIDED MAY 16, 1966.  - CERTIORARI GRANTED; VACATED AND
REMANDED. 


HANSON ET AL. V. CHESAPEAKE & OHIO RAILWAY COMPANY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT IS VACATED
AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN
LIGHT OF GUNTHER V. SAN DIEGO & A.E.R. CO., 382 U.S. 257. 
..END :














UNITED STATES V. FISHER 384 U.S. 212 


NO. 700.  DECIDED MAY 16, 1966.  - AFFIRMED. 


UNITED STATES V. FISHER. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN WOULD SET THE CASE FOR ARGUMENT, POSTPONING
CONSIDERATION OF JURISDICTION TO THE HEARING OF THE CASE ON THE
MERITS. 
..END :














MUSSO V. CHICAGO 384 U.S. 213 


NO. 1046.  DECIDED MAY 16, 1966.  - 33 ILL. 2D 88, 210 N.E.2D 196,
APPEAL DISMISSED AND CERTIORARI DENIED. 


ILLINOIS EX REL. MUSSO, MADISON COUNTY TREASURER V. CHICAGO, BURLINGTON
& QUINCY RAILROAD CO. ET AL.

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION OF THE ILLINOIS ASSOCIATION OF SCHOOL BOARDS ET AL., FOR
LEAVE TO FILE A BRIEF, AS AMICI CURIAE, IS GRANTED. 

THE MOTION OF SANGAMON COUNTY, ILLINOIS, FOR LEAVE TO FILE A BRIEF,
AS AMICUS CURIAE, IS GRANTED. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :









WESTBROOK V. ARIZONA 384 U.S. 150 


NO. 1250, MISC.  DECIDED MAY 2, 1966.  - CERTIORARI GRANTED; 99 ARIZ.
30, 406 P.2D 388, VACATED AND REMANDED. 


THE QUESTION WHETHER IN THE CIRCUMSTANCES OF THIS CASE A HEARING ON
THE ACCUSED'S COMPETENCE TO STAND TRIAL WAS SUFFICIENT TO DETERMINE HIS
COMPETENCE TO WAIVE HIS RIGHT TO THE ASSISTANCE OF COUNSEL, OR WHETHER
THE TRIAL JUDGE HAD A FURTHER PROTECTING DUTY, SHOULD BE RE-EXAMINED IN
LIGHT OF PATE V. ROBINSON, 383 U.S. 375. 

WESTBROOK V. ARIZONA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  ALTHOUGH PETITIONER RECEIVED A
HEARING ON THE ISSUE OF HIS COMPETENCE TO STAND TRIAL, THERE APPEARS TO
HAVE BEEN NO HEARING OR INQUIRY INTO THE ISSUE OF HIS COMPETENCE TO
WAIVE HIS CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF COUNSEL AND
PROCEED, AS HE DID, TO CONDUCT HIS OWN DEFENSE.  "THE CONSTITUTIONAL
RIGHT OF AN ACCUSED TO BE REPRESENTED BY COUNSEL INVOKES, OF ITSELF,
THE PROTECTION OF A TRIAL COURT, IN WHICH THE ACCUSED - WHOSE LIFE OR
LIBERTY IS AT STAKE - IS WITHOUT COUNSEL.  THIS PROTECTING DUTY IMPOSES
THE SERIOUS AND WEIGHTY RESPONSIBILITY UPON THE TRIAL JUDGE OF
DETERMINING WHETHER THERE IS AN INTELLIGENT AND COMPETENT WAIVER BY THE
ACCUSED."  JOHNSON V. ZERBST, 304 U.S. 458, 465; CARNLEY V. COCHRAN,
369 U.S. 506. 

FROM AN INDEPENDENT EXAMINATION OF THE RECORD, WE CONCLUDE THAT THE
QUESTION WHETHER THIS "PROTECTING DUTY" WAS FULFILLED SHOULD BE RE
EXAMINED IN LIGHT OF OUR DECISION THIS TERM IN PATE V. ROBINSON, 383
U.S. 375.  ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF ARIZONA IS
VACATED AND THE CASE IS REMANDED TO THAT COURT FOR PROCEEDINGS NOT
INCONSISTENT HEREWITH.  IT IS SO ORDERED. 
..END :














RIGGAN V. VIRGINIA 384 U.S. 152 


NO. 887.  DECIDED MAY 2, 1966.  - CERTIORARI GRANTED; 206 VA. 499, 144
S.E.2D 298, REVERSED. 


RIGGAN V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
REVERSED.  AGUILAR V. TEXAS, 378 U.S. 108. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE HARLAN,
AND MR. JUSTICE STEWART JOIN, DISSENTING. 

PROBABLE CAUSE FOR THE ISSUANCE OF THE WARRANT IN THIS CASE
AUTHORIZING THE SEARCH OF APARTMENT 604C, 3000 SPOUT RUN PARKWAY,
ARLINGTON, VIRGINIA, WAS BASED UPON THE RECITAL IN THE AFFIDAVIT OF
"PERSONAL OBSERVATION OF THE PREMISES" BY OFFICER STOVER, THE AFFIANT,
AND "INFORMATION FROM SOURCES BELIEVED BY THE POLICE DEPARTMENT TO BE
RELIABLE."* 

*IT IS INTERESTING TO NOTE THAT AN AFFIDAVIT WITH ALLEGATIONS
IDENTICAL TO THOSE NOW IN QUESTION WAS APPROVED BY THE VIRGINIA SUPREME
COURT OF APPEALS IN TRI-PHARMACY, INC. V. UNITED STATES, 203 VA. 723,
127 S.E.2D 89 (1962).  WE DENIED CERTIORARI IN TRI-PHARMACY IN JANUARY
1963, 371 U.S. 962, BEFORE AGUILAR BUT A MONTH AFTER THE ARGUMENT IN
KER V. CALIFORNIA, 374 U.S. 23 (1963), AND DURING THE SAME TERM THAT
THE OPINION IN KER WAS ANNOUNCED.  IN VIEW OF THE FACT THAT KER IS THE
FIRST AND LEADING CASE ON THE IMPLEMENTATION OF MAPP V. OHIO, 367 U.S.
643 (1961), IT IS STRANGE THAT WE DENIED CERTIORARI IN TRI-PHARMACY AT
THAT TIME RATHER THAN HOLDING THE CASE UNTIL KER WAS DECIDED - IF ANY
PROBLEM OF UNREASONABLE SEARCH EXISTED.  IT IS STRANGER STILL THAT THE
COURT NOW GRANTS AND REVERSES THIS CASE SUMMARILY WITHOUT GIVING
VIRGINIA A CHANCE TO ARGUE THE LEGALITY OF ITS AFFIDAVIT, WHICH IT HAD
EVERY REASON TO THINK WAS SUFFICIENT. 

THE SUPREME COURT OF APPEALS OF VIRGINIA FOUND THAT OFFICER STOVER
HAD THE APARTMENT BUILDING AT 3000 SPOUT RUN PARKWAY UNDER HIS PERSONAL
SURVEILLANCE IN DECEMBER 1962 AND JANUARY 1963.  DURING THOSE MONTHS HE
SAW THE PETITIONER RIGGAN "COME AND GO" FROM THE BUILDING.  RIGGAN WAS
KNOWN TO THE POLICE, HAVING BEEN ARRESTED IN NOVEMBER 1962 ON A CHARGE
OF ASSAULT.  THAT ARREST WAS MADE AT APARTMENT 604C BY OFFICER HARTEL,
WHO NOTICED TELEPHONES CUT FROM THEIR WIRES AND PLACED IN A CLOSET,
ALONG WITH OTHER SUSPICIOUS CIRCUMSTANCES.  AFTER HE REPORTED THIS TO
THE POLICE DEPARTMENT, THE VICE SQUAD, OF WHICH OFFICER STOVER WAS A
MEMBER, BEGAN TO INVESTIGATE ACTIVITIES ON THE PREMISES.  IN ADDITION
TO RECEIVING THIS REPORT, OFFICER STOVER LEARNED FROM TWO FELLOW POLICE
OFFICERS AND TWO OTHER INFORMANTS, WHOM HE BELIEVED TO BE RELIABLE,
THAT A LOTTERY WAS BEING CONDUCTED FROM APARTMENT 604C. 

IN VIEW OF THESE FACTS I DO NOT SEE HOW THIS CASE CAN BE CONTROLLED
BY AGUILAR V. TEXAS, 378 U.S. 108 (1964).  THERE THE AFFIDAVIT WAS
BASED PURELY ON HEARSAY.  IT WAS FOUND INADEQUATE UNDER THE RULE
APPLIED IN GIORDENELLO V. UNITED STATES, 357 U.S. 480 (1958), WHERE A
MAJORITY OF THE COURT FOUND THAT THE COMPLAINT "DOES NOT INDICATE ANY
SOURCES FOR THE COMPLAINANT'S BELIEF; AND IT DOES NOT SET FORTH ANY
OTHER SUFFICIENT BASIS UPON WHICH A FINDING OF PROBABLE CAUSE COULD BE
MADE."  AT 486.  THE AFFIDAVIT HERE NOT ONLY ALLEGED "PERSONAL
OBSERVATION" BUT RECITED THAT THE AFFIANT HAD INFORMATION FROM OTHER
RELIABLE "SOURCES," WHO WERE SUBSEQUENTLY IDENTIFIED AS POLICE OFFICERS
AND PRIVATE INFORMANTS. 

I THEREFORE DISSENT. 
..END :







UNITED STATES V. CLAYTON 384 U.S. 154 


NO. 1115.  DECIDED MAY 2, 1966.  - APPEAL DISMISSED. 


UNITED STATES V. CLAYTON, COMMISSIONER OF REVENUE OF NORTH CAROLINA. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF NORTH CAROLINA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















BAER V. NEW YORK 384 U.S. 154 


NO. 1077.  DECIDED MAY 2, 1966.  - APPEAL DISMISSED. 


BAER V. NEW YORK. 

APPEAL FROM THE COUNTY COURT OF ONONDAGA COUNTY, NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :
















TEXAS V. UNITED STATES 384 U.S. 155 


NO. 1218.  DECIDED MAY 2, 1966.  - 252 F. SUPP. 234, AFFIRMED. 


TEXAS V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED.  HARPER
V. VIRGINIA STATE BOARD OF ELECTIONS, 383 U.S. 663. 

MR. JUSTICE BLACK DISSENTS FOR THE REASONS GIVEN IN HIS DISSENTING
OPINION IN HARPER V. VIRGINIA STATE BOARD OF ELECTIONS, SUPRA. 

MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE STEWART, DISSENTS FOR THE
REASONS GIVEN IN HIS DISSENTING OPINION IN HARPER V. VIRGINIA STATE
BOARD OF ELECTIONS, SUPRA.
..END :










CLAYTON V. UNITED STATES 384 U.S. 156 


NO. 893.  DECIDED MAY 2, 1966.  - APPEAL DISMISSED. 


CLAYTON, COMMISSIONER OF REVENUE OF NORTH CAROLINA V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  AMERICAN INSURANCE CO. V. LUCAS, 314 U.S. 575; PUBLIC
SERVICE COMM'N V. BRASHEAR LINES, 306 U.S. 204. 
..END :
















CHILDREN OF ISRAEL V. TAMARKIN 384 U.S. 157 


NO. 1054.  DECIDED MAY 2, 1966.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CHILDREN OF ISRAEL ET AL. V. TAMARKIN ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















UNITED STATES V. GENERAL MOTORS 384 U.S. 127 


NO. 46.  ARGUED DECEMBER 9, 1965.  - DECIDED APRIL 28, 1966.  - 234 F.
SUPP. 85, REVERSED AND REMANDED. 


THIS IS A CIVIL ACTION TO ENJOIN GENERAL MOTORS CORPORATION (GM) AND
THREE ASSOCIATIONS OF CHEVROLET DEALERS IN THE LOS ANGELES AREA FROM
PARTICIPATING IN AN ALLEGED CONSPIRACY TO RESTRAIN TRADE IN VIOLATION
OF SEC 1 OF THE SHERMAN ACT BY ELIMINATING SALES OF NEW CHEVROLETS
THROUGH "DISCOUNT HOUSES" AND "REFERRAL SERVICES."  THE DISTRICT COURT
FOUND, AMONG OTHER THINGS, THAT THE LOSOR CHEVROLET DEALERS ASSOCIATION
IN THE SUMMER OF 1960 COMPLAINED TO GM PERSONNEL ABOUT SALES TO
DISCOUNTERS; THAT AT A LOSOR MEETING IN NOVEMBER 1960 MEMBER DEALERS
AGREED TO EMBARK ON A LETTER-WRITING CAMPAIGN TO ENLIST GM'S AID; THAT
IN DECEMBER AND JANUARY GM PERSONNEL TALKED TO EVERY DEALER IN THE AREA
AND OBTAINED PROMISES NOT TO DEAL WITH DISCOUNTERS; THAT
REPRESENTATIVES OF THE THREE DEALER ASSOCIATIONS MET ON DECEMBER 15,
1960, AND CREATED A JOINT INVESTIGATING COMMITTEE; THAT THE
ASSOCIATIONS THEN UNDERTOOK TO POLICE THE AGREEMENTS SO OBTAINED BY GM;
THAT THE ASSOCIATIONS SUPPLIED INFORMATION TO GM FOR USE IN BRINGING
WAYWARD DEALERS INTO LINE, AND THAT THE CHEVROLET ZONE MANAGER ASKED
THEM TO DO SO; THAT AS A RESULT A NUMBER OF DEALERS WERE INDUCED TO
REPURCHASE CARS THEY HAD SOLD TO DISCOUNTERS AND AGREED TO REFRAIN FROM
MAKING SUCH SALES IN THE FUTURE; AND THAT BY SPRING 1961 SALES THROUGH
DISCOUNTERS SEEM TO HAVE ENDED.  HOWEVER, THE DISTRICT COURT FOUND NO
CONSPIRACY IN VIOLATION OF THE SHERMAN ACT, HOLDING THAT EACH ALLEGED
CONSPIRATOR ACTED TO PROMOTE ITS OWN SELF-INTEREST AND THAT IN SEEKING
TO VINDICATE THESE INTERESTS THE ALLEGED CONSPIRATORS ENTERED INTO NO
"AGREEMENTS" AMONG THEMSELVES, ALTHOUGH THEY MAY HAVE ENGAGED IN
"PARALLEL ACTION."  HELD:  THIS IS A CLASSIC CONSPIRACY IN RESTRAINT OF
TRADE:  JOINT, COLLABORATIVE ACTION BY DEALERS, ASSOCIATIONS, AND GM TO
ELIMINATE A CLASS OF COMPETITORS BY TERMINATING DEALINGS BETWEEN THEM
AND A MINORITY OF CHEVROLET DEALERS AND TO DEPRIVE FRANCHISED DEALERS
OF THEIR FREEDOM TO DEAL THROUGH DISCOUNTERS IF THEY SO CHOOSE.  PP.
138-148. 

(A)  THE DISTRICT COURT'S CONCLUSION THAT APPELLEES' CONDUCT DID NOT
AMOUNT TO A CONSPIRACY WITHIN THE MEANING OF THE ACT WAS NOT THE KIND
OF FACT-FINDING SHIELDED FROM REVIEW BY THE "CLEARLY ERRONEOUS" TEST
EMBODIED IN RULE 52(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE, SINCE
THE QUESTION INVOLVED THE APPLICATION OF A LEGAL STANDARD TO UNDISPUTED
FACTS AND SINCE THE BULK OF THE CASE WAS PRESENTED TO THE TRIAL JUDGE
IN THE FORM OF DOCUMENTS, DEPOSITIONS, AND WRITTEN STATEMENTS.  P. 141,
N. 16. 

(B)  IN DETERMINING WHETHER THERE HAS BEEN A CONSPIRACY OR
COMBINATION UNDER SEC 1 OF THE SHERMAN ACT IT IS OF NO CONSEQUENCE THAT
EACH PARTY ACTED IN ITS OWN LAWFUL INTEREST OR WHETHER THE FRANCHISE
SYSTEM IS LAWFUL OR ECONOMICALLY DESIRABLE.  P. 142. 

(C)  EVEN IF IT WERE ASSUMED THAT THERE HAD BEEN NO EXPLICIT
AGREEMENT AMONG THE APPELLEES AND THEIR ALLEGED CO-CONSPIRATORS, SUCH
AN AGREEMENT IS NOT A NECESSARY PART OF THE SHERMAN ACT CONSPIRACY -
CERTAINLY NOT WHERE, AS HERE, JOINT AND COLLABORATIVE ACTION WAS
PERVASIVE IN THE INITIATION, EXECUTION AND FULFILLMENT OF THE PLAN. 
UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29, 43.  PP. 142-143. 

(D)  THE JOINT AND INTERRELATED ACTIVITIES OF GM AND THE CO
CONSPIRATORS IN OBTAINING THE AGREEMENTS NOT TO DEAL WITH DISCOUNTERS
AND IN POLICING SUCH AGREEMENTS CANNOT BE DESCRIBED AS "UNILATERAL" OR
MERELY "PARALLEL."  PP. 144-145. 

(E)  THE ELIMINATION, BY JOINT COLLABORATIVE ACTION, OF BUSINESSMEN
FROM ACCESS TO THE MARKET IS A PER SE VIOLATION OF THE ACT.  KLOR'S,
INC. V. BROADWAY-HALE STORES, INC., 359 U.S. 207.  PP. 145-146. 

(F)  THE ECONOMIC MOTIVATION OF THOSE WHO BY CONCERTED ACTION SEEK TO
KEEP OTHERS FROM TRADING IN THE MARKET IS IRRELEVANT.  PP. 146-147. 

(G)  INHERENT IN THE SUCCESS OF THE COMBINATION IN THIS CASE WAS A
SUBSTANTIAL RESTRAINT UPON PRICE COMPETITION, A GOAL UNLAWFUL PER SE
WHEN SOUGHT TO BE EFFECTED BY COMBINATION OR CONSPIRACY.  UNITED STATES
V. PARKE, DAVIS & CO., SUPRA.  P. 147. 

UNITED STATES V. GENERAL MOTORS CORP. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL ACTION BROUGHT BY THE UNITED STATES TO ENJOIN THE
APPELLEES FROM PARTICIPATING IN AN ALLEGED CONSPIRACY TO RESTRAIN TRADE
IN VIOLATION OF SEC 1 OF THE SHERMAN ACT.  (FN1)  THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA CONCLUDED THAT
THE PROOF FAILED TO ESTABLISH THE ALLEGED VIOLATION, AND ENTERED
JUDGMENT FOR THE DEFENDANTS.  THE CASE IS HERE ON DIRECT APPEAL UNDER
SEC 2 OF THE EXPEDITING ACT, 32 STAT. 823, 15 U.S.C. SEC 29 (1964
ED.).  WE REVERSE. 

                                        I. 

THE APPELLEES ARE THE GENERAL MOTORS CORPORATION, WHICH MANUFACTURES,
AMONG OTHER THINGS, THE CHEVROLET LINE OF CARS AND TRUCKS, AND THREE
ASSOCIATIONS OF CHEVROLET DEALERS IN AND AROUND LOS ANGELES,
CALIFORNIA.  (FN2)  ALL OF THE CHEVROLET DEALERS IN THE AREA BELONG TO
ONE OR MORE OF THE APPELLEE ASSOCIATIONS. 

CHEVROLETS ARE ORDINARILY DISTRIBUTED BY DEALERS OPERATING UNDER A
FRANCHISE FROM GENERAL MOTORS.  THE DEALERS PURCHASE THE CARS FROM THE
MANUFACTURER, AND THEN RETAIL THEM TO THE PUBLIC.  THE RELATIONSHIP
BETWEEN MANUFACTURER AND DEALER IS INCORPORATED IN A COMPREHENSIVE
UNIFORM DEALER SELLING AGREEMENT.  THIS AGREEMENT DOES NOT RESTRICT OR
DEFINE THOSE TO WHOM THE DEALER MAY SELL.  NOR ARE THERE LIMITATIONS AS
TO THE TERRITORY WITHIN WHICH THE DEALER MAY SELL.  COMPARE WHITE MOTOR
CO. V. UNITED STATES, 372 U.S. 253.  THE FRANCHISE AGREEMENT DOES,
HOWEVER, CONTAIN A CLAUSE (HEREINAFTER REFERRED TO AS THE "LOCATION
CLAUSE") WHICH PROHIBITS A DEALER FROM MOVING TO OR ESTABLISHING "A NEW
OR DIFFERENT LOCATION, BRANCH SALES OFFICE, BRANCH SERVICE STATION, OR
PLACE OF BUSINESS INCLUDING ANY USED CAR LOT OR LOCATION WITHOUT THE
PRIOR WRITTEN APPROVAL OF CHEVROLET." 

BEGINNING IN THE LATE 1950'S, "DISCOUNT HOUSES" ENGAGED IN RETAILING
CONSUMER GOODS IN THE LOS ANGELES AREA AND "REFERRAL SERVICES"  (FN3)
BEGAN OFFERING TO SELL NEW CARS TO THE PUBLIC AT ALLEGEDLY BARGAIN
PRICES.  THEIR SOURCES OF SUPPLY WERE THE FRANCHISED DEALERS.  BY 1960
A NUMBER OF INDIVIDUAL CHEVROLET DEALERS, WITHOUT AUTHORIZATION FROM
GENERAL MOTORS, HAD DEVELOPED WORKING RELATIONSHIPS WITH THESE
ESTABLISHMENTS.  A CUSTOMER WOULD ENTER ONE OF THESE ESTABLISHMENTS AND
EXAMINE THE LITERATURE AND PRICE LISTS FOR AUTOMOBILES PRODUCED BY
SEVERAL MANUFACTURERS.  IN SOME INSTANCES, FLOOR MODELS WERE AVAILABLE
FOR INSPECTION.  SOME OF THE ESTABLISHMENTS NEGOTIATED WITH THE
CUSTOMER FOR A TRADE-IN OF HIS OLD CAR, AND PROVIDED FINANCING FOR HIS
NEW-CAR PURCHASE. 

THE RELATIONSHIP WITH THE FRANCHISED DEALER TOOK VARIOUS FORMS.  ONE
ARRANGEMENT WAS FOR THE DISCOUNTER TO REFER THE CUSTOMER TO THE
DEALER.  THE CAR WOULD THEN BE OFFERED TO HIM BY THE DEALER AT A PRICE
PREVIOUSLY AGREED UPON BETWEEN THE DEALER AND THE DISCOUNTER.  IN 1960,
A TYPICAL REFERRAL AGREEMENT CONCERNING CHEVROLETS PROVIDED THAT THE
PRICE TO THE CUSTOMER WAS NOT TO EXCEED $250 OVER THE DEALER'S INVOICED
COST.  FOR ITS PART IN SUPPLYING THE CUSTOMER, THE DISCOUNTER RECEIVED
$50 PER SALE. 

ANOTHER COMMON ARRANGEMENT WAS FOR THE DISCOUNTER ITSELF TO NEGOTIATE
THE SALE, THE DEALER'S ROLE BEING TO FURNISH THE CAR AND TO TRANSFER
TITLE TO THE CUSTOMER AT THE DIRECTION OF THE DISCOUNTER.  ONE DEALER
FURNISHED CHEVROLETS UNDER SUCH AN ARRANGEMENT, CHARGING THE DISCOUNTER
$85 OVER ITS INVOICED COST, WITH THE DISCOUNTER GETTING THE BEST PRICE
IT COULD FROM ITS CUSTOMER. 

THESE WERE THE PRINCIPAL FORMS OF TRADING INVOLVED IN THIS CASE,
ALTHOUGH WITHIN EACH THERE WERE VARIATIONS, (FN4) AND THERE WERE
SCHEMES WHICH FIT NEITHER PATTERN.  (FN5)  BY 1960 THESE METHODS FOR
RETAILING NEW CARS HAD REACHED CONSIDERABLE DIMENSIONS.  OF THE 100,000
NEW CHEVROLETS SOLD IN THE LOS ANGELES AREA IN THAT YEAR, SOME 2,000
REPRESENTED DISCOUNT HOUSE OR REFERRAL SALES.  ONE CHEVROLET DEALER
ATTRIBUTED AS MUCH AS 25% OF ITS ANNUAL SALES TO PARTICIPATION IN THESE
ARRANGEMENTS, WHILE ANOTHER ACCOUNTED FOR BETWEEN 400 AND 525 REFERRAL
SALES IN A SINGLE YEAR. 

APPROXIMATELY A DOZEN OF THE 85 CHEVROLET DEALERS IN THE LOS ANGELES
AREA WERE FURNISHING CARS TO DISCOUNTERS IN 1960.  AS THE VOLUME OF
THESE SALES GREW, THE NONPARTICIPATING CHEVROLET DEALERS LOCATED NEAR
ONE OR MORE OF THE DISCOUNT OUTLETS  (FN6) BEGAN TO FEEL THE PINCH. 
DEALERS LOST SALES BECAUSE POTENTIAL CUSTOMERS RECEIVED, OR THOUGHT
THEY WOULD RECEIVE,  (FN7) A MORE ATTRACTIVE DEAL FROM A DISCOUNTER WHO
OBTAINED ITS CHEVROLETS FROM A DISTANT DEALER.  THE DISCOUNTERS
VIGOROUSLY ADVERTISED CHEVROLETS FOR SALE, WITH ALLURING STATEMENTS AS
TO PRICE SAVINGS.  THE DISCOUNTERS ALSO ADVERTISED THAT ALL CHEVROLET
DEALERS WERE OBLIGATED TO HONOR THE NEW-CAR WARRANTY AND TO PROVIDE THE
FREE SERVICES CONTEMPLATED THEREIN; AND GENERAL MOTORS DOES INDEED
REQUIRE CHEVROLET DEALERS TO SERVICE CHEVROLET CARS, WHEREVER
PURCHASED, PURSUANT TO THE NEW-CAR WARRANTY AND SERVICE AGREEMENT. 
ACCORDINGLY, NONPARTICIPATING DEALERS WERE INCREASINGLY CALLED UPON TO
SERVICE, WITHOUT COMPENSATION, CHEVROLETS PURCHASED THROUGH
DISCOUNTERS.  PERHAPS WHAT GRATED MOST WAS THE DEMAND THAT THEY
"PRECONDITION" CARS SO PURCHASED - MAKE THE HOPEFULLY MINOR ADJUSTMENTS
AND DO THE BODY AND PAINT WORK NECESSARY TO RENDER A FACTORY-FRESH CAR
BOTH CUSTOMER- AND ROAD-WORTHY. 

ON JUNE 28, 1960, AT A REGULAR MEETING OF THE APPELLEE LOSOR
CHEVROLET DEALERS ASSOCIATION, MEMBERS DEALERS DISCUSSED THE PROBLEM
AND RESOLVED TO BRING IT TO THE ATTENTION OF THE CHEVROLET DIVISION'S
LOS ANGELES ZONE MANAGER, ROBERT O'CONNOR.  SHORTLY THEREAFTER, A
DELEGATION FROM THE ASSOCIATION CALLED UPON O'CONNOR, PRESENTED
EVIDENCE THAT SOME DEALERS WERE DOING BUSINESS WITH THE DISCOUNTERS,
AND ASKED FOR HIS ASSISTANCE.  O'CONNOR PROMISED HE WOULD SPEAK TO THE
OFFENDING DEALERS.  WHEN NO HELP WAS FORTHCOMING, OWEN KEOWN, A
DIRECTOR OF LOSOR, TOOK MATTERS INTO HIS OWN HANDS.  FIRST, HE SPOKE TO
WARREN BIGGS AND WILBUR NEWMAN, CHEVROLET DEALERS WHO WERE THEN DOING A
SUBSTANTIAL BUSINESS WITH DISCOUNTERS.  ACCORDING TO KEOWN'S TESTIMONY,
NEWMAN TOLD HIM THAT HE WOULD CONTINUE THE PRACTICE "UNTIL  ...  TOLD
NOT TO BY" CHEVROLET, AND THAT "WHEN THE CHEVROLET MOTOR DIVISION TOLD
HIM NOT TO DO IT, HE KNEW THAT THEY WOULDN'T LET SOME OTHER DEALER
CARRY ON WITH IT."  (FN8) 

KEOWN THEN REPORTED THE FOREGOING EVENTS AT THE ASSOCIATION'S ANNUAL
MEETING IN HONOLULU ON NOVEMBER 10, 1960.  THE MEMBER DEALERS PRESENT
AGREED IMMEDIATELY TO FLOOD GENERAL MOTORS AND THE CHEVROLET DIVISION
WITH LETTERS AND TELEGRAMS ASKING FOR HELP.  SALESMEN, TOO, WERE TO
WRITE.  (FN9)

HUNDREDS OF LETTERS AND WIRES DESCENDED UPON DETROIT - WITH TELLING
EFFECT.  WITHIN A WEEK CHEVROLET'S O'CONNOR WAS DIRECTED TO FURNISH HIS
SUPERIORS IN DETROIT WITH "A DETAILED REPORT OF THE DISCOUNT HOUSE
OPERATIONS  ...  AS WELL AS WHAT ACTION WE IN THE ZONE ARE TAKING TO
CURB SUCH SALES."  (FN10) 

BY MID-DECEMBER GENERAL MOTORS HAD FORMULATED ITS RESPONSE.  ON
DECEMBER 15, JAMES M. ROCHE, THEN AN EXECUTIVE VICE PRESIDENT OF
GENERAL MOTORS, WROTE TO SOME OF THE COMPLAINING DEALERS.  HE NOTED
THAT THE PRACTICES TO WHICH THEY WERE OBJECTING "IN SOME INSTANCES
REPRESENT THE ESTABLISHMENT OF A SECOND AND UNAUTHORIZED SALES OUTLET
OR LOCATION CONTRARY TO THE PROVISIONS OF THE GENERAL MOTORS DEALERS
SELLING AGREEMENTS."  RECIPIENTS OF THE LETTER WERE ADVISED THAT
GENERAL MOTORS PERSONNEL PROPOSED TO DISCUSS THAT MATTER WITH EACH OF
THE DEALERS.  (FN11)  O'CONNOR IN LOS ANGELES WAS APPRISED OF THE
LETTER'S CONTENT AND INSTRUCTED TO CARRY ON THE PERSONAL DISCUSSIONS
REFERRED TO THEREIN.  WITH RESPECT TO THE OFFENDING DEALERS, HE WAS TO
WORK WITH ROY CASH, REGIONAL MANAGER FOR THE CHEVROLET DIVISION.  CASH
HAD BEEN BRIEFED ON THE SUBJECT IN DETROIT ON DECEMBER 14. 

GENERAL MOTORS PERSONNEL PROCEEDED TO TELEPHONE ALL AREA DEALERS,
BOTH TO IDENTIFY THOSE ASSOCIATED WITH THE DISCOUNTERS AND TO ADVISE
NONPARTICIPANTS THAT GENERAL MOTORS HAD ENTERED THE LISTS.  THE
PRINCIPAL OFFENDERS WERE TREATED TO UNPRECEDENTED INDIVIDUAL
CONFRONTATIONS WITH CASH, THE REGIONAL MANAGER.  THESE BRIEF MEETINGS
WERE WHOLLY SUCCESSFUL IN OBTAINING FROM EACH DEALER HIS AGREEMENT TO
ABANDON THE PRACTICES IN QUESTION.  SOME CAPITULATED DURING THE COURSE
OF THE FOUR-OR FIVE-MINUTE MEETING, OR IMMEDIATELY THEREAFTER.  (FN12)
ONE DEALER, WHO MET NOT WITH CASH BUT WITH THE CITY SALES MANAGER FOR
CHEVROLET, PUT OFF DECISION FOR A WEEK "TO MAKE SURE THAT THE OTHER
DEALERS, OR MOST OF THEM, HAD STOPPED THEIR BUSINESS DEALINGS WITH
DISCOUNT HOUSES."  (FN13) 

THERE IS EVIDENCE THAT UNANIMITY WAS NOT OBTAINED WITHOUT REFERENCE
TO THE ULTIMATE POWER OF GENERAL MOTORS.  THE TESTIMONY OF DEALER
WILBUR NEWMAN WAS THAT REGIONAL MANAGER CASH RELATED A STORY, THE
RELEVANCE OF WHICH WAS NOT LOST UPON HIM, THAT IN HANDLING CHILDREN, "I
CAN TELL THEM TO STOP SOMETHING.  IF THEY DON'T DO IT  ...  I CAN KNOCK
THEIR TEETH DOWN THEIR THROATS." 

BY MID-JANUARY GENERAL MOTORS HAD ELICITED FROM EACH DEALER A PROMISE
NOT TO DO BUSINESS WITH THE DISCOUNTERS.  BUT SUCH AGREEMENTS WOULD
REQUIRE POLICING - A FACT WHICH HAD BEEN ANTICIPATED.  GENERAL MOTORS
EARLIER HAD INITIATED CONTACTS WITH FIRMS CAPABLE OF PERFORMING SUCH A
FUNCTION.  THIS PLAN, UNILATERALLY TO POLICE THE AGREEMENTS, WAS
DISPLACED, HOWEVER, IN FAVOR OF A JOINT EFFORT BETWEEN GENERAL MOTORS,
THE THREE APPELLEE ASSOCIATIONS, AND A NUMBER OF INDIVIDUAL DEALERS. 

ON DECEMBER 15, 1960, REPRESENTATIVES OF THE THREE APPELLEE
ASSOCIATIONS HAD MET AND APPOINTED A JOINT COMMITTEE TO STUDY THE
SITUATION AND TO KEEP IN TOUCH WITH CHEVROLET'S O'CONNOR.  (FN14) EARLY
IN 1961, THE THREE ASSOCIATIONS AGREED JOINTLY TO FINANCE THE
"SHOPPING" OF THE DISCOUNTERS TO ASSURE THAT NO CHEVROLET DEALER
CONTINUED TO SUPPLY THEM WITH CARS.  EACH OF THE ASSOCIATIONS
CONTRIBUTED $5,000, AND A PROFESSIONAL INVESTIGATOR WAS HIRED.  HE WAS
INSTRUCTED TO TRY TO PURCHASE NEW CHEVROLETS FROM THE PROSCRIBED
OUTLETS, TO TAPE-RECORD THE TRANSACTIONS, IF ANY, AND TO GATHER ALL THE
NECESSARY DOCUMENTARY EVIDENCE - WHICH THE ASSOCIATIONS WOULD THEN LAY
"AT THE DOORSTEP OF CHEVROLET."  THESE JOINT ASSOCIATIONAL ACTIVITIES
WERE BOTH PRECEDED AND SUPPLEMENTED BY SIMILAR "SHOPPING" ACTIVITIES BY
INDIVIDUAL DEALERS AND BY APPELLEE LOSOR CHEVROLET DEALERS
ASSOCIATION. 

GENERAL MOTORS COLLABORATED WITH THESE POLICING ACTIVITIES.  THERE IS
EVIDENCE THAT ZONE MANAGER O'CONNOR AND A SUBORDINATE, JERE FAUST,
ACTIVELY SOLICITED THE HELP OF INDIVIDUAL DEALERS IN UNCOVERING
VIOLATIONS.  ARMED WITH INFORMATION OF SUCH VIOLATIONS, O'CONNOR OR
MEMBERS OF HIS STAFF WOULD ASK THE OFFENDING DEALER TO COME IN AND
TALK.  THE DEALER THEN WAS CONFRONTED WITH THE CAR PURCHASED BY THE
"SHOPPER," THE DOCUMENTS OF SALE, AND IN MOST CASES A TAPE RECORDING OF
THE TRANSACTION.  IN EVERY INSTANCE, THE EMBARRASSED DEALER REPURCHASED
THE CAR, SOMETIMES AT A SUBSTANTIAL LOSS, AND PROMISED TO STOP SUCH
SALES.  AT THE DIRECTION OF O'CONNOR OR A SUBORDINATE, THE CHECKS WITH
WHICH THE CARS WERE REPURCHASED WERE MADE PAYABLE TO AN ATTORNEY ACTING
JOINTLY FOR THE THREE DEFENDANT ASSOCIATIONS. 

O'CONNOR TESTIFIED THAT ON NO OCCASION DID HE "FORCE" A DEALER TO
REPURCHASE; HE MERELY MADE THE OPPORTUNITY AVAILABLE.  BUT ONE DEALER
TESTIFIED THAT WHEN AN ASSISTANT ZONE MANAGER FOR THE CHEVROLET
DIVISION ASKED HIM TO COME IN AND TALK ABOUT DISCOUNT SALES, "HE
SPECIFIED A SUM OF MONEY WHICH I WAS TO BRING WITH ME WHEN I CAME DOWN
AND SAW HIM  ... .  I KEPT THE APPOINTMENT AND BROUGHT A CASHIER'S
CHECK.  I KNEW WHEN I CAME DOWN TO LOS ANGELES THAT I WAS GOING TO
REPURCHASE AN AUTOMOBILE  ...  ."  ANOTHER DEALER TESTIFIED THAT UPON
BEING CONFRONTED WITH EVIDENCE THAT ONE OF HIS CARS HAD BEEN PURCHASED
THROUGH A REFERRAL SERVICE, HE NOT ONLY BOUGHT IT BACK (WITHOUT
QUESTIONING THE CORRECTNESS OF THE PRICE EXACTED) BUT ALSO FIRED THE
EMPLOYEE RESPONSIBLE FOR THE TRANSACTION - ALTHOUGH THE EMPLOYEE HAD
BEEN COMMENDED BY THE CHEVROLET DIVISION A FEW WEEKS EARLIER AS THE
"NUMBER ONE FLEET SALESMAN" IN THE 11-STATE PACIFIC REGION. 

BY THE SPRING OF 1961, THE CAMPAIGN TO ELIMINATE THE DISCOUNTERS FROM
COMMERCE IN NEW CHEVROLET CARS WAS A SUCCESS.  SALES THROUGH THE
DISCOUNT OUTLETS SEEM TO HAVE COME TO A HALT.  NOT UNTIL A FEDERAL
GRAND JURY COMMENCED AN INQUIRY INTO THE MATTERS WHICH WE HAVE SKETCHED
DOES IT APPEAR THAN ANY CHEVROLET DEALER RESUMED ITS BUSINESS
ASSOCIATION WITH THE DISCOUNTERS. 

               II. 

ON THESE BASIC FACTS, THE GOVERNMENT FIRST PROCEEDED CRIMINALLY.  A
FEDERAL GRAND JURY IN THE SOUTHERN DISTRICT OF CALIFORNIA RETURNED AN
INDICTMENT.  AFTER TRIAL, THE DEFENDANTS WERE FOUND NOT GUILTY.  THE
PRESENT CIVIL ACTION, FILED SHORTLY AFTER RETURN OF THE INDICTMENT, WAS
THEN BROUGHT TO TRIAL. 

BOTH THE GOVERNMENT AND THE APPELLEES URGE THE IMPORTANCE, FOR
PURPOSES OF DECISION, OF THE "LOCATION CLAUSE" IN THE DEALER SELLING
AGREEMENT WHICH PROHIBITS A FRANCHISED DEALER FROM MOVING TO OR
ESTABLISHING "A NEW OR DIFFERENT LOCATION, BRANCH SALES OFFICE, BRANCH
SERVICE STATION, OR PLACE OF BUSINESS  ...  WITHOUT THE PRIOR WRITTEN
APPROVAL OF CHEVROLET." THE APPELLEES CONTEND THAT THIS CONTRACTUAL
PROVISION IS LAWFUL, AND THAT IT JUSTIFIES THEIR ACTIONS.  THEY ARGUE
THAT GENERAL MOTORS ACTED LAWFULLY TO PREVENT ITS DEALERS FROM
VIOLATING THE "LOCATION CLAUSE," THAT THE DESCRIBED ARRANGEMENTS WITH
DISCOUNTERS CONSTITUTE THE ESTABLISHMENT OF ADDITIONAL SALES OUTLETS IN
VIOLATION OF THE CLAUSE, AND THAT THE INDIVIDUAL DEALERS - AND THEIR
ASSOCIATIONS - HAVE AN INTEREST IN UNIFORM COMPLIANCE WITH THE
FRANCHISE AGREEMENT, WHICH INTEREST THEY LAWFULLY SOUGHT TO VINDICATE. 
THE GOVERNMENT INVITES US TO JOIN IN THE ASSUMPTION, ONLY FOR
PURPOSES OF THIS CASE, THAT THE "LOCATION CLAUSE" ENCOMPASSES SALES BY
DEALERS THROUGH THE MEDIUM OF DISCOUNTERS.  BUT IT URGES US TO HOLD
THAT, SO CONSTRUED, THE PROVISION IS UNLAWFUL AS AN UNREASONABLE
RESTRAINT OF TRADE IN VIOLATION OF THE SHERMAN ACT.  (FN15) 

WE NEED NOT REACH THESE QUESTIONS CONCERNING THE MEANING, EFFECT, OR
VALIDITY OF THE "LOCATION CLAUSE" OR OF ANY OTHER PROVISION IN THE
DEALER SELLING AGREEMENT, AND WE DO NOT.  WE DO NOT DECIDE WHETHER THE
"LOCATION CLAUSE" MAY BE CONSTRUED TO PROHIBIT A DEALER, PARTY TO IT,
FROM SELLING THROUGH DISCOUNTERS, OR WHETHER GENERAL MOTORS COULD BY
UNILATERAL ACTION ENFORCE THE CLAUSE, SO CONSTRUED.  WE HAVE HERE A
CLASSIC CONSPIRACY IN RESTRAINT OF TRADE:  JOINT, COLLABORATIVE ACTION
BY DEALERS, THE APPELLEE ASSOCIATIONS, AND GENERAL MOTORS TO ELIMINATE
A CLASS OF COMPETITORS BY TERMINATING BUSINESS DEALINGS BETWEEN THEM
AND A MINORITY OF CHEVROLET DEALERS AND TO DEPRIVE FRANCHISED DEALERS
OF THEIR FREEDOM TO DEAL THROUGH DISCOUNTERS IF THEY SO CHOOSE. 
AGAINST THIS FACT OF UNLAWFUL COMBINATION, THE "LOCATION CLAUSE" IS OF
NO AVAIL.  WHATEVER GENERAL MOTORS MIGHT OR MIGHT NOT LAWFULLY HAVE
DONE TO ENFORCE INDIVIDUAL DEALER SELLING AGREEMENTS BY ACTION WITHIN
THE BORDERS OF THOSE AGREEMENTS AND THE RELATIONSHIP WHICH EACH
DEFINES, IS BESIDE THE POINT.  AND, BECAUSE THE ACTION TAKEN
CONSTITUTES A COMBINATION OR CONSPIRACY, IT IS NOT NECESSARY TO
CONSIDER WHAT MIGHT BE THE LEGITIMATE INTEREST OF A DEALER IN SECURING
COMPLIANCE BY OTHERS WITH THE "LOCATION CLAUSE," OR THE LAWFULNESS OF
ACTION A DEALER MIGHT INDIVIDUALLY TAKE TO VINDICATE THIS INTEREST. 

THE DISTRICT COURT DECIDED OTHERWISE.  IT CONCLUDED THAT THE
DESCRIBED EVENTS DID NOT ADD UP TO A COMBINATION OR CONSPIRACY
VIOLATIVE OF THE ANTITRUST LAWS.  BUT ITS CONCLUSION CANNOT BE SQUARED
WITH ITS OWN SPECIFIC FINDINGS OF FACT.  THESE FINDINGS INCLUDE THE
ESSENTIALS OF A CONSPIRACY WITHIN SEC 1 OF THE SHERMAN ACT:  THAT IN
THE SUMMER OF 1960 THE LOSOR CHEVROLET DEALERS ASSOCIATION, "THROUGH
SOME OF ITS DEALER-MEMBERS," COMPLAINED TO GENERAL MOTORS PERSONNEL
ABOUT SALES THROUGH DISCOUNTERS (FINDING 34); THAT AT A LOSOR MEETING
IN NOVEMBER 1960 THE DEALERS THERE PRESENT AGREED TO EMBARK ON A LETTER
WRITING CAMPAIGN DIRECTED AT ENLISTING THE AID OF GENERAL MOTORS
(FINDING 35); THAT IN DECEMBER AND JANUARY GENERAL MOTORS PERSONNEL
DISCUSSED THE MATTER WITH EVERY CHEVROLET DEALER IN THE LOS ANGELES
AREA AND ELICITED FROM EACH A PROMISE NOT TO DO BUSINESS WITH THE
DISCOUNTERS (FINDING 39); THAT REPRESENTATIVES OF THE THREE
ASSOCIATIONS OF CHEVROLET DEALERS MET ON DECEMBER 15, 1960, AND CREATED
A JOINT INVESTIGATING COMMITTEE (FINDING 40); THAT THE THREE
ASSOCIATIONS THEN UNDERTOOK JOINTLY TO POLICE THE AGREEMENTS OBTAINED
FROM EACH OF THE DEALERS BY GENERAL MOTORS:  THAT THE ASSOCIATIONS
SUPPLIED INFORMATION TO GENERAL MOTORS FOR USE BY IT IN BRINGING
WAYWARD DEALERS INTO LINE, AND THAT CHEVROLET'S O'CONNOR ASKED THE
ASSOCIATIONS TO DO SO (FINDINGS 41 AND 42); THAT AS A RESULT OF THIS
COLLABORATIVE EFFORT, A NUMBER OF CHEVROLET DEALERS WERE INDUCED TO
REPURCHASE CARS THEY HAD SOLD THROUGH DISCOUNTERS AND TO PROMISE TO
ABJURE SUCH SALES IN FUTURE (FINDING 42). 

THESE FINDINGS BY THE TRIAL JUDGE COMPEL THE CONCLUSION THAT A
CONSPIRACY TO RESTRAIN TRADE WAS PROVED.  (FN16)  THE ERROR OF THE
TRIAL COURT LIES IN ITS FAILURE TO APPLY THE CORRECT AND ESTABLISHED
STANDARD FOR ASCERTAINING THE EXISTENCE OF A COMBINATION OR CONSPIRACY
UNDER SEC 1 OF THE SHERMAN ACT.  SEE UNITED STATES V. PARKE, DAVIS &
CO., 362 U.S. 29, 44-45.  THE TRIAL COURT ATTEMPTED TO JUSTIFY ITS
CONCLUSION ON THE FOLLOWING REASONING:  THAT EACH DEFENDANT AND ALLEGED
CO-CONSPIRATOR ACTED TO PROMOTE ITS OWN SELF-INTEREST; THAT GENERAL
MOTORS, AS WELL AS THE DEFENDANT ASSOCIATIONS AND THEIR MEMBERS, HAS A
LAWFUL INTEREST IN SECURING COMPLIANCE WITH THE "LOCATION CLAUSE" AND
IN THUS PROTECTING THE FRANCHISE SYSTEM OF DISTRIBUTING AUTOMOBILES -
BUSINESS ARRANGEMENTS WHICH THE COURT DEEMED LAWFUL AND PROPER; AND
THAT IN SEEKING TO VINDICATE THESE INTERESTS THE DEFENDANTS AND THEIR
ALLEGED CO-CONSPIRATORS ENTERED INTO NO "AGREEMENTS" AMONG THEMSELVES,
ALTHOUGH THEY MAY HAVE ENGAGED IN "PARALLEL ACTION." 

THESE FACTORS DO NOT JUSTIFY THE RESULT REACHED.  IT IS OF NO
CONSEQUENCE, FOR PURPOSES OF DETERMINING WHETHER THERE HAS BEEN A
COMBINATION OR CONSPIRACY UNDER SEC 1 OF THE SHERMAN ACT, THAT EACH
PARTY ACTED IN ITS OWN LAWFUL INTEREST.  NOR IS IT OF CONSEQUENCE FOR
THIS PURPOSE WHETHER THE "LOCATION CLAUSE" AND FRANCHISE SYSTEM ARE
LAWFUL OR ECONOMICALLY DESIRABLE.  AND ALTHOUGH WE REGARD AS CLEARLY
ERRONEOUS AND IRRECONCILABLE WITH ITS OTHER FINDINGS THE TRIAL COURT'S
CONCLUSORY "FINDING" THAT THERE HAD BEEN NO "AGREEMENT" AMONG THE
DEFENDANTS AND THEIR ALLEGED CO-CONSPIRATORS, IT HAS LONG BEEN SETTLED
THAT EXPLICIT AGREEMENT IS NOT A NECESSARY PART OF A SHERMAN ACT
CONSPIRACY - CERTAINLY NOT WHERE, AS HERE, JOINT AND COLLABORATIVE
ACTION WAS PERVASIVE IN THE INITIATION, EXECUTION, AND FULFILLMENT OF
THE PLAN.  UNITED STATES V. PARKE, DAVIS & CO., SUPRA, AT 43; UNITED
STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707, 722-723; FEDERAL
TRADE COMM'N V. BEECH-NUT PACKING CO., 257 U.S. 441, 455. 

NEITHER INDIVIDUAL DEALERS NOR THE ASSOCIATIONS ACTED INDEPENDENTLY
OR SEPARATELY.  THE DEALERS COLLABORATED, THROUGH THE ASSOCIATIONS AND
OTHERWISE, AMONG THEMSELVES AND WITH GENERAL MOTORS, BOTH TO ENLIST THE
AID OF GENERAL MOTORS AND TO ENFORCE DEALERS' PROMISES TO FORSAKE THE
DISCOUNTERS.  THE ASSOCIATIONS EXPLICITLY ENTERED INTO A JOINT VENTURE
TO ASSIST GENERAL MOTORS IN POLICING THE DEALERS' PROMISES, AND THEIR
JOINT PROFFER OF AID WAS ACCEPTED AND UTILIZED BY GENERAL MOTORS. 

NOR DID GENERAL MOTORS CONFINE ITS ACTIVITIES TO THE CONTRACTUAL
BOUNDARIES OF ITS RELATIONSHIPS WITH INDIVIDUAL DEALERS.  AS THE TRIAL
COURT FOUND (FINDING 39), GENERAL MOTORS AT NO TIME ANNOUNCED THAT IT
WOULD TERMINATE THE FRANCHISE OF ANY DEALER WHICH FURNISHED CARS TO THE
DISCOUNTERS.  (FN17) THE EVIDENCE INDICATES THAT IT HAD NO INTENTION OF
ACTING IN THIS UNILATERAL FASHION.  (FN18)  ON THE CONTRARY, OVERRIDING
CORPORATE POLICY WITH RESPECT TO PROPER DEALER RELATIONS  (FN19)
DISSUADED GENERAL MOTORS FROM ENGAGING IN THIS SORT OF WHOLLY
UNILATERAL CONDUCT, THE VALIDITY OF WHICH UNDER THE ANTITRUST LAWS WAS
ASSUMED, WITHOUT BEING DECIDED, IN PARKE DAVIS, SUPRA. 

AS PARKE DAVIS HAD DONE, GENERAL MOTORS SOUGHT TO ELICIT FROM ALL THE
DEALERS AGREEMENTS, SUBSTANTIALLY INTERRELATED AND INTERDEPENDENT, THAT
NONE OF THEM WOULD DO BUSINESS WITH THE DISCOUNTERS.  THESE AGREEMENTS
WERE HAMMERED OUT IN MEETINGS BETWEEN NONCONFORMING DEALERS AND
OFFICIALS OF GENERAL MOTORS' CHEVROLET DIVISION, AND IN TELEPHONE
CONVERSATIONS WITH OTHER DEALERS.  IT WAS ACKNOWLEDGED FROM THE
BEGINNING THAT SUBSTANTIAL UNANIMITY WOULD BE ESSENTIAL IF THE
AGREEMENTS WERE TO BE FORTHCOMING.  AND ONCE THE AGREEMENTS WERE
SECURED, GENERAL MOTORS BOTH SOLICITED AND EMPLOYED THE ASSISTANCE OF
ITS ALLEGED CO-CONSPIRATORS IN HELPING TO POLICE THEM.  WHAT RESULTED
WAS A FABRIC INTERWOVEN BY MANY STRANDS OF JOINT ACTION TO ELIMINATE
THE DISCOUNTERS FROM PARTICIPATION IN THE MARKET, TO INHIBIT THE FREE
CHOICE OF FRANCHISED DEALERS TO SELECT THEIR OWN METHODS OF TRADE AND
TO PROVIDE MULTILATERAL SURVEILLANCE AND ENFORCEMENT.  THIS PROCESS FOR
ACHIEVING AND ENFORCING THE DESIRED OBJECTIVE CAN BY NO STRETCH OF THE
IMAGINATION BE DESCRIBED AS "UNILATERAL" OR MERELY "PARALLEL."  SEE
PARKE DAVIS, SUPRA, AT 46; FEDERAL TRADE COMM'N V. BEECH-NUT PACKING
CO., 257 U.S. 441, 453; UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321
U.S. 707, 722-723; INTERSTATE CIRCUIT, INC. V. UNITED STATES, 306 U.S.
208, 226; UNITED STATES V. MASONITE CORP., 316 U.S. 265, 275; TURNER,
THE DEFINITION OF AGREEMENT UNDER THE SHERMAN ACT:  CONSCIOUS
PARALLELISM AND REFUSALS TO DEAL, 75 HARV. L. REV. 655 (1962).  (FN20) 

THERE CAN BE NO DOUBT THAT THE EFFECT OF THE COMBINATION OR
CONSPIRACY HERE WAS TO RESTRAIN TRADE AND COMMERCE WITHIN THE MEANING
OF THE SHERMAN ACT.  ELIMINATION, BY JOINT COLLABORATIVE ACTION, OF
DISCOUNTERS FROM ACCESS TO THE MARKET IS A PER SE VIOLATION OF THE
ACT. 

IN KLOR'S, INC. V. BROADWAY-HALE STORES, INC., 359 U.S. 207, THE
COURT WAS CONFRONTED WITH THE QUESTION WHETHER "A GROUP OF POWERFUL
BUSINESSMEN MAY ACT IN CONCERT TO DEPRIVE A SINGLE MERCHANT, LIKE KLOR,
OF THE GOODS HE NEEDS TO COMPETE EFFECTIVELY."  359 U.S., AT 210.  THE
ALLEGATION WAS THAT MANUFACTURERS AND DISTRIBUTORS OF ELECTRICAL
APPLIANCES HAD CONSPIRED AMONG THEMSELVES AND WITH A MAJOR RETAILER,
BROADWAY-HALE, "EITHER NOT TO SELL TO KLOR'S (BROADWAY-HALE'S NEXT-DOOR
NEIGHBOR AND COMPETITOR) OR TO SELL TO IT ONLY AT DISCRIMINATORY PRICES
AND HIGHLY UNFAVORABLE TERMS."  359 U.S., AT 209.  THE COURT CONCLUDED
THAT THE ALLEGED GROUP BOYCOTT OF EVEN A SINGLE TRADER VIOLATED THE
STATUTE (FN21) WITHOUT REGARD TO THE REASONABLENESS OF THE CONDUCT IN
THE CIRCUMSTANCES.  GROUP BOYCOTTS OF A TRADER, SAID THE COURT, ARE
AMONG THOSE "CLASSES OF RESTRAINTS WHICH FROM THEIR 'NATURE OR
CHARACTER' WERE UNDULY RESTRICTIVE  ...  ."  359 U.S., AT 211.  THIS
WAS NOT NEW DOCTRINE, FOR IT HAD LONG BEEN RECOGNIZED THAT "THERE ARE
CERTAIN AGREEMENTS OR PRACTICES WHICH BECAUSE OF THEIR PERNICIOUS
EFFECT ON COMPETITION AND LACK OF ANY REDEEMING VIRTUE ARE CONCLUSIVELY
PRESUMED TO BE UNREASONABLE AND THEREFORE ILLEGAL WITHOUT ELABORATE
INQUIRY AS TO THE PRECISE HARM THEY HAVE CAUSED OR THE BUSINESS EXCUSE
FOR THEIR USE," AND THAT GROUP BOYCOTTS ARE OF THIS CHARACTER. 
NORTHERN PAC. R. CO. V. UNITED STATES, 356 U.S. 1, 5.  SEE ALSO FASHION
ORIGINATORS' GUILD OF AMERICA, INC. V. FEDERAL TRADE COMM'N, 312 U.S.
457, AND EASTERN STATES RETAIL LUMBER DEALERS' ASSN. V. UNITED STATES,
234 U.S. 600, 613-614, NEITHER OF WHICH INVOLVED PRICE-FIXING. 

THE PRINCIPLE OF THESE CASES IS THAT WHERE BUSINESSMEN CONCERT THEIR
ACTIONS IN ORDER TO DEPRIVE OTHERS OF ACCESS TO MERCHANDISE WHICH THE
LATTER WISH TO SELL TO THE PUBLIC, WE NEED NOT INQUIRE INTO THE
ECONOMIC MOTIVATION UNDERLYING THEIR CONDUCT.  SEE BARBER, REFUSALS TO
DEAL UNDER THE FEDERAL ANTITRUST LAWS, 103 U. PA. L. REV. 847, 872-885
(1955).  EXCLUSION OF TRADERS FROM THE MARKET BY MEANS OF COMBINATION
OR CONSPIRACY IS SO INCONSISTENT WITH THE FREE-MARKET PRINCIPLES
EMBODIED IN THE SHERMAN ACT THAT IT IS NOT TO BE SAVED BY REFERENCE TO
THE NEED FOR PRESERVING THE COLLABORATORS' PROFIT MARGINS OR THEIR
SYSTEM FOR DISTRIBUTING AUTOMOBILES, ANY MORE THAN BY REFERENCE TO THE
ALLEGEDLY TORTIOUS CONDUCT AGAINST WHICH A COMBINATION OR CONSPIRACY
MAY BE DIRECTED - AS IN FASHION ORIGINATORS' GUILD OF AMERICA, INC. V.
FEDERAL TRADE COMM'N, SUPRA, AT 468. 

WE NOTE, MOREOVER, THAT INHERENT IN THE SUCCESS OF THE COMBINATION IN
THIS CASE WAS A SUBSTANTIAL RESTRAINT UPON PRICE COMPETITION - A GOAL
UNLAWFUL PER SE WHEN SOUGHT TO BE EFFECTED BY COMBINATION OR
CONSPIRACY.  E.G., UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29,
47; UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 223.  AND THE
PER SE RULE APPLIES EVEN WHEN THE EFFECT UPON PRICES IS INDIRECT. 
SIMPSON V. UNION OIL CO., 377 U.S. 13, 16-22; SOCONY-VACUUM OIL CO.,
SUPRA. 

THERE IS IN THE RECORD AMPLE EVIDENCE THAT ONE OF THE PURPOSES BEHIND
THE CONCERTED EFFORT TO ELIMINATE SALES OF NEW CHEVROLET CARS BY
DISCOUNTERS WAS TO PROTECT FRANCHISED DEALERS FROM REAL OR APPARENT
PRICE COMPETITION.  THE DISCOUNTERS ADVERTISED PRICE SAVINGS.  SEE N.
7, SUPRA.  SOME PURCHASERS FOUND AND OTHERS BELIEVED THAT DISCOUNT
PRICES WERE LOWER THAN THOSE AVAILABLE THROUGH THE FRANCHISED DEALERS. 
IBID.  CERTAINLY, COMPLAINTS ABOUT PRICE COMPETITION WERE PROMINENT IN
THE LETTERS AND TELEGRAMS WITH WHICH THE INDIVIDUAL DEALERS AND
SALESMEN BOMBARDED GENERAL MOTORS IN NOVEMBER 1960.  (FN22)  (FINDING
38.)  AND ALTHOUGH THE DISTRICT COURT FOUND TO THE CONTRARY, THERE IS
EVIDENCE IN THE RECORD THAT GENERAL MOTORS ITSELF WAS NOT UNCONCERNED
ABOUT THE EFFECT OF DISCOUNT SALES UPON GENERAL PRICE LEVELS.  (FN23) 

THE PROTECTION OF PRICE COMPETITION FROM CONSPIRATORIAL RESTRAINT IS
AN OBJECT OF SPECIAL SOLICITUDE UNDER THE ANTITRUST LAWS.  WE CANNOT
RESPECT THAT SOLICITUDE BY CLOSING OUR EYES TO THE EFFECT UPON PRICE
COMPETITION OF THE REMOVAL FROM THE MARKET, BY COMBINATION OR
CONSPIRACY, OF A CLASS OF TRADERS.  NOR DO WE PROPOSE TO CONSTRUE THE
SHERMAN ACT TO PROHIBIT CONSPIRACIES TO FIX PRICES AT WHICH COMPETITORS
MAY SELL, BUT TO ALLOW CONSPIRACIES OR COMBINATIONS TO PUT COMPETITORS
OUT OF BUSINESS ENTIRELY. 

ACCORDINGLY, WE REVERSE AND REMAND TO THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA IN ORDER THAT IT MAY
FASHION APPROPRIATE EQUITABLE RELIEF.  SEE UNITED STATES V. PARKE,
DAVIS & CO., SUPRA, AT 47-48.  IT IS SO ORDERED. 

FN1  THE STATUTE READS IN RELEVANT PART:  "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  ...  ."  26 STAT. 209, 15
U.S.C. SEC 1 (1964 ED.).    FN2  NAMED AS CO-CONSPIRATORS BUT NOT AS
DEFENDANTS ARE "THE OFFICERS, DIRECTORS, AND MEMBERS OF THE THREE
ASSOCIATIONS, CERTAIN OFFICERS AND EMPLOYEES OF SUCH MEMBERS, CERTAIN
OFFICERS AND EMPLOYEES OF GENERAL MOTORS, OTHER CHEVROLET DEALERS IN
THE SOUTHERN CALIFORNIA AREA, AND OTHERS TO THE PLAINTIFF UNKNOWN ...
." 

FN3  SINCE THE EVIDENCE DOES NOT CONSISTENTLY DISTINGUISH BETWEEN
"DISCOUNT HOUSES" AND "REFERRAL SERVICES," BASED EITHER ON THE VARIETY
OF GOODS OFFERED TO THE PUBLIC OR ON THE NATURE OF THE ARRANGEMENT
BETWEEN THE ESTABLISHMENT AND THE FRANCHISED DEALER WHICH SUPPLIED IT
WITH CARS, WE SHALL HEREINAFTER USE THE TERM "DISCOUNTER" TO EMBRACE
ALL SUCH ESTABLISHMENTS.    FN4  ONE DEALER, FOR EXAMPLE, PAID ITS
REFERRAL SERVICE ONE-THIRD OF THE GROSS PROFIT ON EACH SALE, UP TO $75,
THERE BEING NO FIXED PRICE AT WHICH THE SALE WAS TO TAKE PLACE.  THE
SAME DEALER EARLIER HAD PAID A FLAT FEE OF $17.50 FOR EVERY REFERRAL,
WHETHER OR NOT THE SALE WAS CONSUMMATED. 

FN5  AT LEAST ONE DISCOUNT HOUSE ACTUALLY PURCHASED ITS CARS FROM
COOPERATIVE DEALERS, THEN RESOLD THEM TO ITS CUSTOMERS.  IN THIS
SITUATION, WHICH IN THE TRADE IS REFERRED TO AS "BOOTLEGGING," THE
CUSTOMER DOES NOT RECEIVE A NEW-CAR WARRANTY.  GENERAL MOTORS, WHILE
DISAPPROVING OF THE PRACTICE, DOES NOT ASSERT THAT IT VIOLATES THE
"LOCATION CLAUSE."  IN THOSE ARRANGEMENTS AGAINST WHICH GENERAL MOTORS
AND THE ASSOCIATIONS DID DIRECT THEIR EFFORTS, TITLE TO THE NEW CAR
PASSED DIRECTLY FROM DEALER TO RETAIL CUSTOMER, WHO THUS OBTAINED A NEW
CAR WARRANTY AND SERVICE AGREEMENT. 

THERE MUST ALSO BE DISTINGUISHED THE UBIQUITOUS PRACTICE OF USING
"BIRD DOGS" - INFORMAL SOURCES WHO STEER OCCASIONAL CUSTOMERS TOWARD A
PARTICULAR DEALER, IN RETURN FOR RELATIVELY SMALL FEES - OFTEN A BOTTLE
OF LIQUOR.  THIS PRACTICE IS NOT ONLY DEEMED BY GENERAL MOTORS NOT TO
VIOLATE THE "LOCATION CLAUSE," BUT HAS THE CORPORATION'S ENDORSEMENT AS
A DESIRABLE SALES DEVICE. 

FN6  AS THE DISTRICT COURT FOUND, 70% OF THE LOCAL CHEVROLET DEALERS
WERE LOCATED WITHIN FIVE MILES OF ONE OR MORE OF THE 23 DISCOUNT HOUSE
OR REFERRAL OUTLETS. 

FN7  THERE IS EVIDENCE IN THE RECORD THAT DISCOUNT SALES UNDERCUT THE
PRICES AT WHICH FRANCHISED DEALERS WERE ABLE TO, OR CHOSE TO, COMPETE. 
TWO PURCHASERS OF CHEVROLETS, ONE ON REFERRAL AND THE OTHER IN A
DISCOUNT HOUSE "SALE," TESTIFIED THAT THEY HAD "SHOPPED" OTHER DEALERS
BUT FOUND THE DISCOUNT AND REFERRAL PRICES LOWER.  DEALERS AND THEIR
SALESMEN COMPLAINED TO GENERAL MOTORS ABOUT SALES LOST THROUGH
INABILITY TO MEET THE DISCOUNTERS' PRICE.  MOREOVER, THE DISCOUNTERS
ADVERTISED AND ACTUALLY PROVIDED AUTO LOANS AT INTEREST RATES
SUBSTANTIALLY LOWER THAN THOSE OFFERED BY G.M.A.C., GENERAL MOTORS
FINANCING SUBSIDIARY. 

THERE IS ALSO EVIDENCE THAT IT WAS NOT JUST PRICE ITSELF WHICH
INDUCED CUSTOMERS TO PURCHASE CHEVROLETS THROUGH THE DISCOUNTERS.  ONE
CUSTOMER TESTIFIED THAT HE PREFERRED THE DISCOUNT HOUSE BECAUSE HE
THEREBY AVOIDED THE HAGGLING OVER PRICE WHICH SEEMS AN INEVITABLE FACET
OF PURCHASING A CAR IN THE ORTHODOX WAY.  OTHERS APPARENTLY ASSUMED,
WITHOUT BOTHERING TO CONFIRM BY COMPARISON SHOPPING, THAT "DISCOUNT"
STORES WOULD OFFER LOWER PRICES.  THIS ASSUMPTION WAS FED BY DISCOUNT
HOUSE ADVERTISING WHICH PROMISED "THE LOWEST PRICE ANYWHERE" AND
"SAVINGS OF HUNDREDS OF DOLLARS." 

FN8  DEALER BIGGS PUT THE SAME SENTIMENTS INTO A LETTER TO BOTH KEOWN
AND CHEVROLET'S ZONE MANAGER O'CONNOR, WRITTEN ON NOVEMBER 5, 1960. 
THE DAY BEFORE, IN O'CONNOR'S PRESENCE, KEOWN HAD CHALLENGED BIGGS TO
JUSTIFY HIS DEALINGS WITH THE DISCOUNTERS.  BIGGS WROTE: "WE WOULD BE
MOST RELUCTANT TO DISCARD AN ACCOUNT AS GOOD AS THIS ONE WITHOUT RATHER
CONCRETE ASSURANCE THAT IT WOULD NOT IMMEDIATELY BE PICKED UP BY
ANOTHER CHEVROLET DEALER."  TWO WEEKS LATER, O'CONNOR FORWARDED BIGGS'
LETTER TO GENERAL MOTORS OFFICIALS IN DETROIT. 

FN9  IN KEOWN'S WORDS, "WE WERE SEEKING THE ASSISTANCE OF THE HIGHER
ECHELON OFFICIALS OF CHEVROLET AND GENERAL MOTORS IN BRINGING ABOUT AN
END TO THE DISCOUNT HOUSE SALE OF CHEVROLETS." 

FN10  O'CONNOR'S REPORT, DATED NOVEMBER 22, RECOUNTED THAT "ZONE
MANAGEMENT" HAD TALKED WITH THE OFFENDING DEALERS "IN AN ATTEMPT TO
HAVE THEM DESIST," AND THAT "OUR DEALER ASSOCIATIONS HAVE FORMED A
COMMITTEE TO CALL ON THE SUPPLYING DEALERS AND HAVE ASKED THEM AND HAVE
ATTEMPTED TO PERSUADE THEM TO DISCONTINUE THIS PRACTICE."  SUPPORTED BY
A COPY OF DEALER BIGGS' LETTER, SEE N. 8, SUPRA, O'CONNOR PREDICTED
THAT "MANY DEALERS WILL CEASE THIS TYPE OF BUSINESS IF THEY HAD ANY
ASSURANCE THAT THE ACCOUNT WOULD NOT BE PICKED UP BY SOME OTHER DEALER,
IMMEDIATELY UPON RELINQUISHMENT." 

FN11  ROCHE WROTE TO THOSE DEALERS WHO HAD COMPLAINED DIRECTLY TO
JOHN GORDON, THEN PRESIDENT OF GENERAL MOTORS.  ON DECEMBER 29, 1960, A
VIRTUALLY IDENTICAL LETTER WENT OUT TO ALL GENERAL MOTORS DEALERS
THROUGHOUT THE NATION, UNDER THE SIGNATURE OF THE GENERAL SALES
MANAGERS FOR THE RESPECTIVE DIVISIONS. 

FN12  ONE DEALER TESTIFIED THAT HE ABRUPTLY TERMINATED ARRANGEMENTS
LONG MAINTAINED WITH TWO DISCOUNT HOUSES, DESPITE THE FACT THAT ONE OF
THESE CONNECTIONS OWED HIM $20,000 AND THE OTHER $28,000.  IN THE
PRECEDING FOUR WEEKS THE LATTER HAD REDUCED ITS INDEBTEDNESS BY $52,000
AND COULD REASONABLY HAVE BEEN EXPECTED TO ERASE IT COMPLETELY WITHIN A
FEW WEEKS.  THE DEALER ANTICIPATED THAT UPON CANCELLATION OF THE
ACCOUNTS THESE DEBTS WOULD BECOME UNCOLLECTIBLE.  HIS FEARS WERE
JUSTIFIED.  THE ACCOUNTS WERE TERMINATED.  THE DEBTS REMAINED UNPAID. 

FN13  ACCORDING TO FRANCIS BRUDER, A DEALER WHO HAD BEEN DOING
BUSINESS WITH THE DISCOUNTERS SINCE 1957, "CASH TOLD ME THAT HE FELT
CERTAIN THAT THE OTHER DEALERS WOULD DISCONTINUE DEALING WITH DISCOUNT
HOUSES AND REFERRAL SERVICES AS WELL.  I LEFT THIS MEETING WITH THE
IMPRESSION THAT EVERY DEALER WHO HAD BEEN DOING BUSINESS WITH A
DISCOUNT HOUSE OR REFERRAL SERVICE WOULD SOON QUIT." 

THIS WAS PRECISELY THE IMPRESSION GENERAL MOTORS HAD INTENDED TO
IMPLANT.  AS WAS EXPLAINED IN AN INTER-OFFICE MEMORANDUM TO THE GENERAL
SALES MANAGER OF GENERAL MOTORS' CHEVROLET DIVISION, "ALL DEALERS WERE
TALKED TO IN ORDER THAT EVERY DEALER WITH WHOM THE SUBJECT WAS
DISCUSSED WOULD KNOW THAT A SIMILAR DISCUSSION WAS BEING HELD WITH ALL
OTHER DEALERS SO THAT, IF CERTAIN DEALERS SHOULD ELECT TO DISCONTINUE
THEIR COOPERATION WITH A DISCOUNT HOUSE, WE MIGHT BE ABLE TO DISCOURAGE
SOME OTHER DEALER WHO MIGHT BE SOLICITED FROM STARTING THE PRACTICE." 

FN14  THE DISTRICT COURT CHARACTERIZED THIS DECEMBER 15 MEETING AS
THE FIRST BETWEEN REPRESENTATIVES OF THE THREE ASSOCIATIONS, PERTAINING
TO THE PROBLEM OF DISCOUNT HOUSE AND REFERRAL SALES.  HOWEVER, AS WE
HAVE PREVIOUSLY NOTED, N. 10, SUPRA, O'CONNOR REPORTED TO GENERAL
MOTORS THREE WEEKS EARLIER, ON NOVEMBER 22, THAT THE THREE ASSOCIATIONS
HAD FORMED A COMMITTEE WHICH ALREADY HAD CALLED UPON NONCONFORMING
DEALERS.  THE RECORD DOES NOT ENABLE US TO RESOLVE THIS FACTUAL
CONFLICT, NOR IS ITS RESOLUTION IMPORTANT.  ON EITHER VERSION, THE
APPELLEE ASSOCIATIONS ENTERED INTO AN EXPLICIT AGREEMENT TO ACT
TOGETHER TO ELIMINATE THE NEW MODE OF INTRABRAND COMPETITION. 

FN15  THE GOVERNMENT'S COMPLAINT CONTAINS NO REFERENCE TO THE
"LOCATION CLAUSE," AND THE GOVERNMENT CONCEDES THAT ITS CASE WAS TRIED
ON A CONSPIRACY THEORY, THE DEFENDANTS INJECTING THE CONTRACTUAL ISSUE
BY WAY OF DEFENSE.  TRIAL COUNSEL FOR THE GOVERNMENT DID ADVERT TO THE
CLAUSE IN THE DISTRICT COURT, BUT IT DOES NOT APPEAR THAT HE CHALLENGED
ITS VALIDITY, AS CONSTRUED, IN THE SAME SENSE THAT THE GOVERNMENT DOES
HERE.  SEE TRIAL TRANSCRIPT, PP.  9, 17-18.  IN LIGHT OF OUR
DISPOSITION OF THE CASE, WE HAVE NO OCCASION TO CONSIDER WHETHER THE
GOVERNMENT'S ARGUMENT DIRECTED TO THE CLAUSE, AS CONSTRUED, IS PROPERLY
BEFORE US. 

FN16  WE NOTE THAT, AS IN UNITED STATES V. PARKE, DAVIS & CO., 362
U.S. 29, 44-45, THE ULTIMATE CONCLUSION BY THE TRIAL JUDGE, THAT THE
DEFENDANTS' CONDUCT DID NOT CONSTITUTE A COMBINATION OR CONSPIRACY IN
VIOLATION OF THE SHERMAN ACT, IS NOT TO BE SHIELDED BY THE "CLEARLY
ERRONEOUS" TEST EMBODIED IN RULE 52(A) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  THAT RULE IN PART PROVIDES: "FINDINGS OF FACT SHALL NOT BE
SET ASIDE UNLESS CLEARLY ERRONEOUS, AND DUE REGARD SHALL BE GIVEN TO
THE OPPORTUNITY OF THE TRIAL COURT TO JUDGE OF THE CREDIBILITY OF THE
WITNESSES."  AS IN PARKE DAVIS, SUPRA, THE QUESTION HERE IS NOT ONE OF
"FACT," BUT CONSISTS RATHER OF THE LEGAL STANDARD REQUIRED TO BE
APPLIED TO THE UNDISPUTED FACTS OF THE CASE.  SEE UNITED STATES V.
SINGER MFG. CO., 374 U.S. 174, 194, N. 9; UNITED STATES V. MISSISSIPPI
VALLEY CO., 364 U.S. 520, 526, AND CASES THERE CITED. 

MOREOVER, THE TRIAL COURT'S CUSTOMARY OPPORTUNITY TO EVALUATE THE
DEMEANOR AND THUS THE CREDIBILITY OF THE WITNESSES, WHICH IS THE
RATIONALE BEHIND RULE 52(A) (SEE UNITED STATES V. OREGON STATE MED. 
SOC., 343 U.S. 326, 331-332), PLAYS ONLY A RESTRICTED ROLE HERE.  THIS
WAS ESSENTIALLY A "PAPER CASE."  IT DID NOT UNFOLD BY THE TESTIMONY OF
"LIVE" WITNESSES.  OF THE 38 WITNESSES WHO GAVE TESTIMONY, ONLY THREE
APPEARED IN PERSON.  THE TESTIMONY OF THE OTHER 35 WITNESSES WAS
SUBMITTED EITHER BY AFFIDAVIT, BY DEPOSITION, OR IN THE FORM OF AN
AGREED-UPON NARRATIVE OF TESTIMONY GIVEN IN THE EARLIER CRIMINAL
PROCEEDING BEFORE ANOTHER JUDGE.  A VAST NUMBER OF DOCUMENTS WERE ALSO
INTRODUCED, AND BEAR ON THE QUESTION FOR DECISION. 

IN ANY EVENT, WE RESORT TO THE RECORD NOT TO CONTRADICT THE TRIAL
COURT'S FINDINGS OF FACT, AS DISTINGUISHED FROM ITS CONCLUSORY
"FINDINGS," BUT TO SUPPLEMENT THE COURT'S FACTUAL FINDINGS AND TO
ASSIST US IN DETERMINING WHETHER THEY SUPPORT THE COURT'S ULTIMATE
LEGAL CONCLUSION THAT THERE WAS NO CONSPIRACY. 

FN17  THE DECEMBER LETTERS TO ALL DEALERS SAID ONLY THAT "IN EFFECT,
IN SOME INSTANCES" THE ARRANGEMENTS IN QUESTION MIGHT VIOLATE THE
UNAUTHORIZED LOCATION CLAUSE OF THE DEALER SELLING AGREEMENT.  NO
DEALER WAS TOLD, EITHER BY LETTER OR IN PERSON, THAT ITS CONDUCT
VIOLATED THE FRANCHISE AGREEMENT, AND NO DEALER WAS WARNED THAT
CONTINUANCE OF DISCOUNT HOUSE OR REFERRAL SALES WOULD RESULT IN
TERMINATION OF ITS FRANCHISE.  ZONE MANAGER O'CONNOR DID NOT REGARD HIS
INSTRUCTIONS FROM DETROIT AS AUTHORIZING HIM TO GO THAT FAR, AND HE WAS
OF THE VIEW THAT "THE GENERAL LETTER TO ALL DEALERS DIDN'T SUGGEST ANY
SUCH THING." 

FN18  WE REFER TO THIS WITHOUT CONSIDERING WHETHER GENERAL MOTORS
COULD LAWFULLY HAVE TAKEN SUCH ACTION. 

FN19 JAMES ROCHE TESTIFIED, "IT IS NOT GENERAL MOTORS' PRACTICE TO
THREATEN DEALERS WITH TERMINATION OF THEIR FRANCHISE."  GOOD DEALERS
AND DEALER LOCATIONS, HE SAID, ARE HARD TO COME BY. IN MANY
DEALERSHIPS, GENERAL MOTORS ITSELF HAS INVESTED SUBSTANTIAL FUNDS. 
THEREFORE, SAID ROCHE, "WE WOULD NOT WANT OUR PEOPLE TO GO IN AND WAVE
THE FRANCHISE AGREEMENT, SELLING AGREEMENT, AND THREATEN THE DEALER
WITH TERMINATION IN THE EVENT HE DIDN'T AGREE, AFTER FOLLOWING - AFTER
READING A LETTER HE WAS VIOLATING OUR AGREEMENT AND SHOULD CHANGE HIS
PRACTICE.  INSTEAD WE EXPECTED THAT THIS WOULD BE HANDLED ON A SOUND,
CALM, SENSIBLE BUSINESS-LIKE APPROACH." 

THERE ARE ALSO STATUTORY INHIBITIONS ON THE RIGHT OF AN AUTOMOBILE
MANUFACTURER TO TERMINATE DEALER FRANCHISES.  SEE ACT OF AUG. 8, 1956,
C. 1038, SEC 2, 70 STAT. 1125, 15 U.S.C. SEC 1222 (1964 ED.); KESSLER &
STERN, COMPETITION, CONTRACT, AND VERTICAL INTEGRATION, 69 YALE L.J. 1,
103-114 (1959). 

FN20  COMPARE KLEIN V. AMERICAN LUGGAGE WORKS, INC., 323 F.2D 787
(C.A. 3D CIR. 1963), AND GRAHAM V. TRIANGLE PUBLICATIONS, INC., 233 F.
SUPP. 825 (D.C.E.D. PA. 1964), AFF'D PER CURIAM, 344 F.2D 775 (C.A. 3D
CIR. 1965), DISCUSSED IN FULDA, INDIVIDUAL REFUSALS TO DEAL:  WHEN DOES
SINGLE-FIRM CONDUCT BECOME VERTICLE RESTRAINT?  30 LAW & CONTEMP. 
PROB.  590, 592-597 (1965). 

FN21  THE COMPLAINT IN KLOR'S CHARGED A VIOLATION OF SEC 2 OF THE
SHERMAN ACT, AS WELL AS OF SEC 1.  IN THE PRESENT CASE, THE GOVERNMENT
DID NOT CHARGE THE APPELLEES UNDER SEC 2, WHICH PROVIDES THAT "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.
SEC 2 (1964 ED.). 

FN22  EVIDENCE ON THIS SUBJECT WAS ADMITTED SOLELY FOR THE PURPOSE OF
SHOWING THE DEALERS' STATE OF MIND, RATHER THAN TO PROVE THE EXISTENCE
OF ACTUAL PRICE-CUTTING BY THE DISCOUNTERS.  BUT THE COLLABORATORS'
STATE OF MIND IS OF SIGNIFICANCE HERE. 

FN23  IN AN INTER-OFFICE MEMORANDUM, CIRCULATED AMONG GENERAL MOTORS
OFFICIALS IMMEDIATELY PRIOR TO FORMULATION OF CORPORATE POLICY VIS-A
VIS THE DISCOUNTERS, IT WAS STATED THAT "IT WOULD APPEAR THAT ONE OF
THE REAL HAZARDS OF CONDONING THIS TYPE OF OPERATION IS THAT DISCOUNTED
PRICES ARE FREELY QUOTED TO A LARGE PORTION OF THE PUBLIC."  MOREOVER,
WE NOTE THAT SOME DISCOUNTERS ADVERTISED THAT THEY WOULD FINANCE NEW
CAR PURCHASES AT AN INTEREST RATE OF 5 1/2%, A RATE SUBSTANTIALLY LOWER
THAN THAT AVAILABLE AT FRANCHISED CHEVROLET DEALERS THROUGH G.M.A.C., A
SUBSIDIARY OF GENERAL MOTORS CORPORATION.  SEE N. 7, SUPRA. FINALLY, IT
IS CONCEDED THAT GENERAL MOTORS IS INTENSELY CONCERNED THAT EACH OF ITS
DEALERS HAS AN ADEQUATE "PROFIT OPPORTUNITY" (SEE FINDING 17), A
CONCERN WHICH NECESSARILY INVOLVES CONSIDERATION OF THE PRICE REALIZED
BY DEALERS. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

ALTHOUGH I CONSIDER THAT UNITED STATES V. PARKE, DAVIS & CO., 362
U.S. 29, DECIDED IN 1960, REPRESENTS BASICALLY UNSOUND ANTITRUST
DOCTRINE, SEE MY DISSENTING OPINION, 362 U.S., AT 49, I SEE NO ESCAPE
FROM THE CONCLUSION THAT IT CONTROLS THIS CASE.  PARKE DAVIS HELD THAT
A MANUFACTURER CANNOT MAINTAIN RESALE PRICES BY REFUSING TO SELL TO
THOSE WHO DO NOT FOLLOW HIS SUGGESTED PRICES IF THE REFUSAL IS ATTENDED
BY CONCERTED ACTION WITH HIS CUSTOMERS, EVEN THOUGH HE MAY UNILATERALLY
SO CONDUCT HIMSELF.  SEE UNITED STATES V. COLGATE & CO., 250 U.S. 300. 
ALTHOUGH PARKE DAVIS RELATED TO ALLEGED PRICE-FIXING, I HAVE BEEN
UNABLE TO DISCERN ANY TENABLE REASON FOR DIFFERENTIATING IT FROM A CASE
INVOLVING, AS HERE, ALLEGED BOYCOTTING.  THE CONCLUSION THAT PARKE
DAVIS GOVERNS THE PRESENT CASE IS THEREFORE UNAVOIDABLE, GIVEN THE
UNDISPUTED EVIDENCE THAT GENERAL MOTORS ACTED IN CONCERT WITH ITS
DEALERS IN ENFORCING THE LOCATION CLAUSE.  IN MY OPINION, HOWEVER,
GENERAL MOTORS IS NOT PRECLUDED FROM ENFORCING THE LOCATION CLAUSE BY
UNILATERAL ACTION, AND I FIND NOTHING IN THE COURT'S OPINION TO THE
CONTRARY.    ON THIS BASIS I CONCUR IN THE JUDGMENT OF THE COURT. 
..END :























NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. OVERSTREET
384 U.S. 118 


NO. 505.  ARGUED MARCH 29, 1966.  - DECIDED APRIL 27, 1966.  - 221 GA.
16, 142 S.E.2D 816, CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 


NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE ET AL. V.
OVERSTREET. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BRENNAN
AND MR. JUSTICE FORTAS CONCUR, DISSENTING. 

IN MAY 1962, A 14-YEAR-OLD NEGRO BOY COMPLAINED TO HIS SCHOOL
PRINCIPAL AND TO HIS MOTHER THAT HE HAD BEEN MISTREATED BY RESPONDENT. 
THE BOY CLAIMED THAT RESPONDENT, THE OWNER OF A MARKET AT WHICH THE BOY
WAS EMPLOYED, HAD ACCUSED HIM OF STEALING MERCHANDISE AND HAD
THEREAFTER SLAPPED AND KICKED HIM.  THE TRUTH OF THIS CHARGE REMAINS
DISPUTED.  THE BOY'S MOTHER, DISSATISFIED WITH THE RESPONSE OF THE
LOCAL POLICE, CONTACTED THE SAVANNAH BRANCH OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE.  THE BRANCH RESPONDED BY
ORGANIZING A CAMPAIGN TO WITHHOLD PATRONAGE FROM RESPONDENT.  PICKETS
WERE ESTABLISHED, AND CUSTOMERS WERE ASKED TO REFRAIN FROM SHOPPING IN
THE MARKET.  ALTHOUGH THE RECORD DOES NOT CONTAIN ANY EVIDENCE OF
MISCONDUCT ON THE PART OF THE BRANCH'S MEMBERS OR OFFICERS, THE
PICKETING APPARENTLY ATTRACTED SUBSTANTIAL CROWDS.  THERE WERE
INCIDENTS INVOLVING THE INTIMIDATION OF CUSTOMERS, BLOCKING OF
SIDEWALKS, AND SCATTERED INCIDENTS OF VIOLENCE.  THE TRIAL JUDGE
INSTRUCTED THE JURY THAT IT MIGHT HOLD THE BRANCH RESPONSIBLE FOR THE
RESPONDENT'S. DAMAGES IF IT FOUND THAT THE PICKETING WAS THE "PROXIMATE
CAUSE" OF THE MISCONDUCT OF OTHERS.  (FN1) THE JUDGE FURTHER INSTRUCTED
THE JURY THAT SHOULD IT HOLD THE BRANCH LIABLE, IT MIGHT ALSO HOLD
PETITIONER - THE NATIONAL NAACP - IF THE BRANCH WERE FOUND TO BE ITS
"AGENT."  THE JURY HELD BOTH THE BRANCH AND PETITIONER LIABLE.  DAMAGES
TOTALING $85,793 WERE ASSESSED:  THIS FIGURE INCLUDES $50,000 IN
PUNITIVE DAMAGES.  THE GEORGIA SUPREME COURT AFFIRMED, 221 GA.  16, 142
S.E.2D 816, AND WE GRANTED CERTIORARI, LIMITED TO THE QUESTION OF
WHETHER HOLDING PETITIONER, THE NATIONAL ORGANIZATION, LIABLE "FOR ACTS
PERFORMED WITHOUT ITS KNOWLEDGE AND BY PERSONS BEYOND ITS CONTROL"
DENIED IT RIGHTS SECURED BY THE FOURTEENTH AMENDMENT.  382 U.S. 937. 

RESPONDENT HAS SUFFERED ECONOMIC LOSS AS A RESULT OF THE CONDUCT OF
THOSE WHO BLOCKED HIS SIDEWALK AND THREATENED HIS CUSTOMERS.  I ASSUME
THAT NOTHING IN THE CONSTITUTION BARS RECOVERY FOR HIS INJURIES FROM
THOSE INDIVIDUALS.  SEE GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490. 
THE COURTS BELOW FOUND THAT THE BRANCH WAS RESPONSIBLE FOR THESE
INJURIES, AND NO QUESTIONS AS TO THAT ASPECT OF THE CASE ARE NOW BEFORE
US.  WE HAVE ONLY THE QUESTION WHETHER, GIVEN THE LIABILITY OF THE
BRANCH, PETITIONER, THE NATIONAL NAACP, MAY BE HELD RESPONSIBLE FOR
RESPONDENT'S LOSS - AND FOR THE PUNITIVE DAMAGES IMPOSED. 

THE AMENDED COMPLAINT ALLEGED THAT W.W. LAW, AN OFFICER OF THE
BRANCH, "IN USING SUCH TACTICS, WAS ACTING IN AND FOR THE SERVICES" OF
PETITIONER "AS ITS AGENT, EMPLOYEE, AND SERVANT, WITHIN THE SCOPE OF
SAID AGENCY, EMPLOYMENT AND SERVICE."  THAT ALLEGATION WAS DENIED BY
PETITIONER AND THE RECORD DOES NOT CONTAIN ONE IOTA OF PROOF THAT
PETITIONER CONTROLLED, AUTHORIZED, OR EVEN KNEW OF THESE ACTIVITIES. 

PETITIONER IS A NONPROFIT CORPORATION ORGANIZED IN NEW YORK FOR THE
PURPOSE OF PROMOTING EQUALITY OF TREATMENT FOR NEGRO CITIZENS.  (FN2)
THE BRANCH IS CONCEDEDLY AN AFFILIATE OF THAT NATIONAL ORGANIZATION.  A
PORTION OF THE DUES IT COLLECTS IS FORWARDED TO THE NATIONAL, AND
MEMBERS OF THE LOCAL BRANCH ARE AUTOMATICALLY MEMBERS OF THE NATIONAL
ORGANIZATION.  MEMBERS OF THE LOCAL ASSOCIATION CAN AND DO ATTEND THE
ANNUAL NATIONAL CONVENTION AT WHICH THEY PARTICIPATE IN WORKSHOPS AND
DISCUSSIONS RELATING TO NAACP ACTIVITIES.  THE BRANCH MAKES AN ANNUAL
REPORT OF ITS ACTIVITIES TO THE NATIONAL NAACP. 

THAT, FOR ALL THE RECORD SHOWS, IS THE FULL EXTENT OF THE RELATIONS
BETWEEN PETITIONER AND THE BRANCH.  THERE IS NO EVIDENCE OF ANY POWER
ON THE PART OF PETITIONER TO CONTROL THE CONDUCT OF THE BRANCH.  THERE
IS NO EVIDENCE OF ANY EFFORT IN PAST YEARS BY PETITIONER TO EXERCISE
SUCH CONTROL.  THE BRANCH OFFICERS WERE NOT, FOR ALL THE RECORD SHOWS,
NATIONAL OFFICERS.  THE PETITIONER DID NOT ORDER THE DEMONSTRATIONS NOR
DID IT AUTHORIZE THEM.  THE RECORD AFFIRMATIVELY SHOWS THAT PETITIONER
HAD NO KNOWLEDGE OF THE DEMONSTRATIONS AGAINST RESPONDENT AND DID NOT
LEARN OF THEM UNTIL IT WAS SENT THE RESTRAINING ORDER THAT WAS SERVED
UPON THE BRANCH PRESIDENT.  AND NOTHING IN THE RECORD SUGGESTS
"RATIFICATION" - EVEN BY INACTION OVER A SUSTAINED PERIOD - OF THE
LOCAL'S ACTIVITIES AGAINST RESPONDENT OR OF SIMILAR ACTIVITIES. 

THE STANDARDS BY WHICH THE TRIAL COURT ALLOWED THIS "AGENCY" TO BE
MEASURED WERE, TO SAY THE LEAST, UNCLEAR.  THE TRIAL JUDGE INSTRUCTED
THE JURY THAT THE PETITIONER WAS A NEW YORK CORPORATION WHICH COULD
"ONLY BE REPRESENTED IN GEORGIA BY AGENTS, AND THE AGENTS MUST CONDUCT
THEMSELVES IN A MANNER THAT IS COMPATIBLE WITH THE PURPOSES OF THAT
ORGANIZATION."  HE THEN INSTRUCTED AS FOLLOWS: 

"NOW DID THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE HAVE AN AGENT IN SAVANNAH?   WHO WAS THAT AGENT?  WAS IT W.W.
LAW (THE BRANCH'S RESIDENT)?  ...  IS THE NATIONAL ASSOCIATION
RESPONSIBLE FOR WHAT THIS AFFILIATE DOES?  ...  ARE THEY SO CONNECTED
THAT ONE IS RESPONSIBLE FOR THE ACT OF THE OTHER BY REASON OF THE
AGENCY; BY REASON OF THEIR CONCERTED ACTIVITIES AS EXPRESSED IN THIS
CONSPIRACY?  AS THE COURT SEES IT, YOU CAN'T GET AGENCY AND CONSPIRACY
SEPARATED IN THIS CASE.  A CORPORATION MAY BE A MEMBER OF A CONSPIRACY
IF ITS OFFICERS AND AGENTS TAKE PART IN IT AND IT FURTHERS THE
CONSPIRACY.  YOU LOOK TO THE EVIDENCE AND SEE IF IT PREPONDERATES AS TO
THESE ORGANIZATIONS.  WAS THERE AN AGENCY THAT BOUND THE NATIONAL
ASSOCIATION  ...  ?  DID THEY PARTICIPATE THROUGH THEIR AGENTS AND
MEMBERS AND PEOPLE WHO HAD A RIGHT TO BIND THEM IN THIS CONSPIRACY?" 

THESE INSTRUCTIONS, TO WHICH THE DEFENDANTS EXCEPTED AND ASSIGNED AS
ERROR ON APPEAL, GAVE THE JURY LITTLE GUIDANCE AS TO THE CIRCUMSTANCES
IN WHICH IT WOULD BE APPROPRIATE TO HOLD LIABLE THE NATIONAL NAACP. 
THE REMARKS OF THE TRIAL JUDGE IN CONSIDERING PETITIONER'S MOTION FOR A
NONSUIT ARE, IN THIS RESPECT, REVEALING:  "SO FAR AS THE EVIDENCE IS
CONCERNED, THERE IS NO EVIDENCE TO THE EFFECT THAT ANY MEMBER OF THE
BRANCH WAS THE AGENT OF THE NATIONAL CORPORATION.  IN OTHER WORDS, THEY
WERE JUST AFFILIATED." 

TO EQUATE THE LIABILITY OF THE NATIONAL ORGANIZATION WITH THAT OF THE
BRANCH IN THE ABSENCE OF ANY PROOF THAT THE NATIONAL AUTHORIZED OR
RATIFIED THE MISCONDUCT IN QUESTION COULD ULTIMATELY DESTROY IT.  THE
RIGHTS OF POLITICAL ASSOCIATION ARE FRAGILE ENOUGH WITHOUT ADDING THE
ADDITIONAL THREAT OF DESTRUCTION BY LAWSUIT.  WE HAVE NOT BEEN SLOW TO
RECOGNIZE THAT THE PROTECTION OF THE FIRST AMENDMENT BARS SUBTLE AS
WELL AS OBVIOUS DEVICES BY WHICH POLITICAL ASSOCIATION MIGHT BE
STIFLED.  SEE BATES V. LITTLE ROCK, 361 U.S. 516, 523.  THUS WE HAVE
HELD THAT FORCED DISCLOSURE OF ONE'S POLITICAL ASSOCIATIONS IS, AT
LEAST IN THE ABSENCE OF A COMPELLING STATE INTEREST, INCONSISTENT WITH
THE FIRST AMENDMENT'S GUARANTY OF ASSOCIATIONAL PRIVACY.  E.G.,
DEGREGORY V. NEW HAMPSHIRE, 383 U.S. 825; GIBSON V. FLORIDA LEGISLATIVE
COMM., 372 U.S. 539, 543-546; SHELTON V. TUCKER, 364 U.S. 479;
N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 462-463.  RECOGNIZING THAT GUILT
BY ASSOCIATION IS A PHILOSOPHY ALIEN TO THE TRADITIONS OF A FREE
SOCIETY (SEE SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 245-246)
AND THE FIRST AMENDMENT ITSELF, WE HAVE HELD THAT CIVIL OR CRIMINAL
DISABILITIES MAY NOT BE IMPOSED ON ONE WHO JOINS AN ORGANIZATION WHICH
HAS AMONG ITS PURPOSES THE VIOLENT OVERTHROW OF THE GOVERNMENT, UNLESS
THE INDIVIDUAL JOINS KNOWING OF THE ORGANIZATION'S ILLEGAL PURPOSES
(WIEMAN V. UPDEGRAFF, 344 U.S. 183) AND WITH THE SPECIFIC INTENTION TO
FURTHER THOSE PURPOSES.  SEE ELFBRANDT V.  RUSSELL, ANTE, P. 11;
APTHEKER V. SECRETARY OF STATE, 378 U.S. 500. 

THE PRESENT CASE CONTAINS NO LESS A THREAT TO POLITICAL ASSOCIATION. 
THAT THE THREAT COMES IN THE FORM OF CIVIL SUITS FOR DAMAGES RATHER
THAN THAT OF DIRECT GOVERNMENTAL RESTRAINTS IS OF NO CONSEQUENCE AS WE
NOTED IN NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 265.  TODAY A
JUDGMENT OF MORE THAN $80,000 IS FASTENED ON THE NATIONAL NAACP. 
JURIES HOSTILE TO THE AIMS OF AN ORGANIZATION IN THE EDUCATIONAL OR
POLITICAL FIELD, UNLESS CAREFULLY CONFINED BY METICULOUS INSTRUCTIONS
AND JUDICIAL SUPERVISION, CAN DELIVER CRUSHING VERDICTS THAT MAY STIFLE
ORGANIZED DISSENT FROM THE VIEWS AND POLICIES ACCEPTED BY THE
MAJORITY. 

THIS CASE THUS CARRIES US INTO TERRITORY IN WHICH PRINCIPLES OF STATE
LAW MUST BE ACCOMMODATED WITH OVERRIDING FEDERAL PRECEPTS.  THE LAW OF
AGENCY WHICH A STATE CHOOSES TO FOLLOW FUNCTIONS, FOR THE MOST PART,
FREE OF CONSTITUTIONAL RESTRAINT; IN OUR FEDERAL SYSTEM, EACH STATE MAY
REGULATE THE RELATIONS BETWEEN PRINCIPAL, AGENT, AND THIRD PARTIES
ACCORDING TO ITS OWN STANDARDS OF FAIRNESS AND SOUND POLICY.  BUT WHEN
A STATE POLICY THWARTS INTERESTS WHICH THE FEDERAL CONSTITUTION AFFORDS
SPECIAL PROTECTION, THAT STATE POLICY MUST YIELD.  FOR EXAMPLE, THOUGH
STATE LAW CUSTOMARILY DETERMINES WHETHER A PARTICULAR CONTRACT IS
ENFORCEABLE, NOTWITHSTANDING THE APPLICABLE COMMERCIAL LAW A STATE
COURT MAY NOT ENFORCE COVENANTS RESTRICTING SALE OF REAL PROPERTY TO
NON-WHITES.  SHELLEY V. KRAEMER, 334 U.S. 1.  WHILE THE STATES MAY
PRESERVE ORDER ON THE PUBLIC STREETS AND PUNISH CONDUCT CONSTITUTING A
"BREACH OF THE PEACE" AS DEFINED BY LOCAL LAW, PEACEFUL EXPRESSION MAY
NOT, REGARDLESS OF THE LABEL PUT UPON IT, BE PUNISHED.  CANTWELL V.
CONNECTICUT, 310 U.S. 296.  AND SEE EDWARDS V. SOUTH CAROLINA, 372 U.S.
229.  QUESTIONS OF LEGISLATIVE APPORTIONMENT, THOUGH PRIMARILY MATTERS
OF STATE LAW, MUST BE RESOLVED IN COMPLIANCE WITH THE FEDERAL EQUAL
PROTECTION CLAUSE.  REYNOLDS V. SIMS, 377 U.S. 533.  THE SAME IS TRUE
OF VOTER REGISTRATION, HARPER V. VIRGINIA STATE BOARD OF ELECTIONS, 383
U.S. 663.  STATE REGULATION OF THE PRACTICE OF LAW - MORE SPECIFICALLY,
THE RULES REGARDING SOLICITATION OF LEGAL BUSINESS - MUST YIELD IN
FAVOR OF THE FIRST AMENDMENT RIGHT TO JOIN TOGETHER IN A COMMON EFFORT
TO ASSERT LEGAL RIGHTS.  N.A.A.C.P. V. BUTTON, 371 U.S. 415; RAILROAD
TRAINMEN V. VIRGINIA BAR, 377 U.S. 1. 

IN N.A.A.C.P. V. BUTTON, SUPRA, WE REJECTED THE STATE'S CLAIM THAT
"SOLICITATION" OF LEGAL BUSINESS IS OUTSIDE THE AREA OF FREEDOMS
PROTECTED BY THE FIRST AMENDMENT.  WE SAID THAT "A STATE CANNOT
FORECLOSE THE EXERCISE OF CONSTITUTIONAL RIGHTS BY MERE LABELS."  371
U.S., AT 429.  SO IT SHOULD BE IN THIS CASE.  TERMS SUCH AS "AGENCY"
AND "AFFILIATION" HAVE NO TALISMANIC SIGNIFICANCE.  IN THE CONTEXT OF
THIS CASE, THEY OBSCURE RATHER THAN PROMOTE SOUND ANALYSIS.  THE
QUESTION WE MUST ANSWER IS WHETHER A NATIONAL POLITICAL ASSOCIATION CAN
BE HELD RESPONSIBLE FOR WRONGS COMMITTED BY THOSE BEYOND ITS CONTROL IN
A CONSTITUTIONAL SYSTEM WHERE FREEDOM OF EXPRESSION AND ASSOCIATION IS
TREASURED. 

THE THREATS WHICH POLITICAL ORGANIZATIONS OF THIS KIND TODAY FACE
WERE ONCE A GREAT BURDEN ON LABOR UNIONS.  (FN3)  CONGRESS ACTED TO
RELIEVE THAT BURDEN BY ENACTING SEC 6 OF THE NORRIS-LAGUARDIA ACT: 

"NO OFFICER OR MEMBER OF ANY ASSOCIATION OR ORGANIZATION, AND NO
ASSOCIATION OR ORGANIZATION PARTICIPATING OR INTERESTED IN A LABOR
DISPUTE, SHALL BE HELD RESPONSIBLE OR LIABLE IN ANY COURT OF THE UNITED
STATES FOR THE UNLAWFUL ACTS OF INDIVIDUAL OFFICERS, MEMBERS, OR
AGENTS, EXCEPT UPON CLEAR PROOF OF ACTUAL PARTICIPATION IN, OR ACTUAL
AUTHORIZATION OF, SUCH ACTS, OR OF RATIFICATION OF SUCH ACTS AFTER
ACTUAL KNOWLEDGE THEREOF."  47 STAT. 71. 

SEE BROTHERHOOD OF CARPENTERS V. UNITED STATES, 330 U.S. 395.  WE
RECENTLY HELD IN UNITED MINE WORKERS V. GIBBS, 383 U.S. 715, THAT AN
INTERNATIONAL UNION COULD NOT BE HELD LIABLE FOR THE TORTIOUS CONDUCT
OF A LOCAL IN THE ABSENCE OF "CLEAR PROOF" OF  "PARTICIPATION,
AUTHORIZATION, OR RATIFICATION" BY THE INTERNATIONAL UNION. 

WE HAVE OF COURSE NO LIKE STATUTE HERE.  BUT THE FIRST AMENDMENT,
WHICH COMMANDS VIGILANCE LEST THE RIGHTS IT ASSURES BE DENIED THE
"BREATHING SPACE" (N.A.A.C.P. V. BUTTON, SUPRA, 433) NECESSARY FOR
SURVIVAL, PROVIDES GUIDANCE.  IN MY VIEW, IT FORBIDS THE IMPOSITION OF
LIABILITY ON A NATIONAL POLITICAL ASSOCIATION ON ACCOUNT OF THE
MISCONDUCT OF A LOCAL BRANCH WITHOUT PROOF THAT THE NATIONAL
ORGANIZATION SPECIFICALLY AUTHORIZED OR RATIFIED THE CONDUCT FOR WHICH
LIABILITY IS SOUGHT TO BE IMPOSED.  A GENERAL FINDING OF "AGENCY" OR
"AFFILIATION" IS NOT ENOUGH.  (FN4)  IN THE PRESENT CASE, THE RECORD
DISCLOSES AT MOST A LOOSE RELATIONSHIP BETWEEN PETITIONER AND THIS
INDEPENDENTLY CONTROLLED BRANCH.  THIS RECORD DISCLOSES NO SPECIFIC
AUTHORIZATION OR RATIFICATION BY PETITIONER OF THE ACTS WHICH THE
GEORGIA COURTS FOUND TORTIOUS.  NOR IS THERE ANY EVIDENCE OF ANY
PARTICIPATION BY PETITIONER IN SUCH CONDUCT.  THE TRIAL JUDGE HIMSELF
STATED THAT THERE WAS NO "AGENCY" SHOWN, BUT ONLY AN "AFFILIATION"
BETWEEN PETITIONER AND THE LOCAL BRANCH.  SO WEAK A LINK CANNOT, FOR
THE REASONS I HAVE STATED, WARRANT HOLDING THE NATIONAL NAACP
RESPONSIBLE FOR THE DAMAGES SUSTAINED.    I WOULD REVERSE THIS
JUDGMENT. 

FN1  "I CHARGE YOU THAT IN THIS CASE YOU CAN CONSIDER THE EFFECT OF
THE PICKETING.  DID ...  THE FACT THAT THE PICKETS WERE THERE INCITE
ACTIVITY UPON PEOPLE WHO WERE NOT AT ALL CONNECTED WITH THE
ORGANIZATION?; AND IF THAT WAS INCITED BY THE PICKETS, BY THEIR MERE
PRESENCE, YOU COULD CONSIDER THE PICKETS AND THE PLACING OF THE PICKETS
AS THE PROXIMATE CAUSE OF WHAT RESULTED." 

FN2  SEE N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 451-452.  ITS
CERTIFICATE OF INCORPORATION STATES THAT ITS PRINCIPAL OBJECTIVES ARE
"VOLUNTARILY TO PROMOTE EQUALITY OF RIGHTS AND ERADICATE CASTE OR RACE
PREJUDICE AMONG THE CITIZENS OF THE UNITED STATES; TO ADVANCE THE
INTEREST OF COLORED CITIZENS; TO SECURE FOR THEM IMPARTIAL SUFFRAGE;
AND TO INCREASE THEIR OPPORTUNITIES FOR SECURING JUSTICE IN THE COURTS,
EDUCATION FOR THEIR CHILDREN, EMPLOYMENT ACCORDING TO THEIR ABILITY,
AND COMPLETE EQUALITY BEFORE THE LAW."  IBID. 

FN3  THE BURDENS OF CIVIL SUITS FOR DAMAGES WERE FELT BY THE TRADE
UNION MOVEMENT IN GREAT BRITAIN AS WELL AS IN THIS COUNTRY.  SEE WEBB,
SIDNEY AND BEATRICE, THE HISTORY OF TRADE UNIONISM 597-604 (1965 ED.);
COLE, THE BRITISH WORKING-CLASS MOVEMENT 292-296 (1948). 

FN4  THE FACTORS ON WHICH THE GEORGIA SUPREME COURT RELIED TO SUSTAIN
THE FINDING OF "AGENCY" FALL FAR SHORT OF SHOWING ANY SPECIFIC
AUTHORIZATION BY PETITIONER TO THE SAVANNAH BRANCH TO ENGAGE IN THE
CONDUCT CONDEMNED BELOW.  IT EMPHASIZED THE FOLLOWING POINTS:  (1) BOTH
THE LOCAL AND THE NATIONAL ORGANIZATIONS USE THE NAME "N.A.A.C.P."; (2)
THE PETITION WAS SERVED ON THE BRANCH PRESIDENT AS PETITIONER'S AGENT,
AND PETITIONER MADE NO OBJECTION; (3) THE SAVANNAH BRANCH AND
PETITIONER SHARED CERTAIN COMMON OBJECTIVES; (4) MEMBERS OF THE BRANCH
WERE AUTOMATICALLY MEMBERS OF THE PETITIONER AND A PORTION OF THEIR
DUES WAS FORWARDED TO NEW YORK; AND (5) AT NATIONAL CONVENTIONS,
MEMBERS OF THE LOCAL WERE COUNSELED IN METHODS OF FURTHERING THEIR
EFFORTS IN THE LOCAL DISTRICT THROUGH DISCUSSIONS AND WORKSHOPS.  IN
ADDITION, THE COURT SUGGESTED THAT IF THERE WAS IN FACT NO AGENCY
RELATION, PETITIONER "HAD THE OPTION TO REPUDIATE OR RATIFY THE ACT,
BUT IT WAS REQUIRED TO DO ONE OR THE OTHER.  AND WHERE, AS HERE, IT
NEVER REPUDIATED THE ACT, IT IS DEEMED TO HAVE AFFIRMED IT." 

THE RECORD IS CLEAR THAT THE FIRST NOTICE PETITIONER HAD OF THE
SAVANNAH DEMONSTRATIONS WAS WHEN THE RESTRAINING ORDER WAS FORWARDED TO
IT IN NEW YORK.  BY THIS TIME, THE TEMPORARY RESTRAINING ORDER WAS IN
EFFECT.  THERE WAS, THEREFORE, NO OPPORTUNITY FOR PETITIONER TO
EXERCISE A MODERATING INFLUENCE ON THE LOCAL BRANCH.  COMPARE UNITED
MINE WORKERS V. GIBBS, SUPRA, WHERE THE NATIONAL UNION HAD KNOWLEDGE OF
THE LOCAL'S VIOLENT CONDUCT AND NEVER EXPRESSLY DISAVOWED IT; WE HELD,
NONETHELESS, THAT THERE HAD BEEN NO RATIFICATION ALTHOUGH WE NOTED THAT
HAD IT MADE SOME PUBLIC STATEMENTS CONDEMNING THE VIOLENCE "OUR RESULT
WOULD UNDOUBTEDLY BE FIRMER."  ID., AT 742.  MOREOVER, PETITIONER
SPECIFICALLY DENIED RESPONDENT'S ALLEGATIONS OF AGENCY IN ITS ANSWER
FILED SHORTLY AFTER THE SUIT WAS BEGUN. 

THE MORE DEMANDING REQUIREMENTS OF PROOF WHICH I BELIEVE MUST BE MET
WOULD BE SATISFIED, FOR EXAMPLE, IN A CASE WHERE THE BRANCH INCURRED
SOME LIABILITY ARISING OUT OF ITS COLLECTION OF DUES.  I WOULD EXPECT
THAT SINCE THE DUES PAID TO THE SAVANNAH BRANCH ARE, IN PART, COLLECTED
ON BEHALF OF THE NATIONAL ORGANIZATION, IT WOULD BE A SIMPLE MATTER TO
SHOW SPECIFIC AUTHORITY TO ENGAGE IN THAT ACTIVITY.  PERHAPS IT MIGHT
BE POSSIBLE TO SHOW SPECIFIC AUTHORIZATION TO ENGAGE IN THE CONDUCT
INVOLVED IN THIS CASE; THE RECORD DOES NOT, FOR EXAMPLE, SHOW WHAT
MANNER OF ADVICE AND COUNSEL IS GIVEN THE BRANCH AT NATIONAL
CONVENTIONS.  WHETHER RESPONDENT COULD MEET HIS BURDEN OF PROOF CANNOT,
OF COURSE, BE DETERMINED FROM THE MEAGER RECORD BEFORE US.
..END :





UNITED STATES V. CATTO 384 U.S. 102 


NO. 535.  ARGUED MARCH 22-23, 1966.  - DECIDED APRIL 26, 1966.  - 344
F.2D 225, 227, REVERSED AND REMANDED. 


RESPONDENTS ARE RANCHERS WHO RAISE LIVESTOCK FOR SALE AND MAINTAIN
HERDS FOR BREEDING PURPOSES.  THEY SOLD ANIMALS FROM THE BREEDING HERDS
AND REPORTED THE CAPITAL GAINS THEREFROM ON THEIR FEDERAL TAX RETURNS
IN ACCORD WITH THE "UNIT-LIVESTOCK-PRICE" VARIANT OF THE ACCRUAL METHOD
OF ACCOUNTING THEY HAD SELECTED FOR THEIR OVERALL RANCHING OPERATIONS. 
THEY FILED REFUND CLAIMS WITH THE COMMISSIONER OF INTERNAL REVENUE ON
THE GROUND THAT THEY WERE ENTITLED TO USE THE MORE ADVANTAGEOUS CASH
METHOD OF ACCOUNTING IN COMPUTING GAIN FROM SALES OF BREEDING STOCK. 
RESPONDENTS CHALLENGED THE VALIDITY OF TREAS. REG. SEC 1.471-6(F) WHICH
REQUIRES THAT A TAXPAYER WHO ELECTS TO USE THE "UNIT-LIVESTOCK-PRICE"
METHOD MUST APPLY IT TO ALL LIVESTOCK RAISED, WHETHER FOR SALE OR
BREEDING PURPOSES.  THE COMMISSIONER REJECTED THEIR CLAIMS BUT WAS
OVERRULED BY THE DISTRICT COURT AND THE COURT OF APPEALS.  HELD:
TAXPAYERS EMPLOYING AN ACCRUAL METHOD OF ACCOUNTING FOR THEIR OVERALL
RANCHING OPERATION MAY NOT USE A CASH METHOD OF ACCOUNTING FOR THEIR
BREEDING LIVESTOCK.  PP. 109-117. 

(A)  LEGISLATIVE AND ADMINISTRATIVE HISTORY, WHICH ARE CONSONANT WITH
ACCOUNTING LOGIC, DEMONSTRATE THAT THE EXPENSES OF RAISING BREEDING
STOCK WERE INTENDED TO BE DEFERRED BY ACCRUAL-METHOD TAXPAYERS.  PP.
109-112. 

(B)  CONGRESS RESOLVED THE CONTROVERSY OVER THE TREATMENT OF GAINS ON
SALES OF BREEDING STOCK IN 1951 BY AMENDING SEC 117(J) OF THE INTERNAL
REVENUE CODE OF 1939 TO MAKE CLEAR THAT SUCH GAINS WERE ENTITLED TO
CAPITAL GAIN TREATMENT.  P. 112. 

(C)  THE "UNIT-LIVESTOCK-PRICE" METHOD IS SOUND ACCOUNTING PRACTICE
AND ITS UNIFORM APPLICATION TO RESPONDENTS' ENTIRE LIVESTOCK OPERATIONS
IS A REASONABLE EXERCISE OF THE COMMISSIONER'S DISCRETION.  PP. 113
114. 

(D)  THE APPLICATION OF THE CASH METHOD OF ACCOUNTING SOLELY TO SALES
OF BREEDING ANIMALS WHILE RETAINING THE ACCRUAL METHOD FOR ANIMALS
RAISED FOR SALE WOULD CREATE A HYBRID AND DISTORTED SYSTEM WHICH WOULD
DEFEAT THE COMMISSIONER'S GOAL OF PROVIDING A UNITARY ACCOUNTING METHOD
FOR ALL TAXPAYERS, AND IT WAS WITHIN HIS DISCRETION TO REJECT SUCH
HYBRID SYSTEM.  PP. 116-117. 

UNITED STATES V. CATTO ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER TAXPAYERS ENGAGED IN
THE LIVESTOCK BUSINESS WHO USE AN ACCRUAL METHOD OF ACCOUNTING FOR
ANIMALS RAISED FOR SALE MAY EMPLOY A CASH METHOD OF ACCOUNTING FOR
ANIMALS RAISED FOR BREEDING PURPOSES, IN ORDER TO TAKE ADVANTAGE OF A
FEDERAL INCOME TAX BENEFIT AVAILABLE TO CASH-METHOD TAXPAYERS WHEN
BREEDING ANIMALS ARE SOLD. 

THE RESPONDENTS ARE RANCHERS ENGAGED IN THE BUSINESS OF RAISING
LIVESTOCK FOR SALE.  AS AN IMPORTANT ELEMENT OF THEIR BUSINESS, THE
RESPONDENTS MAINTAIN HERDS OF LIVESTOCK USED FOR BREEDING PURPOSES. 
DURING THE TAXABLE YEARS IN QUESTION, THE RESPONDENTS SOLD ANIMALS FROM
THEIR BREEDING HERDS AND REPORTED THE GAINS FROM THE SALES IN ACCORD
WITH THE ACCRUAL METHOD OF ACCOUNTING THEY HAD ELECTED FOR THEIR
OVERALL RANCHING OPERATIONS.  SUBSEQUENTLY, THEY FILED CLAIMS WITH THE
COMMISSIONER OF INTERNAL REVENUE FOR PARTIAL TAX REFUNDS, ON THE GROUND
THAT THEY WERE ENTITLED TO USE THE MORE ADVANTAGEOUS CASH METHOD OF
ACCOUNTING IN CALCULATING THE GAIN FROM SALES OF THEIR BREEDING
LIVESTOCK.  THE COMMISSIONER REJECTED THE CLAIMS, AND THE RESPONDENTS
BROUGHT SUIT TO OBTAIN THE REFUNDS.  THEIR CLAIMS WERE SUSTAINED BY THE
DISTRICT COURT,  (FN1) AND THE JUDGMENTS WERE AFFIRMED BY THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT.  (FN2)  WE GRANTED CERTIORARI TO RESOLVE
A CONFLICT AMONG THE CIRCUITS.  (FN3)  WE NOW REVERSE THE JUDGMENTS OF
THE COURT OF APPEALS. 

(1964 ED.), PROVIDES THAT IN CERTAIN CIRCUMSTANCES GAINS FROM THE SALE
OF PROPERTY USED BY A TAXPAYER IN HIS TRADE OR BUSINESS MAY BE TREATED
FOR FEDERAL INCOME TAX PURPOSES AS LONG-TERM CAPITAL GAINS.  SECTION
1231(B)(3) MAKES THE SECTION SPECIFICALLY APPLICABLE TO SALES OF
LIVESTOCK HELD FOR BREEDING PURPOSES.  (FN4)  NO CHALLENGE IS RAISED
HERE TO THE CLASSIFICATION OF THE ANIMALS SOLD BY THE RESPONDENTS AS
LIVESTOCK HELD FOR BREEDING PURPOSES WITHIN THE MEANING OF THAT
PROVISION.  OUR SOLE CONCERN IS WITH THE MEASURE OF THE RESPONDENTS'
CAPITAL GAIN. 

EACH OF THE RESPONDENTS ELECTED THE "UNIT-LIVESTOCK-PRICE" VARIANT OF
THE ACCRUAL METHOD OF ACCOUNTING FOR HIS OVERALL RANCHING OPERATION. 
(FN5)  UNDER THAT METHOD, THE RESPONDENTS CLASSIFIED THEIR LIVESTOCK
INVENTORY BY AGE AND KIND AND ASSIGNED A STANDARD UNIT PRICE TO THE
ANIMALS IN EACH CLASS.  BOTH BREEDING ANIMALS AND ANIMALS RAISED FOR
SALE WERE LUMPED TOGETHER IN THE RESPONDENTS' INVENTORIES, AND THE SAME
UNIT PRICES WERE EMPLOYED FOR BOTH TYPES OF LIVESTOCK.  BY MULTIPLYING
THE NUMBER OF ANIMALS IN EACH CLASS BY THE UNIT PRICE FOR THE CLASS,
THE OPENING AND CLOSING INVENTORY VALUATIONS WERE READILY CALCULATED
FOR EACH TAXABLE YEAR. 

THE APPLICABLE TREASURY REGULATIONS GRANT A CURRENT DEDUCTION FOR THE
EXPENSES INCURRED IN RAISING LIVESTOCK, WITHOUT REGARD EITHER FOR THE
PURPOSE FOR WHICH THE ANIMALS ARE RAISED OR FOR THE METHOD OF
ACCOUNTING EMPLOYED BY THE TAXPAYER.  (FN6)  FOR RANCHERS WHO HAVE
ELECTED THE CASH METHOD OF ACCOUNTING, THE CURRENT DEDUCTION IS OF
COURSE TAKEN AGAINST ORDINARY INCOME IN THE YEAR THE EXPENSE IS PAID. 
SINCE, AS A RESULT, THE ADJUSTED BASIS OF THE BREEDING ANIMALS AT THE
TIME OF SALE IS ZERO, THE ENTIRE PROCEEDS OF THE SALES ARE REPORTED AS
CAPITAL GAINS. 

BECAUSE OF THE MECHANICS OF THE ACCRUAL METHOD OF ACCOUNTING USED BY
THE RESPONDENTS, HOWEVER, THEIR CURRENT DEDUCTIONS FOR THE EXPENSES OF
RAISING THEIR LIVESTOCK WERE OFFSET BY THE ANNUAL INCREMENTS IN THE
UNIT INVENTORY VALUES OF THE ANIMALS NOT SOLD DURING THE TAXABLE YEAR. 
(FN7)  THE ADJUSTED BASIS OF THE ANIMALS SOLD WAS THEREFORE EQUAL TO
THE ACCUMULATED INCREMENTS IN THEIR UNIT VALUES, AND ONLY THE PROCEEDS
OF SALE IN EXCESS OF THAT BASIS WERE REPORTED BY THE RESPONDENTS AS
CAPITAL GAIN.  (FN8)  ALTHOUGH THE RESPONDENTS' CAPITAL GAIN WAS LOWER
THAN THE GAIN THEY WOULD HAVE REPORTED HAD THEY USED THE CASH METHOD OF
ACCOUNTING, THE REDUCTION WAS ACHIEVED AT THE COST OF ANNULLING THE
CURRENT DEDUCTION FROM ORDINARY INCOME OF THE EXPENSES OF RAISING THEIR
BREEDING LIVESTOCK.  AS A RESULT, THE RESPONDENTS' OVERALL TAX ON THEIR
GAINS FROM THE SALE OF BREEDING LIVESTOCK WAS LARGER THAN IT WOULD HAVE
BEEN HAD THEY USED THE CASH METHOD OF ACCOUNTING WITH RESPECT TO THOSE
ANIMALS.  (FN9)  THE COURT OF APPEALS HELD IN THE PRESENT CASE THAT THE
RESPONDENTS WERE NOT REQUIRED TO USE THE ACCRUAL METHOD OF ACCOUNTING
FOR THEIR BREEDING LIVESTOCK, AND THAT THEY WERE THEREFORE ENTITLED TO
REPORT THE GAINS FROM THE SALES OF THOSE ANIMALS IN ACCORDANCE WITH THE
MORE ADVANTAGEOUS CASH METHOD.  (FN10)  WE THINK THE COURT OF APPEALS
WAS IN ERROR. 

THE RESPONDENTS' PRINCIPAL CONTENTION IS THAT BREEDING LIVESTOCK ARE
SIMPLY NOT THE TYPE OF ASSET THAT IS PROPERLY INCLUDIBLE IN INVENTORY. 
JUST AS MANUFACTURERS DO NOT PUT CAPITAL EQUIPMENT IN INVENTORY, SO,
RESPONDENTS CLAIM, THEY NEED NOT PLACE THEIR BREEDING LIVESTOCK IN
INVENTORY.  THEREFORE, THEY SAY, THE METHOD OF DEFERRAL OF EXPENSES
WORKED FOR INVENTORY-TYPE ASSETS BY THE MECHANICS OF ACCRUAL ACCOUNTING
UNDER TREAS. REG.  (HEREAFTER REG.) SEC 1.61-4(B) (FN11) IS COMPLETELY
INAPPLICABLE TO SUCH LIVESTOCK, BECAUSE THE ANIMALS SHOULD NEVER HAVE
BEEN PLACED IN INVENTORY IN THE FIRST PLACE.  THE RESULT OF FREEING
BREEDING LIVESTOCK FROM THE ACCOUNTING PROCEDURE OF REG. SEC 1.61-4(B)
WOULD BE TO ENABLE THE RESPONDENTS TO OBTAIN THE BENEFITS OF THE CASH
METHOD, SINCE THE CURRENT DEDUCTION UNDER REG. SEC 1.162-12 WOULD NO
LONGER BE OFFSET BY THE ANNUAL INCREMENTS IN THE UNIT VALUES OF THEIR
BREEDING LIVESTOCK. 

ALTHOUGH THE CONTENTION OF THE RESPONDENTS IS NOT WITHOUT FORCE, WE
BELIEVE THAT THE EVOLUTION OF THE STATUTE AND REGULATIOONS HERE IN
QUESTION DEMONSTRATES THAT THE EXPENSES OF RAISING BREEDING LIVESTOCK
WERE INTENDED TO BE DEFERRED BY ACCRUAL-METHOD TAXPAYERS.  THAT
INTERPRETATION OF THE LEGISLATIVE AND ADMINISTRATIVE HISTORY IS FULLY
CONSONANT WITH ACCOUNTING LOGIC, AND WE THEREFORE CONCLUDE THAT THE
COMMISSIONER SHOULD PREVAIL. 

THE GENERAL AND LONG-STANDING RULE FOR ALL TAXPAYERS, WHETHER THEY
USE THE CASH OR ACCRUAL METHOD OF ACCOUNTING, IS THAT COSTS INCURRED IN
THE ACQUISITION, PRODUCTION, OR DEVELOPMENT OF CAPITAL ASSETS,
INVENTORY, AND OTHER PROPERTY USED IN THE TRADE OR BUSINESS MAY NOT BE
CURRENTLY DEDUCTED, BUT MUST BE DEFERRED UNTIL THE YEAR OF SALE, WHEN
THE ACCUMULATED COSTS MAY BE SET OFF AGAINST THE PROCEEDS OF THE SALE. 
(FN12)  UNDER GENERAL PRINCIPLES OF ACCOUNTING, THEREFORE, IT WOULD BE
EXPECTED THAT EXPENSES INCURRED BY RANCHERS IN RAISING BREEDING
LIVESTOCK SHOULD BE CHARGED TO CAPITAL ACCOUNT, EVEN THOUGH THE
RANCHERS EMPLOYED THE CASH METHOD OF ACCOUNTING. 

AS EARLY AS 1919, HOWEVER, IN RESPONSE TO THE SPECIFIC NEED FOR A
RELATIVELY MORE SIMPLIFIED METHOD OF FARM ACCOUNTING THAN WAS AVAILABLE
EVEN UNDER THE CASH METHOD AS IT THEN EXISTED, THE SECRETARY OF THE
TREASURY AND THE COMMISSIONER OF INTERNAL REVENUE PROMULGATED
REGULATIONS EXPANDING THE CASH METHOD TO AUTHORIZE A CURRENT DEDUCTION
FOR EXPENSES INCURRED BY FARMERS AND RANCHERS IN RAISING CROPS AND
ANIMALS.  (FN13)  ALTHOUGH THE QUESTION DOES NOT APPEAR TO HAVE ARISEN,
IT IS HARDLY LIKELY THAT THE COMMISSIONER WOULD HAVE PERMITTED ACCRUAL
METHOD RANCHERS, FOR WHOM THE NEW PROCEDURE WAS NOT DESIGNED,
SELECTIVELY TO APPLY THE SIMPLIFIED CASH METHOD TO THEIR BREEDING
LIVESTOCK OR ANY OTHER PART OF THEIR HERDS.  AT THE TIME THESE
REGULATIONS WERE ISSUED, AND FOR MORE THAN TWO DECADES THEREAFTER,
GAINS FROM THE SALE OF BREEDING LIVESTOCK WERE TAXED AS ORDINARY
INCOME.  (FN14)  THUS, THE CHOICE OF ACCOUNTING METHOD AFFECTED ONLY
THE TIMING OF THE DEDUCTION FOR THE EXPENSES OF RAISING THE ANIMALS,
AND NO SERIOUS DISTORTION OF TAXABLE INCOME WAS INTRODUCED WHEN
RANCHERS ELECTED THE CASH METHOD FOR THEIR BREEDING LIVESTOCK.  (FN15)
THROUGHOUT THIS PERIOD, NO DISTINCTION APPEARS TO HAVE BEEN DRAWN
BETWEEN BREEDING AND OTHER LIVESTOCK IN THE INVENTORIES MAINTAINED BY
RANCHERS USING THE MORE SOPHISTICATED ACCRUAL METHOD OF ACCOUNTING. 
INDEED, SINCE 1922, THE TREASURY REGULATIONS HAVE SPECIFICALLY
CONTEMPLATED THAT ALL LIVESTOCK, WHETHER RAISED FOR BREEDING OR OTHER
PURPOSES, WERE TO BE INCLUDED IN THE INVENTORY OF ACCRUAL-METHOD
RANCHERS.  (FN16)

IN 1942, HOWEVER, CONGRESS ADDED SEC 117(J) TO THE INTERNAL REVENUE
CODE OF 1939.  (FN17)  THAT SECTION, THE PROGENITOR OF SEC 1231 OF THE
1954 CODE, ESTABLISHED CAPITAL GAIN TREATMENT FOR THE SALE OF "PROPERTY
USED IN THE TRADE OR BUSINESS" OF THE TAXPAYER.  THE GENERAL LANGUAGE
OF THE 1942 AMENDMENT LEFT THE TAX STATUS OF BREEDING LIVESTOCK IN
DOUBT, AND THE ENSUING NINE YEARS FOUND THE COMMISSIONER AND RANCHERS
JOCKEYING FOR POSITION ON THE TREATMENT OF GAINS FROM THE SALE OF SUCH
ANIMALS.  (FN18)  CONGRESS RESOLVED THE CONTROVERSY IN 1951 BY AMENDING
SEC 117(J) TO MAKE CLEAR THAT CAPITAL GAIN TREATMENT WAS TO BE ACCORDED
TO GAINS FROM THE SALE OF LIVESTOCK RAISED FOR BREEDING PURPOSES. 
(FN19)  PREDICTABLY, THE AMENDMENT ENCOURAGED ATTEMPTS BY ACCRUAL
METHOD RANCHERS TO TRANSFER TO THE CASH METHOD OF ACCOUNTING.  THE
COMMISSIONER, HOWEVER, REFUSED TO PERMIT THE CHANGES WHERE IT APPEARED
THAT THE SOLE MOTIVATION FOR THE SHIFT WAS TO REAP THE CAPITAL GAIN
WINDFALL AVAILABLE TO CASH-METHOD RANCHERS.  (FN20) 

THE ISSUE RAISED BY THE RESPONDENTS ULTIMATELY CENTERS ON THE
VALIDITY OF REG. SEC 1.471-6(F), WHICH REQUIRES THAT A "TAXPAYER WHO
ELECTS TO USE THE 'UNIT-LIVESTOCK-PRICE METHOD' MUST APPLY IT TO ALL
LIVESTOCK RAISED, WHETHER FOR SALE OR FOR  ... BREEDING  ...
PURPOSES."  THAT PROVISION IS NEITHER ARBITRARY NOR INCONSISTENT WITH
THE REVENUE STATUTE OR WITH OTHER REGULATIONS UNDER THE STATUTE.  THE
UNIT-LIVESTOCK-PRICE METHOD IS SOUNDLY GROUNDED IN ACCEPTED PRINCIPLES
OF ACCOUNTING.  IT HAS BEEN SPECIFICALLY RECOGNIZED BY THE TAX LAWS AS
A VALID APPROACH TO LIVESTOCK ACCOUNTING FOR MORE THAN 20 YEARS. 
(FN21)  MOREOVER, AS THE PRACTICE OF THE RESPONDENTS INDICATES, THE
EXPENSES INCURRED IN THE PRODUCTION AND DEVELOPMENT OF THEIR LIVESTOCK
WERE ESSENTIALLY THE SAME, WHETHER THE ANIMALS WERE RAISED FOR SALE OR
FOR BREEDING PURPOSES, AND THE UNIT-LIVESTOCK-PRICE METHOD OF
ACCOUNTING PROVIDED CONVENIENT AND EFFICIENT ANNUAL ESTIMATES OF THOSE
EXPENSES.  THERE CAN THUS BE NO QUESTION THAT THE RESPONDENTS'
ACCOUNTING METHOD ACCURATELY REFLECTED THEIR INCOME. 

WERE WE CONCERNED, THEREFORE, SOLELY WITH THE APPLICABILITY TO
BREEDING LIVESTOCK OF THE UNIT-LIVESTOCK-PRICE METHOD OF ACCOUNTING, WE
WOULD BE UNABLE TO CHARACTERIZE AS ARBITRARY THE COMMISSIONER'S REFUSAL
TO PERMIT THE CHANGE THE RESPONDENTS SEEK.  CONGRESS HAS GRANTED THE
COMMISSIONER BROAD DISCRETION IN SHEPHERDING THE ACCOUNTING METHODS
USED BY TAXPAYERS,  (FN22) AND THE UNIFORM APPLICATION OF THE UNIT
LIVESTOCK-PRICE METHOD TO THE RESPONDENTS' ENTIRE LIVESTOCK OPERATION
IS A REASONABLE EXERCISE OF THE DISCRETION RESTED BY CONGRESS IN THE
SECRETARY AND THE COMMISSIONER FOR THE ADMINISTRATION OF THE TAX LAWS. 
"IT IS NOT THE PROVINCE OF THE COURT TO WEIGH AND DETERMINE THE
RELATIVE MERITS OF SYSTEMS OF ACCOUNTING."  BROWN V. HELVERING, 291
U.S. 193, 204-205; LUCAS V. AMERICAN CODE CO., 280 U.S. 445, 449;
AUTOMOBILE CLUB OF MICHIGAN V. COMMISSIONER, 353 U.S. 180, 189-190;
COMMISSIONER V. HANSEN, 360 U.S. 446, 467; SCHLUDE V. COMMISSIONER, 372
U.S. 128, 133-135. 

THE ISSUE IN THE PRESENT CASE, HOWEVER, IS COMPLICATED BY THE
SUBSTANTIAL TAX DIFFERENTIAL WORKED BY THE TREASURY REGULATIONS IN
FAVOR OF CASH-METHOD RANCHERS AND AGAINST ACCRUAL-METHOD RANCHERS WHEN
BREEDING LIVESTOCK ARE SOLD.  IT IS THE POSITION OF THE COMMISSIONER
THAT THE TREASURY DEPARTMENT IS UNABLE BY ADMINISTRATIVE ACTION TO
REQUIRE CASH-METHOD RANCHERS TO CAPITALIZE THE EXPENSES INCURRED IN
RAISING THEIR BREEDING LIVESTOCK.  (FN23)  THE RESPONDENTS CONTEND THAT
SO LONG AS THE PRESENT DICHOTOMY IS MAINTAINED, THEY ARE ENTITLED TO
PARTICIPATE IN THE BENEFITS AVAILABLE UNDER THE CASH METHOD. 

WE NEED NOT DETERMINE WHETHER IN ALL CASES THE COMMISSIONER MAY
LEGITIMATELY REFUSE TO ACQUIESCE IN THE TRANSITION BY RANCHERS FROM THE
ACCRUAL METHOD TO THE CASH METHOD OF ACCOUNTING.  THE COMMISSIONER IS
NOT, OF COURSE, OBLIGED TO PERMIT TAXPAYERS TO SHIFT THEIR ACCOUNTING
METHODS TO ACCOMMODATE EVERY FLUCTUATION IN THE REVENUE LAWS. 
HELVERING V. WILSHIRE OIL CO., 308 U.S. 90, 97; COMMISSIONER V. SOUTH
TEXAS LUMBER CO., 333 U.S. 496.  WE MAY ASSUME ARGUENDO THAT PARTICULAR
LEGISLATIVE OR ADMINISTRATIVE MUTATIONS IN THE TAX LAWS MAY FOSTER
INEQUITIES SO GREAT BETWEEN TAXPAYERS SIMILARLY SITUATED THAT THE
COMMISSIONER COULD NOT LEGITIMATELY REJECT A PROPOSED CHANGE IN
ACCOUNTING METHOD UNLESS THE TAXPAYER HAD EXERCISED A MEANINGFUL CHOICE
AT THE TIME HE SELECTED HIS CONTEMPORARY METHOD.  NO SUCH SUBSTANTIAL
INEQUITY IS PRESENTED HERE.  THE RESPONDENTS HAVE NOT SOUGHT TO EMBRACE
THE CASH METHOD OF ACCOUNTING FOR THEIR ENTIRE RANCHING OPERATION.  TO
THE CONTRARY, THEY ASK THAT THEY BE PERMITTED TO SUBJECT ONLY THEIR
BREEDING LIVESTOCK TO THAT METHOD.  THUS, THEY PROPOSE TO RETAIN THE
ADVANTAGES OF THE ACCRUAL METHOD FOR THEIR LIVESTOCK RAISED FOR SALE. 
IT IS CLEAR THAT APPLICATION OF THE CASH METHOD OF ACCOUNTING TO SALES
OF BREEDING LIVESTOCK THE SACRIFICE IN ACCOUNTING ACCURACY UNDER THE
CASH METHOD REPRESENTS AN HISTORICAL CONCESSION BY THE SECRETARY AND
THE COMMISSIONER TO PROVIDE A UNITARY AND EXPEDIENT BOOKKEEPING SYSTEM
FOR FARMERS AND RANCHERS IN NEED OF A SIMPLIFIED ACCOUNTING PROCEDURE. 
A CONCOMITANT OF THE SPECIAL DISPENSATION THAT HAS BEEN MADE AVAILABLE
TO CASH-METHOD RANCHERS IS THE FAVORABLE CAPITAL GAIN TREATMENT THAT
RESULTS WHENEVER BREEDING LIVESTOCK ARE SOLD.  THE RESPONDENTS,
HOWEVER, HAVE DEMONSTRATED THEIR INTENT TO RETAIN THE ACCURACIES OF THE
UNIT-LIVESTOCK-PRICE METHOD OF ACCOUNTING FOR ANIMALS THEY HAVE RAISED
FOR SALE.  THAT METHOD WAS ITSELF INTRODUCED AS A SPECIAL CONCESSION TO
ACCRUAL-METHOD RANCHERS, WHO WERE THEREBY ENABLED TO AVOID THE
DIFFICULTIES OF ESTABLISHING THE ACTUAL COSTS OF RAISING THEIR
LIVESTOCK.  THE RESPONDENTS' DESIRE TO SHIFT FROM THE UNIT-LIVESTOCK
PRICE ACCRUAL METHOD TO THE CASH METHOD FOR THEIR BREEDING LIVESTOCK IS
THEREFORE DIVORCED FROM THE SOLE RATIONALE FOR WHICH EACH OF THOSE
ACCOUNTING METHODS WAS MADE AVAILABLE.  BY SELECTIVELY COMBINING
ATTRIBUTES OF BOTH METHODS, THE RESPONDENTS SEEK TO FASHION A HYBRID
SYSTEM THAT WOULD DEFEAT THE COMMISSIONER'S GOAL OF PROVIDING A UNITARY
ACCOUNTING METHOD FOR ALL TAXPAYERS.  IT CLEARLY LAY WITHIN THE
DISCRETION OF THE COMMISSIONER TO REJECT SUCH A HYBRID SYSTEM OF
ACCOUNTING, AND THE COURT OF APPEALS WAS IN ERROR IN ACCEPTING THE
RESPONDENTS' CLAIMS.  SEE NILES BEMENT POND CO. V. UNITED STATES, 281
U.S. 357, 360; COMMISSIONER V. SOUTH TEXAS LUMBER CO., 333 U.S. 496,
503-504; COMMISSIONER V. HANSEN, 360 U.S. 446, 467; LITTLE V.
COMMISSIONER, 294 F.2D 661, 664 (C.A. 9TH CIR.); CARTER V.
COMMISSIONER, 257 F.2D 595, 600 (C.A. 5TH CIR.); SORELLE V.
COMMISSIONER, 22 T.C. 459, 468-469. 

THE JUDGMENTS ARE THEREFORE REVERSED AND THE CASE IS REMANDED TO THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  WARDLAW V. UNITED STATES, 223 F. SUPP. 631 (D.C.W.D. TEX.);
CATTO V. UNITED STATES, 223 F. SUPP. 663 (D.C.W.D. TEX.). 

FN2  UNITED STATES V. WARDLAW, 344 F.2D 225; UNITED STATES V. CATTO,
334 F.2D 227. 

FN3  THE COURT OF APPEALS AFFIRMED THE JUDGMENTS OF THE DISTRICT COURT
ON THE AUTHORITY OF ITS PRIOR DECISION IN SCOFIELD V. LEWIS, 251 F.2D
128.  BUT SEE CARTER V. COMMISSIONER, 257 F.2D 595, 600-601 (C.A. 5TH
CIR.).  THE EIGHTH AND NINTH CIRCUITS HAVE TAKEN A CONTRARY POSITION
AND HAVE REFUSED TO PERMIT TAXPAYERS USING AN ACCRUAL METHOD OF
ACCOUNTING FOR THEIR OVERALL RANCHING OPERATION TO EMPLOY A CASH METHOD
OF ACCOUNTING FOR BREEDING LIVESTOCK.  UNITED STATES V. EKBERG, 291
F.2D 913 (C.A. 8TH CIR.); LITTLE V. COMMISSIONER, 294 F.2D 661 (C.A.
9TH CIR.). 

FN4  SECTION 1231 OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. SEC
1231, PROVIDES IN RELEVANT PART: 

"SEC 1231.  PROPERTY USED IN THE TRADE OR BUSINESS AND INVOLUNTARY
CONVERSIONS. 

"(A)  GENERAL RULE. 

"IF, DURING THE TAXABLE YEAR, THE RECOGNIZED GAINS ON SALES OR
EXCHANGES OF PROPERTY USED IN THE TRADE OR BUSINESS, PLUS THE
RECOGNIZED GAINS FROM THE COMPULSORY OR INVOLUNTARY CONVERSION (AS A
RESULT OF DESTRUCTION IN WHOLE OR IN PART, THEFT OR SEIZURE, OR AN
EXERCISE OF THE POWER OF REQUISITION OR CONDEMNATION OR THE THREAT OR
IMMINENCE THEREOF) OF PROPERTY USED IN THE TRADE OR BUSINESS AND
CAPITAL ASSETS HELD FOR MORE THAN 6 MONTHS INTO OTHER PROPERTY OR
MONEY, 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  ...  . 

"(B)  DEFINITION OF PROPERTY USED IN THE TRADE OR BUSINESS. 

"FOR PURPOSES OF THIS SECTION: 

     *         *         *         *    * 

"(3)  LIVESTOCK. 

"SUCH TERM ALSO INCLUDES LIVESTOCK, REGARDLESS OF AGE, HELD BY THE
TAXPAYER FOR DRAFT, BREEDING, OR DAIRY PURPOSES, AND HELD BY HIM FOR 12
MONTHS OR MORE FROM THE DATE OF ACQUISITION.  SUCH TERM DOES NOT
INCLUDE POULTRY." 

FN5  THE UNIT-LIVESTOCK-PRICE METHOD IS DESCRIBED IN TREAS. REG.
(HEREAFTER REG.) SEC 1.471-6, WHICH PROVIDES IN RELEVANT PART: 

"SEC 1.471-6.  INVENTORIES OF LIVESTOCK RAISERS AND OTHER FARMERS. 

     *         *         *         *   * 

"(C)  BECAUSE OF THE DIFFICULTY OF ASCERTAINING ACTUAL COST OF
LIVESTOCK AND OTHER FARM PRODUCTS ...  FARMERS RAISING LIVESTOCK MAY
VALUE THEIR INVENTORIES OF ANIMALS ACCORDING TO ...  THE 'UNIT
LIVESTOCK-PRICE METHOD.' 

     *         *         *         *         * 

"(E)  THE 'UNIT-LIVESTOCK-PRICE METHOD' PROVIDES FOR THE VALUATION OF
THE DIFFERENT CLASSES OF ANIMALS IN THE INVENTORY AT A STANDARD UNIT
PRICE FOR EACH ANIMAL WITHIN A CLASS.  A LIVESTOCK RAISER ELECTING THIS
METHOD OF VALUING HIS ANIMALS MUST ADOPT A REASONABLE CLASSIFICATION OF
THE ANIMALS IN HIS INVENTORY WITH RESPECT TO THE AGE AND KIND INCLUDED
SO THAT THE UNIT PRICES ASSIGNED TO THE SEVERAL CLASSES WILL REASONABLY
ACCOUNT FOR THE NORMAL COSTS INCURRED IN PRODUCING THE ANIMALS WITHIN
SUCH CLASSES.  THUS, IF A CATTLE RAISER DETERMINES THAT IT COSTS
APPROXIMATELY $15 TO PRODUCE A CALF, AND $7.50 EACH YEAR TO RAISE THE
CALF TO MATURITY, HIS CLASSIFICATIONS AND UNIT PRICES WOULD BE AS
FOLLOWS: CALVES, $15; YEARLINGS, $22.50; 2-YEAR OLDS, $30; MATURE
ANIMALS, $37.50  ... . 

"(F)  A TAXPAYER WHO ELECTS TO USE THE 'UNIT-LIVESTOCK-PRICE METHOD'
MUST APPLY IT TO ALL LIVESTOCK RAISED, WHETHER FOR SALE OR FOR DRAFT,
BREEDING, OR DAIRY PURPOSES.  ONCE ESTABLISHED, THE UNIT PRICES AND
CLASSIFICATIONS SELECTED BY THE TAXPAYER MUST BE CONSISTENTLY APPLIED
IN ALL SUBSEQUENT TAXABLE YEARS IN THE VALUATION OF LIVESTOCK
INVENTORIES.  NO CHANGES IN THE CLASSIFICATION OF ANIMALS OR UNIT
PRICES WILL BE MADE WITHOUT THE APPROVAL OF THE COMMISSIONER." 

THE VALUES SUGGESTED IN REG. SEC 1.471-6(E) HAVE REMAINED UNCHANGED
SINCE THEY WERE FIRST INTRODUCED INTO THE REGULATIONS IN 1944.  T.D.
5423, 1945 CUM. BULL.  70.  APPROPRIATE CLASSIFICATIONS AND UNIT PRICES
CURRENTLY RECOGNIZED BY THE INTERNAL REVENUE SERVICE ARE: CALVES, $40;
YEARLINGS, $55; 2-YEAR OLDS, $70; MATURE ANIMALS, $85.  SEE FARMER'S
TAX GUIDE, INTERNAL REVENUE SERVICE PUBLICATION NO. 225, P. 33 (1966
ED.). 

FN6  REG. SEC 1.162-12:  "  ...  THE PURCHASE OF FEED AND OTHER COSTS
CONNECTED WITH RAISING LIVESTOCK MAY BE TREATED AS EXPENSE DEDUCTIONS
INSOFAR AS SUCH COSTS REPRESENT ACTUAL OUTLAY....." 

FN7  UNDER REG. SEC 1.61-4(B), THE GROSS INCOME OF ACCRUAL-METHOD
RANCHERS IS MEASURED BY THE SUM OF SALES INCOME DURING THE TAXABLE YEAR
AND CLOSING INVENTORY, LESS THE SUM OF EXPENSES INCURRED IN RAISING THE
ANIMALS DURING THE YEAR AND OPENING INVENTORY.  SEE ALSO REG. SEC 1.162
12.  THE MECHANICS OF THAT COMPUTATION ACCOMPLISH THE BOOKKEEPING
OPERATION OF SUBTRACTING THE COST OF GOODS SOLD FROM SALES INCOME.  THE
EFFECT OF THE USE BY THE RESPONDENTS OF THEIR INVENTORY METHOD OF
ACCOUNTING IS SIMULTANEOUSLY TO ADD TO ORDINARY INCOME THE ANNUAL
INCREMENTS IN THE UNIT VALUES OF THEIR UNSOLD BREEDING LIVESTOCK AND TO
SUBTRACT THE ANNUAL COSTS OF RAISING THE ANIMALS. 

FN8  UNDER THE THEORY OF THE UNIT-LIVESTOCK-PRICE METHOD, THE
ACCUMULATED INCREMENTS IN THE UNIT VALUES OF THE LIVESTOCK SHOULD EQUAL
THE TOTAL EXPENSES INCURRED IN RAISING THE ANIMALS.  IN EFFECT,
THEREFORE, THE EXPENSES INCURRED BY THE RESPONDENTS IN RAISING THEIR
BREEDING LIVESTOCK WERE DEFERRED UNTIL THE YEAR OF SALE. 

FN9  IN OTHER WORDS, UNDER BOTH THE CASH AND ACCRUAL METHODS OF
ACCOUNTING, THE EXPENSES INCURRED IN RAISING BREEDING LIVESTOCK ARE
CURRENTLY DEDUCTIBLE, AND THE PROCEEDS OF SALE IN EXCESS OF THOSE
EXPENSES ARE TAXED AS CAPITAL GAINS.  THE ESSENCE OF THE DIFFERENCE
BETWEEN THE TWO ACCOUNTING METHODS IN THE CIRCUMSTANCES OF THIS CASE
LIES IN THE TAX TREATMENT OF THE PORTION OF THE SALES PROCEEDS THAT
REPRESENTS THE RECOVERY OF THE EXPENSES INCURRED IN RAISING THE
ANIMALS.  THAT PORTION OF THE PROCEEDS IS TAXED TO CASH-METHOD RANCHERS
AT RATES APPLICABLE TO CAPITAL GAINS, WHEREAS IT IS TAXED TO ACCRUAL
METHOD RANCHERS AT RATES APPLICABLE TO ORDINARY INCOME.  THUS, WITH
RESPECT TO SALES OF BREEDING LIVESTOCK, THE CASH METHOD OF ACCOUNTING
OFFERS RANCHERS A ROUTE BY WHICH ORDINARY INCOME CAN BE TRANSMUTED INTO
CAPITAL GAIN.  SEE MERTENS, LAW OF FEDERAL INCOME TAXATION SEC 22.130,
P. 569; JAMISON, TAX PLANNING WITH LIVESTOCK AND FARMING OPERATIONS,
1961 SO. CALIF. TAX INST.  583, 599-607. 

TO THE EXTENT, OF COURSE, THAT THE EXPENSES ACTUALLY INCURRED IN
RAISING THEIR BREEDING LIVESTOCK EXCEED THE ESTIMATED UNIT VALUATIONS,
ACCRUAL-METHOD RANCHERS ARE THEMSELVES ABLE TO TRANSMUTE ORDINARY
INCOME INTO CAPITAL GAIN.  IT IS THEREFORE TO THE ADVANTAGE OF ACCRUAL
METHOD RANCHERS TO PLACE LOW UNIT VALUATIONS ON THEIR BREEDING
LIVESTOCK. 

FN10  THE RESPONDENTS PROPOSED TO ACCOMPLISH THEIR SHIFT IN
ACCOUNTING PROCEDURE IN TWO STEPS: FIRST, BY DEDUCTING FROM ORDINARY
INCOME THE ADJUSTED BASIS OF THE BREEDING LIVESTOCK ACTUALLY SOLD
DURING THE TAXABLE YEARS AND TO TREAT THE ENTIRE PROCEEDS OF THE SALES
AS CAPITAL GAIN IN THE YEAR OF SALE; SECOND, BY ELIMINATING FROM THEIR
INVENTORIES ALL REMAINING LIVESTOCK HELD FOR BREEDING PURPOSES AND
ACHIEVING A ZERO BASIS FOR THOSE ANIMALS BY DEDUCTING FROM ORDINARY
INCOME THEIR EXISTING UNIT VALUATIONS, WHICH REPRESENT THE ACCUMULATED
COSTS OF RAISING THE ANIMALS.  EVEN THOUGH THE COURT OF APPEALS
SUSTAINED THE CLAIMS OF THE RESPONDENTS, THE COURT NOTED THAT THE
CORRECTION WOULD RESULT IN AN INORDINATE DEDUCTION AGAINST ORDINARY
INCOME IN THE YEAR THE ADJUSTMENT WAS MADE, SINCE EXPENSES PROPERLY
ALLOCABLE TO PRIOR YEARS WOULD BE BUNCHED IN THE YEAR OF THE
CORRECTION.  344 F.2D 227, 229.  IN THE DISTRICT COURT, SOME OF THE
RESPONDENTS HAD SUGGESTED THAT, IN THE ALTERNATIVE, THE INVENTORY
CORRECTION FOR BREEDING LIVESTOCK NOT YET SOLD MIGHT BE ACCOMPLISHED BY
ALLOWING REDUCTION OF THE ACCRUED UNIT VALUES TO A ZERO BASIS OVER A
FIVE-YEAR PERIOD. 

FN11  SEE NOTES 7 AND 8, SUPRA. 

FN12  INTERNAL REVENUE CODE OF 1954, SECS 263, 471, 1011-1013,
1016(A)(1); REG. SECS 1.263(A)-2(A), 1.471-1, 1.1016-2.  CF. I.T. 1309,
I-1 CUM. BULL.  196 (1922).  SEE DOYLE V. MITCHELL BROTHERS CO., 247
U.S. 179, 183-187; SPRING CITY CO. V. COMMISSIONER, 292 U.S. 182, 185;
SNYDER V. COMMISSIONER, 295 U.S. 134, 141, N. 4.  CF. MOEN, SPECIAL
CAPITAL GAINS TREATMENT FOR FARMERS, 17 OHIO ST. L.J. 32-41 (1956). 
THUS, A CASH-METHOD RANCHER WHO PURCHASES AN ANIMAL FOR BREEDING
PURPOSES MUST CAPITALIZE THE COST OF THE PURCHASE.  I.T. 3666, 1944
CUM. BULL.  270; REG. SEC 1.162-12. 

FN13  REG. 45, ART. 110 (APRIL 17, 1919 ED.)(REVENUE ACT OF 1918)
PRIVIDED IN PART: "  ...  THE COST OF FEEDING AND RAISING LIVE STOCK
MAY BE TREATED AS AN EXPENSE DEDUCTION  ...  ."  SEE REG. SEC 1.162-12,
NOTE 6, SUPRA.  CF. REG. 33 (REVISED), PARAS 30, 404-405 (REVENUE ACT
OF 1916, AS AMENDED BY REVENUE ACT OF 1917).  AT THE TIME THE
REGULATIONS UNDER THE REVENUE ACT OF 1918 WERE PROMULGATED, IT APPEARS
THAT THE BUREAU OF INTERNAL REVENUE DID NOT RECOGNIZE SPECIALIZED
TECHNIQUES OF ACCRUAL ACCOUNTING FOR APPROXIMATING AND DEFERRING THE
COSTS OF RAISING AN ANIMAL TO MATURITY.  SEE SPECIAL LETTER FROM THE
SECRETARY OF THE TREASURY TO THE CHAIRMAN OF THE SENATE FINANCE
COMMITTEE, JUNE 27, 1952, 98 CONG. REC. 8307, 1952 CCH FED. TAX REP.
PARA 6239.  AT LEAST BY 1922, HOWEVER, THE ACCRUAL METHOD OF ACCOUNTING
HAD BEEN EXPLICITLY ADAPTED TO THE COMPLEXITY OF FARM OPERATIONS.  REG.
62, ARTS. 38, 1586(2) (1922 ED.)(REVENUE ACT OF 1921).  SEE ALSO NOTE
21, INFRA. 

FN14  FAVORABLE TAX TREATMENT FOR CAPITAL GAINS WAS INTRODUCED INTO
THE INCOME TAX LAW IN THE REVENUE ACT OF 1921, BUT GAINS FROM THE SALE
OF BREEDING LIVESTOCK CONTINUED TO BE TREATED AS ORDINARY INCOME.  CF.
WELLS, LEGISLATIVE HISTORY OF TREATMENT OF CAPITAL GAINS UNDER THE
FEDERAL INCOME TAX, 1913-1948, 2 NAT. TAX J. 12 (1949). 

FN15  THE PRINCIPAL UTILITY OF THE SIMPLIFIED CASH METHOD WAS THAT IT
ENABLED FARMERS AND RANCHERS TO ESCAPE THE COMPLEXITY OF ESTABLISHING
AND DEFERRING THE PRECISE COSTS OF RAISING THEIR BREEDING ANIMALS. 
COMPARE REG. SEC 1.471-6(C), SUPRA, NOTE 5.  IN ADDITION, RANCHERS
USING THE CASH METHOD POSSESSED SUBSTANTIAL FLEXIBILITY IN DETERMINING
THE YEAR IN WHICH INCOME WAS REALIZED.  THE DEFECTS OF THE METHOD WERE
THAT IT PRODUCED A BUNCHING OF INCOME IN THE YEAR OF SALE AND AN
INACCURATE MATCHING OF INCOME FROM THE SALE OF THE LIVESTOCK WITH THE
EXPENSES INCURRED IN RAISING THE ANIMALS.  THE ACCRUAL METHOD, ON THE
OTHER HAND, INVOLVED NEITHER BUNCHING OF INCOME NOR INACCURATE MATCHING
OF INCOME WITH EXPENSES.  MOREOVER, UNDER THE UNIT-LIVESTOCK-PRICE
VARIANT OF THE ACCRUAL METHOD OF ACCOUNTING CHOSEN BY THE RESPONDENTS,
THE INCREMENTAL AMOUNTS TAKEN INTO INVENTORY EACH YEAR AS THE LIVESTOCK
INCREASED IN VALUE WERE AVAILABLE AS A SOURCE OF INCOME AGAINST WHICH
THE EXPENSES INCURRED IN RAISING THE ANIMALS COULD BE DEDUCTED. 

FN16  REG. 62, ART. 1586(1) (1922 ED.)(REVENUE ACT OF 1921). 

FN17  REVENUE ACT OF 1942, C. 619, 56 STAT. 846, SEC 151(B). 

FN18  SEE I.T. 3666, 1944 CUM. BULL.  270; I.T. 3712, 1945 CUM.
BULL.  176; SPECIAL RULING BY COMMISSIONER OF INTERNAL REVENUE, AUG. 4,
1947 (1948 CCH FED. TAX REP. PARA 6091) (CAPITAL GAIN TREATMENT
AVAILABLE TO CASH-METHOD RANCHERS ONLY FOR EXTRAORDINARY SALES OF
BREEDING LIVESTOCK, SUCH AS IN REDUCTION OF HERD SIZE, NOT FOR ANIMALS
CULLED FROM THE BREEDING HERD IN THE NORMAL COURSE OF BUSINESS BECAUSE
OF AGE OR DISEASE); ALBRIGHT V. UNITED STATES, 173 F.2D 339 (C.A. 8TH
CIR.)(CAPITAL GAIN TREATMENT AVAILABLE TO CASH-BASIS RANCHERS, EVEN FOR
ROUTINE SALES OF BREEDING LIVESTOCK); FAWN LAKE RANCH CO. V.
COMMISSIONER, 12 T.C. 1139, APPEAL DISMISSED, 180 F.2D 749 (C.A. 8TH
CIR.)(CAPITAL GAIN TREATMENT AVAILABLE TO ACCRUAL-METHOD RANCHERS FOR
SALES OF BREEDING LIVESTOCK, EVEN THOUGH THE ANIMALS HAD BEEN INCLUDED
IN INVENTORY); UNITED STATES V. BENNETT, 186 F.2D 407 (C.A. 5TH CIR.)
(BREEDING LIVESTOCK NOT HELD PRIMARILY FOR SALE); MIM.  6660, 1951-2
CUM. BULL.  60 (CAPITAL GAIN TREATMENT NOT AVAILABLE FOR BREEDING
LIVESTOCK UNLESS ANIMALS USED AS BREEDERS FOR SUBSTANTIALLY THEIR FULL
BREEDING LIVES).    FN19  REVENUE ACT OF 1951, C. 521, 65 STAT. 452,
501, SEC 324.  THE AMENDMENT, WHICH WAS CARRIED FORWARD WITHOUT CHANGE
AS SEC 1231(B)(3) OF THE 1954 CODE, EXTENDED FROM SIX TO 12 MONTHS THE
HOLDING PERIOD REQUIRED BEFORE SALE OF THE LIVESTOCK COULD QUALIFY AS A
CAPITAL GAIN.  A LINGERING EFFORT BY THE COMMISSIONER TO IMPOSE CERTAIN
ADDITIONAL CRITERIA CONCERNING AGE AND REPRODUCTIVE CAPACITY AND USE OF
BREEDING LIVESTOCK WAS REJECTED BY THE COURT OF APPEALS FOR THE SECOND
CIRCUIT.  MCDONALD V. COMMISSIONER, 214 F.2D 341. 

FN20  BECAUSE WE HOLD HERE THAT THE COMMISSIONER COULD VALIDLY REFUSE
TO ACQUIESCE IN THE RESPONDENTS' PROPOSED CHANGE IN THEIR ACCOUNTING
METHOD, WE HAVE NO OCCASION TO CONSIDER THE EFFECT EITHER OF THE
RESPONDENTS' FAILURE TO REQUEST HIS PERMISSION OR OF THEIR ATTEMPT TO
INITIATE THE CHANGE AFTER THEIR RETURNS FOR THE TAXABLE YEARS HAD BEEN
FILED.  SEE REG. SEC 1.471-6(A).  COMPARE BUREAU OF INTERNAL REVENUE
RELEASE, 1953 CCH FED. TAX REP. PARA. 6191 (MAY 12, 1953), ANNOUNCING
THAT THE BUREAU AT THAT TIME WOULD NO LONGER WITHHOLD ACTION ON
REQUESTS BY LIVESTOCK RAISERS TO CHANGE THEIR METHODS OF ACCOUNTING. 

FN21  THE UNIT-LIVESTOCK-PRICE METHOD WAS NOT FORMALLY RECOGNIZED IN
THE TREASURY REGULATIONS UNTIL 1944.  T.D. 5423, 1945 CUM. BULL.  70,
AMENDING REG. 111, SEC 29.22(C)-6 UNDER THE 1939 CODE.  IT APPEARS,
HOWEVER, THAT COMPARABLE METHODS OF ESTIMATING LIVESTOCK VALUES HAD
LONG BEEN INFORMALLY AVAILABLE TO RANCHERS.  SEE MIM.  5790, 1945 CUM.
BULL.  72. 

FN22  INTERNAL REVENUE CODE OF 1954, SECS 7805; 446(A)-(C), (E); 471;
REG. SECS 1.446-1(E)(2), 1.471-6(F).  REG. SEC 1.471-6(F) REQUIRES ONLY
THAT RANCHERS WHO USE THE UNIT-LIVESTOCK-PRICE METHOD FOR LIVESTOCK
RAISED FOR SALE MUST ALSO APPLY THE METHOD TO LIVESTOCK RAISED FOR
BREEDING PURPOSES.  BY THAT PROCEDURE, A UNITARY ACCOUNTING SYSTEM IS
ESTABLISHED FOR ALL LIVESTOCK RAISED BY THE RANCHERS.  THE COMMISSIONER
DOES NOT CONTEND THAT LIVESTOCK RAISED FOR BREEDING PURPOSES AND
LIVESTOCK RAISED FOR SALE MUST BE MAINTAINED IN THE SAME INVENTORY, AND
NO QUESTION IS RAISED HERE CONCERNING THE AVAILABILITY TO RANCHERS OF A
DEPRECIATION DEDUCTION ON THE UNIT VALUE OF LIVESTOCK THAT HAVE BEEN
RAISED TO MATURITY FOR BREEDING PURPOSES.  CF. REG. SECS 1.61-4(B),
1.167(A)-6(B).  COMPARE I.T. 3712, 1945 CUM. BULL.  176; MIM.  5790,
1945 CUM. BULL.  72.  ALSO, NO QUESTION IS RAISED HERE CONCERNING THE
STATUS OF LIVESTOCK THAT A RANCHER HAS PURCHASED, RATHER THAN RAISED,
FOR BREEDING PURPOSES.  SEE REG. SEC 1.471-6(G). 

FN23  THE SECRETARY HAS STATED THAT THE TREASURY DEPARTMENT IS
FORECLOSED BY THE LEGISLATIVE HISTORY OF THE 1951 AMENDMENT FROM
ELIMINATING BY REGULATION THE CAPITAL GAIN WINDFALL AVAILABLE TO CASH
METHOD RANCHERS.  SPECIAL LETTER FROM THE SECRETARY OF THE TREASURY TO
THE CHAIRMAN OF THE SENATE FINANCE COMMITTEE, SUPRA, NOTE 13.  BOTH OF
THE COMMITTEE REPORTS ON THE REVENUE ACT OF 1951 STATED THAT "GAINS
FROM SALES OF LIVESTOCK SHOULD BE COMPUTED IN ACCORDANCE WITH THE
METHOD OF LIVESTOCK ACCOUNTING USED BY THE TAXPAYER AND PRESENTLY
RECOGNIZED BY THE BUREAU OF INTERNAL REVENUE."  S. REP. NO. 781, 82D
CONG., 1ST SESS., P. 42, 1951-2 CUM. BULL.  458, 488; H.R. REP. NO.
586, 82D CONG., 1ST SESS., P. 32, 1951-2 CUM.  BULL.  357, 380.  WE
NEED NOT HERE DETERMINE THE CORRECTNESS OF THE SECRETARY'S
INTERPRETATION OF THE LEGISLATIVE HISTORY, SINCE NO QUESTION IS
PRESENTED IN THIS CASE CONCERNING THE VULNERABILITY OF THE POSITION OF
CASH-METHOD RANCHERS TO ACTION BY THE SECRETARY.  SIMILARLY, BECAUSE OF
THE GROUNDS ON WHICH WE REST OUR DECISION, WE DO NOT PASS UPON THE
COMMISSIONER'S CONTENTION THAT THE LEGISLATIVE HISTORY ESTABLISHED A
MANDATE BY CONGRESS IN FAVOR OF HIS POSITION IN THE PRESENT CASE. 

FN24  SEE NOTE 15, SUPRA.
..END :
















WALLIS V. PAN AMERICAN PET. CORP. 384 U.S. 63 


NO. 341.  ARGUED FEBRUARY 23-24, 1966.  - DECIDED APRIL 25, 1966.  - 344
F.2D 432, 439, VACATED AND REMANDED. 


PETITIONER IN 1954 FILED WITH THE SECRETARY OF THE INTERIOR UNDER THE
MINERAL LEASING ACT FOR ACQUIRED LANDS APPLICATIONS FOR A LEASE TO
EXPLOIT OIL AND GAS DEPOSITS IN SEVERAL FEDERAL TRACTS NEAR BURRWOOD,
LOUISIANA.  HE THEREAFTER AGREED TO GIVE RESPONDENT MCKENNA A ONE-THIRD
INTEREST IN THOSE APPLICATIONS AND ANY LEASE ISSUED THEREUNDER. 
PETITIONER LATER SOLD RESPONDENT CORPORATION AN OPTION TO ACQUIRE ANY
LEASE WHICH HE MIGHT OBTAIN UNDER THOSE APPLICATIONS.  FEARING THAT THE
TRACTS MIGHT PROVE TO BE PUBLIC DOMAIN LANDS, PETITIONER FILED NEW
APPLICATIONS IN 1956 FOR THE SAME TRACTS UNDER THE MINERAL LEASING ACT
OF 1920, UNDER WHICH, IN 1958, THE SECRETARY ISSUED A LEASE.  THE
RESPONDENTS THEREAFTER BROUGHT DIVERSITY ACTIONS IN THE FEDERAL
DISTRICT COURT ON THEIR RESPECTIVE AGREEMENTS WITH PETITIONER AND THE
ACTIONS WERE CONSOLIDATED.  THE COURT HELD FOR PETITIONER, RULING ON
THE BASIS OF LOUISIANA LAW, WHICH IT FOUND CONTROLLING, THAT A MINERAL
LEASE CONTRACT COULD BE EFFECTED ONLY BY WRITTEN AGREEMENT, AND THAT
THE WRITTEN AGREEMENTS COVERED ONLY LEASES OBTAINED UNDER THE MINERAL
LEASING ACT FOR ACQUIRED LANDS.  THE COURT OF APPEALS REVERSED AND
REMANDED ON THE GROUND THAT FEDERAL RATHER THAN STATE LAW GOVERNS THESE
CLAIMS TO LEASES ON PUBLIC DOMAIN LAND.  HELD:  STATE LAW, WHICH
GENERALLY CONTROLS THE DEALINGS OF PRIVATE PARTIES IN AN OIL AND GAS
LEASE VALIDLY ISSUED UNDER THE MINERAL LEASING ACT OF 1920, GOVERNS THE
CONTROVERSY IN THIS CASE.  PP. 67-72. 

(A)  NORMALLY A SIGNIFICANT CONFLICT BETWEEN A FEDERAL INTEREST AND
THE USE OF STATE LAW MUST EXIST TO WARRANT FASHIONING A RULE OF FEDERAL
COMMON LAW.  P. 68. 

(B)  THERE IS NO SIGNIFICANT THREAT TO ANY IDENTIFIABLE FEDERAL
POLICY OR INTEREST IN THIS CASE.  P. 68. 

(C)  NO EXPRESSION OF POLICY OR PROVISION OF THE MINERAL LEASING ACT
OF 1920 IS INCONSISTENT WITH STATE LAW RELIED ON IN THIS CASE.  PP. 69
71. 

(D)  SINCE THE REQUIREMENTS OF LOUISIANA LAW FOR MINERAL LEASE
TRANSACTIONS ARE NOT UNREASONABLE, THERE IS NO NEED TO RESORT TO
FEDERAL LAW.  PP. 69-70. 

(E)  THE ACT'S PROVISIONS CURTAILING ALIEN OWNERSHIP OF LEASES
THEREUNDER AND IMPOSING MAXIMUM ACREAGE LIMITATIONS ARE NOT
INCONSISTENT WITH APPLICATION OF STATE LAW.  P. 70. 

(F)  STATE LAW HAS NOT BEEN SHOWN TO BE INADEQUATE TO PROTECT
WHATEVER FEDERAL INTEREST EXISTS IN THE RESOLUTION OF DISPUTES OVER
LEASES TO FEDERAL LANDS.  P. 71. 

(G)  IRVINE V. MARSHALL, 20 HOW.  558, DISTINGUISHED.  PP. 71-72. 

WALLIS V. PAN AMERICAN PETROLEUM CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A QUESTION CONCERNING "FEDERAL COMMON LAW" BEST
EXPLAINED AFTER A SUMMARY OF THE FACTS AND THE LEGAL PROCEEDINGS
INVOLVED. 

AT STAKE IN THE LITIGATION ARE RIGHTS IN SEVERAL TRACTS, AGGREGATING
827 ACRES, OF OIL-RICH "MUD LUMPS" OR ISLANDS OWNED BY THE UNITED
STATES AND LOCATED IN A MOUTH OF THE MISSISSIPPI RIVER NEAR BURRWOOD,
LOUISIANA.  (FN1)  IN 1954 PETITIONER, FLOYD WALLIS, FILED WITH THE
SECRETARY OF THE INTERIOR APPLICATIONS FOR A LEASE TO EXPLOIT OIL AND
GAS DEPOSITS IN THE TRACTS.  BECAUSE THE TRACTS WERE DEEMED BY WALLIS
TO BE "ACQUIRED LANDS" OF THE UNITED STATES RATHER THAN "PUBLIC DOMAIN
LANDS," THESE APPLICATIONS WERE FILED UNDER THE MINERAL LEASING ACT FOR
ACQUIRED LANDS, WHICH GOVERNS THE FORMER, INSTEAD OF THE MINERAL
LEASING ACT OF 1920, WHICH CONTROLS THE LATTER.  (FN2) SUBSEQUENTLY,
WALLIS ENTERED INTO A WRITTEN JOINT VENTURE AGREEMENT WITH RESPONDENT
PATRICK MCKENNA GIVING MCKENNA ONE-THIRD INTEREST IN THE PENDING
APPLICATIONS AND ANY LEASE ISSUED UNDER THOSE APPLICATIONS.  THEN
WALLIS, WHO HAD EXCLUSIVE MANAGEMENT OF THE PROPERTY UNDER HIS
AGREEMENT WITH MCKENNA, SOLD RESPONDENT PAN AMERICAN PETROLEUM
CORPORATION AN OPTION TO ACQUIRE ANY LEASE WALLIS MIGHT OBTAIN UNDER
THE APPLICATIONS THEN ON FILE WITH THE SECRETARY. 

IN 1956, FEARING THAT THE TRACTS MIGHT PROVE TO BE PUBLIC DOMAIN
LAND, WALLIS FILED NEW APPLICATIONS FOR THE SAME TRACTS UNDER THE
MINERAL LEASING ACT OF 1920.  (FN3)  THEREAFTER THE TRACTS WERE RULED
TO BE PUBLIC DOMAIN LAND, THE CONFLICTING APPLICATIONS OF ONE OR MORE
COMPETITORS WERE REJECTED, AND IN 1958 THE SECRETARY ISSUED A LEASE OF
THE TRACTS TO WALLIS UNDER THE 1920 ACT.  SEE MORGAN V. UDALL, 306 F.2D
799.  AFTER THE LEASE WAS ISSUED TO WALLIS, MCKENNA BROUGHT A DIVERSITY
ACTION AGAINST HIM IN FEDERAL DISTRICT COURT IN LOUISIANA SEEKING TO BE
DECLARED A ONE-THIRD OWNER OF THE LEASE BY VIRTUE OF THE ORIGINAL JOINT
VENTURE AGREEMENT.  PAN AMERICAN ALSO BROUGHT A DIVERSITY ACTION IN THE
SAME COURT TO OBLIGE WALLIS TO PERFORM THE OPTION AGREEMENT BY
TRANSFERRING THE LEASE TO PAN AMERICAN. 

THE ACTIONS WERE CONSOLIDATED, AND FOLLOWING A NONJURY TRIAL THE
DISTRICT COURT HELD THAT NEITHER MCKENNA NOR PAN AMERICAN WAS ENTITLED
TO ANY INTEREST IN THE DISPUTED LEASE.  200 F.SUPP.  468.  THE TRIAL
JUDGE RULED THAT LOUISIANA LAW GOVERNED THE RIGHTS OF THE PARTIES AND
REQUIRED A WRITTEN AGREEMENT TO CREATE OR TRANSFER ANY INTEREST IN A
MINERAL LEASE, THUS EXCLUDING ORAL AGREEMENTS AS A BASIS FOR RELIEF IN
THIS CASE.  THE JUDGE THEN DECIDED THAT THE WRITTEN AGREEMENTS
AVAILABLE TO MCKENNA AND PAN AMERICAN CONTEMPLATED THEY WOULD SHARE
ONLY IN LEASES OBTAINED BY WALLIS UNDER THE MINERAL LEASING ACT FOR
ACQUIRED LANDS AND NOT IN ANY LEASES GRANTED HIM UNDER ANY OTHER LAW. 
THE COURT'S JUDGMENT IN FAVOR OF WALLIS ON THE QUESTION OF LEASE
OWNERSHIP RESERVED TO MCKENNA AND PAN AMERICAN WHATEVER RIGHTS THEY
MIGHT HAVE TO DAMAGES, RESTITUTION, OR LIKE REMEDIES BASED ON ORAL
AGREEMENTS OR OTHER CONDUCT. 

OVER A DISSENT, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED,
FILING AN INITIAL OPINION, 344 F.2D 432, AND AFTER PETITIONS FOR
REHEARING, A FURTHER OPINION ADHERING TO ITS EARLIER RESULT, 344 F.2D
439.  THE COURT DECIDED ONLY THAT THE TRIAL JUDGE HAD ERRED IN APPLYING
LOUISIANA LAW TO THE CONTROVERSY AND IT REMANDED FOR A NEW TRIAL IN
WHICH "APPLICABLE PRINCIPLES OF FEDERAL LAW" WOULD CONTROL THE ISSUES. 
344 F.2D, AT 437, 442.  IN ITS LATTER OPINION THE COURT OF APPEALS
REASONED THAT THE MINERAL LEASING ACT OF 1920 IMPOSED PERVASIVE FEDERAL
REGULATION AND THAT THE ACT'S POLICIES AND THE FEDERAL INTEREST WOULD
BE IMPAIRED IF LOUISIANA LAW WERE TO THWART THE TRANSFER OF THESE
FEDERALLY GRANTED LEASES.  THE OPINION ACKNOWLEDGED AN APPARENT
CONFLICT WITH THE TENTH CIRCUIT'S DECISION IN BLACKNER V. MCDERMOTT,
176 F.2D 498.  (FN4)  WE GRANTED CERTIORARI AND INVITED THE VIEWS OF
THE UNITED STATES, 382 U.S. 810, WHICH FILED A BRIEF AMICUS CURIAE.  WE
NOW REVERSE THE COURT OF APPEALS. 

THE QUESTION BEFORE US IS WHETHER IN GENERAL FEDERAL OR STATE LAW
SHOULD GOVERN THE DEALINGS OF PRIVATE PARTIES IN AN OIL AND GAS LEASE
VALIDLY ISSUED UNDER THE MINERAL LEASING ACT OF 1920.  (FN5)  SEVERAL
RELATED MATTERS IN THE CASE SHOULD BE DISTINGUISHED AND LAID ASIDE AT
THE OUTSET. 

FIRST, WE ARE NOT CONCERNED WITH WHETHER UNDER ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, THE FEDERAL DISTRICT COURT MIGHT HAVE DIVERGED
FROM STATE PRACTICE ON THE RELEVANT ISSUES OF STATUTE OF FRAUDS, PAROL
EVIDENCE, ESTOPPEL, TRUST REMEDIES, AND SO FORTH, ON THE GROUND THAT
THEY WERE NO MORE THAN "PROCEDURAL" RULES OR FELL UNDER SOME SIMILAR
RUBRIC.  SEE GENERALLY HANNA V. PLUMER, 380 U.S. 460.  RESPONDENTS DO
NOT ARGUE THAT THESE RULES ARE MERELY "HOUSEKEEPING" MATTERS ON WHICH
STATE AND FEDERAL COURTS MAY ORDINARILY DIFFER BUT RATHER THAT THE
FEDERAL INTEREST IN GOVERNMENT-GRANTED MINERAL LEASES REQUIRES
SUPPLANTING LOUISIANA LAW, IN WHICH EVENT THE FEDERAL RULE WOULD
NORMALLY GOVERN ANY SUCH CASE WHETHER IN STATE OR FEDERAL COURT.  SEE
DICE V. AKRON, C.&Y.R. CO., 342 U.S. 359.  SECOND, APART FROM A PRE
EMPTING FEDERAL INTEREST, WE DO NOT CONSIDER SUGGESTIONS THAT SOME LAW
OTHER THAN LOUISIANA'S SHOULD GOVERN BECAUSE THE LAND AT ISSUE MAY BE
OUTSIDE THE LEGAL BOUNDARIES OF THE STATE AND TRANSACTIONS BETWEEN THE
PARTIES MAY HAVE OCCURRED ELSEWHERE.  THE DISTRICT COURT SITTING IN
LOUISIANA OBVIOUSLY ASSUMED THAT THE STATE AS A CHOICE OF LAW MATTER
WOULD APPLY ITS OWN LAW TO THE QUESTIONS.  SEE KLAXON CO. V. STENTOR
ELECT.  MFG.  CO., 313 U.S. 487.  IF ANY CHALLENGE WAS OFFERED ON THIS
POINT BELOW, IT HAS NOT YET BEEN PASSED ON BY THE COURT OF APPEALS. 
THIRD, WHETHER ON THE MERITS THE TRIAL COURT CORRECTLY INTERPRETED AND
IMPLEMENTED LOUISIANA LAW IS NOT BEFORE US; PRESUMABLY THAT ISSUE WAS
PRESENTED TO THE COURT OF APPEALS BUT NOT RESOLVED BECAUSE OF ITS
DECISION THAT FEDERAL LAW SHOULD APPLY. 

WE FOCUS NOW ON THE CENTRAL QUESTION IN THE CASE.  IN DECIDING
WHETHER RULES OF FEDERAL COMMON LAW SHOULD BE FASHIONED, NORMALLY THE
GUIDING PRINCIPLE IS THAT A SIGNIFICANT CONFLICT BETWEEN SOME FEDERAL
POLICY OR INTEREST AND THE USE OF STATE LAW IN THE PREMISES MUST FIRST
BE SPECIFICALLY SHOWN.  IT IS BY NO MEANS ENOUGH THAT, AS WE MAY
ASSUME, CONGRESS COULD UNDER THE CONSTITUTION READILY ENACT A COMPLETE
CODE OF LAW GOVERNING TRANSACTIONS IN FEDERAL MINERAL LEASES AMONG
PRIVATE PARTIES.  WHETHER LATENT FEDERAL POWER SHOULD BE EXERCISED TO
DISPLACE STATE LAW IS PRIMARILY A DECISION FOR CONGRESS.  EVEN WHERE
THERE IS RELATED FEDERAL LEGISLATION IN AN AREA, AS IS TRUE IN THIS
INSTANCE, IT MUST BE REMEMBERED THAT "CONGRESS ACTS  ...  AGAINST THE
BACKGROUND OF THE TOTAL CORPUS JURIS OF THE STATES  ...  ."  HART &
WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 435 (1953). 
BECAUSE WE FIND NO SIGNIFICANT THREAT TO ANY IDENTIFIABLE FEDERAL
POLICY OR INTEREST, WE DO NOT PRESS ON TO CONSIDER OTHER QUESTIONS
RELEVANT TO INVOKING FEDERAL COMMON LAW, SUCH AS THE STRENGTH OF THE
STATE INTEREST IN HAVING ITS OWN RULES GOVERN, CF. UNITED STATES V.
YAZELL, 382 U.S. 341, 351-353, THE FEASIBILITY OF CREATING A JUDICIAL
SUBSTITUTE, CF. U.A.W. V. HOOSIER CARDINAL CORP., 383 U.S. 696, 701,
AND OTHER SIMILAR FACTORS. 

IF THERE IS A FEDERAL STATUTE DEALING WITH THE GENERAL SUBJECT, IT IS
A PRIME REPOSITORY OF FEDERAL POLICY AND A STARTING POINT FOR FEDERAL
COMMON LAW.  SEE DEITRICK V. GREANEY, 309 U.S. 190; REITMEISTER V.
REITMEISTER, 162 F.2D 691.  WE FIND NOTHING IN THE MINERAL LEASING ACT
OF 1920 EXPRESSING POLICIES INCONSISTENT WITH STATE LAW IN THE AREA
THAT CONCERNS US HERE.  IN PROVIDING FOR DEVELOPMENT OF PUBLIC DOMAIN
LANDS CONTAINING MINERALS, THE ACT COMPREHENSIVELY REGULATES VARIOUS
ASPECTS OF THE PROCESS.  FOR EXAMPLE, IT GOVERNS ISSUANCE OF LEASES
AMONG COMPETING APPLICANTS, E.G., SEC 17(B), (C), 30 U.S.C. SEC 226(B),
(C); IT CONTROLS IN SOME MEASURE THE ACTUAL USE OF THE LEASED TRACT, TO
PROMOTE GOALS SUCH AS CONSERVATION AND SAFETY, E.G., SEC 30, 30 U.S.C.
SEC 187; AND IT DEALS WITH RENT AND ROYALTY PAYMENTS TO BE MADE TO THE
GOVERNMENT, E.G., SEC 17(D), 30 U.S.C. SEC 226(D).  FEW PROVISIONS LEND
THEMSELVES AT ALL TO THE CREATION OF A FEDERAL LAW OF THE RIGHTS INTER
SE OF PRIVATE PARTIES DEALING IN THE LEASES. 

PERHAPS MOST PROMINENT AMONG THOSE THAT ARE RELEVANT IS SEC 30A, 30
U.S.C. SEC 187A, WHICH PROVIDES THAT OIL AND GAS LEASES SHALL BE
ASSIGNABLE.  (FN6)  THE COURT OF APPEALS' OPINION RELIED ON THIS
PROVISION, TOGETHER WITH REASONS WHY ASSIGNMENT OF LEASES MAY PROMOTE
FEDERAL POLICY, IN JUSTIFYING THE USE OF FEDERAL RATHER THAN STATE
LAW.  HOWEVER FITTING THIS APPROACH MAY BE WHERE A STATE INTERPOSES
UNREASONABLE CONDITIONS ON ASSIGNABILITY, IT CAN HAVE NO FORCE IN THIS
INSTANCE BECAUSE LOUISIANA CONCEDEDLY PROVIDES A QUITE FEASIBLE ROUTE
FOR TRANSFERRING ANY MINERAL LEASE OR CONTRACTING TO DO SO, NAMELY, BY
WRITTEN INSTRUMENT.  SEE 200 F. SUPP., AT 471 AND N. 13.  SECTION
27(D)(2), 30 U.S.C. SEC 184(D)(2) ALSO BEARS DIRECTLY ON THE RIGHTS OF
THE PARTIES BETWEEN THEMSELVES BY RENDERING UNENFORCIBLE ANY OPTION NOT
FILED WITH THE SECRETARY AND ANY OPTION RUNNING FOR MORE THAN THREE
YEARS WITHOUT PRIOR APPROVAL OF THE SECRETARY; HOWEVER, THIS SECTION
ENACTS A PAIR OF NARROW, SELF-SUFFICIENT STATUTORY DEFENSES, WHICH IS
NO REASON FOR CREATING AT LARGE A FEDERAL COMMON LAW OF FEDERAL MINERAL
LEASE CONTRACTS AMONG PRIVATE INTERESTS. 

NOR IS RESPONDENTS' POSITION AIDED BY THE PROVISIONS FIXING
QUALIFICATIONS FOR LESSEES TO THE EXTENT OF CURTAILING ALIEN OWNERSHIP
AND LIMITING ANY LESSEE OR OPTION HOLDER TO A MAXIMUM NUMBER OF ACRES. 
(FN7)  THE SECRETARY, WHO MUST APPROVE ALL ASSIGNMENTS BEFORE THE LEASE
OBLIGATIONS OR RECORD TITLES ARE SHIFTED FINALLY, IS ENTIRELY FREE TO
DISAPPROVE ASSIGNEES HOWEVER VALID THEIR ASSIGNMENTS MAY OTHERWISE BE.
(FN8)  FINALLY, IT IS SAID THAT BECAUSE THE LEASES ARE ISSUED BY THE
UNITED STATES AND CONCERN FEDERAL LANDS, THERE IS A FEDERAL INTEREST IN
HAVING PRIVATE DISPUTES OVER THEM JUSTLY RESOLVED.  APART FROM THE
HIGHLY ABSTRACT NATURE OF THIS INTEREST, THERE HAS BEEN NO SHOWING THAT
STATE LAW IS NOT ADEQUATE TO ACHIEVE IT. 

A CONCLUDING WORD MUST BE SAID ABOUT PRECEDENTS IN THIS COURT, WHICH
HAVE BEEN COPIOUSLY CITED IN THIS LITIGATION.  THE COURT OF APPEALS IN
ITS INITIAL OPINION AND AT LEAST ONE OF THE RESPONDENTS IN HIS BRIEF
HAVE SOUGHT SUPPORT IN THE GENERAL PRINCIPLE, REPEATED IN A NUMBER OF
OUR CASES, THAT THE TRANSFER OF PROPERTY BY THE UNITED STATES TO A
PRIVATE PARTY IS GOVERNED BY FEDERAL LAW AND ONLY SUBSEQUENT TRANSFERS
AMONG PRIVATE PARTIES ARE SUBJECT TO STATE LAW.  E.G., WILCOX V.
JACKSON, 13 PET. 498, 517; BUCHSER V. BUCHSER, 231 U.S. 157. 
NOTWITHSTANDING THE UNCHALLENGED GRANT OF THE LEASE TO WALLIS, IT IS
APPARENTLY ARGUED THAT THIS CONVEYED TITLE SUBJECT TO OUTSTANDING
EQUITIES IN FAVOR OF RESPONDENTS AND THAT FEDERAL LAW RETAINS ITS
INITIAL HOLD ON THE LEASE UNTIL EXISTING EQUITIES ARE RESOLVED.  THE
IMPORTANT CASE CITED BY RESPONDENTS AND THE COURT OF APPEALS FOR THIS
APPROACH, WHICH WOULD PRESUMABLY CONFINE FEDERAL LAW TO GOVERNING
EQUITABLE OBLIGATIONS OF THE LESSEE ARISING PRIOR TO HIS RECEIPT OF THE
LEASE, IS IRVINE V. MARSHALL, 20 HOW.  558.  IN THAT CASE AN AGENT WHO
HAD PURCHASED LAND IN HIS OWN NAME ON BEHALF OF TWO PRINCIPALS REFUSED
TO CONVEY ONE OF THE PRINCIPALS HIS INTEREST; ALTHOUGH LOCAL LAW AIMED
TO DISCOURAGE UNDISCLOSED PURCHASES BY PROXY BY REFUSING TO ENFORCE
SUCH EQUITABLE CLAIMS, THIS COURT HELD THAT FEDERAL LAW DISPLACED LOCAL
LAW AND ORDERED THAT A TRUST BE RECOGNIZED. 

WE TAKE THE DECISION IN IRVINE TO REST ON ITS MOST PRECISE
EXPLANATION:  THAT ENFORCEMENT OF THE EQUITABLE CLAIM WAS REQUIRED
BECAUSE THE LOCAL RULE DISCOURAGED PURCHASING THROUGH AGENTS AND SO
THREATENED TO HAMPER THE FEDERAL GOVERNMENT IN SELLING ITS LAND.  20
HOW., AT 562.  WHILE THIS APPRAISAL OF THE INTERESTS MAY BE DEBATABLE,
THE USE OF FEDERAL LAW BEYOND THE STAGE OF THE INITIAL GRANT WAS
EXPLAINED BY A SPECIFIC FEDERAL INTEREST FOUND TO CONFLICT WITH LOCAL
LAW.  THAT NO CONFLICT EXISTS IN THE PRESENT CASE HAS ALREADY BEEN
DEMONSTRATED.  OTHER  CASES CITED TO US OF FEDERAL EQUITY COURTS
RESOLVING PRIVATE DISPUTES OVER GOVERNMENT-GRANTED PROPERTY SEEM QUITE
DISTINGUISHABLE, FOR EXAMPLE, BECAUSE THERE WAS NO ASSERTED CONFLICT
WITH LOCAL LAW, MASSIE V. WATTS, 6 CRANCH 148, OR BECAUSE A GOVERNMENT
GRANT ITSELF WAS FLAWED IN SOME MANNER, SEE WIDDICOMBE V. CHILDERS, 124
U.S. 400. 

HAVING CONCLUDED THAT FEDERAL LAW SHOULD NOT GOVERN THE PRESENT
CONTROVERSY, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE TO THAT COURT SO THAT IT MAY CONSIDER ANY OTHER CONTENTIONS
RESPONDENTS MAY HAVE URGED, INCLUDING THEIR CLAIM THAT THEY SHOULD
PREVAIL UNDER LOUISIANA LAW.  VACATED AND REMANDED. 

FN1  LOUISIANA IS SAID TO HAVE CHALLENGED THE TITLE OF THE UNITED
STATES IN ANOTHER SUIT, SEE MCKENNA V. WALLIS, 200 F. SUPP. 468, 470,
N. 2, BUT IN THIS CASE THE PARTIES ACCEPT THE PREMISE OF FEDERAL
OWNERSHIP.    FN2  THE MINERAL LEASING ACT FOR ACQUIRED LANDS IS 61
STAT. 913, 30 U.S.C. SECS 351-359 (1964 ED.); THE MINERAL LEASING ACT
OF 1920 IS 41 STAT. 437, AS AMENDED, 30 U.S.C. SEC 181 ET SEQ. (1964
ED.).  WHILE THE PRECISE DISTINCTION IS OF NO CONCERN HERE, IN GENERAL
ACQUIRED LANDS ARE THOSE GRANTED OR SOLD TO THE UNITED STATES BY A
STATE OR CITIZEN AND PUBLIC DOMAIN LANDS WERE USUALLY NEVER IN STATE OR
PRIVATE OWNERSHIP. 

FN3  IT APPEARS THAT APPLICATIONS FILED UNDER THE WRONG ACT ARE
TREATED AS INEFFECTIVE, 200 F. SUPP., AT 471 AND N. 10; SEE 43 CFR SEC
3212.1(B)(1965), BUT THAT FILING SEPARATE APPLICATIONS UNDER EACH ACT
FOR THE SAME LAND IS ALLOWED. 

FN4  SEE ALSO OTHER ARGUABLY CONFLICTING DECISIONS IN THE FIFTH,
NINTH, AND TENTH CIRCUITS COLLECTED IN 40 TULANE L. REV. 195, 199, NN.
18-20. 

FN5 HOW POSSIBLE FEDERAL RULES WOULD DIFFER FROM THOSE USED BY
LOUISIANA HAS NOT BEEN SPECIFIED PRECISELY.  THE COURT OF APPEALS
INTIMATED THAT THE DEVICES OF RESULTING AND CONSTRUCTIVE TRUSTS, SAID
NOT TO BE RECOGNIZED IN LOUISIANA, MIGHT BE AVAILABLE UNDER FEDERAL LAW
AND USEFUL TO RESPONDENTS.  IT MAY BE THOUGHT THAT FEDERAL LAW WOULD
NOT EMBODY A STATUTE OF FRAUDS SO ORAL UNDERSTANDINGS COULD BE PROVED. 
IN THIS INSTANCE, WE BELIEVE THE QUESTION OF APPLICABILITY OF STATE
VERSUS FEDERAL LAW CAN BE DECIDED WITHOUT FURTHER REFINEMENT OF THE
ISSUE. 

FN6  OTHER PROVISIONS THAT HAVE SOMETHING TO DO WITH TRANSFER OF
LEASE RIGHTS ARE ONES PROVIDING FOR SURRENDER OF LEASES TO THE
SECRETARY, SEC 30, 30 U.S.C. SEC 187; FOR A TIME PERIOD IN WHICH
PERSONS MAY DISPOSE OF LEASES ILLEGALLY HELD BUT INVOLUNTARILY
ACQUIRED, SEC 27 (G), 30 U.S.C. SEC 184(G); AND FOR PROTECTING THE
RIGHTS OF BONA FIDE PURCHASERS IF THE SECRETARY SEEKS TO CANCEL A LEASE
FOR VIOLATIONS OF THE ACT, SEC 27(H), 30 U.S.C. SEC 184(H).  NOWHERE IS
IT SUGGESTED HOW USE OF LOUISIANA LAW ON THE QUESTIONS BEFORE US MIGHT
INTERFERE WITH POLICIES BEHIND THESE SECTIONS, WHOSE PROVISIONS
BASICALLY RELATE TO THE RIGHTS OF PRIVATE PERSONS VIS-A-VIS THE
SECRETARY. 

FN7  SECS 1, 27(D), 30 U.S.C. SECS 181, 184(D).  CONCEIVABLY, THE
RIGHTS OF PRIVATE PARTIES AMONG THEMSELVES MIGHT BE RELEVANT DATA IN
DECIDING WHETHER THESE SECTIONS WERE VIOLATED, E.G., WHETHER AN ALIEN
"CONTROLLED" A LEASE WITHIN THE MEANING OF THE STATUTE; SINCE THE
RELEVANCE WOULD ITSELF BE DECIDED BY FEDERAL LAW, THE FEDERAL INTEREST
IS SECURE. 

FN8  SECTION 30A, 30 U.S.C. SEC 187A, REQUIRES APPROVAL UNLESS THE
ASSIGNEE IS NOT QUALIFIED OR FAILS TO POST THE REQUIRED BOND.  WHERE
THERE IS A PRIVATE DISPUTE AS TO THE VALIDITY OR EFFECT OF AN
ASSIGNMENT, THE SECRETARY DOES NOT DECIDE THE QUESTION AND HE WILL NOT
APPROVE THE ASSIGNMENT OR TAKE OTHER ACTION UNTIL THE PARTIES SETTLE
THEIR DISPUTE IN COURT.  SEE MCCULLOCH OIL CORP. OF CALIFORNIA, INT.
DEPT. DECISION NO. A-30208 (NOV. 25, 1964). 

MR. JUSTICE BLACK, SUBSTANTIALLY AGREEING WITH THE MAJORITY OPINIONS
OF THE COURT OF APPEALS, WOULD AFFIRM ITS JUDGMENT. 
..END :











BURNS V. RICHARDSON 384 U.S. 73 


NO. 318.  ARGUED FEBRUARY 21, 1966.  - DECIDED APRIL 25, 1966.* - 238 F.
SUPP. 468, 240 F. SUPP. 724, VACATED AND REMANDED. 

*TOGETHER WITH NO. 323, CRAVALHO ET AL. V. RICHARDSON ET AL. AND NO.
409, ABE ET AL. V. RICHARDSON ET AL., ALSO ON APPEAL FROM THE SAME
COURT. 


THE HAWAII CONSTITUTION PROVIDES THAT THREE SMALL COUNTIES ELECT 15 OF
25 STATE SENATORS, WHILE THE FOURTH COUNTY (OAHU), WITH 79% OF THE
STATE'S POPULATION, ELECTS 10.  UNDER AN APPORTIONMENT AUTHORIZED BY
THE CONSTITUTION, OAHU HAS BEEN ALLOCATED 36 OF THE 51 SEATS IN THE
STATE HOUSE OF REPRESENTATIVES, THE REPRESENTATIVES BEING ELECTED FROM
MULTI-MEMBER DISTRICTS APPORTIONED ON THE BASIS OF THE NUMBER OF
REGISTERED VOTERS IN EACH.  SUIT WAS BROUGHT IN FEDERAL DISTRICT COURT
ATTACKING THE APPORTIONMENT PLAN.  THE DISTRICT COURT HELD THE SENATE
BUT NOT THE HOUSE APPORTIONMENT UNCONSTITUTIONAL AND DIRECTED THE
LEGISLATURE TO SUBMIT TO THE VOTERS THE QUESTION OF A CONVENTION TO
AMEND THE CONSTITUTION.  ON MOTION OF INTERVENING LEGISLATORS IT
MODIFIED ITS ORDER TO REQUIRE THE ENACTMENT OF THREE STATUTES: (1) AN
INTERIM SENATE APPORTIONMENT PLAN, USING REGISTERED VOTERS AS A BASIS,
TO BE SUBMITTED TO THE COURT, FOR USE IN THE 1966 ELECTION, (2) A
CONSTITUTIONAL AMENDMENT EMBODYING PERTINENT PROVISIONS OF THE INTERIM
PLAN FOR SUBMISSION TO THE VOTERS AT THAT ELECTION, AND (3) SUBMISSION
TO THE ELECTORATE OF THE QUESTION OF CALLING A CONSTITUTIONAL
CONVENTION.  THE SENATE APPORTIONMENT PLAN ADOPTED BY THE LEGISLATURE
ALLOCATED 19 OF THE 25 SENATORS TO OAHU ON THE BASIS OF REGISTERED
VOTERS.  THE SENATORS WERE TO BE ELECTED FROM FIVE MULTI-MEMBER
DISTRICTS.  THE DISTRICT COURT, WHILE EXPRESSLY APPROVING THE USE OF A
REGISTERED VOTERS BASIS, DISAPPROVED THE PLAN BECAUSE OF THE FAILURE TO
CREATE SINGLE-MEMBER DISTRICTS, AND REINSTATED ITS EARLIER ORDER
REQUIRING IMMEDIATE RESORT TO THE CONVENTION METHOD.  HELD: 

1.  IN PERMITTING LEGISLATIVE ACTION THE DISTRICT COURT SHOULD HAVE
ALLOWED LEGISLATIVE REVIEW OF THE ENTIRE APPORTIONMENT SCHEME WITHOUT
RESTRICTING THE AVAILABLE CHOICES FOR INTERIM AND PERMANENT PLANS.  PP.
83-86. 

2.  THE PROPOSED SENATE REAPPORTIONMENT PLAN TOGETHER WITH THE
EXISTING HOUSE APPORTIONMENT CONSTITUTES AN INTERIM ARRANGEMENT WHICH
HAS NOT BEEN SHOWN TO FALL SHORT OF FEDERAL STANDARDS.  PP. 85-97. 

(A)  THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE THAT AT LEAST ONE
HOUSE OF A BICAMERAL LEGISLATURE CONSIST OF SINGLE-MEMBER DISTRICTS. 
THE LEGISLATIVE CHOICE OF MULTI-MEMBER DISTRICTS IS SUBJECT TO
CONSTITUTIONAL CHALLENGE ONLY UPON A SHOWING THAT THE PLAN WAS DESIGNED
TO OR WOULD OPERATE TO MINIMIZE OR CANCEL OUT THE VOTING STRENGTH OF
RACIAL OR POLITICAL GROUPS, AND NO SUCH SHOWING WAS MADE.  PP. 88-89. 

(B)  ALTHOUGH BOTH HOUSES OF THE LEGISLATURE MUST BE APPORTIONED
SUBSTANTIALLY ON A POPULATION BASIS, THE EQUAL PROTECTION CLAUSE DOES
NOT REQUIRE THE USE OF TOTAL POPULATION FIGURES DERIVED FROM THE
FEDERAL CENSUS AS THE ONLY STANDARD TO MEASURE SUBSTANTIAL POPULATION
EQUIVALENCY.  PP. 90-92. 

(C)  HAWAII'S REGISTERED VOTERS BASIS, DEPENDING IN PART UPON
POLITICAL ACTIVITY AND CHANCE FACTORS, IS NOT ITSELF A PERMISSIBLE
POPULATION BASIS, BUT MAY BE USED SO LONG AS IT PRODUCES A DISTRIBUTION
OF LEGISLATORS NOT SUBSTANTIALLY DIFFERENT FROM THAT WHICH WOULD RESULT
FROM USE OF A PERMISSIBLE POPULATION BASIS.  PP. 92-93. 

(D)  HAWAII'S SPECIAL POPULATION PROBLEMS, INCLUDING LARGE
CONCENTRATIONS OF MILITARY AND OTHER TRANSIENTS, CENTERED ON OAHU,
SUGGEST THAT STATE CITIZEN POPULATION RATHER THAN TOTAL POPULATION IS
THE APPROPRIATE COMPARATIVE GUIDE.  PP. 94-95. 

(E)  THE REGISTERED VOTERS BASIS IS ACCEPTABLE FOR THE INTERIM PLAN
IN VIEW OF THE DISTRICT COURT'S CONCLUSION THAT THE APPORTIONMENT
ACHIEVED BY ITS USE SUBSTANTIALLY APPROXIMATED THAT WHICH WOULD HAVE
OCCURRED HAD STATE CITIZEN POPULATION BEEN THE GUIDE.  PP. 95-96. 

3.  THE DISTRICT COURT IS DIRECTED ON REMAND TO ENTER AN ORDER
ADOPTING THE PROPOSED SENATE REAPPORTIONMENT PLAN PLUS THE EXISTING
HOUSE APPORTIONMENT AS AN INTERIM LEGISLATIVE APPORTIONMENT FOR HAWAII,
AND RETAINING JURISDICTION FOR SUCH FURTHER PROCEEDINGS AS MAY BE
APPROPRIATE AFTER THE 1966 GENERAL ELECTIONS HAVE BEEN HELD.  P. 98. 

BURNS, GOVERNOR OF HAWAII V. RICHARDSON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
HAWAII. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS REAPPORTIONMENT CASE WAS BROUGHT IN THE DISTRICT COURT OF HAWAII
BY RESIDENTS AND QUALIFIED VOTERS OF THE CITY AND COUNTY OF HONOLULU,
APPELLEES IN EACH OF THE THREE APPEALS CONSOLIDATED HERE.   THEY
ALLEGED THAT HAWAII'S LEGISLATIVE APPORTIONMENT WAS UNCONSTITUTIONAL
UNDER OUR DECISIONS IN REYNOLDS V. SIMS, 377 U.S. 533, AND COMPANION
CASES.  (FN1)  WILLIAM S. RICHARDSON, LIEUTENANT GOVERNOR OF HAWAII,
ALSO AN APPELLEE IN ALL THREE APPEALS, WAS NAMED DEFENDANT IN HIS
CAPACITY AS THE STATE OFFICER RESPONSIBLE FOR SUPERVISING STATE
ELECTIONS.  JOHN A. BURNS, GOVERNOR OF HAWAII, APPELLANT IN NO. 318,
INTERVENED AS A PARTY PLAINTIFF.  MEMBERS OF THE STATE HOUSE OF
REPRESENTATIVES, APPELLANTS IN NO. 323, AND MEMBERS OF THE STATE
SENATE, APPELLANTS IN NO. 409, INTERVENED AS PARTIES DEFENDANT. 

UNDER THE HAWAII CONSTITUTION, ADOPTED IN 1950 AND PUT INTO EFFECT
UPON ADMISSION TO STATEHOOD IN 1959, THE STATE IS DIVIDED INTO FOUR
MAJOR COUNTIES, REFERRED TO IN THE STATE CONSTITUTION AS "BASIC
AREAS."  EACH COUNTY IS MADE UP OF A GROUP OF ISLANDS, SEPARATED FROM
EACH OF THE OTHER COUNTIES BY WIDE AND DEEP OCEAN WATERS.  THE
PRINCIPAL ISLAND OF THE CITY AND COUNTY OF HONOLULU, THE MOST POPULOUS
COUNTY, IS THE ISLAND OF OAHU.  IT IS THE STATE'S INDUSTRIAL CENTER,
PRINCIPAL TOURIST ATTRACTION, AND SITE OF MOST OF THE MANY FEDERAL
MILITARY ESTABLISHMENTS LOCATED IN THE STATE.  IN 1960, 79% OF THE
STATE'S POPULATION LIVED THERE.  THE THREE OTHER COUNTIES, PRIMARILY
RURAL AND AGRICULTURAL, ARE HAWAII COUNTY, MAUI COUNTY, AND KAUAI
COUNTY.  (FN2) 

THE APPORTIONMENT ARTICLE OF THE STATE CONSTITUTION WAS FRAMED TO
ASSURE THAT THE THREE SMALL COUNTIES WOULD CHOOSE A CONTROLLING
MAJORITY OF THE STATE SENATE AND THAT THE POPULATION CENTER, OAHU,
WOULD CONTROL THE STATE HOUSE OF REPRESENTATIVES.  THUS, ART. III, SEC
2, OF THE STATE CONSTITUTION APPORTIONS A 25-MEMBER SENATE AMONG SIX
FIXED SENATORIAL DISTRICTS, ASSIGNING A SPECIFIED NUMBER OF SEATS TO
EACH.  FIFTEEN SENATE SEATS, A CONTROLLING MAJORITY, ARE ALLOCATED
AMONG HAWAII, KAUAI AND MAUI COUNTIES AND 10 SEATS ARE ASSIGNED TO
OAHU.  ALTERATION OF THIS APPORTIONMENT IS MADE VERY DIFFICULT BY A
PROVISION "THAT NO CONSTITUTIONAL AMENDMENT ALTERING  ... THE
REPRESENTATION FROM ANY SENATORIAL DISTRICT IN THE SENATE SHALL BECOME
EFFECTIVE UNLESS IT SHALL ALSO BE APPROVED BY A MAJORITY OF THE VOTES
TALLIED UPON THE QUESTION IN EACH OF A MAJORITY OF THE COUNTIES." 
(FN3)  HAWAII CONST., ART. XV, SEC 2, PARA 6. 

FOR THE STATE HOUSE OF REPRESENTATIVES, ON THE OTHER HAND, THE STATE
CONSTITUTION ESTABLISHES 18 REPRESENTATIVE DISTRICTS, 10 OF WHICH ARE
ON OAHU, AND REQUIRES THE GOVERNOR TO APPORTION THE 51-MEMBER BODY
AMONG THESE DISTRICTS ON THE BASIS OF THE NUMBER OF VOTERS REGISTERED
IN EACH.  THE FIRST APPORTIONMENT OCCURRED IN 1959, JUST PRIOR TO
STATEHOOD, AND WAS BASED ON REGISTRATION FIGURES FOR THE 1958
TERRITORIAL ELECTION.  IT PRODUCED 13 MULTI-MEMBER REPRESENTATIVE
DISTRICTS AND FIVE SINGLE-MEMBER DISTRICTS, AND ALLOCATED 36
REPRESENTATIVES, A CONTROLLING MAJORITY, TO OAHU.  (FN4) THE GOVERNOR
IS REQUIRED TO REAPPORTION THE STATE DECENNIALLY, A DUTY WHICH MAY BE
ENFORCED BY MANDAMUS FROM THE STATE SUPREME COURT. 

THIS APPORTIONMENT SCHEME WAS FIRST ATTACKED IN THE SUPREME COURT OF
HAWAII, WITHIN A MONTH AFTER WE DECIDED REYNOLDS V. SIMS.  THAT COURT
REFUSED TO PASS ON THE VALIDITY OF THE APPORTIONMENT AT THAT TIME.  IT
NOTED THE IMMINENCE OF THE 1964 ELECTION AND STATED ITS BELIEF THAT,
CONSISTENT WITH THE HAWAII CONSTITUTION, JUDICIAL PROCEEDINGS SHOULD
AWAIT LEGISLATIVE PROPOSALS FOR A CONSTITUTIONAL AMENDMENT OR A
CONSTITUTIONAL CONVENTION.  GUNTERT V. RICHARDSON, 47 HAW.  662, 394
P.2D 444.  COMPARE REYNOLDS V. SIMS, 377 U.S., AT 585.  A SPECIAL
LEGISLATIVE SESSION WAS THEN CALLED BY THE GOVERNOR TO CONSIDER
REAPPORTIONMENT.  IT FAILED TO ACT. 

THIS SUIT WAS BROUGHT ON AUGUST 13, 1964.  A THREE-JUDGE COURT WAS
CONVENED, AS REQUIRED BY 28 U.S.C. SECS 2281, 2284 (1964 ED).  INTERIM
RELIEF WAS DENIED IN VIEW OF THE PENDENCY OF THE 1964 ELECTIONS AND
HEARINGS WERE SET FOR JANUARY 1965.  THE COURT PUBLISHED ITS FIRST
DECISION AND ORDER ON FEBRUARY 17, 1965.  238 F. SUPP. 468.  THAT ORDER
DECLARED ALL PROVISIONS OF THE APPORTIONMENT PLAN CONTAINED IN THE
HAWAII CONSTITUTION VALID UNDER THE EQUAL PROTECTION CLAUSE EXCEPT THE
MENTIONED PROVISIONS RELATING TO THE APPORTIONMENT OF THE STATE
SENATE.  THESE WERE AFFIRMATIVELY DECLARED TO BE INVALID AND
UNCONSTITUTIONAL. 

IN THE FEBRUARY 17 ORDER THE DISTRICT COURT DECIDED NOT TO FASHION
ITS OWN REAPPORTIONMENT PLAN FOR THE SENATE.  NOR DID IT INSTRUCT THE
LEGISLATURE TO REAPPORTION THE SENATE OR TO PROPOSE CONSTITUTIONAL
AMENDMENTS FOR THAT PURPOSE.  (FN5)  INSTEAD, IT DIRECTED THE
LEGISLATURE TO SUBMIT TO THE ELECTORATE AT AN IMMEDIATE SPECIAL
ELECTION THE QUESTION, "SHALL THERE BE A CONVENTION TO PROPOSE A
REVISION OF OR AMENDMENTS TO THE CONSTITUTION?"  THE LEGISLATURE WAS
ALSO DIRECTED TO ESTABLISH THE CONVENTION PROCEDURES ACCORDING TO A
TIMETABLE THE COURT SET.  (FN6)  THE COURT RETAINED JURISDICTION FOR
ALL PURPOSES, INCLUDING THAT OF ITSELF REAPPORTIONING THE SENATE IN THE
EVENT OF A NEGATIVE VOTE ON THE QUESTION, FAILURE OF THE CONVENTION TO
ADOPT A SUITABLE AMENDMENT, OR REJECTION BY THE ELECTORATE OF THE
AMENDMENT ADOPTED BY THE CONVENTION. 

THE COURT CHOSE THE CONVENTION ROUTE OVER THE LEGISLATIVE ROUTE FOR
TWO REASONS.  UNDER THE HAWAII CONSTITUTION ALL ELECTIONS NECESSARY TO
ADOPTION OF AMENDMENTS PROPOSED BY A CONSTITUTIONAL CONVENTION MAY BE
HELD ON A SPECIAL BASIS.  LEGISLATIVE PROPOSALS, ON THE OTHER HAND, MAY
BE SUBMITTED ONLY AT A GENERAL ELECTION.  IN STARTING THE MACHINERY
NECESSARY FOR A CONVENTION, THE COURT HOPED THAT A VALID PERMANENT PLAN
COULD BE PRESENTED TO THE ELECTORATE AND ADOPTED BEFORE THE NEXT
GENERAL ELECTION, TO BE HELD IN 1966.  THE SECOND REASON WAS THAT THE
COURT DOUBTED THAT THE LEGISLATURE WOULD BE ABLE TO AGREE ON AN
AMENDMENT PROPOSAL FOR REAPPORTIONING THE SENATE, IN VIEW OF THE
FAILURE OF THE PREVIOUSLY CALLED LEGISLATIVE SPECIAL SESSION TO ACT. 

THE SPECIAL ELECTIONS NECESSARY UNDER THE COURT'S ORDER, HOWEVER,
ENTAILED SUBSTANTIAL EXPENSE.  ON MOTION OF THE INTERVENING
LEGISLATORS, WHICH SHOWED SUBSTANTIAL PROGRESS TOWARDS A LEGISLATIVE
PROPOSAL FOR AMENDMENT, THE COURT ON MARCH 9, 1965, MODIFIED ITS
ORDER.  AS SUGGESTED BY THE PARTIES, IT SUSPENDED THE FEBRUARY 17 ORDER
AND INSTEAD REQUIRED THE LEGISLATURE TO ENACT THREE SEPARATE STATUTES
BEFORE TURNING TO REGULAR LEGISLATIVE BUSINESS.  ONE STATUTE WAS TO
PROPOSE AN INTERIM SENATE APPORTIONMENT PLAN, USING REGISTERED VOTERS
AS A BASIS, TO BE SUBMITTED TO THE COURT.   IF APPROVED, IT WOULD BE
ADOPTED BY THE COURT AS ITS PLAN FOR USE IN THE 1966 GENERAL ELECTION. 
THE SECOND STATUTE WAS TO PROPOSE A CONSTITUTIONAL AMENDMENT EMBODYING
PERTINENT PROVISIONS OF THE INTERIM PLAN, TO BE SUBMITTED TO THE PEOPLE
FOR APPROVAL AT THAT ELECTION.  THE THIRD STATUTE WAS TO SUBMIT THE
QUESTION OF CALLING A CONSTITUTIONAL CONVENTION TO THE ELECTORATE AT
THE 1966 GENERAL ELECTION. 

THREE STATUTES WERE ENACTED.  H.B. 987, THE ONLY ONE OF THESE
MEASURES BEFORE US,  (FN7) PROPOSED AN INTERIM PLAN OF APPORTIONMENT
FOR THE SENATE.  1 HAWAII SESS. LAWS 1965, ACT 281.  THE PLAN FOLLOWED
THE PATTERN FOR HOUSE APPORTIONMENT.  IT ESTABLISHED EIGHT SENATORIAL
DISTRICTS, FIVE ON OAHU.  AS REQUIRED BY THE COURT'S ORDER, THE 25
SENATORS WERE TO BE APPORTIONED ON THE BASIS OF REGISTERED VOTERS. 
(FN8)  USING FIGURES DERIVED FROM REGISTRATION FOR THE 1964 GENERAL
ELECTIONS, OAHU WAS ALLOCATED 19 OUT OF THE 25 SENATORS, A CONTROLLING
MAJORITY. 

UNDER THE TOTAL APPORTIONMENT SCHEME WHICH RESULTED FROM THIS
ENACTMENT, OAHU WOULD NOT HAVE ANY SINGLE-MEMBER DISTRICTS IN EITHER
THE HOUSE OR THE SENATE.  THE DISTRIBUTION OF REGISTERED VOTERS IN OAHU
IS SUCH THAT OAHU'S 10 REPRESENTATIVE DISTRICTS HAVE TWO TO SIX
REPRESENTATIVES EACH, AND ITS FIVE SENATORIAL DISTRICTS EACH WOULD HAVE
EITHER THREE OR FOUR SENATORS.  HAWAII COUNTY WOULD BE A SINGLE
SENATORIAL DISTRICT REPRESENTED BY THREE SENATORS AND HAVE FIVE
REPRESENTATIVE DISTRICTS, FOUR CHOOSING A SINGLE REPRESENTATIVE AND THE
FIFTH ELECTING THREE.  MAUI COUNTY WOULD BE A SINGLE SENATORIAL
DISTRICT ELECTING TWO SENATORS AND HAVE TWO REPRESENTATIVE DISTRICTS,
ONE ELECTING FOUR, AND THE OTHER A SINGLE REPRESENTATIVE.  KAUAI COUNTY
WOULD BE A SINGLE SENATORIAL AND A SINGLE REPRESENTATIVE DISTRICT
ELECTING ONE SENATOR AND THREE REPRESENTATIVES.  THUS, OAHU WITH 79% OF
TOTAL POPULATION WOULD ELECT 76% OF THE SENATE, 19 OF 25 SENATORS, AND
71% OF THE HOUSE, 36 OF 51 REPRESENTATIVES. 

THE NEW SENATE APPORTIONMENT SCHEME WAS SUBMITTED TO THE COURT
IMMEDIATELY UPON PASSAGE.  BY OPINION AND ORDER OF APRIL 28, 1965, THE
DISTRICT COURT DISAPPROVED IT, AND REINSTATED THE PROVISION OF ITS
EARLIER ORDER REQUIRING IMMEDIATE RESORT TO THE CONVENTION METHOD. 
(FN9)  240 F. SUPP. 724.  IT EXPRESSLY APPROVED THE USE OF THE
REGISTERED VOTERS MEASURE OF POPULATION.  ITS DISAPPROVAL WAS BASED ON
THE LEGISLATIVE DECISION NOT TO CREATE SINGLE-MEMBER SENATORIAL
DISTRICTS FOR OAHU BUT MERELY TO INCREASE THE NUMBER OF MULTI-MEMBER
SENATORIAL DISTRICTS ON THAT ISLAND FROM TWO TO FIVE.  IT WAS NOT
CONTENDED THAT THE APPORTIONMENT FAILED TO MEET THE STANDARD OF
REYNOLDS V. SIMS IF THE USE OF MULTI-MEMBER DISTRICTS AND THE USE OF
REGISTERED VOTERS AS THE APPORTIONMENT BASE DID NOT OFFEND THE EQUAL
PROTECTION CLAUSE.  (FN10) 

IN MAY 1965, THE GOVERNOR FILED A NOTICE OF APPEAL TO THIS COURT FROM
CERTAIN PROVISIONS OF THE TWO ORDERS AND THEREAFTER THE PARTICIPATING
SENATORS AND REPRESENTATIVES ALSO FILED NOTICES OF APPEAL FROM PARTS OF
THE ORDERS.  (FN11)  WE NOTED PROBABLE JURISDICTION AND CONSOLIDATED
THE APPEALS FOR ARGUMENT.  382 U.S. 807.  WE SET ASIDE AND VACATE BOTH
ORDERS AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. 

             I. 

ALL PARTIES CONCEDE THE INVALIDITY OF THE PROVISIONS OF ART. III, SEC
2, APPORTIONING THE SENATE ON THE BASIS OF GEOGRAPHY RATHER THAN
POPULATION, AND OF THE PROVISION OF ART. XV, SEC 2, PARA 6, REQUIRING A
MAJORITY VOTE OF THE ELECTORATE IN EACH OF A MAJORITY OF THE COUNTIES
TO AMEND SENATORIAL APPORTIONMENT ESTABLISHED BY THE CONSTITUTION.  THE
DISTRICT COURT CONCLUDED THAT, AS A MATTER OF STATE LAW, THE HOUSE AND
SENATE APPORTIONMENT PLANS WERE SEVERABLE.  COMPARE LUCAS V. COLORADO
GENERAL ASSEMBLY, 377 U.S. 713, 735.  EVEN SO, MARYLAND COMMITTEE V.
TAWES, 377 U.S. 656, HOLDS THAT A COURT IN REVIEWING AN APPORTIONMENT
PLAN MUST CONSIDER THE SCHEME AS A WHOLE.  IMPLICIT IN THIS PRINCIPLE
IS THE FURTHER PROPOSITION THAT THE BODY CREATING AN APPORTIONMENT PLAN
IN COMPLIANCE WITH A JUDICIAL ORDER SHOULD ORDINARILY BE LEFT FREE TO
DEVISE PROPOSALS FOR APPORTIONMENT ON AN OVERALL BASIS.  THE GOVERNOR
ARGUES THAT THE DISTRICT COURT COMMITTED "FUNDAMENTAL ERROR" IN
PREVENTING THE HAWAII LEGISLATURE FROM ENGAGING IN SUCH DELIBERATIONS,
AND THAT FOR THAT REASON ALONE THE LEGISLATIVE PRODUCT WAS INEVITABLY
TINGED WITH CONSTITUTIONAL ERROR. 

WE AGREE THAT, ONCE THE DISTRICT COURT DECIDED TO PERMIT LEGISLATIVE
ACTION, IT COULD AND SHOULD HAVE MADE CLEAR TO THE HAWAII LEGISLATURE
THAT IT COULD PROPOSE MODIFICATION OF THE HOUSE AS WELL AS THE SENATE
PLAN, BOTH AS TO THE INTERIM APPORTIONMENT TO BE ADOPTED UNDER COURT
ORDER AND AS TO PROPOSALS FOR PERMANENT REAPPORTIONMENT THROUGH
CONSTITUTIONAL AMENDMENT.  THAT APPROACH WOULD HAVE ENABLED THE
LEGISLATURE TO CHANNEL ITS EFFORTS TO PERMANENT RATHER THAN TEMPORARY
CHANGE.  INDEED, THE FAILURE TO INVITE SUCH THOROUGHGOING CONSIDERATION
WAS PARTICULARLY UNFORTUNATE IN CONNECTION WITH THE COURT'S REQUIREMENT
IN ITS ORDER OF MARCH 9 THAT THE HAWAII LEGISLATURE PREPARE
CONSTITUTIONAL AMENDMENTS FOR A PERMANENT APPORTIONMENT PLAN.  BY
DIRECTING THAT THE PERMANENT PLAN INCORPORATE THE INTERIM
REAPPORTIONMENT PLAN AND BY RESTRICTING THE CHOICES AVAILABLE TO THE
LEGISLATURE IN ADOPTING AN INTERIM PLAN, THE COURT PUT SIGNIFICANT
RESTRAINTS ON THE LEGISLATURE'S DELIBERATIONS ABOUT PERMANENT
APPORTIONMENT.  IT SEEMED NOT ONLY TO LIMIT THE LEGISLATURE TO
CONSIDERATION OF SENATE APPORTIONMENT BUT ALSO TO REQUIRE THAT A
REGISTERED VOTERS BASIS BE USED FOR THAT APPORTIONMENT.  THESE
CONSTRAINTS, TOGETHER WITH THE DISTRICT COURT'S ACTION IN EXPLICITLY
SUSTAINING THE CONSTITUTIONALITY OF THE HOUSE APPORTIONMENT IN ITS
ORDER OF FEBRUARY 17, MAY HAVE LIMITED THE OPPORTUNITIES OF THE
LEGISLATURE TO CONSTRUCT THE TOTAL SCHEME OF APPORTIONMENT BEST SUITED
TO THE STATE'S NEEDS.  (FN12)  OUR DECISION IN REYNOLDS V. SIMS
EMPHASIZED THAT "LEGISLATIVE REAPPORTIONMENT IS PRIMARILY A MATTER FOR
LEGISLATIVE CONSIDERATION AND DETERMINATION, AND THAT JUDICIAL RELIEF
BECOMES APPROPRIATE ONLY WHEN A LEGISLATURE FAILS TO REAPPORTION
ACCORDING TO FEDERAL CONSTITUTIONAL REQUISITES IN A TIMELY FASHION
AFTER HAVING HAD AN ADEQUATE OPPORTUNITY TO DO SO."  377 U.S., AT 586. 
UNTIL THIS POINT IS REACHED, A STATE'S FREEDOM OF CHOICE TO DEVISE
SUBSTITUTES FOR AN APPORTIONMENT PLAN FOUND UNCONSTITUTIONAL, EITHER AS
A WHOLE OR IN PART, SHOULD NOT BE RESTRICTED BEYOND THE CLEAR COMMANDS
OF THE EQUAL PROTECTION CLAUSE.    WE ARE DEALING HERE, HOWEVER, ONLY
WITH THE INTERIM PLAN.  THE STATE REMAINS FREE TO ADOPT OTHER PLANS FOR
APPORTIONMENT, AND THE PRESENT INTERIM PLAN WILL REMAIN IN EFFECT FOR
NO LONGER TIME THAN IS NECESSARY TO ADOPT A PERMANENT PLAN.  THE 1966
GENERAL ELECTIONS ARE IMMINENT, AND ELECTION MACHINERY MUST BE PUT INTO
OPERATION BEFORE FURTHER PROCEEDINGS COULD BE COMPLETED.  IN THIS
CONTEXT, THE QUESTION OF EMBARRASSMENT OF STATE LEGISLATIVE
DELIBERATIONS MAY BE PUT ASIDE.  FOR PRESENT PURPOSES, H.B. 987 MAY BE
TREATED TOGETHER WITH THE EXISTING HOUSE APPORTIONMENT AS A NEW,
OVERALL PROPOSAL FOR INTERIM APPORTIONMENT.  THE ONLY QUESTION FOR US
IS WHETHER, VIEWING THE RESULTING PLAN IN ITS ENTIRETY AND WITHOUT
REGARD TO ITS HISTORY, IT FALLS SHORT OF FEDERAL CONSTITUTIONAL
STANDARDS.  WE CONCLUDE FOR REASONS TO BE STATED THAT H.B. NO. 987 AND
THE EXISTING HOUSE APPORTIONMENT TOGETHER CONSTITUTE AN INTERIM
LEGISLATIVE APPORTIONMENT WHICH HAS NOT BEEN SHOWN TO FALL SHORT OF
FEDERAL STANDARDS.  WE DIRECT THE DISTRICT COURT TO ENTER AN ORDER
APPROPRIATE TO ADOPT THE PLAN AS THE COURT'S OWN FOR LEGISLATIVE
APPORTIONMENT APPLICABLE TO THE 1966 ELECTION, AND THEREAFTER UNTIL A
CONSTITUTIONAL PERMANENT PLAN IS ADOPTED, CONSTITUTIONAL DEFICIENCIES
IN THE INTERIM PLAN ARE SHOWN, OR ANOTHER INTERIM PLAN FOR
REAPPORTIONMENT OF THE HAWAII LEGISLATURE SUGGESTED BY THE LEGISLATURE
IS APPROVED BY THE COURT. 

         II. 

THE APRIL 28 OPINION BEGAN ANALYSIS IN TERMS OF THE INTERIM SENATE
APPORTIONMENT PLAN'S EFFECT UPON REPRESENTATION IN THE STATE'S SCHEME
OF REPRESENTATION AS A WHOLE.  THE DISTRICT COURT WAS NOT CONCERNED
WITH POPULATION DISPARITIES, HOWEVER, BUT WITH WHAT IT CONSIDERED TO BE
A DIFFERENCE IN REPRESENTATIONAL EFFECTIVENESS BETWEEN MULTI-MEMBER AND
SINGLE-MEMBER LEGISLATIVE DISTRICTS.  (FN13)  IN AN INFORMAL MEMORANDUM
CIRCULATED AMONG THE PARTIES IN EARLY APRIL, THE DISTRICT COURT HAD
ADVISED THE LEGISLATURE OF ITS DOUBTS CONCERNING THE VALIDITY OF A
MULTI-MEMBER SENATORIAL DISTRICTING PLAN, SAYING: 

"WE BELIEVE THAT THE SENATE SHOULD BE REDISTRICTED INTO SINGLE
SENATORIAL DISTRICTS, ALTHOUGH WE MAY APPROVE TWO-MEMBER DISTRICTS IF
AND ONLY IF THE LEGISLATURE CAN AFFIRMATIVELY SHOW SUBSTANTIAL REASONS
THEREFOR.  THERE MAY VERY WELL BE VALID REASONS FOR ONE OR TWO 2-MEMBER
DISTRICTS IN THE NEIGHBORING ISLANDS BUT WE PERCEIVE NO JUSTIFICATION
WHATSOEVER FOR OTHER THAN SINGLE MEMBER DISTRICTS ON THE ISLAND OF
OAHU, PARTICULARLY THE HEAVILY POPULATED AREAS THEREOF." 

THE OPINION OF APRIL 28 CLEARLY REVEALS THAT THE COURT WAS STILL
CONVINCED THAT ONLY SINGLE-MEMBER SENATORIAL DISTRICTING ON OAHU WOULD
BE APPROPRIATE.  IT FELT, FOR EXAMPLE, THAT THE LEGISLATURE HAD "BUILT
MONOLITHS" INTO THE DISTRICTING SCHEME BY MAKING THE BOUNDARIES OF THE
THIRD SENATORIAL DISTRICT AND THE EIGHTH REPRESENTATIVE DISTRICT ONE
AND THE SAME, THUS ENABLING THE SAME CONSTITUENCY TO ELECT FOUR
REPRESENTATIVES AND THREE SENATORS, AND BY FASHIONING THE SIXTH
SENATORIAL DISTRICT ALMOST ENTIRELY FROM THE FIFTEENTH REPRESENTATIVE
DISTRICT, FROM WHICH SIX REPRESENTATIVES AND FOUR SENATORS WOULD BE
ELECTED.  IT ALSO FELT THAT IN SETTING UP THE SENATORIAL DISTRICTS ON
OAHU THE LEGISLATURE HAD NOT TAKEN INTO ACCOUNT "COMMUNITY OF
INTERESTS, COMMUNITY OF PROBLEMS, SOCIO-ECONOMIC STATUS, POLITICAL AND
RACIAL FACTORS"; AND, FINALLY, THAT "THE LEGISLATURE'S ADAMANT
INSISTENCE ON THREE AND FOUR-MEMBER SENATORIAL DISTRICTING WAS THE
CONSCIOUS OR UNCONSCIOUS - THOUGH NOT UNNATURAL - RELUCTANCE OF THE
AFFECTED SENATORS TO CARVE OUT SINGLE-MEMBER DISTRICTS WHICH THEREAFTER
WOULD IN ALL PROBABILITY RESULT IN A POLITICAL DUEL-TO-THE-DEATH WITH A
FELLOW AND NEIGHBOR SENATOR."  240 F. SUPP., AT 730-731. 

BUT THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE THAT AT LEAST ONE
HOUSE OF A BICAMERAL STATE LEGISLATURE CONSIST OF SINGLE-MEMBER
LEGISLATIVE DISTRICTS.  SEE FORTSON V. DORSEY, 379 U.S. 433.  WHERE THE
REQUIREMENTS OF REYNOLDS V. SIMS ARE MET, APPORTIONMENT SCHEMES
INCLUDING MULTI-MEMBER DISTRICTS WILL CONSTITUTE AN INVIDIOUS
DISCRIMINATION ONLY IF IT CAN BE SHOWN THAT "DESIGNEDLY OR OTHERWISE, A
MULTI-MEMBER CONSTITUENCY APPORTIONMENT SCHEME, UNDER THE CIRCUMSTANCES
OF A PARTICULAR CASE, WOULD OPERATE TO MINIMIZE OR CANCEL OUT THE
VOTING STRENGTH OF RACIAL OR POLITICAL ELEMENTS OF THE VOTING
POPULATION."  ID., AT 439. 

IT MAY BE THAT THIS INVIDIOUS EFFECT CAN MORE EASILY BE SHOWN IF, IN
CONTRAST TO THE FACTS IN FORTSON, DISTRICTS ARE LARGE IN RELATION TO
THE TOTAL NUMBER OF LEGISLATORS, IF DISTRICTS ARE NOT APPROPRIATELY
SUBDISTRICTED TO ASSURE DISTRIBUTION OF LEGISLATORS THAT ARE RESIDENT
OVER THE ENTIRE DISTRICT, OR IF SUCH DISTRICTS CHARACTERIZE BOTH HOUSES
OF A BICAMERAL LEGISLATURE RATHER THAN ONE.  BUT THE DEMONSTRATION THAT
A PARTICULAR MULTI-MEMBER SCHEME EFFECTS AN INVIDIOUS RESULT MUST
APPEAR FROM EVIDENCE IN THE RECORD.  CF. MCGOWAN V. MARYLAND, 366 U.S.
420.  THAT DEMONSTRATION WAS NOT MADE HERE.  (FN14)  IN RELYING ON
CONJECTURE AS TO THE EFFECTS OF MULTI-MEMBER DISTRICTING RATHER THAN
DEMONSTRATED FACT, THE COURT ACTED IN A MANNER MORE APPROPRIATE TO THE
BODY RESPONSIBLE FOR DRAWING UP THE DISTRICTING PLAN.  SPECULATIONS DO
NOT SUPPLY EVIDENCE THAT THE MULTI-MEMBER DISTRICTING WAS DESIGNED TO
HAVE OR HAD THE INVIDIOUS EFFECT NECESSARY TO A JUDGMENT OF THE
UNCONSTITUTIONALITY OF THE DISTRICTING.  INDEED, WHILE IT WOULD HAVE
BEEN BETTER HAD THE COURT NOT INSISTED THAT THE LEGISLATURE "JUSTIFY"
ITS PROPOSAL, EXCEPT INSOFAR AS IT THUS RESERVED TO ITSELF THE ULTIMATE
DECISION OF CONSTITUTIONALITY VEL NON, THE LEGISLATURE DID ASSIGN
REASONS FOR ITS CHOICE.  (FN15)  ONCE THE DISTRICT COURT HAD DECIDED,
PROPERLY, NOT TO IMPOSE ITS OWN SENATE APPORTIONMENT BUT TO ALLOW THE
LEGISLATURE TO FRAME ONE, SUCH JUDGMENTS WERE EXCLUSIVELY FOR THE
LEGISLATURE TO MAKE.  THEY WERE SUBJECT TO CONSTITUTIONAL CHALLENGE
ONLY UPON A DEMONSTRATION THAT THE INTERIM APPORTIONMENT, ALTHOUGH MADE
ON A PROPER POPULATION BASIS, WAS DESIGNED TO OR WOULD OPERATE TO
MINIMIZE OR CANCEL OUT THE VOTING STRENGTH OF RACIAL OR POLITICAL
ELEMENTS OF THE VOTING POPULATION.  (FN16)

                                       III. 

THE DISPUTE OVER USE OF DISTRIBUTION ACCORDING TO REGISTERED VOTERS
AS A BASIS FOR HAWAIIAN APPORTIONMENT ARISES BECAUSE OF THE SIZABLE
DIFFERENCES IN RESULTS PRODUCED BY THAT DISTRIBUTION IN CONTRAST TO
THAT PRODUCED BY THE DISTRIBUTION ACCORDING TO THE STATE'S TOTAL
POPULATION, AS MEASURED BY THE FEDERAL CENSUS FIGURES.  IN 1960 OAHU'S
SHARE OF HAWAII'S TOTAL POPULATION WAS 79%.  ITS SHARE OF PERSONS
ACTUALLY REGISTERED WAS 73%.  ON THE BASIS OF TOTAL POPULATION, OAHU
WOULD BE ASSIGNED 40 MEMBERS OF THE 51-MEMBER HOUSE OF REPRESENTATIVES;
ON THE BASIS OF REGISTERED VOTERS IT WOULD BE ENTITLED TO 37
REPRESENTATIVES.  (FN17)  PROBABLY BECAUSE OF UNEVEN DISTRIBUTION OF
MILITARY RESIDENTS - LARGELY UNREGISTERED - THE DIFFERENCES AMONG
VARIOUS DISTRICTS ON OAHU ARE EVEN MORE STRIKING.  FOR EXAMPLE, ON A
TOTAL POPULATION BASIS, OAHU'S NINTH AND TENTH REPRESENTATIVE DISTRICTS
WOULD BE ENTITLED TO 11 REPRESENTATIVES, AND THE FIFTEENTH AND
SIXTEENTH REPRESENTATIVE DISTRICTS WOULD BE ENTITLED TO EIGHT.  ON A
REGISTERED VOTER BASIS, HOWEVER, THE NINTH AND TENTH DISTRICTS CLAIM
ONLY SIX REPRESENTATIVES AND THE FIFTEENTH AND SIXTEENTH DISTRICTS ARE
ENTITLED TO 10.  (FN 18) 

THE HOLDING IN REYNOLDS V. SIMS, AS WE CHARACTERIZED IT IN THE OTHER
CASES DECIDED ON THE SAME DAY, IS THAT "BOTH HOUSES OF A BICAMERAL
STATE LEGISLATURE MUST BE APPORTIONED SUBSTANTIALLY ON A POPULATION
BASIS."  (FN19)  WE START WITH THE PROPOSITION THAT THE EQUAL
PROTECTION CLAUSE DOES NOT REQUIRE THE STATES TO USE TOTAL POPULATION
FIGURES DERIVED FROM THE FEDERAL CENSUS AS THE STANDARD BY WHICH THIS
SUBSTANTIAL POPULATION EQUIVALENCY IS TO BE MEASURED.  ALTHOUGH TOTAL
POPULATION FIGURES WERE IN FACT THE BASIS OF COMPARISON IN THAT CASE
AND MOST OF THE OTHERS DECIDED THAT DAY, OUR DISCUSSION CAREFULLY LEFT
OPEN THE QUESTION WHAT POPULATION WAS BEING REFERRED TO.  AT SEVERAL
POINTS, WE DISCUSSED SUBSTANTIAL EQUIVALENCE IN TERMS OF VOTER
POPULATION OR CITIZEN POPULATION, MAKING NO DISTINCTION BETWEEN THE
ACCEPTABILITY OF SUCH A TEST AND A TEST BASED ON TOTAL POPULATION. 
(FN20)  INDEED, IN WMCA, INC., V. LOMENZO, 377 U.S. 633, DECIDED THE
SAME DAY, WE TREATED AN APPORTIONMENT BASED UPON UNITED STATES CITIZEN
POPULATION AS PRESENTING PROBLEMS NO DIFFERENT FROM APPORTIONMENTS
USING A TOTAL POPULATION MEASURE.  NEITHER IN REYNOLDS V. SIMS NOR IN
ANY OTHER DECISION HAS THIS COURT SUGGESTED THAT THE STATES ARE
REQUIRED TO INCLUDE ALIENS, TRANSIENTS, SHORT-TERM OR TEMPORARY
RESIDENTS, OR PERSONS DENIED THE VOTE FOR CONVICTION OF CRIME, IN THE
APPORTIONMENT BASE BY WHICH THEIR LEGISLATORS ARE DISTRIBUTED AND
AGAINST WHICH COMPLIANCE WITH THE EQUAL PROTECTION CLAUSE IS TO BE
MEASURED.  (FN21)  THE DECISION TO INCLUDE OR EXCLUDE ANY SUCH GROUP
INVOLVES CHOICES ABOUT THE NATURE OF REPRESENTATION WITH WHICH WE HAVE
BEEN SHOWN NO CONSTITUTIONALLY FOUNDED REASON TO INTERFERE.  UNLESS A
CHOICE IS ONE THE CONSTITUTION FORBIDS, CF., E.G., CARRINGTON V. RASH,
380 U.S. 89, THE RESULTING APPORTIONMENT BASE OFFENDS NO CONSTITUTIONAL
BAR, AND COMPLIANCE WITH THE RULE ESTABLISHED IN REYNOLDS V. SIMS IS TO
BE MEASURED THEREBY. 

USE OF A REGISTERED VOTER OR ACTUAL VOTER BASIS PRESENTS AN
ADDITIONAL PROBLEM.  SUCH A BASIS DEPENDS NOT ONLY UPON CRITERIA SUCH
AS GOVERN STATE CITIZENSHIP, BUT ALSO UPON THE EXTENT OF POLITICAL
ACTIVITY OF THOSE ELIGIBLE TO REGISTER AND VOTE.  EACH IS THUS
SUSCEPTIBLE TO IMPROPER INFLUENCES BY WHICH THOSE IN POLITICAL POWER
MIGHT BE ABLE TO PERPETUATE UNDERREPRESENTATION OF GROUPS
CONSTITUTIONALLY ENTITLED TO PARTICIPATE IN THE ELECTORAL PROCESS, OR
PERPETUATE A "GHOST OF PRIOR MALAPPORTIONMENT."  (FN22)  MOREOVER,
"FLUCTUATIONS IN THE NUMBER OF REGISTERED VOTERS IN A GIVEN ELECTION
MAY BE SUDDEN AND SUBSTANTIAL, CAUSED BY SUCH FORTUITOUS FACTORS AS A
PECULIARLY CONTROVERSIAL ELECTION ISSUE, A PARTICULARLY POPULAR
CANDIDATE, OR EVEN WEATHER CONDITIONS."  ELLIS V. MAYOR & CITY COUNCIL
OF BALTIMORE, 352 F.2D 123, 130 (C.A. 4TH CIR. 1965).  (FN23)  SUCH
EFFECTS MUST BE PARTICULARLY A MATTER OF CONCERN WHERE, AS IN THE CASE
OF HAWAII APPORTIONMENT, REGISTRATION FIGURES DERIVED FROM A SINGLE
ELECTION ARE MADE CONTROLLING FOR AS LONG AS 10 YEARS.  IN VIEW OF
THESE CONSIDERATIONS, WE HOLD THAT THE PRESENT APPORTIONMENT SATISFIES
THE EQUAL PROTECTION CLAUSE ONLY BECAUSE ON THIS RECORD IT WAS FOUND TO
HAVE PRODUCED A DISTRIBUTION OF LEGISLATORS NOT SUBSTANTIALLY DIFFERENT
FROM THAT WHICH WOULD HAVE RESULTED FROM THE USE OF A PERMISSIBLE
POPULATION BASIS. 

AS THE DISTRICT COURT NOTED, THE 1950 CONSTITUTIONAL CONVENTION
DISCUSSED THREE POSSIBLE MEASURES, TOTAL POPULATION, STATE CITIZEN
POPULATION, AND NUMBER OF REGISTERED VOTERS, IN CONSIDERING HOW THE
STATE HOUSE OF REPRESENTATIVES SHOULD BE APPORTIONED.  APPORTIONMENT
UNDER THE ORGANIC ACT HAD BEEN ON THE BASIS OF CITIZEN POPULATION; THIS
HAD PROVED DIFFICULT TO ADMINISTER BECAUSE STATISTICS WERE NOT READILY
AVAILABLE.  TOTAL POPULATION WAS DISFAVORED BECAUSE THE CENSUS TRACTS,
BY WHICH IT IS DETERMINED AND REPORTED, DID NOT NECESSARILY COMPORT
WITH TRADITIONAL LOCAL BOUNDARIES.  REGISTERED VOTERS WAS CHOSEN AS A
REASONABLE APPROXIMATION OF BOTH CITIZEN AND TOTAL POPULATION - READILY
DETERMINABLE, CONVENIENTLY BROKEN DOWN BY ELECTION DISTRICT, AND A
MEASURE WHICH, AS AGAINST TOTAL POPULATION, SOMEWHAT FAVORED THE OTHER
ISLANDS OVER OAHU.  IT IS FAIR TO SAY THAT THE CONVENTION REPORT
REFLECTED THAT CITIZEN POPULATION AS MUCH AS TOTAL POPULATION WAS THE
BASIS AGAINST WHICH A REGISTERED VOTERS STANDARD WAS COMPARED. 

HAWAII'S SPECIAL POPULATION PROBLEMS MIGHT WELL HAVE LED IT TO
CONCLUDE THAT STATE CITIZEN POPULATION RATHER THAN TOTAL POPULATION
SHOULD BE THE BASIS FOR COMPARISON.  THE DISTRICT COURT REFERRED TO THE
CONTINUING PRESENCE IN HAWAII OF LARGE NUMBERS OF THE MILITARY: "HAWAII
HAS BECOME THE UNITED STATES' MILITARY BASTION FOR THE ENTIRE PACIFIC
AND THE MILITARY POPULATION IN THE STATE FLUCTUATES VIOLENTLY AS THE
ASIATIC SPOTS OF TROUBLE ARISE AND DISAPPEAR.  IF TOTAL POPULATION WERE
TO BE THE ONLY ACCEPTABLE CRITERION UPON WHICH LEGISLATIVE
REPRESENTATION COULD BE BASED, IN HAWAII, GROSSLY ABSURD AND DISASTROUS
RESULTS WOULD FLOW  ...  ."  238 F. SUPP., AT 474.  (FN24)  SIMILARLY,
THE COURT REFERRED TO THE DISTORTION IN CENSUS FIGURES ATTRIBUTABLE TO
"THE LARGE NUMBER OF TOURISTS WHO CONTINUALLY FLOW IN AND OUT OF THE
STATE AND WHO  ...  FOR CENSUS PURPOSES ARE INITIALLY AT LEAST, COUNTED
AS PART OF HAWAII'S CENSUS POPULATION  ...  ."  ID., AT 475.  BOTH THE
TOURISTS AND THE MILITARY TEND TO BE HIGHLY CONCENTRATED ON OAHU AND,
INDEED, ARE LARGELY CONFINED TO PARTICULAR REGIONS OF THAT ISLAND. 
TOTAL POPULATION FIGURES MAY THUS CONSTITUTE A SUBSTANTIALLY DISTORTED
REFLECTION OF THE DISTRIBUTION OF STATE CITIZENRY.  IF SO, A FINDING
THAT REGISTERED VOTERS DISTRIBUTION DOES NOT APPROXIMATE TOTAL
POPULATION DISTRIBUTION IS INSUFFICIENT TO ESTABLISH CONSTITUTIONAL
DEFICIENCY.  IT IS ENOUGH IF IT APPEARS THAT THE DISTRIBUTION OF
REGISTERED VOTERS APPROXIMATES DISTRIBUTION OF STATE CITIZENS OR
ANOTHER PERMISSIBLE POPULATION BASE. 

BECAUSE STATE CITIZEN POPULATION FIGURES ARE HARD TO OBTAIN OR
EXTRAPOLATE, A COMPARISON OF THE RESULTS WHICH WOULD BE OBTAINED BY USE
OF SUCH FIGURES WITH THE RESULTS OBTAINED BY USING REGISTERED VOTER
FIGURES IS DIFFICULT.  BUT THE DISTRICT COURT FOUND THAT MILITARY
POPULATION OF OAHU, AND ITS DISTRIBUTION OVER THAT ISLAND, WAS
SUFFICIENT TO EXPLAIN THE ALREADY NOTED DIFFERENCES BETWEEN TOTAL
POPULATION AND REGISTERED VOTERS APPORTIONMENTS, BOTH AS AMONG HAWAII'S
FOUR COUNTIES AND AS AMONG OAHU'S REPRESENTATIVE DISTRICTS.  THE
DISTRICT COURT NOTED "THAT THERE IS NOTHING IN THE STATE CONSTITUTION
OR THE HAWAII STATUTES WHICH PER SE EXCLUDES MEMBERS OF THE ARMED
FORCES FROM ESTABLISHING THEIR RESIDENCE IN HAWAII AND THEREAFTER
BECOMING ELIGIBLE TO VOTE.  THIS COURT FINDS NO SCHEME IN HAWAII'S
CONSTITUTION OR IN THE STATUTES IMPLEMENTING THE EXERCISE OF FRANCHISE
WHICH IS AIMED AT DISENFRANCHISING THE MILITARY OR ANY OTHER GROUP OF
CITIZENS."  238 F. SUPP., AT 475.  NO ISSUE WAS RAISED IN THE
PROCEEDINGS BEFORE IT THAT MILITARY MEN HAD BEEN EXCLUDED IMPROPERLY
FROM THE APPORTIONMENT BASE.  (FN25)  MOREOVER, THE DISTRICT COURT
STRESSED THAT HAWAII'S CONSTITUTION AND LAWS ACTIVELY ENCOURAGE VOTER
REGISTRATION.  A HIGH PROPORTION OF THE POSSIBLE VOTING POPULATION IS
REGISTERED, (FN26) AND "STRONG DRIVES TO BRING OUT THE VOTE HAVE
RESULTED IN A VOTE OF FROM 88 TO 93.6% OF ALL REGISTERED VOTERS DURING
THE ELECTIONS OF 1958, 1959, 1960 AND 1962."  ID., AT 476.  IN THESE
CIRCUMSTANCES, WE FIND NO DEMONSTRATED ERROR IN THE DISTRICT COURT'S
CONCLUSION THAT THE APPORTIONMENT ACHIEVED BY USE OF A REGISTERED
VOTERS BASIS SUBSTANTIALLY APPROXIMATED THAT WHICH WOULD HAVE APPEARED
HAD STATE CITIZEN POPULATION BEEN THE GUIDE. 

WE ARE NOT TO BE UNDERSTOOD AS DECIDING THAT THE VALIDITY OF THE
REGISTERED VOTERS BASIS AS A MEASURE HAS BEEN ESTABLISHED FOR ALL TIME
OR CIRCUMSTANCES, IN HAWAII OR ELSEWHERE.  THE DISTRICT COURT WAS
CAREFUL TO DISCLAIM ANY HOLDING THAT IT WAS A "PERFECT BASIS."  WE
AGREE.  IT MAY WELL BE THAT REAPPORTIONMENT MORE FREQUENTLY THAN EVERY
10 YEARS, PERHAPS EVERY FOUR OR EIGHT YEARS, WOULD BETTER AVOID THE
HAZARDS OF ITS USE.  USE OF PRESIDENTIAL ELECTION YEAR FIGURES MIGHT
BOTH ASSURE A HIGH LEVEL OF PARTICIPATION AND REDUCE THE LIKELIHOOD
THAT VARYING DEGREES OF LOCAL INTEREST IN THE OUTCOME OF THE ELECTION
WOULD PRODUCE DIFFERENT PATTERNS OF POLITICAL ACTIVITY OVER THE STATE. 
OTHER MEASURES, SUCH AS A SYSTEM OF PERMANENT PERSONAL REGISTRATION,
MIGHT ALSO CONTRIBUTE TO THE STABILITY AND ACCURACY OF THE REGISTERED
VOTERS FIGURE AS AN APPORTIONMENT BASIS.  FUTURE LITIGATION MAY REVEAL
INFIRMITIES, TEMPORARY OR PERMANENT, NOT ESTABLISHED BY THE PRESENT
RECORD.  (FN27)  WE HOLD THAT, WITH A VIEW TO ITS INTERIM USE, HAWAII'S
REGISTERED VOTER BASIS DOES NOT ON THIS RECORD FALL SHORT OF
CONSTITUTIONAL STANDARDS. 

                                       IV. 

OUR CONCLUSION THAT THE INTERIM APPORTIONMENT SHOULD APPLY TO THE
1966 ELECTION REQUIRES THAT THE PROVISIONS OF THE ORDER OF FEBRUARY 17
MANDATING AN IMMEDIATE SPECIAL ELECTION ON THE QUESTION OF CALLING A
CONSTITUTIONAL CONVENTION SHOULD REMAIN INOPERATIVE.  THE IMMINENCE OF
THE 1966 ELECTIONS PRECLUDES ANY FURTHER ACTION PENDING THAT EVENT. 
BUT THE QUESTION REMAINS WHAT ROLE THE DISTRICT COURT HAS IN BRINGING
ABOUT A PERMANENT REAPPORTIONMENT AS PROMPTLY AS REASONABLY MAY BE
AFTER THAT ELECTION.  WE BELIEVE IT SHOULD RETAIN JURISDICTION OF THE
CASE TO TAKE SUCH FURTHER PROCEEDINGS AS MAY BE APPROPRIATE IN THE
EVENT A PERMANENT REAPPORTIONMENT IS NOT MADE EFFECTIVE.  WE NOTE THAT
THE ELECTORATE WILL VOTE AT THE 1966 ELECTION ON THE QUESTION WHETHER A
CONSTITUTIONAL CONVENTION SHOULD BE CONVENED.  WE SEE NO REASON,
HOWEVER, WHY THE NEWLY ELECTED LEGISLATURE SHOULD EITHER BE COMPELLED
TO PROPOSE AMENDMENTS OR BE PRECLUDED FROM PROPOSING THEM.  THE
LEGISLATURE WILL DOUBTLESS FIND REASON ENOUGH TO ACT IN THE FACT THAT
THE DISTRICT COURT WILL RETAIN JURISDICTION OVER THE CAUSE TO TAKE ANY
ACTION THAT MAY BE APPROPRIATE PENDING THE ADOPTION OF A PERMANENT
REAPPORTIONMENT WHICH COMPLIES WITH CONSTITUTIONAL STANDARDS.  SUCH
ACTION MAY INCLUDE FURTHER INQUIRY INTO THE CONSTITUTIONALITY OF THE
PRESENT PLAN IN ITS OPERATION, CONSIDERATION OF SUBSTITUTE INTERIM
PLANS FOR APPORTIONING THE HOUSE AND SENATE THAT MIGHT BE SUBMITTED BY
THE LEGISLATURE IN THE EVENT OF FAILURE OF PROPOSALS FOR CONSTITUTIONAL
AMENDMENT, OR JUDICIAL APPORTIONMENT IF THE PRESENT PLAN IS SHOWN TO BE
CONSTITUTIONALLY DEFICIENT AND NO ACCEPTABLE SUBSTITUTE IS
FORTHCOMING. 

THE DISTRICT COURT IS ACCORDINGLY DIRECTED ON REMAND TO ENTER AN
APPROPRIATE ORDER (1) ADOPTING H.B. NO. 987 AND THE EXISTING HOUSE
APPORTIONMENT AS AN INTERIM LEGISLATIVE APPORTIONMENT FOR HAWAII AND
(2) RETAINING JURISDICTION OF THE CAUSE FOR ALL PURPOSES. 

OUR JUDGMENT SHALL ISSUE FORTHWITH.  VACATED AND REMANDED. 

FN1  WMCA, INC. V. LOMENZO, 377 U.S. 633; MARYLAND COMMITTEE V.
TAWES, 377 U.S. 656; DAVIS V. MANN, 377 U.S. 678; ROMAN V. SINCOCK, 377
U.S. 695; AND LUCAS V. COLORADO GENERAL ASSEMBLY, 377 U.S. 713. 

FN2  KALAWAO, A HANSEN'S DISEASE TREATMENT AREA, IS CONSIDERED A
FIFTH COUNTY FOR SOME PURPOSES.  HOWEVER, ITS RESIDENTS ARE CONSIDERED
PART OF MAUI COUNTY FOR POLITICAL PURPOSES, AND VOTE IN THAT COUNTY FOR
STATE LEGISLATORS.  WE THEREFORE TREAT ONLY THE FOUR MAJOR COUNTIES, OR
BASIC AREAS, IN THIS OPINION.  THE STATE'S 1960 POPULATION OF 632,772
WAS DIVIDED AMONG THESE FOUR COUNTIES AS FOLLOWS: CITY AND COUNTY OF
HONOLULU, 500,409; HAWAII COUNTY, 61,332; MAUI COUNTY, 42,855; AND
KAUAI COUNTY, 28,176.  THE POPULATION OF THE SMALL, OUTLYING ISLANDS
OTHER THAN OAHU WHICH COMPRISE THE CITY AND COUNTY OF HONOLULU IS
NEGLIGIBLE.  WE THEREFORE REFER TO THAT COUNTY HEREAFTER AS OAHU. 

FN3  THE DISTRICT COURT FOUND THAT "THIS PROVISO WAS SPECIFICALLY
INSERTED IN ORDER TO FREEZE REPRESENTATION IN THE SENATE, AND IT GAVE
TO THE RURAL COUNTIES WHAT AMOUNTED TO THE RIGHT OF VETO OVER ANY
ATTEMPT TO CHANGE THE REPRESENTATIVE MAKEUP OF THE SENATE."  238 F.
SUPP.  468, 472. 

FN4  HAWAII USES THE METHOD OF EQUAL PROPORTIONS TO DISTRIBUTE
LEGISLATORS, FIRST AMONG THE FOUR COUNTIES AND THEN AMONG THE DISTRICTS
WITHIN EACH COUNTY.  THIS IS THE SAME METHOD AS USED IN APPORTIONING
THE MEMBERS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES
CONGRESS.  COMPLEX MATHEMATICALLY, IT DETERMINES A PRIORITY ORDER IN
WHICH LEGISLATORS ARE TO BE ASSIGNED AMONG VARIOUS COMPETING
DISTRICTS.  THE SYSTEM IS DISCUSSED IN SCHMECKEBIER, THE METHOD OF
EQUAL PROPORTIONS, 17 LAW & CONTEMP.  PROB.  302 (1952).  USE OF THIS
METHOD WILL NOT NECESSARILY RESULT IN A CONSTITUTIONAL APPORTIONMENT. 
IT IS THE DISTRIBUTION OF LEGISLATORS RATHER THAN THE METHOD OF
DISTRIBUTING LEGISLATORS THAT MUST SATISFY THE DEMANDS OF THE EQUAL
PROTECTION CLAUSE.  NO CLAIM IS MADE, HOWEVER, THAT THE EFFECT OF
APPLYING THE METHOD IN HAWAII IN THIS CASE WAS TO DENY ANY PERSON EQUAL
PROTECTION OF THE LAWS BY CREATING REPRESENTATIVE DISTRICTS
SUBSTANTIALLY UNEQUAL IN SIZE. 

FN5  THE COURT DOUBTED WHETHER THE LEGISLATURE ITSELF HAD AUTHORITY
UNDER STATE LAW TO ADOPT AN INTERIM APPORTIONMENT PLAN, IN VIEW OF THE
DECISION IN GUNTERT V. RICHARDSON, SUPRA.  THE HAWAII CONSTITUTION
AUTHORIZES THE LEGISLATURE TO PROPOSE CONSTITUTIONAL AMENDMENTS TO THE
ELECTORATE EITHER UPON PASSAGE BY A TWO-THIRDS VOTE OF BOTH HOUSES OF
THE LEGISLATURE OR UPON PASSAGE BY A MAJORITY VOTE OF BOTH HOUSES IN
EACH OF TWO SUCCESSIVE LEGISLATIVE SESSIONS.  THE HAWAII CONSTITUTION
ALSO AUTHORIZES THE LEGISLATURE TO SUBMIT TO THE PEOPLE THE QUESTION OF
CALLING A CONSTITUTIONAL CONVENTION, EITHER AT A GENERAL ELECTION OR AT
A SPECIAL ELECTION CALLED FOR THAT PURPOSE.  HAWAII CONST., ART. XV,
SEC 3. 

FN6  PARAGRAPH 4 OF THE COURT'S ORDER PROVIDED: 

"4.  THIS COURT WILL NOT INTERFERE WITH THE CONVENING OR CONDUCTING
OF THE BUSINESS OF THE THIRD STATE LEGISLATURE IN REGULAR SESSION IN
1965, SAVE AND EXCEPT THAT THE PARTIES HEREIN ARE HEREBY ENJOINED FROM
TAKING FINAL ACTION UPON ANY LEGISLATION, EXCEPT SUCH ACTIONS AS ARE
NECESSARY TO ORGANIZE THE RESPECTIVE HOUSES AT SUCH SESSION AND
APPROPRIATE FUNDS FOR THE SESSION, UNTIL LEGISLATION, PURSUANT TO THE
PROVISION OF ARTICLE XV OF SAID CONSTITUTION PROVIDING FOR THE
SUBMISSION TO THE PEOPLE OF HAWAII, BY SPECIAL ELECTION TO BE HELD NOT
LATER THAN AUGUST 1, 1965, THE QUESTION:  'SHALL THERE BE A CONVENTION
TO PROPOSE A REVISION OF OR AMENDMENTS TO THE CONSTITUTION?', AND FOR
ANY AND ALL ACTS REQUIRED BY LAW TO IMPLEMENT SUCH LEGISLATION, HAS
BEEN ENACTED INTO LAW.  SUCH LEGISLATION SHALL ALSO PROVIDE THAT IF THE
VOTE BE IN THE CONSTITUTIONAL AFFIRMATIVE, THEN A SPECIAL ELECTION
SHALL BE HELD NOT LATER THAN SEPTEMBER 15, 1965 TO ELECT DELEGATES TO
THE CONVENTION IN THE MANNER PROVIDED IN THE CONSTITUTION.  SUCH
LEGISLATION MAY INCLUDE LEGISLATIVE ACTION UNDER ARTICLE XV, SECTION 2,
4TH PARAGRAPH, OF THE CONSTITUTION.  SUCH LEGISLATION SHALL FURTHER
PROVIDE THAT THE CONVENTION CONVENE NOT LATER THAN OCTOBER 15, 1965 AND
THAT IT CONCLUDE ITS DELIBERATION IN TIME TO SUBMIT ITS PROPOSED
CONSTITUTIONAL AMENDMENTS TO THE ELECTORATE OF HAWAII AT A SPECIAL
ELECTION TO BE HELD NOT LATER THAN JANUARY 30, 1966, INCLUDING (BUT NOT
LIMITING THE CONVENTION THERETO) PROVISIONS THEREIN FOR REAPPORTIONING
THE SENATE OF HAWAII ON A CONSTITUTIONALLY VALID BASIS.  SUCH
LEGISLATION SHALL ALSO APPROPRIATE AND MAKE AVAILABLE FUNDS FOR THE
EXPENSES OF SUCH ELECTIONS AND CONVENTION."  238 F. SUPP., AT 479. 

FN7  H.B. 986, 1 HAWAII SESS. LAWS 1965, ACT 280, PROVIDES FOR
SUBMISSION TO THE ELECTORATE IN THE 1966 GENERAL ELECTION OF THE
QUESTION WHETHER A CONSTITUTIONAL CONVENTION SHOULD BE CALLED.  H.B.
773, 1 HAWAII SESS. LAWS 1965, P. 483, PROPOSING A CONSTITUTIONAL
AMENDMENT IN THE SAME FORM AS THE INTERIM PLAN, WAS PASSED BY ONLY A
MAJORITY VOTE IN THE SENATE AND HENCE MUST BE ACTED ON AGAIN BEFORE IT
CAN BE SUBMITTED TO THE PEOPLE FOR ADOPTION OR REJECTION.  SEE N. 5,
SUPRA.  IN VIEW OF THE CONSTRAINTS PLACED ON THE LEGISLATURE IN
ADOPTING THIS PROPOSAL, WE THINK THE DISTRICT COURT ON REMAND SHOULD
MAKE NO ATTEMPT TO REQUIRE ANY FURTHER ACTION ON THIS MEASURE.  SEE
PART I, INFRA. 

FN8  THE METHOD OF EQUAL PROPORTIONS WAS TO BE USED FOR APPORTIONING
THE SENATE AS WELL AS THE HOUSE.  SEE N. 4, SUPRA. 

FN9  ON MAY 21, 1965, MR. JUSTICE DOUGLAS STAYED THIS ACTION PENDING
OUR DETERMINATION OF THESE APPEALS. 

FN10  WE ARE NOT TO BE UNDERSTOOD AS AGREEING WITH THE DISTRICT
COURT, INSOFAR AS IT MAY HAVE RESTED ITS DECISION ON THE VIEW THAT USE
OF THE METHOD OF EQUAL PROPORTIONS ITSELF SAVED THE PLAN FROM
CONSTITUTIONAL CHALLENGE BASED ON REYNOLDS V. SIMS.  240 F. SUPP., AT
727.  SEE N. 4, SUPRA. 

FN11  THESE NOTICES WERE TIMELY FILED.  THE FEBRUARY 17 OPINION WAS
NOT FORMALLY ENTERED UNTIL APRIL 9, 1965.  THE SECOND DECISION WAS
DATED AND ENTERED APRIL 28, 1965.  NOTICES OF APPEAL WERE FILED MAY 3
AND 7, 1965.  WHETHER JUDGED BY THE DATE OF ENTRY, UNITED STATES V.
HARK, 320 U.S. 531; FED. RULE CIV. PROC. 58, OR BY THE FACT THAT THE
ORDER INCORPORATED IN THE DECISION OF FEBRUARY 17 WAS NOT FINALLY MADE
EFFECTIVE UNTIL THE DECISION OF APRIL 28, UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173, 177, THE APPEALS FROM THE DECISION
ANNOUNCED FEBRUARY 17 WERE TIMELY.  28 U.S.C. SEC 2101(B) (1964 ED.). 

FN12  WE HAVE NOT OVERLOOKED THE FACT THAT THE LIMITATIONS WERE
SUGGESTED BY THE LEGISLATORS THEMSELVES.  NEVERTHELESS, CONSISTENTLY
WITH MARYLAND COMMITTEE V. TAWES, THE DISTRICT COURT SHOULD HAVE
INDICATED TO THE LEGISLATORS THAT THEY POSSESSED THE SAME BROAD SCOPE
OF INQUIRY AS THE COURT HAD SAID IN ITS OPINION OF FEBRUARY 17 WAS OPEN
TO A CONSTITUTIONAL CONVENTION.  IT HAD SUGGESTED THERE THAT THERE
MIGHT BE APPROPRIATELY CONSIDERED BY THE CONVENTION: 

"1.  WHETHER HAWAII WILL CONTINUE TO USE REGISTERED VOTERS AS THE
APPORTIONMENT BASIS, OR CHANGE IT TO STATE CITIZEN POPULATION ELIGIBLE
TO VOTE (I.E., VOTER POPULATION), OR CITIZEN POPULATION, OR TOTAL
POPULATION. 

"2.  WHETHER IT IS BETTER TO HAVE ONE OR BOTH HOUSES OF THE
LEGISLATURE COMPOSED OF SINGLE MEMBER REPRESENTATIVE DISTRICTS, OR TO
HAVE AND JUSTIFY ONE OR BOTH HOUSES COMPOSED, IN WHOLE OR IN PART, OF
MULTI-MEMBER OR FLOTERIAL DISTRICTS. 

"3.  WHETHER DECENNIAL REAPPORTIONMENT OF EITHER OR BOTH HOUSES
SHOULD BE MADE ON OR BEFORE JUNE 1ST OF THE YEAR PRECEDING THE FEDERAL
CENSUS - AS IS NOW THE CASE - OR ON A DATE SOON AFTER THE TAKING OF
SUCH CENSUS. 

"4.  WHETHER THE REPRESENTATIVE DISTRICT LINES SHOULD REMAIN
SUBSTANTIALLY AS THEY NOW ARE OR WHETHER ULTIMATELY (I.E., AFTER 1970)
THERE SHOULD BE REDISTRICTING IN SUCH A MANNER THAT THE CENSUS TRACTS
AND REPRESENTATIVE DISTRICTS CAN BE COORDINATED FOR THE STATISTICAL
PURPOSES NECESSARY TO IMPLEMENT THE CHANGES (IF ANY) MADE IN THE BASIS
OF REAPPORTIONMENT."  238 F. SUPP., AT 478. 

FN13  "IN REAPPORTIONING AND REDISTRICTING THE SENATE, BOTH HOUSES
OVERLOOKED THE FACT THAT, TO BE VALID, THE MAKEUP OF THE SENATE MUST
POSITIVELY COMPLEMENT THE MAKEUP OF THE HOUSE, TO PROVIDE THE VITAL
EQUALITY OF VOTER REPRESENTATION.  BOTH HOUSES OF THE LEGISLATURE
SEEMINGLY FORGOT THAT THE SCHEMES OF DISTRICTING EACH HOUSE, WHEN
CONJOINED, MUST OFFER COMPENSATING ADVANTAGES TO THE VOTERS - NOT ONLY
TO THOSE VOTERS WITHIN EACH REPRESENTATIVE DISTRICT, BE IT SENATE OR
HOUSE, BUT TO ALL VOTERS THROUGHOUT THE STATE.  WHILE THERE PERFORCE
MUST BE SOME OVERLAP OF REPRESENTATION WITH THE SEVERAL SENATE AND
HOUSE DISTRICTS, THAT OVERLAP MUST NOT BE SUCH AS TO CONCENTRATE AND
INTENSIFY THE VOTING POWER OF A SINGLE SENATORIAL-REPRESENTATIVE
DISTRICT TO THE POINT THAT THE VOTERS THEREIN HAVE A BUILT-IN
DISPROPORTIONATE REPRESENTATIONAL ADVANTAGE OVER ANY OTHER VOTERS OF
THE STATE."  240 F. SUPP., AT 729. 

FN14  APPELLANT BURNS CONCEDES IN HIS BRIEF THAT "IN THE CASE OF THE
HAWAII HOUSE MULTIMEMBER DISTRICTS, EXTENSIVE PROOFS WERE NOT PUT IN AS
TO THE DETAILS OF THE SUBMERGENCE OF MINORITIES."  THERE MAY, FOR
EXAMPLE, BE MERIT IN THE ARGUMENT THAT BY ENCOURAGING BLOCK VOTING
MULTI-MEMBER DISTRICTS DIMINISH THE OPPORTUNITY OF A MINORITY PARTY TO
WIN SEATS.  BUT SUCH EFFECTS MUST BE DEMONSTRATED BY EVIDENCE.    FN15
AS STATED IN THE COURT'S OPINION, THE LEGISLATURE'S PROFFERED
JUSTIFICATIONS WERE: 

"(1) SINGLE-MEMBER DISTRICTS WOULD TEND TO CAUSE THE SENATORS
THEREFROM TO BE CONCERNED WITH LOCALIZED ISSUES AND IGNORE THE BROADER
ISSUES FACING THE STATE, AND THEREFORE IT MIGHT FRAGMENT THE APPROACH
TO STATE-WIDE PROBLEMS AND PROGRAMS TO THE DETRIMENT OF THE STATE; (2)
HISTORICALLY THE MEMBERS OF THE HOUSE HAD REPRESENTED SMALLER
CONSTITUENCIES THAN MEMBERS OF THE SENATE, AND TRADITION AND EXPERIENCE
HAD PROVED THE BALANCE DESIRABLE; (3) MULTI-MEMBER DISTRICTS WOULD
INCREASE THE SIGNIFICANCE OF AN INDIVIDUAL'S VOTE BY FOCUSING HIS
ATTENTION ON THE BROAD SPECTRUM OF MAJOR COMMUNITY PROBLEMS AS OPPOSED
TO THOSE OF MORE LIMITED AND LOCAL CONCERN; (4) TO SET UP SINGLE-MEMBER
DISTRICTS WOULD COMPOUND THE MORE TECHNICAL AND MORE INTRICATE PROBLEM
OF DRAWING THE BOUNDARIES; (5) POPULATION SHIFTS WOULD MORE DRASTICALLY
AFFECT THE BOUNDARIES OF MANY SMALLER SINGLE-MEMBER DISTRICTS - TO A
GREATER DEGREE THAN WOULD BE FOUND IN LARGER MULTI-MEMBER DISTRICTS,
CITING OAHU'S POPULATION BOOM AND SUBDIVISION DEVELOPMENT."  240 F.
SUPP., AT 727. 

FN16  WE REJECT THE SUGGESTION THAT THE DISTRICTS ARE ARBITRARILY OR
INVIDIOUSLY DEFINED.  THE FACT THAT DISTRICT BOUNDARIES MAY HAVE BEEN
DRAWN IN A WAY THAT MINIMIZES THE NUMBER OF CONTESTS BETWEEN PRESENT
INCUMBENTS DOES NOT IN AND OF ITSELF ESTABLISH INVIDIOUSNESS.  AND WE
FIND NO SUPPORT FOR THIS SUGGESTION IN THE PRESENT WIDE VARIANCES IN
SIZE AMONG THE OAHU REPRESENTATIVE DISTRICTS.  THIS DISTRIBUTION IS
GOVERNED BY THE POPULATION SHIFTS WHICH HAVE OCCURRED SINCE THE
DISTRICT BOUNDARIES WERE FIRST DEFINED.  IN THE INITIAL APPORTIONMENT,
THE SIX REPRESENTATIVE DISTRICTS COMPRISING THE FIFTH SENATORIAL
DISTRICT EACH CONTAINED TWO OR THREE REPRESENTATIVES - TWO IN THE
GEOGRAPHICALLY LARGE, RELATIVELY RURAL DISTRICTS AND THREE IN URBAN
DISTRICTS.  THE FOUR REPRESENTATIVE DISTRICTS COMPRISING THE FOURTH
SENATORIAL DISTRICT CONTAINED THREE TO SIX REPRESENTATIVES; THESE
DISTRICTS COMPRISED THE HEART OF RESIDENTIAL HONOLULU, AND WERE
UNDERSTANDABLY COMPACT.  WHETHER ONE SURMISES THAT THE DRAFTERS WERE
LEAVING ROOM FOR EXPANSION IN THE LESS POPULOUS DISTRICTS OR DRAWING
DISTRICT LINES AS A FUNCTION OF SIZE AS WELL AS POPULATION, NO
IRRATIONALITY APPEARS FROM THE DISTRIBUTION.  IT IS RELEVANT TO NOTE
THAT THE HAWAII LEGISLATURE WAS DOMINATED BY MULTI-MEMBER DISTRICTS IN
BOTH HOUSES BEFORE STATEHOOD.  THIS FEATURE THUS DID NOT ORIGINATE WITH
THE SENATE PLAN HERE UNDER CONSIDERATION. 

FN17  THIS FIGURE IS CALCULATED USING 1960 FIGURES; IN THE
APPORTIONMENT OF 1959 OAHU WAS ASSIGNED 36 REPRESENTATIVES, ON THE
BASIS OF 1958 REGISTRATION FIGURES. 

FN18  THUS, IN 1960, THE NINTH AND TENTH DISTRICTS CONTAINED 28% OF
OAHU'S POPULATION BUT ONLY 17% OF ITS REGISTERED VOTERS; THE FIFTEENTH
AND SIXTEENTH DISTRICTS, WITH ONLY 21% OF ISLAND POPULATION CONTAINED
29% OF ISLAND REGISTERED VOTERS.   FN19  E.G., WMCA, INC. V. LOMENZO,
377 U.S., AT 653; MARYLAND COMMITTEE V. TAWES, 377 U.S., AT 674. 

FN20  THUS WE SPOKE OF "THE RIGHT OF A CITIZEN TO EQUAL
REPRESENTATION AND TO HAVE HIS VOTE WEIGHTED EQUALLY WITH THOSE OF ALL
OTHER CITIZENS  ...  ."  REYNOLDS V. SIMS, 377 U.S., AT 576.  WE ALSO
SAID:  "IT IS A PRACTICAL IMPOSSIBILITY TO ARRANGE LEGISLATIVE
DISTRICTS SO THAT EACH ONE HAS AN IDENTICAL NUMBER OF RESIDENTS, OR
CITIZENS, OR VOTERS."  ID., AT 577.  "THE OVERRIDING OBJECTIVE MUST BE
SUBSTANTIAL EQUALITY OF POPULATION AMONG THE VARIOUS DISTRICTS, SO THAT
THE VOTE OF ANY CITIZEN IS APPROXIMATELY EQUAL IN WEIGHT TO THAT OF ANY
OTHER CITIZEN IN THE STATE."  ID., AT 579. 

FN21  IN DAVIS V. MANN, 377 U.S., AT 691, WE REJECTED AN ARGUMENT
THAT UNDERREPRESENTATION OF THREE POLITICAL SUBDIVISIONS IN VIRGINIA
WAS "CONSTITUTIONALLY JUSTIFIABLE SINCE IT ALLEGEDLY RESULTED IN PART
FROM THE FACT THAT THOSE AREAS CONTAIN LARGE NUMBERS OF MILITARY AND
MILITARY-RELATED PERSONNEL.  DISCRIMINATION AGAINST A CLASS OF
INDIVIDUALS, MERELY BECAUSE OF THE NATURE OF THEIR EMPLOYMENT, WITHOUT
MORE BEING SHOWN, IS CONSTITUTIONALLY IMPERMISSIBLE."  SEE ALSO
CARRINGTON V. RASH, 380 U.S. 89.  WHERE THE EXCLUSION IS OF THOSE NOT
MEETING A STATE'S RESIDENCE REQUIREMENTS, HOWEVER, DIFFERENT PRINCIPLES
APPLY.  THE DIFFERENCE BETWEEN EXCLUSION OF ALL MILITARY AND MILITARY
RELATED PERSONNEL, AND EXCLUSION OF THOSE NOT MEETING A STATE'S
RESIDENCE REQUIREMENTS IS A DIFFERENCE BETWEEN AN ARBITRARY AND A
CONSTITUTIONALLY PERMISSIBLE CLASSIFICATION. 

FN22  BUCKLEY V. HOFF, 243 F. SUPP. 873, 876 (D.C. VT. 1965). 

FN23  ELLIS DISAPPROVED A REGISTERED VOTERS BASIS FOR APPORTIONING
THE GOVERNING COUNCIL OF BALTIMORE, MARYLAND.  THE COURT OF APPEALS
HELD THAT THIS BASIS WAS PERMISSIBLE ONLY IF IT YIELDED RESULTS
SUBSTANTIALLY APPROXIMATING THOSE OBTAINED BY USE OF A TOTAL POPULATION
BASE. 

FN24  FOR EXAMPLE, AT ONE POINT DURING WORLD WAR II, THE MILITARY
POPULATION OF OAHU CONSTITUTED ABOUT ONE-HALF THE POPULATION OF THE
TERRITORY.  IF TOTAL POPULATION WERE USED IN SUCH A SITUATION, THE
PERMANENT RESIDENTS LIVING IN DISTRICTS INCLUDING MILITARY BASES MIGHT
HAVE SUBSTANTIALLY GREATER VOTING POWER THAN THE ELECTORS OF DISTRICTS
NOT INCLUDING SUCH BASES.  INDEED, IN VIEW OF THIS POSSIBILITY,
APPELLANT BURNS CONCEDES THAT A "NONTRANSIENT" FIGURE AS WELL AS TOTAL
POPULATION MIGHT BE USED FOR APPORTIONMENT PURPOSES. 

FN25  APPELLANT BURNS URGES HERE THAT THE APPORTIONMENT BASE FOR THE
HOUSE, REGISTERED VOTER FIGURES FROM THE 1958 GENERAL ELECTION, IS
INFECTED BY SUCH AN INCLUSION.  HAWAII WAS THEN A TERRITORY, AND
REGISTRATION WAS GOVERNED BY 48 U.S.C. SEC 619 (1958 ED.), WHICH
PROVIDED:  "NO PERSON SHALL BE ALLOWED TO VOTE WHO IS IN THE TERRITORY
BY REASON OF BEING IN THE ARMY OR NAVY OR BY REASON OF BEING ATTACHED
TO TROOPS IN THE SERVICE OF THE UNITED STATES."  SUCH A RESTRICTION, IF
IMPOSED BY A STATE, WOULD VIOLATE THE EQUAL PROTECTION CLAUSE. 
CARRINGTON V. RASH, 380 U.S. 89.  THE STATUTE NO LONGER APPLIES, BUT
ITS EFFECT PERSISTS IN THE HOUSE APPORTIONMENT.  THE NUMBER OF
REGISTERED VOTERS IN THE DISTRICTS WHERE OAHU'S MAJOR MILITARY BASES
ARE LOCATED HAS INCREASED TWICE AS MUCH AS REGISTRATION IN THE OTHER
OAHU DISTRICTS AND MORE THAN THREE TIMES AS MUCH AS STATE POPULATION
SINCE 1958.  REAPPORTIONMENT OF THE HOUSE NOW ON A REGISTERED VOTERS
BASIS WOULD WORK A SUBSTANTIAL REALIGNMENT OF THE STATE'S
REPRESENTATIVE DISTRICTS.  IF IT CAN BE SHOWN THAT THIS IS SO
PRINCIPALLY BECAUSE MILITARY MEN NOW HAVE A VOTE THEY WERE ONCE DENIED,
RATHER THAN BECAUSE OF SIMPLE POPULATION SHIFTS, AN IMMEDIATE INTERIM
ADJUSTMENT OF HOUSE APPORTIONMENT MIGHT BE MERITED.  TIME DOES NOT
PERMIT THE NECESSARY HEARINGS TO BE HAD BEFORE THE 1966 ELECTIONS, BUT
REQUIRING SUCH HEARINGS IS CERTAINLY WITHIN THE COURT'S AUTHORITY UNDER
ITS CONTINUING JURISDICTION THEREAFTER. 

FN26  THE DISTRICT COURT FOUND THE FIGURE TO BE 87.1%.  EVEN IF AN
ASSERTED ERROR IN STATISTICS IS CORRECTED, THE FIGURE EXCEEDS 80%. 

FN27  NOTE 25, SUPRA.  AN ATTEMPT WAS MADE TO SHOW THAT REGISTRATION
PERCENTAGES AMONG LOW-INCOME RESIDENTS OF OAHU WERE SUBSTANTIALLY LOWER
THAN AMONG OTHER RESIDENT GROUPS.  IT IS UNCLEAR TO WHAT EXTENT THESE
STATISTICS REFLECT MILITARY PAY SCALES.  THUS, THEY MAY BE AN UNFAIR
REPRESENTATION OF STATE CITIZEN REGISTRATION PATTERNS.  MOREOVER, NO
SUBSTANTIAL EFFECT IN SUBMERGING THE POLITICAL VOICE OF THIS GROUP
APPEARS.  OF COURSE, THIS ISSUE MAY BE RE-EXAMINED SHOULD FURTHER
HEARINGS BE HELD IN EXERCISE OF THE COURT'S CONTINUING JURISDICTION. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

BECAUSE JUDICIAL RESPONSIBILITY REQUIRES ME, AS I SEE THINGS, TO BOW
TO THE AUTHORITY OF REYNOLDS V. SIMS, 377 U.S. 533, DESPITE MY ORIGINAL
AND CONTINUING BELIEF THAT THE DECISION WAS CONSTITUTIONALLY WRONG (SEE
MY DISSENTING OPINION, 377 U.S., AT 589 ET SEQ.), I FEEL COMPELLED TO
CONCUR IN THE COURT'S DISPOSITION OF THIS CASE.  EVEN UNDER REYNOLDS,
HOWEVER, I CANNOT AGREE WITH THE RATIONALE, ELABORATED IN PART III OF
THE COURT'S OPINION, BY WHICH HAWAII'S REGISTERED VOTER BASE IS
SUSTAINED.  AS I READ TODAY'S OPINION, REGISTERED VOTER FIGURES ARE AN
ACCEPTABLE BASIS FOR APPORTIONMENT ONLY SO LONG AS THEY SUBSTANTIALLY
APPROXIMATE THE RESULTS THAT WOULD BE REACHED UNDER SOME OTHER TYPE OF
POPULATION-BASED SCHEME OF APPORTIONMENT. 

MANY DIFFICULT QUESTIONS OF JUDGMENT, RELATING BOTH TO POLICY AND TO
ADMINISTRATIVE CONVENIENCE, MUST BE RESOLVED BY A STATE IN DETERMINING
WHAT STATISTICS TO USE IN ESTABLISHING ITS APPORTIONMENT PLAN.  I WOULD
NOT READ REYNOLDS AS PRECLUDING A STATE FROM APPORTIONING ITS
LEGISLATURE ON ANY RATIONAL BASIS CONSISTENT WITH REYNOLDS' PHILOSOPHY
THAT "PEOPLE," NOT OTHER INTERESTS, MUST BE THE BASIS OF STATE
LEGISLATIVE APPORTIONMENT.  I THINK APPORTIONMENT ON THE BASIS OF
REGISTERED VOTERS IS A RATIONAL SYSTEM OF THIS TYPE, AND THAT IT IS
THEREFORE PERMISSIBLE UNDER REYNOLDS REGARDLESS OF WHETHER IN THE
PARTICULAR CASE IT APPROXIMATES SOME OTHER KIND OF A POPULATION
APPORTIONMENT. 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT. 

AT THE TIME REYNOLDS V. SIMS WAS DECIDED, I EXPRESSED THE BELIEF THAT
"THE EQUAL PROTECTION CLAUSE DEMANDS BUT TWO BASIC ATTRIBUTES OF ANY
PLAN OF STATE LEGISLATIVE APPORTIONMENT.  FIRST, IT DEMANDS THAT, IN
THE LIGHT OF THE STATE'S OWN CHARACTERISTICS AND NEEDS, THE PLAN MUST
BE A RATIONAL ONE.  SECONDLY, IT DEMANDS THAT THE PLAN MUST BE SUCH AS
NOT TO PERMIT THE SYSTEMATIC FRUSTRATION OF THE WILL OF A MAJORITY OF
THE ELECTORATE OF THE STATE."  LUCAS V. COLORADO GENERAL ASSEMBLY, 377
U.S. 713, AT PP. 753-754 (DISSENTING OPINION). 

TIME HAS NOT CHANGED MY VIEWS.  I STILL BELIEVE THE COURT
MISCONCEIVED THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE IN
REYNOLDS V. SIMS AND ITS COMPANION CASES.  BUT SO LONG AS THOSE CASES
REMAIN THE LAW, I MUST BOW TO THEM.  AND EVEN UNDER THOSE DECISIONS
THERE IS SURELY ROOM FOR AT LEAST AS MUCH FLEXIBILITY AS THE COURT
TODAY ACCORDS TO HAWAII.  ACCORDINGLY, I CONCUR IN THE JUDGMENT. 
..END :























KRAMER V. UNITED STATES 384 U.S. 100 


NO. 1114.  DECIDED APRIL 25, 1966.  - CERTIORARI GRANTED; 355 F.2D 891,
PARTIALLY VACATED AND REMANDED. 


KRAMER ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE REPRESENTATIONS OF THE SOLICITOR GENERAL
AND UPON AN INDEPENDENT EXAMINATION OF THE ENTIRE RECORD, THE PETITION
FOR A WRIT OF CERTIORARI IS GRANTED, THE ORDER SUSPENDING THE
IMPOSITION OF SENTENCE FOR THE CONVICTION ON COUNT TWO OF THE
INDICTMENT AS TO ROY E. KRAMER IS VACATED, AND THE CAUSE IS REMANDED TO
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR ENTRY OF AN APPROPRIATE SENTENCE.  IN ALL OTHER RESPECTS THE
PETITION FOR A WRIT OF CERTIORARI IS DENIED. 
..END :










FORD, AKA PHELAN V. CALIFORNIA 384 U.S. 100 


NO. 1089.  DECIDED APRIL 25, 1966.  - 236 CAL. APP. 2D 438, 46 CAL.
RPTR.  144, APPEAL DISMISSED. 


FORD, AKA PHELAN V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















PRENSKY V. GELLER 384 U.S. 101 


NO. 1273, MISC.  DECIDED APRIL 25, 1966.  - 22 APP. DIV. 2D 559, 257
N.Y.S.2D 492, APPEAL DISMISSED AND CERTIORARI DENIED. 


PRENSKY V. GELLER, JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW
YORK, ET AL. 

APPEAL FROM THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, FIRST
JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHERON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














SHANNON, AKA KELLY V. SEQUEECHI 384 U.S. 101 


NO. 1261, MISC.  DECIDED APRIL 25, 1966.  - APPEAL DISMISSED. 


SHANNON, AKA KELLY V. SEQUEECHI, SHERIFF, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OKLAHOMA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :


















SEAGRAM & SONS V. HOSTETTER 384 U.S. 35 


NO. 545.  ARGUED FEBRUARY 23, 1966.  - DECIDED APRIL 19, 1966.  - 16
N.Y.2D 47, 209 N.E.2D 701, AFFIRMED. 


APPELLANTS, DISTILLERS, WHOLESALERS, OR IMPORTERS OF DISTILLED
SPIRITS, SUED IN A NEW YORK COURT TO ENJOIN ENFORCEMENT PRINCIPALLY OF
SEC. 9 OF CHAPTER 531, 1964 SESSION LAWS OF NEW YORK, AND TO SECURE A
DECLARATORY JUDGMENT OF ITS UNCONSTITUTIONALITY UNDER THE COMMERCE
CLAUSE, THE SUPREMACY CLAUSE, AND THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMENDMENT.  SECTION 9, PART OF A SWEEPING
REDIRECTION OF NEW YORK'S POLICY REGULATING THE SALE OF LIQUOR IN THE
STATE, REQUIRES THAT MONTHLY PRICE SCHEDULES FOR SALES TO WHOLESALERS
AND RETAILERS FILED WITH THE STATE LIQUOR AUTHORITY MUST BE ACCOMPANIED
BY AN AFFIRMATION THAT THE BOTTLE AND CASE PRICE OF LIQUOR IS "NO
HIGHER THAN THE LOWEST PRICE" AT WHICH SALES WERE MADE ANYWHERE IN THE
COUNTRY IN THE PRECEDING MONTH BY THE BRAND OWNER, HIS AGENT, OR A
"RELATED PERSON."  THE LATTER TERM INCLUDES ANY PERSON A SUBSTANTIAL
PART OF WHOSE BUSINESS IS THE SALE OF BRAND LIQUOR PURCHASED FROM THE
BRAND OWNER OR HIS AGENT.  CONSEQUENTLY, BEFORE A "RELATED PERSON"
WHOLESALER MAY SELL BRAND LIQUOR TO A NEW YORK RETAILER HE MUST SECURE
AN AFFIRMATION FROM THE BRAND OWNER OR HIS AGENT THAT THE PRICE CHARGED
DOES NOT EXCEED THE LOWEST PRICE AT WHICH THE BRAND WAS SOLD TO ANY
RETAILER IN ANY OTHER PART OF THE COUNTRY BY ANY WHOLESALER DOING
"SUBSTANTIAL" BUSINESS WITH THE BRAND OWNER.  A BRAND OWNER DOING
BUSINESS IN NEW YORK MUST THEREFORE KEEP HIMSELF INFORMED OF PRICES
CHARGED BY ALL "RELATED PERSONS" THROUGHOUT THE COUNTRY.  AFFIRMATIONS
BY A PERSON OTHER THAN A BRAND OWNER, HIS AGENT, OR A "RELATED PERSON"
NEED ONLY COVER SALES ELSEWHERE BY THE PERSON FILING THE SCHEDULE.  THE
TRIAL COURT'S JUDGMENT UPHOLDING THE CONSTITUTIONALITY OF THE LAW WAS
AFFIRMED ON APPEAL.  BECAUSE OF VARIOUS STAYS, SEC 9 HAS NOT GONE INTO
EFFECT.  HELD: 

1.  THE PROVISIONS OF SEC 9 DO NOT ON THEIR FACE UNCONSTITUTIONALLY
BURDEN INTERSTATE COMMERCE IN VIOLATION OF THE COMMERCE CLAUSE.  PP. 41
45. 

(A)  THE TWENTY-FIRST AMENDMENT, WHILE NOT OPERATING TOTALLY TO
REPEAL THE COMMERCE CLAUSE, AFFORDS WIDE LATITUDE TO THE STATES IN THE
AREA OF LIQUOR CONTROL.  P. 42. 

(B)  NEW YORK'S REQUIREMENT THAT LIQUOR PRICES TO DOMESTIC
WHOLESALERS AND RETAILERS BE AS LOW AS PRICES OFFERED ELSEWHERE IN THE
COUNTRY IS NOT UNCONSTITUTIONAL.  P. 43. 

(C)  THE EFFECTS OF SEC 9 ON APPELLANTS' BUSINESS OUTSIDE NEW YORK
ARE LARGELY CONJECTURAL.  P. 43. 

(D)  NEW YORK'S REGULATORY PROCEDURE IS COMPARABLE TO THAT FOLLOWED
IN LIQUOR MONOPOLY STATES.  PP. 43-45. 

2.  THE BARE COMPILATION OF PRICE INFORMATION ON LIQUOR SALES TO
WHOLESALERS AND RETAILERS DOES NOT OF ITSELF VIOLATE THE SUPREMACY
CLAUSE BY CONFLICTING WITH THE SHERMAN ACT OR THE ROBINSON-PATMAN ACT;
ANY POTENTIAL CONFLICT WITH THE LATTER ACT IS SPECULATIVE ON THIS
RECORD AND COULD BE ALLEVIATED BY THE LIQUOR AUTHORITY'S DISCRETIONARY
POWER UNDER SEC 7 TO CHANGE SCHEDULE REQUIREMENTS.  PP. 45-46. 

3.  THE IMPOSITION OF STATE MAXIMUM LIQUOR PRICE LEGISLATION TO DEAL
WITH THE PREVIOUS RESALE PRICE MAINTENANCE SYSTEM UNDER WHICH THE
DISTILLERS HAD EXCLUSIVE PRICE-FIXING POWERS DID NOT CONSTITUTE AN
ABUSE OF LEGISLATIVE DISCRETION IN VIOLATION OF THE DUE PROCESS
CLAUSE.  THE WISDOM OF SUCH LEGISLATION IS NOT A MATTER OF JUDICIAL
CONCERN.  PP. 46-48. 

4.  THE STATUTORY DEFINITION OF "RELATED PERSON" DOES NOT VIOLATE DUE
PROCESS REQUIREMENTS BY BEING UNCONSTITUTIONALLY VAGUE.  PP. 48-50. 

(A)  WHERE THE DETERMINATION OF "RELATED PERSON" STATUS IS UNCLEAR,
THE LIQUOR AUTHORITY CAN BE ASKED FOR CLARIFICATION.  P. 49. 

(B)  THE NUMBER OF WHOLESALERS THROUGH WHOM DISTILLERS DEAL BEING
RELATIVELY LIMITED, IT IS NOT UNDULY BURDENSOME ON THE FACE OF SEC 9
FOR THE DISTILLERS TO DETERMINE THE "RELATED PERSON" WHOLESALERS AND
THEIR PRICES.  PP. 49-50. 

5.  THE EXCEPTION OF CONSUMER SALES AND PRIVATE LABEL LIQUOR BRANDS
FROM SEC 9'S "NO HIGHER THAN THE LOWEST PRICE" REQUIREMENT AND THE
REDUCED SCOPE OF PRICE AFFIRMATIONS MADE CONCERNING SALES BY NON
"RELATED PERSONS" DO NOT INVIDIOUSLY DISCRIMINATE IN VIOLATION OF THE
EQUAL PROTECTION CLAUSE.  THE LEGISLATURE COULD REASONABLY HAVE
BELIEVED THAT PRICES CHARGED BY THOSE NOT COVERED BY SEC. 9 WOULD
FOLLOW THE REDUCED PRICES CHARGED BY DISTILLERS AND "RELATED PERSONS"
AND THAT CONSUMER PRICES WOULD ADEQUATELY REFLECT THE REDUCTIONS AT THE
OTHER LEVELS.  PP. 50-51. 

6.  PROVISIONS IN SEC 7, ALSO CHALLENGED BY APPELLANTS, WHICH REQUIRE
THAT PRICE SCHEDULES BE FILED TO COVER SALES TO WHOLESALERS
"IRRESPECTIVE OF THE PLACE OF SALE OR DELIVERY," AND THAT SCHEDULES ON
SALES TO BOTH WHOLESALERS AND RETAILERS INCLUDE "THE NET BOTTLE AND
CASE PRICE PAID BY THE SELLER" ARE CONSTITUTIONAL AS SERVING A
LEGITIMATE INTEREST TO REGULATE NEW YORK SALES AND, AS CONSTRUED BY THE
NEW YORK COURT OF APPEALS, CAN BE WAIVED BY THE LIQUOR AUTHORITY IF
UNRELATED TO SUCH SALES.  PP. 51-52. 

JOSEPH E. SEAGRAM & SONS, INC., ET AL. V. HOSTETTER, CHAIRMAN, NEW YORK
STATE LIQUOR AUTHORITY, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL DRAWS IN QUESTION CERTAIN PROVISIONS OF CHAPTER 531, 1964
SESSION LAWS OF NEW YORK, WHICH WORKED SUBSTANTIAL CHANGES IN THE
STATE'S ALCOHOLIC BEVERAGE CONTROL LAW.  THE APPELLANTS ARE DISTILLERS,
WHOLESALERS, OR IMPORTERS OF DISTILLED SPIRITS, WHO COMMENCED THIS
ACTION IN A NEW YORK COURT FOR AN INJUNCTION AND DECLARATORY JUDGMENT
AGAINST THE APPROPRIATE STATE OFFICIALS, UPON THE GROUND THAT SEC 9 OF
CHAPTER 531 VIOLATES THE FEDERAL CONSTITUTION IN SEVERAL RESPECTS. 
(FN1)  THE TRIAL COURT UPHELD THE CONSTITUTIONALITY OF THE LAW,  (FN2)
AND ITS JUDGMENT WAS AFFIRMED BY THE APPELLATE DIVISION  (FN3) AND BY
THE NEW YORK COURT OF APPEALS.  (FN4)  THE APPELLANTS BROUGHT THE CASE
HERE,  (FN5) AND WE NOW AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

CHAPTER 531 WAS ENACTED AS THE RESULT OF A SWEEPING REDIRECTION OF
NEW YORK'S POLICY REGULATING THE SALE OF LIQUOR IN THE STATE.  FOR MORE
THAN 20 YEARS THE ALCOHOLIC BEVERAGE CONTROL LAW (HEREINAFTER ABC LAW)
HAD REQUIRED BRAND OWNERS OF ALCOHOLIC BEVERAGES OR THEIR AGENTS TO
FILE WITH THE STATE LIQUOR AUTHORITY MONTHLY SCHEDULES LISTING THE
BOTTLE AND CASE PRICE TO BE CHARGED TO WHOLESALERS AND RETAILERS WITHIN
THE STATE.  THESE SCHEDULES WERE PUBLICLY DISPLAYED, AND SALES WERE
PROHIBITED EXCEPT AT THE LISTED PRICES.  (FN6)  IN 1950 THE ABC LAW WAS
AMENDED BY THE ADDITION OF A SECTION WHICH REQUIRED BR AND OWNERS OR
THEIR AGENTS TO FILE PRICE SCHEDULES LISTING THE MINIMUM RETAIL PRICE
AT WHICH EACH BRAND COULD BE SOLD TO CONSUMERS AND WHICH PROHIBITED
RETAIL SALES AT PRICES LESS THAN THOSE FIXED IN THE SCHEDULES.  (FN7)
THE ENFORCEMENT OF THESE MANDATORY MINIMUM RETAIL PRICES WAS ENTRUSTED
TO THE STATE LIQUOR AUTHORITY RATHER THAN TO PRIVATE ACTION, BUT THE
AUTHORITY WAS GIVEN NO POWER TO DETERMINE THE REASONABLENESS OF THE
PRICES THAT WERE FIXED. 

IN 1963, AGAINST A BACKGROUND OF IRREGULARITIES WITHIN THE STATE
LIQUOR AUTHORITY AND EXTENSIVE DISSATISFACTION WITH THE OPERATION OF
THE ABC LAW, THE GOVERNOR OF NEW YORK APPOINTED A COMMISSION TO STUDY
THE SALE AND DISTRIBUTION OF ALCHOLIC BEVERAGES WITHIN THE STATE.  THE
COMMISSION SPONSORED VARIOUS STUDY PAPERS AND ISSUED A SERIES OF
REPORTS AND RECOMMENDATIONS.  (FN8)  IT FOUND UNEQUIVOCALLY THAT
COMPULSORY RESALE PRICE MAINTENANCE HAD HAD "NO SIGNIFICANT EFFECT UPON
THE CONSUMPTION OF ALCOHOLIC BEVERAGES, UPON TEMPERANCE OR UPON THE
INCIDENCE OF SOCIAL PROBLEMS RELATED TO ALCOHOL."  IT ALSO FOUND THAT
NEW YORK LIQUOR CONSUMERS HAD BEEN THE VICTIMS OF SERIOUS
DISCRIMINATION BECAUSE OF THE HIGHER PRICES AND REDUCED COMPETITION
FOSTERED BY THE MANDATORY MINIMUM PRICE MAINTENANCE PROVISION OF THE
LAW.  (FN9)  THE COMMISSION THEREFORE RECOMMENDED THE REPEAL OF THAT
PROVISION,  (FN10) AND THE ULTIMATE RESPONSE OF THE LEGISLATURE WAS THE
ENACTMENT OF CHAPTER 531. 

THE LEGISLATURE DID NOT STOP, HOWEVER, WITH REPEAL OF THE MANDATORY
RESALE PRICE MAINTENANCE PROVISION OF THE LAW.  (FN11)  IN SEC 9 OF
CHAPTER 531 IT IMPOSED THE ADDITIONAL REQUIREMENT THAT THE MONTHLY
PRICE SCHEDULES FOR SALES TO WHOLESALERS AND RETAILERS FILED WITH THE
STATE LIQUOR AUTHORITY MUST BE ACCOMPANIED BY AN AFFIRMATION THAT "THE
BOTTLE AND CASE PRICE OF LIQUOR  ...  IS NO HIGHER THAN THE LOWEST
PRICE" AT WHICH SALES WERE MADE ANYWHERE IN THE UNITED STATES DURING
THE PRECEDING MONTH.  IT IS THIS PROVISION THAT IS THE PRINCIPAL OBJECT
OF THE APPELLANTS' CONSTITUTIONAL ATTACK IN THIS LITIGATION. 

BY THE ADDITION OF PARAGRAPHS (D)-(K) TO SEC 101-B-3 OF THE ABC LAW. 
THE AFFIRMATION REQUIRED BY PARAGRAPH (D), WHICH MUST BE FILED AND
VERIFIED BY BRAND OWNERS OR THEIR AGENTS WHO SELL TO WHOLESALERS IN NEW
YORK, MUST COVER ALL SALES TO WHOLESALERS ANYWHERE IN THE UNITED STATES
BY THE BRAND OWNER, HIS AGENT, OR ANY "RELATED PERSON."  THE LESS
EXTENSIVE AFFIRMATION REQUIRED BY PARAGRAPH (E), WHICH APPLIES TO
PERSONS OTHER THAN BRAND OWNERS OR THEIR AGENTS WHO FILE SCHEDULES FOR
SALES TO WHOLESALERS, NEED ONLY COVER SALES ELSEWHERE BY THE PERSON
FILING THE SCHEDULE.  THE AFFIRMATION REQUIRED BY PARAGRAPH (F), WHICH
MUST BE FILED BY BRAND OWNERS, THEIR AGENTS, OR "RELATED PERSONS" WHO
SELL TO RETAILERS IN NEW YORK, MUST BE VERIFIED BY THE BRAND OWNER OR
HIS AGENT AND MUST COVER ALL SALES TO RETAILERS ANYWHERE IN THE UNITED
STATES BY THE BRAND OWNER, HIS AGENT, OR ANY "RELATED PERSON."  THE
LESS EXTENSIVE AFFIRMATION REQUIRED BY PARAGRAPH (G), WHICH APPLIES TO
WHOLESALERS WHO ARE NOT "RELATED PERSONS," NEED ONLY COVER SALES
ELSEWHERE BY THE PERSON FILING THE SCHEDULE.  (FN12) 

THE TERM "RELATED PERSON" IS DEFINED IN PARAGRAPHS (D) AND (F) TO
INCLUDE ANY PERSON, THE "EXCLUSIVE, PRINCIPAL OR SUBSTANTIAL BUSINESS
OF WHICH IS THE SALE OF A BRAND OR BRANDS OF LIQUOR PURCHASED FROM" THE
BRAND OWNER OR HIS AGENT.  IN CONSEQUENCE, BEFORE A "RELATED PERSON"
WHOLESALER MAY SELL A PARTICULAR BRAND OF LIQUOR TO A NEW YORK
RETAILER, HE MUST SECURE AN AFFIRMATION FROM THE BRAND OWNER OR HIS
AGENT THAT THE PRICE CHARGED BY THE WHOLESALER IS NO HIGHER THAN THE
LOWEST PRICE AT WHICH THE BRAND WAS SOLD TO ANY RETAILER IN ANY OTHER
PART OF THE COUNTRY BY ANY WHOLESALER DOING "SUBSTANTIAL" BUSINESS WITH
THE BRAND OWNER.  THUS, A BRAND OWNER DOING BUSINESS IN NEW YORK MUST
KEEP HIMSELF INFORMED OF THE PRICES CHARGED BY ALL "RELATED PERSONS"
THROUGHOUT THE UNITED STATES. 

THE SCHEME OF SEC 9 OF CHAPTER 531 IS ROUNDED OUT BY THE ADDITION TO
SEC 101-B-3 OF THE ABC LAW OF PARAGRAPH (H), WHICH PROHIBITS SALES TO
WHOLESALERS AND RETAILERS OF BRANDS FOR WHICH NO AFFIRMATION HAS BEEN
FILED; PARAGRAPH (I), WHICH REQUIRES THE "LOWEST PRICE" TO REFLECT ALL
DISCOUNTS AND OTHER ALLOWANCES TO WHOLESALERS AND RETAILERS, WITH THE
EXCEPTION OF STATE TAXES AND DELIVERY COSTS; AND PARAGRAPHS (J) AND
(K), WHICH IMPOSE CRIMINAL PENALTIES FOR THE FILING OF A FALSE
AFFIRMATION. 

AS A RESULT OF A SERIES OF STAYS GRANTED THROUGHOUT THIS LITIGATION,
THE PROVISIONS OF SEC 9 HAVE NOT YET BEEN PUT INTO EFFECT.  OUR CONCERN
HERE, THEREFORE, IS ONLY WITH THE CONSTITUTIONALITY OF THOSE PROVISIONS
ON THEIR FACE.  THE APPELLANTS ATTACK SEC. 9 ON MANY CONSTITUTIONAL
FRONTS.  THEY CONTEND THAT ITS PROVISIONS PLACE AN ILLEGAL BURDEN UPON
INTERSTATE COMMERCE, CONFLICT WITH FEDERAL ANTITRUST LEGISLATION AND
THUS FALL UNDER THE SUPREMACY CLAUSE, AND VIOLATE BOTH THE DUE PROCESS
CLAUSE AND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  WE
FIND ALL THESE CONTENTIONS WITHOUT MERIT. 

CONSIDERATION OF ANY STATE LAW REGULATING INTOXICATING BEVERAGES MUST
BEGIN WITH THE TWENTY-FIRST AMENDMENT, THE SECOND SECTION OF WHICH
PROVIDES THAT:  "THE TRANSPORTATION OR IMPORTATION INTO ANY STATE,
TERRITORY, OR POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE
THEREIN OF INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS
HEREBY PROHIBITED."  AS THIS COURT HAS CONSISTENTLY HELD, "THAT
AMENDMENT BESTOWED UPON THE STATES BROAD REGULATORY POWER OVER THE
LIQUOR TRAFFIC WITHIN THEIR TERRITORIES."  UNITED STATES V. FRANKFORT
DISTILLERIES, 324 U.S. 293, 299.  CF. NIPPERT V. RICHMOND, 327 U.S.
416, 425, N. 15.  JUST TWO TERMS AGO WE TOOK OCCASION TO REITERATE THAT
"A STATE IS TOTALLY UNCONFINED BY TRADITIONAL COMMERCE CLAUSE
LIMITATIONS WHEN IT RESTRICTS THE IMPORTATION OF INTOXICANTS DESTINED
FOR USE, DISTRIBUTION, OR CONSUMPTION WITHIN ITS BORDERS."  HOSTETTER
V. IDLEWILD LIQUOR CORP., 377 U.S. 324, 330.  SEE STATE BOARD OF
EQUALIZATION V. YOUNG'S MARKET CO., 299 U.S. 59; MAHONEY V. JOSEPH
TRINER CORP., 304 U.S. 401; ZIFFRIN, INC. V. REEVES, 308 U.S. 132;
CALIFORNIA V. WASHINGTON, 358 U.S. 64.  CF. INDIANAPOLIS BREWING CO. V.
LIQUOR COMM'N, 305 U.S. 391; JOSEPH S. FINCH & CO. V. MCKITTRICK, 305
U.S. 395.  AS THE IDLEWILD CASE MADE CLEAR, HOWEVER, THE SECOND SECTION
OF THE TWENTY-FIRST AMENDMENT HAS NOT OPERATED TOTALLY TO REPEAL THE
COMMERCE CLAUSE IN THE AREA OF THE REGULATION OF TRAFFIC IN LIQUOR.  IN
IDLEWILD THE ULTIMATE DELIVERY AND USE OF THE LIQUOR WAS IN A FOREIGN
COUNTRY, AND THE COURT HELD THAT UNDER THOSE CIRCUMSTANCES NEW YORK
COULD NOT FORBID SALES MADE UNDER THE EXPLICIT SUPERVISION OF THE
UNITED STATES CUSTOMS BUREAU, PURSUANT TO LAWS ENACTED BY CONGRESS
UNDER THE COMMERCE CLAUSE FOR THE REGULATION OF COMMERCE WITH FOREIGN
NATIONS.  CF. DEPT. OF ALCOHOLIC BEVERAGE CONTROL V. AMMEX WAREHOUSE
CO., 378 U.S. 124; COLLINS V. YOSEMITE PARK CO., 304 U.S. 518. 

UNLIKE IDLEWILD, THE PRESENT CASE CONCERNS LIQUOR DESTINED FOR USE,
DISTRIBUTION, OR CONSUMPTION IN THE STATE OF NEW YORK.  IN THAT
SITUATION, THE TWENTY-FIRST AMENDMENT DEMANDS WIDE LATITUDE FOR
REGULATION BY THE STATE.  WE NEED NOT NOW DECIDE WHETHER THE MODE OF
LIQUOR REGULATION CHOSEN BY A STATE IN SUCH CIRCUMSTANCES COULD EVER
CONSTITUTE SO GRAVE AN INTERFERENCE WITH A COMPANY'S OPERATIONS
ELSEWHERE AS TO MAKE THE REGULATION INVALID UNDER THE COMMERCE CLAUSE. 
(FN13)  SEE BALDWIN V. G.A.F. SEELIG, 294 U.S. 511.  NO SUCH SITUATION
IS PRESENTED IN THIS CASE.  THE MERE FACT THAT SEC 9 IS GEARED TO
APPELLANTS' PRICING POLICIES IN OTHER STATES IS NOT SUFFICIENT TO
INVALIDATE THE STATUTE.  AS PART OF ITS REGULATORY SCHEME FOR THE SALE
OF LIQUOR, NEW YORK MAY CONSTITUTIONALLY INSIST THAT LIQUOR PRICES TO
DOMESTIC WHOLESALERS AND RETAILERS BE AS LOW AS PRICES OFFERED
ELSEWHERE IN THE COUNTRY.  THE SERIOUS DISCRIMINATORY EFFECTS OF SEC 9
ALLEGED BY APPELLANTS ON THEIR BUSINESS OUTSIDE NEW YORK ARE LARGELY
MATTERS OF CONJECTURE.  IT IS BY NO MEANS CLEAR, FOR INSTANCE, THAT SEC
9 MUST INEVITABLY PRODUCE HIGHER PRICES IN OTHER STATES, AS CLAIMED BY
APPELLANTS, RATHER THAN THE LOWER PRICES SOUGHT FOR NEW YORK.  IT WILL
BE TIME ENOUGH TO ASSESS THE ALLEGED EXTRATERRITORIAL EFFECTS OF SEC 9
WHEN A CASE ARISES THAT CLEARLY PRESENTS THEM.  "THE MERE FACT THAT
STATE ACTION MAY HAVE REPERCUSSIONS BEYOND STATE LINES IS OF NO
JUDICIAL SIGNIFICANCE SO LONG AS THE ACTION IS NOT WITHIN THAT DOMAIN
WHICH THE CONSTITUTION FORBIDS."  OSBORN V. OZLIN, 310 U.S. 53, 62. 
CF. HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313; SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177, 189; BALDWIN V. G.A.F.
SEELIG, 294 U.S. 511, 528. 

MOREOVER, AS THE COURT OF APPEALS OBSERVED, THE REGULATORY PROCEDURE
FOLLOWED BY NEW YORK IS COMPARABLE TO THAT PRACTICED BY THOSE STATES,
17 IN NUMBER, IN WHICH LIQUOR IS SOLD BY THE STATE ITSELF AND NOT BY
PRIVATE ENTERPRISE.  EACH OF THESE MONOPOLY STATES, WE ARE TOLD,
REQUIRES DISTILLERS TO WARRANT THAT THE PRICE CHARGED THE STATE IS NO
HIGHER THAN THE PRICE CHARGED IN OTHER STATES.  IN AT LEAST ONE OF
THESE STATES, THE DISTILLERS ARE REQUIRED TO ADJUST THE SALES PRICE TO
INCLUDE ALL REBATES AND OTHER ALLOWANCES MADE TO PURCHASERS ELSEWHERE,
AND THE STATE HAS TAKEN POSITIVE PRECAUTIONS TO INSURE THAT THE
CONTRACTUAL COMMITMENTS ARE FULFILLED.  (FN14)  IN SOME RESPECTS, THE
BURDEN OF GATHERING INFORMATION FOR THE WARRANTIES MADE TO THE MONOPOLY
STATES MAY BE MORE ONEROUS THAN THAT REQUIRED FOR THE AFFIRMATIONS
UNDER SEC 9, SINCE THE WARRANTIES GENERALLY COVER PRICES IN OTHER
STATES AT THE VERY TIME OF SALE TO THE MONOPOLY STATE, WHEREAS THE
AFFIRMATIONS FILED UNDER SEC 9 COVER PRICES CHARGED ELSEWHERE DURING
THE PRECEDING MONTH. 

WE THEREFORE CONCLUDE THAT THE PROVISIONS OF SEC. 9 ON THEIR FACE
PLACE NO UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE. 

THE APPELLANTS' CONTENTION THAT SEC 9 VIOLATES THE COMMAND OF THE
SUPREMACY CLAUSE NEEDS NO EXTENDED DISCUSSION.  THE ARGUMENT IS BASED
UPON A CLAIMED INCONSISTENCY BETWEEN SEC 9 AND THE FEDERAL ANTITRUST
LAWS, SPECIFICALLY THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C.
SECS 1-7 (1964 ED.), AND SEC 2 OF THE CLAYTON ACT, 38 STAT. 730, AS
AMENDED BY THE ROBINSON-PATMAN ACT, 49 STAT. 1526, 15 U.S.C. SEC. 13
(1964 ED.). 

IN THIS AS IN OTHER AREAS OF COINCIDENT FEDERAL AND STATE REGULATION,
THE "TEACHING OF THIS COURT'S DECISIONS  ...  ENJOINS SEEKING OUT
CONFLICTS BETWEEN STATE AND FEDERAL REGULATION WHERE NONE CLEARLY
EXISTS."  HURON CEMENT CO. V. DETROIT, 362 U.S. 440, 446.  WE FIND NO
SUCH CLEAR CONFLICT IN THE PRESENT CASE.  THE BARE COMPILATION, WITHOUT
MORE, OF PRICE INFORMATION ON SALES TO WHOLESALERS AND RETAILERS TO
SUPPORT THE AFFIRMATIONS FILED WITH THE STATE LIQUOR AUTHORITY WOULD
NOT OF ITSELF VIOLATE THE SHERMAN ACT.  MAPLE FLOORING ASSN. V. UNITED
STATES, 268 U.S. 563, 582-586; CF. AMERICAN COLUMN CO. V. UNITED
STATES, 257 U.S. 377.  SECTION 9 IMPOSES NO IRRESISTIBLE ECONOMIC
PRESSURE ON THE APPELLANTS TO VIOLATE THE SHERMAN ACT IN ORDER TO
COMPLY WITH THE REQUIREMENTS OF SEC 9.  ON THE CONTRARY, SEC 9 APPEARS
FIRMLY ANCHORED TO THE ASSUMPTION THAT THE SHERMAN ACT WILL DETER ANY
ATTEMPTS BY THE APPELLANTS TO PRESERVE THEIR NEW YORK PRICE LEVEL BY
CONSPIRING TO RAISE THE PRICES AT WHICH LIQUOR IS SOLD ELSEWHERE IN THE
COUNTRY.  NOTHING IN THE TWENTY-FIRST AMENDMENT, OF COURSE, WOULD
PREVENT ENFORCEMENT OF THE SHERMAN ACT AGAINST SUCH A CONSPIRACY. 
UNITED STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293, 299.    ALTHOUGH
IT IS POSSIBLE TO ENVISION CIRCUMSTANCES UNDER WHICH PRICE
DISCRIMINATIONS PROSCRIBED BY THE ROBINSON-PATMAN ACT MIGHT BE
COMPELLED BY SEC. 9, THE EXISTENCE OF SUCH POTENTIAL CONFLICTS IS
ENTIRELY TOO SPECULATIVE IN THE PRESENT POSTURE OF THIS CASE TO SUPPORT
THE CONCLUSION THAT NEW YORK IS FORECLOSED FROM REGULATING LIQUOR
PRICES IN THE MANNER IT HAS CHOSEN.  (FN15)  MOREOVER, SEC 7 OF CHAPTER
531 HAS AMENDED THE ABC LAW BY GRANTING TO THE STATE LIQUOR AUTHORITY
AMPLE DISCRETION TO MODIFY THE SCHEDULE REQUIREMENTS.  (FN16)  WE
CANNOT PRESUME THAT THE AUTHORITY WILL NOT EXERCISE THAT DISCRETION TO
ALLEVIATE ANY FRICTION THAT MIGHT RESULT SHOULD THE ABC LAW CHAFE
AGAINST THE ROBINSON-PATMAN ACT OR ANY OTHER FEDERAL STATUTE. 

THERE REMAIN FOR CONSIDERATION THE APPELLANTS' FOURTEENTH AMENDMENT
CLAIMS.  SECTION 9, THEY SAY, VIOLATES THE DUE PROCESS CLAUSE IN TWO
RESPECTS, FIRST BECAUSE IT IMPOSES AN "UNREASONABLE, ARBITRARY, AND
CAPRICIOUS" BURDEN UPON THEM, AND SECOND BECAUSE THE STATUTORY
DEFINITION OF "RELATED PERSON" IS SO VAGUE AS TO BE CONSTITUTIONALLY
INTOLERABLE.  AND SEC 9 VIOLATES THE EQUAL PROTECTION CLAUSE, THEY SAY,
BECAUSE IT ARBITRARILY DISCRIMINATES AMONG VARIOUS SEGMENTS OF THE
LIQUOR INDUSTRY. 

THE FIRST CONTENTION AMOUNTS TO A CLAIM OF A DEPRIVATION OF DUE
PROCESS OF LAW, BASED ON THE ARGUMENT THAT SEC 9 IS NOT DESIGNED TO
PROMOTE TEMPERANCE AND THAT IT IS AN UNWISE, IMPRACTICAL, AND
OPPRESSIVE LAW.  BUT IT IS NOT "THE PROVINCE OF COURTS TO DRAW ON THEIR
OWN VIEWS AS TO THE MORALITY, LEGITIMACY, AND USEFULNESS OF A
PARTICULAR BUSINESS IN ORDER TO DECIDE WHETHER A STATUTE BEARS TOO
HEAVILY UPON THAT BUSINESS AND BY SO DOING VIOLATES DUE PROCESS.  UNDER
THE SYSTEM OF GOVERNMENT CREATED BY OUR CONSTITUTION, IT IS UP TO
LEGISLATURES, NOT COURTS, TO DECIDE ON THE WISDOM AND UTILITY OF
LEGISLATION.  THERE WAS A TIME WHEN THE DUE PROCESS CLAUSE WAS USED BY
THIS COURT TO STRIKE DOWN LAWS WHICH WERE THOUGHT UNREASONABLE, THAT
IS, UNWISE OR INCOMPATIBLE WITH SOME PARTICULAR ECONOMIC OR SOCIAL
PHILOSOPHY  ...  .  THE DOCTRINE  ...  THAT DUE PROCESS AUTHORIZES
COURTS TO HOLD LAWS UNCONSTITUTIONAL WHEN THEY BELIEVE THE LEGISLATURE
HAS ACTED UNWISELY  ...  HAS LONG SINCE BEEN DISCARDED.  WE HAVE
RETURNED TO THE ORIGINAL CONSTITUTIONAL PROPOSITION THAT COURTS DO NOT
SUBSTITUTE THEIR SOCIAL AND ECONOMIC BELIEFS FOR THE JUDGMENT OF
LEGISLATIVE BODIES, WHO ARE ELECTED TO PASS LAWS  ...  ."  FERGUSON V.
SKRUPA, 372 U.S. 726, 728-730. 

MOREOVER, NOTHING IN THE TWENTY-FIRST AMENDMENT OR ANY OTHER PART OF
THE CONSTITUTION REQUIRES THAT STATE LAWS REGULATING THE LIQUOR
BUSINESS BE MOTIVATED EXCLUSIVELY BY A DESIRE TO PROMOTE TEMPERANCE. 
(FN17)  THE ANNOUNCED PURPOSE OF THE LEGISLATURE WAS TO ELIMINATE
"DISCRIMINATION AGAINST AND DISADVANTAGE OF CONSUMERS" IN THE STATE. 
(FN18)  FRUSTRATED BY YEARS OF UNHAPPY EXPERIENCE WITH A STATE-ENFORCED
MANDATORY RESALE PRICE MAINTENANCE SYSTEM THAT PLACED EXCLUSIVE PRICE
FIXING POWER IN THE HANDS OF THE DISTILLERS, THE LEGISLATURE ADOPTED
SEC 9 AS THE CORE OF THE LIQUOR PRICE REFORM CONTEMPLATED BY CHAPTER
531.  WE CANNOT SAY THAT THE LEGISLATURE ACTED UNCONSTITUTIONALLY WHEN
IT DETERMINED THAT ONLY BY IMPOSING THE RELATIVELY DRASTIC "NO HIGHER
THAN THE LOWEST PRICE" REQUIREMENT OF SEC 9 COULD THE GRIP OF THE
LIQUOR DISTILLERS ON NEW YORK LIQUOR PRICES BE LOOSENED.  (FN19)  IN A
VARIETY OF CASES IN AREAS NO MORE SENSITIVE THAN THAT OF LIQUOR
CONTROL, THIS COURT HAS UPHELD STATE MAXIMUM PRICE LEGISLATION.  SEE
NEBBIA V. NEW YORK, 291 U.S. 502; TOWNSEND V. YEOMANS, 301 U.S. 441;
O'GORMAN & YOUNG V. HARTFORD FIRE INS. CO., 282 U.S. 251; GOLD V.
DICARLO, 380 U.S. 520. 

THE STATUTORY DEFINITION OF "RELATED PERSON," WHICH THE APPELLANTS
ATTACK AS UNCONSTITUTIONALLY VAGUE, INCLUDES ANY PERSON "THE EXCLUSIVE,
PRINCIPAL OR SUBSTANTIAL BUSINESS OF WHICH IS THE SALE OF A BRAND OR
BRANDS OF LIQUOR PURCHASED FROM SUCH BRAND OWNER OR WHOLESALER
DESIGNATED AS AGENT  ... ."  THE CLAIM OF VAGUENESS IS CENTERED UPON
THE TERM "PRINCIPAL OR SUBSTANTIAL."  WE CANNOT AGREE THAT THE LANGUAGE
IS SO VAGUE AS TO BE CONSTITUTIONALLY INVALID.  THE DEPUTY COMMISSIONER
OF THE STATE LIQUOR AUTHORITY TESTIFIED IN THESE PROCEEDINGS THAT WHERE
THE DETERMINATION OF "RELATED PERSONS" IS UNCLEAR, THE APPELLANTS WILL
HAVE ACCESS TO THE AUTHORITY FOR A RULING TO CLARIFY THE ISSUE.  (FN20)
AS THE COURT SAID IN BOARD OF GOVERNORS V. AGNEW, 329 U.S. 441, 449, "
...  WE THINK IT PLAIN UNDER OUR DECISIONS THAT IF SUBSTANTIALITY IS
THE STATUTORY GUIDE, THE LIMITS OF ADMINISTRATIVE ACTION ARE
SUFFICIENTLY DEFINITE OR ASCERTAINABLE SO AS TO SURVIVE CHALLENGE ON
THE GROUNDS OF UNCONSTITUTIONALITY."  CF. OPP COTTON MILLS V.
ADMINISTRATOR, 312 U.S. 126, 142-146; BOWLES V. WILLINGHAM, 321 U.S.
503, 512-516. 

FURTHER, AS THE RECORD INDICATES, THE STRUCTURE OF THE LIQUOR
INDUSTRY IS SUCH THAT EVEN THE LARGEST NATIONAL DISTILLERS DEAL THROUGH
A RELATIVELY LIMITED NUMBER OF WHOLESALERS.  (FN21) FREQUENTLY, A
WHOLESALER AGREES WITH A DISTILLER NOT TO SELL BRANDS OF COMPETING
DISTILLERS IN THE SAME PRICE RANGE, AND THE PRICES CHARGED BY THESE
WHOLESALERS ARE POTENTIALLY SUBJECT TO THE INFLUENCE OF THE
DISTILLERS.  (FN22)  WE CANNOT SAY, THEREFORE, THAT SEC. 9 ON ITS FACE
IMPOSES AN UNCONSTITUTIONAL BURDEN ON DISTILLERS OR WHOLESALERS IN
ASCERTAINING THE WHOLESALERS WHO SATISFY THE "RELATED PERSON" CRITERION
OR IN OBTAINING INFORMATION ON PRICES CHARGED BY SUCH WHOLESALERS. 

WE COME, THEN, TO THE APPELLANTS' ARGUMENT THAT SEC 9 VIOLATES THE
EQUAL PROTECTION CLAUSE.  THAT ARGUMENT IS BASED UPON THE CLAIM THAT IT
WAS ARBITRARY FOR THE LEGISLATURE TO EXCEPT CONSUMER SALES AND PRIVATE
LABEL BRANDS OF LIQUOR FROM THE "NO HIGHER THAN THE LOWEST PRICE"
REQUIREMENT OF SEC 9, AND TO REDUCE THE SCOPE OF THE PRICE AFFIRMATION
REQUIRED WITH RESPECT TO SALES MADE TO WHOLESALERS AND RETAILERS BY
THOSE WHO ARE NOT "RELATED PERSONS." 

WE DO NOT FIND THAT THESE DIFFERENTIATIONS CONSTITUTE INVIDIOUS
DISCRIMINATION.  THE LEGISLATURE COULD REASONABLY HAVE BELIEVED THAT,
ONCE THE PRICES ON SALES BY DISTILLERS AND "RELATED PERSONS" WERE
REDUCED, THE PRICES OF PRIVATE LABEL BRANDS AND BRANDS SOLD BY NON
"RELATED PERSONS" WOULD FOLLOW SUIT.  NOR WAS IT NECESSARY FOR THE
LEGISLATURE TO IMPOSE THE "NO HIGHER THAN THE LOWEST PRICE" REQUIREMENT
ON SALES BY RETAILERS TO CONSUMERS.  THE LEGISLATURE MIGHT REASONABLY
HAVE CONCLUDED THAT CONSUMER PRICES WOULD ADEQUATELY REFLECT THE
REDUCTIONS IN PRICES TO WHOLESALERS AND RETAILERS ACCOMPLISHED BY SEC
9, EVEN THOUGH THE STATE FAIR TRADE STATUTE, WHICH PERMITS PRIVATE
RESALE PRICE MAINTENANCE AGREEMENTS ON SALES TO CONSUMERS, APPEARS TO
HAVE EMERGED UNSCATHED BY THE ENACTMENT OF CHAPTER 531.  (FN23)  "A
STATUTE IS NOT INVALID UNDER THE CONSTITUTION BECAUSE IT MIGHT HAVE
GONE FARTHER THAN IT DID, OR BECAUSE IT MAY NOT SUCCEED IN BRINGING
ABOUT THE RESULT THAT IT TENDS TO PRODUCE."  ROSCHEN V. WARD, 279 U.S.
337, 339.  "THE REFORM MAY TAKE ONE STEP AT A TIME, ADDRESSING ITSELF
TO THE PHASE OF THE PROBLEM WHICH SEEMS MOST ACUTE TO THE LEGISLATIVE
MIND."  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489. 

ALTHOUGH THE APPELLANTS' PRIMARY ATTACK IS UPON THE CONSTITUTIONALITY
OF SEC 9, THEY ALSO CHALLENGE TWO MINOR PROVISIONS ADDED BY SEC 7 OF
CHAPTER 531 TO THE SCHEDULE REQUIREMENTS OF THE ABC LAW.  THE FIRST
PROVISION, WHICH REQUIRES THE PRICE SCHEDULES TO COVER SALES TO
WHOLESALERS "IRRESPECTIVE OF THE PLACE OF SALE OR DELIVERY," IS
DESIGNED TO BRING WHOLESALERS WITHIN THE PRICE-PUBLICITY REQUIREMENT OF
THE LAW, EVEN THOUGH THEY TAKE DELIVERY OF THE LIQUOR OUTSIDE NEW YORK
FOR DISTRIBUTION WITHIN THE STATE.  THE SECOND PROVISION, WHICH
REQUIRES THE PRICE SCHEDULES ON SALES TO BOTH WHOLESALERS AND RETAILERS
TO INCLUDE "THE NET BOTTLE AND CASE PRICE PAID BY THE SELLER," TENDS TO
PROMOTE PUBLICITY OF THE SELLER'S PROFIT MARGINS.  (FN24)  THERE IS NO
INDICATION IN THE PRESENT RECORD THAT THE STATE LIQUOR AUTHORITY WILL
REQUIRE THE APPELLANTS TO FILE SCHEDULES OF PRICES ON SALES UNRELATED
TO THE DISTRIBUTION OF LIQUOR IN NEW YORK.  AS THE COURT OF APPEALS
OBSERVED WITH REGARD TO THESE PROVISIONS, "THE STATUTE IS CONCERNED
WITH NEW YORK PRACTICES AND, IF THE SALES IN OTHER STATES HAVE NO
RELEVANCY TO NEW YORK ENFORCEMENT, THE STATUTE PERMITS THE LIQUOR
AUTHORITY FOR GOOD CAUSE TO WAIVE THE GENERAL PROHIBITION AGAINST SALES
TO WHOLESALERS IN THE ABSENCE OF SUCH SCHEDULES.  IT WOULD BE
REASONABLE TO EXPECT THAT THE STATUTE WOULD BE ADMINISTERED
CONSISTENTLY WITH ITS SOLE PURPOSE TO REGULATE THE INTRASTATE SALE OF
LIQUOR."  16 N.Y.2D 47, 59; 209 N.E.2D 701, 706.  WE ACCEPT THIS
CONSTRUCTION OF THE STATUTE BY NEW YORK'S HIGHEST COURT.  N.A.A.C.P. V.
BUTTON, 371 U.S. 415, 432.  AS SO CONSTRUED, THESE PROVISIONS SERVE A
CLEAR AND LEGITIMATE INTEREST OF NEW YORK IN THE EXERCISE OF ITS
CONSTITUTIONAL POWER TO REGULATE THE SALE OF LIQUOR WITHIN ITS
BORDERS. 

FOR THE REASONS THAT WE HAVE STATED, WE FIND NO CONSTITUTIONAL
INFIRMITY IN ANY OF THE 1964 AMENDMENTS TO THE NEW YORK ABC LAW
CHALLENGED ON THIS APPEAL.  ALTHOUGH IT IS POSSIBLE THAT SPECIFIC
FUTURE APPLICATIONS OF CHAPTER 531 MAY ENGENDER CONCRETE PROBLEMS OF
CONSTITUTIONAL DIMENSION, IT WILL BE TIME ENOUGH TO CONSIDER ANY SUCH
PROBLEMS WHEN THEY ARISE.  WE DEAL HERE ONLY WITH THE STATUTE ON ITS
FACE.  AND WE HOLD THAT, SO CONSIDERED, THE LEGISLATION IS
CONSTITUTIONALLY VALID.  ACCORDINGLY, THE JUDGMENT OF THE NEW YORK
COURT OF APPEALS IS AFFIRMED. 

FN1  THE APPELLANTS ALSO CHALLENGED TWO MINOR PROVISIONS OF SEC 7 OF
CHAPTER 531, 1964 SESSION LAWS OF NEW YORK.  SEE PP. 51-52, INFRA.  THE
RELEVANT PROVISIONS OF SECS 7, 8 AND 9 OF CHAPTER 531 ARE SET OUT IN
THE APPENDIX TO THIS OPINION. 

FN2  45 MISC. 2D 956, 258 N.Y.S.2D 442. 

FN3  23 APP. DIV. 2D 933, 259 N.Y.S.2D 644. 

FN4  16 N.Y.2D 47, 209 N.E.2D 701. 

FN5  382 U.S. 924. 

FN6  LAWS 1942, C. 899, SEC. 1, ALCOHOLIC BEVERAGE CONTROL LAW, SECS.
101-B-3(A)-(D)(1946 ED.). 

FN7  LAWS 1950, C. 689, SEC 1, ALCOHOLIC BEVERAGE CONTROL LAW, SEC
101-C (1964 SUPP.). 

FN8  SEE NEW YORK STATE LEGISLATIVE ANNUAL 401-408, 484-489, 498-500
(1964); BREUER, MORELAND ACT INVESTIGATIONS IN NEW YORK:  1907-65, PP.
131-169 (1965).  THE COMMISSION'S STUDY PAPER NUMBER 5 ("RESALE PRICE
MAINTENANCE IN THE LIQUOR INDUSTRY") AND REPORT AND RECOMMENDATIONS NO.
3 ("MANDATORY RESALE PRICE MAINTENANCE") ARE PART OF THE RECORD IN THIS
CASE. 

FN9  BASED UPON THE COMPARATIVE PRICE DATA IT ASSEMBLED, INCLUDING
EXAMPLES OF WHOLESALE LIQUOR PRICES IN NEW YORK HIGHER THAN RETAIL
PRICES ELSEWHERE, THE COMMISSION CONCLUDED THAT, BECAUSE OF THE
MANDATORY RESALE PRICE MAINTENANCE PROVISION, NEW YORKERS WERE
SUBSIDIZING THE LIQUOR INDUSTRY BY $150,000,000 A YEAR. 

FN10  THE COMMISSION MADE VARIOUS OTHER RECOMMENDATIONS, INCLUDING
RELAXATION OF CERTAIN RESTRICTIONS ON PACKAGE STORE LICENSES AND
ELIMINATION OF SOME OF THE CONDITIONS IMPOSED ON ESTABLISHMENTS SERVING
LIQUOR BY THE DRINK. 

FN11  THE MANDATORY RESALE PRICE MAINTENANCE PROVISION, SEC 101-C,
WAS REPEALED BY SEC 11 OF CHAPTER 531. 

FN12  SELLERS SEEKING TO TAKE ADVANTAGE OF THE MILDER AFFIRMATIONS
REQUIRED BY PARAGRAPHS (E) AND (G) MUST FILE A REPRESENTATION THAT THEY
ARE NOT "RELATED PERSONS."  SEE ALCOHOLIC BEVERAGE CONTROL LAW,
APPENDIX, RULE 16 OF THE STATE LIQUOR AUTHORITY, SEC. 65.7(E)(1965
SUPP.), 9 NYCRR 65.7(E).  THE SCHEDULE REQUIREMENTS OF SEC. 101-B DO
NOT APPLY TO SALES OF PRIVATE LABEL BRANDS OF LIQUOR.  ALCOHOLIC
BEVERAGE CONTROL LAW, SEC. 101-B-3(C). 

FN13  CF. UNITED STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293, 299,
WHERE WE STATED THAT THE TWENTY-FIRST AMENDMENT "HAS NOT GIVEN THE
STATES PLENARY AND EXCLUSIVE POWER TO REGULATE THE CONDUCT OF PERSONS
DOING AN INTERSTATE LIQUOR BUSINESS OUTSIDE THEIR BOUNDARIES."  SEE
ALSO NOTE, THE TWENTY-FIRST AMENDMENT VERSUS THE INTERSTATE COMMERCE
CLAUSE, 55 YALE L.J. 815 (1946). 

FN14  THE EXECUTIVE VICE-PRESIDENT OF ONE OF THE APPELLANTS TESTIFIED
THAT "WE AND OTHER DISTILLERS HAVE FREELY ENTERED INTO CONTRACTS WITH
THESE MONOPOLY STATES IN WHICH WE WARRANT THAT THE F.O.B. PRICES AT
WHICH OUR BRANDS ARE OFFERED TO THOSE STATES ARE NO HIGHER THAN THE
LOWEST PRICE AT WHICH WE SELL IN OTHER STATES." 

THE DEPUTY COMMISSIONER OF THE STATE LIQUOR AUTHORITY TESTIFIED THAT
"IN A NUMBER OF OTHER STATES, E.G., IN THE STATE OF PENNSYLVANIA, SOME
OF THESE SAME PLAINTIFFS HAVE BEEN WARRANTING FOR SOME TIME PAST THAT
THE PRICE QUOTED TO THE PENNSYLVANIA LIQUOR CONTROL BOARD IS 'THE
LOWEST CURRENT PRICE QUOTED TO ANY OTHER CUSTOMER,' OR 'TO ANY
PURCHASER, DEALER, AGENT OR AGENCY OF ANY NATURE OR KIND ANYWHERE IN
THE UNITED STATES OF AMERICA.'"  THE SAME WITNESS LATER ADDED THAT "AS
PART AND PARCEL OF THE OFFERINGS OF THEIR PRODUCTS IN, FOR EXAMPLE, THE
STATE OF PENNSYLVANIA, THEY WARRANT THAT 'IF AND WHEN SPECIAL CASH OR
COMMODITY ALLOWANCES, POST-OFFS OR DISCOUNTS ARE OFFERED TO PURCHASERS
IN ANY OTHER STATE OR THE DISTRICT OF COLUMBIA, THE SAME' SHALL ALSO BE
OFFERED THE PENNSYLVANIA LIQUOR CONTROL BOARD." 

THE CHAIRMAN OF THE COMMISSION TESTIFIED AT A PUBLIC HEARING BEFORE A
JOINT LEGISLATIVE COMMITTEE THAT "WE HAVE, FOR EXAMPLE, THE STATE OF
PENNSYLVANIA WHICH IS THE LARGEST PURCHASER OF LIQUOR IN THE WORLD.  I
THINK THEY PURCHASE ALMOST $400,000,000 WORTH OF LIQUOR A YEAR - ONE
CUSTOMER.  THEY SWING A VERY BIG BIT OF LEVERAGE, AND YOU CANNOT BE
CONVINCED THAT THAT PENNSYLVANIA CUSTOMER DOES NOT INSIST ON THE LOWEST
PRICE THAT THE DISTILLER OFFERS ANYWHERE IN THE COUNTRY  ...  .  THE
STATE OF PENNSYLVANIA HAS A CONTRACT WHICH PERMITS THEM TO SEND
ACCOUNTANTS INTO ANY SUPPLIER'S OFFICE - AND THEY DO.  THEY SEND CORPS
OF ACCOUNTANTS INTO SUPPLIERS' OFFICES TO DETERMINE WHETHER OR NOT
THEY'RE GETTING THE BEST PRICE.  AND IN FACT, IF THEY WERE NOT, THEY
WOULD HAVE A VIOLATION OF CONTRACT  ...  ."    IN THE MONOPOLY STATES,
OF COURSE, NO SALES TO RETAILERS BY PRIVATE WHOLESALERS TAKE PLACE. 
THUS, BRAND OWNERS DEALING WITH THOSE STATES ARE NOT PLACED IN THE
POSITION OF VOUCHING FOR SALES TO RETAILERS BY WHOLESALERS OCCUPYING A
"RELATED PERSON" STATUS. 

FN15  CF. WISCONSIN V. TEXACO, 14 WIS. 2D 625, 630-631, 111 N.W.2D
918, 921; SAFEWAY STORES V. OKLAHOMA RETAIL GROCERS ASSN., 360 U.S.
334, 342, N. 7. 

FN16  SECTIONS 101-B-3(A) AND (B) OF THE ABC LAW, AS AMENDED BY SEC.
7 OF CHAPTER 531, PROVIDE:  "  ...  SUCH BRAND OF LIQUOR  ...  SHALL
NOT BE SOLD TO WHOLESALERS ("RETAILERS" IN SEC. 101-B-3(B)) EXCEPT AT
THE PRICE AND DISCOUNTS THEN IN EFFECT UNLESS PRIOR WRITTEN PERMISSION
OF THE AUTHORITY IS GRANTED FOR GOOD CAUSE SHOWN AND FOR REASONS NOT
INCONSISTENT WITH THE PURPOSE OF THIS CHAPTER  ... ." 

FN17  SEE STATE BOARD OF EQUALIZATION V. YOUNG'S MARKET CO., 299 U.S.
59; MAHONEY V. JOSEPH TRINER CORP., 304 U.S. 401; INDIANAPOLIS BREWING
CO. V. LIQUOR COMM'N, 305 U.S. 391; JOSEPH S. FINCH & CO. V.
MCKITTRICK, 305 U.S. 395; ZIFFRIN, INC. V. REEVES, 308 U.S. 132;
CALIFORNIA V. WASHINGTON, 358 U.S. 64. 

FN18  THE INTENT OF THE LEGISLATURE IN ENACTING SEC 9 IS EXPRESSED IN
SEC 8 OF CHAPTER 531: 

"  ...  IN ORDER TO FORESTALL POSSIBLE MONOPOLISTIC AND ANTI
COMPETITIVE PRACTICES DESIGNED TO FRUSTRATE THE ELIMINATION OF  ...
DISCRIMINATION AND DISADVANTAGE TO CONSUMERS, IT IS HEREBY FURTHER
DECLARED THAT THE SALE OF LIQUOR SHOULD BE SUBJECTED TO CERTAIN FURTHER
RESTRICTIONS, PROHIBITIONS AND REGULATIONS, AND THE NECESSITY FOR THE
ENACTMENT OF THE PROVISIONS OF SECTION NINE OF THIS ACT IS, THEREFORE,
DECLARED AS A MATTER OF LEGISLATIVE DETERMINATION." 

THE PRECEDING PORTION OF SEC 8 STATES THE INTENT OF THE LEGISLATURE
IN ENACTING SEC 11 OF CHAPTER 531, WHICH REPEALED SEC 101-C, THE
MANDATORY RESALE PRICE MAINTENANCE PROVISION.  SEE APPENDIX, INFRA, P.
54. 

FN19  WE ALSO FIND WITHOUT MERIT THE APPELLANTS' OBJECTION THAT THE
PRICE COMPUTATION PROVISION, SEC. 101-B-3(I), SWEEPS TOO BROADLY.  THAT
PROVISION WAS INTENDED TO CIRCUMVENT THE ESTABLISHED INDUSTRY PRACTICE
OF INTERPRETING "PRICE" AS "INVOICE PRICE" RATHER THAN THE AMOUNT
ACTUALLY REALIZED BY THE SELLER ON THE TRANSACTION.  THERE IS NO
INDICATION IN THE RECORD THAT SEC. 101-B-3(I) AS APPLIED WILL REQUIRE
THE REFLECTION IN NEW YORK OF EVERY IDIOSYNCRATIC PRICE FLUCTUATION
ELSEWHERE IN THE UNITED STATES THAT HAPPENS TO PRODUCE A "LOWEST
PRICE." 

FN20  SECTION 101-B-4 OF THE ABC LAW AUTHORIZES THE STATE LIQUOR
AUTHORITY TO PROMULGATE RULES TO CARRY OUT THE PURPOSE OF SEC 101-B. 

FN21  THE VICE-PRESIDENT OF JOSEPH E. SEAGRAM & SONS, INC., ONE OF
THE LARGEST NATIONAL DISTILLERS, TESTIFIED THAT "OF THE 330 WHOLESALERS
SELLING SEAGRAM THROUGHOUT THE COUNTRY, SIXTEEN DO 75 PER CENT OR MORE
OF THEIR BUSINESS IN THE SALE OF OUR BRANDS.  SIXTY-ONE DO
APPROXIMATELY 60 TO 75 PER CENT IN THE SALE OF THESE BRANDS; SEVENTY
THREE DO 40 TO 60 PER CENT; SEVENTY-NINE, 20 TO 40 PER CENT; SIXTY
FOUR, 5 TO 20 PER CENT; THIRTY-SEVEN, 1 TO 5 PER CENT." 

FN22  SEE BORREGARD & GLUSKER, THE DISTILLED SPIRITS INDUSTRY:  A
MARKETING SURVEY 65-104, 133-163 (YALE LAW SCHOOL 1950); OXENFELDT,
"WHISKY PRICES," INDUSTRIAL PRICING AND MARKET PRACTICES 445, 477, 483
486 (1951). 

FN23  THE NEW YORK FAIR TRADE STATUTE IS THE FELD-CRAWFORD ACT, LAWS
1940, C. 195, SEC. 3, AS AMENDED, GENERAL BUSINESS LAW, SECS 369-A-E.
SEE NATIONAL DISTILLERS CORP. V. SEYOPP CORP., 17 N.Y.2D 12, 214 N.E.2D
361; NATIONAL DISTILLERS CORP. V. R.H. MACY & CO., 23 APP. DIV. 2D 51,
258 N.Y.S.2D 298; FLEISCHMANN DISTILLING CORP. V. R.H. MACY & CO., 24
APP. DIV. 2D 977, 265 N.Y.S.2D 384; VICTOR FISCHEL & CO. V. R.H. MACY &
CO., N.Y. SUP.  CT., 154 N.Y.L.J. NO. 95, P. 17 (NOV. 17, 1965). 

FN24  WHERE THE MANUFACTURER IS ALSO THE SELLER, THIS PROVISION IS
INAPPLICABLE.  SEE ALCOHOLIC BEVERAGE CONTROL LAW, APPENDIX, RULE 16 OF
THE STATE LIQUOR AUTHORITY SEC. 65.6(B)(3)(1965 SUPP.), 9 NYCRR
65.6(B)(3). 

                        APPENDIX TO OPINION OF THE COURT. 

                   CHAPTER 531, 1964 SESSION LAWS OF NEW YORK. 

     *         *    *         *         * 

SEC. 7.  SECTION ONE HUNDRED ONE-B OF SUCH LAW, AS ADDED BY CHAPTER
EIGHT HUNDRED NINETY-NINE OF THE LAWS OF NINETEEN HUNDRED FORTY-TWO,
SUBDIVISION FOUR THEREOF HAVING BEEN AMENDED BY CHAPTER FIVE HUNDRED
FIFTY-ONE OF THE LAWS OF NINETEEN HUNDRED FORTY-EIGHT, IS HEREBY
AMENDED TO READ AS FOLLOWS:

SEC. 101-B.  UNLAWFUL DISCRIMINATIONS PROHIBITED; FILING OF
SCHEDULES; SCHEDULE LISTING FUND. 

     *      *         *         *         * 

3.  (A)  NO BRAND OF LIQUOR OR WINE SHALL BE SOLD TO OR PURCHASED BY
A WHOLESALER, IRRESPECTIVE OF THE PLACE OF SALE OR DELIVERY, UNLESS A
SCHEDULE, AS PROVIDED BY THIS SECTION, IS FILED WITH THE LIQUOR
AUTHORITY, AND IS THEN IN EFFECT.  SUCH SCHEDULE SHALL BE IN WRITING
DULY VERIFIED, AND FILED IN THE NUMBER OF COPIES AND FORM AS REQUIRED
BY THE AUTHORITY, AND SHALL CONTAIN, WITH RESPECT TO EACH ITEM, THE
EXACT BRAND OR TRADE NAME, CAPACITY OF PACKAGE, NATURE OF CONTENTS, AGE
AND PROOF WHERE STATED ON THE LABEL, THE NUMBER OF BOTTLES CONTAINED IN
EACH CASE, THE BOTTLE AND CASE PRICE TO WHOLESALERS, THE NET BOTTLE AND
CASE PRICE PAID BY THE SELLER, WHICH PRICES, IN EACH INSTANCE, SHALL BE
INDIVIDUAL FOR EACH ITEM AND NOT IN "COMBINATION" WITH ANY OTHER ITEM,
THE DISCOUNTS FOR QUANTITY, IF ANY, AND THE DISCOUNTS FOR TIME OF
PAYMENT, IF ANY.  SUCH BRAND OF LIQUOR OR WINE SHALL NOT BE SOLD TO
WHOLESALERS EXCEPT AT THE PRICE AND DISCOUNTS THEN IN EFFECT UNLESS
PRIOR WRITTEN PERMISSION OF THE AUTHORITY IS GRANTED FOR GOOD CAUSE
SHOWN AND FOR REASONS NOT INCONSISTENT WITH THE PURPOSE OF THIS
CHAPTER.  SUCH SCHEDULE SHALL BE FILED BY (1) THE OWNER OF SUCH BRAND,
OR (2) A WHOLESALER SELLING SUCH BRAND AND WHO IS DESIGNATED AS AGENT
FOR THE PURPOSE OF FILING SUCH SCHEDULE IF THE OWNER OF THE BRAND IS
NOT LICENSED BY THE AUTHORITY, OR (3) WITH THE APPROVAL OF THE
AUTHORITY, BY A WHOLESALER, IN THE EVENT THAT THE OWNER OF THE BRAND IS
UNABLE TO FILE A SCHEDULE OR DESIGNATE AN AGENT FOR SUCH PURPOSE. 

(B)  NO BRAND OF LIQUOR OR WINE SHALL BE SOLD TO OR PURCHASED BY A
RETAILER UNLESS A SCHEDULE, AS PROVIDED BY THIS SECTION, IS FILED WITH
THE LIQUOR AUTHORITY, AND IS THEN IN EFFECT.  SUCH SCHEDULE SHALL BE IN
WRITING DULY VERIFIED, AND FILED IN THE NUMBER OF COPIES AND FORM AS
REQUIRED BY THE AUTHORITY, AND SHALL CONTAIN, WITH RESPECT TO EACH
ITEM, THE EXACT BRAND OR TRADE NAME, CAPACITY OF PACKAGE, NATURE OF
CONTENTS, AGE AND PROOF WHERE STATED ON THE LABEL, THE NUMBER OF
BOTTLES CONTAINED IN EACH CASE, THE BOTTLE AND CASE PRICE TO RETAILERS,
THE NET BOTTLE AND CASE PRICE PAID BY THE SELLER, WHICH PRICES, IN EACH
INSTANCE, SHALL BE INDIVIDUAL FOR EACH ITEM AND NOT IN "COMBINATION"
WITH ANY OTHER ITEM, THE DISCOUNTS FOR QUANTITY, IF ANY, AND THE
DISCOUNTS FOR TIME OF PAYMENT, IF ANY.  SUCH BRAND OF LIQUOR OR WINE
SHALL NOT BE SOLD TO RETAILERS EXCEPT AT THE PRICE AND DISCOUNTS THEN
IN EFFECT UNLESS PRIOR WRITTEN PERMISSION OF THE AUTHORITY IS GRANTED
FOR GOOD CAUSE SHOWN AND FOR REASONS NOT INCONSISTENT WITH THE PURPOSE
OF THIS CHAPTER.  SUCH SCHEDULE SHALL BE FILED BY EACH MANUFACTURER
SELLING SUCH BRAND TO RETAILERS AND BY EACH WHOLESALER SELLING SUCH
BRAND TO RETAILERS. 

(C)  PROVIDED HOWEVER, NOTHING CONTAINED IN THIS SECTION SHALL
REQUIRE ANY MANUFACTURER OR WHOLESALER TO LIST IN ANY SCHEDULE TO BE
FILED PURSUANT TO THIS SECTION ANY ITEM OFFERED FOR SALE TO A RETAILER
UNDER A BRAND WHICH IS OWNED EXCLUSIVELY BY ONE RETAILER AND SOLD AT
RETAIL WITHIN THE STATE EXCLUSIVELY BY SUCH RETAILER. 

   *         *         *         *         * 

SEC 8.  IN ENACTING SECTION ELEVEN OF THIS ACT, IT IS THE FIRM
INTENTION OF THE LEGISLATURE (A) THAT FUNDAMENTAL PRINCIPLES OF PRICE
COMPETITION SHOULD PREVAIL IN THE MANUFACTURE, SALE AND DISTRIBUTION OF
LIQUOR IN THIS STATE, (B) THAT CONSUMERS OF ALCOHOLIC BEVERAGES IN THIS
STATE SHOULD NOT BE DISCRIMINATED AGAINST OR DISADVANTAGED BY PAYING
UNJUSTIFIABLY HIGHER PRICES FOR BRANDS OF LIQUOR THAN ARE PAID BY
CONSUMERS IN OTHER STATES, AND THAT PRICE DISCRIMINATION AND FAVORITISM
ARE CONTRARY TO THE BEST INTERESTS AND WELFARE OF THE PEOPLE OF THIS
STATE, AND (C) THAT ENACTMENT OF SECTION ELEVEN OF THIS ACT WILL
PROVIDE A BASIS FOR ELIMINATING SUCH DISCRIMINATION AGAINST AND
DISADVANTAGE OF CONSUMERS IN THIS STATE.  IN ORDER TO FORESTALL
POSSIBLE MONOPOLISTIC AND ANTI-COMPETITIVE PRACTICES DESIGNED TO
FRUSTRATE THE ELIMINATION OF SUCH DISCRIMINATION AND DISADVANTAGE, IT
IS HEREBY FURTHER DECLARED THAT THE SALE OF LIQUOR SHOULD BE SUBJECTED
TO CERTAIN FURTHER RESTRICTIONS, PROHIBITIONS AND REGULATIONS, AND THE
NECESSITY FOR THE ENACTMENT OF THE PROVISIONS OF SECTION NINE OF THIS
ACT IS, THEREFORE, DECLARED AS A MATTER OF LEGISLATIVE DETERMINATION. 

SEC 9.  SUBDIVISION THREE OF SECTION ONE HUNDRED ONE-B OF SUCH LAW,
AS AMENDED BY SECTION SEVEN OF THIS ACT, IS HEREBY AMENDED TO ADD EIGHT
NEW PARAGRAPHS, TO BE PARAGRAPHS (D), (E), (F), (G), (H), (I), (J) AND
(K), TO READ AS FOLLOWS: 

(D)  THERE SHALL BE FILED IN CONNECTION WITH AND WHEN FILED SHALL BE
DEEMED PART OF THE SCHEDULE FILED FOR A BRAND OF LIQUOR PURSUANT TO
PARAGRAPH (A) OF THIS SUBDIVISION AN AFFIRMATION DULY VERIFIED BY THE
OWNER OF SUCH BRAND OF LIQUOR, OR BY THE WHOLESALER DESIGNATED AS AGENT
FOR THE PURPOSE OF FILING SUCH SCHEDULE IF THE OWNER OF THE BRAND OF
LIQUOR IS NOT LICENSED BY THE AUTHORITY, THAT THE BOTTLE AND CASE PRICE
OF LIQUOR TO WHOLESALERS SET FORTH IN SUCH SCHEDULE IS NO HIGHER THAN
THE LOWEST PRICE AT WHICH SUCH ITEM OF LIQUOR WAS SOLD BY SUCH BRAND
OWNER OR SUCH WHOLESALER DESIGNATED AS AGENT, OR ANY RELATED PERSON, TO
ANY WHOLESALER ANYWHERE IN ANY OTHER STATE OF THE UNITED STATES OR IN
THE DISTRICT OF COLUMBIA, OR TO ANY STATE (OR STATE AGENCY) WHICH OWNS
AND OPERATES RETAIL LIQUOR STORES, AT ANY TIME DURING THE CALENDAR
MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH SUCH SCHEDULE IS FILED. 
AS USED IN THIS PARAGRAPH (D), THE TERM "RELATED PERSON" SHALL MEAN ANY
PERSON (1) IN THE BUSINESS OF WHICH SUCH BRAND OWNER OR WHOLESALER
DESIGNATED AS AGENT HAS AN INTEREST, DIRECT OR INDIRECT, BY STOCK OR
OTHER SECURITY OWNERSHIP, AS LENDER OR LIENOR, OR BY INTERLOCKING
DIRECTORS OR OFFICERS, OR (2) THE EXCLUSIVE, PRINCIPAL OR SUBSTANTIAL
BUSINESS OF WHICH IS THE SALE OF A BRAND OR BRANDS OF LIQUOR PURCHASED
FROM SUCH BRAND OWNER OR WHOLESALER DESIGNATED AS AGENT, OR (3) WHICH
HAS AN EXCLUSIVE FRANCHISE OR CONTRACT TO SELL SUCH BRAND OR BRANDS. 

(E)  THERE SHALL BE FILED IN CONNECTION WITH AND WHEN FILED SHALL BE
DEEMED PART OF ANY OTHER SCHEDULE FILED FOR A BRAND OF LIQUOR PURSUANT
TO PARAGRAPH (A) OF THIS SUBDIVISION AN AFFIRMATION DULY VERIFIED BY
THE PERSON FILING SUCH SCHEDULE THAT THE BOTTLE AND CASE PRICE OF
LIQUOR TO WHOLESALERS SET FORTH IN SUCH SCHEDULE IS NO HIGHER THAN THE
LOWEST PRICE AT WHICH SUCH ITEM OF LIQUOR WAS SOLD BY SUCH PERSON TO
ANY WHOLESALER ANYWHERE IN ANY OTHER STATE OF THE UNITED STATES OR IN
THE DISTRICT OF COLUMBIA, OR TO ANY STATE (OR STATE AGENCY) WHICH OWNS
AND OPERATES RETAIL LIQUOR STORES, AT ANY TIME DURING THE CALENDAR
MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH SUCH SCHEDULE IS FILED. 

(F)  THERE SHALL BE FILED IN CONNECTION WITH AND WHEN FILED SHALL BE
DEEMED PART OF ANY SCHEDULE FILED FOR A BRAND OF LIQUOR PURSUANT TO
PARAGRAPH (B) OF THIS SUBDIVISION BY THE OWNER OF SUCH BRAND OF LIQUOR,
OR BY THE WHOLESALER DESIGNATED AS AGENT FOR THE PURPOSE OF FILING SUCH
SCHEDULE IF THE OWNER OF THE BRAND OF LIQUOR IS NOT LICENSED BY THE
AUTHORITY, OR BY A RELATED PERSON, AN AFFIRMATION DULY VERIFIED BY SUCH
BRAND OWNER OR SUCH WHOLESALER DESIGNATED AS AGENT THAT THE BOTTLE AND
CASE PRICE OF LIQUOR TO RETAILERS SET FORTH IN SUCH SCHEDULE IS NO
HIGHER THAN THE LOWEST PRICE AT WHICH SUCH ITEM OF LIQUOR WAS SOLD BY
SUCH BRAND OWNER OR SUCH WHOLESALER DESIGNATED AS AGENT, OR ANY RELATED
PERSON, TO ANY RETAILER ANYWHERE IN ANY OTHER STATE OF THE UNITED
STATES OR IN THE DISTRICT OF COLUMBIA, OTHER THAN TO ANY STATE (OR
STATE AGENCY) WHICH OWNS AND OPERATES RETAIL LIQUOR STORES, AT ANY TIME
DURING THE CALENDAR MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH SUCH
SCHEDULE IS FILED.  AS USED IN THIS PARAGRAPH (F), THE TERM "RELATED
PERSON" SHALL MEAN ANY PERSON (1) IN THE BUSINESS OF WHICH SUCH BRAND
OWNER OR WHOLESALER DESIGNATED AS AGENT HAS AN INTEREST, DIRECT OR
INDIRECT, BY STOCK OR OTHER SECURITY OWNERSHIP, AS LENDER OR LIENOR, OR
BY INTERLOCKING DIRECTORS OR OFFICERS, OR (2) THE EXCLUSIVE, PRINCIPAL
OR SUBSTANTIAL BUSINESS OF WHICH IS THE SALE OF A BRAND OR BRANDS OF
LIQUOR PURCHASED FROM SUCH BRAND OWNER OR WHOLESALER DESIGNATED AS
AGENT, OR (3) WHO HAS AN EXCLUSIVE FRANCHISE OR CONTRACT TO SELL SUCH
BRAND OR BRANDS. 

(G)  THERE SHALL BE FILED IN CONNECTION WITH AND WHEN FILED SHALL BE
DEEMED PART OF ANY OTHER SCHEDULE FILED FOR A BRAND OF LIQUOR PURSUANT
TO PARAGRAPH (B) OF THIS SUBDIVISION AN AFFIRMATION DULY VERIFIED BY
THE PERSON FILING SUCH SCHEDULE THAT THE BOTTLE AND CASE PRICE OF
LIQUOR TO RETAILERS SET FORTH IN SUCH SCHEDULE IS NO HIGHER THAN THE
LOWEST PRICE AT WHICH SUCH ITEM OF LIQUOR WAS SOLD BY SUCH PERSON TO
ANY RETAILER ANYWHERE IN ANY OTHER STATE OF THE UNITED STATES OR IN THE
DISTRICT OF COLUMBIA, OTHER THAN TO ANY STATE (OR STATE AGENCY) WHICH
OWNS AND OPERATES RETAIL LIQUOR STORES, AT ANY TIME DURING THE CALENDAR
MONTH PRECEDING THE MONTH IN WHICH SUCH SCHEDULE IS FILED. 

(H)  IN THE EVENT AN AFFIRMATION WITH RESPECT TO ANY ITEM OF LIQUOR
IS NOT FILED WITHIN THE TIME PROVIDED BY THIS SECTION, ANY SCHEDULE FOR
WHICH SUCH AFFIRMATION IS REQUIRED SHALL BE DEEMED INVALID WITH RESPECT
TO SUCH ITEM OF LIQUOR, AND NO SUCH ITEM MAY BE SOLD TO OR PURCHASED BY
ANY WHOLESALER OR RETAILER DURING THE PERIOD COVERED BY ANY SUCH
SCHEDULE.    (I)  IN DETERMINING THE LOWEST PRICE FOR WHICH ANY ITEM OF
LIQUOR WAS SOLD IN ANY OTHER STATE OR IN THE DISTRICT OF COLUMBIA, OR
TO ANY STATE (OR STATE AGENCY) WHICH OWNS AND OPERATES RETAIL LIQUOR
STORES, APPROPRIATE REDUCTIONS SHALL BE MADE TO REFLECT ALL DISCOUNTS
IN EXCESS OF THOSE TO BE IN EFFECT UNDER SUCH SCHEDULE, AND ALL
REBATES, FREE GOODS, ALLOWANCES AND OTHER INDUCEMENTS OF ANY KIND
WHATSOEVER OFFERED OR GIVEN TO ANY SUCH WHOLESALER, STATE (OR STATE
AGENCY) OR RETAILER, AS THE CASE MAY BE, PURCHASING SUCH ITEM IN SUCH
OTHER STATE OR IN THE DISTRICT OF COLUMBIA; PROVIDED THAT NOTHING
CONTAINED IN PARAGRAPHS (D), (E), (F) AND (G) OF THIS SUBDIVISION SHALL
PREVENT DIFFERENTIALS IN PRICE WHICH MAKE ONLY DUE ALLOWANCE FOR
DIFFERENCES IN STATE TAXES AND FEES, AND IN THE ACTUAL COST OF
DELIVERY.  AS USED IN THIS PARAGRAPH, THE TERM "STATE TAXES OR FEES"
SHALL MEAN THE EXCISE TAXES IMPOSED OR THE FEES REQUIRED BY ANY STATE
OR THE DISTRICT OF COLUMBIA UPON OR BASED UPON THE GALLON OF LIQUOR,
AND THE TERM "GALLON" SHALL MEAN ONE HUNDRED TWENTY-EIGHT FLUID
OUNCES. 

(J)  NOTWITHSTANDING AND IN LIEU OF ANY OTHER PENALTY PROVIDED IN ANY
OTHER PROVISIONS OF THIS CHAPTER, ANY PERSON WHO MAKES A FALSE
STATEMENT IN ANY AFFIRMATION MADE AND FILED PURSUANT TO PARAGRAPH (D),
(E), (F) OR (G) OF THIS SUBDIVISION SHALL BE GUILTY OF A MISDEMEANOR,
AND UPON CONVICTION THEREOF SHALL BE PUNISHABLE BY A FINE OF NOT MORE
THAN TEN THOUSAND DOLLARS OR BY IMPRISONMENT IN A COUNTY JAIL OR
PENITENTIARY FOR A TERM OF NOT MORE THAN SIX MONTHS OR BY BOTH SUCH
FINE AND IMPRISONMENT.  EVERY AFFIRMATION MADE AND FILED PURSUANT TO
PARAGRAPH (D), (E), (F) OR (G) OF THIS SUBDIVISION SHALL BE DEEMED TO
HAVE BEEN MADE IN EVERY COUNTY IN THIS STATE IN WHICH THE BRAND OF
LIQUOR IS OFFERED FOR SALE UNDER THE TERMS OF SAID SCHEDULE.  THE
ATTORNEY GENERAL OR ANY DISTRICT ATTORNEY MAY PROSECUTE ANY PERSON
CHARGED WITH THE COMMISSION OF A VIOLATION OF THIS PARAGRAPH.  IN ANY
SUCH PROSECUTION BY THE ATTORNEY GENERAL, HE MAY APPEAR IN PERSON OR BY
HIS DEPUTY OR ASSISTANT BEFORE ANY COURT OR ANY GRAND JURY AND EXERCISE
ALL THE POWERS AND PERFORM ALL THE DUTIES IN RESPECT OF ANY SUCH
PROCEEDING WHICH THE DISTRICT ATTORNEY WOULD OTHERWISE BE AUTHORIZED OR
REQUIRED TO EXERCISE OR PERFORM, AND IN SUCH PROSECUTION THE DISTRICT
ATTORNEY SHALL ONLY EXERCISE SUCH POWERS AND PERFORM SUCH DUTIES AS ARE
REQUIRED OF HIM BY THE ATTORNEY GENERAL OR HIS DEPUTY OR ASSISTANT SO
ATTENDING. 

(K)  UPON FINAL JUDGMENT OF CONVICTION OF ANY PERSON AFTER APPEAL, OR
IN THE EVENT NO APPEAL IS TAKEN, UPON THE EXPIRATION OF THE TIME DURING
WHICH AN APPEAL COULD HAVE BEEN TAKEN, THE LIQUOR AUTHORITY MAY REFUSE
TO ACCEPT FOR ANY PERIOD OF MONTHS NOT EXCEEDING THREE CALENDAR MONTHS
ANY AFFIRMATION REQUIRED TO BE FILED BY SUCH PERSON. 
..END :









COLLIER V. UNITED STATES 384 U.S. 59 


NO. 695.  ARGUED MARCH 24, 1966.  - DECIDED APRIL 19, 1966.  - REVERSED
AND REMANDED. 


NINE DAYS AFTER PETITIONER WAS FOUND GUILTY BY A JURY AND A FORMAL
JUDGMENT WAS ENTERED AGAINST HIM, HIS COUNSEL FILED A NEW TRIAL MOTION
BASED ON ALLEGED TRIAL ERRORS.  THE DISTRICT COURT DENIED THE MOTION
WHICH WAS UNTIMELY UNDER FED. RULE CRIM. PROC. 33.  SEVEN DAYS
THEREAFTER AND 19 DAYS AFTER JUDGMENT, COUNSEL FILED A NOTICE OF APPEAL
FROM THE CONVICTION.  THE COURT OF APPEALS DISMISSED THE APPEAL AS
UNTIMELY UNDER RULE 37(A)(2), WHICH PROVIDES THAT AN APPEAL MAY BE
TAKEN "WITHIN 10 DAYS AFTER ENTRY OF THE JUDGMENT OR ORDER APPEALED
FROM, BUT IF A MOTION FOR A NEW TRIAL OR IN ARREST OF JUDGMENT HAS BEEN
MADE WITHIN THE 10-DAY PERIOD AN APPEAL FROM A JUDGMENT OF CONVICTION
MAY BE TAKEN WITHIN 10 DAYS AFTER ENTRY OF THE ORDER DENYING THE
MOTION."  HELD:  THE TIME WITHIN WHICH TO TAKE AN APPEAL UNDER FED.
RULE CRIM. PROC. 37(A)(2) IS ENLARGED BY A MOTION FOR A NEW TRIAL WHICH
IS FILED WITHIN THE 10-DAY PERIOD PROVIDED THEREIN ALBEIT NOT TIMELY
UNDER RULE 33. 

COLLIER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

ON MARCH 24, 1965, A JURY IN A FEDERAL DISTRICT COURT FOUND
PETITIONER GUILTY OF VIOLATING THE MANN ACT, 18 U.S.C. SEC 2421 (1964
ED.), AND A FORMAL JUDGMENT WAS ENTERED AGAINST HIM ON THE SAME DAY. 
NINE DAYS LATER, ON APRIL 2, 1965, A NEW TRIAL MOTION WAS FILED BY
PETITIONER'S COUNSEL ALLEGING VARIOUS ERRORS AT TRIAL.  SINCE FED. RULE
CRIM. PROC. 33 EXPRESSLY REQUIRES THAT A NEW TRIAL MOTION NOT BASED ON
NEWLY DISCOVERED EVIDENCE BE FILED WITHIN FIVE DAYS OF THE VERDICT,
PETITIONER'S MOTION WAS UNTIMELY AND THE DISTRICT COURT DENIED IT ON
APRIL 5, 1965.  ON APRIL 12, 1965, SEVEN DAYS AFTER THE DENIAL OF THE
MOTION AND 19 DAYS AFTER THE JUDGMENT, PETITIONER THROUGH COUNSEL FILED
A NOTICE OF APPEAL FROM HIS CONVICTION.  THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT DISMISSED THE APPEAL AS UNTIMELY, A RULING IN ACCORD WITH
THE VIEWS OF SEVERAL OTHER CIRCUITS BUT IN CONFLICT WITH THOSE OF THE
TENTH CIRCUIT.  COMPARE, E.G., UNITED STATES V. BERTONE, 249 F.2D 156
(C.A. 3D CIR.), WITH SMITH V. UNITED STATES, 273 F.2D 462 (C.A. 10TH
CIR.).  TREATING PETITIONER'S PETITION FOR MANDAMUS AS ONE FOR A WRIT
OF CERTIORARI, WE GRANTED CERTIORARI, 382 U.S. 890, TO CONSIDER THE
TIMELINESS QUESTION, LEFT OPEN IN LOTT V. UNITED STATES, 367 U.S. 421,
425.  WE REVERSE THE COURT OF APPEALS AND REMAND THE CASE TO ALLOW
PETITIONER'S APPEAL TO BE HEARD. 

FEDERAL RULE OF CRIMINAL PROCEDURE 37(A)(2), ENTITLED "TIME FOR
TAKING APPEAL," PROVIDES IN RELEVANT PART THAT "AN APPEAL BY A
DEFENDANT MAY BE TAKEN WITHIN 10 DAYS AFTER ENTRY OF THE JUDGMENT OR
ORDER APPEALED FROM, BUT IF A MOTION FOR A NEW TRIAL OR IN ARREST OF
JUDGMENT HAS BEEN MADE WITHIN THE 10-DAY PERIOD AN APPEAL FROM A
JUDGMENT OF CONVICTION MAY BE TAKEN WITHIN 10 DAYS AFTER ENTRY OF THE
ORDER DENYING THE MOTION."  PLAINLY PETITIONER'S APPEAL WAS TIMELY IF
THIS RULE IS LITERALLY READ SINCE THE APPEAL WAS FILED WITHIN 10 DAYS
AFTER DENIAL OF A NEW TRIAL MOTION ITSELF FILED WITHIN 10 DAYS OF THE
JUDGMENT OF CONVICTION.  TO THE CONTRARY, THE GOVERNMENT ARGUES THAT A
NEW TRIAL MOTION, NOT BASED ON NEWLY DISCOVERED EVIDENCE, FILED MORE
THAN FIVE DAYS AFTER THE VERDICT AND SO DESTINED TO BE REJECTED AS
UNTIMELY UNDER RULE 33 SHOULD NOT SERVE TO GIVE DEFENDANT AN EXTENSION
OF TIME TO APPEAL SINCE THERE IS NO POSSIBILITY THE APPEAL WILL BE
AVOIDED BY A GRANT OF THE MOTION.  FURTHER SUPPORT IS FOUND BY THE
GOVERNMENT IN A NUMBER OF COURTS OF APPEALS' DECISIONS ADOPTING THIS
VIEW, IN THE HISTORY OF RULE 37(A)(2), AND IN A VERY RECENT AMENDMENT
TO THAT RULE WHICH PLAINLY ADOPTS THE GOVERNMENT'S BASIC APPROACH FOR
THE FUTURE.* 

*THE AMENDMENT, APPROVED BY THE COURT ON FEBRUARY 28, 1966, AND
ABSENT DISAPPROVAL BY CONGRESS EFFECTIVE ON JULY 1, 1966, PERTINENTLY
PROVIDES:  "IF A TIMELY MOTION IN ARREST OF JUDGMENT OR FOR A NEW TRIAL
ON ANY GROUND OTHER THAN NEWLY DISCOVERED EVIDENCE HAS BEEN MADE, AN
APPEAL FROM A JUDGMENT OF CONVICTION MAY BE TAKEN WITHIN 10 DAYS AFTER
THE ENTRY OF THE ORDER DENYING THE MOTION."   THUS THE EFFECT OF THE
AMENDMENT IS TO EMBRACE PROSPECTIVELY THE GOVERNMENT'S VIEW OF THE
INTERRELATIONSHIP BETWEEN RULES 33 AND 37(A)(2).  A CONTEMPORANEOUS
AMENDMENT TO RULE 33 WOULD EXTEND THE TIME FOR FILING A NEW TRIAL
MOTION FROM FIVE TO SEVEN DAYS. 

WE BELIEVE COMPETING INTERESTS OUTWEIGH THE GOVERNMENT'S ARGUMENTS. 
THE LITERAL LANGUAGE OF RULE 37(A)(2) SUSTAINS PETITIONER AND EVEN A
PERCEPTIVE READING OF RULES 33 AND 37(A)(2) TOGETHER WOULD NOT DISPEL
ALL DOUBT.  A CRIMINAL APPEAL IS AT STAKE AND UNDER FED. RULE CRIM.
PROC. 45(B) THE PERIOD FOR TAKING IT MAY NOT BE EXTENDED, WHILE THE
RARE AND RELATIVELY BRIEF DELAY IN APPEAL ALLOWED BY PETITIONER'S
CONSTRUCTION CAUSES VERY LITTLE INJURY TO THE GOVERNMENT.  IN THESE
CIRCUMSTANCES A READING THAT DEPARTS FROM THE LITERAL TERMS OF RULE
37(A)(2) BY CONSTRICTING THE OPPORTUNITY TO APPEAL SEEMS TO US
INAPPROPRIATE.  BECAUSE OF OUR DISPOSITION WE NEED NOT CONSIDER A
SUGGESTION BY THE GOVERNMENT, APPARENTLY NOT MADE TO OR PASSED ON BY
THE COURT OF APPEALS IN THIS CASE BUT FIRST TENTATIVELY RAISED AFTER
THE GRANT OF CERTIORARI AND ONLY LATER PRESSED UPON US IN ORAL
ARGUMENT, THAT ON THE PRESENT FACTS A MOTION FOR BAIL BOND FILED BY
PETITIONER NINE DAYS AFTER HIS CONVICTION MAY DO UNINTENDED SERVICE AS
A NOTICE OF APPEAL.  REVERSED AND REMANDED. 

MR. JUSTICE BLACK CONCURS IN THE COURT'S JUDGMENT FOR THE REASONS
STATED IN THE OPINION OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN
O'NEAL V. UNITED STATES, 272 F.2D 412. 
..END :

















BROOKHART V. JANIS 384 U.S. 1 


NO. 657.  ARGUED MARCH 21-22, 1966.  - DECIDED APRIL 18, 1966.  - 2 OHIO
ST. 2D 36, 205 N.E.2D 911, REVERSED AND REMANDED. 


PETITIONER, WHO HAD BEEN INDICTED FOR FORGERY AND OTHER OFFENSES,
WAIVED A JURY TRIAL.  THOUGH PETITIONER INSISTED THAT HE WAS "IN NO WAY
...  PLEADING GUILTY," HIS COURT-APPOINTED COUNSEL CONSENTED TO A
"PRIMA FACIE" TRIAL WHICH IS A PROCEDURE - CONCEDED BY THE TRIAL COURT
TO BE THE PRACTICAL EQUIVALENT OF A GUILTY PLEA - WHEREBY THE STATE
MAKES ONLY A PRIMA FACIE SHOWING OF GUILT AND THE DEFENSE DOES NOT
OFFER EVIDENCE OR CROSS-EXAMINE WITNESSES.  AFTER HEARING SOME
EVIDENCE, INCLUDING AN OUT-OF-COURT ALLEGED CONFESSION OF A CO
DEFENDANT, THE TRIAL COURT ADJUDGED PETITIONER GUILTY AND SENTENCED
HIM.  PETITIONER BROUGHT THIS HABEAS CORPUS ACTION IN THE OHIO SUPREME
COURT CLAIMING DENIAL OF HIS RIGHT UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO CONFRONT AND CROSS-EXAMINE WITNESSES.  THAT COURT UPHELD
THE CONVICTION ON THE GROUND THAT PETITIONER HAD KNOWINGLY WAIVED SUCH
RIGHT BY HIS COUNSEL'S CONSENT TO THE PRIMA FACIE TRIAL.  HELD:
PETITIONER'S CONSTITUTIONAL RIGHT TO PLEAD NOT GUILTY AND TO HAVE A
TRIAL WHERE HE COULD CONFRONT AND CROSS-EXAMINE ADVERSARY WITNESSES
COULD NOT BE WAIVED BY HIS COUNSEL WITHOUT PETITIONER'S CONSENT.  PP.
5-8. 

BROOKHART V. JANIS, DIRECTOR OF THE OHIO DEPARTMENT OF MENTAL HYGIENE
AND CORRECTION. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, JAMES BROOKHART, WHILE SERVING THE FIRST OF THREE
CONSECUTIVE SENTENCES OF FROM ONE TO 20 YEARS IMPOSED BY AN OHIO COURT
OF COMMON PLEAS UPON CONVICTIONS OF FORGERY AND UTTERING FORGED
INSTRUMENTS, (FN1) BROUGHT THIS ACTION FOR HABEAS CORPUS IN THE SUPREME
COURT OF OHIO.  THERE IS NO QUESTION RAISED ABOUT THAT COURT'S
JURISDICTION.  PETITIONER CHARGED AND CONTENDS HERE THAT ALL HIS
CONVICTIONS ARE CONSTITUTIONALLY INVALID BECAUSE OBTAINED IN A TRIAL
THAT DENIED HIM HIS FEDERALLY GUARANTEED CONSTITUTIONAL RIGHT TO
CONFRONT THE WITNESSES AGAINST HIM (A) BY PERMITTING THE STATE TO
INTRODUCE AGAINST HIM AN OUT-OF-COURT ALLEGED CONFESSION OF A CO
DEFENDANT, MITCHELL, (FN2) AND (B) BY DENYING HIM THE RIGHT TO CROSS
EXAMINE ANY OF THE STATE'S WITNESSES WHO TESTIFIED AGAINST HIM.  (FN3)
MASTER COMMISSIONERS APPOINTED BY THE STATE SUPREME COURT RECOMMENDED
THAT HABEAS CORPUS BE DENIED.  THEY FOUND THAT "PETITIONER ALTHOUGH HE
DID NOT PLEAD GUILTY AGREED THAT ALL THE STATE HAD TO PROVE WAS A PRIMA
FACIE CASE, THAT HE WOULD NOT CONTEST IT AND THAT THERE WOULD BE NO
CROSS-EXAMINATION OF WITNESSES."  THIS FINDING WAS NOT BASED ON ORAL
TESTIMONY BUT WAS BASED XCLUSIVELY ON AN EXAMINATION OF THE TRANSCRIPT
OF THE PROCEEDINGS IN THE TRIAL COURT IN WHICH PETITIONER WAS
CONVICTED.  THE STATE SUPREME COURT ACCEPTED ITS COMMISSIONERS' VIEW OF
WAIVER, STATING THAT THE TRANSCRIPT OF THE TRIAL SHOWED THAT: 

"IN OPEN COURT, WHILE REPRESENTED BY COUNSEL, PETITIONER AGREED THAT,
ALTHOUGH HE WOULD NOT PLEAD GUILTY, HE WOULD NOT CONTEST THE STATE'S
CASE OR CROSS-EXAMINE ITS WITNESSES BUT WOULD REQUIRE ONLY THAT THE
STATE PROVE EACH OF THE ESSENTIAL ELEMENTS OF THE CRIME."  2 OHIO ST.
2D 36, 40, 205 N.E.2D 911, 914. 

UPON THIS BASIS THE STATE SUPREME COURT REJECTED PETITIONER'S
CONSTITUTIONAL CONTENTIONS AND ORDERED HIM REMANDED TO CUSTODY.  2 OHIO
ST. 2D 36, 205 N.E.2D 911.  WE GRANTED CERTIORARI TO DETERMINE WHETHER
OHIO DENIED PETITIONER'S CONSTITUTIONAL RIGHT TO BE CONFRONTED WITH AND
TO CROSS-EXAMINE THE WITNESSES AGAINST HIM.  382 U.S. 810. 

IN THIS COURT RESPONDENT ADMITS THAT: 

"IF THERE WAS HERE A DENIAL OF CROSS-EXAMINATION WITHOUT WAIVER, IT
WOULD BE CONSTITUTIONAL ERROR OF THE FIRST MAGNITUDE AND NO AMOUNT OF
SHOWING OF WANT OF PREJUDICE WOULD CURE IT." 

THIS CONCESSION IS PROPERLY MADE.  THE SIXTH AMENDMENT PROVIDES THAT:
"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT  ...
TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM  ...  ."  AND IN
POINTER V. TEXAS, 380 U.S. 400, 406, WE HELD THAT THE CONFRONTATION
GUARANTEE OF THE SIXTH AMENDMENT INCLUDING THE RIGHT OF CROSS
EXAMINATION "IS 'TO BE ENFORCED AGAINST THE STATES UNDER THE FOURTEENTH
AMENDMENT ACCORDING TO THE SAME STANDARDS THAT PROTECT THOSE PERSONAL
RIGHTS AGAINST FEDERAL ENCROACHMENT.'  MALLOY V. HOGAN, SUPRA, 378
U.S., AT 10."  SEE ALSO DOUGLAS V. ALABAMA, 380 U.S. 415.  IT FOLLOWS
THAT UNLESS PETITIONER DID ACTUALLY WAIVE HIS RIGHT TO BE CONFRONTED
WITH AND TO CROSS-EXAMINE THESE WITNESSES, HIS FEDERALLY GUARANTEED
CONSTITUTIONAL RIGHTS HAVE BEEN DENIED IN TWO WAYS.  IN THE FIRST PLACE
HE WAS DENIED THE RIGHT TO CROSS-EXAMINE AT ALL ANY WITNESSES WHO
TESTIFIED AGAINST HIM.  IN THE SECOND PLACE THERE WAS INTRODUCED AS
EVIDENCE AGAINST HIM AN ALLEGED CONFESSION, MADE OUT OF COURT BY ONE OF
HIS CO-DEFENDANTS, MITCHELL, WHO DID NOT TESTIFY IN COURT, AND
PETITIONER WAS THEREFORE DENIED ANY OPPORTUNITY WHATEVER TO CONFRONT
AND CROSS-EXAMINE THE WITNESS WHO MADE THIS VERY DAMAGING STATEMENT. 
WE THEREFORE PASS ON TO THE QUESTION OF WAIVER. 

THE QUESTION OF A WAIVER OF A FEDERALLY GUARANTEED CONSTITUTIONAL
RIGHT IS, OF COURSE, A FEDERAL QUESTION CONTROLLED BY FEDERAL LAW. 
THERE IS A PRESUMPTION AGAINST THE WAIVER OF CONSTITUTIONAL RIGHTS,
SEE, E.G., GLASSER V. UNITED STATES, 315 U.S. 60, 70-71, AND FOR A
WAIVER TO BE EFFECTIVE IT MUST BE CLEARLY ESTABLISHED THAT THERE WAS
"AN INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR
PRIVILEGE."  JOHNSON V. ZERBST, 304 U.S. 458, 464. 

IN DECIDING THE FEDERAL QUESTION OF WAIVER RAISED HERE WE MUST, OF
COURSE, LOOK TO THE FACTS WHICH ALLEGEDLY SUPPORT THE WAIVER.  (FN4)
UPON AN EXAMINATION OF THE FACTS SHOWN IN THIS RECORD, WE ARE
COMPLETELY UNABLE TO AGREE WITH THE SUPREME COURT OF OHIO THAT THE
PETITIONER INTELLIGENTLY AND KNOWINGLY WAIVED HIS RIGHT TO CROSS
EXAMINE THE WITNESSES WHOSE TESTIMONY WAS USED TO CONVICT HIM.  THE
TRIAL RECORD SHOWS THE FOLLOWING FACTS:  PETITIONER WAS ARRAIGNED
JANUARY 29, 1962, WITHOUT A LAWYER, AND PLEADED NOT GUILTY TO ALL
CHARGES AGAINST HIM.  TWO DAYS LATER THE COURT APPOINTED COUNSEL TO
REPRESENT HIM.  NOT ABLE TO MAKE BOND, HE REMAINED IN JAIL UNTIL MARCH
23, 1962, AT WHICH TIME HE WAS BROUGHT BEFORE THE JUDGE FOR TRIAL. 
THERE PETITIONER'S APPOINTED COUNSEL TOLD THE JUDGE THAT HIS CLIENT HAD
SIGNED WAIVERS OF TRIAL BY JURY AND WANTED TO BE TRIED BY THE COURT. 
THE JUDGE IN ORDER TO VERIFY THE WAIVERS SHOWED PETITIONER THE TWO
WRITTEN WAIVERS OF TRIAL BY JURY BEARING HIS SIGNATURE AND ASKED HIM IF
THE SIGNATURE WAS HIS.  PETITIONER SAID IT WAS.  THE FOLLOWING COLLOQUY
AMONG THE JUDGE, PETITIONER, AND HIS COUNSEL THEN TOOK PLACE IN OPEN
COURT: 

"MR. ERGAZOS (PETITIONER'S LAWYER):  THAT'S CORRECT, YOUR HONOR. 

"THE COURT:  ANYTHING FURTHER? 

"MR. KANDEL:  NOTHING FURTHER. 

"MR. ERGAZOS:  THE ONLY THING IS, YOUR HONOR, THIS MATTER IS BEFORE
THE COURT ON A PRIMA FACIE CASE. 

"THE COURT:  THERE BEING NO  ...  GOING TO BE NO CROSS-EXAMINATION OF
THE WITNESSES, SO THE COURT WILL KNOW AND THE STATE CAN'T BE TAKEN BY
SUPRISE, THE COURT DOESN'T WANT TO BE FOOLED AND HAVE YOUR CLIENT
CHANGE HIS MIND HALF WAY THROUGH THE TRIAL AND REALLY CONTEST IT, THE
STATE HAS A CONTEST, WE WANT TO KNOW IN FAIRNESS TO THEM SO THEY CAN
PUT ON COMPLETE PROOF. 

"MR. ERGAZOS:  I MIGHT SAY THIS, YOUR HONOR, IF THERE IS ANY
TESTIMONY ADDUCED HERE THIS MORNING WHICH LEAVES ANY QUESTION AS TO
THIS DEFENDANT IN CONNECTION WITH THIS CRIME I WOULD LIKE TO RESERVE
THE RIGHT TO CROSS-EXAMINE AT THAT TIME. 

"THE COURT:  THAT IS RAISING ANOTHER  ...  THAT IS PUTTING THE STATE
ON THE SPOT AND THE COURT ON THE SPOT, I WON'T FIND HIM GUILTY IF THE
EVIDENCE IS SUBSTANTIAL. 

"MR. ERGAZOS:  WE HAVE A JURY QUESTION IN THE COURT, UNDOUBTEDLY
THERE WILL BE  ...  . 

"THE COURT:  ORDINARILY IN A PRIMA FACIE CASE  ...  THE PRIMA FACIE
CASE IS WHERE THE DEFENDANT, NOT TECHNICALLY OR LEGALLY, IN EFFECT
ADMITS HIS GUILT AND WANTS THE STATE TO PROVE IT. 

"MR. ERGAZOS:  THAT IS CORRECT. 

"THE COURT:  AND THE COURT KNOWING THAT AND THE PROSECUTOR KNOWING
THAT, INSTEAD OF HAVING A HALF A DOZEN WITNESS ON ONE POINT THEY ONLY
HAVE ONE BECAUSE THEY UNDERSTAND THERE WILL BE NO CONTEST. 

"A (BROOKHART) I WOULD LIKE TO POINT OUT IN NO WAY AM I PLEADING
GUILTY TO THIS CHARGE. 

"THE COURT:  IF YOU WANT TO STAND TRIAL WE WILL GIVE YOU A JURY
TRIAL. 

"A I HAVE BEEN INCARCERATED NOW FOR THE LAST EIGHTEEN MONTHS IN THE
COUNTY JAIL. 

"THE COURT:  YOU DON'T GET CREDIT FOR THAT. 

"A FOR OVER TWO MONTHS MY NERVES HAVE BEEN  ...  I COULDN'T STAND IT
OUT THERE ANY LONGER, I WOULD LIKE TO BE TRIED BY THIS COURT. 

"THE COURT:  MAKE UP YOUR MIND WHETHER YOU REQUIRE A PRIMA FACIE CASE
OR A COMPLETE TRIAL OF IT. 

"MR. ERGAZOS:  PRIMA FACIE, YOUR HONOR, IS ALL WE ARE INTERESTED IN. 

"THE COURT:  ALL RIGHT." 

FROM THE FOREGOING IT SEEMS CLEAR THAT PETITIONER'S COUNSEL AGREED TO
A PRIMA FACIE TRIAL.  BY AGREEING TO THIS TRUNCATED KIND OF TRIAL - IF
TRIAL IT COULD BE CALLED - WE CAN ASSUME THAT THE LAWYER KNOWINGLY
AGREED THAT THE STATE NEED MAKE ONLY A PRIMA FACIE SHOWING OF GUILT AND
THAT HE WOULD NEITHER OFFER EVIDENCE ON PETITIONER'S BEHALF NOR CROSS
EXAMINE ANY OF THE STATE'S WITNESSES.  THE RECORD SHOWS, HOWEVER, THAT
PETITIONER HIMSELF DID NOT INTELLIGENTLY AND KNOWINGLY AGREE TO BE
TRIED IN A PROCEEDING WHICH WAS THE EQUIVALENT OF A GUILTY PLEA AND IN
WHICH HE WOULD NOT HAVE THE RIGHT TO BE CONFRONTED WITH AND CROSS
EXAMINE THE WITNESSES AGAINST HIM.  HIS DESIRE NOT TO AGREE TO SUCH A
TRIAL IS SHOWN BY THE FACT THAT IMMEDIATELY AFTER THE JUDGE ACCURATELY
STATED THAT IN A PRIMA FACIE CASE THE DEFENDANT "IN EFFECT ADMITS HIS
GUILT," BROOKHART PERSONALLY INTERJECTED HIS STATEMENT THAT "I WOULD
LIKE TO POINT OUT IN NO WAY AM I PLEADING GUILTY TO THIS CHARGE." 
ALTHOUGH HE EXPRESSLY WAIVED HIS RIGHT TO A JURY TRIAL, HE NEVER, AT
ANY TIME, EITHER EXPLICITLY OR IMPLICITLY, PLEADED GUILTY.  HIS
EMPHATIC STATEMENT TO THE JUDGE THAT "IN NO WAY AM I PLEADING GUILTY"
NEGATIVES ANY PURPOSE ON HIS PART TO AGREE TO HAVE HIS CASE TRIED ON
THE BASIS OF THE STATE'S PROVING A PRIMA FACIE CASE WHICH BOTH THE
TRIAL COURT AND THE STATE SUPREME COURT HELD WAS THE PRACTICAL
EQUIVALENT OF A PLEA OF GUILTY.  OUR QUESTION THEREFORE NARROWS DOWN TO
WHETHER COUNSEL HAS POWER TO ENTER A PLEA WHICH IS INCONSISTENT WITH
HIS CLIENT'S EXPRESSED DESIRE AND THEREBY WAIVE HIS CLIENT'S
CONSTITUTIONAL RIGHT TO PLEAD NOT GUILTY AND HAVE A TRIAL IN WHICH HE
CAN CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM.  WE HOLD THAT
THE CONSTITUTIONAL RIGHTS OF A DEFENDANT CANNOT BE WAIVED BY HIS
COUNSEL UNDER SUCH CIRCUMSTANCES.  IT IS TRUE, AS STATED IN HENRY V.
MISSISSIPPI, 379 U.S. 443, 451, THAT COUNSEL MAY, UNDER SOME
CONDITIONS, WHERE THE CIRCUMSTANCES ARE NOT "EXCEPTIONAL, PRECLUDE THE
ACCUSED FROM ASSERTING CONSTITUTIONAL CLAIMS  ...  ."  NOTHING IN
HENRY, HOWEVER, CAN POSSIBLY SUPPORT A CONTENTION THAT COUNSEL FOR
DEFENDANT CAN OVERRIDE HIS CLIENT'S DESIRE EXPRESSED IN OPEN COURT TO
PLEAD NOT GUILTY  (FN5) AND ENTER IN THE NAME OF HIS CLIENT ANOTHER
PLEA - WHATEVER THE LABEL - WHICH WOULD SHUT OFF THE DEFENDANT'S
CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES
AGAINST HIM WHICH HE WOULD HAVE AN OPPORTUNITY TO DO UNDER A PLEA OF
NOT GUILTY.  SINCE WE HOLD THAT PETITIONER NEITHER PERSONALLY WAIVED
HIS RIGHT NOR ACQUIESCED IN HIS LAWYER'S ATTEMPTED WAIVER, THE JUDGMENT
OF THE SUPREME COURT OF OHIO MUST BE AND IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  PETITIONER WAS ALSO CONVICTED IN THE SAME TRIAL OF BREAKING AND
ENTERING AND GRAND LARCENY.  HIS SENTENCES ON THESE CONVICTIONS WERE
MADE TO RUN CONCURRENTLY WITH HIS SENTENCES FOR FORGERY AND UTTERING
FORGED INSTRUMENTS. 

FN2  MITCHELL PLEADED GUILTY AFTER BEING INDICTED WITH PETITIONER,
WAS SENTENCED TO AN OHIO STATE REFORMATORY, AND ALTHOUGH IN THE
REFORMATORY AT THE TIME OF PETITIONER'S TRIAL, WAS NOT CALLED TO
TESTIFY IN PERSON. 

FN3  THE PETITION ALSO CHARGED THAT BROOKHART HAD NOT BEEN GIVEN
ADEQUATE NOTICE OF THE CHARGES UPON WHICH HE WAS TRIED BECAUSE THE
INDICTMENT CHARGING HIM WITH FORGERY AND UTTERING FORGED INSTRUMENTS
WAS AMENDED AT TRIAL.  AND IN THIS COURT PETITIONER ATTACKS HIS
CONVICTIONS ON SEVERAL OTHER CONSTITUTIONAL GROUNDS.  WE FIND IT
UNNECESSARY TO DECIDE ANY OF THE ADDITIONAL CONTENTIONS SET OUT IN THIS
NOTE. 

FN4  WHEN CONSTITUTIONAL RIGHTS TURN ON THE RESOLUTION OF A FACTUAL
DISPUTE WE ARE DUTY BOUND TO MAKE AN INDEPENDENT EXAMINATION OF THE
EVIDENCE IN THE RECORD.  SEE, E.G., EDWARDS V. SOUTH CAROLINA, 372 U.S.
229, 235; BLACKBURN V. ALABAMA, 361 U.S. 199, 205, N. 5. 

FN5  COMPARE RIDEAU V. LOUISIANA, 373 U.S. 723, 726. 

SEPARATE OPINION OF MR. JUSTICE HARLAN. 

I DO NOT FIND THE ISSUE IN THIS CASE AS STRAIGHTFORWARD AS DOES THE
COURT.  IF THE RECORD WERE SUSCEPTIBLE ONLY OF THE READING GIVEN IT BY
THE COURT, I WOULD CONCUR IN THE JUDGMENT.  HOWEVER, FOR ME THIS CASE
PRESENTS PROBLEMS OF TWO SORTS. 

FIRST, THE PRECISE NATURE OF THE "RIGHTS" THAT WERE ALLEGEDLY
"WAIVED" IS NOT WHOLLY CLEAR.  ONE VIEW, ADOPTED BY THE COURT, IS THAT
PETITIONER'S LAWYER IN EFFECT ENTERED A CONDITIONAL PLEA OF GUILTY FOR
THE DEFENDANT.  ANOTHER INTERPRETATION, WHICH IS CERTAINLY ARGUABLE,
WOULD FIND THE AGREEMENT BETWEEN PETITIONER'S COUNSEL AND THE TRIAL
COURT TO INVOLVE NO MORE THAN A MATTER OF TRIAL PROCEDURE.  I BELIEVE A
LAWYER MAY PROPERLY MAKE A TACTICAL DETERMINATION OF HOW TO RUN A TRIAL
EVEN IN THE FACE OF HIS CLIENT'S INCOMPREHENSION OR EVEN EXPLICIT
DISAPPROVAL.  THE DECISION, FOR EXAMPLE, WHETHER OR NOT TO CROSS
EXAMINE A SPECIFIC WITNESS IS, I THINK, VERY CLEARLY ONE FOR COUNSEL
ALONE.  ALTHOUGH IT CAN BE CONTENDED THAT THE WAIVER HERE WAS NOTHING
MORE THAN A TACTICAL CHOICE OF THIS NATURE, I BELIEVE FOR FEDERAL
CONSTITUTIONAL PURPOSES THE PROCEDURE AGREED TO IN THIS INSTANCE
INVOLVED SO SIGNIFICANT A SURRENDER OF THE RIGHTS NORMALLY INCIDENT TO
A TRIAL THAT IT AMOUNTED ALMOST TO A PLEA OF GUILTY OR NOLO
CONTENDERE.  AND I DO NOT BELIEVE THAT UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT SUCH A PLEA MAY BE ENTERED BY COUNSEL OVER HIS
CLIENT'S PROTEST.    SECOND, GIVEN THE NEED FOR PETITIONER'S APPROVAL
OF THE ENTRY OF SUCH A PLEA, THE FURTHER QUESTION ARISES WHETHER
PETITIONER DID IN FACT AGREE TO BE TRIED IN A "PRIMA FACIE" TRIAL
WITHOUT THE OPPORTUNITY TO CROSS-EXAMINE WITNESSES.  THE SUPREME COURT
OF OHIO, ON THE BASIS OF AN EXAMINATION OF THE RECORD, FOUND THAT
PETITIONER "AGREED THAT ALL THE STATE HAD TO PROVE WAS A PRIMA FACIE
CASE, THAT HE WOULD NOT CONTEST IT, AND THAT THERE WOULD BE NO CROSS
EXAMINATION OF WITNESSES."  BROOKHART V. HASKINS, 2 OHIO ST. 2D 36, 38,
205 N.E.2D 911, 913.  THIS COURT, AFTER AN INDEPENDENT EXAMINATION OF
THE RELEVANT PORTION OF THE SAME RECORD, REPRINTED, ANTE, PP. 5-6,
FINDS THAT PETITIONER "DID NOT INTELLIGENTLY AND KNOWINGLY AGREE TO BE
TRIED IN A PROCEEDING WHICH WAS THE EQUIVALENT OF A GUILTY PLEA  ...
."  ANTE, P. 7. 

THE DECISIVE FACT IS OF COURSE THE STATE OF PETITIONER'S MIND - HIS
UNDERSTANDING AND HIS INTENTION - WHEN HIS COUNSEL STATED TO THE TRIAL
COURT:  "PRIMA FACIE, YOUR HONOR, IS ALL WE ARE INTERESTED IN."  MY
READING OF THE RECORD LEAVES ME IN SUBSTANTIAL DOUBT AS TO WHAT
PETITIONER'S ACTUAL UNDERSTANDING WAS AT THE END OF THE PERTINENT
COURTROOM COLLOQUY, A DOUBT THAT IS ENHANCED BY THE GENERAL
UNFAMILIARITY THAT SEEMS TO EXIST WITH THIS OHIO "PRIMA FACIE"
PRACTICE.*  I CANNOT SEE HOW THE QUESTION CAN BE SATISFACTORILY
RESOLVED SOLELY ON THE EXISTING RECORD.  I WOULD THEREFORE VACATE THIS
JUDGMENT AND REMAND THE CASE FOR A HEARING UNDER APPROPRIATE STATE
PROCEDURES TO DETERMINE WHETHER PETITIONER DID IN FACT KNOWINGLY AND
FREELY CHOOSE TO HAVE HIS GUILT DETERMINED IN THIS TYPE OF TRIAL. 
FAILING THE AVAILABILITY OF SUCH PROCEEDINGS IN THE STATE COURTS, THE
AVENUE OF FEDERAL HABEAS CORPUS WOULD THEN BE OPEN TO PETITIONER FOR
DETERMINATION OF THAT ISSUE. 

*THE SUPREME COURT OF OHIO CHARACTERIZED THE PROCEDURE AS "UNUSUAL,"
2 OHIO ST. 2D, AT 39, 205 N.E.2D, AT 914.  AT ORAL ARGUMENT, THE
ASSISTANT ATTORNEY GENERAL OF OHIO NOTED THAT HE HAD BEEN UNAWARE OF
SUCH A PROCEDURE, AND THAT THE PRACTICE COULD NOT BE FOUND IN ANY
STATUTE OR RULES OF COURT.  THE STATE EXPLAINS THE PROCEDURE AS
FOLLOWS:  "THERE IS NO STATUTORY PLEA OF NOLO CONTENDERE IN OHIO IN
FELONY CASES, THEREFORE, WHEN ONE IS CHARGED WITH A CRIME WHICH HE
KNOWS THAT HE CANNOT SUCCESSFULLY DEFEND, BUT A PLEA OF GUILTY WILL
SUBJECT HIM TO A PENALTY IN A CIVIL SUIT ARISING OUT OF THE SAME
FACTUAL SITUATION, HE IS WITHOUT RECOURSE TO PLEA OF NOLO CONTENDERE AS
IS PERMITTED IN FEDERAL COURTS AND CERTAIN OTHER STATE COURTS.  TO
CIRCUMVENT THIS DIFFICULTY SOME OHIO COURTS HAVE ALLOWED, AS WAS DONE
HERE, THE ACCUSED TO ENTER A PLEA OF NOT GUILTY AND BY ARRANGEMENT
REQUIRE THE PROSECUTION TO PROVE ONLY A PRIMA FACIE CASE."  BRIEF, AT
44-45, NOTE 41. 
..END :
























ELFBRANDT V. RUSSELL 384 U.S. 11 


NO. 656.  ARGUED FEBRUARY 24, 1966.  - DECIDED APRIL 18, 1966.  - 97
ARIZ. 140, 397 P.2D 944, REVERSED. 


STATE EMPLOYEES IN ARIZONA MUST TAKE AN OATH TO SUPPORT THE FEDERAL
AND STATE CONSTITUTIONS AND STATE LAWS.  UNDER A LEGISLATIVE GLOSS PUT
ON THE OATH, AN EMPLOYEE IS SUBJECT TO PROSECUTION FOR PERJURY AND
DISCHARGE FROM OFFICE IF HE "KNOWINGLY AND WILFULLY BECOMES OR REMAINS
A MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES OR ITS SUCCESSORS
OR ANY OF ITS SUBORDINATE ORGANIZATIONS" OR "ANY OTHER ORGANIZATION"
HAVING FOR "ONE OF ITS PURPOSES" THE OVERTHROW OF THE STATE GOVERNMENT
WHERE THE EMPLOYEE HAD KNOWLEDGE OF THE UNLAWFUL PURPOSE.  PETITIONER,
A TEACHER, FILED SUIT FOR DECLARATORY RELIEF, HAVING DECIDED THAT SHE
COULD NOT IN GOOD CONSCIENCE TAKE THE OATH, NOT KNOWING WHAT IT MEANT
AND BEING UNABLE TO OBTAIN A HEARING TO DETERMINE ITS PRECISE SCOPE AND
MEANING.  THE JUDGMENT OF THE ARIZONA SUPREME COURT SUSTAINING THE OATH
WAS VACATED BY THIS COURT, 378 U.S. 127, AND REMANDED FOR
RECONSIDERATION IN LIGHT OF BAGGETT V. BULLITT, 377 U.S. 360.  ON
RECONSIDERATION THE ARIZONA SUPREME COURT REINSTATED THE ORIGINAL
JUDGMENT, FINDING THE OATH "NOT AFFLICTED" WITH THE MANY UNCERTAINTIES
FOUND POTENTIALLY PUNISHABLE IN BAGGETT V. BULLITT.  HELD: 

1.  POLITICAL GROUPS MAY EMBRACE BOTH LEGAL AND ILLEGAL AIMS, AND ONE
MAY JOIN SUCH GROUPS WITHOUT EMBRACING THE LATTER.  PP. 15-17. 

2.  THOSE WHO JOIN AN ORGANIZATION WITHOUT SHARING IN ITS UNLAWFUL
PURPOSES POSE NO THREAT TO CONSTITUTIONAL GOVERNMENT, EITHER AS
CITIZENS OR AS PUBLIC EMPLOYEES.  P. 17. 

3.  TO PRESUME CONCLUSIVELY THAT THOSE WHO JOIN A "SUBVERSIVE"
ORGANIZATION SHARE ITS UNLAWFUL AIMS IS FORBIDDEN BY THE PRINCIPLE THAT
A STATE MAY NOT COMPEL A CITIZEN TO PROVE THAT HE HAS NOT ENGAGED IN
CRIMINAL ADVOCACY.  SPEISER V. RANDALL, 357 U.S. 513, FOLLOWED.  P. 17
18. 

4.  THE ARIZONA ACT IS NOT CONFINED TO THOSE WHO JOIN WITH THE
"SPECIFIC INTENT" TO FURTHER THE ILLEGAL AIMS OF THE SUBVERSIVE
ORGANIZATION; BECAUSE IT IS NOT "NARROWLY DRAWN TO DEFINE AND PUNISH
SPECIFIC CONDUCT AS CONSTITUTING A CLEAR AND PRESENT DANGER" IT
UNNECESSARILY INFRINGES ON THE FREEDOM OF POLITICAL ASSOCIATION.  PP.
16-19. 

ELFBRANDT V. RUSSELL ET AL. 

CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, WHICH INVOLVES QUESTIONS CONCERNING THE CONSTITUTIONALITY
OF AN ARIZONA ACT REQUIRING AN OATH FROM STATE EMPLOYEES, HAS BEEN HERE
BEFORE.  WE VACATED THE JUDGMENT OF THE ARIZONA SUPREME COURT WHICH HAD
SUSTAINED THE OATH (94 ARIZ. 1, 381 P.2D 554) AND REMANDED THE CAUSE
FOR RECONSIDERATION IN LIGHT OF BAGGETT V. BULLITT, 377 U.S. 360.  SEE
378 U.S. 127.  ON RECONSIDERATION THE SUPREME COURT OF ARIZONA
REINSTATED THE ORIGINAL JUDGMENT.  97 ARIZ. 140, 397 P.2D 944.  THE
CASE IS HERE ON CERTIORARI.  382 U.S. 810. 

THE OATH READS IN CONVENTIONAL FASHION AS FOLLOWS:  (FN1) 

"I, (TYPE OR PRINT NAME) DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL
SUPPORT THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION AND
LAWS OF THE STATE OF ARIZONA; THAT I WILL BEAR TRUE FAITH AND
ALLEGIANCE TO THE SAME, AND DEFEND THEM AGAINST ALL ENEMIES, FOREIGN
AND DOMESTIC, AND THAT I WILL FAITHFULLY AND IMPARTIALLY DISCHARGE THE
DUTIES OF THE OFFICE OF (NAME OF OFFICE) ACCORDING TO THE BEST OF MY
ABILITY, SO HELP ME GOD (OR SO I DO AFFIRM)." 

THE LEGISLATURE PUT A GLOSS ON THE OATH  (FN2) BY SUBJECTING TO A
PROSECUTION FOR PERJURY AND FOR DISCHARGE FROM PUBLIC OFFICE ANYONE WHO
TOOK THE OATH AND WHO "KNOWINGLY AND WILFULLY BECOMES OR REMAINS A
MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES OR ITS SUCCESSORS OR
ANY OF ITS SUBORDINATE ORGANIZATIONS" OR "ANY OTHER ORGANIZATION"
HAVING FOR "ONE OF ITS PURPOSES" THE OVERTHROW OF THE GOVERNMENT OF
ARIZONA OR ANY OF ITS POLITICAL SUBDIVISIONS WHERE THE EMPLOYEE HAD
KNOWLEDGE OF THE UNLAWFUL PURPOSE.  PETITIONER, A TEACHER AND A QUAKER,
DECIDED SHE COULD NOT IN GOOD CONSCIENCE TAKE THE OATH, NOT KNOWING
WHAT IT MEANT AND NOT HAVING ANY CHANCE TO GET A HEARING AT WHICH ITS
PRECISE SCOPE AND MEANING COULD BE DETERMINED.  THIS SUIT FOR
DECLARATORY RELIEF FOLLOWED.  ON OUR REMAND THE ARIZONA SUPREME COURT
SAID THAT THE GLOSS ON THE OATH IS "NOT AFFLICTED" WITH THE MANY
UNCERTAINTIES FOUND POTENTIALLY PUNISHABLE IN BAGGETT V. BULLITT,
SUPRA. 

"NOR DOES IT REACH ENDORSEMENTS OR SUPPORT FOR COMMUNIST CANDIDATES
FOR OFFICE NOR A LAWYER WHO REPRESENTS THE COMMUNIST PARTY, OR ITS
MEMBERS, NOR JOURNALISTS WHO DEFEND THE COMMUNIST PARTY, ITS RIGHTS, OR
ITS MEMBERS.  SUCH CONDUCT IS NEITHER AN ACT NOR IN AID OF AN ACT
ATTEMPTING TO OVERTHROW THE GOVERNMENT BY FORCE AND VIOLENCE. 

"IT IS OUR CONCLUSION THAT THE PORTIONS OF THE ARIZONA ACT HERE
CONSIDERED DO NOT FORBID OR REQUIRE CONDUCT IN TERMS SO VAGUE THAT MEN
OF COMMON INTELLIGENCE MUST NECESSARILY GUESS AT THE MEANING AND DIFFER
AS TO THEIR APPLICATION."  97 ARIZ., AT 147, 397 P.2D, AT 948. 

MR. JUSTICE BERNSTEIN, IN DISSENT, RESPONDED THAT THE MAJORITY HAD
FAILED TO CONSIDER THE SO-CALLED "MEMBERSHIP CLAUSE" OF THE OATH AND
ACCOMPANYING STATUTORY GLOSS: 

"LET US CONSIDER A SCIENTIST, A TEACHER IN ONE OF OUR UNIVERSITIES. 
HE COULD NOT KNOW WHETHER MEMBERSHIP IS PROHIBITED IN AN INTERNATIONAL
SCIENTIFIC ORGANIZATION WHICH INCLUDES MEMBERS FROM NEUTRALIST NATIONS
AND COMMUNIST BLOC NATIONS - THE LATTER ADMITTEDLY DEDICATED TO THE
OVERTHROW OF OUR GOVERNMENT AND WHICH CONTROL THE ORGANIZATION - EVEN
THOUGH ACCESS TO THE SCIENTIFIC INFORMATION OF THE ORGANIZATION IS
AVAILABLE ONLY TO ITS MEMBERS. 

     *     *         *         *         * 

"THOUGH ALL MIGHT AGREE THAT THE PRINCIPAL PURPOSE OF SUCH AN
ORGANIZATION IS SCIENTIFIC, THE STATUTE MAKES HIS MEMBERSHIP A CRIME IF
ANY SUBORDINATE PURPOSE IS THE OVERTHROW OF THE STATE GOVERNMENT.  THE
VICE OF VAGUENESS HERE IS THAT THE SCIENTIST CANNOT KNOW WHETHER
MEMBERSHIP IN THE ORGANIZATION WILL RESULT IN PROSECUTION FOR A
VIOLATION OF SEC. 38-231, SUBD. E OR IN HONORS FROM HIS UNIVERSITY FOR
THE ENCYCLOPEDIC KNOWLEDGE ACQUIRED IN HI FIELD IN PART THROUGH HIS
MEMBERSHIP."  ID., AT 147-148, 397 P.2D, AT 949. 

WE RECOGNIZED IN SCALES V. UNITED STATES, 367 U.S. 203, 229, THAT
"QUASI-POLITICAL PARTIES OR OTHER GROUPS  ...  MAY EMBRACE BOTH LEGAL
AND ILLEGAL AIMS."  WE NOTED THAT A "BLANKET PROHIBITION OF ASSOCIATION
WITH A GROUP HAVING BOTH LEGAL AND ILLEGAL AIMS" WOULD POSE "A REAL
DANGER THAT LEGITIMATE POLITICAL EXPRESSION OR ASSOCIATION WOULD BE
IMPAIRED."  THE STATUTE WITH WHICH WE DEALT IN SCALES, THE SO-CALLED
"MEMBERSHIP CLAUSE" OF THE SMITH ACT (18 U.S.C. SEC 2385), WAS FOUND
NOT TO SUFFER FROM THIS CONSTITUTIONAL INFIRMITY BECAUSE, AS THE COURT
CONSTRUED IT, THE STATUTE REACHED ONLY "ACTIVE" MEMBERSHIP (ID., AT
222) WITH THE "SPECIFIC INTENT" OF ASSISTING IN ACHIEVING THE UNLAWFUL
ENDS OF THE ORGANIZATION (ID., AT 229-230).  THE IMPORTANCE OF THIS
LIMITING CONSTRUCTION FROM A CONSTITUTIONAL STANDPOINT WAS EMPHASIZED
IN NOTO V. UNITED STATES, 367, U.S. 290, 299-300, DECIDED THE SAME
DAY: 

"IT SHOULD ALSO BE SAID THAT THIS ELEMENT OF THE MEMBERSHIP CRIME
(THE DEFENDANT'S 'PERSONAL CRIMINAL PURPOSE TO BRING ABOUT THE
OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE'), LIKE ITS OTHERS,
MUST BE JUDGED STRICTISSIMI JURIS, FOR OTHERWISE THERE IS A DANGER THAT
ONE IN SYMPATHY WITH THE LEGITIMATE AIMS OF SUCH AN ORGANIZATION, BUT
NOT SPECIFICALLY INTENDING TO ACCOMPLISH THEM BY RESORT TO VIOLENCE,
MIGHT BE PUNISHED FOR HIS ADHERENCE TO LAWFUL AND CONSTITUTIONALLY
PROTECTED PURPOSES, BECAUSE OF OTHER AND UNPROTECTED PURPOSES WHICH HE
DOES NOT NECESSARILY SHARE."  (FN3) 

ANY LINGERING DOUBT THAT PROSCRIPTION OF MERE KNOWING MEMBERSHIP,
WITHOUT ANY SHOWING OF "SPECIFIC INTENT," WOULD RUN AFOUL OF THE
CONSTITUTION WAS SET AT REST BY OUR DECISION IN APTHEKER V. SECRETARY
OF STATE, 378 U.S. 500.  WE DEALT THERE WITH A STATUTE WHICH PROVIDED
THAT NO MEMBER OF A COMMUNIST ORGANIZATION ORDERED BY THE SUBVERSIVE
ACTIVITIES CONTROL BOARD TO REGISTER SHALL APPLY FOR OR USE A
PASSPORT.  WE CONCLUDED THAT THE STATUTE WOULD NOT PERMIT A NARROW
READING OF THE SORT WE GAVE SEC 2385 IN SCALES.  SEE 378 U.S., AT 511,
N. 9.  THE STATUTE, AS WE READ IT, COVERED MEMBERSHIP WHICH WAS NOT
ACCOMPANIED BY A SPECIFIC INTENT TO FURTHER THE UNLAWFUL AIMS OF THE
ORGANIZATION, AND WE HELD IT UNCONSTITUTIONAL. 

THE OATH AND ACCOMPANYING STATUTORY GLOSS CHALLENGED HERE SUFFER FROM
AN IDENTICAL CONSTITUTIONAL INFIRMITY.  ONE WHO SUBSCRIBES TO THIS
ARIZONA OATH AND WHO IS, OR THEREAFTER BECOMES, A KNOWING MEMBER OF AN
ORGANIZATION WHICH HAS AS "ONE OF ITS PURPOSES" THE VIOLENT OVERTHROW
OF THE GOVERNMENT, IS SUBJECT TO IMMEDIATE DISCHARGE AND CRIMINAL
PENALTIES.  NOTHING IN THE OATH, THE STATUTORY GLOSS, OR THE
CONSTRUCTION OF THE OATH AND STATUTES GIVEN BY THE ARIZONA SUPREME
COURT, PURPORTS TO EXCLUDE ASSOCIATION BY ONE WHO DOES NOT SUBSCRIBE TO
THE ORGANIZATION'S UNLAWFUL ENDS.  HERE AS IN BAGGETT V. BULLITT,
SUPRA, THE "HAZARD OF BEING PROSECUTED FOR KNOWING BUT GUILTLESS
BEHAVIOR" (ID., AT 373) IS A REALITY.  PEOPLE OFTEN LABEL AS
"COMMUNIST" IDEAS WHICH THEY OPPOSE; AND THEY OFTEN MAKE UP OUR
JURIES.  "PROSECUTORS TOO ARE HUMAN."  CRAMP V. BOARD OF PUBLIC
INSTRUCTION, 368 U.S. 278, 287.  WOULD A TEACHER BE SAFE AND SECURE IN
GOING TO A PUGWASH CONFERENCE?  (FN4)  WOULD IT BE LEGAL TO JOIN A
SEMINAR GROUP PREDOMINANTLY COMMUNIST AND THEREFORE SUBJECT TO CONTROL
BY THOSE WHO ARE SAID TO BELIEVE IN THE OVERTHROW OF THE GOVERNMENT BY
FORCE AND VIOLENCE?  JURIES MIGHT CONVICT THOUGH THE TEACHER DID NOT
SUBSCRIBE TO THE WRONGFUL AIMS OF THE ORGANIZATION.  AND THERE IS
APPARENTLY NO MACHINERY PROVIDED FOR GETTING CLEARANCE IN ADVANCE. 
(FN5) 

THOSE WHO JOIN AN ORGANIZATION BUT DO NOT SHARE ITS UNLAWFUL PURPOSES
AND WHO DO NOT PARTICIPATE IN ITS UNLAWFUL ACTIVITIES SURELY POSE NO
THREAT, EITHER AS CITIZENS OR AS PUBLIC EMPLOYEES.  LAWS SUCH AS THIS
WHICH ARE NOT RESTRICTED IN SCOPE TO THOSE WHO JOIN WITH THE "SPECIFIC
INTENT" TO FURTHER ILLEGAL ACTION IMPOSE, IN EFFECT, A CONCLUSIVE
PRESUMPTION THAT THE MEMBER SHARES THE UNLAWFUL AIMS OF THE
ORGANIZATION.  SEE APTHEKER V. SECRETARY OF STATE, SUPRA, AT 511.  THE
UNCONSTITUTIONALITY OF THIS ACT FOLLOWS A FORTIORI FROM SPEISER V.
RANDALL, 357 U.S. 513, WHERE WE HELD THAT A STATE MAY NOT EVEN PLACE ON
AN APPLICANT FOR A TAX EXEMPTION THE BURDEN OF PROVING THAT HE HAS NOT
ENGAGED IN CRIMINAL ADVOCACY. 

THIS ACT THREATENS THE CHERISHED FREEDOM OF ASSOCIATION PROTECTED BY
THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES THROUGH THE
FOURTEENTH AMENDMENT.  BAGGETT V. BULLITT, SUPRA; CRAMP V. BOARD OF
PUBLIC INSTRUCTION, SUPRA.  CF. N.A.A.C.P. V. ALABAMA, 357 U.S. 449,
460 ET SEQ.; GIBSON V. FLORIDA LEGISLATIVE COMMITTEE, 372 U.S. 539, 543
546.  AND, AS A COMMITTEE OF THE ARIZONA LEGISLATURE WHICH URGED
ADOPTION OF THIS LAW ITSELF RECOGNIZED, PUBLIC EMPLOYEES OF CHARACTER
AND INTEGRITY MAY WELL FORGO THEIR CALLING RATHER THAN RISK PROSECUTION
FOR PERJURY OR COMPROMISE THEIR COMMITMENT TO INTELLECTUAL AND
POLITICAL FREEDOM: 

"THE COMMUNIST TRAINED IN FRAUD AND PERJURY HAS NO QUALMS IN TAKING
ANY OATH; THE LOYAL CITIZEN, CONSCIOUS OF HISTORY'S OPPRESSIONS, MAY
WELL WONDER WHETHER THE MEDIEVAL RACK AND TORTURE WHEEL ARE NEXT FOR
THE ONE WHO DECLINES TO TAKE AN INVOLVED NEGATIVE OATH AS EVIDENCE THAT
HE IS A TRUE BELIEVER."  (FN6) 

A STATUTE TOUCHING THOSE PROTECTED RIGHTS MUST BE "NARROWLY DRAWN TO
DEFINE AND PUNISH SPECIFIC CONDUCT AS CONSTITUTING A CLEAR AND PRESENT
DANGER TO A SUBSTANTIAL INTEREST OF THE STATE."  CANTWELL V.
CONNECTICUT, 310 U.S. 296, 311.  LEGITIMATE LEGISLATIVE GOALS "CANNOT
BE PURSUED BY MEANS THAT BROADLY STIFLE FUNDAMENTAL PERSONAL LIBERTIES
WHEN THE END CAN BE MORE NARROWLY ACHIEVED."  SHELTON V. TUCKER, 364
U.S. 479, 488.  AND SEE LOUISIANA V. N.A.A.C.P., 366 U.S. 293, 296
297.  AS WE SAID IN N.A.A.C.P. V. BUTTON, 371 U.S. 415, 432-433: 

"THE OBJECTIONABLE QUALITY OF  ...  OVERBREADTH DOES NOT DEPEND UPON
ABSENCE OF FAIR NOTICE TO A CRIMINALLY ACCUSED OR UPON UNCHANNELED
DELEGATION OF LEGISLATIVE POWERS, BUT UPON THE DANGER OF TOLERATING, IN
THE AREA OF FIRST AMENDMENT FREEDOMS, THE EXISTENCE OF A PENAL STATUTE
SUSCEPTIBLE OF SWEEPING AND IMPROPER APPLICATION  ...  .  THESE
FREEDOMS ARE DELICATE AND VULNERABLE, AS WELL AS SUPREMELY PRECIOUS IN
OUR SOCIETY.  THE THREAT OF SANCTIONS MAY DETER THEIR EXERCISE ALMOST
AS POTENTLY AS THE ACTUAL APPLICATION OF SANCTIONS  ...  ." 

A LAW WHICH APPLIES TO MEMBERSHIP WITHOUT THE "SPECIFIC INTENT" TO
FURTHER THE ILLEGAL AIMS OF THE ORGANIZATION INFRINGES UNNECESSARILY ON
PROTECTED FREEDOMS.  IT RESTS ON THE DOCTRINE OF "GUILT BY ASSOCIATION"
WHICH HAS NO PLACE HERE.  SEE SCHNEIDERMAN V. UNITED STATES, 320 U.S.
118, 136; SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 246.  SUCH A
LAW CANNOT STAND.  REVERSED. 

FN1  ARIZ. REV. STAT. SEC 38-231 (1965 SUPP.). 

FN2  ID., SEC E READS AS FOLLOWS: 

"ANY OFFICER OR EMPLOYEE AS DEFINED IN THIS SECTION HAVING TAKEN THE
FORM OF OATH OR AFFIRMATION PRESCRIBED BY THIS SECTION, AND KNOWINGLY
OR WILFULLY AT THE TIME OF SUBSCRIBING THE OATH OR AFFIRMATION, OR AT
ANY TIME THEREAFTER DURING HIS TERM OF OFFICE OR EMPLOYMENT, DOES
COMMIT OR AID IN THE COMMISSION OF ANY ACT TO OVERTHROW BY FORCE OR
VIOLENCE THE GOVERNMENT OF THIS STATE OR OF ANY OF ITS POLITICAL
SUBDIVISIONS, OR ADVOCATES THE OVERTHROW BY FORCE OR VIOLENCE OF THE
GOVERNMENT OF THIS STATE OR OF ANY OF ITS POLITICAL SUBDIVISIONS, OR
DURING SUCH TERM OF OFFICE OR EMPLOYMENT KNOWINGLY AND WILFULLY BECOMES
OR REMAINS A MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES OR ITS
SUCCESSORS OR ANY OF ITS SUBORDINATE ORGANIZATIONS OR ANY OTHER
ORGANIZATION HAVING FOR ONE OF ITS PURPOSES THE OVERTHROW BY FORCE OR
VIOLENCE OF THE GOVERNMENT OF THE STATE OF ARIZONA OR ANY OF ITS
POLITICAL SUBDIVISIONS, AND SAID OFFICER OR EMPLOYEE AS DEFINED IN THIS
ORGANIZATIONS HAD KNOWLEDGE OF SAID UNLAWFUL PURPOSE OF SAID
ORGANIZATION OR ORGANIZATIONS, SHALL BE GUILTY OF A FELONY AND UPON
CONVICTION THEREOF SHALL BE SUBJECT TO ALL THE PENALTIES FOR PERJURY;
IN ADDITION, UPON CONVICTION UNDER THIS SECTION, THE OFFICER OR
EMPLOYEE SHALL BE DEEMED DISCHARGED FROM SAID OFFICE OR EMPLOYMENT AND
SHALL NOT BE ENTITLED TO ANY ADDITIONAL COMPENSATION OR ANY OTHER
EMOLUMENTS OR BENEFITS WHICH MAY HAVE BEEN INCIDENT OR APPURTENANT TO
SAID OFFICE OR EMPLOYMENT." 

FN3  CF. ROWOLDT V. PERFETTO, 355 U.S. 115, 120; GASTELUM-QUINONES V.
KENNEDY, 374 U.S. 469. 

FN4  THE PUGWASH CONFERENCES, A STAFF ANALYSIS, SUBCOMMITTEE TO
INVESTIGATE THE ADMINISTRATION OF THE INTERNAL SECURITY ACT, SENATE
COMMITTEE ON THE JUDICIARY, COMMITTEE PRINT, 87TH CONG., 1ST SESS.
(1961); RABINOWITCH, PUGWASH - HISTORY AND OUTLOOK, 13 BULL.  ATOMIC
SCI.  243 (1957); TOPCHIEV, COMMENTS ON PUGWASH:  FROM THE EAST, 14
BULL.  ATOMIC SCI.  118 (1958); THIRRING, COMMENTS ON PUGWASH:  FROM
THE WEST, ID., AT 121; RABINOWITCH, THE STOWE CONFERENCES, 17 BULL. 
ATOMIC SCI.  382 (1961); STATEMENT OF INTERNATIONAL PUGWASH CONTINUING
COMMITTEE:  PUGWASH XIII, BULL.  ATOMIC SCI.  43-45 (DECEMBER 1964);
DOCUMENTS OF SECOND PUGWASH CONFERENCE OF NUCLEAR SCIENTISTS (MARCH 31
APRIL 11, 1958).    FN5  PETITIONER WOULD, OF COURSE, HAVE A HEARING AT
A PERJURY TRIAL, AFTER THE EVENT.  AND ONE MEMBER OF THE ARIZONA
SUPREME COURT FELT THAT PETITIONER, HAVING TENURE, WOULD BE ENTITLED TO
A HEARING BEFORE SHE WAS DISCHARGED FROM HER TEACHING POSITION.  SEE
ELFBRANDT V. RUSSELL, 94 ARIZ. 1, 17-18, 381 P.2D 554, 565 (BERNSTEIN,
C.J., CONCURRING).  BUT EVEN THAT IS NOT AUTHORITATIVELY DECIDED BY THE
COURT; INDEED, ANOTHER OPINION STATES THIS TO BE A MINORITY VIEW, 94
ARIZ., AT 18, 381 P.2D, AT 566 (SEPARATE OPINION OF JENNINGS, J.). 

FN6  REPORT OF THE JUDICIARY COMMITTEE IN SUPPORT OF THE COMMITTEE
AMENDMENT TO H.B. 115, JOURNAL OF THE SENATE, 1ST REG. SESS., 25TH
LEGISLATURE OF THE STATE OF ARIZONA, P. 424 (1961). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN
AND MR. JUSTICE STEWART CONCUR, DISSENTING. 

ACCORDING TO UNEQUIVOCAL PRIOR HOLDINGS OF THIS COURT, A STATE IS
ENTITLED TO CONDITION PUBLIC EMPLOYMENT UPON ITS EMPLOYEES ABSTAINING
FROM KNOWING MEMBERSHIP IN THE COMMUNIST PARTY AND OTHER ORGANIZATIONS
ADVOCATING THE VIOLENT OVERTHROW OF THE GOVERNMENT WHICH EMPLOYS THEM;
THE STATE IS CONSTITUTIONALLY AUTHORIZED TO INQUIRE INTO SUCH
AFFILIATIONS AND IT MAY DISCHARGE THOSE WHO REFUSE TO AFFIRM OR DENY
THEM.  GERENDE V. BOARD OF SUPERVISORS OF ELECTIONS, 341 U.S. 56;
GARNER V. BOARD OF PUBLIC WORKS, 341 U.S. 716; ADLER V. BOARD OF
EDUCATION, 342 U.S. 485; BEILAN V. BOARD OF EDUCATION, 357 U.S. 399;
LERNER V. CASEY, 357 U.S. 468; NELSON V. COUNTY OF LOS ANGELES, 362
U.S. 1; SEE ALSO WIEMAN V. UPDEGRAFF, 344 U.S. 183; SLOCHOWER V. BOARD
OF EDUCATION, 350 U.S. 551.  THE COURT DOES NOT MENTION OR PURPORT TO
OVERRULE THESE CASES; NOR DOES IT EXPRESSLY HOLD THAT A STATE MUST
RETAIN, EVEN IN ITS MOST SENSITIVE POSITIONS, THOSE WHO LEND SUCH
SUPPORT AS KNOWING MEMBERSHIP ENTAILS TO THOSE ORGANIZATIONS, SUCH AS
THE COMMUNIST PARTY, WHOSE PURPOSES INCLUDE THE VIOLENT DESTRUCTION OF
DEMOCRATIC GOVERNMENT. 

UNDER EXISTING CONSTITUTIONAL LAW, THEN, ARIZONA IS FREE TO REQUIRE
ITS TEACHERS TO REFRAIN FROM KNOWING MEMBERSHIP IN THE DESIGNATED
ORGANIZATIONS AND TO BAR FROM EMPLOYMENT ALL KNOWING MEMBERS AS WELL AS
THOSE WHO REFUSE TO ESTABLISH THEIR QUALIFICATIONS TO TEACH BY
EXECUTING THE OATH PRESCRIBED BY THE STATUTE.  ARIZONA NEED NOT RETAIN
THOSE EMPLOYEES ON THE GOVERNOR'S STAFF, IN THE PHOENIX POLICE
DEPARTMENT OR IN ITS SCHOOLS WHO INSIST ON HOLDING MEMBERSHIP IN AND
LENDING THEIR NAME AND INFLUENCE TO THOSE ORGANIZATIONS AIMING AT
VIOLENT OVERTHROW.  ADLER V. BOARD OF EDUCATION, 342 U.S. 485. 

IT WOULD SEEM, THEREFORE, THAT THE COURT'S JUDGMENT IS AIMED AT THE
CRIMINAL PROVISIONS OF THE ARIZONA LAW WHICH EXPOSE AN EMPLOYEE TO A
PERJURY PROSECUTION IF HE SWEARS FALSELY ABOUT MEMBERSHIP WHEN HE SIGNS
THE OATH OR IF HE LATER BECOMES A KNOWING MEMBER WHILE REMAINING IN
PUBLIC EMPLOYMENT.   BUT THE STATE IS ENTITLED TO CONDITION EMPLOYMENT
ON THE ABSENCE OF KNOWING MEMBERSHIP; AND IF AN EMPLOYEE OBTAINS
EMPLOYMENT BY FALSIFYING HIS PRESENT QUALIFICATIONS, THERE IS NO SOUND
CONSTITUTIONAL REASON FOR DENYING THE STATE THE POWER TO TREAT SUCH
FALSE SWEARING AS PERJURY.  ALIRE V. UNITED STATES, 313 F.2D 31; OGDEN
V. UNITED STATES, 303 F.2D 724.  (FN1)  BY THE SAME TOKEN, SINCE
KNOWING MEMBERSHIP IN SPECIFIED ORGANIZATIONS IS A VALID
DISQUALIFICATION, ARIZONA CANNOT SENSIBLY BE FORBIDDEN TO MAKE IT A
CRIME FOR A PERSON, WHILE A STATE EMPLOYEE, TO JOIN AN ORGANIZATION
KNOWING OF ITS DEDICATION TO THE FORCEFUL OVERTHROW OF HIS EMPLOYER AND
KNOWING THAT MEMBERSHIP DISQUALIFIES HIM FOR STATE EMPLOYMENT.  THE
CRIME PROVIDED BY THE ARIZONA LAW IS NOT JUST THE ACT OF BECOMING A
MEMBER OF AN ORGANIZATION BUT IT IS THAT MEMBERSHIP PLUS CONCURRENT
PUBLIC EMPLOYMENT.  IF A STATE MAY DISQUALIFY FOR KNOWING MEMBERSHIP
AND IMPOSE CRIMINAL PENALTIES FOR FALSIFYING EMPLOYMENT APPLICATIONS,
IT IS LIKEWISE WITHIN ITS POWERS TO MOVE CRIMINALLY AGAINST THE
EMPLOYEE WHO KNOWINGLY ENGAGES IN DISQUALIFYING ACTS DURING HIS
EMPLOYMENT.  IF A GOVERNMENT MAY REMOVE FROM OFFICE, 5 U.S.C. SEC 118I
(1964 ED.), UNITED PUBLIC WORKERS OF AMERICA V. MITCHELL, 330 U.S. 75,
AND CRIMINALLY PUNISH, 18 U.S.C.  SEC 607 (1964 ED.), ITS EMPLOYEES WHO
ENGAGE IN CERTAIN POLITICAL ACTIVITIES, IT IS UNSOUND TO HOLD THAT IT
MAY NOT, ON PAIN OF CRIMINAL PENALTIES, PREVENT ITS EMPLOYEES FROM
AFFILIATING WITH THE COMMUNIST PARTY OR OTHER ORGANIZATIONS PREPARED TO
EMPLOY VIOLENT MEANS TO OVERTHROW CONSTITUTIONAL GOVERNMENT.  OUR
CONSTITUTION DOES NOT REQUIRE THIS KIND OF PROTECTION FOR THE SECRET
PROSELYTING OF GOVERNMENT EMPLOYEES INTO THE COMMUNIST PARTY, AN
ORGANIZATION WHICH HAS BEEN FOUND TO BE CONTROLLED BY A FOREIGN POWER
AND TO BE DEDICATED TO THE OVERTHROW OF THE GOVERNMENT BY ANY ILLEGAL
MEANS NECESSARY TO ACHIEVE THIS END.  COMMUNIST PARTY OF THE UNITED
STATES V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1.  (FN2) 

THERE IS NOTHING IN SCALES V. UNITED STATES, 367 U.S. 203, NOTO V.
UNITED STATES, 367 U.S. 290, OR APTHEKER V. SECRETARY OF STATE, 378
U.S. 500, DICTATING THE RESULT REACHED BY THE COURT.  SCALES INVOLVED
THE CONSTRUCTION OF THE SMITH ACT AND A HOLDING THAT THE MEMBERSHIP
CLAUSE DID NOT REACH MEMBERS WHO KNEW OF THE ILLEGAL AIMS OF THE PARTY
BUT LACKED AN ACTIVE MEMBERSHIP AND AN INTENT TO FURTHER THE ILLEGAL
ENDS.  NOTO ALSO INVOLVED A CONSTRUCTION OF THE SMITH ACT, THE
CONVICTION THERE BEING REVERSED FOR INSUFFICIENT EVIDENCE.  APTHEKER
STRUCK DOWN A PROVISION DENYING PASSPORTS TO MEMBERS OF THE COMMUNIST
PARTY WHICH APPLIED "WHETHER OR NOT ONE KNOWS OR BELIEVES THAT HE IS
ASSOCIATED WITH AN ORGANIZATION OPERATING TO FURTHER AIMS OF THE WORLD
COMMUNIST MOVEMENT  ...  . THE PROVISION THEREFORE SWEEPS WITHIN ITS
PROHIBITION BOTH KNOWING AND UNKNOWING MEMBERS."  378 U.S., AT 510.  IN
ANY EVENT, SCALES, NOTO AND APTHEKER DID NOT DEAL WITH THE GOVERNMENT
EMPLOYEE WHO IS A KNOWING MEMBER OF THE COMMUNIST PARTY.  THEY DID NOT
SUGGEST THAT THE STATE OR FEDERAL GOVERNMENT SHOULD BE PROHIBITED FROM
TAKING ELEMENTARY PRECAUTIONS AGAINST ITS EMPLOYEES FORMING KNOWING AND
DELIBERATE AFFILIATIONS WITH THOSE ORGANIZATIONS WHO CONSPIRE TO
DESTROY THE GOVERNMENT BY VIOLENT MEANS.  SPEISER V. RANDALL, 357 U.S.
513, ALSO RELIED UPON BY THE MAJORITY, CAREFULLY PRESERVED GERENDE AND
GARNER FOR REASONS WHICH I THINK ARE EQUALLY APPLICABLE TO THE ARIZONA
OATH AND STATUTE.  IN MY VIEW, THEREFORE, THE COURT ERRS IN HOLDING
THAT THE ACT IS OVERBROAD BECAUSE IT INCLUDES STATE EMPLOYEES WHO ARE
KNOWING MEMBERS BUT WHO MAY NOT BE ACTIVE AND WHO MAY LACK THE SPECIFIC
INTENT TO FURTHER THE ILLEGAL AIMS OF THE PARTY.  (FN3) 

EVEN IF ARIZONA MAY NOT TAKE CRIMINAL ACTION AGAINST ITS LAW
ENFORCEMENT OFFICERS OR ITS TEACHERS WHO BECOME COMMUNISTS KNOWING OF
THE PURPOSES OF THE PARTY, THE COURT'S JUDGMENT OVERREACHES ITSELF IN
INVALIDATING THIS ARIZONA STATUTE.  WHETHER OR NOT ARIZONA MAY MAKE
KNOWING MEMBERSHIP A CRIME, IT NEED NOT RETAIN THE MEMBER AS AN
EMPLOYEE AND IS ENTITLED TO INSIST THAT ITS EMPLOYEES DISCLAIM, UNDER
OATH, KNOWING MEMBERSHIP IN THE DESIGNATED ORGANIZATIONS AND TO
CONDITION FUTURE EMPLOYMENT UPON FUTURE ABSTENTION FROM MEMBERSHIP.  IT
IS, THEREFORE, IMPROPER TO INVALIDATE THE ENTIRE STATUTE IN THIS
DECLARATORY JUDGMENT ACTION.  IF THE IMPOSITION OF CRIMINAL PENALTIES
UNDER THE PRESENT ACT IS INVALID, THE COURT SHOULD SO LIMIT ITS HOLDING
AND REMAND THE CASE TO THE ARIZONA COURTS TO DETERMINE THE SEVERABILITY
OF THE CRIMINAL PROVISIONS UNDER THE SEVERABILITY PROVISIONS OF THE ACT
ITSELF.  ARIZONA COMMUNIST CONTROL ACT OF 1961, ARIZ. LAWS 1961, C.
108, SEC. 8. 

FN1  THESE CASES UPHOLD THE CONSTITUTIONALITY OF 18 U.S.C. SEC 1001
(1964), WHICH MAKES IT A CRIME TO MAKE FALSE STATEMENTS WITH REGARD TO
ANY MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE
UNITED STATES.  MANY STATES HAVE COMPARABLE STATUTES, E.G., CAL. GOVT.
CODE SECS. 1368, 3108; MASS. GEN. LAWS ANN., C. 264, SECS. 14, 15;
OKLA. STAT. ANN., TIT. 51, SECS 36.5, 36.6. 

FN2  SEE THE FINDINGS OF CONGRESS, SUBVERSIVE ACTIVITIES CONTROL ACT
OF 1950, 50 U.S.C.  SEC 781 (1964 ED.), AND OF THE ARIZONA LEGISLATURE,
ARIZONA COMMUNIST CONTROL ACT OF 1961, ARIZ. LAWS 1961, C. 108 SEC. 2. 

FN3  ON REMAND FROM THIS COURT, 378 U.S. 127, THE ARIZONA SUPREME
COURT GAVE THE OATH AND STATUTE A NARROW READING THAT ELIMINATED THEIR
VULNERABILITY TO THE CHARGE OF BEING UNCONSTITUTIONALLY VAGUE.  97
ARIZ. 140, 397 P.2D 944.  SEE BAGGETT V. BULLITT, 377 U.S. 360. 
ALTHOUGH THE MAJORITY ON REMAND DID NOT DWELL ON THE MEMBERSHIP CLAUSE,
THIS, IT SEEMS TO ME, IS BECAUSE ITS MEANING IS CLEAR FROM THE FACE OF
THE STATUTE.  BY ITS OWN TERMS, UNLESS THE ORGANIZATION JOINED ACTUALLY
HAS AS A PURPOSE UNLAWFUL REVOLUTION AND THE EMPLOYEE ACTUALLY KNOWS OF
THIS PURPOSE, HE COMMITS NO CRIME.  "AND SINCE THE CONSTITUTIONAL VICE
IN A VAGUE OR INDEFINITE STATUTE IS THE INJUSTICE TO THE ACCUSED IN
PLACING HIM ON TRIAL FOR AN OFFENSE, THE NATURE OF WHICH HE IS GIVEN NO
FAIR WARNING, THE FACT THAT PUNISHMENT IS RESTRICTED TO ACTS DONE WITH
KNOWLEDGE THAT THEY CONTRAVENE THE STATUTE MAKES THIS OBJECTION
UNTENABLE."  AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382,
413. 
..END :






LOUISIANA V. MISSISSIPPI 384 U.S. 24 


NO. 14, ORIGINAL.  ARGUED NOVEMBER 16, 1965.  - DECIDED APRIL 18, 1966. 


LOUISIANA V. MISSISSIPPI ET AL. 

ON BILL OF COMPLAINT. 

PER CURIAM AND DECREE. 

UPON CONSIDERATION OF THE REPORT FILED JUNE 7, 1965, BY SENIOR JUDGE
MARVIN JONES, SPECIAL MASTER, AND THE EXCEPTIONS THERETO, IT IS NOW
ADJUDGED, ORDERED, AND DECREED AS FOLLOWS: 

(1)  ALL EXCEPTIONS ARE OVERRULED AND THE REPORT IS IN ALL THINGS
CONFIRMED. 

(2)  THE TRUE BOUNDARY BETWEEN THE STATES OF LOUISIANA AND
MISSISSIPPI IN THE AREA OF THE MISSISSIPPI RIVER KNOWN AS DEADMAN'S
BEND ON THE SEVERAL DATES MENTIONED IS DETERMINED TO BE AS FOLLOWS: 

AT ALL TIMES THE LIVE THALWEG HAS BEEN THE TRUE BOUNDARY. 

ON OCTOBER 3, 1952, THE LIVE THALWEG WAS A GRADUALLY CURVING LINE
RUNNING SOUTHWARD FROM THE FOOT OF GLASSCOCK CUTOFF, AND EAST OF THE
FUTURE LOCATION OF LOUISIANA STATE WELL NO. 1 BY 230 FEET, TO THE END
OF DEADMAN'S BEND AT RANGE 334.5 AHP.  THIS LINE IS DESCRIBED BELOW BY
LATITUDE AND LONGITUDE AND IS DRAWN ON SPECIAL MASTER EXHIBIT NO. 1. 

ON APRIL 10, 1964, THE LIVE THALWEG WAS A GRADUALLY CURVING LINE
RUNNING SOUTHWARD FROM THE FOOT OF GLASSCOCK CUTOFF, AND WEST OF
LOUISIANA STATE WELL NO. 1 BY 850 FEET, TO THE END OF DEADMAN'S BEND AT
RANGE 334.5 AHP.  THIS LINE IS DESCRIBED BELOW BY LATITUDE AND
LONGITUDE AND IS DRAWN ON SPECIAL MASTER EXHIBIT NO. 1. 

AT ALL TIMES BETWEEN OCTOBER 3, 1952, AND APRIL 10, 1964, THE LIVE
THALWEG HAS MOVED AT A CONSTANT RATE.  THE BOUNDARY LOCATION FOR ANY
INTERVENING PERIOD AT ANY POINT IN DEADMAN'S BEND (FROM THE FOOT OF
GLASSCOCK CUTOFF TO RANGE 334.5 AHP) IS TO BE DETERMINED MATHEMATICALLY
BY CALCULATING THE CONSTANT RATE OF CHANGE FOR THAT PARTICULAR PLACE IN
DEADMAN'S BEND, USING THE 1952 AND 1964 THALWEGS DESCRIBED HERETOFORE
AND THE APPROPRIATE TIME DIFFERENTIALS. 

AT THE LATITUDE OF LOUISIANA STATE WELL NO. 1 THE LOCATION OF THE
BOUNDARY WAS AS FOLLOWS FROM OCTOBER 3, 1952, TO APRIL 10, 1964: 

OCTOBER 3, 1952                230 FEET EAST OF WELL 

APRIL 27, 1954                 80 FEET EAST OF WELL 

FEBRUARY 27, 1955              DIRECTLY ABOVE THE WELL 

APRIL 10, 1956           102 FEET WEST OF WELL 

APRIL 10, 1957     195 FEET WEST OF WELL 

APRIL 10, 1958                 289 FEET WEST OF WELL 

APRIL 10, 1959                 382 FEET WEST OF WELL 

APRIL 10, 1960                 476 FEET WEST OF WELL 

APRIL 10, 1961                 569 FEET WEST OF WELL 

APRIL 10, 1962                 663 FEET WEST OF WELL 

APRIL 10, 1963                 756 FEET WEST OF WELL 

APRIL 10, 1964                 850 FEET WEST OF WELL 

THE LOUISIANA STATE WELL NO. 1 BECAME LOCATED INSIDE THE BOUNDARY OF
MISSISSIPPI ON FEBRUARY 28, 1955. 

THE DESCRIPTION OF THE OCTOBER 3, 1952, LIVE THALWEG BY GEODETIC
POSITIONS (NORTH AMERICAN DATUM) IS AS FOLLOWS: 

BEGINNING AT THE FOOT OF GLASSCOCK CUTOFF AT A POINT ON RANGE 338.3
AHP, WHICH IS LAT.  31 DEG 19 MIN 07.0 SEC - LONG.  91 DEG 30 MIN 33.5
SEC. 

THENCE RUNNING SOUTHWARD THROUGH THE FOLLOWING POINTS:

           TABLE OMITTED. 

THE DESCRIPTION OF THE APRIL 10, 1964, LIVE THALWEG BY GEODETIC
POSITIONS (NORTH AMERICAN DATUM) IS AS FOLLOWS: 

BEGINNING AT THE FOOT OF GLASSCOCK CUTOFF AT A POINT ON RANGE 338.3
AHP, WHICH IS LAT.  31 DEG 19 MIN 07.0 SEC - LONG.  91 DEG 30 MIN 38.5
SEC. 

THENCE RUNNING SOUTHWARD THROUGH THE FOLLOWING POINTS:

           TABLE OMITTED. 

(3)  AS IT APPEARS THAT THE SPECIAL MASTER HAS COMPLETED HIS WORK, HE
IS HEREBY DISCHARGED WITH THE THANKS OF THE COURT. 

(4)  THE COSTS OF THIS SUIT ARE TO BE EQUALLY DIVIDED BETWEEN THE TWO
STATES. 
..END :


















HOLT V. ALLEGHANY CORP. 384 U.S. 28 


NO. 131.  ARGUED MARCH 21, 1966.  - DECIDED APRIL 18, 1966.* - NO. 131,
344 F.2D 571; NO. 132, 340 F.2D 311, CERTIORARI DISMISSED AS
IMPROVIDENTLY GRANTED. 

*TOGETHER WITH NO. 132, HOLT ET AL. V. KIRBY ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 


HOLT ET AL. V. ALLEGHANY CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE WRITS OF CERTIORARI ARE DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE BLACK DISSENTS FROM DISMISSAL OF THE WRITS AND WOULD
REVERSE THE JUDGMENTS OF THE COURT OF APPEALS AND DISTRICT COURTS
SUBSTANTIALLY FOR THE REASONS STATED IN JUDGE FRIENDLY'S DISSENT IN THE
COURT OF APPEALS, 333 F.2D 327, 338. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT FROM THE DISMISSAL
OF THE WRITS, BELIEVING THAT THESE CASES HAVING BEEN TAKEN FOR REVIEW
SHOULD BE ADJUDICATED ON THE MERITS. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE FORTAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 
..END :























ENGLE V. KERNER 384 U.S. 30 


NO. 1067.  DECIDED APRIL 18, 1966.  - APPEAL DISMISSED. 


ENGLE V. KERNER ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :



















AMERICAN GUILD V. SMITH 384 U.S. 30 


NO. 808.  DECIDED APRIL 18, 1966.  - CERTIORARI GRANTED; 349 F.2D 975,
VACATED AND REMANDED. 


AMERICAN GUILD OF VARIETY ARTISTS V. SMITH, DBA SMITH ENTERTAINMENT
AGENCY ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF
THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THAT COURT
FOR FURTHER PROCEEDINGS IN LIGHT OF UNITED MINE WORKERS OF AMERICA V.
GIBBS, 383 U.S. 715. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :











HOLLINGSHEAD V. WAINWRIGHT 384 U.S. 31 


NO. 457, MISC.  DECIDED APRIL 18, 1966.  - CERTIORARI GRANTED; JUDGMENT
REVERSED. 


HOLLINGSHEAD V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
DOUGLAS V. CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
THE PETITION FOR A WRIT OF CERTIORARI SHOULD BE DENIED. 
..END :













LONG V. PARKER 384 U.S. 32 


NO. 821, MISC.  DECIDED APRIL 18, 1966.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


LONG V. PARKER, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE SUGGESTION OF THE SOLICITOR GENERAL AND AN
EXAMINATION OF ALL OF THE PAPERS SUBMITTED, THE MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT OF CERTIORARI ARE
GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT
OF APPEALS FOR FURTHER PROCEEDINGS. 
..END :













POPE V. DAGGETT 384 U.S. 33 


NO. 837, MISC.  DECIDED APRIL 18, 1966.  - CERTIORARI GRANTED; 350 F.2D
296, VACATED AND REMANDED TO DISTRICT COURT WITH INSTRUCTIONS TO
DISMISS AS MOOT. 


POPE V. DAGGETT ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE REPRESENTATIONS OF THE SOLICITOR GENERAL
THAT THE RELIEF PETITIONER SEEKS IS PRESENTLY AVAILABLE DUE TO CHANGES
IN THE APPLICABLE PRISON REGULATIONS AND UPON AN EXAMINATION OF ALL OF
THE PAPERS SUBMITTED, THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS WITH INSTRUCTIONS TO DISMISS AS MOOT. 
..END :










RICHARDSON V. SEC. OF H.E.W. 384 U.S. 34 


NO. 874, MISC.  DECIDED APRIL 18, 1966.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


RICHARDSON V. SECRETARY OF HEALTH, EDUCATION AND WELFARE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE SUGGESTION OF THE SOLICITOR GENERAL AND AN
EXAMINATION OF ALL OF THE PAPERS SUBMITTED, THE MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT OF CERTIORARI ARE
GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT
OF APPEALS FOR FURTHER PROCEEDINGS. 
..END :













DEGREGORY V. ATTORNEY GENERAL OF NEW HAMPSHIRE 383 U.S. 825 


NO. 396.  ARGUED FEBRUARY 24, 1966.  - DECIDED APRIL 4, 1966.  - 106
N.H. 262, 209 A.2D 712, REVERSED. 


APPELLEE MADE AN INVESTIGATION UNDER A STATUTE AUTHORIZING HIM AS
ATTORNEY GENERAL OF NEW HAMPSHIRE TO INVESTIGATE WHENEVER HE HAD
INFORMATION HE DEEMED REASONABLE RELATING TO "VIOLATIONS" COVERING A
WIDE RANGE OF "SUBVERSIVE" ACTIVITIES DESIGNED TO OVERTHROW THE
CONSTITUTIONAL FORM OF THE STATE'S GOVERNMENT.  APPELLANT, ANSWERING
QUESTIONS RELATING TO THE PERIOD SINCE 1957, STATED THAT HE DID NOT
SERVE IN A SUBVERSIVE ROLE AND LACKED KNOWLEDGE OF CURRENT SUBVERSION. 
HE REFUSED, WITHOUT ASSERTING THE PRIVILEGE AGAINST SELF-INCRIMINATION,
TO ANSWER QUESTIONS ABOUT EARLIER PERIODS WHICH RESPONDENT ASKED IN
RELIANCE ON A 1955 REPORT CONNECTING APPELLANT WITH THE COMMUNIST PARTY
ONLY UP TO 10 YEARS BEFORE THE INVESTIGATION.  THE TRIAL COURT FOUND
APPELLANT GUILTY OF CONTEMPT AND THE STATE SUPREME COURT AFFIRMED. 
HELD: ON THE RECORD HERE THE STATE'S INTEREST IN PROTECTING ITSELF
AGAINST SUBVERSION IS TOO REMOTE TO OVERRIDE APPELLANT'S FIRST
AMENDMENT RIGHT TO POLITICAL AND ASSOCIATIONAL PRIVACY.  PP.  828-830. 

(A)  NO ATTACK IS MADE ON THE TRUTHFULNESS OF APPELLANT'S TESTIMONY
THAT HE HAD NOT BEEN INVOLVED WITH THE COMMUNIST PARTY SINCE 1957 AND
HAD NO KNOWLEDGE OF COMMUNIST ACTIVITIES DURING THAT PERIOD.   P. 829. 

(B)  THE STALENESS OF THE BASIS FOR THE INVESTIGATION AND THE SUBJECT
MATTER, WHICH WAS OF HISTORICAL RATHER THAN CURRENT INTEREST, MADE
INDEFENSIBLE COMPELLED DISCLOSURE OF APPELLANT'S POLITICAL AND
ASSOCIATIONAL PAST.  P. 829. 

(C)  THE FIRST AMENDMENT PROTECTS THAT PRIVACY AND IT MAY NOT BE
BREACHED WHERE THERE IS NO SHOWING OF A COMPELLING STATE INTEREST.  P.
829. 

(D)  THERE IS NO EVIDENCE HERE OF ANY COMMUNIST MOVEMENT IN NEW
HAMPSHIRE OR SHOWING OF DANGER OF SEDITION TO THE STATE, AND THUS NO
"NEXUS" BETWEEN APPELLANT AND SUBVERSIVE ACTIVITIES IN THE STATE. 
UPHAUS V. WYMAN, 360 U.S. 72, DISTINGUISHED.  PP. 829-830. 

DEGREGORY V. ATTORNEY GENERAL OF NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BRENNAN. 

THIS IS THE THIRD TIME THAT THE CONSTITUTIONAL RIGHTS OF APPELLANT
CHALLENGED IN INVESTIGATIONS BY NEW HAMPSHIRE INTO SUBVERSION HAVE BEEN
BROUGHT TO US.  (FN1)  THE PRESENT CASE STEMS FROM AN INVESTIGATION BY
THE ATTORNEY GENERAL OF THE STATE UNDER REV. STAT. ANN. SEC.  588:8-A
(1965 SUPP.), ENACTED IN 1957, WHICH PROVIDES IN PART: 

"AT ANY TIME WHEN THE ATTORNEY GENERAL HAS INFORMATION WHICH HE DEEMS
REASONABLE OR RELIABLE RELATING TO VIOLATIONS OF THE PROVISIONS OF THIS
CHAPTER HE SHALL MAKE FULL AND COMPLETE INVESTIGATION THEREOF AND SHALL
REPORT TO THE GENERAL COURT THE RESULTS OF THIS INVESTIGATION, TOGETHER
WITH HIS RECOMMENDATIONS, IF ANY, FOR LEGISLATION  ...  .  THE ATTORNEY
GENERAL IS HEREBY AUTHORIZED TO MAKE PUBLIC SUCH INFORMATION RECEIVED
BY HIM, TESTIMONY GIVEN BEFORE HIM, AND MATTERS HANDLED BY HIM AS HE
DEEMS FIT TO EFFECTUATE THE PURPOSES HEREOF." 

THE "VIOLATIONS" COVER A WIDE RANGE OF "SUBVERSIVE" ACTIVITIES
DESIGNED TO "OVERTHROW, DESTROY OR ALTER, OR TO ASSIST IN THE
OVERTHROW, DESTRUCTION OR ALTERATION OF, THE CONSTITUTIONAL FORM OF THE
GOVERNMENT  ...  OF THE STATE OF NEW HAMPSHIRE, OR ANY POLITICAL
SUBDIVISION  ...  BY FORCE, OR VIOLENCE."  (FN2)  SEC. 588:1. 

APPELLANT WAS WILLING TO ANSWER QUESTIONS CONCERNING HIS RELATIONSHIP
WITH AND KNOWLEDGE OF COMMUNIST ACTIVITIES SINCE 1957, AND IN FACT HE
DID ANSWER THEM.  (FN3)  BUT HE REFUSED TO ANSWER A SERIES OF QUESTIONS
PUT HIM CONCERNING EARLIER PERIODS.  (FN4)  HIS REFUSAL, NOT BEING
BASED ON THE FIFTH AMENDMENT, RAISED IMPORTANT QUESTIONS UNDER THE
FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT.  HE WAS COMMITTED TO JAIL FOR A PERIOD OF ONE YEAR OR UNTIL
HE PURGED HIMSELF OF CONTEMPT.  THAT JUDGMENT WAS AFFIRMED BY THE NEW
HAMPSHIRE SUPREME COURT.  106 N.H. 262, 209 A.2D 712.  THE CASE IS HERE
ON APPEAL.  382 U.S. 877. 

THE SUBSTANTIALITY OF APPELLANT'S FIRST AMENDMENT CLAIM CAN BEST BE
SEEN BY CONSIDERING WHAT HE WAS ASKED TO DO.  APPELLANT HAD ALREADY
TESTIFIED THAT HE HAD NOT BEEN INVOLVED WITH THE COMMUNIST PARTY SINCE
1957 AND THAT HE HAD NO KNOWLEDGE OF COMMUNIST ACTIVITIES DURING THAT
PERIOD.  THE ATTORNEY GENERAL FURTHER SOUGHT TO HAVE HIM DISCLOSE
INFORMATION RELATING TO HIS POLITICAL ASSOCIATIONS OF AN EARLIER DAY,
THE MEETINGS HE ATTENDED, AND THE VIEWS EXPRESSED AND IDEAS ADVOCATED
AT ANY SUCH GATHERINGS.  (FN5)  INDEED, THE ATTORNEY GENERAL HERE
RELIED ENTIRELY UPON A 1955 REPORT ON SUBVERSIVE ACTIVITIES IN NEW
HAMPSHIRE TO JUSTIFY RENEWED INVESTIGATION OF APPELLANT.   THE REPORT
CONNECTS APPELLANT WITH THE COMMUNIST PARTY ONLY UNTIL 1953, OVER 10
YEARS PRIOR TO THE INVESTIGATION GIVING RISE TO THE PRESENT CONTEMPT. 

ON THE BASIS OF OUR PRIOR CASES, APPELLANT HAD EVERY REASON TO
ANTICIPATE THAT THE DETAILS OF HIS POLITICAL ASSOCIATIONS TO WHICH HE
MIGHT TESTIFY WOULD BE REPORTED IN A PAMPHLET PURPORTING TO DESCRIBE
THE NATURE OF SUBVERSION IN NEW HAMPSHIRE.  (SEE UPHAUS V. WYMAN, 360
U.S. 72, 88-95, BRENNAN, J., DISSENTING.)  ADMITTEDLY, "EXPOSURE - IN
THE SENSE OF DISCLOSURE - IS AN INESCAPABLE INCIDENT OF AN
INVESTIGATION INTO THE PRESENCE OF SUBVERSIVE PERSONS WITHIN A STATE." 
UPHAUS V. WYMAN, SUPRA, AT 81.  BUT WHATEVER JUSTIFICATION MAY HAVE
SUPPORTED SUCH EXPOSURE IN UPHAUS IS ABSENT HERE; THE STALENESS OF BOTH
THE BASIS FOR THE INVESTIGATION AND ITS SUBJECT MATTER MAKES
INDEFENSIBLE SUCH EXPOSURE OF ONE'S ASSOCIATIONAL AND POLITICAL PAST -
EXPOSURE WHICH IS OBJECTIONABLE AND DAMAGING IN THE EXTREME TO ONE
WHOSE ASSOCIATIONS AND POLITICAL VIEWS DO NOT COMMAND MAJORITY
APPROVAL.  (FN6) 

"THE FIRST AMENDMENT MAY BE INVOKED AGAINST INFRINGEMENT OF THE
PROTECTED FREEDOMS BY LAW OR BY LAW-MAKING."  WATKINS V. UNITED STATES,
354 U.S. 178, 197.  INVESTIGATION IS A PART OF LAWMAKING AND THE FIRST
AMENDMENT, AS WELL AS THE FIFTH, STANDS AS A BARRIER TO STATE INTRUSION
OF PRIVACY.  NO ATTACK IS MADE ON THE TRUTHFULNESS OF THE QUESTIONS
ANSWERED BY APPELLANT STATING THAT HE DOES NOT SERVE IN A SUBVERSIVE
ROLE AND LACKS KNOWLEDGE OF ANY CURRENT SUBVERSION.  THERE IS NO
SHOWING OF "OVERRIDING AND COMPELLING STATE INTEREST" (GIBSON V.
FLORIDA LEGISLATIVE COMM., 372 U.S. 539, 546) THAT WOULD WARRANT
INTRUSION INTO THE REALM OF POLITICAL AND ASSOCIATIONAL PRIVACY
PROTECTED BY THE FIRST AMENDMENT.  THE INFORMATION BEING SOUGHT WAS
HISTORICAL, NOT CURRENT.  LAWMAKING AT THE INVESTIGATORY STAGE MAY
PROPERLY PROBE HISTORIC EVENTS FOR ANY LIGHT THAT MAY BE THROWN ON
PRESENT CONDITIONS AND PROBLEMS.  BUT THE FIRST AMENDMENT PREVENTS USE
OF THE POWER TO INVESTIGATE ENFORCED BY THE CONTEMPT POWER TO PROBE AT
WILL AND WITHOUT RELATION TO EXISTING NEED.  WATKINS V. UNITED STATES,
SUPRA, AT 197-200.  THE PRESENT RECORD IS DEVOID OF ANY EVIDENCE THAT
THERE IS ANY COMMUNIST MOVEMENT IN NEW HAMPSHIRE.  THE 1955 REPORT
DEALS PRIMARILY WITH "WORLD-WIDE COMMUNISM" AND THE FEDERAL
GOVERNMENT.  THERE IS NO SHOWING WHATSOEVER OF PRESENT DANGER OF
SEDITION AGAINST THE STATE ITSELF, THE ONLY AREA TO WHICH THE AUTHORITY
OF THE STATE EXTENDS.  (FN7)  THERE IS THUS ABSENT THAT "NEXUS" BETWEEN
APPELLANT AND SUBVERSIVE ACTIVITIES IN NEW HAMPSHIRE WHICH THE COURT
FOUND TO EXIST IN UPHAUS V. WYMAN, SUPRA, AT 79.  NEW HAMPSHIRE'S
INTEREST ON THIS RECORD IS TOO REMOTE AND CONJECTURAL TO OVERRIDE THE
GUARANTEE OF THE FIRST AMENDMENT THAT A PERSON CAN SPEAK OR NOT, AS HE
CHOOSES, FREE OF ALL GOVERNMENTAL COMPULSION.  REVERSED. 

FN1  DEGREGORY V. WYMAN, 360 U.S. 717; DEGREGORY V. ATTORNEY GENERAL,
368 U.S. 19.  AFTER REMAND OF THE LATTER CASE APPELLANT PURGED HIMSELF
OF CONTEMPT BY ANSWERING IN THE NEGATIVE THE QUESTION "ARE YOU
PRESENTLY A MEMBER OF THE COMMUNIST PARTY?"  SUBSEQUENTLY, NEW HEARINGS
WERE HELD AND IT IS OUT OF THEM THAT THE PRESENT CASE ARISES. 

FN2  ALTHOUGH THE ACT PURPORTS TO EXTEND ITS PROTECTION TO THE
FEDERAL GOVERNMENT AS WELL, THAT FIELD HAS BEEN PRE-EMPTED.  SEE
PENNSYLVANIA V. NELSON, 350 U.S. 497. 

FN3  "I AM NOT NOW A MEMBER OF THE COMMUNIST PARTY AND HAVE NOT BEEN
AT ANY TIME SINCE THIS AUTHORITY UNDER WHICH I WAS SUBJECT HAS BEEN ON
THE STATUTE BOOKS; THAT I HAVE NO KNOWLEDGE OF ANY COMMUNISTIC
ACTIVITIES IN NEW HAMPSHIRE DURING THIS PERIOD, OR ANY VIOLATIONS OF
LAW DURING THIS PERIOD OF SIX AND ONE-HALF YEARS.  IN FACT, I HAVE NOT
EVEN BEEN AWARE OF THE EXISTENCE OF ANY COMMUNIST PARTY IN THE STATE OF
NEW HAMPSHIRE AT ANY TIME THAT THIS AUTHORITY HAS BEEN ON THE STATUTE
BOOKS." 

FN4  "HAVE YOU EVER BEEN A MEMBER OF THE COMMUNIST PARTY? 

"WHEN DID YOU JOIN THE COMMUNIST PARTY? 

"WERE YOU A PAID MEMBER OF THE COMMUNIST PARTY? 

"WERE YOU AN OFFICER OF THE COMMUNIST PARTY? 

"DID YOU EVER HAVE ACCESS TO OR CONTROL OF MEMBERSHIP OR FINANCIAL
RECORDS OF THE COMMUNIST PARTY IN NEW HAMPSHIRE? 

"DID YOU ATTEND COMMUNIST PARTY MEETINGS IN NEW HAMPSHIRE? 

"TO WHAT EXTENT DID COMMUNIST PARTY DISTRICT I IN BOSTON,
MASSACHUSETTS, HAVE CONTROL OVER THE PARTY'S ACTIVITIES IN NEW
HAMPSHIRE? 

"DID YOU EVER ATTEND ANY COMMUNIST PARTY MEETINGS IN NEW HAMPSHIRE
WHEREIN ANY PERSON ADVOCATED TO  ...  OVERTHROW, DESTROY OR ALTER THE
GOVERNMENT OF THE STATE OF NEW HAMPSHIRE, BY FORCE OR VIOLENCE? 

"DID YOU EVER ATTEND ANY COMMUNIST PARTY MEETINGS IN NEW HAMPSHIRE
WHERE ANY PERSON ADVOCATED, ABETTED, ADVISED OR TAUGHT BY ANY MEANS THE
COMMISSION OF AN ACT TO CONSTITUTE A CLEAR AND PRESENT DANGER TO THE
SECURITY OF THIS STATE? 

"DID YOU OR ANY PERSON KNOWN TO YOU DESTROY ANY BOOKS, RECORDS OR
FILES, OR SECRETE ANY FUNDS IN THIS STATE BELONGING TO OR OWNED BY THE
COMMUNIST PARTY? 

"DID YOU AT ANY TIME PARTICIPATE OR ASSIST IN THE FORMATION OF OR
CONTRIBUTE TO THE SUPPORT OF THE COMMUNIST PARTY IN NEW HAMPSHIRE?" 

FN5  PROSECUTION FOR THESE ACTIVITIES WAS APPARENTLY BARRED BY THE
SIX-YEAR STATE STATUTE OF LIMITATIONS, N.H. REV. STAT. ANN. SEC. 603:1,
LONG BEFORE THE INVESTIGATION IN 1964. 

FN6  SEE GIBSON V. FLORIDA LEGISLATIVE COMM., 372 U.S. 539, 543-544;
BATES V. LITTLE ROCK, 361 U.S. 516, 523-524; NAACP V. ALABAMA, 357 U.S.
449, 462-463.  CF. SHELTON V. TUCKER, 364 U.S. 479, 485-487; TALLEY V.
CALIFORNIA, 362 U.S. 60, 64-65. 

FN7  PENNSYLVANIA V. NELSON, SUPRA, N. 2. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

THE COURT APPEARS TO HOLD THAT THERE IS ON THE RECORD SO LIMITED A
LEGISLATIVE INTEREST AND SO LITTLE RELATION BETWEEN IT AND THE
INFORMATION SOUGHT FROM APPELLANT THAT THE CONSTITUTION SHIELDS HIM
FROM HAVING TO ANSWER THE QUESTIONS PUT TO HIM.*  NEW HAMPSHIRE IN MY
VIEW SHOULD BE FREE TO INVESTIGATE THE EXISTENCE OR NONEXISTENCE OF
COMMUNIST PARTY SUBVERSION, OR ANY OTHER LEGITIMATE SUBJECT OF CONCERN
TO THE STATE, WITHOUT FIRST BEING ASKED TO PRODUCE EVIDENCE OF THE VERY
TYPE TO BE SOUGHT IN THE COURSE OF THE INQUIRY.  THEN, GIVEN THAT THE
SUBJECT OF INVESTIGATION IN THIS CASE IS A PERMISSIBLE ONE, THE
APPELLANT SEEMS TO ME A WITNESS WHO COULD PROPERLY BE CALLED TO TESTIFY
ABOUT IT; I CANNOT SAY AS A CONSTITUTIONAL MATTER THAT INQUIRY INTO THE
CURRENT OPERATIONS OF THE LOCAL COMMUNIST PARTY COULD NOT BE ADVANCED
BY KNOWLEDGE OF ITS OPERATIONS A DECADE AGO.  BELIEVING THAT "OUR
FUNCTION  ...  IS PURELY ONE OF CONSTITUTIONAL ADJUDICATION" AND "NOT
TO PASS JUDGMENT UPON THE GENERAL WISDOM OR EFFICACY" OF THE
INVESTIGATING ACTIVITIES UNDER SCRUTINY, BARENBLATT V. UNITED STATES,
360 U.S. 109, 125, I WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF
NEW HAMPSHIRE. 

*NO PLEA OF A PRIVILEGE AGAINST SELF-INCRIMINATION WAS INTERPOSED BY
THE WITNESS. 
..END :






DRUM V. SEAWELL 383 U.S. 831 


NO. 1128.  DECIDED APRIL 4, 1966.  - 249 F. SUPP. 877, AFFIRMED. 


DRUM ET AL. V. SEAWELL, CHAIRMAN OF THE NORTH CAROLINA STATE BOARD OF
ELECTIONS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO ADVANCE AND EXPEDITE CONSIDERATION IS GRANTED.  THE
JUDGMENT IS AFFIRMED. 
..END :
















MILLER V. VIRGINIA 383 U.S. 831 


NO. 196, MISC.  DECIDED APRIL 4, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MILLER V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT IN TREATING THE PAPERS AS
A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI SHOULD BE GRANTED. 
..END :













BALTIMORE & OHIO R. CO. V. ATCHISON, TOPEKA & SANTA FE R. CO. 383 U.S.
832 


NO. 143.  DECIDED APRIL 4, 1966.  - 238 F. SUPP. 528, VACATED AND
REMANDED WITH INSTRUCTIONS TO DISMISS THE CASE AS MOOT. 


BALTIMORE & OHIO RAILROAD CO. ET AL. V. ATCHISON, TOPEKA & SANTA FE
RAILWAY CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

WE TREAT THE ORDER OF THE DISTRICT COURT AS DIVISIBLE FROM THE
APPEALS IN NO. 159, CHICAGO & NORTH WESTERN R. CO. V. ATCHISON, TOPEKA
& SANTA FE R. CO., AND NO. 576, UNITED STATES V. ATCHISON, TOPEKA &
SANTA FE R. CO. UPON CONSIDERATION OF THE MEMORANDA OF CERTAIN
APPELLEES AND AN EXAMINATION OF THE ENTIRE RECORD, THE JUDGMENT IS
VACATED AS RESPECTS THE PARTIES TO THIS APPEAL AND TO THAT EXTENT THE
CAUSE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS
THE CASE AS MOOT. 
..END :








ESTATE OF LEYMAN V. COMMISSIONER OF INTERNAL REVENUE 383 U.S. 832 


NO. 385.  DECIDED APRIL 4, 1966.  - CERTIORARI GRANTED; 344 F.2D 763,
VACATED AND REMANDED. 


ESTATE OF LEYMAN V. COMMISSIONER OF INTERNAL REVENUE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

UPON THE CONSENT OF THE SOLICITOR GENERAL AND CONSIDERATION OF THE
ENTIRE RECORD, THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE
JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT IS
VACATED AND THE CAUSE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO
REMAND IT TO THE UNITED STATES TAX COURT FOR COMPUTATION AND IMPOSITION
OF CIVIL FRAUD PENALTY IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW
89-359, 80 STAT. 28. 
..END :











JENKINS V. MARYLAND 383 U.S. 834 


NO. 605, MISC.  DECIDED APRIL 4, 1966.  - CERTIORARI GRANTED; 238 MD.
451, 209 A.2D 616, VACATED AND REMANDED. 


JENKINS V. MARYLAND. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
MARYLAND. 

PER CURIAM. 

UPON CONSIDERATION OF THE ENTIRE RECORD AND THE CONSENT OF THE
ATTORNEY GENERAL OF MARYLAND, THE MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.   THE
MOTION TO REMAND IS ALSO GRANTED, THE JUDGMENT OF THE COURT OF APPEALS
OF MARYLAND IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER CONSIDERATION IN LIGHT OF ITS DECISIONS IN SCHOWGUROW V.
MARYLAND, 240 MD. 121, 213 A.2D 475, AND SMITH V. MARYLAND, 240 MD.
464, 214 A.2D 563.  THIS DISPOSITION OF THE CASE IS WITHOUT PREJUDICE
TO ANY OTHER QUESTIONS PRESENTED BY THE PETITION FOR A WRIT OF
CERTIORARI. 
..END :








UNITED MINE WORKERS OF AMERICA V. GIBBS 383 U.S. 715 


NO. 243.  ARGUED JANUARY 20, 1966.  - DECIDED MARCH 28, 1966.  - 343
F.2D 609, REVERSED. 


A COAL COMPANY CLOSED A MINE IN TENNESSEE AND LAID OFF MINERS
BELONGING TO ONE OF PETITIONER'S LOCAL UNIONS.  THEREAFTER THE COMPANY,
THROUGH A SUBSIDIARY, ATTEMPTED TO OPEN A NEW MINE NEARBY WITH MEMBERS
OF A RIVAL UNION.  RESPONDENT WAS HIRED AS MINE SUPERINTENDENT AND
GIVEN A CONTRACT TO TRUCK COAL TO THE NEAREST RAIL LOADING POINT.  ON
AUGUST 15 AND 16, 1960, ARMED MEMBERS OF PETITIONER'S LOCAL FORCIBLY
PREVENTED THE OPENING OF THE MINE, THREATENED RESPONDENT, AND ASSAULTED
AN ORGANIZER FOR THE RIVAL UNION.  PETITIONER'S AREA REPRESENTATIVE WAS
AWAY AT A UNION BOARD MEETING WHEN HE LEARNED OF THE VIOLENCE.  HE
RETURNED LATE ON AUGUST 16 WITH INSTRUCTIONS TO ESTABLISH A LIMITED
PICKET LINE, PREVENT FURTHER VIOLENCE, AND TO SEE THAT NEIGHBORING
MINES WERE NOT STRUCK.  THERE WAS NO FURTHER VIOLENCE AT THE MINE SITE;
A PICKET LINE WAS MAINTAINED FOR NINE MONTHS; AND NO FURTHER EFFORT WAS
MADE TO OPEN THE MINE.  RESPONDENT LOST HIS JOB AS SUPERINTENDENT,
NEVER PERFORMED HIS HAULAGE CONTRACT, AND ALLEGEDLY LOST OTHER TRUCKING
CONTRACTS AND MINE LEASES BECAUSE OF A CONCERTED UNION PLAN AGAINST
HIM.  SUING ONLY THE INTERNATIONAL UNION, HE SOUGHT RECOVERY UNDER SEC.
303 OF THE LABOR MANAGEMENT RELATIONS ACT AND THE COMMON LAW OF
TENNESSEE.  JURISDICTION WAS PREMISED ON ALLEGATIONS OF SECONDARY
BOYCOTTS UNDER SEC. 303; AND THE STATE LAW CLAIM, FOR WHICH
JURISDICTION WAS BASED ON THE DOCTRINE OF PENDENT JURISDICTION,
ASSERTED AN UNLAWFUL CONSPIRACY AND BOYCOTT TO INTERFERE WITH
RESPONDENT'S CONTRACTS OF EMPLOYMENT AND HAULAGE.  THE JURY FOUND THAT
PETITIONER HAD VIOLATED BOTH SEC. 303 AND STATE LAW AND RESPONDENT WAS
AWARDED ACTUAL AND PUNITIVE DAMAGES.  ON MOTION, THE TRIAL COURT SET
ASIDE THE DAMAGES AWARD WITH RESPECT TO THE HAULAGE CONTRACT ON THE
GROUND THAT DAMAGE WAS NOT PROVED.  IT ALSO HELD THAT UNION PRESSURE ON
RESPONDENT'S EMPLOYER TO DISCHARGE HIM WOULD CONSTITUTE ONLY A PRIMARY
DISPUTE WITH THE EMPLOYER, NOT COGNIZABLE UNDER SEC. 303.  INTERFERENCE
WITH EMPLOYMENT WAS COGNIZABLE AS A STATE CLAIM AND A REMITTED AWARD
WAS SUSTAINED THEREON.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE DISTRICT COURT PROPERLY ENTERTAINED JURISDICTION OF THE CLAIM
BASED ON STATE LAW.  PP. 721-729. 

(A)  THE STATE LAW CLAIM, BASED IN PART ON VIOLENCE AND INTIMIDATION,
WAS NOT PRE-EMPTED BY SEC. 303.  P. 721. 

(B)  PENDENT JURISDICTION, IN THE SENSE OF JUDICIAL POWER, EXISTS
WHENEVER THERE IS A SUBSTANTIAL FEDERAL CLAIM AND THE RELATIONSHIP
BETWEEN IT AND THE ASSERTED STATE CLAIMS PERMITS THE CONCLUSION THAT
THE ENTIRE ACTION BEFORE THE COURT COMPRISES ONE "CASE."  P. 725. 

(C)  PENDENT JURISDICTION IS A DOCTRINE OF DISCRETION, JUSTIFIED BY
JUDICIAL ECONOMY, CONVENIENCE AND FAIRNESS TO LITIGANTS.  P. 726. 

(D)  THE DISTRICT COURT DID NOT EXCEED ITS DISCRETION IN EXERCISING
JURISDICTION OVER THE STATE LAW CLAIM.  PP. 727-729. 

2.  STATE LAW REMEDIES AGAINST VIOLENCE AND THREATS OF VIOLENCE
ARISING IN LABOR DISPUTES HAVE BEEN SUSTAINED AGAINST THE CHALLENGE OF
PRE-EMPTION BY FEDERAL LABOR LEGISLATION, BUT THE SCOPE OF SUCH
REMEDIES IS CONFINED TO THE DIRECT CONSEQUENCES OF SUCH CONDUCT.  PP.
729-731. 

3.  ALTHOUGH PETITIONER CONCEDES THAT VIOLENCE WHICH WOULD JUSTIFY
APPLICATION OF SUCH LIMITED STATE TORT LAW OCCURRED DURING THE FIRST
TWO DAYS OF THE STRIKE, IT APPEARED THAT NEITHER THE PLEADINGS,
ARGUMENTS OF COUNSEL, NOR THE INSTRUCTIONS TO THE JURY ADEQUATELY
DEFINED THE AREA WITHIN WHICH DAMAGES COULD BE AWARDED UNDER STATE LAW,
WHERE THE TORT CLAIMED, ESSENTIALLY A "CONSPIRACY" TO INTERFERE WITH
RESPONDENT'S CONTRACTUAL RELATIONS, WAS NOT ITSELF SO LIMITED.  PP. 732
735. 

4.  SINCE PETITIONER WAS NOT CLEARLY PROVED TO HAVE PARTICIPATED IN
OR AUTHORIZED THE TWO DAYS' VIOLENCE, NOR TO HAVE RATIFIED IT OR BUILT
ITS PICKETING CAMPAIGN UPON THE FEAR OF THE VIOLENCE ENGENDERED, THE
SPECIAL PROOF REQUIREMENTS OF SEC. 6 OF THE NORRIS-LA GUARDIA ACT WERE
NOT SATISFIED, AND PETITIONER CANNOT BE HELD LIABLE TO RESPONDENT UNDER
STATE LAW.  PP. 735-742. 

(A)  WHILE THE LABOR MANAGEMENT RELATIONS ACT EXPRESSLY PROVIDES THAT
FOR PURPOSES OF THAT ACT, INCLUDING SEC. 303, THE UNION'S
RESPONSIBILITY FOR ACTS OF ITS MEMBERS AND OFFICERS IS TO BE MEASURED
BY ORDINARY AGENCY STANDARDS RATHER THAN SEC. 6'S MORE STRINGENT
STANDARD OF "CLEAR PROOF," IT DOES NOT DISPLACE SEC. 6 FOR OTHER
PURPOSES AND SEC. 6 PLAINLY APPLIES TO FEDERAL COURT HEARINGS OF STATE
TORT CLAIMS ARISING OUT OF LABOR DISPUTES.  PP. 736-737. 

(B)  THE "CLEAR PROOF" LANGUAGE OF SEC. 6 IS SIMILAR TO "CLEAR,
UNEQUIVOCAL, AND CONVINCING PROOF," USED ELSEWHERE.  ALTHOUGH UNDER
THIS STANDARD THE PLAINTIFF IN A CIVIL SUIT DOES NOT HAVE TO SATISFY
THE CRIMINAL STANDARD OF REASONABLE DOUBT, HE IS REQUIRED TO PERSUADE
BY A SUBSTANTIAL MARGIN AND TO COME FORWARD WITH MORE THAN A BARE
PREPONDERANCE OF THE EVIDENCE.  P. 737. 

(C)  RESPONDENT DID NOT PRESENT CLEAR PROOF THAT PETITIONER
AUTHORIZED OR PARTICIPATED IN THE VIOLENCE, OR THAT IT RATIFIED THE
VIOLENCE WHICH HAD OCCURRED, AND ACCORDINGLY CANNOT RECOVER FROM
PETITIONER.  PP. 738-742. 

UNITED MINE WORKERS OF AMERICA V. GIBBS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT PAUL GIBBS WAS AWARDED COMPENSATORY AND PUNITIVE DAMAGES
IN THIS ACTION AGAINST PETITIONER UNITED MINE WORKERS OF AMERICA (UMW)
FOR ALLEGED VIOLATIONS OF SEC. 303 OF THE LABOR MANAGEMENT RELATIONS
ACT, 1947, 61 STAT. 158, AS AMENDED, (FN1) AND OF THE COMMON LAW OF
TENNESSEE.  THE CASE GREW OUT OF THE RIVALRY BETWEEN THE UNITED MINE
WORKERS AND THE SOUTHERN LABOR UNION OVER REPRESENTATION OF WORKERS IN
THE SOUTHERN APPALACHIAN COAL FIELDS.  TENNESSEE CONSOLIDATED COAL
COMPANY, NOT A PARTY HERE, LAID OFF 100 MINERS OF THE UMW'S LOCAL 5881
WHEN IT CLOSED ONE OF ITS MINES IN SOUTHERN TENNESSEE DURING THE SPRING
OF 1960.  LATE THAT SUMMER, GRUNDY COMPANY, A WHOLLY OWNED SUBSIDIARY
OF CONSOLIDATED, HIRED RESPONDENT AS MINE SUPERINTENDENT TO ATTEMPT TO
OPEN A NEW MINE ON CONSOLIDATED'S PROPERTY AT NEARBY GRAY'S CREEK
THROUGH USE OF MEMBERS OF THE SOUTHERN LABOR UNION.  AS PART OF THE
ARRANGEMENT, GRUNDY ALSO GAVE RESPONDENT A CONTRACT TO HAUL THE MINE'S
COAL TO THE NEAREST RAILROAD LOADING POINT. 

ON AUGUST 15 AND 16, 1960, ARMED MEMBERS OF LOCAL 5881 FORCIBLY
PREVENTED THE OPENING OF THE MINE, THREATENING RESPONDENT AND BEATING
AN ORGANIZER FOR THE RIVAL UNION.  (FN2)  THE MEMBERS OF THE LOCAL
BELIEVED CONSOLIDATED HAD PROMISED THEM THE JOBS AT THE NEW MINE; THEY
INSISTED THAT IF ANYONE WOULD DO THE WORK, THEY WOULD.  AT THIS TIME,
NO REPRESENTATIVE OF THE UMW, THEIR INTERNATIONAL UNION, WAS PRESENT. 
GEORGE GILBERT, THE UMW'S FIELD REPRESENTATIVE FOR THE AREA INCLUDING
LOCAL 5881, WAS AWAY AT MIDDLESBORO, KENTUCKY, ATTENDING AN EXECUTIVE
BOARD MEETING WHEN THE MEMBERS OF THE LOCAL DISCOVERED GRUNDY'S PLAN;
(FN3) HE DID NOT RETURN TO THE AREA UNTIL LATE IN THE DAY OF AUGUST
16.  THERE WAS UNCONTRADICTED TESTIMONY THAT HE FIRST LEARNED OF THE
VIOLENCE WHILE AT THE MEETING, AND RETURNED WITH EXPLICIT INSTRUCTIONS
FROM HIS INTERNATIONAL UNION SUPERIORS TO ESTABLISH A LIMITED PICKET
LINE, TO PREVENT ANY FURTHER VIOLENCE, AND TO SEE TO IT THAT THE STRIKE
DID NOT SPREAD TO NEIGHBORING MINES.  THERE WAS NO FURTHER VIOLENCE AT
THE MINE SITE; A PICKET LINE WAS MAINTAINED THERE FOR NINE MONTHS; AND
NO FURTHER ATTEMPTS WERE MADE TO OPEN THE MINE DURING THAT PERIOD. 
(FN4) 

RESPONDENT LOST HIS JOB AS SUPERINTENDENT, AND NEVER ENTERED INTO
PERFORMANCE OF HIS HAULAGE CONTRACT.  HE TESTIFIED THAT HE SOON BEGAN
TO LOSE OTHER TRUCKING CONTRACTS AND MINE LEASES HE HELD IN NEARBY
AREAS.  CLAIMING THESE EFFECTS TO BE THE RESULT OF A CONCERTED UNION
PLAN AGAINST HIM, HE SOUGHT RECOVERY NOT AGAINST LOCAL 5881 OR ITS
MEMBERS, BUT ONLY AGAINST PETITIONER, THE INTERNATIONAL UNION.  THE
SUIT WAS BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF TENNESSEE, AND JURISDICTION WAS PREMISED ON ALLEGATIONS OF
SECONDARY BOYCOTTS UNDER SEC. 303.  THE STATE LAW CLAIM, FOR WHICH
JURISDICTION WAS BASED UPON THE DOCTRINE OF PENDENT JURISDICTION,
ASSERTED "AN UNLAWFUL CONSPIRACY AND AN UNLAWFUL BOYCOTT AIMED AT HIM
AND GRUNDY TO MALICIOUSLY, WANTONLY AND WILLFULLY INTERFERE WITH HIS
CONTRACT OF EMPLOYMENT AND WITH HIS CONTRACT OF HAULAGE."  (FN5) 

THE TRIAL JUDGE REFUSED TO SUBMIT TO THE JURY THE CLAIMS OF PRESSURE
INTENDED TO CAUSE MINING FIRMS OTHER THAN GRUNDY TO CEASE DOING
BUSINESS WITH GIBBS; HE FOUND THOSE CLAIMS UNSUPPORTED BY THE
EVIDENCE.  THE JURY'S VERDICT WAS THAT THE UMW HAD VIOLATED BOTH SEC.
303 AND STATE LAW.  GIBBS WAS AWARDED $60,000 AS DAMAGES UNDER THE
EMPLOYMENT CONTRACT AND $14,500 UNDER THE HAULAGE CONTRACT; HE WAS ALSO
AWARDED $100,000 PUNITIVE DAMAGES.  ON MOTION, THE TRIAL COURT SET
ASIDE THE AWARD OF DAMAGES WITH RESPECT TO THE HAULAGE CONTRACT ON THE
GROUND THAT DAMAGE WAS UNPROVED.  IT ALSO HELD THAT UNION PRESSURE ON
GRUNDY TO DISCHARGE RESPONDENT AS SUPERVISOR WOULD CONSTITUTE ONLY A
PRIMARY DISPUTE WITH GRUNDY, AS RESPONDENT'S EMPLOYER, AND HENCE WAS
NOT COGNIZABLE AS A CLAIM UNDER SEC. 303.  INTERFERENCE WITH THE
EMPLOYMENT RELATIONSHIP WAS COGNIZABLE AS A STATE CLAIM, HOWEVER, AND A
REMITTED AWARD WAS SUSTAINED ON THE STATE LAW CLAIM.  (FN6)  220 F.
SUPP. 871.  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED.  343
F.2D 609.  WE GRANTED CERTIORARI.  382 U.S. 809.  WE REVERSE. 

   I. 

A THRESHOLD QUESTION IS WHETHER THE DISTRICT COURT PROPERLY
ENTERTAINED JURISDICTION OF THE CLAIM BASED ON TENNESSEE LAW.  THERE
WAS NO NEED TO DECIDE A LIKE QUESTION IN TEAMSTERS UNION V. MORTON, 377
U.S. 252, SINCE THE PERTINENT STATE CLAIM THERE WAS BASED ON PEACEFUL
SECONDARY ACTIVITIES AND WE HELD THAT STATE LAW BASED ON SUCH
ACTIVITIES HAD BEEN PRE-EMPTED BY SEC. 303.  BUT HERE RESPONDENT'S
CLAIM IS BASED IN PART ON PROOFS OF VIOLENCE AND INTIMIDATION.  "WE
HAVE ALLOWED THE STATES TO GRANT COMPENSATION FOR THE CONSEQUENCES, AS
DEFINED BY THE TRADITIONAL LAW OF TORTS, OF CONDUCT MARKED BY VIOLENCE
AND IMMINENT THREATS TO THE PUBLIC ORDER.  UNITED AUTOMOBILE WORKERS V.
RUSSELL, 356 U.S. 634; UNITED CONSTRUCTION WORKERS V. LABURNUM CORP.,
347 U.S. 656  ...  .  STATE JURISDICTION HAS PREVAILED IN THESE
SITUATIONS BECAUSE THE COMPELLING STATE INTEREST, IN THE SCHEME OF OUR
FEDERALISM, IN THE MAINTENANCE OF DOMESTIC PEACE IS NOT OVERRIDDEN IN
THE ABSENCE OF CLEARLY EXPRESSED CONGRESSIONAL DIRECTION."  SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, 247. 

THE FACT THAT STATE REMEDIES WERE NOT ENTIRELY PRE-EMPTED DOES NOT,
HOWEVER, ANSWER THE QUESTION WHETHER THE STATE CLAIM WAS PROPERLY
ADJUDICATED IN THE DISTRICT COURT ABSENT DIVERSITY JURISDICTION.  THE
COURT HELD IN HURN V. OURSLER, 289 U.S. 238, THAT STATE LAW CLAIMS ARE
APPROPRIATE FOR FEDERAL COURT DETERMINATION IF THEY FORM A SEPARATE BUT
PARALLEL GROUND FOR RELIEF ALSO SOUGHT IN A SUBSTANTIAL CLAIM BASED ON
FEDERAL LAW.  THE COURT DISTINGUISHED PERMISSIBLE FROM NONPERMISSIBLE
EXERCISES OF FEDERAL JUDICIAL POWER OVER STATE LAW CLAIMS BY
CONTRASTING "A CASE WHERE TWO DISTINCT GROUNDS IN SUPPORT OF A SINGLE
CAUSE OF ACTION ARE ALLEGED, ONE ONLY OF WHICH PRESENTS A FEDERAL
QUESTION, AND A CASE WHERE TWO SEPARATE AND DISTINCT CAUSES OF ACTION
ARE ALLEGED, ONE ONLY OF WHICH IS FEDERAL IN CHARACTER.  IN THE FORMER,
WHERE THE FEDERAL QUESTION AVERRED IS NOT PLAINLY WANTING IN SUBSTANCE,
THE FEDERAL COURT, EVEN THOUGH THE FEDERAL GROUND BE NOT ESTABLISHED,
MAY NEVERTHELESS RETAIN AND DISPOSE OF THE CASE UPON THE NON-FEDERAL
GROUND; IN THE LATTER IT MAY NOT DO SO UPON THE NON-FEDERAL CAUSE OF
ACTION."  289 U.S., AT 246.  THE QUESTION IS INTO WHICH CATEGORY THE
PRESENT ACTION FELL. 

HURN WAS DECIDED IN 1933, BEFORE THE UNIFICATION OF LAW AND EQUITY BY
THE FEDERAL RULES OF CIVIL PROCEDURE.  AT THE TIME, THE MEANING OF
"CAUSE OF ACTION" WAS A SUBJECT OF SERIOUS DISPUTE; (FN7) THE PHRASE
MIGHT "MEAN ONE THING FOR ONE PURPOSE AND SOMETHING DIFFERENT FOR
ANOTHER."  UNITED STATES V. MEMPHIS COTTON OIL CO., 288 U.S. 62, 67
68.  (FN8)  THE COURT IN HURN IDENTIFIED WHAT IT MEANT BY THE TERM BY
CITATION OF BALTIMORE S.S. CO. V. PHILLIPS, 274 U.S. 316, A CASE IN
WHICH "CAUSE OF ACTION" HAD BEEN USED TO IDENTIFY THE OPERATIVE SCOPE
OF THE DOCTRINE OF RES JUDICATA.  IN THAT CASE THE COURT HAD NOTED THAT
"'THE WHOLE TENDENCY OF OUR DECISIONS IS TO REQUIRE A PLAINTIFF TO TRY
HIS WHOLE CAUSE OF ACTION AND HIS WHOLE CASE AT ONE TIME.'"  274 U.S.,
AT 320.  IT STATED ITS HOLDING IN THE FOLLOWING LANGUAGE, QUOTED IN
PART IN THE HURN OPINION: 

"UPON PRINCIPLE, IT IS PERFECTLY PLAIN THAT THE RESPONDENT (A SEAMAN
SUING FOR AN INJURY SUSTAINED WHILE WORKING ABOARD SHIP) SUFFERED BUT
ONE ACTIONABLE WRONG AND WAS ENTITLED TO BUT ONE RECOVERY, WHETHER HIS
INJURY WAS DUE TO ONE OR THE OTHER OF SEVERAL DISTINCT ACTS OF ALLEGED
NEGLIGENCE OR TO A COMBINATION OF SOME OR ALL OF THEM.  IN EITHER VIEW,
THERE WOULD BE BUT A SINGLE WRONGFUL INVASION OF A SINGLE PRIMARY RIGHT
OF THE PLAINTIFF, NAMELY, THE RIGHT OF BODILY SAFETY, WHETHER THE ACTS
CONSTITUTING SUCH INVASION WERE ONE OR MANY, SIMPLE OR COMPLEX. 

"A CAUSE OF ACTION DOES NOT CONSIST OF FACTS, BUT OF THE UNLAWFUL
VIOLATION OF A RIGHT WHICH THE FACTS SHOW.  THE NUMBER AND VARIETY OF
THE FACTS ALLEGED DO NOT ESTABLISH MORE THAN ONE CAUSE OF ACTION SO
LONG AS THEIR RESULT, WHETHER THEY BE CONSIDERED SEVERALLY OR IN
COMBINATION, IS THE VIOLATION OF BUT ONE RIGHT BY A SINGLE LEGAL
WRONG.  THE MERE MULTIPLICATION OF GROUNDS OF NEGLIGENCE ALLEGED AS
CAUSING THE SAME INJURY DOES NOT RESULT IN MULTIPLYING THE CAUSES OF
ACTION.  'THE FACTS ARE MERELY THE MEANS, AND NOT THE END.  THEY DO NOT
CONSTITUTE THE CAUSE OF ACTION, BUT THEY SHOW ITS EXISTENCE BY MAKING
THE WRONG APPEAR.'"  ID., AT 321. 

HAD THE COURT FOUND A JURISDICTIONAL BAR TO REACHING THE STATE CLAIM
IN HURN, WE ASSUME THAT THE DOCTRINE OF RES JUDICATA WOULD NOT HAVE
BEEN APPLICABLE IN ANY SUBSEQUENT STATE SUIT.  BUT THE CITATION OF
BALTIMORE S.S. CO. SHOWS THAT THE COURT FOUND THAT THE WEIGHTY POLICIES
OF JUDICIAL ECONOMY AND FAIRNESS TO PARTIES REFLECTED IN RES JUDICATA
DOCTRINE WERE IN THEMSELVES STRONG COUNSEL FOR THE ADOPTION OF A RULE
WHICH WOULD PERMIT FEDERAL COURTS TO DISPOSE OF THE STATE AS WELL AS
THE FEDERAL CLAIMS. 

WITH THE ADOPTION OF THE FEDERAL RULES OF CIVIL PROCEDURE AND THE
UNIFIED FORM OF ACTION, FED. RULE CIV. PROC. 2, MUCH OF THE CONTROVERSY
OVER "CAUSE OF ACTION" ABATED.  THE PHRASE REMAINED AS THE KEYSTONE OF
THE HURN TEST, HOWEVER, AND, AS COMMENTATORS HAVE NOTED, (FN9) HAS BEEN
THE SOURCE OF CONSIDERABLE CONFUSION.  UNDER THE RULES, THE IMPULSE IS
TOWARD ENTERTAINING THE BROADEST POSSIBLE SCOPE OF ACTION CONSISTENT
WITH FAIRNESS TO THE PARTIES; JOINDER OF CLAIMS, PARTIES AND REMEDIES
IS STRONGLY ENCOURAGED.  (FN10)  YET BECAUSE THE HURN QUESTION INVOLVES
ISSUES OF JURISDICTION AS WELL AS CONVENIENCE, THERE HAS BEEN SOME
TENDENCY TO LIMIT ITS APPLICATION TO CASES IN WHICH THE STATE AND
FEDERAL CLAIMS ARE, AS IN HURN, "LITTLE MORE THAN THE EQUIVALENT OF
DIFFERENT EPITHETS TO CHARACTERIZE THE SAME GROUP OF CIRCUMSTANCES." 
289 U.S., AT 246.  (FN11) 

THIS LIMITED APPROACH IS UNNECESSARILY GRUDGING.  PENDENT
JURISDICTION, IN THE SENSE OF JUDICIAL POWER, EXISTS WHENEVER THERE IS
A CLAIM "ARISING UNDER THE CONSTITUTION, THE LAWS OF THE UNITED STATES,
AND TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY  ...
," U.S. CONST., ART. III, SEC. 2, AND THE RELATIONSHIP BETWEEN THAT
CLAIM AND THE STATE CLAIM PERMITS THE CONCLUSION THAT THE ENTIRE ACTION
BEFORE THE COURT COMPRISES BUT ONE CONSTITUTIONAL "CASE."  (FN12)  THE
FEDERAL CLAIM MUST HAVE SUBSTANCE SUFFICIENT TO CONFER SUBJECT MATTER
JURISDICTION ON THE COURT.  LEVERING & GARRIGUES CO. V. MORRIN, 289
U.S. 103.  THE STATE AND FEDERAL CLAIMS MUST DERIVE FROM A COMMON
NUCLEUS OF OPERATIVE FACT.  BUT IF, CONSIDERED WITHOUT REGARD TO THEIR
FEDERAL OR STATE CHARACTER, A PLAINTIFF'S CLAIMS ARE SUCH THAT HE WOULD
ORDINARILY BE EXPECTED TO TRY THEM ALL IN ONE JUDICIAL PROCEEDING,
THEN, ASSUMING SUBSTANTIALITY OF THE FEDERAL ISSUES, THERE IS POWER IN
FEDERAL COURTS TO HEAR THE WHOLE.  (FN13) 

THAT POWER NEED NOT BE EXERCISED IN EVERY CASE IN WHICH IT IS FOUND
TO EXIST.  IT HAS CONSISTENTLY BEEN RECOGNIZED THAT PENDENT
JURISDICTION IS A DOCTRINE OF DISCRETION, NOT OF PLAINTIFF'S RIGHT. 
(FN14)  ITS JUSTIFICATION LIES IN CONSIDERATIONS OF JUDICIAL ECONOMY,
CONVENIENCE AND FAIRNESS TO LITIGANTS; IF THESE ARE NOT PRESENT A
FEDERAL COURT SHOULD HESITATE TO EXERCISE JURISDICTION OVER STATE
CLAIMS, EVEN THOUGH BOUND TO APPLY STATE LAW TO THEM, ERIE R. CO. V.
TOMPKINS, 304 U.S. 64.  NEEDLESS DECISIONS OF STATE LAW SHOULD BE
AVOIDED BOTH AS A MATTER OF COMITY AND TO PROMOTE JUSTICE BETWEEN THE
PARTIES, BY PROCURING FOR THEM A SURER-FOOTED READING OF APPLICABLE
LAW.  (FN15) CERTAINLY, IF THE FEDERAL CLAIMS ARE DISMISSED BEFORE
TRIAL, EVEN THOUGH NOT INSUBSTANTIAL IN A JURISDICTIONAL SENSE, THE
STATE CLAIMS SHOULD BE DISMISSED AS WELL.  (FN16)  SIMILARLY, IF IT
APPEARS THAT THE STATE ISSUES SUBSTANTIALLY PREDOMINATE, WHETHER IN
TERMS OF PROOF, OF THE SCOPE OF THE ISSUES RAISED, OR OF THE
COMPREHENSIVENESS OF THE REMEDY SOUGHT, THE STATE CLAIMS MAY BE
DISMISSED WITHOUT PREJUDICE AND LEFT FOR RESOLUTION TO STATE
TRIBUNALS.  THERE MAY, ON THE OTHER HAND, BE SITUATIONS IN WHICH THE
STATE CLAIM IS SO CLOSELY TIED TO QUESTIONS OF FEDERAL POLICY THAT THE
ARGUMENT FOR EXERCISE OF PENDENT JURISDICTION IS PARTICULARLY STRONG. 
IN THE PRESENT CASE, FOR EXAMPLE, THE ALLOWABLE SCOPE OF THE STATE
CLAIM IMPLICATES THE FEDERAL DOCTRINE OF PRE-EMPTION; WHILE THIS
INTERRELATIONSHIP DOES NOT CREATE STATUTORY FEDERAL QUESTION
JURISDICTION, LOUISVILLE & N.R. CO. V. MOTTLEY, 211 U.S. 149, ITS
EXISTENCE IS RELEVANT TO THE EXERCISE OF DISCRETION.  FINALLY, THERE
MAY BE REASONS INDEPENDENT OF JURISDICTIONAL CONSIDERATIONS, SUCH AS
THE LIKELIHOOD OF JURY CONFUSION IN TREATING DIVERGENT LEGAL THEORIES
OF RELIEF, THAT WOULD JUSTIFY SEPARATING STATE AND FEDERAL CLAIMS FOR
TRIAL, FED. RULE CIV. PROC. 42(B).  IF SO, JURISDICTION SHOULD
ORDINARILY BE REFUSED.    THE QUESTION OF POWER WILL ORDINARILY BE
RESOLVED ON THE PLEADINGS.  BUT THE ISSUE WHETHER PENDENT JURISDICTION
HAS BEEN PROPERLY ASSUMED IS ONE WHICH REMAINS OPEN THROUGHOUT THE
LITIGATION.  PRETRIAL PROCEDURES OR EVEN THE TRIAL ITSELF MAY REVEAL A
SUBSTANTIAL HEGEMONY OF STATE LAW CLAIMS, OR LIKELIHOOD OF JURY
CONFUSION, WHICH COULD NOT HAVE BEEN ANTICIPATED AT THE PLEADING
STAGE.  ALTHOUGH IT WILL OF COURSE BE APPROPRIATE TO TAKE ACCOUNT IN
THIS CIRCUMSTANCE OF THE ALREADY COMPLETED COURSE OF THE LITIGATION,
DISMISSAL OF THE STATE CLAIM MIGHT EVEN THEN BE MERITED.  FOR EXAMPLE,
IT MAY APPEAR THAT THE PLAINTIFF WAS WELL AWARE OF THE NATURE OF HIS
PROOFS AND THE RELATIVE IMPORTANCE OF HIS CLAIMS; RECOGNITION OF A
FEDERAL COURT'S WIDE LATITUDE TO DECIDE ANCILLARY QUESTIONS OF STATE
LAW DOES NOT IMPLY THAT IT MUST TOLERATE A LITIGANT'S EFFORT TO IMPOSE
UPON IT WHAT IS IN EFFECT ONLY A STATE LAW CASE.  ONCE IT APPEARS THAT
A STATE CLAIM CONSTITUTES THE REAL BODY OF A CASE, TO WHICH THE FEDERAL
CLAIM IS ONLY AN APPENDAGE, THE STATE CLAIM MAY FAIRLY BE DISMISSED. 

WE ARE NOT PREPARED TO SAY THAT IN THE PRESENT CASE THE DISTRICT
COURT EXCEEDED ITS DISCRETION IN PROCEEDING TO JUDGMENT ON THE STATE
CLAIM.  WE MAY ASSUME FOR PURPOSES OF DECISION THAT THE DISTRICT COURT
WAS CORRECT IN ITS HOLDING THAT THE CLAIM OF PRESSURE ON GRUNDY TO
TERMINATE THE EMPLOYMENT CONTRACT WAS OUTSIDE THE PURVIEW OF SEC. 303. 
EVEN SO, THE SEC. 303 CLAIMS BASED ON SECONDARY PRESSURES ON GRUNDY
RELATIVE TO THE HAULAGE CONTRACT AND ON OTHER COAL OPERATORS GENERALLY
WERE SUBSTANTIAL.  ALTHOUGH SEC. 303 LIMITED RECOVERY TO COMPENSATORY
DAMAGES BASED ON SECONDARY PRESSURES, TEAMSTERS UNION V. MORTON, SUPRA,
AND STATE LAW ALLOWED BOTH COMPENSATORY AND PUNITIVE DAMAGES, AND
ALLOWED SUCH DAMAGES AS TO BOTH SECONDARY AND PRIMARY ACTIVITY, THE
STATE AND FEDERAL CLAIMS AROSE FROM THE SAME NUCLEUS OF OPERATIVE FACT
AND REFLECTED ALTERNATIVE REMEDIES.  INDEED, THE VERDICT SHEET SENT IN
TO THE JURY AUTHORIZED ONLY ONE AWARD OF DAMAGES, SO THAT RECOVERY
COULD NOT BE GIVEN SEPARATELY ON THE FEDERAL AND STATE CLAIMS. 

IT IS TRUE THAT THE SEC. 303 CLAIMS ULTIMATELY FAILED AND THAT THE
ONLY RECOVERY ALLOWED RESPONDENT WAS ON THE STATE CLAIM.  WE CANNOT
CONFIDENTLY SAY, HOWEVER, THAT THE FEDERAL ISSUES WERE SO REMOTE OR
PLAYED SUCH A MINOR ROLE AT THE TRIAL THAT IN EFFECT THE STATE CLAIM
ONLY WAS TRIED.  ALTHOUGH THE DISTRICT COURT DISMISED AS UNPROVED THE
SEC. 303 CLAIMS THAT PETITIONER'S SECONDARY ACTIVITIES INCLUDED
ATTEMPTS TO INDUCE COAL OPERATORS OTHER THAN GRUNDY TO CEASE DOING
BUSINESS WITH RESPONDENT, THE COURT SUBMITTED THE SEC. 303 CLAIMS
RELATING TO GRUNDY TO THE JURY.  THE JURY RETURNED VERDICTS AGAINST
PETITIONER ON THESE SEC.  303 CLAIMS, AND IT WAS ONLY ON PETITIONER'S
MOTION FOR A DIRECTED VERDICT AND A JUDGMENT N.O.V. THAT THE VERDICTS
ON THOSE CLAIMS WERE SET ASIDE.  THE DISTRICT JUDGE CONSIDERED THE
CLAIM AS TO THE HAULAGE CONTRACT PROVED AS TO LIABILITY, AND HELD IT
FAILED ONLY FOR LACK OF PROOF OF DAMAGES.  ALTHOUGH THERE WAS SOME RISK
OF CONFUSING THE JURY IN JOINING THE STATE AND FEDERAL CLAIMS -
ESPECIALLY SINCE, AS WILL BE DEVELOPED, DIFFERING STANDARDS OF PROOF OF
UMW INVOLVEMENT APPLIED - THE POSSIBILITY OF CONFUSION COULD BE
LESSENED BY EMPLOYING A SPECIAL VERDICT FORM, AS THE DISTRICT COURT
DID.  MOREOVER, THE QUESTION WHETHER THE PERMISSIBLE SCOPE OF THE STATE
CLAIM WAS LIMITED BY THE DOCTRINE OF PRE-EMPTION AFFORDED A SPECIAL
REASON FOR THE EXERCISE OF PENDENT JURISDICTION; THE FEDERAL COURTS ARE
PARTICULARLY APPROPRIATE BODIES FOR THE APPLICATION OF PRE-EMPTION
PRINCIPLES.  WE THUS CONCLUDE THAT ALTHOUGH IT MAY BE THAT THE DISTRICT
COURT MIGHT, IN ITS SOUND DISCRETION, HAVE DISMISSED THE STATE CLAIM,
THE CIRCUMSTANCES SHOW NO ERROR IN REFUSING TO DO SO.

                II. 

THIS COURT HAS CONSISTENTLY RECOGNIZED THE RIGHT OF STATES TO DEAL
WITH VIOLENCE AND THREATS OF VIOLENCE APPEARING IN LABOR DISPUTES,
SUSTAINING A VARIETY OF REMEDIAL MEASURES AGAINST THE CONTENTION THAT
STATE LAW WAS PRE-EMPTED BY THE PASSAGE OF FEDERAL LABOR LEGISLATION. 
ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740; UNITED
CONSTRUCTION WORKERS V. LABURNUM CONSTRUCTION CORP., 347 U.S. 656;
UNITED AUTOMOBILE WORKERS V. WISCONSIN BOARD, 351 U.S. 266; YOUNGDAHL
V. RAINFAIR, INC., 355 U.S. 131; UNITED AUTOMOBILE WORKERS V. RUSSELL,
356 U.S. 634.  PETITIONER CONCEDES THE PRINCIPLE, BUT ARGUES THAT THE
PERMISSIBLE SCOPE OF STATE REMEDIES IN THIS AREA IS STRICTLY CONFINED
TO THE DIRECT CONSEQUENCES OF SUCH CONDUCT, AND DOES NOT INCLUDE
CONSEQUENCES RESULTING FROM ASSOCIATED PEACEFUL PICKETING OR OTHER
UNION ACTIVITY.  WE AGREE. 

OUR OPINIONS ON THIS SUBJECT, FREQUENTLY ANNOUNCED OVER WEIGHTY
ARGUMENTS IN DISSENT THAT STATE REMEDIES WERE BEING GIVEN TOO BROAD
SCOPE, HAVE APPROVED ONLY REMEDIES CAREFULLY LIMITED TO THE PROTECTION
OF THE COMPELLING STATE INTEREST IN THE MAINTENANCE OF DOMESTIC PEACE. 
THUS, IN SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, WE
READ OUR PRIOR DECISIONS AS ONLY ALLOWING "THE STATES TO GRANT
COMPENSATION FOR THE CONSEQUENCES, AS DEFINED BY THE TRADITIONAL LAW OF
TORTS, OF CONDUCT MARKED BY VIOLENCE AND IMMINENT THREATS TO THE PUBLIC
ORDER," ID., AT 247, AND NOTED THAT IN LABURNUM: 

"DAMAGES WERE RESTRICTED TO THE 'DAMAGES DIRECTLY AND PROXIMATELY
CAUSED BY WRONGFUL CONDUCT CHARGEABLE TO THE DEFENDANTS  ...  ' AS
DEFINED BY THE TRADITIONAL LAW OF TORTS  ...  .  THUS THERE IS NOTHING
IN THE MEASURE OF DAMAGES TO INDICATE THAT STATE POWER WAS EXERTED TO
COMPENSATE FOR ANTHING MORE THAN THE DIRECT CONSEQUENCES OF THE VIOLENT
CONDUCT."  ID., 248, N. 6, AT 249. 

IN RUSSELL, WE SPECIFICALLY OBSERVED THAT THE JURY HAD BEEN CHARGED
THAT TO AWARD DAMAGES IT MUST FIND A PROXIMATE RELATION BETWEEN THE
VIOLENCE AND THREATS OF FORCE AND VIOLENCE COMPLAINED OF, ON THE ONE
HAND, AND THE LOSS OF WAGES ALLEGEDLY SUFFERED, ON THE OTHER.  356
U.S., AT 638, N. 3.  IN THE TWO WISCONSIN BOARD CASES IT WAS NOTED THAT
THE STATE'S ADMINISTRATIVE-INJUNCTIVE RELIEF WAS LIMITED TO PROHIBITION
AGAINST CONTINUATION OF THE UNLAWFUL PICKETING, NOT ALL PICKETING.  315
U.S., AT 748; 351 U.S., AT 269-270, N. 3.  AND IN YOUNGDAHL, THE COURT
HELD THAT A STATE COURT INJUNCTION WHICH WOULD HAVE PROHIBITED ALL
PICKETING MUST BE MODIFIED TO PERMIT PEACEFUL PICKETING OF THE
PREMISES.  WE SAID, "THOUGH THE STATE COURT WAS WITHIN ITS
DISCRETIONARY POWER IN ENJOINING FUTURE ACTS OF VIOLENCE, INTIMIDATION
AND THREATS OF VIOLENCE BY THE STRIKERS AND THE UNION, YET IT IS
EQUALLY CLEAR THAT SUCH COURT ENTERED THE PRE-EMPTED DOMAIN OF THE
NATIONAL LABOR RELATIONS BOARD INSOFAR AS IT ENJOINED PEACEFUL
PICKETING  ...  ."  355 U.S., AT 139.  (FN17) 

IT IS TRUE THAT IN MILK WAGON DRIVERS UNION V. MEADOWMOOR DAIRIES,
312 U.S. 287, THE COURT APPROVED SWEEPING STATE INJUNCTIVE RELIEF
BARRING ANY FUTURE PICKETING IN A LABOR DISPUTE, WHETHER PEACEFUL OR
NOT.  THAT CASE, HOWEVER, WAS DECIDED ONLY ON A CONSTITUTIONAL CLAIM OF
FREEDOM OF SPEECH.  WE DID NOT CONSIDER THE IMPACT OF FEDERAL LABOR
POLICY ON STATE REGULATORY POWER.  MOREOVER, AS WE RECOGNIZED IN
YOUNGDAHL, SUPRA, AT 139, THE CASE WAS DECIDED IN THE CONTEXT OF A
STRIKE MARKED BY EXTREME AND REPEATED ACTS OF VIOLENCE - "A PATTERN OF
VIOLENCE  ...  WHICH WOULD INEVITABLY REAPPEAR IN THE EVENT PICKETING
WERE LATER RESUMED."  THE COURT IN MEADOWMOOR HAD STATED THE QUESTION
PRESENTED AS "WHETHER A STATE CAN CHOOSE TO AUTHORIZE ITS COURTS TO
ENJOIN ACTS OF PICKETING IN THEMSELVES PEACEFUL WHEN THEY ARE ENMESHED
WITH CONTEMPORANEOUSLY VIOLENT CONDUCT WHICH IS CONCEDEDLY OUTLAWED,"
312 U.S., AT 292, AND HAD REASONED THAT: 

"ACTS WHICH IN ISOLATION ARE PEACEFUL MAY BE PART OF A COERCIVE
THRUST WHEN ENTANGLED WITH ACTS OF VIOLENCE.  THE PICKETING IN THIS
CASE WAS SET IN A BACKGROUND OF VIOLENCE.  IN SUCH A SETTING IT COULD
JUSTIFIABLY BE CONCLUDED THAT THE MOMENTUM OF FEAR GENERATED BY PAST
VIOLENCE WOULD SURVIVE EVEN THOUGH FUTURE PICKETING MIGHT BE WHOLLY
PEACEFUL."  ID., AT 294. 

SUCH SPECIAL FACTS, IF THEY APPEARED IN AN ACTION FOR DAMAGES AFTER
PICKETING MARRED BY VIOLENCE HAD OCCURRED, MIGHT SUPPORT THE CONCLUSION
THAT ALL DAMAGES RESULTING FROM THE PICKETING WERE PROXIMATELY CAUSED
BY ITS VIOLENT COMPONENT OR BY THE FEAR WHICH THAT VIOLENCE
ENGENDERED.  (FN18) WHERE THE CONSEQUENCES OF PEACEFUL AND VIOLENT
CONDUCT ARE SEPARABLE, HOWEVER, IT IS CLEAR THAT RECOVERY MAY BE HAD
ONLY FOR THE LATTER. 

IN THE PRESENT CASE, PETITIONER CONCEDES THAT VIOLENCE WHICH WOULD
JUSTIFY APPLICATION OF STATE TORT LAW WITHIN THESE NARROW BOUNDS
OCCURRED DURING THE FIRST TWO DAYS OF THE STRIKE.  IT IS A SEPARATE
ISSUE, HOWEVER, WHETHER THE PLEADINGS, THE ARGUMENTS OF COUNSEL TO THE
JURY, OR THE INSTRUCTIONS TO THE JURY ADEQUATELY DEFINED THE COMPASS
WITHIN WHICH DAMAGES COULD BE AWARDED UNDER STATE LAW.  THE TORT
CLAIMED WAS, IN ESSENCE, A "CONSPIRACY" TO INTERFERE WITH GIBBS'
CONTRACTUAL RELATIONS.  THE TORT OF "CONSPIRACY" IS POORLY DEFINED, AND
HIGHLY SUSCEPTIBLE TO JUDICIAL EXPANSION; ITS RELATIVELY BRIEF HISTORY
IS COLORED BY USE AS A WEAPON AGAINST THE DEVELOPING LABOR MOVEMENT. 
(FN19)  INDEED, A READING OF THE RECORD IN THIS CASE GIVES THE
IMPRESSION THAT THE NOTION OF "CONSPIRACY" WAS EMPLOYED HERE TO EXPAND
THE APPLICATION OF STATE LAW SUBSTANTIALLY BEYOND THE LIMITS TO BE
OBSERVED IN SHOWING DIRECT UNION INVOLVEMENT IN VIOLENCE. 

THUS, RESPONDENT'S COMPLAINT ALLEGED "AN UNLAWFUL CONSPIRACY AND AN
UNLAWFUL BOYCOTT  ...  TO MALICIOUSLY, WANTONLY AND WILLFULLY INTERFERE
WITH HIS CONTRACT OF EMPLOYMENT AND WITH HIS CONTRACT OF HAULAGE."  NO
LIMITATION TO INTERFERENCE BY VIOLENCE APPEARS.  SIMILARLY, COUNSEL IN
ARGUING TO THE JURY ASSERTED, NOT THAT THE CONSPIRACY IN WHICH THE
UNION HAD ALLEGEDLY PARTICIPATED AND FROM WHICH ITS LIABILITY COULD BE
INFERRED WAS A CONSPIRACY OF VIOLENCE BUT THAT IT WAS A CONSPIRACY TO
IMPOSE THE UMW AND THE UMW'S STANDARD CONTRACT ON THE COAL FIELDS OF
TENNESSEE.  (FN20)  UNDER THE STATE LAW, IT WOULD NOT HAVE BEEN
RELEVANT THAT THE UNION HAD NOT ACTUALLY AUTHORIZED, PARTICIPATED IN OR
RATIFIED THE PARTICULAR VIOLENCE INVOLVED OR EVEN THE GENERAL USE OF
VIOLENCE.  IT WOULD ONLY BE NECESSARY TO SHOW A CONSPIRACY IN WHICH THE
UNION HAD A PART, AND TO SHOW ALSO THAT THOSE WHO ENGAGED IN THE
VIOLENCE WERE MEMBERS OF THE CONSPIRACY AND THEIR ACTS WERE RELATED TO
THE CONSPIRACY'S PURPOSE.  (FN21) 

THE INSTRUCTIONS TO THE JURY ALSO APPEAR NOT TO HAVE KEPT THE
CONSPIRACY CONCEPT WITHIN ANY PROPER BOUNDS.  THE CHARGE INSTRUCTED THE
JURY SEPARATELY ON THE SEC. 303 AND CONSPIRACY CLAIMS, CHARACTERIZING
EACH AS PREDICATED ON AN ASSERTION THAT THERE HAD BEEN "UNLAWFUL"
PICKETING ACTION, AND DISTINGUISHING ONE FROM THE OTHER ON THE BASIS
THAT IN THE CONSPIRACY CLAIM "THE LAWFULNESS OF THE MEANS RATHER THAN
THE LAWFULNESS OF THE OBJECT OR THE PURPOSE OF THE PICKETING  ...  IS
CONTROLLING."  BUT IN CHARGING THE CONSPIRACY CLAIM, THE COURT STRESSED
THAT THE "UNLAWFULNESS" OF THE PICKETING, RATHER THAN VIOLENCE AS SUCH,
WOULD BE CONTROLLING.  THUS, IN CHARACTERIZING RESPONDENT'S CLAIM OF A
CONSPIRACY INTENTIONALLY TO INTERFERE WITH HIS CONTRACTUAL RELATIONS
WITH GRUNDY, THE TRIAL JUDGE SAID RESPONDENT ASSERTED THE INTERFERENCE
TO BE "WRONGFUL IN THAT IT WAS ACCOMPLISHED BY UNLAWFUL MEANS,
INCLUDING VIOLENCE AND THREATS OF VIOLENCE."  TURNING TO THE QUESTION
OF THE INTERNATIONAL UNION'S RESPONSIBILITY, HE SAID THIS DEPENDED ON A
SHOWING THAT IT "WAS A PARTY TO A CONSPIRACY PURSUANT TO WHICH THE
INTERFERENCE WAS COMMITTED."  HE DEFINED CONSPIRACY AS: 

"AN AGREEMENT BETWEEN TWO OR MORE  ...  TO DO AN UNLAWFUL THING, OR
TO DO A LAWFUL THING BY UNLAWFUL MEANS  ...  .  IT IS NOT ESSENTIAL TO
THE EXISTENCE OF A CONSPIRACY THAT THE AGREEMENT BETWEEN THE
CONSPIRATORS BE FORMALLY MADE BETWEEN THE PARTIES AT ANY ONE TIME, IF,
FOR EXAMPLE, TWO PERSONS AGREED TO PURSUE AN UNLAWFUL PURPOSE OR PURSUE
A LAWFUL PURPOSE BY UNLAWFUL MEANS, THEN LATER A THIRD PERSON WITH
KNOWLEDGE OF THE EXISTENCE OF THE CONSPIRACY ASSENTS TO IT EITHER
IMPLIEDLY OR EXPRESSLY AND PARTICIPATES IN IT, THEN ALL THREE ARE
CONSPIRATORS IN THE SAME CONSPIRACY  ...  .  ALL THAT IS REQUIRED IS
THAT EACH PARTY TO THE CONSPIRACY KNOW OF THE EXISTENCE OF THE
CONSPIRACY AND THAT EACH AGREES TO ASSIST IN SOME MANNER IN THE
FURTHERANCE OF THE UNLAWFUL PURPOSE  ...  OR ANY UNLAWFUL MEANS OF
ACCOMPLISHING AN UNLAWFUL PURPOSE." 

THE TRIAL JUDGE THEN CHARGED, IN ACCORDANCE WITH THE TENNESSEE COMMON
LAW ON CONSPIRACY, (FN22) THAT THE UNION, IF A MEMBER OF A CONSPIRACY,
WOULD BE LIABLE FOR ALL ACTS "DONE IN CONCERT  ... WITH THE COMMON
PURPOSE, AND TO EFFECT A COMMON DESIGN," WHETHER OR NOT IT HAD
AUTHORIZED, PARTICIPATED IN, OR RATIFIED THE PARTICULAR ACTS.  THE JURY
WAS TOLD IT MIGHT AWARD "ONLY SUCH DAMAGES AS  ...  HE HAS SUSTAINED AS
A PROXIMATE AND DIRECT RESULT OF THE ACTION OF THE DEFENDANT," AND THAT
"NO AWARD OF DAMAGES CAN BE MADE  ...  ON THE BASIS OF LOSSES SUSTAINED
...  AS A RESULT OF LAWFUL ACTIVITY UPON THE PART OF THE DEFENDANT OR
ITS AGENTS."  SUCH INSTRUCTIONS DO NOT FOCUS THE JURY'S ATTENTION UPON
VIOLENCE OR THREATS OF VIOLENCE AS THE ESSENTIAL PREDICATE OF ANY
RECOVERY IT MIGHT AWARD. 

                    III. 

EVEN ASSUMING THE CONSPIRACY CONCEPT COULD BE AND WAS KEPT WITHIN
LIMITS PROPER TO THE APPLICATION OF STATE TORT LAW UNDER THE PRE
EMPTION DOCTRINE, REVERSAL IS NEVERTHELESS REQUIRED HERE FOR FAILURE TO
MEET THE SPECIAL PROOF REQUIREMENTS IMPOSED BY SEC. 6 OF THE NORRIS-LA
GUARDIA ACT:  (FN23) 

"NO OFFICER OR MEMBER OF ANY ASSOCIATION OR ORGANIZATION, AND NO
ASSOCIATION OR ORGANIZATION PARTICIPATING OR INTERESTED IN A LABOR
DISPUTE, SHALL BE HELD RESPONSIBLE OR LIABLE IN ANY COURT OF THE UNITED
STATES FOR THE UNLAWFUL ACTS OF INDIVIDUAL OFFICERS, MEMBERS, OR
AGENTS, EXCEPT UPON CLEAR PROOF OF ACTUAL PARTICIPATION IN, OR ACTUAL
AUTHORIZATION OF, SUCH ACTS, OR OF RATIFICATION OF SUCH ACTS AFTER
ACTUAL KNOWLEDGE THEREOF."    PETITIONER VIGOROUSLY CONTENDS THAT SEC.
6 APPLIED TO THE STATE CLAIMS IN THIS CASE; THAT, ON THIS RECORD, IT
CANNOT BE CHARGED WITH HAVING PARTICIPATED IN OR AUTHORIZED THE
VIOLENCE OF AUGUST 15-16; AND THAT ITS ACTS ONCE IT LEARNED OF THE
VIOLENCE FELL SHORT OF WHAT WOULD BE NECESSARY TO SHOW EITHER
RATIFICATION OF THE VIOLENCE OR ANY INTENT TO BUILD ITS PICKETING
CAMPAIGN UPON THE FEARS THE VIOLENCE ENGENDERED.  WE AGREE.    WE HELD
IN BROTHERHOOD OF CARPENTERS V. UNITED STATES, 330 U.S. 395, 403,
THAT: 

"WHETHER SEC. 6 SHOULD BE CALLED A RULE OF EVIDENCE OR ONE THAT
CHANGES THE SUBSTANTIVE LAW OF AGENCY  ...  ITS PURPOSE AND EFFECT WAS
TO RELIEVE ORGANIZATIONS  ...  AND MEMBERS OF THOSE ORGANIZATIONS FROM
LIABILITY FOR DAMAGES OR IMPUTATION OF GUILT FOR LAWLESS ACTS DONE IN
LABOR DISPUTES BY SOME INDIVIDUAL OFFICERS OR MEMBERS OF THE
ORGANIZATION, WITHOUT CLEAR PROOF THAT THE ORGANIZATION OR MEMBER
CHARGED WITH RESPONSIBILITY FOR THE OFFENSE ACTUALLY PARTICIPATED, GAVE
PRIOR AUTHORIZATION, OR RATIFIED SUCH ACTS AFTER ACTUAL KNOWLEDGE OF
THEIR PERPETRATION." 

SHORTLY THEREAFTER, CONGRESS PASSED THE LABOR MANAGEMENT RELATIONS
ACT, WHICH EXPRESSLY PROVIDES THAT FOR THE PURPOSES OF THAT STATUTE,
INCLUDING SEC. 303, THE RESPONSIBILITY OF A UNION FOR THE ACTS OF ITS
MEMBERS AND OFFICERS IS TO BE MEASURED BY REFERENCE TO ORDINARY
DOCTRINES OF AGENCY, RATHER THAN THE MORE STRINGENT STANDARDS OF SEC.
6.  (FN24)  YET ALTHOUGH THE LEGISLATIVE HISTORY INDICATES THAT
CONGRESS WAS WELL AWARE OF THE CARPENTERS DECISION, (FN25) IT DID NOT
REPEAL SEC. 6 OUTRIGHT, BUT LEFT IT APPLICABLE TO CASES NOT ARISING
UNDER THE NEW ACT.  THIS SELECTIVITY IS NOT SURPRISING, FOR ON STATE
CLAIMS, THOUGH NOT ON SEC. 303 CLAIMS, PUNITIVE DAMAGES MAY BE
RECOVERED.  THE DRIVING FORCE BEHIND SEC.  6 (FN26) AND THE OPPOSITION
TO SEC. 303, EVEN IN ITS LIMITED FORM, (FN27) WAS THE FEAR THAT UNIONS
MIGHT BE DESTROYED IF THEY COULD BE HELD LIABLE FOR DAMAGE DONE BY ACTS
BEYOND THEIR PRACTICAL CONTROL.  PLAINLY, SEC. 6 APPLIES TO FEDERAL
COURT ADJUDICATIONS OF STATE TORT CLAIMS ARISING OUT OF LABOR DISPUTES,
WHETHER OR NOT THEY ARE ASSOCIATED WITH CLAIMS UNDER SEC. 303 TO WHICH
THE SECTION DOES NOT APPLY.  (FN28) 

ALTHOUGH THE STATUTE DOES NOT DEFINE "CLEAR PROOF," ITS HISTORY AND
RATIONALE SUGGEST THAT CONGRESS MEANT AT LEAST TO SIGNIFY A MEANING
LIKE THAT COMMONLY ACCORDED SUCH SIMILAR PHRASES AS "CLEAR,
UNEQUIVOCAL, AND CONVINCING PROOF."  UNDER THIS STANDARD, THE PLAINTIFF
IN A CIVIL CASE IS NOT REQUIRED TO SATISFY THE CRIMINAL STANDARD OF
REASONABLE DOUBT ON THE ISSUE OF PARTICIPATION, AUTHORIZATION OR
RATIFICATION; NEITHER MAY HE PREVAIL BY MEETING THE ORDINARY CIVIL
BURDEN OF PERSUASION.  HE IS REQUIRED TO PERSUADE BY A SUBSTANTIAL
MARGIN, TO COME FORWARD WITH "MORE THAN A BARE PREPONDERANCE OF THE
EVIDENCE TO PREVAIL."  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118,
125.  IN OUR VIEW, THAT BURDEN WAS NOT MET.  (FN29) 

AT THE OUTSET, IT IS CLEAR THAT THE REQUISITE SHOWING WAS NOT MADE AS
TO POSSIBLE UNION AUTHORIZATION OF OR PARTICIPATION IN THE VIOLENCE OF
AUGUST 15 AND 16.  ALTHOUGH IT IS UNDOUBTEDLY TRUE THAT THE OFFICERS
AND MEMBERS OF LOCAL 5881 WERE PRESENT IN FORCE AT THE MINE SITE ON
THOSE DAYS, NEITHER THE LOCAL NOR THEY ARE PARTIES TO THIS SUIT.  MR.
GILBERT, THE UMW REPRESENTATIVE, HAD LEFT THE AREA FOR A BUSINESS
MEETING BEFORE THE SERIES OF EVENTS CULMINATING IN THE VIOLENCE, AND
IMMEDIATELY UPON HIS RETURN, THE VIOLENCE SUBSIDED.  THE SIXTH CIRCUIT
CONCEDED THAT "THE PROOFS WERE SKETCHY AS TO DEFENDANT'S RESPONSIBILITY
FOR THE FIRST TWO DAYS' VIOLENCE."  THIS VIEW ACCURATELY REFLECTS THE
STATE OF THE RECORD.  PETITIONER WAS NOT EVEN AWARE OF GRUNDY'S PLAN TO
OPEN THE GRAY'S CREEK MINE UNTIL AFTER THE VIOLENCE HAD OCCURRED. 

THE REMAINING ISSUE IS WHETHER THERE WAS CLEAR PROOF THAT THE UNION
RATIFIED THE VIOLENCE WHICH HAD OCCURRED.  PRELIMINARILY, WE NOTE THAT
IT WOULD BE INCONSISTENT WITH THE FABRIC OF NATIONAL LABOR POLICY TO
INFER RATIFICATION FROM THE MERE FACT THAT PETITIONER INVOLVED ITSELF
IN THE DISPUTE AFTER THE VIOLENCE HAD OCCURRED, OR FROM THE FACT THAT
IT CARRIED ON SOME NORMAL UNION FUNCTIONS, SUCH AS PROVISION OF STRIKE
RELIEF.  A UNION WOULD ORDINARILY UNDERTAKE THESE TASKS DURING THE
COURSE OF A LAWFUL STRIKE.  NATIONAL LABOR POLICY REQUIRES THAT
NATIONAL UNIONS BE ENCOURAGED TO EXERCISE A RESTRAINING INFLUENCE ON
EXPLOSIVE STRIKE SITUATIONS; AND WHEN THEY SEEK TO DO SO, THEY SHOULD
NOT FOR THESE ACTIVITIES BE MADE TO RISK LIABILITY FOR SUCH HARM AS MAY
ALREADY HAVE BEEN DONE.  THE FACT THAT RIPPLES OF THE EARLIER VIOLENCE
MAY STILL BE FELT SHOULD NOT BE PERMITTED, AND UNDER SEC. 6 IS NOT
PERMITTED, TO IMPOSE SUCH LIABILITY.  BECAUSE THE DISPUTE WHICH SPARKED
THE VIOLENCE WILL OFTEN CONTINUE, THE UNION WILL FEEL A RESPONSIBILITY
TO TAKE UP THE DISPUTE AS WELL AS TO CURB ITS EXCESSES.  THERE CAN BE
NO RIGID REQUIREMENT THAT A UNION AFFIRMATIVELY DISAVOW SUCH UNLAWFUL
ACTS AS MAY PREVIOUSLY HAVE OCCURRED.  CF. ILGWU V. LABOR BOARD, 237
F.2D 545.  WHAT IS REQUIRED IS PROOF, EITHER THAT THE UNION APPROVED
THE VIOLENCE WHICH OCCURRED, OR THAT IT PARTICIPATED ACTIVELY OR BY
KNOWING TOLERANCE IN FURTHER ACTS WHICH WERE IN THEMSELVES ACTIONABLE
UNDER STATE LAW OR INTENTIONALLY DREW UPON THE PREVIOUS VIOLENCE FOR
THEIR FORCE. 

THE RECORD HERE IS PERSUASIVE THAT THE PETITIONER DID WHAT IT COULD
TO STOP OR CURTAIL THE VIOLENCE.  THERE WAS REPEATED AND UNCONTRADICTED
TESTIMONY THAT WHEN NEWS OF THE VIOLENCE REACHED THE MEETING THAT
GILBERT WAS ATTENDING, HE WAS GIVEN FIRM INSTRUCTIONS TO RETURN TO THE
SCENE, TO ASSUME CONTROL OF THE STRIKE, TO SUPPRESS VIOLENCE, TO LIMIT
THE SIZE OF THE PICKET LINE, AND TO ASSURE THAT NO OTHER AREA MINES
WERE AFFECTED.  (FN30)  HE SUCCEEDED.  ALTHOUGH THE DAY AFTER HIS
RETURN TWO CONSOLIDATED OFFICERS WERE HARASSED BY A LARGE AND UNRULY
MOB IN A NEARBY TOWN, THIS INCIDENT WAS UNRELATED TO RESPONDENT, AND
WAS NOT REPEATED.  THERE WAS NO FURTHER VIOLENCE AT THE MINE SITE, AND
THE NUMBER OF PICKETS WAS REDUCED TO A VERY FEW.  OTHER MINES IN THE
IMMEDIATE AREA, INCLUDING TWO WORKED ON LEASE BY GIBBS, CONTINUED TO
OPERATE, ALTHOUGH STRENUOUS EFFORT WAS REQUIRED TO ACCOMPLISH THIS; ONE
UNION OFFICIAL TESTIFIED, "I THOUGHT I WAS GOING TO GET WHIPPED TWO OR
THREE TIMES BY MEMBERS OF THE LOCAL WHO OPPOSED THIS POLICY."  (FN31) 

TO BE SURE, THERE WAS TESTIMONY THAT GILBERT AND, THROUGH HIM, THE
INTERNATIONAL UNION WERE NOT PLEASED WITH RESPONDENT'S ROLE IN THE
ABORTIVE VENTURE TO OPEN THE GRAY'S CREEK MINES WITH MEMBERS OF THE
SOUTHERN LABOR UNION.  A COMPANY OFFICER TESTIFIED THAT WHEN THE MINES
FINALLY OPENED RESPONDNET WAS NOT HIRED, BECAUSE "HAD I HIRED MR. PAUL
GIBBS NONE OF THESE MINES WOULD BE OPEN TODAY."  RESPONDENT TESTIFIED
THAT GILBERT HAD TOLD HIM, SHORTLY AFTER ASSUMING CONTROL OF THE
STRIKE, "I WANT YOU TO KEEP YOUR DAMN HANDS OFF OF THAT GRAY'S CREEK
AREA OVER THERE, AND TELL THAT SOUTHERN LABOR UNION THAT WE DON'T
INTEND FOR YOU TO WORK THAT MINE."  TO ANOTHER, GILBERT IS ALLEGED TO
HAVE SAID, "HELL, WE CAN'T LET THAT GO ON  ...  PAUL WAS TRYING TO
BRING THIS OTHER UNION IN THERE, AND (GILBERT SAID) HE AIN'T GOING TO
GET BY WITH IT."  A THIRD WITNESS REPORTED REMARKS OF A SIMILAR TENOR. 
RESPONDENT TESTIFIED THAT FEAR FOR HIS OWN SAFETY CAUSED HIM NOT TO
VISIT HIS MINE LEASES AFTER THE EVENTS OF AUGUST 15 AND 16.  HIS
FOREMAN TESTIFIED TO MINOR ACTS OF VIOLENCE AT THE MINE SITE, NEVER
CONNECTED TO ANY PERSON OR PERSONS. 

THE RELEVANT QUESTION, HOWEVER, IS WHETHER GILBERT OR OTHER UMW
REPRESENTATIVES WERE CLEARLY SHOWN TO HAVE ENDORSED VIOLENCE OR THREATS
OF VIOLENCE AS A MEANS OF SETTLING THE DISPUTE.  THE SIXTH CIRCUIT'S
ANSWER WAS THAT THEY HAD.  ITS VIEW OF THE RECORD GAVE IT: 

"THE IMPRESSION THAT THE THREAT OF VIOLENCE REMAINED THROUGHOUT THE
SUCCEEDING DAYS AND MONTHS.  THE NIGHT AND DAY PICKETING THAT FOLLOWED
ITS SPECTACULAR BEGINNING WAS BUT A GUARANTY AND WARNING THAT LIKE
TREATMENT WOULD BE ACCORDED FURTHER ATTEMPTS TO OPEN THE GRAY'S CREEK
AREA.  THE AURA OF VIOLENCE REMAINED TO ENHANCE THE EFFECTIVENESS OF
THE PICKETING.  CERTAINLY THERE IS A THREAT OF VIOLENCE WHEN THE MAN
WHO HAS JUST KNOCKED ME DOWN MY FRONT STEPS CONTINUES TO STAND GUARD AT
MY FRONT DOOR."  343 F.2D, AT 616. 

AN "IMPRESSION" IS TOO EPHEMERAL A PRODUCT TO BE THE RESULT OF "CLEAR
PROOF."  AS WE HAVE SAID, THE MERE FACT OF CONTINUED PICKETING AT THE
MINE SITE IS NOT PROPERLY RELIED UPON TO SHOW RATIFICATION.  BUT EVEN
ACCEPTING THE PASSAGE AS A HOLDING THAT "CLEAR PROOF" OF UMW
INVOLVEMENT IS PRESENT, WE DO NOT SO READ THE RECORD. 

IF THERE WAS A REMAINING THREAT OF VIOLENCE HERE, IT WAS A THREAT
WHICH AROSE FROM THE CONTEXT OF THE DISPUTE, AND NOT FROM THE MANNER IN
WHICH THE INTERNATIONAL UNION WAS SHOWN TO HAVE HANDLED IT. THIS
DISPUTE BEGAN WHEN UNEMPLOYED MINERS IN THE APPALACHIAN HILLS
DISCOVERED THAT JOBS THEY BELIEVED HAD BEEN PROMISED TO THEM WERE BEING
GIVEN TO OTHERS BEHIND THEIR BACKS.  IN CONSIDERING THE VICARIOUS
LIABILITY OF THE INTERNATIONAL UNION, ACCOMMODATION MUST BE MADE FOR
THAT FACT.  THE RECORD HERE CLEARLY BEARS THE CONSTRUCTION THAT THE
INTERNATIONAL UNION EXERTED PRESSURE TO ASSURE THAT RESPONDENT WOULD
LOSE HIS PRESENT JOBS AND OBTAIN NO MORE.  BUT THE RECORD FAILS TO
REBUT PETITIONER'S CONTENTION THAT IT HAD BEEN UNWILLING TO SEE ITS
ENDS ACCOMPLISHED THROUGH VIOLENCE, AND INDEED HAD SOUGHT TO CONTROL
THE EXCESSES WHICH HAD OCCURRED.  SINCE THE RECORD ESTABLISHES ONLY
PEACEFUL ACTIVITIES IN THIS REGARD ON THE PART OF PETITIONER,
RESPONDENT WAS LIMITED TO HIS SEC. 303 REMEDY.  TEAMSTERS UNION V.
MORTON, SUPRA.  ALTHOUGH OUR RESULT WOULD UNDOUBTEDLY BE FIRMER IF THE
PETITIONER HAD ASSURED RESPONDENT THAT, HAVING ASSUMED CONTROL OF THE
STRIKE, IT WOULD PREVENT FURTHER VIOLENCE, IN THE CIRCUMSTANCES OF THIS
CASE THE CRUCIAL FACT OF PETITIONER'S PARTICIPATION IN OR RATIFICATION
OF THE VIOLENCE THAT OCCURRED WAS NOT PROVED TO THE DEGREE OF CERTAINTY
REQUIRED BY SEC. 6.  REVERSED. 

FN1  SECTION 303 OF THE LABOR MANAGEMENT RELATIONS ACT, 1947
PROVIDES: 

"(A)  IT SHALL BE UNLAWFUL, FOR THE PURPOSE OF THIS SECTION ONLY, IN
AN INDUSTRY OR ACTIVITY AFFECTING COMMERCE, FOR ANY LABOR ORGANIZATION
TO ENGAGE IN ANY ACTIVITY OR CONDUCT DEFINED AS AN UNFAIR LABOR
PRACTICE IN SECTION 158(B)(4) OF THIS TITLE. 

"(B)  WHOEVER SHALL BE INJURED IN HIS BUSINES OR PROPERTY BY REASON
OF ANY VIOLATION OF SUBSECTION (A) OF THIS SECTION MAY SUE THEREFOR IN
ANY DISTRICT COURT OF THE UNITED STATES SUBJECT TO THE LIMITATIONS AND
PROVISIONS OF SECTION 185 OF THIS TITLE WITHOUT RESPECT TO THE AMOUNT
IN CONTROVERSY, OR IN ANY OTHER COURT HAVING JURISDICTION OF THE
PARTIES, AND SHALL RECOVER THE DAMAGES BY HIM SUSTAINED AND THE COST OF
THE SUIT."  29 U.S.C. SEC. 187 (1964 ED.). 

NATIONAL LABOR RELATIONS ACT, AS AMENDED, 73 STAT. 542, PROVIDES, IN
RELEVANT PART, THAT: 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS:

*         *         *         *         * 

"(4)(I)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE,
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY
PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE
IN EITHER CASE AN OBJECT THEREOF IS:

 *         *         *         *         * 

"(B)  FORCING OR REQUIRING ANY PERSON TO CEASE USING, SELLING,
HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY
OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING BUSINESS
WITH ANY OTHER PERSON, OR FORCING OR REQUIRING ANY OTHER EMPLOYER TO
RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE REPRESENTATIVE OF
HIS EMPLOYEES UNLESS SUCH LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE
REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS OF SECTION 159 OF
THIS TITLE:  PROVIDED, THAT NOTHING CONTAINED IN THIS CLAUSE (B) SHALL
BE CONSTRUED TO MAKE UNLAWFUL, WHERE NOT OTHERWISE UNLAWFUL, ANY
PRIMARY STRIKE OR PRIMARY PICKETING  ...  ." 

FN2  THESE EVENTS WERE ALSO THE SUBJECT OF TWO PROCEEDINGS BEFORE THE
NATIONAL LABOR RELATIONS BOARD.  IN ONE, THE BOARD FOUND THAT
CONSOLIDATED HAD UNLAWFULLY ASSISTED THE SOUTHERN LABOR UNION IN
VIOLATION OF SEC. 8(A)(2) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, 49 STAT. 452, 29 U.S.C. SEC. 158(A)(2) (1964 ED.), TENNESSEE
CONSOLIDATED COAL CO., 131 N.L.R.B. 536, ENFORCEMENT DENIED SUB NOM.
LABOR BOARD V. TENNESSEE CONSOLIDATED COAL CO., 307 F.2D 374 (C.A. 6TH
CIR. 1962).  IN THE OTHER, IT FOUND THAT LOCAL 5881 HAD ENGAGED IN
COERCIVE PICKETING IN VIOLATION OF SEC. 8(B)(1)(A), 61 STAT. 141, 29
U.S.C. SEC. 158(B)(1)(A) (1964 ED.), LOCAL 5881, UMWA, 130 N.L.R.B.
1181.  THE INTERNATIONAL ITSELF WAS NOT CHARGED IN THIS PROCEEDING, AND
THE BOARD'S CONSIDERATION FOCUSED ENTIRELY ON THE EVENTS OF AUGUST 16. 

FN3  THE ONLY TESTIMONY SUGGESTING THAT GILBERT MIGHT HAVE BEEN AT
THE MINE SITE ON AUGUST 15-16 WAS GIBBS' STATEMENT THAT "WELL,
EVERYTHING HAPPENED SO FAST THERE, I'M THINKING THAT I SEEN MR. GILBERT
DRIVE UP THERE, BUT WHERE HE WENT, I DON'T KNOW."  WHETHER SUCH
TESTIMONY COULD EVER BE SUFFICIENT TO ESTABLISH PRESENCE WE NEED NOT
DECIDE, SINCE RESPONDENT EFFECTIVELY CONCEDED IN THE SIXTH CIRCUIT AND
HERE THAT GILBERT WAS IN MIDDLESBORO WHEN THE VIOLENCE OCCURRED.    FN4
IMMEDIATELY AFTER THE BOARD'S ORDER IN THE PROCEEDINGS AGAINST IT,
NOTE 2, SUPRA, CONSOLIDATED REOPENED THE MINE IT HAD CLOSED DURING THE
SPRING OF 1960, AND HIRED THE MEN OF LOCAL 5881.  LATER, AND WHILE THIS
LITIGATION WAS AWAITING TRIAL, THAT MINE WAS CLOSED AS THE RESULT OF AN
ACCIDENT.  AT THIS POINT, THE FALL OF 1962, THE GRAY'S CREEK MINE WAS
OPENED USING MEMBERS OF LOCAL 5881. 

FN5  SEE DUKES V. BROTHERHOOD OF PAINTERS, LOCAL NO. 437, 191 TENN.
495, 235 S.W.2D 7 (1950); BRUMLEY V. CHATTANOOGA SPEEDWAY & MOTORDROME
CO., 138 TENN. 534, 198 S.W. 775 (1917); DALE V. TEMPLE CO., 186 TENN.
69, 208 S.W.2D 344 (1948). 

FN6  THE QUESTIONS HAD BEEN SUBMITTED TO THE JURY ON A SPECIAL
VERDICT FORM.  THE SUGGESTED REMITTITUR FROM $60,000 TO $30,000 FOR
DAMAGES ON THE EMPLOYMENT CONTRACT AND FROM $100,000 TO $45,000
PUNITIVE DAMAGES WAS ACCEPTED BY RESPONDENT.  IN VIEW OF OUR
DISPOSITION, WE DO NOT REACH PETITIONER'S CONTENTIONS THAT THE VERDICT
MUST BE SET ASIDE IN TOTO FOR PREJUDICIAL SUMMATION BY RESPONDENT'S
COUNSEL, OR BECAUSE THE ACTUAL DAMAGES AWARDED SUBSTANTIALLY EXCEEDED
THE PROOF, AND THE PUNITIVE DAMAGE AWARD MAY HAVE RESTED IN PART ON THE
AWARD OF ACTUAL DAMAGES FOR INTERFERENCE WITH THE HAULAGE CONTRACT,
WHICH WAS VACATED AS UNPROVED. 

FN7  SEE CLARK ON CODE PLEADING, 75 ET SEQ. (1928); CLARK, THE CODE
CAUSE OF ACTION, 33 YALE L.J. 817 (1924); MCCASKILL, ACTIONS AND CAUSES
OF ACTIONS, 34 YALE L.J. 614 (1925); MCCASKILL, ONE FORM OF CIVIL
ACTION BUT WHAT PROCEDURE, FOR THE FEDERAL COURTS, 30 ILL. L. REV. 415
(1935); GAVIT, A "PRAGMATIC DEFINITION" OF THE "CAUSE OF ACTION"?  82
U. PA. L. REV.  129 (1933); CLARK, THE CAUSE OF ACTION, ID., AT 354
(1934); GAVIT, THE CAUSE OF ACTION - A REPLY, ID., AT 695 (1934). 

FN8  SEE ALSO AMERICAN FIRE & CAS. CO. V. FINN, 341 U.S. 6, 12;
MUSHER FOUNDATION, INC. V. ALBA TRADING CO., 127 F.2D 9, 12 (C.A.2D
CIR. 1942)(DISSENTING OPINION OF CLARK, J.). 

FN9  SHULMAN & JAEGERMAN, SOME JURISDICTIONAL LIMITATIONS ON FEDERAL
PROCEDURE, 45 YALE L.J. 393, 397-410 (1936); WECHSLER, FEDERAL
JURISDICTION AND THE REVISION OF THE JUDICIAL CODE, 13 LAW & CONTEMP. 
PROB.  216, 232 (1948); BARRON & HOLTZOFF, FEDERAL PRACTICE AND
PROCEDURE SEC. 23 (1965 SUPP.). 

FN10  SEE, E.G., FED. RULES CIV. PROC. 2, 18-20, 42. 

FN11  E.G., MUSHER FOUNDATION V. ALBA TRADING CO., SUPRA; NOTE, THE
EVOLUTION AND SCOPE OF THE DOCTRINE OF PENDENT JURISDICTION IN THE
FEDERAL COURTS, 62 COL. L. REV. 1018, 1029-1030 (1962). 

FN12  THE QUESTION WHETHER JOINED STATE AND FEDERAL CLAIMS CONSTITUTE
ONE "CASE" FOR JURISDICTIONAL PURPOSES IS TO BE DISTINGUISHED FROM THE
OFTEN EQUALLY DIFFICULT INQUIRY WHETHER ANY "CASE" AT ALL IS PRESENTED,
GULLY V. FIRST NATIONAL BANK, 299 U.S. 109, ALTHOUGH THE ISSUE WHETHER
A CLAIM FOR RELIEF QUALIFIES AS A CASE "ARISING UNDER  ...  THE LAWS OF
THE UNITED STATES" AND THE ISSUE WHETHER FEDERAL AND STATE CLAIMS
CONSTITUTE ONE "CASE" FOR PENDENT JURISDICTION PURPOSES MAY OFTEN
APPEAR TOGETHER, SEE DANN V. STUDEBAKER-PACKARD CORP., 288 F.2D 201,
211-215 (C.A. 6TH CIR. 1961); BORAK V. J.I. CASE CO., 317 F.2D 838, 847
848 (C.A. 7TH CIR. 1963), AFF'D ON OTHER GROUNDS, 377 U.S. 426. 

FN13  CF. ARMSTRONG CO. V. NU-ENAMEL CORP., 305 U.S. 315, 325.  NOTE,
PROBLEMS OF PARALLEL STATE AND FEDERAL REMEDIES, 71 HARV. L. REV. 513,
514 (1958).  WHILE IT IS COMMONPLACE THAT THE FEDERAL RULES OF CIVIL
PROCEDURE DO NOT EXPAND THE JURISDICTION OF FEDERAL COURTS, THEY DO
EMBODY "THE WHOLE TENDENCY OF OUR DECISIONS  ...  TO REQUIRE A
PLAINTIFF TO TRY HIS  ...  WHOLE CASE AT ONE TIME," BALTIMORE S.S. CO.
V. PHILLIPS, SUPRA, AND TO THAT EXTENT EMPHASIZE THE BASIS OF PENDENT
JURISDICTION. 

FN14  MASSACHUSETTS UNIVERSALIST CONVENTION V. HILDRETH & ROGERS CO.,
183 F.2D 497 (C.A. 1ST CIR. 1950); MOYNAHAN V. PARI-MUTUEL EMPLOYEES
GUILD, 317 F.2D 209, 211-212 (C.A. 9TH CIR. 1963); OP. CIT. SUPRA,
NOTES 9 AND 11. 

FN15  SOME HAVE SEEN THIS CONSIDERATION AS THE PRINCIPAL ARGUMENT
AGAINST EXERCISE OF PENDENT JURISDICTION.  THUS, BEFORE ERIE, IT WAS
REMARKED THAT "THE LIMITATIONS ON PENDENT JURISDICTION ARE IN THE WISE
DISCRETION OF THE COURTS TO BE FIXED IN INDIVIDUAL CASES BY THE
EXERCISE OF THAT STATESMANSHIP WHICH IS REQUIRED OF ANY ARBITER OF THE
RELATIONS OF STATES TO NATION IN A FEDERAL SYSTEM."  SHULMAN &
JAEGERMAN, SUPRA, NOTE 9, AT 408.  IN HIS OFT-CITED CONCURRENCE IN
STRACHMAN V. PALMER, 177 F.2D 427, 431 (C.A. 1ST CIR. 1949), JUDGE
MAGRUDER COUNSELED THAT "FEDERAL COURTS SHOULD NOT BE OVEREAGER TO HOLD
ON TO THE DETERMINATION OF ISSUES THAT MIGHT BE MORE APPROPRIATELY LEFT
TO SETTLEMENT IN STATE COURT LITIGATION," AT 433.  SEE ALSO WECHSLER,
SUPRA, NOTE 9, AT 232-233; NOTE, 74 HARV. L. REV.  1660, 1661 (1961);
NOTE, SUPRA, NOTE 11, AT 1043-1044. 

FN16  NOTE, SUPRA, NOTE 11, AT 1025-1026; WHAM-O-MFG.  CO. V.
PARADISE MFG. CO., 327 F.2D 748, 752-754 (C.A. 9TH CIR. 1964). 

FN17  IN TEAMSTERS UNION V. MORTON, SUPRA, A SIMILAR ANALYSIS WAS
APPLIED TO PERMIT RECOVERY UNDER SEC. 303 OF DAMAGES SUFFERED DURING A
STRIKE CHARACTERIZED BY PROSCRIBED SECONDARY ACTIVITY ONLY TO THE
EXTENT THAT THE DAMAGES CLAIMED WERE THE PROXIMATE RESULT OF SUCH
ACTIVITY; DAMAGES FOR ASSOCIATED PRIMARY STRIKE ACTIVITY COULD NOT BE
RECOVERED. 

FN18  IT WOULD OF COURSE BE RELEVANT IF THE BOARD HAD ALREADY
INTERVENED AND AS HERE, NOTE 2, SUPRA, ISSUED AN ORDER WHICH PERMITTED
THE CONTINUANCE OF PEACEFUL PICKETING ACTIVITY. 

FN19  ON THE FLEXIBILITY OF "CONSPIRACY" AS A TORT, SEE ORIGINAL
BALLET RUSSE, LTD. V. BALLET THEATRE, INC., 133 F.2D 187, 189 (C.A.2D
CIR. 1943); RILEY V. DUN & BRADSTREET, INC., 195 F.2D 812 (C.A. 6TH
CIR. 1952); CHARLESWORTH, CONSPIRACY AS A GROUND OF LIABILITY IN TORT,
36 L.Q. REV. 38 (1920); BURDICK, CONSPIRACY AS A CRIME, AND AS A TORT,
7 COL. L. REV. 229 (1907); BURDICK, THE TORT OF CONSPIRACY, 8 COL. L.
REV. 117 (1908).  THE ANTI-LABOR USES OF THE DOCTRINE ARE WELL
ILLUSTRATED IN SAYRE, LABOR AND THE COURTS, 39 YALE L.J. 682, 684-687
(1930).  SIMILAR DANGERS ARE PRESENTED BY THE TORT OF MALICIOUS
INTERFERENCE WITH CONTRACT, ID., AT 691-695, A DOCTRINE EQUALLY YOUNG
WHICH IN ITS ORIGINS REQUIRED A SHOWING OF INTERFERENCE BY FORCE,
THREATS, OR FRAUD, BUT DOES SO NO MORE, SAYRE, INDUCING BREACH OF
CONTRACT, 36 HARV. L. REV. 663 (1923); COMMENT, 56 NW. U.L. REV. 391
(1961). 

FN20  RESPONDENT'S ATTORNEY ARGUED IN SUMMATION: 

"  ...  AND HERE IS THE CONSPIRACY.  MR. PASS (AN OFFICIAL OF
PETITIONER'S) TESTIFIED, WE WANT THAT CONTRACT ALL OVER THIS NATION. 
THAT CONTRACT OR BETTER.  I DON'T GUESS AT THAT, THERE IS HIS
TESTIMONY.  THERE IS NO DEVIATION FROM THAT CONTRACT, MR. TURNBLAZER SO
SAYS, UNLESS IT IS APPROVED IN WASHINGTON.  THEY IMPOSE A NATIONWIDE
CONTRACT ALL OVER THIS NATION, ALL OVER.  I DON'T CARE WHETHER IT IS IN
CANADA OR WEST VIRGINIA OR CALIFORNIA OR TENNESSEE." 

FN21  NOTE 5, SUPRA. 

FN22  IBID. 

FN23  47 STAT. 71, 29 U.S.C. SEC. 106 (1964 ED.). 

FN24  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 2(13), 61 STAT.
139, 29 U.S.C. SEC.  152(13) (1964 ED.); LABOR MANAGEMENT RELATIONS
ACT, 1947, SECS. 301(E), 303(B), 61 STAT.  157, 159, 29 U.S.C. SECS.
185(E), 187(B) (1964 ED.). 

FN25  SEE, E.G., S. REP. NO. 105, 80TH CONG., 1ST SESS., P. 21. 

FN26  THE FULLEST STATEMENT OF THE BASIS FOR SEC. 6 APPEARS IN S.
REP. NO. 163, 72D CONG., 1ST SESS., PP. 19-21. 

FN27  THE PRESENT SEC. 303 WAS INTRODUCED ON THE FLOOR OF THE SENATE
BY SENATOR TAFT, IN RESPONSE TO A MORE SEVERE PROPOSAL WHICH WOULD HAVE
PERMITTED INJUNCTIVE RELIEF AS WELL AS DAMAGES AGAINST SECONDARY
ACTIVITY.  93 CONG. REC. 4769-4770, 4833-4847, 4858-4875 (1947).  THE
TENOR OF THE OPPOSITION MAY BE SEEN IN THOSE PAGES, AND ALSO AT 93
CONG. REC. 4765-4766 (REMARKS OF SENATOR THOMAS); 93 CONG. REC. 6451
6452 (REMARKS OF SENATOR MORSE); 93 CONG.  REC. 6520-6521 (REMARKS OF
SENATOR PEPPER). 

FN28  THE ARGUMENT MIGHT BE MADE THAT IF THERE WERE "CLEAR PROOF"
THAT THE LOCAL UNION WAS RESPONSIBLE, THE RESPONSIBILITY OF THE
INTERNATIONAL UNION VIS-A-VIS ITS LOCAL WOULD BE GOVERNED BY A LESS
DEMANDING STANDARD THAN THAT APPLICABLE FOR DETERMINING THE
RESPONSIBILITY OF A LABOR ORGANIZATION OR ITS OFFICERS ON THE BASIS OF
THE ACTS OF "INDIVIDUAL OFFICERS, MEMBERS, OR AGENTS" OF THE
ORGANIZATION.  SINCE THE LOCAL WAS NOT A PARTY HERE, WE HAVE NO
OCCASION TO ASSESS THIS ISSUE.  LIABILITY OF THE INTERNATIONAL UNION IS
PREMISED ON THE ACTS OF GILBERT AND THE UMW'S OTHER AGENTS, OR NOT AT
ALL. 

FN29  IN CHARGING THE JURY, THE TRIAL JUDGE FIRST INSTRUCTED THE JURY
AT LENGTH THAT THE PLAINTIFF'S BURDEN WAS TO PROVE HIS CASE BY A
PREPONDERANCE OF THE EVIDENCE, AND THAT "IF THE PLAINTIFF CARRIES THE
BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE, HOWEVER SLIGHT THAT
PREPONDERANCE MIGHT BE, HE HAS DONE ALL THAT IS REQUIRED OF HIM AND IS
ENTITLED TO A VERDICT."  IN CONNECTION WITH SUBSTANTIVE DISCUSSION OF
THE STATE CLAIM, HE THEN REMARKED: 

"BEFORE THE DEFENDANT MAY BE HELD RESPONSIBLE FOR THE ACTS OF ITS
AGENTS IN ENTERING INTO A CONSPIRACY DURING THE COURSE OF A LABOR
DISPUTE, THERE MUST BE CLEAR PROOF THAT THE PARTICULAR CONSPIRACY
CHARGED OR THE ACT GENERALLY OF THAT NATURE HAD BEEN EXPRESSLY
AUTHORIZED OR NECESSARILY FOLLOWED FROM A GRANTED AUTHORITY BY THE
DEFENDANT, OR THAT SUCH CONSPIRACY WAS SUBSEQUENTLY RATIFIED BY THE
DEFENDANT AFTER ACTUAL KNOWLEDGE THEREOF." 

THE PHRASE "CLEAR PROOF," REFERRED TO JUST THIS ONCE, WAS NEVER
EXPLAINED.  THE POSSIBILIRY IS STRONG THAT THE JURY EITHER DID NOT
UNDERSTAND THE PHRASE OR COMPLETELY OVERLOOKED IT IN THE CONTEXT OF THE
LENGTHY CHARGE GIVEN.  NO CHALLENGE IS DIRECTLY MADE TO THE CHARGE,
HOWEVER, AND IT DOES NOT APPEAR WHETHER AN OBJECTION WAS ENTERED. 
ACCORDINGLY, WE DO NOT REST JUDGMENT ON THIS POINT. 

FN30  OTHER INTERNATIONAL UNION PERSONNEL WERE ALSO LATER SENT,
PERHAPS IN PART BECAUSE THE UNION WANTED TO PUT ITS BEST FOOT FORWARD
IN THE NLRB PROCEEDINGS, NOTE 2, SUPRA, WHICH ENSUED.  ONE SUCH PERSON
TESTIFIED: 

"  ...  I EXPLAINED TO THEM THAT THE LABOR BOARD WAS THERE
INVESTIGATING AND THAT CERTAINLY ANY MASS PICKETING WOULD ONLY CAUSE
THEM A GREAT DEAL OF TROUBLE, AND INSTRUCTED THEM THAT THEY SHOULD
LIMIT THE NUMBER OF THEIR PICKETS AND UNDER NO CIRCUMSTANCES HAVE ANY
VIOLENCE OR ANY THREATS OF VIOLENCE TO ANY PERSON COMING INTO OR NEAR
THAT AREA." 

FN31  ABOUT SIX DAYS AFTER THE VIOLENCE, AN EARTHMOVING EQUIPMENT
SALESMAN DRIVING BY THE ENTRANCE TO THE MINE SITE STOPPED TO ASK HOW HE
MIGHT GET TO ANOTHER MINE.  GILBERT WAS PRESENT AMONG THE PICKETERS,
AND GAVE HIM INSTRUCTIONS.  GILBERT TOLD THE SALESMAN THAT HE "COULDN'T
GET THROUGH" THE ROAD CHOSEN, AND SHOULD APPROACH BY ANOTHER ROUTE; HE
SAID THE SALESMAN SHOULD TELL ANY UNION MEN HE MET THAT HE HAD SPOKEN
TO GILBERT.  A SINISTER CAST CAN BE PUT ON THIS INCIDENT, BUT IT SHOWS
CLEARLY ONLY THAT GILBERT WAS IN CONTROL OF THE STRIKE AND THAT
OPERATIONS UNRELATED TO GRAY'S CREEK WERE NOT BEING INTERFERED WITH. 
IT IS SIGNIFICANT THAT THE SALESMAN DID NOT CLAIM TO HAVE BEEN STOPPED
BY FORCE OR THREATENED IN ANY WAY; IT APPEARS HE DID NO MORE THAN SEEK
DIRECTIONS, AND RECEIVED NO MORE IN RETURN. 

THE CHIEF JUSTICE TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, CONCURRING. 

I AGREE WITH AND JOIN IN PART I OF THE COURT'S OPINION RELATING TO
PENDENT JURISDICTION.  AS TO PART II, I REFRAIN FROM JOINING THE
COURT'S SPECULATIONS ABOUT THE USES TO WHICH IT MAY PUT THE PRE-EMPTION
DOCTRINE IN SIMILAR FUTURE CASES.  THE HOLDING IN PART III THAT THE
NORRIS-LA GUARDIA ACT REQUIRES REVERSAL HERE SEEMS TO ME CORRECT, BUT
MY INTERPRETATION OF THE STATUTE IS DIFFERENT AND SOMEWHAT NARROWER
THAN THAT OF THE COURT. 

THE STATUTORY REQUIREMENT FOR UNION LIABILITY IN THIS CASE IS "CLEAR
PROOF OF ACTUAL PARTICIPATION IN, OR ACTUAL AUTHORIZATION OF  ...  THE
UNLAWFUL ACTS, OR OF RATIFICATION OF SUCH ACTS AFTER ACTUAL KNOWLEDGE
THEREOF."  (FN1)  THE COURT CONSTRUES THIS PROVISION AS FIXING A NEW
TEST OF THE QUANTUM OF PROOF, SOMEWHERE BETWEEN ORDINARY CIVIL AND
CRIMINAL STANDARDS.  I DO NOT THINK THE ADMITTEDLY VAGUE LEGISLATIVE
HISTORY IMPORTS THIS READING, AND I BELIEVE IT INTRODUCES A REVEALING
INCONSISTENCY SINCE THE NEW TEST COULD NOT BE APPLIED TO CRIMINAL
CASES, CONCEDEDLY GOVERNED BY THE SAME STATUTORY LANGUAGE, WITHOUT
STANDING THE STATUTE ON ITS HEAD BY HAVING IT REDUCE PRESENT QUANTUM-OF
PROOF REQUIREMENTS IN CRIMINAL CASES, THAT IS, PROOF "BEYOND A
REASONABLE DOUBT."  THE BEST READING I CAN GIVE THE STATUTE, ABSENT
MORE LIGHT THAN HAS BEEN SHED UPON IT IN THIS CASE, IS ONE DIRECTING IT
AGAINST A PARTICULAR TYPE OF INFERENTIAL PROOF OF AUTHORITY OR
RATIFICATION UNACCEPTABLE TO THOSE WHO FRAMED THE LAW.  FOR ME, THE
GIST OF THE STATUTE IS THAT IN THE USUAL INSTANCE A UNION' CARRYING ON
OF ITS NORMAL STRIKE FUNCTIONS AND ITS FAILURE TO TAKE AFFIRMATIVE
ACTION TO DISPEL MISCONDUCT ARE NOT IN THEMSELVES PROOF OF
AUTHORIZATION OR RATIFICATION OF THE WRONGDOING.  (FN2) 

IN THE PRESENT CASE, APART FROM A FEW QUITE AMBIGUOUS EPISODES, THERE
WAS NOTHING TO BRING THE VIOLENCE HOME TO THE UNION EXCEPT, AS THE
SIXTH CIRCUIT STRESSED (SEE P. 741, ANTE), THAT THE UNION CONTINUED
THROUGH ITS PICKETING THE THREAT THAT THE EARLIER VIOLENCE WOULD BE
RENEWED AND DID NOT REPUDIATE THE VIOLENCE OR PROMISE TO OPPOSE ITS
RENEWAL.  WHATEVER ARGUMENTS COULD BE MADE FOR IMPOSING LIABILITY IN
SUCH A SITUATION, I THINK IT APPROXIMATES WHAT THE STATUTE WAS DESIGNED
TO FORBID.  ON THIS BASIS, I CONCUR IN THE REVERSAL. 

FN1  NORRIS-LA GUARDIA ACT, SEC. 6, 47 STAT. 71, 29 U.S.C. SEC. 106
(1964 ED.).  THE SECTION IS QUOTED IN FULL AT P. 735, ANTE.    FN2  THE
PRINCIPAL LEGISLATIVE DOCUMENT, S. REP. NO. 163, 72 CONG., 1ST SESS.,
PP. 19-21, IS NOT VERY ILLUMINATING BUT IT DOES AT THE END OF ITS
DISCUSSION OF THE SECTION MAKE REFERENCE TO FRANKFURTER & GREENE, THE
LABOR INJUNCTION 74-75 (1930).  AT THESE PAGES, TO ILLUSTRATE RULINGS
ON UNION RESPONSIBILITY THAT ARE DEEMED IMPROPER, THAT BOOK STATES:
"'AUTHORIZATION' HAS BEEN FOUND AS A FACT WHERE THE UNLAWFUL ACTS 'HAVE
BEEN ON SUCH A LARGE SCALE, AND IN POINT OF TIME AND PLACE SO CONNECTED
WITH THE ADMITTED CONDUCT OF THE STRIKE, THAT IT IS IMPOSSIBLE ON THE
RECORD HERE TO VIEW THEM IN ANY OTHER LIGHT THAN AS DONE IN FURTHERANCE
OF A COMMON PURPOSE AND AS PART OF A COMMON PLAN'; WHERE THE UNION HAS
FAILED TO DISCIPLINE THE WRONG-DOER; WHERE THE UNION HAS GRANTED STRIKE
BENEFITS."  (FOOTNOTES OMITTED.)  SEE ALSO ID., AT 220-221, N. 42;
UNITED BROTHERHOOD OF CARPENTERS V.  UNITED STATES, 330 U.S. 395, 418
419 AND NO. 2 (FRANKFURTER, J., DISSENTING). 
..END :







UNITED STATES V. GUEST 383 U.S. 745 


NO. 65.  ARGUED NOVEMBER 9, 1965 - DECIDED MARCH 28, 1966 - 246 F. SUPP.
475, REVERSED AND REMANDED. 


APPELLEES, SIX PRIVATE INDIVIDUALS, WERE INDICTED UNDER 18 U.S.C. SEC.
241, FOR CONSPIRING TO DEPRIVE NEGRO CITIZENS IN THE VICINITY OF
ATHENS, GEORGIA, OF THE FREE EXERCISE AND ENJOYMENT OF RIGHTS SECURED
TO THEM BY THE CONSTITUTION AND LAWS OF THE UNITED STATES, VIZ., THE
RIGHT TO USE STATE FACILITIES WITHOUT DISCRIMINATION ON THE BASIS OF
RACE, THE RIGHT FREELY TO ENGAGE IN INTERSTATE TRAVEL, AND THE RIGHT TO
EQUAL ENJOYMENT OF PRIVATELY OWNED PLACES OF PUBLIC ACCOMMODATION, NOW
GUARANTEED BY TITLE II OF THE CIVIL RIGHTS ACT OF 1964.  THE INDICTMENT
SPECIFIED VARIOUS MEANS BY WHICH THE OBJECTS OF THE CONSPIRACY WOULD BE
ACHIEVED, INCLUDING CAUSING THE ARREST OF NEGROES BY MEANS OF FALSE
REPORTS OF THEIR CRIMINAL ACTS.  THE DISTRICT COURT DISMISSED THE
INDICTMENT ON THE GROUND THAT IT DID NOT INVOLVE RIGHTS WHICH ARE
ATTRIBUTES OF NATIONAL CITIZENSHIP, TO WHICH IT DEEMED SEC. 241 SOLELY
APPLICABLE.  THE COURT ALSO HELD THE PUBLIC-ACCOMMODATION ALLEGATION
LEGALLY INADEQUATE FOR FAILURE TO ALLEGE DISCRIMINATORY MOTIVATION
WHICH THE COURT THOUGHT ESSENTIAL TO CHARGE AN INTERFERENCE WITH A
RIGHT SECURED BY TITLE II, AND BECAUSE THE ENFORCEMENT REMEDIES IN
TITLE II WERE DEEMED EXCLUSIVE.  THE UNITED STATES APPEALED DIRECTLY TO
THIS COURT UNDER THE CRIMINAL APPEALS ACT.  HELD: 

1.  THIS COURT HAS NO JURISDICTION UNDER THE CRIMINAL APPEALS ACT TO
REVIEW THE INVALIDATION OF THAT PORTION OF THE INDICTMENT CONCERNING
INTERFERENCE WITH THE RIGHT TO USE PUBLIC ACCOMMODATIONS, THE DISTRICT
COURT'S RULING WITH RESPECT THERETO BEING BASED, AT LEAST
ALTERNATIVELY, NOT ON A CONSTRUCTION OF A STATUTE, BUT ON WHAT THE
COURT CONCEIVED TO BE A PLEADING DEFECT.  PP. 749-752. 

2.  THE ALLEGATION IN THE INDICTMENT OF STATE INVOLVEMENT IN THE
CONSPIRACY CHARGED UNDER SEC. 241 WAS SUFFICIENT TO CHARGE A VIOLATION
OF RIGHTS PROTECTED BY THE FOURTEENTH AMENDMENT.  PP. 753-757. 

(A)  SECTION 241 INCLUDES WITHIN ITS COVERAGE FOURTEENTH AMENDMENT
RIGHTS WHETHER ARISING UNDER THE EQUAL PROTECTION CLAUSE, AS IN THIS
CASE, OR UNDER THE DUE PROCESS CLAUSE, AS IN UNITED STATES V. PRICE,
POST, P. 787.  P. 753. 

(B)  AS CONSTRUED TO PROTECT FOURTEENTH AMENDMENT RIGHTS SEC. 241 IS
NOT UNCONSTITUTIONALLY VAGUE SINCE BY VIRTUE OF ITS BEING A CONSPIRACY
STATUTE IT OPERATES ONLY AGAINST AN OFFENDER ACTING WITH SPECIFIC
INTENT TO INFRINGE THE RIGHT IN QUESTION (SCREWS V. UNITED STATES, 325
U.S. 91) AND THE RIGHT TO EQUAL USE OF PUBLIC FACILITIES DESCRIBED IN
THE INDICTMENT HAS BEEN MADE DEFINITE BY DECISIONS OF THIS COURT.  PP.
753-754. 

(C)  THE STATE'S INVOLVEMENT NEED BE NEITHER EXCLUSIVE NOR DIRECT IN
ORDER TO CREATE RIGHTS UNDER THE EQUAL PROTECTION CLAUSE.  PP. 755
756. 

(D)  THE ALLEGATION CONCERNING THE ARREST OF NEGROES BY MEANS OF
FALSE REPORTS WAS SUFFICIENTLY BROAD TO COVER A CHARGE OF ACTIVE
CONNIVANCE BY STATE AGENTS OR OTHER OFFICIAL DISCRIMINATORY CONDUCT
CONSTITUTING A DENIAL OF RIGHTS PROTECTED BY THE EQUAL PROTECTION
CLAUSE.  PP. 756-757. 

3.  SECTION 241 REACHES CONSPIRACIES SPECIFICALLY DIRECTED AGAINST
THE EXERCISE OF THE CONSTITUTIONAL RIGHT TO TRAVEL FREELY FROM STATE TO
STATE AND TO USE HIGHWAYS AND OTHER INSTRUMENTALITIES FOR THAT PURPOSE;
THE DISTRICT COURT THEREFORE ERRED IN DISMISSING THE BRANCH OF THE
INDICTMENT RELATING TO THAT RIGHT.  PP. 757-760. 

UNITED STATES V. GUEST ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF GEORGIA. 

MR. JUSTICE STEWARD DELIVERED THE OPINION OF THE COURT. 

THE SIX DEFENDANTS IN THIS CASE WERE INDICTED BY A UNITED STATES
GRAND JURY IN THE MIDDLE DISTRICT OF GEORGIA FOR CRIMINAL CONSPIRACY IN
VIOLATION OF 18 U.S.C. SEC. 241 (1964 ED.).  THAT SECTION PROVIDES IN
RELEVANT PART: 

"IF TWO OR MORE PERSONS CONSPIRE TO INJURE, OPPRESS, THREATEN, OR
INTIMADATE ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT
OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES, OR BECAUSE OF HIS HAVING SO EXERCISED THE SAME: 

     *         *      *         *         * 

"THEY SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN
TEN YEARS, OR BOTH." 

IN FIVE NUMBERED PARAGRAPHS, THE INDICTMENT ALLEGED A SINGLE
CONSPIRACY BY THE DEFENDANTS TO DEPRIVE NEGRO CITIZENS OF THE FREE
EXERCISE AND ENJOYMENT OF SEVERAL SPECIFIED RIGHTS SECURED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES.  (FN1)  THE DEFENDANTS
MOVED TO DISMISS THE INDICTMENT ON THE GROUND THAT IT DID NOT CHARGE AN
OFFENSE UNDER THE LAWS OF THE UNITED STATES.  THE DISTRICT COURT
SUSTAINED THE MOTION AND DISMISSED THE INDICTMENT AS TO ALL DEFENDANTS
AND ALL NUMBERED PARAGRAPHS OF THE INDICTMENT.  246 F. SUPP. 475. 

THE UNITED STATES APPEALED DIRECTLY TO THIS COURT UNDER THE CRIMINAL
APPEALS ACT, 18 U.S.C. SEC. 3731.  (FN2)  WE POSTPONED DECISION OF THE
QUESTION OF OUR JURISDICTION TO THE HEARING ON THE MERITS.  381 U.S.
932.  IT IS NOW APPARENT THAT THIS COURT DOES NOT HAVE JURISDICTION TO
DECIDE ONE OF THE ISSUES SOUGHT TO BE RAISED ON THIS DIRECT APPEAL.  AS
TO THE OTHER ISSUES, HOWEVER, OUR APPELLATE JURISDICTION IS CLEAR, AND
FOR THE REASONS THAT FOLLOW, WE REVERSE THE JUDGMENT OF THE DISTRICT
COURT.  AS IN UNITED STATES V. PRICE, POST, P. 787, DECIDED TODAY, WE
DEAL HERE WITH ISSUES OF STATUTORY CONSTRUCTION, NOT WITH ISSUES OF
CONSTITUTIONAL POWER. 

                                        I. 

THE FIRST NUMBERED PARAGRAPH OF THE INDICTMENT, REFLECTING A PORTION
OF THE LANGUAGE OF SEC. 201(A) OF THE CIVIL RIGHTS ACT OF 1964, 42
U.S.C. SEC. 2000AA) (1964 ED.), ALLEGED THAT THE DEFENDANTS CONSPIRED
TO INJURE, OPPRESS, THREATEN, AND INTIMIDATE NEGRO CITIZENS IN THE FREE
EXERCISE AND ENJOYMENT OF: 

"THE RIGHT TO THE FULL AND EQUAL ENJOYMENT OF THE GOODS, SERVICES,
FACILITIES, PRIVILEGES, ADVANTAGES, AND ACCOMMODATIONS OF MOTION
PICTURE THEATERS, RESTAURANTS, AND OTHER PLACES OF PUBLIC
ACCOMMODATION."  (FN3) 

THE DISTRICT COURT HELD THAT THIS PARAGRAPH OF THE INDICTMENT FAILED
TO STATE AN OFFENSE AGAINST RIGHTS SECURED BY THE CONSTITUTION OR LAWS
OF THE UNITED STATES.  THE COURT FOUND A FATAL FLAW IN THE FAILURE OF
THE PARAGRAPH TO INCLUDE AN ALLEGATION THAT THE ACTS OF THE DEFENDANTS
WERE MOTIVATED BY RACIAL DISCRIMINATION, AN ALLEGATION THE COURT
THOUGHT ESSENTIAL TO CHARGE AN INTERFERENCE WITH RIGHTS SECURED BY
TITLE II OF THE CIVIL RIGHTS ACT OF 1964.  (FN4)  THE COURT WENT ON TO
SAY THAT, IN ANY EVENT, 18 U.S.C. SEC. 241 IS NOT AN AVAILABLE SANCTION
TO PROTECT RIGHTS SECURED BY THAT TITLE BECAUSE SEC. 207(B) OF THE 1964
ACT, 42 U.S.C. SEC. 2000A-6(B) (1964 ED.), SPECIFIES THAT THE REMEDIES
PROVIDED IN TITLE II ITSELF ARE TO BE THE EXCLUSIVE MEANS OF ENFORCING
THE RIGHTS THE TITLE SECURES.  (FN5) 

A DIRECT APPEAL TO THIS COURT IS AVAILABLE TO THE UNITED STATES UNDER
THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC 3731, FROM "A DECISION OR
JUDGMENT  ...  DISMISSING ANY INDICTMENT  ...  OR ANY COUNT THEREOF,
WHERE SUCH DECISION OR JUDGMENT IS BASED UPON THE  ...  CONSTRUCTION OF
THE STATUTE UPON WHICH THE INDICTMENT  ...  IS FOUNDED."  IN THE
PRESENT CASE, HOWEVER, THE DISTRICT COURT'S JUDGMENT AS TO THE FIRST
PARAGRAPH OF THE INDICTMENT WAS BASED, AT LEAST ALTERNATIVELY, UPON ITS
DETERMINATION THAT THIS PARAGRAPH WAS DEFECTIVE AS A MATTER OF
PLEADING.  SETTLED PRINCIPLES OF REVIEW UNDER THE CRIMINAL APPEALS ACT
THEREFORE PRECLUDE OUR REVIEW OF THE DISTRICT COURT'S JUDGMENT ON THIS
BRANCH OF THE INDICTMENT.  IN UNITED STATES V. BORDEN CO., 308 U.S.
188, CHIEF JUSTICE HUGHES, SPEAKING FOR A UNANIMOUS COURT, SET OUT
THESE PRINCIPLES WITH CHARACTERISTIC CLARITY: 

"THE ESTABLISHED PRINCIPLES GOVERNING OUR REVIEW ARE THESE:  (1)
APPEAL DOES NOT LIE FROM A JUDGMENT WHICH RESTS ON THE MERE
DEFICIENCIES OF THE INDICTMENT AS A PLEADING, AS DISTINGUISHED FROM A
CONSTRUCTION OF THE STATUTE WHICH UNDERLIES THE INDICTMENT.  (2) NOR
WILL AN APPEAL LIE IN A CASE WHERE THE DISTRICT COURT HAS CONSIDERED
THE CONSTRUCTION OF THE STATUTE BUT HAS ALSO RESTED ITS DECISION UPON
THE INDEPENDENT GROUND OF A DEFECT IN PLEADING WHICH IS NOT SUBJECT TO
OUR EXAMINATION.  IN THAT CASE WE CANNOT DISTURB THE JUDGMENT AND THE
QUESTION OF CONSTRUCTION BECOMES ABSTRACT.  (3) THIS COURT MUST ACCEPT
THE CONSTRUCTION GIVEN TO THE INDICTMENT BY THE DISTRICT COURT AS THAT
IS A MATTER WE ARE NOT AUTHORIZED TO REVIEW  ...  ."  308 U.S., AT
193. 

SEE ALSO UNITED STATES V. SWIFT & CO., 318 U.S. 442, 444. 

THE RESULT IS NOT CHANGED BY THE CIRCUMSTANCE THAT WE HAVE
JURISDICTION OVER THIS APPEAL AS TO THE OTHER PARAGRAPHS OF THE
INDICTMENT.  UNITED STATES V. BORDEN, SUPRA, INVOLVED AN INDICTMENT
COMPARABLE TO THE PRESENT ONE FOR THE PURPOSES OF JURISDICTION UNDER
THE CRIMINAL APPEALS ACT.  IN BORDEN, THE DISTRICT COURT HAD HELD ALL
FOUR COUNTS OF THE INDICTMENT INVALID AS A MATTER OF CONSTRUCTION OF
THE SHERMAN ACT, BUT HAD ALSO HELD THE THIRD COUNT DEFECTIVE AS A
MATTER OF PLEADING.  THE COURT ACCEPTED JURISDICTION ON DIRECT APPEAL
AS TO THE FIRST, SECOND, AND FOURTH COUNTS OF THE INDICTMENT, BUT IT
DISMISSED THE APPEAL AS TO THE THIRD COUNT FOR WANT OF JURISDICTION. 
"THE GOVERNMENT'S APPEAL DOES NOT OPEN THE WHOLE CASE."  308 U.S. 188,
193. 

IT IS HARDLY NECESSARY TO ADD THAT OUR RULING AS TO THE COURT'S LACK
OF JURISDICTION NOW TO REVIEW THIS ASPECT OF THE CASE IMPLIES NO
OPINION WHATSOEVER AS TO THE CORRECTNESS EITHER OF THE DISTRICT COURT'S
APPRAISAL OF THIS PARAGRAPH OF THE INDICTMENT AS A MATTER OF PLEADING
OR OF THE COURT'S VIEW OF THE PRECLUSIVE EFFECT OF SEC. 207(B) OF THE
CIVIL RIGHTS ACT OF 1964. 

                                  II. 

THE SECOND NUMBERED PARAGRAPH OF THE INDICTMENT ALLEGED THAT THE
DEFENDANTS CONSPIRED TO INJURE, OPPRESS, THREATEN, AND INTIMIDATE NEGRO
CITIZENS OF THE UNITED STATES IN THE FREE EXERCISE AND ENJOYMENT OF: 

"THE RIGHT TO THE EQUAL UTILIZATION, WITHOUT DISCRIMINATION UPON THE
BASIS OF RACE, OF PUBLIC FACILITIES IN THE VICINITY OF ATHENS, GEORGIA,
OWNED, OPERATED OR MANAGED BY OR ON BEHALF OF THE STATE OF GEORGIA OR
ANY SUBDIVISION THEREOF." 

CORRECTLY CHARACTERIZING THIS PARAGRAPH AS EMBRACING RIGHTS PROTECTED
BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, THE
DISTRICT COURT HELD AS A MATTER OF STATUTORY CONSTRUCTION THAT 18 U.S.C
SEC. 241 DOES NOT ENCOMPASS ANY FOURTEENTH AMENDMENT RIGHTS, AND
FURTHER HELD AS A MATTER OF CONSTITUTIONAL LAW THAT "ANY BROADER
CONSTRUCTION OF SEC. 241  ...  WOULD RENDER IT VOID FOR
INDEFINITENESS."  246 F. SUPP., AT 486.  IN SO HOLDING, THE DISTRICT
COURT WAS IN ERROR, AS OUR OPINION IN UNITED STATES V. PRICE, POST, P.
787, DECIDED TODAY, MAKES ABUNDANTLY CLEAR. 

TO BE SURE, PRICE INVOLVES RIGHTS UNDER THE DUE PROCESS CLAUSE,
WHEREAS THE PRESENT CASE INVOLVES RIGHTS UNDER THE EQUAL PROTECTION
CLAUSE.  BUT NO POSSIBLE REASON SUGGESTS ITSELF FOR CONCLUDING THAT
SEC. 241 - IF IT PROTECTS FOURTEENTH AMENDMENT RIGHTS - PROTECTS RIGHTS
SECURED BY THE ONE CLAUSE BUT NOT THOSE SECURED BY THE OTHER.  WE HAVE
MADE CLEAR IN PRICE THAT WHEN SEC. 241 SPEAKS OF "ANY RIGHT OR
PRIVILEGE SECURED  ...  BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES."  IT MEANS PRECISELY THAT. 

MOREOVER, INCLUSION OF FOURTEENTH AMENDMENT RIGHTS WITHIN THE COMPASS
OF 18 U.S.C.  SEC. 241 DOES NOT RENDER THE STATUTE UNCONSTITUTIONALLY
VAGUE.  SINCE THE GRAVAMEN OF THE OFFENSE IS CONSPIRACY, THE
REQUIREMENT THAT THE OFFENDER MUST ACT WITH A SPECIFIC INTENT TO
INTERFERE WITH THE FEDERAL RIGHTS IN QUESTION IS SATISFIED.  SCREWS V.
UNITED STATES, 325 U.S. 91; UNITED STATES V. WILLIAMS, 341 U.S. 70, 93
95 (DISSENTING OPINION).  AND THE RIGHTS UNDER THE EQUAL PROTECTION
CLAUSE DESCRIBED BY THIS PARAGRAPH OF THE INDICTMENT HAVE BEEN SO
FIRMLY AND PRECISELY ESTABLISHED BY A CONSISTENT LINE OF DECISIONS IN
THIS COURT, (FN6) THAT THE LACK OF SPECIFICATION OF THESE RIGHTS IN THE
LANGUAGE OF SEC. 241 ITSELF CAN RAISE NO SERIOUS CONSTITUTIONAL
QUESTION ON THE GOUND OF VAGUENESS OR INDEFINITENESS. 

UNLIKE THE INDICTMENT IN PRICE, HOWEVER, THE INDICTMENT IN THE
PRESENT CASE NAMES NO PERSON ALLEGED TO HAVE ACTED IN ANY WAY UNDER THE
COLOR OF STATE LAW.  THE ARGUMENT IS THEREFORE MADE THAT, SINCE THERE
EXIST NO EQUAL PROTECTION CLAUSE RIGHTS AGAINST WHOLLY PRIVATE ACTION,
THE JUDGMENT OF THE DISTRICT COURT ON THIS BRANCH OF THE CASE MUST BE
AFFIRMED.  ON ITS FACE, THE ARGUMENT IS UNEXCEPTIONABLE.  THE EQUAL
PROTECTION CLAUSE SPEAKS TO THE STATE OR TO THOSE ACTING UNDER THE
COLOR OF ITS AUTHORITY.  (FN7) 

IN THE CONNECTION, WE EMPHASIZE THAT SEC. 241 BY ITS CLEAR LANGUAGE
INCORPORATES NO MORE THAN THE EQUAL PROTECTION CLAUSE ITSELF; THE
STATUTE DOES NOT PURPORT TO GIVE SUBSTANTIVE, AS OPPOSED TO REMEDIAL,
IMPLEMENTATION TO ANY RIGHTS SECURED BY THAT CLAUSE.  (FN8)  SINCE WE
THEREFORE DEAL HERE ONLY WITH THE BARE TERMS OF THE EQUAL PROTECTION
CLAUSE ITSELF, NOTHING SAID IN THIS OPINION GOES TO THE QUESTION OF
WHAT KINDS OF OTHER AND BROADER LEGISLATION CONGRESS MIGHT
CONSTITUTIONALLY ENACT UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT TO
IMPLEMENT THAT CLAUSE OR ANY OTHER PROVISION OF THE AMENDMENT.  (FN9) 

IT IS A COMMONPLACE THAT RIGHTS UNDER THE EQUAL PROTECTION CLAUSE
ITSELF ARISE ONLY WHERE THERE HAS BEEN INVOLVEMENT OF THE STATE OR OF
ONE ACTING UNDER THE COLOR OF ITS AUTHORITY.  THE EQUAL PROTECTION
CLAUSE "DOES NOT  ...  ADD ANY THING TO THE RIGHTS WHICH ONE CITIZEN
HAS UNDER THE CONSTITUTION AGAINST ANOTHER."  UNITED STATES V.
CRUIKSHANK, 92 U.S. 542, 554-555.  AS MR. JUSTICE DOUGLAS MORE RECENTLY
PUT IT, "THE FOURTEENTH AMENDMENT PROTECTS THE INDIVIDUAL AGAINST STATE
ACTION, NOT AGAINST WRONGS DONE BY INDIVIDUALS."  UNITED STATES V.
WILLIAMS, 341 U.S. 70, 92 (DISSENTING OPINION).  THIS HAS BEEN THE VIEW
OF THE COURT FROM THE BEGINNING.  UNITED STATES V. CRUIKSHANK, SUPRA;
UNITED STATES V. HARRIS, 106 U.S. 629; CIVIL RIGHTS CASES, 109 U.S. 3;
HODGES V. UNITED STATES, 203 U.S. 1; UNITED STATES V. POWELL, 212 U.S.
564.  IT REMAINS THE COURT'S VIEW TODAY.  SEE, E.G., EVANS V. NEWTON,
382 U.S. 296; UNITED STATES V. PRICE, POST, P. 787. 

THIS IS NOT TO SAY, HOWEVER, THAT THE INVOLVEMENT OF THE STATE NEED
BE EITHER EXCLUSIVE OR DIRECT.   IN A VARIETY OF SITUATIONS THE COURT
HAS FOUND STATE ACTION OF A NATURE SUFFICIENT TO CREATE RIGHTS UNDER
THE EQUAL PROTECTION CLAUSE EVEN THOUGH THE PARTICIPATION OF THE STATE
WAS PERIPHERAL, OR ITS ACTION WAS ONLY ONE OF SEVERAL CO-OPERATIVE
FORCES LEADING TO THE CONSTITUTIONAL VIOLATION.  SEE, E.G., SHELLEY V.
KRAEMER, 334 U.S. 1; PENNSYLVANIA V. BOARD OF TRUSTS, 353 U.S. 230;
BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715; PETERSON V. CITY
OF GREENVILLE, 373 U.S. 244; LOMBARD V. LOUISIANA, 373 U.S. 267;
GRIFFIN V. MARYLAND, 378 U.S. 130; ROBINSON V. FLORIDA, 378 U.S. 153;
EVANS V. NEWTON, SUPRA.

THIS CASE, HOWEVER, REQUIRES NO DETERMINATION OF THE THRESHOLD LEVEL
THAT STATE ACTION MUST ATTAIN IN ORDER TO CREATE RIGHTS UNDER THE EQUAL
PROTECTION CLAUSE.  THIS IS SO BECAUSE, CONTRARY TO THE ARGUMENT OF THE
LITIGANTS, THE INDICTMENT IN FACT CONTAINS AN EXPRESS ALLEGATION OF
STATE INVOLVEMENT SUFFICIENT AT LEAST TO REQUIRE THE DENIAL OF A MOTION
TO DISMISS.  ONE OF THE MEANS OF ACCOMPLISHING THE OBJECT OF THE
CONSPIRACY, ACCORDING TO THE INDICTMENT, WAS "BY CAUSING THE ARREST OF
NEGROES BY MEANS OF FALSE REPORTS THAT SUCH NEGROES HAD COMMITTED
CRIMINAL ACTS."  (FN10)  IN BELL V. MARYLAND, 378 U.S. 226, THREE
MEMBERS OF THE COURT EXPRESSED THE VIEW THAT A PRIVATE BUSINESSMAN'S
INVOCATION OF STATE POLICE AND JUDICIAL ACTION TO CARRY OUT HIS OWN
POLICY OF RACIAL DISCRIMINATION WAS SUFFICIENT TO CREATE EQUAL
PROTECTION CLAUSE RIGHTS IN THOSE AGAINST WHOM THE RACIAL
DISCRIMINATION WAS DIRECTED.  (FN11)  THREE OTHER MEMBERS OF THE COURT
STRONGLY DISAGREED WITH THAT VIEW, (FN12) AND THREE EXPRESSED NO
OPINION ON THE QUESTION.  THE ALLEGATION OF THE EXTENT OF OFFICIAL
INVOLVEMENT IN THE PRESENT CASE IS NOT CLEAR.  IT MAY CHARGE NO MORE
THAN CO-OPERATIVE PRIVATE AND STATE ACTION SIMILAR TO THAT INVOLVED IN
BELL, BUT IT MAY GO CONSIDERABLY FURTHER.  FOR EXAMPLE, THE ALLEGATION
IS BROAD ENOUGH TO COVER A CHARGE OF ACTIVE CONNIVANCE BY AGENTS OF THE
STATE IN THE MAKING OF THE "FALSO REPORTS,"  OR OTHER CONDUCT AMOUNTING
TO OFFICIAL DISCRIMINATION CLEARLY SUFFICIENT TO CONSTITUTE DENIAL OF
RIGHTS PROTECTED BY THE EQUAL PROTECTION CLAUSE.  ALTHOUGH IT IS
POSSIBLE THAT A BILL OF PARTICULARS, OR THE PROOF IF THE CASE GOES TO
TRIAL, WOULD DISCLOSE NO CO-OPERATIVE ACTION OF THAT KIND BY OFFICIALS
OF THE STATE, THE ALLEGATION IS ENOUGH TO PREVENT DISMISSAL OF THIS
BRANCH OF THE INDICTMENT. 
III. 

THE FOURTH NUMBERED PARAGRAPH OF THE INDICTMENT ALLEGED THAT THE
DEFENDANTS CONSPIRED TO INJURE, OPPRESS, THREATEN, AND INTIMIDATE NEGRO
CITIZENS OF THE UNITED STATES IN THE FREE EXERCISE AND ENJOYMENT OF: 

"THE RIGHT TO TRAVEL FREELY TO AND FROM THE STATE OF GEORGIA AND TO
USE HIGHWAY FACILITIES AND OTHER INSTRUMENTALITIES OF INTERSTATE
COMMERCE WITHIN THE STATE OF GEORGIA."  (FN13) 

THE DISTRICT COURT WAS IN ERROR IN DISMISSING THE INDICTMENT AS TO
THIS PARAGRAPH.  THE CONSTITUTIONAL RIGHT TO TRAVEL FROM ONE STATE TO
ANOTHER, AND NECESSARILY TO USE THE HIGHWAYS AND OTHER
INSTRUMENTALITIES OF INTERSTATE COMMERCE IN DOING SO, OCCUPIES A
POSITION FUNDAMENTAL TO THE CONCEPT OF OUR FEDERAL UNION.  IT IS A
RIGHT THAT HAS BEEN FIRMLY ESTABLISHED AND REPEATEDLY RECOGNIZED.  IN
CRANDALL V. NEVADA, 6 WALL.  35, INVALIDATING A NEVADA TAX ON EVERY
PERSON LEAVING THE STATE BY COMMON CARRIER, THE COURT TOOK AS ITS GUIDE
THE STATEMENT OF CHIEF JUSTICE TANEY IN THE PASSENGER CASES, 7 HOW. 
283, 492: 

"FOR ALL THE GREAT PURPOSES FOR WHICH THE FEDERAL GOVERNMENT WAS
FORMED, WE ARE ONE PEOPLE, WITH ONE COMMON COUNTRY.  WE ARE ALL
CITIZENS OF THE UNITED STATES; AND, AS MEMBERS OF THE SAME COMMUNITY,
MUST HAVE THE RIGHT TO PASS AND REPASS THROUGH EVERY PART OF IT WITHOUT
INTERRUPTION, AS FREELY AS IN OUR OWN STATES." 

SEE 6 WALL., AT 48-49. 

ALTHOUGH THE ARTICLES OF CONFEDERATION PROVIDED THAT "THE PEOPLE OF
EACH STATE SHALL HAVE FREE INGRESS AND REGRESS TO AND FROM ANY OTHER
STATE," (FN14) THAT RIGHT FINDS NO EXPLICIT MENTION IN THE
CONSTITUTION.  THE REASON, IT HAS BEEN SUGGESTED, IS THAT A RIGHT SO
ELEMENTARY WAS CONCEIVED FROM THE BEGINNING TO BE A NECESSARY
CONCOMITANT OF THE STRONGER UNION THE CONSTITUTION CREATED.  (FN15) IN
ANY EVENT, FREEDOM TO TRAVEL THROUGHOUT THE UNITED STATES HAS LONG BEEN
RECOGNIZED AS A BASIC RIGHT UNDER THE CONSTITUTION.  SEE WILLIAMS V.
FEARS, 179 U.S. 270, 274; TWINING V. NEW JERSEY, 211 U.S. 78, 97;
EDWARDS V. CALIFORNIA, 314 U.S. 160, 177 (CONCURRING OPINION), 181
(CONCURRING OPINION); NEW YORK V. O'NEILL, 359 U.S. 1, 6-8; 12-16
(DISSENTING OPINION). 

IN EDWARDS V. CALIFORNIA, 314 U.S. 160, INVALIDATING A CALIFORNIA LAW
WHICH IMPEDED THE FREE INTERSTATE PASSAGE OF THE INDIGENT, THE COURT
BASED ITS REAFFIRMATION OF THE FEDERAL RIGHT OF INTERSTATE TRAVEL UPON
THE COMMERCE CLAUSE.  THIS GROUND OF DECISION WAS CONSISTENT WITH
PRECEDENTS FIRMLY ESTABLISHING THAT THE FEDERAL COMMERCE POWER SURELY
ENCOMPASSES THE MOVEMENT IN INTERSTATE COMMERCE OF PERSONS AS WELL AS
COMMODITIES.  GLOUCESTER FERRY CO. V. PENNSYLVANIA, 114 U.S. 196, 203;
COVINGTON & CINCINNATI BRIDGE CO. V. KENTUCKY, 154 U.S. 204, 218-219;
HOKE V. UNITED STATES, 227 U.S. 308, 320; UNITED STATES V. HILL, 248
U.S. 420, 423.  IT IS ALSO WELL SETTLED IN OUR DECISIONS THAT THE
FEDERAL COMMERCE POWER AUTHORIZES CONGRESS TO LEGISLATE FOR THE
PROTECTION OF INDIVIDUALS FROM VIOLATIONS OF CIVIL RIGHTS THAT IMPINGE
ON THEIR FREE MOVEMENT IN INTERSTATE COMMERCE.  MITCHELL V. UNITED
STATES, 313 U.S. 80; HENDERSON V. UNITED STATES, 339 U.S. 816; BOYNTON
V. VIRGINIA, 364 U.S. 454; ATLANTA MOTEL V. UNITED STATES, 379 U.S.
241; KATZENBACH V. MCCLUNG, 379 U.S. 294. 

ALTHOUGH THERE HAVE BEEN RECURRING DIFFERENCES IN EMPHASIS WITHIN THE
COURT AS TO THE SOURCE OF THE CONSTITUTIONAL RIGHT OF INTERSTATE
TRAVEL, THERE IS NO NEED HERE TO CANVASS THOSE DIFFERENCES FURTHER. 
(FN16)  ALL HAVE AGREED THAT THE RIGHT EXISTS.  ITS EXPLICIT
RECOGNITION AS ONE OF THE FEDERAL RIGHTS PROTECTED BY WHAT IS NOW 18
U.S.C. SEC. 241 GOES BACK AT LEAST AS FAR AS 1904.  UNITED STATES V.
MOORE, 129 F. 630, 633.  WE REAFFIRM IT NOW.  (FN17) 

THIS DOES NOT MEAN, OF COURSE, THAT EVERY CRIMINAL CONSPIRACY
AFFECTING AN INDIVIDUAL'S RIGHT OF FREE INTERSTATE PASSAGE IS WITHIN
THE SANCTION OF 18 U.S.C. SEC. 241.  A SPECIFIC INTENT TO INTERFERE
WITH THE FEDERAL RIGHT MUST BE PROVED, AND AT A TRIAL THE DEFENDANTS
ARE ENTITLED TO A JURY INSTRUCTION PHRASED IN THOSE TERMS.  SCREWS V.
UNITED STATES, 325 U.S. 91, 106-107.  THUS, FOR EXAMPLE, A CONSPIRACY
TO ROB AN INTERSTATE TRAVELER WOULD NOT, OF ITSELF, VIOLATE SEC. 241. 
BUT IF THE PREDOMINANT PURPOSE OF THE CONSPIRACY IS TO IMPEDE OR
PREVENT THE EXERCISE OF THE RIGHT OF INTERSTATE TRAVEL, OR TO OPPRESS A
PERSON BECAUSE OF HIS EXERCISE OF THAT RIGHT, THEN, WHETHER OR NOT
MOTIVATED BY RACIAL DISCRIMINATION, THE CONSPIRACY BECOMES A PROPER
OBJECT OF THE FEDERAL LAW UNDER WHICH THE INDICTMENT IN THIS CASE WAS
BROUGHT.  ACCORDINGLY, IT WAS ERROR TO GRANT THE MOTION TO DISMISS ON
THIS BRANCH OF THE INDICTMENT. 

FOR THESE REASONS, THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND
THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE INDICTMENT, FILED ON OCTOBER 16, 1964, WAS AS FOLLOWS: 

"THE GRAND JURY CHARGES: 

"COMMENCING ON OR ABOUT JANUARY 1, 1964, AND CONTINUING TO THE DATE
OF THIS INDICTMENT, HERBERT GUEST, JAMES SPERGEON LACKEY, CECIL WILLIAM
MYERS, DENVER WILLIS PHILLIPS, JOSEPH HOWARD SIMS, AND GEORGE HAMPTON
TURNER, DID, WITHIN THE MIDDLE DISTRICT OF GEORGIA, ATHENS DIVISION,
CONSPIRE TOGETHER, WITH EACH OTHER, AND WITH OTHER PERSONS TO THE GRAND
JURY UNKNOWN, TO INJURE, OPPRESS, THREATEN, AND INTIMIDATE NEGRO
CITIZENS OF THE UNITED STATES IN THE VICINITY OF ATENS, GEORGIA, IN THE
FREE EXERCISE AND ENJOYMENT BY SAID NEGRO CITIZENS OF THE FOLLOWING
RIGHTS AND PRIVILEGES SECURED TO THEM BY THE CONSTITUTION AND LAWS OF
THE UNITED STATES: 

"1.  THE RIGHT TO THE FULL AND EQUAL ENJOYMENT OF THE GOODS,
SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES, AND ACCOMMODATIONS OF
MOTION PICTURE THEATERS, RESTAURANTS, AND OTHER PLACES OF PUBLIC
ACCOMMODATION; 

"2.  THE RIGHT TO THE EQUAL UTILIZATION, WITHOUT DISCRIMINATION UPON
THE BASIS OF RACE, OF PUBLIC FACILITIES IN THE VICINITY OF ATHENS,
GEORGIA, OWNED, OPERATED OR MANAGED BY OR ON BEHALF OF THE STATE OF
GEORGIA OR ANY SUBDIVISION THEREOF: 

"3.  THE RIGHT TO THE FULL AND EQUAL USE ON THE SAME TERMS AS WHITE
CITIZENS OF THE PUBLIC STREETS AND HIGHWAYS IN THE VICINITY OF ATHENS,
GEORGIA: 

"4.  THE RIGHT TO TRAVEL FREELY TO AND FROM THE STATE OF GEORGIA AND
TO USE HIGHWAY FACILITIES AND OTHER INSTRUMENTALITIES OF INTERSTATE
COMMERCE WITHIN THE STATE OF GEORGIA: 

"5.  OTHER RIGHTS EXERCISED AND ENJOYED BY WHITE CITIZENS IN THE
VICINITY OF ATHENS, GEORGIA. 

"IT WAS A PART OF THE PLAN AND PURPOSE OF THE CONSPIRACY THAT ITS
OBJECTS BE ACHIEVED BY VARIOUS MEANS, INCLUDING THE FOLLOWING: 

"1.  BY SHOOTING NEGROES: 

"2.  BY BEATING NEGROES: 

"3.  BY KILLING NEGROES: 

"4.  BY DAMAGING AND DESTROYING PROPERTY OF NEGROES: 

"5.  BY PURSUING NEGROES IN AUTOMOBILES AND THREATENING THEM WITH
GUNS: 

"6.  BY MAKING TELEPHONE CALLS TO NEGROES TO THREATEN THEIR LIVES,
PROPERTY, AND PERSONS, AND BY MAKING SUCH THREATS IN PERSON: 

"7.  BY GOING IN DISGUISE ON THE HIGHWAY AND ON THE PREMISES OF OTHER
PERSONS: 

"8.  BY CAUSING THE ARREST OF NEGROES BY MEANS OF FALSE REPORTS THAT
SUCH NEGROES HAD COMMITTED CRIMINAL ACTS; AND: 

"9.  BY BURNING CROSSES AT NIGHT IN PUBLIC VIEW. 

"ALL IN VIOLATION OF SECTION 241, TITLE 18, UNITED STATES CODE." 

THE ONLY ADDITIONAL INDICATION IN THE RECORD CONCERNING THE FACTUAL
DETAILS OF THE CONDUCT WITH WHICH THE DEFENDANTS WERE CHARGED IS THE
STATEMENT OF THE DISTRICT COURT THAT:  "IT IS COMMON KNOWLEDGE THAT TWO
OF THE DEFENDANTS, SIMS AND MYERS, HAVE ALREADY BEEN PROSECUTED IN THE
SUPERIOR COURT OF MADISON COUNTY, GEORGIA FOR THE MURDER OF LEMUEL A.
PENN AND BY A JURY FOUND NOT GUILTY."  246 F. SUPP. 475, 487. 

FN2  THIS APPEAL CONCERNS ONLY THE FIRST FOUR NUMBERED PARAGRAPHS OF
THE INDICTMENT.  THE GOVERNMENT CONCEDED IN THE DISTRICT COURT THAT THE
FIFTH PARAGRAPH ADDED NOTHING TO THE INDICTMENT, AND NO QUESTION IS
RAISED HERE AS TO THE DISMISSAL OF THAT PARAGRAPH. 

FN3  SECTION 201(A) OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. SEC.
2000AA) (1964 ED.), PROVIDES: 

"ALL PERSONS SHALL BE ENTITLED TO THE FULL AND EQUAL ENJOYMENT OF THE
GOODS, SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES, AND ACCOMMODATIONS
OF ANY PLACE OF PUBLIC ACCOMMODATION, AS DEFINED IN THIS SECTION,
WITHOUT DISCRIMINATION OR SEGREGATION ON THE GROUND OF RACE, COLOR,
RELIGION, OR NATIONAL ORIGIN." 

THE CRITERIA FOR COVERAGE OF MOTION PICTURE THEATERS BY THE ACT ARE
STATED IN SECS. 201(B)(3) AND 201(C)(3), 42 U.S.C. SECS. 2000AB)(3) AND
2000AC)(3) (1964 ED.); THE CRITERIA FOR COVERAGE OF RESTAURANTS ARE
STATED IN SECS. 201(B)(2) AND 201(C)(2), 42 U.S.C. SECS.  2000AB)(2)
AND 2000AC)(2) (1964 ED.).  NO ISSUE IS RAISED HERE AS TO THE FAILURE
OF THE INDICTMENT TO ALLEGE SPECIFICALLY THAT THE ACT IS APPLICABLE TO
THE PLACES OF PUBLIC ACCOMMODATION DESCRIBED IN THIS PARAGRAPH OF THE
INDICTMENT. 

FN4  THE DISTRICT COURT SAID:  "THE GOVERNMENT CONTENDS THAT THE
RIGHTS ENUMRATED IN PARAGRAPH 1 STEM FROM TITLE 2 OF THE CIVIL RIGHTS
ACT OF 1964, AND THUS AUTOMATICALLY COME WITHIN THE PURVIEW OF SEC.
241.  THE GOVERNMENT CONCEDED ON ORAL ARGUMENT THAT PARAGRAPH ONE WOULD
ADD NOTHING TO THE INDICTMENT ABSENT THE ACT.  IT IS NOT CLEAR HOW THE
RIGHTS MENTIONED IN PARAGRAPH ONE CAN BE SAID TO COME FROM THE ACT
BECAUSE SEC. 201(A), UPON WHICH THE DRAFTSMAN DOUBTLESS RELIED, LISTS
THE ESSENTIAL ELEMENT 'WITHOUT DISCRIMINATION OR SEGREGATION ON THE
GOUND OF RACE, COLOR, RELIGION, OR NATIONAL ORIGIN.'  THIS ELEMENT IS
OMITTED FROM PARAGRAPH ONE OF THE INDICTMENT, AND DOES NOT APPEAR IN
THE CHARGING PART OF THE INDICTMENT.  THE SUPREME COURT SAID IN
CRUIKSHANK, SUPRA, 92 U.S. AT PAGE 556, WHERE DEPRIVATION OF RIGHT TO
VOTE WAS INVOLVED: 

"' WE MAY SUSPECT THAT "RACE WAS THE CAUSE OF THE HOSTILITY; BUT IT
IS NOT SO AVERRED.  THIS IS MATERIAL TO A DESCRIPTION OF THE SUBSTANCE
OF THE OFFENSE AND CANNOT BE SUPPLIED BY IMPLICATION.  EVERYTHING
ESSENTIAL MUST BE CHARGED POSITIVELY, NOT INFERENTIALLY.  THE DEFECT
HERE IS NOT IN FORM, BUT IN SUBSTANCE.'"  256 F. SUPP. 475, 484. 

FN5  SECTION 207(B) OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. SEC.
2000A-6(B) (1964 ED.), STATES:

"THE REMEDIES PROVIDED IN THIS TITLE SHALL BE THE EXCLUSIVE MEANS OF
ENFORCING THE RIGHTS BASED ON THIS TITLE, BUT NOTHING IN THIS TITLE
SHALL PRECLUDE ANY INDIVIDUAL OR ANY STATE OR LOCAL AGENCY FROM
ASSERTING ANY RIGHT BASED ON ANY OTHER FEDERAL OR STATE LAW NOT
INCONSISTENT WITH THIS TITLE, INCLUDING ANY STATUTE OR ORDINANCE
REQUIRING NONDISCRIMINATION IN PUBLIC ESTABLISHMENTS OR ACCOMMODATIONS,
OR FROM PURSUING ANY REMEDY, CIVIL OR CRIMINAL, WHICH MAY BE AVAILABLE
FOR THE VINDICATION OR ENFORCEMENT OF SUCH RIGHT." 

RELYING ON THIS PROVISION AND ITS LEGISLATIVE HISTORY, THE DISTRICT
COURT SAID:  "IT SEEMS CRYSTAL CLEAR THAT THE CONGRESS IN ENACTING THE
CIVIL RIGHTS ACT OF 1964 DID NOT INTEND TO SUBJECT ANYONE TO ANY
POSSIBLE CRIMINAL PENALTIES EXCEPT THOSE SPECIFICALLY PROVIDED FOR IN
THE ACT ITSELF."  246 F. SUPP., AT 485. 

FN6  SEE, E.G., BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (SCHOOLS);
NEW ORLEANS CITY PARK IMPROVEMENT ASSN. V. DETIEGE, 358 U.S. 54, WRIGHT
V. GEORGIA, 373 U.S. 284, WATSON V. MEMPHIS, 373 U.S. 526, CITY OF NEW
ORLEANS V. BARTHE, 376 U.S. 189 (PARKS AND PLAYGROUNDS); HOLMES V. CITY
OF ATLANTA, 350 U.S. 879 (GOLF COURSE); MAYOR AND CITY COUNCIL OF
BALTIMORE CITY V. DAWSON, 350 U.S. 877 (BEACH); MUIR V. LOUISVILLE PARK
THEATRICAL ASSN., 347 U.S. 971 (AUDITORIUM); JOHNSON V. VIRGINIA, 373
U.S. 61 (COURTHOUSE); BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S.
715 (PARKING GARAGE); TURNER V. CITY OF MEMPHIS, 369 U.S. 350
(AIRPORT). 

FN7  "NO STATE SHALL  ...  DENY TO ANY PERSON WITHIN ITS JURISDICTION
THE EQUAL PROTECTION OF THE LAWS." 

FN8  SEE P. 747, SUPRA. 

FN9  THUS, CONTRARY TO THE SUGGESTION IN MR. JUSTICE BRENNAN'S
SEPARATE OPINION, NOTHING SAID IN THIS OPINION HAS THE SLIGHTEST
BEARING ON THE VALIDITY OR CONSTRUCTION OF TITLE III OR TITLE IV OF THE
CIVIL RIGHTS ACT OF 1964, 42 U.S.C. SECS. 2000B, 2000C (1964 ED.). 

FN10  SEE NOTE 1, SUPRA. 

FN11  378 U.S. 226, AT 242 (SEPARATE OPINION OF MR. JUSTICE DOUGLAS);
ID., AT 286 (SEPARATE OPINION OF MR. JUSTICE GOLDBERG). 

FN12  ID., AT 318 (DISSENTING OPINION OF MR. JUSTICE BLACK). 

FN13  THE THIRD NUMBERED PARAGRAPH ALLEGED THAT THE DEFENDANTS
CONSPIRED TO INJURE, OPPRESS, THREATEN, AND INTIMIDATE NEGRO CITIZENS
OF THE UNITED STATES IN THE FREE EXERCISE AND ENJOYMENT OF: 

"THE RIGHT TO THE FULL AND EQUAL USE ON THE SAME TERMS AS WHITE
CITIZENS OF THE PUBLIC STREETS AND HIGHWAYS IN THE VICINITY OF ATHENS,
GEORGIA." 

INSOFAR AS THE THIRD PARAGRAPH REFERS TO THE USE OF LOCAL PUBLIC
FACILITIES, IT IS COVERED BY THE DISCUSSION OF THE SECOND NUMBERED
PARAGRAPH OF THE INDICTMENT IN PART II OF THIS OPINION.  INSOFAR AS THE
THIRD PARAGRAPH REFERS TO THE USE OF STREETS OR HIGHWAYS IN INTERSTATE
COMMERCE, IT IS COVERED BY THE PRESENT DISCUSSION OF THE FOURTH
NUMBERED PARAGRAPH OF THE INDICTMENT. 

FN14  ART. IV, ARTICLES OF CONFEDERATION. 

FN15  SEE  CHAFEE, THREE HUMAN RIGHTS IN THE CONSTITUTION OF 1787, AT
185 (1956). 

FN16  THE DISTRICT COURT RELIED HEAVILY ON UNITED STATES V. WHEELER,
254 U.S. 281, IN DISMISSING THIS BRANCH OF THE INDICTMENT.  THAT CASE
INVOLVED AN ALLEGED CONSPIRACY TO COMPEL RESIDENTS OF ARIZONA TO MOVE
OUT OF THAT STATE.  THE RIGHT OF INTERSTATE TRAVEL WAS, THEREFORE, NOT
DIRECTLY INVOLVED.  WHATEVER CONTINUING VALIDITY WHEELER MAY HAVE AS
RESTRICTED TO ITS OWN FACTS, THE DICTA IN THE WHEELER OPINION RELIED ON
BY THE DISTRICT COURT IN THE PRESENT CASE HAVE BEEN DISCREDITED IN
SUBSEQUENT DECISIONS.  CF. EDWARDS V. CALIFORNIA, 314 U.S. 160, 177,
180 (DOUGLAS, J., CONCURRING); UNITED STATES V. WILLIAMS, 341 U.S. 70,
80.    FN17  AS EMPHASIZED IN MR. JUSTICE HARLAN'S SEPARATE OPINION,
SEC. 241 PROTECTS ONLY AGAINST INTERFERENCE WITH RIGHTS SECURED BY
OTHER FEDERAL LAWS OR BY THE CONSTITUTION ITSELF.  THE RIGHT TO
INTERSTATE TRAVEL IS A RIGHT THAT THE CONSTITUTION ITSELF GUARANTEES,
AS THE CASES CITED IN THE TEXT MAKE CLEAR.  ALTHOUGH THESE CASES IN
FACT INVOLVED GOVERNMENTAL INTERFERENCE WITH THE RIGHT OF FREE
INTERSTATE TRAVEL, THEIR REASONING FULLY SUPPORTS THE CONCLUSION THAT
THE CONSTITUTIONAL RIGHT OF INTERSTATE TRAVEL IS A RIGHT SECURED
AGAINST INTERFERENCE FROM ANY SOURCE WHATEVER, WHETHER GOVERNMENTAL OR
PRIVATE.  IN THIS CONNECTION, IT IS IMPORTANT TO REITERATE THAT THE
RIGHT TO TRAVEL FREELY FROM STATE TO STATE FINDS CONSTITUTIONAL
PROTECTION THAT IS QUITE INDEPENDENT OF THE FOURTEENTH AMENDMENT. 

WE ARE NOT CONCERNED HERE WITH THE EXTENT TO WHICH INTERSTATE TRAVEL
MAY BE REGULATED OR CONTROLLED BY THE EXERCISE OF A STATE'S POLICE
POWER ACTING WITHIN THE CONFINES OF THE FOURTEENTH AMENDMENT.  SEE
EDWARDS V. CALIFORNIA, 314 U.S. 160, 184 (CONCURRING OPINION); NEW YORK
V. O'NEILL, 359 U.S. 1, 6-8.  NOR IS THERE ANY ISSUE HERE AS TO THE
PERMISSIBLE EXTENT OF FEDERAL INTERFERENCE WITH THE RIGHT WITHIN THE
CONFINES OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  CF. ZEMEL
V. RUSK, 381 U.S. 1; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500; KENT
V. DULLES, 357 U.S. 116. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE FORTAS
JOIN, CONCURRING. 

I JOIN THE OPINION OF THE COURT IN THIS CASE BUT BELIEVE IT
WORTHWHILE TO COMMENT ON ITS PART II IN WHICH THE COURT DISCUSSES THAT
PORTION OF THE INDICTMENT CHARGING THE APPELLEES WITH CONSPIRING TO
INJURE, OPPRESS, THREATEN AND INTIMIDATE NEGRO CITIZENS OF THE UNITED
STATES IN THE FREE EXERCISE AND ENJOYMENT OF: 

"THE RIGHT TO THE EQUAL UTILIZATION, WITHOUT DISCRIMINATION UPON THE
BASIS OF RACE, OF PUBLIC FACILITIES IN THE VACINITY OF ATHENS, GEORGIA,
OWNED, OPERATED OR MANAGED BY OR ON BEHALF OF THE STATE OF GEORGIA OR
ANY SUBDIVISION THEREOF." 

THE APPELLEES CONTEND THAT THE INDICTMENT IS INVALID SINCE 18 U.S.C.
SEC. 241, UNDER WHICH IT WAS RETURNED, PROTECTS ONLY AGAINST
INTERFERENCE WITH THE EXERCISE OF THE RIGHT TO EQUAL UTILIZATION OF
STATE FACILITIES, WHICH IS NOT A RIGHT "SECURED" BY THE FOURTEENTH
AMENDMENT IN THE ABSENCE OF STATE ACTION.  WITH RESPECT TO THIS
CONTENTION THE COURT UPHOLDS THE INDICTMENT ON THE GROUND THAT IT
ALLEGES THE CONSPIRACY WAS ACCOMPLISHED, IN PART, "BY CAUSING THE
ARREST OF NEGROES BY MEANS OF FALSE REPORTS THAT SUCH NEGROES HAD
COMMITTED CRIMINAL ACTS."  THE COURT REASONS THAT THIS ALLEGATION OF
THE INDICTMENT MIGHT WELL COVER ACTIVE CONNIVANCE BY AGENTS OF THE
STATE IN THE MAKING OF THESE FALSE REPORTS OR IN CARRYING ON OTHER
CONDUCT AMOUNTING TO OFFICIAL DISCRIMINATION.  BUT SO CONSTRUING THE
INDICTMENT, IT FINDS THE LANGUAGE SUFFICIENT TO COVER A DENIAL OF
RIGHTS PROTECTED BY THE EQUAL PROTECTION CLAUSE.  THE COURT THUS
REMOVES FROM THE CASE ANY NECESSITY FOR A "DETERMINATION OF THE
THRESHOLD LEVEL THAT STATE ACTION MUST ATTAIN IN ORDER TO CREATE RIGHTS
UNDER THE EQUAL PROTECTION CLAUSE."  A STUDY OF THE LANGUAGE IN THE
INDICTMENT CLEARLY SHOWS THAT THE COURT'S CONSTRUCTION IS NOT A
CAPRICIOUS ONE, AND I THEREFORE AGREE WITH THE CONSTRUCTION, AS WELL AS
THE CONCLUSION THAT FOLLOWS. 

THE COURT CARVES OUT OF ITS OPINION THE QUESTION OF THE POWER OF
CONGRESS, UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT, TO ENACT
LEGISLATION IMPLEMENTING THE EQUAL PROTECTION CLAUSE OR ANY OTHER
PROVISION OF THE FOURTEENTH AMENDMENT.  THE COURT'S INTERPRETATION OF
THE INDICTMENT CLEARLY AVOIDS THE QUESTION WHETHER CONGRESS, BY
APPROPRIATE LEGISLATION, HAS THE POWER TO PUNISH PRIVATE CONSPIRACIES
THAT INTERFERE WITH FOURTEENTH AMENDMENT RIGHTS, SUCH AS THE RIGHT TO
UTILIZE PUBLIC FACILITIES.  MY BROTHER BRENNAN, HOWEVER, SAYS THAT THE
COURT'S DISPOSITION CONSTITUTES AN ACCEPTANCE OF APPELLEES' AFORESAID
CONTENTION AS TO SEC. 241.  SOME OF HIS LANGUAGE FURTHER SUGGESTS THAT
THE COURT INDICATES SUB SILENTIO THAT CONGRESS DOES NOT HAVE THE POWER
TO OUTLAW SUCH CONSPIRACIES.  ALTHOUGH THE COURT SPECIFICALLY REJECTS
ANY SUCH CONNOTATION, ANTE, P. 755, IT IS, I BELIEVE, BOTH APPROPRIATE
AND NECESSARY UNDER THE CIRCUMSTANCES HERE TO SAY THAT THERE NOW CAN BE
NO DOUBT THAT THE SPECIFIC LANGUAGE OF SEC. 5 EMPOWERS THE CONGRESS TO
ENACT LAWS PUNISHING ALL CONSPIRACIES - WITH OR WITHOUT STATE ACTION -
THAT INTERFERE WITH FOURTEENTH AMENDMENT RIGHTS. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I JOIN PARTS I AND II (FN1) OF THE COURT'S OPINION, BUT I CANNOT
SUBSCRIBE TO PART III IN ITS FULL SWEEP.  TO THE EXTENT THAT IT IS
THERE HELD THAT 18 U.S.C. SEC. 241 (1964 ED.)  REACHES CONSPIRACIES,
EMBRACING ONLY THE ACTION OF PRIVATE PERSONS, TO OBSTRUCT OR OTHERWISE
INTERFERE WITH THE RIGHT OF CITIZENS FREELY TO ENGAGE IN INTERSTATE
TRAVEL, I AM CONSTRAINED TO DISSENT.  ON THE OTHER HAND, I AGREE THAT
SEC. 241 DOES EMBRACE STATE INTERFERENCE WITH SUCH INTERSTATE TRAVEL,
AND I THEREFORE CONSIDER THAT THIS ASPECT OF THE INDICTMENT IS
SUSTAINABLE ON THE REASONING OF PART II OF THE COURT'S OPINION. 

THIS RIGHT TO TRAVEL MUST BE FOUND IN THE CONSTITUTION ITSELF.  THIS
IS SO BECAUSE SEC.  241 DOES EMBRACE STATE INTERFERENCE WITH SUCH
INTERSTATE TRAVEL, AND I THEREFORE CONSIDER THAT THIS ASPECT OF THE
INDICTMENT IS SUSTAINABLE ON THE REASONING OF PART II OF THE COURT'S
OPINION. 

THIS RIGHT TO TRAVEL MUST BE FOUND IN THE CONSTITUTION ITSELF.  THIS
IS SO BECAUSE SEC.  241 COVERS ONLY CONSPIRACIES TO INTERFERE WITH ANY
CITIZEN IN THE "FREE EXERCISE OR ENJOYMENT" OF A RIGHT OR PRIVILEGE
"SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED STATES," AND
NO "RIGHT TO TRAVEL" CAN BE FOUND IN SEC. 241 OR IN ANY OTHER LAW OF
THE UNITED STATES.  MY DISAGREEMENT WITH THIS PHASE OF THE COURT'S
OPINION LIES IN THIS: WHILE PAST CASES DO INDEED ESTABLISH THAT THERE
IS A CONSTITUTIONAL "RIGHT TO TRAVEL" BETWEEN STATES FREE FROM
UNREASONABLE GOVERNMENTAL INTERFERENCE, TODAY'S DECISION IS THE FIRST
TO HOLD THAT SUCH MOVEMENT IS ALSO PROTECTED AGAINST PRIVATE
INTERFERENCE, AND, DEPENDING ON THE CONSTITUTIONAL SOURCE OF THE RIGHT,
I THINK IT EITHER UNWISE OR IMPERMISSIBLE SO TO READ THE CONSTITUTION. 

PRELIMINARILY, NOTHING IN THE CONSTITUTION EXPRESSLY SECURES THE
RIGHT TO TRAVEL.  IN CONTRAST THE ARTICLES OF CONFEDERATION PROVIDED IN
ART. IV: 

"THE BETTER TO SECURE AND PERPETUATE MUTUAL FRIENDSHIP AND
INTERCOURSE AMONG THE PEOPLE OF THE DIFFERENT STATES IN THIS UNION, THE
FREE INHABITANTS OF EACH OF THESE STATES  ...  SHALL BE ENTITLED TO ALL
PRIVILEGES AND IMMUNITIES OF FREE CITIZENS IN THE SEVERAL STATES; AND
THE PEOPLE OF EACH STATE SHALL HAVE FREE INGRESS AND REGRESS TO AND
FROM ANY OTHER STATE, AND SHALL ENJOY THEREIN ALL THE PRIVILEGES OF
TRADE AND COMMERCE, SUBJECT TO THE SAME DUTIES, IMPOSITIONS AND
RESTRICTIONS AS THE INHABITANTS THEREOF RESPECTIVELY  ... ." 

THIS RIGHT TO "FREE INGRESS AND REGRESS" WAS ELIMINATED FROM THE
DRAFT OF THE CONSTITUTION WITHOUT DISCUSSION EVEN THOUGH THE MAIN
OBJECTIVE OF THE CONVENTION WAS TO CREATE A STRONGER UNION.  IT HAS
BEEN ASSUMED THAT THE CLAUSE WAS DROPPED BECAUSE IT WAS SO OBVIOUSLY AN
ESSENTIAL PART OF OUR FEDERAL STRUCTURE THAT IT WAS NECESSARILY
SUBSUMED UNDER MORE GENERAL CLAUSES OF THE CONSTITUTION.  SEE UNITED
STATES V. WHEELER, 254 U.S. 281, 294.  I PROPOSE TO EXAMINE THE SEVERAL
ASSERTED CONSTITUTIONAL BASES FOR THE RIGHT TO TRAVEL, AND THE SCOPE OF
ITS PROTECTION IN RELATION TO EACH SOURCE. 

                                           I. 

BECAUSE OF THE CLOSE PROXIMITY OF THE RIGHT OF INGRESS AND REGRESS TO
THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE ARTICLES OF CONFEDERATION
IT HAS LONG BEEN DECLARED THAT THE RIGHT IS A PRIVILEGE AND IMMUNITY OF
NATIONAL CITIZENSHIP UNDER THE CONSTITUTION.  IN THE INFLUENTIAL
OPINION OF MR. JUSTICE WASHINGTON ON CIRCUIT, CORFIELD V. CORYELL, 4
WASH.  C.C. 371 (1825), THE COURT ADDRESSED ITSELF TO THE QUESTION -
"WHAT ARE THE PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL
STATES?"  ID., AT 380.  CORFIELD WAS CONCERNED WITH A NEW JERSEY
STATUTE RESTRICTING TO STATE CITIZENS THE RIGHT TO RAKE FOR OYSTERS, A
STATUTE WHICH THE COURT UPHELD.  IN ANALYZING THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE CONSTITUTION, ART. IV, SEC 2, THE COURT STATED
THAT IT CONFINED "THESE EXPRESSIONS TO THOSE PRIVILEGES AND IMMUNITIES
WHICH ARE, IN THEIR NATURE, FUNDAMENTAL," AND LISTED AMONG THEM "THE
RIGHT OF A CITIZEN OF ONE STATE TO PASS THROUGH, OR TO RESIDE IN ANY
OTHER STATE, FOR PURPOSES OF TRADE, AGRICULTURE, PROFESSIONAL PURSUITS,
OR OTHERWISE ...  ."  ID., AT 380-381. 

THE DICTUM IN CORFIELD WAS GIVEN GENERAL APPROVAL IN THE FIRST
OPINION OF THIS COURT TO DEAL DIRECTLY WITH THE RIGHT OF FREE MOVEMENT,
CRANDALL V. NEVADA, 6 WALL.  35, WHICH STRUCK DOWN A NEVADA STATUTE
TAXING PERSONS LEAVING THE STATE.  IT IS FIRST NOTEWORTHY THAT IN HIS
CONCURRING OPINION MR. JUSTICE CLIFFORD ASSERTED THAT HE WOULD HOLD THE
STATUTE VOID EXCLUSIVELY ON COMMERCE GROUNDS FOR HE WAS CLEAR "THAT THE
STATE LEGISLATURE CANNOT IMPOSE ANY SUCH BURDEN UPON COMMERCE AMONG THE
SEVERAL STATES."  6 WALL., AT 49.  THE MAJORITY OPINION OF MR. JUSTICE
MILLER, HOWEVER, ESCHEWED RELIANCE ON THE COMMERCE CLAUSE AND THE
IMPORT-EXPORT CLAUSE AND LOOKED RATHER TO THE NATURE OF THE FEDERAL
UNION: 

"THE PEOPLE OF THESE UNITED STATES CONSTITUTE ONE NATION  ...  .
THIS GOVERNMENT HAS NECESSARILY A CAPITAL ESTABLISHED BY LAW  ...  .
THAT GOVERNMENT HAS A RIGHT TO CALL TO THIS POINT ANY OR ALL OF ITS
CITIZENS TO AID IN ITS SERVICE  ...  .  THE GOVERNMENT, ALSO, HAS ITS
OFFICES OF SECONDARY IMPORTANCE IN ALL OTHER PARTS OF THE COUNTRY.  ON
THE SEA-COASTS AND ON THE RIVERS IT HAS ITS PORTS OF ENTRY.  IN THE
INTERIOR IT HAS ITS LAND OFFICES, ITS REVENUE OFFICES, AND ITS SUB
TREASURIES.  IN ALL THESE IT DEMANDS THE SERVICES OF ITS CITIZENS, AND
IS ENTITLED TO BRING THEM TO THOSE POINTS FROM ALL QUARTERS OF THE
NATION, AND NO POWER CAN EXIST IN A STATE TO OBSTRUCT THIS RIGHT THAT
WOULD NOT ENABLE IT TO DEFEAT THE PURPOSES FOR WHICH THE GOVERNMENT WAS
ESTABLISHED."  6 WALL., AT 43-44. 

ACCOMPANYING THIS NEED OF THE FEDERAL GOVERNMENT, THE COURT FOUND A
CORRELATIVE RIGHT OF THE CITIZEN TO MOVE UNIMPEDED THROUGHOUT THE
LAND: 

"HE HAS THE RIGHT TO COME TO THE SEAT OF GOVERNMENT TO ASSERT ANY
CLAIM HE MAY HAVE UPON THAT GOVERNMENT, OR TO TRANSACT ANY BUSINESS HE
MAY HAVE WITH IT.  TO SEEK ITS PROTECTION, TO SHARE ITS OFFICES, TO
ENGAGE IN ADMINISTERING ITS FUNCTIONS.  HE HAS A RIGHT TO FREE ACCESS
TO ITS SEA-PORTS, THROUGH WHICH ALL THE OPERATIONS OF FOREIGN TRADE AND
COMMERCE ARE CONDUCTED, TO THE SUB-TREASURIES, THE LAND OFFICES, THE
REVENUE OFFICES, AND THE COURTS OF JUSTICE IN THE SEVERAL STATES, AND
THIS RIGHT IS IN ITS NATURE INDEPENDENT OF THE WILL OF ANY STATE OVER
WHOSE SOIL HE MUST PASS IN THE EXERCISE OF IT."  6 WALL., AT 44. 

THE FOCUS OF THAT OPINION, VERY CLEARLY, WAS THUS ON IMPEDIMENTS BY
THE STATES ON FREE MOVEMENT BY CITIZENS.  THIS IS EMPHASIZED
SUBSEQUENTLY WHEN MR. JUSTICE MILLER ASSERTS THAT THIS APPROACH IS
"NEITHER NOVEL NOR UNSUPPORTED BY AUTHORITY," BECAUSE IT IS,
FUNDAMENTALLY, A QUESTION OF THE EXERCISE OF A STATE'S TAXING POWER TO
OBSTRUCT THE FUNCTIONS OF THE FEDERAL GOVERNMENT:  "THE RIGHT OF THE
STATES IN THIS MODE TO IMPEDE OR EMBARRASS THE CONSTITUTIONAL
OPERATIONS OF THAT GOVERNMENT, OR THE RIGHTS WHICH ITS CITIZENS HOLD
UNDER IT, HAS BEEN UNIFORMLY DENIED."  6 WALL., AT 44-45. 

LATER CASES, ALLUDING TO PRIVILEGES AND IMMUNITIES, HAVE IN DICTA
INCLUDED THE RIGHT TO FREE MOVEMENT.  SEE PAUL V. VIRGINIA, 8 WALL. 
168, 180; WILLIAMS V. FEARS, 179 U.S. 270, 274; TWINING V. NEW JERSEY,
211 U.S. 78. 

ALTHOUGH THE RIGHT TO TRAVEL THUS HAS RESPECTABLE PRECEDENT TO
SUPPORT ITS STATUS AS A PRIVILEGE AND IMMUNITY OF NATIONAL CITIZENSHIP,
IT IS IMPORTANT TO NOTE THAT THOSE CASES ALL DEALT WITH THE RIGHT OF
TRAVEL SIMPLY AS AFFECTED BY OPPRESSIVE STATE ACTION.  ONLY ONE PRIOR
CASE IN THIS COURT, UNITED STATES V. WHEELER, 254 U.S. 281, WAS ARGUED
PRECISELY IN TERMS OF A RIGHT TO FREE MOVEMENT AS AGAINST INTERFERENCE
BY PRIVATE INDIVIDUALS.  THERE THE GOVERNMENT ALLEGED A CONSPIRACY
UNDER THE PREDECESSOR OF SEC. 241 AGAINST THE PERPETRATORS OF THE
NOTORIOUS BISBEE DEPORTATIONS.  (FN2)  THE CASE WAS ARGUED
STRAIGHTFORWARDLY IN TERMS OF WHETHER THE RIGHT TO FREE INGRESS AND
EGRESS, ADMITTED BY BOTH PARTIES TO BE A RIGHT OF NATIONAL CITIZENSHIP,
WAS CONSTITUTIONALLY GUARANTEED AGAINST PRIVATE CONSPIRACIES.  THE
BRIEF FOR THE DEFENDANTS IN ERROR, WHOSE COUNSEL WAS CHARLES EVANS
HUGHES, LATER CHIEF JUSTICE OF THE UNITED STATES, GIVES AS ONE OF ITS
MAIN POINTS:  "SO FAR AS THERE IS A RIGHT PERTAINING TO FEDERAL
CITIZENSHIP TO HAVE FREE INGRESS OR EGRESS WITH RESPECT TO THE SEVERAL
STATES, THE RIGHT IS ESSENTIALLY ONE OF PROTECTION AGAINST THE ACTION
OF THE STATES THEMSELVES AND OF THOSE ACTING UNDER THEIR AUTHORITY." 
BRIEF, AT P.I.  THE COURT, WITH ONE DISSENT, ACCEPTED THIS
INTERPRETATION OF THE RIGHT OF UNRESTRICTED INTERSTATE MOVEMENT,
OBSERVING THAT CRANDALL V. NEVADA, SUPRA, WAS INAPPLICABLE BECAUSE,
INTER ALIA, IT DEALT WITH STATE ACTION.  254 U.S., AT 299.  MORE RECENT
CASES DISCUSSING OR APPLYING THE RIGHT TO INTERSTATE TRAVEL HAVE ALWAYS
BEEN IN THE CONTEXT OF OPPRESSIVE STATE ACTION.  SEE E.G., EDWARDS V.
CALIFORNIA, 314 U.S. 160, AND OTHER CASES DISCUSSED, INFRA.  (FN3) 

IT IS ACCORDINGLY APPARENT THAT THE RIGHT TO UNIMPEDED INTERSTATE
TRAVEL, REGARDED AS A PRIVILEGE AND IMMUNITY OF NATIONAL CITIZENSHIP,
WAS HISTORICALLY SEEN AS A METHOD OF BREAKING DOWN STATE PROVINCIALISM,
AND FACILITATING THE CREATION OF A TRUE FEDERAL UNION.  IN THE ONE CASE
IN WHICH A PRIVATE CONSPIRACY TO OBSTRUCT SUCH MOVEMENT WAS HERETOFORE
PRESENTED TO THIS COURT, THE PREDECESSOR OF THE VERY STATUTE WE APPLY
TODAY WAS HELD NOT TO ENCOMPASS SUCH A RIGHT. 
                II. 

A SECOND POSSIBLE CONSTITUTIONAL BASIS FOR THE RIGHT TO MOVE AMONG
THE STATES WITHOUT INTERFERENCE IS THE COMMERCE CLAUSE.  WHEN MR.
JUSTICE WASHINGTON ARTICULATED THE RIGHT IN CORFIELD, IT WAS IN THE
CONTEXT OF A STATE STATUTE IMPEDING ECONOMIC ACTIVITY BY OUTSIDERS, AND
HE CAST HIS STATEMENT IN ECONOMIC TERMS.  4 WASH. C.C., AT 380-381. 
THE TWO CONCURRING JUSTICES IN CRANDALL V. NEVADA, SUPRA, RESTED SOLELY
ON THE COMMERCE ARGUMENT, INDICATING AGAIN THE CLOSE CONNECTION BETWEEN
FREEDOM OF COMMERCE AND TRAVEL AS PRINCIPLES OF OUR FEDERAL UNION.  IN
EDWARDS V. CALIFORNIA, 314 U.S. 160, THE COURT HELD SQUARELY THAT THE
RIGHT TO UNIMPEDED MOVEMENT OF PERSONS IS GUARANTEED AGAINST OPPRESSIVE
STATE LEGISLATION BY THE COMMERCE CLAUSE AND DECLARED UNCONSTITUTIONAL
A CALIFORNIA STATUTE RESTRICTING THE ENTRY OF INDIGENTS INTO THAT
STATE. 

APPLICATION OF THE COMMERCE CLAUSE TO THIS AREA HAS THE ADVANTAGE OF
SUPPLYING A LONGER TRADITION OF CASE LAW AND MORE REFINED PRINCIPLES OF
ADJUDICATION.  STATES DO HAVE RIGHTS OF TAXATION AND QUARANTINE, SEE
EDWARDS V. CALIFORNIA, 314 U.S., AT 184 (CONCURRING OPINION), WHICH
MUST BE WEIGHED AGAINST THE GENERAL RIGHT OF FREE MOVEMENT, AND
COMMERCE CLAUSE ADJUDICATION HAS TRADITIONALLY BEEN THE MEANS OF
RECONCILING THESE INTERESTS.  YET THIS APPROACH TO THE RIGHT TO TRAVEL,
LIKE THAT FOUND IN THE PRIVILEGES AND IMMUNITIES CASES, IS CONCERNED
WITH THE INTERRELATION OF STATE AND FEDERAL POWER, NOT - WITH AN
EXCEPTION TO BE DEALT WITH IN A MOMENT - WITH PRIVATE INTERFERENCE. 

THE CASE OF IN RE DEBS, 158 U.S. 564, MAY BE THOUGHT TO RAISE SOME
DOUBTS AS TO THIS PROPOSITION.  THERE THE UNITED STATES SOUGHT TO
ENJOIN DEBS AND MEMBERS OF HIS UNION FROM CONTINUING TO OBSTRUCT - BY
MEANS OF A STRIKE - INTERSTATE COMMERCE AND THE PASSAGE OF THE MAILS. 
THE COURT HELD THAT CONGRESS AND THE EXECUTIVE COULD CERTAINLY ACT TO
KEEP THE CHANNELS OF INTERSTATE COMMERCE OPEN, AND THAT A COURT OF
EQUITY HAD NO LESS POWER TO ENJOIN WHAT AMOUNTED TO A PUBLIC NUISANCE. 
IT MIGHT BE ARGUED THAT TO THE EXTENT DEBS PERMITS THE FEDERAL
GOVERNMENT TO OBTAIN AN INJUNCTION AGAINST THE PRIVATE CONSPIRACY
ALLEGED IN THE PRESENT INDICTMENT, (FN4) THE CRIMINAL STATUTE SHOULD BE
APPLICABLE AS WELL ON THE GROUND THAT THE GOVERNMENTAL INTEREST IN BOTH
CASES IS THE SAME, NAMELY TO VINDICATE THE UNDERLYING POLICY OF THE
COMMERCE CLAUSE.  HOWEVER, SEC. 241 IS NOT DIRECTED TOWARD THE
VINDICATION OF GOVERNMENTAL INTERESTS; IT REQUIRES A PRIVATE RIGHT
UNDER FEDERAL LAW.  NO SUCH RIGHT CAN BE FOUND IN DEBS, WHICH STANDS
SIMPLY FOR THE PROPOSITION THAT THE COMMERCE CLAUSE GIVES THE FEDERAL
GOVERNMENT STANDING TO SUE ON A BASIS SIMILAR TO THAT OF PRIVATE
INDIVIDUALS UNDER NUISANCE LAW.  THE SUBSTANTIVE RIGHTS OF PRIVATE
PERSONS TO ENJOIN SUCH IMPEDIMENTS, OF COURSE, DEVOLVE FROM STATE NOT
FEDERAL LAW; ANY SEEMINGLY INCONSISTENT DISCUSSION IN DEBS WOULD APPEAR
SUBSTANTIALLY VITIATED BY ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 

I CANNOT FIND IN ANY OF THIS PAST CASE LAW ANY SOLID SUPPORT FOR A
CONCLUSION THAT THE COMMERCE CLAUSE EMBRACES A RIGHT TO BE FREE FROM
PRIVATE INTERFERENCE.  AND THE COURT'S OPINION HERE MAKES NO SUCH
SUGGESTION. 

   III. 

ONE OTHER POSSIBLE SOURCE FOR THE RIGHT TO TRAVEL SHOULD BE
MENTIONED.  PROFESSOR CHAFEE, IN HIS THOUGHTFUL STUDY, "FREEDOM OF
MOVEMENT," (FN5) FINDS BOTH THE PRIVILEGES AND IMMUNITIES APPROACH AND
THE COMMERCE CLAUSE APPROACH UNSATISFACTORY.  AFTER A THOROUGH REVIEW
OF THE HISTORY AND CASES DEALING WITH THE QUESTION HE CONCLUDES THAT
THIS "VALUABLE HUMAN RIGHT," ID., AT 209, IS BEST SEEN IN DUE PROCESS
TERMS: 

"ALREADY IN SEVERAL DECISIONS THE COURT HAS USED THE DUE PROCESS
CLAUSE TO SAFEGUARD THE RIGHT OF THE MEMBERS OF ANY RACE TO RESIDE
WHERE THEY PLEASE INSIDE A STATE, REGARDLESS OF ORDINANCES AND
INJUNCTIONS.  WHY IS NOT THIS CLAUSE EQUALLY AVAILABLE TO ASSURE THE
RIGHT TO LIVE IN ANY STATE ONE DESIRES?  AND UNREASONABLE RESTRAINTS BY
THE NATIONAL GOVERNMENT ON MOBILITY CAN BE UPSET BY THE DUE PROCESS
CLAUSE IN THE FIFTH AMENDMENT  ...  .  THUS THE 'LIBERTY' OF ALL HUMAN
BEINGS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE PROCESS OF LAW INCLUDES
LIBERTY OF SPEECH, PRESS, ASSEMBLY, RELIGION, AND ALSO LIBERTY OF
MOVEMENT."  ID., AT 192-193. 

THIS DUE PROCESS APPROACH TO THE RIGHT TO UNIMPEDED MOVEMENT HAS BEEN
ENDORSED BY THIS COURT.  IN KENT V. DULLES, 357 U.S. 116, THE COURT
ASSERTED THAT "THE RIGHT TO TRAVEL IS A PART OF THE 'LIBERTY' OF WHICH
THE CITIZEN CANNOT BE DEPRIVED WITHOUT DUE PROCESS OF LAW UNDER THE
FIFTH AMENDMENT," ID., AT 125, CITING CRANDALL V. NEVADA, SUPRA, AND
EDWARDS V. CALIFORNIA, SUPRA.  IT IS TRUE THAT THE HOLDING IN THAT CASE
TURNED ESSENTIALLY ON STATUTORY GROUNDS.  HOWEVER, IN APTHEKER V.
SECRETARY OF STATE, 378 U.S. 500, THE COURT, APPLYING THIS
CONSTITUTIONAL DOCTRINE, STRUCK DOWN A FEDERAL STATUTE FORBIDDING
MEMBERS OF COMMUNIST ORGANIZATIONS TO OBTAIN PASSPORTS.  BOTH THE
MAJORITY AND DISSENTING OPINIONS AFFIRMED THE PRINCIPLE THAT THE RIGHT
TO TRAVEL IS AN ASPECT OF THE LIBERTY GUARANTEED BY THE DUE PROCESS
CLAUSE. 

VIEWING THE RIGHT TO TRAVEL IN DUE PROCESS TERMS, OF COURSE, WOULD
CLEARLY MAKE IT INAPPLICABLE TO THE PRESENT CASE, FOR DUE PROCESS
SPEAKS ONLY TO GOVERNMENTAL ACTION. 

                                      IV. 

THIS SURVEY OF THE VARIOUS BASES FOR GROUNDING THE "RIGHT TO TRAVEL"
IS CONCLUSIVE ONLY TO THE EXTENT OF SHOWING THAT THERE HAS NEVER BEEN
AN ACKNOWLEDGED CONSTITUTIONAL RIGHT TO BE FREE FROM PRIVATE
INTERFERENCE, AND THAT THE RIGHT IN QUESTION HAS TRADITIONALLY BEEN
SEEN AND APPLIED, WHATEVER THE CONSTITUTIONAL UNDERPINNING ASSERTED,
ONLY AGAINST GOVERNMENTAL IMPEDIMENTS.  THE RIGHT INVOLVED BEING AS
NEBULOUS AS IT IS, HOWEVER, IT IS NECESSARY TO CONSIDER IT IN TERMS OF
POLICY AS WELL AS PRECEDENT. 

AS A GENERAL PROPOSITION IT SEEMS TO ME VERY DUBIOUS THAT THE
CONSTITUTION WAS INTENDED TO CREATE CERTAIN RIGHTS OF PRIVATE
INDIVIDUALS AS AGAINST OTHER PRIVATE INDIVIDUALS.  THE CONSTITUTIONAL
CONVENTION WAS CALLED TO ESTABLISH A NATION, NOT TO REFORM THE COMMON
LAW.  EVEN THE BILL OF RIGHTS, DESIGNED TO PROTECT PERSONAL LIBERTIES,
WAS DIRECTED AT RIGHTS AGAINST GOVERNMENTAL AUTHORITY, NOT OTHER
INDIVIDUALS.  IT IS TRUE THAT THERE IS A VERY NARROW RANGE OF RIGHTS
AGAINST INDIVIDUALS WHICH HAVE BEEN READ INTO THE CONSTITUTION.  IN EX
PARTE YARBROUGH, 110 U.S. 651, THE COURT HELD THAT IMPLICIT IN THE
CONSTITUTION IS THE RIGHT OF CITIZENS TO BE FREE OF PRIVATE
INTERFERENCE IN FEDERAL ELECTIONS.  UNITED STATES V. CLASSIC, 313 U.S.
299, EXTENDED THIS COVERAGE TO PRIMARIES.  LOGAN V. UNITED STATES, 144
U.S. 263, APPLIED THE PREDECESSOR OF SEC. 241 TO A CONSPIRACY TO INJURE
SOMEONE IN THE CUSTODY OF A UNITED STATES MARSHAL; THE CASE HAS BEEN
READ AS DEALING WITH A PRIVILEGE AND IMMUNITY OF CITIZENSHIP, BUT IT
WOULD SEEM TO HAVE DEPENDED AS WELL ON EXTRAPOLATIONS FROM STATUTORY
PROVISIONS PROVIDING FOR SUPERVISION OF PRISONERS.  THE COURT IN IN RE
QUARLES, 158 U.S. 532, EXTENDING LOGAN, SUPRA, DECLARED THAT THERE WAS
A RIGHT OF FEDERAL CITIZENSHIP TO INFORM FEDERAL OFFICIALS OF
VIOLATIONS OF FEDERAL LAW.  SEE ALSO UNITED STATES V. CRUIKSHANK, 92
U.S. 542, 552, WHICH ANNOUNCED IN DICTA A FEDERAL RIGHT TO ASSEMBLE TO
PETITION THE CONGRESS FOR A REDRESS OF GRIEVANCES. 

WHATEVER THE VALIDITY OF THESE CASES ON THEIR OWN TERMS, THEY ARE
HARDLY PERSUASIVE AUTHORITIES FOR ADDING TO THE COLLECTION OF
PRIVILEGES AND IMMUNITIES THE RIGHT TO BE FREE OF PRIVATE IMPEDIMENTS
TO TRAVEL.  THE CASES JUST DISCUSSED ARE NARROW, AND ARE ESSENTIALLY
CONCERNED WITH THE VINDICATION OF IMPORTANT RELATIONSHIPS WITH THE
FEDERAL GOVERNMENT - VOTING IN FEDERAL ELECTIONS, INVOLVEMENT IN
FEDERAL LAW ENFORCEMENT, COMMUNICATING WITH THE FEDERAL GOVERNMENT. 
THE PRESENT CASE STANDS ON A CONSIDERABLY DIFFERENT FOOTING. 

IT IS ARGUABLE THAT THE SAME CONSIDERATIONS WHICH LED THE COURT ON
NUMEROUS OCCASIONS TO FIND A RIGHT OF FREE MOVEMENT AGAINST OPPRESSIVE
STATE ACTION NOW JUSTIFY A SIMILAR RESULT WITH RESPECT TO PRIVATE
IMPEDIMENTS.  CRANDALL V. NEVADA, SUPRA, SPOKE OF THE NEED TO TRAVEL TO
THE CAPITAL, TO SERVE AND CONSULT WITH THE OFFICES OF GOVERNMENT.  A
BASIC REASON FOR THE FORMATION OF THIS NATION WAS TO FACILITATE
COMMERCIAL INTERCOURSE; INTELLECTUAL, CULTURAL, SCIENTIFIC, SOCIAL, AND
POLITICAL INTERESTS ARE LIKEWISE SERVED BY FREE MOVEMENT.  SURELY THESE
INTERESTS CAN BE IMPEDED BY PRIVATE VIGILANTES AS WELL AS BY STATE
ACTION.  ALTHOUGH THIS ARGUMENT IS NOT WITHOUT FORCE, I DO NOT THINK IT
IS PARTICULARLY PERSUASIVE.  THERE IS A DIFFERENCE IN POWER BETWEEN
STATES AND PRIVATE GROUPS SO GREAT THAT ANALOGIES BETWEEN THE TWO TEND
TO BE MISLEADING.  IF THE STATE OBSTRUCTS FREE INTERCOURSE OF GOODS,
PEOPLE, OR IDEAS, THE BONDS OF THE UNION ARE THREATENED; IF A PRIVATE
GROUP EFFECTIVELY STOPS SUCH COMMUNICATION, THERE IS AT MOST A
TEMPORARY BREAKDOWN OF LAW AND ORDER, TO BE REMEDIED BY THE EXERCISE OF
STATE AUTHORITY OR BY APPROPRIATE FEDERAL LEGISLATION. 

TO DECLINE TO FIND A CONSTITUTIONAL RIGHT OF THE NATURE ASSERTED HERE
DOES NOT RENDER THE FEDERAL GOVERNMENT HELPLESS.  AS TO INTERSTATE
COMMERCE BY RAILROADS, FEDERAL LAW ALREADY PROVIDES REMEDIES FOR "UNDUE
OR UNREASONABLE PREJUDICE,"  24 STAT. 380, AS AMENDED, 49 U.S.C. SEC.
3(1) (1964 ED.), WHICH HAS BEEN HELD TO APPLY TO RACIAL
DISCRIMINATION.  HENDERSON V. UNITED STATES, 339 U.S. 816.  A SIMILAR
STATUTE APPLIES TO MOTOR CARRIERS, 49 STAT. 558, AS AMENDED, 49 U.S.C.
SEC. 316(D) (1964 ED.), AND TO AIR CARRIERS, 72 STAT.  760, 49 U.S.C.
SEC. 1374(B) (1964 ED.).  SEE BOYNTON V. VIRGINIA, 364 U.S. 454;
FITZGERALD V. PAN AMERICAN WORLD AIRWAYS, 229 F.2D 499.  THE CIVIL
RIGHTS ACT OF 1964, 78 STAT. 243, DEALS WITH OTHER TYPES OF
OBSTRUCTIONS TO INTERSTATE COMMERCE.  INDEED, UNDER THE COURT'S PRESENT
HOLDING, IT IS ARGUABLE THAT ANY CONSPIRACY TO DISCRIMINATE IN PUBLIC
ACCOMMODATIONS HAVING THE EFFECT OF IMPEDING INTERSTATE COMMERCE COULD
BE REACHED UNDER SEC. 241, UNAIDED BY TITLE II OF THE CIVIL RIGHTS ACT
OF 1964.  BECAUSE CONGRESS HAS WIDE AUTHORITY TO LEGISLATE IN THIS
AREA, IT SEEMS UNNECESSARY - IF PRUDENTIAL GROUNDS ARE OF ANY
RELEVANCE, SEE BAKER V. CARR, 369 U.S. 186, 258-259 (CLARK, J.,
CONCURRING) - TO STRAIN TO FIND A DUBIOUS CONSTITUTIONAL RIGHT. 

                            V. 

IF I HAVE SUCCEEDED IN SHOWING ANYTHING IN THIS CONSTITUTIONAL
EXERCISE, IT IS THAT UNTIL TODAY THERE WAS NO FEDERAL RIGHT TO BE FREE
FROM PRIVATE INTERFERENCE WITH INTERSTATE TRANSIT, AND VERY LITTLE
REASON FOR CREATING ONE.  ALTHOUGH THE COURT HAS OSTENSIBLY ONLY
"DISCOVERED" THIS PRIVATE RIGHT IN THE CONSTITUTION AND THEN APPLIED
SEC. 241 MECHANICALLY TO PUNISH THOSE WHO CONSPIRE TO THREATEN IT, IT
SHOULD BE RECOGNIZED THAT WHAT THE COURT HAS IN EFFECT DONE IS TO USE
THIS ALL-ENCOMPASSING CRIMINAL STATUTE TO FASHION FEDERAL COMMON-LAW
CRIMES, FORBIDDEN TO THE FEDERAL JUDICIARY SINCE THE 1812 DECISION IN
UNITED STATES V. HUDSON, 7 CRANCH 32.  MY BROTHER DOUGLAS, DISSENTING
IN UNITED STATES V. CLASSIC, SUPRA, NOTED WELL THE DANGERS OF THE
INDISCRIMINATE APPLICATION OF THE PREDECESSOR OF SEC. 241: "IT IS NOT
ENOUGH FOR US TO FIND IN THE VAGUE PENUMBRA OF A STATUTE SOME OFFENSE
ABOUT WHICH CONGRESS COULD HAVE LEGISLATED, AND THEN TO PARTICULARIZE
IT AS A CRIME BECAUSE IT IS HIGHLY OFFENSIVE."  313 U.S., AT 331-332. 

I DO NOT GAINSAY THAT THE IMMUNITIES AND COMMERCE PROVISIONS OF THE
CONSTITUTION LEAVE THE WAY OPEN FOR THE FINDING OF THIS "PRIVATE"
CONSTITUTIONAL RIGHT, SINCE THEY DO NOT SPEAK SOLELY IN TERMS OF
GOVERNMENTAL ACTION.  NEVERTHELESS, I THINK IT WRONG TO SUSTAIN A
CRIMINAL INDICTMENT ON SUCH AN UNCERTAIN GROUND.  TO DO SO SUBJECTS
SEC. 241 TO SERIOUS CHALLENGE ON THE SCORE OF VAGUENESS AND SERVES IN
EFFECT TO PLACE THIS COURT IN THE POSITION OF MAKING CRIMINAL LAW UNDER
THE NAME OF CONSTITUTIONAL INTERPRETATION.  IT IS DIFFICULT TO SUBDUE
MISGIVINGS ABOUT THE POTENTIALITIES OF THIS DECISION. 

I WOULD SUSTAIN THIS ASPECT OF THE INDICTMENT ONLY ON THE PREMISE
THAT IT SUFFICIENTLY ALLEGES STATE INTERFERENCE WITH INTERSTATE TRAVEL,
AND ON NO OTHER GROUND. 

FN1  THE ACTION OF THREE OF THE JUSTICES WHO JOIN THE COURT'S OPINION
IN NONETHELESS CURSORILY PRONOUNCING THEMSELVES ON THE FAR-REACHING
CONSTITUTIONAL QUESTIONS DELIBERATELY NOT REACHED IN PART II SEEMS TO
ME, TO SAY THE VERY LEAST, EXTRAORDINARY. 

FN2  FOR A DISCUSSION OF THE DEPORTATIONS, SEE THE PRESIDENT'S
MEDIATION COMM'N, REPORT ON THE BISBEE DEPORTATIONS (NOVEMBER 6,
1917). 

FN3  THE COURT'S RELIANCE ON UNITED STATES V. MOORE, 129 F. 630, IS
MISPLACED.  THAT CASE HELD ONLY THAT IT WAS NOT A PRIVILEGE OR IMMUNITY
TO ORGANIZE LABOR UNIONS.  THE REFERENCE TO "THE RIGHT TO PASS FROM ONE
STATE TO ANY OTHER" WAS PURELY INCIDENTAL DICTUM. 

FN4  IT IS NOT EVEN CLEAR THAT AN EQUITY COURT WOULD ENJOIN A
CONSPIRACY OF THE KIND ALLEGED HERE, FOR TRADITIONALLY EQUITY WILL NOT
ENJOIN A CRIME.  SEE DEVELOPMENTS IN THE LAW - INJUNCTIONS, 78 HARV. L.
REV. 994, 1013-1018 (1965). 

FN5  IN THREE HUMAN RIGHTS IN THE CONSTITUTION OF 1787, AT 162
(1956). 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I JOIN PART I OF THE COURT'S OPINION.  I REACH THE SAME RESULT AS THE
COURT ON THAT BRANCH OF THE INDICTMENT DISCUSSED IN PART III OF ITS
OPINION BUT FOR OTHER REASONS.  SEE FOOTNOTE 3, INFRA.  AND I AGREE
WITH SO MUCH OF PART II AS CONSTRUES 18 U.S.C. SEC. 241 (1964 ED.)  TO
ENCOMPASS CONSPIRACIES TO INJURE, OPPRESS, THREATEN OR INTIMIDATE
CITIZENS IN THE FREE EXERCISE OR ENJOYMENT OF FOURTEENTH AMENDMENT
RIGHTS AND HOLDS THAT, AS SO CONSTRUED, SEC.  241 IS NOT VOID FOR
INDEFINITENESS.  I DO NOT AGREE, HOWEVER, WITH THE REMAINDER OF PART II
WHICH HOLDS, AS I READ THE OPINION, THAT A CONSPIRACY TO INTERFERE WITH
THE EXERCISE OF THE RIGHT TO EQUAL UTILIZATION OF STATE FACILITIES IS
NOT, WITHIN THE MEANING OF SEC. 241, A CONSPIRACY TO INTERFERE WITH THE
EXERCISE OF A "RIGHT  ... SECURED  ...  BY THE CONSTITUTION" UNLESS
DISCRIMINATORY CONDUCT BY STATE OFFICERS IS INVOLVED IN THE ALLEGED
CONSPIRACY.                                                 I. 

THE SECOND NUMBERED PARAGRAPH OF THE INDICTMENT CHARGES THAT THE
DEFENDANTS CONSPIRED TO INJURE, OPPRESS, THREATEN, AND INTIMIDATE NEGRO
CITIZENS IN THE FREE EXERCISE AND ENJOYMENT OF "THE RIGHT TO THE EQUAL
UTILIZATION, WITHOUT DISCRIMINATION UPON THE BASIS OF RACE, OF PUBLIC
FACILITIES  ... OWNED, OPERATED OR MANAGED BY OR ON BEHALF OF THE STATE
OF GEORGIA OR ANY SUBDIVISION THEREOF."  APPELLEES CONTEND THAT AS A
MATTER OF STATUTORY CONSTRUCTION SEC. 241 DOES NOT REACH SUCH A
CONSPIRACY.  THEY ARGUE THAT A PRIVATE CONSPIRACY TO INTERFERE WITH THE
EXERCISE OF THE RIGHT TO EQUAL UTILIZATION OF THE STATE FACILITIES
DESCRIBED IN THAT PARAGRAPH IS NOT, WITHIN THE MEANING OF SEC. 241, A
CONSPIRACY TO INTERFERE WITH THE EXERCISE OF A RIGHT "SECURED" BY THE
FOURTEENTH AMENDMENT BECAUSE "THERE EXIST NO EQUAL PROTECTION CLAUSE
RIGHTS AGAINST WHOLLY PRIVATE ACTION." 

THE COURT DEALS WITH THIS CONTENTION BY SEIZING UPON AN ALLEGATION IN
THE INDICTMENT CONCERNING ONE OF THE MEANS EMPLOYED BY THE DEFENDANTS
TO ACHIEVE THE OBJECT OF THE CONSPIRACY.  THE INDICTMENT ALLEGES THAT
THE OBJECT OF THE CONSPIRACY WAS TO BE ACHIEVED, IN PART, "BY CAUSING
THE ARREST OF NEGROES BY MEANS OF FALSE REPORTS THAT SUCH NEGROES HAD
COMMITTED CRIMINAL ACTS  ...  ."  THE COURT READS THIS ALLEGATION AS
"BROAD ENOUGH TO COVER A CHARGE OF ACTIVE CONNIVANCE BY AGENTS OF THE
STATE IN THE MAKING OF THE 'FALSE REPORTS,' OR OTHER CONDUCT AMOUNTING
TO OFFICIAL DISCRIMINATION CLEARLY SUFFICIENT TO CONSTITUTE DENIAL OF
RIGHTS PROTECTED BY THE EQUAL PROTECTION CLAUSE," AND THE COURT HOLDS
THAT THIS ALLEGATION, SO CONSTRUED, IS SUFFICIENT TO "PREVENT DISMISSAL
OF THIS BRANCH OF THE INDICTMENT."  (FN1)  I UNDERSTAND THIS TO MEAN
THAT, NO MATTER HOW COMPELLING THE PROOF THAT PRIVATE CONSPIRATORS
MURDERED, ASSAULTED, OR INTIMIDATED NEGROES IN ORDER TO PREVENT THEIR
USE OF STATE FACILITIES, THE PROSECUTION UNDER THE SECOND NUMBERED
PARAGRAPH MUST FAIL IN THE ABSENCE OF PROOF OF ACTIVE CONNIVANCE OF LAW
ENFORCEMENT OFFICERS WITH THE PRIVATE CONSPIRATORS IN CAUSING THE FALSE
ARRESTS. 

HENCE, WHILE THE ORDER DISMISSING THE SECOND NUMBERED PARAGRAPH OF
THE INDICTMENT IS REVERSED, SEVERE LIMITATIONS ON THE PROSECUTION OF
THAT BRANCH OF THE INDICTMENT ARE IMPLICITLY IMPOSED.  THESE
LIMITATIONS COULD ONLY STEM FROM AN ACCEPTANCE OF APPELLEES' CONTENTION
THAT, BECAUSE THERE EXIST NO EQUAL PROTECTION CLAUSE RIGHTS AGAINST
WHOLLY PRIVATE ACTION, A CONSPIRACY OF PRIVATE PERSONS TO INTERFERE
WITH THE RIGHT TO EQUAL UTILIZATION OF STATE FACILITIES DESCRIBED IN
THE SECOND NUMBERED PARAGRAPH IS NOT A CONSPIRACY TO INTERFERE WITH A
"RIGHT  ...  SECURED  ...  BY THE CONSTITUTION" WITHIN THE MEANING OF
SEC. 241.  IN OTHER WORDS, IN THE COURT'S VIEW THE ONLY RIGHT REFERRED
TO IN THE SECOND NUMBERED PARAGRAPH THAT IS, FOR PURPOSES OF SEC. 241,
"SECURED  ...  BY THE CONSTITUTION" IS A RIGHT TO BE FREE - WHEN
SEEKING ACCESS TO STATE FACILITIES - FROM DISCRIMINATORY CONDUCT BY
STATE OFFICERS OR BY PERSONS ACTING IN CONCERT WITH STATE OFFICERS. 
(FN2)

I CANNOT AGREE WITH THAT CONSTRUCTION OF SEC. 241.  I AM OF THE
OPINION THAT A CONSPIRACY TO INTERFERE WITH THE RIGHT TO EQUAL
UTILIZATION OF STATE FACILITIES DESCRIBED IN THE SECOND NUMBERED
PARAGRAPH OF THE INDICTMENT IS A CONSPIRACY TO INTERFERE WITH A "RIGHT
...  SECURED  ...  BY THE CONSTITUTION" WITHIN THE MEANING OF SEC. 241
WITHOUT REGARD TO WHETHER STATE OFFICERS PARTICIPATED IN THE ALLEGED
CONSPIRACY.  I BELIEVE THAT SEC. 241 REACHES SUCH A PRIVATE CONSPIRACY,
NOT BECAUSE THE FOURTEENTH AMENDMENT OF ITS OWN FORCE PROHIBITS SUCH A
CONSPIRACY, BUT BECAUSE SEC. 241, AS AN EXERCISE OF CONGRESSIONAL POWER
UNDER SEC. 5 OF THAT AMENDMENT, PROHIBITS ALL CONSPIRACIES TO INTERFERE
WITH THE EXERCISE OF A "RIGHT  ...  SECURED  ...  BY THE CONSTITUTION"
AND BECAUSE THE RIGHT TO EQUAL UTILIZATION OF STATE FACILITIES IS A
"RIGHT  ...  SECURED  ...  BY THE CONSTITUTION" WITHIN THE MEANING OF
THAT PHRASE AS USED IN SEC. 241.  (FN3) 

MY DIFFERENCE WITH THE COURT STEMS FROM ITS CONSTRUCTION OF THE TERM
"SECURED" AS USED IN SEC. 241 IN THE PHRASE A "RIGHT  ...  SECURED  ...
BY THE CONSTITUTION OR LAWS OF THE UNITED STATES."  THE COURT TACITLY
CONSTRUES THE TERM "SECURED" SO AS TO RESTRICT THE COVERAGE OF SEC. 241
TO THOSE RIGHTS THAT ARE "FULLY PROTECTED" BY THE CONSTITUTION OR
ANOTHER FEDERAL LAW.  UNLESS PRIVATE INTERFERENCES WITH THE EXERCISE OF
THE RIGHT IN QUESTION ARE PROHIBITED BY THE CONSTITUTION ITSELF OR
ANOTHER FEDERAL LAW, THE RIGHT CANNOT, IN THE COURT'S VIEW, BE DEEMED
"SECURED  ... BY THE CONSTITUTION OR LAWS OF THE UNITED STATES" SO AS
TO MAKE SEC. 241 APPLICABLE TO A PRIVATE CONSPIRACY TO INTERFERE WITH
THE EXERCISE OF THAT RIGHT.  THE COURT THEN PREMISES THAT NEITHER THE
FOURTEENTH AMENDMENT NOR ANY OTHER FEDERAL LAW (FN4) PROHIBITS PRIVATE
INTERFERENCES WITH THE EXERCISE OF THE RIGHT TO EQUAL UTILIZATION OF
STATE FACILITIES. 

IN MY VIEW, HOWEVER, A RIGHT CAN BE DEEMED "SECURED  ...  BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES," WITHIN THE MEANING OF SEC.
241, EVEN THOUGH ONLY GOVERNMENTAL INTERFERENCES WITH THE EXERCISE OF
THE RIGHT ARE PROHIBITED BY THE CONSTITUTION ITSELF (OR ANOTHER FEDERAL
LAW).  THE TERM "SECURED" MEANS "CREATED BY, ARISING UNDER OR DEPENDENT
UPON,"  LOGAN V. UNITED STATES, 144 U.S. 263, 293, RATHER THAN "FULLY
PROTECTED."  A RIGHT IS "SECURED  ...  BY THE CONSTITUTION" WITHIN THE
MEANING OF SEC. 241 IF IT EMANATES FROM THE CONSTITUTION, IF IT FINDS
ITS SOURCE IN THE CONSTITUTION.  SECTION 241 MUST THUS BE VIEWED, IN
THIS CONTEXT, AS AN EXERCISE OF CONGRESSIONAL POWER TO AMPLIFY
PROHIBITIONS OF THE CONSTITUTION ADDRESSED, AS IS INVARIABLY THE CASE,
TO GOVERNMENT OFFICERS; CONTRARY TO THE VIEW OF THE COURT, I THINK WE
ARE DEALING HERE WITH A STATUTE THAT SEEKS TO IMPLEMENT THE
CONSTITUTION, NOT WITH THE "BARE TERMS" OF THE CONSTITUTION.  SECTION
241 IS NOT CONFINED TO PROTECTING RIGHTS AGAINST PRIVATE CONSPIRACIES
THAT THE CONSTITUTION OR ANOTHER FEDERAL LAW ALSO PROTECTS AGAINST
PRIVATE INTERFERENCES.  NO SUCH DUPLICATIVE FUNCTION WAS ENVISIONED IN
ITS ENACTMENT.  SEE APPENDIX IN UNITED STATES V. PRICE, POST, P. 807. 
NOR HAS THIS COURT CONSTRUED SEC.  241 IN SUCH A RESTRICTIVE MANNER IN
OTHER CONTEXTS.  MANY OF THE RIGHTS THAT HAVE BEEN HELD TO BE
ENCOMPASSED WITHIN SEC. 241 ARE NOT ADDITIONALLY THE SUBJECT OF
PROTECTION OF SPECIFIC FEDERAL LEGISLATION OR OF ANY PROVISION OF THE
CONSTITUTION ADDRESSED TO PRIVATE INDIVIDUALS.  FOR EXAMPLE, THE
PROHIBITIONS AND REMEDIES OF SEC. 241 HAVE BEEN DECLARED TO APPLY,
WITHOUT REGARD TO WHETHER THE ALLEGED VIOLATOR WAS A GOVERNMENT
OFFICER, TO INTERFERENCES WITH THE RIGHT TO VOTE IN A FEDERAL ELECTION,
EX PARTE YARBROUGH, 110 U.S. 651, OR PRIMARY, UNITED STATES V. CLASSIC,
313 U.S. 299; THE RIGHT TO DISCUSS PUBLIC AFFAIRS OR PETITION FOR
REDRESS OF GRIEVANCES, UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 552,
CF. HAGUE V. CIO, 307 U.S. 496, 512-513 (OPINION OF ROBERTS, J.);
COLLINS V. HARDYMAN, 341 U.S. 651, 663 (DISSENTING OPINION); THE RIGHT
TO BE PROTECTED AGAINST VIOLENCE WHILE IN THE LAWFUL CUSTODY OF A
FEDERAL OFFICER, LOGAN V. UNITED STATES, 144 U.S. 263; AND THE RIGHT TO
INFORM OF VIOLATIONS OF FEDERAL LAW, IN RE QUARLES AND BUTLER, 158 U.S.
532.  THE FULL IMPORT OF OUR DECISION IN UNITED STATES V. PRICE, POST,
P. 787, AT PP. 796-807, REGARDING SEC. 241 IS TO TREAT THE RIGHTS
PURPORTEDLY ARISING FROM THE FOURTEENTH AMENDMENT IN PARITY WITH THOSE
RIGHTS JUST ENUMERATED, ARISING FROM OTHER CONSTITUTIONAL PROVISIONS. 
THE REACH OF SEC. 241 SHOULD NOT VARY WITH THE PARTICULAR
CONSTITUTIONAL PROVISION THAT IS THE SOURCE OF THE RIGHT.  FOR PURPOSES
OF APPLYING SEC. 241 TO A PRIVATE CONSPIRACY, THE STANDARD USED TO
DETERMINE WHETHER, FOR EXAMPLE, THE RIGHT TO DISCUSS PUBLIC AFFAIRS OR
THE RIGHT TO VOTE IN A FEDERAL ELECTION IS A "RIGHT ...  SECURED  ...
BY THE CONSTITUTION" IS THE VERY SAME STANDARD TO BE USED TO DETERMINE
WHETHER THE RIGHT TO EQUAL UTILIZATION OF STATE FACILITIES IS A "RIGHT
...  SECURED  ...  BY THE CONSTITUTION." 

FOR ME, THE RIGHT TO USE STATE FACILITIES WITHOUT DISCRIMINATION ON
THE BASIS OF RACE IS, WITHIN THE MEANING OF SEC. 241, A RIGHT CREATED
BY, ARISING UNDER AND DEPENDENT UPON THE FOURTEENTH AMENDMENT AND HENCE
IS A RIGHT "SECURED" BY THAT AMENDMENT.  IT FINDS ITS SOURCE IN THAT
AMENDMENT.  AS RECOGNIZED IN STRAUDER V. WEST VIRGINIA, 100 U.S. 303,
310, "THE FOURTEENTH AMENDMENT MAKES NO ATTEMPT TO ENUMERATE THE RIGHTS
IT DESIGNED TO PROTECT.  IT SPEAKS IN GENERAL TERMS, AND THOSE ARE AS
COMPREHENSIVE AS POSSIBLE.  ITS LANGUAGE IS PROHIBITORY; BUT EVERY
PROHIBITION IMPLIES THE EXISTENCE OF RIGHTS  ...  ."  THE FOURTEENTH
AMENDMENT COMMANDS THE STATE TO PROVIDE THE MEMBERS OF ALL RACES WITH
EQUAL ACCESS TO THE PUBLIC FACILITIES IT OWN OR MANAGES, AND THE RIGHT
OF A CITIZEN TO USE THOSE FACILITIES WITHOUT DISCRIMINATION ON THE
BASIS OF RACE IS A BASIC COROLLARY OF THIS COMMAND.  CF.  BREWER V.
HOXIE SCHOOL DISTRICT NO. 46, 238 F.2D 91 (C.A. 8TH CIR. 1956). 
WHATEVER MAY BE THE STATUS OF THE RIGHT TO EQUAL UTILIZATION OF
PRIVATELY OWNED FACILITIES, SEE GENERALLY BELL V. MARYLAND, 378 U.S.
226, IT MUST BE EMPHASIZED THAT WE ARE HERE CONCERNED WITH THE RIGHT TO
EQUAL UTILIZATION OF PUBLIC FACILITIES OWNED OR OPERATED BY OR ON
BEHALF OF THE STATE.  TO DENY THE EXISTENCE OF THIS RIGHT OR ITS
CONSTITUTIONAL STATURE IS TO DENY THE HISTORY OF THE LAST DECADE, OR TO
IGNORE THE ROLE OF FEDERAL POWER, PREDICATED ON THE FOURTEENTH
AMENDMENT, IN OBTAINING NONDISCRIMINATORY ACCESS TO SUCH FACILITIES. 
IT IS TO DO VIOLENCE TO THE COMMON UNDERSTANDING, AN UNDERSTANDING THAT
FOUND EXPRESSION IN TITLES III AND IV OF THE CIVIL RIGHTS ACT OF 1964,
78 STAT. 246, 42 U.S.C. SECS. 2000B, 2000C (1964 ED.), DEALING WITH
STATE FACILITIES.  THOSE PROVISIONS REFLECT THE VIEW THAT THE
FOURTEENTH AMENDMENT CREATES THE RIGHT TO EQUAL UTILIZATION OF STATE
FACILITIES.  CONGRESS DID NOT PREFACE THOSE TITLES WITH A PROVISION
COMPARABLE TO THAT IN TITLE II (FN5) EXPLICITLY CREATING THE RIGHT TO
EQUAL UTILIZATION OF CERTAIN PRIVATELY OWNED FACILITIES.  CONGRESS
RIGHTLY ASSUMED THAT A SPECIFIC LEGISLATIVE DECLARATION OF THE RIGHT
WAS UNNECESSARY, THAT THE RIGHT AROSE FROM THE FOURTEENTH AMENDMENT
ITSELF. 

IN REVERSING THE DISTRICT COURT'S DISMISSAL OF THE SECOND NUMBERED
PARAGRAPH, I WOULD THEREFORE HOLD THAT PROOF AT THE TRIAL OF THE
CONSPIRACY CHARGED TO THE DEFENDANTS IN THAT PARAGRAPH WILL ESTABLISH A
VIOLATION OF SEC. 241 WITHOUT REGARD TO WHETHER THERE IS ALSO PROOF
THAT STATE LAW ENFORCEMENT OFFICERS ACTIVELY CONNIVED IN CAUSING THE
ARRESTS OF NEGROES BY MEANS OF FALSE REPORTS. 

                                         II. 

MY VIEW AS TO THE SCOPE OF SEC. 241 REQUIRES THAT I REACH THE
QUESTION OF CONSTITUTIONAL POWER - WHETHER SEC. 241 OR LEGISLATION
INDUBITABLY DESIGNED TO PUNISH ENTIRELY PRIVATE CONSPIRACIES TO
INTERFERE WITH THE EXERCISE OF FOURTEENTH AMENDMENT RIGHTS CONSTITUTES
A PERMISSIBLE EXERCISE OF THE POWER GRANTED TO CONGRESS BY SEC. 5 OF
THE FOURTEENTH AMENDMENT "TO ENFORCE, BY APPROPRIATE LEGISLATION, THE
PROVISIONS OF" THE AMENDMENT. 

A MAJORITY OF THE MEMBERS OF THE COURT (FN6) EXPRESSES THE VIEW TODAY
THAT SEC. 5 EMPOWERS CONGRESS TO ENACT LAWS PUNISHING ALL CONSPIRACIES
TO INTERFERE WITH THE EXERCISE OF FOURTEENTH AMENDMENT RIGHTS, WHETHER
OR NOT STATE OFFICERS OR OTHERS ACTING UNDER THE COLOR OF STATE LAW ARE
IMPLICATED IN THE CONSPIRACY.  ALTHOUGH THE FOURTEENTH AMENDMENT
ITSELF, ACCORDING TO ESTABLISHED DOCTRINE, "SPEAKS TO THE STATE OR TO
THOSE ACTING UNDER THE COLOR OF ITS AUTHORITY," LEGISLATION PROTECTING
RIGHTS CREATED BY THAT AMENDMENT, SUCH AS THE RIGHT TO EQUAL
UTILIZATION OF STATE FACILITIES, NEED NOT BE CONFINED TO PUNISHING
CONSPIRACIES IN WHICH STATE OFFICERS PARTICIPATE.  RATHER, SEC. 5
AUTHORIZED CONGRESS TO MAKE LAWS THAT IT CONCLUDES ARE REASONABLY
NECESSARY TO PROTECT A RIGHT CREATED BY AND ARISING UNDER THAT
AMENDMENT; AND CONGRESS IS THUS FULLY EMPOWERED TO DETERMINE THAT
PUNISHMENT OF PRIVATE CONSPIRACIES INTERFERING WITH THE EXERCISE OF
SUCH A RIGHT IS NECESSARY TO ITS FULL PROTECTION.  IT MADE THAT
DETERMINATION IN ENACTING SEC. 241, SEE THE APPENDIX IN UNITED STATES
V. PRICE, POST, P. 807, AND, THEREFORE SEC. 241 IS CONSTITUTIONAL
LEGISLATION AS APPLIED TO REACH THE PRIVATE CONSPIRACY ALLEGED IN THE
SECOND NUMBERED PARAGRAPH OF THE INDICTMENT. 

I ACKNOWLEDGE THAT SOME OF THE DECISIONS OF THIS COURT, MOST NOTABLY
AN ASPECT OF THE CIVIL RIGHTS CASES, 109 U.S. 3, 11, HAVE DECLARED THAT
CONGRESS' POWER UNDER SEC. 5 IS CONFINED TO THE ADOPTION OF
"APPROPRIATE LEGISLATION FOR CORRECTING THE EFFECTS OF  ...  PROHIBITED
STATE LAWS AND STATE ACTS, AND THUS TO RENDER THEM EFFECTUALLY NULL,
VOID, AND INNOCUOUS."  I DO NOT ACCEPT - AND A MAJORITY OF THE COURT
TODAY REJECTS - THIS INTERPRETATION OF SEC. 5.  IT REDUCES THE
LEGISLATIVE POWER TO ENFORCE THE PROVISIONS OF THE AMENDMENT TO THAT OF
THE JUDICIARY; (FN7) AND IT ATTRIBUTES A FAR TOO LIMITED OBJECTIVE TO
THE AMENDMENT'S SPONSORS.  (FN8)  MOREOVER, THE LANGUAGE OF SEC. 5 OF
THE FOURTEENTH AMENDMENT AND SEC. 2 OF THE FIFTEENTH AMENDMENT ARE
VIRTUALLY THE SAME, AND WE RECENTLY HELD IN SOUTH CAROLINA V.
KATZENBACH, ANTE, P. 301, AT 326, THAT "THE BASIC TEST TO BE APPLIED IN
A CASE INVOLVING SEC. 2 OF THE FIFTEENTH AMENDMENT IS THE SAME AS IN
ALL CASES CONCERNING THE EXPRESS POWERS OF CONGRESS WITH RELATION TO
THE RESERVED POWERS OF THE STATES."  THE CLASSIC FORMULATION OF THAT
TEST BY CHIEF JUSTICE MARSHALL IN MCCULLOCH V. MARYLAND, 4 WHEAT.  316,
421, WAS THERE ADOPTED:    "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."    IT SEEMS TO ME THAT THIS IS ALSO THE STANDARD THAT
DEFINES THE SCOPE OF CONGRESSIONAL AUTHORITY UNDER SEC. 5 OF THE
FOURTEENTH AMENDMENT.  INDEED, SOUTH CAROLINA V. KATZENBACH APPROVINGLY
REFERS TO EX PARTE VIRGINIA, 100 U.S. 339, 345-346, A CASE INVOLVING
THE EXERCISE OF THE CONGRESSIONAL POWER UNDER SEC. 5 OF THE FOURTEENTH
AMENDMENT, AS ADOPTING THE MCCULLOCH V. MARYLAND FORMULATION FOR "EACH
OF THE CIVIL WAR AMENDMENTS." 

VIEWED IN ITS PROPER PERSPECTIVE, SEC. 5 OF THE FOURTEENTH AMENDMENT
APPEARS AS A POSITIVE GRANT OF LEGISLATIVE POWER, AUTHORIZING CONGRESS
TO EXERCISE ITS DISCRETION IN FASHIONING REMEDIES TO ACHIEVE CIVIL AND
POLITICAL EQUALITY FOR ALL CITIZENS.  NO ONE WOULD DENY THAT CONGRESS
COULD ENACT LEGISLATION DIRECTING STATE OFFICIALS TO PROVIDE NEGROES
WITH EQUAL ACCESS TO STATE SCHOOLS, PARKS AND OTHER FACILITIES OWNED OR
OPERATED BY THE STATE.  NOR COULD IT BE DENIED THAT CONGRESS HAS THE
POWER TO PUNISH STATE OFFICERS WHO, IN EXCESS OF THEIR AUTHORITY AND IN
VIOLATION OF STATE LAW, CONSPIRE TO THREATEN, HARASS AND MURDER NEGROES
FOR ATTEMPTING TO USE THESE FACILITIES.  (FN9)  AND I CAN FIND NO
PRINCIPLE OF FEDERALISM NOR WORD OF THE CONSTITUTION THAT DENIES
CONGRESS POWER TO DETERMINE THAT IN ORDER ADEQUATELY TO PROTECT THE
RIGHT TO EQUAL UTILIZATION OF STATE FACILITIES, IT IS ALSO APPROPRIATE
TO PUNISH OTHER INDIVIDUALS - NOT STATE OFFICERS THEMSELVES AND NOT
ACTING IN CONCERT WITH STATE OFFICERS - WHO ENGAGE IN THE SAME BRUTAL
CONDUCT FOR THE SAME MISGUIDED PURPOSE.  (FN10)

     III. 

CONSPIRACIES TO INTERFERE WITH THE EXERCISE OF THE RIGHT OF EQUAL
UTILIZATION OF STATE FACILITIES.  IT DEALS IN ONLY GENERAL LANGUAGE
"WITH FEDERAL RIGHTS AND WITH ALL FEDERAL RIGHTS" AND PROTECTS THEM "IN
THE LUMP," UNITED STATES V. MOSLEY, 238 U.S. 383, 387; IT PROTECTS IN
MOST GENERAL TERMS "ANY RIGHT OR PRIVILEGE SECURED  ...  BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES."  CONGRESS HAS LEFT IT TO
THE COURTS TO MARK THE BOUNDS OF THOSE WORDS, TO DETERMINE ON A CASE-BY
CASE BASIS WHETHER THE RIGHT PURPORTEDLY THREATENED IS A FEDERAL
RIGHT.  THAT DETERMINATION MAY OCCUR AFTER THE CONDUCT CHARGED HAS
TAKEN PLACE OR IT MAY NOT HAVE BEEN ANTICIPATED IN PRIOR DECISIONS; "A
PENUMBRA OF RIGHTS MAY BE INVOLVED, WHICH NONE CAN KNOW UNTIL DECISION
HAS BEEN MADE AND INFRACTION MAY OCCUR BEFORE IT IS HAD."  (FN11)
RELIANCE ON SUCH WORDING PLAINLY BRINGS SEC. 241 CLOSE TO THE DANGER
LINE OF BEING VOID FOR VAGUENESS. 

BUT, AS THE COURT HOLDS, A STRINGENT SCIENTER REQUIREMENT SAVES SEC.
241 FROM CONDEMNATION AS A CRIMINAL STATUTE FAILING TO PROVIDE ADEQUATE
NOTICE OF THE PROSCRIBED CONDUCT.  (FN12)  THE GRAVAMEN OF THE OFFENSE
IS CONSPIRACY, AND THEREFORE, LIKE A STATUTE MAKING CERTAIN CONDUCT
CRIMINAL ONLY IF IT IS DONE "WILLFULLY," SEC. 241 REQUIRES PROOF OF A
SPECIFIC INTENT FOR CONVICTION.  WE HAVE CONSTRUED SEC. 241 TO REQUIRE
PROOF THAT THE PERSONS CHARGED CONSPIRED TO ACT IN DEFIANCE, OR IN
RECKLESS DISREGARD, OF AN ANNOUNCED RULE MAKING THE FEDERAL RIGHT
SPECIFIC AND DEFINITE.  UNITED STATES V. WILLIAMS, 341 U.S. 70, 93-95
(OPINION OF DOUGLAS, J.); SCREWS V. UNITED STATES, 325 U.S. 91, 101-107
(OPINION OF DOUGLAS, J.)(INVOLVING THE PREDECESSOR TO 18 U.S.C. SEC.
242).  SINCE THIS CASE REACHES US ON THE PLEADINGS, THERE IS NO
OCCASION TO DECIDE NOW WHETHER THE GOVERNMENT WILL BE ABLE ON TRIAL TO
SUSTAIN THE BURDEN OF PROVING THE REQUISITE SPECIFIC INTENT VIS-A-VIS
THE RIGHT TO TRAVEL FREELY FROM STATE TO STATE OR THE RIGHT TO EQUAL
UTILIZATION OF STATE FACILITIES.  COMPARE JAMES V. UNITED STATES, 366
U.S. 213, 221-222 (OPINION OF WARREN, C.J.).  IN ANY EVENT, WE MAY WELL
AGREE THAT THE NECESSITY TO DISCHARGE THAT BURDEN CAN IMPERIL THE
EFFECTIVENESS OF SEC. 241 WHERE, AS IS OFTEN THE CASE, THE PERTINENT
CONSTITUTIONAL RIGHT MUST BE IMPLIED FROM A GRANT OF CONGRESSIONAL
POWER OR A PROHIBITION UPON THE EXERCISE OF GOVERNMENTAL POWER.  BUT
SINCE THE LIMITATION ON THE STATUTE'S EFFECTIVENESS DERIVES FROM
CONGRESS' FAILURE TO DEFINE - WITH ANY MEASURE OF SPECIFICITY - THE
RIGHTS ENCOMPASSED, THE REMEDY IS FOR CONGRESS TO WRITE A LAW WITHOUT
THIS DEFECT.  TO PARAPHRASE MY BROTHER DOUGLAS' OBSERVATION IN SCREWS
V. UNITED STATES, 325 U.S., AT 105, ADDRESSED TO A COMPANION STATUTE
WITH THE SAME SHORTCOMING, IF CONGRESS DESIRES TO GIVE THE STATUTE MORE
DEFINITE SCOPE, IT MAY FIND WAYS OF DOING SO. 

FN1  AS I READ THE INDICTMENT, THE ALLEGATION REGARDING THE FALSE
ARRESTS RELATES TO ALL THE OTHER PARAGRAPHS AND NOT MERELY, AS THE
COURT SUGGESTS, TO THE SECOND NUMBERED PARAGRAPH OF THE INDICTMENT. 
SEE N. 1 IN THE COURT'S OPINION.  HENCE, ASSUMING THAT, AS MAINTAINED
BY THE COURT, THE ALLEGATION COULD BE CONSTRUED TO ENCOMPASS
DISCRIMINATORY CONDUCT BY STATE LAW ENFORCEMENT OFFICERS, IT WOULD BE A
SUFFICIENT BASIS FOR PREVENTING THE DISMISSAL OF EACH OF THE OTHER
PARAGRAPHS OF THE INDICTMENT.  THE RIGHT TO BE FREE FROM DISCRIMINATORY
CONDUCT BY LAW ENFORCEMENT OFFICERS WHILE USING PRIVATELY OWNED PLACES
OF PUBLIC ACCOMMODATION (PARAGRAPH ONE) OR WHILE TRAVELING FROM STATE
TO STATE (PARAGRAPHS THREE AND FOUR), OR WHILE DOING ANYTHING ELSE, IS
UNQUESTIONABLY SECURED BY THE EQUAL PROTECTION CLAUSE.  IT WOULD
THEREFORE BE UNNECESSARY TO DECIDE WHETHER THE RIGHT TO TRAVEL FROM
STATE TO STATE IS ITSELF A RIGHT SECURED BY THE CONSTITUTION OR WHETHER
PARAGRAPH ONE IS DEFECTIVE EITHER BECAUSE OF THE ABSENCE OF AN
ALLEGATION OF A RACIAL DISCRIMINATORY MOTIVE OR BECAUSE OF THE
EXCLUSIVE REMEDY PROVISION OF THE CIVIL RIGHTS ACT OF 1964, SEC.
207(B), 78 STAT. 246, 42 U.S.C. SEC. 2000A-6(B) (1964 ED.). 

FN2  I SEE NO BASIS FOR A READING MORE CONSISTENT WITH MY OWN VIEW IN
THE ISOLATED STATEMENT IN THE COURT'S OPINION THAT "THE RIGHTS UNDER
THE EQUAL PROTECTION CLAUSE DESCRIBED BY THIS PARAGRAPH (TWO) OF THE
INDICTMENT HAVE BEEN  ...  FIRMLY AND PRECISELY ESTABLISHED BY A
CONSISTENT LINE OF DECISIONS IN THIS COURT  ...  ." 

FN3  SIMILARLY, I BELIEVE THAT SEC. 241 REACHES A PRIVATE CONSPIRACY
TO INTERFERE WITH THE RIGHT TO TRAVEL FROM STATE TO STATE.  I THEREFORE
NEED NOT REACH THE QUESTION WHETHER THE CONSTITUTION OF ITS OWN FORCE
PROHIBITS PRIVATE INTERFERENCES WITH THAT RIGHT; FOR I CONSTRUE SEC.
241 TO PROHIBIT SUCH INTERFERENCES, AND AS SO CONSTRUED I AM OF THE
OPINION THAT SEC. 241 IS A VALID EXERCISE OF CONGRESSIONAL POWER. 

FN4  THIS PREMISE IS QUESTIONABLE.  TITLE III OF THE CIVIL RIGHTS ACT
OF 1964, 78 STAT.  246, 42 U.S.C. SEC. 2000B (1964 ED.), AUTHORIZED THE
ATTORNEY GENERAL ON COMPLAINT FROM AN INDIVIDUAL THAT HE IS "BEING
DENIED EQUAL UTILIZATION OF ANY PUBLIC FACILITY WHICH IS OWNED,
OPERATED, OR MANAGED BY OR ON BEHALF OF ANY STATE OR SUBDIVISION," TO
COMMENCE A CIVIL ACTION "FOR SUCH RELIEF AS MAY BE APPROPRIATE" AND
AGAINST SUCH PARTIES AS ARE "NECESSARY TO THE GRANT OF EFFECTIVE
RELIEF."  ARGUABLY THIS WOULD AUTHORIZE RELIEF AGAINST PRIVATE PARTIES
NOT ACTING IN CONCERT WITH STATE OFFICERS.  (THIS TITLE OF THE ACT DOES
NOT HAVE AN EXCLUSIVE REMEDY SIMILAR TO SEC. 207(B) OF TITLE II, 42
U.S.C. SEC. 2000A-6(B).) 

THE COURT AFFIRMATIVELY DISCLAIMS ANY INTENTION TO DEAL WITH TITLE
III OF THE CIVIL RIGHTS ACT OF 1964 IN CONNECTION WITH THE SECOND
NUMBERED PARAGRAPH OF THE INDICTMENT.  BUT, AS THE DISTRICT JUDGE
OBSERVED IN HIS OPINION, THE GOVERNMENT MAINTAINED THAT THE RIGHT
DESCRIBED IN THAT PARAGRAPH WAS "SECURED" BY THE FOURTEENTH AMENDMENT
AND, "ADDITIONALLY," BY TITLE III OF THE CIVIL RIGHTS ACT OF 1964.  246
F. SUPP., AT 484.  THAT POSITION WAS NOT EFFECTIVELY ABANDONED IN THIS
COURT. 

FN5  "ALL PERSONS SHALL BE ENTITLED TO THE FULL AND EQUAL ENJOYMENT
OF THE GOODS, SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES, AND
ACCOMMODATIONS OF ANY PLACE OF PUBLIC ACCOMMODATION, AS DEFINED IN THIS
COLOR, RELIGION, OR NATIONAL ORIGIN."  42 U.S.C. SEC. 2000AA) (1964
ED.). 

FN6  THE MAJORITY CONSISTS OF THE JUSTICES JOINING MY BROTHER CLARK'S
OPINION AND THE JUSTICES JOINING THIS OPINION.  THE OPINION OF MR.
JUSTICE STEWART CONSTRUES SEC. 241 AS APPLIED TO THE SECOND NUMBERED
PARAGRAPH TO REQUIRE PROOF OF ACTIVE PARTICIPATION BY STATE OFFICERS IN
THE ALLEGED CONSPIRACY AND THAT OPINION DOES NOT PURPORT TO DEAL WITH
THIS QUESTION. 

FN7  CONGRESS, NOT THE JUDICIARY, WAS VIEWED AS THE MORE LIKELY
AGENCY TO IMPLEMENT FULLY THE GUARANTEES OF EQUALITY, AND THUS IT COULD
BE PRESUMED THE PRIMARY PURPOSE OF THE AMENDMENT WAS TO AUGMENT THE
POWER OF CONGRESS, NOT THE JUDICIARY.  SEE JAMES, THE FRAMING OF THE
FOURTEENTH AMENDMENT 184 (1956); HARRIS, THE QUEST FOR EQUALITY 53-54
(1960); FRANTZ, CONGRESSIONAL POWER TO ENFORCE THE FOURTEENTH AMENDMENT
AGAINST PRIVATE ACTS, 73 YALE L.J. 1353, 1356 (1964). 

FN8  AS THE FIRST MR. JUSTICE HARLAN SAID IN DISSENT IN THE CIVIL
RIGHTS CASES, 109 U.S., AT 54: "IT WAS PERFECTLY WELL KNOWN THAT THE
GREAT DANGER TO THE EQUAL ENJOYMENT BY CITIZENS OF THEIR RIGHTS, AS
CITIZENS, WAS TO BE APPREHENDED NOT ALTOGETHER FROM UNFRIENDLY STATE
LEGISLATION, BUT FROM THE HOSTILE ACTION OF CORPORATIONS AND
INDIVIDUALS IN THE STATES.  AND IT IS TO BE PRESUMED THAT IT WAS
INTENDED, BY THAT SECTION (SEC. 5), TO CLOTHE CONGRESS WITH POWER AND
AUTHORITY TO MEET THAT DANGER."  SEE UNITED STATES V. PRICE, POST, P.
787, AT 803-806, AND APPENDIX. 

FN9  UNITED STATES V. PRICE, POST, P. 787.  SEE SCREWS V. UNITED
STATES, 325 U.S. 91; WILLIAMS V. UNITED STATES, 341 U.S. 97; MONROE V.
PAPE, 365 U.S. 167. 

FN10  CF. ATLANTA MOTEL V. UNITED STATES, 379 U.S. 241, 258, APPLYING
THE SETTLED PRINCIPLE EXPRESSED IN UNITED STATES V. DARBY, 312 U.S.
100, 118, THAT 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  ...  ." 

FN11  MR. JUSTICE RUTLEDGE IN SCREWS V. UNITED STATES, 325 U.S., AT
130. 

FN12  ANTE, PP. 753-754.  SEE GENERALLY, BOYCE MOTOR LINES, INC. V.
UNITED STATES, 342 U.S. 337, 342; AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382, 412-413; UNITED STATES V. RAGEN, 314 U.S. 513,
524; GORIN V. UNITED STATES, 312 U.S. 19, 27-28; HYGRADE PROVISION CO.
V. SHERMAN, 266 U.S. 497, 501-503; OMAECHEVARRIA V. IDAHO, 246 U.S.
343, 348. 
..END :










UNITED STATES V. PRICE 383 U.S. 787 


NOS. 59 AND 60.  ARGUED NOVEMBER 9, 1965.  - DECIDED MARCH 28, 1966.  -
REVERSED AND REMANDED. 


APPELLEES ARE THREE MISSISSIPPI LAW ENFORCEMENT OFFICIALS AND 15
PRIVATE INDIVIDUALS WHO ARE ALLEGED TO HAVE CONSPIRED TO DEPRIVE THREE
INDIVIDUALS OF THEIR RIGHTS UNDER THE FOURTEENTH AMENDMENT.  THE
ALLEGED CONSPIRACY INVOLVED RELEASING THE VICTIMS FROM JAIL AT NIGHT;
INTERCEPTING, ASSAULTING AND KILLING THEM; AND DISPOSING OF THEIR
BODIES.  ITS PURPOSE WAS TO "PUNISH" THE VICTIMS SUMMARILY.  TWO
INDICTMENTS WERE RETURNED.  ONE CHARGED ALL APPELLEES WITH A CONSPIRACY
UNDER 18 U.S.C. SEC 371 TO VIOLATE 18 U.S.C.  SEC 242, WHICH MAKES IT A
MISDEMEANOR WILLFULLY AND UNDER COLOR OF LAW TO SUBJECT ANY PERSON TO
THE DEPRIVATION OF ANY RIGHTS SECURED OR PROTECTED BY THE
CONSTITUTION.  THE INDICTMENT ALSO CHARGED ALL APPELLEES WITH
SUBSTANTIVE VIOLATIONS OF SEC 242.  THE DISTRICT COURT SUSTAINED THE
CONSPIRACY COUNT AGAINST A MOTION TO DISMISS, AND SUSTAINED THE
SUBSTANTIVE COUNTS AS TO THE THREE OFFICIAL DEFENDANTS.  IT DISMISSED
THE SUBSTANTIVE COUNTS AS TO THE 15 PRIVATE DEFENDANTS ON THE GROUND
THAT ALTHOUGH THE INDICTMENT ALLEGED THAT THEY HAD ACTED "UNDER COLOR"
OF LAW, IT DID NOT ALLEGE THAT THEY WERE ACTING AS OFFICERS OF THE
STATE.  THIS DISMISSAL IS HERE ON DIRECT APPEAL AS NO. 60.  THE OTHER
INDICTMENT CHARGED ALL APPELLEES WITH A CONSPIRACY IN VIOLATION OF 18
U.S.C. SEC 241, MAKING IT A FELONY TO CONSPIRE TO INTERFERE WITH A
CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT SECURED OR
PROTECTED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES.  THE
DISTRICT COURT DISMISSED THIS INDICTMENT AS TO ALL APPELLEES ON THE
GROUND THAT SEC 241 DOES NOT INCLUDE RIGHTS PROTECTED BY THE FOURTEENTH
AMENDMENT.  THIS DISMISSAL IS HERE ON DIRECT APPEAL AS NO. 59.  HELD: 

1.  THE DISTRICT COURT ERRED IN DISMISSING THE INDICTMENT IN NO. 60
INSOFAR AS IT CHARGED THE PRIVATE DEFENDANTS WITH SUBSTANTIVE
VIOLATIONS OF SEC 242.  PP. 794-796. 

(A)  "TO ACT 'UNDER COLOR' OF LAW DOES NOT REQUIRE THAT THE ACCUSED
BE AN OFFICER OF THE STATE.  IT IS ENOUGH THAT HE IS A WILLFUL
PARTICIPANT IN JOINT ACTIVITY WITH THE STATE OR ITS AGENTS."  PP. 794
795. 

(B)  THE DISMISSAL OF THE INDICTMENT IN NO. 60 AS TO THE PRIVATE
PERSONS RESULTED FROM THE DISTRICT COURT'S ERRONEOUS CONSTRUCTION OF
THE "UNDER COLOR" OF LAW REQUIREMENT OF SEC 242 AS MAKING THE STATUTE
INAPPLICABLE TO NONOFFICIALS, NOT UPON A CONSTRUCTION OF THE INDICTMENT
AS A PLEADING; HENCE THE DISMISSAL IS REVIEWABLE ON DIRECT APPEAL.  PP.
795-796. 

2.  SECTION 241 INCLUDES WITHIN ITS PROTECTION RIGHTS SECURED OR
PROTECTED BY THE FOURTEENTH AMENDMENT, AND THE DISTRICT COURT
ACCORDINGLY ERRED IN DISMISSING THE INDICTMENT IN NO. 59.  PP. 796
807. 

(A)  THE DISTRICT COURT INCORRECTLY ASSUMED THAT UNITED STATES V.
WILLIAMS, 341 U.S. 70, AUTHORITATIVELY DETERMINED THE INAPPLICABILITY
OF SEC 241 TO DEPRIVATIONS OF FOURTEENTH AMENDMENT RIGHTS.  THE
JUSTICES WHO REACHED THAT ISSUE IN WILLIAMS DIVIDED EQUALLY ON THE
QUESTION.  THAT CASE "THUS LEFT THE PROPER CONSTRUCTION OF SEC 241, AS
REGARDS ITS APPLICABILITY TO PROTECT FOURTEENTH AMENDMENT RIGHTS, AN
OPEN QUESTION."  PP. 797-798. 

(B)  "THERE IS NO DOUBT THAT THE INDICTMENT IN NO. 59 SETS FORTH A
CONSPIRACY WITHIN THE AMBIT OF THE FOURTEENTH AMENDMENT.  LIKE THE
INDICTMENT IN NO. 60  ...  IT ALLEGES THAT THE DEFENDANTS ACTED 'UNDER
COLOR OF LAW' AND THAT THE CONSPIRACY INCLUDED ACTION BY THE STATE
THROUGH ITS LAW ENFORCEMENT OFFICERS TO PUNISH THE ALLEGED VICTIMS
WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT'S
DIRECT ADMONITION TO THE STATES."  PP. 799-800. 

(C)  THE WORDING OF SEC 241 SUGGESTS NO LIMITATION OF ITS COVERAGE TO
EXCLUDE FOURTEENTH AMENDMENT RIGHTS.  "THE LANGUAGE OF SEC 241 IS PLAIN
AND UNLIMITED  ...  .  ITS LANGUAGE EMBRACES ALL OF THE RIGHTS AND
PRIVILEGES SECURED TO CITIZENS BY ALL OF THE CONSTITUTION AND ALL OF
THE LAWS OF THE UNITED STATES."  P. 800. 

(D)  THE LEGISLATIVE HISTORY OF SEC 241 SUPPORTS THE VIEW THAT IT WAS
INTENDED TO ENCOMPASS FOURTEENTH AMENDMENT RIGHTS WITHIN ITS
PROTECTION.  PP. 800-806. 

UNITED STATES V. PRICE ET AL. 

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THESE ARE DIRECT APPEALS FROM THE DISMISSAL IN PART OF TWO
INDICTMENTS RETURNED BY THE UNITED STATES GRAND JURY FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI.  THE INDICTMENTS ALLEGE ASSAULTS BY THE
ACCUSED PERSONS UPON THE RIGHTS OF THE ASSERTED VICTIMS TO DUE PROCESS
OF LAW UNDER THE FOURTEENTH AMENDMENT.  THE INDICTMENT IN NO. 59
CHARGES 18 PERSONS (FN1) WITH VIOLATIONS OF 18 U.S.C. SEC 241 (1964
ED.).  IN NO. 60, THE SAME 18 PERSONS ARE CHARGED WITH OFFENSES BASED
UPON 18 U.S.C. SEC 242 (1964 ED.).  THESE ARE AMONG THE SO-CALLED CIVIL
RIGHTS STATUTES WHICH HAVE COME TO US FROM RECONSTRUCTION DAYS, THE
PERIOD IN OUR HISTORY WHICH ALSO PRODUCED THE THIRTEENTH, FOURTEENTH,
AND FIFTEENTH AMENDMENTS TO THE CONSTITUTION. 

THE SOLE QUESTION PRESENTED IN THESE APPEALS IS WHETHER THE SPECIFIED
STATUTES MAKE CRIMINAL THE CONDUCT FOR WHICH THE INDIVIDUALS WERE
INDICTED.  IT IS AN ISSUE OF CONSTRUCTION, NOT OF CONSTITUTIONAL
POWER.  WE HAVE NO DOUBT OF "THE POWER OF CONGRESS TO ENFORCE BY
APPROPRIATE CRIMINAL SANCTION EVERY RIGHT GUARANTEED BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT."  UNITED STATES V. WILLIAMS, 341
U.S. 70, 72.  (FN2) 

THE EVENTS UPON WHICH THE CHARGES ARE BASED, AS ALLEGED IN THE
INDICTMENTS, ARE AS FOLLOWS:  ON JUNE 21, 1964, CECIL RAY PRICE, THE
DEPUTY SHERIFF OF NESHOBA COUNTY, MISSISSIPPI, DETAINED MICHAEL HENRY
SCHWERNER, JAMES EARL CHANEY AND ANDREW GOODMAN IN THE NESHOBA COUNTY
JAIL LOCATED IN PHILADELPHIA, MISSISSIPPI.  HE RELEASED THEM IN THE
DARK OF THAT NIGHT.  HE THEN PROCEEDED BY AUTOMOBILE ON HIGHWAY 19 TO
INTERCEPT HIS ERSTWHILE WARDS.  HE REMOVED THE THREE MEN FROM THEIR
AUTOMOBILE, PLACED THEM IN AN OFFICIAL AUTOMOBILE OF THE NESHOBA COUNTY
SHERIFF'S OFFICE, AND TRANSPORTED THEM TO A PLACE ON AN UNPAVED ROAD. 

THESE ACTS, IT IS ALLEGED, WERE PART OF A PLAN AND CONSPIRACY WHEREBY
THE THREE MEN WERE INTERCEPTED BY THE 18 DEFENDANTS, INCLUDING DEPUTY
SHERIFF PRICE, SHERIFF RAINEY AND PATROLMAN WILLIS OF THE PHILADELPHIA,
MISSISSIPPI, POLICE DEPARTMENT.  THE PURPOSE AND INTENT OF THE RELEASE
FROM CUSTODY AND THE INTERCEPTION, ACCORDING TO THE CHARGE, WERE TO
"PUNISH" THE THREE MEN.  THE DEFENDANTS, IT IS ALLEGED, "DID WILFULLY
ASSAULT, SHOOT AND KILL" EACH OF THE THREE.  AND, THE CHARGE CONTINUES,
THE BODIES OF THE THREE VICTIMS WERE TRANSPORTED BY ONE OF THE
DEFENDANTS FROM THE RENDEZVOUS ON THE UNPAVED ROAD TO THE VICINITY OF
THE CONSTRUCTION SITE OF AN EARTHEN DAM APPROXIMATELY FIVE MILES
SOUTHWEST OF PHILADELPHIA, MISSISSIPPI. 

THESE ARE FEDERAL AND NOT STATE INDICTMENTS.  THEY DO NOT CHARGE AS
CRIMES THE ALLEGED ASSAULTS OR MURDERS.  THE INDICTMENTS ARE FRAMED TO
FIT THE STATED FEDERAL STATUTES, AND THE QUESTION BEFORE US IS WHETHER
THE ATTEMPT OF THE DRAFTSMAN FOR THE GRAND JURY IN MISSISSIPPI HAS BEEN
SUCCESSFUL: WHETHER THE INDICTMENTS CHARGE OFFENSES AGAINST THE VARIOUS
DEFENDANTS WHICH MAY BE PROSECUTED UNDER THE DESIGNATED FEDERAL
STATUTES. 

WE SHALL DEAL FIRST WITH THE INDICTMENT IN NO. 60, BASED ON SEC 242
OF THE CRIMINAL CODE, AND THEN WITH THE INDICTMENT IN NO. 59, UNDER SEC
241.  WE DO THIS FOR EASE OF EXPOSITION AND BECAUSE SEC 242 WAS ENACTED
BY THE CONGRESS ABOUT FOUR YEARS PRIOR TO SEC 241.  (FN3)  SECTION 242
WAS ENACTED IN 1866; SEC 241 IN 1870. 

                             I. NO. 60. 

THAN $1,000 OR IMPRISONMENT FOR NOT MORE THAN ONE YEAR, OR BOTH.  SO
FAR AS HERE SIGNIFICANT, IT PROVIDES PUNISHMENT FOR "WHOEVER, UNDER
COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CUSTOM, WILLFULLY
SUBJECTS ANY INHABITANT OF ANY STATE  ...  TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITES SECURED OR PROTECTED BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES  ...  ." 

THE INDICTMENT IN NO. 60 CONTAINS FOUR COUNTS, EACH OF WHICH NAMES AS
DEFENDANTS THE THREE OFFICIALS AND 15 NONOFFICIAL PERSONS.  THE FIRST
COURT CHARGES, ON THE BASIS OF ALLEGATIONS SUBSTANTIALLY AS SET FORTH
ABOVE, THAT ALL OF THE DEFENDANTS CONSPIRED "TO WILFULLY SUBJECT"
SCHWERNER, CHANEY AND GOODMAN "TO THE DEPRIVATION OF THEIR RIGHT,
PRIVILEGE AND IMMUNITY SECURED AND PROTECTED BY THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES NOT TO BE SUMMARILY
PUNISHED WITHOUT DUE PROCESS OF LAW BY PERSONS ACTING UNDER COLOR OF
THE LAWS OF THE STATE OF MISSISSIPPI."  THIS IS SAID TO CONSTITUTE A
CONSPIRACY TO VIOLATE SEC 242, AND THEREFORE AN OFFENSE UNDER 18 U.S.C.
SEC 371 (1964 ED.).  THE LATTER SECTION, THE GENERAL CONSPIRACY
STATUTE, MAKES IT A CRIME TO CONSPIRE TO COMMIT ANY OFFENSE AGAINST THE
UNITED STATES.  THE PENALTY FOR VIOLATION IS THE SAME AS FOR DIRECT
VIOLATION OF SEC 242 - THAT IS, IT IS A MISDEMEANOR.  (FN4) 

ON A MOTION TO DISMISS, THE DISTRICT COURT SUSTAINED THIS FIRST COUNT
AS TO ALL DEFENDANTS.  AS TO THE SHERIFF, DEPUTY SHERIFF AND PATROLMAN,
THE COURT RECOGNIZED THAT EACH WAS CLEARLY ALLEGED TO HAVE BEEN ACTING
"UNDER COLOR OF LAW" AS REQUIRED BY SEC 242.  (FN5)  AS TO THE PRIVATE
PERSONS, THE DISTRICT COURT HELD THAT "IT IS IMMATERIAL TO THE
CONSPIRACY THAT THESE PRIVATE INDIVIDUALS WERE NOT ACTING UNDER COLOR
OF LAW" BECAUSE THE COUNT CHARGES THAT THEY WERE CONSPIRING WITH
PERSONS WHO WERE SO ACTING.  SEE UNITED STATES V. RABINOWICH, 238 U.S.
78, 87. 

THE COURT NECESSARILY WAS SATISFIED THAT THE INDICTMENT, IN ALLEGING
THE ARREST, DETENTION, RELEASE, INTERCEPTION AND KILLING OF SCHWERNER,
CHANEY AND GOODMAN, ADEQUATELY STATED AS THE PURPOSE OF THE CONSPIRACY,
A VIOLATION OF SEC 242, AND THAT THIS SECTION COULD BE VIOLATED BY
"WILFULLY SUBJECTING THE VICTIMS  ...  TO THE DEPRIVATION OF THEIR
RIGHT, PRIVILEGE AND IMMUNITY" UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT. 

NO APPEAL WAS TAKEN BY THE DEFENDANTS FROM THE DECISION OF THE TRIAL
COURT WITH RESPECT TO THE FIRST COUNT AND IT IS NOT BEFORE US FOR
ADJUDICATION. 

THE SECOND, THIRD AND FOURTH COUNTS OF THE INDICTMENT IN NO. 60
CHARGE ALL OF THE DEFENDANTS, NOT WITH CONSPIRACY, BUT WITH SUBSTANTIVE
VIOLATIONS OF SEC 242.  EACH OF THESE COUNTS CHARGES THAT THE
DEFENDANTS, ACTING "UNDER COLOR OF THE LAWS OF THE STATE OF
MISSISSIPPI," "DID WILFULLY ASSAULT, SHOOT AND KILL" SCHWERNER, CHANEY
AND GOODMAN, RESPECTIVELY, "FOR THE PURPOSE AND WITH THE INTENT" OF
PUNISHING EACH OF THE THREE AND THAT THE DEFENDANTS "DID THEREBY
WILFULLY DEPRIVE" EACH "OF RIGHTS, PRIVILEGES AND IMMUNITIES SECURED
AND PROTECTED BY THE CONSTITUTION AND THE LAWS OF THE UNITED STATES" -
NAMELY, DUE PROCESS OF LAW. 

THE DISTRICT COURT HELD THESE COUNTS OF THE INDICTMENT VALID AS TO
THE SHERIFF, DEPUTY SHERIFF AND PATROLMAN.  BUT IT DISMISSED THEM AS
AGAINST THE NONOFFICIAL DEFENDANTS BECAUSE THE COUNTS DO NOT CHARGE
THAT THE LATTER WERE "OFFICERS IN FACT, OR DE FACTO IN ANYTHING
ALLEGEDLY DONE BY THEM 'UNDER COLOR OF LAW.'" 

WE NOTE THAT BY SUSTAINING THESE COUNTS AGAINST THE THREE OFFICERS,
THE COURT AGAIN NECESSARILY CONCLUDED THAT AN OFFENSE UNDER SEC 242 IS
PROPERLY STATED BY ALLEGATIONS OF WILLFUL DEPRIVATION, UNDER COLOR OF
LAW, OF LIFE AND LIBERTY WITHOUT DUE PROCESS OF LAW.  WE AGREE.  NO
OTHER RESULT WOULD BE PERMISSIBLE UNDER THE DECISIONS OF THIS COURT. 
SCREWS V. UNITED STATES, 325 U.S. 91; WILLIAMS II.  (FN6) 

BUT WE CANNOT AGREE THAT THE SECOND, THIRD OR FOURTH COUNTS MAY BE
DISMISSED AS AGAINST THE NONOFFICIAL DEFENDANTS.  SECTION 242 APPLIES
ONLY WHERE A PERSON INDICTED HAS ACTED "UNDER COLOR" OF LAW.  PRIVATE
PERSONS, JOINTLY ENGAGED WITH STATE OFFICIALS IN THE PROHIBITED ACTION,
ARE ACTING "UNDER COLOR" OF LAW FOR PURPOSES OF THE STATUTE.  TO ACT
"UNDER COLOR" OF LAW DOES NOT REQUIRE THAT THE ACCUSED BE AN OFFICER OF
THE STATE.  IT IS ENOUGH THAT HE IS A WILLFUL PARTICIPANT IN JOINT
ACTIVITY WITH THE STATE OR ITS AGENTS.  (FN7) 

IN THE PRESENT CASE, ACCORDING TO THE INDICTMENT, THE BRUTAL JOINT
ADVENTURE WAS MADE POSSIBLE BY STATE DETENTION AND CALCULATED RELEASE
OF THE PRISONERS BY AN OFFICER OF THE STATE.  THIS ACTION, CLEARLY
ATTRIBUTABLE TO THE STATE, WAS PART OF THE MONSTROUS DESIGN DESCRIBED
BY THE INDICTMENT.  STATE OFFICERS PARTICIPATED IN EVERY PHASE OF THE
ALLEGED VENTURE:  THE RELEASE FROM JAIL, THE INTERCEPTION, ASSAULT AND
MURDER.  IT WAS A JOINT ACTIVITY, FROM START TO FINISH.  THOSE WHO TOOK
ADVANTAGE OF PARTICIPATION BY STATE OFFICERS IN ACCOMPLISHMENT OF THE
FOUL PURPOSE ALLEGED MUST SUFFER THE CONSEQUENCES OF THAT
PARTICIPATION.  IN EFFECT, IF THE ALLEGATIONS ARE TRUE, THEY WERE
PARTICIPANTS IN OFFICIAL LAWLESSNESS, ACTING IN WILLFUL CONCERT WITH
STATE OFFICERS AND HENCE UNDER COLOR OF LAW. 

APPELLEES URGE THAT THE DECISION OF THE DISTRICT COURT WAS BASED UPON
A CONSTRUCTION OF THE INDICTMENT TO THE EFFECT THAT IT DID NOT CHARGE
THE PRIVATE INDIVIDUALS WITH ACTING "UNDER COLOR" OF LAW. 
CONSEQUENTLY, THEY URGE US TO AFFIRM IN NO. 60.  IN ANY EVENT, THEY
SUBMIT, SINCE THE TRIAL COURT'S DECISION WAS BASED ON THE INADEQUACY OF
THE INDICTMENT AND NOT ON CONSTRUCTION OF THE STATUTE, WE HAVE NO
JURISDICTION TO REVIEW IT ON DIRECT APPEAL.  UNITED STATES V. SWIFT &
CO., 318 U.S. 442.  WE DO NOT AGREE.  EACH COUNT OF THE INDICTMENT
SPECIFICALLY ALLEGES THAT ALL OF THE DEFENDANTS WERE ACTING "UNDER
COLOR OF THE LAWS OF THE STATE OF MISSISSIPPI."  THE FAULT LIES NOT IN
THE INDICTMENT, BUT IN THE DISTRICT COURT'S VIEW THAT THE STATUTE
REQUIRES THAT EACH OFFENDER BE AN OFFICIAL OR THAT HE ACT IN AN
OFFICIAL CAPACITY.  WE HAVE JURISDICTION TO CONSIDER THIS STATUTORY
QUESTION ON DIRECT APPEAL AND, AS WE HAVE SHOWN, THE TRIAL COURT'S
DETERMINATION OF IT IS IN ERROR.  SINCE EACH OF THE PRIVATE INDIVIDUALS
IS INDICTABLE AS A PRINCIPAL ACTING UNDER COLOR OF LAW, WE NEED NOT
CONSIDER WHETHER HE MIGHT BE HELD TO ANSWER AS AN "AIDER OR ABETTOR"
UNDER 18 U.S.C. SEC 2 (1964 ED.), DESPITE OMISSION TO INCLUDE SUCH A
CHARGE IN THE INDICTMENT. 

ACCORDINGLY, WE REVERSE THE DISMISSAL OF THE SECOND, THIRD AND FOURTH
COUNTS OF THE INDICTMENT IN NO. 60 AND REMAND FOR TRIAL. 

                                  II. NO. 59. 

NO. 59 CHARGES EACH OF THE 18 DEFENDANTS WITH A FELONY - A VIOLATION
OF SEC 241.  THIS INDICTMENT IS IN ONE COUNT.  IT CHARGES THAT THE
DEFENDANTS "CONSPIRED TOGETHER  ...  TO INJURE, OPPRESS, THREATEN AND
INTIMIDATE" SCHWERNER, CHANEY AND GOODMAN "IN THE FREE EXERCISE AND
ENJOYMENT OF THE RIGHT AND PRIVILEGE SECURED TO THEM BY THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES NOT TO BE DEPRIVED
OF LIFE OR LIBERTY WITHOUT DUE PROCESS OF LAW BY PERSONS ACTING UNDER
COLOR OF THE LAWS OF MISSISSIPPI."  THE INDICTMENT ALLEGES THAT IT WAS
THE PURPOSE OF THE CONSPIRACY THAT DEPUTY SHERIFF PRICE WOULD RELEASE
SCHWERNER, CHANEY AND GOODMAN FROM CUSTODY IN THE NESHOBA COUNTY JAIL
AT SUCH TIME THAT PRICE AND THE OTHER 17 DEFENDANTS "COULD AND WOULD
INTERCEPT" THEM "AND THREATEN, ASSAULT, SHOOT AND KILL THEM."  THE
PENALTY UNDER SEC 241 IS A FINE OF NOT MORE THAN $5,000, OR
IMPRISONMENT FOR NOT MORE THAN 10 YEARS, OR BOTH. 


"IF TWO OR MORE PERSONS CONSPIRE TO INJURE, OPPRESS, THREATEN, OR
INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT
OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES, OR BECAUSE OF HIS HAVING SO EXERCISED THE SAME; OR: 

"IF TWO OR MORE PERSONS GO IN DISGUISE ON THE HIGHWAY, OR ON THE
PREMISES OF ANOTHER, WITH INTENT TO PREVENT OR HINDER HIS FREE EXERCISE
OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SO SECURED: 

"THEY SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN
TEN YEARS, OR BOTH." 

THE DISTRICT COURT DISMISSED THE INDICTMENT AS TO ALL DEFENDANTS.  IN
EFFECT, ALTHOUGH SEC 241 INCLUDES RIGHTS OR PRIVILEGES SECURED BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES WITHOUT QUALIFICATION OR
LIMITATION, THE COURT HELD THAT IT DOES NOT INCLUDE RIGHTS PROTECTED BY
THE FOURTEENTH AMENDMENT. 

IT WILL BE RECALLED THAT IN NO. 60 THE DISTRICT COURT HELD THAT SEC
242 INCLUDED THE DENIAL OF FOURTEENTH AMENDMENT RIGHTS - THE SAME RIGHT
TO DUE PROCESS INVOLVED IN THE INDICTMENT UNDER SEC 241.  BOTH INCLUDE
RIGHTS OR PRIVILEGES SECURED BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES.  NEITHER IS QUALIFIED OR LIMITED.  EACH INCLUDES, PRESUMABLY,
ALL OF THE CONSTITUTION AND LAWS OF THE UNITED STATES.  TO THE READER
OF THE TWO SECTIONS, VERSED ONLY IN THE ENGLISH LANGUAGE, IT MAY SEEM
BEWILDERING THAT THE TWO SECTIONS COULD BE SO DIFFERENTLY READ. 

BUT THE DISTRICT COURT PURPORTED TO READ THE STATUTES WITH THE GLOSS
OF WILLIAMS I. IN THAT CASE, THE ONLY CASE IN WHICH THIS COURT HAS
SQUARELY CONFRONTED THE POINT AT ISSUE, THE COURT DID IN FACT SUSTAIN
DISMISSAL OF AN INDICTMENT UNDER SEC 241.  BUT IT DID NOT, AS THE
DISTRICT COURT INCORRECTLY ASSUMED, HOLD THAT SEC 241 IS INAPPLICABLE
TO FOURTEENTH AMENDMENT RIGHTS.  THE COURT DIVIDED EQUALLY ON THE
ISSUE.  FOUR JUSTICES, IN AN OPINION BY MR. JUSTICE FRANKFURTER, WERE
OF THE VIEW THAT SEC 241 "ONLY COVERS CONDUCT WHICH INTERFERES WITH
RIGHTS ARISING FROM THE SUBSTANTIVE POWERS OF THE FEDERAL GOVERNMENT" -
RIGHTS "WHICH CONGRESS CAN BEYOND DOUBT CONSTITUTIONALLY SECURE AGAINST
INTERFERENCE BY PRIVATE INDIVIDUALS."  341 U.S., AT 73, 77.  FOUR OTHER
JUSTICES, IN AN OPINION BY MR. JUSTICE DOUGLAS, FOUND NO SUPPORT FOR
MR. JUSTICE FRANKFURTER'S VIEW IN THE LANGUAGE OF THE SECTION, ITS
LEGISLATIVE HISTORY, OR ITS JUDICIAL INTERPRETATION UP TO THAT TIME. 
THEY READ THE STATUTE AS PLAINLY COVERING CONSPIRACIES TO INJURE OTHERS
IN THE EXERCISE OF FOURTEENTH AMENDMENT RIGHTS.  THEY COULD SEE NO
OBSTACLE TO USING IT TO PUNISH DEPRIVATIONS OF SUCH RIGHTS.  DISMISSAL
OF THE INDICTMENT WAS AFFIRMED BECAUSE MR. JUSTICE BLACK VOTED WITH
THOSE WHO JOINED MR. JUSTICE FRANKFURTER.  HE DID SO, HOWEVER, FOR AN
ENTIRELY DIFFERENT REASON - THAT THE PROSECUTION WAS BARRED BY RES
JUDICATA - AND HE EXPRESSED NO VIEW ON THE ISSUE WHETHER "SEC 241, AS
APPLIED, IS TOO VAGUE AND UNCERTAIN IN SCOPE TO BE CONSISTENT WITH THE
FIFTH AMENDMENT."  WILLIAMS I THUS LEFT THE PROPER CONSTRUCTION OF SEC
241, AS REGARDS ITS APPLICABILITY TO PROTECT FOURTEENTH AMENDMENT
RIGHTS, AN OPEN QUESTION. 

IN VIEW OF THE DETAILED OPINIONS IN WILLIAMS I, IT WOULD BE
SUPEREROGATION TO TRACK THE ARGUMENTS IN ALL OF THEIR INTRICACY.  ON
THE BASIS OF AN EXTENSIVE RE-EXAMINATION OF THE QUESTION, WE CONCLUDE
THAT THE DISTRICT COURT ERRED; THAT SEC 241 MUST BE READ AS IT IS
WRITTEN - TO REACH CONSPIRACIES "TO INJURE  ...  ANY CITIZEN IN THE
FREE EXERCISE OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY
THE CONSTITUTION OR LAWS OF THE UNITED STATES  ...  "; THAT THIS
LANGUAGE INCLUDES RIGHTS OR PRIVILEGES PROTECTED BY THE FOURTEENTH
AMENDMENT; THAT WHATEVER THE ULTIMATE COVERAGE OF THE SECTION MAY BE,
IT EXTENDS TO CONSPIRACIES OTHERWISE WITHIN THE SCOPE OF THE SECTION,
PARTICIPATED IN BY OFFICIALS ALONE OR IN COLLABORATION WITH PRIVATE
PERSONS; AND THAT THE INDICTMENT IN NO. 59 PROPERLY CHARGES SUCH A
CONSPIRACY IN VIOLATION OF SEC 241.  WE SHALL CONFINE OURSELVES TO A
REVIEW OF THE MAJOR CONSIDERATIONS WHICH INDUCE OUR CONCLUSION. 

1.  THERE IS NO DOUBT THAT THE INDICTMENT IN NO. 59 SETS FORTH A
CONSPIRACY WITHIN THE AMBIT OF THE FOURTEENTH AMENDMENT.  LIKE THE
INDICTMENT IN NO. 60, SUPRA, IT ALLEGES THAT THE DEFENDANTS ACTED
"UNDER COLOR OF LAW" AND THAT THE CONSPIRACY INCLUDED ACTION BY THE
STATE THROUGH ITS LAW ENFORCEMENT OFFICERS TO PUNISH THE ALLEGED
VICTIMS WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT'S DIRECT ADMONITION TO THE STATES. 

THE INDICTMENT SPECIFICALLY ALLEGES THAT THE SHERIFF, DEPUTY SHERIFF
AND A PATROLMAN PARTICIPATED IN THE CONSPIRACY; THAT IT WAS A PART OF
THE "PLAN AND PURPOSE OF THE CONSPIRACY" THAT DEPUTY SHERIFF PRICE,
"WHILE HAVING THE THREE VICTIMS  ...  IN HIS CUSTODY IN THE NESHOBA
COUNTY JAIL  ... WOULD RELEASE THEM FROM CUSTODY AT SUCH TIME THAT HE
AND OTHER OF THE DEFENDANTS  ...  COULD AND WOULD INTERCEPT THE THREE
VICTIMS  ...  AND THREATEN, ASSAULT, SHOOT AND KILL THEM." 

THIS IS AN ALLEGATION OF STATE ACTION WHICH, BEYOND DISPUTE, BRINGS
THE CONSPIRACY WITHIN THE AMBIT OF THE FOURTEENTH AMENDMENT.  IT IS AN
ALLEGATION OF OFFICIAL, STATE PARTICIPATION IN MURDER, ACCOMPLISHED BY
AND THROUGH ITS OFFICERS WITH THE PARTICIPATION OF OTHERS.  IT IS AN
ALLEGATION THAT THE STATE, WITHOUT THE SEMBLANCE OF DUE PROCESS OF LAW
AS REQUIRED OF IT BY THE FOURTEENTH AMENDMENT, USED ITS SOVEREIGN POWER
AND OFFICE TO RELEASE THE VICTIMS FROM JAIL SO THAT THEY WERE NOT
CHARGED AND TRIED AS REQUIRED BY LAW, BUT INSTEAD COULD BE INTERCEPTED
AND KILLED.  IF THE FOURTEENTH AMENDMENT FORBIDS DENIAL OF COUNSEL, IT
CLEARLY DENOUNCES DENIAL OF ANY TRIAL AT ALL. 

AS WE HAVE CONSISTENTLY HELD "THE FOURTEENTH AMENDMENT PROTECTS THE
INDIVIDUAL AGAINST STATE ACTION, NOT AGAINST WRONGS DONE BY
INDIVIDUALS."  WILLIAMS I, 341 U.S., AT 92 (OPINION OF DOUGLAS, J.). 
IN THE PRESENT CASE, THE PARTICIPATION BY LAW ENFORCEMENT OFFICERS, AS
ALLEGED IN THE INDICTMENT, IS CLEARLY STATE ACTION, AS WE HAVE
DISCUSSED, AND IT IS THEREFORE WITHIN THE SCOPE OF THE FOURTEENTH
AMENDMENT. 

2.  THE ARGUMENT, HOWEVER, OF MR. JUSTICE FRANKFURTER'S OPINION IN
WILLIAMS I, UPON WHICH THE DISTRICT COURT RESTS ITS DECISION, CUTS
BENEATH THIS.  IT DOES NOT DENY THAT THE ACCUSED CONDUCT IS WITHIN THE
SCOPE OF THE FOURTEENTH AMENDMENT, BUT IT CONTENDS THAT IN ENACTING SEC
241, THE CONGRESS INTENDED TO INCLUDE ONLY THE RIGHTS AND PRIVILEGES
CONFERRED ON THE CITIZEN BY REASON OF THE "SUBSTANTIVE" POWERS OF THE
FEDERAL GOVERNMENT - THAT IS, BY REASON OF FEDERAL POWER OPERATING
DIRECTLY UPON THE CITIZEN AND NOT MERELY BY MEANS OF PROHIBITIONS OF
STATE ACTION.  AS THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN
WILLIAMS I, RELIED UPON IN THE OPINION BELOW, PUT IT, "THE CONGRESS HAD
IN MIND THE FEDERAL RIGHTS AND PRIVILEGES WHICH APPERTAIN TO CITIZENS
AS SUCH AND NOT THE GENERAL RIGHTS EXTENDED TO ALL PERSONS BY THE  ...
FOURTEENTH AMENDMENT."  179 F.2D 644, 648.  WE DO NOT AGREE. 

THE LANGUAGE OF SEC 241 IS PLAIN AND UNLIMITED.  AS WE HAVE
DISCUSSED, ITS LANGUAGE EMBRACES ALL OF THE RIGHTS AND PRIVILEGES
SECURED TO CITIZENS BY ALL OF THE CONSTITUTION AND ALL OF THE LAWS OF
THE UNITED STATES.  THERE IS NO INDICATION IN THE LANGUAGE THAT THE
SWEEP OF THE SECTION IS CONFINED TO RIGHTS THAT ARE CONFERRED BY OR
"FLOW FROM" THE FEDERAL GOVERNMENT, AS DISTINGUISHED FROM THOSE SECURED
OR CONFIRMED OR GUARANTEED BY THE CONSTITUTION.  WE AGREE WITH THE
OBSERVATION OF MR. JUSTICE HOLMES IN UNITED STATES V. MOSLEY, 238 U.S.
383, 387-388, THAT: 

"THE SOURCE OF THIS SECTION IN THE DOINGS OF THE KU KLUX AND THE LIKE
IS OBVIOUS AND ACTS OF VIOLENCE OBVIOUSLY WERE IN THE MIND OF THE
CONGRESS.  NATURALLY CONGRESS PUT FORTH ALL ITS POWERS ...  .  THIS
PROTECTED THEM IN THE LUMP  ...  .  IT SHOULD NOT BE CONSTRUED SO AS TO
DEPRIVE CITIZENS OF THE UNITED STATES OF THE GENERAL PROTECTION WHICH
ON ITS FACE SEC 19 (NOW SEC 241) MOST REASONABLY AFFORDS."  (FN8) 

WE BELIEVE, WITH MR. JUSTICE HOLMES, THAT THE HISTORY OF THE EVENTS
FROM WHICH SEC 241 EMERGED ILLUMINATES THE PURPOSE AND MEANS OF THE
STATUTE WITH AN UNMISTAKABLE LIGHT.  WE THINK THAT HISTORY LEAVES NO
DOUBT THAT, IF WE ARE TO GIVE SEC 241 THE SCOPE THAT ITS ORIGINS
DICTATE, WE MUST ACCORD IT A SWEEP AS BROAD AS ITS LANGUAGE.  WE ARE
NOT AT LIBERTY TO SEEK INGENIOUS ANALYTICAL INSTRUMENTS FOR EXCLUDING
FROM ITS GENERAL LANGUAGE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT - PARTICULARLY SINCE THE VIOLENT DENIAL OF LEGAL PROCESS WAS
ONE OF THE REASONS MOTIVATING ENACTMENT OF THE SECTION.  (FN9) 

ENFORCEMENT ACT OF 1870, 16 STAT. 140.  (FN10)  THE ACT WAS PASSED ON
MAY 31, 1870, ONLY A FEW MONTHS AFTER RATIFICATION OF THE FIFTEENTH
AMENDMENT.  IN ADDITION TO THE NEW SEC 241, IT INCLUDED A RE-ENACTMENT
OF A PROVISION OF THE CIVIL RIGHTS ACT OF 1866 WHICH IS NOW SEC 242. 
THE INTENDED BREADTH OF SEC 241 IS EMPHASIZED BY CONTRAST WITH THE
NARROWNESS OF SEC 242 AS IT THEN WAS.  (FN11)  SECTION 242 FORBADE THE
DEPRIVATION, "UNDER COLOR OF ANY LAW," OF "ANY RIGHT SECURED OR
PROTECTED BY THIS ACT."  THE RIGHTS PROTECTED BY THE ACT WERE NARROW
AND SPECIFIC:  "TO MAKE AND ENFORCE CONTRACTS, TO SUE, BE PARTIES, GIVE
EVIDENCE, AND TO THE FULL AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS
FOR THE SECURITY OF PERSON AND PROPERTY AS IS ENJOYED BY WHITE CITIZENS
AND TO BE SUBJECT TO LIKE PUNISHMENT, PAINS, PENALTIES, TAXES,
LICENSES, AND EXACTIONS OF EVERY KIND, AND NONE OTHER."  ACT OF MAY 31,
1870, SEC 16, 16 STAT. 144, RE-ENACTING WITH MINOR CHANGES ACT OF APRIL
9, 1866, SEC 1, 14 STAT. 27.  BETWEEN 1866 AND 1870 THERE WAS MUCH
AGITATED CRITICISM IN THE CONGRESS AND IN THE NATION BECAUSE OF THE
CONTINUED DENIAL OF RIGHTS TO NEGROES, SOMETIMES ACCOMPANIED BY VIOLENT
ASSAULTS.  IN RESPONSE TO THE DEMANDS FOR MORE STRINGENT LEGISLATION
CONGRESS ENACTED THE ENFORCEMENT ACT OF 1870.  CONGRESS HAD BEFORE IT
AND RE-ENACTED SEC 242 WHICH WAS EXPLICITLY LIMITED AS WE HAVE
DESCRIBED.  AT THE SAME TIME, IT INCLUDED SEC 241 IN THE ACT USING
BROAD LANGUAGE TO COVER NOT JUST THE RIGHTS ENUMERATED IN SEC 242, BUT
ALL RIGHTS AND PRIVILEGES UNDER THE CONSTITUTION AND LAWS OF THE UNITED
STATES. 

IT WAS NOT UNTIL THE STATUTORY REVISION OF 1874 THAT THE SPECIFIC
ENUMERATION OF PROTECTED RIGHTS WAS ELIMINATED FROM SEC 242.  THE
241 ALREADY DID:  "ANY RIGHTS, PRIVILEGES, OR IMMUNITIES, SECURED OR
PROTECTED BY THE CONSTITUTION AND LAWS OF THE UNITED STATES."  THE
SUBSTANTIAL CHANGE THUS EFFECTED WAS MADE WITH THE CUSTOMARY STOUT
ASSERTIONS OF THE CODIFIERS THAT THEY HAD MERELY CLARIFIED AND
REORGANIZED WITHOUT CHANGING SUBSTANCE.  (FN12)  SECTION 241 WAS LEFT
ESSENTIALLY UNCHANGED, AND NEITHER IN THE 1874 REVISION NOR IN ANY
SUBSEQUENT RE-ENACTMENT HAS THERE BEEN THE SLIGHTEST INDICATION OF A
CONGRESSIONAL INTENT TO NARROW OR LIMIT THE ORIGINAL BROAD SCOPE OF SEC
241.  IT IS CLEAR, THEREFORE, THAT SEC 241, FROM ORIGINAL ENACTMENT
THROUGH SUBSEQUENT CODIFICATIONS, WAS INTENDED TO DEAL, AS MR. JUSTICE
HOLMES PUT IT, WITH CONSPIRACIES TO INTERFERE WITH "FEDERAL RIGHTS AND
WITH ALL FEDERAL RIGHTS."  WE FIND NO BASIS WHATSOEVER FOR A JUDGMENT
OF SOLOMON WHICH WOULD GIVE TO THE STATUTE LESS THAN ITS WORDS
COMMAND.  (FN13) 

THE PURPOSE AND SCOPE OF THE 1866 AND 1870 ENACTMENTS MUST BE VIEWED
AGAINST THE EVENTS AND PASSIONS OF THE TIME.  (FN14)  THE CIVIL WAR HAD
ENDED IN APRIL 1865.  RELATIONS BETWEEN NEGROES AND WHITES WERE
INCREASINGLY TURBULENT.  (FN15)  CONGRESS HAD TAKEN CONTROL OF THE
ENTIRE GOVERNMENTAL PROCESS IN FORMER CONFEDERATE STATES.  IT HAD
DECLARED THE GOVERNMENTS IN 10 "UNRECONSTRUCTED" STATES TO BE ILLEGAL
AND HAD SET UP FEDERAL MILITARY ADMINISTRATIONS IN THEIR PLACE. 
CONGRESS REFUSED TO SEAT REPRESENTATIVES FROM THESE STATES UNTIL THEY
HAD ADOPTED CONSTITUTIONS GUARANTEEING NEGRO SUFFRAGE, AND HAD RATIFIED
THE FOURTEENTH AMENDMENT.  CONSTITUTIONAL CONVENTIONS WERE CALLED IN
1868.  SIX OF THE 10 STATES FULFILLED CONGRESS' REQUIREMENTS IN 1868,
THE OTHER FOUR BY 1870. 

FOR A FEW YEARS "RADICAL" REPUBLICANS DOMINATED THE GOVERNMENTS OF
THE SOUTHERN STATES AND NEGROES PLAYED A SUBSTANTIAL POLITICAL ROLE. 
BUT COUNTERMEASURES WERE SWIFT AND VIOLENT.  THE KU KLUX KLAN WAS
ORGANIZED BY SOUTHERN WHITES IN 1866 AND A SIMILAR ORGANIZATION
APPEARED WITH THE ROMANTIC TITLE OF THE KNIGHTS OF THE WHITE CAMELLIA. 
IN 1868 A WAVE OF MURDERS AND ASSAULTS WAS LAUNCHED INCLUDING
ASSASSINATIONS DESIGNED TO KEEP NEGROES FROM THE POLLS.  (FN16)  THE
STATES THEMSELVES WERE HELPLESS, DESPITE THE RESORT BY SOME OF THEM TO
EXTREME MEASURES SUCH AS MAKING IT LEGAL TO HUNT DOWN AND SHOOT ANY
DISGUISED MAN.  (FN17) 

WITHIN THE CONGRESS PRESSURES MOUNTED IN THE PERIOD BETWEEN THE END
OF THE WAR AND 1870 FOR DRASTIC MEASURES.  A FEW MONTHS AFTER THE
RATIFICATION OF THE THIRTEENTH AMENDMENT ON DECEMBER 6, 1865, CONGRESS,
ON APRIL 9, 1866, ENACTED THE CIVIL RIGHTS ACT OF 1866, WHICH, AS WE
HAVE DESCRIBED, INCLUDED SEC 242 IN ITS ORIGINALLY NARROW FORM.  ON
JUNE 13, 1866, THE FOURTEENTH AMENDMENT WAS PROPOSED, AND IT WAS
RATIFIED IN JULY 1868.  IN FEBRUARY 1869 THE FIFTEENTH AMENDMENT WAS
PROPOSED, AND IT WAS RATIFIED IN FEBRUARY 1870.  ON MAY 31, 1870, THE
ENFORCEMENT ACT OF 1870 WAS ENACTED. 

IN THIS CONTEXT, IT IS HARDLY CONCEIVABLE THAT CONGRESS INTENDED SEC
241 TO APPLY ONLY TO A NARROW AND RELATIVELY UNIMPORTANT CATEGORY OF
RIGHTS.  (FN18)  WE CANNOT DOUBT THAT THE PURPOSE AND EFFECT OF SEC 241
WAS TO REACH ASSAULTS UPON RIGHTS UNDER THE ENTIRE CONSTITUTION,
INCLUDING THE THIRTEENTH, FOURTEENTH AND FIFTEENTH AMENDMENTS, AND NOT
MERELY UNDER PART OF IT. 

THIS IS FULLY ATTESTED BY THE ONLY STATEMENT EXPLANATORY OF SEC 241
IN THE RECORDED CONGRESSIONAL PROCEEDINGS RELATIVE TO ITS ENACTMENT. 
WE REFER TO THE SPEECH OF SENATOR POOL OF NORTH CAROLINA WHO INTRODUCED
THE PROVISIONS AS AN AMENDMENT TO THE ENFORCEMENT ACT OF 1870.  THE
SENATOR'S REMARKS ARE PRINTED IN FULL IN THE APPENDIX TO THIS OPINION. 
(FN19)  HE URGED THAT THE SECTION WAS NEEDED IN ORDER TO PUNISH
INVASIONS OF THE NEWLY ADOPTED FOURTEENTH AND FIFTEENTH AMENDMENTS TO
THE CONSTITUTION.  HE ACKNOWLEDGED THAT THE STATES AS SUCH WERE BEYOND
THE REACH OF THE PUNITIVE PROCESS, AND THAT THE LEGISLATION MUST
THEREFORE OPERATE UPON INDIVIDUALS.  HE MADE IT CLEAR THAT "IT MATTERS
NOT WHETHER THOSE INDIVIDUALS BE OFFICERS OR WHETHER THEY ARE ACTING
UPON THEIR OWN RESPONSIBILITY."  WE FIND NO EVIDENCE WHATEVER THAT
SENATOR POOL INTENDED THAT SEC 241 SHOULD NOT COVER VIOLATIONS OF
FOURTEENTH AMENDMENT RIGHTS, OR THAT IT SHOULD NOT INCLUDE STATE ACTION
OR ACTIONS BY STATE OFFICIALS. 

WE CONCLUDE, THEREFORE, THAT IT IS INCUMBENT UPON US TO READ SEC 241
WITH FULL CREDIT TO ITS LANGUAGE.  NOTHING IN THE PRIOR DECISIONS OF
THIS COURT OR OF OTHER COURTS WHICH HAVE CONSIDERED THE MATTER STANDS
IN THE WAY OF THAT CONCLUSION.  (FN20) 

THE PRESENT APPLICATION OF THE STATUTES AT ISSUE DOES NOT RAISE
FUNDAMENTAL QUESTIONS OF FEDERAL-STATE RELATIONSHIPS.  WE ARE HERE
CONCERNED WITH ALLEGATIONS WHICH SQUARELY AND INDISPUTABLY INVOLVE
STATE ACTION IN DIRECT VIOLATION OF THE MANDATE OF THE FOURTEENTH
AMENDMENT - THAT NO STATE SHALL DEPRIVE ANY PERSON OF LIFE OR LIBERTY
WITHOUT DUE PROCESS OF LAW.  THIS IS A DIRECT, TRADITIONAL CONCERN OF
THE FEDERAL GOVERNMENT.  IT IS AN AREA IN WHICH THE FEDERAL INTEREST
HAS EXISTED FOR AT LEAST A CENTURY, AND IN WHICH FEDERAL PARTICIPATION
HAS INTENSIFIED AS PART OF A RENEWED EMPHASIS UPON CIVIL RIGHTS.  EVEN
AS RECENTLY AS 1951, WHEN WILLIAMS I WAS DECIDED, THE FEDERAL ROLE IN
THE ESTABLISHMENT AND VINDICATION OF FUNDAMENTAL RIGHTS - SUCH AS THE
FREEDOM TO TRAVEL, NONDISCRIMINATORY ACCESS TO PUBLIC AREAS AND
NONDISCRIMINATORY EDUCATIONAL FACILITIES - WAS NEITHER AS PERVASIVE NOR
AS INTENSE AS IT IS TODAY.  TODAY, A DECISION INTERPRETING A FEDERAL
LAW IN ACCORDANCE WITH ITS HISTORICAL DESIGN, TO PUNISH DENIALS BY
STATE ACTION OF CONSTITUTIONAL RIGHTS OF THE PERSON CAN HARDLY BE
REGARDED AS ADVERSELY AFFECTING "THE WISE ADJUSTMENT BETWEEN STATE
RESPONSIBILITY AND NATIONAL CONTROL  ...  ."  WILLIAMS I, 341 U.S., AT
73 (OPINION OF FRANKFURTER, J.).  IN ANY EVENT, THE PROBLEM, BEING
STATUTORY AND NOT CONSTITUTIONAL, IS ULTIMATELY, AS IT WAS IN THE
BEGINNING, SUSCEPTIBLE OF CONGRESSIONAL DISPOSITION.  REVERSED AND
REMANDED.    FN1  ONE OF THE DEFENDANTS CHARGED IN THE TWO INDICTMENTS,
JAMES E. JORDAN, IS NOT A PARTY TO THE PRESENT APPEAL.  HIS CASE WAS
TRANSFERRED UNDER RULE 20, FED. RULES CRIM.  PROC., TO THE UNITED
STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA. 

FN2  CF. MR. JUSTICE HOLMES IN UNITED STATES V. MOSLEY, 238 U.S. 383,
386 (A FEDERAL VOTING RIGHTS CASE UNDER AN EARLIER VERSION OF SEC 241):
"IT IS NOT OPEN TO QUESTION THAT THIS STATUTE IS CONSTITUTIONAL  ...
."  THE SOURCE OF CONGRESSIONAL POWER IN THIS CASE IS, OF COURSE, SEC 5
OF THE FOURTEENTH AMENDMENT, WHICH READS:  "THE CONGRESS SHALL HAVE
POWER TO ENFORCE, BY APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS
ARTICLE." 

THERE ARE THREE "WILLIAMS" CASES ARISING FROM THE SAME EVENTS.  THE
FIRST, WITH NO BEARING ON THE PRESENT APPEAL IS UNITED STATES V.
WILLIAMS, 341 U.S. 58, INVOLVING A PROSECUTION FOR PERJURY.  THE
SECOND, UNITED STATES V. WILLIAMS, 341 U.S. 70, WAS A PROSECUTION FOR
VIOLATION OF SEC 241; IT WILL BE REFERRED TO HEREINAFTER AS WILLIAMS I.
THE THIRD, WILLIAMS V. UNITED STATES, 341 U.S. 97, WAS A PROSECUTION
FOR VIOLATION OF SEC 242; IT WILL BE REFERRED TO AS WILLIAMS II. 

FN3  IN THE INTEREST OF CLARITY, WE SHALL USE THE PRESENT DESIGNATION
OF THE STATUTES THROUGHOUT THIS DISCUSSION.  REFERENCE IS MADE TO THE
APPENDIX TO MR. JUSTICE FRANKFURTER'S OPINION IN WILLIAMS I, 341 U.S.,
AT 83, WHICH CONTAINS A TABLE SHOWING MAJOR CHANGES IN THE STATUTES
THROUGH THE YEARS. 

FN4  "IF  ...  THE OFFENSE, THE COMMISSION OF WHICH IS THE OBJECT OF
THE CONSPIRACY, IS A MISDEMEANOR ONLY, THE PUNISHMENT FOR SUCH
CONSPIRACY SHALL NOT EXCEED THE MAXIMUM PUNISHMENT PROVIDED FOR SUCH
MISDEMEANOR."  28 U.S.C. SEC 371 (1964 ED.). 

FN5  THIS IS SETTLED BY OUR DECISIONS IN SCREWS V. UNITED STATES, 325
U.S. 91, 107-113, AND WILLIAMS II, 341 U.S., AT 99-100. 

FN6  "  ...  WHERE POLICE TAKE MATTERS IN THEIR OWN HANDS, SEIZE
VICTIMS, BEAT AND POUND THEM UNTIL THEY CONFESS, THERE CANNOT BE THE
SLIGHTEST DOUBT THAT THE POLICE HAVE DEPRIVED THE VICTIM OF A RIGHT
UNDER THE CONSTITUTION.  IT IS THE RIGHT OF THE ACCUSED TO BE TRIED BY
A LEGALLY CONSTITUTED COURT, NOT BY A KANGAROO COURT."  WILLIAMS II,
341 U.S., AT 101. 

FN7  "UNDER COLOR" OF LAW MEANS THE SAME THING IN SEC 242 THAT IT
DOES IN THE CIVIL COUNTERPART OF SEC 242, 42 U.S.C. SEC 1983 (1964
ED.).  MONROE V. PAPE, 365 U.S. 167, 185 (MAJORITY OPINION), 212
(FRANKFURTER, J., DISSENTING).  IN CASES UNDER SEC 1983, "UNDER COLOR"
OF LAW HAS CONSISTENTLY BEEN TREATED AS THE SAME THING AS THE "STATE
ACTION" REQUIRED UNDER THE FOURTEENTH AMENDMENT.  SEE, E.G., SMITH V.
ALLWRIGHT, 321 U.S. 649; TERRY V. ADAMS, 345 U.S. 461; SIMKINS V. MOSES
H. CONE MEMORIAL HOSPITAL, 323 F.2D 959 (C.A. 4TH CIR.), CERT. DENIED,
376 U.S. 938; SMITH V. HOLIDAY INNS, 336 F.2D 630 (C.A. 6TH CIR.);
HAMPTON V. CITY OF JACKSONVILLE, 304 F.2D 320 (C.A. 5TH CIR.), CERT.
DENIED, 371 U.S. 911; BOMAN V. BIRMINGHAM TRANSIT CO., 280 F.2D 531
(C.A. 5TH CIR.); KERR V. ENOCH PRATT FREE LIBRARY, 149 F.2D 212 (C.A.
4TH CIR.), CERT. DENIED, 326 U.S. 721. 

THE CONTRARY VIEW IN A SEC 242 CONTEXT WAS EXPRESSED BY THE
DISSENTERS IN SCREWS, 325 U.S., AT 147-149, AND WAS REJECTED THEN,
LATER IN WILLIAMS II, AND FINALLY - IN A SEC 1983 CASE - IN MONROE V.
PAPE, SUPRA.  CF. PETERSON V. CITY OF GREENVILLE, 373 U.S. 244, 250
(SEPARATE OPINION OF HARLAN, J.).  RECENT DECISIONS OF THIS COURT WHICH
HAVE GIVEN FORM TO THE "STATE ACTION" DOCTRINE MAKE IT CLEAR THAT THE
INDICTMENTS IN THIS CASE ALLEGE CONDUCT ON THE PART OF THE "PRIVATE"
DEFENDANTS WHICH CONSTITUTES "STATE ACTION," AND HENCE ACTION "UNDER
COLOR" OF LAW WITHIN SEC 242.  IN BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715, WE HELD THAT THERE IS "STATE ACTION" WHENEVER
THE "STATE HAS SO FAR INSINUATED ITSELF INTO A POSITION OF
INTERDEPENDENCE WITH THE OTHERWISE 'PRIVATE' PERSON WHOSE CONDUCT IS
SAID TO VIOLATE THE FOURTEENTH AMENDMENT  ...  THAT IT MUST BE
RECOGNIZED AS A JOINT PARTICIPANT IN THE CHALLENGED ACTIVITY, WHICH, ON
THAT ACCOUNT, CANNOT BE CONSIDERED TO HAVE BEEN SO 'PURELY PRIVATE' AS
TO FALL WITHOUT THE SCOPE OF THE FOURTEENTH AMENDMENT."  365 U.S., AT
725.  CF. PENNSYLVANIA V. BOARD OF TRUSTS, 353 U.S. 230; EVANS V.
NEWTON, 382 U.S. 296; PETERSON V. CITY OF GREENVILLE, 373 U.S. 244;
LOMBARD V. LOUISIANA, 373 U.S. 267; ROBINSON V. FLORIDA, 378 U.S. 153;
GRIFFIN V. MARYLAND, 378 U.S. 130; AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382, 401; PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S.
451; SMITH V. ALLWRIGHT, 321 U.S. 649; TERRY V. ADAMS, 345 U.S. 461;
WILLIAMS II, 341 U.S., AT 99-100. 

FN8  SEE ALSO MR. JUSTICE RUTLEDGE, CONCURRING IN RESULT, IN SCREWS
V. UNITED STATES, 325 U.S. 91, 120. 

FN9  IT WOULD BE STRANGE, INDEED, WERE THIS COURT TO REVERT TO A
CONSTRUCTION OF THE FOURTEENTH AMENDMENT WHICH WOULD ONCE AGAIN NARROW
ITS HISTORICAL PURPOSE - WHICH REMAINS VITAL AND PERTINENT TO TODAY'S
PROBLEMS.  AS IS WELL KNOWN, FOR MANY YEARS AFTER RECONSTRUCTION, THE
FOURTEENTH AMENDMENT WAS ALMOST A DEAD LETTER AS FAR AS THE CIVIL
RIGHTS OF NEGROES WERE CONCERNED.  ITS SOLE OFFICE WAS TO IMPEDE STATE
REGULATION OF RAILROADS OR OTHER CORPORATIONS.  DESPITE SUBSEQUENT
STATEMENTS TO THE CONTRARY, NOTHING IN THE RECORDS OF THE CONGRESSIONAL
DEBATES OR THE JOINT COMMITTEE ON RECONSTRUCTION INDICATES ANY
UNCERTAINTY THAT ITS OBJECTIVE WAS THE PROTECTION OF CIVIL RIGHTS.  SEE
STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877, 136-137 (1965). 

FN10  THE OFFICIAL TITLE IS "AN ACT TO ENFORCE THE RIGHT OF CITIZENS
OF THE UNITED STATES TO VOTE IN THE SEVERAL STATES OF THIS UNION, AND
FOR OTHER PURPOSES." 

FN11  THE SUBSTANTIAL DIFFERENCE IN COVERAGE OF THE TWO SECTIONS AS
THEY WERE IN THE ACT OF 1870 PRECLUDES THE ARGUMENT THAT SEC 241 SHOULD
BE NARROWLY CONSTRUED TO EXCLUDE FOURTEENTH AMENDMENT RIGHTS BECAUSE
OTHERWISE IT WOULD HAVE BEEN DUPLICATIVE OF SEC 242 TAKEN IN
CONJUNCTION WITH THE GENERAL CONSPIRACY STATUTE, 18 U.S.C. SEC 371. 
IF, AS WE HOLD, SEC 241 WAS INTENDED TO COVER ALL FOURTEENTH AMENDMENT
RIGHTS, IT WAS FAR BROADER IN 1870 THAN WAS SEC 242.  FOR OTHER REASONS
FOR REJECTING THE DUPLICATION ARGUMENT, SEE THE OPINION OF MR. JUSTICE
DOUGLAS IN WILLIAMS I, 341 U.S., AT 88, N. 2. 

FN12  SEE 14 STAT. 74; 17 STAT. 579; S. MISC. DOC. NO. 101, 40TH
CONG., 2D SESS.; H. MISC. DOC. NO. 31, 40TH CONG., 3D SESS.; S. MISC.
DOC. NO. 3, 42D CONG., 2D SESS.; 2 CONG.  REC. 646, 648, 1029, 1210,
1461. 

FN13  THE OPINION OF MR. JUSTICE DOUGLAS IN WILLIAMS I, 341 U.S., AT
88, DISPOSES OF THE ARGUMENT THAT THE WORDS OF SEC 241 THEMSELVES
SUGGEST THE NARROW MEANING WHICH THE OPINION OF MR. JUSTICE FRANKFURTER
FOUND IN THE SECTION. 

FN14  SEE GENERALLY, STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877
(1965); NEVINS, THE EMERGENCE OF MODERN AMERICA, 1865-1878 (1927). 

FN15  SEE H.R. REP. NO. 16, 39TH CONG., 2D SESS., P. 12 ET SEQ. 

FN16  CF. NEVINS, OP. CIT. SUPRA, AT 351. 

FN17  SEE, ID., AT 352; MORISON, OXFORD HISTORY OF THE AMERICAN
PEOPLE 722-723 (1965). 

FN18  SEE, FOR EXAMPLE, UNITED STATES V. WADDELL, 112 U.S. 76 (RIGHT
TO PERFECT A HOMESTEAD CLAIM); UNITED STATES V. CLASSIC, 313 U.S. 299
(RIGHT TO VOTE IN FEDERAL ELECTIONS); LOGAN V. UNITED STATES, 144 U.S.
263 (RIGHT TO BE SECURE FROM UNAUTHORIZED VIOLENCE WHILE IN FEDERAL
CUSTODY); IN RE QUARLES, 158 U.S. 532 (RIGHT TO INFORM OF VIOLATIONS OF
FEDERAL LAW).  CF. ALSO UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 552;
HAGUE V. CIO, 307 U.S. 496, 512-513 (OPINION OF ROBERTS, J.); COLLINS
V. HARDYMAN, 341 U.S. 651, 660. 

FN19  WE INCLUDE THESE REMARKS ONLY TO SHOW THAT THE SENATOR CLEARLY
INTENDED SEC 241 TO COVER FOURTEENTH AMENDMENT RIGHTS. 

FN20  THIS COURT HAS REJECTED THE ARGUMENT THAT THE CONSTITUTIONALITY
OF SEC 241 MAY BE AFFECTED BY UNDUE VAGUENESS OF COVERAGE.  THE COURT
HELD WITH REFERENCE TO SEC 242 THAT ANY DEFICIENCY IS CURED BY THE
REQUIREMENT THAT SPECIFIC INTENT BE PROVED.  SCREWS V. UNITED STATES,
325 U.S. 91.  THERE IS NO BASIS FOR DISTINCTION BETWEEN THE TWO
STATUTES IN THIS RESPECT.  SEE WILLIAMS I, 341 U.S., AT 93-95 (DOUGLAS,
J.). 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND OPINION OF THE COURT
EXCEPT INSOFAR AS THE OPINION RELIES UPON UNITED STATES V. WILLIAMS,
341 U.S. 58; UNITED STATES V. WILLIAMS, 341 U.S. 70; AND WILLIAMS V.
UNITED STATES, 341 U.S. 97. 

                        APPENDIX TO OPINION OF THE COURT. 

REMARKS OF SENATOR POOL OF NORTH CAROLINA ON SPONSORING SECTIONS 5, 6
AND 7 OF THE ENFORCEMENT ACT OF 1870 (CONG. GLOBE, 41ST CONG., 2D
SESS., PP. 3611-3613): 

MR. POOL.  MR. PRESIDENT, THE QUESTION INVOLVED IN THE PROPOSITION
NOW BEFORE THE SENATE IS ONE IN WHICH MY SECTION OF THE UNION IS
PARTICULARLY INTERESTED; ALTHOUGH SINCE THE RATIFICATION OF THE
FIFTEENTH AMENDMENT, WHICH WE ARE NOW ABOUT TO ENFORCE BY APPROPRIATE
LEGISLATION, OTHER SECTIONS OF THE COUNTRY HAVE BECOME MORE OR LESS
INTERESTED IN THE SAME QUESTION.  IT IS ENTERING UPON A NEW PHASE OF
RECONSTRUCTION; THAT IS, TO ENFORCE BY APPROPRIATE LEGISLATION THOSE
GREAT PRINCIPLES UPON WHICH THE RECONSTRUCTION POLICY OF CONGRESS WAS
BASED. 

I SAID UPON A FORMER OCCASION ON THIS FLOOR THAT THE RECONSTRUCTION
POLICY OF CONGRESS HAD BEEN PROGRESSIVE, AND THAT IT WAS NECESSARY THAT
IT SHOULD BE PROGRESSIVE STILL.  THE MERE ACT OF ESTABLISHING
GOVERNMENTS IN THE RECENTLY INSURGENT STATES WAS ONE THING; THE GREAT
PRINCIPLES UPON WHICH CONGRESS PROPOSED TO PROCEED IN ESTABLISHING
THOSE GOVERNMENTS WAS QUITE ANOTHER THING, INVOLVING PRINCIPLES WHICH
LIE AT THE VERY FOUNDATION OF ALL THAT HAS BEEN DONE, AND WHICH ARE
INTIMATELY CONNECTED WITH ALL THE RESULTS THAT MUST FOLLOW FROM THAT
AND FROM THE LEGISLATION OF CONGRESS CONNECTED WITH THE WHOLE SUBJECT. 

MR. PRESIDENT, THE FIRST THING THAT WAS DONE WAS THE PASSAGE OF THE
THIRTEENTH AMENDMENT, BY WHICH SLAVERY IN THE UNITED STATES WAS
ABOLISHED.  BY THAT FOUR MILLIONS OF PEOPLE WERE TAKEN OUT FROM UNDER
THE PROTECTING HAND OF INTERESTED MASTERS AND TURNED LOOSE TO TAKE CARE
OF THEMSELVES.  THEY WERE TURNED LOOSE AND PUT UPON THEIR OWN RESOURCES
IN COMMUNITIES WHICH WERE IMBUED WITH PREJUDICES AGAINST THEM AS A
RACE, COMMUNITIES WHICH FOR THE MOST PART HAD FOR YEARS PAST - INDEED
FROM THE VERY TIME WHEN THOSE WHO ARE NOW IN EXISTENCE WERE BORN - BEEN
TAUGHT AND HAD INSTILLED INTO THEM A PREJUDICE AGAINST THE EQUALITY
WHICH HAS BEEN ATTEMPTED TO BE ESTABLISHED FOR THE COLORED CITIZENS OF
THE UNITED STATES. 

MR. PRESIDENT, THE CONDITION WHICH THAT THIRTEENTH AMENDMENT IMPOSED
ON THE LATE INSURRECTIONARY STATES WAS ONE WHICH DEMANDED THE SERIOUS
CONSIDERATION AND ATTENTION OF THIS GOVERNMENT.  THE EQUALITY WHICH BY
THE THIRTEENTH, FOURTEENTH AND FIFTEENTH AMENDMENTS HAS BEEN ATTEMPTED
TO BE SECURED FOR THE COLORED MEN, HAS NOT ONLY SUBJECTED THEM TO THE
OPERATION OF THE PREJUDICES WHICH HAD THERETOFORE EXISTED, BUT IT HAS
RAISED AGAINST THEM STILL STRONGER PREJUDICES AND STRONGER FEELINGS IN
ORDER TO FIGHT DOWN THE EQUALITY BY WHICH IT IS CLAIMED THEY ARE TO
CONTROL THE LEGISLATION OF THAT SECTION OF THE COUNTRY.  THEY WERE
TURNED LOOSE AMONG THOSE PEOPLE, WEAK, IGNORANT, AND POOR.  THOSE AMONG
THE WHITE CITIZENS THERE WHO HAVE SOUGHT TO MAINTAIN THE RIGHTS WHICH
YOU HAVE THROWN UPON THAT CLASS OF PEOPLE, HAVE TO ENDURE EVERY SPECIES
OF PROSCRIPTION, OF OPPOSITION, AND OF VITUPERATION IN ORDER TO CARRY
OUT THE POLICY OF CONGRESS, IN ORDER TO LIFT UP AND TO UPHOLD THE
RIGHTS WHICH YOU HAVE CONFERRED UPON THAT CLASS.  IT IS FOR THAT REASON
NOT ONLY NECESSARY FOR THE FREEDMEN, BUT IT IS NECESSARY FOR THE WHITE
PEOPLE OF THAT SECTION THAT THERE SHOULD BE STRINGENT AND EFFECTIVE
LEGISLATION ON THE PART OF CONGRESS IN REGARD TO THESE MEASURES OF
RECONSTRUCTION. 

WE HAVE HEARD ON FORMER OCCASIONS ON THE FLOOR OF THE SENATE THAT
THERE WERE ORGANIZATIONS WHICH COMMITTED OUTRAGES, WHICH WENT THROUGH
COMMUNITIES FOR THE PURPOSES, OF INTIMIDATING AND COERCING CLASSES OF
CITIZENS IN THE EXERCISE OF THEIR RIGHTS.  WE HAVE BEEN TOLD HERE THAT
PERHAPS IT MIGHT BE WELL THAT RETALIATION SHOULD BE RESORTED TO ON THE
PART OF THOSE WHO ARE OPPRESSED.  SIR, THE TIME WILL COME WHEN
RETALIATION WILL BE RESORTED TO UNLESS THE GOVERNMENT OF THE UNITED
STATES INTERPOSES TO COMMAND AND TO MAINTAIN THE PEACE; WHEN THERE WILL
BE RETALIATION AND CIVIL WAR; WHEN THERE WILL BE BLOODSHED AND TUMULT
IN VARIOUS COMMUNITIES AND SECTIONS.  IT IS NOT ONLY NECESSARY FOR THE
FREEDMEN, BUT IT IS IMPORTANT TO THE WHITE PEOPLE OF THE SOUTHERN
INTERPOSE AND PRESERVE THE PEACE AND QUIET OF THE COMMUNITY. 

THE FIFTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
PROVIDES THAT 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.  IT SPEAKS
OF "THE RIGHT OF CITIZENS TO VOTE."  IT HAS BEEN SAID THAT VOTING IS A
PRIVILEGE; BUT THIS AMENDMENT RECOGNIZES IT AS A RIGHT IN THE CITIZEN;
AND THIS RIGHT IS NOT TO "BE DENIED OR ABRIDGED BY THE UNITED STATES,
OR BY ANY STATE."  WHAT ARE WE TO UNDERSTAND BY THAT?  CAN INDIVIDUALS
ABRIDGE IT WITH IMPUNITY?  IS THERE NO POWER IN THIS GOVERNMENT TO
PREVENT INDIVIDUALS OR ASSOCIATIONS OF INDIVIDUALS FROM ABRIDGING OR
CONTRAVENING THAT PROVISION OF THE CONSTITUTION?  IF THAT BE SO,
LEGISLATION IS UNNECESSARY.  IF OUR LEGISLATION IS TO APPLY ONLY TO THE
STATES, IT IS PERFECTLY CLEAR THAT IT IS TOTALLY UNNECESSARY, INASMUCH
AS WE CANNOT PASS A CRIMINAL LAW AS APPLICABLE TO A STATE; NOR CAN WE
INDICT A STATE OFFICER AS AN OFFICER.  IT MUST APPLY TO INDIVIDUALS.  A
STATE MIGHT ATTEMPT TO CONTRAVENE THAT PROVISION OF THE CONSTITUTION BY
PASSING SOME POSITIVE ENACTMENT BY WHICH IT WOULD BE CONTRAVENED, BUT
THE SUPREME COURT WOULD HOLD SUCH ENACTMENT TO BE UNCONSTITUTIONAL, AND
IN THAT WAY THE STATE WOULD BE RESTRAINED.  BUT THE WORD "DENY" IS
USED.  THERE ARE VARIOUS WAYS IN WHICH A STATE MAY PREVENT THE FULL
OPERATION OF THIS CONSTITUTIONAL AMENDMENT.  IT CANNOT - BECAUSE THE
COURTS WOULD PREVENT IT - BY POSITIVE LEGISLATION, BUT BY ACTS OF
OMISSION IT MAY PRACTICALLY DENY THE RIGHT.  THE LEGISLATION OF
CONGRESS MUST BE TO SUPPLY ACTS OF OMISSION ON THE PART OF THE STATES. 
IF A STATE SHALL NOT ENFORCE ITS LAWS BY WHICH PRIVATE INDIVIDUALS
SHALL BE PREVENTED BY FORCE FROM CONTRAVENING THE RIGHTS OF THE CITIZEN
UNDER THE AMENDMENT, IT IS IN MY JUDGMENT THE DUTY OF THE UNITED STATES
GOVERNMENT TO SUPPLY THAT OMISSION, AND BY ITS OWN LAWS AND BY ITS OWN
COURTS TO GO INTO THE STATES FOR THE PURPOSE OF GIVING THE AMENDMENT
VITALITY THERE. 

THE WORD "DENY" IS USED NOT ONLY IN THIS FIFTEENTH AMENDMENT, BUT I
PERCEIVE IN THE FOURTEENTH AMENDMENT IT IS ALSO USED.  WHEN THE
FOURTEENTH AMENDMENT WAS PASSED THERE WAS IN EXISTENCE WHAT IS KNOWN AS
THE CIVIL RIGHTS BILL, A PART OF WHICH HAS BEEN COPIED IN THE SENATE
BILL NOW PENDING.  THE CIVIL RIGHTS BILL RECOGNIZED ALL PERSONS BORN OR
NATURALIZED IN THE UNITED STATES AS CITIZENS, AND PROVIDED THAT THEY
SHOULD HAVE CERTAIN RIGHTS WHICH WERE ENUMERATED.  THEY ARE, "TO MAKE
AND ENFORCE CONTRACTS, TO SUE, BE MADE PARTIES, GIVE EVIDENCE, TO
INHERIT, PURCHASE, LEASE, SELL, HOLD AND CONVEY REAL AND PERSONAL
PROPERTY," AND TO "THE FULL AND EQUAL BENEFIT OF ALL LAWS AND
PROCEEDINGS FOR THE SECURITY OF PERSON AND PROPERTY." 

THE CIVIL RIGHTS BILL WAS TO BE ENFORCED BY MAKING IT CRIMINAL FOR
ANY OFFICER, UNDER COLOR OF ANY STATE LAW, "TO SUBJECT, OR CAUSE TO BE
SUBJECTED, ANY CITIZEN TO THE DEPRIVATION OF ANY OF THE RIGHTS SECURED
AND PROTECTED" BY THE ACT.  IF AN OFFICER OF ANY STATE WERE INDICTED
FOR SUBJECTING A CITIZEN TO THE DEPRIVATION OF ANY OF THOSE RIGHTS HE
WAS NOT TO BE INDICTED AS AN OFFICER; IT WAS AS AN INDIVIDUAL.  AND SO,
UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION, "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."  THERE THE WORD "DENY" IS USED AGAIN; IT IS
USED IN CONTRADISTINCTION TO THE FIRST CLAUSE, WHICH SAYS, "NO STATE
SHALL MAKE OR ENFORCE ANY LAW" WHICH SHALL DO SO AND SO.  THAT WOULD BE
A POSITIVE ACT WHICH WOULD CONTRAVENE THE RIGHT OF A CITIZEN; BUT TO
SAY THAT IT SHALL NOT DENY TO ANY PERSON THE EQUAL PROTECTION OF THE
LAW IT SEEMS TO ME OPENS UP A DIFFERENT BRANCH OF THE SUBJECT.  IT
SHALL NOT DENY BY ACTS OF OMISSION, BY A FAILURE TO PREVENT ITS OWN
CITIZENS FROM DEPRIVING BY FORCE ANY OF THEIR FELLOW-CITIZENS OF THESE
RIGHTS.  IT IS ONLY WHEN A STATE OMITS TO CARRY INTO EFFECT THE
PROVISIONS OF THE CIVIL RIGHTS ACT, AND TO SECURE THE CITIZENS IN THEIR
RIGHTS, THAT THE PROVISIONS OF THE FIFTH SECTION OF THE FOURTEENTH
AMENDMENT WOULD BE CALLED INTO OPERATION, WHICH IS, "THAT CONGRESS
SHALL ENFORCE BY APPROPRIATE LEGISLATION THE PROVISIONS OF THIS
ARTICLE." 

THERE IS NO LEGISLATION THAT COULD REACH A STATE TO PREVENT ITS
PASSING A LAW.  IT CAN ONLY REACH THE INDIVIDUAL CITIZENS OF THE STATE
IN THE ENFORCEMENT OF LAW.  YOU HAVE, THEREFORE, IN ANY APPROPRIATE
LEGISLATION, TO ACT ON THE CITIZEN, NOT ON THE STATE.  IF YOU PASS AN
ACT BY WHICH YOU MAKE IT AN INDICTABLE OFFENSE FOR AN OFFICER TO
EXECUTE ANY LAW OF A STATE BY WHICH HE TRESPASSES UPON ANY OF THESE
RIGHTS OF THE CITIZEN IT OPERATES UPON HIM AS A CITIZEN, AND NOT AS AN
OFFICER.  WHY CAN YOU NOT JUST AS WELL EXTEND IT TO ANY OTHER CITIZEN
OF THE COUNTRY? 

IT IS, IN MY JUDGMENT, INCUMBENT UPON CONGRESS TO PASS THE MOST
STRINGENT LEGISLATION ON THIS SUBJECT.  I BELIEVE THAT WE HAVE A
PERFECT RIGHT UNDER THE CONSTITUTION OF THE UNITED STATES, NOT ONLY
UNDER THESE THREE AMENDMENTS, BUT UNDER THE GENERAL SCOPE AND FEATURES
AND SPIRIT OF THE CONSTITUTION ITSELF, TO GO INTO ANY OF THESE STATES
FOR THE PURPOSE OF PROTECTING AND SECURING LIBERTY.  I ADMIT THAT WHEN
YOU GO THERE FOR THE PURPOSE OF RESTRAINING LIBERTY, YOU CAN GO ONLY
UNDER DELEGATED POWERS IN EXPRESS TERMS; BUT TO GO INTO THE STATES FOR
THE PURPOSE OF SECURING AND PROTECTING THE LIBERTY OF THE CITIZEN AND
THE RIGHTS AND IMMUNITIES OF AMERICAN CITIZENSHIP IS IN ACCORDANCE WITH
THE SPIRIT AND WHOLE OBJECT OF THE FORMATION OF THE UNION AND THE
NATIONAL GOVERNMENT. 

THERE ARE, MR. PRESIDENT, VARIOUS WAYS IN WHICH THE RIGHT SECURED BY
THE FIFTEENTH AMENDMENT MAY BE ABRIDGED BY CITIZENS IN A STATE.  IF A
STATE SHOULD UNDERTAKE BY POSITIVE ENACTMENT, AS I HAVE SAID, TO
ABRIDGE THE RIGHT OF SUFFRAGE, THE COURTS OF THE COUNTRY WOULD PREVENT
IT; AND I FIND THAT IN SECTION TWO OF THE BILL WHICH HAS BEEN PROPOSED
AS A SUBSTITUTE BY THE JUDICIARY COMMITTEE OF THE SENATE PROVISION IS
MADE FOR CASES WHERE OFFICERS CHARGED WITH REGISTRATION OR OFFICERS
CHARGED WITH THE ASSESSMENT OF TAXES AND WITH MAKING THE PROPER ENTRIES
IN CONNECTION THEREWITH, SHALL REFUSE THE RIGHT TO REGISTER OR TO PAY
TAXES TO A CITIZEN.  I BELIEVE THE LANGUAGE OF THE SENATE BILL IS
SUFFICIENTLY LARGE AND COMPREHENSIVE TO EMBRACE ANY OTHER CLASS OF
OFFICERS THAT MIGHT BE CHARGED WITH ANY ACT THAT WAS NECESSARY TO
ENABLE A CITIZEN TO PERFORM ANY PREREQUISITE TO VOTING.  BUT, SIR,
INDIVIDUALS MAY PREVENT THE EXERCISE OF THE RIGHT OF SUFFRAGE;
INDIVIDUALS MAY PREVENT THE ENJOYMENT OF OTHER RIGHTS WHICH ARE
CONFERRED UPON THE CITIZEN BY THE FOURTEENTH AMENDMENT, AS WELL AS
TRESPASS UPON THE RIGHT CONFERRED BY THE FIFTEENTH.  NOT ONLY CITIZENS,
BUT ORGANIZATIONS OF CITIZENS, CONSPIRACIES, MAY BE AND ARE, AS WE ARE
TOLD, IN SOME OF THE STATES FORMED FOR THAT PURPOSE.  I SEE IN THE
FOURTH SECTION OF THE SENATE BILL A PROVISION FOR CASES WHERE CITIZENS
BY THREATS, INTIMIDATION, BRIBERY, OR OTHERWISE PREVENT, DELAY, OR
HINDER THE EXERCISE OF THIS RIGHT; BUT THERE IS NOTHING HERE THAT
STRIKES AT ORGANIZATIONS OF INDIVIDUALS, AT CONSPIRACIES FOR THAT
PURPOSE.  I BELIEVE THAT ANY BILL WILL BE DEFECTIVE WHICH DOES NOT MAKE
IT A HIGHLY PENAL OFFENSE FOR MEN TO CONSPIRE TOGETHER, TO ORGANIZE
THEMSELVES INTO BODIES, FOR THE EXPRESS PURPOSE OF CONTRAVENING THE
RIGHT CONFERRED BY THE FIFTEENTH AMENDMENT. 

BUT, SIR, THERE IS A GREAT, IMPORTANT OMISSION IN THIS BILL AS WELL
AS IN THAT OF THE HOUSE.  IT SEEMS NOT TO HAVE STRUCK THOSE WHO DREW
EITHER OF THE TWO BILLS THAT THE PREVENTION OF THE EXERCISE OF THE
RIGHT OF SUFFRAGE WAS NOT THE ONLY OR THE MAIN TROUBLE THAT WE HAVE
UPON OUR HANDS.  SUPPOSE THERE SHALL BE AN ORGANIZATION OF INDIVIDUALS,
OR, IF YOU PLEASE, A SINGLE INDIVIDUAL, WHO SHALL TAKE IT UPON HIMSELF
TO COMPEL HIS FELLOW CITIZENS TO VOTE IN A PARTICULAR WAY.  SUPPOSE HE
THREATENS TO DISCHARGE THEM FROM EMPLOYMENT, TO BRING UPON THEM THE
OUTRAGES WHICH ARE BEING PERPETRATED BY THE KUKLUX ORGANIZATIONS, SO AS
NOT TO PREVENT THEIR VOTING, BUT TO COMPEL THEM TO VOTE IN ACCORDANCE
WITH THE DICTATES OF THE PARTY WHO BRINGS THIS COERCION UPON THEM.  IT
SEEMS TO ME IT IS NECESSARY THAT WE SHOULD LEGISLATE AGAINST THAT. 
THAT IS A MORE THREATENING VIEW OF THE SUBJECT THAN THE MERE PREVENTING
OF REGISTRATION OR OF ENTERING MEN'S NAMES UPON THE ASSESSMENT BOOKS
FOR TAXATION OR OF DEPOSITING THE BALLOT IN THE BOX.  I THINK THE BILL
CANNOT BE PERFECTED TO MEET THE EMERGENCIES OF THE OCCASION UNLESS
THERE BE A SECTION WHICH MEETS THAT VIEW OF THE CASE. 

THE SENATOR FROM INDIANA (MR. MORTON) ASKS WHETHER I HAVE DRAWN AN
AMENDMENT TO THAT EFFECT.  I HAVE, BUT I CANNOT OFFER IT AT THIS TIME,
FOR THE SIMPLE REASON THAT THERE IS AN AMENDMENT TO AN AMENDMENT
PENDING. 

MR. MORTON.  LET IT BE READ FOR INFORMATION. 

MR. POOL.  IT HAS BEEN PRINTED, AND I SEND IT TO THE DESK TO BE READ
FOR INFORMATION. 

THE CHIEF CLERK READ THE AMENDMENT INTENDED TO BE PROPOSED BY MR.
POOL, AS FOLLOWS: 

"INSERT AFTER SECTION FOUR OF THE SENATE BILL THE FOLLOWING

"SEC. 5.  AND BE IT FURTHER ENACTED, THAT IT SHALL BE UNLAWFUL FOR
ANY PERSON, WITH INTENT TO HINDER OR INFLUENCE THE EXERCISE OF THE
RIGHT OF SUFFRAGE AS AFORESAID, TO COERCE OR INTIMIDATE, OR ATTEMPT TO
COERCE OR INTIMIDATE ANY OF THE LEGALLY QUALIFIED VOTERS IN ANY STATE
OR TERRITORY.  ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION
SHALL BE HELD GUILTY OF A MISDEMEANOR, AND ON CONVICTION THEREOF SHALL
BE FINED OR IMPRISONED, OR BOTH, IN THE DISCRETION OF THE COURT:  THE
FINE NOT TO EXCEED $1,000, AND THE IMPRISONMENT NOT TO EXCEED ONE
YEAR. 

"SEC. 6.  AND BE IT FURTHER ENACTED, THAT IF TWO OR MORE PERSONS
SHALL BAND OR CONSPIRE TOGETHER, OR GO IN DISGUISE UPON THE PUBLIC
HIGHWAY, OR UPON THE PREMISES OF ANOTHER, WITH INTENT TO VIOLATE ANY
PROVISION OF THIS ACT, OR TO INJURE, OPPRESS, THREATEN, OR INTIMIDATE
ANY CITIZEN WITH INTENT TO PREVENT OR HINDER HIS FREE EXERCISE AND
ENJOYMENT OF ANY RIGHT OR PRIVILEGE GRANTED OR SECURED TO HIM BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES, SUCH PERSON SHALL BE HELD
GUILTY OF FELONY, AND ON CONVICTION THEREOF SHALL BE FINED AND
IMPRISONED; THE FINE NOT TO EXCEED $5,000 AND THE IMPRISONMENT NOT TO
EXCEED TEN YEARS; AND SHALL, MOREOVER, BE THEREAFTER INELIGIBLE TO AND
DISABLED FROM HOLDING ANY OFFICE OR PLACE OF HONOR, PROFIT, OR TRUST
CREATED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES. 

"SEC. 7.  AND BE IT FURTHER ENACTED, THAT IF IN THE ACT OF VIOLATING
ANY PROVISION IN EITHER OF THE TWO PRECEDING SECTIONS, ANY OTHER
FELONY, CRIME, OR MISDEMEANOR SHALL BE COMMITTED, THE OFFENDER MAY BE
INDICTED OR PROSECUTED FOR THE SAME IN THE COURTS OF THE UNITED STATES,
AS HEREINAFTER PROVIDED, FOR VIOLATIONS OF THIS ACT, AND ON CONVICTION
THEREOF SHALL BE PUNISHED FOR THE SAME WITH SUCH PUNISHMENTS AS ARE
ATTACHED TO LIKE FELONIES, CRIMES, AND MISDEMEANORS BY THE LAWS OF THE
STATE IN WHICH THE OFFENSE MAY BE COMMITTED. 

"STRIKE OUT SECTION TWELVE AND SUBSTITUTE THEREFOR THE FOLLOWING: 

"AND BE IT FURTHER ENACTED, THAT THE PRESIDENT OF THE UNITED STATES,
OR SUCH PERSON AS HE MAY EMPOWER FOR THAT PURPOSE, MAY EMPLOY IN ANY
STATE SUCH PART OF THE LAND AND NAVAL FORCES OF THE UNITED STATES, OR
OF THE MILITIA, AS HE MAY DEEM NECESSARY TO ENFORCE THE COMPLETE
EXECUTION OF THIS ACT; AND WITH SUCH FORCES MAY PURSUE, ARREST, AND
HOLD FOR TRIAL ALL PERSONS CHARGED WITH THE VIOLATION OF ANY OF THE
PROVISIONS OF THIS ACT, AND ENFORCE THE ATTENDANCE OF WITNESSES UPON
THE EXAMINATION OR TRIAL OF SUCH PERSONS." 

   *         *         *         *         * 

MR. POOL.  THE SENATOR FROM INDIANA ASKED IF I HAD AN AMENDMENT
PREPARED WHICH MET THE VIEW OF THE CASE I WAS PRESENTING IN REGARD TO
THE COMPELLING OF CITIZENS TO VOTE IN A PARTICULAR WAY.  THE FIRST

"THAT IT SHALL BE UNLAWFUL FOR ANY PERSON WITH INTENT TO HINDER OR
INFLUENCE THE EXERCISE OF THE RIGHT OF SUFFRAGE AS AFORESAID, TO COERCE
OR INTIMIDATE OR ATTEMPT TO COERCE OR INTIMIDATE ANY OF THE LEGALLY
QUALIFIED VOTERS IN ANY STATE OR TERRITORY." 

BUT, MR. PRESIDENT, THERE IS ANOTHER VIEW WHICH SEEMS TO HAVE BEEN
LOST SIGHT OF ENTIRELY BY THOSE WHO HAVE DRAWN BOTH THE HOUSE BILL AND
THE BILL NOW PENDING BEFORE THE SENATE, AND FROM WHICH WE APPREHEND
VERY MUCH DANGER.  IT IS THIS:  THE OPPRESSION OF CITIZENS BECAUSE OF
HAVING VOTED IN A PARTICULAR WAY, OR HAVING VOTED AT ALL.  IT MAY OFTEN
HAPPEN, AS IT HAS HAPPENED UP TO THIS TIME ALREADY, THAT UPON THE CLOSE
OF AN ELECTION COLORED PERSONS WILL BE DISCHARGED FROM EMPLOYMENT BY
THEIR EMPLOYERS.  THEY MAY BE SUBJECTED TO OUTRAGES OF VARIOUS KINDS
BECAUSE THEY HAVE PARTICIPATED IN AN ELECTION, AND CAST THEIR VOTES IN
A PARTICULAR WAY.  THAT IS NOT DONE FOR THE PURPOSE OF PUNISHMENT SO
MUCH AS FOR THE PURPOSE OF DETERRING THEM FROM VOTING IN ANY SUCCEEDING
ELECTION, OR FROM VOTING IN A WAY THAT THOSE WHO PERPETRATE THESE
OUTRAGES DO NOT DESIRE THEM TO DO.  I FIND THAT BRANCH OF THE SUBJECT
IS ENTIRELY LEFT OUT OF VIEW IN THE BILL. 

THERE IS ANOTHER FEATURE OF MY AMENDMENT WHICH I DEEM OF SOME
IMPORTANCE.  IT IS THIS: 

"THAT IF IN THE ACT OF VIOLATING ANY PROVISION IN EITHER OF THE TWO
PRECEDING SECTIONS ANY OTHER FELONY, CRIME, OR MISDEMEANOR SHALL BE
COMMITTED, THE OFFENDER MAY BE INDICTED OR PROSECUTED FOR THE SAME IN
THE COURTS OF THE UNITED STATES." 

I THINK THE MOST EFFECTIVE MODE OF PREVENTING THIS INTIMIDATION AND
THESE ATTEMPTS AT COERCION, AS WELL AS THE OUTRAGES WHICH GROW OUT OF
THESE ATTEMPTS, WOULD BE FOUND IN MAKING ANY OFFENSE COMMITTED IN THE
EFFORT TO VIOLATE THEM INDICTABLE BEFORE THE COURTS OF THE UNITED
STATES.  AS WAS SAID BEFORE, IN THE DISCUSSION OF THE GEORGIA QUESTION
IN THE SENATE, THE JURIES IN THE COMMUNITIES WHERE THESE OUTRAGES ARE
COMMITTED ARE OFTEN COMPOSED OF MEN WHO ARE ENGAGED IN THEM, OR OF
THEIR FRIENDS, OR OF THOSE WHO CONNIVE AT THEM, OR OF PERSONS WHO ARE
INTIMIDATED BY THEM, AND IN MANY INSTANCES THEY DARE NOT BRING IN A
TRUE BILL WHEN THERE IS AN ATTEMPT TO INDICT, OR IF A TRUE BILL BE
FOUND, THEY DARE NOT GO FOR CONVICTION ON THE FINAL TRIAL.  IT IS FOR
THAT REASON THAT I BELIEVE IT WILL BE BETTER, IT WILL BE THE ONLY
EFFECTIVE REMEDY, TO TAKE SUCH OFFENDERS BEFORE THE COURTS OF THE
UNITED STATES, AND THERE HAVE THEM TRIED BY A JURY WHICH IS NOT IMBUED
WITH THE PREJUDICES AND INTERESTS OF THOSE WHO PERPETRATE THE CRIMES. 
THESE ARE THE PRINCIPAL FEATURES OF THE AMENDMENT WHICH I HAVE DRAWN
IN THE EFFORT TO PERFECT THIS BILL; AND THERE IS ANOTHER ONE TO WHICH I
WILL CALL THE ATTENTION OF THE SENATE.  IT IS THAT IN REGARD TO CALLING
OUT THE MILITARY FORCES OF THE UNITED STATES.  I FIND THAT IN THE CIVIL
RIGHTS BILL, AS IN THE BILL WHICH HAS BEEN INTRODUCED BY THE SENATE
JUDICIARY COMMITTEE, THE PRESIDENT IS AUTHORIZED, EITHER BY HIMSELF OR
BY SUCH PERSON AS HE MAY EMPOWER FOR THAT PURPOSE, TO USE THE MILITARY
FORCES OF THE UNITED STATES TO ENFORCE THE ACT.  THERE IN BOTH
INSTANCES IT STOPS.  IT HAS BEEN OBJECTED TO HERE THAT THE EXPRESSION,
"OR SUCH OTHER PERSON AS HE MAY EMPOWER FOR THAT PURPOSE," SHOULD NOT
BE IN THE BILL; THAT IT MAY BE SUBJECT TO ABUSE.  I THINK IT WOULD HAVE
NO GOOD EFFECT TO KEEP THAT LANGUAGE IN.  THE PRESIDENT MAY SEND HIS
OFFICERS AND HE MAY EMPOWER WHOMSOEVER HE PLEASES TO TAKE CHARGE OF HIS
FORCES WITHOUT ANY SUCH PROVISION. 

BUT THERE IS A USE FOR THESE FORCES WHICH SEEMS NOT TO HAVE BEEN
ADVERTED TO IN EITHER THE CIVIL RIGHTS BILL OR IN THE BILL THAT IS NOW
PENDING BEFORE THE SENATE.  IT IS THE HOLDING OF THESE OFFENDERS FOR
EXAMINATION AND TRIAL AFTER THEY ARE ARRESTED.  THEIR CONFEDERATES, IF
THEY ARE PUT IN THE COMMON PRISONS OF THE STATE, WILL IN NINE CASES OUT
OF TEN RELEASE THEM.  BUT MORE IMPORTANT STILL IS IT TO USE THESE
FORCES TO COMPEL THE ATTENDANCE OF WITNESSES; FOR A SUBTERFUGE RESORTED
TO IS TO KEEP WITNESSES AWAY FROM THE TRIAL.  IN MANY INSTANCES
WITNESSES ARE MORE OR LESS IMPLICATED IN THE COMMISSION OF THE
OFFENSE.  IN OTHER CASES THE WITNESSES ARE INTIMIDATED AND CANNOT BE
OBTAINED UPON THE TRIAL.  SO IN THE AMENDMENT WHICH I HAVE PREPARED I
HAVE PROPOSED THAT THESE FORCES MAY BE USED TO ENFORCE THE ATTENDANCE
OF WITNESSES BOTH UPON THE EXAMINATION AND THE TRIAL.  MY PURPOSE IN
INTRODUCING THIS WAS TO PERFECT THE SENATE BILL.  I THINK, AS I SAID
YESTERDAY, THAT THAT BILL IS LIABLE TO LESS OBJECTION THAN THE HOUSE
BILL.  I THINK IT IS MORE EFFICACIOUS IN ITS PROVISIONS.  I THINK IT IS
BETTER THAT THE SENATE SHOULD DIRECT ITS ATTENTION TO PERFECTING THAT
BILL, IN ORDER THAT IT MAY BE MADE, WHEN PERFECTED, A SUBSTITUTE FOR
THE BILL THAT CAME FROM THE HOUSE. 

THAT MUCH BEING SAID UPON THE PURPOSE OF PERFECTING THE BILL AND
MAKING IT EFFICACIOUS, I HAVE VERY LITTLE MORE TO SAY.  I DID NOT
INTEND WHEN I ROSE TO SAY MUCH UPON THE GENERAL POWER, WHICH HAS BEEN
QUESTIONED HERE, TO PASS ANY LAW AT ALL.  I THINK IT IS BETTER TO DO
NOTHING THAN TO DO THAT WHICH WILL NOT HAVE THE PROPER EFFECT.  TO DO
THAT WHICH WILL NOT ACCOMPLISH THE PURPOSE WOULD BE WORSE THAN DOING
NOTHING AT ALL.  THAT THE UNITED STATES GOVERNMENT HAS THE RIGHT TO GO
INTO THE STATES AND ENFORCE THE FOURTEENTH AND THE FIFTEENTH AMENDMENTS
IS, IN MY JUDGMENT, PERFECTLY CLEAR, BY APPROPRIATE LEGISLATION THAT
SHALL BEAR UPON INDIVIDUALS.  I CANNOT SEE THAT IT WOULD BE POSSIBLE
FOR APPROPRIATE LEGISLATION TO BE RESORTED TO EXCEPT AS APPLICABLE TO
INDIVIDUALS WHO VIOLATE OR ATTEMPT TO VIOLATE THESE PROVISIONS. 
CERTAINLY WE CANNOT LEGISLATE HERE AGAINST STATES.  AS I SAID A FEW
MOMENTS AGO, IT IS UPON INDIVIDUALS THAT WE MUST PRESS OUR
LEGISLATION.  IT MATTERS NOT WHETHER THOSE INDIVIDUALS BE OFFICERS OR
WHETHER THEY ARE ACTING UPON THEIR OWN RESPONSIBILITY; WHETHER THEY ARE
ACTING SINGLY OR IN ORGANIZATIONS.  IF THERE IS TO BE APPROPRIATE
LEGISLATION AT ALL, IT MUST BE THAT WHICH APPLIES TO INDIVIDUALS. 

I BELIEVE THAT THE UNITED STATES HAS THE RIGHT, AND THAT IT IS AN
INCUMBENT DUTY UPON IT, TO GO INTO THE STATES TO ENFORCE THE RIGHTS OF
THE CITIZENS AGAINST ALL WHO ATTEMPT TO INFRINGE UPON THOSE RIGHTS WHEN
THEY ARE RECOGNIZED AND SECURED BY THE CONSTITUTION OF THE COUNTRY.  IF
WE DO NOT POSSESS THAT RIGHT THE DANGER TO THE LIBERTY OF THE CITIZEN
IS GREAT INDEED IN MANY PARTS OF THIS UNION.  I THINK THIS QUESTION
WILL COME TIME AND AGAIN AS YEARS PASS BY, PERHAPS BEFORE ANOTHER YEAR,
IN DIFFERENT FORMS BEFORE THE SENATE.  IT IS WELL THAT WE SHOULD DEAL
WITH IT NOW AND DEAL WITH IT SQUARELY, AND I HOPE THAT THE SENATE WILL
NOT HESITATE IN DOING SO. 

MR. PRESIDENT, THE LIBERTY OF A CITIZEN OF THE UNITED STATES, THE
PREROGATIVES, THE RIGHTS, AND THE IMMUNITIES OF AMERICAN CITIZENSHIP,
SHOULD NOT BE AND CANNOT BE SAFELY LEFT TO THE MERE CAPRICE OF STATES
EITHER IN THE PASSAGE OF LAWS OR IN THE WITHHOLDING OF THAT PROTECTION
WHICH ANY EMERGENCY MAY REQUIRE.  IF A STATE BY OMISSION NEGLECTS TO
GIVE TO EVERY CITIZEN WITHIN ITS BORDERS A FREE, FAIR, AND FULL
EXERCISE AND ENJOYMENT OF HIS RIGHTS IT IS THE DUTY OF THE UNITED
STATES GOVERNMENT TO GO INTO THE STATE, AND BY ITS STRONG ARM TO SEE
THAT HE DOES HAVE THE FULL AND FREE ENJOYMENT OF THOSE RIGHTS. 

UPON THAT GROUND THE REPUBLICAN PARTY MUST STAND IN CARRYING INTO
EFFECT THE RECONSTRUCTION POLICY, OR THE WHOLE FABRIC OF
RECONSTRUCTION, WITH ALL THE PRINCIPLES CONNECTED WITH IT, AMOUNTS TO
NOTHING AT ALL; AND IN THE END IT WILL TOPPLE AND FALL UNLESS IT CAN BE
ENFORCED BY THE APPROPRIATE LEGISLATION, THE POWER TO ENACT WHICH HAS
BEEN PROVIDED IN EACH ONE OF THE GREAT CHARTERS OF LIBERTY WHICH THAT
PARTY HAS PUT FORTH IN ITS AMENDMENTS TO THE CONSTITUTION.  UNLESS THE
RIGHT TO ENFORCE IT BY APPROPRIATE LEGISLATION IS ENFORCED STRINGENTLY
AND TO THE POINT, IT IS CLEAR TO MY MIND THAT THERE WILL BE NO EFFICACY
WHATEVER IN WHAT HAS BEEN DONE UP TO THIS TIME TO CARRY OUT AND TO
ESTABLISH THAT POLICY. 

I DID NOT RISE, SIR, FOR THE PURPOSE OF ARGUING THE QUESTION VERY
MUCH IN DETAIL.  I DID NOT RISE FOR THE PURPOSE OF MAKING ANY APPEALS
TO THE SENATE; BUT MORE FOR THE PURPOSE OF ASSERTING HERE AND ARGUING
FOR A MOMENT THE GENERAL DOCTRINE OF THE RIGHT OF THE UNITED STATES TO
INTERVENE AGAINST INDIVIDUALS IN THE STATES WHO ATTEMPT TO CONTRAVENE
THE AMENDMENT TO THE CONSTITUTION WHICH WE ARE NOW ENDEAVORING TO
ENFORCE, AND FOR THE PURPOSE OF CALLING ATTENTION TO THE DEFECTS IN THE
BILL AND OFFERING A REMEDY FOR THEM. 
..END :













CLAYTON CHEMICAL & PACKAGING CO. V. UNITED STATES 383 U.S. 821 


NO. 890.  DECIDED MARCH 28, 1966.  - CERTIORARI GRANTED; 52 C.C.P.A.
(CUST.)  111, 357 F.2D 1009, REVERSED AND REMANDED. 


THE CUSTOMS COURT HELD THAT PETITIONER WAS ENTITLED TO REAPPRAISAL OF
THE VALUE OF ITS IMPORTED PRODUCT.  THE COURT OF CUSTOMS AND PATENT
APPEALS REVERSED THE JUDGMENT FOR PETITIONER.  IT HELD THAT AFFIDAVITS
OF PETITIONER'S CUSTOMERS, ON THE BASIS OF WHICH PETITIONER SOUGHT TO
OBTAIN REAPPRAISAL, HAD BEEN IMPROPERLY ADMITTED BY THE CUSTOMS COURT,
AND THAT THERE WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT PETITIONER'S
CLAIM, THE AFFIDAVITS BEING EXCLUDED FROM CONSIDERATION.  ON PETITION
FOR REHEARING PETITIONER ASKED THE COURT OF CUSTOMS AND PATENT APPEALS
TO REMAND THE CASE TO THE CUSTOMS COURT TO ENABLE PETITIONER TO OFFER
EVIDENCE TO CURE THE DEFICIENCY CREATED BY EXCLUSION OF THE
AFFIDAVITS.  THE PETITION FOR REHEARING WAS DENIED.  HELD:  THE COURT
OF CUSTOMS AND PATENT APPEALS ERRED IN FAILING TO REMAND FOR FURTHER
PROCEEDINGS. 

CLAYTON CHEMICAL & PACKAGING CO. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
CUSTOMS AND PATENT APPEALS. 

PER CURIAM. 

PETITIONER BROUGHT A PROCEEDING BEFORE A SINGLE JUDGE OF THE CUSTOMS
COURT TO REAPPRAISE THE UNITED STATES VALUE OF A PRODUCT WHICH IT
IMPORTED.  THE APPRAISER HAD RELIED UPON THE PRICES AT WHICH PETITIONER
SOLD THE PRODUCT TO ESTABLISH ITS VALUE FOR ASSESSMENT OF IMPORT
DUTIES.  PETITIONER OFFERED IN EVIDENCE CERTAIN AFFIDAVITS TO SHOW THAT
MOST OF ITS SALES OF THE PRODUCT WERE FOR EXPERIMENTAL PURPOSES AND IN
EXPERIMENTAL QUANTITIES, AND HENCE WERE NOT RELEVANT TO SHOW "THE PRICE
AT WHICH SUCH  ...  IMPORTED MERCHANDISE IS FREELY OFFERED FOR SALE
...  IN THE PRINCIPAL MARKET OF THE UNITED STATES TO ALL PURCHASERS
...  IN THE USUAL WHOLESALE QUANTITIES AND IN THE ORDINARY COURSE OF
TRADE  ...  ."  ACT OF JUNE 17, 1930, C. 497, SEC. 402(E), 46 STAT.
708, AS AMENDED, 19 U.S.C. SEC. 1402(E) (1964 ED.).  CF. UNITED STATES
V. H. MUEHLSTEIN & CO., 42 CUST.  CT. 760 (1959). 

OVER OBJECTION OF THE UNITED STATES THAT THE AFFIDAVITS WERE NOT
ADMISSIBLE, THE JUDGE RECEIVED THEM IN EVIDENCE.  THE GROUND FOR
ADMISSION OF THE AFFIDAVITS WAS 28 U.S.C. SEC. 2633 (1964 ED.), WHICH
PROVIDES THAT IN REAPPRAISEMENT PROCEEDINGS, "AFFIDAVITS AND
DEPOSITIONS OF PERSONS WHOSE ATTENDANCE CANNOT REASONABLY BE HAD  ...
MAY BE ADMITTED IN EVIDENCE."  RELYING ON THE AFFIDAVITS, THE SINGLE
JUDGE FOUND THAT MOST OF PETITIONER'S SALES WERE FOR EXPERIMENTAL
PURPOSES.  49 CUST.  CT. 409 (1962). 

ON APPEAL BY THE UNITED STATES FROM A REAPPRAISAL FAVORABLE TO
PETITIONER, THE APPELLATE TERM OF THE SECOND DIVISION OF THE CUSTOMS
COURT HELD THAT THE UNITED STATES HAD NOT PRESERVED ITS OBJECTION TO
THE ADMISSIBILITY OF THE AFFIDAVITS.  52 CUST.  CT. 620 (1964).  THE
UNITED STATES APPEALED TO THE COURT OF CUSTOMS AND PATENT APPEALS. 
THAT COURT REVERSED THE DETERMINATION THAT THE UNITED STATES HAD NOT
PRESERVED ITS OBJECTION.  IT HELD THAT THE AFFIDAVITS WERE NOT
ADMISSIBLE BECAUSE PETITIONER HAD NOT SHOWN THAT THE ATTENDANCE OF THE
AFFIANTS COULD NOT REASONABLY BE HAD, AND AGREED WITH THE POSITION OF
THE UNITED STATES THAT "WITH EXCLUSION OF THE AFFIDAVITS THERE IS NO
SUBSTANTIAL COMPETENT EVIDENCE OF RECORD TO REBUT THE STATUTORY
PRESUMPTION THAT THE UNITED STATES VALUE OF THE IMPORTED MERCHANDISE
WAS THE VALUE FOUND BY THE APPRAISER."  52 C.C.P.A. (CUST.)  111, 120,
357 F.2D 1009, 1016 (1965).  THE JUDGMENT OF THE CUSTOMS COURT WAS
ACCORDINGLY REVERSED, JUDGES SMITH AND RICH DISSENTING.  ON PETITION
FOR REHEARING, PETITIONER CONTENDED THAT IF THE AFFIDAVITS WERE
INADMISSIBLE, IT WAS ENTITLED TO A REMAND TO THE CUSTOMS COURT TO
ENABLE IT TO FILL THE EVIDENTIARY VOID CREATED BY THE HOLDING THAT THE
AFFIDAVITS WERE INADMISSIBLE.  THE PETITION WAS DENIED WITHOUT OPINION,
JUDGES SMITH AND RICH AGAIN DISSENTING.  BECAUSE WE CONCLUDE THAT
PETITIONER SHOULD HAVE AN OPPORTUNITY TO ESTABLISH ITS CONTENTIONS BY
OTHER TYPES OF EVIDENCE THAT MAY BE AVAILABLE TO IT, WE GRANT A WRIT OF
CERTIORARI AND REVERSE. 

THE SOLICITOR GENERAL SUGGESTS THAT THE COURT OF CUSTOMS AND PATENT
APPEALS MAY HAVE DEEMED THE AFFIDAVITS AND ANY EVIDENCE OF EXPERIMENTAL
USE THAT PETITIONER MIGHT PRESENT ON REMAND, IRRELEVANT TO THE QUESTION
OF UNITED STATES VALUE.  THE COURT DID NOT SO HOLD, AND THE TENOR OF
ITS OPINION IS TO THE CONTRARY.  THE SOLICITOR GENERAL ALSO ASSERTS
THAT PETITIONER SHOULD HAVE REQUESTED A REMAND PRIOR TO ITS PETITION
FOR REHEARING.  AS APPELLEE IN THE COURT OF CUSTOMS AND PATENT APPEALS,
PETITIONER HAD NO REASON TO ANTICIPATE THAT IF THE UNITED STATES
PREVAILED ON THE ADMISSIBILITY OF THE AFFIDAVITS THE COURT WOULD
NONETHELESS PROCEED TO CONSIDER THE MERITS OF THE REAPPRAISAL CLAIM
WITHOUT AFFORDING PETITIONER AN OPPORTUNITY TO PRESENT ORAL TESTIMONY
IN LIEU OF THE EXCLUDED AFFIDAVITS.  WE HOLD THAT THE COURT OF CUSTOMS
AND PATENT APPEALS ERRED IN REFUSING TO REMAND THE CASE TO THE CUSTOMS
COURT FOR FURTHER PROCEEDINGS.  CF. FORD MOTOR CO. V. LABOR BOARD, 305
U.S. 364, 373; STANDARD-VACUUM OIL CO. V. UNITED STATES, 339 U.S. 157. 
COMPARE AMERICAN PROPELLER & MFG. CO. V. UNITED STATES, 300 U.S. 475. 
REVERSED AND REMANDED. 
..END :





HOLLYWOOD BASEBALL ASS'N V. COMMISSIONER OF INTERNAL REVENUE 383 U.S.
824 


NO. 957.  DECIDED MARCH 28, 1966.  - CERTIORARI GRANTED; 352 F.2D 350,
VACATED AND REMANDED. 


HOLLYWOOD BASEBALL ASSOCIATION V. COMMISSIONER OF INTERNAL REVENUE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF
THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THAT COURT
FOR FURTHER CONSIDERATION IN LIGHT OF MALAT V. RIDDELL, ANTE, P. 569. 
..END :














HARPER V. VIRGINIA BD. OF ELECTIONS 383 U.S. 663 


NO. 48.  ARGUED JANUARY 25-26, 1966.  - DECIDED MARCH 24, 1966.* - 240
F. SUPP. 270, REVERSED. 

*TOGETHER WITH NO. 655, BUTTS V. HARRISON, GOVERNOR OF VIRGINIA, ET
AL., ALSO ON APPEAL FROM THE SAME COURT. 


APPELLANTS, VIRGINIA RESIDENTS, BROUGHT THIS ACTION TO HAVE VIRGINIA'S
POLL TAX DECLARED UNCONSTITUTIONAL.  THE THREE-JUDGE DISTRICT COURT
DISMISSED THE COMPLAINT ON THE BASIS OF BREEDLOVE V. SUTTLES, 302 U.S.
277.  HELD:  A STATE'S CONDITIONING OF THE RIGHT TO VOTE ON THE PAYMENT
OF A FEE OR TAX VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  BREEDLOVE V. SUTTLES, SUPRA, PRO TANTO OVERRULED.  PP. 665
670. 

(A)  ONCE THE FRANCHISE IS GRANTED TO THE ELECTORATE, LINES WHICH
DETERMINE WHO MAY VOTE MAY NOT BE DRAWN SO AS TO CAUSE INVIDIOUS
DISCRIMINATION.  PP. 665-667. 

(B)  FEE PAYMENTS OR WEALTH, LIKE RACE, CREED, OR COLOR, ARE
UNRELATED TO THE CITIZEN'S ABILITY TO PARTICIPATE INTELLIGENTLY IN THE
ELECTORAL PROCESS.  PP. 666-668. 

(C)  THE INTEREST OF THE STATE, WHEN IT COMES TO VOTING REGISTRATION,
IS LIMITED TO THE FIXING OF STANDARDS RELATED TO THE APPLICANT'S
QUALIFICATIONS AS A VOTER.  P. 668. 

(D)  LINES DRAWN ON THE BASIS OF WEALTH OR PROPERTY, LIKE THOSE OF
RACE, ARE TRADITIONALLY DISFAVORED.  P. 668. 

(E)  CLASSIFICATIONS WHICH MIGHT IMPINGE ON FUNDAMENTAL RIGHTS AND
LIBERTIES - SUCH AS THE FRANCHISE - MUST BE CLOSELY SCRUTINIZED.  P.
670. 

HARPER ET AL. V. VIRGINIA BOARD OF ELECTIONS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE ARE SUITS BY VIRGINIA RESIDENTS TO HAVE DECLARED
UNCONSTITUTIONAL VIRGINIA'S POLL TAX.  (FN1)  THE THREE-JUDGE DISTRICT
COURT, FEELING BOUND BY OUR DECISION IN BREEDLOVE V. SUTTLES, 302 U.S.
277, DISMISSED THE COMPLAINT.  SEE 240 F. SUPP. 270.  THE CASES CAME
HERE ON APPEAL AND WE NOTED PROBABLE JURISDICTION.  380 U.S. 930, 382
U.S. 806. 

WHILE THE RIGHT TO VOTE IN FEDERAL ELECTIONS IS CONFERRED BY ART. I,
SEC. 2, OF THE CONSTITUTION (UNITED STATES V. CLASSIC, 313 U.S. 299,
314-315), THE RIGHT TO VOTE IN STATE ELECTIONS IS NOWHERE EXPRESSLY
MENTIONED.  IT IS ARGUED THAT THE RIGHT TO VOTE IN STATE ELECTIONS IS
IMPLICIT, PARTICULARLY BY REASON OF THE FIRST AMENDMENT AND THAT IT MAY
NOT CONSTITUTIONALLY BE CONDITIONED UPON THE PAYMENT OF A TAX OR FEE. 
CF. MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 113.  (FN2)  WE DO NOT STOP
TO CANVASS THE RELATION BETWEEN VOTING AND POLITICAL EXPRESSION.  FOR
IT IS ENOUGH TO SAY THAT ONCE THE FRANCHISE IS GRANTED TO THE
ELECTORATE, LINES MAY NOT BE DRAWN WHICH ARE INCONSISTENT WITH THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THAT IS TO SAY,
THE RIGHT OF SUFFRAGE "IS SUBJECT TO THE IMPOSITION OF STATE STANDARDS
WHICH ARE NOT DISCRIMINATORY AND WHICH DO NOT CONTRAVENE ANY
RESTRICTION THAT CONGRESS, ACTING PURSUANT TO ITS CONSTITUTIONAL
POWERS, HAS IMPOSED."  LASSITER V. NORTHAMPTON ELECTION BOARD, 360 U.S.
45, 51.  WE WERE SPEAKING THERE OF A STATE LITERACY TEST WHICH WE
SUSTAINED, WARNING THAT THE RESULT WOULD BE DIFFERENT IF A LITERACY
TEST, FAIR ON ITS FACE, WERE USED TO DISCRIMINATE AGAINST A CLASS. 
(FN3)  ID., AT 53.  BUT THE LASSITER CASE DOES NOT GOVERN THE RESULT
HERE, BECAUSE, UNLIKE A POLL TAX, THE "ABILITY TO READ AND WRITE  ...
HAS SOME RELATION TO STANDARDS DESIGNED TO PROMOTE INTELLIGENT USE OF
THE BALLOT."  ID., AT 51. 

WE CONCLUDE THAT A STATE VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT WHENEVER IT MAKES THE AFFLUENCE OF THE VOTER OR
PAYMENT OF ANY FEE AN ELECTORAL STANDARD.  VOTER QUALIFICATIONS HAVE NO
RELATION TO WEALTH NOR TO PAYING OR NOT PAYING THIS OR ANY OTHER TAX. 
(FN4) OUR CASES DEMONSTRATE THAT THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT RESTRAINS THE STATES FROM FIXING VOTER
QUALIFICATIONS WHICH INVIDIOUSLY DISCRIMINATE.  THUS WITHOUT
QUESTIONING THE POWER OF A STATE TO IMPOSE REASONABLE RESIDENCE
RESTRICTIONS ON THE AVAILABILITY OF THE BALLOT (SEE POPE V. WILLIAMS,
193 U.S. 621), WE HELD IN CARRINGTON V. RASH, 380 U.S. 89, THAT A STATE
MAY NOT DENY THE OPPORTUNITY TO VOTE TO A BONA FIDE RESIDENT MERELY
BECAUSE HE IS A MEMBER OF THE ARMED SERVICES.  "BY FORBIDDING A SOLDIER
EVER TO CONTROVERT THE PRESUMPTION OF NON-RESIDENCE, THE TEXAS
CONSTITUTION IMPOSES AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE
FOURTEENTH AMENDMENT."  ID., AT 96.  AND SEE LOUISIANA V. UNITED
STATES, 380 U.S. 145.  PREVIOUSLY WE HAD SAID THAT NEITHER HOMESITE NOR
OCCUPATION "AFFORDS A PERMISSIBLE BASIS FOR DISTINGUISHING BETWEEN
QUALIFIED VOTERS WITHIN THE STATE."  GRAY V. SANDERS, 372 U.S. 368,
380.  WE THINK THE SAME MUST BE TRUE OF REQUIREMENTS OF WEALTH OR
AFFLUENCE OR PAYMENT OF A FEE. 

LONG AGO IN YICK WO V. HOPKINS, 118 U.S. 356, 370, THE COURT REFERRED
TO "THE POLITICAL FRANCHISE OF VOTING" AS A "FUNDAMENTAL POLITICAL
RIGHT, BECAUSE PRESERVATIVE OF ALL RIGHTS."  RECENTLY IN REYNOLDS V.
SIMS, 377 U.S. 533, 561-562, WE SAID, "UNDOUBTEDLY, THE RIGHT OF
SUFFRAGE IS A FUNDAMENTAL MATTER IN A FREE AND DEMOCRATIC SOCIETY. 
ESPECIALLY SINCE THE RIGHT TO EXERCISE THE FRANCHISE IN A FREE AND
UNIMPAIRED MANNER IS PRESERVATIVE OF OTHER BASIC CIVIL AND POLITICAL
RIGHTS, ANY ALLEGED INFRINGEMENT OF THE RIGHT OF CITIZENS TO VOTE MUST
BE CAREFULLY AND METICULOUSLY SCRUTINIZED."  THERE WE WERE CONSIDERING
CHARGES THAT VOTERS IN ONE PART OF THE STATE HAD GREATER REPRESENTATION
PER PERSON IN THE STATE LEGISLATURE THAN VOTERS IN ANOTHER PART OF THE
STATE.  WE CONCLUDED: 

"A CITIZEN, A QUALIFIED VOTER, IS NO MORE NOR NO LESS SO BECAUSE HE
LIVES IN THE CIT  OR ON THE FARM.  THIS IS THE CLEAR AND STRONG COMMAND
OF OUR CONSTITUTION'S EQUAL PROTECTION CLAUSE.  THIS IS AN ESSENTIAL
PART OF THE CONCEPT OF A GOVERNMENT OF LAWS AND NOT MEN.  THIS IS AT
THE HEART OF LINCOLN'S VISION OF 'GOVERNMENT OF THE PEOPLE, BY THE
PEOPLE, AND FOR THE PEOPLE.'  THE EQUAL PROTECTION CLAUSE DEMANDS NO
LESS THAN SUBSTANTIALLY EQUAL STATE LEGISLATIVE REPRESENTATION FOR ALL
CITIZENS, OF ALL PLACES AS WELL AS OF ALL RACES."  ID., AT 568. 

WE SAY THE SAME WHETHER THE CITIZEN, OTHERWISE QUALIFIED TO VOTE, HAS
$1.50 IN HIS POCKET OR NOTHING AT ALL, PAYS THE FEE OR FAILS TO PAY IT.
THE PRINCIPLE THAT DENIES THE STATE THE RIGHT TO DILUTE A CITIZEN'S
VOTE ON ACCOUNT OF HIS ECONOMIC STATUS OR OTHER SUCH FACTORS BY ANALOGY
BARS A SYSTEM WHICH EXCLUDES THOSE UNABLE TO PAY A FEE TO VOTE OR WHO
FAIL TO PAY. 

IT IS ARGUED THAT A STATE MAY EXACT FEES FROM CITIZENS FOR MANY
DIFFERENT KINDS OF LICENSES; THAT IF IT CAN DEMAND FROM ALL AN EQUAL
FEE FOR A DRIVER'S LICENSE, (FN5) IT CAN DEMAND FROM ALL AN EQUAL POLL
TAX FOR VOTING.  BUT WE MUST REMEMBER THAT THE INTEREST OF THE STATE,
WHEN IT COMES TO VOTING, IS LIMITED TO THE POWER TO FIX
QUALIFICATIONS.  WEALTH, LIKE RACE, CREED, OR COLOR, IS NOT GERMANE TO
ONE'S ABILITY TO PARTICIPATE INTELLIGENTLY IN THE ELECTORAL PROCESS. 
LINES DRAWN ON THE BASIS OF WEALTH OR PROPERTY, LIKE THOSE OF RACE
(KOREMATSU V. UNITED STATES, 323 U.S. 214, 216), ARE TRADITIONALLY
DISFAVORED.  SEE EDWARDS V. CALIFORNIA, 314 U.S. 160, 184-185 (JACKSON,
J., CONCURRING); GRIFFIN V. ILLINOIS, 351 U.S. 12; DOUGLAS V.
CALIFORNIA, 372 U.S. 353.  TO INTRODUCE WEALTH OR PAYMENT OF A FEE AS A
MEASURE OF A VOTER'S QUALIFICATIONS IS TO INTRODUCE A CAPRICIOUS OR
IRRELEVANT FACTOR.  THE DEGREE OF THE DISCRIMINATION IS IRRELEVANT.  IN
THIS CONTEXT - THAT IS, AS A CONDITION OF OBTAINING A BALLOT - THE
REQUIREMENT OF FEE PAYING CAUSES AN "INVIDIOUS" DISCRIMINATION (SKINNER
V. OKLAHOMA, 316 U.S. 535, 541) THAT RUNS AFOUL OF THE EQUAL PROTECTION
CLAUSE.  LEVY "BY THE POLL," AS STATED IN BREEDLOVE V. SUTTLES, SUPRA,
AT 281, IS AN OLD FAMILIAR FORM OF TAXATION; AND WE SAY NOTHING TO
IMPAIR ITS VALIDITY SO LONG AS IT IS NOT MADE A CONDITION TO THE
EXERCISE OF THE FRANCHISE.  BREEDLOVE V. SUTTLES SANCTIONED ITS USE AS
"A PREREQUISITE OF VOTING."  ID., AT 283.   TO THAT EXTENT THE
BREEDLOVE CASE IS OVERRULED. 

WE AGREE, OF COURSE, WITH MR. JUSTICE HOLMES THAT THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT "DOES NOT ENACT MR. HERBERT
SPENCER'S SOCIAL STATICS" (LOCHNER V. NEW YORK, 198 U.S. 45, 75). 
LIKEWISE, THE EQUAL PROTECTION CLAUSE IS NOT SHACKLED TO THE POLITICAL
THEORY OF A PARTICULAR ERA.  IN DETERMINING WHAT LINES ARE
UNCONSTITUTIONALLY DISCRIMINATORY, WE HAVE NEVER BEEN CONFINED TO
HISTORIC NOTIONS OF EQUALITY, ANY MORE THAN WE HAVE RESTRICTED DUE
PROCESS TO A FIXED CATALOGUE OF WHAT WAS AT A GIVEN TIME DEEMED TO BE
THE LIMITS OF FUNDAMENTAL RIGHTS.  SEE MALLOY V. HOGAN, 378 U.S. 1, 5
6.  NOTIONS OF WHAT CONSTITUTES EQUAL TREATMENT FOR PURPOSES OF THE
EQUAL PROTECTION CLAUSE DO CHANGE.  THIS COURT IN 1896 HELD THAT LAWS
PROVIDING FOR SEPARATE PUBLIC FACILITIES FOR WHITE AND NEGRO CITIZENS
DID NOT DEPRIVE THE LATTER OF THE EQUAL PROTECTION AND TREATMENT THAT
THE FOURTEENTH AMENDMENT COMMANDS.  PLESSY V. FERGUSON, 163 U.S. 537. 
SEVEN OF THE EIGHT JUSTICES THEN SITTING SUBSCRIBED TO THE COURT'S
OPINION, THUS JOINING IN EXPRESSIONS OF WHAT CONSTITUTED UNEQUAL AND
DISCRIMINATORY TREATMENT THAT SOUND STRANGE TO THE CONTEMPORARY EAR. 
(FN6)  WHEN, IN 1954 - MORE THAN A HALF-CENTURY LATER - WE REPUDIATED
THE "SEPARATE-BUT-EQUAL" DOCTRINE OF PLESSY AS RESPECTS PUBLIC
EDUCATION (FN7) WE STATED:  "IN APPROACHING THIS PROBLEM, WE CANNOT
TURN THE CLOCK BACK TO 1868 WHEN THE AMENDMENT WAS ADOPTED, OR EVEN TO
1896 WHEN PLESSY V. FERGUSON WAS WRITTEN."  BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, 492. 

IN A RECENT SEARCHING RE-EXAMINATION OF THE EQUAL PROTECTION CLAUSE,
WE HELD, AS ALREADY NOTED, THAT "THE OPPORTUNITY FOR EQUAL
PARTICIPATION BY ALL VOTERS IN THE ELECTION OF STATE LEGISLATORS" IS
REQUIRED.  (FN8)  REYNOLDS V. SIMS, SUPRA, AT 566.  WE DECLINE TO
QUALIFY THAT PRINCIPLE BY SUSTAINING THIS POLL TAX.  OUR CONCLUSION,
LIKE THAT IN REYNOLDS V. SIMS, IS FOUNDED NOT ON WHAT WE THINK
GOVERNMENTAL POLICY SHOULD BE, BUT ON WHAT THE EQUAL PROTECTION CLAUSE
REQUIRES. 

WE HAVE LONG BEEN MINDFUL THAT WHERE FUNDAMENTAL RIGHTS AND LIBERTIES
ARE ASSERTED UNDER THE EQUAL PROTECTION CLAUSE, CLASSIFICATIONS WHICH
MIGHT INVADE OR RESTRAIN THEM MUST BE CLOSELY SCRUTINIZED AND CAREFULLY
CONFINED.  SEE, E.G., SKINNER V. OKLAHOMA, 316 U.S. 535, 541; REYNOLDS
V. SIMS, 377 U.S. 533, 561-562; CARRINGTON V. RASH, SUPRA; BAXSTROM V.
HEROLD, ANTE, P. 107; COX V. LOUISIANA, 379 U.S. 536, 580-581 (BLACK,
J., CONCURRING). 

THOSE PRINCIPLES APPLY HERE.  FOR TO REPEAT, WEALTH OR FEE PAYING
HAS, IN OUR VIEW, NO RELATION TO VOTING QUALIFICATIONS; THE RIGHT TO
VOTE IS TOO PRECIOUS, TOO FUNDAMENTAL TO BE SO BURDENED OR
CONDITIONED.  REVERSED. 

FN1  SECTION 173 OF VIRGINIA'S CONSTITUTION DIRECTS THE GENERAL
ASSEMBLY TO LEVY AN ANNUAL POLL TAX NOT EXCEEDING $1.50 ON EVERY
RESIDENT OF THE STATE 21 YEARS OF AGE AND OVER (WITH EXCEPTIONS NOT
RELEVANT HERE).  ONE DOLLAR OF THE TAX IS TO BE USED BY STATE OFFICIALS
"EXCLUSIVELY IN AID OF THE PUBLIC FREE SCHOOLS" AND THE REMAINDER IS TO
BE RETURNED TO THE COUNTIES FOR GENERAL PURPOSES.  SECTION 18 OF THE
CONSTITUTION INCLUDES PAYMENT OF POLL TAXES AS A PRECONDITION FOR
VOTING.  SECTION 20 PROVIDES THAT A PERSON MUST "PERSONALLY" PAY ALL
STATE POLL TAXES FOR THE THREE YEARS PRECEDING THE YEAR IN WHICH HE
APPLIES FOR REGISTRATION.  BY SEC. 21 THE POLL TAX MUST BE PAID AT
LEAST SIX MONTHS PRIOR TO THE ELECTION IN WHICH THE VOTER SEEKS TO
VOTE.  SINCE THE TIME FOR ELECTION OF STATE OFFICIALS VARIES (VA. CODE
SECS.  24-136, 24-160-24-168; ID., AT SEC. 24-22), THE SIX MONTHS'
DEADLINE WILL VARY, ELECTION FROM ELECTION.  THE POLL TAX IS OFTEN
ASSESSED ALONG WITH THE PERSONAL PROPERTY TAX.  THOSE WHO DO NOT PAY A
PERSONAL PROPERTY TAX ARE NOT ASSESSED FOR A POLL TAX, IT BEING THEIR
RESPONSIBILITY TO TAKE THE INITIATIVE AND REQUEST TO BE ASSESSED.  VA.
CODE SEC. 58-1163.  ENFORCEMENT OF POLL TAXES TAKES THE FORM OF
DISENFRANCHISEMENT OF THOSE WHO DO NOT PAY, SEC.  22 OF THE VIRGINIA
CONSTITUTION PROVIDING THAT COLLECTION OF DELINQUENT POLL TAXES FOR A
PARTICULAR YEAR MAY NOT BE ENFORCED BY LEGAL PROCEEDINGS UNTIL THE TAX
FOR THAT YEAR HAS BECOME THREE YEARS DELINQUENT. 

FN2  JUDGE THORNBERRY, SPEAKING FOR THE THREE-JUDGE COURT WHICH
RECENTLY DECLARED THE TEXAS POLL TAX UNCONSTITUTIONAL, SAID:  "IF THE
STATE OF TEXAS PLACED A TAX ON THE RIGHT TO SPEAK AT THE RATE OF ONE
DOLLAR AND SEVENTY-FIVE CENTS PER YEAR, NO COURT WOULD HESITATE TO
STRIKE IT DOWN AS A BLATANT INFRINGEMENT OF THE FREEDOM OF SPEECH.  YET
THE POLL TAX AS ENFORCED IN TEXAS IS A TAX ON THE EQUALLY IMPORTANT
RIGHT TO VOTE."  252 F. SUPP. 234, 254 (DECIDED FEBRUARY 9, 1966). 

FN3  WE RECENTLY HELD IN LOUISIANA V. UNITED STATES, 380 U.S. 145,
THAT A LITERACY TEST WHICH GAVE VOTING REGISTRARS "A VIRTUALLY
UNCONTROLLED DISCRETION AS TO WHO SHOULD VOTE AND WHO SHOULD NOT" (ID.,
AT 150) HAD BEEN USED TO DETER NEGROES FROM VOTING AND ACCORDINGLY WE
STRUCK IT DOWN.  WHILE THE "VIRGINIA POLL TAX WAS BORN OF A DESIRE TO
DISENFRANCHISE THE NEGRO" (HARMAN V. FORSSENIUS, 380 U.S. 528, 543), WE
DO NOT STOP TO DETERMINE WHETHER ON THIS RECORD THE VIRGINIA TAX IN ITS
MODERN SETTING SERVES THE SAME END. 

FN4  ONLY A HANDFUL OF STATES TODAY CONDITION THE FRANCHISE ON THE
PAYMENT OF A POLL TAX.  ALABAMA (ALA. CONST., SECS. 178, 194, AND
AMENDMENTS 96 AND 207; ALA. CODE TIT. 17, SEC. 12) AND TEXAS (TEX.
CONST., ART. 6, SEC. 2; VERNON'S ANN. STAT., ELECTION CODE, ARTS. 5.02,
5.09) EACH IMPOSE A POLL TAX OF $1.50.  MISSISSIPPI (MISS.  CONST.,
SECS. 241, 243; MISS.  CODE SECS. 3130, 3160, 3235) HAS A POLL TAX OF
$2.  VERMONT HAS RECENTLY ELIMINATED THE REQUIREMENT THAT POLL TAXES BE
PAID IN ORDER TO VOTE.  ACT OF FEB. 23, 1966, AMENDING VT.  STAT. ANN.
TIT. 24, SEC. 701. 

AS ALREADY NOTED, NOTE 2, SUPRA, THE TEXAS POLL TAX WAS RECENTLY
DECLARED UNCONSTITUTIONAL BY A THREE-JUDGE UNITED STATES DISTRICT
COURT.  UNITED STATES V. TEXAS, 252 F. SUPP. 234 (DECIDED FEBRUARY 9,
1966).  LIKEWISE, THE ALABAMA TAX.  UNITED STATES V. ALABAMA, 252 F.
SUPP. 95 (DECIDED MARCH 3, 1966). 

FN5  MAINE HAS A POLL TAX (MAINE REV. STAT. ANN. TIT. 36, SEC. 1381)
WHICH IS NOT MADE A CONDITION OF VOTING; INSTEAD, ITS PAYMENT IS A
CONDITION OF OBTAINING A MOTOR VEHICLE LICENSE (MAINE REV. STAT. ANN.
TIT. 29, SEC. 108) OR A MOTOR VEHICLE OPERATOR'S LICENSE.  ID., SEC.
584. 

FN6  E.G., "WE CONSIDER THE UNDERLYING FALLACY OF THE PLAINTIFF'S
ARGUMENT TO CONSIST IN THE ASSUMPTION THAT THE ENFORCED SEPARATION OF
THE TWO RACES STAMPS THE COLORED RACE WITH A BADGE OF INFERIORITY.  IF
THIS BE SO, IT IS NOT BY REASON OF ANYTHING FOUND IN THE ACT, BUT
SOLELY BECAUSE THE COLORED RACE CHOOSES TO PUT THAT CONSTRUCTION UPON
IT."  163 U.S., AT 551.    FN7  SEGREGATED PUBLIC TRANSPORTATION,
APPROVED IN PLESSY V. FEGUSON, SUPRA, WAS HELD UNCONSTITUTIONAL IN
GAYLE V. BROWDER, 352 U.S. 903 (PER CURIAM). 

FN8  ONLY MR. JUSTICE HARLAN DISSENTED, WHILE MR. JUSTICE CLARK AND
MR. JUSTICE STEWART EACH CONCURRED ON SEPARATE GROUNDS. 

MR. JUSTICE BLACK, DISSENTING. 

IN BREEDLOVE V. SUTTLES, 302 U.S. 277, DECIDED DECEMBER 6, 1937, A
FEW WEEKS AFTER I TOOK MY SEAT AS A MEMBER OF THIS COURT, WE
UNANIMOUSLY UPHELD THE RIGHT OF THE STATE OF GEORGIA TO MAKE PAYMENT OF
ITS STATE POLL TAX A PREREQUISITE TO VOTING IN THE STATE ELECTIONS.  WE
REJECTED AT THAT TIME CONTENTIONS THAT THE STATE LAW VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE IT PUT AN UNEQUAL
BURDEN ON DIFFERENT GROUPS OF PEOPLE ACCORDING TO THEIR AGE, SEX, AND
ABILITY TO PAY.  IN REJECTING THE CONTENTION THAT THE LAW VIOLATED THE
EQUAL PROTECTION CLAUSE THE COURT NOTED AT P. 281: 

"WHILE POSSIBLE BY STATUTORY DECLARATION TO LEVY A POLL TAX UPON
EVERY INHABITANT OF WHATSOEVER SEX, AGE OR CONDITION, COLLECTION FROM
ALL WOULD BE IMPOSSIBLE FOR ALWAYS THERE ARE MANY TOO POOR TO PAY." 

BELIEVING AT THAT TIME THAT THE COURT HAD PROPERLY RESPECTED THE
LIMITATION OF ITS POWER UNDER THE EQUAL PROTECTION CLAUSE AND WAS RIGHT
IN REJECTING THE EQUAL PROTECTION ARGUMENT, I JOINED THE COURT'S
JUDGMENT AND OPINION.  LATER, MAY 28, 1951, I JOINED THE COURT'S
JUDGMENT IN BUTLER V. THOMPSON, 341 U.S. 937, UPHOLDING, OVER THE
DISSENT OF MR. JUSTICE DOUGLAS, THE VIRGINIA STATE POLL TAX LAW
CHALLENGED HERE AGAINST THE SAME EQUAL PROTECTION CHALLENGES.  SINCE
THE BREEDLOVE AND BUTLER CASES WERE DECIDED THE FEDERAL CONSTITUTION
HAS NOT BEEN AMENDED IN THE ONLY WAY IT COULD CONSTITUTIONALLY HAVE
BEEN, THAT IS, AS PROVIDED IN ARTICLE V (FN1) OF THE CONSTITUTION.  I
WOULD ADHERE TO THE HOLDING OF THOSE CASES.  THE COURT, HOWEVER,
OVERRULES BREEDLOVE IN PART, BUT ITS OPINION REVEALS THAT IT DOES SO
NOT BY USING ITS LIMITED POWER TO INTERPRET THE ORIGINAL MEANING OF THE
EQUAL PROTECTION CLAUSE, BUT BY GIVING THAT CLAUSE A NEW MEANING WHICH
IT BELIEVES REPRESENTS A BETTER GOVERNMENTAL POLICY.  FROM THIS ACTION
I DISSENT. 

IT SHOULD BE POINTED OUT AT ONCE THAT THE COURT'S DECISION IS TO NO
EXTENT BASED ON A FINDING THAT THE VIRGINIA LAW AS WRITTEN OR AS
APPLIED IS BEING USED AS A DEVICE OR MECHANISM TO DENY NEGRO CITIZENS
OF VIRGINIA THE RIGHT TO VOTE ON ACCOUNT OF THEIR COLOR.  APPARENTLY
THE COURT AGREES WITH THE DISTRICT COURT BELOW AND WITH MY BROTHERS
HARLAN AND STEWART THAT THIS RECORD WOULD NOT SUPPORT ANY FINDING THAT
THE VIRGINIA POLL TAX LAW THE COURT INVALIDATES HAS ANY SUCH EFFECT. 
IF THE RECORD COULD SUPPORT A FINDING THAT THE LAW AS WRITTEN OR
APPLIED HAS SUCH AN EFFECT, THE LAW WOULD OF COURSE BE UNCONSTITUTIONAL
AS A VIOLATION OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS AND ALSO 42
U.S.C. SEC. 1971(A).  THIS FOLLOWS FROM OUR HOLDING IN SCHNELL V.
DAVIS, 336 U.S. 933, AFFIRMING 81 F. SUPP. 872 (D.C.S.D. ALA.);
GOMILLION V. LIGHTFOOT, 364 U.S. 339; UNITED STATES V. MISSISSIPPI, 380
U.S. 128; LOUISIANA V. UNITED STATES, 380 U.S. 145.  WHAT THE COURT
DOES HOLD IS THAT THE EQUAL PROTECTION CLAUSE NECESSARILY BARS ALL
STATES FROM MAKING PAYMENT OF A STATE TAX, ANY TAX, A PREREQUISITE TO
VOTING. 

(1)  I THINK THE INTERPRETATION THAT THIS COURT GAVE THE EQUAL
PROTECTION CLAUSE IN BREEDLOVE WAS CORRECT.  THE MERE FACT THAT A LAW
RESULTS IN TREATING SOME GROUPS DIFFERENTLY FROM OTHERS DOES NOT, OF
COURSE, AUTOMATICALLY AMOUNT TO A VIOLATION OF THE EQUAL PROTECTION
CLAUSE.  TO BAR A STATE FROM DRAWING ANY DISTINCTIONS IN THE
APPLICATION OF ITS LAWS WOULD PRACTICALLY PARALYZE THE REGULATORY POWER
OF LEGISLATIVE BODIES.  CONSEQUENTLY "THE CONSTITUTIONAL COMMAND FOR A
STATE TO AFFORD 'EQUAL PROTECTION OF THE LAWS' SETS A GOAL NOT
ATTAINABLE BY THE INVENTION AND APPLICATION OF A PRECISE FORMULA." 
KOTCH V. RIVER PORT PILOT COMM'RS, 330 U.S. 552, 556.  VOTING LAWS ARE
NO EXCEPTION TO THIS PRINCIPLE.  ALL VOTING LAWS TREAT SOME PERSONS
DIFFERENTLY FROM OTHERS IN SOME RESPECTS.  SOME BAR A PERSON FROM
VOTING WHO IS UNDER 21 YEARS OF AGE; OTHERS BAR THOSE UNDER 18.  SOME
BAR CONVICTED FELONS OR THE INSANE, AND SOME HAVE ATTACHED A FREEHOLD
OR OTHER PROPERTY QUALIFICATION FOR VOTING.  THE BREEDLOVE CASE UPHELD
A POLL TAX WHICH WAS IMPOSED ON MEN BUT WAS NOT EQUALLY IMPOSED ON
WOMEN AND MINORS, AND THE COURT TODAY DOES NOT OVERRULE THAT PART OF
BREEDLOVE WHICH APPROVED THOSE DISCIMINATORY PROVISIONS.  AND IN
LASSITER V. NORTHAMPTION ELECTION BOARD, 360 U.S. 45, THIS COURT HELD
THAT STATE LAWS WHICH DISQUALIFIED THE ILLITERATE FROM VOTING DID NOT
VIOLATE THE EQUAL PROTECTION CLAUSE.  FROM THESE CASES AND ALL THE
OTHERS DECIDED BY THIS COURT INTERPRETING THE EQUAL PROTECTION CLAUSE
IT IS CLEAR THAT SOME DISCRIMINATORY VOTING QUALIFICATIONS CAN BE
IMPOSED WITHOUT VIOLATING THE EQUAL PROTECTION CLAUSE. 

A STUDY OF OUR CASES SHOWS THAT THIS COURT HAS REFUSED TO USE THE
GENERAL LANGUAGE OF THE EQUAL PROTECTION CLAUSE AS THOUGH IT PROVIDED A
HANDY INSTRUMENT TO STRIKE DOWN STATE LAWS WHICH THE COURT FEELS ARE
BASED ON BAD GOVERNMENTAL POLICY.  THE EQUAL PROTECTION CASES CAREFULLY
ANALYZED BOIL DOWN TO THE PRINCIPLE THAT DISTINCTIONS DRAWN AND EVEN
DISCRIMINATIONS IMPOSED BY STATE LAWS DO NOT VIOLATE THE EQUAL
PROTECTION CLAUSE SO LONG AS THESE DISTINCTIONS AND DISCRIMINATIONS ARE
NOT "IRRATIONAL," "IRRELEVANT," "UNREASONABLE," "ARBITRARY," OR
"INVIDIOUS."  (FN2)  THESE VAGUE AND INDEFINITE TERMS DO NOT, OF
COURSE, PROVIDE A PRECISE FORMULA OR AN AUTOMATIC MECHANISM FOR
DECIDING CASES ARISING UNDER THE EQUAL PROTECTION CLAUSE.  THE
RESTRICTIVE CONNOTATIONS OF THESE TERMS, HOWEVER (WHICH IN OTHER
CONTEXTS HAVE BEEN USED TO EXPAND THE COURT'S POWER INORDINATELY, SEE,
E.G., CASES CITED AT PP. 728-732 IN FERGUSON V. SKRUPA, 372 U.S. 726),
ARE A PLAIN RECOGNITION OF THE FACT THAT UNDER A PROPER INTERPRETATION
OF THE EQUAL PROTECTION CLAUSE STATES ARE TO HAVE THE BROADEST KIND OF
LEEWAY IN AREAS WHERE THEY HAVE A GENERAL CONSTITUTIONAL COMPETENCE TO
ACT.  (FN3)  IN VIEW OF THE PURPOSE OF THE TERMS TO RESTRAIN THE COURTS
FROM A WHOLESALE INVALIDATION OF STATE LAWS UNDER THE EQUAL PROTECTION
CLAUSE IT WOULD BE DIFFICULT TO SAY THAT THE POLL TAX REQUIREMENT IS
"IRRATIONAL" OR "ARBITRARY" OR WORKS "INVIDIOUS DISCRIMINATIONS." 
STATE POLL TAX LEGISLATION CAN "REASONABLY," "RATIONALLY" AND WITHOUT
AN "INVIDIOUS" OR EVIL PURPOSE TO INJURE ANYONE BE FOUND TO REST ON A
NUMBER OF STATE POLICIES INCLUDING (1) THE STATE'S DESIRE TO COLLECT
ITS REVENUE, AND (2) ITS BELIEF THAT VOTERS WHO PAY A POLL TAX WILL BE
INTERESTED IN FURTHERING THE STATE'S WELFARE WHEN THEY VOTE.  CERTAINLY
IT IS RATIONAL TO BELIEVE THAT PEOPLE MAY BE MORE LIKELY TO PAY TAXES
IF PAYMENT IS A PREREQUISITE TO VOTING.  AND IF HISTORY CAN BE A FACTOR
IN DETERMINING  THE "RATIONALITY" OF DISCRIMINATION IN A STATE LAW
(WHICH WE HELD IT COULD IN KOTCH V. RIVER PORT PILOT COMM'RS, SUPRA),
THEN WHATEVER MAY BE OUR PERSONAL OPINION, HISTORY IS ON THE SIDE OF
"RATIONALITY" OF THE STATE'S POLL TAX POLICY.  PROPERTY QUALIFICATIONS
EXISTED IN THE COLONIES AND WERE CONTINUED BY MANY STATES AFTER THE
CONSTITUTION WAS ADOPTED.  ALTHOUGH I JOIN THE COURT IN DISLIKING THE
POLICY OF THE POLL TAX, THIS IS NOT IN MY JUDGMENT A JUSTIFIABLE REASON
FOR HOLDING THIS POLL TAX LAW UNCONSTITUTIONAL.  SUCH A HOLDING ON MY
PART WOULD, IN MY JUDGMENT, BE AN EXERCISE OF POWER WHICH THE
CONSTITUTION DOES NOT CONFER UPON ME.  (FN4) 

(2)  ANOTHER REASON FOR MY DISSENT FROM THE COURT'S JUDGMENT AND
OPINION IS THAT IT SEEMS TO BE USING THE OLD "NATURAL-LAW-DUE-PROCESS
FORMULA" (FN5) TO JUSTIFY STRIKING DOWN STATE LAWS AS VIOLATIONS OF THE
EQUAL PROTECTION CLAUSE.  I HAVE HERETOFORE HAD MANY OCASSIONS TO
EXPRESS MY STRONG BELIEF THAT THERE IS NO CONSTITUTIONAL SUPPORT
WHATEVER FOR THIS COURT TO USE THE DUE PROCESS CLAUSE AS THOUGH IT
PROVIDED A BLANK CHECK TO ALTER THE MEANING OF THE CONSTITUTION AS
WRITTEN SO AS TO ADD TO IT SUBSTANTIVE CONSTITUTIONAL CHANGES WHICH A
MAJORITY OF THE COURT AT ANY GIVEN TIME BELIEVES ARE NEEDED TO MEET
PRESENT-DAY PROBLEMS.  (FN6)  NOR IS THERE IN MY OPINION ANY MORE
CONSTITUTIONAL SUPPORT FOR THIS COURT TO USE THE EQUAL PROTECTION
CLAUSE, AS IT HAS TODAY, TO WRITE INTO THE CONSTITUTION ITS NOTIONS OF
WHAT IT THINKS IS GOOD GOVERNMENTAL POLICY.  IF BASIC CHANGES AS TO THE
RESPECTIVE POWERS OF THE STATE AND NATIONAL GOVERNMENTS ARE NEEDED, I
PREFER TO LET THOSE CHANGES BE MADE BY AMENDMENT AS ARTICLE V OF THE
CONSTITUTION PROVIDES.  FOR A MAJORITY OF THIS COURT TO UNDERTAKE THAT
TASK, WHETHER PURPORTING TO DO SO UNDER THE DUE PROCESS OR THE EQUAL
PROTECTION CLAUSE AMOUNTS, IN MY JUDGMENT, TO AN EXERCISE OF POWER THE
CONSTITUTION MAKERS WITH FORESIGHT AND WISDOM REFUSED TO GIVE THE
JUDICIAL BRANCH OF THE GOVERNMENT.  I HAVE IN NO WAY DEPARTED FROM THE
VIEW I EXPRESSED IN ADAMSON V. CALIFORNIA, 332 U.S. 46, 90, DECIDED
JUNE 23, 1947, THAT THE "NATURAL-LAW-DUE-PROCESS FORMULA" UNDER WHICH
COURTS MAKE THE CONSTITUTION MEAN WHAT THEY THINK IT SHOULD AT A GIVEN
TIME "HAS BEEN USED IN THE PAST, AND CAN BE USED IN THE FUTURE, TO
LICENSE THIS COURT, IN CONSIDERING REGULATORY LEGISLATION, TO ROAM AT
LARGE IN THE BROAD EXPANSES OF POLICY AND MORALS AND TO TRESPASS, ALL
TOO FREELY, ON THE LEGISLATIVE DOMAIN OF THE STATES AS WELL AS THE
FEDERAL GOVERNMENT." 

THE COURT DENIES THAT IT IS USING THE "NATURAL-LAW-DUE-PROCESS
FORMULA."  IT SAYS THAT ITS INVALIDATION OF THE VIRGINIA LAW "IS
FOUNDED NOT ON WHAT WE THINK GOVERNMENTAL POLICY SHOULD BE, BUT ON WHAT
THE EQUAL PROTECTION CLAUSE REQUIRES."  I FIND NO STATEMENT IN THE
COURT'S OPINION, HOWEVER, WHICH ADVANCES EVEN A PLAUSIBLE ARGUMENT AS
TO WHY THE ALLEGED DISCRIMINATIONS WHICH MIGHT POSSIBLY BE EFFECTED BY
VIRGINIA'S POLL TAX LAW ARE "IRRATIONAL," "UNREASONABLE," "ARBITRARY,"
OR "INVIDIOUS" OR HAVE NO RELEVANCE TO A LEGITIMATE POLICY WHICH THE
STATE WISHES TO ADOPT.  THE COURT GIVES NO REASON AT ALL TO DISCREDIT
THE LONG-STANDING BELIEFS THAT MAKING THE PAYMENT OF A TAX A
PREREQUISITE TO VOTING IS AN EFFECTIVE WAY OF COLLECTING REVENUE AND
THAT PEOPLE WHO PAY THEIR TAXES ARE LIKELY TO HAVE A FAR GREATER
INTEREST IN THEIR GOVERNMENT.  THE COURT'S FAILURE TO GIVE ANY REASONS
TO SHOW THAT THESE PURPOSES OF THE POLL TAX ARE "IRRATIONAL,"
"UNREASONABLE," "ARBITRARY," OR "INVIDIOUS" IS A PRETTY CLEAR
INDICATION TO ME THAT NONE EXIST.  I CAN ONLY CONCLUDE THAT THE
PRIMARY, CONTROLLING, PREDOMINANT, IF NOT THE EXCLUSIVE REASON FOR
DECLARING THE VIRGINIA LAW UNCONSTITUTIONAL IS THE COURT'S DEEP-SEATED
HOSTILITY AND ANTAGONISM, WHICH I SHARE, TO MAKING PAYMENT OF A TAX A
PREREQUISITE TO VOTING. 

THE COURT'S JUSTIFICATION FOR CONSULTING ITS OWN NOTIONS RATHER THAN
FOLLOWING THE ORIGINAL MEANING OF THE CONSTITUTION, AS I WOULD,
APPARENTLY IS BASED ON THE BELIEF OF THE MAJORITY OF THE COURT THAT FOR
THIS COURT TO BE BOUND BY THE ORIGINAL MEANING OF THE CONSTITUTION IS
AN INTOLERABLE AND DEBILITATING EVIL; THAT OUR CONSTITUTION SHOULD NOT
BE "SHACKLED TO THE POLITICAL THEORY OF A PARTICULAR ERA," AND THAT TO
SAVE THE COUNTRY FROM THE ORIGINAL CONSTITUTION THE COURT MUST HAVE
CONSTANT POWER TO RENEW IT AND KEEP IT ABREAST OF THIS COURT'S MORE
ENLIGHTENED THEORIES OF WHAT IS BEST FOR OUR SOCIETY.  (FN7)  IT SEEMS
TO ME THAT THIS IS AN ATTACK NOT ONLY ON THE GREAT VALUE OF OUR
CONSTITUTION ITSELF BUT ALSO ON THE CONCEPT OF A WRITTEN CONSTITUTION
WHICH IS TO SRUVIVE THROUGH THE YEARS AS ORIGINALLY WRITTEN UNLESS
CHANGED THROUGH THE AMENDMENT PROCESS WHICH THE FRAMERS WISELY
PROVIDED.  MOREOVER, WHEN A "POLITICAL THEORY" EMBODIED IN OUR
CONSTITUTION BECOMES OUTDATED, IT SEEMS TO ME THAT A MAJORITY OF THE
NINE MEMBERS OF THIS COURT ARE NOT ONLY WITHOUT CONSTITUTIONAL POWER
BUT ARE FAR LESS QUALIFIED TO CHOOSE A NEW CONSTITUTIONAL POLITICAL
THEORY THAN THE PEOPLE OF THIS COUNTRY PROCEEDING IN THE MANNER
PROVIDED BY ARTICLE V. 

THE PEOPLE HAVE NOT FOUND IT IMPOSSIBLE TO AMEND THEIR CONSTITUTION
TO MEET NEW CONDITIONS.  THE EQUAL PROTECTION CLAUSE ITSELF IS THE
PRODUCT OF THE PEOPLE'S DESIRE TO USE THEIR CONSTITUTIONAL POWER TO
AMEND THE CONSTITUTION TO MEET NEW PROBLEMS.  MOREOVER, THE PEOPLE, IN
SEC. 5 OF THE FOURTEENTH AMENDMENT, DESIGNATED THE GOVERNMENTAL
TRIBUNAL THEY WANTED TO PROVIDE ADDITIONAL RULES TO ENFORCE THE
GUARANTEES OF THAT AMENDMENT.  THE BRANCH OF GOVERNMENT THEY CHOSE WAS
NOT THE JUDICIAL BRANCH BUT THE LEGISLATIVE.  I HAVE NO DOUBT AT ALL
THAT CONGRESS HAS THE POWER UNDER SEC. 5 TO PASS LEGISLATION TO ABOLISH
THE POLL TAX IN ORDER TO PROTECT THE CITIZENS OF THIS COUNTRY IF IT
BELIEVES THAT THE POLL TAX IS BEING USED AS A DEVICE TO DENY VOTERS
EQUAL PROTECTION OF THE LAWS.  SEE MY CONCURRING AND DISSENTING OPINION
IN SOUTH CAROLINA V. KATZENBACH, ANTE, P. 355.  BUT THIS LEGISLATIVE
POWER WHICH WAS GRANTED TO CONGRESS BY SEC. 5 OF THE FOURTEENTH
AMENDMENT IS LIMITED TO CONGRESS.  (FN8)  THIS COURT HAD OCCASION TO
DISCUSS THIS VERY SUBJECT IN EX PARTE VIRGINIA, 100 U.S. 339, 345-346. 
THERE THIS COURT SAID, REFERRING TO THE FIFTH SECTION OF THE
AMENDMENT: 

"ALL OF THE AMENDMENTS DERIVE MUCH OF THEIR FORCE FROM THIS LATTER
PROVISION.  IT IS NOT SAID THE JUDICIAL POWER OF THE GENERAL GOVERNMENT
SHALL EXTEND TO ENFORCING THE PROHIBITIONS AND TO PROTECTING THE RIGHTS
AND IMMUNITIES GUARANTEED.  IT IS NOT SAID THAT BRANCH OF THE
GOVERNMENT SHALL BE AUTHORIZED TO DECLARE VOID ANY ACTION OF A STATE IN
VIOLATION OF THE PROHIBITIONS.  IT IS THE POWER OF CONGRESS WHICH HAS
BEEN ENLARGED.  CONGRESS IS AUTHORIZED TO ENFORCE THE PROHIBITIONS BY
APPROPRIATE LEGISLATION.  SOME LEGISLATION IS CONTEMPLATED TO MAKE THE
AMENDMENTS FULLY EFFECTIVE.  WHATEVER LEGISLATION IS APPROPRIATE, THAT
IS, ADAPTED TO CARRY OUT THE OBJECTS THE AMENDMENTS HAVE IN VIEW,
WHATEVER TENDS TO ENFORCE SUBMISSION TO THE PROHIBITIONS THEY CONTAIN,
AND TO SECURE TO ALL PERSONS THE ENJOYMENT OF PERFECT EQUALITY OF CIVIL
RIGHTS AND THE EQUAL PROTECTION OF THE LAWS AGAINST STATE DENIAL OR
INVASION, IF NOT PROHIBITED, IS BROUGHT WITHIN THE DOMAIN OF
CONGRESSIONAL POWER."    THUS SEC. 5 OF THE FOURTEENTH AMENDMENT IN
ACCORDANCE WITH OUR CONSTITUTIONAL STRUCTURE OF GOVERNMENT AUTHORIZES
THE CONGRESS TO PASS DEFINITIVE LEGISLATION TO PROTECT FOURTEENTH
AMENDMENT RIGHTS WHICH IT HAS DONE MANY TIMES, E.G., 42 U.S.C. SEC.
1971(A).  FOR CONGRESS TO DO THIS FITS IN PRECISELY WITH THE DIVISION
OF POWERS ORIGINALLY ENTRUSTED TO THE THREE BRANCHES OF GOVERNMENT -
EXECUTIVE, LEGISLATIVE, AND JUDICIAL.  BUT FOR US TO UNDERTAKE IN THE
GUISE OF CONSTITUTIONAL INTERPRETATION TO DECIDE THE CONSTITUTIONAL
POLICY QUESTION OF THIS CASE AMOUNTS, IN MY JUDGMENT, TO A PLAIN
EXERCISE OF POWER WHICH THE CONSTITUTION HAS DENIED US BUT HAS
SPECIFICALLY GRANTED TO CONGRESS.  I CANNOT JOIN IN HOLDING THAT THE
VIRGINIA STATE POLL TAX LAW VIOLATES THE EQUAL PROTECTION CLAUSE. 

FN1  ARTICLE V OF THE CONSTITUTION PROVIDES: 

"THE CONGRESS, WHENEVER TWO-THIRDS OF BOTH HOUSES SHALL DEEM IT
NECESSARY, SHALL PROPOSE AMENDMENTS TO THIS CONSTITUTION, OR, ON THE
APPLICATION OF THE LEGISLATURES OF TWO-THIRDS OF THE SEVERAL STATES,
SHALL CALL A CONVENTION FOR PROPOSING AMENDMENTS, WHICH, IN EITHER
CASE, SHALL BE VALID TO ALL INTENTS AND PURPOSES, AS PART OF THIS
CONSTITUTION, WHEN RATIFIED BY THE LEGISLATURES OF THREE-FOURTHS OF THE
SEVERAL STATES, OR BY CONVENTIONS IN THREE-FOURTHS THEREOF, AS THE ONE
OR THE OTHER MODE OF RATIFICATION MAY BE PROPOSED BY THE CONGRESS;
PROVIDED THAT NO AMENDMENT WHICH MAY BE MADE PRIOR TO THE YEAR ONE
THOUSAND EIGHT HUNDRED AND EIGHT SHALL IN ANY MANNER AFFECT THE FIRST
AND FOURTH CLAUSES IN THE NINTH SECTION OF THE FIRST ARTICLE; AND THAT
NO STATE, WITHOUT ITS CONSENT, SHALL BE DEPRIVED OF ITS EQUAL SUFFRAGE
IN THE SENATE." 

FN2  SEE, E.G., ALLIED STORES OF OHIO V. BOWERS, 358 U.S. 522;
GOESAERT V. CLEARY, 335 U.S. 464; SKINNER V. OKLAHOMA, 316 U.S. 535;
MINNESOTA V. PROBATE COURT, 309 U.S. 270; SMITH V. CAHOON, 283 U.S.
553; WATSON V. MARYLAND, 218 U.S. 173. 

FN3  "A STATUTORY DISCRIMINATION WILL NOT BE SET ASIDE AS THE DENIAL
OF EQUAL PROTECTION OF THE LAWS IF ANY STATE OF FACTS REASONABLY MAY BE
CONCEIVED TO JUSTIFY IT."  METROPOLITAN CO. V. BROWNELL, 294 U.S. 580,
584 (STONE, J.). 

FN4  THE OPINION OF THE COURT, IN FOOTNOTE TWO, QUOTES LANGUAGE FROM
A FEDERAL DISTRICT COURT'S OPINION WHICH IMPLIES THAT SINCE A TAX ON
SPEECH WOULD NOT BE CONSTITUTIONALLY ALLOWED A TAX WHICH IS A
PREREQUISITE TO VOTING LIKEWISE CANNOT BE ALLOWED.  BUT A TAX OR ANY
OTHER REGULATION WHICH BURDENS AND ACTUALLY ABRIDGES THE RIGHT TO SPEAK
WOULD, IN MY JUDGMENT, BE A FLAGRANT VIOLATION OF THE FIRST AMENDMENT'S
PROHIBITION AGAINST ABRIDGMENTS OF THE FREEDOM OF SPEECH WHICH
PROHIBITION IS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT.  CF. MURDOCK V. PENNSYLVANIA, 319 U.S. 105.  THERE IS NO
COMPARABLE SPECIFIC CONSTITUTIONAL PROVISION ABSOLUTELY BARRING THE
STATES FROM ABRIDGING THE RIGHT TO VOTE.  CONSEQUENTLY STATES HAVE FROM
THE BEGINNING AND DO NOW QUALIFY THE RIGHT TO VOTE BECAUSE OF AGE,
PRIOR FELONY CONVICTIONS, ILLITERACY, AND VARIOUS OTHER REASONS.  OF
COURSE THE FIRST AND FOURTEENTH AMENDMENTS FORBID ANY STATE FROM
ABRIDGING A PERSON'S RIGHT TO SPEAK BECAUSE HE IS UNDER 21 YEARS OF
AGE, HAS BEEN CONVICTED OF A FELONY, OR IS ILLITERATE. 

FN5  SEE MY DISSENTING OPINION IN ADAMSON V. CALIFORNIA, 332 U.S. 46,
90. 

FN6  SEE FOR ILLUSTRATION MY DISSENTING OPINION IN GRISWOLD V.
CONNECTICUT, 381 U.S. 479, 507, AND CASES CITED THEREIN. 

FN7  IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483, THE COURT TODAY
PURPORTS TO FIND PRECEDENT FOR USING THE EQUAL PROTECTION CLAUSE TO
KEEP THE CONSTITUTION UP TO DATE.  I DID NOT VOTE TO HOLD SEGREGATION
IN PUBLIC SCHOOLS UNCONSTITUTIONAL ON ANY SUCH THEORY.  I THOUGHT WHEN
BROWN WAS WRITTEN, AND I THINK NOW, THAT MR. JUSTICE HARLAN WAS CORRECT
IN 1896 WHEN HE DISSENTED FROM PLESSY V. FERGUSON, 163 U.S. 537, WHICH
HELD THAT IT WAS NOT A DISCRIMINATION PROHIBITED BY THE EQUAL
PROTECTION CLAUSE FOR STATE LAW TO SEGREGATE WHITE AND COLORED PEOPLE
IN PUBLIC FACILITIES, THERE RAILROAD CARS.  I DID NOT JOIN THE OPINION
OF THE COURT IN BROWN ON ANY THEORY THAT SEGREGATION WHERE PRACTICED IN
THE PUBLIC SCHOOLS DENIED EQUAL PROTECTION IN 1954 BUT DID NOT
SIMILARLY DENY IT IN 1868 WHEN THE FOURTEENTH AMENDMENT WAS ADOPTED. 
IN MY JUDGMENT THE HOLDING IN BROWN AGAINST RACIAL DISCRIMINATION WAS
COMPELLED BY THE PURPOSE OF THE FRAMERS OF THE THIRTEENTH, FOURTEENTH
AND FIFTEENTH AMENDMENTS COMPLETELY TO OUTLAW DISCRIMINATION AGAINST
PEOPLE BECAUSE OF THEIR RACE OR COLOR.  SEE THE SLAUGHTER-HOUSE CASES,
16 WALL.  36, 71-72; NIXON V. HERNDON, 273 U.S. 536, 541. 

NOR DOES MALLOY V. HOGAN, 378 U.S. 1, STAND AS PRECEDENT FOR THE
AMENDATORY POWER WHICH THE COURT EXERCISES TODAY.  THE COURT IN MALLOY
DID NOT READ INTO THE CONSTITUTION ITS OWN NOTIONS OF WISE CRIMINAL
PROCEDURE, BUT INSTEAD FOLLOWED THE DOCTRINE OF PALKO V. CONNECTICUT,
302 U.S. 319, AND MADE THE FIFTH AMENDMENT'S UNEQUIVOCAL PROTECTION
AGAINST SELF-INCRIMINATION APPLICABLE TO THE STATES.  I JOINED THE
OPINION OF THE COURT IN MALLOY ON THE BASIS OF MY DISSENT IN ADAMSON V.
CALIFORNIA, SUPRA, IN WHICH I STATED, AT P. 89: 

"IF THE CHOICE MUST BE BETWEEN THE SELECTIVE PROCESS OF THE PALKO
DECISION APPLYING SOME OF THE BILL OF RIGHTS TO THE STATES, OR THE
TWINING RULE APPLYING NONE OF THEM, I WOULD CHOOSE THE PALKO SELECTIVE
PROCESS." 

FN8  BUT SEC. 1 OF THE FOURTEENTH AMENDMENT ITSELF OUTLAWS ANY STATE
LAW WHICH EITHER AS WRITTEN OR AS APPLIED DISCRIMINATES AGAINST VOTERS
ON ACCOUNT OF RACE.  SUCH A LAW CAN NEVER BE RATIONAL.  "STATES MAY DO
A GOOD DEAL OF CLASSIFYING THAT IT IS DIFFICULT TO BELIEVE RATIONAL,
BUT THERE ARE LIMITS, AND IT IS TOO CLEAR FOR EXTENDED ARGUMENT THAT
COLOR CANNOT BE MADE THE BASIS OF A STATUTORY CLASSIFICATION AFFECTING
THE RIGHT TO VOTE SET UP IN THIS CASE."  NIXON V. HERNDON, 273 U.S.
536, 541 (HOLMES, J.). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THE FINAL DEMISE OF STATE POLL TAXES, ALREADY TOTALLY PROSCRIBED BY
THE TWENTY-FOURTH AMENDMENT WITH RESPECT TO FEDERAL ELECTIONS AND
ABOLISHED BY THE STATES THEMSELVES IN ALL BUT FOUR STATES WITH RESPECT
TO STATE ELECTIONS, (FN1) IS PERHAPS IN ITSELF NOT OF GREAT MOMENT. 
BUT THE FACT THAT THE COUP DE GRACE HAS BEEN ADMINISTERED BY THIS COURT
INSTEAD OF BEING LEFT TO THE AFFECTED STATES OR TO THE FEDERAL
POLITICAL PROCESS (FN2) SHOULD BE A MATTER OF CONTINUING CONCERN TO ALL
INTERESTED IN MAINTAINING THE PROPER ROLE OF THIS TRIBUNAL UNDER OUR
SCHEME OF GOVERNMENT. 

I DO NOT PROPOSE TO RETREAD GROUND COVERED IN MY DISSENTS IN REYNOLDS
V. SIMS, 377 U.S. 533, 589, AND CARRINGTON V. RASH, 380 U.S. 89, 97,
AND WILL PROCEED ON THE PREMISE THAT THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT NOW REACHES BOTH STATE APPORTIONMENT (REYNOLDS)
AND VOTER-QUALIFICATION (CARRINGTON) CASES.  MY DISAGREEMENT WITH THE
PRESENT DECISION IS THAT IN HOLDING THE VIRGINIA POLL TAX VIOLATIVE OF
THE EQUAL PROTECTION CLAUSE THE COURT HAS DEPARTED FROM LONG
ESTABLISHED STANDARDS GOVERNING THE APPLICATION OF THAT CLAUSE. 

THE EQUAL PROTECTION CLAUSE PREVENTS STATES FROM ARBITRARILY TREATING
PEOPLE DIFFERENTLY UNDER THEIR LAWS.  WHETHER ANY SUCH DIFFERING
TREATMENT IS TO BE DEEMED ARBITRARY DEPENDS ON WHETHER OR NOT IT
REFLECTS AN APPROPRIATE DIFFERENTIATING CLASSIFICATION AMONG THOSE
AFFECTED; THE CLAUSE HAS NEVER BEEN THOUGHT TO REQUIRE EQUAL TREATMENT
OF ALL PERSONS DESPITE DIFFERING CIRCUMSTANCES.  THE TEST EVOLVED BY
THIS COURT FOR DETERMINING WHETHER AN ASSERTED JUSTIFYING
CLASSIFICATION EXISTS IS WHETHER SUCH A CLASSIFICATION CAN BE DEEMED TO
BE FOUNDED ON SOME RATIONAL AND OTHERWISE CONSTITUTIONALLY PERMISSIBLE
STATE POLICY.  SEE, E.G., POWELL V. PENNSYLVANIA, 127 U.S. 678; BARRETT
V. INDIANA, 229 U.S. 26; WALTERS V. CITY OF ST. LOUIS, 347 U.S. 231;
BAXSTROM V. HEROLD, ANTE, P. 107.  THIS STANDARD REDUCES TO A MINIMUM
THE LIKELIHOOD THAT THE FEDERAL JUDICIARY WILL JUDGE STATE POLICIES IN
TERMS OF THE INDIVIDUAL NOTIONS AND PREDILECTIONS OF ITS OWN MEMBERS,
AND UNTIL RECENTLY IT HAS BEEN FOLLOWED IN ALL KINDS OF "EQUAL
PROTECTION" CASES.  (FN3) 

REYNOLDS V. SIMS, SUPRA, AMONG ITS OTHER BREAKS WITH THE PAST, ALSO
MARKED A DEPARTURE FROM THESE TRADITIONAL AND WISE PRINCIPLES.  UNLESS
ITS "ONE MAN, ONE VOTE" THESIS OF STATE LEGISLATIVE APPORTIONMENT IS TO
BE ATTRIBUTED TO THE UNSUPPORTABLE PROPOSITION THAT "EQUAL PROTECTION"
SIMPLY MEANS INDISCRIMINATE EQUALITY, IT SEEMS INESCAPABLE THAT WHAT
REYNOLDS REALLY REFLECTED WAS BUT THIS COURT'S OWN VIEWS OF HOW MODERN
AMERICAN REPRESENTATIVE GOVERNMENT SHOULD BE RUN.  FOR IT CAN HARDLY BE
THOUGHT THAT NO OTHER METHOD OF APPORTIONMENT MAY BE CONSIDERED
RATIONAL.  SEE THE DISSENTING OPINION OF STEWARD, J., IN LUCAS V. FORTY
FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S. 713, 744, AND MY OWN
DISSENTING OPINION IN REYNOLDS V. SIMS, SUPRA, AT PP. 615-624. 

FOLLOWING REYNOLDS THE COURT IN CARRINGTON V. RASH, 380 U.S. 89,
APPLIED THE TRADITIONAL EQUAL PROTECTION STANDARD IN STRIKING DOWN A
TEXAS STATUTE DISQUALIFYING AS VOTERS IN STATE ELECTIONS CERTAIN
MEMBERS OF THE ARMED FORCES IN THE UNITED STATES.  (FN4)  BUT TODAY IN
HOLDING UNCONSTITUTIONAL STATE POLL TAXES AND PROPERTY QUALIFICATIONS
FOR VOTING AND PRO TANTO OVERRULING BREEDLOVE V. SUTTLES, 302 U.S. 277,
AND BUTLER V. THOMPSON, 341 U.S. 937, THE COURT REVERTS TO THE HIGHLY
SUBJECTIVE JUDICIAL APPROACH MANIFESTED BY REYNOLDS.  IN SUBSTANCE THE
COURT'S ANALYSIS OF THE EQUAL PROTECTION ISSUE GOES NO FURTHER THAN TO
SAY THAT THE ELECTORAL FRANCHISE IS "PRECIOUS" AND "FUNDAMENTAL," ANTE,
P. 670, AND TO CONCLUDE THAT "TO INTRODUCE WEALTH OR PAYMENT OF A FEE
AS A MEASURE OF A VOTER'S QUALIFICATIONS IS TO INTRODUCE A CAPRICIOUS
OR IRRELEVANT FACTOR," ANTE, P. 668.  THESE ARE OF COURSE CAPTIVATING
PHRASES, BUT THEY ARE WHOLLY INADEQUATE TO SATISFY THE STANDARD
GOVERNING ADJUDICATION OF THE EQUAL PROTECTION ISSUE:  IS THERE A
RATIONAL BASIS FOR VIRGINIA'S POLL TAX AS A VOTING QUALIFICATION?  I
THINK THE ANSWER TO THAT QUESTION IS UNDOUBTEDLY "YES."  (FN5) 

PROPERTY QUALIFICATIONS AND POLL TAXES HAVE BEEN A TRADITIONAL PART
OF OUR POLITICAL STRUCTURE.  IN THE COLONIES THE FRANCHISE WAS
GENERALLY A RESTRICTED ONE.  (FN6)  OVER THE YEARS THESE AND OTHER
RESTRICTIONS WERE GRADUALLY LIFTED, PRIMARILY BECAUSE POPULAR THEORIES
OF POLITICAL REPRESENTATION HAD CHANGED.  (FN7)  OFTEN RESTRICTIONS
WERE LIFTED ONLY AFTER WIDE PUBLIC DEBATE.  THE ISSUE OF WOMAN
SUFFRAGE, FOR EXAMPLE, RAISED QUESTIONS OF FAMILY RELATIONSHIPS, OF
PARTICIPATION IN PUBLIC AFFAIRS, OF THE VERY NATURE OF THE TYPE OF
SOCIETY IN WHICH AMERICANS WISHED TO LIVE; EVENTUALLY A CONSENSUS WAS
REACHED, WHICH CULMINATED IN THE NINETEENTH AMENDMENT NO MORE THAN 45
YEARS AGO. 

SIMILARLY WITH PROPERTY QUALIFICATIONS, IT IS ONLY BY FIAT THAT IT
CAN BE SAID, ESPECIALLY IN THE CONTEXT OF AMERICAN HISTORY, THAT THERE
CAN BE NO RATIONAL DEBATE AS TO THEIR ADVISABILITY.  MOST OF THE EARLY
COLONIES HAD THEM; MANY OF THE STATES HAVE HAD THEM DURING MUCH OF
THEIR HISTORIES; (FN8) AND, WHETHER ONE AGREES OR NOT, ARGUMENTS HAVE
BEEN AND STILL CAN BE MADE IN FAVOR OF THEM.  FOR EXAMPLE, IT IS
CERTAINLY A RATIONAL ARGUMENT THAT PAYMENT OF SOME MINIMAL POLL TAX
PROMOTES CIVIC RESPONSIBILITY, WEEDING OUT THOSE WHO DO NOT CARE ENOUGH
ABOUT PUBLIC AFFAIRS TO PAY $1.50 OR THEREABOUTS A YEAR FOR THE
EXERCISE OF THE FRANCHISE.  IT IS ALSO ARGUABLE, INDEED IT WAS PROBABLY
ACCEPTED AS SOUND POLITICAL THEORY BY A LARGE PERCENTAGE OF AMERICANS
THROUGH MOST OF OUR HISTORY, THAT PEOPLE WITH SOME PROPERTY HAVE A
DEEPER STAKE IN COMMUNITY AFFAIRS, AND ARE CONSEQUENTLY MORE
RESPONSIBLE, MORE EDUCATED, MORE KNOWLEDGEABLE, MORE WORTHY OF
CONFIDENCE, THAN THOSE WITHOUT MEANS, AND THAT THE COMMUNITY AND NATION
WOULD BE BETTER MANAGED IF THE FRANCHISE WERE RESTRICTED TO SUCH
CITIZENS.  (FN9)  NONDISCRIMINATORY AND FAIRLY APPLIED LITERACY TESTS,
UPHELD BY THIS COURT IN LASSITER V. NORTHAMPTON ELECTION BOARD, 360
U.S. 45, FIND JUSTIFICATION ON VERY SIMILAR GROUNDS. 

THESE VIEWPOINTS, TO BE SURE, RING HOLLOW ON MOST CONTEMPORARY EARS. 
THEIR LACK OF ACCEPTANCE TODAY IS EVIDENCED BY THE FACT THAT NEARLY ALL
OF THE STATES, LEFT TO THEIR OWN DEVICES, HAVE ELIMINATED PROPERTY OR
POLL-TAX QUALIFICATIONS; BY THE COGNATE FACT THAT CONGRESS AND THREE
QUARTERS OF THE STATES QUICKLY RATIFIED THE TWENTY-FOURTH AMENDMENT;
AND BY THE FACT THAT RULES SUCH AS THE "PAUPER EXCLUSION" IN VIRGINIA
LAW, VA. CONST. SEC.  23, VA. CODE SEC. 24-18, HAVE NEVER BEEN
ENFORCED.  (FN10) 

PROPERTY AND POLL-TAX QUALIFICATIONS, VERY SIMPLY, ARE NOT IN ACCORD
WITH CURRENT EGALITARIAN NOTIONS OF HOW A MODERN DEMOCRACY SHOULD BE
ORGANIZED.  IT IS OF COURSE ENTIRELY FITTING THAT LEGISLATURES SHOULD
MODIFY THE LAW TO REFLECT SUCH CHANGES IN POPULAR ATTITUDES.  HOWEVER,
IT IS ALL WRONG, IN MY VIEW, FOR THE COURT TO ADOPT THE POLITICAL
DOCTRINES POPULARLY ACCEPTED AT A PARTICULAR MOMENT OF OUR HISTORY AND
TO DECLARE ALL OTHERS TO BE IRRATIONAL AND INVIDIOUS, BARRING THEM FROM
THE RANGE OF CHOICE BY REASONABLY MINDED PEOPLE ACTING THROUGH THE
POLITICAL PROCESS.  IT WAS NOT TOO LONG AGO THAT MR. JUSTICE HOLMES
FELT IMPELLED TO REMIND THE COURT THAT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT DOES NOT ENACT THE LAISSEZ-FAIRE THEORY OF
SOCIETY, LOCHNER V. NEW YORK, 198 U.S. 45, 75-76.  THE TIMES HAVE
CHANGED, AND PERHAPS IT IS APPROPRIATE TO OBSERVE THAT NEITHER DOES THE
EQUAL PROTECTION CLAUSE OF THAT AMENDMENT RIGIDLY IMPOSE UPON AMERICA
AN IDEOLOGY OF UNRESTRAINED EGALITARIANISM.  (FN11)    I WOULD AFFIRM
THE DECISION OF THE DISTRICT COURT. 

FN1  ALABAMA, MISSISSIPPI, TEXAS, AND VIRGINIA. 

FN2  IN THE SENATE HEARINGS LEADING TO THE PASSAGE OF THE VOTING
RIGHTS ACT OF 1965, SOME DOUBT WAS EXPRESSED WHETHER STATE POLL TAXES
COULD BE VALIDLY ABOLISHED THROUGH THE EXERCISE OF CONGRESS'
LEGISLATIVE POWER UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT.  SEE
HEARINGS ON S. 1564 BEFORE THE SENATE COMMITTEE ON THE JUDICIARY, 89TH
CONG., 1ST SESS., 194-197 (1965).  I INTIMATE NO VIEW ON THAT
QUESTION. 

FN3  I THINK THE SOMEWHAT DIFFERENT APPLICATION OF THE EQUAL
PROTECTION CLAUSE TO RACIAL DISCRIMINATION CASES FINDS JUSTIFICATION IN
THE FACT THAT INSOFAR AS THAT CLAUSE MAY EMBODY A PARTICULAR VALUE IN
ADDITION TO RATIONALITY, THE HISTORICAL ORIGINS OF THE CIVIL WAR
AMENDMENTS MIGHT ATTRIBUTE TO RACIAL EQUALITY THIS SPECIAL STATUS. 
SEE, E.G., YICK WO V. HOPKINS, 118 U.S. 356; SHELLEY V. KRAEMER, 334
U.S. 1; TAKAHASHI V. FISH & GAME COMM'N, 334 U.S. 410; BROWN V. BOARD
OF EDUCATION, 347 U.S. 483; EVANS V. NEWTON, 382 U.S. 296; CF.
KOREMATSU V. UNITED STATES, 323 U.S. 214, 216.  SEE TUSSMAN & TENBROEK,
THE EQUAL PROTECTION OF THE LAWS, 37 CALIF. L. REV. 341 (1949);
WECHSLER, TOWARD NEUTRAL PRINCIPLES OF CONSTITUTIONAL LAW, 73 HARV. L.
REV. 1, 33 (1959). 

A SIMILAR CHARACTERIZATION OF INDIGENCY AS A "NEUTRAL FACT,"
IRRELEVANT OR SUSPECT FOR PURPOSES OF LEGISLATIVE CLASSIFICATION, HAS
NEVER BEEN ACCEPTED BY THIS COURT.  SEE EDWARDS V. CALIFORNIA, 314 U.S.
160, 184-185 (JACKSON, J., CONCURRING).  GRIFFIN V. ILLINOIS, 351 U.S.
12, REQUIRING FREE TRIAL TRANSCRIPTS FOR INDIGENT APPELLANTS, AND
DOUGLAS V. CALIFORNIA, 372 U.S. 353, REQUIRING THE APPOINTMENT OF
COUNSEL FOR SUCH APPELLANTS, CANNOT FAIRLY BE SO INTERPRETED FOR
ALTHOUGH REFERENCE WAS MADE INDISCRIMINATELY TO BOTH EQUAL PROTECTION
AND DUE PROCESS THE ANALYSIS WAS CAST PRIMARILY IN TERMS OF THE
LATTER. 

MORE EXPLICIT ATTEMPTS TO INFUSE "EQUAL PROTECTION" WITH SPECIFIC
VALUES HAVE BEEN UNAVAILING.  SEE, E.G., PATSONE V. PENNSYLVANIA, 232
U.S. 138 (ALIENAGE); WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379
(SEX); KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS, 330 U.S. 552, 564
(RUTLEDGE, J., DISSENTING)(CONSANGUINITY). 

FN4  SO FAR AS PRESENTLY RELEVANT, MY DISSENT IN THAT CASE RESTED NOT
ON DISAGREEMENT WITH THE EQUAL PROTECTION STANDARDS EMPLOYED BY THE
COURT BUT ONLY ON DISAGREEMENT WITH THEIR APPLICATION IN THAT
INSTANCE.  380 U.S., AT 99-101. 

FN5  I HAVE NO DOUBT THAT POLL TAXES THAT DENY THE RIGHT TO VOTE ON
THE BASIS OF RACE OR COLOR VIOLATE THE FIFTEENTH AMENDMENT AND CAN BE
STRUCK DOWN BY THIS COURT.  THAT QUESTION IS PRESENTED TO US IN BUTTS
V. HARRISON, NO. 655, THE COMPANION CASE DECIDED TODAY.  THE VIRGINIA
POLL TAX IS ON ITS FACE APPLICABLE TO ALL CITIZENS, AND THERE WAS NO
ALLEGATION THAT IT WAS DISCRIMINATORILY ENFORCED.  THE DISTRICT COURT
EXPLICITLY FOUND "NO RACIAL DISCRIMINATION  ...  IN ITS APPLICATION AS
A CONDITION TO VOTING."  240 F. SUPP. 270, 271.  APPELLANT IN BUTTS,
SUPRA, ARGUED FIRST, THAT THE VIRGINIA CONSTITUTIONAL CONVENTION OF
1902, WHICH FRAMED THE POLL-TAX PROVISION, WAS GUIDED BY A DESIRE TO
REDUCE NEGRO SUFFRAGE, AND SECOND, THAT BECAUSE OF THE GENERALLY LOWER
ECONOMIC STANDARD OF NEGROES AS CONTRASTED WITH WHITES IN VIRGINIA THE
TAX DOES IN FACT OPERATE AS A SIGNIFICANT OBSTACLE TO VOTING BY
NEGROES.  THE COURT DOES NOT DEAL WITH THIS FIFTEENTH AMENDMENT
ARGUMENT, AND IT SUFFICES FOR ME TO SAY THAT ON THE RECORD HERE I DO
NOT BELIEVE THAT THE FACTORS ALLUDED TO ARE SUFFICIENT TO INVALIDATE
THIS $1.50 TAX WHETHER UNDER THE FOURTEENTH OR FIFTEENTH AMENDMENT. 

FN6  SEE GENERALLY OGDEN, THE POLL TAX IN THE SOUTH 2 (1958); 1
THORPE, A CONSTITUTIONAL HISTORY OF THE AMERICAN PEOPLE, 1776-1850, AT
92-98 (1898); WILLIAMSON, AMERICAN SUFFRAGE FROM PROPERTY TO DEMOCRACY,
1760-1860, CC. 1-4 (1960). 

FN7  SEE PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES 77-111
(1918); THORPE, OP.  CIT. SUPRA, AT 97, 401; WILLIAMSON, OP. CIT.
SUPRA, AT 138-181. 

FN8  SEE GENERALLY OGDEN, OP. CIT. SUPRA; PORTER, OP. CIT. SUPRA. 

FN9  AT THE CONSTITUTIONAL CONVENTION, FOR EXAMPLE, THERE WAS SOME
SENTIMENT TO PRESCRIBE A FREEHOLD QUALIFICATION FOR FEDERAL ELECTIONS
UNDER ART. IV, SEC. 1.  THE PROPOSED AMENDMENT WAS DEFEATED, IN PART
BECAUSE IT WAS THOUGHT SUFFRAGE QUALIFICATIONS WERE BEST LEFT TO THE
STATES.  SEE II RECORDS OF THE FEDERAL CONVENTION 201-210 (FARRAND ED.
1911).  MADISON'S VIEWS WERE EXPRESSED AS FOLLOWS:  "WHETHER THE
CONSTITUTIONAL QUALIFICATION OUGHT TO BE A FREEHOLD, WOULD WITH HIM
DEPEND MUCH ON THE PROBABLE RECEPTION SUCH A CHANGE WOULD MEET WITH IN
STATES WHERE THE RIGHT WAS NOW EXERCISED BY EVERY DESCRIPTION OF
PEOPLE.  IN SEVERAL OF THE STATES A FREEHOLD WAS NOW THE
QUALIFICATION.  VIEWING THE SUBJECT IN ITS MERITS ALONE, THE
FREEHOLDERS OF THE COUNTRY WOULD BE THE SAFEST DEPOSITORIES OF
REPUBLICAN LIBERTY."  ID., AT 203.  SEE ALSO ARISTOTLE, POLITICS, BKS. 
III, IV; I TOCQUEVILLE, DEMOCRACY IN AMERICA, C. XIII, AT 199-202
(KNOPF ED. 1948). 

FN10  SEE HARPER V. VIRGINIA STATE BOARD OF ELECTIONS, 240 F. SUPP.
270, 271. 

FN11  JUSTICE HOLMES' ADMONITION IS PARTICULARLY APPROPRIATE:  "SOME
OF THESE LAWS EMBODY CONVICTIONS OR PREJUDICES WHICH JUDGES ARE LIKELY
TO SHARE.  SOME MAY NOT.  BUT A CONSTITUTION IS NOT INTENDED TO EMBODY
A PARTICULAR ECONOMIC THEORY, WHETHER OF PATERNALISM AND THE ORGANIC
RELATION OF THE CITIZEN TO THE STATE OR OF LAISSEZ FAIRE.  IT IS MADE
FOR PEOPLE OF FUNDAMENTALLY DIFFERING VIEWS, AND THE ACCIDENT OF OUR
FINDING CERTAIN OPINIONS NATURAL AND FAMILIAR OR NOVEL AND EVEN
SHOCKING OUGHT NOT TO CONCLUDE OUR JUDGMENT UPON THE QUESTION WHETHER
STATUTES EMBODYING THEM CONFLICT WITH THE CONSTITUTION OF THE UNITED
STATES."  198 U.S., AT 75-76. 
..END :





COMMISSIONER OF INTERNAL REVENUE V. TELLIER 383 U.S. 687 


NO. 351.  ARGUED JANUARY 27, 1966.  - DECIDED MARCH 24, 1966.  - 342
F.2D 690, AFFIRMED. 


RESPONDENT SECURITIES DEALER WAS TRIED AND FOUND GUILTY OF VIOLATING
THE SECURITIES ACT OF 1933, THE MAIL FRAUD STATUTE AND OF CONSPIRING TO
VIOLATE THOSE STATUTES.  HIS CONVICTION WAS AFFIRMED ON APPEAL.  HE
CLAIMED A DEDUCTION ON HIS INCOME TAX RETURN FOR LEGAL FEES INCURRED IN
DEFENDING THE PROSECUTION.  ALTHOUGH THE COMMISSIONER CONCEDED THAT THE
FEES WERE ORDINARY AND NECESSARY EXPENSES OF THE RESPONDENT'S
SECURITIES BUSINESS WITHIN THE MEANING OF 26 U.S.C. SEC. 162(A) AND
THEREFORE DEDUCTIBLE UNDER THE LITERAL REQUIREMENTS OF THAT SECTION, HE
DISALLOWED THE DEDUCTION ON THE GROUND OF PUBLIC POLICY.  THE TAX COURT
SUSTAINED HIS POSITION BUT WAS REVERSED BY THE COURT OF APPEALS. 
HELD: 

1.  THE FEDERAL INCOME TAX IS A TAX ON NET INCOME AND IS NOT A
SANCTION AGAINST WRONGDOING.  P. 691. 

2.  DEDUCTIONS OF EXPENSES ENCOMPASSED BY SEC. 162(A), IN THE ABSENCE
OF SPECIFIC LEGISLATION, ARE DISALLOWED ONLY WHERE THEIR ALLOWANCE
WOULD SEVERELY AND IMMEDIATELY FRUSTRATE SHARPLY DEFINED NATIONAL OR
STATE POLICIES PROSCRIBING PARTICULAR FORMS OF CONDUCT.  PP. 693-694. 

3.  WHERE, AS HERE, AN ACCUSED EXERCISES HIS CONSTITUTIONAL RIGHT TO
EMPLOY COUNSEL TO DEFEND AGAINST CRIMINAL CHARGES, THERE IS NO OFFENSE
TO PUBLIC POLICY AND DEDUCTION OF THE EXPENSES OF HIS DEFENSE IS
PROPER.  PP. 694-695. 

COMMISSIONER OF INTERNAL REVENUE V. TELLIER ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER EXPENSES INCURRED BY A
TAXPAYER IN THE UNSUCCESSFUL DEFENSE OF A CRIMINAL PROSECUTION MAY
QUALIFY FOR DEDUCTION FROM TAXABLE INCOME UNDER SEC. 162(A) OF THE
INTERNAL REVENUE CODE OF 1954, WHICH ALLOWS A DEDUCTION OF "ALL THE
ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE
YEAR IN CARRYING ON ANY TRADE OR BUSINESS  ...  ."  (FN1)  THE
RESPONDENT WALTER F. TELLIER WAS ENGAGED IN THE BUSINESS OF
UNDERWRITING THE PUBLIC SALE OF STOCK OFFERINGS AND PURCHASING
SECURITIES FOR RESALE TO CUSTOMERS.  IN 1956 HE WAS BROUGHT TO TRIAL
UPON A 36-COUNT INDICTMENT THAT CHARGED HIM WITH VIOLATING THE FRAUD
(FN3) AND WITH CONSPIRING TO VIOLATE THOSE STATUTES.  (FN4)  HE WAS
FOUND GUILTY ON ALL COUNTS AND WAS SENTENCED TO PAY AN $18,000 FINE AND
TO SERVE FOUR AND HALF YEARS IN PRISON.  THE JUDGMENT OF CONVICTION WAS
AFFIRMED ON APPEAL.  (FN5)  IN HIS UNSUCCESSFUL DEFENSE OF THIS
CRIMINAL PROSECUTION, THE RESPONDENT INCURRED AND PAID $22,964.20 IN
LEGAL EXPENSES IN 1956.  HE CLAIMED A DEDUCTION FOR THAT AMOUNT ON HIS
FEDERAL INCOME TAX RETURN FOR THAT YEAR.  THE COMMISSIONER DISALLOWED
THE DEDUCTION AND WAS SUSTAINED BY THE TAX COURT.  T.C. MEMO.  1963
212, 22 CCH TAX CT. MEM. 1062.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT REVERSED IN A UNANIMOUS EN BANC DECISION, 342 F.2D 690, AND WE
GRANTED CERTIORARI.  382 U.S. 808.  WE AFFIRM THE JUDGMENT OF THE COURT
OF APPEALS. 

THERE CAN BE SERIOUS QUESTION THAT THE PAYMENTS DEDUCTED BY THE
RESPONDENT WERE EXPENSES OF HIS SECURITIES BUSINESS UNDER THE DECISIONS
OF THIS COURT, AND THE COMMISSIONER DOES NOT CONTEND OTHERWISE.  IN
UNITED STATES V. GILMORE, 372 U.S. 39, WE HELD THAT "THE ORIGIN AND
CHARACTER OF THE CLAIM WITH RESPECT TO WHICH AN EXPENSE WAS INCURRED,
RATHER THAN ITS POTENTIAL CONSEQUENCES UPON THE FORTUNES OF THE
TAXPAYER, IS THE CONTROLLING BASIC TEST OF WHETHER THE EXPENSE WAS
'BUSINESS' OR 'PERSONAL'" WITHIN THE MEANING OF SEC. 162(A).  372 U.S.,
AT 49.  CF. KORNHAUSER V. UNITED STATES, 276 U.S. 145, 153; DEPUTY V.
DU PONT, 308 U.S. 488, 494, 496.  THE CRIMINAL CHARGES AGAINST THE
RESPONDENT FOUND THEIR SOURCE IN HIS BUSINESS ACTIVITIES AS A
SECURITIES DEALER.  THE RESPONDENT'S LEGAL FEES, PAID IN DEFENSE
AGAINST THOSE CHARGES, THEREFORE CLEARLY QUALIFY UNDER GILMORE AS
"EXPENSES PAID OR INCURRED  ...  IN CARRYING ON ANY TRADE OR BUSINESS"
WITHIN THE MEANING OF SEC. 162(A). 

THE COMMISSIONER ALSO CONCEDES THAT THE RESPONDENT'S LEGAL EXPENSES
WERE "ORDINARY" AND "NECESSARY" EXPENSES WITHIN THE MEANING OF SEC.
162(A).  OUR DECISIONS HAVE CONSISTENTLY CONSTRUED THE TERM "NECESSARY"
AS IMPOSING ONLY THE MINIMAL REQUIREMENT THAT THE EXPENSE BE
"APPROPRIATE AND HELPFUL" FOR "THE DEVELOPMENT OF THE TAXPAYER'S
BUSINESS."  WELCH V. HELVERING, 290 U.S. 111, 113.  CF. KORNHAUSER V.
UNITED STATES, SUPRA, AT 152; LILLY V. COMMISSIONER, 343 U.S. 90, 93
94; COMMISSIONER V. HEININGER, 320 U.S. 467, 471; MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, 413-415.  THE PRINCIPAL FUNCTION OF THE TERM
"ORDINARY" IN SEC.  162(A) IS TO CLARIFY THE DISTINCTION, OFTEN
DIFFICULT, BETWEEN THOSE EXPENSES THAT ARE CURRENTLY DEDUCTIBLE AND
THOSE THAT ARE IN THE NATURE OF CAPITAL EXPENDITURES, WHICH, IF
DEDUCTIBLE AT ALL, MUST BE AMORTIZED OVER THE USEFUL LIFE OF THE
ASSET.  WELCH V. HELVERING, SUPRA, AT 113-116.  (FN6)  THE LEGAL
EXPENSES DEDUCTED BY THE RESPONDENT WERE NOT CAPITAL EXPENDITURES. 
THEY WERE INCURRED IN HIS DEFENSE AGAINST CHARGES OF PAST CRIMINAL
CONDUCT, NOT IN THE ACQUISITION OF A CAPITAL ASSET.  OUR DECISIONS
ESTABLISH THAT COUNSEL FEES COMPARABLE TO THOSE HERE INVOLVED ARE
ORDINARY BUSINESS EXPENSES, EVEN THOUGH A "LAWSUIT AFFECTING THE SAFETY
OF A BUSINESS MAY HAPPEN ONCE IN A LIFETIME."  WELCH V. HELVERING,
SUPRA, AT 114.  KORNHAUSER V. UNITED STATES, SUPRA, AT 152-153; CF.
TRUST OF BINGHAM V. COMMISSIONER, 325 U.S. 365, 376.  (FN7) 

IT IS THEREFORE CLEAR THAT THE RESPONDENT'S LEGAL FEES WERE
DEDUCTIBLE UNDER SEC. 162(A) IF THE PROVISIONS OF THAT SECTION ARE TO
BE GIVEN THEIR NORMAL EFFECT IN THIS CASE.  THE COMMISSIONER AND THE
TAX COURT DETERMINED, HOWEVER, THAT EVEN THOUGH THE EXPENDITURES MEET
THE LITERAL REQUIREMENTS OF SEC. 162(A), THEIR DEDUCTION MUST
NEVERTHELESS BE DISALLOWED ON THE GROUND OF PUBLIC POLICY.  THAT VIEW
FINDS CONSIDERABLE SUPPORT IN OTHER ADMINISTRATIVE AND JUDICIAL
DECISIONS.  (FN8)  IT FINDS NO SUPPORT, HOWEVER, IN ANY REGULATION OR
STATUTE OR IN ANY DECISION OF THIS COURT, AND WE BELIEVE NO SUCH
"PUBLIC POLICY" EXCEPTION TO THE PLAIN PROVISIONS OF SEC. 162(A) IS
WARRANTED IN THE CIRCUMSTANCES PRESENTED BY THIS CASE. 

WE START WITH THE PROPOSITION THAT THE FEDERAL INCOME TAX IS A TAX ON
NET INCOME, NOT A SANCTION AGAINST WRONGDOING.  THAT PRINCIPLE HAS BEEN
FIRMLY IMBEDDED IN THE TAX STATUTE FROM THE BEGINNING.  ONE FAMILIAR
FACET OF THE PRINCIPLE IS THE TRUISM THAT THE STATUTE DOES NOT CONCERN
ITSELF WITH THE LAWFULNESS OF THE INCOME THAT IT TAXES.  INCOME FROM A
CRIMINAL ENTERPRISE IS TAXED AT A RATE NO HIGHER AND NO LOWER THAN
INCOME FROM MORE CONVENTIONAL SOURCES.  "THE FACT THAT A BUSINESS IS
UNLAWFUL DOES NOT EXEMPT IT FROM PAYING THE TAXES THAT IF LAWFUL IT
WOULD HAVE TO PAY."  UNITED STATES V. SULLIVAN, 274 U.S. 259, 263.  SEE
JAMES V. UNITED STATES, 366 U.S. 213. 

WITH RESPECT TO DEDUCTIONS, THE BASIC RULE, WITH ONLY A FEW LIMITED
AND WELL-DEFINED EXCEPTIONS, IS THE SAME.  DURING THE SENATE DEBATE IN
1913 ON THE BILL THAT BECAME THE FIRST MODERN INCOME TAX LAW,
AMENDMENTS WERE REJECTED THAT WOULD HAVE LIMITED DEDUCTIONS FOR LOSSES
TO THOSE INCURRED IN A "LEGITIMATE" OR "LAWFUL" TRADE OR BUSINESS. 
SENATOR WILLIAMS, WHO WAS IN CHARGE OF THE BILL, STATED ON THE FLOOR OF
THE SENATE THAT: 

"THE OBJECT OF THIS BILL IS TO TAX A MAN'S NET INCOME; THAT IS TO
SAY, WHAT HE HAS AT THE END OF THE YEAR AFTER DEDUCTING FROM HIS
RECEIPTS HIS EXPENDITURES OR LOSSES.  IT IS NOT TO REFORM MEN'S MORAL
CHARACTERS; THAT IS NOT THE OBJECT OF THE BILL AT ALL.  THE TAX IS NOT
LEVIED FOR THE PURPOSE OF RESTRAINING PEOPLE FROM BETTING ON HORSE
RACES OR UPON 'FUTURES,' BUT THE TAX IS FRAMED FOR THE PURPOSE OF
MAKING A MAN PAY UPON HIS NET INCOME, HIS ACTUAL PROFIT DURING THE
YEAR.  THE LAW DOES NOT CARE WHERE HE GOT IT FROM, SO FAR AS THE TAX IS
CONCERNED, ALTHOUGH THE LAW MAY VERY PROPERLY CARE IN ANOTHER WAY."  50
CONG. REC. 3849.  (FN9) 

THE APPLICATION OF THIS PRINCIPLE IS REFLECTED IN SEVERAL DECISIONS
OF THIS COURT.  AS RECENTLY AS COMMISSIONER V. SULLIVAN, 356 U.S. 27,
WE SUSTAINED THE ALLOWANCE OF A DEDUCTION FOR RENT AND WAGES PAID BY
THE OPERATORS OF A GAMBLING ENTERPRISE, EVEN THOUGH BOTH THE BUSINESS
ITSELF AND THE SPECIFIC RENT AND WAGE PAYMENTS THERE IN QUESTION WERE
ILLEGAL UNDER STATE LAW.  IN REJECTING THE COMMISSIONER'S CONTENTION
THAT THE ILLEGALITY OF THE ENTERPRISE REQUIRED DISALLOWANCE OF THE
DEDUCTION, WE HELD THAT, WERE WE TO "ENFORCE AS FEDERAL POLICY THE RULE
ESPOUSED BY THE COMMISSIONER IN THIS CASE, WE WOULD COME CLOSE TO
MAKING THIS TYPE OF BUSINESS TAXABLE ON THE BASIS OF ITS GROSS
RECEIPTS, WHILE ALL OTHER BUSINESS WOULD BE TAXABLE ON THE BASIS OF NET
INCOME.  IF THAT CHOICE IS TO BE MADE, CONGRESS SHOULD DO IT."  ID., AT
29.  IN LILLY V. COMMISSIONER, 343 U.S. 90, THE COURT UPHELD DEDUCTIONS
CLAIMED BY OPTICIANS FOR AMOUNTS PAID TO DOCTORS WHO PRESCRIBED THE
EYEGLASSES THAT THE OPTICIANS SOLD, ALTHOUGH THE COURT WAS CAREFUL TO
DISAVOW "APPROVAL OF THE BUSINESS ETHICS OR PUBLIC POLICY INVOLVED IN
THE PAYMENTS  ...  ."  343 U.S., AT 97.  AND IN COMMISSIONER V.
HEININGER, 320 U.S. 467, A CASE AKIN TO THE ONE BEFORE US, THE COURT
UPHELD DEDUCTIONS CLAIMED BY A DENTIST FOR LAWYER'S FEES AND OTHER
EXPENSES INCURRED IN UNSUCCESSFULLY DEFENDING AGAINST AN ADMINISTRATIVE
FRAUD ORDER ISSUED BY THE POSTMASTER GENERAL. 

DEDUCTION OF EXPENSES FALLING WITHIN THE GENERAL DEFINITION OF SEC.
162(A) MAY, TO BE SURE, BE DISALLOWED BY SPECIFIC LEGISLATION, SINCE
DEDUCTIONS "ARE A MATTER OF GRACE AND CONGRESS CAN, OF COURSE, DISALLOW
THEM AS IT CHOOSES."  COMMISSIONER V. SULLIVAN, 356 U.S., AT 28. 
(FN10)  THE COURT HAS ALSO GIVEN EFFECT TO A PRECISE AND LONGSTANDING
TREASURY REGULATION PROHIBITING THE DEDUCTION OF A SPECIFIED CATEGORY
OF EXPENDITURES; AN EXAMPLE IS LOBBYING EXPENSES, WHOSE
NONDEDUCTIBILITY WAS SUPPORTED BY CONSIDERATIONS NOT HERE PRESENT. 
TEXTILE MILLS CORP. V. COMMISSIONER, 314 U.S. 326; CAMMARANO V. UNITED
STATES, 358 U.S. 498.  BUT WHERE CONGRESS HAS BEEN WHOLLY SILENT, IT IS
ONLY IN EXTREMELY LIMITED CIRCUMSTANCES THAT THE COURT HAS COUNTENANCED
EXCEPTIONS TO THE GENERAL PRINCIPLE REFLECTED IN THE SULLIVAN, LILLY
AND HEININGER DECISIONS.  ONLY WHERE THE ALLOWANCE OF A DEDUCTION WOULD
"FRUSTRATE SHARPLY DEFINED NATIONAL OR STATE POLICIES PROSCRIBING
PARTICULAR TYPES OF CONDUCT" HAVE WE UPHELD ITS DISALLOWANCE. 
COMMISSIONER V. HEININGER, 320 U.S., AT 473.  FURTHER, THE "POLICIES
FRUSTRATED MUST BE NATIONAL OR STATE POLICIES EVIDENCED BY SOME
GOVERNMENTAL DECLARATION OF THEM."  LILLY V. COMMISSIONER, 343 U.S., AT
97.  FINALLY, THE "TEST OF NONDEDUCTIBILITY ALWAYS IS THE SEVERITY AND
IMMEDIACY OF THE FRUSTRATION RESULTING FROM ALLOWANCE OF THE
DEDUCTION."  TANK TRUCK RENTALS V. COMMISSIONER, 356 U.S. 30, 35.  IN
THAT CASE, AS IN HOOVER EXPRESS CO. V. UNITED STATES, 356 U.S. 38, WE
UPHELD THE DISALLOWANCE OF DEDUCTIONS CLAIMED BY TAXPAYERS FOR FINES
AND PENALTIES IMPOSED UPON THEM FOR VIOLATING STATE PENAL STATUTES; TO
ALLOW A DEDUCTION IN THOSE CIRCUMSTANCES WOULD HAVE DIRECTLY AND
SUBSTANTIALLY DILUTED THE ACTUAL PUNISHMENT IMPOSED. 

THE PRESENT CASE FALLS FAR OUTSIDE THAT SHARPLY LIMITED AND CAREFULLY
DEFINED CATEGORY.  NO PUBLIC POLICY IS OFFENDED WHEN A MAN FACED WITH
SERIOUS CRIMINAL CHARGES EMPLOYS A LAWYER TO HELP IN HIS DEFENSE.  THAT
IS NOT "PROSCRIBED CONDUCT."  IT IS HIS CONSTITUTIONAL RIGHT.  CHANDLER
V. FRETAG, 348 U.S. 3.  SEE GIDEON V. WAINWRIGHT, 372 U.S. 335.  IN AN
ADVERSARY SYSTEM OF CRIMINAL JUSTICE, IT IS A BASIC OF OUR PUBLIC
POLICY THAT A DEFENDANT IN A CRIMINAL CASE HAVE COUNSEL TO REPRESENT
HIM. 

CONGRESS HAS AUTHORIZED THE IMPOSITION OF SEVERE PUNISHMENT UPON THOSE
FOUND GUILTY OF THE SERIOUS CRIMINAL OFFENSES WITH WHICH THE RESPONDENT
WAS CHARGED AND OF WHICH HE WAS CONVICTED.  BUT WE CAN FIND NO WARRANT
FOR ATTACHING TO THAT PUNISHMENT AN ADDITIONAL FINANCIAL BURDEN THAT
CONGRESS HAS NEITHER EXPRESSLY NOR IMPLICITLY DIRECTED.  (FN11)  TO
DENY A DEDUCTION FOR EXPENSES INCURRED IN THE UNSUCCESSFUL DEFENSE OF A
CRIMINAL PROSECUTION WOULD IMPOSE SUCH A BURDEN IN A MEASURE DEPENDENT
NOT ON THE SERIOUSNESS OF THE OFFENSE OR THE ACTUAL SENTENCE IMPOSED BY
THE COURT, BUT ON THE COST OF THE DEFENSE AND THE DEFENDANT'S
PARTICULAR TAX BRACKET.  WE DECLINE TO DISTORT THE INCOME TAX LAWS TO
SERVE A PURPOSE FOR WHICH THEY WERE NEITHER INTENDED NOR DESIGNED BY
CONGRESS. 

THE JUDGMENT IS AFFIRMED. 

FN1  "(A)  IN GENERAL.  - THERE SHALL BE ALLOWED AS A DEDUCTION ALL
THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE
YEAR IN CARRYING ON ANY TRADE OR BUSINESS  ...  ."  26 U.S.C. SEC.
162. 

FN2  48 STAT. 84, SEC. 17, AS AMENDED, 15 U.S.C. SEC. 77QA). 

FN3  18 U.S.C. SEC. 1341. 

FN4  18 U.S.C. SEC. 371. 

FN5  UNITED STATES V. TELLIER, 255 F.2D 441 (C.A.2D CIR.). 

FN6  SEE GRISWOLD, AN ARGUMENT AGAINST THE DOCTRINE THAT DEDUCTIONS
SHOULD BE NARROWLY CONSTRUED AS A MATTER OF LEGISLATIVE GRACE, 56 HARV.
L. REV. 1142, 1145; WOLFMAN, PROFESSORS AND THE "ORDINARY AND
NECESSARY" BUSINESS EXPENSE, 112 U. PA. L. REV. 1089, 1111-1112. 

FN7  SEE BROOKES, LITIGATION EXPENSES AND THE INCOME TAX, 12 TAX L.
REV. 241. 

FN8  SEE SARAH BACKER, 1 B.T.A. 214; NORVIN R. LINDHEIM, 2 B.T.A.
229; THOMAS A. JOSEPH, 26 T.C. 562; BURROUGHS BLDG. MATERIAL CO. V.
COMMISSIONER, 47 F.2D 178 (C.A.2D CIR.); COMMISSIONER V. SCHWARTZ, 232
F.2D 94 (C.A. 5TH CIR.); ACKER V. COMMISSIONER, 258 F.2D 568 (C.A. 6TH
CIR.); BELL V. COMMISSIONER, 320 F.2D 953 (C.A. 8TH CIR.); PECKHAM V.
COMMISSIONER, 327 F.2D 855, 856 (C.A. 4TH CIR.); PORT V. UNITED STATES,
143 CT. CL. 334, 163 F. SUPP. 645.  SEE ALSO NOTE, BUSINESS EXPENSES,
DISALLOWANCE, AND PUBLIC POLICY:  SOME PROBLEMS OF SANCTIONING WITH THE
INTERNAL REVENUE CODE, 72 YALE L.J. 108; 4 MERTENS, LAW OF FEDERAL
INCOME TAXATION SEC. 25.49FF.  COMPARE LONGHORN PORTLAND CEMENT CO., 3
T.C. 310; G.C.M. 24377, 1944 CUM. BULL, 93; LAMONT, CONTROVERSIAL
ASPECTS OF ORDINARY AND NECESSARY BUSINESS EXPENSE, 42 TAXES 808, 833
834. 

FN9  IN CHALLENGING THE AMENDMENTS, SENATOR WILLIAMS ALSO STATED: 

"IN OTHER WORDS, YOU ARE GOING TO COUNT THE MAN AS HAVING MONEY WHICH
HE HAS NOT GOT, BECAUSE HE HAS LOST IT IN A WAY THAT YOU DO NOT APPROVE
OF."  50 CONG. REC. 3850. 

FN10  SPECIFIC LEGISLATION DENYING DEDUCTIONS FOR PAYMENTS THAT
VIOLATE PUBLIC POLICY IS NOT UNKNOWN.  E.G., INTERNAL REVENUE CODE OF
1954, SEC. 162(C) (DISALLOWANCE OF DEDUCTION FOR PAYMENTS TO OFFICIALS
AND EMPLOYEES OF FOREIGN COUNTRIES IN CIRCUMSTANCES WHERE THE PAYMENTS
WOULD BE ILLEGAL IF FEDERAL LAWS WERE APPLICABLE; CF. TREAS. REG. SEC.
1.162-18); SEC. 165(D) (DEDUCTION FOR WAGERING LOSSES LIMITED TO EXTENT
OF WAGERING GAINS).  SEE ALSO STABILIZATION ACT OF 1942 SEC. 5(A), 56
STAT. 767, 50 U.S.C. APP. SEC. 965(A) (1946 ED.), DEFENSE PRODUCTION
ACT OF 1950, SEC. 405(A), 64 STAT. 807, AS AMENDED, C. 275, SEC.
104(I), 65 STAT. 136 (1951), 50 U.S.C. APP. SEC. 2105(A) (1952 ED.),
AND DEFENSE PRODUCTION ACT OF 1950, SEC. 405(B), 64 STAT. 807, 50
U.S.C. APP. SEC. 2105(B) (1952 ED.)(GENERAL AUTHORITY IN PRESIDENT TO
PRESCRIBE EXTENT TO WHICH PAYMENTS VIOLATING PRICE AND WAGE REGULATIONS
SHOULD BE DISREGARDED BY GOVERNMENT AGENCIES, INCLUDING THE INTERNAL
REVENUE SERVICE; SEE REV. RUL.  56-180, 1956-1 CUM. BULL.  94).  CF.
TREAS. REG. SEC. 1.162-1(A), WHICH PROVIDES THAT "PENALTY PAYMENTS WITH
RESPECT TO FEDERAL TAXES, WHETHER ON ACCOUNT OF NEGLIGENCE,
DELINQUENCY, OR FRAUD, ARE NOT DEDUCTIBLE FROM GROSS INCOME"; JOINT
COMMITTEE ON INTERNAL REVENUE TAXATION, STAFF STUDY OF INCOME TAX
TREATMENT OF TREBLE DAMAGE PAYMENTS UNDER THE ANTITRUST LAWS, NOV. 1,
1965, P. 16 (PROPOSAL THAT SEC. 162 BE AMENDED TO DENY DEDUCTIONS FOR
CERTAIN FINES, PENALTIES, TREBLE-DAMAGE PAYMENTS, BRIBES, AND
KICKBACKS). 

FN11  CF. PAUL, THE USE OF PUBLIC POLICY BY THE COMMISSIONER IN
DISALLOWING DEDUCTIONS, 1954 S. CALIF. TAX INST.  715, 730-731:  "  ...
IN MORALITY, DESIGNED TO ENCOURAGE VIRTUE AND DISCOURAGE SIN.  IT 'WAS
NOT CONTRIVED AS AN ARM OF THE LAW TO ENFORCE STATE CRIMINAL STATUTES
...  .'  NOR WAS IT CONTRIVED TO IMPLEMENT THE VARIOUS REGULATORY
STATUTES WHICH CONGRESS HAS FROM TIME TO TIME ENACTED.  THE PROVISION
IS MORE MODESTLY CONCERNED WITH 'COMMERCIAL NET INCOME' - A
BUSINESSMAN'S NET ACCRETION IN WEALTH DURING THE TAXABLE YEAR AFTER DUE
ALLOWANCE FOR THE OPERATING COSTS OF THE BUSINESS  ...  .  THERE IS NO
EVIDENCE IN THE SECTION OF AN ATTEMPT TO PUNISH TAXPAYERS  ...  WHEN
THE COMMISSIONER FEELS THAT A STATE OR FEDERAL STATUTE HAS BEEN
FLOUTED.  THE STATUTE HARDLY OPERATES 'IN A VACUUM,' IF IT SERVES ITS
OWN VITAL FUNCTION AND LEAVES OTHER PROBLEMS TO OTHER STATUTES." 
..END :





















INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW), AFL-CIO V. HOOSIER CARDINAL CORP.
383 U.S. 696 


NO. 387.  ARGUED JANUARY 27, 1966.  - DECIDED MARCH 24, 1966.  - 346
F.2D 242, AFFIRMED. 


PETITIONER UNION AND RESPONDENT COMPANY WERE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT WHICH REQUIRED PAYMENT OF ACCUMULATED VACATION PAY
TO QUALIFIED EMPLOYEES UPON TERMINATION OF THEIR EMPLOYMENT.  IN JUNE
1957 THE COMPANY DISCHARGED EMPLOYEES COVERED BY THE AGREEMENT WITHOUT
SUCH PAYMENT.  AN ACTION BROUGHT IN THE INDIANA COURTS TO RECOVER THE
AMOUNTS ALLEGEDLY DUE WAS DISMISSED IN 1960 ON THE GROUND THAT THE
COMPLAINT WAS INSUFFICIENT UNDER STATE LAW.  ALMOST FOUR YEARS LATER
AND ALMOST SEVEN YEARS AFTER THE EMPLOYEES' DISCHARGE, THE UNION
BROUGHT THIS ACTION IN THE FEDERAL DISTRICT COURT UNDER SEC. 301 OF THE
LABOR MANAGEMENT RELATIONS ACT, 1947.  THE ACT CONTAINS NO TIME
LIMITATION UPON THE BRINGING OF AN ACTION UNDER SEC. 301.  THE DISTRICT
COURT VIEWED THE ACTION AS BASED PARTLY ON THE COLLECTIVE BARGAINING
AGREEMENT AND PARTLY ON THE ORAL CONTRACT OF EACH EMPLOYEE AND HELD
THAT INDIANA IN SUCH CASE WOULD APPLY ITS SIX-YEAR STATUTE OF
LIMITATIONS GOVERNING CONTRACTS NOT IN WRITING.  THE COMPLAINT WAS
ACCORDINGLY DISMISSED AS UNTIMELY AND THE COURT OF APPEALS AFFIRMED. 
HELD: 

1.  A UNION MAY PROPERLY SUE UNDER SEC. 301 TO RECOVER WAGES OR
VACATION PAY CLAIMED BY ITS MEMBERS PURSUANT TO A COLLECTIVE BARGAINING
AGREEMENT.  SMITH V. EVENING NEWS ASSN., 371 U.S. 195, 198.  PP. 699
700. 

2.  THE TIMELINESS OF A SUIT UNDER SEC. 301, THERE BEING NO GOVERNING
FEDERAL PROVISION, IS TO BE DETERMINED, AS A MATTER OF FEDERAL LAW, BY
REFERENCE TO THE APPROPRIATE STATE STATUTE OF LIMITATIONS.  PP. 701
704. 

(A)  THE FACT THAT CONGRESS DID NOT PROVIDE A UNIFORM LIMITATIONS
PROVISIONS FOR SEC. 301 SUITS DOES NOT REQUIRE THAT THE COURTS INVENT
ONE.  P. 703. 

(B)  STATE STATUTES HAVE REPEATEDLY SUPPLIED THE PERIODS OF
LIMITATION FOR FEDERAL CAUSES OF ACTION WHEN FEDERAL LEGISLATION HAS
BEEN SILENT.  PP. 703-704. 

3.  THE CHARACTERIZATION OF THIS SUIT AS ONE NOT EXCLUSIVELY BASED ON
A WRITTEN CONTRACT, AND THE APPLICATION OF THE INDIANA SIX-YEAR STATUTE
OF LIMITATIONS, DO NOT CONFLICT WITH FEDERAL LABOR POLICY.  PP. 705
707. 

4.  THE STATUTE OF LIMITATIONS WAS NOT TOLLED IN THIS CASE BY THE
PRIOR LITIGATION.  BURNETT V. NEW YORK CENTRAL R. CO., 380 U.S. 424,
DISTINGUISHED.  PP. 707-708. 

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW), AFL-CIO V. HOOSIER CARDINAL CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

JURISDICTION UPON THE FEDERAL DISTRICT COURTS OVER SUITS UPON
COLLECTIVE BARGAINING CONTRACTS.  (FN1)  NOWHERE IN THE ACT, HOWEVER,
IS THERE A PROVISION FOR ANY TIME LIMITATION UPON THE BRINGING OF AN
ACTION UNDER SEC. 301.  THE QUESTIONS PRESENTED BY THIS CASE ARISE
BECAUSE OF THE ABSENCE OF SUCH A PROVISION. 

THE PETITIONER UNION AND THE RESPONDENT COMPANY WERE PARTIES TO A
COLLECTIVE BARGAINING CONTRACT WITHIN THE PURVIEW OF SEC. 301.  THE
CONTRACT CONTAINED A SECTION GOVERNING VACATIONS.  ONE CLAUSE IN THIS
"EMPLOYEES WHO QUALIFIED FOR A VACATION IN THE PREVIOUS YEAR AND WHOSE
EMPLOYMENT IS TERMINATED FOR ANY REASON BEFORE THE VACATION IS TAKEN
WILL BE PAID THAT VACATION AT TIME OF TERMINATION."  ON JUNE 1, 1957,
PRIOR TO THE EXPIRATION OF THE CONTRACT, THE COMPANY TERMINATED THE
EMPLOYMENT OF EMPLOYEES COVERED BY THE AGREEMENT, BUT IT DID NOT PAY
THEM ANY ACCUMULATED VACATION PAY.  SINCE THAT DATE, TWO LAWSUITS HAVE
BEEN BROUGHT TO RECOVER AMOUNTS ALLEGEDLY DUE.  THE FIRST WAS A CLASS
ACTION IN EARLY 1958, BROUGHT AGAINST THE COMPANY IN AN INDIANA COURT,
BUT THE COURT RULED THAT SUCH AN ACTION WAS IMPERMISSIBLE UNDER INDIANA
LAW.  IN AN ATTEMPT TO REMEDY THIS PLEADING DEFECT, THE FORMER
EMPLOYEES ASSIGNED THEIR VACATION PAY CLAIMS TO A UNION REPRESENTATIVE
WHO THEN FILED AN AMENDED COMPLAINT, BUT THIS FORM OF ACTION, TOO, WAS
HELD IMPROPER UNDER INDIANA LAW.  THEREAFTER, BY FURTHER AMENDED
COMPLAINTS, THE EMPLOYEES SOUGHT TO REFORM AND REINSTITUTE THE CLASS
ACTION, BUT ONCE AGAIN THE TRIAL COURT HELD THE COMPLAINT INSUFFICIENT
AS A MATTER OF STATE LAW.  THE COURT DISMISSED THE SUIT IN JUNE 1960,
AND THE JUDGMENT OF DISMISSAL WAS AFFIRMED ON APPEAL.  JOHNSON V.
HOOSIER CARDINAL CORP., 134 IND. 477, 189 N.E.2D 592. 

ALMOST FOUR YEARS AFTER THE DISMISSAL OF THAT LAWSUIT BY THE INDIANA
TRIAL COURT, AND ALMOST SEVEN YEARS AFTER THE EMPLOYEES HAD LEFT THE
COMPANY, THE UNION FILED THE PRESENT ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA.  ON THE COMPANY'S
MOTION, THE TRIAL COURT DISMISSED THE COMPLAINT, CONCLUDING THAT THE
SUIT WAS BARRED BY A SIX-YEAR INDIANA STATUTE OF LIMITATIONS.  THE
COURT REGARDED THIS ACTION AS BASED PARTLY UPON THE WRITTEN COLLECTIVE
BARGAINING AGREEMENT AND PARTLY UPON THE ORAL EMPLOYMENT CONTRACT EACH
EMPLOYEE HAD MADE, AND IT HELD THAT INDIANA WOULD APPLY TO SUCH A
HYBRID ACTION ITS SIX-YEAR STATUTE GOVERNING CONTRACTS NOT IN WRITING. 
IND.  STAT. ANN. SEC. 2-601 (1965 SUPP.).  235 F. SUPP. 183.  THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED, 346 F.2D 242, AND WE
GRANTED CERTIORARI, 382 U.S. 808. 

WE NOTE AT THE OUTSET THAT THIS ACTION WAS PROPERLY BROUGHT BY THE
UNION UNDER SEC. 301.  THERE IS NO MERIT TO THE CONTENTION THAT A UNION
MAY NOT SUE TO RECOVER WAGES OR VACATION PAY CLAIMED BY ITS MEMBERS
PURSUANT TO THE TERMS OF A COLLECTIVE BARGAINING CONTRACT.  SUCH A SUIT
IS AMONG THOSE "SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER
AND A LABOR ORGANIZATION" THAT SEC. 301 WAS DESIGNED TO PERMIT.  THIS
CONCLUSION IS UNIMPAIRED BY THE FACT THAT EACH WORKER'S CLAIM MAY ALSO
DEPEND UPON THE EXISTENCE OF HIS INDIVIDUAL CONTRACT OF EMPLOYMENT. 
SEE J.I.  CASE CO. V. LABOR BOARD, 321 U.S. 332, 335-336.  IN SMITH V.
EVENING NEWS ASSN., 371 U.S. 195, WE REJECTED THE VIEW, ONCE HELD FOR
VARYING REASONS BY A MAJORITY OF THIS COURT, ASSOCIATION OF
WESTINGHOUSE SALARIED EMPLOYEES V. WESTINGHOUSE CORP., 348 U.S. 437,
"THAT SEC. 301 DID NOT GIVE THE  ...  COURTS JURISDICTION OVER A SUIT
BROUGHT BY A UNION TO ENFORCE EMPLOYEE RIGHTS  ...  CHARACTERIZED AS
... ARISING 'FROM SEPARATE HIRING CONTRACTS BETWEEN THE EMPLOYER AND
EACH EMPLOYEE.'"  371 U.S., AT 198.  ALTHOUGH THE SMITH CASE WAS
BROUGHT BY AN INDIVIDUAL WORKER, THERE IS EVERY REASON TO RECOGNIZE THE
UNION'S STANDING TO VINDICATE EMPLOYEE RIGHTS UNDER A CONTRACT THE
UNION OBTAINED.  SUCH RECOGNITION IS FULLY CONSISTENT WITH THE LANGUAGE
OF SEC. 301(B):  "ANY  ...  LABOR ORGANIZATION MAY SUE  ...  IN BEHALF
OF THE EMPLOYEES WHOM IT REPRESENTS IN THE COURTS OF THE UNITED
STATES."  61 STAT. 156, 29 U.S.C.  SEC. 185(B) (1964 ED.).  (FN2)  AND
INDEED, THE UNION'S STANDING TO VINDICATE EMPLOYEE RIGHTS UNDER SEC.
301 IMPLEMENTS NO MORE THAN THE ESTABLISHED DOCTRINE THAT THE UNION'S
ROLE IN THE COLLECTIVE BARGAINING PROCESS DOES NOT END WITH THE MAKING
OF THE CONTRACT.  (FN3) 

SINCE THIS SUIT WAS PROPERLY BROUGHT UNDER SEC. 301, THE QUESTION OF
ITS TIMELINESS IS SQUARELY PRESENTED.  IT IS CLEARLY A FEDERAL
QUESTION, FOR IN SEC. 301 SUITS THE APPLICABLE LAW IS "FEDERAL LAW,
WHICH THE COURTS MUST FASHION FROM THE POLICY OF OUR NATIONAL LABOR
LAWS."  TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 456.  RELYING
UPON THAT STATEMENT AND UPON THE COORDINATE PRINCIPLE THAT
"INCOMPATIBLE DOCTRINES OF LOCAL LAW MUST GIVE WAY TO PRINCIPLES OF
FEDERAL LABOR LAW," TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S. 95,
102, THE UNION CONTENDS THAT THIS SUIT CANNOT BE BARRED BY A STATUTE OF
LIMITATIONS ENACTED BY A STATE.  WE ARE URGED INSTEAD TO DEVISE A
UNIFORM TIME LIMITATION TO CLOSE THE STATUTORY GAP LEFT BY CONGRESS. 
BUT THE TEACHING OF OUR CASES DOES NOT REQUIRE SO BALD A FORM OF
JUDICIAL INNOVATION.  LINCOLN MILLS INSTRUCTS THAT, IN FASHIONING
FEDERAL LAW, THE "RANGE OF JUDICIAL INVENTIVENESS WILL BE DETERMINED BY
THE NATURE OF THE PROBLEM."  353 U.S., AT 457.  WE DO NOT QUESTION THAT
THERE ARE PROBLEMS SO VITAL TO THE IMPLEMENTATION OF FEDERAL LABOR
POLICY THAT THEY WILL COMMAND A HIGH DEGREE OF INVENTIVENESS FROM THE
COURTS.  THE PROBLEM PRESENTED HERE, HOWEVER, IS NOT OF THAT NATURE. 

IT IS TRUE THAT IF STATE LIMITATIONS PROVISIONS GOVERN SEC. 301
SUITS, THESE SUITS WILL LACK A UNIFORM STANDARD OF TIMELINESS.  IT IS
ALSO TRUE THAT THE SUBJECT MATTER OF SEC. 301 IS "PECULIARLY ONE THAT
CALLS FOR UNIFORM LAW."  TEAMSTERS LOCAL V. LUCAS FLOUR CO., SUPRA, AT
103.  OUR CASES HAVE DEFINED THE NEED FOR UNIFORMITY, HOWEVER, IN TERMS
THAT ARE LARGELY INAPPLICABLE HERE: 

"THE POSSIBILITY THAT INDIVIDUAL CONTRACT TERMS MIGHT HAVE DIFFERENT
MEANINGS UNDER TWO SYSTEMS OF LAW WOULD INEVITABLY EXERT A DISRUPTIVE
INFLUENCE UPON BOTH THE NEGOTIATION AND ADMINISTRATION OF COLLECTIVE
AGREEMENTS.  BECAUSE NEITHER PARTY COULD BE CERTAIN OF THE RIGHTS WHICH
IT HAD OBTAINED OR CONCEDED, THE PROCESS OF NEGOTIATING AN AGREEMENT
WOULD BE MADE IMMEASURABLY MORE DIFFICULT BY THE NECESSITY OF TRYING TO
FORMULATE CONTRACT PROVISIONS IN SUCH A WAY AS TO CONTAIN THE SAME
MEANING UNDER TWO OR MORE SYSTEMS OF LAW WHICH MIGHT SOMEDAY BE INVOKED
IN ENFORCING THE CONTRACT.  ONCE THE COLLECTIVE BARGAIN WAS MADE, THE
POSSIBILITY OF CONFLICTING SUBSTANTIVE INTERPRETATION UNDER COMPETING
LEGAL SYSTEMS WOULD TEND TO STIMULATE AND PROLONG DISPUTES AS TO ITS
INTERPRETATION.   INDEED, THE EXISTENCE OF POSSIBLY CONFLICTING LEGAL
CONCEPTS MIGHT SUBSTANTIALLY IMPEDE THE PARTIES' WILLINGNESS TO AGREE
TO CONTRACT TERMS PROVIDING FOR FINAL ARBITRAL OR JUDICIAL RESOLUTION
OF DISPUTES. 

"  ...  THE ORDERING AND ADJUSTING OF COMPETING INTERESTS THROUGH A
PROCESS OF FREE AND VOLUNTARY COLLECTIVE BARGAINING IS THE KEYSTONE OF
THE FEDERAL SCHEME TO PROMOTE INDUSTRIAL PEACE.  STATE LAW WHICH
FRUSTRATES THE EFFORT OF CONGRESS TO STIMULATE THE SMOOTH FUNCTIONING
OF THAT PROCESS THUS STRIKES AT THE VERY CORE OF FEDERAL LABOR
POLICY."  TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S. 95, 103-104. 

THE NEED FOR UNIFORMITY, THEN, IS GREATEST WHERE ITS ABSENCE WOULD
THREATEN THE SMOOTH FUNCTIONING OF THOSE CONSENSUAL PROCESSES THAT
FEDERAL LABOR LAW IS CHIEFLY DESIGNED TO PROMOTE - THE FORMATION OF THE
COLLECTIVE AGREEMENT AND THE PRIVATE SETTLEMENT OF DISPUTES UNDER IT.
FOR THE MOST PART, STATUTES OF LIMITATIONS COME INTO PLAY ONLY WHEN
THESE PROCESSES HAVE ALREADY BROKEN DOWN.  LACK OF UNIFORMITY IN THIS
AREA IS THEREFORE UNLIKELY TO FRUSTRATE IN ANY IMPORTANT WAY THE
ACHIEVEMENT OF ANY SIGNIFICANT GOAL OF LABOR POLICY.  THUS, ALTHOUGH A
UNIFORM LIMITATIONS PROVISION FOR SEC. 301 SUITS MIGHT WELL CONSTITUTE
A DESIRABLE STATUTORY ADDITION, THERE IS NO JUSTIFICATION FOR THE
DRASTIC SORT OF JUDICIAL LEGISLATION THAT IS URGED UPON US.  (FN4)  SEE
SMITH V. EVENING NEWS ASSN., SUPRA, AT 203 (BLACK, J., DISSENTING). 

THAT CONGRESS DID NOT PROVIDE A UNIFORM LIMITATIONS PROVISION FOR
SEC. 301 SUITS IS NOT AN ARGUMENT FOR JUDICIALLY CREATING ONE, UNLESS
WE IGNORE THE CONTEXT OF THIS LEGISLATIVE OMISSION.  IT IS CLEAR THAT
CONGRESS GAVE ATTENTION TO LIMITATIONS PROBLEMS IN THE LABOR MANAGEMENT
RELATIONS ACT, 1947; IT ENACTED A SIX MONTHS' PROVISION TO GOVERN
UNFAIR LABOR PRACTICE PROCEEDINGS, 61 STAT. 146, 29 U.S.C. SEC. 160(B)
(1964 ED.), AND IT DID SO ONLY AFTER APPRECIABLE CONTROVERSY.  (FN5)
IN THIS CONTEXT, AND AGAINST THE BACKGROUND OF THE RELATIONSHIP BETWEEN
CONGRESS AND THE COURTS ON THE QUESTION OF LIMITATIONS PROVISIONS, IT
CANNOT BE FAIRLY INFERRED THAT WHEN CONGRESS LEFT SEC. 301 WITHOUT A
UNIFORM TIME LIMITATION, IT DID SO IN THE EXPECTATION THAT THE COURTS
WOULD INVENT ONE.  AS EARLY AS 1830, THIS COURT HELD THAT STATE
STATUTES OF LIMITATIONS GOVERN THE TIMELINESS OF FEDERAL CAUSES OF
ACTION UNLESS CONGRESS HAS SPECIFICALLY PROVIDED OTHERWISE.  MCCLUNY V.
SILLIMAN, 3 PET. 270, 277.  IN 1895, THE QUESTION WAS RE-EXAMINED IN
ANOTHER CONTEXT, BUT THE CONCLUSION REMAINED FIRM.  CAMPBELL V.
HAVERHILL, 155 U.S. 610.  SINCE THAT TIME, STATE STATUTES HAVE
REPEATEDLY SUPPLIED THE PERIODS OF LIMITATIONS FOR FEDERAL CAUSES OF
ACTION WHEN FEDERAL LEGISLATION HAS BEEN SILENT ON THE QUESTION.  (FN6)
E.G., MCCLAINE V. RANKIN, 197 U.S. 154, COPE V. ANDERSON, 331 U.S. 461
(NATIONAL BANK ACT); CHATTANOOGA FOUNDRY V. ATLANTA, 203 U.S. 390
(SHERMAN ACT); O'SULLIVAN V. FELIX, 233 U.S. 318 (CIVIL RIGHTS ACT OF
1870); ENGLANDER MOTORS, INC. V. FORD MOTOR CO., 293 F.2D 802 (C.A.
6TH CIR.)(CLAYTON ACT); BUT SEE HOLMBERG V. ARMBRECHT, 327 U.S. 392
(FEDERAL FARM LOAN ACT).  YET WHEN CONGRESS HAS DISAGREED WITH SUCH AN
INTERPRETATION OF ITS SILENCE, IT HAS SPOKEN TO OVERTURN IT BY ENACTING
A UNIFORM PERIOD OF LIMITATIONS.  E.G., 69 STAT. 283, 15 U.S.C.  SEC.
15B (1964 ED.)(CLAYTON ACT); 35 U.S.C. SEC. 286 (PATENT ACT).  SEE ALSO
HERGET V.  CENTRAL BANK CO., 324 U.S. 4.  AGAINST THIS BACKGROUND, WE
CANNOT TAKE THE OMISSION IN THE PRESENT STATUTE AS A LICENSE TO
JUDICIALLY DEVISE A UNIFORM TIME LIMITATION FOR SEC. 301 SUITS. 

ACCORDINGLY, SINCE NO FEDERAL PROVISION GOVERNS, WE HOLD THAT THE
TIMELINESS OF A SEC. 301 SUIT, SUCH AS THE PRESENT ONE, IS TO BE
DETERMINED, AS A MATTER OF FEDERAL LAW, BY REFERENCE TO THE APPROPRIATE
STATE STATUTE OF LIMITATIONS.  (FN7)  THIS LEAVES TWO SUBSIDIARY
QUESTIONS TO BE DECIDED.  WHICH OF INDIANA'S LIMITATIONS PROVISIONS
GOVERNS?  (FN8)  DOES ANY TOLLING PRINCIPLE PRESERVE THE TIMELINESS OF
THIS ACTION? 

THE UNION ARGUES THAT IF THE TIMELINESS OF THIS ACTION IS TO BE
DETERMINED BY REFERENCE TO INDIANA STATUTES, FEDERAL LAW PRECLUDES
REFERENCE TO THE INDIANA SIX-YEAR PROVISION GOVERNING CONTRACTS NOT IN
WRITING.  REFERENCE MUST BE MADE INSTEAD, IT IS URGED, TO THE INDIANA
20-YEAR PROVISION GOVERNING WRITTEN CONTRACTS.  IND. STAT. ANN. SEC. 2
602 (1965 SUPP.).  THIS CONTENTION RESTS ON THE VIEW THAT UNDER FEDERAL
LAW THIS SEC. 301 SUIT MUST BE REGARDED AS EXCLUSIVELY BOTTOMED UPON
THE WRITTEN COLLECTIVE BARGAINING AGREEMENT.  WE AGREE THAT THE
CHARACTERIZATION OF THIS ACTION FOR THE PURPOSE OF SELECTING THE
APPROPRIATE STATE LIMITATIONS PROVISION IS ULTIMATELY A QUESTION OF
FEDERAL LAW.  TEXTILE WORKERS V. LINCOLN MILLS, SUPRA; MCCLAINE V.
RANKIN, SUPRA.  BUT THERE IS NO REASON TO REJECT THE CHARACTERIZATION
THAT STATE LAW WOULD IMPOSE UNLESS THAT CHARACTERIZATION IS
UNREASONABLE OR OTHERWISE INCONSISTENT WITH NATIONAL LABOR POLICY.  CF.
RECONSTRUCTION FINANCE CORP. V. BEAVER COUNTY, 328 U.S. 204, 210; DE
SYLVA V. BALLENTINE, 351 U.S. 570, 580-582. 

APPLYING THIS PRINCIPLE, WE CANNOT AGREE THAT FEDERAL LAW REQUIRES
THAT THIS ACTION BE REGARDED AS EXCLUSIVELY BASED UPON A WRITTEN
CONTRACT.  FOR PURPOSES OF SEC. 301 JURISDICTION, WE HAVE REJECTED THE
VIEW THAT A SUIT SUCH AS THIS IS BASED SOLELY UPON THE SEPARATE HIRING
CONTRACTS, FREQUENTLY ORAL, BETWEEN THE EMPLOYER AND EACH EMPLOYEE. 
SMITH V. EVENING NEWS ASSN., SUPRA.  IT DOES NOT FOLLOW, HOWEVER, THAT
THE SEPARATE CONTRACTS OF EMPLOYMENT MAY NOT BE TAKEN INTO ACCOUNT IN
CHARACTERIZING THE NATURE OF A SPECIFIC SEC. 301 SUIT FOR THE PURPOSE
OF SELECTING THE APPROPRIATE STATE LIMITATIONS PROVISION.  INDEED, AS
THE PRESENT CASE INDICATES, CONSIDERATION OF THE SEPARATE CONTRACTS FOR
THAT PURPOSE IS ENTIRELY ACCEPTABLE.  THE PETITIONER SEEKS DAMAGES
BASED UPON AN ALLEGED BREACH OF THE VACATION PAY CLAUSE IN A WRITTEN
COLLECTIVE BARGAINING AGREEMENT.  PROOF OF THE BREACH AND OF THE
MEASURE OF DAMAGES, HOWEVER, BOTH DEPEND UPON PROOF OF THE EXISTENCE
AND DURATION OF SEPARATE EMPLOYMENT CONTRACTS BETWEEN THE EMPLOYER AND
EACH OF THE AGGRIEVED EMPLOYEES.  HENCE, THIS SEC.  301 SUIT MAY FAIRLY
BE CHARACTERIZED AS ONE NOT EXCLUSIVELY BASED UPON A WRITTEN CONTRACT. 
MOREOVER, THE CHARACTERIZATION THAT INDIANA LAW IMPOSES UPON THIS
ACTION DOES NOT LEAD TO ANY CONFLICT WITH FEDERAL LABOR POLICY. 
INDEED, TO THE EXTENT THAT A POLICY IS MANIFEST IN THE LABOR MANAGEMENT
RELATIONS ACT, IT SUPPORTS ACCEPTANCE OF THE CHARACTERIZATION ADOPTED
HERE.  THE SIX MONTHS' PROVISION GOVERNING UNFAIR LABOR PRACTICE
PROCEEDINGS, 61 STAT. 146, 29 U.S.C. SEC. 160(B), SUGGESTS THAT
RELATIVELY RAPID DISPOSITION OF LABOR DISPUTES IS A GOAL OF FEDERAL
LABOR LAW.  SINCE STATE STATUTES OF LIMITATIONS GOVERNING CONTRACTS NOT
EXCLUSIVELY IN WRITING ARE GENERALLY SHORTER THAN THOSE APPLICABLE TO
WHOLLY WRITTEN AGREEMENTS, THEIR APPLICABILITY TO SEC. 301 ACTIONS
COMPORTS WITH THAT GOAL.  THERE MAY, OF COURSE, BE SEC. 301 ACTIONS
THAT CAN ONLY BE CHARACTERIZED FAIRLY AS BASED EXCLUSIVELY UPON A
WRITTEN AGREEMENT.  BUT SINCE MANY SEC. 301 ACTIONS FOR WAGES OR OTHER
INDIVIDUAL BENEFITS WILL CONCERN EMPLOYMENT CONTRACTS OF THE SORT
INVOLVED HERE, THERE IS NO REASON TO INHIBIT THE ACHIEVEMENT OF AN
IDENTIFIABLE GOAL OF LABOR POLICY BY PRECLUDING APPLICATION OF THE
GENERALLY SHORTER LIMITATIONS PROVISIONS.  (FN9) 

ACCORDINGLY, WE ACCEPT THE DISTRICT COURT'S APPLICATION OF THE SIX
YEAR INDIANA STATUTE OF LIMITATIONS TO THIS ACTION.  CF. BERNHARDT  V.
POLYGRAPHIC CO., 350 U.S. 198, 204-205; STEELE V. GENERAL MILLS, 329
U.S. 433, 438.  THUS, SINCE THIS FEDERAL LAWSUIT WAS NOT FILED UNTIL
ALMOST SEVEN YEARS AFTER THE CAUSE OF ACTION ACCRUED, THE CAUSE IS
BARRED BY THE SIX-YEAR STATUTE UNLESS THAT STATUTE WAS SOMEHOW TOLLED
BY REASON OF THE PARTICULARIZED CIRCUMSTANCES OF THIS CASE.  (FN10) 

THE CONTENTION THAT SOME TOLLING PRINCIPLE SAVES THE LIFE OF THIS
ACTION WAS RAISED FOR THE FIRST TIME IN THIS COURT.  IN ANY EVENT, WE
FIND THE CONTENTION WITHOUT MERIT.  IN BURNETT V. NEW YORK CENTRAL R.
CO., 380 U.S. 424, WE HELD THAT THE BRINGING OF A TIMELY ACTION UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT IN A STATE COURT, EVEN THOUGH
VENUE WAS IMPROPER, SERVED TO TOLL THE STATUTE OF LIMITATIONS CONTAINED
IN THAT ACT.  THE PRIMARY UNDERPINNING OF BURNETT, HOWEVER, IS WHOLLY
LACKING HERE.  AS THE COURT NOTED IN THAT CASE, A TOLLING PRINCIPLE WAS
NECESSARY TO IMPLEMENT THE NATIONAL POLICY OF A UNIFORM TIME BAR
CLEARLY EXPRESSED BY CONGRESS WHEN IT ENACTED THE FELA LIMITATIONS
PROVISION.  380 U.S., AT 434.  SECTION 301 OF THE LABOR MANAGEMENT
RELATIONS ACT ESTABLISHES NO SUCH POLICY OF UNIFORMITY EXPRESSED IN A
NATIONAL LIMITATIONS PROVISION.  MOREOVER, UNLIKE THE PLAINTIFF IN
BURNETT WHO COULD NO LONGER BRING A TIMELY FEDERAL ACTION AFTER THE
STATE COURT DISMISSED HIS COMPLAINT, THE UNION HERE HAD A FULL THREE
YEARS TO BRING THIS LAWSUIT IN FEDERAL COURT AFTER THE DISMISSAL OF THE
STATE COURT ACTION.  (FN11)  UNDER THESE CIRCUMSTANCES, WE HAVE NO
DIFFICULTY IN CONCLUDING THAT THIS CAUSE OF ACTION EXPIRED IN JUNE
1963, SIX YEARS AFTER IT AROSE.  AFFIRMED. 

FN1  WE USE THE TERM "COLLECTIVE BARGAINING CONTRACTS" FOR
CONVENIENCE ONLY, AND DO NOT INTEND TO SUGGEST THAT SEC. 301 IS LIMITED
TO SUCH CONTRACTS.  SEE RETAIL CLERKS V. LION DRY GOODS, 369 U.S. 17. 

"(A)  SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THIS ACT, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHICH REPRESENTS EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE AS DEFINED IN THIS CHAPTER ACT AND ANY
EMPLOYER WHOSE ACTIVITIES AFFECT COMMERCE AS DEFINED IN THIS CHAPTER
SHALL BE BOUND BY THE ACTS OF AGENTS.  ANY SUCH LABOR ORGANIZATION MAY
SUE OR BE SUED AS AN ENTITY AND IN BEHALF OF THE EMPLOYEES WHOM IT
REPRESENTS IN THE COURTS OF THE UNITED STATES.  ANY MONEY JUDGMENT
AGAINST A LABOR ORGANIZATION IN A DISTRICT COURT OF THE UNITED STATES
SHALL BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND
AGAINST ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL
MEMBER OR HIS ASSETS. 

"(C)  FOR THE PURPOSES OF ACTIONS AND PROCEEDINGS BY OR AGAINST LABOR
ORGANIZATIONS IN THE DISTRICT COURTS OF THE UNITED STATES, DISTRICT
COURTS SHALL BE DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1)
IN THE DISTRICT IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL
OFFICE, OR (2) IN ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR
AGENTS ARE ENGAGED IN REPRESENTING OR ACTING FOR EMPLOYEE MEMBERS. 

"(D)  THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS OF ANY
COURT OF THE UNITED STATES UPON AN OFFICER OR AGENT OF A LABOR
ORGANIZATION, IN HIS CAPACITY AS SUCH, SHALL CONSTITUTE SERVICE UPON
THE LABOR ORGANIZATION. 

"(E)  FOR THE PURPOSES OF THIS SECTION, IN DETERMINING WHETHER ANY
PERSON IS ACTING AS AN 'AGENT' OF ANOTHER PERSON SO AS TO MAKE SUCH
OTHER PERSON RESPONSIBLE FOR HIS ACTS, THE QUESTION OF WHETHER THE
SPECIFIC ACTS PERFORMED WERE ACTUALLY AUTHORIZED OR SUBSEQUENTLY
RATIFIED SHALL NOT BE CONTROLLING."  61 STAT. 156-157, 29 U.S.C. SEC.
185 (1964 ED.). 

FN2  SEE ALSO RULE 17(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE;
DOWD BOX V. COURTNEY, 368 U.S. 502, 504; UNITED STEELWORKERS V.
ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593. 

FN3  SEE, E.G., CONLEY V. GIBSON, 355 U.S. 41, 46; COMMENT, 28 U.
CHI.  L. REV. 707, 716. 

THAT THE EMPLOYEES IN THIS CASE DID NOT ASSIGN THEIR CLAIMS TO THE
UNION PRESENTS NO BARRIER TO THE UNION'S STANDING TO SUE IN THEIR
BEHALF.  SUCH A TECHNICAL REQUIREMENT WOULD CONFLICT WITH ONE OF THE
WIDELY RECOGNIZED PURPOSES OF CONGRESS IN ENACTING SEC. 301 - THE
ELIMINATION OF COMMON-LAW PROCEDURAL OBSTACLES TO SUITS FOR BREACH OF
COLLECTIVE BARGAINING AGREEMENTS.  SEE, E.G., TEXTILE WORKERS V.
LINCOLN MILLS, 353 U.S. 448, 451.  MELTZER, THE SUPREME COURT,
CONGRESS, AND STATE JURISDICTION OVER LABOR RELATIONS:  II, 59 COL. L.
REV. 269. 

FN4  OUR CASES HAVE SPOKEN OF THE FEDERAL LAW APPLICABLE TO SEC. 301
SUITS AS "SUBSTANTIVE," SEE, E.G., TEXTILE WORKERS V. LINCOLN MILLS,
353 U.S., AT 456, AND THE NEED FOR UNIFORMITY IN THE "SUBSTANTIVE
PRINCIPLES" THAT GOVERN THESE SUITS.  SEE TEAMSTERS LOCAL V. LUCAS
FLOUR CO., 369 U.S., AT 103.  IN THE VIEW WE TAKE OF THE PROBLEM
PRESENTED HERE, WE NEED NOT DECIDE WHETHER STATUTES OF LIMITATIONS ARE
"SUBSTANTIVE" OR "PROCEDURAL."  SEE GUARANTY TRUST CO. V. YORK, 326
U.S. 99; BURNETT V. NEW YORK CENTRAL R. CO., 380 U.S. 424, 427, NOTE
2.  NOR NEED WE RIGIDLY CLASSIFY THEM AS "PRIMARY" OR "REMEDIAL."  TO
THE EXTENT THAT THESE TERMS ARE USEFUL, WE NEED ONLY NOTICE THAT LACK
OF UNIFORMITY IN LIMITATIONS PROVISIONS IS UNLIKELY TO HAVE SUBSTANTIAL
EFFECT UPON THE PRIVATE DEFINITION OR EFFECTUATION OF "SUBSTANTIVE" OR
"PRIMARY" RIGHTS IN THE COLLECTIVE BARGAINING PROCESS.  SEE WELLINGTON,
LABOR AND THE FEDERAL SYSTEM, 26 U. CHI.  L. REV. 542, 556-559. 

FN5  COMPARE, E.G., THE REMARKS OF SENATOR WAGNER, 93 CONG. REC.
3323, AND THOSE OF SENATOR MURRAY, 93 CONG. REC. 4030, WITH THE REMARKS
OF SENATOR SMITH, 93 CONG. REC. 4283. 

FN6  IN MCALLISTER V. MAGNOLIA PETROLEUM CO., 357 U.S. 221, THIS
COURT HELD THAT, "WHERE AN ACTION FOR UNSEAWORTHINESS IS COMBINED WITH
AN ACTION UNDER THE JONES ACT A COURT CANNOT APPLY TO THE FORMER A
SHORTER PERIOD OF LIMITATIONS THAN CONGRESS HAS PRESCRIBED FOR THE
LATTER."  357 U.S., AT 224.  THE MCALLISTER CASE REPRESENTS NO
DEPARTURE FROM THE TRADITION DISCUSSED IN THE TEXT.  THE COURT'S
DECISION RESTED ON THE PECULIAR CONFIGURATION OF THE FEDERAL MARITIME
REMEDIES.  A SEAMAN SUING FOR BOTH UNSEAWORTHINESS AND JONES ACT
NEGLIGENCE MUST DO SO IN A SINGLE PROCEEDING.  BALTIMORE S.S. CO. V.
PHILLIPS, 274 U.S. 316.  THE COURT HAD NO OCCASION IN MCALLISTER TO
CONSIDER WHETHER A STATE PERIOD LONGER THAN THAT PROVIDED IN THE JONES
ACT COULD BE APPLIED.  357 U.S., AT 227 (BRENNAN, J., CONCURRING). 

FN7  THE PRESENT SUIT IS ESSENTIALLY AN ACTION FOR DAMAGES CAUSED BY
AN ALLEGED BREACH OF AN EMPLOYER'S OBLIGATION EMBODIED IN A COLLECTIVE
BARGAINING AGREEMENT.  SUCH AN ACTION CLOSELY RESEMBLES AN ACTION FOR
BREACH OF CONTRACT COGNIZABLE AT COMMON LAW.  WHETHER OTHER SEC. 301
SUITS DIFFERENT FROM THE PRESENT ONE MIGHT CALL FOR THE APPLICATION OF
OTHER RULES ON TIMELINESS, WE ARE NOT REQUIRED TO DECIDE, AND WE
INDICATE NO VIEW WHATSOEVER ON THAT QUESTION.  SEE, E.G., HOLMBERG V.
ARMBRECHT, 327 U.S. 392; MOVIECOLOR LIMITED V. EASTMAN KODAK CO., 288
F.2D 80 (C.A.2D CIR.); 2 MOORE FEDERAL PRACTICE PARA. 3.07(1)-(3), AT
740-764 (2D ED. 1965); HILL, STATE PROCEDURAL LAW IN FEDERAL
NONDIVERSITY LITIGATION, 69 HARV. L. REV. 66, 111-114. 

FN8  THE RECORD INDICATES THAT INDIANA IS BOTH THE FORUM STATE AND
THE STATE IN WHICH ALL OPERATIVE EVENTS OCCURRED.  NEITHER PARTY HAS
SUGGESTED THAT THE LIMITATIONS PROVISION OF ANOTHER STATE IS RELEVANT. 
THERE IS THEREFORE NO OCCASION TO CONSIDER WHETHER SUCH A CHOICE OF LAW
SHOULD BE MADE IN ACCORD WITH THE PRINCIPLE OF KLAXON CO. V. STENTOR
MFG. CO., 313 U.S. 487, OR BY OPERATION OF A DIFFERENT FEDERAL CONFLICT
OF LAWS RULE.  SEE RICHARDS V. UNITED STATES, 369 U.S.1; DE SYLVA V.
BALLENTINE, 351 U.S. 570; VANSTON BONDHOLDERS PROTECTIVE COMMITTEE V.
GREEN, 329 U.S. 156; MCKENZIE V. IRVING TRUST CO., 323 U.S. 365;
D'OENCH, DUHME & CO. V. FEDERAL DEPOSIT INS. CORP., 315 U.S. 447.  SEE
ALSO DISCUSSION IN HART & WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 696 ET SEQ. 

FN9  OTHER QUESTIONS WOULD BE RAISED IF THIS CASE PRESENTED A STATE
LAW CHARACTERIZATION OF A SEC. 301 SUIT THAT REASONABLY DESCRIBED THE
NATURE OF THE CAUSE OF ACTION, BUT REQUIRED APPLICATION OF AN UNUSUALLY
SHORT OR LONG LIMITATIONS PERIOD.  SEE, E.G., N.M. STAT. SEC.  59-3-4
(1953)(AN ACTION FOR WAGES "MUST BE COMMENCED WITHIN SIXTY (60) DAYS
FROM THE DATE OF DISCHARGE  ...  .").  SEE CAMPBELL V. HAVERHILL, 155
U.S. 610, 615; CALDWELL V. ALABAMA DRY DOCK & SHIPBUILDING CO., 161
F.2D 83 (C.A. 5TH CIR.); MISHKIN, THE VARIOUSNESS OF "FEDERAL LAW":
COMPETENCE AND DISCRETION IN THE CHOICE OF NATIONAL AND STATE RULES FOR
DECISION, 105 U. PA. L. REV. 797, 805-806. 

FN10  NEITHER PARTY HAS SUGGESTED THAT THE CAUSE OF ACTION "ACCRUED"
ON ANY DATE OTHER THAN JUNE 1, 1957, WHEN THE COMPANY TERMINATED THE
EMPLOYEES' JOBS.  CF. RAWLINGS V. RAY, 312 U.S. 96; COPE V. ANDERSON,
331 U.S. 461; MOVIECOLOR LIMITED V. EASTMAN KODAK CO., 288 F.2D 80, 83
(C.A.2D CIR.).

FN11  IT SHOULD BE NOTED ALSO THAT INDIANA HAS A SAVING STATUTE, IND.
ANN. STAT. SEC. 2-608 (1946 REPL.  VOL.), BUT THE UNION HAS NEVER
CONTENDED THAT IT PRESERVES THE TIMELINESS OF THIS SUIT. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

CERTAIN PRINCIPLES ARE UNDISPUTED IN THIS CASE.  THE PERIOD OF
LIMITATIONS FOR SEC. 301 SUITS IS TO BE DETERMINED BY FEDERAL LAW; AND,
SINCE CONGRESS HAS MADE NO EXPRESS PROVISION FOR ANY TIME LIMITATION,
THIS COURT MUST FASHION THE GOVERNING RULE.  BY ADOPTING THE STATUTES
OF THE SEVERAL STATES, THE COURT CREATES 50 OR MORE DIFFERENT STATUTES
OF LIMITATIONS (FN1) RATHER THAN FASHIONING A UNIFORM RULE AFTER
CONSIDERATION OF RELEVANT FEDERAL AND STATE STATUTES. 

THE COURT JUSTIFIES ITS DECISION IN PART BY RELIANCE ON CASES DECIDED
UNDER THE RULES OF DECISIONS ACT, 28 U.S.C. SEC. 1652 (1964 ED.), WHICH
INTERPRETED "THE SILENCE OF CONGRESS  ...  TO MEAN THAT IT IS FEDERAL
POLICY TO ADOPT THE LOCAL LAW OF LIMITATION."  HOLMBERG V. ARMBRECHT,
327 U.S. 392, 395; SEE, E.G., CHATTANOOGA FOUNDRY V. ATLANTA, 203 U.S.
390, 397; CAMPBELL V. HAVERHILL, 155 U.S. 610; MCCLUNY V. SILLIMAN, 3
PET.  270, 277.  BUT THE CASES ALSO ESTABLISH THAT THE SILENCE OF
CONGRESS IS NOT TO BE READ AS AUTOMATICALLY PUTTING AN IMPRIMATUR ON
STATE LAW.  RATHER, STATE LAW IS APPLIED ONLY BECAUSE IT SUPPLEMENTS
AND FULFILLS FEDERAL POLICY, AND THE ULTIMATE QUESTION IS WHAT FEDERAL
POLICY REQUIRES.  SEE BOARD OF COUNTY COMM'RS V. UNITED STATES, 308
U.S. 343, 350-352; HOLMBERG V. ARMBRECHT, 327 U.S. 392, 394-395;
ASSOCIATION OF WESTINGHOUSE SALARIED EMPLOYEES V. WESTINGHOUSE CORP.,
348 U.S. 437, 463 (REED, J., CONCURRING). 

MORE SPECIFICALLY, IT IS QUITE CLEAR THAT WITH RESPECT TO SEC. 301
SUITS CONGRESSIONAL SILENCE EXTENDS NOT JUST TO THE QUESTION OF
LIMITATIONS BUT ENCOMPASSES THE ENTIRETY OF THE GOVERNING LEGAL
PRINCIPLES.  RATHER THAN INFERRING FROM CONGRESSIONAL SILENCE THAT
STATE LAW WAS TO GOVERN, TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S.
448, HELD THAT THE FEDERAL COURTS WERE TO "FASHION FROM THE POLICY OF
OUR NATIONAL LABOR LAWS" GENERAL FEDERAL LAW APPLICABLE TO SUITS ON
COLLECTIVE BARGAINING AGREEMENTS.  ID., AT 456.  ALTHOUGH LINCOLN MILLS
RECOGNIZED THAT "STATE LAW, IF COMPATIBLE WITH THE PURPOSE OF SEC. 301,
MAY BE RESORTED TO IN ORDER TO FIND THE RULE THAT WILL BEST EFFECTUATE
THE FEDERAL POLICY," ID., AT 457, IT DID NOT INTIMATE IN ANY WAY THAT
FEDERAL POLICY WOULD BE FURTHERED BY THE ADOPTION OF 50 DIFFERENT STATE
RULES.  TO THE CONTRARY, SUBSEQUENT DECISIONS HAVE RECOGNIZED THAT
"COMPREHENSIVENESS IS INHERENT IN THE PROCESS BY WHICH THE LAW IS TO BE
FORMULATED UNDER THE MANDATE OF LINCOLN MILLS" AND THAT, "MORE
IMPORTANT, THE SUBJECT MATTER OF SEC. 301(A) 'IS PECULIARLY ONE THAT
CALLS FOR UNIFORM LAW.'"  TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S.
95, 103.  THERE IS, THEREFORE, NO SOUND BASIS FOR SAYING THAT CONGRESS
BY ITS SILENCE ON THE LIMITATIONS MATTER INTENDED THE STATE LAWS TO
APPLY OR FOR ADOPTING DIVERSE STATE LAWS SIMPLY BECAUSE OF A RELUCTANCE
TO SUPPLY WHAT CONGRESS OMITTED.  THE COURTS ARE EXPECTED TO DEVELOP
THE LAW OF LABOR CONTRACTS, AND THIS CASE REPRESENTS ONLY ANOTHER TASK
IN THIS PROCESS.    THE COURT REASONS, HOWEVER, THAT TO DEVISE A
UNIFORM TIME LIMITATION WOULD BE TOO "BALD A FORM OF JUDICIAL
INNOVATION."  ANTE, AT P. 701.  CASES DEFINING A NEED FOR UNIFORMITY IN
SEC. 301 SUITS ARE SAID TO BE LIMITED TO MATTERS CONCERNING WHICH THE
POSSIBLE APPLICATION OF VARYING SYSTEMS OF LAW " 'WOULD INEVITABLY
EXERT A DISRUPTIVE INFLUENCE UPON BOTH THE NEGOTIATION AND
ADMINISTRATION OF COLLECTIVE AGREEMENTS.'"  ANTE, AT PP. 701-702. 
SINCE, ACCORDING TO THE MAJORITY, THE LACK OF A UNIFORM STATUTE OF
LIMITATIONS WOULD GENERALLY NOT HAVE THAT EFFECT, (FN2) THE COURT
CONCLUDES THAT ALTHOUGH SUCH A UNIFORM PROVISION "MIGHT WELL CONSTITUTE
A DESIRABLE STATUTORY ADDITION, THERE IS NO JUSTIFICATION FOR THE
DRASTIC SORT OF JUDICIAL LEGISLATION THAT IS URGED UPON US."  ANTE, AT
PP. 702-703. 

THE COURT IS UNDOUBTEDLY CORRECT IN STATING THAT A UNIFORM
LIMITATIONS PERIOD WOULD BE DESIRABLE.  SUPPOSE, FOR EXAMPLE, THAT THE
COLLECTIVE BARGAINING CONTRACT IN DISPUTE WAS ONE MADE IN DETROIT FOR A
MULTI-STATE UNIT OF TRUCK DRIVERS AND THAT, AS IS TRUE IN THIS CASE,
100 OF THE COVERED EMPLOYEES WERE DISCHARGED WITHOUT PAYMENT OF
ACCUMULATED VACATION PAY.  SUPPOSE FURTHER THAT SOME OF THE EMPLOYEES
WERE HIRED IN CHICAGO AND DISCHARGED IN INDIANA WHILE OTHERS WERE HIRED
IN ST. LOUIS, CLEVELAND, AND TERRE HAUTE AND WERE DISCHARGED IN
ILLINOIS, MICHIGAN, AND IOWA (IN WHATEVER COMBINATIONS ARE PREFERRED). 
SUPPOSE, FINALLY, THAT SOME SUE IN INDIANA, SOME IN OTHER STATES, SOME
IN FEDERAL COURT, AND SOME IN STATE COURT.  SIMPLE JUSTICE DICTATES IN
SUCH A SITUATION THAT THE RIGHT OF EMPLOYEES IN DIFFERENT STATES TO
ASSERT THEIR FEDERAL CLAIM SHOULD BE EQUALLY AVAILABLE.  CLEARLY THERE
IS NO SENSE OR JUSTICE IN REFERRING TO 50 OR MORE DIFFERENT STATUTES OF
LIMITATIONS SO THAT ONE EMPLOYEE MAY BE BARRED AFTER ONE YEAR WHILE
ANOTHER EMPLOYEE MAY SUE ANY TIME WITHIN SIX YEARS.  NOR IS THERE ANY
REASON WHY AN EMPLOYER OPERATING UNDER THE CONTRACT IN ONE STATE SHOULD
BE BOTHERED WITH STALE CLAIMS ALREADY BARRED AS AGAINST OTHER EMPLOYERS
IN OTHER STATES. 

MOREOVER, THE COURT'S DECISION CREATES UNNECESSARY COMPLEXITIES AND
OPPORTUNITIES FOR VEXATIOUS LITIGATION, SOME OF WHICH ARE REFLECTED IN
THE COURT'S OPINION.  THUS THE COURT NOTES THAT IN A SITUATION
INVOLVING MULTI-STATE CONTACTS, SUCH AS THE EXAMPLE GIVEN ABOVE, A
FEDERAL COURT HEARING THE CASE WOULD BE REQUIRED TO DECIDE WHETHER TO
APPLY A FEDERAL, OR THE FORUM STATE'S, CONFLICT OF LAWS RULES TO SELECT
THE STATE OF GOVERNING LAW.  IF THIS COURT ULTIMATELY HOLDS THAT A
FEDERAL CONFLICT OF LAWS RULE IS TO GOVERN IN FEDERAL COURT SUITS, THE
ADDITIONAL QUESTION WILL BE PRESENTED OF WHETHER THE FEDERAL CONFLICT
OF LAWS RULE MUST ALSO BE APPLIED BY STATE COURTS OR WHETHER THEY MAY
CONTINUE TO APPLY THEIR OWN CONFLICT OF LAWS RULE.  WHATEVER CONFLICT
OF LAWS RULE, STATE OR FEDERAL, IS SELECTED, THERE WILL REMAIN THE
DIFFICULT TASK OF APPLYING THAT RULE TO FIND THE STATE WHOSE
LIMITATIONS STATUTE IS TO CONTROL.  IN CASES NOT INVOLVING MULTI-STATE
CONTACTS, THE COURT MAY HAVE TO CHOOSE BETWEEN TWO OR MORE STATE
STATUTES; HERE THE CHOICE IS BETWEEN THE LIMITATIONS PERIOD FOR SUITS
ON WRITTEN CONTRACTS AND THE PERIOD FOR SUITS ON ORAL CONTRACTS.  UNDER
TODAY'S DECISION, THIS CHOICE IS TO BE GOVERNED BY THE STATE'S
CHARACTERIZATION OF THE FEDERAL ACTION (OR A FEDERAL COURT'S DELPHIC
OPINION OF WHAT THAT CHARACTERIZATION WOULD BE), "UNLESS THAT
CHARACTERIZATION IS UNREASONABLE OR OTHERWISE INCONSISTENT WITH
NATIONAL LABOR POLICY."  ANTE, AT P. 706.  THE GOVERNING STATE
LIMITATIONS STATUTE, HAVING FINALLY BEEN DETERMINED, IS TO BE APPLIED
UNLESS THE PERIOD IS "UNUSUALLY SHORT OR LONG."  (FN3)  ANTE, AT P.
707, N. 9.  THE PROBLEMS WE HAVE INDICATED ARE MERELY ILLUSTRATIVE OF
THE COMPLEX QUESTIONS THAT MUST BE DECIDED UNDER THE COURT'S APPROACH
BEFORE IT CAN BE DETERMINED WHICH OF SEVERAL COMPETING STATE STATUTES
IS TO BE APPLIED AND WHETHER SUCH APPLICATION IS REASONABLE WHEN TESTED
BY THE FEDERAL LABOR POLICY; UNDOUBTEDLY THE FERTILE IMAGINATION OF
COUNSEL WILL CONCEIVE ADDITIONAL INTRICACIES.  THE DESIRABILITY OF A
SINGLE, UNIFORM, FEDERAL STATUTE TO FURTHER JUSTICE AND TO AVOID SUCH
LITIGATION-CREATING COMPLEXITIES WAS OF COURSE RECOGNIZED BY CONGRESS
IN PASSING THE STATUTES, TO WHICH THE MAJORITY REFERS, THAT OVERRULED
IN PARTICULAR AREAS PAST REFUSALS OF THIS COURT TO FASHION SUCH A
UNIFORM RULE. 

THE CASE FOR THE COURT'S DECISION THUS ULTIMATELY COMES DOWN TO THE
PROPOSITION THAT FASHIONING A UNIFORM FEDERAL STATUTE WOULD INVOLVE TOO
BALD AN EXERCISE OF JUDICIAL INNOVATION.  THIS IS AN ARGUMENT I HAVE
DIFFICULTY IN FATHOMING.  COURTS HAVE NOT ALWAYS BEEN RELUCTANT TO
"CREATE" STATUTES OF LIMITATIONS, THE COMMON-LAW DOCTRINE OF
PRESCRIPTION BY WHICH JUDGMENTS ARE PRESUMED TO HAVE BEEN PAID AFTER
THE LAPSE OF 20 YEARS, SEE GAINES V. MILLER, 111 U.S. 395, 399;
MCELMOYLE V. COHEN, 13 PET. 312, 327, BEING JUST ONE EXAMPLE.  IN
EQUITY THEY HAVE APPLIED THE DOCTRINE OF LACHES, SEE HOLMBERG V.
ARMBRECHT, 327 U.S. 392.  BUT HERE THERE IS NO DISPUTE CONCERNING
WHETHER A STATUTE OF LIMITATIONS IS TO BE FASHIONED - THE CHOICE IS
BETWEEN ONE STATUTE OR 50.  IF THE COURT IS TO DEVELOP THE SUBSTANTIVE
LAW OF LABOR CONTRACTS, WHICH IT HAS UNDERTAKEN TO DO WITH THE BLESSING
OF CONGRESS, IT SEEMS ODD THAT THE COURT SHOULD BALK AT ESTABLISHING A
SINGLE LIMITATIONS PERIOD, DRAWN FROM ANY OF THE SOURCES AVAILABLE TO
IT, INCLUDING THE RELEVANT FEDERAL AND STATE STATUTES.  I UNDERTAKE NO
SUCH CANVASS HERE, (FN4) BUT THINK THE COURT SHOULD DO SO.  I THEREFORE
DISSENT. 

FN1  THE COURT'S APPROACH ADOPTS (AND THEREBY CREATES AS FEDERAL LAW)
AT LEAST ONE LIMITATIONS STATUTE FOR EACH STATE AND TERRITORY.  IN MANY
STATES IT ADOPTS A MULTITUDE OF LIMITATIONS PROVISIONS, EACH APPLICABLE
TO A PARTICULAR TYPE OF SEC. 301 SUIT.  THE COURT'S OPINION SUGGESTS,
FOR EXAMPLE, THAT HAD THE PRESENT SUIT BEEN "EXCLUSIVELY BASED UPON A
WRITTEN CONTRACT," ANTE, AT P. 706, THE INDIANA 20-YEAR, RATHER THAN
THE SIX-YEAR, STATUTE WOULD HAVE GOVERNED. 

FN2  HOWEVER, LIMITATIONS QUESTIONS WILL HAVE AN IMPACT ON THE
NEGOTIATION AND ADMINISTRATION OF THE COLLECTIVE AGREEMENT IN MANY
INSTANCES - FOR EXAMPLE, IF THE PARTIES DECIDE TO LIMIT BY CONTRACT THE
PERIOD FOR BRINGING SUIT.  THE LAWS OF THE SEVERAL STATES VARY WITH
RESPECT TO THE ENFORCEABILITY OF SUCH CONTRACTUAL LIMITATIONS PERIODS,
PARTICULARLY WHEN IT IS ASSERTED THAT THE AGREED PERIOD IS
UNREASONABLE, SEE WILLISTON ON CONTRACTS SEC. 183, AT 711, N. 10
(JAEGER 3D ED. 1957); NOTE, 63 HARV. L. REV. 1177, 1181-1182 (1950). 
IT MAY BE ASSUMED THAT, UNDER THE TEST ADVANCED BY THE MAJORITY,
UNIFORM FEDERAL LAW WILL BE FASHIONED TO DETERMINE THEIR VALIDITY, JUST
AS, AT LEAST IN SOME CIRCUMSTANCES, FEDERAL LAW WILL DETERMINE WHEN THE
CAUSE OF ACTION AROSE, SEE COPE V. ANDERSON, 331 U.S. 461; RAWLINGS V.
RAY, 312 U.S. 96, AND WHETHER THE RUNNING OF LIMITATIONS WAS TOLLED BY
FRAUDULENT CONCEALMENT, SEE HOLMBERG V. ARMBRECHT, 327 U.S. 392;
MOVIECOLOR LIMITED V. EASTMAN KODAK CO., 288 F.2D 80 (C.A.2D CIR.
1961). 

FN3  UNFORTUNATELY THE COURT PROVIDES NO ENLIGHTENMENT CONCERNING
WHERE WE ARE TO LOOK FOR A LIMITATIONS PERIOD SHOULD THE STATE STATUTE
BE HELD UNREASONABLE.  PERHAPS IN EXTREMIS EVEN THE COURT'S APPROACH
WILL REQUIRE THE KIND OF INNOVATION IT NEW REJECTS. 

FN4  NOR DO I INTIMATE ANY OPINION CONCERNING THE TOLLING QUESTION
MOOTED IN THE COURT'S OPINION. 
..END :



UNITED STATES V. O'MALLEY 383 U.S. 627 


NO. 127.  ARGUED JANUARY 24-25, 1966.  - DECIDED MARCH 23, 1966.  - 340
F.2D 930, REVERSED. 


DECEDENT CREATED FIVE IRREVOCABLE TRUSTS, EACH OF WHICH ALLOWED THE
TRUSTEES, OF WHOM HE WAS ONE, DISCRETION TO PAY THE BENEFICIARY TRUST
INCOME OR TO ACCUMULATE IT, IN WHICH CASE IT BECAME A PART OF THE TRUST
PRINCIPAL.  THE COMMISSIONER OF INTERNAL REVENUE INCLUDED IN DECEDENT'S
GROSS ESTATE BOTH THE ORIGINAL PRINCIPAL OF THE TRUSTS AND THE
ACCUMULATED INCOME ADDED THERETO, ON THE GROUND THAT THE POWER RETAINED
BY DECEDENT TO PAY OUT OR ACCUMULATE THE INCOME OF THE TRUSTS
CONSTITUTED A POWER TO DESIGNATE THE PERSONS WHO WOULD POSSESS OR ENJOY
THE INCOME UNDER SEC. 811(C)(1)(B)(II) OF THE INTERNAL REVENUE CODE OF
1939, WHICH DEALS WITH THE INCLUDABILITY IN THE GROSS ESTATE OF
PROPERTY INVOLVED IN CERTAIN INTER VIVOS TRANSFERS.  RESPONDENTS, THE
EXECUTORS, PAID THE ESTATE TAX DEFICIENCY AND BROUGHT THIS REFUND
ACTION, CONTENDING IN PART THAT ACCUMULATED TRUST INCOME SINCE NOT PART
OF THE PROPERTY "TRANSFERRED" AT THE TIME OF THE CREATION OF THE TRUST
DID NOT COME WITHIN THAT STATUTORY PROVISION AND SHOULD NOT BE INCLUDED
IN THE DECEDENT'S GROSS ESTATE.  THE DISTRICT COURT FOUND THE ORIGINAL
CORPUS INCLUDABLE IN THE ESTATE (A HOLDING NOT CHALLENGED HERE) BUT
EXCLUDED THE PORTION OF THE TRUST PRINCIPAL REPRESENTING ACCUMULATED
INCOME.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE GRANTOR, BY VIRTUE
OF THE ORIGINAL INTER VIVOS TRANSFER AND THE EXERCISE OF THE RIGHT
RESERVED IN THE TRUST INSTRUMENT TO RETAIN TRUST INCOME AS PART OF THE
TRUST PRINCIPAL RATHER THAN DISBURSE IT, MADE A "TRANSFER" OF
ACCUMULATED INCOME WITHIN THE MEANING OF SEC. 811(C)(1)(B)(II).  THE
"TRANSFER" REQUIREMENT OF THAT PROVISION WAS THEREFORE MET, AS WELL AS
THE REQUIREMENT FOR RETENTION OF THE POWER TO DETERMINE WHO WHOULD
ENJOY THE INCOME FROM THE TRANSFERRED PROPERTY; THE ACCUMULATED INCOME
WAS THEREFORE PROPERLY INCLUDED IN THE GRANTOR'S GROSS ESTATE.  PP. 630
634. 

UNITED STATES V. O'MALLEY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE INTERNAL REVENUE CODE OF 1939 IMPOSES AN ESTATE TAX "UPON THE
TRANSFER OF THE NET ESTATE OF EVERY DECEDENT."  SEC. 810.  THE GROSS
ESTATE IS TO INCLUDE NOT ONLY ALL PROPERTY "TO THE EXTENT OF THE
INTEREST THEREIN OF THE DECEDENT AT THE TIME OF HIS DEATH," SEC.
811(A), BUT ALSO, UNDER SEC. 811(C)(1), ALL PROPERTY: 

"TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS AT
ANY TIME MADE A TRANSFER (EXCEPT IN CASES OF A BONA FIDE SALE FOR AN
ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH), BY TRUST OR
OTHERWISE: 

"(A)  IN CONTEMPLATION OF HIS DEATH; OR: 

"(B)  UNDER WHICH HE HAS RETAINED FOR HIS LIFE OR FOR ANY PERIOD NOT
ASCERTAINABLE WITHOUT REFERENCE TO HIS DEATH OR FOR ANY PERIOD WHICH
DOES NOT IN FACT END BEFORE HIS DEATH (I) THE POSSESSION OR ENJOYMENT
OF, OR THE RIGHT TO THE INCOME FROM, THE PROPERTY, OR (II) THE RIGHT,
EITHER ALONE OR IN CONJUNCTION WITH ANY PERSON, TO DESIGNATE THE
PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE INCOME
THEREFROM; OR:  (FN1) 

"(C)  INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER
HIS DEATH:" 

AND, UNDER SEC. 811(D), PROPERTY WHICH HAS BEEN THE SUBJECT OF A
REVOCABLE TRANSFER DESCRIBED IN THAT SECTION.  (FN2) 

EDWARD H. FABRICE, WHO DIED IN 1949, CREATED FIVE IRREVOCABLE TRUSTS
IN 1936 AND 1937, TWO FOR EACH OF TWO DAUGHTERS AND ONE FOR HIS WIFE. 
HE WAS ONE OF THREE TRUSTEES OF THE TRUSTS, EACH OF WHICH PROVIDED THAT
THE TRUSTEES, IN THEIR SOLE DISCRETION, COULD PAY TRUST INCOME TO THE
BENEFICIARY OR ACCUMULATE THE INCOME, IN WHICH EVENT IT BECAME PART OF
THE PRINCIPAL OF THE TRUST.  (FN3)  BASING HIS ACTION ON SEC.
811(C)(1)(B)(II) AND SEC. 811(D)(1), THE COMMISSIONER INCLUDED IN
FABRICE'S GROSS ESTATE BOTH THE ORIGINAL PRINCIPAL OF THE TRUSTS AND
THE ACCUMULATED INCOME ADDED THERETO.  HE ACCORDINGLY ASSESSED A
DEFICIENCY, THE PAYMENT OF WHICH PROMPTED THIS REFUND ACTION BY THE
RESPONDENTS, THE EXECUTORS OF THE ESTATE.  THE DISTRICT COURT FOUND THE
ORIGINAL CORPUS OF THE TRUSTS INCLUDABLE IN THE ESTATE, A HOLDING NOT
CHALLENGED IN THE COURT OF APPEALS OR HERE.  IT FELT OBLIGED, HOWEVER,
BY COMMISSIONER V. MCDERMOTT'S ESTATE, 222 F.2D 665, TO EXCLUDE FROM
THE TAXABLE ESTATE THE PORTION OF THE TRUST PRINCIPAL REPRESENTING
ACCUMULATED INCOME AND TO ORDER AN APPROPRIATE REFUND.  220 F. SUPP.
30.  THE COURT OF APPEALS AFFIRMED, 340 F.2D 930, ADHERING TO ITS OWN
DECISION IN MCDERMOTT'S ESTATE AND NOTING ITS DISAGREEMENT WITH ROUND
V. COMMISSIONER, 332 F.2D 590, IN WHICH THE COURT OF APPEALS FOR THE
FIRST CIRCUIT DECLINED TO FOLLOW MCDERMOTT'S ESTATE.  BECAUSE OF THESE
CONFLICTING DECISIONS WE GRANTED CERTIORARI.  382 U.S. 810.  WE NOW
REVERSE THE DECISION BELOW. 

THE APPLICABILITY OF SEC. 811(C)(1)(B)(II), UPON WHICH THE UNITED
STATES NOW STANDS, DEPENDS UPON THE ANSWER TO TWO INQUIRIES RELEVANT TO
THE FACTS OF THIS CASE:  FIRST, WHETHER FABRICE RETAINED A POWER "TO
DESIGNATE THE PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE
INCOME THEREFROM"; AND SECOND, WHETHER THE PROPERTY SOUGHT TO BE
INCLUDED, NAMELY, THE PORTIONS OF TRUST PRINCIPAL REPRESENTING
ACCUMULATED INCOME, WAS THE SUBJECT OF A PREVIOUS TRANSFER BY FABRICE. 

PART OF THE CONGRESSIONAL RESPONSE TO MAY V. HEINER, 281 U.S. 238, AND
ITS OFFSPRING (FN4) AND OF THE LEGISLATIVE POLICY OF SUBJECTING TO TAX
ALL PROPERTY WHICH HAS BEEN THE SUBJECT OF AN INCOMPLETE INTER VIVOS
TRANSFER.  CF. COMMISSIONER V. ESTATE OF CHURCH, 335 U.S. 632, 644-645;
HELVERING V. HALLOCK, 309 U.S. 106, 114.  THE SECTION REQUIRES THE
PROPERTY TO BE INCLUDED NOT ONLY WHEN THE GRANTOR HIMSELF HAS THE RIGHT
TO ITS INCOME BUT ALSO WHEN HE HAS THE RIGHT TO DESIGNATE THOSE WHO MAY
POSSESS AND ENJOY IT. HERE FABRICE WAS EMPOWERED, WITH THE OTHER
TRUSTEES, TO DISTRIBUTE THE TRUST INCOME TO THE INCOME BENEFICIARIES OR
TO ACCUMULATE IT AND ADD IT TO THE PRINCIPAL, THEREBY DENYING TO THE
BENEFICIARIES THE PRIVILEGE OF IMMEDIATE ENJOYMENT AND CONDITIONING
THEIR EVENTUAL ENJOYMENT UPON SURVIVING THE TERMINATION OF THE TRUST. 
THIS IS A SIGNIFICANT POWER, SEE COMMISSIONER V. ESTATE OF HOLMES, 326
U.S. 480, 487, AND OF SUFFICIENT SUBSTANCE TO BE DEEMED THE POWER TO
"DESIGNATE" WITHIN THE MEANING OF SEC. 811(C)(1)(B)(II).  THIS WAS THE
HOLDING OF THE TAX COURT AND THE COURT OF APPEALS ALMOST 20 YEARS AGO. 
INDUSTRIAL TRUST CO. V. COMMISSIONER, 165 F.2D 142, AFFIRMING IN THIS
RESPECT ESTATE OF BUDLONG V. COMMISSIONER, 7 T.C. 756.  THE DISTRICT
COURT HERE FOLLOWED INDUSTRIAL TRUST AND AFFIRMED THE INCLUDABILITY OF
THE ORIGINAL PRINCIPAL OF EACH OF THE FABRICE TRUSTS.  THAT RULING IS
NOT NOW DISPUTED.  BY THE SAME TOKEN, THE FIRST CONDITION TO TAXING
ACCUMULATED INCOME ADDED TO THE PRINCIPAL IS SATISFIED, FOR THE INCOME
FROM THESE INCREMENTS TO PRINCIPAL WAS SUBJECT TO THE IDENTICAL POWER
IN FABRICE TO DISTRIBUTE OR ACCUMULATE UNTIL THE VERY MOMENT OF HIS
DEATH. 

THE DISPUTE IN THIS CASE RELATES TO THE SECOND CONDITION TO THE
APPLICABILITY OF SEC. 811(C)(1)(B)(II) - WHETHER FABRICE HAD EVER
"TRANSFERRED" THE INCOME ADDITIONS TO THE TRUST PRINCIPAL.  CONTRARY TO
THE JUDGMENT OF THE COURT OF APPEALS, WE ARE SURE THAT HE HAD.  AT THE
TIME FABRICE ESTABLISHED THESE TRUSTS, HE OWNED ALL OF THE RIGHTS TO
THE PROPERTY TRANSFERRED, A MAJOR ASPECT OF WHICH WAS HIS RIGHT TO THE
PRESENT AND FUTURE INCOME PRODUCED BY THAT PROPERTY.  COMMISSIONER V.
ESTATE OF CHURCH, 335 U.S. 632, 644.  WITH THE CREATION OF THE TRUSTS,
HE RELINQUISHED ALL OF HIS RIGHTS TO INCOME EXCEPT THE POWER TO
DISTRIBUTE THAT INCOME TO THE INCOME BENEFICIARIES OR TO ACCUMULATE IT
AND HOLD IT FOR THE REMAINDERMEN OF THE TRUSTS.  HE NO LONGER HAD, FOR
EXAMPLE, THE RIGHT TO INCOME FOR HIS OWN BENEFIT OR TO HAVE IT
DISTRUBUTED TO ANY OTHER THAN THE TRUST BENEFICIARIES.  MOREOVER, WITH
RESPECT TO THE VERY ADDITIONS TO PRINCIPAL NOW AT ISSUE, HE EXERCISED
HIS RETAINED POWER TO DISTRIBUTE OR ACCUMULATE INCOME, CHOOSING TO DO
THE LATTER AND THEREBY ADDING TO THE PRINCIPAL OF THE TRUSTS.  ALL
INCOME INCREMENTS TO TRUST PRINCIPAL ARE THEREFORE TRACEABLE TO FABRICE
HIMSELF, BY VIRTUE OF THE ORIGINAL TRANSFER AND THE EXERCISE OF THE
POWER TO ACCUMULATE.  BEFORE THE CREATION OF THE TRUSTS, FABRICE OWNED
ALL RIGHTS TO THE PROPERTY AND TO ITS INCOME.  BY THE TIME OF HIS DEATH
HE HAD DIVESTED HIMSELF OF ALL POWER AND CONTROL OVER ACCUMULATED
INCOME WHICH HAD BEEN ADDED TO THE PRINCIPAL, EXCEPT THE POWER TO DEAL
WITH THE INCOME FROM SUCH ADDITIONS.  WITH RESPECT TO EACH ADDITION TO
TRUST PRINCIPAL FROM ACCUMULATED INCOME, FABRICE HAD CLEARLY MADE A
"TRANSFER" AS REQUIRED BY SEC. 811(C)(1)(B)(II).  UNDER THAT SECTION,
THE POWER OVER INCOME RETAINED BY FABRICE IS SUFFICIENT TO REQUIRE THE
INCLUSION OF THE ORIGINAL CORPUS OF THE TRUST IN HIS GROSS ESTATE.  THE
ACCUMULATED INCOME ADDED TO PRINCIPAL IS SUBJECT TO THE SAME POWER AND
IS LIKEWISE INCLUDABLE.  ROUND V. COMMISSIONER, 332 F.2D 590; ESTATE OF
YAWKEY V. COMMISSIONER, 12 T.C. 1164.  (FN5) 

RESPONDENTS RELY UPON TWO CASES IN WHICH THE TAX COURT AND TWO
CIRCUIT COURTS OF APPEALS HAVE CONCLUDED THAT WHERE AN IRREVOCABLE
INTER VIVOS TRANSFER IN TRUST, NOT INCOMPLETE IN ANY RESPECT, IS
SUBJECTED TO TAX AS A GIFT IN CONTEMPLATION OF DEATH UNDER SEC. 811(C),
THE INCOME OF THE TRUST ACCUMULATED PRIOR TO THE GRANTOR'S DEATH IS NOT
INCLUDABLE IN THE GROSS ESTATE.  COMMISSIONER V. GIDWITZ' ESTATE, 196
F.2D 813, AFFIRMING 14 T.C. 1263, BURNS V. COMMISSIONER, 177 F.2D 739,
AFFIRMING 9 T.C. 979.  THE COURTS IN THOSE CASES CONSIDERED THE TAXABLE
EVENT TO BE A COMPLETED INTER VIVOS TRANSFER, NOT A TRANSFER AT DEATH,
AND THE PROPERTY INCLUDABLE TO BE ONLY THE PROPERTY SUBJECT TO THAT
TRANSFER.  THE VALUE OF THAT PROPERTY, WHATEVER THE VALUATION DATE, WAS
APPARENTLY DEEMED AN ADEQUATE REFLECTION OF ANY INCOME RIGHTS INCLUDED
IN THE TRANSFER SINCE THE GRANTOR RETAINED NO INTEREST IN THE PROPERTY
AND NO POWER OVER INCOME WHICH MIGHT JUSTIFY THE ADDITION OF
SUBSEQUENTLY ACCUMULATED INCOME TO HIS OWN GROSS ESTATE.  CF. MAASS V.
HIGGINS, 312 U.S. 443. 

THIS REASONING, HOWEVER, DOES NOT SOLVE THOSE CASES ARISING UNDER
OTHER PROVISIONS OF SEC. 811.  THE COURTS IN BOTH BURNS, 9 T.C. 979,
988-989 AND GIDWITZ, 196 F.2D 813, 817-818, EXPRESSLY DISTINGUISHED
THOSE SITUATIONS WHERE THE GRANTOR RETAINS AN INTEREST IN A PROPERTY OR
ITS INCOME, OR A POWER OVER EITHER, AND HIS DEATH IS A SIGNIFICANT STEP
IN EFFECTING A TRANSFER WHICH BEGAN INTER VIVOS BUT WHICH BECOMES FINAL
AND COMPLETE ONLY WITH HIS DEMISE.  MCDERMOTT'S ESTATE FAILED TO NOTE
THIS DISTINCTION AND REPRESENTS AN ERRONEOUS EXTENSION OF GIDWITZ. 
(FN6)  IN BOTH MCDERMOTT AND THE CASE BEFORE US NOW, THE GRANTOR
RESERVED THE POWER TO ACCUMULATE OR DISTRIBUTE INCOME.  THIS POWER HE
EXERCISED BY ACCUMULATING AND ADDING INCOME TO PRINCIPAL AND THIS SAME
POWER HE HELD UNTIL THE MOMENT OF HIS DEATH WITH RESPECT TO BOTH THE
ORIGINAL PRINCIPAL AND THE ACCUMULATED INCOME.  IN THESE CIRCUMSTANCES,
SEC. 811(C)(1)(B)(II) REQUIRES INCLUSION IN FABRICE'S GROSS ESTATE OF
ALL OF THE TRUST PRINCIPAL, INCLUDING THOSE PORTIONS REPRESENTING
ACCUMULATED INCOME.  REVERSED. 

FN1  SECTION 2036 OF THE INT. REV. CODE OF 1954, AS AMENDED, 26
U.S.C. SEC. 2036 (1964 ED.), IS MATERIALLY THE SAME AS SEC.
811(C)(1)(B) OF THE INT. REV. CODE OF 1939. 

FN2  SECTION 811(D)(1) PROVIDES: 

"TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS AT
ANY TIME MADE A TRANSFER (EXCEPT IN CASE OF A BONA-FIDE SALE FOR AN
ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH), BY TRUST OR
OTHERWISE, WHERE THE ENJOYMENT THEREOF WAS SUBJECT AT THE DATE OF HIS
DEATH TO ANY CHANGE THROUGH THE EXERCISE OF A POWER (IN WHATEVER
CAPACITY EXERCISABLE) BY THE DECEDENT ALONE OR BY THE DECEDENT IN
CONJUNCTION WITH ANY OTHER PERSON (WITHOUT REGARD TO WHEN OR FROM WHAT
SOURCE THE DECEDENT ACQUIRED SUCH POWER), TO ALTER, AMEND, REVOKE, OR
TERMINATE, OR WHERE ANY SUCH POWER IS RELINQUISHED IN CONTEMPLATION OF
DECEDENT'S DEATH." 

FN3  THE FOLLOWING PROVISION IN THE TRUST FOR JANET FABRICE IS ALSO
CONTAINED IN THE OTHER TRUSTS:

"THE NET INCOME FROM THE TRUST ESTATE SHALL BE PAID, IN WHOLE OR IN
PART, TO MY DAUGHTER, JANET FABRICE, IN SUCH PROPORTIONS, AMOUNTS AND
AT SUCH TIMES AS THE TRUSTEES MAY, FROM TIME TO TIME, IN THEIR SOLE
DISCRETION, DETERMINE, OR SAID NET INCOME MAY BE RETAINED BY THE
TRUSTEES AND CREDITED TO THE ACCOUNT OF SAID BENEFICIARY, AND ANY
INCOME NOT DISTRIBUTED IN ANY CALENDAR YEAR SHALL BECOME A PART OF THE
PRINCIPAL OF THE TRUST ESTATE." 

FN4  IN MAY V. HEINER THE COURT DEALT WITH A TRUST PROVIDING FOR
PAYMENT OF INCOME TO THE SPOUSE FOR HIS LIFE, THEN TO THE GRANTOR FOR
HER LIFE, WITH REMAINDER TO THE CHILDREN.  THE CORPUS OF THE TRUST WAS
HELD NOT INCLUDABLE IN THE GROSS ESTATE UNDER REVENUE ACT OF 1918, C.
18, SEC. 402(C), 40 STAT. 1097, WHICH WAS THE PREDECESSOR OF SEC.
811(C), I.R.C.  1939, AND WHICH THEN PROVIDED FOR THE INCLUSION OF ALL
PROPERTY "  ...  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE
DECEDENT HAS AT ANY TIME MADE A TRANSFER, OR WITH RESPECT TO WHICH HE
HAS AT ANY TIME CREATED A TRUST, IN CONTEMPLATION OF OR INTENDED TO
TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS DEATH  ... ."
281 U.S. 238, 244.  THERE FOLLOWED THEN ON MARCH 2, 1931, THREE PER
CURIAM OPINIONS IN THE SAME VEIN:  BURNET V. NORTHERN TRUST CO., 283
U.S. 782 (GRANTOR RESERVED LIFE INTEREST IN INCOME); MORSMAN V. BURNET,
283 U.S. 783 (THE SAME); MCCORMICK V. BURNET, 283 U.S. 784 (TRUSTEES
DIRECTED TO ACCUMULATE INCOME SUBJECT TO POWER IN THE GRANTOR TO
REQUEST DISTRIBUTIONS FOR CERTAIN SPECIFIED PURPOSES; GRANTOR ALSO HAD
A POWER TO TERMINATE CONTINGENT UPON APPROVAL OF ANY ONE BENEFICIARY
AND A REMAINDER INTEREST CONTINGENT UPON SURVIVING ALL NAMED
BENEFICIARIES).  ON MARCH 3, 1931, SEC. 302(C) OF THE REVENUE ACT OF
1926 WAS AMENDED BY JOINT RESOLUTION TO READ AS FOLLOWS: 

"TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS AT
ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, IN CONTEMPLATION OF OR
INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH, INCLUDING A TRANSFER UNDER WHICH THE TRANSFEROR HAS RETAINED FOR
HIS LIFE OR ANY PERIOD NOT ENDING AFTER HIS DEATH (1) THE POSSESSION OR
ENJOYMENT OF, OR THE INCOME FROM, THE PROPERTY OR (2) THE RIGHT TO
DESIGNATE THE PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE
INCOME THEREFROM; EXCEPT IN CASE OF A BONA FIDE SALE FOR AN ADEQUATE
AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH."  REVENUE ACT OF
1926, C. 27, SEC. 302(C), 44 STAT. 70, AS AMENDED, C. 454, SEC. 302(C),
46 STAT. 1516. 

THROUGH VARIOUS AMENDMENTS IN OTHER YEARS, SEC. 302(C) EVOLVED INTO
SEC. 811(C), INT.  REV. CODE OF 1939. 

FN5  THIS SAME RESULT WAS REACHED, BUT WITHOUT DISCUSSION, IN ESTATE
OF SPIEGEL V. COMMISSIONER, 335 U.S. 701, UNDER THE "TAKE EFFECT IN
POSSESSION OR ENJOYMENT" PROVISION OF SEC. 811(C) AND IN COMMISSIONER
V. ESTATE OF HOLMES, 326 U.S. 480, UNDER SEC. 811(D).  OTHER CASES
REACHING THE SAME CONCLUSION UNDER SEC. 811(D) OR ITS PREDECESSORS ARE
COMMISSIONER V. HAGER'S ESTATE, 173 F.2D 613, PETITION FOR CERT.
DISMISSED, 337 U.S. 937; ESTATE OF SHOWERS V. COMMISSIONER, 14 T.C.
902; ESTATE OF GUGGENHEIM V. COMMISSIONER, 40 B.T.A. 181, AFF'D, 117
F.2D 469, CERT. DENIED, 314 U.S. 621.    FN6  THE COURT OF APPEALS IN
MCDERMOTT'S ESTATE WAS CLEARLY WRONG IN SAYING THAT THE TRANSFER THERE
INVOLVED WAS AS COMPLETE AS WAS THE TRANSFER IN GIDWITZ.  IN GIDWITZ
THE TRANSFER WAS IN TRUST AND THE GRANTOR WAS ONE OF THE TRUSTEES BUT
THERE WAS A SPECIFIC DIRECTION TO ACCUMULATE WITH NO DISCRETIONARY
POWERS IN THE TRUSTEES OVER EITHER INCOME OR PRINCIPAL.  IN MCDERMOTT,
AS IN THIS CASE, THE GRANTOR RETAINED THE POWER, WITH OTHER TRUSTEES,
TO ACCUMULATE OR DISTRIBUTE TRUST INCOME. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

IN THE 1930'S EDWARD FABRICE MADE AN IRREVOCABLE TRANSFER OF CERTAIN
PROPERTY TO TRUSTS FOR THE BENEFIT OF HIS WIFE AND DAUGHTERS.  TWELVE
YEARS LATER HE DIED.  BECAUSE OF THE PROVISIONS OF SEC.
811(C)(1)(B)(II) OF THE INTERNAL REVENUE CODE OF 1939, (FN1) THE VALUE
OF THE PROPERTY FABRICE HAD IRREVOCABLY TRANSFERRED WAS NONETHELESS
INCLUDED IN HIS GROSS ESTATE FOR ESTATE TAX PURPOSES.  THE RESPONDENTS
DO NOT QUESTION THE CORRECTNESS OF THAT DETERMINATION.  BUT IN THIS
CASE THE COURT HOLDS THAT THE ACCUMULATED INCOME WHICH THAT PROPERTY
GENERATED DURING THE 12 YEARS THAT ELAPSED AFTER FABRICE HAD
IRREVOCABLY TRANSFERRED IT IS ALSO TO BE INCLUDED IN HIS GROSS ESTATE
UNDER SEC. 811(C)(1)(B)(II).  I THINK THE COURT MISREADS THE STATUTE. 

BY ITS TERMS THE STATUTORY PROVISION APPLIES ONLY TO PROPERTY "OF
WHICH THE DECEDENT HAS AT ANY TIME MADE A TRANSFER."  FABRICE "MADE A
TRANSFER" ONLY OF THE ORIGINAL TRUST CORPUS.  HE NEVER "MADE A
TRANSFER" OF THE INCOME WHICH THE CORPUS THEREAFTER PRODUCED, WHETHER
ACCUMULATED OR NOT.  (FN2) I CAN PUT THE MATTER NO MORE CLEARLY THAN
DID THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN COMMISSIONER V.
MCDERMOTT'S ESTATE, 222 F.2D 665, 668: 

"IRRESPECTIVE OF ALL OTHER CONSIDERATIONS, PROPERTY TO BE INCLUDIBLE
MUST HAVE BEEN TRANSFERRED.  OBVIOUSLY, THE ACCUMULATIONS HERE INVOLVED
WERE NOT TRANSFERRED BY THE DECEDENT TO THE TRUSTEE.  IT IS TRUE, OF
COURSE, THAT THE ACCUMULATIONS REPRESENTED THE FRUIT DERIVED FROM THE
PROPERTY WHICH WAS TRANSFERRED BUT, EVEN SO, CONGRESS DID NOT MAKE
PROVISION FOR INCLUDING THE FRUIT, IT PROVIDED ONLY FOR THE PROPERTY
TRANSFERRED.  IF IT DESIRED AND INTENDED TO INCLUDE THE ACCUMULATIONS,
IT WOULD HAVE BEEN A SIMPLE MATTER FOR IT TO HAVE SO STATED." 

SEE ALSO MICHIGAN TRUST CO. V. KAVANAUGH, 284 F.2D 502, 506-507 (C.A.
6TH CIR.). 

NOTHING IN THE LEGISLATIVE HISTORY PERSUADES ME THAT THE STATUTE
SHOULD NOT BE APPLIED AS IT WAS WRITTEN, AND I WOULD THEREFORE AFFIRM
THE JUDGMENT. 

FN1  THE RELEVANT TEXT OF THE STATUTE IS SET OUT ON PAGE 628 OF THE
COURT'S OPINION. 

FN2  THE VALUE OF THE ORIGINAL TRUST CORPUS AT THE TIME OF TRANSFER
AND AT THE TIME OF FABRICE'S DEATH NO DOUBT REFLECTED ITS INCOME
PRODUCING CAPACITY. 
..END :





















FEDERAL TRADE COMMISSION V. BORDEN CO. 383 U.S. 637 


NO. 106.  ARGUED JANUARY 19, 1966.  - DECIDED MARCH 23, 1966.  - 339
F.2D 133, REVERSED AND REMANDED. 


RESPONDENT PRODUCES AND SELLS EVAPORATED MILK UNDER ITS NATIONALLY
ADVERTISED BORDEN NAME, AND MARKETS PHYSICALLY AND CHEMICALLY IDENTICAL
MILK UNDER VARIOUS PRIVATE BRANDS OWNED BY ITS CUSTOMERS.  THE FTC
FOUND THE MILK TO BE OF LIKE GRADE AND QUALITY AS REQUIRED FOR THE
APPLICABILITY OF SEC. 2(A) OF THE ROBINSON-PATMAN ACT, HELD THE PRICE
DIFFERENTIAL TO BE DISCRIMINATORY, ASCERTAINED THE REQUISITE ADVERSE
EFFECT ON COMPETITION, REJECTED RESPONDENT'S CLAIM OF COST
JUSTIFICATION AND ISSUED A CEASE-AND-DESIST ORDER.  THE COURT OF
APPEALS SET ASIDE THE FTC ORDER ON THE GROUND THAT AS A MATTER OF LAW
PRIVATE LABEL MILK WAS NOT OF THE SAME GRADE AND QUALITY AS BORDEN
BRAND MILK.  HELD:  LABELS DO NOT DIFFERENTIATE PRODUCTS FOR THE
PURPOSE OF DETERMINING GRADE OR QUALITY UNDER SEC. 2(A) OF THE ACT,
EVEN THOUGH ONE LABEL MAY HAVE MORE CUSTOMER APPEAL AND COMMAND A
HIGHER PRICE IN THE MARKETPLACE.  PP. 639-647. 

(A)  THIS HAS BEEN THE LONG-STANDING VIEW OF THE FTC, AND ITS
CONSTRUCTION OF THE ACT IS ENTITILED TO RESPECT.  FEDERAL TRADE
COMMISSION V. MANDEL BROTHERS, INC., 359 U.S. 385, 391.  P. 640. 

(B)  THIS CONSTRUCTION OF THE STATUTE IS SUPPORTED BY THE LEGISLATIVE
HISTORY AND FURTHERS THE PURPOSE AND POLICY OF THE ACT.  PP. 641-645. 

(C)  ECONOMIC REALITIES ARE NOT IGNORED, BUT ECONOMIC FACTORS
INHERENT IN BRAND NAMES AND NATIONAL ADVERTISING ARE NOT TO BE
CONSIDERED IN THE JURISDICTIONAL INQUIRY UNDER THE STATUTORY "LIKE
GRADE AND QUALITY" TEST.  PP. 645-646. 

(D)  TRANSACTIONS LIKE THOSE INVOLVED HERE MAY BE EXAMINED BY THE FTC
UNDER SEC. 2(A) TO DETERMINE, SUBJECT TO JUDICIAL REVIEW, WHETHER THE
PRICE DIFFERENTIAL IS DISCRIMINATORY, WHETHER COMPETITION MAY BE
INJURED, AND WHETHER THE DIFFERENTIAL IS COST-JUSTIFIED OR IS
DEFENSIBLE AS A GOOD-FAITH EFFORT TO MEET A COMPETITOR'S PRICE.  P.
646. 

(E)  THE QUESTION OF WHETHER THE FTC'S RULINGS UNDER SEC. 2(B) OF THE
ACT ARE INCONSISTENT WITH ITS CONSTRUCTION OF SEC. 2(A) IS NOT BEFORE
THIS COURT AND IS NOT PASSED UPON.  PP. 646-647. 

FEDERAL TRADE COMMISSION V. BORDEN CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE BORDEN COMPANY, RESPONDENT HERE, PRODUCES AND SELLS EVAPORATED
MILK UNDER THE BORDEN NAME, A NATIONALLY ADVERTISED BRAND.  AT THE SAME
TIME BORDEN PACKS AND MARKETS EVAPORATED MILK UNDER VARIOUS PRIVATE
BRANDS OWNED BY ITS CUSTOMERS.  THIS MILK IS PHYSICALLY AND CHEMICALLY
IDENTICAL WITH THE MILK IT DISTRIBUTES UNDER ITS OWN BRAND BUT IS SOLD
AT BOTH THE WHOLESALE AND RETAIL LEVEL AT PRICES REGULARLY BELOW THOSE
OBTAINED FOR THE BORDEN BRAND MILK.  THE FEDERAL TRADE COMMISSION FOUND
THE MILK SOLD UNDER THE BORDEN AND THE PRIVATE LABELS TO BE OF LIKE
GRADE AND QUALITY AS REQUIRED FOR THE APPLICABILITY OF SEC. 2(A) OF THE
ROBINSON-PATMAN ACT, (FN1) HELD THE PRICE DIFFERENTIAL TO BE
DISCRIMINATORY WITHIN THE MEANING OF THE SECTION, ASCERTAINED THE
REQUISITE ADVERSE EFFECT ON COMMERCE, REJECTED BORDEN'S CLAIM OF COST
JUSTIFICATION AND CONSEQUENTLY ISSUED A CEASE-AND-DESIST ORDER.  THE
COURT OF APPEALS SET ASIDE THE COMMISSION'S ORDER ON THE SOLE GROUND
THAT AS A MATTER OF LAW, THE CUSTOMER LABEL MILK WAS NOT OF THE SAME
GRADE AND QUALITY AS THE MILK SOLD UNDER THE BORDEN BRAND.  339 F.2D
133.  BECAUSE OF THE IMPORTANCE OF THIS ISSUE, WHICH BEARS ON THE REACH
AND COVERAGE OF THE ROBINSON-PATMAN ACT, WE GRANTED CERTIORARI.  382
U.S. 807.  WE NOW REVERSE THE DECISION OF THE COURT OF APPEALS AND
REMAND THE CASE TO THAT COURT FOR THE DETERMINATION OF THE REMAINING
ISSUES RAISED BY RESPONDENT BORDEN IN THAT COURT.  CF.  FEDERAL TRADE
COMM'N V. ANHEUSER-BUSCH, INC., 363 U.S. 536, 542. 

THE POSITION OF BORDEN AND OF THE COURT OF APPEALS IS THAT THE
DETERMINATION OF LIKE GRADE AND QUALITY, WHICH IS A THRESHOLD FINDING
ESSENTIAL TO THE APPLICABILITY OF SEC. 2(A), MAY NOT BE BASED SOLELY ON
THE PHYSICAL PROPERTIES OF THE PRODUCTS WITHOUT REGARD TO THE BRAND
NAMES THEY BEAR AND THE RELATIVE PUBLIC ACCEPTANCE THESE BRANDS ENJOY -
"CONSIDERATION SHOULD BE GIVEN TO ALL COMMERCIALLY SIGNIFICANT
DISTINCTIONS WHICH AFFECT MARKET VALUE, WHETHER THEY BE PHYSICAL OR
PROMOTIONAL."  339 F.2D, AT 137.  HERE, BECAUSE THE MILK BEARING THE
BORDEN BRAND REGULARLY SOLD AT A HIGHER PRICE THAN DID THE MILK WITH A
BUYER'S LABEL, THE COURT CONSIDERED THE PRODUCTS TO BE "COMMERCIALLY"
DIFFERENT AND HENCE OF DIFFERENT "GRADE" FOR THE PURPOSES OF SEC. 2(A),
EVEN THOUGH THEY WERE PHYSICALLY IDENTICAL AND OF EQUAL QUALITY. 
ALTHOUGH A MERE DIFFERENCE IN BRAND WOULD NOT IN ITSELF DEMONSTRATE A
DIFFERENCE IN GRADE, DECIDED CUSTOMER PREFERENCE FOR ONE BRAND OVER
ANOTHER, REFLECTED IN THE WILLINGNESS TO PAY A HIGHER PRICE FOR THE
WELL-KNOWN BRAND, WAS, IN VIEW OF THE COURT OF APPEALS, SUFFICIENT TO
DIFFERENTIATE CHEMICALLY IDENTICAL PRODUCTS AND TO PLACE THE PRICE
DIFFERENTIAL BEYOND THE REACH OF SEC. 2(A). 

WE REJECT THIS CONSTRUCTION OF SEC. 2(A), AS DID BOTH THE EXAMINER
AND THE COMMISSION IN THIS CASE.  THE COMISSION'S VIEW IS THAT LABELS
DO NOT DIFFERENTIATE PRODUCTS FOR THE PURPOSE OF DETERMINING GRADE OR
QUALITY, EVEN THOUGH THE ONE LABEL MAY HAVE MORE CUSTOMER APPEAL AND
COMMAND A HIGHER PRICE IN THE MARKETPLACE FROM A SUBSTANTIAL SEGMENT OF
THE PUBLIC.  THAT THIS IS THE COMMISSION'S LONG-STANDING INTERPRETATION
OF THE PRESENT ACT, AS WELL AS OF SEC. 2 OF THE CLAYTON ACT BEFORE ITS
AMENDMENT BY THE ROBINSON-PATMAN ACT, (FN2) MAY BE GATHERED FROM THE
COMMISSION'S DECISIONS DATING BACK TO 1936.  WHITAKER CABLE CORP., 51
F.T.C. 958 (1955); PAGE DAIRY CO., 50 F.T.C. 395 (1953); UNITED STATES
RUBBER CO., 46 F.T.C. 998 (1950); UNITED STATES RUBBER CO., 28 F.T.C.
1489 (1939); HANSEN INOCULATOR CO., 26 F.T.C. 303 (1938); GOODYEAR TIRE
& RUBBER CO., 22 F.T.C. 232 (1936).  THESE VIEWS OF THE AGENCY ARE
ENTITLED TO RESPECT, FEDERAL TRADE COMM'N V. MANDEL BROTHERS, INC., 359
U.S. 385, 391, AND REPRESENT A MORE REASONABLE CONSTRUCTION OF THE
STATUTE THAN THAT OFFERED BY THE COURT OF APPEALS.  (FN3) 

OBVIOUSLY THERE IS NOTHING IN THE LANGUAGE OF THE STATUTE INDICATING
THAT GRADE, AS DISTINGUISHED FROM QUALITY, IS NOT TO BE DETERMINED BY
THE CHARACTERISTICS OF THE PRODUCT ITSELF, BUT BY CUSTOMER PREFERENCES,
BRAND ACCEPTABILITY OR WHAT CUSTOMERS THINK OF IT AND ARE WILLING TO
PAY FOR IT. MOREOVER, WHAT LEGISLATIVE HISTORY THERE IS CONCERNING THIS
QUESTION SUPPORTS THE COMMISSION'S CONSTRUCTION OF THE STATUTE RATHER
THAN THAT OF THE COURT OF APPEALS. 

DURING THE 1936 HEARINGS ON THE PROPOSED AMENDMENTS TO SEC. 2 OF THE
CLAYTON ACT, THE ATTENTION OF THE CONGRESS WAS SPECIFICALLY CALLED TO
THE QUESTION OF THE APPLICABILITY OF SEC. 2 TO THE PRACTICE OF A
MANUFACTURER SELLING HIS PRODUCT UNDER HIS NATIONALLY ADVERTISED BRAND
AT A DIFFERENT PRICE THAN HE CHARGED WHEN THE PRODUCT WAS SOLD UNDER A
PRIVATE LABEL.  BECAUSE IT WAS FEARED THAT THE ACT WOULD REQUIRE THE
ELIMINATION OF SUCH PRICE DIFFERENTIALS, HEARINGS ON H.R. 4995 BEFORE
THE HOUSE COMMITTEE ON THE JUDICIARY, 74TH CONG., 2D SESS., P. 355, AND
BECAUSE PRIVATE BRANDS "WOULD THUS BE PUT OUT OF BUSINESS BY THE
NATIONALLY ADVERTISED BRANDS," IT WAS SUGGESTED THAT THE PROPOSED SEC.
2(A) BE AMENDED SO AS TO APPLY ONLY TO SALES OF COMMODITIES OF "LIKE
GRADE, QUALITY AND BRAND."  ID., AT 421.  THERE WAS STRONG OBJECTION TO
THE AMENDMENT AND IT WAS NOT ADOPTED BY THE COMMITTEE.  (FN4)  THE
REJECTION OF THIS AMENDMENT ASSUMES PARTICULAR SIGNIFICANCE SINCE IT
WAS POINTED OUT IN THE HEARINGS THAT THE LEGALITY OF PRICE
DIFFERENTIALS BETWEEN PROPRIETARY AND PRIVATE BRANDS WAS THEN PENDING
BEFORE THE FEDERAL TRADE COMMISSION IN GOODYEAR TIRE & RUBBER CO., 22
F.T.C.  232.  BY THE TIME THE COMMITTEE REPORT WAS WRITTEN, THE
COMMISSION HAD DECIDED GOODYEAR.  THE REPORT QUOTED FROM THE DECISION
AND INTERPRETED IT AS HOLDING THAT GOODYEAR HAD VIOLATED THE ACT
BECAUSE "AT NO TIME DID IT OFFER TO ITS OWN DEALERS PRICES ON GOODYEAR
BRANDS OF TIRES WHICH WERE COMPARABLE TO PRICES AT WHICH RESPONDENT WAS
SELLING TIRES OF EQUAL OR COMPARABLE QUALITY TO SEARS, ROEBUCK & CO." 
H.R. REP. NO. 2287, 74TH CONG., 2D SESS., P. 4. 

DURING THE DEBATES ON THE BILL, REPRESENTATIVE PATMAN, ONE OF THE
BILL'S SPONSORS, WAS ASKED ABOUT THE PRIVATE LABEL ISSUE.  HIS BRIEF
RESPONSE IS WHOLLY CONSISTENT WITH THE COMMISSION'S INTERPRETATION OF
SEC. 2(A), 80 CONG. REC. 8115: 

"MR. TAYLOR OF SOUTH CAROLINA.  THERE HAS GROWN UP A PRACTICE ON THE
PART OF MANUFACTURERS OF MAKING CERTAIN BRANDS OF GOODS FOR PARTICULAR
CHAIN STORES.  IS THERE ANYTHING IN THIS BILL CALCULATED TO REMEDY THAT
SITUATION? 

"MR. PATMAN.  ...  I HAVE NOT TIME TO DISCUSS THAT FEATURE, BUT THE
BILL WILL PROTECT THE INDEPENDENTS IN THAT WAY, BECAUSE THEY WILL HAVE
TO SELL TO THE INDEPENDENTS AT THE SAME PRICE FOR THE SAME PRODUCT
WHERE THEY PUT THE SAME QUALITY OF MERCHANDISE IN A PACKAGE, AND THIS
WILL REMEDY THE SITUATION TO WHICH THE GENTLEMAN REFERS. 

"MR. TAYLOR OF SOUTH CAROLINA.  IRRESPECTIVE OF THE BRAND. 

"MR. PATMAN.  YES; SO LONG AS IT IS THE SAME QUALITY  ...  ." 

THE COMMISSION'S CONSTRUCTION OF THE STATUTE ALSO APPEARS TO US TO
FURTHER THE PURPOSE AND POLICY OF THE ROBINSON-PATMAN ACT.  SUBJECT TO
SPECIFIED EXCEPTIONS AND DEFENSES, SEC. 2(A) PROSCRIBES UNEQUAL
TREATMENT OF DIFFERENT CUSTOMERS IN COMPARABLE TRANSACTIONS, BUT ONLY
IF THERE IS THE REQUISITE EFFECT UPON COMPETITION, ACTUAL OR
POTENTIAL.  BUT IF THE TRANSACTIONS ARE DEEMED TO INVOLVE GOODS OF
DISPARATE GRADE OR QUALITY, THE SECTION HAS NO APPLICATION AT ALL AND
THE COMMISSION NEVER REACHES EITHER THE ISSUE OF DISCRIMINATION OR THAT
OF ANTICOMPETITIVE IMPACT.  WE DOUBT THAT CONGRESS INTENDED TO
FORECLOSE THESE INQUIRIES IN SITUATIONS WHERE A SINGLE SELLER MARKETS
THE IDENTICAL PRODUCT UNDER SEVERAL DIFFERENT BRANDS, WHETHER HIS OWN,
HIS CUSTOMERS' OR BOTH.  SUCH TRANSACTIONS ARE TOO LADEN WITH POTENTIAL
DISCRIMINATION AND ADVERSE COMPETITIVE EFFECT TO BE EXCLUDED FROM THE
REACH OF SEC. 2(A) BY PERMITTING A DIFFERENCE IN GRADE TO BE
ESTABLISHED BY THE LABEL ALONE OR BY THE LABEL AND ITS CONSUMER
APPEAL.  (FN5) 

IF TWO PRODUCTS, PHYSICALLY IDENTICAL BUT DIFFERENTLY BRANDED, ARE TO
BE DEEMED OF DIFFERENT GRADE BECAUSE THE SELLER REGULARLY AND
SUCCESSFULLY MARKETS SOME QUANTITY OF BOTH AT DIFFERENT PRICES, THE
SELLER COULD, AS FAR AS SEC. 2(A) IS CONCERNED, MAKE EITHER PRODUCT
AVAILABLE TO SOME CUSTOMERS AND DENY IT TO OTHERS, HOWEVER
DISCRIMINATORY THIS MIGHT BE AND HOWEVER DAMAGING TO COMPETITION. 
THOSE WHO WERE OFFERED ONLY ONE OF THE TWO PRODUCTS WOULD BE BARRED
FROM COMPETING FOR THOSE CUSTOMERS WHO WANT OR MIGHT BUY THE OTHER. 
THE RETAILER WHO WAS PERMITTED TO BUY AND SELL ONLY THE MORE EXPENSIVE
BRAND WOULD HAVE NO CHANCE TO SELL TO THOSE WHO ALWAYS BUY THE CHEAPER
PRODUCT OR TO CONVINCE OTHERS, BY EXPERIENCE OR OTHERWISE, OF THE FACT
WHICH HE AND ALL OTHER DEALERS ALREADY KNOW - THAT THE CHEAPER PRODUCT
IS ACTUALLY IDENTICAL WITH THAT CARRYING THE MORE EXPENSIVE LABEL. 

THE SELLER, TO ESCAPE THE ACT, WOULD HAVE ONLY TO SUCCEED IN SELLING
SOME UNSPECIFIED AMOUNT OF EACH PRODUCT TO SOME UNSPECIFIED PORTION OF
HIS CUSTOMERS, HOWEVER LARGE OR SMALL THE PRICE DIFFERENTIAL MIGHT BE.
THE SELLER'S PRICING AND BRANDING POLICY, BY BEING SUCCESSFUL, WOULD
APPARENTLY VALIDATE ITSELF BY CREATING A DIFFERENCE IN "GRADE" AND THUS
TAKING ITSELF BEYOND THE PURVIEW OF THE ACT.  (FN6) 

OUR HOLDING NEITHER IGNORES THE ECONOMIC REALITIES OF THE MARKETPLACE
NOR DENIES THAT SOME LABELS WILL COMMAND A HIGHER PRICE THAN OTHERS, AT
LEAST FROM SOME PORTION OF THE PUBLIC.  BUT IT DOES MEAN THAT "THE
ECONOMIC FACTORS INHERENT IN BRAND NAMES AND NATIONAL ADVERTISING
SHOULD NOT BE CONSIDERED IN THE JURISDICTIONAL INQUIRY UNDER THE
STATUTORY 'LIKE GRADE AND QUALITY' TEST."  REPORT OF THE ATTORNEY
GENERAL'S NATIONAL COMMITTEE TO STUDY THE ANTITRUST LAWS 158 (1955). 
AND IT DOES MEAN THAT TRANSACTIONS LIKE THOSE INVOLVED IN THIS CASE MAY
BE EXAMINED BY THE COMMISSION UNDER SEC. 2(A).  THE COMMISSION WILL
DETERMINE, SUBJECT TO JUDICIAL REIVEW, WHETHER THE DIFFERENTIAL UNDER
ATTACK IS DISCRIMINATORY WITHIN THE MEANING OF THE ACT, WHETHER
COMPETITION MAY BE INJURED, AND WHETHER THE DIFFERENTIAL IS COST
JUSTIFIED OR IS DEFENSIBLE AS A GOOD-FAITH EFFORT TO MEET THE PRICE OF
A COMPETITOR.  "TANGIBLE CONSUMER PREFERENCES AS BETWEEN BRANDED AND
UNBRANDED COMMODITIES SHOULD RECEIVE DUE LEGAL RECOGNITION IN THE MORE
FLEXIBLE 'INJURY' AND 'COST JUSTIFICATION' PROVISIONS OF THE STATUTE." 
ID., AT 159.  THIS, WE THINK, IS PRECISELY WHAT CONGRESS INTENDED.  THE
ARGUMENTS FOR EXEMPTING PRIVATE BRAND SELLING FROM SEC. 2(A) ARE,
THEREFORE, MORE APPROPRIATELY ADDRESSED TO THE CONGRESS THAN TO THIS
COURT.  (FN7) 

THE COURT OF APPEALS SUGGESTED THAT THE COMMISSION'S VIEWS OF LIKE
GRADE AND QUALITY FOR THE PURPOSES OF SEC. 2(A) CANNOT BE SQUARED WITH
ITS RULINGS IN CASES WHERE A SELLER PRESENTS THE DEFENSE UNDER SEC.
2(B) (FN8) THAT HE IS IN GOOD FAITH MEETING THE EQUALLY LOW PRICE OF A
COMPETITOR.  (FN9)  IN THOSE CASES, IT IS SAID, THE COMMISSION HAS
GIVEN FULL RECOGNITION TO THE SIGNIFICANCE OF THE HIGHER PRICES
COMMANDED BY THE NATIONALLY ADVERTISED BRAND "IN HOLDING THAT A SELLER
WHO REDUCES THE PRICE OF HIS PREMIUM PRODUCT TO THE LEVEL OF HIS NON
PREMIUM COMPETITIORS IS NOT MERELY MEETING COMPETITION, BUT
UNDERCUTTING IT."  339 F.2D, AT 138. 

THE COMMISSION, ON THE OTHER HAND, SEES NO INCONSISTENCY BETWEEN ITS
PRESENT DECISION AND ITS SEC. 2(B) CASES.  IN ITS VIEW, THE ISSUE UNDER
SEC. 2(B) OF WHETHER A SELLER'S LOWER PRICE IS A GOOD-FAITH MEETING OF
COMPETITION INVOLVES CONSIDERATIONS DIFFERENT FROM THOSE PRESENTED BY
THE JURISDICTIONAL QUESTION OF "LIKE GRADE AND QUALITY" UNDER SEC.
2(A). 

WE NEED NOT RESOLVE THESE CONTRARY POSITIONS.  THE ISSUE WE HAVE HERE
RELATES TO SEC. 2(A), NOT TO SEC. 2(B), AND WE THINK THE COMMISSION HAS
RESOLVED IT CORRECTLY.  THE SEC. 2(B) CASES ARE NOT NOW BEFORE US AND
WE DO NOT VENTURE TO DECIDE THEM.  THE JUDGMENT OF THE COURT OF APPEALS
IS REVERSED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SECTION 2(A) OF THE CLAYTON ACT, 38 STAT. 730 (1914), AS AMENDED
BY THE ROBINSON-PATMAN ACT, 15 U.S.C. SEC. 13(A) (1964 ED.), PROVIDES
IN PERTINENT PART: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY, WHERE EITHER OR ANY OF THE PURCHASES INVOLVED IN SUCH
DISCRIMINATION ARE IN COMMERCE, WHERE SUCH COMMODITIES ARE SOLD FOR
USE, CONSUMPTION, OR RESALE WITHIN THE UNITED STATES OR ANY TERRITORY
THEREOF OR THE DISTRICT OF COLUMBIA OR ANY INSULAR POSSESSION OR OTHER
PLACE UNDER THE JURISDICTION OF THE UNITED STATES, AND WHERE THE EFFECT
OF SUCH DISCRIMINATION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION OR
TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE, OR TO INJURE,
DESTROY, OR PREVENT COMPETITION WITH ANY PERSON WHO EITHER GRANTS OR
KNOWINGLY RECEIVES THE BENEFIT OF SUCH DISCRIMINATION, OR WITH
CUSTOMERS OF EITHER OF THEM:  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  ...  ."    FN2  A PROVISO TO SEC.
2 OF THE ORIGINAL CLAYTON ACT EXCEPTED PRICE DISCRIMINATION "ON ACCOUNT
OF DIFFERENCES IN THE GRADE, QUALITY, OR QUANTITY OF THE COMMODITY SOLD
...  ."  38 STAT. 730 (1914). 

FN3  THE COMMENTATORS ARE SOMEWHAT DIVIDED ON THE DISPUTE INVOLVED IN
THIS CASE.  SUPPORTING THE COMMISSION'S VIEW ARE THE REPORT OF THE
ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE ANTITRUST LAWS 158
(1955); AUSTIN, PRICE DISCRIMINATION AND RELATED PROBLEMS UNDER THE
ROBINSON-PATMAN ACT 39 (2D ED. 1959); PATMAN, THE ROBINSON-PATMAN ACT
27 (1938); EDWARDS, THE PRICE DISCRIMINATION LAW 31, 463-464 (1959);
SEIDMAN, PRICE DISCRIMINATION CASES, REPRINTED IN 2 HOFFMANN'S
ANTITRUST LAW AND TECHNIQUES 409, 424-428 (1963).  CONTRARY VIEWS ARE
EXPRESSED BY A MINORITY OF THE ATTORNEY GENERAL'S COMMITTEE; IN ROWE,
PRICE DISCRIMINATION UNDER THE ROBINSON-PATMAN ACT 75 (1962); AND IN
CASSADY & GRETHER, THE PROPER INTERPRETATION OF "LIKE GRADE AND
QUALITY" WITHIN THE MEANING OF SECTION 2(A) OF THE ROBINSON-PATMAN ACT,
30 SO. CAL. L. REV. 241 (1957). 

FN4  MR. H.B. TEEGARDEN, WHO WAS THEN COUNSEL TO THE UNITED STATES
WHOLESALE GROCERS ASSOCIATION, AND WHO APPARENTLY PLAYED A LARGE PART
IN DRAFTING THE BILL, HEARINGS ON H.R.  4995 BEFORE THE HOUSE COMMITTEE
ON THE JUDICIARY, 74TH CONG., 1ST SESS., P. 9, SUPPLEMENTED HIS ORAL
TESTIMONY WITH A LETTER ADDRESSED IN PART TO THE PROPOSED AMENDMENT: 

"TO AMEND THE BILL BY INSERTING 'AND BRANDS,' AFTER THE WORDS
'COMMODITIES OF LIKE GRADE AND QUALITY,' AS SUGGESTED BY JUDGE WATKINS,
ALTHOUGH IT MAY SEEM HARMLESS AT FIRST SIGHT, IS A SPECIOUS SUGGESTION
THAT WOULD DESTROY ENTIRELY THE EFFICACY OF THE BILL AGAINST LARGER
BUYERS.  SO AMENDED, THE BILL WOULD IMPOSE NO LIMITATION WHATEVER UPON
PRICE DIFFERENTIALS EXCEPT AS BETWEEN DIFFERENT PURCHASERS OF THE SAME
BRAND.  BUT WHERE GOODS ARE PUT UP UNDER A PRIVATE BRAND, THERE CAN
ONLY BE ONE PURCHASER, NAMELY THE ONE FOR WHOM THE BRAND IS DESIGNED. 
NEITHER KROGER NOR ANY INDEPENDENT COULD USE AN A.&P. PRIVATE BRAND OF
CANNED FRUIT, FOR EXAMPLE; AND TO SO AMEND THE BILL WOULD LEAVE EVERY
MANUFACTURER FREE TO PUT UP HIS STANDARD GOODS UNDER A PRIVATE BRAND
FOR A PARTICULAR PURCHASER AND GIVE HIM ANY PRICE DISCOUNT OR
DISCRIMINATIONS THAT HE MIGHT DEMAND. 

"UNDER THE PATMAN BILL AS IT STANDS, MANUFACTURERS ARE STILL FREE TO
PUT UP THEIR PRODUCTS UNDER PRIVATE BRANDS; BUT IF THEY DO SO FOR ONE
PURCHASER UNDER HIS PRIVATE BRAND, THEN THEY MUST BE READY TO DO SO ON
THE SAME TERMS, RELATIVE TO THEIR COMPARATIVE COSTS, FOR A COMPETING
PURCHASER UNDER HIS PRIVATE BRAND; AND UNLESS THAT EQUALITY OF
TREATMENT IS REQUIRED AND ASSURED, THE DISCRIMINATIONS AT WHICH THE
BILL IS AIMED CANNOT BE SUPPRESSED."  ID., 2D SESS., AT 469. 

FN5  BORDEN ARGUES THAT IT SPENDS LARGE SUMS TO INSURE THE HIGH
QUALITY OF ITS BORDEN BRAND MILK ON CUSTOMERS' SHELVES, INFERRING THAT
THERE REALLY IS A DIFFERENCE BETWEEN ITS OWN MILK AND THE MILK SOLD
UNDER PRIVATE LABELS, AT LEAST BY THE TIME IT REACHES THE CONSUMER.  OF
COURSE, IF BORDEN COULD PROVE THIS DIFFERENCE, IT IS UNLIKELY THAT THE
CASE WOULD BE HERE.  THE FINDINGS ARE TO THE CONTRARY IN THIS CASE AND
WE WRITE ON THE PREMISE THAT THE TWO PRODUCTS ARE PHYSICALLY THE SAME
AT THE TIME OF CONSUMER PURCHASE.  BORDEN'S EXTRA EXPENSES IN
CONNECTION WITH ITS OWN MILK ARE MORE RELEVANT TO THE COST
JUSTIFICATION ISSUE THAN TO THE QUESTION WE HAVE BEFORE US. 

FN6  THE MARKET ACCEPTABILITY TEST WOULD HARDLY STOP WITH INSULATING
FROM INQUIRY THE PRICE DIFFERENTIAL BETWEEN PROPRIETARY AND PRIVATE
LABEL SALES.  THAT TEST WOULD ALSO IMMUNIZE FROM THE ACT SALES AT
DIFFERENT PRICES OF THE SAME PRODUCT UNDER TWO DIFFERENT PRODUCER-OWNED
LABELS, THE ONE BEING LESS ADVERTISED AND HAVING LESS MARKET
ACCEPTABILITY THAN THE OTHER.  AND IF IT IS "CONSUMER PREFERENCES,"
DISSENTING OPINION, P. 648, WHICH CREATE THE DIFFERENCE IN GRADE OR
QUALITY, WHY SHOULD NOT BORDEN BE ABLE TO DISCRIMINATE BETWEEN TWO
PURCHASERS OF PRIVATE LABEL MILK, AS LONG AS ONE LABEL COMMANDS A
HIGHER PRICE FROM CONSUMERS THAN THE OTHER AND HENCE IS OF A DIFFERENT
GRADE AND QUALITY?  IN THIS CONTEXT PERHAPS THE MARKET ACCEPTABILITY
TEST WOULD BE REFINED TO PRECLUDE THIS DIFFERENTIAL ON THE GROUNDS THAT
BORDEN'S CUSTOMER, AS DISTINGUISHED FROM THE CONSUMER, WILL NOT PAY
MORE THAN HIS COMPETITOR FOR PRIVATE LABEL MILK AND THEREFORE THE MILK
SOLD BY BORDEN UNDER ONE PRIVATE BRAND IS REALLY OF THE SAME GRADE AND
QUALITY AS THE MILK SOLD UNDER THE OTHER BRAND EVEN THOUGH ULTIMATE
CONSUMERS WILL PAY MORE FOR ONE THAN THE OTHER.  TAKING THIS APPROACH,
IF BORDEN PACKED FOR ONE WHOLESALE CUSTOMER UNDER TWO PRIVATE LABELS,
ONE HAVING MORE CONSUMER APPEAL THAN THE OTHER BECAUSE OF THE
CUSTOMER'S OWN ADVERTISING PROGRAM, BORDEN MUST SELL BOTH BRANDS AT THE
SAME PRICE IT CHARGES OTHER PRIVATE LABEL CUSTOMERS BECAUSE ALL SUCH
MILK IS OF THE SAME GRADE AND QUALITY.  AT THE SAME TIME, THE CUSTOMER
BUYING FROM BORDEN UNDER TWO LABELS COULD HIMSELF SELL ONE LABEL AT A
REDUCED PRICE WITHOUT INQUIRY UNDER SEC 2(A) BECAUSE THE MILK IN ONE
CONTAINER IS NO LONGER OF THE SAME GRADE AND QUALITY AS THAT IN THE
OTHER, ALTHOUGH BOTH THE MILK AND THE CONTAINERS CAME FROM BORDEN. 
SUCH AN APPROACH WOULD OBVIOUSLY FOCUS NOT ON CONSUMER PREFERENCE AS
DETERMINATIVE OF GRADE AND QUALITY BUT ON WHO SPENT THE ADVERTISING
MONEY THAT CREATED THE PREFERENCE - BORDEN'S CUSTOMER, NOT BORDEN,
CREATED THE PREFERENCE AND HENCE THE MILK IS OF THE SAME GRADE AND
QUALITY IN BORDEN'S HANDS BUT NOT IN ITS CUSTOMER'S.  THE DISSENT WOULD
EXEMPT THE EFFECTIVE ADVERTISER FROM THE ACT.  WE THINK CONGRESS
INTENDED TO REMIT HIM TO HIS DEFENSES UNDER THE ACT, INCLUDING THAT OF
COST JUSTIFICATION. 

FN7  THIS IS NOT, OF COURSE, A HELPFUL SUGGESTION TO THOSE WHO THINK
THE CONGRESSIONAL REMEDY WOULD BE "VERY DIFFICULT IF NOT IMPOSSIBLE"
AND WHO THUS PREFER THE MORE "REASONABLE APPROACH" THROUGH THE COURTS. 
SEE CASSADY & GRETHER, SUPRA, N. 3, AT 277. 

FN8  SECTION 2(B), 15 U.S.C. SEC. 13(B) (1964 ED.), PROVIDES AS
FOLLOWS: 

"UPON PROOF BEING MADE, AT ANY HEARING ON A COMPLAINT UNDER THIS
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." 

FN9  THE COURT OF APPEALS RELIED UPON CALLAWAY MILLS CO., SUB NOM.
BIGELOW-SANFORD CARPET CO., CCH TRADE REG. REP. TRANSFER BINDER, 1963
1965, PARA. 16,800; ANHEUSER-BUSCH, INC., 54 F.T.C. 277 (1957);
STANDARD OIL CO., 49 F.T.C. 923 (1953); AND MINNEAPOLIS-HONEYWELL
REGULATOR CO., 44 F.T.C. 351 (1948).  BORDEN ADDS GERBER PRODUCTS CO.
V. BEECH-NUT LIFE SAVERS CO., 160 F. SUPP. 916 (D.C.S.D.N.Y. 1958). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

I CANNOT AGREE THAT MERE PHYSICAL OR CHEMICAL IDENTITY BETWEEN
PREMIUM AND PRIVATE LABEL BRANDS IS, WITHOUT MORE, A SUFFICIENT BASIS
FOR A FINDING OF "LIKE GRADE AND QUALITY" WITHIN THE MEANING OF SEC.
2(A) OF THE ROBINSON-PATMAN ACT.  THE CONCLUSION THAT A PRODUCT THAT
TRAVELS AT A PREMIUM IN THE MARKETPLACE IS OF "LIKE GRADE AND QUALITY"
WITH PRODUCTS OF INFERIOR COMMERCIAL VALUE IS NOT REQUIRED BY THE
LANGUAGE OF THE ROBINSON-PATMAN ACT, BY ITS LOGIC, OR BY ITS
LEGISLATIVE HISTORY. 

IT IS UNDISPUTED THAT THE PHYSICAL ATTRIBUTES AND CHEMICAL
CONSTITUENTS OF BORDEN'S PREMIUM AND PRIVATE LABEL BRANDS OF EVAPORATED
MILK ARE IDENTICAL.  IT IS ALSO UNDISPUTED THAT THE PREMIUM AND PRIVATE
LABEL BRANDS ARE NOT COMPETITIVE AT THE SAME PRICE, AND THAT IF THE
PRIVATE LABEL MILK IS TO BE SOLD AT ALL, IT MUST BE SOLD AT PRICES
SUBSTANTIALLY BELOW THE PRICE COMMANDED BY BORDEN'S PREMIUM BRAND. 
(FN1)  THIS SIMPLE MARKET FACT NO MORE THAN REFLECTS THE OBVIOUS
ECONOMIC REALITY THAT CONSUMER PREFERENCES CAN AND DO CREATE
SIGNIFICANT COMMERCIAL DISTINCTIONS BETWEEN OTHERWISE SIMILAR
PRODUCTS.  BY PURSUING PRODUCT COMPARISON ONLY SO FAR AS THE RESULT OF
LABORATORY ANALYSIS, THE COURT IGNORES A MOST RELEVANT ASPECT OF THE
INQUIRY INTO THE QUESTION OF "LIKE GRADE AND QUALITY" UNDER SEC. 2(A):
WHETHER THE PRODUCTS ARE DIFFERENT IN THE EYES OF THE CONSUMER.  (FN2) 

THERE IS NOTHING INTRINSIC TO THE CONCEPTS OF GRADE AND QUALITY THAT
REQUIRES EXCLUSION OF THE COMMERCIAL ATTRIBUTES OF A PRODUCT FROM THEIR
DEFINITION.  THE PRODUCT PURCHASED BY A CONSUMER INCLUDES NOT ONLY THE
CHEMICAL COMPONENTS THAT ANY COMPETENT LABORATORY CAN ITEMIZE, BUT ALSO
A HOST OF COMMERCIAL INTANGIBLES THAT DISTINGUISH THE PRODUCT IN THE
MARKETPLACE.  (FN3)  THE PREMIUM PAID FOR BORDEN BRAND MILK REFLECTS
THE CONSUMER'S AWARENESS, PROMOTED THROUGH ADVERTISING, THAT THESE
COMMERCIAL ATTRIBUTES ARE PART AND PARCEL OF THE PREMIUM PRODUCT HE IS
PURCHASING.  (FN4)  THE RECORD IN THE PRESENT CASE INDICATES THAT
WHOLESALE PURCHASERS OF BORDEN'S PRIVATE LABEL BRANDS CONTINUED TO
PURCHASE THE PREMIUM BRAND IN UNDIMINISHED QUANTITIES.  THE RECORD ALSO
INDICATES THAT RETAIL PURCHASERS WHO BOUGHT THE PREMIUM BRAND DID SO
WITH THE SPECIFIC EXPECTATION OF ACQUIRING A PRODUCT OF PREMIUM
QUALITY.  (FN5)  CONTRARY TO THE COURT'S SUGGESTION, ANTE, P. 644, THIS
CONSUMER EXPECTATION CANNOT ACCURATELY BE CHARACTERIZED AS A
MISAPPREHENSION.  BORDEN TOOK EXTENSIVE PRECAUTIONS TO INSURE THAT A
FLAWED PRODUCT DID NOT REACH THE CONSUMER.  (FN6)  NONE OF THESE
PRECAUTIONS WAS TAKEN FOR THE PRIVATE BRAND MILK PACKED BY BORDEN. 
(FN7)  AN IMPORTANT INGREDIENT OF THE PREMIUM BRAND INHERES IN THE
CONSUMER'S BELIEF, MEASURED BY PAST SATISFACTION AND THE MARKET
REPUTATION ESTABLISHED BY BORDEN FOR ITS PRODUCTS, THAT TOMORROW'S CAN
WILL CONTAIN THE SAME PREMIUM PRODUCT AS THAT PURCHASED TODAY.  TO SAY,
AS THE COURT DOES, THAT THESE AND OTHER INTANGIBLES, WHICH COMPRISE AN
IMPORTANT PART OF THE COMMERCIAL VALUE OF A PRODUCT, ARE NOT SUFFICIENT
TO CONFER ON BORDEN'S PREMIUM BRAND A "GRADE" OR "QUALITY" DIFFERENT
FROM THAT OF PRIVATE LABEL BRANDS IS TO IGNORE THE OBVIOUS MARKET
ACCEPTANCE OF THAT DIFFERENCE.  "COMMERCIALLY THE 'ADVERTISED' BRANDS
HAD COME IN THE MINDS OF THE PUBLIC TO MEAN A DIFFERENT GRADE OF MILK. 
THE PUBLIC MAY HAVE BEEN WRONG; ...  IT MAY HAVE BEEN RIGHT  ...  .
BUT RIGHT OR WRONG, THAT IS WHAT IT BELIEVED, AND ITS BELIEF WAS THE
IMPORTANT THING."  BORDEN'S FARM PRODUCTS CO. V. TEN EYCK, 11 F. SUPP.
599, 601 (D.C.S.D.N.Y.)(OPINION OF L. HAND, J.).  (FN8) 

THE SPARE LEGISLATIVE HISTORY OF THE ROBINSON-PATMAN ACT IS IN NO WAY
INCONSISTENT WITH A CONSTRUCTION OF SEC. 2(A) THAT INCLUDES MARKET
ACCEPTANCE IN THE TEST OF "LIKE GRADE AND QUALITY."  THAT HISTORY
ESTABLISHES NO MORE THAN THAT MERE DIFFERENCES IN BRAND OR DESIGN,
UNACCOMPANIED BY ANY GENUINE PHYSICAL, CHEMICAL, OR MARKET DISTINCION,
ARE INSUFFICIENT TO NEGATE A FINDING OF "LIKE GRADE AND QUALITY" UNDER
SEC. 2(A).  (FN9)  NOTHING THAT I HAVE FOUND IN THE LEGISLATIVE HISTORY
SPEAKS WITH PRECISION TO THE SOLE ISSUE BEFORE US HERE, THE APPLICATION
OF SEC. 2(A) TO PHYSICALLY OR CHEMICALLY IDENTICAL PRODUCTS THAT ARE IN
FACT DIFFERENTIATED BY SUBSTANTIAL MARKET FACTORS.  (FN10) 

NEITHER THE REMARKS OF REPRESENTATIVE PATMAN, ANTE, P. 643, NOR THE
LETTER OF MR. TEEGARDEN, ANTE, P. 641, N. 4, SUPPORTS THE COURT'S
CONCLUSION THAT CONGRESS INTENDED PHYSICAL AND CHEMICAL IDENTITY TO BE
THE SOLE TOUCHSTONE OF "LIKE GRADE AND QUALITY."  ASIDE FROM THE
OBVIOUSLY CASUAL NATURE OF MR. PATMAN'S REPLY TO THE QUESTION
CONCERNING THE EFFECT OF THE ACT ON PRIVATE LABEL BRANDS, (FN11) HIS
REMARKS GO EMBARRASSINGLY FURTHER THAN THE CIRCUMSPECT READING SOUGHT
TO BE GIVEN THEM BY THE COURT.  ON ITS FACE, MR. PATMAN'S STATEMENT
MAKES THE BLANKET ASSERTION THAT ALL PRODUCTS OF THE SAME QUALITY MUST
BE SOLD AT THE SAME PRICE.  AS THUS STATED, PREMIUM BRANDS WOULD HAVE
TO BE SOLD AT THE SAME PRICE AS PRIVATE LABEL BRANDS, REGARDLESS OF
INJURY TO COMPETITION, COST JUSTIFICATION, OR OTHER AVAILABLE DEFENSES
UNDER THE ACT.  THESE UNDIFFERENTIATED REMARKS ARE THEREFORE OF LITTLE
ASSISTANCE IN THE DETERMINATION OF CONGRESSIONAL INTENT.  FAR FROM
SUPPORTING THE COURT'S INTERPRETATION OF SEC. 2(A), THE FINAL PARAGRAPH
OF THE TEEGARDEN LETTER SUGGESTS THAT MR. TEEGARDEN CONSIDERED THE BILL
TO HAVE NO EFFECT ON A PREMIUM BRAND PRODUCER'S DECISION TO FURNISH
PRIVATE LABEL BRANDS TO PURCHASERS, SO LONG AS THE PRIVATE LABEL BRANDS
WERE MADE AVAILABLE ON THE SAME TERMS TO ALL PURCHASERS.  MR.
TEEGARDEN'S CONCERN WAS WITH THE PREVENTION OF DISCRIMINATION BETWEEN
PURCHASERS ON THE BASIS OF ARTIFICIAL DIFFERENCES IN BRAND.  (FN12)
THAT SAME CONCERN, AND NO MORE, IS ALL THAT MAY LEGITIMATELY BE READ
INTO THE REJECTION BY CONGRESS OF THE PROPOSAL TO ADD "AND BRANDS" TO
THE "LIKE GRADE AND QUALITY" PROVISION IN THE BILL.  BY REJECTING THAT
PROPOSAL, IT CAN BE INFERRED ONLY THAT CONGRESS CONTEMPLATED "NO
BLANKET EXEMPTION ...  FOR 'LIKE' PRODUCTS WHICH DIFFERED ONLY IN BRAND
...  , LEAVING OPEN THE APPLICATION OF THE ACT TO DIFFERENTIATED
PRODUCTS REFLECTING MORE THAN A NOMINAL OR SUPERFICIAL VARIATION." 
ROWE, PRICE DISCRIMINATION UNDER THE ROBINSON-PATMAN ACT 65 (1962). 
THE REFERENCES IN THE LEGISLATIVE HEARINGS AND THE HOUSE COMMITTEE
REPORT TO THE COMMISSION'S DECISION IN GOODYEAR TIRE & RUBBER CO., 22
F.T.C. 232, ARE EQUALLY INCONCLUSIVE ON THE RELEVANCE OF COMMERCIAL
ACCEPTANCE TO THE DETERMINATION OF "LIKE GRADE AND QUALITY."  THE
STRIKING ASPECT OF THAT CASE IS THAT GOODYEAR CONCEDED THAT THE
DIFFERENTLY BRANDED TIRES INVOLVED IN THE PROCEEDING WERE OF LIKE GRADE
AND QUALITY, 22 F.T.C., AT 290.  MOREOVER, THE TIRES PURCHASED BY
SEARS, ROEBUCK & CO. FROM GOODYEAR AND SOLD UNDER SEARS'"ALL STATE"
LABEL WERE ADVERTISED BY SEARS AS OBTAINED FROM "THE LEADING TIRE
MANUFACTURER" AND "THE WORLD'S FOREMOST TIRE MANUFACTURER," SO THAT THE
MARKET INDEPENDENCE OF SEARS' PRIVATE BRAND WAS COMPROMISED.  ID., AT
295, 297.    THE OTHER ADMINISTRATIVE PRECEDENTS RELIED ON BY THE COURT
ALSO FAIL TO ESTABLISH ANY CONSISTENTLY SETTLED INTERPRETATION BY THE
FEDERAL TRADE COMMISSION THAT PHYSICAL IDENTITY IS THE SOLE TOUCHSTONE
OF "LIKE GRADE AND QUALITY."  THOSE DECISIONS SINGULARLY FAIL TO FOCUS
ON THE SIGNIFICANCE OF CONSUMER PREFERENCE AS A RELEVANT FACTOR IN THE
TEST OF GRADE AND QUALITY.  (FN13)  MOREOVER, THE COMMISSION HAS ITSELF
EXPLICITLY RESORTED TO CONSUMER PREFERENCE OR MARKETABILITY TO RESOLVE
THE ISSUE OF "LIKE GRADE AND QUALITY" IN CASES WHERE MINOR PHYSICAL
VARIATIONS ACCOMPANY A DIFFERENCE IN PRODUCT BRAND.  (FN14)  THE
CAPRICE OF THE COMMISSION'S PRESENT DISTINCTION THUS INVITES BORDEN TO
INCORPORATE SLIGHT TANGIBLE VARIATIONS IN ITS PRIVATE LABEL PRODUCTS,
IN ORDER TO BRING ITSELF WITHIN THE COMMISSION'S CURRENT PRACTICE OF
CONSIDERING MARKET PREFERENCES IN SUCH CASES. 

THE COMMISSION'S DETERMINATION OF "LIKE GRADE AND QUALITY" UNDER SEC.
2(A) IN THIS CASE IS SERIOUSLY INCONSISTENT WITH THE POSITION IT HAS
TAKEN UNDER SEC. 2(B) IN CASES WHERE A SELLER HAS PRESENTED THE DEFENSE
THAT HE IS IN GOOD FAITH MEETING THE EQUALLY LOW PRICE OF A
COMPETITOR.  THE COMMISSION DECISIONS ARE CLEAR THAT THE "MEETING
COMPETITION" DEFENSE IS NOT AVAILABLE TO A SELLER WHO REDUCES THE PRICE
OF HIS PREMIUM PRODUCT TO THE LEVEL OF NONPREMIUM PRODUCTS SOLD BY HIS
COMPETITORS.  THE COMMISSION DECISIONS UNDER SEC. 2(B) EMPHASIZE THAT
MARKET PREFERENCE MUST BE CONSIDERED IN DETERMINING WHETHER A
COMPETITOR IS "MEETING" RATHER THAN "BEATING" COMPETITION.  IN STANDARD
OIL CO., 49 F.T.C. 923, 952, THE COMMISSION PUT IT BALDLY: 

"IN THE RETAIL DISTRIBUTION OF GASOLINE PUBLIC ACCEPTANCE RATHER THAN
CHEMICAL ANALYSIS OF THE PRODUCT IS THE IMPORTANT COMPETITIVE FACTOR." 
(FN15) 

COULD THE COMMISSION UNDER SEC. 2(B) NOW PREVENT BORDEN FROM REDUCING
THE PRICE OF ITS PREMIUM MILK TO THE LEVEL OF PRIVATE LABEL MILK?  I
CAN SEE NO WAY THAT IT COULD, SHORT OF MAINTAINING A MANIFESTLY
UNSTABLE EQUILIBRIUM BETWEEN SEC. 2(A) AND SEC. 2(B).  BY ADOPTING A
KEYHOLE APPROACH TO SEC. 2(A), THE COURT MANAGES TO ESCAPE RESOLUTION
OF THE QUESTION, BUT IT DOES SO AT THE COST OF CASTING GRAVE DOUBT ON
WHAT I HAD REGARDED AS AN IMPORTANT BULWARK OF SEC. 2(B) AGAINST A
RECOGNIZED COMPETITIVE EVIL. 

THE COURT GIVES NO SUBSTANTIAL ECONOMIC JUSTIFICATION FOR ITS
CONSTRUCTION OF SEC.  2(A).  (FN16) THE PRINCIPAL RATIONALE OF THE
RESTRICTION OF THAT SECTION TO COMMODITIES OF "LIKE GRADE AND QUALITY"
IS SIMPLY THAT IT IS NOT FEASIBLE TO MEASURE DISCRIMINATION AND INJURY
TO COMPETITION WHERE DIFFERENT PRODUCTS ARE INVOLVED.  THAT RATIONALE
IS AS VALID FOR ECONOMIC AS FOR PHYSICAL VARIATION BETWEEN PRODUCTS. 
ONCE A SUBSTANTIAL ECONOMIC DIFFERENCE BETWEEN PRODUCTS IS FOUND,
THEREFORE, THE INQUIRY OF THE COMMISSION SHOULD BE ENDED, JUST AS IT IS
ENDED WHEN A SUBSTANTIAL PHYSICAL DIFFERENCE IS FOUND. 

IN SPITE OF THE ASSERTION OF THE ATTORNEY GENERAL'S REPORT QUOTED BY
THE COURT, IT IS UNLIKELY THAT ECONOMIC DIFFERENCES BETWEEN PREMIUM AND
PRIVATE LABEL BRANDS CAN REALISTICALLY BE TAKEN INTO ACCOUNT BY THE
COMMISSION UNDER THE "INJURY TO COMPETITION" AND "COST JUSTIFICATION"
PROVISIONS OF SEC. 2(A).  (FN17)  EVEN IF RELEVANT COST DATA CAN BE
AGREED UPON, THE COST RATIO BETWEEN BORDEN'S PREMIUM AND PRIVATE LABEL
PRODUCTS IS HARDLY THE MOST SIGNIFICANT FACTOR IN BORDEN'S PRICING
DECISION AND MARKET RETURN ON THOSE PRODUCTS.  MOREOVER, EVEN IF PRICE
DISCRIMINATION IS FOUND HERE, ITS EFFECT ON COMPETITION MAY PROVE EVEN
MORE DIFFICULT TO DETERMINE THAN IN MORE CONVENTIONAL CASES OF PRICE
DISCRIMINATION UNDER SEC. 2(A).  CF. FTC V. MORTON SALT CO., 334 U.S.
37; UNITED BISCUIT CO. V. FTC, 350 F.2D 615 (C.A. 7TH CIR.). 

THE THREAT PRESENTED TO PRIMARY LINE COMPETITION BY BORDEN'S
DISTRIBUTION OF PREMIUM AND PRIVATE LABEL BRANDS IS UNCLEAR.  NO
ALLEGATION WAS MADE THAT BORDEN HAS USED ITS DOMINANT POSITION IN THE
PREMIUM BRAND MARKET TO SUBSIDIZE PREDATORY PRICE-CUTTING CAMPAIGNS IN
THE PRIVATE LABEL MARKET.  BORDEN PACKS ITS PRIVATE LABEL BRANDS FOR
NATIONAL DISTRIBUTION, SO THAT THIS CASE IS ESSENTIALLY DIFFERENT FROM
THOSE IN WHICH GEOGRAPHICAL PRICE DISCRIMINATIONS ARE INVOLVED. 
FURTHER, BORDEN'S PRIVATE LABEL BRANDS ARE AIMED IN PART AT A
DIFFERENT, MORE PRICE-CONSCIOUS CLASS OF CONSUMER.  BECAUSE RELEVANT
ECONOMIC FACTORS DIFFER IN THE PREMIUM AND PRIVATE LABEL MARKETS,
CONVENTIONAL NOTIONS OF PRICE DISCRIMINATION UNDER THE ROBINSON-PATMAN
ACT MAY NOT BE APPLICABLE.  (FN18)  MORE IMPORTANT, BORDEN'S EXTENSIVE
DISTRIBUTION OF ITS PRIVATE LABEL BRANDS HAS INTRODUCED SIGNIFICANT LOW
COST COMPETITION FOR BORDEN'S OWN PREMIUM PRODUCT.  THUS, THE LARGE
RETAIL CHAINS AND COOPERATIVE BUYER ORGANIZATIONS THAT ARE BORDEN'S
CHIEF PRIVATE LABEL CUSTOMERS REPRESENT A SIGNIFICANT SOURCE OF
COUNTERVAILING POWER TO THE OLIGOPOLY PATTERN OF EVAPORATED MILK
PRODUCTION.  THE RISE OF THIS SORT OF COMPETITION IS WELL KNOWN IN
OTHER PARTS OF THE FOOD INDUSTRY.  (FN19)  IN THESE CIRCUMSTANCES, THE
ANTICOMPETITIVE LEVERAGE AGAINST PRIMARY LINE COMPETITION AVAILABLE TO
BORDEN THROUGH ITS PRIVATE LABEL PRODUCTION IS SHARPLY CURTAILED. 
THERE IS, THEREFORE, NO REAL RESEMBLANCE IN THIS CASE TO THE SERIOUS
DISCRIMINATORY PRACTICES THAT THE ROBINSON-PATMAN ACT WAS ENACTED TO
PREVENT. 

THE POTENTIAL ECONOMIC IMPACT OF BORDEN'S DISTRIBUTION OF PRIVATE
LABEL BRANDS ON SECONDARY LINE COMPETITION IS EQUALLY AMBIGUOUS.  IT IS
TRUE THAT A MARKET TEST OF "LIKE GRADE AND QUALITY" WOULD ENABLE
BORDEN, SO FAR AS SEC. 2(A) IS CONCERNED, TO MAKE PRIVATE LABEL BRANDS
SELECTIVELY AVAILABLE TO CUSTOMERS OF ITS PREMIUM BRAND.  NOT ALL
WHOLESALE AND RETAIL DEALERS WHO CARRY BORDEN'S PREMIUM BRAND WOULD BE
ABLE, AS OF RIGHT, TO TAKE ADVANTAGE OF BORDEN'S PRIVATE LABEL
PRODUCTION.  BUT THE COMMISSION COULD STILL APPLY SEC. 2(A) WITH FULL
FORCE AGAINST DISCRIMINATION BETWEEN PRIVATE LABEL CUSTOMERS.  AND THE
GOVERNMENT COULD STILL INVOKE SEC. 2 OF THE SHERMAN ACT OR SEC. 5 OF
THE FEDERAL TRADE COMMISSION ACT TO DEAL WITH OTHER FORMS OF PRICE
DISCRIMINATION BY BORDEN AGAINST ITS CUSTOMERS OR COMPETITORS. 

UNDER THE COURT'S VIEW OF SEC. 2(A), BORDEN MUST NOW MAKE PRIVATE
LABEL MILK AVAILABLE TO ALL CUSTOMERS OF ITS PREMIUM BRAND.  (FN20)
BUT THAT INTERPRETATION OF SEC. 2(A) IS HARDLY CALCULATED TO SPEED
PRIVATE LABEL BRANDS TO THE SHELVES OF RETAILERS.  TO AVOID SUPPLYING A
PRIVATE LABEL BRAND TO A PREMIUM BRAND CUSTOMER, BORDEN NEED ONLY FORGO
FURTHER SALES OF ITS PREMIUM BRAND TO THAT CUSTOMER.  IT IS, THEREFORE,
NOT UNLIKELY THAT THE COURT'S DECISION WILL FOSTER A DISCRIMINATION
GREATER THAN THAT WHICH IT PURPORTS TO ELIMINATE, SINCE RETAILERS
PREVIOUSLY ABLE TO OBTAIN THE PREMIUM BORDEN BRAND BUT NOT A PRIVATE
LABEL BRAND, MAY NOW FIND THEIR ACCESS TO THE PREMIUM BRAND FORECLOSED
AS WELL. 

IN AUTOMATIC CANTEEN CO. V. FTC, 346 U.S. 61, 63, THIS COURT
CAUTIONED AGAINST CONSTRUCTION OF THE ROBINSON-PATMAN ACT IN A MANNER
THAT MIGHT "GIVE RISE TO A PRICE UNIFORMITY AND RIGIDITY IN OPEN
CONFLICT WITH THE PURPOSES OF OTHER ANTITRUST LEGISLATION."  TODAY THAT
WARNING GOES UNHEEDED.  IN THE GUISE OF PROTECTING PRODUCERS AND
PURCHASERS FROM DISCRIMINATORY PRICE COMPETITION, THE COURT IGNORES
LEGITIMATE MARKET PREFERENCES AND ENDOWS THE FEDERAL TRADE COMMISSION
WITH AUTHORITY TO DISRUPT PRICE RELATIONSHIPS BETWEEN PRODUCTS WHOSE
IDENTITY HAS BEEN MEASURED IN THE LABORATORY BUT REJECTED IN THE
MARKETPLACE.  I DO NOT BELIEVE THAT ANY SUCH POWER WAS CONFERRED UPON
THE COMMISSION BY CONGRESS, AND I WOULD, THEREFORE, AFFIRM THE JUDGMENT
OF THE COURT OF APPEALS. 

FN1  FOR EXAMPLE, ONE WHOLESALER, A WITNESS FOR THE COMMISSION,
STATED: 

"PRIVATE LABEL MERCHANDISE IS NO GOOD FOR NOBODY UNLESS THERE IS A
PRICE ON IT  ...  .  IN THE RETAIL TRADE AS A WHOLE THEY HAVEN'T BEEN
TOO MUCH INTERESTED IN PRIVATE LABEL EVAPORATED MILK  ... FRANKLY IF IT
WAS THE SAME PRICE AS ADVERTISED OR 15 CENTS OR 25 CENTS A CASE UNDER,
IT WOULDN'T SELL, THEY COULDN'T GIVE IT AWAY  ...  .  IT HAS GOT TO
HAVE $1.50 TO $2 A CASE SPREAD TO MAKE IT INTERESTING." 

FN2  NO SUGGESTION IS MADE THAT ANY OF THE PRIVATE LABEL BRANDS
INVOLVED IN THIS CASE SHOW SIGNIFICANT COMMERCIAL DIFFERENTIATION FROM
ONE ANOTHER.  IT IS POSSIBLE, OF COURSE, THAT BY EXTENSIVE PROMOTION
PRIVATE LABEL BRANDS COULD ACHIEVE CONSUMER ACCEPTANCE EQUIVALENT TO
THAT OF A PREMIUM BRAND.  IN THAT SITUATION, THE PRODUCTS WOULD STILL
BE ECONOMICALLY DIFFERENT UNDER THE MARKET TEST OF SEC. 2(A) ELUCIDATED
IN THIS OPINION, SINCE THE RELEVANT COMPARISON WOULD EXCLUDE
PROMOTIONAL EFFORTS BY PERSONS OTHER THAN THE PRODUCER OF THE PREMIUM
BRAND.  THUS, PROMOTIONAL ACTIVITIES BY CUSTOMERS OF BORDEN IN THE
PRESENT CASE COULD NOT AFFECT THE DETERMINATION OF "LIKE GRADE AND
QUALITY" WITH REGARD TO SALES BY BORDEN.  CF. JORDAN, ROBINSON-PATMAN
ACT ASPECTS OF DUAL DISTRIBUTION BY BRAND OF CONSUMER GOODS, 50 CORNELL
L.Q. 394, 406-407 (1965). 

FN3  CF. CHAMBERLIN, THE THEORY OF MONOPOLISTIC COMPETITION 56 (8TH
ED. 1962): 

"A GENERAL CLASS OF PRODUCT IS DIFFERENTIATED IF ANY SIGNIFICANT
BASIS EXISTS FOR DISTINGUISHING THE GOODS (OR SERVICES) OF ONE SELLER
FROM THOSE OF ANOTHER.  SUCH A BASIS MAY BE REAL OR FANCIED, SO LONG AS
IT IS OF ANY IMPORTANCE WHATEVER TO BUYERS, AND LEADS TO A PREFERENCE
FOR ONE VARIETY OF THE PRODUCT OVER ANOTHER.  WHERE SUCH
DIFFERENTIATION EXISTS, EVEN THOUGH IT BE SLIGHT, BUYERS WILL BE PAIRED
WITH SELLERS, NOT BY CHANCE AND AT RANDOM (AS UNDER PURE COMPETITION),
BUT ACCORDING TO THEIR PREFERENCES. 

"DIFFERENTIATION MAY BE BASED UPON CERTAIN CHARACTERISTICS OF THE
PRODUCT ITSELF, SUCH AS EXCLUSIVE PATENTED FEATURES; TRADE-MARKS; TRADE
NAMES; PECULIARITIES OF THE PACKAGE OR CONTAINER, IF ANY; OR
SINGULARITY IN QUALITY, DESIGN, COLOR, OR STYLE  ...  .  IN SO FAR AS
THESE AND OTHER INTANGIBLE FACTORS VARY FROM SELLER TO SELLER, THE
'PRODUCT' IN EACH CASE IS DIFFERENT, FOR BUYERS TAKE THEM INTO ACCOUNT,
MORE OR LESS, AND MAY BE REGARDED AS PURCHASING THEM ALONG WITH THE
COMMODITY ITSELF." 

SEE ALSO BROWN, ADVERTISING AND THE PUBLIC INTEREST:  LEGAL
PROTECTION OF TRADE SYMBOLS, 57 YALE L.J. 1165, 1181 (1948): 

"  ...  THE BUYER OF AN ADVERTISED GOOD BUYS MORE THAN A PARCEL OF
FOOD OR FABRIC; HE BUYS THE PAUSE THAT REFRESHES, THE HAND THAT HAS
NEVER LOST ITS SKILL, THE PRICELESS INGREDIENT THAT IS THE REPUTATION
OF ITS MAKER.  ALL THESE MAY BE ILLUSIONS, BUT THEY COST MONEY TO
CREATE, AND IF THE CREATORS CAN RECOUP THEIR OUTLAY, WHO IS THE
POORER?  AMONG THE MANY ILLUSIONS WHICH ADVERTISING CAN FASHION ARE
THOSE OF LAVISHNESS, REFINEMENT, SECURITY, AND ROMANCE.  SUPPOSE THE
MONETARY COST OF COMPOUNDING A PERFUME IS TRIVIAL; OF WHAT MOMENT IS
THIS IF THE ADS PROMISE, AND THE BUYER BELIEVES, THAT ROMANCE, EVEN
SEDUCTION, WILL FOLLOW ITS USE?  THE ECONOMIST, WHOSE DOUR LEXICON
DEFINES AS IRRATIONAL ANY MARKET BEHAVIOR NOT DICTATED BY A LOGICAL
PECUNIARY CALCULUS, MAY THINK IT IRRATIONAL TO BUY ILLUSIONS; BUT THERE
IS A DEGREE OF THAT KIND OF IRRATIONALITY EVEN IN ECONOMIC MAN; AND
CONSUMING MAN IS FULL OF IT." 

FN4  FOR EXAMPLE, A GROCER TESTIFIED IN THE PROCEEDINGS BEFORE THE
COMMISSION THAT: 

"PEOPLE ARE GOING INTO A GROCERY STORE TO PICK UP GROCERIES, THE
MAJORITY OF THE PEOPLE BUY SOMETHING THAT IS ADVERTISED THAT THEY HAVE
KNOWN FOR YEARS OR HEARD OF FOR YEARS OR SEE HIGHLY ADVERTISED.  THEY
KNOW IT IS A GOOD PRODUCT, THEY KNOW IT IS FANCY MERCHANDISE OR BEST
QUALITY." 

ANOTHER GROCER TESTIFIED THAT: 

"A. SOME PEOPLE SAY THEY WANT BORDEN'S SILVER COW MILK.  IN OTHER
WORDS, FOR MAYBE A COUPON ON THE SIDE OF THE CAN OR BECAUSE THEY HAVE
BEEN EDUCATED TO WANT THAT BRAND.  SOME OF THEM WON'T HAVE ANYTHING BUT
THAT.  SOME OF THEM WON'T HAVE ANYTHING EXCEPT CARNATION, AND SOME OF
THEM DON'T WANT ANYTHING EXCEPT PET. 

"Q.  THEY DON'T CARE WHAT PRICE? 

"A. IF THE DOCTOR TELLS THE WOMAN TO PUT THE BABY ON PET MILK, THAT
IS ALL SHE WANTS, YOU COULDN'T INTEREST HER IN SOMETHING ELSE. 

"Q. YOU COULDN'T GIVE HER SOMETHING ELSE, COULD YOU? 

"A. I DOUBT IF I COULD." 

FN5  THE RESULTS OF A HOUSE-TO-HOUSE SURVEY CONDUCTED FOR BORDEN BY
NATIONAL ANALYSTS, INC., INDICATED THAT CONSUMERS SELECTED BORDEN'S
PREMIUM BRAND BECAUSE OF ITS SUPERIOR QUALITY.  COMPARABLE STUDIES HAVE
REACHED A SIMILAR CONCLUSION.  CF. "MOM FEELS QUALITY, NOT AD COST,
MAKES BRAND ITEM COSTLIER, 'GOOD HOUSE' REPORTS," ADVERTISING AGE, DEC.
7, 1964, P. 30. 

FN6  BORDEN'S FOOD PRODUCTS DIVISION MAINTAINED A STAFF OF FIELD
REPRESENTATIVES WHO INSPECTED CODE-DATINGS ON CANS OF BORDEN BRAND MILK
IN RETAIL STORES, IN ORDER TO INSURE THAT OLDER MILK WAS SOLD FIRST OFF
THE RETAILER'S SHELVES.  A WITNESS FOR BORDEN TESTIFIED THAT THE
PRINCIPAL DANGERS OF LONG STORAGE WERE DISCOLORATION OF THE MILK,
PRECIPITATION OF CALCIUM AND OTHER MINERALS, AND SEPARATION AND
HARDENING OF FAT FROM THE MILK.  AS A FURTHER PRECAUTION AGAINST SALES
OF DEFECTIVE MILK, BORDEN DISPATCHED ITS MILK TO WHOLESALERS AND
RETAILERS UNDER A FIRST-PACKED, FIRST-SHIPPED ROTATION PLAN THAT
OCCASIONALLY INVOLVED HIGH-COST SHIPMENTS FROM DISTANT PLANTS OR
WAREHOUSES.  IN ADDITION, BEFORE SHIPMENT FROM A COLD STORAGE
WAREHOUSE, BORDEN "TEMPERED" ITS PREMIUM BRAND MILK IN ORDER TO PREVENT
CONDENSATION ON THE CANS, WHICH MIGHT HAVE RESULTED IN RUST TO THE CANS
AND DAMAGE TO THE LABELS.    FN7  AS COUNSEL FOR THE RESPONDENT
CANDIDLY STATED ON ORAL ARGUMENT TO THE COURT, "THE DIFFERENCE AS TO
THE PRIVATE LABEL BRAND PACKED BY BORDEN IS THAT, AS TO THAT PRODUCT,
THE BORDEN COMPANY WASHES ITS HANDS OF IT AT THE FACTORY DOOR." 

FN8  THE COURT'S SUGGESTION THAT THE COMMENTATORS ARE ABOUT EQUALLY
DIVIDED UPON THE ISSUE BEFORE US IS SOMEWHAT MISLEADING.  IT IS TRUE
THAT THE MEMBERS OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY
THE ANTITRUST LAWS, REPORT, PP. 156-159 (1955), WERE SHARPLY DIVIDED AS
TO WHETHER SIGNIFICANT CONSUMER PREFERENCES SHOULD BE TAKEN INTO
ACCOUNT UNDER THE "LIKE GRADE AND QUALITY" TEST OF SEC. 2(A).  HOWEVER,
THE VERY BRIEF DISCUSSIONS OF "LIKE GRADE AND QUALITY" IN AUSTIN, PRICE
DISCRIMINATION AND RELATED PROBLEMS UNDER THE ROBINSON-PATMAN ACT 39
(2D ED. 1959); PATMAN, COMPLETE GUIDE TO THE ROBINSON-PATMAN ACT 34-35
(1963); AND EDWARDS, THE PRICE DISCRIMINATION LAW 31, 463-464 (1959),
ARE NOT ADDRESSED TO THE RELEVANCE OF SIGNIFICANT CONSUMER PREFERENCES,
AND THE MINIMAL DISCUSSION IN SEIDMAN IS AT BEST AMBIGUOUS, PRICE
DISCRIMINATION CASES, REPRINTED IN 2 HOFFMANN'S ANTITRUST LAW AND
TECHNIQUES 409, 427-428 (1963).  THOSE CURSORY TREATMENTS GO NO FURTHER
THAN THE VIEW, WITH WHICH I WHOLLY AGREE, THAT NO BLANKET EXEMPTION
FROM SEC. 2(A) IS AVAILABLE FOR PRIVATE LABEL BRANDS.  BUT THAT VIEW IN
NO SENSE DISPOSES OF THE CONCRETE ISSUE PRESENTED IN THIS CASE. 
COMMENTATORS WHO HAVE IN FACT FOCUSSED ON THE SIGNIFICANCE OF CONSUMER
PREFERENCES UNIFORMLY FAVOR INCLUSION OF COMMERCIAL ACCEPTANCE IN THE
TEST OF "LIKE GRADE AND QUALITY."  ROWE, PRICE DIFFERENTIALS AND
PRODUCT DIFFERENTIATION:  THE ISSUES UNDER THE ROBINSON-PATMAN ACT, 66
YALE L.J. 1 (1956); ROWE, PRICE DISCRIMINATION UNDER THE ROBINSON
PATMAN ACT 62-76 (1962); CASSADY & GRETHER, THE PROPER INTERPRETATION
OF "LIKE GRADE AND QUALITY" WITHIN THE MEANING OF SECTION 2(A) OF THE
ROBINSON-PATMAN ACT, 30 SO. CAL. L. REV. 241 (1957); JORDAN, ROBINSON
PATMAN ACT ASPECTS OF DUAL DISTRIBUTION BY BRAND OF CONSUMER GOODS, 50
CORNELL L.Q. 394 (1965). 

FN9  THE COURT'S SUGGESTION, ANTE, P. 644, THAT A DIFFERENCE IN LABEL
ALONE WOULD EXCLUDE THE REACH OF SEC. 2(A) IF A MARKET TEST WERE
ACCEPTED FOR "LIKE GRADE AND QUALITY" IS NO PART OF THE PRESENT CASE
AND HAS NEVER BEEN OFFERED AS A SERIOUS INTERPRETATION OF SEC. 2(A). 
NOR IS THERE ANY ISSUE RAISED HERE AS TO WHETHER, UNDER A MARKET TEST
OF SEC. 2(A), A DUBIOUS PRICING AND BRANDING POLICY ADOPTED BY A SELLER
COULD "VALIDATE ITSELF" AND ESCAPE THE ACT BY CREATING PRECARIOUS
DISTINCTIONS IN GRADE AND QUALITY.  THE PRICE DIFFERENTIAL BETWEEN
BORDEN'S PREMIUM AND PRIVATE LABEL BRANDS IS CONCEDEDLY GROUNDED UPON A
LEGITIMATE AND STABLE MARKET PREFERENCE FOR THE PREMIUM PRODUCT. 
MOREOVER, THE COMMISSION'S WILLINGNESS TO ENGAGE IN THE EXHAUSTIVE
ANALYSIS OF INJURY TO COMPETITION AND COST JUSTIFICATION UNDER ITS
"PHYSICAL IDENTITY" TEST OF SEC. 2(A) DEMONSTRATES THAT THE
COMMISSION'S RESOURCES WOULD BE MORE THAN ADEQUATE TO DETERMINE THE
LEVEL OF COMMERCIAL PREFERENCE SUFFICIENT TO NEGATE A FINDING OF "LIKE
GRADE AND QUALITY" UNDER A MARKET TEST OF SEC. 2(A). 

FN10  CERTAIN GENERAL LANGUAGE IN THE CONGRESSIONAL REPORTS MAY BE
TAKEN, HOWEVER, AS SUPPORTING THE INTERPRETATION THAT MARKET FACTORS
ARE RELEVANT IN THE CONSTRUCTION OF SEC. 2(A).  THE REPORT OF THE HOUSE
COMMITTEE ON THE JUDICIARY STATED THAT THE GENERAL OBJECT OF THE BILL
WAS "TO AMEND SECTION 2 OF THE CLAYTON ACT SO AS TO SUPPRESS MORE
EFFECTUALLY DISCRIMINATIONS BETWEEN CUSTOMERS OF THE SAME SELLER NOT
SUPPORTED BY SOUND ECONOMIC DIFFERENCES IN THEIR BUSINESS POSITIONS
...  ."  H.R. REP. NO. 2287, 74TH CONG., 2D SESS., P. 7.  THE REPORT OF
THE SENATE COMMITTEE ON THE JUDICIARY IS PHRASED IN SUBSTANTIALLY THE
SAME LANGUAGE.  S.R. REP. NO. 1502, 74TH CONG., 2D SESS., P. 3. 

FN11  THE REMARKS OF REPRESENTATIVE PATMAN WERE EVEN MORE OFFHAND
THAN THE OPINION OF THE COURT INDICATES.  PREFACING THE PORTION OF HIS
REMARKS QUOTED BY THE COURT, MR. PATMAN SAID, "I ONLY HAVE A VERY SHORT
TIME, AND I MUST FINISH MY STATEMENT.  I HAVE NOT TIME TO DISCUSS THAT
FEATURE  ...  ." 

FN12  THE PREDOMINANT CONCERN OF CONGRESS IN ENACTING THE ROBINSON
PATMAN AMENDMENTS TO THE CLAYTON ACT WAS TO ABOLISH THE NOTORIOUS PRICE
DISCRIMINATIONS THAT INFECTED THE POST-DEPRESSION ECONOMY, ESPECIALLY
THE BLANKET IMMUNITY THEN AVAILABLE FOR QUANTITY DISCOUNTS UNDER SEC. 2
OF THE CLAYTON ACT.  AN OBVIOUS COMMERCIAL EVIL AT THE TIME WAS THE
WIDESPREAD PRACTICE OF OFFERING PRIVATE LABEL BRANDS TO FAVORED
CUSTOMERS AT RATES SUBSTANTIALLY LOWER THAN THE RATES OFFERED TO
COMPETING PURCHASERS.  THE ABORTIVE ATTEMPT, VIGOROUSLY OPPOSED BY MR.
TEEGARDEN, TO INTRODUCE "AND BRANDS" INTO THE "LIKE GRADE AND QUALITY"
PROVISION WOULD HAVE LEFT THAT EVIL COMPLETELY UNREMEDIED.  CF. 80
CONG. REC. 8234-8236 (REJECTION OF AMENDMENTS PROPOSING THE ADDITION OF
"AND DESIGN" AND "PURCHASED UNDER LIKE CONDITIONS" TO THE "LIKE GRADE
AND QUALITY" CLAUSE). 

FN13  IN HANSEN INOCULATOR CO., 26 F.T.C. 303, AND THE TWO UNITED
STATES RUBBER CO. CASES, 28 F.T.C. 1489; 46 F.T.C. 998, THE FINDING OF
"LIKE GRADE AND QUALITY" WAS EITHER CONCEDED BY THE RESPONDENT OR NOT
CHALLENGED.  IN ADDITION, IN HANSEN INOCULATOR, THERE WAS SIGNIFICANT
EVIDENCE THAT THE PRIVATE LABEL PRODUCT WAS IN FACT TRADING ON THE
REPUTATION OF THE PREMIUM PRODUCT.  FURTHER, IN HANSEN INOCULATOR, AS
IN PAGE DAIRY CO., 50 F.T.C. 395, IT IS DOUBTFUL THAT EVEN THE LABELS
ON THE TWO PRODUCTS WERE DISTINGUISHABLE.  IN WHITAKER CABLE CORP., 51
F.T.C. 958, THE RESALE PRICES OF BOTH PRODUCTS WERE IDENTICAL, SO THAT
NO COMMERCIAL PREFERENCE COULD HAVE BEEN PROVED IN ANY EVENT.  FINALLY,
IN THE FIRST UNITED STATES RUBBER CASE AND IN WHITAKER CABLE CORP.,
THERE WAS SUBSTANTIAL DISCRIMINATION BY THE SELLER BETWEEN VARIOUS
PURCHASERS OF THE PRIVATE LABEL BRANDS.  IN SETTING ASIDE THE ORDER OF
THE COMMISSION IN THE PRESENT CASE, THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT EMPHASIZED THAT IN NONE OF THESE CASES WAS THERE ANY SHOWING
THAT THE BRAND NAMES AFFECTED THE MARKET PRICE OF THE PRODUCTS SOLD. 

FN14  UNIVERSAL-RUNDLE CORP., CCH TRADE REG. REP. TRANSFER BINDER,
1963-1965, PARA. 16948, AT PP. 22003-22005 (F.T.C. DKT. 8070, JUNE 12,
1964)(DIFFERENCES IN PLUMBING FIXTURES); QUAKER OATS CO., CCH TRADE
REG. REP. TRANSFER BINDER, 1963-1965, PARA. 17134, AT P. 22215 (F.T.C.
DKT. 8112, NOV. 18, 1964)(DIFFERENCES IN FLOUR BLENDS).  COMPARE E.
EDELMANN & CO., 51 F.T.C. 978 (DIFFERENCES IN AUTOMOBILE REPLACEMENT
PARTS); BRUCE'S JUICES, INC. V. AMERICAN CAN CO., 87 F. SUPP. 985,
AFF'D 187 F.2D 919 (C.A. 5TH CIR.)(DIFFERENCES IN SIZE OF JUICE CANS);
CHAMPION SPARK PLUG CO., 50 F.T.C. 30 (DIFFERENCES IN INSULATOR AND
"RIBS" OF SPARK PLUGS).  CF. COMMENT, LIKE GRADE AND QUALITY: EMERGENCE
OF THE COMMERCIAL STANDARD, 26 OHIO STATE L.J. 294, 296-302 (1965). 
THE COMMISSION APPEARS AT ONE TIME TO HAVE HELD THAT BRAND IDENTITY MAY
CREATE A PRESUMPTION OF "LIKE GRADE AND QUALITY," REGARDLESS OF THE
EXISTENCE OF PHYSICAL DIFFERENCES BETWEEN THE PRODUCTS.  GENERAL FOODS
CORP., 52 F.T.C. 798, 817; ATLANTA TRADING CORP., 53 F.T.C. 565, 571. 
IN SETTING ASIDE THE COMMISSION'S ORDER IN ATLANTA, THE COURT OF
APPEALS FOR THE SECOND CIRCUIT STATED THAT "THE TEST OF PRODUCTS OF
LIKE GRADE AND QUALITY WAS EVOLVED TO PREVENT EMASCULATION OF THE
BUT THIS DOES NOT MEAN THAT ALL DISTINCTIONS ARE TO BE DISREGARDED." 
ATLANTA TRADING CORP. V. FTC, 258 F.2D 365, 371.  IN A FOOTNOTE TO THAT
OPINION, THE COURT OF APPEALS INDICATED THAT PRICE DIFFERENCES WERE
AMONG THE DISTINCTIONS TO BE CONSIDERED.  ID., AT 371, N. 5.  CF. ROWE,
PRICE DISCRIMINATION UNDER THE ROBINSON-PATMAN ACT 71-72 (1962). 

FN15  SEE ALSO MINNEAPOLIS-HONEYWELL REGULATOR CO., 44 F.T.C. 351,
396-397:  "TO ACCEPT THE CONTRARY PROPOSITION WOULD MEAN THAT ANY
SELLER OF A COMMODITY WHICH GENERALLY SELLS AT A PREMIUM PRICE MAY
FREELY DISCRIMINATE AMONG ITS CUSTOMERS SO LONG AS IT DOES NOT UNDERCUT
THE PRICES OF COMPETITORS"; ANHEUSER-BUSCH, INC., 54 F.T.C. 277, 302:
"IT IS EVIDENT THAT BUDWEISER COULD AND DID SUCCESSFULLY COMMAND A
PREMIUM PRICE IN THE ST. LOUIS MARKET  ...  .  THE TEST IN SUCH A CASE
IS NOT NECESSARILY A DIFFERENCE IN QUALITY BUT THE FACT THAT THE PUBLIC
IS WILLING TO BUY THE PRODUCT AT A HIGHER PRICE IN A NORMAL MARKET";
CALLAWAY MILLS CO., SUB NOM. BIGELOW-SANFORD CARPET CO., CCH TRADE REG.
REP.  TRANSFER BINDER, 1963-1965, PARA. 16,800, AT P. 21755 (F.T.C.
DKT. 7634, FEB. 10, 1964): "BOTH THE COURTS AND THE COMMISSION HAVE
CONSISTENTLY DENIED THE SHELTER OF THE MEETING COMPETITION DEFENSE TO
SELLERS WHOSE PRODUCT, BECAUSE OF  ...  INTENSE PUBLIC DEMAND, NORMALLY
COMMANDS A PRICE HIGHER THAN THAT USUALLY RECEIVED BY SELLERS OF
COMPETITIVE GOODS"; STANDARD BRANDS, INC., 46 F.T.C. 1485, 1495; GERBER
PRODUCTS CO. V. BEECH-NUT LIFE SAVERS, INC., 160 F. SUPP. 916, 920, 921
922 (D.C.S.D.N.Y.).  CF. PORTO RICAN AMERICAN TOBACCO CO. V. AMERICAN
TOBACCO CO., 30 F.2D 234, 237 (C.A.2D CIR.).  IN THE PRESENT CASE THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT SPECIFICALLY REFUSED TO "APPROVE
OF THE COMMISSION'S CONSTRUING THE ACT INCONSISTENTLY FROM ONE CASE TO
THE NEXT, AS APPEARS MOST ADVANTAGEOUS TO ITS POSITION IN A PARTICULAR
CASE."  339 F.2D 133, AT 139.  SEE THE COMMENT OF COMMISSIONER MASON:
"FIRST THE COMMISSION FINDS YOU GUILTY OF PRICE DISCRIMINATION BY
DISREGARDING POPULARITY OF GOODS, AND FINDS THE GRADE AND QUALITY OF
THE COMMODITIES IN QUESTION ARE THE SAME; THEN THEY KNOCK OUT YOUR
MEETING OF COMPETITION DEFENSE BECAUSE YOUR GOODS ARE MORE POPULAR THAN
OTHERS, EVEN IF THE COMMODITIES IN QUESTION ARE OF LIKE GRADE AND
QUALITY."  DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF
COMMODITIES OF LIKE GRADE, QUALITY AND POPULARITY, PROC. AM. BAR ASSN.
JURISTISCHE SCHLUMMERGESCHICHTE, 79 HARV. L. REV. 921, 928-929 (1966). 

FN16  THE COURT'S BRIEF DISCUSSION OF THE ADVERSE ECONOMIC EFFECT OF
THE FIFTH CIRCUIT'S RULING IS CONCERNED PRIMARILY WITH THE SUPPOSED
INJURY TO SECONDARY LINE COMPETITION.  THE PRESENT PROCEEDING AROSE AS
A DIRECT RESULT OF THE PRIMARY LINE INJURY CAUSED TO MIDWESTERN PACKERS
OF PRIVATE LABEL EVAPORATED MILK WHEN BORDEN EXPANDED ITS PLANTS IN
TENNESSEE AND SOUTH CAROLINA TO INCLUDE PRIVATE LABEL OPERATION, BUT
THE OPINION OF THE COURT NOWHERE DISCUSSES SUCH COMPETITION. 

FN17  IT IS NOT CLEAR THAT THE "INJURY TO COMPETITION" AND "COST
JUSTIFICATION" ISSUES WILL BE REACHED ON THE REMAND.  AS THE OPINION OF
THE COURT SUGGESTS, ANTE, P. 646, THE EXISTENCE OF PRICE DISCRIMINATION
IS AN ISSUE THAT REMAINS OPEN IN THE COURT OF APPEALS.  IF BORDEN IS
ABLE TO DEMONSTRATE THAT THE PRICE DIFFERENTIAL BETWEEN ITS PREMIUM AND
PRIVATE LABEL BRANDS IS NOT A PRICE DISCRIMINATION, THE INQUIRY BY THE
COMMISSION IS AT AN END, AND NO ISSUE OF INJURY TO COMPETITION OR COST
JUSTIFICATION UNDER SEC. 2(A) IS REACHED.  NOTHING IN FTC V. ANHEUSER
BUSCH, INC., 363 U.S. 536, A CASE CONCERNED ONLY WITH TERRITORIAL PRICE
DISCRIMINATION, REQUIRES AN EQUATION IN ALL CIRCUMSTANCES BETWEEN A
PRICE DIFFERENTIAL AND PRICE DISCRIMINATION.  SO LONG AS BORDEN MAKES
PRIVATE LABEL BRANDS AVAILABLE TO ALL CUSTOMERS OF ITS PREMIUM MILK, IT
IS UNLIKELY THAT PRICE DISCRIMINATION WITHIN THE MEANING OF SEC. 2(A)
CAN BE MADE OUT.  BOSS MFG. CO. V. PAYNE GLOVE CO., 71 F.2D 768, 770
771 (C.A. 8TH CIR.); AUSTIN, PRICE DISCRIMINATION AND RELATED PROBLEMS
UNDER THE ROBINSON-PATMAN ACT 21 (2D ED. 1959); ROWE, PRICE
DISCRIMINATION UNDER THE ROBINSON-PATMAN ACT, SUPRA, AT 97-99. 

FN18  CF. ADELMAN, PRICE DISCRIMINATION AS TREATED IN THE ATTORNEY
GENERAL'S REPORT, 104 U. PA. L. REV. 222, 228-230 (1955). 

FN19  SEE STAFF REPORT TO THE FEDERAL TRADE COMMISSION, ECONOMIC
INQUIRY INTO FOOD MARKETING, PART II, THE FROZEN FRUIT, JUICE AND
VEGETABLE INDUSTRY (1962); JORDAN, SUPRA, N. 8, AT 413-417. 

FN20  THE COMMISSION CONCEDES THAT THERE IS NO EVIDENCE IN THE RECORD
THAT BORDEN REFUSED TO SELL PRIVATE LABEL MILK TO ANY CUSTOMER WHO
SPECIFICALLY REQUESTED IT.  BORDEN'S PRIVATE LABEL BUSINESS IN THE
PERIOD COVERED BY THESE PROCEEDINGS WAS SUBSTANTIAL.  IN 1957, BORDEN
SOLD 4,300,000 CASES OF ITS PREMIUM BRAND EVAPORATED MILK AND 1,100,000
CASES OF PRIVATE LABEL MILK (GOVERNMENT AND EXPORT BUSINESS EXCLUDED);
NET SALES OF THESE PRODUCTS WERE $27,600,000 AND $5,700,000,
RESPECTIVELY.  A MAJOR SOURCE OF BORDEN'S PRIVATE LABEL BUSINESS WAS
PROVIDED BY COOPERATIVE ASSOCIATIONS OF WHOLESALERS AND RETAILERS, SO
THAT, IN FACT, THERE WAS AN OPPORTUNITY FOR LARGE NUMBERS OF SMALL
RETAILERS TO COMPETE IN THE SALE OF PRIVATE LABEL BRANDS OF EVAPORATED
MILK OBTAINED FROM BORDEN.  ONE SUCH GROUP, WHOSE PURCHASES ACCOUNTED
FOR 11% OF BORDEN'S PRIVATE LABEL VOLUME IN 1957, HAD MORE THAN 1,000
RETAILER MEMBERS.  NOT ALL RETAILERS, HOWEVER, AVAILED THEMSELVES OF
THE OPPORTUNITY TO MARKET PRIVATE LABEL MILK.  ONE WHOLESALER TESTIFIED
THAT, A YEAR AFTER HIS PRIVATE LABEL BRAND HAD BEEN OFFERED TO THE 600
RETAIL GROCERS IN HIS SERVICE AREA, ONLY 50 OF THE GROCERS HAD BECOME
REGULAR CUSTOMERS. 
..END :
















INTERSTATE COMMERCE COMMISSION V. ATLANTIC COAST LINE RAILROAD CO. 383
U.S. 576 


NO. 14.  ARGUED DECEMBER 6, 1965.  - DECIDED MARCH 22, 1966.  - 334 F.2D
46, REVERSED. 


UPON A COMPLAINT BY THOMSON PHOSPHATE COMPANY THE ICC FOUND THAT RATES
ON SHIPMENTS BY THOMSON ON RESPONDENT RAILROADS WERE UNJUST AND
UNREASONABLE AND THAT THE SHIPPER WAS ENTITLED TO REPARATIONS.  THE
RESPONDENTS REFUSED TO CERTIFY THOMSON'S STATEMENTS SHOWING SHIPMENTS
MADE AND THEN THE ICC DETERMINED THE AMOUNT OF REPARATIONS DUE AND
ENTERED AN ORDER DIRECTING PAYMENT.  RESPONDENTS REFUSED TO COMPLY AND
BROUGHT THIS SUIT IN THE DISTRICT COURT FOR THE MIDDLE DISTRICT OF
FLORIDA UNDER SEC 17(9) OF THE INTERSTATE COMMERCE ACT TO ENJOIN AND
ANNUL THE ICC ORDERS.  THEREAFTER THOMSON BROUGHT SUIT UNDER SEC. 16(2)
OF THE ACT IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
TO ENFORCE THE ICC'S REPARATION ORDER, BUT THAT SUIT WAS STAYED PENDING
DISPOSITION OF THE CARRIER-INITIATED ACTION.  THE DISTRICT COURT IN
FLORIDA DENIED THE ICC'S MOTION TO DISMISS WHICH ALLEGED THAT THE
CARRIERS' SOLE REMEDY WAS TO DEFEND THE SUIT BROUGHT BY THE SHIPPER
UNDER SEC. 16(2).  THE COURT SET ASIDE THE ICC ORDER ON THE GROUND THAT
THOMSON'S CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS.  THE COURT OF
APPEALS SUSTAINED THE DISTRICT COURT'S JURISDICTION AND AFFIRMED. 
HELD:  CARRIERS MAY OBTAIN FULL REVIEW OF ICC REPARATION ORDERS BY
DEFENDING ACTIONS BROUGHT BY SHIPPERS UNDER SEC. 16(2) OF THE ACT TO
ENFORCE SUCH ORDERS.  THE POLICY UNDERLYING THAT SECTION PRECLUDES THE
CARRIERS FROM OBTAINING REVIEW IN A FORUM OTHER THAN THAT CHOSEN BY THE
SHIPPERS, BUT THERE IS NO OBSTACLE TO A CROSS-PROCEEDING UNDER SEC.
17(9) BROUGHT BY THE CARRIERS IN THAT FORUM.  PP. 579-606. 

(A)  THE CARRIERS HAVE AMPLE OPPORTUNITY TO SECURE REVIEW OF THE
ICC'S ORDERS THROUGH DEFENSE OF THE SHIPPER'S SEC. 16(2) ENFORCEMENT
ACTION.  PENNSYLVANIA R. CO. V. UNITED STATES, 363 U.S. 202, AND UNITED
STATES V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426, DISTINGUISHED, AS
THOSE CASES DEALT WITH SITUATIONS WHERE THE CHALLENGED ORDERS COULD
ONLY BE REVIEWED IN SEC.  17(9) PROCEEDINGS.  PP. 589-595. 

(B)  TO EFFECTUATE THE POLICY OF ENCOURAGING PROMPT PAYMENT OF
REPARATION AWARDS EXPRESSED IN SEC. 16(2) CONGRESS PROVIDED THE SHIPPER
WITH CERTAIN PROCEDURAL AND SUBSTANTIVE BENEFITS, PARTICULARLY CHOICE
OF VENUE, WHICH WOULD NOT BE AVAILABLE IN AN ACTION INSTITUTED BY THE
CARRIER UNDER SEC. 17(9).  PP. 595-598. 

(C)  LIMITING REVIEW OF THE ICC'S ORDERS TO SEC 16(2) ENFORCEMENT
ACTIONS WOULD NOT BE LIKELY TO RESULT IN DISPARITY OF TREATMENT OF
SHIPPERS.  PP. 598-602. 

(D)  THE LANGUAGE AND HISTORY OF THE DIRECT REVIEW PROVISIONS OF SEC.
17(9) ARE CONSISTENT WITH LIMITATIONS OF REVIEW TO THE FORUM SELECTED
BY THE SHIPPER IN HIS ENFORCEMENT PROCEEDING, AND THE DIRECT REVIEW
PROCEEDING MAY BE BROUGHT AS A CROSS-ACTION IN THAT FORUM.  PP. 603
606. 

INTERSTATE COMMERCE COMMISSION V. ATLANTIC COAST LINE R. CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS BEFORE THE COURT FOR A DETERMINATION OF WHEN AND IN WHAT
PROCEEDINGS A COMMON CARRIER BY RAIL MAY CHALLENGE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION AWARDING REPARATIONS TO A SHIPPER
CLAIMING INJURY BECAUSE OF THE CARRIER'S VIOLATION OF THE ACT. 

A SHIPPER, THOMSON PHOSPHATE COMPANY, FILED A COMPLAINT WITH THE
COMMISSION ALLEGING THAT CERTAIN RATES CHARGED BY RESPONDENT RAILROADS
WERE UNJUST AND UNREASONABLE AND SEEKING REIMBURSEMENT OF THOSE
TRANSPORTATION CHARGES TO THE EXTENT THEY WERE UNLAWFUL.  INTERSTATE
COMMERCE ACT SECS. 8 AND 9, 24 STAT. 382, AS AMENDED, 49 U.S.C. SECS. 8
AND 9 (1964 ED.).  THE COMMISSION SUSTAINED THE COMPLAINT AND ISSUED A
REPORT FINDING THAT THE ASSAILED RATES WERE UNJUST AND UNREASONABLE AND
THAT THE SHIPPER WAS ENTITLED TO REPARATIONS.  THOMSON PHOSPHATE CO. V.
ATLANTIC COAST LINE R. CO., 303 I.C.C. 25 (DIV. 2, 1958).  WHEN
RESPONDENTS REFUSED TO CERTIFY THE SHIPPER'S STATEMENTS SHOWING THE
SHIPMENTS MADE DURING THE PERIOD INVOLVED, THE COMMISSION REOPENED THE
PROCEEDING FOR A DETERMINATION OF THE AMOUNT OF REPARATIONS DUE.  AFTER
SUCH ADDITIONAL PROCEEDINGS, THE COMMISSION FOUND THOMSON WAS ENTITLED
TO REPARATIONS OF $8,889.76 WITH INTEREST, AND AN ORDER WAS ENTERED
AUTHORIZING AND DIRECTING RESPONDENTS TO PAY SUCH SUM BY A SPECIFIED
DATE, LATER AMENDED TO AUGUST 28, 1961.  311 I.C.C. 315.  RESPONDENTS
REFUSED TO COMPLY WITH THE ORDER AND BROUGHT SUIT IN THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA UNDER SEC. 17(9) OF
THE INTERSTATE COMMERCE ACT, 24 STAT. 385, AS AMENDED, 49 U.S.C. SEC.
17(9), AND 28 U.S.C. SECS. 1336 AND 1398 (1964 ED.)  TO ENJOIN, SET
ASIDE, AND ANNUL THE ORDERS OF THE COMMISSION.  RESPONDENTS CLAIMED,
INTER ALIA, THAT THE COMMISSION ERRED IN FINDING THE RATES UNREASONABLE
AND IN NOT FINDING THOMSON'S CLAIMS BARRED BY THE ACT'S LIMITATION
PROVISION, INTERSTATE COMMERCE ACT SEC. 16(3), 24 STAT. 384, AS
AMENDED, 49 U.S.C. SEC. 16(3) (1964 ED.).  THOMSON, WHICH WAS NOT A
PARTY TO THE CARRIERS' ACTION, FILED IN THE SOUTHERN DISTRICT OF NEW
YORK A SUIT AGAINST RESPONDENTS AND OTHER RAILROADS TO ENFORCE THE
COMMISSION'S REPARATION AWARD PURSUANT TO SEC. 16(2) OF THE INTERSTATE
COMMERCE ACT, 49 U.S.C. SEC. 16(2) (1964 ED.).  BY STIPULATION, THE NEW
YORK CASE HAS BEEN HELD IN ABEYANCE PENDING THE OUTCOME OF THE FLORIDA
CASE, WHICH IS PRESENTLY BEFORE THIS COURT. 

THE COMMISSION MOVED TO DISMISS THE CARRIERS' INJUNCTION ACTION,
CONTENDING THAT REPARATION ORDERS ARE NOT REVIEWABLE IN SUCH A SUIT AND
THAT THE CARRIERS WERE REQUIRED TO AWAIT THE SHIPPER'S ENFORCEMENT
ACTION TO ATTACK THE COMMISSION'S ORDER.  THE FLORIDA DISTRICT COURT
DENIED THE MOTION TO DISMISS AND, ON THE MERITS, HELD THAT THOMSON'S
CLAIMS WERE BARRED BY LIMITATIONS.  213 F. SUPP. 199.  THE SOLE ISSUE
RAISED ON APPEAL WAS WHETHER THE DISTRICT COURT HAD JURISDICTION.  THE
COURT OF APPEALS AFFIRMED, SUSTAINING THE JURISDICTION OF THE FLORIDA
DISTRICT COURT.  334 F.2D 46.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THIS QUESTION IN THE ADMINISTRATION OF THE ACT.  379 U.S.
957.  WE REVERSE AND HOLD THAT WHEN THE COMMISSION ISSUES A REPARATION
ORDER, NOT ACCOMPANIED BY A CEASE-AND-DESIST ORDER, A CARRIER MAY
OBTAIN REVIEW OF THE COMMISSION'S ORDER ONLY IN THE COURT WHERE THE
SHIPPER COMMENCES ITS ENFORCEMENT ACTION - OR WHERE THE SHIPPER SEEKS
REVIEW OF THE COMMISSION'S ORDER, SEE CONSOLO V. FEDERAL MARITIME
COMM'N, POST, P. 607. 

                                             I. 

THE INTERSTATE COMMERCE ACT CONTAINS DETAILED PROVISIONS GOVERNING
THE PRESENTATION AND ADJUDICATION OF CLAIMS FOR REPARATIONS.  SECTION 8
IS THE BASIC PROVISION CREATING LIABILITY AND DECLARES THAT ANY COMMON
CARRIER BY RAIL WHICH VIOLATES THE ACT "SHALL BE LIABLE TO THE PERSON
OR PERSONS INJURED THEREBY FOR THE FULL AMOUNT OF DAMAGES SUSTAINED IN
CONSEQUENCE OF ANY SUCH VIOLATION  ...  ."  BY SEC. 9, THE COMPLAINANT
IS GIVEN THE ALTERNATIVES OF SEEKING SUCH DAMAGES BY COMPLAINT TO THE
COMMISSION, UNDER THE PROCEDURES ESTABLISHED BY SEC. 13(1), OR OF
BRINGING SUIT IN A FEDERAL DISTRICT COURT.  BUT THE PRIMARY
JURISDICTION DOCTRINE REQUIRES INITIAL SUBMISSION TO THE COMMISSION OF
QUESTIONS THAT RAISE "ISSUES OF TRANSPORTATION POLICY WHICH OUGHT TO BE
CONSIDERED BY THE COMMISSION IN THE INTERESTS OF A UNIFORM AND EXPERT
ADMINISTRATION OF THE REGULATORY SCHEME LAID DOWN BY THE ACT."  UNITED
STATES V. WESTERN PAC.  R. CO., 352 U.S. 59, 65; TEXAS & PAC. R. CO. V.
AMERICAN TIE & TIMBER CO., 234 U.S. 138.  ACCORDINGLY, A SHIPPER WHO
COMMENCES HIS SEC. 9 REPARATION PROCEEDING IN THE DISTRICT COURT WILL
NEVERTHELESS BE REQUIRED TO REPAIR TO THE COMMISSION FOR DECISION OF
ISSUES, LIKE THE REASONABLENESS OF RATES, WHICH CALL THE PRIMARY
JURISDICTION DOCTRINE INTO PLAY.  WHEN THAT OCCURS, THE COURT ORDERING
THE REFERENCE OF SUCH ISSUES TO THE COMMISSION HAS EXCLUSIVE
JURISDICTION OF ANY CIVIL ACTION TO ENFORCE, ENJOIN, SET ASIDE, OR
ANNUL A COMMISSION ORDER ARISING OUT OF THE REFERRAL, 28 U.S.C. SEC.
1336(B) (1964 ED.), SUCH ACTION TO BE BROUGHT WITHIN 90 DAYS OF THE
ENTRY OF THE COMMISSION'S FINAL ORDER, 28 U.S.C. SEC.  1336(C) (1964
ED). 

OUR CONCERN HERE, HOWEVER, IS WITH THE ALTERNATIVE PROCEDURE PROVIDED
IN SEC. 9, WHICH INVOLVES AN INITIAL COMPLAINT BEFORE THE COMMISSION
AND CULMINATES IN THE SEC. 16(2) SUIT TO ENFORCE THE COMMISSION'S
REPARATION AWARD.  SECTION 16(1) PROVIDES THAT IF THE COMMISSION
DETERMINES THE COMPLAINANT IS ENTITLED TO REPARATIONS IT "SHALL MAKE AN
ORDER DIRECTING THE CARRIER TO PAY TO THE COMPLAINANT THE SUM TO WHICH
HE IS ENTITLED ON OR BEFORE A DAY NAMED."  IF THE CARRIER FAILS TO
COMPLY WITH THE ORDER BY THE DESIGNATED TIME, THE SHIPPER THEN HAS THE
RIGHT UNDER SEC 16(2) TO FILE SUIT IN EITHER FEDERAL OR STATE COURT TO
ENFORCE THE COMMISSION'S REPARATION AWARD.  MOREOVER, CONGRESS HAS
PROVIDED THAT IN SUCH A SUIT THE SHIPPER IS TO HAVE CERTAIN PROCEDURAL
ADVANTAGES DESIGNED TO DISCOURAGE "HARASSING RESISTANCE BY A CARRIER TO
THE REPARATION ORDER."  ST. LOUIS & S.F.R. CO. V. SPILLER, 275 U.S.
156, 159; SEE ALSO MEEKER & CO. V. LEHIGH VALLEY R. CO., 236 U.S. 412,
433; BALDWIN V. MILLING CO., 307 U.S. 478.  THE SHIPPER HAS A BROAD
CHOICE OF VENUE.  IF THE SUIT IS BROUGHT IN A FEDERAL COURT, SEE LEWIS
SIMAS-JONES CO. V. SOUTHERN PAC. CO., 283 U.S. 654, 661, THE SHIPPER IS
FREE FROM LIABILITY FOR COSTS, EXCEPT AS THEY ACCRUE ON ITS APPEAL, AND
IT MAY INTRODUCE AT TRIAL THE FINDINGS AND ORDER OF THE COMMISSION,
WHICH "SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN STATED  ...
."  IN ADDITION, THE SHIPPER IS TO BE ALLOWED A REASONABLE ATTORNEY'S
FEE IF IT PREVAILS, AN ADVANTAGE ALSO ACCORDED UNDER SEC. 8 TO SHIPPERS
WHO ELECT TO PROCEED IN COURT IN THE FIRST INSTANCE.  (FN1) 

THE INTERSTATE COMMERCE ACT LIKEWISE CONTAINS GENERAL PROVISION FOR
JUDICIAL REVIEW OF COMMISSION ORDERS.  SECTION 17(9) PROVIDES THAT
AFTER AN APPLICATION FOR REHEARING, REARGUMENT, OR RECONSIDERATION HAS
BEEN DENIED OR OTHERWISE DISPOSED OF, A SUIT MAY BE BROUGHT TO ENFORCE,
ENJOIN, SUSPEND, OR SET ASIDE THE COMMISSION DECISION, ORDER OR
REQUIREMENT.  (FN2) 

JURISDICTION OF BOTH SEC. 16(2) AND SEC. 17(9) SUITS IS VESTED IN THE
FEDERAL DISTRICT COURTS BY 28 U.S.C. SEC. 1336(A) (1964 ED.).  VENUE IS
DETERMINED BY 28 U.S.C. SEC. 1398(A) (1964 ED.), WHICH, "EXCEPT AS
OTHERWISE PROVIDED BY LAW," LIMITS SUITS TO THE JUDICIAL DISTRICT WHERE
THE PARTY BRINGING THE ACTION HAS HIS RESIDENCE OR PRINCIPAL OFFICE. 
BUT BECAUSE OF THE QUOTED EXCEPTION, THIS VENUE RESTRICTION DOES NOT
APPLY TO SUITS COMMENCED PURSUANT TO SEC. 16(2), AS THAT SECTION
CONTAINS ITS OWN VENUE PROVISION. 

PROCEDURES FOR REVIEW OF COMMISSION ORDERS "OTHER THAN FOR THE
PAYMENT OF MONEY," SEE 28 U.S.C. SEC. 2321 (1964 ED.), ARE GOVERNED BY
28 U.S.C. SECS. 2321-2325 (1964 ED.).  SUCH ACTIONS MUST BE BROUGHT BY
OR AGAINST THE UNITED STATES, SEC. 2322; THE COMMISSION AND PARTIES IN
INTEREST APPEARING BEFORE THE COMMISSION MAY INTERVENE AS OF RIGHT,
SEC. 2323; AND NO INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING
ENFORCEMENT OF A COMMISSION ORDER MAY BE GRANTED UNLESS THE APPLICATION
IS HEARD AND DETERMINED BY A THREE-JUDGE DISTRICT COURT, SEC. 2325,
(FN3) WITH DIRECT REVIEW HERE, 28 U.S.C. SEC. 1253 (1964 ED.).  IN
UNITED STATES V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426, HOWEVER,
THIS COURT HELD THAT COMMISSION ORDERS WHICH DETERMINE IN A REPARATION
PROCEEDING THAT ASSAILED RATES ARE UNLAWFUL BUT DO NOT DIRECT THE
CARRIER TO CEASE AND DESIST CHARGING SUCH RATES, BECAUSE THE RATES HAVE
BEEN DISCONTINUED, "ARE NOT OF SUFFICIENT PUBLIC IMPORTANCE TO JUSTIFY
THE ACCELERATED JUDICIAL REVIEW PROCEDURE," 337 U.S., AT 442.  THUS,
THOUGH THE PROCEDURES SET OUT IN 28 U.S.C. SECS. 2321-2325 (1964 ED.) 
OTHERWISE GOVERN SEC. 17(9) PROCEEDINGS TO REVIEW SUCH ORDERS, SEC.
2325 IS NOT APPLICABLE AND THE MATTER MAY BE ADJUDICATED BY A SINGLE
JUDGE.  BECAUSE SEC. 16(2) ACTIONS SEEK ENFORCEMENT OF AN ORDER "FOR
THE PAYMENT OF MONEY," THE ABOVE-DESCRIBED PROCEDURES DO NOT APPLY. 
RESPECTS LIKE OTHER CIVIL SUITS FOR DAMAGES," WITH THE EXCEPTION OF THE
SPECIAL PROCEDURAL ADVANTAGES ACCORDED THE SHIPPER TO WHICH WE HAVE
PREVIOUSLY REFERRED. 

          II. 

FROM THE FOREGOING SUMMARY IT WILL BE OBSERVED THAT SEC. 16(2)
ACTIONS FOR ENFORCEMENT OF COMMISSION REPARATION AWARDS AND SEC. 17(9)
ACTIONS TO SET ASIDE COMMISSION ORDERS ARE QUITE DISTINCT PROCEEDINGS,
WITH DIFFERENT VENUE RESTRICTIONS AND DIFFERENT PROCEDURES.  MOREOVER,
CONGRESS CONFERRED CERTAIN PROCEDURAL ADVANTAGES ON SHIPPERS BRINGING
SEC. 16(2) ACTIONS THAT MAY WELL BE LOST OR IMPAIRED IF CARRIERS MAY
ATTACK THE COMMISSION'S ORDER IN A DIRECT REVIEW PROCEEDING PURSUANT TO
SEC. 17(9).  ACCORDINGLY, WE ARE ASKED TO HARMONIZE THE LANGUAGE AND
PURPOSES OF THE TWO PROVISIONS.  (FN4) 

AT THE OUTSET, HOWEVER, IT SHOULD BE EMPHASIZED THAT WE ARE HERE
CONCERNED WITH A NARROW, THOUGH IMPORTANT, CATEGORY OF CASES.  FIRST,
IT IS CONCEDED THAT IF THE COMMISSION'S REPARATION ORDER IS ACCOMPANIED
BY A CEASE-AND-DESIST ORDER, AS IT USUALLY WILL BE WHEN THE PROCEEDING
ORIGINATES BEFORE THE COMMISSION AND THE RATES OR PRACTICES UNDER
ATTACK CONTINUE IN USE, THE CARRIER MAY OBTAIN IMMEDIATE REVIEW OF THE
CEASE-AND-DESIST ORDER PURSUANT TO SEC.  17(9); AND SUCH REVIEW WILL
ORDINARILY DETERMINE THE VALIDITY OF THE FINDING OF STATUTORY VIOLATION
ON WHICH THE REPARATION ORDER IS FOUNDED.  A COMMISSION CEASE-AND
DESIST ORDER RESPECTING RATES AND CHARGES, FOR EXAMPLE, WHICH MAY BE
ISSUED PURSUANT TO THE AUTHORITY GRANTED BY SEC. 15(1) TO PRESCRIBE
JUST AND REASONABLE RATES, SUBJECTS THE CARRIER TO $5,000 PER DAY
PENALTIES FOR NON-COMPLIANCE, 49 U.S.C. SEC. 16(8) (1964 ED.), AND IS
TYPICAL OF ORDERS REVIEWED IN SUITS TO SET ASIDE COMMISSION ORDERS
SINCE THE FIRST SUCH SUIT, STICKNEY V. INTERSTATE COMMERCE COMM'N, 164
F. 638 (C.C.D. MINN.), AFF'D, 215 U.S. 98; SEE ALSO INTERSTATE COMMERCE
COMM'N V. DELAWARE, L.&W.R. CO., 220 U.S. 235; UNITED STATES V.
INTERSTATE COMMERCE COMM'N, 337 U.S. 426, 454 (FRANKFURTER, J.,
DISSENTING).  SECOND, EVEN WHEN A CEASE-AND-DESIST ORDER IS NOT JOINED
WITH THE REPARATION ORDER, THE LATTER ORDER WILL BE SUBJECT TO DIRECT
REVIEW WHEN NO OTHER MEANS OF SECURING REVIEW IS AVAILABLE, REGARDLESS
OF WHETHER REVIEW IS SOUGHT BY A SHIPPER, UNITED STATES V. INTERSTATE
COMMERCE COMM'N, 337 U.S. 426; CONSOLO V. FEDERAL MARITIME COMM'N,
POST, P. 607, OR THE CARRIER, PENNSYLVANIA R. CO. V. UNITED STATES, 363
U.S. 202.  IN THE CITED CASES THE PARTY SEEKING REVIEW COULD NOT OBTAIN
SUCH REVIEW IN A SEC. 16(2) SUIT, EITHER DIRECTLY OR THROUGH
INTERPOSITION OF A DEFENSE. 

THUS IN UNITED STATES V. INTERSTATE COMMERCE COMM'N, SUPRA, THE
GOVERNMENT FILED WITH THE COMMISSION A COMPLAINT SEEKING REPARATIONS,
BUT THE COMMISSION FOUND THE ASSAILED CHARGES DID NOT VIOLATE THE ACT
AND DISMISSED THE COMPLAINT.  AS THERE WAS NO AWARD UPON WHICH TO BASE
A SEC. 16(2) SUIT, THE UNITED STATES WOULD HAVE BEEN DENIED ALL REVIEW
HAD JURISDICTION OF THE SEC. 17(9) ACTION NOT BEEN SUSTAINED. 
SIMILARLY, IN CONSOLO V. FEDERAL MARITIME COMM'N, POST, P. 607, WE HOLD
THAT A SHIPPER MAY CHALLENGE IN A DIRECT REVIEW PROCEEDING THE ADEQUACY
OF A REPARATION AWARD, SUCH A CHALLENGE BEING ONE THAT COULD NOT BE
PRESSED IN AN ENFORCEMENT ACTION, SEE BALTIMORE & OHIO R. CO. V. BRADY,
288 U.S. 448, 457-458; D.L. PIAZZA CO. V. WEST COAST LINE, 210 F.2D 947
(C.A.2D CIR. 1954), CERT. DENIED, 348 U.S. 839. 

PENNSYLVANIA R. CO. V. UNITED STATES, SUPRA, INVOLVED A SUIT BY
CARRIER IN THE COURT OF CLAIMS TO COLLECT THE CHARGES DUE UNDER ITS
TARIFF.  THE UNITED STATES DEFENDED ON THE GROUND THAT THE RATES WERE
UNREASONABLE, AND THE COURT OF CLAIMS REFERRED THAT ISSUE TO THE
COMMISSION PURSUANT TO THE PRIMARY JURISDICTION DOCTRINE, UNITED STATES
V. WESTERN PAC. R. CO., 352 U.S. 59, 62-70.  THE COMMISSION FOUND
CERTAIN RATES UNJUST AND UNREASONABLE, WITHOUT ORDERING REPARATIONS OR
ISSUING A CEASE-AND-DESIST ORDER, AND THE CARRIER FILED A SEC. 17(9)
SUIT IN FEDERAL DISTRICT COURT TO SET THE ORDER ASIDE.  ON REVIEW OF
THE COURT OF CLAIMS' REFUSAL TO FURTHER SUSPEND ITS PROCEEDINGS PENDING
THE DISTRICT COURT ACTION, THIS COURT HELD THAT THE CARRIER WAS
ENTITLED TO JUDICIAL REVIEW OF THE COMMISSION ORDER, THAT THE COURT OF
CLAIMS HAD NO JURISDICTION TO AFFORD SUCH REVIEW, AND THAT THE COURT OF
CLAIMS SHOULD THEREFORE HAVE SUSPENDED ITS PROCEEDINGS.  BECAUSE OF THE
HOLDING THAT THE COURT OF CLAIMS COULD NOT REVIEW THE COMMISSION ORDER,
FAILURE TO SUSTAIN THE DISTRICT COURT'S JURISDICTION OF THE CARRIER'S
SEC. 17(9) ACTION WOULD AGAIN HAVE PRECLUDED JUDICIAL REVIEW.    THE
ESSENTIAL QUESTION IN THIS CASE IS THE EXTENT TO WHICH UNITED STATES V.
INTERSTATE COMMERCE COMM'N AND PENNSYLVANIA R. CO. V. UNITED STATES,
COMPEL ALLOWANCE OF RESPONDENTS' DIRECT REVIEW ACTION.  THE COMMISSION
ASKS US TO LIMIT THOSE CASES TO THEIR FACTS - SITUATIONS WHERE JUDICIAL
REVIEW WOULD NOT HAVE BEEN AVAILABLE IF THE SEC. 17(9) SUIT WAS NOT
PERMITTED.  IT ARGUES THAT SUFFICIENT OPPORTUNITY TO OBTAIN REVIEW OF
THE COMMISSION'S FINDING THAT A STATUTORY VIOLATION HAS OCCURRED IS
AFFORDED RESPONDENTS BY THEIR RIGHT TO CHALLENGE THAT DETERMINATION IN
DEFENSE OF THOMSON'S SEC. 16(2) ACTION TO ENFORCE THE REPARATION
AWARD.  IF JURISDICTION TO REVIEW IN A SEC. 17(9) SUIT SHOULD BE
SUSTAINED, THE COMMISSION FURTHER CONTENDS, SHIPPERS WILL BE DEPRIVED
OF MANY OF THE ADVANTAGES BESTOWED BY SEC. 16(2).  AND THE HISTORICAL
DEVELOPMENT OF SEC 16(2) AND THE DIRECT REVIEW PROCEEDING IS SAID TO
ESTABLISH THAT CONGRESS DID NOT CONTEMPLATE THAT THE CARRIER COULD
OBTAIN DIRECT REVIEW IN A CASE LIKE THAT AT BAR AND THEREBY SHORT
CIRCUIT THE SHIPPER'S SUIT.  FINALLY, THE COMMISSION URGES THAT IN
REPARATION CASES WHERE THE ASSAILED RATES ARE NO LONGER IN EFFECT AND
NO CEASE-AND-DESIST ORDER ISSUES THE COMMISSION'S ORDER HAS LITTLE
CONTINUING OR GENERAL SIGNIFICANCE BUT IS COMPARABLE TO AN ADJUDICATION
IN A PRIVATE DAMAGES ACTION OF INTEREST ONLY TO THE PARTIES INVOLVED;
THEREFORE, IT IS APPROPRIATE FOR THE ORDER TO BE DEFENDED BY THE
SHIPPER, WHO IS IN EFFECT COMPENSATED FOR SUCH DEFENSE BY THE
PROCEDURAL ADVANTAGES ACCORDED BY SEC. 16(2), RATHER THAN BY THE UNITED
STATES AND THE COMMISSION. 

RESPONDENTS ARGUE THAT, TO THE CONTRARY, PAST PRACTICE AND THE
DECISIONS OF THIS COURT ESTABLISH THAT THE EXCLUSIVE METHOD OF
REVIEWING COMMISSION FINDINGS THAT A STATUTORY VIOLATION HAS OCCURRED
(FN5) IS THROUGH A SEC. 17(9) PROCEEDING AND THAT SUCH A FINDING MAY
NOT BE CHALLENGED AND IS NOT OPEN TO REVIEW IN A SEC. 16(2) ACTION. 
RESPONDENTS ALSO ARGUE THAT LIMITING REVIEW TO THE SEC. 16(2)
PROCEEDING WOULD RESULT IN DISPARATE TREATMENT OF SHIPPERS, THROUGH
CONFLICTING DECISIONS IN ENFORCEMENT SUITS, AND WOULD THUS VIOLATE THE
ACT'S CARDINAL PRINCIPLE OF UNIFORMITY OF RATES. 

AS WILL APPEAR MORE FULLY BELOW, WE TAKE A MIDDLE COURSE.  WE
CONCLUDE THAT CARRIERS MAY OBTAIN FULL REVIEW BY DEFENDING THE SEC.
16(2) ACTION AND THAT THE POLICY UNDERLYING THAT SECTION PRECLUDES THE
CARRIERS FROM OBTAINING REVIEW IN A FORUM OTHER THAN THAT CHOSEN BY THE
SHIPPER.  BUT WE FIND NO OBSTACLE TO THE CARRIERS' BRINGING A SEC.
17(9) CROSS-PROCEEDING IN THE FORUM SELECTED BY THE SHIPPER, SHOULD
THEY SO DESIRE. 

                                           III. 

A THRESHOLD QUESTION IS RAISED BY RESPONDENTS' CONTENTION THAT THE
STATUTORY VIOLATION ISSUE IS NOT OPEN TO REVIEW IN A SEC. 16(2)
ENFORCEMENT ACTION, THE COMMISSION'S FINDING BEING CONCLUSIVE ON THE
ENFORCEMENT COURT UNLESS SET ASIDE IN A SEC 17(9) PROCEEDING.  IF
RESPONDENTS' ARE CORRECT ON THIS POINT, THEIR SEC. 17(9) ACTION MUST BE
ALLOWED UNDER EVEN THE COMMISSION'S INTERPRETATION OF UNITED STATES V.
INTERSTATE COMMERCE COMM'N, 337 U.S. 426, AND PENNSYLVANIA R. CO. V.
UNITED STATES, 363 U.S. 202. 

TO SUPPORT THEIR VIEW OF THE SCOPE OF REVIEW IN THE ENFORCEMENT
ACTION, RESPONDENTS REFER PRINCIPALLY TO MITCHELL COAL & COKE CO. V.
PENNSYLVANIA R. CO., 230 U.S. 247.  IN THAT CASE, A SHIPPER COMMENCED
ITS REPARATION SUIT UNDER SECS. 8 AND 9 IN A FEDERAL DISTRICT COURT. 
THIS COURT HELD THAT SINCE THE DISPUTE RAISED "ADMINISTRATIVE"
QUESTIONS CONCERNING THE REASONABLENESS OF RATES, THE PRIMARY
JURISDICTION DOCTRINE REQUIRED THE SHIPPER TO PROCEED FIRST BEFORE THE
COMMISSION.  REGARDING THE WEIGHT TO BE ACCORDED THE COMMISSION'S
RESULTING ORDER, THE COURT SAID: 

"SUCH ORDERS, SO FAR AS THEY ARE ADMINISTRATIVE ARE CONCLUSIVE,
WHETHER THEY RELATE TO PAST OR PRESENT RATES, AND CAN BE GIVEN GENERAL
AND UNIFORM OPERATION, SINCE ALL SHIPPERS, WHO HAVE BEEN OR MAY BE
AFFECTED BY THE RATE, CAN TAKE ADVANTAGE OF THE RULING AND AVAIL
THEMSELVES OF THE REPARATION ORDER.  THEY ARE QUASI-JUDICIAL AND ONLY
PRIMA FACIE CORRECT IN SO FAR AS THEY DETERMINE THE FACT AND AMOUNT OF
DAMAGE - AS TO WHICH, SINCE IT INVOLVES THE PAYMENT OF MONEY AND TAKING
OF PROPERTY, THE CARRIER IS BY SEC. 16 OF THE ACT GIVEN ITS DAY IN
COURT AND THE RIGHT TO A JUDICIAL HEARING  ...  ."  230 U.S., AT 258. 

ACCORD, MORRISDALE COAL CO. V. PENNSYLVANIA R. CO., 230 U.S. 304. 

THE PRIMA FACIE EVIDENCE PROVISION IN SEC. 16(2), HOWEVER, DRAWS NO
EXPRESS DISTINCTION BETWEEN ADMINISTRATIVE AND QUASI-JUDICIAL FINDINGS
OF THE COMMISSION, AND WE SAID OF THAT PROVISION IN MEEKER & CO. V.
LEHIGH VALLEY R. CO., 236 U.S. 412, 430, THAT "IT CUTS OFF NO DEFENSE
AND INTERPOSES NO OBSTACLE TO A FULL CONTESTATION OF ALL THE ISSUES
...  ."  SEE ALSO UNITED STATES V. INTERSTATE COMMERCE COMM'N, 337 U.S.
426, 435 (SEC. 16(2) PROCEEDINGS AFFORD "RAILROADS COMPLETE JUDICIAL
REVIEW OF ADVERSE REPARATION ORDERS").  MOREOVER, IN ONE OF THE
EARLIEST CASES UNDER THE HEPBURN ACT, THE COURT REVIEWED THE QUESTION
OF STATUTORY VIOLATION IN A SEC. 16(2) CASE, CONCLUDED THAT THE LEGAL
THEORY APPLIED BY THE COMMISSION WAS ERRONEOUS, AND SET ASIDE THE
COMMISSION'S DETERMINATION THAT THE DISPUTED RATES WERE UNREASONABLE. 
SOUTHERN R. CO. V. ST. LOUIS HAY & GRAIN CO., 214 U.S. 297.  SEE ALSO
ARIZONA GROCERY CO. V. ATCHISON, T.&S.F.R.  CO., 284 U.S. 370.  THE
SEEMINGLY CONTRADICTORY STATEMENTS IN THE CONTEMPORANEOUS MITCHELL COAL
AND MEEKER DECISIONS REQUIRE EXPLANATION, WHICH WE BELIEVE CAN BE FOUND
IN THE GENERAL COURSE OF DECISIONS IN THAT ERA RESPECTING THE SCOPE OF
REVIEW OF COMMISSION ORDERS. 

FROM OUR BRIEF RESUME OF THE COURT'S OPINION IN MITCHELL COAL IT
SHOULD BE IMMEDIATELY APPARENT THAT THE CASE DID NOT, STRICTLY
SPEAKING, REQUIRE THE DETERMINATION OF THE SCOPE OF JUDICIAL REVIEW IN
SEC. 16(2) ENFORCEMENT ACTIONS.  THE PROCEEDING UNDER REVIEW HAD BEEN
COMMENCED IN COURT PURSUANT TO SEC. 9 RATHER THAN SEC. 16 AND NO
COMMISSION ORDER HAD YET BEEN ENTERED.  THE QUESTION DIRECTLY IN ISSUE
CONCERNED THE APPLICABILITY OF THE PRIMARY JURISDICTION DOCTRINE TO
CASES INVOLVING DISCONTINUED, RATHER THAN PRESENT, RATES. 

INITIALLY FORMULATED IN CASES ARISING UNDER THE INTERSTATE COMMERCE
ACT, THE PRIMARY JURISDICTION DOCTRINE WAS PREMISED IN THE EARLY CASES
ON THE POLICY OF THE ACT OF ASSURING UNIFORM RATES.  THE COURT REASONED
THAT MANY QUESTIONS ARISING UNDER THE ACT, SUCH AS WHETHER RATES WERE
UNREASONABLE OR DISCRIMINATORY, WERE ESSENTIALLY QUESTIONS OF FACT
PARTICULARLY APPROPRIATE FOR DETERMINATION BY AN EXPERT COMMISSION.  IF
SHIPPERS COULD CHALLENGE THE FILED RATES BY PROCEEDINGS BEFORE A COURT,
WITHOUT PRIOR RESORT TO THE COMMISSION, DIFFERENT CONCLUSIONS MIGHT BE
REACHED BY DIFFERENT COURTS; AND THE PREVAILING SHIPPERS WOULD THEREBY
OBTAIN A RATE PREFERENCE AS COMPARED TO UNSUCCESSFUL SHIPPERS, WHICH
WOULD VIOLATE THE PRINCIPLE OF UNIFORM RATES.  SEE, E.G., TEXAS & PAC.
R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, 440-441; BALTIMORE &
OHIO R. CO. V. PITCAIRN COAL CO., 215 U.S. 481, 493-495; MITCHELL COAL
& COKE CO. V. PENNSYLVANIA R. CO., 230 U.S. 247, 255-260.  OF COURSE A
PRELIMINARY DETERMINATION BY THE COMMISSION WOULD HAVE LITTLE EFFECT IN
ACHIEVING UNIFORMITY IF ITS DETERMINATION WERE SUBJECT TO DE NOVO
REVIEW, AND IT WAS FOR THAT REASON THAT THE COURT POINTED OUT IN
MITCHELL COAL THE "CONCLUSIVE" EFFECT THAT WOULD BE ACCORDED
"ADMINISTRATIVE" FINDINGS OF THE COMMISSION IN ANY ENSUING SEC. 16
ACTION. 

BUT OTHER DECISIONS RENDERED BY THE COURT DURING THE SAME PERIOD
INDICATE THAT IT WAS NOT ONLY IN SEC. 16 PROCEEDINGS THAT THE
COMMISSION FINDINGS WOULD BE CONCLUSIVE, IN THE SENSE THE COURT WAS
ACTUALLY USING THAT TERM.  UNDER THE ORIGINAL ACT, FAILURE TO COMPLY
WITH ANY ORDER OF THE COMMISSION DID NOT IN ITSELF ENTAIL ANY PENALTY. 
COMMISSION ORDERS WERE JUDICIALLY ENFORCEABLE AT THE INSTANCE OF THE
COMMISSION OR ANY PARTY IN INTEREST, AND THE ACT PROVIDED THAT IN AN
ENFORCEMENT ACTION "THE FINDINGS OF FACT IN THE REPORT OF SAID
COMMISSION SHALL BE PRIMA FACIE EVIDENCE OF THE MATTERS THEREIN
STATED."  INTERSTATE COMMERCE ACT, SEC. 16, 24 STAT. 384 (1887), AS
AMENDED, 25 STAT. 860 (1889).  THOUGH RETAINING THE PRIMA FACIE
EVIDENCE PROVISION FOR ACTIONS ON REPARATION AWARDS, THE HEPBURN ACT OF
1906 INCLUDED NO PROVISION RESPECTING THE WEIGHT TO BE GIVEN COMMISSION
FINDINGS IN NONREPARATION CASES.  SECTION 15 OF THE AMENDED ACT,
HOWEVER, MADE COMMISSION ORDERS, EXCEPT ORDERS FOR THE PAYMENT OF
MONEY, SELF-ENFORCING FOR PURPOSES OF INCURRING LIABILITY FOR PENALTIES
FOR NONCOMPLIANCE, UNLESS SUCH ORDERS HAD BEEN SUSPENDED OR SET ASIDE
BY A COURT OF COMPETENT JURISDICTION.  IN INTERSTATE COMMERCE COMM'N V.
ILLINOIS CENTRAL R. CO., 215 U.S. 452, A SUIT TO SET ASIDE A CEASE-AND
DESIST ORDER, THE CHANGES EFFECTED BY THE HEPBURN ACT IN MAKING
COMMISSION ORDERS SELF-ENFORCING WERE INTERPRETED AS REDUCING THE SCOPE
OF JUDICIAL REVIEW FROM THAT PREVAILING WHEN COMMISSION ORDERS WERE
ONLY PRIMA FACIE EVIDENCE.  THE COURT STATED IT COULD CONSIDER WHETHER
THE COMMISSION ACTION EXCEEDED CONSTITUTIONAL POWER OR RIGHT, WHETHER
THE ADMINISTRATIVE ORDER WAS WITHIN THE SCOPE OF AUTHORITY DELEGATED,
AND WHETHER THE EXERCISE OF AUTHORITY WAS REASONABLE, BUT IT COULD NOT
"USURP MERELY ADMINISTRATIVE FUNCTIONS BY SETTING ASIDE A LAWFUL
ADMINISTRATIVE ORDER UPON OUR CONCEPTION AS TO WHETHER THE
ADMINISTRATIVE POWER HAS BEEN WISELY EXERCISED.  POWER TO MAKE THE
ORDER AND NOT THE MERE EXPEDIENCY OR WISDOM OF HAVING MADE IT, IS THE
QUESTION."  215 U.S., AT 470.  THROUGH FREQUENT REPETITION, SEE
INTERSTATE COMMERCE COMM'N V. UNION PAC. R. CO., 222 U.S. 541, 547-548;
PROCTER & GAMBLE CO. V. UNITED STATES, 225 U.S. 282, 297-298, THE
PRINCIPLES ELABORATED IN ILLINOIS CENTRAL GRADUALLY BECAME RESTATED AS
A DOCTRINE "THAT THE FINDINGS OF THE COMMISSION WERE MADE NOT MERELY
PRIMA FACIE BUT CONCLUSIVELY CORRECT IN CASE OF JUDICIAL REVIEW, EXCEPT
TO THE EXTENT POINTED OUT IN THE ILLINOIS CENTRAL AND OTHER CASES  ...
," UNITED STATES V. LOUISVILLE & NASHVILLE R. CO., 235 U.S. 314, 320. 
ACCORD, CENTRAL R. CO. V. UNITED STATES, 257 U.S. 247, 256-257; UNITED
STATES V. ILLINOIS CENTRAL R. CO., 263 U.S. 515, 525-526 AND N. 7.  SEE
GENERALLY, ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, 139
140.  BY A PARALLEL DEVELOPMENT, THE COURT PLACED INCREASING RELIANCE
IN PRIMARY JURISDICTION CASES ON THE "CONCLUSIVE" EFFECT OF COMMISSION
ORDERS AS A FACTOR DEMONSTRATING THAT THE REQUIREMENT OF PRELIMINARY
RESORT TO THE COMMISSION ON ADMINISTRATIVE QUESTIONS WOULD INDEED
FURTHER THE STATUTORY POLICY OF UNIFORM TREATMENT.  COMPARE BALTIMORE &
OHIO R. CO. V. PITCAIRN COAL CO., 215 U.S. 481, 494, WITH MITCHELL COAL
& COKE CO. V. PENNSYLVANIA R. CO., 230 U.S. 247, 258, QUOTED, SUPRA, P.
590. 

WHEN MITCHELL COAL AND MEEKER ARE READ TOGETHER AGAINST THE
BACKGROUND OF THE ILLINOIS CENTRAL AND LOUISVILLE & NASHVILLE CASES IT
BECOMES CLEAR THAT COMMISSION ORDERS ARE FULLY REVIEWABLE IN SEC. 16(2)
SUITS, BUT COMMISSION FINDINGS ON QUESTIONS REQUIRED UNDER THE PRIMARY
JURISDICTION DOCTRINE TO BE DETERMINED FIRST BY THE COMMISSION ARE
CONCLUSIVE IN THE SAME SENSE THAT SUCH FINDINGS WOULD BE CONCLUSIVE IN
SUITS TO SET ASIDE THE COMMISSION'S ORDER.  THAT IS, FINDINGS ON
PRIMARY JURISDICTION ISSUES ARE TO BE REVIEWED BY THE COURT ON THE
ADMINISTRATIVE RECORD UNDER THE FAMILIAR STANDARDS ELABORATED IN DIRECT
REVIEW PROCEEDINGS, WHILE FINDINGS ON OTHER QUESTIONS ARE SUBJECT TO
REVIEW UNDER THE PRIMA FACIE EVIDENCE PROVISION OF SEC. 16(2), WITH THE
STATUTORY RIGHTS OF INTRODUCING EVIDENCE NOT BEFORE THE COMMISSION AND
OBTAINING A JURY DETERMINATION OF DISPUTED ISSUES OF FACT.  (FN6)  SUCH
AN INTERPRETATION OF SEC. 16(2)'S PRIMA FACIE EVIDENCE PROVISION IS
REQUIRED IF THAT PROVISION IS TO BE CONSONANT WITH THE PRIMARY
JURISDICTION DOCTRINE.  THAT INTERPRETATION SEEMS TO HAVE BEEN APPLIED
BY THE COURT IN PENNSYLVANIA R. CO. V. WEBER, 257 U.S. 85, 90-91;
LOUISVILLE & NASHVILLE R. CO. V. SLOSS-SHEFFIELD CO., 269 U.S. 217;
NEWS SYNDICATE CO. V. NEW YORK CENTRAL R. CO., 275 U.S. 179; ADAMS V.
MILLS, 286 U.S. 397, 409-410.  (FN7)  IT IS URGED IN THE PRESENT CASE
BY THE COMMISSION AND IN A COMPANION CASE BY THE FEDERAL MARITIME
COMMISSION, WAS ACCEPTED BY THE COURT BELOW, 334 F.2D, AT 49, N. 12,
AND HAS BEEN APPLIED BY SEVERAL OTHER LOWER FEDERAL COURTS, NEW PROCESS
GEAR CORP. V. NEW YORK CENTRAL R. CO., 250 F.2D 569, 571-572 (C.A.2D
CIR. 1957), CERT. DENIED, 356 U.S. 959; MIDLAND VALLEY R. CO. V.
EXCELSIOR COAL CO., 86 F.2D 177, 181-182 (C.A. 8TH CIR. 1936);
BALTIMORE & O.R. CO. V. BRADY, 61 F.2D 242, 246, 248 (C.A. 4TH CIR.
1932), REV'D ON OTHER GROUNDS, 288 U.S. 448; CITY OF DANVILLE V.
CHESAPEAKE & O.R. CO., 34 F. SUPP. 620, 625, 627-628 (D.C.W.D. VA.
1940); HILLSDALE COAL & COKE CO. V. PENNSYLVANIA R. CO., 237 F. 272,
275 (D.C.E.D. PA. 1916).  WE ADHERE TO THAT INTERPRETATION NOW. 

                                            IV. 

HAVING ESTABLISHED THAT THE CARRIER HAS AMPLE OPPORTUNITY TO SECURE
REVIEW IN THE ENFORCEMENT ACTION, WE MUST NOW CONSIDER WHETHER
AFFORDING THE CARRIER THE ALTERNATIVE OF BRINGING DIRECT REVIEW
PROCEEDINGS PURSUANT TO SEC. 17(9) WOULD VITIATE THE CONGRESSIONAL
POLICY EXPRESSED IN SEC. 16(2) OF ENCOURAGING PROMPT PAYMENT OF
REPARATION AWARDS.  TO EFFECTUATE THAT POLICY, CONGRESS HAS PROVIDED
FOR THE SHIPPER CERTAIN PROCEDURAL AND SUBSTANTIVE BENEFITS PERTAINING
TO VENUE, FREEDOM FROM COSTS, PRIMA FACIE EFFECT OF THE COMMISSION'S
ORDER, AND ALLOWANCE OF A REASONABLE ATTORNEY'S FEE.  THE COMMISSION
CONTENDS THAT PERMITTING THE CARRIER TO BRING DIRECT REVIEW PROCEEDINGS
WILL MATERIALLY IMPAIR THE BENEFITS DERIVED BY THE SHIPPER FROM THE
PROCEDURAL DISPENSATIONS OF SEC. 16(2).  WE CONCLUDE THAT ALTHOUGH THE
DEGREE OF IMPAIRMENT WOULD BE LESS THAN THAT CLAIMED BY THE COMMISSION,
IT WOULD NEVERTHELESS BE SUBSTANTIAL. 

THE COMMISSION ARGUMENT RESPECTING VENUE, WHICH WE ACCEPT, PROCEEDS
AS FOLLOWS:  BECAUSE THE CARRIER MAY BRING ITS SEC. 17(9) ACTION AS
SOON AS THE FINAL COMMISSION ORDER IS ENTERED BUT THE SHIPPER'S SEC.
16(2) SUIT MUST AWAIT PASSAGE OF THE DATE SET FOR COMPLIANCE, THE
CARRIER MAY FILE ITS SUIT FIRST AND THUS OBTAIN PRIORITY.  ALTHOUGH THE
CARRIER'S SUIT MUST BE BROUGHT AGAINST THE UNITED STATES, 28 U.S.C.
SEC. 2322 (1964 ED.), THE COMMISSION AND THE SHIPPER MAY INTERVENE AS
OF RIGHT, 28 U.S.C. SEC 2323 (1964 ED.), AND THE SHIPPER WILL BE UNDER
COMPULSION TO DO SO TO PROTECT ITS INTEREST SINCE A DECISION SETTING
ASIDE THE COMMISSION'S ORDER WOULD DESTROY THE FOUNDATION OF THE
ENFORCEMENT ACTION.  IN THIS WAY, THE SHIPPER WILL FREQUENTLY BE DENIED
HIS CHOICE OF FORUM ON THE STATUTORY VIOLATION ISSUE AS THE SEC. 17(9)
SUIT MUST BE BROUGHT IN THE JUDICIAL DISTRICT OF THE RESIDENCE OR
PRINCIPAL OFFICE OF THE PARTY BRINGING THE SUIT, 28 U.S.C. SEC.
1398(A), WHICH MAY BE FAR REMOVED FROM THE DISTRICT IN WHICH THE
SHIPPER RESIDES OR THROUGH WHICH THE ROAD OF THE CARRIER RUNS -
ALTERNATIVES THAT ARE OPEN TO THE SHIPPER UNDER SEC. 16(2) AND, BEING
LIKELY TO OFFER A MORE CONVENIENT VENUE TO THE SHIPPER, WOULD
FREQUENTLY BE THE SHIPPER'S CHOICE. 

BY A SIMILAR ANALYSIS THE COMMISSION ALSO CONTENDS THAT A SHIPPER
FORCED TO INTERVENE IN THE CARRIER'S SEC. 17(9) ACTION WOULD LOSE THE
ADVANTAGES OF FREEDOM FROM COSTS AND THE RIGHT TO A REASONABLE
ATTORNEY'S FEE, SINCE THOSE RIGHTS ARE CONFERRED ONLY IN THE SEC. 16(2)
ACTION AND NOT IN SEC. 17(9) ACTIONS.  BUT SINCE BOTH THE SEC. 16(2)
ACTION AND THE SEC. 17(9) ACTION MAY BE HEARD AND DETERMINED BY A
SINGLE DISTRICT JUDGE WHEN THE REPARATION ORDER IS NOT ACCOMPANIED BY A
CEASE-AND-DESIST ORDER, UNITED STATES V. INTERSTATE COMMERCE COMM'N,
337 U.S. 426, 440-443; PENNSYLVANIA R. CO. V. UNITED STATES, 363 U.S.
202, IT WOULD BE POSSIBLE, APART FROM VENUE PROBLEMS, (FN8) FOR THE
SHIPPER TO PRESS ITS ACTION IN THE SAME DISTRICT AS THE CARRIER'S
ACTION, EITHER BY AN INDEPENDENT ACTION TO BE CONSOLIDATED WITH THE
CARRIER'S ACTION, FED. RULE CIV. PROC. 42(A), OR BY A COUNTERCLAIM
AFTER INTERVENTION IN THE CARRIER'S ACTION, SEE SWITZER BROS., INC. V.
LOCKLIN, 207 F.2D 483 (C.A. 7TH CIR. 1953); 3 MOORE, FEDERAL PRACTICE
PARA. 13.05 (2D ED. 1964), 4 MOORE, FEDERAL PRACTICE PARA. 24.17 (2D
ED. 1963).  THEN TO THE EXTENT THAT THE SHIPPER'S COSTS AND ATTORNEY'S
FEES WERE ATTRIBUTABLE TO ITS SEC. 16(2) COUNTERCLAIM OR ACTION THE
SEC. 16(2) ADVANTAGES WOULD CLEARLY BE APPLICABLE.  AND IT WOULD BE
ARGUABLE - AN ISSUE WE DO NOT DECIDE - THAT THE SHIPPER WOULD BE
ENTITLED TO THE BENEFIT OF SEC. 16(2) AS TO ALL ITS COSTS AND
ATTORNEY'S FEES IN THE COMBINED ACTION. 

SINCE THE COMMISSION BELIEVES THAT THE SCOPE OF REVIEW OF FINDINGS ON
PRIMARY JURISDICTION ISSUES WOULD BE THE SAME REGARDLESS OF WHETHER
REVIEW WAS SOUGHT IN A SEC. 16(2) OR A SEC. 17(9) ACTION, IT MAKES NO
CLAIM THAT ALLOWANCE OF THE DIRECT REVIEW PROCEEDING WOULD UNDERCUT THE
PRIMA FACIE EVIDENCE PROVISION OF SEC. 16(2). 

IN SUMMARY, THE PRINCIPAL, IF NOT SOLE, EFFECT OF PERMITTING
RESPONDENTS' DIRECT REVIEW PROCEEDING WOULD BE TO FORCE ON SHIPPERS THE
ALTERNATIVES OF EITHER FORGOING THE OPPORTUNITY TO DEFEND THE
COMMISSION ORDER OR ACCEPTING THE CARRIER'S CHOICE OF A DISTANT VENUE. 
THE FIRST ALTERNATIVE IS OBVIOUSLY COUNTER TO THE POLICY EXPRESSED IN
SEC. 16(2), AND, AS WE HAVE SAID, IT IS TO BE EXPECTED THAT SHIPPERS
WOULD ELECT TO DEFEND THE COMMISSION'S ORDER EVEN AT THE EXPENSE OF
LOSS OF THEIR VENUE ADVANTAGE.  THE IMPORTANCE OF CHOICE OF VENUE IN
THESE ACTIONS SHOULD NOT BE DISCOUNTED.  SINCE THE RECORD IN THE
ENFORCEMENT ACTION IS NOT LIMITED TO THAT MADE BEFORE THE COMMISSION,
THE SHIPPER MAY DESIRE TO CALL WITNESSES OR TO INTRODUCE DOCUMENTARY
EVIDENCE EITHER IN DIRECT SUPPORT OF THE COMMISSION'S ORDER OR IN
REBUTTAL TO OPPOSING EVIDENCE PRODUCED BY THE CARRIER, THUS BRINGING
INTO PLAY THOSE FACTORS RELATING TO THE CONVENIENCE OF WITNESSES AND
THE RELATIVE BURDEN OF MAKING PROOF THAT MAKE THE CHOICE OF VENUE SO
IMPORTANT IN OTHER CONTEXTS.  SEE MERCANTILE NATIONAL BANK V. LANGDEAU,
371 U.S. 555; SCHNELL V. PETER ECKRICH & SONS, INC., 365 U.S. 260. 

   V. 

BUT RESPONDENTS CONTEND THAT CONFINING REVIEW TO THE ENFORCEMENT
ACTION WOULD INTRODUCE INTO THE ADMINISTRATION OF THE ACT PROBLEMS OF
GREATER SEVERITY AND IMPORTANCE THAN ANY EFFECT SUCH A COURSE MIGHT
HAVE IN SAFEGUARDING THE SHIPPER'S SEC. 16(2) PRIVILEGES.  RESPONDENTS
NOTE THAT UNDER THE DOCTRINE OF PHILLIPS CO. V. GRAND TRUNK WESTERN R.
CO., 236 U.S. 662, SHIPPERS WHO ARE NOT COMPLAINANTS BEFORE THE
COMMISSION MAY NEVERTHELESS OBTAIN THE ADVANTAGE OF THE COMMISSION'S
REPARATION ORDER AS A BASIS FOR THEIR OWN SEC. 16(2) ACTION.  IT IS
ARGUED THAT THE ENFORCEMENT COURT HAS NO POWER TO SET ASIDE THE
COMMISSION ORDER AND, THEREFORE, A DECISION UPHOLDING A CARRIER'S
ATTACK ON THE COMMISSION'S ORDER IN ONE ENFORCEMENT PROCEEDING WOULD
NOT PRECLUDE ANOTHER SHIPPER FROM SUCCESSFULLY INVOKING THAT ORDER IN A
SEPARATE ENFORCEMENT PROCEEDING, THUS RESULTING IN DISPARATE TREATMENT
OF SHIPPERS CONTRARY TO THE ACT'S OBJECTIVE OF SECURING UNIFORM RATES. 

IT IS OF COURSE TRUE THAT THE COURT MAY NOT FORMALLY SET ASIDE THE
COMMISSION'S ORDER IN AN ACTION IN WHICH NEITHER THE COMMISSION NOR THE
UNITED STATES IS A PARTY.  CF. UNITED STATES V. JONES,  336 U.S. 641,
651-653, 670-671; PENNSYLVANIA R. CO. V. UNITED STATES, 363 U.S. 202,
205.  BUT WE DO NOT READ PHILLIPS CO. V. GRAND TRUNK WESTERN R. CO.,
SUPRA, TO PERMIT RELIANCE BY A NONPARTICIPATING SHIPPER ON THE
COMMISSION'S ORDER WHEN IT HAS BEEN DISAPPROVED IN LITIGATION BETWEEN
THE COMPLAINANT SHIPPER AND THE RAILROAD.  IN THE PHILLIPS CASE, THE
COMMISSION HAD SEPARATELY DETERMINED THAT CHALLENGED RATES WERE
UNLAWFUL AND HAD ISSUED A CEASE-AND-DESIST ORDER, WHICH WAS SUSTAINED
IN AN ENFORCEMENT PROCEEDING BROUGHT BY THE COMMISSION.  ILLINOIS
CENTRAL R. CO. V. INTERSTATE COMMERCE COMM'N, 206 U.S. 441. 
THEREAFTER, SOME REPARATION CLAIMS WERE SETTLED, AND PHILLIPS, WHICH
HAD NOT BEEN A COMPLAINANT BEFORE THE COMMISSION, COMMENCED ITS
REPARATION ACTION.  THE COURT REASONED THAT IF PHILLIPS COULD NOT RELY
ON THE COMMISSION ORDER, SHIPPERS PREVAILING BEFORE THE COMMISSION
WOULD OBTAIN A PREFERENCE AS COMPARED TO NONPARTICIPATING SHIPPERS. 
THEREFORE, THE COURT RULED THAT IF: 

"THERE WAS A FINDING OF UNREASONABLENESS IN THE PROCEEDINGS BEGUN BY
OTHERS, (THE NONPARTICIPATING SHIPPER) COULD, IF IN TIME, PRESENT HIS
CLAIM, AND AWAIT THE RESULT OF THE LITIGATION OVER THE VALIDITY OF ANY
ORDER MADE AT THE INSTANCE OF THOSE PARTIES.  IF IT WAS ULTIMATELY
SUSTAINED BY THE COURT AS VALID HE WOULD THEN BE IN POSITION TO OBTAIN
REPARATION FROM THE COMMISSION - OR A JUDGMENT FROM A COURT OF
COMPETENT JURISDICTION, ON A CLAIM THAT HAD BEEN SEASONABLY
PRESENTED."  236 U.S., AT 666. 

THE PHILLIPS CASE THUS CONTEMPLATES THAT THE SUIT OF A
NONPARTICIPATING SHIPPER IS TO AWAIT THE OUTCOME OF LITIGATION OVER THE
VALIDITY OF THE COMMISSION ORDER AND THAT THE NONPARTICIPATING SHIPPER
MAY RELY ON THE COMMISSION'S ORDER ONLY WHEN THE POLICY OF UNIFORMITY
WILL THEREBY BE SERVED. 

IT MIGHT STILL BE ARGUED THAT DISPARITY IN TREATMENT OF SHIPPERS
WOULD RESULT IN CASES INVOLVING MULTIPLE COMPLAINANTS BEFORE THE
COMMISSION.  THE SEVERAL SHIPPERS COULD COMMENCE SEPARATE ENFORCEMENT
ACTIONS IN DIFFERENT COURTS, AND THOSE COURTS MIGHT DISAGREE CONCERNING
THE VALIDITY OF THE COMMISSION'S ORDER.  BUT SUCH CONFLICTS COULD BE
COMPLETELY AVOIDED ONLY BY LIMITING REVIEW ON THE QUESTION OF STATUTORY
VIOLATION TO A SINGLE SUIT BY A CARRIER TO SET ASIDE THE COMMISSION'S
ORDER, AND THE LONG AND UNVARYING COURSE OF DECISIONS PERMITTING REVIEW
IN THE ENFORCEMENT COURT PRECLUDES OUR LIMITING REVIEW TO SEC. 17(9)
PROCEEDINGS.  SOUTHER R. CO. V. ST. LOUIS HAY & GRAIN CO., 214 U.S.
297; ARIZONA GROCERY CO. V. ATCHISON, T.&S.F.R. CO., 284 U.S. 370;
ADAMS V. MILLS, 286 U.S. 397; BROWN LUMBER CO. V. LOUISVILLE & N.R.
CO., 299 U.S. 393; PORTER CO. V. CENTRAL VERMONT R. CO., 366 U.S. 272,
274, N. 6 (DICTUM).  IN ANY EVENT, WE DO NOT BELIEVE THAT IN PRACTICE
SUCH CONFLICTS WILL FREQUENTLY OCCUR.  IF THE FIRST ENFORCEMENT COURT
TO ISSUE ITS DECISION SUSTAINS THE COMMISSION ORDER, THAT DECISION WILL
GENERALLY BE ACCEPTED AS PERSUASIVE AUTHORITY BY OTHER COURTS.  SUCH
CONFLICTS AS DO OCCUR WILL BE SIMILAR TO THOSE THAT MAY ARISE WHEN, IN
A SUIT COMMENCED IN COURT UNDER SEC. 9, THE PRIMARY JURISDICTION
DOCTRINE IS NOT APPLICABLE AND THE COURT IS FREE TO DECIDE QUESTIONS
UNDER THE ACT AS AN ORIGINAL MATTER; AND SUCH CONFLICTS MAY ULTIMATELY
BE RESOLVED HERE.  IF THE FIRST COURT TO REACH A DECISION STRIKES DOWN
THE COMMISSION ORDER, IT MAY DO SO ON GROUNDS PERMITTING
RECONSIDERATION OF THE MATTER BY THE COMMISSION.  WHEN THE PRIMARY
JURISDICTION DOCTRINE REQUIRES INITIAL DECISION BY THE COMMISSION, IT
ALSO PRECLUDES THE COURT FROM REDETERMINING THE QUESTION ITSELF SHOULD
THE COMMISSION DECISION BE DEFECTIVE.  THE PROPER COURSE IS TO REMAND
TO THE COMMISSION, SOUTHERN R. CO. V. ST. LOUIS HAY & GRAIN CO., 214
U.S. 297, 302; LOUISVILLE & NASHVILLE R. CO. V. BEHLMER, 175 U.S. 648;
COMPARE UNITED STATES V. JONES, 336 U.S. 641, 651-653, 670-671, WITH
UNITED STATES V. BIANCHI & CO., 373 U.S. 709, 718, WHICH HAS CONTINUING
POWER TO SUSPEND OR TO MODIFY ITS ORDERS, INTERSTATE COMMERCE ACT SEC.
16(6), 49 U.S.C. SEC. 16(6) (1964 ED.).  THE CARRIER WILL NATURALLY
REQUEST THE COMMISSION TO REOPEN THE PRIOR ORDER AS TO ALL SHIPPERS. 
SEE BALDWIN V. MILLING CO., 307 U.S. 478; BUT CF. GULF, M.&N.R.  CO. V.
MERCHANTS' SPECIALTY CO., 50 F.2D 21 (C.A. 5TH CIR. 1931).  IN SOME
CASES, HOWEVER, A DECISION REFUSING TO ENFORCE THE COMMISSION'S ORDER
WILL FINALLY DETERMINE ITS VALIDITY AS BETWEEN THE PARTIES TO THAT
ACTION WITHOUT ANY NECESSITY FOR A REMAND TO THE COMMISSION.  HERE TOO
THE FIRST ADJUDICATION WILL GENERALLY BE PERSUASIVE AND, IF NOT,
CONFLICTING DECISIONS MAY BE REVIEWED IN THIS COURT.  FINALLY, UNDER
THE INTERPRETATION OF SECS. 16(2) AND 17(9) THAT WE ELABORATE BELOW THE
CARRIER MAY BRING A DIRECT REVIEW PROCEEDING AS A CROSS-ACTION IN THE
FORUM SELECTED BY A SHIPPER, THUS ENSURING THAT THE COURT WILL HAVE
POWER TO AFFECT THE ORDER ITSELF AND THEREBY MAINTAIN UNIFORMITY AS
BETWEEN SHIPPERS. 

                                  VI. 

RECENT DECISIONS OF THIS COURT HAVE RECOGNIZED THAT COMMISSION ORDERS
DETERMINING A "RIGHT OR OBLIGATION" SO THAT "LEGAL CONSEQUENCES" WILL
FLOW THEREFROM ARE JUDICIALLY REVIEWABLE.  PENNSYLVANIA R. CO. V.
UNITED STATES, 363 U.S. 202, 205; ROCHESTER TELEPHONE CORP. V. UNITED
STATES, 307 U.S. 125, 131, 132, 143.  SUCH REVIEW "IS EQUALLY AVAILABLE
WHETHER A COMMISSION ORDER RELATES TO PAST OR FUTURE RATES, OR WHETHER
ITS PROCEEDING FOLLOWS REFERRAL BY A COURT OR ORIGINATES WITH THE
COMMISSION."  PENNSYLVANIA R. CO. V. UNITED STATES, SUPRA, AT 205. 
UNDER THESE ESTABLISHED PRINCIPLES THE ORDER ATTACKED IN THIS CASE IS
UNQUESTIONABLY SUBJECT TO REVIEW, AND IN PENNSYLVANIA R. CO. V. UNITED
STATES, SUPRA, AND UNITED STATES V. INTERSTATE COMMERCE COMM'N, 337
U.S. 426, SIMILAR ORDERS WERE HELD REVIEWABLE IN DIRECT PROCEEDINGS. 

THE QUESTION BEFORE US NOW, HOWEVER, IS NOT WHETHER REVIEW IS TO BE
AFFORDED BUT WHERE THAT REVIEW IS TO OCCUR.  IN THE THREE PRECEDING
MUST SERVE AS GUIDEPOSTS FOR OUR DECISION OF THAT QUESTION.  FIRST,
RESPONDENTS HAVE AMPLE OPPORTUNITY TO SECURE REVIEW OF THE COMMISSION'S
ORDER THROUGH DEFENSE OF THE SHIPPER'S ENFORCEMENT ACTION.  BY
CONTRAST, THE PENNSYLVANIA R. CO. AND INTERSTATE COMMERCE COMM'N CASES
DEALT WITH SITUATIONS WHERE THE ORDER IN DISPUTE COULD ONLY BE REVIEWED
IN SEC. 17(9) PROCEEDINGS, AND THOSE CASES THUS DO NOT CONTROL DECISION
HERE.  SECOND, ALLOWING RESPONDENTS THE ALTERNATIVE OF BRINGING DIRECT
REVIEW PROCEEDINGS WOULD SUBSTANTIALLY IMPAIR THE SHIPPER'S SEC. 16(2)
RIGHT TO SELECT A CONVENIENT VENUE.  THIRD, CONTRARY TO RESPONDENTS'
CONTENTION, LIMITING REVIEW TO THE ENFORCEMENT ACTION WOULD NOT BE
LIKELY TO RESULT IN DISPARITY IN TREATMENT OF SHIPPERS.  IF, THEREFORE,
REVIEW CAN BE LIMITED TO THE ENFORCEMENT FORUM SELECTED BY THE SHIPPER
CONSISTENT WITH THE LANGUAGE AND HISTORY OF THE PROVISIONS ESTABLISHING
THE DIRECT REVIEW PROCEEDING, WE SHOULD ADOPT THAT COURSE. 

DURING THE FIRST 19 YEARS OF THE COMMISSION'S EXISTENCE ITS ORDERS
WERE NOT REVIEWABLE THROUGH DIRECT PROCEEDINGS.  UNTIL 1906,
NONCOMPLIANCE WITH A COMMISSION ORDER DID NOT EXPOSE A CARRIER TO
IMMEDIATE SANCTIONS; AN ORDER WAS ENFORCEABLE ONLY AFTER JUDICIAL
PROCEEDINGS IN WHICH THE CARRIER COULD CHALLENGE ITS VALIDITY.  THE
HEPBURN ACT IMPOSED PENALTIES OF $5,000 A DAY FOR VIOLATION OF
COMMISSION ORDERS AND "THE STATUTORY JURISDICTION TO ENJOIN AND SET
ASIDE AN ORDER WAS GRANTED IN 1906, BECAUSE THEN, FOR THE FIRST TIME,
THE RATE-MAKING POWER WAS CONFERRED UPON THE COMMISSION, AND THEN
DISOBEDIENCE OF ITS ORDERS WAS FIRST MADE PUNISHABLE," UNITED STATES V.
LOS ANGELES R. CO., 273 U.S. 299, 309; SEE ALSO 40 CONG. REC. 5133
(REMARKS OF SENATOR FORAKER).  THUS THE GENESIS OF THE DIRECT REVIEW
PROCEEDING WAS THE DESIRE TO AFFORD AN INJUNCTIVE REMEDY FOR PERSONS
FACED WITH THE THREAT OF IRREPARABLE INJURY THROUGH EXPOSURE TO
LIABILITY FOR MOUNTING PENALTIES WITHOUT ANY OTHER OPPORTUNITY FOR
JUDICIAL REVIEW UNTIL THE COMMISSION OR SOME INTERESTED PARTY SHOULD
CHOOSE TO COMMENCE ENFORCEMENT PROCEEDINGS.  COMPARE EX PARTE YOUNG,
209 U.S. 123, 147-148.  THE ESSENTIALLY EQUITABLE NATURE OF THE DIRECT
REVIEW PROCEEDING WAS REMARKED IN EARLY CASES DENYING REVIEW OF
"NEGATIVE ORDERS" THAT DID NOT COMMAND ANY ACTION BY THE CARRIER AND
THEREFORE DID NOT THREATEN THE CARRIER WITH ANY SANCTIONS.  COMPARE
UNITED STATES V. LOS ANGELES R. CO., 273 U.S. 299, WITH ROCHESTER TEL.
CORP. V. UNITED STATES, 307 U.S. 125.  SIMILARLY, AS THE PER DIEM
PENALTIES DO NOT APPLY TO NON-COMPLIANCE WITH ORDERS FOR THE PAYMENT OF
MONEY, TWO OF THE THREE COURTS TO HAVE CONSIDERED THE ISSUE PRESENTED
IN THE CASE AT BAR DENIED CARRIERS DIRECT REVIEW ON THE GROUND THAT NO
EQUITABLE CAUSE OF ACTION HAD BEEN STATED.  PITTSBURGH & W.V.R. CO. V.
UNITED STATES, 6 F.2D 646, 648-649 (D.C.W.D. PA. 1924); BALTIMORE &
O.R. CO. V. UNITED STATES, 12 F. SUPP. 261, 263 (D.C.D. DEL.  1935),
APPEAL DISMISSED, 87 F.2D 605 (C.A. 3D CIR. 1937); CONTRA, SOUTHERN R.
CO. V. UNITED STATES, 193 F. 664 (COMMERCE CT. 1911).  AND DECISIONS
SUSTAINING DIRECT REVIEW OF REPARATION ORDERS HAVE STRESSED THE ABSENCE
OF ALTERNATIVE MEANS FOR OBTAINING REVIEW - IN EQUITY TERMS, INADEQUACY
OF REMEDIES AT LAW.  SEE, SUPRA, AT PP. 587-588. 

AS THE PRINCIPLES STATED AT THE BEGINNING OF THIS SECTION
DEMONSTRATE, THE TEST OF REVIEWABILITY IS NO LONGER PREGNANT WITH THE
CONCEPT OF IRREPARABLE INJURY TO THE SAME EXTENT AS WHEN THE NEGATIVE
ORDER DOCTRINE HELD SWAY, AND WE DO NOT MEAN TO RESURRECT THE STRICT
EQUITY APPROACH.  THIS HISTORY NEVERTHELESS ESTABLISHES THAT THE MAIN
CONCERN OF CONGRESS IN CREATING THE DIRECT REVIEW PROCEEDING WAS WITH
ORDERS THAT WERE "SELF-ENFORCING" IN THE SENSE OF EXPOSING RECALCITRANT
CARRIERS TO SUBSTANTIAL MONETARY PENALTIES.  THE LEGISLATIVE HISTORY
PERMITS ABSOLUTELY NO INFERENCE THAT CONGRESS INTENDED TO UNDERCUT THE
SHIPPER'S REMEDIES IN THE ENFORCEMENT ACTION.  TO THE CONTRARY, THE
HEPBURN ACT SIMPLIFIED THOSE ENFORCEMENT PROCEDURES SO AS TO PROVIDE
ADDITIONAL ASSISTANCE TO SHIPPERS.  H.R. REP. NO. 591, 59TH CONG., 1ST
SESS., P. 5; 40 CONG. REC. 2256 (REMARKS OF CONGRESSMAN HEPBURN). 
MOREOVER, THE EQUITABLE NATURE OF THE DIRECT REVIEW PROCEEDINGS
CERTAINLY AFFORDS AMPLE BASIS FOR REQUIRING THE DIRECT REVIEW COURT TO
DEFER ITS PROCEEDINGS PENDING THE OUTCOME OF THE ENFORCEMENT ACTION, A
COURSE THAT IS CONSISTENT WITH THE LEGISLATIVE HISTORY OF THE DIRECT
REVIEW PROCEEDING AND THAT WILL MAXIMIZE THE REMEDIAL PURPOSES OF SEC.
16(2). 

LEST THERE BE ANY MISUNDERSTANDING, WE EMPHASIZE THAT OUR REASONS FOR
FINDING THE DIRECT REVIEW PROCEEDING UNAVAILABLE IN A CASE SUCH AS THIS
WHERE THE CARRIERS BEGAN THAT PROCEEDING IN A FORUM OTHER THAN THAT
SELECTED BY THE SHIPPER FOR ITS ENFORCEMENT ACTION ARE INAPPLICABLE
WHEN THE DIRECT REVIEW PROCEEDING IS BROUGHT AS A CROSS-ACTION IN THE
ENFORCEMENT COURT.  (FN9)  OBVIOUSLY ALLOWANCE OF THE CROSS-ACTION WILL
NOT IMPAIR THE SHIPPER'S VENUE RIGHT.  AND WE THINK THAT THE SEC. 16(2)
PROVISIONS RESPECTING COURT COSTS AND ATTORNEY'S FEES UNQUESTIONABLY
WOULD BE APPLICABLE TO THE WHOLE OF THE COMBINED ACTION IN SUCH A
CASE.  THE COMMISSION ARGUES, NEVERTHELESS, THAT REPARATION ORDERS
RESPECTING PAST RATES ARE NOT OF SUFFICIENT GENERAL IMPORTANCE TO
REQUIRE THEIR DEFENSE BY THE UNITED STATES AND THE COMMISSION, AND THAT
THE DIRECT REVIEW PROCEEDING SHOULD NOT BE PERMITTED REGARDLESS OF THE
COURT IN WHICH IT IS BROUGHT.  THAT APPARENTLY IS NOT THE VIEW OF
CONGRESS, HOWEVER, FOR WHEN IT PROVIDED IN 1964 THAT REVIEW OF
COMMISSION ORDERS ENTERED ON REFERENCE OF PRIMARY JURISDICTION ISSUES
SHOULD BE HAD ONLY IN THE COURT MAKING THE REFERENCE, 28 U.S.C. SECS.
1336(B) AND 1398(B) (1964 ED.), IT DID SO BY PLACING JURISDICTION AND
VENUE OF THE DIRECT REVIEW PROCEEDING IN THAT COURT, SEE GENERALLY S.
REP. NO. 1394, 88TH CONG., 2D SESS. (1964), IN 1964-2 U.S.C. CONG. AND
ADMIN. NEWS 3235, RATHER THAN BY PROVIDING FOR REVIEW AS AN INCIDENT OF
THE ORIGINAL ACTION.  SEE ALSO BRIEF FOR THE UNITED STATES IN
PENNSYLVANIA R. CO. V. UNITED STATES (NO. 451 O.T. 1959), 7-9, 21-22. 
AS WE INDICATED IN THE PRECEDING SECTION, IN SOME CASES THERE WILL BE
SOME ADVANTAGE FOR PURPOSES OF ASSURING THE UNIFORM APPLICATION OF THE
ACT IN THE COURTS HAVING JURISDICTION TO DIRECTLY AFFECT THE
COMMISSION'S ORDER, AND WE SEE NO JUSTIFIABLE REASON FOR PREVENTING THE
CARRIER FROM BRINGING THE UNITED STATES INTO THE ENFORCEMENT COURT
SHOULD IT SO DESIRE. 

THE PROCEEDING BEFORE US, HOWEVER, WAS NOT BROUGHT IN THE ENFORCEMENT
COURT.  INDEED, PROCEEDINGS IN THE LATTER COURT HAVE BEEN DEFERRED
PENDING THE OUTCOME OF THIS CASE.  FOR THE REASONS STATED HEREIN, THE
DISTRICT COURT ERRED IN ENTERTAINING RESPONDENTS' ACTION AND THE
JUDGMENT OF THE COURT OF APPEALS SUSTAINING THE DISTRICT COURT MUST BE
REVERSED. 

FN1  THE RELEVANT TEXT OF THE PROVISIONS DISCUSSED IN TEXT ABOVE
READS AS FOLLOWS: 

"SEC. 8.  LIABILITY IN DAMAGES TO PERSONS INJURED BY VIOLATION OF
LAW. 

"IN CASE ANY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS CHAPTER
SHALL DO, CAUSE TO BE DONE, OR PERMIT TO BE DONE ANY ACT, MATTER, OR
THING IN THIS CHAPTER PROHIBITED OR DECLARED TO BE UNLAWFUL, OR SHALL
OMIT TO DO ANY ACT, MATTER, OR THING IN THIS CHAPTER PROHIBITED OR
DECLARED TO BE UNLAWFUL, OR SHALL OMIT TO DO ANY ACT, MATTER, OR THING
IN THIS CHAPTER REQUIRED TO BE DONE, SUCH COMMON CARRIER SHALL BE
LIABLE TO THE PERSON OR PERSONS INJURED THEREBY FOR THE FULL AMOUNT OF
DAMAGES SUSTAINED IN CONSEQUENCE OF ANY SUCH VIOLATION OF THE
PROVISIONS OF THIS CHAPTER, TOGETHER WITH A REASONABLE COUNSEL OR
ATTORNEY'S FEE TO BE FIXED BY THE COURT IN EVERY CASE OF RECOVERY,
WHICH ATTORNEY'S FEE SHALL BE TAXED AND COLLECTED AS PART OF THE COSTS
IN THE CASE. 

"SEC. 9.  REMEDIES OF PERSONS DAMAGED; ELECTION; WITNESSES. 

"ANY PERSON OR PERSONS CLAIMING TO BE DAMAGED BY ANY COMMON CARRIER
SUBJECT TO THE PROVISIONS OF THIS CHAPTER MAY EITHER MAKE COMPLAINT TO
THE COMMISSION AS HEREINAFTER PROVIDED FOR, OR MAY BRING SUIT IN HIS OR
THEIR OWN BEHALF FOR THE RECOVERY OF THE DAMAGES FOR WHICH SUCH COMMON
CARRIER MAY BE LIABLE UNDER THE PROVISIONS OF THIS CHAPTER IN ANY
DISTRICT COURT OF THE UNITED STATES OF COMPETENT JURISDICTION; BUT SUCH
PERSON OR PERSONS SHALL NOT HAVE THE RIGHT TO PURSUE BOTH OF SAID
REMEDIES, AND MUST IN EACH CASE ELECT WHICH ONE OF THE TWO METHODS OF
PROCEDURE HEREIN PROVIDED FOR HE OR THEY WILL ADOPT  ...  . 

     *         *     *         *         * 

"SEC. 13.  COMPLAINTS TO AND INVESTIGATIONS BY COMMISSION. 

"(1)  COMPLAINT TO COMMISSION OF VIOLATION OF LAW BY CARRIER;
REPARATION; INVESTIGATION. 

"ANY PERSON, FIRM, CORPORATION, COMPANY, OR ASSOCIATION, OR ANY
MERCANTILE, AGRICULTURAL, OR MANUFACTURING SOCIETY OR OTHER
ORGANIZATION, OR ANY BODY POLITIC OR MUNICIPAL ORGANIZATION, OR ANY
COMMON CARRIER COMPLAINING OF ANYTHING DONE OR OMITTED TO BE DONE BY
ANY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS CHAPTER IN
CONTRAVENTION OF THE PROVISIONS THEREOF, MAY APPLY TO SAID COMMISSION
BY PETITION, WHICH SHALL BRIEFLY STATE THE FACTS; WHEREUPON A STATEMENT
OF THE COMPLAINT THUS MADE SHALL BE FORWARDED BY THE COMMISSION TO SUCH
COMMON CARRIER, WHO SHALL BE CALLED UPON TO SATISFY THE COMPLAINT, OR
TO ANSWER THE SAME IN WRITING, WITHIN A REASONABLE TIME, TO BE
SPECIFIED BY THE COMMISSION.  IF SUCH COMMON CARRIER WITHIN THE TIME
SPECIFIED SHALL MAKE REPARATION FOR THE INJURY ALLEGED TO HAVE BEEN
DONE, THE COMMON CARRIER SHALL BE RELIEVED OF LIABILITY TO THE
COMPLAINANT ONLY FOR THE PARTICULAR VIOLATION OF LAW THUS COMPLAINED
OF.  IF SUCH CARRIER OR CARRIERS SHALL NOT SATISFY THE COMPLAINT WITHIN
THE TIME SPECIFIED, OR THERE SHALL APPEAR TO BE ANY REASONABLE GROUND
FOR INVESTIGATING SAID COMPLAINT, IT SHALL BE THE DUTY OF THE
COMMISSION TO INVESTIGATE THE MATTERS COMPLAINED OF IN SUCH MANNER AND
BY SUCH MEANS AS IT SHALL DEEM PROPER. 

*         *         *         *         * 

"SEC. 16.  ORDERS OF COMMISSION AND ENFORCEMENT THEREOF. 

"(1)  AWARD OF DAMAGES. 

"IF, AFTER HEARING ON A COMPLAINT MADE AS PROVIDED IN SECTION 13 OF
THIS TITLE, THE COMMISSION SHALL DETERMINE THAT ANY PARTY COMPLAINANT
IS ENTITLED TO AN AWARD OF DAMAGES UNDER THE PROVISIONS OF THIS CHAPTER
FOR A VIOLATION THEREOF, THE COMMISSION SHALL MAKE AN ORDER DIRECTING
THE CARRIER TO PAY TO THE COMPLAINANT THE SUM TO WHICH HE IS ENTITLED
ON OR BEFORE A DAY NAMED. 

"(2)  PROCEEDINGS IN COURTS TO ENFORCE ORDERS; COSTS; ATTORNEY'S
FEE. 

"IF A CARRIER DOES NOT COMPLY WITH AN ORDER FOR THE PAYMENT OF MONEY
WITHIN THE TIME LIMIT IN SUCH ORDER, THE COMPLAINANT, OR ANY PERSON FOR
WHOSE BENEFIT SUCH ORDER WAS MADE, MAY FILE IN THE DISTRICT COURT OF
THE UNITED STATES FOR THE DISTRICT IN WHICH HE RESIDES OR IN WHICH IS
LOCATED THE PRINCIPAL OPERATING OFFICE OF THE CARRIER, OR THROUGH WHICH
THE ROAD OF THE CARRIER RUNS, OR IN ANY STATE COURT OF GENERAL
JURISDICTION HAVING JURISDICTION OF THE PARTIES, A COMPLAINT SETTING
FORTH BRIEFLY THE CAUSES FOR WHICH HE CLAIMS DAMAGES, AND THE ORDER OF
THE COMMISSION IN THE PREMISES.  SUCH SUIT IN THE DISTRICT COURT OF THE
UNITED STATES SHALL PROCEED IN ALL RESPECTS LIKE OTHER CIVIL SUITS FOR
DAMAGES, EXCEPT THAT ON THE TRIAL OF SUCH SUIT THE FINDINGS AND ORDER
OF THE COMMISSION SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN
STATED, AND EXCEPT THAT THE PLAINTIFF SHALL NOT BE LIABLE FOR COSTS IN
THE DISTRICT COURT NOR FOR COSTS AT ANY SUBSEQUENT STATE OF THE
PROCEEDINGS UNLESS THEY ACCRUE UPON HIS APPEAL.  IF THE PLAINTIFF SHALL
FINALLY PREVAIL HE SHALL BE ALLOWED A REASONABLE ATTORNEY'S FEE, TO BE
TAXED AND COLLECTED AS A PART OF THE COSTS OF THE SUIT."  INTERSTATE
COMMERCE ACT SECS. 8, 9, 13(1) AND 16(1) AND (2), 49 U.S.C. SECS. 8, 9,
13(1) AND 16(1) (1964 ED.). 

FN2  "SEC.  17(9) JUDICIAL RELIEF FROM DECISIONS, ETC., UPON DENIAL
OR OTHER DISPOSITION OF APPLICATION FOR REHEARING, ETC. 

"WHEN AN APPLICATION FOR REHEARING, REARGUMENT, OR RECONSIDERATION OF
ANY DECISION, ORDER, OR REQUIREMENT OF A DIVISION, AN INDIVIDUAL
COMMISSIONER, OR A BOARD WITH RESPECT TO ANY MATTER ASSIGNED OR
REFERRED TO HIM OR IT SHALL HAVE BEEN MADE AND SHALL HAVE BEEN DENIED,
OR AFTER REHEARING, REARGUMENT, OR RECONSIDERATION OTHERWISE DISPOSED
OF, BY THE COMMISSION OR AN APPELLATE DIVISION, A SUIT TO ENFORCE,
ENJOIN, SUSPEND, OR SET ASIDE SUCH DECISION, ORDER, OR REQUIREMENT, IN
WHOLE OR IN PART, MAY BE BROUGHT IN A COURT OF THE UNITED STATES UNDER
THOSE PROVISIONS OF LAW APPLICABLE IN THE CASE OF SUITS TO ENFORCE,
ENJOIN, SUSPEND, OR SET ASIDE ORDERS OF THE COMMISSION, BUT NOT
OTHERWISE."  INTERSTATE COMMERCE ACT SEC. 17(9), 49 U.S.C. SEC. 17(9)
(1964 ED.). 

THIS PROVISION WAS NOT ADDED UNTIL 1940, TRANSPORTATION ACT OF 1940,
54 STAT. 916, AND IS BASICALLY A PROVISION REQUIRING EXHAUSTION OF
ADMINISTRATIVE REMEDIES PRIOR TO RESORT TO THE COURTS.   THE FIRST
PROVISION FOR DIRECT JUDICIAL REVIEW OF COMMISSION ORDERS APPEARED IN
SEC. 5 OF THE HEPBURN ACT OF 1906, 34 STAT. 590, 592, WHICH WAS PHRASED
IN TERMS OF VENUE ONLY.  FOR EASE OF REFERENCE, WE WILL REFER TO DIRECT
REVIEW PROCEEDINGS AS SEC. 17(9) PROCEEDINGS. 

FN3  THE ABOVE-DESCRIBED PROVISIONS OF THE JUDICIAL CODE READ IN
PERTINENT PART: 

"SEC. 1336.  INTERSTATE COMMERCE COMMISSION'S ORDERS. 

"(A)  EXCEPT AS OTHERWISE PROVIDED BY ACT OF CONGRESS, THE DISTRICT
COURTS SHALL HAVE JURISDICTION OF ANY CIVIL ACTION TO ENFORCE, ENJOIN,
SET ASIDE, ANNUL OR SUSPEND, IN WHOLE OR IN ANY PART, ANY ORDER OF THE
INTERSTATE COMMERCE COMMISSION. 

     *         *     *         *         * 

"SEC. 1398.  INTERSTATE COMMERCE COMMISSION'S ORDERS. 

"(A)  EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY CIVIL ACTION TO
ENFORCE, SUSPEND OR SET ASIDE IN WHOLE OR IN PART AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION SHALL BE BROUGHT ONLY IN THE JUDICIAL
DISTRICT WHEREIN IS THE RESIDENCE OR PRINCIPAL OFFICE OF ANY OF THE
PARTIES BRINGING SUCH ACTION. 

     *         *         *         *         * 

"SEC. 2321.  PROCEDURE GENERALLY; PROCESS. 

"THE PROCEDURE IN THE DISTRICT COURTS IN ACTIONS TO ENFORCE, SUSPEND,
ENJOIN, ANNUL OR SET ASIDE IN WHOLE OR IN PART ANY ORDER OF THE
INTERSTATE COMMERCE COMMISSION OTHER THAN FOR THE PAYMENT OF MONEY OR
THE COLLECTION OF FINES, PENALTIES AND FORFEITURES, SHALL BE AS
PROVIDED IN THIS CHAPTER ...  . 

"SEC. 2322.  UNITED STATES AS PARTY. 

"ALL ACTIONS SPECIFIED IN SECTION 2321 OF THIS TITLE SHALL BE BROUGHT
BY OR AGAINST THE UNITED STATES. 

"SEC. 2323.  DUTIES OF ATTORNEY GENERAL; INTERVENORS. 

"THE ATTORNEY GENERAL SHALL REPRESENT THE GOVERNMENT IN THE ACTIONS
SPECIFIED IN SECTION 2321 OF THIS TITLE  ...  IN THE DISTRICT COURTS,
AND IN THE SUPREME COURT OF THE UNITED STATES UPON APPEAL FROM THE
DISTRICT COURTS. 

"THE INTERSTATE COMMERCE COMMISSION AND ANY PARTY OR PARTIES IN
INTEREST TO THE PROCEEDING BEFORE THE COMMISSION, IN WHICH AN ORDER OR
REQUIREMENT IS MADE, MAY APPEAR AS PARTIES OF THEIR OWN MOTION AND AS
OF RIGHT, AND BE REPRESENTED BY THEIR COUNSEL, IN ANY ACTION INVOLVING
THE VALIDITY OF SUCH ORDER OR REQUIREMENT OR ANY PART THEREOF, AND THE
INTEREST OF SUCH PARTY  ...  . 

     *         *         *      *         * 

"SEC. 2325.  INJUNCTIONS; THREE-JUDGE COURT REQUIRED. 

"AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE
ENFORCEMENT, OPERATION OR EXECUTION, IN WHOLE OR IN PART, OF ANY ORDER
OF THE INTERSTATE COMMERCE COMMISSION SHALL NOT BE GRANTED UNLESS THE
APPLICATION THEREFOR IS HEARD AND DETERMINED BY A DISTRICT COURT OF
THREE JUDGES UNDER SECTION 2284 OF THIS TITLE."  28 U.S.C. SECS.
1336(A), 1398(A), 2321-2323, 2325 (1964 ED.).    FN4  AS IS READILY
APPARENT FROM THIS OPINION, THE STATUTORY PROVISIONS GOVERNING THIS
CASE AND THE COMPANION CASE, CONSOLO, POST, ARE AN HISTORICAL PATCHWORK
SUBJECT TO MORE THAN ONE INTERPRETATION.  THE ENTIRE MATTER IS SURELY
RIPE FOR CONGRESSIONAL CONSIDERATION, FOR IT IS OF CONTINUING
SIGNIFICANCE AND THE COMPETING CONSIDERATIONS OF YESTERDAY MAY NOT BE
THOSE OF OVERRIDING IMPORTANCE TODAY. 

FN5  FREQUENT COMMISSION PRACTICE, ILLUSTRATED BY THE PROCEDURE
ADOPTED IN THE PRESENT CASE, IS TO SEPARATE FROM THE ISSUE OF SHIPPER'S
DAMAGES ISSUES RESPECTING THE EXISTENCE OF A STATUTORY VIOLATION AND
THE AVAILABILITY OF STATUTORY DEFENSES SUCH AS THE STATUTE OF
LIMITATIONS DEFENSE ASSERTED BY RESPONDENTS AND TO TRY THE LATTER
ISSUES FIRST.  THE CORE OF THE DISPUTE HERE CONCERNS THE FORUM FOR
REVIEW OF COMMISSION FINDINGS ON SUCH ISSUES OF VIOLATION AND
LIMITATIONS. 

FN6  SECTION 16(2), OF COURSE, DOES NOT LIMIT THE CARRIER TO
INTRODUCING OPPOSING EVIDENCE TO REBUT THE PRIMA FACIE EFFECT OF THE
COMMISSION'S ORDER.  IT MAY ALSO CHALLENGE THE ADMISSIBILITY OF THE
ORDER ON THE GROUNDS, FOR EXAMPLE, THAT THE COMMISSION DID NOT AFFORD
THE CARRIER A FAIR HEARING OR THAT THE ORDER WAS NOT BASED UPON
SUBSTANTIAL EVIDENCE, SPILLER V. ATCHISON, T.&S.F.R. CO., 253 U.S. 117,
126.  BUT IF A COMMISSION ORDER CONTAINING FINDINGS ON ALL MATTERS
ESSENTIAL TO THE SHIPPER'S RECOVERY IS ADMITTED AND THE CARRIER
PRODUCED NO OPPOSING EVIDENCE, THE FINDINGS AND ORDER OF THE COMMISSION
MAY NOT BE REJECTED BY THE JURY AND THE SHIPPER IS ENTITLED TO
JUDGMENT.  MEEKER V. LEHIGH VALLEY R. CO., 236 U.S. 434, 439; SEE
PENNSYLVANIA R. CO. V. JACOBY & CO., 242 U.S. 89, 94 (DICTUM). 

FN7  IN LOUISVILLE & NASHVILLE R. CO. V. SLOSS-SHEFFIELD CO., 269
U.S. 217, THE COURT CONSIDERED A CARRIER'S STATUTE OF LIMITATIONS
DEFENSE ON REVIEW OF A JUDGMENT FOR THE SHIPPER IN A SEC. 16(2)
ENFORCEMENT ACTION.  ACCORD, MEEKER & CO. V. LEHIGH VALLEY R. CO., 236
U.S. 412.  THUS, IT WOULD SEEM BEYOND QUESTION THAT RESPONDENTS HERE
COULD HAVE PRESENTED IN THOMSON'S NEW YORK ACTION THE DEFENSE ON WHICH
THEY PREVAILED IN THE COURTS BELOW. 

FN8  VENUE OF SUITS TO SET ASIDE THE COMMISSION'S ORDER IS LIMITED BY
28 U.S.C. SEC. 1398 (1964 ED.)  TO THE DISTRICT IN WHICH THE PARTY
BRINGING THE ACTION HAS ITS RESIDENCE OR PRINCIPAL OFFICE.  SECTION
16(2) PROVIDES FOR VENUE IN THE DISTRICT WHERE THE SHIPPER RESIDES "OR
IN WHICH IS LOCATED THE PRINCIPAL OPERATING OFFICE OF THE CARRIER, OR
THROUGH WHICH THE ROAD OF THE CARRIER RUNS  ... ."  AS SEC. 16(2) DOES
NOT EXPRESSLY PROVIDE FOR VENUE IN THE DISTRICT IN WHICH THE CARRIER
RESIDES AND THAT DISTRICT MAY NOT COINCIDE WITH ONE OF THE DISTRICTS
THAT ARE LISTED, IT WOULD APPEAR THAT IN SOME CASES IN WHICH THE
CARRIER ELECTS TO FILE ITS SEC. 17(9) ACTION IN THE DISTRICT OF ITS
RESIDENCE, RATHER THAN THE DISTRICT OF ITS PRINCIPAL OFFICE, THE
DISTRICT CHOSEN BY THE CARRIER WILL NOT BE ONE WHERE THE SHIPPER COULD
ORIGINALLY HAVE BROUGHT SUIT.  IT WAS PRIMARILY SIMILAR VENUE PROBLEMS
THAT PROMPTED ENACTMENT IN 1964 OF 28 U.S.C. SEC 1336(B), WHICH
PROVIDES THAT EXCLUSIVE JURISDICTION OF A SEC. 17(9) ACTION TO SET
ASIDE A COMMISSION ORDER ARISING OUT OF A PRIMARY JURISDICTION
REFERENCE TO THE COMMISSION SHALL BE VESTED IN THE REFERRING COURT. 
1964-2 U.S.C. CONG. AND ADMIN. NEWS 3235-3239.  WHEN THE SEC. 17(9)
ACTION IS FILED FIRST, HOWEVER, VENUE DIFFICULTIES ARE LESS LIKELY TO
OCCUR AS THE SEC. 16(2) VENUE PROVISIONS ARE IN GENERAL BROADER THAN
THOSE APPLICABLE TO SEC. 17(9) ACTIONS.  IN ANY EVENT, VENUE OBJECTIONS
MAY PERHAPS BE OVERCOME BY TRANSFER OF THE SEC. 17(9) ACTION, 28 U.S.C.
SEC. 1404 (1964 ED.), OR BY APPLICATION OF THE DOCTRINE OF WAIVER, SEE
3 MOORE, FEDERAL PRACTICE PARA. 13.16, AT P. 45 (2D ED. 1964) (VENUE OF
COUNTERCLAIMS BY INTERVENERS). 

FN9  "EXCEPT AS OTHERWISE PROVIDED BY LAW," 28 U.S.C. SEC. 1398(A)
(1964 ED.), QUOTED, SUPRA, N. 3, LIMITS VENUE OF DIRECT REVIEW
PROCEEDINGS TO THE JUDICIAL DISTRICT OF THE RESIDENCE OR PRINCIPAL
PLACE OF BUSINESS OF THE PARTY BRINGING THE ACTION.  SINCE WE INTERPRET
SEC. 16(2) AS PRECLUDING A CARRIER FROM BRINGING AN ENFORCEMENT ACTION
IN ANY COURT BUT THE ENFORCEMENT COURT, THAT SECTION PROVIDES VENUE FOR
THE CARRIER'S CROSS-ACTION UNDER THE "EXCEPT AS OTHERWISE PROVIDED BY
LAW" PROVISION OF SEC. 1398(A).  IN THE RARE CASES WHEN THE ENFORCEMENT
ACTION IS BROUGHT IN STATE, RATHER THAN FEDERAL, COURT IT WILL OF
COURSE NOT BE POSSIBLE FOR THE CARRIER TO BRING A SEC. 17(9) CROSS
ACTION. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















CONSOLO V. FEDERAL MARITIME COMM'N 383 U.S. 607 


NO. 63.  ARGUED DECEMBER 6-7, 1965 - DECIDED MARCH 22, 1966 - 119 U.S.
APP. D.C. 345, 342 F.2D 924, REVERSED. 


RESPONDENT FLOTA, A COMMON CARRIER BY WATER, MADE AN EXCLUSIVE
CONTRACT WITH PANAMA ECUADOR TO TRANSPORT BANANAS.  THE CONTRACT WAS
EXECUTED AFTER A FEDERAL MARITIME BOARD RULING, LATER REITERATED, THAT
FLOTA'S COMPETITOR HAD VIOLATED THE SHIPPING ACT, 1916 BY ITS EXCLUSIVE
CONTRACTS AND REFUSAL TO ALLOCATE BANANA SHIPPING SPACE AMONG ALL
QUALIFIED SHIPPERS.  PETITIONER, A COMPETITOR OF PANAMA ECUADOR,
DEMANDED A REASONABLE AMOUNT OF FLOTA'S BANANA CARRYING SPACE UNDER THE
BOARD'S DECISIONS AND THREATENED LITIGATION IF REJECTED.  FLOTA
REJECTED THE DEMAND AND BROUGHT A PROCEEDING BEFORE THE BOARD FOR
DECLARATORY RELIEF EXONERATING IT FROM LIABILITY TO PETITIONER. 
PETITIONER THEN FILED A COMPLAINT WITH THE BOARD ASKING FOR DAMAGES. 
THE ACTIONS WERE CONSOLIDATED AND THE BOARD RULED THAT FLOTA'S
EXCLUSIVE CONTRACT VIOLATED THE SHIPPING ACT AND ORDERED A FAIR
ALLOCATION OF BANANA SHIPPING SPACE.  FLOTA, PURSUANT TO THE
ADMINISTRATIVE ORDERS REVIEW ACT, PETITIONED THE COURT OF APPEALS TO
SET ASIDE THE ORDER, AND THE APPEAL WAS STAYED PENDING DETERMINATION OF
THE REPARATION PROCEEDING.  FOLLOWING THE BOARDS REPARATION ORDER,
FLOTA AND PETITIONER EACH APPEALED, FLOTA ASKING THAT THE AWARD AND
FINDING OF A SHIPPING ACT VIOLATION BE SET ASIDE, PETITIONER THAT THE
AWARD BE INCREASED.  AFTER HOLDING THAT IT HAD JURISDICTION OVER THE
APPEALS, THE COURT OF APPEALS AFFIRMED THE BOARD'S FINDING OF A
SHIPPING ACT VIOLATION BUT REMANDED THE CASE FOR THE BOARD TO CONSIDER
WHETHER IT WAS INEQUITABLE TO MAKE FLOTA PAY REPARATIONS.  THE FEDERAL
MARITIME COMMISSION (FMC) HELD THAT IT WAS NOT INEQUITABLE BUT REDUCED
THE AWARD.  FOLLOWING RENEWED APPEALS, THE COURT OF APPEALS REVERSED
AND VACATED THE AWARD AS INEQUITABLE AND AN ABUSE OF DISCRETION, IN
EFFECT ON THE GROUND THAT THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT A
CONCLUSION CONTRARY TO THAT REACHED BY THE FMC.  HELD: 

1.  THE COURT OF APPEALS HAD JURISDICTION TO CONSIDER PETITIONER,
SHIPPER'S, DIRECT APPEAL CHALLENGING THE ADEQUACY OF THE FMC REPARATION
ORDER.  SECTION 2 OF THE ADMINISTRATIVE ORDERS REVIEW ACT IN
CONJUNCTION WITH SECTION 31 OF THE SHIPPING ACT, 1916 PROVIDES A
PROCEDURE FOR DIRECT REVIEW OF FMC ORDERS SIMILAR TO THAT APPLICABLE TO
ICC ORDERS.  SUCH ORDERS ARE REVIEWABLE ON DIRECT APPEAL BY A SHIPPER
DENIED REPARATIONS IN WHOLE OR IN PART, SINCE THE ADEQUACY OF A
REPARATION AWARD CANNOT BE CHALLENGED IN AN ENFORCEMENT PROCEEDING,
UNITED STATES V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426.  PP. 612
614. 

2.  SINCE THE JURISDICTION OF THE COURT OF APPEALS HAD BEEN INVOKED
BY THE SHIPPER SEEKING TO INCREASE THE AMOUNT OF HIS DAMAGES, THAT
COURT ALSO HAD JURISDICTION OVER THE CARRIER'S DIRECT REVIEW APPEAL AS
TO THE VALIDITY OF THE FMC ORDER AND THE AMOUNT OF REPARATIONS, WHETHER
CONSIDERED AS A CONSOLIDATED APPEAL OR AS AN INTERVENOR'S CROSS-CLAIM. 
ICC V. ATLANTIC COAST LINE R. CO., ANTE, P. 576.  PP. 614-618. 

3.  THE FMC'S FINDING THAT IT WOULD NOT BE INEQUITABLE TO REQUIRE
FLOTA TO PAY PETITIONER REPARATIONS WAS SUPPORTED BY SUBSTANTIAL
EVIDENCE AND MUST BE SUSTAINED ON REVIEW.  PP. 618-626. 

(A)  A REVIEWING COURT IS NOT AT LIBERTY TO WEIGH THE EVIDENCE AND
SUBSTITUTE ITS DISCRETION FOR THAT OF THE ADMINISTRATIVE AGENCY.  PP.
619-621. 

(B)  IN DETERMINING WHETHER TO EXERCISE ITS DISCRETION TO AWARD
REPARATIONS TO A COMPLAINANT UNDER THE SHIPPING ACT, THE FMC MAY BE
GUIDED BY SUCH FACTORS AS WHETHER AN AWARD WOULD FURTHER THE ACT'S
ENFORCEMENT, INJURY TO THE SHIPPER, THE CARRIER'S CULPABILITY, AND
WHETHER THE AWARD WOULD CONFORM TO PREVIOUS APPLICATION OF THE ACT.  P.
622. 

(C)  THE FINDINGS THAT FLOTA HAD UNJUSTLY DISCRIMINATED AGAINST
PETITIONER AND GIVEN UNDUE PREFERENCE TO HIS COMPETITOR IN VIOLATION OF
THE SHIPPING ACT UNDERCUT FLOTA'S EQUITIES.  PP. 622-623. 

CONSOLO V. FEDERAL MARITIME COMMISSION ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

WE HAVE BEEN ASKED, IN THIS CASE, TO DETERMINE WHETHER THE COURT OF
APPEALS HAD JURISDICTION TO SET ASIDE A REPARATION ORDER OF THE FEDERAL
MARITIME COMMISSION WHICH WAS BEFORE IT UPON THE CONSOLIDATED APPEALS
OF THE SHIPPER AND THE CARRIER, THE SHIPPER ASKING THAT THE AWARD BE
INCREASED AND THE CARRIER ASKING THAT IT BE SET ASIDE.  IN ADDITION, WE
HAVE BEEN ASKED TO DETERMINE WHETHER THE COURT OF APPEALS APPLIED THE
PROPER STANDARD OF REVIEW WHEN IT SET ASIDE THE REPARATION AWARD.  WE
ANSWER THE FIRST QUESTION IN THE AFFIRMATIVE AND THE SECOND IN THE
NEGATIVE.  ACCORDINGLY, WE REVERSE. 

FLOTA MERCANTE GRANCOLOMBIANA, S.A. (FLOTA) IS A COMMON CARRIER
ENGAGED IN CARRYING BANANAS FROM SOUTH AMERICA TO THE UNITED STATES. 
IN JULY 1955, IT ENTERED INTO AN EXCLUSIVE TWO-YEAR CARRYING CONTRACT
WITH PANAMA ECUADOR, A BANANA SHIPPER, AND GAVE PANAMA ECUADOR AN
OPTION TO RENEW THE CONTRACT FOR AN ADDITIONAL THREE YEARS, SUBJECT TO
ITS MEETING THE RATE OFFERED BY ANY OTHER SHIPPER.  THIS EXCLUSIVE
CONTRACT WAS EXECUTED AFTER THE FEDERAL MARITIME BOARD, IN JUNE 1953,
HAD RULED THAT FLOTA'S COMPETITOR, GRACE LINE, WAS A COMMON CARRIER OF
BANANAS AND HAD VIOLATED THE SHIPPING ACT, 1916, SECS 14 FOURTH (FN1)
AND 16 FIRST, (FN2) BY REFUSING TO ALLOCATE ITS BANANA SHIPPING SPACE
EQUITABLY AMONG ALL QUALIFIED SHIPPERS.  (FN3)  IN APRIL 1957, THE
BOARD REITERATED ITS VIEW THAT GRACE LINE HAD VIOLATED THE SHIPPING ACT
BY SIGNING EXCLUSIVE CARRYING CONTRACTS AND IT ORDERED GRACE LINE TO
OFFER TO ALL QUALIFIED SHIPPERS, UPON A FAIR BASIS, SHIPPING SPACE ON
FORWARD-BOOKING CONTRACTS NOT TO EXCEED TWO YEARS IN LENGTH.  (FN4)
ONE MONTH AFTER THIS RULING FLOTA REJECTED A BID BY CONSOLO, A BANANA
SHIPPER COMPETING WITH PANAMA ECUADOR, FOR THE ENTIRE SHIPPING SPACE
AND HONORED THE OPTION GIVEN PANAMA ECUADOR BY EXECUTING TO IT A THREE
YEAR EXCLUSIVE CARRYING CONTRACT.  SHORTLY THEREAFTER CONSOLO DEMANDED
A "FAIR AND REASONABLE" AMOUNT OF THE CARRYING SPACE PURSUANT TO THE
PREVIOUS GRACE LINE DECISIONS OF THE BOARD AND THREATENED TO FILE A
COMPLAINT IF ITS DEMAND WERE REJECTED.  FLOTA REJECTED THE DEMAND AND
ITSELF FILED A PETITION BEFORE THE BOARD FOR DECLARATORY RELIEF
EXONERATING IT FROM LIABILITY TO CONSOLO.  CONSOLO FOLLOWED WITH A
COMPLAINT BEFORE THE BOARD ASKING FOR DAMAGES.  THESE PROCEEDINGS WERE
CONSOLIDATED AND, IN JUNE 1959, THE BOARD RULED THAT FLOTA'S THREE-YEAR
EXCLUSIVE CONTRACT WITH PANAMA ECUADOR VIOLATED THE SHIPPING ACT, SECS
14 FOURTH AND 16 FIRST, AND IT ORDERED FLOTA TO ALLOCATE ITS SPACE
FAIRLY AMONG ALL QUALIFIED BANANA SHIPPERS.  (FN5)  PURSUANT TO SEC
2(C) OF THE ADMINISTRATIVE ORDERS REVIEW ACT (64 STAT. 1129, AS
AMENDED, 5 U.S.C. SEC 1032(C) (1964 ED.)), FLOTA PETITIONED THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT TO SET ASIDE THIS
ORDER.  THIS APPEAL WAS STAYED, PENDING DETERMINATION OF THE
REPARATIONS PROCEEDING.  IN MARCH 1961, THE BOARD ORDERED FLOTA TO PAY
CONSOLO CERTAIN REPARATIONS FOR THE VIOLATION OF THE SHIPPING ACT. 
(FN6)  BOTH FLOTA AND CONSOLO APPEALED FROM THIS REPARATION ORDER AND
EACH INTERVENED IN THE APPEAL OF THE OTHER, CONSOLO ASKING THAT THE
REPARATION AWARD BE INCREASED AND FLOTA ASKING THAT IT BE SET ASIDE. 
THESE APPEALS WERE CONSOLIDATED TOGETHER WITH FLOTA'S APPEAL TO SET
ASIDE THE BOARD'S FINDING OF A VIOLATION OF THE SHIPPING ACT. 

THE COURT OF APPEALS HELD THAT IT HAD JURISDICTION TO CONSIDER THESE
APPEALS.  IT AFFIRMED THE BOARD'S FINDING THAT FLOTA HAD VIOLATED THE
SHIPPING ACT BUT REMANDED TO THE BOARD THE ISSUE OF REPARATIONS SO THAT
IT COULD "CONSIDER WHETHER, UNDER ALL THE CIRCUMSTANCES, IT IS
INEQUITABLE TO FORCE FLOTA TO PAY REPARATIONS  ...  ."  (FN7)  ON
REMAND THE FEDERAL MARITIME COMMISSION (FN8) CONCLUDED THAT IT WAS NOT
INEQUITABLE TO REQUIRE FLOTA TO PAY CONSOLO REPARATIONS, ALTHOUGH IT
DID REDUCE THE AMOUNT OF THE AWARD.  (FN9)  AGAIN, BOTH FLOTA AND
CONSOLO APPEALED TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT, EACH INTERVENED IN THE APPEAL OF THE OTHER, AND THE TWO
APPEALS WERE CONSOLIDATED.  (FN10)  AGAIN CONSOLO MAINTAINED THAT THE
AWARD WAS TOO SMALL AND FLOTA ARGUED THAT IT SHOULD BE SET ASIDE IN
PART OR IN WHOLE.  THE COURT OF APPEALS REVERSED AND VACATED THE
REPARATION AWARD, CONCLUDING THAT "IN VIEW OF THE SUBSTANTIAL EVIDENCE
SHOWING THAT IT WOULD BE INEQUITABLE TO ASSESS DAMAGES AGAINST FLOTA IN
FAVOR OF CONSOLO,  ...  THE COMMISSION ABUSED THE DISCRETION GRANTED IT
UNDER SECTION 22 OF THE SHIPPING ACT (FN11) TO ISSUE REPARATION AWARDS
...  ."  119 U.S. APP. D.C. 345, 352, 342 F.2D 924, 931.  CONSOLO
PETITIONED THIS COURT FOR A WRIT OF CERTIORARI TO REVIEW THAT DECISION,
WHICH WE GRANTED.  381 U.S. 933. 

                  I 

THE FIRST QUESTION WE HAVE IS WHETHER THE COURT OF APPEALS HAD
JURISDICTION OF THE APPEALS FILED BY CONSOLO AND FLOTA.  (FN12) 

AS WE READ THE CONTROLLING STATUTORY PROVISIONS, IT SEEMS CLEAR THAT
THE COURT OF APPEALS HAD JURISDICTION TO CONSIDER CONSOLO'S DIRECT
APPEAL FROM THE COMMISSION'S REPARATION ORDER GRANTING ONLY PART OF THE
RELIEF REQUESTED.  SECTION 2 OF THE ADMINISTRATIVE ORDERS REVIEW ACT (5
U.S.C. SEC 1032 (1964 ED.))  GIVES THE COURTS OF APPEALS "EXCLUSIVE
JURISDICTION TO ENJOIN, SET ASIDE, SUSPEND (IN WHOLE OR IN PART), OR TO
DETERMINE THE VALIDITY OF  ...  (C) SUCH FINAL ORDERS OF THE  ...
FEDERAL MARITIME BOARD  ...  AS ARE NOW SUBJECT TO JUDICIAL REVIEW
PURSUANT TO THE PROVISIONS OF SECTION 830 OF TITLE 46  ...  ."  SECTION
830 OF TITLE 46 (SEC 31 OF THE SHIPPING ACT, 1916, 39 STAT. 738, AS
AMENDED), IN TURN, SAYS THAT, "EXCEPT AS OTHERWISE PROVIDED," ORDERS OF
THE FEDERAL MARITIME BOARD ARE REVIEWABLE PURSUANT TO THE SAME
PROCEDURES AS ARE AVAILABLE "IN SIMILAR SUITS IN REGARD TO ORDERS OF
THE INTERSTATE COMMERCE COMMISSION  ...  ."  ACCORDINGLY, IF PURSUANT
TO PROVISIONS IN THE INTERSTATE COMMERCE ACT A SHIPPER CAN BRING A
DIRECT REVIEW PROCEEDING TO CHALLENGE THE ADEQUACY OF A REPARATION
AWARD ISSUED BY THE INTERSTATE COMMERCE COMMISSION, HE SHOULD BE
PERMITTED TO BRING A SIMILAR PROCEEDING TO CHALLENGE THE ADEQUACY OF A
REPARATION AWARD FROM THE FEDERAL MARITIME COMMISSION, SUBJECT OF
COURSE TO ANY SPECIAL PROVISIONS APPLICABLE TO MARITIME CASES SUCH AS
THE PROVISION IN SEC 2 OF THE ADMINISTRATIVE ORDERS REVIEW ACT THAT
DIRECT REVIEW PROCEEDINGS SHALL BE CONDUCTED IN THE COURTS OF APPEALS
RATHER THAN THE DISTRICT COURTS. 

THE COURT HAS PREVIOUSLY HELD THAT AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION DENYING A SHIPPER'S REPARATION CLAIM IS SUBJECT TO
DIRECT REVIEW AT THE INSTANCE OF THE SHIPPER, UNITED STATES V.
INTERSTATE COMMERCE COMM'N, 337 U.S. 426, PRIMARILY BECAUSE THE ADVERSE
ORDER WOULD BE WHOLLY UNREVIEWABLE UNLESS THE SHIPPER IS PERMITTED TO
BRING AN APPEAL.  SEE ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S.
125.  LIKEWISE, IN D.L. PIAZZA CO. V. WEST COAST LINE, INC., 210 F.2D
947, CERT. DENIED, 348 U.S. 839, THE COURT OF APPEALS FOR THE SECOND
CIRCUIT WAS OF THE OPINION THAT THE PRINCIPLES OF UNITED STATES V.
INTERSTATE COMMERCE COMM'N WERE AUTHORITY FOR ALLOWING THE SHIPPER TO
SEEK DIRECT REVIEW OF AN ORDER OF THE FEDERAL MARITIME BOARD DENYING A
MAJOR PART, BUT NOT ALL, OF THE SHIPPER'S REPARATION CLAIM.  WE THINK
PIAZZA WAS CORRECT IN THIS RESPECT AND WE ACCORDINGLY AGREE WITH THE
COURT BELOW THAT IT WOULD HAVE JURISDICTION TO CONSIDER CONSOLO'S
APPEAL. 

AS FOR FLOTA'S APPEAL, MUCH OF WHAT WE HAVE SAID IN INTERSTATE
COMMERCE COMM'N V. ATLANTIC COAST LINE R. CO., DECIDED TODAY, IS
PERTINENT TO OUR CONSIDERATION HERE.  IN THAT CASE, WHERE DIRECT REVIEW
HAD NOT BEEN SOUGHT BY THE SHIPPER, WE HELD THAT THE CARRIER MAY HAVE
REVIEW OF A REPARATION ORDER OF THE INTERSTATE COMMERCE COMMISSION ONLY
IN CONNECTION WITH THE SHIPPER'S ENFORCEMENT ACTION UNDER SEC 16(2) OF
THE INTERSTATE COMMERCE ACT.  SECTION 30 OF THE SHIPPING ACT, 39 STAT.
737, AS AMENDED, PROVIDES FOR A SIMILAR ACTION BY THE SHIPPER TO
ENFORCE A REPARATION AWARD BY THE MARITIME COMMISSION AND EXTENDS
CERTAIN PROCEDURAL ADVANTAGES TO THE SHIPPER GENERALLY COMPARABLE TO
THOSE PROVIDED BY SEC 16(2) OF THE INTERSTATE COMMERCE ACT.  HE HAS A
WIDE SCOPE OF VENUE; HE IS NOT LIABLE FOR COSTS UNLESS THEY ACCRUE ON
HIS OWN APPEAL; HE IS ALLOWED REASONABLE ATTORNEY FEES IF HE ULTIMATELY
PREVAILS; HE IS THE BENEFICIARY OF BROAD SERVICE OF PROCESS AND JOINDER
PROVISIONS; AND THE FINDINGS AND ORDER OF THE COMMISSION ARE GIVEN
PRIMA FACIE EFFECT IN THE ENFORCEMENT ACTION.  THESE ADVANTAGES WERE
GIVEN TO THE SHIPPER BECAUSE HE WAS CONSIDERED GENERALLY TO BE THE
WEAKER PARTY IN THE CONTROVERSY AND HE SERVES AN IMPORTANT ROLE IN THE
ENFORCEMENT OF THE SHIPPING ACT.  IT WAS TO PROTECT ADVANTAGES SIMILAR
TO THESE BY PREVENTING THE CARRIER FROM EMASCULATING THE ENFORCEMENT
ACTION THAT WE CONCLUDED IN INTERSTATE COMMERCE COMM'N V. ATLANTIC
COAST LINE R. CO., THAT THE CARRIER COULD NOT SEEK REVIEW OF THE
REPARATION AWARD EXCEPT IN CONNECTION WITH A SHIPPER'S ENFORCEMENT
ACTION.  IT IS READILY APPARENT, WE THINK, THAT THIS HOLDING IS
APPLICABLE TO SHIPPING ACT CASES WHEN THE SHIPPER HIMSELF HAS NOT
SOUGHT DIRECT REVIEW IN THE COURT OF APPEALS. 

HERE, HOWEVER, THE JURISDICTION OF THE COURT OF APPEALS HAS BEEN
INVOKED BY THE SHIPPER, WHO SEEKS TO INCREASE THE AMOUNT OF HIS
DAMAGES.  IN THESE CIRCUMSTANCES, WE FIND NOTHING IN THE SHIPPING ACT
OR THE ADMINISTRATIVE ORDERS REVIEW ACT THAT WOULD PREVENT THE COURT OF
APPEALS FROM ALSO CONSIDERING FLOTA'S REQUEST, EITHER AS A CONSOLIDATED
APPEAL PURSUANT TO SEC 2 OF THE ADMINISTRATIVE ORDERS REVIEW ACT OR AS
AN INTERVENOR'S CROSS-CLAIM, TO HAVE THE REPARATION ORDER SET ASIDE OR
REDUCED, A RESULT WHICH WILL NOT, IN OUR VIEW, SUBSTANTIALLY IMPAIR THE
PROCEDURAL ADVANTAGES INTENDED FOR A SHIPPER UNDER SEC 30. 

CONCERNING VENUE, THE SHIPPER WILL STILL BE ABLE TO SELECT THE
FORUM.  ALTHOUGH THE VENUE PROVISIONS GOVERNING AN APPEAL ARE SOMEWHAT
DIFFERENT FROM THOSE GOVERNING AN ENFORCEMENT SUIT, THE SHIPPER STILL
HAS RELATIVELY WIDE OPPORTUNITIES TO FIND A CONVENIENT FORUM.  SECTION
3 OF THE ADMINISTRATIVE ORDERS REVIEW ACT (64 STAT. 1130, 5 U.S.C. SEC
1033 (1964 ED.))  ENABLES THE PETITIONER TO BRING SUIT IN THE JUDICIAL
CIRCUIT WHERE HE RESIDES, WHERE HIS PRINCIPAL OFFICE IS LOCATED OR IN
THE DISTRICT OF COLUMBIA.  BY REQUIRING THAT THE CARRIER'S REVIEW
PROCEEDING BE BROUGHT IN THE COURT SELECTED BY THE SHIPPER FOR HIS
APPEAL, ALL THE ISSUES IN THE CONTROVERSY WILL BE TRIED IN A RELATIVELY
CONVENIENT FORUM FOR THE SHIPPER. 

THE SHIPPER WILL NOT HAVE THE BENEFIT IN A DIRECT REVIEW OF THOSE
PROVISIONS IN SEC 30 THAT EXEMPT HIM FROM HIS COSTS AND ENABLE HIM TO
COLLECT HIS ATTORNEY'S FEES IF HE ULTIMATELY PREVAILS.  (FN13) HOWEVER,
THE ONLY ADDITIONAL COSTS AND ATTORNEY'S FEES THAT THE SHIPPER WILL
INCUR IF THE CARRIER IS PERMITTED TO CHALLENGE THE REPARATION AWARD
UPON A CONSOLIDATED APPEAL OR CROSS-CLAIM ARE THOSE COSTS AND FEES
ATTRIBUTABLE TO ADDITIONAL ISSUES NOT OTHERWISE RAISED BY THE SHIPPER'S
APPEAL.  TO THE EXTENT THE ARGUMENTS A CARRIER MAY ADVANCE TO DECREASE
OR SET ASIDE AN AWARD WOULD BE ASSERTED IN ANY EVENT AS DEFENSES TO THE
SHIPPER'S CLAIM FOR INCREASED REPARATIONS, NO ADDITIONAL COSTS OR FEES
WILL BE INCURRED BEYOND THOSE WHICH THE SHIPPER WOULD NORMALLY ASSUME
FOR HIS APPEAL.  AND, IF THE SHIPPER PREVAILS AGAINST THE CARRIER'S
APPEAL, ANY ADDITIONAL COSTS, ALTHOUGH NOT ATTORNEY'S FEES, AS ARE
INCURRED MAY BE ASSESSED AGAINST THE CARRIER AS THE LOSING PARTY UNDER
28 U.S.C. SEC 1912 (1964 ED.).  SEE ALSO DISTRICT OF COLUMBIA CIR. R.
20(B). 

THE MINIMAL DISADVANTAGES RESULTING TO THE SHIPPER FROM PERMITTING
THE CARRIER TO ATTACK THE REPARATION ORDER ARE MORE THAN OFFSET BY THE
DESIRABILITY OF A PROMPT AND EFFICIENT DETERMINATION OF THE VALIDITY OF
THE COMMISSION'S ORDER.  MANY OF THE ARGUMENTS A CARRIER MIGHT MAKE IN
DEFENSE AGAINST A SHIPPER'S SUIT TO INCREASE THE AWARD COULD ALSO BE
ADVANCED TO SHOW THAT THE AWARD SHOULD BE REDUCED OR SET ASIDE
ENTIRELY.  AND, ONCE THE CARRIER INTERVENES IN THE SHIPPER'S APPEAL,
ALL THE PARTIES INTERESTED IN THE COMPLETE RESOLUTION OF THE VALIDITY
OF THE COMMISSION'S ORDER ARE BEFORE THE COURT.  IN THIS SITUATION IT
WOULD MAKE LITTLE SENSE TO REQUIRE THE CARRIER TO BREAK OFF HIS
ARGUMENT SHORT OF ITS LOGICAL CONCLUSION AND RELITIGATE IT ANEW BEFORE
A DISTRICT COURT IN AN ENFORCEMENT ACTION.  (FN14) 

WITH THE JURISDICTION OF THE COURT OF APPEALS PROPERLY INVOKED BY THE
SHIPPER, THERE IS, THEREFORE, EVERY REASON TO PERMIT THE CARRIER NOT
ONLY TO LITIGATE THE AMOUNT OF THE REPARATION ORDER BUT ALSO TO INSIST
UPON A DETERMINATION OF THE VALIDITY OF THE COMMISSION'S ORDER, BOTH
WITH RESPECT TO THE CARRIER'S VIOLATION OF THE ACT (FN15) AND WITH
RESPECT TO THE REPARATION AWARD ITSELF.  IF THE CARRIER FINALLY
PREVAILS ON EITHER OF THESE CLAIMS, THERE WOULD THEN BE NO OCCASION FOR
A SEPARATE ENFORCEMENT SUIT IN THE DISTRICT COURT.  IF THE CARRIER'S
CLAIMS GOING TO THE VALIDITY OF THE ORDER ARE REJECTED BY THE COURT OF
APPEALS, THE DETERMINATION OF A VIOLATION BY THE CARRIER WOULD BE
BINDING IN THE SUBSEQUENT ENFORCEMENT ACTION BY THE SHIPPER; NOR WOULD
THERE BE ANY BASIS IN THE COURSE OF A SUBSEQUENT ENFORCEMENT ACTION
CONDUCTED IN ACCORDANCE WITH SEC 30 TO REDETERMINE WHETHER OR NOT THE
AWARD ITSELF IS SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE ADMINISTRATIVE
RECORD.  (FN16)  HENCE, THE SHIPPER WILL NEED TO LITIGATE THE ISSUE OF
VALIDITY ONLY ONCE, AND THIS IN THE COURT OF APPEALS AT THE INSTANCE OF
THE CARRIER.  ALTHOUGH TWO PROCEEDINGS MAY BE REQUIRED TO COLLECT HIS
DAMAGES, THIS IS ONLY A NECESSARY INCIDENT OF THE SHIPPER'S DECISION TO
BRING HIS APPEAL IN THE FIRST PLACE.    IN SHORT, ALTHOUGH A SHIPPER
MAY LOSE SOME OF THE PROCEDURAL ADVANTAGES GIVEN HIM BY SEC 30 IF HE IS
FORCED TO DEFEND THE VALIDITY OF THE COMMISSION'S ORDER IN CONJUNCTION
WITH HIS APPEAL, THESE LOSSES GENERALLY WILL NOT BE SUBSTANTIAL.  TO
THE EXTENT THAT HE IS DISADVANTAGED, THIS IS THE RESULT OF A CONSCIOUS
CHOICE HE HAS MADE.  AND FROM THE POINT OF VIEW OF THE ENFORCEMENT OF
THE SHIPPING ACT, IT IS CERTAINLY LESS IMPORTANT THAT THE SHIPPER BE
ASSISTED IN HIS EFFORTS TO OBTAIN A GREATER AWARD THAN IT IS TO ASSIST
HIM IN HIS EFFORTS TO ENFORCE AN EXISTING AWARD.  THE COURT OF APPEALS
WAS CORRECT IN SUSTAINING ITS OWN JURISDICTION TO HEAR FLOTA'S APPEAL. 

                     II. 

WE TURN, THEN, TO THE STANDARD OF REVIEW USED BY THE COURT OF APPEALS
WHEN IT REVERSED THE COMMISSION'S REPARATION ORDER. 

THE COURT OF APPEALS REJECTED THE COMMISSION'S FINDING THAT IT WOULD
NOT BE INEQUITABLE TO AWARD CONSOLO REPARATIONS BECAUSE IT FELT THIS
FINDING "IGNORES  ...  THE SUBSTANTIAL WEIGHT OF THE EVIDENCE  ...  ." 
119 U.S. APP. D.C. 345, 347, 342 F.2D 924, 926.  IT THEN CONCLUDED THAT
THE COMMISSION ABUSED ITS DISCRETION IN ORDERING REPARATIONS BECAUSE
"OF THE SUBSTANTIAL EVIDENCE SHOWING THAT THE REPARATIONS WOULD BE
INEQUITABLE."  ID., AT 352, 342 F.2D, AT 931.  IN EFFECT, THE STANDARD
OF REVIEW APPLIED AND ARTICULATED BY THE COURT OF APPEALS IN THIS CASE
WAS THAT IF "SUBSTANTIAL EVIDENCE" OR "THE SUBSTANTIAL EVIDENCE"
SUPPORTS A CONCLUSION CONTRARY TO THAT REACHED BY THE COMMISSION, THEN
THE COMMISSION MUST BE REVERSED.  (FN17)  THIS STANDARD IS NOT
CONSISTENT WITH THAT PROVIDED BY THE ADMINISTRATIVE PROCEDURE ACT. 

U.S.C. SEC 1009(E) (1964 ED.))  GIVES A REVIEWING COURT AUTHORITY TO
"SET ASIDE AGENCY ACTION, FINDINGS, AND CONCLUSIONS FOUND TO BE (1)
ARBITRARY, CAPRICIOUS, OR AN ABUSE OF DISCRETION  ...  OR (5)
UNSUPPORTED BY SUBSTANTIAL EVIDENCE  ...  ."  CF. UNITED STATES V.
INTERSTATE COMMERCE COMM'N, 91 U.S. APP. D.C. 178, 183-184, 198 F.2D
958, 963-964, CERT. DENIED, 344 U.S. 893.  WE HAVE DEFINED "SUBSTANTIAL
EVIDENCE" AS "SUCH RELEVANT EVIDENCE AS A REASONABLE MIND MIGHT ACCEPT
AS ADEQUATE TO SUPPORT A CONCLUSION."  CONSOLIDATED EDISON CO. V. LABOR
BOARD, 305 U.S. 197, 229.  "IT MUST BE ENOUGH TO JUSTIFY, IF THE TRIAL
WERE TO A JURY, A REFUSAL TO DIRECT A VERDICT WHEN THE CONCLUSION
SOUGHT TO BE DRAWN FROM IT IS ONE OF FACT FOR THE JURY."  LABOR BOARD
V. COLUMBIAN ENAMELING & STAMPING CO., 306 U.S. 292, 300.   (FN18)
THIS IS SOMETHING LESS THEN THE WEIGHT OF THE EVIDENCE, AND THE
POSSIBILITY OF DRAWING TWO INCONSISTENT CONCLUSIONS FROM THE EVIDENCE
DOES NOT PREVENT AN ADMINISTRATIVE AGENCY'S FINDING FROM BEING
SUPPORTED BY SUBSTANTIAL EVIDENCE.  LABOR BOARD V. NEVADA CONSOLIDATED
COPPER CORP., 316 U.S. 105, 106; KEELE HAIR & SCALP SPECIALISTS, INC.
V. FTC, 275 F.2D 18, 21. 

CONGRESS WAS VERY DELIBERATE IN ADOPTING THIS STANDARD OF REVIEW. 
(FN19)  IT FREES THE REVIEWING COURTS OF THE TIME-CONSUMING AND
DIFFICULT TASK OF WEIGHING THE EVIDENCE, IT GIVES PROPER RESPECT TO THE
EXPERTISE OF THE ADMINISTRATIVE TRIBUNAL AND IT HELPS PROMOTE THE
UNIFORM APPLICATION OF THE STATUTE.  (FN20)  THESE POLICIES ARE
PARTICULARLY IMPORTANT WHEN A COURT IS ASKED TO REVIEW AN AGENCY'S
FASHIONING OF DISCRETIONARY RELIEF.  (FN21)  IN THIS AREA AGENCY
DETERMINATIONS FREQUENTLY REST UPON A COMPLEX AND HARD-TO-REVIEW MIX OF
CONSIDERATIONS.  BY GIVING THE AGENCY DISCRETIONARY POWER TO FASHION
REMEDIES, CONGRESS PLACES A PREMIUM UPON AGENCY EXPERTISE, AND, FOR THE
SAKE OF UNIFORMITY, IT IS USUALLY BETTER TO MINIMIZE THE OPPORTUNITY
FOR REVIEWING COURTS TO SUBSTITUTE THEIR DISCRETION FOR THAT OF THE
AGENCY.  THESE POLICIES WOULD BE DAMAGED BY THE STANDARD OF REVIEW
ARTICULATED BY THE COURT BELOW. 

ORDINARILY WE WOULD BE INCLINED TO REMAND TO THE COURT OF APPEALS FOR
FURTHER CONSIDERATION IN LIGHT OF THE STANDARD OF REVIEW ESTABLISHED BY
THE ADMINISTRATIVE PROCEDURE ACT.  UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474; LABOR BOARD V. WALTON MFG. CO., 369 U.S. 404. 
HOWEVER, IN VIEW OF THE FACT THAT THIS CONTROVERSY ALREADY DATES BACK
MORE THAN EIGHT YEARS, THAT IT HAS BEEN BEFORE THE COURT OF APPEALS
TWICE AND THAT THE RELEVANT STANDARD IS NOT HARD TO APPLY IN THIS
INSTANCE, WE THINK THIS CONTROVERSY HAD BETTER TERMINATE NOW.  SEE
O'LEARY V. BROWN-PACIFIC-MAXON, INC., 340 U.S. 504. 

MAY DIRECT THE PAYMENT  ... OF FULL REPARATION TO THE COMPLAINANT FOR
THE INJURY CAUSED BY SUCH VIOLATION."  46 U.S.C. SEC 821 (1964 ED.). 
THIS CONTEMPLATES THAT THE COMMISSION SHALL HAVE A CERTAIN AMOUNT OF
DISCRETION, (FN22) BUT IT DOES NOT SPECIFY WHAT FACTORS ARE TO BE
CONSIDERED BY THE COMMISSION IN EXERCISING THIS DISCRETION.  HOWEVER,
WE ASSUME THAT THE COMMISSION COULD VALIDLY CONSIDER SUCH FACTORS AS
WHETHER A REPARATION AWARD WOULD ENHANCE THE ENFORCEMENT OF THE ACT,
WHETHER THE SHIPPER HAD SUFFERED COMPENSABLE INJURY AND WHETHER THE
AWARD OF REPARATIONS WOULD BE CONSISTENT WITH THE PREVIOUS APPLICATION
OF THE ACT, AS WELL AS THE FACTOR OF CULPABILITY OF THE CARRIER. 
(FN23)  HENCE, EVEN IF THE CARRIER'S CONDUCT WERE SUCH THAT IT WOULD BE
INEQUITABLE TO REQUIRE IT TO PAY A REPARATION AWARD, THIS BY ITSELF
MIGHT NOT BE SUFFICIENT TO ESTABLISH THAT THE COMMISSION ABUSED ITS
DISCRETION UNDER THE ACT.  HOWEVER, WE NEED NOT REST UPON THIS
DISTINCTION BECAUSE WE FEEL THAT IT IS CLEAR THAT THERE IS SUBSTANTIAL
EVIDENCE IN THE RECORD, CONSIDERED AS A WHOLE, TO SUPPORT THE
COMMISSION'S FINDINGS THAT IT WOULD NOT BE INEQUITABLE IN THIS CASE TO
REQUIRE FLOTA TO PAY CONSOLO REPARATIONS. 

THE MARITIME BOARD DETERMINED, AND THE COURT OF APPEALS AGREED, THAT
FLOTA HAD BEEN GUILTY OF "UNFAIRLY" OR "UNJUSTLY" DISCRIMINATING
AGAINST CONSOLO AND OF GIVING AN "UNDUE UNREASONABLE PREFERENCE" TO
PANAMA ECUADOR IN VIOLATION OF SEC 14 FOURTH AND SEC 16 FIRST OF THE
SHIPPING ACT.  (FN24)  THESE FINDINGS, WHICH WERE ESSENTIAL TO THE
DETERMINATION THAT FLOTA HAD VIOLATED THE SHIPPING ACT, SUBSTANTIALLY
UNDERCUT ANY EQUITIES THAT FLOTA MIGHT CLAIM.  NEVERTHELESS, THE COURT
OF APPEALS CONSIDERED IT INEQUITABLE TO MAKE FLOTA PAY REPARATIONS
BECAUSE FLOTA MIGHT HAVE BELIEVED, IN VIEW OF THE UNSETTLED LAW, THAT
IT WAS NOT ILLEGAL TO EXCLUDE CONSOLO. 

PRIOR TO FLOTA'S REJECTION OF CONSOLO'S REQUEST FOR A FAIR PORTION OF
THE SHIPPING SPACE, THE FEDERAL MARITIME BOARD HAD DECIDED ONLY TWO
CASES RELEVANT TO THIS ISSUE: CONSOLO V. GRACE LINE, SUPRA, AND BANANA
DISTRIBUTORS, INC. V. GRACE LINE, SUPRA.  BOTH CASES HELD INVALID
EXCLUSIVE DEALING CONTRACTS SIMILAR TO THE ONE IN QUESTION HERE.  THE
COURT OF APPEALS WOULD MINIMIZE THESE TWO CASES AS PRECEDENTS BECAUSE
NO ORDER WAS ISSUED IN THE FIRST GRACE LINE DECISION AND THE SECOND
GRACE LINE DECISION WAS ULTIMATELY REVERSED AND REMANDED BY THE COURT
OF APPEALS FOR THE SECOND CIRCUIT.  NEVERTHELESS, AT THE TIME FLOTA
ENTERED INTO THE 1957 EXCLUSIVE CONTRACT WITH PANAMA ECUADOR AND AT THE
TIME IT REJECTED CONSOLO'S REQUEST FOR A FAIR SHARE OF THE SHIPPING
SPACE, THESE DECISIONS WERE AUTHORITATIVE PRONOUNCEMENTS BY THE AGENCY
PRIMARILY RESPONSIBLE FOR ADMINISTERING AND INTERPRETING THE SHIPPING
ACT.  AND, ALTHOUGH THE SECOND GRACE LINE DECISION WAS ULTIMATELY
REVERSED AND REMANDED, UPON RECONSIDERATION THE BOARD STILL FOUND THE
EXCLUSIVE CONTRACT THERE IN QUESTION TO BE ILLEGAL AND THAT DECISION
WAS ULTIMATELY AFFIRMED UPON APPEAL TO THE SECOND CIRCUIT.  (FN25) 

AS FURTHER EVIDENCE OF GOOD FAITH, THE COURT OF APPEALS WAS OF THE
OPINION THAT FLOTA COULD REASONABLY HAVE BELIEVED ITS SITUATION WAS
DIFFERENT FROM THAT PRESENTED TO THE BOARD IN THE GRACE LINE CASES
BECAUSE OF PHYSICAL DIFFERENCES BETWEEN ITS VESSELS AND THOSE OWNED BY
GRACE LINE.  HOWEVER, IN ITS FIRST DECISION AFFIRMING THE BOARD'S
FINDING OF A VIOLATION THE COURT OF APPEALS HAD AFFIRMED THAT THE
RECORD "ADEQUATELY SUPPORTED" THE BOARD'S FINDING THAT "THE DIFFERENCES
BETWEEN FLOTA'S VESSELS AND GRACE'S VESSELS ARE NOT IMPRESSIVE."  112
U.S. APP. D.C. 302, 307, 302 F.2D 887, 892.  WE THINK THE COURT'S FIRST
JUDGMENT WAS THE CORRECT ONE.  THE RECORD IS ADEQUATE TO ESTABLISH THAT
FLOTA TOOK A DELIBERATE, AND WE THINK SUBSTANTIAL, RISK WHEN IT GAMBLED
THAT THE PREVIOUS CONTRARY PRECEDENT COULD BE DISTINGUISHED.  WE AGREE
WITH THE COMMISSION THAT THERE IS NOTHING INHERING IN THIS SITUATION
THAT WOULD MAKE IT INEQUITABLE TO REQUIRE FLOTA TO PAY REPARATIONS. 

NOR DO WE FEEL THE RECORD REVEALS THAT THE REPARATION AWARD IS
INEQUITABLE BECAUSE FLOTA HAD ASKED FOR DECLARATORY RELIEF OR BECAUSE
THAT REQUEST WAS PENDING BEFORE THE BOARD FOR ALMOST TWO YEARS.  IN THE
FIRST PLACE, FLOTA DID NOT REQUEST DECLARATORY RELIEF UNTIL AFTER IT
HAD ENTERED INTO THE OFFENDING EXCLUSIVE-DEALING CONTRACT WITH PANAMA
ECUADOR AND UNTIL IT BECAME CLEAR THAT CONSOLO WAS GOING TO SUE
ANYWAY.  UNDER THESE CIRCUMSTANCES, THE COMMISSION WAS JUSTIFIABLY
SKEPTICAL ABOUT FLOTA'S MOTIVES IN BRINGING SUIT.  FURTHER, ALTHOUGH
FLOTA'S SUIT WAS PENDING FOR ABOUT TWO YEARS, THE RECORD INDICATES THAT
MUCH OF THE DELAY INVOLVED IN THIS CASE WAS AT THE REQUEST OR APPROVAL
OF FLOTA.  AT ANY RATE, IT HAS NEVER BEEN THE LAW THAT A LITIGANT IS
ABSOLVED FROM LIABILITY FOR THAT TIME DURING WHICH HIS LITIGATION IS
PENDING.  LABOR BOARD V. ELECTRIC CLEANER CO., 315 U.S. 685; LOUISVILLE
& NASHVILLE R. CO. V. SLOSS-SHEFFIELD CO., 269 U.S. 217.  DURING THIS
TIME FLOTA WAS ABLE TO POSTPONE THE PREDICTABLE DEMISE OF ITS
DISCRIMINATORY CONTRACT AND CONSOLO CONTINUED TO SUFFER INJURY. 

SIMILARLY, WE DO NOT BELIEVE THAT FLOTA ACQUIRED ANY "EQUITIES" BY
BEING CAUGHT BETWEEN THE CONFLICTING DEMANDS OF CONSOLO AND PANAMA
ECUADOR.  NOT ONLY WAS THIS A DILEMMA OF FLOTA'S OWN MAKING, BUT IN
1958 FLOTA REJECTED AN OPPORTUNITY TO ESCAPE IT.  AT THAT TIME PANAMA
ECUADOR ANNOUNCED THAT IT WAS GOING TO CANCEL THE CONTRACT UNLESS FLOTA
REDUCED ITS RATES.  ALTHOUGH BELIEVING ITSELF UNDER NO LEGAL OBLIGATION
TO REDUCE RATES, FLOTA NEVERTHELESS DID SO IN ORDER TO PERPETUATE THE
ILLEGAL EXCLUSIVE-DEALING CONTRACT WITH PANAMA ECUADOR.  FINALLY, THERE
WAS A PROVISION IN FLOTA'S CONTRACT WITH PANAMA ECUADOR THAT ABSOLVED
FLOTA FROM LIABILITY FOR REFUSING TO COMPLY WITH THE CONTRACT IF IT WAS
ILLEGAL.  ALTHOUGH ABSOLUTION OF LIABILITY DEPENDED UPON THE CONTRACT
BEING DECLARED, IN FACT, ILLEGAL, IN LIGHT OF THE PREVIOUS GRACE LINE
DECISIONS WE THINK THIS WOULD HAVE BEEN THE MORE REASONABLE COURSE OF
ACTION. 

FINALLY WE REJECT THE ARGUMENT THAT FLOTA DID NOT BENEFIT FROM ITS
POLICY OF EXCLUDING CONSOLO AND THAT CONSOLO LOST "ONLY" EXPECTED
PROFITS.  THERE IS EVIDENCE IN THE RECORD THAT FLOTA CONSIDERED ITS
EXCLUSIVE-DEALING CONTRACT WITH PANAMA ECUADOR MORE PROFITABLE THAN
WOULD HAVE BEEN A MULTIPLE CONTRACT WITH SEVERAL SHIPPERS.  (FN26)  IF
FLOTA DID NOT BELIEVE THERE WAS AN ADVANTAGE IN RETAINING ITS EXCLUSIVE
CONTRACT WITH PANAMA ECUADOR IT IS REASONABLE TO THINK THAT IT WOULD
HAVE TAKEN THE OPPORTUNITY GIVEN IT IN 1958 BY PANAMA ECUADOR TO CANCEL
THAT CONTRACT AND OFFER SPACE EQUITABLY TO ALL SHIPPERS.  FURTHERMORE,
WE THINK THE COURT BELOW WRONGLY MINIMIZED THE STING OF LOSING EXPECTED
PROFITS RESULTING FROM BEING UNJUSTLY AND ILLEGALLY DENIED SHIPPING
SPACE.  SUCH A LOSS IS REAL AND IT IS CERTAINLY COMPENSABLE UNDER THE
SHIPPING ACT.  SEE MCLEAN V. DENVER & RIO GRANDE R. CO., 203 U.S. 38,
48-49; ROBERTO HERNANDEZ, INC. V. ARNOLD BERNSTEIN
SCHIFFAHRTSGESELLSCHAFT, M.B.H., 116 F.2D 849, CERT. DENIED, SUB NOM.
COMPANIA ESPANOLA DE NAVEGACION MARITIMA, S.A. V. ROBERTO HERNANDEZ,
INC., 313 U.S. 582. 

WITHOUT FURTHER BELABORING THIS ISSUE, SUFFICE IT TO SAY THAT THERE
IS SUBSTANTIAL EVIDENCE IN THE RECORD CONSIDERED AS A WHOLE FOR THE
COMMISSION TO CONCLUDE THAT, "FLOTA INITIATED AND PURSUED THE UNLAWFUL
ACT WITHOUT GOOD CAUSE AND WITHOUT A SATISFACTORY SHOWING OF GOOD
FAITH, AND WE HAVE BEEN UNABLE, EXCEPT AS NOTED, TO FIND ANY EQUITY IN
ITS CONTENTIONS WHETHER VIEWED SEPARATELY OR TOGETHER."  THIS BEING SO,
IT WAS CLEAR ERROR ON THE PART OF THE COURT OF APPEALS TO REVERSE THE
COMMISSION'S AWARD OF REPARATIONS.  (FN27)  REVERSED. 

FN1  "SEC 14 FOURTH.  NO COMMON CARRIER BY WATER SHALL MAKE ANY
UNFAIR OR UNJUSTLY DISCRIMINATORY CONTRACT WITH ANY SHIPPER BASED ON
THE VOLUME OF FREIGHT OFFERED, OR UNFAIRLY TREAT OR UNJUSTLY
DISCRIMINATE AGAINST ANY SHIPPER IN THE MATTER OF (A) CARGO SPACE
ACCOMMODATIONS OR OTHER FACILITIES, DUE REGARD BEING HAD FOR THE PROPER
LOADING OF THE VESSEL AND THE AVAILABLE TONNAGE; (B) THE LOADING AND
LANDING OF FREIGHT IN PROPER CONDITION; OR (C) THE ADJUSTMENT AND
SETTLEMENT OF CLAIMS."  39 STAT. 733, AS AMENDED, 46 U.S.C. SEC 812
(1964 ED.). 

FN2 "SEC 16 FIRST.  IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY
WATER TO MAKE OR GIVE ANY UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE
TO ANY PARTICULAR PERSON, LOCALITY, OR DESCRIPTION OF TRAFFIC IN ANY
RESPECT WHATSOEVER, OR TO SUBJECT ANY PARTICULAR PERSON, LOCALITY, OR
DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE PREJUDICE OR
DISADVANTAGE IN ANY RESPECT WHATSOEVER  ... ."  39 STAT. 734, AS
AMENDED, 46 U.S.C. SEC 815 (1964 ED.).    FN3  PHILIP R. CONSOLO V.
GRACE LINE INC., 4 F.M.B. 293 (1953).  NO ORDER WAS ISSUED PURSUANT TO
THIS REPORT. 

FN4  BANANA DISTRIBUTORS, INC. V. GRACE LINE INC., 5 F.M.B. 278
(1957).  THIS DECISION PREDICATED LIABILITY UPON THE THEORY THAT
BANANAS WERE "SUSCEPTIBLE TO COMMON CARRIAGE" AND COULD BE CARRIED BY A
CARRIER ONLY UNDER TERMS OF COMMON CARRIAGE.  THIS DECISION WAS
REVERSED AND REMANDED BY THE SECOND CIRCUIT, 263 F.2D 709.  ON REMAND
THE BOARD DROPPED ITS "SUSCEPTIBILITY" THEORY BUT NEVERTHELESS FOUND
GRACE LINE TO BE A COMMON CARRIER UNDER THE SHIPPING ACT AND HELD IT
COULD NOT EVADE THE REQUIREMENTS OF THE ACT AS TO ANY PART OF THE GOODS
IT CARRIED.  5 F.M.B. 615 (1959).  THIS WAS AFFIRMED BY THE SECOND
CIRCUIT UPON APPEAL.  280 F.2D 790, CERT. DENIED, 364 U.S. 933. 

FN5  5 F.M.B. 633, 641.  THIS ORDER WAS ISSUED ON JULY 2, 1959. 
FLOTA COMPLIED BY SEPTEMBER 1, 1959. 

FN6  6 F.M.B. 262. 

FN7  112 U.S. APP. D.C. 302, 311, 302 F.2D 887, 896. 

FN8  THE FUNCTIONS AND DUTIES OF THE FEDERAL MARITIME BOARD, SO FAR
AS RELEVANT TO THIS CASE, WERE TRANSFERRED TO THE FEDERAL MARITIME
COMMISSION ON AUGUST 12, 1961.  REORGANIZATION PLAN NO. 7 OF 1961, 75
STAT. 840, 46 U.S.C. SEC 1111, NOTE (1964 ED.). 

FN9  7 F.M.C. 635. 

FN10  NONE OF THE PARTIES CHALLENGED, AT THIS TIME, THE JURISDICTION
OF THE COURT OF APPEALS TO HEAR THESE CONSOLIDATED APPEALS. 

FN11  "ANY PERSON MAY FILE WITH THE FEDERAL MARITIME BOARD A SWORN
COMPLAINT SETTING FORTH ANY VIOLATION OF THIS CHAPTER BY A COMMON
CARRIER BY WATER, OR OTHER PERSON SUBJECT TO THIS CHAPTER, AND ASKING
REPARATION FOR THE INJURY, IF ANY, CAUSED THEREBY  ...  .  IF THE
COMPLAINT IS NOT SATISFIED THE BOARD SHALL, EXCEPT AS OTHERWISE
PROVIDED IN THIS CHAPTER, INVESTIGATE IT IN SUCH MANNER AND BY SUCH
MEANS, AND MAKE SUCH ORDER AS IT DEEMS PROPER.  THE BOARD, IF THE
COMPLAINT IS FILED WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUED,
MAY DIRECT THE PAYMENT, ON OR BEFORE A DAY NAMED, OF FULL REPARATION TO
THE COMPLAINANT FOR THE INJURY CAUSED BY SUCH VIOLATION."  39 STAT.
736, AS AMENDED, 46 U.S.C. SEC 821 (1964 ED.). 

FN12  MUCH OF WHAT WE SAID IN INTERSTATE COMMERCE COMM'N V. ATLANTIC
COAST LINE R. CO., ANTE, IS RELEVANT TO THE JURISDICTIONAL ISSUE
PRESENTED BY THIS CASE.  THE SENATE REPORT EXPLAINING THE SHIPPING ACT
EXPRESSLY OBSERVED THAT THE ENFORCEMENT PROVISIONS OF THE SHIPPING ACT
WERE "MODELED VERY CLOSELY AFTER THE INTERSTATE-COMMERCE ACT  ...  ." 
S. REP. NO. 689, 64TH CONG., 1ST SESS., P. 13.  THAT REPORT ALSO
COUNSELS THAT "THE ADMINISTRATION AND ENFORCEMENT PROVISIONS OF THE
INTERSTATE COMMERCE ACT AND THE NEARLY 30 YEARS' EXPERIENCE OF THE
INTERSTATE COMMERCE COMMISSION MAY BE ADAPTED WITH SLIGHT MODIFICATIONS
TO THE PURPOSES OF THE SHIPPING ACT."  ID., P. 12. 

FN13  UNLIKE THE INTERSTATE COMMERCE COMMISSION SITUATION, THERE IS
NO POSSIBILITY HERE THAT AN ENFORCEMENT ACTION CAN BE JOINED WITH A
DIRECT REVIEW PROCEEDING (THEREBY RAISING THE POSSIBILITY THAT THE
FAVORABLE PROVISIONS OF THE ENFORCEMENT SECTION MAY BECOME APPLICABLE
AND ENSURING THAT THE COMMISSION WILL BE A PARTY), BECAUSE ENFORCEMENT
SUITS MUST BE IN THE DISTRICT COURTS AND DIRECT REVIEWS CAN BE TAKEN
ONLY TO THE COURTS OF APPEALS. 

FN14  THESE SAME CONSIDERATIONS OF JUDICIAL ECONOMY AND FAIRNESS TO
ALL THE PARTIES LIE BEHIND THE DOCTRINE OF ANCILLARY JURISDICTION,
MOORE V. NEW YORK COTTON EXCHANGE, 270 U.S. 593; SILER V. LOUISVILLE &
NASHVILLE R. CO., 213 U.S. 175; 2 MOORE, FEDERAL PRACTICE PARA 8.07(5)
(2D ED. 1965), AND THE DOCTRINE THAT AN INTERVENOR OF RIGHT MAY ASSERT
A CROSS-CLAIM WITHOUT INDEPENDENT JURISDICTIONAL GROUNDS, 4 MOORE,
FEDERAL PRACTICE PARA 24.17 (2D ED. 1963). 

FN15  OF COURSE, IN THIS CASE THE ISSUE OF FLOTA'S VIOLATION OF THE
ACT WAS RESOLVED IN A PREVIOUS DIRECT APPEAL BY FLOTA FROM THE BOARD'S
CEASE-AND-DESIST ORDER.  THERE IS NO QUESTION OF THE JURISDICTION OF
THE COURT OF APPEALS TO CONSIDER THAT APPEAL. 

FN16  SEE OUR DISCUSSION OF THE DEFENSES AVAILABLE TO A CARRIER IN AN
ENFORCEMENT ACTION AT INTERSTATE COMMERCE COMM'N V. ATLANTIC COAST LINE
R. CO., ANTE, P. 594, N. 6. 

FN17  IN ITS FIRST OPINION, REMANDING THE ISSUE OF REPARATIONS TO THE
COMMISSION, THE COURT OF APPEALS SAID, "BUT IN REVIEWING THE EVIDENCE
AS APPOSED TO REVIEWING ISSUES OF LAW, WE ARE CONFINED TO A MUCH MORE
RESTRICTED STANDARD, AS THE ADMINISTRATIVE PROCEDURE ACT.  SEC 1 ET
SEQ., 5 U.S.C.A. SEC 1001 ET SEQ., AND A LONG LINE OF SUPREME COURT
DECISIONS, CLEARLY INDICATE.  SEE, E.G., UNIVERSAL CAMERA CORP. V.
NATIONAL LABOR RELATIONS BOARD, 340 U.S. 474, 71 S. CT. 456, 95 L. ED.
456 (1951); UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP., 315 U.S.
475, 489, 62 S. CT. 722, 86 L. ED. 971 (1942).  WE HAVE EXAMINED THE
APPEALS FROM THE REPARATIONS AWARD WITH THESE CONSIDERATIONS IN MIND." 
112 U.S. APP. D.C. 302, 309, 302 F.2D 887, 894.  HOWEVER, IN ITS SECOND
OPINION, WHEN IT REVIEWED THE COMMISSION'S FINDING THAT IT WOULD NOT BE
INEQUITABLE TO AWARD REPARATIONS, THE COURT OF APPEALS MADE NO
REFERENCE TO THE ADMINISTRATIVE PROCEDURE ACT.  THE STANDARD OF REVIEW
ARTICULATED AND APPARENTLY APPLIED IN THAT OPINION WAS INCONSISTENT
WITH THE ADMINISTRATIVE PROCEDURE ACT. 

WE DO NOT READ THE OPINION BELOW AS ASSERTING THAT THE COURT OF
APPEALS, IN A DIRECT REVIEW PROCEEDING, MAY CONDUCT A DE NOVO REVIEW OF
THE EQUITIES OF A REPARATION AWARD.  WE FIND NOTHING IN THE SHIPPING
ACT, THE HOBBS ACT, OR THE ADMINISTRATIVE PROCEDURE ACT THAT WOULD
AUTHORIZE A DE NOVO REVIEW IN THESE CIRCUMSTANCES, AND IN THE ABSENCE
OF SPECIFIC STATUTORY AUTHORIZATION, A DE NOVO REVIEW IS GENERALLY NOT
TO BE PRESUMED.  4 DAVIS, ADMINISTRATIVE LAW TREATISE SEC 29.08
(1958).  SEE UNITED STATES V. CARLO BIANCHI & CO., INC., 373 U.S. 709,
715; MORRISON-KNUDSEN CO. V. O'LEARY, 288 F.2D 542, 543-544. 

FN18  ALTHOUGH THESE TWO CASES WERE DECIDED BEFORE THE ENACTMENT OF
THE ADMINISTRATIVE PROCEDURE ACT, THEY ARE CONSIDERED AUTHORITATIVE IN
DEFINING THE WORDS "SUBSTANTIAL EVIDENCE" AS USED IN THE ACT.  4 DAVIS,
ADMINISTRATIVE LAW TREATISE SEC 29.02. 

FN19  THE TEST OF SUBSTANTIAL EVIDENCE IN THE RECORD CONSIDERED AS A
WHOLE HAD BEEN APPLIED BY SOME REVIEWING COURTS EVEN BEFORE CONGRESS
ACTED.  SEE UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 483,
490. 

FN20  SEE FEDERAL TRADE COMM'N V. MARY CARTER PAINT CO., 382 U.S. 46;
LABOR BOARD V. SOUTHLAND MFG. CO., 201 F.2D 244, 246.  THESE SAME
POLICIES ARE BEHIND THE "PRIMARY JURISDICTION DOCTRINE."  FAR EAST
CONFERENCE V. UNITED STATES, 342 U.S. 570, 574-575; UNITED STATES
NAVIGATION CO, INC. V. CUNARD STEAMSHIP CO, LTD., 284 U.S. 474.  SEE
GENERALLY, STASON, "SUBSTANTIAL EVIDENCE" IN ADMINISTRATIVE LAW, 89 U.
PA. L. REV.  1026 (1941). 

FN21  SEE LABOR BOARD V. SEVEN-UP BOTTLING CO. OF MIAMI, INC. 344
U.S. 344; SECURITIES & EXCHANGE COMM'N V. CHENERY CORP., 332 U.S. 194,
207-209; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177.  SEE ALSO
SECURITY ADMINISTRATOR V. QUAKER OATS CO., 318 U.S. 218, WHERE
CONSIDERABLE DEFERENCE WAS GIVEN THE FEDERAL SECURITY ADMINISTRATOR IN
THE PROMULGATION OF RULES PURSUANT TO THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT. 

FN22  SEE GRACE LINE, INC. V. SKIPS A/S VIKING LINE, 7 F.M.C. 432. 
SEE ALSO JOHNSTON SEED CO. V. UNITED STATES, 90 F. SUPP. 358, AFF'D 191
F.2D 228; BOSTON WOOL TRADE ASSN. V. DIRECTOR GENERAL, 69 I.C.C. 282,
309, WHERE, TO AVOID AN AWARD OF REPARATIONS THAT WOULD BE INEQUITABLE,
THE I.C.C. AND THE COURTS FOUND CERTAIN PRACTICES BY THE CARRIERS TO BE
UNREASONABLE ONLY PROSPECTIVELY.  SEE ALSO DELAWARE, LACKAWANNA &
WESTERN COAL CO. V. DELAWARE, LACKAWANNA & W.R. CO., 46 I.C.C. 506,
509. 

FN23  THE SENATE REPORT SAYS THAT THE ENFORCEMENT PROVISIONS IN THE
SHIPPING ACT "CONFER UPON THE BOARD POWER TO MAKE ORDERS NECESSARY FOR
THE ENFORCEMENT OF THE ACT  ...  ."  S. REP. NO. 689, 64TH CONG., 1ST
SESS., P. 13.  LATER ON, THE REPORT SAYS THE BOARD SHALL "MAKE SUCH
ORDER AS MAY BE PROPER, INCLUDING AN AWARD OF REPARATION FOR AN INJURY
RESULTING FROM THE VIOLATION."  IBID. 

FN24 THE COURT OF APPEALS SAID IT IS "BEYOND QUESTION" THAT THE BOARD
CONSIDERED AND MADE SUFFICIENT FINDINGS, SUPPORTED BY THE RECORD, THAT
FLOTA'S EXCLUSIVE CONTRACT WITH PANAMA ECUADOR WAS "UNJUST" AND
"UNREASONABLE."  IT ALSO SAID THAT THE BOARD WAS "ENTITLED TO CONCLUDE
THAT NEITHER THE EXCLUSIVE CONTRACT NOR THE REQUEST FOR A DECLARATORY
ORDER RENDERED FLOTA'S DISCRIMINATORY REFUSAL OF SPACE REASONABLE OR
JUST."  112 U.S. APP. D.C. 302, 307-308, 302 F.2D 887, 892-893. 

FN25  IT IS IMPORTANT TO DISTINGUISH THIS SITUATION FROM ONE WHERE A
LITIGANT AFFIRMATIVELY RELIES UPON AN AGENCY DECLARATION, LATER
REVERSED, THAT SPECIFICALLY AUTHORIZED PARTICULAR BEHAVIOR.  SEE
ARIZONA GROCERY CO. V. ATCHISON, TOPEKA & SANTA FE R. CO., 284 U.S.
370 

FN26  FLOTA'S OPERATING MANAGER IN THE UNITED STATES TESTIFIED THAT
"IT IS BETTER TO DEAL WITH ONE SHIPPER THAN WITH THREE."  THERE IS ALSO
EVIDENCE THAT FLOTA HAD BEEN ABLE TO SETTLE PANAMA ECUADOR'S CLAIMS FOR
SHIPMENT DAMAGES ON A BASIS OF ONLY "2.4% WHICH IS A VERY LOW
PERCENTAGE IN COMPARISON WITH THE USUAL 15% DEDUCTION WHICH APPLIES TO
THIS TYPE OF TRANSPORTATION." 

FN27  BECAUSE OF ITS DISPOSITION OF THIS CASE, THE COURT OF APPEALS
FOUND IT UNNECESSARY TO CONSIDER FLOTA'S OBJECTION THAT COUNSEL FOR THE
COMMISSION, WHO PARTICIPATED IN THE WRITING OF THE COMMISSION'S
REPARATION AWARD UPON REMAND, HAD VIOLATED 5 U.S.C. SEC. 1004 (1964
ED.)  BECAUSE HE HAD PREVIOUSLY PARTICIPATED AS PUBLIC COUNSEL IN THE
TRIAL BEFORE THE HEARING EXAMINER ON THE ISSUE OF WHETHER FLOTA HAD
VIOLATED THE SHIPPING ACT (ALTHOUGH NOT IN THE TRIAL ON THE REPARATION
ISSUE) AND HAD DEFENDED THE COMMISSION'S FINDING OF VIOLATION AND AWARD
OF REPARATIONS BEFORE THE COURT OF APPEALS IN THE FIRST CONSOLIDATED
APPEALS.  WE HAVE EXAMINED FLOTA'S CONTENTION IN THIS REGARD AND FIND
IT WITHOUT MERIT. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















MEMOIRS V. MASSACHUSETTS 383 U.S. 413 


NO. 368.  ARGUED DECEMBER 7-8, 1965 - DECIDED MARCH 21, 1966 - 349 MASS.
69, 206 N.E.2D 403, REVERSED. 


APPELLEE, THE ATTORNEY GENERAL OF MASSACHUSETTS, BROUGHT THIS CIVIL
EQUITY ACTION FOR AN ADJUDICATION OF OBSCENITY OF CLELAND'S MEMOIRS OF
A WOMAN OF PLEASURE (FANNY HILL), AND APPELLANT PUBLISHER INTERVENED. 
FOLLOWING A HEARING, INCLUDING EXPERT TESTIMONY AND OTHER EVIDENCE,
ASSESSING THE BOOK'S CHARACTER BUT NOT THE MODE OF DISTRIBUTION, THE
TRIAL COURT DECREED THE BOOK OBSCENE AND NOT ENTITLED TO THE PROTECTION
OF THE FIRST AND FOURTEENTH AMENDMENTS.  THE MASSACHUSETTS SUPREME
JUDICIAL COURT AFFIRMED, HOLDING THAT A PATENTLY OFFENSIVE BOOK WHICH
APPEALS TO PRURIENT INTEREST NEED NOT BE UNQUALIFIEDLY WORTHLESS BEFORE
IT CAN BE DEEMED OBSCENE.  HELD:  THE JUDGMENT IS REVERSED.  PP. 415
433. 

MR. JUSTICE BRENNAN, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
FORTAS, CONCLUDED THAT: 

1.  UNDER THE TEST IN ROTH V. UNITED STATES, 354 U.S. 476, AS
ELABORATED IN SUBSEQUENT CASES, EACH OF THREE ELEMENTS MUST
INDEPENDENTLY BE SATISFIED BEFORE A BOOK CAN BE HELD OBSCENE:  (A) THE
DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO A PRURIENT
INTEREST IN SEX; (B) THE MATERIAL IS PATENTLY OFFENSIVE BECAUSE IT
AFFRONTS CONTEMPORARY COMMUNITY STANDARDS RELATING TO THE DESCRIPTION
OR REPRESENTATION OF SEXUAL MATTERS; AND (C) THE MATERIAL IS UTTERLY
WITHOUT REDEEMING SOCIAL VALUE.  P. 418. 

2.  SINCE A BOOK CANNOT BE PROSCRIBED AS OBSCENE UNLESS FOUND TO BE
UTTERLY WITHOUT REDEEMING SOCIAL VALUE, THE SUPREME JUDICIAL COURT
ERRONEOUSLY INTERPRETED THE FEDERAL CONSTITUTIONAL STANDARD.  PP. 419
420. 

3.  ON THE PREMISE, NOT ASSESSED HERE, THAT IT HAS THE REQUISITE
PRURIENT APPEAL, IS PATENTLY OFFENSIVE, AND HAS ONLY A MODICUM OF
SOCIAL IMPORTANCE, EVIDENCE OF COMMERCIAL EXPLOITATION OF THE BOOK FOR
THE SAKE OF PRURIENT APPEAL TO THE EXCLUSION OF ALL OTHER VALUES MIGHT
IN A DIFFERENT PROCEEDING JUSTIFY THE CONCLUSION THAT THE PUBLICATION
AND DISTRIBUTION OF MEMOIRS WAS NOT CONSTITUTIONALLY PROTECTED. 
GINZBURG V. UNITED STATES, POST, P. 463.  PP. 420-421. 

MR. JUSTICE BLACK AND MR. JUSTICE STEWART CONCUR IN THE REVERSAL FOR
THE REASONS GIVEN IN THEIR RESPECTIVE DISSENTING OPINIONS IN GINZBURG
V. UNITED STATES, POST, P. 476 AND P. 497 AND MISHKIN V. NEW YORK,
POST, P. 515 AND P. 518.  P. 121. 

MR. JUSTICE DOUGLAS CONCLUDED THAT: 

1.  SINCE THE FIRST AMENDMENT FORBIDS CENSORSHIP OF EXPRESSION OF
IDEAS NOT LINKED WITH ILLEGAL ACTION, FANNY HILL CANNOT BE PROSCRIBED. 
PP. 426; 427-433. 

2.  EVEN UNDER THE PREVAILING VIEW OF THE ROTH TEST THE BOOK CANNOT
BE HELD TO BE OBSCENE IN VIEW OF SUBSTANTIAL EVIDENCE SHOWING THAT IT
HAS LITERARY, HISTORICAL, AND SOCIAL IMPORTANCE.  P. 426. 

3.  SINCE THERE IS NO POWER UNDER THE FIRST AMENDMENT TO CONTROL MERE
EXPRESSION, THE MANNER IN WHICH A BOOK THAT CONCEDEDLY HAS SOCIAL WORTH
IS ADVERTISED AND SOLD IS IRRELEVANT.  P. 427. 

4.  THERE IS NO BASIS IN HISTORY FOR THE VIEW EXPRESSED IN ROTH THAT
"OBSCENE" SPEECH IS "OUTSIDE" THE PROTECTION OF THE FIRST AMENDMENT. 
PP. 428-431. 

5.  NO INTEREST OF SOCIETY JUSTIFIES OVERRIDING THE GUARANTEES OF
FREE SPEECH AND PRESS AND ESTABLISHING A REGIME OF CENSORSHIP.  PP. 431
433. 

A BOOK NAMED "JOHN CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE" ET AL. V.
ATTORNEY GENERAL OF MASSACHUSETTS. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH THE CHIEF JUSTICE AND MR. JUSTICE FORTAS JOIN. 

THIS IS AN OBSCENITY CASE IN WHICH MEMOIRS OF A WOMAN OF PLEASURE
(COMMONLY KNOWN AS FANNY HILL), WRITTEN BY JOHN CLELAND IN ABOUT 1750,
WAS ADJUDGED OBSCENE IN A PROCEEDING THAT PUT ON TRIAL THE BOOK ITSELF,
AND NOT ITS PUBLISHER OR DISTRIBUTOR.  THE PROCEEDING WAS A CIVIL
EQUITY SUIT BROUGHT BY THE ATTORNEY GENERAL OF MASSACHUSETTS, PURSUANT
TO GENERAL LAWS OF MASSACHUSETTS, CHAPTER 272, SECS. 28C-28H, TO HAVE
THE BOOK DECLARED OBSCENE.  (FN1)  SECTION 28C REQUIRES THAT THE
PETITION COMMENCING THE SUIT BE "DIRECTED AGAINST THE BOOK BY NAME" AND
THAT AN ORDER TO SHOW CAUSE "WHY SAID BOOK SHOULD NOT BE JUDICIALLY
DETERMINED TO BE OBSCENE" BE PUBLISHED IN A DAILY NEWSPAPER AND SENT BY
REGISTERED MAIL "TO ALL PERSONS INTERESTED IN THE PUBLICATION." 
PUBLICATION OF THE ORDER IN THIS CASE OCCURRED IN A BOSTON DAILY
NEWSPAPER, AND A COPY OF THE ORDER WAS SENT BY REGISTERED MAIL TO G.P.
PUTNAM'S SONS, ALLEGED TO BE THE PUBLISHER AND COPYRIGHT HOLDER OF THE
BOOK. 

AS AUTHORIZED BY SEC. 28D, G.P. PUTNAM'S SONS INTERVENED IN THE
PROCEEDINGS IN BEHALF OF THE BOOK, BUT IT DID NOT CLAIM THE RIGHT
PROVIDED BY THAT SECTION TO HAVE THE ISSUE OF OBSCENITY TRIED BY A
JURY.  AT THE HEARING BEFORE A JUSTICE OF THE SUPERIOR COURT, WHICH WAS
CONDUCTED, UNDER SEC. 28F, "IN ACCORDANCE WITH THE USUAL COURSE OF
PROCEEDINGS IN EQUITY," THE COURT RECEIVED THE BOOK IN EVIDENCE AND
ALSO, AS ALLOWED BY THE SECTION, HEARD THE TESTIMONY OF EXPERTS (FN2)
AND ACCEPTED OTHER EVIDENCE, SUCH AS BOOK REVIEWS, IN ORDER TO ASSESS
THE LITERARY, CULTURAL, OR EDUCATIONAL CHARACTER OF THE BOOK.  THIS
CONSTITUTED THE ENTIRE EVIDENCE, AS NEITHER SIDE AVAILED ITSELF OF THE
OPPORTUNITY PROVIDED BY THE SECTION TO INTRODUCE EVIDENCE "AS TO THE
MANNER AND FORM OF ITS PUBLICATION, ADVERTISEMENT, AND DISTRIBUTION." 
(FN3)  THE TRIAL JUSTICE ENTERED A FINAL DECREE, WHICH ADJUDGED MEMOIRS
OBSCENE AND DECLARED THAT THE BOOK "IS NOT ENTITLED TO THE PROTECTION
OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE
UNITED STATES AGAINST ACTION BY THE ATTORNEY GENERAL OR OTHER LAW
ENFORCEMENT OFFICER PURSUANT TO THE PROVISIONS OF  ...  SEC. 28B, OR
OTHERWISE."  (FN4)  THE MASSACHUSETTS SUPREME JUDICIAL COURT AFFIRMED
THE DECREE.  349 MASS.  69, 206 N.E.2D 403 (1965).  WE NOTED PROBABLE
JURISDICTION.  382 U.S. 900.  WE REVERSE.  (FN5)

                                       I. 

THE TERM "OBSCENE" APPEARING IN THE MASSACHUSETTS STATUTE HAS BEEN
INTERPRETED BY THE SUPREME JUDICIAL COURT TO BE AS EXPANSIVE AS THE
CONSTITUTION PERMITS:  THE "STATUTE COVERS ALL MATERIAL THAT IS OBSCENE
IN THE CONSTITUTIONAL SENSE."  ATTORNEY GENERAL V. THE BOOK NAMED
"TROPIC OF CANCER," 345 MASS. 11, 13, 184 N.E.2D 328, 330 (1962). 
INDEED, THE FINAL DECREE BEFORE US EQUATES THE FINDING THAT MEMOIRS IS
OBSCENE WITHIN THE MEANING OF THE STATUTE WITH THE DECLARATION THAT THE
BOOK IS NOT ENTITLED TO THE PROTECTION OF THE FIRST AMENDMENT.  (FN6)
THUS THE SOLE QUESTION BEFORE THE STATE COURTS WAS WHETHER MEMOIRS
SATISFIES THE TEST OF OBSCENITY ESTABLISHED IN ROTH V. UNITED STATES,
354 U.S. 476. 

WE DEFINED OBSCENITY IN ROTH IN THE FOLLOWING TERMS:  "WHETHER TO THE
AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT
THEME OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST." 
354 U.S., AT 489.  UNDER THIS DEFINITION, AS ELABORATED IN SUBSEQUENT
CASES, THREE ELEMENTS MUST COALESCE:  IT MUST BE ESTABLISHED THAT (A)
THE DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO A
PRURIENT INTEREST IN SEX; (B) THE MATERIAL IS PATENTLY OFFENSIVE
BECAUSE IT AFFRONTS CONTEMPORARY COMMUNITY STANDARDS RELATING TO THE
DESCRIPTION OR REPRESENTATION OF SEXUAL MATTERS; AND (C) THE MATERIAL
IS UTTERLY WITHOUT REDEEMING SOCIAL VALUE. 

THE SUPREME JUDICIAL COURT PURPORTED TO APPLY THE ROTH DEFINITION OF
OBSCENITY AND HELD ALL THREE CRITERIA SATISFIED.  WE NEED NOT CONSIDER
THE CLAIM THAT THE COURT ERRED IN CONCLUDING THAT MEMOIRS SATISFIED THE
PRURIENT APPEAL AND PATENT OFFENSIVENESS CRITERIA; FOR REVERSAL IS
REQUIRED BECAUSE THE COURT MISINTERPRETED THE SOCIAL VALUE CRITERION. 
THE COURT APPLIED THE CRITERION IN THIS PASSAGE: 

"IT REMAINS TO CONSIDER WHETHER THE BOOK CAN BE SAID TO BE 'UTTERLY
WITHOUT SOCIAL IMPORTANCE.'  WE ARE MINDFUL THAT THERE WAS EXPERT
TESTIMONY, MUCH OF WHICH WAS STRAINED, TO THE EFFECT THAT MEMOIRS IS A
STRUCTURAL NOVEL WITH LITERARY MERIT; THAT THE BOOK DISPLAYS A SKILL IN
CHARACTERIZATION AND A GIFT FOR COMEDY; THAT IT PLAYS A PART IN THE
HISTORY OF THE DEVELOPMENT OF THE ENGLISH NOVEL; AND THAT IT CONTAINS A
MORAL, NAMELY, THAT SEX WITH LOVE IS SUPERIOR TO SEX IN A BROTHEL.  BUT
THE FACT THAT THE TESTIMONY MAY INDICATE THIS BOOK HAS SOME MINIMAL
LITERARY VALUE DOES NOT MEAN IT IS OF ANY SOCIAL IMPORTANCE.  WE DO NOT
INTERPRET THE 'SOCIAL IMPORTANCE' TEST AS REQUIRING THAT A BOOK WHICH
APPEALS TO PRURIENT INTEREST AND IS PATENTLY OFFENSIVE MUST BE
UNQUALIFIEDLY WORTHLESS BEFORE IT CAN BE DEEMED OBSCENE."  349 MASS.,
AT 73, 206 N.E.2D, AT 406. 

THE SUPREME JUDICIAL COURT ERRED IN HOLDING THAT A BOOK NEED NOT BE
"UNQUALIFIEDLY WORTHLESS BEFORE IT CAN BE DEEMED OBSCENE."  A BOOK
CANNOT BE PROSCRIBED UNLESS IT IS FOUND TO BE UTTERLY WITHOUT REDEEMING
SOCIAL VALUE.  THIS IS SO EVEN THOUGH THE BOOK IS FOUND TO POSSESS THE
REQUISITE PRURIENT APPEAL AND TO BE PATENTLY OFFENSIVE.  EACH OF THE
THREE FEDERAL CONSTITUTIONAL CRITERIA IS TO BE APPLIED INDEPENDENTLY;
THE SOCIAL VALUE OF THE BOOK CAN NEITHER BE WEIGHED AGAINST NOR
CANCELED BY ITS PRURIENT APPEAL OR PATENT OFFENSIVENESS.  (FN7)  HENCE,
EVEN ON THE VIEW OF THE COURT BELOW THAT MEMOIRS POSSESSED ONLY A
MODICUM OF SOCIAL VALUE, ITS JUDGMENT MUST BE REVERSED AS BEING FOUNDED
ON AN ERRONEOUS INTERPRETATION OF A FEDERAL CONSTITUTIONAL STANDARD. 

                               II. 

IT DOES NOT NECESSARILY FOLLOW FROM THIS REVERSAL THAT A
DETERMINATION THAT MEMOIRS IS OBSCENE IN THE CONSTITUTIONAL SENSE WOULD
BE IMPROPER UNDER ALL CIRCUMSTANCES.  ON THE PREMISE, WHICH WE HAVE NO
OCCASION TO ASSESS, THAT MEMOIRS HAS THE REQUISITE PRURIENT APPEAL AND
IS PATENTLY OFFENSIVE, BUT HAS ONLY A MINIMUM OF SOCIAL VALUE, THE
CIRCUMSTANCES OF PRODUCTION, SALE, AND PUBLICITY ARE RELEVANT IN
DETERMINING WHETHER OR NOT THE PUBLICATION OR DISTRIBUTION OF THE BOOK
IS CONSTITUTIONALLY PROTECTED.  EVIDENCE THAT THE BOOK WAS COMMERCIALLY
EXPLOITED FOR THE SAKE OF PRURIENT APPEAL, TO THE EXCLUSION OF ALL
OTHER VALUES, MIGHT JUSTIFY THE CONCLUSION THAT THE BOOK WAS UTTERLY
WITHOUT REDEEMING SOCIAL IMPORTANCE.  IT IS NOT THAT IN SUCH A SETTING
THE SOCIAL VALUE TEST IS RELAXED SO AS TO DISPENSE WITH THE REQUIREMENT
THAT A BOOK BE UTTERLY DEVOID OF SOCIAL VALUE, BUT RATHER THAT, AS WE
ELABORATE IN GINZBURG V. UNITED STATES, POST, PP. 470-473, WHERE THE
PURVEYOR'S SOLE EMPHASIS IS ON THE SEXUALLY PROVOCATIVE ASPECTS OF HIS
PUBLICATIONS, A COURT COULD ACCEPT HIS EVALUATION AT ITS FACE VALUE. 
IN THIS PROCEEDING, HOWEVER, THE COURTS WERE ASKED TO JUDGE THE
OBSCENITY OF MEMOIRS IN THE ABSTRACT, AND THE DECLARATION OF OBSCENITY
WAS NEITHER AIDED NOR LIMITED BY A SPECIFIC SET OF CIRCUMSTANCES OF
PRODUCTION, SALE, AND PUBLICITY.  (FN8)  ALL POSSIBLE USES OF THE BOOK
MUST THEREFORE BE CONSIDERED, AND THE MERE RISK THAT THE BOOK MIGHT BE
EXPLOITED BY PANDERERS BECAUSE IT SO PERVASIVELY TREATS SEXUAL MATTERS
CANNOT ALTER THE FACT - GIVEN THE VIEW OF THE MASSACHUSETTS COURT
ATTRIBUTING TO MEMOIRS A MODICUM OF LITERARY AND HISTORICAL VALUE -
THAT THE BOOK WILL HAVE REDEEMING SOCIAL IMPORTANCE IN THE HANDS OF
THOSE WHO PUBLISH OR DISTRIBUTE IT ON THE BASIS OF THAT VALUE. 
REVERSED. 

FN1  THE TEXT OF THE STATUTE APPEARS IN THE APPENDIX. 

FN2  IN DISSENTING FROM THE SUPREME JUDICIAL COURT'S DISPOSITION IN
THIS CASE, 349 MASS.  69, 74-75, 206 N.E.2D 403, 406-407 (1965),
JUSTICE WHITTEMORE SUMMARIZED THIS TESTIMONY: 

"IN THE VIEW OF ONE OR ANOTHER OR ALL OF THE FOLLOWING VIZ., THE
CHAIRMAN OF THE ENGLISH DEPARTMENT AT WILLIAMS COLLEGE, A PROFESSOR OF
ENGLISH AT HARVARD COLLEGE, AN ASSOCIATE PROFESSOR OF ENGLISH
LITERATURE AT BOSTON UNIVERSITY, AN ASSOCIATE PROFESSOR OF ENGLISH AT
MASSACHUSETTS INSTITUTE OF TECHNOLOGY, AND AN ASSISTANT PROFESSOR OF
ENGLISH AND AMERICAN LITERATURE AT BRANDEIS UNIVERSITY, THE BOOK IS A
MINOR 'WORK OF ART' HAVING 'LITERARY MERIT' AND 'HISTORICAL VALUE' AND
CONTAINING A GOOD DEAL OF 'DELIBERATE, CALCULATED COMEDY.'  IT IS A
PIECE OF 'SOCIAL HISTORY OF INTEREST TO ANYONE WHO IS INTERESTED IN
FICTION AS A WAY OF UNDERSTANDING SOCIETY IN THE PAST.'  (FN1)  A
SAVING GRACE IS THAT ALTHOUGH MANY SCENES, IF TRANSLATED INTO THE
PRESENT DAY LANGUAGE OF 'THE REALISTIC, NATURALISTIC NOVEL, COULD BE
QUITE OFFENSIVE' THESE SCENES ARE NOT DESCRIBED IN SUCH LANGUAGE.  THE
BOOK CONTAINS NO DIRTY WORDS AND ITS LANGUAGE "FUNCTIONS  ...  TO
CREATE A DISTANCE, EVEN WHEN THE SEXUAL EXPERIENCES ARE PORTRAYED.' 
THE RESPONSE, THEREFORE, IS A LITERARY RESPONSE.  THE DESCRIPTIONS OF
DEPRAVITY ARE NOT OBSCENE BECAUSE 'THEY ARE SUBORDINATE TO AN INTEREST
WHICH IS PRIMARILY LITERARY'; FANNY'S REACTION TO THE SCENES OF
DEPRAVITY WAS 'ANGER,' 'DIGUST, HORROR, AND INDIGNATION.'  THE BOOK
'BELONGS TO THE HISTORY OF ENGLISH LITERATURE RATHER THAN THE HISTORY
OF SMUT.'  (FN2)" 

"FN1  ONE OF THE WITNESSES TESTIFIED IN PART AS FOLLOWS: 'CLELAND IS
PART OF WHAT I SHOULD CALL THIS CULTURAL BATTLE THAT IS GOING ON IN THE
18TH CENTURY, A BATTLE BETWEEN A RESTRICTED PURITAN, MORALISTIC ETHIC
THAT ATTEMPTS TO SUPPRESS FREEDOM OF THE SPIRIT, FREEDOM OF THE FLESH,
AND THIS ELEMENT IS COMPETING WITH A FREER ATTITUDE TOWARDS LIFE, A
MORE WHOLESOME ATTITUDE TOWARDS LIFE, AND THIS VERY ATTITUDE THAT IS
MANIFESTED IN FIELDING'S GREAT NOVEL "TOM JONES" IS ALSO EVIDENT IN
CLELAND'S NOVEL  ...  .  RICHARDSON'S "PAMELA" IS THE STORY OF A YOUNG
COUNTRY GIRL; HIS "CLARISSA" IS THE STORY OF A WOMAN TRAPPED IN A HOUSE
OF PROSTITUTION.  OBVIOUSLY, THEN CLELAND TAKES BOTH THESE THEMES, THE
COUNTRY GIRL, HER INITIATION INTO LIFE AND INTO EXPERIENCE, AND THE
STORY OF A WOMAN IN A HOUSE OF PROSTITUTION, AND WHAT HE SIMPLY DOES IS
TO TAKE THE SITUATION AND REVERSE THE MORAL STANDARDS.  RICHARDSON
BELIEVED THAT CHASTITY WAS THE MOST IMPORTANT THING IN THE WORLD;
CLELAND AND FIELDING OBVIOUSLY DID NOT AND THOUGHT THERE WERE MORE
IMPORTANT SIGNIFICANT MORAL VALUES.'" 

"FN2  IN THE OPINION OF THE OTHER ACADEMIC WITNESS, THE HEADMASTER OF
A PRIVATE SCHOOL, WHOSE FIELD IS ENGLISH LITERATURE, THE BOOK IS
WITHOUT LITERARY MERIT AND IS OBSCENE, IMPURE, HARD CORE PORNOGRAPHY,
AND IS PATENTLY OFFENSIVE." 

FN3  THE RECORD IN THIS CASE IS THUS SIGNIFICANTLY DIFFERENT FROM THE
RECORDS IN GINZBURG V. UNITED STATES, POST, P. 463, AND MISHKIN V. NEW
YORK, POST, P. 502.  SEE PP. 420-421, INFRA. 

FN4  SECTION 28B MAKES IT A CRIMINAL OFFENSE, INTER ALIA, TO IMPORT,
PRINT, PUBLISH, SELL, LOAN, DISTRIBUTE, BUY, PROCURE, RECEIVE, OR
POSSESS FOR THE PURPOSE OF SALE, LOAN, OR DISTRIBUTION, "A BOOK,
KNOWING IT TO BE OBSCENE."  SECTION 28H PROVIDES THAT IN ANY
PROSECUTION UNDER SEC. 28B THE DECREE OBTAINED IN A PROCEEDING AGAINST
THE BOOK "SHALL BE ADMISSIBLE IN EVIDENCE" AND FURTHER THAT "IF PRIOR
TO THE SAID OFFENCE A FINAL DECREE HAD BEEN ENTERED AGAINST THE BOOK,
THE DEFENDANT, IF THE BOOK BE OBSCENE  ...  ."  THUS A DECLARATION OF
OBSCENITY SUCH AS THAT OBTAINED IN THIS PROCEEDING IS LIKELY TO RESULT
IN THE TOTAL SUPPRESSION OF THE BOOK IN THE COMMONWEALTH. 

THE CONSTITUTIONALITY OF SEC. 28H HAS NOT BEEN CHALLENGED IN THIS
APPEAL. 

FN5  ALTHOUGH THE FINAL DECREE PROVIDES NO COERCIVE RELIEF BUT ONLY A
DECLARATION OF THE BOOK'S OBSCENITY, OUR ADJUDICATION OF THE MERITS OF
THE ISSUE TENDERED, VIZ., WHETHER THE STATE COURTS ERRED IN DECLARING
THE BOOK OBSCENE, IS NOT PREMATURE.  THERE IS NO UNCERTAINTY AS TO THE
CONTENT OF THE MATERIAL CHALLENGED, AND THE ATTORNEY GENERAL'S PETITION
COMMENCING THIS SUIT STATES THAT THE BOOK "IS BEING IMPORTED, SOLD,
LOANED, OR DISTRIBUTED IN THE COMMONWEALTH."  THE DECLARATION OF
OBSCENITY IS LIKELY TO HAVE A SERIOUS INHIBITORY EFFECT ON THE
DISTRIBUTION OF THE BOOK, AND THIS PROBABLE IMPACT IS TO NO SMALL
MEASURE DERIVED FROM POSSIBLE COLLATERAL USES OF THE DECLARATION IN
SUBSEQUENT PROSECUTIONS UNDER THE MASSACHUSETTS CRIMINAL OBSCENITY
STATUTE.  SEE N. 4, SUPRA. 

FN6  WE INFER FROM THE OPINIONS BELOW THAT THE OTHER ADJECTIVES
DESCRIBING THE PROSCRIBED BOOKS IN SECS. 28C-28H, "INDECENT" AND
"IMPURE," HAVE EITHER BEEN READ OUT OF THE STATUTE OR DEEMED SYNONYMOUS
WITH "OBSCENE." 

FN7  "MATERIAL DEALING WITH SEX IN A MANNER THAT ADVOCATES IDEAS  ...
OR THAT HAS LITERARY OR SCIENTIFIC OR ARTISTIC VALUE OR ANY OTHER FORM
OF SOCIAL IMPORTANCE, MAY NOT BE BRANDED AS OBSCENITY AND DENIED THE
CONSTITUTIONAL PROTECTION.  NOR MAY THE CONSTITUTIONAL STATUS OF THE
MATERIAL BE MADE TO TURN ON A 'WEIGHING' OF ITS SOCIAL IMPORTANCE
AGAINST ITS PRURIENT APPEAL, FOR A WORK CANNOT BE PROSCRIBED UNLESS IT
IS 'UTTERLY' WITHOUT SOCIAL IMPORTANCE.  SEE ZEITLIN V. ARNEBERGH, 59
CAL. 2D 901, 920, 383 P.2D 152, 165, 31 CAL. RPTR.  800, 813 (1963)." 
JACOBELLIS V. OHIO, 378 U.S. 184, 191 (OPINION OF BRENNAN, J.). 
FOLLOWED IN, E.G., PEOPLE V. BRUCE, 31 ILL. 2D 459, 461, 202 N.E.2D
497, 498 (1964); TRANS-LUX DISTRIBUTING CORP. V. MARYLAND BD. OF
CENSORS, 240 MD. 98, 104-105, 213 A.2D 235, 238-239 (1965).    FN8  IN
HIS DISSENTING OPINION, 349 MASS., AT 76-78, 206 N.E.2D, AT 408-409,
JUSTICE CUTTER STATED THAT, ALTHOUGH IN HIS VIEW THE BOOK WAS NOT
'OBSCENE' WITHIN THE MEANING OF ROTH, "IT COULD REASONABLY BE FOUND
THAT DISTRIBUTION OF THE BOOK TO PERSONS UNDER THE AGE OF EIGHTEEN
WOULD BE A VIOLATION OF G.L. C. 272, SEC. 28, AS TENDING TO CORRUPT THE
MORALS OF YOUTH."  (SECTION 28 MAKES IT A CRIME TO SELL TO "A PERSON
UNDER THE AGE OF EIGHTEEN YEARS A BOOK  ...  WHICH IS OBSCENE  ...  OR
MANIFESTLY TENDS TO CORRUPT THE MORALS OF YOUTH.")  HE CONCLUDED THAT
THE COURT SHOULD "LIMIT THE RELIEF GRANTED TO A DECLARATION THAT
DISTRIBUTION OF THIS BOOK TO PERSONS UNDER THE AGE OF EIGHTEEN MAY BE
FOUND TO CONSTITUTE A VIOLATION OF G.L.C. 272, SEC. 28, IF THAT SECTION
IS REASONABLY APPLIED  ...  ."  HOWEVER, THE DECREE WAS NOT SO LIMITED
AND WE INTIMATE NO VIEW CONCERNING THE CONSTITUTIONALITY OF SUCH A
LIMITED DECLARATION REGARDING MEMOIRS.  CF. JACOBELLIS V. OHIO, 378
U.S., AT 195. 

MR. JUSTICE BLACK AND MR. JUSTICE STEWART CONCUR IN THE REVERSAL FOR
THE REASONS STATED IN THEIR RESPECTIVE DISSENTING OPINIONS IN GINZBURG
V. UNITED STATES, POST, P. 476 AND P. 497, AND MISHKIN V. NEW YORK,
POST, P. 515 AND P. 518. 

                      APPENDIX TO OPINION OF MR. JUSTICE

    BRENNAN. 

                                 STATE STATUTE. 

                   MASSACHUSETTS GENERAL LAWS, CHAPTER 272. 

     *         *         *         *         * 

DISTRIBUTES, OR BUYS, PROCURES, RECEIVES, OR HAS IN HIS POSSESSION FOR
THE PURPOSE OF SALE, LOAN OR DISTRIBUTION, A BOOK, KNOWING IT TO BE
OBSCENE, INDECENT OR IMPURE, OR WHOEVER, BEING A WHOLESALE DISTRIBUTOR,
A JOBBER, OR PUBLISHER SENDS OR DELIVERS TO A RETAIL STOREKEEPER A
BOOK, PAMPHLET, MAGAZINE OR OTHER FORM OF PRINTED OR WRITTEN MATERIAL,
KNOWING IT TO BE OBSCENE, INDECENT OR IMPURE, WHICH SAID STOREKEEPER
HAD NOT PREVIOUSLY ORDERED IN WRITING, SPECIFYING THE TITLE AND
QUANTITY OF SUCH PUBLICATION HE DESIRED, SHALL BE PUNISHED BY
IMPRISONMENT IN THE STATE PRISON FOR NOT MORE THAN FIVE YEARS OR IN A
JAIL OR HOUSE OF CORRECTIONS FOR NOT MORE THAN TWO AND ONE HALF YEARS,
OR BY A FINE OF NOT LESS THAN ONE HUNDRED DOLLARS NOR MORE THAN FIVE
THOUSAND DOLLARS, OR BY BOTH SUCH FINE AND IMPRISONMENT IN JAIL OR THE
HOUSE OF CORRECTION. 

BOOK WHICH IS BEING IMPORTED, SOLD, LOANED OR DISTRIBUTED, OR IS IN THE
POSSESSION OF ANY PERSON WHO INTENDS TO IMPORT, SELL, LOAN OR
DISTRIBUTE THE SAME, IS OBSCENE, INDECENT OR IMPURE, THE ATTORNEY
GENERAL, OR ANY DISTRICT ATTORNEY WITHIN HIS DISTRICT, SHALL BRING AN
INFORMATION OR PETITION IN EQUITY IN THE SUPERIOR COURT DIRECTED
AGAINST SAID BOOK BY NAME.  UPON THE FILING OF SUCH INFORMATION OR
PETITION IN EQUITY, A JUSTICE OF THE SUPERIOR COURT SHALL, IF, UPON A
SUMMARY EXAMINATION OF THE BOOK, HE IS OF OPINION THAT THERE IS
REASONABLE CAUSE TO BELIEVE THAT SUCH BOOK IS OBSCENE, INDECENT OR
IMPURE, ISSUE AN ORDER OF NOTICE, RETURNABLE IN OR WITHIN THIRTY DAYS,
DIRECTED AGAINST SUCH BOOK BY NAME AND ADDRESSED TO ALL PERSONS
INTERESTED IN THE PUBLICATION, SALE, LOAN OR DISTRIBUTION THEREOF, TO
SHOW CAUSE WHY SAID BOOK SHOULD NOT BE JUDICIALLY DETERMINED TO BE
OBSCENE, INDECENT OR IMPURE.  NOTICE OF SUCH ORDER SHALL BE GIVEN BY
PUBLICATION ONCE EACH WEEK FOR TWO SUCCESSIVE WEEKS IN A DAILY
NEWSPAPER PUBLISHED IN THE CITY OF BOSTON AND, IF SUCH INFORMATION OR
PETITION BE FILED IN ANY COUNTY OTHER THAN SUFFOLK COUNTY, THEN BY
PUBLICATION ALSO IN A DAILY NEWSPAPER PUBLISHED IN SUCH OTHER COUNTY. 
A COPY OF SUCH ORDER OF NOTICE SHALL BE SENT BY REGISTERED MAIL TO THE
PUBLISHER OF SAID BOOK, TO THE PERSON HOLDING THE COPYRIGHTS, AND TO
THE AUTHOR, IN CASE THE NAMES OF ANY SUCH PERSONS APPEAR UPON SAID
BOOK, FOURTEEN DAYS AT LEAST BEFORE THE RETURN DAY OF SUCH ORDER OF
NOTICE.   AFTER THE ISSUANCE OF AN ORDER OF NOTICE UNDER THE PROVISIONS
OF THIS SECTION, THE COURT SHALL, ON MOTION OF THE ATTORNEY GENERAL OR
DISTRICT ATTORNEY, MAKE AN INTERLOCUTORY FINDING AND ADJUDICATION THAT
SAID BOOK IS OBSCENE, INDECENT OR IMPURE, WHICH FINDING AND
ADJUDICATION SHALL BE OF THE SAME FORCE AND EFFECT AS THE FINAL FINDING
AND ADJUDICATION PROVIDED IN SECTION TWENTY-EIGHT E OR SECTION TWENTY
EIGHT F, BUT ONLY UNTIL SUCH FINAL FINDING AND ADJUDICATION IS MADE OR
UNTIL FURTHER ORDER OF THE COURT. 

OF SAID BOOK MAY APPEAR AND FILE AN ANSWER ON OR BEFORE THE RETURN DAY
NAMED IN SAID NOTICE OR WITHIN SUCH FURTHER TIME AS THE COURT MAY
ALLOW, AND MAY CLAIM A RIGHT TO TRIAL BY JURY ON THE ISSUE WHETHER SAID
BOOK IS OBSCENE, INDECENT OR IMPURE. 

ALLOWED, THE COURT MAY AT ONCE UPON MOTION OF THE PETITIONER, OR OF ITS
OWN MOTION, NO REASON TO THE CONTRARY APPEARING, ORDER A GENERAL
DEFAULT AND IF THE COURT FINDS THAT THE BOOK IS OBSCENE, INDECENT OR
IMPURE, MAY MAKE AN ADJUDICATION AGAINST THE BOOK THAT THE SAME IS
OBSCENE, INDECENT AND IMPURE. 

SHALL BE SET DOWN FOR SPEEDY HEARING, BUT A DEFAULT AND ORDER SHALL
FIRST BE ENTERED AGAINST ALL PERSONS WHO HAVE NOT APPEARED AND
ANSWERED, IN THE MANNER PROVIDED IN SECTION TWENTY-EIGHT E. SUCH
HEARING SHALL BE CONDUCTED IN ACCORDANCE WITH THE USUAL COURSE OF
PROCEEDINGS IN EQUITY INCLUDING ALL RIGHTS OF EXCEPTION AND APPEAL.  AT
SUCH HEARING THE COURT MAY RECEIVE THE TESTIMONY OF EXPERTS AND MAY
RECEIVE EVIDENCE AS TO THE LITERARY, CULTURAL OR EDUCATIONAL CHARACTER
OF SAID BOOK AND AS TO THE MANNER AND FORM OF ITS PUBLICATION,
ADVERTISEMENT, AND DISTRIBUTION.  UPON SUCH HEARING, THE COURT MAY MAKE
AN ADJUDICATION IN THE MANNER PROVIDED IN SAID SECTION TWENTY-EIGHT E. 

PROVISIONS OF SECTION TWENTY-EIGHT C SHALL NOT BE OPEN TO OBJECTION ON
THE GROUND THAT A MERE JUDGMENT, ORDER OR DECREE IS SOUGHT THEREBY AND
THAT NO RELIEF IS OR COULD BE CLAIMED THEREUNDER ON THE ISSUE OF THE
DEFENDANT'S KNOWLEDGE AS TO THE OBSCENITY, INDECENCY OR IMPURITY OF THE
BOOK. 

INDICTMENT FOUND OR A COMPLAINT MADE FOR ANY OFFENCE COMMITTED AFTER
THE FILING OF A PROCEEDING UNDER SECTION TWENTY-EIGHT C, THE FACT OF
SUCH FILING AND THE ACTION OF THE COURT OR JURY THEREON, IF ANY, SHALL
BE ADMISSIBLE IN EVIDENCE.  IF PRIOR TO THE SAID OFFENCE A FINAL DECREE
HAD BEEN ENTERED AGAINST THE BOOK, THE DEFENDANT, IF THE BOOK BE
OBSCENE, INDECENT OR IMPURE, SHALL BE CONCLUSIVELY PRESUMED TO HAVE
KNOWN SAID BOOK TO BE OBSCENE, INDECENT OR IMPURE, OR IF SAID DECREE
HAD BEEN IN FAVOR OF THE BOOK HE SHALL BE CONCLUSIVELY PRESUMED NOT TO
HAVE KNOWN SAID BOOK TO BE OBSCENE, INDECENT OR IMPURE, OR IF NO FINAL
DECREE HAD BEEN ENTERED BUT A PROCEEDING HAD BEEN FILED PRIOR TO SAID
OFFENCE, THE DEFENDANT SHALL BE CONCLUSIVELY PRESUMED TO HAVE HAD
KNOWLEDGE OF THE CONTENTS OF SAID BOOK. 

MR. JUSTICE DOUGLAS, CONCURRING IN THE JUDGMENT. 

MEMOIRS OF A WOMAN OF PLEASURE, OR, AS IT IS OFTEN TITLED, FANNY
HILL, CONCEDEDLY IS AN EROTIC NOVEL.  IT WAS FIRST PUBLISHED IN ABOUT
1749 AND HAS ENDURED TO THIS DATE, DESPITE PERIODIC EFFORTS TO SUPPRESS
IT.  (FN1)  THE BOOK RELATES THE ADVENTURES OF A YOUNG GIRL WHO BECOMES
A PROSTITUTE IN LONDON.  AT THE END, SHE ABANDONS THAT LIFE AND MARRIES
HER FIRST LOVER, OBSERVING: 

"THUS, AT LENGTH, I GOT SNUG INTO PORT, WHERE, IN THE BOSOM OF
VIRTUE, I GATHER'D THE ONLY UNCORRUPT SWEETS:  WHERE, LOOKING BACK ON
THE COURSE OF VICE I HAD RUN, AND COMPARING ITS INFAMOUS BLANDISHMENTS
WITH THE INFINITELY SUPERIOR JOYS OF INNOCENCE, I COULD NOT HELP
PITYING, EVEN IN POINT OF TASTE, THOSE WHO, IMMERS'D IN GROSS
SENSUALITY, ARE INSENSIBLE TO THE SO DELICATE CHARMS OF VIRTUE, THAN
WHICH EVEN PLEASURE HAS NOT A GREATER FRIEND, NOR THAN VICE A GREATER
ENEMY.  THUS TEMPERANCE MAKES MEN LORDS OVER THOSE PLEASURES THAT
INTEMPERANCE ENSLAVES THEM TO:  THE ONE, PARENT OF HEALTH, VIGOUR,
FERTILITY, CHEERFULNESS, AND EVERY OTHER DESIRABLE GOOD OF LIFE; THE
OTHER, OF DISEASES, DEBILITY, BARRENNESS, SELF-LOATHING, WITH ONLY
EVERY EVIL INCIDENT TO HUMAN NATURE. 

"  ...  THE PATHS OF VICE ARE SOMETIMES STREW'D WITH ROSES, BUT THEN
THEY ARE FOR EVER INFAMOUS FOR MANY A THORN, FOR MANY A CANKERWORM:
THOSE OF VIRTUE ARE STREW'D WITH ROSES PURELY, AND THOSE ETERNALLY
UNFADING ONES."  (FN2) 

IN 1963, AN AMERICAN PUBLISHING HOUSE UNDERTOOK THE PUBLICATION OF
MEMOIRS.  THE RECORD INDICATES THAT AN UNUSUALLY LARGE NUMBER OF ORDERS
WERE PLACED BY UNIVERSITIES AND LIBRARIES; THE LIBRARY OF CONGRESS
REQUESTED THE RIGHT TO TRANSLATE THE BOOK INTO BRAILLE.  BUT THE
COMMONWEALTH OF MASSACHUSETTS INSTITUTED THE SUIT THAT ULTIMATELY FOUND
ITS WAY HERE, PRAYING THAT THE BOOK BE DECLARED OBSCENE SO THAT THE
CITIZENS OF MASSACHUSETTS MIGHT BE SPARED THE NECESSITY OF DETERMINING
FOR THEMSELVES WHETHER OR NOT TO READ IT. 

THE COURTS OF MASSACHUSETTS FOUND THE BOOK "OBSCENE" AND UPHELD ITS
SUPPRESSION.  THIS COURT REVERSES, THE PREVAILING OPINION HAVING SEIZED
UPON LANGUAGE IN THE OPINION OF THE MASSACHUSETTS SUPREME JUDICIAL
COURT IN WHICH IT IS CANDIDLY ADMITTED THAT FANNY HILL HAS AT LEAST
"SOME MINIMAL LITERARY VALUE."  I DO NOT BELIEVE THAT THE COURT SHOULD
DECIDE THIS CASE ON SO DISINGENUOUS A BASIS AS THIS.  I BASE MY VOTE TO
REVERSE ON MY VIEW THAT THE FIRST AMENDMENT DOES NOT PERMIT THE
CENSORSHIP OF EXPRESSION NOT BRIGADED WITH ILLEGAL ACTION.  BUT EVEN
APPLYING THE PREVAILING VIEW OF THE ROTH TEST, REVERSAL IS COMPELLED BY
THIS RECORD WHICH MAKES CLEAR THAT FANNY HILL IS NOT "OBSCENE."  THE
PROSECUTION MADE VIRTUALLY NO EFFORT TO PROVE THAT THIS BOOK IS
"UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE."  THE DEFENSE, ON THE
OTHER HAND, INTRODUCED CONSIDERABLE AND IMPRESSIVE TESTIMONY TO THE
EFFECT THAT THIS WAS A WORK OF LITERARY, HISTORICAL, AND SOCIAL
IMPORTANCE.  (FN3) 

WE ARE JUDGES, NOT LITERARY EXPERTS OR HISTORIANS OR PHILOSOPHERS. 
WE ARE NOT COMPETENT TO RENDER AN INDEPENDENT JUDGMENT AS TO THE WORTH
OF THIS OR ANY OTHER BOOK, EXCEPT IN OUR CAPACITY AS PRIVATE CITIZENS. 
I WOULD PAIR MY BROTHER CLARK ON FANNY HILL WITH THE UNIVERSALIST
MINISTER I QUOTE IN THE APPENDIX.  IF THERE IS TO BE CENSORSHIP, THE
WISDOM OF EXPERTS ON SUCH MATTERS AS LITERARY MERIT AND HISTORICAL
SIGNIFICANCE MUST BE EVALUATED.  ON THIS RECORD, THE COURT HAS NO
CHOICE BUT TO REVERSE THE JUDGMENT OF THE MASSACHUSETTS SUPREME
JUDICIAL COURT, IRRESPECTIVE OF WHETHER WE WOULD INCLUDE FANNY HILL IN
OUR OWN LIBRARIES. 

FOUR OF THE SEVEN JUSTICES OF THE MASSACHUSETTS SUPREME JUDICIAL
COURT CONCLUDE THAT FANNY HILL IS OBSCENE.  349 MASS. 69, 206 N.E.2D
403.  FOUR OF THE SEVEN JUDGES OF THE NEW YORK COURT OF APPEALS
CONCLUDE THAT IT IS NOT OBSCENE.  LARKIN V. PUTNAM'S SONS, 14 N.Y.2D
399, 200 N.E.2D 760.  TO OUTLAW THE BOOK ON SUCH A VOTING RECORD WOULD
BE TO LET MAJORITIES RULE WHERE MINORITIES WERE THOUGHT TO BE SUPREME. 
THE CONSTITUTION FORBIDS ABRIDGMENT OF "FREEDOM OF SPEECH, OR OF THE
PRESS."  CENSORSHIP IS THE MOST NOTORIOUS FORM OF ABRIDGMENT.  IT
SUBSTITUTES MAJORITY RULE WHERE MINORITY TASTES OR VIEWPOINTS WERE TO
BE TOLERATED. 

IT IS TO ME INEXPLICABLE HOW A BOOK THAT CONCEDEDLY HAS SOCIAL WORTH
CAN NONETHELESS BE BANNED BECAUSE OF THE MANNER IN WHICH IT IS
ADVERTISED AND SOLD.  HOWEVER FLORID ITS COVER, WHATEVER THE PITCH OF
ITS ADVERTISEMENTS, THE CONTENTS REMAIN THE SAME. 

EVERY TIME AN OBSCENITY CASE IS TO BE ARGUED HERE, MY OFFICE IS
FLOODED WITH LETTERS AND POSTAL CARDS URGING ME TO PROTECT THE
COMMUNITY OR THE NATION BY STRIKING DOWN THE PUBLICATION.  THE MESSAGES
ARE OFTEN IDENTICAL EVEN DOWN TO COMMAS AND SEMICOLONS.  THE INFERENCE
IS IRRESISTIBLE THAT THEY WERE ALL COPIED FROM A SCHOOL OR CHURCH
BLACKBOARD.  DOZENS OF POSTAL CARDS OFTEN ARE MAILED FROM THE SAME
PRECINCT.  THE DRIVES ARE INCESSANT AND THE PRESSURES ARE GREAT. 
HAPPILY WE DO NOT BOW TO THEM.  I MENTION THEM ONLY TO EMPHASIZE THE
LACK OF POPULAR UNDERSTANDING OF OUR CONSTITUTIONAL SYSTEM. 
PUBLICATIONS AND UTTERANCES WERE MADE IMMUNE FROM MAJORITARIAN CONTROL
BY THE FIRST AMENDMENT, APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH.  NO EXCEPTIONS WERE MADE, NOT EVEN FOR OBSCENITY.  THE
COURT'S CONTRARY CONCLUSION IN ROTH, WHERE OBSCENITY WAS FOUND TO BE
"OUTSIDE" THE FIRST AMENDMENT, IS WITHOUT JUSTIFICATION. 

THE EXTENT TO WHICH THE PUBLICATION OF "OBSCENITY" WAS A CRIME AT
COMMON LAW IS UNCLEAR.  IT IS GENERALLY AGREED THAT THE FIRST REPORTED
CASE INVOLVING OBSCENE CONDUCT IS THE KING V. SIR CHARLES SEDLEY. 
(FN4)  PUBLICATION OF OBSCENE LITERATURE, AT FIRST THOUGHT TO BE THE
EXCLUSIVE CONCERN OF THE ECCLESIASTICAL COURTS, (FN5) WAS NOT HELD TO
CONSTITUTE AN INDICTABLE OFFENSE UNTIL 1727.  (FN6)  A LATER CASE
INVOLVED THE PUBLICATION OF AN "OBSCENE AND IMPIOUS LIBEL" (A BAWDY
PARODY OF POPE'S "ESSAY ON MAN") BY A MEMBER OF THE HOUSE OF COMMONS. 
(FN7)  ON THE BASIS OF THESE FEW CASES, ONE CANNOT SAY THAT THE COMMON
LAW DOCTRINES WITH REGARD TO PUBLICATION OF OBSCENITY WERE ANYTHING BUT
UNCERTAIN.  "THERE IS NO DEFINITION OF THE TERM.  THERE IS NO BASIS OF
IDENTIFICATION.  THERE IS NO UNITY IN DESCRIBING WHAT IS OBSCENE
LITERATURE, OR IN PROSECUTING IT.  THERE IS LITTLE MORE THAN THE
ABILITY TO SMELL IT."  ALPERT, JUDICIAL CENSORSHIP OF OBSCENE
LITERATURE, 52 HARV. L. REV. 40, 47 (1938).    BUT EVEN IF THE COMMON
LAW HAD BEEN MORE FULLY DEVELOPED AT THE TIME OF THE ADOPTION OF THE
FIRST AMENDMENT, WE WOULD NOT BE JUSTIFIED IN ASSUMING THAT THE
AMENDMENT LEFT THE COMMON LAW UNSCATHED.  IN BRIDGES V. CALIFORNIA, 314
U.S. 252, 264, WE SAID: 

"TO ASSUME THAT ENGLISH COMMON LAW IN THIS FIELD BECAME OURS IS TO
DENY THE GENERALLY ACCEPTED HISTORICAL BELIEF THAT 'ONE OF THE OBJECTS
OF THE REVOLUTION WAS TO GET RID OF THE ENGLISH COMMON LAW ON LIBERTY
OF SPEECH AND OF THE PRESS.'  SCHOFIELD, FREEDOM OF THE PRESS IN THE
UNITED STATES, 9 PUBLICATIONS AMER.  SOCIOL.  SOC., 67, 76. 

"MORE SPECIFICALLY, IT IS TO FORGET THE ENVIRONMENT IN WHICH THE
FIRST AMENDMENT WAS RATIFIED.  IN PRESENTING THE PROPOSALS WHICH WERE
LATER EMBODIED IN THE BILL OF RIGHTS, JAMES MADISON, THE LEADER IN THE
PREPARATION OF THE FIRST AMENDMENT, SAID:  'ALTHOUGH I KNOW WHENEVER
THE GREAT RIGHTS, THE TRIAL BY JURY, FREEDOM OF THE PRESS, OR LIBERTY
OF CONSCIENCE, COME IN QUESTION IN THAT BODY (PARLIAMENT), THE INVASION
OF THEM IS RESISTED BY ABLE ADVOCATES, YET THEIR MAGNA CHARTA DOES NOT
CONTAIN ANY ONE PROVISION FOR THE SECURITY OF THOSE RIGHTS, RESPECTING
WHICH THE PEOPLE OF AMERICA ARE MOST ALARMED.  THE FREEDOM OF THE PRESS
AND RIGHTS OF CONSCIENCE, THOSE CHOICEST PRIVILEGES OF THE PEOPLE, ARE
UNGUARDED IN THE BRITISH CONSTITUTION.'" 

AND SEE GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 248-249. 

IT IS TRUE, AS THE COURT OBSERVED IN ROTH, THAT OBSCENITY LAWS
APPEARED ON THE BOOKS OF A HANDFUL OF STATES AT THE TIME THE FIRST
AMENDMENT WAS ADOPTED.  (FN8)  BUT THE FIRST AMENDMENT WAS, UNTIL THE
ADOPTION OF THE FOURTEENTH, A RESTRAINT ONLY UPON FEDERAL POWER. 
MOREOVER, THERE IS AN ABSENCE OF ANY FEDERAL CASES OR LAWS RELATIVE TO
OBSCENITY IN THE PERIOD IMMEDIATELY AFTER THE ADOPTION OF THE FIRST
AMENDMENT.  CONGRESS PASSED NO LEGISLATION RELATING TO OBSCENITY UNTIL
THE MIDDLE OF THE NINETEENTH CENTURY.  (FN9)  NEITHER REASON NOR
HISTORY WARRANTS EXCLUSION OF ANY PARTICULAR CLASS OF EXPRESSION FROM
THE PROTECTION OF THE FIRST AMENDMENT ON NOTHING MORE THAN A JUDGMENT
THAT IT IS UTTERLY WITHOUT MERIT.  WE FACED THE DIFFICULT QUESTIONS THE
FIRST AMENDMENT POSES WITH REGARD TO LIBEL IN NEW YORK TIMES V.
SULLIVAN, 376 U.S. 254, 269, WHERE WE RECOGNIZED THAT "LIBEL CAN CLAIM
NO TALISMANIC IMMUNITY FROM CONSTITUTIONAL LIMITATIONS."  WE OUGHT NOT
TO PERMIT FICTIONALIZED ASSERTIONS OF CONSTITUTIONAL HISTORY TO OBSCURE
THOSE QUESTIONS HERE.  WERE THE COURT TO UNDERTAKE THAT INQUIRY, IT
WOULD BE UNABLE, IN MY OPINION, TO ESCAPE THE CONCLUSION THAT NO
INTEREST OF SOCIETY WITH REGARD TO SUPPRESSION OF "OBSCENE" LITERATURE
COULD OVERRIDE THE FIRST AMENDMENT TO JUSTIFY CENSORSHIP. 

THE CENSOR IS ALWAYS QUICK TO JUSTIFY HIS FUNCTION IN TERMS THAT ARE
PROTECTIVE OF SOCIETY.  BUT THE FIRST AMENDMENT, WRITTEN IN TERMS THAT
ARE ABSOLUTE, DEPRIVES THE STATES OF ANY POWER TO PASS ON THE VALUE,
THE PROPRIETY, OR THE MORALITY OF A PARTICULAR EXPRESSION.  CF.
KINGSLEY INT'L PICTURES CORP. V. REGENTS, 360 U.S. 684, 688-689; JOSEPH
BURSTYN, INC. V. WILSON, 343 U.S. 495.  PERHAPS THE MOST FREQUENTLY
ASSIGNED JUSTIFICATION FOR CENSORSHIP IS THE BELIEF THAT EROTICA
PRODUCE ANTISOCIAL SEXUAL CONDUCT.  BUT THAT RELATIONSHIP HAS YET TO BE
PROVEN.  (FN10)  INDEED, IF ONE WERE TO MAKE JUDGMENTS ON THE BASIS OF
SPECULATION, ONE MIGHT GUESS THAT LITERATURE OF THE MOST PORNOGRAPHIC
SORT WOULD, IN MANY CASES, PROVIDE A SUBSTITUTE - NOT A STIMULUS - FOR
ANTISOCIAL SEXUAL CONDUCT.  SEE MURPHY, THE VALUE OF PORNOGRAPHY, 10
WAYNE L. REV. 655, 661 AND N. 9 (1964).  AS I READ THE FIRST AMENDMENT,
JUDGES CANNOT GEAR THE LITERARY DIET OF AN ENTIRE NATION TO WHATEVER
TEPID STUFF IS INCAPABLE OF TRIGGERING THE MOST DEMENTED MIND.  THE
FIRST AMENDMENT DEMANDS MORE THAN A HORRIBLE EXAMPLE OR TWO OF THE
PERPETRATOR OF A CRIME OF SEXUAL VIOLENCE, IN WHOSE POCKET IS FOUND A
PORNOGRAPHIC BOOK, BEFORE IT ALLOWS THE NATION TO BE SADDLED WITH A
REGIME OF CENSORSHIP.  (FN11) 

WHATEVER MAY BE THE REACH OF THE POWER TO REGULATE CONDUCT, I STAND
BY MY VIEW IN ROTH V. UNITED STATES, SUPRA, THAT THE FIRST AMENDMENT
LEAVES NO POWER IN GOVERNMENT OVER EXPRESSION OF IDEAS. 

FN1  MEMOIRS WAS THE SUBJECT OF WHAT IS GENERALLY REGARDED AS THE
FIRST RECORDED SUPPRESSION OF A LITERARY WORK IN THIS COUNTRY ON
GROUNDS OF OBSCENITY.  SEE COMMONWEALTH V. HOLMES, 17 MASS. 336
(1821).  THE EDITION THERE CONDEMNED DIFFERED FROM THE PRESENT VOLUME
IN THAT IT CONTAINED APPARENTLY EROTIC ILLUSTRATIONS. 

FN2  MEMOIRS, AT 213-214 (PUTNAM ED. 1963). 

FN3  THE DEFENSE DREW ITS WITNESSES FROM THE VARIOUS COLLEGES LOCATED
WITHIN THE COMMONWEALTH OF MASSACHUSETTS.  THESE INCLUDED:  FRED HOLLY
STOCKING, PROFESSOR OF ENGLISH AND CHAIRMAN OF THE ENGLISH DEPARTMENT,
WILLIAMS COLLEGE; JOHN M. BULLITT, PROFESSOR OF ENGLISH AND MASTER OF
QUINCY HOUSE, HARVARD COLLEGE; ROBERT H. SPROAT, ASSOCIATE PROFESSOR OF
ENGLISH LITERATURE, BOSTON UNIVERSITY; NORMAN N. HOLLAND, ASSOCIATE
PROFESSOR OF ENGLISH, MASSACHUSETTS INSTITUTE OF TECHNOLOGY; AND IRA
KONIGSBERG, ASSISTANT PROFESSOR OF ENGLISH AND AMERICAN LITERATURE,
BRANDEIS UNIVERSITY. 

IN ADDITION, THE DEFENSE INTRODUCED INTO EVIDENCE REVIEWS OF
IMPARTIAL LITERARY CRITICS.  THESE ARE, IN MY OPINION, OF PARTICULAR
SIGNIFICANCE SINCE THEIR PUBLICATION INDICATES THAT THE BOOK IS OF
SUFFICIENT SIGNIFICANCE AS TO WARRANT SERIOUS CRITICAL COMMENT.  THE
REVIEWS WERE BY V.S. PRITCHETT, NEW YORK REVIEW OF BOOKS, P. 1 (OCT.
31, 1963); BRIGID BROPHY, NEW STATESMAN, P. 710 (NOV. 15, 1963); AND J.
DONALD ADAMS, NEW YORK TIMES BOOK REVIEW, P. 2 (JULY 28, 1963).  AND
THE APPENDIX TO THIS OPINION CONTAINS ANOTHER CONTEMPORARY VIEW. 

FN4  THERE ARE TWO REPORTS OF THE CASE.  THE FIRST IS CAPTIONED LE
ROY V. SR. CHARLES SIDNEY, 1 SID.  168, PL. 29 (K.B. 1663); THE SECOND
IS TITLED SIR CHARLES SYDLYES CASE, 1 KEBLE 620 (K.B. 1663).  SIR
CHARLES HAD MADE A PUBLIC APPEARANCE ON A LONDON BALCONY WHILE NUDE,
INTOXICATED, AND TALKATIVE.  HE DELIVERED A LENGTHY SPEECH TO THE
ASSEMBLED CROWD, UTTERED PROFANITY, AND HURLED BOTTLES CONTAINING WHAT
WAS LATER DESCRIBED AS AN "OFFENSIVE LIQUOR" UPON THE CROWD.  THE
PROXIMATE SOURCE OF THE "OFFENSIVE LIQUOR" APPEARS TO HAVE BEEN SIR
CHARLES.  ALPERT, JUDICIAL CENSORSHIP OF OBSCENE LITERATURE, 52 HARV.
L. REV. 40-43 (1938). 

FN5  THE QUEEN V. READ, 11 MOD. 142 (Q.B. 1707). 

FN6  DOMINUS REX V. CURL, 2 STRANGE 789 (K.B. 1727).  SEE STRAUS, THE
UNSPEAKABLE CURLL (1927). 

FN7  REX V. WILKES, 4 BURR.  2527 (K.B. 1770).  THE PROSECUTION OF
WILKES WAS A HIGHLY POLITICAL ACTION, FOR WILKES WAS AN OUTSPOKEN
CRITIC OF THE GOVERNMENT.  SEE R.W. POSTGATE, THAT DEVIL WILKES
(1929).  IT HAS BEEN SUGGESTED THAT THE PROSECUTION IN THIS CASE WAS A
CONVENIENT SUBSTITUTE FOR THE LESS ATTRACTIVE CHARGE OF SEDITIOUS
LIBEL.  SEE ALPERT, SUPRA, AT 45. 

FN8  SEE 354 U.S., AT 483 AND N. 13.  FOR THE MOST PART, HOWEVER, THE
EARLY LEGISLATION WAS AIMED AT BLASPHEMY AND PROFANITY.  SEE 354 U.S.,
AT 482-483 AND N. 12.  THE FIRST REPORTED DECISION INVOLVING THE
PUBLICATION OF OBSCENE LITERATURE DOES NOT COME UNTIL 1821.  SEE
COMMONWEALTH V. HOLMES, 17 MASS. 336.  IT WAS NOT UNTIL AFTER THE CIVIL
WAR THAT STATE PROSECUTIONS OF THIS SORT BECAME COMMONPLACE.  SEE
LOCKHART & MCCLURE, LITERATURE, THE LAW OF OBSCENITY, AND THE
CONSTITUTION, 38 MINN. L. REV. 295, 324-325 (1954). 

FN9  TARIFF ACT OF 1842, C. 270, SEC. 28, 5 STAT. 566 (PROHIBITING
IMPORTATION OF OBSCENE "PRINTS").  OTHER FEDERAL LEGISLATION FOLLOWED;
THE DEVELOPMENT OF FEDERAL LAW IS TRACED IN CAIRNS, PAUL, & WISHNER,
SEX CENSORSHIP:  THE ASSUMPTIONS OF ANTI-OBSCENITY LAWS AND THE
EMPIRICAL EVIDENCE, 46 MINN. L. REV. 1009, 1010 N. 2 (1962). 

FN10  SEE CAIRNS, PAUL & WISHNER, SUPRA, 1034-1041; LOCKHART &
MCCLURE, SUPRA, AT 382-387.  AND SEE THE SUMMARY OF DR. JAHODA'S
STUDIES PREPARED BY HER FOR JUDGE FRANK, REPRINTED IN UNITED STATES V.
ROTH, 237 F.2D 796, 815-816 (CONCURRING OPINION).  THOSE WHO ARE
CONCERNED ABOUT CHILDREN AND EROTIC LITERATURE WOULD DO WELL TO
CONSIDER THE COUNSEL OF JUDGE BOK: 

"IT WILL BE ASKED WHETHER ONE WOULD CARE TO HAVE ONE'S YOUNG DAUGHTER
READ THESE BOOKS.  I SUPPOSE THAT BY THE TIME SHE IS OLD ENOUGH TO WISH
TO READ THEM SHE WILL HAVE LEARNED THE BIOLOGIC FACTS OF LIFE AND THE
WORDS THAT GO WITH THEM.  THERE IS SOMETHING SERIOUSLY WRONG AT HOME IF
THOSE FACTS HAVE NOT BEEN MET AND FACED AND SORTED BY THEN; IT IS NOT
CHILDREN SO MUCH AS PARENTS THAT SHOULD RECEIVE OUR CONCERN ABOUT
THIS.  I SHOULD PREFER THAT MY OWN THREE DAUGHTERS MEET THE FACTS OF
LIFE AND THE LITERATURE OF THE WORLD IN MY LIBRARY THAN BEHIND A
NEIGHBOR'S BARN, FOR I CAN FACE THE ADVERSARY THERE DIRECTLY.  IF THE
YOUNG LADIES ARE APPALLED BY WHAT THEY READ, THEY CAN CLOSE THE BOOK AT
THE BOTTOM OF PAGE ONE; IF THEY READ FURTHER, THEY WILL LEARN WHAT IS
IN THE WORLD AND IN ITS PEOPLE, AND NO PARENTS WHO HAVE BEEN DISCERNING
WITH THEIR CHILDREN NEED FEAR THE OUTCOME.  NOR CAN THEY HOLD IT BACK,
FOR LIFE IS A SERIES OF LITTLE BATTLES AND MINOR ISSUES, AND THE BURDEN
OF CHOICE IS ON US ALL, EVERY DAY, YOUNG AND OLD."  COMMONWEALTH V.
GORDON, 66 PA.  D.&C. 101, 110. 

FN11  IT WOULD BE A FUTILE EFFORT EVEN FOR A CENSOR TO ATTEMPT TO
REMOVE ALL THAT MIGHT POSSIBLY STIMULATE ANTISOCIAL SEXUAL CONDUCT: 

"THE MAJORITY OF INDIVIDUALS, NEEDLESS TO SAY, ARE SOMEWHERE BETWEEN
THE OVER-SCRUPULOUS EXTREMES OF EXCITEMENT AND FRIGIDITY  ...  .
WITHIN THIS VARIETY, IT IS IMPOSSIBLE TO DEFINE 'HARD-CORE'
PORNOGRAPHY, AS IF THERE WERE SOME SINGLY LEWD CONCEPT FROM WHICH ALL
PROFANE IDEAS PASSED BY IMPERCEPTIBLE DEGREES INTO THAT SEXUALITY
CALLED HOLY.  BUT THERE IS NO 'HARD-CORE.'  EVERYTHING, EVERY IDEA, IS
CAPABLE OF BEING OBSCENE IF THE PERSONALITY PERCEIVING IT SO APPREHENDS
IT. 

"IT IS FOR THIS REASON THAT BOOKS, PICTURES, CHARADES, RITUAL, THE
SPOKEN WORD, CAN AND DO LEAD DIRECTLY TO CONDUCT HARMFUL TO THE SELF
INDULGING IN IT AND TO OTHERS.  HEINRICH POMMERENKE, WHO WAS A RAPIST,
ABUSER, AND MASS SLAYER OF WOMEN IN GERMANY, WAS PROMPTED TO HIS SERIES
OF GHASTLY DEEDS BY CECIL B. DEMILLE'S THE TEN COMMANDMENTS.  DURING
THE SCENE OF THE JEWISH WOMEN DANCING ABOUT THE GOLDEN CALF, ALL THE
DOUBTS OF HIS LIFE CAME CLEAR: WOMEN WERE THE SOURCE OF THE WORLD'S
TROUBLE AND IT WAS HIS MISSION TO BOTH PUNISH THEM FOR THIS AND TO
EXECUTE THEM.  LEAVING THE THEATER, HE SLEW HIS FIRST VICTIM IN A PARK
NEARBY.  JOHN GEORGE HAIGH, THE BRITISH VAMPIRE WHO SUCKED HIS VICTIMS'
BLOOD THROUGH SODA STRAWS AND DISSOLVED THEIR DRAINED BODIES IN ACID
BATHS, FIRST HAD HIS MURDER-INCITING DREAMS AND VAMPIRE-LONGINGS FROM
WATCHING THE 'VOLUPTUOUS' PROCEDURE OF - AN ANGLICAN HIGH CHURCH
SERVICE]"  MURPHY, SUPRA, AT 668. 

                         APPENDIX TO OPINION OF MR. JUSTICE

                               DOUGLAS, CONCURRING. 

                            DR. PEALE AND FANNY HILL. 

                                  AN ADDRESS BY

        REV. JOHN R. GRAHAM, FIRST UNIVERSALIST CHURCH OF DENVER. 

                                 DECEMBER 1965. 

     *         *         *         *         * 

AT PRESENT POINT IN THE TWENTIETH CENTURY, IT SEEMS TO ME THAT THERE
ARE TWO BOOKS WHICH SYMBOLIZE THE HUMAN QUEST FOR WHAT IS MORAL.  SIN,
SEX AND SELF-CONTROL BY DR. NORMAN VINCENT PEALE, THE WELL-KNOWN
CLERGYMAN OF NEW YORK CITY, PORTRAYS THE STRUGGLE OF CONTEMPORARY
MIDDLE-CLASS SOCIETY TO ARRIVE AT A MEANS OF STABILIZING BEHAVIOR
PATTERNS.  AT THE SAME TIME, THERE IS A DISTURBING BOOK BEING SOLD IN
THE SAME STORES WITH DR. PEALE'S VOLUME.  IT IS A SEVENTEENTH CENTURY
ENGLISH NOVEL BY JOHN CLELAND AND IT IS KNOWN AS FANNY HILL:  THE
MEMOIRS OF A WOMAN OF PLEASURE. 

QUICKLY, IT MUST BE ADMITTED THAT IT APPEARS THAT THE TWO BOOKS HAVE
VERY LITTLE IN COMMON.  ONE WAS WRITTEN IN A DAY OF SCIENTIFIC AND
TECHNOLOGICAL SOPHISTICATION, WHILE THE OTHER IS OVER TWO HUNDRED YEARS
OLD.  ONE IS ACCLAIMED IN THE PULPIT, WHILE THE OTHER IS PROTESTED
BEFORE THE UNITED STATES SUPREME COURT.  SIN, SEX AND SELF-CONTROL IS
AUTHORED BY A CHRISTIAN PASTOR, WHILE FANNY HILL REPRESENTS THOUGHTS
AND EXPERIENCES OF A COMMON PROSTITUTE.  AS FAR AS THE GENERAL PUBLIC
SEEMS TO BE CONCERNED, ONE IS MORAL AND THE OTHER IS HOPELESSLY
IMMORAL.  WHILE DR. PEALE IS ATTEMPTING TO REDEEM THE SOCIETY, MOST
PEOPLE BELIEVE THAT FANNY HILL CAN ONLY SERVE AS ANOTHER INSTANCE IN AN
OVERALL TREND TOWARD AN IMMORAL SOCIAL ORDER.  MOST PARENTS WOULD BE
PLEASED TO FIND THEIR CHILDREN READING A BOOK BY DR. PEALE, BUT I AM
AFRAID THAT THE SAME PARENTS WOULD BE SORELY DISTRESSED TO DISCOVER A
COPY OF FANNY HILL AMONG THE SCHOOL BOOKS OF THEIR OFFSPRING. 

ALTHOUGH ONE WOULD NOT EXPECT TO FIND VERY MANY SIMILARITIES BETWEEN
THE THOUGHTS OF A PASTOR AND THOSE OF A PROSTITUTE, THE SUBJECT MATTER
OF THE TWO BOOKS IS, IN MANY WAYS, STRANGELY SIMILAR.  WHILE THE
CONTENTS ARE RADICALLY DIFFERENT, THE CONCERNS ARE THE SAME.  BOTH
AUTHORS DEAL WITH HUMAN EXPERIENCE.  THEY ARE CONCERNED WITH PEOPLE AND
WHAT HAPPENS TO THEM IN THE WORLD IN WHICH THEY LIVE EACH DAY.  BUT
MOST SIGNIFICANTLY OF ALL, BOTH BOOKS DEAL WITH THE AGE-OLD QUESTION OF
"WHAT IS MORAL?"  I READILY ADMIT THAT THIS CONCERN WITH THE MORAL IS
MORE OBVIOUS IN DR. PEALE'S BOOK THAN IT IS IN THE ONE BY JOHN
CLELAND.  THE SEARCH FOR THE MORAL IN FANNY HILL IS CLOTHED IN EROTIC
PASSAGES WHICH SEEM TO EQUATE MORALITY WITH DEBAUCHERY AS FAR AS THE
GENERAL PUBLIC IS CONCERNED.  AT THE SAME TIME, DR. PEALE'S BOOK IS
PUNCTUATED WITH SUCH NOBLE TERMS AS "TRUTH," LOVE," AND "HONESTY." 
THESE TWO BOOKS ARE NOT VERY IMPORTANT IN THEMSELVES.  THEY MAY OR MAY
NOT BE GREAT LITERATURE.  WHETHER THEY WILL SURVIVE THROUGH THE
CENTURIES TO COME IS A QUESTION, ALTHOUGH JOHN CLELAND HAS AN
HISTORICAL EDGE ON NORMAL VINCENT PEALE.  HOWEVER, IN A SYMBOLIC WAY
THEY DO REPRESENT THE STRUGGLE OF THE MORAL QUEST AND FOR THIS REASON
THEY ARE IMPORTANT. 

DR. PEALE BEGINS HIS BOOK WITH AN ANALYSIS OF CONTEMPORARY SOCIETY IN
TERMS OF THE MORAL DISORDER WHICH IS MORE THAN OBVIOUS TODAY.  HE
READILY ADMITS THAT THE TRADITIONAL JUDEO-CHRISTIAN STANDARDS OF
CONDUCT AND BEHAVIOR NO LONGER SERVE AS STRONG AND FORCEFUL GUIDES.  HE
WRITES:    "FOR MORE THAN FORTY YEARS, EVER SINCE MY ORDINATION, I HAD
BEEN PREACHING THAT IF A PERSON WOULD SURRENDER TO JESUS CHRIST AND
ADOPT STRONG AFFIRMATIVE ATTITUDES TOWARD LIFE HE WOULD BE ABLE TO LIVE
ABUNDANTLY AND TRIUMPHANTLY.  I WAS STILL ABSOLUTELY CONVINCED THAT
THIS WAS TRUE.  BUT I WAS ALSO BLEAKLY AWARE THAT THE WHOLE TREND IN
THE SEVENTH DECADE OF THE TWENTIETH CENTURY SEEMED TO BE AWAY FROM THE
PRINCIPLES AND PRACTICES OF RELIGION - NOT TOWARD THEM."  (PAGE 1.) 

DR. PEALE THEN REFLECTS ON THE VARIOUS CHANGES THAT HAVE TAKEN PLACE
IN OUR DAY AND SUGGESTS THAT ALTHOUGH HE IS LESS THAN ENTHUSIASTIC
ABOUT THE LOSS OF ALLEGIANCE TO RELIGION, HE IS, NEVERTHELESS, WILLING
TO RECOGNIZE THAT ONE CANNOT LIVE BY ILLUSION. 

AFTER MUCH STRUGGLE, DR. PEALE THEN SAYS THAT HE WAS ABLE TO DEVELOP
A NEW PERSPECTIVE ON THE CURRENT MORAL DILEMMA OF OUR TIMES.  WHAT
FIRST APPEARED TO BE DISASTER WAS REALLY OPPORTUNITY.  SUCH AN IDEA,
COMING FROM HIM, SHOULD NOT BE VERY SURPRISING, SINCE HE IS MORE OR
LESS DEVOTED TO THE CONCEPT OF "POSITIVE THINKING]"  HE CONCLUDES THAT
OUR SOCIETY SHOULD WELCOME THE FACT THAT THE OLD EXTERNAL AUTHORITIES
HAVE FALLEN.  HE DOES NOT BELIEVE THAT INDIVIDUALS SHOULD EVER BE
COERCED INTO CERTAIN PATTERNS OF BEHAVIOR. 

ACCORDING TO DR. PEALE, WE LIVE IN A DAY OF CHALLENGE.  OUR SOCIETY
HAS LONGED FOR A TIME WHEN INDIVIDUALS WOULD BE DISCIPLINED BY SELF
CONTROL, RATHER THAN BEING MOTIVATED BY EXTERNAL COMPUNCTION.  BRAVELY
AND FORTHRIGHTLY, HE ANNOUNCES THAT THE TIME HAS NOW COME WHEN SELF
CONTROL CAN AND MUST REPLACE EXTERNAL AUTHORITY.  HE IS QUICK TO ADD
THAT THE VALUES CONTAINED IN THE JUDEO-CHRISTIAN TRADITION AND "THE
AMERICAN WAY OF LIFE" MUST NEVER BE ABANDONED FOR THEY EMANATE FROM THE
WELLSPRINGS OF "TRUTH."  WHAT HAS PREVIOUSLY BEEN ONLY AN EXTERNAL
FORCE MUST NOW BE INTERNALIZED BY INDIVIDUALS. 

IN MANY WAYS, DR. PEALE'S ANALYSIS OF THE SOCIAL SITUATION AND THE
SOLUTION HE OFFERS FOR ASSISTING THE INDIVIDUAL TO STAND AGAINST THE
PRESSURES OF THE TIMES, COME VERY CLOSE TO THE VIEWS OF SIGMUND FREUD. 
HE FELT THAT SOCIETY COULD AND WOULD CORRUPT THE INDIVIDUAL AND, AS A
RESULT, THE ONLY SURE DEFENSE WAS A STRONG SUPER-EGO OR CONSCIENCE. 
THIS IS PRECISELY WHAT DR. PEALE RECOMMENDS. 

INTERESTINGLY ENOUGH JOHN CLELAND, IN FANNY HILL, IS CONCERNED WITH
THE SAME ISSUES.  ALTHOUGH THE QUESTION OF MORAL BEHAVIOR IS PRESENTED
MORE SUBTLY IN HIS BOOK, THE PROBLEM WITH WHICH HE DEALS IS IDENTICAL. 
THERE ARE THOSE WHO CONTEND THAT THE BOOK IS WHOLLY WITHOUT REDEEMING
SOCIAL IMPORTANCE.   THEY FEEL THAT IT APPEALS ONLY TO PRURIENT
INTERESTS. 

I FIRMLY BELIEVE THAT FANNY HILL IS A MORAL, RATHER THAN AN IMMORAL,
PIECE OF LITERATURE.  IN FACT, I WILL GO AS FAR AS TO SUGGEST THAT IT
REPRESENTS A MORE SIGNIFICANT VIEW OF MORALITY THAN IS REPRESENTED BY
DR. PEALE'S BOOK SIN, SEX AND SELF-CONTROL.  AS IS DR. PEALE, CLELAND
IS CONCERNED WITH THE NATURE OF THE SOCIETY AND THE RELATIONSHIP OF THE
INDIVIDUAL TO IT.  FANNY HILL APPEARS TO ME TO BE AN ALLEGORY.  IN THE
STORY, THE IMMORAL BECOMES THE MORAL AND THE UNETHICAL EMERGES AS THE
ETHICAL.  NOTHING IS MORE DISTRESSING THAN TO DISCOVER THAT WHAT IS
COMMONLY CONSIDERED TO BE EVIL MAY, IN REALITY, DEMONSTRATE
CHARACTERISTICS OF LOVE AND CONCERN. 

THERE IS REAL IRONY IN THE FACT THAT FANNY HILL, A RATHER NAIVE YOUNG
GIRL WHO BECOMES A PROSTITUTE, FINDS WARMTH, UNDERSTANDING AND THE
MEANING OF LOVE AND FAITHFULNESS AMID SURROUNDINGS AND SITUATIONS WHICH
THE SOCIETY, AS A WHOLE, CONDEMNS AS DEBASED AND DEPRAVED.  THE WORLD
OUTSIDE THE BROTHEL AFFIRMS ITS FAITH IN THE DIGNITY OF MAN, BUT PEOPLE
ARE OFTEN TREATED AS WORTHLESS AND UNIMPORTANT CREATURES.  HOWEVER,
WITHIN THE WORLD OF PROSTITUTION, FANNY HILL FINDS FRIENDSHIP,
UNDERSTANDING, RESPECT AND IS TREATED AS A PERSON OF VALUE.  WHEN HER
ABSENT LOVER RETURNS, SHE IS NOT A LOST GIRL OF THE GUTTER.  ONE
PERCEIVES THAT SHE IS A WHOLE AND HEALTHY PERSON WHO HAS DISCOVERED THE
ABILITY TO LOVE AND BE LOVED IN A BROTHEL. 

I THINK CLELAND IS SUGGESTING THAT ONE MUST BE CAUTIOUS ABOUT WHAT IS
CONDEMNED AND WHAT IS HELD IN HONOR.  FROM DR. PEALE'S VIEWPOINT, THE
STORY OF FANNY HILL IS A TRAGEDY BECAUSE SHE DID NOT DEMONSTRATE SELF
CONTROL.  SHE REFUSED TO INTERNALIZE THE VALUES INHERENT IN THE JUDEO
CHRISTIAN TRADITION AND THE CATALOG OF SEXUAL SCENES IN THE BOOK, FIFTY
TWO IN ALL, ARE A SYMBOL OF THE DEBASED INDIVIDUAL AND THE SOCIETY IN
WHICH HE LIVES. 

DR. PEALE AND OTHERS, WOULD BE CORRECT IN SAYING THAT FANNY HILL DID
NOT DEMONSTRATE SELF-CONTROL.   SHE DID, HOWEVER, COME TO APPRECIATE
THE VALUE OF SELF-EXPRESSION.  AT NO TIME WERE HER "CLIENTS" LOOKED
UPON AS A MEANS TO AN END.  SHE TRIED AND DID UNDERSTAND THEM AND SHE
WAS CONCERNED ABOUT THEM AS PERSONS.  WHEN HER LOVER, CHARLES, RETURNED
SHE WAS NOT FILLED WITH GUILT AND REMORSE.  SHE ACCEPTED HERSELF AS SHE
WAS AND WAS ABLE TO OFFER HIM HER LOVE AND DEVOTION. 

I HAVE A FEELING THAT MANY PEOPLE FEAR THE BOOK FANNY HILL, NOT
BECAUSE OF ITS SEXUAL SCENES, BUT BECAUSE THE AUTHOR RAISES SERIOUS
QUESTION WITH THE ISSUE OF WHAT IS MORAL AND WHAT IS IMMORAL.  HE TAKES
EXCEPTION TO THE IDEA THAT REPRESSION AND RESTRAINT CREATE MORAL
INDIVIDUALS.  HE DEVELOPS THE THOUGHT THAT SELF-EXPRESSION IS MORE
HUMAN THAN SELF-CONTROL.  AND HE DARES TO SUGGEST THAT, IN A SITUATION
WHICH SOCIETY CALLS IMMORAL AND DEBASED, A GENUINE LOVE AND RESPECT FOR
LIFE AND FOR PEOPLE, AS HUMAN BEINGS, CAN DEVELOP.  FAR FROM GLORIFYING
VICE, JOHN CLELAND POINTS AN ACCUSING FINGER AT THE INDIVIDUAL WHO IS
SO CERTAIN AS TO WHAT IT MEANS TO BE A MORAL MAN. 

THERE ARE THOSE WHO WILL QUICKLY SAY THAT THIS "MESSAGE" WILL BE
MISSED BY THE AVERAGE PERSON WHO READS FANNY HILL.  BUT THIS IS
PRECISELY THE POINT.  WE BECOME SO ACCUSTOMED TO PRE-JUDGING WHAT IS
ETHICAL AND WHAT IS IMMORAL THAT WE ARE UNABLE TO RECOGNIZE THAT WHAT
WE ACCEPT AS GOOD MAY BE NOTHING LESS THAN EVIL BECAUSE IT HARMS
PEOPLE. 

I KNOW OF NO BOOK WHICH MORE BEAUTIFULLY DESCRIBES MEANINGFUL
RELATIONSHIPS BETWEEN A MAN AND A WOMAN THAN DOES FANNY HILL.  IN MANY
MARRIAGES, MEN USE A WOMAN FOR SEXUAL GRATIFICATION AND OTHERWISE, AS
WELL AS VICE VERSA.  BUT THIS IS NOT THE CASE IN THE STORY OF FANNY
HILL.  THE POINT IS SIMPLY THAT THERE ARE MANY, MANY WAYS IN WHICH WE
HURT, INJURE AND DEGRADE PEOPLE THAT ARE FAR WORSE THAN EITHER BEING OR
VISITING A PROSTITUTE.  WE DO THIS ALL IN THE NAME OF MORALITY. 

AT THE SAME TIME THAT DR. PEALE IS CONCERNED WITH SICK PEOPLE, JOHN
CLELAND ATTEMPTS TO DESCRIBE HEALTHY ONES.  FANNY HILL IS A MORE MODERN
AND CERTAINLY MORE VALUABLE BOOK THAN SIN, SEX AND SELF-CONTROL BECAUSE
THE AUTHOR DOES NOT TELL US HOW TO BEHAVE, BUT ATTEMPTS TO HELP US
UNDERSTAND OURSELVES AND THE NATURE OF LOVE AND UNDERSTANDING IN BEING
RELATED TO OTHER PERSONS.  DR. PEALE'S WRITING EMPHASIZES THE MOST
USEFUL COMMODITIES AVAILABLE TO MAN - SELF-CENTEREDNESS AND SELF
CONTROL.  JOHN CLELAND SUGGESTS THAT SELF-UNDERSTANDING AND SELF
EXPRESSION MAY NOT BE AS POPULAR, BUT THEY ARE MORE HUMANE. 

THE "PEALE APPROACH" TO LIFE BREEDS CONTENTMENT, FOR IT SUGGESTS THAT
EACH ONE OF US CAN BE CERTAIN AS TO WHAT IS GOOD AND TRUE.  STANDARDS
FOR THINKING AND BEHAVIOR ARE AVAILABLE AND ALL WE NEED TO DO IS
APPROPRIATE THEM FOR OUR USE.  IN A DAY WHEN LIFE IS MARKED BY CHAOS
AND CONFUSION, THIS VIEWPOINT OFFERS MUCH IN THE WAY OF COMFORT AND
SATISFACTION.  THERE IS ONLY ONE TROUBLE WITH IT, HOWEVER, AND THAT IS
THAT IT RESULTS IN CONFORMITY, RIGID BEHAVIOR AND A LACK OF
UNDERSTANDING.  IT RESULTS IN PERSONALITY CONFIGURATIONS THAT ARE
MARKED WITH AN INTENSE INTEREST IN PROPOSITIONS ABOUT TRUTH AND RIGHT
BUT, AT THE SAME TIME, BUILD A WALL AGAINST PEOPLE.  SUCH AN ATTITUDE
CREATES CERTAINTY, BUT THERE IS LITTLE WARMTH.  THE IDEA DEVELOPS THAT
THERE ARE "MY KIND OF PEOPLE" AND THEY ARE "RIGHT."  IT FORCES US TO
DEGRADE, DISMISS AND ULTIMATELY ATTEMPT TO DESTROY ANYONE WHO DOES NOT
AGREE WITH US. 

TO BE ALIVE AND SENSITIVE TO LIFE MEANS THAT WE HAVE TO CHOOSE WHAT
WE WANT.  THERE IS NO POSSIBLE WAY FOR A PERSON TO BE A SLAVE AND FREE
AT THE SAME TIME.  SELF-CONTROL AND SELF-EXPRESSION ARE AT OPPOSITE
ENDS OF THE CONTINUUM.  AS MUCH AS SOME PERSONS WOULD LIKE TO HAVE
BOTH, IT IS NECESSARY TO MAKE A CHOICE, SINCE RESTRAINT AND OPENNESS
ARE CONTRADICTORY QUALITIES.  TO INTERNALIZE EXTERNAL VALUES DENIES THE
POSSIBILITY OF SELF-EXPRESSION.  WE MUST DECIDE WHAT WE WANT, WHEN IT
COMES TO CONFORMITY AND CREATIVITY.  IF WE WANT PEOPLE TO BEHAVE IN A
STRUCTURED AND PREDICTABLE MANNER, THEN THE IDEAL OF CREATIVITY CANNOT
HAVE MEANING. 

     *       *         *         *         * 

LONG AGO PLATO SAID, "WHAT IS HONORED IN A COUNTRY WILL BE CULTIVATED
THERE."  MORE AND MORE, WE REWARD PEOPLE FOR THINKING ALIKE AND AS A
RESULT, WE BECOME FRIGHTENED, BEYOND BELIEF, OF THOSE WHO TAKE
EXCEPTION TO THE CURRENT CONSENSUS.  IF OUR SOCIETY COLLAPSES, IT WILL
NOT BE BECAUSE PEOPLE READ A BOOK SUCH AS FANNY HILL.  IT WILL FALL,
BECAUSE WE WILL HAVE REFUSED TO UNDERSTAND IT. DECADENCE, IN A NATION
OR AN INDIVIDUAL, ARISES NOT BECAUSE THERE IS A LACK OF ABILITY TO
DISTINGUISH BETWEEN MORALITY AND IMMORALITY, BUT BECAUSE THE
OPPORTUNITY FOR SELF-EXPRESSION HAS BEEN SO CONTROLLED OR STRANGLED
THAT THE SOCIETY OR THE PERSON BECOMES A ROBOT. 

THE ISSUE WHICH A DR. PEALE WILL NEVER UNDERSTAND, BECAUSE HE IS A
VICTIM OF IT HIMSELF AND WHICH JOHN CLELAND DESCRIBES WITH BRILLIANT
CLARITY AND SENSITIVE PERSUASION IS THAT UNTIL WE LEARN TO RESPECT
OURSELVES ENOUGH THAT WE LEAVE EACH OTHER ALONE, WE CANNOT DISCOVER THE
MEANING OF MORALITY. 

DR. PEALE AND FANNY HILL OFFER THE TWO BASIC CHOICES OPEN TO MAN. 
MAN IS FREE TO CHOOSE AN AUTOCENTRIC EXISTENCE WHICH IS MARKED BY
FREEDOM FROM AMBIGUITY AND RESPONSIBILITY.  AUTOCENTRICITY PRESUPPOSES
A "CLOSED WORLD" WHERE LIFE IS PREDETERMINED AND ANIMAL-LIKE.  IN
CONTRAST TO THIS VIEW, THERE IS THE ALLOCENTRIC OUTLOOK WHICH IS MARKED
BY AN "OPEN ENCOUNTER OF THE TOTAL PERSON WITH THE WORLD."  GROWTH,
SPONTANEITY AND EXPRESSION ARE THE GOALS OF SUCH AN EXISTENCE. 

DR. PEALE EPITOMIZES THE AUTOCENTRIC APPROACH.  HE OFFERS "WARM
BLANKETS" AND COMFORTABLE "COCOONS" FOR THOSE WHO WANT TO LOSE THEIR
HUMANITY.  ON THE OTHER HAND, FANNY HILL REPRESENTS THE ALLOCENTRIC
VIEWPOINT WHICH POSITS THE POSSIBILITY FOR MAN TO RAISE HIS SIGHTS,
STRETCH HIS IMAGINATION, CULTIVATE HIS SENSITIVENESS AS WELL AS DEEPEN
AND BROADEN HIS PERSPECTIVES.  IN DISCUSSING THE AUTOCENTRIC IDEA,
FLOYD W. MATSON WRITES: 

"HUMAN BEINGS CONDITIONED TO APATHY AND AFFLUENCE MAY WELL PREFER
THIS REGRESSIVE PATH OF LEAST RESISTANCE, WITH ITS PROMISE OF ESCAPE
FROM FREEDOM AND AN END TO STRIVING.  BUT WE KNOW AT LEAST THAT IT IS
OPEN TO THEM TO CHOOSE OTHERWISE:  IN A WORD, TO CHOOSE THEMSELVES." 
(THE BROKEN IMAGE, PAGE 193.) 

IN A DAY WHEN PEOPLE ARE OVERLY SENSITIVE IN DRAWING LINES BETWEEN
THE GOOD AND THE BAD, THE RIGHT AND THE WRONG, AS WELL AS THE TRUE AND
THE FALSE, IT SEEMS TO ME THAT THERE IS GREAT IRONY IN THE AVAILABILITY
OF A BOOK SUCH AS FANNY HILL.  PROSTITUTION MAY BE THE OLDEST
PROFESSION IN THE WORLD, BUT WE ARE EVER FACED WITH A QUESTION WHICH IS
BECOMING MORE AND MORE DISTURBING:  "WHAT DOES A PROSTITUTE LOOK
LIKE?" 

MR. JUSTICE CLARK, DISSENTING. 

IT IS WITH REGRET THAT I WRITE THIS DISSENTING OPINION.  HOWEVER, THE
PUBLIC SHOULD KNOW OF THE CONTINUOUS FLOW OF PORNOGRAPHIC MATERIAL
REACHING THIS COURT AND THE INCREASING PROBLEM STATES HAVE IN
CONTROLLING IT.  MEMOIRS OF A WOMAN OF PLEASURE, THE BOOK INVOLVED
HERE, IS TYPICAL.  I HAVE "STOMACHED" PAST CASES FOR ALMOST 10 YEARS
WITHOUT MUCH OUTCRY.  THOUGH I AM NOT KNOWN TO BE A PURIST - OR A
SHRINKING VIOLET - THIS BOOK IS TOO MUCH EVEN FOR ME.  IT IS IMPORTANT
THAT THE COURT HAS REFUSED TO DECLARE IT OBSCENE AND THUS AFFORDS IT
FURTHER CIRCULATION.  IN ORDER TO GIVE MY REMARKS THE PROPER SETTING I
HAVE BEEN OBLIGED TO PORTRAY THE BOOK'S CONTENTS, WHICH CAUSES ME
EMBARRASSMENT.  HOWEVER, QUOTATIONS FROM TYPICAL EPISODES WOULD SO
DEBASE OUR REPORTS THAT I WILL NOT FOLLOW THAT COURSE. 

                                        I. 

LET ME FIRST PINPOINT THE EFFECT OF TODAY'S HOLDING IN THE OBSCENITY
FIELD.  WHILE THERE IS NO MAJORITY OPINION IN THIS CASE, THERE ARE
THREE JUSTICES WHO IMPORT A NEW TEST INTO THAT LAID DOWN IN ROTH V.
UNITED STATES, 354 U.S. 476 (1957), NAMELY, THAT "A BOOK CANNOT BE
PROSCRIBED UNLESS IT IS FOUND TO BE UTTERLY WITHOUT REDEEMING SOCIAL
VALUE."  I AGREE WITH MY BROTHER WHITE THAT SUCH A CONDITION REJECTS
THE BASIC HOLDING OF ROTH AND GIVES THE SMUT ARTIST FREE REIN TO CARRY
ON HIS DIRTY BUSINESS.  MY VOTE IN THAT CASE - WHICH WAS THE DECIDING
ONE FOR THE MAJORITY OPINION - WAS CAST SOLELY BECAUSE THE COURT
DECLARED THE TEST OF OBSCENITY TO BE:  "WHETHER TO THE AVERAGE PERSON,
APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME OF THE
MATERIAL TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST."  I UNDERSTOOD
THAT TEST TO INCLUDE ONLY TWO CONSTITUTIONAL REQUIREMENTS:  (1) THE
BOOK MUST BE JUDGED AS A WHOLE, NOT BY ITS PARTS; AND (2) IT MUST BE
JUDGED IN TERMS OF ITS APPEAL TO THE PRURIENT INTEREST OF THE AVERAGE
PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS.  (FN1)  INDEED,
OBSCENITY WAS DENOTED IN ROTH AS HAVING "SUCH SLIGHT SOCIAL VALUE AS A
STEP TO TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED  ...  IS CLEARLY
OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND MORALITY  ...  ."  AT
485 (QUOTING CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572 (1942)). 
MOREOVER, IN NO SUBSEQUENT DECISION OF THIS COURT HAS ANY "UTTERLY
WITHOUT REDEEMING SOCIAL VALUE" TEST BEEN SUGGESTED, MUCH LESS
EXPOUNDED.  MY BROTHER HARLAN IN MANUAL ENTERPRISES, INC. V. DAY, 370
U.S. 478 (1962), MADE NO REFERENCE WHATEVER TO SUCH A REQUIREMENT IN
ROTH.  RATHER HE INTERPRETED ROTH AS INCLUDING A TEST OF "PATENT
OFFENSIVENESS" BESIDES "PRURIENT APPEAL."  NOR DID MY BROTHER BRENNAN
IN HIS CONCURRING OPINION IN MANUAL ENTERPRISES MENTION ANY "UTTERLY
WITHOUT REDEEMING SOCIAL VALUE" TEST.  THE FIRST REFERENCE TO SUCH A
TEST WAS MADE BY MY BROTHER BRENNAN IN JACOBELLIS V. OHIO, 378 U.S.
184, 191 (1964), SEVEN YEARS AFTER ROTH.  IN AN OPINION JOINED ONLY BY
JUSTICE GOLDBERG, HE THERE WROTE:  "RECOGNIZING THAT THE TEST FOR
OBSCENITY ENUNCIATED IN ROTH  ...  IS NOT PERFECT, WE THINK ANY
SUBSTITUTE WOULD RAISE EQUALLY DIFFICULT PROBLEMS, AND WE THEREFORE
ADHERE TO THAT STANDARD."  NEVERTHELESS, HE PROCEEDED TO ADD: 

"WE WOULD REITERATE, HOWEVER, OUR RECOGNITION IN ROTH THAT OBSCENITY
IS EXCLUDED FROM THE CONSTITUTIONAL PROTECTION ONLY BECAUSE IT IS
'UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE,'  ...  ." 

THIS LANGUAGE WAS THEN REPEATED IN THE CONVERSE TO ANNOUNCE THIS NON
SEQUITUR: 

"IT FOLLOWS THAT MATERIAL DEALING WITH SEX IN A MANNER THAT ADVOCATES
IDEAS  ...  OR THAT HAS LITERARY OR SCIENTIFIC OR ARTISTIC VALUE OR ANY
OTHER FORM OF SOCIAL IMPORTANCE, MAY NOT BE BRANDED AS OBSCENITY AND
DENIED THE CONSTITUTIONAL PROTECTION."  AT 191. 

SIGNIFICANTLY NO OPINION IN JACOBELLIS, OTHER THAN THAT OF MY BROTHER
BRENNAN, MENTIONED THE "UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE"
TEST WHCH HE THERE INTRODUCED INTO OUR MANY AND VARIED PREVIOUS
OPINIONS IN OBSCENITY CASES.  INDEED, RATHER THAN RECOGNIZING THE
"UTTERLY WITHOUT SOCIAL IMPORTANCE" TEST, THE CHIEF JUSTICE IN HIS
DISSENT IN JACOBELLIS, WHICH I JOINED, SPECIFICALLY STATED: 

"IN LIGHT OF THE FOREGOING, I WOULD REITERATE MY ACCEPTANCE OF THE
RULE OF THE ROTH CASE: MATERIAL IS OBSCENE AND NOT CONSTITUTIONALLY
PROTECTED AGAINST REGULATION AND PROSCRIPTION IF 'TO THE AVERAGE
PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME
OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST.'"  AT
202. 

THE CHIEF JUSTICE AND I FURTHER ASSERTED THAT THE ENFORCEMENT OF THIS
RULE SHOULD BE COMMITTED TO THE STATE AND FEDERAL COURTS WHOSE
JUDGMENTS MADE PURSUANT TO THE ROTH RULE WE WOULD ACCEPT, LIMITING OUR
REVIEW TO A CONSIDERATION OF WHETHER THERE IS "SUFFICIENT EVIDENCE" IN
THE RECORD TO SUPPORT A FINDING OF OBSCENITY.  AT 202. 

  II. 

THREE MEMBERS OF THE MAJORITY HOLD THAT REVERSAL HERE IS NECESSARY
SOLELY BECAUSE THEIR NOVEL "UTTERLY WITHOUT REDEEMING SOCIAL VALUE"
TEST WAS NOT PROPERLY INTERPRETED OR APPLIED BY THE SUPREME JUDICIAL
COURT OF MASSACHUSETTS.  MASSACHUSETTS NOW HAS TO RETRY THE CASE
ALTHOUGH THE "FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR FINAL
DECREE" OF THE TRIAL COURT SPECIFICALLY HELD THAT "THIS BOOK IS
'UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE' IN THE FIELDS OF ART,
LITERATURE, SCIENCE, NEWS OR IDEAS OF ANY SOCIAL IMPORTANCE AND THAT IT
IS OBSCENE, INDECENT AND IMPURE."  I QUOTE PORTIONS OF THE FINDINGS: 

"OPINIONS OF EXPERTS ARE ADMITTED IN EVIDENCE TO AID THIS COURT IN
ITS UNDERSTANDING AND COMPREHENSION OF THE FACTS, BUT, OF COURSE, AN
EXPERT CANNOT USURP THE FUNCTION OF THE COURT.  HIGHLY ARTIFICIAL,
STYLISTIC WRITING AND AN ABUNDANCE OF METAPHORICAL DESCRIPTIONS ARE
CONTAINED IN THE BOOK BUT THE CONCLUSIONS OF SOME EXPERTS WERE PRETTY
WELL STRAINED IN ATTEMPTING TO JUSTIFY ITS CLAIMED LITERARY VALUE:
SUCH AS THE BOOK PREACHED A MORAL THAT SEX WITH LOVE IS BETTER THAN SEX
WITHOUT LOVE, WHEN FANNY'S DESCRIPTION OF HER SEXUAL ACTS, PARTICULARLY
WITH THE YOUNG BOY SHE SEDUCED, IN FANNY'S JUDGMENT AT LEAST, WAS TO
THE CONTRARY.  CAREFUL REVIEW OF ALL THE EXPERT TESTIMONY HAS BEEN
MADE, BUT, THE BEST EVIDENCE OF ALL, IS THE BOOK ITSELF AND IT PLAINLY
HAS NO VALUE BECAUSE OF IDEAS, NEWS OR ARTISTIC, LITERARY OR SCIENTIFIC
ATTRIBUTES  ...  .  NOR DOES IT HAVE ANY OTHER MERIT.  'THIS COURT WILL
NOT ADOPT A RULE OF LAW WHICH STATES OBSCENITY IS SUPPRESSIBLE BUT WELL
WRITTEN OBSCENITY IS NOT.'  MR. JUSTICE SCILEPPI IN PEOPLE V. FRITCH,
13 N.Y.2D 119."  FINDING 20. 

NONE OF THESE FINDINGS OF THE TRIAL COURT WERE OVERTURNED ON APPEAL,
ALTHOUGH THE SUPREME JUDICIAL COURT OF MASSACHUSETTS OBSERVED IN
ADDITION THAT "THE FACT THAT THE TESTIMONY MAY INDICATE THIS BOOK HAS
SOME MINIMAL LITERARY VALUE DOES NOT MEAN IT IS OF ANY SOCIAL
IMPORTANCE.  WE DO NOT INTERPRET THE 'SOCIAL IMPORTANCE' TEST AS
REQUIRING THAT A BOOK WHICH APPEALS TO PRURIENT INTEREST AND IS
PATENTLY OFFENSIVE MUST BE UNQUALIFIEDLY WORTHLESS BEFORE IT CAN BE
DEEMED OBSCENE."  MY BROTHER BRENNAN REVERSES ON THE BASIS OF THIS
CASUAL STATEMENT, DESPITE THE SPECIFIC FINDINGS OF THE TRIAL COURT. 
WHY, IF THE STATEMENT IS ERRONEOUS, BROTHER BRENNAN DOES NOT AFFIRM THE
HOLDING OF THE TRIAL COURT WHICH BEYOND QUESTION IS CORRECT, ONE CANNOT
TELL.  THIS COURSE HAS OFTEN FOLLOWED IN OTHER CASES. 

IN MY VIEW EVIDENCE OF SOCIAL IMPORTANCE IS RELEVANT TO THE
DETERMINATION OF THE ULTIMATE QUESTION OF OBSCENITY.  BUT SOCIAL
IMPORTANCE DOES NOT CONSTITUTE A SEPARATE AND DISTINCT CONSTITUTIONAL
TEST.  SUCH EVIDENCE MUST BE CONSIDERED TOGETHER WITH EVIDENCE THAT THE
MATERIAL IN QUESTION APPEALS TO PRURIENT INTERST AND IS PATENTLY
OFFENSIVE.  ACCORDINGLY, WE MUST FIRST TURN TO THE BOOK HERE UNDER
ATTACK.  I REPEAT THAT I REGRET HAVING TO DEPICT THE SORDID EPISODES OF
THIS BOOK. 

      III. 

MEMOIRS IS NOTHING MORE THAN A SERIES OF MINUTELY AND VIVIDLY
DESCRIBED SEXUAL EPISODES.  THE BOOK STARTS WITH FANNY HILL, A YOUNG 15
YEAR-OLD GIRL, ARRIVING IN LONDON TO SEEK HOUSEHOLD WORK.  SHE GOES TO
AN EMPLOYMENT OFFICE WHERE THROUGH HAPPENSTANCE SHE MEETS THE MISTRESS
OF A BAWDY HOUSE.  THIS TAKES 10 PAGES.  THE REMAINING 200 PAGES OF THE
BOOK DETAIL HER INITIATION INTO VARIOUS SEXUAL EXPERIENCES, FROM A
LESBIAN ENCOUNTER WITH A SISTER PROSTITUTE TO ALL SORTS AND TYPES OF
SEXUAL DEBAUCHERY IN BAWDY HOUSES AND AS THE MISTRESS OF A VARIETY OF
MEN.  THIS IS PRESENTED TO THE READER THROUGH AN UNINTERRUPTED
SUCCESSION OF DESCRIPTIONS BY FANNY, EITHER AS AN OBSERVER OR
PARTICIPANT, OF SEXUAL ADVENTURES SO VILE THAT ONE OF THE MALE EXPERT
WITNESSES IN THE CASE WAS HESISTANT TO REPEAT ANY ONE OF THEM IN THE
COURTROOM. 

THESE SCENES RUN THE GAMUT OF POSSIBLE SEXUAL EXPERIENCE SUCH AS
LESBIANISM, FEMALE MASTURBATION, HOMOSEXUALITY BETWEEN YOUNG BOYS, THE
DESTRUCTION OF A MAIDENHEAD WITH CONSEQUENT GORY DESCRIPTIONS, THE
SEDUCTION OF A YOUNG VIRGIN BOY, THE FLAGELLATION OF MALE BY FEMALE,
AND VICE VERSA, FOLLOWED BY FERVID SEXUAL ENGAGEMENT, AND OTHER
ABHORRENT ACTS, INCLUDING OVER TWO DOZEN SEPARATE BIZARRE DESCRIPTIONS
OF DIFFERENT SEXUAL INTERCOURSES BETWEEN MALE AND FEMALE CHARACTERS. 
IN ONE SEQUENCE FOUR GIRLS IN A BAWDY HOUSE ARE REQUIRED IN THE
PRESENCE OF ONE ANOTHER TO RELATE THE LURID DETAILS OF THEIR LOSS OF
VIRGINITY AND THEIR GLORIFICATION OF IT.  THIS IS FOLLOWED THE SAME
EVENING BY "PUBLICK TRIALS" IN WHICH EACH OF THE FOUR GIRLS ENGAGES IN
SEXUAL INTERCOURSE WITH A DIFFERENT MAN WHILE THE OTHERS WITNESS, WITH
FANNY GIVING A DETAILED DESCRIPTION OF THE MOVEMENT AND REACTION OF
EACH COUPLE. 

IN EACH OF THE SEXUAL SCENES THE EXPOSED BODIES OF THE PARTICIPANTS
ARE DESCRIBED IN MINUTE AND INDIVIDUAL DETAIL.  THE PUBIC HAIR IS OFTEN
USED FOR A BACKGROUND TO THE MOST VIVID AND PRECISE DESCRIPTIONS OF THE
RESPONSE, CONDITION, SIZE, SHAPE, AND COLOR OF THE SEXUAL ORGANS
BEFORE, DURING AND AFTER ORGASMS.  THERE ARE SOME SHORT TRANSITORY
PASSAGES BETWEEN THE VARIOUS SEXUAL EPISODES, BUT FOR THE MOST PART
THEY ONLY SET THE SCENE AND IDENTIFY THE PARTICIPANTS FOR THE NEXT
ORGY, OR MAKE SMUTTY REFERENCE AND COMPARISON TO PAST EPISODES. 

THERE CAN BE NO DOUBT THAT THE WHOLE PURPOSE OF THE BOOK IS TO AROUSE
THE PRURIENT INTEREST.  LIKEWISE THE REPETITION OF SEXUAL EPISODE AFTER
EPISODE AND THE CANDOR WITH WHICH THEY ARE DESCRIBED RENDERS THE BOOK
"PATENTLY OFFENSIVE."  THESE FACTS WEIGH HEAVILY IN ANY APPRAISAL OF
THE BOOK'S CLAIMS TO "REDEEMING SOCIAL IMPORTANCE." 

LET US NOW TURN TO EVIDENCE OF THE BOOK'S ALLEGED SOCIAL VALUE. 
WHILE UNFORTUNATELY THE STATE OFFERED LITTLE TESTIMONY, (FN2) THE
DEFENSE CALLED SEVERAL EXPERTS TO ATTEST THAT THE BOOK HAS LITERARY
MERIT AND HISTORICAL VALUE.  A CAREFUL READING OF TESTIMONY, HOWEVER,
REVEALS THAT IT HAS NO SUBSTANCE.  FOR EXAMPLE, THE FIRST WITNESS
TESTIFIED: 

"I THINK IT IS A WORK OF ART  ...  IT ASKS FOR AND RECEIVES A
LITERARY RESPONSE  ...  PRESENTED IN AN ORDERLY AND ORGANIZED FASHION,
WITH A FICTIONAL CENTRAL CHARACTER, AND WITH A LITERARY STYLE  ...  I
THINK THE CENTRAL CHARACTER IS  ...  WHAT I CALL AN INTELLECTUAL  ...
SOMEONE WHO IS EXTREMELY CURIOUS ABOUT LIFE AND WHO SEEKS  ...  TO
RECORD WITH ACCURACY THE DETAILS OF EXTERNAL WORLD, PHYSICAL
SENSATIONS, PSYCHOLOGICAL RESPONSES  ...  AN EMPIRICIST  ...  .  I FIND
THAT THIS TELLS ME THINGS  ...  ABOUT THE 18TH CENTURY THAT I MIGHT NOT
OTHERWISE KNOW." 

IF A BOOK OF ART IS ONE THAT ASKS FOR AND RECEIVES A LITERARY
RESPONSE, MEMOIRS IS NO WORK OF ART.  THE SOLE RESPONSE EVOKED BY THE
BOOK IS SENSUAL.  NOR DOES THE ORDERLY PRESENTATION OF MEMOIRS MAKE A
DIFFERENCE; IT PRESENTS NOTHING BUT LASCIVIOUS SCENES ORGANIZED SOLELY
TO AROUSE PRURIENT INTEREST AND PRODUCE SUSTAINED EROTIC TENSION. 
(FN3)  CERTAINLY THE BOOK'S BAROQUE STYLE CANNOT VITIATE THE
DETERMINATION OF OBSCENITY.  FROM A LEGAL STANDPOINT, WE MUST REMEMBER
THAT OBSCENITY IS NO LESS OBSCENE THOUGH IT BE EXPRESSED IN "ELABORATE
LANGUAGE."  INDEED, THE MORE METICULOUS ITS PRESENTATION, THE MORE IT
APPEALS TO THE PRURIENT INTEREST.  TO SAY THAT FANNY IS AN
"INTELLECTUAL" IS AN INSULT TO THOSE WHO TRAVEL UNDER THAT TAG.  SHE
WAS NOTHING BUT A HARLOT - A SENSUALIST - EXPLOITING HER SEXUAL
ATTRACTIONS WHICH SHE SOLD FOR FUN, FOR MONEY, FOR LODGING AND KEEP,
FOR AN INHERITANCE, AND FINALLY FOR A HUSBAND.  IF SHE WAS CURIOUS
ABOUT LIFE, HER CURIOSITY EXTENDED ONLY TO THE PURSUIT OF SEXUAL
DELIGHT WHEREVER SHE FOUND IT.  THE BOOK DESCRIBES NOTHING IN THE
"EXTERNAL WORLD" EXCEPT BAWDY HOUSES AND DEBAUCHERIES.  AS AN
EMPIRICIST, FANNY CONFINES HER OBSERVATIONS AND "EXPERIMENTS" TO SEX,
WITH PRIMARY ATTENTION TO DEPRAVED, LEWD, AND DEVIANT PRACTICES. 

OTHER EXPERTS PRODUCED BY THE DEFENSE TESTIFIED THAT THE BOOK
EMPHASIZES THE PROFOUND "IDEA THAT A SENSUAL PASSION IS ONLY TRULY
EXPERIENCED WHEN IT IS ASSOCIATED WITH THE EMOTION OF LOVE" AND THAT
THE SEXUAL RELATIONSHIP "CAN BE A WHOLESOME, HEALTHY, EXPERIENCE
ITSELF," WHEREAS IN CERTAIN MODERN NOVELS "THE RELATIONSHIP BETWEEN THE
SEXES IS SEEN AS ANOTHER MANIFESTATION OF MODERN DECADENCE, INSTERILITY
OR PERVERSION."  IN MY VIEW THIS PROVES NOTHING AS TO SOCIAL VALUE. 
THE STATE COURT PROPERLY GAVE SUCH TESTIMONY NO PROBATIVE WEIGHT.  A
REVIEW OFFERED BY THE DEFENSE NOTED THAT "WHERE 'PORNOGRAPHY' DOES NOT
BRUTALIZE, IT IDEALIZES.  THE BOOK IS, IN THIS SENSE, AN EROTIC FANTASY
- AND A MALE FANTASY, AT THAT, PUT INTO THE MIND OF A WOMAN.  THE MALE
ORGAN IS PHENOMENAL TO THE POINT OF ABSURDITY."  FINALLY, IT SAW THE
BOOK AS "A MINOR FANTASY, DELUDING AS A GUIDE TO CONDUCT, BUT
RESPECTFUL OF OUR DELIGHT IN THE BODY  ...  AN INTERESTING FOOTNOTE IN
THE HISTORY OF THE ENGLISH NOVEL."  THESE UNRELATED ASSERTIONS REVEAL
TO ME NOTHING WHATEVER OF LITERARY, HISTORICAL, OR SOCIAL VALUE. 
ANOTHER REVIEW CALLED THE BOOK "A GREAT NOVEL  ...  ONE WHICH TURNS ITS
CONVENTION UPSIDE DOWN  ...  ."  ADMITTEDLY CLELAND DID NOT ATTEMPT
"HIGH ART" BECAUSE HE WAS WRITING "AN EROTIC NOVEL.  HE CAN SKIP THE
ELEVATION AND GET ON WITH THE ERECTIONS."  FANNY'S "DOWNFALL" IS SEEN
AS "ONE LONG DELIGHTFUL SWOON INTO THE DEPTHS OF PLEASURABLE
SENSATION."  RATHER THAN INDICATING SOCIAL VALUE IN THE BOOK, THIS
EVIDENCE REVEALS JUST THE CONTRARY.  ANOTHER ITEM OFFERED BY THE
DEFENSE DESCRIBED MEMOIRS AS BEING "WIDELY ACCREDITED AS THE FIRST
DELIBERATELY DIRTY NOVEL IN ENGLISH."  HOWEVER, THE REVIEWER FOUND
FANNY TO BE "NO COMMON HARLOT.  HER 'MEMOIRS' COMBINE LITERARY GRACE
WITH A DISARMING ENTHUSIASM FOR AN ACTIVITY WHICH IS, AFTER ALL, ONLY
HUMAN.  WHAT IS MORE, SHE NEVER USES A DIRTY WORD."  THE SHORT ANSWER
TO SUCH "EXPERTISE IS THAT NONE OF THESE SO-CALLED ATTRIBUTES HAVE ANY
VALUE TO SOCIETY.  ON THE CONTRARY, THEY ACCENTUATE THE PRURIENT
APPEAL. 

ANOTHER EXPERT DESCRIBED THE BOOK AS HAVING "DETECTABLE LITERARY
MERIT" SINCE IT REFLECTS "AN EFFORT TO INTERPRET A RATHER COMPLEX
CHARACTER  ...  GOING THROUGH A NUMBER OF VERY DIFFERENT ADVENTURES." 
TO ILLUSTRATE HIS ASSERTION THAT THE "WRITING IS VERY SKILLFULLY DONE"
THIS EXPERT POINTED TO THE DESCRIPTION OF A WHORE, "PHOEBE, WHO IS 'RED
FACED, FAT AND IN HER EARLY 50'S, WHO WADDLES INTO A ROOM.'  SHE
DOESN'T WALK IN, SHE WADDLES IN."  GIVEN THIS STANDARD FOR "SKILLFUL
WRITING," IT IS NOT SUPRISING THAT HE FOUND THE BOOK TO HAVE MERIT. 

THE REMAINING EXPERTS TESTIFIED IN THE SAME MANNER, CLAIMING THE BOOK
TO BE A "RECORD OF THE HISTORICAL, PSYCHOLOGICAL, AND SOCIAL EVENTS OF
THE PERIOD."  ONE HAS BUT TO READ THE HISTORY OF THE 18TH CENTURY TO
DISPROVE THIS ASSERTION.  THE STORY DEPICTS NOTHING BESIDES THE
BROTHELS THAT ARE PRESENT IN METROPOLITAN CITIES IN EVERY PERIOD OF
HISTORY.  ONE EXPERT NOTICED "IN THIS BOOK A TENDENCY AWAY FROM
NAKEDNESS DURING THE SEXUAL ACT WHICH I FIND AN INTERESTING SORT OF
SOCIOLOGICAL OBSERVATION" ON TASTES DIFFERENT FROM CONTEMPORARY ONES. 
AS ADDITIONAL PROOF, HE MARVELS THAT FANNY "REFERS CONSTANTLY TO THE
MALE SEXUAL ORGAN AS AN ENGINE  ...  WHICH IS PULLING YOU AWAY FROM THE
WAY THESE EVENTS WOULD BE DESCRIBED IN THE 19TH OR 20TH CENTURY."  HOW
THIS ADDS SOCIAL VALUE TO THE BOOK IS BEYOND MY COMPREHENSION.  IT ONLY
INDICATES THE LENGTHS TO WHICH THESE EXPERTS GO IN THEIR EFFORT TO GIVE
THE BOOK SOME SEMBLANCE OF VALUE.  FOR EXAMPLE, THE UBIQUITOUS
DESCRIPTIONS OF SEXUAL ACTS ARE EXCUSED AS BEING NECESSARY IN TRACING
THE "MORAL PROGRESS" OF THE HEROINE, AND THE GIVING OF A SILVER WATCH
TO A SERVANT IS FOUND TO BE "AN ODD AND INTERESTING CUSTOM THAT I WOULD
LIKE TO KNOW MORE ABOUT."  THIS ONLY POINTS UP THE BANKRUPTCY OF
MEMOIRS IN BOTH PURPOSE AND CONTENT, ADEQUATELY JUSTIFYING THE TRIAL
COURT'S FINDING THAT IT HAD ABSOLUTELY NO SOCIAL VALUE. 

IT IS, OF COURSE, THE DUTY OF THE JUDGE OR THE JURY TO DETERMINE THE
QUESTION OF OBSCENITY, VIEWING THE BOOK BY CONTEMPORARY COMMUNITY
STANDARDS.  IT CAN ACCEPT THE APPRAISAL OF EXPERTS OR DISCOUNT THEIR
TESTIMONY IN THE LIGHT OF THE MATERIAL ITSELF OR OTHER RELEVANT
TESTIMONY.  SO-CALLED "LITERARY OBSCENITY," I.E., THE USE OF EROTIC
FANTASIIES OF THE HARD-CORE TYPE CLOTHED IN AN ENGAGING LITERARY STYLE
HAS NO CONSTITUTIONAL PROTECTION.  IF A BOOK DEALS SOLELY WITH EROTIC
MATERIAL IN A MANNER CALCULATED TO APPEAL TO THE PRURIENT INTEREST, IT
MATTERS NOT THAT IT MAY BE EXPRESSED IN BEAUTIFUL PROSE.  THERE ARE
OBVIOUSLY DYNAMIC CONNECTIONS BETWEEN ART AND SEX - THE EMOTIONAL,
INTELLECTUAL, AND PHYSICAL - BUT WHERE THE FORMER IS USED SOLELY TO
PROMOTE PRURIENT APPEAL, IT CANNOT CLAIM CONSTITUTIONAL IMMUNITY. 
CLELAND USES THIS TECHNIQUE TO PROMOTE THE PRURIENT APPEAL OF MEMOIRS. 
IT IS TRUE THAT FANNY'S PERVERSE EXPERIENCES FINALLY BRING FROM HER THE
OBSERVATION THAT "THE HEIGHTS OF SEXUAL ENJOYMENT CANNOT BE ACHIEVED
UNTIL TRUE AFFECTION PREPARES THE BED OF PASSION."  BUT THIS MERELY
EMPHASIZES THAT SEX, WHEREVER AND HOWEVER FOUND, REMAINS THE SOLE THEME
OF MEMOIRS.  IN MY VIEW, THE BOOK'S REPEATED AND UNRELIEVED APPEALS TO
THE PRURIENT INTEREST OF THE AVERAGE PERSON LEAVE IT UTTERLY WITHOUT
REDEEMING SOCIAL IMPORTANCE. 

   IV. 

IN HIS SEPARATE CONCURRENCE, MY BROTHER DOUGLAS ASSERTS THERE IS NO
PROOF THAT OBSCENITY PRODUCES ANTISOCIAL CONDUCT.  I HAD THOUGHT THAT
THIS QUESTION WAS FORECLOSED BY THE DETERMINATION IN ROTH THAT
OBSCENITY WAS NOT PROTECTED BY THE FIRST AMENDMENT.  I FIND IT
NECESSARY TO COMMENT UPON BROTHER DOUGLAS' VIEWS, HOWEVER, BECAUSE OF
THE NEW REQUIREMENT ENGRAFTED UPON ROTH BY BROTHER BRENNAN, I.E., THAT
MATERIAL WHICH "APPEALS TO A PRURIENT INTEREST" AND WHICH IS "PATENTLY
OFFENSIVE" MAY STILL NOT BE SUPPRESSED UNLESS IT IS "UTTERLY WITHOUT
REDEEMING SOCIAL VALUE."  THE QUESTION OF ANTISOCIAL EFFECT THUS
BECOMES RELEVANT TO THE MORE LIMITED QUESTION OF SOCIAL VALUE.  BROTHER
BRENNAN INDICATES THAT THE SOCIAL IMPORTANCE CRITERION ENCOMPASSES ONLY
SUCH THINGS AS THE ARTISTIC, LITERARY, AND HISTORICAL QUALITIES OF THE
MATERIAL.  BUT THE PHRASING OF THE "UTTERLY WITHOUT REDEEMING SOCIAL
VALUE" TEST SUGGESTS THAT OTHER EVIDENCE MUST BE CONSIDERED.  TO SAY
THAT SOCIAL VALUE MAY "REDEEM" IMPLIES THAT COURTS MUST BALANCE ALLEGED
ESTHETIC MERIT AGAINST THE HARMFUL CONSEQUENCES THAT MAY FLOW FROM
PORNOGRAPHY.  WHATEVER THE SCOPE OF THE SOCIAL VALUE CRITERION - WHICH
NEED NOT BE DEFINED WITH PRECISION HERE - IT AT LEAST ANTICIPATES THAT
THE TRIER OF FACT WILL WEIGH EVIDENCE OF THE MATERIAL'S INFLUENCE IN
CAUSING DEVIANT OR CRIMINAL CONDUCT, PARTICULARLY SEX CRIMES, AS WELL
AS ITS EFFECT UPON THE MENTAL, MORAL, AND PHYSICAL HEALTH OF THE
AVERAGE PERSON.  BROTHER DOUGLAS' VIEW AS TO THE LACK OF PROOF IN THIS
AREA IS NOT SO FIRMLY HELD AMONG BEHAVIORAL SCIENTISTS AS HE WOULD LEAD
US TO BELIEVE.  FOR THIS REASON, I SHOULD MENTION THAT THERE IS A
DIVISION OF THOUGHT ON THE CORRELATION BETWEEN OBSCENITY AND SOCIALLY
DELETERIOUS BEHAVIOR. 

PSYCHOLOGICAL AND PHYSIOLOGICAL STUDIES CLEARLY INDICATE THAT MANY
PERSONS BECOME SEXUALLY AROUSED FROM READING OBSCENE MATERIAL.  (FN4)
WHILE EROTIC STIMULATION CAUSED BY PORNOGRAPHY MAY BE LEGALLY
INSIGNIFICANT IN ITSELF, THERE ARE MEDICAL EXPERTS WHO BELIEVE THAT
SUCH STIMULATION FREQUENTLY MANIFESTS ITSELF IN CRIMINAL SEXUAL
BEHAVIOR AND OTHER ANTISOCIAL CONDUCT.  (FN5)  FOR EXAMPLE, DR. GEORGE
W. HENRY OF CORNELL UNIVERSITY HAS EXPRESSED THE OPINION THAT
OBSCENITY, WITH ITS EXAGGERATED AND MORBID EMPHASIS ON SEX,
PARTICULARLY ABNORMAL AND PERVERTED PRACTICES, AND ITS UNREALISTIC
PRESENTATION OF SEXUAL BEHAVIOR AND ATTITUDES, MAY INDUCE ANTISOCIAL
CONDUCT BY THE AVERAGE PERSON.  (FN6)  A NUMBER OF SOCIOLOGISTS THINK
THAT THIS MATERIAL MAY HAVE ADVERSE EFFECTS UPON INDIVIDUAL MENTAL
HEALTH, WITH POTENTIALLY DISRUPTIVE CONSEQUENCES FOR THE COMMUNITY. 
(FN7) 

IN ADDITION, THERE IS PERSUASIVE EVIDENCE FROM CRIMINOLOGISTS AND
POLICE OFFICIALS.  INSPECTOR HERBERT CASE OF THE DETROIT POLICE
DEPARTMENT CONTENDS THAT SEX MURDER CASES ARE INVARIABLY TIED TO SOME
FORM OF OBSCENE LITERATURE.  (FN8)  AND THE DIRECTOR OF THE FEDERAL
BUREAU OF INVESTIGATION, J. EDGAR HOOVER, HAS REPEATEDLY EMPHASIZED
THAT PORNOGRAPHY IS ASSOCIATED WITH AN OVERWHELMINGLY LARGE NUMBER OF
SEX CRIMES.  AGAIN, WHILE THE CORRELATION BETWEEN POSSESSION OF
OBSCENITY AND DEVIANT BEHAVIOR HAS NOT BEEN CONCLUSIVELY ESTABLISHED,
THE FILES OF OUR LAW ENFORCEMENT AGENCIES CONTAIN MANY REPORTS OF
PERSONS WHO PATTERNED THEIR CRIMINAL CONDUCT AFTER BEHAVIOR DEPICTED IN
OBSCENE MATERIAL.  (FN9) 

THE CLERGY ARE ALSO OUTSPOKEN IN THEIR BELIEF THAT PORNOGRAPHY
ENCOURAGES VIOLENCE, DEGENERACY AND SEXUAL MISCONDUCT.  IN A SPEECH
REPORTED BY THE NEW YORK JOURNAL-AMERICAN AUGUST 7, 1964, CARDINAL
SPELLMAN PARTICULARLY STRESSED THE DIRECT INFLUENCE OBSCENITY HAS ON
IMMATURE PERSONS.  THESE AND RELATED VIEWS HAVE BEEN CONFIRMED BY
PRACTICAL EXPERIENCE.  AFTER YEARS OF SERVICE WITH THE WEST LONDON
MISSION, REV. DONALD SOPER FOUND THAT PORNOGRAPHY WAS A PRIMARY CAUSE
OF PROSTITUTION.  ROLPH, DOES PORNOGRAPHY MATTER?  (1961), PP. 47-48. 
(FN10) 

CONGRESS AND THE LEGISLATURES OF EVERY STATE HAVE ENACTED MEASURES TO
RESTRICT THE DISTRIBUTION OF EROTIC AND PORNOGRAPHIC MATERIAL, (FN11)
JUSTIFYING THESE CONTROLS BY REFERENCE TO EVIDENCE THAT ANTISOCIAL
BEHAVIOR MAY RESULT IN PART FROM READING OBSCENITY.  (FN12)  LIKEWISE,
UPON ANOTHER TRIAL, THE PARTIES MAY OFFER THIS SORT OF EVIDENCE ALONG
WITH OTHER "SOCIAL VALUE" CHARACTERISTICS THAT THEY ATTRIBUTE TO THE
BOOK. 

BUT THIS IS NOT ALL THAT MASSACHUSETTS COURTS MIGHT CONSIDER.  I
BELIEVE IT CAN BE ESTABLISHED THAT THE BOOK "WAS COMMERCIALLY EXPLOITED
FOR THE SAKE OF PRURIENT APPEAL, TO THE EXCLUSION OF ALL OTHER VALUES"
AND SHOULD THEREFORE BE DECLARED OBSCENE UNDER THE TEST OF COMMERCIAL
EXPLOITATION ANNOUNCED TODAY IN GINZBURG AND MISHKIN. 

AS I HAVE STATED, MY STUDY OF MEMOIRS LEADS ME TO THINK THAT IT HAS
NO CONCEIVABLE "SOCIAL IMPORTANCE."  THE AUTHOR'S OBSESSION WITH SEX,
HIS MINUTE DESCRIPTIONS OF PHALLI, AND HIS REPETITIOUS ACCOUNTS OF
BAWDY SEXUAL EXPERIENCES AND DEVIANT SEXUAL BEHAVIOR INDICATE THE BOOK
WAS DESIGNED SOLELY TO APPEAL TO PRURIENT INTERESTS.  IN ADDITION, THE
RECORD BEFORE THE COURT CONTAINS EXTRINSIC EVIDENCE TENDING TO SHOW
THAT THE PUBLISHER WAS FULLY AWARE THAT THE BOOK ATTRACTED READERS
DESIROUS OF VICARIOUS SEXUAL PLEASURE, AND SOUGHT TO PROFIT SOLELY FROM
ITS PRURIENT APPEAL.   THE PUBLISHER'S "INTRODUCTION" RECITES THAT
CLELAND, A "NEVER-DO-WELL BOHEMIAN," WROTE THE BOOK IN 1749 TO MAKE A
QUICK 20 GUINEAS.  THEREAFTER, VARIOUS PUBLICATIONS OF THE BOOK, OFTEN
"EMBELLISHED WITH FRESH INFLAMMATORY DETAILS" AND "HIGHLY EXAGGERATED
ILLUSTRATIONS," APPEARED IN "SURREPTITIOUS CIRCULATION."  INDEED, THE
COVER OF MEMOIRS TEMPTS THE READER WITH THE ANNOUNCEMENT THAT THE SALE
OF THE BOOK HAS FINALLY BEEN PERMITTED "AFTER 214 YEARS OF
SUPPRESSION."  ALTHOUGH WRITTEN IN A SOPHISTICATED TONE, THE
"INTRODUCTION" REPEATEDLY INFORMS THE READER THAT HE MAY EXPECT GRAPHIC
DESCRIPTIONS OF GENITALS AND SEXUAL EXPLOITS.  FOR INSTANCE, IT
STATES: 

"HERE AND THERE, CLELAND'S DESCRIPTIONS OF LOVEMAKING ARE MARRED BY
WHAT PERHAPS COULD BE BEST DESCRIBED AS HIS ADHERENCE TO THE
'LONGITUDINAL FALLACY' - THE FORMIDABLE BODILY EQUIPMENT OF HIS MOST
ACCOMPLISHED LOVERS IS APT TO BE DESCRIBED WITH QUITE UNNECESSARY
RELISH  ...  ." 

MANY OTHER PASSAGES IN THE "INTRODUCTION" SIMILARLY REFLECT THE
PUBLISHER'S "OWN EVALUATION" OF THE BOOK'S NATURE.  THE EXCERPT PRINTED
ON THE JACKET OF THE HARDCOVER EDITION IS TYPICAL: 

"MEMOIRS OF A WOMAN OF PLEASURE IS THE PRODUCT OF A LUXURIOUS AND
LICENTIOUS, BUT NOT A COMMERCIALLY DEGRADED, ERA  ...  .  FOR ALL ITS
ABOUNDING IMPROPRIETIES, HIS PRIAPIC NOVEL IS NOT A VULGAR BOOK.  IT
TREATS OF PLEASURE AS THE AIM AND END OF EXISTENCE, AND OF SEXUAL
SATISFACTION AS THE EPITOME OF PLEASURE, BUT DOES SO IN A STYLE THAT,
DESPITE ITS INFLAMMATORY SUBJECT, NEVER STOOPS TO A GROSS OR UNBECOMING
WORD." 

CLELAND APPARENTLY WROTE ONLY ONE OTHER BOOK, A SEQUEL CALLED MEMOIRS
OF A COXCOMB, PUBLISHED BY LANCER BOOKS, INC. THE "INTRODUCTION" TO
THAT BOOK LABELS MEMOIRS OF A WOMAN OF PLEASURE AS "THE MOST
SENSATIONAL PIECE OF EROTICA IN ENGLISH LITERATURE."  I DARESAY THAT
THIS FACT ALONE EXPLAINS WHY G.P. PUTNAM'S SONS PUBLISHED THIS
OBSCENITY - PREYING UPON PRURIENT AND CARNAL PROCLIVITIES FOR ITS OWN
PRECUNIARY ADVANTAGE.  I WOULD AFFIRM THE JUDGMENT. 

FN1  SEE LOCKHART & MCCLURE, CENSORSHIP OF OBSCENITY:  THE DEVELOPING
CONSTITUTIONAL STANDARDS, 45 MINN. L. REV. 5, 53-55 (1960). 

FN2  IN A PREFACE TO THE PAPERBOOK EDITION, "A NOTE ON THE AMERICAN
HISTORY OF MEMOIRS OF A WOMAN OF PLEASURE," THE PUBLISHER ITSELF
MENTIONS SEVERAL CRITICS WHO DENIED THE BOOK HAD ANY LITERARY MERIT AND
FOUND IT TOTALLY UNDISTINGUISHED.  THESE CRITICS INCLUDED RALPH
THOMPSON AND CLIFTON FADIMAN.  P. XVIII. 

FN3  AS ONE REVIEW STATED:  "YET ALL THESE PANGS OF DEFLORATION ARE
IN THE SERVICE OF EROTIC PLEASURE - FANNY'S AND THE READER'S.
POSTPONING THE CULMINATION OF FANNY'S DEFLOWERING IS EQUIVALENT TO
POSTPONING THE POINT WHERE THE READER HAS A MENTAL ORGASM." 

FN4  FOR A SUMMARY OF EXPERIMENTS WITH VARIOUS SEXUAL STIMULI SEE
CAIRNS, PAUL & WISHNER, SEX CENSORSHIP:  THE ASSUMPTIONS OF ANTI
OBSCENITY LAWS AND THE EMPIRICAL EVIDENCE, 46 MINN.  L. REV. 1009
(1962).  THE AUTHORS CITE RESEARCH BY KINSEY DISCLOSING THAT OBSCENE
LITERATURE STIMULATED A DEFINITE SEXUAL RESPONSE IN A MAJORITY OF THE
MALE AND FEMALE SUBJECTS TESTED. 

FN5  E.G., WERTHAM, SEDUCTION OF THE INNOCENT (1954), P. 164. 

FN6  TESTIMONY BEFORE THE SUBCOMMITTEE OF THE JUDICIARY COMMITTEE TO
INVESTIGATE JUVENILE DELIQUENCY, S. REP. NO. 2381, 84TH CONG., 2D
SESS., PP. 8-12 (1956). 

FN7  SOROKIN, THE AMERICAN SEX REVOLUTION (1956). 

FN8  TESTIMONY BEFORE THE HOUSE SELECT COMMITTEE ON CURRENT
PORNOGRAPHIC MATERIALS, H.R.  REP. NO. 2510, 82D CONG., 2D SESS., P. 62
(1952). 

FN9  SEE, E.G., HOOVER, COMBATING MERCHANTS OF FILTH:  THE ROLE OF
THE FBI, 25 U. PITT.  L. REV. 469 (1964); HOOVER, THE FIGHT AGAINST
FILTH, THE AMERICAN LEGION MAGAZINE (1961). 

FN10  FOR A GENERAL DISCUSSION SEE MURPHY, CENSORSHIP:  GOVERNMENT
AND OBSCENITY (1963), PP. 131-151. 

FN11  THE STATUTES ARE COMPILED IN S. REP. NO. 2381, 84TH CONG., 2D
SESS., PP. 17-23 (1956).  WHILE NEW MEXICO ITSELF DOES NOT PROHIBIT THE
DISTRIBUTION OF OBSCENITY, IT HAS A STATUTE GIVING MUNICIPALITIES THE
RIGHT TO SUPPRESS "OBSCENE" PUBLICATIONS.  N.M. STAT. SEC. 14-17-14
(1965 SUPP.). 

FN12  SEE REPORT OF THE NEW YORK STATE JOINT LEGISLATIVE COMMITTEE
STUDYING THE PUBLICATION AND DISSEMINATION OF OFFENSIVE AND OBSCENE
MATERIAL (1958), PP. 141-166. 

MR. JUSTICE HARLAN, DISSENTING. 

THE CENTRAL DEVELOPMENT THAT EMERGES FROM THE AFTERMATH OF ROTH V.
UNITED STATES, 354 U.S. 476, IS THAT NO STABLE APPROACH TO THE
OBSCENITY PROBLEM HAS YET BEEN DEVISED BY THIS COURT.  TWO JUSTICES
BELIEVE THAT THE FIRST AND FOURTEENTH AMENDMENTS ABSOLUTELY PROTECT
OBSCENE AND NONOBSCENE MATERIAL ALIKE.  ANOTHER JUSTICE BELIEVES THAT
NEITHER THE STATES NOR THE FEDERAL GOVERNMENT MAY SUPPRESS ANY MATERIAL
SAVE FOR "HARD-CORE PORNOGRAPHY."  ROTH IN 1957 STRESSED PRURIENCE AND
UTTER LACK OF REDEEMING SOCIAL IMPORTANCE; (FN1) AS ROTH HAS BEEN
EXPOUNDED IN THIS CASE, IN GINZBURG V. UNITED STATES, POST, P. 463, AND
IN MISHKIN V. NEW YORK, POST, P. 502, IT HAS UNDERGONE SIGNIFICANT
TRANSFORMATION.  THE CONCEPT OF "PANDERING," EMPHASIZED BY THE SEPARATE
OPINION OF THE CHIEF JUSTICE IN ROTH, NOW EMERGES AS AN UNCERTAIN GLOSS
OF INTERPRETIVE AID, AND THE FURTHER REQUISITE OF "PATENT
OFFENSIVENESS" HAS BEEN MADE EXPLICIT AS A RESULT OF INTERVENING
DECISIONS.  GIVEN THIS TANGLED STATE OF AFFAIRS, I FEEL FREE TO ADHERE
TO THE PRINCIPLES FIRST SET FORTH IN MY SEPARATE OPINION IN ROTH, 354,
U.S., AT 496, WHICH I CONTINUE TO BELIEVE REPRESENT THE SOUNDEST
CONSTITUTIONAL SOLUTION TO THIS INTRACTABLE PROBLEM. 

MY PREMISE IS THAT IN THE AREA OF OBSCENITY THE CONSTITUTION DOES NOT
BIND THE STATES AND THE FEDERAL GOVERNMENT IN PRECISELY THE SAME
FASHION.  THIS APPROACH IS PLAINLY CONSISTENT WITH THE LANGUAGE OF THE
FIRST AND FOURTEENTH AMENDMENTS AND, IN MY OPINION, MORE RESPONSIVE TO
THE PROPER FUNCTIONING OF A FEDERAL SYSTEM OF GOVERNMENT IN THIS AREA. 
SEE MY OPINION IN ROTH, 354 U.S., AT 505-506.  I BELIEVE IT IS ALSO
CONSISTENT WITH PAST DECISIONS OF THIS COURT.  ALTHOUGH SOME 40 YEARS
HAVE PASSED SINCE THE COURT FIRST INDICATED THAT THE FOURTEENTH
AMENDMENT PROTECTS "FREE SPEECH," SEE GITLOW V. NEW YORK, 268 U.S. 652;
FISKE V. KANSAS, 274 U.S. 380, THE DECISIONS HAVE NEVER DECLARED THAT
EVERY UTTERANCE THE FEDERAL GOVERNMENT MAY NOT ENACT IS ALSO BEYOND THE
POWER OF THE STATE.  THE VERY CRITERIA USED IN OPINIONS TO DELIMIT THE
PROTECTION OF FREE SPEECH - THE GRAVITY OF THE EVIL BEING REGULATED,
SEE SCHNEIDER V. STATE, 308 U.S. 147; HOW "CLEAR AND PRESENT" IS THE
DANGER, SCHENCK V. UNITED STATES, 249 U.S. 47, 52 (HOLMES, J ); THE
MAGNITUDE OF "SUCH INVASION OF FREE SPEECH AS IS NECESSARY TO AVOID THE
DANGER," UNITED STATES V. DENNIS, 183 F.2D 201, 212 (L. HAND, J.)  -
MAY AND DO DEPEND ON THE PARTICULAR CONTEXT IN WHICH POWER IS
EXERCISED.  WHEN, FOR EXAMPLE, THE COURT IN BEAUHARNAIS V. ILLINOIS,
343 U.S. 250, UPHELD A CRIMINAL GROUP-LIBEL LAW BECAUSE OF THE "SOCIAL
INTEREST IN ORDER AND MORALITY," 343 U.S., AT 257, IT WAS ACKNOWLEDGING
THE RESPONSIBILITY AND CAPACITY OF THE STATES IN SUCH PUBLIC-WELFARE
MATTERS AND NOT COMMITTING ITSELF TO UPHOLD ANY SIMILAR FEDERAL STATUTE
APPLYING TO SUCH COMMUNICATIONS AS CONGRESS MIGHT OTHERWISE REGULATE
UNDER THE COMMERCE POWER.  SEE ALSO KOVACS V. COOPER, 336 U.S. 77. 

FEDERAL SUPPRESSION OF ALLEGEDLY OBSCENE MATTER SHOULD, IN MY VIEW,
BE CONSTITUTIONALLY LIMITED TO THAT OFTEN DESCRIBED AS "HARD-CORE
PORNOGRAPHY."  TO BE SURE, THAT RUBRIC IS NOT A SELF-EXECUTING
STANDARD, BUT IT DOES DESCRIBE SOMETHING THAT MOST JUDGES AND OTHERS
WILL "KNOW  ...  WHEN THEY SEE IT" (STEWART, J., IN JACOBELLIS V. OHIO,
378 U.S. 184, 197) AND THAT LEAVES THE SMALLEST ROOM FOR DISAGREEMENT
BETWEEN THOSE OF VARYING TASTES.  TO ME IT IS PLAIN, FOR INSTANCE, THAT
FANNY HILL DOES NOT FALL WITHIN THIS CLASS AND COULD NOT BE BARRED FROM
THE FEDERAL MAILS.  IF FURTHER ARTICULATION IS MEANINGFUL, I WOULD
CHARACTERIZE AS "HARD-CORE" THAT PRURIENT MATERIAL THAT IS PATENTLY
OFFENSIVE OR WHOSE INDECENCY IS SELF-DEMONSTRATING AND I WOULD DESCRIBE
IT SUBSTANTIALLY AS DOES MR. JUSTICE STEWART'S OPINION IN GINZBURG,
POST, P. 499.  THE FEDERAL GOVERNMENT MAY BE CONCEDED A LIMITED
INTEREST IN EXCLUDING FROM THE MAILS SUCH GROSS PORNOGRAPHY, ALMOST
UNIVERSALLY CONDEMNED IN THIS COUNTRY.  (FN2)  BUT I BELIEVE THE
DANGERS OF NATIONAL CENSORSHIP AND THE EXISTENCE OF PRIMARY
RESPONSIBILITY AT THE STATE LEVEL AMPLY JUSTIFY DRAWING THE LINE AT
THIS POINT. 

STATE OBSCENITY LAWS PRESENT PROBLEMS OF QUITE A DIFFERENT ORDER. 
THE VARYING CONDITIONS ACROSS THE COUNTRY, THE RANGE OF VIEWS ON THE
NEED AND REASONS FOR CURBING OBSCENITY, AND THE TRADITIONS OF LOCAL
SELF-GOVERNMENT IN MATTERS OF PUBLIC WELFARE ALL FAVOR A FAR MORE
FLEXIBLE ATTITUDE IN DEFINING THE BOUNDS FOR THE STATES.  FROM MY
STANDPOINT, THE FOURTEENTH AMENDMENT REQUIRES OF A STATE ONLY THAT IT
APPLY CRITERIA RATIONALLY RELATED TO THE ACCEPTED NOTION OF OBSCENITY
AND THAT IT REACH RESULTS NOT WHOLLY OUT OF STEP WITH CURRENT AMERICAN
STANDARDS.  AS TO CRITERIA, IT SHOULD BE ADEQUATE IF THE COURT OR JURY
CONSIDERS SUCH ELEMENTS AS OFFENSIVENESS, PRURIENCY, SOCIAL VALUE, AND
THE LIKE.  THE LATITUDE WHICH I BELIEVE THE STATES DESERVE CAUTIONS
AGAINST ANY FEDERALLY IMPOSED FORMULA LISTING THE EXCLUSIVE INGREDIENTS
OF OBSCENITY AND FIXING THEIR PROPORTIONS.  THIS APPROACH CONCEDEDLY
LACKS PRECISION, BUT IMPRECISION IS CHARACTERISTIC OF MEDIATING
CONSTITUTIONAL STANDARDS; (FN3) VOLUNTARINESS OF A CONFESSION, CLEAR
AND PRESENT DANGER, AND PROBABLE CAUSE ARE ONLY THE MOST READY
ILLUSTRATIONS.  IN TIME AND WITH MORE LITIGATED EXAMPLES,
PREDICTABILITY INCREASES, BUT THERE IS NO SHORTCUT TO SATISFACTORY
SOLUTIONS IN THIS FIELD, AND THERE IS NO ADVANTAGE IN SUPPOSING
OTHERWISE. 

I BELIEVE THE TESTS SET OUT IN THE PREVAILING OPINION, JUDGED BY
THEIR APPLICATION IN THIS CASE, OFFER ONLY AN ILLUSION OF CERTAINTY AND
RISK CONFUSION AND PREJUDICE.  THE OPINION DECLARES THAT A BOOK CANNOT
BE BANNED UNLESS IT IS "UTTERLY WITHOUT REDEEMING SOCIAL VALUE" (ANTE,
P. 418).  TO ESTABLISH SOCIAL VALUE IN THE PRESENT CASE, A NUMBER OF
ACKNOWLEDGED EXPERTS IN THE FIELD OF LITERATURE TESTIFIED THAT FANNY
HILL HELD A RESPECTABLE PLACE IN SERIOUS WRITING, AND UNLESS SUCH
LARGELY UNCONTRADICTED TESTIMONY IS ACCEPTED AS DECISIVE IT IS VERY
HARD TO SEE THAT THE "UTTERLY WITHOUT REDEEMING SOCIAL VALUE" TEST HAS
ANY MEANING AT ALL.  YET THE PREVAILING OPINION, WHILE DENYING THAT
SOCIAL VALUE MAY BE "WEIGHED AGAINST" OR "CANCELED BY" PRURIENCE OR
OFFENSIVENESS (ANTE, P. 419), TERMINATES THIS CASE UNWILLING TO GIVE A
CONCLUSIVE DECISION ON THE STATUS OF FANNY HILL UNDER THE
CONSTITUTION.  (FN4)  APPARENTLY, THE COURT BELIEVES THAT THE SOCIAL
VALUE OF THE BOOK MAY BE NEGATED IF PROOF OF PANDERING IS PRESENT. 
USING THIS INHERENTLY VAGUE "PANDERING" NOTION TO OFFSET "SOCIAL VALUE"
WIPES OUT ANY CERTAINTY THE LATTER TERM MIGHT BE GIVEN BY RELIANCE ON
EXPERTS, AND ADMITS INTO THE CASE HIGHLY PREJUDICIAL EVIDENCE WITHOUT
APPROPRIATE RESTRICTIONS.  SEE MY DISSENTING OPINION IN GINZBURG,
POST.  P. 493.  I THINK IT IS MORE SATISFACTORY TO ACKNOWLEDGE THAT ON
THIS RECORD THE BOOK HAS BEEN SHOWN TO HAVE SOME QUANTUM OF SOCIAL
VALUE, THAT IT MAY AT THE SAME TIME BE DEEMED OFFENSIVE AND SALACIOUS,
AND THAT THE STATE'S DECISION TO WEIGH THESE ELEMENTS AND TO BAN THIS
PARTICULAR WORK DOES NOT EXCEED CONSTITUTIONAL LIMITS. 

A FINAL ASPECT OF THE OBSCENITY PROBLEM IS THE ROLE THIS COURT IS TO
PLAY IN ADMINISTERING ITS STANDARDS, A MATTER THAT ENGENDERED JUSTIFIED
CONCERN AT THE ORAL ARGUMENT OF THE CASES NOW DECIDED.   SHORT OF
SAYING THAT NO MATERIAL RELATING TO SEX MAY BE BANNED, OR THAT ALL OF
IT MAY BE, I DO NOT SEE HOW THIS COURT CAN ESCAPE THE TASK OF REVIEWING
OBSCENITY DECISIONS ON A CASE-BY-CASE BASIS.  THE VIEWS OF LITERARY OR
OTHER EXPERTS COULD BE MADE CONTROLLING, BUT THOSE EXPERTS HAD THEIR
SAY IN FANNY HILL AND APPARENTLY THE MAJORITY IS NO MORE WILLING THAN I
TO SAY THAT MASSACHUSETTS MUST ABIDE BY THEIR VERDICT.  YET I VENTURE
TO SAY THAT THE COURT'S BURDEN OF DECISION WOULD BE AMELIORATED UNDER
THE CONSTITUTIONAL PRINCIPLES THAT I HAVE ADVOCATED.  "HARD-CORE
PORNOGRAPHY" FOR JUDGING FEDERAL CASES IS ONE OF THE MORE TANGIBLE
CONCEPTS IN THE FIELD.  AS TO THE STATES, THE DUE LATITUDE MY APPROACH
WOULD LEAVE THEM ENSURES THAT ONLY THE UNUSUAL CASE WOULD REQUIRE
PLENARY REVIEW AND CORRECTION BY THIS COURT. 

THERE IS PLENTY OF ROOM, I KNOW, FOR DISAGREEMENT IN THIS AREA OF
CONSTITUTIONAL LAW.  SOME WILL THINK THAT WHAT I PROPOSE MAY ENCOURAGE
STATES TO GO TOO FAR IN THIS FIELD.  OTHERS WILL CONSIDER THAT THE
COURT'S PRESENT COURSE UNDULY RESTRICTS STATE EXPERIMENTATION WITH THE
STILL ELUSIVE PROBLEM OF OBSCENITY.  FOR MYSELF, I BELIEVE IT IS THE
PART OF WISDOM FOR THOSE OF US WHO HAPPEN CURRENTLY TO POSSESS THE
"FINAL WORD" TO LEAVE ROOM FOR SUCH EXPERIMENTATION, WHICH INDEED IS
THE UNDERLYING GENIUS OF OUR FEDERAL SYSTEM. 

ON THE PREMISES SET FORTH IN THIS OPINION, SUPPLEMENTING WHAT I HAVE
EARLIER SAID IN MY OPINIONS IN ROTH, SUPRA, MANUAL ENTERPRISES, INC. V.
DAY, 370 U.S. 478, AND JACOBELLIS V. OHIO, 378 U.S., AT 203, I WOULD
AFFIRM THE JUDGMENT OF THE MASSACHUSETTS SUPREME JUDICIAL COURT. 

FN1  GIVEN MY VIEW OF THE APPLICABLE CONSTITUTIONAL STANDARDS, I FIND
NO OCCASION TO CONSIDER THE PLACE OF "REDEEMING SOCIAL IMPORTANCE" IN
THE MAJORITY OPINION IN ROTH, AN ISSUE WHICH FURTHER DIVIDES THE
PRESENT COURT. 

FN2  THIS INTEREST MAY BE VIEWED FROM DIFFERENT ANGLES.  COMPELLING
THE POST OFFICE TO AID ACTIVELY IN DISSEMINATING THIS MOST OBNOXIOUS
MATERIAL MAY SIMPLY APPEAR TOO OFFENSIVE IN ITSELF.  OR, MORE
CONCRETELY, USE OF THE MAILS MAY FACILITATE OR INSULATE DISTRIBUTION SO
GREATLY THAT FEDERAL INACTION AMOUNTS TO THWARTING STATE REGULATION. 

FN3  THE DETERRENT EFFECT OF VAGUENESS FOR THAT CRITICAL CLASS OF
BOOKS NEAR THE LAW'S BORDERLINE COULD IN THE PAST BE AMELIORATED BY
DEVICES LIKE THE MASSACHUSETTS IN REM PROCEDURE USED IN THIS CASE.  OF
COURSE, THE COURT'S NEWLY ADOPTED "PANDERER" TEST, TURNING AS IT DOES
ON THE MOTIVES AND ACTIONS OF THE PARTICULAR DEFENDANT, SERIOUSLY
UNDERCUTS THE EFFORT TO GIVE ANY SELLER A YES OR NO ANSWER ON A BOOK IN
ADVANCE OF HIS OWN CRIMINAL PROSECUTION. 

FN4  AS I UNDERSTAND THE PREVAILING OPINION, ITS RATIONALE IS THAT
THE STATE COURT MAY NOT CONDEMN FANNY HILL AS OBSCENE AFTER FINDING THE
BOOK TO HAVE A MODICUM OF SOCIAL VALUE; THE OPINION DOES NOTE THAT
PROOF OF PANDERING "MIGHT JUSTIFY THE CONCLUSION" THAT THE BOOK WHOLLY
LACKS SOCIAL VALUE (ANTE, P. 420).  GIVEN ITS PREMISE FOR REVERSAL, THE
OPINION HAS "NO OCCASION TO ASSESS" FOR ITSELF THE PRURIENCY,
OFFENSIVENESS, OR LACK OF SOCIAL VALUE OF THE BOOK (ANTE, P. 420). 

MR. JUSTICE WHITE, DISSENTING. 

IN ROTH V. UNITED STATES, 354 U.S. 476, THE COURT HELD A PUBLICATION
TO BE OBSCENE IF ITS PREDOMINANT THEME APPEALS TO THE PRURIENT INTEREST
IN A MANNER EXCEEDING CUSTOMARY LIMITS OF CANDOR.   MATERIAL OF THIS
KIND, THE COURT SAID, IS "UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE"
AND IS THEREFORE UNPROTECTED BY THE FIRST AMENDMENT. 

TO SAY THAT MATERIAL WITHIN THE ROTH DEFINITION OF OBSCENITY IS
NEVERTHELESS NOT OBSCENE IF IT HAS SOME REDEEMING SOCIAL VALUE IS TO
REJECT ONE OF THE BASIC PROPOSITIONS OF THE ROTH CASE - THAT SUCH
MATERIAL IS NOT PROTECTED BECAUSE IT IS INHERENTLY AND UTTERLY WITHOUT
SOCIAL VALUE. 

IF "SOCIAL IMPORTANCE" IS TO BE USED AS THE PREVAILING OPINION USES
IT TODAY, OBSCENE MATERIAL, HOWEVER FAR BEYOND CUSTOMARY LIMITS OF
CANDOR, IS IMMUNE IF IT HAS ANY LITERARY STYLE, IF IT CONTAINS ANY
HISTORICAL REFERENCES OR LANGUAGE CHARACTERISTIC OF A BYGONE DAY, OR
EVEN IF IT IS PRINTED OR BOUND IN AN INTERESTING WAY.  WELL WRITTEN,
ESPECIALLY EFFECTIVE OBSCENITY IS PROTECTED; THE POORLY WRITTEN IS
VULNERABLE.  AND WHY SHOULDN'T THE FACT THAT SOME PEOPLE BUY AND READ
SUCH MATERIAL PROVE ITS "SOCIAL VALUE"? 

A FORTIORI, IF THE PREDOMINANT THEME OF THE BOOK APPEALS TO THE
PRURIENT INTEREST AS STATED IN ROTH BUT THE BOOK NEVERTHELESS CONTAINS
HERE AND THERE A PASSAGE DESCRIPTIVE OF CHARACTER, GEOGRAPHY OR
ARCHITECTURE, THE BOOK WOULD NOT BE "OBSCENE" UNDER THE SOCIAL
IMPORTANCE TEST.  I HAD THOUGHT THAT ROTH COUNSELED THE CONTRARY:  THAT
THE CHARACTER OF THE BOOK IS FIXED BY ITS PREDOMINANT THEME AND IS NOT
ALTERED BY THE PRESENCE OF MINOR THEMES OF A DIFFERENT NATURE.  THE
ROTH COURT'S EMPHATIC RELIANCE ON THE QUOTATION FROM CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568, MEANS NOTHING LESS: 

"'  ...  THERE ARE CERTAIN WELL-DEFINED AND NARROWLY LIMITED CLASSES
OF SPEECH, THE PREVENTION AND PUNISHMENT OF WHICH HAVE NEVER BEEN
THOUGHT TO RAISE ANY CONSTITUTIONAL PROBLEM.  THESE INCLUDE THE LEWD
AND OBSCENE  ...  .  IT HAS BEEN WELL OBSERVED THAT SUCH UTTERANCES ARE
NO ESSENTIAL PART OF ANY EXPOSITION OF IDEAS, AND ARE OF SUCH SLIGHT
SOCIAL VALUE AS A STEP TO TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED
FROM THEM IS CLEARLY OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND
MORALITY ...  .'"  354 U.S., AT 485. 

IN MY VIEW, "SOCIAL IMPORTANCE" IS NOT AN INDEPENDENT TEST OF
OBSCENITY BUT IS RELEVANT ONLY TO DETERMINING THE PREDOMINANT PRURIENT
INTEREST OF THE MATERIAL, A DETERMINATION WHICH THE COURT OR THE JURY
WILL MAKE BASED ON THE MATERIAL ITSELF AND ALL THE EVIDENCE IN THE
CASE, EXPERT OR OTHERWISE. 

APPLICATION OF THE ROTH TEST, AS I UNDERSTAND IT, NECESSARILY
INVOLVES THE EXERCISE OF JUDGMENT BY LEGISLATURES, COURTS AND JURIES. 
BUT THIS DOES NOT MEAN THAT THERE ARE NO LIMITS TO WHAT MAY BE DONE IN
THE NAME OF ROTH.  CF. JACOBELLIS V. OHIO, 378 U.S. 184.  ROTH DOES NOT
MEAN THAT A LEGISLATURE IS FREE TO BAN BOOKS SIMPLY BECAUSE THEY DEAL
WITH SEX OR BECAUSE THEY APPEAL TO THE PRURIENT INTEREST.  NOR DOES IT
MEAN THAT IF BOOKS LIKE FANNY HILL ARE UNPROTECTED, THEIR NONPRURIENT
APPEAL IS NECESSARILY LOST TO THE WORLD.  LITERARY STYLE, HISTORY,
TEACHINGS ABOUT SEX, CHARACTER DESCRIPTION (EVEN OF A PROSTITUTE) OR
MORAL LESSONS NEED NOT COME WRAPPED IN SUCH PACKAGES.  THE FACT THAT
THEY DO IMPEACHES THEIR CLAIMS TO IMMUNITY FROM LEGISLATIVE CENSURE. 

FINALLY, IT SHOULD BE REMEMBERED THAT IF THE PUBLICATION AND SALE OF
FANNY HILL AND LIKE BOOKS ARE PROSCRIBED, IT IS NOT THE CONSTITUTION
THAT IMPOSES THE BAN.  CENSURE STEMS FROM A LEGISLATIVE ACT, AND
LEGISLATURES ARE CONSTITUTIONALLY FREE TO EMBRACE SUCH BOOKS WHENEVER
THEY WISH TO DO SO.  BUT IF A STATE INSISTS ON TREATING FANNY HILL AS
OBSCENE AND FORBIDDING ITS SALE, THE FIRST AMENDMENT DOES NOT PREVENT
IT FROM DOING SO. 

I WOULD AFFIRM THE JUDGMENT BELOW. 
..END :









GINZBURG V. UNITED STATES 383 U.S. 463 


NO. 42.  ARGUED DECEMBER 7, 1965.  - DECIDED MARCH 21, 1966.  - 338 F.2D
12, AFFIRMED. 


PETITIONER GINZBURG AND THREE CORPORATIONS WHICH HE CONTROLLED WERE
CONVICTED OF VIOLATING THE FEDERAL OBSCENITY STATUTE, 18 U.S.C. SEC.
1461, BY MAILING THREE PUBLICATIONS:  AN EXPENSIVE HARDCOVER MAGAZINE
DEALING WITH SEX, A SEXUAL NEWSLETTER, AND A SHORT BOOK PURPORTING TO
BE A SEXUAL AUTOBIOGRAPHY.  THE PROSECUTION CHARGED THAT THESE
PUBLICATIONS WERE OBSCENE IN THE CONTEXT OF THEIR PRODUCTION, SALE, AND
ATTENDANT PUBLICITY.  BESIDES TESTIMONY AS TO THE MERIT OF THE
MATERIAL, ABUNDANT EVIDENCE WAS INTRODUCED THAT EACH OF THE
PUBLICATIONS WAS ORIGINATED OR SOLD AS STOCK IN TRADE OF THE BUSINESS
OF PANDERING, I.E., THE PURVEYING OF PUBLICATIONS OPENLY ADVERTISED TO
APPEAL TO THE CUSTOMERS' EROTIC INTEREST.  MAILING PRIVILEGES WERE
SOUGHT FROM PLACES WITH SALACIOUSLY SUGGESTIVE NAMES; CIRCULARS FOR THE
MAGAZINE AND NEWSLETTER STRESSED UNRESTRICTED EXPRESSION OF SEX; AND
ADVERTISING OF THE BOOK WHICH PURPORTED TO BE OF MEDICAL AND
PSYCHIATRIC INTEREST, BUT WHOSE DISTRIBUTION WAS NOT CONFINED TO A
PROFESSIONAL AUDIENCE, DWELT ON THE BOOK'S SEXUAL IMAGERY.  IN FINDING
PETITIONERS GUILTY, THE TRIAL JUDGE APPLIED THE OBSCENITY STANDARDS
FIRST ENUNCIATED IN ROTH V. UNITED STATES, 354 U.S. 476, AND THE COURT
OF APPEALS AFFIRMED.  HELD:  EVIDENCE THAT THE PETITIONERS DELIBERATELY
REPRESENTED THE ACCUSED PUBLICATIONS AS EROTICALLY AROUSING AND
COMMERCIALLY EXPLOITED THEM AS EROTICA SOLELY FOR THE SAKE OF PRURIENT
APPEAL AMPLY SUPPORTED THE TRIAL COURT'S DETERMINATION THAT THE
MATERIAL WAS OBSCENE UNDER THE STANDARDS OF THE ROTH CASE, SUPRA.  THE
MERE FACT OF PROFIT FROM THE SALE OF THE PUBLICATION IS NOT CONSIDERED;
BUT IN A CLOSE CASE A SHOWING OF EXPLOITATION OF INTERESTS IN
TITILLATION BY PORNOGRAPHY WITH RESPECT TO MATERIAL LENDING ITSELF TO
SUCH EXPLOITATION THROUGH PERVASIVE TREATMENT OR DESCRIPTION OF SEXUAL
MATTERS SUPPORTS A DETERMINATION THAT THE MATERIAL IS OBSCENE.  PP. 470
476. 

GINZBURG ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

A JUDGE SITTING WITHOUT A JURY IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA (FN1) CONVICTED PETITIONER GINZBURG AND THREE
CORPORATIONS CONTROLLED BY HIM UPON ALL 28 COUNTS OF AN INDICTMENT
CHARGING VIOLATION OF THE FEDERAL OBSCENITY STATUTE, 18 U.S.C.  SEC.
1461 (1964 ED.).  (FN2)  224 F. SUPP. 129.  EACH COUNT ALLEGED THAT A
RESIDENT OF THE EASTERN DISTRICT RECEIVED MAILED MATTER, EITHER ONE OF
THREE PUBLICATIONS CHALLENGED AS OBSCENE, OR ADVERTISING TELLING HOW
AND WHERE THE PUBLICATIONS MIGHT BE OBTAINED.  THE COURT OF APPEALS FOR
THE THIRD CIRCUIT AFFIRMED, 338 F.2D 12.  WE GRANTED CERTIORARI, 380
U.S. 961.  WE AFFIRM.  SINCE PETITIONERS DO NOT ARGUE THAT THE TRIAL
JUDGE MISCONCEIVED OR FAILED TO APPLY THE STANDARDS WE FIRST ENUNCIATED
IN ROTH V. UNITED STATES, 354 U.S. 476, (FN3) THE ONLY SERIOUS QUESTION
IS WHETHER THOSE STANDARDS WERE CORRECTLY APPLIED.  (FN4) 

IN THE CASES IN WHICH THIS COURT HAS DECIDED OBSCENITY QUESTIONS
SINCE ROTH, IT HAS REGARDED THE MATERIALS AS SUFFICIENT IN THEMSELVES
FOR THE DETERMINATION OF THE QUESTION.  IN THE PRESENT CASE, HOWEVER,
THE PROSECUTION CHARGED THE OFFENSE IN THE CONTEXT OF THE CIRCUMSTANCES
OF PRODUCTION, SALE, AND PUBLICITY AND ASSUMED THAT, STANDING ALONE,
THE PUBLICATIONS THEMSELVES MIGHT NOT BE OBSCENE.  WE AGREE THAT THE
QUESTION OF OBSCENITY MAY INCLUDE CONSIDERATION OF THE SETTING IN WHICH
THE PUBLICATIONS WERE PRESENTED AS AN AID TO DETERMINING THE QUESTION
OF OBSCENITY, AND ASSUME WITHOUT DECIDING THAT THE PROSECUTION COULD
NOT HAVE SUCCEEDED OTHERWISE.  AS IN MISHKIN V. NEW YORK, POST, P. 502,
AND AS DID THE COURTS BELOW, 224 F. SUPP., AT 134, 338 F.2D, AT 14-15,
WE VIEW THE PUBLICATIONS AGAINST A BACKGROUND OF COMMERCIAL
EXPLOITATION OF EROTICA SOLELY FOR THE SAKE OF THEIR PRURIENT APPEAL. 
(FN5)  THE RECORD IN THAT REGARD AMPLY SUPPORTS THE DECISION OF THE
TRIAL JUDGE THAT THE MAILING OF ALL THREE PUBLICATIONS OFFENDED THE
STATUTE.  (FN6) 

THE THREE PUBLICATIONS WERE EROS, A HARD-COVER MAGAZINE OF EXPENSIVE
FORMAT; LIAISON, A BI-WEEKLY NEWSLETTER; AND THE HOUSEWIFE'S HANDBOOK
ON SELECTIVE PROMISCUITY (HEREINAFTER THE HANDBOOK), A SHORT BOOK.  THE
ISSUE OF EROS SPECIFIED IN THE INDICTMENT, VOL. 1, NO. 4, CONTAINS 15
ARTICLES AND PHOTO-ESSAYS ON THE SUBJECT OF LOVE, SEX, AND SEXUAL
RELATIONS.  THE SPECIFIED ISSUE OF LIAISON, VOL. 1, NO. 1, CONTAINS A
PREFATORY "LETTER FROM THE EDITORS" ANNOUNCING ITS DEDICATION TO
"KEEPING SEX AN ART AND PREVENTING IT FROM BECOMING A SCIENCE."  THE
REMAINDER OF THE ISSUE CONSISTS OF DIGESTS OF TWO ARTICLES CONCERNING
SEX AND SEXUAL RELATIONS WHICH HAD EARLIER APPEARED IN PROFESSIONAL
JOURNALS AND A REPORT OF AN INTERVIEW WITH A PSYCHOTHERAPIST WHO FAVORS
THE BROADEST LICENSE IN SEXUAL RELATIONSHIPS.  AS THE TRIAL JUDGE
NOTED, "WHILE THE TREATMENT IS LARGELY SUPERFICIAL, IT IS PRESENTED
ENTIRELY WITHOUT RESTRAINT OF ANY KIND.  ACCORDING TO DEFENDANTS' OWN
EXPERT, IT IS ENTIRELY WITHOUT LITERARY MERIT."  224 F. SUPP., AT 134. 
THE HANDBOOK PURPORTS TO BE A SEXUAL AUTOBIOGRAPHY DETAILING WITH
COMPLETE CANDOR THE AUTHOR'S SEXUAL EXPERIENCES FROM AGE 3 TO AGE 36. 
THE TEXT INCLUDES, AND PREFATORY AND CONCLUDING SECTIONS OF THE BOOK
ELABORATE, HER VIEWS ON SUCH SUBJECTS AS SEX EDUCATION OF CHILDREN,
LAWS REGULATING PRIVATE CONSENSUAL ADULT SEXUAL PRACTICES, AND THE
EQUALITY OF WOMEN IN SEXUAL RELATIONSHIPS.  IT WAS CLAIMED AT TRIAL
THAT WOMEN WOULD FIND THE BOOK VALUABLE, FOR EXAMPLE AS A MARRIAGE
MANUAL OR AS AN AID TO THE SEX EDUCATION OF THEIR CHILDREN. 

BESIDES TESTIMONY AS TO THE MERIT OF THE MATERIAL, THERE WAS ABUNDANT
EVIDENCE TO SHOW THAT EACH OF THE ACCUSED PUBLICATIONS WAS ORIGINATED
OR SOLD AS STOCK IN TRADE OF THE SORDID BUSINESS OF PANDERING - "THE
BUSINESS OF PURVEYING TEXTUAL OR GRAPHIC MATTER OPENLY ADVERTISED TO
APPEAL TO THE EROTIC INTEREST OF THEIR CUSTOMERS."  (FN7)  EROS EARLY
SOUGHT MAILING PRIVILEGES FROM THE POSTMASTERS OF INTERCOURSE AND BLUE
BALL, PENNSYLVANIA.  THE TRIAL COURT FOUND THE OBVIOUS, THAT THESE
HAMLETS WERE CHOSEN ONLY FOR THE VALUE THEIR NAMES WOULD HAVE IN
FURTHERING PETITIONERS' EFFORTS TO SELL THEIR PUBLICATIONS ON THE BASIS
OF SALACIOUS APPEAL; (FN8) THE FACILITIES OF THE POST OFFICES WERE
INADEQUATE TO HANDLE THE ANTICIPATED VOLUME OF MAIL, AND THE PRIVILEGES
WERE DENIED.  MAILING PRIVILEGES WERE THEN OBTAINED FROM THE POSTMASTER
OF MIDDLESEX, NEW JERSEY.  EROS AND LIAISON THEREAFTER MAILED SEVERAL
MILLION CIRCULARS SOLICITING SUBSCRIPTIONS FROM THAT POST OFFICE:  OVER
5,500 COPIES OF THE HANDBOOK WERE MAILED. 

THE "LEER OF THE SENSUALIST" ALSO PERMEATES THE ADVERTISING FOR THE
THREE PUBLICATIONS.  THE CIRCULARS SENT FOR EROS AND LIAISON STRESSED
THE SEXUAL CANDOR OF THE RESPECTIVE PUBLICATIONS, AND OPENLY BOASTED
THAT THE PUBLISHERS WOULD TAKE FULL ADVANTAGE OF WHAT THEY REGARDED AS
AN UNRESTRICTED LICENSE ALLOWED BY LAW IN THE EXPRESSION OF SEX AND
SEXUAL MATTERS.  (FN9)  THE ADVERTISING FOR THE HANDBOOK, APPARENTLY
MAILED FROM NEW YORK, CONSISTED ALMOST ENTIRELY OF A REPRODUCTION OF
THE INTRODUCTION OF THE BOOK, WRITTEN BY ONE DR. ALBERT ELLIS. 
ALTHOUGH HE ALLUDES TO THE BOOK'S INFORMATIONAL VALUE AND ITS PUTATIVE
THERAPEUTIC USEFULNESS, HIS REMARKS ARE PREOCCUPIED WITH THE BOOK'S
SEXUAL IMAGERY.  THE SOLICITATION WAS INDISCRIMINATE, NOT LIMITED TO
THOSE, SUCH AS PHYSICIANS OR PSYCHIATRISTS, WHO MIGHT INDEPENDENTLY
DISCERN THE BOOK'S THERAPEUTIC WORTH.  (FN10)  INSERTED IN EACH
ADVERTISEMENT WAS A SLIP LABELED "GUARANTEE" AND READING, "DOCUMENTARY
BOOKS, INC. UNCONDITIONALLY GUARANTEES FULL REFUND OF THE PRICE OF THE
HOUSEWIFE'S HANDBOOK ON SELECTIVE PROMISCUITY IF THE BOOK FAILS TO
REACH YOU BECAUSE OF U.S. POST OFFICE CENSORSHIP INTERFERENCE." 
SIMILAR SLIPS APPEARED IN THE ADVERTISING FOR EROS AND LIAISON; THEY
HIGHLIGHTED THE GLOSS PETITIONERS PUT ON THE PUBLICATIONS, ELIMINATING
ANY DOUBT WHAT THE PURCHASER WAS BEING ASKED TO BUY.  (FN11) 

THIS EVIDENCE, IN OUR VIEW, WAS RELEVANT IN DETERMINING THE ULTIMATE
QUESTION OF OBSCENITY AND, IN THE CONTEXT OF THIS RECORD, SERVES TO
RESOLVE ALL AMBIGUITY AND DOUBT.  THE DELIBERATE REPRESENTATION OF
PETITIONERS' PUBLICATIONS AS EROTICALLY AROUSING, FOR EXAMPLE,
STIMULATED THE READER TO ACCEPT THEM AS PRURIENT; HE LOOKS FOR
TITILLATION, NOT FOR SAVING INTELLECTUAL CONTENT.  SIMILARLY, SUCH
REPRESENTATION WOULD TEND TO FORCE PUBLIC CONFRONTATION WITH THE
POTENTIALLY OFFENSIVE ASPECTS OF THE WORK; THE BRAZENNESS OF SUCH AN
APPEAL HEIGHTENS THE OFFENSIVENESS OF THE PUBLICATIONS TO THOSE WHO ARE
OFFENDED BY SUCH MATERIAL.  AND THE CIRCUMSTANCES OF PRESENTATION AND
DISSEMINATION OF MATERIAL ARE EQUALLY RELEVANT TO DETERMINING WHETHER
SOCIAL IMPORTANCE CLAIMED FOR MATERIAL IN THE COURTROOM WAS, IN THE
CIRCUMSTANCES, PRETENSE OR REALITY - WHETHER IT WAS THE BASIS UPON
WHICH IT WAS TRADED IN THE MARKETPLACE OR A SPURIOUS CLAIM FOR
LITIGATION PURPOSES.  WHERE THE PURVEYOR'S SOLE EMPHASIS IS ON THE
SEXUALLY PROVOCATIVE ASPECTS OF HIS PUBLICATIONS, THAT FACT MAY BE
DECISIVE IN THE DETERMINATION OF OBSCENITY.  CERTAINLY IN A PROSECUTION
WHICH, AS HERE, DOES NOT NECESSARILY IMPLY SUPPRESSION OF THE MATERIALS
INVOLVED, THE FACT THAT THEY ORIGINATE OR ARE USED AS A SUBJECT OF
PANDERING IS RELEVANT TO THE APPLICATION OF THE ROTH TEST. 

A PROPOSITION ARGUED AS TO EROS, FOR EXAMPLE, IS THAT THE TRIAL JUDGE
IMPROPERLY FOUND THE MAGAZINE TO BE OBSCENE AS A WHOLE, SINCE HE
CONCLUDED THAT ONLY FOUR OF THE 15 ARTICLES PREDOMINANTLY APPEALED TO
PRURIENT INTEREST AND SUBSTANTIALLY EXCEEDED COMMUNITY STANDARDS OF
CANDOR, WHILE THE OTHER ARTICLES WERE ADMITTEDLY NONOFFENSIVE.  BUT THE
TRIAL JUDGE FOUND THAT "THE DELIBERATE AND STUDIED ARRANGEMENT OF EROS
IS EDITORIALIZED FOR THE PURPOSE OF APPEALING PREDOMINANTLY TO PRURIENT
INTEREST AND TO INSULATE THROUGH THE INCLUSION OF NONOFFENSIVE
MATERIAL."  224 F. SUPP., AT 131.  HOWEVER ERRONEOUS SUCH A CONCLUSION
MIGHT BE IF UNSUPPORTED BY THE EVIDENCE OF PANDERING, THE RECORD HERE
SUPPORTS IT.  EROS WAS CREATED, REPRESENTED AND SOLD SOLELY AS A
CLAIMED INSTRUMENT OF THE SEXUAL STIMULATION IT WOULD BRING.  LIKE THE
OTHER PUBLICATIONS, ITS PERVASIVE TREATMENT OF SEX AND SEXUAL MATTERS
RENDERED IT AVAILABLE TO EXPLOITATION BY THOSE WHO WOULD MAKE A
BUSINESS OF PANDERING TO "THE WIDESPREAD WEAKNESS FOR TITILLATION BY
PORNOGRAPHY."  (FN12)  PETITIONERS' OWN EXPERT AGREED, CORRECTLY WE
THINK, THAT "IF THE OBJECT OF A WORK IS MATERIAL GAIN FOR THE CREATOR
THROUGH AN APPEAL TO THE SEXUAL CURIOSITY AND APPETITE," THE WORK IS
PORNOGRAPHIC.  IN OTHER WORDS, BY ANIMATING SENSUAL DETAIL TO GIVE THE
PUBLICATION A SALACIOUS CAST, PETITIONERS REINFORCED WHAT IS CONCEDED
BY THE GOVERNMENT TO BE AN OTHERWISE DEBATABLE CONCLUSION. 

A SIMILAR ANALYSIS APPLIED TO THE JUDGMENT REGARDING THE HANDBOOK. 
THE BULK OF THE PROOFS DIRECTED TO SOCIAL IMPORTANCE CONCERNED THIS
PUBLICATION.  BEFORE SELLING PUBLICATION RIGHTS TO PETITIONERS, ITS
AUTHOR HAD PRINTED IT PRIVATELY; SHE SENT CIRCULARS TO PERSONS WHOSE
NAMES APPEARED ON MEMBERSHIP LISTS OF MEDICAL AND PSYCHIATRIC
ASSOCIATIONS, ASSERTING ITS VALUE AS AN ADJUNCT TO THERAPY.  OVER
12,000 SALES RESULTED FROM THIS SOLICITATION, AND A NUMBER OF WITNESSES
TESTIFIED THAT THEY FOUND THE WORK USEFUL IN THEIR PROFESSIONAL
PRACTICE.  THE GOVERNMENT DOES NOT SERIOUSLY CONTEST THE CLAIM THAT THE
BOOK HAS WORTH IN SUCH A CONTROLLED, OR EVEN NEUTRAL, ENVIRONMENT. 
PETITIONERS, HOWEVER, DID NOT SELL THE BOOK TO SUCH A LIMITED AUDIENCE,
OR FOCUS THEIR CLAIMS FOR IT ON ITS SUPPOSED THERAPEUTIC OR EDUCATIONAL
VALUE; RATHER, THEY DELIBERATELY EMPHASIZED THE SEXUALLY PROVOCATIVE
ASPECTS OF THE WORK, IN ORDER TO CATCH THE SALACIOUSLY DISPOSED.  THEY
PROCLAIMED ITS OBSCENITY; AND WE CANNOT CONCLUDE THAT THE COURT BELOW
ERRED IN TAKING THEIR OWN EVALUATION AT ITS FACE VALUE AND DECLARING
THE BOOK AS A WHOLE OBSCENE DESPITE THE OTHER EVIDENCE.  (FN13) 

THE DECISION IN UNITED STATES V. REBHUHN, 109 F.2D 512, IS PERSUASIVE
AUTHORITY FOR OUR CONCLUSION.  (FN14)  THAT WAS A PROSECUTION UNDER THE
PREDECESSOR TO SEC. 1461, BROUGHT IN THE CONTEXT OF PANDERING OF
PUBLICATIONS ASSUMED USEFUL TO SCHOLARS AND MEMBERS OF LEARNED
PROFESSIONS.  THE BOOKS INVOLVED WERE WRITTEN BY AUTHORS PROVED IN MANY
INSTANCES TO HAVE BEEN MEN OF SCIENTIFIC STANDING, AS ANTHROPOLOGISTS
OR PSYCHIATRISTS.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
THEREFORE ASSUMED THAT MANY OF THE BOOKS WERE ENTITLED TO THE
PROTECTION OF THE FIRST AMENDMENT, AND "COULD LAWFULLY HAVE PASSED
THROUGH THE MAILS, IF DIRECTED TO THOSE WHO WOULD BE LIKELY TO USE THEM
FOR THE PURPOSES FOR WHICH THEY WERE WRITTEN  ...  ."  109 F.2D, AT
514.  BUT THE EVIDENCE, AS HERE, WAS THAT THE DEFENDANTS HAD NOT
DISSEMINATED THEM FOR THEIR "PROPER USE, BUT  ...  WOEFULLY MISUSED
THEM, AND IT WAS THAT MISUSE WHICH CONSTITUTED THE GRAVAMEN OF THE
CRIME."  ID., AT 515.  SPEAKING FOR THE COURT IN AFFIRMING THE
CONVICTION, JUDGE LEARNED HAND SAID: 

"  ...  THE WORKS THEMSELVES HAD A PLACE, THOUGH A LIMITED ONE, IN
ANTHROPOLOGY AND IN PSYCHOTHERAPY.  THEY MIGHT ALSO HAVE BEEN LAWFULLY
SOLD TO LAYMEN WHO WISHED SERIOUSLY TO STUDY THE SEXUAL PRACTICES OF
SAVAGE OR BARBAROUS PEOPLES, OR SEXUAL ABERRATIONS; IN OTHER WORDS,
MOST OF THEM WERE NOT OBSCENE PER SE.  IN SEVERAL DECISIONS WE HAVE
HELD THAT THE STATUTE DOES NOT IN ALL CIRCUMSTANCES FORBID THE
DISSEMINATION OF SUCH PUBLICATIONS  ...  .  HOWEVER, IN THE CASE AT
BAR, THE PROSECUTION SUCCEEDED  ...  WHEN IT SHOWED THAT THE DEFENDANTS
HAD INDISCRIMINATELY FLOODED THE MAILS WITH ADVERTISEMENTS, PLAINLY
DESIGNED MERELY TO CATCH THE PRURIENT, THOUGH UNDER THE GUISE OF
DISTRIBUTING WORKS OF SCIENTIFIC OR LITERARY MERIT.  WE DO NOT MEAN
THAT THE DISTRIBUTOR OF SUCH WORKS IS CHARGED WITH A DUTY TO INSURE
THAT THEY SHALL REACH ONLY PROPER HANDS, NOR NEED WE SAY WHAT CARE HE
MUST USE, FOR THESE DEFENDANTS EXCEEDED ANY POSSIBLE LIMIT; THE
CIRCULARS WERE NO MORE THAN APPEALS TO THE SALACIOUSLY DISPOSED, AND NO
FACT FINDER COULD HAVE FAILED TO PIERCE THE FRAGILE SCREEN, SET UP TO
COVER THAT PURPOSE."  109 F.2D, AT 514-515. 

WE PERCEIVE NO THREAT TO FIRST AMENDMENT GUARANTEES IN THUS HOLDING
THAT IN CLOSE CASES EVIDENCE OF PANDERING MAY BE PROBATIVE WITH RESPECT
TO THE NATURE OF THE MATERIAL IN QUESTION AND THUS SATISFY THE ROTH
TEST.  (FN15)  NO WEIGHT IS ASCRIBED TO THE FACT THAT PETITIONERS HAVE
PROFITED FROM THE SALE OF PUBLICATIONS WHICH WE HAVE ASSUMED BUT DO NOT
HOLD CANNOT THEMSELVES BE ADJUDGED OBSCENE IN THE ABSTRACT; TO SANCTION
CONSIDERATION OF THIS FACT MIGHT INDEED INDUCE SELF-CENSORSHIP, AND
OFFEND THE FREQUENTLY STATED PRINCIPLE THAT COMMERCIAL ACTIVITY, IN
ITSELF, IS NO JUSTIFICATION FOR NARROWING THE PROTECTION OF EXPRESSION
SECURED BY THE FIRST AMENDMENT.  (FN16) RATHER, THE FACT THAT EACH OF
THESE PUBLICATIONS WAS CREATED OR EXPLOITED ENTIRELY ON THE BASIS OF
ITS APPEAL TO PRURIENT INTERESTS (FN17) STRENGTHENS THE CONCLUSION THAT
THE TRANSACTIONS HERE WERE SALES OF ILLICIT MERCHANDISE, NOT SALES OF
CONSTITUTIONALLY PROTECTED MATTER.  (FN18)  A CONVICTION FOR MAILING
OBSCENE PUBLICATIONS, BUT EXPLAINED IN PART BY THE PRESENCE OF THIS
ELEMENT, DOES NOT NECESSARILY SUPPRESS THE MATERIALS IN QUESTION, NOR
CHILL THEIR PROPER DISTRIBUTION FOR A PROPER USE.  NOR SHOULD IT
INHIBIT THE ENTERPRISE OF OTHERS SEEKING THROUGH SERIOUS ENDEAVOR TO
ADVANCE HUMAN KNOWLEDGE OR UNDERSTANDING IN SCIENCE, LITERATURE, OR
ART. ALL THAT WILL HAVE BEEN DETERMINED IS THAT QUESTIONABLE
PUBLICATIONS ARE OBSCENE IN A CONTEXT WHICH BRANDS THEM AS OBSCENE AS
THAT TERM IS DEFINED IN ROTH - A USE INCONSISTENT WITH ANY CLAIM TO THE
SHELTER OF THE FIRST AMENDMENT.  (FN19)  "THE NATURE OF THE MATERIALS
IS, OF COURSE, RELEVANT AS AN ATTRIBUTE OF THE DEFENDANT'S CONDUCT, BUT
THE MATERIALS ARE THUS PLACED IN CONTEXT FROM WHICH THEY DRAW COLOR AND
CHARACTER.  A WHOLLY DIFFERENT RESULT MIGHT BE REACHED IN A DIFFERENT
SETTING."  ROTH V. UNITED STATES, 354 U.S., AT 495 (WARREN, C.J.,
CONCURRING). 

IT IS IMPORTANT TO STRESS THAT THIS ANALYSIS SIMPLY ELABORATES THE
TEST BY WHICH THE OBSCENITY VEL NON OF THE MATERIAL MUST BE JUDGED. 
WHERE AN EXPLOITATION OF INTERESTS IN TITILLATION BY PORNOGRAPHY IS
SHOWN WITH RESPECT TO MATERIAL LENDING ITSELF TO SUCH EXPLOITATION
THROUGH PERVASIVE TREATMENT OR DESCRIPTION OF SEXUAL MATTERS, SUCH
EVIDENCE MAY SUPPORT THE DETERMINATION THAT THE MATERIAL IS OBSCENE
EVEN THOUGH IN OTHER CONTEXTS THE MATERIAL WOULD ESCAPE SUCH
CONDEMNATION. 

PETITIONERS RAISE SEVERAL PROCEDURAL OBJECTIONS, PRINCIPALLY DIRECTED
TO THE FINDINGS WHICH ACCOMPANIED THE TRIAL COURT'S MEMORANDUM OPINION,
FED. RULES CRIM. PROC. 23.  EVEN ON THE ASSUMPTION THAT PETITIONERS'
OBJECTIONS ARE WELL TAKEN, WE PERCEIVE NO ERROR AFFECTING THEIR
SUBSTANTIAL RIGHTS.  AFFIRMED. 

FN1  NO CHALLENGE WAS OR IS MADE TO VENUE UNDER 18 U.S.C. SEC. 3237
(1964 ED.). 

FN2 THE FEDERAL OBSCENITY STATUTE, 18 U.S.C. SEC. 1461, PROVIDES IN
PERTINENT PART: 

"EVERY OBSCENE, LEWD, LASCIVIOUS, INDECENT, FILTHY OR VILE ARTICLE,
MATTER, THING, DEVICE, OR SUBSTANCE; AND: 

     *         *         *         *         * 

"EVERY WRITTEN OR PRINTED CARD, LETTER, CIRCULAR, BOOK, PAMPHLET,
ADVERTISEMENT, OR NOTICE OF ANY KIND GIVING INFORMATION, DIRECTLY OR
INDIRECTLY, WHERE, OR HOW, OR FROM WHOM, OR BY WHAT MEANS ANY OF SUCH
MENTIONED MATTERS  ...  MAY BE OBTAINED  ...  . 

     *         *         *         *         * 

"IS DECLARED TO BE NONMAILABLE MATTER AND SHALL NOT BE CONVEYED IN
THE MAILS OR DELIVERED FROM ANY POST OFFICE OR BY ANY LETTER CARRIER. 

"WHOEVER KNOWINGLY USES THE MAILS FOR THE MAILING, CARRIAGE IN THE
MAILS, OR DELIVERY OF ANYTHING DECLARED BY THIS SECTION TO BE
NONMAILABLE  ...  SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT
MORE THAN FIVE YEARS, OR BOTH, FOR THE FIRST SUCH OFFENSE  ...  ." 

FN3  WE ARE NOT, HOWEVER, TO BE UNDERSTOOD AS APPROVING ALL ASPECTS
OF THE TRIAL JUDGE'S EXEGESIS OF ROTH, FOR EXAMPLE HIS REMARKS THAT
"THE COMMUNITY AS A WHOLE IS THE PROPER CONSIDERATION.  IN THIS
COMMUNITY, OUR SOCIETY, WE HAVE CHILDREN OF ALL AGES, PSYCHOTICS,
FEEBLE-MINDED AND OTHER SUSCEPTIBLE ELEMENTS.  JUST AS THEY CANNOT SET
THE PACE FOR THE AVERAGE ADULT READER'S TASTE, THEY CANNOT BE
OVERLOOKED AS PART OF THE COMMUNITY."  224 F. SUPP., AT 137.  COMPARE
BUTLER V. MICHIGAN, 352 U.S. 380. 

FN4  THE GOVERNMENT STIPULATED AT TRIAL THAT THE CIRCULARS
ADVERTISING THE PUBLICATIONS WERE NOT THEMSELVES OBSCENE; THEREFORE THE
CONVICTIONS ON THE COUNTS FOR MAILING THE ADVERTISING STAND ONLY IF THE
MAILING OF THE PUBLICATIONS OFFENDED THE STATUTE. 

FN5  OUR AFFIRMANCE OF THE CONVICTIONS FOR MAILING EROS AND LIAISON
IS BASED UPON THEIR CHARACTERISTICS AS A WHOLE, INCLUDING THEIR
EDITORIAL FORMATS, AND NOT UPON PARTICULAR ARTICLES CONTAINED,
DIGESTED, OR EXCERPTED IN THEM.  THUS WE DO NOT DECIDE WHETHER
PARTICULAR ARTICLES, FOR EXAMPLE, IN EROS, ALTHOUGH IDENTIFIED BY THE
TRIAL JUDGE AS OFFENSIVE, SHOULD BE CONDEMNED AS OBSCENE WHATEVER THEIR
SETTING.  SIMILARLY, WE ACCEPT THE GOVERNMENT'S CONCESSION, NOTE 13,
INFRA, THAT THE PROSECUTION RESTED UPON THE MANNER IN WHICH THE
PETITIONERS SOLD THE HANDBOOK; THUS OUR AFFIRMANCE IMPLIES NO AGREEMENT
WITH THE TRIAL JUDGE'S CHARACTERIZATIONS OF THE BOOK OUTSIDE THAT
SETTING. 

FN6  IT IS SUGGESTED IN DISSENT THAT PETITIONERS WERE UNAWARE THAT
THE RECORD BEING ESTABLISHED COULD BE USED IN SUPPORT OF SUCH AN
APPROACH, AND THAT PETITIONERS SHOULD BE AFFORDED THE OPPORTUNITY OF A
NEW TRIAL.  HOWEVER, THE TRIAL TRANSCRIPT CLEARLY REVEALS THAT AT
SEVERAL POINTS THE GOVERNMENT ANNOUNCED ITS THEORY THAT MADE THE MODE
OF DISTRIBUTION RELEVANT TO THE DETERMINATION OF OBSCENITY, AND THE
TRIAL COURT ADMITTED EVIDENCE, OTHERWISE IRRELEVANT, TOWARD THAT END. 

FN7  ROTH V. UNITED STATES, SUPRA, 354 U.S., AT 495-496 (WARREN,
C.J., CONCURRING). 

FN8  EVIDENCE RELATING TO PETITIONERS' EFFORTS TO SECURE MAILING
PRIVILEGES FROM THESE POST OFFICES WAS, CONTRARY TO THE SUGGESTION OF
MR. JUSTICE HARLAN IN DISSENT, INTRODUCED FOR THE PURPOSE OF SUPPORTING
SUCH A FINDING.  SCIENTER HAD BEEN STIPULATED PRIOR TO TRIAL.  THE
GOVERNMENT'S POSITION WAS REVEALED IN THE FOLLOWING COLLOQUY, WHICH
OCCURRED WHEN IT SOUGHT TO INTRODUCE A LETTER TO THE POSTMASTER OF BLUE
BALL, PENNSYLVANIA: 

"THE COURT.  WHO SIGNED THE LETTER? 

"MR. CREAMER.  IT IS SIGNED BY FRANK R. BRADY, ASSOCIATE PUBLISHER OF
MR. GINZBURG.  IT IS ON EROS MAGAZINE, INCORPORATED'S STATIONERY. 

"THE COURT.  AND YOUR OBJECTION IS: 

"MR. SHAPIRO.  IT IS IN NO WAY RELEVANT TO THE PARTICULAR ISSUE OR
PUBLICATION UPON WHICH THE DEFENDANT HAS BEEN INDICTED AND IN MY VIEW,
EVEN IF THERE WAS AN IDENTIFICATION WITH RESPECT TO A PARTICULAR ISSUE,
IT WOULD BE OF DOUBTFUL RELEVANCE IN THAT EVENT. 

"THE COURT.  ANYTHING ELSE TO SAY? 

"MR. CREAMER.  IF YOUR HONOR PLEASES, THERE IS A STATEMENT IN THIS
LETTER INDICATING THAT IT WOULD BE ADVANTAGEOUS TO THIS PUBLICATION TO
HAVE IT DISSEMINATED THROUGH BLUE BALL, PENNSYLVANIA, POST OFFICE.  I
THINK THIS CLEARLY GOES TO INTENT, AS TO WHAT THE PURPOSE OF PUBLISHING
THESE MAGAZINES WAS.   AT LEAST, IT CLEARLY ESTABLISHES ONE OF THE
REASONS WHY THEY WERE DISSEMINATING THIS MATERIAL. 

"THE COURT.  ADMITTED." 

FN9  THUS, ONE EROS ADVERTISEMENT CLAIMED: 

"EROS IS A CHILD OF ITS TIMES  ...  .  IT IS THE RESULT OF RECENT
COURT DECISIONS THAT HAVE REALISTICALLY INTERPRETED AMERICA'S OBSCENITY
LAWS AND THAT HAVE GIVEN TO THIS COUNTRY A NEW BREADTH OF FREEDOM OF
EXPRESSION  ...  .  EROS TAKES FULL ADVANTAGE OF THIS NEW FREEDOM OF
EXPRESSION.  IT IS THE MAGAZINE OF SEXUAL CANDOR." 

IN ANOTHER, MORE LAVISH SPREAD: 

"EROS IS A NEW QUARTERLY DEVOTED TO THE SUBJECTS OF LOVE AND SEX.  IN
THE FEW SHORT WEEKS SINCE ITS BIRTH, EROS HAS ESTABLISHED ITSELF AS THE
RAVE OF THE AMERICAN INTELLECTUAL COMMUNITY - AND THE RAGE OF PRUDES
EVERYWHERE]  AND IT'S NO WONDER: EROS HANDLES THE SUBJECTS OF LOVE AND
SEX WITH COMPLETE CANDOR.  THE PUBLICATION OF THIS MAGAZINE - WHICH IS
FRANKLY AND AVOWEDLY CONCERNED WITH EROTICA - HAS BEEN ENABLED BY
RECENT COURT DECISIONS RULING THAT A LITERARY PIECE OR PAINTING, THOUGH
EXPLICITLY SEXUAL IN CONTENT, HAS A RIGHT TO BE PUBLISHED IF IT IS A
GENUINE WORK OF ART. 

"EROS IS A GENUINE WORK OF ART  ... ." 

AN UNDISCLOSED NUMBER OF ADVERTISEMENTS FOR LIAISON WERE MAILED.  THE
OUTER ENVELOPES OF THESE ADS ASK, "ARE YOU AMONG THE CHOSEN FEW?"  THE
FIRST LINE OF THE ADVERTISEMENT ELIMINATES THE AMBIGUITY: 

"ARE YOU A MEMBER OF THE SEXUAL ELITE?"  IT CONTINUES: 

"THAT IS, ARE YOU AMONG THE FEW HAPPY AND ENLIGHTENED INDIVIDUALS WHO
BELIEVE THAT A MAN AND WOMAN CAN MAKE LOVE WITHOUT FEELING PANGS OF
CONSCIENCE?  CAN YOU READ ABOUT LOVE AND SEX AND DISCUSS THEM WITHOUT
BLUSHING AND STAMMERING? 

"IF SO, YOU OUGHT TO KNOW ABOUT AN IMPORTANT NEW PERIODICAL CALLED
LIAISON. 

     *         *         *         *    * 

"IN SHORT, LIAISON IS CUPID'S CHRONICLE  ...  . 

"THOUGH LIAISON HANDLES THE SUBJECTS OF LOVE AND SEX WITH COMPLETE
CANDOR, I WISH TO MAKE IT CLEAR THAT IT IS NOT A SCANDAL SHEET AND IT
IS NOT WRITTEN FOR THE MAN IN THE STREET.  LIAISON IS AIMED AT
INTELLIGENT, EDUCATED ADULTS WHO CAN ACCEPT LOVE AND SEX AS PART OF
LIFE. 

"  ...  I'LL VENTURE TO SAY THAT AFTER YOU'VE READ YOUR FIRST BI
WEEKLY ISSUE, LIAISON WILL BE YOUR MOST EAGERLY AWAITED PIECE OF
MAIL." 

FN10  NOTE 13, INFRA. 

FN11  THERE IS MUCH ADDITIONAL EVIDENCE SUPPORTING THE CONCLUSION OF
PETITIONERS' PANDERING.  ONE OF PETITIONERS' FORMER WRITERS FOR
LIAISON, FOR EXAMPLE, TESTIFIED ABOUT THE EDITORIAL GOALS AND PRACTICES
OF THAT PUBLICATION. 

FN12  SCHWARTZ, MORALS OFFENSES AND THE MODEL PENAL CODE, 63 COL. L.
REV. 669, 677 (1963). 

FN13  THE GOVERNMENT DREW A DISTINCTION BETWEEN THE AUTHOR'S AND
PETITIONERS' SOLICITATION.  AT THE SENTENCING PROCEEDING THE UNITED
STATES ATTORNEY STATED: 

"  ...  THE AUTHOR WAS DISTRIBUTING  ...  ONLY TO PHYSICIANS; SHE
NEVER HAD WIDESPREAD, INDISCRIMINATE DISTRIBUTION OF THE HANDBOOK, AND,
CONSEQUENTLY, THE POST OFFICE DEPARTMENT DID NOT INTERFERE  ...  .  IF
MR. GINZBURG HAD DISTRIBUTED AND SOLD AND ADVERTISED THESE BOOKS SOLELY
TO ...  PHYSICIANS  ...  WE, OF COURSE, WOULD NOT BE HERE THIS MORNING
WITH REGARD TO THE HOUSEWIFE'S HANDBOOK  ...  ." 

FN14  THE PROPOSED OFFICIAL DRAFT OF THE ALI MODEL PENAL CODE
LIKEWISE RECOGNIZES THE QUESTION OF PANDERING AS RELEVANT TO THE
OBSCENITY ISSUE, SEC. 251.4(4); TENTATIVE DRAFT NO. 6 (MAY 6, 1957),
PP. 1-3, 13-17, 45-46, 53; SCHWARTZ, SUPRA, N. 12; SEE CRAIG,
SUPPRESSED BOOKS, 195-206 (1963).  COMPARE GROVE PRESS, INC. V.
CHRISTENBERRY, 175 F. SUPP. 488, 496-497 (D.C.S.D.N.Y. 1959), AFF'D 276
F.2D 433 (C.A.2D CIR. 1960); UNITED STATES V. ONE BOOK ENTITLED
ULYSSES, 72 F.2D 705, 707 (C.A.2D CIR. 1934), AFFIRMING 5 F. SUPP. 182
(D.C.S.D.N.Y. 1933).  SEE ALSO THE TRIAL OF LADY CHATTERLY - REGINA V.
PENGUIN BOOKS, LTD. (ROLPH.  ED. 1961). 

FN15  OUR CONCLUSION IS CONSISTENT WITH THE STATUTORY SCHEME. 
ALTHOUGH SEC. 1461, IN REFERRING TO "OBSCENE  ...  MATTER" MAY APPEAR
TO DEAL WITH THE QUALITIES OF MATERIAL IN THE ABSTRACT, IT IS SETTLED
THAT THE MODE OF DISTRIBUTION MAY BE A SIGNIFICANT PART IN THE
DETERMINATION OF THE OBSCENITY OF THE MATERIAL INVOLVED.  UNITED STATES
V. REBHUHN, SUPRA.  BECAUSE THE STATUTE CREATES A CRIMINAL REMEDY, CF.
MANUAL ENTERPRISES V. DAY, 370 U.S. 478, 495 (OPINION OF BRENNAN, J.),
IT READILY ADMITS SUCH AN INTERPRETATION, COMPARE UNITED STATES V. 31
PHOTOGRAPHS, ETC., 156 F. SUPP. 350 (D.C.S.D.N.Y. 1957). 

FN16  SEE NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 265-266; SMITH V.
CALIFORNIA, 361 U.S. 147, 150. 

FN17  SEE VALENTINE V. CHRESTENSEN, 316 U.S. 52, WHERE THE COURT
VIEWED HANDBILLS PURPORTING TO CONTAIN PROTECTED EXPRESSION AS MERELY
COMMERCIAL ADVERTISING.  COMPARE THAT DECISION WITH JAMISON V. TEXAS,
318 U.S. 413, AND MURDOCK V. PENNSYLVANIA, 319 U.S. 105, WHERE SPEECH
HAVING THE CHARACTERISTICS OF ADVERTISING WAS HELD TO BE AN INTEGRAL
PART OF RELIGIOUS DISCUSSIONS AND HENCE PROTECTED.  MATERIAL SOLD
SOLELY TO PRODUCE SEXUAL AROUSAL, LIKE COMMERCIAL ADVERTISING, DOES NOT
ESCAPE REGULATION BECAUSE IT HAS BEEN DRESSED UP AS SPEECH, OR IN OTHER
CONTEXTS MIGHT BE RECOGNIZED AS SPEECH. 

FN18  COMPARE BREARD V. ALEXANDRIA, 341 U.S. 622, WITH MARTIN V.
STRUTHERS, 319 U.S. 141.  CF. KOVACS V. COOPER, 336 U.S. 77; GIBONEY V.
EMPIRE STORAGE CO., 336 U.S. 490; COX V. LOUISIANA, 379 U.S. 536, 559. 

FN19  ONE WHO ADVERTISES AND SELLS A WORK ON THE BASIS OF ITS
PRURIENT APPEAL IS NOT THREATENED BY THE PERHAPS INHERENT RESIDUAL
VAGUENESS OF THE ROTH TEST, CF. DOMBROWSKI V. PFISTER, 380 U.S. 479,
486-487, 491-492; SUCH BEHAVIOR IS CENTRAL TO THE OBJECTIVES OF
CRIMINAL OBSCENITY LAWS.  ALI MODEL PENAL CODE, TENTATIVE DRAFT NO. 6
(MAY 6, 1957), PP. 1-3, 13-17; COMMENTS TO THE PROPOSED OFFICIAL DRAFT
SEC. 251.4, SUPRA; SCHWARTZ, MORALS OFFENSES AND THE MODEL PENAL CODE,
63 COL. L. REV. 669, 677-681 (1963); PAUL & SCHWARTZ, FEDERAL
CENSORSHIP - OBSCENITY IN THE MAIL, 212-219 (1961); SEE MISHKIN V. NEW
YORK, POST, P. 502, AT 507, N. 5. 

MR. JUSTICE BLACK, DISSENTING. 

ONLY ONE STARK FACT EMERGES WITH CLARITY OUT OF THE CONFUSING WELTER
OF OPINIONS AND THOUSANDS OF WORDS WRITTEN IN THIS AND TWO OTHER CASES
TODAY.  (FN1)  THAT FACT IS THAT GINZBURG, PETITIONER HERE, IS NOW
FINALLY AND AUTHORITATIVELY CONDEMNED TO SERVE FIVE YEARS IN PRISON FOR
DISTRIBUTING PRINTED MATTER ABOUT SEX WHICH NEITHER GINZBURG NOR ANYONE
ELSE COULD POSSIBLY HAVE KNOWN TO BE CRIMINAL.  SINCE, AS I HAVE SAID
MANY TIMES, I BELIEVE THE FEDERAL GOVERNMENT IS WITHOUT ANY POWER
WHATEVER UNDER THE CONSTITUTION TO PUT ANY TYPE OF BURDEN ON SPEECH AND
EXPRESSION OF IDEAS OF ANY KIND (AS DISTINGUISHED FROM CONDUCT), I
AGREE WITH PART II OF THE DISSENT OF MY BROTHER DOUGLAS IN THIS CASE,
AND I WOULD REVERSE GINZBURG'S CONVICTION ON THIS GROUND ALONE.  EVEN
ASSUMING, HOWEVER, THAT THE COURT IS CORRECT IN HOLDING TODAY THAT
CONGRESS DOES HAVE POWER TO CLAMP OFFICIAL CENSORSHIP ON SOME SUBJECTS
SELECTED BY THE COURT, IN SOME WAYS APPROVED BY IT, I BELIEVE THAT THE
FEDERAL OBSCENITY STATUTE AS ENACTED BY CONGRESS AND AS ENFORCED BY THE
COURT AGAINST GINZBURG IN THIS CASE SHOULD BE HELD INVALID ON TWO OTHER
GROUNDS. 

 I. 

CRIMINAL PUNISHMENT BY GOVERNMENT, ALTHOUGH UNIVERSALLY RECOGNIZED AS
A NECESSITY IN LIMITED AREAS OF CONDUCT, IS AN EXERCISE OF ONE OF
GOVERNMENT'S MOST AWESOME AND DANGEROUS POWERS.  CONSEQUENTLY, WISE AND
GOOD GOVERNMENTS MAKE ALL POSSIBLE EFFORTS TO HEDGE THIS DANGEROUS
POWER BY RESTRICTING IT WITHIN EASILY IDENTIFIABLE BOUNDARIES. 
EXPERIENCE, AND WISDOM FLOWING OUT OF THAT EXPERIENCE, LONG AGO LED TO
THE BELIEF THAT AGENTS OF GOVERNMENT SHOULD NOT BE VESTED WITH POWER
AND DISCRETION TO DEFINE AND PUNISH AS CRIMINAL PAST CONDUCT WHICH HAD
NOT BEEN CLEARLY DEFINED AS A CRIME IN ADVANCE.   TO THIS END, AT LEAST
IN PART, WRITTEN LAWS CAME INTO BEING, MARKING THE BOUNDARIES OF
CONDUCT FOR WHICH PUBLIC AGENTS COULD THEREAFTER IMPOSE PUNISHMENT UPON
PEOPLE.  IN CONTRAST, BAD GOVERNMENTS EITHER WROTE NO GENERAL RULES OF
CONDUCT AT ALL, LEAVING THAT HIGHLY IMPORTANT TASK TO THE UNBRIDLED
DISCRETION OF GOVERNMENT AGENTS AT THE MOMENT OF TRIAL, OR SOMETIMES,
HISTORY TELLS US, WROTE THEIR LAWS IN AN UNKNOWN TONGUE SO THAT PEOPLE
COULD NOT UNDERSTAND THEM OR ELSE PLACED THEIR WRITTEN LAWS AT SUCH
INACCESSIBLE SPOTS THAT PEOPLE COULD NOT READ THEM.  IT SEEMS TO ME
THAT THESE HARSH EXPEDIENTS USED BY BAD GOVERNMENTS TO PUNISH PEOPLE
FOR CONDUCT NOT PREVIOUSLY CLEARLY MARKED AS CRIMINAL ARE BEING USED
HERE TO PUT MR. GINZBURG IN PRISON FOR FIVE YEARS.    I AGREE WITH MY
BROTHER HARLAN THAT THE COURT HAS IN EFFECT REWRITTEN THE FEDERAL
OBSCENITY STATUTE AND THEREBY IMPOSED ON GINZBURG STANDARDS AND
CRITERIA THAT CONGRESS NEVER THOUGHT ABOUT; OR IF IT DID THINK ABOUT
THEM, CERTAINLY IT DID NOT ADOPT THEM.  CONSEQUENTLY, GINZBURG IS, AS I
SEE IT, HAVING HIS CONVICTION AND SENTENCE AFFIRMED UPON THE BASIS OF A
STATUTE AMENDED BY THIS COURT FOR VIOLATION OF WHICH AMENDED STATUTE HE
WAS NOT CHARGED IN THE COURTS BELOW.  SUCH AN AFFIRMANCE WE HAVE SAID
VIOLATES DUE PROCESS.  COLE V. ARKANSAS, 333 U.S. 196.  COMPARE
SHUTTLESWORTH V. BIRMINGHAM, 382 U.S. 87.  QUITE APART FROM THIS VICE
IN THE AFFIRMANCE, HOWEVER, I THINK THAT THE CRITERIA DECLARED BY A
MAJORITY OF THE COURT TODAY AS GUIDELINES FOR A COURT OR JURY TO
DETERMINE WHETHER GINZBURG OR ANYONE ELSE CAN BE PUNISHED AS A COMMON
CRIMINAL FOR PUBLISHING OR CIRCULATING OBSCENE MATERIAL ARE SO VAGUE
AND MEANINGLESS THAT THEY PRACTICALLY LEAVE THE FATE OF A PERSON
CHARGED WITH VIOLATING CENSORSHIP STATUTES TO THE UNBRIDLED DISCRETION,
WHIM AND CAPRICE OF THE JUDGE OR JURY WHICH TRIES HIM.  I SHALL
SEPARATELY DISCUSS THE THREE ELEMENTS WHICH A MAJORITY OF THE COURT
SEEMS TO CONSIDER MATERIAL IN PROVING OBSCENITY.  (FN2) 

(A)  THE FIRST ELEMENT CONSIDERED NECESSARY FOR DETERMINING OBSCENITY
IS THAT THE DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE MUST APPEAL
TO THE PRURIENT INTEREST IN SEX.  IT SEEMS QUITE APPARENT TO ME THAT
HUMAN BEINGS, SERVING EITHER AS JUDGES OR JURORS, COULD NOT BE EXPECTED
TO GIVE ANY SORT OF DECISION ON THIS ELEMENT WHICH WOULD EVEN REMOTELY
PROMISE ANY KIND OF UNIFORMITY IN THE ENFORCEMENT OF THIS LAW.  WHAT
CONCLUSION AN INDIVIDUAL, BE HE JUDGE OR JUROR, WOULD REACH ABOUT
WHETHER THE MATERIAL APPEALS TO "PRURIENT INTEREST IN SEX" WOULD DEPEND
LARGELY IN THE LONG RUN NOT UPON TESTIMONY OF WITNESSES SUCH AS CAN BE
GIVEN IN ORDINARY CRIMINAL CASES WHERE CONDUCT IS UNDER SCRUTINY, BUT
WOULD DEPEND TO A LARGE EXTENT UPON THE JUDGE'S OR JUROR'S PERSONALITY,
HABITS, INCLINATIONS, ATTITUDES AND OTHER INDIVIDUAL CHARACTERISTICS. 
IN ONE COMMUNITY OR IN ONE COURTHOUSE A MATTER WOULD BE CONDEMNED AS
OBSCENE UNDER THIS SO-CALLED CRITERION BUT IN ANOTHER COMMUNITY, MAYBE
ONLY A FEW MILES AWAY, OR IN ANOTHER COURTHOUSE IN THE SAME COMMUNITY,
THE MATERIAL COULD BE GIVEN A CLEAN BILL OF HEALTH.  IN THE FINAL
ANALYSIS THE SUBMISSION OF SUCH AN ISSUE AS THIS TO A JUDGE OR JURY
AMOUNTS TO PRACTICALLY NOTHING MORE THAN A REQUEST FOR THE JUDGE OR
JUROR TO ASSERT HIS OWN PERSONAL BELIEFS ABOUT WHETHER THE MATTER
SHOULD BE ALLOWED TO BE LEGALLY DISTRIBUTED.  UPON THIS SUBJECTIVE
DETERMINATION THE LAW BECOMES CERTAIN FOR THE FIRST AND LAST TIME. 

(B)  THE SECOND ELEMENT FOR DETERMINING OBSCENITY AS IT IS DESCRIBED
BY MY BROTHER BRENNAN IS THAT THE MATERIAL MUST BE "PATENTLY OFFENSIVE
BECAUSE IT AFFRONTS CONTEMPORARY COMMUNITY STANDARDS RELATING TO THE
DESCRIPTION OR REPRESENTATION OF SEXUAL MATTERS  ...  ."  NOTHING THAT
I SEE IN ANY POSITION ADOPTED BY A MAJORITY OF THE COURT TODAY AND
NOTHING THAT HAS BEEN SAID IN PREVIOUS OPINIONS FOR THE COURT LEAVES ME
WITH ANY KIND OF CERTAINTY AS TO WHETHER THE "COMMUNITY STANDARDS"
(FN3) REFERRED TO ARE WORLD-WIDE, NATION-WIDE, SECTION-WIDE, STATE
WIDE, COUNTRY-WIDE, PRECINCT-WIDE OR TOWNSHIP-WIDE.  BUT EVEN IF SOME
DEFINITE AREAS WERE MENTIONED, WHO IS CAPABLE OF ASSESSING "COMMUNITY
STANDARDS" ON SUCH A SUBJECT?  COULD ONE EXPECT THE SAME APPLICATION OF
STANDARDS BY JURORS IN MISSISSIPPI AS IN NEW YORK CITY, IN VERMONT AS
IN CALIFORNIA?  SO HERE AGAIN THE GUILT OR INNOCENCE OF A DEFENDANT
CHARGED WITH OBSCENITY MUST DEPEND IN THE FINAL ANALYSIS UPON THE
PERSONAL JUDGMENT AND ATTITUDES OF PARTICULAR INDIVIDUALS AND THE PLACE
WHERE THE TRIAL IS HELD.  AND ONE MUST REMEMBER THAT THE FEDERAL
GOVERNMENT HAS THE POWER TO TRY A MAN FOR MAILING OBSCENE MATTER IN A
COURT 3,000 MILES FROM HIS HOME. 

(C)  A THIRD ELEMENT WHICH THREE OF MY BRETHREN THINK IS REQUIRED TO
ESTABLISH OBSCENITY IS THAT THE MATERIAL MUST BE "UTTERLY WITHOUT
REDEEMING SOCIAL VALUE."  THIS ELEMENT SEEMS TO ME TO BE AS UNCERTAIN,
IF NOT EVEN MORE UNCERTAIN, THAN IS THE UNKNOWN SUBSTANCE OF THE MILKY
WAY.  IF WE ARE TO HAVE A FREE SOCIETY AS CONTEMPLATED BY THE BILL OF
RIGHTS, THEN I CAN FIND LITTLE DEFENSE FOR LEAVING THE LIBERTY OF
AMERICAN INDIVIDUALS SUBJECT TO THE JUDGMENT OF A JUDGE OR JURY AS TO
WHETHER MATERIAL THAT PROVOKES THOUGHT OR STIMULATES DESIRE IS "UTTERLY
WITHOUT REDEEMING SOCIAL VALUE  ... ."  WHETHER A PARTICULAR TREATMENT
OF A PARTICULAR SUBJECT IS WITH OR WITHOUT SOCIAL VALUE IN THIS
EVOLVING, DYNAMIC SOCIETY OF OURS IS A QUESTION UPON WHICH NO UNIFORM
AGREEMENT COULD POSSIBLY BE REACHED AMONG POLITICIANS, STATESMEN,
PROFESSORS, PHILOSOPHERS, SCIENTISTS, RELIGIOUS GROUPS OR ANY OTHER
TYPE OF GROUP.  A CASE-BY-CASE ASSESSMENT OF SOCIAL VALUES BY
INDIVIDUAL JUDGES AND JURORS IS, I THINK, A DANGEROUS TECHNIQUE FOR
GOVERNMENT TO UTILIZE IN DETERMINING WHETHER A MAN STAYS IN OR OUT OF
THE PENITENTIARY. 

MY CONCLUSION IS THAT CERTAINLY AFTER THE FOURTEEN SEPARATE OPINIONS
HANDED DOWN IN THESE THREE CASES TODAY NO PERSON, NOT EVEN THE MOST
LEARNED JUDGE MUCH LESS A LAYMAN, IS CAPABLE OF KNOWING IN ADVANCE OF
AN ULTIMATE DECISION IN HIS PARTICULAR CASE BY THIS COURT WHETHER
CERTAIN MATERIAL COMES WITHIN THE AREA OF "OBSCENITY" AS THAT TERM IS
CONFUSED BY THE COURT TODAY.  FOR THIS REASON EVEN IF, AS APPEARS FROM
THE RESULT OF THE THREE CASES TODAY, THIS COUNTRY IS FAR ALONG THE WAY
TO A CENSORSHIP OF THE SUBJECTS ABOUT WHICH THE PEOPLE CAN TALK OR
WRITE, WE NEED NOT COMMIT FURTHER CONSTITUTIONAL TRANSGRESSIONS BY
LEAVING PEOPLE IN THE DARK AS TO WHAT LITERATURE OR WHAT WORDS OR WHAT
SYMBOLS IF DISTRIBUTED THROUGH THE MAILS MAKE A MAN A CRIMINAL.  AS BAD
AND OBNOXIOUS AS I BELIEVE GOVERNMENTAL CENSORSHIP IS IN A NATION THAT
HAS ACCEPTED THE FIRST AMENDMENT AS ITS BASIC IDEAL FOR FREEDOM, I AM
COMPELLED TO SAY THAT CENSORSHIP THAT WOULD STAMP CERTAIN BOOKS AND
LITERATURE AS ILLEGAL IN ADVANCE OF PUBLICATION OR CONVICTION WOULD IN
SOME WAYS BE PREFERABLE TO THE UNPREDICTABLE BOOK-BY-BOOK CENSORSHIP
INTO WHICH WE HAVE NOW DRIFTED. 

I CLOSE THIS PART OF MY DISSENT BY SAYING ONCE AGAIN THAT I THINK THE
FIRST AMENDMENT FORBIDS ANY KIND OR TYPE OR NATURE OF GOVERNMENTAL
CENSORSHIP OVER VIEWS AS DISTINGUISHED FROM CONDUCT. 

                                         II. 

IT IS OBVIOUS THAT THE EFFECT OF THE COURT'S DECISIONS IN THE THREE
OBSCENITY CASES HANDED DOWN TODAY IS TO MAKE IT EXCEEDINGLY DANGEROUS
FOR PEOPLE TO DISCUSS EITHER ORALLY OR IN WRITING ANYTHING ABOUT SEX. 
SEX IS A FACT OF LIFE.  ITS PERVASIVE INFLUENCE IS FELT THROUGHOUT THE
WORLD AND IT CANNOT BE IGNORED.  LIKE ALL OTHER FACTS OF LIFE IT CAN
LEAD TO DIFFICULTY AND TROUBLE AND SORROW AND PAIN.  BUT WHILE IT MAY
LEAD TO ABUSES, AND HAS IN MANY INSTANCES, NO WORDS NEED BE SPOKEN IN
ORDER FOR PEOPLE TO KNOW THAT THE SUBJECT IS ONE PLEASANTLY INTERWOVEN
IN ALL HUMAN ACTIVITIES AND INVOLVES THE VERY SUBSTANCE OF THE CREATION
OF LIFE ITSELF.  IT IS A SUBJECT WHICH PEOPLE ARE BOUND TO CONSIDER AND
DISCUSS WHATEVER LAWS ARE PASSED BY ANY GOVERNMENT TO TRY TO SUPPRESS
IT.  THOUGH I DO NOT SUGGEST ANY WAY TO SOLVE THE PROBLEMS THAT MAY
ARISE FROM SEX OR DISCUSSIONS ABOUT SEX, OF ONE THING I AM CONFIDENT,
AND THAT IS THAT FEDERAL CENSORSHIP IS NOT THE ANSWER TO THESE
PROBLEMS.  I FIND IT DIFFICULT TO SEE HOW TALK ABOUT SEX CAN BE PLACED
UNDER THE KIND OF CENSORSHIP THE COURT HERE APPROVES WITHOUT SUBJECTING
OUR SOCIETY TO MORE DANGERS THAN WE CAN ANTICIPATE AT THE MOMENT.  IT
WAS TO AVOID EXACTLY SUCH DANGERS THAT THE FIRST AMENDMENT WAS WRITTEN
AND ADOPTED.  FOR MYSELF I WOULD FOLLOW THE COURSE WHICH I BELIEVE IS
REQUIRED BY THE FIRST AMENDMENT, THAT IS, RECOGNIZE THAT SEX AT LEAST
AS MUCH AS ANY OTHER ASPECT OF LIFE IS SO MUCH A PART OF OUR SOCIETY
THAT ITS DISCUSSION SHOULD NOT BE MADE A CRIME. 

I WOULD REVERSE THIS CASE. 

FN1  SEE NO. 49, MISHKIN V. NEW YORK, POST, P. 502, AND NO. 368,
MEMOIRS V. MASSACHUSETTS, ANTE, P. 413. 

FN2  AS I UNDERSTAND ALL OF THE OPINIONS IN THIS CASE AND THE TWO
RELATED CASES DECIDED TODAY, THREE THINGS MUST BE PROVEN TO ESTABLISH
MATERIAL AS OBSCENE.  IN BRIEF THESE ARE (1) THE MATERIAL MUST APPEAL
TO THE PRURIENT INTEREST, (2) IT MUST BE PATENTLY OFFENSIVE, AND (3) IT
MUST HAVE NO REDEEMING SOCIAL VALUE.  MR. JUSTICE BRENNAN IN HIS
OPINION IN MEMOIRS V. MASSACHUSETTS, ANTE, P. 413, WHICH IS JOINED BY
THE CHIEF JUSTICE AND MR. JUSTICE FORTAS, IS OF THE OPINION THAT ALL
THREE OF THESE ELEMENTS MUST COALESCE BEFORE MATERIAL CAN BE LABELED
OBSCENE.  MR. JUSTICE CLARK IN A DISSENTING OPINION IN MEMOIRS
INDICATES, HOWEVER, THAT PROOF OF THE FIRST TWO ELEMENTS ALONE IS
ENOUGH TO SHOW OBSCENITY AND THAT PROOF OF THE THIRD - THE MATERIAL
MUST BE UTTERLY WITHOUT REDEEMING SOCIAL VALUE - IS ONLY AN AID IN
PROVING THE FIRST TWO.  IN HIS DISSENTING OPINION IN MEMOIRS MR.
JUSTICE WHITE STATES THAT MATERIAL IS OBSCENE "IF ITS PREDOMINANT THEME
APPEALS TO THE PRURIENT INTEREST IN A MANNER EXCEEDING CUSTOMARY LIMITS
OF CANDOR."  IN THE SAME OPINION MR. JUSTICE WHITE STATES THAT THE
SOCIAL IMPORTANCE TEST "IS RELEVANT ONLY TO DETERMINING THE PREDOMINANT
PRURIENT INTEREST OF THE MATERIAL." 

FN3  SEE THE OPINION OF MR. JUSTICE BRENNAN, CONCURRED IN BY MR.
JUSTICE GOLDBERG IN JACOBELLIS V. OHIO, 378 U.S. 184, BUT COMPARE THE
DISSENT IN THAT CASE OF THE CHIEF JUSTICE, JOINED BY MR. JUSTICE CLARK,
AT 199. 

MR. JUSTICE DOUGLAS, DISSENTING. 

TODAY'S CONDEMNATION OF THE USE OF SEX SYMBOLS TO SELL LITERATURE
ENGRAFTS ANOTHER EXCEPTION ON FIRST AMENDMENT RIGHTS THAT IS AS
UNWARRANTED AS THE JUDGE-MADE EXCEPTION CONCERNING OBSCENITY.  THIS NEW
EXCEPTION CONDEMNS AN ADVERTISING TECHNIQUE AS OLD AS HISTORY.  THE
ADVERTISEMENTS OF OUR BEST MAGAZINES ARE CHOCK-FULL OF THIGHS, ANKLES,
CALVES, BOSOMS, EYES, AND HAIR, TO DRAW THE POTENTIAL BUYER'S ATTENTION
TO LOTIONS, TIRES, FOOD, LIQUOR, CLOTHING, AUTOS, AND EVEN INSURANCE
POLICIES.  THE SEXY ADVERTISEMENT NEITHER ADDS TO NOR DETRACTS FROM THE
QUALITY OF THE MERCHANDISE BEING OFFERED FOR SALE.  AND I DO NOT SEE
HOW IT ADDS TO OR DETRACTS ONE WHIT FROM THE LEGALITY OF THE BOOK BEING
DISTRIBUTED.  A BOOK SHOULD STAND ON ITS OWN, IRRESPECTIVE OF THE
REASONS WHY IT WAS WRITTEN OR THE WILES USED IN SELLING IT.  I CANNOT
IMAGINE ANY PROMOTIONAL EFFORT THAT WOULD MAKE CHAPTERS 7 AND 8 OF THE
SONG OF SOLOMON ANY THE LESS OR ANY MORE WORTHY OF FIRST AMENDMENT
PROTECTION THAN DOES THEIR UNOSTENTATIOUS INCLUSION IN THE AVERAGE
EDITION OF THE BIBLE. 

      I. 

THE COURT HAS, IN A VARIETY OF CONTEXTS, INSISTED THAT PRESERVATION
OF RIGHTS SAFEGUARDED BY THE FIRST AMENDMENT REQUIRES VIGILANCE.  WE
HAVE RECOGNIZED THAT A "CRIMINAL PROSECUTION UNDER A STATUTE REGULATING
EXPRESSION USUALLY INVOLVES IMPONDERABLES AND CONTINGENCIES THAT
THEMSELVES MAY INHIBIT THE FULL EXERCISE OF FIRST AMENDMENT FREEDOMS." 
DOMBROWSKI V. PFISTER, 380 U.S. 479, 486.  WHERE UNCERTAINTY IS THE
DISTINGUISHING CHARACTERISTIC OF A LEGAL PRINCIPLE - IN THIS CASE THE
COURT'S "PANDERING" THEORY - "THE FREE DISSEMINATION OF IDEAS MAY BE
THE LOSER."  SMITH V. CALIFORNIA, 361 U.S. 147, 151.  THE COURT TODAY,
HOWEVER, TAKES THE OTHER COURSE, DESPITE THE ADMONITION IN SPEISER V.
RANDALL, 357 U.S. 513, 525, THAT "THE SEPARATION OF LEGITIMATE FROM
ILLEGITIMATE SPEECH CALLS FOR  ...  SENSITIVE TOOLS."  BEFORE TODAY,
DUE REGARD FOR THE FRAILTIES OF FREE EXPRESSION LED US TO REJECT
INSENSITIVE PROCEDURES (FN1) AND CLUMSY, VAGUE, OR OVERBROAD
SUBSTANTIVE RULES EVEN IN THE REALM OF OBSCENITY.  (FN2)  FOR AS THE
COURT EMPHASIZED IN ROTH V. UNITED STATES, 354 U.S. 476, 488, "THE DOOR
BARRING FEDERAL AND STATE INTRUSION INTO THIS AREA CANNOT BE LEFT AJAR;
IT MUST BE KEPT TIGHTLY CLOSED AND OPENED ONLY THE SLIGHTEST CRACK
NECESSARY TO PREVENT ENCROACHMENT UPON MORE IMPORTANT INTERESTS." 

CERTAINLY WITHOUT THE AURA OF SEX IN THE PROMOTION OF THESE
PUBLICATIONS, THEIR CONTENTS CANNOT BE SAID TO BE UTTERLY WITHOUT
REDEEMING SOCIAL IMPORTANCE."  ROTH V. UNITED STATES, SUPRA, AT 484. 
(FN3)  ONE OF THE PUBLICATIONS CONDEMNED TODAY IS THE HOUSEWIFE'S
HANDBOOK ON SELECTIVE PROMISCUITY, WHICH A NUMBER OF DOCTORS AND
PSYCHIATRISTS THOUGHT HAD CLINICAL VALUE.  ONE CLINICAL PSYCHOLOGIST
SAID:  "I SHOULD LIKE TO RECOMMEND IT, FOR EXAMPLE, TO THE PEOPLE IN MY
CHURCH TO READ, ESPECIALLY THOSE WHO ARE HAVING MARITAL DIFFICULTIES,
IN ORDER TO INCREASE THEIR TOLERANCE AND UNDERSTANDING FOR ONE
ANOTHER.  MUCH OF THE BOOK, I SHOULD THINK, WOULD BE VERY SUITABLE
READING FOR TEEN AGE PEOPLE, ESPECIALLY TEEN AGE YOUNG WOMEN WHO COULD
EMPATHIZE STRONGLY WITH THE GROWING UP PERIOD THAT MRS. REY ANTHONY
RELATES, AND COULD READ ON AND BE DISABUSED OF SOME OF THE UNREALISTIC
NOTIONS ABOUT MARRIAGE AND SEXUAL EXPERIENCES.  I SHOULD THINK THIS
WOULD MAKE VERY GOOD READING FOR THE AVERAGE MAN TO HELP HIM GAIN A
BETTER APPRECIATION OF FEMALE SEXUALITY." 

THE REV. GEORGE VON HILSHEIMER III, A BAPTIST MINISTER, (FN4)
TESTIFIED THAT HE HAS USED THE BOOK "INSISTENTLY IN MY PASTORAL
COUNSELING AND IN MY FORMAL PSYCHOLOGICAL COUNSELING":    "THE BOOK IS
A HISTORY, A VERY UNHAPPY HISTORY, OF A SERIES OF SEXUAL AND
PSYCHOLOGICAL MISADVENTURES AND THE ENCOUNTER OF A QUITE TYPICAL AND
AVERAGE AMERICAN WOMAN WITH QUITE TYPICAL AND AVERAGE AMERICAN MEN. 
THE FACT THAT THE BOOK ITSELF IS THE HISTORY OF A WOMAN WHO HAS HAD
SEXUAL ADVENTURES OUTSIDE THE NORMALLY ACCEPTED BOUNDS OF MARRIAGE
WHICH, OF COURSE FOR MOST AMERICANS TODAY, IS A SORT OF SERIAL
POLYGAMY, IT DOES NOT TEACH OR ADVOCATE THIS, BUT GIVES THE WOMEN TO
WHOM I GIVE THE BOOK AT LEAST A SENSE THAT THEIR OWN EXPERIENCES ARE
NOT UNUSUAL, THAT THEIR SEXUAL FAILURES ARE NOT UNUSUAL, AND THAT THEY
THEMSELVES SHOULD NOT BE GUILTY BECAUSE THEY ARE, WHAT THEY SAY, SEXUAL
FAILURES." 

I WOULD THINK THE BAPTIST MINISTER'S EVALUATION WOULD BE ENOUGH TO
SATISFY THE COURT'S TEST, UNLESS THE CENSOR'S WORD IS TO BE FINAL OR
UNLESS THE EXPERTS ARE TO BE WEIGHED IN THE CENSOR'S SCALES, IN WHICH
EVENT ONE ANTHONY COMSTOCK WOULD TOO OFTEN PROVE MORE WEIGHTY THAN A
DOZEN MORE DETACHED SCHOLARS, OR UNLESS WE, THE ULTIMATE BOARD OF
CENSORS, ARE TO LAY DOWN STANDARDS FOR REVIEW THAT GIVE THE CENSOR THE
BENEFIT OF THE "ANY EVIDENCE" RULE OR THE "SUBSTANTIAL EVIDENCE" RULE
AS IN THE ADMINISTRATIVE LAW FIELD.  CF. UNIVERSAL CAMERA CORP. V.
LABOR BOARD, 340 U.S. 474.  OR PERHAPS WE MEAN TO LET THE COURTS SIFT
AND CHOOSE AMONG CONFLICTING VERSIONS OF THE "REDEEMING SOCIAL
IMPORTANCE" OF A PARTICULAR BOOK, MAKING SURE THAT THEY KEEP THEIR
FINDINGS CLEAR OF DOUBT LEST WE REVERSE, AS WE DO TODAY IN MEMOIRS V.
MASSACHUSETTS, ANTE, P. 413, BECAUSE THE LOWER COURT IN AN EFFORT TO BE
FAIR SHOWED HOW TWO-SIDED THE ARGUMENT WAS.  SINCE THE TEST IS WHETHER
THE PUBLICATION IS "UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE," THEN
I THINK WE SHOULD HONOR THE OPINION OF THE BAPTIST MINISTER WHO
TESTIFIED AS AN EXPERT IN THE FIELD OF COUNSELING. 

THEN THERE IS THE NEWSLETTER LIAISON.  ONE OF THE DEFENDANTS' OWN
WITNESSES, CRITIC DWIGHT MACDONALD, TESTIFIED THAT WHILE, IN HIS
OPINION, IT DID NOT GO BEYOND THE CUSTOMARY LIMITS OF CANDOR TOLERATED
BY THE COMMUNITY, IT WAS "AN EXTREMELY TASTELESS, VULGAR AND REPULSIVE
ISSUE."  THIS MAY, PERHAPS, OVERSTATE THE CASE, BUT LIAISON IS
ADMITTEDLY LITTLE MORE THAN A COLLECTION OF "DIRTY" JOKES AND POEMS,
WITH THE POSSIBLE EXCEPTION OF AN INTERVIEW WITH DR. ALBERT ELLIS.  AS
TO THIS MATERIAL, I FIND WISDOM IN THE WORDS OF THE LATE JUDGE JEROME
FRANK: 

"THOSE WHOSE VIEWS MOST JUDGES KNOW BEST ARE OTHER LAWYERS.  JUDGES
CAN AND SHOULD TAKE JUDICIAL NOTICE THAT, AT MANY GATHERINGS OF LAWYERS
AT BAR ASSOCIATION OR OF ALUMNI OF OUR LEADING LAW SCHOOLS, TALES ARE
TOLD FULLY AS 'OBSCENE' AS MANY OF THOSE DISTRIBUTED BY MEN  ...
CONVICTED FOR VIOLATION OF THE OBSCENITY STATUTE  ...  .  'ONE THINKS
OF THE LYRICS SUNG  ...  BY A CERTAIN RESPECTED AND CONSERVATIVE MEMBER
OF THE FACULTY OF A GREAT LAW-SCHOOL WHICH CONSIDERS ITSELF THE MOST
DISTINGUISHED AND WHICH IS THE ALMA MATER OF MANY JUDGES SITTING ON
UPPER COURTS.'"  (FN5) 

LIAISON'S APPEAL IS NEITHER LITERARY NOR SPIRITUAL.  BUT NEITHER IS
ITS APPEAL TO A "SHAMEFUL OR MORBID INTEREST IN NUDITY, SEX, OR
EXCRETION."  THE APPEAL IS TO THE RIBALD SENSE OF HUMOR WHICH IS - FOR
BETTER OR WORSE - A PART OF OUR CULTURE.  A MATURE SOCIETY WOULD NOT
SUPPRESS THIS NEWSLETTER AS OBSCENE BUT WOULD SIMPLY IGNORE IT. 

THEN THERE IS EROS.  THE COURT AFFIRMS THE JUDGMENT OF THE LOWER
COURT, WHICH FOUND ONLY FOUR OF THE MANY ARTICLES AND ESSAYS TO BE
OBSCENE.  ONE OF THE FOUR ARTICLES CONSISTED OF NUMEROUS RIBALD
LIMERICKS, TO WHICH THE VIEWS EXPRESSED AS TO LIAISON WOULD APPLY WITH
EQUAL FORCE.  ANOTHER WAS A PHOTO ESSAY ENTITLED "BLACK AND WHITE IN
COLOR" WHICH DEALT WITH INTERRACIAL LOVE:  A SUBJECT UNDOUBTEDLY
OFFENSIVE TO SOME MEMBERS OF OUR SOCIETY.  CRITIC DWIGHT MACDONALD
TESTIFIED: 

"I SUPPOSE IF YOU OBJECT TO THE IDEA OF A NEGRO AND A WHITE PERSON
HAVING SEX TOGETHER, THEN, OF COURSE, YOU WOULD BE HORRIFIED BY IT.  I
DON'T.  FROM THE ARTISTIC POINT OF VIEW I THOUGHT IT WAS VERY GOOD.  IN
FACT, I THOUGHT IT WAS DONE WITH GREAT TASTE, AND I DON'T KNOW HOW TO
SAY IT - I NEVER HEARD OF HIM BEFORE, BUT HE IS OBVIOUSLY AN EXTREMELY
COMPETENT AND ACCOMPLISHED PHOTOGRAPHER." 

ANOTHER DEFENSE WITNESS, PROFESSOR HORST W. JANSON, PRESENTLY THE
CHAIRMAN OF THE FINE ARTS DEPARTMENT AT NEW YORK UNIVERSITY,
TESTIFIED: 

"I THINK THEY ARE OUTSTANDINGLY BEAUTIFUL AND ARTISTIC PHOTOGRAPHS. 
I CAN NOT IMAGINE THE THEME BEING TREATED IN A MORE LYRICAL AND
DELICATE MANNER THAN IT HAS BEEN DONE HERE. 

     *         *         *         *         * 

"I MIGHT ADD HERE THAT OF COURSE PHOTOGRAPHY IN APPROPRIATE HANDS IS
AN ARTISTIC INSTRUMENT AND THIS PARTICULAR PHOTOGRAPHER HAS SHOWN A
VERY GREAT AWARENESS OF COMPOSITIONAL DEVICES AND PATTERNS THAT HAVE A
LONG AND WELL-ESTABLISHED HISTORY IN WESTERN ART. 

     *         *         *         *         * 

"THE VERY CONTRAST IN THE COLOR OF THE TWO BODIES OF COURSE HAS
PRESENTED HIM WITH CERTAIN OPPORTUNITIES THAT HE WOULD NOT HAVE HAD
WITH TWO MODELS OF THE SAME COLOR, AND HE HAS TAKEN RATHER
EXTRAORDINARY AND VERY DELICATE ADVANTAGE OF THESE CONTRASTS." 

THE THIRD ARTICLE FOUND SPECIFICALLY BY THE TRIAL JUDGE TO BE OBSCENE
WAS A DISCUSSION BY DRS. EBERHARD W. AND PHYLLIS C. KRONHAUSEN OF
EROTIC WRITING BY WOMEN, WITH ILLUSTRATIVE QUOTATIONS.  (FN6)  THE
WORTH OF THE ARTICLE WAS DISCUSSED BY DWIGHT MACDONALD, WHO STATED: 

"I THOUGHT THIS WAS AN EXTREMELY INTERESTING AND IMPORTANT STUDY WITH
SOME REMARKABLE QUOTATIONS FROM THE WOMAN WHO HAD PUT DOWN HER SENSE OF
LOVE-MAKING, OF SEXUAL INTERCOURSE 

...  IN AN EXTREMELY ELOQUENT WAY.  I HAVE NEVER SEEN THIS FROM THE
WOMAN'S POINT OF VIEW.  I THOUGHT THE POINT THEY MADE, THE DIFFERENCE
BETWEEN THE MAN'S AND THE WOMAN'S APPROACH TO SEXUAL INTERCOURSE WAS
VERY WELL MADE AND VERY IMPORTANT." 

STILL ANOTHER ARTICLE FOUND OBSCENE WAS A SHORT INTRODUCTION TO AND A
LENGTHY EXCERPT FROM MY LIFE AND LOVES BY FRANK HARRIS, ABOUT WHICH
THERE IS LITTLE IN THE RECORD.  SUFFICE IT TO SAY THAT THIS SEEMS TO BE
A BOOK OF SOME LITERARY STATURE.  AT LEAST I FIND IT DIFFICULT ON THIS
RECORD TO SAY THAT IT IS "UTTERLY WITHOUT REDEEMING SOCIAL
IMPORTANCE."  (FN7) 

SOME OF THE TRACTS FOR WHICH THESE PUBLISHERS GO TO PRISON CONCERN
NORMAL SEX, SOME HOMOSEXUALITY, SOME THE MASOCHISTIC YEARNING THAT IS
PROBABLY PRESENT IN EVERYONE AND DOMINANT IN SOME.  MASOCHISM IS A
DESIRE TO BE PUNISHED OR SUBDUED.  IN THE BROAD FRAME OF REFERENCE THE
DESIRE MAY BE EXPRESSED IN THE LONGING TO BE WHIPPED AND LASHED, BOUND
AND GAGGED, AND CRUELLY TREATED.  (FN8)  WHY IS IT UNLAWFUL TO CATER TO
THE NEEDS OF THIS GROUP?  THEY ARE, TO BE SURE, SOMEWHAT OFFBEAT,
NONCONFORMIST, AND ODD.  BUT WE ARE NOT IN THE REALM OF CRIMINAL
CONDUCT, ONLY IDEAS AND TASTES.  SOME LIKE CHOPIN, OTHERS LIKE "ROCK
AND ROLL."  SOME ARE "NORMAL," SOME ARE MASOCHISTIC, SOME DEVIANT IN
OTHER RESPECTS, SUCH AS THE HOMOSEXUAL.  ANOTHER GROUP ALSO REPRESENTED
HERE TRANSLATES MUNDANE ARTICLES INTO SEXUAL SYMBOLS.  THIS GROUP, LIKE
THOSE EMBRACING MASOCHISM, ARE ANATHEMA TO THE SO-CALLED STABLE
MAJORITY.  BUT WHY IS FREEDOM OF THE PRESS AND EXPRESSION DENIED THEM? 
ARE THEY TO BE BARRED FROM COMMUNICATING IN SYMBOLISMS IMPORTANT TO
THEM?  WHEN THE COURT TODAY SPEAKS OF "SOCIAL VALUE," DOES IT MEAN A
"VALUE" TO THE MAJORITY?  WHY IS NOT A MINORITY "VALUE" COGNIZABLE? 
THE MASOCHISTIC GROUP IS ONE; THE DEVIANT GROUP IS ANOTHER.  IS IT NOT
IMPORTANT THAT MEMBERS OF THOSE GROUPS COMMUNICATE WITH EACH OTHER? 
WHY IS COMMUNICATION BY THE "WRITTEN WORD" FORBIDDEN?  IF WE WERE WISE
ENOUGH, WE MIGHT KNOW THAT COMMUNICATION MAY HAVE GREATER THERAPEUTICAL
VALUE THAN ANY SERMON THAT THOSE OF THE "NORMAL" COMMUNITY CAN EVER
OFFER.  BUT IF THE COMMUNICATION IS OF VALUE TO THE MASOCHISTIC
COMMUNITY OR TO OTHERS OF THE DEVIANT COMMUNITY, HOW CAN IT BE SAID TO
BE "UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE"?  "REDEEMING" TO
WHOM?  "IMPORTANCE" TO WHOM? 

WE TOOK QUITE A DIFFERENT STANCE IN ONE, INC. V. OLESEN, 355 U.S.
371, WHERE WE UNANIMOUSLY REVERSED THE DECISION OF THE COURT OF APPEALS
IN 241 F.2D 772 WITHOUT OPINION.  OUR HOLDING WAS ACCURATELY DESCRIBED
BY LOCKHART AND MCCLURE, OBSCENITY CENSORSHIP:  THE CORE CONSTITUTIONAL
ISSUE - WHAT IS OBSCENE?  7 UTAH L. REV. 289, 293 (1961): 

"THIS WAS A MAGAZINE FOR HOMOSEXUALS ENTITLED ONE - THE HOMOSEXUAL
MAGAZINE, WHICH WAS DEFINITELY NOT A SCIENTIFIC OR CRITICAL MAGAZINE,
BUT APPEARS TO HAVE BEEN WRITTEN TO APPEAL TO THE TASTES AND INTERESTS
OF HOMOSEXUALS."  (FN9) 

MAN WAS NOT MADE IN A FIXED MOULD.  IF A PUBLICATION CATERS TO THE
IDIOSYNCRASIES OF A MINORITY, WHY DOES IT NOT HAVE SOME "SOCIAL
IMPORTANCE"?  EACH OF US IS A VERY TEMPORARY TRANSIENT WITH LIKES AND
DISLIKES THAT COVER THE SPECTRUM.  HOWEVER PLEBIAN MY TASTES MAY BE,
WHO AM I TO SAY THAT OTHERS' TASTES MUST BE SO LIMITED AND THAT OTHER
TASTES HAVE NO "SOCIAL IMPORTANCE"?  HOW CAN WE KNOW ENOUGH TO PROBE
THE MYSTERIES OF THE SUBCONSCIOUS OF OUR PEOPLE AND SAY THAT THIS IS
GOOD FOR THEM AND THAT IS NOT?  CATERING TO THE MOST ECCENTRIC TASTE
MAY HAVE "SOCIAL IMPORTANCE" IN GIVING THAT MINORITY AN OPPORTUNITY TO
EXPRESS ITSELF RATHER THAN TO REPRESS ITS INNER DESIRES, AS I SUGGEST
IN MY SEPARATE OPINION IN MEMOIRS V. MASSACHUSETTS, ANTE, AT 431-432. 
HOW CAN WE KNOW THAT THIS EXPRESSION MAY NOT PREVENT ANTISOCIAL
CONDUCT? 

I FIND IT DIFFICULT TO SAY THAT A PUBLICATION HAS NO "SOCIAL
IMPORTANCE" BECAUSE IT CATERS TO THE TASTE OF THE MOST UNORTHODOX
AMONGST US.  WE MEMBERS OF THIS COURT SHOULD BE AMONG THE LAST TO SAY
WHAT SHOULD BE ORTHODOX IN LITERATURE.  AN OMNISCIENCE WOULD BE
REQUIRED WHICH FEW IN OUR WHOLE SOCIETY POSSESS. 

                                        II. 

THIS LEADS ME TO THE CONCLUSION, PREVIOUSLY NOTED, THAT THE FIRST
AMENDMENT ALLOWS ALL IDEAS TO BE EXPRESSED - WHETHER ORTHODOX, POPULAR,
OFFBEAT, OR REPULSIVE.  I DO NOT THINK IT PERMISSIBLE TO DRAW LINES
BETWEEN THE "GOOD" AND THE "BAD" AND BE TRUE TO THE CONSTITUTIONAL
MANDATE TO LET ALL IDEAS ALONE.  IF OUR CONSTITUTION PERMITTED
"REASONABLE" REGULATION OF FREEDOM OF EXPRESSION, AS DO THE
CONSTITUTIONS OF SOME NATIONS, (FN10) WE WOULD BE IN A FIELD WHERE THE
LEGISLATIVE AND THE JUDICIARY WOULD HAVE MUCH LEEWAY.  BUT UNDER OUR
CHARTER ALL REGULATION OR CONTROL OF EXPRESSION IS BARRED.  GOVERNMENT
DOES NOT SIT TO REVEAL WHERE THE "TRUTH" IS.  PEOPLE ARE LEFT TO PICK
AND CHOOSE BETWEEN COMPETING OFFERINGS.  THERE IS NO COMPULSION TO TAKE
AND READ WHAT IS REPULSIVE ANY MORE THAN THERE IS TO SPEND ONE'S TIME
PORING OVER GOVERNMENT BULLETINS, POLITICAL TRACTS, OR THEOLOGICAL
TREATISES.   THE THEORY IS THAT PEOPLE ARE MATURE ENOUGH TO PICK AND
CHOOSE, TO RECOGNIZE TRASH WHEN THEY SEE IT, TO BE ATTRACTED TO THE
LITERATURE THAT SATISFIES THEIR DEEPEST NEED, AND, HOPEFULLY, TO MOVE
FROM PLATEAU TO PLATEAU AND FINALLY REACH THE WORLD OF ENDURING IDEAS. 

I THINK THIS IS THE IDEAL OF THE FREE SOCIETY WRITTEN INTO OUR
CONSTITUTION.  WE HAVE NO BUSINESS ACTING AS CENSORS OR ENDOWING ANY
GROUP WITH CENSORSHIP POWERS.  IT IS SHOCKING TO ME FOR US TO SEND TO
PRISON ANYONE FOR PUBLISHING ANYTHING, ESPECIALLY TRACTS SO DISTANT
FROM ANY INCITEMENT TO ACTION AS THE ONES BEFORE US. 

FN1  MARCUS V. SEARCH WARRANT, 367 U.S. 717; A QUANTITY OF BOOKS V.
KANSAS, 378 U.S. 205; FREEDMAN V. MARYLAND, 380 U.S. 51. 

FN2  BUTLER V. MICHIGAN, 352 U.S. 380; SMITH V. CALIFORNIA, 361 U.S.
147; MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478 (OPINION OF HARLAN,
J.). 

FN3  THE COURT'S PREMISE IS THAT GINZBURG REPRESENTED THAT HIS
PUBLICATIONS WOULD BE SEXUALLY AROUSING.  THE COURT, HOWEVER,
RECOGNIZED IN ROTH:  "SEX AND OBSCENITY ARE NOT SYNONYMOUS.  OBSCENE
MATERIAL IS MATERIAL WHICH DEALS WITH SEX IN A MANNER APPEALING TO
PRURIENT INTEREST 

...  I.E., A SHAMEFUL OR MORBID INTEREST IN NUDITY, SEX, OR EXCRETION
...  ."  ID., 487 AND N. 20.  THE ADVERTISEMENTS FOR THESE
PUBLICATIONS, WHICH THE MAJORITY QUOTES (ANTE, AT 468-469, N. 9),
PROMISED CANDOR IN THE TREATMENT OF MATTERS PERTAINING TO SEX, AND AT
THE SAME TIME PROCLAIMED THAT THEY WERE ARTISTIC OR OTHERWISE SOCIALLY
VALUABLE.  IN EFFECT, THEN, THESE ADVERTISEMENTS REPRESENTED THAT THE
PUBLICATIONS ARE NOT OBSCENE. 

FN4  REV. VON HILSHEIMER OBTAINED AN A.B. AT THE UNIVERSITY OF MIAMI
IN 1951.  HE DID GRADUATE WORK IN PSYCHOLOGY AND STUDIED ANALYSIS AND
TRAINING THERAPY.  THEREAFTER, HE DID GRADUATE WORK AS A THEOLOGICAL
STUDENT, AND RECEIVED A DEGREE AS A DOCTOR OF DIVINITY FROM THE
UNIVERSITY OF CHICAGO IN 1957.  HE HAD EXTENSIVE EXPERIENCE AS A GROUP
COUNSELOR, LECTURER, AND FAMILY COUNSELOR.  HE WAS A CONSULTANT TO
PRESIDENT KENNEDY'S STUDY GROUP ON NATIONAL VOLUNTARY SERVICES, AND A
MEMBER OF THE BOARD OF DIRECTORS OF MOBILIZATION FOR YOUTH. 

FN5  UNITED STATES V. ROTH, 237 F.2D 796, 822 AND N. 58 (CONCURRING
OPINION). 

FN6  THE KRONHAUSENS WROTE PORNOGRAPHY AND THE LAW (1959). 

FN7  THE EXTENSIVE LITERARY COMMENT WHICH THE BOOK'S PUBLICATION
GENERATED DEMONSTRATES THAT IT IS NOT "UTTERLY WITHOUT REDEEMING SOCIAL
IMPORTANCE."  SEE, E.G., NEW YORK REVIEW OF BOOKS, P. 6 (JAN. 9, 1964);
NEW YORKER, PP. 79-80 (JAN. 4.  1964); LIBRARY JOURNAL, PP. 4743-4744
(DEC. 15, 1963); NEW YORK TIMES BOOK REVIEW, P. 10 (NOV. 10, 1963);
TIME, PP. 102-104 (NOV. 8, 1963); NEWSWEEK, PP. 98-100 (OCT. 28, 1963);
NEW REPUBLIC, PP. 23-27 (DEC. 28, 1963). 

FN8  SEE KRAFFT-EBING, PSYCHOPATHIA SEXUALIS, P. 89 ET SEQ. (1893);
EISLER, MAN INTO WOLF, P. 23 ET SEQ. (1951); STEKEL, SADISM AND
MASOCHISM (1929) PASSIM; BERGLER, PRINCIPLES OF SELF-DAMAGE (1959)
PASSIM; REIK, MASOCHISM IN MODERN MAN (1941) PASSIM. 

FN9  THE COURT OF APPEALS SUMMARIZED THE CONTENTS AS FOLLOWS: 

"THE ARTICLE 'SAPPHO REMEMBERED' IS THE STORY OF A LESBIAN'S
INFLUENCE ON A YOUNG GIRL ONLY TWENTY YEARS OF AGE BUT 'ACTUALLY NEARER
SIXTEEN IN MANY ESSENTIAL WAYS OF MATURITY,' IN HER STRUGGLE TO CHOOSE
BETWEEN A LIFE WITH THE LESBIAN, OR A NORMAL MARRIED LIFE WITH HER
CHILDHOOD SWEETHEART.  THE LESBIAN'S AFFAIR WITH HER ROOMMATE WHILE IN
COLLEGE, RESULTING IN THE LESBIAN'S EXPULSION FROM COLLEGE, IS
RECOUNTED TO BRING IN THE JEALOUSY ANGLE.  THE CLIMAX IS REACHED WHEN
THE YOUNG GIRL GIVES UP HER CHANCE FOR A NORMAL MARRIED LIFE TO LIVE
WITH THE LESBIAN.  THIS ARTICLE IS NOTHING MORE THAN CHEAP PORNOGRAPHY
CALCULATED TO PROMOTE LESBIANISM.  IT FALLS FAR SHORT OF DEALING WITH
HOMOSEXUALITY FROM THE SCIENTIFIC, HISTORICAL AND CRITICAL POINT OF
VIEW.    "THE POEM 'LORD SAMUEL AND LORD MONTAGU' IS ABOUT THE ALLEGED
HOMOSEXUAL ACTIVITIES OF LORD MONTAGU AND OTHER BRITISH PEERS AND
CONTAINS A WARNING TO ALL MALES TO AVOID THE PUBLIC TOILETS WHILE LORD
SAMUEL IS 'SNIFFING ROUND THE DRAINS' OF PICCADILLY (LONDON)  ...  . 

     *         *         *         *       * 

"THE STORIES 'ALL THIS AND HEAVEN TOO,' AND 'NOT TIL THE END,' PAGES
32-36, ARE SIMILAR TO THE STORY 'SAPPHO REMEMBERED,' EXCEPT THAT THEY
RELATE TO THE ACTIVITIES OF THE HOMOSEXUALS RATHER THAN LESBIANS."  241
F.2D 772, 777, 778. 

THERE ARE OTHER DECISIONS OF OURS WHICH ALSO REVERSED JUDGMENTS
CONDEMNING PUBLICATIONS CATERING TO A WIDER RANGE OF LITERARY TASTES
THAN WE SEEM TO TOLERATE TODAY.  SEE, E.G., MOUNCE V. UNITED STATES,
355 U.S. 180, VACATING AND REMANDING 247 F.2D 148 (NUDIST MAGAZINES);
SUNSHINE BOOK CO. V. SUMMERFIELD, 355 U.S. 372, REVERSING 101 U.S. APP.
D.C. 358, 249 F.2D 114 (NUDIST MAGAZINE); TRALINS V. GERSTEIN, 378 U.S.
576, REVERSING 151 SO. 2D 19 (BOOK TITLED "PLEASURE WAS MY BUSINESS"
DEPICTING THE HAPPENINGS IN A HOUSE OF PROSTITUTION); GROVE PRESS V.
GERSTEIN, 378 U.S. 577, REVERSING 156 SO. 2D 537 (BOOK TITLED "TROPIC
OF CANCER" BY HENRY MILLER). 

FN10  SEE, E.G., CONSTITUTION OF THE UNION OF BURMA, ART. 17(I),
REPRINTED IN I PEASLEE, CONSTITUTIONS OF NATIONS, P. 281 (2D ED. 1956);
CONSTITUTION OF INDIA, ART. 19(2), II PEASLEE, OP. CIT. SUPRA, P. 227;
CONSTITUTION OF IRELAND, ART. 40(6)(1)(I), II PEASLEE, OP. CIT. SUPRA,
P. 458; FEDERAL CONSTITUTION OF THE SWISS CONFEDERATION, ART. 55, III
PEASLEE, OP. CIT. SUPRA, P. 344; CONSTITUTION OF LIBYA, ART. 22, I
PEASLEE, CONSTITUTIONS OF NATIONS, P. 438 (3D ED. 1965); CONSTITUTION
OF NIGERIA, ART. 25(2), ID., P. 605; CONSTITUTION OF ZAMBIA, ART.
22(2), ID., PP. 1040-1041. 

THIS OPINION APPLIES ALSO TO MISHKIN V. NEW YORK, POST, P. 502. 

MR. JUSTICE HARLAN, DISSENTING. 

I WOULD REVERSE THE CONVICTIONS OF GINZBURG AND HIS THREE CORPORATE
CO-DEFENDANTS.  THE FEDERAL OBSCENITY STATUTE UNDER WHICH THEY WERE
CONVICTED, 18 U.S.C. SEC. 1461 (1964 ED.), IS CONCERNED WITH UNLAWFUL
SHIPMENT OF "NONMAILABLE" MATTER.  IN MY OPINION ANNOUNCING THE
JUDGMENT OF THE COURT IN MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478,
THE BACKGROUND OF THE STATUTE WAS ASSESSED, AND ITS FOCUS WAS SEEN TO
BE SOLELY ON THE CHARACTER OF THE MATERIAL IN QUESTION.  THAT TOO HAS
BEEN THE PREMISE ON WHICH PAST CASES IN THIS COURT ARISING UNDER THIS
STATUTE, OR ITS PREDECESSORS, HAVE BEEN DECIDED.  SEE, E.G., ROTH V.
UNITED STATES, 354 U.S. 476.  I BELIEVE THAT UNDER THIS STATUTE THE
FEDERAL GOVERNMENT IS CONSTITUTIONALLY RESTRICTED TO BANNING FROM THE
MAILS ONLY "HARD-CORE PORNOGRAPHY," SEE MY SEPARATE OPINION IN ROTH,
SUPRA, AT 507, AND MY DISSENTING OPINION IN A BOOK NAMED "JOHN
CLELAND'S MEMOIRS" V. ATTORNEY GENERAL OF MASSACHUSETTS, ANTE, P. 455. 
BECAUSE I DO NOT THINK IT CAN BE MAINTAINED THAT THE MATERIAL IN
QUESTION HERE FALLS WITHIN THAT NARROW CLASS, I DO NOT BELIEVE IT CAN
BE EXCLUDED FROM THE MAILS. 

THE COURT RECOGNIZES THE DIFFICULTY OF JUSTIFYING THESE CONVICTIONS;
THE MAJORITY REFUSES TO APPROVE THE TRIAL JUDGE'S "EXEGESIS OF ROTH"
(NOTE 3, ANTE, P. 465); IT DECLINES TO APPROVE THE TRIAL COURT'S
"CHARACTERIZATIONS" OF THE HANDBOOK "OUTSIDE" THE "SETTING" WHICH THE
MAJORITY FOR THE FIRST TIME ANNOUNCES TO BE CRUCIAL TO THIS CONVICTION
(NOTE 5, ANTE, P. 466).  MOREOVER, THE COURT ACCEPTS THE GOVERNMENT'S
CONCESSION THAT THE HANDBOOK HAS A CERTAIN "WORTH" WHEN SEEN IN
SOMETHING LABELED A "CONTROLLED, OR EVEN NEUTRAL, ENVIRONMENT" (ANTE,
P. 472); THE MAJORITY NOTES THAT THESE ARE "PUBLICATIONS WHICH WE HAVE
ASSUMED  ...  CANNOT THEMSELVES BE ADJUDGED OBSCENE IN THE ABSTRACT"
(ANTE, P. 474).  IN FACT, THE COURT IN THE LAST ANALYSIS SUSTAINS THE
CONVICTIONS ON THE EXPRESS ASSUMPTION THAT THE ITEMS HELD TO BE OBSCENE
ARE NOT, VIEWING THEM STRICTLY, OBSCENE AT ALL (ANTE, P. 466). 

THIS CURIOUS RESULT IS REACHED THROUGH THE ELABORATION OF A THEORY OF
OBSCENITY ENTIRELY UNRELATED TO THE LANGUAGE, PURPOSES, OR HISTORY OF
THE FEDERAL STATUTE NOW BEING APPLIED, AND CERTAINLY DIFFERENT FROM THE
TEST USED BY THE TRIAL COURT TO CONVICT THE DEFENDANTS.  WHILE THE
PRECISE HOLDING OF THE COURT IS OBSCURE, I TAKE IT THAT THE OBJECTIVE
TEST OF ROTH, WHICH ULTIMATELY FOCUSES ON THE MATERIAL IN QUESTION, IS
TO BE SUPPLEMENTED BY ANOTHER TEST THAT GOES TO THE QUESTION WHETHER
THE MAILER'S AIM IS TO "PANDER" TO OR "TITILLATE" THOSE TO WHOM HE
MAILS QUESTIONABLE MATTER. 

ALTHOUGH IT IS NOT CLEAR WHETHER THE MAJORITY VIEW THE PANDERER TEST
AS A STATUTORY GLOSS OR AS CONSTITUTIONAL DOCTRINE, I READ THE OPINION
TO BE IN THE LATTER CATEGORY.  (FN1)  THE FIRST AMENDMENT, IN THE
OBSCENITY AREA, NO LONGER FULLY PROTECTS MATERIAL ON ITS FACE
NONOBSCENE, FOR SUCH MATERIAL MUST NOW ALSO BE EXAMINED IN THE LIGHT OF
THE DEFENDANT'S CONDUCT, ATTITUDE, MOTIVES.  THIS SEEMS TO ME A MERE
EUPHEMISM FOR ALLOWING PUNISHMENT OF A PERSON WHO MAILS OTHERWISE
CONSTITUTIONALLY PROTECTED MATERIAL JUST BECAUSE A JURY OR A JUDGE MAY
NOT FIND HIM OR HIS BUSINESS AGREEABLE.  WERE A STATE TO ENACT A
"PANDERER" STATUTE UNDER ITS POLICE POWER, I HAVE LITTLE DOUBT THAT -
SUBJECT TO CLEAR DRAFTING TO AVOID ATTACKS ON VAGUENESS AND EQUAL
PROTECTION GROUNDS - SUCH A STATUTE WOULD BE CONSTITUTIONAL.  POSSIBLY
THE SAME MIGHT BE TRUE OF THE FEDERAL GOVERNMENT ACTING UNDER ITS
POSTAL OR COMMERCE POWERS.  WHAT I FEAR THE COURT HAS DONE TODAY IS IN
EFFECT TO WRITE A NEW STATUTE, BUT WITHOUT THE SHARPLY FOCUSED
DEFINITIONS AND STANDARDS NECESSARY IN SUCH A SENSITIVE AREA.  CASTING
SUCH A DUBIOUS GLOSS OVER A STRAIGHTFORWARD 101-YEAR-OLD STATUTE (SEE
13 STAT. 507) IS FOR ME AN ASTONISHING PIECE OF JUDICIAL
IMPROVISATION. 

IT SEEMS PERFECTLY CLEAR THAT THE THEORY ON WHICH THESE CONVICTIONS
ARE NOW SUSTAINED IS QUITE DIFFERENT FROM THE BASIS ON WHICH THE CASE
WAS TRIED AND DECIDED BY THE DISTRICT COURT AND AFFIRMED BY THE COURT
OF APPEALS.  (FN2)  THE DISTRICT COURT FOUND THE HANDBOOK "PATENTLY
OFFENSIVE ON ITS FACE" AND WITHOUT "THE SLIGHTEST REDEEMING SOCIAL,
ARTISTIC OR LITERARY IMPORTANCE OR VALUE"; IT HELD THAT THERE WAS "NO
CREDIBLE EVIDENCE THAT THE HANDBOOK HAS THE SLIGHTEST VALID SCIENTIFIC
IMPORTANCE FOR TREATMENT OF INDIVIDUALS IN CLINICAL PSYCHIATRY,
PSYCHOLOGY, OR ANY FIELD OF MEDICINE."  224 F. SUPP. 129, 131.  THE
TRIAL COURT MADE SIMILAR FINDINGS AS TO EROS AND LIAISON.  THE
MAJORITY'S OPINION, AS I READ IT, CASTS DOUBTS UPON THESE EXPLICIT
FINDINGS.  AS TO THE HANDBOOK, THE COURT INTERPRETS AN OFFHAND REMARK
BY THE GOVERNMENT PROSECUTOR AT THE SENTENCING HEARING AS A
"CONCESSION," WHICH THE MAJORITY ACCEPTS, THAT THE PROSECUTION RESTED
UPON THE CONDUCT OF THE PETITIONER, AND THE COURT EXPLICITLY REFUSES TO
ACCEPT THE TRIAL JUDGE'S "CHARACTERIZATIONS" OF THE BOOK, WHICH I TAKE
TO BE AN IMPLIED REJECTION OF THE FINDINGS OF FACT UPON WHICH THE
CONVICTION WAS IN FACT BASED (NOTE 5, ANTE, P. 466).  SIMILARLY AS TO
EROS, THE COURT IMPLIES THAT THE FINDING OF OBSCENITY MIGHT BE
"ERRONEOUS" WERE IT NOT SUPPORTED "BY THE EVIDENCE OF PANDERING" (ANTE,
P. 471).  THE COURT FURTHER CHARACTERIZES THE EROS DECISION, ASIDE FROM
PANDERING, AS "AN OTHERWISE DEBATABLE CONCLUSION" (ANTE, P. 471). 

IF THERE IS ANYTHING TO THIS NEW PANDERING DIMENSION TO THE MAILING
STATUTE, THE COURT SHOULD RETURN THE CASE FOR A NEW TRIAL, FOR
PETITIONERS ARE AT LEAST ENTITLED TO A DAY IN COURT ON THE QUESTION ON
WHICH THEIR GUILT HAS ULTIMATELY COME TO DEPEND.  COMPARE THE ACTION OF
THE COURT IN MEMOIRS V. MASSACHUSETTS, ANTE, P. 413, ALSO DECIDED
TODAY, WHERE THE COURT AFFORDS THE STATE AN OPPORTUNITY TO PROVE IN A
SUBSEQUENT PROSECUTION THAT AN ACCUSED PURVEYOR OF FANNY HILL IN FACT
USED PANDERING METHODS TO SECURE DISTRIBUTION OF THE BOOK. 

IF A NEW TRIAL WERE GIVEN IN THE PRESENT CASE, AS I READ THE COURT'S
OPINION, THE BURDEN WOULD BE ON THE GOVERNMENT TO SHOW THAT THE MOTIVES
OF THE DEFENDANTS WERE TO PANDER TO "THE WIDESPREAD WEAKNESS FOR
TITILLATION BY PORNOGRAPHY" (ANTE, P. 471).  I SUPPOSE THAT AN ANALYSIS
OF THE TYPE OF INDIVIDUALS RECEIVING EROS AND THE HANDBOOK WOULD BE
RELEVANT.  IF THEY WERE ORDINARY PEOPLE, INTERESTED IN PURCHASING EROS
OR THE HANDBOOK FOR ONE OF A DOZEN PERSONAL REASONS, THIS MIGHT BE SOME
EVIDENCE OF PANDERING TO THE GENERAL PUBLIC.  ON THE OTHER HAND, AS THE
COURT SUGGESTS, THE DEFENDANTS COULD EXONERATE THEMSELVES BY SHOWING
THAT THEY SENT THESE WORKS ONLY OR PERHAPS PRIMARILY (NO STANDARDS ARE
SET) TO PSYCHIATRISTS AND OTHER SERIOUS-MINDED PROFESSIONAL PEOPLE. 
ALSO RELEVANT WOULD APPARENTLY BE THE NATURE OF THE MAILER'S
ADVERTISEMENTS OR REPRESENTATIONS.  CONCEIVABLY SOMEONE MAILING TO THE
PUBLIC SELECTIVE PORTIONS OF A RECOGNIZED CLASSIC WITH THE AVOWED
PURPOSE OF TITILLATION WOULD RUN THE RISK OF CONVICTION FOR MAILING
NONMAILABLE MATTER.  PRESUMABLY THE POST OFFICE UNDER THIS THEORY MIGHT
ONCE AGAIN ATTEMPT TO BAN LADY CHATTERLEY'S LOVER, WHICH A LOWER COURT
FOUND NOT BANNABLE IN 1960 BY AN ABSTRACT APPLICATION OF ROTH.  GROVE
PRESS, INC. V. CHRISTENBERRY, 276 F.2D 433.  I WOULD SUPPOSE THAT IF
THE GOVERNMENT COULD SHOW THAT GROVE PRESS IS PANDERING TO PEOPLE WHO
ARE INTERESTED IN THE BOOK'S SEXUAL PASSAGES AND NOT IN D.H. LAWRENCE'S
SOCIAL THEORIES OR LITERARY TECHNIQUE SEC. 1461 COULD PROPERLY BE
INVOKED.  EVEN THE WELL-KNOWN OPINIONS OF JUDGE A.N. HAND IN UNITED
STATES V. ONE BOOK ENTITLED ULYSSES, 72 F.2D 705, AND OF JUDGE WOOLSEY
IN THE DISTRICT COURT, 5 F. SUPP. 182, MIGHT BE RENDERED NUGATORY IF A
MAILER OF ULYSSES IS FOUND TO BE TITILLATING READERS WITH ITS "COARSE,
BLASPHEMOUS, AND OBSCENE" PORTIONS, 72 F.2D, AT 707, RATHER THAN
PILOTING THEM THROUGH THE INTRICACIES OF JOYCE'S STREAM OF
CONSCIOUSNESS. 

IN THE PAST, AS IN THE TRIAL OF THESE PETITIONERS, EVIDENCE AS TO A
DEFENDANT'S CONDUCT WAS ADMISSIBLE ONLY TO SHOW RELEVANT INTENT.  (FN3)
NOW EVIDENCE NOT ONLY AS TO CONDUCT, BUT ALSO AS TO ATTITUDE AND
MOTIVE, IS ADMISSIBLE ON THE PRIMARY QUESTION OF WHETHER THE MATERIAL
MAILED IS OBSCENE.  I HAVE DIFFICULTY SEEING HOW THESE INQUIRIES ARE
LOGICALLY RELATED TO THE QUESTION WHETHER A PARTICULAR WORK IS
OBSCENE.  IN ADDITION, I THINK SUCH A TEST FOR OBSCENITY IS
IMPERMISSIBLY VAGUE, AND UNWARRANTED BY ANYTHING IN THE FIRST AMENDMENT
OR IN 18 U.S.C.  SEC. 1461. 

I WOULD REVERSE THE JUDGMENTS BELOW. 

FN1  THE PREVAILING OPINION IN MEMOIRS V. MASSACHUSETTS, ANTE, P.
413, MAKES CLEARER THE CONSTITUTIONAL RAMIFICATIONS OF THIS NEW
DOCTRINE. 

FN2  ALTHOUGH AT ONE POINT IN ITS OPINION THE COURT OF APPEALS
REFERRED TO "THE SHODDY BUSINESS OF PANDERING," 338 F.2D 12, 15, A
READING OF THE OPINION AS A WHOLE PLAINLY INDICATES THAT THE COURT OF
APPEALS DID NOT AFFIRM THESE CONVICTIONS ON THE BASIS ON WHICH THIS
COURT NOW SUSTAINS THEM. 

FN3  TO SHOW PANDERING, THE COURT RELIES HEAVILY ON THE FACT THAT THE
DEFENDANTS SOUGHT MAILING PRIVILEGES FROM THE POSTMASTERS OF
INTERCOURSE AND BLUE BALL, PENNSYLVANIA, BEFORE SETTLING UPON
MIDDLESEX, NEW JERSEY, AS A MAILING POINT (ANTE, PP. 467-468).  THIS
EVIDENCE WAS ADMITTED, HOWEVER, ONLY TO SHOW REQUIRED SCIENTER, SEE 338
F.2D 12, 16.  ON APPEAL TO THE COURT OF APPEALS AND TO THIS COURT,
PETITIONER GINZBURG ASSERTED THAT AT MOST THE EVIDENCE SHOWS THE INTENT
OF PETITIONER EROS MAGAZINE, INC., AND WAS ERRONEOUSLY USED AGAINST
HIM.  THE COURT OF APPEALS HELD THE POINT DE MINIMIS, 338 F.2D, AT 16
17, ON THE GROUND THAT THE PARTIES HAD STIPULATED THE NECESSARY
INTENT.  THE UNITED STATES, IN ITS BRIEF IN THIS COURT, LIKEWISE VIEWED
THIS EVIDENCE AS RELATING SOLELY TO SCIENTER; NOWHERE DID THE UNITED
STATES ATTEMPT TO SUSTAIN THESE CONVICTIONS ON ANYTHING LIKE A
PANDERING THEORY. 

MR. JUSTICE STEWART, DISSENTING. 

RALPH GINZBURG HAS BEEN SENTENCED TO FIVE YEARS IN PRISON FOR SENDING
THROUGH THE MAIL COPIES OF A MAGAZINE, A PAMPHLET, AND A BOOK.  THERE
WAS TESTIMONY AT HIS TRIAL THAT THESE PUBLICATIONS POSSESS ARTISTIC AND
SOCIAL MERIT.  PERSONALLY, I HAVE A HARD TIME DISCERNING ANY.  MOST OF
THE MATERIAL STRIKES ME AS BOTH VULGAR AND UNEDIFYING.  BUT IF THE
FIRST AMENDMENT MEANS ANYTHING, IT MEANS THAT A MAN CANNOT BE SENT TO
PRISON MERELY FOR DISTRIBUTING PUBLICATIONS WHICH OFFEND A JUDGE'S
ESTHETIC SENSIBILITIES, MINE OR ANY OTHER'S. 

CENSORSHIP REFLECTS A SOCIETY'S LACK OF CONFIDENCE IN ITSELF.  IT IS
A HALLMARK OF AN AUTHORITARIAN REGIME.  LONG AGO THOSE WHO WROTE OUR
FIRST AMENDMENT CHARTED A DIFFERENT COURSE.  THEY BELIEVED A SOCIETY
CAN BE TRULY STRONG ONLY WHEN IT IS TRULY FREE.  IN THE REALM OF
EXPRESSION THEY PUT THEIR FAITH, FOR BETTER OR WORSE, IN THE
ENLIGHTENED CHOICE OF THE PEOPLE, FREE FROM THE INTERFERENCE OF A
POLICEMAN'S INTRUSIVE THUMB OR A JUDGE'S HEAVY HAND.  SO IT IS THAT THE
CONSTITUTION PROTECTS COARSE EXPRESSION AS WELL AS REFINED, AND
VULGARITY NO LESS THAN ELEGANCE.  A BOOK WORTHLESS TO ME MAY CONVEY
SOMETHING OF VALUE TO MY NEIGHBOR.  IN THE FREE SOCIETY TO WHICH OUR
CONSTITUTION HAS COMMITTED US, IT IS FOR EACH TO CHOOSE FOR HIMSELF. 
(FN1) 

BECAUSE SUCH IS THE MANDATE OF OUR CONSTITUTION, THERE IS ROOM FOR
ONLY THE MOST RESTRICTED VIEW OF THIS COURT'S DECISION IN ROTH V.
UNITED STATES, 354 U.S. 476.  IN THAT CASE THE COURT HELD THAT
"OBSCENITY IS NOT WITHIN THE AREA OF CONSTITUTIONALLY PROTECTED SPEECH
OR PRESS."  ID., AT 485.  THE COURT THERE CHARACTERIZED OBSCENITY AS
THAT WHICH IS "UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE," ID., AT
484, "DEALS WITH SEX IN A MANNER APPEALING TO PRURIENT INTEREST," ID.,
AT 487, AND "GOES SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN
DESCRIPTION OR REPRESENTATION OF SUCH MATTERS."  ID., AT 487, N. 20. 
(FN2)  IN MANUAL ENTERPRISES V. DAY, 370 U.S. 478, I JOINED MR. JUSTICE
HARLAN'S OPINION ADDING "PATENT INDECENCY" AS A FURTHER ESSENTIAL
ELEMENT OF THAT WHICH IS NOT CONSTITUTIONALLY PROTECTED.    THERE DOES
EXIST A DISTINCT AND EASILY IDENTIFIABLE CLASS OF MATERIAL IN WHICH ALL
OF THESE ELEMENTS COALESCE.  IT IS THAT, AND THAT ALONE, WHICH I THINK
GOVERNMENT MAY CONSTITUTIONALLY SUPPRESS, WHETHER BY CRIMINAL OR CIVIL
SANCTIONS.  I HAVE REFERRED TO SUCH MATERIAL BEFORE AS HARD-CORE
PORNOGRAPHY, WITHOUT TRYING FURTHER TO DEFINE IT.  JACOBELLIS V. OHIO,
378 U.S. 184, AT 197 (CONCURRING OPINION).  IN ORDER TO PREVENT ANY
POSSIBLE MISUNDERSTANDING, I HAVE SET OUT IN THE MARGIN A DESCRIPTION,
BORROWED FROM THE SOLICITOR GENERAL'S BRIEF, OF THE KIND OF THING TO
WHICH I HAVE REFERENCE.  (FN3)  SEE ALSO LOCKHART AND MCCLURE,
CENSORSHIP OF OBSCENITY: THE DEVELOPING CONSTITUTIONAL STANDARDS, 45
MINN. L. REV. 5, 63-64. 

ALTHOUGH ARGUMENTS CAN BE MADE TO THE CONTRARY, I ACCEPT THE
PROPOSITION THAT THE GENERAL DISSEMINATION OF MATTER OF THIS
DESCRIPTION MAY BE SUPPRESSED UNDER VALID LAWS.  (FN4)  THAT HAS LONG
BEEN THE ALMOST UNIVERSAL JUDGMENT OF OUR SOCIETY.  SEE ROTH V. UNITED
STATES, 354 U.S., AT 485.  BUT MATERIAL OF THIS SORT IS WHOLLY
DIFFERENT FROM THE PUBLICATIONS MAILED BY GINZBURG IN THE PRESENT CASE,
AND DIFFERENT NOT IN DEGREE BUT IN KIND. 

THE COURT TODAY APPEARS TO CONCEDE THAT THE MATERIALS GINZBURG MAILED
WERE THEMSELVES PROTECTED BY THE FIRST AMENDMENT.  BUT, THE COURT SAYS,
GINZBURG CAN STILL BE SENTENCED TO FIVE YEARS IN PRISON FOR MAILING
THEM.  WHY?  BECAUSE, SAYS THE COURT, HE WAS GUILTY OF "COMMERCIAL
EXPLOITATION," OF "PANDERING," AND OF "TITILLATION."  BUT GINZBURG WAS
NOT CHARGED WITH "COMMERCIAL EXPLOITATION"; HE WAS NOT CHARGED WITH
"PANDERING"; HE WAS NOT CHARGED WITH "TITILLATION."  THEREFORE, TO
AFFIRM HIS CONVICTION NOW ON ANY OF THOSE GROUNDS, EVEN IF OTHERWISE
VALID, IS TO DENY HIM DUE PROCESS OF LAW.  COLE V. ARKANSAS, 333 U.S.
196.  BUT THOSE GROUNDS ARE NOT, OF COURSE, OTHERWISE VALID.  NEITHER
THE STATUTE UNDER WHICH GINZBURG WAS CONVICTED NOR ANY OTHER FEDERAL
STATUTE I KNOW OF MAKES "COMMERCIAL EXPLOITATION" OR "PANDERING" OR
"TITILLATION" A CRIMINAL OFFENSE.  AND ANY CRIMINAL LAW THAT SOUGHT TO
DO SO IN THE TERMS SO ELUSIVELY DEFINED BY THE COURT WOULD, OF COURSE,
BE UNCONSTITUTIONALLY VAGUE AND THEREFORE VOID.  ALL OF THESE MATTERS
ARE DEVELOPED IN THE DISSENTING OPINIONS OF MY BRETHREN, AND I SIMPLY
NOTE HERE THAT I FULLY AGREE WITH THEM. 

FOR ME, HOWEVER, THERE IS ANOTHER ASPECT OF THE COURT'S OPINION IN
THIS CASE THAT IS EVEN MORE REGRETTABLE.  TODAY THE COURT ASSUMES THE
POWER TO DENY RALPH GINZBURG THE PROTECTION OF THE FIRST AMENDMENT
BECAUSE IT DISAPPROVES OF HIS "SORDID BUSINESS."  THAT IS A POWER THE
COURT DOES NOT POSSESS.  FOR THE FIRST AMENDMENT PROTECTS US ALL WITH
AN EVEN HAND.  IT APPLIES TO RALPH GINZBURG WITH NO LESS COMPLETENESS
AND FORCE THAN TO G.P. PUTNAM'S SONS.  (FN5)  IN UPHOLDING AND
ENFORCING THE BILL OF RIGHTS, THIS COURT HAS NO POWER TO PICK OR TO
CHOOSE.  WHEN WE LOSE SIGHT OF THAT FIXED STAR OF CONSTITUTIONAL
ADJUDICATION, WE LOSE OUR WAY.  FOR THEN WE FORSAKE A GOVERNMENT OF LAW
AND ARE LEFT WITH GOVERNMENT BY BIG BROTHER. 

I DISSENT. 

FN1  DIFFERENT CONSTITUTIONAL QUESTIONS WOULD ARISE IN A CASE
INVOLVING AN ASSAULT UPON INDIVIDUAL PRIVACY BY PUBLICATION IN A MANNER
SO BLATANT OR OBTRUSIVE AS TO MAKE IT DIFFICULT OR IMPOSSIBLE FOR AN
UNWILLING INDIVIDUAL TO AVOID EXPOSURE TO IT.  CF. E.G., BREARD V.
ALEXANDRIA, 341 U.S. 622; PUBLIC UTILITIES COMMISSION OF THE DISTRICT
OF COLUMBIA V. POLLAK, 343 U.S. 451; GRISWOLD V. CONNECTICUT, 381 U.S.
479.  STILL OTHER CONSIDERATIONS MIGHT COME INTO PLAY WITH RESPECT TO
LAWS LIMITED IN THEIR EFFECT TO THOSE DEEMED INSUFFICIENTLY ADULT TO
MAKE AN INFORMED CHOICE.  NO SUCH ISSUES WERE TENDERED IN THIS CASE. 

FN2  IT IS NOT ACCURATE TO SAY THAT THE ROTH OPINION "FASHIONED
STANDARDS" FOR OBSCENITY, BECAUSE, AS THE COURT EXPLICITLY STATED, NO
ISSUE WAS THERE PRESENTED AS TO THE OBSCENITY OF THE MATERIAL
INVOLVED.  354 U.S., AT 481, N. 8.  AND IN NO SUBSEQUENT CASE HAS A
MAJORITY OF THE COURT BEEN ABLE TO AGREE ON ANY SUCH "STANDARDS." 

FN3  "  ...  SUCH MATERIALS INCLUDE PHOTOGRAPHS, BOTH STILL AND MOTION
PICTURE, WITH NO PRETENSE OF ARTISTIC VALUE, GRAPHICALLY DEPICTING ACTS
OF SEXUAL INTERCOURSE, INCLUDING VARIOUS ACTS OF SODOMY AND SADISM, AND
SOMETIMES INVOLVING SEVERAL PARTICIPANTS IN SCENES OF ORGY-LIKE
CHARACTER.  THEY ALSO INCLUDE STRIPS OF DRAWINGS IN COMIC-BOOK FORMAT
GROSSLY DEPICTING SIMILAR ACTIVITIES IN AN EXAGGERATED FASHION.  THERE
ARE, IN ADDITION, PAMPHLETS AND BOOKLETS, SOMETIMES WITH PHOTOGRAPHIC
ILLUSTRATIONS, VERBALLY DESCRIBING SUCH ACTIVITIES IN A BIZARRE MANNER
WITH NO ATTEMPT WHATSOEVER TO AFFORD PORTRAYALS OF CHARACTER OR
SITUATION AND WITH NO PRETENSE TO LITERARY VALUE.  ALL OF THIS MATERIAL
...  CANNOT CONCEIVABLY BE CHARACTERIZED AS EMBODYING COMMUNICATION OF
IDEAS OR ARTISTIC VALUES INVIOLATE UNDER THE FIRST AMENDMENT  ...  ." 

FN4  DURING ORAL ARGUMENT WE WERE ADVISED BY GOVERNMENT COUNSEL THAT
THE VAST MAJORITY OF PROSECUTIONS UNDER THIS STATUTE INVOLVE MATERIAL
OF THIS NATURE.  SUCH PROSECUTIONS USUALLY RESULT IN GUILTY PLEAS AND
NEVER COME TO THIS COURT. 

FN5  SEE MEMOIRS V. MASSACHUSETTS, ANTE, P. 413. 
..END :























MISHKIN V. NEW YORK 383 U.S. 502 


NO. 49.  ARGUED DECEMBER 7, 1965.  - DECIDED MARCH 21, 1966.  - 15
N.Y.2D 671, 724, 204 N.E.2D 209, 205 N.E.2D 201, AFFIRMED. 


APPELLANT WAS CONVICTED OF VIOLATING SEC. 1141 OF THE NEW YORK PENAL
LAW FOR PUBLISHING, HIRING OTHERS TO PREPARE, AND POSSESSING WITH
INTENT TO SELL OBSCENE BOOKS.  HELD: 

1.  THE STATUTE IS NOT IMPERMISSIBLY VAGUE.  ROTH V. UNITED STATES,
354 U.S. 476, 491-492.  PP. 506-507. 

2.  THE BOOKS WERE PROPERLY FOUND TO BE OBSCENE.  WHERE THE MATERIAL
IS DESIGNED FOR AND PRIMARILY DISSEMINATED TO A CLEARLY DEFINED DEVIANT
SEXUAL GROUP, RATHER THAN THE PUBLIC AT LARGE, THE PRURIENT-APPEAL
REQUIREMENT OF THE ROTH TEST IS SATISFIED IF THE DOMINANT THEME OF THE
MATERIAL TAKEN AS A WHOLE APPEALS TO THE PRURIENT INTEREST IN SEX OF
THE MEMBERS OF THAT GROUP.  P. 508. 

3.  THERE WAS AMPLE EVIDENCE THAT APPELLANT POSSESSED THE REQUISITE
SCIENTER.  PP. 510-512. 

4.  THE UNRESTRICTED NOTATION OF PROBABLE JURISDICTION OF THE APPEAL
MAY BE REGARDED AS A GRANT OF THE WRIT OF CERTIORARI AS TO APPELLANT'S
CLAIM THAT THE BOOKS HAD BEEN ILLEGALLY SEIZED AND THAT THEIR ADMISSION
INTO EVIDENCE WAS THEREFORE IMPROPER.  HOWEVER, SUCH WRIT IS DISMISSED
AS IMPROVIDENTLY GRANTED FOR LACK OF SUFFICIENT CLARITY IN THE RECORD
AS TO JUSTIFY RESOLUTION OF THE ISSUE.  PP. 512-514. 

MISHKIN V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE GINZBURG V. UNITED STATES, ANTE, P. 463, ALSO DECIDED
TODAY, INVOLVES CONVICTIONS UNDER A CRIMINAL OBSCENITY STATUTE.  A
PANEL OF THREE JUDGES OF THE COURT OF SPECIAL SESSIONS OF THE CITY OF
NEW YORK FOUND APPELLANT GUILTY OF VIOLATING SEC. 1141 OF THE NEW YORK
PENAL LAW (FN1) BY HIRING OTHERS TO PREPARE OBSCENE BOOKS, PUBLISHING
OBSCENE BOOKS, AND POSSESSING OBSCENE BOOKS WITH INTENT TO SELL THEM. 
(FN2)  26 MISC. 2D 152, 207 N.Y.S.2D 390 (1960).  HE WAS SENTENCED TO
PRISON TERMS AGGREGATING THREE YEARS AND ORDERED TO PAY $12,000 IN
FINES FOR THESE CRIMES.  (FN3)  THE APPELLATE DIVISION, FIRST
DEPARTMENT, AFFIRMED THOSE CONVICTIONS.  17 APP. DIV. 2D 243, 234
N.Y.S.2D 342 (1962).  THE COURT OF APPEALS AFFIRMED WITHOUT OPINION. 
15 N.Y.2D 671, 204 N.E.2D 209 (1964), REMITTITUR AMENDED, 15 N.Y.2D
724, 205 N.E.2D 201 (1965).  WE NOTED PROBABLE JURISDICTION.  380 U.S.
960.  WE AFFIRM. 

APPELLANT WAS NOT PROSECUTED FOR ANYTHING HE SAID OR BELIEVED, BUT
FOR WHAT HE DID, FOR HIS DOMINANT ROLE IN SEVERAL ENTERPRISES ENGAGED
IN PRODUCING AND SELLING ALLEGEDLY OBSCENE BOOKS.  FIFTY BOOKS ARE
INVOLVED IN THIS CASE.  THEY PORTRAY SEXUALITY IN MANY GUISES.  SOME
DEPICT RELATIVELY NORMAL HETEROSEXUAL RELATIONS, BUT MORE DEPICT SUCH
DEVIATIONS AS SADO-MASOCHISM, FETISHISM, AND HOMOSEXUALITY.  MANY HAVE
COVERS WITH DRAWINGS OF SCANTILY CLAD WOMEN BEING WHIPPED, BEATEN,
TORTURED, OR ABUSED.  MANY, IF NOT MOST, ARE PHOTO-OFFSETS OF
TYPEWRITTEN BOOKS WRITTEN AND ILLUSTRATED BY AUTHORS AND ARTISTS
ACCORDING TO DETAILED INSTRUCTIONS GIVEN BY THE APPELLANT.  TYPICAL OF
APPELLANT'S INSTRUCTIONS WAS THAT RELATED BY ONE AUTHOR WHO TESTIFIED
THAT APPELLANT INSISTED THAT THE BOOKS BE "FULL OF SEX SCENES AND
LESBIAN SCENES  ...  .  THE SEX HAD TO BE VERY STRONG, IT HAD TO BE
ROUGH, IT HAD TO BE CLEARLY SPELLED OUT  ...  .  I HAD TO WRITE SEX
VERY BLUNTLY, MAKE THE SEX SCENES VERY STRONG  ...  .  THE SEX SCENES
HAD TO BE UNUSUAL SEX SCENES BETWEEN MEN AND WOMEN, AND WOMEN AND
WOMEN, AND MEN AND MEN  ...  .  HE WANTED SCENES IN WHICH WOMEN WERE
MAKING LOVE WITH WOMEN  ...  .  HE WANTED SEX SCENES  ...  IN WHICH
THERE WERE LESBIAN SCENES.  HE DIDN'T CALL IT LESBIAN, BUT HE DESCRIBED
WOMEN MAKING LOVE TO WOMEN AND MEN  ...  MAKING LOVE TO MEN, AND THERE
WERE SPANKINGS AND SCENES - SEX IN AN ABNORMAL AND IRREGULAR FASHION." 
ANOTHER AUTHOR TESTIFIED THAT APPELLANT INSTRUCTED HIM "TO DEAL VERY
GRAPHICALLY WITH  ...  THE DARKENING OF THE FLESH UNDER FLAGELLATION
...  ."  ARTISTS TESTIFIED IN SIMILAR VEIN AS TO APPELLANT'S
INSTRUCTIONS REGARDING ILLUSTRATIONS AND COVERS FOR THE BOOKS. 

ALL THE BOOKS ARE CHEAPLY PREPARED PAPERBOUND "PULPS" WITH IMPRINTED
SALES PRICES THAT ARE SEVERAL THOUSAND PERCENT ABOVE COSTS.  ALL BUT
THREE WERE PRINTED BY A PHOTO-OFFSET PRINTER WHO WAS PAID 40 CENTS OR
15 CENTS PER COPY, DEPENDING ON WHETHER IT WAS A "THICK" OR "THIN"
BOOK.  THE PRINTER WAS INSTRUCTED BY APPELLANT NOT TO USE APPELLANT'S
NAME AS PUBLISHER BUT TO PRINT SOME FICTITIOUS NAME ON EACH BOOK, TO
"MAKE UP ANY NAME AND ADDRESS."  APPELLANT STORED BOOKS ON THE
PRINTER'S PREMISES AND PAID PART OF THE PRINTER'S RENT FOR THE STORAGE
SPACE.  THE PRINTER FILLED ORDERS FOR THE BOOKS, AT APPELLANT'S
DIRECTION, DELIVERING THEM TO APPELLANT'S RETAIL STORE, PUBLISHERS'
OUTLET, AND, ON OCCASION, SHIPPING BOOKS TO OTHER PLACES.  APPELLANT
PAID THE AUTHORS, ARTISTS, AND PRINTER CASH FOR THEIR SERVICES, USUALLY
AT HIS BOOKSTORE. 

                                           I. 

APPELLANT ATTACKS SEC. 1141 AS INVALID ON ITS FACE, CONTENDING THAT
IT EXCEEDS FIRST AMENDMENT LIMITATIONS BY PROSCRIBING PUBLICATIONS THAT
ARE MERELY SADISTIC OR MASOCHISTIC, THAT THE TERMS "SADISTIC" AND
"MASOCHISTIC" ARE IMPERMISSIBLY VAGUE, AND THAT THE TERM "OBSCENE" IS
ALSO IMPERMISSIBLY VAGUE.  WE NEED NOT DECIDE THE MERITS OF THE FIRST
TWO CONTENTIONS, FOR THE NEW YORK COURTS HELD IN THIS CASE THAT THE
TERMS "SADISTIC" AND "MASOCHISTIC," AS WELL AS THE OTHER ADJECTIVES
USED IN SEC. 1141 TO DESCRIBE PROSCRIBED BOOKS, ARE "SYNONYMOUS WITH
'OBSCENE.'"  THE CONTENTION THAT THE TERM "OBSCENE" IS ALSO
IMPERMISSIBLY VAGUE FAILS UNDER OUR HOLDING IN ROTH V. UNITED STATES,
354 U.S. 476, 491-492.  INDEED, THE DEFINITION OF "OBSCENE" ADOPTED BY
THE NEW YORK COURTS IN INTERPRETING SEC. 1141 DELIMITS A NARROWER CLASS
OF CONDUCT THAT THAT DELIMITED UNDER THE ROTH DEFINITION, PEOPLE V.
RICHMOND COUNTY NEWS, INC., 9 N.Y.2D 578, 586-587, 175 N.E.2D 681, 685
686 (1961), (FN4) AND THUS SEC. 1141, LIKE THE STATUTES IN ROTH,
PROVIDES REASONABLY ASCERTAINABLE STANDARDS OF GUILT.  (FN5) 

APPELLANT ALSO OBJECTS THAT SEC. 1141 IS INVALID AS APPLIED, FIRST,
BECAUSE THE BOOKS HE WAS CONVICTED OF PUBLISHING, HIRING OTHERS TO
PREPARE, AND POSSESSING FOR SALE ARE NOT OBSCENE, AND SECOND, BECAUSE
THE PROOF OF SCIENTER IS INADEQUATE. 

1.  THE NATURE OF THE MATERIAL.  - THE FIRST AMENDMENT PROHIBITS
CRIMINAL PROSECUTION FOR THE PUBLICATION AND DISSEMINATION OF ALLEGEDLY
OBSCENE BOOKS THAT DO NOT SATISFY THE ROTH DEFINITION OF OBSCENITY. 
STATES ARE FREE TO ADOPT OTHER DEFINITIONS OF OBSCENITY ONLY TO THE
EXTENT THAT THOSE ADOPTED STAY WITHIN THE BOUNDS SET BY THE
CONSTITUTIONAL CRITERIA OF THE ROTH DEFINITION, WHICH RESTRICT THE
REGULATION OF THE PUBLICATION AND SALE OF BOOKS TO THAT TRADITIONALLY
AND UNIVERSALLY TOLERATED IN OUR SOCIETY. 

THE NEW YORK COURTS HAVE INTERPRETED OBSCENITY IN SEC. 1141 TO COVER
ONLY SO-CALLED "HARD-CORE PORNOGRAPHY," SEE PEOPLE V. RICHMOND COUNTY
NEWS, INC., 9 N.Y.2D 578, 586-587, 175 N.E.2D 681, 685-686 (1961),
QUOTED IN NOTE 4, SUPRA.  SINCE THAT DEFINITION OF OBSCENITY IS MORE
STRINGENT THAN THE ROTH DEFINITION, THE JUDGMENT THAT THE
CONSTITUTIONAL CRITERIA ARE SATISFIED IS IMPLICIT IN THE APPLICATION OF
SEC. 1141 BELOW.  INDEED, APPELLANT'S SOLE CONTENTION REGARDING THE
NATURE OF THE MATERIAL IS THAT SOME OF THE BOOKS INVOLVED IN THIS
PROSECUTION, (FN6) THOSE DEPICTING VARIOUS DEVIANT SEXUAL PRACTICES,
SUCH AS FLAGELLATION, FETISHISM, AND LESBIANISM, DO NOT SATISFY THE
PRURIENT-APPEAL REQUIREMENT BECAUSE THEY DO NOT APPEAL TO A PRURIENT
INTEREST OF THE "AVERAGE PERSON" IN SEX, THAT "INSTEAD OF STIMULATING
THE EROTIC, THEY DISGUST AND SICKEN."  WE REJECT THIS ARGUMENT AS BEING
FOUNDED ON AN UNREALISTIC INTERPRETATION OF THE PRURIENT-APPEAL
REQUIREMENT. 

WHERE THE MATERIAL IS DESIGNED FOR AND PRIMARILY DISSEMINATED TO A
CLEARLY DEFINED DEVIANT SEXUAL GROUP, RATHER THAN THE PUBLIC AT LARGE,
THE PRURIENT-APPEAL REQUIREMENT OF THE ROTH TEST IS SATISFIED IF THE
DOMINANT THEME OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO THE PRURIENT
INTEREST IN SEX OF THE MEMBERS OF THAT GROUP.  THE REFERENCE TO THE
"AVERAGE" OR "NORMAL" PERSON IN ROTH, 354 U.S., AT 489-490, DOES NOT
FORECLOSE THIS HOLDING.  (FN7)  IN REGARD TO THE PRURIENT-APPEAL
REQUIREMENT, THE CONCEPT OF THE "AVERAGE" OR "NORMAL" PERSON WAS
EMPLOYED IN ROTH TO SERVE THE ESSENTIALLY NEGATIVE PURPOSE OF
EXPRESSING OUR REJECTION OF THAT ASPECT OF THE HICKLIN TEST, REGINA V.
HICKLIN, (1868) L.R. 3 Q.B. 360, THAT MADE THE IMPACT ON THE MOST
SUSCEPTIBLE PERSON DETERMINATIVE.  WE ADJUST THE PRURIENT-APPEAL
REQUIREMENT TO SOCIAL REALITIES BY PERMITTING THE APPEAL OF THIS TYPE
OF MATERIAL TO BE ASSESSED IN TERMS OF THE SEXUAL INTERESTS OF ITS
INTENDED AND PROBABLE RECIPIENT GROUP; AND SINCE OUR HOLDING REQUIRES
THAT THE RECIPIENT GROUP BE DEFINED WITH MORE SPECIFICITY THAN IN TERMS
OF SEXUALLY IMMATURE PERSONS, (FN8) IT ALSO AVOIDS THE INADEQUACY OF
THE MOST-SUSCEPTIBLE-PERSON FACET OF THE HICKLIN TEST. 

NO SUBSTANTIAL CLAIM IS MADE THAT THE BOOKS DEPICTING SEXUALLY
DEVIANT PRACTICES ARE DEVOID OF PRURIENT APPEAL TO SEXUALLY DEVIANT
GROUPS.  THE EVIDENCE FULLY ESTABLISHES THAT THESE BOOKS WERE
SPECIFICALLY CONCEIVED AND MARKETED FOR SUCH GROUPS.  APPELLANT
INSTRUCTED HIS AUTHORS AND ARTISTS TO PREPARE THE BOOKS EXPRESSLY TO
INDUCE THEIR PURCHASE BY PERSONS WHO WOULD PROBABLY BE SEXUALLY
STIMULATED BY THEM.  IT WAS FOR THIS REASON THAT APPELLANT "WANTED AN
EMPHASIS ON BEATINGS AND FETISHISM AND CLOTHING - IRREGULAR CLOTHING,
AND THAT SORT OF THING, AND AGAIN SEX SCENES BETWEEN WOMEN; ALWAYS SEX
SCENES HAD TO BE VERY STRONG."  AND TO BE CERTAIN THAT AUTHORS
FULFILLED HIS PURPOSE, APPELLANT FURNISHED THEM WITH SUCH SOURCE
MATERIALS AS CAPRIO, VARIATIONS IN SEXUAL BEHAVIOR, AND KRAFFT-EBING,
PSYCHOPATHIA SEXUALIS.  NOT ONLY WAS THERE PROOF OF THE BOOKS' PRURIENT
APPEAL, COMPARE UNITED STATES V. KLAW, 350 F.2D 155 (C.A.2D CIR. 1965),
BUT THE PROOF WAS COMPELLING; IN ADDITION APPELLANT'S OWN EVALUATION OF
HIS MATERIAL CONFIRMS SUCH A FINDING.  SEE GINZBURG V. UNITED STATES,
ANTE, P. 463. 

2.  SCIENTER.  - IN PEOPLE V. FINKELSTEIN, 9 N.Y.2D 342, 344-345, 174
N.E.2D 470, 471 (1961), THE NEW YORK COURT OF APPEALS AUTHORITATIVELY
INTERPRETED SEC. 1141 TO REQUIRE THE "VITAL ELEMENT OF SCIENTER," AND
IT DEFINED THE REQUIRED MENTAL ELEMENT IN THESE TERMS: 

"A READING OF THE STATUTE (SEC. 1141) AS A WHOLE CLEARLY INDICATES
THAT ONLY THOSE WHO ARE IN SOME MANNER AWARE OF THE CHARACTER OF THE
MATERIAL THEY ATTEMPT TO DISTRIBUTE SHOULD BE PUNISHED.  IT IS NOT
INNOCENT BUT CALCULATED PURVEYANCE OF FILTH WHICH IS EXORCISED  ...
."  (FN9) 

APPELLANT'S CHALLENGE TO THE VALIDITY OF SEC. 1141 FOUNDED ON SMITH
V. CALIFORNIA, 361 U.S. 147, IS THUS FORECLOSED, (FN10) AND THIS
CONSTRUCTION OF SEC. 1141 MAKES IT UNNECESSARY FOR US TO DEFINE TODAY
"WHAT SORT OF MENTAL ELEMENT IS REQUISITE TO A CONSTITUTIONALLY
PERMISSIBLE PROSECUTION."  ID., AT 154.  THE CONSTITUTION REQUIRES
PROOF OF SCIENTER TO AVOID THE HAZARD OF SELF-CENSORSHIP OF
CONSTITUTIONALLY PROTECTED MATERIAL AND TO COMPENSATE FOR THE
AMBIGUITIES INHERENT IN THE DEFINITION OF OBSCENITY.  THE NEW YORK
DEFINITION OF THE SCIENTER REQUIRED BY SEC. 1141 AMPLY SERVES THOSE
ENDS, AND THEREFORE FULLY MEETS THE DEMANDS OF THE CONSTITUTION. 
(FN11)  CF. ROTH V. UNITED STATES, 354 U.S., AT 495-496 (WARREN, C.J.,
CONCURRING). 

APPELLANT'S PRINCIPAL ARGUMENT IS THAT THERE WAS INSUFFICIENT PROOF
OF SCIENTER.  THIS ARGUMENT IS WITHOUT MERIT.  THE EVIDENCE OF SCIENTER
IN THIS RECORD CONSISTS, IN PART, OF APPELLANT'S INSTRUCTIONS TO HIS
ARTISTS AND WRITERS; HIS EFFORTS TO DISGUISE HIS ROLE IN THE ENTERPRISE
THAT PUBLISHED AND SOLD THE BOOKS; THE TRANSPARENCY OF THE CHARACTER OF
THE MATERIAL IN QUESTION, HIGHLIGHTED BY THE TITLES, COVERS, AND
ILLUSTRATIONS; THE MASSIVE NUMBER OF OBSCENE BOOKS APPELLANT PUBLISHED,
HIRED OTHERS TO PREPARE, AND POSSESSED FOR SALE, THE REPETITIVE QUALITY
OF THE SEQUENCES AND FORMATS OF THE BOOKS; AND THE EXORBITANT PRICES
MARKED ON THE BOOKS.  THIS EVIDENCE AMPLY SHOWS THAT APPELLANT WAS
"AWARE OF THE CHARACTER OF THE MATERIAL" AND THAT HIS ACTIVITY WAS "NOT
INNOCENT BUT CALCULATED PURVEYANCE OF FILTH." 

                                        II. 

APPELLANT CLAIMS THAT ALL BUT ONE OF THE BOOKS WERE IMPROPERLY
ADMITTED IN EVIDENCE BECAUSE THEY WERE FRUITS OF ILLEGAL SEARCHES AND
SEIZURES.  THIS CLAIM IS NOT CAPABLE IN ITSELF OF BEING BROUGHT HERE BY
APPEAL, BUT ONLY BY A PETITION FOR A WRIT OF CERTIORARI UNDER 28 U.S.C.
SEC. 1257(3) (1964 ED.)  AS SPECIFICALLY SETTING UP A FEDERAL
CONSTITUTIONAL RIGHT.  (FN12)  NEVERTHELESS, SINCE APPELLANT CHALLENGED
THE CONSTITUTIONALITY OF SEC. 1141 IN THIS PROSECUTION, AND THE NEW
YORK COURTS SUSTAINED THE STATUTE, THE CASE IS PROPERLY HERE ON APPEAL,
AND OUR UNRESTRICTED NOTATION OF PROBABLY JURISDICTION JUSTIFIED
APPELLANT'S BRIEFING OF THE SEARCH AND SEIZURE ISSUE.  FLOURNOY V.
WEINER, 321 U.S. 253, 263; PRUDENTIAL INS. CO. V. CHEEK, 259 U.S. 530,
547.  THE NONAPPEALABLE ISSUE IS TREATED, HOWEVER, AS IF CONTAINED IN A
PETITION FOR A WRIT OF CERTIORARI, SEE 28 U.S.C. SEC. 2103 (1964 ED.),
AND THE UNRESTRICTED NOTATION OF PROBABLY JURISDICTION OF THE APPEAL IS
TO BE UNDERSTOOD AS A GRANT OF THE WRIT ON THAT ISSUE.  THE ISSUE THUS
REMAINS WITHIN OUR CERTIORARI JURISDICTION, AND WE MAY, FOR GOOD
REASON, EVEN AT THIS STAGE, DECLINE TO DECIDE THE MERITS OF THE ISSUE,
MUCH AS WE WOULD DISMISS A WRIT OF CERTIORARI AS IMPROVIDENTLY
GRANTED.  WE THINK THAT THIS IS A CASE FOR SUCH AN EXERCISE OF OUR
DISCRETION. 

THE FAR-REACHING AND IMPORTANT QUESTIONS TENDERED BY THIS CLAIM ARE
NOT PRESENTED BY THE RECORD WITH SUFFICIENT CLARITY TO REQUIRE OR
JUSTIFY THEIR DECISION.  APPELLANT'S STANDING TO ASSERT THE CLAIM IN
REGARD TO ALL THE SEIZURES IS NOT ENTIRELY CLEAR; THERE IS NO FINDING
ON THE EXTENT OR NATURE OF HIS INTEREST IN TWO BOOK STORES, THE MAIN
STEM BOOK SHOP AND MIDGET BOOK SHOP, IN WHICH SOME OF THE BOOKS WERE
SEIZED.  THE STATE SEEKS TO JUSTIFY THE BASEMENT STOREROOM SEIZURE, IN
PART, ON THE BASIS OF THE CONSENT OF THE PRINTER-ACCOMPLICE; BUT THERE
WERE NO FINDINGS AS TO THE AUTHORITY OF THE PRINTER OVER THE ACCESS TO
THE STOREROOM, OR AS TO THE VOLUNTARINESS OF HIS ALLEGED CONSENT.  IT
IS ALSO MAINTAINED THAT THE SEIZURE IN THE STOREROOM WAS MADE ON THE
AUTHORITY OF A SEARCH WARRANT; YET NEITHER THE AFFIDAVIT UPON WHICH THE
WARRANT ISSUED NOR THE WARRANT ITSELF IS IN THE RECORD.  FINALLY, WHILE
THE SEARCH AND SEIZURE ISSUE HAS A FIRST AMENDMENT ASPECT BECAUSE OF
THE ALLEGED MASSIVE QUALITY OF THE SEIZURES, SEE A QUANTITY OF COPIES
OF BOOKS V. KANSAS, 378 U.S. 205, 206 (OPINION OF BRENNAN, J.); MARCUS
V. SEARCH WARRANT, 367 U.S. 717, THE RECORD IN THIS REGARD IS
INADEQUATE.  THERE IS NEITHER EVIDENCE NOR FINDINGS AS TO HOW MANY OF
THE TOTAL AVAILABLE COPIES OF THE BOOKS IN THE VARIOUS BOOKSTORES WERE
SEIZED AND IT IS IMPOSSIBLE TO DETERMINE WHETHER THE BOOKS SEIZED IN
THE BASEMENT STOREROOM WERE ON THE THRESHOLD OF DISSEMINATION.  INDEED,
THIS FIRST AMENDMENT ASPECT APPARENTLY WAS NOT PRESENTED OR CONSIDERED
BY THE STATE COURTS, NOR WAS IT RAISED IN APPELLANT'S JURISDICTIONAL
STATEMENT; IT APPEARED FOR THE FIRST TIME IN HIS BRIEF ON THE MERITS. 
IN LIGHT OF THESE CIRCUMSTANCES, WHICH WERE NOT FULLY APPREHENDED AT
THE TIME WE TOOK THE CASE, WE DECLINE TO REACH THE MERITS OF THE SEARCH
AND SEIZURE CLAIM; INSOFAR AS NOTATION OF PROBABLE JURISDICTION MAY BE
REGARDED AS A GRANT OF THE CERTIORARI WRIT ON THE SEARCH AND SEIZURE
ISSUE, THAT WRIT IS DISMISSED AS IMPROVIDENTLY GRANTED.  "EXAMINATION
OF A CASE ON THE MERITS  ...  MAY BRING INTO 'PROPER FOCUS' A
CONSIDERATION WHICH  ...  LATER INDICATES THAT THE GRANT WAS
IMPROVIDENT."  THE MONROSA V. CARBON BLACK, 359 U.S. 180, 184. 
AFFIRMED. 

FN1  SECTION 1141 OF THE PENAL LAW, IN PERTINENT PART, READS AS
FOLLOWS: 

"1.  A PERSON WHO  ...  HAS IN HIS POSSESSION WITH INTENT TO SELL,
LEND, DISTRIBUTE  ...  ANY OBSCENE, LEWD, LASCIVIOUS, FILTHY, INDECENT,
SADISTIC, MASOCHISTIC OR DISGUSTING BOOK  ...  OR WHO ...  PRINTS,
UTTERS, PUBLISHES, OR IN ANY MANNER MANUFACTURES, OR PREPARES ANY SUCH
BOOK  ...  OR WHO: 

"2.  IN ANY MANNER, HIRES, EMPLOYS, USES OR PERMITS ANY PERSON TO DO
OR ASSIST IN DOING ANY ACT OR THING MENTIONED IN THIS SECTION, OR ANY
OF THEM, 

"IS GUILTY OF A MISDEMEANOR  ...  . 

     *         *         *         *         * 

"4.  THE POSSESSION BY ANY PERSON OF SIX OR MORE IDENTICAL OR SIMILAR
ARTICLES COMING WITHIN THE PROVISIONS OF SUBDIVISION ONE OF THIS

"5.  THE PUBLICATION FOR SALE OF ANY BOOK, MAGAZINE OR PAMPHLET
DESIGNED, COMPOSED OR ILLUSTRATED AS A WHOLE TO APPEAL TO AND
COMMERCIALLY EXPLOIT PRURIENT INTEREST BY COMBINING COVERS, PICTURES,
DRAWINGS, ILLUSTRATIONS, CARICATURES, CARTOONS, WORDS, STORIES AND
ADVERTISEMENTS OR ANY COMBINATION OR COMBINATIONS THEREOF DEVOTED TO
THE DESCRIPTION, PORTRAYAL OR DELIBERATE SUGGESTION OF ILLICIT SEX,
INCLUDING ADULTERY, PROSTITUTION, FORNICATION, SEXUAL CRIME AND SEXUAL
PERVISION OR TO THE EXPLOITATION OF SEX AND NUDITY BY THE PRESENTATION
OF NUDE OR PARTIALLY NUDE FEMALE FIGURES, POSED, PHOTOGRAPHED OR
OTHERWISE PRESENTED IN A MANNER CALCULATED TO PROVOKE OR INCITE
PRURIENT INTEREST, OR ANY COMBINATION OR COMBINATIONS THEREOF, SHALL BE
A VIOLATION OF THIS SECTION." 

FN2  THE INFORMATION CHARGED 159 COUNTS OF VIOLATING SEC. 1141; IN
EACH INSTANCE A SINGLE COUNT NAMED A SINGLE BOOK, ALTHOUGH OFTEN THE
SAME BOOK WAS THE BASIS OF THREE COUNTS, EACH ALLEGING ONE OF THE THREE
TYPES OF SEC. 1141 OFFENSES.  OF THESE, 11 COUNTS WERE DISMISSED ON
MOTION OF THE PROSECUTOR AT THE OUTSET OF THE TRIAL AND VERDICTS OF
ACQUITTAL WERE ENTERED ON SEVEN COUNTS AT THE END OF TRIAL.  THE
REMAINING SEC. 1141 COUNTS ON WHICH APPELLANT WAS CONVICTED ARE LISTED
IN THE APPENDIX TO THIS OPINION. 

APPELLANT WAS ALSO CONVICTED ON 33 COUNTS CHARGING VIOLATIONS OF SEC.
330 OF THE GENERAL BUSINESS LAW FOR FAILING TO PRINT THE PUBLISHER'S
AND PRINTER'S NAMES AND ADDRESSES ON THE BOOKS.  THE APPELLATE DIVISION
REVERSED THE CONVICTIONS UNDER THESE COUNTS, AND THE COURT OF APPEALS
AFFIRMED.  THE STATE HAS NOT SOUGHT REVIEW OF THAT DECISION IN THIS
COURT. 

FN3  THE TRIAL COURT DIVIDED THE COUNTS INTO FIVE GROUPS FOR PURPOSES
OF SENTENCING.  ONE GROUP CONSISTED OF THE POSSESSION COUNTS CONCERNING
BOOKS SEIZED FROM A BASEMENT STOREROOM IN A WAREHOUSE; A SECOND GROUP
OF POSSESSION COUNTS CONCERNED BOOKS SEIZED FROM APPELLANT'S BOOKSTORE,
PUBLISHERS' OUTLET; THE THIRD CONSISTED OF THE PUBLISHING COUNTS; THE
FOURTH CONSISTED OF THE COUNTS CHARGING HIM WITH HIRING OTHERS TO
PREPARE THE BOOKS, AND THE FIFTH CONSISTED OF THE COUNTS CHARGING
VIOLATIONS OF THE GENERAL BUSINESS LAW.  SENTENCES OF ONE YEAR AND A
$3,000 FINE WERE IMPOSED ON ONE COUNT OF EACH OF THE FIRST FOUR GROUPS;
THE PRISON SENTENCES ON THE FIRST THREE WERE MADE CONSECUTIVE AND THAT
ON THE COUNT IN THE FOURTH GROUP WAS MADE CONCURRENT WITH THAT IN THE
THIRD GROUP.  A $500 FINE WAS IMPOSED ON ONE COUNT IN THE FIFTH GROUP. 
SENTENCE WAS SUSPENDED ON THE CONVICTIONS ON ALL OTHER COUNTS.  THE
SUSPENSION OF SENTENCE DOES NOT RENDER MOOT THE CLAIMS AS TO INVALIDITY
OF THE CONVICTIONS ON THOSE COUNTS. 

FN4  IT (OBSCENE MATERIAL COVERED BY SEC. 1141) FOCUSES PREDOMINANTLY
UPON WHAT IS SEXUALLY MORBID, GROSSLY PERVERSE AND BIZARRE, WITHOUT ANY
ARTISTIC OR SCIENTIFIC PURPOSE OR JUSTIFICATION.  RECOGNIZABLE 'BY THE
INSULT IT OFFERS, INVARIABLY, TO SEX, AND TO THE HUMAN SPIRIT' (D.H.
LAWRENCE, PORNOGRAPHY AND OBSCENITY (1930), P. 12), IT IS TO BE
DIFFERENTIATED FROM THE BAWDY AND THE RIBALD.  DEPICTING DIRT FOR
DIRT'S SAKE, THE OBSCENE IS THE VILE, RATHER THAN THE COARSE, THE BLOW
TO SENSE, NOT MERELY TO SENSIBILITY.  IT SMACKS, AT TIMES, OF FANTASY
AND UNREALITY, OF SEXUAL PERVERSION AND SICKNESS AND REPRESENTS,
ACCORDING TO ONE THOUGHTFUL SCHOLAR, 'A DEBAUCHERY OF THE SEXUAL
FACULTY,' (MURRAY, LITERATURE AND CENSORSHIP, 14 BOOKS ON TRIAL 393,
394; SEE, ALSO, LOCKHART AND MCCLURE, CENSORSHIP OF OBSCENITY:  THE
DEVELOPING CONSTITUTIONAL STANDARDS, 45 MINN. L. REV. 5, 65.)"  9
N.Y.2D, AT 587, 175 N.E.2D, AT 686. 

SEE ALSO PEOPLE V. FRITCH, 13 N.Y.2D 119, 123, 192 N.E.2D 713, 716
(1963): 

"IN ADDITION TO THE FOREGOING TESTS IMPOSED BY THE DECISIONS OF THE
UNITED STATES SUPREME COURT, THIS COURT INTERPRETED SECTION 1141 OF THE
PENAL LAW IN PEOPLE V. RICHMOND COUNTY NEWS  ...  AS APPLICABLE ONLY TO
MATERIAL WHICH MAY PROPERLY BE TERMED "HARD-CORE PORNOGRAPHY.'" 

FN5  THE STRINGENT SCIENTER REQUIREMENT OF SEC. 1141, AS INTERPRETED
IN PEOPLE V. FINKELSTEIN, 9 N.Y.2D 342, 345, 174 N.E.2D 470, 472
(1961), ALSO EVISCERATES MUCH OF APPELLANT'S VAGUENESS CLAIM.  SEE,
INFRA, PP. 510-512.  SEE GENERALLY, BOYCE MOTOR LINES, INC. V. UNITED
STATES, 342 U.S. 337, 342; AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382, 412-413; SCREWS V. UNITED STATES, 325 U.S. 91, 101-104
(OPINION OF MR. JUSTICE DOUGLAS); UNITED STATES V. RAGEN, 314 U.S. 513,
524; GORIN V. UNITED STATES, 312 U.S. 19, 27-28; HYGRADE PROVISION CO.
V. SHERMAN, 266 U.S. 497, 501-503; OMAECHEVARRIA V. IDAHO, 246 U.S.
343, 348. 

FN6  IT COULD NOT BE PLAUSIBLY MAINTAINED THAT ALL OF THE APPELLANT'S
BOOKS, INCLUDING THOSE DOMINATED BY DESCRIPTIONS OF RELATIVELY NORMAL
HETEROSEXUAL RELATIONSHIPS, ARE DEVOID OF THE REQUISITE PRURIENT
APPEAL. 

FN7  SEE MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478, 482 (OPINION
OF HARLAN, J.); LOCKHART AND MCCLURE, CENSORSHIP OF OBSCENITY:  THE
DEVELOPING CONSTITUTIONAL STANDARDS, 45 MINN. L. REV. 5, 72-73 (1960). 

IT IS TRUE THAT SOME OF THE MATERIAL IN ALBERTS V. CALIFORNIA,
DECIDED WITH ROTH, RESEMBLED THE DEVIANT MATERIAL INVOLVED HERE.  BUT
NO ISSUE INVOLVING THE OBSCENITY OF THE MATERIAL WAS BEFORE US IN
EITHER CASE.  354 U.S., AT 481, N. 8.  THE BASIC QUESTION FOR DECISION
THERE WAS WHETHER THE PUBLICATION AND SALE OF OBSCENITY, HOWEVER
DEFINED, COULD BE CRIMINALLY PUNISHED IN LIGHT OF FIRST AMENDMENT
GUARANTEES.  OUR DISCUSSION OF DEFINITION WAS NOT INTENDED TO DEVELOP
ALL THE NUANCES OF A DEFINITION REQUIRED BY THE CONSTITUTIONAL
GUARANTEES. 

FN8  SEE GENERALLY, 1 AMERICAN HANDBOOK OF PSYCHIATRY 593-604 (ARIETI
ED. 1959), FOR A DESCRIPTION OF THE PERTINENT TYPES OF DEVIANT SEXUAL
GROUPS. 

FN9  FOR A SIMILAR SCIENTER REQUIREMENT SEE MODEL PENAL CODE SEC.
251.4(2); COMMENTARY, MODEL PENAL CODE (TENTATIVE DRAFT NO. 6, 1957),
14, 49-51; CF. SCHWARTZ, MORALS OFFENSES AND THE MODEL PENAL CODE, 63
COL. L. REV. 669, 677 (1963). 

WE DO NOT READ JUDGE FROESSEL'S PARENTHETICAL REFERENCE TO KNOWLEDGE
OF THE CONTENTS OF THE BOOKS IN HIS OPINION IN PEOPLE V. FINKELSTEIN,
11 N.Y.2D 300, 304, 183 N.E.2D 661, 663 (1962), AS A MODIFICATION OF
THIS DEFINITION OF SCIENTER.  CF. PEOPLE V. FRITCH, 13 N.Y.2D 119, 126,
192 N.E.2D 713, 717-718 (1963). 

FN10  THE SCIENTER REQUIREMENT SET OUT IN THE TEXT WOULD SEEM TO BE,
AS A MATTER OF STATE LAW, AS APPLICABLE TO PUBLISHERS AS IT IS TO
BOOKSELLERS; BOTH TYPES OF ACTIVITIES ARE ENCOMPASSED WITHIN
SUBDIVISION 1 OF SEC. 1141.  MOREOVER, THERE IS NO NEED FOR US TO
SPECULATE AS TO WHETHER THIS SCIENTER REQUIREMENT IS ALSO PRESENT IN
SUBDIVISION 2 OF SEC. 1141 (MAKING IT A CRIME TO HIRE OTHERS TO PREPARE
OBSCENE BOOKS), FOR APPELLANT'S CONVICTIONS FOR THAT OFFENSE INVOLVED
BOOKS FOR THE PUBLICATION OF WHICH HE WAS ALSO CONVICTED. 

NO CONSTITUTIONAL CLAIM WAS ASSERTED BELOW OR IN THIS COURT AS TO THE
POSSIBLE DUPLICATIVE CHARACTER OF THE HIRING AND PUBLISHING COUNTS. 

FN11  THE FIRST APPEAL IN FINKELSTEIN DEFINING THE SCIENTER REQUIRED
BY SEC. 1141 WAS DECIDED AFTER THIS CASE WAS TRIED, BUT BEFORE THE
APPELLATE DIVISION AND COURT OF APPEALS AFFIRMED THESE CONVICTIONS.  WE
THEREFORE CONCLUDE THAT THE STATE APPELLATE COURTS WERE SATISFIED THAT
THE SEC. 1141 SCIENTER REQUIREMENT WAS CORRECTLY APPLIED AT TRIAL. 

THE SEC. 1141 COUNTS DID NOT ALLEGE APPELLANT'S KNOWLEDGE OF THE
CHARACTER OF THE BOOKS, BUT APPELLANT HAS NOT ARGUED, BELOW OR HERE,
THAT THIS OMISSION RENDERS THE INFORMATION CONSTITUTIONALLY
INADEQUATE. 

FN12  UNLIKE THE CLAIM HERE, THE CHALLENGES DECIDED IN THE APPEALS IN
MARCUS V. SEARCH WARRANT, 367 U.S. 717, AND A QUANTITY OF COPIES OF
BOOKS V. KANSAS, 378 U.S. 205, IMPLICATED THE CONSTITUTIONAL VALIDITY
OF STATUTORY SCHEMES ESTABLISHING PROCEDURES FOR SEIZING THE BOOKS. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 482. 

                          APPENDIX TO OPINION OF THE COURT. 

                           THE CONVICTIONS BEING REVIEWED. 

                                                SEC. 1141 COUNTS
NAMING THE BOOK 

EXHIBIT NO. TITLE OF BOOK                        POSSESSION
PUBLISHING  HIRING OTHERS 

1          CHANCES GO AROUND                        1         63
  111 

2          IMPACT                     2               64
112 

3        FEMALE SULTAN                            3  65
113 

4          SATIN SATELLITE              4 

5          HER HIGHNESS          5               67            115 

6          MISTRESS OF LEATHER                      6
68     116 

7          EDUCATING EDNA   7               69            117 

8          STRANGE PASSIONS                         8
70            118 

9          THE WHIPPING CHORUS GIRLS                9            71
     119 

10          ORDER OF THE DAY AND BOUND MARITALLY    10
72            120 

11          DANCE WITH THE DOMINANT WHIP            11     73
121 

12          CULT OF THE SPANKERS                12               74
    122 

13    CONFESSIONS                             13               75
  123 

14 & 46     THE HOURS OF TORTURE         14 & 40          76
124 

15 & 47     BOUND IN RUBBER                         15 & 41
77     125 

16 & 48     ARDUOUS FIGURE TRAINING AT BONDHAVEN  16 & 42          78
      126 

17 & 49     RETURN VISIT TO FETTERLAND              17 & 43
79            127 

18          FEARFUL ORDEAL IN RESTRAINTLAND         18            80
     128 

19 & 50     WOMEN IN DISTRESS                       19 & 44
81            129 

20 & 54     PLEASURE PARADE NO. 1                   20 & 48     82
   130 

21 & 57     SCREAMING FLESH                21 & 51          86
134 

22 & 58    FURY                                    22 & 52 

23     SO FIRM SO FULLY PACKED                 23               87
   135 

24          I'LL TRY ANYTHING TWICE          24 

25 & 59     MASQUE      25 & 53 

26          CATANIS       26 

27          THE VIOLATED WRESTLER   27               89
137 

28          BETRAYAL                               28 

29          SWISH BOTTOM                           29
90            138 

30          RAW DAMES                               30         91
  139 

31          THE STRAP RETURNS                    31               92
     140 

32        DANGEROUS YEARS                         32  93
141 

43          COLUMNS OF AGONY             37               95
144 

44 THE TAINTED PLEASURE                    38               96
145 

45          INTENSE DESIRE      39               97            146 

51          PLEASURE PARADE NO. 4                   45
85  133 

52          PLEASURE PARADE NO. 3                   46
84            132 

53          PLEASURE PARADE NO. 2                   47
83            131 

55          SORORITY GIRLS STRINGENT INITIATION     49         98
  147 

56          TERROR AT THE BIZARRE MUSEUM            50
99            148 

60        TEMPTATION                              57    61
PEGGY'S DISTRESS ON PLANET VENUS        58        101            150 

62          WAYS OF DISCIPLINE                    59              102
      151 

63        MRS. TYRANT'S FINISHING SCHOOL          60 103
152 

64          PERILOUS ASSIGNMENT             61              104
153 

68 BONDAGE CORRESPONDENCE                                  107
156 

69          WOMAN IMPELLED                      106            155 

70          EYE WITNESS
108  157 

71          STUD BROAD               109            158    72
QUEEN BEE                                          110            159 

MR. JUSTICE HARLAN, CONCURRING. 

ON THE ISSUE OF OBSCENITY I CONCUR IN THE JUDGMENT OF AFFIRMANCE ON
PREMISES STATED IN MY DISSENTING OPINION IN A BOOK NAMED "JOHN
CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE" V. ATTORNEY GENERAL OF
MASSACHUSETTS, ANTE, P. 455.  IN ALL OTHER RESPECTS I AGREE WITH AND
JOIN THE COURT'S OPINION. 

MR. JUSTICE BLACK, DISSENTING. 

THE COURT HERE AFFIRMS CONVICTIONS AND PRISON SENTENCES AGGREGATING
THREE YEARS PLUS FINES TOTALING $12,000 IMPOSED ON APPELLANT MISHKIN
BASED ON STATE CHARGES THAT HE HIRED OTHERS TO PREPARE AND PUBLISH
OBSCENE BOOKS AND THAT MISHKIN HIMSELF POSSESSED SUCH BOOKS.  THIS
COURT HAS HELD IN MANY CASES THAT THE FOURTEENTH AMENDMENT MAKES THE
FIRST APPLICABLE TO THE STATES.  SEE FOR ILLUSTRATION CASES COLLECTED
IN MY CONCURRING OPINION IN SPEISER V. RANDALL, 357 U.S. 513, 530. 
CONSEQUENTLY UPON THE SAME GROUNDS THAT I DISSENTED FROM A FIVE-YEAR
FEDERAL SENTENCE IMPOSED UPON GINZBURG IN NO. 42, ANTE, P. 476, FOR
SENDING "OBSCENE" PRINTED MATTER THROUGH THE UNITED STATES MAILS I
DISSENT FROM AFFIRMANCE OF THIS THREE-YEAR STATE SENTENCE IMPOSED ON
MISHKIN.  NEITHER IN THIS CASE NOR IN GINZBURG HAVE I READ THE ALLEGED
OBSCENE MATTER.  THIS IS BECAUSE I BELIEVE FOR REASONS STATED IN MY
DISSENT IN GINZBURG AND IN MANY OTHER PRIOR CASES THAT THIS COURT IS
WITHOUT CONSTITUTIONAL POWER TO CENSOR SPEECH OR PRESS REGARDLESS OF
THE PARTICULAR SUBJECT DISCUSSED.  I THINK THE FEDERAL JUDICIARY
BECAUSE IT IS APPOINTED FOR LIFE IS THE MOST APPROPRIATE TRIBUNAL THAT
COULD BE SELECTED TO INTERPRET THE CONSTITUTION AND THEREBY MARK THE
BOUNDARIES OF WHAT GOVERNMENT AGENCIES CAN AND CANNOT DO.  BUT BECAUSE
OF LIFE TENURE, AS WELL AS OTHER REASONS, THE FEDERAL JUDICIARY IS THE
LEAST APPROPRIATE BRANCH OF GOVERNMENT TO TAKE OVER CENSORSHIP
RESPONSIBILITIES BY DECIDING WHAT PICTURES AND WRITINGS PEOPLE
THROUGHOUT THE LAND CAN BE PERMITTED TO SEE AND READ.  WHEN THIS COURT
MAKES PARTICULARIZED RULES ON WHAT PEOPLE CAN SEE AND READ, IT
DETERMINES WHICH POLICIES ARE REASONABLE AND RIGHT, THEREBY PERFORMING
THE CLASSICAL FUNCTION OF LEGISLATIVE BODIES DIRECTLY RESPONSIBLE TO
THE PEOPLE.  ACCORDINGLY, I WISH ONCE MORE TO EXPRESS MY OBJECTIONS TO
SADDLING THIS COURT WITH THE IRKSOME AND INEVITABLY UNPOPULAR AND
UNWHOLESOME TASK OF FINALLY DECIDING BY A CASE-BY-CASE, SIGHT-BY-SIGHT
PERSONAL JUDGMENT OF THE MEMBERS OF THIS COURT WHAT PORNOGRAPHY
(WHATEVER THAT MEANS) IS TOO HARD CORE FOR PEOPLE TO SEE OR READ.  IF
CENSORSHIP OF VIEWS ABOUT SEX OR ANY OTHER SUBJECT IS CONSTITUTIONAL
THEN I AM RELUCTANTLY COMPELLED TO SAY THAT I BELIEVE THE TEDIOUS, TIME
CONSUMING AND UNWELCOME RESPONSIBILITY FOR FINALLY DECIDING WHAT
PARTICULAR DISCUSSIONS OR OPINIONS MUST BE SUPPRESSED IN THIS COUNTRY,
SHOULD, FOR THE GOOD OF THIS COURT AND OF THE NATION, BE VESTED IN SOME
GOVERNMENTAL INSTITUTION OR INSTITUTIONS OTHER THAN THIS COURT. 

I WOULD REVERSE THESE CONVICTIONS.  THE THREE-YEAR SENTENCE IMPOSED
ON MISHKIN AND THE FIVE-YEAR SENTENCE IMPOSED ON GINZBURG FOR
EXPRESSING VIEWS ABOUT SEX ARE MINOR IN COMPARISON WITH THOSE MORE
LENGTHY SENTENCES THAT ARE INEXORABLY BOUND TO FOLLOW IN STATE AND
FEDERAL COURTS AS PRESSURES AND PREJUDICES INCREASE AND GROW MORE
POWERFUL, WHICH OF COURSE THEY WILL.  NOR IS IT A SUFFICIENT ANSWER TO
THESE ASSUREDLY EVER-INCREASING PUNISHMENTS TO RELY ON THIS COURT'S
POWER TO STRIKE DOWN "CRUEL AND UNUSUAL PUNISHMENTS" UNDER THE EIGHTH
AMENDMENT.  DISTORTING OR STRETCHING THAT AMENDMENT BY READING IT AS
GRANTING UNREVIEWABLE POWER TO THIS COURT TO PERFORM THE LEGISLATIVE
FUNCTION OF FIXING PUNISHMENTS FOR ALL STATE AND NATIONAL OFFENSES
OFFERS A SADLY INADEQUATE SOLUTION TO THE MULTITUDINOUS PROBLEMS
GENERATED BY WHAT I CONSIDER TO BE THE UN-AMERICAN POLICY OF CENSORING
THE THOUGHTS AND OPINIONS OF PEOPLE.  THE ONLY PRACTICAL ANSWER TO
THESE CONCEDEDLY ALMOST UNANSWERABLE PROBLEMS IS, I THINK, FOR THIS
COURT TO DECLINE TO ACT AS A NATIONAL BOARD OF CENSORS OVER SPEECH AND
PRESS BUT INSTEAD TO STICK TO ITS CLEARLY AUTHORIZED CONSTITUTIONAL
DUTY TO ADJUDICATE CASES OVER THINGS AND CONDUCT.  HALFWAY CENSORSHIP
METHODS, NO MATTER HOW LAUDABLY MOTIVATED, CANNOT IN MY JUDGMENT
PROTECT OUR CHERISHED FIRST AMENDMENT FREEDOMS FROM THE DESTRUCTIVE
AGGRESSIONS OF BOTH STATE AND NATIONAL GOVERNMENT.  I WOULD REVERSE
THIS CASE AND ANNOUNCE THAT THE FIRST AND FOURTEENTH AMENDMENTS TAKEN
TOGETHER COMMAND THAT NEITHER CONGRESS NOR THE STATES SHALL PASS LAWS
WHICH IN ANY MANNER ABRIDGE FREEDOM OF SPEECH AND PRESS - WHATEVER THE
SUBJECTS DISCUSSED.  I THINK THE FOUNDERS OF OUR NATION IN ADOPTING THE
FIRST AMENDMENT MEANT PRECISELY THAT THE FEDERAL GOVERNMENT SHOULD PASS
"NO LAW" REGULATING SPEECH AND PRESS BUT SHOULD CONFINE ITS LEGISLATURE
TO THE REGULATION OF CONDUCT.   SO TOO, THAT POLICY OF THE FIRST
AMENDMENT MADE APPLICABLE TO THE STATES BY THE FOURTEENTH, LEAVES THE
STATES VAST POWER TO REGULATE CONDUCT BUT NO POWER AT ALL, IN MY
JUDGMENT, TO MAKE THE EXPRESSION OF VIEWS A CRIME. 

MR. JUSTICE STEWART, DISSENTING. 

THE APPELLANT WAS SENTENCED TO THREE YEARS IN PRISON FOR PUBLISHING
NUMEROUS BOOKS.  HOWEVER TAWDRY THOSE BOOKS MAY BE, THEY ARE NOT HARD
CORE PORNOGRAPHY, AND THEIR PUBLICATION IS, THEREFORE, PROTECTED BY THE
FIRST AND FOURTEENTH AMENDMENTS.  GINZBURG V. UNITED STATES, ANTE, P.
497 (DISSENTING OPINION).  THE JUDGMENT SHOULD BE REVERSED.* 

*SEE GINZBURG V. UNITED STATES, ANTE, P. 497, AT 499, NOTE 3
(DISSENTING OPINION).  MOREOVER, THERE WAS NO EVIDENCE AT ALL THAT ANY
OF THE BOOKS ARE THE EQUIVALENT OF HARD-CORE PORNOGRAPHY IN THE EYES OF
ANY PARTICULARIZED GROUP OF READERS.  CF. UNITED STATES V. KLAW, 350
F.2D 155 (C.A.2D CIR.). 

ALTHOUGH THE NEW YORK COURT OF APPEALS HAS PURPORTED TO INTERPRET
SEC. 1141 TO COVER ONLY WHAT IT CALLS "HARD-CORE PORNOGRAPHY," THIS
CASE MAKES ABUNDANTLY CLEAR THAT THAT PHRASE HAS BY NO MEANS BEEN
LIMITED IN NEW YORK TO THE CLEARLY IDENTIFIABLE AND DISTINCT CLASS OF
MATERIAL I HAVE DESCRIBED IN GINZBURG V. UNITED STATES, ANTE, P. 497,
AT 499, NOTE 3 (DISSENTING OPINION). 
..END :











BRENNER V. MANSON 383 U.S. 519 


NO. 58.  ARGUED NOVEMBER 17, 1965.  - DECIDED MARCH 21, 1966.  - 52
C.C.P.A. (PAT.)  739, 333 F.2D 234, REVERSED. 


IN DECEMBER 1957 RINGOLD AND ROSENKRANZ APPLIED FOR A PATENT ON AN
ALLEGEDLY NOVEL PROCESS FOR MAKING CERTAIN STEROIDS, CLAIMING PRIORITY
AS OF DECEMBER 1956.  A PATENT ISSUED THEREON IN 1959.  IN JANUARY 1960
RESPONDENT FILED AN APPLICATION TO PATENT THE SAME PROCESS, ASSERTING
THAT HE HAD DISCOVERED IT PRIOR TO DECEMBER 1956, AND REQUESTING THAT
AN "INTERFERENCE" BE DECLARED TO TEST THE ISSUE OF PRIORITY. 
RESPONDENT'S APPLICATION WAS DENIED BY A PATENT OFFICE EXAMINER, THE
BOARD OF APPEALS AFFIRMING, FOR FAILURE "TO DISCLOSE ANY UTILITY FOR"
THE COMPOUND PRODUCED BY THE PROCESS.  THE COURT OF CUSTOMS AND PATENT
APPEALS (CCPA) REVERSED, HOLDING THAT "WHERE A CLAIMED PROCESS PRODUCES
A KNOWN PRODUCT IT IS NOT NECESSARY TO SHOW UTILITY FOR THE PRODUCT" AS
LONG AS IT IS NOT DETRIMENTAL TO THE PUBLIC INTEREST.  HELD: 

1.  THIS COURT HAS JURISDICTION UNDER 28 U.S.C. SEC. 1256 TO REVIEW
UPON PETITION OF THE COMMISSIONER OF PATENTS PATENT DECISIONS OF THE
CCPA.  PP. 523-528. 

2.  THE PATENT OFFICE PROPERLY MAY REFUSE TO DECLARE AN
"INTERFERENCE" ON THE GROUND THAT THE APPLICATION THEREFOR FAILS TO
DISCLOSE A PRIMA FACIE CASE OF PATENTABILITY.  P. 528, N. 12. 

3.  THE PRACTICAL UTILITY OF THE COMPOUND PRODUCED BY A CHEMICAL
PROCESS IS AN ESSENTIAL ELEMENT IN ESTABLISHING A PRIMA FACIE CASE FOR
THE PATENTABILITY OF THE PROCESS.  PP. 528-536. 

(A)  ONE MAY PATENT ONLY THAT WHICH IS USEFUL.  PP. 528-529, 535. 

(B)  RESPONDENT HAS NOT PROVIDED ANY BASIS FOR OVERTURNING THE
DETERMINATION OF THE PATENT OFFICE THAT THE UTILITY REQUIREMENT WAS NOT
SATISFIED IN THIS CASE BY REFERENCE TO THE ALLEGED UTILITY OF AN
ADJACENT HOMOLOGUE.  PP. 531-532. 

(C)  THE REQUIREMENT THAT A CHEMICAL PROCESS BE USEFUL IS NOT
SATISFIED BY A SHOWING THAT THE COMPOUND YIELDED BELONGS TO A CLASS OF
COMPOUNDS WHICH SCIENTISTS ARE SCREENING FOR POSSIBLE USES.  PP. 532
536. 

(D)  NOR IS THE UTILITY REQUIREMENT FOR CHEMICAL PROCESSES SATISFIED
BY A SHOWING THAT THE PROCESS WORKS, I.E., YIELDS THE INTENDED
PRODUCT.  PP. 532-536. 

BRENNER, COMMISSIONER OF PATENTS V. MANSON. 

CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS TWO QUESTIONS OF IMPORTANCE TO THE ADMINISTRATION
OF THE PATENT LAWS: FIRST, WHETHER THIS COURT HAS CERTIORARI
JURISDICTION, UPON PETITION OF THE COMMISSIONER OF PATENTS, TO REVIEW
DECISIONS OF THE COURT OF CUSTOMS AND PATENT APPEALS; AND SECOND,
WHETHER THE PRACTICAL UTILITY OF THE COMPOUND PRODUCED BY A CHEMICAL
PROCESS IS AN ESSENTIAL ELEMENT IN ESTABLISHING A PRIMA FACIE CASE FOR
THE PATENTABILITY OF THE PROCESS.  THE FACTS ARE AS FOLLOWS: 

IN DECEMBER 1957, HOWARD RINGOLD AND GEORGE ROSENKRANZ APPLIED FOR A
PATENT ON AN ALLEGEDLY NOVEL PROCESS FOR MAKING CERTAIN KNOWN
STEROIDS.  (FN1)  THEY CLAIMED PRIORITY AS OF DECEMBER 17, 1956, THE
DATE ON WHICH THEY HAD FILED FOR A MEXICAN PATENT.  UNITED STATES
PATENT NO. 2,908,693 ISSUED LATE IN 1959. 

IN JANUARY 1960, RESPONDENT MANSON, A CHEMIST ENGAGED IN STEROID
RESEARCH, FILED AN APPLICATION TO PATENT PRECISELY THE SAME PROCESS
DESCRIBED BY RINGOLD AND ROSENKRANZ.  HE ASSERTED THAT IT WAS HE WHO
HAD DISCOVERED THE PROCESS, AND THAT HE HAD DONE SO BEFORE DECEMBER 17,
1956.  ACCORDINGLY, HE REQUESTED THAT AN "INTERFERENCE" BE DECLARED IN
ORDER TO TRY OUT THE ISSUE OF PRIORITY BETWEEN HIS CLAIM AND THAT OF
RINGOLD AND ROSENKRANZ.  (FN2) 

A PATENT OFFICE EXAMINER DENIED MANSON'S APPLICATION, AND THE DENIAL
WAS AFFIRMED BY THE BOARD OF APPEALS WITHIN THE PATENT OFFICE.  THE
GROUND FOR REJECTION WAS THE FAILURE "TO DISCLOSE ANY UTILITY FOR" THE
CHEMICAL COMPOUND PRODUCED BY THE PROCESS.  LETTER OF EXAMINER, DATED
MAY 24, 1960.  THIS OMISSION WAS NOT CURED, IN THE OPINION OF THE
PATENT OFFICE, BY MANSON'S REFERENCE TO AN ARTICLE IN THE NOVEMBER 1956
ISSUE OF THE JOURNAL OF ORGANIC CHEMISTRY, 21 J. ORG.  CHEM.  1333
1335, WHICH REVEALED THAT STEROIDS OF A CLASS WHICH INCLUDED THE
COMPOUND IN QUESTION WERE UNDERGOING SCREENING FOR POSSIBLE TUMOR
INHIBITING EFFECTS IN MICE, AND THAT A HOMOLOGUE (FN3) ADJACENT TO
MANSON'S STEROID HAD PROVEN EFFECTIVE IN THAT ROLE.  SAID THE BOARD OF
APPEALS, "IT IS OUR VIEW THAT THE STATUTORY REQUIREMENT OF USEFULNESS
OF A PRODUCT CANNOT BE PRESUMED MERELY BECAUSE IT HAPPENS TO BE CLOSELY
RELATED TO ANOTHER COMPOUND WHICH IS KNOWN TO BE USEFUL." 

THE COURT OF CUSTOMS AND PATENT APPEALS (HEREINAFTER CCPA) REVERSED,
CHIEF JUDGE WORLEY DISSENTING.  52 C.C.P.A. (PAT.)  739, 745, 333 F.2D
234, 237-238.  THE COURT HELD THAT MANSON WAS ENTITLED TO A DECLARATION
OF INTERFERENCE SINCE "WHERE A CLAIMED PROCESS PRODUCES A KNOWN PRODUCT
IT IS NOT NECESSARY TO SHOW UTILITY FOR THE PRODUCT," SO LONG AS THE
PRODUCT "IS NOT ALLEGED TO BE DETRIMENTAL TO THE PUBLIC INTEREST." 
CERTIORARI WAS GRANTED, 380 U.S. 971, TO RESOLVE THIS RUNNING DISPUTE
OVER WHAT CONSTITUTES "UTILITY" IN CHEMICAL PROCESS CLAIMS, (FN4) AS
WELL AS TO ANSWER THE QUESTION CONCERNING OUR CERTIORARI JURISDICTION. 

                    I. 

THAT "CASES IN THE COURT OF CUSTOMS AND PATENT APPEALS MAY BE REVIEWED
BY THE SUPREME COURT BY WRIT OF CERTIORARI."  THIS UNQUALIFIED LANGUAGE
WOULD SEEM TO FORECLOSE ANY CHALLENGE TO OUR JURISDICTION IN THE
PRESENT CASE.  BOTH THE GOVERNMENT (FN5) AND THE RESPONDENT URGE THAT
WE HAVE CERTIORARI JURISDUCTION OVER PATENT DECISIONS OF THE CCPA,
ALTHOUGH THE LATTER WOULD CONFINE OUR JURISDICTION TO THOSE PETITIONS
FILED BY DISSATISFIED APPLICANTS AND WOULD DENY THE COMMISSIONER OF
PATENTS THE RIGHT TO SEEK CERTIORARI.  (FN6)  THIS CONCERT OF OPINION
DOES NOT SETTLE THE BASIC QUESTION BECAUSE JURISDICTION CANNOT BE
CONFERRED BY CONSENT OF THE PARTIES.  THE DOUBT THAT DOES EXIST STEMS
FROM A DECISION OF THIS COURT, RENDERED IN JANUARY 1927, IN POSTUM
CEREAL CO. V. CALIFORNIA FIG NUT CO., 272 U.S. 693, WHICH HAS BEEN
WIDELY INTERPRETED AS PRECLUDING CERTIORARI JURISDICTION OVER PATENT
AND TRADEMARK DECISIONS OF THE CCPA. 

POSTUM, HOWEVER, WAS BASED UPON A STATUTORY SCHEME MATERIALLY
DIFFERENT FROM THE PRESENT ONE.  POSTUM INVOLVED A PROCEEDING IN THE
PATENT OFFICE TO CANCEL A TRADEMARK.  THE COMMISSIONER OF PATENTS
REJECTED THE APPLICATION.  AN APPEAL WAS TAKEN TO THE THEN COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA, WHICH IN 1927 EXERCISED THE
JURISDICTION LATER TRANSFERRED TO THE CCPA.  UNDER THE STATUTORY
ARRANGEMENT IN EFFECT AT THE TIME, THE JUDGMENT OF THE COURT OF APPEALS
WAS NOT DEFINITIVE BECAUSE IT WAS NOT AN ORDER TO THE PATENT OFFICE
DETERMINATIVE OF THE CONTROVERSY.  A SUBSEQUENT BILL IN EQUITY COULD BE
BROUGHT IN THE DISTRICT COURT AND IT WAS POSSIBLE THAT A CONFLICTING
ADJUDICATION COULD THUS BE OBTAINED.  ON THIS BASIS, THE COURT HELD
THAT IT COULD NOT REVIEW THE DECISION OF THE COURT OF APPEALS.  IT HELD
THAT THE CONCLUSION OF THE COURT OF APPEALS WAS AN "ADMINISTRATIVE
DECISION" RATHER THAN A "JUDICIAL JUDGMENT":  "MERELY AN INSTRUCTION TO
THE COMMISSIONER OF PATENTS BY A COURT WHICH IS MADE PART OF THE
MACHINERY OF THE PATENT OFFICE FOR ADMINISTRATIVE PURPOSES."  272 U.S.,
AT 698-699.  THEREFORE, THIS COURT CONCLUDED, THE PROCEEDING IN THE
COURT OF APPEALS - ESSENTIALLY ADMINISTRATIVE IN NATURE - WAS NEITHER
CASE NOR CONTROVERSY WITHIN THE MEANING OF ARTICLE III OF THE
CONSTITUTION.  CONGRESS MIGHT CONFER SUCH "ADMINISTRATIVE" TASKS UPON
THE COURTS OF THE DISTRICT OF COLUMBIA, WROTE CHIEF JUSTICE TAFT, BUT
IT COULD NOT EMPOWER THIS COURT TO PARTICIPATE THEREIN. 

CONGRESS SOON AMENDED THE STATUTORY SCHEME.  IN MARCH OF 1927 IT
PROVIDED THAT AN ACTION IN THE DISTRICT COURT WAS TO BE ALTERNATIVE AND
NOT CUMULATIVE TO APPELLATE REVIEW, THAT IT COULD NOT BE MAINTAINED TO
OVERCOME AN ADJUDICATION IN THE COURT OF APPEALS.  (FN7)  IN 1929
CONGRESS TRANSFERRED APPELLATE JURISDICTION OVER THE COMMISSIONER'S
DECISIONS FROM THE COURT OF APPEALS TO WHAT HAD BEEN THE COURT OF
CUSTOMS APPEALS AND WAS NOW STYLED THE COURT OF CUSTOMS AND PATENT
APPEALS.  (FN8) WHEREAS THE COURT OF APPEALS HAD BEEN EMPOWERED TO TAKE
ADDITIONAL EVIDENCE AND TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE
COMMISSIONER, THE CCPA WAS CONFINED TO THE RECORD MADE IN THE PATENT
OFFICE.  (FN9)  COMPARE FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE
BROADCASTING CO., 309 U.S. 134, 144-145.  DESPITE THESE CHANGES,
HOWEVER, POSTUM HAD ACQUIRED A LIFE OF ITS OWN.  IT CONTINUED TO STAND
IN THE WAY OF ATTEMPTS TO SECURE REVIEW HERE OF CCPA DECISIONS
RESPECTING THE COMMISSIONER OF PATENTS.  SEE, E.G., MCBRIDE V. TEEPLE,
311 U.S. 649, DENYING CERTIORARI FOR "WANT OF JURISDICTION" ON THE
AUTHORITY OF POSTUM.  (FN10) 

THIS WAS THE BACKGROUND AGAINST WHICH CONGRESS, IN ITS 1948
CODIFICATION OF STATUTES PERTAINING TO THE JUDICIARY, ENACTED SEC.
1256, BLANDLY PROVDING IN UNQUALIFIED LANGUAGE FOR REVIEW ON CERTIORARI
OF "CASES IN THE COURT OF CUSTOMS AND PATENT APPEALS."  NOTHING IN THE
LEGISLATIVE MATERIALS RELATING TO THE STATUTE, EXCEPT ITS LANGUAGE, IS
OF ASSISTANCE TO US IN THE RESOLUTION OF THE PRESENT PROBLEM:  DID THE
STATUTORY CHANGES WHICH FOLLOWED POSTUM MEAN THAT A PATENT DECISION BY
THE CCPA WAS A "JUDICIAL" DETERMINATION REVIEWABLE BY THIS COURT UNDER
ARTICLE III?  AND, IF SO, WAS SEC. 1256 INTENDED TO CREATE SUCH
JURISDICTION? 

ASSISTANCE CAME WITH THE 1958 REVISION OF THE JUDICIAL CODE. 
CONGRESS THERE DECLARED THE CCPA "A COURT ESTABLISHED UNDER ARTICLE III
...  ," THAT IS, A CONSTITUTIONAL COURT EXERCISING JUDICIAL RATHER
THAN ADMINISTRATIVE POWER.  28 U.S.C. SEC. 211 (1964 ED.).  IN 1962
THIS COURT ADDRESSED ITSELF TO THE NATURE AND STATUS OF THE CCPA. 
GLIDDEN CO. V. ZDANOK, 370 U.S. 530, RAISED THE QUESTION WHETHER A
JUDGE OF THE CCPA WAS AN ARTICLE III JUDGE, CAPABLE OF EXERCISING
FEDERAL JUDICIAL POWER.  IN ANSWERING THAT QUESTION IN THE AFFIRMATIVE,
MR. JUSTICE HARLAN'S OPINION, FOR THREE OF THE SEVEN JUSTICES
PARTICIPATING, EXPRESSLY LEFT OPEN THE QUESTION WHETHER SEC. 1256
CONFERRED CERTIORARI JURISDICTION OVER PATENT AND TRADEMARK CASES
DECIDED IN THE CCPA, 370 U.S., AT 578, N. 49.  IT SUGGESTED, HOWEVER,
THAT POSTUM MIGHT BE NOTHING MORE THAN A MUSEUM PIECE.  THE OPINION
NOTED THAT POSTUM "MUST BE TAKEN TO BE LIMITED TO THE STATUTORY SCHEME
IN EXISTENCE BEFORE" 1929.  370 U.S., AT 579.  THE CONCURRING OPINION
OF MR. JUSTICE CLARK, IN WHICH THE CHIEF JUSTICE JOINED, DID NOT
REFLECT ANY DIFFERENCE ON THIS POINT. 

THUS, THE DECISION SOUGHT TO BE REVIEWED IS THAT OF AN ARTICLE III
COURT.  IT IS "JUDICIAL" IN CHARACTER.  IT IS NOT MERELY AN INSTRUCTION
TO THE COMMISSIONER OR PART OF THE "ADMINISTRATIVE MACHINERY" OF THE
PATENT OFFICE.  IT IS FINAL AND BINDING IN THE USUAL SENSE.  (FN11)  IN
SUM, POSTUM HAS NO VITALITY IN THE PRESENT SETTING, AND THERE REMAINS
NO CONSTITUTIONAL BAR TO OUR JURISDICTION. 

HAVING ARRIVED AT THIS CONCLUSION, WE HAVE NO DIFFICULTY IN GIVING
FULL FORCE AND EFFECT TO THE GENERALITY OF THE LANGUAGE IN SEC. 1256. 
IT WOULD BE ENTIRELY ARBITRARY FOR US TO ASSUME, DESPITE THE STATUTORY
LANGUAGE, THAT CONGRESS IN 1948 INTENDED TO ENSHRINE POSTUM - DEPENDENT
AS IT WAS UPON A STATUTORY SCHEME FUNDAMENTALLY ALTERED IN 1927 AND
1929 - AS A HIDDEN EXCEPTION TO THE SWEEP OF SEC. 1256.  THE CONTRARY
IS MORE PLAUSIBLE:  THAT BY USING BROAD AND UNQUALIFIED LANGUAGE,
CONGRESS INTENDED OUR CERTIORARI JURISDICTION OVER CCPA CASES TO BE AS
BROAD AS THE CONSTITUTION PERMITS. 

THIS CONCLUSION IS REINFORCED BY REFERENCE TO THE ANOMALOUS
CONSEQUENCES WHICH WOULD RESULT WERE WE TO ADOPT A CONTRARY VIEW OF
SEC. 1256.  DETERMINATIONS OF THE PATENT OFFICE MAY BE CHALLENGED
EITHER BY APPEAL TO THE CCPA OR BY SUIT INSTITUTED IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  35 U.S.C. SEC. 145, 28
U.S.C. SEC. 1542 (1964 ED.).  WHERE THE LATTER ROUTE IS ELECTED, THE
DECISION OBTAINED MAY BE REVIEWED IN THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT, AND ULTIMATELY IN THIS COURT UPON WRIT OF
CERTIORARI.  HOOVER CO. V. COE, 325 U.S. 79.  IT WOULD BE STRANGE
INDEED IF CORRESPONDING CERTIORARI JURISDICTION DID NOT EXIST WHERE THE
ALTERNATIVE ROUTE WAS ELECTED.  WERE THAT SO, IN THE EVENT OF CONFLICT
BETWEEN THE CCPA AND THE COURTS OF THE DISTRICT OF COLUMBIA, RESOLUTION
BY THIS COURTT WOULD BE ACHIEVABLE ONLY IF THE LITIGANTS CHOSE TO
PROCEED THROUGH THE LATTER.  OBVIOUSLY, THE ORDERLY ADMINISTRATION BOTH
OF OUR CERTIORARI JURISDICTION AND OF THE PATENT LAWS REQUIRES THAT
ULTIMATE REVIEW BE AVAILABLE IN THIS COURT, REGARDLESS OF THE ROUTE
CHOSEN BY THE LITIGANTS. 

WE THEREFORE CONCLUDE THAT SEC. 1256 AUTHORIZES THE GRANT OF
CERTIORARI IN THE PRESENT CASE.  WE NOW TURN TO THE MERITS.  (FN12)

          II. 

OUR STARTING POINT IS THE PROPOSITION, NEITHER DISPUTED NOR
DISPUTABLE, THAT ONE MAY PATENT ONLY THAT WHICH IS "USEFUL."  IN GRAHAM
V. JOHN DEERE CO., ANTE, P. 1, AT 5-10, WE HAVE REVIEWED THE HISTORY OF
THE REQUISITES OF PATENTABILITY, AND IT NEED NOT BE REPEATED HERE. 
SUFFICE IT TO SAY THAT THE CONCEPT OF UTILITY HAS MAINTAINED A CENTRAL
PLACE IN ALL OF OUR PATENT LEGISLATION, BEGINNING WITH THE FIRST PATENT
LAW IN 1790 (FN13) AND CULMINATING IN THE PRESENT LAW'S PROVISION
THAT: 

"WHOEVER INVENTS OR DISCOVERS ANY NEW AND USEFUL PROCESS, MACHINES,
MANUFACTURE, OR COMPOSITION OF MATTER, OR ANY NEW AND USEFUL
IMPROVEMENT THEREOF, MAY OBTAIN A PATENT THEREFOR, SUBJECT TO THE
CONDITIONS AND REQUIREMENTS OF THIS TITLE."  (FN14) 

AS IS SO OFTEN THE CASE, HOWEVER, A SIMPLE, EVERYDAY WORD CAN BE
PREGNANT WITH AMBIGUITY WHEN APPLIED TO THE FACTS OF LIFE.  THAT THIS
IS SO IS DEMONSTRATED BY THE PRESENT CONFLICT BETWEEN THE PATENT OFFICE
AND THE CCPA OVER HOW THE TEST IS TO BE APPLIED TO A CHEMICAL PROCESS
WHICH YIELDS AN ALREADY KNOWN PRODUCT WHOSE UTILITY - OTHER THAN AS A
POSSIBLE OBJECT OF SCIENTIFIC INQUIRY - HAS NOT YET BEEN EVIDENCED.  IT
WAS NOT LONG AGO THAT AGENCY AND COURT SEEMED OF ONE MIND ON THE
QUESTION.  IN APPLICATION OF BREMNER, 37 C.C.P.A.  (PAT.)  1032, 1034,
182 F.2D 216, 217, THE COURT AFFIRMED REJECTION BY THE PATENT OFFICE OF
BOTH PROCESS AND PRODUCT CLAIMS.  IT NOTED THAT "NO USE FOR THE
PRODUCTS CLAIMED TO BE DEVELOPED BY THE PROCESSES HAD BEEN SHOWN IN THE
SPECIFICATION."  IT HELD THAT "IT WAS NEVER INTENDED THAT A PATENT BE
GRANTED UPON A PRODUCT, OR A PROCESS PRODUCING A PRODUCT, UNLESS SUCH
PRODUCT BE USEFUL."  NOR WAS THIS NEW DOCTRINE IN THE COURT.  SEE
THOMAS V. MICHAEL, 35 C.C.P.A. (PAT.)  1036, 1038-1039, 166 F.2D 944,
946-947. 

THE PATENT OFFICE HAS REMAINED STEADFAST IN THIS VIEW.  THE CCPA,
HOWEVER, HAS MOVED SHARPLY AWAY FROM BREMNER.  THE TREND BEGAN IN
APPLICATION OF NELSON, 47 C.C.P.A. (PAT.)  1031, 280 F.2D 172.  THERE,
THE COURT REVERSED THE PATENT OFFICE'S REJECTION OF A CLAIM ON A
PROCESS YIELDING CHEMICAL INTERMEDIATES "USEFUL TO CHEMISTS DOING
RESEARCH ON STEROIDS," DESPITE THE ABSENCE OF EVIDENCE THAT ANY OF THE
STEROIDS THUS ULTIMATELY PRODUCED WERE THEMSELVES "USEFUL."  THE TREND
HAS ACCELERATED, (FN15) CULMINATING IN THE PRESENT CASE WHERE THE COURT
HELD IT SUFFICIENT THAT A PROCESS PRODUCES THE RESULT INTENDED AND IS
NOT "DETRIMENTAL TO THE PUBLIC INTEREST."  52 C.C.P.A. (PAT.), AT 745,
333 F.2D, AT 238.    IT IS NOT REMARKABLE THAT DIFFERENCES ARISE AS TO
HOW THE TEST OF USEFULNESS IS TO BE APPLIED TO CHEMICAL PROCESSES. 
EVEN IF WE KNEW PRECISELY WHAT CONGRESS MEANT IN 1790 WHEN IT DEVISED
THE "NEW AND USEFUL" PHRASEOLOGY AND IN SUBSEQUENT RE-ENACTMENTS OF THE
TEST, WE SHOULD HAVE DIFFICULTY IN APPLYING IT IN THE CONTEXT OF
CONTEMPORARY CHEMISTRY WHERE RESEARCH IS AS COMPREHENSIVE AS MAN'S
GRASP AND WHERE LITTLE OR NOTHING IS WHOLLY BEYOND THE PALE OF
"UTILITY" - IF THAT WORD IS GIVEN ITS BROADEST REACH.    RESPONDENT
DOES NOT - AT LEAST IN THE FIRST INSTANCE - REST UPON THE EXTREME
PROPOSITION, ADVANCED BY THE COURT BELOW, THAT A NOVEL CHEMICAL PROCESS
IS PATENTABLE SO LONG AS IT YIELDS THE INTENDED PRODUCT (FN16) AND SO
LONG AS THE PRODUCT IS NOT ITSELF "DETRIMENTAL."  NOR DOES HE COMMIT
THE OUTCOME OF HIS CLAIM TO THE SLIGHTLY MORE CONVENTIONAL PROPOSITION
THAT ANY PROCESS IS "USEFUL" WITHIN THE MEANING OF SEC. 101 IF IT
PRODUCES A COMPOUND WHOSE POTENTIAL USEFULNESS IS UNDER INVESTIGATION
BY SERIOUS SCIENTIFIC RESEARCHERS, ALTHOUGH HE URGES THIS POSITION,
TOO, AS AN ALTERNATIVE BASIS FOR AFFIRMING THE DECISION OF THE CCPA. 
RATHER, HE BEGINS WITH THE MUCH MORE ORTHODOX ARGUMENT THAT HIS PROCESS
HAS A SPECIFIC UTILITY WHICH WOULD ENTITLE HIM TO A DECLARATION OF
INTERFERENCE EVEN UNDER THE PATENT OFFICE'S READING OF SEC. 101.  THE
CLAIM IS THAT THE SUPPORTING AFFIDAVITS FILED PURSUANT TO RULE 204(B),
BY REFERENCE TO RINGOLD'S 1956 ARTICLE, REVEAL THAT AN ADJACENT
HOMOLOGUE OF THE STEROID YIELDED BY HIS PROCESS HAS BEEN DEMONSTRATED
TO HAVE TUMOR-INHIBITING EFFECTS IN MICE, AND THAT THIS DISCLOSES THE
REQUISITE UTILITY.  WE DO NOT ACCEPT ANY OF THESE THEORIES AS AN
ADEQUATE BASIS FOR OVERRIDING THE DETERMINATION OF THE PATENT OFFICE
THAT THE "UTILITY" REQUIREMENT HAS NOT BEEN MET. 

EVEN ON THE ASSUMPTION THAT THE PROCESS WOULD BE PATENTABLE WERE
RESPONDENT TO SHOW THAT THE STEROID PRODUCED HAD A TUMOR-INHIBITING
EFFECT IN MICE, (FN17) WE WOULD NOT OVERRULE THE PATENT OFFICE FINDING
THAT RESPONDENT HAS NOT MADE SUCH A SHOWING.  THE PATENT OFFICE HELD
THAT, DESPITE THE REFERENCE TO THE ADJACENT HOMOLOGUE, RESPONDENT'S
PAPERS DID NOT DISCLOSE A SUFFICIENT LIKELIHOOD THAT THE STEROID
YIELDED BY HIS PROCESS WOULD HAVE SIMILAR TUMOR-INHIBITING
CHARACTERISTICS.  INDEED, RESPONDENT HIMSELF RECOGNIZED THAT THE
PRESUMPTION THAT ADJACENT HOMOLOGUES HAVE THE SAME UTILITY (FN18) HAS
BEEN CHALLENGED IN THE STEROID FIELD BECAUSE OF "A GREATER KNOWN
UNPREDICTABILITY OF COMPOUNDS IN THAT FIELD."  (FN19)  IN THESE
CIRCUMSTANCES AND IN THIS TECHNICAL AREA, WE WOULD NOT OVERTURN THE
FINDING OF THE PRIMARY EXAMINER, AFFIRMED BY THE BOARD OF APPEALS AND
NOT CHALLENGED BY THE CCPA. 

THE SECOND AND THIRD POINTS OF RESPONDENT'S ARGUMENT PRESENT ISSUES
OF MUCH IMPORTANCE.  IS A CHEMICAL PROCESS "USEFUL" WITHIN THE MEANING
OF SEC. 101 EITHER (1) BECAUSE IT WORKS - I.E., PRODUCES THE INTENDED
PRODUCT?  OR (2) BECAUSE THE COMPOUND YIELDED BELONGS TO A CLASS OF
COMPOUNDS NOW THE SUBJECT OF SERIOUS SCIENTIFIC INVESTIGATION?  THESE
CONTENTIONS PRESENT THE BASIC PROBLEM FOR OUR ADJUDICATION.  SINCE WE
FIND NO SPECIFIC ASSISTANCE IN THE LEGISLATIVE MATERIALS UNDERLYING
SEC. 101, WE ARE REMITTED TO AN ANALYSIS OF THE PROBLEM IN LIGHT OF THE
GENERAL INTENT OF CONGRESS, THE PURPOSES OF THE PATENT SYSTEM, AND THE
IMPLICATIONS OF A DECISION ONE WAY OR THE OTHER. 

IN SUPPORT OF HIS PLEA THAT WE ATTENUATE THE REQUIREMENT OF
"UTILITY," RESPONDENT RELIES UPON JUSTICE STORY'S WELL-KNOWN STATEMENT
THAT A "USEFUL" INVENTION IS ONE "WHICH MAY BE APPLIED TO A BENEFICIAL
USE IN SOCIETY, IN CONTRADISTINCTION TO AN INVENTION INJURIOUS TO THE
MORALS, HEALTH, OR GOOD ORDER OF SOCIETY, OR FRIVOLOUS AND
INSIGNIFICANT" (FN20) - AND UPON THE ASSERTION THAT TO DO SO WOULD
ENCOURAGE INVENTORS OF NEW PROCESSES TO PUBLICIZE THE EVENT FOR THE
BENEFIT OF THE ENTIRE SCIENTIFIC COMMUNITY, THUS WIDENING THE SEARCH
FOR USES AND INCREASING THE FUND OF SCIENTIFIC KNOWLEDGE.  JUSTICE
STORY'S LANGUAGE SHEDS LITTLE LIGHT ON OUR SUBJECT.  NARROWLY READ, IT
DOES NO MORE THAN COMPEL US TO DECIDE WHETHER THE INVENTION IN QUESTION
IS "FRIVOLOUS AND INSIGNIFICANT" - A QUERY NO EASIER OF APPLICATION
THAN THE ONE BUILT INTO THE STATUTE.  READ MORE BROADLY, SO AS TO ALLOW
THE PATENTING OF ANY INVENTION NOT POSITIVELY HARMFUL TO SOCIETY, IT
PLACES SUCH A SPECIAL MEANING ON THE WORD "USEFUL" THAT WE CANNOT
ACCEPT IT IN THE ABSENCE OF EVIDENCE THAT CONGRESS SO INTENDED.  THERE
ARE, AFTER ALL, MANY THINGS IN THIS WORLD WHICH MAY NOT BE CONSIDERED
"USEFUL" BUT WHICH, NEVERTHELESS, ARE TOTALLY WITHOUT A CAPACITY FOR
HARM. 

IT IS TRUE, OF COURSE, THAT ONE OF THE PURPOSES OF THE PATENT SYSTEM
IS TO ENCOURAGE DISSEMINATION OF INFORMATION CONCERNING DISCOVERIES AND
INVENTIONS.  (FN21)  AND IT MAY BE THAT INABILITY TO PATENT A PROCESS
TO SOME EXTENT DISCOURAGES DISCLOSURE AND LEADS TO GREATER SECRECY THAN
WOULD OTHERWISE BE THE CASE.  THE INVENTOR OF THE PROCESS, OR THE
CORPORATE ORGANIZATION BY WHICH HE IS EMPLOYED, HAS SOME INCENTIVE TO
KEEP THE INVENTION SECRET WHILE USES FOR THE PRODUCT ARE SEARCHED OUT. 
HOWEVER, IN LIGHT OF THE HIGHLY DEVELOPED ART OF DRAFTING PATENT CLAIMS
SO THAT THEY DISCLOSE AS LITTLE USEFUL INFORMATION AS POSSIBLE - WHILE
BROADENING THE SCOPE OF THE CLAIM AS WIDELY AS POSSIBLE - THE ARGUMENT
BASED UPON THE VIRTUE OF DISCLOSURE MUST BE WARILY EVALUATED. 
MOREOVER, THE PRESSURE FOR SECRECY IS EASILY EXAGGERATED, FOR IF THE
INVENTOR OF A PROCESS CANNOT HIMSELF ASCERTAIN A "USE" FOR THAT WHICH
HIS PROCESS YIELDS, HE HAS EVERY INCENTIVE TO MAKE HIS INVENTION KNOWN
TO THOSE ABLE TO DO SO.  FINALLY, HOW LIKELY IS DISCLOSURE OF A
PATENTED PROCESS TO SPUR RESEARCH BY OTHERS INTO THE USES TO WHICH THE
PRODUCT MAY BE PUT?  TO THE EXTENT THAT THE PATENTEE HAS POWER TO
ENFORCE HIS PATENT, THERE IS LITTLE INCENTIVE FOR OTHERS TO UNDERTAKE A
SEARCH FOR USES. 

WHATEVER WEIGHT IS ATTACHED TO THE VALUE OF ENCOURAGING DISCLOSURE
AND OF INHIBITING SECRECY, WE BELIEVE A MORE COMPELLING CONSIDERATION
IS THAT A PROCESS PATENT IN THE CHEMICAL FIELD, WHICH HAS NOT BEEN
DEVELOPED AND POINTED TO THE DEGREE OF SPECIFIC UTILITY, CREATES A
MONOPOLY OF KNOWLEDGE WHICH SHOULD BE GRANTED ONLY IF CLEARLY COMMANDED
BY THE STATUTE.  UNTIL THE PROCESS CLAIM HAS BEEN REDUCED TO PRODUCTION
OF A PRODUCT SHOWN TO BE USEFUL, THE METES AND BOUNDS OF THAT MONOPOLY
ARE NOT CAPABLE OF PRECISE DELINEATION.  IT MAY ENGROSS A VAST,
UNKNOWN, AND PERHAPS UNKNOWABLE AREA.  SUCH A PATENT MAY CONFER POWER
TO BLOCK OFF WHOLE AREAS OF SCIENTIFIC DEVELOPMENT, (FN22) WITHOUT
COMPENSATING BENEFIT TO THE PUBLIC.  THE BASIC QUID PRO QUO
CONTEMPLATED BY THE CONSTITUTION AND THE CONGRESS FOR GRANTING A PATENT
MONOPOLY IS THE BENEFIT DERIVED BY THE PUBLIC FROM AN INVENTION WITH
SUBSTANTIAL UTILITY.  UNLESS AND UNTIL A PROCESS IS REFINED AND
DEVELOPED TO THIS POINT - WHERE SPECIFIC BENEFIT EXISTS IN CURRENTLY
AVAILABLE FORM - THERE IS INSUFFICIENT JUSTIFICATION FOR PERMITTING AN
APPLICANT TO ENGROSS WHAT MAY PROVE TO BE A BROAD FIELD. 

THESE ARGUMENTS FOR AND AGAINST THE PATENTABILITY OF A PROCESS WHICH
EITHER HAS NO KNOWN USE OR IS USEFUL ONLY IN THE SENSE THAT IT MAY BE
AN OBJECT OF SCIENTIFIC RESEARCH WOULD APPLY EQUALLY TO THE PATENTING
OF THE PRODUCT PRODUCED BY THE PROCESS.  RESPONDENT APPEARS TO CONCEDE
THAT WITH RESPECT TO A PRODUCT, AS OPPOSED TO A PROCESS, CONGRESS HAS
STRUCK THE BALANCE ON THE SIDE OF NON-PATENTABILITY UNLESS "UTILITY" IS
SHOWN.  INDEED, THE DECISIONS OF THE CCPA ARE IN ACCORD WITH THE VIEW
THAT A PRODUCT MAY NOT BE PATENTED ABSENT A SHOWING OF UTILITY GREATER
THAN ANY ADDUCED IN THE PRESENT CASE.  (FN23)  WE FIND ABSOLUTELY NO
WARRANT FOR THE PROPOSITION THAT ALTHOUGH CONGRESS INTENDED THAT NO
PATENT BE GRANTED ON A CHEMICAL COMPOUND WHOSE SOLE "UTILITY" CONSISTS
OF ITS POTENTIAL ROLE AS AN OBJECT OF USE-TESTING, A DIFFERENT SET OF
RULES WAS MEANT TO APPLY TO THE PROCESS WHICH YIELDED THE UNPATENTABLE
PRODUCT.  (FN24)  THAT PROPOSITION SEEMS TO US LITTLE MORE THAN AN
ATTEMPT TO EVADE THE IMPACT OF THE RULES WHICH CONCEDEDLY GOVERN
PATENTABILITY OF THE PRODUCT ITSELF. 

THIS IS NOT TO SAY THAT WE MEAN TO DISPARAGE THE IMPORTANCE OF
CONTRIBUTIONS TO THE FUND OF SCIENTIFIC INFORMATION SHORT OF THE
INVENTION OF SOMETHING "USEFUL," OR THAT WE ARE BLIND TO THE PROSPECT
THAT WHAT NOW SEEMS WITHOUT "USE" MAY TOMORROW COMMAND THE GRATEFUL
ATTENTION OF THE PUBLIC.  BUT A PATENT IS NOT A HUNTING LICENSE.  IT IS
NOT A REWARD FOR THE SEARCH, BUT COMPENSATION FOR ITS SUCCESSFUL
CONCLUSION.  "A PATENT SYSTEM MUST BE RELATED TO THE WORLD OF COMMERCE
RATHER THAN TO THE REALM OF PHILOSOPHY  ...  ."  (FN25) 

THE JUDGMENT OF THE CCPA IS REVERSED. 

FN1  THE APPLICANTS DESCRIBED THE PRODUCTS OF THEIR PROCESS AS "2
METHYL DIHYDROTESTOSTERONE DERIVATIVES AND ESTERS THEREOF AS WELL AS 2
METHYL DIHYDROTESTOSTERONE DERIVATIVES HAVING A C-17 LOWER ALKYL
GROUP.  THE PRODUCTS OF THE PROCESS OF THE PRESENT INVENTION HAVE A
USEFUL HIGH ANABOLIC-ANDROGENIC RATIO AND ARE ESPECIALLY VALUABLE FOR
TREATMENT OF THOSE AILMENTS WHERE ANABOLIC OR ANTIESTROGENIC EFFECT
TOGETHER WITH A LESSER ANDROGENIC EFFECT IS DESIRED." 

FN2  35 U.S.C. SEC. 135 (1964 ED.)  PROVIDES:  "WHENEVER AN
APPLICATION IS MADE FOR A PATENT WHICH, IN THE OPINION OF THE
COMMISSIONER, WOULD INTERFERE WITH ANY PENDING APPLICATION, OR WITH ANY
UNEXPIRED PATENT, HE SHALL GIVE NOTICE THEREOF  ...  .  THE QUESTION OF
PRIORITY OF INVENTION SHALL BE DETERMINED BY A BOARD OF PATENT
INTERFERENCES  ...  WHOSE DECISION, IF ADVERSE TO THE CLAIM OF AN
APPLICANT, SHALL CONSTITUTE THE FINAL REFUSAL BY THE PATENT OFFICE OF
THE CLAIMS INVOLVED, AND THE COMMISSIONER MAY ISSUE A PATENT TO THE
APPLICANT WHO IS ADJUDGED THE PRIOR INVENTOR  ...  ." 

PATENT OFFICE RULE 204(B), 37 CFR SEC. 1.204(B), PROVIDES:  "WHEN THE
FILING DATE OR EFFECTIVE FILING DATE OF AN APPLICANT IS SUBSEQUENT TO
THE FILING DATE OF A PATENTEE, THE APPLICANT, BEFORE AN INTERFERENCE
WILL BE DECLARED, SHALL FILE AN AFFIDAVIT THAT HE MADE THE INVENTION IN
CONTROVERSY IN THIS COUNTRY, BEFORE THE FILING DATE OF THE PATENTEE
...  AND, WHEN REQUIRED, THE APPLICANT SHALL FILE AN AFFIDAVIT  ...
SETTING FORTH FACTS WHICH WOULD PRIMA FACIE ENTITLE HIM TO AN AWARD OF
PRIORITY RELATIVE TO THE FILING DATE OF THE PATENTEE." 

JUDGE THURMAN ARNOLD HAS PROVIDED AN IRREVERENT DESCRIPTION OF THE
WAY PATENT CLAIMS, INCLUDING "INTERFERENCES," ARE PRESENTED TO THE
PATENT OFFICE.  SEE MONSANTO CHEMICAL CO. V. COE, 79 U.S. APP. D.C.
155, 145 F.2D 18. 

FN3  "A HOMOLOGOUS SERIES IS A FAMILY OF CHEMICALLY RELATED
COMPOUNDS, THE COMPOSITION OF WHICH VARIES FROM MEMBER TO MEMBER BY CH2
(ONE ATOM OF CARBON AND TWO ATOMS OF HYDROGEN)  ...  .  CHEMISTS
KNOWING THE PROPERTIES OF ONE MEMBER OF A SERIES WOULD IN GENERAL KNOW
WHAT TO EXPECT IN ADJACENT MEMBERS."  APPLICATION OF HENZE, 37 C.C.P.A.
(PAT.)  1009, 1014, 181 F.2D 196, 200-201.  SEE ALSO IN RE HASS, 31
C.C.P.A. (PAT.)  895, 901, 141 F.2D 122, 125; APPLICATION OF NORRIS, 37
C.C.P.A. (PAT.)  876, 179 F.2D 970; APPLICATION OF JONES, 32 C.C.P.A.
(PAT.)  1020, 149 F.2D 501.  WITH RESPECT TO THE INFERIOR
PREDICTABILITY OF STEROID HOMOLOGUES, SEE, INFRA, P. 532. 

FN4  IN ADDITION TO THE CLEAR CONFLICT BETWEEN THE PATENT OFFICE AND
THE CCPA, THERE ARGUABLY EXISTS ONE BETWEEN THE CCPA AND THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA.  SEE PETROCARBON LIMITED V.
WATSON, 101 U.S. APP. D.C. 214, 247 F.2D 800, CERT. DENIED, 355 U.S.
955.  BUT SEE APPLICATION OF SZWARC, 50 C.C.P.A. (PAT.)  1571, 1576
1583, 319 F.2D 277, 281-286. 

FN5  THE PRESENT CASE IS THE FIRST IN WHICH THE GOVERNMENT HAS TAKEN
THE POSITION THAT SEC. 1256 CONFERS JURISDICTION UPON THIS COURT TO
REVIEW PATENT DECISIONS IN THE CCPA.  PRIOR TO GLIDDEN CO. V. ZDANOK,
370 U.S. 530, THE GOVERNMENT WAS OF THE VIEW THAT THE COURT LACKED
JURISDICTION.  SEE, E.G., THE BRIEF IN OPPOSITION IN DALTON V. MARZALL,
NO. 87, O.T. 1951, CERT. DENIED, 342 U.S. 818.  AFTER THE DECISION IN
GLIDDEN, DISCUSSED INFRA, AT 526, THE GOVERNMENT CONCEDED THE ISSUE WAS
A CLOSE ONE.  SEE, E.G., BRIEF IN OPPOSITION IN IN RE GRUSCHWITZ, NO.
579, O.T. 1963, CERT. DENIED, 375 U.S. 967. 

FN6  WE FIND NO WARRANT FOR THIS CURIOUS LIMITATION EITHER IN THE
STATUTORY LANGUAGE OR IN THE LEGISLATIVE HISTORY OF SEC. 1256.  NOR DO
WE FIND PERSUASIVE THE CIRCUMSTANCE THAT THE COMMISSIONER MAY NOT
APPEAL ADVERSE DECISIONS OF THE BOARD OF APPEALS.  35 U.S.C.  SECS.
141, 142, AND 145 (1964 ED.).  AS A MEMBER OF THE BOARD AND THE
OFFICIAL RESPONSIBLE FOR SELECTING THE MEMBERSHIP OF ITS PANELS, 35
U.S.C. SEC. 7 (1964 ED.), THE COMMISSIONER MAY BE APPROPRIATELY
CONSIDERED AS BOUND BY BOARD DETERMINATIONS.  NO SUCH CONSIDERATION
OPERATES TO PREVENT HIS SEEKING REVIEW OF ADVERSE DECISIONS RENDERED BY
THE CCPA. 

FN7  ACT OF MARCH 2, 1927, C. 273, SEC. 11, 44 STAT. 1335, 1336.  SEE
GLIDDEN CO. V. ZDANOK, SUPRA, AT 572-579; KURLAND & WOLFSON, SUPREME
COURT REVIEW OF THE COURT OF CUSTOMS AND PATENT APPEALS, 18 GEO. WASH.
L. REV. 192 (1950).  THIS REMAINS THE LAW.  35 U.S.C.  SECS. 141, 145. 

FN8  ACT OF MARCH 2, 1929, C. 488, 45 STAT. 1475. 

FN9  SEE KURLAND & WOLFSON, OP. CIT. SUPRA, N. 7, AT 196. 

FN10  APART FROM POSTUM, UNTIL ENACTMENT OF SEC. 1256 IN 1948 THERE
EXISTED NO STATUTORY BASIS FOR JURISDICTION IN THESE CASES.  SEE
ROBERTON & KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE UNITED
STATES, SEC. 251 (WOLFSON & KURLAND ED. 1951). 

FN11  THIS IS NOT TO SAY THAT A CCPA DETERMINATION THAT AN APPLICANT
IS ENTITLED TO A PATENT PRECLUDES A CONTRARY RESULT IN A SUBSEQUENT
INFRINGEMENT SUIT, ANY MORE THAN ISSUANCE OF A PATENT BY THE PATENT
OFFICE OR THE DECISION IN AN EARLIER INFRINGEMENT ACTION AGAINST A
DIFFERENT "INFRINGER" HAS THAT EFFECT.  SEE, E.G., GRAHAM V. JOHN DEERE
CO., ANTE, P. 1, AT 4.  WE REVIEW DECISIONS OF THE DISTRICT COURT UNDER
35 U.S.C. SEC. 145 ALTHOUGH THESE ARE SUBJECT TO THE SAME MEASURE OF
READJUDICATION IN INFRINGEMENT SUITS.  SEE HOOVER CO. V. COE, 325 U.S.
79.    FN12  RESPONDENT AND THE AMICUS CURIAE TAKE A DIFFERENT VIEW
THAN DOES THE GOVERNMENT OF PRECISELY WHAT THE ISSUE ON THE MERITS IS.
THEY ARGUE THAT THE ISSUE OF "PATENTABILITY" IS NOT PROPERLY BEFORE US,
THAT THE ISSUE ACTUALLY PRESENTED IS WHETHER THE PRIMARY EXAMINER IN
THE PATENT OFFICE HAS AUTHORITY UNDER RULE 204(B) HIMSELF TO EVALUATE
THE SUFFICIENCY OF AFFIDAVITS SUBMITTED UNDER THAT RULE. 

BOTH THE BOARD OF APPEALS AND THE CCPA REJECTED THIS VIEW AND FOCUSED
INSTEAD ON THE QUESTION OF WHAT AVERMENTS SATISFY THE STATUTORY
REQUIREMENT THAT A CLAIMED CHEMICAL PROCESS BE "USEFUL."  WE AGREE. 
FIRST, THE ISSUE OF "PATENTABILITY" CANNOT BE FORECLOSED BY THE
CIRCUMSTANCE THAT THE PATENT OFFICE - WHICH, ACCORDING TO COUNSEL FOR
RESPONDENT, PROCESSES SOME 1,800 CLAIMS AND ISSUES 700 PATENTS EACH
WEEK - HAS ALREADY ISSUED A PATENT TO RINGOLD AND ROSENKRANZ WHO
ASSERTED IN THEIR CLAIM THAT THEIR PROCESS YIELDED USEFUL PRODUCTS. 
SEE NOTE 1, SUPRA.  SECOND, THERE IS NO BASIS FOR THE PROPOSITION THAT
EVEN WHERE AN APPLICANT FOR AN INTERFERENCE PRESENTS A CLAIM WHICH ON
ITS FACE IS UNPATENTABLE, A COMPLICATED AND FREQUENTLY LENGTHY FACTUAL
INQUIRY INTO PRIORITY OF INVENTION MUST INEXORABLY TAKE PLACE.  ON THE
CONTRARY, RULE 201(A), 37 CFR SEC. 1.201(A), DEFINES AN INTERFERENCE
PROCEEDING AS ONE INVOLVING "TWO OR MORE PARTIES CLAIMING SUBSTANTIALLY
THE SAME PATENTABLE INVENTION AND MAY BE INSTITUTED AS SOON AS IT IS
DETERMINED THAT COMMON PATENTABLE SUBJECT MATTER IS CLAIMED  ...  ." 
SEE APPLICATION OF ROGOFF, 46 C.C.P.A. (PAT.)  733, 739, 261 F.2D 601,
606:  "THE QUESTION AS TO PATENTABILITY OF CLAIMS TO AN APPLICANT MUST
BE DETERMINED BEFORE ANY QUESTION OF INTERFERENCE ARISES AND CLAIMS
OTHERWISE UNPATENTABLE TO AN APPLICANT CANNOT BE ALLOWED MERELY IN
ORDER TO SET UP AN INTERFERENCE."  SEE ALSO WIRKLER V. PERKINS, 44
C.C.P.A. (PAT.)  1005, 1008, 245 F.2D 502, 504.  CF. GLASS V. DE ROO,
44 C.C.P.A. (PAT.)  723, 239 F.2D 402. 

THE CURRENT VERSION OF RULE 203(A), 37 CFR SEC. 1.203(A), MAKES IT
EXPLICIT THAT THE EXAMINER, "BEFORE THE DECLARATION OF INTERFERENCE,"
MUST DETERMINE THE PATENTABILITY OF THE CLAIM AS TO EACH PARTY.  SEE
ALSO RULE 237, 37 CFR SEC. 1.237. 

FN13  SEE ACT OF APRIL 10, 1790, C. 7, 1 STAT. 109; ACT OF FEB. 21,
1793, C. 11, 1 STAT.  318; ACT OF JULY 4, 1836, C. 357, 5 STAT. 117;
ACT OF JULY 8, 1870, C. 230, 16 STAT. 198; REV. STAT. SEC. 4886
(1874). 

FN14  35 U.S.C. SEC. 101 (1964 ED.). 

FN15  THUS, IN APPLICATION OF WILKE, 50 C.C.P.A. (PAT.)  964, 314
F.2D 558, THE COURT REVERSED A PATENT OFFICE DENIAL OF A PROCESS CLAIM,
HOLDING THAT 35 U.S.C. SEC. 112 (1964 ED.)  WAS SATISFIED EVEN THOUGH
THE SPECIFICATION RECITED ONLY THE MANNER IN WHICH THE PROCESS WAS TO
BE USED AND NOT ANY USE FOR THE PRODUCTS THEREBY YIELDED.  SEE ALSO
APPLICATION OF ADAMS, 50 C.C.P.A. (PAT.)  1185, 316 F.2D 476. 

IN APPLICATION OF SZWARC, 50 C.C.P.A. (PAT.)  1571, 319 F.2D 277, THE
COURT ACKNOWLEDGED THAT ITS VIEW OF THE LAW RESPECTING UTILITY OF
CHEMICAL PROCESSES HAD CHANGED SINCE BREMNER.  SEE GENERALLY, NOTE, THE
UTILITY REQUIREMENT IN THE PATENT LAW, 53 GEO. L.J. 154, 175-181
(1964). 

FN16  RESPONDENT COUCHES THE ISSUE IN TERMS OF WHETHER THE PROCESS
YIELDS A "KNOWN" PRODUCT.  WE FAIL TO SEE THE RELEVANCE OF THE FACT
THAT THE PRODUCT IS "KNOWN," SAVE TO THE EXTENT THAT REFERENCES TO A
COMPOUND IN SCIENTIFIC LITERATURE SUGGEST THAT IT MIGHT BE A SUBJECT OF
INTEREST AND POSSIBLE INVESTIGATION. 

FN17  IN LIGHT OF OUR DISPOSITION OF THE CASE, WE EXPRESS NO VIEW AS
TO THE PATENTABILITY OF A PROCESS WHOSE SOLE DEMONSTRATED UTILITY IS TO
YIELD A PRODUCT SHOWN TO INHIBIT THE GROWTH OF TUMORS IN LABORATORY
ANIMALS.  SEE APPLICATION OF HITCHINGS, 52 C.C.P.A. (PAT.)  1141, 342
F.2D 80; APPLICATION OF BERGEL, 48 C.C.P.A. (PAT.)  1102, 292 F.2D 955;
CF. APPLICATION OF DODSON, 48 C.C.P.A. (PAT.)  1125, 292 F.2D 943;
APPLICATION OF KRIMMEL, 48 C.C.P.A. (PAT.)  1116, 292 F.2D 948.  FOR A
PATENT OFFICE VIEW, SEE MARCUS, THE PATENT OFFICE AND PHARMACEUTICAL
INVENTION, 47 J. PAT.  OFF.  SOC. 669, 673-676 (1965). 

FN18  SEE N. 3, SUPRA. 

FN19  SEE RESPONDENT'S LETTER REQUESTING AMENDMENT, DATED JULY 21,
1960, RECORD, PP. 20-23.  SEE ALSO APPLICATION OF ADAMS, 50 C.C.P.A.
(PAT.)  1185, 1190, 316 F.2D 476, 479-480 (CONCURRING-DISSENTING
OPINION).  IN THE PRESENT CASE, THE BOARD OF APPEALS FOUND SUPPORT IN
THE RINGOLD ARTICLE ITSELF FOR THE VIEW THAT "MINOR CHANGES IN THE
STRUCTURE OF A STEROID MAY PRODUCE PROFOUND CHANGES IN ITS BIOLOGICAL
ACTIVITY."  RECORD, P. 52. 

FN20  NOTE ON THE PATENT LAWS, 3 WHEAT.  APP.  13, 24.  SEE ALSO
JUSTICE STORY'S DECISIONS ON CIRCUIT IN LOWELL V. LEWIS, 15 FED. CAS.
1018 (NO. 8568)(C.C.D. MASS.), AND BEDFORD V. HUNT, 3 FED. CAS. 37 (NO.
1217)(C.C.D. MASS.). 

FN21  "AS A REWARD FOR INVENTIONS AND TO ENCOURAGE THEIR DISCLOSURE,
THE UNITED STATES OFFERS A SEVENTEEN-YEAR MONOPOLY TO AN INVENTOR WHO
REFRAINS FROM KEEPING HIS INVENTION A TRADE SECRET."  UNIVERSAL OIL
PRODS.  CO. V. GLOBE OIL & REF. CO., 322 U.S. 471, 484. 

FN22  SEE MONSANTO CHEMICAL CO. V. COE, 79 U.S. APP. D.C. 155, 158
161, 145 F.2D 18, 21-24. 

FN23  SEE, E.G., THE DECISION BELOW, 52 C.C.P.A. (PAT.), AT 744, 333
F.2D, AT 237.  SEE ALSO APPLICATION OF BERGEL, 48 C.C.P.A. (PAT.), AT
1105, 292 F.2D, AT 958.  CF. APPLICATION OF NELSON, 47 C.C.P.A. (PAT.),
AT 1043-1044, 280 F.2D, AT 180-181; APPLICATION OF FOLKERS, 52 C.C.P.A.
(PAT.)  1269, 344 F.2D 970. 

FN24  THE COMMITTEE REPORTS WHICH PRECEDED ENACTMENT OF THE 1952
REVISION OF THE PATENT LAWS DISCLOSE NO INTENTION TO CREATE SUCH A
DICHOTOMY, AND IN FACT PROVIDE SOME EVIDENCE THAT THE CONTRARY WAS
ASSUMED.  SEN. REP. NO. 1979, COMMITTEE ON THE JUDICIARY, 82D CONG., 2D
SESS., 5, 17; H.R. REP. NO. 1923, COMMITTEE ON THE JUDICIARY, 82D
CONG., 2D SESS., 6, 17.  CF. HOXIE, A PATENT ATTORNEY'S VIEW, 47 J.
PAT.  OFF.  SOC. 630, 636 (1965). 

FN25  APPLICATION OF RUSCHIG, 52 C.C.P.A. (PAT.)  1238, 1245, 343
F.2D 965, 970 (RICH, J.).  SEE ALSO KATZ V. HORNI SIGNAL MFG. CORP.,
145 F.2D 961 (C.A.2D CIR.). 

MR. JUSTICE DOUGLAS, WHILE ACQUIESCING IN PART I OF THE COURT'S
OPINION, DISSENTS ON THE MERITS OF THE CONTROVERSY FOR SUBSTANTIALLY
THE REASONS STATED BY MR. JUSTICE HARLAN. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

WHILE I JOIN THE COURT'S OPINION ON THE ISSUE OF CERTIORARI
JURISDICTION, I CANNOT AGREE WITH ITS RESOLUTION OF THE IMPORTANT
QUESTION OF PATENTABILITY. 

RESPONDENT HAS CONTENDED THAT A WORKABLE CHEMICAL PROCESS, WHICH IS
BOTH NEW AND SUFFICIENTLY NONOBVIOUS TO SATISFY THE PATENT STATUTE, IS
BY ITS EXISTENCE ALONE A CONTRIBUTION TO CHEMISTRY AND "USEFUL" AS THE
STATUTE EMPLOYS THAT TERM.  (FN1)  CERTAINLY THIS READING OF "USEFUL"
IN THE STATUTE IS WITHIN THE SCOPE OF THE CONSTITUTIONAL GRANT, WHICH
STATES ONLY THAT "TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS,"
THE EXCLUSIVE RIGHT TO "WRITINGS AND DISCOVERIES" MAY BE SECURED FOR
LIMITED TIMES TO THOSE WHO PRODUCE THEM.  ART. I, SEC. 8.  YET THE
PATENT STATUTE IS SOMEWHAT DIFFERENTLY WORDED AND IS ON ITS FACE OPEN
BOTH TO RESPONDENT'S CONSTRUCTION AND TO THE CONTRARY READING GIVEN IT
BY THE COURT.  IN THE ABSENCE OF LEGISLATIVE HISTORY ON THIS ISSUE, WE
ARE THROWN BACK ON POLICY AND PRACTICE.  BECAUSE I BELIEVE THAT THE
COURT'S POLICY ARGUMENTS ARE NOT CONVINCING AND THAT PAST PRACTICE
FAVORS THE RESPONDENT, I WOULD REJECT THE NARROW DEFINITION OF "USEFUL"
AND UPHOLD THE JUDGMENT OF THE COURT OF CUSTOMS AND PATENT APPEALS
(HEREAFTER CCPA). 

THE COURT'S OPINION SETS OUT ABOUT HALF A DOZEN REASONS IN SUPPORT OF
ITS INTERPRETATION.  SEVERAL OF THESE ARGUMENTS SEEM TO ME TO HAVE
ALMOST NO FORCE.  FOR INSTANCE, IT IS SUGGESTED THAT "UNTIL THE PROCESS
CLAIM HAS BEEN REDUCED TO PRODUCTION OF A PRODUCT SHOWN TO BE USEFUL,
THE METES AND BOUNDS OF THAT MONOPOLY ARE NOT CAPABLE OF PRECISE
DELINEATION" (P. 534, ANTE) AND "IT MAY ENGROSS A VAST, UNKNOWN, AND
PERHAPS UNKNOWABLE AREA" (P. 534, ANTE).  I FAIL TO SEE THE RELEVANCE
OF THESE ASSERTIONS; PROCESS CLAIMS ARE NOT DISALLOWED BECAUSE THE
PRODUCTS THEY PRODUCE MAY BE OF "VAST" IMPORTANCE NOR, IN ANY EVENT,
DOES ADVANCE KNOWLEDGE OF A SPECIFIC PRODUCT USE PROVIDE MUCH SAFEGUARD
ON THIS SCORE OR FIX "METES AND BOUNDS" PRECISELY SINCE A HUNDRED MORE
USES MAY BE FOUND AFTER A PATENT IS GRANTED AND GREATLY ENHANCE ITS
VALUE. 

THE FURTHER ARGUMENT THAT AN ESTABLISHED PRODUCT USE IS PART OF "THE
BASIC QUID PRO QUO" (P. 534, ANTE) FOR THE PATENT OR IS THE REQUISITE
"SUCCESSFUL CONCLUSION" (P. 536, ANTE) OF THE INVENTOR'S SEARCH APPEARS
TO BEG THE VERY QUESTION WHETHER THE PROCESS IS "USEFUL" SIMPLY BECAUSE
IT FACILITATES FURTHER RESEARCH INTO POSSIBLE PRODUCT USES.  THE SAME
INFIRMITY SEEMS TO INHERE IN THE COURT'S ARGUMENT THAT CHEMICAL
PRODUCTS LACKING IMMEDIATE UTILITY CANNOT BE DISTINGUISHED FOR PRESENT
PURPOSES FROM THE PROCESSES WHICH CREATE THEM, THAT RESPONDENT APPEARS
TO CONCEDE AND THE CCPA HOLDS THAT THE PRODUCTS ARE NONPATENTABLE, AND
THAT THEREFORE THE PROCESSES ARE NONPATENTABLE.  ASSUMING THAT THE TWO
CLASSES CANNOT BE DISTINGUISHED, A POINT NOT ADEQUATELY CONSIDERED IN
THE BRIEFS, AND ASSUMING FURTHER THAT THE CCPA HAS FIRMLY HELD SUCH
PRODUCTS NONPATENTABLE, (FN2) THIS PERMITS US TO CONCLUDE ONLY THAT THE
CCPA IS WRONG EITHER AS TO THE PRODUCTS OR AS TO THE PROCESSES AND
AFFORDS NO BASIS FOR DECIDING WHETHER BOTH OR NEITHER SHOULD BE
PATENTABLE ABSENT A SPECIFIC PRODUCT USE. 

MORE TO THE POINT, I THINK, ARE THE COURT'S REMAINING, PRUDENTIAL
ARGUMENTS AGAINST PATENTABILITY: NAMELY, THAT DISCLOSURE INDUCED BY
ALLOWING A PATENT IS PARTLY UNDERCUT BY PATENT-APPLICATION DRAFTING
TECHNIQUES, THAT DISCLOSURE MAY OCCUR WITHOUT GRANTING A PATENT, AND
THAT A PATENT WILL DISCOURAGE OTHERS FROM INVENTING USES FOR THE
PRODUCT.  HOW FAR OPAQUE DRAFTING MAY LESSEN THE PUBLIC BENEFITS
RESULTING FROM THE ISSUANCE OF A PATENT IS NOT SHOWN BY ANY EVIDENCE IN
THIS CASE BUT, MORE IMPORTANT, THE ARGUMENT OPERATES AGAINST ALL
PATENTS AND GIVES NO REASON FOR SINGLING OUT THE CLASS INVOLVED HERE. 
THE THOUGHT THAT THESE INVENTIONS MAY BE MORE LIKELY THAN MOST TO BE
DISCLOSED EVEN IF PATENTS ARE NOT ALLOWED MAY HAVE MORE FORCE; BUT
WHILE EMPIRICAL STUDY OF THE INDUSTRY MIGHT REVEAL THAT CHEMICAL
RESEARCHERS WOULD BEHAVE IN THIS FASHION, THE ABSTRACTLY LOGICAL CHOICE
FOR THEM SEEMS TO ME TO MAINTAIN SECRECY UNTIL A PRODUCT USE CAN BE
DISCOVERED.  AS TO DISCOURAGING THE SEARCH BY OTHERS FOR PRODUCT USES,
THERE IS NO DOUBT THIS RISK EXISTS BUT THE PRICE PAID FOR ANY PATENT IS
THAT RESEARCH ON OTHER USES OR IMPROVEMENTS MAY BE HAMPERED BECAUSE THE
ORIGINAL PATENTEE WILL REAP MUCH OF THE REWARD.  FROM THE STANDPOINT OF
THE PUBLIC INTEREST THE CONSTITUTION SEEMS TO HAVE RESOLVED THAT CHOICE
IN FAVOR OF PATENTABILITY. 

WHAT I FIND MOST TROUBLING ABOUT THE RESULT REACHED BY THE COURT IS
THE IMPACT IT MAY HAVE ON CHEMICAL RESEARCH.  CHEMISTRY IS A HIGHLY
INTERRELATED FIELD AND A TANGIBLE BENEFIT FOR SOCIETY MAY BE THE
OUTCOME OF A NUMBER OF DIFFERENT DISCOVERIES, ONE DISCOVERY BUILDING
UPON THE NEXT.  TO ENCOURAGE ONE CHEMIST OR RESEARCH FACILITY TO INVENT
AND DISSEMINATE NEW PROCESSES AND PRODUCTS MAY BE VITAL TO PROGRESS,
ALTHOUGH THE PRODUCT OR PROCESS BE WITHOUT "UTILITY" AS THE COURT
DEFINES THE TERM, BECAUSE THAT DISCOVERY PERMITS SOMEONE ELSE TO TAKE A
FURTHER BUT PERHAPS LESS DIFFICULT STEP LEADING TO A COMMERCIALLY
USEFUL ITEM.  IN MY VIEW, OUR AWARENESS IN THIS AGE OF THE IMPORTANCE
OF ACHIEVING AND PUBLICIZING BASIC RESEARCH SHOULD LEAD THIS COURT TO
RESOLVE UNCERTAINTIES IN ITS FAVOR AND UPHOLD THE RESPONDENT'S POSITION
IN THIS CASE. 

THIS POSITION IS STRENGTHENED, I THINK, BY WHAT APPEARS TO HAVE BEEN
THE PRACTICE OF THE PATENT OFFICE DURING MOST OF THIS CENTURY.  WHILE
AVAILABLE PROOF IS NOT CONCLUSIVE, THE COMMENTATORS SEEM TO BE IN
AGREEMENT THAT UNTIL APPLICATION OF BREMNER, 37 C.C.P.A. (PAT.)  1032,
182 F.2D 216, IN 1950, CHEMICAL PATENT APPLICATIONS WERE COMMONLY
GRANTED ALTHOUGH NO RESULTING END USE WAS STATED OR THE STATEMENT WAS
IN EXTREMELY BROAD TERMS.  (FN3)  TAKING THIS TO BE TRUE, BREMNER
REPRESENTED A DEVIATION FROM ESTABLISHED PRACTICE WHICH THE CCPA HAS
NOW SOUGHT TO REMEDY IN PART ONLY TO FIND THAT THE PATENT OFFICE DOES
NOT WANT TO RETURN TO THE BEATEN TRACK.  IF USEFULNESS WAS TYPICALLY
REGARDED AS INHERENT DURING A LONG AND PROLIFIC PERIOD OF CHEMICAL
RESEARCH AND DEVELOPMENT IN THIS COUNTRY, SURELY THIS IS ADDED REASON
WHY THE COURT'S RESULT SHOULD NOT BE ADOPTED UNTIL CONGRESS EXPRESSLY
MANDATES IT, PRESUMABLY ON THE BASIS OF EMPIRICAL DATA WHICH THIS COURT
DOES NOT POSSESS. 

FULLY RECOGNIZING THAT THERE IS AMPLE ROOM FOR DISAGREEMENT ON THIS
PROBLEM WHEN, AS HERE, IT IS REVIEWED IN THE ABSTRACT, I BELIEVE THE
DECISION BELOW SHOULD BE AFFIRMED. 

FN1  THE STATUTE IN PERTINENT PART IS SET OUT IN THE COURT'S OPINION,
P. 529, ANTE. 

FN2  ANY CONCESSION BY RESPONDENT WOULD HARDLY BE CONTROLLING ON AN
ISSUE OF THIS GENERAL IMPORTANCE, BUT I AM LESS CLEAR THAN THE COURT
THAT SUCH A CONCESSION EXISTS.  SEE, E.G., BRIEF FOR RESPONDENT, P.
53.  AS TO THE CCPA, IT IS QUITE TRUE THAT THAT COURT PURPORTS IN THE
VERY CASE UNDER REVIEW AND IN OTHERS TO DISTINGUISH PRODUCT PATENTS,
ALTHOUGH ITS ACTUAL PRACTICE MAY BE SOMEWHAT LESS FIRM.  SEE
APPLICATION OF ADAMS, 50 C.C.P.A. (PAT.)  1185, 316 F.2D 476,
APPLICATION OF NELSON, 47 C.C.P.A. (PAT.)  1031, 280 F.2D 172.    FN3
SEE, E.G., THE STATEMENT OF A PATENT OFFICE EXAMINER-IN-CHIEF:  "UNTIL
RECENTLY IT WAS ALSO RATHER COMMON TO GET PATENTS ON CHEMICAL COMPOUNDS
IN CASES WHERE NO USE WAS INDICATED FOR THE CLAIMED COMPOUNDS OR IN
WHICH A VERY BROAD INDICATION OR SUGGESTION AS TO USE WAS INCLUDED IN
THE APPLICATION.  BREMNER AND ANOTHER LATER RULING  ...  HAVE PUT AN
END TO THIS PRACTICE."  WOLFFE, ADEQUACY OF DISCLOSURE AS REGARDS
SPECIFIC EMBODIMENT AND USE OF INVENTION, 41 J. PAT.  OFF.  SOC. 61, 66
(1959).  THE GOVERNMENT'S BRIEF IN THIS CASE IS IN ACCORD:  "IT WAS
APPARENTLY ASSUMED BY THE PATENT OFFICE PRIOR TO 1950  ...  THAT
CHEMICAL COMPOUNDS WERE NECESSARILY USEFUL  ...  AND THAT SPECIFIC
INQUIRY BEYOND THE SUCCESS OF THE PROCESS WAS THEREFORE UNNECESSARY
...  ."  BRIEF FOR THE COMMISSIONER, P. 25.  SEE ALSO COHEN & SCHWARTZ,
DO CHEMICAL INTERMEDIATES HAVE PATENTABLE UTILITY?  29 GEO. WASH.  L.
REV. 87, 91 (1960); NOTE, 53 GEO. L.J. 154, 183 (1964); 14 AM. U.L.
REV. 78 (1964). 
..END :
























KENT V. UNITED STATES 383 U.S. 541 


NO. 104.  ARGUED JANUARY 19, 1966.  - DECIDED MARCH 21, 1966.  - 119
U.S. APP. D.C. 378, 343 F.2D 247, REVERSED AND REMANDED. 


PETITIONER WAS ARRESTED AT THE AGE OF 16 IN CONNECTION WITH CHARGES OF
HOUSEBREAKING, ROBBERY AND RAPE.  AS A JUVENILE, HE WAS SUBJECT TO THE
EXCLUSIVE JURISDICTION OF THE DISTRICT OF COLUMBIA JUVENILE COURT
UNLESS THAT COURT, AFTER "FULL INVESTIGATION," SHOULD WAIVE
JURISDICTION OVER HIM AND REMIT HIM FOR TRIAL TO THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  PETITIONER'S COUNSEL
FILED A MOTION IN THE JUVENILE COURT FOR A HEARING ON THE QUESTION OF
WAIVER, AND FOR ACCESS TO THE JUVENILE COURT'S SOCIAL SERVICE FILE
WHICH HAD BEEN ACCUMULATED ON PETITIONER DURING HIS PROBATION FOR A
PRIOR OFFENSE.  THE JUVENILE COURT DID NOT RULE ON THESE MOTIONS.  IT
ENTERED AN ORDER WAIVING JURISDICTION, WITH THE RECITATION THAT THIS
WAS DONE AFTER THE REQUIRED "FULL INVESTIGATION."  PETITIONER WAS
INDICTED IN THE DISTRICT COURT.  HE MOVED TO DISMISS THE INDICTMENT ON
THE GROUND THAT THE JUVENILE COURT'S WAIVER WAS INVALID.  THE DISTRICT
COURT OVERRULED THE MOTION, AND PETITIONER WAS TRIED.  HE WAS CONVICTED
ON SIX COUNTS OF HOUSEBREAKING AND ROBBERY, BUT ACQUITTED ON TWO RAPE
COUNTS BY REASON OF INSANITY.  ON APPEAL PETITIONER RAISED AMONG OTHER
THINGS THE VALIDITY OF THE JUVENILE COURT'S WAIVER OF JURISDICTION; THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
AFFIRMED, FINDING THE PROCEDURE LEADING TO WAIVER AND THE WAIVER ORDER
ITSELF VALID.  HELD:  THE JUVENILE COURT ORDER WAIVING JURISDICTION AND
REMITTING PETITIONER FOR TRIAL IN THE DISTRICT COURT WAS INVALID.  PP.
552-564. 

(A)  THE JUVENILE COURT'S LATITUDE IN DETERMINING WHETHER TO WAIVE
JURISDICTION IS NOT COMPLETE.  IT "ASSUMES PROCEDURAL REGULARITY
SUFFICIENT IN THE PARTICULAR CIRCUMSTANCES TO SATISFY THE BASIC
REQUIREMENTS OF DUE PROCESS AND FAIRNESS, AS WELL AS COMPLIANCE WITH
THE STATUTORY REQUIREMENT OF A 'FULL INVESTIGATION.'"  PP. 552-554. 

(B)  THE PARENS PATRIAE PHILOSOPHY OF THE JUVENILE COURT "IS NOT AN
INVITATION TO PROCEDURAL ARBITRARINESS."  PP. 554-556. 

(C)  AS THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT HAS
HELD, "THE WAIVER OF JURISDICTION IS A 'CRITICALLY IMPORTANT' ACTION
DETERMINING VITALLY IMPORTANT STATUTORY RIGHTS OF THE JUVENILE."  PP.
556-557. 

(D)  THE JUVENILE COURT ACT REQUIRES "FULL INVESTIGATION" AND MAKES
THE JUVENILE COURT RECORDS AVAILABLE TO PERSONS HAVING A "LEGITIMATE
INTEREST IN THE PROTECTION  ...  OF THE CHILD  ...  ."  THESE
PROVISIONS, "READ IN THE CONTEXT OF CONSTITUTIONAL PRINCIPLES RELATING
TO DUE PROCESS AND THE ASSISTANCE OF COUNSEL," ENTITLE A JUVENILE TO A
HEARING, TO ACCESS BY HIS COUNSEL TO SOCIAL RECORDS AND PROBATION OR
SIMILAR REPORTS WHICH PRESUMABLY ARE CONSIDERED BY THE JUVENILE COURT,
AND TO A STATEMENT OF THE REASONS FOR THE JUVENILE COURT'S DECISION
SUFFICIENT TO ENABLE MEANINGFUL APPELLATE REVIEW THEREOF.  PP. 557
563. 

(E)  SINCE PETITIONER IS NOW 21 AND BEYOND THE JURISDICTION OF THE
JUVENILE COURT, THE ORDER OF THE COURT OF APPEALS AND THE JUDGMENT OF
THE DISTRICT COURT ARE VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR A HEARING DE NOVO, CONSISTENT WITH THIS OPINION, ON WHETHER
WAIVER WAS APPROPRIATE WHEN ORDERED BY THE JUVENILE COURT.  "IF THAT
COURT FINDS THAT WAIVER WAS INAPPROPRIATE, PETITIONER'S CONVICTION MUST
BE VACATED.  IF, HOWEVER, IT FINDS THAT THE WAIVER ORDER WAS PROPER
WHEN ORIGINALLY MADE, THE DISTRICT COURT MAY PROCEED, AFTER
CONSIDERATION OF SUCH MOTIONS AS COUNSEL MAY MAKE AND SUCH FURTHER
PROCEEDINGS, IF ANY, AS MAY BE WARRANTED, TO ENTER AN APPROPRIATE
JUDGMENT."  PP. 564-565. 

KENT V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT.  THE FACTS AND THE CONTENTIONS OF
COUNSEL RAISE A NUMBER OF DISTURBING QUESTIONS CONCERNING THE
ADMINISTRATION BY THE POLICE AND THE JUVENILE COURT AUTHORITIES OF THE
DISTRICT OF COLUMBIA LAWS RELATING TO JUVENILES.  APART FROM RAISING
QUESTIONS AS TO THE ADEQUACY OF CUSTODIAL AND TREATMENT FACILITIES AND
POLICIES, SOME OF WHICH ARE NOT WITHIN JUDICIAL COMPETENCE, THE CASE
PRESENTS IMPORTANT CHALLENGES TO THE PROCEDURE OF THE POLICE AND
JUVENILE COURT OFFICIALS UPON APPREHENSION OF A JUVENILE SUSPECTED OF
SERIOUS OFFENSES.  BECAUSE WE CONCLUDE THAT THE JUVENILE COURT'S ORDER
WAIVING JURISDICTION OF PETITIONER WAS ENTERED WITHOUT COMPLIANCE WITH
REQUIRED PROCEDURES, WE REMAND THE CASE TO THE TRIAL COURT. 

MORRIS A. KENT, JR., FIRST CAME UNDER THE AUTHORITY OF THE JUVENILE
COURT OF THE DISTRICT OF COLUMBIA IN 1959.  HE WAS THEN AGED 14.  HE
WAS APPREHENDED AS A RESULT OF SEVERAL HOUSEBREAKINGS AND AN ATTEMPTED
PURSE SNATCHING.  HE WAS PLACED ON PROBATION, IN THE CUSTODY OF HIS
MOTHER WHO HAD BEEN SEPARATED FROM HER HUSBAND SINCE KENT WAS TWO YEARS
OLD.  JUVENILE COURT OFFICIALS INTERVIEWED KENT FROM TIME TO TIME
DURING THE PROBATION PERIOD AND ACCUMULATED A "SOCIAL SERVICE" FILE. 

ON SEPTEMBER 2, 1961, AN INTRUDER ENTERED THE APARTMENT OF A WOMAN IN
THE DISTRICT OF COLUMBIA.  HE TOOK HER WALLET.  HE RAPED HER.  THE
POLICE FOUND IN THE APARTMENT LATENT FINGERPRINTS.  THEY WERE DEVELOPED
AND PROCESSED.  THEY MATCHED THE FINGERPRINTS OF MORRIS KENT, TAKEN
WHEN HE WAS 14 YEARS OLD AND UNDER THE JURISDICTION OF THE JUVENILE
COURT.  AT ABOUT 3 P.M. ON SEPTEMBER 5, 1961, KENT WAS TAKEN INTO
CUSTODY BY THE POLICE.  KENT WAS THEN 16 AND THEREFORE SUBJECT TO THE
"EXCLUSIVE JURISDICTION" OF THE JUVENILE COURT.  D.C. CODE SEC. 11-907
(1961), NOW SEC. 11-1551 (SUPP. IV, 1965).  HE WAS STILL ON PROBATION
TO THAT COURT AS A RESULT OF THE 1959 PROCEEDINGS. 

UPON BEING APPREHENDED, KENT WAS TAKEN TO POLICE HEADQUARTERS WHERE
HE WAS INTERROGATED BY POLICE OFFICERS.  IT APPEARS THAT HE ADMITTED
HIS INVOLVEMENT IN THE OFFENSE WHICH LED TO HIS APPREHENSION AND
VOLUNTEERED INFORMATION AS TO SIMILAR OFFENSES INVOLVING HOUSEBREAKING,
ROBBERY, AND RAPE.  HIS INTERROGATION PROCEEDED FROM ABOUT 3 P.M. TO 10
P.M. THE SAME EVENING.  (FN1) 

SOME TIME AFTER 10 P.M. PETITIONER WAS TAKEN TO THE RECEIVING HOME
FOR CHILDREN.  THE NEXT MORNING HE WAS RELEASED TO THE POLICE FOR
FURTHER INTERROGATION AT POLICE HEADQUARTERS, WHICH LASTED UNTIL 5 P.M.
(FN2) 

THE RECORD DOES NOT SHOW WHEN HIS MOTHER BECAME AWARE THAT THE BOY
WAS IN CUSTODY, BUT SHORTLY AFTER 2 P.M. ON SEPTEMBER 6, 1961, THE DAY
FOLLOWING PETITIONER'S APPREHENSION, SHE RETAINED COUNSEL. 

COUNSEL, TOGETHER WITH PETITIONER'S MOTHER, PROMPTLY CONFERRED WITH
THE SOCIAL SERVICE DIRECTOR OF THE JUVENILE COURT.  IN A BRIEF
INTERVIEW, THEY DISCUSSED THE POSSIBILITY THAT THE JUVENILE COURT MIGHT
WAIVE JURISDICTION UNDER D.C. CODE SEC. 11-914 (1961), NOW SEC. 11-1553
(SUPP. IV, 1965) AND REMIT KENT TO TRIAL BY THE DISTRICT COURT. 
COUNSEL MADE KNOWN HIS INTENTION TO OPPOSE WAIVER. 

PETITIONER WAS DETAINED AT THE RECEIVING HOME FOR ALMOST A WEEK. 
THERE WAS NO ARRAIGNMENT DURING THIS TIME, NO DETERMINATION BY A
JUDICIAL OFFICER OF PROBABLE CAUSE FOR PETITIONER'S APPREHENSION. 
(FN3) 

DURING THIS PERIOD OF DETENTION AND INTERROGATION, PETITIONER'S
COUNSEL ARRANGED FOR EXAMINATION OF PETITIONER BY TWO PSYCHIATRISTS AND
A PSYCHOLOGIST.  HE THEREAFTER FILED WITH THE JUVENILE COURT A MOTION
FOR A HEARING ON THE QUESTION OF WAIVER OF JUVENILE COURT JURISDICTION,
TOGETHER WITH AN AFFIDAVIT OF A PSYCHIATRIST CERTIFYING THAT PETITIONER
"IS A VICTIM OF SEVERE PSYCHOPATHOLOGY" AND RECOMMENDING
HOSPITALIZATION FOR PSYCHIATRIC OBSERVATION.  PETITIONER'S COUNSEL, IN
SUPPORT OF HIS MOTION TO THE EFFECT THAT THE JUVENILE COURT SHOULD
RETAIN JURISDICTION OF PETITIONER, OFFERED TO PROVE THAT IF PETITIONER
WERE GIVEN ADEQUATE TREATMENT IN A HOSPITAL UNDER THE AEGIS OF THE
JUVENILE COURT, HE WOULD BE A SUITABLE SUBJECT FOR REHABILITATION. 

AT THE SAME TIME, PETITIONER'S COUNSEL MOVED THAT THE JUVENILE COURT
SHOULD GIVE HIM ACCESS TO THE SOCIAL SERVICE FILE RELATING TO
PETITIONER WHICH HAD BEEN ACCUMULATED BY THE STAFF OF THE JUVENILE
COURT DURING PETITIONER'S PROBATION PERIOD, AND WHICH WOULD BE
AVAILABLE TO THE JUVENILE COURT JUDGE IN CONSIDERING THE QUESTION
WHETHER IT SHOULD RETAIN OR WAIVE JURISDICTION.  PETITIONER'S COUNSEL
REPRESENTED THAT ACCESS TO THIS FILE WAS ESSENTIAL TO HIS PROVIDING
PETITIONER WITH EFFECTIVE ASSISTANCE OF COUNSEL. 

THE JUVENILE COURT JUDGE DID NOT RULE ON THESE MOTIONS.  HE HELD NO
HEARING.  HE DID NOT CONFER WITH PETITIONER OR PETITIONER'S PARENTS OR
PETITIONER'S COUNSEL.  HE ENTERED AN ORDER RECITING THAT AFTER "FULL
INVESTIGATION, I DO HEREBY WAIVE" JURISDICTION OF PETITIONER AND
DIRECTING THAT HE BE "HELD FOR TRIAL FOR THE ALLEGED OFFENSES UNDER THE
REGULAR PROCEDURE OF THE U.S. DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA."  HE MADE NO FINDINGS.  HE DID NOT RECITE ANY REASON FOR THE
WAIVER.  (FN4)  HE MADE NO REFERENCE TO THE MOTIONS FILED BY
PETITIONER'S COUNSEL.  WE MUST ASSUME THAT HE DENIED, SUB SILENTIO, THE
MOTIONS FOR A HEARING, THE RECOMMENDATION FOR HOSPITALIZATION FOR
PSYCHIATRIC OBSERVATION, THE REQUEST FOR ACCESS TO THE SOCIAL SERVICE
FILE, AND THE OFFER TO PROVE THAT PETITIONER WAS A FIT SUBJECT FOR
REHABILITATION UNDER THE JUVENILE COURT'S JURISDICTION.  (FN5)

PRESUMABLY, PRIOR TO ENTRY OF HIS ORDER, THE JUVENILE COURT JUDGE
RECEIVED AND CONSIDERED RECOMMENDATIONS OF THE JUVENILE COURT STAFF,
THE SOCIAL SERVICE FILE RELATING TO PETITIONER, AND A REPORT DATED
SEPTEMBER 8, 1961 (THREE DAYS FOLLOWING PETITIONER'S APPREHENSION),
SUBMITTED TO HIM BY THE JUVENILE PROBATION SECTION.  THE SOCIAL SERVICE
FILE AND THE SEPTEMBER 8 REPORT WERE LATER SENT TO THE DISTRICT COURT
AND IT APPEARS THAT BOTH OF THEM REFERRED TO PETITIONER'S MENTAL
CONDITION.  THE SEPTEMBER 8 REPORT SPOKE OF "A RAPID DETERIORATION OF
PETITIONER'S PERSONALITY STRUCTURE AND THE POSSIBILITY OF MENTAL
ILLNESS."  AS STATED, NEITHER THIS REPORT NOR THE SOCIAL SERVICE FILE
WAS MADE AVAILABLE TO PETITIONER'S COUNSEL. 

THE PROVISION OF THE JUVENILE COURT ACT GOVERNING WAIVER EXPRESSLY
PROVIDES ONLY FOR "FULL INVESTIGATION."  IT STATES THE CIRCUMSTANCES IN
WHICH JURISDICTION MAY BE WAIVED AND THE CHILD HELD FOR TRIAL UNDER
ADULT PROCEDURES, BUT IT DOES NOT STATE STANDARDS TO GOVERN THE
JUVENILE COURT'S DECISION AS TO WAIVER.  THE PROVISION READS AS
FOLLOWS: 

"IF A CHILD SIXTEEN YEARS OF AGE OR OLDER IS CHARGED WITH AN OFFENSE
WHICH WOULD AMOUNT TO A FELONY IN THE CASE OF AN ADULT, OR ANY CHILD
CHARGED WITH AN OFFENSE WHICH IF COMMITTED BY AN ADULT IS PUNISHABLE BY
DEATH OR LIFE IMPRISONMENT, THE JUDGE MAY, AFTER FULL INVESTIGATION,
WAIVE JURISDICTION AND ORDER SUCH CHILD HELD FOR TRIAL UNDER THE
REGULAR PROCEDURE OF THE COURT WHICH WOULD HAVE JURISDICTION OF SUCH
OFFENSE IF COMMITTED BY AN ADULT; OR SUCH OTHER COURT MAY EXERCISE THE
POWERS CONFERRED UPON THE JUVENILE COURT IN THIS SUBCHAPTER IN
CONDUCTING AND DISPOSING OF SUCH CASES."  (FN6) 

PETITIONER APPEALED FROM THE JUVENILE COURT'S WAIVER ORDER TO THE
MUNICIPAL COURT OF APPEALS, WHICH AFFIRMED, AND ALSO APPLIED TO THE
UNITED STATES DISTRICT COURT FOR A WRIT OF HABEAS CORPUS, WHICH WAS
DENIED.  ON APPEAL FROM THOSE JUDGMENTS, THE UNITED STATES COURT OF
APPEALS HELD ON JANUARY 22, 1963, THAT NEITHER APPEAL TO THE MUNICIPAL
COURT OF APPEALS NOR HABEAS CORPUS WAS AVAILABLE.  IN THE COURT OF
APPEALS' VIEW, THE EXCLUSIVE METHOD OF REVIEWING THE JUVENILE COURT'S
WAIVER ORDER WAS A MOTION TO DISMISS THE INDICTMENT IN THE DISTRICT
COURT.  KENT V. REID, 114 U.S. APP. D.C. 330, 316 F.2D 331 (1963). 

MEANWHILE, ON SEPTEMBER 25, 1961, SHORTLY AFTER THE JUVENILE COURT
ORDER WAIVING ITS JURISDICTION, PETITIONER WAS INDICTED BY A GRAND JURY
OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  THE
INDICTMENT CONTAINED EIGHT COUNTS ALLEGING TWO INSTANCES OF
HOUSEBREAKING, ROBBERY, AND RAPE, AND ONE OF HOUSEBREAKING AND
ROBBERY.  ON NOVEMBER 16, 1961, PETITIONER MOVED THE DISTRICT COURT TO
DISMISS THE INDICTMENT ON THE GROUNDS THAT THE WAIVER WAS INVALID.  HE
ALSO MOVED THE DISTRICT COURT TO CONSTITUTE ITSELF A JUVENILE COURT AS
AUTHORIZED BY D.C. CODE SEC. 11-914 (1961), NOW SEC. 11-1553 (SUPP. IV,
1965).  AFTER SUBSTANTIAL DELAY OCCASIONED BY PETITIONER'S APPEAL AND
HABEAS CORPUS PROCEEDINGS, THE DISTRICT COURT ADDRESSED ITSELF TO THE
MOTION TO DISMISS ON FEBRUARY 8, 1963.  (FN7) 

THE DISTRICT COURT DENIED THE MOTION TO DISMISS THE INDICTMENT.  THE
DISTRICT COURT RULES THAT IT WOULD NOT "GO BEHIND" THE JUVENILE COURT
JUDGE'S RECITAL THAT HIS ORDER WAS ENTERED "AFTER FULL INVESTIGATION." 
IT HELD THAT "THE ONLY MATTER BEFORE ME IS AS TO WHETHER OR NOT THE
STATUTORY PROVISIONS WERE COMPLIED WITH AND THE COURTS HAVE HELD  ...
WITH REFERENCE TO FULL INVESTIGATION, THAT THAT DOES NOT MEAN A QUASI
JUDICIAL OR JUDICIAL HEARING.  NO HEARING IS REQUIRED." 

ON MARCH 7, 1963, THE DISTRICT COURT HELD A HEARING ON PETITIONER'S
MOTION TO DETERMINE HIS COMPETENCY TO STAND TRIAL.  THE COURT
DETERMINED THAT PETITIONER WAS COMPETENT.  (FN8) 

AT TRIAL, PETITIONER'S DEFENSE WAS WHOLLY DIRECTED TOWARD PROVING
THAT HE WAS NOT CRIMINALLY RESPONSIBLE BECAUSE "HIS UNLAWFUL ACT WAS
THE PRODUCT OF MENTAL DISEASE OR MENTAL DEFECT."  DURHAM V. UNITED
STATES, 94 U.S. APP. D.C. 228, 241, 214 F.2D 862, 875 (1954). 
EXTENSIVE EVIDENCE, INCLUDING EXPERT TESTIMONY, WAS PRESENTED TO
SUPPORT THIS DEFENSE.  THE JURY FOUND AS TO THE COUNTS ALLEGING RAPE
THAT PETITIONER WAS "NOT GUILTY BY REASON OF INSANITY."  UNDER DISTRICT
OF COLUMBIA LAW, THIS MADE IT MANDATORY THAT PETITIONER BE TRANSFERRED
TO ST. ELIZABETHS HOSPITAL, A MENTAL INSTITUTION, UNTIL HIS SANITY IS
RESTORED.  (FN9)  ON THE SIX COUNTS OF HOUSEBREAKING AND ROBBERY, THE
JURY FOUND THAT PETITIONER WAS GUILTY.  (FN10) 

KENT WAS SENTENCED TO SERVE FIVE TO 15 YEARS ON EACH COUNT AS TO
WHICH HE WAS FOUND GUILTY, OR A TOTAL OF 30 TO 90 YEARS IN PRISON.  THE
DISTRICT COURT ORDERED THAT THE TIME TO BE SPENT AT ST. ELIZABETHS ON
THE MANDATORY COMMITMENT AFTER THE INSANITY ACQUITTAL BE COUNTED AS
PART OF THE 30- TO 90-YEAR SENTENCE.  PETITIONER APPEALED TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  THAT
COURT AFFIRMED.  119 U.S. APP. D.C. 378, 343 F.2D 247 (1964).  (FN11) 

BEFORE THE COURT OF APPEALS AND IN THIS COURT, PETITIONER'S COUNSEL
HAS URGED A NUMBER OF GROUNDS FOR REVERSAL.  HE ARGUES THAT
PETITIONER'S DETENTION AND INTERROGATION, DESCRIBED ABOVE, WERE
UNLAWFUL.  HE CONTENDS THAT THE POLICE FAILED TO FOLLOW THE PROCEDURE
PRESCRIBED BY THE JUVENILE COURT ACT IN THAT THEY FAILED TO NOTIFY THE
PARENTS OF THE CHILD AND THE JUVENILE COURT ITSELF, NOTE 1, SUPRA; THAT
PETITIONER WAS DEPRIVED OF HIS LIBERTY FOR ABOUT A WEEK WITHOUT A
DETERMINATION OF PROBABLE CAUSE WHICH WOULD HAVE BEEN REQUIRED IN THE
CASE OF AN ADULT, SEE NOTE 3, SUPRA; THAT HE WAS INTERROGATED BY THE
POLICE IN THE ABSENCE OF COUNSEL OR A PARENT, CF. HARLING V. UNITED
STATES, 111 U.S. APP. D.C. 174, 176, 295 F.2D 161, 163, N. 12 (1961),
WITHOUT WARNING OF HIS RIGHT TO REMAIN SILENT OR ADVICE AS TO HIS RIGHT
TO COUNSEL, IN ASSERTED VIOLATION OF THE JUVENILE COURT ACT AND IN
VIOLATION OF RIGHTS THAT HE WOULD HAVE IF HE WERE AN ADULT; AND THAT
PETITIONER WAS FINGERPRINTED IN VIOLATION OF THE ASSERTED INTENT OF THE
JUVENILE COURT ACT AND WHILE UNLAWFULLY DETAINED AND THAT THE
FINGERPRINTS WERE UNLAWFULLY USED IN THE DISTRICT COURT PROCEEDING. 
(FN12) 

THESE CONTENTIONS RAISE PROBLEMS OF SUBSTANTIAL CONCERN AS TO THE
CONSTRUCTION OF AND COMPLIANCE WITH THE JUVENILE COURT ACT.  THEY ALSO
SUGGEST BASIC ISSUES AS TO THE JUSTIFIABILITY OF AFFORDING A JUVENILE
LESS PROTECTION THAN IS ACCORDED TO ADULTS SUSPECTED OF CRIMINAL
OFFENSES, PARTICULARLY WHERE, AS HERE, THERE IS AN ABSENCE OF ANY
INDICATION THAT THE DENIAL OF RIGHTS AVAILABLE TO ADULTS WAS OFFSET,
MITIGATED OR EXPLAINED BY ACTION OF THE GOVERNMENT, AS PARENS PATRIAE,
EVIDENCING THE SPECIAL SOLICITUDE FOR JUVENILES COMMANDED BY THE
JUVENILE COURT ACT.  HOWEVER, BECAUSE WE REMAND THE CASE ON ACCOUNT OF
THE PROCEDURAL ERROR WITH RESPECT TO WAIVER OF JURISDICTION, WE DO NOT
PASS UPON THESE QUESTIONS.  (FN13) 

IT IS TO PETITIONER'S ARGUMENTS AS TO THE INFIRMITY OF THE
PROCEEDINGS BY WHICH THE JUVENILE COURT WAIVED ITS OTHERWISE EXCLUSIVE
JURISDICTION THAT WE ADDRESS OUR ATTENTION.  PETITIONER ATTACKS THE
WAIVER OF JURISDICTION ON A NUMBER OF STATUTORY AND CONSTITUTIONAL
GROUNDS.  HE CONTENDS THAT THE WAIVER IS DEFECTIVE BECAUSE NO HEARING
WAS HELD; BECAUSE NO FINDINGS WERE MADE BY THE JUVENILE COURT; BECAUSE
THE JUVENILE COURT STATED NO REASONS FOR WAIVER; AND BECAUSE COUNSEL
WAS DENIED ACCESS TO THE SOCIAL SERVICE FILE WHICH PRESUMABLY WAS
CONSIDERED BY THE JUVENILE COURT IN DETERMINING TO WAIVE JURISDICTION. 
WE AGREE THAT THE ORDER OF THE JUVENILE COURT WAIVING ITS
JURISDICTION AND TRANSFERRING PETITIONER FOR TRIAL IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WAS INVALID.  THERE IS NO
QUESTION THAT THE ORDER IS REVIEWABLE ON MOTION TO DISMISS THE
INDICTMENT IN THE DISTRICT COURT, AS SPECIFIED BY THE COURT OF APPEALS
IN THIS CASE.  KENT V. REID, SUPRA.  THE ISSUE IS THE STANDARDS TO BE
APPLIED UPON SUCH REVIEW. 

WE AGREE WITH THE COURT OF APPEALS THAT THE STATUTE CONTEMPLATES THAT
THE JUVENILE COURT SHOULD HAVE CONSIDERABLE LATITUDE WITHIN WHICH TO
DETERMINE WHETHER IT SHOULD RETAIN JURISDICTION OVER A CHILD OR -
SUBJECT TO THE STATUTORY DELIMITATION (FN14) - SHOULD WAIVE
JURISDICTION.  BUT THIS LATITUDE IS NOT COMPLETE.  AT THE OUTSET, IT
ASSUMES PROCEDURAL REGULARITY SUFFICIENT IN THE PARTICULAR
CIRCUMSTANCES TO SATISFY THE BASIC REQUIREMENTS OF DUE PROCESS AND
FAIRNESS, AS WELL AS COMPLIANCE WITH THE STATUTORY REQUIREMENT OF A
"FULL INVESTIGATION."  GREEN V. UNITED STATES, 113 U.S. APP. D.C. 348,
308 F.2D 303 (1962).  (FN15)  THE STATUTE GIVES THE JUVENILE COURT A
SUBSTANTIAL DEGREE OF DISCRETION AS TO THE FACTUAL CONSIDERATIONS TO BE
EVALUATED, THE WEIGHT TO BE GIVEN THEM AND THE CONCLUSION TO BE
REACHED.  IT DOES NOT CONFER UPON THE JUVENILE COURT A LICENSE FOR
ARBITRARY PROCEDURE.  THE STATUTE DOES NOT PERMIT THE JUVENILE COURT TO
DETERMINE IN ISOLATION AND WITHOUT THE PARTICIPATION OR ANY
REPRESENTATION OF THE CHILD THE "CRITICALLY IMPORTANT" QUESTION WHETHER
A CHILD WILL BE DEPRIVED OF THE SPECIAL PROTECTIONS AND PROVISIONS OF
THE JUVENILE COURT ACT.  (FN16)  IT DOES NOT AUTHORIZE THE JUVENILE
COURT, IN TOTAL DISREGARD OF A MOTION FOR HEARING FILED BY COUNSEL, AND
WITHOUT ANY HEARING OR STATEMENT OR REASONS, TO DECIDE - AS IN THIS
CASE - THAT THE CHILD WILL BE TAKEN FROM THE RECEIVING HOME FOR
CHILDREN AND TRANSFERRED TO JAIL ALONG WITH ADULTS, AND THAT HE WILL BE
EXPOSED TO THE POSSIBILITY OF A DEATH SENTENCE (FN17) INSTEAD OF
TREATMENT FOR A MAXIMUM, IN KENT'S CASE, OF FIVE YEARS, UNTIL HE IS
21.  (FN18) 

WE DO NOT CONSIDER WHETHER, ON THE MERITS, KENT SHOULD HAVE BEEN
TRANSFERRED; BUT THERE IS NO PLACE IN OUR SYSTEM OF LAW FOR REACHING A
RESULT OF SUCH TREMENDOUS CONSEQUENCES WITHOUT CEREMONY - WITHOUT
HEARING, WITHOUT EFFECTIVE ASSISTANCE OF COUNSEL, WITHOUT A STATEMENT
OF REASONS.  IT IS INCONCEIVABLE THAT A COURT OF JUSTICE DEALING WITH
ADULTS, WITH RESPECT TO A SIMILAR ISSUE, WOULD PROCEED IN THIS MANNER. 
IT WOULD BE EXTRAORDINARY IF SOCIETY'S SPECIAL CONCERN FOR CHILDREN, AS
REFLECTED IN THE DISTRICT OF COLUMBIA'S JUVENILE COURT ACT, PERMITTED
THIS PROCEDURE.  WE HOLD THAT IT DOES NOT. 

1.  THE THEORY OF THE DISTRICT'S JUVENILE COURT ACT, LIKE THAT OF
OTHER JURISDICTIONS, (FN19) IS ROOTED IN SOCIAL WELFARE PHILOSOPHY
RATHER THAN IN THE CORPUS JURIS.  ITS PROCEEDINGS ARE DESIGNATED AS
CIVIL RATHER THAN CRIMINAL.  THE JUVENILE COURT IS THEORETICALLY
ENGAGED IN DETERMINING THE NEEDS OF THE CHILD AND OF SOCIETY RATHER
THAN ADJUDICATING CRIMINAL CONDUCT.  THE OBJECTIVES ARE TO PROVIDE
MEASURES OF GUIDANCE AND REHABILITATION FOR THE CHILD AND PROTECTION
FOR SOCIETY, NOT TO FIX CRIMINAL RESPONSIBILITY, GUILT AND PUNISHMENT. 
THE STATE IS PARENS PATRIAE RATHER THAN PROSECUTING ATTORNEY AND
JUDGE.  (FN20)  BUT THE ADMONITION TO FUNCTION IN A "PARENTAL"
RELATIONSHIP IS NOT AN INVITATION TO PROCEDURAL ARBITRARINESS. 

2.  BECAUSE THE STATE IS SUPPOSED TO PROCEED IN RESPECT OF THE CHILD
AS PARENS PATRIAE AND NOT AS ADVERSARY, COURTS HAVE RELIED ON THE
PREMISE THAT THE PROCEEDINGS ARE "CIVIL" IN NATURE AND NOT CRIMINAL,
AND HAVE ASSERTED THAT THE CHILD CANNOT COMPLAIN OF THE DEPRIVATION OF
IMPORTANT RIGHTS AVAILABLE IN CRIMINAL CASES.  IT HAS BEEN ASSERTED
THAT HE CAN CLAIM ONLY THE FUNDAMENTAL DUE PROCESS RIGHT TO FAIR
TREATMENT.  (FN21)  FOR EXAMPLE, IT HAS BEEN HELD THAT HE IS NOT
ENTITLED TO BAIL; TO INDICTMENT BY GRAND JURY; TO A SPEEDY AND PUBLIC
TRIAL; TO TRIAL BY JURY; TO IMMUNITY AGAINST SELF-INCRIMINATION; TO
CONFRONTATION OF HIS ACCUSERS; AND IN SOME JURISDICTIONS (BUT NOT IN
THE DISTRICT OF COLUMBIA, SEE SHIOUTAKON V. DISTRICT OF COLUMBIA, 98
U.S. APP. D.C. 371, 236 F.2D 666 (1956), AND BLACK V. UNITED STATES,
SUPRA) THAT HE IS NOT ENTITLED TO COUNSEL.  (FN22) 

WHILE THERE CAN BE NO DOUBT OF THE ORIGINAL LAUDABLE PURPOSE OF
JUVENILE COURTS, STUDIES AND CRITIQUES IN RECENT YEARS RAISE SERIOUS
QUESTIONS AS TO WHETHER ACTUAL PERFORMANCE MEASURES WELL ENOUGH AGAINST
THEORETICAL PURPOSE TO MAKE TOLERABLE THE IMMUNITY OF THE PROCESS FROM
THE REACH OF CONSTITUTIONAL GUARANTIES APPLICABLE TO ADULTS.  (FN23). 
THERE IS MUCH EVIDENCE THAT SOME JUVENILE COURTS, INCLUDING THAT OF THE
DISTRICT OF COLUMBIA, LACK THE PERSONNEL, FACILITIES AND TECHNIQUES TO
PERFORM ADEQUATELY AS REPRESENTATIVES OF THE STATE IN A PARENS PATRIAE
CAPACITY, AT LEAST WITH RESPECT TO CHILDREN CHARGED WITH LAW
VIOLATION.  THERE IS EVIDENCE, IN FACT, THAT THERE MAY BE GROUNDS FOR
CONCERN THAT THE CHILD RECEIVES THE WORST OF BOTH WORLDS: THAT HE GETS
NEITHER THE PROTECTIONS ACCORDED TO ADULTS NOR THE SOLICITOUS CARE AND
REGENERATIVE TREATMENT POSTULATED FOR CHILDREN.  (FN24) 

THIS CONCERN, HOWEVER, DOES NOT INDUCE US IN THIS CASE TO ACCEPT THE
INVITATION (FN25) TO RULE THAT CONSTITUTIONAL GUARANTIES WHICH WOULD BE
APPLICABLE TO ADULTS CHARGED WITH THE SERIOUS OFFENSES FOR WHICH KENT
WAS TRIED MUST BE APPLIED IN JUVENILE COURT PROCEEDINGS CONCERNED WITH
ALLEGATIONS OF LAW VIOLATION.  THE JUVENILE COURT ACT AND THE DECISIONS
OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT PROVIDE AN ADEQUATE BASIS FOR DECISION OF THIS CASE, AND WE GO
NO FURTHER. 

3.  IT IS CLEAR BEYOND DISPUTE THAT THE WAIVER OF JURISDICTION IS A
"CRITICALLY IMPORTANT" ACTION DETERMINING VITALLY IMPORTANT STATUTORY
RIGHTS OF THE JUVENILE.  THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT HAS SO HELD.  SEE BLACK V. UNITED STATES, SUPRA;
WATKINS V. UNITED STATES, 119 U.S. APP. D.C. 409, 343 F.2D 278 (1964). 
THE STATUTORY SCHEME MAKES THIS PLAIN.  THE JUVENILE COURT IS VESTED
WITH "ORIGINAL AND EXCLUSIVE JURISDICTION" OF THE CHILD.  THIS
JURISDICTION CONFERS SPECIAL RIGHTS AND IMMUNITIES.  HE IS, AS
SPECIFIED BY THE STATUTE, SHIELDED FROM PUBLICITY.   HE MAY BE
CONFINED, BUT WITH RARE EXCEPTIONS HE MAY NOT BE JAILED ALONG WITH
ADULTS.  HE MAY BE DETAINED, BUT ONLY UNTIL HE IS 21 YEARS OF AGE.  THE
COURT IS ADMONISHED BY THE STATUTE TO GIVE PREFERENCE TO RETAINING THE
CHILD IN THE CUSTODY OF HIS PARENTS "UNLESS HIS WELFARE AND THE SAFETY
AND PROTECTION OF THE PUBLIC CAN NOT BE ADEQUATELY SAFEGUARDED WITHOUT
...  REMOVAL."  THE CHILD IS PROTECTED AGAINST CONSEQUENCES OF ADULT
CONVICTION SUCH AS THE LOSS OF CIVIL RIGHTS, THE USE OF ADJUDICATION
AGAINST HIM IN SUBSEQUENT PROCEEDINGS, AND DISQUALIFICATION FOR PUBLIC
EMPLOYMENT.  D.C. CODE SECS. 11-907, 11-915, 11-927, 11-929 (1961). 
(FN26) 

THE NET, THEREFORE, IS THAT PETITIONER - THEN A BOY OF 16 - WAS BY
STATUTE ENTITLED TO CERTAIN PROCEDURES AND BENEFITS AS A CONSEQUENCE OF
HIS STATUTORY RIGHT TO THE "EXCLUSIVE" JURISDICTION OF THE JUVENILE
COURT.  IN THESE CIRCUMSTANCES, CONSIDERING PARTICULARLY THAT DECISION
AS TO WAIVER OF JURISDICTION AND TRANSFER OF THE MATTER TO THE DISTRICT
COURT WAS POTENTIALLY AS IMPORTANT TO PETITIONER AS THE DIFFERENCE
BETWEEN FIVE YEARS' CONFINEMENT AND A DEATH SENTENCE, WE CONCLUDE THAT,
AS A CONDITION TO A VALID WAIVER ORDER, PETITIONER WAS ENTITLED TO A
HEARING, INCLUDING ACCESS BY HIS COUNSEL TO THE SOCIAL RECORDS AND
PROBATION OR SIMILAR REPORTS WHICH PRESUMABLY ARE CONSIDERED BY THE
COURT, AND TO A STATEMENT OF REASONS FOR THE JUVENILE COURT'S
DECISION.  WE BELIEVE THAT THIS RESULT IS REQUIRED BY THE STATUTE READ
IN THE CONTEXT OF CONSTITUTIONAL PRINCIPLES RELATING TO DUE PROCESS AND
THE ASSISTANCE OF COUNSEL.  (FN27) 

THE COURT OF APPEALS IN THIS CASE RELIED UPON WILHITE V. UNITED
STATES, 108 U.S. APP. D.C.  279, 281 F.2D 642 (1960).  IN THAT CASE,
THE COURT OF APPEALS HELD, FOR PURPOSES OF A DETERMINATION AS TO WAIVER
OF JURISDICTION, THAT NO FORMAL HEARING IS REQUIRED AND THAT THE "FULL
INVESTIGATION" REQUIRED OF THE JUVENILE COURT NEED ONLY BE SUCH "AS IS
NEEDED TO SATISFY THAT COURT  ...  ON THE QUESTION OF WAIVER."  (FN28)
THE AUTHORITY OF WILHITE, HOWEVER, IS SUBSTANTIALLY UNDERMINED BY
OTHER, MORE RECENT, DECISIONS OF THE COURT OF APPEALS. 

IN BLACK V. UNITED STATES, DECIDED BY THE COURT OF APPEALS ON
DECEMBER 8, 1965, THE COURT (FN29) HELD THAT ASSISTANCE OF COUNSEL IN
THE "CRITICALLY IMPORTANT" DETERMINATION OF WAIVER IS ESSENTIAL TO THE
PROPER ADMINISTRATION OF JUVENILE PROCEEDINGS.  BECAUSE THE JUVENILE
WAS NOT ADVISED OF HIS RIGHT TO RETAINED OR APPOINTED COUNSEL, THE
JUDGMENT OF THE DISTRICT COURT, FOLLOWING WAIVER OF JURISDICTION BY THE
JUVENILE COURT, WAS REVERSED.  THE COURT RELIED UPON ITS DECISION IN
SHIOUTAKON V. DISTRICT OF COLUMBIA, 98 U.S. APP. D.C. 371, 236 F.2D 666
(1956), IN WHICH IT HAD HELD THAT EFFECTIVE ASSISTANCE OF COUNSEL IN
JUVENILE COURT PROCEEDINGS IS ESSENTIAL.  SEE ALSO MCDANIEL V. SHEA,
108 U.S. APP. D.C. 15, 278 F.2D 460 (1960).  IN BLACK, THE COURT
REFERRED TO THE CRIMINAL JUSTICE ACT, ENACTED FOUR YEARS AFTER
SHIOUTAKON, IN WHICH CONGRESS PROVIDED FOR THE ASSISTANCE OF COUNSEL
"IN PROCEEDINGS BEFORE THE JUVENILE COURT OF THE DISTRICT OF
COLUMBIA."  D.C. CODE SEC. 2-2202 (1961).  THE COURT HELD THAT "THE
NEED IS EVEN GREATER IN THE ADJUDICATION OF WAIVER THAN IN A CASE LIKE
SHIOUTAKON SINCE IT CONTEMPLATES THE IMPOSITION OF CRIMINAL
SANCTIONS."  122 U.S. APP. D.C., AT 395, 355 F.2D, AT 106. 

IN WATKINS V. UNITED STATES, 119 U.S. APP. D.C. 409, 343 F.2D 278
(1964), DECIDED IN NOVEMBER 1964, THE JUVENILE COURT HAD WAIVED
JURISDICTION OF APPELLANT WHO WAS CHARGED WITH HOUSEBREAKING AND
LARCENY.  IN THE DISTRICT COURT, APPELLANT SOUGHT DISCLOSURE OF THE
SOCIAL RECORD IN ORDER TO ATTACK THE VALIDITY OF THE WAIVER.  THE COURT
OF APPEALS HELD THAT IN A WAIVER PROCEEDING A JUVENILE'S ATTORNEY IS
ENTITLED TO ACCESS TO SUCH RECORDS.  THE COURT OBSERVED THAT: 

"ALL OF THE SOCIAL RECORDS CONCERNING THE CHILD ARE USUALLY RELEVANT
TO WAIVER SINCE THE JUVENILE COURT MUST BE DEEMED TO CONSIDER THE
ENTIRE HISTORY OF THE CHILD IN DETERMINING WAIVER.  THE RELEVANCE OF
PARTICULAR ITEMS MUST BE CONSTRUED GENEROUSLY.  SINCE AN ATTORNEY HAS
NO CERTAIN KNOWLEDGE OF WHAT THE SOCIAL RECORDS CONTAIN, HE CANNOT BE
EXPECTED TO DEMONSTRATE THE RELEVANCE OF PARTICULAR ITEMS IN HIS
REQUEST. 

"THE CHILD'S ATTORNEY MUST BE ADVISED OF THE INFORMATION UPON WHICH
THE JUVENILE COURT RELIED IN ORDER TO ASSIST EFFECTIVELY IN THE
DETERMINATION OF THE WAIVER QUESTION, BY INSISTING UPON THE STATUTORY
COMMAND THAT WAIVER CAN BE ORDERED ONLY AFTER 'FULL INVESTIGATION,' AND
BY GUARDING AGAINST ACTION OF THE JUVENILE COURT BEYOND ITS
DISCRETIONARY AUTHORITY."  119 U.S. APP. D.C., AT 413, 343 F.2D, AT
282. 

THE COURT REMANDED THE RECORD TO THE DISTRICT COURT FOR A
DETERMINATION OF THE EXTENT TO WHICH THE RECORDS SHOULD BE DISCLOSED. 

THE COURT OF APPEALS' DECISION IN THE PRESENT CASE WAS HANDED DOWN ON
OCTOBER 26, 1964, PRIOR TO ITS DECISIONS IN BLACK AND WATKINS.  THE
COURT OF APPEALS ASSUMED THAT SINCE PETITIONER HAD BEEN A PROBATIONER
OF THE JUVENILE COURT FOR TWO YEARS, THAT COURT HAD BEFORE IT
SUFFICIENT EVIDENCE TO MAKE AN INFORMED JUDGMENT.  IT THEREFORE
CONCLUDED THAT THE STATUTORY REQUIREMENT OF A "FULL INVESTIGATION" HAD
BEEN MET.  IT NOTED THE ABSENCE OF "A SPECIFICATION BY THE JUVENILE
COURT JUDGE OF PRECISELY WHY HE CONCLUDED TO WAIVE JURISDICTION."  119
U.S. APP. D.C., AT 384, 343 F.2D.  AT 253.   WHILE IT INDICATED THAT
"IN SOME CASES AT LEAST" A USEFUL PURPOSE MIGHT BE SERVED "BY A
DISCUSSION OF THE REASONS MOTIVATING THE DETERMINATION," ID., AT 384,
343 F.2D, AT 253, N. 6, IT DID NOT CONCLUDE THAT THE ABSENCE THEREOF
INVALIDATED THE WAIVER. 

AS TO THE DENIAL OF ACCESS TO THE SOCIAL RECORDS, THE COURT OF
APPEALS STATED THAT "THE STATUTE IS AMBIGUOUS."  IT SAID THAT
PETITIONER'S CLAIM, IN ESSENCE, IS "THAT COUNSEL SHOULD HAVE THE
OPPORTUNITY TO CHALLENGE THEM, PRESUMABLY IN A MANNER AKIN TO CROSS
EXAMINATION."  ID., AT 389, 343 F.2D, AT 258.  IT HELD, HOWEVER, THAT
THIS IS "THE KIND OF ADVERSARIAL TACTICS WHICH THE SYSTEM IS DESIGNED
TO AVOID."  IT CHARACTERIZED COUNSEL'S PROPER FUNCTION AS BEING MERELY
THAT OF BRINGING FORWARD AFFIRMATIVE INFORMATION WHICH MIGHT HELP THE
COURT.  HIS FUNCTION, THE COURT OF APPEALS SAID, "IS NOT TO DENIGRATE
THE STAFF'S SUBMISSIONS AND RECOMMENDATIONS."  IBID.  ACCORDINGLY, IT
HELD THAT THE JUVENILE COURT HAD NOT ABUSED ITS DISCRETION IN DENYING
ACCESS TO THE SOCIAL RECORDS. 

WE ARE OF THE OPINION THAT THE COURT OF APPEALS MISCONCEIVED THE
BASIC ISSUE AND THE UNDERLYING VALUES IN THIS CASE.  IT DID NOTE, AS
ANOTHER PANEL OF THE SAME COURT DID A FEW MONTHS LATER IN BLACK AND
WATKINS, THAT THE DETERMINATION OF WHETHER TO TRANSFER A CHILD FROM THE
STATUTORY STRUCTURE OF THE JUVENILE COURT TO THE CRIMINAL PROCESSES OF
THE DISTRICT COURT IS "CRITICALLY IMPORTANT."  WE HOLD THAT IT IS,
INDEED, A "CRITICALLY IMPORTANT" PROCEEDING.  THE JUVENILE COURT ACT
CONFERS UPON THE CHILD A RIGHT TO AVAIL HIMSELF OF THAT COURT'S
"EXCLUSIVE" JURISDICTION.  AS THE COURT OF APPEALS HAS SAID, "IT IS
IMPLICIT IN THE JUVENILE COURT SCHEME THAT NON-CRIMINAL TREATMENT IS TO
BE THE RULE - AND THE ADULT CRIMINAL TREATMENT, THE EXCEPTION WHICH
MUST BE GOVERNED BY THE PARTICULAR FACTORS OF INDIVIDUAL CASES." 
HARLING V. UNITED STATES, 111 U.S. APP. D.C. 174, 177-178, 295 F.2D
161, 164-165 (1961). 

MEANINGFUL REVIEW REQUIRES THAT THE REVIEWING COURT SHOULD REVIEW. 
IT SHOULD NOT BE REMITTED TO ASSUMPTIONS.  IT MUST HAVE BEFORE IT A
STATEMENT OF THE REASONS MOTIVATING THE WAIVER INCLUDING, OF COURSE, A
STATEMENT OF THE RELEVANT FACTS.  IT MAY NOT "ASSUME" THAT THERE ARE
ADEQUATE REASONS, NOR MAY IT MERELY ASSUME THAT "FULL INVESTIGATION"
HAS BEEN MADE.  ACCORDINGLY, WE HOLD THAT IT IS INCUMBENT UPON THE
JUVENILE COURT TO ACCOMPANY ITS WAIVER ORDER WITH A STATEMENT OF THE
REASONS OR CONSIDERATIONS THEREFOR.  WE DO NOT READ THE STATUTE AS
REQUIRING THAT THIS STATEMENT MUST BE FORMAL OR THAT IT SHOULD
NECESSARILY INCLUDE CONVENTIONAL FINDINGS OF FACT.  BUT THE STATEMENT
SHOULD BE SUFFICIENT TO DEMONSTRATE THAT THE STATUTORY REQUIREMENT OF
"FULL INVESTIGATION" HAS BEEN MET; AND THAT THE QUESTION HAS RECEIVED
THE CAREFUL CONSIDERATION OF THE JUVENILE COURT; AND IT MUST SET FORTH
THE BASIS FOR THE ORDER WITH SUFFICIENT SPECIFICITY TO PERMIT
MEANINGFUL REVIEW.    CORRESPONDINGLY, WE CONCLUDE THAT AN OPPORTUNITY
FOR A HEARING WHICH MAY BE INFORMAL, MUST BE GIVEN THE CHILD PRIOR TO
ENTRY OF A WAIVER ORDER.  UNDER BLACK, THE CHILD IS ENTITLED TO COUNSEL
IN CONNECTION WITH A WAIVER PROCEEDING, AND UNDER WATKINS, COUNSEL IS
ENTITLED TO SEE THE CHILD'S SOCIAL RECORDS.  THESE RIGHTS ARE
MEANINGLESS - AN ILLUSION, A MOCKERY - UNLESS COUNSEL IS GIVEN AN
OPPORTUNITY TO FUNCTION. 

THE RIGHT TO REPRESENTATION BY COUNSEL IS NOT A FORMALITY.  IT IS NOT
A GRUDGING GESTURE TO A RITUALISTIC REQUIREMENT.  IT IS OF THE ESSENCE
OF JUSTICE.  APPOINTMENT OF COUNSEL WITHOUT AFFORDING AN OPPORTUNITY
FOR HEARING ON A "CRITICALLY IMPORTANT" DECISION IS TANTAMOUNT TO
DENIAL OF COUNSEL.  THERE IS NO JUSTIFICATION FOR THE FAILURE OF THE
JUVENILE COURT TO RULE ON THE MOTION FOR HEARING FILED BY PETITIONER'S
COUNSEL, AND IT WAS ERROR TO FAIL TO GRANT A HEARING. 

WE DO NOT MEAN BY THIS TO INDICATE THAT THE HEARING TO BE HELD MUST
CONFORM WITH ALL OF THE REQUIREMENTS OF A CRIMINAL TRIAL OR EVEN OF THE
USUAL ADMINISTRATIVE HEARING; BUT WE DO HOLD THAT THE HEARING MUST
MEASURE UP TO THE ESSENTIALS OF DUE PROCESS AND FAIR TREATMENT.  PEE V.
UNITED STATES, 107 U.S. APP. D.C. 47, 50, 274 F.2D 556, 559 (1959). 

WITH RESPECT TO ACCESS BY THE CHILD'S COUNSEL TO THE SOCIAL RECORDS
OF THE CHILD, WE DEEM IT OBVIOUS THAT SINCE THESE ARE TO BE CONSIDERED
BY THE JUVENILE COURT IN MAKING ITS DECISION TO WAIVE, THEY MUST BE
MADE AVAILABLE TO THE CHILD'S COUNSEL.  THIS IS WHAT THE COURT OF
APPEALS ITSELF HELD IN WATKINS.  THERE IS NO DOUBT AS TO THE STATUTORY
BASIS FOR THIS CONCLUSION, AS THE COURT OF APPEALS POINTED OUT IN
WATKINS.  WE CANNOT AGREE WITH THE COURT OF APPEALS IN THE PRESENT CASE
THAT THE STATUTE IS "AMBIGUOUS."  THE STATUTE EXPRESSLY PROVIDES THAT
THE RECORD SHALL BE WITHHELD FROM "INDISCRIMINATE" PUBLIC INSPECTION,
"EXCEPT THAT SUCH RECORDS OR PARTS THEREOF SHALL BE MADE AVAILABLE BY
RULE OF COURT OR SPECIAL ORDER OF COURT TO SUCH PERSONS  ...  AS HAVE A
LEGITIMATE INTEREST IN THE PROTECTION  ...  OF THE CHILD  ...  ."  D.C.
CODE SEC. 11-929(B) (1961), NOW SEC. 11-1586(B) (SUPP. IV, 1965). 
(FN30)  THE COURT OF APPEALS HAS HELD IN BLACK, AND WE AGREE, THAT
COUNSEL MUST BE AFFORDED TO THE CHILD IN WAIVER PROCEEDINGS.  COUNSEL,
THEREFORE, HAVE A "LEGITIMATE INTEREST" IN THE PROTECTION OF THE CHILD,
AND MUST BE AFFORDED ACCESS TO THESE RECORDS.  (FN31) 

WE DO NOT AGREE WITH THE COURT OF APPEALS' STATEMENT, ATTEMPTING TO
JUSTIFY DENIAL OF ACCESS TO THESE RECORDS, THAT COUNSEL'S ROLE IS
LIMITED TO PRESENTING "TO THE COURT ANYTHING ON BEHALF OF THE CHILD
WHICH MIGHT HELP THE COURT IN ARRIVING AT A DECISION; IT IS NOT TO
DENIGRATE THE STAFF'S SUBMISSIONS AND RECOMMENDATIONS."  ON THE
CONTRARY, IF THE STAFF'S SUBMISSIONS INCLUDE MATERIALS WHICH ARE
SUSCEPTIBLE TO CHALLENGE OR IMPEACHMENT, IT IS PRECISELY THE ROLE OF
COUNSEL TO "DENIGRATE" SUCH MATTER.  THERE IS NO IRREBUTTABLE
PRESUMPTION OF ACCURACY ATTACHED TO STAFF REPORTS.  IF A DECISION ON
WAIVER IS "CRITICALLY IMPORTANT" IT IS EQUALLY OF "CRITICAL IMPORTANCE"
THAT THE MATERIAL SUBMITTED TO THE JUDGE - WHICH IS PROTECTED BY THE
STATUTE ONLY AGAINST "INDISCRIMINATE" INSPECTION - BE SUBJECTED, WITHIN
REASONABLE LIMITS HAVING REGARD TO THE THEORY OF THE JUVENILE COURT
ACT, TO EXAMINATION, CRITICISM AND REFUTATION.  WHILE THE JUVENILE
COURT JUDGE MAY, OF COURSE, RECEIVE EX PARTE ANALYSES AND
RECOMMENDATIONS FROM HIS STAFF, HE MAY NOT, FOR PURPOSES OF A DECISION
ON WAIVER, RECEIVE AND RELY UPON SECRET INFORMATION, WHETHER EMANATING
FROM HIS STAFF OR OTHERWISE.  THE JUVENILE COURT IS GOVERNED IN THIS
RESPECT BY THE ESTABLISHED PRINCIPLES WHICH CONTROL COURTS AND QUASI
JUDICIAL AGENCIES OF THE GOVERNMENT. 

FOR THE REASONS STATED, WE CONCLUDE THAT THE COURT OF APPEALS AND THE
DISTRICT COURT ERRED IN SUSTAINING THE VALIDITY OF THE WAIVER BY THE
JUVENILE COURT.  THE GOVERNMENT URGES THAT ANY ERROR COMMITTED BY THE
JUVENILE COURT WAS CURED BY THE PROCEEDINGS BEFORE THE DISTRICT COURT. 
IT IS TRUE THAT THE DISTRICT COURT CONSIDERED AND DENIED A MOTION TO
DISMISS ON THE GROUNDS OF THE INVALIDITY OF THE WAIVER ORDER OF THE
JUVENILE COURT, AND THAT IT CONSIDERED AND DENIED A MOTION THAT IT
SHOULD ITSELF, AS AUTHORIZED BY STATUTE, PROCEED IN THIS CASE TO
"EXERCISE THE POWERS CONFERRED UPON THE JUVENILE COURT."  D.C. CODE
SEC. 11-914 (1961), NOW SEC. 11-1553 (SUPP. IV, 1965).  BUT WE AGREE
WITH THE COURT OF APPEALS IN BLACK, THAT "THE WAIVER QUESTION WAS
PRIMARILY AND INITIALLY ONE FOR THE JUVENILE COURT TO DECIDE AND ITS
FAILURE TO DO SO IN A VALID MANNER CANNOT BE SAID TO BE HARMLESS
ERROR.  IT IS THE JUVENILE COURT, NOT THE DISTRICT COURT, WHICH HAS THE
FACILITIES, PERSONNEL AND EXPERTISE FOR A PROPER DETERMINATION OF THE
WAIVER ISSUE."  122 U.S. APP. D.C., AT 396, 355 F.2D, AT 107.  (FN32) 

ORDINARILY WE WOULD REVERSE THE COURT OF APPEALS AND DIRECT THE
DISTRICT COURT TO REMAND THE CASE TO THE JUVENILE COURT FOR A NEW
DETERMINATION OF WAIVER.  IF ON REMAND THE DECISION WERE AGAINST
WAIVER, THE INDICTMENT IN THE DISTRICT COURT WOULD BE DISMISSED.  SEE
BLACK V. UNITED STATES, SUPRA.  HOWEVER, PETITIONER HAS NOW PASSED THE
AGE OF 21 AND THE JUVENILE COURT CAN NO LONGER EXERCISE JURISDICTION
OVER HIM.  IN VIEW OF THE UNAVAILABILITY OF A REDETERMINATION OF THE
WAIVER QUESTION BY THE JUVENILE COURT, IT IS URGED BY PETITIONER THAT
THE CONVICTION SHOULD BE VACATED AND THE INDICTMENT DISMISSED.  IN THE
CIRCUMSTANCES OF THIS CASE, AND IN LIGHT OF THE REMEDY WHICH THE COURT
OF APPEALS FASHIONED IN BLACK, SUPRA, WE DO NOT CONSIDER IT APPROPRIATE
TO GRANT THIS DRASTIC RELIEF.  (FN33)  ACCORDINGLY, WE VACATE THE ORDER
OF THE COURT OF APPEALS AND THE JUDGMENT OF THE DISTRICT COURT AND
REMAND THE CASE TO THE DISTRICT COURT FOR A HEARING DE NOVO ON WAIVER,
CONSISTENT WITH THIS OPINION.  (FN34)  IF THAT COURT FINDS THAT WAIVER
WAS INAPPROPRIATE, PETITIONER'S CONVICTION MUST BE VACATED.  IF,
HOWEVER, IT FINDS THAT THE WAIVER ORDER WAS PROPER WHEN ORIGINALLY
MADE, THE DISTRICT COURT MAY PROCEED, AFTER CONSIDERATION OF SUCH
MOTIONS AS COUNSEL MAY MAKE AND SUCH FURTHER PROCEEDINGS, IF ANY, AS
MAY BE WARRANTED, TO ENTER AN APPROPRIATE JUDGMENT.  CF. BLACK V.
UNITED STATES, SUPRA.  REVERSED AND REMANDED. 

FN1  THERE IS NO INDICATION IN THE FILE THAT THE POLICE COMPLIED WITH
THE REQUIREMENT OF THE DISTRICT CODE THAT A CHILD TAKEN INTO CUSTODY,
UNLESS RELEASED TO HIS PARENT, GUARDIAN OR CUSTODIAN, "SHALL BE PLACED
IN THE CUSTODY OF A PROBATION OFFICER OR OTHER PERSON DESIGNATED BY THE
COURT, OR TAKEN IMMEDIATELY TO THE COURT OR TO A PLACE OF DETENTION
PROVIDED BY THE BOARD OF PUBLIC WELFARE, AND THE OFFICER TAKING HIM
SHALL IMMEDIATELY NOTIFY THE COURT AND SHALL FILE A PETITION WHEN
DIRECTED TO DO SO BY THE COURT."  D.C. CODE SEC. 11-912 (1961), NOW
SEC. 16-2306 (SUPP. IV, 1965). 

FN2  THE ELICITED STATEMENTS WERE NOT USED IN THE SUBSEQUENT TRIAL
BEFORE THE UNITED STATES DISTRICT COURT.  SINCE THE STATEMENTS WERE
MADE WHILE PETITIONER WAS SUBJECT TO THE JURISDICTION OF THE JUVENILE
COURT, THEY WERE INADMISSIBLE IN A SUBSEQUENT CRIMINAL PROSECUTION
UNDER THE RULE OF HARLING V. UNITED STATES, 111 U.S. APP. D.C. 174, 295
F.2D 161 (1961). 

FN3  IN THE CASE OF ADULTS, ARRAIGNMENT BEFORE A MAGISTRATE FOR
DETERMINATION OF PROBABLE CAUSE AND ADVICE TO THE ARRESTED PERSON AS TO
HIS RIGHTS, ETC., ARE PROVIDED BY LAW AND ARE REGARDED AS FUNDAMENTAL. 
CF. FED. RULES CRIM. PROC. 5(A), (B); MALLORY V. UNITED STATES, 354
U.S. 449.  IN HARLING V. UNITED STATES, SUPRA, THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA HAS STATED THE BASIS FOR THIS DISTINCTION
BETWEEN JUVENILES AND ADULTS AS FOLLOWS: 

"IT IS, OF COURSE, BECAUSE CHILDREN ARE, GENERALLY SPEAKING, EXEMPT
FROM CRIMINAL PENALTIES THAT SAFEGUARDS OF THE CRIMINAL LAW, SUCH AS
RULE 5 AND THE EXCLUSIONARY MALLORY RULE, HAVE NO GENERAL APPLICATION
IN JUVENILE PROCEEDINGS."  111 U.S. APP. D.C., AT 176, 295 F.2D, AT
163. 

IN EDWARDS V. UNITED STATES, 117 U.S. APP. D.C. 383, 384, 330 F.2D
849, 850 (1964), IT WAS SAID THAT:  "  ...  SPECIAL PRACTICES  ...
FOLLOW THE APPREHENSION OF A JUVENILE.  HE MAY BE HELD IN CUSTODY BY
THE JUVENILE AUTHORITIES - AND IS AVAILABLE TO INVESTIGATING OFFICERS -
FOR FIVE DAYS BEFORE ANY FORMAL ACTION NEED BE TAKEN.  THERE IS NO DUTY
TO TAKE HIM BEFORE A MAGISTRATE, AND NO RESPONSIBILITY TO INFORM HIM OF
HIS RIGHTS.  HE IS NOT BOOKED.  THE STATUTORY INTENT IS TO ESTABLISH A
NON-PUNITIVE, NON-CRIMINAL ATMOSPHERE." 

WE INDICATE NO VIEW AS TO THE LEGALITY OF THESE PRACTICES.  CF.
HARLING V. UNITED STATES, SUPRA, 111 U.S. APP. D.C., AT 176, 295 F.2D,
AT 163, N. 12. 

FN4  AT THE TIME OF THESE EVENTS, THERE WAS IN EFFECT POLICY
MEMORANDUM NO. 7 OF NOVEMBER 30, 1959, PROMULGATED BY THE JUDGE OF THE
JUVENILE COURT TO SET FORTH THE CRITERIA TO GOVERN DISPOSITION OF
WAIVER REQUESTS.  IT IS SET FORTH IN THE APPENDIX.  THIS MEMORANDUM HAS
SINCE BEEN RESCINDED.  SEE UNITED STATES V. CAVINESS, 239 F. SUPP. 545,
550 (D.C.D.C. 1965). 

FN5  IT SHOULD BE NOTED THAT AT THIS TIME THE STATUTE PROVIDED FOR
ONLY ONE JUVENILE COURT JUDGE.  CONGRESSIONAL HEARINGS AND REPORTS
ATTEST THE IMPOSSIBILITY OF THE BURDEN WHICH HE WAS SUPPOSED TO CARRY. 
SEE AMENDING THE JUVENILE COURT ACT OF THE DISTRICT OF COLUMBIA,
HEARINGS BEFORE SUBCOMMITTEE NO. 2 OF THE HOUSE COMMITTEE ON THE
DISTRICT OF COLUMBIA, 87TH CONG., 1ST SESS. (1961); JUVENILE
DELINQUENCY, HEARINGS BEFORE THE SUBCOMMITTEE TO INVESTIGATE JUVENILE
DELINQUENCY OF THE SENATE COMMITTEE ON THE JUDICIARY, 86TH CONG., 1ST
SESS. (1959-1960); ADDITIONAL JUDGES FOR JUVENILE COURT, HEARING BEFORE
THE HOUSE COMMITTEE ON THE DISTRICT OF COLUMBIA, 86TH CONG., 1ST SESS.
(1959); H.R. REP. NO. 1041, 87TH CONG., 1ST SESS. (1961); S. REP. NO.
841, 87TH CONG., 1ST SESS. (1961); S. REP. NO. 116, 86TH CONG., 1ST
SESS. (1959).  THE STATUTE WAS AMENDED IN 1962 TO PROVIDE FOR THREE
JUDGES FOR THE COURT.  76 STAT. 21; D.C. CODE SEC. 11-1502 (SUPP. IV,
1965). 

FN6  D.C. CODE SEC. 11-914 (1961), NOW SEC 11-1553 (SUPP. IV, 1965). 

FN7  ON FEBRUARY 5, 1963, THE MOTION TO THE DISTRICT COURT TO
CONSTITUTE ITSELF A JUVENILE COURT WAS DENIED.  THE MOTION WAS RENEWED
ORALLY AND DENIED ON FEBRUARY 8, 1963, AFTER THE DISTRICT COURT'S
DECISION THAT THE INDICTMENT SHOULD NOT BE DISMISSED. 

FN8  THE DISTRICT COURT HAD BEFORE IT EXTENSIVE INFORMATION AS TO
PETITIONER'S MENTAL CONDITION, BEARING UPON BOTH COMPETENCE TO STAND
TRIAL AND THE DEFENSE OF INSANITY.  THE COURT HAD OBTAINED THE "SOCIAL
SERVICE" FILE FROM THE JUVENILE COURT AND HAD MADE IT AVAILABLE TO
PETITIONER'S COUNSEL.  ON OCTOBER 13, 1961, THE DISTRICT COURT HAD
GRANTED PETITIONER'S MOTION OF OCTOBER 6 FOR COMMITMENT TO THE
PSYCHIATRIC DIVISION OF THE GENERAL HOSPITAL FOR 60 DAYS.  ON DECEMBER
20, 1961, THE HOSPITAL REPORTED THAT "IT IS THE CONSENSUS OF THE STAFF
THAT MORRIS IS EMOTIONALLY ILL AND SEVERELY SO  ... WE FEEL THAT HE IS
INCOMPETENT TO STAND TRIAL AND TO PARTICIPATE IN A MATURE WAY IN HIS
OWN DEFENSE.   HIS ILLNESS HAS INTERFERED WITH HIS JUDGMENT AND
REASONING ABILITY  ...  ."  THE PROSECUTOR OPPOSED A FINDING OF
INCOMPETENCE TO STAND TRIAL, AND AT THE PROSECUTOR'S REQUEST, THE
DISTRICT COURT REFERRED PETITIONER TO ST. ELIZABETHS HOSPITAL FOR
PSYCHIATRIC OBSERVATION.  ACCORDING TO A LETTER FROM THE SUPERINTENDENT
OF ST. ELIZABETHS OF APRIL 5, 1962, THE HOSPITAL'S STAFF FOUND THAT
PETITIONER WAS "SUFFERING FROM MENTAL DISEASE AT THE PRESENT TIME,
SCHIZOPHRENIC REACTION, CHRONIC UNDIFFERENTIATED TYPE," THAT HE HAD
BEEN SUFFERING FROM THIS DISEASE AT THE TIME OF THE CHARGED OFFENSES,
AND THAT "IF COMMITTED BY HIM THOSE CRIMINAL ACTS WERE THE PRODUCT OF
THIS DISEASE."  THEY STATED, HOWEVER, THAT PETITIONER WAS "MENTALLY
COMPETENT TO UNDERSTAND THE NATURE OF THE PROCEEDINGS AGAINST HIM AND
TO CONSULT PROPERLY WITH COUNSEL IN HIS OWN DEFENSE." 

FN9  D.C. CODE SEC. 24-301 (1961). 

FN10  THE BASIS FOR THIS DISTINCTION - THAT PETITIONER WAS "SANE" FOR
PURPOSES OF THE HOUSEBREAKING AND ROBBERY BUT "INSANE" FOR THE PURPOSES
OF THE RAPE - APPARENTLY WAS THE HYPOTHESIS, FOR WHICH THERE IS SOME
SUPPORT IN THE RECORD, THAT THE JURY MIGHT FIND THAT THE ROBBERIES HAD
ANTECEDED THE RAPES, AND IN THAT EVENT, IT MIGHT CONCLUDE THAT THE
HOUSEBREAKINGS AND ROBBERIES WERE NOT THE PRODUCTS OF HIS MENTAL
DISEASE OR DEFECT, WHILE THE RAPES WERE PRODUCED THEREBY. 

FN11  PETITIONER FILED A PETITION FOR REHEARING EN BANC, BUT
SUBSEQUENTLY MOVED TO WITHDRAW THE PETITION IN ORDER TO PROSECUTE HIS
PETITION FOR CERTIORARI TO THIS COURT.  THE COURT OF APPEALS PERMITTED
WITHDRAWAL.  CHIEF JUDGE BAZELON FILED A DISSENTING OPINION IN WHICH
CIRCUIT JUDGE WRIGHT JOINED.  119 U.S. APP. D.C., AT 395, 343 F.2D, AT
264 (1964). 

FN12  CF. HARLING V. UNITED STATES, 111 U.S. APP. D.C. 174, 295 F.2D
161 (1961); BYNUM V. UNITED STATES, 104 U.S. APP. D.C. 368, 262 F.2D
465 (1958).  IT IS NOT CLEAR FROM THE RECORD WHETHER THE FINGERPRINTS
USED WERE TAKEN DURING THE DETENTION PERIOD OR WERE THOSE TAKEN WHILE
PETITIONER WAS IN CUSTODY IN 1959, NOR IS IT CLEAR THAT PETITIONER'S
COUNSEL OBJECTED TO THE USE OF THE FINGERPRINTS.    FN13  PETITIONER
ALSO URGES THAT THE DISTRICT COURT ERRED IN THE FOLLOWING RESPECTS: 

(1)  IT GAVE THE JURY A VERSION OF THE "ALLEN" CHARGE.  SEE ALLEN V.
UNITED STATES, 164 U.S. 492. 

(2)  IT FAILED TO GIVE AN ADEQUATE AND FAIR COMPETENCY HEARING. 

(3)  IT DENIED THE MOTION TO CONSTITUTE ITSELF A JUVENILE COURT
PURSUANT TO D. C. CODE SEC. 11-914 (1961), NOW SEC. 11-1553.  (SUPP.
IV, 1965.) 

(4)  IT SHOULD HAVE GRANTED PETITIONER'S MOTION FOR ACQUITTAL ON ALL
COUNTS, N.O.V., ON THE GROUNDS OF INSANITY. 

WE DECIDE NONE OF THESE CLAIMS.    FN14 THE STATUTE IS SET OUT AT PP.
547-548, SUPRA. 

FN15  "WHAT IS REQUIRED BEFORE A WAIVER IS, AS WE HAVE SAID, 'FULL
INVESTIGATION'  ...  .  IT PREVENTS THE WAIVER OF JURISDICTION AS A
MATTER OF ROUTINE FOR THE PURPOSE OF EASING THE DOCKET.  IT PREVENTS
ROUTINE WAIVER IN CERTAIN CLASSES OF ALLEGED CRIMES.  IT REQUIRES A
JUDGMENT IN EACH CASE BASED ON 'AN INQUIRY NOT ONLY INTO THE FACTS OF
THE ALLEGED OFFENSE BUT ALSO INTO THE QUESTION WHETHER THE PARENS
PATRIAE PLAN OF PROCEDURE IS DESIRABLE AND PROPER IN THE PARTICULAR
CASE.'  PEE V. UNITED STATES, 107 U.S. APP. D.C. 47, 50; 274 F.2D 556,
559 (1959)."  GREEN V. UNITED STATES, SUPRA, AT 350, 308 F.2D, AT 305. 

FN16  SEE WATKINS V. UNITED STATES, 119 U.S. APP. D.C. 409, 413, 343
F.2D 278, 282 (1964); BLACK V. UNITED STATES, 122 U.S. APP. D.C. 393,
355 F.2D 104 (1965). 

FN17  D.C. CODE SEC. 22-2801 (1961) FIXES THE PUNISHMENT FOR RAPE AT
30 YEARS, OR DEATH IF THE JURY SO PROVIDES IN ITS VERDICT.  THE MAXIMUM
PUNISHMENT FOR HOUSEBREAKING IS 15 YEARS, D.C.  CODE SEC. 22-1801
(1961); FOR ROBBERY IT IS ALSO 15 YEARS, D.C. CODE SEC. 22-2901
(1961). 

FN18  THE JURISDICTION OF THE JUVENILE COURT OVER A CHILD CEASES WHEN
HE BECOMES 21.  D.C.  CODE SEC. 11-907 (1961), NOW SEC. 11-1551 (SUPP.
IV, 1965). 

FN19  ALL STATES HAVE JUVENILE COURT SYSTEMS.  A STUDY OF THE ACTUAL
OPERATION OF THESE SYSTEMS IS CONTAINED IN NOTE, JUVENILE DELINQUENTS:
THE POLICE, STATE COURTS, AND INDIVIDUALIZED JUSTICE, 79 HARV. L. REV.
775 (1966). 

FN20  SEE HANDLER, THE JUVENILE COURT AND THE ADVERSARY SYSTEM:
PROBLEMS OF FUNCTION AND FORM, 1965 WIS. L. REV. 7. 

FN21  PEE V. UNITED STATES, 107 U.S. APP. D.C. 47, 274 F.2D 556
(1959). 

FN22  SEE PEE V. UNITED STATES, SUPRA, AT 54, 274 F.2D, AT 563;
PAULSEN, FAIRNESS TO THE JUVENILE OFFENDER, 41 MINN. L. REV. 547
(1957). 

FN23  CF. HARLING V. UNITED STATES, 111 U.S. APP. D.C. 174, 177, 295
F.2D 161, 164 (1961). 

FN24  SEE HANDLER, OP. CIT. SUPRA, NOTE 20; NOTE, SUPRA, NOTE 19;
MATERIALS CITED IN NOTE 5, SUPRA. 

FN25  SEE BRIEF OF AMICUS CURIAE. 

FN26  THESE ARE NOW, WITHOUT SUBSTANTIAL CHANGES, SECS. 11-1551, 16
2307, 16-2308, 16-2313, 11-1586 (SUPP. IV, 1965). 

FN27  WHILE WE "WILL NOT ORDINARILY REVIEW DECISIONS OF THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT WHICH ARE
BASED UPON STATUTES  ...  LIMITED TO THE DISTRICT  ... ," DEL VECCHIO
V. BOWERS, 296 U.S. 280, 285, THE POSITION OF THAT COURT, AS WE DISCUSS
INFRA, IS SELF-CONTRADICTORY.  NOR HAVE WE DEFERRED TO DECISIONS ON
LOCAL LAW WHERE TO DO SO WOULD REQUIRE ADJUDICATION OF DIFFICULT
CONSTITUTIONAL QUESTIONS.  SEE DISTRICT OF COLUMBIA V. LITTLE, 339 U.S.
1. 

FN28  THE PANEL WAS COMPOSED OF CIRCUIT JUDGES MILLER, FAHY AND
BURGER.  JUDGE FAHY CONCURRED IN THE RESULT.  IT APPEARS THAT THE
ATTACK ON THE REGULARITY OF THE WAIVER OF JURISDICTION WAS MADE 17
YEARS AFTER THE EVENT, AND THAT NO OBJECTION TO WAIVER HAD BEEN MADE IN
THE DISTRICT COURT. 

FN29  BAZELON, C.J., AND FAHY AND LEVENTHAL, JJ. 

FN30  UNDER THE STATUTE, THE JUVENILE COURT HAS POWER BY RULE OR
ORDER, TO SUBJECT THE EXAMINATION OF THE SOCIAL RECORDS TO CONDITIONS
WHICH WILL PREVENT MISUSE OF THE INFORMATION.  VIOLATION OF ANY SUCH
RULE OR ORDER, OR DISCLOSURE OF THE INFORMATION "EXCEPT FOR PURPOSES
FOR WHICH  ...  RELEASED," IS A MISDEMEANOR.  D.C. CODE SEC. 11-929
(1961), NOW, WITHOUT SUBSTANTIAL CHANGE, SEC. 11-1586 (SUPP. IV,
1965). 

FN31  IN WATKINS, THE COURT OF APPEALS SEEMS TO HAVE PERMITTED
WITHHOLDING OF SOME PORTIONS OF THE SOCIAL RECORD FROM EXAMINATION BY
PETITIONER'S COUNSEL.  TO THE EXTENT THAT WATKINS IS INCONSISTENT WITH
THE STANDARD WHICH WE STATE, IT CANNOT BE CONSIDERED AS CONTROLLING. 

FN32  IT ALSO APPEARS THAT THE DISTRICT COURT REQUESTED AND OBTAINED
THE SOCIAL SERVICE FILE AND THE PROBATION STAFF'S REPORT OF SEPTEMBER
8, 1961, AND THAT THESE WERE MADE AVAILABLE TO PETITIONER'S COUNSEL. 
THIS DID NOT CURE THE ERROR OF THE JUVENILE COURT.  PERHAPS THE POINT
OF IT IS THAT IT AGAIN ILLUSTRATES THE MAXIM THAT WHILE NONDISCLOSURE
MAY CONTRIBUTE TO THE COMFORT OF THE STAFF, DISCLOSURE DOES NOT CAUSE
HEAVEN TO FALL. 

FN33  PETITIONER IS IN ST. ELIZABETHS HOSPITAL FOR PSYCHIATRIC
TREATMENT AS A RESULT OF THE JURY VERDICT ON THE RAPE CHARGES. 

FN34  WE DO NOT DEEM IT APPROPRIATE MERELY TO VACATE THE JUDGMENT AND
REMAND TO THE COURT OF APPEALS FOR RECONSIDERATION OF ITS PRESENT
DECISION IN LIGHT OF ITS SUBSEQUENT DECISIONS IN WATKINS AND BLACK,
SUPRA.  THOSE CASES WERE DECIDED BY DIFFERENT PANELS OF THE COURT OF
APPEALS FROM THAT WHICH DECIDED THE PRESENT CASE, AND IN VIEW OF OUR
GRANT OF CERTIORARI AND OF THE IMPORTANCE OF THE ISSUE, WE CONSIDER IT
NECESSARY TO RESOLVE THE QUESTION PRESENTED INSTEAD OF LEAVING IT OPEN
FOR FURTHER CONSIDERATION BY THE COURT OF APPEALS. 

                 APPENDIX TO OPINION OF THE COURT. 

                  POLICY MEMORANDUM NO. 7, NOVEMBER 30, 1959. 

THE AUTHORITY OF THE JUDGE OF THE JUVENILE COURT OF THE DISTRICT OF
COLUMBIA TO WAIVE OR TRANSFER JURISDICTION TO THE U.S. DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA IS CONTAINED IN THE JUVENILE COURT ACT
(SEC. 11-914 D.C. CODE, 1951 ED.).  THIS SECTION PERMITS THE JUDGE TO
WAIVE JURISDICTION "AFTER FULL INVESTIGATION" IN THE CASE OF ANY CHILD
"SIXTEEN YEARS OF AGE OR OLDER WHO IS CHARGED WITH AN OFFENSE WHICH
WOULD AMOUNT TO A FELONY IN THE CASE OF AN ADULT, OR ANY CHILD CHARGED
WITH AN OFFENSE WHICH IF COMMITTED BY AN ADULT IS PUNISHABLE BY DEATH
OR LIFE IMPRISONMENT." 

THE STATUTE SETS FORTH NO SPECIFIC STANDARDS FOR THE EXERCISE OF THIS
IMPORTANT DISCRETIONARY ACT, BUT LEAVES THE FORMULATION OF SUCH
CRITERIA TO THE JUDGE.  A KNOWLEDGE OF THE JUDGE'S CRITERIA IS
IMPORTANT TO THE CHILD, HIS PARENTS, HIS ATTORNEY, TO THE JUDGES OF THE
U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, TO THE UNITED STATES
ATTORNEY AND HIS ASSISTANTS, AND TO THE METROPOLITAN POLICE DEPARTMENT,
AS WELL AS TO THE STAFF OF THIS COURT, ESPECIALLY THE JUVENILE INTAKE

THEREFORE, THE JUDGE HAS CONSULTED WITH THE CHIEF JUDGE AND OTHER
JUDGES OF THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, WITH
THE UNITED STATES ATTORNEY, WITH REPRESENTATIVES OF THE BAR, AND WITH
OTHER GROUPS CONCERNED AND HAS FORMULATED THE FOLLOWING CRITERIA AND
PRINCIPLES CONCERNING WAIVER OF JURISDICTION WHICH ARE CONSISTENT WITH
THE BASIC AIMS AND PURPOSE OF THE JUVENILE COURT ACT. 

AN OFFENSE FALLING WITHIN THE STATUTORY LIMITATIONS (SET FORTH ABOVE)
WILL BE WAIVED IF IT HAS PROSECUTIVE MERIT AND IF IT IS HEINOUS OR OF
AN AGGRAVATED CHARACTER, OR - EVEN THOUGH LESS SERIOUS - IF IT
REPRESENTS A PATTERN OF REPEATED OFFENSES WHICH INDICATE THAT THE
JUVENILE MAY BE BEYOND REHABILITATION UNDER JUVENILE COURT PROCEDURES,
OR IF THE PUBLIC NEEDS THE PROTECTION AFFORDED BY SUCH ACTION. 

THE DETERMINATIVE FACTORS WHICH WILL BE CONSIDERED BY THE JUDGE IN
DECIDING WHETHER THE JUVENILE COURT'S JURISDICTION OVER SUCH OFFENSES
WILL BE WAIVED ARE THE FOLLOWING: 

1.  THE SERIOUSNESS OF THE ALLEGED OFFENSE TO THE COMMUNITY AND
WHETHER THE PROTECTION OF THE COMMUNITY REQUIRES WAIVER. 

2.  WHETHER THE ALLEGED OFFENSE WAS COMMITTED IN AN AGGRESSIVE,
VIOLENT, PREMEDITATED OR WILLFUL MANNER. 

3.  WHETHER THE ALLEGED OFFENSE WAS AGAINST PERSONS OR AGAINST
PROPERTY, GREATER WEIGHT BEING GIVEN TO OFFENSES AGAINST PERSONS
ESPECIALLY IF PERSONAL INJURY RESULTED. 

4.  THE PROSECUTIVE MERIT OF THE COMPLAINT, I.E., WHETHER THERE IS
EVIDENCE UPON WHICH A GRAND JURY MAY BE EXPECTED TO RETURN AN
INDICTMENT (TO BE DETERMINED BY CONSULTATION WITH THE UNITED STATES
ATTORNEY). 

5.  THE DESIRABILITY OF TRIAL AND DISPOSITION OF THE ENTIRE OFFENSE
IN ONE COURT WHEN THE JUVENILE'S ASSOCIATES IN THE ALLEGED OFFENSE ARE
ADULTS WHO WILL BE CHARGED WITH A CRIME IN THE U.S. DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA. 

6.  THE SOPHISTICATION AND MATURITY OF THE JUVENILE AS DETERMINED BY
CONSIDERATION OF HIS HOME, ENVIRONMENTAL SITUATION, EMOTIONAL ATTITUDE
AND PATTERN OF LIVING. 

7.  THE RECORD AND PREVIOUS HISTORY OF THE JUVENILE, INCLUDING
PREVIOUS CONTACTS WITH THE YOUTH AID DIVISION, OTHER LAW ENFORCEMENT
AGENCIES, JUVENILE COURTS AND OTHER JURISDICTIONS, PRIOR PERIODS OF
PROBATION TO THIS COURT, OR PRIOR COMMITMENTS TO JUVENILE
INSTITUTIONS. 

8.  THE PROSPECTS FOR ADEQUATE PROTECTION OF THE PUBLIC AND THE
LIKELIHOOD OF REASONABLE REHABILITATION OF THE JUVENILE (IF HE IS FOUND
TO HAVE COMMITTED THE ALLEGED OFFENSE) BY THE USE OF PROCEDURES,
SERVICES AND FACILITIES CURRENTLY AVAILABLE TO THE JUVENILE COURT. 

IT WILL BE THE RESPONSIBILITY OF ANY OFFICER OF THE COURT'S STAFF
ASSIGNED TO MAKE THE INVESTIGATION OF ANY COMPLAINT IN WHICH WAIVER OF
JURISDICTION IS BEING CONSIDERED TO DEVELOP FULLY ALL AVAILABLE
INFORMATION WHICH MAY BEAR UPON THE CRITERIA AND FACTORS SET FORTH
ABOVE.  ALTHOUGH NOT ALL SUCH FACTORS WILL BE INVOLVED IN AN INDIVIDUAL
CASE, THE JUDGE WILL CONSIDER THE RELEVANT FACTORS IN A SPECIFIC CASE
BEFORE REACHING A CONCLUSION TO WAIVE JUVENILE JURISDICTION AND
TRANSFER THE CASE TO THE U.S. DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA FOR TRIAL UNDER THE ADULT PROCEDURES OF THAT COURT. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE HARLAN
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THIS CASE INVOLVES THE CONSTRUCTION OF A STATUTE APPLICABLE ONLY TO
THE DISTRICT OF COLUMBIA.  OUR GENERAL PRACTICE IS TO LEAVE UNDISTURBED
DECISIONS OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
CONCERNING THE IMPORT OF LEGISLATION GOVERNING THE AFFAIRS OF THE
DISTRICT.  GENERAL MOTORS CORP. V. DISTRICT OF COLUMBIA, 380 U.S. 553,
556.  IT APPEARS, HOWEVER, THAT TWO CASES DECIDED BY THE COURT OF
APPEALS SUBSEQUENT TO ITS DECISION IN THE PRESENT CASE MAY HAVE
CONSIDERABLY MODIFIED THE COURT'S CONSTRUCTION OF THE STATUTE. 
THEREFORE, I WOULD VACATE THIS JUDGMENT AND REMAND THE CASE TO THE
COURT OF APPEALS FOR RECONSIDERATION IN THE LIGHT OF ITS SUBSEQUENT
DECISIONS, WATKINS V. UNITED STATES, 119 U.S. APP. D.C. 409, 343 F.2D
278, AND BLACK V. UNITED STATES, 122 U.S. APP. D.C. 393, 355 F.2D 104. 

..END :




MALAT V. RIDDELL 383 U.S. 569 


NO. 487.  ARGUED MARCH 3, 1966.  - DECIDED MARCH 21, 1966.  - 347 F.2D
23, VACATED AND REMANDED. 


UPON THE SALE OF REAL ESTATE WHICH HAD BEEN ACQUIRED BY A JOINT
VENTURE IN WHICH PETITIONERS PARTICIPATED, PETITIONERS REPORTED THE
PROFITS THEREFROM AS CAPITAL GAINS.  RESPONDENT ARGUED THAT THE VENTURE
HAD A DUAL PURPOSE, TO DEVELOP THE PROPERTY FOR RENTAL OR TO SELL IT,
AND THAT THE PROFIT WAS TAXABLE AS ORDINARY INCOME.  THE DISTRICT COURT
RULED THAT PETITIONERS FAILED TO ESTABLISH THAT THE PROPERTY WAS NOT
HELD PRIMARILY FOR SALE TO CUSTOMERS IN THE ORDINARY COURSE OF
BUSINESS, AND THAT THE PROFITS WERE NOT CAPITAL GAINS UNDER 26 U.S.C.
SEC.  1221(1).  THE COURT OF APPEALS AFFIRMED.  RESPONDENT URGES THE
CONSTRUCTION OF "PRIMARILY" AS MEANING THAT A PURPOSE MAY BE "PRIMARY"
IF IT IS A "SUBSTANTIAL" ONE.  HELD:  THE WORD "PRIMARILY," AS USED IN
SEC 1221(1), MEANS "OF FIRST IMPORTANCE" OR "PRINCIPALLY." 

MALAT ET UX. V. RIDDELL, DISTRICT DIRECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

PETITIONER (FN1) WAS A PARTICIPANT IN A JOINT VENTURE WHICH ACQUIRED
A 45-ACRE PARCEL OF LAND, THE INTENDED USE FOR WHICH IS SOMEWHAT IN
DISPUTE.  PETITIONER CONTENDS THAT THE VENTURERS' INTENTION WAS TO
DEVELOP AND OPERATE AN APARTMENT PROJECT ON THE LAND; THE RESPONDENT'S
POSITION IS THAT THERE WAS A "DUAL PURPOSE" OF DEVELOPING THE PROPERTY
FOR RENTAL PURPOSES OR SELLING, WHICHEVER PROVED TO BE THE MORE
PROFITABLE.  IN ANY EVENT, DIFFICULTIES IN OBTAINING THE NECESSARY
FINANCING WERE ENCOUNTERED, AND THE INTERIOR LOTS OF THE TRACT WERE
SUBDIVIDED AND SOLD.  THE PROFIT FROM THOSE SALES WAS REPORTED AND
TAXED AS ORDINARY INCOME. 

THE JOINT VENTURERS CONTINUED TO EXPLORE THE POSSIBILITY OF
COMMERCIALLY DEVELOPING THE REMAINING EXTERIOR PARCELS.  ADDITIONAL
FRUSTRATIONS IN THE FORM OF ZONING RESTRICTIONS WERE ENCOUNTERED. 
THESE DIFFICULTIES PERSUADED PETITIONER AND ANOTHER OF THE JOINT
VENTURERS OF THE DESIRABILITY OF TERMINATING THE VENTURE; ACCORDINGLY,
THEY SOLD OUT THEIR INTERESTS IN THE REMAINING PROPERTY.  PETITIONER
CONTENDS THAT HE IS ENTITLED TO TREAT THE PROFITS FROM THIS LAST SALE
AS CAPITAL GAINS; THE RESPONDENT TAKES THE POSITION THAT THIS WAS
"PROPERTY HELD BY THE TAXPAYER PRIMARILY FOR SALE TO CUSTOMERS IN THE
ORDINARY COURSE OF HIS TRADE OR BUSINESS," (FN2) AND THUS SUBJECT TO
TAXATION AS ORDINARY INCOME. 

THE DISTRICT COURT MADE THE FOLLOWING FINDING: 

"THE MEMBERS OF THE JOINT VENTURE, AS OF THE DATE THE 44.901 ACRES
WERE ACQUIRED, INTENDED EITHER TO SELL THE PROPERTY OR DEVELOP IT FOR
RENTAL, DEPENDING UPON WHICH COURSE APPEARED TO BE MOST PROFITABLE. 
THE VENTURERS REALIZED THAT THEY HAD MADE A GOOD PURCHASE PRICE-WISE
AND, IF THEY WERE UNABLE TO OBTAIN ACCEPTABLE CONSTRUCTION FINANCING OR
REZONING  ...  WHICH WOULD BE PREREQUISITE TO COMMERCIAL DEVELOPMENT,
THEY WOULD SELL THE PROPERTY IN BULK SO THEY WOULDN'T GET HURT.  THE
PURPOSE OF EITHER SELLING OR DEVELOPING THE PROPERTY CONTINUED DURING
THE PERIOD IN WHICH THE JOINT VENTURE HELD THE PROPERTY." 

THE DISTRICT COURT RULED THAT PETITIONER HAD FAILED TO ESTABLISH THAT
THE PROPERTY WAS NOT HELD PRIMARILY FOR SALE TO CUSTOMERS IN THE
ORDINARY COURSE OF BUSINESS, AND THUS REJECTED PETITIONER'S CLAIM TO
CAPITAL GAIN TREATMENT FOR THE PROFITS DERIVED FROM THE PROPERTY'S
RESALE.  THE COURT OF APPEALS AFFIRMED, 347 F.2D 23.  WE GRANTED
CERTIORARI (382 U.S. 900) TO RESOLVE A CONFLICT AMONG THE COURTS OF
APPEALS (FN3) WITH REGARD TO THE MEANING OF THE TERM "PRIMARILY" AS IT
IS USED IN SEC 1221(1) OF THE INTERNAL REVENUE CODE OF 1954. 

THE STATUTE DENIES CAPITAL GAIN TREATMENT TO PROFITS REAPED FROM THE
SALE OF "PROPERTY HELD BY THE TAXPAYER PRIMARILY FOR SALE TO CUSTOMERS
IN THE ORDINARY COURSE OF HIS TRADE OR BUSINESS."  THE RESPONDENT URGES
UPON US A CONSTRUCTION OF "PRIMARILY" AS MEANING THAT A PURPOSE MAY BE
"PRIMARY" IF IT IS A "SUBSTANTIAL" ONE. 

AS WE HAVE OFTEN SAID, "THE WORDS OF STATUTES - INCLUDING REVENUE
ACTS - SHOULD BE INTERPRETED WHERE POSSIBLE IN THEIR ORDINARY, EVERYDAY
SENSES."  CRANE V. COMMISSIONER, 331 U.S. 1, 6.  AND SEE HANOVER BANK
V. COMMISSIONER, 369 U.S. 672, 687-688; COMMISSIONER V. KORELL, 339
U.S. 619, 627-628.  DEPARTURE FROM A LITERAL READING OF STATUTORY
LANGUAGE MAY, ON OCCASION, BE INDICATED BY RELEVANT INTERNAL EVIDENCE
OF THE STATUTE ITSELF AND NECESSARY IN ORDER TO EFFECT THE LEGISLATIVE
PURPOSE.  SEE, E.G., BOARD OF GOVERNORS V. AGNEW, 329 U.S. 441, 446
448.  BUT THIS IS NOT SUCH AN OCCASION.  THE PURPOSE OF THE STATUTORY
PROVISION WITH WHICH WE DEAL IS TO DIFFERENTIATE BETWEEN THE "PROFITS
AND LOSSES ARISING FROM THE EVERYDAY OPERATION OF A BUSINESS" ON THE
ONE HAND (CORN PRODUCTS CO. V. COMMISSIONER, 350 U.S. 46, 52) AND "THE
REALIZATION OF APPRECIATION IN VALUE ACCRUED OVER A SUBSTANTIAL PERIOD
OF TIME" ON THE OTHER.  (COMMISSIONER V. GILLETTE MOTOR CO., 364 U.S.
130, 134.)  A LITERAL READING OF THE STATUTE IS CONSISTENT WITH THIS
LEGISLATIVE PURPOSE.  WE HOLD THAT, AS USED IN SEC 1221(1), "PRIMARILY"
MEANS "OF FIRST IMPORTANCE" OR "PRINCIPALLY." 

SINCE THE COURTS BELOW APPLIED AN INCORRECT LEGAL STANDARD, WE DO NOT
CONSIDER WHETHER THE RESULT WOULD BE SUPPORTABLE ON THE FACTS OF THIS
CASE HAD THE CORRECT ONE BEEN APPLIED.  WE BELIEVE, MOREOVER, THAT THE
APPROPRIATE DISPOSITION IS TO REMAND THE CASE TO THE DISTRICT COURT FOR
FRESH FACT-FINDINGS, ADDRESSED TO THE STATUTE AS WE HAVE NOW CONSTRUED
IT.  VACATED AND REMANDED. 

FN1 THE TAXPAYER AND HIS WIFE WHO FILED A JOINT RETURN ARE THE
PETITIONERS, BUT FOR SIMPLICITY ARE REFERRED TO THROUGHOUT AS
"PETITIONER." 

FN2  INTERNAL REVENUE CODE OF 1954, SEC. 1221(1), 26 U.S.C. SEC.
1221(1): 

"FOR PURPOSES OF THIS SUBTITLE, THE TERM 'CAPITAL ASSET' MEANS
PROPERTY HELD BY THE TAXPAYER (WHETHER OR NOT CONNECTED WITH HIS TRADE
OR BUSINESS), BUT DOES NOT INCLUDE: 

"(1)  ...  PROPERTY HELD BY THE TAXPAYER PRIMARILY FOR SALE TO
CUSTOMERS IN THE ORDINARY COURSE OF HIS TRADE OR BUSINESS." 

FN3  COMPARE ROLLINGWOOD CORP. V. COMMISSIONER, 190 F.2D 263, 266
(C.A. 9TH CIR.); AMERICAN CAN CO. V. COMMISSIONER, 317 F.2D 604, 605
(C.A.2D CIR.), WITH UNITED STATES V. BENNETT, 186 F.2D 407, 410-411
(C.A. 5TH CIR.); MUNICIPAL BOND CORP. V. COMMISSIONER, 341 F.2D 683,
688-689 (C.A. 8TH CIR.).  CF. RECORDAK CORP. V. UNITED STATES, 163 CT.
CL. 294, 300-301, 325 F.2D 460, 463-464. 

MR. JUSTICE BLACK WOULD AFFIRM THE JUDGMENTS OF THE DISTRICT COURT
AND THE COURT OF APPEALS. 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :














MOTORLEASE V. UNITED STATES 383 U.S. 573. 


NO. 24.  DECIDED MARCH 21, 1966.  - CERTIORARI GRANTED; 334 F.2D 617,
REVERSED. 


MOTORLEASE CORP. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IS REVERSED. 
FRIBOURG NAVIGATION CO., INC. V. COMMISSIONER OF INTERNAL REVENUE,
ANTE, P. 272. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK AND MR. JUSTICE WHITE DISSENT
FOR THE REASONS STATED IN THE DISSENTING OPINION OF MR. JUSTICE WHITE
IN FRIBOURG NAVIGATION CO., INC. V. COMMISSIONER OF INTERNAL REVENUE,
SUPRA.
..END :









CROSS V. CALIFORNIA 383 U.S. 573 


NO. 1161, MISC.  DECIDED MARCH 21, 1966.  - APPEAL DISMISSED. 


CROSS V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















KUKICH V. SERBIAN EASTERN ORTHODOX CHURCH 383 U.S. 574 


NO. 931.  DECIDED MARCH 21, 1966.  - 418 PA. 634, 213 A.2D 80, APPEAL
DISMISSED AND CERTIORARI DENIED. 


KUKICH ET AL. V. SERBIAN EASTERN ORTHODOX CHURCH OF PITTSBURGH ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT IN TREATING THE PAPERS AS
A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI SHOULD BE GRANTED. 
..END :













BRIDGES V. CITY OF BILOXI 383 U.S. 574 


NO. 923.  DECIDED MARCH 21, 1966.  - 253 MISS.  812, 178 SO. 2D 683,
APPEAL DISMISSED. 


BRIDGES V. CITY OF BILOXI, MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















PUGACH V. NEW YORK 383 U.S. 575 


NO. 131, MISC.  DECIDED MARCH 21, 1966.  - APPEAL DISMISSED. 


PUGACH V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















COUNTY BOARD OF ELECTION OF MONROE COUNTY, NEW YORK V. UNITED STATES 383
U.S. 575 


NO. 1040.  DECIDED MARCH 21, 1966.  - 248 F. SUPP. 316, APPEAL
DISMISSED. 


COUNTY BOARD OF ELECTION OF MONROE COUNTY, NEW YORK, ET AL. V. UNITED
STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  SWIFT & CO. V.
WICKHAM, 382 U.S. 111; PENNSYLVANIA PUBLIC UTILITY COMMISSION V.
PENNSYLVANIA RAILROAD CO., 382 U.S. 281. 
..END :













FRIBOURG NAVIGATION CO. V. COMMISSIONER OF INTERNAL REVENUE 383 U.S.
272 


NO. 23.  ARGUED NOVEMBER 10, 1965.  - DECIDED MARCH 7, 1966.  - 335 F.2D
15, REVERSED. 


PRIOR TO ACQUIRING A USED LIBERTY SHIP FOR $469,000 IN DECEMBER 1955,
PETITIONER OBTAINED A LETTER RULING FROM THE INTERNAL REVENUE SERVICE
THAT IT WOULD ACCEPT STRAIGHT-LINE DEPRECIATION OF THE SHIP OVER A
USEFUL ECONOMIC LIFE OF THREE YEARS, WITH A SALVAGE VALUE OF $54,000. 
PETITIONER CLAIMED RATABLE DEPRECIATION DEDUCTIONS FROM DATE OF
PURCHASE TO THE END OF 1955 AND FOR THE YEAR 1956 IN ITS INCOME TAX
RETURNS, WHICH WERE NOT CHALLENGED BY RESPONDENT.  AFTER EGYPT SEIZED
THE SUEZ CANAL IN 1956, SHIP PRICES ROSE AND PETITIONER SOLD THE SHIP,
WHICH IT DELIVERED TO THE PURCHASER ON DECEMBER 23, 1957, FOR
$695,500.  PRIOR TO THE SALE PETITIONER ADOPTED A PLAN OF COMPLETE
LIQUIDATION PURSUANT TO SEC. 337 OF THE INTERNAL REVENUE CODE OF 1954,
WHICH IT CARRIED OUT WITHIN 12 MONTHS AND THUS INCURRED NO TAX
LIABILITY ON THE GAIN FROM THE SHIP'S SALE.  BY DECEMBER 1957 THE
SHIPPING SHORTAGE HAD ABATED AND LIBERTY SHIPS WERE BEING SCRAPPED FOR
THE PREDICTED SALVAGE VALUE.  PETITIONER'S 1957 INCOME TAX RETURN
SHOWED A DEDUCTION FROM GROSS INCOME OF DEPRECIATION FOR 357 1/2 DAYS
OF 1957, AND COMPUTATION OF CAPITAL GAIN BY SUBTRACTION OF THE ADJUSTED
BASIS, INCLUDING 1957 DEPRECIATION, FROM THE SALES PRICE OF THE SHIP. 
RESPONDENT DID NOT QUESTION THE ORIGINAL RULING AS TO USEFUL LIFE AND
SALVAGE VALUE OF THE VESSEL, BUT DISALLOWED DEPRECIATION FOR 1957. 
RESPONDENT ARGUED THAT DEPRECIATION DEDUCTIONS ARE MEANT TO GIVE
DEDUCTIONS EQUAL TO THE TAXPAYER'S "ACTUAL NET COST" OF THE ASSET, AND
SINCE THE SALES PRICE EXCEEDED THE ADJUSTED BASIS AT THE START OF THE
YEAR THE SHIP'S USE DURING 1957 "COST" THE PETITIONER "NOTHING." 
RESPONDENT'S POSITION WAS SUSTAINED BY THE TAX COURT AND THE COURT OF
APPEALS.  HELD:  THE SALE OF A DEPRECIABLE ASSET FOR AN AMOUNT IN
EXCESS OF ITS ADJUSTED BASIS AT THE BEGINNING OF THE YEAR OF SALE DOES
NOT BAR DEDUCTION OF DEPRECIATION FOR THAT YEAR.  PP. 275-288. 

(A)  RESPONDENT HAS COMMINGLED TWO DISTINCT AND ESTABLISHED CONCEPTS
OF TAX ACCOUNTING: DEPRECIATION OF AN ASSET THROUGH WEAR AND TEAR OR
GRADUAL EXPIRATION OF USEFUL LIFE, PROVIDED FOR IN SEC. 167 OF THE
INTERNAL REVENUE CODE OF 1954, AND FLUCTUATIONS IN VALUATION THROUGH
MARKET APPRECIATION.  PP. 275-277. 

(B)  THE COMMISSIONER'S REGULATORY SCHEME PROVIDES NO BASIS FOR
DISALLOWANCE OF DEPRECIATION WHEN, AS HERE, THERE HAS BEEN NO CHALLENGE
TO THE ORIGINAL ESTIMATES OF USEFUL LIFE AND SALVAGE.  PP. 278-279. 

(C)  RESPONDENT'S POSITION REPRESENTS A SUDDEN AND UNWARRANTED ABOUT
FACE FROM A CONSISTENT ADMINISTRATIVE AND JUDICIAL PRACTICE FOLLOWED
UNTIL 1962.  PP. 279-283. 

(D)  THE COMMISSIONER'S PRACTICE MUST BE DEEMED TO HAVE RECEIVED
CONGRESSIONAL APPROVAL BY THE REPEATED RE-ENACTMENT OVER THE SAME
PERIOD OF THE DEPRECIATION PROVISION WITHOUT SUBSTANTIAL CHANGE.   P.
283. 

(E)  RESPONDENT'S POSITION IS NOT CONSISTENT:  UNDER HIS THEORY
DEPRECIATION FOR 1955 AND 1956 WOULD ALSO BE DISALLOWED SINCE THE USE
OF THE ASSET "COST" THE TAXPAYER "NOTHING" IN THOSE YEARS AS WELL; NOR
WILL RESPONDENT PERMIT ADDITIONAL DEPRECIATION TO BE TAKEN WHERE AN
ASSET IS SOLD FOR LESS THAN ITS ADJUSTED BASIS.  PP. 286-287. 

FRIBOURG NAVIGATION CO., INC. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED FOR DETERMINATION IS WHETHER, AS A MATTER OF
LAW, THE SALE OF A DEPRECIABLE ASSET FOR AN AMOUNT IN EXCESS OF ITS
ADJUSTED BASIS AT THE BEGINNING OF THE YEAR OF SALE BARS DEDUCTION OF
DEPRECIATION FOR THAT YEAR. 

ON DECEMBER 21, 1955, THE TAXPAYER, FRIBOURG NAVIGATION CO., INC.,
PURCHASED THE S.S.  JOSEPH FEUER, A USED LIBERTY SHIP, FOR $469,000. 
PRIOR TO THE ACQUISITION, THE TAXPAYER OBTAINED A LETTER RULING FROM
THE INTERNAL REVENUE SERVICE ADVISING THAT THE SERVICE WOULD ACCEPT
STRAIGHT-LINE DEPRECIATION OF THE SHIP OVER A USEFUL ECONOMIC LIFE OF
THREE YEARS, SUBJECT TO CHANGE IF WARRANTED BY SUBSEQUENT EXPERIENCE. 
THE LETTER RULING ALSO ADVISED THAT THE SERVICE WOULD ACCEPT A SALVAGE
VALUE ON THE FEUER OF $5 PER DEAD-WEIGHT TON, AMOUNTING TO $54,000. 
ACTING IN ACCORDANCE WITH THE RULING THE TAXPAYER COMPUTED ALLOWABLE
DEPRECIATION, AND IN ITS INCOME TAX RETURNS FOR 1955 AND 1956 CLAIMED
RATABLE DEPRECIATION DEDUCTIONS FOR THE 10-DAY PERIOD FROM THE DATE OF
PURCHASE TO THE END OF 1955 AND FOR THE FULL YEAR 1956.  THE INTERNAL
REVENUE SERVICE AUDITED THE RETURNS FOR EACH OF THESE YEARS AND
ACCEPTED THE DEPRECIATION DEDUCTIONS CLAIMED WITHOUT ADJUSTMENT.  AS A
RESULT OF THESE DEPRECIATION DEDUCTIONS, THE ADJUSTED BASIS OF THE SHIP
AT THE BEGINNING OF 1957 WAS $326,627.73. 

IN JULY OF 1956, EGYPT SEIZED THE SUEZ CANAL.  DURING THE ENSUING
HOSTILITIES THE CANAL BECAME BLOCKED BY SUNKEN VESSELS, THUS FORCING
SHIPS TO TAKE LONGER ROUTES TO PORTS OTHERWISE REACHED BY GOING THROUGH
THE CANAL.  THE RESULTING SCARCITY OF AVAILABLE SHIPS TO CARRY CARGOES
CAUSED SALES PRICES OF SHIPS TO RISE SHARPLY.  IN JANUARY AND FEBRUARY
OF 1957, EVEN THE OUTMODED LIBERTY SHIPS BROUGHT AS MUCH AS $1,000,000
ON THE MARKET.  IN JUNE 1957, THE TAXPAYER ACCEPTED AN OFFER TO SELL
THE FEUER FOR $700,000.  DELIVERY WAS ACCOMPLISHED ON DECEMBER 23,
1957, UNDER MODIFIED CONTRACT TERMS WHICH REDUCED THE SALE PRICE TO
$695,500.  PRIOR TO THE SALE OF THE FEUER, THE TAXPAYER ADOPTED A PLAN
OF COMPLETE LIQUIDATION PURSUANT TO THE PROVISIONS OF SEC. 337 OF THE
INTERNAL REVENUE CODE OF 1954, WHICH IT THEREAFTER CARRIED OUT WITHIN
12 MONTHS.  THUS, NO TAX LIABILITY WAS INCURRED BY THE TAXPAYER ON THE
CAPITAL GAIN FROM THE SALE OF THE SHIP.  AS IT DEVELOPED, THE
TAXPAYER'S TIMING WAS IMPECCABLE - BY DECEMBER 1957, THE SHIPPING
SHORTAGE HAD ABATED AND LIBERTY SHIPS WERE BEING SCRAPPED FOR AMOUNTS
NEARLY IDENTICAL TO THE $54,000 WHICH THE TAXPAYER AND THE SERVICE HAD
ORIGINALLY PREDICTED FOR SALVAGE VALUE. 

ON ITS 1957 INCOME TAX RETURN, FOR INFORMATION PURPOSES ONLY, THE
TAXPAYER REPORTED A CAPITAL GAIN OF $504,239.51 ON THE DISPOSITION OF
THE SHIP, MEASURED BY THE SELLING PRICE LESS THE ADJUSTED BASIS AFTER
TAKING A DEPRECIATION ALLOWANCE OF $135,367.24 FOR 357 1/2 DAYS OF
1957.  THE TAXPAYER'S DEDUCTIONS FROM GROSS INCOME FOR 1957 INCLUDED
THE DEPRECIATION TAKEN ON THE FEUER.  ALTHOUGH THE COMMISSIONER DID NOT
QUESTION THE ORIGINAL RULING AS TO THE USEFUL LIFE AND SALVAGE VALUE OF
THE FEUER AND DID NOT RECONSIDER THE ALLOWANCE OF DEPRECIATION FOR 1955
AND 1956, HE DISALLOWED THE ENTIRE DEPRECIATION DEDUCTION FOR 1957. 
HIS POSITION WAS SUSTAINED BY A SINGLE JUDGE IN THE TAX COURT AND, WITH
ONE DISSENT, BY A PANEL OF THE COURT OF APPEALS FOR THE SECOND
CIRCUIT.  335 F.2D 15.  THE TAXPAYER AND THE COMMISSIONER AGREED THAT
THE QUESTION IS IMPORTANT, THAT IT IS CURRENTLY BEING HEAVILY
LITIGATED, AND THAT THERE IS A CONFLICT BETWEEN CIRCUIT COURTS OF
APPEALS ON THIS ISSUE.  THEREFORE, WE GRANTED CERTIORARI.  379 U.S.
998.  WE REVERSE. 

      I. 

THE COMMISSIONER TAKES THE POSITION HERE AND IN A REVENUE RULING
FIRST PUBLISHED THE DAY BEFORE THE TRIAL OF THIS CASE IN THE TAX COURT
(FN1) THAT THE DEDUCTION FOR DEPRECIATION IN THE YEAR OF SALE OF A
DEPRECIABLE ASSET IS LIMITED TO THE AMOUNT BY WHICH THE ADJUSTED BASIS
OF THE ASSET AT THE BEGINNING OF THE YEAR EXCEEDS THE AMOUNT REALIZED
FROM THE SALE.  THE COMMISSIONER ARGUES THAT DEPRECIATION DEDUCTIONS
ARE DESIGNED TO GIVE A TAXPAYER DEDUCTIONS EQUAL TO THE "ACTUAL NET
COST" OF THE ASSET TO THE TAXPAYER, AND SINCE THE SALE PRICE OF THE
FEUER EXCEEDED THE ADJUSTED BASIS AS OF THE FIRST OF THE YEAR, THE USE
OF THE SHIP DURING 1957 "COST" THE TAXPAYER "NOTHING."  BY TYING
DEPRECIATION TO SALE PRICE IN THIS MANNER, THE COMMISSIONER HAS
COMMINGLED TWO DISTINCT AND ESTABLISHED CONCEPTS OF TAX ACCOUNTING -
DEPRECIATION OF AN ASSET THROUGH WEAR AND TEAR OR GRADUAL EXPIRATION OF
USEFUL LIFE AND FLUCTUATIONS IN THE VALUE OF THAT ASSET THROUGH CHANGES
IN PRICE LEVELS OR MARKET VALUES. 

LANGUAGE SUBSTANTIALLY UNCHANGED IN OVER 50 YEARS OF REVENUE STATUTES:
"THERE SHALL BE ALLOWED AS A DEPRECIATION DEDUCTION A REASONABLE
ALLOWANCE FOR THE EXHAUSTION, WEAR AND TEAR (INCLUDING A REASONABLE
ALLOWANCE FOR OBSOLESCENCE) - (1) OF PROPERTY USED IN THE TRADE OR
BUSINESS, OR (2) OF PROPERTY HELD FOR THE PRODUCTION OF INCOME."  IN
UNITED STATES V. LUDEY, 274 U.S. 295, 300-301, THE COURT DESCRIBED
DEPRECIATION AS FOLLOWS: 

"THE DEPRECIATION CHARGE PERMITTED AS A DEDUCTION FROM THE GROSS
INCOME IN DETERMINING THE TAXABLE INCOME OF A BUSINESS FOR ANY YEAR
REPRESENTS THE REDUCTION, DURING THE YEAR, OF THE CAPITAL ASSETS
THROUGH WEAR AND TEAR OF THE PLANT USED.  THE AMOUNT OF THE ALLOWANCE
FOR DEPRECIATION IS THE SUM WHICH SHOULD BE SET ASIDE FOR THE TAXABLE
YEAR, IN ORDER THAT, AT THE END OF THE USEFUL LIFE OF THE PLANT IN THE
BUSINESS, THE AGGREGATE OF THE SUMS SET ASIDE WILL (WITH THE SALVAGE
VALUE) SUFFICE TO PROVIDE AN AMOUNT EQUAL TO THE ORIGINAL COST." 

SEE ALSO DETROIT EDISON CO. V. COMMISSIONER, 319 U.S. 98, 101.  IN SO
DEFINING DEPRECIATION, TAX LAW HAS LONG RECOGNIZED THE ACCOUNTING
CONCEPT THAT DEPRECIATION IS A PROCESS OF ESTIMATED ALLOCATION WHICH
DOES NOT TAKE ACCOUNT OF FLUCTUATIONS IN VALUATION THROUGH MARKET
APPRECIATION.  (FN2) 

IT IS, OF COURSE, UNDISPUTED THAT THE COMMISSIONER MAY REQUIRE
REDETERMINATION OF USEFUL LIFE OR SALVAGE VALUE WHEN IT BECOMES
APPARENT THAT EITHER OF THESE FACTORS HAS BEEN MISCALCULATED.  THE FACT
OF SALE OF AN ASSET AT AN AMOUNT GREATER THAN ITS DEPRECIATED BASIS MAY
BE EVIDENCE OF SUCH A MISCALCULATION.  SEE MACABE CO., 42 T.C. 1105,
1115 (1964).  BUT THE FACT ALONE OF SALE ABOVE ADJUSTED BASIS DOES NOT
ESTABLISH AN ERROR IN ALLOCATION.  THAT IS CERTAINLY TRUE WHEN, AS
HERE, THE PROFIT ON SALE RESULTED FROM AN UNEXPECTED AND SHORT-LIVED,
BUT SPECTACULAR, CHANGE IN THE WORLD MARKET. 

THE COMMISSIONER CONTENDS THAT OUR DECISIONS IN MASSEY MOTORS, INC.
V. UNITED STATES, 364 U.S. 92, AND HERTZ CORP. V. UNITED STATES, 364
U.S. 122, CONFIRM HIS THEORY.  TO THE EXTENT THESE CASES ARE RELEVANT
HERE AT ALL, THEY SUPPORT THE TAXPAYER'S POSITION.  IN MASSEY AND HERTZ
WE HELD THAT WHEN A TAXPAYER, AT THE TIME HE ACQUIRES AN ASSET,
REASONABLY EXPECTS HE WILL USE IT FOR LESS THAN ITS FULL PHYSICAL OR
ECONOMIC LIFE, HE MUST, FOR PURPOSES OF COMPUTING DEPRECIATION, EMPLOY
A USEFUL LIFE BASED ON THE PERIOD OF EXPECTED USE.  WE RECOGNIZED IN
THOSE CASES THAT DEPRECIATION IS BASED ON ESTIMATES AS TO USEFUL LIFE
AND SALVAGE VALUE.  SINCE THE ORIGINAL ESTIMATES HERE WERE ADMITTEDLY
REASONABLE AND PROVED TO BE ACCURATE, THERE IS NO GROUND FOR
DISALLOWANCE OF DEPRECIATION. 

      II. 

THIS CONCEPT OF DEPRECIATION IS REFLECTED IN THE COMMISSIONER'S OWN
REGULATIONS.  THE REASONABLE ALLOWANCE PROVIDED FOR IN SEC. 167 IS
EXPLAINED IN TREAS. REG. SEC. 1.167(A)-1 AS "THAT AMOUNT WHICH SHOULD
BE SET ASIDE FOR THE TAXABLE YEAR IN ACCORDANCE WITH A REASONABLY
CONSISTENT PLAN  ...  SO THAT THE AGGREGATE OF THE AMOUNTS SET ASIDE,
PLUS THE SALVAGE VALUE, WILL, AT THE END OF THE ESTIMATED USEFUL LIFE
OF THE DEPRECIABLE PROPERTY, EQUAL THE COST OR OTHER BASIS OF THE
PROPERTY ...  .  THE ALLOWANCE SHALL NOT REFLECT AMOUNTS REPRESENTING A
MERE REDUCTION IN MARKET VALUE."  TREAS. REG. SEC. 1.167(A)-1(C)
DEFINES SALVAGE VALUE AS THE AMOUNT, DETERMINED AT THE TIME OF
ACQUISITION, WHICH IS ESTIMATED WILL BE REALIZABLE UPON SALE OR WHEN IT
IS NO LONGER USEFUL IN THE TAXPAYER'S TRADE OR BUSINESS.  THAT SECTION
CONTINUES:  "SALVAGE VALUE SHALL NOT BE CHANGED AT ANY TIME AFTER THE
DETERMINATION MADE AT THE TIME OF ACQUISITION MERELY BECAUSE OF CHANGES
IN PRICE LEVELS.  HOWEVER, IF THERE IS A REDETERMINATION OF USEFUL LIFE
...  SALVAGE VALUE MAY BE REDETERMINED BASED UPON FACTS KNOWN AT THE
TIME OF SUCH REDETERMINATION OF USEFUL LIFE."  USEFUL LIFE MAY BE
REDETERMINED "ONLY WHEN THE CHANGE IN THE USEFUL LIFE IS SIGNIFICANT
AND THERE IS A CLEAR AND CONVINCING BASIS FOR THE REDETERMINATION." 
TREAS.  REG. SEC. 1.167(A)-1(B).  THIS CAREFULLY CONSTRUCTED REGULATORY
SCHEME PROVIDES NO BASIS FOR DISALLOWANCES OF DEPRECIATION WHEN NO
CHALLENGE HAS BEEN MADE TO THE REASONABLENESS OR ACCURACY OF THE
ORIGINAL ESTIMATES OF USEFUL LIFE OR SALVAGE VALUE.  FURTHER, FROM 1951
UNTIL AFTER CERTIORARI WAS GRANTED IN THIS CASE, THE REGULATIONS
DEALING WITH AMORTIZATION IN EXCESS OF DEPRECIATION CONTAINED AN
EXAMPLE EXPRESSLY INDICATING THAT DEPRECIATION COULD BE TAKEN ON A
DEPRECIABLE ASSET IN THE YEAR OF PROFITABLE SALE OF THAT ASSET.  (FN3) 

THE COMMISSIONER RELIES HEAVILY ON TREAS. REG. SEC. 1.167(B)-0
PROVIDING THAT THE REASONABLENESS OF A CLAIM FOR DEPRECIATION SHALL BE
DETERMINED "UPON THE BASIS OF CONDITIONS KNOWN TO EXIST AT THE END OF
THE PERIOD FOR WHICH THE RETURN IS MADE."  HE CONTENDS THAT AFTER THE
SALE THE TAXPAYER "KNEW" THAT THE FEUER HAD "COST" HIM "NOTHING" IN
1957.  THIS AGAIN IGNORES THE DISTINCTION BETWEEN DEPRECIATION AND
GAINS THROUGH MARKET APPRECIATION.  THE COURT BELOW ADMITTED THAT THE
INCREASE IN THE VALUE OF THE SHIP RESULTED FROM CIRCUMSTANCES "NORMALLY
ASSOCIATED WITH CAPITAL GAIN."  THE INTENDED INTERPLAY OF SEC.  167 AND
THE CAPITAL GAINS PROVISIONS IS CLEARLY REFLECTED IN TREAS. REG. SEC.
1.167(A)-8(A)(1), WHICH PROVIDES:

"WHERE AN ASSET IS RETIRED BY SALE AT ARM'S LENGTH, RECOGNITION OF
GAIN OR LOSS WILL BE SUBJECT TO THE PROVISIONS OF SECTIONS 1002, 1231,
AND OTHER APPLICABLE PROVISIONS OF LAW." 

                                         III. 

THE COMMISSIONER'S POSITION REPRESENTS A SUDDEN AND UNWARRANTED VOLTE
FACE FROM A CONSISTENT ADMINISTRATIVE AND JUDICIAL PRACTICE FOLLOWED
PRIOR TO 1962.  THE TAXPAYER HAS CITED A WEALTH OF LITIGATED CASES
(FN4) AND SEVERAL RULINGS (FN5) IN WHICH THE COMMISSIONER
UNHESITATINGLY ALLOWED DEPRECIATION IN THE YEAR OF FAVORABLE SALE. 
AGAINST THIS ARRAY OF AUTHORITY, THE COMMISSIONER CONTENDS THAT HE DID
NOT "FOCUS" ON THE ISSUE IN MOST OF THESE INSTANCES.  THIS IS HARDLY A
PERSUASIVE RESPONSE TO THE OVERWHELMINGLY CONSISTENT DISPLAY OF HIS
POSITION.  ONE MIGHT WELL SPECULATE THAT THE COMMISSIONER DID NOT
"FOCUS" ON THE ISSUE IN MANY CASES BECAUSE HE TREATED IT AS TOO WELL
SETTLED FOR CONSIDERATION.  MOREOVER, IN SEVERAL INSTANCES, THE
COMMISSIONER DID NOT MERELY CONSENT TO DEPRECIATION IN THE YEAR OF
SALE, BUT INSISTED OVER THE TAXPAYER'S OBJECTION THAT IT BE TAKEN. 
(FN6) 

THE COMMISSIONER ADDS THAT IN WIER LONG LEAF LUMBER CO., 9 T.C. 990,
REV'D ON OTHER GROUNDS, 173 F.2D 549, HE DID FOCUS ON THE ISSUE AND
THERE CONTENDED THAT NO DEPRECIATION COULD BE TAKEN IN THE YEAR OF
SALE.  HOWEVER, IN WIER THE TAX COURT ALLOWED DEPRECIATION AS TO ONE
CLASS OF ASSETS AND THE COMMISSIONER PROMPTLY ACQUIESCED IN THE
DECISION.  (FN7)  1948-1 CUM.  BULL.  3.  THIS ACQUIESCENCE WAS NOT
WITHDRAWN UNTIL 14 YEARS LATER WHEN THE COMMISSIONER ADOPTED HIS
PRESENT POSITION.  1962-1 CUM. BULL.  5.  ALTHOUGH WE RECOGNIZE THAT
SUCH AN ACQUIESCENCE DOES NOT IN AND OF ITSELF COMMIT THE COMMISSIONER
TO THIS INTERPRETATION OF THE LAW, IT IS A SIGNIFICANT ADDITION TO THE
ALREADY CONVINCING ARRAY OF AUTHORITY SHOWING THE COMMISSIONER'S
CONSISTENT PRIOR POSITION. 

THE COMMISSIONER ATTEMPTS FURTHER TO EXPLAIN AWAY THE AUTHORITY
ALIGNED AGAINST HIM BY STATING THAT MOST OF THE CASES AND RULINGS PRIOR
TO 1942 (WHEN CAPITAL GAIN TREATMENT WAS PROVIDED FOR SALES ABOVE
ADJUSTED BASIS) ARE IRRELEVANT SINCE THE GAIN ON SALE WAS TAXED AT THE
SAME ORDINARY INCOME RATE THAT WOULD HAVE BEEN APPLIED HAD DEPRECIATION
BEEN DISALLOWED.  THIS CONTENTION DOES NOT EXPLAIN AWAY THE
COMMISSIONER'S SUDDEN DECISION THAT ALLOWANCE OF SUCH DEPRECIATION
INVOLVES A FUNDAMENTAL ERROR IN THE BASIC CONCEPT OF DEPRECIATION. 
FURTHER, OTHER THAN HIS LACK OF "FOCUS," THE COMMISSIONER HAS HAD NO
EXPLANATION FOR THOSE CASES IN WHICH CAPITAL GAIN ON SALE WAS
INVOLVED.  (FN8)  EVEN IN THOSE CASES BEFORE THIS COURT UPON WHICH THE
COMMISSIONER RELIES FOR SUPPORT OF HIS THEORY, DEPRECIATION WAS
WILLINGLY ALLOWED IN THE YEAR OF SALE.  IN MASSEY MOTORS, INC. V.
UNITED STATES, SUPRA, ALTHOUGH CONTESTING THE USEFUL LIFE OF THE
AUTOMOBILES INVOLVED, THE COMMISSIONER ALLOWED DEPRECIATION TO AN
ESTIMATED VALUE OF $1,325, DESPITE SALES FOR AN AVERAGE OF $1,380.  364
U.S., AT 94-95.  AND IN HERTZ CORP. V. UNITED STATES, SUPRA, THE
COMMISSIONER ACCEPTED CLAIMS OF DEPRECIATION DEDUCTIONS UP TO THE DATE
OF SALE, OBJECTING ONLY TO THE TAXPAYER'S ATTEMPT TO OBTAIN REFUNDS BY
CHANGING RETROACTIVELY TO THE DOUBLE DECLINING BALANCE METHOD OF
DEPRECIATION.  (FN9) THE FACT THAT THERE ARE PRESENTLY SEVERAL HUNDRED
CASES IN LITIGATION OVER THIS ISSUE WHERE BEFORE THERE WERE NONE ADDS
TESTIMONY TO THE INESCAPABLE CONCLUSION THAT THE COMMISSIONER HAS
BROKEN WITH CONSISTENT PRIOR PRACTICE IN ESPOUSING THE NOVEL THEORY HE
NOW URGES UPON US.    THE AUTHORITY RELIED ON IN REVENUE RULING 62-92,
COHN V. UNITED STATES, 259 F.2D 371, DOES NOT SUPPORT THIS DEPARTURE
FROM ESTABLISHED PRACTICE.  COHN WAS SIMPLY A CASE IN WHICH THE
TAXPAYER HAD ASSIGNED NO SALVAGE VALUE TO THE PROPERTY INVOLVED, AND
THE COURT OF APPEALS FOUND NO CLEAR ERROR IN THE SELECTION OF THE
AMOUNT REALIZED ON DISPOSITION OF THE ASSET AT THE END OF ITS SCHEDULED
USEFUL LIFE AS A REASONABLE YARDSTICK BY WHICH TO MEASURE SALVAGE
VALUE.  (FN10)  AS HAS BEEN APTLY STATED OF COHN, "IT DOES NOT PURPORT
TO SET UP AN AUTOMATIC HINDSIGHT RE-EVALUATION WHICH BECOMES A SELF
EXECUTING REDETERMINATION OF SALVAGE VALUE TRIGGERED BY THE SALE OF
DEPRECIABLE ASSETS."  MOTORLEASE CORP. V. UNITED STATES, 215 F. SUPP.
356, 363, REV'D, 334 F.2D 617, PET. FOR CERT. FILED.   IN HIS BRIEF IN
COHN, THE COMMISSIONER DID NOT REST HIS CASE ON ANYTHING RESEMBLING HIS
POSITION HERE, BUT RELIED PRINCIPALLY ON THE FACT THAT THE TAXPAYER
HIMSELF HAD SOUGHT AN ADJUSTMENT OF USEFUL LIFE AND THAT, UNDER THE
REGULATIONS, "IF THERE IS A REDETERMINATION OF USEFUL LIFE, THE SALVAGE
VALUE MAY BE REDETERMINED."  BRIEF FOR THE UNITED STATES, PP. 24-26, IN
COHN V. UNITED STATES, 259 F.2D 371, QUOTED IN MERRITT, GOVERNMENT
BRIEFS IN COHN REFUTE IRS DISALLOWANCE OF YEAR-OF-SALE DEPRECIATION, 20
J. TAXATION 156, 158 (1964). 

                                          IV. 

OVER THE SAME EXTENDED PERIOD OF YEARS DURING WHICH THE FOREGOING
ADMINISTRATIVE AND JUDICIAL PRECEDENT WAS ACCUMULATING, CONGRESS
REPEATEDLY RE-ENACTED THE DEPRECIATION PROVISION WITHOUT SIGNIFICANT
CHANGE.  THUS, BEYOND THE GENERALLY UNDERSTOOD SCOPE OF THE
DEPRECIATION PROVISION ITSELF, THE COMMISSIONER'S PRIOR LONG-STANDING
AND CONSISTENT ADMINISTRATIVE PRACTICE MUST BE DEEMED TO HAVE RECEIVED
CONGRESSIONAL APPROVAL.  SEE, E.G., CAMMARANO V. UNITED STATES, 358
U.S. 498, 510-511; UNITED STATES V. LESLIE SALT CO., 350 U.S. 383, 396
397; HELVERING V. WINMILL, 305 U.S. 79, 83. 

THE LEGISLATIVE HISTORY IN THIS AREA MAKES IT ABUNDANTLY CLEAR THAT
CONGRESS WAS COGNIZANT OF THE REVENUE POSSIBILITIES IN SALES ABOVE
DEPRECIATED COST.  IN 1942 CONGRESS RESTORED CAPITAL GAIN TREATMENT TO
SALES OF DEPRECIABLE ASSETS.  (FN11)  THE ACCOMPANYING HOUSE REPORT
STATED THAT IT WOULD BE "AN UNDUE HARDSHIP" ON TAXPAYERS WHO WERE ABLE
TO SELL DEPRECIABLE PROPERTY AT A GAIN OVER DEPRECIATED COST TO TREAT
SUCH GAIN AS ORDINARY INCOME.  H.R. REP. NO. 2333, 77TH CONG., 2D
SESS., 54 (1942).  THIS, OF COURSE, IS PRO TANTO THE EFFECT OF
DISALLOWING DEPRECIATION IN THE YEAR OF SALE ABOVE ADJUSTED BASIS.  IT
WOULD BE STRANGE INDEED, ESPECIALLY IN LIGHT OF THE HOUSE REPORT, TO
CONCLUDE THAT CONGRESS LABORED TO CREATE A TAX PROVISION WHICH, IN
APPLICATION TO DEPRECIABLE PROPERTY, COULD BY ADMINISTRATIVE FIAT BE
MADE APPLICABLE ONLY TO SALES OF ASSETS FOR AMOUNTS EXCEEDING THEIR
BASIS AT THE BEGINNING OF THE YEAR OF SALE, AND THEN ONLY TO THE
EXCESS.  IN SUCCEEDING YEARS CONGRESS WAS REPEATEDLY ASKED TO ENACT
LEGISLATION TREATING GAINS ON SALES OF DEPRECIATED PROPERTY AS ORDINARY
INCOME; (FN12) IT DECLINED TO DO SO UNTIL 1962. 

IN 1961, IN HIS TAX MESSAGE TO CONGRESS, THE PRESIDENT OBSERVED THAT
EXISTING LAW PERMITTED TAXPAYERS TO DEPRECIATE ASSETS BELOW THEIR
MARKET VALUE AND, UPON SALE, TO TREAT THE DIFFERENCE AS CAPITAL GAIN. 
(FN13)  THE SECRETARY OF THE TREASURY CONCURRED IN THIS POSITION. 
(FN14)  THE EXHIBITS APPENDED NOT ONLY CONTAIN NO MENTION OF THE
COMMISSIONER'S POWER TO REQUIRE RECALCULATION OF DEPRECIATION IN THE
YEAR OF SALE, BUT REFUTE THE EXISTENCE OF SUCH POWER.  IN EXAMPLE AFTER
EXAMPLE CITED BY THE TREASURY, THE TAXPAYER HAD DEPRECIATED AN ASSET,
SOLD IT FOR AN AMOUNT IN EXCESS OF ITS DEPRECIATED BASIS, AND TREATED
THE DIFFERENCE AS CAPITAL GAIN.  (FN15)  THE TREASURY ASSERTED THAT
EXISTING LAW PERMITTED THIS PRACTICE, AND MADE NO MENTION OF THE POWER
WHICH THE COMMISSIONER NOW ALLEGES HE POSSESSES TO DISALLOW YEAR-OF
SALE DEPRECIATION. 

IN 1962 CONGRESS ENACTED SEC. 1245 OF THE INTERNAL REVENUE CODE OF
1954, PROVIDING THAT GAIN ON FUTURE DISPOSITIONS OF DEPRECIABLE
PERSONAL PROPERTY BE TREATED AS ORDINARY INCOME TO THE EXTENT OF
DEPRECIATION TAKEN.  FOR POST-1962 TRANSACTIONS SEC. 1245 APPLIES TO
THE SITUATION WHICH OCCURRED IN THE INSTANT CASE AND WOULD PRODUCE
GREATER REVENUE.  THE TAXPAYER MUST REPORT AS ORDINARY INCOME ALL
DEPRECIATION RECOUPED ON SALE, AND THIS NOTWITHSTANDING THAT THE SALE
WAS PART OF A NONRECOGNITION LIQUIDATION WITHIN SEC. 337.  IN 1964, A
MORE COMPLEX RECAPTURE PROVISION DEALING WITH REAL PROPERTY WAS
ENACTED.  THIS TIME, HOWEVER, CONGRESS TOOK INTO ACCOUNT THE FACT THAT
INCREASES IN THE VALUE OF REAL PROPERTY ARE OFTEN ATTRIBUTABLE TO A
RISE IN THE GENERAL PRICE LEVEL AND LIMITED RECAPTURE OF DEPRECIATION
AS ORDINARY INCOME TO A PERCENTAGE OF THE EXCESS OVER STRAIGHT-LINE
DEPRECIATION.  H.R. REP. NO. 749, 88TH CONG., 1ST SESS., 101-102
(1963); S. REP. NO. 830, 88TH CONG., 2D SESS., 132-133 (1964).  (FN16)
THE COMMISSIONER'S POSITION WOULD IGNORE ANY SUCH LIMITATION. 
COMPOUNDING CONGRESSIONAL ACTIVITY IN THIS AREA WITH REPEATED RE
ENACTMENT OF THE DEPRECIATION PROVISION IN THE FACE OF THE PRIOR
CONSISTENT ADMINISTRATIVE PRACTICE, WE FIND THE COMMISSIONER'S POSITION
UNTENABLE. 

        V. 

FINALLY, THE COMMISSIONER'S POSITION CONTAINS INCONSISTENCIES.  HE
CONTENDS THAT DEPRECIATION MUST BE DISALLOWED IN 1957 SINCE THE AMOUNT
RECEIVED ON SALE SHOWS THAT THE USE OF THE ASSET "COST" THE TAXPAYER
"NOTHING" IN THAT YEAR.  BUT UNDER THIS VIEW, SINCE THE ASSET WAS SOLD
AT AN AMOUNT GREATER THAN ITS ORIGINAL PURCHASE PRICE, IT "COST" THE
TAXPAYER "NOTHING" IN 1955 AND 1956 AS WELL.  THE COMMISSIONER'S
RELIANCE ON THE STRUCTURE OF THE ANNUAL INCOME TAX REPORTING SYSTEM
DOES NOT CURE THE ILLOGIC OF HIS THEORY.  FURTHER, THE COMMISSIONER
APPARENTLY WILL NOT EXTEND HIS NEW THEORY TO SITUATIONS WHERE IT WOULD
BENEFIT THE TAXPAYER.  IF A DEPRECIABLE ASSET IS SOLD FOR LESS THAN ITS
ADJUSTED BASIS, IT WOULD SEEM TO FOLLOW FROM THE COMMISSIONER'S
CONSTRUCTION THAT THE ASSET HAS "COST" THE TAXPAYER AN ADDITIONAL
AMOUNT AND THAT FURTHER DEPRECIATION SHOULD BE PERMITTED.  HOWEVER,
REVENUE RULING 62-92 DOES NOT EXTEND TO SUCH A CASE AND THE
COMMISSIONER HAS EXPRESSLY REFUSED TO MAKE IT DO SO.  (FN17) 

THE CONCLUSION WE HAVE REACHED FINDS SUPPORT AMONG NEARLY ALL LOWER
FEDERAL COURTS THAT HAVE RECENTLY DEALT WITH THIS ISSUE.  (FN18)  UPON
CONSIDERATION EN BANC, THE TAX COURT ITSELF HAS CONCLUDED THAT THE
COMMISSIONER'S POSITION IS WITHOUT AUTHORIZATION IN THE STATUTE OR THE
REGULATIONS.  (FN19) 

IN LIGHT OF THE FOREGOING, WE CONCLUDE THAT THE DEPRECIATION CLAIMED
BY THE TAXPAYER FOR 1957 WAS ERRONEOUSLY DISALLOWED.  REVERSED. 

FN1  REV. RUL. 62-92, 1962-1 CUM. BULL.  29 (ORIGINALLY T.I.R. 384,
JUNE 7, 1962).  THAT RULING PROVIDES IN PART: 

"  ...  THE DEDUCTION FOR DEPRECIATION OF AN ASSET USED IN THE TRADE
OR BUSINESS OR IN THE PRODUCTION OF INCOME SHALL BE ADJUSTED IN THE
YEAR OF DISPOSITION SO THAT THE DEDUCTION, OTHERWISE PROPERLY ALLOWABLE
FOR SUCH YEAR UNDER THE TAXPAYER'S METHOD OF ACCOUNTING FOR
DEPRECIATION, IS LIMITED TO THE AMOUNT, IF ANY, BY WHICH THE ADJUSTED
BASIS OF THE PROPERTY AT THE BEGINNING OF SUCH YEAR EXCEEDS THE AMOUNT
REALIZED FROM SALE OR EXCHANGE." 

FN2  SEE, E.G., MACABE CO., 42 T.C. 1105, 1109; WIER LONG LEAF LUMBER
CO., 9 T.C. 990, 999, REV'D ON OTHER GROUNDS, 173 F.2D 549; NOTE, 50
VA. L. REV. 1431 (1964); COMMENT, 11 U.C.L.A. L. REV. 593 (1964).  SEE
ALSO MONTGOMERY'S AUDITING 268 (8TH ED. 1957). 

FN3  TREAS. REG. SEC. 1.1238-1, EXAMPLE (1), BASED ON H.R. REP. NO.
3124, 81ST CONG., 2D SESS., 29 (1950), AMENDED TO CONFORM TO THE
COMMISSIONER'S PRESENT POSITION ON JUNE 1, 1965.  1965-1 CUM. BULL. 
366. 

FN4  SEE, E.G., UNITED STATES V. LUDEY, 274 U.S. 295 (1927); ELDORADO
COAL & MINING CO. V. MAGER, 255 U.S. 522, 526 (1921); BECKRIDGE CORP.
V. COMMISSIONER, 129 F.2D 318 (C.A.2D CIR. 1942); CLARK THREAD CO. V.
COMMISSIONER, 100 F.2D 257 (C.A. 3D CIR. 1938), AFFIRMING 28 B.T.A.
1128, 1140 (1933); KITTREDGE V. COMMISSIONER, 88 F.2D 632 (C.A.2D CIR.
1937); SEYMOUR MFG. CO. V. BURNET, 56 F.2D 494, 495-496 (C.A.D.C. CIR.
1932); HALL V. UNITED STATES, 95 CT. CL. 539, 43 F. SUPP. 130, 131-132,
CERT. DENIED, 316 U.S. 664 (1942); HERBERT SIMONS, 19 B.T.A. 711, 712
713 (1930); MAX EICHENBERG, 16 B.T.A. 1368, 1370 (1929); LOUIS KALB, 15
B.T.A. 865, 866 (1929); EVEN REALTY CO., 1 B.T.A. 355, 356 (1925); H.
L. GATLIN, 19 CCH TAX CT. MEM. 131, 132 (1960); P.H.&J.M. BROWN CO., 18
CCH TAX CT. MEM. 708, 709-710 (1959). 

FN5  G.C.M. 1597, VI-1 CUM. BULL.  71 (1927); S.M. 2112, III-2 CUM.
BULL.  22 (1924); A.R.R. 6930, III-1 CUM. BULL.  45 (1924); I.T. 1494,
I-2 CUM. BULL.  19 (1922).  SEE ALSO I.T. 1158, I-1 CUM. BULL.  173
(1922). 

FN6  IN HERBERT SIMONS, SUPRA, NOTE 4, THE TAXPAYERS TRIED WITHOUT
SUCCESS TO FORGO THE DEPRECIATION DEDUCTION FOR THE YEAR OF SALE SINCE
THE TAXES PAYABLE ON THE RESULTING INCREASE IN ORDINARY INCOME WOULD
HAVE BEEN LESS THAN THE INCREASED AMOUNT PAYABLE UNDER THE EXISTING
CAPITAL GAIN PROVISION IF DEPRECIATION WERE TAKEN.  IN SEVERAL OTHER
CASES THE COMMISSIONER EXPRESSLY REQUIRED A YEAR-OF-SALE DEPRECIATION
DEDUCTION, THUS INCREASING THE GAIN ON THE SALE.  SEE, E.G., CLARK
THREAD CO. V. COMMISSIONER, KITTREDGE V. COMMISSIONER, EVEN REALTY CO.,
SUPRA, NOTE 4. 

FN7  THE COMMISSIONER'S ARGUMENT THAT THE DECISION IN WIER WAS
AMBIGUOUS SINCE THE COURT THERE DISALLOWED DEPRECIATION OF ANOTHER
ASSET IN THE YEAR OF SALE IS WITHOUT MERIT.  THE COURT CAREFULLY RESTED
ITS DECISION DISALLOWING DEPRECIATION OF THAT ASSET ON THE FACT THAT
THERE WAS NO EVIDENCE IN THE RECORD WHICH WOULD PERMIT IT TO ASCERTAIN
REASONABLE SALVAGE VALUE.  WITH RESPECT TO THE OTHER CLASS OF ASSETS,
THE COURT STATED: 

"THE PARTIES HAVE BY THEIR STIPULATION NARROWED THE SCOPE OF
CONTROVERSY.  THEY PRESENT FOR CONSIDERATION ONLY THE QUESTION WHETHER
THE PRICE RECEIVED FROM THE SALE OF THE DEPRECIATED AUTOMOBILES
PRECLUDES ANY DEPRECIATION ALLOWANCE."  9 T.C. 990, 999. 

THE COURT HELD:  "THE DEPRECIATION DEDUCTION CAN NOT BE DISALLOWED
MERELY BY REASON OF THE PRICE RECEIVED FOR THE ARTICLE WITHOUT
CONSIDERATION OF OTHER FACTORS."  IBID. 

FN8  SEE HALL V. UNITED STATES, HERBERT SIMONS, MAX EICHENBERG, H.L.
GATLIN, P.H.&J.M.  BROWN CO., SUPRA, NOTE 4; G.C.M. 1597, VI-1 CUM.
BULL.  71 (1927).  SEE ALSO CASES CITED, NOTE 6, SUPRA. 

FN9  SEE 165 F. SUPP. 261, 265, 269, AND TRANSCRIPT OF RECORD IN
HERTZ IN THIS COURT, AT 13-18. 

FN10  NOTE, FOR EXAMPLE, THE COURT'S RELIANCE ON WIER LONG LEAF
LUMBER CO., DISCUSSED IN NOTE 7, SUPRA.  259 F.2D, AT 378-379.  INDEED,
THE OPINION IN COHN CLEARLY RECOGNIZES THE ESTABLISHED PRACTICE OF
DEPRECIATION WHICH THE COMMISSIONER WOULD HAVE US OVERTHROW. 

THE COURT THERE NOTED: 

"NECESSARILY, SALVAGE VALUE IS ALSO AN ESTIMATE MADE AT THE TIME WHEN
THE ASSET IS FIRST SUBJECT TO A DEPRECIATION ALLOWANCE  ...  .  IF THE
ASSET IS SOLD AT A PRICE IN EXCESS OF ITS DEPRECIATED VALUE, SUCH
EXCESS IS TAXABLE IN THE NATURE OF A CAPITAL GAIN."  ID., AT 377. 

FN11  INT. REV. CODE, 1939, SEC. 117(J), 56 STAT. 846 (NOW INT. REV.
CODE, 1954, SEC. 1231). 

FN12  SEE, E.G., HEARINGS BEFORE THE HOUSE WAYS AND MEANS COMMITTEE,
80TH CONG., 1ST SESS., ON REVENUE REVISIONS, PT. 5, P. 3756 (1948), AT
WHICH THE TREASURY RECOMMENDED THAT GAINS ON SALES OF DEPRECIABLE
ASSETS SHOULD BE SUBJECT TO ORDINARY INCOME TAXATION TO THE EXTENT THE
GAINS AROSE FROM ACCELERATED DEPRECIATION; HEARINGS BEFORE THE SENATE
FINANCE COMMITTEE, 83D CONG., 2D SESS., ON H.R. 8300, PT. 3, P. 1324
(1954), AT WHICH CONGRESS WAS ASKED BY THE AMERICAN INSTITUTE OF
ACCOUNTANTS TO ENACT THAT ALL GAINS ON SALES OF DEPRECIABLE ASSETS BE
TREATED AS ORDINARY INCOME.  SEE ALSO TREASURY DEPARTMENT RELEASE A
761, FEBRUARY 15, 1960. 

FN13  THE PRESIDENT STATED: 

"ANOTHER FLAW WHICH SHOULD BE CORRECTED AT THIS TIME RELATES TO THE
TAXATION OF GAINS ON THE SALE OF DEPRECIABLE BUSINESS PROPERTY.  SUCH
GAINS ARE NOW TAXED AT THE PREFERENTIAL RATE APPLICABLE TO CAPITAL
GAINS, EVEN THOUGH THEY REPRESENT ORDINARY INCOME. 

"THIS SITUATION ARISES BECAUSE THE STATUTORY RATE OF DEPRECIATION MAY
NOT COINCIDE WITH THE ACTUAL DECLINE IN THE VALUE OF THE ASSET.  WHILE
THE TAXPAYER HOLDS THE PROPERTY, DEPRECIATION IS TAKEN AS A DEDUCTION
FROM ORDINARY INCOME.  UPON ITS RESALE, WHERE THE AMOUNT OF
DEPRECIATION ALLOWABLE EXCEEDS THE DECLINE IN THE ACTUAL VALUE OF THE
ASSET SO THAT A GAIN OCCURS, THIS GAIN UNDER PRESENT LAW IS TAXED AT
THE PREFERENTIAL CAPITAL GAINS RATE.  THE ADVANTAGES RESULTING FROM
THIS PRACTICE HAVE BEEN INCREASED BY THE LIBERALIZATION OF DEPRECIATION
RATES. 

     *         *         *         *         * 

"I THEREFORE RECOMMEND THAT CAPITAL GAINS TREATMENT BE WITHDRAWN FROM
GAINS ON THE DISPOSITION OF DEPRECIABLE PROPERTY, BOTH PERSONAL AND
REAL PROPERTY, TO THE EXTENT THAT DEPRECIATION HAS BEEN DEDUCTED FOR
SUCH PROPERTY BY THE SELLER IN PREVIOUS YEARS, PERMITTING ONLY THE
EXCESS OF THE SALES PRICE OVER THE ORIGINAL COST TO BE TREATED AS A
CAPITAL GAIN."  MESSAGE ON TAXATION, HEARINGS BEFORE THE COMMITTEE ON
WAYS AND MEANS, HOUSE OF REPRESENTATIVES, H.R. DOC. NO. 140, 87TH
CONG., 1ST SESS., 11 (1961).    FN14  ID., AT 40. 

FN15  ID., AT 262-267.  SEE ALSO TREAS. REG. SEC. 1.1238-1, NOTE 3,
SUPRA. 

FN16  IN 1963, WITH THE INSTANT CASE ALREADY IN THE COURTS, CONGRESS
FOR THE FIRST TIME ALLUDED TO THE POSITION NOW TAKEN BY THE
COMMISSIONER, NOTING THAT: 

"  ...  IT HAS BEEN HELD THAT DEPRECIATION DEDUCTIONS SHOULD NOT BE
ALLOWED TO THE EXTENT THEY REDUCE THE ADJUSTED BASIS OF THE PROPERTY
BELOW THE ACTUAL AMOUNT REALIZED.  THIS PROVISION, IN PROVIDING FOR
ORDINARY INCOME TREATMENT FOR CERTAIN ADDITIONAL DEPRECIATION, IS NOT
INTENDED TO AFFECT THIS HOLDING."  H.R. REP. NO. 749, 88TH CONG., 1ST
SESS., 103 (1963); S. REP. NO. 830, 88TH CONG., 2D SESS., 133 (1964). 

FN17  IN ENGINEERS LIMITED PIPELINE CO., 44 T.C. 226 (1965), THE
TAXPAYER CONTENDED THAT HE SHOULD GET A FURTHER DEPRECIATION DEDUCTION
ON ASSETS WHICH HE SOLD FOR LESS THAN THEIR DEPRECIATED BASIS.  THE
COMMISSIONER DISALLOWED THE ADDITIONAL DEDUCTION.  SEE ALSO WHITAKER V.
COMMISSIONER, 259 F.2D 379. 

FN18  SEE UNITED STATES V. S&A CO., 338 F.2D 629 (C.A. 8TH CIR.),
AFFIRMING 218 F. SUPP. 677 (D.C.D. MINN.), PET. FOR CERT. FILED;
OCCIDENTAL LOAN CO. V. UNITED STATES, 235 F. SUPP. 519 (D.C.S.D.
CALIF.); WYOMING BUILDERS, INC. V. UNITED STATES, 227 F. SUPP. 534
(D.C.D. WYO.); MOTORLEASE CORP. V. UNITED STATES, 215 F. SUPP. 356
(D.C.D. CONN.), REVERSED ON THE AUTHORITY OF THE DECISION BELOW IN THE
INSTANT CASE, 334 F.2D 617 (C.A.2D CIR.), PET. FOR CERT. FILED;
MOUNTAIN STATES MIXED FEED CO. V. UNITED STATES, 245 F. SUPP.  369
(D.C.D. COLO.).  SEE ALSO KIMBALL GAS PRODUCTS CO. V. UNITED STATES,
CCH 63-2 U.S. TAX CAS. PARA. 9507 (D.C.W.D. TEX.).  CONTRA, KILLEBREW
V. UNITED STATES, 234 F. SUPP. 481 (D.C.E.D. TENN.). 

FN19  MACABE CO., 42 T.C. 1105 (1964).  THE ATTEMPT IN MACABE TO
DISTINGUISH THE INSTANT CASE ON THE GROUND THAT HERE THE TAXPAYER USED
INACCURATE ESTIMATES AND FAILED TO SUSTAIN ITS BURDEN OF PROOF OF
MARKET APPRECIATION IGNORES THE FACT THAT THE COMMISSIONER DOES NOT
CONTEST THE REASONABLENESS OF THE ORIGINAL ESTIMATES OF USEFUL LIFE AND
SALVAGE VALUE.  SEE MCNERNEY, DISALLOWANCE OF DEPRECIATION IN THE YEAR
OF SALE AT A GAIN, 20 TAX L. REV.  615, 650 (1965). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE CLARK
JOIN, DISSENTING. 

IN MY OPINION, THE COURT OF APPEALS WAS FAITHFUL TO THE CONGRESSIONAL
CONCEPT OF DEPRECIATION AND TO THE INTERNAL REVENUE CODE AND APPLICABLE
TREASURY REGULATIONS.  ACCORDINGLY, I WOULD AFFIRM. 

DEPRECIATION DEDUCTION ONLY A "REASONABLE ALLOWANCE" FOR EXHAUSTION,
WEAR AND TEAR, AND OBSOLESCENCE.  THIS ALLOWANCE WAS DESIGNED BY
CONGRESS TO ENABLE THE TAXPAYER TO RECOVER HIS NET INVESTMENT IN
WASTING ASSETS USED IN HIS TRADE OR BUSINESS OR HELD FOR THE PRODUCTION
OF INCOME TO THE EXTENT THAT THE INVESTMENT LOSES VALUE THROUGH
EXHAUSTION, WEAR AND TEAR, OR OBSOLESCENCE.  (FN1)  IN THIS MANNER THE
TAXPAYER WILL BE TAXED ONLY ON THE NET, RATHER THAN THE GROSS, INCOME
PRODUCED BY THE DEPRECIABLE ASSET IN ACCORDANCE WITH THE GENERAL
CONGRESSIONAL SCHEME TO TAX ONLY NET INCOME.  IT WAS NOT, HOWEVER, THE
INTENT OF CONGRESS TO ENABLE THE TAXPAYER TO RECOVER MORE THAN HIS
ACTUAL NET INVESTMENT AND THEREBY TO CONVERT ORDINARY INCOME INTO A
CAPITAL GAIN THROUGH EXCESSIVE DEPRECIATION.  "CONGRESS INTENDED BY THE
DEPRECIATION ALLOWANCE NOT TO MAKE TAXPAYERS A PROFIT THEREBY, BUT
MERELY TO PROTECT THEM FROM A LOSS."  MASSEY MOTORS V. UNITED STATES,
364 U.S. 92, 101.  SEE ALSO DETROIT EDISON V. COMMISSIONER, 319 U.S.
98, WHERE THE COURT REFUSED TO ALLOW THE TAXPAYER TO DEPRECIATE THAT
PORTION OF THE INITIAL INVESTMENT OF AN ASSET THAT DID NOT REPRESENT
ACTUAL EXPENDITURE BY IT BECAUSE BORNE BY ITS CUSTOMERS.  ACCORDINGLY,
IN JUDGING WHETHER A GIVEN DEPRECIATION DEDUCTION IS "REASONABLE," WE
SHOULD DETERMINE WHETHER THE DEDUCTION IS DESIGNED TO RECOVER TAX-FREE
ONLY THE ACTUAL INVESTMENT IN THE ASSET, MASSEY MOTORS, SUPRA, AT 105,
OR WHETHER IT IS CALCULATED INSTEAD TO RETURN A GREATER AMOUNT. 

IT WOULD BE EASY ENOUGH TO COMPUTE DEPRECIATION IF THE TAXPAYER WERE
REQUIRED TO WAIT UNTIL DISPOSITION OF THE ASSET, AT WHICH TIME HE WOULD
KNOW WITH PRECISION HIS NET INVESTMENT, BEFORE HE COULD CLAIM A
DEPRECIATION ALLOWANCE.  WHETHER HE WERE THEN REQUIRED TO TAKE THE
ENTIRE DEPRECIATION ALLOWANCE IN THE YEAR OF SALE OR PERMITTED TO
REOPEN THE PREVIOUS TAX YEARS DURING WHICH HE HELD THE ASSET AND SPREAD
THE ALLOWANCE RATABLY AMONG THEM, IT COULD BE ENSURED THAT HE WOULD
THEN RECOVER PRECISELY, BUT NO MORE THAN, HIS ACTUAL, NET INVESTMENT. 
HOWEVER, BOTH FOR ADMINISTRATIVE AND ECONOMIC REASONS, CONGRESS HAS
CHOSEN TO ALLOW THE TAXPAYER TO TAKE DEPRECIATION DEDUCTIONS IN ADVANCE
OF THE DISPOSITION OF THE ASSET BY ESTIMATING WHAT PORTION OF HIS NET
INVESTMENT SHOULD BE ALLOCATED FOR THE USE OF THE ASSET IN ANY GIVEN
YEAR.  THIS ESTIMATE INVOLVES TWO UNKNOWNS:  THE DURATION OF ITS USE BY
THE TAXPAYER (FN2) AND THE SALVAGE VALUE (RESALE PRICE OF THE ASSET IF
IT IS RESOLD).  (FN3)  EVERY EFFORT MUST BE MADE, IN ESTIMATING THESE
TWO VALUES, TO COME AS CLOSE TO THE ACTUAL FIGURES AS POSSIBLE.  MASSEY
MOTORS V. UNITED STATES, SUPRA.  INDEED, IT IS REASONABLE TO USE
ESTIMATES AT ALL ONLY BECAUSE THE ACTUAL FIGURES ARE GENERALLY NOT
KNOWABLE IN ADVANCE.  HOWEVER, WHEN THE ACTUAL FIGURES DO BECOME KNOWN
AND THEY DIFFER MATERIALLY FROM THE ESTIMATES OF THEM PREVIOUSLY MADE
AND THEY CAN BE SUBSTITUTED FOR THE ESTIMATES WITH ALMOST NO
INCONVENIENCE OR UNFAIRNESS, THEN IT SEEMS TO ME TO BE CLEARLY
UNREASONABLE, AND HENCE UNAUTHORIZED BY SEC. 167, TO CONTINUE TO RELY
ON THE ESTIMATES.  SEE HERTZ CORP. V. UNITED STATES, 364 U.S. 122,
128. 

IN THE PRESENT CASE, FRIBOURG KNEW IN 1957 WHAT ITS ACTUAL NET
INVESTMENT IN THE S.S. JOSEPH FEUER WOULD BE.  IT KNEW THAT IF IT
CLAIMED THE PREVIOUSLY ESTIMATED DEPRECIATION DEDUCTION FOR THAT YEAR
IT WOULD RECOVER MORE THAN ITS NET INVESTMENT AND WOULD BE IMMUNIZING
OTHER INCOME FROM NORMAL INCOME TAX RATES.  (FN4)  IT ALSO KNEW THAT A
READJUSTMENT COULD BE MADE FOR 1957 WITH FINALITY AND WITHOUT
SIGNIFICANT INCONVENIENCE BECAUSE THE RESALE VALUE AND USEFUL LIFE HAD
BEEN DEFINITELY DETERMINED.  NEVERTHELESS, FRIBOURG CONTINUED TO USE
THE PREVIOUSLY ESTIMATED FIGURES, KNOWN TO IT TO BE ERRONEOUS.  THIS,
TO ME, WAS PATENTLY UNREASONABLE AND, THEREFORE, OUTSIDE THE SCOPE OF
SEC. 167. 

NOT ONLY DID FRIBOURG VIOLATE THE TERMS OF THE STATUTE, IT ALSO
FAILED TO COMPLY WITH THE APPLICABLE, LONG-STANDING TREASURY
REGULATIONS.  TREASURY REGULATION SEC. 1.167(A)-1(B) PROVIDES THAT THE
ESTIMATE OF USEFUL LIFE IS TO BE REDETERMINED BY REASON OF CONDITIONS
KNOWN TO EXIST AT THE END OF THE TAXABLE YEAR WHENEVER THE CHANGE IN
USEFUL LIFE IS SIGNIFICANT AND THERE IS A CLEAR AND CONVINCING BASIS
FOR THE REDETERMINATION.  AS A COMPANION PROVISION, TREAS. REG. SEC.
1.167(A)-1(C) PROVIDES THAT WHENEVER THERE IS A REDETERMINATION OF
USEFUL LIFE, SALVAGE VALUE SHOULD ALSO BE REDETERMINED IF REQUIRED BY
FACTS KNOWN AT THE TIME OF THE REDETERMINATION.  AT THE END OF THE
TAXABLE YEAR 1957, FRIBOURG KNEW IT HAD OVERESTIMATED USEFUL LIFE BY
APPROXIMATELY ONE-THIRD, WHICH SEEMS TO ME TO BE A SIGNIFICANT ERROR. 
AT THE SAME TIME, IT KNEW ITS ESTIMATE OF SALVAGE VALUE WAS ONLY ABOUT
ONE-THIRTEENTH THE ACTUAL SALVAGE VALUE.  AND, IT HAD THE CLEAREST AND
MOST CONVINCING BASIS POSSIBLE FOR REDETERMINATION - IT KNEW THE ACTUAL
FIGURES.  AS I READ THE ABOVE REGULATIONS, THEY SURELY REQUIRE A
REDETERMINATION IN THIS SITUATION. 

FURTHER, TREAS. REG. SEC. 1.167(B)-0 SAYS THAT "DEDUCTIONS FOR
DEPRECIATION SHALL NOT EXCEED SUCH AMOUNTS AS MAY BE NECESSARY TO
RECOVER THE UNRECOVERED COST OR OTHER BASIS LESS SALVAGE  ...  ."  TO
THE SAME EFFECT ARE TREAS. REG. SECS. 1.167(A)-1(A) AND (C), WHICH WARN
THAT "AN ASSET SHALL NOT BE DEPRECIATED BELOW A REASONABLE SALVAGE
VALUE," REMEMBERING THAT REASONABLENESS IS TO BE DETERMINED "UPON THE
BASIS OF CONDITIONS KNOWN TO EXIST AT THE END OF THE PERIOD FOR WHICH
THE RETURN IS MADE."   TREAS.  REG. SEC. 1.167(B)-0.  SEE HERTZ CORP.
V. UNITED STATES, SUPRA.  YET HERE FRIBOURG KNOWINGLY RECOVERED MORE
THAN ITS "COST OR OTHER BASIS" LESS SALVAGE.  HERE FRIBOURG KNOWINGLY
DEPRECIATED ITS ASSET BELOW A REASONABLE SALVAGE VALUE IN LIGHT OF
CONDITIONS KNOWN AT THE END OF 1957. 

I THINK THE MAJORITY MISREADS THAT PROVISION IN THE REGULATIONS THAT
SAYS "SALVAGE VALUE IS THE AMOUNT (DETERMINED AT THE TIME OF
ACQUISITION) WHICH IS ESTIMATED WILL BE REALIZABLE UPON SALE OR OTHER
DISPOSITION OF AN ASSET  ...  .  SALVAGE VALUE SHALL NOT BE CHANGED AT
ANY TIME AFTER THE DETERMINATION MADE AT THE TIME OF ACQUISITION MERELY
BECAUSE OF CHANGES IN PRICE LEVELS."  TREAS. REG. SEC. 1.167(A)-1(C). 
THAT PROVISION MERELY RECOGNIZES THE FACT THAT IN YEARS PRIOR TO THE
CONCLUDING OF A RESALE AGREEMENT THE SALVAGE VALUE CAN ONLY BE
ESTIMATED AND IT WOULD BE ADMINISTRATIVELY BURDENSOME AND FREQUENTLY
FUTILE TO REQUIRE REDETERMINATIONS EACH YEAR MERELY BECAUSE OF PRICE
CHANGES THAT MAY ULTIMATELY PROVE EPHEMERAL.  BUT THOSE PROVISIONS
CERTIANLY DO NOT EXPRESS A POLICY AGAINST REDETERMINATION, IN THE YEAR
OF A PREMATURE SALE, OF SALVAGE VALUE WHEN IT CAN BE KNOWN WITH
FINALITY WHAT EFFECT THE PRICE LEVELS WILL HAVE ON THE SALVAGE VALUE. 
REV. RUL. 62-92, 1962-1 CUM. BULL.  29; COHN V. UNITED STATES, 259 F.2D
371, 378.  THE VERY NEXT SENTENCE IN THAT REGULATION SEEMS TO
ACKNOWLEDGE THE RELEVANCE OF PRICE LEVELS, PROVIDED THAT SUCH
RECOGNITION DOES NOT CAUSE UNDUE ADMINISTRATIVE HARDSHIP:  "HOWEVER, IF
THERE IS A REDETERMINATION OF USEFUL LIFE  ...  , SALVAGE VALUE MAY BE
REDETERMINED BASED UPON FACTS KNOWN AT THE TIME OF SUCH REDETERMINATION
OF USEFUL LIFE." 

THE MAJORITY OPINION FAULTS THE COMMISSIONER FOR HAVING "COMMINGLED
TWO DISTINCT  ...  CONCEPTS OF TAX ACCOUNTING - DEPRECIATION OF AN
ASSET THROUGH WEAR AND TEAR OR GRADUAL EXPIRATION OF USEFUL LIFE AND
FLUCTUATIONS IN THE VALUE OF THAT ASSET THROUGH CHANGES IN PRICE LEVELS
OR MARKET VALUES."  IN MY OPINION THESE TWO CONCEPTS, AS USED IN THE
INTERNAL REVENUE CODE, ARE NECESSARILY COMMINGLED AND IT IS UNREALISTIC
TO EXPECT THAT ONE CAN BE ISOLATED FROM THE OTHER.  ONE OF THE
ESSENTIAL ELEMENTS IN THE CONCEPT OF DEPRECIATION DEDUCTIONS IS SALVAGE
VALUE, TREAS. REG. SEC. 1.167(A)-1(A); SALVAGE VALUE IS RESALE PRICE IF
THE ASSET IS RESOLD, MASSEY MOTORS V. UNITED STATES, SUPRA, AT 105-107;
EDWARD V. LANE, 37 T.C. 188; AND RESALE PRICE IS DIRECTLY INFLUENCED BY
FLUCTUATIONS IN MARKET VALUE.  TO THE EXTENT THAT SUCH FLUCTUATIONS ARE
PREDICTABLE, THEY MUST BE CONSIDERED IN MAKING A REASONABLE ESTIMATE OF
SALVAGE OR RESALE VALUE OF THE INVESTMENT.  SEE BOLTA CO., 4 CCH TAX
CT. MEM. 1067.  (FN5)  IN ADDITION, AS REFLECTED BY THIS CASE,
PREDICTABLE MARKET FLUCTUATIONS IN VALUE MAY ALSO AFFECT THE USEFUL
LIFE OF THE ASSET.  TO THE EXTENT THAT DISPOSAL OF AN ASSET BY SALE
BECOMES MORE ATTRACTIVE THROUGH MARKET APPRECIATION IT CAN BE EXPECTED
THAT USEFUL LIFE, AS DEFINED IN MASSEY MOTORS, SUPRA, WILL SHORTEN. 
ALTHOUGH MARKET APPRECIATION IN THIS CASE WAS MORE RAPID THAN WILL
NORMALLY BE THE CASE, IT WAS PREDICTABLE FOR MORE THAN A YEAR BEFORE
FRIBOURG SOLD ITS SHIP, AND BY THE END OF 1957 FRIBOURG KNEW EXACTLY
WHAT EFFECT MARKET APPRECIATION WOULD HAVE UPON THE RESALE VALUE OF
USEFUL LIFE.  IN THIS SITUATION MARKET APPRECIATION SHOULD NOT HAVE
BEEN DISREGARDED. 

THE MAJORITY ALSO CONTENDS THAT THE COMMISSIONER'S POSITION CONTAINS
AN INCONSISTENCY BECAUSE HE DISALLOWED DEPRECIATION ONLY FOR THE YEAR
IN WHICH THE SALE OCCURRED AND DID NOT REQUIRE A DISALLOWANCE FOR
PREVIOUS YEARS ALTHOUGH THE RESALE PRICE WAS SUFFICIENTLY HIGH TO
INDICATE THAT THE S.S. JOSEPH FEUER DID NOT "COST" FRIBOURG ANYTHING IN
THE EARLIER YEARS EITHER.  HOWEVER, IN THE EARLIER TAX YEARS IT WAS
REASONABLE TO RELY ON THE ESTIMATED SALVAGE VALUE, SINCE THE ACTUAL
SALVAGE VALUE WAS NOT THEN KNOWN.  AT ANY RATE, IT IS WELL ESTABLISHED
THAT A MODIFICATION OF THE DEPRECIATION ALLOWANCE (FOR WHATEVER REASON)
WILL NOT BE APPLIED RETROACTIVELY TO PREVIOUS TAX YEARS.  FOR EXAMPLE,
IF THE USEFUL LIFE IS DETERMINED TO BE LONGER THAN ORIGINALLY BELIEVED,
THE ALLOWABLE DEPRECIATION IS NOT MODIFIED FOR THE PRIOR YEARS IN WHICH
EXCESSIVE DEPRECIATION HAD BEEN TAKEN, BUT THE REMAINING UNDEPRECIATED
BASIS MINUS SALVAGE VALUE IS SPREAD RATABLY OVER THE NEW ESTIMATED
REMAINING USEFUL LIFE AND DEPRECIATION DEDUCTIONS TAKEN ACCORDINGLY FOR
THE CURRENT AND SUCCEEDING YEARS.  COMMISSIONER V. CLEVELAND ADOLPH
MAYER REALTY CORP., 160 F.2D 1012; COMMISSIONER V. MUTUAL FERTILIZER
CO., 159 F.2D 470; 4 MERTENS, LAW OF FEDERAL INCOME TAXATION, SEC.
23.47; SEE ALSO VIRGINIAN HOTEL CO. V. HELVERING, 319 U.S. 523; S. REP.
NO. 665, 72D CONG., 1ST SESS., 29. 

THERE IS A FURTHER ALLEGED INCONSISTENCY BECAUSE THE COMMISSIONER MAY
BE REFUSING TO ALLOW ADDITIONAL DEPRECIATION IN THE YEAR OF SALE WHEN
SALVAGE VALUE TURNS OUT TO BE LESS THAN THE ADJUSTED BASIS AT THE TIME
OF SALE.  THIS ALLEGED INCONSISTENCY, HOWEVER, SHOULD BE DEALT WITH
WHEN IT IS PROPERLY PRESENTED TO US.  (FN6) 

FINALLY, I TURN TO THE MAJORITY'S CONTENTION THAT THE COMMISSIONER'S
POSITION REPRESENTS A DRAMATIC DEPARTURE FROM PREVIOUS ADMINISTRATIVE
AND JUDICIAL PRACTICE AND THAT CONGRESSIONAL RE-ENACTMENT OF THE
DEPRECIATION PROVISION DURING THIS TIME REFLECTS CONGRESSIONAL APPROVAL
OF THAT PREVIOUS INTERPRETATION. 

SEVERAL OF THE CASES AND REVENUE RULINGS RELIED UPON BY THE MAJORITY
TO ESTABLISH PAST PRACTICE WERE CONCERNED WITH TAX YEARS PREVIOUS TO
1922, (FN7) WHEN THE FIRST CAPITAL GAIN PROVISION BECAME APPLICABLE. 
(FN8)  I WOULD NOT GIVE PRECEDENTIAL SIGNIFICANCE TO POSITIONS TAKEN
DURING THAT TIME BECAUSE THE TAX SAVING RESULTING FROM A DEPRECIATION
DEDUCTION IN THE YEAR OF SALE WOULD HAVE BEEN EXACTLY OFFSET BY THE TAX
LIABILITY RESULTING FROM THE CORRESPONDINGLY GREATER GAIN UPON THE SALE
OF THE ASSET DUE TO THE LOWER BASIS.  THE REMAINING REVENUE RULING
(FN9) AND MOST OF THE REMAINING CASES RELIED UPON BY THE MAJORITY WERE
CONCERNED PRIMARILY WITH ISSUES OTHER THAN THE ONE NOW BEFORE US.
(FN10)  IN THE ABSENCE OF ANY INDICATION THAT THE COMMISSIONER OR THE
COURTS IN THOSE INSTANCES FOCUSED ON THE PRECISE ISSUE NOW BEFORE US
THESE EXAMPLES ARE WITHOUT PRECEDENTIAL VALUE.  THERE IS ONE EARLY
DECISION OF THE BOARD OF TAX APPEALS, HERBERT SIMONS, 19 B.T.A. 711,
AND ONE BY THE TAX COURT, WIER LONG LEAF LUMBER CO., 9 T.C. 990, THAT
DID EXPRESSLY CONSIDER THE PROBLEM WHETHER A TAXPAYER COULD CLAIM
DEPRECIATION IN THE YEAR HE SELLS AN ASSET AT A PRICE ABOVE HIS
DEPRECIATED BASIS FOR THAT ASSET.  IN WIER LONG LEAF LUMBER CO. THE
COMMISSIONER CHALLENGED THE RIGHT OF THE TAXPAYER TO TAKE DEPRECIATION
IN THE YEAR OF SALE AND AT LEAST PART OF THAT COURT'S OPINION SEEMS TO
SUPPORT THE COMMISSIONER'S POSITION.  (FN11)  THIS LEAVES ONLY HERBERT
SIMONS IN WHICH THE COMMISSIONER AND THE BOARD APPEAR TO TAKE A
CONSIDERED POSITION INCONSISTENT WITH THAT NOW URGED BY THE
COMMISSIONER.  IN MY OPINION THAT DECISION SHOULD BE DISAPPROVED AS
BEING INCONSISTENT WITH THE STATUTORY PROVISION FOR DEPRECIATION AND
THE INTERPRETATIVE REGULATIONS.  IN RECENT YEARS, IT SHOULD BE
OBSERVED, THERE IS SUBSTANTIAL JUDICIAL AUTHORITY FOR THE DISALLOWANCE
OF DEPRECIATION IN THE YEAR OF A SALE ABOVE DEPRECIATED BASIS.  (FN12) 

TO THE EXTENT THAT THE COMMISSIONER TOOK AN INCONSISTENT POSITION IN
ANY OF THESE EARLY CASES, I WOULD CERTAINLY NOT NOW HOLD HIM TO THAT
POSITION.  (FN13)  WE HAVE FREQUENTLY IN THE PAST RECOGNIZED THE
COMMISSIONER'S AUTHORITY TO RE-EVALUATE A PRIOR POSITION UPON THE BASIS
OF GREATER EXPERIENCE AND REFLECTION AND TO ADJUST THAT POSITION TO THE
EXTENT THAT HE BECOMES CONVINCED THAT AN ADJUSTMENT IS NECESSARY TO
COMPORT WITH CONGRESSIONAL INTENT, EVEN WHEN THIS RESULTS IN A DISTINCT
REVERSAL OF A PREVIOUS POSITION AND THE TAXPAYER HAD RELIED UPON THE
PREVIOUS POSITION.  (FN14)  DIXON V. UNITED STATES, 381 U.S. 68;
AUTOMOBILE CLUB OF MICHIGAN V. COMMISSIONER, 353 U.S. 180.  WERE THE
COMMISSIONER DENIED THIS AUTHORITY, IT WOULD BE TANTAMOUNT TO FREEZING
IN ACKNOWLEDGED ERROR.  IT SEEMS STRANGE, THEREFORE, THAT THE MAJORITY
TODAY WOULD DENY THE COMMISSIONER THIS AUTHORITY WHEN HIS EARLIER
POSITION WAS NOT CLEAR AND WHEN FRIBOURG HAS MADE ABSOLUTELY NO SHOWING
THAT IT WOULD NOT HAVE MADE ARRANGEMENTS TO SELL THE S.S. JOSEPH FEUER
WHEN IT DID BUT FOR A RELIANCE UPON THE ALLEGED PREVIOUSLY INCONSISTENT
POSITION OF THE COMMISSIONER. 

UNDER THESE CIRCUMSTANCES, IT ALSO SEEMS UNREALISTIC TO ME TO ARGUE
THAT, BY RE-ENACTING THE DEPRECIATION PROVISION ON SEVERAL OCCASIONS
PRIOR TO THE PROMULGATION OF REV. RUL. 62-92 IN 1962, CONGRESS INTENDED
TO GIVE FORCE OF STATUTORY LAW TO THE POSITION THAT DEPRECIATION SHOULD
BE ALLOWED ON AN ASSET IN THE YEAR IT IS SOLD AT A PRICE ABOVE ITS
DEPRECIATED BASIS.  THIS REASONING HAS BEEN RECOGNIZED AS "NO MORE THAN
AN AID IN STATUTORY CONSTRUCTION," HELVERING V. REYNOLDS, 313 U.S. 428,
432, AND AS "AN UNRELIABLE INDICIUM AT BEST" BY THE CHIEF JUSTICE
WRITING FOR THE COURT IN COMMISSIONER V. GLENSHAW GLASS CO., 348 U.S.
426, 431.  IT IS A PARTICULARLY UNRELIABLE AID IN STATUTORY
CONSTRUCTION UNLESS THE PREVIOUS INTERPRETATION HAD BEEN CLEARLY AND
OFFICIALLY PROMULGATED AND CONGRESS HAD BEEN SPECIFICALLY ADVISED OF
THAT INTERPRETATION IN CONNECTION WITH THE RE-ENACTMENT OF THE RELEVANT
STATUTORY PROVISION.  HIGGINS V. COMMISSIONER, 312 U.S. 212; SEE
GENERALLY, 1 DAVIS, ADMINISTRATIVE LAW SEC. 5.07.  HERE THERE WAS NO
OFFICIAL TREASURY REGULATION OR TREASURY DECISION CLEARLY ARTICULATING
THE THEORY THAT DEPRECIATION SHOULD BE ALLOWED IN THE YEAR OF
PROFITABLE SALE.  INDEED, AS INDICATED EARLIER, THE RELEVANT TREASURY
REGULATIONS SEEMED GENERALLY TO INDICATE QUITE THE OPPOSITE
CONCLUSION.  NOR IS THERE ANY INDICATION THAT ANYONE ASSERTED TO
CONGRESS DURING A TIME THAT IT WAS CONSIDERING RE-ENACTMENT OF THE
DEPRECIATION PROVISION THAT THE COMMISSIONER HAD EMBRACED A POSITION
THAT DEPRECIATION HAD TO BE ALLOWED ON PROPERTY IN THE YEAR THAT IT WAS
SOLD AT A PRICE IN EXCESS OF ITS ADJUSTED BASIS.  THE LEGISLATIVE
HISTORY AND VARIOUS REQUESTS MADE TO CONGRESS UPON WHICH THE MAJORITY
RELIES WERE DIRECTED TO THE CAPITAL GAIN PROVISIONS OF THE CODE, NOT
THE DEPRECIATION PROVISION.  AND, THERE ARE INDICATIONS THAT CONGRESS
INTENDED TO TREAT THE TWO PROVISIONS SEPARATELY.  SEE H.R. REP. NO.
749, 88TH CONG., 1ST SESS., 103 (1963); S. REP. NO. 830, 88TH CONG., 2D
SESS., 133 (1964).  FOR EXAMPLE, THE "UNDUE HARDSHIP" WHICH PROMPTED
CONGRESS TO ENACT SEC. 1231 WAS NO DOUBT THE HARDSHIP OF PAYING TAX ON
GAIN RESULTING FROM MANY YEARS OF APPRECIATION WHEN ALL OF THE GAIN IS
BUNCHED INTO THE YEAR OF SALE.  THE COMMISSIONER'S REFUSAL TO ALLOW
DEPRECIATION IN THE YEAR OF PROFITABLE SALE IS IN NO WAY INCONSISTENT
WITH THIS ATTEMPT BY CONGRESS TO ALLEVIATE HARDSHIPS RESULTING FROM THE
BUNCHING OF INCOME.  FURTHER, THE FACT THAT CONGRESS WAS ASKED IN THE
PRESIDENT'S 1961 TAX MESSAGE TO ENACT LEGISLATION TREATING GAIN UPON
THE SALE OF DEPRECIATED PROPERTY AS REGULAR INCOME TO THE EXTENT THAT
THE PROPERTY HAD PREVIOUSLY BEEN DEPRECIATED SHOULD NOT BE CONSTRUED AS
A REPRESENTATION TO CONGRESS THAT THE COMMISSIONER DID NOT HAVE THE
AUTHORITY HE NOW CLAIMS.  THAT RECOMMENDATION WAS GENERALLY CONCERNED
WITH EXCESSIVE DEPRECIATION IN YEARS "PREVIOUS" TO THE YEAR OF SALE, AN
ABUSE THAT THE COMMISSIONER HAS NEVER CLAIMED TO BE ABLE TO CORRECT
WITHOUT CONGRESSIONAL ASSISTANCE.  NONE OF THE EXAMPLES CITED TO
CONGRESS IN THIS MESSAGE ARE INCONSISTENT WITH THE COMMISSIONER'S
AUTHORITY TO DENY DEPRECIATION IN THE YEAR OF PROFITABLE SALE.  (FN15) 

IN 1962 AND AGAIN IN 1964 CONGRESS ENACTED CERTAIN RECAPTURE
PROVISIONS.  (FN16)  THESE PROVISIONS INDICATE A CONGRESSIONAL
ATTITUDE, CONSISTENT WITH THE COMMISSIONER'S POSITION, THAT
DEPRECIATION SHOULD NOT EXCEED ACTUAL, NET INVESTMENT AND THAT
EXCESSIVE DEPRECIATION SHOULD NOT BE PERMITTED TO CONVERT ORDINARY
INCOME INTO CAPITAL GAIN.  THE ONLY CONCRETE EVIDENCE THAT CONGRESS WAS
REALLY AWARE OF THE COMMISSIONER'S POSITION THAT DEPRECIATION SHOULD BE
DISALLOWED IN THE YEAR OF PROFITABLE SALE IS TO BE FOUND IN THE HOUSE
AND SENATE REPORTS CONSIDERING SEC. 1250, THE RECAPTURE PROVISION
DEALING WITH DEPRECIABLE REAL ESTATE.  I THINK THE COMMENTS CONTAINED
IN THOSE REPORTS ON THE POSITION TAKEN BY THE COMMISSIONER ARE HIGHLY
RELEVANT: 

"THE ENACTMENT OF THIS PROVISION IS NOT INTENDED TO AFFECT THE
QUESTION OF WHETHER ALL OR ANY PART OF A CLAIMED DEDUCTION FOR
DEPRECIATION IS IN FACT ALLOWABLE.  FOR EXAMPLE, SINCE IN THE YEAR REAL
PROPERTY IS SOLD THE ACTUAL VALUE OF THE PROPERTY IS KNOWN, IT HAS BEEN
HELD THAT DEPRECIATION DEDUCTIONS SHOULD NOT BE ALLOWED TO THE EXTENT
THEY REDUCE THE ADJUSTED BASIS OF THE PROPERTY BELOW THE ACTUAL AMOUNT
REALIZED.  THIS PROVISION, IN PROVIDING FOR ORDINARY INCOME TREATMENT
FOR CERTAIN ADDITIONAL DEPRECIATION, IS NOT INTENDED TO AFFECT THIS
HOLDING."  H.R. REP. NO. 749, 88TH CONG., 1ST SESS., P. 103 (1963); S.
REP. NO. 830, 88TH CONG., 2D SESS., P. 133 (1964). 

CONGRESS GAVE TO THE SECRETARY OF THE TREASURY OR HIS DELEGATE, NOT
TO THIS COURT, THE PRIMARY RESPONSIBILITY OF DETERMINING WHAT
CONSTITUTES A "REASONABLE" ALLOWANCE FOR DEPRECIATION.  WHEN THE
COMMISSIONER ADOPTS A RATIONAL POSITION THAT IS CONSISTENT WITH THE
PURPOSE BEHIND THE DEPRECIATION DEDUCTION, CONGRESSIONAL INTENT, AND
THE LANGUAGE OF THE STATUTE AND INTERPRETATIVE TREASURY REGULATIONS, I
WOULD AFFIRM THAT POSITION. 

FN1  THE HOUSE REPORT ON THE 1954 INTERNAL REVENUE CODE HAS DEFINED
DEPRECIATION AS "ALLOWANCES WHEREBY CAPITAL INVESTED IN AN ASSET IS
RECOVERED TAX-FREE OVER THE YEARS IT IS USED IN A BUSINESS."   H.R.
REP. NO. 1337, 83D CONG., 2D SESS., P. 22.  SIMILARLY, IN VIRGINIAN
HOTEL CO. V. HELVERING, 319 U.S. 523, THE COURT DISCUSSED DEPRECIATION
IN TERMS OF AN AMOUNT "WHICH, ALONG WITH SALVAGE VALUE, WILL REPLACE
THE ORIGINAL INVESTMENT OF THE PROPERTY  ...  ."  ID., AT 528.  THIS
COURT HAS, ON OTHER OCCASIONS, SPOKEN OF DEPRECIATION IN TERMS OF A
GRADUAL SALE OF THE DEPRECIABLE ASSET AS IT IS PHYSICALLY USED UP YEAR
BY YEAR IN THE TRADE OR BUSINESS.  SEE MASSEY MOTORS V. UNITED STATES,
364 U.S. 92, 104.  HOWEVER, THIS IS TO SAY THE SAME THING IN DIFFERENT
WORDS.  EVEN IF ONE VIEWS DEPRECIATION AS REPRESENTATIVE OF THE
PHYSICAL EXHAUSTION OF AN ASSET, IT IS NOT MEASURED IN TERMS OF NUTS
AND BOLTS BUT IN TERMS OF THE "FINANCIAL CONSEQUENCES TO THE TAXPAYER
OF THE SUBTLE EFFECTS OF TIME AND USE ON  ...  HIS CAPITAL ASSETS." 
DETROIT EDISON V. COMMISSIONER, 319 U.S. 98, 101.  INVESTMENT IS NOT TO
BE MEASURED IN TERMS OF ORIGINAL OR INITIAL COST, BUT IN TERMS OF "NET
INVESTMENT," DETROIT EDISON CO. V. COMMISSIONER, SUPRA, AT 103, OR
"ACTUAL COST," MASSEY MOTORS V. UNITED STATES, SUPRA, AT 106. 
ACCORDINGLY, SALVAGE VALUE, TREAS.  REG. SEC. 1.167(A)-1, AND OTHER
REIMBURSEMENTS RECEIVED BY THE TAXPAYER, DETROIT EDISON CO. V.
COMMISSIONER, SUPRA, MUST BE DEDUCTED FROM THE TAXPAYER'S INITIAL
INVESTMENT IN THE ASSET IN ORDER TO ARRIVE AT A DEPRECIABLE "NET
INVESTMENT."  I USE THE WORD "INVESTMENT" RATHER THAN "COST" BECAUSE
"COST" MAY HAVE SO MANY DIFFERENT MEANINGS, BOTH TO THE ACCOUNTANT AND
TO THE TAX LAWYER, AND SOME OF THOSE MEANINGS WOULD DO CONSIDERABLE
VIOLENCE TO THE CONGRESSIONAL PURPOSE FOR DEPRECIATION ALLOWANCES. 

FN2  USEFUL LIFE IS TO REFLECT THE REALITIES OF THE TAXPAYER'S ACTUAL
EXPERIENCE RATHER THAN A POSSIBLY UNREALISTIC CONCEPTUALIZED IDEA OF
INHERENT PHYSICAL LIFE.  MASSEY MOTORS V. UNITED STATES, SUPRA, N. 1. 

FN3 AS IS THE CASE WITH USEFUL LIFE, SALVAGE VALUE SHOULD REFLECT THE
ACTUALITIES OF THE SITUATION.  WHEN A DEPRECIATED ASSET IS SOLD THE
ECONOMIC REALITY IS THAT THE RESALE PRICE IS THE SALVAGE VALUE.  THIS
PRACTICAL DEFINITION OF SALVAGE VALUE WAS CLEARLY CONTEMPLATED IN
MASSEY MOTORS, SUPRA, N. 1, WHERE THE COURT TALKED IN TERMS OF "REAL
SALVAGE PRICE" AND "RESALE" VALUE.  ID., AT 105, 107.  IN HERTZ CORP.
V. UNITED STATES, 364 U.S. 122, 127, THE COURT SPOKE IN TERMS OF "THE
PRICE THAT WILL BE RECEIVED WHEN THE ASSET IS RETIRED."  SEE ALSO
TREAS. REG. SEC. 1.167(A)-1(C), WHICH SPEAKS IN TERMS OF AN AMOUNT
"REALIZABLE UPON SALE  ...  OF AN ASSET WHEN IT IS NO LONGER USEFUL IN
THE TAXPAYER'S TRADE OR BUSINESS OR IN THE PRODUCTION OF HIS INCOME
...  ." 

FN4  IT IS IN THIS ECONOMIC SENSE THAT THE COMMISSIONER MEANS THAT IT
"COST" FRIBOURG NOTHING TO USE THE S.S. JOSEPH FEUER IN 1957. 
OBVIOUSLY THE SHIP SUFFERED SOME PHYSICAL WEAR AND TEAR DURING USE IN
1957.  BUT MEASURED IN ECONOMIC TERMS FRIBOURG HAD ALREADY BEEN
COMPENSATED IN ADVANCE FOR THAT WEAR AND TEAR AS IT AFFECTED ITS NET
INVESTMENT IN THE SHIP BECAUSE EXCESSIVE DEPRECIATION DEDUCTIONS HAD
BEEN TAKEN IN THE EARLIER YEARS.  THE COMMISSIONER IS ASKING NOW ONLY
THAT FRIBOURG BE PREVENTED FROM DELIBERATELY COMPOUNDING THE ERROR
INNOCENTLY MADE IN EARLIER YEARS BY CONTINUING TO CLAIM DEPRECIATION
DEDUCTIONS AFTER IT KNEW ITS ENTIRE NET INVESTMENT IN THE S.S. JOSEPH
FEUER HAD ALREADY BEEN RECOVERED. 

FN5  THE TAX COURT'S CURRENT POSITION ON THE RELEVANCE OF PREDICTABLE
MARKET APPRECIATION AT THE TIME OF A DETERMINATION OF USEFUL LIFE AND
SALVAGE VALUE IS NOT ENTIRELY CLEAR.  COMPARE SMITH LEASING CO., 43
T.C. 37, WITH MACABE CO., 42 T.C. 1105. 

FN6  SIMILARLY, BECAUSE OUR SITUATION INVOLVES APPRECIATED MARKET
VALUES, WE ARE NOT NOW CONCERNED WITH THAT SENTENCE IN TREAS. REG. SEC.
1.167(A)-1(A) THAT READS, "THE ALLOWANCE SHALL NOT REFLECT AMOUNTS
REPRESENTING A MERE REDUCTION IN MARKET VALUE."  AT ANY RATE, THIS
SENTENCE MERELY REFLECTS THE CONGRESSIONAL INTENT THAT A TAXPAYER BE
PERMITTED TO RECOVER HIS NET INVESTMENT IN AN ASSET TO THE EXTENT THAT
THE NET INVESTMENT REPRESENTS "EXHAUSTION, WEAR AND TEAR, OR
OBSOLESCENCE." 

FN7  OF THE RULINGS CITED IN N. 5 OF THE MAJORITY OPINION, ONLY ONE,
G.C.M. 1597, VI-1 CUM. BULL.  71 (1927), INVOLVED A TAX YEAR AFTER
1921.  BOTH SUPREME COURT CASES CITED IN N. 4 OF THE MAJORITY OPINION,
UNITED STATES V. LUDEY, 274 U.S. 295, AND ELDORADO COAL & MINING CO. V.
MAGER, 255 U.S. 522, WERE CONCERNED WITH TAX YEARS PRIOR TO 1922. 
SIMILARLY, LOUIS KALB, 15 B.T.A. 865, AND EVEN REALTY CO., 1 B.T.A.
355, INVOLVED TAX YEARS PRIOR TO 1922. 

FN8  42 STAT. 232, SEC. 206(A). 

FN9  G.C.M. 1597, VI-1 CUM. BULL.  71 (1927).  SEE ALSO TREAS. REG.
SEC. 1.1238-1, EXAMPLE (1), WHICH WAS DESIGNED TO SHOW THE INTERACTION
BETWEEN SECS. 168 AND 1238, NOT THE ALLOWANCE OF DEPRECIATION OF SEC.
167.  THAT EXAMPLE HAS NOW BEEN RETROACTIVELY AMENDED TO THE DATE OF
ITS ORIGINAL ADOPTION IN 1951.  T.D. 6825, 1965-1 CUM. BULL.  366. 

FN10  BECKRIDGE CORP. V. COMMISSIONER, 129 F.2D 318; CLARK THREAD CO.
V. COMMISSIONER, 100 F.2D 257; KITTREDGE V. COMMISSIONER, 88 F.2D 632;
SEYMOUR MFG. CO. V. BURNET, 61 APP.  D.C. 22, 56 F.2D 494; HALL V.
UNITED STATES, 95 CT. CL. 539, 43 F. SUPP. 130; MAX EICHENBERG, 16
B.T.A. 1368; H.L. GATLIN, 19 CCH TAX CT. MEM. 131; P.H.&J.M. BROWN CO.,
18 CCH TAX CT. MEM. 708. 

FN11  SEE ALSO DUNCAN-HOMER REALTY CO., 6 B.T.A. 730 (1927), WHERE
THE BOARD OF TAX APPEALS SUSTAINED THE COMMISSIONER'S REFUSAL TO ALLOW
DEPRECIATION IN THE YEAR OF A PROFITABLE SALE. 

FN12  FRIBOURG NAVIGATION CO., INC. V. COMMISSIONER, 335 F.2D 15;
UNITED STATES V. MOTORLEASE CORP., 334 F.2D 617, PET. FOR CERT. FILED;
COHN V. UNITED STATES, 259 F.2D 371, KILLEBREW V. UNITED STATES, 234 F.
SUPP. 481. 

FN13  THE COMMISSIONER'S ACQUIESCENCE IN WIER LONG LEAF LUMBER CO., 9
T.C. 990, CAN HAVE NO CLEARER SIGNIFICANCE THAN HAS THE OPINION ITSELF,
WITH ITS ARGUABLY INCONSISTENT HOLDINGS.  AT ANY RATE, AT THE FRONT OF
EACH CUMULATIVE BULLETIN IT IS CLEARLY EXPLAINED THAT ACQUIESCENCES
"HAVE NONE OF THE FORCE OR EFFECT OF TREASURY DECISIONS AND DO NOT
COMMIT THE DEPARTMENT TO ANY INTERPRETATION OF THE LAW."  SEE DIXON V.
UNITED STATES, 381 U.S. 68.    FN14  SEE 26 U.S.C. SEC. 7805 (1964
ED.), WHICH GIVES AUTHORITY TO THE SECRETARY OF THE TREASURY OR HIS
DELEGATE TO "PRESCRIBE ALL NEEDFUL RULES AND REGULATIONS  ...  ,
INCLUDING ALL RULES AND REGULATIONS AS MAY BE NECESSARY BY REASON OF
ANY ALTERATION OF LAW IN RELATION TO INTERNAL REVENUE."   SUBSECTION
(B) OF THAT SECTION SAYS "THE SECRETARY OR HIS DELEGATE MAY PRESCRIBE
THE EXTENT, IF ANY, TO WHICH ANY RULING OR REGULATION, RELATING TO THE
INTERNAL REVENUE LAWS, SHALL BE APPLIED WITHOUT RETROACTIVE EFFECT." 

FN15  SIMILARLY, THE OTHER REQUESTS ADDRESSED TO CONGRESS MENTIONED
IN THE MAJORITY OPINION WERE CONCERNED WITH PROBLEMS BEYOND THE
REMEDIAL POWER OF THE COMMISSIONER TO DISALLOW DEPRECIATION IN THE YEAR
OF PROFITABLE SALE. 

FN16  26 U.S.C. SECS. 1245, 1250 (1964 ED.). 
..END :


















SOUTH CAROLINA V. KATZENBACH 383 U.S. 301 


NO. 22, ORIG.  ARGUED JANUARY 17-18, 1966.  - DECIDED MARCH 7, 1966 -
BILL OF COMPLAINT DISMISSED. 


INVOKING THE COURT'S ORIGINAL JURISDICTION UNDER ART. III, SEC 2 OF
THE CONSTITUTION, SOUTH CAROLINA FILED A BILL OF COMPLAINT SEEKING A
DECLARATION OF UNCONSTITUTIONALITY AS TO CERTAIN PROVISIONS OF THE
VOTING RIGHTS ACT OF 1965 AND AN INJUNCTION AGAINST THEIR ENFORCEMENT
BY DEFENDANT, THE ATTORNEY GENERAL.  THE ACT'S KEY FEATURES, AIMED AT
AREAS WHERE VOTING DISCRIMINATION HAS BEEN MOST FLAGRANT, ARE: (1) A
COVERAGE FORMULA OR "TRIGGERING MECHANISM" IN SEC 4(B) DETERMINING
APPLICABILITY OF ITS SUBSTANTIVE PROVISIONS; (2) PROVISION IN SEC 4(A)
FOR TEMPORARY SUSPENSION OF A STATE'S VOTING TESTS OR DEVICES; (3)
PROCEDURE IN SEC 5 FOR REVIEW OF NEW VOTING RULES; AND (4) A PROGRAM IN
SECS 6(B), 7, 9, AND 13(A) FOR USING FEDERAL EXAMINERS TO QUALIFY
APPLICANTS FOR REGISTRATION WHO ARE THEREAFTER ENTITLED TO VOTE IN ALL
ELECTIONS.  THESE REMEDIAL SECTIONS AUTOMATICALLY APPLY TO ANY STATE OR
ITS SUBDIVISION WHICH THE ATTORNEY GENERAL HAS DETERMINED MAINTAINED ON
NOVEMBER 1, 1964, A REGISTRATION OR VOTING "TEST OR DEVICE" (A
LITERACY, EDUCATIONAL, CHARACTER, OR VOUCHER REQUIREMENT AS DEFINED IN
SEC 4(C)) AND IN WHICH ACCORDING TO THE CENSUS DIRECTOR'S DETERMINATION
LESS THAN HALF THE VOTING-AGE RESIDENTS WERE REGISTERED OR VOTED IN THE
1964 PRESIDENTIAL ELECTION.  STATUTORY COVERAGE MAY BE TERMINATED BY A
DECLARATORY JUDGMENT OF A THREE-JUDGE DISTRICT OF COLUMBIA DISTRICT
COURT THAT FOR THE PRECEDING FIVE YEARS RACIALLY DISCRIMINATORY VOTING
TESTS OR DEVICES HAVE NOT BEEN USED.  NO PERSON IN A COVERED AREA MAY
BE DENIED VOTING RIGHTS BECAUSE OF FAILURE TO COMPLY WITH A TEST OR
DEVICE.  SEC 4(A).  FOLLOWING ADMINISTRATIVE DETERMINATIONS,
ENFORCEMENT WAS TEMPORARILY SUSPENDED OF SOUTH CAROLINA'S LITERACY TEST
AS WELL AS OF TESTS AND DEVICES IN CERTAIN OTHER AREAS.  THE ACT
FURTHER PROVIDES IN SEC 5 THAT DURING THE SUSPENSION PERIOD, A STATE OR
SUBDIVISION MAY NOT APPLY NEW VOTING RULES UNLESS THE ATTORNEY GENERAL
HAS INTERPOSED NO OBJECTION WITHIN 60 DAYS OF THEIR SUBMISSION TO HIM,
OR A THREE-JUDGE DISTRICT OF COLUMBIA DISTRICT COURT HAS ISSUED A
DECLARATORY JUDGMENT THAT SUCH RULES ARE NOT RACIALLY DISCRIMINATORY. 
SOUTH CAROLINA WISHES TO APPLY A RECENT AMENDMENT TO ITS VOTING LAWS
WITHOUT FOLLOWING THESE PROCEDURES.  IN ANY POLITICAL SUBDIVISION WHERE
TESTS OR DEVICES HAVE BEEN SUSPENDED, THE CIVIL SERVICE COMMISSION
SHALL APPOINT VOTING EXAMINERS WHENEVER THE ATTORNEY GENERAL HAS, AFTER
CONSIDERING SPECIFIED FACTORS, DULY CERTIFIED RECEIVING COMPLAINTS OF
OFFICIAL RACIAL VOTING DISCRIMINATION FROM AT LEAST 20 RESIDENTS OR
THAT THE EXAMINERS' APPOINTMENT IS OTHERWISE NECESSARY UNDER THE
FIFTEENTH AMENDMENT.  SEC 6(B).  EXAMINERS ARE TO TRANSMIT TO THE
APPROPRIATE OFFICIALS THE NAMES OF APPLICANTS THEY FIND QUALIFIED; AND
SUCH PERSONS MAY VOTE IN ANY ELECTION AFTER 45 DAYS FOLLOWING
TRANSMISSION OF THEIR NAMES.  SEC 7(B).  REMOVAL BY THE EXAMINERS OF
NAMES FROM VOTING LISTS IS PROVIDED ON LOSS OF ELIGIBILITY OR ON
SUCCESSFUL CHALLENGE UNDER PRESCRIBED PROCEDURES.  SEC 7(D).  THE USE
OF EXAMINERS IS TERMINATED IF REQUESTED BY THE ATTORNEY GENERAL OR THE
POLITICAL SUBDIVISION HAS OBTAINED A DECLARATORY JUDGMENT AS SPECIFIED
IN SEC 13(A).  FOLLOWING CERTIFICATION BY THE ATTORNEY GENERAL, FEDERAL
EXAMINERS WERE APPOINTED IN TWO SOUTH CAROLINA COUNTIES AS WELL AS
ELSEWHERE IN OTHER STATES.  SUBSIDIARY CURES FOR PERSISTENT VOTING
DISCRIMINATION AND OTHER SPECIAL PROVISIONS ARE ALSO CONTAINED IN THE
ACT.  IN ADDITION TO A GENERAL ASSAULT ON THE ACT AS UNCONSTITUTIONALLY
ENCROACHING ON STATES' RIGHTS, SPECIFIC CONSTITUTIONAL CHALLENGES BY
PLAINTIFF AND CERTAIN AMICI CURIAE ARE:  THE COVERAGE FORMULA VIOLATES
THE PRINCIPLE OF EQUALITY BETWEEN THE STATES, DENIES DUE PROCESS
THROUGH AN INVALID PRESUMPTION, BARS JUDICIAL REVIEW OF ADMINISTRATIVE
FINDINGS, IS A BILL OF ATTAINDER, AND LEGISLATIVELY ADJUDICATES GUILT;
THE REVIEW OF NEW VOTING RULES INFRINGES ART. III BY DIRECTING THE
DISTRICT COURT TO ISSUE ADVISORY OPINIONS; THE ASSIGNMENT OF FEDERAL
EXAMINERS VIOLATES DUE PROCESS BY FORECLOSING JUDICIAL REVIEW OF
ADMINISTRATIVE FINDINGS AND IMPAIRS THE SEPARATION OF POWERS BY GIVING
THE ATTORNEY GENERAL JUDICIAL FUNCTIONS; THE CHALLENGE PROCEDURE DENIES
DUE PROCESS ON ACCOUNT OF ITS SPEED; AND PROVISIONS FOR ADJUDICATION IN
THE DISTRICT OF COLUMBIA ABRIDGE DUE PROCESS BY LIMITING LITIGATION TO
A DISTANT FORUM.  HELD: 

1.  THIS COURT'S JUDICIAL REVIEW DOES NOT COVER PORTIONS OF THE
VOTING RIGHTS ACT OF 1965 NOT CHALLENGED BY PLAINTIFF; NOR DOES IT
EXTEND TO THE ACT'S CRIMINAL PROVISIONS, AS TO WHICH SOUTH CAROLINA'S
CHALLENGE IS PREMATURE.  PP. 316-317. 

2.  THE SECTIONS OF THE ACT PROPERLY BEFORE THIS COURT ARE A VALID
EFFECTUATION OF THE FIFTEENTH AMENDMENT.  PP. 308-337. 

(A)  THE ACT'S VOLUMINOUS LEGISLATIVE HISTORY DISCLOSES UNREMITTING
AND INGENIOUS DEFIANCE IN CERTAIN PARTS OF THE COUNTRY OF THE FIFTEENTH
AMENDMENT (SEE PARAGRAPHS (B)-(D), INFRA) WHICH CONGRESS CONCLUDED
CALLED FOR STERNER AND MORE ELABORATE MEASURES THAN THOSE PREVIOUSLY
USED.  P. 309. 

(B) BEGINNING IN 1890, A FEW YEARS BEFORE REPEAL OF MOST OF THE
LEGISLATION TO ENFORCE THE FIFTEENTH AMENDMENT, ALABAMA, GEORGIA,
LOUISIANA, MISSISSIPPI, NORTH CAROLINA, SOUTH CAROLINA AND VIRGINIA
ENACTED TESTS, STILL IN USE, SPECIFICALLY DESIGNED TO PREVENT NEGROES
FROM VOTING WHILE PERMITTING WHITE PERSONS TO VOTE.  PP. 310-311. 

(C)  A VARIETY OF METHODS WAS USED THEREAFTER TO KEEP NEGROES FROM
VOTING, ONE OF THE PRINCIPAL MEANS BEING THROUGH RACIALLY
DISCRIMINATORY APPLICATION OF VOTING TESTS.  PP.  311-313. 

(D)  CASE-BY-CASE LITIGATION AGAINST VOTING DISCRIMINATION UNDER THE
CIVIL RIGHTS ACTS OF 1957, 1960, AND 1964, HAS NOT APPRECIABLY
INCREASED NEGRO REGISTRATION.  VOTING SUITS HAVE BEEN ONEROUS TO
PREPARE, PROTRACTED, AND WHERE SUCCESSFUL HAVE OFTEN BEEN FOLLOWED BY A
SHIFT IN DISCRIMINATORY DEVICES, DEFIANCE OR EVASION OF COURT ORDERS. 
PP. 313-315. 

(E)  A STATE IS NOT A "PERSON" WITHIN THE MEANING OF THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT; NOR DOES IT HAVE STANDING TO INVOKE THE
BILL OF ATTAINDER CLAUSE OF ART. I OR THE PRINCIPLE OF SEPARATION OF
POWERS, WHICH EXIST ONLY TO PROTECT PRIVATE INDIVIDUALS OR GROUPS.  PP.
323-324. 

(F)  CONGRESS, AS AGAINST THE RESERVED POWERS OF THE STATES, MAY USE
ANY RATIONAL MEANS TO EFFECTUATE THE CONSTITUTIONAL PROHIBITION OF
RACIAL VOTING DISCRIMINATION.  P. 324. 

(G)  THE FIFTEENTH AMENDMENT, WHICH IS SELF-EXECUTING, SUPERSEDES
CONTRARY EXERTIONS OF STATE POWER, AND ITS ENFORCEMENT IS NOT CONFINED
TO JUDICIAL INVALIDATION OF RACIALLY DISCRIMINATORY STATE STATUTES AND
PROCEDURES OR TO GENERAL LEGISLATIVE PROHIBITIONS AGAINST VIOLATIONS OF
THE AMENDMENT.  PP. 325, 327. 

(H)  CONGRESS, WHOSE POWER TO ENFORCE THE FIFTEENTH AMENDMENT HAS
REPEATEDLY BEEN UPHELD IN THE PAST, IS FREE TO USE WHATEVER MEANS ARE
APPROPRIATE TO CARRY OUT THE OBJECTS OF THE CONSTITUTION.  MCCULLOCH V.
MARYLAND, 4 WHEAT.  316; EX PARTE VIRGINIA, 100 U.S. 339, 345-346.  PP.
326-327. 

(I)  HAVING DETERMINED CASE-BY-CASE LITIGATION INADEQUATE TO DEAL
WITH RACIAL VOTING DISCRIMINATION, CONGRESS HAS AMPLE AUTHORITY TO
PRESCRIBE REMEDIES NOT REQUIRING PRIOR ADJUDICATION.   P. 328. 

(J)  CONGRESS IS WELL WITHIN ITS POWERS IN FOCUSING UPON THE
GEOGRAPHIC AREAS WHERE SUBSTANTIAL RACIAL VOTING DISCRIMINATION HAD
OCCURRED.  PP. 328-329. 

(K)  CONGRESS HAD RELIABLE EVIDENCE OF VOTING DISCRIMINATION IN A
GREAT MAJORITY OF THE AREAS COVERED BY SEC 4(B) OF THE ACT AND IS
WARRANTED IN INFERRING A SIGNIFICANT DANGER OF RACIAL VOTING
DISCRIMINATION IN THE FEW OTHER AREAS TO WHICH THE FORMULA IN SEC 4(B)
APPLIES.  PP. 329-330. 

(L)  THE COVERAGE FORMULA IS RATIONAL IN THEORY SINCE TESTS OR
DEVICES HAVE SO LONG BEEN USED FOR DISENFRANCHISEMENT AND A LOWER
VOTING RATE OBVIOUSLY RESULTS FROM SUCH DISENFRANCHISEMENT.  P. 330. 

(M)  THE COVERAGE FORMULA IS RATIONAL AS BEING AIMED AT AREAS WHERE
WIDESPREAD DISCRIMINATION HAS EXISTED THROUGH MISUSE OF TESTS OR
DEVICES EVEN THOUGH IT EXCLUDES CERTAIN AREAS WHERE THERE IS VOTING
DISCRIMINATION THROUGH OTHER MEANS.  THE ACT, MOREOVER, STRENGTHENS
EXISTING REMEDIES FOR SUCH DISCRIMINATION IN THOSE OTHER AREAS.  PP.
330-331. 

(N)  THE PROVISION FOR TERMINATION AT THE BEHEST OF THE STATES OF SEC
4(B) COVERAGE ADEQUATELY DEALS WITH POSSIBLE OVERBREADTH; NOR IS THE
BURDEN OF PROOF IMPOSED ON THE STATES UNREASONABLE.  PP. 331-332. 

(O)  LIMITING LITIGATION TO A SINGLE COURT IN THE DISTRICT OF
COLUMBIA IS A PERMISSIBLE EXERCISE OF POWER UNDER ART. III, SEC 1, OF
THE CONSTITUTION, PREVIOUSLY EXERCISED BY CONGRESS ON OTHER OCCASIONS. 
PP. 331-332. 

(P)  THE ACT'S BAR OF JUDICIAL REVIEW OF FINDINGS OF THE ATTORNEY
GENERAL AND CENSUS DIRECTOR AS TO OBJECTIVE DATA IS NOT UNREASONABLE. 
THIS COURT HAS SANCTIONED WITHDRAWAL OF JUDICIAL REVIEW OF
ADMINISTRATIVE DETERMINATIONS IN NUMEROUS OTHER SITUATIONS.  PP. 332
333. 

(Q) CONGRESS HAS POWER TO SUSPEND LITERACY TESTS, IT HAVING FOUND
THAT SUCH TESTS WERE USED FOR DISCRIMINATORY PURPOSES IN MOST OF THE
STATES COVERED; THEIR CONTINUANCE, EVEN IF FAIRLY ADMINISTERED, WOULD
FREEZE THE EFFECT OF PAST DISCRIMINATION; AND RE-REGISTRATION OF ALL
VOTERS WOULD BE TOO HARSH AN ALTERNATIVE.  SUCH STATES CANNOT SINCERELY
COMPLAIN OF ELECTORAL DILUTION BY NEGRO ILLITERATES WHEN THEY LONG
PERMITTED WHITE ILLITERATES TO VOTE.  P. 334. 

(R)  CONGRESS IS WARRANTED IN SUSPENDING, PENDING FEDERAL SCRUTINY,
NEW VOTING REGULATIONS IN VIEW OF THE WAY IN WHICH SOME STATES HAVE
PREVIOUSLY EMPLOYED NEW RULES TO CIRCUMVENT ADVERSE FEDERAL COURT
DECREES.  P. 335. 

(S)  THE PROVISION WHEREBY A STATE WHOSE VOTING LAWS HAVE BEEN
SUSPENDED UNDER SEC 4(A) MUST OBTAIN JUDICIAL REVIEW OF AN AMENDMENT TO
SUCH LAWS BY THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PRESENTS A
"CONTROVERSY" UNDER ART. III OF THE CONSTITUTION AND THEREFORE DOES NOT
INVOLVE AN ADVISORY OPINION CONTRAVENING THAT PROVISION.  P. 335. 

(T)  THE PROCEDURE FOR APPOINTING FEDERAL EXAMINERS IS AN APPROPRIATE
CONGRESSIONAL RESPONSE TO THE LOCAL TACTICS USED TO DEFY OR EVADE
FEDERAL COURT DECREES.  THE CHALLENGE PROCEDURES CONTAIN PRECAUTIONARY
FEATURES AGAINST ERROR OR FRAUD AND ARE AMPLY WARRANTED IN VIEW OF
CONGRESS' KNOWLEDGE OF HARASSING CHALLENGING TACTICS AGAINST REGISTERED
NEGROES.  P. 336. 

(U)  SECTION 6(B) HAS ADEQUATE STANDARDS TO GUIDE DETERMINATION BY
THE ATTORNEY GENERAL IN HIS SELECTION OF AREAS WHERE FEDERAL EXAMINERS
ARE TO BE APPOINTED; AND THE TERMINATION PROCEDURES IN SEC 13(B)
PROVIDE FOR INDIRECT JUDICIAL REVIEW.  PP. 336-337. 

SOUTH CAROLINA V. KATZENBACH, ATTORNEY GENERAL. 

ON BILL OF COMPLAINT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

BY LEAVE OF THE COURT, 382 U.S. 898, SOUTH CAROLINA HAS FILED A BILL
OF COMPLAINT, SEEKING A DECLARATION THAT SELECTED PROVISIONS OF THE
VOTING RIGHTS ACT OF 1965 (FN1) VIOLATE THE FEDERAL CONSTITUTION, AND
ASKING FOR AN INJUNCTION AGAINST ENFORCEMENT OF THESE PROVISIONS BY THE
ATTORNEY GENERAL.  ORIGINAL JURISDICTION IS FOUNDED ON THE PRESENCE OF
A CONTROVERSY BETWEEN A STATE AND A CITIZEN OF ANOTHER STATE UNDER ART.
III, SEC 2, OF THE CONSTITUTION.  SEE GEORGIA V. PENNSYLVANIA R. CO.,
324 U.S. 439.  BECAUSE NO ISSUES OF FACT WERE RAISED IN THE COMPLAINT,
AND BECAUSE OF SOUTH CAROLINA'S DESIRE TO OBTAIN A RULING PRIOR TO ITS
PRIMARY ELECTIONS IN JUNE 1966, WE DISPENSED WITH APPOINTMENT OF A
SPECIAL MASTER AND EXPEDITED OUR HEARING OF THE CASE. 

RECOGNIZING THAT THE QUESTIONS PRESENTED WERE OF URGENT CONCERN TO
THE ENTIRE COUNTRY, WE INVITED ALL OF THE STATES TO PARTICIPATE IN THIS
PROCEEDING AS FRIENDS OF THE COURT.  A MAJORITY RESPONDED BY SUBMITTING
OR JOINING IN BRIEFS ON THE MERITS, SOME SUPPORTING SOUTH CAROLINA AND
OTHERS THE ATTORNEY GENERAL.  (FN2)  SEVEN OF THESE STATES ALSO
REQUESTED AND RECEIVED PERMISSION TO ARGUE THE CASE ORALLY AT OUR
HEARING.  WITHOUT EXCEPTION, DESPITE THE EMOTIONAL OVERTONES OF THE
PROCEEDING, THE BRIEFS AND ORAL ARGUMENTS WERE TEMPERATE, LAWYERLIKE
AND CONSTRUCTIVE.  ALL VIEWPOINTS ON THE ISSUES HAVE BEEN FULLY
DEVELOPED, AND THIS ADDITIONAL ASSISTANCE HAS BEEN MOST HELPFUL TO THE
COURT. 

THE VOTING RIGHTS ACT WAS DESIGNED BY CONGRESS TO BANISH THE BLIGHT
OF RACIAL DISCRIMINATION IN VOTING, WHICH HAS INFECTED THE ELECTORAL
PROCESS IN PARTS OF OUR COUNTRY FOR NEARLY A CENTURY.  THE ACT CREATES
STRINGENT NEW REMEDIES FOR VOTING DISCRIMINATION WHERE IT PERSISTS ON A
PERVASIVE SCALE, AND IN ADDITION THE STATUTE STRENGTHENS EXISTING
REMEDIES FOR POCKETS OF VOTING DISCRIMINATION ELSEWHERE IN THE
COUNTRY.  CONGRESS ASSUMED THE POWER TO PRESCRIBE THESE REMEDIES FROM
SEC 2 OF THE FIFTEENTH AMENDMENT, WHICH AUTHORIZES THE NATIONAL
LEGISLATURE TO EFFECTUATE BY "APPROPRIATE" MEASURES THE CONSTITUTIONAL
PROHIBITION AGAINST RACIAL DISCRIMINATION IN VOTING.  WE HOLD THAT THE
MEANS FOR CARRYING OUT CONGRESS' CONSTITUTIONAL RESPONSIBILITIES AND
ARE CONSONANT WITH ALL OTHER PROVISIONS OF THE CONSTITUTION.  WE
THEREFORE DENY SOUTH CAROLINA'S REQUEST THAT ENFORCEMENT OF THESE

                                        I. 

THE CONSTITUTIONAL PROPRIETY OF THE VOTING RIGHTS ACT OF 1965 MUST BE
JUDGED WITH REFERENCE TO THE HISTORICAL EXPERIENCE WHICH IT REFLECTS. 
BEFORE ENACTING THE MEASURE, CONGRESS EXPLORED WITH GREAT CARE THE
PROBLEM OF RACIAL DISCRIMINATION IN VOTING.  THE HOUSE AND SENATE
COMMITTEES ON THE JUDICIARY EACH HELD HEARINGS FOR NINE DAYS AND
RECEIVED TESTIMONY FROM A TOTAL OF 67 WITNESSES.  (FN3)  MORE THAN
THREE FULL DAYS WERE CONSUMED DISCUSSING THE BILL ON THE FLOOR OF THE
HOUSE, WHILE THE DEBATE IN THE SENATE COVERED 26 DAYS IN ALL.  (FN4)
AT THE CLOSE OF THESE DELIBERATIONS, THE VERDICT OF BOTH CHAMBERS WAS
OVERWHELMING.  THE HOUSE APPROVED THE BILL BY A VOTE OF 328-74, AND THE
MEASURE PASSED THE SENATE BY A MARGIN OF 79-18. 

TWO POINTS EMERGE VIVIDLY FROM THE VOLUMINOUS LEGISLATIVE HISTORY OF
THE ACT CONTAINED IN THE COMMITTEE HEARINGS AND FLOOR DEBATES.  FIRST:
CONGRESS FELT ITSELF CONFRONTED BY AN INSIDIOUS AND PERVASIVE EVIL
WHICH HAD BEEN PERPETUATED IN CERTAIN PARTS OF OUR COUNTRY THROUGH
UNREMITTING AND INGENIOUS DEFIANCE OF THE CONSTITUTION.  SECOND:
CONGRESS CONCLUDED THAT THE UNSUCCESSFUL REMEDIES WHICH IT HAD
PRESCRIBED IN THE PAST WOULD HAVE TO BE REPLACED BY STERNER AND MORE
ELABORATE MEASURES IN ORDER TO SATISFY THE CLEAR COMMANDS OF THE
FIFTEENTH AMENDMENT.  WE PAUSE HERE TO SUMMARIZE THE MAJORITY REPORTS
OF THE HOUSE AND SENATE COMMITTEES, WHICH DOCUMENT IN CONSIDERABLE
DETAIL THE FACTUAL BASIS FOR THESE REACTIONS BY CONGRESS.  (FN5)  SEE
H.R. REP. NO. 439, 89TH CONG., 1ST SESS., 8-16 (HEREINAFTER CITED AS
HOUSE REPORT); S. REP. NO. 162, PT. 3, 89TH CONG., 1ST SESS., 3-16
(HEREINAFTER CITED AS SENATE REPORT). 

THE FIFTEENTH AMENDMENT TO THE CONSTITUTION WAS RATIFIED IN 1870. 
PROMPTLY THEREAFTER CONGRESS PASSED THE ENFORCEMENT ACT OF 1870, (FN6)
WHICH MADE IT A CRIME FOR PUBLIC OFFICERS AND PRIVATE PERSONS TO
OBSTRUCT EXERCISE OF THE RIGHT TO VOTE.  THE STATUTE WAS AMENDED IN THE
FOLLOWING YEAR (FN7) TO PROVIDE FOR DETAILED FEDERAL SUPERVISION OF THE
ELECTORAL PROCESS, FROM REGISTRATION TO THE CERTIFICATION OF RETURNS. 
AS THE YEARS PASSED AND FERVOR FOR RACIAL EQUALITY WANED, ENFORCEMENT
OF THE LAWS BECAME SPOTTY AND INEFFECTIVE, AND MOST OF THEIR PROVISIONS
WERE REPEALED IN 1894.  (FN8) THE REMNANTS HAVE HAD LITTLE SIGNIFICANCE
IN THE RECENTLY RENEWED BATTLE AGAINST VOTING DISCRIMINATION. 

MEANWHILE, BEGINNING IN 1890, THE STATES OF ALABAMA, GEORGIA,
LOUISIANA, MISSISSIPPI, NORTH CAROLINA, SOUTH CAROLINA, AND VIRGINIA
ENACTED TESTS STILL IN USE WHICH WERE SPECIFICALLY DESIGNED TO PREVENT
NEGROES FROM VOTING.  (FN9)  TYPICALLY, THEY MADE THE ABILITY TO READ
AND WRITE A REGISTRATION QUALIFICATION AND ALSO REQUIRED COMPLETION OF
A REGISTRATION FORM.  THESE LAWS WERE BASED ON THE FACT THAT AS OF 1890
IN EACH OF THE NAMED STATES, MORE THAN TWO-THIRDS OF THE ADULT NEGROES
WERE ILLITERATE WHILE LESS THAN ONE-QUARTER OF THE ADULT WHITES WERE
UNABLE TO READ OR WRITE.  (FN10)  AT THE SAME TIME, ALTERNATE TESTS
WERE PRESCRIBED IN ALL OF THE NAMED STATES TO ASSURE THAT WHITE
ILLITERATES WOULD NOT BE DEPRIVED OF THE FRANCHISE.  THESE INCLUDED
GRANDFATHER CLAUSES, PROPERTY QUALIFICATIONS, "GOOD CHARACTER" TESTS,
AND THE REQUIREMENT THAT REGISTRANTS "UNDERSTAND" OR "INTERPRET"
CERTAIN MATTER. 

THE COURSE OF SUBSEQUENT FIFTEENTH AMENDMENT LITIGATION IN THIS COURT
DEMONSTRATES THE VARIETY AND PERSISTENCE OF THESE AND SIMILAR
INSTITUTIONS DESIGNED TO DEPRIVE NEGROES OF THE RIGHT TO VOTE. 
GRANDFATHER CLAUSES WERE INVALIDATED IN GUINN V. UNITED STATES, 238
U.S. 347, AND MYERS V. ANDERSON, 238 U.S. 368.  PROCEDURAL HURDLES WERE
STRUCK DOWN IN LANE V. WILSON, 307 U.S. 268.  THE WHITE PRIMARY WAS
OUTLAWED IN SMITH V. ALLWRIGHT, 321 U.S. 649, AND TERRY V. ADAMS, 345
U.S. 461.  IMPROPER CHALLENGES WERE NULLIFIED IN UNITED STATES V.
THOMAS, 362 U.S. 58.  RACIAL GERRYMANDERING WAS FORBIDDEN BY GOMILLION
V. LIGHTFOOT, 364 U.S. 339.  FINALLY, DISCRIMINATORY APPLICATION OF
VOTING TESTS WAS CONDEMNED IN SCHNELL V. DAVIS, 336 U.S. 933; ALABAMA
V. UNITED STATES, 371 U.S. 37; AND LOUISIANA V. UNITED STATES, 380 U.S.
145. 

ACCORDING TO THE EVIDENCE IN RECENT JUSTICE DEPARTMENT VOTING SUITS,
THE LATTER STRATAGEM IS NOW THE PRINCIPAL METHOD USED TO BAR NEGROES
FROM THE POLLS.  DISCRIMINATORY ADMINISTRATION OF VOTING QUALIFICATIONS
HAS BEEN FOUND IN ALL EIGHT ALABAMA CASES, IN ALL NINE LOUISIANA CASES,
AND IN ALL NINE MISSISSIPPI CASES WHICH HAVE GONE TO FINAL JUDGMENT. 
(FN11)  MOREOVER, IN ALMOST ALL OF THESE CASES, THE COURTS HAVE HELD
THAT THE DISCRIMINATION WAS PURSUANT TO A WIDESPREAD "PATTERN OR
PRACTICE."  WHITE APPLICANTS FOR REGISTRATION HAVE OFTEN BEEN EXCUSED
ALTOGETHER FROM THE LITERACY AND UNDERSTANDING TESTS OR HAVE BEEN GIVEN
EASY VERSIONS, HAVE RECEIVED EXTENSIVE HELP FROM VOTING OFFICIALS, AND
HAVE BEEN REGISTERED DESPITE SERIOUS ERRORS IN THEIR ANSWERS.  (FN12)
NEGROES, ON THE OTHER HAND, HAVE TYPICALLY BEEN REQUIRED TO PASS
DIFFICULT VERSIONS OF ALL THE TESTS, WITHOUT ANY OUTSIDE ASSISTANCE AND
WITHOUT THE SLIGHTEST ERROR.  (FN13)  THE GOOD-MORALS REQUIREMENT IS SO
VAGUE AND SUBJECTIVE THAT IT HAS CONSTITUTED AN OPEN INVITATION TO
ABUSE AT THE HANDS OF VOTING OFFICIALS.  (FN14)  NEGROES OBLIGED TO
OBTAIN VOUCHERS FROM REGISTERED VOTERS HAVE FOUND IT VIRTUALLY
IMPOSSIBLE TO COMPLY IN AREAS WHERE ALMOST NO NEGROES ARE ON THE
ROLLS.  (FN15) 

IN RECENT YEARS, CONGRESS HAS REPEATEDLY TRIED TO COPE WITH THE
PROBLEM BY FACILITATING CASE-BY-CASE LITIGATION AGAINST VOTING
DISCRIMINATION.  THE CIVIL RIGHTS ACT OF 1957 (FN16) AUTHORIZED THE
ATTORNEY GENERAL TO SEEK INJUNCTIONS AGAINST PUBLIC AND PRIVATE
INTERFERENCE WITH THE RIGHT TO VOTE ON RACIAL GROUNDS.  PERFECTING
AMENDMENTS IN THE CIVIL RIGHTS ACT OF 1960 (FN17) PERMITTED THE JOINDER
OF STATES AS PARTIES DEFENDANT, GAVE THE ATTORNEY GENERAL ACCESS TO
LOCAL VOTING RECORDS, AND AUTHORIZED COURTS TO REGISTER VOTERS IN AREAS
OF SYSTEMATIC DISCRIMINATION.  TITLE I OF THE CIVIL RIGHTS ACT OF 1964
(FN18) EXPEDITED THE HEARING OF VOTING CASES BEFORE THREE-JUDGE COURTS
AND OUTLAWED SOME OF THE TACTICS USED TO DISQUALIFY NEGROES FROM VOTING
IN FEDERAL ELECTIONS. 

DESPITE THE EARNEST EFFORTS OF THE JUSTICE DEPARTMENT AND OF MANY
FEDERAL JUDGES, THESE NEW LAWS HAVE DONE LITTLE TO CURE THE PROBLEM OF
VOTING DISCRIMINATION.  ACCORDING TO ESTIMATES BY THE ATTORNEY GENERAL
DURING HEARINGS ON THE ACT, REGISTRATION OF VOTING-AGE NEGROES IN
ALABAMA ROSE ONLY FROM 14.2% TO 19.4% BETWEEN 1958 AND 1964; IN
LOUISIANA IT BARELY INCHED AHEAD FROM 31.7% TO 31.8% BETWEEN 1956 AND
1965; AND IN MISSISSIPPI IT INCREASED ONLY FROM 4.4% TO 6.4% BETWEEN
1954 AND 1964.   IN EACH INSTANCE, REGISTRATION OF VOTING-AGE WHITES
RAN ROUGHLY 50 PERCENTAGE POINTS OR MORE AHEAD OF NEGRO REGISTRATION. 

THE PREVIOUS LEGISLATION HAS PROVED INEFFECTIVE FOR A NUMBER OF
REASONS.  VOTING SUITS ARE UNUSUALLY ONEROUS TO PREPARE, SOMETIMES
REQUIRING AS MANY AS 6,000 MANHOURS SPENT COMBING THROUGH REGISTRATION
RECORDS IN PREPARATION FOR TRIAL.  LITIGATION HAS BEEN EXCEEDINGLY
SLOW, IN PART BECAUSE OF THE AMPLE OPPORTUNITIES FOR DELAY AFFORDED
VOTING OFFICIALS AND OTHERS INVOLVED IN THE PROCEEDINGS.  EVEN WHEN
FAVORABLE DECISIONS HAVE FINALLY BEEN OBTAINED, SOME OF THE STATES
AFFECTED HAVE MERELY SWITCHED TO DISCRIMINATORY DEVICES NOT COVERED BY
THE FEDERAL DECREES OR HAVE ENACTED DIFFICULT NEW TESTS DESIGNED TO
PROLONG THE EXISTING DISPARITY BETWEEN WHITE AND NEGRO REGISTRATION. 
(FN19)  ALTERNATIVELY, CERTAIN LOCAL OFFICIALS HAVE DEFIED AND EVADED
COURT ORDERS OR HAVE SIMPLY CLOSED THEIR REGISTRATION OFFICES TO FREEZE
THE VOTING ROLLS.  (FN20)  THE PROVISION OF THE 1960 LAW AUTHORIZING
REGISTRATION BY FEDERAL OFFICERS HAS HAD LITTLE IMPACT ON LOCAL
MALADMINISTRATION BECAUSE OF ITS PROCEDURAL COMPLEXITIES. 

DURING THE HEARINGS AND DEBATES ON THE ACT, SELMA, ALABAMA, WAS
REPEATEDLY REFERRED TO AS THE PRE-EMINENT EXAMPLE OF THE
INEFFECTIVENESS OF EXISTING LEGISLATION.  IN DALLAS COUNTY, OF WHICH
SELMA IS THE SEAT, THERE WERE FOUR YEARS OF LITIGATION BY THE JUSTICE
DEPARTMENT AND TWO FINDINGS BY THE FEDERAL COURTS OF WIDESPREAD VOTING
DISCRIMINATION.  YET IN THOSE FOUR YEARS, NEGRO REGISTRATION ROSE ONLY
FROM 156 TO 383, ALTHOUGH THERE ARE APPROXIMATELY 15,000 NEGROES OF
VOTING AGE IN THE COUNTY.  ANY POSSIBILITY THAT THESE FIGURES WERE
ATTRIBUTABLE TO POLITICAL APATHY WAS DISPELLED BY THE PROTEST
DEMONSTRATIONS IN SELMA IN THE EARLY MONTHS OF 1965.  THE HOUSE
COMMITTEE ON THE JUDICIARY SUMMED UP THE REACTION OF CONGRESS TO THESE
DEVELOPMENTS IN THE FOLLOWING WORDS: 

"THE LITIGATION IN DALLAS COUNTY TOOK MORE THAN 4 YEARS TO OPEN THE
DOOR TO THE EXERCISE OF CONSTITUTIONAL RIGHTS CONFERRED ALMOST A
CENTURY AGO.  THE PROBLEM ON A NATIONAL SCALE IS THAT THE DIFFICULTIES
EXPERIENCED IN SUITS IN DALLAS COUNTY HAVE BEEN ENCOUNTERED OVER AND
OVER AGAIN UNDER EXISTING VOTING LAWS.  FOUR YEARS IS TOO LONG.  THE
BURDEN IS TOO HEAVY - THE WRONG TO OUR CITIZENS IS TOO SERIOUS - THE
DAMAGE TO OUR NATIONAL CONSCIENCE IS TOO GREAT NOT TO ADOPT MORE
EFFECTIVE MEASURES THAN EXIST TODAY. 

"SUCH IS THE ESSENTIAL JUSTIFICATION FOR THE PENDING BILL."  HOUSE
REPORT 11. 

                                      II. 

THE VOTING RIGHTS ACT OF 1965 REFLECTS CONGRESS' FIRM INTENTION TO
RID THE COUNTRY OF RACIAL DISCRIMINATION IN VOTING.  (FN21)  THE HEART
OF THE ACT IS A COMPLEX SCHEME OF STRINGENT REMEDIES AIMED AT AREAS
WHERE VOTING DISCRIMINATION HAS BEEN MOST FLAGRANT.  SECTION 4(A)-(D)
LAYS DOWN A FORMULA DEFINING THE STATES AND POLITICAL SUBDIVISIONS TO
WHICH THESE NEW REMEDIES APPLY.  THE FIRST OF THE REMEDIES, CONTAINED
IN SEC 4(A), IS THE SUSPENSION OF LITERACY TESTS AND SIMILAR VOTING
QUALIFICATIONS FOR A PERIOD OF FIVE YEARS FROM THE LAST OCCURRENCE OF
SUBSTANTIAL VOTING DISCRIMINATION.  SECTION 5 PRESCRIBES A SECOND
REMEDY, THE SUSPENSION OF ALL NEW VOTING REGULATIONS PENDING REVIEW BY
FEDERAL AUTHORITIES TO DETERMINE WHETHER THEIR USE WOULD PERPETUATE
VOTING DISCRIMINATION.  THE THIRD REMEDY, COVERED IN SECS 6(B), 7, 9,
AND 13(A), IS THE ASSIGNMENT OF FEDERAL EXAMINERS ON CERTIFICATION BY
THE ATTORNEY GENERAL TO LIST QUALIFIED APPLICANTS WHO ARE THEREAFTER
ENTITLED TO VOTE IN ALL ELECTIONS. 

OTHER PROVISIONS OF THE ACT PRESCRIBE SUBSIDIARY CURES FOR PERSISTENT
VOTING DISCRIMINATION.  SECTION 8 AUTHORIZES THE APPOINTMENT OF FEDERAL
POLL-WATCHERS IN PLACES TO WHICH FEDERAL EXAMINERS HAVE ALREADY BEEN
ASSIGNED.  SECTION 10(D) EXCUSES THOSE MADE ELIGIBLE TO VOTE IN
ACCUMULATED PAST POLL TAXES FOR STATE AND LOCAL ELECTIONS.  SECTION
12(E) PROVIDES FOR BALLOTING BY PERSONS DENIED ACCESS TO THE POLLS IN
AREAS WHERE FEDERAL EXAMINERS HAVE BEEN APPOINTED.    THE REMAINING
REMEDIAL PORTIONS OF THE ACT ARE AIMED AT VOTING DISCRIMINATION IN ANY
AREA OF THE COUNTRY WHERE IT MAY OCCUR.  SECTION 2 BROADLY PROHIBITS
THE USE OF VOTING RULES TO ABRIDGE EXERCISE OF THE FRANCHISE ON RACIAL
GROUNDS.  SECTIONS 3, 6(A), AND 13(B) STRENGTHEN EXISTING PROCEDURES
FOR ATTACKING VOTING DISCRIMINATION BY MEANS OF LITIGATION.  SECTION
4(E) EXCUSES CITIZENS EDUCATED IN AMERICAN SCHOOLS CONDUCTED IN A
FOREIGN LANGUAGE FROM PASSING ENGLISH-LANGUAGE LITERACY TESTS.  SECTION
10(A)-(C) FACILITATES CONSTITUTIONAL LITIGATION CHALLENGING THE
IMPOSITION OF ALL POLL TAXES FOR STATE AND LOCAL ELECTIONS.  SECTIONS
11 AND 12(A)-(D) AUTHORIZE CIVIL AND CRIMINAL SANCTIONS AGAINST
INTERFERENCE WITH THE EXERCISE OF RIGHTS GUARANTEED BY THE ACT. 

AT THE OUTSET, WE EMPHASIZE THAT ONLY SOME OF THE MANY PORTIONS OF
THE ACT ARE PROPERLY BEFORE US.  SOUTH CAROLINA HAS NOT CHALLENGED SECS
2, 3, 4(E), 6(A), 8, 10, 12(D) AND (E), 13(B), AND OTHER MISCELLANEOUS
PROVISIONS HAVING NOTHING TO DO WITH THIS LAWSUIT.  JUDICIAL REVIEW OF
THESE SECTIONS MUST AWAIT SUBSEQUENT LITIGATION.  (FN22)  IN ADDITION,
WE FIND THAT SOUTH CAROLINA'S ATTACK ON SECS 11 AND 12(A)-(C) IS
PREMATURE.  NO PERSON HAS YET BEEN SUBJECTED TO, OR EVEN THREATENED
WITH, THE CRIMINAL SANCTIONS WHICH THESE SECTIONS OF THE ACT
AUTHORIZE.  SEE UNITED STATES V. RAINES, 362 U.S. 17, 20-24. 
CONSEQUENTLY, THE ONLY SECTIONS OF THE ACT TO BE REVIEWED AT THIS TIME
ARE SECS 4(A)-(D), 5, 6(B), 7, 9, 13(A), AND CERTAIN PROCEDURAL
PORTIONS OF SEC 14, ALL OF WHICH ARE PRESENTLY IN ACTUAL OPERATION IN
SOUTH CAROLINA.  WE TURN NOW TO A DETAILED DESCRIPTION OF THESE
PROVISIONS AND THEIR PRESENT STATUS. 

COVERAGE FORMULA. 

THE REMEDIAL SECTIONS OF THE ACT ASSAILED BY SOUTH CAROLINA
AUTOMATICALLY APPLY TO ANY STATE, OR TO ANY SEPARATE POLITICAL
SUBDIVISION SUCH AS A COUNTY OR PARISH, FOR WHICH TWO FINDINGS HAVE
BEEN MADE:  (1) THE ATTORNEY GENERAL HAS DETERMINED THAT ON NOVEMBER 1,
1964, IT MAINTAINED A "TEST OR DEVICE," AND (2) THE DIRECTOR OF THE
CENSUS HAS DETERMINED THAT LESS THAN 50% OF ITS VOTING-AGE RESIDENTS
WERE REGISTERED ON NOVEMBER 1, 1964, OR VOTED IN THE PRESIDENTIAL
ELECTION OF NOVEMBER 1964.  THESE FINDINGS ARE NOT REVIEWABLE IN ANY
COURT AND ARE FINAL UPON PUBLICATION IN THE FEDERAL REGISTER.  SEC
4(B).  AS USED THROUGHOUT THE ACT, THE PHRASE "TEST OR DEVICE" MEANS
ANY REQUIREMENT THAT A REGISTRANT OR VOTER MUST "(1) DEMONSTRATE THE
ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY MATTER, (2)
DEMONSTRATE ANY EDUCATIONAL ACHIEVEMENT OR HIS KNOWLEDGE OF ANY
PARTICULAR SUBJECT, (3) POSSESS GOOD MORAL CHARACTER, OR (4) PROVE HIS
QUALIFICATIONS BY THE VOUCHER OF REGISTERED VOTERS OR MEMBERS OF ANY
OTHER CLASS."  SEC 4(C). 

STATUTORY COVERAGE OF A STATE OR POLITICAL SUBDIVISION UNDER SEC 4(B)
IS TERMINATED IF THE AREA OBTAINS A DECLARATORY JUDGMENT FROM THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, DETERMINING THAT TESTS AND
DEVICES HAVE NOT BEEN USED DURING THE PRECEDING FIVE YEARS TO ABRIDGE
THE FRANCHISE ON RACIAL GROUNDS.  THE ATTORNEY GENERAL SHALL CONSENT TO
ENTRY OF THE JUDGMENT IF HE HAS NO REASON TO BELIEVE THAT THE FACTS ARE
OTHERWISE.  SEC 4(A).  FOR THE PURPOSES OF THIS SECTION, TESTS AND
DEVICES ARE NOT DEEMED TO HAVE BEEN USED IN A FORBIDDEN MANNER IF THE
INCIDENTS OF DISCRIMINATION ARE FEW IN NUMBER AND HAVE BEEN PROMPTLY
CORRECTED, IF THEIR CONTINUING EFFECTS HAVE BEEN ABATED, AND IF THEY
ARE UNLIKELY TO RECUR IN THE FUTURE.  SEC 4(D).  ON THE OTHER HAND, NO
AREA MAY OBTAIN A DECLARATORY JUDGMENT FOR FIVE YEARS AFTER THE FINAL
DECISION OF A FEDERAL COURT (OTHER THAN THE DENIAL OF A JUDGMENT UNDER
THIS SECTION OF THE ACT), DETERMINING THAT DISCRIMINATION THROUGH THE
USE OF TESTS OR DEVICES HAS OCCURRED ANYWHERE IN THE STATE OR POLITICAL
SUBDIVISION.  THESE DECLARATORY JUDGMENT ACTIONS ARE TO BE HEARD BY A
THREE-JUDGE PANEL, WITH DIRECT APPEAL TO THIS COURT.  SEC 4(A). 

SOUTH CAROLINA WAS BROUGHT WITHIN THE COVERAGE FORMULA OF THE ACT ON
AUGUST 7, 1965, PURSUANT TO APPROPRIATE ADMINISTRATIVE DETERMINATIONS
WHICH HAVE NOT BEEN CHALLENGED IN THIS PROCEEDING.  (FN23)  ON THE SAME
DAY, COVERAGE WAS ALSO EXTENDED TO ALABAMA, ALASKA, GEORGIA, LOUISIANA,
MISSISSIPPI, VIRGINIA, 26 COUNTIES IN NORTH CAROLINA, AND ONE COUNTY IN
ARIZONA.  (FN24)  TWO MORE COUNTIES IN ARIZONA, ONE COUNTY IN HAWAII,
AND ONE COUNTY IN IDAHO WERE ADDED TO THE LIST ON NOVEMBER 19, 1965. 
(FN25)  THUS FAR ALASKA, THE THREE ARIZONA COUNTIES, AND THE SINGLE
COUNTY IN IDAHO HAVE ASKED THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA TO GRANT A DECLARATORY JUDGMENT TERMINATING STATUTORY
COVERAGE.  (FN26) 

SUSPENSION OF TESTS. 

IN A STATE OR POLITICAL SUBDIVISION COVERED BY SEC 4(B) OF THE ACT,
NO PERSON MAY BE DENIED THE RIGHT TO VOTE IN ANY ELECTION BECAUSE OF
HIS FAILURE TO COMPLY WITH A "TEST OR DEVICE."  SEC 4(A). 

ON ACCOUNT OF THIS PROVISION, SOUTH CAROLINA IS TEMPORARILY BARRED
FROM ENFORCING THE PORTION OF ITS VOTING LAWS WHICH REQUIRES EVERY
APPLICANT FOR REGISTRATION TO SHOW THAT HE: 

"CAN BOTH READ AND WRITE ANY SECTION OF THE STATE CONSTITUTION
SUBMITTED TO HIM BY THE REGISTRATION OFFICER OR CAN SHOW THAT HE OWNS,
AND HAS PAID ALL TAXES COLLECTIBLE DURING THE PREVIOUS YEAR ON,
PROPERTY IN THIS STATE ASSESSED AT THREE HUNDRED DOLLARS OR MORE." 
S.C. CODE ANN. SEC 23-62(4) (1965 SUPP.). 

THE ATTORNEY GENERAL HAS DETERMINED THAT THE PROPERTY QUALIFICATION
IS INSEPARABLE FROM THE LITERACY TEST, (FN27) AND SOUTH CAROLINA MAKES
NO OBJECTION TO THIS FINDING.  SIMILAR TESTS AND DEVICES HAVE BEEN
TEMPORARILY SUSPENDED IN THE OTHER SECTIONS OF THE COUNTRY LISTED
ABOVE.  (FN28) 

REVIEW OF NEW RULES. 

IN A STATE OR POLITICAL SUBDIVISION COVERED BY SEC 4(B) OF THE ACT,
NO PERSON MAY BE DENIED THE RIGHT TO VOTE IN ANY ELECTION BECAUSE OF
HIS FAILURE TO COMPLY WITH A VOTING QUALIFICATION OR PROCEDURE
DIFFERENT FROM THOSE IN FORCE ON NOVEMBER 1, 1964.  THIS SUSPENSION OF
NEW RULES IS TERMINATED, HOWEVER, UNDER EITHER OF THE FOLLOWING
CIRCUMSTANCES: (1) IF THE AREA HAS SUBMITTED THE RULES TO THE ATTORNEY
GENERAL, AND HE HAS NOT INTERPOSED AN OBJECTION WITHIN 60 DAYS, OR (2)
IF THE AREA HAS OBTAINED A DECLARATORY JUDGMENT FROM THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA, DETERMINING THAT THE RULES WILL NOT
ABRIDGE THE FRANCHISE ON RACIAL GROUNDS.  THESE DECLARATORY JUDGMENT
ACTIONS ARE TO BE HEARD BY A THREE-JUDGE PANEL, WITH DIRECT APPEAL TO
THIS COURT.  SEC 5. 

SOUTH CAROLINA ALTERED ITS VOTING LAWS IN 1965 TO EXTEND THE CLOSING
HOUR AT POLLING PLACES FROM 6 P.M. TO 7 P.M.  (FN29)  THE STATE HAS NOT
SOUGHT JUDICIAL REVIEW OF THIS CHANGE IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, NOR HAS IT SUBMITTED THE NEW RULE TO THE ATTORNEY
GENERAL FOR HIS SCRUTINY, ALTHOUGH AT OUR HEARING THE ATTORNEY GENERAL
ANNOUNCED THAT HE DOES NOT CHALLENGE THE AMENDMENT.  THERE ARE
INDICATIONS IN THE RECORD THAT OTHER SECTIONS OF THE COUNTRY LISTED
ABOVE HAVE ALSO ALTERED THEIR VOTING LAWS SINCE NOVEMBER 1, 1964. 
(FN30) 

FEDERAL EXAMINERS. 

IN ANY POLITICAL SUBDIVISION COVERED BY SEC 4(B) OF THE ACT, THE
CIVIL SERVICE COMMISSION SHALL APPOINT VOTING EXAMINERS WHENEVER THE
ATTORNEY GENERAL CERTIFIES EITHER OF THE FOLLOWING FACTS:  (1) THAT HE
HAS RECEIVED MERITORIOUS WRITTEN COMPLAINTS FROM AT LEAST 20 RESIDENTS
ALLEGING THAT THEY HAVE BEEN DISENFRANCHISED UNDER COLOR OF LAW BECAUSE
OF THEIR RACE, OR (2) THAT THE APPOINTMENT OF EXAMINERS IS OTHERWISE
NECESSARY TO EFFECTUATE THE GUARANTEES OF THE FIFTEENTH AMENDMENT.  IN
MAKING THE LATTER DETERMINATION, THE ATTORNEY GENERAL MUST CONSIDER,
AMONG OTHER FACTORS, WHETHER THE REGISTRATION RATIO OF NON-WHITES TO
WHITES SEEMS REASONABLY ATTRIBUTABLE TO RACIAL DISCRIMINATION, OR
WHETHER THERE IS SUBSTANTIAL EVIDENCE OF GOOD-FAITH EFFORTS TO COMPLY
WITH THE FIFTEENTH AMENDMENT.  SEC 6(B).  THESE CERTIFICATIONS ARE NOT
REVIEWABLE IN ANY COURT AND ARE EFFECTIVE UPON PUBLICATION IN THE
FEDERAL REGISTER.  SEC 4(B). 

THE EXAMINERS WHO HAVE BEEN APPOINTED ARE TO TEST THE VOTING
QUALIFICATIONS OF APPLICANTS ACCORDING TO REGULATIONS OF THE CIVIL
SERVICE COMMISSION PRESCRIBING TIMES, PLACES, PROCEDURES, AND FORMS. 
SECS 7(A) AND 9(B).  ANY PERSON WHO MEETS THE VOTING REQUIREMENTS OF
STATE LAW, INSOFAR AS THESE HAVE NOT BEEN SUSPENDED BY THE ACT, MUST
PROMPTLY BE PLACED ON A LIST OF ELIGIBLE VOTERS.  EXAMINERS ARE TO
TRANSMIT THEIR LISTS AT LEAST ONCE A MONTH TO THE APPROPRIATE STATE OR
LOCAL OFFICIALS, WHO IN TURN ARE REQUIRED TO PLACE THE LISTED NAMES ON
THE OFFICIAL VOTING ROLLS.  ANY PERSON LISTED BY AN EXAMINER IS
ENTITLED TO VOTE IN ALL ELECTIONS HELD MORE THAN 45 DAYS AFTER HIS NAME
HAS BEEN TRANSMITTED.  SEC 7(B). 

A PERSON SHALL BE REMOVED FROM THE VOTING LIST BY AN EXAMINER IF HE
HAS LOST HIS ELIGIBILITY UNDER VALID STATE LAW, OR IF HE HAS BEEN
SUCCESSFULLY CHALLENGED THROUGH THE PROCEDURE PRESCRIBED IN SEC 9(A) OF
THE ACT.  SEC 7(D).  THE CHALLENGE MUST BE FILED AT THE OFFICE WITHIN
THE STATE DESIGNATED BY THE CIVIL SERVICE COMMISSION; MUST BE SUBMITTED
WITHIN 10 DAYS AFTER THE LISTING IS MADE AVAILABLE FOR PUBLIC
INSPECTION; MUST BE SUPPORTED BY THE AFFIDAVITS OF AT LEAST TWO PEOPLE
HAVING PERSONAL KNOWLEDGE OF THE RELEVANT FACTS; AND MUST BE SERVED ON
THE PERSON CHALLENGED BY MAIL OR AT HIS RESIDENCE.  A HEARING OFFICER
APPOINTED BY THE CIVIL SERVICE COMMISSION SHALL HEAR THE CHALLENGE AND
RENDER A DECISION WITHIN 15 DAYS AFTER THE CHALLENGE IS FILED.  A
PETITION FOR REVIEW OF THE HEARING OFFICER'S DECISION MUST BE SUBMITTED
WITHIN AN ADDITIONAL 15 DAYS AFTER SERVICE OF THE DECISION ON THE
PERSON SEEKING REVIEW.  THE COURT OF APPEALS FOR THE CIRCUIT IN WHICH
THE PERSON CHALLENGED RESIDES IS TO HEAR THE PETITION AND AFFIRM THE
HEARING OFFICER'S DECISION UNLESS IT IS CLEARLY ERRONEOUS.  ANY PERSON
LISTED BY AN EXAMINER IS ENTITLED TO VOTE PENDING A FINAL DECISION OF
THE HEARING OFFICER OR THE COURT.  SEC 9(A). 

THE LISTING PROCEDURES IN A POLITICAL SUBDIVISION ARE TERMINATED
UNDER EITHER OF THE FOLLOWING CIRCUMSTANCES: (1) IF THE ATTORNEY
GENERAL INFORMS THE CIVIL SERVICE COMMISSION THAT ALL PERSONS LISTED BY
EXAMINERS HAVE BEEN PLACED ON THE OFFICIAL VOTING ROLLS, AND THAT THERE
IS NO LONGER REASONABLE CAUSE TO FEAR ABRIDGMENT OF THE FRANCHISE ON
RACIAL GROUNDS, OR (2) IF THE POLITICAL SUBDIVISION HAS OBTAINED A
DECLARATORY JUDGMENT FROM THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA, ASCERTAINING THE SAME FACTS WHICH GOVERN TERMINATION BY THE
ATTORNEY GENERAL, AND THE DIRECTOR OF THE CENSUS HAS DETERMINED THAT
MORE THAN 50% OF THE NON-WHITE RESIDENTS OF VOTING AGE ARE REGISTERED
TO VOTE.  A POLITICAL SUBDIVISION MAY PETITION THE ATTORNEY GENERAL TO
TERMINATE LISTING PROCEDURES OR TO AUTHORIZE THE NECESSARY CENSUS, AND
THE DISTRICT COURT ITSELF SHALL REQUEST THE CENSUS IF THE ATTORNEY
GENERAL'S REFUSAL TO DO SO IS ARBITRARY OR UNREASONABLE.  SEC 13(A). 
THE DETERMINATIONS BY THE DIRECTOR OF THE CENSUS ARE NOT REVIEWABLE IN
ANY COURT AND ARE FINAL UPON PUBLICATION IN THE FEDERAL REGISTER.  SEC
4(B). 

ON OCTOBER 30, 1965, THE ATTORNEY GENERAL CERTIFIED THE NEED FOR
FEDERAL EXAMINERS IN TWO SOUTH CAROLINA COUNTIES, (FN31) AND EXAMINERS
APPOINTED BY THE CIVIL SERVICE COMMISSION HAVE BEEN SERVING THERE SINCE
NOVEMBER 8, 1965.  EXAMINERS HAVE ALSO BEEN ASSIGNED TO 11 COUNTIES IN
ALABAMA, FIVE PARISHES IN LOUISIANA, AND 19 COUNTIES IN MISSISSIPPI. 
(FN32)  THE EXAMINERS ARE LISTING PEOPLE FOUND ELIGIBLE TO VOTE, AND
THE CHALLENGE PROCEDURE HAS BEEN EMPLOYED EXTENSIVELY.  (FN33)  NO
POLITICAL SUBDIVISION HAS YET SOUGHT TO HAVE FEDERAL EXAMINERS
WITHDRAWN THROUGH THE ATTORNEY GENERAL OR THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA. 

III. 

THESE PROVISIONS OF THE VOTING RIGHTS ACT OF 1965 ARE CHALLENGED ON
THE FUNDAMENTAL GROUND THAT THEY EXCEED THE POWERS OF CONGRESS AND
ENCROACH ON AN AREA RESERVED TO THE STATES BY THE CONSTITUTION.  SOUTH
CAROLINA AND CERTAIN OF THE AMICI CURIAE ALSO ATTACK SPECIFIC SECTIONS
OF THE ACT FOR MORE PARTICULAR REASONS.  THEY ARGUE THAT THE COVERAGE
FORMULA PRESCRIBED IN SEC 4(A)-(D) VIOLATES THE PRINCIPLE OF THE
EQUALITY OF STATES, DENIES DUE PROCESS BY EMPLOYING AN INVALID
PRESUMPTION AND BY BARRING JUDICIAL REVIEW OF ADMINISTRATIVE FINDINGS,
CONSTITUTES A FORBIDDEN BILL OF ATTAINDER, AND IMPAIRS THE SEPARATION
OF POWERS BY ADJUDICATING GUILT THROUGH LEGISLATION.  THEY CLAIM THAT
THE REVIEW OF NEW VOTING RULES REQUIRED IN SEC 5 INFRINGES ARTICLE III
BY DIRECTING THE DISTRICT COURT TO ISSUE ADVISORY OPINIONS.  THEY
CONTEND THAT THE ASSIGNMENT OF FEDERAL EXAMINERS AUTHORIZED IN SEC 6(B)
ABRIDGES DUE PROCESS BY PRECLUDING JUDICIAL REVIEW OF ADMINISTRATIVE
FINDINGS AND IMPAIRS THE SEPARATION OF POWERS BY GIVING THE ATTORNEY
GENERAL JUDICIAL FUNCTIONS; ALSO THAT THE CHALLENGE PROCEDURE
PRESCRIBED IN SEC 9 DENIES DUE PROCESS ON ACCOUNT OF ITS SPEED. 
FINALLY, SOUTH CAROLINA AND CERTAIN OF THE AMICI CURIAE MAINTAIN THAT
SECS 4(A) AND 5, BUTTRESSED BY SEC 14(B) OF THE ACT, ABRIDGE DUE
PROCESS BY LIMITING LITIGATION TO A DISTANT FORUM. 

SOME OF THESE CONTENTIONS MAY BE DISMISSED AT THE OUTSET.  THE WORD
"PERSON" IN THE CONTEXT OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT CANNOT, BY ANY REASONABLE MODE OF INTERPRETATION, BE EXPANDED
TO ENCOMPASS THE STATES OF THE UNION, AND TO OUR KNOWLEDGE THIS HAS
NEVER BEEN DONE BY ANY COURT.  SEE INTERNATIONAL SHOE CO. V. COCREHAM,
246 LA.  244, 266, 164 SO. 2D 314, 322, N. 5; CF. UNITED STATES V. CITY
OF JACKSON, 318 F.2D 1, 8 (C.A. 5TH CIR.).  LIKEWISE, COURTS HAVE
CONSISTENTLY REGARDED THE BILL OF ATTAINDER CLAUSE OF ARTICLE I AND THE
PRINCIPLE OF THE SEPARATION OF POWERS ONLY AS PROTECTIONS FOR
INDIVIDUAL PERSONS AND PRIVATE GROUPS, THOSE WHO ARE PECULIARLY
VULNERABLE TO NONJUDICIAL DETERMINATIONS OF GUILT.  SEE UNITED STATES
V. BROWN, 381 U.S. 437; EX PARTE GARLAND, WALL.  333.  NOR DOES A STATE
HAVE STANDING AS THE PARENT OF ITS CITIZENS TO INVOKE THESE
CONSTITUTIONAL PROVISIONS AGAINST THE FEDERAL GOVERNMENT, THE ULTIMATE
PARENS PATRIAE OF EVERY AMERICAN CITIZEN.  MASSACHUSETTS V. MELLON, 262
U.S. 447, 485-486; FLORIDA V. MELLON, 273 U.S. 12, 18.  THE OBJECTIONS
TO THE ACT WHICH ARE RAISED UNDER THESE PROVISIONS MAY THEREFORE BE
CONSIDERED ONLY AS ADDITIONAL ASPECTS OF THE BASIC QUESTION PRESENTED
BY THE CASE: HAS CONGRESS EXERCISED ITS POWERS UNDER THE FIFTEENTH
AMENDMENT IN AN APPROPRIATE MANNER WITH RELATION TO THE STATES?    THE
GROUND RULES FOR RESOLVING THIS QUESTION ARE CLEAR.  THE LANGUAGE AND
PURPOSE OF THE FIFTEENTH AMENDMENT, THE PRIOR DECISIONS CONSTRUING ITS
SEVERAL PROVISIONS, AND THE GENERAL DOCTRINES OF CONSTITUTIONAL
INTERPRETATION, ALL POINT TO ONE FUNDAMENTAL PRINCIPLE.  AS AGAINST THE
RESERVED POWERS OF THE STATES, CONGRESS MAY USE ANY RATIONAL MEANS TO
EFFECTUATE THE CONSTITUTIONAL PROHIBITION OF RACIAL DISCRIMINATION IN
VOTING.  CF. OUR RULINGS LAST TERM, SUSTAINING TITLE II OF THE CIVIL
RIGHTS ACT OF 1964, IN HEART OF ATLANTA MOTEL V. UNITED STATES, 379
U.S. 241, 258-259, 261-262; AND KATZENBACH V. MCCLUNG, 379 U.S. 294,
303-304.  WE TURN NOW TO A MORE DETAILED DESCRIPTION OF THE STANDARDS
WHICH GOVERN OUR REVIEW OF THE ACT. 

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."  THIS DECLARATION HAS ALWAYS BEEN
TREATED AS SELF-EXECUTING AND HAS REPEATEDLY BEEN CONSTRUED, WITHOUT
FURTHER LEGISLATIVE SPECIFICATION, TO INVALIDATE STATE VOTING
QUALIFICATIONS OR PROCEDURES WHICH ARE DISCRIMINATORY ON THEIR FACE OR
IN PRACTICE.  SEE NEAL V. DELAWARE, 103 U.S. 370; GUINN V. UNITED
STATES, 238 U.S. 347; MYERS V. ANDERSON, 238 U.S. 368; LANE V. WILSON,
307 U.S. 268; SMITH V. ALLWRIGHT, 321 U.S. 649; SCHNELL V. DAVIS, 336
U.S. 933; TERRY V. ADAMS, 345 U.S. 461; UNITED STATES V. THOMAS, 362
U.S. 58; GOMILLION V. LIGHTFOOT, 364 U.S. 339; ALABAMA V. UNITED
STATES, 371 U.S. 37; LOUISIANA V. UNITED STATES, 380 U.S. 145.  THESE
DECISIONS HAVE BEEN RENDERED WITH FULL RESPECT FOR THE GENERAL RULE,
REITERATED LAST TERM IN CARRINGTON V. RASH, 380 U.S. 89, 91, THAT
STATES "HAVE BROAD POWERS TO DETERMINE THE CONDITIONS UNDER WHICH THE
RIGHT OF SUFFRAGE MAY BE EXERCISED."  THE GIST OF THE MATTER IS THAT
THE FIFTEENTH AMENDMENT SUPERSEDES CONTRARY EXERTIONS OF STATE POWER. 
"WHEN A STATE EXERCISES POWER WHOLLY WITHIN THE DOMAIN OF STATE
INTEREST, IT IS INSULATED FROM FEDERAL JUDICIAL REVIEW.  BUT SUCH
INSULATION IS NOT CARRIED OVER WHEN STATE POWER IS USED AS AN
INSTRUMENT FOR CIRCUMVENTING A FEDERALLY PROTECTED RIGHT."  GOMILLION
V. LIGHTFOOT, 364 U.S., AT 347. 

SOUTH CAROLINA CONTENDS THAT THE CASES CITED ABOVE ARE PRECEDENTS
ONLY FOR THE AUTHORITY OF THE JUDICIARY TO STRIKE DOWN STATE STATUTES
AND PROCEDURES - THAT TO ALLOW AN EXERCISE OF THIS AUTHORITY BY
CONGRESS WOULD BE TO ROB THE COURTS OF THEIR RIGHTFUL CONSTITUTIONAL
ROLE.  ON THE CONTRARY, SEC 2 OF THE FIFTEENTH AMENDMENT EXPRESSLY
DECLARES THAT "CONGRESS SHALL HAVE POWER TO ENFORCE THIS ARTICLE BY
APPROPRIATE LEGISLATION."  BY ADDING THIS AUTHORIZATION, THE FRAMERS
INDICATED THAT CONGRESS WAS TO BE CHIEFLY RESPONSIBLE FOR IMPLEMENTING
THE RIGHTS CREATED IN SEC 1.  "IT IS THE POWER OF CONGRESS WHICH HAS
BEEN ENLARGED.  CONGRESS IS AUTHORIZED TO ENFORCE THE PROHIBITIONS BY
APPROPRIATE LEGISLATION.  SOME LEGISLATION IS CONTEMPLATED TO MAKE THE
CIVIL WAR AMENDMENTS FULLY EFFECTIVE."  EX PARTE VIRGINIA, 100 U.S.
339, 345.  ACCORDINGLY, IN ADDITION TO THE COURTS, CONGRESS HAS FULL
REMEDIAL POWERS TO EFFECTUATE THE CONSTITUTIONAL PROHIBITION AGAINST
RACIAL DISCRIMINATION IN VOTING. 

CONGRESS HAS REPEATEDLY EXERCISED THESE POWERS IN THE PAST, AND ITS
ENACTMENTS HAVE REPEATEDLY BEEN UPHELD.  FOR RECENT EXAMPLES, SEE THE
CIVIL RIGHTS ACT OF 1957, WHICH WAS SUSTAINED IN UNITED STATES V.
RAINES, 362 U.S. 17; UNITED STATES V. THOMAS, SUPRA; AND HANNAH V.
LARCHE, 363 U.S. 420; AND THE CIVIL RIGHTS ACT OF 1960; WHICH WAS
UPHELD IN ALABAMA V. UNITED STATES, SUPRA; LOUISIANA V. UNITED STATES,
SUPRA; AND UNITED STATES V. MISSISSIPPI, 380 U.S. 128.  ON THE RARE
OCCASIONS WHEN THE COURT HAS FOUND AN UNCONSTITUTIONAL EXERCISE OF
THESE POWERS, IN ITS OPINION CONGRESS HAD ATTACKED EVILS NOT
COMPREHENDED BY THE FIFTEENTH AMENDMENT.  SEE UNITED STATES V. REESE,
92 U.S. 214; JAMES V. BOWMAN, 190 U.S. 127. 

THE BASIC TEST TO BE APPLIED IN A CASE INVOLVING SEC 2 OF THE
FIFTEENTH AMENDMENT IS THE SAME AS IN ALL CASES CONCERNING THE EXPRESS
POWERS OF CONGRESS WITH RELATION TO THE RESERVED POWERS OF THE STATES. 
CHIEF JUSTICE MARSHALL LAID DOWN THE CLASSIC FORMULATION, 50 YEARS
BEFORE THE FIFTEENTH AMENDMENT WAS RATIFIED: 

"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."  MCCULLOCH
V. MARYLAND, 4 WHEAT.  316, 421. 

THE COURT HAS SUBSEQUENTLY ECHOED HIS LANGUAGE IN DESCRIBING EACH OF
THE CIVIL WAR AMENDMENTS: 

"WHATEVER LEGISLATION IS APPROPRIATE, THAT IS, ADAPTED TO CARRY OUT
THE OBJECTS THE AMENDMENTS HAVE IN VIEW, WHATEVER TENDS TO ENFORCE
SUBMISSION TO THE PROHIBITIONS THEY CONTAIN, AND TO SECURE TO ALL
PERSONS THE ENJOYMENT OF PERFECT EQUALITY OF CIVIL RIGHTS AND THE EQUAL
PROTECTION OF THE LAWS AGAINST STATE DENIAL OR INVASION, IF NOT
PROHIBITED, IS BROUGHT WITHIN THE DOMAIN OF CONGRESSIONAL POWER."  EX
PARTE VIRGINIA, 100 U.S., AT 345-346. 

THIS LANGUAGE WAS AGAIN EMPLOYED, NEARLY 50 YEARS LATER, WITH
REFERENCE TO CONGRESS' RELATED AUTHORITY UNDER SEC 2 OF THE EIGHTEENTH
AMENDMENT.  JAMES EVERARD'S BREWERIES V. DAY, 265 U.S. 545, 558-559. 

WE THEREFORE REJECT SOUTH CAROLINA'S ARGUMENT THAT CONGRESS MAY
APPROPRIATELY DO NO MORE THAN TO FORBID VIOLATIONS OF THE FIFTEENTH
AMENDMENT IN GENERAL TERMS - THAT THE TASK OF FASHIONING SPECIFIC
REMEDIES OR OF APPLYING THEM TO PARTICULAR LOCALITIES MUST NECESSARILY
BE LEFT ENTIRELY TO THE COURTS.  CONGRESS IS NOT CIRCUMSCRIBED BY ANY
SUCH ARTIFICIAL RULES UNDER SEC 2 OF THE FIFTEENTH AMENDMENT.  IN THE
OFT-REPEATED WORDS OF CHIEF JUSTICE MARSHALL, REFERRING TO ANOTHER
SPECIFIC LEGISLATIVE AUTHORIZATION IN THE CONSTITUTION, "THIS POWER,
LIKE ALL OTHERS VESTED IN CONGRESS, IS COMPLETE IN ITSELF, MAY BE
EXERCISED TO ITS UTMOST EXTENT, AND ACKNOWLEDGES NO LIMITATIONS, OTHER
THAN ARE PRESCRIBED IN THE CONSTITUTION."  GIBBONS V. OGDEN, 9 WHEAT. 
1, 196. 

IV. 

CONGRESS EXERCISED ITS AUTHORITY UNDER THE FIFTEENTH AMENDMENT IN AN
INVENTIVE MANNER WHEN IT ENACTED THE VOTING RIGHTS ACT OF 1965.  FIRST:
THE MEASURE PRESCRIBES REMEDIES FOR VOTING DISCRIMINATION WHICH GO
INTO EFFECT WITHOUT ANY NEED FOR PRIOR ADJUDICATION.  THIS WAS CLEARLY
A LEGITIMATE RESPONSE TO THE PROBLEM, FOR WHICH THERE IS AMPLE
PRECEDENT UNDER OTHER CONSTITUTIONAL PROVISIONS.  SEE KATZENBACH V.
MCCLUNG, 379 U.S. 294, 302-304; UNITED STATES V. DARBY, 312 U.S. 100,
120-121.  CONGRESS HAD FOUND THAT CASE-BY-CASE LITIGATION WAS
INADEQUATE TO COMBAT WIDESPREAD AND PERSISTENT DISCRIMINATION IN
VOTING, BECAUSE OF THE INORDINATE AMOUNT OF TIME AND ENERGY REQUIRED TO
OVERCOME THE OBSTRUCTIONIST TACTICS INVARIABLY ENCOUNTERED IN THESE
LAWSUITS.  (FN34)  AFTER ENDURING NEARLY A CENTURY OF SYSTEMATIC
RESISTANCE TO THE FIFTEENTH AMENDMENT, CONGRESS MIGHT WELL DECIDE TO
SHIFT THE ADVANTAGE OF TIME AND INERTIA FROM THE PERPETRATORS OF THE
EVIL TO ITS VICTIMS.  THE QUESTION REMAINS, OF COURSE, WHETHER THE
SPECIFIC REMEDIES PRESCRIBED IN THE ACT WERE AN APPROPRIATE MEANS OF
COMBATTING THE EVIL, AND TO THIS QUESTION WE SHALL PRESENTLY ADDRESS
OURSELVES. 

SECOND: THE ACT INTENTIONALLY CONFINES THESE REMEDIES TO A SMALL
NUMBER OF STATES AND POLITICAL SUBDIVISIONS WHICH IN MOST INSTANCES
WERE FAMILIAR TO CONGRESS BY NAME.  (FN35)  THIS, TOO, WAS A
PERMISSIBLE METHOD OF DEALING WITH THE PROBLEM.  CONGRESS HAD LEARNED
THAT SUBSTANTIAL VOTING DISCRIMINATION PRESENTLY OCCURS IN CERTAIN
WHETHER THE EVIL MIGHT SPREAD ELSEWHERE IN THE FUTURE.  (FN36)  IN
ACCEPTABLE LEGISLATIVE FASHION, CONGRESS CHOSE TO LIMIT ITS ATTENTION
TO THE GEOGRAPHIC AREAS WHERE IMMEDIATE ACTION SEEMED NECESSARY.  SEE
MCGOWAN V. MARYLAND, 366 U.S. 420, 427; SALSBURG V. MARYLAND, 346 U.S.
545, 550-554.  THE DOCTRINE OF THE EQUALITY OF STATES, INVOKED BY SOUTH
CAROLINA, DOES NOT BAR THIS APPROACH, FOR THAT DOCTRINE APPLIES ONLY TO
THE TERMS UPON WHICH STATES ARE ADMITTED TO THE UNION, AND NOT TO THE
REMEDIES FOR LOCAL EVILS WHICH HAVE SUBSEQUENTLY APPEARED.  SEE COYLE
V. SMITH, 221 U.S. 559, AND CASES CITED THEREIN. 

COVERAGE FORMULA. 

WE NOW CONSIDER THE RELATED QUESTION OF WHETHER THE SPECIFIC STATES
AND POLITICAL SUBDIVISIONS WITHIN SEC 4(B) OF THE ACT WERE AN
APPROPRIATE TARGET FOR THE NEW REMEDIES.  SOUTH CAROLINA CONTENDS THAT
THE COVERAGE FORMULA IS AWKWARDLY DESIGNED IN A NUMBER OF RESPECTS AND
THAT IT DISREGARDS VARIOUS LOCAL CONDITIONS WHICH HAVE NOTHING TO DO
WITH RACIAL DISCRIMINATION.  THESE ARGUMENTS, HOWEVER, ARE LARGELY
BESIDE THE POINT.  (FN37)  CONGRESS BEGAN WORK WITH RELIABLE EVIDENCE
OF ACTUAL VOTING DISCRIMINATION IN A GREAT MAJORITY OF THE STATES AND
POLITICAL SUBDIVISIONS AFFECTED BY THE NEW REMEDIES OF THE ACT.  THE
FORMULA EVENTUALLY EVOLVED TO DESCRIBE THESE AREAS WAS RELEVANT TO THE
PROBLEM OF VOTING DISCRIMINATION, AND CONGRESS WAS THEREFORE ENTITLED
TO INFER A SIGNIFICANT DANGER OF THE EVIL IN THE FEW REMAINING STATES
AND POLITICAL SUBDIVISIONS COVERED BY SEC 4(B) OF THE ACT.  NO MORE WAS
REQUIRED TO JUSTIFY THE APPLICATION TO THESE AREAS OF CONGRESS' EXPRESS
POWERS UNDER THE FIFTEENTH AMENDMENT.  CF. NORTH AMERICAN CO. V.
S.E.C., 327 U.S. 686, 710-711; ASSIGNED CAR CASES, 274 U.S. 564, 582
583. 

TO BE SPECIFIC, THE NEW REMEDIES OF THE ACT ARE IMPOSED ON THREE
STATES - ALABAMA, LOUISIANA, AND MISSISSIPPI - IN WHICH FEDERAL COURTS
HAVE REPEATEDLY FOUND SUBSTANTIAL VOTING DISCRIMINATION.  (FN38)
SOUTH CAROLINA - PLUS LARGE PORTIONS OF A THIRD STATE - NORTH CAROLINA
FOR WHICH THERE WAS MORE FRAGMENTARY EVIDENCE OF RECENT VOTING
DISCRIMINATION MAINLY ADDUCED BY THE JUSTICE DEPARTMENT AND THE CIVIL
RIGHTS COMMISSION.  (FN39)  ALL OF THESE AREAS WERE APPROPRIATELY
SUBJECTED TO THE NEW REMEDIES.  IN IDENTIFYING PAST EVILS, CONGRESS
OBVIOUSLY MAY AVAIL ITSELF OF INFORMATION FROM ANY PROBATIVE SOURCE. 
SEE HEART OF ATLANTA MOTEL V. UNITED STATES, 379 U.S. 241, 252-253;
KATZENBACH V. MCCLUNG, 379 U.S., AT 299-301. 

THE AREAS LISTED ABOVE, FOR WHICH THERE WAS EVIDENCE OF ACTUAL VOTING
DISCRIMINATION, SHARE TWO CHARACTERISTICS INCORPORATED BY CONGRESS INTO
THE COVERAGE FORMULA:  THE USE OF TESTS AND DEVICES FOR VOTER
REGISTRATION, AND A VOTING RATE IN THE 1964 PRESIDENTIAL ELECTION AT
LEAST 12 POINTS BELOW THE NATIONAL AVERAGE.  TESTS AND DEVICES ARE
RELEVANT TO VOTING DISCRIMINATION BECAUSE OF THEIR LONG HISTORY AS A
TOOL FOR PERPETRATING THE EVIL; A LOW VOTING RATE IS PERTINENT FOR THE
OBVIOUS REASON THAT WIDESPREAD DISENFRANCHISEMENT MUST INEVITABLY
AFFECT THE NUMBER OF ACTUAL VOTERS.  ACCORDINGLY, THE COVERAGE FORMULA
IS RATIONAL IN BOTH PRACTICE AND THEORY.  IT WAS THEREFORE PERMISSIBLE
TO IMPOSE THE NEW REMEDIES ON THE FEW REMAINING STATES AND POLITICAL
SUBDIVISIONS COVERED BY THE FORMULA, AT LEAST IN THE ABSENCE OF PROOF
THAT THEY HAVE BEEN FREE OF SUBSTANTIAL VOTING DISCRIMINATION IN RECENT
YEARS.  CONGRESS IS CLEARLY NOT BOUND BY THE RULES RELATING TO
STATUTORY PRESUMPTIONS IN CRIMINAL CASES WHEN IT PRESCRIBES CIVIL
REMEDIES AGAINST OTHER ORGANS OF GOVERNMENT UNDER SEC 2 OF THE
FIFTEENTH AMENDMENT.  COMPARE UNITED STATES V. ROMANO, 382 U.S. 136;
TOT V. UNITED STATES, 319 U.S. 463. 

IT IS IRRELEVANT THAT THE COVERAGE FORMULA EXCLUDES CERTAIN
LOCALITIES WHICH DO NOT EMPLOY VOTING TESTS AND DEVICES BUT FOR WHICH
THERE IS EVIDENCE OF VOTING DISCRIMINATION BY OTHER MEANS.  CONGRESS
HAD LEARNED THAT WIDESPREAD AND PERSISTENT DISCRIMINATION IN VOTING
DURING RECENT YEARS HAS TYPICALLY ENTAILED THE MISUSE OF TESTS AND
DEVICES, AND THIS WAS THE EVIL FOR WHICH THE NEW REMEDIES WERE
SPECIFICALLY DESIGNED.  (FN40)  AT THE SAME TIME, THROUGH SECS 3, 6(A),
AND 13(B) OF THE ACT, CONGRESS STRENGTHENED EXISTING REMEDIES FOR
VOTING DISCRIMINATION IN OTHER AREAS OF THE COUNTRY.  LEGISLATION NEED
NOT DEAL WITH ALL PHASES OF A PROBLEM IN THE SAME WAY, SO LONG AS THE
DISTINCTIONS DRAWN HAVE SOME BASIS IN PRACTICAL EXPERIENCE.  SEE
WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 488-489; RAILWAY EXPRESS
AGENCY V. NEW YORK, 336 U.S. 106.  THERE ARE NO STATES OR POLITICAL
SUBDIVISIONS EXEMPTED FROM COVERAGE UNDER SEC 4(B) IN WHICH THE RECORD
REVEALS RECENT RACIAL DISCRIMINATION INVOLVING TESTS AND DEVICES.  THIS
FACT CONFIRMS THE RATIONALITY OF THE FORMULA. 

ACKNOWLEDGING THE POSSIBILITY OF OVERBREADTH, THE ACT PROVIDES FOR
TERMINATION OF SPECIAL STATUTORY COVERAGE AT THE BEHEST OF STATES AND
POLITICAL SUBDIVISIONS IN WHICH THE DANGER OF SUBSTANTIAL VOTING
DISCRIMINATION HAS NOT MATERIALIZED DURING THE PRECEDING FIVE YEARS. 
DESPITE SOUTH CAROLINA'S ARGUMENT TO THE CONTRARY, CONGRESS MIGHT
APPROPRIATELY LIMIT LITIGATION UNDER THIS PROVISION TO A SINGLE COURT
IN THE DISTRICT OF COLUMBIA, PURSUANT TO ITS CONSTITUTIONAL POWER UNDER
ART. III, SEC 1, TO "ORDAIN AND ESTABLISH" INFERIOR FEDERAL TRIBUNALS. 
SEE BOWLES V. WILLINGHAM, 321 U.S. 503, 510-512; YAKUS V. UNITED
STATES, 321 U.S. 414, 427-431; LOCKERTY V. PHILLIPS, 319 U.S. 182.  AT
THE PRESENT TIME, CONTRACTUAL CLAIMS AGAINST THE UNITED STATES FOR MORE
THAN $10,000 MUST BE BROUGHT IN THE COURT OF CLAIMS, AND, UNTIL 1962,
THE DISTRICT OF COLUMBIA WAS THE SOLE VENUE OF SUITS AGAINST FEDERAL
OFFICERS OFFICIALLY RESIDING IN THE NATION'S CAPITAL.  (FN41)  WE HAVE
DISCOVERED NO SUGGESTION THAT CONGRESS EXCEEDED CONSTITUTIONAL BOUNDS
IN IMPOSING THESE LIMITATIONS ON LITIGATION AGAINST THE FEDERAL
GOVERNMENT, AND THE ACT IS NO LESS REASONABLE IN THIS RESPECT.    SOUTH
CAROLINA CONTENDS THAT THESE TERMINATION PROCEDURES ARE A NULLITY
BECAUSE THEY IMPOSE AN IMPOSSIBLE BURDEN OF PROOF UPON STATES AND
POLITICAL SUBDIVISIONS ENTITLED TO RELIEF.  AS THE ATTORNEY GENERAL
POINTED OUT DURING HEARINGS ON THE ACT, HOWEVER, AN AREA NEED DO NO
MORE THAN SUBMIT AFFIDAVITS FROM VOTING OFFICIALS, ASSERTING THAT THEY
HAVE NOT BEEN GUILTY OF RACIAL DISCRIMINATION THROUGH THE USE OF TESTS
AND DEVICES DURING THE PAST FIVE YEARS, AND THEN REFUTE WHATEVER
EVIDENCE TO THE CONTRARY MAY BE ADDUCED BY THE FEDERAL GOVERNMENT. 
(FN42)  SECTION 4(D) FURTHER ASSURES THAT AN AREA NEED NOT DISPROVE
EACH ISOLATED INSTANCE OF VOTING DISCRIMINATION IN ORDER TO OBTAIN
RELIEF IN THE TERMINATION PROCEEDINGS.  THE BURDEN OF PROOF IS
THEREFORE QUITE BEARABLE, PARTICULARLY SINCE THE RELEVANT FACTS
RELATING TO THE CONDUCT OF VOTING OFFICIALS ARE PECULIARLY WITHIN THE
KNOWLEDGE OF THE STATES AND POLITICAL SUBDIVISIONS THEMSELVES.  SEE
UNITED STATES V. NEW YORK, N.H.&H.R. CO., 355 U.S. 253, 256, N. 5; CF.
S.E.C. V. RALSTON PURINA CO., 346 U.S. 119, 126. 

THE ACT BARS DIRECT JUDICIAL REVIEW OF THE FINDINGS BY THE ATTORNEY
GENERAL AND THE DIRECTOR OF THE CENSUS WHICH TRIGGER APPLICATION OF THE
COVERAGE FORMULA.  WE REJECT THE CLAIM BY ALABAMA AS AMICUS CURIAE THAT
THIS PROVISION IS INVALID BECAUSE IT ALLOWS THE NEW REMEDIES OF THE ACT
TO BE IMPOSED IN AN ARBITRARY WAY.  THE COURT HAS ALREADY PERMITTED
CONGRESS TO WITHDRAW JUDICIAL REVIEW OF ADMINISTRATIVE DETERMINATIONS
IN NUMEROUS CASES INVOLVING THE STATUTORY RIGHTS OF PRIVATE PARTIES. 
FOR EXAMPLE, SEE UNITED STATES V. CALIFORNIA EASTERN LINE, 348 U.S.
351; SWITCHMEN'S UNION V. NATIONAL MEDIATION BD., 320 U.S. 297.  IN
THIS INSTANCE, THE FINDINGS NOT SUBJECT TO REVIEW CONSIST OF OBJECTIVE
STATISTICAL DETERMINATIONS BY THE CENSUS BUREAU AND A ROUTINE ANALYSIS
OF STATE STATUTES BY THE JUSTICE DEPARTMENT.  THESE FUNCTIONS ARE
UNLIKELY TO AROUSE ANY PLAUSIBLE DISPUTE, AS SOUTH CAROLINA APPARENTLY
CONCEDES.  IN THE EVENT THAT THE FORMULA IS IMPROPERLY APPLIED, THE
AREA AFFECTED CAN ALWAYS GO INTO COURT AND OBTAIN TERMINATION OF
COVERAGE UNDER SEC 4(B), PROVIDED OF COURSE THAT IT HAS NOT BEEN GUILTY
OF VOTING DISCRIMINATION IN RECENT YEARS.  THIS PROCEDURE SERVES AS A
PARTIAL SUBSTITUTE FOR DIRECT JUDICIAL REVIEW. 

SUSPENSION OF TESTS. 

WE NOW ARRIVE AT CONSIDERATION OF THE SPECIFIC REMEDIES PRESCRIBED BY
THE ACT FOR AREAS INCLUDED WITHIN THE COVERAGE FORMULA.  SOUTH CAROLINA
ASSAILS THE TEMPORARY SUSPENSION OF EXISTING VOTING QUALIFICATIONS,
RECITING THE RULE LAID DOWN BY LASSITER V. NORTHAMPTON COUNTY BD. OF
ELECTIONS, 360 U.S. 45, THAT LITERACY TESTS AND RELATED DEVICES ARE NOT
IN THEMSELVES CONTRARY TO THE FIFTEENTH AMENDMENT.  IN THAT VERY CASE,
HOWEVER, THE COURT WENT ON TO SAY, "OF COURSE A LITERACY TEST, FAIR ON
ITS FACE, MAY BE EMPLOYED TO PERPETUATE THAT DISCRIMINATION WHICH THE
FIFTEENTH AMENDMENT WAS DESIGNED TO UPROOT."  ID., AT 53.  THE RECORD
SHOWS THAT IN MOST OF THE STATES COVERED BY THE ACT, INCLUDING SOUTH
CAROLINA, VARIOUS TESTS AND DEVICES HAVE BEEN INSTITUTED WITH THE
PURPOSE OF DISENFRANCHISING NEGROES, HAVE BEEN FRAMED IN SUCH A WAY AS
TO FACILITATE THIS AIM, AND HAVE BEEN ADMINISTERED IN A DISCRIMINATORY
FASHION FOR MANY YEARS.  (FN43) UNDER THESE CIRCUMSTANCES, THE
FIFTEENTH AMENDMENT HAS CLEARLY BEEN VIOLATED.  SEE LOUISIANA V. UNITED
STATES, 380 U.S. 145; ALABAMA V. UNITED STATES, 371 U.S. 37; SCHNELL V.
DAVIS, 336 U.S. 933. 

THE ACT SUSPENDS LITERACY TESTS AND SIMILAR DEVICES FOR A PERIOD OF
FIVE YEARS FROM THE LAST OCCURRENCE OF SUBSTANTIAL VOTING
DISCRIMINATION.  THIS WAS A LEGITIMATE RESPONSE TO THE PROBLEM, FOR
WHICH THERE IS AMPLE PRECEDENT IN FIFTEENTH AMENDMENT CASES.  IBID.
UNDERLYING THE RESPONSE WAS THE FEELING THAT STATES AND POLITICAL
SUBDIVISIONS WHICH HAD BEEN ALLOWING WHITE ILLITERATES TO VOTE FOR
YEARS COULD NOT SINCERELY COMPLAIN ABOUT "DILUTION" OF THEIR
ELECTORATES THROUGH THE REGISTRATION OF NEGRO ILLITERATES.  (FN44)
CONGRESS KNEW THAT CONTINUANCE OF THE TESTS AND DEVICES IN USE AT THE
PRESENT TIME, NO MATTER HOW FAIRLY ADMINISTERED IN THE FUTURE, WOULD
FREEZE THE EFFECT OF PAST DISCRIMINATION IN FAVOR OF UNQUALIFIED WHITE
REGISTRANTS.  (FN45)  CONGRESS PERMISSIBLY REJECTED THE ALTERNATIVE OF
REQUIRING A COMPLETE RE-REGISTRATION OF ALL VOTERS, BELIEVING THAT THIS
WOULD BE TOO HARSH ON MANY WHITES WHO HAD ENJOYED THE FRANCHISE FOR
THEIR ENTIRE ADULT LIVES.  (FN46) 

REVIEW OF NEW RULES. 

THE ACT SUSPENDS NEW VOTING REGULATIONS PENDING SCRUTINY BY FEDERAL
AUTHORITES TO DETERMINE WHETHER THEIR USE WOULD VIOLATE THE FIFTEENTH
AMENDMENT.  THIS MAY HAVE BEEN AN UNCOMMON EXERCISE OF CONGRESSIONAL
POWER, AS SOUTH CAROLINA CONTENDS, BUT THE COURT HAS RECOGNIZED THAT
EXCEPTIONAL CONDITIONS CAN JUSTIFY LEGISLATIVE MEASURES NOT OTHERWISE
APPROPRIATE.  SEE HOME BLDG. & LOAN ASSN. V. BLAISDELL, 290 U.S. 398;
WILSON V. NEW, 243 U.S. 332.  CONGRESS KNEW THAT SOME OF THE STATES
COVERED BY SEC 4(B) OF THE ACT HAD RESORTED TO THE EXTRAORDINARY
STRATAGEM OF CONTRIVING NEW RULES OF VARIOUS KINDS FOR THE SOLE PURPOSE
OF PERPETUATING VOTING DISCRIMINATION IN THE FACE OF ADVERSE FEDERAL
COURT DECREES.  (FN47)  CONGRESS HAD REASON TO SUPPOSE THAT THESE
STATES MIGHT TRY SIMILAR MANEUVERS IN THE FUTURE IN ORDER TO EVADE THE
REMEDIES FOR VOTING DISCRIMINATION CONTAINED IN THE ACT ITSELF.  UNDER
THE COMPULSION OF THESE UNIQUE CIRCUMSTANCES, CONGRESS RESPONDED IN A
PERMISSIBLY DECISIVE MANNER. 

FOR REASONS ALREADY STATED, THERE WAS NOTHING INAPPROPRIATE ABOUT
LIMITING LITIGATION UNDER THIS PROVISION TO THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, AND IN PUTTING THE BURDEN OF PROOF ON THE AREAS
SEEKING RELIEF.  NOR HAS CONGRESS AUTHORIZED THE DISTRICT COURT TO
ISSUE ADVISORY OPINIONS, IN VIOLATION OF THE PRINCIPLES OF ARTICLE III
INVOKED BY GEORGIA AS AMICUS CURIAE.  THE ACT AUTOMATICALLY SUSPENDS
THE OPERATION OF VOTING REGULATIONS ENACTED AFTER NOVEMBER 1, 1964, AND
FURNISHES MECHANISMS FOR ENFORCING THE SUSPENSION.  A STATE OR
POLITICAL SUBDIVISION WISHING TO MAKE USE OF A RECENT AMENDMENT TO ITS
VOTING LAWS THEREFORE HAS A CONCRETE AND IMMEDIATE "CONTROVERSY" WITH
THE FEDERAL GOVERNMENT.  CF. PUBLIC UTILITIES COMM'N V. UNITED STATES,
355 U.S. 534, 536-539; UNITED STATES V. CALIFORNIA, 332 U.S. 19, 24
25.  AN APPROPRIATE REMEDY IS A JUDICIAL DETERMINATION THAT CONTINUED
SUSPENSION OF THE NEW RULE IS UNNECESSARY TO VINDICATE RIGHTS
GUARANTEED BY THE FIFTEENTH AMENDMENT. 

FEDERAL EXAMINERS. 

THE ACT AUTHORIZES THE APPOINTMENT OF FEDERAL EXAMINERS TO LIST
QUALIFIED APPLICANTS WHO ARE THEREAFTER ENTITLED TO VOTE, SUBJECT TO AN
EXPEDITIOUS CHALLENGE PROCEDURE.  THIS WAS CLEARLY AN APPROPRIATE
RESPONSE TO THE PROBLEM, CLOSELY RELATED TO REMEDIES AUTHORIZED IN
PRIOR CASES.  SEE ALABAMA V. UNITED STATES, SUPRA; UNITED STATES V.
THOMAS, 362 U.S. 58.  IN MANY OF THE POLITICAL SUBDIVISIONS COVERED BY
SEC 4(B) OF THE ACT, VOTING OFFICIALS HAVE PERSISTENTLY EMPLOYED A
VARIETY OF PROCEDURAL TACTICS TO DENY NEGROES THE FRANCHISE, OFTEN IN
DIRECT DEFIANCE OR EVASION OF FEDERAL COURT DECREES.  (FN48)  CONGRESS
REALIZED THAT MERELY TO SUSPEND VOTING RULES WHICH HAVE BEEN MISUSED OR
ARE SUBJECT TO MISUSE MIGHT LEAVE THIS LOCALIZED EVIL UNDISTURBED.  AS
FOR THE BRISKNESS OF THE CHALLENGE PROCEDURE, CONGRESS KNEW THAT IN
SOME OF THE AREAS AFFECTED, CHALLENGES HAD BEEN PERSISTENTLY EMPLOYED
TO HARASS REGISTERED NEGROES.  IT CHOSE TO FORESTALL THIS ABUSE, AT THE
SAME TIME PROVIDING ALTERNATIVE WAYS FOR REMOVING PERSONS LISTED
THROUGH ERROR OR FRAUD.  (FN49)  IN ADDITION TO THE JUDICIAL CHALLENGE
PROCEDURE, SEC 7(D) ALLOWS FOR THE REMOVAL OF NAMES BY THE EXAMINER
HIMSELF, AND SEC 11(C) MAKES IT A CRIME TO OBTAIN A LISTING THROUGH
FRAUD. 

IN RECOGNITION OF THE FACT THAT THERE WERE POLITICAL SUBDIVISIONS
COVERED BY SEC 4(B) OF THE ACT IN WHICH THE APPOINTMENT OF FEDERAL
EXAMINERS MIGHT BE UNNECESSARY, CONGRESS ASSIGNED THE ATTORNEY GENERAL
THE TASK OF DETERMINING THE LOCALITIES TO WHICH EXAMINERS SHOULD BE
SENT.  (FN50)  THERE IS NO WARRANT FOR THE CLAIM, ASSERTED BY GEORGIA
AS AMICUS CURIAE, THAT THE ATTORNEY GENERAL IS FREE TO USE THIS POWER
IN AN ARBITRARY FASHION, WITHOUT REGARD TO THE PURPOSES OF THE ACT. 
DISCRETION, BY DIRECTING HIM TO CALCULATE THE REGISTRATION RATIO OF
NONWHITES TO WHITES, AND TO WEIGH EVIDENCE OF GOOD-FAITH EFFORTS TO
AVOID POSSIBLE VOTING DISCRIMINATION.  AT THE SAME TIME, THE SPECIAL
TERMINATION PROCEDURES OF SEC 13(A) PROVIDE INDIRECT JUDICIAL REVIEW
FOR THE POLITICAL SUBDIVISIONS AFFECTED, ASSURING THE WITHDRAWAL OF
FEDERAL EXAMINERS FROM AREAS WHERE THEY ARE CLEARLY NOT NEEDED.  CF.
CARLSON V. LANDON, 342 U.S. 524, 542-544; MULFORD V. SMITH, 307 U.S.
38, 48-49. 

AFTER ENDURING NEARLY A CENTURY OF WIDESPREAD RESISTANCE TO THE
FIFTEENTH AMENDMENT, CONGRESS HAS MARSHALLED AN ARRAY OF POTENT WEAPONS
AGAINST THE EVIL, WITH AUTHORITY IN THE ATTORNEY GENERAL TO EMPLOY THEM
EFFECTIVELY.  MANY OF THE AREAS DIRECTLY AFFECTED BY THIS DEVELOPMENT
HAVE INDICATED THEIR WILLINGNESS TO ABIDE BY ANY RESTRAINTS
LEGITIMATELY IMPOSED UPON THEM.  (FN51)  WE HERE HOLD THAT THE PORTIONS
OF THE VOTING RIGHTS ACT PROPERLY BEFORE US ARE A VALID MEANS FOR
CARRYING OUT THE COMMANDS OF THE FIFTEENTH AMENDMENT.  HOPEFULLY,
MILLIONS OF NON-WHITE AMERICANS WILL NOW BE ABLE TO PARTICIPATE FOR THE
FIRST TIME ON AN EQUAL BASIS IN THE GOVERNMENT UNDER WHICH THEY LIVE. 
WE MAY FINALLY LOOK FORWARD TO THE DAY WHEN TRULY "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 BILL OF COMPLAINT IS DISMISSED. 

FN1  79 STAT. 437, 42 U.S.C. SEC 1973 (1964 ED., SUPP. I). 

FN2  STATES SUPPORTING SOUTH CAROLINA:  ALABAMA, GEORGIA, LOUISIANA,
MISSISSIPPI, AND VIRGINIA.  STATES SUPPORTING THE ATTORNEY GENERAL:
CALIFORNIA, ILLINOIS, AND MASSACHUSETTS, JOINED BY HAWAII, INDIANA,
IOWA, KANSAS, MAINE, MARYLAND, MICHIGAN, MONTANA, NEW HAMPSHIRE, NEW
JERSEY, NEW YORK, OKLAHOMA, OREGON, PENNSYLVANIA, RHODE ISLAND,
VERMONT, WEST VIRGINIA, AND WISCONSIN. 

FN3  SEE HEARINGS ON H.R. 6400 BEFORE SUBCOMMITTEE NO. 5 OF THE HOSE
COMMITTEE ON THE JUDICIARY, 89TH CONG., 1ST SESS. (HEREINAFTER CITED AS
HOUSE HEARINGS); HEARINGS ON S. 1564 BEFORE THE SENATE COMMITTEE ON THE
JUDICIARY, 89TH CONG., 1ST SESS. (HEREINAFTER CITED AS SENATE
HEARINGS). 

FN4  SEE THE CONGRESSIONAL RECORD FOR APRIL 22, 23, 26, 27, 28, 29,
30; MAY 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25,
26; JULY 6, 7, 8, 9; AUGUST 3 AND 4, 1965. 

FN5  THE FACTS CONTAINED IN THESE REPORTS ARE CONFIRMED, AMONG OTHER
SOURCES, BY UNITED STATES V. LOUISIANA, 225 F. SUPP. 353, 363-385
(WISDOM, J.), AFF'D, 380 U.S. 145; UNITED STATES V. MISSISSIPPI, 229 F.
SUPP. 925, 983-997 (DISSENTING OPINION OF BROWN, J.), REV'D AND REM'D,
380 U.S. 128; UNITED STATES V. ALABAMA, 192 F. SUPP. 677 (JOHNSON, J.),
AFF'D, 304 F.2D 583, AFF'D, 371 U.S. 37; COMM'N ON CIVIL RIGHTS, VOTING
IN MISSISSIPPI; 1963 COMM'N ON CIVIL RIGHTS REP., VOTING; 1961 COMM'N
ON CIVIL RIGHTS REP., VOTING, PT. 2; 1959 COMM'N ON CIVIL RIGHTS REP.,
PT. 2.  SEE GENERALLY CHRISTOPHER, THE CONSTITUTIONALITY OF THE VOTING
RIGHTS ACT OF 1965, 18 STAN.  L. REV. 1; NOTE, FEDERAL PROTECTION OF
NEGRO VOTING RIGHTS, 51 VA. L. REV. 1051. 

FN6  16 STAT. 140. 

FN7 16 STAT. 433. 

FN8  28 STAT. 36. 

FN9  THE SOUTH CAROLINA CONSTITUTIONAL CONVENTION OF 1895 WAS A
LEADER IN THE WIDESPREAD MOVEMENT TO DISENFRANCHISE NEGROES.  KEY,
SOUTHERN POLITICS, 537-539.  SENATOR BEN TILLMAN FRANKLY EXPLAINED TO
THE STATE DELEGATES THE AIM OF THE NEW LITERACY TEST:  "THE ONLY THING
WE CAN DO AS PATRIOTS AND AS STATESMEN IS TO TAKE FROM THE 'IGNORANT
BLACKS' EVERY BALLOT THAT WE CAN UNDER THE LAWS OF OUR NATIONAL
GOVERNMENT."  HE WAS EQUALLY CANDID ABOUT THE EXEMPTION FROM THE
LITERACY TEST FOR PERSONS WHO COULD "UNDERSTAND" AND "EXPLAIN" A
ILLEGALITY IN IT.  IT IS JUST SIMPLY SHOWING PARTIALITY, PERHAPS,
(LAUGHTER,) OR DISCRIMINATING."  HE DESCRIBED THE ALTERNATIVE EXEMPTION
FOR PERSONS PAYING STATE PROPERTY TAXES IN THE SAME VEIN:  "BY MEANS OF
THE $300 CLAUSE YOU SIMPLY REACH OUT AND TAKE IN SOME MORE WHITE MEN
AND A FEW MORE COLORED MEN."  JOURNAL OF THE CONSTITUTIONAL CONVENTION
OF THE STATE OF SOUTH CAROLINA 464, 469, 471 (1895).  SENATOR TILLMAN
WAS THE DOMINANT POLITICAL FIGURE IN THE STATE CONVENTION, AND HIS
ENTIRE ADDRESS MERITS EXAMINATION. 

FN10  PRIOR TO THE CIVIL WAR, MOST OF THE SLAVE STATES MADE IT A
CRIME TO TEACH NEGROES HOW TO READ OR WRITE.  FOLLOWING THE WAR, THESE
STATES RAPIDLY INSTITUTED RACIAL SEGREGATION IN THEIR PUBLIC SCHOOLS. 
THROUGHOUT THE PERIOD, FREE PUBLIC EDUCATION IN THE SOUTH HAD BARELY
BEGUN TO DEVELOP.  SEE BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 489
490, N. 4; 1959 COMM'N ON CIVIL RIGHTS REP. 147-151. 

FN11  FOR EXAMPLE, SEE THREE VOTING SUITS BROUGHT AGAINST THE STATES
THEMSELVES:  UNITED STATES V. ALABAMA, 192 F. SUPP. 677, AFF'D, 304
F.2D 583, AFF'D, 371 U.S. 37; UNITED STATES V. LOUISIANA, 225 F. SUPP.
353, AFF'D, 380 U.S. 145; UNITED STATES V. MISSISSIPPI, 339 F.2D 679. 
FN12  A WHITE APPLICANT IN LOUISIANA SATISFIED THE REGISTRAR OF HIS
ABILITY TO INTERPRET THE STATE CONSTITUTION BY WRITING, "FRDUM FOOF
SPETGH."  UNITED STATES V. LOUISIANA, 225 F. SUPP. 353, 384.  A WHITE
APPLICANT IN ALABAMA WHO HAD NEVER COMPLETED THE FIRST GRADE OF SCHOOL
WAS ENROLLED AFTER THE REGISTRAR FILLED OUT THE ENTIRE FORM FOR HIM. 
UNITED STATES V. PENTON, 212 F. SUPP. 193, 210-211. 

FN13  IN PANOLA COUNTY, MISSISSIPPI, THE REGISTRAR REQUIRED NEGROES
TO INTERPRET THE PROVISION OF THE STATE CONSTITUTION CONCERNING "THE
RATE OF INTEREST ON THE FUND KNOWN AS THE 'CHICKASAW SCHOOL FUND.'" 
UNITED STATES V. DUKE, 332 F.2D 759, 764.  IN FORREST COUNTY,
MISSISSIPPI, THE REGISTRAR REJECTED SIX NEGROES WITH BACCALAUREATE
DEGREES, THREE OF WHOM WERE ALSO MASTERS OF ARTS.  UNITED STATES V.
LYND, 301 F.2D 818, 821. 

FN14  FOR EXAMPLE, SEE UNITED STATES V. ATKINS, 323 F.2D 733, 743. 

FN15  FOR EXAMPLE, SEE UNITED STATES V. LOGUE, 344 F.2D 290, 292. 

FN16  71 STAT. 634. 

FN17 74 STAT. 86. 

FN18  78 STAT. 241, 42 U.S.C. SEC 1971 (1964 ED.). 

FN19  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT ORDERED THE
REGISTRARS OF FORREST COUNTY, MISSISSIPPI, TO GIVE FUTURE NEGRO
APPLICANTS THE SAME ASSISTANCE WHICH WHITE APPLICANTS HAD ENJOYED IN
THE PAST, AND TO REGISTER FUTURE NEGRO APPLICANTS DESPITE ERRORS WHICH
WERE NOT SERIOUS ENOUGH TO DISQUALIFY WHITE APPLICANTS IN THE PAST. 
THE MISSISSIPPI LEGISLATURE PROMPTLY RESPONDED BY REQUIRING APPLICANTS
TO COMPLETE THEIR REGISTRATION FORMS WITHOUT ASSISTANCE OR ERROR, AND
BY ADDING A GOOD-MORALS AND PUBLIC-CHALLENGE PROVISION TO THE
REGISTRATION LAWS.  UNITED STATES V. MISSISSIPPI, 229 F. SUPP. 925, 996
997 (DISSENTING OPINION). 

FN20  FOR EXAMPLE, SEE UNITED STATES V. PARKER, 236 F. SUPP. 511;
UNITED STATES V. PALMER, 230 F. SUPP. 716. 

FN21  FOR CONVENIENT REFERENCE, THE ENTIRE ACT IS REPRINTED IN AN
APPENDIX TO THIS OPINION. 

FN22  SECTION 4(E) HAS BEEN CHALLENGED IN MORGAN V. KATZENBACH, 247
F. SUPP. 196, PROB.  JURIS.  NOTED, 382 U.S. 1007, AND IN UNITED STATES
V. COUNTY BD. OF ELECTIONS, 248 F. SUPP.  316.  SECTION 10(A)-(C) IS
INVOLVED IN UNITED STATES V. TEXAS, 252 F. SUPP. 234, AND IN UNITED
STATES V. ALABAMA, 252 F. SUPP. 95; SEE ALSO HARPER V. VIRGINIA STATE
BD. OF ELECTIONS, NO. 48, 1965 TERM, AND BUTTS V. HARRISON, NO. 655,
1965 TERM, WHICH WERE ARGUED TOGETHER BEFORE THIS COURT ON JANUARY 25
AND 26, 1966. 

FN23  30 FED. REG. 9897. 

FN24  IBID. 

FN25  30 FED. REG. 14505. 

FN26  ALASKA V. UNITED STATES, CIV. ACT.  101-66; APACHE COUNTY V.
UNITED STATES, CIV.  ACT.  292-66; ELMORE COUNTY V. UNITED STATES, CIV.
ACT.  320-66. 

FN27  30 FED. REG. 14045-14046. 

FN28  FOR A CHART OF THE TESTS AND DEVICES IN EFFECT AT THE TIME THE
ACT WAS UNDER CONSIDERATION, SEE HOUSE HEARINGS 30-32; SENATE REPORT 42
43. 

FN29  S.C. CODE ANN. SEC 23-342 (1965 SUPP.). 

FN30  BRIEF FOR MISSISSIPPI AS AMICUS CURIAE, APP. 

FN31  30 FED. REG. 13850. 

FN32  30 FED. REG. 9970-9971, 10863, 12363, 12654, 13849-13850,
15837; 31 FED. REG. 914. 

FN33  SEE COMM'N ON CIVIL RIGHTS, THE VOTING RIGHTS ACT (1965). 

FN34  HOUSE REPORT 9-11; SENATE REPORT 6-9. 

FN35  HOUSE REPORT 13; SENATE REPORT 52, 55. 

FN36  HOUSE HEARINGS 27; SENATE HEARINGS 201. 

FN37  FOR CONGRESS' DEFENSE OF THE FORMULA, SEE HOUSE REPORT 13-14;
SENATE REPORT 13-14. 

FN38  HOUSE REPORT 12; SENATE REPORT 9-10. 

FN39  GEORGIA:  HOUSE HEARINGS 160-176; SENATE HEARINGS 1182-1184,
1237, 1253, 1300-1301, 1336-1345.  NORTH CAROLINA:  SENATE HEARINGS 27
28, 39, 246-248.  SOUTH CAROLINA:  HOUSE HEARINGS 114-116, 196-201;
SENATE HEARINGS 1353-1354. 

FN40  HOUSE HEARINGS 75-77; SENATE HEARINGS 241-243. 

FN41  REGARDING CLAIMS AGAINST THE UNITED STATES, SEE 28 U.S.C. SECS
1491, 1346(A) (1964 ED.).  CONCERNING SUITS AGAINST FEDERAL OFFICERS,
SEE STROUD V. BENSON, 254 F.2D 448; H.R. REP. NO. 536, 87TH CONG., 1ST
SESS.; S. REP. NO. 1992, 87TH CONG., 2D SESS.; 28 U.S.C. SEC 1391(E)
(1964 ED.); 2 MOORE, FEDERAL PRACTICE PARA 4.29 (1964 ED.). 

FN42  HOUSE HEARINGS 92-93; SENATE HEARINGS 26-27. 

FN43  HOUSE REPORT 11-13; SENATE REPORT 4-5, 9-12. 

FN44  HOUSE REPORT 15; SENATE REPORT 15-16. 

FN45  HOUSE REPORT 15; SENATE REPORT 16. 

FN46  HOUSE HEARINGS 17; SENATE HEARINGS 22-23. 

FN47  HOUSE REPORT 10-11; SENATE REPORT 8, 12. 

FN48  HOUSE REPORT 16; SENATE REPORT 15. 

FN49  SENATE HEARINGS 200. 

FN50  HOUSE REPORT 16. 

FN51  SEE COMM'N ON CIVIL RIGHTS, THE VOTING RIGHTS ACT (1965). 

                       APPENDIX TO OPINION OF THE COURT. 

                         VOTING RIGHTS ACT OF 1965. 

                                    AN ACT 

TO ENFORCE THE FIFTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES, AND FOR OTHER PURPOSES. 

BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THIS ACT SHALL BE
KNOWN AS THE "VOTING RIGHTS ACT OF 1965." 

SEC. 2.  NO VOTING QUALIFICATION OR PREREQUISITE TO VOTING, OR
STANDARD, PRACTICE, OR PROCEDURE SHALL BE IMPOSED OR APPLIED BY ANY
STATE OR POLITICAL SUBDIVISION TO DENY OR ABRIDGE THE RIGHT OF ANY
CITIZEN OF THE UNITED STATES TO VOTE ON ACCOUNT OF RACE OR COLOR. 

SEC. 3.(A)  WHENEVER THE ATTORNEY GENERAL INSTITUTES A PROCEEDING
UNDER ANY STATUTE TO ENFORCE THE GUARANTEES OF THE FIFTEENTH AMENDMENT
IN ANY STATE OR POLITICAL SUBDIVISION THE COURT SHALL AUTHORIZE THE
APPOINTMENT OF FEDERAL EXAMINERS BY THE UNITED STATES CIVIL SERVICE
COMMISSION IN ACCORDANCE WITH SECTION 6 TO SERVE FOR SUCH PERIOD OF
TIME AND FOR SUCH POLITICAL SUBDIVISIONS AS THE COURT SHALL DETERMINE
IS APPROPRIATE TO ENFORCE THE GUARANTEES OF THE FIFTEENTH AMENDMENT (1)
AS PART OF ANY INTERLOCUTORY ORDER IF THE COURT DETERMINES THAT THE
APPOINTMENT OF SUCH EXAMINERS IS NECESSARY TO ENFORCE SUCH GUARANTEES
OR (2) AS PART OF ANY FINAL JUDGMENT IF THE COURT FINDS THAT VIOLATIONS
OF THE FIFTEENTH AMENDMENT JUSTIFYING EQUITABLE RELIEF HAVE OCCURRED IN
SUCH STATE OR SUBDIVISION: PROVIDED, THAT THE COURT NEED NOT AUTHORIZE
THE APPOINTMENT OF EXAMINERS IF ANY INCIDENTS OF DENIAL OR ABRIDGEMENT
OF THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR (1) HAVE BEEN FEW IN
NUMBER AND HAVE BEEN PROMPTLY AND EFFECTIVELY CORRECTED BY STATE OR
LOCAL ACTION, (2) THE CONTINUING EFFECT OF SUCH INCIDENTS HAS BEEN
ELIMINATED, AND (3) THERE IS NO REASONABLE PROBABILITY OF THEIR
RECURRENCE IN THE FUTURE. 

(B)  IF IN A PROCEEDING INSTITUTED BY THE ATTORNEY GENERAL UNDER ANY
STATUTE TO ENFORCE THE GUARANTEES OF THE FIFTEENTH AMENDMENT IN ANY
STATE OR POLITICAL SUBDIVISION THE COURT FINDS THAT A TEST OR DEVICE
HAS BEEN USED FOR THE PURPOSE OR WITH THE EFFECT OF DENYING OR
ABRIDGING THE RIGHT OF ANY CITIZEN OF THE UNITED STATES TO VOTE ON
ACCOUNT OF RACE OR COLOR, IT SHALL SUSPEND THE USE OF TESTS AND DEVICES
IN SUCH STATE OR POLITICAL SUBDIVISIONS AS THE COURT SHALL DETERMINE IS
APPROPRIATE AND FOR SUCH PERIOD AS IT DEEMS NECESSARY. 

(C)  IF IN ANY PROCEEDING INSTITUTED BY THE ATTORNEY GENERAL UNDER
ANY STATUTE TO ENFORCE THE GUARANTEES OF THE FIFTEENTH AMENDMENT IN ANY
STATE OR POLITICAL SUBDIVISION THE COURT FINDS THAT VIOLATIONS OF THE
FIFTEENTH AMENDMENT JUSTIFYING EQUITABLE RELIEF HAVE OCCURRED WITHIN
THE TERRITORY OF SUCH STATE OR POLITICAL SUBDIVISION, THE COURT, IN
ADDITION TO SUCH RELIEF AS IT MAY GRANT, SHALL RETAIN JURISDICTION FOR
SUCH PERIOD AS IT MAY DEEM APPROPRIATE AND DURING SUCH PERIOD NO VOTING
QUALIFICATION OR PREREQUISITE TO VOTING, OR STANDARD, PRACTICE, OR
PROCEDURE WITH RESPECT TO VOTING DIFFERENT FROM THAT IN FORCE OR EFFECT
AT THE TIME THE PROCEEDING WAS COMMENCED SHALL BE ENFORCED UNLESS AND
UNTIL THE COURT FINDS THAT SUCH QUALIFICATION, PREREQUISITE, STANDARD,
PRACTICE, OR PROCEDURE DOES NOT HAVE THE PURPOSE AND WILL NOT HAVE THE
EFFECT OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR
COLOR:  PROVIDED, THAT SUCH QUALIFICATION, PREREQUISITE, STANDARD,
PRACTICE, OR PROCEDURE MAY BE ENFORCED IF THE QUALIFICATION,
PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE HAS BEEN SUBMITTED BY
THE CHIEF LEGAL OFFICER OR OTHER APPROPRIATE OFFICIAL OF SUCH STATE OR
SUBDIVISION TO THE ATTORNEY GENERAL AND THE ATTORNEY GENERAL HAS NOT
INTERPOSED AN OBJECTION WITHIN SIXTY DAYS AFTER SUCH SUBMISSION, EXCEPT
THAT NEITHER THE COURT'S FINDING NOR THE ATTORNEY GENERAL'S FAILURE TO
OBJECT SHALL BAR A SUBSEQUENT ACTION TO ENJOIN ENFORCEMENT OF SUCH
QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE. 

SEC. 4.(A)  TO ASSURE THAT THE RIGHT OF CITIZENS OF THE UNITED STATES
TO VOTE IS NOT DENIED OR ABRIDGED ON ACCOUNT OF RACE OR COLOR, NO
CITIZEN SHALL BE DENIED THE RIGHT TO VOTE IN ANY FEDERAL, STATE, OR
LOCAL ELECTION BECAUSE OF HIS FAILURE TO COMPLY WITH ANY TEST OR DEVICE
IN ANY STATE WITH RESPECT TO WHICH THE DETERMINATIONS HAVE BEEN MADE
UNDER SUBSECTION (B) OR IN ANY POLITICAL SUBDIVISION WITH RESPECT TO
WHICH SUCH DETERMINATIONS HAVE BEEN MADE AS A SEPARATE UNIT, UNLESS THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN AN ACTION
FOR A DECLARATORY JUDGMENT BROUGHT BY SUCH STATE OR SUBDIVISION AGAINST
THE UNITED STATES HAS DETERMINED THAT NO SUCH TEST OR DEVICE HAS BEEN
USED DURING THE FIVE YEARS PRECEDING THE FILING OF THE ACTION FOR THE
PURPOSE OR WITH THE EFFECT OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON
ACCOUNT OF RACE OR COLOR:  PROVIDED, THAT NO SUCH DECLARATORY JUDGMENT
SHALL ISSUE WITH RESPECT TO ANY PLAINTIFF FOR A PERIOD OF FIVE YEARS
AFTER THE ENTRY OF A FINAL JUDGMENT OF ANY COURT OF THE UNITED STATES,
OTHER THAN THE DENIAL OF A DECLARATORY JUDGMENT UNDER THIS SECTION,
WHETHER ENTERED PRIOR TO OR AFTER THE ENACTMENT OF THIS ACT,
DETERMINING THAT DENIALS OR ABRIDGMENTS OF THE RIGHT TO VOTE ON ACCOUNT
OF RACE OR COLOR THROUGH THE USE OF SUCH TESTS OR DEVICES HAVE OCCURRED
ANYWHERE IN THE TERRITORY OF SUCH PLAINTIFF. 

AN ACTION PURSUANT TO THIS SUBSECTION SHALL BE HEARD AND DETERMINED
BY A COURT OF THREE JUDGES IN ACCORDANCE WITH THE PROVISIONS OF SECTION
2284 OF TITLE 28 OF THE U.S.C. AND ANY APPEAL SHALL LIE TO THE SUPREME
COURT.  THE COURT SHALL RETAIN JURISDICTION OF ANY ACTION PURSUANT TO
THIS SUBSECTION FOR FIVE YEARS AFTER JUDGMENT AND SHALL REOPEN THE
ACTION UPON MOTION OF THE ATTORNEY GENERAL ALLEGING THAT A TEST OR
DEVICE HAS BEEN USED FOR THE PURPOSE OR WITH THE EFFECT OF DENYING OR
ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR. 

IF THE ATTORNEY GENERAL DETERMINES THAT HE HAS NO REASON TO BELIEVE
THAT ANY SUCH TEST OR DEVICE HAS BEEN USED DURING THE FIVE YEARS
PRECEDING THE FILING OF THE ACTION FOR THE PURPOSE OR WITH THE EFFECT
OF DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR,
HE SHALL CONSENT TO THE ENTRY OF SUCH JUDGMENT. 

(B)  THE PROVISIONS OF SUBSECTION (A) SHALL APPLY IN ANY STATE OR IN
ANY POLITICAL SUBDIVISION OF A STATE WHICH (1) THE ATTORNEY GENERAL
DETERMINES MAINTAINED ON NOVEMBER 1, 1964, ANY TEST OR DEVICE, AND WITH
RESPECT TO WHICH (2) THE DIRECTOR OF THE CENSUS DETERMINES THAT LESS
THAN 50 PER CENTUM OF THE PERSONS OF VOTING AGE RESIDING THEREIN WERE
REGISTERED ON NOVEMBER 1, 1964, OR THAT LESS THAN 50 PER CENTUM OF SUCH
PERSONS VOTED IN THE PRESIDENTIAL ELECTION OF NOVEMBER 1964. 

A DETERMINATION OR CERTIFICATION OF THE ATTORNEY GENERAL OR OF THE
DIRECTOR OF THE CENSUS UNDER THIS SECTION OR UNDER SECTION 6 OR SECTION
13 SHALL NOT BE REVIEWABLE IN ANY COURT AND SHALL BE EFFECTIVE UPON
PUBLICATION IN THE FEDERAL REGISTER. 

(C)  THE PHRASE "TEST OR DEVICE" SHALL MEAN ANY REQUIREMENT THAT A
PERSON AS A PREREQUISITE FOR VOTING OR REGISTRATION FOR VOTING (1)
DEMONSTRATE THE ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY
MATTER, (2) DEMONSTRATE ANY EDUCATIONAL ACHIEVEMENT OR HIS KNOWLEDGE OF
ANY PARTICULAR SUBJECT, (3) POSSESS GOOD MORAL CHARACTER, OR (4) PROVE
HIS QUALIFICATIONS BY THE VOUCHER OF REGISTERED VOTERS OR MEMBERS OF
ANY OTHER CLASS. 

(D)  FOR PURPOSES OF THIS SECTION NO STATE OR POLITICAL SUBDIVISION
SHALL BE DETERMINED TO HAVE ENGAGED IN THE USE OF TESTS OR DEVICES FOR
THE PURPOSE OR WITH THE EFFECT OF DENYING OR ABRIDGING THE RIGHT TO
VOTE ON ACCOUNT OF RACE OR COLOR IF (1) INCIDENTS OF SUCH USE HAVE BEEN
FEW IN NUMBER AND HAVE BEEN PROMPTLY AND EFFECTIVELY CORRECTED BY STATE
OR LOCAL ACTION, (2) THE CONTINUING EFFECT OF SUCH INCIDENTS HAS BEEN
ELIMINATED, AND (3) THERE IS NO REASONABLE PROBABILITY OF THEIR
RECURRENCE IN THE FUTURE. 

(E)(1)  CONGRESS HEREBY DECLARES THAT TO SECURE THE RIGHTS UNDER THE
FOURTEENTH AMENDMENT OF PERSONS EDUCATED IN AMERICAN-FLAG SCHOOLS IN
WHICH THE PREDOMINANT CLASSROOM LANGUAGE WAS OTHER THAN ENGLISH, IT IS
NECESSARY TO PROHIBIT THE STATES FROM CONDITIONING THE RIGHT TO VOTE OF
SUCH PERSONS ON ABILITY TO READ, WRITE, UNDERSTAND, OR INTERPRET ANY
MATTER IN THE ENGLISH LANGUAGE. 

(2)  NO PERSON WHO DEMONSTRATES THAT HE HAS SUCCESSFULLY COMPLETED
THE SIXTH PRIMARY GRADE IN A PUBLIC SCHOOL IN, OR A PRIVATE SCHOOL
ACCREDITED BY, ANY STATE OR TERRITORY, THE DISTRICT OF COLUMBIA, OR THE
COMMONWEALTH OF PUERTO RICO IN WHICH THE PREDOMINANT CLASSROOM LANGUAGE
WAS OTHER THAN ENGLISH, SHALL BE DENIED THE RIGHT TO VOTE IN ANY
FEDERAL, STATE, OR LOCAL ELECTION BECAUSE OF HIS INABILITY TO READ,
WRITE, UNDERSTAND, OR INTERPRET ANY MATTER IN THE ENGLISH LANGUAGE,
EXCEPT THAT IN STATES IN WHICH STATE LAW PROVIDES THAT A DIFFERENT
LEVEL OF EDUCATION IS PRESUMPTIVE OF LITERACY, HE SHALL DEMONSTRATE
THAT HE HAS SUCCESSFULLY COMPLETED AN EQUIVALENT LEVEL OF EDUCATION IN
A PUBLIC SCHOOL IN, OR A PRIVATE SCHOOL ACCREDITED BY, ANY STATE OR
TERRITORY, THE DISTRICT OF COLUMBIA, OR THE COMMONWEALTH OF PUERTO RICO
IN WHICH THE PREDOMINANT CLASSROOM LANGUAGE WAS OTHER THAN ENGLISH. 

SEC. 5.  WHENEVER A STATE OR POLITICAL SUBDIVISION WITH RESPECT TO
WHICH THE PROHIBITIONS SET FORTH IN SECTION 4(A) ARE IN EFFECT SHALL
ENACT OR SEEK TO ADMINISTER ANY VOTING QUALIFICATION OR PREREQUISITE TO
VOTING, OR STANDARD, PRACTICE, OR PROCEDURE WITH RESPECT TO VOTING
DIFFERENT FROM THAT IN FORCE OR EFFECT ON NOVEMBER 1, 1964, SUCH STATE
OR SUBDIVISION MAY INSTITUTE AN ACTION IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA FOR A DECLARATORY JUDGMENT THAT SUCH
QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE DOES NOT
HAVE THE PURPOSE AND WILL NOT HAVE THE EFFECT OF DENYING OR ABRIDGING
THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR, AND UNLESS AND UNTIL THE
COURT ENTERS SUCH JUDGMENT NO PERSON SHALL BE DENIED THE RIGHT TO VOTE
FOR FAILURE TO COMPLY WITH SUCH QUALIFICATION, PREREQUISITE, STANDARD,
PRACTICE, OR PROCEDURE:  PROVIDED, THAT SUCH QUALIFICATION,
PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE MAY BE ENFORCED WITHOUT
SUCH PROCEEDING IF THE QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE,
OR PROCEDURE HAS BEEN SUBMITTED BY THE CHIEF LEGAL OFFICER OR OTHER
APPROPRIATE OFFICIAL OF SUCH STATE OR SUBDIVISION TO THE ATTORNEY
GENERAL AND THE ATTORNEY GENERAL HAS NOT INTERPOSED AN OBJECTION WITHIN
SIXTY DAYS AFTER SUCH SUBMISSION, EXCEPT THAT NEITHER THE ATTORNEY
GENERAL'S FAILURE TO OBJECT NOR A DECLARATORY JUDGMENT ENTERED UNDER
THIS SECTION SHALL BAR A SUBSEQUENT ACTION TO ENJOIN ENFORCEMENT OF
SUCH QUALIFICATION, PREREQUISITE, STANDARD, PRACTICE, OR PROCEDURE. 
ANY ACTION UNDER THIS SECTION SHALL BE HEARD AND DETERMINED BY A COURT
OF THREE JUDGES IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2284 OF
TITLE 28 OF THE U.S.C. AND ANY APPEAL SHALL LIE TO THE SUPREME COURT. 

SEC. 6.  WHENEVER (A) A COURT HAS AUTHORIZED THE APPOINTMENT OF
EXAMINERS PURSUANT TO THE PROVISIONS OF SECTION 3(A), OR (B) UNLESS A
DECLARATORY JUDGMENT HAS BEEN RENDERED UNDER SECTION 4(A), THE ATTORNEY
GENERAL CERTIFIES WITH RESPECT TO ANY POLITICAL SUBDIVISION NAMED IN,
OR INCLUDED WITHIN THE SCOPE OF, DETERMINATIONS MADE UNDER SECTION 4(B)
THAT (1) HE HAS RECEIVED COMPLAINTS IN WRITING FROM TWENTY OR MORE
RESIDENTS OF SUCH POLITICAL SUBDIVISION ALLEGING THAT THEY HAVE BEEN
DENIED THE RIGHT TO VOTE UNDER COLOR OF LAW ON ACCOUNT OF RACE OR
COLOR, AND THAT HE BELIEVES SUCH COMPLAINTS TO BE MERITORIOUS, OR (2)
THAT IN HIS JUDGMENT (CONSIDERING, AMONG OTHER FACTORS, WHETHER THE
RATIO OF NONWHITE PERSONS TO WHITE PERSONS REGISTERED TO VOTE WITHIN
SUCH SUBDIVISION APPEARS TO HIM TO BE REASONABLY ATTRIBUTABLE TO
VIOLATIONS OF THE FIFTEENTH AMENDMENT OR WHETHER SUBSTANTIAL EVIDENCE
EXISTS THAT BONA FIDE EFFORTS ARE BEING MADE WITHIN SUCH SUBDIVISION TO
COMPLY WITH THE FIFTEENTH AMENDMENT), THE APPOINTMENT OF EXAMINERS IS
OTHERWISE NECESSARY TO ENFORCE THE GUARANTEES OF THE FIFTEENTH
AMENDMENT, THE CIVIL SERVICE COMMISSION SHALL APPOINT AS MANY EXAMINERS
FOR SUCH SUBDIVISION AS IT MAY DEEM APPROPRIATE TO PREPARE AND MAINTAIN
LISTS OF PERSONS ELIGIBLE TO VOTE IN FEDERAL, STATE, AND LOCAL
ELECTIONS.  SUCH EXAMINERS, HEARING OFFICERS PROVIDED FOR IN SECTION
9(A), AND OTHER PERSONS DEEMED NECESSARY BY THE COMMISSION TO CARRY OUT
THE PROVISIONS AND PURPOSES OF THIS ACT SHALL BE APPOINTED,
COMPENSATED, AND SEPARATED WITHOUT REGARD TO THE PROVISIONS OF ANY
STATUTE ADMINISTERED BY THE CIVIL SERVICE COMMISSION, AND SERVICE UNDER
THIS ACT SHALL NOT BE CONSIDERED EMPLOYMENT FOR THE PURPOSES OF ANY
STATUTE ADMINISTERED BY THE CIVIL SERVICE COMMISSION, EXCEPT THE
PROVISIONS OF SECTION 9 OF THE ACT OF AUGUST 2, 1939, AS AMENDED (5
U.S.C. 118I), PROHIBITING PARTISAN POLITICAL ACTIVITY:  PROVIDED, THAT
THE COMMISSION IS AUTHORIZED, AFTER CONSULTING THE HEAD OF THE
APPROPRIATE DEPARTMENT OR AGENCY, TO DESIGNATE SUITABLE PERSONS IN THE
OFFICIAL SERVICE OF THE UNITED STATES, WITH THEIR CONSENT, TO SERVE IN
THESE POSITIONS.  EXAMINERS AND HEARING OFFICERS SHALL HAVE THE POWER
TO ADMINISTER OATHS. 

SEC. 7.(A)  THE EXAMINERS FOR EACH POLITICAL SUBDIVISION SHALL, AT
SUCH PLACES AS THE CIVIL SERVICE COMMISSION SHALL BE REGULATION
DESIGNATE, EXAMINE APPLICANTS CONCERNING THEIR QUALIFICATIONS FOR
VOTING.  AN APPLICATION TO AN EXAMINER SHALL BE IN SUCH FORM AS THE
COMMISSION MAY REQUIRE AND SHALL CONTAIN ALLEGATIONS THAT THE APPLICANT
IS NOT OTHERWISE REGISTERED TO VOTE. 

(B)  ANY PERSON WHOM THE EXAMINER FINDS, IN ACCORDANCE WITH
INSTRUCTIONS RECEIVED UNDER SECTION 9(B), TO HAVE THE QUALIFICATIONS
PRESCRIBED BY STATE LAW NOT INCONSISTENT WITH THE CONSTITUTION AND LAWS
OF THE UNITED STATES SHALL PROMPTLY BE PLACED ON A LIST OF ELIGIBLE
VOTERS.  A CHALLENGE TO SUCH LISTING MAY BE MADE IN ACCORDANCE WITH
12 OF THIS ACT.  THE EXAMINER SHALL CERTIFY AND TRANSMIT SUCH LIST, AND
ANY SUPPLEMENTS AS APPROPRIATE, AT LEAST ONCE A MONTH, TO THE OFFICES
OF THE APPROPRIATE ELECTION OFFICIALS, WITH COPIES TO THE ATTORNEY
GENERAL AND THE ATTORNEY GENERAL OF THE STATE, AND ANY SUCH LISTS AND
SUPPLEMENTS THERETO TRANSMITTED DURING THE MONTH SHALL BE AVAILABLE FOR
PUBLIC INSPECTION ON THE LAST BUSINESS DAY OF THE MONTH AND IN ANY
EVENT NOT LATER THAN THE FORTY-FIFTH DAY PRIOR TO ANY ELECTION.  THE
APPROPRIATE STATE OR LOCAL ELECTION OFFICIAL SHALL PLACE SUCH NAMES ON
THE OFFICIAL VOT]NG LIST.  ANY PERSON WHOSE NAME APPEARS ON THE
EXAMINER'S LIST SHALL BE ENTITLED AND ALLOWED TO VOTE IN THE ELECTION
DISTRICT OF HIS RESIDENCE UNLESS AND UNTIL THE APPROPRIATE ELECTION
OFFICIALS SHALL HAVE BEEN NOTIFIED THAT SUCH PERSON HAS BEEN REMOVED
FROM SUCH LIST IN ACCORDANCE WITH SUBSECTION (D):  PROVIDED, THAT NO
PERSON SHALL BE ENTITLED TO VOTE IN ANY ELECTION BY VIRTUE OF THIS ACT
UNLESS HIS NAME SHALL HAVE BEEN CERTIFIED AND TRANSMITTED ON SUCH A
LIST TO THE OFFICES OF THE APPROPRIATE ELECTION OFFICIALS AT LEAST
FORTY-FIVE DAYS PRIOR TO SUCH ELECTION. 

(C)  THE EXAMINER SHALL ISSUE TO EACH PERSON WHOSE NAME APPEARS ON
SUCH A LIST A CERTIFICATE EVIDENCING HIS ELIGIBILITY TO VOTE. 

(D)  A PERSON WHOSE NAME APPEARS ON SUCH A LIST SHALL BE REMOVED
THEREFROM BY AN EXAMINER IF (1) SUCH PERSON HAS BEEN SUCCESSFULLY
CHALLENGED IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN SECTION 9, OR
(2) HE HAS BEEN DETERMINED BY AN EXAMINER TO HAVE LOST HIS ELIGIBILITY
TO VOTE UNDER STATE LAW NOT INCONSISTENT WITH THE CONSTITUTION AND THE
LAWS OF THE UNITED STATES. 

SEC. 8.  WHENEVER AN EXAMINER IS SERVING UNDER THIS ACT IN ANY
POLITICAL SUBDIVISION, THE CIVIL SERVICE COMMISSION MAY ASSIGN, AT THE
REQUEST OF THE ATTORNEY GENERAL, ONE OR MORE PERSONS, WHO MAY BE
OFFICERS OF THE UNITED STATES, (1) TO ENTER AND ATTEND AT ANY PLACE FOR
HOLDING AN ELECTION IN SUCH SUBDIVISION FOR THE PURPOSE OF OBSERVING
WHETHER PERSONS WHO ARE ENTITLED TO VOTE ARE BEING PERMITTED TO VOTE,
AND (2) TO ENTER AND ATTEND AT ANY PLACE FOR TABULATING THE VOTES CAST
AT ANY ELECTION HELD IN SUCH SUBDIVISION FOR THE PURPOSE OF OBSERVING
WHETHER VOTES CAST BY PERSONS ENTITLED TO VOTE ARE BEING PROPERLY
TABULATED.  SUCH PERSONS SO ASSIGNED SHALL REPORT TO AN EXAMINER
APPOINTED FOR SUCH POLITICAL SUBDIVISION, TO THE ATTORNEY GENERAL, AND
IF THE APPOINTMENT OF EXAMINERS HAS BEEN AUTHORIZED PURSUANT TO SECTION
3(A), TO THE COURT. 

SEC. 9.(A)  ANY CHALLENGE TO A LISTING ON AN ELIGIBILITY LIST
PREPARED BY AN EXAMINER SHALL BE HEARD AND DETERMINED BY A HEARING
OFFICER APPOINTED BY AND RESPONSIBLE TO THE CIVIL SERVICE COMMISSION
AND UNDER SUCH RULES AS THE COMMISSION SHALL BY REGULATION PRESCRIBE. 
SUCH CHALLENGE SHALL BE ENTERTAINED ONLY IF FILED AT SUCH OFFICE WITHIN
THE STATE AS THE CIVIL SERVICE COMMISSION SHALL BY REGULATION
DESIGNATE, AND WITHIN TEN DAYS AFTER THE LISTING OF THE CHALLENGED
PERSON IS MADE AVAILABLE FOR PUBLIC INSPECTION, AND IF SUPPORTED BY (1)
THE AFFIDAVITS OF AT LEAST TWO PERSONS HAVING PERSONAL KNOWLEDGE OF THE
FACTS CONSTITUTING GROUNDS FOR THE CHALLENGE, AND (2) A CERTIFICATION
THAT A COPY OF THE CHALLENGE AND AFFIDAVITS HAVE BEEN SERVED BY MAIL OR
IN PERSON UPON THE PERSON CHALLENGED AT HIS PLACE OF RESIDENCE SET OUT
IN THE APPLICATION.  SUCH CHALLENGE SHALL BE DETERMINED WITHIN FIFTEEN
DAYS AFTER IT HAS BEEN FILED.  A PETITION FOR REVIEW OF THE DECISION OF
THE HEARING OFFICER MAY BE FILED IN THE UNITED STATES COURT OF APPEALS
FOR THE CIRCUIT IN WHICH THE PERSON CHALLENGED RESIDES WITHIN FIFTEEN
DAYS AFTER SERVICE OF SUCH DECISION BY MAIL ON THE PERSON PETITIONING
FOR REVIEW BUT NO DECISION OF A HEARING OFFICER SHALL BE REVERSED
UNLESS CLEARLY ERRONEOUS.  ANY PERSON LISTED SHALL BE ENTITLED AND
ALLOWED TO VOTE PENDING FINAL DETERMINATION BY THE HEARING OFFICER AND
BY THE COURT. 

(B)  THE TIMES, PLACES, PROCEDURES, AND FORM FOR APPLICATION AND
LISTING PURSUANT TO THIS ACT AND REMOVALS FROM THE ELIGIBILITY LISTS
SHALL BE PRESCRIBED BY REGULATIONS PROMULGATED BY THE CIVIL SERVICE
COMMISSION AND THE COMMISSION SHALL, AFTER CONSULTATION WITH THE
ATTORNEY GENERAL, INSTRUCT EXAMINERS CONCERNING APPLICABLE STATE LAW
NOT INCONSISTENT WITH THE CONSTITUTION AND LAWS OF THE UNITED STATES
WITH RESPECT TO (1) THE QUALIFICATIONS REQUIRED FOR LISTING, AND (2)
LOSS OF ELIGIBILITY TO VOTE. 

(C)  UPON THE REQUEST OF THE APPLICANT OR THE CHALLENGER OR ON ITS
OWN MOTION THE CIVIL SERVICE COMMISSION SHALL HAVE THE POWER TO REQUIRE
BY SUBPENA THE ATTENDANCE AND TESTIMONY OF WITNESSES AND THE PRODUCTION
OF DOCUMENTARY EVIDENCE RELATING TO ANY MATTER PENDING BEFORE IT UNDER
THE AUTHORITY OF THIS SECTION.  IN CASE OF CONTUMACY OR REFUSAL TO OBEY
A SUBPENA, ANY DISTRICT COURT OF THE UNITED STATES OR THE UNITED STATES
COURT OF ANY TERRITORY OR POSSESSION, OR THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT OF COLUMBIA, WITHIN THE JURISDICTION OF
WHICH SAID PERSON GUILTY OF CONTUMACY OR REFUSAL TO OBEY IS FOUND OR
RESIDES OR IS DOMICILED OR TRANSACTS BUSINESS, OR HAS APPOINTED AN
AGENT FOR RECEIPT OF SERVICE OF PROCESS, UPON APPLICATION BY THE
ATTORNEY GENERAL OF THE UNITED STATES SHALL HAVE JURISDICTION TO ISSUE
TO SUCH PERSON AN ORDER REQUIRING SUCH PERSON TO APPEAR BEFORE THE
COMMISSION OR A HEARING OFFICER, THERE TO PRODUCE PERTINENT, RELEVANT,
AND NONPRIVILEGED DOCUMENTARY EVIDENCE IF SO ORDERED, OR THERE TO GIVE
TESTIMONY TOUCHING THE MATTER UNDER INVESTIGATION; AND ANY FAILURE TO
OBEY SUCH ORDER OF THE COURT MAY BE PUNISHED BY SAID COURT AS A
CONTEMPT THEREOF. 

SEC. 10.(A)  THE CONGRESS FINDS THAT THE REQUIREMENT OF THE PAYMENT
OF A POLL TAX AS A PRECONDITION TO VOTING (I) PRECLUDES PERSONS OF
LIMITED MEANS FROM VOTING OR IMPOSES UNREASONABLE FINANCIAL HARDSHIP
UPON SUCH PERSONS AS A PRECONDITION TO THEIR EXERCISE OF THE FRANCHISE,
(II) DOES NOT BEAR A REASONABLE RELATIONSHIP TO ANY LEGITIMATE STATE
INTEREST IN THE CONDUCT OF ELECTIONS, AND (III) IN SOME AREAS HAS THE
PURPOSE OR EFFECT OF DENYING PERSONS THE RIGHT TO VOTE BECAUSE OF RACE
OR COLOR.  UPON THE BASIS OF THESE FINDINGS, CONGRESS DECLARES THAT THE
CONSTITUTIONAL RIGHT OF CITIZENS TO VOTE IS DENIED OR ABRIDGED IN SOME
AREAS BY THE REQUIREMENT OF THE PAYMENT OF A POLL TAX AS A PRECONDITION
TO VOTING. 

(B)  IN THE EXERCISE OF THE POWERS OF CONGRESS UNDER SECTION 5 OF THE
FOURTEENTH AMENDMENT AND SECTION 2 OF THE FIFTEENTH AMENDMENT, THE
ATTORNEY GENERAL IS AUTHORIZED AND DIRECTED TO INSTITUTE FORTHWITH IN
THE NAME OF THE UNITED STATES SUCH ACTIONS, INCLUDING ACTIONS AGAINST
STATES OR POLITICAL SUBDIVISIONS, FOR DECLARATORY JUDGMENT OR
INJUNCTIVE RELIEF AGAINST THE ENFORCEMENT OF ANY REQUIREMENT OF THE
PAYMENT OF A POLL TAX AS A PRECONDITION TO VOTING, OR SUBSTITUTE
THEREFOR ENACTED AFTER NOVEMBER 1, 1964, AS WILL BE NECESSARY TO
IMPLEMENT THE DECLARATION OF SUBSECTION (A) AND THE PURPOSES OF THIS

(C)  THE DISTRICT COURTS OF THE UNITED STATES SHALL HAVE JURISDICTION
OF SUCH ACTIONS WHICH SHALL BE HEARD AND DETERMINED BY A COURT OF THREE
JUDGES IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2284 OF TITLE 28 OF
THE U.S.C. AND ANY APPEAL SHALL LIE TO THE SUPREME COURT.  IT SHALL BE
THE DUTY OF THE JUDGES DESIGNATED TO HEAR THE CASE TO ASSIGN THE CASE
FOR HEARING AT THE EARLIEST PRACTICABLE DATE, TO PARTICIPATE IN THE
HEARING AND DETERMINATION THEREOF, AND TO CAUSE THE CASE TO BE IN EVERY
WAY EXPEDITED. 

(D)  DURING THE PENDENCY OF SUCH ACTIONS, AND THEREAFTER IF THE
COURTS, NOTWITHSTANDING THIS ACTION BY THE CONGRESS, SHOULD DECLARE THE
REQUIREMENT OF THE PAYMENT OF A POLL TAX TO BE CONSTITUTIONAL, NO
CITIZEN OF THE UNITED STATES WHO IS A RESIDENT OF A STATE OR POLITICAL
SUBDIVISION WITH RESPECT TO WHICH DETERMINATIONS HAVE BEEN MADE UNDER
SUBSECTION 4(B) AND A DECLARATORY JUDGMENT HAS NOT BEEN ENTERED UNDER
SUBSECTION 4(A), DURING THE FIRST YEAR HE BECOMES OTHERWISE ENTITLED TO
VOTE BY REASON OF REGISTRATION BY STATE OR LOCAL OFFICIALS OR LISTING
BY AN EXAMINER, SHALL BE DENIED THE RIGHT TO VOTE FOR FAILURE TO PAY A
POLL TAX IF HE TENDERS PAYMENT OF SUCH TAX FOR THE CURRENT YEAR TO AN
EXAMINER OR TO THE APPROPRIATE STATE OR LOCAL OFFICIAL AT LEAST FORTY
FIVE DAYS PRIOR TO ELECTION, WHETHER OR NOT SUCH TENDER WOULD BE TIMELY
OR ADEQUATE UNDER STATE LAW.  AN EXAMINER SHALL HAVE AUTHORITY TO
ACCEPT SUCH PAYMENT FROM ANY PERSON AUTHORIZED BY THIS ACT TO MAKE AN
APPLICATION FOR LISTING, AND SHALL ISSUE A RECEIPT FOR SUCH PAYMENT. 
THE EXAMINER SHALL TRANSMIT PROMPTLY ANY SUCH POLL TAX PAYMENT TO THE
OFFICE OF THE STATE OR LOCAL OFFICIAL AUTHORIZED TO RECEIVE SUCH
PAYMENT UNDER STATE LAW, TOGETHER WITH THE NAME AND ADDRESS OF THE
APPLICANT. 

SEC. 11.(A)  NO PERSON ACTING UNDER COLOR OF LAW SHALL FAIL OR REFUSE
TO PERMIT ANY PERSON TO VOTE WHO IS ENTITLED TO VOTE UNDER ANY
PROVISION OF THIS ACT OR IS OTHERWISE QUALIFIED TO VOTE, OR WILLFULLY
FAIL OR REFUSE TO TABULATE, COUNT, AND REPORT SUCH PERSON'S VOTE. 

(B)  NO PERSON, WHETHER ACTING UNDER COLOR OF LAW OR OTHERWISE, SHALL
INTIMIDATE, THREATEN, OR COERCE, OR ATTEMPT TO INTIMIDATE, THREATEN, OR
COERCE ANY PERSON FOR VOTING OR ATTEMPTING TO VOTE, OR INTIMIDATE,
THREATEN, OR COERCE, OR ATTEMPT TO INTIMIDATE, THREATEN, OR COERCE ANY
PERSON FOR URGING OR AIDING ANY PERSON TO VOTE OR ATTEMPT TO VOTE, OR
INTIMIDATE, THREATEN, OR COERCE ANY PERSON FOR EXERCISING ANY POWERS OR
DUTIES UNDER SECTION 3(A), 6, 8, 9, 10, OR 12(E).    (C)  WHOEVER
KNOWINGLY OR WILLFULLY GIVES FALSE INFORMATION AS TO HIS NAME, ADDRESS,
OR PERIOD OF RESIDENCE IN THE VOTING DISTRICT FOR THE PURPOSE OF
ESTABLISHING HIS ELIGIBILITY TO REGISTER OR VOTE, OR CONSPIRES WITH
ANOTHER INDIVIDUAL FOR THE PURPOSE OF ENCOURAGING HIS FALSE
REGISTRATION TO VOTE OR ILLEGAL VOTING, OR PAYS OR OFFERS TO PAY OR
ACCEPTS PAYMENT EITHER FOR REGISTRATION TO VOTE OR FOR VOTING SHALL BE
FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR
BOTH: PROVIDED, HOWEVER, THAT THIS PROVISION SHALL BE APPLICABLE ONLY
TO GENERAL, SPECIAL, OR PRIMARY ELECTIONS HELD SOLELY OR IN PART FOR
THE PURPOSE OF SELECTING OR ELECTING ANY CANDIDATE FOR THE OFFICE OF
PRESIDENT, VICE PRESIDENT, PRESIDENTIAL ELECTOR, MEMBER OF THE UNITED
STATES SENATE, MEMBER OF THE UNITED STATES HOUSE OF REPRESENTATIVES, OR
DELEGATES OR COMMISSIONERS FROM THE TERRITORIES OR POSSESSIONS, OR
RESIDENT COMMISSIONER OF THE COMMONWEALTH OF PUERTO RICO. 

(D)  WHOEVER, IN ANY MATTER WITHIN THE JURISDICTION OF AN EXAMINER OR
HEARING OFFICER KNOWINGLY AND WILLFULLY FALSIFIES OR CONCEALS A
MATERIAL FACT, OR MAKES ANY FALSE, FICTITIOUS, OR FRAUDULENT STATEMENTS
OR REPRESENTATIONS, OR MAKES OR USES ANY FALSE WRITING OR DOCUMENT
KNOWING THE SAME TO CONTAIN ANY FALSE, FICTITIOUS, OR FRAUDULENT
STATEMENT OR ENTRY, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED
NOT MORE THAN FIVE YEARS, OR BOTH. 

SEC. 12.(A)  WHOEVER SHALL DEPRIVE OR ATTEMPT TO DEPRIVE ANY PERSON
OF ANY RIGHT SECURED BY SECTION 2, 3, 4, 5, 7, OR 10 OR SHALL VIOLATE
IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH. 

(B)  WHOEVER, WITHIN A YEAR FOLLOWING AN ELECTION IN A POLITICAL
SUBDIVISION IN WHICH AN EXAMINER HAS BEEN APPOINTED (1) DESTROYS,
DEFACES, MUTILATES, OR OTHERWISE ALTERS THE MARKING OF A PAPER BALLOT
WHICH HAS BEEN CAST IN SUCH ELECTION, OR (2) ALTERS ANY OFFICIAL RECORD
OF VOTING IN SUCH ELECTION TABULATED FROM A VOTING MACHINE OR
OTHERWISE, SHALL BE FINED NOT MORE THAN $5,000, OR IMPRISONED NOT MORE
THAN FIVE YEARS, OR BOTH. 

(C)  WHOEVER CONSPIRES TO VIOLATE THE PROVISIONS OF SUBSECTION (A) OR
(B) OF THIS SECTION, OR INTERFERES WITH ANY RIGHT SECURED BY SECTION 2,
3, 4, 5, 7, 10, OR 11(A) OR (B) SHALL BE FINED NOT MORE THAN $5,000, OR
IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH. 

(D)  WHENEVER ANY PERSON HAS ENGAGED OR THERE ARE REASONABLE GROUNDS
TO BELIEVE THAT ANY PERSON IS ABOUT TO ENGAGE IN ANY ACT OR PRACTICE
PROHIBITED BY SECTION 2, 3, 4, 5, 7, 10, 11, OR SUBSECTION (B) OF THIS
IN THE NAME OF THE UNITED STATES, AN ACTION FOR PREVENTIVE RELIEF,
INCLUDING AN APPLICATION FOR A TEMPORARY OR PERMANENT INJUNCTION,
RESTRAINING ORDER, OR OTHER ORDER, AND INCLUDING AN ORDER DIRECTED TO
THE STATE AND STATE OR LOCAL ELECTION OFFICIALS TO REQUIRE THEM (1) TO
PERMIT PERSONS LISTED UNDER THIS ACT TO VOTE AND (2) TO COUNT SUCH
VOTES. 

(E)  WHENEVER IN ANY POLITICAL SUBDIVISION IN WHICH THERE ARE
EXAMINERS APPOINTED PURSUANT TO THIS ACT ANY PERSONS ALLEGE TO SUCH AN
EXAMINER WITHIN FORTY-EIGHT HOURS AFTER THE CLOSING OF THE POLLS THAT
NOTWITHSTANDING (1) THEIR LISTING UNDER THIS ACT OR REGISTRATION BY AN
APPROPRIATE ELECTION OFFICIAL AND (2) THEIR ELIGIBILITY TO VOTE, THEY
HAVE NOT BEEN PERMITTED TO VOTE IN SUCH ELECTION, THE EXAMINER SHALL
FORTHWITH NOTIFY THE ATTORNEY GENERAL IF SUCH ALLEGATIONS IN HIS
OPINION APPEAR TO BE WELL FOUNDED.  UPON RECEIPT OF SUCH NOTIFICATION,
THE ATTORNEY GENERAL MAY FORTHWITH FILE WITH THE DISTRICT COURT AN
APPLICATION FOR AN ORDER PROVIDING FOR THE MARKING, CASTING, AND
COUNTING OF THE BALLOTS OF SUCH PERSONS AND REQUIRING THE INCLUSION OF
THEIR VOTES IN THE TOTAL VOTE BEFORE THE RESULTS OF SUCH ELECTION SHALL
BE DEEMED FINAL AND ANY FORCE OR EFFECT GIVEN THERETO.  THE DISTRICT
COURT SHALL HEAR AND DETERMINE SUCH MATTERS IMMEDIATELY AFTER THE
FILING OF SUCH APPLICATION.  THE REMEDY PROVIDED IN THIS SUBSECTION
SHALL NOT PRECLUDE ANY REMEDY AVAILABLE UNDER STATE OR FEDERAL LAW. 

(F)  THE DISTRICT COURTS OF THE UNITED STATES SHALL HAVE JURISDICTION
OF PROCEEDINGS INSTITUTED PURSUANT TO THIS SECTION AND SHALL EXERCISE
THE SAME WITHOUT REGARD TO WHETHER A PERSON ASSERTING RIGHTS UNDER THE
PROVISIONS OF THIS ACT SHALL HAVE EXHAUSTED ANY ADMINISTRATIVE OR OTHER
REMEDIES THAT MAY BE PROVIDED BY LAW. 

SEC. 13.  LISTING PROCEDURES SHALL BE TERMINATED IN ANY POLITICAL
SUBDIVISION OF ANY STATE (A) WITH RESPECT TO EXAMINERS APPOINTED
PURSUANT TO CLAUSE (B) OF SECTION 6 WHENEVER THE ATTORNEY GENERAL
NOTIFIES THE CIVIL SERVICE COMMISSION, OR WHENEVER THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA DETERMINES IN AN ACTION FOR DECLARATORY
JUDGMENT BROUGHT BY ANY POLITICAL SUBDIVISION WITH RESPECT TO WHICH THE
DIRECTOR OF THE CENSUS HAS DETERMINED THAT MORE THAN 50 PER CENTUM OF
THE NONWHITE PERSONS OF VOTING AGE RESIDING THEREIN ARE REGISTERED TO
VOTE, (1) THAT ALL PERSONS LISTED BY AN EXAMINER FOR SUCH SUBDIVISION
HAVE BEEN PLACED ON THE APPROPRIATE VOTING REGISTRATION ROLL, AND (2)
THAT THERE IS NO LONGER REASONABLE CAUSE TO BELIEVE THAT PERSONS WILL
BE DEPRIVED OF OR DENIED THE RIGHT TO VOTE ON ACCOUNT OF RACE OR COLOR
IN SUCH SUBDIVISION, AND (B), WITH RESPECT TO EXAMINERS APPOINTED
PURSUANT TO SECTION 3(A), UPON ORDER OF THE AUTHORIZING COURT.  A
POLITICAL SUBDIVISION MAY PETITION THE ATTORNEY GENERAL FOR THE
TERMINATION OF LISTING PROCEDURES UNDER CLAUSE (A) OF THIS SECTION, AND
MAY PETITION THE ATTORNEY GENERAL TO REQUEST THE DIRECTOR OF THE CENSUS
TO TAKE SUCH SURVEY OR CENSUS AS MAY BE APPROPRIATE FOR THE MAKING OF
THE DETERMINATION PROVIDED FOR IN THIS SECTION.  THE DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA SHALL HAVE JURISDICTION TO REQUIRE SUCH SURVEY
OR CENSUS TO BE MADE BY THE DIRECTOR OF THE CENSUS AND IT SHALL REQUIRE
HIM TO DO SO IF IT DEEMS THE ATTORNEY GENERAL'S REFUSAL TO REQUEST SUCH
SURVEY OR CENSUS TO BE ARBITRARY OR UNREASONABLE. 

SEC. 14.(A)  ALL CASES OF CRIMINAL CONTEMPT ARISING UNDER THE
PROVISIONS OF THIS ACT SHALL BE GOVERNED BY SECTION 151 OF THE CIVIL
RIGHTS ACT OF 1957 (42 U.S.C. 1995). 

(B)  NO COURT OTHER THAN THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA OR A COURT OF APPEALS IN ANY PROCEEDING UNDER SECTION 9 SHALL
HAVE JURISDICTION TO ISSUE ANY DECLARATORY JUDGMENT PURSUANT TO SECTION
4 OR SECTION 5 OR ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT
INJUNCTION AGAINST THE EXECUTION OR ENFORCEMENT OF ANY PROVISION OF
THIS ACT OR ANY ACTION OF ANY FEDERAL OFFICER OR EMPLOYEE PURSUANT
HERETO. 

(C)(1)  THE TERMS "VOTE" OR "VOTING" SHALL INCLUDE ALL ACTION
NECESSARY TO MAKE A VOTE EFFECTIVE IN ANY PRIMARY, SPECIAL, OR GENERAL
ELECTION, INCLUDING, BUT NOT LIMITED TO, REGISTRATION, LISTING PURSUANT
TO THIS ACT, OR OTHER ACTION REQUIRED BY LAW PREREQUISITE TO VOTING,
CASTING A BALLOT, AND HAVING SUCH BALLOT COUNTED PROPERLY AND INCLUDED
IN THE APPROPRIATE TOTALS OF VOTES CAST WITH RESPECT TO CANDIDATES FOR
PUBLIC OR PARTY OFFICE AND PROPOSITIONS FOR WHICH VOTES ARE RECEIVED IN
AN ELECTION. 

(2)  THE TERM "POLITICAL SUBDIVISION" SHALL MEAN ANY COUNTY OR
PARISH, EXCEPT THAT WHERE REGISTRATION FOR VOTING IS NOT CONDUCTED
UNDER THE SUPERVISION OF A COUNTY OR PARISH, THE TERM SHALL INCLUDE ANY
OTHER SUBDIVISION OF A STATE WHICH CONDUCTS REGISTRATION FOR VOTING. 

(D)  IN ANY ACTION FOR A DECLARATORY JUDGMENT BROUGHT PURSUANT TO
REQUIRED TO ATTEND THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MAY
BE SERVED IN ANY JUDICIAL DISTRICT OF THE UNITED STATES:  PROVIDED,
THAT NO WRIT OF SUBPENA SHALL ISSUE FOR WITNESSES WITHOUT THE DISTRICT
OF COLUMBIA AT A GREATER DISTANCE THAN ONE HUNDRED MILES FROM THE PLACE
OF HOLDING COURT WITHOUT THE PERMISSION OF THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA BEING FIRST HAD UPON PROPER APPLICATION AND CAUSE
SHOWN. 

SEC. 15.  SECTION 2004 OF THE REVISED STATUTES (42 U.S.C. 1971), AS
AMENDED BY SECTION 131 OF THE CIVIL RIGHTS ACT OF 1957 (71 STAT. 637),
AND AMENDED BY SECTION 601 OF THE CIVIL RIGHTS ACT OF 1960 (74 STAT.
90), AND AS FURTHER AMENDED BY SECTION 101 OF THE CIVIL RIGHTS ACT OF
1964 (78 STAT. 241), IS FURTHER AMENDED AS FOLLOWS: 

(A)  DELETE THE WORD "FEDERAL" WHEREVER IT APPEARS IN SUBSECTIONS (A)
AND (C); 

(B)  REPEAL SUBSECTION (F) AND DESIGNATE THE PRESENT SUBSECTIONS (G)
AND (H) AS (F) AND (G), RESPECTIVELY. 

SEC. 16.  THE ATTORNEY GENERAL AND THE SECRETARY OF DEFENSE, JOINTLY,
SHALL MAKE A FULL AND COMPLETE STUDY TO DETERMINE WHETHER, UNDER THE
LAWS OR PRACTICES OF ANY STATE OR STATES, THERE ARE PRECONDITIONS TO
VOTING, WHICH MIGHT TEND TO RESULT IN DISCRIMINATION AGAINST CITIZENS
SERVING IN THE ARMED FORCES OF THE UNITED STATES SEEKING TO VOTE.  SUCH
OFFICIALS SHALL, JOINTLY, MAKE A REPORT TO THE CONGRESS NOT LATER THAN
JUNE 30, 1966, CONTAINING THE RESULTS OF SUCH STUDY, TOGETHER WITH A
LIST OF ANY STATES IN WHICH SUCH PRECONDITIONS EXIST, AND SHALL INCLUDE
IN SUCH REPORT SUCH RECOMMENDATIONS FOR LEGISLATION AS THEY DEEM
ADVISABLE TO PREVENT DISCRIMINATION IN VOTING AGAINST CITIZENS SERVING
IN THE ARMED FORCES OF THE UNITED STATES. 

SEC. 17.  NOTHING IN THIS ACT SHALL BE CONSTRUED TO DENY, IMPAIR, OR
OTHERWISE ADVERSELY AFFECT THE RIGHT TO VOTE OF ANY PERSON REGISTERED
TO VOTE UNDER THE LAW OF ANY STATE OR POLITICAL SUBDIVISION. 

SEC. 18.  THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED SUCH SUMS AS
ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT. 

SEC. 19.  IF ANY PROVISION OF THIS ACT OR THE APPLICATION THEREOF TO
ANY PERSON OR CIRCUMSTANCES IS HELD INVALID, THE REMAINDER OF THE ACT
AND THE APPLICATION OF THE PROVISION TO OTHER PERSONS NOT SIMILARLY
SITUATED OR TO OTHER CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY. 

APPROVED AUGUST 6, 1965. 

MR. JUSTICE BLACK, CONCURRING AND DISSENTING. 

I AGREE WITH SUBSTANTIALLY ALL OF THE COURT'S OPINION SUSTAINING THE
POWER OF CONGRESS UNDER SEC 2 OF THE FIFTEENTH AMENDMENT TO SUSPEND
STATE LITERACY TESTS AND SIMILAR VOTING QUALIFICATIONS AND TO AUTHORIZE
THE ATTORNEY GENERAL TO SECURE THE APPOINTMENT OF FEDERAL EXAMINERS TO
REGISTER QUALIFIED VOTERS IN VARIOUS SECTIONS OF THE COUNTRY.  SECTION
1 OF THE FIFTEENTH AMENDMENT PROVIDES THAT "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."  IN ADDITION TO THIS UNEQUIVOCAL COMMAND TO THE STATES
AND THE FEDERAL GOVERNMENT THAT NO CITIZEN SHALL HAVE HIS RIGHT TO VOTE
DENIED OR ABRIDGED BECAUSE OF RACE OR COLOR, SEC 2 OF THE AMENDMENT
UNMISTAKABLY GIVES CONGRESS SPECIFIC POWER TO GO FURTHER AND PASS
APPROPRIATE LEGISLATION TO PROTECT THIS RIGHT TO VOTE AGAINST ANY
METHOD OF ABRIDGMENT NO MATTER HOW SUBTLE.  COMPARE MY DISSENTING
OPINION IN BELL V. MARYLAND, 378 U.S. 226, 318.  I HAVE NO DOUBT
WHATEVER AS TO THE POWER OF CONGRESS UNDER SEC 2 TO ENACT THE
PROVISIONS OF THE VOTING RIGHTS ACT OF 1965 DEALING WITH THE SUSPENSION
OF STATE VOTING TESTS THAT HAVE BEEN USED AS NOTORIOUS MEANS TO DENY
AND ABRIDGE VOTING RIGHTS ON RACIAL GROUNDS.  THIS SAME CONGRESSIONAL
POWER NECESSARILY EXISTS TO AUTHORIZE APPOINTMENT OF FEDERAL
EXAMINERS.  I ALSO AGREE WITH THE JUDGMENT OF THE COURT UPHOLDING SEC
4(B) OF THE ACT WHICH SETS OUT A FORMULA FOR DETERMINING WHEN AND WHERE
THE MAJOR REMEDIAL SECTIONS OF THE ACT TAKE EFFECT.  I REACH THIS
CONCLUSION, HOWEVER, FOR A SOMEWHAT DIFFERENT REASON THAN THAT STATED
BY THE COURT, WHICH IS THAT "THE COVERAGE FORMULA IS RATIONAL IN BOTH
PRACTICE AND THEORY."  I DO NOT BASE MY CONCLUSION ON THE FACT THAT THE
FORMULA IS RATIONAL, FOR IT IS ENOUGH FOR ME THAT CONGRESS BY CREATING
THIS FORMULA HAS MERELY EXERCISED ITS HITHERTO UNQUESTIONED AND
UNDISPUTED POWER TO DECIDE WHEN, WHERE, AND UPON WHAT CONDITIONS ITS
LAWS SHALL GO INTO EFFECT.  BY STATING IN SPECIFIC DETAIL THAT THE
MAJOR REMEDIAL SECTIONS OF THE ACT ARE TO BE APPLIED IN AREAS WHERE
CERTAIN CONDITIONS EXIST, AND BY GRANTING THE ATTORNEY GENERAL AND THE
DIRECTOR OF THE CENSUS UNREVIEWABLE POWER TO MAKE THE MECHANICAL
DETERMINATION OF WHICH AREAS COME WITHIN THE FORMULA OF SEC 4(B), I
BELIEVE THAT CONGRESS HAS ACTED WITHIN ITS ESTABLISHED POWER TO SET OUT
PRECONDITIONS UPON WHICH THE ACT IS TO GO INTO EFFECT.  SEE, E.G.,
MARTIN V. MOTT, 12 WHEAT.  19; UNITED STATES V. BUSH & CO., 310 U.S.
371; HIRABAYASHI V. UNITED STATES, 320 U.S. 81. 

THOUGH, AS I HAVE SAID, I AGREE WITH MOST OF THE COURT'S CONCLUSIONS,
I DISSENT FROM ITS HOLDING THAT EVERY PART OF SEC 5 OF THE ACT IS
CONSTITUTIONAL.  SECTION 4(A), TO WHICH SEC 5 IS LINKED, SUSPENDS FOR
FIVE YEARS ALL LITERACY TESTS AND SIMILAR DEVICES IN THOSE STATES
COMING WITHIN THE FORMULA OF SEC 4(B).  SECTION 5 GOES ON TO PROVIDE
THAT A STATE COVERED BY SEC 4(B) CAN IN NO WAY AMEND ITS CONSTITUTION
OR LAWS RELATING TO VOTING WITHOUT FIRST TRYING TO PERSUADE THE
ATTORNEY GENERAL OF THE UNITED STATES OR THE FEDERAL DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA THAT THE NEW PROPOSED LAWS DO NOT HAVE THE
PURPOSE AND WILL NOT HAVE THE EFFECT OF DENYING THE RIGHT TO VOTE TO
CITIZENS ON ACCOUNT OF THEIR RACE OR COLOR.  I THINK THIS SECTION IS
UNCONSTITUTIONAL ON AT LEAST TWO GROUNDS. 

(A)  THE CONSTITUTION GIVES FEDERAL COURTS JURISDICTION OVER CASES
AND CONTROVERSIES ONLY.  IF IT CAN BE SAID THAT ANY CASE OR CONTROVERSY
ARISED UNDER THIS SECTION WHICH GIVES THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA JURISDICTION TO APPROVE OR REJECT STATE LAWS OR
CONSTITUTIONAL AMENDMENTS, THEN THE CASE OR CONTROVERSY MUST BE BETWEEN
A STATE AND THE UNITED STATES GOVERNMENT.  BUT IT IS HARD FOR ME TO
BELIEVE THAT A JUSTICIABLE CONTROVERSY CAN ARISE IN THE CONSTITUTIONAL
SENSE FROM A DESIRE BY THE UNITED STATES GOVERNMENT OR SOME OF ITS
OFFICIALS TO DETERMINE IN ADVANCE WHAT LEGISLATIVE PROVISIONS A STATE
MAY ENACT OR WHAT CONSTITUTIONAL AMENDMENTS IT MAY ADOPT.  IF THIS
DISPUTE BETWEEN THE FEDERAL GOVERNMENT AND THE STATES AMOUNTS TO A CASE
OR CONTROVERSY IT IS A FAR CRY FROM THE TRADITIONAL CONSTITUTIONAL
NOTION OF A CASE OR CONTROVERSY AS A DISPUTE OVER THE MEANING OF
ENFORCEABLE LAWS OR THE MANNER IN WHICH THEY ARE APPLIED.  AND IF BY
THIS SECTION CONGRESS HAS CREATED A CASE OR CONTROVERSY, AND I DO NOT
BELIEVE IT HAS, THEN IT SEEMS TO ME THAT THE MOST APPROPRIATE JUDICIAL
FORUM FOR SETTLING THESE IMPORTANT QUESTIONS IS THIS COURT ACTING UNDER
ITS ORIGINAL ART. III, SEC 2, JURISDICTION TO TRY CASES IN WHICH A
STATE IS A PARTY.  (FN1) AT LEAST A TRIAL IN THIS COURT WOULD TREAT THE
STATES WITH THE DIGNITY TO WHICH THEY SHOULD BE ENTITLED AS CONSTITUENT
MEMBERS OF OUR FEDERAL UNION. 

THE FORM OF WORDS AND THE MANIPULATION OF PRESUMPTIONS USED IN SEC 5
TO CREATE THE ILLUSION OF A CASE OR CONTROVERSY SHOULD NOT BE ALLOWED
TO CLOUD THE EFFECT OF THAT SECTION.  BY REQUIRING A STATE TO ASK A
FEDERAL COURT TO APPROVE THE VALIDITY OF A PROPOSED LAW WHICH HAS IN NO
WAY BECOME OPERATIVE, CONGRESS HAS ASKED THE STATE TO SECURE PRECISELY
THE TYPE OF ADVISORY OPINION OUR CONSTITUTION FORBIDS.  AS I HAVE
POINTED OUT ELSEWHERE, SEE MY DISSENTING OPINION IN GRISWOLD V.
CONNECTICUT, 381 U.S. 479, 507, N. 6, PP. 513-515, SOME OF THOSE
DRAFTING OUR CONSTITUTION WANTED TO GIVE THE FEDERAL COURTS THE POWER
TO ISSUE ADVISORY OPINIONS AND PROPOSE NEW LAWS TO THE LEGISLATIVE
BODY.  THESE SUGGESTIONS WERE REJECTED.  WE SHOULD LIKEWISE REJECT ANY
ATTEMPT BY CONGRESS TO FLOUT CONSTITUTIONAL LIMITATIONS BY AUTHORIZING
FEDERAL COURTS TO RENDER ADVISORY OPINIONS WHEN THERE IS NO CASE OR
CONTROVERSY BEFORE THEM.  CONGRESS HAS AMPLE POWER TO PROTECT THE
RIGHTS OF CITIZENS TO VOTE WITHOUT RESORTING TO THE UNNECESSARILY
CIRCUITOUS, INDIRECT AND UNCONSTITUTIONAL ROUTE IT HAS ADOPTED IN THIS

(B)  MY SECOND AND MORE BASIC OBJECTION TO SEC 5 IS THAT CONGRESS HAS
HERE EXERCISED ITS POWER UNDER SEC 2 OF THE FIFTEENTH AMENDMENT THROUGH
THE ADOPTION OF MEANS THAT CONFLICT WITH THE MOST BASIC PRINCIPLES OF
THE CONSTITUTION.  AS THE COURT SAYS THE LIMITATIONS OF THE POWER
GRANTED UNDER SEC 2 ARE THE SAME AS THE LIMITATIONS IMPOSED ON THE
EXERCISE OF ANY OF THE POWERS EXPRESSLY GRANTED CONGRESS BY THE
CONSTITUTION.  THE CLASSIC FORMULATION OF THESE CONSTITUTIONAL
LIMITATIONS WAS STATED BY CHIEF JUSTICE MARSHALL WHEN HE SAID IN
MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 421, "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."  SECTION 5, BY PROVIDING THAT SOME OF THE STATES
CANNOT PASS STATE LAWS OR ADOPT STATE CONSTITUTIONAL AMENDMENTS WITHOUT
FIRST BEING COMPEELED TO BEG FEDERAL AUTHORITIES TO APPROVE THEIR
POLICIES, SO DISTORTS OUR CONSTITUTIONAL STRUCTURE OF GOVERNMENT AS TO
RENDER ANY DISTINCTION DRAWN IN THE CONSTITUTION BETWEEN STATE AND
FEDERAL POWER ALMOST MEANINGLESS.  ONE OF THE MOST BASIC PREMISES UPON
WHICH OUR STRUCTURE OF GOVERNMENT WAS FOUNDED WAS THAT THE FEDERAL
GOVERNMENT WAS TO HAVE CERTAIN SPECIFIC AND LIMITED POWERS AND NO
OTHERS, AND ALL OTHER POWER WAS TO BE RESERVED EITHER "TO THE STATES
RESPECTIVELY, OR TO THE PEOPLE."  CERTAINLY IF ALL THE PROVISIONS OF
OUR CONSTITUTION WHICH LIMIT THE POWER OF THE FEDERAL GOVERNMENT AND
RESERVE OTHER POWER TO THE STATES ARE TO MEAN ANYTHING, THEY MEAN AT
LEAST THAT THE STATES HAVE POWER TO PASS LAWS AND AMEND THEIR
CONSTITUTIONS WITHOUT FIRST SENDING THEIR OFFICIALS HUNDREDS OF MILES
AWAY TO BEG FEDERAL AUTHORITIES TO APPROVE THEM.  (FN2)  MOREOVER, IT
SEEMS TO ME THAT SEC 5 WHICH GIVES FEDERAL OFFICIALS POWER TO VETO
STATE LAWS THEY DO NOT LIKE IS IN DIRECT CONFLICT WITH THE CLEAR
COMMAND OF OUR CONSTITUTION THAT "THE UNITED STATES SHALL GUARANTEE TO
EVERY STATE IN THIS UNION A REPUBLICAN FORM OF GOVERNMENT."  I CANNOT
HELP BUT BELIEVE THAT THE INEVITABLE EFFECT OF ANY SUCH LAW WHICH
FORCES ANY ONE OF THE STATES TO ENTREAT FEDERAL AUTHORITES IN FAR-AWAY
PLACES FOR APPROVAL OF LOCAL LAWS BEFORE THEY CAN BECOME EFFECTIVE IS
TO CREATE THE IMPRESSION THAT THE STATE OR STATES TREATED IN THIS WAY
ARE LITTLE MORE THAN CONQUERED PROVINCES.  AND IF ONE LAW CONCERNING
VOTING CAN MAKE THE STATES PLEAD FOR THIS APPROVAL BY A DISTANT FEDERAL
COURT OR THE UNITED STATES ATTORNEY GENERAL, OTHER LAWS ON DIFFERENT
SUBJECTS CAN FORCE THE STATES TO SEEK THE ADVANCE APPROVAL NOT ONLY OF
THE ATTORNEY GENERAL BUT OF THE PRESIDENT HIMSELF OR ANY OTHER CHOSEN
MEMBERS OF HIS STAFF.  IT IS INCONCEIVABLE TO ME THAT SUCH A RADICAL
DEGRADATION OF STATE POWER WAS INTENDED IN ANY OF THE PROVISIONS OF OUR
CONSTITUTION OR ITS AMENDMENTS.  OF COURSE I DO NOT MEAN TO CAST ANY
DOUBT WHATEVER UPON THE INDISPUTABLE POWER OF THE FEDERAL GOVERNMENT TO
INVALIDATE A STATE LAW ONCE ENACTED AND OPERATIVE ON THE GROUND THAT IT
INTRUDES INTO THE AREA OF SUPREME FEDERAL POWER.  BUT THE FEDERAL
GOVERNMENT HAS HERETOFORE ALWAYS BEEN CONTENT TO EXERCISE THIS POWER TO
PROTECT FEDERAL SUPREMACY BY AUTHORIZING ITS AGENTS TO BRING LAWSUITS
AGAINST STATE OFFICIALS ONCE AN OPERATIVE STATE LAW HAS CREATED AN
ACTUAL CASE AND CONTROVERSY.  A FEDERAL LAW WHICH ASSUMES THE POWER TO
COMPEL THE STATES TO SUBMIT IN ADVANCE ANY PROPOSED LEGISLATION THEY
HAVE FOR APPROVAL BY FEDERAL AGENTS APPROACHES DANGEROUSLY NEAR TO
WIPING THE STATES OUT AS USEFUL AND EFFECTIVE UNITS IN THE GOVERNMENT
OF OUR COUNTRY.  I CANNOT AGREE TO ANY CONSTITUTIONAL INTERPRETATION
THAT LEADS INEVITABLY TO SUCH A RESULT. 

I SEE NO REASON TO READ INTO THE CONSTITUTION MEANINGS IT DID NOT
HAVE WHEN IT WAS ADOPTED AND WHICH HAVE NOT BEEN PUT INTO IT SINCE. 
THE PROCEEDINGS OF THE ORIGINAL CONSTITUTIONAL CONVENTION SHOW BEYOND
ALL DOUBT THAT THE POWER TO VETO OR NEGATIVE STATE LAWS WAS DENIED
CONGRESS.  ON SEVERAL OCCASIONS PROPOSALS WERE SUBMITTED TO THE
CONVENTION TO GRANT THIS POWER TO CONGRESS.  THESE PROPOSALS WERE
DEBATED EXTENSIVELY AND ON EVERY OCCASION WHEN SUBMITTED FOR VOTE THEY
WERE OVERWHELMINGLY REJECTED.  (FN3)  THE REFUSAL TO GIVE CONGRESS THIS
EXTRAORDINARY POWER TO VETO STATE LAWS WAS BASED ON THE BELIEF THAT IF
SUCH POWER RESIDED IN CONGRESS THE STATES WOULD BE HELPLESS TO FUNCTION
AS EFFECTIVE GOVERNMENTS.  (FN4)  SINCE THAT TIME NEITHER THE FIFTEENTH
AMENDMENT NOR ANY OTHER AMENDMENT TO THE CONSTITUTION HAS GIVEN THE
SLIGHTEST INDICATION OF A PURPOSE TO GRANT CONGRESS THE POWER TO VETO
STATE LAWS EITHER BY ITSELF OR ITS AGENTS.  NOR DOES ANY PROVISION IN
THE CONSTITUTION ENDOW THE FEDERAL COURTS WITH POWER TO PARTICIPATE
WITH STATE LEGISLATIVE BODIES IN DETERMINING WHAT STATE POLICIES SHALL
BE ENACTED INTO LAW.  THE JUDICIAL POWER TO INVALIDATE A LAW IN A CASE
OR CONTROVERSY AFTER THE LAW HAS BECOME EFFECTIVE IS A LONG WAY FROM
THE POWER TO PREVENT A STATE FROM PASSING A LAW.  I CANNOT AGREE WITH
THE COURT THAT CONGRESS - DENIED A POWER IN ITSELF TO VETO A STATE LAW
CAN DELEGATE THIS SAME POWER TO THE ATTORNEY GENERAL OR THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA.  FOR THE EFFECT ON THE STATES IS
THE SAME IN BOTH CASES - THEY CANNOT PASS THEIR LAWS WITHOUT SENDING
THEIR AGENTS TO THE CITY OF WASHINGTON TO PLEAD TO FEDERAL OFFICIALS
FOR THEIR ADVANCE APPROVAL. 

IN THIS AND OTHER PRIOR ACTS CONGRESS HAS QUITE PROPERLY VESTED THE
ATTORNEY GENERAL WITH EXTREMELY BROAD POWER TO PROTECT VOTING RIGHTS OF
CITIZENS AGAINST DISCRIMINATION ON ACCOUNT OF RACE OR COLOR.  SECTION 5
VIEWED IN THIS CONTEXT IS OF VERY MINOR IMPORTANCE AND IN MY JUDGMENT
IS LIKELY TO SERVE MORE AS AN IRRITANT TO THE STATES THAN AS AN AID TO
THE ENFORCEMENT OF THE ACT.  I WOULD HOLD SEC 5 INVALID FOR THE REASONS
STATED ABOVE WITH FULL CONFIDENCE THAT THE ATTORNEY GENERAL HAS AMPLE
POWER TO GIVE VIGOROUS, EXPEDITIOUS AND EFFECTIVE PROTECTION TO THE
VOTING RIGHTS OF ALL CITIZENS.  (FN5) 

FN1  IF SEC 14(B) OF THE ACT BY STATING THAT NO COURT OTHER THAN THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SHALL ISSUE A JUDGMENT
UNDER SEC 5 IS AN ATTEMPT TO LIMIT THE CONSTITUTIONALLY CREATED
ORIGINAL JURISDICTION OF THIS COURT, THEN I THINK THAT SECTION IS ALSO
UNCONSTITUTIONAL. 

FN2  THE REQUIREMENT THAT STATES COME TO WASHINGTON TO HAVE THEIR
LAWS JUDGED IS REMINISCENT OF THE DEEPLY RESENTED PRACTICES USED BY THE
ENGLISH CROWN IN DEALING WITH THE AMERICAN COLONIES.  ONE OF THE ABUSES
COMPLAINED OF MOST BITTERLY WAS THE KING'S PRACTICE OF HOLDING
LEGISLATIVE AND JUDICIAL PROCEEDINGS IN INCONVENIENT AND DISTANT
PLACES.  THE SIGNERS OF THE DECLARATION OF INDEPENDENCE PROTESTED THAT
THE KING "HAS CALLED TOGETHER LEGISLATIVE BODIES AT PLACES UNUSUAL,
UNCOMFORTABLE, AND DISTANT FROM THE DEPOSITORY OF THEIR PUBLIC RECORDS,
FOR THE SOLE PURPOSE OF FATIGUING THEM INTO COMPLIANCE WITH HIS
MEASURES," AND THEY OBJECTED TO THE KING'S "TRANSPORTING US BEYOND SEAS
TO BE TRIED FOR PRETENDED OFFENCES."  THESE ABUSES WERE FRESH IN THE
MINDS OF THE FRAMERS OF OUR CONSTITUTION AND IN PART CAUSED THEM TO
INCLUDE IN ART. 3, SEC 2, THE PROVISION THAT CRIMINAL TRIALS "SHALL BE
HELD IN THE STATE WHERE THE SAID CRIMES SHALL HAVE BEEN COMMITTED." 
ALSO INCLUDED IN THE SIXTH AMENDMENT WAS THE REQUIREMENT THAT A
DEFENDANT IN A CRIMINAL PROSECUTION BE TRIED BY A "JURY OF THE STATE
AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH
DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW." 

FN3  SEE DEBATES IN THE FEDERAL CONVENTION OF 1787 AS REPORTED BY
JAMES MADISON IN DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION
OF THE AMERICAN STATES (1927), PP.  605, 789, 856. 

FN4  ONE SPEAKER EXPRESSING WHAT SEEMED TO BE THE PREVAILING OPINION
OF THE DELEGATES SAID OF THE PROPOSAL, "WILL ANY STATE EVER AGREE TO BE
BOUND HAND & FOOT IN THIS MANNER.  IT IS WORSE THAN MAKING MERE
CORPORATIONS OF THEM  ...  ."  ID., AT 604. 

FN5  SECTION 19 OF THE ACT PROVIDES AS FOLLOWS: 

"IF ANY PROVISION OF THIS ACT OR THE APPLICATION THEREOF TO ANY
PERSON OR CIRCUMSTANCES IS HELD INVALID, THE REMAINDER OF THE ACT AND
THE APPLICATION OF THE PROVISION TO OTHER PERSONS NOT SIMILARLY
SITUATED OR TO OTHER CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY." 
..END :










SUROWITZ V. HILTON HOTELS CORP. 383 U.S. 363 


NO. 161.  ARGUED JANUARY 20, 1966.  - DECIDED MARCH 7, 1966.  - 342 F.2D
596, REVERSED AND REMANDED. 


PETITIONER, A STOCKHOLDER IN HILTON HOTELS CORPORATION, BROUGHT THIS
ACTION ON BEHALF OF HERSELF AND OTHER STOCKHOLDERS CHARGING THE
CORPORATION'S OFFICERS AND DIRECTORS WITH FRAUD.  THE 60-ODD-PAGE
COMPLAINT WAS SIGNED BY PETITIONER'S COUNSEL IN COMPLIANCE WITH RULE 11
OF THE FEDERAL RULES OF CIVIL PROCEDURE.  PURSUANT TO RULE 23(B) THE
COMPLAINT WAS VERIFIED BY PETITIONER, WHO STATED THAT SOME OF THE
ALLEGATIONS WERE TRUE AND THAT "ON INFORMATION AND BELIEF" SHE THOUGHT
THE OTHERS WERE TRUE.  IN AN ORAL EXAMINATION BY RESPONDENTS' COUNSEL,
PETITIONER, AN IMMIGRANT WITH PRACTICALLY NO FORMAL EDUCATION AND
LIMITED KNOWLEDGE OF THE ENGLISH LANGUAGE, SHOWED THAT SHE DID NOT
UNDERSTAND THE COMPLAINT AND THAT IN SIGNING THE VERIFICATION SHE
RELIED ON HER SON-IN-LAW'S EXPLANATION OF THE FACTS.  RESPONDENTS THEN
MOVED TO DISMISS THE COMPLAINT ON THE GROUND THAT IT WAS A SHAM AND
THAT PETITIONER WAS NOT A PROPER PARTY PLAINTIFF.  PETITIONER'S COUNSEL
FILED TWO AFFIDAVITS, ONE BY HIMSELF AND THE OTHER BY PETITIONER'S SON
IN-LAW, AN INVESTMENT ADVISOR, DEMONSTRATING THAT EXTENSIVE
INVESTIGATION HAD PRECEDED THE FILING OF THE COMPLAINT.  DESPITE THE
AFFIDAVITS THE DISTRICT COURT DISMISSED THE SUIT WITH PREJUDICE ON THE
GROUND THAT PETITIONER'S AFFIDAVIT WAS FALSE AND A SHAM.  THE COURT OF
APPEALS AFFIRMED ALTHOUGH NOTING THAT "MANY OF THE MATERIAL ALLEGATIONS
OF THE COMPLAINT ARE OBVIOUSLY TRUE AND CANNOT BE REFUTED."  HELD: 

1. WHILE RULE 23(B) WAS ADOPTED AND HAS SERVED TO DISCOURAGE "STRIKE
SUITS" BASED ON WORTHLESS CLAIMS, IT WAS NOT WRITTEN TO BAR DERIVATIVE
SUITS WHICH HAVE PLAYED AN IMPORTANT PART IN PROTECTING STOCKHOLDERS
FROM MANAGEMENT FRAUDS.  P. 371. 

2.  THE RECORD HERE DISCLOSES THAT THIS IS NOT A STRIKE SUIT, BUT A
SUIT BY A SMALL STOCKHOLDER WHO, TO PROTECT HER INVESTMENT, ACTED IN
GOOD FAITH ON THE BASIS OF ADVICE BY HER COUNSEL AND FINANCIAL ADVISOR
SON-IN-LAW.  PP. 371-372. 

3.  THE PURPOSE OF THE FEDERAL RULES IS TO ADMINISTER JUSTICE THROUGH
FAIR TRIALS AND RULE 23 CANNOT BE CONSTRUED AS COMPELLING DISMISSAL OF
CASES LIKE THIS WHERE THE RECORD SHOWS GRAVE FRAUD CHARGES BASED ON
REASONABLE BELIEFS GROWING OUT OF CAREFUL INVESTIGATION.  P. 373. 

SUROWITZ V. HILTON HOTELS CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, DORA SUROWITZ, A STOCKHOLDER IN HILTON HOTELS
CORPORATION, BROUGHT THIS ACTION IN A UNITED STATES DISTRICT COURT ON
BEHALF OF HERSELF AND OTHER STOCKHOLDERS CHARGING THAT THE OFFICERS AND
DIRECTORS OF THE CORPORATION HAD DEFRAUDED IT OF SEVERAL MILLION
DOLLARS BY ILLEGAL DEVICES AND SCHEMES DESIGNED TO CHEAT THE
CORPORATION AND ENRICH THE INDIVIDUAL DEFENDANTS.  THE ACTS CHARGED, IF
TRUE, WOULD CONSTITUTE FRAUDS OF THE GROSSEST KIND AGAINST THE
CORPORATION, AND WOULD BE IN VIOLATION OF THE SECURITIES ACT OF 1933,
(FN1) THE SECURITIES EXCHANGE ACT OF 1934, (FN2) AND THE DELAWARE
GENERAL CORPORATION LAW.  (FN3)  SUMMARILY STATED, THE DETAILED
COMPLAINT, WHICH TAKES UP OVER 60 PRINTED PAGES, CHARGES FIRST THAT
DEFENDANTS CONCEIVED AND CARRIED OUT A DECEPTIVE PLAN UNDER WHICH THE
HILTON HOTELS CORPORATION THROUGH A FORMAL "OFFER" MAILED TO ALL THE
STOCKHOLDERS, PURCHASED FROM THEM SOME 300,000 SHARES OF ITS
OUTSTANDING COMMON STOCK, THAT THESE DEFENDANTS MANIPULATED THE STOCK'S
MARKET PRICE TO AN ARTIFICIALLY HIGH LEVEL AND THEN AT THIS INFLATED
PRICE SOLD SOME 100,000 SHARES OF THEIR OWN STOCK TO THE CORPORATION,
AND THAT THE EFFECT OF THIS OFFER AND PURCHASE WAS TO REDUCE THE
CORPORATION'S WORKING CAPITAL MORE THAN $8,000,000 AT A TIME WHEN ITS
FINANCIAL CONDITION WAS WEAK, AND THE FUNDS WERE BADLY NEEDED TO RUN
THE CORPORATION'S BUSINESS.  THE SECOND DECEPTIVE SCHEME CHARGED IN THE
COMPLAINT WAS THAT THE SAME DEFENDANTS, ALL OF WHOM WERE STOCKHOLDERS
OF THE HILTON CREDIT CORPORATION, CAUSED THE HILTON HOTELS CORPORATION
TO PURCHASE, ALSO AT AN ARTIFICIALLY HIGH PRICE, MORE THAN A MILLION
SHARES OF HILTON CREDIT CORPORATION STOCK, PAYING ABOUT $3,441,000 FOR
IT, OF WHICH OVER $2,000,000 WAS PERSONALLY RECEIVED BY THE
DEFENDANTS.  THE COMPLAINT WAS SIGNED BY COUNSEL FOR MRS. SUROWITZ IN
COMPLIANCE WITH RULE 11 OF THE FEDERAL RULES OF CIVIL PROCEDURE WHICH
PROVIDES THAT "THE SIGNATURE OF AN ATTORNEY CONSTITUTES A CERTIFICATE
BY HIM THAT HE HAS READ THE PLEADING; THAT TO THE BEST OF HIS
KNOWLEDGE, INFORMATION, AND BELIEF THERE IS GOOD GROUND TO SUPPORT IT;
AND THAT IT IS NOT INTERPOSED FOR DELAY."  ALSO PURSUANT TO RULE 23(B)
OF THE FEDERAL RULES, THE COMPLAINT WAS VERIFIED BY MRS. SUROWITZ, THE
PETITIONER, WHO STATED THAT SOME OF THE ALLEGATIONS IN THE COMPLAINT
WERE TRUE AND THAT SHE "ON INFORMATION AND BELIEF" THOUGHT THAT ALL THE
OTHER ALLEGATIONS WERE TRUE. 

SO FAR AS THE LANGUAGE OF THE COMPLAINT AND OF MRS. SUROWITZ'S
VERIFICATION WAS CONCERNED, BOTH WERE IN STRICT COMPLIANCE WITH THE
PROVISIONS OF RULE 23(B) WHICH STATES THAT A SHAREHOLDER'S COMPLAINT IN
A SECONDARY ACTION MUST CONTAIN CERTAIN AVERMENTS AND BE VERIFIED BY
THE PLAINTIFF.  (FN4)  NOTWITHSTANDING THE SUFFICIENCY OF THE COMPLAINT
AND VERIFICATION UNDER RULE 23(B), HOWEVER, THE COURT, WITHOUT
REQUIRING DEFENDANTS TO FILE AN ANSWER AND OVER PETITIONER'S PROTEST,
GRANTED DEFENDANTS' MOTION TO REQUIRE MRS. SUROWITZ TO SUBMIT HERSELF
TO AN ORAL EXAMINATION BY THE DEFENDANTS' COUNSEL.  IN THIS EXAMINATION
MRS. SUROWITZ SHOWED IN HER ANSWERS TO QUESTIONS THAT SHE DID NOT
UNDERSTAND THE COMPLAINT AT ALL, THAT SHE COULD NOT EXPLAIN THE
STATEMENTS MADE IN THE COMPLAINT, THAT SHE HAD A VERY SMALL DEGREE OF
KNOWLEDGE AS TO WHAT THE LAWSUIT WAS ABOUT, THAT SHE DID NOT KNOW ANY
OF THE DEFENDANTS BY NAME, THAT SHE DID NOT KNOW THE NATURE OF THEIR
ALLEGED MISCONDUCT, AND IN FACT THAT IN SIGNING THE VERIFICATION SHE
HAD MERELY RELIED ON WHAT HER SON-IN-LAW HAD EXPLAINED TO HER ABOUT THE
FACTS IN THE CASE.  ON THE BASIS OF THIS EXAMINATION, DEFENDANTS MOVED
TO DISMISS THE COMPLAINT, ALLEGING THAT "1.  IT IS A SHAM PLEADING, AND
2.  PLAINTIFF, DORA SUROWITZ, IS NOT A PROPER PARTY PLAINTIFF  ... ." 
IN RESPONSE, MRS. SUROWITZ'S LAWYER, IN AN EFFORT TO CURE WHATEVER
INFIRMITY THE COURT MIGHT POSSIBLY FIND IN MRS. SUROWITZ'S VERIFICATION
IN LIGHT OF HER DEPOSITION, FILED TWO AFFIDAVITS WHICH SHED MUCH
ADDITIONAL LIGHT ON AN EXTENSIVE INVESTIGATION WHICH HAD PRECEDED THE
FILING OF THE COMPLAINT.  DESPITE THESE AFFIDAVITS THE DISTRICT JUDGE
DISMISSED THE CASE HOLDING THAT MRS. SUROWITZ'S AFFIDAVIT WAS "FALSE,"
THAT BEING WHOLLY FALSE IT WAS A NULLITY, THAT BEING A NULLITY IT WAS
AS THOUGH NO AFFIDAVIT HAD BEEN MADE IN COMPLIANCE WITH RULE 23, THAT
BEING FALSE THE AFFIDAVIT WAS A "SHAM" AND RULE 23(B) REQUIRED THAT HE
DISMISS HER CASE, AND HE DID SO, "WITH PREJUDICE." 

THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S DISMISSAL, SAYING
IN PART: 

"WE CAN ONLY CONCLUDE, AS DID THE COURT BELOW, THAT PLAINTIFF'S
VERIFICATION OF THE COMPLAINT WAS FALSE BECAUSE SHE SWORE TO THE VERITY
OF ALLEGED FACTS OF WHICH SHE WAS WHOLLY IGNORANT."  342 F.2D, AT 606. 

THE COURT OF APPEALS REACHED ITS CONCLUSION THAT THE CASE MUST BE
DISMISSED UNDER RULE 23(B) AND RULE 41(B) DESPITE THE FACT THAT THE
CHARGES MADE AGAINST THE DEFENDANTS WERE VIEWED AS VERY SERIOUS AND
GRAVE CHARGES OF FRAUD AND THAT "MANY OF THE MATERIAL ALLEGATIONS OF
THE COMPLAINT ARE OBVIOUSLY TRUE AND CANNOT BE REFUTED."  342 F.2D, AT
607.  WE CANNOT AGREE WITH EITHER OF THE COURTS BELOW AND REVERSE THEIR
JUDGMENTS.  WE DO NOT FIND IT NECESSARY IN REVERSING, HOWEVER, TO
CONSIDER ALL THE NUMEROUS ARGUMENTS MADE BY RESPONDENTS BASED ON THE
ORIGIN, HISTORY AND UTILITY OF RULE 23, AND OF DERIVATIVE CAUSES OF
ACTION AND CLASS SUITS.  NO MATTER HOW MUCH WEIGHT WE GIVE TO THE
FUNCTION OF THE RULE AND OF CLASS ACTION PROCEEDINGS IN PROTECTING
CORPORATE MANAGEMENT AGAINST SO-CALLED "NUISANCE" OR "STRIKE SUITS," WE
HOLD THAT THE RULE CANNOT JUSTIFY DISMISSAL OF THIS CASE ON THE RECORD
SHOWN HERE. 

AT THE TIME THE DISTRICT COURT DISMISSED AND THE COURT OF APPEALS
APPROVED, THERE WERE PENDING BEFORE THOSE COURTS NOT MERELY THE
COMPLAINT, THE VERIFIED STATEMENTS BY COUNSEL AND BY MRS. SUROWITZ, AND
THE DEPOSITION OF MRS. SUROWITZ, BUT, AS NOTED ABOVE, TWO AFFIDAVITS,
ONE SIGNED BY MRS. SUROWITZ'S ATTORNEY IN THIS CASE, MR. WALTER J.
ROCKLER, AND THE OTHER SIGNED BY HER SON-IN-LAW, MR. IRVING BRILLIANT,
HAD BEEN SUBMITTED IN RESPONSE TO THE DEFENDANTS' MOTION THAT THE
COMPLAINT BE DISMISSED.  THESE AFFIDAVITS, AS WELL AS MRS. SUROWITZ'S
DEPOSITION, ARE A PART OF THE RECORD BEFORE US HERE AND WE SHALL NOW
STATE THE FACTS AS THEY ARE ILLUMINATED BY THESE AFFIDAVITS. 

MRS. SUROWITZ, THE PLAINTIFF AND PETITIONER HERE, IS A POLISH
IMMIGRANT WITH A VERY LIMITED ENGLISH VOCABULARY AND PRACTICALLY NO
FORMAL EDUCATION.  FOR MANY YEARS SHE HAS WORKED AS A SEAMSTRESS IN NEW
YORK WHERE BY REASON OF FRUGALITY SHE SAVED ENOUGH MONEY TO BUY SOME
THOUSANDS OF DOLLARS WORTH OF STOCKS.  SHE WAS OF COURSE NOT ABLE TO
SELECT STOCKS FOR HERSELF WITH ANY DEGREE OF ASSURANCE OF THEIR VALUE. 
UNDER THESE CIRCUMSTANCES SHE HAD TO RECEIVE ADVICE AND COUNSEL AND
QUITE NATURALLLY SHE WENT TO HER SON-IN-LAW, IRVING BRILLIANT.  MR.
BRILLIANT HAD GRADUATED FROM THE HARVARD LAW SCHOOL, POSSESSED A
MASTER'S DEGREE IN ECONOMICS FROM COLUMBIA UNIVERSITY, WAS A
PROFESSIONAL INVESTMENT ADVISOR, AND IN ADDITION TO HIS DEGREES AND HIS
FINANCIAL ACUMEN, HE WORE A PHI BETA KAPPA KEY.  IN 1957, SIX YEARS
BEFORE THIS LITIGATION BEGAN, HE BOUGHT SOME STOCK FOR HIS MOTHER-IN
LAW IN THE HILTON HOTELS CORPORATION, PAYING A LITTLE MORE THAN $2,000
OF HER OWN MONEY FOR IT.  HE EVIDENTLY HAD CONFIDENCE IN THAT
CORPORATION BECAUSE BY 1960 HE HAD PURCHASED FOR HIS WIFE, HIS DECEASED
MOTHER'S ESTATE, A TRUST FUND CREATED FOR HIS CHILDREN, AND MRS.
SUROWITZ SOME 2,350 SHARES OF THE CORPORATION'S COMMON STOCK, AT A COST
OF ABOUT $45,000 IN ADDITION TO ONE OF THE CORPORATION'S $10,000
DEBENTURES. 

ABOUT DECEMBER 1962, MRS. SUROWITZ RECEIVED THROUGH THE MAILS A
NOTICE FROM THE HILTON HOTELS CORPORATION ANNOUNCING ITS PLAN TO
PURCHASE A LARGE AMOUNT OF ITS OWN STOCK.  BECAUSE SHE WANTED IT
EXPLAINED TO HER, SHE TOOK THE NOTICE TO MR. BRILLIANT.  APPARENTLY
DISTURBED BY IT, HE STRAIGHTWAY SET OUT TO MAKE AN INVESTIGATION. 
SHORTLY THEREAFTER HE WENT TO CHICAGO, ILLINOIS, WHERE HILTON HOTELS
HAS ITS HOME OFFICE AND TALKED THE MATTER OVER WITH MR. ROCKLER.  MR.
BRILLIANT AND MR. ROCKLER HAD BEEN FRIENDS FOR MANY YEARS, APPARENTLY
EVER SINCE BOTH OF THEM SERVED AS A PART OF THE LEGAL STAFF
REPRESENTING THE UNITED STATES IN THE NUREMBERG TRIALS.   THE TWO
DECIDED TO INVESTIGATE FURTHER, AND FOR A NUMBER OF MONTHS BOTH PURSUED
WHATEVER AVENUES OF INFORMATION THAT WERE OPEN TO THEM.  BY AUGUST OF
1963 ON THE BASIS OF THEIR INVESTIGATION, BOTH OF THEM HAD REACHED THE
CONCLUSION THAT THE TIME HAD COME TO DO SOMETHING ABOUT THE MATTER.  IN
THE MEANTIME THE VALUE OF THE CORPORATION'S STOCK HAD DECLINED
STEADILY, AND IN AUGUST THE CORPORATION FAILED TO PAY ITS USUAL
DIVIDEND.  IN OCTOBER, WHILE A COMPLAINT WAS BEING PREPARED CHARGING
DEFENDANTS WITH FRAUD AND MULTIPLE VIOLATIONS OF THE FEDERAL SECURITIES
ACTS AND STATE LAW, MR. ROCKLER MET WITH DEFENDANTS' LAWYERS.  THIS
CONFERENCE, INSTEAD OF PRODUCING AN UNDERSTANDING, MERELY PROVIDED MR.
BRILLIANT AND MR. ROCKLER WITH INFORMATION, NOT PREVIOUSLY AVAILABLE TO
THEM, WHICH INCREASED THEIR GRAVE SUSPICIONS ABOUT THE CORPORATION'S
STOCK PURCHASE AND ITS MANAGEMENT.  FOR INSTANCE IT WAS LEARNED AT THIS
MEETING THAT AT THE TIME OF THE STOCK PURCHASE THE PRESIDENT AND
CHAIRMAN OF THE BOARD OF HILTON HOTELS CORPORATION HAD PURCHASED FOR AN
UNUSUALLY HIGH PRICE OVER 100,000 SHARES OF THE CORPORATION'S STOCK
FROM SEVERAL TRUSTS ESTABLISHED BY A VICE PRESIDENT AND DIRECTOR OF THE
CORPORATION.  FINALLY, IN DECEMBER, OR ALMOST EXACTLY ONE YEAR AFTER
THE CORPORATION HAD SUBMITTED ITS QUESTIONABLE OFFER TO PURCHASE STOCK
FROM ITS SHAREHOLDERS, THIS COMPLAINT WAS FILED CHARGING THE DEFENDANTS
WITH CREATING AND PARTICIPATING IN A FRAUDULENT SCHEME WHICH HAD TAKEN
MILLIONS OF DOLLARS OUT OF THE CORPORATION'S TREASURY AND TRANSFERRED
THE MONEY TO THE DEFENDANTS' POCKETS. 

SOON AFTER THESE INVESTIGATIONS BEGAN ROCKLER PREPARED A LETTER FOR
MRS. SUROWITZ TO SEND TO THE CORPORATION PROTESTING THE ALLEGED
FRAUDULENT SCHEME.  MR. BRILLIANT, HER SON-IN-LAW, TOOK THE
COMMUNICATION TO MRS. SUROWITZ, EXPLAINED IT TO HER, AND SHE SIGNED IT.
LATER, IN AUGUST 1963, WHEN THE CORPORATION DECLINED TO PAY ITS
DIVIDEND, MRS. SUROWITZ, WHO HAD PURCHASED THE STOCK FOR THE SPECIFIC
PURPOSE OF GAINING A SOURCE OF INCOME, WAS SUFFICIENTLY DISTURBED TO
SEEK MR. BRILLIANT'S COUNSEL.  HE EXPLAINED TO HER THAT HE AND MR.
ROCKLER WERE OF THE OPINION THAT THE CORPORATION'S MANAGEMENT HAD
WRONGFULLY DAMAGED THE CORPORATION, AND TOGETHER AT THAT TIME MRS.
SUROWITZ AND HER SON-IN-LAW DISCUSSED THE MATTER OF HER BRINGING THIS
SUIT.  WHEN, ON THE BASIS OF THIS CONVERSATION, MRS. SUROWITZ STATED
THAT SHE AGREED THAT SUIT BE FILED IN HER NAME, MR. ROCKLER PREPARED A
FORMAL COMPLAINT WHICH HE MAILED TO MR. BRILLIANT.  MR. BRILLIANT THEN,
ACCORDING TO BOTH HIS AFFIDAVIT AND MRS. SUROWITZ'S TESTIMONY, READ AND
EXPLAINED THE COMPLAINT TO HIS MOTHER-IN-LAW BEFORE SHE VERIFIED IT.
HER LIMITED EDUCATION AND HER SMALL KNOWLEDGE ABOUT ANY OF THE ENGLISH
LANGUAGE, EXCEPT THE MOST ORDINARILY USED WORDS, PROBABLY IS SUFFICIENT
GUARANTEE THAT THE COURTS BELOW WERE RIGHT IN FINDING THAT SHE DID NOT
UNDERSTAND ANY OF THE LEGAL RELATIONSHIPS OR COMPREHEND ANY OF THE
BUSINESS TRANSACTIONS DESCRIBED IN THE COMPLAINT.  SHE DID KNOW,
HOWEVER, THAT SHE HAD PUT OVER $2,000 OF HER HARD-EARNED MONEY INTO
HILTON HOTELS STOCK, THAT SHE WAS NOT GETTING HER DIVIDENDS, AND THAT
HER SON-IN-LAW WHO HAD LOOKED INTO THE MATTER THOUGHT THAT SOMETHING
WAS WRONG.  SHE ALSO KNEW THAT HER SON-IN-LAW WAS QUALIFIED TO HELP HER
AND SHE TRUSTED HIM.  IT IS DIFFICULT TO BELIEVE THAT ANYONE COULD BE
SHOCKED OR HARMED IN ANY WAY WHEN, IN THE LIGHT OF ALL THESE
CIRCUMSTANCES, MRS. SUROWITZ VERIFIED THE COMPLAINT, NOT ON THE BASIS
OF HER OWN KNOWLEDGE AND UNDERSTANDING, BUT IN THE FAITH THAT HER SON
IN-LAW HAD CORRECTLY ADVISED HER EITHER THAT THE STATEMENTS IN THE
COMPLAINT WERE TRUE OR TO THE BEST OF HIS KNOWLEDGE HE BELIEVED THEM TO
BE TRUE. 

WE ASSUME IT MAY BE POSSIBLE THAT THERE CAN BE CIRCUMSTANCES UNDER
WHICH A DISTRICT COURT COULD STOP ALL PROCEEDINGS IN A DERIVATIVE CAUSE
OF ACTION, RELIEVE THE DEFENDANTS FROM FILING AN ANSWER TO CHARGES OF
FRAUD, AND CONDUCT A PRE-TRIAL INVESTIGATION TO DETERMINE WHETHER THE
PLAINTIFF HAD FALSELY SWORN EITHER THAT THE FACTS ALLEGED IN THE
COMPLAINT WERE TRUE OR THAT HE HAD INFORMATION WHICH LED HIM TO BELIEVE
THEY WERE TRUE.  AND CONCEIVABLY SUCH A PRE-TRIAL INVESTIGATION MIGHT
POSSIBLY REVEAL FACTS SURROUNDING THE VERIFICATION OF THE COMPLAINT
WHICH COULD JUSTIFY DISMISSAL OF THE COMPLAINT WITH PREJUDICE. 
HOWEVER, HERE WE NEED NOT CONSIDER THE QUESTION OF WHETHER, IF EVER,
FEDERAL RULE 23(B) MIGHT CALL FOR SUCH SUMMARY ACTION.  CERTAINLY IT
CANNOT JUSTIFY THE COURT'S SUMMARY DISMISSAL IN THIS CASE.  RULE 23(B)
WAS NOT WRITTEN IN ORDER TO BAR DERIVATIVE SUITS.  UNQUESTIONABLY IT
WAS ORIGINALLY ADOPTED AND HAS SERVED SINCE IN PART AS A MEANS TO
DISCOURAGE "STRIKE SUITS" BY PEOPLE WHO MIGHT BE INTERESTED IN GETTING
QUICK DOLLARS BY MAKING CHARGES WITHOUT REGARD TO THEIR TRUTH SO AS TO
COERCE CORPORATE MANAGERS TO SETTLE WORTHLESS CLAIMS IN ORDER TO GET
RID OF THEM.  ON THE OTHER HAND, HOWEVER, DERIVATIVE SUITS HAVE PLAYED
A RATHER IMPORTANT ROLE IN PROTECTING SHAREHOLDERS OF CORPORATIONS FROM
THE DESIGNING SCHEMES AND WILES OF INSIDERS WHO ARE WILLING TO BETRAY
THEIR COMPANY'S INTERESTS IN ORDER TO ENRICH THEMSELVES.  AND IT IS NOT
EASY TO CONCEIVE OF ANYONE MORE IN NEED OF PROTECTION AGAINST SUCH
SCHEMES THAN LITTLE INVESTORS LIKE MRS. SUROWITZ.    WHEN THE RECORD OF
THIS CASE IS REVIEWED IN THE LIGHT OF THE PURPOSE OF RULE 23(B)'S
VERIFICATION REQUIREMENT, THERE EMERGES THE PLAIN, INESCAPABLE FACT
THAT THIS IS NOT A STRIKE SUIT OR ANYTHING AKIN TO IT.  MRS. SUROWITZ
WAS NOT INTERESTED IN ANYTHING BUT HER OWN INVESTMENT MADE WITH HER OWN
MONEY.  MOREOVER, THERE IS NOT ONE IOTA OF EVIDENCE THAT MR. BRILLIANT,
HER SON-IN-LAW AND COUNSELOR, SOUGHT TO DO THE CORPORATION ANY INJURY
IN THIS LITIGATION.  IN FACT HIS PURCHASES FOR THE BENEFIT OF HIS
FAMILY OF MORE THAN $50,000 OF SECURITIES IN THE CORPORATION, INCLUDING
A $10,000 DEBENTURE, ALL MADE YEARS BEFORE THIS SUIT WAS BROUGHT,
MANIFEST CONFIDENCE IN THE CORPORATION, NOT A DESIRE TO HARM IT IN ANY
WAY.  THE COURT OF APPEALS IN AFFIRMING THE DISTRICT COURT'S DISMISSAL,
HOWEVER, INDICATED THAT WHETHER MRS. SUROWITZ AND HER COUNSELORS ACTED
IN GOOD FAITH AND WHETHER THE CHARGES THEY MADE WERE TRUTHFUL WERE
IRRELEVANT ONCE MRS. SUROWITZ DEMONSTRATED IN HER ORAL TESTIMONY THAT
SHE KNEW NOTHING ABOUT THE CONTENT OF THE SUIT.  THAT COURT SAID: 

"THOSE AFFIDAVITS REVEAL THAT SUBSTANTIAL AND DILIGENT INVESTIGATION
BY BRILLIANT, ROCKLER AND OTHERS PRECEDED THE FILING OF THIS COMPLAINT
...  .  NEITHER AFFIDAVIT, HOWEVER, DOES ANYTHING, IF ANYTHING COULD BE
DONE, TO OFFSET PLAINTIFF'S POSITIVE DISAVOWAL OF ANY RELEVANT
KNOWLEDGE OR INFORMATION OTHER THAN THE FACT OF HER STOCK OWNERSHIP." 
342 F.2D, AT 607. 

IN FACT THE OPINION OF THE COURT OF APPEALS INDICATES IN SEVERAL
PLACES THAT A WOMAN LIKE MRS. SUROWITZ, WHO IS UNEDUCATED GENERALLY AND
ILLITERATE IN ECONOMIC MATTERS, COULD NEVER UNDER ANY CIRCUMSTANCES BE
A PLAINTIFF IN A DERIVATIVE SUIT BROUGHT IN THE FEDERAL COURTS TO
PROTECT HER STOCK INTERESTS.  (FN5) 

WE CANNOT CONSTRUE RULE 23 OR ANY OTHER ONE OF THE FEDERAL RULES AS
COMPELLING COURTS TO SUMMARILY DISMISS, WITHOUT ANY ANSWER OR ARGUMENT
AT ALL, CASES LIKE THIS WHERE GRAVE CHARGES OF FRAUD ARE SHOWN BY THE
RECORD TO BE BASED ON REASONABLE BELIEFS GROWING OUT OF CAREFUL
INVESTIGATION.  THE BASIC PURPOSE OF THE FEDERAL RULES IS TO ADMINISTER
JUSTICE THROUGH FAIR TRIALS NOT THROUGH SUMMARY DISMISSALS AS NECESSARY
AS THEY MAY BE ON OCCASION.  THESE RULES WERE DESIGNED IN LARGE PART TO
GET AWAY FROM SOME OF THE OLD PROCEDURAL BOOBY TRAPS WHICH COMMON-LAW
PLEADERS COULD SET TO PREVENT UNSOPHISTICATED LITIGANTS FROM EVER
HAVING THEIR DAY IN COURT.  IF RULES OF PROCEDURE WORK AS THEY SHOULD
IN AN HONEST AND FAIR JUDICIAL SYSTEM, THEY NOT ONLY PERMIT, BUT SHOULD
AS NEARLY AS POSSIBLE GUARANTEE THAT BONA FIDE COMPLAINTS BE CARRIED TO
AN ADJUDICATION ON THE MERITS.  RULE 23(B), LIKE THE OTHER CIVIL RULES,
WAS WRITTEN TO FURTHER, NOT DEFEAT THE ENDS OF JUSTICE.  THE SERIOUS
FRAUD CHARGED HERE, WHICH OF COURSE HAS NOT BEEN PROVEN, IS CLEARLY IN
THAT CLASS OF DECEITFUL CONDUCT WHICH THE FEDERAL SECURITIES LAWS WERE
LARGELY PASSED TO PROHIBIT AND PROTECT AGAINST.  THERE IS, MOREOVER,
NOT ONE WORD OR ONE LINE OF ACTUAL EVIDENCE IN THIS RECORD INDICATING
THAT THERE HAS BEEN ANY COLLUSIVE CONDUCT OR TRICKERY BY THOSE WHO
FILED THIS SUIT EXCEPT THROUGH INTIMATIONS AND INSINUATIONS WITHOUT ANY
SUPPORT FROM ANYTHING ANY WITNESS HAS SAID.  THE DISMISSAL OF THIS CASE
WAS ERROR.  IT HAS NOW BEEN PRACTICALLY THREE YEARS SINCE THE COMPLAINT
WAS FILED AND AS YET NONE OF THE DEFENDANTS HAVE EVEN BEEN COMPELLED TO
ADMIT OR DENY THE WRONGDOINGS CHARGED.  THEY SHOULD BE.  THE CAUSE IS
REVERSED AND REMANDED TO THE DISTRICT COURT FOR TRIAL ON THE MERITS. 
REVERSED AND REMANDED. 

FN1  48 STAT. 74, AS AMENDED, 15 U.S.C. SEC 77A ET SEQ. (1964 ED.). 

FN2  48 STAT. 881, AS AMENDED, 15 U.S.C. SEC 78A ET SEQ. (1964 ED.). 

FN3  DEL. CODE ANN. TIT. 8, SEC 101 ET SEQ. (1953 ED.). 

FN4  "(B)  SECONDARY ACTION BY SHAREHOLDERS.  IN AN ACTION BROUGHT TO
ENFORCE A SECONDARY RIGHT ON THE PART OF ONE OR MORE SHAREHOLDERS IN AN
ASSOCIATION, INCORPORATED OR UNINCORPORATED, BECAUSE THE ASSOCIATION
REFUSES TO ENFORCE RIGHTS WHICH MAY PROPERLY BE ASSERTED BY IT, THE
COMPLAINT SHALL BE VERIFIED BY OATH AND SHALL AVER (1) THAT THE
PLAINTIFF WAS A SHAREHOLDER AT THE TIME OF THE TRANSACTION OF WHICH HE
COMPLAINS OR THAT HIS SHARE THEREAFTER DEVOLVED ON HIM BY OPERATION OF
LAW AND (2) THAT THE ACTION IS NOT A COLLUSIVE ONE TO CONFER ON A COURT
OF THE UNITED STATES JURISDICTION OF ANY ACTION OF WHICH IT WOULD NOT
OTHERWISE HAVE JURISDICTION.  THE COMPLAINT SHALL ALSO SET FORTH WITH
PARTICULARITY THE EFFORTS OF THE PLAINTIFF TO SECURE FROM THE MANAGING
DIRECTORS OR TRUSTEES AND, IF NECESSARY, FROM THE SHAREHOLDERS SUCH
ACTION AS HE DESIRES, AND THE REASONS FOR HIS FAILURE TO OBTAIN SUCH
ACTION OR THE REASONS FOR NOT MAKING SUCH EFFORT." 

FN5  CONSIDER, FOR EXAMPLE, THESE THREE EXCERPTS TAKEN FROM SEPARATE
PARAGRAPHS IN THE COURT OF APPEALS' OPINION: 

"WE HAVE CONSIDERED ALL ARGUMENTS ADVANCED BY THE PLAINTIFF.  WE HAVE
CONSIDERED THE RECORD IN THE LIGHT OF PLAINTIFF'S LIMITED GRASP OF THE
ENGLISH LANGUAGE AND THE INTRICACIES OF CORPORATE FINANCE.   WE HAVE
CONSIDERED THE PECULIAR POSITION OF A PLAINTIFF IN A SUIT SUCH AS THIS
AS, PRINCIPALLY, THE INSTRUMENT THROUGH WHICH THE JUDICIAL MACHINERY IS
SET IN MOTION.  IT IS NOT UNREASONABLE TO STATE AS A MINIMUM
REQUIREMENT THAT THE PLAINTIFF HAVE GENERAL KNOWLEDGE OF THE ACTS OF
WHICH SHE COMPLAINS AND THE CONNECTION OF THE DEFENDANTS TO THOSE ACTS
WHICH SHE ALLEGES.  WE CONCLUDE THAT ANY LESSER REQUIREMENT WOULD MAKE
THE VERIFICATION PROVISION FARCICAL. 

  *         *         *         *         * 

"BUT IF THE VERIFICATION PROVISION OF THE RULE IS TO HAVE ANY REAL
MEANING, IT REQUIRES THAT A PLAINTIFF MUST HAVE KNOWLEDGE OF HIS OWN
POSITION AND RELATIONSHIP TO THE SUIT, OF THE OFFICIAL IDENTITY OF THE
PARTIES AGAINST WHOM THE SUIT IS BROUGHT AND GENERAL KNOWLEDGE OF THE
WRONGFUL ACTS WHICH HE ALLEGES AS A FOUNDATION FOR HIS COMPLAINT. 

     *         *         *         *     * 

"WE THINK THE COURT BELOW CORRECTLY HELD THAT A PLEADING GOVERNED BY
RULE 23(B) IS SHAM WHEN IT CLEARLY APPEARS THAT THE OSTENSIBLE
VERIFICATION IS A MERE FORMALITY WITHOUT KNOWLEDGE OR INFORMATIVE
COMPREHENSION IN THE PARTY PLAINTIFF WHOSE VERIFICATION GIVES IT THE
BREATH OF LIFE.  THAT BREATH IS NOT INSTILLED BY THE READING OF WORDS
TO THAT PLAINTIFF WHICH SHE OBVIOUSLY DID NOT UNDERSTAND."  342 F.2D,
AT 608, 606, AND 607-608. 

MR. JUSTICE FORTAS TOOK NO PART IN THE DECISION OF THIS CASE. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

RULE 23(B) DIRECTS THAT IN A DERIVATIVE SUIT "THE COMPLAINT SHALL BE
VERIFIED BY OATH" BUT NOTHING DICTATES THAT THE VERIFICATION BE THAT OF
THE PLAINTIFF SHAREHOLDER.  SEE BOSC V. 39 BROADWAY, INC., 80 F. SUPP.
825.  IN THE PRESENT CIRCUMSTANCES, IT SEEMS TO ME THE AFFIDAVIT OF
WALTER J. ROCKLER, COUNSEL FOR MRS. SUROWITZ, AMOUNTS TO AN ADEQUATE
VERIFICATION BY COUNSEL, WHICH I THINK IS PERMITTED BY A REASONABLE
INTERPRETATION OF THE RULE AT LEAST IN CASES SUCH AS THIS.  ON THIS
PREMISE, I AGREE WITH THE DECISION OF THE COURT. 
..END :



















PATE V. ROBINSON 383 U.S. 375 


NO. 382.  ARGUED JANUARY 26, 1966 - DECIDED MARCH 7, 1966 - 345 F.2D
691, AFFIRMED IN PART AND REMANDED. 


RESPONDENT WAS CONVICTED IN 1959 OF MURDERING HIS COMMON-LAW WIFE AND
GIVEN A LIFE SENTENCE.  IT WAS CONCEDED AT TRIAL THAT HE HAD SHOT AND
KILLED HER BUT COUNSEL CLAIMED THAT RESPONDENT WAS INSANE AT THE TIME
OF THE INCIDENT AND ALSO NOT COMPETENT TO STAND TRIAL.  IT WAS
UNCONTRADICTED THAT RESPONDENT HAD A LONG HISTORY OF DISTURBED
BEHAVIOR, HAD BEEN CONFINED AS A PSYCHOPATHIC PATIENT, AND HAD
COMMITTED ACTS OF VIOLENCE INCLUDING THE KILLING OF HIS INFANT SON AND
ATTEMPTED SUICIDE.  FOUR DEFENSE WITNESSES TESTIFIED THAT RESPONDENT
WAS INSANE.  THE TRIAL COURT DECLINED REBUTTAL MEDICAL TESTIMONY AS TO
RESPONDENT'S SANITY, DEEMING SUFFICIENT A STIPULATION THAT A DOCTOR
WOULD TESTIFY THAT WHEN RESPONDENT WAS EXAMINED A FEW MONTHS BEFORE
TRIAL HE KNEW THE NATURE OF THE CHARGES AND COULD COOPERATE WITH HIS
COUNSEL.  THE TRIAL COURT'S REJECTION OF CONTENTIONS AS TO RESPONDENT'S
SANITY WAS CHALLENGED ON APPEAL AS A DEPRIVATION OF DUE PROCESS OF LAW
UNDER THE FOURTEENTH AMENDMENT.  THE STATE SUPREME COURT AFFIRMED THE
CONVICTION ON THE GROUNDS THAT NO HEARING ON MENTAL CAPACITY TO STAND
TRIAL HAD BEEN REQUESTED AND THAT THE EVIDENCE WAS INSUFFICIENT TO
REQUIRE THE TRIAL COURT TO CONDUCT A SANITY HEARING SUA SPONTE OR TO
RAISE A "REASONABLE DOUBT" AS TO RESPONDENT'S SANITY AT THE TIME OF THE
HOMICIDE.  THIS COURT DENIED CERTIORARI.  THE DISTRICT COURT DENIED
RESPONDENT'S SUBSEQUENTLY FILED PETITION FOR WRIT OF HABEAS CORPUS. 
THE COURT OF APPEALS REVERSED, HOLDING THAT THE UNDULY HURRIED TRIAL
DID NOT PROVIDE A FAIR OPPORTUNITY FOR DEVELOPMENT OF FACTS ON THE
INSANITY ISSUES AND REMANDED THE CASE TO THE DISTRICT COURT FOR A
LIMITED HEARING AS TO THE SANITY OF RESPONDENT AT THE TIME OF THE
HOMICIDE AND AS TO WHETHER HE WAS CONSTITUTIONALLY ENTITLED TO A
HEARING UPON HIS COMPETENCE TO STAND TRIAL.  HELD: 

1.  THE EVIDENCE RAISED A SUFFICIENT DOUBT AS TO RESPONDENT'S
COMPETENCE TO STAND TRIAL SO THAT RESPONDENT WAS DEPRIVED OF DUE
PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT BY THE TRIAL COURT'S
FAILURE TO AFFORD HIM A HEARING ON THAT ISSUE.  PP. 378-386. 

(A)  THE CONVICTION OF A LEGALLY INCOMPETENT DEFENDANT VIOLATES DUE
PROCESS.  BISHOP V. UNITED STATES, 350 U.S. 961.  P. 378. 

(B)  THE RECORD SHOWS THAT RESPONDENT DID NOT WAIVE THE DEFENSE OF
INCOMPETENCE TO STAND TRIAL.  P. 384. 

(C)  IN VIEW OF EVIDENCE RAISING A DOUBT ON THE COMPETENCE ISSUE, THE
COURT WAS REQUIRED TO IMPANEL A JURY AND CONDUCT A SANITY HEARING AND
COULD NOT RELY IN LIEU THEREOF ON RESPONDENT'S DEMEANOR AT TRIAL OR ON
THE STIPULATED MEDICAL TESTIMONY.  PP. 385-386. 

2.  IN VIEW OF THE DIFFICULTY OF RETROSPECTIVELY DETERMINING THE
ISSUE OF AN ACCUSED'S COMPETENCE TO STAND TRIAL (PARTICULARLY WHERE, AS
HERE, THE TIME LAPSE IS OVER SIX YEARS), A HEARING LIMITED TO THAT
ISSUE WILL NOT SUFFICE; RESPONDENT MUST THEREFORE BE DISCHARGED UNLESS
THE STATE GIVES HIM A NEW TRIAL WITHIN A REASONABLE TIME.  P. 387. 

PATE, WARDEN V. ROBINSON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN 1959 RESPONDENT ROBINSON WAS CONVICTED OF THE MURDER OF HIS COMMOM
LAW WIFE.  FLOSSIE MAY WARD, AND WAS SENTENCED TO IMPRISONMENT FOR
LIFE.  BEING AN INDIGENT HE WAS DEFENDED BY COURT-APPOINTED COUNSEL. 
IT WAS CONCEDED AT TRIAL THAT ROBINSON SHOT AND KILLED FLOSSIE MAY, BUT
HIS COUNSEL CLAIMED THAT HE WAS INSANE AT THE TIME OF THE SHOOTING AND
RAISED THE ISSUE OF HIS INCOMPETENCE TO STAND TRIAL.  ON WRIT OF ERROR
TO THE SUPREME COURT OF ILLINOIS IT WAS ASSERTED THAT THE TRIAL COURT'S
REJECTION OF THESE CONTENTIONS DEPRIVED ROBINSON OF DUE PROCESS OF LAW
UNDER THE FOURTEENTH AMENDMENT.  HIS CONVICTION WAS AFFIRMED, THE COURT
FINDING THAT NO HEARING ON MENTAL CAPACITY TO STAND TRIAL HAD BEEN
REQUESTED, THAT THE EVIDENCE FAILED TO RAISE SUFFICIENT DOUBT AS TO HIS
COMPETENCE TO REQUIRE THE TRIAL COURT TO CONDUCT A HEARING ON ITS OWN
MOTION, AND FURTHER THAT THE EVIDENCE DID NOT RAISE A "REASONABLE
DOUBT" AS TO HIS SANITY AT THE TIME OF THE OFFENSE.  22 ILL. 2D 162,
174 N.E.2D 820 (1961).  WE DENIED CERTIORARI.  368 U.S. 995 (1962). 
THEREUPON, ROBINSON FILED THIS PETITION FOR HABEAS CORPUS, WHICH WAS
DENIED WITHOUT A HEARING BY THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS.  THE COURT OF APPEALS REVERSED, 345 F.2D
691 (1965), ON THE GROUND THAT ROBINSON WAS CONVICTED IN AN UNDULY
HURRIED TRIAL WITHOUT A FAIR OPPORTUNITY TO OBTAIN EXPERT PSYCHIATRIC
TESTIMONY, AND WITHOUT SUFFICIENT DEVELOPMENT OF THE FACTS ON THE
ISSUES OF ROBINSON'S INSANITY WHEN HE COMMITTED THE HOMICIDE AND HIS
PRESENT IMCOMPETENCE.  IT REMANDED THE CASE TO THE DISTRICT COURT WITH
DIRECTIONS TO APPOINT COUNSEL FOR ROBINSON; TO HOLD A HEARING AS TO HIS
SANITY WHEN HE COMMITTED THE ALLEGED OFFENSE; AND, IF IT FOUND HIM TO
HAVE BEEN INSANE AT THAT TIME, TO ORDER HIS RELEASE, SUBJECT TO AN
EXAMINATION INTO HIS PRESENT MENTAL CONDITION.  THE COURT OF APPEALS
DIRECTED THAT THE DISTRICT COURT SHOULD ALSO DETERMINE UPON THE HEARING
WHETHER ROBINSON WAS DENIED DUE PROCESS BY THE STATE COURT'S FAILURE TO
CONDUCT A HEARING UPON HIS COMPETENCE TO STAND TRIAL; AND, IF IT WERE
FOUND HIS RIGHTS HAD BEEN VIOLATED IN THIS RESPECT, THAT ROBINSON
"SHOULD BE ORDERED RELEASED, BUT SUCH RELEASE MAY BE DELAYED FOR A
REASONABLE TIME  ...  TO PERMIT THE STATE OF ILLINOIS TO GRANT ROBINSON
A NEW TRIAL,"  345 F.2D, AT 698.  WE GRANTED CERTIORARI TO RESOLVE THE
DIFFICULT QUESTIONS OF STATE-FEDERAL RELATIONS POSED BY THESE RULINGS. 
382 U.S. 890 (1965).  WE HAVE CONCLUDED THAT ROBINSON WAS
CONSTITUTIONALLY ENTITLED TO A HEARING ON THE ISSUE OF HIS COMPETENCE
TO STAND TRIAL.  SINCE WE DO NOT THINK THERE COULD BE A MEANINGFUL
HEARING ON THAT ISSUE AT THIS LATE DATE, WE DIRECT THAT THE DISTRICT
COURT, AFTER AFFORDING THE STATE ANOTHER OPPORTUNITY TO PUT ROBINSON TO
TRIAL ON ITS CHARGES WITHIN A REASONABLE TIME, ORDER HIM DISCHARGED. 
ACCORDINGLY, WE AFFIRM THE DECISION OF THE COURT OF APPEALS IN THIS
RESPECT, EXCEPT INSOFAR AS IT CONTEMPLATED A HEARING IN THE DISTRICT
COURT ON ROBINSON'S COMPETENCE.  OUR DISPOSITION MAKES IT UNNECESSARY
TO REACH THE OTHER REASONS GIVEN BY THE COURT OF APPEALS FOR REVERSAL. 
(FN1)

      I 

THE STATE CONCEDES THAT THE CONVICTION OF AN ACCUSED PERSON WHILE HE
IS LEGALLY INCOMPETENT VIOLATES DUE PROCESS, BISHOP V. UNITED STATES,
350 U.S. 961 (1956), AND THAT STATE PROCEDURES MUST BE ADEQUATE TO
PROTECT THIS RIGHT.  IT INSISTS, HOWEVER, THAT ROBINSON INTELLIGENTLY
WAIVED THIS ISSUE BY HIS FAILURE TO REQUEST A HEARING ON HIS COMPETENCE
AT THE TRIAL; AND, FURTHER, THAT ON THE BASIS OF THE EVIDENCE BEFORE
THE TRIAL JUDGE NO DUTY RESTED UPON HIM TO ORDER A HEARING SUA SPONTE. 
A DETERMINATION OF THESE CLAIMS NECESSITATES A DETAILED DISCUSSION OF
THE CONDUCT OF THE TRIAL AND THE EVIDENCE TOUCHING UPON THE QUESTION OF
ROBINSON'S COMPETENCE AT THAT TIME. 

THE UNCONTRADICTED TESTIMONY OF FOUR WITNESSES (FN2) CALLED BY THE
DEFENSE REVEALED THAT ROBINSON HAD A LONG HISTORY OF DISTURBED
BEHAVIOR.  HIS MOTHER TESTIFIED THAT WHEN HE WAS BETWEEN SEVEN AND
EIGHT YEARS OF AGE A BRICK DROPPED FROM A THIRD FLOOR HIT ROBINSON ON
THE HEAD.  "HE BLACKED OUT AND THE BLOOD RUN FROM HIS HEAD LIKE A
FAUCET."  THEREAFTER "HE ACTED A LITTLE PECULIAR."  THE BLOW KNOCKED
HIM "COCKEYED" AND HIS MOTHER TOOK HIM TO A SPECIALIST "TO CORRECT THE
CROSSNESS OF HIS EYES."  HE ALSO SUFFERED HEADACHES DURING HIS
CHILDHOOD, APPARENTLY STEMMING FROM THE SAME EVENT.  HIS CONDUCT BECAME
NOTICEABLY ERRATIC ABOUT 1946 OR 1947 WHEN HE WAS VISITING HIS MOTHER
ON A FURLOUGH FROM THE ARMY.  WHILE ROBINSON WAS SITTING AND TALKING
WITH A GUEST, "HE JUMPED UP AND RUN TO A BAR AND KICKED A HOLE IN THE
BAR AND HE RUN UP IN THE FRONT."  HIS MOTHER ASKED "WHAT ON EARTH WAS
WRONG WITH HIM AND HE JUST STARED AT HER, AND PACED THE FLOOR WITH BOTH
HANDS IN HIS POCKETS."  ON OTHER OCCASIONS HE APPEARED IN A DAZE, WITH
A "GLARE IN HIS EYES," AND WOULD NOT SPEAK OR RESPOND TO QUESTIONS.  IN
1951, A FEW YEARS AFTER HIS DISCHARGE FROM THE SERVICE, HE "LOST HIS
MIND AND WAS PACING THE FLOOR SAYING SOMETHING WAS AFTER HIM."  THIS
INCIDENT OCCURRED AT THE HOME OF HIS AUNT, HELEN CALHOUN.  DISTURBED BY
ROBINSON'S CONDUCT, MRS. CALHOUN CALLED HIS MOTHER ABOUT SIX O'CLOCK IN
THE MORNING, AND SHE "WENT TO SEE ABOUT HIM."  ROBINSON TRIED TO
PREVENT MRS. CALHOUN FROM OPENING THE DOOR, SAYING "THAT SOMEONE WAS
GOING TO SHOOT HIM OR SOMEONE WAS GOING TO COME IN AFTER HIM."  HIS
MOTHER TESTIFIED THAT, AFTER GAINING ADMITTANCE, "I WENT TO HIM AND
HUGGED HIM TO ASK HIM WHAT WAS WRONG AND HE WENT TO PUSHING ME BACK,
TELLING ME TO GET BACK, SOMEBODY WAS GOING TO SHOOT HIM, SOMEBODY WAS
GOING TO SHOOT HIM."  UPON BEING QUESTIONED AS TO ROBINSON'S FACIAL
EXPRESSION AT THE TIME, THE MOTHER STATED THAT HE "HAD THAT STAREY LOOK
AND SEEMED TO BE JUST A LITTLE FOAMY AT THE MOUTH."  A POLICEMAN WAS
FINALLY CALLED.  HE PUT ROBINSON, HIS MOTHER AND AUNT IN A CAB WHICH
DROVE THEM TO HINES HOSPITAL.  ON THE WAY ROBINSON TRIED TO JUMP FROM
THE CAB, AND UPON ARRIVAL AT THE HOSPITAL HE WAS SO VIOLENT THAT HE HAD
TO BE STRAPPED IN A SHEEL CHAIR.  HE THEN WAS TAKEN IN AN AMBULANCE TO
THE COUNTY PSYCHOPATHIC HOSPITAL, FROM WHICH HE WAS TRANSFERRED TO THE
KANKAKEE STATE HOSPITAL.  THE MEDICAL RECORDS THERE RECITED: 

"THE REASON FOR ADMISSION:  THE PATIENT WAS ADMITTED TO THIS HOSPITAL
ON THE 5TH DAY OF JUNE, 1952, FROM THE HINES HOSPITAL.  PATIENT BEGAN
PRESENTING SYMPTOMS OF MENTAL ILLNESS ABOUT A YEAR AGO AT WHICH TIME HE
CAME TO HIS MOTHER'S HOUSE.  HE REQUESTED MONEY AND WHEN IT WAS
REFUSED, HE SUDDENLY KICKED A HOLE IN HER BAR. 

     *         *         *      *         * 

"WAS DRINKING AND WENT TO THE PSYCHOPATHIC HOSPITAL.  HE IMAGINED HE
HEARD VOICES, VOICES OF MEN AND WOMEN AND HE ALSO SAW THINGS.  HE SAW A
LITTLE BIT OF EVERYTHING.  HE SAW ANIMALS, SNAKES AND ELEPHANTS AND
THIS LASTED FOR ABOUT TWO DAYS.  HE WENT TO HINES.  THEY SENT HIM TO
THE PSYCHOPATHIC HOSPITAL.  THE VOICES THREATENED HIM.  HE IMAGINED
SOMEONE WAS OUTSIDE WITH A PISTOL AIMED AT HIM.  HE WAS VERY, VERY
SCARED AND HE TRIED TO CALL THE POLICE AND HIS AUNT THEN CALLED THE
POLICE.  HE THOUGHT HE WAS GOING TO BE HARMED.  AND HE SAYS THIS ALL
SEEMS VERY FOOLISH TO HIM NOW.  PATIENT IS FRIENDLY AND TRIES TO
COOPERATE. 

     *         *         *         *      * 

"HE WENT THROUGH AN ACUTE TOXIC EPISODE FROM WHICH HE HAS SOME
INSIGHT.  HE HAD BEEN DRINKING HEAVILY.  I AM WONDERING POSSIBLY HE
ISN'T SCHIZOPHRENIC.  I THINK HE HAS RECOVERED FROM THIS CONDITION.  I
HAVE SEEN THE WIFE AND SHE IS IN A PATHETIC STATE.  I HAVE NO OBJECTION
TO GIVING HIM A TRY." 

AFTER HIS RELEASE FROM THE STATE HOSPITAL ROBINSON'S IRRATIONAL
EPISODES BECAME MORE SERIOUS.  HIS GRANDFATHER TESTIFIED THAT WHILE
ROBINSON WAS WORKING WITH HIM AS A PAINTER'S ASSISTANT, "ALL AT ONCE,
HE WOULD COME DOWN FROM THE LADDER AND WALK ON OUT AND NEVER SAY WHERE
HE IS GOING AND WHATNOT AND HE WOULD BE OUT TWO OR THREE HOURS, AND AT
TIMES HE WOULD BE IN A DAZE AND WHEN HE COMES OUT, HE COMES BACK JUST
AS FRESH.  HE JUST SAYS HE DIDN'T DO ANYTHING.  I NOTICED THAT HE
WASN'T AT ALL HIMSELF."  THE GRANDFATHER ALSO RELATED THAT ONE NIGHT
WHEN ROBINSON WAS STAYING AT HIS HOUSE ROBINSON AND HIS WIFE HAD A
"RUCKUS," WHICH CAUSED HIS WIFE TO FLEE TO THE GRANDFATHER'S BEDROOM. 
ROBINSON FIRST TRIED TO KICK DOWN THE DOOR.  HE THEN GRABBED ALL OF HIS
WIFE'S CLOTHES FROM THEIR ROOM AND THREW THEM OUT IN THE YARD,
INTENDING TO SET THEM ON FIRE.  ROBINSON GOT SO UNRULY THAT THE
GRANDFATHER CALLED THE POLICE TO LOCK HIM UP. 

IN 1953 ROBINSON, THEN SEPARATED FROM HIS WIFE, BROUGHT THEIR 18
MONTH-OLD SON TO MRS. CALHOUN'S HOME AND ASKED PERMISSION TO STAY THERE
FOR A COUPLE OF DAYS.  SHE OBSERVED THAT HE WAS HIGHLY NERVOUS,
PRANCING ABOUT AND STARING WILDLY.  WHILE SHE WAS AT WORK THE NEXT DAY
ROBINSON SHOT AND KILLED HIS SON AND ATTEMPTED SUICIDE BY SHOOTING
HIMSELF IN THE HEAD.  IT APPEARED THAT AFTER ROBINSON SHOT HIS SON, HE
WENT TO A NEARBY PARK AND TRIED TO TAKE HIS LIFE AGAIN BY JUMPING INTO
A LAGOON.  BY HIS MOTHER'S DESCRIPTION, HE "WAS WANDERING AROUND" THE
PARK, AND WALKED UP TO A POLICEMAN AND "ASKED HIM FOR A CIGARETTE."  IT
WAS STIPULATED THAT HE WENT TO THE SOUTH PARK STATION ON MARCH 10,
1953, AND SAID THAT HE WANTED TO CONFESS TO A CRIME.  WHEN HE REMOVED
HIS HAT THE POLICE SAW THAT HE HAD SHOT HIMSELF IN THE HEAD.  THEY TOOK
HIM TO THE HOSPITAL FOR TREATMENT OF HIS WOUND. 

ROBINSON SERVED ALMOST FOUR YEARS IN PRISON FOR KILLING HIS SON,
BEING RELEASED IN SEPTEMBER 1956.   A FEW MONTHS THEREAFTER HE BEGAN TO
LIVE WITH FLOSSIE MAY WARD AT HER HOME.  IN THE SUMMER OF 1957 OR 1958
ROBINSON "JUMPED ON" HIS MOTHER'S BROTHER-IN-LAW AND "BEAT HIM UP
TERRIBLE."  SHE WENT TO THE POLICE STATION AND SWORE OUT A WARRANT FOR
HIS ARREST.  SHE DESCRIBED HIS ABNORMALITIES AND TOLD THE OFFICERS THAT
ROBINSON "SEEMED TO HAVE A DISTURBED MIND."  SHE ASKED THE POLICE "TO
PICK HIM UP SO I CAN HAVE HIM PUT AWAY."  LATER SHE WENT BACK TO SEE
WHY THEY HAD NOT TAKEN HIM INTO CUSTODY BECAUSE OF "THE WAY HE WAS
FIGHTING AROUND IN THE STREETS, PEOPLE WERE BEATING HIM UP."  SHE MADE
ANOTHER COMPLAINT A MONTH OR SO BEFORE ROBINSON KILLED FLOSSIE MAY
WARD.  HOWEVER, NO WARRANT WAS EVER SERVED ON HIM. 

THE KILLING OCCURRED ABOUT 10:30 P.M. AT A SMALL BARBECUE HOUSE WHERE
FLOSSIE MAY WORKED.  AT THAT TIME THERE WERE 10 CUSTOMERS IN THE
RESTAURANT, SIX OF THEM SITTING AT THE COUNTER.  IT APPEARS FROM THE
RECORD THAT ROBINSON ENTERED THE RESTAURANT WITH A GUN IN HIS HAND.  AS
HE APPROACHED THE COUNTER, FLOSSIE MAY SAID, "DON'T START NOTHING
TONIGHT."  AFTER STARING AT HER FOR ABOUT A MINUTE, HE WALKED TO THE
REAR OF THE ROOM AND, WITH THE USE OF HIS HAND, LEAPED OVER THE
COUNTER.  HE THEN RUSHED BACK TOWARD THE FRONT OF THE RESTAURANT, PAST
TWO OTHER EMPLOYEES WORKING BEHIND THE COUNTER, AND FIRED ONCE OR TWICE
AT FLOSSIE MAY.  SHE JUMPED OVER THE COUNTER AND RAN OUT THE FRONT DOOR
WITH ROBINSON IN PURSUIT.  SHE WAS FOUND DEAD ON THE SIDEWALK.  (FN3)
ROBINSON NEVER SPOKE A WORD DURING THE THREE-TO-FOUR-MINUTE EPISODE. 

SUBSEQUENTLY ROBINSON WENT TO THE APARTMENT OF A FRIEND, MR. MOORE,
WHO SUMMONED THE POLICE.  WHEN THREE OFFICERS, TWO IN UNIFORM, ARRIVED,
ROBINSON WAS STANDING IN THE HALL APPROXIMATELY HALF WAY BETWEEN THE
ELEVATOR AND THE APARTMENT.  UNAWARE OF HIS IDENTITY, THE OFFICERS
WALKED PAST HIM AND WENT TO THE DOOR OF THE APARTMENT.  MRS. MOORE
ANSWERED THE DOOR AND TOLD THEM THAT ROBINSON HAD LEFT A SHORT TIME
EARLIER.  AS THE OFFICERS TURNED AROUND THEY SAW ROBINSON STILL
STANDING WHERE THEY HAD FIRST OBSERVED HIM.  ROBINSON MADE NO ATTEMPT
TO AVOID BEING ARRESTED.  WHEN ASKED HIS ADDRESS HE GAVE SEVERAL
EVASIVE ANSWERS.  HE ALSO DENIED KNOWING ANYTHING ABOUT THE KILLING. 
(FN4) 

FOUR DEFENSE WITNESSES EXPRESSED THE OPINION THAT ROBINSON WAS
INSANE.  (FN5)  IN REBUTTAL THE STATE INTRODUCED ONLY A STIPULATION
THAT DR. WILLIAM H. HAINES, DIRECTOR OF THE BEHAVIOR CLINIC OF THE
CRIMINAL COURT OF COOK COUNTY WOULD, IF PRESENT, TESTIFY THAT IN HIS
OPINION ROBINSON KNEW THE NATURE OF THE CHARGES AGINST HIM AND WAS ABLE
TO COOPERATE WITH COUNSEL WHEN HE EXAMINED HIM TWO OR THREE MONTHS
BEFORE TRIAL.  HOWEVER, SINCE THE STIPULATION DID NOT INCLUDE A FINDING
OF SANITY THE PROSECUTOR ADVISED THE COURT THAT "WE SHOULD HAVE DR.
HAINES' TESTIMONY AS TO HIS OPINION WHETHER THIS MAN IS SANE OR
INSANE.  IT IS POSSIBLE THAT THE MAN MIGHT BE INSANE AND KNOW THE
NATURE OF THE CHARGE OR BE ABLE TO COOPERATE WITH HIS COUNSEL.  I THINK
IT SHOULD BE IN EVIDENCE, YOUR HONOR, THAT DR. HAINES' OPINION IS THAT
THIS DEFENDANT WAS SANE WHEN HE WAS EXAMINED."  HOWEVER, THE COURT TOLD
THE PROSECUTOR, "YOU HAVE ENOUGH IN THE RECORD NOW.  I DON'T THINK YOU
NEED DR. HAINES."  IN HIS SUMMATION DEFENSE COUNSEL EMPHASIZED "OUR
DEFENSE IS CLEAR  ...  .  IT IS AS TO THE SANITY OF THE DEFENDANT AT
THE TIME OF THE CRIME AND ALSO AS TO THE PRESENT TIME."  THE COURT,
AFTER CLOSING ARGUMENT BY THE DEFENSE, FOUND ROBINSON GUILTY AND
SENTENCED HIM TO PRISON FOR HIS NATURAL LIFE. 
                 II. 

THE STATE INSISTS THAT ROBINSON DELIBERATELY WAIVED THE DEFENSE OF
HIS COMPETENCE TO STAND TRIAL BY FAILING TO DEMAND A SANITY HEARING AS
PROVIDED BY ILLINOIS LAW.  BUT IT IS CONTRADICTORY TO ARGUE THAT A
DEFENDANT MAY BE INCOMPETENT, AND YET KNOWINGLY OR INTELLIGENTLY
"WAIVE" HIS RIGHT TO HAVE THE COURT DETERMINE HIS CAPACITY TO STAND
TRIAL.  SEE TAYLOR V. UNITED STATES, 282 F.2D 16, 23 (C.A. 8TH CIR.
1960).  IN ANY EVENT, THE RECORD SHOWS THAT COUNSEL THROUGHOUT THE
PROCEEDINGS INSISTED THAT ROBINSON'S PRESENT SANITY WAS VERY MUCH IN
ISSUE.  HE MADE A POINT TO ELICIT MRS. ROBINSON'S OPINION OF ROBINSON'S
"PRESENT SANITY."  AND IN HIS ARGUMENT TO THE JUDGE, HE ASSERTED THAT
ROBINSON "SHOULD BE FOUND NOT GUILTY AND PRESENTLY INSANE ON THE BASIS
OF THE TESTIMONY THAT WE HAVE HEARD."  MOREOVER, THE PROSECUTOR HIMSELF
SUGGESTED AT TRIAL THAT "WE SHOULD HAVE DR. HAINES' TESTIMONY AS TO HIS
OPINION WHETHER THIS MAN IS SANE OR INSANE."  WITH THIS RECORD WE
CANNOT SAY THAT ROBINSON WAIVED THE DEFENSE OF INCOMPETENCE TO STAND
TRIAL.  (FN6) 

WE BELIEVE THAT THE EVIDENCE INTRODUCED ON ROBINSON'S BEHALF ENTITLED
HIM TO A HEARING ON THIS ISSUE.  THE COURT'S FAILURE TO MAKE SUCH
INQUIRY THUS DEPRIVED ROBINSON OF HIS CONSTITUTIONAL RIGHT TO A FAIR
TRIAL.  (FN7)  SEE THOMAS V. CUNNINGHAM, 313 F.2D 934.  (C.A. 4TH CIR.
1963).  ILLINOIS JEALOUSLY GUARDS THIS RIGHT.  WHERE THE EVIDENCE
RAISES A "BONA FIDE DOUBT" AS TO A DEFENDANT'S COMPETENCE TO STAND
TRIAL, THE JUDGE ON HIS OWN MOTION MUST IMPANEL A JURY AND CONDUCT A
SANITY HEARING PURSUANT TO ILL. REV. STAT., C. 38, SEC 104-2 (1963). 
PEOPLE V. SHRAKE, 25 ILL. 2D 141, 182 N.E.2D 754 (1962).  THE SUPREME
COURT OF ILLINOIS HELD THAT THE EVIDENCE HERE WAS NOT SUFFICIENT TO
REQUIRE A HEARING IN LIGHT OF THE MENTAL ALERTNESS AND UNDERSTANDING
DISPLAYED IN ROBINSON'S "COLLOQUIES" WITH THE TRIAL JUDGE.  22 ILL. 2D,
AT 168, 174 N.E.2D, AT 823.  BUT THIS REASONING OFFERS NO JUSTIFICATION
FOR IGNORING THE UNCONTRADICTED TESTIMONY OF ROBINSON'S HISTORY OF
PRONOUNCED IRRATIONAL BEHAVIOR.  WHILE ROBINSON'S DEMEANOR AT TRIAL
MIGHT BE RELEVANT TO THE ULTIMATE DECISION AS TO HIS SANITY, IT CANNOT
BE RELIED UPON TO DISPENSE WITH A HEARING ON THAT VERY ISSUE.  CF.
BISHOP V. UNITED STATES, 350 U.S. 961 (1956), REVERSING 96 U.S. APP.
D.C. 117, 120, 223 F.2D 582, 585, (1955).  LIKEWISE THE STIPULATION OF
DR. HAINES' TESTIMONY WAS SOME EVIDENCE OF ROBINSON'S ABILITY TO ASSIST
IN HIS DEFENSE.  BUT, AS THE STATE PROSECUTOR SEEMINGLY ADMITTED, ON
THE FACTS PRESENTED TO THE TRIAL COURT IT COULD NOT PROPERLY HAVE BEEN
DEEMED DISPOSITIVE ON THE ISSUE OF ROBINSON'S COMPETENCE.  (FN8)

                               III. 

HAVING DETERMINED THAT ROBINSON'S CONSTITUTIONAL RIGHTS WERE ABRIDGED
BY HIS FAILURE TO RECEIVE AN ADEQUATE HEARING ON HIS COMPETENCE TO
STAND TRIAL, WE DIRECT THAT THE WRIT OF HABEAS CORPUS MUST ISSUE AND
ROBINSON BE DISCHARGED, UNLESS THE STATE GIVES HIM A NEW TRIAL WITHIN A
REASONABLE TIME.  THIS DISPOSITION ACCORDS WITH THE PROCEDURE ADOPTED
IN ROGERS V. RICHMOND, 365 U.S. 534 (1961).  WE THERE DETERMINED THAT
SINCE THE STATE COURT HAD APPLIED AN ERRONEOUS STANDARD TO JUDGE THE
ADMISSIBILITY OF A CONFESSION, THE "DEFENDANT SHOULD HAVE THE
OPPORTUNITY TO HAVE ALL ISSUES WHICH MAY BE DETERMINATIVE OF HIS GUILT
TRIED BY A STATE JUDGE OR A STATE JURY UNDER APPROPRIATE STATE
PROCEDURES WHICH CONFORM TO THE REQUIREMENTS OF THE FOURTEENTH
AMENDMENT."  AT 547-548.  IT HAS BEEN PRESSED UPON US THAT IT WOULD BE
SUFFICIENT FOR THE COURT TO HOLD A LIMITED HEARING AS TO ROBINSON'S
MENTAL COMPETENCE AT THE TIME HE WAS TRIED IN 1959.  IF HE WERE FOUND
COMPETENT, THE JUDGMENT AGAINST HIM WOULD STAND.  BUT WE HAVE
PREVIOUSLY EMPHASIZED THE DIFFICULTY OF RETROSPECTIVELY DETERMINING AN
ACCUSED'S COMPETENCE TO STAND TRIAL.  DUSKY V. UNITED STATES, 362 U.S.
402 (1960).  THE JURY WOULD NOT BE ABLE TO OBSERVE THE SUBJECT OF THEIR
INQUIRY, AND EXPERT WITNESSES WOULD HAVE TO TESTIFY SOLELY FROM
INFORMATION CONTAINED IN THE PRINTED RECORD.  THAT ROBINSON'S HEARING
WOULD BE HELD SIX YEARS AFTER THE FACT AGGRAVATES THESE DIFFICULTIES. 
THIS NEED FOR CONCURRENT DETERMINATION DISTINGUISHES THE PRESENT CASE
FROM JACKSON V. DENNO, 378 U.S. 368 (1964), WHERE WE HELD THAT ON
REMAND THE STATE COULD DISCHARGE ITS CONSTITUTIONAL OBLIGATION BY
GIVING THE ACCUSED A SEPARATE HEARING ON THE VOLUNTARINESS OF HIS
CONFESSION. 

IF THE STATE ELECTS TO RETRY ROBINSON, IT WILL OF COURSE BE OPEN TO
HIM TO RAISE THE QUESTION OF HIS COMPETENCE TO STAND TRIAL AT THAT TIME
AND TO REQUEST A SPECIAL HEARING THEREON.  IN THE EVENT A SUFFICIENT
DOUBT EXISTS AS TO HIS PRESENT COMPETENCE SUCH A HEARING MUST BE HELD. 
IF FOUND COMPETENT TO STAND TRIAL, ROBINSON WOULD HAVE THE USUAL
DEFENSES AVAILABLE TO AN ACCUSED. 

THE CASE IS REMANDED TO THE DISTRICT COURT FOR ACTION CONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  NOR DO WE PASS ON THE CONTENTION THAT ROBINSON WAS DENIED HIS
SIXTH AMENDMENT RIGHTS BY THE TRIAL JUDGE'S REFUSAL TO ISSUE SUMMONSES
FOR MATERIAL WITNESSES. 

FN2  THESE WITNESSES WERE MISS WILLIE CEOLA PETERSON, ROBINSON'S
MOTHER; MR. WILLIAM H. LANGHAM, HIS GRANDFATHER; MRS. HELEN CALHOUN,
HIS AUNT; AND MRS. ALICE MOORE, A FAMILY FRIEND. 

FN3  THE REVEREND ELMER CLEMONS WAS ALSO SHOT AND KILLED IN THE
FRACAS.  THE INDICTMENT COVERING THAT OFFENSE WAS DISMISSED AT THE
CLOSE OF THE TRIAL IN QUESTION. 

FN4  ACCORDING TO THE TESTIMONY OF AN ARRESTING OFFICER THE FOLLOWING
EXCHANGE TOOK PLACE: 

"I ASKED HIM WHAT HIS NAME WAS AND HE SAID, 'MY NAME IS TED.'  I
SAID, 'WHAT IS YOUR REAL NAME?'  AND HE SAID, 'THEODORE ROBINSON.' 
THEN I ASKED HIM - I TOLD HIM HE WAS UNDER ARREST AND HE SAID, 'FOR
WHAT?'  I SAID, 'WELL, YOU ARE SUPPOSED TO BE WANTED FOR KILLING TWO
PEOPLE ON THE SOUTH SIDE.'   I ASKED HIM DID HE KNOW ANYTHING ABOUT IT.
HE SAID, 'NO, I DON'T KNOW WHAT YOU ARE TALKING ABOUT.'   SO THEN I
ASKED HIM WHERE HE LIVED AND HE SAID, 'I DON'T LIVE NO PLACE.' 

"I SAID, 'WHAT DO YOU MEAN YOU DON'T LIVE NO PLACE?'  HE SAID,
'THAT'S WHAT I SAID.' 

"SO THEN PRETTY SOON ASKED HIM AGAIN AND HE SAID, "SOMETIMES I STAY
WITH MY MOTHER.'  AND I SAID, 'WHERE DOES SHE LIVE?'  HE SAID, 'SOME
ADDRESS ON EAST 44TH STREET.' 

"SO THEN WE TOOK HIM ON TO THE 27TH DISTRICT AND WHILE WE WERE MAKING
THE ARREST SLIP, ASKED HIM AGAIN HIS ADDRESS AND HE SAID HE LIVED AT
7320 SOUTH PARKWAY.  THAT'S ABOUT ALL HE SAID.  HE DIDN'T KNOW ANYTHING
ABOUT ANY KILLING OR ANYTHING." 

FN5  HIS MOTHER STATED:  "I THINK HE IS INSANE."  MRS. CALHOUN
TESTIFIED AS FOLLOWS: 

"Q.  DO YOU HAVE AN OPINION AS TO WHETHER OR NOT PRESENTLY HE IS SANE
OR INSANE? 

"A.  HE IS SICK.  HE IS INSANE. 

"A.  FIRST OF ALL, DO YOU HAVE AN OPINION? 

"A.  YES. 

"Q.  WHAT IS YOUR OPINION AS TO HIS PRESENT SANITY?  ... 

"A.  HE IS MENTALLY SICK." 

FN6  ALTHOUGH DEFENSE COUNSEL PHRASED HIS QUESTIONS AND ARGUMENT IN
TERMS OF ROBINSON'S PRESENT INSANITY, WE INTERPRET HIS LANGUAGE AS
NECESSARILY PLACING IN ISSUE THE QUESTION OF ROBINSON'S MENTAL
COMPETENCE TO STAND TRIAL.  COUNSEL WAS SIMPLY BORROWING THE
TERMINOLOGY OF THE RELEVANT ILLINOIS STATUTES AND DECISIONS.  THE STATE
LAW IN EFFECT AT THE TIME OF ROBINSON'S TRIAL DIFFERENTIATED BETWEEN
LACK OF CRIMINAL RESPONSIBILITY AND COMPETENCE TO STAND TRIAL, BUT USED
"INSANITY" TO DESCRIBE BOTH CONCEPTS.  ILL. REV. STAT., C. 38, SECS
592, 593 (1963).  THE JUDGES LIKEWISE PHRASED THEIR DECISIONS ONLY IN
TERMS OF SANITY AND INSANITY.  SEE, E.G., PEOPLE V. BAKER, 26 ILL. 2D
484, 187 N.E.2D 227 (1962).  THE STATUTORY PROVISIONS AND TERMINOLOGY
IN THIS FIELD HAVE NOW BEEN CLARIFIED BY THE ENACTMENT OF AN ARTICLE
DEALING WITH THE "COMPETENCY OF ACCUSED."  ILL. REV. STAT., C. 38, SECS
104-1 TO 104-3 (1963), AS AMENDED BY THE CODE OF CRIMINAL PROCEDURE OF
1963.   EVEN IF COUNSEL MAY ALSO HAVE MEANT TO REFER TO THE STATUTORY
PROVISIONS DEALING WITH COMMITMENT FOR PRESENT INSANITY, ILL. REV.
STAT., C. 38, SEC 592 (1963), THIS FACT WOULD NOT AFFECT THE
DETERMINATION THAT COUNSEL'S WORDS RAISED A QUESTION AS TO COMPETENCE
THAT THE TRIAL JUDGE SHOULD HAVE CONSIDERED. 

FN7  MOREOVER, AS THE COURT OF APPEALS STRESSED, THE TRIAL JUDGE DID
NOT GIVE ROBINSON AN OPPORTUNITY TO INTRODUCE EXPERT TESTIMONY ON THE
QUESTION OF HIS SANITY.  THE JUDGE DENIED COUNSEL'S REQUEST FOR A
CONTINUANCE OF SEVERAL HOURS IN ORDER TO SECURE THE APPEARANCE OF A
PSYCHIATRIST FROM THE ILLINOIS PSYCHIATRIC INSTITUTE. 

FN8  AS DEFENSE COUNSEL INSISTED IN HIS CLOSING ARGUMENT: 

"IN THIS CASE, WHICH IS A VERY SERIOUS CASE, THE DEFENDANT HAS BEEN
ABLE TO COOPERATE WITH COUNSEL WITH SOME RESERVATIONS  ...  .  HOWEVER,
I DO NOT FEEL THAT THIS PRESENT  ...  LUCIDITY BEARS ON THE ISSUE OF
HIS SANITY AT THE TIME OF THE CRIME AND HIS SANITY AT THE PRESENT
TIME.  I THINK THE WORDS SANITY AND INSANITY, THE WORDS ARE LEGAL
TERMS.  I THINK THAT PRESENTLY MR. THEODORE ROBINSON IS IN A LUCID
INTERVAL.  I BELIEVE THAT FROM THE WITNESS STAND YOU HAVE HEARD
TESTIMONY TO INDICATE AND PROVE THAT MR. THEODORE ROBINSON IS PRESENTLY
INSANE  ...  ." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

THE FACTS NOW CANVASSED BY THIS COURT TO SUPPORT ITS CONSTITUTIONAL
HOLDING WERE FULLY SIFTED BY THE ILLINOIS SUPREME COURT.  I CANNOT
AGREE THAT THE STATE COURT'S UNANIMOUS APPRAISAL WAS ERRONEOUS AND
STILL LESS THAT IT WAS ERROR OF CONSTITUTIONAL PROPORTIONS. 

THE COURT APPEARS TO HOLD THAT A DEFENDANT'S PRESENT IMCOMPETENCE MAY
BECOME SUFFICIENTLY MANIFEST DURING A TRIAL THAT IT DENIES HIM DUE
PROCESS FOR THE TRIAL COURT TO FAIL TO CONDUCT A HEARING ON THAT
QUESTION ON ITS OWN INITIATIVE.  I DO NOT DISSENT FROM THIS VERY
GENERAL PROPOSITION, AND I AGREE ALSO THAT SUCH AN ERROR IS NOT
"WAIVED" BY FAILURE TO RAISE IT AND THAT IT MAY ENTITLE THE DEFENDANT
TO A NEW TRIAL WITHOUT FURTHER PROOF.  WAIVER IS NOT AN APPOSITE
CONCEPT WHERE WE PREMISE A DEFENDANT SO DERANGED THAT HE CANNOT OVERSEE
HIS LAWYERS.  SINCE OUR FURTHER PREMISE IS THAT THE TRIAL JUDGE SHOULD
AND COULD HAVE AVOIDED THE ERROR, A NEW TRIAL SEEMS NOT TOO DRASTIC AN
EXACTION IN VIEW OF THE PROOF PROBLEMS ARISING AFTER A SIGNIFICANT
LAPSE OF TIME.  (FN1)  HOWEVER, I DO NOT BELIEVE THE FACTS KNOWN TO THE
TRIAL JUDGE IN THIS CASE SUGGESTED ROBINSON'S INCOMPETENCE AT TIME OF
TRIAL WITH ANYTHING LIKE THE FORCE NECESSARY TO MAKE OUT A VIOLATION OF
DUE PROCESS IN THE FAILURE TO PURSUE THE QUESTION. 

BEFORE TURNING TO THE FACTS, IT IS PERTINENT TO CONSIDER THE QUALITY
OF THE INCOMPETENCE THEY ARE SUPPOSED TO INDICATE.  IN FEDERAL COURTS -
AND I ASSUME NO MORE IS ASKED OF STATE COURTS - THE TEST OF
INCOMPETENCE THAT WARRANTS POSTPONING THE TRIAL IS REASONABLY WELL
SETTLED.  IN LANGUAGE THIS COURT ADOPTED ON THE ONE OCCASION IT FACED
THE ISSUE, "THE 'TEST MUST BE WHETHER  ...  THE DEFENDANT HAS
SUFFICIENT PRESENT ABILITY TO CONSULT WITH HIS LAWYER WITH A REASONABLE
DEGREE OF RATIONAL UNDERSTANDING - AND WHETHER HE HAS A RATIONAL AS
WELL AS FACTUAL UNDERSTANDING OF THE PROCEEDINGS AGAINST HIM.'"  DUSKY
V. UNITES STATES, 362 U.S. 402.  IN SHORT, EMPHASIS IS ON CAPACITY TO
CONSULT WITH COUNSEL AND TO COMPREHEND THE PROCEEDINGS, AND LOWER
COURTS HAVE RECOGNIZED THAT THIS IS BY NO MEANS THE SAME TEST AS THOSE
WHICH DETERMINE CRIMINAL RESPONSIBILITY AT THE TIME OF THE CRIME. 
(FN2)  THE QUESTION, THEN, IS NOT WHETHER THE FACTS BEFORE THE TRIAL
JUDGE SUGGESTED THAT ROBINSON'S CRIME WAS AN INSANE ACT BUT WHETHER
THEY SUGGESTED HE WAS INCOMPETENT TO STAND TRIAL. 

THE COURT'S AFFIRMATIVE ANSWER SEEMINGLY RESTS ON TWO KINDS OF
EVIDENCE, PRINCIPALLY ADDUCED BY ROBINSON TO PROVE AN INSANITY DEFENSE
AFTER THE STATE RESTED ITS MAIN CASE.  FIRST, THERE WAS EVIDENCE OF A
NUMBER OF EPISODES OF SEVERE IRRATIONALITY IN ROBINSON'S PAST.  AMONG
THEM WERE THE SLAYING OF HIS INFANT SON, HIS ATTEMPTED SUICIDE, HIS
EFFORTS TO BURN HIS WIFE'S CLOTHING, HIS FITS OF TEMPER AND OF
ABSTRACTION, AND HIS SEVEN-WEEK INCARCERATION IN A STATE HOSPITAL EIGHT
YEARS BEFORE THE TRIAL.  THIS EVIDENCE MAY BE TEMPERED BY THE STATE'S
COUNTERARGUMENTS, FOR EXAMPLE, THAT ROBINSON WAS FOUND GUILTY OF OF HIS
SON'S KILLING AND THAT ALCOHOLISM MAY EXPLAIN HIS HOSPITALIZATION, BUT
IT CANNOT BE WRITTEN OFF ENTIRELY.  THE DIFFICULTY REMAINS THAT WHILE
THIS TESTIMONY MAY SUGGEST THAT FLOSSIE MAY WARD'S KILLING WAS JUST ONE
MORE IRRATIONAL ACT, I CANNOT SAY AS A MATTER OF COMMON KNOWLEDGE THAT
IT EVIDENCES INCAPACITY DURING THE TRIAL.  INDEED, THE PATTERN REVEALED
MAY BEST INDICATE THAT ROBINSON DID FUNCTION ADEQUATELY DURING MOST OF
HIS LIFE INTERRUPTED BY PERIODS OF SEVERE DERANGEMENT THAT WOULD HAVE
BEEN QUITE APPARANT HAD THEY OCCURRED AT TRIAL.  THE SECOND CLASS OF
DATA PERTINENT TO THE COURT'S THEORY, REMARKS BY WITNESSES AND COUNSEL
THAT ROBINSON WAS "PRESENTLY INSANE," DESERVES LITTLE COMMENT.  I THINK
IT APPARENT THAT THESE STATEMENTS WERE ADDRESSED TO ROBINSON'S
RESPONSIBILITY FOR THE KILLING, THAT IS, HIS ABILITY TO DO INSANE ACTS,
AND NOT TO HIS GENERAL COMPETENCY TO STAND TRIAL.  (FN3) 

WHATEVER MILD DOUBTS THIS EVIDENCE MAY STIR ARE SURELY ALLAYED BY
POSITIVE INDICATIONS OF ROBINSON'S COMPETENCE AT THE TRIAL.  FOREMOST
IS HIS OWN BEHAVIOR IN THE COURTROOM.  THE RECORD REVEALS COLLOQUIES
BETWEEN ROBINSON AND THE TRIAL JUDGE WHICH UNDOUBTEDLY PERMITTED A
REASONABLE INFERENCE THAT ROBINSON WAS QUITE COGNIZANT OF THE
PROCEEDINGS AND ABLE TO ASSIST COUNSEL IN HIS DEFENSE.  (FN4)  TURNING
FROM LAY IMPRESSIONS TO THOSE OF AN EXPERT, IT WAS STIPULATED AT TRIAL
THAT A DR. HAINES, DIRECTOR OF THE BEHAVIOR CLINIC OF THE CRIMINAL
COURT OF COOK COUNTY, HAD EXAMINED ROBINSON SEVERAL MONTHS EARLIER AND,
IF CALLED, WOULD TESTIFY THAT ROBINSON "KNOWS THE NATURE OF THE CHARGE
AND IS ABLE TO COOPERATE WITH HIS COUNSEL."  THE CONCLUSIVE FACTOR IS
THAT ROBINSON'S OWN LAWYERS, THE TWO MEN WHO APPRARENTLY HAD THE
CLOSEST CONTACT WITH THE DEFENDANT DURING THE PROCEEDINGS, NEVER
SUGGESTED HE WAS INCOMPETENT TO STAND TRIAL AND NEVER MOVED TO HAVE HIM
EXAMINED ON INCOMPETENCY GROUNDS DURING TRIAL; (FN5) INDEED, COUNSEL'S
REMARKS TO THE JURY SEEM BEST READ AS AN AFFIRMATION OF ROBINSON'S
PRESENT "LUCIDITY" WHICH WOULD BE HIGHLY PECULIAR IF ROBINSON HAD BEEN
UNABLE TO ASSIST PROPERLY IN HIS DEFENSE.  SEE P. 386, N. 8, ANTE, OF
THE COURT'S OPINION.    THUS, I CANNOT AGREE WITH THE COURT THAT THE
REQUIREMENTS OF DUE PROCESS WERE VIOLATED BY THE FAILURE OF THE TRIAL
JUDGE, WHO HAD OPPORTUNITIES FOR PERSONAL OBSERVATION OF THE DEFENDANT
THAT WE DO NOT POSSESS, TO HALT THE TRIAL AND HOLD A COMPETENCY HEARING
ON HIS OWN MOTION. 

SEVERAL OTHER GROUNDS HAVE BEEN URGED AS A BASIS FOR HABEAS CORPUS
RELIEF FOR ROBINSON.  THESE OTHER GROUNDS ARE UNDERSTANDABLY NOT
DISCUSSED IN THE COURT'S OPINION, AND I THINK IT IS SUFFICIENT FOR ME
TO SAY I DO NOT BELIEVE THAT THEY WARRANT FURTHER PROCEEDINGS.  IN MY
VIEW, THE COURT OF APPEALS SHOULD BE REVERSED AND THE DISTRICT COURT'S
DISMISSAL OF THE PETITION REINSTATED. 

FN1  THE CONSTITUTIONAL VIOLATION ALLEGED IS THE FAILURE TO MAKE AN
INQUIRY.  IN THE MORE USUAL CASE, THE SIMPLE CLAIM THAT A DEFENDANT WAS
CONVICTED WHILE INCOMPETENT DURING THE TRIAL, THERE IS OF COURSE NO
PROOF OF A CONSTITUTIONAL VIOLATION UNTIL THAT INCOMPETENCE IS
ESTABLISHED IN APPROPRIATE PROCEEDINGS. 

FN2  SEE JAMES V. BOLES 339 F.2D 431; UNITED STATES V. KENDRICK, 331
F.2D 110; LYLES V. UNITED STATES, 103 U.S. APP. D.C. 22, 254 F.2D 725. 

FN3  AT THE TIME ROBINSON'S MOTHER AND MRS. CALHOUN MADE THE
STATEMENTS NOTED IN THE COURT'S OPINION, P. 383, N. 5, ANTE, THEY ALSO
STATED ROBINSON DID NOT KNOW THE DIFFERENCE BETWEEN RIGHT AND WRONG. 
COUNSEL'S STATEMENT, TOO, QUOTED BY THE COURT AT P. 386, N. 8, ANTE,
WAS DIRECTED TO ACQUITTAL, NOT POSTPONEMENT.  SEE, N. 5, INFRA.  MRS.
MOORE, A FAMILY FRIEND, RESPONDED TO THE QUESTION ON ROBINSON'S SANITY
BY SAYING:  "WHEN HE IS IN THOSE MOODS, I THINK HE IS INSANE; WHEN HE
IS IN THOSE MOODS, BECAUSE HE IS TERRIBLE." 

FN4  THE ILLINOIS SUPREME COURT STATED IN ITS OPINION:  "THE RECORD
REFLECTS SEVERAL INSTANCES WHERE DEFENDANT DISPLAYED HIS ABILITY TO
ASSIST IN THE CONDUCT OF HIS DEFENSE IN A REASONABLE AND RATIONAL
MANNER.  TYPICAL INSTANCES OF WHEN DEFENDANT DISPLAYED MENTAL
ALERTNESS, AS WELL AS UNDERSTANDING AND KNOWLEDGE OF THE PROCEEDING,
APPEAR IN HIS REMARKS TO THE COURT AS FOLLOWS:  'YOUR HONOR, THEY WERE
ON THE STATE'S WITNESS LIST AND THE STATE SAID THEY HAVE SEVERAL
WITNESSES.  THEY PRODUCED TWO.  FOR WHAT REASON, I DON'T KNOW, BUT I AM
ON TRIAL HERE AND I WOULD LIKE TO BE GIVEN EVERY CONSIDERATION, AND I
WOULD LIKE THAT THE COURT BE ADJOURNED UNTIL TOMORROW MORNING - TO GIVE
ME TIME TO CONFER WITH COUNSEL FOR THE CALLING OF WITNESSES.'  AGAIN,
WHEN DISCUSSING WITNESSES WITH THE COURT, DEFENDANT SAID:  'WELL, THE
POLICE ARE CONTENDING THAT THE CLOTHES THEY HAVE FOUND IN MOORE'S
APARTMENT WAS MINE.  THAT IS THE REASON AT THE BEGINNING OF TRIAL, I
ASKED THE ATTORNEY TO HAVE A PRE-TRIAL PRELIMINARY TO DETERMINE THE
ADMISSIBILITY AND VALIDITY OF THE EVIDENCE THAT THE STATE WAS INTENDING
TO USE AGAINST ME.'"  22 ILL. 2D, AT 168, 174 N.E.2D, AT 823. 

FN5  THE RECORD IN MY VIEW DOES NOT BEAR OUT ANY SUGGESTION THAT
ROBINSON'S COUNSEL APPRISED THE TRIAL JUDGE THAT HE BELIEVED ROBINSON
INCOMPETENT TO STAND TRIAL, EVEN GRANTING THAT "INSANE" WAS A SYNONYM
FOR "INCOMPETENT" UNDER THEN-EXISTING STATE LAW (PP. 384-385, N. 6,
ANTE).  UNDER ILLINOIS LAW, AS ONE WOULD NATURALLY EXPECT, INCOMPETENCE
AT THE TIME OF TRIAL HAS BEEN A GROUND NOT FOR ACQUITTING THE DEFENDANT
BUT FOR POSTPONING HIS TRIAL; AND NOWHERE IN THE RECORD DOES ROBINSON'S
COUNSEL EVEN HINT TO THE JUDGE THAT HE BELIEVES THE TRIAL SHOULD BE
DEFERRED OR ABATED BECAUSE HIS CLIENT IS NOT FIT TO CONTINUE.  THE
READY EXPLANATION FOR COUNSEL'S REFERENCES TO "PRESENT INSANITY," APART
FROM EMPHASIZING ROBINSON'S GENERAL LACK OF CRIMINAL RESPONSIBILITY, IS
THAT ILLINOIS LAW PROVIDED THAT ONE ACQUITTED ON GROUNDS OF INSANITY AT
THE TIME OF THE CRIME SHALL BY THE SAME VERDICT BE FOUND CURED OF OR
STILL AFFLICTED WITH "SUCH INSANITY" AND COMMITTED IN THE LATTER
INSTANCE.  ILL. REV. STAT., C. 38, SEC 592 (1959). 
..END :














PERRY V. COMMERCE LOAN CO. 383 U.S. 392 


NO. 694.  ARGUED JANUARY 26, 1966 - DECIDED MARCH 7, 1966 - 340 F.2D
588, REVERSED AND REMANDED. 


PETITIONER SOUGHT CONFIRMATION OF HIS PLAN FOR AN EXTENSION OF TIME TO
PAY HIS DEBTS OUT OF FUTURE WAGES, PURSUANT TO CHAPTER XIII OF THE
BANKRUPTCY ACT.  ON MOTION OF RESPONDENT, A CREDITOR, THE REFEREE
DISMISSED THE PLAN ON THE GROUND THAT PETITIONER'S DISCHARGE IN A
STRAIGHT BANKRUPTCY PROCEEDING WITHIN SIX YEARS OF THIS PROCEEDING
BARRED CONFIRMATION UNDER SEC 14(C)(5) OF THE ACT.  THAT SECTION
PROVIDES FOR DISCHARGE UNLESS THE BANKRUPT HAS "WITHIN SIX YEARS PRIOR
TO BANKRUPTCY BEEN GRANTED A DISCHARGE, OR HAD A COMPOSITION OR AN
ARRANGEMENT BY WAY OF COMPOSITION OR A WAGE EARNER'S PLAN BY WAY OF
COMPOSITION CONFIRMED UNDER THIS ACT  ...  ."  SECTION 656(A)(3)
REQUIRES CONFIRMATION OF A WAGE EARNER'S EXTENSION PLAN IF "THE DEBTOR
HAS NOT BEEN GUILTY OF ANY OF THE ACTS OR FAILED TO PERFORM ANY OF THE
DUTIES WHICH WOULD BE A BAR TO THE DISCHARGE OF THE BANKRUPT  ... ."
THE DISTRICT COURT UPHELD THE REFEREE'S DISMISSAL AND THE COURT OF
APPEALS AFFIRMED.  HELD: 

1.  CONFIRMATION OF A WAGE-EARNER EXTENSION PLAN IS NOT BARRED UNDER
SEC 14(C)(5) OF THE BANKRUPTCY ACT BY A DISCHARGE IN BANKRUPTCY WITHIN
THE PREVIOUS SIX YEARS.  PP. 394-402. 

(A)  CONGRESS HAS CLEARLY INTENDED BY CHAPTER XIII TO ENCOURAGE THE
USE OF WAGE-EARNER EXTENSION PLANS BY WHICH DEBTORS ARRANGE TO PAY
THEIR DEBTS IN FULL RATHER THAN GO INTO STRAIGHT BANKRUPTCY OR
COMPOSITION.  PP. 394-397. 

(B)  THE PURPOSE OF THE SIX-YEAR BAR, WHICH WAS ENACTED LONG BEFORE
THE ADOPTION OF CHAPTER XIII, WAS TO PREVENT THE CREATION OF HABITUAL
BANKRUPTS (I.E., DEBTORS WHO ESCAPE THEIR OBLIGATIONS BY REPEATED
BANKRUPTCY) AND IS COMPLETELY OPPOSED TO THE PURPOSE OF THE WAGE-EARNER
EXTENSION PLAN WHEREBY THE DEBTOR MEETS THE CLAIMS OF HIS CREDITORS. 
PP. 399-400. 

(C)  THE AMBIGUOUS LANGUAGE USED IN SEC 656(A)(3) CONCERNING "GUILTY"
ACTS AND UNFULFILLED DUTIES IMPELS RECOURSE TO THE LEGISLATIVE PURPOSES
OF THE ACT.  PP. 400-401. 

(D)  THE ABSENCE OF LEGISLATIVE HISTORY BEARING ON THE ADOPTION IN
CHAPTER XIII OF SEC 656(A)(3) INDICATES THAT ITS INCLUSION WAS A
LEGISLATIVE OVERSIGHT, AT LEAST INSOFAR AS IT BEARS ON WAGE-EARNERS'
EXTENSION PLANS.  P. 401. 

2.  THIS COURT'S CONSTRUCTION THAT THE SIX-YEAR BAR IS INAPPLICABLE
TO WAGE-EARNER EXTENSION PLANS DOES NOT PRECLUDE APPLICATION OF SEC
14(C)(5) TO CONFIRMATIONS OF GENERAL ARRANGEMENTS UNDER CHAPTER XI,
REAL PROPERTY ARRANGEMENTS UNDER CHAPTER XII, AND TO WAGE-EARNER
COMPOSITIONS UNDER CHAPTER XIII.  PP. 402-403. 

3.  IF A WAGE EARNER IS UNABLE TO COMPLY WITH HIS EXTENSION PLAN AND
SEEKS DISCHARGE UNDER SEC 661, THUS TRANSPOSING THE EXTENSION PLAN INTO
A COMPOSITION, THE SIX-YEAR BAR WOULD APPLY.  P. 404. 

PERRY V. COMMERCE LOAN CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PERRY, A FURNACE OPERATOR EMPLOYED BY MOORE LEAD COMPANY, FILED A
PETITION IN THE DISTRICT COURT UNDER CHAPTER XIII OF THE BANKRUPTCY
ACT, 52 STAT. 930 (1938), AS AMENDED, 11 U.S.C.  SECS 1001-1086, (FN1)
REQUESTING CONFIRMATION OF HIS PLAN FOR AN EXTENSION OF TIME WITHIN
WHICH TO PAY HIS DEBTS OUT OF HIS FUTURE WAGES.  IN HIS PLAN HE
PROPOSED TO PAY HIS DEBTS OF $1,412 IN 28 EQUAL MONTHLY INSTALLMENTS OF
$60 FROM HIS WAGES OF $265 A MONTH.  ON THE HEARING FOR CONFIRMATION OF
THE PLAN, HOWEVER, IT APPEARED THAT PERRY HAD PREVIOUSLY FILED A
PETITION IN STRAIGHT BANKRUPTCY AND OBTAINED A DISCHARGE THEREIN IN
1959, WITHIN SIX YEARS OF THE FILING OF THIS PROCEEDING.  ON MOTION OF
THE RESPONDENT, COMMERCE LOAN COMPANY, THE REFEREE DISMISSED THE PLAN
ON THE GROUND THAT THE PREVIOUS BANKRUPTCY WAS A BAR THERETO UNDER THE
PROVISIONS OF SEC 14(C)(5) OF THE ACT.  (FN2)  ON REVIEW THE DISTRICT
COURT UPHELD THE DISMISSAL.  THE COURT OF APPEALS AFFIRMED.  340 F.2D
588.  WE GRANTED CERTIORARI, 382 U.S. 889, IN VIEW OF A CONFLICT ON THE
POINT AMONG THE COURTS OF APPEALS.  (FN3)  WE CONCLUDE THAT
CONFIRMATIONS OF WAGE-EARNER PLANS BY WAY OF EXTENSIONS ARE NOT
AFFECTED BY SEC 14(C)(5), AND, THEREFORE, REVERSE THE JUDGMENT BELOW. 

                                            I 

ALTHOUGH STATUTORY RELIEF FOR THE FINANCIALLY DISTRESSED WAGE EARNER
HAD BEEN AVAILABLE TO SOME EXTENT AS EARLY AS THE BANKRUPTCY ACT OF
1867, 14 STAT. 517, CONGRESS FOUND IN ITS STUDY PRIOR TO THE 1938
REVISION OF THE BRANKRUPTCY LAWS THAT THERE WERE NO EFFECTIVE
PROVISIONS FOR THE COMPLETE REPAYMENT OF THE WAGE EARNER'S DEBTS SUITED
TO HIS PROBLEMS.  H.R. REP. NO. 1409, 75TH CONG., 1ST SESS., 53
(1937).  FOR EXAMPLE, COMPOSITIONS UNDER SEC 12 OF THE 1898 ACT, 30
STAT. 549, WERE AVAILABLE TO THE WAGE EARNER, BUT THE RELIEF AFFORDED
WAS UNSATISFACTORY.  SECTION 12 PROCEEDINGS, WHICH WERE PRIMARILY
ADAPTABLE FOR USE BY BUSINESS ENTITIES, WERE DISPROPORTIONATELY
EXPENSIVE IN VIEW OF THE SMALL SUMS ORDINARILY INVOLVED IN WAGE-EARNER
CASES; THEY LACKED FLEXIBILITY; AND THEY DID NOT PROVIDE FOR
JURISDICTION OF THE COURT SUBSEQUENT TO CONFIRMATION.  OTHER PROVISIONS
OF THE ACT HAD SIMILAR DISADVANTAGES.  FACED WITH INADEQUATE RELIEF
UNDER THE FEDERAL BANKRUPTCY LAWS AND OFTEN WITH LITTLE PROTECTION FROM
CREDITORS UNDER STATE LAW, THE ONLY COURSE USUALLY OPEN TO THE WAGE
EARNING DEBTOR WAS STRAIGHT BANKRUPTCY.  IN SUCH PROCEEDINGS, EVERYONE
LOST - THE CREDITORS BY RECEIVING A MERE FRACTION OF THEIR CLAIMS, THE
DEBTOR BY BEARING THEREAFTER THE STIGMA OF HAVING BEEN ADJUDGED A
BANKRUPT.  IN DESIGNING A REMEDY FOR THE DILEMMA FACING A DEBTOR
SEEKING TO REPAY, RATHER THAN AVOID, HIS OBLIGATIONS, THE CONGRESS
SETTLED UPON THE WAGE-EARNER EXTENSION-OF-TIME PROCEDURES OF CHAPTER
XIII.  THE CHAPTER GAVE - AND WAS INTENDED TO GIVE - TO THE WAGE EARNER
A REASONABLE OPPORTUNITY TO ARRANGE INSTALLMENT PAYMENTS TO BE MADE OUT
OF HIS FUTURE EARNINGS.  CONGRESS CLEARLY INTENDED TO ENCOURAGE WAGE
EARNERS TO PAY THEIR DEBTS IN FULL, RATHER THAN TO GO INTO STRAIGHT
BANKRUPTCY OR COMPOSITION, BY OFFERING TWO INDUCEMENTS: (1) AVOIDANCE
OF AN ADJUDICATION OF BANKRUPTCY WITH ITS ATTENDANT STIGMA; AND, AT THE
SAME TIME, (2) TEMPORARY FREEDOM DURING THE EXTENSION FROM
GARNISHMENTS, ATTACHMENTS AND OTHER HARASSMENT BY CREDITORS.  H.R. REP.
NO. 1409, 75TH CONG., 1ST SESS., AT 52-55. 

HISTORY DEMONSTRATES THAT EXTENSION PLANS UNDER CHAPTER XIII ARE
FULFILLING THE PURPOSES INTENDED.   THE RECORDS OF THE ADMINISTRATIVE
OFFICE OF THE UNITED STATES COURTS SHOW THAT OVER THE PAST 20 YEARS
MORE THAN 20% OF ALL PROCEEDINGS FILED UNDER THE BANKRUPTCY ACT BY WAGE
EARNERS HAVE BEEN FOR PLANS UNDER CHAPTER XIII, THE OVERWHELMING
MAJORITY OF THESE BEING FOR EXTENSION PLANS.  (FN4) SINCE MANY WAGE
EARNERS WHO GO INTO BANKRUPTCY DO NOT PROCEED UNDER CHAPTER XIII
BECAUSE THEY ARE UNEMPLOYED (AND CONSEQUENTLY HAVE NO EARNINGS TO USE
FOR EXTENSION ARRANGEMENTS), HAVE AN INEXTRICABLY LARGE INDEBTEDNESS,
OR ARE SIMPLY UNAWARE OF THE EXISTENCE OF AN ALTERNATIVE TO STRAIGHT
BANKRUPTCY, THE 20% FIGURE IS EVEN MORE SIGNIFICANT.  MOREOVER, LARGE
SUMS OF MONEY ARE ANNUALLY RETURNED TO CREDITORS UNDER EXTENSION PLANS,
THE CURRENT RATE BEING WELL OVER $26,000,000.  AS WAGE EARNERS
ORDINARILY HAVE LITTLE OR NO ASSETS AVAILABLE FOR DISTRIBUTION IN
STRAIGHT BANKRUPTCY, THESE SUMS REPRESENT SETTLEMENTS WHICH THE DEBTORS
WOULD OTHERWISE BE UNABLE TO EFFECT AND THE CREDITORS UNABLE TO
OBTAIN.  SEE NOTE, THE WAGE EARNER PLAN - A SUPERIOR ALTERNATIVE TO
STRAIGHT BANKRUPTCY, 9 UTAH L. REV. 730 (1965); ALLGOOD, OPERATION OF
THE WAGE EARNERS' PLAN IN THE NORTHERN DISTRICT OF ALABAMA, 14 RUTGERS
L. REV. 578 (1960). 

IN LIGHT OF THE PROVEN ADVANTAGES OF EXTENSION PLANS, THE CONGRESS
HAS RE-EXPRESSED ITS LEGISLATIVE PURPOSE IN AMENDMENTS TO CHAPTER XIII
ADOPTED SINCE THE ORIGINAL ENACTMENT.  A REPORT TO THE HOUSE OF
REPRESENTATIVES EXPRESSES IT IN THESE WORDS: 

"CHAPTER XIII PROVIDES A HIGHLY DESIRABLE METHOD FOR DEALING WITH THE
FINANCIAL DIFFICULTIES OF INDIVIDUALS.  IT CREATES AN EQUITABLE AND
FEASIBLE WAY FOR THE HONEST AND CONSCIENTIOUS DEBTOR TO PAY OFF HIS
DEBTS RATHER THAN HAVING THEM DISCHARGED IN BANKRUPTCY.  THE POWER OF
THE COURT TO CHANGE THE AMOUNT AND MATURITY OF INSTALLMENT PAYMENTS
WITHOUT AFFECTING THE AGGREGATE AMOUNT OF SUCH PAYMENTS MAKES CHAPTER
XIII PARTICULARLY APPLICABLE TO THE PRESENT-DAY FINANCIAL PROBLEMS
GENERATED BY HEAVY INSTALLMENT BUYING."  H.R. REP. NO. 193, 86TH CONG.,
1ST SESS., 2 (1959). 

AND SIMILARLY, THE SENATE REPORT STATES: 

"WE THINK THERE CAN BE NO DOUBT  ...  THAT A PROCEDURE BY WHICH A
DEBTOR WHO IS FINANCIALLY INVOLVED AND UNABLE TO MEET HIS DEBTS AS THEY
MATURE, OVER A PERIOD OF TIME, WORKS OUT OF HIS INVOLVEMENT AND PAYS
HIS DEBTS IN FULL IS GOOD FOR HIS CREDITORS AND GOOD FOR HIM."  S. REP.
NO. 179, 86TH CONG., 1ST SESS., 2 (1959). 

IT IS WITH THIS UNDERLYING POLICY IN MIND THAT WE TURN TO A
CONSIDERATION OF THE PROBLEM POSED HERE, I.E., WHETHER CONFIRMATION OF
AN EXTENSION PLAN IS BARRED BY A DISCHARGE IN BANKRUPTCY OBTAINED
WITHIN THE PREVIOUS SIX YEARS. 

                                       II. 

CHAPTER XIII REQUIRES THE CONFIRMATION OF A WAGE-EARNER EXTENSION
PLAN IF "THE DEBTOR HAS NOT BEEN GUILTY OF ANY OF THE ACTS OR FAILED TO
PERFORM ANY OF THE DUTIES WHICH WOULD BE A BAR TO THE DISCHARGE OF THE
BANKRUPT  ...  " SEC 656(A)(3).  AND CHAPTER III COMMANDS THAT A
DISCHARGE OF A BANKRUPT SHALL BE GRANTED UNLESS THE COURT IS SATISFIED
THAT THE BANKRUPT HAS "WITHIN SIX YEARS PRIOR TO THE DATE OF THE FILING
OF THE PETITION IN BANKRUPTCY  ...  BEEN GRANTED A DISCHARGE, OR HAD A
COMPOSITION OR AN ARRANGEMENT BY WAY OF COMPOSITION CONFIRMED UNDER
THIS ACT  ...  " SEC 14(C)(5).   THE "DISCHARGE" OF A DEBTOR UNDER A
WAGE-EARNER PLAN SHALL ISSUE AFTER COMPLIANCE WITH THE PROVISIONS OF
THE CONFIRMED PLAN, SEC 660, C. XIII, 11 U.S.C. SEC 1060.  IF AT THE
EXPIRATION OF THREE YEARS FROM THE DATE OF CONFIRMATION OF THE PLAN THE
DEBTOR HAS NOT COMPLETED HIS PAYMENTS IN ACCORDANCE WITH HIS PLAN THE
COURT MAY, AFTER NOTICE AND HEARING, DISCHARGE THE DEBTS AND
LIABILITIES DISCHARGEABLE UNDER THE PLAN, PROVIDED THE COURT IS
SATISFIED THAT THE DEBTOR'S FAILURE TO MAKE ALL OF HIS PAYMENTS "WAS
DUE TO CIRCUMSTANCES FOR WHICH HE COULD NOT BE JUSTLY HELD
ACCOUNTABLE."  SEC 661, C XIII, 11 U.S.C. SEC 1061.  AND FINALLY, SEC
602, OF CHAPTER XIII (FN5) DECLARES THAT THE PROVISIONS OF CHAPTERS I
THROUGH VII OF THE BANKRUPTCY ACT, INSOFAR AS THEY ARE NOT INCONSISTENT
OR IN CONFLICT WITH THE PROVISIONS OF CHAPTER XIII, APPLY IN
PROCEEDINGS THEREUNDER. 

WE SHOULD NOTE AT THE OUTSET THAT IN HIS PRESENT APPLICATION FOR
RELIEF PERRY DID NOT FILE A STRAIGHT, VOLUNTARY BANKRUPTCY ACTION IN
THE DISTRICT COURT, NOR "A COMPOSITION OR AN ARRANGEMENT BY WAY OF
COMPOSITION OR A WAGE EARNER'S PLAN BY WAY OF COMPOSITION."  HE
PROPOSED TO PAY ALL HIS DEBTS, SECURED AND UNSECURED, AND SOUGHT ONLY
AN EXTENSION OF TIME - 28 MONTHS - IN WHICH TO PAY THEM IN EQUAL
INSTALLMENTS FROM HIS FUTURE WAGES.  ORDINARILY, A WAGE EARNER SEEKING
TO OBTAIN THE BENEFITS OF EXTENSION PROCEEDINGS UNDER CHAPTER XIII NEED
ONLY FILE A PLAN THAT MEETS THE APPROVAL OF THE MAJORITY OF HIS
CREDITORS, SEC 652, 11 U.S.C. SEC 1052, AND IS CONFIRMED BY THE COURT;
WHEREUPON THE PLAN BECOMES BINDING, SEC 657, 11 U.S.C. SEC 1057, AND
THE APPOINTED TRUSTEE COMMENCES COLLECTING AND DISBURSING TO THE
CREDITORS THE PERIODIC PAYMENTS PROVIDED UNDER THE PLAN.  EXTENSION
PLANS, THEREFORE, DIFFER MATERIALLY FROM STRAIGHT BANKRUPTCY,
ARRANGEMENTS UNDER CHAPTERS XI AND XII, AND WAGE-EARNER PLANS BY WAY OF
COMPOSITION, ALL OF WHICH CONTEMPLATE ONLY A PARTIAL PAYMENT OF THE
WAGE EARNER'S DEBTS.  INDEED, UNDER AN EXTENSION PLAN, THE WAGE EARNER
WHO MAKES THE REQUIRED PAYMENTS WILL HAVE PAID HIS DEBTS IN FULL AND
WILL NOT NEED A DISCHARGE, EVEN THOUGH THE ACT PROVIDES FOR A FORMAL
ONE.  SEC 660. 

IN VIEW OF THESE CONSIDERATIONS AND THE PURPOSES OF CHAPTER XIII AS
OUTLINED ABOVE, WE DO NOT BELIEVE THAT THE CONGRESS INTENDED TO APPLY
THE SIX-YEAR BAR OF SEC 14(C)(5) TO THE CONFIRMATION OF WAGE-EARNER
EXTENSION PLANS.  THE SIX-YEAR BAR WAS ENACTED 35 YEARS PRIOR TO THE
ADOPTION OF CHAPTER XIII, 32 STAT. 797 (1903), AT A TIME WHEN NO RELIEF
CORRESPONDING TO EXTENSION PLANS EXISTED UNDER THE BANKRUPTCY ACT.  THE
UNMISTAKABLE PURPOSE OF THE SIX-YEAR PROVISION WAS TO PREVENT THE
CREATION OF A CLASS OF HABITUAL BANKRUPTS - DEBTORS WHO MIGHT
REPEATEDLY ESCAPE THEIR OBLIGATIONS AS FREQUENTLY AS THEY CHOSE BY
GOING THROUGH REPEATED BANKRUPTCY.  SEE H.R. REP. NO. 1698, 57TH CONG.,
1ST SESS., 2 (1902); IN RE THOMPSON, 51 F. SUPP. 12, 13 (1943).  BUT AN
EXTENSION PLAN HAS NO ESCAPE HATCH FOR DEBTORS, IT IS "A METHOD BY
WHICH, WITHOUT RESTORING TO BANKRUPTCY PROCEEDINGS IN THE USUAL SENSE,
A WAGE EARNER MAY MEET THE CLAIMS OF CREDITORS."  S. REP. NO. 179, 86TH
CONG., 1ST SESS., 2 (1959).  TO APPLY THE SIX-YEAR BAR AT THE TIME OF
RULING ON THE CONFIRMATION OF AN EXTENSION PLAN WOULD BE BOTH ILLOGICAL
AND IN HEAD-ON COLLISION WITH THE CONGRESSIONAL PURPOSE AS ANNOUNCED IN
THE ADOPTION AND DESIGN OF EXTENSION PLANS UNDER CHAPTER XIII.  (FN6)
EVEN IF A LITERAL READING OF THESE PROVISIONS SUGGESTED THE APPLICATION
OF SEC 14(C)(5) TO EXTENSION PLANS, WE WOULD HAVE LITTLE HESITATION IN
CONSTRUING THE ACT TO GIVE EFFECT TO THE CLEAR POLICY UNDERLYING
CHAPTER XIII.  AS WAS SAID IN UNITED STATES V. AMERICAN TRUCKING
ASSNS., 310 U.S. 534, 543 (1940): 

"THERE IS, OF COURSE, NO MORE PERSUASIVE EVIDENCE OF THE PURPOSE OF A
STATUTE THAN THE WORDS BY WHICH THE LEGISLATURE UNDERTOOK TO GIVE
EXPRESSION TO ITS WISHES.  OFTEN THESE WORDS ARE SUFFICIENT IN AND OF
THEMSELVES TO DETERMINE THE PURPOSE OF THE LEGISLATION.  IN SUCH CASES
WE HAVE FOLLOWED THEIR PLAIN MEANING.  WHEN THAT MEANING HAS LED TO
ABSURD OR FUTILE RESULTS, HOWEVER, THIS COURT HAS LOOKED BEYOND THE
WORDS TO THE PURPOSE OF THE ACT.  FREQUENTLY, HOWEVER, EVEN WHEN THE
PLAIN MEANING DID NOT PRODUCE ABSURD RESULTS BUT MERELY AN UNREASONABLE
ONE 'PLAINLY AT VARIANCE WITH THE POLICY OF THE LEGISLATION AS A WHOLE'
THIS COURT HAS FOLLOWED THAT PURPOSE, RATHER THAN THE LITERAL WORDS." 

BUT SUCH A LITERAL READING IS NOT APPARENT IN THIS CASE.  SECTION
656(A)(3) DOES NOT, ON ITS FACE, STATE THAT A COURT MAY CONFIRM AN
EXTENSION PLAN ONLY IF THE DEBTOR IS ELIGIBLE FOR A DISCHARGE IN
BANKRUPTCY.  RATHER, THE LANGUAGE OF THE SECTION SPEAKS, AMBIGUOUSLY,
OF "GUILTY" ACTS AND UNFULFILLED DUTIES.  THERE IS, OF COURSE, NO
UNFULFILLED DUTY INVOLVED IN SEC 14(C)(5).  MOREOVER, A PRIOR
BANKRUPTCY IS HARDLY A "GUILTY" ACT WITHIN THE USUAL MEANING OF THAT
WORD, AND ITS USE AS A REFERENCE TO SEC 14(C)(5) IS STRAINED INDEED. 
IN FACT, THE LEGISLATIVE HISTORY OF SEC 14(C) LENDS SOME SUPPORT TO A
VIEW THAT A PRIOR DISCHARGE IS NOT A "GUILTY" ACT.  IN 1903, WHEN THE
FORERUNNERS OF SUBDIVISIONS (3) THROUGH (6) WERE ORIGINALLY ADDED TO
SEC 14(C), THE HOUSE REPORT STATED: 

"THIS AMENDMENT ALSO PROVIDES FOUR ADDITIONAL GROUNDS FOR REFUSING A
DISCHARGE IN BANKRUPTCY:  (1) OBTAINING PROPERTY ON CREDIT ON
MATERIALLY FALSE STATEMENTS; (2) MAKING A FRAUDULENT TRANSFER OF
PROPERTY; (3) HAVING BEEN GRANTED OR DENIED A DISCHARGE IN BANKRUPTCY
WITHIN SIX YEARS, AND (4) HAVING REFUSED TO OBEY THE LAWFUL ORDERS OF
THE COURT OR HAVING REFUSED TO ANSWER MATERIAL QUESTIONS APPROVED BY
THE COURT.  NO PERSON WHO HAS BEEN GUILTY OF ANY OF THESE FRAUDULENT
ACTS SHOULD BE DISCHARGED, AND A PERSON WHO HAS REFUSED TO OBEY THE
ORDER OF THE COURT OUGHT NOT TO BE DISCHARGED, AND IT IS QUITE CLEAR
THAT NO PERSON SHOULD HAVE THE BENEFIT OF THE ACT AS A VOLUNTARY
BANKRUPT OFTENER THAN ONCE IN SIX YEARS."  H.R. REP. NO. 1698, 57TH
CONG., 1ST SESS., 2 (1902). 

THIS LANGUAGE MIGHT BE CONSTRUED TO SET APART ACTS WHICH ARE CRIMINAL
OR REPREHENSIBLE IN NATURE AND TO CONSIDER A PRIOR BANKRUPTCY TO BE
SOMETHING OTHER THAN A "GUILTY" ACT.  BUT WE NEED NOT, AND DO NOT, GO
SO FAR AS TO PLACE THIS INTERPRETATION ON THE WORDS "GUILTY ACTS."  IT
SUFFICES THAT WE FIND IN THEM SUFFICIENT AMBIGUITY TO IMPEL RECOURSE TO
THE LEGISLATIVE PURPOSES, OUTLINED ABOVE, UNDERLYING SEC 14(C)(5).  AND
WHILE THE IDENTICAL LANGUAGE OF SEC 656(A)(3) HAS BEEN A PART OF THE
BANKRUPTCY ACT SINCE 1898, AS A RESTRICTION TO CONFIRMATION OF
COMPOSITIONS UNDER WHAT IS NOW SEC 366(3), 52 STAT. 911, AS AMENDED, 11
U.S.C. SEC 766(3) AND SEC 472(3), 52 STAT. 923, AS AMENDED, 11 U.S.C.
SEC 872(3), THERE IS NO INDICATION THAT ITS ENACTMENT IN CHAPTER XIII
WAS INTENDED TO BAR CONFIRMATION OF WAGE-EARNER EXTENSIONS.  INDEED, IT
WOULD SEEM THAT THE ABSENCE OF ANY LEGISLATIVE HISTORY BEARING ON THE
ADOPTION OF THIS PROVISION IN CHAPTER XIII INDICATES THAT ITS INCLUSION
WAS A LEGISLATIVE OVERSIGHT, (FN7) AT LEAST INSOFAR AS IT BEARS ON WAGE
EARNERS' EXTENSION PLANS. 

THIS OVERSIGHT IS, OF COURSE, CURED BY THE PROVISIONS OF SEC 602,
WHICH FURTHER BUTTRESS OUR CONCLUSION.  THAT SECTION DIRECTS THAT THE
PROVISIONS OF CHAPTERS I THROUGH VII, WHICH INCLUDE SEC 14(C)(5), ARE
INCORPORATED INTO CHAPTER XIII ONLY "INSOFAR AS THEY ARE NOT
INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS CHAPTER."  THE
RATIONALE OF SEC 14(C)(5) - THE PREVENTION OF RECURRENT AVOIDANCE OF
DEBTS - IS SO INCONSISTENT WITH THE AIMS OF EXTENSION PLANS AS TO FALL
SQUARELY WITHIN THE EXCEPTION OF SEC 602. 

IT IS CLAIMED, HOWEVER, THAT SEC 686(5) OF CHAPTER XIII, 11 U.S.C.
SEC 1086(5), INDICATES A CONTRARY RESULT.  WE THINK NOT.  THIS
PROVISION, IN SETTING THE EFFECTIVE DATE OF THE CHAPTER, PROVIDES THAT
CONFIRMATIONS THEREUNDER "SHALL NOT BE REFUSED BECAUSE OF A DISCHARGE
GRANTED OR A COMPOSITION CONFIRMED PRIOR TO THE EFFECTIVE DATE OF THIS
AMENDATORY ACT."  IT MUST BE REMEMBERED THAT EXTENSION-PLAN RELIEF OF
CHAPTER XIII WAS NOVEL TO THE LAW OF BANKRUPTCY.  HOWEVER, BOTH
COMPOSITIONS AND STRAIGHT BANKRUPTCIES WERE OLD ON THE BOOKS.  THE
CONGRESS, WE BELIEVE, WAS ONLY MAKING CERTAIN, INSOFAR AS EXTENSIONS
WERE CONCERNED, THAT THE OLD PROCEDURES WOULD NOT AFFECT THE NEW.  THIS
WOULD BE CONSISTENT WITH THE PURPOSE OF THE CONGRESS NOT TO MAKE SEC
14(C)(5) APPLICABLE TO CONFIRMATIONS IN EXTENSION-PLAN CASES.  RATHER
THAN MAKING AN ILLOGICAL EXEMPTION FROM THE SIX-YEAR BAR, GIVEN IN
CASES WHERE A DISCHARGE HAD BEEN RECEIVED BEFORE - BUT NOT AFTER - THE
NEW ACT, SEC 686(5) MERELY GAVE EXPANSIVE EFFECT TO THE CONGRESSIONAL
PURPOSE BY MAKING IT CLEAR THAT THE REMEDY AFFORDED BE AVAILABLE
RETROACTIVELY AS WELL AS PROSPECTIVELY. 

WE EMPHASIZE THAT OUR CONSTRUCTION OF THE ACT DOES NOT PRECLUDE
APPLICATION OF SEC 14(C)(5) TO CONFIRMATIONS OF GENERAL ARRANGEMENTS
UNDER CHAPTER XI OR TO REAL PROPERTY ARRANGEMENTS UNDER CHAPTER XII. 
IT IS TRUE THAT RESTRICTIONS IDENTICAL IN PHRASING TO SEC 656(A)(3)
APPEAR BOTH IN CHAPTER XI, SEC 366, AND IN CHAPTER XII, SEC 472(3). 
THE RELIEF AFFORDED IN THOSE CHAPTERS, HOWEVER, REPRESENTS A WHOLLY
DIFFERENT STATUTORY SCHEME FROM WAGE-EARNERS' EXTENSIONS, AND THE
RESTRICTIVE PROVISIONS ARE NOT, THEREFORE, IN PARI MATERIA.  SECTIONS
366(3) AND 472(3) NEITHER IMPART TO NOR RECEIVE FROM SEC 656(A)(3) A
MEANINGFUL EFFECT.  NOR DOES OUR CONSTRUCTION IMPLY AN IMMUNITY FROM
THE SIX-YEAR BAR TO THOSE SEEKING CONFIRMATION OF WAGE-EARNER
COMPOSITIONS.  A COMPOSITION UNDER CHAPTER XIII, UNLIKE AN EXTENSION,
IS CLOSELY AKIN TO STRAIGHT BANKRUPTCY AND TO PROCEEDINGS UNDER
CHAPTERS XI AND XII, FOR UNDER SUCH A PLAN THE DEBTOR IS DISCHARGED
FROM HIS DEBTS AND CLAIMS OF THE CREDITORS ARE ONLY PARTIALLY PAID.  IN
RE JENSEN, 200 F.2D 58 (1952), CERT. DENIED, 345 U.S. 926 (1953), BUT
SEE IN RE GOLDBERG, 53 F.2D 454 (1931).  IT IS BOTH LOGICAL AND
CONSISTENT WITH THE UNDERLYING PURPOSES OF SEC 14(C)(5) THAT
CONFIRMATION OF WAGE-EARNER COMPOSITIONS BE BARRED BY PRIOR BANKRUPTCY,
SINCE REPEATED USE OF SUCH PLANS WOULD, IN EFFECT, PROVIDE AN
OPPORTUNITY FOR ABUSE OF THE ACT. 

IT HAS BEEN ARGUED THAT EXTENSION PLANS DO NOT COMPLETELY AVOID THE
POSSIBILITY OF ADJUSTING THE WAGE EARNER'S DEBTS.  IT IS TRUE THAT SEC
660 PROVIDES FOR DISCHARGE AFTER COMPLIANCE WITH THE PROVISIONS OF A
CHAPTER XIII PLAN.  WHILE THIS SECTION APPLIES TO WAGE-EARNER
COMPOSITIONS AS WELL AS TO EXTENSIONS, A "DISCHARGE" THEREUNDER HAS A
WHOLLY DIFFERENT IMPACT WHERE AN EXTENSION IS INVOLVED.  IN THE LATTER
CASE A DISCHARGE IS LITTLE MORE THAN A MERE FORMALITY.  IT IS ALSO
CLAIMED THAT SEC 661 PRESENTS A SOMEWHAT MORE TROUBLESOME OBJECTION. 
THAT SECTION AS WE HAVE NOTED MAY ALLOW A WAGE EARNER TO OBTAIN A
RELEASE FROM ALL DISCHARGEABLE DEBTS IF, AFTER NOTICE AND HEARING, THE
COURT IS SATISFIED THAT THE FAILURE OF THE DEBTOR TO COMPLY WITH THE
PLAN WAS DUE TO CIRCUMSTANCES FOR WHICH HE COULD NOT BE HELD JUSTLY
ACCOUNTABLE.  HOWEVER, WE SEE NO SERIOUS PROBLEMS IN THIS SECTION. 
FIRST, EXPERIENCE HAS SHOWN THAT ALMOST ALL PLANS APPROVED UNDER THE
ACT ENVISION REPAYMENT WITHIN THREE YEARS.  THE PROBLEM, THEREFORE, IS
NOT LIKELY TO ARISE.  SECOND, THERE ARE ADEQUATE PROVISIONS FOR NOTICE
AND HEARING PRIOR TO A DISCHARGE UNDER SEC 661.  OBJECTING CREDITORS
MAY RAISE SEC 14(C)(5) AS A BAR TO RELIEF IF AND WHEN THE DEBTOR SEEKS
SUCH RELIEF.  A REQUEST FOR RELIEF UNDER SEC 661 WOULD, IN EFFECT,
CONSTITUTE AN ATTEMPT TO TRANSPOSE AN EXTENSION PLAN INTO A
COMPOSITION, AND A GRANT OF RELIEF THEREUNDER WOULD, AT THAT TIME, BE
TANTAMOUNT TO A CONFIRMATION OF A COMPOSITION.  THE SIX-YEAR BAR WOULD,
THEREFORE, BE OPERATIVE IN SUCH A SITUATION.   IN VIEW OF THIS, AS WELL
AS THE POWER OF THE COURT TO MAKE CERTAIN THAT THE PROVISIONS OF THE
CHAPTER ARE NOT ABUSED, WE SEE NO REASON TO ALLOW THIS SECTION ALONE TO
DESTROY THE BENEFICIAL PURPOSES OF ENACTMENT.  (FN8) 

FOR THE FOREGOING REASONS, WE CONDLUDE THAT PETITIONER'S PLAN SHOULD
HAVE BEEN CONFIRMED.  REVERSED AND REMANDED. 

FN1  ALL U.S.C. CITATIONS HEREIN REFER TO THE 1964 EDITION. 

FN2  52 STAT. 850 (1938), AS AMENDED, 11 U.S.C. SEC 32(C)(5): 

"(C)  THE COURT SHALL GRANT THE DISCHARGE IN BANKRUPTCY UNLESS
SATISFIED THAT THE BANKRUPT HAS ...  (5) IN A PROCEEDING UNDER THIS
TITLE COMMENCED WITHIN SIX YEARS PRIOR TO THE DATE OF THE FILING OF THE
PETITION IN BANKRUPTCY  ...  BEEN GRANTED A DISCHARGE, OR HAD A
COMPOSITION OR AN ARRANGEMENT BY WAY OF COMPOSITION OR A WAGE EARNER'S
PLAN BY WAY OF COMPOSITION CONFIRMED UNDER THIS TITLE  ... ."  11
U.S.C. SEC 32(C)(5). 

FN3  COMPARE IN RE SCHLAGETER, 319 F.2D 821 (C.A. 3D CIR. 1963), AND
PERRY V. COMMERCE LOAN CO., 340 F.2D 588, WITH EDINS V. HELZBERG'S
DIAMOND SHOPS, INC., 315 F.2D 223 (C.A. 10TH CIR. 1963), AND IN RE
MAHALEY, 187 F. SUPP. 229 (D.C.S.D. CAL. 1960).  SEE ALSO IN RE
MAYORGA, 355 F.2D 89 (C.A. 9TH CIR. 1966). 

FN4  CHAPTER XIII ALSO PROVIDES FOR WAGE-EARNER PLANS BY WAY OF
COMPOSITION.  COMPOSITIONS UNDER THAT CHAPTER, HOWEVER, ARE ALMOST
INSIGNIFICANT IN THE OPERATION OF WAGE-EARNER PLANS BECAUSE MOST
CREDITORS WILL NOT GIVE THE NECESSARY APPROVAL.  THE LATEST PUBLISHED
STATISTICS SHOW THAT 95% OF THE FUNDS PAID TO CREDITORS UNDER CHAPTER
XIII PROCEEDINGS DERIVE FROM EXTENSIONS RATHER THAN COMPOSITIONS. 
ADMINSTRATIVE OFFICE OF THE UNITED STATES COURTS, TABLES OF BANKRUPTCY
STATISTICS, TABLE F 11 (1964)(BY COMPUTATION). 

FN5  11 U.S.C. SEC 1002:  "THE PROVISIONS OF CHAPTERS 1-7 OF THIS
TITLE SHALL, INSOFAR AS THEY ARE NOT INCONSISTENT OR IN CONFLICT WITH
THE PROVISIONS OF THIS CHAPTER, APPLY IN PROCEEDINGS UNDER THIS CHAPTER
...  ." 

FN6  SUCH A COLLISION UNDOUBTEDLY AFFECTS THE FUNCTIONING OF THE
ACT.  THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS REPORTS
THAT A "PRONOUNCED DROP IN CHAPTER XIII FILINGS" HAS BEEN NOTED IN THE
DISTRICTS IN THE SIXTH CIRCUIT AS A RESULT OF THE HOLDING IN PERRY. 
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MEMORANDUM FOR THE
COMMITTEE ON BANKRUPTCY ADMINISTRATION OF THE JUDICIAL CONFERENCE OF
THE UNITED STATES, REPORT ON THE USE OF CHAPTER XIII, P. 2 (JUNE 22,
1965). 

FN7  THIS IS NOT THE ONLY EXAMPLE OF DRAFTING OVERSIGHTS IN THE ACT. 
ALTHOUGH SEC 14(C)(5) WAS AMENDED IN 1938 TO INCLUDE A REFERENCE TO
WAGE-EARNER COMPOSITIONS, THE PROVISION IN THAT SECTION RELATING TO
CONFIRMATION OF A COMPOSITION WAS NOT DELETED EVEN THOUGH SEC 12 OF THE
1898 ACT, 30 STAT. 549, UNDER WHICH SUCH A COMPOSITION MIGHT HAVE BEEN
CONFIRMED, WAS REPEALED IN THE SAME ENACTMENT. 

FN8  WE NOTE THAT THE NATIONAL BANKRUPTCY CONFERENCE HAS PROPOSED
AMENDMENTS TO THE ACT WHICH ARE INTENDED TO CLARIFY THE
INTERRELATIONSHIP OF SECS 14(C)(5), 656(A)(3), AND 661.  THE PROPOSED
CLARIFICATION IS IN ACCORD WITH OUR CONSTRUCTION OF THE ACT.  SEE H.R.
20, 89TH CONG., 1ST SESS. (1965).  THE JUDICIAL CONFERENCE, UPON
REQUEST OF THE CONGRESS, HAS SUBMITTED ITS VIEWS APPROVING THE BILL. 
LETTER FROM THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED
STATES COURTS TO THE CHAIRMAN OF THE COMMITTEE ON THE JUDICIARY, HOUSE
OF REPRESENTATIVES (SEPTEMBER 29, 1965).  SEE ALSO REPORT OF THE
PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, AT 68
(SEPTEMBER 22-23, 1965). 

MR. JUSTICE HARLAN, DISSENTING. 

THE RESULT REACHED BY THE COURT MAY WELL BE DESIRABLE, BUT IN MY
OPINION IT IS ONE THAT CANNOT BE ATTAINED UNDER THE PRESENT STATUTE
WITHIN THE PROPER LIMITS OF THE JUDICIAL FUNCTION. 

CHAPTER XIII OF THE BANKRUPTCY ACT ESTABLISHES PROCEDURES FOR THE
RELIEF OF WAGE EARNERS WHO ARE UNABLE TO MEET THEIR DEBTS AS THEY
MATURE.  TWO TYPES OF PROCEDURES ARE MADE AVAILABLE:  EXTENSION PLANS
UNDER WHICH THE WAGE EARNER'S DEBTS ARE INTENDED TO BE PAID OFF IN FULL
OVER A PERIOD OF TIME, AND COMPOSITION PLANS UNDER WHICH ONLY A
PERCENTAGE OF DEBTS ARE INTENDED TO BE PAID OFF IN FULL OVER A PERIOD
OF TIME, AND COMPOSITION PLANS UNDER WHICH ONLY A PERCENTAGE OF DEBTS
ARE RECOVERABLE.   REFERRING TO BOTH TYPES OF PLANS, SEC 656 OF THE
BANKRUPTCY ACT, 11 U.S.C. SEC 1056 (1964 ED.), PROVIDES THAT "A PLAN"
SHALL NOT BE CONFIRMED IF THE DEBTOR HAS "BEEN GUILTY OF ANY OF THE
ACTS OR FAILED TO PERFORM ANY OF THE DUTIES WHICH WOULD BE A BAR TO THE
DISCHARGE OF THE BANKRUPT  ...  ."  TO ASCERTAIN WHAT WOULD BE A BAR TO
THE DISCHARGE OF A BANKRUPT ONE MUST TURN TO SEC 14 (C), 11 U.S.C. SEC
32(C) (1964 ED.), WHICH PROVIDES, AMONG OTHER THINGS, THAT NO DISCHARGE
MAY BE GRANTED IF THE BANKRUPT HAS BEEN GRANTED A PREVIOUS DISCHARGE
WITHIN SIX YEARS.  SEC 14(C)(5).  IT IS UNDISPUTED THAT PETITIONER HERE
WAS SO DISCHARGED, AND THERE IS NO QUESTION BUT THAT HE WOULD HAVE BEEN
REFUSED ANOTHER DISCHARGE IN BANKRUPTCY AT THE TIME HE APPLIED FOR THIS
EXTENSION PLAN.  THE STATUTORY SCHEME THUS PLAINLY SEEMS TO BAR HIM
FROM OBTAINING CHAPTER XIII RELIEF AS WELL. 

THE PROCESS BY WHICH THE COURT HAS UNDERTAKEN TO RELEASE THE DEBTOR
FROM THE IMPACT OF THESE STRAIGHTFORWARD STATUTORY PROVISIONS SEEMS TO
ME WHOLLY UNAVAILING.  THE COURT'S MAJOR ARGUMENT IS BUILT UPON ITS
READING OF THE WORD "GUILTY" IN SEC 656(A)(3).  AS ALREADY NOTED THAT
"GUILTY" OF ANY ACT THAT WOULD BAR A DISCHARGE IN BANKRUPTCY.  THE
ARGUMENT IS THAT SINCE RECEIVING A PRIOR DISCHARGE IS NEITHER UNLAWFUL
NOR MORALLY REPREHENSIBLE ONE CANNOT BE "GUILTY" OF IT, AND HENCE THAT
THE SIX-YEAR "DISCHARGE" PROVISION CANNOT BE A BAR TO A CHAPTER XIII
EXTENSION PLAN. 

THIS ARGUMENT PRESUPPOSES THAT THE WORD "GUILTY" WAS INTENTIONALLY
USED IN SEC 656 IN A DISCRIMINATING SENSE, THAT IS, TO DISTINGUISH
AMONG THOSE ACTS CATALOGUED IN SEC 14(C) WHICH UNDER SEC 656 WOULD BAR
CONFIRMATION OF AN EXTENSION PLAN.  THE FACT OF THE MATTER IS, HOWEVER,
THAT WHEN CONGRESS IN 1938 ENACTED CHAPTER XIII, 52 STAT. 930-938, IT
TOOK AS ITS MODEL THE FORM AND LANGUAGE OF THE PRIOR BANKRUPTCY ACT,
MORE SPECIFICALLY SEC 12D, 30 STAT. 550, DEALING WITH COMPOSITIONS. 
(FN1)  THE "GUILTY" PHRASE WAS APPROPRIATE IN THAT 1898 STATUTE BECAUSE
AT THAT TIME THE ONLY BARS TO A DISCHARGE IN THE PREDECESSOR OF SEC
14(C) WERE OFFENSES PUNISHABLE BY IMPRISONMENT OR FRAUDULENT
CONCEALMENT.  SECTION 14B, 30 STAT. 550.  IN 1903, CONGRESS AMENDED SEC
14B TO INCLUDE THE SIX-YEAR BAR, 32 STAT. 797, AND OVER THE YEARS OTHER
GROUNDS FOR REFUSING CONFIRMATION HAVE BEEN ADDED TO THAT SECTION.  BUT
THE WORD "GUILTY" WAS NEVER CHANGED AND HAS OBVIOUSLY REMAINED IN
SEVERAL CHAPTERS OF THE ACT MERELY AS A SHORTHAND WAY OF REFERRING BACK
TO THOSE ITEMS THAT PRECLUDE THE GRANTING OF A DISCHARGE.  THUS,
CHAPTER XI OF THE BANKRUPTCY ACT, WHICH DEALS WITH ARRANGEMENTS, HAS
ALMOST AN EXACT DUPLICATE OF SEC 656(A)(3) CONTAINING THE SAME "GUILTY"
PHRASEOLOGY.  SEC 366(3), 11 U.S.C. SEC 766(3) (1964 ED.).  CHAPTER
XII, WHICH DEALS WITH REAL PROPERTY ARRANGEMENTS, CONTAINS A SIMILAR
PROVISION.  SEC 472(3), 11 U.S.C. SEC 872(3) (1964 ED.).  AND OF COURSE
CHAPTER XIII, DEALING WITH BOTH COMPOSITIONS AND EXTENSIONS FOR WAGE
EARNERS, USES THIS LANGUAGE.  THESE PARALLEL PROVISIONS ALL DERIVE FROM
THE SAME SECTION FRAMED IN 1898. 

THIS HISTORY AND THIS PARALLELISM INDUBITABLY DEMONSTRATE TWO THINGS:
FIRST, THAT THE CONGRESS DID NOT DEVISE THE "GUILTY" TERMINOLOGY IN
1938 AS A MEANS OF MAKING A SUBTLE DISTINCTION BETWEEN THE MORALLY
REPREHENSIBLE BARS TO BANKRUPTCY CONTAINED IN SEC 14 (C) AND THE OTHER
BARS THERE ENUMERATED; AND SECOND, THAT THE WORD "GUILTY" MEANS THE
SAME THING WHEN APPLIED TO GENERAL ARRANGEMENTS IN SEC 366, TO REAL
PROPERTY ARRANGEMENTS IN SEC 472, AND TO COMPOSITIONS AND EXTENSIONS IN
SEC 656.  IF THE WORD "GUILTY" EXCLUDES THE SIX-YEAR BAR FOR EXTENSION
PLANS, IT IS IMPOSSIBLE TO SEE WHAT SORT OF STATUTORY INTERPRETATIVE
SLEIGHT OF HAND WOULD SAVE IT FOR GENERAL ARRANGEMENTS, REAL PROPERTY
ARRANGEMENTS, AND WAGE-EARNER COMPOSITION PLANS.  MOREOVER, IT SEEMS
ALREADY ACCEPTED THAT AS APPLIED TO CHAPTER XI ARRANGEMENTS, THE
"GUILTY" PROVISION DOES REFER BACK TO THE SIX-YEAR BAR.  SEE IN RE
JENSEN, 200 F.2D 58; 9 COLLIER, BANKRUPTCY PARA 9.19, AT 310-311 (14TH
ED. 1964); KENNEDY, HOSPITALITY FOR REPEATERS UNDER THE BANKRUPTCY ACT,
68 COM. L.J. 117, 119-120 (1963).  THE SAME WOULD APPEAR TO BE TRUE OF
THE MEANING OF "GUILTY" IN CHAPTER XII.  SEE 9 COLLIER, SUPRA, PARA
9.07, AT 1146.  AND THE COURT IN ITS PRESENT OPINION APPEARS TO CONCEDE
THAT WHEN APPLIED TO COMPOSITIONS, SEC 656 IS SOMEHOW TRANSFORMED TO
INCLUDE THE SIX-YEAR BAR.    IN SHORT, CONSTRUING "GUILTY" TO REFER
ONLY TO "REPREHENSIBLE" ASPECTS OF SEC 14(C) HAS NO BASIS IN
LEGISLATIVE HISTORY, AND REQUIRES A STRAINED ATTEMPT TO DISTINGUISH
OTHER APPLICATIONS OF THE IDENTICAL SECTION AND OF PARALLEL SECTIONS
WHICH CONCEDEDLY ARE APPLIED MORE GENERALLY.  BECAUSE OF ITS
RAMIFICATIONS, THIS CONSTRUCTION MAY DO SERIOUS HARM TO THE
ADMINISTRATION OF CHAPTER XIII COMPOSITIONS, CHAPTER XII REAL PROPERTY
ARRANGEMENTS, AND CHAPTER XI ARRANGEMENTS.    THE COURT ALSO ADVANCES
ANOTHER ARGUMENT IN SUPPORT OF ITS CONCLUSION THAT CONFIRMATION OF THIS
EXTENSION PLAN WAS NOT BARRED BY VIRTUE OF SECS 656 AND 14(C).  THIS
ARGUMENT RESTS ESSENTIALLY ON SEC 602 OF THE BANKRUPTCY ACT, 11 U.S.C.
SEC 1002 (1964 ED.).  SECTION 602 PROVIDES THAT THE PROVISIONS OF
CHAPTERS I THROUGH VII SHALL APPLY TO CHAPTER XIII "INSOFAR AS THEY ARE
NOT INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS CHAPTER
...  ."  IT SEEMS TO BE SAID THAT THE SIX-YEAR BAR IS INCONSISTENT WITH
THE PROVISIONS OF CHAPTER XIII BECAUSE THE EXTENSION PLAN IS DESIGNED
TO GIVE WAGE EARNERS RELIEF, AND THE SIX-YEAR BAR WOULD PRECLUDE SOME
SUCH PEOPLE FROM RECEIVING THAT RELIEF WITHOUT GOOD REASON. 

THIS ARGUMENT LIKEWISE DOES NOT WITHSTAND ANALYSIS.  TO BE SURE THE
SIX-YEAR BAR MAKES IT IMPOSSIBLE FOR CERTAIN WAGE EARNERS TO GET RELIEF
BY WAY OF EXTENSION PLANS, BUT SO DO ALL THE OTHER RESTRICTIONS ON THIS
FORM OF RELIEF.  NOBODY WOULD SUGGEST THAT IT IS "INCONSISTENT" WITH
CHAPTER XIII TO WITHHOLD EXTENSION-PLAN RELIEF FROM THOSE WHO ENGAGE IN
FRAUD ON THE GROUND THAT SUCH A RESTRICTION CUTS DOWN THE NUMBER OF
PEOPLE WHO CAN TAKE ADVANTAGE OF CHAPTER XIII.  SECTION 656 CLEARLY
DOES ESTABLISH RESTRICTIONS ON THE CLASS OF PEOPLE TO WHOM RELIEF IS
AVAILABLE; THE QUESTION BEFORE US IS WHETHER THE SIX-YEAR BAR IS SUCH A
LIMITATION; CITATION OF SEC 602 IS CONCLUSORY ONLY, AND MAKES NO
POSITIVE CONTRIBUTION TO A MEANINGFUL ANALYSIS. 

MY CONCLUSION THAT THE STATUTE SHOULD BE READ LITERALLY TO PRECLUDE
THE CONFIRMATION OF AN EXTENSION PLAN IF THE APPLICANT HAS BEEN GRANTED
A DISCHARGE WITHIN THE PREVIOUS SIX YEARS IS REINFORCED BY SEC 686(5)
OF CHAPTER XIII, 11 U.S.C. SEC 1086(5) (1964 ED.).  SECTION 686(5) IN
ITS ENTIRETY DECLARES THAT "CONFIRMATION OF A PLAN UNDER THIS CHAPTER
SHALL NOT BE REFUSED BECAUSE OF A DISCHARGE GRANTED OR A COMPOSITION
CONFIRMED PRIOR TO THE EFFECTIVE DATE OF THIS AMENDATORY ACT."  THE
INCLUSION OF THIS PROVISION INDICATES QUITE CLEARLY THAT CONGRESS DID
BELIEVE THAT A PRIOR DISCHARGE WOULD BE A BAR TO A CHAPTER XIII PLAN,
AND THAT IT DECIDED TO REMOVE THAT RESTRICTION ONLY FOR DISCHARGES
GRANTED BEFORE SEPTEMBER 22, 1938, THE EFFECTIVE DATE OF THE STATUTE IN
QUESTION.  SEE 10 COLLIER, SUPRA, PARA 33.05, AT 477.  SUCH A PROVISION
IS PERFECTLY UNDERSTANDABLE.  BEFORE THE ENACTMENT OF THE EXTENSION
PLAN AMENDMENT, WAGE EARNERS WHO SOUGHT A BANKRUPTCY REMEDY COULD
OBTAIN ONLY A DISCHARGE THROUGH STRAIGHT BANKRUPTCY OR COMPOSITION. 
THERE WOULD BE NO REASON TO PRECLUDE WAGE EARNERS WHO AVAILED
THEMSELVES OF SUCH RELIEF PRIOR TO SEPTEMBER 1938 FROM OBTAINING A MORE
FAVORABLE EXTENSION PLAN SUBSEQUENTLY.  ON THE OTHER HAND, AFTER
ENACTMENT OF CHAPTER XIII, WAGE EARNERS WOULD HAVE THE OPPORTUNITY TO
APPLY FOR AN EXTENSION PLAN.  IT IS NOT DIFFICULT TO UNDERSTAND WHY
CONGRESS SHOULD HAVE REFUSED TO PERMIT WAGE EARNERS WHO CHOSE A
DISCHARGE IN BANKRUPTCY RATHER THAN AN EXTENSION PLAN A SECOND
OPPORTUNITY, WITHIN SIX YEARS, TO RECEIVE STATUTORY RELIEF.  I AM FRANK
TO SAY THAT I AM UNABLE TO PERCEIVE THE BASIS FOR THE COURT'S CONTRARY
EXPLANATION OF THIS PROVISION. 

THE SHORT OF THE MATTER IS THAT THE COURT'S ARGUMENTS DO NOT SUPPORT
THE CONCLUSION IT REACHES.  THE CONCLUSION IS OF COURSE SUPPORTABLE AS
A LEGISLATIVE JUDGMENT, EVEN THOUGH ARGUMENTS CAN BE MADE FOR BOTH
SIDES.  THUS, IT MIGHT BE ARGUED FOR THE SIX-YEAR BAR IN A CHAPTER XIII
CONTEXT SOMEWHAT AS FOLLOWS:  THE WAGE-EARNER EXTENSION PLAN IS A NEW
AND VERY ADVANTAGEOUS PROCEDURE FOR THE DEBTOR, BUT IT IS A BURDEN ON
THE COURTS.  IT IS ALSO A CONSTRAINT ON CREDITORS WHO WILL BE DELAYED
IN COLLECTING, WILL BE PRECLUDED FROM GARNISHING, AND MAY NOT RECEIVE
FULL REPAYMENT IF THE DEBTOR OBTAINS A DISCHARGE UNDER SEC 661 OF THE
ACT, 11 U.S.C. SEC 1061 (1964 ED.).  IT IS THEREFORE REASONABLE TO
LIMIT THE AVAILABILITY OF THIS KIND OF RELIEF TO THOSE WAGE EARNERS WHO
HAVE NOT HAD THE ADVANTAGE OF A DISCHARGE IN BANKRUPTCY IN THE PREVIOUS
SIX YEARS.  FURTHERMORE, IT IS CERTAINLY ARGUABLE THAT THE SIX-YEAR BAR
ENCOURAGES WAGE EARNERS TO MAKE USE OF THE CHAPTER XIII PROCEDURE. 
WITH THE PRIOR-DISCHARGE BAR ELIMINATED, A DEBTOR MIGHT ESCHEW AN
EXTENSION PLAN AND DECIDE INSTEAD TO GO THROUGH STRAIGHT BANKRUPTCY
FIRST, WAITING A FEW MONTHS UNTIL THE GOING ONCE AGAIN "GETS TOUGH" TO
TAKE ADVANTAGE OF THE EXTENSION PLAN. 

I VENTURE CONSIDERATIONS SUCH AS THESE NOT AS OVERCOMING THE
COUNTERVAILING ONES RELIED ON BY THE COURT, AND HERETOFORE ESPOUSED BY
OTHERS, (FN2) BUT SIMPLY TO POINT UP THE FACT THAT THIS IS NOT ONE OF
THOSE CASES WHERE SEEMINGLY STRAIGHTFORWARD STATUTORY LANGUAGE MUST
YIELD ITS LITERAL MEANING TO A CONTRARY CONGRESSIONAL INTENT.  WHAT WE
HAVE HERE ARE BUT TWO CONTRASTING LEGISLATIVE POLICIES, WHEREIN THE
COURT'S DUTY IS TO TAKE THE STATUTE AS IT IS PRESENTLY PLAINLY
WRITTEN. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  "THE JUDGE SHALL CONFIRM A COMPOSITION IF SATISFIED THAT (1) IT
IS FOR THE BEST INTERESTS OF THE CREDITORS; (2) THE BANKRUPT HAS NOT
BEEN GUILTY OF ANY OF THE ACTS OR FAILED TO PERFORM ANY OF THE DUTIES
WHICH WOULD BE A BAR TO HIS DISCHARGE  ...  ."  SEC 12D, 30 STAT. 550. 

FN2  SEE THE PROPOSED AMENDMENTS OF THE BANKRUPTCY ACT BY THE
NATIONAL BANKRUPTCY CONFERENCE, NOT 8, ANTE, P. 404; KENNEDY,
HOSPITALITY FOR REPEATERS UNDER THE BANKRUPTCY ACT, 68 COM. L.J. 117
(1963). 
..END :

















CIESIELSKI V. OHIO 383 U.S. 411 


NO. 920.  DECIDED MARCH 7, 1966 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CIESIELSKI V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















UNITED TRANSPORTS INC. V. UNITED STATES 383 U.S. 411 


NO. 868.  DECIDED MARCH 7, 1966.  - 245 F. SUPP. 561, 570, AFFIRMED. 


UNITED TRANSPORTS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENTS ARE AFFIRMED. 
..END :


















SOCIEDAD DE MARIO MERCADO E HIJOS V. PUERTO RICO 383 U.S. 412 


NO. 786.  DECIDED MARCH 7, 1966 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


SOCIEDAD DE MARIO MERCADO E HIJOS V. PUERTO RICO. 

APPEAL FROM THE SUPREME COURT OF PUERTO RICO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













CARNATION CO. V. PACIFIC CONFERENCE 383 U.S. 213 


NO. 20.  ARGUED NOVEMBER 8, 1965.  - DECIDED FEBRUARY 28, 1966.  - 336
F.2D 650, REVERSED AND REMANDED. 


PETITIONER SHIPS EVAPORATED MILK FROM WEST COAST PORTS TO THE
PHILIPPINES.  RESPONDENT CONFERENCES ARE ASSOCIATIONS OF SHIPPING
COMPANIES THAT ESTABLISH RATES FOR THEIR MEMBERS PURSUANT TO AGREEMENTS
APPROVED BY THE FEDERAL MARITIME COMMISSION (FMC).  PACIFIC WESTBOUND
CONFERENCE IS COMPOSED OF COMPANIES OPERATING BETWEEN THE WEST COAST
AND THE FAR EAST, AND THE FAR EAST CONFERENCE OF COMPANIES OPERATING
BETWEEN THE ATLANTIC AND GULF COASTS AND THE FAR EAST.  IN 1957 PACIFIC
WESTBOUND ANNOUNCED A RATE INCREASE FOR EVAPORATED MILK GOING TO THE
PHILIPPINES.  PETITIONER TRIED TO GET THE ORIGINAL RATE RESTORED, BUT
THE INCREASE REMAINED UNTIL 1962.  THEREAFTER PETITIONER FILED AN
ANTITRUST TREBLE-DAMAGE ACTION AGAINST THE CONFERENCES AND THEIR
MEMBERS, ALLEGING THAT THE INCREASE WAS INITIATED AND MAINTAINED TO
IMPLEMENT RATE-MAKING AGREEMENTS BETWEEN THE TWO CONFERENCES WHICH HAD
NOT BEEN APPROVED BY THE FMC AND THAT PACIFIC WESTBOUND REFUSED TO
RESTORE THE ORIGINAL RATE ONLY BECAUSE THE FAR EAST CONFERENCE WOULD
NOT AGREE.  PETITIONER CLAIMED TREBLE DAMAGES BECAUSE THE
IMPLEMENTATION OF SUCH UNAPPROVED AGREEMENTS IS UNLAWFUL PER SE UNDER
THE ANTITRUST LAWS.  RESPONDENTS MOVED TO DISMISS ON THE GROUND THAT
THE SHIPPING ACT, 1916 REPEALED ALL ANTITRUST REGULATION OF THE RATE
MAKING ACTIVITIES OF THE SHIPPING INDUSTRY.  THE DISTRICT COURT GRANTED
THE MOTION.  THE COURT OF APPEALS AFFIRMED ON THE GROUND THAT SUCH
ACTION CANNOT BE MAINTAINED UNTIL THE FMC HAS PASSED ON THE
AGREEMENTS.  AFTER CERTIORARI WAS GRANTED THE FMC COMPLETED AN
INVESTIGATION OF RESPONDENTS' ACTIVITIES AND CONCLUDED THAT ITS
APPROVAL OF A 1952 AGREEMENT BETWEEN THE TWO CONFERENCES DID NOT COVER
THE IMPLEMENTATION OF SUBSEQUENT UNAPPROVED AGREEMENTS WHICH ARE THE
BASIS OF PETITIONER'S TREBLE-DAMAGE COMPLAINT.  HELD: THE
IMPLEMENTATION OF RATE-MAKING AGREEMENTS WHICH HAVE NOT BEEN APPROVED
BY THE FMC IS SUBJECT TO THE ANTITRUST LAWS.  PP. 216-224. 

(A)  CREATION OF AN ANTITRUST EXEMPTION UNDER SEC. 15 OF THE SHIPPING
ACT FOR RATE-MAKING ACTIVITIES LAWFUL UNDER THE ACT IMPLIES THAT
UNLAWFUL RATE-MAKING ACTIVITIES ARE NOT EXEMPT.  UNITED STATES V.
BORDEN CO., 308 U.S. 188, 201.  PP. 216-217. 

(B) THE SHIPPING ACT WAS NOT INTENDED TO REMOVE ALL ANTITRUST
REGULATION OF THE SHIPPING INDUSTRY'S RATE-MAKING ACTIVITIES.  PP. 217
220. 

(C)  THE DECISIONS IN UNITED STATES NAVIGATION CO. V. CUNARD
STEAMSHIP CO., 284 U.S. 474, AND FAR EAST CONFERENCE V. UNITED STATES,
342 U.S. 570, HOLDING THAT COURTS MUST REFRAIN FROM IMPOSING ANTITRUST
SANCTIONS FOR ACTIVITIES OF DEBATABLE LEGALITY UNDER THE ACT TO AVOID
THE POSSIBILITY OF CONFLICT BETWEEN THE COURTS AND THE FMC, WHILE
PRECLUDING THE COURTS FROM AWARDING TREBLE DAMAGES FOR CONDUCT ARGUABLY
LAWFUL UNDER THE ACT, DO NOT REQUIRE THAT THE SHIPPING INDUSTRY BE
TOTALLY IMMUNIZED FROM ANTITRUST REGULATION.  PP. 220-222. 

(D)  ALTHOUGH THE COURT OF APPEALS THOUGHT RESPONDENTS' ACTIVITIES
WERE ARGUABLY LAWFUL UNDER THE ACT, IT SHOULD HAVE STAYED THE ACTION
INSTEAD OF DISMISSING IT SINCE THE STATUTE OF LIMITATIONS MIGHT BAR
PETITIONER'S CLAIMS BEFORE THE FMC RULED.  PP. 222-223. 

(E)  PETITIONER'S FAILURE TO SEEK REPARATIONS UNDER THE ACT IN THE
FMC PROCEEDING DOES NOT AFFECT ITS RIGHTS UNDER THE ANTITRUST LAWS,
WHICH ARE COLLATERAL TO THOSE WHICH IT MIGHT HAVE SOUGHT UNDER THE
SHIPPING ACT.  P. 224. 

(F)  THE CASE IS REMANDED WITH INSTRUCTIONS TO PROCEED ONLY AFTER THE
FINAL OUTCOME OF THE SHIPPING ACT PROCEEDINGS.  P. 224. 

CARNATION CO. V. PACIFIC WESTBOUND CONFERENCE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE IN ORDER TO DETERMINE WHETHER THE
SHIPPING ACT, 1916, 39 STAT. 728, AS AMENDED, 75 STAT. 762, 46 U.S.C.
SECS. 801-842 (1964 ED.), PRECLUDES THE APPLICATION OF THE ANTITRUST
LAWS TO THE SHIPPING INDUSTRY. 

THE PETITIONER IN THIS CASE IS A SHIPPER IN FOREIGN COMMERCE THAT
SHIPS SUBSTANTIAL QUANTITIES OF EVAPORATED MILK FROM THE WEST COAST OF
THE UNITED STATES TO THE PHILIPPINE ISLANDS.  THE RESPONDENT
CONFERENCES ARE ASSOCIATIONS OF SHIPPING COMPANIES THAT ESTABLISH RATES
FOR THEIR RESPECTIVE MEMBERS PURSUANT TO AGREEMENTS APPROVED BY THE
FEDERAL MARITIME COMMISSION.  PACIFIC WESTBOUND CONFERENCE IS COMPOSED
OF COMPANIES OPERATING BETWEEN THE WEST COAST AND THE FAR EAST; FAR
EAST CONFERENCE, OF COMPANIES OPERATING BETWEEN THE ATLANTIC AND GULF
COASTS AND THE FAR EAST. 

IN 1957, PACIFIC WESTBOUND ANNOUNCED A RATE INCREASE OF $2.50 PER TON
FOR THE SHIPMENT OF EVAPORATED MILK TO THE PHILIPPINE ISLANDS. 
PETITIONER ATTEMPTED TO PERSUADE PACIFIC WESTBOUND TO RESTORE THE
ORIGINAL RATE, BUT PACIFIC WESTBOUND DECLINED TO DO SO UNTIL 1962. 

PETITIONER FILED AN ANTITRUST TREBLE-DAMAGE ACTION AGAINST THE
RESPONDENT CONFERENCES AND THEIR RESPECTIVE MEMBERS SHORTLY AFTER THE
ORIGINAL RATE WAS RESTORED.  PETITIONER ALLEGED THAT PACIFIC WESTBOUND
INITIATED AND MAINTAINED THE RATE INCREASE IN ORDER TO IMPLEMENT
CERTAIN RATE-MAKING AGREEMENTS BETWEEN THE CONFERENCES WHICH HAVE NEVER
BEEN APPROVED BY THE MARITIME COMMISSION.  PETITIONER ALSO ALLEGES THAT
IT ASKED PACIFIC WESTBOUND TO RESTORE THE ORIGINAL RATE AND THAT
PACIFIC WESTBOUND REFUSED TO DO SO ONLY BECAUSE FAR EAST WOULD NOT
AGREE TO IT.  PETITIONER CLAIMED THAT IT IS ENTITLED TO RECOVER TREBLE
DAMAGES BECAUSE THE IMPLEMENTATION OF SUCH UNAPPROVED AGREEMENTS IS
UNLAWFUL PER SE UNDER THE ANTITRUST LAWS. 

RESPONDENTS MOVED TO DISMISS, CLAIMING THAT THE SHIPPING ACT, 1916
REPEALED ALL ANTITRUST REGULATION OF THE RATE-MAKING ACTIVITIES OF THE
SHIPPING INDUSTRY.  THE DISTRICT COURT GRANTED THE MOTION.  THE COURT
OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED THE DISMISSAL OF THE ACTION
ON THE GROUND THAT SUCH AN ACTION CANNOT BE MAINTAINED UNTIL THE
COMMISSION HAS PASSED UPON THE AGREEMENTS, 336 F.2D 650.  WE GRANTED
CERTIORARI, 380 U.S. 905, AND HOLD THAT THE IMPLEMENTATION OF RATE
MAKING AGREEMENTS WHICH HAVE NOT BEEN APPROVED BY THE FEDERAL MARITIME
COMMISSION IS SUBJECT TO THE ANTITRUST LAWS. 

THE SHIPPING ACT CONTAINS AN EXPLICIT PROVISION EXEMPTING ACTIVITIES
WHICH ARE LAWFUL UNDER SEC. 15 OF THE ACT FROM THE SHERMAN AND CLAYTON
ACTS.  THIS EXPRESS PROVISION COVERS APPROVED AGREEMENTS, WHICH ARE
LAWFUL UNDER SEC. 15, BUT DOES NOT APPLY TO THE IMPLEMENTATION OF
UNAPPROVED AGREEMENTS, WHICH IS SPECIFICALLY PROHIBITED BY SEC. 15. 
(FN1)  THE CREATION OF AN ANTITRUST EXEMPTION FOR RATE-MAKING
ACTIVITIES WHICH ARE LAWFUL UNDER THE SHIPPING ACT IMPLIES THAT
UNLAWFUL RATE-MAKING ACTIVITIES ARE NOT EXEMPT.  THIS COURT SO
INTERPRETED AN ANALOGOUS PROVISION OF THE AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937, 50 STAT. 246, 7 U.S.C. SEC. 601 ET SEQ. (1964
ED.), EXEMPTING MARKETING AGREEMENTS APPROVED BY THE SECRETARY OF
AGRICULTURE FROM THE ANTITRUST LAWS.  THE COURT THERE DECLARED THAT THE
"EXPLICIT PROVISIONS REQUIRING OFFICIAL PARTICIPATION AND
AUTHORIZATIONS SHOW BEYOND QUESTION HOW FAR CONGRESS INTENDED THAT THE
AGRICULTURAL ACT SHOULD OPERATE TO RENDER THE SHERMAN ACT
INAPPLICABLE.  IF CONGRESS HAD DESIRED TO GRANT ANY FURTHER IMMUNITY,
CONGRESS DOUBTLESS WOULD HAVE SAID SO."  UNITED STATES V. BORDEN CO.,
308 U.S. 188, 201. 

RESPONDENTS CONTEND, NEVERTHELESS, THAT THE SEC. 15 EXEMPTION DOES
NOT REFLECT THE TRUE INTENT OF THE CONGRESS WHICH ENACTED IT.  THEY
INSIST THAT THE STRUCTURE OF THE ACT AND ITS LEGISLATIVE HISTORY
DEMONSTRATE AN UNSTATED LEGISLATIVE PURPOSE TO FREE THE SHIPPING
INDUSTRY FROM THE ANTITRUST LAWS. 

WE DO NOT BELIEVE THAT THE REMAINING PROVISIONS OF THE SHIPPING ACT
CAN REASONABLY BE CONSTRUED AS AN IMPLIED REPEAL OF ALL ANTITRUST
REGULATION OF THE SHIPPING INDUSTRY'S RATE-MAKING ACTIVITIES.  WE
RECENTLY SAID:  "REPEALS OF THE ANTITRUST LAWS BY IMPLICATION FROM A
REGULATORY STATUTE ARE STRONGLY DISFAVORED, AND HAVE ONLY BEEN FOUND IN
CASES OF PLAIN REPUGNANCY BETWEEN THE ANTITRUST AND REGULATORY
PROVISIONS."  UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321, 350-351.  WE HAVE LONG RECOGNIZED THAT THE ANTITRUST LAWS
REPRESENT A FUNDAMENTAL NATIONAL ECONOMIC POLICY AND HAVE THEREFORE
CONCLUDED THAT WE CANNOT LIGHTLY ASSUME THAT THE ENACTMENT OF A SPECIAL
REGULATORY SCHEME FOR PARTICULAR ASPECTS OF AN INDUSTRY WAS INTENDED TO
RENDER THE MORE GENERAL PROVISIONS OF THE ANTITRUST LAWS WHOLLY
INAPPLICABLE TO THAT INDUSTRY.  WE HAVE, THEREFORE, DECLINED TO
CONSTRUE SPECIAL INDUSTRY REGULATIONS AS AN IMPLIED REPEAL OF THE
ANTITRUST LAWS EVEN WHEN THE REGULATORY STATUTE DID NOT CONTAIN AN
ACCOMMODATION PROVISION SUCH AS THE EXEMPTION PROVISIONS OF THE
SHIPPING AND AGRICULTURAL ACTS.  SEE, E.G., UNITED STATES V.
PHILADELPHIA NATIONAL BANK, SUPRA. 

THE HISTORICAL BACKGROUND OF THE SHIPPING ACT DOES NOT INDICATE THAT
A DIFFERENT RULE OF CONSTRUCTION SHOULD BE APPLIED IN INTERPRETING THAT
ACT.  THE CONGRESS WHICH ENACTED THE SHIPPING ACT WAS NOT HOSTILE TO
ANTITRUST REGULATION.  ON THE CONTRARY, THE SHIPPING ACT WAS THE END
PRODUCT OF AN EXTENSIVE INVESTIGATION OF THE SHIPPING INDUSTRY THAT WAS
CONDUCTED BY THE CONGRESS WHICH ENACTED THE CLAYTON ACT.  (FN2) 

RESPONDENTS CLAIM, NEVERTHELESS, THAT THE COMMITTEE WHICH CONDUCTED
THE INVESTIGATION MUST HAVE BEEN HOSTILE TO ANTITRUST REGULATION OF THE
SHIPPING INDUSTRY BECAUSE IT CONCLUDED THAT THE ABOLITION OF THE
CONFERENCE SYSTEM, WHICH THE SHERMAN ACT PROBABLY REQUIRED, WOULD NOT
BE IN THE PUBLIC INTEREST.  BUT THE COMMITTEE ALSO CONCLUDED THAT THE
CONFERENCE SYSTEM HAD PRODUCED SUBSTANTIAL EVILS AND THAT IT SHOULD NOT
BE PERMITTED TO CONTINUE WITHOUT GOVERNMENTAL SUPERVISION. 

THE COMMITTEE SAID:  "WHILE ADMITTING THEIR MANY ADVANTAGES, THE
COMMITTEE IS NOT DISPOSED TO RECOGNIZE STEAMSHIP AGREEMENTS AND
CONFERENCES, UNLESS THE SAME ARE BROUGHT UNDER SOME FORM OF EFFECTIVE
GOVERNMENT SUPERVISION.  TO PERMIT SUCH AGREEMENTS WITHOUT GOVERNMENT
SUPERVISION WOULD MEAN GIVING THE PARTIES THERETO UNRESTRICTED RIGHT OF
ACTION.  ABUSES EXIST, AND THE NUMEROUS COMPLAINTS RECEIVED BY THE
COMMITTEE SHOW THAT THEY MUST BE RECOGNIZED."  H.R. DOC. NO. 805, 63D
CONG., 2D SESS., PP. 417-418. 

THEREFORE, IT SEEMS LIKELY THAT THE COMMITTEE REALLY ONLY WANTED TO
GIVE THE SHIPPING INDUSTRY A LIMITED ANTITRUST EXEMPTION.  WE DO NOT
BELIEVE THAT ITS PURPOSE WOULD BE FRUSTRATED BY THE APPLICATION OF THE
ANTITRUST LAWS TO THE IMPLEMENTATION OF CONFERENCE AGREEMENTS WHICH
HAVE NOT BEEN SUBJECTED TO PUBLIC SCRUTINY AND EXAMINATION BY A
GOVERNMENTAL AGENCY.  (FN3) 

BUT EVEN IF THE COMMITTEE CONSIDERED THE POSSIBILITY OF A COMPLETE
ANTITRUST EXEMPTION AT THE TIME OF THE 1914 REPORT, THE SEC. 15
EXEMPTION CLEARLY DEMONSTRATES THAT THOSE WHO DRAFTED THE SHIPPING ACT
DURING THE NEXT CONGRESS DECIDED NOT TO GIVE THE INDUSTRY COMPLETE
ANTITRUST IMMUNITY.  SINCE THE PROBLEM OF THE APPLICATION OF THE
ANTITRUST LAWS TO THE SHIPPING INDUSTRY WAS ONE OF THE FOCAL POINTS OF
THE ENTIRE INQUIRY, THE EXEMPTION PROVISION COULD NOT HAVE BEEN A
CASUAL AFTERTHOUGHT.  THE LANGUAGE OF THAT PROVISION MUST HAVE BEEN
SELECTED AS A MATTER OF DELIBERATE CHOICE IN ORDER TO INDICATE THE
EXTENT TO WHICH THE INDUSTRY'S RATE-MAKING ACTIVITIES REMAIN SUBJECT TO
THE ANTITRUST LAWS AS WELL AS THE EXTENT TO WHICH THOSE ACTIVITIES ARE
EXEMPTED FROM ANTITRUST REGULATION. 

THIS COURT'S DECISIONS IN UNITED STATES NAVIGATION CO. V. CUNARD
STEAMSHIP CO., 284 U.S. 474, AND FAR EAST CONFERENCE V. UNITED STATES,
342 U.S. 570, DO NOT CONFLICT WITH OUR INTERPRETATION OF THE SHIPPING
ACT.  THOSE CASES MERELY HOLD THAT COURTS MUST REFRAIN FROM IMPOSING
ANTITRUST SANCTIONS FOR ACTIVITIES OF DEBATABLE LEGALITY UNDER THE
SHIPPING ACT IN ORDER TO AVOID THE POSSIBILITY OF CONFLICT BETWEEN THE
COURTS AND THE COMMISSION. 

THE PLAINTIFFS IN THE CUNARD AND FAR EAST CASES WERE SEEKING TO
ENJOIN ACTIVITIES WHICH ALLEGEDLY IMPLEMENTED UNAPPROVED AGREEMENTS
EVEN THOUGH THE COMMISSION HAD NEVER DETERMINED WHETHER THOSE ALLEGED
ACTIVITIES CONSTITUTED THE IMPLEMENTATION OF UNAPPROVED AGREEMENTS. 
THERE WAS A REAL RISK THAT THE DISTRICT COURT MIGHT FIND THAT THE
DEFENDANTS HAD IMPLEMENTED UNAPPROVED AGREEMENTS WHILE THE COMMISSION
MIGHT FIND IN SOME LATER PROCEEDING THAT THE SAME ACTIVITIES
CONSTITUTED THE IMPLEMENTATION OF APPROVED AGREEMENTS.  THIS COURT
DECIDED THAT THE DANGER OF SUCH A CONFLICT COULD BEST BE AVOIDED BY
HOLDING THAT ONE TRIBUNAL OR THE OTHER HAS THE EXCLUSIVE RIGHT TO MAKE
THE INITIAL FACTUAL DETERMINATION.  SINCE THE COMMISSION HAS
SPECIALIZED KNOWLEDGE OF THE INDUSTRY, THE COURT CONCLUDED THAT SUCH
PRIMARY JURISDICTION SHOULD BE VESTED IN THE COMMISSION AND ACCORDINGLY
INSTRUCTED THE DISTRICT COURT TO REFRAIN FROM ACTING UNTIL THE
COMMISSION HAD ASCERTAINED AND INTERPRETED THE CIRCUMSTANCES UNDERLYING
THE LEGAL ISSUES. 

THE RELIEF REQUESTED IN THE CUNARD AND FAR EAST CASES ALSO CREATED
ANOTHER SOURCE OF POSSIBLE CONFLICT.  EVEN IF THE COMMISSION FOUND THAT
THE DEFENDANTS IN THOSE CASES HAD IMPLEMENTED UNAPPROVED AGREEMENTS,
THE COMMISSION MIGHT DECIDE TO APPROVE THE PROSPECTIVE IMPLEMENTATION
OF THOSE AGREEMENTS.  THE COMMISSION WOULD OBVIOUSLY BE HAMPERED IN THE
EXERCISE OF THAT POWER IF A COURT HAD PREVIOUSLY ISSUED AN
UNCONDITIONAL INJUNCTION PROHIBITING THE IMPLEMENTATION OF THE
AGREEMENTS IN QUESTION.  THEREFORE, THE COURT CONCLUDED THAT THE
DISTRICT COURT SHOULD NOT BE PERMITTED TO ISSUE AN UNCONDITIONAL
INJUNCTION IN THE ABSENCE OF A COMMISSION DETERMINATION DISAPPROVING
FUTURE OPERATIONS UNDER THOSE AGREEMENTS. 

THE CONSIDERATIONS WHICH LED TO OUR DECISIONS IN THE FAR EAST AND
CUNARD CASES DO NOT REQUIRE THAT THE SHIPPING INDUSTRY BE TOTALLY
IMMUNIZED FROM ANTITRUST REGULATION.  THE FAR EAST AND CUNARD
PRINCIPLES PERMIT COURTS TO SUBJECT ACTIVITIES WHICH ARE CLEARLY
UNLAWFUL UNDER THE SHIPPING ACT TO ANTITRUST SANCTIONS SO LONG AS THE
COURTS REFRAIN FROM TAKING ACTION WHICH MIGHT INTERFERE WITH THE
COMMISSION'S EXERCISE OF ITS LAWFUL POWERS.  THE FAR EAST OPINION
EXPLICITLY RECOGNIZED THAT THIS IS THE CASE.  THE COURT OBSERVED THAT
THE GOVERNMENT COULD REINSTATE ITS INJUNCTION SUIT IF AND WHEN THE
COMMISSION FOUND THAT THE DEFENDANTS' ACTIVITIES WERE NOT LAWFUL UNDER
THE SHIPPING ACT AND WOULD NOT BE APPROVED PROSPECTIVELY.  (FN4) 

THE AWARD OF TREBLE DAMAGES FOR PAST AND COMPLETED CONDUCT WHICH
CLEARLY VIOLATED THE SHIPPING ACT WOULD CERTAINLY NOT INTERFERE WITH
ANY FUTURE ACTION OF THE COMMISSION.  ALTHOUGH THE COMMISSION CAN
APPROVE PROSPECTIVE OPERATIONS UNDER AGREEMENTS WHICH HAVE BEEN
IMPLEMENTED WITHOUT APPROVAL, RESPONDENTS CONCEDE THAT THE COMMISSION
HAS NO POWER TO VALIDATE PRE-APPROVAL IMPLEMENTATION OF SUCH
AGREEMENTS.  THEREFORE, THE FAR EAST AND CUNARD PRINCIPLES ONLY
PRECLUDE COURTS FROM AWARDING TREBLE DAMAGES WHEN THE DEFENDANTS'
CONDUCT IS ARGUABLY LAWFUL UNDER THE SHIPPING ACT. 

THE COURT OF APPEALS THOUGHT THAT RESPONDENTS' ACTIVITIES WERE
ARGUABLY LAWFUL UNDER THE SHIPPING ACT.  IT CONCLUDED THAT RESPONDENTS'
ACTIVITIES CONCEIVABLY CONSTITUTED THE IMPLEMENTATION OF A 1952
AGREEMENT BETWEEN THE RESPONDENTS WHICH HAD BEEN APPROVED BY THE
COMMISSION.  THEREFORE, THE COURT OF APPEALS AFFIRMED THE DISTRICT
COURT'S ORDER DISMISSING THE ACTION. 

WE BELIEVE THAT THE COURT OF APPEALS ERRED IN DISMISSING THE ACTION. 
THE COURT OF APPEALS APPARENTLY THOUGHT THAT THIS WAS THE PROPER COURSE
BECAUSE THIS COURT DISMISSED THE ACTION IN FAR EAST.  HOWEVER, THE FAR
EAST OPINION INDICATES THAT THE COURT ONLY CHOSE TO DISMISS THAT ACTION
RATHER THAN TO STAY THE PROCEEDINGS PENDING COMMISSION ACTION BECAUSE
IT FOUND THAT DISMISSAL WOULD NOT PREJUDICE THE PLAINTIFF'S RIGHT TO
OBTAIN ANTITRUST RELIEF AT THE APPROPRIATE TIME.  (FN5)  THAT PLAINTIFF
WAS SEEKING INJUNCTIVE RELIEF FROM CONTINUING CONDUCT.  SUCH A SUIT
COULD EASILY BE REINSTITUTED IF AND WHEN THE COMMISSION DETERMINED THAT
THE ACTIVITIES IN QUESTION VIOLATED THE SHIPPING ACT.  BUT A TREBLE
DAMAGE ACTION FOR PAST CONDUCT CANNOT BE EASILY REINSTITUTED AT A LATER
TIME.  SUCH CLAIMS ARE SUBJECT TO THE STATUTE OF LIMITATIONS AND ARE
LIKELY TO BE BARRED BY THE TIME THE COMMISSION ACTS.  THEREFORE, WE
BELIEVE THAT THE COURT OF APPEALS SHOULD HAVE STAYED THE ACTION INSTEAD
OF DISMISSING IT. 

THE COMMISSION COMPLETED ITS OWN INVESTIGATION OF RESPONDENTS'
ACTIVITIES AFTER CERTIORARI WAS GRANTED AND CONCLUDED THAT ITS APPROVAL
OF RESPONDENTS' 1952 AGREEMENT DID NOT COVER THE IMPLEMENTATION OF THE
SUBSEQUENT AGREEMENTS WHICH ARE THE BASIS OF PETITIONER'S TREBLE-DAMAGE
COMPLAINT.  (FN6)  AN APPEAL FROM THE COMMISSION'S DECISION IS NOW
PENDING. 

PETITIONER'S TREBLE-DAMAGE ACTION IS BASED UPON THE THEORY THAT THOSE
SAME SUBSEQUENT RATE-MAKING AGREEMENTS ARE UNLAWFUL PER SE UNDER THE
ANTITRUST LAWS.    PETITIONER PARTICIPATED IN THE PROCEEDINGS BEFORE
THE COMMISSION, BUT PETITIONER DID NOT ASK FOR REPARATIONS UNDER THE
SHIPPING ACT AND, THEREFORE, COULD NOT BE ACCORDED ANY.  PETITIONER'S
FAILURE TO SEEK SHIPPING ACT REPARATIONS DOES NOT AFFECT ITS RIGHTS
UNDER THE ANTITRUST LAWS.  THE RIGHTS WHICH PETITIONER CLAIMS UNDER THE
ANTITRUST LAWS ARE ENTIRELY COLLATERAL TO THOSE WHICH PETITIONER MIGHT
HAVE SOUGHT UNDER THE SHIPPING ACT.  THIS DOES NOT SUGGEST THAT
PETITIONER MIGHT HAVE SOUGHT RECOVERY UNDER BOTH, BUT PETITIONER DID
HAVE ITS CHOICE. 

THEREFORE, WE REVERSE THE ORDER DISMISSING THIS ACTION AND REMAND THE
CASE TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA WITH INSTRUCTIONS TO STAY THE ACTION PENDING THE FINAL
OUTCOME OF THE SHIPPING ACT PROCEEDINGS AND THEN TO PROCEED IN A MANNER
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SECTION 15, AS SET FORTH IN 46 U.S.C. SEC. 814, PROVIDES IN
PART: 

"ANY AGREEMENT AND ANY MODIFICATION OR CANCELLATION OF ANY AGREEMENT
NOT APPROVED, OR DISAPPROVED, BY THE COMMISSION SHALL BE UNLAWFUL, AND
AGREEMENTS, MODIFICATIONS, AND CANCELLATIONS SHALL BE LAWFUL ONLY WHEN
AND AS LONG AS APPROVED BY THE COMMISSION; BEFORE APPROVAL OR AFTER
DISAPPROVAL IT SHALL BE UNLAWFUL TO CARRY OUT IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, ANY SUCH AGREEMENT, MODIFICATION, OR
CANCELLATION; EXCEPT THAT TARIFF RATES, FARES, AND CHARGES, AND
CLASSIFICATIONS, RULES, AND REGULATIONS EXPLANATORY THEREOF (INCLUDING
CHANGES IN SPECIAL RATES AND CHARGES COVERED BY SECTION 813A OF THIS
TITLE WHICH DO NOT INVOLVE A CHANGE IN THE SPREAD BETWEEN SUCH RATES
AND CHARGES AND THE RATES AND CHARGES APPLICABLE TO NONCONTRACT
SHIPPERS) AGREED UPON BY APPROVED CONFERENCES, AND CHANGES AND
AMENDMENTS THERETO, IF OTHERWISE IN ACCORDANCE WITH LAW, SHALL BE
PERMITTED TO TAKE EFFECT WITHOUT PRIOR APPROVAL UPON COMPLIANCE WITH
THE PUBLICATION AND FILING REQUIREMENTS OF SECTION 817(B) OF THIS TITLE
AND WITH THE PROVISIONS OF ANY REGULATIONS THE COMMISSION MAY ADOPT. 

"EVERY AGREEMENT, MODIFICATION, OR CANCELLATION LAWFUL UNDER THIS
EXCEPTED FROM THE PROVISIONS OF SECTIONS 1-11 AND 15 OF TITLE 15, AND
AMENDMENTS AND ACTS SUPPLEMENTARY THERETO. 

"WHOEVER VIOLATES ANY PROVISION OF THIS SECTION OR OF SECTION 813A OF
THIS TITLE SHALL BE LIABLE TO A PENALTY OF NOT MORE THAN $1,000 FOR
EACH DAY SUCH VIOLATION CONTINUES, TO BE RECOVERED BY THE UNITED STATES
IN A CIVIL ACTION  ...  ." 

FN2  THE SHIPPING ACT, 1916 WAS PASSED FOLLOWING AN EXHAUSTIVE
INVESTIGATION INTO SHIPPING COMBINATIONS UNDERTAKEN BY THE HOUSE
COMMITTEE ON MERCHANT MARINE AND FISHERIES UNDER THE CHAIRMANSHIP OF
CONGRESSMAN ALEXANDER.  THAT COMMITTEE ISSUED ITS REPORT ON STEAMSHIP
AGREEMENTS AND AFFILIATIONS IN THE AMERICAN FOREIGN AND DOMESTIC TRADE,
H.R.  DOC. NO. 805, 63D CONG., 2D SESS. ("ALEXANDER REPORT") IN 1914. 

FN3  RESPONDENTS CONTEND THAT TREBLE-DAMAGE ACTIONS WILL FRUSTRATE
ONE OF THE COMMITTEE'S PURPOSES.  THE COMMITTEE FOUND, HOWEVER, THAT
THE CONFERENCES HAD DISCRIMINATED AMONG SHIPPERS AND CONCLUDED THAT
SUCH DISCRIMINATION SHOULD BE ELIMINATED.  RESPONDENTS ASSERT THAT
TREBLE-DAMAGE AWARDS FOR SHIPPERS ARE EQUIVALENT TO REBATES AND THAT
SHIPPERS WILL RECEIVE UNEQUAL "REBATES" BECAUSE DIFFERENT COURTS AND
JURIES WILL INEVITABLY APPLY DIFFERENT MEASURES OF DAMAGES.  THEREFORE,
THEY CONCLUDE THAT TREBLE-DAMAGE ACTIONS WILL FRUSTRATE THE SHIPPING
ACT POLICY OF EQUALITY OF TREATMENT FOR SHIPPERS. 

WE BELIEVE THAT CONGRESS WAS CONCERNED WITH ASSURING EQUALITY OF
TREATMENT BY THE CONFERENCES, NOT WITH EQUALITY OF TREATMENT BY JURIES
IN COLLATERAL PROCEEDINGS.  THERE IS NO REASON TO BELIEVE THAT CONGRESS
WOULD WANT TO DEPRIVE ALL SHIPPERS OF THEIR RIGHT TO TREBLE DAMAGES
MERELY TO ASSURE THAT SOME SHIPPERS DO NOT OBTAIN MORE GENEROUS AWARDS
THAN OTHERS. 

FN4  THE COURT SAID: 

"HAVING CONCLUDED THAT INITIAL SUBMISSION TO THE FEDERAL MARITIME
BOARD IS REQUIRED, WE MAY EITHER ORDER THE CASE RETAINED ON THE
DISTRICT COURT DOCKET PENDING THE BOARD'S ACTION  ...  OR ORDER
DISMISSAL OF THE PROCEEDING BROUGHT IN THE DISTRICT COURT  ...  .  WE
BELIEVE THAT NO PURPOSE WILL HERE BE SERVED TO HOLD THE PRESENT ACTION
IN ABEYANCE IN THE DISTRICT COURT WHILE THE PROCEEDING BEFORE THE BOARD
AND SUBSEQUENT JUDICIAL REVIEW OR ENFORCEMENT OF ITS ORDER ARE BEING
PURSUED.  A SIMILAR SUIT IS EASILY INITIATED LATER, IF APPROPRIATE." 
342 U.S. 570, 576-577. 

IF THE FAR EAST DECISION HAD HELD THAT THE ACTIVITIES IN QUESTION
COULD NEVER BE SUBJECTED TO THE ANTITRUST LAWS UNDER ANY CIRCUMSTANCES,
THERE WOULD OBVIOUSLY HAVE BEEN NO REASON TO CONSIDER WHETHER THE
PROCEEDINGS SHOULD BE STAYED OR DISMISSED.  THUS, THE FAR EAST OPINION
EFFECTIVELY DETERMINED THAT THE IMPLEMENTATION OF UNAPPROVED RATE
MAKING AGREEMENTS IS SUBJECT TO ANTITRUST REGULATION. 

FN5  SEE NOTE 4, SUPRA. 

FN6  THE FEDERAL MARITIME COMMISSION COMMENCED AN INVESTIGATION IN
1959 TO DETERMINE WHETHER THE 1952 AGREEMENT BETWEEN RESPONDENTS
CONSTITUTED THE FULL AGREEMENT BETWEEN THE PARTIES.  THIS INVESTIGATION
CULMINATED IN THE ISSUANCE OF THE COMMISSION'S REPORT ON JOINT
AGREEMENT BETWEEN MEMBER LINES OF THE FAR EAST CONFERENCE AND THE
MEMBER LINES OF THE PACIFIC WESTBOUND CONFERENCE, FEDERAL MARITIME
COMMISSION DOCKET NO. 872, JULY 28, 1965, REHEARING DENIED, NOVEMBER 1,
1965. 

THE COMMISSION FOUND THAT THE RESPONDENTS HAD ENTERED INTO AND
IMPLEMENTED A NUMBER OF JOINT RATE-MAKING AGREEMENTS AFTER THE
COMMISSION APPROVED THE 1952 AGREEMENT FOR CONSULTATION AND THAT NONE
OF THE SUBSEQUENT AGREEMENTS HAD BEEN FILED FOR APPROVAL.  THE
COMMISSION CONCLUDED THAT ITS APPROVAL OF THE 1952 AGREEMENT DID NOT
COVER ANY OF THE SUBSEQUENT AGREEMENTS AND, THEREFORE, THAT RESPONDENTS
HAD VIOLATED THE SHIPPING ACT BY IMPLEMENTING THOSE SUBSEQUENT
AGREEMENTS. 
..END :























ACCARDI V. PENNSYLVANIA R. CO. 383 U.S. 225 


NO. 280.  ARGUED JANUARY 20, 1966 - DECIDED FEBRUARY 28, 1966 - 341 F.2D
72, REVERSED AND REMANDED. 


PETITIONERS, AFTER MILITARY SERVICE IN WORLD WAR II, RETURNED TO THIER
EMPLOYMENT AS TUGBOAT FIREMEN WITH RESPONDENT, PENNSYLVANIA RAILROAD,
WHICH THEY HAD COMMENCED IN 1941 AND 1942.  EACH WAS GIVEN THE SAME
AMOUNT OF SENIORITY HE HAD BEFORE LEAVING, PLUS CREDIT FOR THE TIME
SPENT IN THE SERVICE AS REQUIRED BY THE SELECTIVE TRAINING AND SERVICE
ACT OF 1940.  A STRIKE DEVELOPED IN 1959 OVER THE NEED FOR FIREMEN ON
THE NEW DIESEL TUGS, WHICH WAS SETTLED THE NEXT YEAR BY PETITIONERS'
UNION AND THE RAILROADS.  THE SETTLEMENT AGREEMENT CALLED FOR RETENTION
OF FIREMEN WITH 20 YEARS OR MORE SENIORITY WHO WANTED TO REMAIN.  OTHER
EMPLOYEES, INCLUDING THE PETITIONERS, WERE TO BE PAID A SEVERANCE OR
SEPARATION ALLOWANCE DETERMINED BY THE LENGTH OF "COMPENSATED SERVICE"
WITH THE RAILROAD, A MONTH OF SUCH SERVICE BEING DEFINED AS ANY MONTH
IN WHICH THE EMPLOYEE WORKED ONE OR MORE DAYS, AND A YEAR OF SUCH
SERVICE BEING 12 SUCH MONTHS OR A MAJOR PORTION THEREOF.  PETITIONERS
CLAIMED THAT THEIR YEARS IN THE ARMED FORCES WERE TO BE INCLUDED IN
CALCULATING THEIR SEPARATION ALLOWANCES.  WHEN THE RAILROAD DECLINED TO
ADJUST THEIR ALLOWANCES ACCORDINGLY, PETITIONERS BROUGHT THIS ACTION IN
DISTRICT COURT, CLAIMING THAT RESPONDENT'S REFUSAL CONTRAVENED SEC.
8(B)(B) OF THE ACT, REQUIRING REINSTATEMENT "TO THE FORMER POSITION OR
TO A POSITION OF LIKE SENIORITY, STATUS AND PAY," AS RE-EMPHASIZED BY
SEC. 8(C) PROVIDING THAT A PERSON REINSTATED "SHALL BE SO RESTORED
WITHOUT LOSS OF SENIORITY."  RESPONDENT CLAIMED THAT THOSE PROVISIONS
WERE WHOLLY INAPPLICABLE AND ALSO CONTENDED, IN VIEW OF THE SEC. 8(C)
PROVISION THAT A REINSTATED VETERAN "SHALL NOT BE DISCHARGED ...
WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION," THAT THE ACT HAD
NO APPLICATION TO ANY RIGHTS CREATED BY THE SETTLEMENT AGREEMENT.  THE
DISTRICT COURT RENDERED JUDGMENT FOR PETITIONERS AND THE COURT OF
APPEALS REVERSED.  HELD: 

1.  FAILURE TO CREDIT PETITIONERS'"COMPENSATED SERVICE" TIME WITH THE
PERIOD SPENT IN THE ARMED SERVICES DOES NOT ACCORD PETITIONERS THE
RIGHT TO BE REINSTATED "WITHOUT LOSS OF SENIORITY" GUARANTEED BY SECS.
8(B)(B) AND (C).  PP. 228-232. 

2.  RESPONDENT'S CONTENTION THAT THE ACT DOES NOT APPLY TO RIGHTS
RESULTING FROM THE CONTRACT, WHICH WAS ENTERED INTO OVER A YEAR AFTER
PETITIONERS RESUMED EMPLOYMENT, IS WHOLLY WITHOUT MERIT, SINCE
SENIORITY STATUS CONTINUES BEYOND THE FIRST YEAR OF A VETERAN'S RE
EMPLOYMENT.  OAKLEY V. LOUISVILLE & N.R. CO., 338 U.S. 278.  PP. 232
233. 

3.  THE CASE IS REMANDED TO THE COURT OF APPEALS FOR CONSIDERATION OF
THE ISSUE OF THE DISTRICT COURT'S COMPUTATION OF INTEREST ON THE
JUDGMENT AWARDED PETITIONERS.  P. 233. 

ACCARDI ET AL. V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, WHO ARE WORLD WAR II VETERANS AND FORMER EMPLOYEES OF
THE PENNSYLVANIA RAILROAD, BROUGHT THIS ACTION CLAIMING THAT THEIR
FORMER EMPLOYER DENIED THEM CERTAIN SENIORITY RIGHTS GUARANTEED BY SEC.
8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.  (FN1)  SECTION
8(B)(B) OF THAT ACT PROVIDES THAT UPON APPLICATION BY ANY FORMER
EMPLOYEE WHO HAS SATISFACTORILY COMPLETED HIS MILITARY SERVICE, A
PRIVATE EMPLOYER "SHALL RESTORE" SUCH HONORABLY DISCHARGED SERVICEMAN
TO HIS FORMER "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."  SECTION 8(C) RE-EMPHASIZES SEC.
8(B)(B) BY PROVIDING THAT ANY PERSON SO RESTORED "SHALL BE SO RESTORED
WITHOUT LOSS OF SENIORITY." 

THE FACTS IN THIS CASE ARE UNDISPUTED.  IN 1941 AND 1942 THE SIX
PETITIONERS BEGAN WORKING AS FIREMEN ON TUGBOATS OWNED BY THE
PENNSYLVANIA RAILROAD AND OPERATED IN THE PORT OF NEW YORK. 
PETITIONERS LEFT THEIR JOBS IN 1942 AND 1943 TO ENTER THE ARMED
SERVICES AND AFTER SERVING THREE YEARS OR MORE EACH RECEIVED AN
HONORABLE DISCHARGE.  SHORTLY AFTER DISCHARGE EACH WAS RESTORED BY THE
RAILROAD TO HIS FORMER POSITION AS FIREMAN WITH THE SAME AMOUNT OF
SENIORITY HE HAD BEFORE LEAVING PLUS CREDIT FOR THE TIME SPENT IN THE
ARMED FORCES, AS REQUIRED BY THE 1940 ACT.  ALL SIX CONTINUED TO WORK
FOR THE RAILROAD UNTIL 1960.  IN 1959 A LABOR DISPUTE BROKE OUT WHEN
THE PENNSYLVANIA AND NINE OTHER RAILROAD CARRIERS OPERATING TUGBOATS
CLAIMED THAT FIREMEN WERE NOT NECESSARY ON THE NEW DIESEL TUGS, AND THE
OWNERS OF THE TUGS SOUGHT TO ABOLISH THE CRAFT AND CLASS OF FIREMAN. 
THE UNIONS AFFECTED CALLED A STRIKE.  THIS STRIKE WAS SETTLED IN 1960
WHEN PETITIONERS' UNION AND THE RAILROADS ENTERED AN AGREEMENT WHICH
ABOLISHED THE POSITION OF FIREMAN ON ALL DIESEL TUGS.  AS THEIR PART OF
THE BARGAIN THE RAILROADS AGREED TO RETAIN IN THEIR EMPLOY FIREMEN WITH
20 YEARS OR MORE SENIORITY WHO DESIRED TO REMAIN, BUT ALL FIREMEN WITH
LESS THAN 20 YEARS SENIORITY WERE DISCHARGED.  TO MAKE THIS SETTLEMENT
MORE ACCEPTABLE TO THE EMPLOYEES, THOSE WHO WERE DISCHARGED OR WHO DID
NOT DESIRE TO STAY WITH THE RAILROADS WERE PAID A SEVERANCE OR
SEPARATION ALLOWANCE BASED ON A FORMULA SET OUT IN THE AGREEMENT.  EACH
OF THE PETITIONERS INVOLVED IN THIS CASE LEFT HIS JOB WITH THE
PENNSYLVANIA RAILROAD AND RECEIVED A SEPARATION ALLOWANCE, BUT EACH
RECEIVED LESS THAN HE THOUGHT WAS DUE.  THIS LAWSUIT WAS BEGUN AS AN
ATTEMPT TO RECOVER WHAT EACH BELIEVED WAS OWED HIM BY THE RAILROAD. 

THE AMOUNT OF THE SEPARATION ALLOWANCES WAS DETERMINED, ACCORDING TO
THE LANGUAGE OF THE AGREEMENT, BY THE LENGTH OF "COMPENSATED SERVICE"
WITH THE RAILROAD.  A MONTH OF "COMPENSATED SERVICE" WAS DEFINED AS ANY
MONTH IN WHICH THE EMPLOYEE WORKED ONE OR MORE DAYS AND "A YEAR OF
COMPENSATED SERVICE IS 12 SUCH MONTHS OR MAJOR PORTION THEREOF."  IN
COMPUTING PETITIONERS' SEPARATION ALLOWANCES THE RAILROAD DID NOT
INCLUDE THE YEARS SPENT IN THE ARMED FORCES AS YEARS OF "COMPENSATED
SERVICE."  PETITIONERS CLAIM THIS WAS ERROR AND CONTRARY TO SEC. 8 OF
THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.  EACH PETITIONER
RECEIVED $1,242.60 LESS THAN HE WOULD HAVE IF GIVEN CREDIT FOR THE
THREE OR MORE YEARS HE SPENT IN MILITARY SERVICE AND THE PARTIES HAVE
STIPULATED THAT IF PETITIONERS ARE ENTITLED TO HAVE THE TIME IN THE
SERVICE INCLUDED IN DETERMINING SEVERANCE PAY, JUDGMENT FOR THIS AMOUNT
SHOULD BE RENDERED FOR EACH OF THEM.  THE DISTRICT COURT RENDERED
JUDGMENT FOR PETITIONERS.  THE COURT OF APPEALS REVERSED, HOLDING,
CONTRARY TO THE DISTRICT COURT, THAT THE PETITIONERS WERE NOT ENTITLED
TO CREDIT FOR THEIR TIME IN THE SERVICE IN COMPUTING THE ALLOWANCES
BECAUSE THE ALLOWANCES DID NOT COME WITHIN THE CONCEPTS OF "SENIORITY,
STATUS, AND PAY."  341 F.2D 72. 

THE LANGUAGE OF THE 1940 ACT CLEARLY MANIFESTS A PURPOSE AND DESIRE
ON THE PART OF CONGRESS TO PROVIDE AS NEARLY AS POSSIBLE THAT PERSONS
CALLED TO SERVE THEIR COUNTRY IN THE ARMED FORCES SHOULD, UPON
RETURNING TO WORK IN CIVILIAN LIFE, RESUME THEIR OLD EMPLOYMENT WITHOUT
ANY LOSS BECAUSE OF THEIR SERVICE TO THEIR COUNTRY.  SECTION 8(B)(B) OF
THE STATUTE REQUIRES THAT PRIVATE EMPLOYERS REINSTATE THEIR FORMER
EMPLOYEES WHO ARE HONORABLY DISCHARGED VETERANS "TO THEIR FORMER
POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY," AND SEC.
8(C) PROVIDES THAT SUCH A PERSON "SHALL BE SO RESTORED WITHOUT LOSS OF
SENIORITY."  THIS MEANS THAT FOR THE PURPOSE OF DETERMINING SENIORITY
THE RETURNING VETERAN IS TO BE TREATED AS THOUGH HE HAS BEEN
CONTINUOUSLY EMPLOYED DURING THE PERIOD SPENT IN THE ARMED FORCES. 
FISHGOLD V. SULLIVAN CORP., 328 U.S. 275, 284-285.  THE CONTINUING
PURPOSE OF CONGRESS IN THIS MATTER WAS AGAIN SHOWN IN THE UNIVERSAL
MILITARY TRAINING AND SERVICE ACT, 62 STAT. 604, AS AMENDED, 50 U.S.C.
APP. SEC. 451 ET SEQ. (1964 ED.).  SECTION 9(C)(2) OF THAT ACT
PROVIDES: 

"IT IS HEREBY DECLARED TO BE THE SENSE OF THE CONGRESS THAT ANY
PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS
OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) OF THIS SECTION SHOULD BE SO
RESTORED IN SUCH A MANNER AS TO GIVE HIM SUCH STATUS IN HIS EMPLOYMENT
AS HE WOULD HAVE ENJOYED IF HE HAD CONTINUED IN SUCH EMPLOYMENT
CONTINUOUSLY FROM THE TIME OF HIS ENTERING THE ARMED FORCES UNTIL THE
TIME OF HIS RESTORATION TO SUCH EMPLOYMENT." 

RESPONDENT RAILROAD DOES NOT QUARREL WITH THIS INTERPRETATION OF THE
STATUTE BUT INSISTS THAT THE SEVERANCE PAY INVOLVED HERE WAS NOT BASED
ON SENIORITY AND THAT SECS. 8(B)(B) AND (C) ARE WHOLLY INAPPLICABLE TO
THIS CASE. 

THE TERM "SENIORITY" IS NOWHERE DEFINED IN THE ACT, BUT IT DERIVES
ITS CONTENT FROM PRIVATE EMPLOYMENT PRACTICES AND AGREEMENTS.  THIS
DOES NOT MEAN, HOWEVER, THAT EMPLOYERS AND UNIONS ARE EMPOWERED BY THE
USE OF TRANSPARENT LABELS AND DEFINITIONS TO DEPRIVE A VETERAN OF
SUBSTANTIAL RIGHTS GUARANTEED BY THE ACT.  AS WE SAID IN FISHGOLD V.
SULLIVAN CORP., SUPRA, "NO PRACTICE OF EMPLOYERS OR AGREEMENTS BETWEEN
EMPLOYERS AND UNIONS CAN CUT DOWN THE SERVICE ADJUSTMENT BENEFITS WHICH
CONGRESS HAS SECURED THE VETERAN UNDER THE ACT."  AT 285.  THE TERM
"SENIORITY" IS NOT TO BE LIMITED BY A NARROW, TECHNICAL DEFINITION BUT
MUST BE GIVEN A MEANING THAT IS CONSONANT WITH THE INTENTION OF
CONGRESS AS EXPRESSED IN THE 1940 ACT.  THAT INTENTION WAS TO PRESERVE
FOR THE RETURNING VETERANS THE RIGHTS AND BENEFITS WHICH WOULD HAVE
AUTOMATICALLY ACCRUED TO THEM HAD THEY REMAINED IN PRIVATE EMPLOYMENT
RATHER THAN RESPONDING TO THE CALL OF THEIR COUNTRY.  IN THIS CASE
THERE CAN BE NO DOUBT THAT THE AMOUNTS OF THE SEVERANCE PAYMENTS WERE
BASED PRIMARILY ON THE EMPLOYEES' LENGTH OF SERVICE WITH THE RAILROAD. 
THE RAILROAD CONTENDS, HOWEVER, THAT THE ALLOWANCES WERE NOT BASED ON
SENIORITY, BUT ON THE ACTUAL TOTAL SERVICE RENDERED BY THE EMPLOYEE. 
THIS IS HARDLY CONSISTENT WITH THE BIZARRE RESULTS POSSIBLE UNDER THE
DEFINITION OF "COMPENSATED SERVICE."  AS THE GOVERNMENT (FN2) POINTS
OUT, IT IS POSSIBLE UNDER THE AGREEMENT FOR AN EMPLOYEE TO RECEIVE
CREDIT FOR A WHOLE YEAR OF "COMPENSATED SERVICE" BY WORKING A MERE
SEVEN DAYS.  THERE WOULD BE NO DISTINCTION WHATEVER BETWEEN THE MAN WHO
WORKED ONE DAY A MONTH FOR SEVEN MONTHS AND THE MAN WHO WORKED 365 DAYS
IN A YEAR.  THE USE OF THE LABEL "COMPENSATED SERVICE" CANNOT OBSCURE
THE FACT THAT THE REAL NATURE OF THESE PAYMENTS WAS COMPENSATION FOR
LOSS OF JOBS.  AND THE COST TO AN EMPLOYEE OF LOSING HIS JOB IS NOT
MEASURED BY HOW MUCH WORK HE DID IN THE PAST - NO MATTER HOW CALCULATED
- BUT BY THE RIGHTS AND BENEFITS HE FORFEITS BY GIVING UP HIS JOB. 
AMONG EMPLOYEES WHO WORKED AT THE SAME JOBS IN THE SAME CRAFT AND CLASS
THE NUMBER AND VALUE OF THE RIGHTS AND BENEFITS INCREASE IN PROPORTION
TO THE AMOUNT OF SENIORITY, AND IT IS ONLY NATURAL THAT THOSE WITH THE
MOST SENIORITY SHOULD RECEIVE THE HIGHEST ALLOWANCES SINCE THEY WERE
GIVING UP MORE RIGHTS AND BENEFITS THAN THOSE WITH LESS SENIORITY.  THE
REQUIREMENTS OF THE 1940 ACT ARE NOT SATISFIED BY GIVING RETURNING
VETERANS SENIORITY IN SOME GENERAL ABSTRACT SENSE AND THEN DENYING THEM
THE PERQUISITES AND BENEFITS THAT FLOW FROM IT.  WE THINK IT CLEAR THAT
THE AMOUNT OF THESE ALLOWANCES IS JUST AS MUCH A PERQUISITE OF
SENIORITY AS THE MORE TRADITIONAL BENEFITS SUCH AS WORK PREFERENCE AND
ORDER OF LAY-OFF AND RECALL.  WE HOLD THAT THE FAILURE TO CREDIT
PETITIONERS'"COMPENSATED SERVICE" TIME WITH THE PERIOD SPENT IN THE
ARMED SERVICES DOES NOT ACCORD PETITIONERS THE RIGHT TO BE REINSTATED
"WITHOUT LOSS OF SENIORITY" GUARANTEED BY SECS. 8(B)(B) AND (C). 

WHAT WE HAVE SAID MAKES IT UNNECESSARY TO DISCUSS IN DETAIL THE COURT
OF APPEALS' HOLDING THAT THESE ALLOWANCES DID NOT COME WITHIN THE
CONCEPTS OF "SENIORITY, STATUS, AND PAY" AND THUS WERE GOVERNED NOT BY
SEC. 8(B)(B) AND THE PART OF SEC. 8(C) RELATING TO SENIORITY BUT RATHER
BY THE CLAUSE IN SEC. 8(C) STATING THAT RETURNING VETERANS "SHALL BE
ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE
EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO
EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER
AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES  ...  ."  THE
GOVERNMENT CONTENDS THAT THE "OTHER BENEFITS" CLAUSE OF SEC. 8(C) WAS
ADDED TO THE BILL "FOR THE EXPRESS PURPOSE OF ENTITLING EMPLOYEES TO
RECEIVE, WHILE IN SERVICE, SUCH BENEFITS AS THEIR EMPLOYERS ACCORDED
EMPLOYEES ON LEAVE OF ABSENCE."  THE LEGISLATIVE HISTORY REFERRED TO IN
THE GOVERNMENT'S BRIEF PERSUASIVELY SUPPORTS SUCH A PURPOSE.  (FN3) 

THIS ARGUMENT OF THE GOVERNMENT - THAT THE "INSURANCE OR OTHER
BENEFITS" CLAUSE WAS PUT IN TO PROVIDE THESE COMPANY BENEFITS FOR THE
SERVICEMAN AT THE TIME HE WAS IN THE ARMED FORCES - ALSO FINDS SOME
SUPPORT IN THE FACT THAT SEC. 8(C) PROVIDES THAT THE SERVICEMAN WOULD
BE ENTITLED TO THESE BENEFITS ONLY IF THEY WERE "IN EFFECT WITH THE
EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES  ...
."  WITHOUT ATTEMPTING IN THIS CASE TO DETERMINE THE EXACT SCOPE OF
THIS PROVISION OF SEC. 8(C) IT IS ENOUGH TO SAY THAT WE CONSIDER THAT
IT WAS INTENDED TO ADD CERTAIN PROTECTIONS TO THE VETERAN AND NOT TO
TAKE AWAY THOSE WHICH ARE GRANTED HIM BY SEC. 8(B)(B) AND THE OTHER
CLAUSES OF SEC. 8(C). 

SINCE THE COURT OF APPEALS HELD THAT THE PROVISIONS OF SEC. 8(B)(B)
DID NOT APPLY TO SEPARATION ALLOWANCES IT FOUND IT UNNECESSARY TO
DECIDE AN ALTERNATIVE GROUND WHICH THE RAILROAD CONTENDED SHOULD CAUSE
REVERSAL.  THAT CONTENTION WAS THAT SINCE THE AGREEMENT BETWEEN THE
RAILROAD AND THE UNION WAS ENTERED INTO MORE THAN ONE YEAR AFTER
PETITIONERS WERE RESTORED TO THEIR EMPLOYMENT, THE ACT HAS NO
APPLICATION TO ANY RIGHTS CREATED BY THE AGREEMENT.  THIS ARGUMENT
RESTED ON THAT PART OF SEC. 8(C) WHICH PROVIDES THAT A VETERAN WHO IS
RESTORED TO EMPLOYMENT "SHALL NOT BE DISCHARGED FROM SUCH POSITION
WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION."  THE DISTRICT
COURT REJECTED THE CONTENTION AS HAVING NO MERIT.  WE AGREE WITH THE
DISTRICT COURT AND BELIEVE THIS CONTENTION TO BE SO WHOLLY WITHOUT
MERIT THAT THE CASE NEED NOT BE REMANDED TO THE COURT OF APPEALS FOR
ITS DECISION ON THE POINT.  IN OAKLEY V. LOUISVILLE & N.R. CO., 338
U.S. 278, 284, WE SAID: 

"THE EXPIRATION OF THE YEAR DID NOT TERMINATE THE VETERAN'S RIGHT TO
THE SENIORITY TO WHICH HE WAS ENTITLED BY VIRTUE OF THE ACT'S TREATMENT
OF HIM AS THOUGH HE HAD REMAINED CONTINUOUSLY IN HIS CIVILIAN
EMPLOYMENT; NOR DID IT OPEN THE DOOR TO DISCRIMINATION AGAINST HIM, AS
A VETERAN  ...  . HIS SENIORITY STATUS  ...  CONTINUES BEYOND THE FIRST
YEAR OF HIS REEMPLOYMENT  ...  ." 

WHAT WE SAID THERE GOVERNS THIS CASE.  THE DISTRICT COURT WAS CORRECT
IN REJECTING THIS CONTENTION OF THE RAILROAD. 

IN THE COURT OF APPEALS THE RAILROAD ALSO CONTENDED THAT THE DISTRICT
COURT HAD IMPROPERLY COMPUTED THE INTEREST OWING ON THE JUDGMENT
AWARDED THE PLAINTIFFS.  BECAUSE OF ITS HOLDING THAT PETITIONERS WERE
ENTITLED TO NO RECOVERY AT ALL THE COURT OF APPEALS DECLINED TO DECIDE
THE QUESTION OF INTEREST.  THE RECORD BEFORE US DOES NOT PRESENT THAT
QUESTION WITH SUFFICIENT CLARITY FOR US TO PASS UPON IT. 

WE AFFIRM THE JUDGMENT OF THE DISTRICT COURT HOLDING THAT PETITIONERS
ARE ENTITLED TO RECOVER FROM THE RAILROAD THE STIPULATED DAMAGES DUE
THEM BECAUSE THEY ARE ENTITLED TO CREDIT FOR THE FULL AMOUNT OF TIME
SERVED IN THE ARMED FORCES IN CALCULATING THEIR SEVERANCE PAY.  BUT THE
CAUSE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER CONSIDERATION OF
THE INTEREST CONTENTION.  REVERSED AND REMANDED. 

FN1  54 STAT. 890, AS AMENDED, 50 U.S.C. APP. SEC. 308 (1946 ED). 
TRAINING AND SERVICE ACT, 62 STAT. 614, AS AMENDED, 50 U.S.C. APP. SEC.
459 (1964 ED.). 

FN2  THE DEPARTMENT OF JUSTICE IS REPRESENTING PETITIONERS IN THIS
CASE PURSUANT TO SEC. 8(E) OF THE 1940 ACT.    FN3  SENATOR SHEPPARD IN
EXPLAINING AN AMENDMENT WHICH INCLUDED THE "OTHER BENEFITS" PROVISION
SAID: 

"THAT AMENDMENT WOULD MAKE CERTAIN THAT ALL TRAINEES WOULD RECEIVE
THE SAME INSURANCE AND OTHER BENEFITS AS THOSE WHO ARE ON FURLOUGH OR
LEAVE OF ABSENCE IN PRIVATE LIFE.  IT SEEMS TO ME TO BE A GOOD
SUGGESTION."  86 CONG. REC. 10914. 

AND CONGRESSMAN MAY, THE CHAIRMAN OF THE HOUSE COMMITTEE ON MILITARY
AFFAIRS, HAD THIS COLLOQUY WITH ANOTHER CONGRESSMAN ON THE SAME
QUESTION: 

"MR. MILLER.  IN REFERENCE TO INSURANCE, WILL THAT APPLY TO GROUP
INSURANCE?  MANY INDUSTRIAL PLANTS, OF COURSE, CARRY GROUP INSURANCE. 
UNDER THOSE CONTRACTS THEY CONTINUE THEIR PARTICIPATION WHILE A MAN IS
ON VACATION OR ON FURLOUGH.  WOULD THEY CONTINUE THOSE POLICIES IN
FORCE? 

MR. MAY.  THIS WOULD CONTINUE THEM IN FORCE AND THAT IS THE VERY
PURPOSE OF THE LEGISLATION."  86 CONG. REC. 11702. 

THE CHIEF JUSTICE TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :





STEVENS V. MARKS 383 U.S. 234 


NO. 210.  ARGUED JANUARY 24, 1966 - DECIDED FEBRUARY 28, 1966* - 22 APP.
DIV. 2D 683, 253 N.Y.S.2D 401; 345 F.2D 305, REVERSED. 

*TOGETHER WITH NO. 290, STEVENS V. MCCLOSKEY, SHERIFF, ON CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. 


PETITIONER, A NEW YORK CITY POLICE OFFICER, WAS SUBPOENAED BEFORE ONE
OF THE GRAND JURIES INVESTIGATING ALLEGED BRIBERY OF PUBLIC OFFICIALS. 
HE APPEARED WITHOUT COUNSEL AND SIGNED A WAIVER OF IMMUNITY UPON THE
PROSECUTOR'S ADVICE THAT FAILURE TO DO SO WOULD SUBJECT HIM TO REMOVAL
FROM PUBLIC OFFICE.  THE NEW YORK CONSTITUTION AND THE NEW YORK CITY
CHARTER PROVIDE FOR FORFEITURE OF EMPLOYMENT BY A PUBLIC EMPLOYEE WHO
INVOKES THE PRIVILEGE AGAINST SELF-INCRIMINATION OR WHO REFUSES TO
WAIVE IMMUNITY FROM PROSECUTION.  THE WAIVER COVERED BOTH THE PRIVILEGE
AGAINST SELF-INCRIMINATION AND IMMUNITY FROM PROSECUTION.  PETITIONER
WAS ASKED A FEW QUESTIONS AND GIVEN A QUESTIONNAIRE TO FILL OUT.  HE
APPEARED LATER BEFORE ANOTHER GRAND JURY AND, HAVING CONSULTED COUNSEL,
REFUSED TO SIGN A WAIVER OF IMMUNITY.  HE WAS THEREAFTER DISCHARGED AS
A POLICE OFFICER.  HE WAS SUMMONED AGAIN BEFORE THE FIRST GRAND JURY,
REFUSED ON THE BASIS OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO
ANSWER QUESTIONS AND AGAIN REFUSED FOR THOSE REASONS WHEN THEREAFTER
DIRECTED BY A JUDGE TO ANSWER.  FOLLOWING A HEARING AT WHICH PETITIONER
CONTENDED THAT THE WAIVER WAS INVALID OR, ALTERNATIVELY, HAD BEEN
EFFECTIVELY WITHDRAWN, HE WAS FOUND GUILTY OF CONTEMPT AND SENTENCED. 
HE APPEALED TO A STATE APPELLATE COURT WHICH DISMISSED THE APPEAL IN
RELIANCE ON REGAN V.  NEW YORK, 349 U.S. 58, REASONING THAT IF THE
IMMUNITY WAIVER WAS INVALID PETITIONER WOULD HAVE RECEIVED IMMUNITY
FROM PROSECUTION UNDER NEW YORK STATUTES, AND THAT IF THE WAIVER WAS
VALID HE NO LONGER HAD A PRIVILEGE NOT TO TESTIFY.  LEAVE TO APPEAL
THAT DISMISSAL WAS DENIED.  WHILE REVIEW OF THE FOREGOING CONTEMPT
CONVICTION (BEFORE THIS COURT NOW IN NO. 210) WAS STILL PENDING,
PETITIONER WAS AGAIN SUMMONED BEFORE THE FIRST GRAND JURY, CLAIMED HIS
PRIVILEGE, REFUSED TO ANSWER, WAS BROUGHT BEFORE ANOTHER JUDGE, REFUSED
AGAIN TO ANSWER, WAS ADJUDGED GUILTY OF CONTEMPT AND SERVED THE
SENTENCE IMPOSED.  PETITIONER WAS SUMMONED BEFORE THE GRAND JURY FOR A
THIRD TIME; ON REFUSING TO ANSWER, HE WAS AGAIN ADJUDGED GUILTY OF
CONTEMPT.  WHILE SERVING THE SENTENCE IMPOSED FOR THIS THIRD CONTEMPT
PETITIONER SOUGHT HABEAS CORPUS IN THE FEDERAL DISTRICT COURT, WHICH ON
THE BASIS OF REGAN DENIED RELIEF.  THE COURT OF APPEALS AFFIRMED, AND
THIS COURT GRANTED THE PETITION FOR CERTIORARI (NO. 290).  HELD: 

1.  PETITIONER'S WITHDRAWAL OF THE WAIVER WAS, AS A MATTER OF FEDERAL
LAW, EFFECTIVE.  PP. 238-244. 

2.  SINCE THE WAIVER HAD BEEN EFFECTIVELY WITHDRAWN, PETITIONER'S
PRIVILEGE AGAINST SELF-INCRIMINATION WAS AVAILABLE.  MALLOY V. HOGAN,
378 U.S. 1.  PP. 238-239. 

3.  UNDER THE APPLICABLE NEW YORK STATUTES, IMMUNITY IS CONFERRED
ONLY BY TAKING AFFIRMATIVE STEPS IN STRICT COMPLIANCE WITH THE CURRENT
IMMUNITY STATUTES AND NO SUCH STEPS WERE TAKEN IN THIS CASE.  PP. 241
243. 

4.  HAVING SUGGESTED TO PETITIONER THAT HE HAD NO IMMUNITY FROM
PROSECUTION, NEW YORK CANNOT THEREAFTER CLAIM THAT IN FACT PETITIONER
DID HAVE IMMUNITY WITHIN THE "FAIR WARNING" REQUIREMENT OF RALEY V.
OHIO, 360 U.S. 423.  PP. 240-241; 244-246. 

STEVENS V. MARKS, NEW YORK SUPREME COURT JUSTICE. 

CERTIORARI TO THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW
YORK, FIRST JUDICIAL DEPARTMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A MEMBER OF THE NEW YORK CITY POLICE DEPARTMENT, WAS
SUMMARILY DISCHARGED ON JULY 15, 1964.  ON JUNE 26 HE HAD BEEN
SUBPOENAED BEFORE A NEW YORK COUNTY GRAND JURY, KNOWN AS THE FIRST JUNE
1964 GRAND JURY.  BEFORE APPEARING IN THE GRAND JURY ROOM, AN ASSISTANT
DISTRICT ATTORNEY ADVISED HIM TO SIGN A WAIVER OF IMMUNITY, SAYING THAT
OTHERWISE HE WOULD BE SUBJECT TO REMOVAL FROM PUBLIC OFFICE.  (FN1)  HE
SIGNED THE WAIVER.  (FN2)  THEREUPON HE WAS AN UNSWORN WITNESS BEFORE
THE GRAND JURY: 

"Q. LIEUTENANT  ...  STEVENS, AS WAS POINTED OUT TO YOU EARLIER, THIS
GRAND JURY IS INQUIRING INTO THE CRIMES OF CONSPIRACY TO COMMIT THE
CRIME OF BRIBERY OF A PUBLIC OFFICER AND THE CRIME OF BRIBERY OF A
PUBLIC OFFICER; DO YOU UNDERSTAND THAT? 

"A. I DO. 

"Q. DO YOU UNDERSTAND FURTHER THAT YOU HAVE BEEN CALLED HERE AS A
POTENTIAL DEFENDANT, NOT AS A WITNESS; DO YOU UNDERSTAND THAT? 

"A. I DO. 

"Q. DO YOU UNDERSTAND THAT UNDER THE CONSTITUTION OF THE UNITED
STATES YOU HAVE THE RIGHT TO REFUSE TO ANSWER ANY QUESTION THAT MIGHT
TEND TO INCRIMINATE YOU; DO YOU UNDERSTAND THAT? 

"A. I DO. 

"Q. DO YOU UNDERSTAND FURTHER THAT UNDER THE NEW YORK STATE
CONSTITUTION, AND NEW YORK CITY CHARTER, A PUBLIC OFFICER IS REQUIRED,
IF HE DESIRES TO CONTINUE TO HOLD HIS PUBLIC POSITION, TO SIGN A
LIMITED WAIVER OF IMMUNITY; DO YOU UNDERSTAND THAT? 

"A. I DO. 

"Q. DO YOU UNDERSTAND THAT THAT MEANS THAT IF YOU SIGN A LIMITED
WAIVER OF IMMUNITY WHICH REQUIRES YOU TO ANSWER QUESTIONS CONCERNING
THE CONDUCT OF YOUR PUBLIC OFFICE, THAT WHAT YOU SAY WILL BE TAKEN DOWN
AND RECORDED, AND THAT SHOULD THIS GRAND JURY VOTE A TRUE BILL AGAINST
YOU, THAT IS AN INDICTMENT - TO INDICT YOU FOR A CRIME, THE TESTIMONY
YOU GIVE CAN AND WILL BE USED AGAINST YOU.  DO YOU UNDERSTAND THAT? 

"A. I DO. 

"Q. ARE YOU PREPARED TO SIGN A WAIVER OF IMMUNITY? 

"A. I AM." 

THAT PETITIONER'S WAIVER OF "ALL BENEFITS, PRIVILEGES, RIGHTS AND
IMMUNITY WHICH I WOULD OTHERWISE OBTAIN FROM INDICTMENT, PROSECUTION
AND PUNISHMENT" COVERED BOTH THE PRIVILEGE AGAINST SELF-INCRIMINATION
AND IMMUNITY FROM PROSECUTION (FN3) IS EVIDENCED BY THE FOREGOING
COLLOQUY. 

THEN PETITIONER WAS SWORN, ASKED A FEW QUESTIONS, GIVEN A
QUESTIONNAIRE TO FILL OUT, AND ASKED TO RETURN WITH IT COMPLETED. 

AT THESE STAGES PETITIONER HAD NO COUNSEL.  ON JULY 15, HE RETURNED
TO A DIFFERENT GRAND JURY - THE THIRD JULY 1964 GRAND JURY.  NOW HE HAD
COUNSEL AND REFUSED TO SIGN A WAIVER OF IMMUNITY.  HE WAS EXAMINED, AS
BEFORE, CONCERNING HIS KNOWLEDGE THAT TO SAVE HIS JOB HE HAD TO WAIVE
HIS IMMUNITY.   HE ACKNOWLEDGED THAT HE KNEW THE CONSEQUENCES OF HIS
REFUSAL TO WAIVE HIS IMMUNITY AND WAS EXCUSED. 

THAT SAME DAY, AS A CONSEQUENCE OF HIS REFUSAL TO WAIVE IMMUNITY
BEFORE THE THIRD JULY 1964 GRAND JURY, PETITIONER WAS DISCHARGED AS A
POLICE OFFICER. 

ON JULY 22 HE WAS AGAIN SUMMONED BEFORE THE FIRST JUNE 1964 GRAND
JURY AND PUT A CERTAIN QUESTION WHICH HE REFUSED TO ANSWER ON THE BASIS
OF HIS STATE AND FEDERAL (FN4) CONSTITUTIONAL RIGHTS.  HE WAS BROUGHT
BEFORE A JUDGE WHO DIRECTED HIM TO ANSWER THE QUESTIONS.  HE REFUSED TO
ANSWER "ON THE GROUNDS STATED IN THE STATE AND FEDERAL CONSTITUTION"
AND THE JUDGE FOUND HIM IN CONTEMPT.  ON JULY 28, A HEARING WAS HELD,
AT WHICH PETITIONER, THROUGH HIS COUNSEL, CONTENDED THAT THE WAIVER WAS
INVALID OR ALTERNATIVELY, HAD BEEN EFFECTIVELY WITHDRAWN.  IN EITHER
EVENT HIS FIFTH AMENDMENT CLAIM WAS VALID UNDER MALLOY V. HOGAN, 378
U.S. 1.  FOR IT WAS AGREED THAT "THERE IS NO CLAIM THAT THIS WITNESS
HAS BEEN GIVEN IMMUNITY."  (FN5)  AT THE CONCLUSION OF THE HEARING,
PETITIONER WAS FINED $250 AND GIVEN 30 DAYS IN THE CIVIL JAIL IN NEW
YORK CITY FOR THAT CONTEMPT.  PETITIONER PROMPTLY APPEALED TO THE
APPELLATE DIVISION OF THE NEW YORK SUPREME COURT.  WHILE THIS APPEAL
WAS PENDING, HE SOUGHT AND WAS DENIED FEDERAL HABEAS CORPUS. 
APPLICATION OF STEVENS, 234 F. SUPP. 25.  THE APPELLATE DIVISION
DISMISSED THE APPEAL, STATING ITS BELIEF THAT REGAN V. NEW YORK, 349
U.S. 58, WAS CONTROLLING.  (FN6)  22 APP. DIV. 2D 683, 253 N.Y.S.2D
401.  THE NEW YORK COURT OF APPEALS DENIED LEAVE TO APPEAL.  15 N.Y.2D
483, 205 N.E.2D 315.  THIS IS THE CONVICTION WHICH IS THE BASIS OF THE
PETITION IN NO. 210. 

THEREAFTER, ON SEPTEMBER 28, PETITIONER WAS SUMMONED AGAIN BEFORE THE
FIRST JUNE 1964 GRAND JURY.  ONCE AGAIN A QUESTION WAS PUT HIM AND ONCE
MORE HE REFUSED TO ANSWER, CLAIMING HIS PRIVILEGE WHICH, AS WE HAVE
SAID, WAS AVAILABLE TO HIM UNDER MALLOY V. HOGAN, SUPRA, IF THE WAIVER
WAS INVALID OR HAD BEEN EFFECTIVELY WITHDRAWN.  HE WAS BROUGHT BEFORE
ANOTHER JUDGE WHO DIRECTED HIM TO ANSWER THE QUESTION.  ON REFUSAL,
PETITIONER WAS HELD IN CONTEMPT AND FINED $250 AND SENTENCED TO 30 DAYS
IN JAIL.  (FN7)  ON JANUARY 11, 1965, PETITIONER WAS ONCE MORE SUMMONED
BEFORE THE FIRST JUNE 1964 GRAND JURY AND REFUSED AGAIN TO ANSWER A
QUESTION ON THE GROUND THAT IT WAS INCRIMINATING.  HE WAS TAKEN BEFORE
A JUDGE AND DIRECTED TO ANSWER.  ON HIS REFUSAL HE WAS FINED $250 AND
SENTENCED TO 30 DAYS.  WHILE SERVING THAT JAIL TERM, PETITIONER ONCE
AGAIN SOUGHT A WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT
COURT.  THE COURT DENIED RELIEF, INDICATING THAT IT REGARDED REGAN V.
NEW YORK, SUPRA, BINDING AUTHORITY.  UNITED STATES EX REL. STEVENS V.
MCCLOSKEY, 239 F. SUPP.  419.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT AFFIRMED.  345 F.2D 305.  IT IS THIS LAST CONVICTION THAT IS
THE BASIS OF PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS IN
NO. 290. 

BOTH CASES ARE HERE ON WRITS OF CERTIORARI.  382 U.S. 809. 

NOT ONCE IN ANY OF THE HEARINGS WAS PETITIONER TOLD THAT IF HE
RESPONDED WITH INCRIMINATING ANSWERS, THE STATE IMMUNITY STATUTE MIGHT
PRECLUDE A PROSECUTION BASED ON SUCH ANSWERS.  ON THE CONTRARY, THE
ASSISTANT DISTRICT ATTORNEY MADE IT CLEAR THAT THE VIEW OF THE
PROSECUTION WAS THAT PETITIONER HAD WAIVED ANY RIGHTS HE MIGHT HAVE HAD
UNDER THE IMMUNITY STATUTE: 

"Q. AND WAS IT FURTHER TOLD TO YOU THAT IT MEANT THAT IF YOU SIGNED A
LIMITED WAIVER OF IMMUNITY, WHICH REQUIRED YOU TO ANSWER QUESTIONS
CONCERNING YOUR CONDUCT IN PUBLIC OFFICE, THAT WHAT YOU SAID WOULD BE
TAKEN DOWN AND RECORDED AND THAT SHOULD THIS GRAND JURY VOTE A TRUE
BILL AGAINST YOU, THAT IS AN INDICTMENT, THE TESTIMONY YOU GAVE COULD
BE AND WILL BE USED AGAINST YOU?  WAS THAT EXPLAINED TO YOU? 

"A. I BELIEVE IT WAS, YES, SIR. 

"Q. AND DID YOU TELL THIS GRAND JURY YOU UNDERSTOOD THAT? 

"A. THAT'S RIGHT." 

THE ASSISTANT DISTRICT ATTORNEY WENT ON TO SAY: 

"Q. AND DO YOU UNDERSTAND FURTHER THAT REGARDLESS OF WHAT YOUR LAWYER
MAY SAY OR WHAT ANYONE ELSE MAY SAY, THAT IT IS THE CONTENTION OF THE
PEOPLE THAT THIS IS A VALID WAIVER OF IMMUNITY AND THAT YOU DO NOT HAVE
IMMUNITY?  DO YOU UNDERSTAND THAT? 

"A. YES, SIR." 

AS WE READ THIS RECORD, PETITIONER WAS LED TO BELIEVE THAT HE COULD
INVOKE HIS FEDERAL PRIVILEGE AGAINST SELF-INCRIMINATION ONLY ON PAIN OF
LOSING HIS PUBLIC EMPLOYMENT; THAT TO RETAIN HIS JOB HE WAS OBLIGED TO
SIGN A WAIVER; AND THAT SHOULD HE SIGN A WAIVER HE WOULD HAVE NO
IMMUNITY IN ANSWERING INCRIMINATING QUESTIONS.  THROUGHOUT THE VARIOUS
APPEARANCES PETITIONER MADE BEFORE THE GRAND JURIES AND IN THE NEW YORK
COURTS WHICH HELD HIM IN CONTEMPT, THE PROSECUTION CONSISTENTLY
MAINTAINED THAT PETITIONER'S WAIVER WAS VALID.  AND THERE WAS NEVER ANY
SUGGESTION THAT IF, AS PETITIONER CONTENDED, THE WAIVER WERE INVALID OR
EFFECTIVELY WITHDRAWN, HE MIGHT OBTAIN A VALID IMMUNITY FROM SUBSEQUENT
PROSECUTION. 

HERE LIES THE DIFFERENCE BETWEEN THIS CASE AND REGAN V. NEW YORK. 
FOR AFTER THAT CASE AROSE, NEW YORK AMENDED ITS IMMUNITY STATUTE. 
INSTEAD OF CONFERRING AUTOMATIC IMMUNITY ON ALL WITNESSES WHO TESTIFY
BEFORE THE GRAND JURY, IMMUNITY IS NOW CONFERRED "ONLY BY STRICT
COMPLIANCE WITH THE PROCEDURAL REQUIREMENTS OF OUR IMMUNITY STATUTES
PROPERLY ENACTED  ...  ."  PEOPLE V. LAINO, 10 N.Y.2D 161, 173, 176
N.E.2D 571, 579.  SECTION 381 OF THE PENAL LAW, AS AMENDED IN 1953,
(FN8) PROVIDES THAT IN ANY BRIBERY INVESTIGATION "THE COURT, MAGISTRATE
OR GRAND JURY, OR THE COMMITTEE MAY CONFER IMMUNITY IN ACCORDANCE WITH
THE PROVISIONS" OF SEC. 2447.  THE LATTER SECTION PROVIDES THAT AN
INVESTIGATING GRAND JURY IS AMONG THOSE "AUTHORIZED TO CONFER IMMUNITY"
IN A PROCEEDING RELATING TO BRIBERY, PROVIDED THAT CERTAIN PROCEDURAL
STEPS ARE TAKEN:  (A) THE WITNESS MUST REFUSE TO ANSWER ON THE GROUND
OF SELF-INCRIMINATION; (B) THE GRAND JURY MUST THEN BE "EXPRESSLY
REQUESTED BY THE PROSECUTING ATTORNEY TO ORDER SUCH PERSON TO  ...
ANSWER"; (C) THE GRAND JURY MUST THEN ORDER THE PERSON TO ANSWER; (D)
THE WITNESS MUST THEN COMPLY WITH THE ORDER TO ANSWER; AND (E)
THEREUPON "IMMUNITY SHALL BE CONFERRED."  UNDER THESE LAWS, IMMUNITY IS
NOT AUTOMATICALLY CONFERRED "MERELY BY TESTIFYING."  PEOPLE V. LAINO,
SUPRA, AT 172, 176 N.E.2D, AT 578.  "COMPLETE IMMUNITY FROM PROSECUTION
MAY BE OBTAINED BY A PROSPECTIVE DEFENDANT, OR ANY WITNESS, ONLY BY
STRICT COMPLIANCE WITH THE PROCEDURAL REQUIREMENTS OF OUR IMMUNITY
STATUTES PROPERLY ENACTED  ...  OR BY VIRTUE OF IMMUNITY PROVISIONS IN
OUR STATE CONSTITUTION  ...  ."  ID., AT 173, 176 N.E.2D, AT 579. 

IN THE PRESENT CASE NEITHER THE PROSECUTOR NOR THE GRAND JURY HAD ANY
THOUGHT OF CONFERRING IMMUNITY ON PETITIONER.  THEY TRIED TO HOLD
PETITIONER TO HIS WAIVER.  YET IF HE HAD GONE AHEAD AND TESTIFIED AND
IT WERE ESTABLISHED IN A LATER PROSECUTION THAT HIS WAIVER WAS INVALID,
IT SEEMS THAT HE WOULD HAVE BEEN BEREFT OF ANY IMMUNITY UNDER THE NEW
YORK LAW, SINCE THE REQUIREMENTS OF "STRICT COMPLIANCE" HAD NOT BEEN
MET.  (FN9)  ACCORDINGLY, ONLY IF THE PETITIONER'S WAIVER WAS VALID AND
BINDING WAS HE BOUND TO TESTIFY - AT LEAST UNTIL THE AFFIRMATIVE STEPS
NECESSARY TO CONFER IMMUNITY WERE TAKEN.  WHETHER OR NOT PETITIONER
COULD VALIDLY ASSERT THE PRIVILEGE AGAINST SELF-INCRIMINATION DEPENDS
ON WHETHER THE WAIVER WAS, AS HE CONTENDS, INVALID OR EFFECTIVELY
WITHDRAWN.  ALTHOUGH THE TRIAL JUDGE WHICH FIRST FOUND HIM IN CONTEMPT
RULED THAT THE WAIVER WAS VALID, THE APPELLATE DIVISION CONSIDERED THAT
QUESTION IRRELEVANT IN LIGHT OF REGAN V. NEW YORK. 

SINCE, AS WE HAVE SEEN, REGAN IS INAPPOSITE, WE CONCLUDE THAT AT THE
TIME PETITIONER WAS HELD TO BE IN CONTEMPT, HE HAD - AS A MATTER OF
FEDERAL CONSTITUTIONAL LAW - EFFECTIVELY WITHDRAWN THE WAIVER.  WHEN
PETITIONER WAS ASKED TO WAIVE HIS FEDERALLY SECURED RIGHT TO REFUSE TO
ANSWER THE QUESTIONS, HE WAS INFORMED THAT FAILURE TO EXECUTE THE
WAIVER WOULD RESULT IN THE LOSS OF HIS PUBLIC EMPLOYMENT.  ALTHOUGH IT
PUT PETITIONER TO "A CHOICE BETWEEN THE ROCKS AND THE WHIRLPOOL" (FROST
TRUCKING CO. V. RAILROAD COMM'N, 271 U.S. 583, 593), NEW YORK SAYS
THAT, HAVING "VOLUNTARILY" WAIVED HIS CONSTITUTIONAL RIGHTS, PETITIONER
MAY NOT THEREAFTER CLAIM HIS PRIVILEGE.  AT PETITIONER'S FIRST
APPEARANCE BEFORE A GRAND JURY AFTER HAVING CONSULTED WITH COUNSEL,
PETITIONER ATTEMPTED TO DO JUST THAT:  HE ANNOUNCED HIS INTENTION TO
WITHDRAW HIS WAIVER. 

EVEN WERE WE TO ASSUME, WITHOUT DECIDING, THAT A STATE MAY
CONSTITUTIONALLY EXACT, ON PAIN OF LOSS OF EMPLOYMENT AND IN THE
ABSENCE OF COUNSEL, THE WAIVER OF A CONSTITUTIONAL RIGHT, WE WOULD BE
UNABLE TO FIND ANY JUSTIFICATION FOR DENYING THE RIGHT TO WITHDRAW IT.
(FN10)  WE HOLD THAT PETITIONER'S EFFORT TO WITHDRAW THE WAIVER WAS
EFFECTIVE, AND THAT IN THE ABSENCE OF AN IMMUNITY PROVISION CLEARLY
MADE APPLICABLE TO HIM, PETITIONER COULD PROPERLY STAND ON HIS
PRIVILEGE AND REFUSE TO ANSWER POTENTIALLY INCRIMINATING QUESTIONS. 

ONE FINAL POINT REMAINS.  ALTHOUGH THE COURTS BELOW DID NOT CONSIDER
THE POSSIBILITY, THE BRIEFS SUGGEST THAT PETITIONER MIGHT, QUITE APART
FROM THE STATUTORY IMMUNITY CONFERRED BY SEC. 2447, HAVE BEEN GIVEN
IMMUNITY BY OPERATION OF LAW.  IT IS SAID THAT, AS THE NEW YORK COURTS
HAVE INTERPRETED THE STATE CONSTITUTION, A POTENTIAL DEFENDANT MAY NOT
BE COMPELLED TO APPEAR BEFORE A GRAND JURY; ANY TESTIMONY GIVEN BY HIM
DURING SUCH AN APPEARANCE MAY NOT THEREAFTER BE USED AGAINST HIM. 
PEOPLE V. STEUDING, 6 N.Y.2D 214, 160 N.E.2D 468; PEOPLE V. LAINO, 10
N.Y.2D 161, 176 N.E.2D 571.  THUS IT MIGHT BE THOUGHT THAT THIS
"AUTOMATIC" IMMUNITY RESULTING FROM PETITIONER'S APPEARANCE BEFORE THE
GRAND JURY MAKES THIS CASE PRECISELY IDENTICAL WITH REGAN.  WE CANNOT
AGREE.  WE NEED NOT STOP TO DETERMINE WHETHER THE IMMUNITY SAID TO BE
CONFERRED HERE - WHICH MERELY PREVENTS THE USE OF THE DEFENDANT'S
TESTIMONY OR ITS FRUITS IN ANY SUBSEQUENT PROSECUTION BUT, APPARENTLY,
DOES NOT PRECLUDE PROSECUTION BASED ON "INDEPENDENT" EVIDENCE (PEOPLE
V. LAINO, SUPRA; PEOPLE V. RYAN, 11 APP. DIV. 2D 155, 204 N.Y.S.2D 1) -
CONSTITUTES THAT "ABSOLUTE IMMUNITY AGAINST FURTHER PROSECUTION" ABOUT
WHICH THE COURT SPOKE IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 586,
AND WHICH THE COURT SAID WAS NECESSARY IF THE PRIVILEGE WERE TO BE
CONSTITUTIONALLY SUPPLANTED.  AND SEE ALBERTSON V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, 382 U.S. 70, 79-81.  FOR EVEN IF THE STEUDING
LAINO IMMUNITY WERE AVAILABLE TO PETITIONER, HE WAS LED TO BELIEVE  -
AS WE HAVE ALREADY SEEN - THAT NO IMMUNITY PROVISIONS WERE APPLICABLE
TO HIS CASE.    IN THIS SENSE THE CASE IS VERY CLOSE TO RALEY V. OHIO,
360 U.S. 423, WHERE THE EXISTENCE OF IMMUNITY WAS NEVER SUGGESTED TO
THE WITNESSES, LATER HELD IN CONTEMPT.  IN THAT CASE THE STATE SUPREME
COURT HELD THAT THE IMMUNITY UNDER THE STATUTE WAS AUTOMATICALLY
AVAILABLE TO THE WITNESSES AND ADVICE OF THE INVESTIGATING AGENCY WAS
NOT NECESSARY.  BUT WE REVERSED THOSE JUDGMENTS OF CONVICTION SINCE
WHAT THE STATE WAS DOING WAS "CONVICTING A CITIZEN FOR EXERCISING A
PRIVILEGE WHICH THE STATE CLEARLY HAD TOLD HIM WAS AVAILABLE TO HIM"
(ID., AT 438), AND WE WENT ON TO SAY: 

"A STATE MAY NOT ISSUE COMMANDS TO ITS CITIZENS, UNDER CRIMINAL
SANCTIONS, IN LANGUAGE SO VAGUE AND UNDEFINED AS TO AFFORD NO FAIR
WARNING OF WHAT CONDUCT MIGHT TRANSGRESS THEM.  LANZETTA V. NEW JERSEY,
306 U.S. 451.  INEXPLICABLY CONTRIDICTORY COMMANDS IN STATUTES
ORDAINING CRIMINAL PENALTIES HAVE, IN THE SAME FASHION, JUDICIALLY BEEN
DENIED THE FORCE OF CRIMINAL SANCTIONS.  UNITED STATES V. CARDIFF, 344
U.S. 174.  HERE THERE WERE MORE THAN COMMANDS SIMPLY VAGUE OR EVEN
CONTRADICTORY.  THERE WAS ACTIVE MISLEADING.  CF. JOHNSON V. UNITED
STATES, 318 U.S. 189, 197.  THE STATE SUPREME COURT DISMISSED THE
STATEMENTS OF THE COMMISSION AS LEGALLY ERRONEOUS, BUT THE FACT REMAINS
THAT AT THE INQUIRY THEY WERE THE VOICE OF THE STATE MOST PRESENTLY
SPEAKING TO THE APPELLANTS.  WE CANNOT HOLD THAT THE DUE PROCESS CLAUSE
PERMITS CONVICTIONS TO BE OBTAINED UNDER SUCH CIRCUMSTANCES."  ID., AT
438-439. 

RALEY DEMONSTRATES THAT THE STATE MAY NOT SUBSTITUTE FOR THE
PRIVILEGE AGAINST SELF-INCRIMINATION AN INTRICATE SCHEME FOR CONFERRING
IMMUNITY AND THEREAFTER HOLD IN CONTEMPT THOSE WHO FAIL FULLY TO
PERCEIVE ITS SUBTLETIES.  A WITNESS HAS, WE THINK, A CONSTITUTIONAL
RIGHT TO STAND ON THE PRIVILEGE AGAINST SELF-INCRIMINATION UNTIL IT HAS
BEEN FAIRLY DEMONSTRATED TO HIM THAT AN IMMUNITY, AS BROAD IN SCOPE AS
THE PRIVILEGE IT REPLACES, IS AVAILABLE AND APPLICABLE TO HIM.  (FN11)
THIS, IT SEEMS TO US, IS THE TEACHING OF RALEY, AND ACCORDINGLY THE
STEUDING-LAINO IMMUNITY - IF OTHERWISE APPLICABLE - CANNOT NOW BE
INVOKED TO VALIDATE THESE CONTEMPT CONVICTIONS.  REVERSED. 

FN1  ARTICLE I, SEC. 6, OF THE NEW YORK CONSTITUTION PROVIDES IN
PART: 

"NO PERSON SHALL BE SUBJECT TO BE TWICE PUT IN JEOPARDY FOR THE SAME
OFFENSE; NOR SHALL HE BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS
AGAINST HIMSELF, PROVIDING, THAT ANY PUBLIC OFFICER WHO, UPON BEING
CALLED BEFORE A GRAND JURY TO TESTIFY CONCERNING THE CONDUCT OF HIS
PRESENT OFFICE OR OF ANY PUBLIC OFFICE HELD BY HIM WITHIN FIVE YEARS
PRIOR TO SUCH GRAND JURY CALL TO TESTIFY, OR THE PERFORMANCE OF HIS
OFFICIAL DUTIES IN ANY SUCH PRESENT OR PRIOR OFFICES, REFUSES TO SIGN A
WAIVER OF IMMUNITY AGAINST SUBSEQUENT CRIMINAL PROSECUTION OR TO ANSWER
ANY RELEVANT QUESTION CONCERNING SUCH MATTERS BEFORE SUCH GRAND JURY,
SHALL BY VIRTUE OF SUCH REFUSAL, BE DISQUALIFIED FROM HOLDING ANY OTHER
PUBLIC OFFICE OR PUBLIC EMPLOYMENT FOR A PERIOD OF FIVE YEARS FROM THE
DATE OF SUCH REFUSAL TO SIGN A WAIVER OF IMMUNITY AGAINST SUBSEQUENT
PROSECUTION, OR TO ANSWER ANY RELEVANT QUESTIONS CONCERNING SUCH
MATTERS BEFORE SUCH GRAND JURY, AND SHALL BE REMOVED FROM HIS PRESENT
OFFICE BY THE APPROPRIATE AUTHORITY OR SHALL FORFEIT HIS PRESENT OFFICE
AT THE SUIT OF THE ATTORNEY-GENERAL." 

FN2  THE WAIVER READ IN PART: 

"  ...  ALL BENEFITS, PRIVILEGES, RIGHTS AND IMMUNITY WHICH I WOULD
OTHERWISE OBTAIN FROM INDICTMENT, PROSECUTION AND PUNISHMENT FOR OR ON
ACCOUNT OF, REGARDING OR RELATING TO ANY MATTER, TRANSACTION OR THING,
CONCERNING THE CONDUCT OF MY OFFICE OR THE PERFORMANCE OF MY OFFICIAL
DUTIES, OR THE PROPERTY, GOVERNMENT OR AFFAIRS OF THE STATE OF NEW YORK
OR OF ANY COUNTY INCLUDED WITHIN ITS TERRITORIAL LIMITS, OR THE  ...
OFFICIAL CONDUCT OF ANY OFFICER OF THE CITY OR OF ANY SUCH COUNTY,
CONCERNING ANY OF WHICH MATTERS, TRANSACTIONS OR THINGS I MAY TESTIFY
OR PRODUCE EVIDENCE, DOCUMENTARY OR OTHERWISE, BEFORE THE 1ST, 1964
GRAND JURY IN THE COUNTY OF NEW YORK, IN THE INVESTIGATION BEING
CONDUCTED BY SAID GRAND JURY." 

FN3  THIS WAS THE VIEW OF THE APPELLATE DIVISION WHICH, WHEN
AFFIRMING PETITIONER'S FIRST CONTEMPT CONVICTION SAID:  "IF THE WAIVER
OF IMMUNITY IS STILL VALID, PETITIONER NO LONGER HAS ANY PRIVILEGE TO
REFUSE TO TESTIFY."  22 APP. DIV. 2D 683, 684, 253 N.Y.S.2D 401, 402. 

FN4  MALLOY V. HOGAN, 378 U.S. 1, HOLDING THAT THE FOURTEENTH
AMENDMENT GUARANTEED A WITNESS THE PROTECTION OF THE FIFTH AMENDMENT'S
PRIVILEGE AGAINST SELF-INCRIMINATION, WAS DECIDED JUNE 15, 1964. 

FN5  PETITIONER'S COUNSEL MADE THE FOLLOWING STATEMENT:  "MAY WE ALSO
HAVE THE RECORD CLARIFIED, YOUR HONOR.  IT IS MY UNDERSTANDING, BASED
ON WHAT WAS SAID HERE THE LAST TIME IN COURT BEFORE YOUR HONOR, THAT
THERE IS NO CLAIM THAT THIS WITNESS HAS BEEN GIVEN IMMUNITY.  THE CLAIM
IS THAT HE HAS SIGNED A VALID WAIVER AND THAT HE REFUSED TO TESTIFY
UNDER IT, AND THAT IS WHY YOUR HONOR HAS FOUND HIM GUILTY OF CRIMINAL
CONTEMPT, IS THAT RIGHT?  THE COURT REPLIED, "THAT COVERS THE
SITUATION." 

FN6  REGAN V. NEW YORK AROSE UNDER AN EARLIER VERSION OF THE NEW YORK
IMMUNITY LAW, WHICH CONFERRED AUTOMATIC IMMUNITY FROM PROSECUTION ON
ANYONE WHO TESTIFIED BEFORE THE GRAND JURY.  REGAN HAD, LIKE
PETITIONER, EXECUTED A WAIVER OF IMMUNITY AND LATER SOUGHT TO REPUDIATE
IT.  UNCLEAR OF HIS RIGHTS, REGAN REFUSED TO TESTIFY THOUGH ORDERED TO
DO SO.  THIS COURT AFFIRMED HIS CONTEMPT CONVICTION, REFUSING TO
CONSIDER QUESTIONS RAISED AS TO THE VALIDITY OF HIS WAIVER AND THE
EFFICACY OF HIS EFFORTS TO WITHDRAW IT.  THE COURT'S THEORY WAS THAT
REGARDLESS OF THE VALIDITY OF THE WAIVER, REGAN WAS BOUND TO ANSWER THE
QUESTIONS PUT TO HIM:  IF THE WAIVER WAS VALID AND BINDING, THEN OF
COURSE HE MUST ANSWER SINCE HE HAD WAIVED THE RIGHT TO REFUSE TO DO SO.
IF THE WAIVER WAS INVALID, THEN PETITIONER WOULD HAVE IMMUNITY FROM
PROSECUTION, AND THUS COULD NOT RELY ON THE PRIVILEGE AGAINST SELF
INCRIMINATION. 

FN7  THIS SENTENCE WAS SERVED. 

FN8  SEE REGAN V. NEW YORK, 349 U.S. 58, 59, NOTE 2 AND ACCOMPANYING
TEXT, FOR A DISCUSSION OF THE EARLIER VERSION OF THAT SECTION. 

FN9  THAT IMMUNITY WAS NEVER PROPERLY CONFERRED ON PETITIONER WAS, AS
WE READ THIS RECORD, RECOGNIZED BY PETITIONER'S COUNSEL AND BY THE
JUDGE WHICH FIRST FOUND HIM IN CONTEMPT OF COURT.  SEE NOTE 5, SUPRA,
AND ACCOMPANYING TEXT. 

FN10  AS FOR THE SUGGESTION THAT WITHDRAWAL OF THE WAIVER IN
MIDHEARING POSES AN ADMINISTRATIVE INCONVENIENCE, WE ONLY NOTE THAT
THERE WAS NO SUCH INCONVENIENCE HERE.  PETITIONER HAD ANSWERED ONLY A
FEW PERFUNCTORY QUESTIONS AT HIS FIRST APPEARANCE BEFORE THE GRAND
JURY.  HE ASSERTED HIS DESIRE TO WITHDRAW THE WAIVER IMMEDIATELY UPON
RETURNING BEFORE THE GRAND JURY. 

FN11  THE SUGGESTION THAT WE SHOULD REMAND THE CASE TO THE NEW YORK
COURTS FOR A FINDING OF WHETHER OR NOT PETITIONER WAS MISLED IS, WE
THINK, WIDE OF THE MARK.  A STATE MUST AFFIRMATIVELY DEMONSTRATE TO THE
WITNESS THAT A VALID IMMUNITY FROM PROSECUTION IS HIS BEFORE IT MAY
HOLD HIM IN CONTEMPT FOR REFUSING TO ANSWER QUESTIONS THAT WOULD
OTHERWISE BE INCRIMINATING.  WHETHER THE STATE HAS MET ITS BURDEN MUST
BE MEASURED AT THE TIME OF THE ALLEGED CONTEMPT.  A DECLARATION THAT
THERE WAS A VALID IMMUNITY UTTERED FOR THE FIRST TIME ON APPEAL WOULD
COME TOO LATE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

PROPER DISPOSITION OF THESE CASES IS RENDERED MORE DIFFICULT BECAUSE
OF SEEMING CONFUSION THAT HAS ATTENDED THEM ALL ALONG THE LINE.  IN THE
COURTS BELOW THE SIGNIFICANCE OF AN IMPORTANT NEW YORK STATUTORY
AMENDMENT WAS APPARENTLY OVERLOOKED.  THIS COURT GRANTED CERTIORARI
LIMITED TO A QUESTION WHICH, IN MY VIEW, THE RECORD DOES NOT PRESENT
AND WHICH THE COURT DOES NOT ANSWER.  (FN1)  THE JUDGMENTS BELOW ARE
NOW REVERSED ON DIFFERENT GROUNDS NEVER PROPERLY SET FORTH BY
PETITIONER.  WITH THIS BACKGROUND, A GOOD CASE COULD BE MADE FOR
DISMISSING THE WRITS AS IMPROVIDENTLY GRANTED.  HOWEVER, I BELIEVE
BRIEFING AND ARGUMENT HAVE BROUGHT TO THE FORE ERRORS SUFFICIENTLY
PLAIN TO WARRANT SETTING ASIDE THESE JUDGMENTS, ALTHOUGH MY ANALYSIS
DIFFERS FROM THE COURT'S AND I CONSIDER THAT A REMAND, AND NOT AN
OUTRIGHT REVERSAL, IS CALLED FOR. 

IT IS COMMON GROUND THAT PETITIONER CANNOT BE JAILED FOR REFUSING TO
INCRIMINATE HIMSELF UNLESS EITHER HE WAIVED HIS FEDERAL PRIVILEGE
AGAINST SELF-INCRIMINATION, OR IMMUNITY ADEQUATE TO OFFSET THAT
PRIVILEGE WAS CONFERRED UPON HIM.  TAKING UP THE FIRST POSSIBILITY -
WAIVER OF THE PRIVILEGE AGAINST SELF-INCRIMINATION - IT SEEMS TO ME
EVIDENT THAT PETITIONER WAS NEVER ASKED TO SIGN, NOR DID HE SIGN, A
WAIVER OF THAT PRIVILEGE.  WHAT THE NEW YORK CONSTITUTION AND THE NEW
YORK CITY CHARTER EXPLICITLY REQUIRE BE SIGNED, AND WHAT PETITIONER DID
IN TERMS SIGN, IS A WAIVER OF IMMUNITY FROM CRIMINAL PROSECUTION, THAT
IS, A WAIVER NOT OF THE FEDERAL PRIVILEGE BUT OF THE STATE IMMUNITY
THAT MAY BE GRANTED TO CIRCUMVENT THE PRIVILEGE.  (FN2) THAT A WAIVER
OF THE PRIVILEGE AND A WAIVER OF IMMUNITY MAY BOTH OFTEN LEAD A WITNESS
TO INCRIMINATE HIMSELF IS NO REASON TO BLUR THESE TWO DIFFERENT LEGAL
CONCEPTS.  A STATE IN EXACTING A WAIVER OF THE PRIVILEGE SHOULD TURN
SQUARE CORNERS; NEW YORK DID NOT ASK FOR NOR DID IT OBTAIN A WAIVER OF
THE PRIVILEGE IN THIS INSTANCE, SO THAT BASIS FOR JUSTIFYING THE
CONTEMPT CONVICTIONS IS OUT OF THE CASE.  THE ONLY OTHER BASIS IS A
CLAIM THAT NEW YORK HAS CONFERRED IMMUNITY UPON PETITIONER ADEQUATE TO
REPLACE THE PRIVILEGE. 

BEFORE TURNING TO THAT ISSUE, IT SHOULD BE NOTED THAT THERE CAN BE NO
REASON TO CONSIDER NOW WHETHER PETITIONER'S PURPORTED WAIVER OF
IMMUNITY WAS INEFFECTIVE OR WITHDRAWN.  IF THE COURT IS RIGHT IN SAYING
THAT NO STATUTORY IMMUNITY WAS EVER CONFERRED AND THAT IMMUNITY UNDER
THE STATE CONSTITUTION CANNOT NOW BE RELIED ON BY NEW YORK BECAUSE OF
RALEY V. OHIO, 360 U.S. 423, THEN IT IS HARDLY NECESSARY TO DECIDE IF
THIS NEVER-CONFERRED IMMUNITY WAS ADEQUATELY WAIVED OR THE WAIVER
EFFECTIVELY WITHDRAWN.  IF NEW YORK DID PROPERLY CONFER ADEQUATE
IMMUNITY AND SO OFFSET THE PRIVILEGE, THEN UNDER REGAN V. NEW YORK, 349
U.S. 58, IT IS IRRELEVANT AT THIS STAGE WHETHER PETITIONER HAS OR HAS
NOT LOST THE BENEFITS OF THAT IMMUNITY THROUGH WAIVER SINCE HE IS
OBLIGED TO TESTIFY IN EITHER EVENT.  ADEQUACY OR WITHDRAWAL OF A WAIVER
OF THE PRIVILEGE AGAINST SELF-INCRIMINATION MIGHT SOMETIMES BE RELEVANT
AT THIS STAGE, BUT NO WAIVER OF THE PRIVILEGE WAS EVEN ATTEMPTED IN
THIS INSTANCE AS I HAVE NOTED ABOVE.  ON THIS PHASE OF THE CASE, IT
ONLY REMAINS FOR ME TO DEMURE TO THE COURT'S STATEMENT THAT "WE WOULD
BE UNABLE TO FIND ANY JUSTIFICATION FOR DENYING THE RIGHT TO WITHDRAW"
THE WAIVER (PP. 243-244, ANTE).  NEW YORK HAS THE VERY DEEPEST INTEREST
IN UPROOTING AND PUNISHING MISCONDUCT BY ITS OFFICIALS; IT ALSO HAS A
NARROWER INTEREST IN HAVING AN INVESTIGATION, COMMENCED ON THE PREMISE
OF A WAIVER, NOT SUDDENLY BALKED BY THE WITNESS' CHANGE OF HEART.  IT
SEEMS TO ME THERE IS NO FEDERAL CONSTITUTIONAL REASON WHY A WITNESS WHO
HAS PROPERLY GIVEN A VOLUNTARY WAIVER EITHER OF HIS PRIVILEGE OR HIS
IMMUNITY SHOULD NOT BE HELD TO IT. 

TURNING NOW TO THE CONFERRAL OF IMMUNITY AS A MEANS OF OFFSETTING THE
PRIVILEGE AND JUSTIFYING THESE CONVICTIONS, I AGREE WITH THE COURT THAT
THE PERTINENT NEW YORK STATUTE QUITE PLAINLY IS NO LONGER AN AUTOMATIC
IMMUNITY STATUTE AND THAT IT WAS NOT BROUGHT INTO PLAY IN THIS
INSTANCE.  WHILE FURTHER CONSIDERATION ON THIS SCORE SHOULD NOT BE
FORECLOSED ON THE REMAND WHICH FOR REASONS LATER INDICATED I BELIEVE
SHOULD TAKE PLACE HERE, PEOPLE V. LAINO, 10 N.Y.2D 161, 176 N.E.2D 571,
SEEMS FAIRLY PERSUASIVE THAT THIS LITERAL CONSTRUCTION OF THE STATUTE
IS ACCURATE.  (FN3)  DISREGARDING THE STATUTE THEN, THE CONVICTIONS CAN
STAND ONLY IF IMMUNITY ADEQUATE TO OFFSET THE PRIVILEGE FLOWED FROM THE
STATE CONSTITUTION AND IF PETITIONER WAS NOT MISLED IN HIS RELIANCE ON
THE PRIVILEGE.  FOR REASONS NOW SET FORTH, I BELIEVE THESE QUESTIONS
SHOULD BE DECIDED ONLY AFTER A REMAND TO THE STATE COURTS. 

AS CONSTRUED IN LAINO, THE NEW YORK CONSTITUTION GIVES AUTOMATIC
IMMUNITY ONLY AGAINST USE OF COMPELLED TESTIMONY AND ITS FRUITS, 10
N.Y.2D, AT 173, 176 N.E.2D, AT 579, AND THE COURT TODAY LEAVES
UNDECIDED THE QUESTION WHETHER THIS IMMUNITY IS SUFFICIENT TO SUPPLANT
THE PRIVILEGE.  WHILE THE REFERENCE TO "ABSOLUTE IMMUNITY AGAINST
FURTHER PROSECUTION" IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 586, MAY
POINT TOWARD A NEGATIVE ANSWER, I AGREE THAT THE QUESTION OUGHT NOT BE
DECIDED UNTIL IT IS NECESSARILY PRESENTED AFTER A FULL BRIEFING AND
ARGUMENT BY THE PARTIES.  IT IS PERHAPS REASON ENOUGH FOR POSTPONEMENT
THAT THE NEGATIVE ANSWER WOULD PERFORCE INVALIDATE ONE OR MORE FEDERAL
STATUTES WHICH PROTECT ONLY AGAINST LATER USE OF COMPELLED TESTIMONY. 
(FN4)  IN ADDITION, THIS COURT HAS RECENTLY EXTENDED THE FIFTH
AMENDMENT TO THE STATES, MALLOY V. HOGAN, 378 U.S. 1, AND ABOLISHED THE
"TWO SOVEREIGNTIES" RULE, MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, SO
THAT AN EXPANSIVE READING OF THE PRIVILEGE COULD HAVE A FAR MORE
SERIOUS IMPACT THAN WAS TRUE IN THE DAYS OF COUNSELMAN.  (FN5)  IN ANY
EVENT, THE QUESTION NEED NOT BE REACHED IF RALEY V. OHIO, 360 U.S. 423,
GOVERNS THE INSTANT CASE. 

AS I READ RALEY, IT HOLDS THAT THE STATE MAY NOT LEAD WITNESSES INTO
BELIEVING THAT NO IMMUNITY PROVISIONS ARE APPLICABLE AND THEN, WHEN THE
WITNESSES STAND ON THEIR PRIVILEGE, HOLD THEM IN CONTEMPT ON THE GROUND
THAT IMMUNITY PROVISIONS SUPPLANTED THE PRIVILEGE.  IN THIS CASE THE
COURT APPARENTLY BELIEVES THAT STATEMENTS OF THE PROSECUTOR AND TRIAL
COURT LED PETITIONER TO THINK THAT NO IMMUNITY PROVISIONS APPLIED TO
HIM EVEN CONTINGENTLY; IF THIS IS SO, THEN I WOULD AGREE THE STATE
CANNOT NOW RELY ON THE STATE CONSTITUTION, OR THE STATE STATUTE FOR
THAT MATTER, TO NEGATIVE PETITIONER'S PRIVILEGE.  HOWEVER, THERE ARE NO
FINDINGS ON HOW PETITIONER UNDERSTOOD THE STATEMENTS MADE TO HIM AND
THEY ARE CERTAINLY SUSCEPTIBLE OF QUITE A DIFFERENT INTERPRETATION.  IT
MAY WELL BE THAT THE STATE MEANT, AND WAS UNDERSTOOD BY THE PETITIONER,
TO CONVEY ONLY THAT IT BELIEVED PETITIONER'S WAIVER OF IMMUNITY TO BE
VALID AND IRREVOCABLE SO THAT IT WOULD ATTEMPT TO PROSECUTE HIM ON THE
BASIS OF ANY TESTIMONY HE GAVE.  ON THIS READING, IT IS QUITE POSSIBLE
THAT BOTH THE STATE AND PETITIONER BELIEVED THAT ADEQUATE IMMUNITY
PROVISIONS WERE GENERALLY APPLICABLE TO THE EXTENT OF SUPPLANTING THE
PRIVILEGE AND THAT PETITIONER WOULD BE SHIELDED AT A LATER TRIAL IF THE
STATE THERE PROVED TO BE WRONG IN ITS VIEWS ON WAIVER.  (FN6)  IF SO,
AND ASSUMING THE STATE CONSTITUTION DOES IN LAW PROVIDE ADEQUATE
IMMUNITY, THEN PETITIONER WAS OBLIGED TO TESTIFY UNDER REGAN AND WAS
NOT RELEVANTLY MISLED.  (FN7)  THE PRESENT RECORD WAS NOT FORMULATED
WITH REGARD TO THE RALEY PROBLEM, THAT ISSUE WAS NOT BRIEFED IN ITS
PRESENT FORM, AND IT SEEMS TO ME WRONG TO DECIDE THE POINT WITHOUT A
REMAND. 

I WOULD VACATE BOTH JUDGMENTS AND REMAND THE CASE TO THE STATE COURTS
(FN8) SO THE STATE MAY THERE TRY TO ESTABLISH THAT APART FROM A
POSSIBLE WAIVER ADEQUATE IMMUNITY WAS CONFERRED, AND SO THAT PETITIONER
MAY TRY TO SHOW THAT HE WAS MISLED ON THIS SCORE. 

FN1  CERTIORARI WAS LIMITED TO THE QUESTION WHETHER A LAW IS
UNCONSTITUTIONAL WHICH REQUIRES THE DISCHARGE AND BARS THE REHIRING OF
ANY PUBLIC OFFICER WHO REFUSES TO SIGN A WAIVER OF IMMUNITY AND CLAIMS
HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  382 U.S. 809. 

FN2  N.Y. CONST., ART. I, SEC. 6, REQUIRES "A WAIVER OF IMMUNITY
AGAINST SUBSEQUENT CRIMINAL PROSECUTION" AND THE NEW YORK CITY CHARTER,
SEC. 1123, REQUIRES THAT ONE "WAIVE IMMUNITY FROM PROSECUTION."  THE
DOCUMENT SIGNED BY PETITIONER STATED THAT HE WAIVED "ALL BENEFITS,
PRIVILEGES, RIGHTS AND IMMUNITY WHICH I WOULD OTHERWISE OBTAIN FROM
INDICTMENT, PROSECUTION AND PUNISHMENT  ... ."  N.Y. PENAL LAW SEC.
2446 STATES THAT WHERE ANY LAW PROVIDES THAT A PERSON SHALL NOT BE
PROSECUTED BECAUSE OF HIS TESTIMONY OR THAT TESTIMONY HE GIVES SHALL
NOT BE USED AGAINST HIM, THAT PERSON MAY FILE A STATEMENT "EXPRESSLY
WAIVING SUCH IMMUNITY OR PRIVILEGE." 

FN3  IN LAINO THE NEW YORK COURT OF APPEALS STATED THAT IMMUNITY
UNDER THE STATE STATUTES COULD BE REQUIRED ONLY "BY STRICT COMPLIANCE
WITH THE PROCEDURAL REQUIREMENTS  ...  ."  10 N.Y.2D, AT 173, 176
N.E.2D, AT 579.  N.Y. PENAL LAW SEC. 2447, GOVERNING THE PROCEDURE FOR
CONFERRING STATUTORY IMMUNITY, PROVIDES THAT IN THE CASE OF A GRAND
JURY, THE GRAND JURY MUST BE "EXPRESSLY REQUESTED" BY THE PROSECUTOR TO
ORDER THE WITNESS TO ANSWER AND THE GRAND JURY MUST GIVE THAT ORDER;
THERE APPEARS TO HAVE BEEN NEITHER REQUEST NOR ORDER IN THIS CASE. 
THAT COURTS MIGHT "ESTOP" THE PROSECUTOR FROM LATER PROSECUTING IN
THESE CIRCUMSTANCES SHOULD NOT BE TAKEN AS THE DELIBERATE, ASSURED
GRANT OF IMMUNITY THE CONSTITUTION REQUIRES. 

FN4  SEE, E.G., 49 U.S.C. SEC. 9 (1964 ED.)  SEE GENERALLY MURPHY V.
WATERFRONT COMM'N, 378 U.S. 52, 104, N. 6 (CONCURRING OPINION OF MR.
JUSTICE WHITE). 

FN5  A NUMBER OF STATES APPEAR TO PROVIDE IMMUNITY NO GREATER THAN
THAT IMPLIED BY THE NEW YORK CONSTITUTION.  SEE, E.G., ARIZ. REV. STAT.
ANN. SEC. 13-384; CONN. GEN. STAT.  SEC. 12-2. 

FN6  IT SHOULD BE NOTED THAT NOTHING IN THE RECORD INDICATES THAT
PETITIONER RAISED THE RALEY ARGUMENT IN THE LOWER COURTS, AND THAT CASE
WAS NOT EVEN CITED IN HIS PETITIONS FOR CERTIORARI. 

FN7  IN A FOOTNOTE, THE COURT APPEARS TO ANNOUNCE AS A NEW AND
DISTINCT PRINCIPLE THAT "A STATE MUST AFFIRMATIVELY DEMONSTRATE TO THE
WITNESS THAT A VALID IMMUNITY FROM PROSECUTION IS HIS" BEFORE
OVERRIDING THE PRIVILEGE (P. 246, N. 11, ANTE).  READING THE WORDS
"VALID IMMUNITY" LITERALLY, THE STATEMENT IS SIMPLY INCONSISTENT WITH
REGAN.  IF INSTEAD THE COURT MEANS THAT IMMUNITY - ALBEIT CONTINGENT ON
THE INVALIDITY OF A WAIVER - MUST BE "AFFIRMATIVELY DEMONSTRATED,"
REGARDLESS OF WHETHER THE STATE MISLED THE WITNESS AND REGARDLESS OF
WHETHER THE WITNESS WELL KNEW HE HAD CONTINGENT IMMUNITY, THEN I
DISAGREE WITH THAT PROPOSITION WHICH IS NOT SUPPORTED BY RALEY. 

FN8  THE CASE TO BE SO REMANDED IS NO. 210; NO. 290, WHICH ORIGINATED
IN THE FEDERAL DISTRICT COURT AS A HABEAS CORPUS SUIT SHOULD BE
RETURNED THERE TO AWAIT THE OUTCOME OF ANY FURTHER STATE PROCEEDINGS. 
..END :








HICKS V. DISTRICT OF COLUMBIA 383 U.S. 252 


NO. 51.  ARGUED OCTOBER 21, 1965.  - DECIDED FEBRUARY 28, 1966.  -
CERTIORARI DISMISSED.  - REPORTED BELOW:  SEE 197 A.2D 154. 


HICKS V. DISTRICT OF COLUMBIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE HARLAN, CONCURRING. 

AMONG THE SEVERAL REASONS WHICH SUPPORT THE ACTION OF THE COURT IN
DISMISSING THE WRIT IN THIS CASE AS IMPROVIDENTLY GRANTED, I REST MY
DECISION TO JOIN IN THIS DISPOSITION ON THE LACK OF A RECORD, WITHOUT
WHICH I DO NOT BELIEVE THE CONSTITUTIONAL ISSUES TENDERED CAN PROPERLY
BE DECIDED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

                                             I. 

WE GRANTED CERTIORARI IN THIS CASE TO CONSIDER WHAT I THINK IS AN
IMPORTANT QUESTION: THE CONSTITUTIONALITY OF PETITIONER'S CONVICTION OF
"VAGRANCY."  RELYING ON OUR DETERMINATION THAT THIS CASE PRESENTED
SUBSTANTIAL QUESTIONS OF CONSTITUTIONAL LAW, THE PARTIES
COMPREHENSIVELY BRIEFED THOSE QUESTIONS AND WE HEARD ARGUMENT.  BUT NOW
THE COURT DECIDES THAT THE WRIT OF CERTIORARI MUST BE DISMISSED AS
IMPROVIDENTLY GRANTED. 

WITH ALL RESPECT, I MUST DISSENT FROM THIS DISPOSITION OF THE CASE. 

IN THE FIRST PLACE, THE ALLEGED "UNTIMELINESS" OF THE PETITION WAS
CALLED TO THE ATTENTION OF THE COURT BY RESPONDENT IN ITS BRIEF
OPPOSING THE GRANT OF CERTIORARI.  WE WERE THUS FULLY AWARE OF THIS
POINT WHEN WE GRANTED THE WRIT.  MOREOVER, RULE 22(2) IS NOT
JURISDICTIONAL OR MANDATORY AND MAY BE WAIVED BY THIS COURT UNDER
PROPER CIRCUMSTANCES, AT LEAST WHERE NO JURISDICTIONAL STATUTE IS
INVOLVED.  HEFLIN V. UNITED STATES, 358 U.S. 415, 418, N.7.  HAVING
BROUGHT THE CASE HERE, REQUIRED THE PARTIES TO BRIEF THE ISSUES, AND
HEARD ARGUMENT, IT IS MOST INAPPROPRIATE TO DECLINE TO EXERCISE OUR
DISCRETION AND WAIVE THE TIME BAR OF RULE 22(2).  (FN1) 

NOR, IN MY OPINION, IS THE OBJECTION TO THE ADEQUACY OF THE RECORD
WELL FOUNDED.  PETITIONER ARGUED IN THIS COURT THAT THE STATUTE
DEFINING "VAGRANT" IS UNCONSTITUTIONALLY VAGUE.  THE CHALLENGED STATUTE
IS SEC 22-3302(3) OF THE DISTRICT OF COLUMBIA CODE, AND IT PROVIDES
THAT A "VAGRANT" IS: 

"ANY PERSON LEADING AN IMMORAL OR PROFLIGATE LIFE WHO HAS NO LAWFUL
EMPLOYMENT AND WHO HAS NO LAWFUL MEANS OF SUPPORT REALIZED FROM A
LAWFUL OCCUPATION OR SOURCE." 

WE DO NOT NEED A DETAILED ACCOUNT OF THE PARTICULAR FACTS OF THIS
CASE IN ORDER TO PASS ON THE CLAIM THAT THIS STATUTE LACKS THE
SPECIFICITY THAT DUE PROCESS OF LAW REQUIRES.  IN LANZETTA V. NEW
JERSEY, 306 U.S. 451, 453, WE SAID: 

"IF ON ITS FACE THE CHALLENGED PROVISION IS REPUGNANT TO THE DUE
PROCESS CLAUSE, SPECIFICATION OF DETAILS OF THE OFFENSE INTENDED TO BE
CHARGED WOULD NOT SERVE TO VALIDATE IT  ...  .  IT IS THE STATUTE, NOT
THE ACCUSATION UNDER IT, THAT PRESCRIBES THE RULE TO GOVERN CONDUCT AND
WARNS AGAINST TRANSGRESSION  ...  .  NO ONE MAY BE REQUIRED AT PERIL OF
LIFE, LIBERTY OR PROPERTY TO SPECULATE AS TO THE MEANING OF PENAL
STATUTES." 

THE COURT HELD THE CHALLENGED STATUTE BAD IN THAT CASE WITHOUT
CONSIDERING THE DEFENDANT'S CONDUCT WHICH FORMED THE BASIS OF THE
PROSECUTION.  IF A PENAL STATUTE IS SO IMPRECISE AS TO DENY FAIR
WARNING TO THOSE WHO MIGHT TRANSGRESS IT, ANY CONDUCT OF THE DEFENDANT
PROSECUTED UNDER IT WHICH MIGHT HAVE BEEN PROSCRIBED BY A MORE
PRECISELY WORDED STATUTE IS IRRELEVANT. 

THE LANZETTA CASE IS CLOSE KIN TO THE PRESENT ONE BECAUSE THE CRIME
THERE CHARGED WAS ONE OF BEING A "GANGSTER" WHICH WAS DEFINED AS ANY
PERSON "NOT ENGAGED IN ANY LAWFUL OCCUPATION, KNOWN TO BE A MEMBER OF
ANY GANG CONSISTING OF TWO OR MORE PERSONS, WHO HAS BEEN CONVICTED AT
LEAST THREE TIMES OF BEING A DISORDERLY PERSON, OR WHO HAS BEEN
CONVICTED OF ANY CRIME IN THIS OR IN ANY OTHER STATE."  306 U.S., AT
452.  THE COURT, WITHOUT CONSIDERING THE FACTS OF RECORD, LOOKED ONLY
AT THE STATUTE AND THE CHARGE OF THE INDICTMENT AND RULED THAT THE ACT
WAS UNCONSTITUTIONAL FOR VAGUENESS. 

IF ONE TAKES MY VIEW AND APPROACHES THIS CASE AS AN ATTEMPT BY THE
GOVERNMENT TO REGULATE THE STATUS OF BEING A VAGRANT, THE ABSENCE OF A
DETAILED RECORD IS - AS WITH THE VAGUENESS POINT - NO IMPEDIMENT TO
PROPER ANALYSIS. 

                                            II. 

OUR VAGRANCY LAWS STEM FROM THE SERIES OF THE STATUTES OF LABOURERS
(23 EDW.  3; 25 EDW.  3, STAT. I) FIRST PASSED IN 1349 AND AMENDED AND
MODIFIED FROM TIME TO TIME OVER THE NEXT 200 YEARS.  (FN2) THEY
REFLECTED "THE CRIMINAL ASPECT OF THE POOR LAWS."  (FN3)  THEY
"CONFINED THE LABOURING POPULATION TO STATED PLACES OF ABODE, AND
REQUIRED THEM TO WORK AT SPECIFIED RATES OF WAGES.  WANDERING OR
VAGRANCY THUS BECAME A CRIME."  (FN4)  HISTORY TELLS THE STORY FROM THE
POINT OF VIEW OF THE ESTABLISHMENT:  THAT WANDERING BANDS OF PEOPLE,
WHO HAD LEFT THEIR MASTERS, COMMITTED ALL SORTS OF CRIMES AND HENCE
MUST BE PUNISHED FOR WANDERING.  THAT PHILOSOPHY OBTAINS IN THIS
COUNTRY, BECAUSE THE ENGLISH STATUTES PROVIDED THE SEED OF OUR VAGRANCY
LAWS.  ARTICLE IV, PARA. 1, OF THE ARTICLES OF CONFEDERATION ASSURED
THE FREE INHABITANTS OF EACH STATE, SAVE "PAUPERS, VAGABONDS, AND
FUGITIVES FROM JUSTICE," THE PRIVILEGES AND IMMUNITIES OF CITIZENSHIP
OF THE SEVERAL STATES, AND THE RIGHT OF FREE INGRESS AND EGRESS TO AND
FROM EACH STATE. 

BUT THERE WAS INCONGRUITY IN SUPERIMPOSING THE ENGLISH ANTI-MIGRATORY
POLICY UPON THE LAW OF AMERICA: 

"VAST MOVEMENTS OF PEOPLE MOTIVATED BY URGENT ECONOMIC NEED SETTLED
THIS COUNTRY FROM EUROPE, PUSHED SETTLEMENT WESTWARD AND FED GROWING
CITIES FROM RURAL POPULATION RESERVOIRS.  ENGLAND'S ENCLOSURE ACTS, BY
WITHDRAWING LAND FROM AGRICULTURAL USE, SWELLED THE ARMY OF ENGLISH
VAGRANTS; AMERICA INVITED MIGRATION WITH THE LURE OF FREE LAND.  THE
SAME ELEMENTS OF THE POPULATION WHO ON ONE SIDE OF THE ATLANTIC WERE
ROGUES AND VAGABONDS, ON THE OTHER WERE FRONTIERSMEN."  (FN5) 

AMERICA'S VAGRANCY LAWS WERE EXPANDED TO COVER A HOST OF ACTS OTHER
THAN WANDERING - BEGGING, DRUNKENNESS, DISORDERLY CONDUCT, LOITERING,
PROSTITUTION, LEWDNESS, NARCOTICS PEDDLING, AND SO ON. THEY WERE
JUSTIFIED HERE, AS IN EARLY ENGLAND, AS DEVICES OF CONTROL.  THIS
COURT, WRITING IN 1837, SAID: 

"WE THINK IT AS COMPETENT AND AS NECESSARY FOR A STATE TO PROVIDE
PRECAUTIONARY MEASURES AGAINST THE MORAL PESTILENCE OF PAUPERS,
VAGABONDS, AND POSSIBLY CONVICTS; AS IT IS TO GUARD AGAINST THE
PHYSICAL PESTILENCE, WHICH MAY ARISE FROM UNSOUND AND INFECTIOUS
ARTICLES IMPORTED, OR FROM A SHIP, THE CREW OF WHICH MAY BE LABOURING
UNDER AN INFECTIOUS DISEASE."  CITY OF NEW YORK V. MILN, 11 PET. 102,
142-143. 

THE WANDERER, THE PAUPER, THE UNEMPLOYED - ALL WERE DEEMED TO BE
POTENTIAL CRIMINALS.  AS STATED BY THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT IN DISTRICT OF COLUMBIA V. HUNT, 82 U.S.
APP. D.C. 159, 161, 163 F.2D 833, 835, "A VAGRANT IS A PROBABLE
CRIMINAL; AND THE PURPOSE OF THE STATUTE IS TO PREVENT CRIMES WHICH MAY
LIKELY FLOW FROM HIS MODE OF LIFE."  THE VAGRANT, THEREFORE, IS NOT
NECESSARILY ONE WHO HAS COMMITTED ANY CRIME BUT ONE WHO REFLECTS "A
PRESENT CONDITION OR STATUS."  HANDLER V. DENVER, 102 COLO. 53, 58, 77
P.2D 132, 135.  CF. EX PARTE BRANCH, 234 MO. 466, 470-471, 137 S.W.
886, 887.  THAT CONDITION IS NOT A FAILURE TO MAKE A PRODUCTIVE
CONTRIBUTION TO SOCIETY, FOR THE IDLE RICH ARE NOT REACHED.  THE IDLE
PAUPER IS THE TARGET.  INSOFAR AS THAT STATUS REFLECTS PAUPERISM IT
SUGGESTS THE NEED FOR WELFARE; AND INSOFAR AS IT REFLECTS IDLENESS IT
SUGGESTS THE NEED FOR THE INTERVENTION OF EMPLOYMENT AGENCIES.  I DO
NOT SEE HOW UNDER OUR CONSTITUTIONAL SYSTEM EITHER OF THOSE ELEMENTS
CAN BE MADE A CRIME.  TO DO SO SERVES THE CAUSE EITHER OF ARRESTS AND
CONVICTIONS ON SUSPICION OR OF ARRESTS AND CONVICTIONS OF UNPOPULAR
MINORITIES (EDELMAN V. CALIFORNIA, 344 U.S. 357, 366, DISSENTING
OPINION) - PROCEDURES VERY CONVENIENT TO THE POLICE  (FN6) BUT FOREIGN
TO OUR SYSTEM. 

I DO NOT SEE HOW ECONOMIC OR SOCIAL STATUS CAN BE MADE A CRIME ANY
MORE THAN BEING A DRUG ADDICT CAN BE.  ROBINSON V. CALIFORNIA, 370 U.S.
660, 668 (CONCURRING OPINION).  (FN7)  NO OVERT ACT OF CRIMINAL
DIMENSIONS IS CHARGED HERE.  PETITIONER WAS EITHER ARRESTED ON
SUSPICION  (FN8) OR FOR INNOCENT ACTS  (FN9) WHICH WERE USED AS A CLOAK
FOR AN ARREST ON GROUNDS THE POLICE COULD NOT ESTABLISH.  IN EITHER
EVENT THE ARREST AND CONVICTION WERE, IN MY VIEW, UNCONSTITUTIONAL. 

FN1  THE ABOVE ASSUMES THAT RULE 22(2) APPLIES TO THIS CASE.  OUR
JURISDICTION TO REVIEW THIS DECISION IS NOT BASED ON 28 U.S.C. SEC.
1254(1) (1964 ED.)  WHICH WE PREVIOUSLY HELD DID NOT PERMIT REVIEW BY
WRIT OF CERTIORARI OF CASES WHERE THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT REFUSED TO ALLOW AN APPEAL.  FERGUSON V. DISTRICT
OF COLUMBIA, 270 U.S. 633.  OUR JURISDICTION IS FOUNDED ON THE POWER TO
ISSUE A COMMON-LAW WRIT OF CERTIORARI.  HOUSE V. MAYO, 324 U.S. 42; 28
U.S.C. SEC 1651(A) (1964 ED.).  ARGUABLY, RULE 22(2) HAS NO APPLICATION
IN CASES INVOLVING EXTRAORDINARY WRITS.  RULE 31 WHICH GOVERNS THE
PROCEDURE ON APPLICATIONS FOR EXTRAORDINARY WRITS IMPOSES NO TIME
LIMIT. 

FN2  III STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 203 ET SEQ.
(1883). 

FN3  ID., AT 266; SEE II HOLDSWORTH, HISTORY OF ENGLISH LAW 459-462
(1927).  THE PURPOSE OF THESE STATUTES WAS TO OFFSET THE LOSS OF
WORKERS AND TO CHECK THE RISE IN WAGES WHICH RESULTED FROM THE BLACK
DEATH.  THOSE ABLE TO WORK, AND LACKING OTHER MEANS OF SUPPORT WERE
COMPELLED TO WORK, AND AT REGULATED WAGES.  WORKERS WERE CONFINED TO
THEIR EXISTING PLACE OF RESIDENCE.  STEPHEN SUGGESTS THAT THE "OBJECT
OF THIS LEGISLATION WAS TO PROVIDE A KIND OF SUBSTITUTE FOR THE SYSTEM
OF VILLAINAGE AND SERFDOM, WHICH WAS THEN BREAKING DOWN  ...  ." 
STEPHEN, OP. CIT. SUPRA, AT 204.  SEE ALSO KENNY'S OUTLINES OF CRIMINAL
LAW 411 (TURNER ED. 1958).  EARLY LAWS FORBIDDING BEGGING DISTINGUISHED
BETWEEN BEGGARS "ABLE TO SERVE OR LABOR" AND "BEGGARS IMPOTENT TO
SERVE."  SEE, E.G., 12 RICH.  2, C. 7.  ECONOMIC CONDITIONS CHANGED;
WHEN WORK BECAME SCARCE, LABORERS WERE FORCED TO LOOK ELSEWHERE.  THE
FOCUS OF THE LAWS DEALING WITH LABORERS SHIFTED; THE BAN ON MIGRATION
BECAME A PREVENTIVE TO KEEP A PARISH FROM BEING SADDLED WITH THE NEEDS
OF FOREIGN PAUPERS AND IDLERS.  "THE VAGRANT CAME TO BE REGARDED RATHER
AS A PROBABLE CRIMINAL THAN AS A RUNAWAY SLAVE.  HE MUST BE MADE TO
WORK OR ELSE BE TREATED AS A CRIMINAL."  STEPHEN, OP. CIT. SUPRA, AT
274. 

FN4  STEPHEN, OP. CIT. SUPRA, AT 267. 

FN5  FOOTE, VAGRANCY-TYPE LAW AND ITS ADMINISTRATION, 104 U. PA. L.
REV. 603, 617 (1956).  AND SEE SCOTT, CRIMINAL LAW IN COLONIAL VIRGINIA
272-275 (1930). 

FN6  FOOTE, OP. CIT. SUPRA, N. 5, AT 625 ET SEQ. 

FN7  THE VOLUME OF VAGRANCY CASES IN THE COURTS EACH YEAR IS LARGE. 
THE MOST RECENT FBI CRIME REPORTS SHOW THAT IN 1964, IN 3,012 CITIES
WITH POPULATIONS EXCEEDING 2,500, 125,763 VAGRANCY ARRESTS WERE MADE
(OUT OF A TOTAL OF 4,155,924 ARRESTS FOR THAT SAME PERIOD).  UNIFORM
CRIME REPORTS - 1964, P. 120. 

FN8  FOR THE PREVALENCY OF ARRESTS "ON SUSPICION" OR "FOR
INVESTIGATION" IN THE DISTRICT OF COLUMBIA, SEE REPORT AND
RECOMMENDATIONS OF THE COMMISSIONERS' COMMITTEE ON POLICE ARRESTS FOR
INVESTIGATION (THE HORSKY REPORT), JULY 1962. 

FN9  HE WAS EITHER ARRESTED FOR PLAYING A GUITAR IN A PARK (SEE
APPENDIX) OR FOR SLEEPING IN A MEN'S ROOM (CF. JEAN VALJEAN IN VICTOR
HUGO'S LES MISERABLES), FOR THE INFORMATION READS AS FOLLOWS:

"EDDIE J. HICKS LATE OF THE DISTRICT OF COLUMBIA AFORESAID, ON OR
ABOUT THE 19TH DAY OF MAY IN THE YEAR A.D. NINETEEN HUNDRED AND SIXTY
THREE, IN THE DISTRICT OF COLUMBIA AFORESAID, AND ON DUPONT CIRCLE
NORTH, WEST, WAS THEN AND THERE, AND HAS BEEN SINCE THAT DAY AND STILL
IS A VAGRANT, TO WIT; A PERSON LEADING AN IMMORAL AND PROFLIGATE LIFE
WHO HAS NO LAWFUL EMPLOYMENT AND WHO HAS NO LAWFUL MEANS OF SUPPORT
REALIZED FROM A LAWFUL OCCUPATION AND SOURCE AND WHO WANDERS ABROAD AND
LODGES IN A PUBLIC PARK AND PUBLIC COMFORT STATIONS, LIVING UPON THE
CHARITY OF OTHERS, AND WHO LIVES IDLY AND WITHOUT ANY SETTLED HOME, AND
OTHERWISE LEADING A PROFLIGATE LIFE." 

                           APPENDIX TO OPINION OF MR. JUSTICE

     DOUGLAS, DISSENTING

                           GUITARIST CONVICTION STIRS PROTEST

        BY STERLING SEAGRAVE

        THE WASHINGTON POST

          JUNE 14, 1963 

EDDIE HICKS, THE 25-YEAR-OLD DUPONT CIRCLE TROUBADOUR CONVICTED OF
VAGRANCY BECAUSE HE SPENT HIS AFTERNOONS PLAYING A GUITAR IN DUPONT
CIRCLE, WAS GIVEN A SUSPENDED SENTENCE YESTERDAY. 

THE AMERICAN CIVIL LIBERTIES UNION ANNOUNCED IT WOULD APPEAL THE
HICKS CASE AND ATTACK THE CONSTITUTIONALITY OF HIS CONVICTION UNDER THE
VAGRANCY STATUTE.  THE ACLU SAID THE STATUTE WAS UNCLEAR AND WAS BEING
USED BY POLICE TO PERSECUTE HICKS AND OTHERS WHO WERE ONLY ENJOYING
THEMSELVES INNOCENTLY IN A PUBLIC PARK. 

THE YOUNG TROUBADOUR WAS ARRESTED BY A PARK POLICEMAN WEDNESDAY AFTER
BEING WARNED NOT TO PLAY HIS GUITAR IN DUPONT CIRCLE.  AS A RESULT,
RESIDENTS OF THE AREA AND "REGULARS" IN THE PARK ARE PROTESTING WHAT
THEY CONSIDER AN INVASION OF THEIR RIGHT TO ASSEMBLE IN PEACEFUL
RECREATION.    TOP OFFICIALS OF THE INTERIOR DEPARTMENT SPOKE OUT IN
FAVOR OF GUITAR PLAYING AND FOLK SINGING AS A "WHOLESOME ACTIVITY THAT
SHOULD NOT BE DISTURBED BUT ENCOURAGED" IN THE NATION'S PUBLIC PARKS. 

AT THE TRIAL WEDNESDAY, PARK POLICEMAN JAMES E. THOMAS TOLD JUDGE
THOMAS C. SCALLEY THAT HICKS WAS UNEMPLOYED.  HICKS TESTIFIED THAT HE
WAS ONLY VISITING WASHINGTON FOR A FEW WEEKS AND THAT HE HAD SHOWN
THOMAS A $20 BILL WHEN THE POLICEMAN HAD THREATENED TO ARREST HIM FOR
VAGRANCY IF HE EVER CAME BACK TO DUPONT CIRCLE. 

WHEN HE WAS ARRESTED WEDNESDAY, HICKS WAS SITTING ON A BENCH WITH A
FRIEND, HIS GUITAR IN A CASE AND MONEY IN HIS POCKET, TESTIMONY
SHOWED.    AT THE SENTENCING YESTERDAY, JUDGE SCALLEY TOLD THE MINSTREL
THAT HE WAS SUSPENDING SENTENCE AND THAT HICKS WAS FREE ON "PERSONAL
BOND."  THE CONVICTION WENT DOWN ON HIS RECORD, HOWEVER. 

REACTION CAME SWIFTLY.  AT DUPONT CIRCLE, ANGRY SYMPATHIZERS PLOTTED
A DEMONSTRATION. 

"IF THEY ARE GOING TO STICK THAT BOY WITH A VAGRANCY CONVICTION JUST
FOR PLAYING A GUITAR, THEY'RE GOING TO HAVE TO ARREST SEVERAL HUNDRED
OF US.  WE'VE BEEN PLAYING GUITARS THERE FOR YEARS," SAID ONE. 

THE REGULAR HABITUES OF DUPONT CIRCLE ON ANY GIVEN DAY ARE
NEIGHBORHOOD RESIDENTS, RETIRED FOLK, FAMILIES WHO PAUSE ON A STROLL IN
THE SUMMER SUN, CHILDREN WHO PLAY PORPOISE IN THE FOUNTAIN, COUPLES WHO
DOZE ON THE GRASS, AND STUDENTS. 

THE STUDENTS WERE PRICED OUT OF GEORGETOWN, MOVED TO FOGGY BOTTOM,
THEN RELOCATED TO THE DUPONT CIRCLE AREA WHEN URBAN RENEWAL CLOSED
FOGGY BOTTOM TO THEM. 

THEY LIVE FOR BLOCKS AROUND THE CIRCLE IN LOW-RENT ROOMING HOUSES,
STUDIOS AND SHARED APARTMENTS.  MOST ARE POOR, SOME ARE OUT OF SCHOOL
TEMPORARILY TO WORK EVENINGS AND PART-TIME WHEREVER THEY CAN FIND
JOBS. 

GENERALLY, THEY ARE CLEAN-CUT, NEATLY DRESSED IN SPORTS CLOTHES,
ARTICULATE, QUIET AND YET QUICK TO TAKE OFFENSE WHEN THEY THINK CIVIL
AUTHORITIES ARE BREATHING TOO CLOSELY ON THEIR NECKS. 

WHEN THEY CAN, THEY PLAY CHESS IN THE CIRCLE, AROUND THE FOUNTAIN,
ARGUE AGE-OLD QUESTIONS, OR GATHER AROUND THE TALENTED AND UNTALENTED
GUITARISTS AMONG THEM FOR SPONTANEOUS FOLK MUSIC SESSIONS THAT QUICKLY
DRAW THE INTEREST AND AMUSEMENT OF PASSERS-BY. 

ON RECENT SUNDAYS, SPONTANEOUS "HOOTENANNYS" HAVE STARTED OUT OF
NOTHING, DRAWING SMALL CROWDS WHICH SAT LISTENING ON THE GRASS. 

ON MAY 19, PARK POLICEMEN ROUTED THE LAST HOOTENANNY, SENDING
EVERYONE SCURRYING FOR COVER.  ATTORNEY ARTHUR NEUMAN WAS PASSING BY
AND SNAPPED PICTURES. 

"IT WAS A PEACEFUL, LAWFUL ASSEMBLY," NEUMAN SAID YESTERDAY.  "THERE
WAS NO DISTURBANCE AND IT WAS COMMENDABLE AND REFRESHING TO SEE YOUNG
PEOPLE ENGAGED IN GOOD SOCIAL BEHAVIOR RATHER THAN ROAMING THE STREETS
COMMITTING CRIMES." 

CAPT. RAYMOND S. PYLES, CHIEF OF THE THIRD PRECINCT WHICH INCLUDES
THE CIRCLE, REPORTED, "I CANNOT RECALL A SINGLE COMPLAINT ABOUT THEM." 

WALTER POZEN, ASSISTANT TO SECRETARY OF THE INTERIOR STEWART UDALL,
SAID, "NOT ONLY DO I THINK THEY SHOULDN'T BE SINGLED OUT - THEY SHOULD
BE ENCOURAGED.  THE PARKS ARE THERE FOR RECREATION AND GENERAL USE." 

"THERE'S NO RULE I KNOW AGAINST PLAYING IN A PARK," SAID CONRAD
WIRTH, DIRECTOR OF THE NATIONAL PARK SERVICE.  "I LIKE MUSIC MYSELF." 

CHARLES WOLFRAM, THE ACLU ATTORNEY WHO WILL CHAMPION HICKS WHEN THE
CASE IS APPEALED, SAID YESTERDAY THAT HIS ATTACK WOULD BE AGAINST THREE

THE STATUTE DESCRIBES A VAGRANT AS "IMMORAL, PROFLIGATE AND DISSOLUTE
WITH NO LAWFUL MEANS OF EMPLOYMENT OR SUPPORT, WITHOUT ANY SETTLED
HOME." 

"FIRST," WOLFRAM SAID, "THE WORD 'DISSOLUTE' IS SO VAGUE YOU CAN'T
TELL WHAT IT FORBIDS.  SECOND, THE STATUTE DISCRIMINATES AGAINST THE
POOR AND THE UNEMPLOYED.  THIRD, IT IS USED BY POLICE AS CARTE BLANCHE
TO HARASS ANYONE THEY PERSONALLY DISLIKE." 

LOOKING BACK AT THE WHOLE EPISODE, ATTORNEY NEUMAN SAID, "IF A MAN
CHOOSES TO SPEND HIS LIFE PLAYING A GUITAR, WHO HAS THE RIGHT TO INSIST
THAT HE ENGAGE IN SOME SORT OF SERVITUDE?" 
..END :
















HOPSON V. TEXACO INC. 383 U.S. 262 


NO. 818.  DECIDED FEBRUARY 28, 1966.  - CERTIORARI GRANTED; 351 F.2D
415, REVERSED. 


PETITIONERS SUED UNDER THE JONES ACT FOR DAMAGES FOR INJURIES TO ONE
SEAMAN AND FOR DEATH OF ANOTHER RESULTING FROM AN AUTOMOBILE ACCIDENT
IN TRINIDAD.  THE SEAMEN, WHO WERE CREW MEMBERS OF RESPONDENT'S TANKER
DOCKED AT RESPONDENT'S REFINERY, FELL ILL AND WERE UNABLE TO CONTINUE
THE VOYAGE.  TO COMPLY WITH THE STATUTORY REQUIREMENT THAT
INCAPACITATED SEAMEN BE BROUGHT BEFORE A U.S. CONSUL BEFORE DISCHARGE
IN A FOREIGN PORT, THE SHIP'S MASTER PROCURED A CAB FROM ONE OF THE TWO
LOCAL TAXI COMPANIES USUALLY USED FOR TRIPS OUTSIDE THE REFINERY AREA. 
THE JURY FOUND THE TAXI DRIVER NEGLIGENT AND JUDGMENT ON THE JURY'S
VERDICT WAS ENTERED FOR PETITIONERS IN THE DISTRICT COURT.  THE COURT
OF APPEALS REVERSED THE DETERMINATION THAT RESPONDENT IS LIABLE FOR THE
TAXI DRIVER'S NEGLIGENCE.  HELD:  UNDER THE STANDARDS OF THE FEDERAL
EMPLOYERS' LIABILITY ACT, INCORPORATED INTO THE JONES ACT, WHICH RENDER
AN EMPLOYER LIABLE FOR INJURIES TO HIS EMPLOYEES INFLICTED THROUGH THE
NEGLIGENCE OF HIS "OFFICERS, AGENTS, OR EMPLOYEES," RESPONDENT, WHO HAD
A DUTY OF GETTING THE SEAMEN TO THE CONSULATE AND WHO SELECTED, AS IT
HAD DONE BEFORE, THE TAXI SERVICE, BEARS THE RESPONSIBILITY FOR THE
NEGLIGENCE OF THE DRIVER IT CHOSE.  SINKLER V. MISSOURI PAC.  R. CO.,
356 U.S. 326. 

HOPSON ET AL. V. TEXACO, INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THESE ACTIONS WERE BROUGHT UNDER THE JONES ACT, AS AMENDED (41 STAT.
1007, 46 U.S.C. SEC. 688 (1964 ED.)), TO RECOVER DAMAGES FOR INJURIES
SUSTAINED BY ONE SEAMAN, AND FOR THE DEATH OF ANOTHER, AS A RESULT OF
AN AUTOMOBILE ACCIDENT ON THE ISLAND OF TRINIDAD.  JUDGMENT ON THE
JURY'S VERDICT WAS ENTERED IN UNITED STATES DISTRICT COURT IN FAVOR OF
THE PLAINTIFFS, BUT THE COURT OF APPEALS REVERSED.  351 F.2D 415.  WE
GRANT THE PETITION FOR A WRIT OF CERTIORARI AND REVERSE. 

THE FACTS ARE NOT IN DISPUTE.  THE TWO SEAMEN WERE MEMBERS OF THE
CREW OF RESPONDENT'S TANKER WHICH WAS DOCKED AT RESPONDENT'S REFINERY
AT POINTE-A-PIERRE ON THE ISLAND OF TRINIDAD.  BOTH FELL ILL AND IT WAS
DETERMINED THAT THEY WOULD BE UNABLE TO CONTINUE THE VOYAGE.  IN ORDER
TO DISCHARGE AN INCAPACITATED SEAMAN IN A FOREIGN PORT, FEDERAL LAW
(FN1) REQUIRES THAT HE BE TAKEN TO A UNITED STATES CONSUL WHERE
ARRANGEMENTS FOR HIS RETURN TO THE UNITED STATES CAN BE MADE.  THE
UNITED STATES CONSUL'S OFFICE WAS LOCATED IN PORT OF SPAIN, SOME 38
MILES DISTANT.  ALTHOUGH RESPONDENT HAD A FLEET OF MOTOR VEHICLES USED
FOR TRANSPORTATION IN THE IMMEDIATE VICINITY OF THE REFINERY AND
DOCKING AREA, ITS PRACTICE WAS TO UTILIZE EITHER OF TWO LOCAL TAXI
COMPANIES FOR JOURNEYS TO MORE DISTANT POINTS.  THE SHIP'S MASTER
PROCURED ONE OF THESE CABS WHICH SET OUT FOR PORT OF SPAIN WITH THE TWO
ILL SEAMEN.  EN ROUTE, THE TAXI COLLIDED WITH A TRUCK, KILLING THE
MASTER AND ONE OF THE SEAMEN; THE OTHER SEAMAN WAS SERIOUSLY INJURED. 
THE JURY FOUND THAT THE TAXI DRIVER HAD BEEN NEGLIGENT - A FINDING
CHALLENGED NEITHER IN THE COURT OF APPEALS NOR HERE.  THE COURT OF
APPEALS REVERSED THE DISTRICT COURT'S DETERMINATION THAT RESPONDENT IS
LIABLE TO PETITIONERS FOR THIS NEGLIGENCE OF THE TAXI OPERATOR. 

THE JONES ACT  (FN2) INCORPORATES THE STANDARDS OF THE FEDERAL
EMPLOYERS' LIABILITY ACT, AS AMENDED,  (FN3) WHICH RENDERS AN EMPLOYER
LIABLE FOR THE INJURIES NEGLIGENTLY INFLICTED ON ITS EMPLOYEES BY ITS
"OFFICERS, AGENTS, OR EMPLOYEES."  (FN4)  WE NOTED IN SINKLER V.
MISSOURI PAC. R. CO., 356 U.S. 326, THAT THE LATTER ACT WAS "AN AVOWED
DEPARTURE FROM THE RULES OF THE COMMON LAW" (ID., AT 329), WHICH,
RECOGNIZING "THE COST OF HUMAN INJURY, AN INESCAPABLE EXPENSE OF
RAILROADING," UNDERTOOK TO "ADJUST THAT EXPENSE EQUITABLY BETWEEN THE
WORKER AND THE CARRIER."  IBID.  IN ORDER TO GIVE "AN ACCOMMODATING
SCOPE  ...  TO THE WORD 'AGENTS'" (ID., AT 330-331), WE CONCLUDED THAT
"WHEN AN  ...  EMPLOYEE'S INJURY IS CAUSED IN WHOLE OR IN PART BY THE
FAULT OF OTHERS PERFORMING, UNDER CONTRACT, OPERATIONAL ACTIVITIES OF
HIS EMPLOYER, SUCH OTHERS ARE 'AGENTS' OF THE EMPLOYER WITHIN THE
MEANING OF SEC. 1 OF FELA."  (ID., AT 331-332). 

WE THINK THOSE PRINCIPLES APPLY WITH EQUAL FORCE HERE.  THESE SEAMEN
WERE IN THE SERVICE OF THE SHIP AND THE ILL-FATED JOURNEY TO PORT OF
SPAIN WAS A VITAL PART OF THE SHIP'S TOTAL OPERATIONS.  THE SHIP COULD
NOT SAIL WITH THESE TWO MEN, NOR COULD IT LAWFULLY DISCHARGE THEM
WITHOUT TAKING THEM TO THE UNITED STATES CONSUL.  INDEED, TO HAVE
ABANDONED THEM WOULD HAVE BREACHED THE STATUTORY DUTY TO ARRANGE FOR
THEIR RETURN TO THE UNITED STATES.  GETTING THESE TWO ILL SEAMEN TO THE
UNITED STATES CONSUL'S OFFICE WAS, THEREFORE, THE DUTY OF RESPONDENT. 
AND IT WAS RESPONDENT - NOT THE SEAMEN - WHICH SELECTED, AS IT HAD DONE
MANY TIMES BEFORE, THE TAXI SERVICE.  RESPONDENT - THE LAW SAYS -
SHOULD BEAR THE RESPONSIBILITY FOR THE NEGLIGENCE OF THE DRIVER WHICH
IT CHOSE.  THIS IS SO BECAUSE, AS WE SAID IN SINKLER, "JUSTICE DEMANDS
THAT ONE WHO GIVES HIS LABOR TO THE FURTHERANCE OF THE ENTERPRISE
SHOULD BE ASSURED THAT ALL COMBINING THEIR EXERTIONS WITH HIM IN THE
COMMON PURSUIT WILL CONDUCT THEMSELVES IN ALL RESPECTS WITH SUFFICIENT
CARE THAT HIS SAFETY WHILE DOING HIS PART WILL NOT BE ENDANGERED."  356
U.S., AT 330.  REVERSED. 

FN1  REV. STAT. SECS. 4578, 4580, 4581, AS AMENDED, 46 U.S.C. SECS.
679, 682, 683 (1964 ED.). 

FN2  46 U.S.C. SEC 688 (1964 ED.). 

FN3  53 STAT. 1404, 45 U.S.C. SEC 51 ET SEQ. (1964 ED.). 

FN4  45 U.S.C. SEC 51 (1964 ED.). 

MR. JUSTICE HARLAN, BELIEVING THAT SINKLER V. MISSOURI PAC. R. CO.,
356 U.S. 326, SHOULD NOT BE EXTENDED, DISSENTS. 
..END :













LEVINE V. UNITED STATES 383 U.S. 265 


NO. 112.  DECIDED FEBRUARY 28, 1966.* - CERTIORARI GRANTED; 342 F.2D
147, VACATED AND REMANDED. 

*TOGETHER WITH NO. 125, ROBERTS V. UNITED STATES, NO. 230, GRENE V.
UNITED STATES, AND NO. 234, GRADSKY ET AL. V. UNITED STATES, ALSO ON
PETITIONS FOR WRITS OF CERTIORARI TO THE SAME COURT. 


PETITIONERS WERE FOUND GUILTY BY A JURY ON EACH COUNT OF A TEN-COUNT
INDICTMENT, OF WHICH THE FIRST COUNT WAS A CONSPIRACY CHARGE AND THE
REMAINING COUNTS WERE CHARGES OF SUBSTANTIVE OFFENSES.  THE COURT OF
APPEALS AFFIRMED THE CONSPIRACY CONVICTIONS, AND WITH SOME EXCEPTIONS,
THE CONVICTIONS FOR THE SUBSTANTIVE OFFENSES.  HELD:  IN VIEW OF THE
SOLICITOR GENERAL'S CONCESSIONS THAT AN INDIVIDUAL CANNOT BE HELD
CRIMINALLY LIABLE FOR SUBSTANTIVE OFFENSES COMMITTED BEFORE HE JOINED
OR AFTER HE HAD WITHDRAWN FROM THE CONSPIRACY, AND THAT SOME OF THE
CONVICTIONS FOR SUBSTANTIVE OFFENSES HERE MUST ACCORDINGLY BE REVERSED,
AND UPON CONSIDERATION OF THE ENTIRE RECORD, THE JUDGMENT OF THE COURT
OF APPEALS IS VACATED INSOFAR AS IT AFFIRMS PETITIONERS' CONVICTIONS
FOR SUBSTANTIVE OFFENSES AND REMANDED TO REVERSE THE CONVICTIONS THE
SOLICITOR GENERAL CONCEDES MUST BE REVERSED AND TO DETERMINE WHETHER
PETITIONERS ARE ENTITLED TO ANY FURTHER RELIEF REGARDING THE
CONVICTIONS FOR SUBSTANTIVE OFFENSES. 

LEVINE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

TEN PERSONS WERE FOUND GUILTY BY A JURY ON EACH COUNT OF A 10-COUNT
INDICTMENT.  THE COUNT PREDICATED ON 18 U.S.C. SEC. 371 (1964 ED.) 
CHARGED ALL DEFENDANTS WITH CONSPIRING TO VIOLATE SEC. 17 OF THE
SECURITIES ACT OF 1933, 15 U.S.C. SEC. 77QA) (1964 ED.), AND THE MAIL
FRAUD ACT, 18 U.S.C. SEC 1341 (1964 ED.); EACH OF THE REMAINING NINE
COUNTS CHARGED ALL DEFENDANTS WITH SUBSTANTIVE OFFENSES OF VIOLATING
THESE LATTER STATUTES.  THE COURT OF APPEALS AFFIRMED ALL THE
CONSPIRACY CONVICTIONS; AND, WITH SOME EXCEPTION FOR PETITIONER ROBERTS
AND TWO OTHER DEFENDANTS, THAT COURT ALSO AFFIRMED THE CONVICTIONS FOR
THE SUBSTANTIVE OFFENSES.  342 F.2D 147.  FOUR DEFENDANTS PETITIONED
FOR WRITS OF CERTIORARI, AND A FIFTH DEFENDANT SUBSEQUENTLY MOVED TO BE
ADDED AS A CO-PETITIONER IN ONE OF THE PETITIONS ALREADY FILED (NO.
234).  WE GRANT THAT MOTION; AND WE GRANT THE PETITIONS FOR WRITS OF
CERTIORARI LIMITED TO THE ISSUE WHETHER PETITIONERS WERE IMPROPERLY
CONVICTED OF SUBSTANTIVE OFFENSES COMMITTED BY MEMBERS OF THE
CONSPIRACY BEFORE PETITIONERS HAD JOINED THE CONSPIRACY OR AFTER THEY
HAD WITHDRAWN FROM IT.  IN ALL OTHER RESPECTS THE PETITIONS ARE
DENIED. 

IN RESPONSE TO SPECIFIC QUESTIONS ADDRESSED BY THIS COURT, THE
SOLICITOR GENERAL HAS MADE A TWO-PRONGED CONCESSION:  FIRST, HE
CONCEDES THAT AN INDIVIDUAL CANNOT BE HELD CRIMINALLY LIABLE FOR
SUBSTANTIVE OFFENSES COMMITTED BY MEMBERS OF THE CONSPIRACY BEFORE THAT
INDIVIDUAL HAD JOINED OR AFTER HE HAD WITHDRAWN FROM THE CONSPIRACY;
AND SECOND, HE CONCEDES THAT IN THIS CASE SOME OF THE CONVICTIONS FOR
THE SUBSTANTIVE OFFENSES MUST BE REVERSED BECAUSE THEY ARE INCONSISTENT
WITH THIS PRINCIPLE.  (FN1)  ON THE BASIS OF THIS CONCESSION, AND UPON
CONSIDERATION OF THE ENTIRE RECORD, WE VACATE THE JUDGMENT OF THE COURT
OF APPEALS INSOFAR AS IT AFFIRMS PETITIONERS' CONVICTIONS FOR THE
SUBSTANTIVE OFFENSES.  WE REMAND THE CASE TO THAT COURT WITH
INSTRUCTIONS TO REVERSE THE CONVICTIONS THE SOLICITOR GENERAL CONCEDES
MUST BE REVERSED, AND TO DETERMINE, IN LIGHT OF THE CONCESSION, THE
EVIDENCE, THE INSTRUCTIONS TO THE JURY, AND THE APPLICABLE PRINCIPLES
OF LAW, WHETHER IN ADDITION TO THE RELIEF CONCEDED BY THE SOLICITOR
GENERAL PETITIONERS ARE ENTITLED TO FURTHER RELIEF REGARDING THE
CONVICTIONS FOR THE SUBSTANTIVE OFFENSES.  VACATED AND REMANDED. 

FN1  SPECIFICALLY, THE SOLICITOR GENERAL CONCEDES THAT PETITIONER
LEVINE'S CONVICTIONS ON COUNTS 1, 3, 4, 5, 6, 7, AND 8, AND PETITIONER
GRENE'S CONVICTIONS ON COUNTS 1 AND 7 MUST BE REVERSED. 
..END :























HARRISON V. SCHAEFER 383 U.S. 269 


NO. 854.  DECIDED FEBRUARY 28, 1966.  - 251 F. SUPP. 450, AFFIRMED. 


HARRISON ET AL. V. SCHAEFER ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
WYOMING. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















CALLENDER V. FLORIDA 383 U.S. 270 


NO. 58, OCTOBER TERM, 1964.  - ORDER AND JUDGMENT OF APRIL 26, 1965,
VACATED.  DECIDED FEBRUARY 28, 1966.  - CERTIORARI GRANTED TO DISTRICT
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT, AND JUDGMENTS REVERSED. 


CALLENDER ET AL. V. FLORIDA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MANDATE OF THIS COURT IN THIS CASE ISSUED ON THE 21ST DAY OF MAY,
1965, IS HEREBY RECALLED AND THE JUDGMENT HERETOFORE ENTERED ON THE
26TH DAY OF APRIL, 1965, IS HEREBY VACATED.  THE ORDER OF THE COURT
DATED THE 26TH DAY OF APRIL, 1965, GRANTING THE WRIT OF CERTIORARI TO
THE SUPREME COURT OF FLORIDA IS VACATED. 

TREATING THE PAPERS SUBMITTED AS A PETITION FOR A WRIT OF CERTIORARI
TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT, THE
PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENTS ARE
REVERSED.  BOYNTON V. VIRGINIA, 364 U.S. 454; ABERNATHY V. ALABAMA, 380
U.S. 447. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




CRAWFORD COUNTY BAR ASS'N V. FAUBUS 383 U.S. 271 


NO. 941.  DECIDED FEBRUARY 28, 1966.* - 251 F. SUPP. 998, AFFIRMED. 

*TOGETHER WITH NO. 942, ALEXANDER V. FAUBUS, GOVERNOR OF ARKANSAS, ET
AL., ALSO ON APPEAL FROM THE SAME COURT. 


CRAWFORD COUNTY BAR ASSOCIATION V. FAUBUS, GOVERNOR OF ARKANSAS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF ARKANSAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :












SWANN V. ADAMS 383 U.S. 210 


NO. 973.  DECIDED FEBRUARY 25, 1966.  - REVERSED AND REMANDED. 


THIS REAPPORTIONMENT CASE, INSTITUTED IN 1962, WAS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS IN LIGHT OF REYNOLDS V. SIMS,
377 U.S. 533, AND COMPANION CASES.  THE FLORIDA LEGISLATURE ON JUNE 29,
1965, ENACTED A REAPPORTIONMENT PLAN, WHICH THE DISTRICT COURT ON
APPELLANTS' CHALLENGE, FILED JULY 6, HELD UNCONSTITUTIONAL ON DECEMBER
23.  THAT COURT, HOWEVER, GAVE THE PLAN INTERIM APPROVAL.  THE PERIOD
FOR WHICH SUCH APPROVAL WAS GIVEN WOULD DELAY VALID APPORTIONMENT IN
FLORIDA UNTIL AT LEAST 1969.  HELD: THERE IS NO WARRANT FOR
PERPETUATING THE UNCONSTITUTIONAL APPORTIONMENT FOR THREE MORE YEARS. 
THE CASE IS REVERSED AND REMANDED TO THE DISTRICT COURT SO THAT A VALID
REAPPORTIONMENT PLAN WILL BE MADE EFFECTIVE FOR THE 1966 ELECTIONS. 

SWANN ET AL. V. ADAMS, SECRETARY OF STATE OF FLORIDA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

PER CURIAM. 

WE PREVIOUSLY REMANDED THIS CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN LIGHT OF REYNOLDS V. SIMS, 377 U.S. 533, AND THE OTHER
CASES RELATING TO LEGISLATIVE REAPPORTIONMENT DECIDED WITH REYNOLDS. 
378 U.S. 553.  THE DISTRICT COURT DEFERRED ACTION UNTIL THE CONCLUSION
OF THE LEGISLATIVE SESSION WHICH CONVENED ON APRIL 6, 1965, STATING
THAT IT WOULD RECONSIDER ITS DECISION SHOULD THE FLORIDA LEGISLATURE
FAIL TO EFFECT A VALID REAPPORTIONMENT BY JULY 1, 1965. 

A REAPPORTIONMENT LAW WAS PASSED BY THE LEGISLATURE ON JUNE 29,
1965.  ON JULY 6 THE APPELLANTS FILED A JOINT PETITION ASKING THE
DISTRICT COURT TO DECLARE THE NEWLY ENACTED PLAN UNCONSTITUTIONAL AND
PROPOSING AN ALTERNATIVE PLAN.  THE DISTRICT COURT DID NOT TAKE ACTION
UNTIL OCTOBER 5 WHEN IT ORDERED ORAL ARGUMENT FOR NOVEMBER 2, 1965.  ON
DECEMBER 23 THE DISTRICT COURT CONCLUDED THAT THE NEWLY PASSED
REAPPORTIONMENT PLAN FAILED TO "MEET THE REQUIREMENTS OF THE EQUAL
PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION AS CONSTRUED AND APPLIED
IN REYNOLDS V. SIMS  ...  ." 

ALTHOUGH THE DISTRICT COURT CONCLUDED THAT THE PLAN DID NOT COMPORT
WITH CONSTITUTIONAL REQUIREMENTS, IT APPROVED THE PLAN (MAKING ONLY
MINOR CHANGES) ON AN INTERIM BASIS.  ITS APPROVAL WAS LIMITED TO THE
PERIOD ENDING 60 DAYS AFTER THE ADJOURNMENT OF THE 1967 SESSION OF THE
FLORIDA LEGISLATURE. 

WE HAVE NO OCCASION TO REVIEW THE DISTRICT COURT'S DETERMINATION THAT
THE LEGISLATIVE REAPPORTIONMENT PLAN FAILS TO MEET CONSTITUTIONAL
STANDARDS.  INDEED, FLORIDA DOES NOT CONTEND THAT THE DISTRICT COURT
ERRED IN THIS REGARD, HAVING CONCEDED BELOW THAT THE PLAN WAS
CONSTITUTIONALLY DEFICIENT.  WE HOLD, HOWEVER, THAT IN APPROVING THE
PLAN ON AN INTERIM BASIS, THE DISTRICT COURT ERRED.  THIS LITIGATION
WAS COMMENCED IN 1962.  THE EFFECT OF THE DISTRICT COURT'S DECISION IS
TO DELAY EFFECTUATION OF A VALID APPORTIONMENT IN FLORIDA UNTIL AT
LEAST 1969.  WHILE RECOGNIZING THE DESIRABILITY OF PERMITTING THE
FLORIDA LEGISLATURE ITSELF TO DETERMINE THE COURSE OF REAPPORTIONMENT,
WE FIND NO WARRANT FOR PERPETUATING WHAT ALL CONCEDE TO BE AN
UNCONSTITUTIONAL APPORTIONMENT FOR ANOTHER THREE YEARS. 

WE REVERSE AND REMAND TO THE DISTRICT COURT SO THAT A VALID
REAPPORTIONMENT PLAN WILL BE MADE EFFECTIVE FOR THE 1966 ELECTIONS. 
REVERSED AND REMANDED. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART WOULD AFFIRM THE
JUDGMENT. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




UNITED STATES V. JOHNSON 383 U.S. 169 


NO. 25.  ARGUED NOVEMBER 10 AND 15, 1965.  - DECIDED FEBRUARY 24, 1966. 
- 337 F.2D 180, AFFIRMED AND REMANDED. 


RESPONDENT, A FORMER CONGRESSMAN, WAS CONVICTED ON SEVERAL COUNTS OF
VIOLATING THE CONFLICT OF INTEREST STATUTE (18 U.S.C. SEC 281) AND ON
ONE COUNT OF CONSPIRING TO DEFRAUD THE UNITED STATES (18 U.S.C. SEC
371).  THE CONSPIRACY CHARGE INVOLVED AN ALLEGED AGREEMENT WHEREBY
RESPONDENT AND ANOTHER CONGRESSMAN WOULD ATTEMPT TO INFLUENCE THE
JUSTICE DEPARTMENT TO DISMISS PENDING SAVINGS AND LOAN COMPANY MAIL
FRAUD INDICTMENTS.  AS PART OF THE CONSPIRACY RESPONDENT ALLEGEDLY
DELIVERED FOR PAY A SPEECH IN CONGRESS FAVORABLE TO LOAN COMPANIES. 
THE GOVERNMENT CONTENDED AND ADDUCED PROOF TO SHOW THAT THE SPEECH WAS
DELIVERED TO SERVE PRIVATE INTERESTS; THAT RESPONDENT WAS NOT ACTING IN
GOOD FAITH; AND THAT HE DID NOT PREPARE OR DELIVER THE SPEECH AS A
CONGRESSMAN WOULD ORDINARILY DO.  THE COURT OF APPEALS SET ASIDE THE
CONVICTION ON THE CONSPIRACY COUNT AS BEING BARRED BY ART. I, SEC 6, OF
THE CONSTITUTION, PROVIDING THAT "FOR ANY SPEECH OR DEBATE IN EITHER
HOUSE" SENATORS AND REPRESENTATIVES "SHALL NOT BE QUESTIONED IN ANY
OTHER PLACE," AND ORDERED RETRIAL ON THE SUBSTANTIVE COUNTS.  HELD: 

1.  THE SPEECH OR DEBATE CLAUSE PRECLUDES JUDICIAL INQUIRY INTO THE
MOTIVATION FOR A CONGRESSMAN'S SPEECH AND PREVENTS SUCH A SPEECH FROM
BEING MADE THE BASIS OF A CRIMINAL CHARGE AGAINST A CONGRESSMAN FOR
CONSPIRACY TO DEFRAUD THE GOVERNMENT BY IMPEDING THE DUE DISCHARGE OF
ITS FUNCTIONS.   PP. 173-185. 

(A)  THE SPEECH OR DEBATE CLAUSE, WHICH EMERGED FROM THE LONG
STRUGGLE FOR PARLIAMENTARY SUPREMACY, EMBODIES A PRIVILEGE DESIGNED TO
PROTECT MEMBERS OF THE LEGISLATURE AGAINST PROSECUTION BY A POSSIBLY
UNFRIENDLY EXECUTIVE AND CONVICTION BY A POSSIBLY HOSTILE JUDICIARY. 
PP. 177-180. 

(B)  THE PRIVILEGE, WHICH WILL BE BROADLY CONSTRUED TO EFFECTUATE ITS
PURPOSES, KILBOURN V. THOMPSON, 103 U.S. 168; TENNEY V. BRANDHOVE, 341
U.S. 367, WAS CREATED NOT PRIMARILY TO AVOID PRIVATE SUITS AS IN THOSE
CASES, BUT TO PREVENT LEGISLATIVE INTIMIDATION BY AND ACCOUNTABILITY TO
THE OTHER BRANCHES OF GOVERNMENT.  PP. 180-182. 

(C)  THE SPEECH OR DEBATE CLAUSE FORECLOSES INQUIRY NOT ONLY INTO THE
"CONTENT" OF A CONGRESSIONAL SPEECH BUT INTO CIRCUMSTANCES INVOLVING
THE MOTIVES FOR MAKING IT.  PP. 182-183. 

(D)  PROSECUTION UNDER A GENERAL CRIMINAL STATUTE INVOLVING INQUIRY
INTO THE MOTIVES FOR AND CIRCUMSTANCES SURROUNDING A CONGRESSIONAL
SPEECH IS BARRED EVEN THOUGH THE GRAVAMEN OF THE OFFENSE IS THE ALLEGED
CONSPIRACY RATHER THAN THE SPEECH ITSELF.  PP. 184-185. 

2.  THE GOVERNMENT IS NOT PRECLUDED FROM RETRYING THE CONSPIRACY
COUNT AS PURGED OF ALL THE ELEMENTS OFFENSIVE TO THE SPEECH OR DEBATE
CLAUSE.  P. 185. 

3.  THIS COURT DOES NOT REVIEW THE COURT OF APPEALS' DETERMINATION
THAT THE SUBSTANTIVE COUNTS BE RETRIED BECAUSE OF THE PREJUDICIAL
EFFECT THEREON RESULTING FROM THE UNCONSTITUTIONAL ASPECTS OF THE
CONSPIRACY COUNT SINCE THE GOVERNMENT DOES NOT DISPUTE THAT
DETERMINATION IN THIS PROCEEDING.  PP. 185-186. 

UNITED STATES V. JOHNSON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT JOHNSON, A FORMER UNITED STATES CONGRESSMAN, WAS INDICTED
AND CONVICTED ON SEVEN COUNTS OF VIOLATING THE FEDERAL CONFLICT OF
INTEREST STATUTE, 18 U.S.C. SEC 281 (1964 ED.),  (FN1) AND ON ONE COUNT
OF CONSPIRING TO DEFRAUD THE UNITED STATES, 18 U.S.C. SEC 371 (1964
ED.).  (FN2)  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT SET ASIDE THE
CONVICTION ON THE CONSPIRACY COUNT, 337 F.2D 180, HOLDING THAT THE
GOVERNMENT'S ALLEGATION THAT JOHNSON HAD CONSPIRED TO MAKE A SPEECH FOR
COMPENSATION ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES WAS BARRED BY
ART. I, SEC 6, OF THE FEDERAL CONSTITUTION WHICH PROVIDES THAT "FOR ANY
SPEECH OR DEBATE IN EITHER HOUSE, THEY (SENATORS AND REPRESENTATIVES)
SHALL NOT BE QUESTIONED IN ANY OTHER PLACE."  THE COURT OF APPEALS
ORDERED A NEW TRIAL ON THE OTHER COUNTS, HAVING FOUND THAT THE EVIDENCE
ADDUCED UNDER THE UNCONSTITUTIONAL ASPECTS OF THE CONSPIRACY COUNT HAD
INFECTED THE ENTIRE PROSECUTION. 

THE CONSPIRACY OF WHICH JOHNSON AND HIS THREE CODEFENDANTS WERE FOUND
GUILTY CONSISTED, IN BROAD OUTLINE, OF AN AGREEMENT AMONG JOHNSON,
CONGRESSMAN FRANK BOYKIN OF ALABAMA, AND J. KENNETH EDLIN AND WILLIAM
L. ROBINSON WHO WERE CONNECTED WITH A MARYLAND SAVINGS AND LOAN
INSTITUTION, WHEREBY THE TWO CONGRESSMEN WOULD EXERT INFLUENCE ON THE
DEPARTMENT OF JUSTICE TO OBTAIN THE DISMISSAL OF PENDING INDICTMENTS OF
THE LOAN COMPANY AND ITS OFFICERS ON MAIL FRAUD CHARGES.  IT WAS
FURTHER CLAIMED THAT AS A PART OF THIS GENERAL SCHEME JOHNSON READ A
SPEECH FAVORABLE TO INDEPENDENT SAVINGS AND LOAN ASSOCIATIONS IN THE
HOUSE, AND THAT THE COMPANY DISTRIBUTED COPIES TO ALLAY APPREHENSIONS
OF POTENTIAL DEPOSITORS.  THE TWO CONGRESSMEN APPROACHED THE ATTORNEY
GENERAL AND THE ASSISTANT ATTORNEY GENERAL IN CHARGE OF THE CRIMINAL
DIVISION AND URGED THEM "TO REVIEW" THE INDICTMENT.  FOR THESE SERVICES
JOHNSON RECEIVED SUBSTANTIAL SUMS IN THE FORM OF A "CAMPAIGN
CONTRIBUTION" AND "LEGAL FEES."  THE GOVERNMENT CONTENDED, AND
PRESUMABLY THE JURY FOUND, THAT THESE PAYMENTS WERE NEVER DISCLOSED TO
THE DEPARTMENT OF JUSTICE, AND THAT THE PAYMENTS WERE NOT BONA FIDE
CAMPAIGN CONTRIBUTIONS OR LEGAL FEES, BUT WERE MADE SIMPLY TO "BUY" THE
CONGRESSMAN. 

THE BULK OF THE EVIDENCE SUBMITTED AS TO JOHNSON DEALT WITH HIS
FINANCIAL TRANSACTIONS WITH THE OTHER CONSPIRATORS, AND WITH HIS
ACTIVITIES IN THE DEPARTMENT OF JUSTICE.  AS TO THESE ASPECTS OF THE
SUBSTANTIVE COUNTS AND THE CONSPIRACY COUNT, NO SUBSTANTIAL QUESTION IS
BEFORE US.  18 U.S.C. SEC 371 HAS LONG BEEN HELD TO ENCOMPASS NOT ONLY
CONSPIRACIES THAT MIGHT INVOLVE LOSS OF GOVERNMENT FUNDS, BUT ALSO "ANY
CONSPIRACY FOR THE PURPOSE OF IMPAIRING, OBSTRUCTING OR DEFEATING THE
LAWFUL FUNCTION OF ANY DEPARTMENT OF GOVERNMENT."  HAAS V. HENKEL, 216
U.S. 462, 479.  NO ARGUMENT IS MADE, NOR DO WE THINK THAT IT COULD BE
SUCCESSFULLY CONTENDED, THAT THE SPEECH OR DEBATE CLAUSE REACHES
CONDUCT, SUCH AS WAS INVOLVED IN THE ATTEMPT TO INFLUENCE THE
DEPARTMENT OF JUSTICE, THAT IS IN NO WISE RELATED TO THE DUE
FUNCTIONING OF THE LEGISLATIVE PROCESS.  IT IS THE APPLICATION OF THIS
BROAD CONSPIRACY STATUTE TO AN IMPROPERLY MOTIVATED SPEECH THAT RAISES
THE CONSTITUTIONAL PROBLEM WITH WHICH WE DEAL.  (FN3)

           I. 

THE LANGUAGE OF THE SPEECH OR DEBATE CLAUSE CLEARLY PROSCRIBES AT
LEAST SOME OF THE EVIDENCE TAKEN DURING TRIAL.  EXTENSIVE QUESTIONING
WENT ON CONCERNING HOW MUCH OF THE SPEECH WAS WRITTEN BY JOHNSON
HIMSELF, HOW MUCH BY HIS ADMINISTRATIVE ASSISTANT, AND HOW MUCH BY
OUTSIDERS REPRESENTING THE LOAN COMPANY.  (FN4)  THE GOVERNMENT
ATTORNEY ASKED JOHNSON SPECIFICALLY ABOUT CERTAIN SENTENCES IN THE
SPEECH, THE REASONS FOR THEIR INCLUSION AND HIS PERSONAL KNOWLEDGE OF
THE FACTUAL MATERIAL SUPPORTING THOSE STATEMENTS.  (FN5)  IN CLOSING
ARGUMENT THE THEORY OF THE PROSECUTION WAS VERY CLEARLY DEPENDENT UPON
THE WORDING OF THE SPEECH.  (FN6)  IN ADDITION TO QUESTIONING THE
MANNER OF PREPARATION AND THE PRECISE INGREDIENTS OF THE SPEECH, THE
GOVERNMENT INQUIRED INTO THE MOTIVES FOR GIVING IT.  (FN7) 

THE CONSTITUTIONAL INFIRMITY INFECTING THIS PROSECUTION IS NOT MERELY
A MATTER OF THE INTRODUCTION OF INADMISSIBLE EVIDENCE.  THE ATTENTION
GIVEN TO THE SPEECH'S SUBSTANCE AND MOTIVATION WAS NOT AN INCIDENTAL
PART OF THE GOVERNMENT'S CASE, WHICH MIGHT HAVE BEEN AVOIDED BY
OMITTING CERTAIN LINES OF QUESTIONING OR EXCLUDING CERTAIN EVIDENCE. 
THE CONSPIRACY THEORY DEPENDED UPON A SHOWING THAT THE SPEECH WAS MADE
SOLELY OR PRIMARILY TO SERVE PRIVATE INTERESTS, AND THAT JOHNSON IN
MAKING IT WAS NOT ACTING IN GOOD FAITH, THAT IS, THAT HE DID NOT
PREPARE OR DELIVER THE SPEECH IN THE WAY AN ORDINARY CONGRESSMAN
PREPARES OR DELIVERS AN ORDINARY SPEECH.  JOHNSON'S DEFENSE QUITE
NATURALLY WAS THAT HIS REMARKS WERE NO DIFFERENT FROM THE USUAL
CONGRESSIONAL SPEECH, AND TO REBUT THE PROSECUTION'S CASE HE INTRODUCED
SPEECHES OF SEVERAL OTHER CONGRESSMEN SPEAKING TO THE SAME GENERAL
SUBJECT, ARGUED THAT HIS TALK WAS OCCASIONED BY AN UNFAIR ATTACK UPON
SAVINGS AND LOAN ASSOCIATIONS IN A WASHINGTON, D.C., NEWSPAPER, AND
ASSERTED THAT THE SUBJECT MATTER OF THE SPEECH DEALT WITH A TOPIC OF
CONCERN TO HIS STATE AND TO HIS CONSTITUENTS.  WE SEE NO ESCAPE FROM
THE CONCLUSION THAT SUCH AN INTENSIVE JUDICIAL INQUIRY, MADE IN THE
COURSE OF A PROSECUTION BY THE EXECUTIVE BRANCH UNDER A GENERAL
CONSPIRACY STATUTE, VIOLATES THE EXPRESS LANGUAGE OF THE CONSTITUTION
AND THE POLICIES WHICH UNDERLIE IT.

                                       II. 

THE SPEECH OR DEBATE CLAUSE OF THE CONSTITUTION WAS APPROVED AT THE
CONSTITUTIONAL CONVENTION WITHOUT DISCUSSION AND WITHOUT OPPOSITION. 
SEE V ELLIOT'S DEBATES 406 (1836 ED.); II RECORDS OF THE FEDERAL
CONVENTION 246 (FARRAND ED. 1911).  THE PRESENT VERSION OF THE CLAUSE
WAS FORMULATED BY THE CONVENTION'S COMMITTEE ON STYLE, BUT THE ORIGINAL
VOTE OF APPROVAL WAS OF A SLIGHTLY DIFFERENT FORMULATION WHICH REPEATED
ALMOST VERBATIM THE LANGUAGE OF ARTICLE V OF THE ARTICLES OF
CONFEDERATION:  "FREEDOM OF SPEECH AND DEBATE IN CONGRESS SHALL NOT BE
IMPEACHED OR QUESTIONED IN ANY COURT, OR PLACE OUT OF CONGRESS  ...
."  THE LANGUAGE OF THAT ARTICLE, OF WHICH THE PRESENT CLAUSE IS ONLY A
SLIGHT MODIFICATION, IS IN TURN ALMOST IDENTICAL TO THE ENGLISH BILL OF
RIGHTS OF 1689:  "THAT THE FREEDOM OF SPEECH, AND DEBATES OR
PROCEEDINGS IN PARLIAMENT, OUGHT NOT TO BE IMPEACHED OR QUESTIONED IN
ANY COURT OR PLACE OUT OF PARLIAMENT."  1 W.&M., SESS. 2, C. 2. 

THIS FORMULATION OF 1689 WAS THE CULMINATION OF A LONG STRUGGLE FOR
PARLIAMENTARY SUPREMACY.  BEHIND THESE SIMPLE PHRASES LIES A HISTORY OF
CONFLICT BETWEEN THE COMMONS AND THE TUDOR AND STUART MONARCHS DURING
WHICH SUCCESSIVE MONARCHS UTILIZED THE CRIMINAL AND CIVIL LAW TO
SUPPRESS AND INTIMIDATE CRITICAL LEGISLATORS.  (FN8)  SINCE THE
GLORIOUS REVOLUTION IN BRITAIN, AND THROUGHOUT UNITED STATES HISTORY,
THE PRIVILEGE HAS BEEN RECOGNIZED AS AN IMPORTANT PROTECTION OF THE
INDEPENDENCE AND INTEGRITY OF THE LEGISLATURE.  SEE, E.G., STORY,
COMMENTARIES ON THE CONSTITUTION SEC 866; II THE WORKS OF JAMES WILSON
37-38 (ANDREWS ED.  1896).  IN THE AMERICAN GOVERNMENTAL STRUCTURE THE
CLAUSE SERVES THE ADDITIONAL FUNCTION OF REINFORCING THE SEPARATION OF
POWERS SO DELIBERATELY ESTABLISHED BY THE FOUNDERS.  AS MADISON NOTED
IN FEDERALIST NO. 48: 

"IT IS AGREED ON ALL SIDES, THAT THE POWERS PROPERLY BELONGING TO ONE
OF THE DEPARTMENTS, OUGHT NOT TO BE DIRECTLY AND COMPLEATLY
ADMINISTERED BY EITHER OF THE OTHER DEPARTMENTS.  IT IS EQUALLY
EVIDENT, THAT NEITHER OF THEM OUGHT TO POSSESS DIRECTLY OR INDIRECTLY,
AN OVERRULING INFLUENCE OVER THE OTHERS IN THE ADMINISTRATION OF THEIR
RESPECTIVE POWERS.  IT WILL NOT BE DENIED, THAT POWER IS OF AN
ENCROACHING NATURE, AND THAT IT OUGHT TO BE EFFECTUALLY RESTRAINED FROM
PASSING THE LIMITS ASSIGNED TO IT.  AFTER DISCRIMINATING THEREFORE IN
THEORY, THE SEVERAL CLASSES OF POWER, AS THEY MAY IN THEIR NATURE BE
LIGISLATIVE, EXECUTIVE, OR JUDICIARY; THE NEXT AND MOST DIFFICULT TASK,
IS TO PROVIDE SOME PRACTICAL SECURITY FOR EACH AGAINST THE INVASION OF
THE OTHERS.  WHAT THIS SECURITY OUGHT TO BE, IS THE GREAT PROBLEM TO BE
SOLVED."  (COOKE ED.) 

THE LEGISLATIVE PRIVILEGE, PROTECTING AGAINST POSSIBLE PROSECUTION BY
AN UNFRIENDLY EXECUTIVE AND CONVICTION BY A HOSTILE JUDICIARY, IS ONE
MANIFESTATION OF THE "PRACTICAL SECURITY" FOR ENSURING THE INDEPENDENCE
OF THE LEGISLATURE. 

IN PART BECAUSE THE TRADITION OF LEGISLATIVE PRIVILEGE IS SO WELL
ESTABLISHED IN OUR POLITY, THERE IS VERY LITTLE JUDICIAL ILLUMINATION
OF THIS CLAUSE.  CLEARLY NO PRECEDENT CONTROLS THE DECISION IN THE CASE
BEFORE US.  THIS COURT FIRST DEALT WITH THE CLAUSE IN KILBOURN V.
THOMPSON, 103 U.S. 168, A SUIT FOR FALSE IMPRISONMENT ALLEGING THAT THE
SPEAKER AND SEVERAL MEMBERS OF THE HOUSE OF REPRESENTATIVES ORDERED THE
PETITIONER TO BE ARRESTED FOR CONTEMPT OF CONGRESS.  THE COURT HELD
FIRST THAT CONGRESS DID NOT HAVE POWER TO ORDER THE ARREST, AND SECOND
THAT WERE IT NOT FOR THE PRIVILEGE, THE DEFENDANTS WOULD BE LIABLE. 
THE DIFFICULT QUESTION WAS WHETHER THE PARTICIPATION OF THE DEFENDANTS
IN PASSING THE RESOLUTION ORDERING THE ARREST WAS "SPEECH OR DEBATE." 
THE COURT HELD THAT THE PRIVILEGE SHOULD BE READ BROADLY, TO INCLUDE
NOT ONLY "WORDS SPOKEN IN DEBATE," BUT ANYTHING "GENERALLY DONE IN A
SESSION OF THE HOUSE BY ONE OF ITS MEMBERS IN RELATION TO THE BUSINESS
BEFORE IT."  103 U.S., AT 204. 

IN TENNEY V. BRANDHOVE, 341 U.S. 367, AT ISSUE WAS WHETHER
LEGISLATIVE PRIVILEGE PROTECTED A MEMBER OF THE CALIFORNIA LEGISLATURE
AGAINST A SUIT BROUGHT UNDER THE CIVIL RIGHTS STATUTE, 8 U.S.C. SECS
43, 47(3) (1946 ED.), ALLEGING THAT THE LEGISLATOR HAD USED HIS
OFFICIAL FORUM "TO INTIMIDATE AND SILENCE PLAINTIFF AND DETER AND
PREVENT HIM FROM EFFECTIVELY EXERCISING HIS CONSTITUTIONAL RIGHTS OF
FREE SPEECH AND TO PETITION THE LEGISLATURE FOR REDRESS OF GRIEVANCES
...  ."  341 U.S., AT 371.  THE COURT HELD A DISMISSAL OF THE SUIT
PROPER; IT VIEWED THE STATE LEGISLATIVE PRIVILEGE AS BEING ON A PARITY
WITH THE SIMILAR FEDERAL PRIVILEGE, AND CONCLUDED THAT: 

"THE CLAIM OF AN UNWORTHY PURPOSE DOES NOT DESTROY THE PRIVILEGE  ...
.  THE HOLDING OF THIS COURT IN FLETCHER V. PECK, 6 CRANCH 87, 130,
THAT IT WAS NOT CONSONANT WITH OUR SCHEME OF GOVERNMENT FOR A COURT TO
INQUIRE INTO THE MOTIVES OF LEGISLATORS, HAS REMAINED UNQUESTIONED." 
341 U.S., AT 377. 

            III. 

KILBOURN AND TENNEY INDICATE THAT THE LEGISLATIVE PRIVILEGE WILL BE
READ BROADLY TO EFFECTUATE ITS PURPOSES; NEITHER CASE DEALS, HOWEVER,
WITH A CRIMINAL PROSECUTION BASED UPON AN ALLEGATION THAT A MEMBER OF
CONGRESS ABUSED HIS POSITION BY CONSPIRING TO GIVE A PARTICULAR SPEECH
IN RETURN FOR REMUNERATION FROM PRIVATE INTERESTS.  HOWEVER
REPREHENSIBLE SUCH CONDUCT MAY BE, WE BELIEVE THE SPEECH OR DEBATE
CLAUSE EXTENDS AT LEAST SO FAR AS TO PREVENT IT FROM BEING MADE THE
BASIS OF A CRIMINAL CHARGE AGAINST A MEMBER OF CONGRESS OF CONSPIRACY
TO DEFRAUD THE UNITED STATES BY IMPEDING THE DUE DISCHARGE OF
GOVERNMENT FUNCTIONS.  THE ESSENCE OF SUCH A CHARGE IN THIS CONTEXT IS
THAT THE CONGRESSMAN'S CONDUCT WAS IMPROPERLY MOTIVATED, AND AS WILL
APPEAR THAT IS PRECISELY WHAT THE SPEECH OR DEBATE CLAUSE GENERALLY
FORECLOSES FROM EXECUTIVE AND JUDICIAL INQUIRY. 

EVEN THOUGH NO ENGLISH OR AMERICAN CASE CASTS BRIGHT LIGHT ON THE ONE
BEFORE US  (FN9) IT IS APPARENT FROM THE HISTORY OF THE CLAUSE THAT THE
PRIVILEGE WAS NOT BORN PRIMARILY OF A DESIRE TO AVOID PRIVATE SUITS
SUCH AS THOSE IN KILBOURN AND TENNEY, BUT RATHER TO PREVENT
INTIMIDATION BY THE EXECUTIVE AND ACCOUNTABILITY BEFORE A POSSIBLY
HOSTILE JUDICIARY.  IN THE NOTORIOUS PROCEEDINGS OF KING CHARLES I
AGAINST ELIOT, HOLLIS, AND VALENTINE, 3 HOW.  ST. TR. 294 (1629), THE
CROWN WAS ABLE TO IMPRISON MEMBERS OF COMMONS ON CHARGES OF SEDITIOUS
LIBEL AND CONSPIRACY TO DETAIN THE SPEAKER IN THE CHAIR TO PREVENT
ADJOURNMENT.  (FN10)  EVEN AFTER THE RESTORATION, AS HOLDSWORTH NOTED,
"THE LAW OF SEDITIOUS LIBEL WAS INTERPRETED WITH THE UTMOST HARSHNESS
AGAINST THOSE WHOSE POLITICAL OR RELIGIOUS TENETS WERE DISTASTEFUL TO
THE GOVERNMENT."  VI HOLDSWORTH, A HISTORY OF ENGLISH LAW 214 (1927). 
IT WAS NOT ONLY FEAR OF THE EXECUTIVE THAT CAUSED CONCERN IN PARLIAMENT
BUT OF THE JUDICIARY AS WELL, FOR THE JUDGES WERE OFTEN LACKEYS OF THE
STUART MONARCHS,  (FN11) LEVYING PUNISHMENT MORE "TO THE WISHES OF THE
CROWN THAN TO THE GRAVITY OF THE OFFENCE."  ID., AT 214-215.  THERE IS
LITTLE DOUBT THAT THE INSTIGATION OF CRIMINAL CHARGES AGAINST CRITICAL
OR DISFAVORED LEGISLATORS BY THE EXECUTIVE IN A JUDICIAL FORUM WAS THE
CHIEF FEAR PROMPTING THE LONG STRUGGLE FOR PARLIAMENTARY PRIVILEGE IN
ENGLAND AND, IN THE CONTEXT OF THE AMERICAN SYSTEM OF SEPARATION OF
POWERS, IS THE PREDOMINATE THRUST OF THE SPEECH OR DEBATE CLAUSE.  IN
SCRUTINIZING THIS CRIMINAL PROSECUTION, THEN, WE LOOK PARTICULARLY TO
THE PROPHYLACTIC PURPOSES OF THE CLAUSE.  (FN12)    THE GOVERNMENT
ARGUES THAT THE CLAUSE WAS MEANT TO PREVENT ONLY PROSECUTIONS BASED
UPON THE "CONTENT" OF SPEECH, SUCH AS LIBEL ACTIONS, BUT NOT THOSE
FOUNDED ON "THE ANTECEDENT UNLAWFUL CONDUCT OF ACCEPTING OR AGREEING TO
ACCEPT A BRIBE."  BRIEF OF THE UNITED STATES, AT 11.  ALTHOUGH
HISTORICALLY SEDITIOUS LIBEL WAS THE MOST FREQUENT INSTRUMENT FOR
INTIMIDATING LEGISLATORS, THIS HAS NEVER BEEN THE SOLE FORM OF LEGAL
PROCEEDINGS SO EMPLOYED,  (FN13) AND THE LANGUAGE OF THE CONSTITUTION
IS FRAMED IN THE BROADEST TERMS.  THE BROADER THRUST OF THE PRIVILEGE
IS INDICATED BY A NINETEENTH CENTURY BRITISH CASE, EX PARTE WASON, L.R.
4 Q.B.  573 (1869), WHICH DEALT SPECIFICALLY WITH AN ALLEGED CRIMINAL
CONSPIRACY.  THERE A PRIVATE CITIZEN MOVED THAT A MAGISTRATE BE
REQUIRED TO PROSECUTE SEVERAL MEMBERS OF THE HOUSE OF LORDS FOR
CONSPIRING WRONGFULLY TO PREVENT HIS PETITION FROM BEING HEARD ON THE
FLOOR.  THE COURT DENIED THE MOTION, STATING THAT STATEMENTS MADE IN
THE HOUSE "COULD NOT BE MADE THE FOUNDATION OF CIVIL OR CRIMINAL
PROCEEDINGS  ...  .  AND A CONSPIRACY TO MAKE SUCH STATEMENTS WOULD NOT
MAKE THE PERSON GUIILTY OF IT AMENABLE TO THE CRIMINAL LAW."  ID., AT
576.  (COCKBURN, C.J.)  MR. JUSTICE LUSH ADDED, "I AM CLEARLY OF
OPINION THAT WE OUGHT NOT TO ALLOW IT TO BE DOUBTED FOR A MOMENT THAT
THE MOTIVES OR INTENTIONS OF MEMBERS OF EITHER HOUSE CANNOT BE INQUIRED
INTO BY CRIMINAL PROCEEDINGS WITH RESPECT TO ANYTHING THEY MAY DO OR
SAY IN THE HOUSE."  ID., AT 577. 

IN THE SAME VEIN THE GOVERNMENT CONTENDS THAT THE SPEECH OR DEBATE
CLAUSE WAS NOT VIOLATED BECAUSE THE GRAVAMEN OF THE COUNT WAS THE
ALLEGED CONSPIRACY, NOT THE SPEECH, AND BECAUSE THE DEFENDANT, NOT THE
PROSECUTION, INTRODUCED THE SPEECH ITSELF.  (FN14)  WHATEVER ROOM THE
CONSTITUTION MAY ALLOW FOR SUCH FACTORS IN THE CONTEXT OF A DIFFERENT
KIND OF PROSECUTION, WE CONCLUDE THAT THEY CANNOT SERVE TO SAVE THE
GOVERNMENT'S CASE UNDER THIS CONSPIRACY COUNT.  IT WAS UNDISPUTED THAT
JOHNSON DELIVERED THE SPEECH; IT WAS LIKEWISE UNDISPUTED THAT JOHNSON
RECEIVED THE FUNDS; CONTROVERSY CENTERED UPON QUESTIONS OF WHO FIRST
DECIDED THAT A SPEECH WAS DESIRABLE, WHO PREPARED IT, AND WHAT
JOHNSON'S MOTIVES WERE FOR MAKING IT.  THE INDICTMENT ITSELF FOCUSED
WITH PARTICULARITY UPON MOTIVES UNDERLYING THE MAKING OF THE SPEECH AND
UPON ITS CONTENTS: 

"(15) IT WAS A PART OF SAID CONSPIRACY THAT THE SAID THOMAS F.
JOHNSON SHOULD  ...  RENDER SERVICES, FOR COMPENSATION,  ...  TO WIT,
THE MAKING OF A SPEECH, DEFENDING THE OPERATIONS OF MARYLAND'S
'INDEPENDENT' SAVINGS AND LOAN ASSOCIATIONS, THE FINANCIAL STABILITY
AND SOLVENCY THEREOF, AND THE RELIABILITY AND INTEGRITY OF THE
'COMMERCIAL INSURANCE' ON INVESTMENTS MADE BY SAID 'INDEPENDENT'
SAVINGS AND LOAN ASSOCIATIONS, ON THE FLOOR OF THE HOUSE OF
REPRESENTATIVES."  APP. 5-6. 

WE HOLD THAT A PROSECUTION UNDER A GENERAL CRIMINAL STATUTE DEPENDENT
ON SUCH INQUIRIES NECESSARILY CONTRAVENES THE SPEECH OR DEBATE CLAUSE. 
WE EMPHASIZE THAT OUR HOLDING IS LIMITED TO PROSECUTIONS INVOLVING
CIRCUMSTANCES SUCH AS THOSE PRESENTED IN THE CASE BEFORE US.  OUR
DECISION DOES NOT TOUCH A PROSECUTION WHICH, THOUGH AS HERE FOUNDED ON
A CRIMINAL STATUTE OF GENERAL APPLICATION, DOES NOT DRAW IN QUESTION
THE LEGISLATIVE ACTS OF THE DEFENDANT MEMBER OF CONGRESS OR HIS MOTIVES
FOR PERFORMING THEM.  AND, WITHOUT INTIMATING ANY VIEW THEREON, WE
EXPRESSLY LEAVE OPEN FOR CONSIDERATION WHEN THE CASE ARISES A
PROSECUTION WHICH, THOUGH POSSIBLY ENTAILING INQUIRY INTO LEGISLATIVE
ACTS OR MOTIVATIONS, IS FOUNDED UPON A NARROWLY DRAWN STATUTE PASSED BY
CONGRESS IN THE EXERCISE OF ITS LEGISLATIVE POWER TO REGULATE THE
CONDUCT OF ITS MEMBERS.  (FN15) 

THE COURT OF APPEALS' OPINION CAN BE READ AS DISMISSING THE
CONSPIRACY COUNT IN ITS ENTIRETY.  THE MAKING OF THE SPEECH, HOWEVER,
WAS ONLY A PART OF THE CONSPIRACY CHARGE.  WITH ALL REFERENCES TO THIS
ASPECT OF THE CONSPIRACY ELIMINATED, WE THINK THE GOVERNMENT SHOULD NOT
BE PRECLUDED FROM A NEW TRIAL ON THIS COUNT, THUS WHOLLY PURGED OF
ELEMENTS OFFENSIVE TO THE SPEECH OR DEBATE CLAUSE. 

                        IV. 

THE COURT OF APPEALS HELD THAT JOHNSON WAS ENTITLED TO A NEW TRIAL ON
THE CONFLICT OF INTEREST COUNTS BECAUSE THE ADMISSION OF EVIDENCE
CONCERNING THE SPEECH ASPECT OF THE CONSPIRACY COUNT WAS PREJUDICIAL ON
THESE OTHER COUNTS AS WELL.  THE GOVERNMENT RESERVED THE RIGHT TO
CONTEST THE ORDER OF A NEW TRIAL, BUT, EXCEPT FOR A FOOTNOTE IN ITS
REPLY BRIEF, IT DID NOT SO ARGUE IN THIS COURT; ON THE CONTRARY IT
STATED IN ORAL ARGUMENT THAT IT STOOD SOLELY ON ITS POSITION WITH
REFERENCE TO THE CONSPIRACY COUNT.  (FN16)  IN THESE CIRCUMSTANCES WE
FIND NO OCCASION TO REVIEW THE COURT OF APPEALS' ASSESSMENT OF THE
RECORD IN THIS RESPECT. 

FOR THE FOREGOING REASONS WE AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS AND REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  "WHOEVER, BEING A MEMBER OF OR DELEGATE TO CONGRESS,  ...
DIRECTLY OR INDIRECTLY RECEIVES OR AGREES TO RECEIVE, ANY COMPENSATION
FOR ANY SERVICES RENDERED OR TO BE RENDERED, EITHER BY HIMSELF OR
ANOTHER, IN RELATION TO ANY PROCEEDING, CONTRACT, CLAIM, CONTROVERSY,
CHARGE, ACCUSATION, ARREST, OR OTHER MATTER IN WHICH THE UNITED STATES
IS A PARTY OR DIRECTLY OR INDIRECTLY INTERESTED, BEFORE ANY DEPARTMENT,
AGENCY, COURT MARTIAL, OFFICER, OR ANY CIVIL, MILITARY, OR NAVAL
COMMISSION, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE
THAN TWO YEARS, OR BOTH; AND SHALL BE INCAPABLE OF HOLDING ANY OFFICE
OF HONOR, TRUST, OR PROFIT UNDER THE UNITED STATES." 

FN2  "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." 

FN3  ONLY THE QUESTION OF THE APPLICABILITY OF THE SPEECH OR DEBATE
CLAUSE TO THE PROSECUTION OF JOHNSON IS BEFORE US.  THE COURT OF
APPEALS AFFIRMED THE CONVICTIONS OF CO-DEFENDANTS EDLIN AND ROBINSON
WHOSE APPEALS WERE CONSOLIDATED WITH THAT OF JOHNSON AND, EXCEPT FOR A
BRIEF AS AMICUS CURIAE SUBMITTED BY EDLIN, QUESTIONS RAISED IN THOSE
CASES HAVE NOT BEEN PRESENTED TO US.  THE DEFENDANT BOYKIN TOOK NO
APPEAL FROM HIS CONVICTION. 

FN4  SEE DIRECT EXAMINATION BY THE PROSECUTION OF MARTIN HEFLIN, APP.
182-191, ESP.  189-190: 

"Q. WHAT, IF ANYTHING, DID CONGRESSMAN JOHNSON DO WITH THE MATERIAL
WHICH MR. ROBINSON BROUGHT IN AND GAVE TO HIM?  A. AS I RECALL, MR.
JOHNSON SAID THAT HIS ADMINISTRATIVE ASSISTANT  ...  WOULD GO OVER THE
MATERIAL, TOO AND IF I AM NOT MISTAKEN, MR. JOHNSON CALLED HIM IN AND
BUARQUE TOOK THE MATERIAL AND I LEFT THE OFFICE WITH MR. BUARQUE TO
DISCUSS IT SOME MORE. 

     *         *         *         *         * 

"Q. AFTER THAT MEETING DID YOU AT ANY TIME THEREAFTER HAVE ANY
CONTACT EITHER WITH CONGRESSMAN JOHNSON OR HIS OFFICE WITH REGARD TO
THE SPEECH?  A. I TELEPHONED A TIME OR TWO THERE AND I THINK I WAS
CALLED BY MR. BUARQUE AND ASKED HIM ABOUT CERTAIN FIGURES THAT THE
INSTITUTE - BACKGROUND MATERIAL THAT MIGHT BE SUPPLIED, AND I DID
SUPPLY ADDITIONAL MATERIAL AND I BELIEVE MR. BUARQUE SENT ME A DRAFT,
HIMSELF, WITH CERTAIN PLACES, BLANK PLACES FOR FIGURES TO BE FILLED IN.
WE HAD A DISCUSSION ABOUT SOME OF THE TECHNICAL PHRASES AND
INFORMATION, STATISTICAL INFORMATION AND SO FORTH. 

"Q. YOU SUPPLIED SOME OF THE FACTS AND FIGURES FOR THE DRAFT THAT MR.
BUARQUE SENT YOU?  A. YES. 

"Q. WHAT DID YOU DO WITH THAT DRAFT ONCE YOU HAD LOOKED IT OVER?  A.
RETURNED IT." 

SEE ALSO CROSS-EXAMINATION OF MANUAL BUARQUE, APP. 488-494; CROSS
EXAMINATION OF CO-DEFENDANT ROBINSON, APP. 772-775; CROSS-EXAMINATION
OF DEFENDANT JOHNSON, TRANSCRIPT 79-93. 

FN5  SEE CROSS-EXAMINATION OF JOHNSON, TRANSCRIPT 84-86: 

"Q. AND DID YOU NOT TELL MR. HEFLIN WHEN HE CAME TO SEE YOU IN YOUR
OFFICE AFTER THAT LUNCHEON THAT HE SHOULD WORK WITH MR. BUARQUE ON THE
PREPARATION OF THE SPEECH WHICH WAS ULTIMATELY GIVEN ON JUNE 30?  A. MY
STATEMENT IS THE SAME AS IT HAS ALWAYS BEEN THAT MR. HEFLIN CAME TO MY
OFFICE, REPRESENTING HIMSELF AS A PUBLIC RELATIONS MAN, FOR A CERTAIN
INSTITUTE OF INDEPENDENT SAVINGS AND LOAN ASSOCIATIONS.  HE HAD THE
ARTICLE OF ONE OF THE LOCAL NEWSPAPERS.  A VERY UNFAIR ATTACK WHICH HE
CLAIMED HAD BEEN MADE ON SAVINGS AND LOANS.  HE TALKED WITH ME A VERY
SHORT TIME.  I TOLD HIM THAT MR. BUARQUE, MY ADMINISTRATIVE ASSISTANT,
DID ALL OF MY WRITING, ALL OF THE CONVERSATIONS AND IF THERE WERE ANY
ANSWERS TO BE MADE, - HE WENT OUT WITH ME TO THE NEXT ROOM, MET MR.
BUARQUE AND I LEFT THE TWO TOGETHER. 

     *         *   *         *         * 

"Q. YOU TOLD HIM, DID YOU NOT, THAT HE SHOULD WORK WITH MR. BUARQUE
ON THE MATTER SINCE MR. BUARQUE PREPARED YOUR SPEECHES?  A. I TOLD HIM
AT THE TIME TO DISCUSS IT WITH MR. BUARQUE AND ANY ARRANGEMENTS MR.
BUARQUE WANTED TO MAKE, WHY, HE, OF COURSE, WOULD BE COOPERATIVE WITH
HIM. 

   *         *         *         *         * 

"Q. NOW, YOU SAY THAT AT THAT TIME - I ASSUME YOU MEANT AT THE TIME
OF THE SPEECH - THAT ONE SAVINGS ASSOCIATION MEANT NOTHING MORE TO YOU
THAN ANOTHER.  IS THAT WHAT YOU REFERRED TO?  A. NOT ONLY THEN BUT
FOLLOWING THE SPEECH, TOO. 

"Q. I BELIEVE YOU TESTIFIED ON DIRECT EXAMINATION THAT YOU DID NOT
KNOW THE NAME OF FIRST CONTINENTAL SAVINGS AND LOAN OR FIRST COLONY
SAVINGS AND LOAN AT THE TIME THIS SPEECH WAS DELIVERED ON JUNE 30, IS
THAT YOUR TESTIMONY?  A. I THINK MY TESTIMONY IS THAT ONE NAME DID NOT
MEAN MORE THAN ANOTHER. 

     *         *         * *         * 

"Q. NOW, YOUR SPEECH WAS FINALLY DELIVERED OR SUBMITTED TO THE CLERK
AND IT WAS PRINTED IN THE CONGRESSIONAL RECORD, AND IT STRESSES THE
VALUE OF COMMERCIAL MORTGAGE GUARANTY INSURANCE, DOES IT NOT?  A. I
THINK IT HAS A REFERENCE TO IT, YES. 

"Q. ISN'T IT A FACT THAT AT THE TIME OF THE SPEECH, FIRST CONTINENTAL
AND FIRST COLONY WERE THE ONLY INDEPENDENT SAVINGS AND LOAN
ASSOCIATIONS IN THE STATE OF MARYLAND WHICH CARRIED COMMERCIAL MORTGAGE
GUARANTY INSURANCE?  A. I HAVE NO KNOWLEDGE OF THAT AND DID NOT KNOW AT
THE TIME. 

"Q. YOU HAVE NO KNOWLEDGE OF THAT?  A. NONE, WHATEVER. 

"Q. AS A MATTER OF FACT, THAT LANGUAGE IN YOUR SPEECH, CONGRESSMAN,
WAS A PART OF THE LANGUAGE WHICH MR. EDLIN EMPHASIZED IN HIS REPRINT,
WAS IT NOT?  A. MAY I SAY THAT I DID NOT SEE ANY OF THE SO-CALLED
'REPRINTS.'" 

AND SEE TRANSCRIPT 91: 

"Q. CONGRESSMAN, DO YOU MEAN TO TELL THE JURY THAT MR. BUARQUE PUT
THAT LANGUAGE IN THE SPEECH ABOUT THREE INDICTED INSTITUTIONS AND NONE
CONVICTED, AND YOU DID NOT INQUIRE AS TO WHICH PARTICULAR INSTITUTIONS
THEY WERE?  A. HE DID NOT TELL ME WHICH THEY WERE, THE NAMES. 

"Q. WELL, LET ME ASK YOU THIS: HOW COULD YOU, IF YOU DID NOT KNOW
WHICH INSTITUTIONS WERE UNDER INDICTMENT, HOW COULD YOU MAKE THIS
STATEMENT IN YOUR SPEECH: 

"'I PERSONALLY DO NOT KNOW ANY OF THESE INSTITUTIONS NOR ANY OF THE
CIRCUMSTANCES LEADING TO THEIR RESPECTIVE INDICTMENTS.  I HOLD NO BRIEF
FOR ANY OF THEM, ONE WAY OR ANOTHER.' 

"THAT IS THE LANGUAGE OF YOUR SPEECH, IS IT NOT?  A. YES, I SAID THAT
IS THE PREPARED SPEECH WHICH HAD BEEN TESTIFIED THAT MR. BUARQUE WITH
SOME HELP FROM HEFLIN, PREPARED." 

FN6  SEE ORAL ARGUMENT ON BEHALF OF THE GOVERNMENT, TRANSCRIPT 232
248, ESP.  244-245: 

"I SUBMIT TO YOU MEMBERS OF THE JURY, THERE IS NO OTHER LOGICAL
EXPLANATION YOU CAN MAKE BUT THAT THAT SPEECH WAS MADE SOLELY FOR THE
PURPOSES OF MR. KENNETH EDLIN.  IT WAS A DAY'S WORK FOR A DAY'S PAY FOR
THE MAN TO WHOM HE WAS SELLING HIS CONGRESSIONAL OFFICE AND HIS
CONGRESSIONAL INFLUENCE. 

"CONGRESSMAN JOHNSON HAS CLAIMED ON THE STAND IN THIS CASE THAT HE
DID NOT THEN KNOW THAT THE FIRST COLONY SAVINGS AND LOAN ASSOCIATION
WAS THEN UNDER INDICTMENT. 

"NOW, YOU WILL RECALL THE LANGUAGE IN THE SPEECH, ITSELF, THAT OUT OF
400 INDEPENDENT SAVINGS AND LOAN ASSOCATIONS IN MARYLAND, EXACTLY THREE
OF THEM HAVE BEEN INDICTED AND NONE CONVICTED. 

"'PERSONALLY, I DO NOT KNOW ANY OF THESE INDICTED INSTITUTIONS NOR
ANY OF THE CIRCUMSTANCES LEADING TO THEIR RESPECTIVE INDICTMENTS.  I
HOLD NO BRIEF FOR ANY OF THEM ONE WAY OR THE OTHER.' 

"CONGRESSMAN JOHNSON CLAIMED UNDER OATH, MEMBERS OF THE JURY, THAT HE
DID NOT EVEN BOTHER TO CHECK THE FACTS TO ASCERTAIN WHETHER HE COULD
TRUTHFULLY MAKE SUCH A STATEMENT IN HIS SPEECH. 

"IF SO, I SUBMIT TO YOU, IT WAS UTTERLY AND COMPLETELY IRRESPONSIBLE
AND REPREHENSIBLE, BUT THE GOVERNMENT SUBMITS THAT THAT IS NOT SO AND
THAT THAT WAS NOT A FACT.  THE GOVERNMENT SUBMITS THAT CONGRESSMAN
JOHNSON DID KNOW AT THAT TIME THAT BOTH FIRST COLONY AND MR. EDLIN WERE
THEN UNDER INDICTMENT IN THIS VERY COURT AND THAT HE, NEVERTHELESS MADE
THOSE STATEMENTS IN THE SPEECH WHICH HE DELIVERED ON JUNE 30, 1960. 

"THOSE STATEMENTS, MEMBERS OF THE JURY, THE GOVERNMENT SUBMITS WERE
COMPLETELY UNTRUE AND DECEITFUL." 

FN7  SEE, E.G., CROSS-EXAMINATION OF JOHNSON, TRANSCRIPT 79-81: 

"Q. NOW, CONGRESSMAN, YOU TOLD MR. ESTABROOK ON DECEMBER 20, 1961, IN
LONDON, DID YOU NOT, THAT THIS SPEECH HAD BEEN MADE AT THE URGING OF
SEVERAL OF YOUR OWN PEOPLE OR OF YOUR OWN CONSTITUENTS?  IS THAT NOT A
FACT?  A. WHICH CONFERENCE ARE YOU SPEAKING OF WITH MR. ESTABROOK? 

     *         *         *         *         * 

"Q. AS A MATTER OF FACT, THEN, EXCEPT FOR MR. BUARQUE, WHOM YOU TERM
A CONSTITUENT, NO CONSTITUENT OF YOURS EVER SPOKE TO YOU ABOUT MAKING
THAT SPEECH ON THE FLOOR OF THE HOUSE OF CONGRESS, IS THAT NOT
CORRECT?  A. IT COULD BE.  I DO NOT RECALL. 

"Q. YOU WOULD BE - YOU WOULD NOT DENY IT?  A. NO. 

"Q. IS IT NOT A FACT THAT PRIOR TO THAT SPEECH CONGRESSMAN, YOU HAD
NEVER DISCUSSED SAVINGS AND LOAN PROGRAMS OR PROBLEMS WITH ANY OF YOUR
CONSTITUENTS ON THE EASTERN SHORE OF MARYLAND?  A. OH, I THINK POSSIBLY
I HAD.  I DO NOT KNOW TO WHAT DEGREE BUT I WANT TO SAY TOO, THAT THE
SPEECH YOU REFER TO THERE WAS A MOTIVATION THAT MR. BUARQUE TESTIFIED
THAT I WAS INTERESTED IN A STATEWIDE ELECTION FOR THE SENATE IN 1964." 
FN8  SEE GENERALLY C. WITTKE, THE HISTORY OF ENGLISH PARLIAMENTARY
PRIVILEGE (OHIO STATE UNIV.  1921); NEALE, THE COMMONS' PRIVILEGE OF
FREE SPEECH IN PARLIAMENT, IN TUDOR STUDIES (SETON-WATSON ED. 1924). 

FN9  COMPARE THE KING V. BOSTON, 33 COMMW.  L.R. 386 (AUSTL.  1923);
THE QUEEN V. WHITE, 13 SUP. CT. R. 322 (N.S.W. 1875); REGINA V.
BUNTING, 7 ONT.  524 (1885), FOR COMMONWEALTH CASES DEALING WITH THE
GENERAL QUESTION OF LIABILITY OF LEGISLATORS FOR BRIBERY IN
DISTINGUISHABLE CONTEXTS.  SEE 78 HARV. L. REV. 1473, 1474. 

FN10  THE COURT IN THAT CASE ATTEMPTED TO DISTINGUISH BETWEEN THE
TRUE PRIVILEGE AND UNLAWFUL CONSPIRACIES: 

"AND WE HEREBY WILL NOT DRAW THE TRUE LIBERTIES OF PARLIAMENT-MEN
INTO QUESTION; TO WIT, FOR SUCH MATTERS WHICH THEY DO OR SPEAK IN A
PARLIAMENTARY MANNER.  BUT IN THIS CASE THERE WAS A CONSPIRACY BETWEEN
THE DEFENDANTS TO SLANDER THE STATE, AND TO RAISE SEDITION AND DISCORD
BETWEEN THE KING, HIS PEERS, AND PEOPLE; AND THIS WAS NOT A
PARLIAMENTARY COURSE. 

     *         *         *         *         * 

"THAT EVERY OF THE DEFENDANTS SHALL BE IMPRISONED DURING THE KING'S
PLEASURE:  SIR JOHN ELLIOT TO BE IMPRISONED IN THE TOWER OF LONDON, AND
THE OTHER DEFENDANTS IN OTHER PRISONS."  3 HOW.  ST. TR., AT 310. 

SEE THE ACCOUNT IN TASWELL-LANGMEAD'S ENGLISH CONSTITUTIONAL HISTORY
(PLUCKNETT ED.  1960), AT 376-378.  AFTER THE RESTORATION, SOME 38
YEARS AFTER THE TRIAL, PARLIAMENT RESOLVED THAT THE JUDGMENT "WAS AN
ILLEGAL JUDGMENT, AND AGAINST THE FREEDOM AND PRIVILEGE OF
PARLIAMENT."  THE HOUSE OF LORDS REVERSED THE CONVICTIONS IN 1668.  SEE
TASWELL-LANGMEAD, SUPRA, AT 378, NOTE 55. 

FN11  SEE HOLDSWORTH, SUPRA, AT 503-511. 

FN12  COMPARE THORNHILL V. ALABAMA, 310 U.S. 88, AND NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S. 254, FOR EXPRESSIONS OF THE CENTRAL
IMPORTANCE TO OUR POLITICAL SYSTEM OF UNINHIBITED POLITICAL EXPRESSION
AS GUARANTEED TO THE GENERAL POPULACE BY THE FIRST AND FOURTEENTH
AMENDMENTS. 

FN13  SEE, E.G., STRODE'S CASE, ONE OF THE EARLIEST AND MOST
IMPORTANT ENGLISH CASES DEALING WITH THE PRIVILEGE.  IN 1512, RICHARD
STRODE, A MEMBER OF COMMONS FROM DEVONSHIRE, INTRODUCED A BILL
REGULATING TIN MINERS WHICH APPEARS TO HAVE BEEN MOTIVATED BY A
PERSONAL INTEREST.  HE WAS PROSECUTED IN A LOCAL STANNARY COURT, A
COURT OF SPECIAL JURISDICTION TO DEAL WITH TIN MINERS, FOR VIOLATING A
LOCAL LAW MAKING IT AN OFFENSE TO OBSTRUCT TIN MINING.  HE WAS
SENTENCED AND IMPRISONED.   PARLIAMENT RELEASED HIM IN A SPECIAL BILL,
DECLARING "THAT SUITS, ACCUSEMENTS, CONDEMNATIONS, EXECUTIONS, FINES,
AMERCIAMENTS, PUNISHMENTS, CORRECTIONS, GRIEVANCES, CHARGES, AND
IMPOSITIONS, PUT OR HAD, OR HEREAFTER TO BE PUT OR HAD, UNTO OR UPON
THE SAID RICHARD, AND TO EVERY OTHER OF THE PERSON OR PERSONS AFORE
SPECIFIED THAT NOW BE OF THIS PRESENT PARLIAMENT, OR THAT OF ANY
PARLIAMENT HEREAFTER SHALL BE, FOR ANY BILL, SPEAKING, REASONING, OR
DECLARING OF ANY MATTER OR MATTERS CONCERNING THE PARLIAMENT TO BE
COMMUNED AND TREATED OF, BE UTTERLY VOID AND OF NONE EFFECT."  4 HEN. 
8, C. 8, AS REPRODUCED IN TANNER, TUDOR CONSTITUTIONAL DOCUMENTS 558,
559 (2D ED. 1930); SEE TASWELL-LANGMEAD, SUPRA, AT 248-249.  DURING THE
PROSECUTION OF SIR JOHN ELIOT IN 1629 IT WAS ARGUED THAT STRODE'S ACT
APPLIED TO ALL LEGISLATORS, BUT THE COURT HELD THAT IT WAS A PRIVATE
ACT.  3 HOW.  ST. TR. 294, 309.  IN 1667 BOTH HOUSES OF PARLIAMENT
DECLARED BY FORMAL RESOLUTIONS THAT STRODE'S ACT WAS A GENERAL LAW,
"AND THAT IT EXTENDS TO INDEMNIFY ALL AND EVERY THE MEMBERS OF BOTH
HOUSES OF PARLIAMENT, IN ALL PARLIAMENTS, FOR AND TOUCHING ALL BILLS,
SPEAKING, REASONING, OR DECLARING OF ANY MATTER OR MATTERS IN AND
CONCERNING THE PARLIAMENT, TO BE COMMUNED AND TREATED OF, AND IS ONLY A
DECLARATORY LAW OF THE ANTIENT AND NECESSARY RIGHTS AND PRIVILEGES OF
PARLIAMENT."  I HATSELL, PRECEDENTS OF PROCEEDINGS IN THE HOUSE OF
COMMONS 86-87 (1786); SEE TASWELL-LANGMEAD, SUPRA, AT 378, NOTE 55. 
THE CENTRAL IMPORTANCE OF STRODE'S CASE IN ENGLISH CONSTITUTIONAL
HISTORY IS PERSUASIVE EVIDENCE THAT THE PARLIAMENTARY PRIVILEGE MEANT
MORE THAN MERELY PREVENTING LIBEL AND TREASON PROSECUTIONS. 

FN14  THE GOVERNMENT, HOWEVER, DID INTRODUCE A REPRINT OF THE SPEECH
IN ITS CASE-IN-CHIEF, IN ORDER TO SHOW HOW THE CO-CONSPIRATORS MADE USE
OF IT.  CERTAIN PORTIONS WERE SHOWN TO BE OUTLINED IN RED BECAUSE, AS
THE PROSECUTION'S WITNESS TESTIFIED, "THESE WERE THE POINTS MOST
PERTINENT TO WHAT WE WERE TRYING TO PUT ACROSS AND FOR EASE IN THE
PERSON'S READING IT."  APP. 259.  THE USE OF A COPY OF THE SPEECH IN
THIS CONTEXT NECESSARILY REQUIRED THE JURY TO READ THOSE PORTIONS AND
TO REFLECT UPON ITS SUBSTANCE. 

FN15  CF. NOTE, THE BRIBED CONGRESSMAN'S IMMUNITY FROM PROSECUTION,
75 YALE L.J. 335, 347-348 (1965). 

FN16  IN ORAL ARGUMENT, GOVERNMENT COUNSEL STATED AS FOLLOWS: 

"AND SO THE QUESTION THAT WE BROUGHT TO THE COURT, AND THE ONLY
QUESTION THAT WE THINK IS PROPERLY INVOLVED IN THIS CASE NOW, REVOLVES
AROUND THE TAKING OF MONEY TO GIVE A SPEECH ON THE FLOOR OF CONGRESS." 

QUESTION FROM THE BENCH: "WELL, WAS THERE TO BE A NEW TRIAL ON THE
OTHER PHASE OF IT?" 

GOVERNMENT COUNSEL:  "IT (THE COURT OF APPEALS) ORDERED A NEW TRIAL
ON THE OTHER PHASE.  AND WE HAVE NOT BROUGHT THAT ISSUE HERE.  WE
RESERVED IT IN OUR PETITION BUT WE DID NOT ARGUE IT, I MIGHT SAY
LARGELY BECAUSE IT CANNOT BE DETERMINED WITHOUT READING THE WHOLE
RECORD.  THE QUESTION IN THIS CASE WHICH WE DID BRING HERE, AND WHICH
WE THINK IS THE QUESTION INVOLVED, IS THIS:  ARTICLE 1, SECTION 6, OF
THE CONSTITUTION PROVIDES THAT FOR ANY SPEECH OR DEBATE IN EITHER
HOUSE, NO MEMBER OF CONGRESS SHALL BE QUESTIONED IN ANY OTHER PLACE. 
AND AS WE VIEW IT, THE QUESTION IS, DOES THAT SPEECH OR DEBATE CLAUSE
MEAN THAT CONGRESS IS WITHOUT POWER UNDER THE CONSTITUTION TO MAKE IT A
CRIME TRIABLE IN COURT FOR A CONGRESSMAN TO TAKE MONEY TO MAKE A
SPEECH?" 

MR. JUSTICE BLACK TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE BRENNAN JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN THE LIMITED HOLDING OF THE COURT THAT THE USE OF THE
CONGRESSMAN'S SPEECH DURING THIS PARTICULAR TRIAL - WITH AN EXAMINATION
INTO ITS AUTHORSHIP, MOTIVATION AND CONTENT - WAS VIOLATIVE OF THE
SPEECH OR DEBATE CLAUSE.  I ALSO JOIN THE COURT IN ITS REMAND OF THE
CONSPIRACY COUNT FOR A NEW TRIAL, THIS TIME PURGED OF OFFENSIVE
MATTER.  THE COURT'S REFUSAL TO DECIDE THE VALIDITY OF THE CONVICTION
UNDER THE SEVEN SUBSTANTIVE COUNTS, HOWEVER, PROMPTS ME TO DISSENT.  IN
MY VIEW, THE CONFLICT OF INTEREST COUNTS ARE PROPERLY BEFORE US, RAISE
IMPORTANT QUESTIONS AND SHOULD BE RESOLVED NOW SINCE THE RESPONDENT
WILL PROBABLY RAISE THESE ISSUES ON HIS FORTHCOMING REPROSECUTION. 

                                        I. 

THE COURT EXPLAINS ITS REFUSAL TO REACH THE SUBSTANTIVE COUNTS BY
REFERRING TO A SINGLE STATEMENT MADE BY THE GOVERNMENT'S COUNSEL AT THE
OUTSET OF ORAL ARGUMENT, P. 186, N. 16, ANTE.  IN THE SAME COLLOQUY,
THE GOVERNMENT REMARKED THAT IT DID NOT CONSIDER THE ISSUES RAISED BY
THE SUBSTANTIVE COUNTS TO BE OF GENERAL IMPORTANCE, AND FELT THAT THE
QUESTION OF THE EFFECT OF THE TAINTED EVIDENCE ON THESE COUNTS WOULD
UNAVOIDABLY REQUIRE AN EXAMINATION OF THE ENTIRE 1,300-PAGE RECORD. 
PRIOR TO ORAL ARGUMENT, THE GOVERNMENT HAD ARGUED THESE ISSUES
EXHAUSTIVELY IN THE COURT OF APPEALS, AND HAD MENTIONED THEM IN ITS
PETITION FOR CERTIORARI IN COMPLIANCE WITH SUPREME COURT RULE
40(1)(D)(1) AND (2), AND IN ITS REPLY BRIEF ON THE MERITS.  BOTH IN ITS
REPLY BRIEF AND LATER IN ORAL ARGUMENT, IN ANSWER TO INQUIRIES FROM THE
BENCH, IT CONTENDED THAT THE EVIDENCE, ARGUMENTS AND INSTRUCTIONS ON
THE CONSPIRACY COUNT WERE DISTINCT FROM THE SUBSTANTIVE COUNTS.  AT
BEST, THEN, THE GOVERNMENT'S POSITION IS AMBIGUOUS, IF NOT PUZZLING. 
(FN1)  BEYOND THAT, THE RESPONDENT HIMSELF SPECIFICALLY URGED THIS
COURT TO CONSIDER THE ISSUES IN HIS BRIEF ON THE MERITS, PP. 100-101
AND N. 86, DEVOTED 33 PAGES OF ARGUMENT TO THIS PHASE OF THE CASE AND
ADDRESSED HIMSELF TO THE QUESTIONS ON ORAL ARGUMENT.  UNDER THESE
UNIQUE CIRCUMSTANCES, I THINK IT IS OUR DUTY CAREFULLY TO SCRUTINIZE
ALL THE FACTS AND ISSUES INVOLVED IN THE PROSECUTION. 

            II. 

AFTER READING THE RECORD, IT IS MY CONCLUSION THAT THE COURT OF
APPEALS ERRED IN DETERMINING THAT THE EVIDENCE CONCERNING THE SPEECH
INFECTED THE JURY'S JUDGMENT ON THE SUBSTANTIVE COUNTS.  THE EVIDENCE
AMPLY SUPPORTS THE PROSECUTION'S THEORY AND THE JURY'S VERDICT ON THESE
COUNTS - THAT THE RESPONDENT RECEIVED OVER $20,000 FOR ATTEMPTING TO
HAVE THE JUSTICE DEPARTMENT DISMISS AN INDICTMENT AGAINST HIS CO
CONSPIRATORS, WITHOUT DISCLOSING HIS ROLE IN THE ENTERPRISE.  THIS IS
THE CLASSIC EXAMPLE OF A VIOLATION OF SEC 281 BY A MEMBER OF THE
CONGRESS.  (FN2)  SEE MAY V. UNITED STATES, 175 F.2D 994, 1006
(C.A.D.C. CIR.); UNITED STATES V. BOOTH, 148 F. 112, 117 (CIR. CT. D.
ORE.).  THE ARGUMENTS OF GOVERNMENT COUNSEL AND THE COURT'S
INSTRUCTIONS SEPARATING THE CONSPIRACY FROM THE SUBSTANTIVE COUNTS SEEM
UNIMPEACHABLE.  THE SPEECH WAS A MINOR PART OF THE PROSECUTION.  THERE
WAS NOTHING IN IT TO INFLAME THE JURY AND THE RESPONDENT POINTED WITH
PRIDE TO IT AS EVIDENCE OF HIS VIGILANCE IN PROTECTING THE FINANCIAL
INSTITUTIONS OF HIS STATE.  THE RECORD FURTHER REVEALS THAT THE TRIAL
PARTICIPANTS WERE WELL AWARE THAT A FINDING OF CRIMINALITY ON ONE COUNT
DID NOT AUTHORIZE SIMILAR CONCLUSIONS AS TO OTHER COUNTS, AND I BELIEVE
THAT THIS SALUTARY PRINCIPLE WAS CONSCIENTIOUSLY FOLLOWED.  THEREFORE,
I WOULD AFFIRM THE CONVICTIONS ON THE SUBSTANTIVE COUNTS. 

FN1  I CONFESS TO SOME SURPRISE THAT THE GOVERNMENT ALMOST ABANDONED
THESE ISSUES WHEN IN THIS COURT, EVEN THOUGH THE MAJOR QUESTION IN THE
CASE IS THE APPLICATION OF THE SPEECH OR DEBATE CLAUSE.   IN THE FIRST
PLACE, THIS COURT HAS NOT HAD OCCASION TO DEAL WITH THE CONFLICT OF
INTEREST STATUTES AS APPLIED TO A MEMBER OF CONGRESS SINCE 1906, BURTON
V. UNITED STATES, 202 U.S. 344, AND THEY REMAIN VIABLE ALTHOUGH LATELY
REVISED, SEE MANNING, FEDERAL CONFLICT OF INTEREST LAW 14-73 (1964). 
MOREOVER, THE GOVERNMENT ITSELF HAS ARGUED STRENUOUSLY AND SUCCESSFULLY
IN MANY CASES THAT AN ERRONEOUS CONVICTION ON ONE COUNT DOES NOT
VITIATE A CONVICTION ON OTHER COUNTS, ESPECIALLY WHERE CONCURRENT
SENTENCES ARE INVOLVED, SEE, E.G., UNITED STATES V. ROMANO, 382 U.S.
136; UNITED STATES V. GAINEY, 380 U.S. 63, 65; SINCLAIR V. UNITED
STATES, 279 U.S. 263, 299; BARNARD V. UNITED STATES, 342 F.2D 309 (C.A.
9TH CIR.), CERTIORARI DENIED, 382 U.S. 948.  THERE ARE, IN ADDITION,
NUMEROUS CASES IN WHICH THE ISSUE WAS RAISED IN THIS COURT AND THE
PETITIONER-DEFENDANT WAS DENIED CERTIORARI. 

FN2  THE SENTENCE GIVEN WAS LENIENT - SIX MONTHS ON EACH COUNT, BUT
ALL TO RUN CONCURRENTLY.  THE CONSPIRACY STATUTE, 18 U.S.C. SEC 371,
AUTHORIZES A FIVE-YEAR PRISON TERM AND A $10,000 FINE, AND THE CONFLICT
OF INTEREST STATUTE IN EFFECT AT THE TRIAL PERMITTED A TWO-YEAR
SENTENCE AND A $10,000 FINE FOR EACH VIOLATION, 18 U.S.C. SEC 281. 
..END :








IDAHO SHEET METAL WORKS V. WIRTZ 383 U.S. 190 


NO. 30.  ARGUED DECEMBER 8, 1965.  - DECIDED FEBRUARY 24, 1966.* - 335
F.2D 952, AFFIRMED; 330 F.2D 804, REVERSED. 

*TOGETHER WITH NO. 31, WIRTZ, SECRETARY OF LABOR V. STEEPLETON
GENERAL TIRE CO., INC., ET AL., ON CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT. 


IN NO. 30 THE EMPLOYER, PETITIONER, HAS 12 WORKERS WHO FABRICATE,
INSTALL AND REPAIR SHEET METAL PRODUCTS.  WHILE ABOUT 60% OF SALES IN
NUMBER ARE TO THE GENERAL PUBLIC, ABOUT 83% OF GROSS INCOME COMES FROM
WORK DONE, GENERALLY ON INDIVIDUAL SPECIFICATIONS FOR SIZABLE PIECES OF
EQUIPMENT, FOR FIVE POTATO PROCESSING COMPANIES WHICH DEHYDRATE AND
FREEZE POTATOES FOR INTERSTATE SHIPMENT.  IN REPLY TO RESPONDENT'S
CLAIM THAT IT WAS VIOLATING THE OVERTIME PROVISIONS OF THE FAIR LABOR
STANDARDS ACT OF 1938, PETITIONER DENIED THAT ITS WORKERS ENGAGED IN OR
PRODUCED GOODS FOR INTERSTATE COMMERCE AND ASSERTED THAT IT WAS A
"RETAIL OR SERVICE ESTABLISHMENT" UNDER SEC 13(A)(2) OF THE ACT, WHICH
EXEMPTS CERTAIN ESTABLISHMENTS 75% OF WHOSE DOLLAR VOLUME OF SALES IS
NOT FOR RESALE AND IS RECOGNIZED AS RETAIL SALES OR SERVICES IN THE
INDUSTRY.  PETITIONER SHOWED THAT 75% OF ITS DOLLAR VOLUME WAS NOT FOR
RESALE AND THAT ITS OFFICIALS AND SALESMEN WHO SELL TO IT REGARDED THE
BUSINESS AS RETAIL.  THE DISTRICT COURT AGREED WITH PETITIONER, BUT THE
COURT OF APPEALS REVERSED.  RESPONDENT EMPLOYER IN NO. 31 IS A
FRANCHISED TIRE DEALER WITH 47 EMPLOYEES ENGAGED IN SELLING, RECAPPING
AND REPAIRING TIRES.  MORE THAN HALF ITS GROSS INCOME COMES FROM SALES
AND REPAIRS OF TIRES FURNISHED TO BUSINESSES USING HEAVY INDUSTRIAL OR
CONSTRUCTION VEHICLES OR FLEETS OF TRUCKS, OPERATING TO A SIZABLE BUT
UNSPECIFIED EXTENT IN INTERSTATE COMMERCE.  RESPONDENT ALLEGED THAT IT
CAME WITHIN THE SEC 13(A)(2) EXEMPTION AND SHOWED THAT 75% OF ITS SALES
WERE NOT FOR RESALE AND THAT THE INDUSTRY'S USE OF THE WORD RETAIL
APPLIED TO ALL SALES NOT FOR RESALE, DESPITE THE COMMERCIAL CHARACTER
OF THE TIRES AND AN ESTABLISHED PATTERN OF QUANTITY DISCOUNTS. 
PETITIONER SHOWED THAT THE WORD RETAIL WAS USED BY THE INDUSTRY IN
OTHER SENSES WHICH EXCLUDED COMMERCIAL SALES AND THAT RESPONDENT'S
COMMERCIAL CUSTOMERS DID NOT REGARD THEIR PURCHASES AS AT RETAIL. 
PETITIONER ALSO INTRODUCED HIS OFFICIAL GUIDELINES, WHICH CLASS AS
NONRETAIL ALL SALES TO FLEETS OF FIVE OR MORE VEHICLES AT "WHOLESALE
PRICES," DEFINED AS THOSE CHARGED ON SALES FOR RESALE OR ON SALES TO 10
VEHICLE FLEETS.  THE DISTRICT COURT HELD RESPONDENT TO BE WITHIN THE
INTERSTATE COMMERCE COVERAGE OF THE ACT BUT TO BE ENTITLED TO THE
EXEMPTION, AND THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE INDUSTRY-USAGE TEST IS NOT IN ITSELF CONTROLLING IN
DETERMINING WHEN BUSINESS TRANSACTIONS ARE RETAIL SALES UNDER THE ACT. 
PP. 199-202. 

2.  WHILE THE TYPICAL RETAIL SALE IS ONE INVOLVING GOODS OR SERVICES
THAT ARE FREQUENTLY ACQUIRED FOR FAMILY OR PERSONAL USE, CONGRESS ALSO
INTENDED THAT THE RETAIL EXEMPTION EXTEND SOMEWHAT BEYOND CONSUMER
GOODS AND SERVICES, TO INCLUDE CERTAIN NONDOMESTIC OR NONCONSUMER
PRODUCTS - FOR EXAMPLE, FARM IMPLEMENTS AND CERTAIN TYPES OF TRUCKS. 
PP. 203-204. 

3.  WITHIN THE CATEGORY OF GOODS AND SERVICES THAT CAN BE SOLD AT
RETAIL, NOT EVERY SALE CAN BE SO CLASSIFIED.  SALES FOR RESALE ARE
EXCLUDED BY THE LANGUAGE OF THE EXEMPTION, AND THE LEGISLATIVE HISTORY
AND COMMON USAGE INDICATE THAT THE TERM RETAIL BECOMES LESS APPROPRIATE
AS THE QUANTITY AND PRICE DISCOUNT INCREASE IN A TRANSACTION.  PP. 204
205. 

4.  THE SHEET METAL COMPANY IS DISQUALIFIED AS A RETAIL ESTABLISHMENT
SINCE 83% OF ITS GROSS INCOME IS DERIVED FROM THE FABRICATION AND
MAINTENANCE OF POTATO PROCESSING EQUIPMENT, WHICH APPEARS TO HAVE NO
PRIVATE OR NONCOMMERCIAL UTILITY AND BEARS LITTLE RESEMBLANCE TO THOSE
STRICTLY COMMERCIAL ARTICLES WHICH MAY BE SOLD AT RETAIL.  PP. 205
207. 

5.  THE TIRE COMPANY, WHICH AS THE EMPLOYER HAS THE BURDEN OF PROOF
IN ESTABLISHING ITS EXEMPTION UNDER SEC 13(A)(2), HAS NOT MET THAT
BURDEN, AS IT HAS FAILED TO SHOW THAT THE TRANSACTIONS QUALIFIED AS
RETAIL UNDER THE SECRETARY'S GUIDELINES FOR RETAIL SALES, WHICH IN
PERTINENT PART ARE SUSTAINED IN VIEW OF THE COMMON CONCEPTION OF THE
TERM RETAIL AS EXCLUDING SALES MADE IN QUANTITY AND AT SIGNIFICANT
DISCOUNTS, AND IN VIEW OF THE LEGISLATIVE HISTORY IN RESPECT THERETO. 
PP. 207-209. 

IDAHO SHEET METAL WORKS, INC. V. WIRTZ, SECRETARY OF LABOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE COMMON QUESTION PRESENTED BY THESE TWO CASES IS THE MEANING OF
THE PHRASE "RETAIL OR SERVICE ESTABLISHMENT" AS THAT LANGUAGE IS USED
IN THE EXEMPTIVE PROVISIONS OF THE FEDERAL WAGE AND HOUR STATUTE.  WE
FIRST SET FORTH THE STATUTE AND DESCRIBE THE TWO CASES BEFORE US, THEN
EXAMINE THE HISTORY AND CONTENT OF THE EXEMPTING CLAUSE, AND FINALLY
APPLY THE RESULTING ANALYSIS TO THE FACTS OF EACH CASE. 

               I. 

THE FAIR LABOR STANDARDS ACT OF 1938 ENACTED A COMPREHENSIVE SCHEME
PROVIDING FOR MINIMUM WAGES AND OVERTIME PAY FOR WORKERS "ENGAGED IN"
OR "IN THE PRODUCTION OF GOODS FOR" INTERSTATE AND FOREIGN COMMERCE. 
(FN1)  AMONG OTHER EXEMPTIONS, CONGRESS BY SEC 13(A)(2) OF THE ACT HAS
EXCLUDED FROM THE STATUTE'S WAGE AND HOUR PROTECTIONS THOSE EMPLOYEES
WORKING FOR CERTAIN "RETAIL OR SERVICE" ESTABLISHMENTS.  (FN2)  TO
QUALIFY FOR THIS EXEMPTION IN ITS PRESENT FORM, AN ESTABLISHMENT MUST
MEET THREE TESTS:  FIRST, IT MUST MAKE MORE THAN 50% OF ITS ANNUAL
DOLLAR VOLUME OF SALES OF GOODS OR SERVICES WITHIN THE STATE; (FN3)
SECOND, IT MUST MEET ONE OF FOUR TESTS DESIGNATED "(I)-(IV)," CHIEFLY
DESIGNED TO PREVENT MOST VERY LARGE EMPLOYERS FROM ENJOYING THE
EXEMPTION; (FN4) THIRD, IT MUST BE A "RETAIL OR SERVICE
ESTABLISHMENT."  REGARDING THIS THIRD REQUIREMENT - WHICH IS THE FOCUS
OF THIS DECISION - SEC 13(A)(2) STATES THAT "A 'RETAIL OR SERVICE
ESTABLISHMENT' SHALL MEAN AN ESTABLISHMENT 75 PER CENTUM OF WHOSE
ANNUAL DOLLAR VOLUME OF SALES OF GOODS OR SERVICES (OR OF BOTH) IS NOT
FOR RESALE AND IS RECOGNIZED AS RETAIL SALES OR SERVICES IN THE
PARTICULAR INDUSTRY." 

OF THE CASES BEFORE US, THE FIRST ONE, NO. 30, STEMS FROM TWO
CONSOLIDATED ACTIONS BROUGHT BY THE SECRETARY OF LABOR AGAINST IDAHO
SHEET METAL WORKS, INC. (IDAHO SHEET).  BY ONE ACTION THE SECRETARY
SOUGHT TO ENJOIN FUTURE DISREGARD OF THE ACT'S OVERTIME PROVISIONS, AND
BY THE OTHER HE SOUGHT TO COLLECT ON BEHALF OF ONE EMPLOYEE UNPAID
OVERTIME COMPENSATION FOR A PERIOD DURING THE YEAR 1960.  SEE SECS 15
17, 52 STAT. 1068-1069, AS AMENDED, 29 U.S.C. SECS 215-217 (1964 ED.). 
THE ENSUING LITIGATION ESTABLISHED THAT IDAHO SHEET OPERATES A PLANT IN
BURLEY, IDAHO, WHERE IT EMPLOYS ABOUT 12 WORKERS TO FABRICATE, INSTALL,
AND MAINTAIN SHEET METAL PRODUCTS.  MANY ARTICLES ARE SOLD TO
INDIVIDUALS, FARMERS, AND LOCAL MERCHANTS, THE PLANT HAS DISPLAY RACKS
TO SHOW ITS WARES, AND ABOUT 60% OF SALES IN NUMBER ARE SAID TO BE TO
"THE GENERAL PUBLIC" AS OPPOSED TO INDUSTRIAL CUSTOMERS.  ABOUT 83% OF
THE GROSS INCOME, HOWEVER, IS DERIVED FROM METAL WORK DONE ON EQUIPMENT
USED BY FIVE POTATO PROCESSING COMPANIES WHICH DEHYDRATE AND FREEZE THE
POTATOES FOR INTERSTATE SHIPMENT. 

FOR ITS DEFENSE, IDAHO SHEET DENIED ITS WORKERS WERE ENGAGED IN OR
PRODUCING GOODS FOR INTERSTATE COMMERCE.  IT ALSO CLAIMED TO BE AN
EXEMPT RETAIL OR SERVICE ESTABLISHMENT, ADDUCING PROOF THAT OVER 75% OF
ITS DOLLAR VOLUME OF SALES WAS NOT FOR RESALE AND THAT ITS OFFICIALS
AND SALESMEN WHO SELL TO IT REGARDED THE BUSINESS AS RETAIL.  THE
DISTRICT COURT HELD THAT IDAHO SHEET WAS OUTSIDE THE INTERSTATE
COMMERCE COVERAGE OF THE ACT AND WAS IN ANY CASE EXEMPT.  THE COURT OF
APPEALS FOR THE NINTH CIRCUIT REVERSED ON BOTH POINTS AND HELD IN FAVOR
OF THE SECRETARY.  335 F.2D 952.  WE GRANTED CERTIORARI LIMITED TO THE
QUESTION WHETHER IDAHO SHEET WAS A RETAIL OR SERVICE ESTABLISHMENT
WITHIN THE MEANING OF THE ACT.  380 U.S. 905. 

IN THE OTHER CASE BEFORE US, NO. 31, THE SECRETARY OF LABOR SUED THE
STEEPLETON GENERAL TIRE COMPANY (STEEPLETON) AND ITS PRESIDENT TO
REQUIRE COMPLIANCE WITH THE MINIMUM WAGE, OVERTIME PAY, AND
RECORDKEEPING PROVISIONS OF THE ACT.  STEEPLETON, WHICH IS LOCATED IN
MEMPHIS, TENNESSEE, AND EMPLOYS ABOUT 47 WORKERS, IS A FRANCHISED TIRE
DEALER ENGAGED IN THE SALE, RECAPPING, AND REPAIR OF TIRES.  SOME OF
STEEPLETON'S INCOME DERIVES FROM DEALINGS WITH PRIVATE CUSTOMERS BUT
MORE THAN HALF THE GROSS INCOME COMES FROM SALES AND REPAIRS OF TIRES
FURNISHED TO BUSINESSES OPERATING HEAVY INDUSTRIAL OR CONSTRUCTION
VEHICLES OR OPERATING FLEETS OF TRUCKS; APPARENTLY A SIZABLE THOUGH
UNSPECIFIED PORTION OF THESE COMMERCIAL CUSTOMERS OPERATED THEIR
EQUIPMENT IN INTERSTATE COMMERCE. 

THE DISTRICT COURT DETERMINED THAT STEEPLETON CAME WITHIN THE
INTERSTATE COMMERCE COVERAGE OF THE ACT, AND THAT ISSUE IS NO LONGER IN
THE CASE.  ALLEGING ITSELF TO BE EXEMPT UNDER SEC 13(A)(2), STEEPLETON
SHOWED THAT 75% OR MORE IF ITS SALES WERE NOT FOR RESALE AND THAT THE
INDUSTRY'S PREDOMINANT AND LONG-STANDING USE OF THE WORD RETAIL APPLIED
THAT TERM TO ALL TIRE SALES NOT FOR RESALE, DESPITE THE COMMERCIAL
CHARACTER OF THE TIRES AND THE ESTABLISHED PATTERN OF QUANTITY
DISCOUNTS.  THE ONLY EXPLANATION OFFERED FOR THIS USE WAS THAT IT
CONFORMED TO MANY STATE SALES TAX STATUTES.  THE SECRETARY SHOWED THAT
THE INDUSTRY SOMETIMES USED THE WORD RETAIL IN OTHER SENSES THAT
EXCLUDED COMMERCIAL SALES AND THAT COMMERCIAL CUSTOMERS OF STEEPLETON
DID NOT REGARD THEIR PURCHASES AS RETAIL TRANSACTIONS.  THE DISTRICT
COURT HELD STEEPLETON TO BE ENTITLED TO THE EXEMPTION.  THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT AFFIRMED THE DISTRICT COURT IN ALL
RESPECTS, 330 F.2D 804, AND WE GRANTED CERTIORARI AT THE BEHEST OF THE
SECRETARY TO CONSIDER WHETHER STEEPLETON QUALIFIED AS A RETAIL OR
SERVICE ESTABLISHMENT.  380 U.S. 904. 

THE APPROACH OF THE SIXTH CIRCUIT, WHICH TOOK INDUSTRY USAGE AS
CONTROLLING, AND THAT OF THE NINTH CIRCUIT, WHICH REJECTED IT AS THE
SOLE TEST, REPRESENT IRRECONCILABLE INTERPRETATIONS OF THE CRITICAL
STATUTORY LANGUAGE.  WHILE SUPPORT CAN BE MUSTERED FOR BOTH VIEWS, WE
BELIEVE THE NINTH CIRCUIT IS CORRECT AND ON THIS POINT FOLLOW OUR
EARLIER DECISION IN MITCHELL V. KENTUCKY FINANCE CO., 359 U.S. 290. 
AFTER REJECTING THE INDUSTRY'S USAGE AS CONTROLLING, WE FACE THE
FURTHER DIFFICULT QUESTION OF WHAT CRITERIA DO DETERMINE WHEN BUSINESS
TRANSACTIONS ARE RETAIL UNDER THE ACT; TO THIS QUESTION IT IS STILL
LESS EASY TO RETURN A CLEAR-CUT ANSWER, BUT OUR ANALYSIS OF THE MATTER
LEADS US TO CONCLUDE THAT NEITHER IDAHO SHEET NOR STEEPLETON QUALIFIES
AS A RETAIL OR SERVICE ESTABLISHMENT. 

                            II. 

TO CONSTRUE THE PRESENT LANGUAGE OF THE EXEMPTION DEMANDS A KNOWLEDGE
OF ITS ORIGINS.  SECTION 13(A)(2), AS IT APPEARED IN THE 1938
ENACTMENT, USED THE PRESENT PHRASE "RETAIL OR SERVICE ESTABLISHMENT" TO
DELIMIT THE EXEMPTION BUT DID NOT FURTHER DEFINE THE CONCEPT.  (FN5)
THE DEPARTMENT OF LABOR'S WAGE AND HOUR ADMINISTRATOR INITIALLY MADE
HIS INTERPRETATION OF THE RETAIL EXEMPTION KNOWN THROUGH AN
INTERPRETATIVE BULLETIN AND THROUGH VARIOUS OFFICIAL STATEMENTS.  (FN6)
TO SUMMARIZE VERY GENERALLY, THE ADMINISTRATOR VIEWED A RETAIL
ESTABLISHMENT AS ONE SELLING GOODS OR SERVICES TO PRIVATE INDIVIDUALS
FOR PERSONAL OR FAMILY CONSUMPTION; SALES OF THESE SAME GOODS OR
SERVICES TO BUSINESSES OR STATE AGENCIES REMAINED RETAIL IF SOLD AT THE
NORMAL PRICE CHARGED PRIVATE CONSUMERS OR IN QUANTITIES A PRIVATE
CONSUMER WOULD BUY.  SEE INTERP.  BULL.  NO. 6, PARA 14, IN 1942 WH
MANUAL, P. 330.  HOWEVER, THERE WERE DEVIATIONS FROM THIS CONSUMER
GOODS STANDARD IN FAVOR OF EMPLOYERS, NOTABLE INSTANCES BEING THE
EXEMPTION OF FARM IMPLEMENT DEALERS AND LINEN SUPPLY FIRMS SUPPLYING
COMMERCIAL CUSTOMERS.  SEE STATEMENTS OF THE ADMINISTRATOR, IN 1944
1945 WH MANUAL, PP. 469-470. 

IN 1946 THIS COURT DECIDED ROLAND CO. V. WALLING, 326 U.S. 657,
HOLDING INTER ALIA THAT A BUSINESS ENGAGED IN COMMERCIAL WIRING,
ELECTRICAL CONTRACTING FOR INDUSTRY, AND REPAIR AND REPLACEMENT OF
ELECTRIC MOTORS AND GENERATORS DID NOT CONSTITUTE A RETAIL OR SERVICE
ESTABLISHMENT.  THE OPINION USED CONSIDERABLE LANGUAGE SUGGESTING THAT
NO SALE OF ANY ARTICLE FOR BUSINESS OR PROFIT-MAKING USE AS OPPOSED TO
PERSONAL CONSUMPTION COULD QUALIFY AS A RETAIL SALE, A POSITION WHICH
SUPPORTED THE RESULT BUT WENT FAR BEYOND A NECESSARY HOLDING.  SEE 326
U.S., AT 673-677.  THIS CASE, AND SEVERAL OTHERS IN THIS VEIN,  (FN7)
PROMPTED THE ADMINISTRATOR TO REPORT TO CONGRESS THAT CERTAIN HITHERTO
EXEMPT CLASSES OF BUSINESS WERE ENDANGERED - NOTABLY FARM EQUIPMENT
DEALERS - AND TO RECOMMEND AMENDING LEGISLATION.  SEE 1948 WAGE AND
HOUR DIVISION, ANNUAL REPORT, PP. 120-121. 

THE ADMINISTRATOR PROPOSED, SO FAR AS IMMEDIATELY RELEVANT, TO DEFINE
A RETAIL ESTABLISHMENT AS ONE DERIVING 75% OF ITS INCOME FROM RETAIL
SALES AND THEN TO DEFINE AS RETAIL SALES THOSE MADE TO PRIVATE
INDIVIDUALS FOR PERSONAL OR FAMILY CONSUMPTION, SALES OF THE SAME ITEMS
TO ANY OTHER CUSTOMER IF NOT FOR RESALE AND IF SIMILAR IN TYPE AND
QUANTITY, AND SALES TO FARMERS OF GOODS OF THE TYPE AND QUANTITY USED
ON THE ORDINARY FARM.  WHEN CONGRESS CONVENED IN 1949, A NUMBER OF
BILLS WERE INTRODUCED TO AMEND THE ACT IN VARIOUS RESPECTS.  THE BILL
REPORTED OUT BY THE HOUSE COMMITTEE AND THE SUBSTITUTE MEASURE FIRST
DEBATED BY THE HOUSE ADOPTED THE ADMINISTRATOR'S BASIC PROPOSAL, BUT A
FURTHER SUBSTITUTE BACKED BY AN OPPOSING COALITION AND INTRODUCED AS AN
AMENDMENT DURING THE DEBATES FINALLY PREVAILED AND WAS SENT TO THE
SENATE.  (FN8)  THIS BILL AS PASSED CONTAINED THE DEFINITION OF EXEMPT
RETAIL AND SERVICE ESTABLISHMENTS THAT BECAME LAW IN 1949 AND WHICH
REMAINS THE LAW TODAY.   (FN9)  THE SENATE DURING THE DEBATE OF ITS OWN
COMMITTEE-REPORTED BILL, WHICH DID NOT AMEND THE RETAIL EXEMPTION,
AMENDED THE SENATE BILL TO CONFORM TO THE HOUSE'S REVISION OF SEC
13(A)(2).  (FN10)  THUS, WHEN THE HOUSE-SENATE CONFERENCE COMMITTEE MET
TO IRON OUT OTHER DIFFERENCES IN THE RESPECTIVE VERSIONS OF THE
LEGISLATION, UNIFORMITY IN THE AMENDMENT TO SEC 13(A)(2) ALREADY
EXISTED.   THE DEBATES ON THE RETAIL EXEMPTION IN EACH HOUSE WERE
SUBSTANTIAL AND SEVERAL LEGISLATIVE DOCUMENTS CONSTRUE THE AMENDED

IN LIGHT OF THE LEGISLATIVE HISTORY, THE FIRST QUESTION TO BE FACED
IS WHETHER THE 1949 AMENDMENT REQUIRES THE SECRETARY TO TREAT AS RETAIL
ANY SALE OF GOODS OR SERVICES NOT FOR RESALE THAT IS MOST CUSTOMARILY
DESCRIBED OR LABELED AS A RETAIL TRANSACTION BY THOSE IN THE INDUSTRY,
ACTING OF COURSE IN GOOD FAITH.  IF THE ANSWER WERE YES, THEN BOTH
IDAHO SHEET AND STEEPLETON WOULD DESERVE EXEMPTIONS WITHOUT MORE ADO,
SINCE ADMITTEDLY THE PREDOMINANT OR SOLE USAGE OF THOSE IN THE INDUSTRY
APPLIED THE TERM RETAIL TO THE QUESTIONED SALES.  IT SHOULD NOT BE SAID
THAT THIS READING IS WITHOUT SUPPORT.  MOST IMPORTANTLY, IT WOULD
APPEAR TO FOLLOW FROM THE MOST LITERAL READING OF THE STATUTE; THE
PHRASE "RECOGNIZED AS RETAIL  ...  IN THE PARTICULAR INDUSTRY" WELL
LENDS ITSELF TO AN INQUIRY INTO HOW THE BUSINESSMEN CONCERNED TERM
THEIR DEALINGS.  SOME STATEMENTS IN THE DEBATES EXPLICITLY FOSTER THIS
READING, FOR EXAMPLE, THE COMMENT BY SENATOR HOLLAND WHO SPONSORED THE
AMENDMENT IN THE SENATE THAT UNDER HIS APPROACH, "FOR DIFFERENT
COMMODITIES  ...  WE HAVE TO FIND THE DEFINITION WHICH IS UNDERSTOOD BY
THE PEOPLE DEALING IN THAT INDUSTRY."  95 CONG. REC.  12519.  (FN12)
WE DO NOT AGREE WITH THE GOVERNMENT THAT THIS READING IS NECESSARILY
INFIRM BECAUSE THE SECRETARY AND COURTS MAY HAVE TO SEEK A STANDARD OR
PREDOMINANT USE OF THE WORD RETAIL AMONG SEVERAL USES EXTANT IN THE
INDUSTRY.  CERTAINLY WE DO NOT AGREE WITH THE FURTHER SUGGESTION THAT
THIS LITERAL READING MUST GIVE THE INDUSTRY SELF-DETERMINATION AS TO
WHETHER THE EXEMPTION APPLIES; COURTS ARE NOT INCOMPETENT TO
DISTINGUISH BETWEEN A LEGITIMIZED USAGE FIXED BY ESTABLISHED PRACTICE
AND ONE RECENTLY INSTITUTED WITH THE AIM OF AVOIDING THE LAW. 

ON BALANCE, HOWEVER, THE ARGUMENTS AGAINST THIS LITERAL READING ARE
MORE PERSUASIVE.  AT THE START, SUCH A READING WOULD ATTRIBUTE TO
CONGRESS A PURPOSE GOING WELL BEYOND ITS REITERATED EXPLANATION THAT
THE AMENDMENT WAS DESIGNED TO OVERTURN THE SWEEPING PRINCIPLE OF THE
ROLAND CASE.  THE LEGISLATIVE HISTORY IS REPLETE WITH EVIDENCE THAT THE
TARGET OF THE AMENDMENT WAS ROLAND'S PROPOSITION THAT NO SALE TO A
BUSINESS PURCHASER COULD BE A RETAIL SALE, WHICH SENATOR HOLLAND
CONDEMNED BY COMPARING THE DIFFERENT STATUS IT GAVE TO THE SALE OF A
BATCH OF TOWELS TO A HOUSEWIFE AND THE SAME SALE TO A HOTELKEEPER.  95
CONG. REC. 12494.  (FN13) FURTHER, FOR EVERY SUGGESTION IN THE DEBATES
THAT CONGRESS INTENDED ALSO WHOLLY TO REVAMP THE EXEMPTION BY
SUBSTITUTING AN OVERRIDING INDUSTRY-USAGE TEST, THERE ARE STATEMENTS
THAT POINT IN THE OTHER DIRECTION.  THUS, SENATOR HOLLAND OBSERVED THAT
HIS AMENDMENT WOULD NOT UNDO THE COMMONLY HELD VIEW THAT QUANTITY SALES
AT DISCOUNT PRICES ARE GENERALLY NONRETAIL.  (FN14)  IT WAS SAID THAT
THE "RECOGNIZING" IS DONE BY THE ADMINISTRATOR AND THE COURTS AS WELL
AS THE MERCHANT, 95 CONG. REC. 12510 (REMARKS OF SENATOR HOLLAND), AND
THAT DUE WEIGHT MUST BE GIVEN TO THE "ACTUAL PRACTICE" IN THE INDUSTRY,
SENATE CONF. MAJORITY STATEMENT, 95 CONG. REC. 14877, AND THE "WELL
SETTLED HABITS OF BUSINESS," 95 CONG. REC. 12510 (REMARKS OF SENATOR
HOLLAND).  THE LISTS SET FORTH OF POTENTIALLY RETAIL BUSINESSES INCLUDE
ALMOST ONLY THOSE SELLING CONSUMER GOODS AND SERVICES.  SEE HOUSE CONG.
REP., P. 25 (QUOTED P. 203, INFRA); 95 CONG. REC. 11003-11004 (REMARKS
OF MR. LUCAS); 95 CONG. REC. 12502 (REMARKS OF SENATOR HOLLAND).  THERE
ARE DENIALS THAT THE INDUSTRIES' OWN INTERPRETATIONS OF A RETAIL SALE
WILL BE DECISIVE.  (FN15)    THE CONCLUSIVE CONSIDERATION FOR US IN
REJECTING THE INDUSTRY-USAGE TEST IS THAT IT WOULD COMPEL RESULTS
FLATLY INCONSISTENT WITH THOSE CONGRESS EXPLICITLY CONTEMPLATED AND
MIGHT INDEED WORK A MAJOR REVOLUTION IN THE ACT'S COVERAGE NOT
ACKNOWLEDGED IN ANY LEGISLATIVE STATEMENT OR REPORT BEFORE US.  THE
PRIME EXAMPLE OF THIS THREATENED INCONSISTENCY IS THE PROBLEM PRESENTED
TO THIS COURT IN 1959 BY MITCHELL V. KENTUCKY FINANCE CO., 359 U.S.
290, WHERE A BUSINESS MAKING SMALL PERSONAL LOANS AND PURCHASING
CONDITIONAL SALE CONTRACTS FROM RETAILERS CLAIMED TO BE AN EXEMPT
RETAIL OR SERVICE ESTABLISHMENT.  ALTHOUGH THE COMPANY INTRODUCED
PERSUASIVE EVIDENCE THAT THE INDUSTRY REGARDED ITS TRANSACTIONS AS
RETAIL, THE COURT DENIED THE EXEMPTION IN THE FACE OF THE LEGISLATIVE
HISTORY INDICATING A LIMITED PURPOSE FOR THE 1949 AMENDMENT AND
CONTAINING AN EXPRESS STATEMENT THAT "THE AMENDMENT DOES NOT EXEMPT
BANKS, INSURANCE COMPANIES, BUILDING AND LOAN ASSOCIATIONS, CREDIT
COMPANIES, NEWSPAPERS, TELEPHONE COMPANIES, GAS AND ELECTRIC UTILITY
COMPANIES, TELEGRAPH COMPANIES, ETC., BECAUSE THERE IS NO CONCEPT OF
RETAIL SELLING OR SERVICING IN THESE INDUSTRIES."  HOUSE CONF. REP.,
PP. 25-26.  SEE SENATE CONF. MAJORITY STATEMENT, 95 CONG. REC. 14877. 
IF WEIGHT IS TO BE GIVEN TO STATEMENTS ABOUT THE NONRETAIL STATUS OF
QUANTITY SALES AT DISCOUNTS, SEE N. 14, SUPRA, CONGRESSIONAL INTENT
WOULD BE SIMILARLY FRUSTRATED BY THE TRUCK TIRE INDUSTRY'S RETAIL
DESIGNATION OF ALL SALES NOT FOR RESALE NO MATTER HOW GREAT THE
QUANTITY AND DISCOUNT.  IN VIEW OF THE USE OF THE WORD RETAIL IN THE
TRUCK TIRE AND CREDIT INDUSTRIES, IT WOULD HARDLY BE SURPRISING TO FIND
THAT NEWSPAPER, TELEPHONE, OR GAS AND ELECTRIC COMPANIES LABEL THEIR
SALES TO CONSUMERS AS RETAIL.  YET THE LEGISLATIVE HISTORY IS SO
EXPLICITLY OPPOSED TO THE EXTENSION OF THE RETAIL EXEMPTION TO SUCH
BUSINESSES AS TO PROVIDE THE FINAL ARGUMENT AGAINST ADOPTING AN
INDUSTRY-USAGE TEST THAT COULD DICTATE THAT RESULT. 

SINCE WE REJECT THE INDUSTRY'S USAGE AS THE SINGLE TOUCHSTONE, THE
QUESTION ARISES WHAT MEANING IS TO BE GIVEN TO THE TERM RETAIL.  IN
APPROACHING THIS QUESTION WE AGREE WITH THE SECRETARY THAT IT IS
GENERALLY HELPFUL TO ASK FIRST WHETHER THE SALE OF A PARTICULAR TYPE OF
GOODS OR SERVICES CAN EVER QUALIFY AS RETAIL WHATEVER THE TERMS OF
SALE; IF AND ONLY IF THE ANSWER IS AFFIRMATIVE IS IT THEN NECESSARY TO
DETERMINE THE TERMS OR CIRCUMSTANCES THAT MAKE A SALE OF THOSE GOODS OR
SERVICES A RETAIL SALE. 

PLAINLY THE TYPICAL RETAIL TRANSACTION IS ONE INVOLVING GOODS OR
SERVICES THAT ARE FREQUENTLY ACQUIRED FOR FAMILY OR PERSONAL USE.  AS
EXAMPLES OF SALES THAT COULD QUALIFY AS RETAIL, THE HOUSE CONFERENCE
REPORT LISTS THOSE MADE "BY THE GROCERY STORE, THE HARDWARE STORE, THE
COAL DEALER, THE AUTOMOBILE DEALER SELLING PASSENGER CARS OR TRUCKS,
THE CLOTHING STORE, THE DRY GOODS STORE, THE DEPARTMENT STORE, THE
PAINT STORE, THE FURNITURE STORE, THE DRUG STORE, THE SHOE STORE, THE
STATIONER, THE LUMBER DEALER, ETC.  ...  "  HOUSE CONF. REP., P. 25
(SALE OF FARM MACHINERY IS ANOTHER EXAMPLE GIVEN).  SEE ALSO 95 CONG.
REC. 11003-11004 (REMARKS OF MR. LUCAS); 95 CONG. REC. 12502 (REMARKS
OF SENATOR HOLLAND).  OF COURSE CONGRESS' CONCEDED INTENT TO OVERRULE
THE ROLAND PRINCIPLE MEANS SALES OF SUCH GOODS OR SERVICES CAN BE
RETAIL "WHETHER MADE TO PRIVATE HOUSEHOLDERS OR TO BUSINESS USERS,"
HOUSE CONF. REP., P. 25, BUT THE GOODS AND SERVICES LISTED NEARLY ALL
SHARE THE COMMON CHARACTERISTIC THAT THEY ARE OFTEN PURCHASED BY
HOUSEHOLDERS.  THE LEGISLATIVE RECITAL OF TELEPHONE, GAS AND ELECTRIC,
AND CREDIT COMPANIES ALONG WITH A NUMBER OF OTHERS AS BUSINESSES
OUTSIDE THE EXEMPTION, SEE P. 202, SUPRA, DEMONSTRATES THAT NOT
EVERYTHING THE CONSUMER PURCHASES CAN BE A RETAIL SALE OF GOODS OR
SERVICES, BUT THE BREADTH OF THIS QUALIFICATION NEED NOT HERE BE
EXPLORED. 

WHAT IS IMPORTANT FOR THIS DECISION IS THAT CONGRESS ALSO INTENDED
THAT THE RETAIL EXEMPTION EXTEND IN SOME MEASURE BEYOND CONSUMER GOODS
AND SERVICES TO EMBRACE CERTAIN PRODUCTS ALMOST NEVER PURCHASED FOR
FAMILY OR NONCOMMERCIAL USE.  AN INDISPUTABLE EXAMPLE IS THE SALE OF
FARM IMPLEMENTS.  SEE HOUSE CONF. REP., P. 25.  ANOTHER INSTANCE IS
TRUCKS, AT LEAST OF SOME VARIETIES, WHOSE "RETAILABILITY" IS ASSUMED IN
THE LEGISLATIVE HISTORY, E.G., 95 CONG. REC. 12497 (REMARKS OF SENATOR
HOLLAND), AND CONFIRMED BY THE PRESENCE OF ANOTHER EXEMPTION IN THE ACT
THAT WOULD OTHERWISE BE DIFFICULT TO UNDERSTAND.  (FN16)  SEE ALSO 95
CONG. REC. 12495 (REMARKS OF SENATOR HOLLAND)(RETAILABILITY OF MODEST
OFFICE DESK).  WE CANNOT DRAW A PRECISE LINE BETWEEN SUCH ARTICLES AND
THOSE LIKE INDUSTRIAL MACHINERY WHICH CAN NEVER BE SOLD AT RETAIL, SEE
HOUSE CONF. REP., P. 26, BUT A FEW CHARACTERISTICS OF ITEMS LIKE SMALL
TRUCKS AND FARM IMPLEMENTS MAY OFFER SOME GUIDANCE: THEIR EMPLOYMENT IS
VERY WIDESPREAD AS IS THAT OF CONSUMER GOODS; THEY ARE OFTEN
DISTRIBUTED IN STORES OR SHOWROOMS AND BY MEANS NOT DISSIMILAR TO THOSE
USED FOR CONSUMER GOODS; AND PERHAPS IT CAN BE SAID THAT THEY ARE VERY
FREQUENTLY USED IN COMMERCIAL ACTIVITIES OF LIMITED SCOPE.  WHILE THE
LIST OF STRICTLY COMMERCIAL ITEMS WHOSE SALE CAN BE DEEMED RETAIL IS
PRESUMABLY VERY SMALL, THEIR EXISTENCE PRECLUDES USE OF THE
UNCOMPLICATED "CONSUMER GOODS" TEST PROPOSED BY THE ADMINISTRATOR IN
1949.  SEE PP. 197-198, SUPRA. 

WITHIN THE CATEGORY OF GOODS AND SERVICES THAT CAN BE SOLD AT RETAIL,
NATURALLY NOT EVERY SALE CAN BE SO CLASSIFIED.  THE EXEMPTION ITSELF
EXCLUDES ANY SALE FOR RESALE AND BEYOND THAT, REFERENCES IN THE
LEGISLATIVE HISTORY, N. 14, SUPRA, AND COMMON PARLANCE CERTAINLY
SUGGEST THAT THE TERM RETAIL BECOMES LESS APT AS THE QUANTITY AND THE
PRICE DISCOUNT INCREASE IN A PARTICULAR TRANSACTION.  AGAIN, WE DO NOT
BELIEVE THE WORD USAGE OF THE INDUSTRY MUST BE GIVEN CONCLUSIVE FORCE. 
THE LEGISLATIVE COMMENTS ON DISCOUNTING JUST CITED ARE TO THE CONTRARY;
AND THE STATUTE CANNOT EASILY BE READ TO MAKE USAGE CONTROL WHETHER A
PARTICULAR SALE IS RETAIL AFTER WE HAVE REJECTED THAT TEST IN DECIDING
WHETHER SALE OF A GIVEN ITEM CAN EVER BE RETAIL.  THE SECRETARY HAS IN
FACT QUITE PROPERLY LOOKED CAREFULLY AT USAGE AND PRACTICE IN EACH
INDUSTRY BEFORE TAKING A POSITION, 29 CFR SEC 779.323 (1965), BUT HE
CANNOT BE HAMSTRUNG BY THE TERMINOLOGY OF A PARTICULAR TRADE.  IN VIEW
OF THE DIVERSITY OF STRUCTURE AND MARKETING PRACTICES IN DIFFERENT
INDUSTRIES, FLEXIBILITY IS CERTAINLY APPROPRIATE, AND WE DO NOT HERE
FURTHER ATTEMPT TO ADDUCE GENERAL RULES.  WE DO NOTE THAT THE
CONSIDERABLE DISCRETION POSSESSED BY THE SECRETARY AS THE ONE
RESPONSIBLE FOR THE ACTUAL ADMINISTRATION OF THE ACT SHOULD NOT BE
UNDERSTRESSED.  BOUTELL V. WALLING, 327 U.S. 463, 471; SEE UNITED
STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 549. 

                   III. 

IN LIGHT OF THE PREMISES NOW ESTABLISHED, RESOLUTION OF THE TWO CASES
BEFORE US CAN BE ACCOMPLISHED READILY.  TURNING FIRST TO IDAHO SHEET
METAL WORKS, WE BELIEVE IT IS DISQUALIFIED AS A RETAIL ESTABLISHMENT BY
THE 83% OF ITS GROSS INCOME DERIVED FROM METAL WORK RELATING TO THE
POTATO PROCESSING EQUIPMENT.  THE COMPANY HAS STRESSED THE WIDE PUBLIC
IT SERVES, THE DISPLAY RACKS AND OTHER RETAIL FACILITIES IN ITS
BUILDING, THE IRREGULAR INTERVALS AT WHICH WORK ON THE POTATO EQUIPMENT
IS PERFORMED, AND THE COMPANY'S LINEAGE TRACING BACK TO THE "TIN SHOPS"
OF YESTERDAY.  ALL THESE FACTORS MAY BEAR UPON THE CLASSIFICATION OF
ITS OTHER SALES, AND IF THOSE WERE ITS SOLE BUSINESS OR THREE-QUARTERS
OF IT THE COMPANY MIGHT WELL DESERVE THE EXEMPTION.  BUT SEC 13(A)(2)
IS EXPLICIT IN ITS TREATMENT OF ESTABLISHMENTS WHOSE SALES ARE
VARIEGATED:  A BUSINESS IS CHARACTERIZED BY ITS SALES AND NO MORE THAN
25% OF THE DOLLAR VOLUME MAY DERIVE FROM SALES DESIGNATED NONRETAIL
WITHOUT LOSS OF THE EXEMPTION.  SEE N. 2, SUPRA.  IN THIS INSTANCE 83%
OF THE GROSS INCOME IS MADE BY SALE OR SERVICING OF THE POTATO
PROCESSING EQUIPMENT AND WE DO NOT BELIEVE THOSE TRANSACTIONS BEFORE US
CAN BE LABELED RETAIL WHATEVER THE PARTICULAR TERMS. 

THIS LAST CONCLUSION FOLLOWS NATURALLY FROM THE ADMITTED FACTS.  THE
PRETRIAL ORDER DESCRIBED THE POTATO EQUIPMENT FABRICATED AND MAINTAINED
BY IDAHO SHEET AS VATS, STORAGE TANKS, HOODS, ELEVATOR BUCKETS, AND
CHUTES.  HOODS WERE DESCRIBED AT TRIAL BY ONE PURCHASER AS BEING "FIVE
FEET SQUARE ON THE BOTTOM AND ABOUT FOUR FEET HIGH WHERE THEY GO TO THE
VENT STACKS."  HE ALSO TESTIFIED THAT THE TANKS HELD AS MUCH AS "5,000
POUNDS OF PEELED POTATOES," AND THAT CHUTES WERE ABOUT 12 FEET LONG. 
IF THIS TESTIMONY IS NOT FAIRLY REPRESENTATIVE OF THE NATURE OF THE
EQUIPMENT UNDER SCRUTINY, THERE IS NO INDICATION OF THAT FROM IDAHO
SHEET, UPON WHICH LIES THE BURDEN OF ESTABLISHING THE FACTS REQUISITE
TO AN EXEMPTION.  ARNOLD V. BEN KANOWSKY, INC., 361 U.S. 388.  THE TYPE
OF EQUIPMENT DESCRIBED PLAINLY APPEARS TO HAVE NO PRIVATE OR
NONCOMMERCIAL UTILITY.  NOR DOES IT BEAR MUCH RESEMBLANCE TO THOSE
STRICTLY COMMERCIAL ARTICLES EARLIER NAMED THAT MAY BE SOLD AT RETAIL. 
UNLIKE SMALL TRUCKS AND FARM EQUIPMENT, THE MARKET FOR THESE GOODS IS
HIGHLY LIMITED, AND FAR FROM BEING STOCK ITEMS PURCHASED OFF THE SHELF,
THESE ARTICLES WERE GENERALLY FABRICATED TO MEET INDIVIDUAL
SPECIFICATIONS.  (FN17)  IN THE 83% OF ITS BUSINESS RELATING TO THE
POTATO EQUIPMENT, IDAHO SHEET SEEMS HARDLY DISTINGUISHABLE FROM "AN
ESTABLISHMENT ENGAGED IN THE SALE AND SERVICING OF MANUFACTURING
MACHINERY AND MANUFACTURING EQUIPMENT USED IN THE PRODUCTION OF GOODS,"
WHICH THE HOUSE CONFERENCE REPORT FLATLY STATED COULD NOT BE EXEMPT. 
HOUSE CONF. REP., P. 26.  SINCE IN OUR VIEW THIS POTATO EQUIPMENT
CANNOT BE THE SUBJECT OF A RETAIL SALE, WE HAVE NO OCCASION TO CONSIDER
THE COMPANY'S CLAIM THAT THE PRICING AND QUANTITY OF ITS PARTICULAR
SALES OF THE EQUIPMENT CONFORM TO RETAIL STANDARDS. 

THE SECOND CASE, INVOLVING THE STEEPLETON TIRE BUSINESS, IS IN SOME
RESPECTS MORE INTRICATE.  THE GOVERNMENT HAS ALLEGED, AND STEEPLETON
DOES NOT DENY, THAT BETTER THAN HALF THE COMPANY'S DOLLAR VOLUME
DERIVES FROM SALES TO COMPANIES OPERATING FLEETS OF COMMERCIAL VEHICLES
AND OTHER HEAVY INDUSTRIAL MACHINERY SUCH AS EARTH-MOVING EQUIPMENT. 
THE GOVERNMENT'S FIRST GROUND FOR WITHHOLDING THE EXEMPTION IS THAT
TIRE TRANSACTIONS RELATING TO LARGE TRUCKS AND INDUSTRIAL VEHICLES ARE
INTRINSICALLY NONRETAIL WHATEVER THE TERMS.  IT ANALOGIZES THESE
VEHICLES TO INDUSTRIAL MACHINERY AND THEN WOULD TREAT THE TIRES JUST AS
THE TRUCKS.  AND IT STRESSES THE TIES BETWEEN THESE VEHICLES AND
INTERSTATE COMMERCE. 

ADMITTING THAT THE ARGUMENT HAS FORCE, WE DO NOT ACCEPT IT.  AMONG
THE FEW STRICTLY COMMERCIAL ARTICLES THAT CONGRESS PRETTY PLAINLY
VIEWED AS RETAILABLE WERE TRUCKS IN AT LEAST SOME VARIETIES, AS WE HAVE
ALREADY SHOWN.  NO REASON APPEARS WHY THE SALE OF TIRES FOR THOSE
TRUCKS SHOULD BE DISTINGUISHED AND NOT ALLOWED TO QUALIFY AS RETAILABLE
ITEMS.  THE STRENGTH OF THE GOVERNMENT'S POSITION LIES IN ITS READINESS
TO SEPARATE BIG TRUCKS AND TIRES FROM LITTLE TRUCKS AND TIRES.  THE
SECRETARY, HOWEVER, SEEMINGLY HAS CHOSEN NOT TO CLASSIFY TRUCK TIRES ON
THIS BASIS BUT INSTEAD TREATS ALL TRUCK TIRES AS CAPABLE OF BEING SOLD
AT RETAIL.  (FN18)  A DECISION OF THIS KIND, NO DOUBT TURNING IN PART
ON PROBLEMS OF ADMINISTRATION AND FACETS OF INDUSTRY PRACTICE, CLEARLY
IMPLICATES THE SECRETARY'S DISCRETION, AND WE SEE NO CAUSE TO DISTURB
ITS EXERCISE IN THIS CASE. 

STEEPLETON IS, NEVERTHELESS, DEPRIVED OF THE RETAIL ESTABLISHMENT
EXEMPTION BECAUSE - AS THE GOVERNMENT ALTERNATIVELY CONTENDED - IT HAS
FAILED TO SHOW THAT THE TIRE DEALINGS IN QUESTION WERE MADE ON TERMS
AND IN CIRCUMSTANCES THAT QUALIFY THEM AS RETAIL WITHIN THE SECRETARY'S
GUIDELINES.  THE GUIDELINES CLASS AS NONRETAIL ALL SALES TO FLEETS OF
FIVE OR MORE VEHICLES AT "WHOLESALE PRICES," A WHOLESALE PRICE BEING
DEFINED AS THAT CHARGED ON SALES FOR RESALE OR ON SALES TO 10-VEHICLE
FLEETS.  SEE N. 18, SUPRA.  THESE GUIDELINES, REPORTEDLY DESIGNED AFTER
INQUIRY INTO INDUSTRY PRACTICES, ARE QUITE EVIDENTLY AIMED AT EXCLUDING
FROM THE RETAIL CATEGORY SALES GENERALLY MADE AT SIGNIFICANT DISCOUNTS
AND IN QUANTITY.  GIVEN THE COMMON CONCEPTION OF THE TERM RETAIL AND
REFERENCES IN THE LEGISLATIVE HISTORY TO DISCOUNT SALES, SEE N. 14,
SUPRA, WE SEE NO REASON NOT TO SUSTAIN THESE GUIDELINES; INDEED, THE
COMPANY DOES NOT EVEN APPEAR TO DISCUSS THEM, SAVE AS IS IMPLICIT IN
ITS CLAIMS THAT THE SECRETARY'S POSITION HERE DOES NOT CORRESPOND TO
WORD USAGE IN THE INDUSTRY. 

IN CONCLUDING THAT STEEPLETON HAS NOT PROVED ITSELF EXEMPT, A CERTAIN
INDEFINITENESS IN THE RECORD SHOULD BE NOTED.  THE GOVERNMENT SHOWED AT
TRIAL THAT MANY OF THE SALES WERE TO LARGE FLEETS, THAT A NUMBER OF
PURCHASERS SAID THEY RECEIVED DISCOUNTS, THAT THE PRACTICE IN THE
INDUSTRY WAS TO GRANT SIGNIFICANT DISCOUNTS FOR FLEET SALES, THAT SOME
SALES WERE FOR RESALE OR PURSUANT TO BIDS TO PUBLIC AGENCIES, AND
POINTED OUT OTHER FACTS DIRECTED AT SHOWING NONEXEMPTION UNDER THE
GUIDELINES.  DESPITE THIS EVIDENCE, THERE IS UNCLARITY AS TO THE
PRECISE PERCENTAGES OF DOLLAR VOLUME ATTRIBUTABLE TO THE VARIOUS SALES
THAT THE GUIDELINES LABEL NONRETAIL.  HOWEVER, THE BURDEN OF PROOF
RESPECTING EXEMPTIONS IS UPON THE COMPANY, AS EARLIER INDICATED, AND
SINCE WE UPHOLD THE SECRETARY'S TEST, THAT BURDEN HAS NOT BEEN MET.  IF
STEEPLETON HAD ALLEGED ON APPEAL THAT IT COULD MEET THE SECRETARY'S
STANDARDS IF THEY PREVAILED, EVEN THEN WE WOULD HESITATE TO ORDER A
REMAND SINCE THE SECRETARY'S POSITION HAS BEEN KNOWN FROM THE OUTSET. 
IN ALL EVENTS, STEEPLETON HAS NOT EVEN CLAIMED IN THIS COURT THAT THE
SECRETARY'S STANDARDS COULD BE MET.    THE JUDGMENT OF THE COURT OF
APPEALS IN NO. 30 IS AFFIRMED; THE JUDGMENT OF THE COURT OF APPEALS IN
NO. 31 IS REVERSED.  IT IS SO ORDERED. 

FN1  52 STAT. 1060, AS AMENDED, 29 U.S.C. SECS 201-219 (1964 ED.). 
WAGES AND OVERTIME PAY.  THE COMMERCE COVERAGE OF THE ACT, THROUGH A
SPECIAL DEFINITION OF "PRODUCTION," IS DRAWN IN GENEROUS TERMS.  SEE
SEC 3(J), CODIFIED AS SEC 203(J). 

FN2  52 STAT. 1067, AS AMENDED, 29 U.S.C. SEC 213(A)(2) (1964 ED.). 
THE SECTION PROVIDES THAT THE MINIMUM WAGE AND OVERTIME PAY PROVISIONS
OF THE ACT SHALL NOT APPLY TO: 

"(2)  ANY EMPLOYEE EMPLOYED BY ANY RETAIL OR SERVICE ESTABLISHMENT,
MORE THAN 50 PER CENTUM OF WHICH ESTABLISHMENT'S ANNUAL DOLLAR VOLUME
OF SALES OF GOODS OR SERVICES IS MADE WITHIN THE STATE IN WHICH THE
ESTABLISHMENT IS LOCATED, IF SUCH ESTABLISHMENT: 

"  ...  MEETS ONE OF FOUR TESTS, DESIGNATED '(I)-(IV)' AND FRAMED
WITH REFERENCE TO ANOTHER SECTION OF THE ACT. 

"A 'RETAIL OR SERVICE ESTABLISHMENT' SHALL MEAN AN ESTABLISHMENT 75
PER CENTUM OF WHOSE ANNUAL DOLLAR VOLUME OF SALES OF GOODS OR SERVICES
(OR OF BOTH) IS NOT FOR RESALE AND IS RECOGNIZED AS RETAIL SALES OR
SERVICES IN THE PARTICULAR INDUSTRY." 

FN3 THIS REQUIREMENT HAS BEEN MET BY THE COMPANIES IN THIS CASE. 
SEC 213(A)(4) (1964 ED.), PROVIDES THAT AN ESTABLISHMENT THAT MAKES OR
PROCESSES THE GOODS IT SELLS MAY QUALIFY AS EXEMPT IF IT MEETS THE
TESTS OF SEC 13(A)(2) AND "IS RECOGNIZED AS A RETAIL ESTABLISHMENT IN
THE PARTICULAR INDUSTRY" AND MAKES MORE THAN 85% OF ITS ANNUAL DOLLAR
VOLUME OF SALES OF SUCH GOODS WITHIN THE STATE.  SO FAR AS THE
COMPANIES IN THIS CASE MAY BE DEEMED TO MAKE OR PROCESS THE GOODS THEY
SELL, THE GOVERNMENT IS APPARENTLY SATISFIED THAT THE ADDED
REQUIREMENTS OF SEC 13(A)(4) HAVE BEEN MET OR AT LEAST IS UNWILLING TO
RELY UPON THEM. 

FN4  THESE FOUR TESTS WERE ADDED TO SEC 13(A)(2) IN 1961 BY 75 STAT.
71.  THE GOVERNMENT HAS NOT SUGGESTED THAT THIS AMENDMENT WOULD
DISQUALIFY EITHER OF THE COMPANIES IN THE PRESENT CASE. 

FN5  THE 1938 VERSION READ:  "(A) THE PROVISIONS OF SECTIONS 6 AND 7
SHALL NOT APPLY WITH RESPECT TO  ...  (2) ANY EMPLOYEE ENGAGED IN ANY
RETAIL OR SERVICE ESTABLISHMENT THE GREATER PART OF WHOSE SELLING OR
SERVICING IS IN INTRASTATE COMMERCE."  52 STAT. 1067. 

FN6  THIS BULLETIN, DESIGNATED NO. 6, APPEARS ALONG WITH OTHER
OFFICIAL STATEMENTS IN VARIOUS EDITIONS OF THE BNA WAGE AND HOUR MANUAL
(HEREAFTER CITED AS WH MANUAL), E.G., 1942 EDITION.  THE SECRETARY'S
PRESENT VIEWS ARE STATED IN 29 CFR SECS 779-779.515 (1965). 

FN7  SEE MARTINO V. MICHIGAN WINDOW CLEANING CO., 327 U.S. 173;
BOUTELL V. WALLING, 327 U.S. 463.  SEE ALSO MCCOMB V. FACTORY STORES
CO., 81 F. SUPP. 403; MCCOMB V. DIEBERT, 16 CCH LABOR CAS. PARA
64,982. 

FN8  THE BILL REPORTED OUT OF COMMITTEE WAS H.R. 3190, 81ST CONG.,
1ST SESS., ACCOMPANIED BY H.R. REP. NO. 267.  THE FIRST SUBSTITUTE WAS
H.R. 5856, BROUGHT TO DEBATE BY H. RES.  183.  THE FINAL, SUCCESSFUL
VERSION RETAINED THE NUMBER H.R. 5856 BUT WAS DRAWN FROM H.R. 5894. 
SEE GENERALLY 6 LAB.  REL. REP., P. 90:459 (1961). 

FN9  THE ONLY DIFFERENCE BETWEEN THE 1949 VERSION OF SEC 13(A)(2) AND
CURRENT LAW DERIVES FROM THE 1961 AMENDMENT TO THE SECTION, WHICH IS
NOT RELEVANT IN THIS CASE.  SEE N. 4, SUPRA, AND ACCOMPANYING TEXT. 

FN10  THE BILL REPORTED OUT OF COMMITTEE WAS S. 653, 81ST CONG., 1ST
SESS., ACCOMPANIED BY S. REP. NO. 640.  THE AMENDMENT WAS OFFERED AT 95
CONG. REC. 12491 AND PASSED AT 95 CONG. REC. 12520. 

FN11  THE PRINCIPAL DEBATES APPEAR AT VARIOUS POINTS IN 95 CONG. REC.
11002-11203 (HOUSE), 12490-12520 (SENATE).  NO INITIAL COMMITTEE
REPORTS DISCUSS THE ULTIMATELY SUCCESSFUL VERSION OF SEC 13(A)(2) BUT A
PERTINENT STATEMENT OF THE HOUSE MEMBERS OF THE CONFERENCE COMMITTEE
APPEARS IN H.R. CONF. REP. NO. 1453, 81ST CONG., 1ST SESS., PP. 24-26
(HEREAFTER CITED AS HOUSE CONF. REP.).  THERE IS ALSO A RELEVANT BUT
LESS AUTHORITATIVE STATEMENT OF THE MAJORITY OF SENATE CONFEREES
(HEREAFTER CITED AS SENATE CONF. MAJORITY STATEMENT) APPEARING AT 95
CONG. REC. 14877. 

FN12  OTHER COMMENTS IN SOME MEASURE FAVORING THE MOST LITERAL
CONSTRUCTION ARE THOSE ASSUMING THAT EACH INDUSTRY HAS AN ESTABLISHED
UNDERSTANDING OF WHAT IS A RETAIL SALE, E.G., 95 CONG. REC. 12502
(REMARKS OF SENATOR HOLLAND), 12516 (REMARKS OF SENATOR TAFT); THOSE
FEW WHICH SEEM TO EQUATE "RECOGNIZED AS RETAIL" WITH "REGARDED AS
RETAIL," 95 CONG.  REC. 11003 (REMARKS OF MR. LUCAS, SPONSOR OF THE
PREVAILING VERSION IN THE HOUSE), 12502 (REMARKS OF SENATOR HOLLAND);
AND ONE OR TWO SUGGESTING THAT A DISCOUNT SALE MAY QUALIFY AS RETAIL,
95 CONG. REC. 11003 (REMARKS OF MR. LUCAS), 11199 (REMARKS OF MR.
MCCONNELL). 

FN13  SEE HOUSE CONF. REP., P. 24 ("THIS CLARIFICATION (THE AMENDED
SEC 13(A)(2)) IS NEEDED IN ORDER TO OBVIATE THE SWEEPING RULING OF THE
ADMINISTRATOR AND THE COURTS THAT NO SALE OF GOODS OR SERVICES FOR
BUSINESS USE IS RETAIL.  SEE ROLAND ELECTRICAL CO. V. WALLING  ...
."); 95 CONG. REC. 11003 (REMARKS OF MR. LUCAS); 95 CONG. REC. 11203
(REMARKS OF MR. CELLER). 

FN14  "OF COURSE IF  ...  A SALE IS 'MADE IN SUCH QUANTITY THAT
DISCOUNTS ARE ALLOWED' IT COMES IN THE CATEGORY OF WHOLESALE SALES." 
95 CONG. REC. 12501.  PERHAPS MORE AMBIGUOUSLY, SENATOR HOLLAND ALSO
STATED:  "IF SALES WERE MADE IN SUFFICIENT QUANTITY SO THERE WOULD BE A
DISCOUNT AND THEY WOULD BE REGARDED NOT AS RETAIL SALES, BUT AS
WHOLESALE SALES, THEY WOULD LOSE THEIR EXEMPTION."  95 CONG. REC.
12497.  SEE ALSO 95 CONG. REC.  12505.  BUT CF. 95 CONG. REC. 11003
(REMARKS OF MR. LUCAS). 

FN15  "MR. DOUGLAS.  I UNDERSTAND THAT THE INTERPRETATION WHICH WOULD
BE MADE WOULD BE THAT GIVEN TO 'RETAIL SALE' BY A TRADE ASSOCIATION. 

"MR. HOLLAND.  THAT IS ONE CRITERION, OF COURSE; BUT I DO NOT BELIEVE
THE SENATOR FROM ILLINOIS, AND CERTAINLY NOT THE SENATOR FROM FLORIDA,
WOULD WISH TO DELEGATE FULL AUTHORITY IN THE MATTER TO A TRADE
ASSOCIATION OR ANY OTHER INTERESTED GROUP."  95 CONG. REC. 12501. 

SEE ALSO 95 CONG. REC. 12510 (REMARKS OF SENATOR HOLLAND). 

FN16  SECTION 13(A)(19), ADDED IN 1961 BY 75 STAT. 73, 29 U.S.C. SEC
213(A)(19) (1964 ED.), EXEMPTS FROM THE MINIMUM WAGE AND OVERTIME PAY
REQUIREMENTS "ANY EMPLOYEE OF A RETAIL OR SERVICE ESTABLISHMENT WHICH
IS PRIMARILY ENGAGED IN THE BUSINESS OF SELLING AUTOMOBILES, TRUCKS, OR
FARM IMPLEMENTS" REGARDLESS OF WHETHER THE ESTABLISHMENT MEETS THE
FURTHER TESTS OF SEC 13(A)(2), NOTABLY THOSE ADDED IN 1961, SEE N. 4,
SUPRA, AND ACCOMPANYING TEXT.  QUITE EVIDENTLY THIS SECTION
CONTEMPLATES THAT A BUSINESS PRIMARILY SELLING TRUCKS MAY BE A RETAIL
ESTABLISHMENT. 

FN17  THE COMPANY RELIES UPON WIRTZ V. MODERN TRASHMOVAL, INC., 323
F.2D 451, IN WHICH THE FOURTH CIRCUIT AS AN ALTERNATIVE GROUND OF
DECISION HELD A TRASH COLLECTION BUSINESS TO BE A RETAIL OR SERVICE
ESTABLISHMENT UNDER THE ACT.  WE NEED GO NO FURTHER THAN TO SAY THE
CASE IS QUITE DISTINGUISHABLE; TRASH REMOVAL IS NOT ONLY A WIDESPREAD
NEED IN THE COMMERCIAL WORLD BUT IS REQUIRED BY PRIVATE FAMILIES. 

FN18  29 CFR SEC 779.373 (1965) RELEVANTLY PROVIDES THAT FOR PURPOSES
OF SEC 13(A)(2) "ALL SALES OF TIRES, TUBES, ACCESSORIES AND TIRE REPAIR
SERVICES, INCLUDING RETREADING AND RECAPPING" ARE CLASSIFIED AS RETAIL,
WITH A SERIES OF EXCEPTIONS INCLUDING: 

"(D)  SALES TO FLEET ACCOUNTS AT WHOLESALE PRICES:  ...  A 'FLEET
ACCOUNT' IS A CUSTOMER OPERATING FIVE OR MORE AUTOMOBILES OR TRUCKS FOR
BUSINESS PURPOSES.  WHOLESALE PRICES  ...  ARE PRICES EQUIVALENT TO, OR
LESS THAN, THOSE TYPICALLY CHARGED ON SALES FOR RESALE  ...  . IF THE
ESTABLISHMENT MAKES NO SALES OF TRUCK TIRES FOR RESALE, THE WHOLESALE
PRICE  ...  IS THE PRICE CHARGED  ...  ON SALES OF TRUCK TIRES TO FLEET
ACCOUNTS OPERATING 10 OR MORE COMMERCIAL VEHICLES, OR IF THE
ESTABLISHMENT MAKES NO SUCH SALES  ...  IT IS THE PRICE TYPICALLY
CHARGED IN THE AREA ON SUCH SALES  ...  ." 
..END :







BAXSTROM V. HEROLD 383 U.S. 107 


NO. 219.  ARGUED DECEMBER 9, 1965.  - DECIDED FEBRUARY 23, 1966.  -
JUDGMENT OF THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, THIRD
JUDICIAL DEPARTMENT, 21 APP. DIV. 2D 754, REVERSED AND REMANDED TO THAT
COURT. 


PETITIONER, WHILE A PRISONER, WAS CERTIFIED AS INSANE BY A PRISON
PHYSICIAN AND TRANSFERRED TO DANNEMORA STATE HOSPITAL, AN INSTITUTION
UNDER THE JURISDICTION OF THE NEW YORK DEPARTMENT OF CORRECTION AND
USED FOR PRISONERS DECLARED MENTALLY ILL WHILE SERVING SENTENCE. 
DANNEMORA'S DIRECTOR FILED A PETITION IN THE SURROGATE'S COURT STATING
THAT PETITIONER'S SENTENCE WAS EXPIRING AND REQUESTING THAT HE BE
CIVILLY COMMITTED UNDER SEC. 384 OF THE N.Y. CORRECTION LAW.  AT THE
PROCEEDING THE STATE SUBMITTED MEDICAL EVIDENCE THAT PETITIONER WAS
STILL MENTALLY ILL AND IN NEED OF HOSPITAL CARE.  THE SURROGATE STATED
THAT HE HAD NO OBJECTION TO PETITIONER'S TRANSFER TO A CIVIL HOSPITAL
UNDER THE JURISDICTION OF THE DEPARTMENT OF MENTAL HYGIENE, BUT THAT
UNDER SEC. 384 THAT DECISION WAS UP TO THE LATTER DEPARTMENT.  THAT
DEPARTMENT HAD DETERMINED EX PARTE THAT PETITIONER WAS NOT SUITABLE FOR
CARE IN A CIVIL HOSPITAL.  WHEN PETITIONER'S SENTENCE EXPIRED HIS
CUSTODY SHIFTED TO THE DEPARTMENT OF MENTAL HYGIENE BUT HE HAS SINCE
REMAINED AT DANNEMORA.  WRITS OF HABEAS CORPUS IN STATE COURTS WERE
DISMISSED AND PETITIONER'S REQUEST THAT HE BE TRANSFERRED TO A CIVIL
HOSPITAL WAS DENIED AS BEYOND THE COURT'S POWER.  HELD:  PETITIONER WAS
DENIED EQUAL PROTECTION OF THE LAWS BY THE STATUTORY PROCEDURE WHEREBY
A PERSON MAY BE CIVILLY COMMITTED AT THE EXPIRATION OF A PRISON
SENTENCE WITHOUT THE JURY REVIEW AVAILABLE TO ALL OTHERS CIVILLY
COMMITTED IN NEW YORK, AND BY HIS COMMITMENT TO AN INSTITUTION
MAINTAINED BY THE DEPARTMENT OF CORRECTION BEYOND THE EXPIRATION OF HIS
PRISON TERM WITHOUT THE JUDICIAL DETERMINATION THAT HE IS DANGEROUSLY
MENTALLY ILL SUCH AS THAT AFFORDED TO ALL THOSE SO COMMITTED EXCEPT
THOSE NEARING THE END OF A PENAL SENTENCE.  PP. 110-115. 

BAXSTROM V. HEROLD, STATE HOSPITAL DIRECTOR. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO CONSIDER THE CONSTITUTIONAL
VALIDITY OF THE STATUTORY PROCEDURE UNDER WHICH PETITIONER WAS
COMMITTED TO A MENTAL INSTITUTION AT THE EXPIRATION OF HIS CRIMINAL
SENTENCE IN A STATE PRISON. 

PETITIONER, JOHNNIE K. BAXSTROM, WAS CONVICTED OF SECOND DEGREE
ASSAULT IN APRIL 1959 AND WAS SENTENCED TO A TERM OF TWO AND ONE-HALF
TO THREE YEARS IN A NEW YORK PRISON.  ON JUNE 1, 1961, HE WAS CERTIFIED
AS INSANE BY A PRISON PHYSICIAN.  HE WAS THEN TRANSFERRED FROM PRISON
TO DANNEMORA STATE HOSPITAL, AN INSTITUTION UNDER THE JURISDICTION AND
CONTROL OF THE NEW YORK DEPARTMENT OF CORRECTION AND USED FOR THE
PURPOSE OF CONFINING AND CARING FOR MALE PRISONERS DECLARED MENTALLY
ILL WHILE SERVING A CRIMINAL SENTENCE.  IN NOVEMBER 1961, THE DIRECTOR
OF DANNEMORA FILED A PETITION IN THE SURROGATE'S COURT OF CLINTON
COUNTY STATING THAT BAXSTROM'S PENAL SENTENCE WAS ABOUT TO TERMINATE
AND REQUESTING THAT HE BE CIVILLY COMMITTED PURSUANT TO SEC. 384 OF THE
NEW YORK CORRECTION LAW. 

ON DECEMBER 6, 1961, A PROCEEDING WAS HELD IN THE SURROGATE'S
CHAMBERS.  MEDICAL CERTIFICATES WERE SUBMITTED BY THE STATE WHICH
STATED THAT, IN THE OPINION OF TWO OF ITS EXAMINING PHYSICIANS,
BAXSTROM WAS STILL MENTALLY ILL AND IN NEED OF HOSPITAL AND
INSTITUTIONAL CARE.  RESPONDENT, THEN ASSISTANT DIRECTOR AT DANNEMORA,
TESTIFIED THAT IN HIS OPINION BAXSTROM WAS STILL MENTALLY ILL.
BAXSTROM, APPEARING ALONE, WAS ACCORDED A BRIEF OPPORTUNITY TO ASK
QUESTIONS.  (FN1)  RESPONDENT AND THE SURROGATE BOTH STATED THAT THEY
HAD NO OBJECTION TO HIS BEING TRANSFERRED FROM DANNEMORA TO A CIVIL
HOSPITAL UNDER THE JURISDICTION OF THE DEPARTMENT OF MENTAL HYGIENE. 
BUT THE SURROGATE POINTED OUT THAT HE HAD NO JURISDICTION TO DETERMINE
THAT QUESTION - THAT UNDER SEC. 384 THE DECISION WAS ENTIRELY UP TO THE
DEPARTMENT OF MENTAL HYGIENE.  THE SURROGATE THEN SIGNED A CERTIFICATE
WHICH INDICATED HE WAS SATISFIED THAT BAXSTROM "MAY REQUIRE MENTAL CARE
AND TREATMENT" IN AN INSTITUTION FOR THE MENTALLY ILL.  THE DEPARTMENT
OF MENTAL HYGIENE HAD ALREADY DETERMINED EX PARTE THAT BAXSTROM WAS NOT
SUITABLE FOR CARE IN A CIVIL HOSPITAL.  THUS, ON DECEMBER 18, 1961, THE
DATE UPON WHICH BAXSTROM'S PENAL SENTENCE EXPIRED, CUSTODY OVER HIM
SHIFTED FROM THE DEPARTMENT OF CORRECTION TO THE DEPARTMENT OF MENTAL
HYGIENE, BUT HE WAS RETAINED AT DANNEMORA AND HAS REMAINED THERE TO
THIS DATE. 

THEREAFTER, BAXSTROM SOUGHT A WRIT OF HABEAS CORPUS IN A STATE
COURT.  AN EXAMINATION BY AN INDEPENDENT PSYCHIATRIST WAS ORDERED AND A
HEARING WAS HELD AT WHICH THE EXAMINING PSYCHIATRIST TESTIFIED THAT, IN
HIS OPINION, BAXSTROM WAS STILL MENTALLY ILL.  THE WRIT WAS DISMISSED. 
IN 1963, BAXSTROM APPLIED AGAIN FOR A WRIT OF HABEAS CORPUS, ALLEGING
THAT HIS CONSTITUTIONAL RIGHTS HAD BEEN VIOLATED AND THAT HE WAS THEN
SANE, OR IF INSANE, HE SHOULD BE TRANSFERRED TO A CIVIL MENTAL
HOSPITAL.  DUT TO HIS INDIGENCE AND HIS INCARCERATION IN DANNEMORA,
BAXSTROM COULD NOT PRODUCE PSYCHIATRIC TESTIMONY TO DISPROVE THE
TESTIMONY ADDUCED AT THE PRIOR HEARING.  THE WRIT WAS THEREFORE
DISMISSED.  BAXSTROM'S ALTERNATIVE REQUEST FOR TRANSFER TO A CIVIL
MENTAL HOSPITAL WAS AGAIN DENIED AS BEING BEYOND THE POWER OF THE COURT
DESPITE A STATEMENT BY THE STATE'S ATTORNEY THAT HE WISHED THAT
BAXSTROM WOULD BE TRANSFERRED TO A CIVIL MENTAL HOSPITAL.  ON APPEAL TO
THE APPELLATE DIVISION, THIRD DEPARTMENT, THE DISMISSAL OF THE WRIT WAS
AFFIRMED WITHOUT OPINION.  21 APP. DIV. 2D 754.  A MOTION FOR LEAVE TO
APPEAL TO THE COURT OF APPEALS WAS DENIED.  14 N.Y.2D 490.  WE GRANTED
CERTIORARI.  381 U.S. 949. 

WE HOLD THAT PETITIONER WAS DENIED EQUAL PROTECTION OF THE LAWS BY
THE STATUTORY PROCEDURE UNDER WHICH A PERSON MAY BE CIVILLY COMMITTED
AT THE EXPIRATION OF HIS PENAL SENTENCE WITHOUT THE JURY REVIEW
AVAILABLE TO ALL OTHER PERSONS CIVILLY COMMITTED IN NEW YORK. 
PETITIONER WAS FURTHER DENIED EQUAL PROTECTION OF THE LAWS BY HIS CIVIL
COMMITMENT TO AN INSTITUTION MAINTAINED BY THE DEPARTMENT OF CORRECTION
BEYOND THE EXPIRATION OF HIS PRISON TERM WITHOUT A JUDICIAL
DETERMINATION THAT HE IS DANGEROUSLY MENTALLY ILL SUCH AS THAT AFFORDED
TO ALL SO COMMITTED EXCEPT THOSE, LIKE BAXSTROM, NEARING THE EXPIRATION
OF A PENAL SENTENCE. 

FOR CIVIL COMMITMENT UPON THE EXPIRATION OF THE PRISON TERM OF A
MENTALLY ILL PERSON CONFINED IN DANNEMORA.  (FN2)  SIMILAR PROCEDURES
ARE PRESCRIBED FOR CIVIL COMMITTMENT OF ALL OTHER ALLEGEDLY MENTALLY
ILL PERSONS.  N.Y. MENTAL HYGIENE LAW SECS. 70, 72.  ALL PERSONS
CIVILLY COMMITTED, HOWEVER, OTHER THAN THOSE COMMITTED AT THE
EXPIRATION OF A PENAL TERM, ARE EXPRESSLY GRANTED THE RIGHT TO DE NOVO
REVIEW BY JURY TRIAL OF THE QUESTION OF THEIR SANITY UNDER SEC. 74 OF
THE MENTAL HYGIENE LAW.  UNDER THIS PROCEDURE ANY PERSON DISSATISFIED
WITH AN ORDER CERTIFYING HIM AS MENTALLY ILL MAY DEMAND FULL REVIEW BY
A JURY OF THE PRIOR DETERMINATION AS TO HIS COMPETENCY.  IF THE JURY
RETURNS A VERDICT THAT THE PERSON IS SANE, HE MUST BE IMMEDIATELY
DISCHARGED.  IT FOLLOWS THAT THE STATE, HAVING MADE THIS SUBSTANTIAL
REVIEW PROCEEDING GENERALLY AVAILABLE ON THIS ISSUE, MAY NOT,
CONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, ARBITRARILY WITHHOLD IT FROM SOME. 

THE DIRECTOR CONTENDS THAT THE STATE HAS CREATED A REASONABLE
CLASSIFICATION DIFFERENTIATING THE CIVILLY INSANE FROM THE "CRIMINALLY
INSANE," WHICH HE DEFINES AS THOSE WITH DANGEROUS OR CRIMINAL
PROPENSITIES.  EQUAL PROTECTION DOES NOT REQUIRE THAT ALL PERSONS BE
DEALT WITH IDENTICALLY, BUT IT DOES REQUIRE THAT A DISTINCTION MADE
HAVE SOME RELEVANCE TO THE PURPOSE FOR WHICH THE CLASSIFICATION IS
MADE.  WALTERS V. CITY OF ST. LOUIS, 347 U.S. 231, 237.  CLASSIFICATION
OF MENTALLY ILL PERSONS ARE EITHER INSANE OR DANGEROUSLY INSANE OF
COURSE MAY BE A REASONABLE DISTINCTION FOR PURPOSES OF DETERMINING THE
TYPE OF CUSTODIAL OR MEDICAL CARE TO BE GIVEN, BUT IT HAS NO RELEVANCE
WHATEVER IN THE CONTEXT OF THE OPPORTUNITY TO SHOW WHETHER A PERSON IS
MENTALLY ILL AT ALL.  FOR PURPOSES OF GRANTING JUDICIAL REVIEW BEFORE A
JURY OF THE QUESTION WHETHER A PERSON IS MENTALLY ILL AND IN NEED OF
INSTITUTIONALIZATION, THERE IS NO CONCEIVABLE BASIS FOR DISTINGUISHING
THE COMMITMENT OF A PERSON WHO IS NEARING THE END OF A PENAL TERM FROM
ALL OTHER CIVIL COMMITMENTS. 

THE STATUTORY PROCEDURE PROVIDED IN SEC. 384 OF THE NEW YORK
CORRECTION LAW DENIED BAXSTROM THE EQUAL PROTECTION OF THE LAWS IN
ANOTHER RESPECT AS WELL.  UNDER SEC 384 THE JUDGE NEED ONLY SATISFY
HIMSELF THAT THE PERSON "MAY REQUIRE CARE AND TREATMENT IN AN
INSTITUTION FOR THE MENTALLY ILL." HAVING MADE SUCH A FINDING, THE
DECISION WHETHER TO COMMIT THAT PERSON TO A HOSPITAL MAINTAINED BY THE
DEPARTMENT OF CORRECTION OR TO A CIVIL HOSPITAL IS COMPLETELY IN THE
HANDS OF ADMINISTRATIVE OFFICIALS.  (FN3)  EXCEPT FOR PERSONS COMMITTED
TO DANNEMORA UPON EXPIRATION OF SENTENCE UNDER SEC. 384, ALL OTHER
CIVILLY COMMITTED TO HOSPITALS MAINTAINED BY THE DEPARTMENT OF
CORRECTION ARE COMMITTED ONLY AFTER JUDICIAL PROCEEDINGS HAVE BEEN HELD
IN WHICH IT IS DETERMINED THAT THE PERSON IS SO DANGEROUSLY MENTALLY
ILL THAT HIS PRESENCE IN A CIVIL HOSPITAL IS DANGEROUS TO THE SAFETY OF
OTHER PATIENTS OR EMPLOYEES, OR TO THE COMMUNITY.  (FN4) 

THIS STATUTORY CLASSIFICATION CANNOT BE JUSTIFIED BY THE CONTENTION
THAT DANNEMORA IS SUBSTANTIALLY SIMILAR TO OTHER MENTAL HOSPITALS IN
THE STATE AND THAT COMMITMENT TO ONE HOSPITAL OR ANOTHER IS SIMPLY AN
ADMINISTRATIVE MATTER AFFECTING NO FUNDAMENTAL RIGHTS.  THE PARTIES
HAVE DESCRIBED VARIOUS CHARACTERISTICS OF DANNEMORA TO SHOW ITS
SIMILARITIES AND DISSIMILARITIES TO CIVIL HOSPITALS IN NEW YORK.  AS
STRIKING AS THE DISSIMILARITIES ARE, WE NEED NOT MAKE ANY FACTUAL
DETERMINATION AS TO THE NATURE OF DANNEMORA; THE NEW YORK STATE
LEGISLATURE HAS ALREADY MADE THAT DETERMINATION.  BY STATUTE, THE
HOSPITAL IS UNDER THE JURISDICTION OF THE DEPARTMENT OF CORRECTION AND
IS USED FOR THE PURPOSE OF CONFINING AND CARING FOR INSANE PRISONERS
AND PERSONS, LIKE BAXSTROM, COMMITTED AT THE EXPIRATION OF A PENAL
TERM.  N.Y. CORRECTION LAW SEC. 375.  CIVIL MENTAL HOSPITALS IN NEW
YORK, ON THE OTHER HAND, ARE UNDER THE JURISDICTION AND CONTROL OF THE
DEPARTMENT OF MENTAL HYGIENE.  CERTAIN PRIVILEGES OF PATIENTS AT
DANNEMORA ARE RESTRICTED BY STATUTE.  N.Y. CORRECTION LAW SEC. 388. 
MOREOVER, AS HAS BEEN NOTED, SPECIALIZED STATUTORY PROCEDURES ARE
PRESCRIBED FOR COMMITMENT TO HOSPITALS UNDER THE JURISDICTION OF THE
DEPARTMENT OF CORRECTION.  WHILE WE MAY ASSUME THAT TRANSFER AMONG LIKE
MENTAL HOSPITALS IS A PURELY ADMINISTRATIVE FUNCTION, WHERE, AS HERE,
THE STATE HAS CREATED FUNCTIONALLY DISTINCT INSTITUTIONS MAY NOT BE
WHOLLY ARBITRARY. 

THE DIRECTOR ARGUES THAT IT IS REASONABLE TO CLASSIFY PERSONS IN
BAXSTROM'S CLASS TOGETHER WITH THOSE FOUND TO BE DANGEROUSLY INSANE
SINCE SUCH PERSONS ARE NOT ONLY INSANE BUT HAVE PROVEN CRIMINAL
TENDENCIES AS SHOWN BY THEIR PAST CRIMINAL RECORDS.  HE POINTS TO
DECISIONS OF THE NEW YORK COURT OF APPEALS SUPPORTING THIS VIEW. 
PEOPLE EX REL. KAMISAROFF V. JOHNSTON, 13 N.Y.2D 66, 192 N.E.2D 11;
PEOPLE EX REL. BRUNSON V. JOHNSTON, 15 N.Y.2D 647, 204 N.E.2D 200. 

WE FIND THIS CONTENTION UNTENABLE.  WHERE THE STATE HAS PROVIDED FOR
A JUDICIAL PROCEEDING TO DETERMINE THE DANGEROUS PROPENSITIES OF ALL
OTHERS CIVILLY COMMITTED TO AN INSTITUTION OF THE DEPARTMENT OF
CORRECTION, IT MAY NOT DENY THIS RIGHT TO A PERSON IN BAXSTROM'S
POSITION SOLELY ON THE GROUND THAT HE WAS NEARING THE EXPIRATION OF A
PRISON TERM.  (FN5)  IT MAY OR NOT BE THAT BAXSTROM IS PRESENTLY
MENTALLY ILL AND SUCH A DANGER TO OTHERS THAT THE STRICT SECURITY OF A
DEPARTMENT OF CORRECTION HOSPITAL IS WARRANTED.  ALL OTHERS RECEIVE A
JUDICIAL HEARING ON THIS ISSUE.  EQUAL PROTECTION DEMANDS THAT BAXSTROM
RECEIVE THE SAME. 

THE CAPRICIOUSNESS OF THE CLASSIFICATION EMPLOYED BY THE STATE IS
THROWN SHARPLY INTO FOCUS BY THE FACT THAT THE FULL BENEFIT OF A
JUDICIAL HEARING TO DETERMINE DANGEROUS TENDENCIES IS WITHHELD ONLY IN
THE CASE OF CIVIL COMMITMENT OF ONE AWAITING EXPIRATION OF PENAL
SENTENCE.  A PERSON WITH A PAST CRIMINAL RECORD IS PRESENTLY ENTITLED
TO A HEARING ON THE QUESTION WHETHER HE IS DANGEROUSLY MENTALLY ILL SO
LONG AS HE IS NOT IN PRISON AT THE TIME CIVIL COMMITMENT PROCEEDINGS
ARE INSTITUTED.  GIVEN THIS DISTINCTION, ALL SEMBLANCE OF RATIONALITY
OF THE CLASSIFICATION, PURPORTEDLY BASED UPON CRIMINAL PROPENSITIES,
DISAPPEARS. 

IN ORDER TO ACCORD TO PETITIONER THE EQUAL PROTECTION OF THE LAWS, HE
WAS AND IS ENTITLED TO A REVIEW OF THE DETERMINATION AS TO HIS SANITY
IN CONFORMITY WITH PROCEEDINGS GRANTED ALL OTHERS CIVILLY COMMITTED
UNDER SEC. 74 OF THE NEW YORK MENTAL HYGIENE LAW.  HE IS ALSO ENTITLED
TO A HEARING UNDER THE PROCEDURE GRANTED ALL OTHERS BY SEC. 85 OF THE
NEW YORK MENTAL HYGIENE LAW TO DETERMINE WHETHER HE IS SO DANGEROUSLY
MENTALLY ILL THAT HE MUST REMAIN IN A HOSPITAL MAINTAINED BY THE
DEPARTMENT OF CORRECTION.  THE JUDGMENT OF THE APPELLATE DIVISION OF
THE SUPREME COURT, IN THE THIRD JUDICIAL DEPARTMENT OF NEW YORK IS
REVERSED AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE STATE APPARENTLY PERMITS COUNSEL TO BE RETAINED IN SUCH
PROCEEDINGS WHERE THE PERSON CAN AFFORD TO HIRE HIS OWN ATTORNEY
DESPITE THE FACT THAT SEC. 384 MAKES NO PROVISION FOR COUNSEL TO BE
PRESENT.  SEE 1961 OP. N.Y. ATTY. GEN. 180, 181.  BAXSTROM IS INDIGENT,
HOWEVER, AND HAD NO COUNSEL AT THIS HEARING. 

FN2  AS IT APPEARED WHEN APPLIED TO PETITIONER IN 1961, N.Y.
CORRECTION LAW SEC. 384 PROVIDED IN PART: 

"1. WITHIN THIRTY DAYS PRIOR TO THE EXPIRATION OF THE TERM OF A
PRISONER CONFINED IN THE DANNEMORA STATE HOSPITAL, WHEN IN THE OPINION
OF THE DIRECTOR SUCH PRISONER CONTINUES INSANE, THE DIRECTOR SHALL
APPLY TO A JUDGE OF A COURT OF RECORD FOR THE CERTIFICATION OF SUCH
PERSON AS PROVIDED IN THE MENTAL HYGIENE LAW FOR THE CERTIFICATION OF A
PERSON NOT IN CONFINEMENT ON A CRIMINAL CHARGE.  THE COURT IN WHICH
SUCH PROCEEDINGS ARE INSTITUTED SHALL IF SATISFIED THAT SUCH PERSON MAY
REQUIRE CARE AND TREATMENT IN AN INSTITUTION FOR THE MENTALLY ILL,
ISSUE AN ORDER DIRECTING THAT SUCH PERSON BE COMMITTED TO THE CUSTODY
OF THE COMMISSIONER OF MENTAL HYGIENE TO BE PLACED IN AN APPROPRIATE
STATE INSTITUTION OF THE DEPARTMENT OF MENTAL HYGIENE OR OF THE
DEPARTMENT OF CORRECTION AS MAY BE DESIGNATED FOR THE CUSTODY OF SUCH
PERSON BY AGREEMENT BETWEEN THE HEADS OF THE TWO DEPARTMENTS." 

FN3  IN THIS CASE, THE ADMINISTRATIVE DECISION TO RETAIN BAXSTROM IN
DANNEMORA WAS MADE BEFORE ANY HEARING WAS AFFORDED TO BAXSTROM AND WAS
MADE DESPITE THE OTHERWISE UNANIMOUS CONCLUSION BY TESTIFYING
PSYCHIATRISTS, INCLUDING AN INDEPENDENT EXAMINING PSYCHIATRIST AND
RESPONDENT HIMSELF, THAT THERE WAS NO REASON WHY BAXSTROM COULD NOT BE
TRANSFERRED TO A CIVIL INSTITUTION.  THE FOLLOWING IS A PORTION OF THE
TRANSCRIPT OF THE HEARING BEFORE THE SURROGATE:    "THE COURT:
(ADDRESSING DR. HEROLD) HAVE YOU ANY OBJECTION IF THIS MAN IS
TRANSFERRED TO A CIVIL HOSPITAL IF THE DEPARTMENT OF MENTAL HYGIENE SO
DECREES? 

"DR. HEROLD:  NONE WHATEVER. 

"THE COURT:  AND I, SIR, AGREE WITH YOU.  I HAVE NO OBJECTION TO HIS
TRANSFER IF THE DEPARTMENT OF MENTAL HYGIENE SO FINDS. 

"I HOPE THAT YOU WILL BE TRANSFERRED TO A CIVIL HOSPITAL. 

"GOOD LUCK."    AND AT THE FIRST HABEAS CORPUS HEARING: 

"Q. DO YOU FEEL, DOCTOR, FROM YOUR EXAMINATION AND EXAMINING THE
RECORDS OF THIS MAN, HE NEEDS ADDITIONAL CARE?  IS THAT CORRECT? 

"A. (DR. KERR) YES, SIR.  MAY I SAY SOMETHING AT THIS POINT, SIR? 

"Q. SURELY. 

"A. SINCE MR. BAXSTROM'S SENTENCE HAS ACTUALLY EXPIRED, SIR, I WOULD
LIKE TO SAY THAT IN MY OPINION THERE IS NO REASON WHY HE COULD NOT BE
TREATED IN A CIVIL MENTAL HOSPITAL.  I WOULD SIMPLY LIKE TO SAY THAT
FOR THE RECORD, SIR. 

"THE COURT:  ALL RIGHT." 

FN4  N.Y. MENTAL HYGIENE LAW SECS. 85, 135.  SEE ALSO N.Y. CODE CRIM.
PROC. SECS. 662-B(3)(B), 872(1)(B), AS AMENDED, N.Y. LAWS 1965, C. 540,
SECS. 1, 2.  FORMER SEC. 412 OF CORRECTION LAW, PERMITTING COMMITMENT
TO MATTEAWAN STATE HOSPITAL OF ANY PATIENT WHO HAD PREVIOUSLY BEEN
SENTENCED TO A TERM OF IMPRISONMENT, WITHOUT THE BENEFIT OF THE
PROCEEDING ACCORDED OTHERS UNDER SEC. 85 OF THE MENTAL HYGIENE LAW, WAS
HELD UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION IN UNITED STATES
EX REL. CARROLL V. MCNIELL, 294 F.2D 117 (C.A.2D CIR. 1961), PROBABLE
JURISDICTION NOTED, 368 U.S. 951, VACATED AND DISMISSED AS MOOT, 369
U.S. 149, AND WAS REPEALED BY N.Y. LAWS 1965, C. 524.  EVEN THAT
PROVISION REQUIRED A SHOWING THAT THE PERSON STILL MANIFESTED CRIMINAL
TENDENCIES. 

FN5  IN ORAL ARGUMENT, COUNSEL FOR RESPONDENT SUGGESTED THAT THE
DETERMINATION BY THE DEPARTMENT OF MENTAL HYGIENE TO RETAIN A PERSON IN
DANNEMORA MUST BE BASED NOT ONLY ON HIS PAST CRIMINAL RECORD, BUT ALSO
ON EVIDENCE THAT HE IS CURRENTLY DANGEROUS.  FAR FROM SUPPORTING THE
VALIDITY OF THE PROCEDURE, THIS ONLY SERVES TO FURTHER ACCENT THE
ARBITRARY NATURE OF THE CLASSIFICATION.  UNDER THIS PROCEDURE, ALL
CIVIL COMMITMENTS TO AN INSTITUTION UNDER THE CONTROL OF THE DEPARTMENT
OF CORRECTION REQUIRE A DETERMINATION THAT THE PERSON IS PRESENTLY
DANGEROUS; ALL PERSONS SO COMMITTED ARE ENTITLED TO A JUDICIAL
PROCEEDING TO DETERMINE THIS FACT EXCEPT THOSE AWAITING EXPIRATION OF
SENTENCE.  THEIR FATE IS DECIDED BY UNREVIEWABLE DETERMINATIONS OF THE
DEPARTMENT OF MENTAL HYGIENE. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :







UNITED STATES V. EWELL 383 U.S. 116 


NO. 29.  ARGUED NOVEMBER 18, 1965.  - DECIDED FEBRUARY 23, 1966.  - 242
F. SUPP. 166, 451, REVERSED AND REMANDED. 


APPELLEES WERE INDICTED ON DECEMBER 14, 1962, UNDER 26 U.S.C. SEC.
4705(A) FOR SELLING NARCOTICS WITHOUT THE REQUISITE FORM.  THEY PLEADED
GUILTY AND WERE SENTENCED TO THE MINIMUM STATUTORY TERMS, ONE FOR FIVE
YEARS AND THE OTHER, AS A SECOND OFFENDER, FOR TEN YEARS.  ON JULY 17,
1963, THE SEVENTH CIRCUIT, IN AN UNRELATED CASE, HELD THAT AN
INDICTMENT UNDER SEC. 4705(A) THAT DOES NOT ALLEGE THE PURCHASER'S NAME
IS DEFECTIVE AND MAY BE SET ASIDE.  APPELLEES' MOTIONS TO VACATE THEIR
CONVICTIONS WERE FILED ON NOVEMBER 6, 1963, AND JANUARY 28, 1964, AND
WERE GRANTED BY THE DISTRICT COURT ON JANUARY 13 AND APRIL 13, 1964,
RESPECTIVELY.  THEY WERE IMMEDIATELY REARRESTED ON NEW COMPLAINTS AND
REINDICTED ON MARCH 26 AND JUNE 15, 1964.  THE INDICTMENTS, CHARGING
THE SAME SALES ORIGINALLY ALLEGED BUT NAMING THE PURCHASERS, CONTAINED
THREE COUNTS, CHARGING VIOLATIONS OF 26 U.S.C.  SEC. 4705(A), 26 U.S.C.
SEC. 4704(A) AND 21 U.S.C. SEC. 174.  ON JULY 13 AND JULY 30, 1964, THE
DISTRICT COURT GRANTED APPELLEES' MOTIONS TO DISMISS THE INDICTMENTS ON
THE GROUND THAT THEY HAD BEEN DENIED THEIR SIXTH AMENDMENT RIGHTS TO A
SPEEDY TRIAL, WHILE REJECTING THEIR DOUBLE JEOPARDY ARGUMENT.  IN ITS
PETITION FOR REHEARING THE GOVERNMENT ADVISED THAT UPON A PLEA OR
FINDING OF GUILTY ALL COUNTS EXCEPT THAT UNDER SEC. 4704(A) WOULD BE
DISMISSED AGAINST THE SECOND-OFFENDER APPELLEE, IN WHICH CASE THE
MINIMUM STATUTORY SENTENCE WOULD BE FIVE YEARS RATHER THAN THE TEN
YEARS UNDER SEC. 4705(A).  THE REQUEST FOR REHEARING WAS DENIED AND THE
GOVERNMENT APPEALED TO THIS COURT, LIMITING THE APPEAL TO THAT PORTION
OF THE DISTRICT COURT'S ORDERS DISMISSING THE COUNT OF THE INDICTMENTS
CHARGING VIOLATIONS OF SEC. 4704(A).  HELD: 

1.  THE MERE PASSAGE OF 19 MONTHS BETWEEN THE ORIGINAL ARRESTS AND
THE HEARINGS ON THE LATER INDICTMENTS IS NOT IPSO FACTO A VIOLATION OF
THE SIXTH AMENDMENT'S GUARANTEE OF A SPEEDY TRIAL.  PP. 120-121. 

(A)  THE RIGHT TO A SPEEDY TRIAL DEPENDS UPON ALL THE CIRCUMSTANCES
OF THE CASE, INCLUDING THE EFFECT UPON THE RIGHTS OF THE ACCUSED AND
THE RIGHTS OF SOCIETY.  P. 120. 

(B)  SINCE THE ONLY IMPORTANT INTERVAL OF TIME OCCURRED AS A RESULT
OF THE SEVENTH CIRCUIT'S DECISION IN AN UNRELATED CASE, THE SUBSTANTIAL
INTERVAL BETWEEN THE ORIGINAL AND SUBSEQUENT INDICTMENTS DOES NOT OF
ITSELF VIOLATE THE SIXTH AMENDMENT'S GUARANTEE.  PP. 120-121. 

(C)  WHEN A DEFENDANT OBTAINS A REVERSAL OF A PRIOR, UNSATISFIED
CONVICTION HE MAY BE RETRIED IN THE NORMAL COURSE OF EVENTS.  UNITED
STATES V. BALL, 163 U.S. 662; UNITED STATES V. TATEO, 377 U.S. 463.  P.
121. 

2.  THAT THE GOVERNMENT IS PROCEEDING UNDER SEC. 4704 RATHER THAN
SEC. 4705 DOES NOT RENDER THE DELAY PREJUDICIAL AND OPPRESSIVE.  PP.
121-123. 

(A)  THE NEW INDICTMENTS WERE BROUGHT WITHIN THE STATUTE OF
LIMITATIONS APPLICABLE TO SEC. 4704.  P. 122. 

(B)  APPELLEES' CLAIM OF POSSIBLE PREJUDICE IN DEFENDING THEMSELVES
IS INSUBSTANTIAL, SPECULATIVE AND PREMATURE.  THEY MENTION NO EVIDENCE
THAT HAS BEEN LOST OR WITNESSES WHO HAVE DISAPPEARED.  PP. 122-123. 

(C)  THE GOVERNMENT SEEKS TO SUSTAIN THE SEC. 4704 CHARGES, WITH THE
LESSER MINIMUM SENTENCES, NOT TO OPPRESS, BUT TO GIVE THE TRIAL JUDGE,
IF APPELLEES ARE AGAIN CONVICTED, THE OPPORTUNITY TO TAKE INTO ACCOUNT
THE TIME APPELLEES HAVE ALREADY SPENT IN PRISON.  P. 123. 

3.  APPELLEES' INVOCATION OF THE DOUBLE JEOPARDY CLAUSE WAS PROPERLY
REJECTED BY THE TRIAL COURT.  IF THE PRESENT INDICTMENTS CHARGE THE
SAME OFFENSE AS THE SEC. 4705 OFFENSE FOR WHICH APPELLEES WERE
PREVIOUSLY CONVICTED, THEY MAY, AFTER THEIR CONVICTIONS HAVE BEEN
VACATED ON THEIR OWN MOTIONS, BE RETRIED UNDER EITHER SEC. 4705 OR SEC.
4704; IF THE TWO OFFENSES ARE NOT THE SAME THEN THE DOUBLE JEOPARDY
CLAUSE BY ITS TERMS DOES NOT PREVENT PROSECUTION UNDER SEC. 4704.  PP.
124-125. 

UNITED STATES V. EWELL ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF INDIANA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

APPELLEES CLARENCE EWELL AND RONALD DENNIS WERE INDICTED ON DECEMBER
14, 1962, FOR SELLING NARCOTICS WITHOUT THE ORDER FORM REQUIRED BY 26
U.S.C. SEC. 4705(A) (1964 ED.).  (FN1)  THE INDICTMENTS, EACH ALLEGING
A SINGLE SALE, DID NOT NAME THE PURCHASERS.  AFTER PLEAS OF GUILTY ON
DECEMBER 18 AND DECEMBER 19 THEY WERE SENTENCED TO THE MINIMUM TERMS OF
IMPRISONMENT PERMITTED BY THE STATUTE, DENNIS FOR FIVE YEARS AND EWELL,
AS A SECOND OFFENDER, FOR TEN YEARS.  (FN2)  ON JULY 17, 1963, THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT, IN AN UNRELATED CASE, HELD
THAT A SEC. 4705(A) INDICTMENT THAT DOES NOT ALLEGE THE NAME OF THE
PURCHASER IS DEFECTIVE AND MAY BE SET ASIDE UNDER 28 U.S.C. SEC.  2255
(1964 ED.).  LAUER V. UNITED STATES, 320 F.2D 187.  (FN3)  EWELL'S
MOTION OF NOVEMBER 6, 1963, TO VACATE HIS CONVICTION, AND DENNIS'
SIMILAR MOTION OF JANUARY 28, 1964, WERE GRANTED BY THE DISTRICT COURT
ON JANUARY 13 AND APRIL 13, 1964, RESPECTIVELY.  APPELLEES WERE
IMMEDIATELY REARRESTED ON NEW COMPLAINTS AND REINDICTED, EWELL ON MARCH
26 AND DENNIS ON JUNE 15, 1964.  THESE INDICTMENTS, CHARGING THE SAME
SALES ALLEGED IN THE ORIGINAL INDICTMENTS BUT THIS TIME NAMING THE
PURCHASERS, CONTAINED THREE COUNTS:  COUNT I CHARGED VIOLATIONS OF 26
U.S.C. SEC. 4705(A); COUNT II CHARGED SALES NOT IN OR FROM THE ORIGINAL
STAMPED PACKAGES IN VIOLATION OF 26 U.S.C. SEC. 4704(A) (1964 ED.);
(FN4) COUNT III CHARGED DEALING IN ILLEGALLY IMPORTED NARCOTICS IN
VIOLATION OF 21 U.S.C. SEC 174 (1964 ED.). 

ON JULY 13 AND JULY 30, 1964, RESPECTIVELY, THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA GRANTED THE MOTIONS
OF EWELL AND DENNIS TO DISMISS THE INDICTMENTS AGAINST THEM ON THE
GROUND THAT THEY HAD BEEN DENIED THEIR SIXTH AMENDMENT RIGHTS TO A
SPEEDY TRIAL, WHILE REJECTING THEIR OTHER CONTENTION THAT THEY WERE
ALSO BEING PLACED IN DOUBLE JEOPARDY.   IN ITS PETITION FOR REHEARING
ON THE DISMISSAL OF THE INDICTMENT AGAINST EWELL, THE GOVERNMENT
ADVISED THE COURT THAT UPON A PLEA OR FINDING OF GUILTY, ALL COUNTS
EXCEPT THAT UNDER 26 U.S.C. SEC. 4704(A) WOULD BE DISMISSED AGAINST
HIM, LEAVING A CONVICTION UPON WHICH THE MINIMUM SENTENCE WOULD BE ONLY
FIVE YEARS FOR A SECOND OFFENDER, (FN5) IN CONTRAST TO THE MINIMUM 10
YEAR SENTENCE WHICH EWELL HAD PREVIOUSLY RECEIVED UNDER SEC.  4705(A). 
THE COURT DENIED THE REQUEST FOR REHEARING AND THE GOVERNMENT THEN
APPEALED DIRECTLY TO THIS COURT FROM THE DISMISSAL OF THE INDICTMENTS
AGAINST EWELL AND DENNIS.  18 U.S.C. SEC. 3731 (1964 ED.).  THE
GOVERNMENT HAS LIMITED ITS APPEAL TO THAT PORTION OF THE ORDER OF THE
DISTRICT COURT IN EACH CASE THAT DISMISSED THE SECOND COUNT OF EACH
INDICTMENT, CHARGING A VIOLATION OF 26 U.S.C. SEC. 4704(A).  WE NOTED
PROBABLE JURISDICTION.  381 U.S. 909.  WE REVERSE. 

WE CANNOT AGREE THAT THE PASSAGE OF 19 MONTHS BETWEEN THE ORIGINAL
ARRESTS AND THE HEARINGS ON THE LATER INDICTMENTS ITSELF DEMONSTRATES A
VIOLATION OF THE SIXTH AMENDMENT'S GUARANTEE OF A SPEEDY TRIAL.  (FN6)
THIS GUARANTEE IS AN IMPORTANT SAFEGUARD TO PREVENT UNDUE AND
OPPRESSIVE INCARCERATION PRIOR TO TRIAL, TO MINIMIZE ANXIETY AND
CONCERN ACCOMPANYING PUBLIC ACCUSATION AND TO LIMIT THE POSSIBILITIES
THAT LONG DELAY WILL IMPAIR THE ABILITY OF AN ACCUSED TO DEFEND
HIMSELF.  HOWEVER, IN LARGE MEASURE BECAUSE OF THE MANY PROCEDURAL
SAFEGUARDS PROVIDED AN ACCUSED, THE ORDINARY PROCEDURES FOR CRIMINAL
PROSECUTION ARE DESIGNED TO MOVE AT A DELIBERATE PACE.  A REQUIREMENT
OF UNREASONABLE SPEED WOULD HAVE A DELETERIOUS EFFECT BOTH UPON THE
RIGHTS OF THE ACCUSED AND UPON THE ABILITY OF SOCIETY TO PROTECT
ITSELF.  THEREFORE, THIS COURT HAS CONSISTENTLY BEEN OF THE VIEW THAT
"THE RIGHT OF A SPEEDY TRIAL IS NECESSARILY RELATIVE.  IT IS CONSISTENT
WITH DELAYS AND DEPENDS UPON CIRCUMSTANCES.  IT SECURES RIGHTS TO A
DEFENDANT.  IT DOES NOT PRECLUDE THE RIGHTS OF PUBLIC JUSTICE." 
BEAVERS V. HAUBERT, 198 U.S. 77, 87.  "WHETHER DELAY IN COMPLETING A
PROSECUTION  ...  AMOUNTS TO AN UNCONSTITUTIONAL DEPRIVATION OF RIGHTS
DEPENDS UPON THE CIRCUMSTANCES  ...  .  THE DELAY MUST NOT BE
PURPOSEFUL OR OPPRESSIVE," POLLARD V. UNITED STATES, 352 U.S. 354,
361.  "THE ESSENTIAL INGREDIENT IS ORDERLY EXPEDITION AND NOT MERE
SPEED."  SMITH V. UNITED STATES, 360 U.S. 1, 10. 

IN THIS CASE, APPELLEES WERE PROMPTLY INDICTED AND CONVICTED AFTER
THEIR ARRESTS IN 1962 AND WERE IMMEDIATELY REARRESTED AND REINDICTED IN
DUE COURSE AFTER THEIR SEC. 2255 MOTIONS WERE GRANTED IN 1964. 
MOREOVER, IT WAS THE DECISION IN LAUER V. UNITED STATES, SUPRA, AND THE
SUBSEQUENT VACATION OF APPELLEES' PRIOR CONVICTIONS THAT PRECIPITATED
THE LATER INDICTMENTS.  IN THESE CIRCUMSTANCES, THE SUBSTANTIAL
INTERVAL BETWEEN THE ORIGINAL AND SUBSEQUENT INDICTMENTS DOES NOT IN
ITSELF VIOLATE THE SPEEDY TRIAL PROVISION OF THE CONSTITUTION. 

IT HAS LONG BEEN THE RULE THAT WHEN A DEFENDANT OBTAINS A REVERSAL OF
A PRIOR, UNSATISFIED CONVICTION, HE MAY BE RETRIED IN THE NORMAL COURSE
OF EVENTS.  UNITED STATES V. BALL, 163 U.S. 662, 671-672; UNITED STATES
V. TATEO, 377 U.S. 463, 465, 473-474.  THE RULE OF THESE CASES, WHICH
DEALT WITH THE DOUBLE JEOPARDY CLAUSE, HAS BEEN THOUGHT WISE BECAUSE IT
PROTECTS THE SOCIETAL INTEREST IN TRYING PEOPLE ACCUSED OF CRIME,
RATHER THAN GRANTING THEM IMMUNIZATION BECAUSE OF LEGAL ERROR AT A
PREVIOUS TRIAL, AND BECAUSE IT ENHANCES THE PROBABILITY THAT APPELLATE
COURTS WILL BE VIGILANT TO STRIKE DOWN PREVIOUS CONVICTIONS THAT ARE
TAINTED WITH REVERSIBLE ERROR.  UNITED STATES V. TATEO, SUPRA, AT 466. 
THESE POLICIES, SO CAREFULLY PRESERVED IN THIS COURT'S INTERPRETATION
OF THE DOUBLE JEOPARDY CLAUSE, WOULD BE SERIOUSLY UNDERCUT BY THE
INTERPRETATION GIVEN THE SPEEDY TRIAL CLAUSE BY THE COURT BELOW. 
INDEED, SUCH AN INTERPRETATION WOULD PLACE A PREMIUM UPON COLLATERAL
RATHER THAN UPON DIRECT ATTACK BECAUSE OF THE GREATER POSSIBILITY THAT
IMMUNIZATION MIGHT ATTACH. 

APPELLEES THEMSELVES CONCEDE THAT BALL AND TATEO ARE AMPLE AUTHORITY
FOR RETRIAL ON CHARGES UNDER SEC. 4705, DESPITE THEIR SIXTH AMENDMENT
CONTENTIONS.  (FN7)  BUT THEY URGE US TO PROHIBIT PROSECUTION IN THEIR
CASES BECAUSE THE GOVERNMENT IS PROCEEDING UNDER SEC.  4704 RATHER THAN
SEC. 4705 AND BECAUSE THE PASSAGE OF TIME HAS ALLEGEDLY IMPAIRED THEIR
ABILITY TO DEFEND THEMSELVES ON THIS NEW AND DIFFERENT CHARGE, THEREBY
RENDERING THE DELAY PREJUDICIAL AND OPPRESSIVE. 

WE NOTE, FIRST, HOWEVER, THAT THE NEW INDICTMENTS CHARGING VIOLATIONS
OF SEC. 4704 WERE BROUGHT WELL WITHIN THE APPLICABLE STATUTE OF
LIMITATIONS, WHICH IS USUALLY CONSIDERED THE PRIMARY GUARANTEE AGAINST
BRINGING OVERLY STALE CRIMINAL CHARGES.  SURELY APPELLEES COULD CLAIM
NO AUTOMATIC VIOLATION OF THEIR RIGHTS TO A SPEEDY TRIAL IF THERE HAD
BEEN NO CHARGES OR CONVICTIONS IN 1962 BUT ONLY THE SEC. 4704
INDICTMENT IN 1964.  IN COMPARISON WITH THAT SITUATION, THE INDICTMENTS
AND CONVICTIONS OF 1962 MIGHT WELL HAVE ENHANCED APPELLEES' ABILITY TO
DEFEND THEMSELVES, FOR THEY WERE AT THE VERY LEAST PUT ON EARLY NOTICE
THAT THE GOVERNMENT INTENDED TO PROSECUTE THEM FOR THE SPECIFIC SALES
WITH WHICH THEY WERE THEN AND ARE NOW CHARGED. 

SECOND, THE APPELLEES' CLAIM OF POSSIBLE PREJUDICE IN DEFENDING
THEMSELVES IS INSUBSTANTIAL, SPECULATIVE AND PREMATURE.  THEY MENTION
NO SPECIFIC EVIDENCE WHICH HAS ACTUALLY DISAPPEARED OR HAS BEEN LOST,
NO WITNESSES WHO ARE KNOWN TO HAVE DISAPPEARED.  ALTHOUGH THE PRESENT
CHARGES ALLEGE SALES NOT IN OR FROM THE ORIGINAL STAMPED PACKAGES,
UNDER SEC. 4704, RATHER THAN SALES WITHOUT THE PURCHASER'S WRITTEN
ORDER FORM, UNDER SEC. 4705, THE CHARGES ARE BASED ON THE SAME SALES AS
WERE INVOLVED IN THE PREVIOUS INDICTMENTS.  IN THIS RESPECT, IT SHOULD
BE RECALLED THAT THE PROBLEM OF DELAY IS THE GOVERNMENT'S TOO, FOR IT
STILL CARRIES THE BURDEN OF PROVING THE CHARGES BEYOND A REASONABLE
DOUBT. 

THIRD, THE NEW INDICTMENTS OCCURRED ONLY AFTER THE VACATION OF THE
PREVIOUS CONVICTIONS; AND THE GOVERNMENT NOW SEEKS TO SUSTAIN THE SEC.
4704 CHARGES, WHICH CARRY LESSER MINIMUM SENTENCES THAN THE CHARGES
UNDER SEC. 4705(A), NOT TO OPPRESS, BUT TO EXTEND TO THE TRIAL JUDGE,
IF THESE APPELLEES ARE AGAIN CONVICTED, THE CLEAR OPPORTUNITY TO TAKE
DUE ACCOUNT OF THE TIME BOTH EWELL AND DENNIS HAVE ALREADY SPENT IN
PRISON.  WE FIND NO OPPRESSIVE OR CULPABLE GOVERNMENTAL CONDUCT
INHERING IN THESE FACTS. 

THE DISTRICT COURT APPARENTLY CONSIDERED RETRIAL AND RECONVICTION TO
BE OPPRESSIVE BECAUSE APPELLEES HAD ALREADY SPENT SUBSTANTIAL TIME IN
PRISON AND BECAUSE IN ITS VIEW THE LAW WOULD NOT PERMIT TIME ALREADY
SERVED TO BE CREDITED AGAINST THE SENTENCES WHICH MIGHT BE IMPOSED UPON
RECONVICTION.  THIS, TOO, IS A PREMATURE CONCERN.  THE APPELLEES HAVE
NOT YET BEEN CONVICTED ON THE SECOND INDICTMENTS; AND IF THEY WERE TO
BE RECONVICTED ON SEC.  4705 OR SEC. 4704 COUNTS IT SHOULD NOT BE
ASSUMED THAT THE CONTROLLING STATUTE WOULD PREVENT A CREDIT FOR TIME
ALREADY SERVED.  HOWEVER THAT MAY BE, AS MATTERS NOW STAND, THE
REMAINING CHARGES THE GOVERNMENT SEEKS TO SUSTAIN ARE UNDER SEC. 4704,
WHICH CARRIES A MINIMUM SENTENCE IN THE CASE OF EWELL OF FIVE YEARS, AS
COMPARED WITH A MINIMUM OF 10 YEARS UNDER SEC. 4705, AND TWO YEARS
INSTEAD OF FIVE YEARS IN THE CASE OF DENNIS.  IN THESE CIRCUMSTANCES,
THERE IS EVERY REASON TO EXPECT THE SENTENCING JUDGE TO TAKE THE
INVALID INCARCERATIONS INTO ACCOUNT IN FASHIONING NEW SENTENCES IF
APPELLEES ARE AGAIN CONVICTED.  (FN8) 

APPELLEES ALSO INVOKE THE DOUBLE JEOPARDY CLAUSE TO SUSTAIN THE
DISMISSAL OF THE INDICTMENTS, A GROUND WHICH WE THINK THE TRIAL COURT
CORRECTLY REJECTED.  THE FIFTH AMENDMENT PROVIDES THAT NO PERSON SHALL
"BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF LIFE OR
LIMB."  THAT CLAUSE, DESIGNED TO PROHIBIT DOUBLE JEOPARDY AS WELL AS
DOUBLE PUNISHMENT, IS NOT PROPERLY INVOKED TO BAR A SECOND PROSECUTION
UNLESS THE "SAME OFFENSE" IS INVOLVED IN BOTH THE FIRST AND SECOND
TRIALS.  THE IDENTITY OF OFFENSES IS, THEREFORE, A RECURRING ISSUE IN
DOUBLE JEOPARDY CASES, BUT ONE WHICH WE NEED NOT FACE IN THIS CASE. 
HERE THE GOVERNMENT IS NOT ATTEMPTING TO PROSECUTE A DEFENDANT FOR AN
ALLEGEDLY DIFFERENT OFFENSE IN THE FACE OF AN ACQUITTAL OR AN
UNREVERSED CONVICTION FOR ANOTHER OFFENSE ARISING OUT OF THE SAME
TRANSACTION.  SEE ABBATE V. UNITED STATES, 359 U.S. 187, 196, SEPARATE
OPINION OF MR. JUSTICE BRENNAN.  NOR IS THERE ANY QUESTION HERE OF THE
GOVERNMENT'S JOINING IN ONE INDICTMENT MORE THAN ONE COUNT ALLEGEDLY
CHARGING THE SAME CRIME.  COMPARE BLOCKBURGER V. UNITED STATES, 284
U.S. 299.  HERE, THE GOVERNMENT SEEKS ONLY TO SUSTAIN ONE CHARGE UNDER
SEC. 4704.  IF THE PRESENT INDICTMENTS CHARGE THE SAME OFFENSE AS THE
SEC. 4705 OFFENSE FOR WHICH APPELLEES WERE PREVIOUSLY CONVICTED, THEY
MAY CLEARLY BE RETRIED ON EITHER SEC. 4705 OR SEC. 4704 AFTER THEIR
CONVICTIONS HAVE BEEN VACATED ON THEIR OWN MOTIONS.  IN THESE
CIRCUMSTANCES, WHERE THE APPELLEES ARE SUBJECT TO A SECOND TRIAL UNDER
BALL AND TATAEO, THE FACT THAT SEC. 4704, RATHER THAN SEC. 4705, IS
CHARGED DOES NOT IN ANY MANNER EXPAND THE NUMBER OF TRIALS THAT MAY BE
BROUGHT AGAINST THEM.  IF THE TWO OFFENSES ARE NOT, HOWEVER, THE SAME,
THEN THE DOUBLE JEOPARDY CLAUSE BY ITS OWN TERMS DOES NOT PREVENT THE
CURRENT PROSECUTION UNDER SEC. 4704.  (FN9)  REVERSED AND REMANDED. 

FN1  "IT SHALL BE UNLAWFUL FOR ANY PERSON TO SELL, BARTER, EXCHANGE,
OR GIVE AWAY NARCOTIC DRUGS EXCEPT IN PURSUANCE OF A WRITTEN ORDER OF
THE PERSON TO WHOM SUCH ARTICLE IS SOLD, BARTERED, EXCHANGED, OR GIVEN,
ON A FORM TO BE ISSUED IN BLANK FOR THAT PURPOSE BY THE SECRETARY OR
HIS DELEGATE."  26 U.S.C. SEC. 4705(A). 

FN2  "WHOEVER COMMITS AN OFFENSE  ...  DESCRIBED IN SECTION 4705(A)
...  SHALL BE IMPRISONED NOT LESS THAN 5 OR MORE THAN 20 YEARS AND, IN
ADDITION, MAY BE FINED NOT MORE THAN $20,000.  FOR A SECOND OR
SUBSEQUENT OFFENSE, THE OFFENDER SHALL BE IMPRISONED NOT LESS THAN 10
OR MORE THAN 40 YEARS AND, IN ADDITION, MAY BE FINED NOT MORE THAN
$20,000."  26 U.S.C. SEC. 7237(B) (1964 ED.). 

FN3  THAT CIRCUIT HAS SINCE OVERRULED ITS LAUER DECISION.  COLLINS V.
MARKLEY, 346 F.2D 230 (EN BANC). 

FN4  "IT SHALL BE UNLAWFUL FOR ANY PERSON TO PURCHASE, SELL,
DISPENSE, OR DISTRIBUTE NARCOTIC DRUGS EXCEPT IN THE ORIGINAL STAMPED
PACKAGE OR FROM THE ORIGINAL STAMPED PACKAGE; AND THE ABSENCE OF
APPROPRIATE TAXPAID STAMPS FROM NARCOTIC DRUGS SHALL BE PRIMA FACIE
EVIDENCE OF A VIOLATION OF THIS SUBSECTION BY THE PERSON IN WHOSE
POSSESSION THE SAME MAY BE FOUND."  26 U.S.C. SEC. 4704(A). 

FN5  26 U.S.C. SEC. 7237(A) (1964 ED.). 

FN6  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT
TO A SPEEDY AND PUBLIC TRIAL  ...  ."  U.S. CONST., AMENDMENT VI. 

FN7  IN TATEO THE DEFENDANT HAD SPEND ALMOST SEVEN YEARS IN PRISON
UNDER A CONVICTION THAT ULTIMATELY WAS OVERTURNED UPON A COLLATERAL
ATTACK; YET WHEN THIS COURT REMANDED FOR A NEW TRIAL THERE WAS NO
SUGGESTION THAT HIS RIGHT TO A SPEEDY TRIAL WAS BEING DENIED HIM.  SEE
ALSO BAYLESS V. UNITED STATES, 147 F.2D 169, WHERE IT WAS HELD THAT IT
DOES NOT VIOLATE THE SPEEDY TRIAL CLAUSE TO RETRY A DEFENDANT WHO HAD
BEEN INCARCERATED FOR FIVE YEARS UNDER A CONVICTION THAT HAD BEEN
SUBSEQUENTLY INVALIDATED.    FN8  WE LIKEWISE REJECT APPELLEES'
ARGUMENT THAT THE DISMISSAL OF THEIR INDICTMENTS ON SEC. 4704 CAN BE
SUSTAINED ON THE BASIS THAT THEY WERE DENIED THEIR SIXTH AMENDMENT
RIGHTS "TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION  ...
."  APPELLEES DID NOT PRESENT THIS GROUND FOR GRANTING THEIR MOTION IN
THE TRIAL COURT, AND AS WE READ HIS OPINION THE TRIAL JUDGE DID NOT
BASE HIS RULING ON THAT GROUND.  IN ANY EVENT, THE CLAIM IS NOT THAT
THE SECOND INDICTMENTS DID NOT CARRY ADEQUATE NOTICE OF THE CHARGES,
WHICH THEY OBVIOUSLY DID, BUT THAT THE NOTICE CAME MUCH TOO LATE, A
CONTENTION WHICH WE HAVE ALREADY DISPOSED OF. 

FN9  THIS SITUATION IS TO BE DISTINGUISHED FROM GREEN V. UNITED
STATES, 355 U.S. 184, WHERE THE DEFENDANT WAS INDICTED UPON A CHARGE OF
FIRST-DEGREE MURDER.  THIS COURT HELD THAT THE DOUBLE JEOPARDY CLAUSE
PREVENTED THAT PROSECUTION ON THE ALTERNATIVE GROUNDS EITHER THAT THE
JURY HAD RETURNED AN IMPLIED VERDICT OF ACQUITTAL ON THE FIRST-DEGREE
MURDER CHARGE OR THAT THE JURY WAS DISMISSED, WITHOUT THE DEFENDANT'S
CONSENT AND AFTER HE HAD BEEN PLACED IN JEOPARDY ON THE CHARGE OF FIRST
DEGREE MURDER, WITHOUT RETURNING ANY EXPRESS VERDICT ON THAT CHARGE. 
NEITHER OF THESE GROUNDS IS APPLICABLE HERE BECAUSE THE SOLE CHARGE IN
THE FIRST INDICTMENT WAS ON SEC. 4705. 

THIS SITUATION SHOULD ALSO BE DISTINGUISHED FROM THAT PRESENTED IN
CIUCCI V. ILLINOIS, 356 U.S. 571, AND HOAG V. NEW JERSEY, 356 U.S.
464.  THOSE CASES INVOLVED ONLY THE QUESTION WHETHER THE FOURTEENTH
AMENDMENT PREVENTS A STATE FROM BRINGING SUCCESSIVE PROSECUTIONS
AGAINST A DEFENDANT WHERE EACH PROSECUTION ALLEGES THE SAME STATUTORY
OFFENSE AND THE SAME GENERAL TRANSACTION BY THE DEFENDANT BUT NAMES
DIFFERENT VICTIMS. 

MR. JUSTICE BRENNAN, CONCURRING IN THE RESULT. 

I AM UNABLE TO JOIN THE COURT'S OPINION, BECAUSE IT COULD BE READ AS
IMPLYING APPROVAL OF A COURSE OF GOVERNMENT CONDUCT THAT I FIND MOST
OPPRESSIVE.  APPELLEES WERE INDICTED INITIALLY UNDER ONLY ONE OF THE
THREE STATUTES WHICH THIS COURT HELD IN GORE V. UNITED STATES, 357 U.S.
386, OVER MY DISSENT, MIGHT CONSTITUTIONALLY BE APPLIED TO A SINGLE
NARCOTICS SALE.  THEIR SUCCESSFUL ATTACKS UPON THEIR SENTENCES BROUGHT
ON THESE NEW INDICTMENTS FOR ALL THREE STATUTORY OFFENSES.  I CAN THINK
OF NO PLAUSIBLE REASONS FOR THIS TACTIC EXCEPT TO INCREASE THE PRESSURE
ON APPELLEES TO PLEAD GUILTY BY RAISING THE THREAT OF CUMULATIVE
SENTENCES, OR TO PUNISH THEM FOR ASSERTING THEIR RIGHTS TO CHALLENGE
THEIR ORIGINAL SENTENCES.  THE GOVERNMENT OFFERED TO ABANDON THIS
TACTIC AND LIMIT PROSECUTION TO 26 U.S.C. SEC. 4704 (1964 ED.)  ONLY ON
REHEARING, AFTER THE PROSECUTION SEEMED IMPERILED. 

GOVERNMENT TACTICS OF THIS KIND RAISE VERY SERIOUS QUESTIONS FOR ME.
CF. GREEN V. UNITED STATES, 355 U.S. 184; ABBATE V. UNITED STATES, 359
U.S. 187, 196-201 (SEPARATE OPINION); VAN ALSTYNE, IN GIDEON'S WAKE:
HARSHER PENALTIES AND THE "SUCCESSFUL" CRIMINAL APPELLANT, 74 YALE L.J.
606 (1965).  BUT I AGREE WITH THE COURT THAT, BECAUSE THE PROSECUTION
IS NOW LIMITED TO SEC. 4704, APPELLEES HAVE SUFFERED NO PREJUDICE.  I
WOULD NOT, HOWEVER, AS THE COURT SEEMS TO DO, IMPLY APPROVAL OF THE
TACTICS THE GOVERNMENT EMPLOYED.  INDEED, THE GOVERNMENT INFORMED US
AFTER ARGUMENT THAT THIS PROBLEM IS INVOLVED IN ANOTHER CASE, PENDING
BELOW, WHERE AN ACCUSED INITIALLY INDICTED FOR ONLY ONE OFFENSE HAS
BEEN REINDICTED FOR THREE.  IT DOES NOT APPEAR THAT THE GOVERNMENT HAS
LIMITED THE PROSECUTION IN THAT CASE TO SEC. 4704. 

MR. JUSTICE FORTAS, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

I CANNOT AGREE THAT THE DISTRICT COURT ERRED IN DISMISSING THE SECOND
INDICTMENT.  FOLLOWING VACATION OF THE CONVICTIONS UNDER THE ORIGINAL
INDICTMENT, THE GOVERNMENT WAS AT LIBERTY TO REINDICT AND RETRY
APPELLEES FOR THE SAME OFFENSE.  (FN1)  I AGREE WITH THE OPINION OF THE
COURT THAT, IN THE CIRCUMSTANCES, THIS WOULD NOT HAVE DEPRIVED
APPELLEES OF THEIR SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL. 

BUT THE GOVERNMENT DID NOT MERELY REINDICT APPELLEES FOR THE
IDENTICAL OFFENSE.  THEY WERE CHARGED, ON THE BASIS OF THE SAME ALLEGED
SALE OF 400 MILLIGRAMS OF HEROIN, WITH VIOLATIONS OF TWO ADDITIONAL
NARCOTICS STATUTES.  UNDER THE ORIGINAL ONE-COUNT INDICTMENT CHARGING A
VIOLATION OF 26 U.S.C. SEC. 4705(A) (1964 ED.), DENNIS FACED A SENTENCE
OF FROM FIVE TO 20 YEARS; EWELL, A SECOND OFFENDER, 10 TO 40 YEARS. 
UNDER THE NEW THREE-COUNT INDICTMENT, THE DISTRICT COURT MAY CUMULATE
THE SENTENCES ON THE THREE COUNTS AND IMPOSE TERMS OF FROM 12 TO 50
YEARS UPON DENNIS AND FROM 25 TO 100 YEARS UPON EWELL.  CUMULATIVE
SENTENCES ARE PERMITTED BY THIS COURT'S HOLDING IN GORE V. UNITED
STATES, 357 U.S. 386.  BUT CF. COMMENT, TWICE IN JEOPARDY, 75 YALE L.J.
262, 299-317 (1965).  IN MY OPINION, HOWEVER, THE GOVERNMENT MAY NOT,
FOLLOWING VACATION OF A CONVICTION, REINDICT A DEFENDANT FOR ADDITIONAL
OFFENSES ARISING OUT OF THE SAME TRANSACTION BUT NOT CHARGED IN THE
ORIGINAL INDICTMENT. 

IN A DIFFERENT SETTING THIS COURT HAS VIVIDLY CRITICIZED THE
GOVERNMENT'S ATTEMPT TO PENALIZE A SUCCESSFUL APPELLANT BY RETRYING HIM
ON AN AGGRAVATED BASIS.  GREEN V. UNITED STATES, 355 U.S. 184. 
ALTHOUGH THE DECISION IN GREEN WAS PREMISED UPON THE DOUBLE JEOPARDY
CLAUSE, (FN2) ITS TEACHING HAS ANOTHER DIMENSION.  GREEN ALSO
DEMONSTRATES THIS COURT'S CONCERN TO PROTECT THE RIGHT OF APPEAL IN
CRIMINAL CASES.  (FN3)  IT TEACHES THAT THE GOVERNMENT, IN ITS ROLE AS
PROSECUTOR, MAY NOT ATTACH TO THE EXERCISE OF THE RIGHT TO APPEAL THE
PENALTY THAT IF THE APPELLANT SUCCEEDS, HE MAY BE RETRIED ON ANOTHER
AND MORE SERIOUS CHARGE.  MR. JUSTICE BLACK, SPEAKING FOR THE COURT IN
GREEN, SAID:  "THE LAW SHOULD NOT, AND IN OUR JUDGMENT DOES NOT, PLACE
THE DEFENDANT IN SUCH AN INCREDIBLE DILEMMA."  355 U.S., AT 193. 
(FN4) 

IN THE PRESENT CASE IT APPEARS THAT THE PURPOSE AS WELL AS THE EFFECT
OF THE GOVERNMENT'S ACTION WAS TO DISCOURAGE THE EXERCISE OF THE RIGHT,
CONFERRED BY STATUTE, TO SEEK REVIEW OF CRIMINAL CONVICTIONS. 
ACCORDING TO THE DISTRICT COURT, THE ONLY REASON ADVANCED BY THE
GOVERNMENT FOR THE MULTIPLICATION OF CHARGES AGAINST APPELLEES WAS THAT
THE PROSECUTOR WANTED TO DISCOURAGE OTHERS CONVICTED OF NARCOTICS
OFFENSES FROM ATTACKING THEIR CONVICTIONS.  AS THE DISTRICT JUDGE PUT
IT, THERE WAS "THE EXPRESSED CONCERN OF THE PROSPECTIVE LIBERATION OF A
NUMBER OF SIMILARLY CONVICTED NARCOTIC FELONS."  (FN5)  242 F. SUPP.
451, AT 456.  THE PROSECUTOR'S CONCERN IS UNDERSTANDABLE, BUT THE RIGHT
TO DIRECT AND COLLATERAL REVIEW IS GRANTED BY LAW.  THE PROSECUTOR MAY
NOT CONSISTENTLY WITH THE DUE PROCESS CLAUSE BOOBYTRAP THIS RIGHT,
EITHER TO PUNISH OR TO FRIGHTEN. 

IT IS NO ANSWER TO THE FOREGOING THAT AFTER - AND ONLY AFTER - THE
DISTRICT COURT HAD DISMISSED THE ENTIRE THREE-COUNT INDICTMENT, THE
GOVERNMENT IN SUPPORT OF ITS PETITION FOR REHEARING ADVISED THE COURT
THAT "UPON A PLEA OR FINDING OF GUILTY" ALL COUNTS EXCEPT THAT UNDER 26
U.S.C. SEC. 4704(A) (1964 ED.)  WOULD BE DISMISSED.  THIS BELATED
OFFER, CONDITIONED UPON A CONVICTION, DID NOT ABSOLVE THE GOVERNMENT. 
THE GOVERNMENT CONTINUED TO INSIST UPON GOING TO TRIAL ON AN
UNSUPPORTABLE INDICTMENT.  EVEN IN ITS NOTICE OF APPEAL TO THIS COURT,
THE GOVERNMENT ASSERTED ITS RIGHT TO TRY THE APPELLEES UPON THE ENTIRE
"PRESENT INDICTMENT."  NOT UNTIL THE SOLICITOR GENERAL FILED THE
JURISDICTIONAL STATEMENT WAS IT SUGGESTED THAT THE GOVERNMENT WOULD
AGREE TO ACTION TAKEN TO DISMISS TWO OF THE COUNTS - AND THAT
SUGGESTION WAS NEGATIVELY PHRASED:  THE GOVERNMENT "WOULD NOT QUESTION
DISMISSAL" OF THE COUNTS ALLEGING VIOLATION OF SEC. 4705(A) AND 21
U.S.C. SEC. 174 (1964 ED.).  I CANNOT AGREE THAT THIS BACKHANDED
CONCESSION WARRANTS OUR REVERSING THE DISTRICT COURT'S DISMISSAL OF THE
THREE-COUNT INDICTMENT.  THE INDICTMENT IS THE GOVERNMENT'S
RESPONSIBILITY.  IT MUST STAND THE TEST OF LAWFULNESS AS THE GOVERNMENT
PRESENTS IT.  THE GOVERNMENT CANNOT REST UPON A FAULTY INDICTMENT, AND
DEFEND IT BY INDICATING ITS WILLINGNESS TO ACQUIESCE IN SURGERY WHICH
IT IS APPARENTLY UNREADY TO INITIATE. 

IN MY VIEW, THIS REINDICTMENT, GREATLY EXCEEDING THE ORIGINAL
INDICTMENT IN ITS CHARGES AND THREATENED PENALTIES, WAS NOT A LAWFUL
BASIS UPON WHICH TO PUT APPELLEES TO THEIR DEFENSE.  APART FROM
CONSIDERATIONS OF THE IMPERMISSIBLE PURPOSE AS FOUND BY THE DISTRICT
COURT, THIS TECHNIQUE HAS THE NECESSARY EFFECT OF UNLAWFULLY BURDENING
AND PENALIZING THE EXERCISE OF THE RIGHT TO SEEK REVIEW OF A CRIMINAL
CONVICTION UNDER FEDERAL LAW.  THIS, IN MY OPINION, IS FORBIDDEN BY THE
DUE PROCESS CLAUSE.  I WOULD AFFIRM THE DECISION OF THE DISTRICT COURT,
WITHOUT PREJUDICE, IF OTHER FACTORS PERMIT, TO REINDICTMENT WITHIN THE
LIMITS OF THE ORIGINAL CHARGE. 

FN1  UNITED STATES V. TATEO, 377 U.S. 463; UNITED STATES V. BALL, 163
U.S. 662; NOTE, DOUBLE JEOPARDY:  THE REPROSECUTION PROBLEM, 77 HARV.
L. REV. 1272, 1283-1285 (1964). 

FN2  IN GREEN, THE COURT HELD THAT THE DOUBLE JEOPARDY CLAUSE
REQUIRED REVERSAL OF A FEDERAL CONVICTION FOR FIRST-DEGREE MURDER
WHERE, IN A FORMER TRIAL ON THAT CHARGE, THE DEFENDANT WAS CONVICTED OF
THE LESSER OFFENSE OF MURDER IN THE SECOND DEGREE.  CF. MR. JUSTICE
BRENNAN'S SEPARATE OPINION IN ABBATE V. UNITED STATES, 359 U.S. 187,
196-201, DISCUSSING THE APPLICABILITY OF DOUBLE JEOPARDY PRINCIPLES TO
SUCCESSIVE PROSECUTIONS BASED ON THE SAME TRANSACTION BUT FOR ALLEGEDLY
DIFFERENT OFFENSES. 

FN3  VAN ALSTYNE, IN GIDEON'S WAKE:  HARSHER PENALTIES AND THE
"SUCCESSFUL" CRIMINAL APPELLANT, 74 YALE L. J. 606, 629 (1965); NOTE,
77 HARV. L. REV., AT 1287.  SEE FAY V. NOIA, 372 U.S. 391, 440; DRAPER
V. WASHINGTON, 372 U.S. 487; LANE V. BROWN, 372 U.S. 477; DOUGLAS V.
CALIFORNIA, 372 U.S. 353; SMITH V. BENNETT, 365 U.S. 708; BURNS V.
OHIO, 360 U.S. 252; GRIFFIN V. ILLINOIS, 351 U.S. 12. 

FN4  CF. STATE V. WOLF, 46 N.J. 301, 216 A.2D 586 (1966); PEOPLE V.
HENDERSON, 60 CAL.  2D 482, 497, 386 P.2D 677, 687 (1963). 

FN5  ON THE AUTHORITY OF LAUER V. UNITED STATES, 320 F.2D 187 (C.A.
7TH CIR.), APPELLEES HAD OBTAINED VACATION OF THEIR CONVICTIONS ON THE
GROUND THAT SINCE THE INDICTMENT DID NOT NAME THE ALLEGED PURCHASER OF
NARCOTICS IT FAILED PROPERLY TO STATE AN OFFENSE UNDER 26 U.S.C. SEC.
4705(A).  THE GOVERNMENT HAS FURNISHED THE COURT WITH INFORMATION
CONCERNING FIVE OTHER INDIVIDUALS WHOSE CONVICTIONS WERE SET ASIDE
UNDER LAUER AND WHO WERE THEN SUBJECTED TO REPROSECUTION UNDER MULTIPLE
COUNT INDICTMENTS.  SUBSEQUENTLY, LAUER WAS OVERRULED BY COLLINS V.
MARKLEY, 346 F.2D 230 (C.A. 7TH CIR.).
..END :




















BROWN V. LOUISIANA 383 U.S. 131 


NO. 41.  ARGUED DECEMBER 6, 1965.  - DECIDED FEBRUARY 23, 1966.  -
REVERSED. 


FOR THE PURPOSE OF PEACEABLY PROTESTING THE DENIAL OF THEIR
CONSTITUTIONAL RIGHT TO EQUAL TREATMENT IN A PUBLIC FACILITY,
PETITIONERS, FIVE NEGROES, ENTERED THE PUBLIC ROOM OF A REGIONAL
LIBRARY OPERATED ON A SEGREGATED BASIS BY THE LOUISIANA PARISHES WHERE
THEY LIVED AND ANOTHER PARISH.  NO ONE WAS IN THE LIBRARY ROOM EXCEPT
PETITIONERS AND THE LIBRARY ASSISTANT.  PETITIONER BROWN REQUESTED A
BOOK.  THE LIBRARY ASSISTANT, AFTER CHECKING, ADVISED THAT THE LIBRARY
DID NOT HAVE THE BOOK BUT THAT SHE WOULD REQUEST IT FROM THE STATE
LIBRARY AND THAT BROWN WOULD BE NOTIFIED UPON ITS RECEIPT.  (THE BOOK
WAS MAILED TO HIM AT A LATER DATE, WITH INSTRUCTIONS TO MAIL IT BACK OR
DELIVER IT TO THE LIBRARY'S "BLUE" BOOKMOBILE, A FACILITY RESERVED FOR
NEGROES ONLY.)  THEREAFTER THE LIBRARY ASSISTANT ASKED PETITIONERS TO
LEAVE.  BUT, FOR THE PURPOSE OF MANIFESTING SILENT PROTEST AGAINST THE
LIBRARY'S SEGREGATION POLICY, BROWN SAT DOWN AND THE OTHERS STOOD NEAR
HIM.  THERE WAS NO NOISE OR BOISTEROUS TALKING.  THE BRANCH LIBRARIAN
ALSO ASKED PETITIONERS TO LEAVE BUT THEY REMAINED.  IN ABOUT 10 OR 15
MINUTES FROM THE TIME PETITIONERS ENTERED THE LIBRARY THE SHERIFF AND
DEPUTIES ARRIVED, HAVING BEEN FOREWARNED, ASKED PETITIONERS TO LEAVE,
AND WERE TOLD THAT THEY WOULD NOT.  THE SHERIFF THEN ARRESTED THEM. 
SUBSEQUENTLY PETITIONERS WERE CONVICTED FOR VIOLATING THE LOUISIANA
BREACH OF THE PEACE STATUTE, WHICH MAKES IT A CRIME "WITH INTENT TO
PROVOKE A BREACH OF THE PEACE, OR UNDER CIRCUMSTANCES SUCH THAT A
BREACH OF THE PEACE MAY BE OCCASIONED THEREBY" TO CROWD OR CONGREGATE
IN A PUBLIC BUILDING AND FAIL OR REFUSE TO DISPERSE OR MOVE ON WHEN
ORDERED TO DO SO BY A LAW ENFORCEMENT OFFICER OR OTHER AUTHORIZED
PERSON.  HELD:  THE DECISION BELOW IS REVERSED.  PP.  133-151. 

MR. JUSTICE FORTAS, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS, CONCLUDED THAT: 

1.  THERE IS NOT THE SLIGHTEST EVIDENCE TO SUSTAIN APPLICATION OF THE
BREACH OF THE PEACE STATUTE TO PETITIONERS, SINCE THERE WAS NOTHING TO
INDICATE AN INTENT BY THEM TO PROVOKE A BREACH OF THE PEACE AND THERE
WERE NO CIRCUMSTANCES TO INDICATE THAT SUCH A BREACH MIGHT BE
OCCASIONED, THE DEMONSTRATION HAVING BEEN PEACEFUL, ORDERLY, AND
UNPROVOCATIVE, AND NO PATRONS HAVING BEEN PRESENT IN THE LIBRARY. 
PETITIONERS' CONDUCT WAS CONSIDERABLY LESS DISRUPTIVE THAN IN ANY OF
THE PRECEDING THREE SITUATIONS IN WHICH THIS COURT INVALIDATED
CONVICTIONS UNDER THE SAME LOUISIANA STATUTE OR ITS PREDECESSOR, GARNER
V. LOUISIANA, 368 U.S. 157; TAYLOR V. LOUISIANA, 370 U.S. 154; AND COX
V. LOUISIANA, 379 U.S. 536.  PP. 133-135, 139-140. 

2.  THE RIGHTS OF PEACEABLE AND ORDERLY PROTEST WHICH PETITIONERS
WERE EXERCISING UNDER THE FIRST AND FOURTEENTH AMENDMENTS ARE NOT
CONFINED TO VERBAL EXPRESSION BUT EMBRACE OTHER TYPES OF EXPRESSION,
INCLUDING APPROPRIATE SILENT AND REPROACHFUL PRESENCE, SUCH AS
PETITIONERS USED HERE.  THEREFORE, EVEN IF SUCH ACTION CAME WITHIN THE
STATUTE, IT WOULD HAVE TO BE HELD THAT THE STATUTE COULD NOT
CONSTITUTIONALLY REACH PETITIONERS' ACTIONS IN THE CIRCUMSTANCES OF
THIS CASE.  PP. 141-142. 

3.  REGULATION OF LIBRARIES AND OTHER PUBLIC FACILITIES MUST BE
REASONABLE AND NONDISCRIMINATORY AND MAY NOT BE USED AS A PRETEXT FOR
PUNISHING THOSE WHO EXERCISE THEIR CONSTITUTIONAL RIGHTS.  P. 143. 

MR. JUSTICE BRENNAN CONCLUDED THAT: 

THE LOUISIANA BREACH OF THE PEACE STATUTE IS UNCONSTITUTIONAL FOR
OVERBREADTH, AS THIS COURT HELD IN COX V. LOUISIANA, 379 U.S. 536.  NO
INTERVENING LIMITING CONSTRUCTION OR LEGISLATIVE REVISION OF THE
STATUTE AND NO CIRCUMSTANCE OF THIS CASE MAKE THAT DECLARATION OF
INVALIDITY ANY LESS CONTROLLING HERE.  PP. 143-150. 

MR. JUSTICE WHITE CONCLUDED THAT: 

PETITIONERS' CONVICTIONS MUST BE REVERSED SINCE ON THIS RECORD IT IS
SHOWN THAT THEY WERE MAKING ONLY NORMAL AND AUTHORIZED USE OF THE
PUBLIC LIBRARY BY REMAINING 10 MINUTES AFTER ORDERING A BOOK.  PP. 150
151. 

BROWN ET AL. V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

MR. JUSTICE FORTAS ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS JOIN. 

THIS IS THE FOURTH TIME IN LITTLE MORE THAN FOUR YEARS THAT THIS
COURT HAS REVIEWED CONVICTIONS BY THE LOUISIANA COURTS FOR ALLEGED
VIOLATIONS, IN A CIVIL RIGHTS CONTEXT, OF THAT STATE'S BREACH OF THE
PEACE STATUTE.  IN THE THREE PRECEDING CASES THE CONVICTIONS WERE
REVERSED.  GARNER V. LOUISIANA, 368 U.S. 157, DECIDED IN DECEMBER 1961,
INVOLVED SIT-INS BY NEGROES AT LUNCH COUNTERS CATERING ONLY TO WHITES. 
TAYLOR V. LOUISIANA, 370 U.S. 154, DECIDED IN JUNE 1962, CONCERNED A
SIT-IN BY NEGROES IN A WAITING ROOM AT A BUS DEPOT, RESERVED "FOR
WHITES ONLY."  COX V. LOUISIANA, 379 U.S. 536, DECIDED IN JANUARY 1965,
INVOLVED THE LEADER OF SOME 2,000 NEGROES WHO DEMONSTRATED IN THE
VICINITY OF A COURTHOUSE AND JAIL TO PROTEST THE ARREST OF FELLOW
DEMONSTRATORS.  IN EACH OF THESE CASES THE DEMONSTRATION WAS ORDERLY. 
IN EACH, THE PURPOSE OF THE PARTICIPANTS WAS TO PROTEST THE DENIAL TO
NEGROES OF RIGHTS GUARANTEED THEM BY STATE AND FEDERAL CONSTITUTIONS
AND TO PETITION THEIR GOVERNMENTS FOR REDRESS OF GRIEVANCES.  IN NONE
WAS THERE EVIDENCE THAT THE PARTICIPANTS PLANNED OR INTENDED DISORDER. 
IN NONE WERE THERE CIRCUMSTANCES WHICH MIGHT HAVE LED TO A BREACH OF
THE PEACE CHARGEABLE TO THE PROTESTING PARTICIPANTS.  (FN1) 

IN GARNER THE COURT FOUND THE RECORD UTTERLY BARREN OF EVIDENCE TO
SUPPORT CONVICTIONS UNDER TITLE 14, ARTICLE 103(7) OF THE LOUISIANA
CRIMINAL CODE, WHICH THEN DEFINED THE CRIME OF "DISTURBING THE PEACE"
IN SPECIFIC DETAIL.  (FN2)  THE RECORD CONTAINED NO EVIDENCE OF
BOISTEROUS OR DISORDERLY ACTIONS OR OF "PASSIVE CONDUCT LIKELY TO CAUSE
A PUBLIC DISTURBANCE."  368 U.S., AT 173-174.  IN TAYLOR, WHICH AROSE
UNDER THE LOUISIANA STATUTE AS AMENDED TO READ IN ITS PRESENT FORM, SEE
P. 138, INFRA, THE COURT IN A PER CURIAM OPINION SET ASIDE THE
CONVICTIONS DESPITE EVIDENCE OF "RESTLESSNESS" AMONG THE WHITE ON
LOOKERS.  FINALLY, IN COX, THE COURT HELD THAT THE FACTS WOULD NOT
PERMIT APPLICATION OF LOUISIANA'S BREACH OF THE PEACE STATUTE, DESPITE
THE LARGE SCALE OF THE DEMONSTRATIONS AND THE FACT THAT PETITIONER'S
SPEECH OCCASIONED "GRUMBLING" ON THE PART OF WHITE ONLOOKERS. 
PETITIONER AND THE DEMONSTRATORS AS A GROUP, THOUGH "WELL BEHAVED,"
WERE FAR FROM SILENT, 379 U.S., AT 543, 546.  (FN3)  AS AN "ADDITIONAL
REASON" WHY THE CONVICTION COULD NOT BE SUSTAINED, THE COURT, CITING
TERMINIELLO V. CHICAGO, 337 U.S. 1, AND EDWARDS V. SOUTH CAROLINA, 372
U.S. 229, HELD THAT WERE THE STATUTE TO BE DEFINED AND APPLIED AS THE
LOUISIANA SUPREME COURT HAD DONE, IT WOULD BE UNCONSTITUTIONAL BECAUSE
THE VAGUENESS AND BREADTH OF THE DEFINITION "WOULD ALLOW PERSONS TO BE
PUNISHED MERELY FOR PEACEFULLY EXPRESSING UNPOPULAR VIEWS."  379 U.S.,
AT 551.  SEE EDWARDS V. SOUTH CAROLINA, SUPRA, AT 237. 

SINCE THE PRESENT CASE WAS DECIDED UNDER PRECISELY THE STATUTE
INVOLVED IN COX BUT BEFORE OUR DECISION IN THAT CASE WAS ANNOUNCED, IT
MIGHT WELL BE SUPPOSED THAT, WITHOUT FURTHER ADO, WE WOULD VACATE AND
REMAND IN LIGHT OF COX.  BUT BECAUSE THE INCIDENT LEADING TO THE
PRESENT CONVICTIONS OCCURRED IN A PUBLIC LIBRARY AND MIGHT BE THOUGHT
TO RAISE MATERIALLY DIFFERENT QUESTIONS, WE HAVE HEARD ARGUMENT AND
HAVE CONSIDERED THE CASE IN EXTENSO. 

THE LOCUS OF THE EVENTS WAS THE AUDUBON REGIONAL LIBRARY IN THE TOWN
OF CLINTON, LOUISIANA, PARISH OF EAST FELICIANA.  THE FRONT ROOM OF THE
BUILDING WAS USED AS A PUBLIC LIBRARY FACILITY WHERE PATRONS MIGHT
OBTAIN LIBRARY SERVICES.  IT WAS A SMALL ROOM, CONTAINING TWO TABLES
AND ONE CHAIR (APART FROM THE BRANCH ASSISTANT'S DESK AND CHAIRS), A
STOVE, A CARD CATALOGUE, AND OPEN BOOK SHELVES.  THE ROOM WAS REFERRED
TO BY THE REGIONAL LIBRARIAN, MRS. PERKINS, AS "THE ADULT READING-ROOM,
THE ADULT SERVICE-ROOM."  THE LIBRARY PERMITTED "REGISTERED BORROWERS"
TO "BROWSE" AMONG THE BOOKS IN THE ROOM OR TO BORROW BOOKS.  A
"REGISTERED BORROWER" WAS ONE WHO COULD PRODUCE AN IDENTIFICATION CARD
SHOWING THAT HE WAS REGISTERED BY THE AUDUBON REGIONAL LIBRARY.  OTHER
SPACE IN THE BUILDING INCLUDED THE HEADQUARTERS OF THE REGIONAL
LIBRARY. 

THE AUDUBON REGIONAL LIBRARY IS OPERATED JOINTLY BY THE PARISHES OF
EAST FELICIANA, WEST FELICIANA, AND ST. HELENA.  IT HAS THREE BRANCHES
AND TWO BOOKMOBILES.  THE BOOKMOBILES SERVED 33 SCHOOLS, BOTH WHITE AND
NEGRO, AS WELL AS "INDIVIDUALS."  ONE OF THE BOOKMOBILES WAS RED, THE
OTHER BLUE.  THE RED BOOKMOBILE SERVED ONLY WHITE PERSONS.  THE BLUE
BOOKMOBILE SERVED ONLY NEGROES.  IT IS A PERMISSIBLE INFERENCE THAT NO
NEGROES USED THE BRANCH LIBRARIES.  (FN4) 

THE REGISTRATION CARDS ISSUED TO NEGROES WERE STAMPED WITH THE WORD
"NEGRO."  A NEGRO IN POSSESSION OF SUCH A CARD WAS ENTITLED TO BORROW
BOOKS, BUT ONLY FROM THE BLUE BOOKMOBILE.  A WHITE PERSON COULD NOT
RECEIVE SERVICE FROM THE BLUE BOOKMOBILE.  HE WOULD HAVE TO WAIT UNTIL
THE RED BOOKMOBILE CAME AROUND, OR WOULD HAVE TO GO TO A BRANCH
LIBRARY. 

THIS TIDY PLAN WAS CHALLENGED ON SATURDAY, MARCH 7, 1964, AT ABOUT
11:30 A.M.  FIVE YOUNG NEGRO MALES, ALL RESIDENTS OF EAST OR WEST
FELICIANA PARISHES, WENT INTO THE ADULT READING OR SERVICE ROOM OF THE
AUDUBON REGIONAL LIBRARY AT CLINTON.  THE BRANCH ASSISTANT, MRS. KATIE
REEVES, WAS ALONE IN THE ROOM.  SHE MET THE MEN "BETWEEN THE TABLES"
AND ASKED IF SHE "COULD HELP."  PETITIONER BROWN REQUESTED A BOOK, "THE
STORY OF THE NEGRO" BY ARNA BONTEMPS.  MRS. REEVES CHECKED THE CARD
CATALOGUE, ASCERTAINED THAT THE BRANCH DID NOT HAVE THE BOOK, SO
ADVISED MR. BROWN, AND TOLD HIM THAT SHE WOULD REQUEST THE BOOK FROM
THE STATE LIBRARY, THAT HE WOULD BE NOTIFIED UPON ITS RECEIPT AND THAT
"HE COULD EITHER PICK IT UP OR IT WOULD BE MAILED TO HIM."  SHE TOLD
HIM THAT "HIS POINT OF SERVICE WAS A BOOKMOBILE OR IT COULD BE MAILED
TO HIM."  MRS. REEVES TESTIFIED THAT SHE EXPECTED THAT THE MEN WOULD
THEN LEAVE; THEY DID NOT, AND SHE ASKED THEM TO LEAVE.  THEY DID NOT. 
PETITIONER BROWN SAT DOWN AND THE OTHERS STOOD NEAR HIM.  THEY SAID
NOTHING; THERE WAS NO NOISE OR BOISTEROUS TALKING.  MRS. REEVES CALLED
MRS. PERKINS, THE REGIONAL LIBRARIAN, WHO WAS IN ANOTHER ROOM.  MRS.
PERKINS ASKED THE MEN TO LEAVE.  THEY REMAINED. 

NEITHER MRS. REEVES NOR MRS. PERKINS HAD CALLED THE SHERIFF, BUT IN
"10 TO 15 MINUTES" FROM THE TIME OF THE ARRIVAL OF THE MEN AT THE
LIBRARY, THE SHERIFF AND DEPUTIES ARRIVED.  THE SHERIFF ASKED THE
NEGROES TO LEAVE.  THEY SAID THEY WOULD NOT.  THE SHERIFF THEN ARRESTED
THEM.  THE SHERIFF HAD BEEN NOTIFIED THAT MORNING THAT MEMBERS OF THE
CONGRESS OF RACIAL EQUALITY "WERE GOING TO SIT-IN" AT THE LIBRARY. 
ORDINARILY, THE SHERIFF TESTIFIED, CORE TELLS HIM WHEN THEY ARE GOING
TO DEMONSTRATE OR PICKET.  THE SHERIFF WAS STANDING AT HIS "PLACE OF
BUSINESS" WHEN HE SAW "THESE 5 COLORED MALES COMING DOWN THE STREET." 
HE SAW THEM ENTER THE LIBRARY.  HE CALLED THE JAIL TO NOTIFY HIS
DEPUTIES, AND HE REACHED THE LIBRARY IMMEDIATELY AFTER THE DEPUTIES GOT
THERE.  WHEN THE SHERIFF ARRIVED, THERE WAS NO NOISE, NO DISTURBANCE. 
HE TESTIFIED THAT HE ARRESTED THEM "FOR NOT LEAVING A PUBLIC BUILDING
WHEN ASKED TO DO SO BY AN OFFICER." 

THE LIBRARY OBTAINED THE REQUESTED BOOK AND MAILED IT TO MR. BROWN ON
MARCH 28, 1964.  AN ACCOMPANYING CARD SAID, "YOU MAY RETURN THE BOOK
EITHER BY MAIL OR TO THE BLUE BOOKMOBILE."  THE REFERENCE TO THE COLOR
OF THE VEHICLE WAS OBVIOUSLY NOT DESIGNED TO FACILITATE IDENTIFICATION
OF THE LIBRARY VEHICLE.  THE BLUE BOOKMOBILE IS FOR NEGROES AND FOR
NEGROES ONLY. 

IN THE COURSE OF ARGUMENT BEFORE THIS COURT, COUNSEL FOR BOTH THE
STATE AND PETITIONERS STATED THAT THE CLINTON BRANCH WAS CLOSED AFTER
THE INCIDENT OF MARCH 7.  COUNSEL FOR THE STATE ALSO ADVISED THE COURT
THAT THE USE OF CARDS STAMPED "NEGRO" CONTINUES TO BE THE PRACTICE OF
THE REGIONAL LIBRARY. 

ON MARCH 25, 1964, MR. BROWN AND HIS FOUR COMPANIONS WERE TRIED AND
FOUND GUILTY.  BROWN WAS SENTENCED TO PAY $150 AND COSTS, AND IN
DEFAULT THEREOF TO SPEND 90 DAYS IN THE PARISH JAIL.  HIS COMPANIONS
WERE SENTENCED TO $35 AND COSTS, OR 15 DAYS IN JAIL.  THE CHARGE WAS
THAT THEY HAD CONGREGATED TOGETHER IN THE PUBLIC LIBRARY OF CLINTON,
LOUISIANA, "WITH THE INTENT TO PROVOKE A BREACH OF THE PEACE AND UNDER
CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MIGHT BE OCCASIONED
THEREBY" AND HAD FAILED AND REFUSED "TO LEAVE SAID PREMISES WHEN
ORDERED TO DO SO" BY THE LIBRARIAN AND BY THE SHERIFF. 

THE LOUISIANA BREACH OF PEACE STATUTE UNDER WHICH THEY WERE ACCUSED
READS AS FOLLOWS: "WHOEVER WITH INTENT TO PROVOKE A BREACH OF THE
PEACE, OR UNDER CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE
OCCASIONED THEREBY:  (1) CROWDS OR CONGREGATES WITH OTHERS  ...  IN
...  A  ...  PUBLIC PLACE OR BUILDING  ...  AND WHO FAILS OR REFUSES TO
DISPERSE AND MOVE ON, OR DISPERSE OR MOVE ON, WHEN ORDERED SO TO DO BY
ANY LAW ENFORCEMENT OFFICER  ...  OR ANY OTHER AUTHORIZED PERSON  ...
SHALL BE GUILTY OF DISTURBING THE PEACE."  (FN5) 

UNDER LOUISIANA LAW, THESE CONVICTIONS WERE NOT APPEALABLE.  SEE
GARNER V. LOUISIANA, SUPRA, AT 161-162.  PETITIONERS SOUGHT
DISCRETIONARY REVIEW BY THE LOUISIANA SUPREME COURT, WHICH DENIED THEIR
APPLICATION, FINDING NO ERROR.  THIS COURT GRANTED CERTIORARI, 381 U.S.
901, AND WE REVERSE. 

WE MAY BRIEFLY DISPOSE OF CERTAIN THRESHOLD PROBLEMS.  PETITIONERS
CANNOT CONSTITUTIONALLY BE CONVICTED MERELY BECAUSE THEY DID NOT COMPLY
WITH AN ORDER TO LEAVE THE LIBRARY.  SEE SHUTTLESWORTH V. CITY OF
BIRMINGHAM, 382 U.S. 87, 90-91; WRIGHT V. GEORGIA, 373 U.S. 284, 291
293; JOHNSON V. VIRGINIA, 373 U.S. 61; CF. COX V. LOUISIANA SUPRA, AT
579 (SEPARATE OPINION OF MR. JUSTICE BLACK).  THE STATUTE ITSELF READS
IN THE CONJUNCTIVE; IT REQUIRES BOTH THE DEFINED BREACH OF PEACE AND AN
ORDER TO MOVE ON.  WITHOUT REFERENCE TO THE STATUTE, IT MUST BE NOTED
THAT PETITIONERS' PRESENCE IN THE LIBRARY WAS UNQUESTIONABLY LAWFUL. 
IT WAS A PUBLIC FACILITY, OPEN TO THE PUBLIC.  NEGROES COULD NOT BE
DENIED ACCESS SINCE WHITE PERSONS WERE WELCOME.  WRIGHT V. GEORGIA,
SUPRA, AT 292; WATSON V. CITY OF MEMPHIS, 373 U.S. 526; JOHNSON V.
VIRGINIA, SUPRA. PETITIONERS' DEPORTMENT WHILE IN THE LIBRARY WAS
UNEXCEPTIONABLE.  THEY WERE NEITHER LOUD, BOISTEROUS, OBSTREPEROUS,
INDECOROUS NOR IMPOLITE.  THERE IS NO CLAIM THAT, APART FROM THE
CONTINUATION - FOR TEN OR FIFTEEN MINUTES - OF THEIR PRESENCE ITSELF,
THEIR CONDUCT PROVIDED A BASIS FOR THE ORDER TO LEAVE, OR FOR A CHARGE
OF BREACH OF THE PEACE. 

WE COME, THEN, TO THE BAREBONES OF THE PROBLEM.  PETITIONERS, FIVE
ADULT NEGRO MEN, REMAINED IN THE LIBRARY ROOM FOR A TOTAL OF TEN OR
FIFTEEN MINUTES.  THE FIRST FEW MOMENTS WERE OCCUPIED BY A RITUALISTIC
REQUEST FOR SERVICE AND A RESPONSE.  WE MAY ASSUME THAT THE RESPONSE
CONSTITUTED SERVICE, AND WE NEED NOT CONSIDER WHETHER IT WAS MERELY A
GAMBIT IN THE RITUAL.  THIS CEREMONY BEING OUT OF THE WAY, THE NEGROES
PROCEEDED TO THE BUSINESS IN HAND.  THEY SAT AND STOOD IN THE ROOM,
QUIETLY, AS MONUMENTS OF PROTEST AGAINST THE SEGREGATION OF THE
LIBRARY.  THEY WERE ARRESTED AND CHARGED AND CONVICTED OF BREACH OF THE
PEACE UNDER A SPECIFIC STATUTE. 

IF WE COMPARE THIS SITUATION WITH THAT IN GARNER, WE MUST INEVITABLY
CONCLUDE THAT HERE, TOO, THERE IS NOT THE SLIGHTEST EVIDENCE WHICH
WOULD OR COULD SUSTAIN THE APPLICATION OF THE STATUTE TO PETITIONERS. 
THE STATUTE REQUIRES A SHOWING EITHER OF "INTENT TO PROVOKE A BREACH OF
THE PEACE," OR OF "CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE
OCCASIONED" BY THE ACTS IN QUESTION.  THERE IS NOT IN THIS CASE THE
SLIGHTEST HINT OF EITHER.  WE NEED NOT BE BEGUILED BY THE RITUAL OF THE
REQUEST FOR A COPY OF "THE STORY OF THE NEGRO."  WE NEED NOT ASSUME
THAT PETITIONER BROWN AND HIS FRIENDS WERE IN SEARCH OF A BOOK FOR
NIGHT READING.  WE INSTEAD REST UPON THE MANIFEST FACT THAT THEY
INTENDED TO AND DID STAGE A PEACEFUL AND ORDERLY PROTEST DEMONSTRATION,
WITH NO "INTENT TO PROVOKE A BREACH OF THE PEACE."  SEE GARNER V.
LOUISIANA, SUPRA, AT 174. 

NOR WERE THE CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MIGHT BE
"OCCASIONED" BY THEIR ACTIONS, AS THE STATUTE ALTERNATIVELY PROVIDES. 
THE LIBRARY ROOM WAS EMPTY, EXCEPT FOR THE LIBRARIANS.  THERE WERE NO
OTHER PATRONS.  THERE WERE NO ONLOOKERS EXCEPT FOR THE VIGILANT AND
FOREWARNED SHERIFF AND HIS DEPUTIES.  PETITIONERS DID NOTHING AND SAID
NOTHING EVEN REMOTELY PROVOCATIVE.  THE DANGER, IF ANY EXISTED, WAS
SURELY LESS THAN IN THE COURSE OF THE SIT-IN AT THE "WHITE" LUNCH
COUNTERS IN GARNER.  AND SURELY THERE WAS LESS DANGER THAT A BREACH OF
THE PEACE MIGHT OCCUR FROM MRS. KATIE REEVES AND MRS. PERKINS IN THE
ADULT READING ROOM OF THE CLINTON BRANCH LIBRARY THAN THAT DISORDER
MIGHT RESULT FROM THE "RESTLESS" WHITE PEOPLE IN THE BUS DEPOT WAITING
ROOM IN TAYLOR, OR FROM THE 100 TO 300 "GRUMBLING" WHITE ONLOOKERS IN
COX.  BUT IN EACH OF THESE CASES, THIS COURT REFUSED TO COUNTENANCE
CONVICTIONS UNDER LOUISIANA'S BREACH OF THE PEACE STATUTE. 

THE ARGUMENT OF THE STATE OF LOUISIANA, HOWEVER, IS THAT THE ISSUE
PRESENTED BY THIS CASE IS MUCH SIMPLER THAN OUR STATEMENT WOULD
INDICATE.  THE ISSUE, ASSERTS THE STATE, IS SIMPLY THAT PETITIONERS
WERE USING THE LIBRARY ROOM "AS A PLACE IN WHICH TO LOAF OR MAKE A
NUISANCE OF THEMSELVES."  THE STATE ARGUES THAT THE "TEST" - THE
PERMISSIBLE CIVIL RIGHTS DEMONSTRATION - WAS CONCLUDED WHEN PETITIONERS
ENTERED THE LIBRARY, ASKED FOR SERVICE AND WERE SERVED.  HAVING
SATISFIED THEMSELVES, THE ARGUMENT RUNS, THAT THEY COULD GET SERVICE,
THEY SHOULD HAVE DEPARTED.  INSTEAD, THEY SIMPLY SAT THERE, "STARING
VACANTLY," AND THIS WAS "ENOUGH TO UNNERVE A WOMAN IN THE SITUATION
MRS. REEVES WAS IN."    THIS IS A PIQUANT VERSION OF THE AFFAIR, BUT
THE MATTER IS HARDLY TO BE DECIDED ON POINTS.  IT WAS NOT A GAME.  IT
COULD NOT BE WON SO HANDILY BY THE GESTURE OF SERVICE TO THIS
PARTICULAR REQUEST.  THERE IS NO DISPUTE THAT THE LIBRARY SYSTEM WAS
SEGREGATED, AND NO POSSIBLE DOUBT THAT THESE PETITIONERS WERE THERE TO
PROTEST THIS FACT.  BUT EVEN IF WE WERE TO AGREE WITH THE STATE'S
INGENUOUS CHARACTERIZATION OF THE EVENTS, WE WOULD HAVE TO REVERSE. 
THERE WAS NO VIOLATION OF THE STATUTE WHICH PETITIONERS ARE ACCUSED OF
BREACHING, NO DISORDER, NO INTENT TO PROVOKE A BREACH OF THE PEACE AND
NO CIRCUMSTANCES INDICATING THAT A BREACH MIGHT BE OCCASIONED BY
PETITIONERS' ACTIONS.  THE SOLE STATUTORY PROVISION INVOKED BY THE
STATE CONTAINS NOT A WORD ABOUT OCCUPYING THE READING ROOM OF A PUBLIC
LIBRARY FOR MORE THAN 15 MINUTES, ANY MORE THAN IT PURPORTS TO PUNISH
THE BARE REFUSAL TO OBEY AN UNEXPLAINED COMMAND TO WITHDRAW FROM A
PUBLIC STREET, SEE GARNER, SUPRA, OR PUBLIC BUILDING.  WE CAN FIND
NOTHING IN THE LANGUAGE OF THE STATUTE, IN FACT, WHICH WOULD ELEVATE
THE GIVING OF CAUSE FOR MRS. REEVES' DISCOMFORT, HOWEVER WE MAY
SYMPATHIZE WITH HER, TO A CRIME AGAINST THE STATE OF LOUISIANA.  CF.
SHUTTLESWORTH V. CITY OF BIRMINGHAM, 382 U.S. 87, 101 (CONCURRING
OPINION). 

BUT THERE IS ANOTHER AND SHARPER ANSWER WHICH IS CALLED FOR.  WE ARE
HERE DEALING WITH AN ASPECT OF A BASIC CONSTITUTIONAL RIGHT - THE RIGHT
UNDER THE FIRST AND FOURTEENTH AMENDMENTS GUARANTEEING FREEDOM OF
SPEECH AND OF ASSEMBLY, AND FREEDOM TO PETITION THE GOVERNMENT FOR A
REDRESS OF GRIEVANCES.  THE CONSTITUTION OF THE STATE OF LOUISIANA
REITERATES THESE GUARANTIES.  SEE ART. I, SECS 3, 5.  AS THIS COURT HAS
REPEATEDLY STATED, (FN6) THESE RIGHTS ARE NOT CONFINED TO VERBAL
EXPRESSION.  THEY EMBRACE APPROPRIATE TYPES OF ACTION WHICH CERTAINLY
INCLUDE THE RIGHT IN A PEACEABLE AND ORDERLY MANNER TO PROTEST BY
SILENT AND REPROACHFUL PRESENCE, IN A PLACE WHERE THE PROTESTANT HAS
EVERY RIGHT TO BE, THE UNCONSTITUTIONAL SEGREGATION OF PUBLIC
FACILITIES.  (FN7) ACCORDINGLY, EVEN IF THE ACCUSED ACTION WERE WITHIN
THE SCOPE OF THE STATUTORY INSTRUMENT, WE WOULD BE REQUIRED TO ASSESS
THE CONSTITUTIONAL IMPACT OF ITS APPLICATION, AND WE WOULD HAVE TO HOLD
THAT THE STATUTE CANNOT CONSTITUTIONALLY BE APPLIED TO PUNISH
PETITIONERS' ACTIONS IN THE CIRCUMSTANCES OF THIS CASE.  SEE EDWARDS V.
SOUTH CAROLINA, SUPRA, AT 235.  THE STATUTE WAS DELIBERATELY AND
PURPOSEFULLY APPLIED SOLELY TO TERMINATE THE REASONABLE, ORDERLY, AND
LIMITED EXERCISE OF THE RIGHT TO PROTEST THE UNCONSTITUTIONAL
SEGREGATION OF A PUBLIC FACILITY.  INTERFERENCE WITH THIS RIGHT, SO
EXERCISED, BY STATE ACTION IS INTOLERABLE UNDER OUR CONSTITUTION. 
WRIGHT V. GEORGIA, SUPRA, AT 292. 

IT IS AN UNHAPPY CIRCUMSTANCE THAT THE LOCUS OF THESE EVENTS WAS A
PUBLIC LIBRARY - A PLACE DEDICATED TO QUIET, TO KNOWLEDGE, AND TO
BEAUTY.  IT IS A SAD COMMENTARY THAT THIS HALLOWED PLACE IN THE PARISH
OF EAST FELICIANA BORE THE UGLY STAMP OF RACISM.  IT IS SAD, TOO, THAT
IT WAS A PUBLIC LIBRARY WHICH, REASONABLY ENOUGH IN THE CIRCUMSTANCES,
WAS THE STAGE FOR A CONFRONTATION BETWEEN THOSE DISCRIMINATED AGAINST
AND THE REPRESENTATIVES OF THE OFFENDING PARISHES.  FORTUNATELY, THE
CIRCUMSTANCES HERE WERE SUCH THAT NO CLAIM CAN BE MADE THAT USE OF THE
LIBRARY BY OTHERS WAS DISTURBED BY THE DEMONSTRATION.  PERHAPS THE TIME
AND METHOD WERE CAREFULLY CHOSEN WITH THIS IN MIND.  WERE IT OTHERWISE,
A FACTOR NOT PRESENT IN THIS CASE WOULD HAVE TO BE CONSIDERED.  HERE,
THERE WAS NO DISTURBANCE OF OTHERS, NO DISRUPTION OF LIBRARY
ACTIVITIES, AND NO VIOLATION OF ANY LIBRARY REGULATIONS. 

A STATE OR ITS INSTRUMENTALITY MAY, OF COURSE, REGULATE THE USE OF
ITS LIBRARIES OR OTHER PUBLIC FACILITIES.  BUT IT MUST DO SO IN A
REASONABLE AND NONDISCRIMINATORY MANNER, EQUALLY APPLICABLE TO ALL AND
ADMINISTERED WITH EQUALITY TO ALL.  IT MAY NOT DO SO AS TO SOME AND NOT
AS TO ALL.  IT MAY NOT PROVIDE CERTAIN FACILITIES FOR WHITES AND OTHERS
FOR NEGROES.  AND IT MAY NOT INVOKE REGULATIONS AS TO USE - WHETHER
THEY ARE AD HOC OR GENERAL - AS A PRETEXT FOR PURSUING THOSE ENGAGED IN
LAWFUL, CONSTITUTIONALLY PROTECTED EXERCISE OF THEIR FUNDAMENTAL
RIGHTS.  CF. WRIGHT V. GEORGIA, SUPRA, AT 293. 

THE DECISION BELOW IS REVERSED. 

FN1  PARTICIPANTS IN AN ORDERLY DEMONSTRATION IN A PUBLIC PLACE ARE
NOT CHARGEABLE WITH THE DANGER, UNPROVOKED EXCEPT BY THE FACT OF THE
CONSTITUTIONALLY PROTECTED DEMONSTRATION ITSELF, THAT THEIR CRITICS
MIGHT REACT WITH DISORDER OR VIOLENCE.  SEE COX V. LOUISIANA, SUPRA, AT
551-552; WRIGHT V. GEORGIA, 373 U.S. 284, 293; CF. TERMINIELLO V.
CHICAGO, 337 U.S. 1.  COMPARE FEINER V. NEW YORK, 340 U.S. 315, WHERE
ONE SPEAKER WAS HARANGUING 75 OR 80 "RESTLESS" LISTENERS; CHAPLINSKY V.
NEW HAMPSHIRE, 315 U.S. 568 ("FIGHTING WORDS"); CF. NIEMOTKO V.
MARYLAND, 340 U.S. 268, 289 (CONCURRING OPINION OF FRANKFURTER, J.). 
SEE GENERALLY ON THE PROBLEM OF THE "HECKLER'S VETO," KALVEN, THE NEGRO
AND THE FIRST AMENDMENT, PP. 140-160 (1965). 

FN2  THE STATUTE THEN READ:  "DISTURBING THE PEACE IS THE DOING OF
ANY OF THE FOLLOWING IN SUCH A MANNER AS WOULD FORESEEABLY DISTURB OR
ALARM THE PUBLIC: 

"(1)  ENGAGING IN A FISTIC ENCOUNTER; OR: 

"(2)  USING OF ANY UNNECESSARILY LOUD, OFFENSIVE, OR INSULTING
LANGUAGE; OR: 

"(3)  APPEARING IN AN INTOXICATED CONDITION; OR: 

"(4)  ENGAGING IN ANY ACT IN A VIOLENT AND TUMULTUOUS MANNER BY ANY
THREE OR MORE PERSONS; OR: 

"(5)  HOLDING OF AN UNLAWFUL ASSEMBLY; OR: 

"(6)  INTERRUPTION OF ANY LAWFUL ASSEMBLY OF PEOPLE; OR: 

"(7)  COMMISSION OF ANY OTHER ACT IN SUCH A MANNER AS TO UNREASONABLY
DISTURB OR ALARM THE PUBLIC." 

FN3  WHILE IT WAS NOT DISPUTED THAT THE DEMONSTRATION WAS "ORDERLY
AND WELL-CONTROLLED," THE DEMONSTRATORS CLAPPED AND SANG AND PETITIONER
SPOKE IN PROTEST OF ARRESTS OF CERTAIN OTHER CIVIL RIGHTS
DEMONSTRATORS.  IN ADDITION TO THE BREACH OF THE PEACE CHARGE, COX WAS
CHARGED WITH OBSTRUCTING PUBLIC PASSAGEWAYS AND WITH DEMONSTRATING NEAR
A COURTHOUSE.  CONVICTIONS ON THESE GROUNDS WERE ALSO REVERSED.  SEE
379 U.S. 536, 559. 

FN4  THE INFERENCE FINDS SUPPORT IN TESTIMONY BOTH OF THE SHERIFF AND
OF MRS. LAURA SPEARS, A WITNESS FOR THE DEFENSE WHO WAS EMPLOYED AS THE
ASSISTANT IN CHARGE OF THE BLUE BOOKMOBILE. 

FN5  LA. REV. STAT. SEC 14:103.1 (CUM. SUPP. 1962). 

FN6  SEE, E.G., N.A.A.C.P. V. BUTTON, 371 U.S. 415, 428-431; GARNER
V. LOUISIANA, SUPRA, AT 201 (SEPARATE OPINION OF MR. JUSTICE HARLAN);
N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 460-463; STROMBERG V. CALIFORNIA,
283 U.S. 359, 369.  SEE KALVEN, OP. CIT. SUPRA, N. 1, AT 129-138. 

FN7  CF. WRIGHT V. GEORGIA, SUPRA. 

MR. JUSTICE BRENNAN, CONCURRING IN THE JUDGMENT. 

PETITIONERS WERE CHARGED WITH AND CONVICTED OF VIOLATING THE
LOUISIANA STATUTE, SEC 14:103.1, WHICH PROVIDES: 

"WHOEVER WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR UNDER
CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED THEREBY
...  CROWDS OR CONGREGATES WITH OTHERS  ...  IN OR UPON  ... A PUBLIC
STREET OR PUBLIC HIGHWAY, OR UPON A PUBLIC SIDEWALK, OR ANY OTHER
PUBLIC PLACE OR BUILDING  ...  AND WHO FAILS OR REFUSES TO DISPERSE AND
MOVE ON  ...  WHEN ORDERED SO TO DO BY ANY LAW ENFORCEMENT OFFICER OF
ANY MUNICIPALITY, OR PARISH, IN WHICH SUCH ACT OR ACTS ARE COMMITTED,
OR BY ANY LAW ENFORCEMENT OFFICER OF THE STATE OF LOUISIANA, OR ANY
OTHER AUTHORIZED PERSON  ...  SHALL BE GUILTY OF DISTURBING THE
PEACE."  LA. REV. STAT. SEC 14:103.1 (CUM. SUPP. 1962). 

IN COX V. LOUISIANA, 379 U.S. 536, 551-552, THE COURT DECLARED THIS
STATUTE AS CONSTRUED UNCONSTITUTIONAL FOR OVERBREADTH:  IT "IS
UNCONSTITUTIONAL IN THAT IT SWEEPS WITHIN ITS BROAD SCOPE ACTIVITIES
THAT ARE CONSTITUTIONALLY PROTECTED FREE SPEECH AND ASSEMBLY."  THIS
HOLDING WAS CONCURRED IN BY MY BROTHERS BLACK, 379 U.S. 559, 576-580,
HARLAN, AND WHITE, ID., AT 591.  NO LIMITING CONSTRUCTION (FN1) OR
LEGISLATIVE REVISION (FN2) HAS INTERVENED, AND NO CIRCUMSTANCE OF THIS
CASE MAKES THAT DECLARATION OF INVALIDITY LESS CONTROLLING HERE.  THE
OVERBREADTH OF THE STATUTE RECOGNIZED IN COX THEREFORE REQUIRES THE
REVERSAL OF THESE CONVICTIONS. 

THE APPELLANTS IN COX WERE CONVICTED FOR THEIR CONDUCT ON PUBLIC
STREETS AND SIDEWALKS, WHILE PETITIONERS HERE WERE CONVICTED FOR THEIR
CONDUCT IN A PUBLIC LIBRARY.  BECAUSE OF THIS IT IS CONTENDED IN
DISSENT, POST, P. 157, THAT COX AND THIS CASE INVOLVE DIFFERENT
"PHASES" OF SEC. 14:103.1 - A "PUBLIC STREET AND SIDEWALK PHASE" IN
CONTRAST TO A "PUBLIC BUILDING PHASE."  INSOFAR AS THIS DISSECTION OF
THE STATUTE IS MEANINGFUL, IT DOES NOT MAKE THE HOLDING OF COX
INAPPLICABLE; (FN3) BOTH PHASES ARE OVERBROAD AND THE OVERBREADTH OF
EACH POSES A SERIOUS THREAT TO THE EXERCISE OF CONSTITUTIONAL RIGHTS. 

FIRST.  THE OVERBREADTH OF SEC 14:103.1 DISCERNED IN COX DID NOT
INHERE IN THE TERMS "PUBLIC STREET" OR "PUBLIC SIDEWALK"; IT INHERED IN
THE PHRASE "BREACH OF THE PEACE" AS INTERPRETED BY THE SUPREME COURT OF
LOUISIANA TO MEAN "TO AGITATE, TO AROUSE FROM A STATE OF REPOSE, TO
MOLEST, TO INTERRUPT, TO HINDER, TO DISQUIET."  379 U.S., AT 551. 
NOTHING IN THE LOUISIANA COURTS' DECISIONS IN THIS CASE REJECTS THIS
INTERPRETATION OF THE PHRASE "BREACH OF THE PEACE" FOR THE PUBLIC
BUILDING PHASE OF SEC 14:103.1; NOR IS THERE ANYTHING ABOUT A PUBLIC
BUILDING THAT WOULD MAKE THIS DEFINITION OF THE PROSCRIBED CONDUCT
INAPPLICABLE. 

THE PUBLIC BUILDING PHASE OF SEC 14:103.1, ESPECIALLY WHEN READ IN
CONTEXT OF THE OTHER PHASES, IS NOT, CONTRARY TO THE DISSENT'S
SUGGESTION, POST, P. 162, RESTRICTED TO, NOR EVEN AIMED AT,
"TRESPASSERS ON GOVERNMENT PROPERTY"; LOUISIANA HAS A SEPARATE CRIMINAL
STATUTE, NOT AT ALL INVOLVED IN THIS PROSECUTION, WHICH EXPLICITLY
DEALS WITH TRESPASSING IN PUBLIC BUILDINGS.  (FN4)  MOREOVER, I REJECT
THE SUGGESTION THAT THIS BREACH OF THE PEACE STATUTE, MAKING REFUSAL TO
OBEY AN ORDER "TO DISPERSE AND MOVE ON" AN ELEMENT OF THE CRIME, IS AS
NARROW AS A SUFFICIENTLY SPECIFIC TRESPASS STATUTE EXPLICITLY CONCERNED
WITH TRESPASSING ON GOVERNMENT PROPERTY THAT ALSO MAKES REFUSAL TO OBEY
AN ORDER TO KEEP OFF OR LEAVE THE PROPERTY AN ELEMENT OF THE CRIME. 
BECAUSE THIS STATUTE SEEKS TO CURB BREACHES OF THE PEACE AND RISKS OF
SUCH BREACHES OCCURRING THROUGH CROWDING, IT APPARENTLY PERMITS A WIDE
RANGE OF PERSONS TO ISSUE THE REQUISITE ORDER, NO FORMAL OR CUSTOMARY
PROCEDURES NEED BE FOLLOWED IN ISSUING THE ORDER, AND INSTANTANEOUS AND
UNQUESTIONING COMPLIANCE WITH THE ORDER IS REQUIRED.  FOR EXAMPLE, THE
TRIAL COURT BELOW, IN APPLYING SEC 14:103.1, ASSUMED THAT AS A MATTER
OF STATE LAW ANY EMPLOYEE OF THE LIBRARY WOULD HAVE THE AUTHORITY TO
ISSUE THE ORDER "TO DISPERSE AND MOVE ON" SIMPLY AS THE OCCASION AROSE
AND THAT PETITIONERS WERE EXPECTED TO IMMEDIATELY COMPLY WITH THE ORDER
EVEN THOUGH THEY MIGHT HAVE REASONABLY THOUGHT THEY WERE BEING EJECTED
SIMPLY TO PRESERVE THE SEGREGATED CHARACTER OF THE LIBRARY.  CF. WRIGHT
V. GEORGIA, 373 U.S. 284, 291-292. 

SECOND.  THE DANGER POSED BY THE LOUISIANA COURTS' DEFINITION OF
"BREACH OF THE PEACE" - THAT IT MIGHT SWEEP WITHIN ITS BROAD SCOPE
ACTIVITIES THAT ARE CONSTITUTIONALLY PROTECTED - IS NO LESS PRESENT
WHEN READ IN CONJUNCTION WITH "PUBLIC BUILDING" THAN WHEN READ WITH
"PUBLIC STREET" AND "PUBLIC SIDEWALK."  THE CONSTITUTIONAL PROTECTION
FOR CONDUCT IN A PUBLIC BUILDING UNDERTAKEN TO DESEGREGATE GOVERNMENTAL
SERVICES PROVIDED THEREIN DERIVES FROM BOTH THE FIRST AMENDMENT
GUARANTEES OF FREEDOM OF SPEECH, PETITION AND ASSEMBLY, (FN5) AND THE
EQUAL PROTECTION CLAUSE'S PROHIBITION AGAINST RACIAL SEGREGATION OF
GOVERNMENTAL SERVICES AND FACILITIES.  OVERBREADTH IN THE PUBLIC
BUILDING PHASE MIGHT INHIBIT THE EXERCISE OF THESE CONSTITUTIONAL
RIGHTS BY THREATENING PUNISHMENT OF THE INITIAL EFFORTS TO SECURE SUCH
DESEGREGATION.  FOR EXAMPLE, THE PUBLIC BUILDING PHASE OF SEC 14:103.1
MIGHT BE READ AS REACHING THE CONDUCT OF TWO NEGROES WHO DID NOTHING
MORE THAN ENTER A LIBRARY RESTRICTED TO WHITES, REQUEST A BOOK AND
REFUSE TO LEAVE WHEN ORDERED TO DO SO BEFORE SERVICE WAS RENDERED.  THE
CONDUCT OF THE TWO NEGROES WOULD BE AS CONSTITUTIONALLY PROTECTED AS
THE CONDUCT OF THE NEGRO WHO REFUSED TO LEAVE THE WHITE SECTION OF A
SEGREGATED COURTROOM, JOHNSON V. VIRGINIA, 373 U.S. 61, AND YET THEIR
CONDUCT WOULD BE PUNISHABLE UNDER SEC 14:103.1 BECAUSE THEIR PURPOSE
COULD BE DEEMED "TO AGITATE, TO AROUSE FROM A STATE OF REPOSE, TO
MOLEST, TO INTERRUPT, TO HINDER, TO DISQUIET." 

IN LIGHT OF THESE POSSIBLE CLEARLY UNCONSTITUTIONAL APPLICATIONS OF
THE STATUTE, WE NEED NOT DECIDE WHETHER PETITIONERS' ACTUAL CONDUCT IS
CONSTITUTIONALLY PROTECTED; FOR "IN APPRAISING A STATUTE'S INHIBITORY
EFFECT UPON SUCH RIGHTS, THIS COURT HAS NOT HESITATED TO TAKE INTO
ACCOUNT POSSIBLE APPLICATIONS OF THE STATUTE IN OTHER FACTUAL CONTEXTS
BESIDES THAT AT BAR."  N.A.A.C.P. V. BUTTON, 371 U.S. 415, 432.  IT
SUFFICES THAT PETITIONERS' CONDUCT WAS ARGUABLY CONSTITUTIONALLY
PROTECTED AND WAS "NOT THE SORT OF 'HARD-CORE' CONDUCT THAT WOULD
OBVIOUSLY BE PROHIBITED UNDER ANY CONSTRUCTION" (FN6) OF SEC 14:103.1. 
IT WAS ENGAGED IN TO ACHIEVE DESEGREGATION OF THE LIBRARY THROUGH A
REQUEST FOR SERVICE AND A PROTEST, EXPRESSED BY PETITIONERS' CONTINUED
PRESENCE.  PETITIONERS WERE ORDERLY AND QUIET.  THEIR CONTINUED
PRESENCE, FOR A RELATIVELY SHORT PERIOD OF TIME, DID NOT INTERFERE WITH
THE FUNCTIONING OF THE LIBRARY.  THEIR PRESENCE MIGHT HAVE EMBARRASSED
AND UNNERVED THE LIBRARIANS, WHO HAD IN THE PAST FAITHFULLY OBSERVED
THE POLICY OF SEGREGATION; BUT SUCH "VAGUE DISQUIETUDES" (FN7) DO NOT
TAKE PETITIONERS' CONDUCT OUTSIDE THE APPROPRIATE LIMITS.  THE SHERIFF
GAVE PETITIONERS NO REASON FOR THE ORDER TO LEAVE, (FN8) AND THUS
PETITIONERS MIGHT HAVE REASONABLY BELIEVED THAT THEY WERE BEING EJECTED
ONLY BECAUSE THEY WERE NEGROES SEEKING TO EXERCISE THEIR CONSTITUTIONAL
RIGHTS, (FN9) AS MY BROTHER BLACK OBSERVED IN FEINER V. NEW YORK, 340
U.S. 315, 327, "AT LEAST WHERE TIME ALLOWS, COURTESY AND EXPLANATION OF
COMMANDS ARE BASIC ELEMENTS OF GOOD OFFICIAL CONDUCT IN A DEMOCRATIC
SOCIETY." 

SINCE THE OVERBREADTH OF SEC 14:103.1 AS CONSTRUED CLEARLY REQUIRES
THE REVERSAL OF THESE CONVICTIONS, (FN10) IT IS WHOLLY UNNECESSARY TO
REACH, LET ALONE REST REVERSAL, AS THE PREVAILING OPINION SEEMS TO DO,
ON THE PROPOSITION THAT EVEN A NARROWLY DRAWN "STATUTE CANNOT
CONSTITUTIONALLY BE APPLIED TO PUNISH PETITIONERS' ACTIONS IN THE
CIRCUMSTANCES OF THIS CASE." 

FN1  SEE SHUTTLESWORTH V. CITY OF BIRMINGHAM, 382 U.S. 87, 99
(CONCURRING OPINION); DOMBROWSKI V. PFISTER, 380 U.S. 479, 491, N. 7. 

FN2  COMPARE JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495, AND
COMMERCIAL PICTURES CORP. V. REGENTS, 346 U.S. 587, WITH KINGSLEY INT'L
PICTURES CORP. V. REGENTS, 360 U.S. 684. 

FN3  IN DECLARING THE STATUTE UNCONSTITUTIONAL FOR OVERBREADTH THE
COURT IN COX RELIED HEAVILY ON TERMINIELLO V. CHICAGO, 337 U.S. 1, A
CASE INVOLVING THE APPLICATION OF A BREACH OF THE PEACE ORDINANCE TO AN
INDIVIDUAL PURPORTING TO EXERCISE FIRST AMENDMENT RIGHTS IN AN
AUDITORIUM, NOT ON THE STREETS OR SIDEWALKS. 

FN4  LA. ACTS 1963, NO. 91, AMENDING AND RE-ENACTING LA. REV. STAT.
SEC 14:63.3 (CUM. SUPP. 1962).  THE DISSENT REFERS TO SUBDIVISION (4)
OF SEC 14:103.1 TO SUPPORT ITS VIEW THAT SUBDIVISION (1), THE BASIS FOR
THE CHARGES AND THE CONVICTIONS, "IS TO ALL INTENTS AND PURPOSES AIMED
AT TRESPASSERS ON GOVERNMENT PROPERTY."  POST, P. 162.  HOWEVER,
SUBDIVISION (4) IS ALSO MODIFIED BY THE INTRODUCTORY CLAUSE "WHOEVER
WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR UNDER CIRCUMSTANCES
SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED THEREBY"; AND THUS TO
ESTABLISH A VIOLATION OF THAT SUBDIVISION MORE THAN THE REFUSAL TO
LEAVE THE "PREMISES OF ANOTHER" AFTER AN ORDER TO DO SO WOULD HAVE TO
BE PROVED. 

FN5  CF. N.A.A.C.P. V. BUTTON, 371 U.S. 415, 428-431; GARNER V.
LOUISIANA, 368 U.S. 157, 201-202 (OPINION OF MR. JUSTICE HARLAN): 

"THERE WAS MORE TO THE CONDUCT OF THOSE PETITIONERS THAN A BARE
DESIRE TO REMAIN AT THE 'WHITE' LUNCH COUNTER AND THEIR REFUSAL OF A
POLICE REQUEST TO MOVE FROM THE COUNTER.  WE WOULD SURELY HAVE TO BE
BLIND NOT TO RECOGNIZE THAT PETITIONERS WERE SITTING AT THESE COUNTERS,
WHERE THEY KNEW THEY WOULD NOT BE SERVED, IN ORDER TO DEMONSTRATE THAT
THEIR RACE WAS BEING SEGREGATED IN DINING FACILITIES IN THIS PART OF
THE COUNTRY. 

"SUCH A DEMONSTRATION, IN THE CIRCUMSTANCES OF THESE TWO CASES, IS AS
MUCH A PART OF THE 'FREE TRADE IN IDEAS,' ABRAMS V. UNITED STATES, 250
U.S. 616, 630 (HOLMES, J., DISSENTING), AS IS VERBAL EXPRESSION, MORE
COMMONLY THOUGHT OF AS 'SPEECH.'  IT, LIKE SPEECH, APPEALS TO GOOD
SENSE AND TO 'THE POWER OF REASON AS APPLIED THROUGH PUBLIC
DISCUSSION,' WHITNEY V. CALIFORNIA, 274 U.S. 357, 375 (BRANDEIS, J.,
CONCURRING), JUST AS MUCH AS, IF NOT MORE THAN, A PUBLIC ORATION
DELIVERED FROM A SOAPBOX AT A STREET CORNER.  THIS COURT HAS NEVER
LIMITED THE RIGHT TO SPEAK, A PROTECTED 'LIBERTY' UNDER THE FOURTEENTH
AMENDMENT, GITLOW V. NEW YORK, 268 U.S. 652, 666, TO MERE VERBAL
EXPRESSION.  STROMBERG V. CALIFORNIA, 283 U.S. 359; THORNHILL V.
ALABAMA, 310 U.S. 88; WEST VIRGINIA STATE BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624, 633-634.  SEE ALSO N.A.A.C.P. V. ALABAMA, 357
U.S. 449, 460.  IF THE ACT OF DISPLAYING A RED FLAG AS A SYMBOL OF
OPPOSITION TO ORGANIZED GOVERNMENT IS A LIBERTY ENCOMPASSED WITHIN FREE
SPEECH AS PROTECTED BY THE FOURTEENTH AMENDMENT, STROMBERG V.
CALIFORNIA, SUPRA, THE ACT OF SITTING AT A PRIVATELY OWNED LUNCH
COUNTER WITH THE CONSENT OF THE OWNER, AS A DEMONSTRATION OF OPPOSITION
TO ENFORCED SEGREGATION, IS SURELY WITHIN THE SAME RANGE OF
PROTECTIONS." 

PUBLIC BUILDINGS OFTEN PROVIDE A FORUM FOR MORE TRADITIONAL FORMS OF
FIRST AMENDMENT ACTIVITY, SUCH AS VERBAL EXPRESSION.  SEE, E.G., THOMAS
V. COLLINS, 323 U.S. 516 (CITY HALL); TERMINIELLO V. CHICAGO, 337 U.S.
1 (AUDITORIUM OPEN TO PUBLIC IN PRIVATELY OWNED BUILDING). 

FN6  DOMBROWSKI V. PFISTER, 380 U.S., AT 491-492. 

FN7  WATSON V. CITY OF MEMPHIS, 373 U.S. 526, 535-536.  SEE GENERALLY
BUCHANAN V. WARLEY, 245 U.S. 60, 81; COOPER V. AARON, 358 U.S. 1, 16;
TAYLOR V. LOUISIANA, 370 U.S. 154, 156; WRIGHT V. GEORGIA, 373 U.S., AT
293; COX V. LOUISIANA, 379 U.S., AT 551. 

FN8  ON CROSS-EXAMINATION THE SHERIFF TESTIFIED AS FOLLOWS: 

"Q.  SHERIFF, DID YOU ARREST THESE PEOPLE, THESE DEFENDANTS, BECAUSE
YOU CONSIDERED THEIR ACTION GOING INTO THE LIBRARY AS A DEMONSTRATION? 

"A.  I ARRESTED THEM BECAUSE THE OCCUPANTS OF THE BUILDING HAD ASKED
THEM TO LEAVE, AND SO HAD I; IT WAS A PUBLIC BUILDING AND THEY REFUSED
TO LEAVE. 

     *         *         *         *         * 

"Q.  WHAT DID YOU TELL THEM WHEN YOU WENT IN, SHERIFF, DID YOU HAVE
ANY CONVERSATIONS WITH THESE PEOPLE? 

"A.  NOT WITH THEM, I TALKED TO MRS. PERKINS, AND SHE TOLD ME THAT
SHE HAD TAKEN THEIR APPLICATION AND HAD ASKED THEM TO LEAVE, AND THEY
WOULDN'T, AND I ASKED THEM TO LEAVE.  HENRY BROWN TOLD ME IT WAS A
PUBLIC LIBRARY, THE REST OF THEM DIDN'T SAY ANYTHING. 

"Q.  DID BROWN MENTION ANYTHING TO YOU ABOUT WANTING A BOOK ON THE
CONSTITUTION OF THE UNITED STATES? 

"A.  HE DID NOT. 

"Q.  AFTER BROWN TOLD YOU THAT IT WAS A PUBLIC LIBRARY, WHAT DID YOU
SAY THEN? 

"A.  I DON'T KNOW OF ANYTHING THAT I SAID.  I WAS ASSURED THAT MRS.
PERKINS HAD ASKED THEM TO LEAVE SINCE THEY DIDN'T HAVE THE BOOK THEY
WANTED. 

"Q.  DID YOU, AT THIS POINT, ASK THEM TO LEAVE? 

"A.  I DID. 

"Q.  WHEN YOU: 

"A.  - AND I ALSO TOLD THEM THAT THEY HAD THE CHOICE OF LEAVING, OR
BE ARRESTED FOR NOT LEAVING A PUBLIC BUILDING WHEN ASKED TO DO SO BY AN
OFFICER. 

"Q.  WHEN YOU GOT THERE, SHERIFF, WAS ANYBODY MAKING ANY NOISE? 

"A.  NO NOISE. 

     *         *       *         *         * 

"Q.  PRIOR TO YOUR ASKING THESE DEFENDANTS TO LEAVE, DID YOU ASK EACH
OF THEM, ALL OF THEM, WHETHER OR NOT THEY INTENDED TO USE THE REFERENCE
BOOKS AT THE LIBRARY? 

"A.  I DIDN'T ASK THEM WHAT THEY INTENDED TO DO, AND THEY DIDN'T
STATE AT THAT TIME WHAT THEY WERE DOING THERE." 

FN9  SEE WRIGHT V. GEORGIA, 373 U.S., AT 291-292:  "OBVIOUSLY  ...
ONE CANNOT BE PUNISHED FOR FAILING TO OBEY THE COMMAND OF AN OFFICER IF
THAT COMMAND IS ITSELF VIOLATIVE OF THE CONSTITUTION." 

FN10  THIS GROUND OF REVERSAL MAKES IT UNNECESSARY TO DECIDE WHETHER
SUBDIVISION (1) OF SEC 14:103.1 EMBODIES AN INVIDIOUS DISCRIMINATION
BECAUSE IT CONTAINS THE FOLLOWING EXEMPTION: "NOTHING HEREIN CONTAINED
SHALL APPLY TO A BONA FIDE LEGITIMATE LABOR ORGANIZATION OR TO ANY OF
ITS LEGAL ACTIVITIES SUCH AS PICKETING, LAWFUL ASSEMBLY OR CONCERTED
ACTIVITY IN THE INTEREST OF ITS MEMBERS FOR THE PURPOSE OF
ACCOMPLISHING OR SECURING MORE FAVORABLE WAGE STANDARDS, HOURS OF
EMPLOYMENT AND WORKING CONDITIONS  ...  ."  MY BROTHER BLACK IN HIS
OPINION IN COX V. LOUISIANA, 379 U.S., AT 581, FOUND THE OBSTRUCTING
PUBLIC PASSAGES STATUTE (LA. REV. STAT. SEC 14:100.1 (CUM. SUPP. 1962))
TO EMBODY "AN INVIDIOUS DISCRIMINATION FORBIDDEN BY THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT" BECAUSE IT CONTAINED THE
SAME EXEMPTION FROM ITS COVERAGE FOR LABOR UNION ACTIVITIES. 

MR. JUSTICE WHITE, CONCURRING IN THE RESULT. 

WERE IT CLEAR FROM THIS RECORD THAT LINGERING IN A PUBLIC LIBRARY FOR
10 MINUTES AFTER ORDERING A WANTED BOOK CONTRAVENED SOME EXPLICIT
STATUTE, ORDINANCE, OR LIBRARY REGULATION OF GENERAL APPLICATION, OR
EVEN IF IT WERE REASONABLY CLEAR THAT A 10-MINUTE INTERLUDE BETWEEN
RECEIVING SERVICE AND DEPARTURE EXCEEDED WHAT IS GENERALLY CONTEMPLATED
AS A NORMAL USE OF A PUBLIC LIBRARY, I WOULD HAVE DIFFICULTY JOINING IN
A REVERSAL OF THIS CASE, FOR IN EITHER OF THESE EVENTS, I WOULD
CONSIDER A REFUSAL TO LEAVE THE LIBRARY AND AN INSISTENCE UPON
VIOLATING A GENERALLY APPLICABLE CONDITION CONCERNING THE USE OF THE
LIBRARY EVIDENCE OF AN INTENT TO BREACH THE PEACE CONSTITUTIONALLY
SUFFICIENT TO SUSTAIN A CONVICTION.  NOR WOULD I DEEM THE FIRST
AMENDMENT TO FORBID A MUNICIPAL REGULATION LIMITING LOAFING IN LIBRARY
READING ROOMS. 

BUT NOTHING OF THE KIND COMES THROUGH TO ME IN THIS RECORD.  THERE IS
NO SUCH ORDINANCE OR REGULATION AND IT CAN HARDLY BE SAID THAT THE
BRIEF SOJOURN IN THIS PARISH LIBRARY DEPARTED SO FAR FROM THE COMMON
PRACTICE OF LIBRARY USERS.  THE PETITIONERS WERE THERE BUT A VERY BRIEF
PERIOD BEFORE BEING ASKED TO LEAVE, THEY WERE QUIET AND ORDERLY, THEY
INTERFERED WITH NO OTHER LIBRARY USERS AND FOR ALL THIS RECORD REVEALS
THEY MIGHT HAVE BEEN CONSIDERING AMONG THEMSELVES WHAT TO DO WITH THE
REST OF THEIR DAY.  I THINK THAT THE PETITIONERS WERE ENTITLED TO BE
WHERE THEY WERE FOR THE TIME THAT THEY REMAINED, AND IT IS DIFFICULT TO
BELIEVE THAT IF THIS GROUP HAD BEEN WHITE ITS MEMBERS WOULD HAVE BEEN
ASKED TO LEAVE ON SUCH SHORT NOTICE, MUCH LESS ASKED TO LEAVE BY THE
SHERIFF AND ARRESTED, RATHER THAN MERELY ESCORTED FROM THE BUILDING,
WHEN RELUCTANCE TO LEAVE WAS DEMONSTRATED.  THAT THE LIBRARY WAS A
SEGREGATED INSTITUTION AND WAS NOT IN THE HABIT OF ALLOWING NEGROES IN
THE BUILDING ONLY UNDERLINES THIS SITUATION.  IN MY VIEW, THE BEHAVIOR
OF THESE PETITIONERS AND THEIR USE OF THE LIBRARY BUILDING, EVEN THOUGH
IT WAS FOR THE PURPOSES OF A DEMONSTRATION, DID NOT DEPART
SIGNIFICANTLY FROM WHAT NORMAL LIBRARY USE WOULD CONTEMPLATE. 

THE CONCLUSION THAT PETITIONERS WERE MAKING ONLY A NORMAL AND
AUTHORIZED USE OF THIS PUBLIC LIBRARY REQUIRES THE REVERSAL OF THEIR
CONVICTIONS.  PETITIONERS' ENTERING THE LIBRARY AND REFUSING TO FORGO A
USE OF THE LIBRARY NORMALLY PERMITTED MEMBERS OF THE PUBLIC IS NO
EVIDENCE, IN THE CIRCUMSTANCES OF THIS CASE, OF ANY INTENT TO BREACH
THE PEACE.  MOREOVER, IF THE PETITIONERS WERE MAKING A USE OF THE
LIBRARY NORMALLY PERMITTED WHITES, WHY WERE THEY ASKED TO LEAVE THE
LIBRARY?  THEY WERE QUIET, ORDERLY, AND EXHIBITED NO THREATENING OR
PROVOCATIVE BEHAVIOR.  THE LIBRARY HAD BEEN A SEGREGATED INSTITUTION,
HAS BEEN CLOSED SINCE THE INCIDENT INVOLVED IN THIS CASE, AND THE
PETITIONERS WERE ADVISED THEY COULD PICK UP THE DESIRED BOOK AT THE
BLUE BOOKMOBILE.  THE STATE ARRESTED PETITIONERS BECAUSE THEY REFUSED
TO LEAVE THE LIBRARY BUT OFFERS NO CONVINCING EXPLANATION FOR WHY THEY
WERE ASKED TO LEAVE.  ON THIS RECORD, IT IS DIFFICULT TO AVOID THE
CONCLUSION THAT PETITIONERS WERE ASKED TO LEAVE THE LIBRARY BECAUSE
THEY WERE NEGROES.  IF THEY WERE, THEIR CONVICTIONS DENY THEM EQUAL
PROTECTION OF THE LAWS. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN,
AND MR. JUSTICE STEWART JOIN, DISSENTING. 

I DO NOT BELIEVE THAT ANY PROVISION OF THE UNITED STATES CONSTITUTION
FORBIDS ANY ONE OF THE 50 STATES OF THE UNION, INCLUDING LOUISIANA, TO
MAKE IT UNLAWFUL TO STAGE "SIT-INS" OR "STAND-UPS" IN THEIR PUBLIC
LIBRARIES FOR THE PURPOSE OF ADVERTISING OBJECTIONS TO THE STATE'S
PUBLIC POLICIES.  THAT, HOWEVER, IS PRECISELY WHAT THE COURT OR AT
LEAST A MAJORITY OF THE COURT MAJORITY (FN1) HERE HOLDS THAT ALL THE
STATES ARE FORBIDDEN TO DO BY OUR CONSTITUTION.  I DISSENT.  THE THREE
OPINIONS WRITTEN FOR THE MAJORITY OF FIVE WHO REVERSE THESE CONVICTIONS
MAKE IT NECESSARY FOR ME TO STATE THE RELEVANT FACTS, CIRCUMSTANCES,
AND ISSUES IN THIS CASE AS I VIEW THEM. 

REPRESENTATIVES OF THE CONGRESS OF RACIAL EQUALITY (CORE) CLAIMED
THAT NEGROES HAD BEEN "LOCKED OUT" OF LIBRARIES OPERATED JOINTLY BY
THREE LOUISIANA PARISHES.  A "DEMONSTRATION WAS PLANNED" BY THE
ORGANIZATION "TO INTEGRATE THE LIBRARY," AND ACCORDINGLY THESE FIVE
PETITIONERS, ALL NEGROES, WENT TO THE AUDUBON REGIONAL LIBRARY LOCATED
AT CLINTON, LOUISIANA, ON A SATURDAY MORNING ABOUT 11:30 "TO SIT-IN AT
THE LIBRARY."  THE COUNTY SHERIFF, WHOSE OFFICE WAS IN THE COURTHOUSE
WITHIN SIGHT OF THE LIBRARY BUILDING, HAD RECEIVED INFORMATION THAT
"THEY (REFERRING TO CORE) WERE GOING TO SIT-IN, OR THAT SOMETHING WAS
GOING TO TAKE PLACE AT THE LIBRARY THAT MORNING," AND NOTICED THE
PETITIONERS WHEN THEY WENT BY HIS OFFICE ON THEIR WAY TO THE LIBRARY. 
UPON ARRIVAL AT THE LIBRARY PETITIONERS WERE MET INSIDE THE BUILDING BY
MRS. REEVES, WHO WAS THE ASSISTANT LIBRARIAN.  SHE COURTEOUSLY ASKED
THEM IF SHE COULD HELP THEM IN ANY WAY.  ONE OF THE GROUP, PETITIONER
BROWN, HANDED HER A SLIP OF PAPER ON WHICH WAS WRITTEN THE TITLE OF A
BOOK WHICH HE SAID HE WANTED.  MRS. REEVES WENT TO HER SHELVES AND HER
CATALOGUES, AND AFTER MAKING A SEARCH, CAME BACK AND TOLD MR. BROWN
THAT THE LIBRARY DID NOT HAVE THE BOOK, BUT THAT SHE COULD REQUEST IT
FROM THE STATE LIBRARY AND PROBABLY GET IT FOR HIM.  SHE TOLD HIM SHE
WOULD DO THIS.  MR. BROWN THEN SAT DOWN IN THE ONLY CHAIR IN THE
LIBRARY ROOM OTHER THAN THE CHAIR AT MRS. REEVES' DESK, AND THE OTHER
FOUR PETITIONERS STOOD AROUND HIM.  WHEN PETITIONERS DID NOT LEAVE,
MRS. REEVES TOLD THE GROUP AGAIN THAT SHE WOULD SEND FOR THE BOOK, AND
WHEN MR. BROWN CONTINUED TO SIT AND THE OTHERS CONTINUED TO STAND, SHE
ASKED THEM TO LEAVE.  THEY DID NOT LEAVE, SO MRS. REEVES THEN CALLED
MRS. PERKINS, THE REGIONAL LIBRARIAN, AND TOLD MRS. PERKINS ABOUT THE
SITUATION.  MRS. PERKINS WENT TO MR. BROWN AND TOLD HIM SHE DID NOT
KNOW WHETHER HE UNDERSTOOD THAT A REQUEST FOR THE BOOK HE HAD ASKED FOR
WOULD BE SENT TO THE STATE LIBRARY.  ALONG ABOUT THAT TIME MR. BROWN
SAID TO MRS. PERKINS, "WHAT ABOUT THE CONSTITUTION?"  BUT DID NOT
REQUEST THAT ANY COPY OF THE CONSTITUTION BE GIVEN TO HIM.  MRS.
PERKINS THEN REPEATED THE REQUEST OF MRS. REEVES THAT PETITIONERS LEAVE
THE LIBRARY TELLING THEM "THAT THE ONE WHO SEEMED TO WANT SOMETHING HAD
BEEN SERVED."  ABOUT 10 OR 15 MINUTES AFTER THE PETITIONERS CAME TO THE
LIBRARY, WHEN ACCORDING TO MRS. PERKINS' TESTIMONY SHE WAS JUST ABOUT
TO CALL THE SHERIFF OVER THE PHONE, THE SHERIFF CAME INTO THE LIBRARY. 
MRS. PERKINS EXPLAINED TO HIM THAT MRS. REEVES HAD TAKEN PETITIONERS'
APPLICATION FOR THE BOOK THEY WANTED, THAT THE BOOK WAS NOT AVAILABLE,
THAT SHE AND MRS. REEVES HAD BOTH REQUESTED THE PETITIONERS TO LEAVE,
AND THAT THEY WOULD NOT DO SO.  AFTER LEARNING THESE FACTS, THE SHERIFF
ALSO ASKED PETITIONERS TO LEAVE THE LIBRARY BUILDING AND STATED THAT HE
WOULD HAVE TO ARREST THEM IF THEY DID NOT.  THE PETITIONERS REFUSED TO
LEAVE, AND SPEAKING FOR THE GROUP PETITIONER BROWN TOLD THE SHERIFF
"THAT HE WAS NOT GOING TO LEAVE THE LIBRARY."  THEREUPON THE SHERIFF
IMMEDIATELY ARRESTED ALL OF THEM.  PETITIONERS, WHILE IN THE LIBRARY,
NEVER TALKED IN UNUSUALLY LOUD VOICES AND USED NO BAD LANGUAGE.  BEYOND
MR. BROWN'S REQUEST FOR THE BOOK WHICH THE LIBRARY DID NOT HAVE, NONE
OF THE PETITIONERS AT ANY TIME PRIOR TO HIS ARREST REQUESTED ANY
FURTHER SERVICE OF EITHER OF THE LIBRARIANS, NOR DID ANY PETITIONER IN
ANY OTHER WAY SEEK TO READ IN THE LIBRARY OR OTHERWISE USE ANY OF THE
LIBRARY'S FACILITIES EXCEPT FOR SITTING AND STANDING PURPOSES. 

THE CLINTON BRANCH OF THE AUDUBON REGIONAL LIBRARY IS NOT A LARGE
ONE.  IT APPEARS TO BE USED ALMOST ENTIRELY AS A CIRCULATING AND NOT A
READING LIBRARY.  THE DUTY OF MRS. REEVES, ASSISTANT LIBRARIAN,
ACCORDING TO HER TESTIMONY WHICH WAS NOT DISPUTED, WAS "TO ASSIST
PEOPLE WHO COME INTO THE LIBRARY TO SELECT THEIR BOOKS; CHECK OUT THE
BOOKS TO THEM; TO KEEP THE SHELVES IN ORDER, AND TO KEEP A RECORD OF
THE CIRCULATION OF THE DAY."  IN THE LIBRARY'S "LOBBY," WHERE THE
EVENTS OF THIS CASE TOOK PLACE, THERE WERE BOOK SHELVES AND ONE TABLE
ON EACH SIDE; ALSO IN THE ROOM WERE A DESK AND CHAIR FOR THE LIBRARIAN,
AND ONE OTHER CHAIR.  THE TWO TABLES WERE USED MAINLY FOR BOOK DISPLAY
AND MAGAZINES.  IT WAS NOT AGAINST THE POLICY OF THE LIBRARY TO ALLOW
CITIZENS WITH LIBRARY REGISTRATION CARDS TO READ IF THEY CARED TO.  BUT
ACCORDING TO MRS. REEVES' TESTIMONY, "VERY FEW PEOPLE READ; IF A BOOK
IS THERE AND THEY WANT IT, THEY TAKE IT AND GO."  MRS. PERKINS
TESTIFIED THAT "WE DO NOT MAINTAIN A READING-ROOM, AS SUCH, WE DO NOT
HAVE THE SPACE FOR IT."  MRS. PERKINS LATER REFERRED TO THE "LOBBY" AS
THE "ADULT READING-ROOM, THE ADULT SERVICE-ROOM." 

THE PARTICULAR PART OF THE LOUISIANA STATUTE, (FN2) UNDER WHICH
PETITIONERS WERE CONVICTED, CONTRARY TO IMPLICATIONS IN THE OTHER
OPINIONS, HAS NEVER BEEN BEFORE THIS COURT PREVIOUS TO THIS TIME.  IT
PROVIDES AS FOLLOWS: 

"WHOEVER WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR UNDER
CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED THEREBY
...  CONGREGATES WITH OTHERS  ...  IN ANY  ...  PUBLIC  ... BUILDING
...  , AND WHO FAILS OR REFUSES TO  ...  MOVE ON, WHEN ORDERED SO TO DO
BY ANY LAW ENFORCEMENT OFFICER OF ANY MUNICIPALITY  ...  OR ANY OTHER
AUTHORIZED PERSON  ...  SHALL BE GUILTY OF DISTURBING THE PEACE." 

THE INFORMATION AGAINST THESE PETITIONERS CHARGED, SUBSTANTIALLY IN
THE LANGUAGE OF THE STATUTE, THAT PETITIONERS FAILED AND REFUSED TO
LEAVE THE LIBRARY WHEN ORDERED TO DO SO BY MRS PERKINS WHO WAS IN
LAWFUL CHARGE OF THE LIBRARY AND ALSO FAILED TO LEAVE THE PREMISES WHEN
ORDERED TO DO SO BY THE SHERIFF. 

BECAUSE I THINK THAT THE CRUCIAL ISSUES TO BE DECIDED HERE ARE MUCH
NARROWER AND FAR LESS COMPLICATED THAN THE PREVAILING OPINION IMPLIES,
I FIND IT NECESSARY FIRST TO POINT OUT THAT SEVERAL MATTERS DISCUSSED
IN THAT OPINION ARE, IN MY JUDGMENT, EITHER IRRELEVANT, OR DO NOT
JUSTIFY THE INFERENCES DRAWN FROM THEM. 

          I. 

IN CONCLUDING TO REVERSE THESE CONVICTIONS THE PREVAILING OPINION
RELIES ALMOST ENTIRELY ON THREE PRIOR BREACH OF THE PEACE CASES WHICH
HAVE COME TO THIS COURT FROM THE STATE OF LOUISIANA, AND EDWARDS V.
SOUTH CAROLINA, 372 U.S. 229.  I THINK THAT NONE OF THESE FOUR CASES
HAS ANY APPRECIABLE BEARING ON WHAT THE COURT SHOULD HOLD IN THIS
CASE. 

(A)  THE FIRST OF THESE CASES IS GARNER V. LOUISIANA, 368 U.S. 157,
DECIDED IN DECEMBER 1961.  THAT CASE, INVOLVING "SIT-IN" DEMONSTRATIONS
AT SEVERAL LUNCH COUNTERS, WAS DECIDED UNDER AN OLD LOUISIANA BREACH OF
THE PEACE STATUTE.  THE SECTION INVOLVED HERE WAS ADDED TO THE OLD LAW
AFTER THE EVENTS DESCRIBED IN THAT CASE TOOK PLACE, BUT BEFORE THE
COURT'S OPINION.  THE OLD LAW CONSIDERED IN GARNER DID NOT CONTAIN ANY
PHRASE SIMILAR TO THE ONE UNDER CONSIDERATION HERE WHICH MAKES IT AN
OFFENSE TO DISTURB THE PEACE BY CONGREGATING IN A PUBLIC BUILDING OVER
THE PROTEST OF A PERSON RIGHTFULLY IN CHARGE OF THE BUILDING. 
MOREOVER, THE MAJORITY OF THE COURT IN GARNER, IN CONSTRUING THE OLD
LAW, NOTED THE PRESENCE OF THE NEW SECTION, AND EXPRESSLY CONTRASTED
ITS REACH WITH THAT OF THE OLDER STATUTE.  368 U.S., AT 168-169.  THERE
ARE OTHER SIGNIFICANT DIFFERENCES BETWEEN GARNER AND THIS CASE, BUT THE
FACT THAT GARNER INVOLVED AN ALMOST ENTIRELY DIFFERENT STATUTE, WHICH
WAS EXPRESSLY DISTINGUISHED FROM THE PRESENT ONE BY THE COURT'S
OPINION, MAKES IT HARD FOR ME TO SEE HOW THE COURT'S GARNER HOLDING CAN
PROVIDE ANY MEANINGFUL SUPPORT FOR THE REVERSAL OF THESE CONVICTIONS. 

(B)  THE SECOND LOUISIANA BREACH OF THE PEACE CASE UPON WHICH THE
PREVAILING OPINION RELIES FOR REVERSAL IS TAYLOR V. LOUISIANA, 370 U.S.
154.  THAT CASE AS DESCRIBED TODAY IN THE PREVAILING OPINION "CONCERNED
A SIT-IN BY NEGROES IN A WAITING ROOM AT A BUS DEPOT, RESERVED 'FOR
WHITES ONLY.'  "  IN TAYLOR, THE COURT IN A SHORT PER CURIAM OPINION
HELD MERELY THAT THE BREACH OF THE PEACE CONVICTIONS COULD NOT BE
SUPPORTED WHERE "THE ONLY EVIDENCE TO SUPPORT THE CHARGE WAS THAT
PETITIONERS WERE VIOLATING A CUSTOM THAT SEGREGATED PEOPLE IN WAITING
ROOMS ACCORDING TO THEIR RACE" CONTRARY TO FEDERAL LAW.  370 U.S., AT
156.  THERE WAS NO INDICATION IN THAT CASE THAT PERSONS, HAVING NO
BUSINESS WHATEVER IN A BUS DEPOT EXCEPT TO STAGE A PUBLIC PROTEST
AGAINST SOME STATE POLICY, HAVE A CONSTITUTIONAL RIGHT TO OCCUPY THE
DEPOT'S SPACE AFTER HAVING BEEN REQUESTED BY COMPETENT AUTHORITIES TO
LEAVE. 

(C)  THE CASE RELIED ON MOST HEAVILY BY THE PREVAILING OPINION AND MY
BROTHER BRENNAN IS COX V. LOUISIANA, 379 U.S. 536.  THAT CASE, UNLIKE
THIS ONE, INVOLVED PICKETING AND PATROLLING IN THE STREETS, AND
CORRESPONDINGLY THAT PART OF THE LOUISIANA BREACH OF THE PEACE STATUTE
WHICH PROHIBITED CERTAIN KINDS OF STREET ACTIVITY.  THE LANGUAGE OF THE
PHASE OF THE STATUTE UNDER CONSIDERATION HERE, RELATING TO CONGREGATING
IN PUBLIC BUILDINGS AND REFUSING TO MOVE ON WHEN ORDERED TO DO SO BY AN
AUTHORIZED PERSON, WAS IN NO WAY INVOLVED OR DISCUSSED IN COX.  THE
PROBLEMS OF STATE REGULATION OF THE STREETS ON THE ONE HAND, AND PUBLIC
BUILDINGS ON THE OTHER, ARE QUITE OBVIOUSLY SEPARATE AND DISTINCT. 
PUBLIC BUILDINGS SUCH AS LIBRARIES, SCHOOLHOUSES, FIRE DEPARTMENTS,
COURTHOUSES, AND EXECUTIVE MANSIONS ARE MAINTAINED TO PERFORM CERTAIN
SPECIFIC AND VITAL FUNCTIONS.  ORDER AND TRANQUILLITY OF A SORT
ENTIRELY UNKNOWN TO THE PUBLIC STREETS ARE ESSENTIAL TO THEIR NORMAL
OPERATION.  CONTRARY TO THE IMPLICATIONS IN THE PREVAILING OPINION IT
IS INCOMPREHENSIBLE TO ME THAT A STATE MUST MEASURE DISTURBANCES IN ITS
LIBRARIES AND ON THE STREETS WITH IDENTICAL STANDARDS.  FURTHERMORE,
THE VICE OF DISCRIMINATORY ENFORCEMENT, WHICH CONTAMINATES THE "PUBLIC
STREET" PHASE OF THIS STATUTE, (FN3) DOES NOT BESET THE STATUTE'S
APPLICATION TO ACTIVITY IN PUBLIC BUILDINGS.  IN THE PUBLIC BUILDING,
UNLIKE THE STREET, PEACE AND QUIET IS A FAST AND NECESSARY RULE, AND AS
A RESULT THERE IS MUCH LESS ROOM FOR PEACE OFFICERS TO ABUSE THEIR
AUTHORITY IN ENFORCING THE "PUBLIC BUILDING" PART OF THE STATUTE. 

IN MY BROTHER BRENNAN'S SEPARATE CONCURRING OPINION THE CONTENTION
SEEMS TO BE MADE THAT IN COX THIS COURT DECLARED AS UNCONSTITUTIONALLY
VAGUE NOT ONLY THE PART OF THE LOUISIANA STATUTE UNDER WHICH COX WAS
CONVICTED RELATING TO PICKETING IN THE STREETS, BUT ALSO THE PART
CREATING THE OFFENSE UNDER WHICH PETITIONERS HERE WERE CONVICTED.  IF
THIS IS TRUE IT MEANS THAT IN COX THE COURT DECLARED UNCONSTITUTIONAL
BOTH THE PARTS OF THE STATUTE CREATING THE OFFENSES INVOLVED IN THE COX
CASE AND THIS ONE, AND ALSO ALL OF THE SOME 30-ODD SEPARATE AND DIVERSE
OFFENSES ENUMERATED IN THE STATUTE RANGING FROM THE MAKING OF OBSCENE
REMARKS AND GESTURES, TO CAUSING A DISTURBANCE ON A PUBLIC BUS, TO
REFUSING TO LEAVE THE PRIVATE PREMISES OF ANOTHER WHEN ASKED TO DO SO
BY THE OWNER.  IF THE COURT'S HOLDING WAS THAT BROAD IT HAS PLACED IN
GREAT JEOPARDY EVERY BREACH OF THE PEACE STATUTE IN THIS COUNTRY.  I DO
NOT THINK THE COURT INTENDED TO DO ANY SUCH THING.  I CAN SEE NOTHING
IN THE COURT'S OPINION IN COX OR IN ANY OF THE CONCURRING OPINIONS, ONE
OF WHICH I WROTE, WHICH INDICATES AN INTENTION TO MAKE SUCH A SWEEPING
CONDEMNATION OF BREACH OF THE PEACE STATUTES.  IN COX THIS COURT HELD
UNCONSTITUTIONAL THE PART OF THE STATUTE UNDER WHICH COX WAS CONVICTED
BECAUSE AS CONSTRUED BY THE LOUISIANA SUPREME COURT IT AUTHORIZED
"PERSONS TO BE PUNISHED MERELY FOR PEACEFULLY EXPRESSING UNPOPULAR
VIEWS."  379 U.S., AT 551.  THE PART OF THE STATUTE INVOLVED HERE WHICH
MAKES IT AN OFFENSE TO CONGREGATE IN A PUBLIC BUILDING AND REFUSE TO
LEAVE IT WHEN ASKED TO DO SO BY AN AUTHORIZED PERSON, DOES NOT AFFECT
OR THREATEN IN ANY WAY AN EXERCISE OF THE RIGHTS OF FREE SPEECH, AND
THE LOUISIANA COURTS DID NOT SO CONSTRUE THIS PHASE OF THE STATUTE AS
THEY HAD CONSTRUED THE PART UNDER WHICH COX WAS CONVICTED.  THE PHASE
OF THE STATUTE UNDER SCRUTINY IN THIS CASE CLEARLY AND PRECISELY
REGULATES CERTAIN PARTICULAR CONDUCT IN LANGUAGE WHICH TAKEN AS A WHOLE
HAS NO AMBIGUITY WHATEVER.  PERSONS OF ORDINARY INTELLIGENCE WOULD HAVE
NO DIFFICULTY WHATEVER IN KNOWING THAT THIS PART OF THE STATUTE
REQUIRES THEM TO MOVE ON FROM A PUBLIC BUILDING WHEN AN AUTHORIZED
PERSON ASKS THEM TO DO SO.  SEE UNITED STATES V. PETRILLO, 332 U.S. 1,
5-8.  THE ONLY CONDUCT REACHED BY THIS PART OF THE STATUTE IS A REFUSAL
TO MOVE ON WHEN REQUESTED TO DO SO BY AN AUTHORIZED PERSON AND THIS
CONDUCT IS DESCRIBED IN WORDS DECLARED IN COX TO BE "NARROW AND
SPECIFIC."  (FN4) 379 U.S., AT 551.  SINCE PETITIONERS HERE HAD NO
LIBRARY BUSINESS WHATEVER THE CONSTITUTION OF THE UNITED STATES DOES
NOT REQUIRE THAT THEY BE PERMITTED TO REMAIN IN THE LIBRARY DESPITE
STATE LAW TO THE CONTRARY. 

(D)  THE FOURTH CASE WHICH THE PREVAILING OPINION CITES AS INDICATING
THAT THE "PUBLIC BUILDING" PHASE OF THE LOUISIANA STATUTE IS
UNCONSTITUTIONAL IS EDWARDS V. SOUTH CAROLINA, 372 U.S. 229.  THIS
COURT'S HOLDING IN THE EDWARDS CASE, HOWEVER, WAS BASED ON THE FACT
THAT THE STATUTE CONSTRUED THERE WAS NOT NARROWLY DRAWN TO ASSURE ITS
NONDISCRIMINATORY APPLICATION.  HERE THE PART OF THE LOUISIANA STATUTE
RELATING TO PUBLIC BUILDINGS, AS CONSTRUED AND APPLIED BY THE LOUISIANA
COURTS, DOES CLEARLY DESCRIBE THE OFFENSE.  NOTHING IN EDWARDS AS I
READ IT, STATES ANY PRINCIPLE OF CONSTITUTIONAL LAW UNDER WHICH A STATE
MUST PERMIT ITS PUBLIC LIBRARIES, DEDICATED TO READING AND LEARNING AND
STUDYING, TO BE USED FOR THE PURPOSE OF CONDUCTING PROTESTS AGAINST
PUBLIC OR PRIVATE POLICIES.  AND THAT IS THE CONSTITUTIONAL ISSUE IN
THE PRESENT CASE. 

I FIND NOTHING IN THESE FOUR CASES, NOR IN ANY OTHER CASE DECIDED BY
THIS COURT THAT I CAN RECALL, WHICH RESTRICTS LOUISIANA'S POWER TO
ENFORCE THAT PART OF ITS STATUTE ON WHICH THESE CONVICTIONS REST IN
ORDER TO MAINTAIN PEACE AND ORDER IN ITS PUBLIC LIBRARIES SO AS TO
FURTHER THE EXTREMELY NECESSARY PURPOSES UNDERLYING THEIR EXISTENCE. 

                II. 

THE PREVAILING OPINION AND TO SOME EXTENT THE TWO SEPARATE CONCURRING
OPINIONS TREAT THIS CASE AS THOUGH LOUISIANA WAS HERE ATTEMPTING TO
ENFORCE A POLICY OF DENYING LOUISIANA CITIZENS THE RIGHT TO USE THE
STATE'S LIBRARIES ON ACCOUNT OF RACE.  WHATEVER MAY HAVE BEEN THE
POLICY OF THE STATE OF LOUISIANA IN THE PAST OR MAY BE THE POLICY OF
THAT STATE AT THE PRESENT, AT OTHER PLACES OR IN OTHER CIRCUMSTANCES,
THERE SIMPLY WAS NO RACIAL DISCRIMINATION PRACTICED IN THIS CASE. 
THESE PETITIONERS WERE TREATED WITH EVERY COURTESY AND GRANTED EVERY
CONSIDERATION TO WHICH THEY WERE ENTITLED IN THE AUDUBON REGIONAL
LIBRARY.  THEY ASKED FOR A BOOK, PERHAPS AS THE PREVAILING OPINION
SUGGESTS MORE AS A RITUALISTIC CEREMONIAL THAN ANYTHING ELSE.  THE LADY
IN CHARGE NEVERTHELESS HUNTED FOR THE BOOK, FOUND SHE DID NOT HAVE IT,
SENT FOR IT, AND LATER OBTAINED IT FROM THE STATE LIBRARY FOR
PETITIONERS' USE.  (FN5)  NO PETITIONER ASKED FOR ANY OTHER BOOK, NONE
INDICATED THAT HE WANTED TO READ ANY OTHER BOOK, AND NONE ATTEMPTED TO
READ ANY OTHER BOOK OR ANY OTHER PRINTED MATTER.  AS A MATTER OF FACT
THE RECORD SHOWS, AND THE PREVAILING OPINION ADMITS, THAT THE FIVE
PETITIONERS STAYED IN THE LIBRARY NOT TO USE IT FOR LEARNING BUT AS
"MONUMENTS OF PROTEST" TO VOICE THEIR DISAPPROVAL OF WHAT THEY THOUGHT
WAS A POLICY OF THE STATE.  ALTHOUGH MRS. PERKINS, THE BRANCH'S
LIBRARIAN, TESTIFIED UNAMBIGUOUSLY THAT THERE WAS NO RACIAL
DISCRIMINATION PRACTICED AT HER LIBRARY, AND ALTHOUGH THE RECORD SHOWS
WITHOUT THE SLIGHTEST DISPUTE THAT THERE WAS NO DISCRIMINATION OF ANY
KIND OF CHARACTER PRACTICED AGAINST THESE PETITIONERS, IN AT LEAST THE
PREVAILING OPINION AND THAT OF MY BROTHER WHITE IT IS NEVERTHELESS
IMPLIED AT SEVERAL PLACES THAT THE EQUAL TREATMENT GIVEN THESE
PETITIONERS WAS SOME KIND OF SUBTERFUGE OR SHAM.  THESE ASPERSIONS ARE
I THINK WHOLLY WITHOUT JUSTIFICATION.  THE PREVAILING OPINION REFERS TO
THE "TIDY PLAN" OF THE STATE; WITH REFERENCE TO THE SERVICE GIVEN
PETITIONERS IT SAYS THAT "WE MAY ASSUME THAT THE RESPONSE CONSTITUTED
SERVICE, AND WE NEED NOT CONSIDER WHETHER IT WAS MERELY A GAMBIT IN THE
RITUAL"; IT INSINUATES THAT LOUISIANA WAS PLAYING A "GAME" WITH
PETITIONERS' RIGHTS, AND THE COURTEOUS TREATMENT GIVEN PETITIONERS BY
THE LIBRARIAN IS DEGRADED BY CALLING IT A "GESTURE OF SERVICE"; IT,
MOREOVER, REFERS TO THE STATE'S ARGUMENT IN THIS CASE AS GIVING A
"PIQUANT VERSION OF THE AFFAIR."  I SEE NO BASIS OR REASON FOR THESE
INNUENDOS AGAINST THE STATE'S DEFENSE OF ITS CONVICTIONS IN THIS CASE. 
THE STATE'S DISTRICT ATTORNEY, WHO ARGUED THE CASE BEFORE US, STATED
FRANKLY AND FORTHRIGHTLY THAT THERE WOULD BE NO DEFENSE HAD LOUISIANA
DENIED THESE PETITIONERS EQUAL SERVICE AT ITS PUBLIC LIBRARIES ON
ACCOUNT OF THEIR RACE.  THERE WAS NO SUCH DENIAL.  WE MUST NOW CONSIDER
THE COURT'S REVERSAL ON ITS MERITS.                              III. 

AS BEST I CAN TELL, ONE GROUND UPON WHICH BOTH THE PREVAILING OPINION
AND THAT OF MY BROTHER WHITE RELY TO REVERSE THESE CONVICTIONS IS THAT
THE STATE FAILED TO PROVE ITS CASE.  THIS CONCLUSION APPEARS TO BE
BASED ON THE ASSUMPTION THAT UNDER THE LOUISIANA STATUTE PROPERLY
CONSTRUED, THERE CAN BE NO CONVICTION UNLESS PERSONS WHO DO NOT WANT
LIBRARY SERVICE STAY THERE AN UNUSUALLY LONG TIME AFTER BEING ORDERED
TO LEAVE, MAKE A BIG NOISE, USE SOME BAD LANGUAGE, ENGAGE IN FIGHTING,
TRY TO PROVOKE A FIGHT, OR IN SOME OTHER WAY BECOME BOISTEROUS.  THE
ARGUMENT SEEMS TO BE THAT WITHOUT A BLATANT, LOUD MANIFESTATION OF
AGGRESSIVE HOSTILITY OR AN EXCEEDINGLY LONG "SIT-IN" OR "SOJOURN" IN A
PUBLIC LIBRARY, THERE ARE NO CIRCUMSTANCES WHICH COULD FORESEEABLY
OCCASION A BREACH OF THE PEACE.   LOUISIANA HAS NOT SO CONSTRUED ITS
STATUTE NOR SHOULD WE.  DOING SO GOES AGAINST COMMON SENSE AND COMMON
UNDERSTANDING.  WHILE SOFT WORDS CAN UNDOUBTEDLY TURN AWAY WRATH, THEY
MAY ALSO PROVOKE IT. DISTURBERS OF THE PEACE DO NOT ALWAYS RATTLE
SWORDS OR SHOUT INVECTIVES.  IT IS HIGH TIME TO CHALLENGE THE
ASSUMPTION IN WHICH TOO MANY PEOPLE HAVE TOO LONG ACQUIESCED, THAT
GROUPS THAT THINK THEY HAVE BEEN MISTREATED OR THAT HAVE ACTUALLY BEEN
MISTREATED HAVE A CONSTITUTIONAL RIGHT TO USE THE PUBLIC'S STREETS,
BUILDINGS, AND PROPERTY TO PROTEST WHATEVER, WHEREVER, WHENEVER THEY
WANT, WITHOUT REGARD TO WHOM SUCH CONDUCT MAY DISTURB. 

THE PHASE OF THE LOUISIANA STATUTE THAT WE ARE CONSIDERING HERE IS TO
ALL INTENTS AND PURPOSES AIMED AT TRESPASSERS ON GOVERNMENT PROPERTY. 
IN ADDITION, SUBDIVISION (4) OF THE SAME LOUISIANA LAW MAKES IT AN
OFFENSE FOR ONE TO REFUSE TO LEAVE THE PREMISES OF ANOTHER WHEN
REQUESTED TO DO SO BY THE OWNER.  BOTH OF THESE PROVISIONS OF THE STATE
STATUTE, HOWEVER, PROVIDE THAT BEFORE AN OFFENSE IS COMMITTED, THE
CONDUCT MUST BE ENGAGED IN "WITH INTENT TO PROVOKE A BREACH OF THE
PEACE, OR UNDER CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE
OCCASIONED THEREBY."  THERE IS A LONG HISTORY BEHIND TRESPASS LAWS IN
THE UNITED STATES.  INVASION OF ANOTHER MAN'S PROPERTY OVER HIS PROTEST
IS ONE OF THE SUREST WAYS ANY PERSON CAN PICK OUT TO DISTURB THE
PEACE.  LOUISIANA, JUST LIKE ANY OTHER STATE IN THIS UNION, HAS A RIGHT
TO PASS AND USE LAWS BASED ON KNOWLEDGE OF THIS FACT, A KNOWLEDGE SO
WIDESPREAD AND PREVALENT THAT IT WOULD PROBABLY BE DIFFICULT TO FIND A
HERMIT IGNORANT OF ITS EXISTENCE. 

I THINK THAT THE EVIDENCE IN THIS CASE ESTABLISHED EVERY ELEMENT IN
THE OFFENSE CHARGED AGAINST PETITIONERS.  NO ONE DISPUTES THE FACT THAT
PETITIONERS CONGREGATED IN A PUBLIC BUILDING AND REFUSED TO MOVE ON
WHEN ORDERED TO DO SO BY AUTHORIZED PERSONS.  THE ONLY FACTUAL QUESTION
WHICH CAN POSSIBLY ARISE REGARDING THE APPLICATION OF THE STATUTE HERE
IS WHETHER UNDER LOUISIANA LAW PETITIONERS EITHER INTENDED TO BREACH
THE PEACE OR CREATED CIRCUMSTANCES UNDER WHICH A BREACH MIGHT HAVE BEEN
OCCASIONED.  THE RECORD SHOWS THAT PETITIONERS, AS PART OF A PLAN,
ENTERED THE LIBRARY AND ONCE THERE STAYED DESPITE THE LIBRARIANS'
PROTESTS UNTIL ITS NORMAL ACTIVITY WAS COMPLETELY DISRUPTED.  TO BE
SURE, THERE WERE NOT "100 TO 300 'GRUMBLING' WHITE ONLOOKERS" AS THERE
WERE IN COX V. LOUISIANA, SUPRA, BUT SURELY, IN THE PREVAILING
OPINION'S FUTILE EFFORT TO RELY ON COX, IT IS NOT MEANT THAT 300 OR 100
GRUMBLING ONLOOKERS MUST BE CROWDED INTO A LIBRARY BEFORE LOUISIANA CAN
MAINTAIN AN ACTION UNDER THIS STATUTE.  A TINY PARISH BRANCH LIBRARY,
STAFFED BY TWO WOMEN, IS NOT A DEPARTMENT STORE AS IN GARNER V.
LOUISIANA, SUPRA, NOR A BUS TERMINAL AS IN TAYLOR V. LOUISIANA, SUPRA,
NOR A PUBLIC THOROUGHFARE AS IN EDWARDS V. SOUTH CAROLINA, SUPRA, AND
COX.  SHORT OF PHYSICAL VIOLENCE, PETITIONERS COULD NOT HAVE MORE
COMPLETELY UPSET THE NORMAL, QUIET FUNCTIONING OF THE CLINTON BRANCH OF
THE AUDUBON REGIONAL LIBRARY.  THE STATE COURTS BELOW THOUGHT THE
DISTURBANCE CREATED BY PETITIONERS CONSTITUTED A VIOLATION OF THE
STATUTE.  SO FAR AS THE REVERSAL HERE RESTS ON HOLDING THAT THE
LOUISIANA STATUTE WAS NOT VIOLATED, THE COURT SIMPLY SUBSTITUTES ITS
JUDGMENT FOR THAT OF THE LOUISIANA COURTS AS TO WHAT CONDUCT SATISFIES
THE REQUIREMENTS OF THAT STATE STATUTE.  WE ARE A LONG WAY OFF FROM
WHAT HAPPENED THERE TO SUBSTITUTE OUR JUDGMENT FOR THEIRS.  TO DO SO
NOT ONLY UPSETS SETTLED DOCTRINE CONCERNING THE INTERPRETATION OF STATE
STATUTES BY FEDERAL COURTS, SEE, E.G., GARNER V. LOUISIANA, SUPRA, AT
166; KINGSLEY PICTURES CORP. V. REGENTS, 360 U.S. 684, 688, BUT ALSO
BUILDS ON SHIFTING SANDS THAT IGNORE THE REALITIES OF LIFE IN OUR
COUNTRY. 

IV. 

HAVING ALREADY ATTEMPTED TO HOLD, WRONGFULLY I THINK, THAT THESE
CONVICTIONS SHOULD BE SET ASIDE AS UNCONSTITUTIONAL BECAUSE OF A
COMPLETE LACK OF EVIDENCE TO PROVE THE CHARGE, THE PREVAILING OPINION
VENTURES OUT IN AN ATTEMPT TO DECIDE OTHER CONSTITUTIONAL QUESTIONS. 
IT SAYS: 

"ACCORDINGLY, EVEN IF THE ACCUSED ACTION WERE WITHIN THE SCOPE OF THE
STATUTORY INSTRUMENT, WE WOULD BE REQUIRED TO ASSESS THE CONSTITUTIONAL
IMPACT OF ITS APPLICATION, AND WE WOULD HAVE TO HOLD THAT THE STATUTE
CANNOT CONSTITUTIONALLY BE APPLIED TO PUNISH PETITIONERS' ACTIONS IN
THE CIRCUMSTANCES OF THIS CASE." 

I HAVE SOMETIMES THOUGHT THAT THIS COURT HAS GONE ENTIRELY TOO FAR IN
REFUSING TO DECIDE CONSTITUTIONAL QUESTIONS ON THE GROUND THAT THEY
SHOULD BE AVOIDED WHERE POSSIBLE.  THE JOURNEY HERE, HOWEVER, GOES
ENTIRELY TOO FAR IN THE OPPOSITE DIRECTION.  APPARENTLY UNSATISFIED
WITH OR UNSURE OF THE "NO EVIDENCE" GROUND FOR REVERSING THE
CONVICTIONS, THE PREVAILING OPINION GOES ON TO STATE THAT THE STATUTE
WAS USED UNCONSTITUTIONALLY IN THE CIRCUMSTANCES OF THIS CASE BECAUSE
IT WAS "DELIBERATELY AND PURPOSEFULLY APPLIED SOLELY TO TERMINATE THE
REASONABLE, ORDERLY, AND LIMITED EXERCISE OF THE RIGHT TO PROTEST THE
UNCONSTITUTIONAL SEGREGATION OF A PUBLIC FACILITY."  FIRST, I AM
CONSTRAINED TO SAY THAT THIS STATEMENT IS WHOLLY UNSUPPORTED BY THE
RECORD IN THIS CASE.  THERE IS SIMPLY NO EVIDENCE IN THE RECORD AT ALL
THAT PETITIONERS WERE ARRESTED BECAUSE THEY WERE EXERCISING THE "RIGHT
TO PROTEST."  IT IS NEVERTHELESS SAID THAT THIS WAS THE SOLE REASON FOR
THE ARRESTS.  MOREOVER, THE CONCLUSION THAT THE STATUTE WAS
UNCONSTITUTIONALLY APPLIED BECAUSE IT INTERFERED WITH THE PETITIONERS'
SO-CALLED PROTEST ESTABLISHES A COMPLETELY NEW CONSTITUTIONAL
DOCTRINE.  IN THIS CASE THIS NEW CONSTITUTIONAL PRINCIPLE MEANS THAT
EVEN THOUGH THESE PETITIONERS DID NOT WANT TO USE THE LOUISIANA PUBLIC
LIBRARY FOR LIBRARY PURPOSES, THEY HAD A CONSTITUTIONAL RIGHT
NEVERTHELESS TO STAY THERE OVER THE PROTEST OF THE LIBRARIANS WHO HAD
LAWFUL AUTHORITY TO KEEP THE LIBRARY ORDERLY FOR THE USE OF PEOPLE WHO
WANTED TO USE ITS BOOKS, ITS MAGAZINES, AND ITS PAPERS.  BUT THE
PRINCIPLE ESPOUSED ALSO HAS A FAR BROADER MEANING.  IT MEANS THAT THE
CONSTITUTION (THE FIRST AND THE FOURTEENTH AMENDMENTS) REQUIRES THE
CUSTODIANS AND SUPERVISORS OF THE PUBLIC LIBRARIES IN THIS COUNTRY TO
STAND HELPLESSLY BY WHILE PROTESTING GROUPS ADVOCATING ONE CAUSE OR
ANOTHER, STAGE "SIT-INS" OR "STAND-UPS" TO DRAMATIZE THEIR PARTICULAR
VIEWS ON PARTICULAR ISSUES.  AND IT SHOULD BE REMEMBERED THAT IF ONE
GROUP CAN TAKE OVER LIBRARIES FOR ONE CAUSE, OTHER GROUPS WILL ASSERT
THE RIGHT TO DO SO FOR CAUSES WHICH, WHILE WHOLLY LEGAL, MAY NOT BE SO
APPEALING TO THIS COURT.  THE STATES ARE THUS PARALYZED WITH REFERENCE
TO CONTROL OF THEIR LIBRARIES FOR LIBRARY PURPOSES, AND I SUPPOSE THAT
INEVITABLY THE NEXT STEP WILL BE TO PARALYZE THE SCHOOLS.  EFFORTS TO
THIS EFFECT HAVE ALREADY BEEN MADE ALL OVER THE COUNTRY.  FURTHERMORE,
HERE IT SEEMS TO HAVE MADE NO DIFFERENCE WHATEVER THAT THE AUDUBON
REGIONAL LIBRARY, AT LEAST IN THIS INSTANCE, SATISFIED ITS
CONSTITUTIONAL DUTY BY GIVING THESE PETITIONERS ITS SERVICES IN FULL
MEASURE WITHOUT REGARD TO THEIR RACE. 

THE CONSTITUTIONAL DOCTRINE THAT ACTUALLY PREVAILS IN THIS COURT
TODAY FOR THE FIRST TIME IN ITS HISTORY RESTS AT LEAST IN GREAT PART ON
THE COURT'S INTERPRETATION OF THE FIRST AMENDMENT AS CARRIED INTO THE
STATES BY THE FOURTEENTH.  THIS IS THE FIRST AMENDMENT WHICH, AS I HAVE
SAID IN THE PAST, IS TO ME THE VERY HEART OF OUR FREE GOVERNMENT
WITHOUT WHICH LIBERTY AND EQUALITY CANNOT EXIST.  (FN6)  BUT I HAVE
NEVER THOUGHT AND DO NOT NOW THINK THAT THE FIRST AMENDMENT CAN SUSTAIN
THE STARTLING DOCTRINE THE PREVAILING OPINION HERE CREATES.  THE FIRST
AMENDMENT, I THINK, PROTECTS SPEECH, WRITINGS, AND EXPRESSION OF VIEWS
IN ANY MANNER IN WHICH THEY CAN BE LEGITIMATELY AND VALIDLY
COMMUNICATED.  BUT I HAVE NEVER BELIEVED THAT IT GIVES ANY PERSON OR
GROUP OF PERSONS THE CONSTITUTIONAL RIGHT TO GO WHEREVER THEY WANT,
WHENEVER THEY PLEASE, WITHOUT REGARD TO THE RIGHTS OF PRIVATE OR PUBLIC
PROPERTY OR TO STATE LAW.  INDEED A MAJORITY OF THIS COURT SAID AS MUCH
IN COX V. LOUISIANA, 379 U.S. 559, 574.  THOUGH THE FIRST AMENDMENT
GUARANTEES THE RIGHT OF ASSEMBLY AND THE RIGHT OF PETITION ALONG WITH
THE RIGHTS OF SPEECH, PRESS, AND RELIGION, IT DOES NOT GUARANTEE TO ANY
PERSON THE RIGHT TO USE SOMEONE ELSE'S PROPERTY, EVEN THAT OWNED BY
GOVERNMENT AND DEDICATED TO OTHER PURPOSES, AS A STAGE TO EXPRESS
DISSIDENT IDEAS.  THE NOVEL CONSTITUTIONAL DOCTRINE OF THE PREVAILING
OPINION NEVERTHELESS EXALTS THE POWER OF PRIVATE NONGOVERNMENTAL GROUPS
TO DETERMINE WHAT USE SHALL BE MADE OF GOVERNMENTAL PROPERTY OVER THE
POWER OF THE ELECTED GOVERNMENTAL OFFICIALS OF THE STATES AND THE
NATION. 

THE PREVAILING OPINION SEEMS TO FIND SOME COMFORT IN ITS VERY
QUESTIONABLE ASSUMPTION THAT IN THIS CASE "NO CLAIM CAN BE MADE THAT
USE OF THE LIBRARY BY OTHERS WAS DISTURBED BY THE DEMONSTRATION. 
PERHAPS THE TIME AND METHOD WERE CAREFULLY CHOSEN WITH THIS IN MIND." 
IF THIS WAS THE REASON SATURDAY MORNING WAS SELECTED, THE ONLY
REPRESENTATIVE OF CORE WHO TESTIFIED WAS NOT AWARE OF IT. (FN7)  NO ONE
OF THE PETITIONERS HAS SUGGESTED SUCH A THING.  THE LAWYERS FOR THE
PETITIONERS HAVE NOT.  IN FACT AT THE TRIAL RESPONSES OF THE SHERIFF TO
QUESTIONS ASKED HIM BY PETITIONERS' LAWYER INDICATE THAT THERE WAS
ANOTHER PATRON IN THE LIBRARY AT THE TIME THE PETITIONERS "SAT IN" OR
"STOOD UP" THERE.  BUT EVEN IF THERE WERE NO OTHER PATRONS THERE IN
THIS INSTANCE, WITH THIS NEW CONSTITUTIONAL DOCTRINE RATHER SHAKILY
ESTABLISHED, IT IS PRETTY CLEAR THAT ORGANIZED PROTESTERS WILL NOT
OVERLOOK THE CHANCE TO GO INTO THE LIBRARIES, AND DISTURB THOSE IN
THERE TO LEARN, AT A TIME WHEN THEIR "DEMONSTRATION" ACTIVITIES WILL
OBTAIN THE MOST PUBLICITY. 

THE PREVAILING OPINION LAMENTS THE FACT THAT THE PLACE WHERE THESE
EVENTS TOOK PLACE WAS "A PUBLIC LIBRARY - A PLACE DEDICATED TO QUIET,
TO KNOWLEDGE, AND TO BEAUTY."  I TOO LAMENT THIS FACT, AND FOR THIS
REASON I AM DEEPLY TROUBLED WITH THE FEAR THAT POWERFUL PRIVATE GROUPS
THROUGHOUT THE NATION WILL READ THE COURT'S ACTION, AS I DO - THAT IS,
AS GRANTING THEM A LICENSE TO INVADE THE TRANQUILLITY AND BEAUTY OF OUR
LIBRARIES WHENEVER THEY HAVE QUARREL WITH SOME STATE POLICY WHICH MAY
OR MAY NOT EXIST.  IT IS AN UNHAPPY CIRCUMSTANCE IN MY JUDGMENT THAT
THE GROUP, WHICH MORE THAN ANY OTHER HAS NEEDED A GOVERNMENT OF EQUAL
LAWS AND EQUAL JUSTICE, IS NOW ENCOURAGED TO BELIEVE THAT THE BEST WAY
FOR IT TO ADVANCE ITS CAUSE, WHICH IS A WORTHY ONE, IS BY TAKING THE
LAW INTO ITS OWN HANDS FROM PLACE TO PLACE AND FROM TIME TO TIME. 
GOVERNMENTS LIKE OURS WERE FORMED TO SUBSTITUTE THE RULE OF LAW FOR THE
RULE OF FORCE.  ILLUSTRATIONS MAY BE GIVEN WHERE CROWDS HAVE GATHERED
TOGETHER PEACEABLY BY REASON OF EXTRAORDINARILY GOOD DISCIPLINE
REINFORCED BY VIGILANT OFFICERS.  "DEMONSTRATIONS" HAVE TAKEN PLACE
WITHOUT ANY MANIFESTATIONS OF FORCE AT THE TIME.  BUT I SAY ONCE MORE
THAT THE CROWD MOVED BY NOBLE IDEALS TODAY CAN BECOME THE MOB RULED BY
HATE AND PASSION AND GREED AND VIOLENCE TOMORROW.  IF WE EVER DOUBTED
THAT, WE KNOW IT NOW.  THE PEACEFUL SONGS OF LOVE CAN BECOME AS
STIRRING AND PROVOCATIVE AS THE MARSEILLAISE DID IN THE DAYS WHEN A
NOBLE REVOLUTION GAVE WAY TO RULE BY SUCCESSIVE MOBS UNTIL CHAOS SET
IN.  THE HOLDING IN THIS CASE TODAY MAKES IT MORE NECESSARY THAN EVER
THAT WE STOP AND LOOK MORE CLOSELY AT WHERE WE ARE GOING. 

I WOULD AFFIRM. 

FN1  THERE ARE THREE SEPARATE OPINIONS WHICH SUPPORT REVERSAL OF THE
DECISION BELOW.  THE OPINION OF MY BROTHER FORTAS, WHICH FOR
CONVENIENCE I WILL CALL THE MAJORITY'S "PREVAILING" OPINION, IS JOINED
BY THE CHIEF JUSTICE AND MY BROTHER DOUGLAS.  MY BROTHERS BRENNAN AND
WHITE EACH CONCUR IN THE RESULT OF THE PREVAILING OPINION, BUT REACH
THAT RESULT ON DIFFERENT GROUNDS. 

FN2  LA. REV. STAT. SEC 14:103.1 (CUM. SUPP. 1962). 

FN3  SEE MY CONCURRING OPINION IN COX V. LOUISIANA, 379 U.S. 559, 578
580. 

FN4  A CONDITION UNDER WHICH THIS CONDUCT IS PUNISHABLE IS THAT IT BE
ENTERED INTO "WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR UNDER
CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED
THEREBY."  IN THE CONTEXT OF THE COX CASE RELATING TO ACTIVITY ON THE
PUBLIC STREETS THIS COURT HELD THIS LANGUAGE UNCONSTITUTIONALLY VAGUE. 
BUT AS I HAVE POINTED OUT ABOVE, THE COURT COULD NOT HAVE MEANT THAT
EVERY DISTURBING THE PEACE STATUTE WHICH CONTAINS THIS LANGUAGE IS
UNCONSTITUTIONAL.    FN5  THE NOTE DESCRIBING THE BOOK HE WANTED WHICH
PETITIONER BROWN GAVE MRS. REEVES READ, "WENDALL ARNA, THE STORY OF THE
NEGRO:  BONTEMS."  THIS INFORMATION APPARENTLY DESCRIBED NO PRINTED
BOOK.  THE BOOK WHICH WAS OBTAINED FROM THE STATE LIBRARY FOR
PETITIONERS' USE WAS THE STORY OF THE NEGRO, BY ARNA BONTEMPS. 

FN6  SEE MY DISSENTING OPINION IN DRIVERS UNION V. MEADOWMOOR CO. 312
U.S. 287, 301-302. 

FN7  MISS FEINGOLD, TASK FORCE WORKER FOR CORE AND THE STATE'S FIRST
WITNESS, TESTIFIED ON DIRECT EXAMINATION AS FOLLOWS: 

"Q.  WAS THERE ANY PARTICULAR REASON FOR THESE DEFENDANTS GOING TO
THE LIBRARY ON A SATURDAY MORNING? 

"A.  YOU MEAN ON A SATURDAY AS OPPOSED TO ANY OTHER DAY? 

"Q.  YES? 

"A.  NO, I DON'T." 
..END :
























GRAHAM V. JOHN DEERE CO. 383 U.S. 1 


NO. 11.  ARGUED OCTOBER 14, 1965.  - DECIDED FEBRUARY 21, 1966.* - 333
F.2D 529, AFFIRMED; 336 F.2D 110, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 37, CALMAR, INC. V. COOK CHEMICAL CO., AND NO. 43,
COLGATE-PALMOLIVE CO. V. COOK CHEMICAL CO., ALSO ON CERTIORARI TO THE
SAME COURT. 


IN NO. 11 PETITIONERS SUED FOR INFRINGEMENT OF A PATENT, CONSISTING OF
A COMBINATION OF OLD MECHANICAL ELEMENTS, FOR A DEVICE DESIGNED TO
ABSORB SHOCK FROM PLOW SHANKS IN ROCKY SOIL TO PREVENT DAMAGE TO THE
PLOW.  IN 1955 THE FIFTH CIRCUIT HELD THE PATENT VALID, RULING THAT A
COMBINATION IS PATENTABLE WHEN IT PRODUCES AN "OLD RESULT IN A CHEAPER
AND OTHERWISE MORE ADVANTAGEOUS WAY."  HERE THE EIGHTH CIRCUIT HELD
THAT SINCE THERE WAS NO NEW RESULT IN THE COMBINATION THE PATENT WAS
INVALID.  PETITIONERS IN NOS. 37 AND 43 FILED ACTIONS FOR DECLARATORY
JUDGMENTS DECLARING INVALID RESPONDENT'S PATENT RELATING TO A PLASTIC
FINGER SPRAYER WITH A "HOLD-DOWN" CAP USED AS A BUILT-IN DISPENSER FOR
CONTAINERS WITH LIQUIDS, PRINCIPALLY INSECTICIDES.  BY CROSS-ACTION
RESPONDENT CLAIMED INFRINGEMENT.  THE DISTRICT COURT AND THE COURT OF
APPEALS SUSTAINED THE PATENT.  HELD:  THE PATENTS DO NOT MEET THE TEST
OF THE "NONOBVIOUS" NATURE OF THE "SUBJECT MATTER SOUGHT TO BE
PATENTED" TO A PERSON HAVING ORDINARY SKILL IN THE PERTINENT ART, SET
FORTH IN SEC. 103 OF THE PATENT ACT OF 1952, AND ARE THEREFORE
INVALID.  PP. 3-37. 

(A)  IN CARRYING OUT THE CONSTITUTIONAL COMMAND OF ART. I, SEC. 8,
THAT A PATENT SYSTEM "PROMOTE THE PROGRESS OF  ...  USEFUL ARTS,"
CONGRESS ESTABLISHED THE TWO STATUTORY REQUIREMENTS OF NOVELTY AND
UTILITY IN THE PATENT ACT OF 1793.  PP. 3, 6, 12. 

(B) THIS COURT IN HOTCHKISS V. GREENWOOD, 11 HOW.  248 (1851),
ADDITIONALLY CONDITIONED THE ISSUANCE OF A PATENT UPON THE EVIDENCE OF
MORE INGENUITY AND SKILL THAN THAT POSSESSED BY AN ORDINARY MECHANIC
ACQUAINTED WITH THE BUSINESS.  P. 11. 

(C)  IN SEC. 103 OF THE 1952 PATENT ACT CONGRESS ADDED THE STATUTORY
NONOBVIOUS SUBJECT MATTER REQUIREMENT, ORIGINALLY EXPOUNDED IN
HOTCHKISS, WHICH MERELY CODIFIED JUDICIAL PRECEDENTS REQUIRING A
COMPARISON OF THE SUBJECT MATTER SOUGHT TO BE PATENTED AND THE PRIOR
ART, TYING PATENTABLE INVENTIONS TO ADVANCES IN THE ART. ALTHOUGH SEC.
103 PLACES EMPHASIS UPON INQUIRIES INTO OBVIOUSNESS, RATHER THAN INTO
"INVENTION," THE GENERAL LEVEL OF INNOVATION NECESSARY TO SUSTAIN
PATENTABILITY REMAINS UNCHANGED UNDER THE 1952 ACT.  PP. 14-17. 

(D)  THIS SECTION PERMITS A MORE PRACTICAL TEST OF PATENTABILITY. 
THE DETERMINATION OF "NONOBVIOUSNESS" IS MADE AFTER ESTABLISHING THE
SCOPE AND CONTENT OF PRIOR ART, THE DIFFERENCES BETWEEN THE PRIOR ART
AND THE CLAIMS AT ISSUE, AND THE LEVEL OF ORDINARY SKILL IN THE
PERTINENT ART.  P. 17. 

(E)  WITH RESPECT TO EACH PATENT INVOLVED HERE THE DIFFERENCES
BETWEEN THE CLAIMS IN ISSUE AND THE PERTINENT PRIOR ART WOULD HAVE BEEN
OBVIOUS TO A PERSON REASONABLY SKILLED IN THAT ART. PP. 25-26, 37. 

GRAHAM ET AL. V. JOHN DEERE CO. OF KANSAS CITY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

AFTER A LAPSE OF 15 YEARS, THE COURT AGAIN FOCUSES ITS ATTENTION ON
THE PATENTABILITY OF INVENTIONS UNDER THE STANDARD OF ART. I, SEC. 8,
CL. 8, OF THE CONSTITUTION AND UNDER THE CONDITIONS PRESCRIBED BY THE
LAWS OF THE UNITED STATES.  SINCE OUR LAST EXPRESSION ON PATENT
VALIDITY, A.&P. TEA CO. V. SUPERMARKET CORP., 340 U.S. 147 (1950), THE
CONGRESS HAS FOR THE FIRST TIME EXPRESSLY ADDED A THIRD STATUTORY
DIMENSION TO THE TWO REQUIREMENTS OF NOVELTY AND UTILITY THAT HAD BEEN
THE SOLE STATUTORY TEST SINCE THE PATENT ACT OF 1793.  THIS IS THE TEST
OF OBVIOUSNESS, I.E., WHETHER "THE SUBJECT MATTER SOUGHT TO BE PATENTED
AND THE PRIOR ART ARE SUCH THAT THE SUBJECT MATTER AS A WHOLE WOULD
HAVE BEEN OBVIOUS AT THE TIME THE INVENTION WAS MADE TO A PERSON HAVING
ORDINARY SKILL IN THE ART TO WHICH SAID SUBJECT MATTER PERTAINS. 
PATENTABILITY SHALL NOT BE NEGATIVED BY THE MANNER IN WHICH THE
INVENTION WAS MADE."  SEC. 103 OF THE PATENT ACT OF 1952, 35 U.S.C.
SEC. 103 (1964 ED.). 

THE QUESTIONS, INVOLVED IN EACH OF THE COMPANION CASES BEFORE US, ARE
WHAT EFFECT THE 1952 ACT HAD UPON TRADITIONAL STATUTORY AND JUDICIAL
TESTS OF PATENTABILITY AND WHAT DEFINITIVE TESTS ARE NOW REQUIRED.  WE
HAVE CONCLUDED THAT THE 1952 ACT WAS INTENDED TO CODIFY JUDICIAL
PRECEDENTS EMBRACING THE PRINCIPLE LONG AGO ANNOUNCED BY THIS COURT IN
HOTCHKISS V. GREENWOOD, 11 HOW.  248 (1851), AND THAT, WHILE THE CLEAR
LANGUAGE OF SEC. 103 PLACES EMPHASIS ON AN INQUIRY INTO OBVIOUSNESS,
THE GENERAL LEVEL OF INNOVATION NECESSARY TO SUSTAIN PATENTABILITY
REMAINS THE SAME. 

                               I. 

THE CASES. 

(A).  NO. 11, GRAHAM V. JOHN DEERE CO., AN INFRINGEMENT SUIT BY
PETITIONERS, PRESENTS A CONFLICT BETWEEN TWO CIRCUITS OVER THE VALIDITY
OF A SINGLE PATENT ON A "CLAMP FOR VIBRATING SHANK PLOWS."  THE
INVENTION, A COMBINATION OF OLD MECHANICAL ELEMENTS, INVOLVES A DEVICE
DESIGNED TO ABSORB SHOCK FROM PLOW SHANKS AS THEY PLOW THROUGH ROCKY
SOIL AND THUS TO PREVENT DAMAGE TO THE PLOW.  IN 1955, THE FIFTH
CIRCUIT HAD HELD THE PATENT VALID UNDER ITS RULE THAT WHEN A
COMBINATION PRODUCES AN "OLD RESULT IN A CHEAPER AND OTHERWISE MORE
ADVANTAGEOUS WAY," IT IS PATENTABLE.  JEOFFROY MFG., INC. V. GRAHAM,
219 F.2D 511, CERT. DENIED, 350 U.S. 826.  IN 1964, THE EIGHTH CIRCUIT
HELD, IN THE CASE AT BAR, THAT THERE WAS NO NEW RESULT IN THE PATENTED
COMBINATION AND THAT THE PATENT WAS, THEREFORE, NOT VALID.  333 F.2D
529, REVERSING 216 F. SUPP. 272.  WE GRANTED CERTIORARI, 379 U.S. 956. 
ALTHOUGH WE HAVE DETERMINED THAT NEITHER CIRCUIT APPLIED THE CORRECT
TEST, WE CONCLUDE THAT THE PATENT IS INVALID UNDER SEC. 103 AND,
THEREFORE, WE AFFIRM THE JUDGMENT OF THE EIGHTH CIRCUIT. 

(B).  NO. 37, CALMAR, INC. V. COOK CHEMICAL CO., AND NO. 43, COLGATE
PALMOLIVE CO. V. COOK CHEMICAL CO., BOTH FROM THE EIGHTH CIRCUIT, WERE
SEPARATE DECLARATORY JUDGMENT ACTIONS, BUT WERE FILED
CONTEMPORANEOUSLY.  PETITIONER IN CALMAR IS THE MANUFACTURER OF A
FINGER-OPERATED SPRAYER WITH A "HOLD-DOWN" CAP OF THE TYPE COMMONLY
SEEN ON GROCERS' SHELVES INSERTED IN BOTTLES OF INSECTICIDES AND OTHER
LIQUIDS PRIOR TO SHIPMENT.  PETITIONER IN COLGATE-PALMOLIVE IS A
PURCHASER OF THE SPRAYERS AND USES THEM IN THE DISTRIBUTION OF ITS
PRODUCTS.  EACH ACTION SOUGHT A DECLARATION OF INVALIDITY AND
NONINFRINGEMENT OF A PATENT ON SIMILAR SPRAYERS ISSUED TO COOK CHEMICAL
AS ASSIGNEE OF BAXTER I. SCOGGIN, JR., THE INVENTOR.  BY CROSS-ACTION,
COOK CHEMICAL CLAIMED INFRINGEMENT.  THE ACTIONS WERE CONSOLIDATED FOR
TRIAL AND THE PATENT WAS SUSTAINED BY THE DISTRICT COURT.  220 F. SUPP.
414.  THE COURT OF APPEALS AFFIRMED, 336 F.2D 110, AND WE GRANTED
CERTIORARI, 380 U.S. 949.  WE REVERSE. 

MANIFESTLY, THE VALIDITY OF EACH OF THESE PATENTS TURNS ON THE
FACTS.  THE BASIC PROBLEMS, HOWEVER, ARE THE SAME IN EACH CASE AND
REQUIRE INITIALLY A DISCUSSION OF THE CONSTITUTIONAL AND STATUTORY
PROVISIONS COVERING THE PATENTABILITY OF THE INVENTIONS. 

                            II. 

AT THE OUTSET IT MUST BE REMEMBERED THAT THE FEDERAL PATENT POWER
STEMS FROM A SPECIFIC CONSTITUTIONAL PROVISION WHICH AUTHORIZED THE
CONGRESS "TO PROMOTE THE PROGRESS OF  ...  USEFUL ARTS, BY SECURING FOR
LIMITED TIMES TO  ...  INVENTORS THE EXCLUSIVE RIGHT TO THEIR  ...
DISCOVERIES."  ART. I, SEC. 8, CL. 8.  (FN1)  THE CLAUSE IS BOTH A
GRANT OF POWER AND A LIMITATION.  THIS QUALIFIED AUTHORITY, UNLIKE THE
POWER OFTEN EXERCISED IN THE SIXTEENTH AND SEVENTEENTH CENTURIES BY THE
ENGLISH CROWN, IS LIMITED TO THE PROMOTION OF ADVANCES IN THE "USEFUL
ARTS."  IT WAS WRITTEN AGAINST THE BACKDROP OF THE PRACTICES -
EVENTUALLY CURTAILED BY THE STATUTE OF MONOPOLIES - OF THE CROWN IN
GRANTING MONOPOLIES TO COURT FAVORITES IN GOODS OR BUSINESSES WHICH HAD
LONG BEFORE BEEN ENJOYED BY THE PUBLIC.  SEE MEINHARDT, INVENTIONS,
PATENTS AND MONOPOLY, PP. 30-35 (LONDON, 1946).  THE CONGRESS IN THE
EXERCISE OF THE PATENT POWER MAY NOT OVERREACH THE RESTRAINTS IMPOSED
BY THE STATED CONSTITUTIONAL PURPOSE.  NOR MAY IT ENLARGE THE PATENT
MONOPOLY WITHOUT REGARD TO THE INNOVATION, ADVANCEMENT OR SOCIAL
BENEFIT GAINED THEREBY.  MOREOVER, CONGRESS MAY NOT AUTHORIZE THE
ISSUANCE OF PATENTS WHOSE EFFECTS ARE TO REMOVE EXISTENT KNOWLEDGE FROM
THE PUBLIC DOMAIN, OR TO RESTRICT FREE ACCESS TO MATERIALS ALREADY
AVAILABLE.  INNOVATION, ADVANCEMENT, AND THINGS WHICH ADD TO THE SUM OF
USEFUL KNOWLEDGE ARE INHERENT REQUISITES IN A PATENT SYSTEM WHICH BY
CONSTITUTIONAL COMMAND MUST "PROMOTE THE PROGRESS OF  ...  USEFUL
ARTS."  THIS IS THE STANDARD EXPRESSED IN THE CONSTITUTION AND IT MAY
NOT BE IGNORED.  AND IT IS IN THIS LIGHT THAT PATENT VALIDITY "REQUIRES
REFERENCE TO A STANDARD WRITTEN INTO THE CONSTITUTION."  A.&P. TEA CO.
V. SUPERMARKET CORP., SUPRA, AT 154 (CONCURRING OPINION). 

WITHIN THE LIMITS OF THE CONSTITUTIONAL GRANT, THE CONGRESS MAY, OF
COURSE, IMPLEMENT THE STATED PURPOSE OF THE FRAMERS BY SELECTING THE
POLICY WHICH IN ITS JUDGMENT BEST EFFECTUATES THE CONSTITUTIONAL AIM. 
THIS IS BUT A COROLLARY TO THE GRANT TO CONGRESS OF ANY ARTICLE I
POWER.  GIBBONS V. OGDEN, 9 WHEAT.  1.  WITHIN THE SCOPE ESTABLISHED BY
THE CONSTITUTION, CONGRESS MAY SET OUT CONDITIONS AND TESTS FOR
PATENTABILITY.  MCCLURG V. KINGSLAND, 1 HOW.  202, 206.  IT IS THE DUTY
OF THE COMMISSIONER OF PATENTS AND OF THE COURTS IN THE ADMINISTRATION
OF THE PATENT SYSTEM TO GIVE EFFECT TO THE CONSTITUTIONAL STANDARD BY
APPROPRIATE APPLICATION, IN EACH CASE, OF THE STATUTORY SCHEME OF THE
CONGRESS. 

CONGRESS QUICKLY RESPONDED TO THE BIDDING OF THE CONSTITUTION BY
ENACTING THE PATENT ACT OF 1790 DURING THE SECOND SESSION OF THE FIRST
CONGRESS.  IT CREATED AN AGENCY IN THE DEPARTMENT OF STATE HEADED BY
THE SECRETARY OF STATE, THE SECRETARY OF THE DEPARTMENT OF WAR AND THE
ATTORNEY GENERAL, ANY TWO OF WHOM COULD ISSUE A PATENT FOR A PERIOD NOT
EXCEEDING 14 YEARS TO ANY PETITIONER THAT "HATH  ...  INVENTED OR
DISCOVERED ANY USEFUL ART, MANUFACTURE,  ...  OR DEVICE, OR ANY
IMPROVEMENT THEREIN NOT BEFORE KNOWN OR USED" IF THE BOARD FOUND THAT
"THE INVENTION OR DISCOVERY WAS SUFFICIENTLY USEFUL AND IMPORTANT  ...
."  1 STAT. 110.  THIS GROUP, WHOSE MEMBERS ADMINISTERED THE PATENT
SYSTEM ALONG WITH THEIR OTHER PUBLIC DUTIES, WAS KNOWN BY ITS OWN
DESIGNATION AS "COMMISSIONERS FOR THE PROMOTION OF USEFUL ARTS." 

THOMAS JEFFERSON, WHO AS SECRETARY OF STATE WAS A MEMBER OF THE
GROUP, WAS ITS MOVING SPIRIT AND MIGHT WELL BE CALLED THE "FIRST
ADMINISTRATOR OF OUR PATENT SYSTEM."  SEE FEDERICO, OPERATION OF THE
PATENT ACT OF 1790, 18 J. PAT.  OFF.  SOC. 237, 238 (1936).  HE WAS NOT
ONLY AN ADMINISTRATOR OF THE PATENT SYSTEM UNDER THE 1790 ACT, BUT WAS
ALSO THE AUTHOR OF THE 1793 PATENT ACT.  IN ADDITION, JEFFERSON WAS
HIMSELF AN INVENTOR OF GREAT NOTE.  HIS UNPATENTED IMPROVEMENTS ON
PLOWS, TO MENTION BUT ONE LINE OF HIS INVENTIONS, WON ACCLAIM AND
RECOGNITION ON BOTH SIDES OF THE ATLANTIC.  BECAUSE OF HIS ACTIVE
INTEREST AND INFLUENCE IN THE EARLY DEVELOPMENT OF THE PATENT SYSTEM,
JEFFERSON'S VIEWS ON THE GENERAL NATURE OF THE LIMITED PATENT MONOPOLY
UNDER THE CONSTITUTION, AS WELL AS HIS CONCLUSIONS AS TO CONDITIONS FOR
PATENTABILITY UNDER THE STATUTORY SCHEME, ARE WORTHY OF NOTE. 

JEFFERSON, LIKE OTHER AMERICANS, HAD AN INSTINCTIVE AVERSION TO
MONOPOLIES.  IT WAS A MONOPOLY ON TEA THAT SPARKED THE REVOLUTION AND
JEFFERSON CERTAINLY DID NOT FAVOR AN EQUIVALENT FORM OF MONOPOLY UNDER
THE NEW GOVERNMENT.  HIS ABHORRENCE OF MONOPOLY EXTENDED INITIALLY TO
PATENTS AS WELL.  FROM FRANCE, HE WROTE TO MADISON (JULY 1788) URGING A
BILL OF RIGHTS PROVISION RESTRICTING MONOPOLY, AND AS AGAINST THE
ARGUMENT THAT LIMITED MONOPOLY MIGHT SERVE TO INCITE "INGENUITY," HE
ARGUED FORCEFULLY THAT "THE BENEFIT EVEN OF LIMITED MONOPOLIES IS TOO
DOUBTFUL TO BE OPPOSED TO THAT OF THEIR GENERAL SUPPRESSION," V
WRITINGS OF THOMAS JEFFERSON, AT 47 (FORD ED., 1895). 

HIS VIEWS RIPENED, HOWEVER, AND IN ANOTHER LETTER TO MADISON (AUG.
1789) AFTER THE DRAFTING OF THE BILL OF RIGHTS, JEFFERSON STATED THAT
HE WOULD HAVE BEEN PLEASED BY AN EXPRESS PROVISION IN THIS FORM: 

"ART. 9.  MONOPOLIES MAY BE ALLOWED TO PERSONS FOR THEIR OWN
PRODUCTIONS IN LITERATURE & THEIR OWN INVENTIONS IN THE ARTS, FOR A
TERM NOT EXCEEDING - YEARS BUT FOR NO LONGER TERM & NO OTHER PURPOSE." 
ID., AT 113. 

AND HE LATER WROTE: 

"CERTAINLY AN INVENTOR OUGHT TO BE ALLOWED A RIGHT TO THE BENEFIT OF
HIS INVENTION FOR SOME CERTAIN TIME  ...  .  NOBODY WISHES MORE THAN I
DO THAT INGENUITY SHOULD RECEIVE A LIBERAL ENCOURAGEMENT."  LETTER TO
OLIVER EVANS (MAY 1807), V WRITINGS OF THOMAS JEFFERSON, AT 75-76
(WASHINGTON ED.). 

JEFFERSON'S PHILOSOPHY ON THE NATURE AND PURPOSE OF THE PATENT
MONOPOLY IS EXPRESSED IN A LETTER TO ISAAC MCPHERSON (AUG. 1813), A
PORTION OF WHICH WE SET OUT IN THE MARGIN.  (FN2)  HE REJECTED A
NATURAL-RIGHTS THEORY IN INTELLECTUAL PROPERTY RIGHTS AND CLEARLY
RECOGNIZED THE SOCIAL AND ECONOMIC RATIONALE OF THE PATENT SYSTEM.  THE
PATENT MONOPOLY WAS NOT DESIGNED TO SECURE TO THE INVENTOR HIS NATURAL
RIGHT IN HIS DISCOVERIES.  RATHER, IT WAS A REWARD, AN INDUCEMENT, TO
BRING FORTH NEW KNOWLEDGE.  THE GRANT OF AN EXCLUSIVE RIGHT TO AN
INVENTION WAS THE CREATION OF SOCIETY - AT ODDS WITH THE INHERENT FREE
NATURE OF DISCLOSED IDEAS - AND WAS NOT TO BE FREELY GIVEN.  ONLY
INVENTIONS AND DISCOVERIES WHICH FURTHERED HUMAN KNOWLEDGE, AND WERE
NEW AND USEFUL, JUSTIFIED THE SPECIAL INDUCEMENT OF A LIMITED PRIVATE
MONOPOLY.  JEFFERSON DID NOT BELIEVE IN GRANTING PATENTS FOR SMALL
DETAILS, OBVIOUS IMPROVEMENTS, OR FRIVOLOUS DEVICES.  HIS WRITINGS
EVIDENCE HIS INSISTENCE UPON A HIGH LEVEL OF PATENTABILITY. 

AS A MEMBER OF THE PATENT BOARD FOR SEVERAL YEARS, JEFFERSON SAW
CLEARLY THE DIFFICULTY IN "DRAWING A LINE BETWEEN THE THINGS WHICH ARE
WORTH TO THE PUBLIC THE EMBARRASSMENT OF AN EXCLUSIVE PATENT, AND THOSE
WHICH ARE NOT."  THE BOARD ON WHICH HE SERVED SOUGHT TO DRAW SUCH A
LINE AND FORMULATED SEVERAL RULES WHICH ARE PRESERVED IN JEFFERSON'S
CORRESPONDENCE.  (FN3)  DESPITE THE BOARD'S EFFORTS, JEFFERSON SAW
"WITH WHAT SLOW PROGRESS A SYSTEM OF GENERAL RULES COULD BE MATURED." 
BECAUSE OF THE "ABUNDANCE" OF CASES AND THE FACT THAT THE
INVESTIGATIONS OCCUPIED "MORE TIME OF THE MEMBERS OF THE BOARD THAN
THEY COULD SPARE FROM HIGHER DUTIES, THE WHOLE WAS TURNED OVER TO THE
JUDICIARY, TO BE MATURED INTO A SYSTEM, UNDER WHICH EVERY ONE MIGHT
KNOW WHEN HIS ACTIONS WERE SAFE AND LAWFUL."  LETTER TO MCPHERSON,
SUPRA, AT 181, 182.  APPARENTLY CONGRESS AGREED WITH JEFFERSON AND THE
BOARD THAT THE COURTS SHOULD DEVELOP ADDITIONAL CONDITIONS FOR
PATENTABILITY.  ALTHOUGH THE PATENT ACT WAS AMENDED, REVISED OR
CODIFIED SOME 50 TIMES BETWEEN 1790 AND 1950, CONGRESS STEERED CLEAR OF
A STATUTORY SET OF REQUIREMENTS OTHER THAN THE BARE NOVELTY AND UTILITY
TESTS REFORMULATED IN JEFFERSON'S DRAFT OF THE 1793 PATENT ACT. 

  III. 

THE DIFFICULTY OF FORMULATING CONDITIONS FOR PATENTABILITY WAS
HEIGHTENED BY THE GENERALITY OF THE CONSTITUTIONAL GRANT AND THE
STATUTES IMPLEMENTING IT, TOGETHER WITH THE UNDERLYING POLICY OF THE
PATENT SYSTEM THAT "THE THINGS WHICH ARE WORTH TO THE PUBLIC THE
EMBARRASSMENT OF AN EXCLUSIVE PATENT," AS JEFFERSON PUT IT, MUST
OUTWEIGH THE RESTRICTIVE EFFECT OF THE LIMITED PATENT MONOPOLY.  THE
INHERENT PROBLEM WAS TO DEVELOP SOME MEANS OF WEEDING OUT THOSE
INVENTIONS WHICH WOULD NOT BE DISCLOSED OR DEVISED BUT FOR THE
INDUCEMENT OF A PATENT. 

THIS COURT FORMULATED A GENERAL CONDITION OF PATENTABILITY IN 1851 IN
HOTCHKISS V. GREENWOOD, 11 HOW.  248.  THE PATENT INVOLVED A MERE
SUBSTITUTION OF MATERIALS - PORCELAIN OR CLAY FOR WOOD OR METAL IN
DOORKNOBS - AND THE COURT CONDEMNED IT, HOLDING:  (FN4) 

UNLESS MORE INGENUITY AND SKILL  ...  WERE REQUIRED  ...  THAN WERE
POSSESSED BY AN ORDINARY MECHANIC ACQUAINTED WITH THE BUSINESS, THERE
WAS AN ABSENCE OF THAT DEGREE OF SKILL AND INGENUITY WHICH CONSTITUTE
ESSENTIAL ELEMENTS OF EVERY INVENTION.  IN OTHER WORDS, THE IMPROVEMENT
IS THE WORK OF THE SKILFUL MECHANIC, NOT THAT OF THE INVENTOR."  AT P.
267.    HOTCHKISS, BY POSITING THE CONDITION THAT A PATENTABLE
INVENTION EVIDENCE MORE INGENUITY AND SKILL THAN THAT POSSESSED BY AN
ORDINARY MECHANIC ACQUAINTED WITH THE BUSINESS, MERELY DISTINGUISHED
BETWEEN NEW AND USEFUL INNOVATIONS THAT WERE CAPABLE OF SUSTAINING A
PATENT AND THOSE THAT WERE NOT.   THE HOTCHKISS TEST LAID THE
CORNERSTONE OF THE JUDICIAL EVOLUTION SUGGESTED BY JEFFERSON AND LEFT
TO THE COURTS BY CONGRESS.  THE LANGUAGE IN THE CASE, AND IN THOSE
WHICH FOLLOWED, GAVE BIRTH TO "INVENTION" AS A WORD OF LEGAL ART
SIGNIFYING PATENTABLE INVENTIONS.  YET, AS THIS COURT HAS OBSERVED,
"THE TRUTH IS THE WORD 'INVENTION' CANNOT BE DEFINED IN SUCH MANNER AS
TO AFFORD ANY SUBSTANTIAL AID IN DETERMINING WHETHER A PARTICULAR
DEVICE INVOLVES AN EXERCISE OF THE INVENTIVE FACULTY OR NOT."  MCCLAIN
V. ORTMAYER, 141 U.S. 419, 427 (1891); A.&P. TEA CO. V. SUPERMARKET
CORP., SUPRA, AT 151.  ITS USE AS A LABEL BROUGHT ABOUT A LARGE VARIETY
OF OPINIONS AS TO ITS MEANING BOTH IN THE PATENT OFFICE, IN THE COURTS,
AND AT THE BAR.  THE HOTCHKISS FORMULATION, HOWEVER, LIES NOT IN ANY
LABEL, BUT IN ITS FUNCTIONAL APPROACH TO QUESTIONS OF PATENTABILITY. 
IN PRACTICE, HOTCHKISS HAS REQUIRED A COMPARISON BETWEEN THE SUBJECT
MATTER OF THE PATENT, OR PATENT APPLICATION, AND THE BACKGROUND SKILL
OF THE CALLING.  IT HAS BEEN FROM THIS COMPARISON THAT PATENTABILITY
WAS IN EACH CASE DETERMINED. 

                                        IV. 

THE 1952 PATENT ACT. 

THE ACT SETS OUT THE CONDITIONS OF PATENTABILITY IN THREE SECTIONS. 
AN ANALYSIS OF THE STRUCTURE OF THESE THREE SECTIONS INDICATES THAT
PATENTABILITY IS DEPENDENT UPON THREE EXPLICIT CONDITIONS: NOVELTY AND
UTILITY AS ARTICULATED AND DEFINED IN SEC. 101 AND SEC. 102, AND
NONOBVIOUSNESS, THE NEW STATUTORY FORMULATION, AS SET OUT IN SEC. 103. 
THE FIRST TWO SECTIONS, WHICH TRACE CLOSELY THE 1874 CODIFICATION,
EXPRESS THE "NEW AND USEFUL" TESTS WHICH HAVE ALWAYS EXISTED IN THE
STATUTORY SCHEME AND, FOR OUR PURPOSES HERE, NEED NO CLARIFICATION. 
(FN5)  THE PIVOTAL SECTION AROUND WHICH THE PRESENT CONTROVERSY CENTERS
IS SEC. 103.  IT PROVIDES: 

"SEC. 103.  CONDITIONS FOR PATENTABILITY; NON-OBVIOUS SUBJECT
MATTER: 

"A PATENT MAY NOT BE OBTAINED THOUGH THE INVENTION IS NOT IDENTICALLY
DISCLOSED OR DESCRIBED AS SET FORTH IN SECTION 102 OF THIS TITLE, IF
THE DIFFERENCES BETWEEN THE SUBJECT MATTER SOUGHT TO BE PATENTED AND
THE PRIOR ART ARE SUCH THAT THE SUBJECT MATTER AS A WHOLE WOULD HAVE
BEEN OBVIOUS AT THE TIME THE INVENTION WAS MADE TO A PERSON HAVING
ORDINARY SKILL IN THE ART TO WHICH SAID SUBJECT MATTER PERTAINS. 
PATENTABILITY SHALL NOT BE NEGATIVED BY THE MANNER IN WHICH THE
INVENTION WAS MADE." 

THE SECTION IS CAST IN RELATIVELY UNAMBIGUOUS TERMS.  PATENTABILITY
IS TO DEPEND, IN ADDITION TO NOVELTY AND UTILITY, UPON THE "NON
OBVIOUS" NATURE OF THE "SUBJECT MATTER SOUGHT TO BE PATENTED" TO A
PERSON HAVING ORDINARY SKILL IN THE PERTINENT ART. 

THE FIRST SENTENCE OF THIS SECTION IS STRONGLY REMINISCENT OF THE
LANGUAGE IN HOTCHKISS.  BOTH FORMULATIONS PLACE EMPHASIS ON THE
PERTINENT ART EXISTING AT THE TIME THE INVENTION WAS MADE AND BOTH ARE
IMPLICITLY TIED TO ADVANCES IN THAT ART. THE MAJOR DISTINCTION IS THAT
CONGRESS HAS EMPHASIZED "NONOBVIOUSNESS" AS THE OPERATIVE TEST OF THE
HOTCHKISS THAT CONGRESS THOUGHT HAD LED TO "A LARGE VARIETY" OF
EXPRESSIONS IN DECISIONS AND WRITINGS.  IN THE TITLE ITSELF THE
CONGRESS USED THE PHRASE "CONDITIONS FOR PATENTABILITY; NON-OBVIOUS
SUBJECT MATTER," THUS FOCUSING UPON "NON-OBVIOUSNESS" RATHER THAN
"INVENTION."  (FN6)  THE SENATE AND HOUSE REPORTS, S. REP. NO. 1979,
82D CONG., 2D SESS. (1952); H.R. REP. NO. 1923, 82D CONG., 2D SESS.
(1952), REFLECT THIS EMPHASIS IN THESE TERMS: 

"SECTION 103, FOR THE FIRST TIME IN OUR STATUTE, PROVIDES A CONDITION
WHICH EXISTS IN THE LAW AND HAS EXISTED FOR MORE THAN 100 YEARS, BUT
ONLY BY REASON OF DECISIONS OF THE COURTS.  AN INVENTION WHICH HAS BEEN
MADE, AND WHICH IS NEW IN THE SENSE THAT THE SAME THING HAS NOT BEEN
MADE BEFORE, MAY STILL NOT BE PATENTABLE IF THE DIFFERENCE BETWEEN THE
NEW THING AND WHAT WAS KNOWN BEFORE IS NOT CONSIDERED SUFFICIENTLY
GREAT TO WARRANT A PATENT.  THAT HAS BEEN EXPRESSED IN A LARGE VARIETY
OF WAYS IN DECISIONS OF THE COURTS AND IN WRITINGS.  SECTION 103 STATES
THIS REQUIREMENT IN THE TITLE.  IT REFERS TO THE DIFFERENCE BETWEEN THE
SUBJECT MATTER SOUGHT TO BE PATENTED AND THE PRIOR ART, MEANING WHAT
WAS KNOWN BEFORE AS DESCRIBED IN SECTION 102.  IF THIS DIFFERENCE IS
SUCH THAT THE SUBJECT MATTER AS A WHOLE WOULD HAVE BEEN OBVIOUS AT THE
TIME TO A PERSON SKILLED IN THE ART, THEN THE SUBJECT MATTER CANNOT BE
PATENTED. 

"THAT PROVISION PARAPHRASES LANGUAGE WHICH HAS OFTEN BEEN USED IN
DECISIONS OF THE COURTS, AND THE SECTION IS ADDED TO THE STATUTE FOR
UNIFORMITY AND DEFINITENESS.  THIS SECTION SHOULD HAVE A STABILIZING
EFFECT AND MINIMIZE GREAT DEPARTURES WHICH HAVE APPEARED IN SOME
CASES."  H.R. REP., SUPRA, AT 7; S. REP., SUPRA, AT 6. 

IT IS UNDISPUTED THAT THIS SECTION WAS, FOR THE FIRST TIME, A
STATUTORY EXPRESSION OF AN ADDITIONAL REQUIREMENT FOR PATENTABILITY,
ORIGINALLY EXPRESSED IN HOTCHKISS.  IT ALSO SEEMS APPARENT THAT
CONGRESS INTENDED BY THE LAST SENTENCE OF SEC. 103 TO ABOLISH THE TEST
IT BELIEVED THIS COURT ANNOUNCED IN THE CONTROVERSIAL PHRASE "FLASH OF
CREATIVE GENIUS," USED IN CUNO CORP. V. AUTOMATIC DEVICES CORP., 314
U.S. 84 (1941).  (FN7) 

IT IS CONTENDED, HOWEVER, BY SOME OF THE PARTIES AND BY SEVERAL OF
THE AMICI THAT THE FIRST SENTENCE OF SEC. 103 WAS INTENDED TO SWEEP
AWAY JUDICIAL PRECEDENTS AND TO LOWER THE LEVEL OF PATENTABILITY. 
OTHERS CONTEND THAT THE CONGRESS INTENDED TO CODIFY THE ESSENTIAL
PURPOSE REFLECTED IN EXISTING JUDICIAL PRECEDENTS - THE REJECTION OF
INSIGNIFICANT VARIATIONS AND INNOVATIONS OF A COMMONPLACE SORT - AND
ALSO TO FOCUS INQUIRIES UNDER SEC. 103 UPON NONOBVIOUSNESS, RATHER THAN
UPON "INVENTION," AS A MEANS OF ACHIEVING MORE STABILITY AND
PREDICTABILITY IN DETERMINING PATENTABILITY AND VALIDITY. 

THE REVISER'S NOTE TO THIS SECTION,  (FN8) WITH APPARENT REFERENCE TO
HOTCHKISS, RECOGNIZES THAT JUDICIAL REQUIREMENTS AS TO "LACK OF
PATENTABLE NOVELTY HAVE BEEN FOLLOWED SINCE AT LEAST AS EARLY AS
1850."  THE NOTE INDICATES THAT THE SECTION WAS INSERTED BECAUSE IT
"MAY HAVE SOME STABILIZING EFFECT, AND ALSO TO SERVE AS A BASIS FOR THE
ADDITION AT A LATER TIME OF SOME CRITERIA WHICH MAY BE WORKED OUT."  TO
THIS SAME EFFECT ARE THE REPORTS OF BOTH HOUSES, SUPRA, WHICH STATE
THAT THE FIRST SENTENCE OF THE SECTION "PARAPHRASES LANGUAGE WHICH HAS
OFTEN BEEN USED IN DECISIONS OF THE COURTS, AND THE SECTION IS ADDED TO
THE STATUTE FOR UNIFORMITY AND DEFINITENESS." 

WE BELIEVE THAT THIS LEGISLATIVE HISTORY, AS WELL AS OTHER SOURCES,
(FN9) SHOWS THAT THE REVISION WAS NOT INTENDED BY CONGRESS TO CHANGE
THE GENERAL LEVEL OF PATENTABLE INVENTION.  WE CONCLUDE THAT THE
EMBRACING THE HOTCHKISS CONDITION, WITH CONGRESSIONAL DIRECTIONS THAT
INQUIRIES INTO THE OBVIOUSNESS OF THE SUBJECT MATTER SOUGHT TO BE
PATENTED ARE A PREREQUISITE TO PATENTABILITY. 

                   V. 

APPROACHED IN THIS LIGHT, THE SEC. 103 ADDITIONAL CONDITION, WHEN
FOLLOWED REALISTICALLY, WILL PERMIT A MORE PRACTICAL TEST OF
PATENTABILITY.  THE EMPHASIS ON NONOBVIOUSNESS IS ONE OF INQUIRY, NOT
QUALITY, AND, AS SUCH, COMPORTS WITH THE CONSTITUTIONAL STRICTURES. 

WHILE THE ULTIMATE QUESTION OF PATENT VALIDITY IS ONE OF LAW, A.&P.
TEA CO. V. SUPERMARKET CORP., SUPRA, AT 155, THE SEC. 103 CONDITION,
WHICH IS BUT ONE OF THREE CONDITIONS, EACH OF WHICH MUST BE SATISFIED,
LENDS ITSELF TO SEVERAL BASIC FACTUAL INQUIRIES.  UNDER SEC. 103, THE
SCOPE AND CONTENT OF THE PRIOR ART ARE TO BE DETERMINED; DIFFERENCES
BETWEEN THE PRIOR ART AND THE CLAIMS AT ISSUE ARE TO BE ASCERTAINED;
AND THE LEVEL OF ORDINARY SKILL IN THE PERTINENT ART RESOLVED.  AGAINST
THIS BACKGROUND, THE OBVIOUSNESS OR NONOBVIOUSNESS OF THE SUBJECT
MATTER IS DETERMINED.  SUCH SECONDARY CONSIDERATIONS AS COMMERCIAL
SUCCESS, LONG FELT BUT UNSOLVED NEEDS, FAILURE OF OTHERS, ETC., MIGHT
BE UTILIZED TO GIVE LIGHT TO THE CIRCUMSTANCES SURROUNDING THE ORIGIN
OF THE SUBJECT MATTER SOUGHT TO BE PATENTED.  AS INDICIA OF OBVIOUSNESS
OR NONOBVIOUSNESS, THESE INQUIRIES MAY HAVE RELEVANCY.  SEE NOTE,
SUBTESTS OF "NONOBVIOUSNESS":  A NONTECHNICAL APPROACH TO PATENT
VALIDITY, 112 U. PA. L. REV. 1169 (1964). 

THIS IS NOT TO SAY, HOWEVER, THAT THERE WILL NOT BE DIFFICULTIES IN
APPLYING THE NONOBVIOUSNESS TEST.  WHAT IS OBVIOUS IS NOT A QUESTION
UPON WHICH THERE IS LIKELY TO BE UNIFORMITY OF THOUGHT IN EVERY GIVEN
FACTUAL CONTEXT.  THE DIFFICULTIES, HOWEVER, ARE COMPARABLE TO THOSE
ENCOUNTERED DAILY BY THE COURTS IN SUCH FRAMES OF REFERENCE AS
NEGLIGENCE AND SCIENTER, AND SHOULD BE AMENABLE TO A CASE-BY-CASE
DEVELOPMENT.  WE BELIEVE THAT STRICT OBSERVANCE OF THE REQUIREMENTS
LAID DOWN HERE WILL RESULT IN THAT UNIFORMITY AND DEFINITENESS WHICH
CONGRESS CALLED FOR IN THE 1952 ACT. 

WHILE WE HAVE FOCUSED ATTENTION ON THE APPROPRIATE STANDARD TO BE
APPLIED BY THE COURTS, IT MUST BE REMEMBERED THAT THE PRIMARY
RESPONSIBILITY FOR SIFTING OUT UNPATENTABLE MATERIAL LIES IN THE PATENT
OFFICE.  TO AWAIT LITIGATION IS - FOR ALL PRACTICAL PURPOSES - TO
DEBILITATE THE PATENT SYSTEM.  WE HAVE OBSERVED A NOTORIOUS DIFFERENCE
BETWEEN THE STANDARDS APPLIED BY THE PATENT OFFICE AND BY THE COURTS. 
WHILE MANY REASONS CAN BE ADDUCED TO EXPLAIN THE DISCREPANCY, ONE MAY
WELL BE THE FREE REIN OFTEN EXERCISED BY EXAMINERS IN THEIR USE OF THE
CONCEPT OF "INVENTION."  IN THIS CONNECTION WE NOTE THAT THE PATENT
OFFICE IS CONFRONTED WITH A MOST DIFFICULT TASK.  ALMOST 100,000
APPLICATIONS FOR PATENTS ARE FILED EACH YEAR.  OF THESE, ABOUT 50,000
ARE GRANTED AND THE BACKLOG NOW RUNS WELL OVER 200,000.  1965 ANNUAL
REPORT OF THE COMMISSIONER OF PATENTS 13-14.  THIS IS ITSELF A
COMPELLING REASON FOR THE COMMISSIONER TO STRICTLY ADHERE TO THE 1952
ACT AS INTERPRETED HERE.  THIS WOULD, WE BELIEVE, NOT ONLY EXPEDITE
DISPOSITION BUT BRING ABOUT A CLOSER CONCURRENCE BETWEEN ADMINISTRATIVE
AND JUDICIAL PROCEDENT.  (FN10) 

ALTHOUGH WE CONCLUDE HERE THAT THE INQUIRY WHICH THE PATENT OFFICE
AND THE COURTS MUST MAKE AS TO PATENTABILITY MUST BE BEAMED WITH
GREATER INTENSITY ON THE REQUIREMENTS OF SEC. 103, IT BEARS REPEATING
THAT WE FIND NO CHANGE IN THE GENERAL STRICTNESS WITH WHICH THE OVERALL
TEST IS TO BE APPLIED.  WE HAVE BEEN URGED TO FIND IN SEC. 103 A
RELAXED STANDARD, SUPPOSEDLY A CONGRESSIONAL REACTION TO THE "INCREASED
STANDARD" APPLIED BY THIS COURT IN ITS DECISIONS OVER THE LAST 20 OR 30
YEARS.  THE STANDARD HAS REMAINED INVARIABLE IN THIS COURT. 
TECHNOLOGY, HOWEVER, HAS ADVANCED - AND WITH REMARKABLE RAPIDITY IN THE
LAST 50 YEARS.  MOREOVER, THE AMBIT OF APPLICABLE ART IN GIVEN FIELDS
OF SCIENCE HAS WIDENED BY DISCIPLINES UNHEARD OF A HALF CENTURY AGO. 
IT IS BUT AN EVENHANDED APPLICATION TO REQUIRE THAT THOSE PERSONS
GRANTED THE BENEFIT OF A PATENT MONOPOLY BE CHARGED WITH AN AWARENESS
OF THESE CHANGED CONDITIONS.  THE SAME IS TRUE OF THE LESS TECHNICAL,
BUT STILL USEFUL ARTS.  HE WHO SEEKS TO BUILD A BETTER MOUSETRAP TODAY
HAS A LONG PATH TO TREAD BEFORE REACHING THE PATENT OFFICE. 

VI. 

WE NOW TURN TO THE APPLICATION OF THE CONDITIONS FOUND NECESSARY FOR
PATENTABILITY TO THE CASES INVOLVED HERE: 

A. THE PATENT IN ISSUE IN NO. 11, GRAHAM V. JOHN DEERE CO. 

THIS PATENT, NO. 2,627,798 (HEREINAFTER CALLED THE '798 PATENT)
RELATES TO A SPRING CLAMP WHICH PERMITS PLOW SHANKS TO BE PUSHED UPWARD
WHEN THEY HIT OBSTRUCTIONS IN THE SOIL, AND THEN SPRINGS THE SHANKS
BACK INTO NORMAL POSITION WHEN THE OBSTRUCTION IS PASSED OVER.  THE
DEVICE, WHICH WE SHOW DIAGRAMMATICALLY IN THE ACCOMPANYING SKETCHES
(APPENDIX, FIG. 1 - OMITTED), IS FIXED TO THE PLOW FRAME AS A UNIT. 
THE MECHANISM AROUND WHICH THE CONTROVERSY CENTERS IS BASICALLY A
HINGE.  THE TOP HALF OF IT, KNOWN AS THE UPPER PLATE (MARKED 1 IN THE
SKETCHES), IS A HEAVY METAL PIECE CLAMPED TO THE PLOW FRAME (2) AND IS
STATIONARY RELATIVE TO THE PLOW FRAME.  THE LOWER HALF OF THE HINGE,
KNOWN AS THE HINGE PLATE (3), IS CONNECTED TO THE REAR OF THE UPPER
PLATE BY A HINGE PIN (4) AND ROTATES DOWNWARD WITH RESPECT TO IT. THE
SHANK (5), WHICH IS BOLTED TO THE FORWARD END OF THE HINGE PLATE (AT
6), RUNS BENEATH THE PLATE AND PARALLEL TO IT FOR ABOUT NINE INCHES,
PASSES THROUGH A STIRRUP (7), AND THEN CONTINUES BACKWARD FOR SEVERAL
FEET CURVING DOWN TOWARD THE GROUND.  THE CHISEL (8), WHICH DOES THE
ACTUAL PLOWING, IS ATTACHED TO THE REAR END OF THE SHANK.  AS THE PLOW
FRAME IS PULLED FORWARD, THE CHISEL RIPS THROUGH THE SOIL, THEREBY
PLOWING IT.  IN THE NORMAL POSITION, THE HINGE PLATE AND THE SHANK ARE
KEPT TIGHT AGAINST THE UPPER PLATE BY A SPRING (9), WHICH IS ATOP THE
UPPER PLATE.  A ROD (10) RUNS THROUGH THE CENTER OF THE SPRING,
EXTENDING DOWN THROUGH HOLES IN BOTH PLATES AND THE SHANK.  ITS UPPER
END IS BOLTED TO THE TOP OF THE SPRING WHILE ITS LOWER END IS HOOKED
AGAINST THE UNDERSIDE OF THE SHANK. 

WHEN THE CHISEL HITS A ROCK OR OTHER OBSTRUCTION IN THE SOIL, THE
OBSTRUCTION FORCES THE CHISEL AND THE REAR PORTION OF THE SHANK TO MOVE
UPWARD.  THE SHANK IS PIVOTED (AT 11) AGAINST THE REAR OF THE HINGE
PLATE AND PRIES OPEN THE HINGE AGAINST THE CLOSING TENDENCY OF THE
SPRING.  (SEE SKETCH LABELED "OPEN POSITION," APPENDIX, FIG. 1 -
OMITTED.)  THIS CLOSING TENDENCY IS CAUSED BY THE FACT THAT, AS THE
HINGE IS OPENED, THE CONNECTING ROD IS PULLED DOWNWARD AND THE SPRING
IS COMPRESSED.  WHEN THE OBSTRUCTION IS PASSED OVER, THE UPWARD FORCE
ON THE CHISEL DISAPPEARS AND THE SPRING PULLS THE SHANK AND HINGE PLATE
BACK INTO THEIR ORIGINAL POSITION.  THE LOWER, REAR PORTION OF THE
HINGE PLATE IS CONSTRUCTED IN THE FORM OF A STIRRUP (7) WHICH BRACKETS
THE SHANK, PASSING AROUND AND BENEATH IT.  THE SHANK FITS LOOSELY INTO
THE STIRRUP (PERMITTING A SLIGHT UP AND DOWN PLAY).  THE STIRRUP IS
DESIGNED TO PREVENT THE SHANK FROM RECOILING AWAY FROM THE HINGE PLATE,
AND THUS PREVENTS EXCESSIVE STRAIN ON THE SHANK NEAR ITS BOLTED
CONNECTION.  THE STIRRUP ALSO GIRDS THE SHANK, PREVENTING IT FROM
FISHTAILING FROM SIDE TO SIDE.    IN PRACTICAL USE, A NUMBER OF SPRING
HINGE-SHANK COMBINATIONS ARE CLAMPED TO A PLOW FRAME, FORMING A SET OF
GROUND-WORKING CHISELS CAPABLE OF WITHSTANDING THE SHOCK OF ROCKS AND
OTHER OBSTRUCTIONS IN THE SOIL WITHOUT BREAKING THE SHANKS. 

BACKGROUND OF THE PATENT. 

CHISEL PLOWS, AS THEY ARE CALLED, WERE DEVELOPED FOR PLOWING IN AREAS
WHERE THE GROUND IS RELATIVELY FREE FROM ROCKS OR STONES.  ORIGINALLY,
THE SHANKS WERE RIGIDLY ATTACHED TO THE PLOW FRAMES.  WHEN SUCH PLOWS
WERE USED IN THE ROCKY, GLACIAL SOILS OF SOME OF THE NORTHERN STATES,
THEY WERE FOUND TO HAVE SERIOUS DEFECTS.  AS THE CHISELS HIT BURIED
ROCKS, A VIBRATORY MOTION WAS SET UP AND TREMENDOUS FORCES WERE
TRANSMITTED TO THE SHANK NEAR ITS CONNECTION TO THE FRAME.  THE SHANKS
WOULD BREAK.  GRAHAM, ONE OF THE PETITIONERS, SOUGHT TO MEET THAT
PROBLEM, AND IN 1950 OBTAINED A PATENT, U.S. NO. 2,493,811 (HEREINAFTER
'811), ON A SPRING CLAMP WHICH SOLVED SOME OF THE DIFFICULTIES.  GRAHAM
AND HIS COMPANIES MANUFACTURED AND SOLD THE '811 CLAMPS.  IN 1950,
GRAHAM MODIFIED THE '811 STRUCTURE AND FILED FOR A PATENT.  THAT
PATENT, THE ONE IN ISSUE, WAS GRANTED IN 1953.  THIS SUIT AGAINST
COMPETING PLOW MANUFACTURERS RESULTED FROM CHARGES BY PETITIONERS THAT
SEVERAL OF RESPONDENTS' DEVICES INFRINGED THE '798 PATENT. 

THE PRIOR ART. 

FIVE PRIOR PATENTS INDICATING THE STATE OF THE ART WERE CITED BY THE
PATENT OFFICE IN THE PROSECUTION OF THE '798 APPLICATION.  FOUR OF
THESE PATENTS, 10 OTHER UNITED STATES PATENTS AND TWO PRIOR-USE SPRING
CLAMP ARRANGEMENTS NOT OF RECORD IN THE '798 FILE WRAPPER WERE RELIED
UPON BY RESPONDENTS AS REVEALING THE PRIOR ART. THE DISTRICT COURT AND
THE COURT OF APPEALS FOUND THAT THE PRIOR ART "AS A WHOLE IN ONE FORM
OR ANOTHER CONTAINS ALL OF THE MECHANICAL ELEMENTS OF THE 798 PATENT." 
ONE OF THE PRIOR-USE CLAMP DEVICES NOT BEFORE THE PATENT EXAMINER -
GLENCOE - WAS FOUND TO HAVE "ALL OF THE ELEMENTS." 

WE CONFINE OUR DISCUSSION TO THE PRIOR PATENT OF GRAHAM, '811, AND TO
THE GLENCOE CLAMP DEVICE, BOTH AMONG THE REFERENCES ASSERTED BY
RESPONDENTS.  THE GRAHAM '811 AND '798 PATENT DEVICES ARE SIMILAR IN
ALL ELEMENTS, SAVE TWO:  (1) THE STIRRUP AND THE BOLTED CONNECTION OF
THE SHANK TO THE HINGE PLATE DO NOT APPEAR IN '811; AND (2) THE
POSITION OF THE SHANK IS REVERSED, BEING PLACED IN PATENT '811 ABOVE
THE HINGE PLATE, SANDWICHED BETWEEN IT AND THE UPPER PLATE.  THE SHANK
IS HELD IN PLACE BY THE SPRING ROD WHICH IS HOOKED AGAINST THE BOTTOM
OF THE HINGE PLATE PASSING THROUGH A SLOT IN THE SHANK.  OTHER
DIFFERENCES ARE OF NO CONSEQUENCE TO OUR EXAMINATION.  IN PRACTICE THE
'811 PATENT ARRANGEMENT PERMITTED THE SHANK TO WOBBLE OR FISHTAIL
BECAUSE IT WAS NOT RIGIDLY FIXED TO THE HINGE PLATE; MOREOVER, AS THE
HINGE PLATE WAS BELOW THE SHANK, THE LATTER CAUSED WEAR ON THE UPPER
PLATE, A MEMBER DIFFICULT TO REPAIR OR REPLACE. 

GRAHAM'S '798 PATENT APPLICATION CONTAINED 12 CLAIMS.  ALL WERE
REJECTED AS NOT DISTINGUISHED FROM THE GRAHAM '811 PATENT.  THE
INVERTED POSITION OF THE SHANK WAS SPECIFICALLY REJECTED AS WAS THE
BOLTING OF THE SHANK TO THE HINGE PLATE.  THE PATENT OFFICE EXAMINER
FOUND THESE TO BE "MATTERS OF DESIGN WELL WITHIN THE EXPECTED SKILL OF
THE ART AND DEVOID OF INVENTION."  GRAHAM WITHDREW THE ORIGINAL CLAIMS
AND SUBSTITUTED THE TWO NEW ONES WHICH ARE SUBSTANTIALLY THOSE IN ISSUE
HERE.  HIS CONTENTION WAS THAT WEAR WAS REDUCED IN PATENT '798 BETWEEN
THE SHANK AND THE HEEL OR REAR OF THE UPPER PLATE.  (FN11)  HE ALSO
EMPHASIZED SEVERAL NEW FEATURES, THE RELEVANT ONE HERE BEING THAT THE
BOLT USED TO CONNECT THE HINGE PLATE AND SHANK MAINTAINED THE UPPER
FACE OF THE SHANK IN CONTINUING AND CONSTANT CONTACT WITH THE UNDERFACE
OF THE HINGE PLATE. 

GRAHAM DID NOT URGE BEFORE THE PATENT OFFICE THE GREATER "FLEXING"
QUALITIES OF THE '798 PATENT ARRANGEMENT WHICH HE SO HEAVILY RELIED ON
IN THE COURTS.  THE SOLE ELEMENT IN PATENT '798 WHICH PETITIONERS ARGUE
BEFORE US IS THE INTERCHANGING OF THE SHANK AND HINGE PLATE AND THE
CONSEQUENCES FLOWING FROM THIS ARRANGEMENT.  THE CONTENTION IS THAT
THIS ARRANGEMENT - WHICH PETITIONERS CLAIM IS NOT DISCLOSED IN THE
PRIOR ART - PERMITS THE SHANK TO FLEX UNDER STRESS FOR ITS ENTIRE
LENGTH.  AS WE HAVE SKETCHED (SEE SKETCH, "GRAHAM '798 PATENT" IN
APPENDIX, FIG. 2 - OMITTED), WHEN THE CHISEL HITS AN OBSTRUCTION THE
RESULTANT FORCE (A) PUSHES THE REAR OF THE SHANK UPWARD AND THE SHANK
PIVOTS AGAINST THE REAR OF THE HINGE PLATE AT (C).  THE NATURAL
TENDENCY IS FOR THAT PORTION OF THE SHANK BETWEEN THE PIVOT POINT AND
THE BOLTED CONNECTION (I.E., BETWEEN C AND D) TO BOW DOWNWARD AND AWAY
FROM THE HINGE PLATE.  THE MAXIMUM DISTANCE (B) THAT THE SHANK MOVES
AWAY FROM THE PLATE IS SLIGHT - FOR EMPHASIS, GREATLY EXAGGERATED IN
THE SKETCHES.  THIS IS SO BECAUSE OF THE STRENGTH OF THE SHANK AND THE
SHORT - NINE INCHES OR SO - LENGTH OF THAT PORTION OF THE SHANK BETWEEN
(C) AND (D).  ON THE CONTRARY, IN PATENT '811 (SEE SKETCH, "GRAHAM '811
PATENT" IN APPENDIX, FIG. 2 - OMITTED), THE PIVOT POINT IS THE UPPER
PLATE AT POINT (C); AND WHILE THE TENDENCY FOR THE SHANK TO BOW BETWEEN
POINTS (C) AND (D) IS THE SAME AS IN '798, THE SHANK IS RESTRICTED
BECAUSE OF THE UNDERLYING HINGE PLATE AND CANNOT FLEX AS FREELY.  IN
PRACTICAL EFFECT, THE SHANK FLEXES ONLY BETWEEN POINTS (A) AND (C), AND
NOT ALONG THE ENTIRE LENGTH OF THE SHANK, AS IN '798.  PETITIONERS SAY
THAT THIS DIFFERENCE IN FLEX, THOUGH SMALL, EFFECTIVELY ABSORBS THE
TREMENDOUS FORCES OF THE SHOCK OF OBSTRUCTIONS WHEREAS PRIOR ART
ARRANGEMENTS FAILED. 

THE OBVIOUSNESS OF THE DIFFERENCES. 

WE CANNOT AGREE WITH PETITIONERS.  WE ASSUME THAT THE PRIOR ART DOES
NOT DISCLOSE SUCH AN ARRANGEMENT AS PETITIONERS CLAIM IN PATENT '798. 
STILL WE DO NOT BELIEVE THAT THE ARGUMENT ON WHICH PETITIONERS'
CONTENTION IS BOTTOMED SUPPORTS THE VALIDITY OF THE PATENT.  THE
TENDENCY OF THE SHANK TO FLEX IS THE SAME IN ALL CASES.  IF FREE
FLEXING, AS PETITIONERS NOW ARGUE, IS THE CRUCIAL DIFFERENCE ABOVE THE
PRIOR ART, THEN IT APPEARS EVIDENT THAT THE DESIRED RESULT WOULD BE
OBTAINABLE BY NOT BOXING THE SHANK WITHIN THE CONFINES OF THE HINGE. 
(FN12)  THE ONLY OTHER EFFECTIVE PLACE AVAILABLE IN THE ARRANGEMENT WAS
TO ATTACH IT BELOW THE HINGE PLATE AND RUN IT THROUGH A STIRRUP OR
BRACKET THAT WOULD NOT DISTURB ITS FLEXING QUALITIES.  CERTAINLY A
PERSON HAVING ORDINARY SKILL IN THE PRIOR ART, GIVEN THE FACT THAT THE
FLEX IN THE SHANK COULD BE UTILIZED MORE EFFECTIVELY IF ALLOWED TO RUN
THE ENTIRE LENGTH OF THE SHANK, WOULD IMMEDIATELY SEE THAT THE THING TO
DO WAS WHAT GRAHAM DID, I.E., INVERT THE SHANK AND THE HINGE PLATE. 

PETITIONERS' ARGUMENT BASING VALIDITY ON THE FREE-FLEX THEORY RAISED
FOR THE FIRST TIME ON APPEAL IS REMINISCENT OF LINCOLN ENGINEERING CO.
V. STEWART-WARNER CORP., 303 U.S. 545 (1938), WHERE THE COURT CALLED
SUCH AN EFFORT "AN AFTERTHOUGHT.  NO SUCH FUNCTION  ...  IS HINTED AT
IN THE SPECIFICATIONS OF THE PATENT.  IF THIS WERE SO VITAL AN ELEMENT
IN THE FUNCTIONING OF THE APPARATUS IT IS STRANGE THAT ALL MENTION OF
IT WAS OMITTED."  AT P. 550.  NO "FLEXING" ARGUMENT WAS RAISED IN THE
PATENT OFFICE.  INDEED, THE TRIAL JUDGE SPECIFICALLY FOUND THAT
"FLEXING IS NOT A CLAIM OF THE PATENT IN SUIT  ...  " AND WOULD NOT
PERMIT INTERROGATION AS TO FLEXING IN THE ACCUSED DEVICES.  MOREOVER,
THE CLEAR TESTIMONY OF PETITIONERS' EXPERTS SHOWS THAT THE FLEXING
ADVANTAGES FLOWING FROM THE '798 ARRANGEMENT ARE NOT, IN FACT, A
SIGNIFICANT FEATURE IN THE PATENT.  (FN13) 

WE FIND NO NONOBVIOUS FACETS IN THE '798 ARRANGEMENT.  THE WEAR AND
REPAIR CLAIMS WERE SUFFICIENT TO OVERCOME THE PATENT EXAMINER'S
ORIGINAL CONCLUSIONS AS TO THE VALIDITY OF THE PATENT.  HOWEVER, SOME
OF THE PRIOR ART, NOTABLY GLENCOE, WAS NOT BEFORE HIM.  THERE THE HINGE
PLATE IS BELOW THE SHANK BUT, AS THE COURTS BELOW FOUND, ALL OF THE
ELEMENTS IN THE '798 PATENT ARE PRESENT IN THE GLENCOE STRUCTURE. 
FURTHERMORE, EVEN THOUGH THE POSITION OF THE SHANK AND HINGE PLATE
APPEARS REVERSED IN GLENCOE, THE MECHANICAL OPERATION IS IDENTICAL. 
THE SHANK THERE PIVOTS ABOUT THE UNDERSIDE OF THE STIRRUP, WHICH IN
GLENCOE IS ABOVE THE SHANK.  IN OTHER WORDS, THE STIRRUP IN GLENCOE
SERVES EXACTLY THE SAME FUNCTION AS THE HEEL OF THE HINGE PLATE IN
'798.  THE MERE SHIFTING OF THE WEAR POINT TO THE HEEL OF THE '798
HINGE PLATE FROM THE STIRRUP OF GLENCOE - ITSELF A PART OF THE HINGE
PLATE - PRESENTS NO OPERATIVE MECHANICAL DISTINCTIONS, MUCH LESS
NONOBVIOUS DIFFERENCES. 

B. THE PATENT IN ISSUE IN NO. 37, CALMAR, INC. V. COOK CHEMICAL CO.,
AND IN NO. 43, COLGATE-PALMOLIVE CO. V. COOK CHEMICAL CO. 

THE SINGLE PATENT  (FN14) INVOLVED IN THESE CASES RELATES TO A
PLASTIC FINGER SPRAYER WITH A "HOLD-DOWN" LID USED AS A BUILT-IN
DISPENSER FOR CONTAINERS OR BOTTLES PACKAGING LIQUID PRODUCTS,
PRINCIPALLY HOUSEHOLD INSECTICIDES.  ONLY THE FIRST TWO OF THE FOUR
CLAIMS IN THE PATENT ARE INVOLVED HERE AND WE, THEREFORE, LIMIT OUR
DISCUSSION TO THEM.  WE DO NOT SET OUT THOSE CLAIMS HERE SINCE THEY ARE
PRINTED IN 220 F. SUPP., AT 417-418. 

IN ESSENCE THE DEVICE HERE COMBINES A FINGER-OPERATED PUMP SPRAYER,
MOUNTED IN A CONTAINER OR BOTTLE BY MEANS OF A CONTAINER CAP, WITH A
PLASTIC OVERCAP WHICH SCREWS OVER THE TOP OF AND DEPRESSES THE SPRAYER
(SEE APPENDIX, FIG. 3 - OMITTED).  THE PUMP SPRAYER PASSES THROUGH THE
CONTAINER CAP AND EXTENDS DOWN INTO THE LIQUID IN THE CONTAINER; THE
OVERCAP FITS OVER THE PUMP SPRAYER AND SCREWS DOWN ON THE OUTSIDE OF A
COLLAR MOUNTING OR RETAINER WHICH IS MOLDED AROUND THE BODY OF THE
SPRAYER.  WHEN THE OVERCAP IS SCREWED DOWN ON THIS COLLAR MOUNTING A
SEAL IS FORMED BY THE ENGAGEMENT OF A CIRCULAR RIDGE OR RIB LOCATED
ABOVE THE THREADS ON THE COLLAR MOUNTING WITH A MATING SHOULDER LOCATED
INSIDE THE OVERCAP ABOVE ITS THREADS.  (FN15)  THE OVERCAP, AS IT IS
SCREWED DOWN, DEPRESSES THE PUMP PLUNGER RENDERING THE PUMP INOPERABLE
AND WHEN THE SEAL IS EFFECTED, ANY LIQUID WHICH MIGHT SEEP INTO THE
OVERCAP THROUGH OR AROUND THE PUMP IS PREVENTED FROM LEAKING OUT OF THE
OVERCAP.  THE OVERCAP SERVES ALSO TO PROTECT THE SPRAYER HEAD AND
PREVENT DAMAGE TO IT DURING SHIPMENT OR MERCHANDISING.  WHEN THE
OVERCAP IS IN PLACE IT DOES NOT REACH THE CAP OF THE CONTAINER OR
BOTTLE AND IN NO WAY ENGAGES IT SINCE A SLIGHT SPACE IS LEFT BETWEEN
THOSE TWO PIECES. 

THE DEVICE, CALLED A SHIPPER-SPRAYER IN THE INDUSTRY, IS SOLD AS AN
INTEGRATED UNIT WITH THE OVERCAP IN PLACE ENABLING THE INSECTICIDE
MANUFACTURER TO INSTALL IT ON THE CONTAINER OR BOTTLE OF LIQUID IN A
SINGLE OPERATION IN AN AUTOMATED BOTTLING PROCESS.  THE ULTIMATE
CONSUMER SIMPLY UNSCREWS AND DISCARDS THE OVERCAP, THE PUMP PLUNGER
SPRINGS UP AND THE SPRAYER IS READY FOR USE. 

THE BACKGROUND OF THE PATENT. 

FOR MANY YEARS MANUFACTURERS ENGAGED IN THE INSECTICIDE BUSINESS HAD
FACED A SERIOUS PROBLEM IN DEVELOPING SPRAYERS THAT COULD BE INTEGRATED
WITH THE CONTAINERS OR BOTTLES IN WHICH THE INSECTICIDES WERE
MARKETED.  ORIGINALLY, INSECTICIDES WERE APPLIED THROUGH THE USE OF TIN
SPRAYERS, NOT SUPPLIED BY THE MANUFACTURER.  IN 1947, COOK CHEMICAL, AN
INSECTICIDE MANUFACTURER, BEGAN TO FURNISH ITS CUSTOMERS WITH PLASTIC
PUMP DISPENSERS PURCHASED FROM CALMAR.  THE DISPENSER WAS AN UNPATENTED
FINGER-OPERATED DEVICE MOUNTED IN A PERFORATED CARDBOARD HOLDER AND
HUNG OVER THE NECK OF THE BOTTLE OR CONTAINER.  IT WAS NECESSARY FOR
THE ULTIMATE CONSUMER TO REMOVE THE CAP OF THE CONTAINER AND INSERT AND
ATTACH THE SPRAYER TO THE LATTER FOR USE. 

HANGING THE SPRAYER ON THE SIDE OF THE CONTAINER OR BOTTLE WAS BOTH
EXPENSIVE AND TROUBLESOME.  PACKAGING FOR SHIPMENT HAD TO BE A HAND
OPERATION, AND BREAKAGE AND PILFERAGE AS WELL AS THE LOSS OF THE
SPRAYER DURING SHIPMENT AND RETAIL DISPLAY OFTEN OCCURRED.  COOK
CHEMICAL URGED CALMAR TO DEVELOP AN INTEGRATED SPRAYER THAT COULD BE
MOUNTED DIRECTLY IN A CONTAINER OR BOTTLE DURING THE AUTOMATED FILLING
PROCESS AND THAT WOULD NOT LEAK DURING SHIPMENT OR RETAIL HANDLING. 
CALMAR DID DEVELOP SOME SUCH DEVICES BUT FOR VARIOUS REASONS THEY WERE
NOT COMPLETELY SUCCESSFUL.  THE SITUATION WAS AGGRAVATED IN 1954 BY THE
ENTRY OF COLGATE-PALMOLIVE INTO THE INSECTICIDE TRADE WITH ITS PRODUCT
MARKETED IN AEROSOL SPRAY CANS.  THESE CONTAINERS, WHICH USED
COMPRESSED GAS AS A PROPELLENT TO DISPENSE THE LIQUID, DID NOT REQUIRE
PUMP SPRAYERS. 

DURING THE SAME YEAR CALMAR WAS ACQUIRED BY THE DRACKETT COMPANY. 
COOK CHEMICAL BECAME APPREHENSIVE OF ITS SOURCE OF SUPPLY FOR PUMP
SPRAYERS AND DECIDED TO MANUFACTURE ITS OWN THROUGH A SUBSIDIARY, BAKAN
PLASTICS, INC. INITIALLY, IT COPIED ITS DESIGN FROM THE UNPATENTED
CALMAR SPRAYER, BUT AN OFFICER OF COOK CHEMICAL, SCOGGIN, WAS ASSIGNED
TO DEVELOP A MORE EFFICIENT DEVICE.  BY 1956 SCOGGIN HAD PERFECTED THE
SHIPPER-SPRAYER IN SUIT AND A PATENT WAS GRANTED IN 1959 TO COOK
CHEMICAL AS HIS ASSIGNEE.  IN THE INTERIM COOK CHEMICAL BEGAN TO USE
SCOGGIN'S DEVICE AND ALSO MARKETED IT TO THE TRADE.  THE DEVICE WAS
WELL RECEIVED AND SOON BECAME WIDELY USED. 

IN THE MEANWHILE, CALMAR EMPLOYED TWO ENGINEERS, CORSETTE AND
COOPRIDER, TO PERFECT A SHIPPER-SPRAYER AND BY 1958 IT BEGAN TO MARKET
ITS SS-40, A DEVICE VERY MUCH SIMILAR TO SCOGGIN'S. WHEN THE SCOGGIN
PATENT ISSUED, COOK CHEMICAL CHARGED CALMAR'S SS-40 WITH INFRINGEMENT
AND THIS SUIT FOLLOWED.    THE OPINIONS OF THE DISTRICT COURT AND THE
COURT OF APPEALS. 

AT THE OUTSET IT IS WELL TO POINT UP THAT THE PARTIES HAVE ALWAYS
DISAGREED AS TO THE SCOPE AND DEFINITION OF THE INVENTION CLAIMED IN
THE PATENT IN SUIT.  COOK CHEMICAL CONTENDS THAT THE INVENTION
ENCOMPASSES A UNIQUE COMBINATION OF ADMITTEDLY OLD ELEMENTS AND THAT
PATENTABILITY IS FOUND IN THE RESULT PRODUCED.  ITS EXPERT TESTIFIED
THAT THE INVENTION WAS "THE FIRST COMMERCIALLY SUCCESSFUL, INEXPENSIVE
INTEGRATED SHIPPING CLOSURE PUMP UNIT WHICH PERMITTED AUTOMATED
ASSEMBLY WITH A CONTAINER OF HOUSEHOLD INSECTICIDE OR SIMILAR LIQUIDS
TO PRODUCE A PRACTICAL, READY-TO-USE PACKAGE WHICH COULD BE SHIPPED
WITHOUT EXTERNAL LEAKAGE AND WHICH WAS SO ORGANIZED THAT THE PUMP UNIT
WITH ITS HOLD-DOWN CAP COULD BE ITSELF ASSEMBLED AND SEALED AND THEN
LATER ASSEMBLED AND SEALED ON THE CONTAINER WITHOUT BREAKING THE FIRST
SEAL."  COOK CHEMICAL STRESSES THE LONG-FELT NEED IN THE INDUSTRY FOR
SUCH A DEVICE; THE INABILITY OF OTHERS TO PRODUCE IT; AND ITS
COMMERCIAL SUCCESS - ALL OF WHICH, CONTENDS COOK, EVIDENCES THE
NONOBVIOUS NATURE OF THE DEVICE AT THE TIME IT WAS DEVELOPED.   ON THE
OTHER HAND, CALMAR SAYS THAT THE DIFFERENCES BETWEEN SCOGGIN'S SHIPPER
SPRAYER AND THE PRIOR ART RELATE ONLY TO THE DESIGN OF THE OVERCAP AND
THAT THE DIFFERENCES ARE SO INCONSEQUENTIAL THAT THE DEVICE AS A WHOLE
WOULD HAVE BEEN OBVIOUS AT THE TIME OF ITS INVENTION TO A PERSON HAVING
ORDINARY SKILL IN THE ART. 

BOTH COURTS ACCEPTED COOK CHEMICAL'S CONTENTIONS.  WHILE THE EXACT
BASIS OF THE DISTRICT COURT'S HOLDING IS UNCERTAIN, THE COURT DID FIND
THE SUBJECT MATTER OF THE PATENT NEW, USEFUL AND NONOBVIOUS.  IT
CONCLUDED THAT SCOGGIN "HAD PRODUCED A SEALED AND PROTECTED SPRAYER
UNIT WHICH THE MANUFACTURER NEED ONLY SCREW ONTO THE TOP OF ITS
CONTAINER IN MUCH THE SAME FASHION AS A SIMPLE METAL CAP."  220 F.
SUPP., AT 418.  ITS DECISION SEEMS TO BE BOTTOMED ON THE FINDING THAT
THE SCOGGIN SPRAYER SOLVED THE LONG-STANDING PROBLEM THAT HAD
CONFRONTED THE INDUSTRY.  (FN16)  THE COURT OF APPEALS ALSO FOUND
VALIDITY IN THE "NOVEL 'MARRIAGE' OF THE SPRAYER WITH THE INSECTICIDE
CONTAINER" WHICH TOOK YEARS IN DISCOVERY AND IN "THE IMMEDIATE
COMMERCIAL SUCCESS" WHICH IT ENJOYED.   WHILE FINDING THAT THE
INDIVIDUAL ELEMENTS OF THE INVENTION WERE "NOT NOVEL PER SE" THE COURT
FOUND "NOTHING IN THE PRIOR ART SUGGESTING SCOGGIN'S UNIQUE COMBINATION
OF THESE OLD FEATURES  ...  AS WOULD SOLVE THE ...  PROBLEMS WHICH FOR
YEARS BESET THE INSECTICIDE INDUSTRY."  IT CONCLUDED THAT "THE  ...
DEVICE MEETS THE EXACTING STANDARD REQUIRED FOR A COMBINATION OF OLD
ELEMENTS TO RISE TO THE LEVEL OF PATENTABLE INVENTION BY FULFILLING THE
LONG-FELT NEED WITH AN ECONOMICAL, EFFICIENT, UTILITARIAN APPARATUS
WHICH ACHIEVED NOVEL RESULTS AND IMMEDIATE COMMERCIAL SUCCESS."  336
F.2D, AT 114. 

THE PRIOR ART. 

ONLY TWO OF THE FIVE PRIOR ART PATENTS CITED BY THE PATENT OFFICE
EXAMINER IN THE PROSECUTION OF SCOGGIN'S APPLICATION ARE NECESSARY TO
OUR DISCUSSION, I.E., LOHSE U.S. PATENT NO. 2,119,884 (1938) AND MELLON
U.S. PATENT NO. 2,586,687 (1952).  OTHERS ARE CITED BY CALMAR THAT WERE
NOT BEFORE THE EXAMINER, BUT OF THESE OUR PURPOSES REQUIRE DISCUSSION
OF ONLY THE LIVINGSTONE U.S. PATENT NO. 2,715,480 (1953).  SIMPLIFIED
DRAWINGS OF EACH OF THESE PATENTS ARE REPRODUCED IN THE APPENDIX,
FIGS.  4-6 (OMITTED), FOR COMPARISON AND DESCRIPTION. 

THE LOHSE PATENT (FIG. 4 - OMITTED) IS A SHIPPER-SPRAYER DESIGNED TO
PERFORM THE SAME FUNCTION AS SCOGGIN'S DEVICE.  THE DIFFERENCES,
RECOGNIZED BY THE DISTRICT COURT, ARE FOUND IN THE OVERCAP SEAL WHICH
IN LOHSE IS FORMED BY THE SKIRT OF THE OVERCAP ENGAGING A WASHER OR
GASKET WHICH RESTS UPON THE UPPER SURFACE OF THE CONTAINER CAP.  THE
COURT EMPHASIZED THAT IN LOHSE "THERE ARE NO SEALS ABOVE THE THREADS
AND BELOW THE SPRAYER HEAD."  200 F. SUPP., AT 419. 

THE MELLON PATENT (FIG. 5 - OMITTED), HOWEVER, DISCLOSES THE IDEA OF
EFFECTING A SEAL ABOVE THE THREADS OF THE OVERCAP.  MELLON'S DEVICE,
LIKEWISE A SHIPPER-SPRAYER, DIFFERS FROM SCOGGIN'S IN THAT ITS OVERCAP
SCREWS DIRECTLY ON THE CONTAINER, AND A GASKET, RATHER THAN A RIB, IS
USED TO EFFECT THE SEAL. 

FINALLY, LIVINGSTONE (FIG. 6 - OMITTED) SHOWS A SEAL ABOVE THE
THREADS ACCOMPLISHED WITHOUT THE USE OF A GASKET OR WASHER.  (FN17)
ALTHOUGH LIVINGSTONE'S ARRANGEMENT WAS DESIGNED TO COVER AND PROTECT
POURING SPOUTS, HIS SEALING FEATURE IS STRIKINGLY SIMILAR TO SCOGGIN'S.
LIVINGSTONE USES A TONGUE AND GROOVE TECHNIQUE IN WHICH THE TONGUE,
LOCATED ON THE UPPER SURFACE OF THE COLLAR, FITS INTO A GROOVE ON THE
INSIDE OF THE OVERCAP.  SCOGGIN EMPLOYED THE RIB AND SHOULDER SEAL IN
THE IDENTICAL POSITION AND WITH LESS EFFICIENCY BECAUSE THE LIVINGSTONE
TECHNIQUE IS INHERENTLY A MORE STABLE STRUCTURE, FORMING AN INTERLOCK
THAT WITHSTANDS DISTORTION OF THE OVERCAP WHEN SUBJECTED TO ROUGH
HANDLING.  INDEED, COOK CHEMICAL HAS NOW INCORPORATED THE LIVINGSTONE
CLOSURE INTO ITS OWN SHIPPER-SPRAYERS AS HAD CALMAR IN ITS SS-40. 

THE INVALIDITY OF THE PATENT. 

LET US FIRST RETURN TO THE FUNDAMENTAL DISAGREEMENT BETWEEN THE
PARTIES.  COOK CHEMICAL, AS WE NOTED AT THE OUTSET, URGES THAT THE
INVENTION MUST BE VIEWED AS THE OVERALL COMBINATION, OR - PUTTING IT IN
THE LANGUAGE OF THE STATUTE - THAT WE MUST CONSIDER THE SUBJECT MATTER
SOUGHT TO BE PATENTED TAKEN AS A WHOLE.  WITH THIS POSITION, TAKEN IN
THE ABSTRACT, THERE IS, OF COURSE, NO QUIBBLE.  BUT THE HISTORY OF THE
PROSECUTION OF THE SCOGGIN APPLICATION IN THE PATENT OFFICE REVEALS A
SUBSTANTIAL DIVERGENCE IN RESPONDENT'S PRESENT POSITION. 

AS ORIGINALLY SUBMITTED, THE SCOGGIN APPLICATION CONTAINED 15 CLAIMS
WHICH IN VERY BROAD TERMS CLAIMED THE ENTIRE COMBINATION OF SPRAY PUMP
AND OVERCAP.  NO MENTION OF, OR CLAIM FOR, THE SEALING FEATURES WAS
MADE.  ALL 15 CLAIMS WERE REJECTED BY THE EXAMINER BECAUSE (1) THE
APPLICANT WAS VAGUE AND INDEFINITE AS TO WHAT THE INVENTION WAS, AND
(2) THE CLAIMS WERE MET BY LOHSE.  SCOGGIN CANCELED THESE CLAIMS AND
SUBMITTED NEW ONES.  UPON A FURTHER SERIES OF REJECTIONS AND NEW
SUBMISSIONS, THE PATENT OFFICE EXAMINER, AFTER AN OFFICE INTERVIEW, AT
LAST RELENTED.  IT IS CRYSTAL CLEAR THAT AFTER THE FIRST REJECTION,
SCOGGIN RELIED ENTIRELY UPON THE SEALING ARRANGEMENT AS THE EXCLUSIVE
PATENTABLE DIFFERENCE IN HIS COMBINATION.  IT IS LIKEWISE CLEAR THAT IT
WAS ON THAT FEATURE THAT THE EXAMINER ALLOWED THE CLAIMS.  IN FACT, IN
A LETTER ACCOMPANYING THE FINAL SUBMISSION OF CLAIMS, SCOGGIN, THROUGH
HIS ATTORNEY, STATED THAT "AGREEMENT WAS REACHED BETWEEN THE HONORABLE
EXAMINER AND APPLICANT'S ATTORNEY RELATIVE TO LIMITATIONS WHICH MUST BE
IN THE CLAIMS IN ORDER TO DEFINE NOVELTY OVER THE PREVIOUSLY APPLIED
DISCLOSURE OF LOHSE WHEN CONSIDERED IN VIEW OF THE NEWLY CITED PATENTS
OF MELLON AND DARLEY, JR." 

MOREOVER, THOSE LIMITATIONS WERE SPECIFICALLY SPELLED OUT AS (1) THE
USE OF A RIB SEAL AND (2) AN OVERCAP WHOSE LOWER EDGE DID NOT CONTACT
THE CONTAINER CAP.  MELLON WAS DISTINGUISHED, AS WAS THE DARLEY PATENT,
INFRA, N. 18, ON THE BASIS THAT ALTHOUGH IT DISCLOSED A HOLD-DOWN CAP
WITH A SEAL LOCATED ABOVE THE THREADS, IT DID NOT DISCLOSE A RIB SEAL
DISPOSED IN SUCH POSITION AS TO CAUSE THE LOWER PERIPHERAL EDGE OF THE
OVERCAP "TO BE MAINTAINED OUT OF CONTACTING RELATIONSHIP WITH THE
CONTAINER CAP  ...  WHEN  ...  THE OVERCAP WAS SCREWED ON TIGHTLY  ...
."  SCOGGIN MAINTAINED THAT THE "OBVIOUS MODIFICATION" OF LOHSE IN VIEW
OF MELLON WOULD BE MERELY TO PLACE THE LOHSE GASKET ABOVE THE THREADS
WITH THE LOWER EDGE OF THE OVERCAP REMAINING IN TIGHT CONTACT WITH THE
CONTAINER CAP OR NECK OF THE CONTAINER ITSELF.  IN OTHER WORDS, THE
SCOGGIN INVENTION WAS LIMITED TO THE USE OF A RIB - RATHER THAN A
WASHER OR GASKET - AND THE EXISTENCE OF A SLIGHT SPACE BETWEEN THE
OVERCAP AND THE CONTAINER CAP. 

IT IS, OF COURSE, WELL SETTLED THAT AN INVENTION IS CONSTRUED NOT
ONLY IN THE LIGHT OF THE CLAIMS, BUT ALSO WITH REFERENCE TO THE FILE
WRAPPER OR PROSECUTION HISTORY IN THE PATENT OFFICE.  HOGG V. EMERSON,
11 HOW.  587 (1850); CRAWFORD V. HEYSINGER, 123 U.S. 589 (1887). 
CLAIMS AS ALLOWED MUST BE READ AND INTERPRETED WITH REFERENCE TO
REJECTED ONES AND TO THE STATE OF THE PRIOR ART; AND CLAIMS THAT HAVE
BEEN NARROWED IN ORDER TO OBTAIN THE ISSUANCE OF A PATENT BY
DISTINGUISHING THE PRIOR ART CANNOT BE SUSTAINED TO COVER THAT WHICH
WAS PREVIOUSLY BY LIMITATION ELIMINATED FROM THE PATENT.  POWERS
KENNEDY CO. V. CONCRETE CO., 282 U.S. 175, 185-186 (1930); SCHRIBER CO.
V. CLEVELAND TRUST CO., 311 U.S. 211, 220-221 (1940). 

HERE, THE PATENTEE OBTAINED HIS PATENT ONLY BY ACCEPTING THE
LIMITATIONS IMPOSED BY THE EXAMINER.  THE CLAIMS WERE CAREFULLY DRAFTED
TO REFLECT THESE LIMITATIONS AND COOK CHEMICAL IS NOT NOW FREE TO
ASSERT A BROADER VIEW OF SCOGGIN'S INVENTION.  THE SUBJECT MATTER AS A
WHOLE REDUCES, THEN, TO THE DISTINGUISHING FEATURES CLEARLY
INCORPORATED INTO THE CLAIMS.  WE NOW TURN TO THOSE FEATURES. 

AS TO THE SPACE BETWEEN THE SKIRT OF THE OVERCAP AND THE CONTAINER
CAP, THE DISTRICT COURT FOUND: 

"CERTAINLY WITHOUT A SPACE SO DESCRIBED, THERE COULD BE NO INNER SEAL
WITHIN THE CAP, BUT SUCH A SPACE IS NOT NEW OR NOVEL, BUT IT IS
NECESSARY TO THE FORMATION OF THE SEAL WITHIN THE HOLD-DOWN CAP. 

"TO ME THIS LANGUAGE IS DESCRIPTIVE OF AN ELEMENT OF THE PATENT BUT
NOT A PART OF THE INVENTION.  IT IS TOO SIMPLE, REALLY, TO REQUIRE MUCH
DISCUSSION.  IN THIS DEVICE THE HOLD-DOWN CAP WAS INTENDED TO PERFORM
TWO FUNCTIONS - TO HOLD DOWN THE SPRAYER HEAD AND TO FORM A SOLID TIGHT
SEAL BETWEEN THE SHOULDER AND THE COLLAR BELOW.  IN ASSEMBLING THE
ELEMENT IT IS NECESSARY TO PROVIDE THIS SPACE IN ORDER TO FORM THE
SEAL."  220 F. SUPP, AT 420. 

THE COURT CORRECTLY VIEWED THE SIGNIFICANCE OF THAT FEATURE.  WE ARE
AT A LOSS TO EXPLAIN THE EXAMINER'S ALLOWANCE ON THE BASIS OF SUCH A
DISTINCTION.  SCOGGIN WAS ABLE TO CONVINCE THE EXAMINER THAT MELLON'S
CAP CONTACTED THE BOTTLE NECK WHILE HIS DID NOT.  ALTHOUGH THE DRAWINGS
INCLUDED IN THE MELLON APPLICATION SHOW THAT THE CAP MIGHT TOUCH THE
NECK OF THE BOTTLE WHEN FULLY SCREWED DOWN, THERE IS NOTHING -
ABSOLUTELY NOTHING - WHICH INDICATES THAT THE CAN WAS DESIGNED AT ANY
TIME TO ENGAGE THE BOTTLE NECK.  IT IS PALPABLY EVIDENT THAT MELLON
EMBODIES A SEAL FORMED BY A GASKET COMPRESSED BETWEEN THE CAP AND THE
BOTTLE NECK.  IT FOLLOWS THAT THE CAP IN MELLON WILL NOT SEAL IF IT
DOES NOT BEAR DOWN ON THE GASKET AND THIS WOULD BE IMPRACTICAL, IF NOT
IMPOSSIBLE, UNDER THE CONSTRUCTION URGED BY SCOGGIN BEFORE THE
EXAMINER.  MOREOVER, THE SPACE SO STRONGLY ASSERTED BY COOK CHEMICAL
APPEARS QUITE PLAINLY ON THE LIVINGSTONE DEVICE, A REFERENCE NOT CITED
BY THE EXAMINER. 

THE SUBSTITUTION OF A RIB BUILT INTO A COLLAR LIKEWISE PRESENTS NO
PATENTABLE DIFFERENCE ABOVE THE PRIOR ART. IT WAS FULLY DISCLOSED AND
DEDICATED TO THE PUBLIC IN THE LIVINGSTONE PATENT.  COOK CHEMICAL
ARGUES, HOWEVER, THAT LIVINGSTONE IS NOT IN THE PERTINENT PRIOR ART
BECAUSE IT RELATES TO LIQUID CONTAINERS HAVING POURING SPOUTS RATHER
THAN PUMP SPRAYERS.  APART FROM THE FACT THAT RESPONDENT MADE NO SUCH
OBJECTION TO SIMILAR REFERENCES CITED BY THE EXAMINER,  (FN18) SO
RESTRICTED A VIEW OF THE APPLICABLE PRIOR ART IS NOT JUSTIFIED.  THE
PROBLEMS CONFRONTING SCOGGIN AND THE INSECTICIDE INDUSTRY WERE NOT
INSECTICIDE PROBLEMS; THEY WERE MECHANICAL CLOSURE PROBLEMS.  CLOSURE
DEVICES IN SUCH A CLOSELY RELATED ART AS POURING SPOUTS FOR LIQUID
CONTAINERS ARE AT THE VERY LEAST PERTINENT REFERENCES.  SEE, II WALKER
ON PATENTS SEC. 260 (DELLER ED. 1937). 

COOK CHEMICAL INSISTS, HOWEVER, THAT THE DEVELOPMENT OF A WORKABLE
SHIPPER-SPRAYER ELUDED CALMAR, WHO HAD LONG AND UNSUCCESSFULLY SOUGHT
TO SOLVE THE PROBLEM.  AND, FURTHER, THAT THE LONG-FELT NEED IN THE
INDUSTRY FOR A DEVICE SUCH AS SCOGGIN'S TOGETHER WITH ITS WIDE
COMMERCIAL SUCCESS SUPPORTS ITS PATENTABILITY.  THESE LEGAL INFERENCES
OR SUBTESTS DO FOCUS ATTENTION ON ECONOMIC AND MOTIVATIONAL RATHER THAN
TECHNICAL ISSUES AND ARE, THEREFORE, MORE SUSCEPTIBLE OF JUDICIAL
TREATMENT THAN ARE THE HIGHLY TECHNICAL FACTS OFTEN PRESENT IN PATENT
LITIGATION.  SEE JUDGE LEARNED HAND IN REINER V. I. LEON CO., 285 F.2D
501, 504 (1960).  SEE ALSO NOTE, SUBTESTS OF "NONOBVIOUSNESS":  A
NONTECHNICAL APPROACH TO PATENT VALIDITY, 112 U. PA. L. REV. 1169
(1964).  SUCH INQUIRIES MAY LEND A HELPING HAND TO THE JUDICIARY WHICH,
AS MR. JUSTICE FRANKFURTER OBSERVED, IS MOST ILL-FITTED TO DISCHARGE
THE TECHNOLOGICAL DUTIES CAST UPON IT BY PATENT LEGISLATION.  MARCONI
WIRELESS CO. V. UNITED STATES, 320 U.S. 1, 60 (1943).  THEY MAY ALSO
SERVE TO "GUARD AGAINST SLIPPING INTO USE OF HINDSIGHT," MONROE AUTO
EQUIPMENT CO. V. HECKETHORN MFG. & SUP. CO., 332 F.2D 406, 412 (1964),
AND TO RESIST THE TEMPTATION TO READ INTO THE PRIOR ART THE TEACHINGS
OF THE INVENTION IN ISSUE. 

HOWEVER, THESE FACTORS DO NOT, IN THE CIRCUMSTANCES OF THIS CASE, TIP
THE SCALES OF PATENTABILITY.   THE SCOGGIN INVENTION, AS LIMITED BY THE
PATENT OFFICE AND ACCEPTED BY SCOGGIN, RESTS UPON EXCEEDINGLY SMALL AND
QUITE NONTECHNICAL MECHANICAL DIFFERENCES IN A DEVICE WHICH WAS OLD IN
THE ART.  AT THE LATEST, THOSE DIFFERENCES WERE RENDERED APPARENT IN
1953 BY THE APPEARANCE OF THE LIVINGSTONE PATENT, AND UNSUCCESSFUL
ATTEMPTS TO REACH A SOLUTION TO THE PROBLEMS CONFRONTING SCOGGIN MADE
BEFORE THAT TIME BECAME WHOLLY IRRELEVANT.  IT IS ALSO IRRELEVANT THAT
NO ONE APPARENTLY CHOSE TO AVAIL HIMSELF OF KNOWLEDGE STORED IN THE
PATENT OFFICE AND READILY AVAILABLE BY THE SIMPLE EXPEDIENT OF
CONDUCTING A PATENT SEARCH - A PRUDENT AND NOWADAYS COMMON PRELIMINARY
TO WELL ORGANIZED RESEARCH.  MAST, FOOS & CO. V. STOVER MFG. CO., 177
U.S. 485 (1900).  TO US, THE LIMITED CLAIMS OF THE SCOGGIN PATENT ARE
CLEARLY EVIDENT FROM THE PRIOR ART AS IT STOOD AT THE TIME OF THE
INVENTION.   WE CONCLUDE THAT THE CLAIMS IN ISSUE IN THE SCOGGIN PATENT
MUST FALL AS NOT MEETING THE TEST OF SEC. 103, SINCE THE DIFFERENCES
BETWEEN THEM AND THE PERTINENT PRIOR ART WOULD HAVE BEEN OBVIOUS TO A
PERSON REASONABLY SKILLED IN THAT ART. 

THE JUDGMENT OF THE COURT OF APPEALS IN NO. 11 IS AFFIRMED.  THE
JUDGMENT OF THE COURT OF APPEALS IN NOS. 37 AND 43 IS REVERSED AND THE
CASES REMANDED TO THE DISTRICT COURT FOR DISPOSITION NOT INCONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE PROVISION APPEARS IN THE CONSTITUTION SPLICED TOGETHER WITH
THE COPYRIGHT PROVISION, WHICH WE OMIT AS NOT RELEVANT HERE.  SEE H.R.
REP. NO. 1923, 82D CONG., 2D SESS., AT 4 (1952); DEWOLF, AN OUTLINE OF
COPYRIGHT LAW, P. 15 (BOSTON, 1925). 

FN2  "STABLE OWNERSHIP IS THE GIFT OF SOCIAL LAW, AND IS GIVEN LATE
IN THE PROGRESS OF SOCIETY.  IT WOULD BE CURIOUS THEN, IF AN IDEA, THE
FUGITIVE FERMENTATION OF AN INDIVIDUAL BRAIN, COULD, OF NATURAL RIGHT,
BE CLAIMED IN EXCLUSIVE AND STABLE PROPERTY.  IF NATURE HAS MADE ANY
ONE THING LESS SUSCEPTIBLE THAN ALL OTHERS OF EXCLUSIVE PROPERTY, IT IS
THE ACTION OF THE THINKING POWER CALLED AN IDEA, WHICH AN INDIVIDUAL
MAY EXCLUSIVELY POSSESS AS LONG AS HE KEEPS IT TO HIMSELF; BUT THE
MOMENT IT IS DIVULGED, IT FORCES ITSELF INTO THE POSSESSION OF EVERY
ONE, AND THE RECEIVER CANNOT DISPOSSESS HIMSELF OF IT.  ITS PECULIAR
CHARACTER, TOO, IS THAT NO ONE POSSESSES THE LESS, BECAUSE EVERY OTHER
POSSESSES THE WHOLE OF IT.  HE WHO RECEIVES AN IDEA FROM ME, RECEIVES
INSTRUCTION HIMSELF WITHOUT LESSENING MINE; AS HE WHO LIGHTS HIS TAPER
AT MINE, RECEIVES LIGHT WITHOUT DARKENING ME.  THAT IDEAS SHOULD FREELY
SPREAD FROM ONE TO ANOTHER OVER THE GLOBE, FOR THE MORAL AND MUTUAL
INSTRUCTION OF MAN, AND IMPROVEMENT OF HIS CONDITION, SEEMS TO HAVE
BEEN PECULIARLY AND BENEVOLENTLY DESIGNED BY NATURE, WHEN SHE MADE
THEM, LIKE FIRE, EXPANSIBLE OVER ALL SPACE, WITHOUT LESSENING THEIR
DENSITY IN ANY POINT, AND LIKE THE AIR IN WHICH WE BREATHE, MOVE, AND
HAVE OUR PHYSICAL BEING, INCAPABLE OF CONFINEMENT OR EXCLUSIVE
APPROPRIATION.  INVENTIONS THEN CANNOT, IN NATURE, BE A SUBJECT OF
PROPERTY.  SOCIETY MAY GIVE AN EXCLUSIVE RIGHT TO THE PROFITS ARISING
FROM THEM, AS AN ENCOURAGEMENT TO MEN TO PURSUE IDEAS WHICH MAY PRODUCE
UTILITY, BUT THIS MAY OR MAY NOT BE DONE, ACCORDING TO THE WILL AND
CONVENIENCE OF THE SOCIETY, WITHOUT CLAIM OR COMPLAINT FROM ANY BODY." 
VI WRITINGS OF THOMAS JEFFERSON, AT 180-181 (WASHINGTON ED.). 

FN3  "A MACHINE OF WHICH WE ARE POSSESSED, MIGHT BE APPLIED BY EVERY
MAN TO ANY USE OF WHICH IT IS SUSCEPTIBLE."  LETTER TO ISAAC MCPHERSON,
SUPRA, AT 181. 

"A CHANGE OF MATERIAL SHOULD NOT GIVE TITLE TO A PATENT.  AS THE
MAKING A PLOUGHSHARE OF CAST RATHER THAN OF WROUGHT IRON; A COMB OF
IRON INSTEAD OF HORN OR OF IVORY  ...  ."  IBID. 

"A MERE CHANGE OF FORM SHOULD GIVE NO RIGHT TO A PATENT, AS A HIGH
QUARTERED SHOE INSTEAD OF A LOW ONE; A ROUND HAT INSTEAD OF A THREE
SQUARE; OR A SQUARE BUCKET INSTEAD OF A ROUND ONE."  ID., AT 181-182. 

"A COMBINED USE OF OLD IMPLEMENTS.  A MAN HAS A RIGHT TO USE A SAW,
AN AXE, A PLANE SEPARATELY; MAY HE NOT COMBINE THEIR USES ON THE SAME
PIECE OF WOOD?"  LETTER TO OLIVER EVANS (JAN. 1814), VI WRITINGS OF
THOMAS JEFFERSON, AT 298 (WASHINGTON ED.). 

FN4  IN HISTORICAL RETROSPECT, THE SPECIFIC RESULT IN HOTCHKISS FLOWS
DIRECTLY FROM AN APPLICATION OF ONE OF THE RULES OF THE ORIGINAL BOARD
OF "COMMISSIONERS," N. 3, SECOND RULE, SUPRA. 

FN5  "SEC.  101.  INVENTIONS PATENTABLE: 

"WHOEVER INVENTS OR DISCOVERS ANY NEW AND USEFUL PROCESS, MACHINE,
MANUFACTURE, OR COMPOSITION OF MATTER, OR ANY NEW AND USEFUL
IMPROVEMENT THEREOF, MAY OBTAIN A PATENT THEREFOR, SUBJECT TO THE
CONDITIONS AND REQUIREMENTS OF THIS TITLE." 

"SEC. 102.  CONDITIONS FOR PATENTABILITY; NOVELTY AND LOSS OF RIGHT
TO PATENT: 

"A PERSON SHALL BE ENTITLED TO A PATENT UNLESS: 

"(A)  THE INVENTION WAS KNOWN OR USED BY OTHERS IN THIS COUNTRY, OR
PATENTED OR DESCRIBED IN A PRINTED PUBLICATION IN THIS OR A FOREIGN
COUNTRY, BEFORE THE INVENTION THEREOF BY THE APPLICANT FOR PATENT, OR: 

"(B)  THE INVENTION WAS PATENTED OR DESCRIBED IN A PRINTED
PUBLICATION IN THIS OR A FOREIGN COUNTRY OR IN PUBLIC USE OR ON SALE IN
THIS COUNTRY, MORE THAN ONE YEAR PRIOR TO THE DATE OF THE APPLICATION
FOR PATENT IN THE UNITED STATES, OR: 

"(C)  HE HAS ABANDONED THE INVENTION, OR: 

"(D)  THE INVENTION WAS FIRST PATENTED OR CAUSED TO BE PATENTED BY
THE APPLICANT OR HIS LEGAL REPRESENTATIVES OR ASSIGNS IN A FOREIGN
COUNTRY PRIOR TO THE DATE OF THE APPLICATION FOR PATENT IN THIS COUNTRY
ON AN APPLICATION FILED MORE THAN TWELVE MONTHS BEFORE THE FILING OF
THE APPLICATION IN THE UNITED STATES, OR: 

"(E)  THE INVENTION WAS DESCRIBED IN A PATENT GRANTED ON AN
APPLICATION FOR PATENT BY ANOTHER FILED IN THE UNITED STATES BEFORE THE
INVENTION THEREOF BY THE APPLICANT FOR PATENT, OR: 

"(F)  HE DID NOT HIMSELF INVENT THE SUBJECT MATTER SOUGHT TO BE
PATENTED, OR: 

"(G)  BEFORE THE APPLICANT'S INVENTION THEREOF THE INVENTION WAS MADE
IN THIS COUNTRY BY ANOTHER WHO HAD NOT ABANDONED, SUPPRESSED, OR
CONCEALED IT.  IN DETERMINING PRIORITY OF INVENTION THERE SHALL BE
CONSIDERED NOT ONLY THE RESPECTIVE DATES OF CONCEPTION AND REDUCTION TO
PRACTICE OF THE INVENTION, BUT ALSO THE REASONABLE DILIGENCE OF ONE WHO
WAS FIRST TO CONCEIVE AND LAST TO REDUCE TO PRACTICE, FROM A TIME PRIOR
TO CONCEPTION BY THE OTHER." 

THE PRECURSORS OF THESE SECTIONS ARE TO BE FOUND IN THE ACT OF
FEBRUARY 21, 1793, C. 11, 1 STAT. 318; ACT OF JULY 4, 1836, C. 357, 5
STAT. 117; ACT OF JULY 8, 1870, C. 230, 16 STAT. 198; REV. STAT. SEC.
4886 (1874). 

FN6  THE CORRESPONDING PROVISION IN THE PRELIMINARY DRAFT WAS TITLED
"CONDITIONS FOR PATENTABILITY, LACK OF INVENTION, PROPOSED REVISION AND
AMENDMENT OF THE PATENT LAWS, PRELIMINARY DRAFT WITH NOTES, HOUSE
COMMITTEE ON THE JUDICIARY (COMMITTEE PRINT, 1950). 

FN7  THE SENTENCE IN WHICH THE PHRASE OCCURS READS:  "THE NEW DEVICE,
HOWEVER USEFUL IT MAY BE, MUST REVEAL THE FLASH OF CREATIVE GENIUS, NOT
MERELY THE SKILL OF THE CALLING."  AT P. 91.  ALTHOUGH SOME WRITERS AND
LOWER COURTS FOUND IN THE LANGUAGE CONNOTATIONS AS TO THE FRAME OF MIND
OF THE INVENTORS, NONE WERE SO INTENDED.  THE OPINION APPROVED
HOTCHKISS SPECIFICALLY, AND THE REFERENCE TO "FLASH OF CREATIVE GENIUS"
WAS BUT A RHETORICAL EMBELLISHMENT OF LANGUAGE GOING BACK TO 1833.  CF.
"EXERCISE OF GENIUS," SHAW V. COOPER, 7 PET. 292; "INVENTIVE GENIUS,"
RECKENDORFER V. FABER, 92 U.S. 347 (1876); CONCRETE APPLIANCES CO. V.
GOMERY, 269 U.S. 177; "FLASH OF THOUGHT," DENSMORE V. SCOFIELD, 102
U.S. 375 (1880); "INTUITIVE GENIUS," POTTS V. CREAGER, 155 U.S. 597
(1895).  RATHER THAN ESTABLISHING A MORE EXACTING STANDARD, CUNO MERELY
RHETORICALLY RESTATED THE REQUIREMENT THAT THE SUBJECT MATTER SOUGHT TO
BE PATENTED MUST BE BEYOND THE SKILL OF THE CALLING.  IT WAS THE
DEVICE, NOT THE INVENTION, THAT HAD TO REVEAL THE "FLASH OF CREATIVE
GENIUS."  SEE BOYAJIAN, THE FLASH OF CREATIVE GENIUS, AN ALTERNATIVE
INTERPRETATION, 25 J. PAT.  OFF.  SOC. 776, 780, 781 (1943); PACIFIC
CONTACT LABORATORIES, INC. V. SOLEX LABORATORIES, INC., 209 F.2D 529,
533; BROWN & SHARPE MFG. CO. V. KAR ENGINEERING CO., 154 F.2D 48, 51
52; IN RE SHORTELL, 31 C.C.P.A. (PAT.)  1062, 1069, 142 F.2D 292, 295
296. 

FN8  "THERE IS NO PROVISION CORRESPONDING TO THE FIRST SENTENCE
EXPLICITLY STATED IN THE PRESENT STATUTES, BUT THE REFUSAL OF PATENTS
BY THE PATENT OFFICE, AND THE HOLDING OF PATENTS INVALID BY THE COURTS,
ON THE GROUND OF LACK OF INVENTION OR LACK OF PATENTABLE NOVELTY HAS
BEEN FOLLOWED SINCE AT LEAST AS EARLY AS 1850.  THIS PARAGRAPH IS ADDED
WITH THE VIEW THAT AN EXPLICIT STATEMENT IN THE STATUTE MAY HAVE SOME
STABILIZING EFFECT, AND ALSO TO SERVE AS A BASIS FOR THE ADDITION AT A
LATER TIME OF SOME CRITERIA WHICH MAY BE WORKED OUT. 

"THE SECOND SENTENCE STATES THAT PATENTABILITY AS TO THIS REQUIREMENT
IS NOT TO BE NEGATIVED BY THE MANNER IN WHICH THE INVENTION WAS MADE,
THAT IS, IT IS IMMATERIAL WHETHER IT RESULTED FROM LONG TOIL AND
EXPERIMENTATION OR FROM A FLASH OF GENIUS." 

FN9  SEE EFFORTS TO ESTABLISH A STATUTORY STANDARD OF INVENTION,
STUDY NO. 7, SENATE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND
COPYRIGHTS, 85TH CONG., 1ST SESS. (COMMITTEE PRINT, 1958); HEARINGS,
SUBCOMMITTEE NO. 3, HOUSE COMMITTEE ON THE JUDICIARY, ON H.R. 3760, 82D
CONG., 1ST SESS. (1951). 

FN10  THE PRESIDENT HAS APPOINTED A COMMISSION ON THE PATENT SYSTEM. 
EXECUTIVE ORDER NO. 11215, 30 FED. REG. 4661 (APRIL 10, 1965).  IT IS
HOPED THAT ITS STUDIES MAY DEVELOP MORE EFFICIENT ADMINISTRATIVE
PROCEDURES AND TECHNIQUES THAT WILL FURTHER EXPEDITE DISPOSITIONS AND
AT THE SAME TIME INSURE THE STRICT APPLICATION OF APPROPRIATE TESTS OF
PATENTABILITY. 

FN11  IN '811, WHERE THE SHANK WAS ABOVE THE HINGE PLATE, AN UPWARD
MOVEMENT OF THE CHISEL FORCED THE SHANK UP AGAINST THE UNDERSIDE OF THE
REAR OF THE UPPER PLATE.  THE UPPER PLATE THUS PROVIDED THE FULCRUM
ABOUT WHICH THE HINGE WAS PRIED OPEN.  BECAUSE OF THIS, AS WELL AS THE
LOCATION OF THE HINGE PIN, THE SHANK RUBBED AGAINST THE HEEL OF THE
UPPER PLATE CAUSING WEAR BOTH TO THE PLATE AND TO THE SHANK.  BY
RELOCATING THE HINGE PIN AND BY PLACING THE HINGE PLATE BETWEEN THE
SHANK AND THE UPPER PLATE, AS IN '798, THE RUBBING WAS ELIMINATED AND
THE WEAR POINT WAS CHANGED TO THE HINGE PLATE, A MEMBER MORE EASILY
REMOVED OR REPLACED FOR REPAIR. 

FN12  EVEN PETITIONERS' EXPERT TESTIFIED TO THAT EFFECT: 

"Q.  GIVEN THE SAME LENGTH OF THE FORWARD PORTION OF THE CLAMP  ...
YOU WOULD ANTICIPATE THAT THE MAGNITUDE OF FLEX IN '798 WOULD BE
PRECISELY THE SAME OR SUBSTANTIALLY THE SAME AS IN 811, WOULDN'T YOU? 

"A.  I WOULD THINK SO." 

FN13  "Q.  ...  DO YOU REGARD THE SMALL DEGREE OF FLEX IN THE FORWARD
END OF THE SHANK THAT LIES BETWEEN THE PIVOT POINT AND THE POINT OF
SPRING ATTACHMENT TO BE OF ANY SIGNIFICANCE OR ANY IMPORTANCE TO THE
FUNCTIONING OF A DEVICE SUCH AS 798?  A. UNLESS YOU ARE APPROACHING THE
ELASTIC LIMIT, I THINK THIS FLEXING WILL REDUCE THE MAXIMUM STRESS AT
THE POINT OF PIVOT THERE, WHERE THE MAXIMUM STRESS DOES OCCUR.  I THINK
IT WILL REDUCE THAT.  I DON'T KNOW HOW MUCH. 

"Q.  DO YOU THINK IT IS A SUBSTANTIAL FACTOR, A FACTOR OF IMPORTANCE
IN THE FUNCTIONING OF THE STRUCTURE?  A. NOT A GREAT FACTOR, NO." 

THE SAME EXPERT PREVIOUSLY TESTIFIED SIMILARLY IN JEOFFROY MFG., INC.
V. GRAHAM, 219 F.2D 511. 

FN14  THE PATENT IS U.S. NO. 2,870,943 ISSUED IN 1959 TO COOK
CHEMICAL CO. AS ASSIGNEE OF BAXTER I. SCOGGIN, JR., THE INVENTOR.  IN
NO. 37, CALMAR IS THE MANUFACTURER OF AN ALLEGED INFRINGING DEVICE,
AND, IN NO. 43, COLGATE IS A CUSTOMER OF CALMAR AND USER OF ITS
DEVICE. 

FN15  OUR DISCUSSION HERE RELATES TO THE OVERCAP SEAL.  THE CONTAINER
ITSELF IS SEALED IN THE CUSTOMARY WAY THROUGH THE USE OF A CONTAINER
GASKET LOCATED BETWEEN THE CONTAINER AND THE CONTAINER CAP. 

FN16  "BY THE SAME REASONING, MAY IT NOT ALSO BE SAID THAT IF THE
DEVICE SOLVED A LONG-SOUGHT NEED, IT WAS LIKEWISE NOVEL?  IF IT MEETS
THE REQUIREMENTS OF BEING NEW, NOVEL AND USEFUL, IT WAS THE SUBJECT OF
INVENTION, ALTHOUGH IT MAY HAVE BEEN A SHORT STEP, NEVERTHELESS IT WAS
THE LAST STEP THAT ENDED THE JOURNEY.  THE LAST STEP IS THE ONE THAT
WINS AND HE WHO TAKES IT WHEN OTHERS COULD NOT, IS ENTITLED TO PATENT
PROTECTION."  220 F. SUPP., AT 421. 

FN17  WHILE THE SEALING FEATURE WAS NOT SPECIFICALLY CLAIMED IN THE
LIVINGSTONE PATENT, IT WAS DISCLOSED IN THE DRAWINGS AND
SPECIFICATIONS.  UNDER LONG-SETTLED LAW THE FEATURE BECAME PUBLIC
PROPERTY.  MILLER V. BRASS CO., 104 U.S. 350, 352 (1882). 

FN18  IN ADDITION TO LIVINGSTONE AND MELLON, THE EXAMINER CITED
SLADE, U.S. PATENT NO. 2,844,290 (HOLD-DOWN CAP FOR DETERGENT CANS
HAVING A POURING SPOUT); NILSON, U.S. PATENT NO. 2,118,222 (COMBINED
CAP AND SPOUT FOR LIQUID DISPENSING CONTAINERS); DARLEY, JR., U.S.
PATENT NO. 1,447,712 (CONTAINERS FOR TOOTHPASTE, COLD CREAMS AND OTHER
SEMI-LIQUID SUBSTANCES). 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
NOS. 37 AND 43. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :








UNITED STATES V. ADAMS 383 U.S. 39 


NO. 55.  ARGUED OCTOBER 14, 1965.  - DECIDED FEBRUARY 21, 1966.  - 165
CT. CL. 576, 330 F.2D 622, AFFIRMED. 


RESPONDENTS SUED THE GOVERNMENT UNDER 28 U.S.C. SEC 1498 CHARGING
INFRINGEMENT AND BREACH OF CONTRACT TO COMPENSATE FOR USE OF A WET
BATTERY ON WHICH A PATENT HAD BEEN ISSUED TO RESPONDENT ADAMS.  THE
BATTERY CONSISTED OF A MAGNESIUM ELECTRODE (ANODE) AND A CUPROUS
CHLORIDE ELECTRODE (CATHODE) PLACED IN A CONTAINER WITH WATER TO BE
SUPPLIED AS THE ELECTROLYTE, PROVIDING A CONSTANT VOLTAGE AND CURRENT
WITHOUT THE USE OF ACIDS.  DESPITE INITIAL DISBELIEF IN THE BATTERY'S
EFFICACY BY GOVERNMENT EXPERTS TO WHOSE ATTENTION ADAMS BROUGHT HIS
INVENTION THE GOVERNMENT ULTIMATELY (BUT WITHOUT NOTIFYING ADAMS) PUT
THE BATTERY TO MANY USES.  IN OPPOSITION TO RESPONDENTS' SUIT THE
GOVERNMENT CLAIMED THE DEVICE UNPATENTABLE BECAUSE THE USE OF MAGNESIUM
AND CUPROUS CHLORIDE TO PERFORM THE FUNCTION SHOWN BY ADAMS HAD BEEN
PREVIOUSLY WELL KNOWN IN THE ART AND THEIR COMBINATION REPRESENTED NO
SIGNIFICANT CHANGE COMPARED TO THE PRIOR ART WET BATTERY DESIGNS SUCH
AS THOSE USING A ZINC ANODE AND SILVER CHLORIDE CATHODE FOR WHICH
MAGNESIUM AND CUPROUS CHLORIDE WERE KNOWN SUBSTITUTES.  THE COURT OF
CLAIMS ADOPTED THE TRIAL COMMISSIONER'S FINDING THAT THE PATENT WAS
VALID AND INFRINGED BY SOME OF THE ACCUSED DEVICES.  SIX MONTHS LATER,
FOLLOWING RESPONDENTS' MOTION TO AMEND THE JUDGMENT, THAT COURT FOUND
NO BREACH OF CONTRACT.  MORE THAN 90 DAYS AFTER THE INITIAL JUDGMENT
BUT LESS THAN THAT PERIOD AFTER THE CONTRACT DECISION, THE GOVERNMENT
SOUGHT A TIME EXTENSION FOR REVIEW AS TO THE ISSUE OF PATENT VALIDITY. 
SUCH REVIEW WAS LATER GRANTED THOUGH SERVICE ON RESPONDENTS OF THE
PETITION FOR WRIT OF CERTIORARI WAS DELAYED BEYOND THE TIME PRESCRIBED
BY THIS COURT'S RULES.  HELD: 

1.  THE PETITION FOR CERTIORARI WAS TIMELY, SINCE THE 90-DAY FILING
PERIOD COMMENCED, NOT WITH THE INITIAL JUDGMENT, BUT WITH THE JUDGMENT
ON THE CONTRACT ISSUE; NOR DID FAILURE TO COMPLY WITH THE COURT'S RULES
AS TO SERVICE OF THE PETITION BAR THIS REVIEW SINCE THE SERVICE
REQUIREMENTS THEREIN ARE NOT JURISDICTIONAL, AND NO PREJUDICE RESULTED
FROM THE GOVERNMENT'S INADVERTENT FAILURE TO MEET THOSE REQUIREMENTS. 
PP. 41-42. 

2.  THE ADMAS PATENT IS VALID SINCE IT SATISFIED THE SEPARATE TESTS
OF NOVELTY, NONOBVIOUSNESS, AND UTILITY REQUIRED FOR ISSUANCE OF A
PATENT.  GRAHAM V. JOHN DEERE CO., ANTE, P. 1 PP. 48-52. 

3.  THE ADAMS BATTERY WAS NOVEL.  PP. 48-51. 

(A)  THE FACT THAT IT WAS WATER-ACTIVATED SET IT APART FROM THE PRIOR
ART. SINCLAIR & CARROLL CO. V. INTERCHEMICAL CORP., 325 U.S. 327,
DISTINGUISHED.  PP. 48-50. 

(B)  THE COMBINATION OF MAGNESIUM AND CUPROUS CHLORIDE WAS NOVEL IN
THE LIGHT OF THE PRIOR ART. P. 50. 

(C)  THE USE OF MAGNESIUM FOR ZINC AND CUPROUS CHLORIDE FOR SILVER
CHLORIDE DID NOT INVOLVE MERELY EQUIVALENT SUBSTITUTES, AS IS EVIDENCED
BY THE FACT THAT THE ADAMS BATTERY HAD DIFFERENT OPERATING
CHARACTERISTICS FROM THOSE OF THE BATTERIES RELIED UPON BY THE
GOVERNMENT.  PP. 50-51. 

4.  THE ADAMS BATTERY WAS NONOBVIOUS.  PP. 51-52. 

(A)  THOUGH EACH OF THE BATTERY'S ELEMENTS WAS WELL KNOWN IN THE
PRIOR ART, TO COMBINE THEM AS ADAMS DID REQUIRED THAT A PERSON
REASONABLY SKILLED IN THAT ART IGNORE THAT OPEN-CIRCUIT BATTERIES WHICH
HEATED IN NORMAL USE WERE NOT PRACTICAL AND THAT WATER-ACTIVATED
BATTERIES WERE SUCCESSFUL ONLY WHEN COMBINED WITH ELECTROLYTES HARMFUL
TO THE USE OF MAGNESIUM.  PP. 51-52. 

(B)  NOTED EXPERTS HAD EXPRESSED INITIAL DISBELIEF IN THE ADAMS
BATTERY.  P. 52. 

(C)  IN A CROWDED ART REPLETE WITH A CENTURY AND A HALF OF ADVANCE
THE PATENT OFFICE COULD FIND NO REFERENCE TO CITE AGAINST THE ADAMS
APPLICATION.  P. 52. 

UNITED STATES V. ADAMS ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 11, GRAHAM V. JOHN DEERE CO., DECIDED
THIS DAY ALONG WITH NOS. 37 AND 43, CALMAR, INC. V. COOK CHEMICAL CO.
AND COLGATE-PALMOLIVE CO. V. COOK CHEMICAL CO. THE UNITED STATES SEEKS
REVIEW OF A JUDGMENT OF THE COURT OF CLAIMS, HOLDING VALID AND
INFRINGED A PATENT ON A WET BATTERY ISSUED TO ADAMS.  THIS SUIT UNDER
28 U.S.C. SEC 1498 (1964 ED.)  WAS BROUGHT BY ADAMS AND OTHERS HOLDING
AN INTEREST IN THE PATENT AGAINST THE GOVERNMENT CHARGING BOTH
INFRINGEMENT AND BREACH OF AN IMPLIED CONTRACT TO PAY COMPENSATION FOR
THE USE OF THE INVENTION.  THE GOVERNMENT CHALLENGED THE VALIDITY OF
THE PATENT, DENIED THAT IT HAD BEEN INFRINGED OR THAT ANY CONTRACT FOR
ITS USE HAD EVER EXISTED.  THE TRIAL COMMISSIONER HELD THAT THE PATENT
WAS VALID AND INFRINGED IN PART BUT THAT NO CONTRACT, EXPRESS OR
IMPLIED, HAD BEEN ESTABLISHED.  THE COURT OF CLAIMS ADOPTED THESE
FINDINGS, INITIALLY REACHING ONLY THE PATENT QUESTIONS, 165 CT. CL.
576, 330 F.2D 622, BUT SUBSQUENTLY, ON RESPONDENTS' MOTION TO AMEND THE
JUDGMENT, DECIDING THE CONTRACT CLAIMS AS WELL.  165 CT. CL., AT 598. 
THE UNITED STATES SOUGHT CERTIORARI ON THE PATENT VALIDITY ISSUE ONLY. 
WE GRANTED THE WRIT, ALONG WITH THE OTHERS, IN ORDER TO SETTLE THE
IMPORTANT ISSUES OF PATENTABILITY PRESENTED BY THE FOUR CASES.  380
U.S. 949.  WE AFFIRM. 

       I. 

WHILE THIS CASE IS CONTROLLED ON THE MERITS BY NO. 11, GRAHAM, ANTE,
P. 1, RESPONDENTS HAVE RAISED THRESHOLD ISSUES AS TO OUR JURISDICTION
WHICH REQUIRE SEPARATE HANDLING.  THEY SAY THAT THE PETITION FOR
CERTIORARI CAME TOO LATE, CONTENDING THAT THE 90-DAY PERIOD FOR FILING
BEGAN WITH THE DATE OF THE INITIAL JUDGMENT RATHER THAN THE DATE OF THE
DECISION ON THE CONTRACT ISSUE, CITING F.T.C. V. MINNEAPOLIS-HONEYWELL
CO., 344 U.S. 206 (1952).  WE CANNOT AGREE; FIRST, BECAUSE THAT CASE
DID NOT INVOLVE A TIMELY MOTION TO AMEND THE JUDGMENT  (FN1) AND,
SECONDLY, BECAUSE HERE THE GOVERNMENT'S LIABILITY WAS INEXTRICABLY
LINKED WITH THE ALLEGED CONTRACT ACTION WHICH WAS NOT DETERMINED UNTIL
THE LATTER JUDGMENT. 

NOR IS THERE MERIT IN RESPONDENTS' CONTENTION THAT THE GOVERNMENT
FAILED TO COMPLY WITH THE REQUIREMENTS OF OUR RULES 21(1) AND 33 AS TO
SERVICE, SINCE THESE REQUIREMENTS ARE NOT JURISDICTIONAL, NO PREJUDICE
RESULTED AND THE FAILURE WAS INADVERTENT. 

WE TURN NOW TO THE MERITS. 

                                       II. 

THE PATENT IN ISSUE AND ITS BACKGROUND. 

THE PATENT UNDER CONSIDERATION, U.S. NO. 2,322,210, WAS ISSUED IN
1943 UPON AN APPLICATION FILED IN DECEMBER 1941 BY ADAMS.  IT RELATES
TO A NONRECHARGEABLE, AS OPPOSED TO A STORAGE, ELECTRICAL BATTERY. 
STATED SIMPLY, THE BATTERY COMPRISES TWO ELECTRODES - ONE MADE OF
MAGNESIUM, THE OTHER OF CUPROUS CHLORIDE - WHICH ARE PLACED IN A
CONTAINER.  THE ELECTROLYTE, OR BATTERY FLUID, USED MAY BE EITHER PLAIN
OR SALT WATER. 

THE SPECIFICATIONS OF THE PATENT STATE THAT THE OBJECT OF THE
INVENTION IS TO PROVIDE CONSTANT VOLTAGE AND CURRENT WITHOUT THE USE OF
ACIDS, CONVENTIONALLY EMPLOYED IN STORAGE BATTERIES, AND WITHOUT THE
GENERATION OF DANGEROUS FUMES.  ANOTHER OBJECT IS "TO PROVIDE A BATTERY
WHICH IS RELATIVELY LIGHT IN WEIGHT WITH RESPECT TO CAPACITY" AND WHICH
"MAY BE MANUFACTURED AND DISTRIBUTED TO THE TRADE IN A DRY CONDITION
AND RENDERED SERVICEABLE BY MERELY FILLING THE CONTAINER WITH WATER." 
FOLLOWING THE SPECIFICATIONS, WHICH ALSO SET OUT A SPECIFIC EMBODIMENT
OF THE INVENTION, THERE APPEAR 11 CLAIMS.  OF THESE, PRINCIPAL RELIANCE
HAS BEEN PLACED UPON CLAIMS 1 AND 10, WHICH READ: 

"1.  A BATTERY COMPRISING A LIQUID CONTAINER, A MAGNESIUM
ELECTROPOSITIVE ELECTRODE INSIDE THE CONTAINER AND HAVING AN EXTERIOR
TERMINAL, A FUSED CUPROUS CHLORIDE ELECTRONEGATIVE ELECTRODE, AND A
TERMINAL CONNECTED WITH SAID ELECTRONEGATIVE ELECTRODE." 

"10.  IN A BATTERY, THE COMBINATION OF A MAGNESIUM ELECTROPOSITIVE
ELECTRODE, AND AN ELECTRONEGATIVE ELECTRODE COMPRISING CUPROUS CHLORIDE
FUSED WITH A CARBON CATALYTIC AGENT." 

FOR SEVERAL YEARS PRIOR TO FILING HIS APPLICATION FOR THE PATENT,
ADAMS HAD WORKED IN HIS HOME EXPERIMENTING ON THE DEVELOPMENT OF A WET
BATTERY.  HE FOUND THAT WHEN CUPROUS CHLORIDE AND MAGNESIUM WERE USED
AS ELECTRODES IN AN ELECTROLYTE OF EITHER PLAIN OR SALT WATER AN
IMPROVED BATTERY RESULTED. 

THE ADAMS INVENTION WAS THE FIRST PRACTICAL, WATERACTIVATED, CONSTANT
POTENTIAL BATTERY WHICH COULD BE FABRICATED AND STORED INDEFINITELY
WITHOUT ANY FLUID IN ITS CELLS.  IT WAS ACTIVATED WITHIN 30 MINUTES
MERELY BY ADDING WATER.  ONCE ACTIVATED, THE BATTERY CONTINUED TO
DELIVER ELECTRICITY AT A VOLTAGE WHICH REMAINED ESSENTIALLY CONSTANT
REGARDLESS OF THE RATE AT WHICH CURRENT WAS WITHDRAWN.   FURTHERMORE,
ITS CAPACITY FOR GENERATING CURRENT WAS EXCEPTIONALLY LARGE IN
COMPARISON TO ITS SIZE AND WEIGHT.  THE BATTERY WAS ALSO QUITE
EFFICIENT IN THAT SUBSTANTIALLY ITS FULL CAPACITY COULD BE OBTAINED
OVER A WIDE RANGE OF CURRENTS.  ONE DISADVANTAGE, HOWEVER, WAS THAT
ONCE ACTIVATED THE BATTERY COULD NOT BE SHUT OFF; THE CHEMICAL
REACTIONS IN THE BATTERY CONTINUED EVEN THOUGH CURRENT WAS NOT
WITHDRAWN.  NEVERTHELESS, THESE CHEMICAL REACTIONS WERE HIGHLY
EXOTHERMIC, LIBERATING LARGE QUANTITIES OF HEAT DURING OPERATION.  AS A
RESULT, THE BATTERY PERFORMED WITH LITTLE EFFECT ON ITS VOLTAGE OR
CURRENT IN VERY LOW TEMPERATURES.  RELATIVELY HIGH TEMPERATURES WOULD
NOT DAMAGE THE BATTERY.  CONSEQUENTLY, THE BATTERY WAS OPERABLE FROM 65
DEGREES BELOW ZERO FAHRENHEIT TO 200 DEGREES FAHRENHEIT.  SEE FINDINGS
AT 165 CT. CL., AT 591-592, 330 F.2D, AT 632. 

LESS THAN A MONTH AFTER FILING FOR HIS PATENT, ADAMS BROUGHT HIS
DISCOVERY TO THE ATTENTION OF THE ARMY AND NAVY.  ARRANGEMENTS WERE
QUICKLY MADE FOR DEMONSTRATIONS BEFORE THE EXPERTS OF THE UNITED STATES
ARMY SIGNAL CORPS.  THE SIGNAL CORPS SCIENTISTS WHO OBSERVED THE
DEMONSTRATIONS AND WHO CONDUCTED FURTHER TESTS THEMSELVES DID NOT
BELIEVE THE BATTERY WAS WORKABLE.  ALMOST A YEAR LATER, IN DECEMBER
1942, DR. GEORGE VINAL, AN EMINENT GOVERNMENT EXPERT WITH THE NATIONAL
BUREAU OF STANDARDS, STILL EXPRESSED DOUBTS.  HE FELT THAT ADAMS WAS
MAKING "UNUSUALLY LARGE CLAIMS" FOR "HIGH WATT HOUR OUTPUT PER UNIT
WEIGHT," AND HE FOUND "FAR FROM CONVINCING" THE GRAPHICAL DATA
SUBMITTED BY THE INVENTOR SHOWING THE BATTERY'S CONSTANT VOLTAGE AND
CAPACITY CHARACTERISTICS.  HE RECOMMENDED, "UNTIL THE INVENTOR CAN
PRESENT MORE CONVINCING DATA ABOUT THE PERFORMANCE OF HIS BATTERY CELL,
I SEE NO REASON TO CONSIDER IT FURTHER." 

HOWEVER, IN NOVEMBER 1943, AT THE HEIGHT OF WORLD WAR II, THE SIGNAL
CORPS CONCLUDED THAT THE BATTERY WAS FEASIBLE.  THE GOVERNMENT
THEREAFTER ENTERED INTO CONTRACTS WITH VAROUS BATTERY COMPANIES FOR ITS
PROCUREMENT.  THE BATTERY WAS FOUND ADAPTABLE TO MANY USES.  INDEED, BY
1956 IT WAS NOTED THAT "THERE CAN BE NO DOUBT THAT THE ADDITION OF
WATER ACTIVATED BATTERIES TO THE FAMILY OF POWER SOURCES HAS BROUGHT
ABOUT DEVELOPMENTS WHICH WOULD OTHERWISE HAVE BEEN TECHNICALLY OR
ECONOMICALLY IMPRACTICAL."  SEE TENTH ANNUAL BATTERY RESEARCH AND
DEVELOPMENT CONFERENCE, SIGNAL CORPS ENGINEERING LABORATORIES, FORT
MONMOUTH, N.J., P. 25 (1956).  ALSO, SEE FINDING NO. 24, 165 CT. CL.,
AT 592, 330 F.2D, AT 632. 

SUPPRISINGLY, THE GOVERNMENT DID NOT NOTIFY ADAMS OF ITS CHANGED
VIEWS NOR OF THE USE TO WHICH IT WAS PUTTING HIS DEVICE, DESPITE HIS
REPEATED REQUESTS.  IN 1955, UPON EXAMINATION OF A BATTERY PRODUCED FOR
THE GOVERNMENT BY THE BURGESS COMPANY, HE FIRST LEARNED OF THE
GOVERNMENT'S ACTION.  HIS REQUEST FOR COMPENSATION WAS DENIED IN 1960,
RESULTING IN THIS SUIT. 

                                   III. 

THE PRIOR ART. 

THE BASIC IDEA OF CHEMICAL GENERATION OF ELECTRICITY IS, OF COURSE,
QUITE OLD.  BATTERIES TRACE BACK TO THE EPIC DISCOVERY BY THE ITALIAN
SCIENTIST VOLTA IN 1795, WHO FOUND THAT WHEN TWO DISSIMILAR METALS ARE
PLACED IN AN ELECTRICALLY CONDUCTIVE FLUID AN ELECTROMOTIVE FORCE IS
SET UP AND ELECTRICITY GENERATED.  ESSENTIALLY, THE BASIC ELEMENTS OF A
CHEMICAL BATTERY ARE A PAIR OF ELECTODES OF DIFFERENT ELECTROCHEMICAL
PROPERTIES AND AN ELECTROLYTE WHICH IS EITHER A LIQUID (IN "WET"
BATTERIES) OR A MOIST PASTE OF VARIOUS SUBSTANCES (IN THE SO-CALLED
"DRY-CELL" BATTERIES).  VARIOUS MATERIALS WHICH MAY BE EMPLOYED AS
ELECTRODES, VARIOUS ELECTROLYTE POSSIBILITIES AND MANY COMBINATIONS OF
THESE ELEMENTS HAVE BEEN THE OBJECT OF CONSIDERABLE EXPERIMENT FOR
ALMOST 175 YEARS.   SEE GENERALLY, VINAL, PRIMARY BATTERIES (NEW YORK
1950). 

AT TRIAL, THE GOVERNMENT INTRODUCED IN EVIDENCE 24 PATENTS AND
TREATISES AS REPRESENTING THE ART AS IT STOOD IN 1938, THE TIME OF THE
ADAMS INVENTION.  (FN2)  HERE, HOWEVER, THE GOVERNMENT HAS RELIED
PRIMARILY UPON ONLY SIX OF THESE REFERENCES  (FN3) WHICH WE MAY
SUMMARIZE AS FOLLOWS. 

THE NIAUDET TREATISE DESCRIBES THE MARIE DAVY CELL INVENTED IN 1860
AND DE LA RUE'S VARIATIONS ON IT.  THE BATTERY COMPRISES A ZINC ANODE
AND A SILVER CHLORIDE CATHODE.  ALTHOUGH IT SEEMS TO HAVE BEEN CAPABLE
OF WORKING IN AN ELECTROLYTE OF PURE WATER, NIAUDET SAYS THE BATTERY
WAS OF "LITTLE INTEREST" UNTIL DE LA RUE USED A SOLUTION OF AMMONIUM
CHLORIDE AS AN ELECTROLYTE.  NIAUDET ALSO STATES THAT "THE CAPITAL
ADVANTAGE OF THIS BATTERY, AS IN ALL WHERE ZINC WITH SAL AMMONIAC
(AMMONIUM CHLORIDE SOLUTION) IS USED, CONSISTS IN THE ABSENCE OF ANY
LOCAL OR INTERNAL ACTION AS LONG AS THE ELECTRIC CIRCUIT IS OPEN; IN
OTHER WORDS, THIS BATTERY DOES NOT WORK UPON ITSELF."  HAYES LIKEWISE
DISCLOSES THE DE LA RUE ZINC-SILVER CHLORIDE CELL, BUT WITH CERTAIN
MECHANICAL DIFFERENCES DESIGNED TO RESTRICT THE BATTERY FROM CONTINUING
TO ACT UPON ITSELF. 

THE WOOD PATENT IS RELIED UPON BY THE GOVERNMENT AS TEACHING THE
SUBSTITUTION OF MAGNESIUM, AS IN THE ADAMS PATENT, FOR ZINC.  WOOD'S
PATENT, ISSUED IN 1928, STATES:  "IT WOULD SEEM THAT A RELATIVELY HIGH
VOLTAGE PRIMARY CELL WOULD BE OBTAINED BY USING  ...  MAGNESIUM AS THE
... POSITIVE ELECTRODE AND I AM AWARE THAT ATTEMPTS HAVE BEEN MADE TO
DEVELOP SUCH A CELL.  AS FAR AS I AM AWARE, HOWEVER, THESE HAVE ALL
BEEN UNSUCCESSFUL, AND IT HAS BEEN GENERALLY ACCEPTED THAT MAGNESIUM
COULD NOT BE COMMERCIALLY UTILIZED AS A PRIMARY CELL ELECTRODE."  WOOD
RECOGNIZED THAT THE DIFFICULTY WITH MAGNESIUM ELECTRODES IS THEIR
SUSCEPTIBILITY TO CHEMICAL CORROSION BY THE ACTION OF ACID OR AMMONIUM
CHLORIDE ELECTROLYTES.  WOOD'S SOLUTION TO THIS PROBLEM WAS TO USE A
"NEUTRAL ELECTROLYTE CONTAINING THE STRONG SOLUBLE OXIDIZING AGENT
ADAPTED TO REDUCE THE RATE OF CORROSION OF THE MAGNESIUM ELECTRODE ON
OPEN CIRCUIT."  THERE IS NO INDICATION OF ITS USE WITH CUPROUS
CHLORIDE, NOR WAS THERE ANY INDICATION THAT A MAGNESIUM BATTERY COULD
BE WATER-ACTIVATED. 

THE CODD TREATISE IS ALSO CITED AS AUTHORITY FOR THE SUBSTITUTION OF
MAGNESIUM.  HOWEVER, CODD SIMPLY LISTS MAGNESIUM IN AN ELECTROMOTIVE
SERIES TABLE, A TABULATION OF ELECTROCHEMICAL SUBSTANCES IN DESCENDING
ORDER OF THEIR RELATIVE ELECTROPOSITIVITY.  HE ALSO REFERS TO MAGNESIUM
IN AN EXAMPLE DESIGNED TO SHOW THAT VARIOUS SUBSTANCES ARE MORE
ELECTROPOSITIVE THAN OTHERS, BUT THE DISCUSSION INVOLVES A CELL
CONTAINING AN ACID WHICH WOULD DESTROY MAGNESIUM WITHIN MINUTES.  IN
SHORT, CODD INDICATES, BY INFERENCE, ONLY THAT MAGNESIUM IS A
THEORETICALLY DESIRABLE ELECTRODE BY VIRTUE OF ITS HIGHLY
ELECTROPOSITIVE CHARACTER.  HE DOES NOT TEACH THAT MAGNESIUM COULD BE
COMBINED IN A WATER-ACTIVATED BATTERY OR THAT A BATTERY USING MAGNESIUM
WOULD HAVE THE PROPERTIES OF THE ADAMS DEVICE.  NOR DOES HE SUGGEST, AS
THE GOVERNMENT INDICATES, THAT CUPROUS CHLORIDE COULD BE SUBSTITUTED
FOR SILVER CHLORIDE.  HE MERELY REFERS TO THE CUPROUS ION - A GENERIC
TERM WHICH INCLUDES AN INFINITE NUMBER OF COPPER COMPOUNDS - AND IN NO
WAY SUGGESTS THAT CUPROUS CHLORIDE COULD BE EMPLOYED IN A BATTERY. 

THE GOVERNMENT THEN CITES THE WENSKY PATENT WHICH WAS ISSUED IN GREAT
BRITAIN IN 1891.  THE PATENT RELATES TO THE USE OF CUPROUS CHLORIDE AS
A DEPOLARIZING AGENT.  THE SPECIFICATIONS OF HIS PATENT DISCLOSE A
BATTERY COMPRISING ZINC AND COPPER ELECTRODES, THE CUPROUS CHLORIDE
BEING ADDED AS A SALT IN AN ELECTROLYTE SOLUTION CONTAINING ZINC
CHLORIDE AS WELL.  WHILE WENSKY RECOGNIZED THAT CUPROUS CHLORIDE COULD
BE USED IN A CONSTANT-CURRENT CELL, THERE IS NO INDICATION THAT HE
TAUGHT A WATER-ACTIVATED SYSTEM OR THAT MAGNESIUM COULD BE INCORPORATED
IN HIS BATTERY. 

FINALLY, THE SKRIVANOFF PATENT DEPENDED UPON BY THE GOVERNMENT
RELATES TO A BATTERY DESIGNED TO GIVE INTERMITTENT, AS OPPOSED TO
CONTINUOUS, SERVICE.  WHILE THE PATENT CLAIMS MAGNESIUM AS AN
ELECTRODE, IT SPECIFIES THAT THE ELECTROLYTE TO BE USED IN CONJUNCTION
WITH IT MUST BE A SOLUTION OF "ALCOLINE, CHLORO-CHROMATE, OR A
PERMANGANATE STRENGTHENED WITH SULPHURIC ACID."  THE CATHODE WAS A
COPPER OR CARBON ELECTRODE FACED WITH A PASTE OF "PHOSPHORIC ACID,
AMORPHOUS PHOSPHOROUS, METALLIC COPPER IN SPANGLES, AND CUPROUS
CHLORIDE."  THIS PASTE IS TO BE MIXED WITH HOT SULFURIC ACID BEFORE
APPLYING TO THE ELECTRODE.  THE GOVERNMENT'S EXPERT TESTIFIED IN TRIAL
THAT HE HAD NO INFORMATION AS TO WHETHER THE CATHODE, AS PLACED IN THE
BATTERY, WOULD, AFTER HAVING BEEN MIXED WITH THE OTHER CHEMICALS
PRESCRIBED, ACTUALLY CONTAIN CUPROUS CHLORIDE.  FURTHERMORE,
RESPONDENTS' EXPERT TESTIFIED, WITHOUT CONTRADICTION, THAT HE HAD
ATTEMPTED TO ASSEMBLE A BATTERY MADE IN ACCORDANCE WITH SKRIVANOFF'S
TEACHINGS, BUT WAS MET FIRST WITH A FIRE WHEN HE SOUGHT TO MAKE THE
CATHODE, AND THEN WITH AN EXPLOSION WHEN HE ATTEMPTED TO ASSEMBLE THE
COMPLETE BATTERY.                                              IV. 

THE VALIDITY OF THE PATENT.    THE GOVERNMENT CHALLENGES THE VALIDITY
OF THE ADAMS PATENT ON GROUNDS OF LACK OF NOVELTY UNDER 35 U.S.C. SEC
102(A) (1964 ED.)  AS WELL AS OBVIOUSNESS UNDER 35 U.S.C. SEC 103 (1964
ED.).  AS WE HAVE SEEN IN GRAHAM V. JOHN DEERE CO., ANTE, P. 1, NOVELTY
AND NONOBVIOUSNESS - AS WELL AS UTILITY - ARE SEPARATE TESTS OF
PATENTABILITY AND ALL MUST BE SATISFIED IN A VALID PATENT. 

THE GOVERNMENT CONCLUDES THAT WET BATTERIES COMPRISING A ZINC ANODE
AND SILVER CHLORIDE CATHODE ARE OLD IN THE ART; AND THAT THE PRIOR ART
SHOWS THAT MAGNESIUM MAY BE SUBSTITUTED FOR ZINC AND CUPROUS CHLORIDE
FOR SILVER CHLORIDE.  HENCE, IT ARGUES THAT THE "COMBINATION OF
MAGNESIUM AND CUPROUS CHLORIDE IN THE ADAMS BATTERY WAS NOT PATENTABLE
BECAUSE IF REPRESENTED EITHER NO CHANGE OR AN INSIGNIFICANT CHANGE AS
COMPARED TO PRIOR BATTERY DESIGNS."  AND, DESPITE "THE FACT THAT,
WHOLLY UNEXPECTEDLY, THE BATTERY SHOWED CERTAIN VALUABLE OPERATING
ADVANTAGES OVER OTHER BATTERIES THESE ADVANTAGES WOULD CERTAINLY NOT
JUSTIFY A PATENT ON THE ESSENTIALLY OLD FORMULA." 

THERE ARE SEVERAL BASIC ERRORS IN THE GOVERNMENT'S POSITION.  FIRST,
THE FACT THAT THE ADAMS BATTERY IS WATER-ACTIVATED SETS HIS DEVICE
APART FROM THE PRIOR ART. IT IS TRUE THAT CLAIMS 1 AND 10, SUPRA, DO
NOT MENTION A WATER ELECTROLYTE, BUT, AS WE HAVE NOTED, A STATED OBJECT
OF THE INVENTION WAS TO PROVIDE A BATTERY RENDERED SERVICEABLE BY THE
MERE ADDITION OF WATER.  WHILE THE CLAIMS OF A PATENT LIMIT THE
INVENTION, AND SPECIFICATIONS CANNOT BE UTILIZED TO EXPAND THE PATENT
MONOPOLY, BURNS V. MEYER, 100 U.S. 671, 672 (1880); MCCARTY V. LEHIGH
VALLEY R. CO., 160 U.S. 110, 116 (1895), IT IS FUNDAMENTAL THAT CLAIMS
ARE TO BE CONSTRUED IN THE LIGHT OF THE SPECIFICATIONS AND BOTH ARE TO
BE READ WITH A VIEW TO ASCERTAINING THE INVENTION, SEYMOUR V. OSBORNE,
11 WALL.  516, 547 (1871); SCHRIBER-SCHROTH CO. V. CLEVELAND TRUST CO.,
311 U.S. 211 (1940); SCHERING CORP. V. GILBERT, 153 F.2D 428 (1946). 
TAKEN TOGETHER WITH THE STATED OBJECT OF DISCLOSING A WATER-ACTIVATED
CELL, THE LACK OF REFERENCE TO ANY ELECTROLYTE IN CLAIMS 1 AND 10
INDICATES THAT WATER ALONE COULD BE USED.  FURTHERMORE, OF THE 11
CLAIMS IN ISSUE, THREE OF THE NARROWER ONES INCLUDE REFERENCES TO
SPECIFIC ELECTROLYTE SOLUTIONS COMPRISING WATER AND CERTAIN SALTS.  THE
OBVIOUS IMPLICATION FROM THE ABSENCE OF ANY MENTION OF AN ELECTROLYTE -
A NECESSARY ELEMENT IN ANY BATTERY - IN THE OTHER EIGHT CLAIMS
REINFORCES THIS CONCLUSION.  IT IS EVIDENT THAT RESPONDENTS' PRESENT
RELIANCE UPON THIS FEATURE WAS NOT THE AFTERTHOUGHT OF AN ASTUTE PATENT
TRIAL LAWYER.  IN HIS FIRST CONTACT WITH THE GOVERNMENT LESS THAN A
MONTH AFTER THE PATENT APPLICATION WAS FILED, ADAMS POINTED OUT THAT
"NO ACIDS, ALKALINES OR ANY OTHER LIQUID OTHER THAN PLAIN WATER IS USED
IN THIS CELL.  WATER DOES NOT HAVE TO BE DISTILLED  ...  ."  LETTER TO
CHARLES F. KETTERING (JANUARY 7, 1942), R., PP. 415, 416.  ALSO SEE HIS
LETTER TO THE DEPARTMENT OF COMMERCE (MARCH 28, 1942), R., P. 422.  THE
FINDINGS, APPROVED AND ADOPTED BY THE COURT OF CLAIMS, ALSO FULLY
SUPPORT THIS CONCLUSION. 

NOR IS SINCLAIR & CARROLL CO. V. INTERCHEMICAL CORP., 325 U.S. 327
(1945), APPOSITE HERE.  THERE THE PATENTEE HAD DEVELOPED A RAPIDLY
DRYING PRINTING INK.  ALL THAT WAS NEEDED TO PRODUCE SUCH AN INK WAS A
SOLVENT WHICH EVAPORATED QUICKLY UPON HEATING.  KNOWING THAT THE
BOILING POINT OF A SOLVENT IS AN INDICATION OF ITS RATE OF EVAPORATION,
THE PATENTEE MERELY MADE SELECTIONS FROM A LIST OF SOLVENTS AND THEIR
BOILING POINTS.  THIS WAS NO MORE THAN "SELECTING THE LAST PIECE TO PUT
INTO THE LAST OPENING IN A JIG-SAW PUZZLE."  325 U.S., AT 335.  INDEED,
THE GOVERNMENT'S RELIANCE UPON SINCLAIR & CARROLL POINTS UP THE FALLACY
OF THE UNDERLYING PREMISE OF ITS CASE.  THE SOLVENT IN SINCLAIR &
CARROLL HAD NO FUNCTIONAL RELATION TO THE PRINTING INK INVOLVED.  IT
SERVED ONLY AS AN INERT CARRIER.  THE CHOICE OF SOLVENT WAS DICTATED BY
KNOWN, REQUIRED PROPERTIES.  HERE, HOWEVER, THE ADAMS BATTERY IS SHOWN
TO EMBRACE ELEMENTS HAVING AN INTERDEPENDENT FUNCTIONAL RELATIONSHIP. 
IT BEGS THE QUESTION, AND OVERLOOKS THE HOLDING OF THE COMMISSIONER AND
THE COURT OF CLAIMS, TO STATE MERELY THAT MAGNESIUM AND CUPROUS
CHLORIDE WERE INDIVIDUALLY KNOWN BATTERY COMPONENTS.  IF SUCH A
COMBINATION IS NOVEL, THE ISSUE IS WHETHER BRINGING THEM TOGETHER AS
TAUGHT BY ADAMS WAS OBVIOUS IN THE LIGHT OF THE PRIOR ART. 

WE BELIEVE THAT THE COURT OF CLAIMS WAS CORRECT IN CONCLUDING THAT
THE ADAMS BATTERY IS NOVEL.  SKRIVANOFF DISCLOSED THE USE OF MAGNESIUM
IN AN ELECTROLYTE COMPLETELY DIFFERENT FROM THAT USED IN ADAMS.  AS WE
HAVE MENTIONED, IT IS EVEN OPEN TO DOUBT WHETHER CUPROUS CHLORIDE WAS A
FUNCTIONAL ELEMENT IN SKRIVANOFF.  IN VIEW OF THE UNCHALLENGED
TESTIMONY THAT THE SKRIVANOFF FORMULATION WAS BOTH DANGEROUS AND
INOPERABLE, IT SEEMS ANOMALOUS TO SUGGEST THAT IT IS AN ANTICIPATION OF
ADAMS.  AN INOPERABLE INVENTION OR ONE WHICH FAILS TO ACHIEVE ITS
INTENDED RESULT DOES NOT NEGATIVE NOVELTY.   SMITH V. SNOW, 294 U.S. 1,
17 (1935).  THAT IN 1880 SKRIVANOFF MAY HAVE BEEN ABLE TO CONVINCE A
FOREIGN PATENT EXAMINER TO ISSUE A PATENT ON HIS DEVICE HAS LITTLE
SIGNIFICANCE IN THE LIGHT OF THE FOREGOING. 

NOR IS THE GOVERNMENT'S CONTENTION THAT THE ELECTRODES OF ADAMS WERE
MERE SUBSTITUTIONS OF PRE-EXISTING BATTERY DESIGNS SUPPORTED BY THE
PRIOR ART. IF THE USE OF MAGNESIUM FOR ZINC AND CUPROUS CHLORIDE FOR
SILVER CHLORIDE WERE MERELY EQUIVALENT SUBSTITUTIONS, IT WOULD FOLLOW
THAT THE RESULTING DEVICE - ADAMS' - WOULD HAVE EQUIVALENT OPERATING
CHARACTERISTICS.  BUT IT DOES NOT.  THE COURT BELOW FOUND, AND THE
GOVERNMENT APPARENTLY ADMITS, THAT THE ADAMS BATTERY "WHOLLY
UNEXPECTEDLY" HAS SHOWN "CERTAIN VALUABLE OPERATING ADVANTAGES OVER
OTHER BATTERIES" WHILE THOSE FROM WHICH IT IS CLAIMED TO HAVE BEEN
COPIED WERE LONG AGO DISCARDED.  MOREOVER, MOST OF THE BATTERIES RELIED
UPON THE GOVERNMENT WERE OF A COMPLETELY DIFFERENT TYPE DESIGNED TO
GIVE INTERMITTENT POWER AND CHARACTERIZED BY AN ABSENCE OF INTERNAL
ACTION WHEN NOT IN USE.  SOME PROVIDED CURRENT AT VOLTAGES WHICH
DECLINED FAIRLY PROPORTIONATELY WITH TIME.  (FN4)  OTHERS WERE SO
CALLED STANDARD CELLS WHICH, THOUGH PRODUCING A CONSTANT VOLTAGE, WERE
OF USE PRINCIPALLY FOR CALIBRATION OR MEASURMENT PURPOSES.  SUCH CELLS
CANNOT BE USED AS SOUCES OF POWER.  (FN5)  FOR THE REASONS WE FIND NO
EQUIVALENCY.  (FN6) 

WE CONCLUDE THE ADAMS BATTERY WAS ALSO NONOBVIOUS.  AS WE HAVE SEEN,
THE OPERATING CHARACTERISTICS OF THE ADAMS BATTERY HAVE BEEN SHOWN TO
HAVE BEEN UNEXPECTED AND TO HAVE FAR SURPASSED THEN-EXISTING WET
BATTERIES.  DESPITE THE FACT THAT EACH OF THE ELEMENTS OF THE ADAMS
BATTERY WAS WELL KNOWN IN THE PRIOR ART, TO COMBINE THEM AS DID ADAMS
REQUIRED THAT A PERSON REASONABLY SKILLED IN THE PRIOR ART MUST IGNORE
THAT (1) BATTERIES WHICH CONTINUED TO OPERATE ON AN OPEN CIRCUIT AND
WHICH HEATED IN NORMAL USE WERE NOT PRACTICAL; AND (2) WATER-ACTIVATED
BATTERIES WERE SUCCESSFUL ONLY WHEN COMBINED WITH ELECTROLYTES
DETRIMENTAL TO THE USE OF MAGNESIUM.  THESE LONG-ACCEPTED FACTORS, WHEN
TAKEN TOGETHER, WOULD, WE BELIEVE, DETER ANY INVESTIGATION INTO SUCH A
COMBINATION AS IS USED BY ADAMS.  THIS IS NOT TO SAY THAT ONE WHO
MERELY FINDS NEW USES FOR OLD INVENTIONS BY SHUTTING HIS EYES TO THEIR
PRIOR DISADVANTAGES THEREBY DISCOVERS A PATENTABLE INNOVATION.  WE DO
SAY, HOWEVER, THAT KNOWN DISADVANTAGES IN OLD DEVICES WHICH WOULD
NATURALLY DISCOURAGE THE SEARCH FOR NEW INVENTIONS MAY BE TAKEN INTO
ACCOUNT IN DETERMINING OBVIOUSNESS. 

NOR ARE THESE THE ONLY FACTORS BEARING ON THE QUESTION OF
OBVIOUSNESS.  WE HAVE SEEN THAT AT THE TIME ADAMS PERFECTED HIS
INVENTION NOTED EXPERTS EXPRESSED DISBELIEF IN IT.  SEVERAL OF THE SAME
EXPERTS SUBSEQUENTLY RECOGNIZED THE SIGNIFICANCE OF THE ADAMS
INVENTION, SOME EVEN PATENTING IMPROVEMENTS ON THE SAME SYSTEM. 
FISCHBACH ET AL., U.S. PATENT NO. 2,636,060 (1953).  FURTHERMORE, IN A
CROWDED ART REPLETE WITH A CENTURY AND A HALF OF ADVANCEMENT, THE
PATENT OFFICE FOUND NOT ONE REFERENCE TO CITE AGAINST THE ADAMS
APPLICATION.  AGAINST THE SUBSEQUENTLY ISSUED IMPROVEMENT PATENTS TO
FISCHBACH, SUPRA, AND TO CHUBB, U.S. REISSUE PATENT NO. 23,883 (1954),
IT FOUND BUT THREE REFERENCES PRIOR TO ADAMS - NONE OF WHICH ARE RELIED
UPON BY THE GOVERNMENT. 

WE CONCLUDE THAT THE ADAMS PATENT IS VALID.  THE JUDGMENT OF THE
COURT OF CLAIMS IS AFFIRMED.  IT IS SO ORDERED. 

FN1  WHERE A TIMELY MOTION IS FILED, THE TIME IN SUCH CASES RUNS FROM
THE DATE OF THE ORDER OVERRULING THE MOTION.  SEE DEPARTMENT OF BANKING
V. PINK, 317 U.S. 264, 267 (1942); UNITED STATES V. CRESCENT AMUSEMENT
CO., 323 U.S. 173, 177 (1944); FORMAN V. UNITED STATES, 361 U.S. 416,
426 (1960). 

FN2  THE REFERENCES ARE LISTED IN THE OPINION OF THE COURT OF CLAIMS,
165 CT. CL., AT 590, 330 F.2D, AT 631. 

FN3  NIAUDET, ELEMENTARY TREATISE ON ELECTRIC BATTERIES (FISHBACK
TRANSLATION 1880); HAYES U.S. PATENT NO. 282,634 (1883); WOOD U.S.
PATENT NO. 1,696,873 (1928); CODD, PRACTICAL PRIMARY CELLS (LONDON
1929); WENSKY BRITISH PATENT NO. 49 OF 1891; AND SKRIVANOFF BRITISH
PATENT NO. 4,341 (1880). 

FN4  IT IS INTERESTING TO NOTE IN THIS CONNECTION THAT IN TESTING THE
ADAMS CELL THE SIGNAL CORPS COMPARED IT WITH BATTERIES OF THIS TYPE. 
THE GRAPHICAL RESULTS OF THE COMPARISON ARE SHOWN IN RESPONDENTS'
BRIEF, P. 51. 

FN5  THE STANDARD TEXT IN THE ART STATES:  "THE BEST ANSWER TO THE
OFT-REPEATED QUESTION: 'HOW MUCH CURRENT CAN I DRAW FROM MY STANDARD
CELL?'  IS 'NONE.'"  VINAL, PRIMARY BATTERIES, P. 212 (NEW YORK 1950);
SEE ALSO RUBEN U.S. PATENT NO. 1,920,151 (1933). 

FN6  IN THEIR MOTION TO DISMISS THE WRIT OF CERTIORARI AS
IMPROVIDENTLY GRANTED, RESPONDENTS ASSERTED THAT THE GOVERNMENT WAS
ESTOPPED TO CLAIM EQUIVALENCY OF CUPROUS CHLORIDE AND SILVER CHLORIDE. 
WE FIND NO MERIT IN THIS CONTENTION AND, THEREFORE, DENY THE MOTION. 

MR. JUSTICE WHITE DISSENTS. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







LINN V. PLANT GUARD WORKERS 383 U.S. 53 


NO. 45.  ARGUED NOVEMBER 18, 1965.  - DECIDED FEBRUARY 21, 1966.  - 337
F.2D 68, REVERSED AND REMANDED. 


PETITIONER, AN OFFICIAL OF THE EMPLOYER, FILED THIS CIVIL LIBEL ACTION
UNDER STATE LAW AGAINST AN EMPLOYEE, A UNION, AND TWO OF ITS OFFICERS,
ALLEGING THAT STATEMENTS IN LEAFLETS CIRCULATED IN CONNECTION WITH A
CAMPAIGN TO ORGANIZE THE EMPLOYEES, APPLIED TO HIM, WERE "FALSE,
DEFAMATORY AND UNTRUE" AND LIBELOUS PER SE.  THE SUIT WAS FILED IN
FEDERAL COURT ON THE BASIS OF DIVERSITY OF CITZENSHIP.  A DISMISSAL
MOTION WAS MADE ON THE GROUND THAT THE NLRB HAD EXCLUSIVE JURISDICTION
OF THE SUBJECT MATTER.  THE EMPLOYER HAD PREVIOUSLY FILED UNFAIR LABOR
PRACTICE CHARGES WITH THE NLRB'S REGIONAL DIRECTOR, ASSERTING THAT THE
LEAFLETS AND OTHER MATERIAL RESTRAINED AND COERCED THE EMPLOYEES IN
VIOLATION OF SEC 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT.  THE
REGIONAL DIRECTOR REFUSED TO ISSUE A COMPLAINT, FINDING THAT THE
LEAFLETS WERE CIRCULATED BY RESPONDENT EMPLOYEE, WHO WAS NOT A MEMBER
OR AGENT OF THE UNION, AND THAT THE UNION WAS NOT RESPONSIBLE FOR THEIR
DISTRIBUTION.  THE BOARD'S GENERAL COUNSEL SUSTAINED THE RULING.  THE
DISTRICT COURT DISMISSED THE LIBEL COMPLAINT HOLDING THAT THE ALLEGED
CONDUCT "WOULD ARGUABLY CONSTITUTE AN UNFAIR LABOR PRACTICE UNDER
GARMON, 359 U.S. 236, COMPELLED DISMISSAL ON PRE-EMPTION GROUNDS.  THE
COURT OF APPEALS AFFIRMED, ASSUMING WITHOUT DECIDING THAT THE
STATEMENTS WERE "FALSE, MALICIOUS, CLEARLY LIBELOUS AND DAMAGING"
THOUGH "RELEVANT TO THE UNION'S CAMPAIGN."  HELD:  WHERE A PARTY TO A
LABOR DISPUTE CIRCULATES FALSE AND DEFAMATORY STATEMENTS DURING A UNION
ORGANIZING CAMPAIGN THE COURT HAS JURISDICTION TO APPLY STATE REMEDIES
IF THE COMPLAINANT PLEADS AND PROVES THAT THE STATEMENTS WERE MADE WITH
MALICE AND INJURED HIM.  PP. 55-67. 

(A)  THE STATES NEED NOT YIELD JURISDICTION TO THE FEDERAL GOVERNMENT
WHERE THE ACTIVITY REGULATED IS BUT A PERIPHERAL CONCERN OF THE ACT OR
TOUCHES LOCAL INTERESTS SO DEEPLY ROOTED THAT IT CANNOT BE ASSUMED THAT
CONGRESS, ABSENT CONTRARY DIRECTION, HAD DEPRIVED STATES OF THE POWER
TO ACT.  SAN DIEGO BUILDING TRADES COUNCIL, SUPRA, PP. 59-60. 

(B)  WHILE THE NLRB TOLERATES INTERMPERATE, ABUSIVE AND INACCURATE
STATEMENTS MADE BY A UNION DURING ORGANIZING EFFORTS, IT DOES NOT
INTERPRET THE ACT AS GIVING EITHER PARTY LICENSE TO INJURE THE OTHER
INTENTIONALLY BY CIRCULATING DEFAMATORY OR INSULTING MATERIAL KNOWN TO
BE FALSE.  P. 61. 

(C)  THE EXERCISE OF STATE JURISDICTION LIMITED TO REDRESSING LIBEL
ISSUED WITH KNOWLEDGE OF ITS FALSITY, OR WITH RECKLESS DISREGARD OF
WHETHER IT WAS TRUE OR FALSE, WOULD REFLECT AN OVERRIDING STATE
INTEREST IN PROTECTING ITS RESIDENTS AND WOULD BE A "MERELY PERIPHERAL
CONCERN" OF THE ACT.  PP. 61-62. 

(D)  SECTION 8(C) OF THE ACT MANIFESTS CONGRESSIONAL INTENT TO
ENCOURAGE FREE DEBATE ON LABOR-MANAGEMENT ISSUES; BUT MALICIOUS
UTTERANCE OF DEFAMATORY STATEMENTS CANNOT BE CONDONED AND MALICIOUS
LIBEL ENJOYS NO PROTECTION IN ANY CONTEXT.  PP. 62-63. 

(E)  THE FACT THAT DEFAMATION ARISES DURING A LABOR DISPUTE DOES NOT
GIVE THE NLRB EXCLUSIVE JURISDICTION THEREOF, AS THE MALICIOUS
PUBLICATION OF LIBELOUS STATEMENTS DOES NOT OF ITSELF CONSTITUTE AN
UNFAIR LABOR PRACTICE.  P. 63. 

(F)  THE NLRB IS CONCERNED WITH THE EFFECT ON A REPRESENTATION
ELECTION, WHILE STATE REMEDIES ARE DESIGNED TO COMPENSATE THE VICTIM. 
PP. 63-64. 

(G)  TO PREVENT INTERFERENCE WITH EFFECTIVE ADMINISTRATION OF
NATIONAL LABOR POLICY THE AVAILABILITY OF STATE REMEDIES FOR LIBEL IS
LIMITED TO INSTANCES WHERE THE DEFAMATORY STATEMENTS WERE CIRCULATED
MALICIOUSLY AND CAUSED DAMAGE TO THE COMPLAINANT.  PP. 64-65. 

(H)  THE AVAILABILITY OF A STATE JUDICIAL REMEDY FOR MALICIOUS LIBEL
WILL NOT IMPINGE UPON THE NATIONAL LABOR POLICY BY CAUSING EMPLOYERS
AND UNIONS TO SPURN THE ADMINISTRATIVE REMEDIES OFFERED BY THE NLRB;
BOTH REMEDIES, WHICH ARE NOT INCONSISTENT, WILL BE AVAILABLE IN
APPROPRIATE CASES.  PP. 66-67. 

LINN V. UNITED PLANT GUARD WORKERS OF AMERICA, LOCAL 114, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE CASE BEFORE US PRESENTS THE QUESTION WHETHER, AND TO WHAT EXTENT,
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 61 STAT. 136, 29 U.S.C.
SEC 141 ET SEQ. (1964 ED.), BARS THE MAINTENANCE OF A CIVIL ACTION FOR
LIBEL INSTITUTED UNDER STATE LAW BY AN OFFICIAL OF AN EMPLOYER SUBJECT
TO THE ACT, SEEKING DAMAGES FOR DEFAMATORY STATEMENTS PUBLISHED DURING
A UNION ORGANIZING CAMPAIGN BY THE UNION AND ITS OFFICERS.  THE
DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND THAT THE NATIONAL
LABOR RELATIONS BOARD HAD EXCLUSIVE JURISDICTION OVER THE SUBJECT
MATTER.  IT HELD THAT SUCH CONDUCT "WOULD ARGUABLY CONSTITUTE AN UNFAIR
LABOR PRACTICE UNDER SECTION 8(B)" OF THE ACT AND THAT SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959), COMPELLED A
DISMISSAL ON PRE-EMPTION GROUNDS.  THE COURT OF APPEALS AFFIRMED, 337
F.2D 68, ASSUMING WITHOUT DECIDING THAT THE STATEMENTS IN QUESTION WERE
"FALSE, MALICIOUS, CLEARLY LIBELOUS AND DAMAGING TO PLAINTIFF LINN,
ALBEIT THEY WERE RELEVANT TO THE UNION'S CAMPAIGN."  AT P. 69.  WE
GRANTED CERTIORARI, 381 U.S. 923.  WE CONCLUDE THAT WHERE EITHER PARTY
TO A LABOR DISPUTE CIRCULATES FALSE AND DEFAMATORY STATEMENTS DURING A
UNION ORGANIZING CAMPAIGN, THE COURT DOES HAVE JURISDICTION TO APPLY
STATE REMEDIES IF THE COMPLAINANT PLEADS AND PROVES THAT THE STATEMENTS
WERE MADE WITH MALICE AND INJURED HIM.  THE JUDGMENT IS, THEREFORE,
REVERSED. 

     I. 

PETITIONER LINN, AN ASSISTANT GENERAL MANAGER OF PINKERTON'S NATIONAL
DETECTIVE AGENCY, INC., FILED THIS SUIT AGAINST THE RESPONDENT UNION,
TWO OF ITS OFFICERS AND A PINKERTON EMPLOYEE, LEO J. DOYLE.  THE
COMPLAINT ALLEGED THAT, DURING A CAMPAIGN TO ORGANIZE PINKERTON'S
EMPLOYEES IN DETROIT, THE RESPONDENTS HAD CIRCULATED AMONG THE
EMPLOYEES LEAFLETS WHICH STATED INTER ALIA: 

"(7)  NOW WE FIND OUT THAT PINKERTON'S HAS HAD A LARGE VOLUME OF WORK
IN SAGINAW THEY HAVE HAD IT FOR YEARS. 

"UNITED PLANT GUARD WORKERS NOW HAS EVIDENCE 

"A.  THAT PINKERTON HAS 10 JOBS IN SAGINAW, MICHIGAN. 

"B.  EMPLOYING 52 MEN. 

"C.  SOME OF THESE JOBS ARE 10 YRS.  OLD] 

"(8)  MAKE YOU FEEL KIND SICK & FOOLISH. 

"(9)  THE MEN IN SAGINAW WERE DEPRIVED OF THEIR RIGHT TO VOTE IN
THREE N.L.R.B. ELECTIONS.  THEIR NAMES WERE NOT SUBMITTED.  THESE
GUARDS WERE VOTED INTO THE UNION IN 1959]  THESE PINKERTON GUARDS WERE
ROBBED OF PAY INCREASES.  THE PINKERTON MANAGERS WERE LYING TO US - ALL
THE TIME THE CONTRACT WAS IN EFFECT.  NO DOUBT THE SAGINAW MEN WILL
FILE CRIMINAL CHARGES.  SOMEBODY MAY GO TO JAIL]" 

THE COMPLAINT FURTHER ALLEGED THAT LINN WAS ONE OF THE MANAGERS
REFERRED TO IN THE LEAFLET, AND THAT THE STATEMENTS IN THE LEAFLET WERE
"WHOLLY FALSE, DEFAMATORY AND UNTRUE" AS RESPONDENTS WELL KNEW.  IT DID
NOT ALLEGE ANY ACTUAL OR SPECIAL DAMAGE BUT PRAYED FOR THE RECOVERY OF
$1,000,000 ON THE GROUND THAT THE ACCUSATIONS WERE LIBELOUS PER SE.
FEDERAL JURISDICTION WAS BASED ON DIVERSITY OF CITIZENSHIP. 

ALL RESPONDENTS, SAVE DOYLE, MOVED TO DISMISS, ASSERTING THAT THE
SUBJECT MATTER WAS WITHIN THE EXCLUSIVE JURISDICTION OF THE BOARD.  THE
RECORD INDICATES THAT PRIOR TO THE INSTITUTION OF THIS ACTION PINKERTON
HAD FILED UNFAIR LABOR PRACTICE CHARGES WITH THE REGIONAL DIRECTOR OF
THE BOARD, ALLEGING THAT THE DISTRIBUTION OF THE LEAFLETS, AS WELL AS
OTHER WRITTEN MATERIAL, HAD RESTRAINED AND COERCED PINKERTON'S
EMPLOYEES IN THE EXERCISE OF THEIR SEC. 7 RIGHTS, IN VIOLATION OF SEC.
8(B)(1)(A) OF THE ACT.  THE REGIONAL DIRECTOR REFUSED TO ISSUE A
COMPLAINT.  FINDING THAT THE LEAFLETS WERE CIRCULATED BY DOYLE, WHO WAS
"NOT AN OFFICER OR MEMBER OF THE CHARGED UNION, NOR WAS THERE ANY
EVIDENCE THAT HE WAS ACTING AS AN AGENT OF SUCH UNION," HE CONCLUDED
THAT THE UNION WAS NOT RESPONSIBLE FOR THE DISTRIBUTION OF THE LEAFLETS
AND THAT THE CHARGE WAS, THEREFORE, "WHOLLY WITHOUT BASIS."  THIS
RULING WAS SUSTAINED BY THE GENERAL COUNSEL OF THE BOARD SOME TWO
MONTHS AFTER THIS SUIT WAS FILED. 

IN AN UNPUBLISHED OPINION THE DISTRICT JUDGE DISMISSED THE COMPLAINT
HOLDING, AS WE HAVE ALREADY NOTED, THAT EVEN IF THE UNION WERE
RESPONSIBLE FOR DISTRIBUTING THE MATERIAL THE CASE WAS CONTROLLED BY
GARMON, SUPRA.  THE COURT OF APPEALS AFFIRMED, LIMITING ITS HOLDING "TO
A SUIT FOR LIBELOUS STATEMENTS GROWING OUT OF AND RELEVANT TO A UNION'S
CAMPAIGN TO ORGANIZE THE EMPLOYEES OF AN EMPLOYER SUBJECT TO THE
NATIONAL LABOR RELATIONS ACT."  AT 72. 

          II. 

THE QUESTION BEFORE US HAS BEEN A RECURRING ONE IN BOTH STATE AND
FEDERAL TRIBUNALS,  (FN1) INVOLVING THE EXTENT TO WHICH THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED, SUPERSEDES STATE LAW WITH RESPECT TO
LIBELS PUBLISHED DURING LABOR DISPUTES.  ITS RESOLUTION ENTAILS
ACCOMMODATION OF THE FEDERAL INTEREST IN UNIFORM REGULATION OF LABOR
RELATIONS WITH THE TRADITIONAL CONCERN AND RESPONSIBILITY OF THE STATE
TO PROTECT ITS CITIZENS AGAINST DEFAMATORY ATTACKS.  THE PROBLEM IS
AGGRAVATED BY THE FACT THAT THE LAW IN MANY STATES PRESUMES DAMAGES
FROM THE PUBLICATION OF CERTAIN STATEMENTS CHARACTERIZED AS ACTIONABLE
PER SE.  (FN2)  LABOR DISPUTES ARE ORDINARILY HEATED AFFAIRS; THE
LANGUAGE THAT IS COMMONPLACE THERE MIGHT WELL BE DEEMED ACTIONABLE PER
SE IN SOME STATE JURISDICTIONS.  INDEED, REPRESENTATION CAMPAIGNS ARE
FREQUENTLY CHARACTERIZED BY BITTER AND EXTREME CHARGES, COUNTERCHARGES,
UNFOUNDED RUMORS, VITUPERATIONS, PERSONAL ACCUSATIONS,
MISREPRESENTATIONS AND DISTORTIONS.  BOTH LABOR AND MANAGEMENT OFTEN
SPEAK BLUNTLY AND RECKLESSLY, EMBELLISHING THEIR RESPECTIVE POSITIONS
WITH IMPRECATORY LANGUAGE.  CAFETERIA UNION V. ANGELOS, 320 U.S. 293,
295 (1943).  IT IS THEREFORE NECESSARY TO DETERMINE WHETHER LIBEL
ACTIONS IN SUCH CIRCUMSTANCES MIGHT INTERFERE WITH THE NATIONAL LABOR
POLICY. 

OUR TASK IS RENDERED MORE DIFFICULT BY THE FAILURE OF THE CONGRESS TO
FURNISH PRECISE GUIDANCE IN EITHER THE LANGUAGE OF THE ACT OR ITS
LEGISLATIVE HISTORY.  (FN3)  AS MR. JUSTICE JACKSON SAID FOR A
UNANIMOUS COURT IN GARNER V. TEAMSTERS UNION, 346 U.S. 485, 488 (1953):
"THE  ...  ACT  ...  LEAVES MUCH TO THE STATES, THOUGH CONGRESS HAS
REFRAINED FROM TELLING US HOW MUCH.  WE MUST SPELL OUT FROM CONFLICTING
INDICATIONS OF CONGRESSIONAL WILL THE AREA IN WHICH STATE ACTION IS
STILL PERMISSIBLE." 

THE COURT HAS DEALT WITH SPECIFIC PRE-EMPTION PROBLEMS ARISING UNDER
THE NATIONAL LABOR RELATIONS ACT ON MANY OCCASIONS, GOING BACK AS FAR
AS ALLEN-BRADLEY LOCAL V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 315
U.S. 740 (1942).  HOWEVER, IN FRAMING THE PRE-EMPTION QUESTION BEFORE
US WE NEED LOOK PRIMARILY TO SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236 (1959).  THERE IN MOST METICULOUS LANGUAGE THIS
COURT SPELLED OUT THE "EXTENT TO WHICH THE VARIEGATED LAWS OF THE
SEVERAL STATES ARE DISPLACED BY A SINGLE, UNIFORM, NATIONAL RULE  ...
."  AT 241.  THE COURT EMPHASIZED THAT IT WAS FOR THE BOARD AND THE
CONGRESS TO DEFINE THE "PRECISE AND CLOSELY LIMITED DEMARCATIONS THAT
CAN BE ADEQUATELY FASHIONED ONLY BY LEGISLATION AND ADMINISTRATION,"
WHILE "OUR TASK IS CONFINED TO DEALING WITH CLASSES OF SITUATIONS."  AT
242.  IN THIS RESPECT, THE COURT CONCLUDED THAT THE STATES NEED NOT
YIELD JURISDICTION "WHERE THE ACTIVITY REGULATED WAS A MERELY
PERIPHERAL CONCERN OF THE LABOR MANAGEMENT RELATIONS ACT  ...  OR WHERE
THE REGULATED CONDUCT TOUCHED INTERESTS SO DEEPLY ROOTED IN LOCAL
FEELING AND RESPONSIBILITY THAT, IN THE ABSENCE OF COMPELLING
CONGRESSIONAL DIRECTION, WE COULD NOT INFER THAT CONGRESS HAD DEPRIVED
THE STATES OF THE POWER TO ACT."  AT 243-244.  IN SHORT, AS WE SAID IN
PLUMBERS' UNION V. BORDEN, 373 U.S. 690, 693-694 (1963): 

"IN THE ABSENCE OF AN OVERRIDING STATE INTEREST SUCH AS THAT INVOLVED
IN THE MAINTENANCE OF DOMESTIC PEACE, STATE COURTS MUST DEFER TO THE
EXCLUSIVE COMPETENCE OF THE NATIONAL LABOR RELATIONS BOARD IN CASES IN
WHICH THE ACTIVITY THAT IS THE SUBJECT MATTER OF THE LITIGATION IS
ARGUABLY SUBJECT TO THE PROTECTIONS OF SEC. 7 OR THE PROHIBITIONS OF
SEC. 8 OF THE NATIONAL LABOR RELATIONS ACT.  THIS RELINQUISHMENT OF
STATE JURISDICTION  ... IS ESSENTIAL 'IF THE DANGER OF STATE
INTERFERENCE WITH NATIONAL POLICY IS TO BE AVERTED,'  ...  AND IS AS
NECESSARY IN A SUIT FOR DAMAGES AS IN A SUIT SEEKING EQUITABLE RELIEF. 
THUS THE FIRST INQUIRY, IN ANY CASE IN WHICH A CLAIM OF FEDERAL PRE
EMPTION IS RAISED, MUST BE WHETHER THE CONDUCT CALLED INTO QUESTION MAY
REASONABLY BE ASSERTED TO BE SUBJECT TO LABOR BOARD COGNIZANCE." 

WE NOTE THAT THE BOARD HAS GIVEN FREQUENT CONSIDERATION TO THE TYPE
OF STATEMENTS CIRCULATED DURING LABOR CONTROVERSIES, AND THAT IT HAS
ALLOWED WIDE LATITUDE TO THE COMPETING PARTIES.  (FN4) IT IS CLEAR THAT
THE BOARD DOES NOT "POLICE OR CENSOR PROPAGANDA USED IN THE ELECTIONS
IT CONDUCTS, BUT RATHER LEAVES TO THE GOOD SENSE OF THE VOTERS THE
APPRAISAL OF SUCH MATTERS, AND TO OPPOSING PARTIES THE TASK OF
CORRECTING INACCURATE AND UNTRUTHFUL STATEMENTS."  STEWART-WARNER
CORP., 102 N.L.R.B. 1153, 1158 (1953).  IT WILL SET ASIDE AN ELECTION
ONLY WHERE A MATERIAL FACT HAS BEEN MISREPRESENTED IN THE
REPRESENTATION CAMPAIGN; OPPORTUNITY FOR REPLY HAS BEEN LACKING; AND
THE MISREPRESENTATION HAS HAD AN IMPACT ON THE FREE CHOICE OF THE
EMPLOYEES PARTICIPATING IN THE ELECTION.  HOLLYWOOD CERAMICS CO., 140
N.L.R.B. 221, 223-224 (1962); F. H. SNOW CANNING CO., 119 N.L.R.B. 714,
717-718 (1957).  LIKEWISE, IN A NUMBER OF CASES, THE BOARD HAS
CONCLUDED THAT EPITHETS SUCH AS "SCAB," "UNFAIR," AND "LIAR" ARE
COMMONPLACE IN THESE STRUGGLES AND NOT SO INDEFENSIBLE AS TO REMOVE
THEM FROM THE PROTECTION OF SEC. 7, EVEN THOUGH THE STATEMENTS ARE
ERRONEOUS AND DEFAME ONE OF THE PARTIES TO THE DISPUTE.  YET THE BOARD
INDICATED THAT ITS DECISIONS WOULD HAVE BEEN DIFFERENT HAD THE
STATEMENTS BEEN UTTERED WITH ACTUAL MALICE, "A DELIBERATE INTENTION TO
FALSIFY" OR "A MALEVOLENT DESIRE TO INJURE."  E.G., BETTCHER MFG.
CORP., 76 N.L.R.B. 526 (1948); ATLANTIC TOWING CO., 75 N.L.R.B. 1169,
1170-1173 (1948).  IN SUM, ALTHOUGH THE BOARD TOLERATES INTEMPERATE,
ABUSIVE AND INACCURATE STATEMENTS MADE BY THE UNION DURING ATTEMPTS TO
ORGANIZE EMPLOYEES, IT DOES NOT INTERPRET THE ACT AS GIVING EITHER
PARTY LICENSE TO INJURE THE OTHER INTENTIONALLY BY CIRCULATING
DEFAMATORY OR INSULTING MATERIAL KNOWN TO BE FALSE.  SEE MARYLAND
DRYDOCK CO. V. LABOR BOARD, 183 F.2D 538 (C.A. 4TH CIR. 1950).  IN SUCH
CASE THE ONE ISSUING SUCH MATERIAL FORFEITS HIS PROTECTION UNDER THE
ACT.  WALLS MANUFACTURING CO., 137 N.L.R.B. 1317, 1319 (1962). 

IN THE LIGHT OF THESE CONSIDERATIONS IT APPEARS THAT THE EXERCISE OF
STATE JURISDICTION HERE WOULD BE A "MERELY PERIPHERAL CONCERN OF THE
LABOR MANAGEMENT RELATIONS ACT," PROVIDED IT IS LIMITED TO REDRESSING
LIBEL ISSUED WITH KNOWLEDGE OF ITS FALSITY, OR WITH RECKLESS DISREGARD
OF WHETHER IT WAS TRUE OR FALSE.  MOREOVER, WE BELIEVE THAT "AN
OVERRIDING STATE INTEREST" IN PROTECTING ITS RESIDENTS FROM MALICIOUS
LIBELS SHOULD BE RECOGNIZED IN THESE CIRCUMSTANCES.  THIS CONCLUSION IS
BUTTRESSED BY OUR HOLDING IN UNITED CONSTRUCTION WORKERS V. LABURNUM
CONSTRUCTION CORP., 347 U.S. 656 (1954), WHERE MR. JUSTICE BURTON
WRITING FOR THE COURT HELD: 

"TO THE EXTENT  ...  THAT CONGRESS HAS NOT PRESCRIBED PROCEDURE FOR
DEALING WITH THE CONSEQUENCES OF TORTIOUS CONDUCT ALREADY COMMITTED,
THERE IS NO GROUND FOR CONCLUDING THAT EXISTING CRIMINAL PENALTIES OR
LIABILITIES FOR TORTIOUS CONDUCT HAVE BEEN ELIMINATED.  THE CARE WE
TOOK IN THE GARNER CASE TO DEMONSTRATE THE EXISTING CONFLICT BETWEEN
STATE AND FEDERAL ADMINISTRATIVE REMEDIES IN THAT CASE WAS, ITSELF, A
RECOGNITION THAT IF NO CONFLICT HAD EXISTED, THE STATE PROCEDURE WOULD
HAVE SURVIVED."  AT 665. 

IN UNITED AUTOMOBILE WORKERS V. RUSSELL, 356 U.S. 634 (1958), WE
AGAIN UPHELD STATE JURISDICTION TO ENTERTAIN A COMPENSATORY AND
PUNITIVE DAMAGE ACTION BY AN EMPLOYEE FOR MALICIOUS INTERFERENCE WITH
HIS LAWFUL OCCUPATION.  IN EACH OF THESE CASES THE "TYPE OF CONDUCT"
INVOLVED, I.E., "INTIMIDATION AND THREATS OF VIOLENCE," AFFECTED SUCH
COMPELLING STATE INTERESTS AS TO PERMIT THE EXERCISE OF STATE
JURISDICTION.  GARMON, SUPRA, AT 248.  WE SIMILARLY CONCLUDE THAT A
STATE'S CONCERN WITH REDRESSING MALICIOUS LIBEL IS "SO DEEPLY ROOTED IN
LOCAL FEELING AND RESPONSIBILITY" THAT IT FITS WITHIN THE EXCEPTION
SPECIFICALLY CARVED OUT BY GARMON. 

WE ACKNOWLEDGE THAT THE ENACTMENT OF SEC. 8(C) MANIFESTS A
CONGRESSIONAL INTENT TO ENCOURAGE FREE DEBATE ON ISSUES DIVIDING LABOR
AND MANAGEMENT.  (FN5)  AND, AS WE STATED IN ANOTHER CONTEXT, CASES
INVOLVING SPEECH ARE TO BE CONSIDERED "AGAINST THE BACKGROUND OF A
PROFOUND  ...  COMMITMENT TO THE PRINCIPLE THAT DEBATE  ...  SHOULD BE
UNINHIBITED, ROBUST, AND WIDE-OPEN, AND THAT IT MAY WELL INCLUDE
VEHEMENT, CAUSTIC, AND SOMETIMES UNPLEASANTLY SHARP ATTACKS."  NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254, 270 (1964).  SUCH CONSIDERATIONS
LIKEWISE WEIGH HEAVILY HERE; THE MOST REPULSIVE SPEECH ENJOYS IMMUNITY
PROVIDED IT FALLS SHORT OF A DELIBERATE OR RECKLESS UNTRUTH.  BUT IT
MUST BE EMPHASIZED THAT MALICIOUS LIBEL ENJOYS NO CONSTITUTIONAL
PROTECTION IN ANY CONTEXT.  AFTER ALL, THE LABOR MOVEMENT HAS GROWN UP
AND MUST ASSUME ORDINARY RESPONSIBILITIES.  THE MALICIOUS UTTERANCE OF
DEFAMATORY STATEMENTS IN ANY FORM CANNOT BE CONDONED, AND UNIONS SHOULD
ADOPT PROCEDURES CALCULATED TO PREVENT SUCH ABUSES. 
                   III. 

NOR SHOULD THE FACT THAT DEFAMATION ARISES DURING A LABOR DISPUTE
GIVE THE BOARD EXCLUSIVE JURISDICTION TO REMEDY ITS CONSEQUENCES.  THE
MALICIOUS PUBLICATION OF LIBELOUS STATEMENTS DOES NOT IN AND OF ITSELF
CONSTITUTE AN UNFAIR LABOR PRACTICE.  WHILE THE BOARD MIGHT FIND THAT
AN EMPLOYER OR UNION VIOLATED SEC. 8 BY DELIBERATELY MAKING FALSE
STATEMENTS, OR THAT THE ISSUANCE OF MALICIOUS STATEMENTS DURING AN
ORGANIZING CAMPAIGN HAD SUCH A PROFOUND EFFECT ON THE ELECTION AS TO
REQUIRE THAT IT BE SET ASIDE, IT LOOKS ONLY TO THE COERCIVE OR
MISLEADING NATURE OF THE STATEMENTS RATHER THAN THEIR DEFAMATORY
QUALITY.  THE INJURY THAT THE STATEMENT MIGHT CAUSE TO AN INDIVIDUAL'S
REPUTATION - WHETHER HE BE AN EMPLOYER OR UNION OFFICIAL - HAS NO
RELEVANCE TO THE BOARD'S FUNCTION.   CF. AMALGAMATED UTILITY WORKERS V.
CONSOLIDATED EDISON CO., 309 U.S. 261 (1940).  THE BOARD CAN AWARD NO
DAMAGES, IMPOSE NO PENALTY, OR GIVE ANY OTHER RELIEF TO THE DEFAMED
INDIVIDUAL. 

ON THE CONTRARY, STATE REMEDIES HAVE BEEN DESIGNED TO COMPENSATE THE
VICTIM AND ENABLE HIM TO VINDICATE HIS REPUTATION.  THE BOARD'S LACK OF
CONCERN WITH THE "PERSONAL" INJURY CAUSED BY MALICIOUS LIBEL, TOGETHER
WITH ITS INABILITY TO PROVIDE REDRESS TO THE MALIGNED PARTY, VITIATES
THE ORDINARY ARGUMENTS FOR PRE-EMPTION.  (FN6)  AS STRESSED BY THE
CHIEF JUSTICE IN HIS DISSENTING OPINION IN RUSSELL, SUPRA: 

"THE UNPROVOKED INFLICTION OF PERSONAL INJURIES DURING A PERIOD OF
LABOR UNREST IS NEITHER TO BE EXPECTED NOR TO BE JUSTIFIED, BUT
ECONOMIC LOSS INEVITABLY ATTENDS WORK STOPPAGES.  FURTHERMORE, DAMAGES
FOR PERSONAL INJURIES MAY BE ASSESSED WITHOUT REGARD TO THE MERITS OF
THE LABOR CONTROVERSY ...  ."  AT 649. 

JUDICIAL CONDEMNATION OF THE ALLEGED ATTACK ON LINN'S CHARACTER WOULD
REFLECT NO JUDGMENT UPON THE OBJECTIVES OF THE UNION.  IT WOULD NOT
INTERFERE WITH THE BOARD'S JURISDICTION OVER THE MERITS OF THE LABOR
CONTROVERSY. 

BUT IT HAS BEEN INSISTED THAT NOT ONLY WOULD THE THREAT OF STATE
LIBEL SUITS DAMPEN THE ARDOR OF LABOR DEBATE AND TRUNCATE THE FREE
DISCUSSION ENVISIONED BY THE ACT, BUT THAT SUCH SUITS MIGHT BE USED AS
WEAPONS OF ECONOMIC COERCION.  MOREOVER, IN VIEW OF THE PROPENSITY OF
JURIES TO AWARD EXCESSIVE DAMAGES FOR DEFAMATION, THE AVAILABILITY OF
LIBEL ACTIONS MAY POSE A THREAT TO THE STABILITY OF LABOR UNIONS AND
SMALLER EMPLOYERS.  IN ORDER THAT THE RECOGNITION OF LEGITIMATE STATE
INTERESTS DOES NOT INTERFERE WITH EFFECTIVE ADMINISTRATION OF NATIONAL
LABOR POLICY THE POSSIBILITY OF SUCH CONSEQUENCES MUST BE MINIMIZED. 
WE THEREFORE LIMIT THE AVAILABILITY OF STATE REMEDIES FOR LIBEL TO
THOSE INSTANCES IN WHICH THE COMPLAINANT CAN SHOW THAT THE DEFAMATORY
STATEMENTS WERE CIRCULATED WITH MALICE AND CAUSED HIM DAMAGE. 

THE STANDARDS ENUNCIATED IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S.
254 (1964), ARE ADOPTED BY ANALOGY, RATHER THAN UNDER CONSTITUTIONAL
COMPULSION.  WE APPLY THE MALICE TEST TO EFFECTUATE THE STATUTORY
DESIGN WITH RESPECT TO PRE-EMPTION.  CONSTRUING THE ACT TO PERMIT
RECOVERY OF DAMAGES IN A STATE CAUSE OF ACTION ONLY FOR DEFAMATORY
STATEMENTS PUBLISHED WITH KNOWLEDGE OF THEIR FALSITY OR WITH RECKLESS
DISREGARD OR WHETHER THEY WERE TRUE OR FALSE GUARDS AGAINST ABUSE OF
LIBEL ACTIONS AND UNWARRANTED INTRUSION UPON FREE DISCUSSION ENVISIONED
BY THE ACT. 

AS WE HAVE POINTED OUT, CERTAIN LANGUAGE CHARACTERISTIC OF LABOR
DISPUTES MAY BE HELD ACTIONABLE PER SE IN SOME STATE COURTS.  THESE
CATEGORIES OF LIBEL HAVE DEVELOPED WITHOUT SPECIFIC REFERENCE TO LABOR
CONTROVERSIES.  HOWEVER, EVEN IN THOSE JURISDICTIONS, THE AMOUNT OF
DAMAGES WHICH MAY BE RECOVERED DEPENDS UPON EVIDENCE AS TO THE SEVERITY
OF THE RESULTING HARM.  THIS IS A SALUTARY PRINCIPLE.  WE THEREFORE
HOLD THAT A COMPLAINANT MAY NOT RECOVER EXCEPT UPON PROOF OF SUCH HARM,
WHICH MAY INCLUDE GENERAL INJURY TO REPUTATION, CONSEQUENT MENTAL
SUFFERING, ALIENATION OF ASSOCIATES, SPECIFIC ITEMS OF PECUNIARY LOSS,
OR WHATEVER FORM OF HARM WOULD BE RECOGNIZED BY STATE TORT LAW.  (FN7)
THE FACT THAT COURTS ARE GENERALLY NOT IN CLOSE CONTACT WITH THE
PRESSURES OF LABOR DISPUTES MAKES IT ESPECIALLY NECESSARY THAT THIS
RULE BE FOLLOWED.  IF THE AMOUNT OF DAMAGES AWARDED IS EXCESSIVE, IT IS
THE DUTY OF THE TRIAL JUDGE TO REQUIRE A REMITTITUR OR A NEW TRIAL. 
LIKEWISE, THE DEFAMED PARTY MUST ESTABLISH THAT HE HAS SUFFERED SOME
SORT OF COMPENSABLE HARM AS A PREREQUISITE TO THE RECOVERY OF
ADDITIONAL PUNITIVE DAMAGES.  (FN8) 

SINCE THE COMPLAINT HERE DOES NOT MAKE THE SPECIFIC ALLEGATIONS THAT
WE FIND NECESSARY IN SUCH ACTIONS, LEAVE SHOULD BE GIVEN LINN ON REMAND
TO AMEND HIS COMPLAINT, IF HE SO DESIRES, TO MEET THESE REQUIREMENTS. 
IN THE EVENT OF A NEW TRIAL HE, OF COURSE, BEARS THE BURDEN OF PROOF OF
SUCH ALLEGATIONS. 

                                        IV. 

FINALLY, IT HAS BEEN ARGUED THAT PERMITTING STATE ACTION HERE WOULD
IMPINGE UPON NATIONAL LABOR POLICY BECAUSE THE AVAILABILITY OF A
JUDICIAL REMEDY FOR MALICIOUS LIBEL WOULD CAUSE EMPLOYERS AND UNIONS TO
SPURN APPROPRIATE ADMINISTRATIVE SANCTIONS FOR CONTEMPORANEOUS
VIOLATIONS OF THE ACT.  WE DISAGREE.  WHEN THE BOARD AND STATE LAW
FROWN UPON THE PUBLICATION OF MALICIOUS LIBEL, ALBEIT FOR DIFFERENT
REASONS, IT MAY BE EXPECTED THAT THE INJURED PARTY WILL REQUEST BOTH
ADMINISTRATIVE AND JUDICIAL RELIEF.  THE BOARD WOULD NOT BE IGNORED
SINCE ITS SANCTIONS ALONE CAN ADJUST THE EQUILIBRIUM DISTURBED BY AN
UNFAIR LABOR PRACTICE.  IF A MALICIOUS LIBEL CONTRIBUTED TO UNION
VICTORY IN A CLOSELY FOUGHT ELECTION, FEW EMPLOYERS WOULD BE SATISFIED
WITH SIMPLY DAMAGES FOR "PERSONAL" INJURY CAUSED BY THE DEFAMATION.  AN
UNSUCCESSFUL UNION WOULD ALSO SEEK TO SET THE ELECTION RESULTS ASIDE AS
THE FRUITS OF AN EMPLOYER'S MALICIOUS LIBEL.  AND A UNION MAY BE
EXPECTED TO REQUEST SIMILAR RELIEF FOR DEFAMATORY STATEMENTS WHICH
CONTRIBUTE TO THE VICTORY OF A COMPETING UNION.  NOR WOULD THE COURTS
AND THE BOARD ACT AT CROSS PURPOSES SINCE, AS WE HAVE SEEN, THEIR
POLICIES WOULD NOT BE INCONSISTENT. 

AS WAS SAID IN GARRISON V. LOUISIANA, 379 U.S. 64, 75:  "THE USE OF
THE KNOWN LIE AS A TOOL IS AT ONCE AT ODDS WITH THE PREMISES OF
DEMOCRATIC GOVERNMENT AND WITH THE ORDERLY MANNER IN WHICH ECONOMIC,
SOCIAL, OR POLITICAL CHANGE IS TO BE EFFECTED."  WE BELIEVE THAT UNDER
THE RULES LAID DOWN HERE IT CAN BE APPROPRIATELY REDRESSED WITHOUT
CURTAILMENT OF STATE LIBEL REMEDIES BEYOND THE ACTUAL NEEDS OF NATIONAL
LABOR POLICY.  HOWEVER, IF EXPERIENCE SHOWS THAT A GREATER CURTAILMENT,
EVEN A TOTAL ONE, SHOULD BE NECESSARY TO PREVENT IMPAIRMENT OF THAT
POLICY, THE COURT WILL BE FREE TO RECONSIDER TODAY'S HOLDING.  WE DEAL
HERE NOT WITH A CONSTITUTIONAL ISSUE BUT SOLELY WITH THE DEGREE TO
WHICH STATE REMEDIES HAVE BEEN PRE-EMPTED BY THE ACT.  REVERSED AND
REMANDED. 

FN1  E.G., BRANTLEY V. DEVEREAUX, 237 F. SUPP. 156 (D.C.E.D.S.C.
1965); MEYER V. JOINT COUNCIL 53, INT'L BRO. OF TEAMSTERS, 416 PA. 401,
206 A.2D 382, PETITION FOR CERT. DISMISSED UNDER RULE 60, 382 U.S. 897
(1965).  BLUM V. INTERNATIONAL ASSN. OF MACHINISTS, 42 N.J.  389, 201
A.2D 46 (1964). 

FN2  WE ADOPT THIS TERMINOLOGY TO AVOID CONFUSION WITH THE CONCEPT OF
LIBEL PER SE, APPLIED IN MANY STATES SIMPLY TO DESIGNATE WORDS WHOSE
DEFAMATORY NATURE APPEARS WITHOUT CONSIDERATION OF EXTRINSIC FACTS. 
ALTHOUGH LINN'S COMPLAINT ALLEGES THAT THE LEAFLETS WERE "LIBELOUS PER
SE," HIS FAILURE TO SPECIFY THE MANNER IN WHICH THEIR PUBLICATION
HARMED HIM INDICATES THAT HE MEANT TO RELY ON THE PRESUMPTION OF
DAMAGES.  UNDER OUR PRESENT HOLDING LINN MUST SHOW THAT HE WAS INJURED
BY THE CIRCULATION OF THE STATEMENTS; THIS NECESSARILY INCLUDES PROOF
THAT THE WORDS HAD A DEFAMATORY MEANING. 

FN3  THE CONGRESS HAS DECLARED IN THE ACT THAT EMPLOYEES HAVE THE
RIGHT TO SELF-ORGANIZATION, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITY FOR MUTUAL AID AND PROTECTION.  SEC. 7.  IN SEC. 8(A) CONGRESS
HAS MADE IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF SEC. 7 RIGHTS.  LIKEWISE, SEC. 8(B)
PROTECTS THESE RIGHTS AGAINST INTERFERENCE BY A LABOR ORGANIZATION OR
ITS AGENTS.  AND SEC. 8(C) PROVIDES THAT THE EXPRESSION OF ANY VIEWS OR
OPINIONS "SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR
PRACTICE  ...  IF SUCH EXPRESSION CONTAINS NO THREAT OF REPRISAL OR
FORCE OR PROMISE OF BENEFIT."  IN ADDITION, SEC. 9(C)(1) AUTHORIZES THE
BOARD, UNDER CERTAIN CONDITIONS, TO CONDUCT REPRESENTATION ELECTIONS
AND CERTIFY THE RESULTS THEREOF.  FINALLY, SEC. 10 GRANTS THE BOARD
EXCLUSIVE POWER TO ENFORCE THE PROHIBITIONS OF THE ACT. 

FN4  SEE BOK, THE REGULATION OF CAMPAIGN TACTICS IN REPRESENTATION
ELECTIONS UNDER THE NATIONAL LABOR RELATIONS ACT, 78 HARV. L. REV. 38,
66 (1964). 

FN5  THE WORDING OF THE STATUTE INDICATES, HOWEVER, THAT SEC. 8(C)
WAS NOT DESIGNED TO SERVE THIS INTEREST BY IMMUNIZING ALL STATEMENTS
MADE IN THE COURSE OF A LABOR CONTROVERSY.  RATHER, SEC. 8(C) PROVIDES
THAT THE "EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION  ...  SHALL NOT
CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR PRACTICE  ...  IF SUCH
EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OF
BENEFIT."  61 STAT. 142 (1947), 29 U.S.C. SEC 158(C) (1964 ED.).  IT IS
MORE LIKELY THAT CONGRESS ADOPTED THIS SECTION FOR A NARROWER PURPOSE,
I.E., TO PREVENT THE BOARD FROM ATTRIBUTING ANTI-UNION MOTIVE TO AN
EMPLOYER ON THE BASIS OF HIS PAST STATEMENTS.  SEE H.R. REP. NO. 510,
80TH CONG., 1ST SESS., 45 (1947).  COMPARISON WITH THE EXPRESS
PROTECTION GIVEN UNION MEMBERS TO CRITIZE THE MANAGEMENT OF THEIR
UNIONS AND THE CONDUCT OF THEIR OFFICERS, 73 STAT. 523 (1959), 29
U.S.C. SEC 411(A)(2) (1964 ED.), STRENGTHENS THIS INTERPRETATION OF
CONGRESSIONAL INTENT. 

FN6  THE FACT THAT THE BOARD HAS NO AUTHORITY TO GRANT EFFECTIVE
RELIEF AGGRAVATES THE STATE'S CONCERN SINCE THE REFUSAL TO REDRESS AN
OTHERWISE ACTIONABLE WRONG CREATES DISRESPECT FOR THE LAW AND
ENCOURAGES THE VICTIM TO TAKE MATTERS INTO HIS OWN HANDS.  THE FUNCTION
OF LIBEL SUITS IN PREVENTING VIOLENCE HAS LONG BEEN RECOGNIZED. 
DEVELOPMENTS IN THE LAW - DEFAMATION, 69 HARV. L. REV. 875, 933
(1956).  BUT AS TO CRIMINAL LIBEL SUITS SEE GARRISON V. LOUISIANA, 379
U.S. 64 (1964). 

FN7  THE GOVERNMENT, AS AMICUS CURIAE, HAS URGED US TO GO FURTHER. 
IT WOULD LIMIT LIABILITY TO "GRAVE" DEFAMATIONS - THOSE WHICH ACCUSE
THE DEFAMED PERSON OF HAVING ENGAGED IN CRIMINAL, HOMOSEXUAL,
TREASONABLE, OR OTHER INFAMOUS CONDUCT.  WE CANNOT AGREE.  THIS WOULD
IMPOSE ARTIFICIAL CHARACTERIZATIONS THAT WOULD ENCROACH TOO HEAVILY
UPON STATE JURISDICTION. 

FN8  IT SHOULD BE NOTED THAT PUNITIVE DAMAGES WERE AWARDED IN
LABURNUM AND RUSSELL.  IN BOTH INSTANCES THERE WAS PROOF OF
COMPENSATORY INJURY RESULTING FROM THE DEFENDANTS' VIOLENCE. 

MR. JUSTICE BLACK, DISSENTING. 

THE COURT HOLDS THAT AN INDIVIDUAL PARTICIPANT ON THE EMPLOYER'S SIDE
OF A LABOR DISPUTE CAN SUE THE UNION FOR LIBEL ON ACCOUNT OF CHARGES
MADE BY THE UNION IN THE HEAT OF THE DISPUTE.  BY THE SAME TOKEN I
ASSUME THAT UNDER THE COURT'S HOLDING, INDIVIDUAL LABOR UNION MEMBERS
NOW HAVE THE RIGHT TO SUE THEIR EMPLOYERS WHEN THEY SAY NAUGHTY THINGS
DURING LABOR DISPUTES.  THIS NEW COURT-MADE LAW TOSSES A MONKEY WRENCH
INTO THE COLLECTIVE BARGAINING MACHINERY CONGRESS SET UP TO TRY TO
SETTLE LABOR DISPUTES, AND AT THE SAME TIME EXALTS THE LAW OF LIBEL TO
AN EVEN HIGHER LEVEL OF IMPORTANCE IN THE REGULATION OF DAY-TO-DAY LIFE
IN THIS COUNTRY. 

WHEN CONGRESS PASSED THE NATIONAL LABOR RELATIONS ACT, IT MUST HAVE
KNOWN, AS ALMOST ALL PEOPLE DO, THAT IN LABOR DISPUTES BOTH SIDES ARE
MASTERS OF THE ARTS OF VILIFICATION, INVECTIVE AND EXAGGERATION.  IN
PASSING THIS LAW CONGRESS INDICATED NO PURPOSE TO TRY TO PURIFY THE
LANGUAGE OF LABOR DISPUTES OR FORCE THE DISPUTANTS TO SAY NICE THINGS
ABOUT ONE ANOTHER.  NOR DO I BELIEVE CONGRESS INTENDED TO LEAVE
PARTICIPANTS FREE TO SUE ONE ANOTHER FOR LIBEL FOR INSULTS THEY HURL AT
ONE ANOTHER IN THE HEAT OF BATTLE.  THE OBJECT OF THE NATIONAL LABOR
RELATIONS ACT WAS TO BRING ABOUT AGREEMENTS BY COLLECTIVE BARGAINING,
NOT TO ADD FUEL TO THE FIRE BY ENCOURAGING LIBEL SUITS WITH THEIR
INEVITABLE IRRITATIONS AND DISPUTE-PROLONGING TENDENCIES.  YET IT IS
DIFFICULT TO CONCEIVE OF AN ELEMENT MORE CERTAIN TO CREATE IRRITATIONS
GUARANTEED TO PREVENT FRUITFUL COLLECTIVE BARGAINING DISCUSSIONS THAN
THE THREAT OR PRESENCE OF A LARGE MONETARY JUDGMENT GAINED IN A LIBEL
SUIT GENERATING ANGER AND A DESIRE FOR VENGEANCE ON THE PART OF ONE OR
THE OTHER OF THE BARGAINING PARTIES.  I THINK, THEREFORE, THAT LIBEL
SUITS ARE NOT ONLY "ARGUABLY" BUT INEVITABLY IN CONFLICT WITH THE BASIC
PURPOSE OF THE ACT TO SETTLE DISPUTES PEACEABLY - NOT TO AGGRAVATE
THEM, BUT TO END THEM.  FOR THIS REASON I WOULD AFFIRM THE JUDGMENT OF
THE TWO LOWER COURTS. 

MOREOVER, WE HELD IN THORNHILL V. ALABAMA, 310 U.S. 88, 102, THAT "IN
THE CIRCUMSTANCES OF OUR TIMES THE DISSEMINATION OF INFORMATION
CONCERNING THE FACTS OF A LABOR DISPUTE MUST BE REGARDED AS WITHIN THAT
AREA OF FREE DISCUSSION THAT IS GUARANTEED BY THE CONSTITUTION." 
DISCUSSION IS NOT FREE, HOWEVER, WITHIN THE MEANING OF OUR FIRST
AMENDMENT, IF THAT DISCUSSION MAY BE PENALIZED BY JUDGMENTS FOR DAMAGES
IN LIBEL ACTIONS.  SEE THE CONCURRING OPINIONS OF MR. JUSTICE DOUGLAS
AND MYSELF IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, AND
GARRISON V. LOUISIANA, 379 U.S. 64, AND MY OPINION IN ROSENBLATT V.
BAER, POST, P. 94.  IT IS RATHER STRANGE FOR THIS COURT TO IMPORT ITS
NOVEL IDEAS ON LIBEL SUITS INTO THE AREA OF LABOR CONTROVERSIES WHERE
THE EFFECT IS BOUND TO ABRIDGE THE FREEDOM OF THE PARTIES TO DISCUSS
THEIR DISPUTES AND TO SETTLE THEM THROUGH PEACEFUL NEGOTIATIONS.  IT IS
STRANGE BECAUSE ONE OF THE HOPES OF THOSE RESPONSIBLE FOR MODERN
COLLECTIVE BARGAINING WAS THAT PEACEFUL SETTLEMENTS AMONG THE PARTIES
WORKING BY THEMSELVES UNDER THE AEGIS OF FEDERAL LAW WOULD BE
SUBSTITUTED FOR THE OLD-TIME LABOR FEUDS TOO FREQUENTLY ACCOMPANIED BY
BITTER STRIFE AND WASTEFUL, DANGEROUS CONFLICTS VERGING ON PRIVATE
WAR.  BECAUSE LIBEL SUITS IN MY JUDGMENT ARE INCONSISTENT WITH BOTH THE
CONSTITUTION OF THE UNITED STATES AND THE POLICIES OF THE ACT, I
DISSENT FROM THE HOLDING OF THE COURT REVERSING THE JUDGMENT BELOW. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

IN MY OPINION, THE COURT'S DECISION IN THE PRESENT CASE OPENS A MAJOR
BREACH IN THE WALL WHICH HAS HERETOFORE CONFINED LABOR DISPUTES TO THE
AREA AND WEAPONRY DEFINED BY FEDERAL LABOR LAW, EXCEPT WHERE VIOLENCE
OR INTIMIDATION IS INVOLVED.  BY ARMING THE DISPUTANTS WITH THE WEAPON
OF LIBEL SUITS AND THE THREAT OF PUNITIVE DAMAGES THE COURT JEOPARDIZES
THE MEASURE OF STABILITY PAINSTAKINGLY ACHIEVED IN LABOR-MANAGEMENT
RELATIONS.  IT INTRODUCES A POTENTIALLY DISRUPTIVE DEVICE INTO THE
COMPREHENSIVE STRUCTURE CREATED BY CONGRESS FOR RESOLVING THESE
DISPUTES.  IN SO DOING, THE COURT NOT ONLY SANCTIONS AN ARRANGEMENT
INCONSISTENT WITH THE INTENT OF CONGRESS, BUT, I THINK, DEPARTS FROM
ITS OWN DECISIONS NARROWLY LIMITING THE OCCASIONS ON WHICH THE
DISPUTANTS MAY, OUTSIDE THE STATUTORY FRAMEWORK, LITIGATE ISSUES
ARISING IN LABOR DISPUTES. 

IN MY JUDGMENT, THE STRUCTURE PROVIDED BY CONGRESS FOR THE HANDLING
OF LABOR-MANAGEMENT CONTROVERSIES PRECLUDES ANY COURT FROM ENTERTAINING
A LIBEL SUIT BETWEEN PARTIES TO A LABOR DISPUTE OR THEIR AGENTS WHERE
THE ALLEGEDLY DEFAMATORY STATEMENT IS CONFINED TO MATTERS WHICH ARE
PART OF THE FABRIC OF THE DISPUTE.  THE PRESENT CONTROVERSY IS JUST
SUCH A CASE. 

PETITIONER LINN IS AN OFFICER OF THE EMPLOYER SOUGHT TO BE ORGANIZED
BY RESPONDENT UNION.  THE ALLEGEDLY DEFAMATORY STATEMENTS, SET OUT IN
THE OPINION OF THE COURT, RELATE TO MANAGEMENT CONDUCT DURING THE
COURSE OF THE DISPUTE.  THE LEAFLETS IN QUESTION ALLEGEDLY ACCUSE
MANAGEMENT OF LYING BOTH TO THE NLRB AND TO EMPLOYEES IN ORDER TO
DEPRIVE SOME EMPLOYEES OF THEIR RIGHT TO VOTE IN NLRB ELECTIONS AND TO
CERTAIN PAY INCREASES. 

AS AN ILLUSTRATION OF THE KIND OF HYPERBOLE CHARACTERISTIC OF LABOR
MANAGEMENT STRIFE, THIS "LIBEL" IS HARDLY INCENDIARY.  TO THE
EXPERIENCED EYE, IT IS PALE AND ANEMIC WHEN COMPARED WITH THE RICH AND
COLORFUL CHARGES FREELY EXCHANGED IN THE HEAT OF MANY LABOR DISPUTES. 
(FN1) 

IN RESPONSE TO SUCH A PALLID "LIBEL," THE COURT TODAY HOLDS THAT
PETITIONER, PERCEIVING HIMSELF THE TARGET OF A PURPORTEDLY FALSE AND
DEFAMATORY STATEMENT, MAY SUE THE UNION AND SEVERAL OF ITS OFFICERS FOR
DAMAGES - SO LONG AS HE PLEADS THAT THE STATEMENT IS DEFAMATORY, WAS
MADE WITH MALICE, AND CAUSED SOME INJURY TO HIM.  SHOULD HE SUCCEED IN
CLEARING THE HURDLES THUS SET IN HIS PATH, HE MAY RECOVER NOT ONLY
COMPENSATION FOR HIS "INJURIES," BUT PUNITIVE OR EXEMPLARY DAMAGES AS
WELL.  THESE REQUIREMENTS THAT PETITIONER PLEAD AND PROVE BOTH MALICE
AND SPECIAL DAMAGES - ARISING FROM WHAT I REGARD AS THE COURT'S WELL
FOUNDED CONCERN THAT LIBEL SUITS MIGHT OTHERWISE "POSE A THREAT TO THE
STABILITY OF LABOR UNIONS AND SMALLER EMPLOYERS" - MAY BE COLD COMFORT
TO THE POTENTIAL DEFENDANT IN A LIBEL SUIT.  "MALICE," WHICH THE COURT
DEFINES AS A DELIBERATE INTENTION TO FALSIFY OR A MALEVOLENT DESIRE TO
INJURE, IS, AFTER ALL, A LARGELY SUBJECTIVE STANDARD, RESPONSIVE TO THE
INGENUITY OF TRIAL COUNSEL AND THE PREDILECTIONS OF JUDGE AND JURY. 
AND "INJURY" RESULTING FROM WORDS IS NOT LIMITED TO TANGIBLE TRAUMA. 
THESE REQUIREMENTS AFFORD DUBIOUS DEFENSE ON A BATTLEFIELD FROM WHICH
THE QUALIFIED UMPIRE - THE NLRB - HAS BEEN REMOVED.  IN A LIBEL SUIT,
THE OUTCOME IS DETERMINED BY STANDARDS ALIEN TO THE SUBJECT MATTER OF
LABOR RELATIONS, BY CONSIDERATIONS WHICH DO NOT TAKE INTO ACCOUNT THE
COMPLEX AND SUBTLE VALUES THAT ARE AT STAKE, AND BY A JURY UNFAMILIAR
WITH THE QUALITY OF RHETORIC CUSTOMARY IN LABOR DISPUTES.  THE OUTCOME,
IN FACT, IS MORE APT TO REFLECT IMMEDIATE COMMUNITY ATTITUDES TOWARD
UNIONIZATION THAN APPRECIATION FOR THE UNDERLYING, LONG-TERM
PERPLEXITIES OF THE INTERPLAY OF MANAGEMENT AND LABOR IN A DEMOCRATIC
SOCIETY. 

UNTIL TODAY, THE DECISIONS OF THIS COURT HAVE CONSISTENTLY HELD THAT
THE FEDERAL STRUCTURE FOR RESOLVING LABOR DISPUTES MAY NOT BE BREACHED
OR ENCUMBERED BY STATE REMEDIES WHERE THE TORTIOUS CONDUCT ALLEGEDLY
INVOLVED IS EITHER PROTECTED OR PROHIBITED BY FEDERAL LABOR
LEGISLATION, OR EVEN "ARGUABLY SUBJECT TO" FEDERAL LAW  (FN2) - AND
DESPITE THE INABILITY OF THE NLRB TO REDRESS THE PECUNIARY HARM
SUFFERED BY THE VICTIM.  IN GARNER V. TEAMSTERS UNION, 346 U.S. 485,
THE COURT HELD THAT STATE COURTS MAY NOT ENJOIN PEACEFUL PICKETING
WHERE PLAINTIFF'S GRIEVANCE IS WITHIN THE JURISDICTION OF THE NLRB.  IN
GUSS V. UTAH LABOR BOARD, 353 U.S. 1, THE COURT HELD THAT EVEN WHERE
THE NLRB DECLINES TO EXERCISE ITS CONCEDED JURISDICTION OVER A LABOR
DISPUTE "AFFECTING COMMERCE," A PARALLEL REMEDY BEFORE A STATE BOARD IS
NONETHELESS PRE-EMPTED.  AND IN SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236, THE COURT CONCLUDED THAT STATE COURTS MAY NOT
AWARD DAMAGES FOR PEACEFUL PICKETING, ALTHOUGH THE CONDUCT INVOLVED WAS
ONLY "ARGUABLY SUBJECT" TO THE FEDERAL STATUTE AND DESPITE THE NLRB'S
DECISION NOT TO EXERCISE JURISDICTION.  (FN3)  SEE ALSO LINER V. JAFCO,
INC., 375 U.S. 301; PLUMBERS' UNION V. BORDEN, 373 U.S. 690; LOCAL 438,
CONSTR.  LABORERS V. CURRY, 371 U.S. 542.  TODAY MARKS THE FIRST
DEPARTURE FROM WHAT HAS BECOME A WELL-ESTABLISHED RULE THAT ONLY WHERE
THE PUBLIC'S COMPELLING INTEREST IN PREVENTING VIOLENCE OR THE THREAT
OF VIOLENCE IS INVOLVED CAN THE EXCLUSIVENESS OF THE FEDERAL STRUCTURE
FOR RESOLVING LABOR DISPUTES BE BREACHED.  AS WAS SAID IN GARMON, 359
U.S., AT 247:  "EVEN THE STATES' SALUTARY EFFORT TO REDRESS PRIVATE
WRONGS OR GRANT COMPENSATION FOR PAST HARM CANNOT BE EXERTED TO
REGULATE ACTIVITIES THAT ARE POTENTIALLY SUBJECT TO THE EXCLUSIVE
FEDERAL REGULATORY SCHEME."  THE MAJORITY'S OPINION FAILS TO MAKE CLEAR
WHY THE PARTICIPANT'S INTEREST IN PROTECTING HIS REPUTATION FROM THE
STING OF WORDS UTTERED AS PART OF A LABOR DISPUTE IS A COMPELLING
CONCERN WHICH THIS COURT MUST ALLOW THE STATES TO PROTECT, WHILE HIS
INTEREST IN PRESERVING HIS ECONOMIC WELL-BEING FROM ILLEGAL PICKETING
IS NOT. 

BY NARROWLY RESTRICTING THE PERMISSIBLE EXCEPTIONS TO THE GENERAL
RULE OF PRE-EMPTION AND BY EXCLUDING GENERALLY THE RIGHT TO
COMPENSATION FOR PURELY PRIVATE WRONGS, THE COURT HAS CONTRIBUTED TO
THE NATION'S SUCCESS IN DOMESTICATING THE POTENTIALLY EXPLOSIVE WARFARE
BETWEEN LABOR AND MANAGEMENT.  THE DECISION ANNOUNCED TODAY THREATENS
THE DEGREE OF EQUILIBRIUM WHICH HAS BEEN ACHIEVED.  I THINK THAT THE
COURT'S DECISION BOTH UNDERESTIMATES THE DAMAGE LIBEL SUITS MAY INFLICT
ON THE EQUILIBRIUM, AND OVERESTIMATES THE EFFECTIVENESS OF THE
RESTRAINT WHICH WILL RESULT FROM SUPERIMPOSED REQUIREMENTS OF MALICE
AND SPECIAL DAMAGES. 

I FIND SUPPORT FOR MY VIEW IN THE EVIDENCE AS TO THE INTENT OF
CONGRESS.  AS THE MAJORITY CONCEDES, CONGRESS HAS IN UNMISTAKABLE TERMS
RECOGNIZED THE IMPORTANCE OF LABOR-MANAGEMENT DIALOGUE UNTRAMMELLED BY
FEAR OF RETRIBUTION FOR STRONG UTTERANCES.  IT HAS MANIFESTED AWARENESS
THAT LUSTY SPEECH PROVIDES A USEFUL SAFETY VALVE FOR THE TENSIONS WHICH
OFTEN ACCOMPANY THESE CONTROVERSIES.  FOR EXAMPLE, CONGRESS HAS
PROVIDED THAT AN UNFAIR LABOR PRACTICE CHARGE MAY NOT BE BASED ON THE
"EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION  ...  IF SUCH EXPRESSION
CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT."  29
U.S.C.  SEC. 158(C) (1964 ED.).  (FN4)  AND ONE OF ITS STATUTES, 29
U.S.C. SEC. 411(A)(2) (1964 ED.), HAS BEEN CONSTRUED TO PREVENT UNIONS
FROM DISCIPLINING MEMBERS WHO UTTER DEFAMATORY STATEMENTS DURING THE
COURSE OF INTERNAL UNION DISPUTES.  SALZHANDLER V. CAPUTO, 316 F.2D 445
(C.A.2D CIR.), CERT. DENIED, 375 U.S. 946; COLE V. HALL, 339 F.2D 881
(C.A.2D CIR.); STARK V. TWIN CITY CARPENTERS DIST. COUNCIL, 219 F.
SUPP. 528 (D.C.D. MINN.). WHERE CONGRESS WISHES TO CREATE AN EXCEPTION
TO THE GENERAL RULE OF EXCLUSIVE NLRB JURISDICTION, IT DOES SO
EXPLICITLY.  SEE 29 U.S.C. SEC. 187 (1964 ED.), AUTHORIZING SUITS FOR
DAMAGES ARISING OUT OF VIOLATIONS OF 29 U.S.C. SEC. 158, AND 29 U.S.C.
SEC 164, AUTHORIZING JUDICIAL REMEDIES WHERE THE NLRB DECLINES TO
ASSERT JURISDICTION UNDER 29 U.S.C. SEC 151 (1964 ED.). 

THE FOREGOING CONSIDERATIONS DO NOT APPLY TO THE EXTENT THAT THE USE
OF VERBAL WEAPONS DURING LABOR DISPUTES IS NOT CONFINED TO ANY ISSUE IN
THE DISPUTE, OR INVOLVES A PERSON WHO IS NEITHER PARTY TO NOR AGENT OF
A PARTY TO THE DISPUTE.  IN SUCH INSTANCES, PERHAPS THE COURTS OUGHT TO
BE FREE TO REDRESS WHATEVER PRIVATE WRONG HAS BEEN SUFFERED.  BUT THIS
IS NOT SUCH A CASE.  THE FACT THAT THE COURT TODAY RULES THAT, AFTER
APPROPRIATE AMENDMENT OF THE COMPLAINT, A LIBEL ACTION MAY BE
MAINTAINED ON THE BASIS OF THE CIRCUMSCRIBED ACCUSATION CONTAINED IN
THE LEAFLET IN QUESTION DEMONSTRATES HOW VERY SUBSTANTIAL IS THE BREACH
OPENED IN THE WALL WHICH HAS HERETOFORE INSULATED LABOR DISPUTES FROM
THE VAGARIES OF LAWSUITS.  (FN5)  I WOULD AFFIRM THE DECISION BELOW. 

FN1  COMPARE, FOR EXAMPLE, THE CONSIDERABLY MORE IMAGINATIVE USE OF
VITUPERATION REFLECTED IN THE ALLEGEDLY DEFAMATORY STATEMENT IN UNITED
STEELWORKERS OF AMERICA V. R.H. BOULIGNY, INC., 382 U.S. 145.  A
DESCRIPTION OF THE STATEMENT IS FOUND IN BRIEF FOR RESPONDENT, P. 2
(NO. 19, O.T. 1965). 

FN2  SUITS TO ENFORCE COLLECTIVE BARGAINING AGREEMENTS HAVE BEEN HELD
TO ARISE UNDER 29 U.S.C. SEC. 185(A) (1964 ED.)  AND HENCE ARE NOT
WITHIN THE REACH OF THE PRE-EMPTION DOCTRINE.  SEE SMITH V. EVENING
NEWS ASSN., 371 U.S. 195; SOVERN, SECTION 301 AND THE PRIMARY
JURISDICTION OF THE NLRB, 76 HARV. L. REV. 529 (1963). 

FN3  SUBSEQUENT TO GARMON AND GUSS, CONGRESS HAS EXPLICITLY REMOVED
THE OBSTANCES TO STATE-COURT TREATMENT OF LABOR DISPUTES AS TO WHICH
THE NLRB HAS DECLINED TO EXERCISE JURISDICTION ON THE GROUND OF
INSUFFICIENT EFFECT ON INTERSTATE COMMERCE.  29 U.S.C. SEC.  164(C)(2)
(1964 ED.). 

FN4  ALTHOUGH LIBELOUS STATEMENTS CANNOT SERVE AS THE PREDICATE FOR
AN UNFAIR LABOR PRACTICE CHARGE, LIKE ANY OTHER MISLEADING STATEMENT
THEY MAY IN CERTAIN CIRCUMSTANCES INDUCE THE NLRB TO SET ASIDE THE
RESULTS OF AN ELECTION.  SEE BOK, THE REGULATION OF CAMPAIGN TACTICS IN
REPRESENTATION ELECTIONS UNDER THE NATIONAL LABOR RELATIONS ACT, 78
HARV. L. REV. 38, 82-84 (1964). 

FN5  RESORT TO LIBEL SUITS AS AN AUXILLARY WEAPON IN RESOLVING LABOR
DISPUTES PRESENTS MUCH MORE THAN AN ABSTRACT THREAT.  FOR EVIDENCE OF A
GROWING TENDENCY TO INVOKE THESE SUITS SEE THE LIST OF SUCH CASES
RECENTLY PENDING IN THE FOURTH CIRCUIT ALONE IN BRIEF FOR PETITIONER,
P. 15, UNITED STEELWORKERS OF AMERICA V. R.H. BOULIGNY, INC., SUPRA;
AND THOSE DISCUSSED AT PP. 18-39 OF THE APPENDIX TO THE BRIEF FILED BY
RESPONDENTS IN NOS.  89 AND 94, O.T. 1965, AND IN THE PRESENT CASE AS
AMICI CURIAE. 
..END :






ROSENBLATT V. BAER 383 U.S. 75 


NO. 38.  ARGUED OCTOBER 20, 1965.  - DECIDED FEBRUARY 21, 1966.  - 106
N.H. 26, 203 A.2D 773, REVERSED AND REMANDED. 


RESPONDENT, THE FORMER SUPERVISOR OF A COUNTY RECREATION AREA WHO WAS
EMPLOYED BY AND RESPONSIBLE TO THE THREE COUNTY COMMISSIONERS, BROUGHT
THIS CIVIL LIBEL ACTION IN A NEW HAMPSHIRE STATE COURT AGAINST
PETITIONER WHOSE NEWSPAPER COLUMN ALLEGEDLY CRITICIZED THE FISCAL
MANAGEMENT OF THE AREA UNDER RESPONDENT'S REGIME AND ASKED THE
QUESTIONS, "WHAT HAPPENED TO ALL THE MONEY LAST YEAR?  AND EVERY OTHER
YEAR?"  RESPONDENT OFFERED EXTRINSIC PROOFS THAT THE COLUMN IMPUTED
MISMANAGEMENT AND PECULATION DURING RESPONDENT'S TENURE ON THE THEORIES
(1) THAT THE JURY COULD AWARD RESPONDENT DAMAGES IF IT FOUND THAT THE
COLUMN CAST SUSPICION INDISCRIMINATELY ON THE FORMER SMALL MANAGEMENT
GROUP WHETHER OR NOT IT ATTRIBUTED THE MISCONDUCT SPECIFICALLY TO
RESPONDENT AND (2) THAT THE COLUMN WAS READ AS SPECIFICALLY REFERRING
TO RESPONDENT AS THE PERSON RESPONSIBLE FOR THE AREA'S FINANCIAL
AFFAIRS.  THE JURY WAS INSTRUCTED THAT "AN IMPLICATION OF CRIME TO ONE
OR SOME OF A SMALL GROUP THAT CASTS SUSPICION ON ALL IS ACTIONABLE,"
AND THAT DEFAMATORY COMMENT WAS JUSTIFIED IF MADE WITHOUT MALICE AND
REPRESENTED FAIR COMMENT ON MATTERS OF PUBLIC INTEREST, "MALICE" BEING
DEFINED TO INCLUDE "ILL WILL, EVIL MOTIVE, INTENTION TO INJURE  ...  "
AND THE JURY WAS PERMITTED TO FIND THAT NEGLIGENT MISSTATEMENT OF FACT
WOULD DEFEAT PETITIONER'S PRIVILEGE OF FREE EXPRESSION.  THE JURY
AWARDED RESPONDENT DAMAGES AND THE STATE SUPREME COURT AFFIRMED,
FINDING NO BAR IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, WHICH
HAD BEEN DECIDED AFTER THE TRIAL.  HELD: 

1.  AN OTHERWISE IMPERSONAL ATTACK ON GOVERNMENTAL OPERATIONS CANNOT
BE USED TO ESTABLISH DEFAMATION OF THOSE ADMINISTERING SUCH OPERATIONS
ABSENT EVIDENCE THAT THE IMPLICATION OF WRONGDOING WAS READ AS
SPECIFICALLY DIRECTED AT THE PLAINTIFF, WHETHER HE IS CONSIDERED A
PUBLIC OFFICIAL OR A MEMBER OF A GROUP RESPONSIBLE FOR GOVERNMENTAL
OPERATIONS, AND WHETHER OR NOT OTHERS WERE ALSO IMPLICATED.  THE TRIAL
JUDGE'S INSTRUCTION WAS ERRONEOUS TO THE EXTENT THAT IT AUTHORIZED THE
JURY TO AWARD RESPONDENT DAMAGES WITHOUT REGARD TO EVIDENCE THAT THE
ASSERTED IMPLICATION OF THE COLUMN WAS MADE WITH SPECIFIC REFERENCE TO
HIM.  NEW YORK TIMES, SUPRA, FOLLOWED.  PP. 79-83. 

2.  A GOVERNMENT EMPLOYEE HAVING OR APPEARING TO THE PUBLIC TO HAVE
SUBSTANTIAL RESPONSIBILITY FOR OR CONTROL OVER THE CONDUCT OF
GOVERNMENTAL AFFAIRS IS A "PUBLIC OFFICIAL" AND AS SUCH UNDER NEW YORK
TIMES, SUPRA, AND GARRISON V. LOUISIANA, 379 U.S. 64, CANNOT RECOVER
DAMAGES FOR DEFAMATORY COMMENT ABOUT HIS OFFICIAL CONDUCT UNLESS HE
PROVES ACTUAL MALICE, I.E., THAT SUCH COMMENT IS MADE WITH KNOWLEDGE OF
ITS FALSITY OR WITH RECKLESS DISREGARD OF WHETHER IT IS TRUE OR FALSE. 
PP. 84-86. 

(A)  WHETHER A PERSON IS A "PUBLIC OFFICIAL" AS THAT TERM IS USED IN
NEW YORK TIMES IS NOT DETERMINED UNDER STATE-LAW STANDARDS.  P. 84. 

(B)  THE TERM "PUBLIC OFFICIAL" SHOULD BE INTERPRETED IN THE LIGHT OF
THE COMPELLING INTEREST IN DEBATE ON PUBLIC ISSUES AND ABOUT THOSE
PERSONS WHO ARE IN A POSITION TO RESOLVE THOSE ISSUES, THOUGH IT IS NOT
NECESSARY HERE, ANY MORE THAN IT WAS IN NEW YORK TIMES, TO DELINEATE
THE PRECISE SCOPE OF THE TERM.  P. 85. 

(C)  THE PROTECTIONS WHICH THE LAW OF DEFAMATION AFFORDS MUST BE
LIMITED BY THE CONSTITUTIONAL PROTECTIONS FOR PUBLIC DISCUSSION.  P.
86. 

3.  SINCE NEW YORK TIMES HAD NOT BEEN DECIDED AT THE TIME OF THE
TRIAL OF THIS CASE, RESPONDENT SHOULD BE ALLOWED TO ADDUCE PROOF THAT
HIS CLAIM FALLS OUTSIDE THE RULE OF THAT DECISION OR THAT PETITIONER'S
COMMENT WAS MADE WITH MALICE AS DEFINED THEREIN, AND ON RETRIAL IT WILL
BE FOR THE TRIAL JUDGE IN THE FIRST INSTANCE TO DETERMINE IF THE PROOFS
SHOW THAT RESPONDENT WAS A "PUBLIC OFFICIAL."  PP. 87-88. 

ROSENBLATT V. BAER. 

CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

A JURY IN NEW HAMPSHIRE SUPERIOR COURT AWARDED RESPONDENT DAMAGES IN
THIS CIVIL LIBEL ACTION BASED ON ONE OF PETITIONER'S COLUMNS IN THE
LACONIA EVENING CITIZEN.  RESPONDENT ALLEGED THAT THE COLUMN CONTAINED
DEFAMATORY FALSEHOODS CONCERNING HIS PERFORMANCE AS SUPERVISOR OF THE
BELKNAP COUNTY RECREATION AREA, A FACILITY OWNED AND OPERATED BY
BELKNAP COUNTY.  IN THE INTERVAL BETWEEN THE TRIAL AND THE DECISION OF
PETITIONER'S APPEAL BY THE NEW HAMPSHIRE SUPREME COURT, WE DECIDED NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254.  WE THERE HELD THAT
CONSISTENT WITH THE FIRST AND FOURTEENTH AMENDMENTS A STATE CANNOT
AWARD DAMAGES TO A PUBLIC OFFICIAL FOR DEFAMATORY FALSEHOOD RELATING TO
HIS OFFICIAL CONDUCT UNLESS THE OFFICIAL PROVES ACTUAL MALICE - THAT
THE FALSEHOOD WAS PUBLSIHED WITH KNOWLEDGE OF ITS FALSITY OR WITH
RECKLESS DISREGARD OF WHETHER IT WAS TRUE OR FALSE.  THE NEW HEMPSHIRE
SUPREME COURT AFFIRMED THE AWARD, FINDING NEW YORK TIMES NO BAR.  106
N.H. 26, 203 A.2D 773.  WE GRANTED CERTIORARI AND REQUESTED THE PARTIES
TO BRIEF AND ARGUE, IN ADDITION TO THE QUESTIONS PRESENTED IN THE
PETITION FOR CERTIORARI, THE QUESTION WHETHER RESPONDENT WAS A "PUBLIC
OFFICIAL" UNDER NEW YORK TIMES AND UNDER OUR DECISION IN GARRISON V.
LOUISIANA, 379 U.S. 64.  380 U.S. 941. 

THE RECREATION AREA WAS USED PRINCIPALLY AS A SKI RESORT BUT ALSO FOR
OTHER RECREATIONAL ACTIVITIES.  RESPONDENT WAS EMPLOYED BY AND DIRECTLY
RESPONSIBLE TO THE BELKNAP COUNTY COMMISSIONERS, THREE ELECTED
OFFICIALS IN CHARGE OF THE COUNTY GOVERNMENT.  DURING THE 1950'S, A
PUBLIC CONTROVERSY DEVELOPED OVER THE WAY RESPONDENT AND THE
COMMISSIONERS OPERATED THE AREA; SOME PROTESTED THAT RESPONDENT AND THE
COMMISSIONERS HAD NOT DEVELOPED THE AREA'S FULL POTENTIAL, EITHER AS A
RESORT FOR LOCAL RESIDENTS OR AS A TOURIST ATTRACTION THAT MIGHT
CONTRIBUTE TO THE COUNTY'S TAXES.  THE DISCUSSION CULMINATED IN 1959,
WHEN THE NEW HAMPSHIRE LEGISLATURE ENACTED A LAW TRANSFERRING CONTROL
OF THE AREA TO A SPECIAL FIVE-MAN COMMISSION.  (FN1)  AT LEAST IN PART
TO GIVE THIS NEW REGIME A FRESH START, RESPONDENT WAS DISCHARGED. 

PETITIONER REGULARLY CONTRIBUTED AN UNPAID COLUMN TO THE LACONIA
EVENING CITIZEN.  IN IT HE FREQUENTLY COMMENTED ON POLITICAL MATTERS. 
AS AN OUTSPOKEN PROPONENT OF THE CHANGE IN OPERATIONS AT THE RECREATION
AREA, PETITIONER'S VIEWS WERE OFTEN SHARPLY STATED, AND HE HAD
INDICATED DISAGREEMENT WITH THE ACTIONS TAKEN BY RESPONDENT AND THE
COUNTY COMMISSIONERS.  IN JANUARY 1960, DURING THE FIRST SKI SEASON
UNDER THE NEW MANAGEMENT, SOME SIX MONTHS AFTER RESPONDENT'S DISCHARGE,
PETITIONER PUBLISHED THE COLUMN THAT RESPONDENT ALLEGES LIBELED HIM. 
IN RELEVANT PART, IT READS: 

"BEEN DOING A LITTLE LISTENING AND CHECKING AT BELKNAP RECREATION
AREA AND AM THUNDERSTRUCK BY WHAT AM LEARNING. 

"THIS YEAR, A YEAR WITHOUT SNOW TILL VERY LATE, A YEAR WITH ACTUALLY
FEW VERY MAJOR CHANGES IN PROCEDURE; THE DIFFERENCE IN CASH INCOME
SIMPLY FANTASTIC, ALMOST UNBELIEVABLE. 

"ON ANY SORT OF COMPARATIVE BASIS, THE AREA THIS YEAR IS DOING
LITERALLY HUNDREDS OF PER CENT BETTER THAN LAST YEAR. 

"WHEN CONSIDER THAT LAST YEAR WAS EXCELLENT SNOW YEAR, THAT SEASON
STARTED BECAUSE OF MORE SNOW, MONTHS EARLIER LAST YEAR, ONE CAN ONLY
PONDER FOLLOWING QUESTION: 

"WHAT HAPPENED TO ALL THE MONEY LAST YEAR?  AND EVERY OTHER YEAR? 
WHAT MAGIC HAS DANA BEANE (CHAIRMAN OF THE NEW COMMISSION) AND REST OF
COMMISSION, AND MR. WARNER (RESPONDENT'S REPLACEMENT AS SUPERVISOR)
WROUGHT TO MAKE SUCH TREMENDOUS DIFFERENCE IN NET CASH RESULTS?" 

        I. 

THE COLUMN ON ITS FACE CONTAINS NO CLEARLY ACTIONABLE STATEMENT. 
ALTHOUGH THE QUESTIONS "WHAT HAPPENED TO ALL THE MONEY LAST YEAR?  AND
EVERY OTHER YEAR?"  COULD BE READ TO IMPLY PECULATION, THEY COULD ALSO
BE READ, IN CONTEXT, MERELY TO PRAISE THE PRESENT ADMINISTRATION.  THE
ONLY PERSONS MENTIONED BY NAME ARE OFFICIALS OF THE NEW REGIME; NO
REFERENCE IS MADE TO RESPONDENT, THE THREE ELECTED COMMISSIONERS, OR
ANYONE ELSE WHO HAD A PART IN THE ADMINISTRATION OF THE AREA DURING
RESPONDENT'S TENURE.  PERSONS FAMILIAR WITH THE CONTROVERSY OVER THE
AREA MIGHT WELL READ IT AS COMPLIMENTING THE LUCK OR SKILL OF THE NEW
MANAGEMENT IN ATTRACTING INCREASED PATRONAGE AND PRODUCING A
"TREMENDOUS DIFFERENCE IN NET CASH RESULTS" DESPITE LESS FAVORABLE
SNOW; INDEED, WITNESSES FOR PETITIONER TESTIFIED THAT THEY SO READ THE
COLUMN. 

RESPONDENT OFFERED EXTRINSIC PROOFS TO SUPPLY A DEFAMATORY MEANING. 
THESE PROOFS WERE THAT THE COLUMN GREATLY EXAGGERATED ANY IMPROVEMENT
UNDER THE NEW REGIME, AND THAT A LARGE PART OF THE COMMUNITY UNDERSTOOD
IT TO SAY THAT THE ASSERTED IMPROVEMENTS WERE NOT EXPLICABLE BY
ANYTHING THE NEW MANAGEMENT HAD DONE.  RATHER, HIS WITNESSES TESTIFIED,
THEY READ THE COLUMN AS IMPUTING MISMANAGEMENT AND PECULATION DURING
RESPONDENT'S TENURE.  RESPONDENT URGED TWO THEORIES TO SUPPORT A
RECOVERY BASED ON THAT IMPUTATION. 

                          II. 

THE FIRST WAS THAT THE JURY COULD AWARD HIM DAMAGES IF IT FOUND THAT
THE COLUMN CAST SUSPICION INDISCRIMINATELY ON THE SMALL NUMBER OF
PERSONS WHO COMPOSED THE FORMER MANAGEMENT GROUP, WHETHER OR NOT IT
FOUND THAT THE IMPUTATION OF MISCONDUCT WAS SPECIFICALLY MADE OF AND
CONCERNING HIM.  (FN2) THIS THEORY OF RECOVERY WAS OPEN TO RESPONDENT
UNDER NEW HAMPSHIRE LAW; THE TRIAL JUDGE EXPLICITLY INSTRUCTED THE JURY
THAT "AN IMPUTATION OF IMPROPRIETY OR A CRIME TO ONE OR SOME OF A SMALL
GROUP THAT CASTS SUSPICION UPON ALL IS ACTIONABLE."  (FN3)  THE
QUESTION IS PRESENTED, HOWEVER, WHETHER THAT THEORY OF RECOVERY IS
PRECLUDED BY OUR HOLDING IN NEW YORK TIMES THAT, IN THE ABSENCE OF
SUFFICIENT EVIDENCE THAT THE ATTACK FOCUSED ON THE PLAINTIFF, AN
OTHERWISE IMPERSONAL ATTACK ON GOVERNMENTAL OPERATIONS CANNOT BE
UTILIZED TO ESTABLISH A LIBEL OF THOSE ADMINISTERING THE OPERATIONS. 
376 U.S., AT 290-292. 

THE PLAINTIFF IN NEW YORK TIMES WAS ONE OF THE THREE ELECTED
COMMISSIONERS OF THE CITY OF MONTGOMERY, ALABAMA.  HIS DUTIES INCLUDED
THE SUPERVISION OF THE POLICE DEPARTMENT.  THE STATEMENTS IN THE
ADVERTISEMENT UPON WHICH HE PRINCIPALLY RELIED AS REFERRING TO HIM WERE
THAT "TRUCKLOADS OF POLICE  ...  RINGED THE ALABAMA STATE COLLEGE
CAMPUS" AFTER A DEMONSTRATION ON THE STATE CAPITOL STEPS, AND THAT DR.
MARTIN LUTHER KING HAD BEEN "ARRESTED  ...  SEVEN TIMES."  THESE
STATEMENTS WERE FALSE IN THAT ALTHOUGH THE POLICE HAD BEEN "DEPLOYED
NEAR THE CAMPUS," THEY HAD NOT ACTUALLY "RINGED" IT AND HAD NOT GONE
THERE IN CONNECTION WITH A STATE CAPITOL DEMONSTRATION, AND IN THAT DR.
KING HAD BEEN ARRESTED ONLY FOUR TIMES.  WE HELD THAT EVIDENCE THAT
SULLIVAN AS POLICE COMMISSIONER WAS THE SUPERVISORY HEAD OF THE POLICE
DEPARTMENT WAS CONSTITUTIONALLY INSUFFICIENT TO SHOW THAT THE
STATEMENTS ABOUT POLICE ACTIVITY WERE "OF AND CONCERNING" HIM; WE
REJECTED AS INCONSISTENT WITH THE FIRST AND FOURTEENTH AMENDMENTS THE
PROPOSITION FOLLOWED BY THE ALABAMA SUPREME COURT IN THE CASE THAT "IN
MEASURING THE PERFORMANCE OR DEFICIENCIES OF  ...  GROUPS, PRAISE OR
CRITICISM IS USUALLY ATTACHED TO THE OFFICIAL IN COMPLETE CONTROL OF
THE BODY," 273 ALA. 656, 674-675, 144 SO. 2D 25, 39.   TO ALLOW THE
JURY TO CONNECT THE STATEMENTS WITH SULLIVAN ON THAT PRESUMPTION ALONE
WAS, IN OUR VIEW, TO INVITE THE SPECTRE OF PROSECUTIONS FOR LIBEL ON
GOVERNMENT, WHICH THE CONSTITUTION DOES NOT TOLERATE IN ANY FORM.  376
U.S., AT 273-276, 290-292.  (FN4)  WE HELD "THAT SUCH A PROPOSITION MAY
NOT CONSTITUTIONALLY BE UTILIZED TO ESTABLISH THAT AN OTHERWISE
IMPERSONAL ATTACK ON GOVERNMENTAL OPERATIONS WAS A LIBEL OF AN OFFICIAL
RESPONSIBLE FOR THOSE OPERATIONS."  376 U.S., AT 292.  THERE MUST BE
EVIDENCE SHOWING THAT THE ATTACK WAS READ AS SPECIFICALLY DIRECTED AT
THE PLAINTIFF. 

WERE THE STATEMENT AT ISSUE IN THIS CASE AN EXPLICIT CHARGE THAT THE
COMMISSIONERS AND BAER OR THE ENTIRE AREA MANAGEMENT WERE CORRUPT, WE
ASSUME WITHOUT DECIDING THAT ANY MEMBER OF THE IDENTIFIED GROUP MIGHT
RECOVER.  (FN5)  THE STATEMENT ITSELF MIGHT BE SUFFICIENT EVIDENCE THAT
THE ATTACK WAS SPECIFICALLY DIRECTED AT EACH INDIVIDUAL.  EVEN IF A
CHARGE AND REFERENCE WERE MERELY IMPLICIT, AS IS ALLEGED HERE, BUT A
PLAINTIFF COULD SHOW BY EXTRINSIC PROOFS THAT THE STATEMENT REFERRED TO
HIM, IT WOULD BE NO DEFENSE TO A SUIT BY ONE MEMBER OF AN IDENTIFIABLE
GROUP ENGAGED IN GOVERNMENTAL ACTIVITY THAT ANOTHER WAS ALSO ATTACKED. 
THESE SITUATIONS ARE DISTINGUISHABLE FROM THE PRESENT CASE; HERE, THE
JURY WAS PERMITTED TO INFER BOTH DEFAMATORY CONTENT AND REFERENCE FROM
THE CHALLENGED STATEMENT ITSELF, ALTHOUGH THE STATEMENT ON ITS FACE IS
ONLY AN IMPERSONAL DISCUSSION OF GOVERNMENT ACTIVITY.  TO THE EXTENT
THE TRIAL JUDGE AUTHORIZED THE JURY TO AWARD RESPONDENT A RECOVERY
WITHOUT REGARD TO EVIDENCE THAT THE ASSERTED IMPLICATION OF THE COLUMN
WAS MADE SPECIFICALLY OF AND CONCERNING HIM, WE HOLD THAT THE
INSTRUCTION WAS ERRONEOUS.  (FN6)  HERE, NO EXPLICIT CHARGE OF
PECULATION WAS MADE; NO ASSAULT ON THE PREVIOUS MANAGEMENT APPEARS. 
THE JURY WAS PERMITTED TO AWARD DAMAGES UPON A FINDING MERELY THAT
RESPONDENT WAS ONE OF A SMALL GROUP ACTING FOR AN ORGAN OF GOVERNMENT,
ONLY SOME OF WHOM WERE IMPLICATED, BUT ALL OF WHOM WERE TINGED WITH
SUSPICION.  IN EFFECT, THIS PERMITTED THE JURY TO FIND LIABILITY MERELY
ON THE BASIS OF HIS RELATIONSHIP TO THE GOVERNMENT AGENCY, THE
OPERATIONS OF WHICH WERE THE SUBJECT OF DISCUSSION.  IT IS PLAIN THAT
THE ELECTED COMMISSIONERS, ALSO MEMBERS OF THAT GROUP, WOULD HAVE BEEN
BARRED FROM SUIT ON THIS THEORY UNDER NEW YORK TIMES.  THEY WOULD BE
REQUIRED TO SHOW SPECIFIC REFERENCE.  WHETHER OR NOT RESPONDENT WAS A
PUBLIC OFFICIAL, AS A MEMBER OF THE GROUP HE BEARS THE SAME BURDEN. 
(FN7)  A THEORY THAT THE COLUMN CAST INDISCRIMINATE SUSPICION ON THE
MEMBERS OF THE GROUP RESPONSIBLE FOR THE CONDUCT OF THIS GOVERNMENTAL
OPERATION IS TANTAMOUNT TO A DEMAND FOR RECOVERY BASED ON LIBEL OF
GOVERNMENT, AND THEREFORE IS CONSTITUTIONALLY INSUFFICIENT.  SINCE THE
TRIAL JUDGE'S INSTRUCTIONS WERE ERRONEOUS IN THIS RESPECT, THE JUDGMENT
MUST BE REVERSED. 

III. 

RESPONDENT'S SECOND THEORY, SUPPORTED BY TESTIMONY OF SEVERAL
WITNESSES, WAS THAT THE COLUMN WAS READ AS REFERRING SPECIFICALLY TO
HIM, AS THE "MAN IN CHARGE" AT THE AREA, PERSONALLY RESPONSIBLE FOR ITS
FINANCIAL AFFAIRS.  EVEN ACCEPTING RESPONDENT'S READING, THE COLUMN
MANIFESTLY DISCUSSES THE CONDUCT OF OPERATIONS OF GOVERNMENT.  (FN8)
THE SUBJECT MATTER MAY HAVE BEEN ONLY OF LOCAL INTEREST, BUT AT LEAST
HERE, WHERE PUBLICATION WAS ADDRESSED PRIMARILY TO THE INTERESTED
COMMUNITY, THAT FACT IS CONSTITUTIONALLY IRRELEVANT.  THE QUESTION IS
SQUARELY PRESENTED WHETHER THE "PUBLIC OFFICIAL" DESIGNATION UNDER NEW
YORK TIMES APPLIES. 

IF IT DOES, IT IS CLEAR THAT THE JURY INSTRUCTIONS WERE IMPROPER. 
UNDER THE INSTRUCTIONS, THE JURY WAS PERMITTED TO FIND THAT NEGLIGENT
MISSTATEMENT OF FACT WOULD DEFEAT PETITIONER'S PRIVILEGE.  THAT TEST
WAS REJECTED IN GARRISON, 379 U.S., AT 79, WHERE WE SAID, "THE TEST
WHICH WE LAID DOWN IN NEW YORK TIMES IS NOT KEYED TO ORDINARY CARE;
DEFEASANCE OF THE PRIVILEGE IS CONDITIONED, NOT ON MERE NEGLIGENCE, BUT
ON RECKLESS DISREGARD FOR THE TRUTH."  THE TRIAL COURT ALSO CHARGED
THAT "DEFAMATORY MATTER WHICH CONSTITUTES COMMENT RATHER THAN FACT IS
JUSTIFIED IF MADE WITHOUT MALICE AND REPRESENTED FAIR COMMENT ON
MATTERS OF PUBLIC INTEREST," AND DEFINED MALICE TO INCLUDE "ILL WILL,
EVIL MOTIVE, INTENTION TO INJURE  ...  ."  THIS DEFINITION OF MALICE IS
CONSTITUTIONALLY INSUFFICIENT WHERE DISCUSSION OF PUBLIC AFFAIRS IS
CONCERNED; "WE HELD IN NEW YORK TIMES THAT A PUBLIC OFFICIAL MIGHT BE
ALLOWED THE CIVIL REMEDY ONLY IF HE ESTABLISHES THAT THE UTTERANCE WAS
FALSE AND THAT IT WAS MADE WITH KNOWLEDGE OF ITS FALSITY OR IN RECKLESS
DISREGARD OF WHETHER IT WAS FALSE OR TRUE."  GARRISON, 379 U.S., AT
74. 

TURNING, THEN, TO THE QUESTION WHETHER RESPONDENT WAS A "PUBLIC
OFFICIAL" WITHIN NEW YORK TIMES, WE REJECT AT THE OUTSET HIS SUGGESTION
THAT IT SHOULD BE ANSWERED BY REFERENCE TO STATE-LAW STANDARDS.  STATES
HAVE DEVELOPED DEFINITIONS OF "PUBLIC OFFICIAL" FOR LOCAL
ADMINISTRATIVE PURPOSES, NOT THE PURPOSES OF A NATIONAL CONSTITUTIONAL
PROTECTION.  (FN9)  IF EXISTING STATE-LAW STANDARDS REFLECT THE
PURPOSES OF NEW YORK TIMES, THIS IS AT BEST ACCIDENTAL.  OUR DECISION
IN NEW YORK TIMES, MOREOVER, DRAWS ITS FORCE FROM THE CONSTITUTIONAL
PROTECTIONS AFFORDED FREE EXPRESSION.  THE STANDARDS THAT SET THE SCOPE
OF ITS PRINCIPLES CANNOT THEREFORE BE SUCH THAT "THE CONSTITUTIONAL
LIMITS OF FREE EXPRESSION IN THE NATION WOULD VARY WITH STATE LINES." 
PENNEKAMP V. FLORIDA, 328 U.S. 331, 335.  (FN10) 

WE REMARKED IN NEW YORK TIMES THAT WE HAD NO OCCASION "TO DETERMINE
HOW FAR DOWN INTO THE LOWER RANKS OF GOVERNMENT EMPLOYEES THE 'PUBLIC
OFFICIAL' DESIGNATION WOULD EXTEND FOR PURPOSES OF THIS RULE, OR
OTHERWISE TO SPECIFY CATEGORIES OF PERSONS WHO WOULD OR WOULD NOT BE
INCLUDED."  376 U.S., AT 283, N. 23.  NO PRECISE LINES NEED BE DRAWN
FOR THE PURPOSES OF THIS CASE.  THE MOTIVATING FORCE FOR THE DECISION
IN NEW YORK TIMES WAS TWOFOLD.  WE EXPRESSED "A PROFOUND NATIONAL
COMMITMENT TO THE PRINCIPLE THAT DEBATE ON PUBLIC ISSUES SHOULD BE
UNINHIBITED, ROBUST, AND WIDE-OPEN, AND THAT SUCH DEBATE MAY WELL
INCLUDE VEHEMENT, CAUSTIC, AND SOMETIMES UNPLEASANTLY SHARP ATTACKS ON
GOVERNMENT AND PUBLIC OFFICIALS."  376 U.S., AT 270.  THERE IS, FIRST,
A STRONG INTEREST IN DEBATE ON PUBLIC ISSUES, AND SECOND, A STRONG
INTEREST IN DEBATE ABOUT THOSE PERSONS WHO ARE IN A POSITION
SIGNIFICANTLY TO INFLUENCE THE RESOLUTION OF THOSE ISSUES.  CRITICISM
OF GOVERNMENT IS AT THE VERY CENTER OF THE CONSTITUTIONALLY PROTECTED
AREA OF FREE DISCUSSION.  CRITICISM OF THOSE RESPONSIBLE FOR GOVERNMENT
OPERATIONS MUST BE FREE, LEST CRITICISM OF GOVERNMENT ITSELF BE
PENALIZED.  IT IS CLEAR, THEREFORE, THAT THE "PUBLIC OFFICIAL"
DESIGNATION APPLIES AT THE VERY LEAST TO THOSE AMONG THE HIERARCHY OF
GOVERNMENT EMPLOYEES WHO HAVE, OR APPEAR TO THE PUBLIC TO HAVE,
SUBSTANTIAL RESPONSIBILITY FOR OR CONTROL OVER THE CONDUCT OF
GOVERNMENTAL AFFAIRS.  (FN11) 

THIS CONCLUSION DOES NOT IGNORE THE IMPORTANT SOCIAL VALUES WHICH
UNDERLIE THE LAW OF DEFAMATION.  SOCIETY HAS A PERVASIVE AND STRONG
INTEREST IN PREVENTING AND REDRESSING ATTACKS UPON REPUTATION.  BUT IN
CASES LIKE THE PRESENT, THERE IS TENSION BETWEEN THIS INTEREST AND THE
VALUES NURTURED BY THE FIRST AND FOURTEENTH AMENDMENTS.  THE THRUST OF
NEW YORK TIMES IS THAT WHEN INTERESTS IN PUBLIC DISCUSSION ARE
PARTICULARLY STRONG, AS THEY WERE IN THAT CASE, THE CONSTITUTION LIMITS
THE PROTECTIONS AFFORDED BY THE LAW OF DEFAMATION.  WHERE A POSITION IN
GOVERNMENT HAS SUCH APPARENT IMPORTANCE THAT THE PUBLIC HAS AN
INDEPENDENT INTEREST IN THE QUALIFICATIONS AND PERFORMANCE OF THE
PERSON WHO HOLDS IT, BEYOND THE GENERAL PUBLIC INTEREST IN THE
QUALIFICATIONS AND PERFORMANCE OF ALL GOVERNMENT EMPLOYEES, BOTH
ELEMENTS WE IDENTIFIED IN NEW YORK TIMES ARE PRESENT  (FN12) AND THE
NEW YORK TIMES MALICE STANDARDS APPLY.  (FN13) 

AS RESPONDENT FRAMED HIS CASE, HE MAY HAVE HELD SUCH A POSITION. 
SINCE NEW YORK TIMES HAD NOT BEEN DECIDED WHEN HIS CASE WENT TO TRIAL,
HIS PRESENTATION WAS NOT SHAPED TO THE "PUBLIC OFFICIAL" ISSUE.  HE
DID, HOWEVER, SEEK TO SHOW THAT THE ARTICLE REFERRED PARTICULARLY TO
HIM.  HIS THEORY WAS THAT HIS ROLE IN THE MANAGEMENT OF THE AREA WAS SO
PROMINENT AND IMPORTANT THAT THE PUBLIC REGARDED HIM AS THE MAN
RESPONSIBLE FOR ITS OPERATIONS, CHARGEABLE WITH ITS FAILURES AND TO BE
CREDITED WITH ITS SUCCESSES.  THUS, TO PROVE THE ARTICLE A SUBSTANTIAL
ARGUMENT THAT HE WAS A "PUBLIC OFFICIAL."  (FN14) 

THE RECORD HERE, HOWEVER, LEAVES OPEN THE POSSIBILITY THAT RESPONDENT
COULD HAVE ADDUCED PROOFS TO BRING HIS CLAIM OUTSIDE THE NEW YORK TIMES
RULE.  MOREOVER, EVEN IF THE CLAIM FALLS WITHIN NEW YORK TIMES, THE
RECORD SUGGESTS RESPONDENT MAY BE ABLE TO PRESENT A JURY QUESTION OF
MALICE AS THERE DEFINED.  BECAUSE THE TRIAL HERE WAS HAD BEFORE NEW
YORK TIMES, WE HAVE CONCLUDED THAT WE SHOULD NOT FORECLOSE HIM FROM
ATTEMPTING RETRIAL OF HIS ACTION.  WE REMARK ONLY THAT, AS IS THE CASE
WITH QUESTIONS OF PRIVILEGE GENERALLY, IT IS FOR THE TRIAL JUDGE IN THE
FIRST INSTANCE TO DETERMINE WHETHER THE PROOFS SHOW RESPONDENT TO BE A
"PUBLIC OFFICIAL."  (FN15) 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED TO THE NEW HAMPSHIRE
SUPREME COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  N.H. LAWS 1959, C. 399. 

FN2  THE ARTICLE PURPORTS TO COMPARE PERFORMANCE OF THE SKI AREA
UNDER THE DIRECTION OF UNNAMED PERSONS DURING THE PRIOR YEAR WITH
PERFORMANCE OF THE AREA UNDER THE DIRECTION OF AN IDENTIFIED GROUP - A
GROUP WHICH INCLUDES NOT ONLY THE NEW MANAGER OF THE AREA, BUT THE NEW
COMMISSIONERS AS WELL. 

FN3  SEE GENERALLY LEWIS, THE INDIVIDUAL MEMBER'S RIGHT TO RECOVER
FOR A DEFAMATION LEVELED AT THE GROUP, 17 U. MIAMI L. REV. 519, 523-525
(1963). 

FN4  SEE KALVEN, THE NEW YORK TIMES CASE:  A NOTE ON "THE CENTRAL
MEANING OF THE FIRST AMENDMENT," 1964 SUP. CT. REV. 191, 207-210. 

FN5  SUCH RECOVERY WOULD, OF COURSE, BE SUBJECT TO A SHOWING OF
ACTUAL MALICE IF THE INDIVIDUAL WERE A "PUBLIC OFFICIAL" WITHIN THE
MEANING OF THE NEW YORK TIMES. 

FN6  IT MIGHT BE ARGUED THAT THE CHARGE INSTRUCTED THE JURY TO AWARD
RECOVERY ONLY IF IT FOUND THAT THE LIBEL WAS AIMED AT MR. BAER OR IF IT
FOUND THE LIBEL AIMED AT MR. BAER, ALONG WITH A FEW OTHERS.  SUCH A
CHARGE MIGHT NOT BE OBJECTIONABLE; WE DO NOT MEAN TO SUGGEST THAT THE
FACT THAT MORE THAN ONE PERSON IS LIBELED BY A STATEMENT IS A DEFENSE
TO SUIT BY A MEMBER OF THE GROUP.  HOWEVER, WE CANNOT READ THE CHARGE
AS BEING SO LIMITED.  THE JURY WAS TOLD: 

"AN IMPUTATION OF IMPROPRIETY OR A CRIME TO ONE OR SOME OF A SMALL
GROUP THAT CASTS SUSPICION UPON ALL IS ACTIONABLE.  IT IS SUFFICIENT IF
MR. BAER  ...  PROVES  ...  THAT HE WAS ONE OF A GROUP UPON WHOM
SUSPICION WAS CAST  ...  ; BUT MR. BAER HAS THE BURDEN OF SHOWING THAT
THE DEFAMATION, IF YOU FIND THAT THERE WAS ONE, EITHER WAS DIRECTED TO
HIM OR COULD HAVE BEEN AS ONE OF A SMALL GROUP." 

THE LATITUDE ALLOWED THE JURY TO FIND DEFAMATORY REFERENCE IN THIS
APPARENTLY IMPERSONAL DISCUSSION OF GOVERNMENT AFFAIRS WAS THUS TOO
BROAD. 

FN7  SEE GILBERG V. GOFFI, 21 APP. DIV. 2D 517, 251 N.Y.S.2D 823
(1964), AFF'D, 15 N.Y.2D 1023, 207 N.E.2D 620 (1965); COMMENT, 114 U.
PA. L. REV. 241 (1965). 

FN8  THE NEW HAMPSHIRE COURT FULLY RECOGNIZED THAT THIS WAS THE
SUBJECT OF THE COLUMN.  IT INSTRUCTED THE JURY: 

"YOU ARE ENTITLED, I THINK, TO FIND THAT THE PUBLIC HAD A RIGHT TO BE
INFORMED ABOUT ANY DIFFICULTIES OR DISCREPANCIES IN INCOME OR THIEVERY
AT THIS PUBLIC AREA.  IT'S IN THE PUBLIC DOMAIN.   IT'S PUBLIC PROPERTY
...  .  KEEP IN MIND THAT THE PUBLIC HAS A RIGHT TO KNOW HOW THEIR
PUBLIC AFFAIRS ARE BEING CONDUCTED  ...  ." 

FN9  SEE, E.G., OPINION OF THE JUSTICES, 73 N.H. 621, 62 A. 969
(1906). 

FN10  FOR SIMILAR REASONS, WE REJECT ANY SUGGESTION THAT OUR
REFERENCES IN NEW YORK TIMES, 376 U.S., AT 282, 283, N. 23, AND
GARRISON, 379 U.S., AT 74, TO BARR V. MATTEO, 360 U.S. 564, MEAN THAT
WE HAVE TIED THE NEW YORK TIMES RULE TO THE RULE OF OFFICIAL
PRIVILEGE.  THE PUBLIC INTERESTS PROTECTED BY THE NEW YORK TIMES RULE
ARE INTERESTS IN DISCUSSION, NOT RETALIATION, AND OUR REFERENCE TO BARR
SHOULD BE TAKEN TO MEAN NO MORE THAN THAT THE SCOPE OF THE PRIVILEGE IS
TO BE DETERMINED BY REFERENCE TO THE FUNCTIONS IT SERVES.  SEE PEDRICK,
FREEDOM OF THE PRESS AND THE LAW OF LIBEL:  THE MODERN REVISED
TRANSLATION, 49 CORNELL L.Q.  581, 590-591 (1964). 

FN11  COMPARE, E.G., CLANCY V. DAILY NEWS CORP., 202 MINN. 1, 277
N.W. 264 (1938); TANZER V. CROWLEY PUBLISHING CORP., 240 APP. DIV. 203,
268 N.Y. SUPP. 620 (1934); POLESKI V. POLISH AM. PUBLISHING CO., 254
MICH. 15, 235 N.W. 841 (1931); 1 HARPER & JAMES, TORTS SEC.  5.26, PP.
449-450 (1956); PROSSER, TORTS SEC. 110, P. 815 (3D ED. 1964); NOEL,
DEFAMATION OF PUBLIC OFFICERS AND CANDIDATES, 49 COL. L. REV. 875, 896
897, 901-902 (1949); COMMENT, 113 U. PA. L. REV. 284, 288 (1964); NOTE,
18 VAND.  L. REV. 1429, 1445 (1965). 

FN12  WE ARE TREATING HERE ONLY THE ELEMENT OF PUBLIC POSITION, SINCE
THAT IS ALL THAT HAS BEEN ARGUED AND BRIEFED.  WE INTIMATE NO VIEW
WHATEVER WHETHER THERE ARE OTHER BASES FOR APPLYING THE NEW YORK TIMES
STANDARDS - FOR EXAMPLE, THAT IN A PARTICULAR CASE THE INTERESTS IN
REPUTATION ARE RELATIVELY INSUBSTANTIAL, BECAUSE THE SUBJECT OF
DISCUSSION HAS THRUST HIMSELF INTO THE VORTEX OF THE DISCUSSION OF A
QUESTION OF PRESSING PUBLIC CONCERN.  CF. SALINGER V. COWLES, 195 IOWA
873, 889, 191 N.W. 167, 173-174 (1922); PECK V. COOS BAY TIMES
PUBLISHING CO., 122 ORE.  408, 420-421, 259 P. 307, 311-312 (1927);
COLEMAN V. MACLENNAN, 78 KAN. 711, 723-724, 98 P. 281, 285-286 (1908);
PAULING V. NEWS SYNDICATE CO., 335 F.2D 659, 671 (C.A.2D CIR. 1964). 

FN13  IT IS SUGGESTED THAT THIS TEST MIGHT APPLY TO A NIGHT WATCHMAN
ACCUSED OF STEALING STATE SECRETS.  BUT A CONCLUSION THAT THE NEW YORK
TIMES MALICE STANDARDS APPLY COULD NOT BE REACHED MERELY BECAUSE A
STATEMENT DEFAMATORY OF SOME PERSON IN GOVERNMENT EMPLOY CATCHES THE
PUBLIC'S INTEREST; THAT CONCLUSION WOULD VIRTUALLY DISREGARD SOCIETY'S
INTEREST IN PROTECTING REPUTATION.  THE EMPLOYEE'S POSITION MUST BE ONE
WHICH WOULD INVITE PUBLIC SCRUTINY AND DISCUSSION OF THE PERSON HOLDING
IT, ENTIRELY APART FROM THE SCRUTINY AND DISCUSSION OCCASIONED BY THE
PARTICULAR CHARGES IN CONTROVERSY. 

FN14  IT IS NOT SERIOUSLY CONTENDED, AND COULD NOT BE, THAT THE FACT
RESPONDENT NO LONGER SUPERVISED THE AREA WHEN THE COLUMN APPEARED HAS
DECISIONAL SIGNIFICANCE HERE.  TO BE SURE, THERE MAY BE CASES WHERE A
PERSON IS SO FAR REMOVED FROM A FORMER POSITION OF AUTHORITY THAT
COMMENT ON THE MANNER IN WHICH HE PERFORMED HIS RESPONSIBILITIES NO
LONGER HAS THE INTEREST NECESSARY TO JUSTIFY THE NEW YORK TIMES RULE. 
BUT HERE THE MANAGEMENT OF THE AREA WAS STILL A MATTER OF LIVELY PUBLIC
INTEREST; PROPOSITIONS FOR FURTHER CHANGE WERE ABROAD, AND PUBLIC
INTEREST IN THE WAY IN WHICH THE PRIOR ADMINISTRATION HAD DONE ITS TASK
CONTINUED STRONG.  THE COMMENT, IF IT REFERRED TO RESPONDENT, REFERRED
TO HIS PERFORMANCE OF DUTY AS A COUNTY EMPLOYEE. 

FN15  1 HARPER & JAMES, TORTS SEC. 5.29 (1956); PROSSER, TORTS SEC.
110, P. 823 (3D ED.  1964), RESTATEMENT, TORTS SEC. 619.  SUCH A COURSE
WILL BOTH LESSEN THE POSSIBILITY THAT A JURY WILL USE THE CLOAK OF A
GENERAL VERDICT TO PUNISH UNPOPULAR IDEAS OR SPEAKERS, AND ASSURE AN
APPELLATE COURT THE RECORD AND FINDINGS REQUIRED FOR REVIEW OF
CONSTITUTIONAL DECISIONS.  CF. SPEISER V. RANDALL, 357 U.S. 513, 525;
NEW YORK TIMES, 376 U.S., AT 285. 

MR. JUSTICE CLARK CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, WE DEALT WITH
ELECTED OFFICIALS.  (FN1)  WE NOW HAVE THE QUESTION AS TO HOW FAR ITS
PRINCIPLES EXTEND OR HOW FAR DOWN THE HIERARCHY WE SHOULD GO. 

THE PROBLEMS PRESENTED ARE CONSIDERABLE ONES.  MAYBE THE KEY MAN IN A
HIERARCHY IS THE NIGHT WATCHMAN RESPONSIBLE FOR THEFTS OF STATE
SECRETS.  THOSE OF US ALIVE IN THE 1940'S AND 1950'S WITNESSED THE
DREADFUL ORDEAL OF PEOPLE IN THE PUBLIC SERVICE BEING PUMMELLED BY
THOSE INSIDE AND OUTSIDE GOVERNMENT, WITH CHARGES THAT WERE FALSE,
ABUSIVE, AND DAMAGING TO THE EXTREME.  MANY OF THEM, UNLIKE THE
OFFICIALS IN NEW YORK TIMES WHO RAN FOR ELECTION, RARELY HAD
OPPORTUNITY FOR REJOINDER. 

YET IF FREE DISCUSSION OF PUBLIC ISSUES IS THE GUIDE, I SEE NO WAY TO
DRAW LINES THAT EXCLUDE THE NIGHT WATCHMAN, THE FILE CLERK, THE TYPIST,
OR, FOR THAT MATTER, ANYONE ON THE PUBLIC PAYROLL.  AND HOW ABOUT THOSE
WHO CONTRACT TO CARRY OUT GOVERNMENTAL MISSIONS?  SOME OF THEM ARE AS
MUCH IN THE PUBLIC DOMAIN AS ANY SO-CALLED OFFICEHOLDER.  AND HOW ABOUT
THE DOLLAR-A-YEAR MAN, WHOSE PROTOTYPE WAS PUBLICIZED IN UNITED STATES
V. MISSISSIPPI VALLEY GENERATING CO., 364 U.S. 520?  (FN2)  AND THE
INDUSTRIALISTS WHO RAISE THE PRICE OF A BASIC COMMODITY?  ARE NOT STEEL
AND ALUMINUM IN THE PUBLIC DOMAIN?  AND THE LABOR LEADER WHO COMBINES
TRADE UNIONISM WITH BRIBERY AND RACKETEERING?  SURELY THE PUBLIC
IMPORTANCE OF COLLECTIVE BARGAINING PUTS LABOR AS WELL AS MANAGEMENT
INTO THE PUBLIC ARENA SO FAR AS THE PRESENT CONSTITUTIONAL ISSUE IS
CONCERNED.  (FN3) 

THE COURT IN THORNHILL V. ALABAMA, 310 U.S. 88, 101-102, PUT THE
ISSUE AS FOLLOWS: 

"THE FREEDOM OF SPEECH AND OF THE PRESS GUARANTEED BY THE
CONSTITUTION EMBRACES AT THE LEAST THE LIBERTY TO DISCUSS PUBLICLY AND
TRUTHFULLY ALL MATTERS OF PUBLIC CONCERN WITHOUT PREVIOUS RESTRAINT OR
FEAR OF SUBSEQUENT PUNISHMENT.  THE EXIGENCIES OF THE COLONIAL PERIOD
AND THE EFFORTS TO SECURE FREEDOM FROM OPPRESSIVE ADMINISTRATION
DEVELOPED A BROADENED CONCEPTION OF THESE LIBERTIES AS ADEQUATE TO
SUPPLY THE PUBLIC NEED FOR INFORMATION AND EDUCATION WITH RESPECT TO
THE SIGNIFICANT ISSUES OF THE TIMES  ...  .  FREEDOM OF DISCUSSION, IF
IT WOULD FULFILL ITS HISTORIC FUNCTION IN THIS NATION, MUST EMBRACE ALL
ISSUES ABOUT WHICH INFORMATION IS NEEDED OR APPROPRIATE TO ENABLE THE
MEMBERS OF SOCIETY TO COPE WITH THE EXIGENCIES OF THEIR PERIOD." 

IF THE TERM "PUBLIC OFFICIAL" WERE A CONSTITUTIONAL TERM, WE WOULD BE
STUCK WITH IT AND HAVE TO GIVE IT CONTENT.  BUT THE TERM IS OUR OWN;
AND SO LONG AS WE ARE FASHIONING A RULE OF FREE DISCUSSION OF PUBLIC
ISSUES, I CANNOT RELATE IT ONLY TO THOSE WHO, BY THE COURT'S STANDARD,
ARE DEEMED TO HOLD PUBLIC OFFICE. 

THE QUESTION IN FINAL ANALYSIS IS THE EXTENT TO WHICH THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT HAS DISPLACED THE LIBEL LAWS OF THE
STATES.  I DO NOT SUPPOSE ANYONE WOULD HAVE THOUGHT IN THOSE TERMS AT
THE TIME THE AMENDMENT WAS ADOPTED.  BUT CONSTITUTIONAL LAW IS NOT
FROZEN AS OF A PARTICULAR MOMENT OF TIME.  IT WAS INDEED NOT UNTIL 1931
THAT THIS COURT SQUARELY HELD THAT THE FIRST AMENDMENT WAS APPLICABLE
TO THE STATES BY REASON OF THE FOURTEENTH (STROMBERG V. CALIFORNIA, 283
U.S. 359, 368-369) - NEW YORK TIMES BEING MERELY AN APPLICATION AND
EXTENSION OF THAT PRINCIPLE.   BUT SINCE FREEDOM OF SPEECH IS NOW THE
GUIDELINE, DO STATE LIBEL LAWS HAVE ANY PLACE AT ALL IN OUR
CONSTITUTIONAL SYSTEM, AT LEAST WHEN IT COMES TO PUBLIC ISSUES?  IF
FREEDOM OF SPEECH IS THE GUIDE, WHY IS IT RESTRICTED TO SPEECH
ADDRESSED TO THE LARGER PUBLIC MATTERS AND NOT APPLICABLE TO SPEECH AT
THE LOWER LEVELS OF SCIENCE, THE HUMANITIES, THE PROFESSIONS,
AGRICULTURE, AND THE LIKE? 

IN MY VIEW THE FIRST AMENDMENT WOULD BAR CONGRESS FROM PASSING ANY
LIBEL LAW, THE ALIEN AND SEDITION ACT (1 STAT. 596) TO THE CONTRARY
NOTWITHSTANDING.  SOME THINK THAT DUE PROCESS AS APPLIED TO THE STATES
IS A WATERED-DOWN FEDERAL VERSION AS RESPECTS THE GUARANTEES IN THE
BILL OF RIGHTS THAT ARE INCORPORATED INTO THE FOURTEENTH AMENDMENT. 
SEE, E.G., ROTH V. UNITED STATES, 354 U.S. 476, 501 (SEPARATE OPINION);
BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 287 (DISSENTING OPINION).  THAT
HAS BEEN THE MINORITY VIEW, THE MAJORITY MAINTAINING THAT THERE IS NO
DIFFERENCE.  IF THERE IS NO DIFFERENCE AND IF I AM RIGHT IN ASSUMING
CONGRESS COULD NOT CONSTITUTIONALLY PASS A LIBEL LAW, THEN THE QUESTION
IS WHETHER A PUBLIC ISSUE, NOT A PUBLIC OFFICIAL, IS INVOLVED.  (FN4) 
THE CASE IS THEREFORE FOR ME IN A DIFFERENT POSTURE THAN THE ONE
DISCUSSED BY THE COURT.  I WOULD PREFER TO DISMISS THE WRIT AS
IMPROVIDENTLY GRANTED.  (FN5)  TO FACILITATE OUR WORK,  (FN6) HOWEVER,
I HAVE DECIDED TO JOIN PART II OF THE COURT'S OPINION, AS WELL AS MR.
JUSTICE BLACK'S SEPARATE OPINION, AND TO CONCUR IN THE JUDGMENT.    FN1
AND CF. FARMERS UNION V. WDAY, 360 U.S. 525, HOLDING THAT A RADIO
STATION IS NOT LIABLE FOR DEFAMATORY STATEMENTS MADE IN A SPEECH
BROADCAST OVER SUCH STATION UNDER SEC.  315(A) OF THE FEDERAL
COMMUNICATIONS ACT OF 1934 BY A CANDIDATE FOR PUBLIC OFFICE. 

FN2  HE IN FACT RECEIVED NO COMPENSATION FROM THE GOVERNMENT, BUT WAS
GIVEN $10 PER DAY IN LIEU OF SUBSISTENCE, PLUS TRANSPORTATION
EXPENSES.  SEE 364 U.S., AT 533. 

FN3  CF. LINN V. UNITED PLANT GUARD WORKERS, ANTE, P. 53, WHERE THE
PRINCIPLE OF NEW YORK TIMES CO. V. SULLIVAN, SUPRA, IS EXTENDED, VIA
THE PATH OF PRE-EMPTION, TO THE FIELD OF LABOR RELATIONS. 

FN4  THERE IS A VIEW THAT THE "MOST ABSOLUTE CONSTRUCTION OF THE
FIRST AMENDMENT, AS APPLIED TO THE STATES BY THE FOURTEENTH, WOULD
PERMIT A LINE TO BE DRAWN BETWEEN THE SPURIOUS COMMON LAW OF SEDITIOUS
LIBEL AND THE GENUINE COMMON LAW OF CIVIL LIABILITY FOR DEFAMATION OF
PRIVATE CHARACTER."  BRANT, THE BILL OF RIGHTS:  ITS ORIGIN AND MEANING
502-503 (1965).  BUT THAT IPSE DIXIT OVERLOOKS OUR DECISIONS WHICH,
WITHOUT DEFINING THE OUTER LIMITS, ESTABLISH THAT THE FIRST AMENDMENT
APPLIES TO BOTH.  COMPARE NEW YORK TIMES CO. V. SULLIVAN, SUPRA, WITH
GARRISON V. LOUISIANA, 379 U.S. 64. 

FN5  THE COMPLAINT WAS DRAWN AND THE TRIAL CONDUCTED IN CONFORMITY
WITH THE DEFAMATION LAW AS IT EXISTED PRIOR TO NEW YORK TIMES.  WHETHER
THE COMPLAINT CAN BE AMENDED TO CONFORM TO THE THEORY OF LIABILITY
ANNOUNCED IN NEW YORK TIMES IS WHOLLY A MATTER OF STATE LAW.  SEE N.H.
REV. STAT. ANN. SEC. 514:9 (1955).  WHETHER THERE CAN BE A NEW TRIAL IS
ALSO WHOLLY A MATTER OF STATE LAW.  SEE N.H. REV. STAT. ANN. SEC. 526:1
(1955).  WHETHER RESPONDENT IS A "PUBLIC OFFICIAL" IN THE NEW YORK
TIMES SENSE IS NOT ASCERTAINABLE FROM THE RECORD.  WE DO NOT EVEN KNOW
WHETHER HE TOOK AN OATH OF OFFICE.  SO FAR AS WE KNOW, HE MAY HAVE BEEN
A HYBRID IN THE NATURE OF AN INDEPENDENT CONTRACTOR.  MOREOVER, THE
ORAL ARGUMENT AND THE BRIEFS WERE NOT SQUARELY ADDRESSED TO THE LARGER
AND PROFOUNDLY IMPORTANT QUESTIONS STIRRED BY THIS LITIGATION. 

FN6  CF. MR. JUSTICE RUTLEDGE IN SCREWS V. UNITED STATES, 325 U.S.
91, 113, 134. 

MR. JUSTICE STEWART, CONCURRING. 

THE CONSTITUTION DOES NOT TOLERATE ACTIONS FOR LIBEL ON GOVERNMENT. 
STATE DEFAMATION LAWS, THEREFORE, WHETHER CIVIL OR CRIMINAL, CANNOT
CONSTITUTIONALLY BE CONVERTED INTO LAWS AGAINST SEDITIOUS LIBEL.  OUR
DECISIONS IN THE NEW YORK TIMES AND GARRISON CASES TURNED UPON THAT
FUNDAMENTAL PROPOSITION.  (FN1)  WHAT THE COURT SAYS TODAY SEEMS TO ME
FULLY CONSONANT WITH THOSE DECISIONS, AND I JOIN THE COURT'S OPINION
AND JUDGMENT. 

IT IS A FALLACY, HOWEVER, TO ASSUME THAT THE FIRST AMENDMENT IS THE
ONLY GUIDEPOST IN THE AREA OF STATE DEFAMATION LAWS.  IT IS NOT.  AS
THE COURT SAYS, "IMPORTANT SOCIAL VALUES  ...  UNDERLIE THE LAW OF
DEFAMATION.  SOCIETY HAS A PERVASIVE AND STRONG INTEREST IN PREVENTING
AND REDRESSING ATTACKS UPON REPUTATION." 

THE RIGHT OF A MAN TO THE PROTECTION OF HIS OWN REPUTATION FROM
UNJUSTIFIED INVASION AND WRONGFUL HURT REFLECTS NO MORE THAN OUR BASIC
CONCEPT OF THE ESSENTIAL DIGNITY AND WORTH OF EVERY HUMAN BEING - A
CONCEPT AT THE ROOT OF ANY DECENT SYSTEM OF ORDERED LIBERTY.  THE
PROTECTION OF PRIVATE PERSONALITY, LIKE THE PROTECTION OF LIFE ITSELF,
IS LEFT PRIMARILY TO THE INDIVIDUAL STATES UNDER THE NINTH AND TENTH
AMENDMENTS.  BUT THIS DOES NOT MEAN THAT THE RIGHT IS ENTITLED TO ANY
LESS RECOGNITION BY THIS COURT AS A BASIC OF OUR CONSTITUTIONAL
SYSTEM. 

WE USE MISLEADING EUPHEMISMS WHEN WE SPEAK OF THE NEW YORK TIMES RULE
AS INVOLVING "UNINHIBITED, ROBUST, AND WIDE-OPEN" DEBATE, OR "VEHEMENT,
CAUSTIC, AND SOEMTIMES UNPLEASANTLY SHARP" CRITICISM.  (FN2)  WHAT THE
NEW YORK TIMES RULE ULTIMATELY PROTECTS IS DEFAMATORY FALSEHOOD.  NO
MATTER HOW GROSS THE UNTRUTH, THE NEW YORK TIMES RULE DEPRIVES A
DEFAMED PUBLIC OFFICIAL OF ANY HOPE FOR LEGAL REDRESS WITHOUT PROOF
THAT THE LIE WAS A KNOWING ONE, OR UTTERED IN RECKLESS DISREGARD OF THE
TRUTH. 

THAT RULE SHOULD NOT BE APPLIED EXCEPT WHERE A STATE'S LAW OF
DEFAMATION HAS BEEN UNCONSTITUTIONALLY CONVERTED INTO A LAW OF
SEDITIOUS LIBEL.  (FN3)  THE FIRST AND FOURTEENTH AMENDMENTS HAVE NOT
STRIPPED PRIVATE CITIZENS OF ALL MEANS OF REDRESS FOR INJURIES
INFLICTED UPON THEM BY CARELESS LIARS.  (FN4)  THE DESTRUCTION THAT
DEFAMATORY FALSEHOOD CAN BRING IS, TO BE SURE, OFTEN BEYOND THE
CAPACITY OF THE LAW TO REDEEM.  YET, IMPERFECT THOUGH IT IS, AN ACTION
FOR DAMAGES IS THE ONLY HOPE FOR VINDICATION OR REDRESS THE LAW GIVES
TO A MAN WHOSE REPUTATION HAS BEEN FALSELY DISHONORED. 

MOREOVER, THE PREVENTIVE EFFECT OF LIABILITY FOR DEFAMATION SERVES AN
IMPORTANT PUBLIC PURPOSE.  FOR THE RIGHTS AND VALUES OF PRIVATE
PERSONALITY FAR TRANSCEND MERE PERSONAL INTERESTS.  SURELY IF THE
1950'S TAUGHT US ANYTHING, THEY TAUGHT US THAT THE POISONOUS ATMOSPHERE
OF THE EASY LIE CAN INFECT AND DEGRADE A WHOLE SOCIETY. 

FN1  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254; GARRISON V.
LOUISIANA, 379 U.S. 64. 

FN2  SEE NEW YORK TIMES CO. V. SULLIVAN, 376 U.S., AT 270. 

FN3  THIS IS NOT TO SAY THAT THERE DO NOT EXIST SITUATIONS WHERE FOR
OTHER REASONS STATE DEFAMATION LAWS MAY BE SIMILARLY LIMITED.  SEE LINN
V. UNITED PLANT GUARD WORKERS, ANTE, P. 53. 

FN4  IRVING BRANT HAS RECENTLY MADE THE POINT WELL: 

"CIVIL ACTIONS FOR SLANDER AND LIBEL DEVELOPED IN EARLY AGES AS A
SUBSTITUTE FOR THE DUEL AND A DETERRENT TO MURDER.  THEY LIE WITHIN THE
GENUINE ORBIT OF THE COMMON LAW, AND IN THE DISTRIBUTION OF AMERICAN
SOVEREIGNTY THEY FALL EXCLUSIVELY WITHIN THE JURISDICTION OF THE
STATES.  THE FIRST AMENDMENT FURTHER ASSURES THEIR EXCLUSION FROM THE
FEDERAL DOMAIN.  THE FOURTEENTH AMENDMENT, BY ABSORBING THE FIRST,
UNQUESTIONABLY GIVES THE SUPREME COURT AUTHORITY TO BLOCK STATE USE OF
CIVIL SUITS AS A SUBSTITUTE FOR LAWS OF SEDITIOUS LIBEL.  BUT
CONSIDERING THE DIFFERENCES IN DERIVATION, IN PURPOSE, IN VALUE TO
SOCIETY, AND IN THE NATURAL LOCATION OF POWER, THERE SEEMS TO BE NO
COMPELLING CONSTITUTIONAL REASON TO BAR PRIVATE SUITS.  THE MOST
ABSOLUTE CONSTRUCTION OF THE FIRST AMENDMENT, AS APPLIED TO THE STATES
BY THE FOURTEENTH, WOULD PERMIT A LINE TO BE DRAWN BETWEEN THE SPURIOUS
COMMON LAW OF SEDITIOUS LIBEL AND THE GENUINE COMMON LAW OF CIVIL
LIABILITY FOR DEFAMATION OF PRIVATE CHARACTER.  IT IS THE MISUSE OF
CIVIL LIABILITY THAT OFFENDS THE CONSTITUTION."  BRANT, THE BILL OF
RIGHTS:  ITS ORIGIN AND MEANING 502-503 (1965). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING
AND DISSENTING. 

RESPONDENT BAER MANAGED THE FINANCIAL AFFAIRS OF A SKI RECREATION
CENTER OWNED AND OPERATED BY BELKNAP COUNTY, NEW HAMPSHIRE.  PETITIONER
ROSENBLATT, AN UNPAID COLUMNIST FOR A LOCAL NEWSPAPER, PUBLISHED A
COLUMN CRITICIZING THE PAST MANAGEMENT OF THE CENTER.  BAER THOUGHT THE
COLUMN IMPLIED DISHONEST MANIPULATIONS IN HIS HANDLING OF THE FINANCES
FOR THE CENTER.  CHARGING THIS HE SUED ROSENBLATT FOR LIBEL AND
OBTAINED A VERDICT FOR $31,500 WHICH THE SUPREME COURT OF NEW HAMPSHIRE
AFFIRMED.  THIS COURT, RELYING ON NEW YORK TIMES CO. V. SULLIVAN, 376
U.S. 254, AND GARRISON V. LOUISIANA, 379 U.S. 64, REVERSES THAT
JUDGMENT AND REMANDS TO THE STATE COURT UNDER CONDITIONS EXPRESSED IN
ITS OPINION THAT WILL ALLOW A NEW TRIAL AND ANOTHER JUDGMENT AGAINST
ROSENBLATT.  I CONCUR IN THE REVERSAL BUT DISSENT FROM LEAVING THE CASE
OPEN FOR A NEW TRIAL BELIEVING THAT FOR REASONS STATED IN THE
CONCURRING OPINIONS OF MR. JUSTICE DOUGLAS AND MYSELF IN THE NEW YORK
TIMES AND GARRISON CASES A LIBEL JUDGMENT AGAINST ROSENBLATT IS
FORBIDDEN BY THE FIRST AMENDMENT WHICH THE FOURTEENTH MADE APPLICABLE
TO THE STATES. 

I THINK THE PUBLICATION HERE, DISCUSSING THE WAY AN AGENT OF
GOVERNMENT DOES HIS GOVERNMENTAL JOB, IS THE VERY KIND THAT THE FIRST
AMENDMENT WAS ADOPTED PRIMARILY TO PROTECT.  THE ARTICLE HERE SUED ON
AS LIBELOUS DISCUSSES THE USE OF THE PUBLIC'S MONEY TO TAKE CARE OF THE
PUBLIC'S BUSINESS BY A PAID AGENT OF THE PUBLIC.  UNCONDITIONAL FREEDOM
TO CRITICIZE THE WAY SUCH PUBLIC FUNCTIONS ARE PERFORMED IS IN MY
JUDGMENT NECESSARILY INCLUDED IN THE GUARANTEES OF THE FIRST
AMENDMENT.  AND THE RIGHT TO CRITICIZE A PUBLIC AGENT ENGAGED IN PUBLIC
ACTIVITIES CANNOT SAFELY, AND SHOULD NOT, DEPEND UPON WHETHER OR NOT
THAT AGENT IS ARBITRARILY LABELED A "PUBLIC OFFICIAL."  NOR SHOULD THE
RIGHT TO CRITICIZE DEPEND UPON HOW HIGH A POSITION IN GOVERNMENT A
PUBLIC AGENT MAY OCCUPY.  INDEED A LARGE PERCENTAGE OF PUBLIC MONEYS
EXPENDED IS DISTRIBUTED BY LOCAL AGENTS HANDLING LOCAL FUNDS AS THE
RESPONDENT IN THIS CASE DID.  TO BE FAITHFUL TO THE FIRST AMENDMENT'S
GUARANTEES, THIS COURT SHOULD FREE PRIVATE CRITICS OF PUBLIC AGENTS
FROM FEAR OF LIBEL JUDGMENTS FOR MONEY JUST AS IT HAS FREED CRITICS
FROM FEARS OF PAINS AND PENALTIES INFLICTED BY GOVERNMENT. 

THIS CASE ILLUSTRATES I THINK WHAT A SHORT AND INADEQUATE STEP THIS
COURT TOOK IN THE NEW YORK TIMES CASE TO GUARD FREE PRESS AND FREE
SPEECH AGAINST THE GRAVE DANGERS TO THE PRESS AND THE PUBLIC CREATED BY
LIBEL ACTIONS.  HALF-MILLION-DOLLAR JUDGMENTS FOR LIBEL DAMAGES LIKE
THOSE AWARDED AGAINST THE NEW YORK TIMES WILL NOT BE STOPPED BY
REQUIREMENTS THAT "MALICE" BE FOUND, HOWEVER THAT TERM IS DEFINED. 
SUCH A REQUIREMENT IS LITTLE PROTECTION AGAINST HIGH EMOTIONS AND DEEP
PREJUDICES WHICH FREQUENTLY PERVADE LOCAL COMMUNITIES WHERE LIBEL SUITS
ARE TRIED.  AND THIS COURT CANNOT AND SHOULD NOT LIMIT ITS PROTECTION
AGAINST SUCH PRESS-DESTROYING JUDGMENTS BY REVIEWING THE EVIDENCE,
FINDINGS, AND COURT RULINGS ONLY ON A CASE-BY-CASE BASIS.  THE ONLY
SURE WAY TO PROTECT SPEECH AND PRESS AGAINST THESE THREATS IS TO
RECOGNIZE THAT LIBEL LAWS ARE ABRIDGMENTS OF SPEECH AND PRESS AND
THEREFORE ARE BARRED IN BOTH FEDERAL AND STATE COURTS BY THE FIRST AND
FOURTEENTH AMENDMENTS.  I REPEAT WHAT I SAID IN THE NEW YORK TIMES CASE
THAT "AN UNCONDITIONAL RIGHT TO SAY WHAT ONE PLEASES ABOUT PUBLIC
AFFAIRS IS WHAT I CONSIDER TO BE THE MINIMUM GUARANTEE OF THE FIRST
AMENDMENT." 

FINALLY, SINCE THIS CASE IS TO BE SENT BACK AND A NEW TRIAL MAY
FOLLOW, I ADD ONE FURTHER THOUGHT.   THE COURT INDICATES THAT IN A
RETRIAL IT WILL BE FOR THE TRIAL JUDGE "IN THE FIRST INSTANCE" TO
DECIDE WHETHER RESPONDENT IS A "PUBLIC OFFICIAL."  STATEMENTS LIKE THIS
HAVE A WAY OF GROWING AND I FEAR THAT THE WORDS "IN THE FIRST INSTANCE"
WILL SOON BE FORGOTTEN.  WHEN THAT HAPPENS THE RULE WILL BE THAT THE
FEDERAL CONSTITUTION FORBIDS STATES TO LET JURIES DECIDE ESSENTIALLY
JURY QUESTIONS IN LIBEL CASES.  AFTER A LONG FIGHT IN ENGLAND FOX'S
LIBEL ACT OF 1792 WAS PASSED AND IT PROVIDED THAT JURIES SHOULD BE THE
JUDGES OF BOTH THE LAW AND THE FACTS IN LIBEL CASES.  THIS WAS HERALDED
BY ALL LOVERS OF FREEDOM OF SPEECH AND PRESS AS A VICTORY FOR FREEDOM. 
THIS RULE WAS PARTICULARLY APPROVED IN THIS COUNTRY WHERE IN 1735 JOHN
PETER ZENGER WAS PROSECUTED IN A HIGHLY PUBLICIZED TRIAL FOR
CRITICIZING THE GOVERNMENT OF NEW YORK.  IN THAT CASE THE CHIEF JUSTICE
OF THE PROVINCE OF NEW YORK GOT RID OF TWO LAWYERS WHO DARED DEFEND
ZENGER BY DISBARRING THEM.  THE LAWYER WHO FINALLY DEFENDED ZENGER,
ANDREW HAMILTON, WON IMPERISHABLE FAME IN THIS COUNTRY BY HIS BOLDNESS
IN TELLING THE JURY THAT THEY, NOT THE JUDGE, HAD THE RIGHT TO SAY
WHETHER OR NOT THE DEFENDANT WAS GUILTY.  ZENGER WAS ACQUITTED.  17
HOW.  ST. TR. 675.  MANY OF THE STATES FAMILIAR WITH THIS OPPRESSIVE
PRACTICE OF DENYING THE JURY AND GRANTING THE JUDGE POWER TO DETERMINE
THE GUILT OF A DEFENDANT IN LIBEL CASES WROTE IN THEIR CONSTITUTIONS
SPECIAL PROVISIONS TO PROTECT THE RIGHT TO TRIAL BY JURY IN SUCH
CASES.   I REGRET TO SEE THE COURT TAKE A SINGLE STEP IN THE DIRECTION
OF HOLDING THAT A JUDGE RATHER THAN THE JURY IS TO HAVE THE
DETERMINATION OF ANY FACT IN LIBEL CASES.  COMPARE JACKSON V. DENNO,
378 U.S. 368. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT'S OPINION EXCEPT FOR PART II, IN WHICH A
A "THEORY" OF "IMPERSONAL" LIBEL, WHICH WE HELD CONSTITUTIONALLY
IMPERMISSIBLE IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254. 

IN NEW YORK TIMES, IN ADDITION TO ESTABLISHING A CONSTITUTIONAL
STANDARD GOVERNING ACTIONS FOR DEFAMATION OF PUBLIC OFFICIALS, WE WENT
ON TO EXAMINE THE EVIDENCE IN THAT PARTICULAR CASE.  WE FOUND THAT "IT
WAS INCAPABLE OF SUPPORTING THE JURY'S FINDING THAT THE ALLEGEDLY
LIBELOUS STATEMENTS WERE MADE 'OF AND CONCERNING' RESPONDENT."  376
U.S., AT 288.  THE STATEMENTS IN QUESTION, IN GENERAL TERMS, ATTRIBUTED
MISCONDUCT TO THE POLICE OF MONTGOMERY, ALABAMA, DURING CIVIL RIGHTS
ACTIVITIES.  THE PLAINTIFF IN THE LIBEL SUIT, THE COMMISSIONER OF
PUBLIC AFFAIRS, PRESSED HIS ACTION NOT ON THE THEORY THAT THE STATEMENT
REFERRED TO HIM, BUT INSTEAD "SOLELY ON THE UNSUPPORTED ASSUMPTION
THAT, BECAUSE OF HIS OFFICIAL POSITION," THE STATEMENTS MUST BE TAKEN
AS INDICATING THAT HE HAD BEEN INVOLVED IN THE MISCONDUCT.  376 U.S.,
AT 289.  THE SUPREME COURT OF ALABAMA HELD THAT "IN MEASURING THE
PERFORMANCE OR DEFICIENCIES OF  ...  GROUPS (SUCH AS THE POLICE),
PRAISE OR CRITICISM IS USUALLY ATTACHED TO THE OFFICIAL IN COMPLETE
CONTROL OF THE BODY," 273 ALA. 656, AT 674-675, 144 SO. 2D 25, AT 39,
AND ALLOWED THE ACTION BY THE COMMISSIONER.    IN SETTING ASIDE THE
STATE JUDGMENT WE NOTED THAT THIS PROPOSITION HAD "DISQUIETING
IMPLICATIONS FOR CRITICISM OF GOVERNMENTAL CONDUCT," 376 U.S., AT 291,
FOR IT PERMITTED ANY GENERAL STATEMENT CRITICIZING SOME GOVERNMENTAL
ACTIVITY TO BE TRANSMUTED INTO A CAUSE OF ACTION FOR PERSONAL LIBEL BY
THE OFFICIAL IN CHARGE OF THAT ACTIVITY.  WE STATED THAT THE LIBERTY OF
EXPRESSION EMBODIED IN THE FOURTEENTH AMENDMENT FORBADE A STATE FROM
PERMITTING "AN OTHERWISE IMPERSONAL ATTACK ON GOVERNMENTAL OPERATIONS"
TO BE USED AS THE BASIS OF "A LIBEL OF AN OFFICIAL RESPONSIBLE FOR
THOSE OPERATIONS."  376 U.S., AT 292.    THIS SALUTARY PRINCIPLE HAS
BEEN APPLIED, I BELIEVE INCORRECTLY, TO THE FACTS OF THIS CASE.  IT IS
TRUE THAT, ON ITS FACE, THE ALLEGED LIBEL HERE SEEMS TO DISCUSS ONLY
THE CONDUCT OF GOVERNMENTAL OPERATIONS, VIZ., THE COMPARATIVE
IMPROVEMENT IN THE MANAGEMENT OF THE SKI AREA.  HOWEVER, THE THEORY ON
WHICH RESPONDENT BASED HIS CLAIM IS THAT THE RHETORICAL QUESTION, "WHAT
HAPPENED TO ALL THE MONEY LAST YEAR?  AND EVERY OTHER YEAR?"  WAS READ
AS ACCUSING HIM OF PECULATION OR CULPABLE MISMANAGEMENT.  THE TRIAL
COURT AND THE SUPREME COURT OF NEW HAMPSHIRE, AS WELL AS THIS COURT,
HAVE FOUND THIS A PERMISSIBLE READING OF THE NEWSPAPER ARTICLE. 

THE CHARGE OF THE TRIAL COURT DID NOT LEAVE THE JURY FREE TO CONVERT
AN "IMPERSONAL" INTO A "PERSONAL" LIBEL.  THE COURT MERELY INSTRUCTED
THE JURY THAT IF IT INTERPRETED THE ARTICLE AS AN ACCUSATION OF
MISCONDUCT THE JURY COULD FIND FOR THE PLAINTIFF IF EITHER HE ALONE WAS
FOUND TO BE LIBELED, OR HE WAS ONE OF A SMALL GROUP OF PERSONS SO
LIBELED.* THIS IS CONVENTIONAL TORT LAW.  "IF THE GROUP IS SMALL ENOUGH
NUMERICALLY OR SUFFICIENTLY RESTRICTED GEOGRAPHICALLY SO THAT PEOPLE
REASONABLY THINK THE DEFAMATORY UTTERANCE WAS DIRECTED TO OR INTENDED
TO INCLUDE THE PLAINTIFF, THERE MAY BE A RECOVERY."  1 HARPER & JONES,
TORTS SEC. 5.7, AT 367 (1956).  SEE ALSO PROSSER, TORTS SEC. 106, AT
767-768 (1964); RIESMAN, DEMOCRACY AND DEFAMATION:  CONTROL OF GROUP
LIBEL, 42 COL. L. REV. 727, 759-760 (1942).  THE RESTATEMENT OF TORTS
SEC. 564, COMMENT C (1938), INCLUDES THIS ASPECT OF DEFAMATION IN
LANGUAGE VERY SIMILAR TO THAT OF THE CHARGE IN THIS CASE: 

*THE TRIAL JUDGE CHARGED THE JURY AS FOLLOWS: 

"AN INSINUATION OF A CRIME IS ACTIONABLE AS A POSITIVE ASSERTION IF
THE MEANING IS REASONABLY PLAIN AND CLEAR, AND THE PUTTING OF THE WORDS
IN THE FORM OF A QUESTION DOES NOT CHANGE THE LIABILITY OF THE
DEFENDANT IF THE FORM AND SENSE OF THE QUESTION IS DEFAMATORY OR
DEROGATORY.  NOW, AN IMPUTATION OF IMPROPRIETY OR A CRIME TO ONE OR
SOME OF A SMALL GROUP THAT CASTS SUSPICION UPON ALL IS ACTIONABLE.  IT
IS SUFFICIENT IF MR. BAER, THE PLAINTIFF HERE, PROVES ON THE BALANCE OF
PROBABILITIES BY HIS EVIDENCE THAT HE WAS ONE OF A GROUP UPON WHOM
SUSPICION WAS CAST, AND THE FACT THAT OTHERS IN THIS GROUP MIGHT ALSO
HAVE BEEN LIBELED IS NOT A DEFENSE; BUT MR. BAER HAS THE BURDEN OF
SHOWING THAT THE DEFAMATION, IF YOU FIND THAT THERE WAS ONE, EITHER WAS
DIRECTED TO HIM OR COULD HAVE BEEN AS ONE OF A SMALL GROUP."  R. VOL.
V, PP. 148-149. 

     *         *         *        *         * 

"NOW, AS TO ANY PART OF THE ARTICLE WHICH YOU, IF YOU DO, FIND
DEFAMATORY, AND THAT MR. BAER WAS INTENDED, OR HE WITH A FEW OTHERS WAS
INTENDED, HE AND A SMALL GROUP, IF YOU FIND THAT IT WAS DEROGATORY OF
HIM AND CHARGED HIM WITH A CRIME, HELD HIM UP TO SCORN AND RIDICULE,
THAT HE WAS THE FELLOW, EITHER SINGLY OR IN A SMALL GROUP, THEN YOU CAN
GO ON TO CONSIDER - AND YOU SHOULD - WHETHER THE PUBLICATION WAS
PRIVILEGED OR JUSTIFIED  ...  ."  R. VOL. V, PP. 151-152. 

"THE SIZE OF THE CLASS MAY BE SO SMALL AS TO INDICATE THAT THE
PLAINTIFF IS THE PERSON INTENDED OR AT LEAST TO CAST SUCH GRAVE
SUSPICION UPON HIM AS TO BE DEFAMATORY OF HIM.  THUS, A STATEMENT THAT
ALL MEMBERS OF A SCHOOL BOARD OR A CITY COUNCIL ARE CORRUPT IS
SUFFICIENTLY DEFINITE TO CONSTITUTE A DEFAMATORY PUBLICATION OF EACH
MEMBER THEREOF.  IF, HOWEVER, THE GROUP OR CLASS DISPARAGED IS A LARGE
ONE, SOME PARTICULAR CIRCUMSTANCES MUST POINT TO THE PLAINTIFF AS THE
PERSON DEFAMED.  THUS, A STATEMENT THAT ALL LAWYERS ARE DISHONEST OR
THAT ALL MINISTERS ARE LIARS IS NOT DEFAMATORY OF ANY PARTICULAR LAWYER
OR MINISTER UNLESS THE SURROUNDING CIRCUMSTANCES INDICATE THAT HE WAS
THE PERSON INTENDED." 

THIS AND THE TRIAL COURT'S FORMULATION CAN SCARCELY BE THOUGHT TOO
INDEFINITE, FOR THEY REFLECT STANDARDS SUCCESSFULLY APPLIED OVER THE
YEARS IN NUMEROUS STATE CASES.  SEE, E.G., GROSS V. CANTOR, 270 N.Y.
93, 200 N.E. 592; CASES CITED IN HARPER & JAMES, SUPRA, SEC. 5.7, AT
367; AND PROSSER, SUPRA, SEC. 106, AT 767-768.  THE RULE IS AN
EMINENTLY SOUND ONE. 

AS TO THE FACTS AT HAND, IT SEEMS TO BE AGREED - APART OF COURSE FROM
THE PUBLIC-OFFICIAL "MALICE" RULE WHICH WOULD APPLY IN ANY EVENT - THAT
IF THE ARTICLE IN QUESTION IS READ BY THE JURY AS AN ACCUSATION OF
WRONGDOING BY BAER, HE HAS A GOOD CAUSE OF ACTION IN LIBEL.  I SEE NO
REASON WHY THAT CAUSE OF ACTION SHOULD FAIL IF THE JURY FINDS THAT THE
ARTICLE WAS READ AS ACCUSING THE THREE COMMISSIONERS ALONG WITH BAER. 
THIS IS A VERY DIFFERENT CASE FROM NEW YORK TIMES, WHERE THE ALLEGED
LIBEL CONCERNED NOT AN IDENTIFIED SMALL GROUP RESPONSIBLE FOR THE
RUNNING OF A PARTICULAR PUBLIC ENTERPRISE, BUT A CRITICISM OF "THE
POLICE" GENERALLY IN THE DISCHARGE OF THEIR DUTIES.  IT SEEMS MANIFEST
THAT IN INSTRUCTING THE JURY AS TO A "SMALL GROUP," THE TRIAL JUDGE WAS
NOT ALLOWING THE PLAINTIFF TO TRANSFORM IMPERSONAL GOVERNMENTAL
CRITICISM INTO AN INDIVIDUAL CAUSE OF ACTION, BUT WAS SIMPLY REFERRING
TO THIS TRADITIONAL TORT DOCTRINE THAT MORE THAN ONE PERSON CAN BE
LIBELED BY THE SAME STATEMENT.  I CANNOT UNDERSTAND WHY A STATEMENT
WHICH A JURY IS PERMITTED TO READ AS MEANING "A IS A THIEF" SHOULD
BECOME ABSOLUTELY PRIVILEGED IF IT IS READ AS MEANING "A, B, C, AND D
ARE THIEVES." 

WITHOUT RECEDING IN ANY WAY FROM OUR RULING IN NEW YORK TIMES THAT
IMPERSONAL CRITICISM OF GOVERNMENT CANNOT BE MADE A BASIS FOR A LIBEL
ACTION BY AN OFFICIAL WHO HEADS THE BRANCH OR AGENCY INVOLVED, I
DISSENT FROM THE COURT'S CONCLUSION THAT THIS IS SUCH A CASE.  IN ALL
OTHER RESPECTS I JOIN THE COURT'S OPINION. 

MR. JUSTICE FORTAS, DISSENTING. 

I WOULD VACATE THE WRIT IN THIS CASE AS IMPROVIDENTLY GRANTED.  THE
TRIAL BELOW OCCURRED BEFORE THIS COURT'S DECISION IN NEW YORK TIMES CO.
V. SULLIVAN, 376 U.S. 254.  AS A RESULT, THE FACTUAL RECORD IN THIS
CASE WAS NOT SHAPED IN LIGHT OF THE PRINCIPLES ANNOUNCED IN NEW YORK
TIMES.  PARTICULARLY IN THIS TYPE OF CASE IT IS IMPORTANT TO OBSERVE
THE PRACTICE OF RELATING OUR DECISIONS TO FACTUAL RECORDS.  THEY SERVE
TO GUIDE OUR JUDGMENT AND TO HELP US MEASURE THEORY AGAINST THE SHARP
OUTLINES OF REALITY.  ESPECIALLY WHERE OUR DECISION FURNISHES A
NECESSARILY PROCRUSTEAN BED FOR STATE LAW, I THINK, WITH ALL RESPECT,
THAT WE SHOULD INSIST UPON A RELEVANT FACTUAL RECORD.  A SUBSEQUENT
TRIAL MAY CONCEIVABLY HELP RESPONDENT, BUT IT WILL BE TOO LATE TO BE OF
ASSISTANCE TO US.
..END :












MCMORRIS V. CALIFORNIA 383 U.S. 102 


NO. 1036, MISC.  DECIDED FEBRUARY 21, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MCMORRIS V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SACRAMENTO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















L&N RR CO. V. UNITED STATES 383 U.S. 102 


NO. 792.  DECIDED FEBRUARY 21, 1966.  - 244 F. SUPP. 337, AFFIRMED. 


LOUISVILLE & NASHVILLE RAILROAD CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF KENTUCKY. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















OPERATING ENGINEERS V. DEACON 383 U.S. 103 


NO. 841.  DECIDED FEBRUARY 21, 1966.  - 236 CAL. APP. 2D 302, 46 CAL.
RPTR.  11, APPEAL DISMISSED AND CERTIORARI DENIED. 


INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 12, ET AL. V.
DEACON. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














HEMPHILL V. TAX COMMISSION 383 U.S. 103 


NO. 812.  DECIDED FEBRUARY 21, 1966.  - 65 WASH. 2D 889, 400 P.2D 297,
APPEAL DISMISSED. 


HEMPHILL ET UX., DBA CAPITOL SKATELAND V. WASHINGTON STATE TAX
COMMISSION. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















HC&D MOVING V. YAMANE 383 U.S. 104 


NO. 855.  DECIDED FEBRUARY 21, 1966.  - 48 HAW.  486, 405 P.2D 382,
APPEAL DISMISSED. 


HC&D MOVING & STORAGE CO., INC., ET AL. V. YAMANE, STATE TAX COLLECTOR. 

APPEAL FROM THE SUPREME COURT OF HAWAII. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















NOLAN V. RHODES 383 U.S. 104 


NO. 836.  DECIDED FEBRUARY 21, 1966.  - 251 F. SUPP. 584, AFFIRMED. 


NOLAN V. RHODES, GOVERNOR OF OHIO, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















NIELSEN V. BAR ASSOCIATION 383 U.S. 105 


NO. 1018, MISC.  DECIDED FEBRUARY 21, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


NIELSEN V. NEBRASKA STATE BAR ASSOCIATION. 

APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















VITORATOS V. MAXWELL 383 U.S. 105 


NO. 1003, MISC.  DECIDED FEBRUARY 21, 1966.  - 351 F.2D 217, APPEAL
DISMISSED AND CERTIORARI DENIED. 


VITORATOS V. MAXWELL, WARDEN. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURSIDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















DYSON V. MARYLAND 383 U.S. 106 


NO. 455, MISC.  DECIDED FEBRUARY 21, 1966.  - CERTIORARI GRANTED; 238
MD. 398, 209 A.2D 609; 238 MD. 546, 210 A.2D 730, VACATED AND
REMANDED. 


DYSON V. MARYLAND. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
MARYLAND. 

PER CURIAM. 

UPON CONSIDERATION OF THE ENTIRE RECORD AND THE CONSENT OF THE
ATTORNEY GENERAL OF MARYLAND, THE MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND THE PETITION FOR A WRIT OF CERTIORARI ARE GRANTED.  THE
MOTION TO REMAND IS ALSO GRANTED, THE JUDGMENT OF THE COURT OF APPEALS
OF MARYLAND IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER CONSIDERATION IN LIGHT OF ITS DECISIONS IN SCHOWGUROW V.
MARYLAND, 240 MD. 121, 213 A.2D 475, AND SMITH V. MARYLAND, 240 MD.
464, 214 A.2D 563.  THIS DISPOSITION OF THE CASE IS WITHOUT PREJUDICE
TO ANY OTHER QUESTIONS PRESENTED BY THE PETITION FOR A WRIT OF
CERTIORARI. 
..END :







ENGINEERS V. CHICAGO, R.I.&P.R. CO. 382 U.S. 423 


NO. 69.  ARGUED DECEMBER 8-9, 1965.  - DECIDED JANUARY 31, 1966.* - 239
F. SUPP. 1, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 71, HARDIN ET AL. V. CHICAGO, ROCK ISLAND &
PACIFIC RAILROAD CO. ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


APPELLEES, A GROUP OF INTERSTATE RAILROADS OPERATING IN ARKANSAS, SUED
IN DISTRICT COURT FOR DECLARATORY AND INJUNCTIVE RELIEF ON THE GROUND
THAT TWO ARKANSAS STATUTES WHICH PROVIDED FOR TRAIN CREWS OF MINIMUM
SIZES WERE UNCONSTITUTIONAL.  APPELLEES CLAIMED THAT AS TO THEM THE
STATUTES VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT AND THE COMMERCE CLAUSE; THAT THEY DISCRIMINATED
AGAINST INTERSTATE, AND FAVORED INTRASTATE, COMMERCE BECAUSE BY
EXEMPTING LINES BELOW CERTAIN MILEAGES THEY EXCLUDED FROM COVERAGE ALL
INTRASTATE RAILROADS BUT INCLUDED MOST OF THE INTERSTATE RAILROADS
OPERATING IN ARKANSAS; AND THAT THEY INVADED A LEGISLATIVE FIELD
PRIMARILY PRE-EMPTED BY THE FEDERAL GOVERNMENT WITH THE ENACTMENT IN
1963 OF PUBLIC LAW 88-108.  THAT STATUTE PROVIDED FOR COMPULSORY
ARBITRATION OF THEN CURRENT COLLECTIVE BARGAINING DISPUTES OVER THE USE
OF RAILROAD FIREMEN AND OVER MANNING LEVELS FOR RAILROAD CREWS AND FOR
ARBITRATION AWARDS THAT WERE TO EXPIRE TWO YEARS AFTER THE AWARDS WENT
INTO EFFECT.  A THREE-JUDGE DISTRICT COURT GRANTED APPELLEES' MOTION
FOR SUMMARY JUDGMENT ON THE SINGLE GROUND THAT THE ARKANSAS STATUTES
CONFLICTED WITH PUBLIC LAW 88-108, WHICH WAS HELD TO PRE-EMPT THE FIELD
OF REGULATION.  HELD: 

1.  SINCE THERE WERE SUBSTANTIAL CONSTITUTIONAL CHALLENGES IN THIS
CASE IN ADDITION TO THE PRE-EMPTION ISSUE, IT WAS PROPER TO CONVENE A
THREE-JUDGE DISTRICT COURT, FROM WHOSE JUDGMENT A DIRECT APPEAL LIES TO
THIS COURT.  SWIFT & CO. V. WICKHAM, ANTE, P. 111, DISTINGUISHED.  P.
428. 

2.  IT WAS NOT THE LEGISLATIVE PURPOSE OF PUBLIC LAW 88-108 TO PRE
EMPT THE FIELD OF MANNING-LEVEL REGULATION AND SUPERSEDE STATES' FULL
CREW LAWS, NOR WAS THAT THE EFFECT OF THE STATUTE OR OF THE ARBITRATION
AWARDS MADE THEREUNDER.  PP. 429-437. 

(A)  AS HELD IN MISSOURI PAC. R. CO. V. NORWOOD, 283 U.S. 249, AT
256, ONE OF THREE CASES IN WHICH THIS COURT UPHELD THE ARKANSAS
STATUTES AGAINST FEDERAL PRE-EMPTION CHARGES, CONGRESS IN THE ABSENCE
OF A CLEARLY EXPRESSED PURPOSE, WILL NOT BE HELD TO HAVE INTENDED TO
PREVENT EXERCISE OF THE STATES' POLICE POWER TO REGULATE CREW SIZES. 
P. 429. 

(B)  THE PROBLEM OF RAILROAD MANNING LEVELS, AND PARTICULARLY WHETHER
OR NOT RETENTION OF FIREMEN IS NECESSARY, HAS LED TO CONSTANT
COLLECTIVE BARGAINING DISPUTES BETWEEN THE RAILROADS AND UNIONS. 
PUBLIC LAW 88-108 WAS ENACTED TO DEAL WITH SUCH A DISPUTE WHICH BEGAN
IN 1959 AND BY 1963, DESPITE VARIOUS SETTLEMENT EFFORTS, REACHED AN
IMPASSE WHICH THREATENED TO RESULT IN A NATIONWIDE STRIKE.  PP. 429
431. 

(C)  THE STATUTE WAS INTENDED TO DEAL WITH THAT EMERGENCY ON A
TEMPORARY BASIS ONLY AND WAS NOT DESIGNED EITHER PERMANENTLY TO
SUPPLANT COLLECTIVE BARGAINING OVER MANNING LEVELS OR TO SUPERSEDE
STATE FULL-CREW LAWS.  PP. 431-437. 

3.  THE RECORD IN THIS CASE DOES NOT SUPPORT A CONCLUSION THAT THE
MILEAGE BASES FIXED FOR APPLICATION OF THE STATUTES WERE IRRATIONAL AND
DISCRIMINATORY.  PP. 437-438. 

4.  THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR CONSIDERATION OF
THE CONSTITUTIONAL ISSUES NOT YET DECIDED.  P. 438. 

BROTHERHOOD OF LOCOMOTIVE ENGINEERS ET AL. V. CHICAGO, ROCK ISLAND &
PACIFIC RAILROAD CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF ARKANSAS. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. CHIEF
JUSTICE WARREN. 

APPELLEES, A GROUP OF INTERSTATE RAILROADS OPERATING IN ARKANSAS,
BROUGHT THIS ACTION IN A UNITED STATES DISTRICT COURT ASKING THAT COURT
TO DECLARE TWO ARKANSAS STATUTES UNCONSTITUTIONAL AND TO ENJOIN TWO
ARKANSAS PROSECUTING ATTORNEYS, APPELLANTS HERE, FROM ENFORCING OR
ATTEMPTING TO ENFORCE THE TWO STATE STATUTES.  THE RAILROAD
BROTHERHOODS, ALSO APPELLANTS HERE, WERE ALLOWED TO INTERVENE IN THE
DISTRICT COURT IN ORDER TO DEFEND THE VALIDITY OF THE STATE STATUTES. 
ONE OF THOSE STATUTES, ENACTED IN 1907, MAKES IT AN OFFENSE FOR A
RAILROAD OPERATING A LINE OF MORE THAN 50 MILES TO HAUL FREIGHT TRAINS
CONSISTING OF MORE THAN 25 CARS WITHOUT HAVING A TRAIN CREW CONSISTING
OF NOT "LESS THAN AN ENGINEER, A FIREMAN, A CONDUCTOR AND THREE
BRAKEMEN  ...  ."  (FN1)  THE SECOND STATUTE CHALLENGED BY THE
RAILROADS, ENACTED IN 1913, MAKES IT AN OFFENSE FOR ANY RAILROAD
OPERATING WITH LINES 100 MILES OR MORE IN LENGTH TO ENGAGE IN SWITCHING
ACTIVITIES IN CITIES OF DESIGNATED POPULATIONS, WITH "LESS THAN ONE (1)
ENGINEER, A FIREMAN, A FOREMAN AND THREE (3) HELPERS  ...  ."  (FN2)
THE COMPLAINT CHARGED THAT, AS APPLIED TO THE PLAINTIFF RAILROADS, BOTH
STATUTES (1) OPERATE IN AN "ARBITRARY, CAPRICIOUS, DISCRIMINATORY AND
UNREASONABLE" MANNER IN VIOLATION OF THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT; (2) UNDULY INTERFERE
WITH, BURDEN AND NEEDLESSLY INCREASE THE COST OF INTERSTATE COMMERCE IN
VIOLATION OF THE COMMERCE CLAUSE, ART. I, SEC. 8, CL. 3, OF THE
CONSTITUTION, AND CONTRARY TO THE NATIONAL TRANSPORTATION POLICY
EXPRESSED IN THE INTERSTATE COMMERCE ACT; (3) DISCRIMINATE AGAINST
INTERSTATE COMMERCE IN FAVOR OF LOCAL OR INTRASTATE COMMERCE; AND (4)
BY SEEKING TO REGULATE AND CONTROL THE NUMBER OF PERSONS WORKING ON
INTERSTATE RAILROAD LOCOMOTIVES AND CARS INVADE A FIELD OF LEGISLATION
PRE-EMPTED BY THE FEDERAL GOVERNMENT PRIMARILY THROUGH FEDERAL
ENACTMENT OF PUBLIC LAW 88-108 PASSED BY CONGRESS IN 1963.  (FN3)  THIS
LAW WAS PASSED TO AVERT A NATIONWIDE RAILROAD STRIKE THREATENED BY A
LABOR DISPUTE BETWEEN THE NATIONAL RAILROADS AND THE BROTHERHOODS OVER
THE NUMBER OF EMPLOYEES THAT SHOULD BE USED ON TRAINS. 

IN THEIR COMPLAINT THE RAILROADS ADMITTED THAT THIS COURT HAD ON
THREE SEPARATE OCCASIONS, IN 1911, (FN4) IN 1916, (FN5) AND AGAIN IN
1931, (FN6) SUSTAINED THE CONSTITUTIONALITY OF BOTH STATE STATUTES
AGAINST THE SAME FOURTEENTH AMENDMENT AND COMMERCE CLAUSE CHALLENGES
MADE IN THE PRESENT ACTION.  THE COMPLAINT ALLEGED, HOWEVER, THAT
IMPROVEMENTS HAVE NOW BEEN SO GREAT IN LOCOMOTIVES, FREIGHT CARS,
COUPLERS, BRAKES, TRACKAGE, ROADBEDS, AND OPERATING METHODS THAT THE
FACTS ON WHICH THE PRIOR HOLDINGS RESTED NO LONGER EXIST.  THE
BROTHERHOODS AND THE TWO DEFENDANT PROSECUTING ATTORNEYS ANSWERED THE
COMPLAINT ASSERTING THE CONSTITUTIONALITY OF THE ACTS AND DENYING THAT
THERE HAD BEEN A CHANGE IN CONDITIONS SO SIGNIFICANT AS TO JUSTIFY ANY
DEPARTURE FROM THIS COURT'S PRIOR DECISIONS.  THE BROTHERHOODS' ANSWER
ALLEGED THAT MODERN DEVELOPMENTS HAD ACTUALLY MULTIPLIED THE DANGERS OF
RAILROADING THUS MAKING THE ARKANSAS STATUTES MORE NECESSARY THAN
EVER.  THE PLEADINGS THEREFORE, AT LEAST TO SOME EXTENT, PRESENTED
FACTUAL ISSUES CALLING FOR THE INTRODUCTION AND DETERMINATION OF
EVIDENCE UNDER PRIOR HOLDINGS OF THIS COURT.  SEE, E.G., SOUTHERN
PACIFIC CO. V. ARIZONA, 325 U.S. 761.  AT THIS STAGE OF THE TRIAL,
HOWEVER, THE RAILROADS, CLAIMING THERE WAS NO SUBSTANTIAL DISPUTE IN
THE EVIDENCE WITH REFERENCE TO ANY RELEVANT ISSUES, FILED A MOTION FOR
SUMMARY JUDGMENT UNDER RULE 56, FED. RULES CIV. PROC. ALLEGING THAT:
(1) BOTH STATE STATUTES ARE "PRE-EMPTED BY FEDERAL LEGISLATION IN
CONFLICT THEREWITH, TO-WIT:  PUBLIC LAW 88-108 AND THE AWARD OF
ARBITRATION BOARD NO. 282 PURSUANT THERETO; THE RAILWAY LABOR ACT  ...
; AND THE INTERSTATE COMMERCE ACT  ...  PARTICULARLY THE PREAMBLE
THERETO"; (2) THE STATE STATUTES CONSTITUTE DISCRIMINATORY LEGISLATION
AGAINST INTERSTATE COMMERCE IN VIOLATION OF THE COMMERCE CLAUSE; AND
(3) THE STATE STATUTES DENY THE RAILROADS EQUAL PROTECTION OF THE LAWS
IN VIOLATION OF THE FOURTEENTH AMENDMENT.  WITHOUT HEARING ANY EVIDENCE
THE THREE-JUDGE COURT CONVENED TO CONSIDER THE CASE SUSTAINED THE
RAILROADS' MOTION FOR SUMMARY JUDGMENT, HOLDING, ONE JUDGE DISSENTING,
THAT THE ARKANSAS STATUTES ARE "IN SUBSTANTIAL CONFLICT WITH PUBLIC LAW
88-108  ...  AND THE PROCEEDINGS THEREUNDER, AND ARE THEREFORE
UNENFORCEABLE AGAINST THE PLAINTIFFS  ...  ."  239 F. SUPP. 1, 29.  THE
DISTRICT COURT DID NOT PURPORT TO RULE ON THE OTHER QUESTIONS PRESENTED
IN THE MOTION FOR SUMMARY JUDGMENT AND THE COMPLAINT.  WE NOTED
PROBABLE JURISDICTION, 381 U.S. 949. 

A FEW WEEKS AGO THIS COURT HELD IN SWIFT & CO. V. WICKHAM, ANTE, P.
111, THAT AN ALLEGATION THAT A STATE STATUTE IS PRE-EMPTED BY A FEDERAL
STATUTE DOES NOT ALLEGE THE UNCONSTITUTIONALITY OF THE STATE STATUTE SO
AS TO CALL FOR THE CONVENING OF A THREE-JUDGE COURT UNDER 28 U.S.C.
SEC. 2281 (1964 ED.).  THUS, UNDER SWIFT, THE PRE-EMPTION ISSUE IN THIS
CASE STANDING ALONE WOULD NOT HAVE JUSTIFIED A THREE-JUDGE COURT, AND
HENCE WOULD NOT HAVE JUSTIFIED DIRECT APPEAL TO US UNDER 28 U.S.C. SEC.
1253 (1964 ED.).  THE COMPLAINT HERE, HOWEVER, ALSO CHALLENGED THE
ARKANSAS STATUTES AS BEING IN VIOLATION OF THE COMMERCE, DUE PROCESS,
AND EQUAL PROTECTION CLAUSES.  IN BRIEFS SUBMITTED TO US AFTER ORAL
ARGUMENT THE APPELLANTS HAVE ARGUED THAT ALL THESE CONSTITUTIONAL
CHALLENGES ARE SO INSUBSTANTIAL AS A MATTER OF LAW THAT THEY ARE
INSUFFICIENT TO MAKE THIS AN APPROPRIATE CASE FOR A THREE-JUDGE COURT. 
WE CANNOT ACCEPT THAT ARGUMENT.  WHATEVER THE ULTIMATE HOLDINGS ON THE
QUESTIONS MAY BE WE CANNOT DISMISS THEM AS INSUBSTANTIAL ON THEIR
FACE.  NOR DOES THE FACT THAT THE PRE-EMPTION ISSUE ALONE WAS PASSED ON
BY THE DISTRICT COURT KEEP THIS FROM BEING A THREE-JUDGE CASE.   HAD
ALL THE ISSUES BEEN TRIED BY THE DISTRICT COURT AND HAD THAT COURT
ENJOINED ENFORCEMENT OF THE STATE LAWS ON PRE-EMPTION ALONE, WE WOULD
HAVE HAD JURISDICTION OF A DIRECT APPEAL TO US UNDER 28 U.S.C. SEC.
1253 (1964 ED.).  FLORIDA LIME & AVOCADO GROWERS, INC. V. JACOBSEN, 362
U.S. 73.  THE SAME IS TRUE HERE WHERE THE STATE LAWS WERE ENJOINED ON
THE BASIS OF PRE-EMPTION BUT THE OTHER CONSTITUTIONAL CHALLENGES WERE
LEFT UNDECIDED.  THUS WE HAVE JURISDICTION AND SO PROCEED TO THE
MERITS. 

                                        I. 

WE FIRST CONSIDER THE QUESTION OF PRE-EMPTION.  CONGRESS
UNQUESTIONABLY HAS POWER UNDER THE COMMERCE CLAUSE TO REGULATE THE
NUMBER OF EMPLOYEES WHO SHALL BE USED TO MAN TRAINS USED IN INTERSTATE
COMMERCE.  IN THE ABSENCE OF CONGRESSIONAL LEGISLATION ON THAT SUBJECT,
HOWEVER, THE STATES HAVE EXTENSIVE POWER OF THEIR OWN TO REGULATE IN
THIS FIELD, PARTICULARLY TO PROTECT THE SAFETY OF RAILROAD EMPLOYEES
AND THE PUBLIC.  THIS COURT SAID IN MISSOURI PAC. R. CO. V. NORWOOD,
ONE OF THE PREVIOUS DECISIONS UPHOLDING THE CONSTITUTIONALITY OF THESE
ARKANSAS STATUTES, THAT: 

"IN THE ABSENCE OF A CLEARLY EXPRESSED PURPOSE SO TO DO CONGRESS WILL
NOT BE HELD TO HAVE INTENDED TO PREVENT THE EXERTION OF THE POLICE
POWER OF THE STATES FOR THE REGULATION OF THE NUMBER OF MEN TO BE
EMPLOYED IN SUCH CREWS."  283 U.S., AT 256. 

SEE ALSO THE SAME CASE, 290 U.S. 600. 

IN VIEW OF NORWOOD AND THE TWO PRECEDING CASES, ALL OF WHICH
SUSTAINED THE CONSTITUTIONALITY OF THE ARKANSAS STATUTES OVER CHARGES
OF FEDERAL PRE-EMPTION, THE QUESTION PRESENTED TO THIS COURT IS WHETHER
IN ADDING THE 1963 COMPULSORY ARBITRATION ACT TO PREVIOUS FEDERAL
LEGISLATION, CONGRESS INTENDED TO PRE-EMPT THIS FIELD AND SUPERSEDE
STATE LEGISLATION LIKE THAT OF ARKANSAS, OR, STATED ANOTHER WAY,
WHETHER APPLICATION OF THE ARKANSAS LAW "WOULD OPERATE TO FRUSTRATE THE
PURPOSE OF THE (1963) FEDERAL LEGISLATION."  TEAMSTERS UNION V. MORTON,
377 U.S. 252, 258. 

SINCE THE RAILROAD UNIONS FIRST GAINED STRENGTH IN THIS COUNTRY THE
PROBLEM OF MANNING TRAINS HAS PRESENTED AN ISSUE OF CONSTANT DISPUTE
BETWEEN THE RAILROADS AND THE UNIONS.  SOME STATES, SUCH AS ARKANSAS,
BELIEVING PERHAPS THAT MANY RAILROADS MIGHT NOT VOLUNTARILY ASSUME THE
EXPENSE NECESSARY TO HIRE ENOUGH WORKERS FOR THEIR TRAINS TO MAKE THE
OPERATIONS AS SAFE AS THEY COULD AND SHOULD BE, PASSED LAWS PROVIDING
FOR THE MINIMUM SIZE OF THE TRAIN CREWS.  WHERE THESE LAWS WERE NOT IN
EFFECT THE QUESTION OF THE SIZE OF THE CREWS WAS SETTLED BY COLLECTIVE
BARGAINING, THOUGH NOT WITHOUT GREAT DIFFICULTY.  IT WAS THIS SENSITIVE
AND TOUCHY PROBLEM WHICH BROUGHT ON THE EXPLOSIVE COLLECTIVE BARGAINING
IMPASSE THAT TRIGGERED THE 1963 ACT WHICH THE RAILROADS NOW CONTEND WAS
INTENDED TO PERMANENTLY SUPERSEDE THE 1907 AND 1913 ARKANSAS STATUTES. 
SUCH A PERMANENT SUPERSESSION WOULD, OF COURSE, AMOUNT TO AN OUTRIGHT
REPEAL OF THE STATUTES BY CONGRESS. 

THE PARTICULAR DISPUTE WHICH EVENTUALLY LED TO THE ENACTMENT OF
PUBLIC LAW 88-108 BEGAN IN 1959 WHEN THE NATION'S MAJOR RAILROADS
NOTIFIED THE BROTHERHOODS THAT THEY CONSIDERED IT TO BE THE RIGHT OF
MANAGEMENT TO HAVE THE UNRESTRICTED DISCRETION TO DECIDE HOW MANY
EMPLOYEES SHOULD BE USED TO MAN TRAINS, AND THAT THEY DID NOT INTEND TO
SUBMIT THAT SUBJECT TO COLLECTIVE BARGAINING IN THE FUTURE.  THE
BROTHERHOODS PROTESTED, SERVING COUNTERPROPOSALS ON THE RAILROADS.  AS
A RESULT THE REPRESENTATIVES OF EACH SIDE MET TO TRY TO NEGOTIATE A NEW
COLLECTIVE BARGAINING AGREEMENT.  ON THE QUESTION OF THE SIZE OF THE
CREWS THE NEGOTIATORS STUCK AND WOULD NOT BUDGE.  THE RAILROAD
NEGOTIATORS INSISTED THAT CHANGED CONDITIONS, PARTICULARLY THE
SUBSTITUTION OF DIESEL AND ELECTRICALLY PROPELLED ENGINES FOR STEAM
ENGINES, HAD MADE FIREMEN COMPLETELY UNNECESSARY EMPLOYEES.   THEY
CONTINUED TO INSIST THAT THE RAILROADS SHOULD BE LEFT FREE TO DECIDE
FOR THEMSELVES WHEN AND HOW MANY FIREMEN SHOULD BE USED, IF ANY AT
ALL.  THROUGHOUT ALL NEGOTIATIONS, AND UP TO NOW, THE BROTHERHOODS HAVE
INSISTED THAT A FIREMAN IS NEEDED EVEN ON A DIESEL ENGINE, PARTICULARLY
TO AID THE ENGINEER AS A LOOKOUT FOR SAFETY PURPOSES, AND TO HELP MAKE
NEEDED REPAIRS AND ADJUSTMENTS WHILE THE TRAIN IS MOVING, SHOULD THE
ENGINE FOR ANY REASON FAIL TO FUNCTION.  AGREEMENT ON THIS QUESTION
PROVING IMPOSSIBLE IN THE 1959 NEGOTIATIONS, PRESIDENT EISENHOWER,
ACTING AT THE REQUEST OF BOTH SIDES, APPOINTED A PRESIDENTIAL
COMMISSION TO TRY TO ADJUST THE DISPUTE.  AFTER LONG INVESTIGATION AND
CONSIDERATION THE COMMISSION REPORTED.  ITS REPORT WAS UNSATISFACTORY
TO THE BROTHERHOODS, NOT WHOLLY SATISFACTORY TO THE RAILROADS, AND DID
NOT RESULT IN ANY SETTLEMENT.  THE DISPUTE DRAGGED ON.  ANOTHER REPORT
WAS MADE BY THE PRESIDENT'S ADVISORY COMMITTEE ON LABOR-MANAGEMENT
POLICY BUT IT ALSO FAILED TO BRING ABOUT AN AGREEMENT. 

ALL EFFORTS AT AGREEMENT HAVING FAILED, PRESIDENT KENNEDY, ON JULY
22, 1963, REPORTED TO CONGRESS THAT ON JULY 29 THE RAILROADS "CAN BE
EXPECTED TO INITIATE WORK RULES CHANGES  ...  .  AND THE BROTHERHOODS
THEREUPON CAN BE EXPECTED TO STRIKE."  "THIS NATION," HE SAID, "STANDS
ON THE BRINK OF A NATIONWIDE RAIL STRIKE THAT WOULD, IN VERY SHORT
ORDER, CREATE WIDESPREAD ECONOMIC CHAOS AND DISTRESS."  POINTING OUT
THE DISASTROUS CONSEQUENCES THAT MIGHT OCCUR TO THE COUNTRY SHOULD A
STRIKE TAKE PLACE, THE PRESIDENT RECOMMENDED LEGISLATION TO PROVIDE
"FOR AN INTERIM REMEDY WHILE AWAITING THE RESULTS OF FURTHER BARGAINING
BY THE PARTIES."  HE RECOMMENDED THAT "FOR A 2-YEAR PERIOD DURING WHICH
BOTH THE PARTIES AND THE PUBLIC CAN BETTER INFORM THEMSELVES ON THIS
PROBLEM  ...  INTERIM WORK RULES CHANGES PROPOSED BY EITHER PARTY TO
WHICH BOTH PARTIES CANNOT AGREE SHOULD BE SUBMITTED FOR APPROVAL,
DISAPPROVAL OR MODIFICATION TO THE INTERSTATE COMMERCE COMMISSION IN
ACCORDANCE WITH THE PROCEDURES AND PROVISIONS OF SECTION 5 OF THE
INTERSTATE COMMERCE ACT  ...  ."  PRESIDENT KENNEDY REPEATEDLY
EMPHASIZED TO THE CONGRESS HIS HOPE THAT THE DISPUTE COULD EVENTUALLY
BE SETTLED BY COLLECTIVE BARGAINING.  HE STATED HIS BELIEF THAT
ADVANCES IN RAILROAD TECHNOLOGY HAD MADE IT NECESSARY TO REDUCE THE
RAILROAD LABOR FORCE, BUT HE INSISTED THAT THE PUBLIC SHOULD HELP BEAR
THE BURDEN OF THIS REDUCTION IN ORDER THAT IT NOT FALL ENTIRELY ON
THOSE EMPLOYEES WHO WOULD LOSE THEIR JOBS.  HE WARNED THE CONGRESS THAT
IT WAS HIGHLY NECESSARY "'FOR WORKERS TO ENJOY REASONABLE PROTECTION
AGAINST THE HARSH EFFECTS OF TOO SUDDEN CHANGE.'"  IN HIS MESSAGE THE
PRESIDENT EXPRESSED NO DESIRE TO HAVE CONGRESS PASS A LAW THAT WOULD
FINALLY AND COMPLETELY DISPOSE OF THE PROBLEM OF THE NUMBER OF MEN WHO
SHOULD MAN THE CREW OF A TRAIN, BUT INSTEAD WARNED THAT "IT WOULD BE
WHOLLY INAPPROPRIATE TO MAKE GENERAL AND PERMANENT CHANGES IN OUR LABOR
RELATIONS STATUTES ON THIS BASIS" AND THAT ANY "'REVOLUTIONARY CHANGES
EVEN FOR THE BETTER CARRY A HIGH PRICE IN DISRUPTION  ...  (THAT) MIGHT
EXCEED THE VALUE OF THE IMPROVEMENTS.'"  THUS THE PRESIDENT'S MESSAGE
DID NOT IN ANY WAY INDICATE A PURPOSE ON HIS PART TO DISTURB THE
EXISTING PATTERN OF FULL-CREW LAWS BY SUPERSESSION OF THEM, EITHER
TEMPORARILY OR PERMANENTLY.    CONGRESS ENACTED THE BILL PROPOSED BY
THE PRESIDENT WITH ONE SIGNIFICANT CHANGE.  HE HAD RECOMMENDED THAT A
BINDING DETERMINATION OF THE ISSUES NOT RESOLVED BY COLLECTIVE
BARGAINING BE MADE BY THE INTERSTATE COMMERCE COMMISSION.  AT LEAST ONE
BROTHERHOOD WITNESS TESTIFIED BEFORE THE SENATE COMMERCE COMMITTEE TO
AN APPREHENSION THAT THE INTERSTATE COMMERCE COMMISSION IF GIVEN THE
POWER REQUESTED WOULD DECLARE STATES' FULL-CREW LAWS SUPERSEDED BY
ORDERS OF THE COMMISSION.  (FN7) SUBSEQUENT TO THIS BOTH THE HOUSE AND
SENATE COMMITTEES DROPPED A SECTION OF THE PROPOSED BILL THAT WOULD
HAVE VESTED POWER IN THE COMMISSION TO MAKE BINDING SETTLEMENTS.  (FN8)
INSTEAD OF THAT SECTION THE ACT PASSED BY CONGRESS PROVIDED FOR
ESTABLISHMENT OF AN ARBITRATION BOARD TO CONSIST OF SEVEN MEMBERS, TWO
APPOINTED BY THE RAILROADS, TWO BY THE UNIONS AND THREE TO BE APPOINTED
BY THE PRESIDENT SHOULD THE FOUR MEMBERS NAMED BY THE RAILROADS AND
UNIONS FAIL TO AGREE AMONG THEMSELVES ON AN ADDITIONAL THREE.  THE
ARBITRATION BOARD WAS GIVEN POWER TO RESOLVE THE DISPUTE OVER THE
FIREMEN AND FULL-CREW QUESTIONS.  THEIR AWARD WAS TO BE A COMPLETE AND
FINAL DISPOSITION OF THESE ISSUES FOR A PERIOD NOT EXCEEDING TWO YEARS
FROM THE DATE THE AWARDS WOULD TAKE EFFECT.  AWARDS WERE MADE BY SUCH A
BOARD WHICH THE RAILROADS NOW CLAIM CALL FOR SUPERSESSION OF THE STATE
LAWS.  WE HOLD THAT NEITHER THE ACT ITSELF NOR THE AWARDS MADE UNDER IT
CAN HAVE SUCH AN EFFECT. 

THE TEXT OF THE ACT AND THE AWARDS MADE UNDER IT CONTAIN NO SECTION
SPECIFICALLY PRE-EMPTING THE STATES' FULL-CREW LAWS NOR IS THERE ANY
SPECIFIC SAVING CLAUSE INDICATING LACK OF INTENT TO PRE-EMPT THEM. 
APPELLEES ARGUE, HOWEVER, THAT THE TERMS OF THE ACT AND THE AWARDS ARE
INCONSISTENT WITH THE OPERATION OF THE STATE LAWS AND THUS THE LAWS ARE
NO LONGER VALID.  BUT CONGRESS WANTED TO DO AS LITTLE AS POSSIBLE IN
SOLVING THE DISPUTE WHICH WAS BEFORE IT, AND WE NOTE THAT THIS DISPUTE
WAS NOT OVER THE SIZE OF CREWS IN STATES WHICH HAD FULL-CREW LAWS, FOR
THERE THE SIZE OF CREWS WAS REGULATED BY STATUTE AND NOT BY COLLECTIVE
BARGAINING AGREEMENTS.  THE RAILROADS MADE THIS VERY POINT BEFORE THE
SENATE COMMERCE COMMITTEE WHEN A SPOKESMAN FOR THREE RAILROADS, IN
COMMENTING ON THE FEW JOBS THAT WOULD BE LOST IF THE BROTHERHOODS
ACCEPTED THE RAILROADS' PROPOSAL, SAID, "25.9 PERCENT OF THE FIREMEN
POSITIONS IN FREIGHT AND YARD SERVICE MUST BE MAINTAINED BECAUSE OF THE
PROVISIONS OF SO-CALLED FULL-CREW LAWS OF THE STATES OF (LISTING 13
STATES INCLUDING ARKANSAS)."  (FN9)  IT APPEARS, THEREFORE, THAT
CONGRESS DID NOT NEED TO PRE-EMPT THE STATE LAWS IN ORDER TO ELIMINATE
THIS COLLECTIVE BARGAINING IMPASSE, AND FURTHER EXAMINATION OF THE
LEGISLATIVE HISTORY OF PUBLIC LAW 88-108 CONFIRMS OUR VIEW THAT
CONGRESS HAD NO INTENTION OF SUPERSEDING THE STATE FULL-CREW LAWS BY
PASSAGE OF THAT ACT. 

THE PRESIDENT'S PROPOSAL WAS INTERPRETED AND EXPLAINED TO THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE BY THE SECRETARY OF
LABOR.  ON THE SUBJECT OF STATE FULL-CREW LAWS HE TOLD THAT COMMITTEE: 

"I CALL ATTENTION TO SUCH STATEMENTS AS THOSE OF THE MISSOURI
RAILROAD COMPANY V. NORWOOD, THE SUPREME COURT CASE IN 1930 IN WHICH
THE COURT SAID, 'IN THE ABSENCE OF A CLEARLY STATED PURPOSE SO TO DO
CONGRESS WILL NOT BE HELD TO HAVE INTENDED TO PREVENT THE ASSERTION OF
THE POLICE POWER OF THE STATES FOR THE REGULATION OF THE NUMBER OF MEN
TO BE EMPLOYED IN SUCH CREWS.'  IT WOULD BE THE INTENTION REFLECTED
HERE THAT THE ISSUANCE OF AN INTERIM RULING, SUBJECT TO TERMINATION IN
A TIME PERIOD OR AT THE AGREEMENT OF THE PARTIES, WOULD NOT HAVE THE
EFFECT OF AFFECTING ANY STATE FULL CREW LAW."  (FN10) 

THE CHAIRMAN OF THE HOUSE COMMITTEE ON SEVERAL OCCASIONS EMPHATICALLY
STATED BOTH IN THE HEARINGS AND ON THE HOUSE FLOOR THAT THE BILL WAS
NOT INTENDED, EITHER AS PROPOSED OR AS PASSED, TO SUPERSEDE STATE
LAWS.  ON ONE OCCASION HE SAID: 

"THIS ISSUE WAS RAISED IN THE COURSE OF THE HEARINGS BEFORE THE
COMMITTEE.  QUESTIONS WERE ASKED OF THE VARIOUS PEOPLE REPRESENTING
MANAGEMENT AND THE LABOR INDUSTRY AND WITNESSES REPRESENTING THE LABOR
BROTHERHOODS, THE EMPLOYEES' REPRESENTATIVES, AND THE SECRETARY OF
LABOR.  IT WAS MADE RATHER CLEAR IN THE COURSE OF THE HEARINGS THAT IT
WOULD IN NO WAY AFFECT THE PROVISIONS OF STATE LAWS.  THE COMMITTEE IN
EXECUTIVE SESSION DISCUSSED THE QUESTION AND CONCLUDED THAT IT WAS NOT
THE INTENT OF THE COMMITTEE IN ANY WAY TO AFFECT STATE LAWS.  ON PAGE
14 OF THE COMMITTEE REPORT WE INCLUDED, IN ORDER THAT THIS HISTORY
MIGHT BE MADE, THIS LANGUAGE:  'THE COMMITTEE DOES NOT INTEND THAT ANY
AWARD MADE UNDER THIS SECTION MAY SUPERSEDE OR MODIFY ANY STATE LAW
RELATING TO THE MANNING OF TRAINS.'"  (FN11) 

THE CHAIRMAN OF THE COMMITTEE THEN WENT ON TO TELL THE HOUSE, AFTER
REFERRING TO THIS COURT'S HOLDING IN MISSOURI PAC. R. CO. V. NORWOOD: 

"THEREFORE, SINCE THIS BILL DOES NOT MENTION THE SUBJECT OF STATE
LAWS, AND SINCE, AS THE COMMITTEE REPORT SHOWS, WE DO NOT INTEND TO
AFFECT THESE LAWS, I AM CONFIDENT THEY ARE NOT AFFECTED BY THE BILL. 

"I THINK THAT IS ABOUT AS CLEAR AS WE CAN MAKE IT." 

MANY STATEMENTS LIKE THOSE QUOTED ABOVE POINT TO THE FACT THAT BOTH
THE SENATE AND THE HOUSE MEMBERS DID NOT INTEND BY ENACTING PUBLIC LAW
88-108 TO SUPERSEDE STATE LAWS.  THIS SENTIMENT WAS VOICED BY WITNESSES
REPRESENTING BOTH LABOR AND RAILROADS AS WELL AS BY PUBLIC OFFICIALS OF
THE NATION.  THE RAILROADS SEEK TO OFFSET THESE CAREFULLY CONSIDERED
EXPRESSIONS BY REFERENCE TO A SINGLE INCIDENT.  ON ONE OF THE OCCASIONS
WHEN REPRESENTATIVE HARRIS, CHAIRMAN OF THE HOUSE COMMITTEE REPORTING
THE BILL, HAD STATED THAT THE ACT WOULD NOT SUPERSEDE THE STATE LAW,
REPRESENTATIVE SMITH OF VIRGINIA, CHAIRMAN OF THE RULES COMMITTEE OF
THE HOUSE, INTERRRUPTED REPRESENTATIVE HARRIS TO MAKE THE STATEMENT SET
OUT BELOW.  (FN12) 

THIS SINGLE STATEMENT BY CONGRESSMAN SMITH WAS HARDLY ENOUGH TO CAST
DOUBT IN THE MINDS OF THE MEMBERS OF THE HOUSE AS TO THE ACCURACY OF
THE STATEMENT MADE BY CONGRESSMAN HARRIS, CHAIRMAN OF THE COMMITTEE
WHICH REPORTED THE BILL.  THE SUBSTANCE OF CONGRESSMAN SMITH'S
STATEMENT WAS: 

"I THINK THE PROVISIONS OF THE CONSTITUTION ARE SUCH AND THE
DECISIONS OF THE COURTS ARE SUCH THAT THERE IS NO WAY IN WHICH A STATE
CAN OVERCOME THE POWER OF THE FEDERAL GOVERNMENT UNDER THE INTERSTATE
COMMERCE CLAUSE." 

THIS STATEMENT WAS, OF COURSE, CORRECT BUT IT HAS LITTLE RELEVANCE AS
TO WHETHER THE BILL WAS INTENDED TO EXERCISE THE POWER OF THE FEDERAL
GOVERNMENT TO SUPERSEDE STATE LAWS. 

IN THE FACE OF THE CLEAR CONGRESSIONAL HISTORY OF THIS ACT WE COULD
NOT HOLD THAT EITHER THE ACT ITSELF OR THE ARBITRATION AWARDS MADE
UNDER IT SUPERSEDE THE ARKANSAS STATE LAWS. 

                             II. 

THE RAILROADS CONTEND THAT THE DISTRICT COURT WOULD HAVE BEEN
JUSTIFIED IN HOLDING THE TWO ARKANSAS ACTS UNCONSTITUTIONAL ON THE
SECOND GROUND OF THEIR MOTION FOR SUMMARY JUDGMENT WHICH IS THAT THE
TWO ACTS "CONSTITUTE DISCRIMINATORY LEGISLATION AGAINST INTERSTATE
COMMERCE IN FAVOR OF INTRASTATE COMMERCE."  ASIDE FROM THE FACT THAT
SUCH AN ARGUMENT WAS APPARENTLY REJECTED IN THE PRIOR CASES UPHOLDING
THE CONSTITUTIONALITY OF THE ARKANSAS STATUTES WE THINK IT IS WHOLLY
WITHOUT MERIT.  THE ARGUMENT IS BASED ON THE FACT THAT THE 1907 STATE
LAW EXEMPTS RAILROADS WITH LESS THAN 50 MILES OF TRACK AND THE 1913 LAW
EXEMPTS RAILROADS WITH LESS THAN 100 MILES OF TRACK.  NONE OF THE
STATE'S 17 INTRASTATE RAILROADS HAVE MORE THAN 50 MILES OF TRACK.  IT
TURNS OUT THAT NONE OF THEM ARE SUBJECT TO EITHER OF THE TWO STATE LAWS
WHILE 10 OF THE 11 INTERSTATE RAILROADS ARE SUBJECT TO THE 1907 ACT AND
EIGHT OF THEM ARE SUBJECT TO THE 1913 ACT.  IT IS IMPOSSIBLE FOR US TO
SAY AS A MATTER OF LAW THAT THIS DIFFERENCE IN TREATMENT BY THE STATE,
BASED ON THE DIFFERING MILEAGE OF RAILROADS, IS WITHOUT ANY RATIONAL
BASIS AS THE RAILROADS CONTEND.  CERTAINLY SOME REGULATIONS BASED ON
DIFFERENT MILEAGE OF RAILROADS MIGHT BE WHOLLY RATIONAL, REASONABLE,
AND DESIRABLE.  WE CANNOT SAY ON THE RECORD NOW BEFORE US THAT
CLASSIFICATION ACCORDING TO THE LENGTH OF MILEAGE IN THESE TWO STATUTES
CONSTITUTES DISCRIMINATION AGAINST INTERSTATE COMMERCE IN VIOLATION OF
THE COMMERCE CLAUSE OR THE EQUAL PROTECTION CLAUSE.  SEE FLORIDA LIME &
AVOCADO GROWERS, INC. V. PAUL, 373 U.S. 132, 137. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED TO THAT COURT FOR CONSIDERATION OF THE CONSTITUTIONAL ISSUES
LEFT UNDECIDED BY ITS PREVIOUS JUDGMENT.  IT IS SO ORDERED. 

FN1  ARK. LAWS 1907, ACT 116, ARK. STAT. ANN. SECS. 73-720 THROUGH 73
722 (1957). 

FN2  ARK. ACT 67 OF 1913, ARK. STAT. ANN. SECS. 73-726 THROUGH 73-729
(1957). 

FN3  77 STAT. 132, 45 U.S.C. FOLLOWING SEC. 157 (1964 ED.). 

FN4  CHICAGO, R.I.&P.R. CO. V. ARKANSAS, 219 U.S. 453. 

FN5  ST. LOUIS, I.M.&S.R. CO. V. ARKANSAS, 240 U.S. 518. 

FN6  MISSOURI PAC. R. CO. V. NORWOOD, 283 U.S. 249, 290 U.S. 600. 
SEE ALSO LATTER CASE BELOW, 13 F. SUPP. 24. 

FN7  HEARINGS BEFORE SENATE COMMITTEE ON COMMERCE ON S.J. RES. NO.
102, 88TH CONG., 1ST SESS., 629. 

FN8  S. REP. NO. 459, 88TH CONG., 1ST SESS., 9. 

FN9  HEARINGS BEFORE THE SENATE COMMITTEE ON COMMERCE ON S.J. RES.
NO. 102, 88TH CONG., 1ST SESS., 707. 

FN10  HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.J. RES.  NO. 565, 88TH CONG., 1ST SESS., 78. 

FN11  109 CONG. REC. 16122 (1963).  SEE ALSO THE COMMITTEE REPORT
REFERRED TO BY CHAIRMAN HARRIS, H.R. REP. NO. 713, 88TH CONG., 1ST
SESS., 14. 

FN12  "MR. SMITH OF VIRGINIA.  MR. SPEAKER, THE COLLOQUY BETWEEN THE
GENTLEMAN FROM CALIFORNIA (MR. SISK), AND THE CHAIRMAN OF THE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE, THE GENTLEMAN FROM ARKANSAS (MR.
HARRIS), RAISES A QUESTION THAT HAS NOT PREVIOUSLY BEEN DISCUSSED ON
THE FLOOR OF THE HOUSE.  IT WAS DISCUSSED IN THE COMMITTEE YESTERDAY
BEFORE THE COMMITTEE ON RULES.  I DO NOT LIKE TO REMAIN SILENT IN VIEW
OF THE STATEMENT THAT A STATE LAW CAN OVERCOME THE CONSTITUTIONAL
PROVISION WHICH GIVES EXCLUSIVE JURISDICTION TO THE FEDERAL GOVERNMENT
IN MATTERS OF INTERSTATE COMMERCE.  I DO NOT KNOW WHAT PRECEDENTS MAY
HAVE BEEN FOUND WITH REFERENCE TO THIS QUESTION, BUT OF COURSE, IN THE
MATTER OF PURELY INTRASTATE COMMERCE UNDER OUR CONSTITUTION THE STATE,
OF COURSE, WOULD HAVE AUTHORITY, BUT WHEN IT COMES TO DEALING WITH
INTERSTATE COMMERCE I THINK THE PROVISIONS OF THE CONSTITUTION ARE SUCH
AND THE DECISIONS OF THE COURTS ARE SUCH THAT THERE IS NO WAY IN WHICH
A STATE CAN OVERCOME THE POWER OF THE FEDERAL GOVERNMENT UNDER THE
INTERSTATE COMMERCE CLAUSE. 

"I SIMPLY WANTED TO MAKE MY OWN POSITION CLEAR WITH REFERENCE TO THAT
QUESTION, FOR WHATEVER IT MAY BE WORTH. 

"MR. EDMONDSON.  MR. SPEAKER, WILL THE GENTLEMAN YIELD? 

"MR. SMITH OF VIRGINIA.  I YIELD TO THE GENTLEMAN FROM OKLAHOMA. 

"MR. EDMONDSON.  I THANK THE DISTINGUISHED CHAIRMAN OF THE COMMITTEE
ON RULES FOR YIELDING TO ME AT THIS POINT.  WOULD THIS NOT MEAN IN
EFFECT THAT ABOUT THE ONLY KIND OF TRAIN OPERATION IN WHICH STATE LAWS
WOULD PREVAIL WOULD BE IN THE SWITCHING OF CARS INVOLVING SWITCH ENGINE
OPERATIONS? 

"MR. SMITH OF VIRGINIA.  OF COURSE, IT IS JUST A QUESTION OF WHAT IS
OR WHAT CONSTITUTES INTERSTATE COMMERCE.  NOW, AS YOU KNOW, THE
DECISIONS OF THE COURTS AND THE ACTIONS OF THE CONGRESS HAVE GONE A
LONG WAY IN PUTTING ALMOST EVERYTHING UNDER INTERSTATE COMMERCE."  109
CONG. REC. 16122 (1963). 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WE ALL AGREE THAT CONGRESS HAS AMPLE POWER TO REGULATE THE NUMBER OF
EMPLOYEES USED TO MAN RAILROAD TRAINS OPERATING IN INTERSTATE
COMMERCE.  UNLIKE THE MAJORITY, HOWEVER, I BELIEVE THAT CONGRESS HAS
EXERCISED THAT POWER, AND RESPECTFULLY DISSENT FROM THE COURT'S
CONCLUSION TO THE CONTRARY. 

THE BARGAINING IMPASSE WHICH PROMPTED THE PASSAGE OF PUBLIC LAW 88
108 (77 STAT. 132) REPRESENTED, IN A SENSE, ONLY THE EXPOSED TOP OF A
LARGE ICEBERG.  LURKING BENEATH THE SURFACE OF THE CONTROVERSY WERE THE
TWIN PROBLEMS OF AUTOMATION AND TECHNOLOGICAL UNEMPLOYMENT.  CONGRESS
WAS WELL AWARE OF THE DEVELOPING CONFLICT BETWEEN INNOVATION AND JOB
SECURITY.  WHEN PRESIDENT KENNEDY SOUGHT A LEGISLATIVE SOLUTION TO THE
PENDING CRISIS IN THE RAILROAD INDUSTRY, HE REMINDED CONGRESS THAT: 

"  ...  THIS DISPUTE OVER RAILROAD WORK RULES IS PART OF A MUCH
BROADER NATIONAL PROBLEM.  UNEMPLOYMENT, WHETHER CREATED BY SO-CALLED
AUTOMATION, BY A SHIFT OF INDUSTRY TO NEW AREAS, OR BY AN OVERALL
SHORTAGE OF MARKET DEMAND, IS A MAJOR SOCIAL BURDEN. 

     *         *         *         *         * 

"THIS PROBLEM IS PARTICULARLY BUT NOT EXCLUSIVELY ACUTE IN THE
RAILROAD INDUSTRY.  FORTY PERCENT FEWER EMPLOYEES THAN WERE EMPLOYED AT
THE BEGINNING OF THIS DECADE NOW HANDLE SUBSTANTIALLY THE SAME VOLUME
OF RAIL TRAFFIC.  THE RAPID REPLACEMENT OF STEAM LOCOMOTIVES BY DIESEL
ENGINES FOR 97 PERCENT OF ALL FREIGHT TONNAGE HAS CONFRONTED MANY
FIREMEN, WHO HAVE SPENT MUCH OF THEIR CAREER IN THIS WORK, WITH THE
UNPLEASANT PROSPECT OF HUMAN OBSOLESCENCE  ...  .  THE PRESIDENTIAL
COMMISSION WAS ESTABLISHED IN PART, IT SAID, BECAUSE OF THE NEED TO
CLOSE THE GAP BETWEEN TECHNOLOGY AND WORK."  (SEE HEARINGS BEFORE
SENATE COMMITTEE ON COMMERCE ON S.J. RES. 102, 88TH CONG., 1ST SESS.,
11-12.) 

THE PRESIDENTIAL RAILROAD COMMISSION TO WHICH PRESIDENT KENNEDY
REFERRED WAS ESTABLISHED BY PRESIDENT EISENHOWER'S ORDER IN 1960, (FN1)
AND WAS CHARGED WITH INVESTIGATING THE DISPUTE WHICH AROSE OUT OF THE
RAILROADS' PROPOSED ELIMINATION OF FIREMEN ON DIESEL ENGINES, AND THE
REDUCTION OF THE NUMBER OF OTHER CREW MEMBERS, IN FREIGHT AND YARD
SERVICE.  AFTER AN EXTENSIVE STUDY, THE COMMISSION ISSUED ITS REPORT
CONTAINING DETAILED FINDINGS ON ALL ASPECTS OF THE DISPUTE.  THE
COMMISSION'S RECOMMENDATIONS INCLUDED THE ELIMINATION OF FIREMEN ON
DIESELS IN FREIGHT SERVICE AND THE REDUCTION OF THE NUMBER OF BRAKEMEN
AND SWITCHMEN.  IT RECOMMENDED FINANCIAL BENEFITS FOR THOSE SEPARATED
FROM SERVICE.    THIS PRESIDENTIAL RAILROAD COMMISSION WAS WELL AWARE
THAT, HOWEVER DESIRABLE MIGHT BE A NATIONWIDE SOLUTION TO THE PROBLEM,
THE CONTINUED EXISTENCE OF STATE "FULL CREW" LAWS MADE THIS
IMPOSSIBLE: 

"MOST OF THE LEGISLATION OF THIS KIND WAS ENACTED PRIOR TO 1920. 
THESE LAWS APPARENTLY FAIL TO ENVISION MODERN RAILROAD OPERATIONS.  WE
FEEL THAT OUR RECOMMENDATIONS WITH RESPECT TO THIS ISSUE SHOULD HAVE
NATIONWIDE APPLICATION.  WE RECOGNIZE THAT THERE WILL BE DIFFICULTY IN
APPLYING THE RULE RECOMMENDED BY US IN STATES WHERE 'FULL CREW' LAWS
HAVE BEEN ENACTED.  HOW THE RESTRICTION OF THOSE LAWS MAY BE LIFTED,
HOWEVER, IS A MATTER WHICH GOES BEYOND OUR CHARGE."  (FN2) 

THEN CAME PUBLIC LAW 88-108, SEC. 3 OF WHICH EMPOWERS THE BOARD TO
"RESOLVE THE MATTERS ON WHICH THE PARTIES WERE NOT IN AGREEMENT" AND TO
MAKE A BINDING AWARD WHICH "SHALL CONSTITUTE A COMPLETE AND FINAL
DISPOSITION OF THE  ...  ISSUES."  SECTION 7(A) LAYS DOWN STANDARDS FOR
THE BOARD: 

(1)  "THE EFFECT OF THE PROPOSED AWARD UPON ADEQUATE AND SAFE
TRANSPORTATION SERVICE": 

(2)  "THE EFFECT OF THE PROPOSED AWARD UPON  ...  THE INTERESTS OF
THE CARRIER AND EMPLOYEES AFFECTED"; AND: 

(3)  "DUE CONSIDERATION TO THE NARROWING OF THE AREAS OF DISAGREEMENT
WHICH HAS BEEN ACCOMPLISHED IN BARGAINING AND MEDIATION." 

TODAY THE COURT CONCLUDES THAT CONGRESS SOUGHT ONLY TO SHEAR OFF THE
VISIBLE PORTION OF THE ICEBERG, LEAVING THE CONTINUED EXISTENCE OF
STATE "FULL CREW" LAWS AS A BAR TO THE RESOLUTION OF THESE MATTERS. 

THAT THE STATE STATUTES IN QUESTION CONFLICT WITH THE FEDERAL
ARBITRATION AWARDS IS PLAIN.  CONGRESS DIRECTED THE NATIONAL
ARBITRATION BOARD TO RESOLVE THE DISPUTE AS TO THE NECESSITY OF FIREMEN
ON DIESEL FREIGHTS AND AS TO THE MINIMUM SIZE OF TRAIN AND SWITCHING
CREWS.  THE BOARD HAS DECLARED THAT, IN GENERAL, FIREMEN ARE NOT TO BE
REQUIRED.  AND THROUGH LOCAL BOARDS, THE NUMBER OF BRAKEMEN, SWITCHMEN,
AND HELPERS TO BE USED IN VARIOUS OPERATIONS IS FIXED.  (FN3)  THESE
STATE LAWS, HOWEVER, COMPEL THE USE OF FIREMEN IN VIRTUALLY ALL
INTERSTATE OPERATIONS AND FIX THE SIZE OF TRAIN CREWS AT LEVELS USUALLY
EXCEEDING THOSE FIXED BY THE LOCAL AWARDS.  (FN4)  STATES LACKING SUCH
LAWS ARE, IN LIGHT OF THE COURT'S DECISION, FREE TO ENACT THEM AND
THEREBY, IN EFFECT, IMPERIL PUBLIC LAW 88-108 AND THE ARBITRATION
AWARDS MADE UNDER IT.  THIS COURT HAS HELD THAT A STATE STATUTE MUST
FALL IN THE FACE OF AN INCONSISTENT PROVISION IN A COLLECTIVE
BARGAINING AGREEMENT NEGOTIATED PURSUANT TO THE COMMAND OF FEDERAL LAW,
TEAMSTERS UNION V. OLIVER, 358 U.S. 283, EVEN THOUGH CONGRESS DID NOT
PRESCRIBE THE PARTICULAR TERMS OF THE AGREEMENT.  AND SEE CALIFORNIA V.
TAYLOR, 353 U.S. 553.  WE HAVE HERE SOMETHING MORE THAN COLLECTIVE
BARGAINING AGREEMENTS.  THESE ARBITRATION AWARDS ARE BINDING
DIRECTIVES, RESOLVING A LABOR-MANAGEMENT DISPUTE, ISSUED UNDER THE
DIRECTION AND AUTHORITY OF CONGRESS. 

THE PROBLEMS SUBMITTED TO THE ARBITRATION BOARD CONCERNED PRIMARILY
TWO CENTRAL ISSUES:  (1) CONTINUED USE OF FIREMEN ON DIESEL-ELECTRIC OR
ELECTRIC LOCOMOTIVES WHICH DO NOT USE STEAM POWER, AND ON WHICH THE
WORK OF FIRING BOILERS NEED NOT BE PERFORMED; (2) THE MAKEUP OR
"CONSIST" OF TRAIN SERVICE CREWS IN ROAD AND YARD.  THESE ARE MATTERS
RECOGNIZED BY THE BOARD AS GOVERNED IN SOME STATES "BY STATUTE OR
ADMINISTRATIVE DECISION."  INDEED, A RESOLUTION OF THEM IN MANY
SITUATIONS MIGHT INVOLVE OVERRIDING OR DISREGARDING CONFLICTING LOCAL
REGULATIONS.  ANY REALISTIC VIEW OF THE SCOPE AND NATURE OF THE IMPASSE
THE PARTIES HAD REACHED WOULD NECESSARILY ENDOW THE BOARD WITH POWER TO
RESOLVE CONFLICTS BETWEEN WHAT IT DEEMED TO BE THE DESIRABLE NATIONAL
POLICY ON THE ONE HAND AND CONFLICTING STATE LAWS ON THE OTHER. 

THE ISSUES WERE FAR-REACHING; THEY INCLUDED QUESTIONS IN THE REALM OF
ECONOMICS, OF RAILROAD TECHNOLOGY, AND OF SOCIOLOGY.  THIS WAS A
CONTROVERSY THAT YEARS OF COLLECTIVE BARGAINING, STUDY, INFORMED
ANALYSIS, PERSUASION, AND DEBATE HAD NOT BEEN ABLE TO RESOLVE.  THE
BOARD'S SEVEN MEMBERS (FN5) HELD 29 DAYS OF HEARINGS, RECEIVED THE
TESTIMONY OF MORE THAN 40 WITNESSES RECORDED IN NEARLY 5,000 PAGES OF
TRANSCRIPT, EXAMINED MORE THAN 200 DOCUMENTARY EXHIBITS, AND MADE
INSPECTION TRIPS TO FOUR RAILROAD YARDS IN THE CHICAGO AREA.  ITS AWARD
(FN6) WAS CONCURRED IN BY THE TWO CARRIER MEMBERS AND DISSENTED FROM BY
THE LABOR MEMBERS.  (FN7)  THE OPINION OF THE NEUTRAL MEMBERS OF THE
BOARD DETAILS THE CONCLUSIONS THE PANEL REACHED.  IT STATES, AS TO THE
QUESTION OF FIREMEN, THAT: 

"ALTHOUGH WE THINK IT CLEAR THAT FIREMEN ARE PRESENTLY PERFORMING
USEFUL SERVICES, WE AGREE WITH THE (PRESIDENTIAL RAILROAD) COMMISSION
'THAT FIREMEN-HELPERS ARE NOT SO ESSENTIAL FOR THE SAFE AND EFFICIENT
OPERATION OF ROAD FREIGHT AND YARD DIESELS THAT THERE SHOULD CONTINUE
TO BE EITHER A NATIONAL RULE OR LOCAL RULES REQUIRING THEIR ASSIGNMENT
ON ALL SUCH DIESELS.'"  (FN8) 

THE BOARD FOUND, IN RESPECT TO THE OTHER MEMBERS OF THE TRAIN CREW,
THAT "THE CONSIST OF CREWS NECESSARY TO ASSURE SAFETY AND TO PREVENT
UNDUE WORKLOADS MUST BE DETERMINED PRIMARILY BY LOCAL CONDITIONS.  A
NATIONAL PRESCRIPTION OF CREW SIZE WOULD BE WHOLLY UNREALISTIC."  THE
BOARD ESTABLISHED PROCEDURES FOR LOCAL ARBITRATION OF THESE ISSUES. 
AND, THE BOARD ADDED: 

"IT IS CLEAR FROM THE EVIDENCE BEFORE US THAT THE MYRIAD OF LOCAL
ARRANGEMENTS HAS LED TO NUMEROUS INCONSISTENCIES IN THE MANNING OF
CREWS.  IT IS EQUALLY CLEAR THAT SOME OF THE EXISTING RULES,
ORIGINATING AS THEY DID MORE THAN A HALF-CENTURY AGO, ARE ANACHRONISTIC
AND DO NOT REFLECT THE PRESENT STATE OF RAILROAD TECHNOLOGY AND
OPERATING CONDITIONS." 

THE BOARD'S CONCERN WITH SAFETY IS APPARENT FROM A READING OF THE
NEUTRAL MEMBERS' OPINION.  AS THAT OPINION PUTS IT: 

"IT MAY BE FAIRLY STATED THAT CONCERN WITH SAFETY HAS PERVADED THIS
ENTIRE PROCEEDING.  IT WAS APPARENT IN THE PRESENTATIONS AND ARGUMENTS
BY ALL THE ORGANIZATIONS AND BY THE CARRIERS, AND WAS FURTHER
EMPHASIZED BY THE INQUIRIES WHICH MEMBERS OF THE BOARD DIRECTED TO
WITNESSES AND COUNSEL." 

WE ARE IN NO POSITION, OF COURSE, TO PASS JUDGMENT ON THE WORK OF THE
ARBITRATION BOARD, NOR IS IT OUR FUNCTION TO DO  SO. BUT IT IS APPARENT
THAT THIS PANEL HAD THE POWER AND THE TOOLS TO RESOLVE THE
CONTROVERSY.  ITS AWARD CONSTITUTES A NATIONAL SOLUTION TO THE QUESTION
OF FIREMEN AND ESTABLISHES THE PROCEDURES, ALREADY UTILIZED IN RESPECT
TO THESE RAILROADS OPERATING IN ARKANSAS, FOR RESOLUTION OF THE CREW
CONSIST ISSUE. 

I CONCLUDE THAT THE EFFECT OF PUBLIC LAW 88-108 AND THE AWARDS MADE
PURSUANT TO IT WAS TO SUPERSEDE STATE "FULL CREW" LEGISLATION.  OF
COURSE, WERE THE INTENT OF CONGRESS SHOWN TO BE OTHERWISE, THAT WOULD
BE DISPOSITIVE.  UNLIKE THE MAJORITY, I DO NOT THINK THAT THE BITS AND
PIECES OF LEGISLATIVE DEBATE CITED IN THE COURT'S OPINION CAN BE
REGARDED AS A CONTROLLING STATEMENT OF LEGISLATIVE INTENT.  IF
ANYTHING, THE LEGISLATIVE HISTORY OF PUBLIC LAW 88-108 SUGGESTS THAT
CONGRESS REFUSED TO ACCEPT THE SUGGESTION THAT, IF IT WISHED TO AVOID
THE SUPERSESSION OF STATE "FULL CREW" LAWS, IT SHOULD EXPRESSLY SAY
SO. 

THE MAJORITY POINTS TO STATEMENTS MADE BY CONGRESSMAN HARRIS,
CHAIRMAN OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, TO
THE EFFECT THAT THE BILL WOULD HAVE NO EFFECT ON STATE LAWS.  BUT WHEN
HE STATED HIS CONCLUSION ON THE FLOOR OF THE HOUSE, HE WAS IMMEDIATELY
CHALLENGED BY CONGRESSMAN SMITH, CHAIRMAN OF THE RULES COMMITTEE. 
UNDER THE CIRCUMSTANCES, IT SEEMS INAPPROPRIATE TO REGARD CONGRESSMAN
HARRIS' VIEWS AS WHOLLY AUTHORITATIVE.  THE TESTIMONY OF SECRETARY
WIRTZ, ALSO REFERRED TO BY THE COURT, WAS FOLLOWED BY A LEGAL
MEMORANDUM SUBMITTED BY THE SECRETARY.  THIS MEMORANDUM SUGGESTS THAT
THE INTERSTATE COMMERCE COMMISSION WOULD, UNDER THE PROPOSED
LEGISLATION, HAVE THE POWER TO SUPERSEDE STATE LEGISLATION, AND THAT TO
AVOID THIS THE COMMISSION MIGHT EXPRESSLY PROVIDE TO THE CONTRARY IN
ITS ORDERS.  (FN9) 

THE ABSENCE OF AN EXPRESS DISCLAIMER OF INTENT TO SUPERSEDE STATE LAWS
WAS CALLED TO THE ATTENTION OF CONGRESS.  TESTIFYING BEFORE THE HOUSE
COMMITTEE, SECRETARY WIRTZ DID SO.  (FN10)  THE GENERAL COUNSEL OF THE
INTERSTATE COMMERCE COMMISSION TOLD THE COMMITTEE THAT IF "THE CONGRESS
WANTS TO BE DOUBLY CERTAIN, FOR EXAMPLE, THAT NO SUCH LEGAL CONSEQUENCE
FOLLOWS IT COULD BE DONE" BY EXPRESSLY STATING THAT NO SUPERSESSION IS
INTENDED.  (FN11)  TO THIS THE CHAIRMAN RESPONDED: 

"I APPRECIATE YOUR VERY FRANK RESPONSE, BECAUSE I THINK IT HAS SORT
OF BEEN LEFT UP IN THE AIR AS TO WHAT THE COURTS MIGHT DO.  THERE HAS
BEEN SOME EXPRESSION AS TO WHAT IS INTENDED AND WHAT SOME MIGHT HAVE
THOUGHT BUT I THINK WE ALSO HAVE TO PROVIDE CLARITY WHEREVER IT IS
NECESSARY IN ORDER THAT THE COMMISSION MAY HAVE GUIDANCE IN ITS EFFORT
TO CARRY OUT THE RESPONSIBILITY SHOULD IT SO BE DIRECTED."  (FN12) 

THE COMMISSION'S GENERAL COUNSEL TESTIFIED TO THE SAME EFFECT BEFORE
THE SENATE COMMERCE COMMITTEE: 

"IF IT WERE DESIRED TO MAKE THAT ABSOLUTELY CERTAIN, IF THAT IS THE
DESIRE OF CONGRESS, IT CAN BE DONE BY JUST A PHRASE  ...  ."  (FN13) 

DESPITE THIS ADVICE, CONGRESS DID NOT INCLUDE A "SAVING" CLAUSE. 
(FN14) 

CONGRESS WAS FACED, AT THE TIME IT ENACTED PUBLIC LAW 88-108, WITH
MORE THAN THE THREAT OF A CRIPPLING STRIKE.  IT HAD BEFORE IT THE
RECOMMENDATIONS OF THE PRESIDENTIAL RAILROAD COMMISSION.  IT HAD BEEN
TOLD BY THE PRESIDENT OF THE SERIOUSNESS OF THE PROBLEM OF
TECHNOLOGICAL UNEMPLOYMENT ARISING FROM AUTOMATION.  CONGRESS RESPONDED
BY ESTABLISHING A PROCEDURE FOR RESOLUTION OF THE RAILROAD INDUSTRY'S
PRESSING ECONOMIC PROBLEM WITH AMPLE CONSIDERATION OF THE "SAFETY"
ISSUE.  IT IS INCONCEIVABLE THAT CONGRESS INTENDED TO SOLVE ONLY PART
OF THE PROBLEM WHEN IT DIRECTED THE ARBITRATION BOARD TO MAKE A BINDING
AWARD WHICH "SHALL CONSTITUTE A COMPLETE AND FINAL DISPOSITION OF THE
...  ISSUES." 

IN SUM, I AGREE WITH DISTRICT COURT THAT, "THERE IS NOTHING IN THE
ACT ITSELF OR IN THE HISTORY THAT INDICATES THAT THE CONGRESS INTENDED
TO RESOLVE THIS PROBLEM OF NATIONAL MAGNITUDE BY LEGISLATION THAT WOULD
BE EFFECTIVE IN ONLY SOME 30 STATES THAT DO NOT REGULATE CREW CONSISTS
BY LAW OR ADMINISTRATIVE REGULATION."  239 F. SUPP. 1, 23. 

ALTHOUGH AUTOMATION WAS A PRIME CONCERN OF THE PRESIDENT AND THE
CONGRESS, THE COURT HOLDS THAT THE LAWMAKERS CLOAKED THEIR CONCERN IN
SUCH WEASEL-LIKE WORDS AS NOT TO REACH THE ROOTS OF THE PROBLEM.  WITH
ALL RESPECT, I DISSENT. 

FN1  EXECUTIVE ORDER NO. 10891, NOV. 1, 1960. 

FN2  REPORT OF THE PRESIDENTIAL RAILROAD COMMISSION (1962), AT P.
64. 

FN3  THE NATIONAL AWARD PROVIDED FOR THE ELIMINATION OF 90% OF THE
FIREMEN'S JOBS IN EACH LOCAL SENIORITY DISTRICT, EXCEPT THAT FIREMEN
WOULD IN ALL CASES BE REQUIRED ON YARD LOCOMOTIVES LACKING A "DEAD-MAN"
CONTROL.  IN ADDITION, JOBS HAD TO BE MADE AVAILABLE TO FIREMEN
RETAINED IN SERVICE PURSUANT TO THE EMPLOYMENT PROTECTIVE PROVISIONS OF
THE AWARD WHICH, IN GENERAL, PROVIDED THAT ANY FIREMAN WITH 10 YEARS'
SENIORITY HAD TO BE RETAINED EITHER AS A FIREMAN OR AN ENGINEER. 
FIREMEN WITH BETWEEN TWO AND 10 YEARS' SENIORITY HAD TO BE RETAINED IN
ENGINE SERVICE OR OFFERED A COMPARABLE POSITION. 

AS FOR BRAKEMEN AND SWITCHMEN, THE AWARD ESTABLISHED PROCEDURES FOR
BINDING LOCAL ARBITRATION WHEREBY THE NUMBER OF OTHER CREW MEMBERS
MIGHT BE FIXED ON A LOCAL BASIS, SUBJECT TO CERTAIN EMPLOYMENT
PROTECTIVE CONDITIONS ESTABLISHED BY THE NATIONAL BOARD.  THE
APPLICABLE LOCAL AWARDS FOR ARKANSAS RAILROAD OPERATIONS PROVIDE FOR
TWO BRAKEMEN ON MAIN-LINE OPERATIONS AND ONE BRAKEMAN ON BRANCH-LINE
OPERATIONS.  IN SWITCHING OPERATIONS, THE LOCAL AWARDS PROVIDE, WITH
CERTAIN EXCEPTIONS, FOR ONE HELPER. 

FN4  THUS ARKANSAS LAW REQUIRES A FIREMAN ON EVERY TRAIN, WITH
CERTAIN EXCEPTIONS, WHILE THE ARBITRATION AWARD PERMITS ABOLITION OF
90% OF THE FIREMEN'S POSITIONS.  ARKANSAS REQUIRES THREE BRAKEMEN WHILE
THE ARBITRATION AWARD REQUIRES NO MORE THAN TWO.  SIMILAR CONFLICTS
APPEAR IN RESPECT TO THE YARD OPERATIONS. 

FN5  THE CHAIRMAN OF THE BOARD WAS RALPH T. SEWARD.  THE OTHER TWO
NEUTRAL MEMBERS WERE BENJAMIN AARON AND JAMES J. HEALY.  REPRESENTING
THE CARRIERS WERE GUY W. KNIGHT AND J. E. WOLFE.  REPRESENTING THE
LABOR ORGANIZATIONS WERE H. E. GILBERT AND R. H. MCDONALD. 

FN6  SEE NOTE 3, SUPRA. 

FN7  THE CARRIER MEMBERS, WHILE "DISAPPOINTED WITH CERTAIN OF THE
PROVISIONS" OF THE AWARD, NOTED THE "CARE AND DILIGENCE" WHICH THE
BOARD HAD DISPLAYED IN REACHING ITS DECISION.  THE LABOR MEMBERS
CONTENDED THAT THE BOARD HAD NOT BEEN TRUE TO THE CONGRESSIONAL COMMAND
AND THAT ITS CONCLUSIONS WERE ERRONEOUS. 

FN8  THE OPINION STATES THAT THE "LOOKOUT FUNCTION PRESENTLY ASSIGNED
TO THE FIREMAN IS ALSO PERFORMED BY THE HEAD BRAKEMAN IN ROAD FREIGHT
SERVICE AND BY ALL MEMBERS OF THE TRAIN CREW IN YARD SERVICE.  IN THE
GREAT MAJORITY OF CASES THE LACK OF A FIREMAN TO PERFORM THE RELATED
FUNCTIONS OF LOOKOUT AND SIGNAL PASSING WILL NOT ENDANGER SAFETY OR
IMPAIR EFFICIENCY BECAUSE THESE FUNCTIONS CAN BE, AS THEY ARE NOW,
PERFORMED BY OTHER CREW MEMBERS." 

THE MECHANICAL DUTIES PERFORMED BY FIREMEN, THE BOARD FOUND, COULD IN
LARGE PART "BE PERFORMED BY THE ENGINEER WHILE THE LOCOMOTIVE IS IN
SERVICE AND BY SHOP MAINTENANCE PERSONNEL AT OTHER TIMES." 

FINALLY, THE BOARD FOUND THAT RELIEF OF THE ENGINEER BY THE FIREMAN
IS OF CRITICAL IMPORTANCE ONLY IN THE EVENT OF SUDDEN INCAPACITATION. 
"IN ROAD FREIGHT SERVICE THE USUAL PRESENCE OF THE HEAD BRAKEMAN IN THE
CAB OBVIATES THE NEED FOR A FIREMAN IN SUCH AN EMERGENCY."    FN9  SEE
HEARINGS BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON
H.J. RES.  NO. 565, 88TH CONG., 1ST SESS., 112-113.  THE REFERENCE TO
THE INTERSTATE COMMERCE COMMISSION WAS MADE, OF COURSE, BECAUSE AT THAT
STAGE CONGRESS WAS CONSIDERING THE LEGISLATION IN THE FORM PROPOSED BY
THE PRESIDENT, WHICH CONTEMPLATED RESOLUTION OF THE DISPUTE BY THE
COMMISSION. 

THE REPORT OF THE COMMITTEE REFLECTS THE VIEW OF ITS CHAIRMAN AND
STATES THAT STATE FULL-CREW LAWS WOULD NOT BE SUPERSEDED.  H.R. REP.
NO. 713, 88TH CONG., 1ST SESS., 14.  IT BEARS REPEATING THAT THIS
POSITION WAS CHALLENGED BY CONGRESSMAN SMITH ON THE FLOOR OF THE
HOUSE.  AND IT IS ALSO SIGNIFICANT THAT THE REPORT OF THE SENATE
COMMERCE COMMITTEE (S. REP. NO. 459, 88TH CONG., 1ST SESS.) MAKES NO
MENTION OF THE PRE-EMPTION QUESTION, DESPITE REFERENCES TO IT IN THE
COMMITTEE'S HEARINGS.  SEE NOTE 13 AND ACCOMPANYING TEXT AND NOTE 14,
INFRA. 

FN10  SEE HEARINGS BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.J. RES.  565, 88TH CONG., 1ST SESS., 111. 

FN11  ID., AT P. 614. 

FN12  IBID. 

FN13  HEARINGS BEFORE SENATE COMMITTEE ON COMMERCE ON S.J. RES. NO.
102, 88TH CONG., 1ST SESS., 401. 

FN14  THE POSSIBILITY THAT THE BILL WOULD RESULT IN THE SUPERSESSION
OF STATE LAWS WAS NOTED AT OTHER POINTS IN THE SENATE COMMERCE
COMMITTEE HEARINGS.  A REPRESENTATIVE OF THE BROTHERHOOD OF LOCOMOTIVE
ENGINEERS TESTIFIED: 

"MR. DAVIDSON.  MR. CHAIRMAN, I WAS JUST HANDED A NOTE THAT I WOULD
LIKE TO READ INTO THE RECORD, IF I MAY. 

"SENATOR PASTORE.  ALL RIGHT. 

"MR. DAVIDSON.  GENERAL COUNSEL FOR THE ICC, AT THE HOUSE HEARING
TODAY, STATED IF THIS BILL PASSES, THE COMMISSION WOULD HAVE
JURISDICTION OVER STATES' MINIMUM CREW BILLS. 

"SENATOR PASTORE.  I DON'T WANT TO PASS ANY JUDGMENT ON THAT.  YOU
HAVE READ IT INTO THE RECORD.  I WILL CHECK THAT."  ID., AT 478. 

THE GENERAL COUNSEL OF THE RAILWAY LABOR EXECUTIVES' ASSOCIATION
TESTIFIED:  "I CERTAINLY VISUALIZE THAT AS A BARE MINIMUM THE CARRIERS
WILL CONTEND THAT THE EFFECT OF ORDERS OF THE COMMISSION AUTHORIZING
DECREASES IN CREW CONSIST - EITHER OF ENGINECREW OR TRAINCREW - WOULD
OPERATE TO OVERRULE FULL CREW LAWS IN THOSE STATES THAT HAVE THEM. 
PERHAPS THAT EXPLAINS THE ALACRITY WITH WHICH THE CARRIERS EMBRACED THE
PRESIDENT'S RECOMMENDATION AND ENDORSED IT."  ID., AT 629. 

AS STATED BY THE DISTRICT COURT:  "A COMPLETE REVIEW OF THE
LEGISLATIVE HISTORY WILL REVEAL THAT SOME MEMBERS OF CONGRESS THOUGHT
THAT THE LEGISLATION WOULD PRE-EMPT STATE CREW CONSIST LAWS, AND OTHERS
THOUGHT IT WOULD NOT.  IT IS PERFECTLY CLEAR THAT THE COMMITTEES IN
BOTH HOUSES HAD IT BROUGHT EFFECTIVELY TO THEIR ATTENTION THAT THE
LEGISLATION MIGHT HAVE A PRE-EMPTING EFFECT, AND IF SUCH PRE-EMPTION
WAS NOT THE DESIRE AND INTENTION OF THE CONGRESS, IT SHOULD SO
EXPRESSLY STATE IN THE BILL.  THERE WAS NO SUCH EXPRESSION ALTHOUGH THE
BILL WAS AMENDED IN MANY OTHER RESPECTS AFTER THE HEARINGS BEFORE BOTH
COMMITTEES HAD BEEN CONCLUDED."  239 F. SUPP., PP. 22-23. 
..END :















UNITED STATES V. WILSON & CO. 382 U.S. 454 


NO. 56.  DECIDED JANUARY 31, 1966.  - 335 F.2D 788, REMANDED. 


UNITED STATES ET AL. V. WILSON & CO., INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

THE JOINT MOTION OF COUNSEL TO REMAND IS GRANTED AND THE CASE IS
REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
IN ORDER TO PERMIT THE ENTRY OF A DECREE OF RESTITUTION IN ACCORDANCE
WITH THE AGREEMENT OF THE PARTIES. 
..END :















BECK V. MCLEOD 382 U.S. 454 


NO. 770.  DECIDED JANUARY 31, 1966.  - 240 F. SUPP. 708, AFFIRMED. 


BECK V. MCLEOD, ATTORNEY GENERAL OF SOUTH CAROLINA. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF SOUTH CAROLINA. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 
..END :


















RAINSBERGER V. NEVADA 382 U.S. 455 


NO. 368, MISC.  DECIDED JANUARY 31, 1966.  - 81 NEV. 92, 399 P.2D 129,
APPEAL DISMISSED. 


RAINSBERGER V. NEVADA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :



















NAWROCKI V. MICHIGAN 382 U.S. 455 


NO. 966, MISC.  DECIDED JANUARY 31, 1966.  - 376 MICH. 252, 136 N.W.2D
922, APPEAL DISMISSED AND CERTIORARI DENIED. 


NAWROCKI V. MICHIGAN. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PLATT V. MINNESOTA MINING & MANUFACTURING 382 U.S. 456 


NO. 274.  DECIDED JANUARY 31, 1966.  - CERTIORARI GRANTED; 345 F.2D 681,
VACATED AND REMANDED. 


PLATT, CHIEF JUDGE, U. S. DISTRICT COURT V. MINNESOTA MINING &
MANUFACTURING CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE SUGGESTION OF MOOTNESS FILED BY THE
SOLICITOR GENERAL AND UPON AN EXAMINATION OF THE ENTIRE RECORD, THE
PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT IS VACATED AND
THE CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE
MANDAMUS PROCEEDING AS MOOT. 
..END :











BANKS V. CALIFORNIA 382 U.S. 420 


NO. 87, MISC.  DECIDED JANUARY 24, 1966.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


BANKS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT, FOR FURTHER PROCEEDINGS IN LIGHT OF GRIFFIN V.
CALIFORNIA, 380 U.S. 609. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OF THIS MOTION
AND PETITION. 
..END :










ODELL V. DEPT. OF PUBLIC WELFARE OF WISCONSIN 382 U.S. 420 


NO. 896, MISC.  DECIDED JANUARY 24, 1966.  - APPEAL DISMISSED. 


ODELL V. STATE DEPARTMENT OF PUBLIC WELFARE OF WISCONSIN ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF WISCONSIN. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :


















PEW V. U.S. COAST GUARD 382 U.S. 421 


NO. 824, MISC.  DECIDED JANUARY 24, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


PEW V. COMMANDANT, U.S. COAST GUARD. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















ESCALERA V. PUERTO RICO SUPREME COURT 382 U.S. 421 


NO. 849, MISC.  DECIDED JANUARY 24, 1966.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


ESCALERA V. SUPREME COURT OF PUERTO RICO. 

APPEAL FROM THE SUPREME COURT OF PUERTO RICO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















C.&N.W. RY. CO. V. C.B.&Q.R.R. CO. 382 U.S. 422 


NO. 751.  DECIDED JANUARY 24, 1966.* - 242 F. SUPP. 414, AFFIRMED. 

*TOGETHER WITH NO. 752, INTERSTATE COMMERCE COMMISSION V. CHICAGO,
BURLINGTON & QUINCY RAILROAD CO. ET AL., ALSO ON APPEAL FROM THE SAME
COURT. 


CHICAGO & NORTH WESTERN RAILWAY CO. ET AL. V. CHICAGO, BURLINGTON &
QUINCY RAILROAD CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :










GIACCIO V. PENNSYLVANIA 382 U.S. 399 


NO. 47.  ARGUED DECEMBER 6, 1965.  - DECIDED JANUARY 19, 1966.  - 415
PA. 139, 202 A.2D 55, REVERSED AND REMANDED. 


APPELLANT WAS ACQUITTED FOLLOWING A JURY TRIAL ON A MISDEMEANOR
INDICTMENT.  COSTS WERE ASSESSED AGAINST HIM UNDER AN 1860 PENNSYLVANIA
STATUTE PERMITTING JURORS TO "DETERMINE, BY THEIR VERDICT, WHETHER THE
ACQUITTED DEFENDANT SHALL PAY THE COSTS," AND PROVIDING FOR HIS
COMMITMENT TO JAIL IN DEFAULT OF PAYMENT OR SECURITY.  THE JURY HAD
BEEN INSTRUCTED THAT IT COULD PLACE THE PROSECUTION COSTS ON APPELLANT
THOUGH FOUND GUILTLESS OF THE CHARGES IF NEVERTHELESS IT FOUND HIM
GUILTY OF "SOME MISCONDUCT" LESS THAN THAT CHARGED BUT WHICH HAD
BROUGHT ON THE PROSECUTION AND WARRANTED SOME PENALTY SHORT OF
CONVICTION.  THE TRIAL COURT UPHELD APPELLANT'S CONTENTION THAT THE
STATUTE VIOLATED DUE PROCESS REQUIREMENTS OF THE FOURTEENTH AMENDMENT. 
THE INTERMEDIATE APPELLATE COURT REVERSED THE TRIAL COURT AND WAS
SUSTAINED BY THE STATE SUPREME COURT.  HELD:  THE 1860 ACT VIOLATES THE
DUE PROCESS CLAUSE BECAUSE OF VAGUENESS AND THE ABSENCE OF ANY
STANDARDS THAT WOULD PREVENT ARBITRARY IMPOSITION OF COSTS.  PP. 402
405. 

(A)  REGARDLESS OF WHETHER THE ACT IS "PENAL" OR "CIVIL," IT MUST
MEET THE DUE PROCESS REQUIREMENTS OF THE FOURTEENTH AMENDMENT.  P.
402. 

(B)  THE ABSENCE OF ANY STATUTORY STANDARDS IS NOT CURED BY JUDICIAL
INTERPRETATIONS THAT ALLOW JURIES TO IMPOSE COSTS ON A DEFENDANT WHERE
THEY FIND THE DEFENDANT'S CONDUCT THOUGH NOT UNLAWFUL WAS
"REPREHENSIBLE" OR "IMPROPER" OR WHERE THE JURY FINDS THAT THE
DEFENDANT COMMITTED "SOME MISCONDUCT."  PP. 402-405. 

GIACCIO V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APPELLANT GIACCIO WAS INDICTED BY A PENNSYLVANIA GRAND JURY AND
CHARGED WITH TWO VIOLATIONS OF A STATE STATUTE WHICH MAKES IT A
MISDEMEANOR TO WANTONLY POINT OR DISCHARGE A FIREARM AT ANY OTHER
PERSON.  (FN1)  IN A TRIAL BEFORE A JUDGE AND JURY APPELLANT'S DEFENSE
WAS THAT THE FIREARM HE HAD DISCHARGED WAS A STARTER PISTOL WHICH ONLY
FIRED BLANKS.  THE JURY RETURNED A VERDICT OF NOT GUILTY ON EACH
CHARGE, BUT ACTING PURSUANT TO INSTRUCTIONS OF THE COURT GIVEN UNDER
AUTHORITY OF A PENNSYLVANIA STATUTE OF 1860, ASSESSED AGAINST APPELLANT
THE COURT COSTS OF ONE OF THE CHARGES (AMOUNTING TO $230.95).  THE ACT
OF 1860, SET OUT BELOW, (FN2) PROVIDES AMONG OTHER THINGS THAT: 

"  ...  IN ALL CASES OF ACQUITTALS BY THE PETIT JURY ON INDICTMENTS
FOR OFFENSES OTHER THAN FELONIES, THE JURY TRYING THE SAME SHALL
DETERMINE, BY THEIR VERDICT, WHETHER THE COUNTY, OR THE PROSECUTOR, OR
THE DEFENDANT SHALL PAY THE COSTS  ...  AND WHENEVER THE JURY SHALL
DETERMINE AS AFORESAID, THAT THE  ...  DEFENDANT SHALL PAY THE COSTS,
THE COURT IN WHICH THE SAID DETERMINATION SHALL BE MADE SHALL FORTHWITH
PASS SENTENCE TO THAT EFFECT, AND ORDER HIM TO BE COMMITTED TO THE JAIL
OF THE COUNTY UNTIL THE COSTS ARE PAID, UNLESS HE GIVE SECURITY TO PAY
THE SAME WITHIN TEN DAYS." 

APPELLANT MADE TIMELY OBJECTIONS TO THE VALIDITY OF THIS STATUTE ON
SEVERAL GROUNDS, (FN3) INCLUDING AN OBJECTION THAT THE STATUTE IS
UNCONSTITUTIONALLY VAGUE IN VIOLATION OF THE FOURTEENTH AMENDMENT'S DUE
PROCESS CLAUSE BECAUSE IT AUTHORIZES JURIES TO ASSESS COSTS AGAINST
ACQUITTED DEFENDANTS, WITH A THREAT OF IMPRISONMENT UNTIL THE COSTS ARE
PAID, WITHOUT PRESCRIBING DEFINITE STANDARDS TO GOVERN THE JURY'S
DETERMINATION.  THE TRIAL COURT HELD THE 1860 ACT VOID FOR VAGUENESS IN
VIOLATION OF DUE PROCESS, SET ASIDE THE JURY'S VERDICT IMPOSING COSTS
ON THE APPELLANT, AND VACATED THE "SENTENCE IMPOSED UPON DEFENDANT THAT
HE PAY SAID COSTS FORTHWITH OR GIVE SECURITY TO PAY THE SAME WITHIN TEN
(10) DAYS AND TO STAND COMMITTED UNTIL HE HAD COMPLIED THEREWITH." 
(FN4) THE SUPERIOR COURT OF PENNSYLVANIA, ONE JUDGE DISSENTING,
REVERSED THE TRIAL COURT CLOSING ITS OPINION THIS WAY: 

"WE CAN FIND NO REASON THAT WOULD JUSTIFY OUR HOLDING IT (THE 1860
ACT) UNCONSTITUTIONAL. 

"ORDER REVERSED, SENTENCE REINSTATED."  (FN5) 

THE STATE SUPREME COURT, AGAIN WITH ONE JUDGE DISSENTING, AGREED WITH
THE SUPERIOR COURT AND AFFIRMED ITS JUDGMENT.  (FN6)  THIS LEFT
APPELLANT SUBJECT TO THE JUDGMENT FOR COSTS AND THE "SENTENCE" TO
ENFORCE PAYMENT.  WE NOTED JURISDICTION TO CONSIDER THE QUESTION RAISED
CONCERNING VAGUENESS AND ABSENCE OF PROPER STANDARDS IN THE 1860 ACT. 
381 U.S. 923.  WE AGREE WITH THE TRIAL COURT AND THE DISSENTING JUDGES
IN THE APPELLATE COURTS BELOW THAT THE 1860 ACT IS INVALID UNDER THE
DUE PROCESS CLAUSE BECAUSE OF VAGUENESS AND THE ABSENCE OF ANY
STANDARDS SUFFICIENT TO ENABLE DEFENDANTS TO PROTECT THEMSELVES AGAINST
ARBITRARY AND DISCRIMINATORY IMPOSITIONS OF COSTS. 

1.  IN HOLDING THAT THE 1860 ACT WAS NOT UNCONSTITUTIONALLY VAGUE THE
STATE SUPERIOR AND SUPREME COURTS RESTED LARGELY ON THE DECLARATION
THAT THE ACT "IS NOT A PENAL STATUTE" BUT SIMPLY PROVIDES MACHINERY FOR
THE COLLECTION OF COSTS OF A "CIVIL CHARACTER" ANALOGOUS TO IMPOSING
COSTS IN CIVIL CASES "NOT AS A PENALTY BUT RATHER AS COMPENSATION TO A
LITIGANT FOR EXPENSES  ...  ."  BUT ADMISSION OF AN ANALOGY BETWEEN THE
COLLECTION OF CIVIL COSTS AND COLLECTION OF COSTS HERE DOES NOT GO FAR
TOWARDS SETTLING THE CONSTITUTIONAL QUESTION BEFORE US.  WHATEVER LABEL
BE GIVEN THE 1860 ACT, THERE IS NO DOUBT THAT IT PROVIDES THE STATE
WITH A PROCEDURE FOR DEPRIVING AN ACQUITTED DEFENDANT OF HIS LIBERTY
AND HIS PROPERTY.  BOTH LIBERTY AND PROPERTY ARE SPECIFICALLY PROTECTED
BY THE FOURTEENTH AMENDMENT AGAINST ANY STATE DEPRIVATION WHICH DOES
NOT MEET THE STANDARDS OF DUE PROCESS, AND THIS PROTECTION IS NOT TO BE
AVOIDED BY THE SIMPLE LABEL A STATE CHOOSES TO FASTEN UPON ITS CONDUCT
OR ITS STATUTE.  SO HERE THIS STATE ACT WHETHER LABELED "PENAL" OR NOT
MUST MEET THE CHALLENGE THAT IT IS UNCONSTITUTIONALLY VAGUE. 

2.  IT IS ESTABLISHED THAT A LAW FAILS TO MEET THE REQUIREMENTS OF
THE DUE PROCESS CLAUSE IF IT IS SO VAGUE AND STANDARDLESS THAT IT
LEAVES THE PUBLIC UNCERTAIN AS TO THE CONDUCT IT PROHIBITS OR LEAVES
JUDGES AND JURORS FREE TO DECIDE, WITHOUT ANY LEGALLY FIXED STANDARDS,
WHAT IS PROHIBITED AND WHAT IS NOT IN EACH PARTICULAR CASE.  SEE, E.G.,
LANZETTA V. NEW JERSEY, 306 U.S. 451; BAGGETT V. BULLITT, 377 U.S.
360.  THIS 1860 PENNSYLVANIA ACT CONTAINS NO STANDARDS AT ALL, NOR DOES
IT PLACE ANY CONDITIONS OF ANY KIND UPON THE JURY'S POWER TO IMPOSE
COSTS UPON A DEFENDANT WHO HAS BEEN FOUND BY THE JURY TO BE NOT GUILTY
OF A CRIME CHARGED AGAINST HIM.  THE ACT, WITHOUT IMPOSING A SINGLE
CONDITION, LIMITATION OR CONTINGENCY ON A JURY WHICH HAS ACQUITTED A
DEFENDANT SIMPLY SAYS THE JURORS "SHALL DETERMINE, BY THEIR VERDICT,
WHETHER  ...  THE DEFENDANT, SHALL PAY THE COSTS" WHEREUPON THE TRIAL
JUDGE IS TOLD HE "SHALL FORTHWITH PASS SENTENCE TO THAT EFFECT, AND
ORDER HIM (DEFENDANT) TO BE COMMITTED TO THE JAIL OF THE COUNTY" THERE
TO REMAIN UNTIL HE EITHER PAYS OR GIVES SECURITY FOR THE COSTS. 
CERTAINLY ONE OF THE BASIC PURPOSES OF THE DUE PROCESS CLAUSE HAS
ALWAYS BEEN TO PROTECT A PERSON AGAINST HAVING THE GOVERNMENT IMPOSE
BURDENS UPON HIM EXCEPT IN ACCORDANCE WITH THE VALID LAWS OF THE LAND. 
IMPLICIT IN THIS CONSTITUTIONAL SAFEGUARD IS THE PREMISE THAT THE LAW
MUST BE ONE THAT CARRIES AN UNDERSTANDABLE MEANING WITH LEGAL STANDARDS
THAT COURTS MUST ENFORCE.  THIS STATE ACT AS WRITTEN DOES NOT EVEN
BEGIN TO MEET THIS CONSTITUTIONAL REQUIREMENT. 

3.  THE STATE CONTENDS THAT EVEN IF THE ACT WOULD HAVE BEEN VOID FOR
VAGUENESS AS IT WAS ORIGINALLY WRITTEN, SUBSEQUENT STATE COURT
INTERPRETATIONS HAVE PROVIDED STANDARDS AND GUIDES THAT CURE THE FORMER
CONSTITUTIONAL DEFICIENCIES.  WE DO NOT AGREE.  ALL OF THE SO-CALLED
COURT-CREATED CONDITIONS AND STANDARDS STILL LEAVE TO THE JURY SUCH
BROAD AND UNLIMITED POWER IN IMPOSING COSTS ON ACQUITTED DEFENDANTS
THAT THE JURORS MUST MAKE DETERMINATIONS OF THE CRUCIAL ISSUE UPON
THEIR OWN NOTIONS OF WHAT THE LAW SHOULD BE INSTEAD OF WHAT IT IS.
PENNSYLVANIA DECISIONS HAVE FROM TIME TO TIME SAID EXPRESSLY, OR AT
LEAST IMPLIED, THAT JURIES HAVING FOUND A DEFENDANT NOT GUILTY MAY
IMPOSE COSTS UPON HIM IF THEY FIND THAT HIS CONDUCT, THOUGH NOT
UNLAWFUL, IS "REPREHENSIBLE IN SOME RESPECT," "IMPROPER," OUTRAGEOUS TO
"MORALITY AND JUSTICE," OR THAT HIS CONDUCT WAS "NOT REPREHENSIBLE
ENOUGH FOR A CRIMINAL CONVICTION BUT SUFFICIENTLY REPREHENSIBLE TO
DESERVE AN EQUAL DISTRIBUTION OF COSTS" OR THAT THOUGH ACQUITTED "HIS
INNOCENCE MAY HAVE BEEN DOUBTFUL."  (FN7) IN THIS CASE THE TRIAL JUDGE
INSTRUCTED THE JURY THAT IT MIGHT PLACE THE COSTS OF PROSECUTION ON THE
APPELLANT, THOUGH FOUND NOT GUILTY OF THE CRIME CHARGED, IF THE JURY
FOUND THAT "HE HAS BEEN GUILTY OF SOME MISCONDUCT LESS THAN THE OFFENSE
WHICH IS CHARGED BUT NEVERTHELESS MISCONDUCT OF SOME KIND AS A RESULT
OF WHICH HE SHOULD BE REQUIRED TO PAY SOME PENALTY SHORT OF CONVICTION
AND  ...  HIS MISCONDUCT HAS GIVEN RISE TO THE PROSECUTION." 

IT MAY POSSIBLY BE THAT THE TRIAL COURT'S CHARGE COMES NEARER TO
GIVING A GUIDE TO THE JURY THAN THOSE THAT PRECEDED IT, BUT IT STILL
FALLS SHORT OF THE KIND OF LEGAL STANDARD DUE PROCESS REQUIRES.   AT
BEST IT ONLY TOLD THE JURY THAT IF IT FOUND APPELLANT GUILTY OF "SOME
MISCONDUCT" LESS THAN THAT CHARGED AGAINST HIM, IT WAS AUTHORIZED BY
LAW TO SADDLE HIM WITH THE STATE'S COSTS IN ITS UNSUCCESSFUL
PROSECUTION.  IT WOULD BE DIFFICULT IF NOT IMPOSSIBLE FOR A PERSON TO
PREPARE A DEFENSE AGAINST SUCH GENERAL ABSTRACT CHARGES AS
"MISCONDUCT," OR "REPREHENSIBLE CONDUCT."  IF USED IN A STATUTE WHICH
IMPOSED FORFEITURES, PUNISHMENTS OR JUDGMENTS FOR COSTS, SUCH LOOSE AND
UNLIMITING TERMS WOULD CERTAINLY CAUSE THE STATUTE TO FAIL TO MEASURE
UP TO THE REQUIREMENTS OF THE DUE PROCESS CLAUSE.  AND THESE TERMS ARE
NO MORE EFFECTIVE TO MAKE A STATUTE VALID WHICH STANDING ALONE IS VOID
FOR VAGUENESS. 

WE HOLD THAT THE 1860 ACT IS CONSTITUTIONALLY INVALID BOTH AS WRITTEN
AND AS EXPLAINED BY THE PENNSYLVANIA COURTS.  (FN8)  THE JUDGMENT
AGAINST APPELLANT IS REVERSED AND THE CASE IS REMANDED TO THE STATE
SUPREME COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  ACT OF JUNE 24, 1939, PUB. L. 872, SEC. 716, PA. STAT. ANN.,
TIT. 18, SEC. 4716. 

FN2  ACT OF MARCH 31, 1860, PUB. L. 427, SEC. 62, PA. STAT. ANN.,
TIT. 19, SEC. 1222, PROVIDES: 

"IN ALL PROSECUTIONS, CASES OF FELONY EXCEPTED, IF THE BILL OF
INDICTMENT SHALL BE RETURNED IGNORAMUS, THE GRAND JURY RETURNING THE
SAME SHALL DECIDE AND CERTIFY ON SUCH BILL WHETHER THE COUNTY OR THE
PROSECUTOR SHALL PAY THE COSTS OF PROSECUTION; AND IN ALL CASES OF
ACQUITTALS BY THE PETIT JURY ON INDICTMENTS FOR THE OFFENSES AFORESAID,
THE JURY TRYING THE SAME SHALL DETERMINE, BY THEIR VERDICT, WHETHER THE
COUNTY, OR THE PROSECUTOR, OR THE DEFENDANT SHALL PAY THE COSTS, OR
WHETHER THE SAME SHALL BE APPORTIONED BETWEEN THE PROSECUTOR AND THE
DEFENDANT, AND IN WHAT PROPORTIONS; AND THE JURY, GRAND OR PETIT, SO
DETERMINING, IN CASE THEY DIRECT THE PROSECUTOR TO PAY THE COSTS OR ANY
PORTION THEREOF, SHALL NAME HIM IN THEIR RETURN OR VERDICT; AND
WHENEVER THE JURY SHALL DETERMINE AS AFORESAID, THAT THE PROSECUTOR OR
DEFENDANT SHALL PAY THE COSTS, THE COURT IN WHICH THE SAID
DETERMINATION SHALL BE MADE SHALL FORTHWITH PASS SENTENCE TO THAT
EFFECT, AND ORDER HIM TO BE COMMITTED TO THE JAIL OF THE COUNTY UNTIL
THE COSTS ARE PAID, UNLESS HE GIVE SECURITY TO PAY THE SAME WITHIN TEN
DAYS." 

FN3  ONE OBJECTION WAS THAT THE ACT VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE IT DISCRIMINATES AGAINST
DEFENDANTS IN MISDEMEANOR CASES BY IMPOSING GREATER BURDENS UPON THEM
THAN UPON DEFENDANTS IN FELONY CASES AND CASES INVOLVING SUMMARY
OFFENSES.  WE DO NOT REACH OR DECIDE THIS QUESTION. 

FN4  30 PA. D.&C.2D 436 (Q.S. CHESTER, 1963). 

FN5  202 PA. SUPER.  294, 310, 196 A.2D 189, 197. 

FN6  415 P. 139, 202 A.2D 55. 

FN7  THE FOREGOING QUOTATIONS APPEAR IN A NUMBER OF PENNSYLVANIA
CASES INCLUDING COMMONWEALTH V. TILGHMAN, 4 S.&R. 127; BALDWIN V.
COMMONWEALTH, 26 PA. 171; COMMONWEALTH V. DALY, 11 PA.  DIST. 527 (Q.S.
CLEARFIELD); AND IN THE OPINION OF THE SUPERIOR COURT IN THIS CASE, 202
PA.  SUPER.  294, 196 A.2D 189. 

FN8  IN SO HOLDING WE INTEND TO CAST NO DOUBT WHATEVER ON THE
CONSTITUTIONALITY OF THE SETTLED PRACTICE OF MANY STATES TO LEAVE TO
JURIES FINDING DEFENDANTS GUILTY OF A CRIME THE POWER TO FIX PUNISHMENT
WITHIN LEGALLY PRESCRIBED LIMITS. 

MR. JUSTICE STEWART, CONCURRING. 

I CONCUR IN THE COURT'S DETERMINATION THAT THE PENNSYLVANIA STATUTE
HERE IN QUESTION CANNOT BE SQUARED WITH THE STANDARDS OF THE FOURTEENTH
AMENDMENT, BUT FOR REASONS SOMEWHAT DIFFERENT FROM THOSE UPON WHICH THE
COURT RELIES.  IT SEEMS TO ME THAT, DESPITE THE COURT'S DISCLAIMER,*
MUCH OF THE REASONING IN ITS OPINION SERVES TO CAST GRAVE
CONSTITUTIONAL DOUBT UPON THE SETTLED PRACTICE OF MANY STATES TO LEAVE
TO THE UNGUIDED DISCRETION OF A JURY THE NATURE AND DEGREE OF
PUNISHMENT TO BE IMPOSED UPON A PERSON CONVICTED OF A CRIMINAL
OFFENSE.  THOUGH I HAVE SERIOUS QUESTIONS ABOUT THE WISDOM OF THAT
PRACTICE, ITS CONSTITUTIONALITY IS QUITE A DIFFERENT MATTER.  IN THE
PRESENT CASE IT IS ENOUGH FOR ME THAT PENNSYLANIA ALLOWS A JURY TO
PUNISH A DEFENDANT AFTER FINDING HIM NOT GUILTY.  THAT, I THINK,
VIOLATES THE MOST RUDIMENTARY CONCEPT OF DUE PROCESS OF LAW. 

*SEE N. 8, ANTE. 

MR. JUSTICE FORTAS, CONCURRING. 

IN MY OPINION, THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
DOES NOT PERMIT A STATE TO IMPOSE A PENALTY OR COSTS UPON A DEFENDANT
WHOM THE JURY HAS FOUND NOT GUILTY OF ANY OFFENSE WITH WHICH HE HAS
BEEN CHARGED. 
..END :




TEHAN V. SHOTT 382 U.S. 406 


NO. 52.  ARGUED NOVEMBER 18, 1965.  - DECIDED JANUARY 19, 1966.  - 337
F.2D 990, VACATED AND REMANDED. 


IN 1961 RESPONDENT WAS TRIED AND CONVICTED IN AN OHIO COURT FOR
VIOLATION OF THE OHIO SECURITIES ACT.  RESPONDENT HAD NOT TAKEN THE
STAND AND THE PROSECUTOR COMMENTED EXTENSIVELY, AS PERMITTED BY OHIO
LAW, ON HIS FAILURE TO TESTIFY.  THE CONVICTION WAS AFFIRMED BY AN OHIO
COURT OF APPEALS, THE STATE SUPREME COURT DECLINED TO REVIEW, AND THIS
COURT DISMISSED AN APPEAL AND DENIED CERTIORARI IN 1963.  SHORTLY
THEREAFTER RESPONDENT SOUGHT A WRIT OF HABEAS CORPUS, ALLEGING VARIOUS
CONSTITUTIONAL VIOLATIONS AT HIS TRIAL.  THE FEDERAL DISTRICT COURT
DISMISSED THE PETITION, BUT THE COURT OF APPEALS REVERSED, NOTING THAT
ON THE DAY PRECEDING ORAL ARGUMENT OF THE APPEAL THE SUPREME COURT IN
MALLOY V. HOGAN, 378 U.S. 1, HELD THAT THE FIFTH AMENDMENT'S FREEDOM
FROM SELF-INCRIMINATION IS ALSO PROTECTED BY THE FOURTEENTH AGAINST
STATE ABRIDGMENT, AND REASONING THAT THE PROTECTION INCLUDES FREEDOM
FROM COMMENT ON FAILURE TO TESTIFY.  IN GRIFFIN V. CALIFORNIA, 380 U.S.
609, THIS COURT HELD THAT ADVERSE COMMENT ON A DEFENDANT'S FAILURE TO
TESTIFY IN A STATE CRIMINAL TRIAL VIOLATES THE PRIVILEGE AGAINST SELF
INCRIMINATION, AND THE PARTIES HERE WERE REQUESTED TO BRIEF AND ARGUE
THE QUESTION OF THE RETROACTIVITY OF THAT DOCTRINE.  HELD:  THE
DOCTRINE OF GRIFFIN V. CALIFORNIA WILL NOT BE APPLIED RETROSPECTIVELY. 
LINKLETTER V. WALKER, 381 U.S. 618, FOLLOWED.  PP. 409-419. 

TEHAN, SHERIFF V. UNITED STATES EX REL. SHOTT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1964 THE COURT HELD THAT THE FIFTH AMENDMENT'S PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION "IS ALSO PROTECTED BY THE FOURTEENTH
AMENDMENT AGAINST ABRIDGMENT BY THE STATES."  MALLOY V. HOGAN, 378 U.S.
1, 6.  IN GRIFFIN V. CALIFORNIA, DECIDED ON APRIL 28, 1965, THE COURT
HELD THAT ADVERSE COMMENT BY A PROSECUTOR OR TRIAL JUDGE UPON A
DEFENDANT'S FAILURE TO TESTIFY IN A STATE CRIMINAL TRIAL VIOLATES THE
FEDERAL PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION, BECAUSE SUCH
COMMENT "CUTS DOWN ON THE PRIVILEGE BY MAKING ITS ASSERTION COSTLY." 
380 U.S. 609, 614.  THE QUESTION BEFORE US NOW IS WHETHER THE RULE OF
GRIFFIN V. CALIFORNIA IS TO BE GIVEN RETROSPECTIVE APPLICATION. 

                                 I. 

IN THE SUMMER OF 1961 THE RESPONDENT WAS BROUGHT TO TRIAL BEFORE A
JURY IN AN OHIO COURT UPON AN INDICTMENT CHARGING VIOLATIONS OF THE
OHIO SECURITIES ACT.  (FN1)  THE RESPONDENT DID NOT TESTIFY IN HIS OWN
BEHALF, AND THE PROSECUTING ATTORNEY IN HIS SUMMATION TO THE JURY
COMMENTED EXTENSIVELY UPON THAT FACT.  (FN2)  THE JURY FOUND THE
RESPONDENT GUILTY, THE JUDGMENT OF CONVICTION WAS AFFIRMED BY AN OHIO
COURT OF APPEALS, AND THE SUPREME COURT OF OHIO DECLINED FURTHER
REVIEW.  173 OHIO ST. 542, 184 N.E.2D 213.  THE RESPONDENT THEN BROUGHT
HIS CASE TO THIS COURT, CLAIMING SEVERAL CONSTITUTIONAL ERRORS BUT NOT
ATTACKING THE OHIO COMMENT RULE AS SUCH.  ON MAY 13, 1963, WE DISMISSED
THE APPEAL AND DENIED CERTIORARI, MR. JUSTICE BLACK DISSENTING.  373
U.S. 240.  ALL AVENUES OF DIRECT REIVEW OF THE RESPONDENT'S CONVICTION
WERE THUS FULLY FORECLOSED MORE THAN A YEAR BEFORE OUR DECISION IN
MALLOY V. HOGAN, SUPRA, AND ALMOST TWO YEARS BEFORE OUR DECISION IN
GRIFFIN V. CALIFORNIA, SUPRA. 

A FEW WEEKS AFTER OUR DENIAL OF CERTIORARI THE RESPONDENT SOUGHT A
WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE
SOURTHERN DISTRICT OF OHIO, AGAIN ALLEGING VARIOUS CONSTITUTIONAL
VIOLATIONS IN HIS STATE TRIAL.  THE DISTRICT COURT DISMISSED THE
PETITION, AND RESPONDENT APPEALED TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT.  ON NOVEMBER 10, 1964, THAT COURT REVERSED,
NOTING THAT "THE DAY BEFORE THE ORAL ARGUMENT OF THIS APPEAL, THE
SUPREME COURT IN MALLOY V. HOGAN  ...  RECONSIDERED ITS PREVIOUS
RULINGS AND HELD THAT THE FIFTH AMENDMENT'S EXCEPTION FROM SELF
INCRIMINATION IS ALSO PROTECTED BY THE FOURTEENTH AMENDMENT AGAINST
ABRIDGMENT BY THE STATES," AND REASONING THAT "THE PROTECTION AGAINST
SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT INCLUDES NOT ONLY THE
RIGHT TO REFUSE TO ANSWER INCRIMINATING QUESTIONS, BUT ALSO THE RIGHT
THAT SUCH REFUSAL SHALL NOT BE COMMENTED UPON BY COUNSEL FOR THE
PROSECUTION."  337 F.2D 990, 992. 

WE GRANTED CERTIORARI, REQUESTING THE PARTIES "TO BRIEF AND ARGUE THE
QUESTION OF THE RETROACTIVITY OF THE DOCTRINE ANNOUNCED IN GRIFFIN V.
CALIFORNIA  ...  ."  381 U.S. 923.  SINCE, WE HAVE NOTED, THE ORIGINAL
OHIO JUDGMENT OF CONVICTION IN THIS CASE BECAME FINAL LONG BEFORE
GRIFFIN V. CALIFORNIA WAS DECIDED BY THIS COURT, THAT QUESTION IS
SQUARELY PRESENTED.  (FN3)

                                II. 

IN LINKLETTER V. WALKER, 381 U.S. 618, WE HELD THAT THE EXCLUSIONARY
RULE OF MAPP V. OHIO, 367 U.S. 643, WAS NOT TO BE GIVEN RETROACTIVE
EFFECT.  THE LINKLETTER OPINION REVIEWED IN SOME DETAIL THE COMPETING
CONCEPTUAL AND JURISPRUDENTIAL THEORIES BEARING ON THE PROBLEM OF
WHETHER A JUDICIAL DECISION THAT OVERTURNS PREVIOUSLY ESTABLISHED LAW
IS TO BE GIVEN RETROACTIVE OR ONLY PROSPECTIVE APPLICATION.  MR.
JUSTICE CLARK'S OPINION FOR THE COURT OUTLINED THE HISTORY AND THEORY
OF THE PROBLEM IN TERMS BOTH OF THE VIEWS OF THE COMMENTATORS AND OF
THE DECISIONS IN THIS AND OTHER COURTS WHICH HAVE REFLECTED THOSE
VIEWS.  IT WOULD BE A NEEDLESS EXERCISE HERE TO SURVEY AGAIN A FIELD SO
RECENTLY AND THOROUGHLY EXPLORED.  (FN4) 

RATHER, WE TAKE AS OUR STARTING POINT LINKLETTER'S CONCLUSION THAT
"THE ACCEPTED RULE TODAY IS THAT IN APPROPRIATE CASES THE COURT MAY IN
THE INTEREST OF JUSTICE MAKE THE RULE PROSPECTIVE," THAT THERE IS "NO
IMPEDIMENT - CONSTITUTIONAL OR PHILOSOPHICAL - TO THE USE OF THE SAME
RULE IN THE CONSTITUTIONAL AREA WHERE THE EXIGENCIES OF THE SITUATION
REQUIRE SUCH AN APPLICATION," IN SHORT THAT "THE CONSTITUTION NEITHER
PROHIBITS NOR REQUIRES RETROSPECTIVE EFFECT."  UPON THAT PREMISE,
RESOLUTION OF THE ISSUE REQUIRES US TO "WEIGH THE MERITS AND DEMERITS
IN EACH CASE BY LOOKING TO THE PRIOR HISTORY OF THE RULE IN QUESTION,
ITS PURPOSE AND EFFECT, AND WHETHER RETROSPECTIVE OPERATION WILL
FURTHER OR RETARD ITS OPERATION."  381 U.S., AT 628-629.  (FN5)

                                       III. 

TWINING V. NEW JERSEY WAS DECIDED IN 1908.  211 U.S. 78.  IN THAT
CASE THE PLAINTIFFS IN ERROR HAD BEEN CONVICTED BY THE NEW JERSEY
COURTS AFTER A TRIAL IN WHICH THE JUDGE HAD INSTRUCTED THE JURY THAT IT
MIGHT DRAW AN ADVERSE INFERENCE FROM THE DEFENDANTS' FAILURE TO
TESTIFY.  THE PLAINTIFFS IN ERROR URGED IN THIS COURT TWO PROPOSITIONS:
"FIRST, THAT THE EXEMPTION FROM COMPULSORY SELF-INCRIMINATION IS
GUARANTEED BY THE FEDERAL CONSTITUTION AGAINST IMPAIRMENT BY THE
STATES; AND, SECOND, IF IT BE SO GUARANTEED, THAT THE EXEMPTION WAS IN
FACT IMPAIRED IN THE CASE AT BAR."  211 U.S., AT 91.  IN A LENGTHY
OPINION WHICH THOROUGHLY CONSIDERED BOTH THE PRIVILEGES AND IMMUNITIES
CLAUSE AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THE
COURT HELD, EXPLICITLY AND UNAMBIGUOUSLY, "THAT THE EXEMPTION FROM
COMPULSORY SELF-INCRIMINATION IN THE COURTS OF THE STATES IS NOT
SECURED BY ANY PART OF THE FEDERAL CONSTITUTION."  211 U.S., AT 114. 
HAVING THUS REJECTED THE FIRST PROPOSITION ADVANCED BY THE PLAINTIFFS
IN ERROR, THE COURT REFRAINED FROM PASSING ON THE SECOND.  THAT IS, THE
COURT DID NOT DECIDE WHETHER ADVERSE COMMENT UPON A DEFENDANT'S FAILURE
TO TESTIFY CONSTITUTES A VIOLATION OF THE FEDERAL CONSTITUTIONAL RIGHT
AGAINST SELF-INCRIMINATION.  (FN6) 

THE RULE THUS ESTABLISHED IN THE TWINING CASE WAS REAFFIRMED MANY
TIMES THROUGH THE ENSUING YEARS.   IN AN OPINION FOR THE COURT IN 1934,
MR. JUSTICE CARDOZO CITED TWINING FOR THE PROPOSITION THAT "THE
PRIVILEGE AGAINST SELF-INCRIMINATION MAY BE WITHDRAWN AND THE ACCUSED
PUT UPON THE STAND AS A WITNESS FOR THE STATE."  SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 105.  TWO YEARS LATER CHIEF JUSTICE HUGHES,
WRITING FOR A UNANIMOUS COURT, REITERATED THE EXPLICIT STATEMENTS OF
THE RULE IN TWINING AND SNYDER, NOTING THAT "THE COMPULSION TO WHICH
THE QUOTED STATEMENTS REFER IS THAT OF THE PROCESSES OF JUSTICE BY
WHICH THE ACCUSED MAY BE CALLED AS A WITNESS AND REQUIRED TO TESTIFY." 
BROWN V. MISSISSIPPI, 297 U.S. 278, 285.  IN 1937 THE COURT AGAIN
APPROVED THE TWINING DOCTRINE IN PALKO V. CONNECTICUT, 302 U.S. 319,
324, 325-326.  IN ADAMSON V. CALIFORNIA, 332 U.S. 46, THE ISSUE WAS
ONCE MORE PRESENTED TO THE COURT IN MUCH THE SAME FORM AS IT HAD BEEN
PRESENTED ALMOST 40 YEARS EARLIER IN TWINING.  IN ADAMSON THERE HAD
BEEN COMMENT BY JUDGE AND PROSECUTOR UPON THE DEFENDANT'S FAILURE TO
TESTIFY AT HIS TRIAL, AS PERMITTED BY THE CALIFORNIA CONSTITUTION.  THE
COURT AGAIN FOLLOWED TWINING IN HOLDING THAT THE FOURTEENTH AMENDMENT
DOES NOT REQUIRE A STATE TO ACCORD THE PRIVILEGE AGAINST SELF
INCRIMINATION, AND, AS IN TWINING, THE COURT DID NOT REACH THE QUESTION
WHETHER ADVERSE COMMENT UPON A DEFENDANT'S FAILURE TO TESTIFY WOULD
VIOLATE THE FIFTH AMENDMENT PRIVILEGE.  (FN7) THEREAFTER THE COURT
CONTINUED TO ADHERE TO THE TWINING RULE, NOTABLY IN KNAPP V.
SCHWEITZER, DECIDED IN 1958, 357 U.S. 371, 374, AND IN COHEN V. HURLEY,
DECIDED IN 1961, 366 U.S. 117, 127-129. 

IN RECAPITULATION, THIS BRIEF REVIEW CLEARLY DEMONSTRATES:  (1) FOR
MORE THAN HALF A CENTURY, BEGINNING IN 1908, THE COURT ADHERED TO THE
POSITION THAT THE FEDERAL CONSTITUTION DOES NOT REQUIRE THE STATES TO
ACCORD THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.  (2)
BECAUSE OF THIS POSITION, THE COURT DURING THAT PERIOD NEVER REACHED
THE QUESTION WHETHER THE FEDERAL GUARANTEE AGAINST SELF-INCRIMINATION
PROHIBITS ADVERSE COMMENT UPON A DEFENDANT'S FAILURE TO TESTIFY AT HIS
TRIAL.  (FN8)  ALTHOUGH THERE WERE STRONG DISSENTING VOICES, (FN9) THE
COURT MADE NOT THE SLIGHTEST DEVIATION FROM THAT POSITION DURING A
PERIOD OF MORE THAN 50 YEARS. 

THUS MATTERS STOOD IN 1964, WHEN MALLOY V. HOGAN ANNOUNCED THAT THE
FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION IS PROTECTED BY
THE FOURTEENTH AMENDMENT AGAINST ABRIDGMENT BY THE STATES (378 U.S., AT
6).  LESS THAN A YEAR LATER, ON APRIL 28, 1965, GRIFFIN V. CALIFORNIA
HELD THAT THE FIFTH AMENDMENT "IN ITS BEARING ON THE STATES BY REASON
OF THE FOURTEENTH AMENDMENT, FORBIDS  ... COMMENT BY THE PROSECUTION ON
THE ACCUSED'S SILENCE  ...  ."  (380 U.S., AT 615.) 

                                   IV. 

THUS WE MUST RECKON HERE, AS IN LINKLETTER, 381 U.S., AT 636, WITH
DECISIONAL HISTORY OF A KIND WHICH CHIEF JUSTICE HUGHES POINTED OUT "IS
AN OPERATIVE FACT AND MAY HAVE CONSEQUENCES WHICH CANNOT JUSTLY BE
IGNORED.  THE PAST CANNOT ALWAYS BE ERASED BY A NEW JUDICIAL
DECLARATION."  CHICOT COUNTY DRAINAGE DIST. V. BAXTER STATE BANK, 308
U.S. 371, 374.  IT IS AGAINST THIS BACKGROUND THAT WE LOOK TO THE
PURPOSES OF THE GRIFFIN RULE, THE RELIANCE PLACED UPON THE TWINING
DOCTRINE, AND THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A
RETROSPECTIVE APPLICATION OF GRIFFIN.  SEE LINKLETTER V. WALKER, 381
U.S., AT 636. 

IN LINKLETTER, THE COURT STRESSED THAT THE PRIME PURPOSE OF THE RULE
OF MAPP V. OHIO, (FN10) REJECTING THE DOCTRINE OF WOLF V. COLORADO
(FN11) AS TO THE ADMISSIBILITY OF UNCONSTITUTIONALLY SEIZED EVIDENCE,
WAS "TO DETER THE LAWLESS ACTION OF THE POLICE AND TO EFFECTIVELY
ENFORCE THE FOURTH AMENDMENT."  381 U.S., AT 637.  THERE WE COULD NOT
"SAY THAT THIS PURPOSE WOULD BE ADVANCED BY MAKING THE RULE
RETROSPECTIVE.  THE MISCONDUCT OF THE POLICE PRIOR TO MAPP HAS ALREADY
OCCURRED AND WILL NOT BE CORRECTED BY RELEASING THE PRISONERS
INVOLVED."  IBID. 

NO SUCH SINGLE AND DISTINCT "PURPOSE" CAN BE ATTRIBUTED TO GRIFFIN V.
CALIFORNIA, HOLDING IT CONSTITUTIONALLY IMPERMISSIBLE FOR A STATE TO
PERMIT COMMENT BY A JUDGE OR PROSECUTOR UPON A DEFENDANT'S FAILURE TO
TESTIFY IN A CRIMINAL TRIAL.  THE GRIFFIN OPINION REASONED THAT SUCH
COMMENT "IS A PENALTY IMPOSED BY COURTS FOR EXERCISING A CONSTITUTIONAL
PRIVILEGE.  IT CUTS DOWN ON THE PRIVILEGE BY MAKING ITS ASSERTION
COSTLY."  380 U.S., AT 614.  IT FOLLOWS THAT THE "PURPOSE" OF THE
GRIFFIN RULE IS TO BE FOUND IN THE WHOLE COMPLEX OF VALUES THAT THE
PRIVILEGE AGAINST SELF-INCRIMINATION ITSELF REPRESENTS, VALUES
DESCRIBED IN THE MALLOY CASE AS REFLECTING "RECOGNITION THAT THE
AMERICAN SYSTEM OF CRIMINAL PROSECUTION IS ACCUSATORIAL, NOT
INQUISITORIAL, AND THAT THE FIFTH AMENDMENT PRIVILEGE IS ITS ESSENTIAL
MAINSTAY  ...  .  GOVERNMENTS, STATE AND FEDERAL, ARE THUS
CONSTITUTIONALLY COMPELLED TO ESTABLISH GUILT BY EVIDENCE INDEPENDENTLY
AND FREELY SECURED, AND MAY NOT BY COERCION PROVE A CHARGE AGAINST AN
ACCUSED OUT OF HIS OWN MOUTH."  (FN12)  378 U.S., AT 7-8. 

INSOFAR AS THESE "PURPOSES" OF THE FIFTH AMENDMENT PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION BEAR ON THE QUESTION BEFORE US IN THE
PRESENT CASE, SEVERAL CONSIDERATIONS BECOME IMMEDIATELY APPARENT. 
FIRST, THE BASIC PURPOSES THAT LIE BEHIND THE PRIVILEGE AGAINST SELF
INCRIMINATION DO NOT RELATE TO PROTECTING THE INNOCENT FROM CONVICTION,
BUT RATHER TO PRESERVING THE INTEGRITY OF A JUDICIAL SYSTEM IN WHICH
EVEN THE GUILTY ARE NOT TO BE CONVICTED UNLESS THE PROSECUTION
"SHOULDER THE ENTIRE LOAD."  SECOND, SINCE LONG BEFORE TWINING V. NEW
JERSEY, ALL THE STATES HAVE BY THEIR OWN LAW RESPECTED THESE BASIC
PURPOSES BY EXTENDING THE PROTECTION OF THE TESTIMONIAL PRIVILEGE
AGAINST SELF-INCRIMINATION TO EVERY DEFENDANT TRIED IN THEIR CRIMINAL
COURTS.  IN TWINING THE COURT NOTED THAT "ALL THE STATES OF THE UNION
HAVE, FROM TIME TO TIME, WITH VARYING FORM BUT UNIFORM MEANING,
INCLUDED THE PRIVILEGE IN THEIR CONSTITUTIONS, EXCEPT THE STATES OF NEW
JERSEY AND IOWA, AND IN THOSE STATES IT IS HELD TO BE PART OF THE
EXISTING LAW."  211 U.S., AT 92.  SEE ALSO 8 WIGMORE, EVIDENCE SEC.
2252 (MCNAUGHTON REV. 1961).  IT FOLLOWS THAT SUCH VARIATIONS AS MAY
HAVE EXISTED AMONG THE STATES IN THE APPLICATION OF THEIR RESPECTIVE
GUARANTEES AGAINST SELF-INCRIMINATION DURING THE 57 YEARS BETWEEN
TWINING AND GRIFFIN DID NOT GO TO THE BASIC PURPOSES OF THE FEDERAL
PRIVILEGE.  AND FINALLY, INSOFAR AS STRICT APPLICATION OF THE FEDERAL
PRIVILEGE AGAINST SELF-INCRIMINATION REFLECTS THE CONSTITUTION'S
CONCERN FOR THE ESSENTIAL VALUES REPRESENTED BY "OUR RESPECT FOR THE
INVIOLABILITY OF THE HUMAN PERSONALITY AND OF THE RIGHT OF EACH
INDIVIDUAL 'TO A PRIVATE ENCLAVE WHERE HE MAY LEAD A PRIVATE LIFE,'"
(FN13) ANY IMPINGEMENT UPON THOSE VALUES RESULTING FROM A STATE'S
APPLICATION OF A VARIANT FROM THE FEDERAL STANDARD CANNOT NOW BE
REMEDIED.  AS WE POINTED OUT IN LINKLETTER WITH RESPECT TO THE FOURTH
AMENDMENT RIGHTS THERE IN QUESTION, "THE RUPTURED PRIVACY  ...  CANNOT
BE RESTORED."  381 U.S., AT 637.    AS IN MAPP, THEREFORE, WE DEAL HERE
WITH A DOCTRINE WHICH RESTS ON CONSIDERATIONS OF QUITE A DIFFERENT
ORDER FROM THOSE UNDERLYING OTHER RECENT CONSTITUTIONAL DECISIONS WHICH
HAVE BEEN APPLIED RETROACTIVELY.  THE BASIC PURPOSE OF A TRIAL IS THE
DETERMINATION OF TRUTH, AND IT IS SELF-EVIDENT THAT TO DENY A LAWYER'S
HELP THROUGH THE TECHNICAL INTRICACIES OF A CRIMINAL TRIAL OR TO DENY A
FULL OPPORTUNITY TO APPEAL A CONVICTION BECAUSE THE ACCUSED IS POOR IS
TO IMPEDE THAT PURPOSE AND TO INFECT A CRIMINAL PROCEEDING WITH THE
CLEAR DANGER OF CONVICTING THE INNOCENT.  SEE GIDEON V. WAINWRIGHT, 372
U.S. 335; DOUGHTY V. MAXWELL, 376 U.S. 202; GRIFFIN V. ILLINOIS, 351
U.S. 12; ESKRIDGE V. WASHINGTON PRISON BOARD, 357 U.S. 214.  THE SAME
CAN SURELY BE SAID OF THE WRONGFUL USE OF A COERCED CONFESSION.  SEE
JACKSON V. DENNO, 378 U.S. 368; MCNERLIN V. DENNO, 378 U.S. 575; RECK
V. PATE, 367 U.S. 433.  BY CONTRAST, THE FIFTH AMENDMENT'S PRIVILEGE
AGAINST SELF-INCRIMINATION IS NOT AN ADJUNCT TO THE ASCERTAINMENT OF
TRUTH.  THAT PRIVILEGE, LIKE THE GUARANTEES OF THE FOURTH AMENDMENT,
STANDS AS A PROTECTION OF QUITE DIFFERENT CONSTITUTIONAL VALUES -
VALUES REFLECTING THE CONCERN OF OUR SOCIETY FOR THE RIGHT OF EACH
INDIVIDUAL TO BE LET ALONE.  TO RECOGNIZE THIS IS NO MORE THAN TO
ACCORD THOSE VALUES UNDILUTED RESPECT. 

THERE CAN BE NO DOUBT OF THE STATES' RELIANCE UPON THE TWINING RULE
FOR MORE THAN HALF A CENTURY, NOR CAN IT BE DOUBTED THAT THEY RELIED
UPON THAT CONSTITUTIONAL DOCTRINE IN THE UTMOST GOOD FAITH.  TWO STATES
AMENDED THEIR CONSTITUTIONS SO AS EXPRESSLY TO PERMIT COMMENT UPON A
DEFENDANT'S FAILURE TO TESTIFY, OHIO IN 1912, (FN14) AND CALIFORNIA IN
1934.  (FN15)  AT LEAST FOUR OTHER STATES FOLLOWED SOME VARIANT OF THE
RULE PERMITTING COMMENT.  (FN16) 

MOREOVER, THIS RELIANCE WAS NOT ONLY INVITED OVER A MUCH LONGER
PERIOD OF TIME, DURING WHICH THE TWINING DOCTRINE WAS REPEATEDLY
REAFFIRMED IN THIS COURT, BUT WAS OF UNQUESTIONED LEGITIMACY AS
COMPARED TO THE RELIANCE OF THE STATES UPON THE DOCTRINE OF WOLF V.
COLORADO, CONSIDERED IN LINKLETTER AS AN IMPORTANT FACTOR MILITATING
AGAINST THE RETROACTIVE APPLICATION OF MAPP.  DURING THE 12-YEAR PERIOD
BETWEEN WOLF V. COLORADO AND MAPP V. OHIO, THE STATES WERE AWARE THAT
ILLEGAL SEIZURE OF EVIDENCE BY STATE OFFICERS VIOLATED THE FEDERAL
CONSTITUTION.  (FN17)  IN THE 56 YEARS THAT ELAPSED FROM TWINING TO
MALLOY, BY CONTRAST, THE STATES WERE REPEATEDLY TOLD THAT COMMENT UPON
THE FAILURE OF AN ACCUSED TO TESTIFY IN A STATE CRIMINAL TRIAL IN NO
WAY VIOLATED THE FEDERAL CONSTITUTION.  (FN18) 

THE LAST IMPORTANT FACTOR CONSIDERED BY THE COURT IN LINKLETTER WAS
"THE EFFECT ON THE ADMINISTRATION OF JUSTICE OF A RETROSPECTIVE
APPLICATION OF MAPP."  381 U.S., AT 636.  A RETROSPECTIVE APPLICATION
OF GRIFFIN V. CALIFORNIA WOULD CREATE STRESSES UPON THE ADMINISTRATION
OF JUSTICE MORE CONCENTRATED BUT FULLY AS GREAT AS WOULD HAVE BEEN
CREATED BY A RETROSPECTIVE APPLICATION OF MAPP.  A RETROSPECTIVE
APPLICATION OF MAPP WOULD HAVE HAD AN IMPACT ONLY IN THOSE STATES WHICH
HAD NOT THEMSELVES ADOPTED THE EXCLUSIONARY RULE, APPARENTLY SOME 24 IN
NUMBER.  (FN19)  A RETROSPECTIVE APPLICATION OF GRIFFIN WOULD HAVE AN
IMPACT ONLY UPON THOSE STATES WHICH HAVE NOT THEMSELVES ADOPTED THE NO
COMMENT RULE, APPARENTLY SIX IN NUMBER.  (FN20)  BUT UPON THOSE SIX
STATES THE IMPACT WOULD BE VERY GRAVE INDEED.  IT IS NOT IN EVERY
CRIMINAL TRIAL THAT TANGIBLE EVIDENCE OF A KIND THAT MIGHT RAISE MAPP
ISSUES IS OFFERED.  BUT IT MAY FAIRLY BE ASSUMED THAT THERE HAS BEEN
COMMENT IN EVERY SINGLE TRIAL IN THE COURTS OF CALIFORNIA, CONNECTICUT,
IOWA, NEW JERSEY, NEW MEXICO, AND OHIO, IN WHICH THE DEFENDANT DID NOT
TAKE THE WITNESS STAND - IN ACCORDANCE WITH STATE LAW AND WITH THE
UNITED STATES CONSTITUTION AS EXPLICITLY INTERPRETED BY THIS COURT FOR
57 YEARS. 

EMPIRICAL STATISTICS ARE NOT AVAILABLE, BUT EXPERIENCE SUGGESTS THAT
CALIFORNIA IS NOT INDULGING IN HYPERBOLE WHEN IN ITS AMICUS CURIAE
BRIEF IN THIS CASE IT TELLS US THAT "PRIOR TO THIS COURT'S DECISION IN
GRIFFIN, LITERALLY THOUSANDS OF CASES WERE TRIED IN CALIFORNIA IN WHICH
COMMENT WAS MADE UPON THE FAILURE OF THE ACCUSED TO TAKE THE STAND. 
THOSE REAPING THE GREATEST BENEFIT FROM A RULE COMPELLING RETROACTIVE
APPLICATION OF GRIFFIN WOULD BE THOSE UNDER LENGTHY SENTENCES IMPOSED
MANY YEARS BEFORE GRIFFIN.  THEIR CASES WOULD OFFER THE LEAST
LIKELIHOOD OF A SUCCESSFUL RETRIAL SINCE IN MANY, IF NOT MOST,
INSTANCES, WITNESSES AND EVIDENCE ARE NO LONGER AVAILABLE."  THERE IS
NOTHING TO SUGGEST THAT WHAT WOULD BE TRUE IN CALIFORNIA WOULD NOT ALSO
BE TRUE IN CONNECTICUT, IOWA, NEW JERSEY, NEW MEXICO, AND OHIO.  TO
REQUIRE ALL OF THOSE STATES NOW TO VOID THE CONVICTION OF EVERY PERSON
WHO DID NOT TESTIFY AT HIS TRIAL WOULD HAVE AN IMPACT UPON THE
ADMINISTRATION OF THEIR CRIMINAL LAW SO DEVASTATING AS TO NEED NO
ELABORATION. 

      V. 

WE HAVE PROCEEDED UPON THE PREMISE THAT "WE ARE NEITHER REQUIRED TO
APPLY, NOR PROHIBITED FROM APPLYING, A DECISION RETROSPECTIVELY." 
LINKLETTER V. WALKER, 381 U.S., AT 629.  WE HAVE CONSIDERED THE
PURPOSES OF THE GRIFFIN RULE, THE RELIANCE PLACED UPON THE TWINING
DOCTRINE, AND THE EFFECT UPON THE ADMINISTRATION OF JUSTICE OF A
RETROSPECTIVE APPLICATION OF GRIFFIN.  AFTER FULL CONSIDERATION OF ALL
THE FACTORS, WE ARE NOT ABLE TO SAY THAT THE GRIFFIN RULE REQUIRES
RETROSPECTIVE APPLICATION. 

THE JUDGMENT IS VACATED AND THE CASE REMANDED TO THE COURT OF APPEALS
FOR THE SIXTH CIRCUIT FOR CONSIDERATION OF THE CLAIMS CONTAINED IN THE
RESPONDENT'S PETITION FOR HABEAS CORPUS, CLAIMS WHICH THAT COURT HAS
NEVER CONSIDERED.  IT IS SO ORDERED. 

FN1  OHIO REV. CODE SECS. 1707.01-1707.45. 

FN2 SINCE 1912 A PROVISION OF THE OHIO CONSTITUTION HAS PERMITTED A
PROSECUTOR TO COMMENT UPON A DEFENDANT'S FAILURE TO TESTIFY IN A
CRIMINAL TRIAL.  ARTICLE I, SEC. 10, OF THE CONSTITUTION OF OHIO
PROVIDES, IN PART, AS FOLLOWS:  "NO PERSON SHALL BE COMPELLED, IN ANY
CRIMINAL CASE, TO BE A WITNESS AGAINST HIMSELF; BUT HIS FAILURE TO
TESTIFY MAY BE CONSIDERED BY THE COURT AND JURY AND MAY BE THE SUBJECT
OF COMMENT BY COUNSEL." 

THE SAME WORDING. 

FN3  THE SUPREME COURT OF CALIFORNIA AND THE SUPREME COURT OF OHIO
HAVE BOTH CONSIDERED THE QUESTION, AND EACH COURT HAS UNANIMOUSLY HELD
THAT UNDER THE CONTROLLING PRINCIPLES DISCUSSED IN LINKLETTER V.
WALKER, 381 U.S. 618, THE GRIFFIN RULE IS NOT TO BE APPLIED
RETROACTIVELY IN THOSE STATES.  IN RE GAINES, 63 CAL. 2D 234, 404 P.2D
473; PINCH V. MAXWELL, 3 OHIO ST. 2D 212, 210 N.E.2D 883. 

AS IN LINKLETTER, THE QUESTION IN THE PRESENT CASE IS NOT ONE OF
"PURE PROSPECTIVITY."  THE RULE ANNOUNCED IN GRIFFIN WAS APPLIED TO
REVERSE GRIFFIN'S CONVICTION.  COMPARE ENGLAND V. LOUISIANA STATE BOARD
OF MEDICAL EXAMINERS, 375 U.S. 411.  NOR IS THERE ANY QUESTION OF
APPLICABILITY OF THE GRIFFIN RULE TO CASES STILL PENDING ON DIRECT
REVIEW AT THE TIME IT WAS ANNOUNCED.  CF. O'CONNOR V. OHIO, ANTE, P.
286. 

THE PRECISE QUESTION IS WHETHER THE RULE OF GRIFFIN V. CALIFORNIA IS
TO BE APPLIED TO CASES IN WHICH THE JUDGMENT OF CONVICTION WAS
RENDERED, THE AVAILABILITY OF APPEAL EXHAUSTED, AND THE TIME FOR
PETITION FOR CERTIORARI ELAPSED OR A PETITION FOR CERTIORARI FINALLY
DENIED, ALL BEFORE APRIL 28, 1965. 

FN4  SEE LINKLETTER V. WALKER, 381 U.S. 618, 622-628. 

FN5  FOR A RECENT COMMENTARY ON THE LINKLETTER DECISION AND A
SUGGESTED ALTERNATIVE APPROACH TO THE PROBLEM, SEE MISHKIN, THE SUPREME
COURT 1964 TERM - FOREWARD:  THE HIGH COURT, THE GREAT WRIT, AND THE
DUE PROCESS OF TIME AND LAW, 79 HARV. L. REV. 56. 

FN6  "WE HAVE ASSUMED ONLY FOR THE PURPOSE OF DISCUSSION THAT WHAT
WAS DONE IN THE CASE AT BAR WAS AN INFRINGEMENT OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION.  WE DO NOT INTEND, HOWEVER, TO LEND ANY
COUNTENANCE TO THE TRUTH OF THAT ASSUMPTION.  THE COURTS OF NEW JERSEY,
IN ADOPTING THE RULE OF LAW WHICH IS COMPLAINED OF HERE, HAVE DEEMED IT
CONSISTENT WITH THE PRIVILEGE ITSELF AND NOT A DENIAL OF IT  ...  .
THE AUTHORITIES UPON THE QUESTION ARE IN CONFLICT.  WE DO NOT PASS UPON
THE CONFLICT, BECAUSE, FOR THE REASONS GIVEN, WE THINK THAT THE
EXEMPTION FROM COMPULSORY SELF-INCRIMINATION IN THE COURTS OF THE
STATES IS NOT SECURED BY ANY PART OF THE FEDERAL CONSTITUTION."  211
U.S., AT 114. 

FN7  AS THE COURT POINTED OUT IN ADAMSON, 332 U.S., AT 50, N. 6, THIS
QUESTION HAD NEVER ARISEN IN THE FEDERAL COURTS, BECAUSE A FEDERAL
STATUTE HAD BEEN INTERPRETED AS PROHIBITING ADVERSE COMMENT UPON A
DEFENDANT'S FAILURE TO TESTIFY IN A FEDERAL CRIMINAL TRIAL.  SEE 20
STAT. 30, AS AMENDED, NOW 18 U.S.C. SEC. 3481; BRUNO V. UNITED STATES,
308 U.S. 287; WILSON V. UNITED STATES, 149 U.S. 60. 

FN8  IN THE FEDERAL JUDICIAL SYSTEM, THE MATTER WAS CONTROLLED BY A
STATUTE.  SEE N.7, SUPRA. 

FN9  SEE, E.G., MR. JUSTICE BLACK'S HISTORIC DISSENTING OPINION IN
ADAMSON V. CALIFORNIA, 332 U.S., AT 68. 

FN10  367 U.S. 643. 

FN11  338 U.S. 25. 

FN12  THESE VALUES WERE FURTHER CATALOGUED IN MR. JUSTICE GOLDBERG'S
OPINION FOR THE COURT IN MURPHY V. WATERFRONT COMM'N, 378 U.S. 52,
ANNOUNCED THE SAME DAY AS MALLOY V. HOGAN, 378 U.S. 1: "THE PRIVILEGE
AGAINST SELF-INCRIMINATION 'REGISTERS AN IMPORTANT ADVANCE IN THE
DEVELOPMENT OF OUR LIBERTY - "ONE OF THE GREAT LANDMARKS IN MAN'S
STRUGGLE TO MAKE HIMSELF CIVILIZED."'  ULLMAN V. UNITED STATES, 350
U.S. 422, 426.  THE QUOTATION IS FROM GRISWOLD, THE FIFTH AMENDMENT
TODAY (1955), 7.  IT REFLECTS MANY OF OUR FUNDAMENTAL VALUES AND MOST
NOTABLE ASPIRATIONS: OUR UNWILLINGNESS TO SUBJECT THOSE SUSPECTED OF
CRIME TO THE CRUEL TRILEMMA OF SELF-ACCUSATION, PERJURY OR CONTEMPT;
OUR PREFERENCE FOR AN ACCUSATORIAL RATHER THAN AN INQUISITORIAL SYSTEM
OF CRIMINAL JUSTICE; OUR FEAR THAT SELF-INCRIMINATING STATEMENTS WILL
BE ELICITED BY INHUMANE TREATMENT AND ABUSES; OUR SENSE OF FAIR PLAY
WHICH DICTATES 'A FAIR STATE-INDIVIDUAL BALANCE BY REQUIRING THE
GOVERNMENT TO LEAVE THE INDIVIDUAL ALONE UNTIL GOOD CAUSE IS SHOWN FOR
DISTURBING HIM AND BY REQUIRING THE GOVERNMENT IN ITS CONTEST WITH THE
INDIVIDUAL TO SHOULDER THE ENTIRE LOAD,' 8 WIGMORE, EVIDENCE
(MCNAUGHTON REV., 1961), 317; OUR RESPECT FOR THE INVIOLABILITY OF THE
HUMAN PERSONALITY AND OF THE RIGHT OF EACH INDIVIDUAL 'TO A PRIVATE
ENCLAVE WHERE HE MAY LEAD A PRIVATE LIFE,' UNITED STATES V. GRUNEWALD,
233 F.2D 556, 581-582 (FRANK, J., DISSENTING), REV'D 353 U.S. 391; OUR
DISTRUST OF SELF-DEPRECATORY STATEMENTS; AND OUR REALIZATION THAT THE
PRIVILEGE, WHILE SOMETIMES 'A SHELTER TO THE GUILTY,' IS OFTEN 'A
PROTECTION TO THE INNOCENT.'  QUINN V. UNITED STATES, 349 U.S. 155,
162."  378 U.S., AT 55.   "THE PRIVILEGE AGAINST SELF-INCRIMINATION
REPRESENTS MANY FUNDAMENTAL VALUES AND ASPIRATIONS.  IT IS 'AN
EXPRESSION OF THE MORAL STRIVING OF THE COMMUNITY  ...  A REFLECTION OF
OUR COMMON CONSCIENCE  ...  ."  MALLOY V. HOGAN, ANTE, P. 9, N. 7,
QUOTING GRISWOLD, THE FIFTH AMENDMENT TODAY (1955), 73.   THAT IS WHY
IT IS REGARDED AS SO FUNDAMENTAL A PART OF OUR CONSTITUTIONAL FABRIC,
DESPITE THE FACT THAT 'THE LAW AND THE LAWYERS  ...  HAVE NEVER MADE UP
THEIR MINDS JUST WHAT IT IS SUPPOSED TO DO OR JUST WHOM IT IS INTENDED
TO PROTECT.'  KALVEN, INVOKING THE FIFTH AMENDMENT - SOME LEGAL AND
IMPRACTICAL CONSIDERATIONS, 9 BULL.  ATOMIC SCI.  181, 182."  378 U.S.,
AT 56, N. 5. 

FN13  SEE N. 12, SUPRA. 

FN14  SEE N. 2, SUPRA. 

FN15  CALIFORNIA CONSTITUTION, ART. I, SEC. 13. 

FN16  SEE STATE V. HENO, 119 CONN. 29, 174 A. 181; STATE V. FERGUSON,
226 IOWA 361, 372-373, 283 N.W. 917, 923; STATE V. CORBY, 28 N.J. 106,
145 A.2D 289; STATE V. SANDOVAL, 59 N.M. 85, 279 P.2D 850. 

FN17  IN WOLF V. COLORADO, 338 U.S. 25, IT WAS UNEQUIVOCALLY
DETERMINED BY A UNANIMOUS COURT THAT THE FEDERAL CONSTITUTION, BY
VIRTUE OF THE FOURTEENTH AMENDMENT, PROHIBITS UNREASONABLE SEARCHES AND
SEIZURES BY STATE OFFICERS.  "THE SECURITY OF ONE'S PRIVACY AGAINST
ARBITRARY INSTRUSION BY THE POLICE  ...  IS  ...  IMPLICIT IN 'THE
CONCEPT OF ORDERED LIBERTY' AND AS SUCH ENFORCEABLE AGAINST THE STATES
THROUGH THE DUE PROCESS CLAUSE."  338 U.S., AT 27-28. 

FN18  SEE, FOR EXAMPLE, SCOTT V. CALIFORNIA, 364 U.S. 471, WHERE, AS
LATE AS DECEMBER 1960, ONLY A SINGLE MEMBER OF THE COURT EXPRESSED
DISSENT FROM THE DISMISSAL OF AN APPEAL CHALLENGING THE
CONSTITUTIONALITY OF THE CALIFORNIA COMMENT RULE. 

FN19  SEE ELKINS V. UNITED STATES, 364 U.S. 206, AT 224-225
(APPENDIX). 

FN20  SEE NOTES, 2, 15, AND 16, SUPRA. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTS FOR
SUBSTANTIALLY THE SAME REASONS STATED IN HIS DISSENTING OPINION IN
LINKLETTER V. WALKER, 381 U.S. 618, AT 640. 

THE CHIEF JUSTICE TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







SEGAL V. ROCHELLE 382 U.S. 375 


NO. 44.  ARGUED NOVEMBER 17, 1965.  - DECIDED JANUARY 18, 1966.  - 336
F.2D 298, AFFIRMED. 


ON SEPTEMBER 27, 1961, THE INDIVIDUAL PETITIONERS AND THEIR BUSINESS
PARTNERSHIP FILED BANKRUPTCY PETITIONS.  AFTER THE END OF THAT YEAR
LOSS-CARRYBACK FEDERAL INCOME TAX REFUNDS WERE OBTAINED FOR THE
INDIVIDUAL PETITIONERS BASED ON THE FIRM'S LOSSES DURING 1961 PRIOR TO
BANKRUPTCY WHICH WERE OFFSET AGAINST INCOME FOR 1959 AND 1960 ON WHICH
TAXES HAD BEEN PAID.  THESE REFUNDS, ON DEPOSIT IN A SPECIAL ACCOUNT BY
THE BANKRUPTCY TRUSTEE, ARE CLAIMED BY PETITIONERS ON THE GROUND THAT
BANKRUPTCY HAD NOT PASSED THE REFUND CLAIMS TO THE TRUSTEE.  THE
REFEREE RULED AGAINST PETITIONERS, AS DID THE DISTRICT COURT AND THE
COURT OF APPEALS, THE LATTER HOLDING THAT THE LOSS-CARRYBACK REFUND
CLAIMS WERE BOTH "PROPERTY" AND "TRANSFERABLE" AT THE TIME OF THE
BANKRUPTCY PETITION AND THUS HAD PASSED TO THE TRUSTEE.  HELD: 

1.  THESE INCHOATE CLAIMS FOR LOSS-CARRYBACK REFUNDS CONSTITUTED
"PROPERTY" AS THAT TERM IS USED IN SEC 70A(5) OF THE BANKRUPTCY ACT. 
PP. 379-381. 

(A)  THE CLASSIFICATION AS "PROPERTY" IS GOVERNED BY THE PURPOSES OF
THE ACT.  P. 379. 

(B)  THE MAIN THRUST OF SEC 70A(5) BEING TO OBTAIN FOR CREDITORS
EVERYTHING OF VALUE POSSESSED BY THE BANKRUPT IN ALIENABLE FORM AT THE
TIME THE PETITION WAS FILED, THE TERM "PROPERTY" HAS BEEN GENEROUSLY
CONSTRUED AND DOES NOT EXCLUDE INTERESTS WHICH ARE NOVEL OR CONTINGENT
OR WHERE ENJOYMENT MUST BE POSTPONED.  P. 379. 

(C)  THE TERM IS LIMITED BY ANOTHER PURPOSE OF THE ACT, WHICH IS TO
LEAVE THE BANKRUPT FREE AFTER THE DATE OF THE PETITION TO ACQUIRE NEW
WEALTH.  P. 379. 

(D)  THE LOSS-CARRYBACK REFUND CLAIM IS SUFFICIENTLY ROOTED IN THE
PREBANKRUPTCY PAST AND SO LITTLE ENMESHED WITH THE BANKRUPT'S ABILITY
TO MAKE AN UNENCUMBERED NEW START THAT IT SHOULD BE REGARDED AS
"PROPERTY" UNDER SEC 70A(5).  P. 380. 

2.  THE REFUND CLAIMS WERE PROPERTY WHICH PRIOR TO FILING THE
PETITION COULD HAVE BEEN "TRANSFERRED" WITHIN THE MEANING OF SEC
70A(5).  PP. 381-385. 

(A)  THE ASSIGNMENT OF CLAIMS ACT, 31 U.S.C. SEC 203, DOES NOT ALWAYS
PREVENT GIVING EFFECT, BETWEEN THE PARTIES, TO A NON-COMPLYING
TRANSFER, MARTIN V. NATIONAL SURETY CO., 300 U.S. 588.  P. 384. 

(B)  IN TEXAS, WHERE THE PETITIONERS RESIDED AND DID BUSINESS, THE
PRECEDENTS LEAVE LITTLE DOUBT THAT AN ASSIGNMENT OF THE REFUND CLAIMS
WOULD NORMALLY BE ENFORCED IN EQUITY BETWEEN THE PARTIES.  PP. 384
385. 

SEGAL, DBA SEGAL COTTON PRODUCTS, ET AL. V. ROCHELLE, TRUSTEE IN
BANKRUPTCY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, PRESENTING A DIFFICULT QUESTION OF BANKRUPTCY LAW ON WHICH
THE CIRCUITS HAVE DIFFERED, ARISES OUT OF THE FOLLOWING FACTS.  ON
SEPTEMBER 27, 1961, VOLUNTARY BANKRUPTCY PETITIONS WERE FILED IN A
FEDERAL COURT IN TEXAS BY GERALD SEGAL, SAM SEGAL, AND THEIR BUSINESS
PARTNERSHIP, SEGAL COTTON PRODUCTS.  A SINGLE TRUSTEE, ROCHELLE, WAS
DESIGNATED TO SERVE IN ALL THREE PROCEEDINGS.  AFTER THE CLOSE OF THAT
CALENDAR YEAR, LOSS-CARRYBACK TAX REFUNDS WERE SOUGHT AND OBTAINED FROM
THE UNITED STATES ON BEHALF OF GERALD AND SAM SEGAL UNDER INTERNAL
REVENUE CODE SEC 172.  THE LOSSES UNDERLYING THE REFUNDS HAD BEEN
SUFFERED BY THE PARTNERSHIP DURING 1961 PRIOR TO THE FILING OF THE
BANKRUPTCY PETITIONS; THE LOSSES WERE CARRIED BACK TO THE YEARS 1959
AND 1960 TO OFFSET NET INCOME ON WHICH THE SEGALS HAD BOTH PAID TAXES. 
BY AGREEMENT, ROCHELLE DEPOSITED THE REFUNDS IN A SPECIAL ACCOUNT, AND
THE SEGALS APPLIED TO THE REFEREE IN BANKRUPTCY TO AWARD THE REFUNDS TO
THEM ON THE GROUND THAT BANKRUPTCY HAD NOT PASSED THE REFUND CLAIMS TO
THE TRUSTEE. 

CONCLUDING THAT THE REFUND CLAIMS HAD INDEED PASSED UNDER SEC 70A(5)
OF THE BANKRUPTCY ACT (FN1) AS "PROPERTY  ...  WHICH PRIOR TO THE
FILING OF THE PETITION  ...  THE BANKRUPT COULD BY ANY MEANS HAVE
TRANSFERRED," THE REFEREE DENIED THE SEGALS' APPLICATION.  THE DISTRICT
COURT AFFIRMED THE DENIAL, AND THE SEGALS AND THEIR PARTNERSHIP
APPEALED TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.  (FN2)  THAT
COURT TOO REJECTED THE SEGALS' CONTENTION. 

AS THE COURT OF APPEALS HERE RECOGNIZED, THE COURT OF APPEALS FOR THE
FIRST CIRCUIT IN FOURNIER V. ROSENBLUM, 318 F.2D 525, AND THE COURT OF
APPEALS FOR THE THIRD CIRCUIT IN IN RE SUSSMAN, 289 F.2D 76, HAVE BOTH
RULED SQUARELY THAT A BANKRUPT'S LOSS-CARRYBACK REFUND CLAIMS BASED ON
LOSSES IN THE YEAR OF BANKRUPTCY DO NOT PASS TO THE TRUSTEE BUT INSTEAD
THE BANKRUPT IS ENTITLED TO THE REFUNDS WHEN THEY ARE ULTIMATELY PAID. 
CONCEDEDLY, UNDER SEC 70A(5) THE TRUSTEE MUST ACQUIRE THE BANKRUPT'S
"PROPERTY" AS OF THE DATE THE PETITION IS FILED AND PROPERTY
SUBSEQUENTLY ACQUIRED BELONGS TO THE BANKRUPT.  SEE NOTE 1, SUPRA; 4
COLLIER, BANKRUPTCY PARA 70.09 (14TH ED. 1962).  SINCE THE TAX LAWS
ALLOW A LOSS-CARRYBACK REFUND CLAIM TO BE MADE ONLY WHEN THE YEAR HAS
CLOSED, SEE I.R.C. SECS 172(A), (C), 6411, BOTH THE FIRST AND THIRD
CIRCUITS REASONED THAT PRIOR TO THE YEAR'S END A LOSS-CARRYBACK REFUND
CLAIM WAS TOO TENUOUS TO BE CLASSED AS "PROPERTY" WHICH WOULD PASS
UNDER SEC 70A(5).  ALTERNATIVELY, THE THIRD CIRCUIT STATED THAT BECAUSE
OF THE FEDERAL ANTI-ASSIGNMENT STATUTE, (FN3) INCHOATE REFUND CLAIMS
WERE NOT IN ANY EVENT PROPERTY "WHICH PRIOR TO THE FILING OF THE
PETITION  ...  THE BANKRUPT COULD BY ANY MEANS HAVE TRANSFERRED," AS
SEC 70A(5) ALSO REQUIRES.  BOTH CIRCUITS FELT THE RESULT TO BE
UNFORTUNATE, NOT LEAST BECAUSE THE VERY LOSSES GENERATING THE REFUNDS
OFTEN HELP PRECIPITATE THE BANKRUPTCY AND INJURY TO THE CREDITORS, BUT
BOTH BELIEVED THE STATUTORY LANGUAGE LEFT NO OPTION. 

AFTER DETAILED DISCUSSION OF THE PROBLEMS, THE COURT OF APPEALS IN
THIS CASE RESOLVED THAT THE LOSS-CARRYBACK REFUND CLAIMS WERE BOTH
"PROPERTY" AND "TRANSFERABLE" AT THE TIME OF THE BANKRUPTCY PETITION
AND HENCE HAD PASSED TO THE TRUSTEE.  336 F.2D 298.  WE GRANTED
CERTIORARI BECAUSE OF THE CONFLICT AND THE SIGNIFICANCE OF THE ISSUE IN
BANKRUPTCY ADMINISTRATION.  (FN4)  380 U.S. 931.  CONCEDING THE
QUESTION TO BE CLOSE, WE ARE PERSUADED BY THE REASONING OF THE FIFTH
CIRCUIT AND WE AFFIRM ITS DECISION. 

          I. 

WE TURN FIRST TO THE QUESTION WHETHER ON THE DATE THE BANKRUPTCY
PETITIONS WERE FILED, THE POTENTIAL CLAIMS FOR LOSS-CARRYBACK REFUNDS
CONSTITUTED "PROPERTY" AS SEC 70A(5) EMPLOYS THAT TERM.  ADMITTEDLY, IN
INTERPRETING THIS SECTION "IT IS IMPOSSIBLE TO GIVE ANY CATEGORICAL
DEFINITION TO THE WORD 'PROPERTY,' NOR CAN WE ATTACH TO IT IN CERTAIN
RELATIONS THE LIMITATIONS WHICH WOULD BE ATTACHED TO IT IN OTHERS." 
FISHER V. CUSHMAN, 103 F. 860, 864.  WHETHER AN ITEM IS CLASSED AS
"PROPERTY" BY THE FIFTH AMENDMENT'S JUST-COMPENSATION CLAUSE OR FOR
PURPOSES OF A STATE TAXING STATUTE CANNOT DECIDE HARD CASES UNDER THE
BANKRUPTCY ACT, WHOSE OWN PURPOSES MUST ULTIMATELY GOVERN. 

THE MAIN THRUST OF SEC 70A(5) IS TO SECURE FOR CREDITORS EVERYTHING
OF VALUE THE BANKRUPT MAY POSSESS IN ALIENABLE OR LEVIABLE FORM WHEN HE
FILES HIS PETITION.  TO THIS END THE TERM "PROPERTY" HAS BEEN CONSTRUED
MOST GENEROUSLY AND AN INTEREST IS NOT OUTSIDE ITS REACH BECAUSE IT IS
NOVEL OR CONTINGENT OR BECAUSE ENJOYMENT MUST BE POSTPONED.  E.G.,
HORTON V. MOORE, 110 F.2D 189 (CONTINGENT, POSTPONED INTEREST IN A
TRUST); KLEINSCHMIDT V. SCHROETER, 94 F.2D 707 (LIMITED INTEREST IN
FUTURE PROFITS OF A JOINT VENTURE); SEE 3 REMINGTON, BANKRUPTCY SECS
1177-1269 (HENDERSON ED. 1957).  HOWEVER, LIMITATIONS ON THE TERM DO
GROW OUT OF OTHER PURPOSES OF THE ACT; ONE PURPOSE WHICH IS HIGHLY
PROMINENT AND IS RELEVANT IN THIS CASE IS TO LEAVE THE BANKRUPT FREE
AFTER THE DATE OF HIS PETITION TO ACCUMULATE NEW WEALTH IN THE FUTURE. 
ACCORDINGLY, FUTURE WAGES OF THE BANKRUPT DO NOT CONSTITUTE "PROPERTY"
AT THE TIME OF BANKRUPTCY NOR, ANALOGOUSLY, DOES AN INTENDED BEQUEST TO
HIM OR A PROMISED GIFT - EVEN THOUGH STATE LAW MIGHT PERMIT ALL OF
THESE TO BE ALIENATED IN ADVANCE.  E.G., IN RE COLEMAN, 87 F.2D 753;
SEE 4 COLLIER, BANKRUPTCY PARAS 70.09, 70.27 (14TH ED. 1962).  TURNING
TO THE LOSS-CARRYBACK REFUND CLAIM IN THIS CASE, WE BELIEVE IT IS
SUFFICIENTLY ROOTED IN THE PRE-BANKRUPTCY PAST AND SO LITTLE ENTANGLED
WITH THE BANKRUPTS' ABILITY TO MAKE AN UNENCUMBERED FRESH START THAT IT
SHOULD BE REGARDED AS "PROPERTY" UNDER SEC 70A(5). 

TEMPORALLY, TWO KEY ELEMENTS POINTING TOWARD REALIZATION OF A REFUND
EXISTED AT THE TIME THESE BANKRUPTCY PETITIONS WERE FILED:  TAXES HAD
BEEN PAID ON NET INCOME WITHIN THE PAST THREE YEARS, AND THE YEAR OF
BANKRUPTCY AT THAT POINT EXHIBITED A NET OPERATING LOSS.  THE SEGALS
STRESS IN THIS COURT THAT UNDER THE STATUTORY SCHEME NO REFUND COULD BE
CLAIMED FROM THE GOVERNMENT UNTIL THE END OF THE YEAR, BUT AS CASES
ALREADY CITED INDICATE, POSTPONED ENJOYMENT DOES NOT DISQUALIFY AN
INTEREST AS "PROPERTY."  THAT EARNINGS BY THE BANKRUPT AFTER FILING THE
PETITION MIGHT DIMINISH OR ELIMINATE THE LOSS-CARRYBACK REFUND CLAIM
DOES FURTHER QUALIFY THE INTEREST, BUT WE HAVE ALREADY NOTED THAT
CONTINGENCY IN THE ABSTRACT IS NO BAR AND THE ACTUAL RISK THAT THE
REFUND CLAIMS MAY BE ERASED IS QUITE FAR FROM A CERTAINTY.  (FN5)
UNLIKE A PRE-BANKRUPTCY PROMISE OF A GIFT OR BEQUEST, PASSING TITLE TO
THE TRUSTEE DOES NOT MAKE IT UNLIKELY THE GIFT OR BEQUEST WILL BE
EFFECTED.  NOR DOES PASSING THE CLAIM HINDER THE BANKRUPT FROM STARTING
OUT ON A CLEAN SLATE, FOR ANY ADMINISTRATIVE INCONVENIENCE TO THE
BANKRUPT WILL NOT BE PROLONGED, SEE 110 U. PA. L. REV., AT 279-280, AND
THE BANKRUPT WITHOUT A REFUND CLAIM TO PRESERVE HAS MORE REASON TO EARN
INCOME RATHER THAN LESS. 

WE ARE TOLD THAT IF THIS LOSS-CARRYBACK REFUND CLAIM IS "PROPERTY,"
THAT LABEL MUST ALSO ATTACH TO LOSS-CARRYOVERS, THAT IS, THE
APPLICATION OF PRE-BANKRUPTCY LOSSES TO EARNINGS IN FUTURE YEARS. 
SINCE LOSSES MAY BE CARRIED FORWARD FIVE YEARS AND IN SOME CASES EVEN
SEVEN OR TEN YEARS, I.R.C. SECS 172(B)(1)(B)-(D), GREAT HARDSHIP FOR
THE ESTATE IS FORESEEN BY PETITIONERS IN KEEPING IT OPEN FOR THIS
LENGTH OF TIME.  WHILE IN FACT THE TRUSTEE CAN OBVIATE THIS DETRIMENT
TO THE ESTATE - BY SELLING A CONTINGENT CLAIM IN SOME INSTANCES OR
SIMPLY FORGOING IT - INCONVENIENCE AND HINDRANCE MIGHT BE CAUSED FOR
THE BANKRUPT INDIVIDUAL.  WITHOUT RULING IN ANY WAY ON A QUESTION NOT
BEFORE US, IT IS ENOUGH TO SAY THAT A CARRYOVER INTO POST-BANKRUPTCY
YEARS CAN BE DISTINGUISHED CONCEPTUALLY AS WELL AS PRACTICALLY.  THE
BANKRUPTS IN THIS CASE HAD BOTH PRIOR NET INCOME AND A NET LOSS WHEN
THEIR PETITIONS WERE FILED AND APPARENTLY WOULD HAVE DESERVED AN
IMMEDIATE REFUND HAD THEIR TAX YEAR TERMINATED ON THAT DATE; BY
CONTRAST, THE SUPPOSED LOSS-CARRYOVER WOULD STILL NEED TO BE MATCHED IN
SOME FUTURE YEAR BY EARNINGS, EARNINGS THAT MIGHT NEVER EVENTUATE AT
ALL. 

                             II. 

HAVING CONCLUDED THAT THE LOSS-CARRYBACK REFUND CLAIMS IN THIS CASE
CONSTITUTED "PROPERTY" AT THE TIME OF THE BANKRUPTCY PETITIONS, IT
REMAINS FOR US TO DECIDE WHETHER IN ADDITION THEY WERE PROPERTY "WHICH
PRIOR TO THE FILING OF THE PETITION  ...  THE BANKRUPT COULD BY ANY
MEANS HAVE TRANSFERRED ...  ."  (FN6)  THE PRIME OBSTACLE TO AN
AFFIRMATIVE ANSWER IS 31 U.S.C.  SEC 203, WHICH RENDERS "ABSOLUTELY
NULL AND VOID" ALL TRANSFERS OF ANY CLAIM AGAINST THE UNITED STATES
UNLESS AMONG OTHER CONDITIONS THE CLAIM HAS BEEN ALLOWED AND THE AMOUNT
ASCERTAINED.  SEE N. 3, SUPRA.  PLAINLY SINCE THE TAX LAWS CALCULATE
THE REFUND ONLY ON THE FULL YEAR'S EXPERIENCE AFTER THE YEAR HAS
CLOSED, THE CLAIMS IN THE PRESENT INSTANCE COULD NOT HAVE BEEN ALLOWED
OR ASCERTAINED AT THE TIME THE PETITIONS WERE FILED. 

THE RESPONDENT ARGUES THAT THE TRANSFERABILITY REQUIREMENT OF SEC 70A
(5) CAN BE MET BY RELYING ON THE LONG-ESTABLISHED RULE THAT SEC 203
DOES NOT APPLY TO PREVENT TRANSFERS BY "OPERATION OF LAW."  SEE UNITED
STATES V. AETNA SURETY CO., 338 U.S. 366, 373-374; GOODMAN V. NIBLACK,
102 U.S. 556, 560.  (FN7)  THE PHRASING OF SEC 70A(5), HOWEVER,
SUGGESTS THAT IT CONTEMPLATES A VOLUNTARY TRANSFER AND IS NOT SATISFIED
SIMPLY BECAUSE PROPERTY COULD HAVE BEEN TRANSFERRED BY OPERATION OF
LAW, SUCH AS BY DEATH, BANKRUPTCY, OR JUDICIAL PROCESS.  NOT ONLY IS
THERE PRACTICALLY NO FORM OF PROPERTY THAT WOULD NOT BE TRANSFERABLE
UNDER THE BROADER READING, BUT SUCH A READING ALSO MAKES REDUNDANT THE
ALTERNATIVE ROUTE FOR COMPLYING WITH SEC 70A(5) THROUGH SHOWING THAT
THE PROPERTY "MIGHT HAVE BEEN LEVIED UPON AND SOLD UNDER JUDICIAL
PROCESS  ...  ."  (FN8) ADMITTEDLY, THE BANKRUPTCY ACT DEFINES THE WORD
"TRANSFER" IN ITS GENERAL DEFINITIONAL SECTION TO INCLUDE AT LEAST
CERTAIN TRANSFERS THAT ARE "INVOLUNTARY," (FN9) BUT LEGISLATIVE HISTORY
INDICATES THAT THE INTRODUCTION OF THIS LATTER TERM INTO THE ACT 40
YEARS AFTER ITS FRAMING WAS NOT AIMED AT SEC 70A(5) AT ALL.  SEE H.R.
REP. NO. 1409, 75TH CONG., 1ST SESS., P. 5; ANALYSIS OF H.R. 12889,
74TH CONG., 2D SESS., P. 7 (HOUSE JUDICIARY COMM. PRINT). 

DIFFICULTY IN DEFINING THE TERM "TRANSFER" IS ENHANCED BY THE ABSENCE
OF ANY EXPLANATION FOR CONGRESS' HAVING MADE TRANSFERABILITY A
CONDITION IN THE FIRST PLACE.  BANKRUPTCY ACTS PRIOR TO THE PRESENT ONE
ENACTED IN 1898 HAD NO LIKE LIMITATION ON THE TRUSTEE'S SUCCESSION TO
PROPERTY, SEE BANKRUPTCY ACTS OF 1867, SEC 14, 14 STAT. 522; OF 1841,
SEC 3, 5 STAT. 442; AND OF 1800, SECS 5, 13, 2 STAT. 23, 25, AND UNDER
THE PREDECESSOR ACT CLAIMS AGAINST THE GOVERNMENT PASSED WITHOUT
IMPEDIMENT TO THE TRUSTEE.  SEE, E.G., ERWIN V. UNITED STATES, 97 U.S.
392.  THIS HISTORY AND THE CHANCE THAT THE 1898 LIMITATION SOUGHT ONLY
TO RESPECT STATE POLICIES AGAINST ALIENATING PROPERTY SUCH AS A
CONTINGENT REMAINDER OR SPENDTHRIFT TRUST FUND ARGUE FOR FLATLY
IGNORING THE LIMITATION IN THIS INSTANCE.  SEE 14 STAN.  L. REV., AT
383-386.  NEVERTHELESS, WE HAVE BEEN SHOWN NO LEGISLATIVE HISTORY ON
THE POINT, AND AN UNCERTAIN GUESS AT CONGRESS' INTENT PROVIDES DUBIOUS
GROUND FOR DISREGARDING ITS PLAIN LANGUAGE.  IN ANY EVENT, WE ARE NOT
PREPARED TO ACCEPT THIS ARGUMENT, JUST AS WE CANNOT NOW GO BEYOND A
NARROW DEFINITION OF THE TERM "TRANSFER," IN A CASE IN WHICH THESE
POINTS HAVE NOT BEEN THOROUGHLY BRIEFED BY THE PARTIES. 

THE COURT OF APPEALS DETERMINED THAT DESPITE SEC 203 A SUFFICIENT
VOLUNTARY TRANSFER OF THE LOSS-CARRYBACK REFUND CLAIM COULD HAVE BEEN
MADE PRIOR TO BANKRUPTCY TO SATISFY SEC 70A(5), AND ON BALANCE WE SHARE
THIS VIEW.  IN MARTIN V. NATIONAL SURETY CO., 300 U.S. 588, 596, A
UNANIMOUS COURT HELD THAT SEC 203, IN SPITE OF ITS BROAD LANGUAGE,
"MUST BE INTERPRETED IN THE LIGHT OF ITS PURPOSE TO GIVE PROTECTION TO
THE GOVERNMENT" SO THAT BETWEEN THE PARTIES EFFECT MIGHT STILL BE GIVEN
TO AN ASSIGNMENT THAT FAILED TO COMPLY WITH THE STATUTE.  THE OPINION
REASONED THAT AFTER CLAIMS HAVE BEEN COLLECTED BY THE ASSIGNOR,
REQUIRING COMPLIANCE WITH THE INVALID ASSIGNMENT BY TRANSFER OF THE
RECOVERY TO THE ASSIGNEE PRESENTED NO DANGER THAT THE GOVERNMENT MIGHT
BECOME "EMBROILED IN CONFLICTING CLAIMS, WITH DELAY AND EMBARRASSMENT
AND THE CHANCE OF MULTIPLE LIABILITY."  300 U.S., AT 594.  WHILE OTHER
CIRCUMSTANCES ENCOURAGED MARTIN TO UPHOLD THE ASSIGNMENT AND THIS COURT
HAS NOT FACED THE PROBLEM HEAD-ON SINCE THAT TIME, WE FIND NO REASON TO
RETREAT NOW FROM THE BASIC HOLDING IN MARTIN WHICH WAS BOTH ANTICIPATED
AND FOLLOWED BY A NUMBER OF OTHER COURTS, STATE AND FEDERAL.  SEE
CALIFORNIA BANK V. UNITED STATES FID.  & GUAR.  CO., 129 F.2D 751;
ROYAL INDEM.  CO. V. UNITED STATES, 93 F. SUPP. 891; LEONARD V. WHALEY,
91 HUN 304, 36 N.Y. SUPP. 147; ANN., 12 A.L.R.2D 460, 468-475 (1950). 
AMONG THESE STATES IS TEXAS, WHOSE PRECEDENTS LEAVE LITTLE DOUBT THAT
AN ASSIGNMENT OF THE CLAIMS AT ISSUE WOULD BE ENFORCED IN EQUITY IN THE
NORMAL CASE.  TRINITY UNIV.  INS.  CO. V. FIRST STATE BANK, 143 TEX.
164, 183 S.W.2D 422; SEE UNITED HAY CO. V. FORD, 124 TEX. 213, 76
S.W.2D 480 (DICTUM).    IT SHOULD NOT BE PRETENDED THAT THIS
CONTEMPLATED "TRANSFER" IS ONE IN THE FULLEST SENSE THAT TERM PERMITS. 
FOR EXAMPLE, THIS COURT HAS RULED THAT ONE HOLDING A CLAIM INVALIDLY
ASSIGNED UNDER SEC 203 MAY NOT SUE THE GOVERNMENT UPON IT THOUGH HE
JOIN HIS ASSIGNOR AS WELL.  UNITED STATES V. SHANNON, 342 U.S. 288. 
YET IT REMAINS TRUE THAT A TEXAS COURT OF EQUITY COULD AND WOULD COMPEL
THE ASSIGNMENT OF ANY REFUND RECEIVED, IF INDEED IT MIGHT NOT TRY TO
COMPEL A RELUCTANT ASSIGNOR TO COLLECT THE CLAIM OR MAKE IT OVER BY A
VALID ASSIGNMENT WHEN THAT BECAME POSSIBLE.  THIS, WE BELIEVE, SUFFICES
TO MAKE THE SEGALS' CLAIMS TRANSFERABLE WITHIN THE MEANING OF SEC
70A(5).  CF. 4 COLLIER, BANKRUPTCY PARA 70.37, AT 1293, N. 6 (14TH ED.
1962).  AFFIRMED. 

FN1  30 STAT. 565, AS AMENDED, 11 U.S.C. SEC 110(A)(5) (1964 ED.). 
IN RELEVANT PART THAT SECTION PROVIDES:  "(A)  THE TRUSTEE OF THE
ESTATE OF A BANKRUPT  ...  SHALL  ...  BE VESTED BY OPERATION OF LAW
WITH THE TITLE OF THE BANKRUPT AS OF THE DATE OF THE FILING OF THE
PETITION INITIATING A PROCEEDING UNDER THIS TITLE, EXCEPT INSOFAR AS IT
IS TO PROPERTY WHICH IS HELD TO BE EXEMPT, TO ALL OF THE FOLLOWING
KINDS OF PROPERTY WHEREVER LOCATED  ...  (5) PROPERTY, INCLUDING RIGHTS
OF ACTION, WHICH PRIOR TO THE FILING OF THE PETITION HE COULD BY ANY
MEANS HAVE TRANSFERRED OR WHICH MIGHT HAVE BEEN LEVIED UPON AND SOLD
UNDER JUDICIAL PROCESS AGAINST HIM, OR OTHERWISE SEIZED, IMPOUNDED, OR
SEQUESTERED  ...  ." 

FN2  THE WIFE OF GERALD SEGAL AND THE ESTATE OF THE DECEASED WIFE OF
SAM SEGAL HAD UNSUCCESSFULLY URGED BEFORE THE REFEREE THEIR OWN
CONTINGENT RIGHTS TO HALF THE REFUNDS, BUT REVIEW ON THIS ISSUE WAS NOT
SOUGHT. 

FN3  REV. STAT. SEC 3477, AS AMENDED, 31 U.S.C. SEC 203 (1964 ED.). 
THE SECTION, SO FAR AS RELEVANT, STATES:  "ALL TRANSFERS AND
ASSIGNMENTS MADE OF ANY CLAIM UPON THE UNITED STATES, OR OF ANY PART OR
SHARE THEREOF, OR INTEREST THEREIN, WHETHER ABSOLUTE OR CONDITIONAL,
AND WHATEVER MAY BE THE CONSIDERATION THEREFOR  ...  SHALL BE
ABSOLUTELY NULL AND VOID, UNLESS THEY ARE FREELY MADE AND EXECUTED IN
THE PRESENCE OF AT LEAST TWO ATTESTING WITNESSES, AFTER THE ALLOWANCE
OF SUCH A CLAIM, THE ASCERTAINMENT OF THE AMOUNT DUE, AND THE ISSUING
OF A WARRANT FOR THE PAYMENT THEREOF." 

FN4  CONSIDERABLE COMMENTARY HAS BEEN DIRECTED TO THE PROBLEM. 
PRACTICALLY ALL THE WRITERS AGREE THAT IT IS DESIRABLE FOR THE TRUSTEE
TO RECEIVE THE REFUNDS ALTHOUGH A MINORITY CONTEND THAT EXISTING LAW
WILL NOT PERMIT THIS RESULT.  SEE HERZOG, BANKRUPTCY LAW - MODERN
TRENDS, 36 REF. J. 18 (1962); 60 NW. U.L. REV. 122 (1965); 40 NOTRE
DAME LAW.  118 (1964); 14 STAN.  L. REV. 380 (1962); 40 TEX. L. REV.
569 (1962); 42 TEX. L. REV. 542 (1964); 17 U. FLA. L. REV. 241 (1964);
16 U. MIAMI L. REV. 345 (1961); 110 U. PA. L. REV. 275 (1961). 

FN5  SO FAR AS LOSSES BY THE BANKRUPT AFTER FILING BUT BEFORE THE
YEAR'S END MIGHT INCREASE THE REFUND - A SITUATION NOT CLAIMED TO BE
PRESENT IN THIS CASE - THE COURT OF APPEALS SUGGESTED "A PRORATION OF
THE REFUND IN THE RATIO OF THE LOSSES BEFORE AND AFTER THE FILING DATE
WOULD BE INDICATED  ...  ."  336 F.2D, AT 302, N. 5. 

FN6  THE "CHOICE OF LAW" RULES RELEVANT TO THIS QUESTION ARE NOT IN
DISPUTE.  WHAT WOULD CONSTITUTE A "TRANSFER" IS A MATTER OF FEDERAL
LAW.  4 COLLIER, BANKRUPTCY PARA 70.15, AT 1035-1036 AND N. 25 (14TH
ED. 1962).  WHETHER AN ITEM COULD HAVE BEEN SO TRANSFERRED IS
DETERMINED GENERALLY BY STATE LAW, SAVE THAT ON RARE OCCASIONS
OVERRIDING FEDERAL LAW MAY CONTROL THIS DETERMINATION OR BEAR UPON IT.
ID., AT 1034-1035 AND N. 22.  THE SEGALS WERE TEXAS RESIDENTS, THE
BUSINESS WAS APPARENTLY BASED IN TEXAS, AND THE BANKRUPTCY COURT WAS
LOCATED THERE; NO OTHER STATE'S LAW IS CLAIMED TO BE RELEVANT. 

FN7  THIS EXCEPTION IS THE SIMPLEST REASON WHY SEC 203 DOES NOT
INTERFERE WITH THE VESTING IN THE TRUSTEE OF PROPERTY COMING WITHIN SEC
70A(5), FOR ALL TRANSFERS UNDER SEC 70A ARE EXPLICITLY BY "OPERATION OF
LAW," SEE N. 1, SUPRA; BUT OF COURSE PROPERTY MUST STILL QUALIFY AS
TRANSFERABLE WITHIN THE MEANING OF SEC 70A(5). 

FN8  SEE N. 1, SUPRA.  THE RESPONDENT HAS NOT ARGUED THAT UNDER TEXAS
LAW THE SEGALS' INCHOATE REFUND CLAIMS WOULD BE SUBJECT TO SUCH
JUDICIAL PROCESS, AND APPARENTLY IN TEXAS THE CLAIMS' CONTINGENT STATUS
WOULD RENDER THIS ARGUMENT QUITE DOUBTFUL.  SEE 26 TEX. JUR.  2D,
GARNISHMENT SEC 17 (1961), AND CASES THERE CITED. 

FN9  BANKRUPTCY ACT SEC 1(30), AS AMENDED BY THE CHANDLER ACT, 52
STAT. 842, AS AMENDED, 11 U.S.C. SEC 1(30) (1964 ED.), PERTINENTLY
READS:  "'TRANSFER' SHALL INCLUDE THE SALE AND EVERY OTHER AND
DIFFERENT MODE, DIRECT OR INDIRECT, OF DISPOSING OF OR OF PARTING WITH
PROPERTY OR WITH AN INTEREST THEREIN OR WITH THE POSSESSION THEREOF OR
OF FIXING A LIEN UPON PROPERTY OR UPON AN INTEREST THEREIN, ABSOLUTELY
OR CONDITIONALLY, VOLUNTARILY OR INVOLUNTARILY, BY OR WITHOUT JUDICIAL
PROCEEDINGS, AS A CONVEYANCE, SALE, ASSIGNMENT, PAYMENT, PLEDGE,
MORTGAGE, LIEN, ENCUMBRANCE, GIFT, SECURITY, OR OTHERWISE  ...  ." 
..END :



CALIFORNIA V. BUZARD 382 U.S. 386 


NO. 40.  ARGUED NOVEMBER 16, 1965.  - DECIDED JANUARY 18, 1966.  - 61
CAL. 2D 833, 395 P.2D 593, AFFIRMED. 


RESPONDENT, A RESIDENT OF WASHINGTON, WAS STATIONED IN CALIFORNIA
UNDER MILITARY ORDERS.  HE BOUGHT AN AUTOMOBILE WHILE TEMPORARILY
ASSIGNED IN ALABAMA, WHERE HE REGISTERED IT AND OBTAINED ALABAMA
LICENSE PLATES.  CALIFORNIA, ON HIS RETURN, INSISTED HE COULD NOT USE
THE ALABAMA PLATES IN THAT STATE BUT THAT HE HAD TO REGISTER THE CAR IN
CALIFORNIA AND OBTAIN CALIFORNIA PLATES.  WHEN HE SOUGHT TO DO SO HE
WAS ADVISED THAT HE HAD TO PAY A REGISTRATION FEE AND A 2% "LICENSE
FEE" UNDER THE STATE REVENUE AND TAX CODE.  HE REFUSED TO PAY THE
LATTER FEE.  RESPONDENT WAS THEREAFTER CONVICTED FOR VIOLATING A
CALIFORNIA MISDEMEANOR PROVISION BY DRIVING A VEHICLE ON CALIFORNIA
HIGHWAYS WITHOUT REGISTERING IT AND PAYING "APPROPRIATE FEES."  THE
CALIFORNIA SUPREME COURT REVERSED THE DISTRICT COURT OF APPEAL'S
AFFIRMANCE OF THE CONVICTION, ON THE GROUND THAT CALIFORNIA HAD
IMPROPERLY CONDITIONED REGISTRATION OF RESPONDENT'S CAR ON PAYMENT OF A
FEE FROM WHICH HE WAS EXEMPT UNDER SEC 514 OF THE SOLDIERS' AND
SAILORS' CIVIL RELIEF ACT OF 1940.  SECTION 514(2)(B) OF THE ACT
PROVIDES FOR EXEMPTION IN THE CASE OF MOTOR VEHICLES, PROVIDED THAT THE
FEE "REQUIRED BY" THE HOME STATE HAS BEEN PAID.  THE COURT REASONED
THAT IN RESPONDENT'S CASE NO SUCH PAYMENT TO THE HOME STATE WAS
NECESSARY SINCE THE DUTY TO REGISTER IS IMPOSED ONLY AS TO CARS DRIVEN
ON THE HOME STATE'S HIGHWAYS AND HE HAD NOT DRIVEN IN THE HOME STATE
THAT YEAR; THAT THE TERMS OF THE PROVISO WERE SATISFIED; AND THAT,
SINCE NO PAYMENT WAS REQUIRED, RESPONDENT WAS NOT SUBJECT TO THE
CALIFORNIA TAX.  HELD: 

1.  THE CONDITION IN SEC 514(2)(B) FOR THE EXEMPTION APPLICABLE TO
NONRESIDENT SERVICEMEN THAT THEY MUST HAVE PAID THE LICENSES, FEES, OR
EXCISES "REQUIRED BY" THE STATE OF RESIDENCE OR DOMICILE MEANS THAT
THEY MUST HAVE PAID SUCH LICENSES, FEES, OR EXCISES "OF" THAT STATE. 
IT WAS NOT CONGRESS' INTENTION TO PERMIT SERVICEMEN IN RESPONDENT'S
POSITION COMPLETELY TO AVOID REGISTRATION AND LICENSING REQUIREMENTS,
WHICH ARE WITHIN THE STATE'S POLICE POWER TO IMPOSE.  SERVICEMEN MAY BE
REQUIRED TO REGISTER THEIR CARS AND OBTAIN LICENSE PLATES IN HOST
STATES IF THEY DO NOT DO SO IN THEIR HOME STATES, AND MAY BE REQUIRED
TO PAY ALL TAXES ESSENTIAL THERETO.  PP. 391-392. 

2.  CONGRESS DID NOT INTEND TO INCLUDE IN SEC 514(2)(B) TAXES IMPOSED
ONLY TO DEFRAY THE COSTS OF HIGHWAY MAINTENANCE.  SINCE CALIFORNIA
AUTHORITIES HAD DETERMINED THAT CALIFORNIA'S 2% "LICENSE FEE" SERVES
PRIMARILY A REVENUE PURPOSE AND IS NOT ESSENTIAL TO ASSURE REGISTRATION
OF MOTOR VEHICLES, IT DOES NOT CONSITIUTE A "LICENSE, FEE, OR EXCISE"
WITHIN THE MEANING OF SEC 514(2)(B) AND NONRESIDENT SERVICEMEN ARE
THEREFORE EXEMPT FROM ITS IMPOSITION REGARDLESS OF WHETHER THEY ARE
REQUIRED TO REGISTER AND LICENSE THEIR MOTOR VEHICLES IN CALIFORNIA
BECAUSE OF A FAILURE TO DO SO IN THEIR HOME STATES.  PP. 392-396. 

3.  AS THE CALIFORNIA SUPREME COURT HELD, THE INVALIDITY AS TO THE
RESPONDENT OF THE 2% "LICENSE FEE" CONSTITUTED A VALID DEFENSE TO THE
MISDEMEANOR VIOLATION FOR WHICH HE WAS CONVICTED.  P. 396. 

CALIFORNIA V. BUZARD. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

56 STAT. 777, AS AMENDED, PROVIDES A NONRESIDENT SERVICEMAN PRESENT IN
A STATE IN COMPLIANCE WITH MILITARY ORDERS WITH A BROAD IMMUNITY FROM
THAT STATE'S PERSONAL PROPERTY AND INCOME TAXATION.  SECTION 514(2)(B)
OF THE ACT FURTHER PROVIDES THAT: 

"THE TERM 'TAXATION' SHALL INCLUDE BUT NOT BE LIMITED TO LICENSES,
FEES, OR EXCISES IMPOSED IN RESPECT TO MOTOR VEHICLES OR THE USE
THEREOF:  PROVIDED, THAT THE LICENSE, FEE, OR EXCISE REQUIRED BY THE
STATE  ...  OF WHICH THE PERSON IS A RESIDENT OR IN WHICH HE IS
DOMICILED HAS BEEN PAID."  (FN1) 

THE RESPONDENT HERE, CAPTAIN LYMAN E. BUZARD, WAS A RESIDENT AND
DOMICILIARY OF THE STATE OF WASHINGTON STATIONED AT CASTLE AIR FORCE
BASE IN CALIFORNIA.  HE HAD PURCHASED AN OLDSMOBILE WHILE ON TEMPORARY
DUTY IN ALABAMA, AND HAD OBTAINED ALABAMA LICENSE PLATES FOR IT BY
REGISTERING IT THERE.  ON HIS RETURN, CALIFORNIA REFUSED TO ALLOW HIM
TO DRIVE THE CAR ON CALIFORNIA HIGHWAYS WITH THE ALABAMA PLATES, AND,
SINCE HE HAD NOT REGISTERED OR OBTAINED LICENSE TAGS IN HIS HOME STATE,
DEMANDED THAT HE REGISTER AND OBTAIN LICENSE PLATES IN CALIFORNIA. 
WHEN HE SOUGHT TO DO SO, IT WAS INSISTED THAT HE PAY BOTH THE
REGISTRATION FEE OF $8 IMPOSED BY CALIFORNIA'S VEHICLE CODE (FN2) AND
THE CONSIDERABLY LARGER "LICENSE FEE" IMPOSED BY ITS REVENUE AND
TAXATION CODE.  (FN3)  THE LICENSE FEE IS CALCULATED AT "TWO (2)
PERCENT OF THE MARKET VALUE OF THE VEHICLE," SEC 10752, AND IS "IMPOSED
...  IN LIEU OF ALL TAXES ACCORDING TO VALUE LEVIED FOR STATE OR LOCAL
PURPOSES ON VEHICLES  ...  SUBJECT TO REGISTRATION UNDER THE VEHICLE
CODE  ...  ."  SEC 10758.  CAPTAIN BUZARD REFUSED TO PAY THE 2% FEE,
(FN4) AND WAS PROSECUTED AND CONVICTED FOR VIOLATING VEHICLE CODE SEC
4000, WHICH PROVIDES THAT "NO PERSON SHALL DRIVE  ...  ANY MOTOR
VEHICLE  ...  UPON A HIGHWAY UNLESS IT IS REGISTERED AND THE
APPROPRIATE FEES HAVE BEEN PAID UNDER THIS CODE."  THE CONVICTION,
AFFIRMED BY THE DISTRICT COURT OF APPEAL, 38 CAL. RPTR.  63, WAS
REVERSED BY THE SUPREME COURT OF CALIFORNIA, 61 CAL.  2D 833, 395 P.2D
593.  WE GRANTED CERTIORARI, 380 U.S. 931, TO CONSIDER WHETHER SEC 514
BARRED CALIFORNIA FROM EXACTING THE 2% TAX AS A CONDITION OF
REGISTERING AND LICENSING CAPTAIN BUZARD'S CAR.  WE CONCLUDE THAT IT
DID, AND AFFIRM. 

THE CALIFORNIA SUPREME COURT'S REVERSAL OF CAPTAIN BUZARD'S
CONVICTION DEPENDED ON ITS READING OF THE WORDS "REQUIRED BY" IN THE
PROVISO OF SEC 514(2)(B).  IN THE CONTEXT OF THE ENTIRE STATUTE AND ITS
PRIOR CONSTRUCTION, IT GAVE THOSE WORDS THE EFFECT OF BARRING THE HOST
STATE FROM IMPOSING A MOTOR VEHICLE "LICENSE, FEE, OR EXCISE" UNLESS
(1) THERE WAS SUCH A TAX OWING TO AND ASSESSED BY THE HOME STATE AND
(2) THAT TAX HAD NOT BEEN PAID BY THE SERVICEMAN.  THE MANDATORY
REGISTRATION STATUTE OF WASHINGTON, AS OF MOST STATES, IMPOSES THE DUTY
TO REGISTER ONLY AS TO CARS DRIVEN ON ITS HIGHWAYS, AND CAPTAIN BUZARD
HAD NOT DRIVEN HIS CAR IN WASHINGTON DURING THE REGISTRATION YEAR.  THE
COURT REASONED THAT THERE WAS THUS NO "LICENSE, FEE, OR EXCISE" OWING
TO AND ASSESSED BY HIS HOME STATE.  SINCE THERE WAS ON THIS VIEW NO TAX
"REQUIRED BY" WASHINGTON, THE COURT CONCLUDED THAT CALIFORNIA COULD NOT
IMPOSE ITS TAX, EVEN THOUGH CAPTAIN BUZARD HAD NOT PAID ANY WASHINGTON
TAX. 

IF THIS READING OF THE PHRASE "REQUIRED BY" IN THE PROVISO WERE
CORRECT, NO HOST STATE COULD IMPOSE ANY TAX ON THE LICENSING OR
REGISTRATION OF A SERVICEMAN'S MOTOR VEHICLE UNLESS HE HAD NOT PAID
TAXES ACTUALLY OWING TO AND ASSESSED BY HIS HOME STATE.  IF THE
SERVICEMAN WERE UNDER NO OBLIGATION TO HIS HOME STATE, AND PAYMENT OF
TAXES WAS A PREREQUISITE OF REGISTRATION OR LICENSING UNDER THE HOST
STATE STATUTES, THE HOST STATE AUTHORITIES MIGHT CONSIDER THEMSELVES
PRECLUDED FROM REGISTERING AND LICENSING HIS CAR.  THE CALIFORNIA COURT
DID NOT CONFRONT THIS CONSEQUENCE OF ITS CONSTRUCTION, BECAUSE IT
REGARDED THE RELEVANT PROVISIONS OF CALIFORNIA STATUTES AS ALLOWING
REGISTRATION AND LICENSING WHETHER OR NOT TAXES WERE PAID; HENCE, THE
POSSIBILITY OF UNREGISTERED CARS USING THE CALIFORNIA HIGHWAYS WAS
THOUGHT NOT TO BE AT ISSUE.  (FN5)  THE COURT'S CONSTRUCTION, HOWEVER,
PERTAINED TO THE FEDERAL, NOT THE STATE, STATUTE; IF CORRECT, IT WOULD
SIMILARLY RESTRICT THE IMPOSITION OF OTHER HOST STATES' REGISTRATION
AND LICENSING TAX PROVISIONS, WHETHER OR NOT THEY ARE AS FLEXIBLE AS
CALIFORNIA'S.  WE MUST THEREFORE CONSIDER THE CALIFORNIA COURT'S
CONSTRUCTION IN THE LIGHT OF THE POSSIBILITY THAT IN AT LEAST SOME HOST
STATES, IT WOULD PERMIT SERVICEMEN TO ESCAPE REGISTRATION REQUIREMENTS
ALTOGETHER. 

THUS SEEN, THE CALIFORNIA COURT'S CONSTRUCTION MUST BE REJECTED. 
ALTHOUGH LITTLE APPEARS IN THE LEGISLATIVE HISTORY TO EXPLAIN THE
PROVISO, (FN6) CONGRESS WAS CLEARLY CONCERNED THAT SERVICEMEN STATIONED
AWAY FROM THEIR HOME STATE SHOULD NOT DRIVE UNREGISTERED OR UNLICENSED
MOTOR VEHICLES.  EVERY STATE REQUIRED IN 1944, AND REQUIRES NOW, THAT
MOTOR VEHICLES USING ITS HIGHWAYS BE REGISTERED AND BEAR LICENSE
PLATES.  SUCH REQUIREMENTS ARE DESIGNED TO FACILITATE THE
IDENTIFICATION OF VEHICLE OWNERS AND THE INVESTIGATION OF ACCIDENTS,
THEFTS, TRAFFIC VIOLATIONS AND OTHER VIOLATIONS OF LAW.  COMMONLY, IF
NOT UNIVERSALLY, THE STATUTES IMPOSING THE REQUIREMENTS OF REGISTRATION
OR LICENSING ALSO PRESCRIBE FEES WHICH MUST BE PAID TO AUTHORIZE STATE
OFFICIALS TO ISSUE THE NECESSARY DOCUMENTS AND PLATES.  TO ASSURE THAT
SERVICEMEN COMPLY WITH THE REGISTRATION AND LICENSING LAWS OF SOME
STATE, WHETHER OF THEIR HOME STATE OR THE HOST STATE, WE CONSTRUE THE
PHRASE "LICENSE, FEE, OR EXCISE REQUIRED BY THE STATE  ...  " AS
EQUIVALENT TO "LICENSE, FEE, OR EXCISE OF THE STATE  ...  ."  THUS
READ, THE PHRASE MERELY INDICATES CONGRESS' RECOGNITION THAT, IN ONE
FORM OR ANOTHER, ALL STATES HAVE LAWS GOVERNING THE REGISTRATION AND
LICENSING OF MOTOR VEHICLES, AND THAT SUCH LAWS IMPOSE CERTAIN TAXES AS
CONDITIONS THEREOF.  THE SERVICEMAN WHO HAS NOT REGISTERED HIS CAR AND
OBTAINED LICENSE PLATES UNDER THE LAWS "OF" HIS HOME STATE, WHATEVER
THE REASON, MAY BE REQUIRED BY THE HOST STATE TO REGISTER AND LICENSE
THE CAR UNDER ITS LAWS. 

THE PROVISO IS TO BE READ, AT THE LEAST, AS ASSURING THAT SEC 514
WOULD NOT HAVE THE EFFECT OF PERMITTING SERVICEMEN TO ESCAPE THE
OBLIGATION OF REGISTERING AND LICENSING THEIR MOTOR VEHICLES.  IT HAS
BEEN ARGUED THAT SEC 514(2)(B) ALSO REPRESENTS A CONGRESSIONAL JUDGMENT
THAT SERVICEMEN SHOULD CONTRIBUTE TO THE COSTS OF HIGHWAY MAINTENANCE,
WHETHER AT HOME OR WHERE THEY ARE STATIONED, BY PAYING WHATEVER TAXES
THE STATE OF REGISTRATION MAY LEVY FOR THAT PURPOSE.  WE CONCLUDE,
HOWEVER, THAT NO SUCH PURPOSE IS REVEALED IN THE SECTION OR ITS
LEGISLATIVE HISTORY AND THAT ITS INTENT IS LIMITED TO THE PURPOSE OF
ASSURING REGISTRATION.  SINCE AT LEAST THE 2% TAX HERE INVOLVED HAS
BEEN HELD NOT ESSENTIAL TO THAT PURPOSE AS A MATTER OF STATE LAW, WE
AFFIRM THE CALIFORNIA SUPREME COURT'S JUDGMENT. 

IT IS PLAIN AT THE OUTSET THAT CALIFORNIA MAY COLLECT THE 2% TAX ONLY
IF IT IS A "LICENSE, FEE, OR EXCISE" ON A MOTOR VEHICLE OR ITS USE. 
THE VERY PURPOSE OF SEC 514 IN BROADLY FREEING THE NONRESIDENT
SERVICEMAN FROM THE OBLIGATION TO PAY PROPERTY AND INCOME TAXES WAS TO
RELIEVE HIM OF THE BURDEN OF SUPPORTING THE GOVERNMENTS OF THE STATES
WHERE HE WAS PRESENT SOLELY IN COMPLIANCE WITH MILITARY ORDERS.  THE
STATUTE OPERATES WHETHER OR NOT THE HOME STATE IMPOSES OR ASSESSES SUCH
TAXES AGAINST HIM.  AS WE SAID IN DAMERON V. BRODHEAD, 345 U.S. 322,
326, "  ...  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."  MOTOR VEHICLES WERE INCLUDED AS PERSONAL
PROPERTY COVERED BY THE STATUTE.  EVEN IF CONGRESS MEANT TO DO MORE BY
THE PROVISO OF SEC 514(2)(B) THAN INSURE THAT THE CAR WOULD BE
REGISTERED AND LICENSED IN ONE OF THE TWO STATES, IT WOULD BE
INCONSISTENT WITH THE BROAD PURPOSES OF SEC 514 TO READ SUBSECTION
(2)(B) AS ALLOWING THE HOST STATE TO IMPOSE TAXES OTHER THAN "LICENSES,
FEES, OR EXCISES" WHEN THE "LICENSE, FEE, OR EXCISE" OF THE HOME STATE
IS NOT PAID.  (FN7) 

ALTHOUGH THE REVENUE AND TAXATION CODE EXPRESSLY DENOMINATES THE TAX
"A LICENSE FEE," SEC 10751, THERE IS NO PERSUASIVE EVIDENCE CONGRESS
MEANT STATE LABELS TO BE CONCLUSIVE; THEREFORE, WE MUST DECIDE AS A
MATTER OF FEDERAL LAW WHAT "LICENSES, FEES, OR EXCISES" MEANS IN THE
STATUTE.  SEE STORAASLI V. MINNESOTA, 283 U.S. 57, 62.  THERE IS
NOTHING IN THE LEGISLATIVE HISTORY TO SHOW THAT CONGRESS INTENDED A TAX
NOT ESSENTIAL TO ASSURE REGISTRATION, SUCH AS THE CALIFORNIA "LICENSE
FEE," TO FALL WITHIN THE CATEGORY OF "LICENSES, FEES, OR EXCISES" HOST
STATES MIGHT IMPOSE IF HOME STATE REGISTRATION WAS NOT EFFECTED.  WHILE
IT IS TRUE THAT A FEW STATE TAXES IN EFFECT IN 1944, LIKE THE
CALIFORNIA 2% "LICENSE FEE," WERE IMPOSED SOLELY FOR REVENUE PURPOSES,
THE GREAT MAJORITY OF STATE TAXES ALSO SERVED TO ENFORCE REGISTRATION
AND LICENSING STATUTES.  (FN8)  NO DISCUSSION OF EXISTING STATE LAWS
APPEARS IN THE COMMITTEE REPORTS.  THERE IS THUS NO INDICATION THAT
CONGRESS WAS AWARE THAT ANY STATE REQUIRED THAT SERVICEMEN CONTRIBUTE
TO THE COSTS OF HIGHWAY MAINTENANCE WITHOUT REGARD TO THE RELEVANCE OF
SUCH REQUIREMENTS TO THE NONREVENUE PURPOSES OF STATE MOTOR VEHICLE
LAWS. 

THE CONCLUSION THAT CONGRESS LACKED INFORMATION ABOUT THE CALIFORNIA
PRACTICE DOES NOT PRECLUDE A DETERMINATION THAT IT MEANT TO INCLUDE
SUCH TAXES, LEVIED ONLY FOR REVENUE, AS "LICENSES, FEES, OR EXCISES." 
BUT IN DECIDING THAT QUESTION IN THE ABSENCE OF AFFIRMATIVE INDICATION
OF CONGRESSIONAL MEANING, WE MUST CONSIDER THE OVERALL PURPOSE OF SEC
514 AS WELL AS THE WORDS OF SUBSECTION (2)(B).  TAXES LIKE THE
CALIFORNIA 2% "LICENSE FEE" SERVE PRIMARILY A REVENUE INTEREST,
NARROWER IN PURPOSE BUT NO DIFFERENT IN KIND FROM TAXES RAISED TO
DEFRAY THE GENERAL EXPENSES OF GOVERNMENT.  (FN9)  IT IS FROM THE
BURDEN OF TAXES SERVING SUCH ENDS THAT NONRESIDENT SERVICEMEN WERE TO
BE FREED, IN THE MAIN, WITHOUT REGARD TO WHETHER THEIR HOME STATES
IMPOSED OR SOUGHT TO COLLECT SUCH TAXES FROM THEM.   DAMERON V.
BRODHEAD, SUPRA.  IN RECENT AMENDMENTS, CONGRESS HAS RECONFIRMED THIS
BASIC PURPOSE.  (FN10)  WE DO NOT THINK THAT SUBSECTION (2)(B) SHOULD
BE READ AS IMPINGING UPON IT.  RATHER, READING THE ACT, AS WE MUST,
"WITH AN EYE FRIENDLY TO THOSE WHO DROPPED THEIR AFFAIRS TO ANSWER
THEIR COUNTRY'S CALL," LE MAISTRE V. LEFFERS, 333 U.S. 1, 6, WE
CONCLUDE THAT SUBSECTION (2)(B) REFERS ONLY TO THOSE TAXES WHICH ARE
ESSENTIAL TO THE FUNCTIONING OF THE HOST STATE'S LICENSING AND
REGISTRATION LAWS IN THEIR APPLICATION TO THE MOTOR VEHICLES OF
NONRESIDENT SERVICEMEN.  WHETHER THE 2% TAX IS WITHIN THE REACH OF THE
FEDERAL IMMUNITY IS THUS NOT TO BE TESTED, AS CALIFORNIA ARGUES, BY
WHETHER ITS INCLUSION FRUSTRATES THE ADMINISTRATION OF CALIFORNIA'S TAX
POLICIES.  THE TEST, RATHER, IS WHETHER THE INCLUSION WOULD DENY THE
STATE POWER TO ENFORCE THE NONREVENUE PROVISIONS OF STATE MOTOR VEHICLE
LEGISLATION. 

WHATEVER MAY BE THE CASE UNDER THE REGISTRATION AND LICENSING
STATUTES OF OTHER STATES, CALIFORNIA AUTHORITIES HAVE MADE IT CLEAR
THAT THE CALIFORNIA 2% TAX IS NOT IMPOSED AS A TAX ESSENTIAL TO THE
REGISTRATION AND LICENSING OF THE SERVICEMAN'S MOTOR VEHICLE.  (FN11)
NOT ONLY DID THE CALIFORNIA SUPREME COURT REGARD THE STATUTES AS
PERMITTING REGISTRATION WITHOUT PAYMENT OF THE TAX, BUT THE DISTRICT
COURT OF APPEAL, IN ANOTHER CASE GROWING OUT OF THIS CONTROVERSY,
EXPRESSLY HELD THAT "THE REGISTRATION STATUTE HAS AN ENTIRELY DIFFERENT
PURPOSE FROM THE LICENSE FEE STATUTES, AND IT IS CLEARLY SEVERABLE FROM
THEM."  BUZARD V. JUSTICE COURT, 198 CAL. APP. 2D 814, 817, 18 CAL.
RPTR.  348, 349-350.  (FN12)  THE CALIFORNIA SUPREME COURT ALSO HELD,
IN EFFECT, THAT INVALIDITY OF THE "LICENSE FEE" AS APPLIED WAS A VALID
DEFENSE TO PROSECUTION UNDER VEHICLE CODE SEC 4000.  IN THESE
CIRCUMSTANCES, AND SINCE THE RECORD IS REASONABLY TO BE READ AS SHOWING
THAT CAPTAIN BUZARD WOULD HAVE REGISTERED HIS OLDSMOBILE BUT FOR THE
DEMAND FOR PAYMENT OF THE 2% TAX, THE CALIFORNIA SUPREME COURT'S
REVERSAL OF HIS CONVICTION IS AFFIRMED. 

FN1  50 U.S.C. APP. SEC 574(2)(B).  SECTION 514, 50 U.S.C. APP. SEC
574, READS IN RELEVANT PART AS FOLLOWS: 

"(1)  FOR THE PURPOSES OF TAXATION IN RESPECT OF ANY PERSON, OR OF
HIS PERSONAL PROPERTY, INCOME, OR GROSS INCOME, BY ANY STATE,  ...
SUCH PERSON SHALL NOT BE DEEMED TO HAVE LOST A RESIDENCE OR DOMICILE IN
ANY STATE,  ...  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,  ...  WHILE, AND SOLELY BY REASON OF BEING, SO
ABSENT.  FOR THE PURPOSES OF TAXATION IN RESPECT OF THE PERSONAL
PROPERTY, INCOME, OR GROSS INCOME OF ANY SUCH PERSON BY ANY STATE,  ...
OF WHICH SUCH PERSON IS NOT A RESIDENT OR IN WHICH HE IS NOT
DOMICILED,  ... 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  ...  .    "(2)  WHEN
USED IN THIS SECTION, (A) THE TERM 'PERSONAL PROPERTY' SHALL INCLUDE
TANGIBLE AND INTANGIBLE PROPERTY (INCLUDING MOTOR VEHICLES), AND (B)
THE TERM 'TAXATION' SHALL INCLUDE BUT NOT BE LIMITED TO LICENSES, FEES,
OR EXCISES IMPOSED IN RESPECT TO MOTOR VEHICLES OR THE USE THEREOF:
PROVIDED, THAT THE LICENSE, FEE, OR EXCISE REQUIRED BY THE STATE  ...
OF WHICH THE PERSON IS A RESIDENT OR IN WHICH HE IS DOMICILED HAS BEEN
PAID."  (50 U.S.C. APP. SEC 574.) 

THE UNITALICIZED TEXT WAS ENACTED IN 1942, 56 STAT. 777.  CONCERN
WHETHER NONRESIDENT SERVICEMEN WERE SUFFICIENTLY PROTECTED FROM
PERSONAL PROPERTY TAXATION BY HOST STATES LED TO A CLARIFYING AMENDMENT
IN 1944, 58 STAT. 722.  THAT AMENDMENT GAVE SEC 514 ITS TWO
SUBSECTIONS.  THE ITALICIZED WORDS IN SUBSECTION (1) ARE THE RELEVANT
ADDITIONS TO THE ORIGINAL SECTION.  SUBSECTION (2) WAS ENTIRELY NEW. 

FN2  THE RELEVANT PROVISIONS OF THE VEHICLE CODE, ENACTED IN 1935,
AND RECODIFIED IN 1959, ARE SECS 4000, 4750 AND 9250. 

FN3  THE RELEVANT PROVISIONS OF THE REVENUE AND TAXATION CODE,
ENACTED IN 1939, ARE SECS 10751, 10752 AND 10758. 

FN4  CAPTAIN BUZARD DID NOT HAVE SUFFICIENT CASH TO PAY THE $8
REGISTRATION FEE AND THE APPROXIMATELY $100 DEMANDED IN PAYMENT OF THE
2% TAX AND PENALTIES.  HE TESTIFIED WITHOUT CONTRADICTION THAT AT THAT
TIME HE "DIDN'T REFUSE TO PAY" THE TAX.  "HE (THE REGISTRATION OFFICER)
SAID, 'DO YOU WANT TO PAY IT NOW?'  AND I SAID, 'I DON'T HAVE THE MONEY
IN CASH WITH ME, WILL YOU ACCEPT A CHECK?'  AND HE SAID, 'NO.'"  IT WAS
THEREAFTER THAT CAPTAIN BUZARD ASSERTED HIS CONTENTION THAT THE TAX
COULD NOT LEGALLY BE ASSESSED. 

FN5  "DEFENDANT DOES NOT CONTEND THAT CALIFORNIA MAY NOT, AS AN
EXERCISE OF ITS POLICE POWER, REQUIRE HIM TO REGISTER HIS AUTOMOBILE. 
IN FACT, HIS ATTEMPT TO REGISTER THE VEHICLE INDEPENDENTLY OF THE
PAYMENT OF FEES AND PENALTIES WAS FRUSTRATED BY THE DEPARTMENT. 
DEFENDANT'S POSITION IS SIMPLY THAT THE SOLDIERS' AND SAILORS' CIVIL
RELIEF ACT OF 1940  ...  PROHIBITS THE COLLECTION OF SUCH FEES AS AN
INCIDENT TO A PROPER EXERCISE OF THE POLICE POWER OR OTHERWISE.  AS A
CONSEQUENCE OF THE NARROW QUESTION THUS RAISED BY THE DEFENDANT,
CONTENTIONS WHICH LOOK TO THE PURPOSE OF REGISTRATION IN FURTHERANCE OF
PROPER LAW ENFORCEMENT AND ADMINISTRATION FAIL TO ADDRESS THEMSELVES TO
THE ISSUE."  61 CAL. 2D, AT 835, 395 P.2D, AT 594. 

THE STATUTORY SCHEME SEVERS THE 2% TAX PROVISION OF THE REVENUE AND
TAXATION CODE FROM THE FLAT REGISTRATION FEE OF $8 REQUIREMENT IN THE
VEHICLE CODE.  VEHICLE CODE SEC 4000, UNDER WHICH RESPONDENT WAS
PROSECUTED, REFERS ONLY TO PAYMENTS OF "THE APPROPRIATE FEES  ...
UNDER THIS CODE" AND VEHICLE CODE SEC 4750 REFERS ONLY TO "THE REQUIRED
FEE."  THE SEVERABILITY CLAUSE OF THE REVENUE AND TAXATION CODE, SEC
26, PROVIDES THAT IF APPLICATION OF ANY PROVISION OF THAT CODE TO "ANY
PERSON OR CIRCUMSTANCE, IS HELD INVALID  ...  THE APPLICATION OF THE
PROVISION TO OTHER PERSONS OR CIRCUMSTANCES, IS NOT AFFECTED." 

FN6  H.R. REP. NO. 1514, 78TH CONG., 2D SESS.; S. REP. NO. 959, 78TH
CONG., 2D SESS.  THERE WERE NO DEBATES. 

FN7  CONTRA, WHITING V. CITY OF PORTSMOUTH, 202 VA. 609, 118 S.E.2D
505; SNAPP V. NEAL, 250 MISS.  597, 164 SO. 2D 752, REVERSED TODAY,
POST, P. 397. 

FN8  MOST STATES IN 1944, AS NOW, CONDITIONED REGISTRATION AND THE
ISSUANCE OF LICENSE PLATES UPON THE PAYMENT OF A REGISTRATION FEE
MEASURED BY HORSEPOWER, WEIGHT OR SOME COMBINATION OF THESE FACTORS. 
SEE, E.G., DEL. REV. CODE 1935, SEC 5564 (WEIGHT); PAGE'S OHIO GEN.
CODE (1945 REPL.  VOL.), SEC 6292 (WEIGHT); MO. REV. STAT. ANN. 1942,
SEC 8369 (HORSEPOWER); N.J. REV. STAT. 1937, SEC 39:3-8 (HORSEPOWER);
CONN. GEN. STAT. REV. 1930, SEC 1578 (CUBIC DISPLACEMENT); IOWA CODE
1939, SEC 5008.05 (VALUE AND WEIGHT); DIGEST ARK. STAT. 1937, SEC 6615
(HORSEPOWER AND WEIGHT). 

OTHER STATES CHARGED A FLAT FEE.  SEE, E.G., ORE.  COMP.  LAWS 1940,
SECS 115-105, 115-106; ARIZ. CODE 1939, SEC 66-256; ALASKA COMP. LAWS
1933, SEC 3151. 

A FEW STATES, SUCH AS CALIFORNIA, CHARGED BOTH A FLAT REGISTRATION
FEE AND A LARGER, VARIABLE "LICENSE FEE" MEASURED BY VEHICLE VALUE. 
SEE, E.G., CAL. VEHICLE CODE 1935, SECS 140, 148, 370, CAL. REV. &
TAX.  CODE 1939, SECS 10751-10758; REMINGTON'S WASH. REV. STAT.  (1937
REPL.  VOL.), SECS 6312-16, 6312-102; COMPARE MISS.  CODE 1942, SECS
9352-19, 9352-03 (CERTIFICATE OF PAYMENT OF AD VALOREM TAX REQUIRED OF
THOSE WHO MUST PAY IT); WYO. COMP.  STAT. 1945, SECS 60-103, 60-104
(FLAT FEE PLUS AD VALOREM FEE; AD VALOREM FEE TO BE PAID ONLY BY
PERSONS ACTUALLY DRIVING IN THE STATE). 

THE STATUTES COMMONLY RECITED THAT THESE FEES, WHATEVER THEIR
MEASURE, WERE IMPOSED FOR THE PRIVILEGE OF USING THE STATE'S HIGHWAYS;
THE PROCEEDS WERE USUALLY DEVOTED TO HIGHWAY PURPOSES.  EVEN WHERE
PROPERTY VALUE WAS THE MEASURE OF THE FEES, THEY WERE CHARACTERIZED AS
PRIVILEGE, NOT PROPERTY, TAXES.  SEE, E.G., INGELS V. RILEY, 5 CAL. 2D
154, 53 P.2D 939 (1936). 

FN9  INDEED, THE 2% "LICENSE FEE" WAS ADOPTED IN 1935 AS A SUBSTITUTE
FOR LOCAL AD VALOREM TAXATION OF AUTOMOBILES, WHICH HAD PROVED
ADMINISTRATIVELY IMPRACTICAL.  STOCKWELL, STUDIES IN CALIFORNIA STATE
TAXATION, 1910-1935, AT PP. 108-110 (1939); FINAL REPORT OF THE
CALIFORNIA TAX COMMISSION 102 (1929).  ITS BASIS REMAINS THE LOCATION
OF THE AUTOMOBILE IN THE STATE. 

FN10  PUB. L. SEC 87-771, 76 STAT. 768. 

FN11  IT IS NOT CLEAR FROM THE CALIFORNIA COURTS' OPINIONS WHETHER
THEY REGARD THE $8 REGISTRATION FEE AS A FEE ESSENTIAL TO THE
REGISTRATION AND LICENSING OF THE MOTOR VEHICLE.  THEREFORE THAT
QUESTION REMAINS OPEN FOR DETERMINATION IN THE STATE COURTS. 

FN12  SEE NOTE 5, SUPRA.
..END :





















SNAPP V. NEAL 382 U.S. 397 


NO. 16.  ARGUED NOVEMBER 15-16, 1965.  - DECIDED JANUARY 18, 1966.  -
250 MISS.  597, 164 SO. 2D 752, REVERSED. 


IMPOSITION BY A HOST STATE OF AN AD VALOREM TAX ON A NONRESIDENT
SERVICEMAN'S HOUSE TRAILER, WHERE THE SERVICEMAN HAD PAID NO "LICENSE,
FEE, OR EXCISE" TO HIS HOME STATE, HELD INVALID UNDER SEC 514 OF THE
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, AN AD VALOREM TAX NOT
BEING WITHIN THE CATEGORY OF A MOTOR VEHICLE "LICENSE, FEE, OR EXCISE"
UNDER SEC 514(2)(B).  CALIFORNIA V. BUZARD, ANTE, P. 386, FOLLOWED.  P.
398. 

SNAPP V. NEAL, STATE AUDITOR, ET AL. 

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO CALIFORNIA V. BUZARD, ANTE, P. 386,
DECIDED TODAY.  THE STATE OF MISSISSIPPI LEVIED AN AD VALOREM TAX
AGAINST A HOUSE TRAILER OF THE PETITIONER, SERGEANT JESSE E. SNAPP. 
SERGEANT SNAPP WAS STATIONED UNDER MILITARY ORDERS AT CRYSTAL SPRINGS
AIR FORCE BASE, MISSISSIPPI.  HE BOUGHT THE TRAILER IN MISSISSIPPI AND
MOVED IT ON MISSISSIPPI HIGHWAYS TO A PRIVATE TRAILER PARK NEAR THE AIR
FORCE BASE WHERE HE PLACED IT ON MOVABLE CONCRETE BLOCKS AND USED IT AS
A HOME.  HE DID NOT REGISTER OR LICENSE THE TRAILER, OR PAY ANY TAXES
ON IT IN HIS HOME STATE OF SOUTH CAROLINA.  HE CHALLENGED THE
MISSISSIPPI TAX AS A TAX ON HIS PERSONAL PROPERTY PROHIBITED BY THE
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1178, AS
AMENDED IN 1944, SEC 514, 50 U.S.C. APP. SEC 574.*  THE MISSISSIPPI
SUPREME COURT SUSTAINED THE LEVY ON THE GROUND THAT, AS APPLIED TO
MOTOR VEHICLES, SEC 514(2)(B) CONDITIONS THE NONRESIDENT SERVICEMAN'S
IMMUNITY FROM ITS AD VALOREM TAX ON THE SERVICEMAN'S PRIOR PAYMENT OF
THE FEES IMPOSED BY HIS HOME STATE.  THE COURT REASONED THAT SINCE SEC
514(2)(B) "STIPULATES EXPRESSLY THAT THE TAXATION SHOULD NOT BE LIMITED
TO PRIVILEGE AND EXCISE TAXES, IT NECESSARILY FOLLOWS THAT THE
PROHIBITED TAX MUST INCLUDE THE ONLY OTHER GENERAL BRANCH OF TAXATION,
THAT IS, AD VALOREM.  IT IS EMPHASIZED THAT THE FEDERAL STATUTE IS
MEANT TO INCLUDE AD VALOREM TAXES AS BEING ONE OF THE TAXES FOR WHICH
THE SERVICEMAN IS IMMUNE, PROVIDED HE COMPLIES WITH THE LAWS OF HIS
HOME STATE CONCERNING REGISTRATION OF THE MOTOR VEHICLE.  IF HE FAILS
TO SO COMPLY, AS WAS DONE IN THIS CASE AT BAR, HE IS NO LONGER ENTITLED
TO PROTECTION OF THE ACT OF CONGRESS."  250 MISS.  597, AT 614-615, 164
SO. 2D 752, AT 760.  WE GRANTED CERTIORARI, 380 U.S. 931.  WE REVERSE
ON THE AUTHORITY OF OUR HOLDING TODAY IN BUZARD THAT THE FAILURE TO PAY
THE MOTOR VEHICLE "LICENSE, FEE, OR EXCISE" OF THE HOME STATE ENTITLES
THE HOST STATE ONLY TO EXACT MOTOR VEHICLE TAXES QUALIFYING AS
"LICENSES, FEES, OR EXCISES"; THE AD VALOREM TAX, AS THE MISSISSIPPI
SUPREME COURT ACKNOWLEDGED, IS NOT SUCH AN EXACTION.  WE THUS HAVE NO
OCCASION TO DECIDE WHETHER THE MISSISSIPPI SUPREME COURT WAS CORRECT IN
HOLDING THAT THE HOUSE TRAILER WAS A "MOTOR VEHICLE" WITHIN THE MEANING
OF SEC 514(2)(B).  REVERSED. 

*THE RELEVANT TEXT OF THE STATUTE IS IN CALIFORNIA V. BUZARD, ANTE,
P. 388, N. 1. 
..END :

















EVANS V. NEWTON 382 U.S. 296 


NO. 61.  ARGUED NOVEMBER 9-10, 1965.  - DECIDED JANUARY 17, 1966.  - 220
GA. 280, 138 S.E.2D 573, REVERSED. 


A TRACT OF LAND WAS WILLED IN TRUST TO THE MAYOR AND CITY COUNCIL OF
MACON, GEORGIA, AS A PARK FOR WHITE PEOPLE, TO BE CONTROLLED BY A WHITE
BOARD OF MANAGERS.  WHEN THE CITY ULTIMATELY DESEGREGATED THE PARK, THE
INDIVIDUAL MANAGERS BROUGHT THIS SUIT IN A STATE COURT AGAINST THE CITY
AND THE TRUSTEES OF RESIDUARY BENEFICIARIES AND ASKED FOR THE CITY'S
REMOVAL AS TRUSTEE AND THE APPOINTMENT OF PRIVATE TRUSTEES TO ENFORCE
THE RACIAL LIMITATIONS OF THE WILL.  THE CITY, WHICH HAD ALLEGED THAT
IT COULD NOT LEGALLY ENFORCE SEGREGATION, ASKED TO RESIGN AS TRUSTEE
AFTER INTERVENTION OF NEGRO CITIZENS WHO CLAIMED THAT THE RACIAL
LIMITATIONS VIOLATED FEDERAL LAW.  OTHER HEIRS OF THE TESTATOR WHO HAD
ALSO INTERVENED ASKED ALONG WITH THE INDIVIDUAL DEFENDANTS FOR
REVERSION OF THE PROPERTY IF THE PRAYER OF THE PETITION WAS DENIED. 
THE GEORGIA COURT, WITHOUT PASSING ON THE HEIRS' OTHER CLAIMS, ACCEPTED
THE CITY'S RESIGNATION AS TRUSTEE AND APPOINTED THREE NEW TRUSTEES. 
THE NEGRO INTERVENORS APPEALED.  THE GEORGIA SUPREME COURT AFFIRMED,
HOLDING THAT THE TESTATOR HAD A RIGHT TO LEAVE HIS PROPERTY TO A
LIMITED CLASS AND THAT CHARITABLE TRUSTS ARE SUBJECT TO THE SUPERVISION
OF AN EQUITY COURT, WHICH COULD APPOINT NEW TRUSTEES TO AVOID FAILURE
OF THE TRUST.  HELD: 

1.  WHERE PRIVATE INDIVIDUALS OR GROUPS EXERCISE POWERS OR CARRY ON
FUNCTIONS GOVERNMENTAL IN NATURE, THEY BECOME AGENCIES OR
INSTRUMENTALITIES OF THE STATE AND SUBJECT TO THE FOURTEENTH
AMENDMENT.  P. 299. 

2.  WHERE THE TRADITION OF MUNICIPAL CONTROL AND MAINTENANCE HAD BEEN
PERPETUATED FOR MANY YEARS, PROOF OF THE SUBSTITUTION OF TRUSTEES IS
INSUFFICIENT PER SE TO DIVEST THE PARK OF ITS PUBLIC CHARACTER.  P.
301. 

3.  THE SERVICES RENDERED BY A PARK ARE MUNICIPAL IN NATURE AND,
UNDER THE CIRCUMSTANCES OF THIS CASE, THE PARK IS SUBJECT TO THE EQUAL
PROTECTION REQUIREMENTS OF THE FOURTEENTH AMENDMENT.  PP. 301-302. 

EVANS ET AL. V. NEWTON ET AL. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1911 UNITED STATES SENATOR AUGUSTUS O. BACON EXECUTED A WILL THAT
DEVISED TO THE MAYOR AND COUNCIL OF THE CITY OF MACON, GEORGIA, A TRACT
OF LAND WHICH, AFTER THE DEATH OF THE SENATOR'S WIFE AND DAUGHTERS, WAS
TO BE USED AS "A PARK AND PLEASURE GOUND" FOR WHITE PEOPLE ONLY, THE
SENATOR STATING IN THE WILL THAT WHILE HE HAD ONLY THE KINDEST FEELING
FOR THE NEGROES HE WAS OF THE OPINION THAT "IN THEIR SOCIAL RELATIONS
THE TWO RACES (WHITE AND NEGRO) SHOULD BE FOREVER SEPARATE."  THE WILL
PROVIDED THAT THE PARK SHOULD BE UNDER THE CONTROL OF A BOARD OF
MANAGERS OF SEVEN PERSONS, ALL OF WHOM WERE TO BE WHITE.  THE CITY KEPT
THE PARK SEGREGATED FOR SOME YEARS BUT IN TIME LET NEGROES USE IT,
TAKING THE POSITION THAT THE PARK WAS A PUBLIC FACILITY WHICH IT COULD
NOT CONSTITUTIONALLY MANAGE AND MAINTAIN ON A SEGREGATED BASIS.  (FN1) 

THEREUPON, INDIVIDUAL MEMBERS OF THE BOARD OF MANAGERS OF THE PARK
BROUGHT THIS SUIT IN A STATE COURT AGAINST THE CITY OF MACON AND THE
TRUSTEES OF CERTAIN RESIDUARY BENEFICIARIES OF SENATOR BACON'S ESTATE,
ASKING THAT THE CITY BE REMOVED AS TRUSTEE AND THAT THE COURT APPOINT
NEW TRUSTEES, TO WHOM TITLE TO THE PARK WOULD BE TRANSFERRED.  THE CITY
ANSWERED, ALLEGING IT COULD NOT LEGALLY ENFORCE RACIAL SEGREGATION IN
THE PARK.  THE OTHER DEFENDANTS ADMITTED THE ALLEGATION AND REQUESTED
THAT THE CITY BE REMOVED AS TRUSTEE. 

SEVERAL NEGRO CITIZENS OF MACON INTERVENED, ALLEGING THAT THE RACIAL
LIMITATION WAS CONTRARY TO THE LAWS AND PUBLIC POLICY OF THE UNITED
STATES, AND ASKING THAT THE COURT REFUSE TO APPOINT PRIVATE TRUSTEES. 
THEREAFTER THE CITY RESIGNED AS TRUSTEE AND AMENDED ITS ANSWER
ACCORDINGLY.  MOREOVER, OTHER HEIRS OF SENATOR BACON INTERVENED AND
THEY AND THE DEFENDANTS OTHER THAN THE CITY ASKED FOR REVERSION OF THE
TRUST PROPERTY TO THE BACON ESTATE IN THE EVENT THAT THE PRAYER OF THE
PETITION WERE DENIED. 

THE GEORGIA COURT ACCEPTED THE RESIGNATION OF THE CITY AS TRUSTEE AND
APPOINTED THREE INDIVIDUALS AS NEW TRUSTEES, FINDING IT UNNECESSARY TO
PASS ON THE OTHER CLAIMS OF THE HEIRS.  ON APPEAL BY THE NEGRO
INTERVENORS, THE SUPREME COURT OF GEORGIA AFFIRMED, HOLDING THAT
SENATOR BACON HAD THE RIGHT TO GIVE AND BEQUEATH HIS PROPERTY TO A
LIMITED CLASS, THAT CHARITABLE TRUSTS ARE SUBJECT TO SUPERVISION OF A
COURT OF EQUITY, AND THAT THE POWER TO APPOINT NEW TRUSTEES SO THAT THE
PURPOSE OF THE TRUST WOULD NOT FAIL WAS CLEAR.  220 GA. 280, 138 S.E.2D
573.  THE CASE IS HERE ON A WRIT OF CERTIORARI.  380 U.S. 971. 

THERE ARE TWO COMPLEMENTARY PRINCIPLES TO BE RECONCILED IN THIS
CASE.  ONE IS THE RIGHT OF THE INDIVIDUAL TO PICK HIS OWN ASSOCIATES SO
AS TO EXPRESS HIS PREFERENCES AND DISLIKES, AND TO FASHION HIS PRIVATE
LIFE BY JOINING SUCH CLUBS AND GROUPS AS HE CHOOSES.  THE OTHER IS THE
CONSTITUTIONAL BAN IN THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT AGAINST STATE-SPONSORED RACIAL INEQUALITY, WHICH OF COURSE
BARS A CITY FROM ACTING AS TRUSTEE UNDER A PRIVATE WILL THAT SERVES THE
RACIAL SEGREGATION CAUSE.  PENNSYLVANIA V. BOARD OF TRUSTS, 353 U.S.
230.  A PRIVATE GOLF CLUB, HOWEVER, RESTRICTED TO EITHER NEGRO OR WHITE
MEMBERSHIP IS ONE EXPRESSION OF FREEDOM OF ASSOCIATION.   BUT A
MUNICIPAL GOLF COURSE THAT SERVES ONLY ONE RACE IS STATE ACTIVITY
INDICATING A PREFERENCE ON A MATTER AS TO WHICH THE STATE MUST BE
NEUTRAL.  (FN2)  WHAT IS "PRIVATE" ACTION AND WHAT IS "STATE" ACTION IS
NOT ALWAYS EASY TO DETERMINE.  SEE BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715.  CONDUCT THAT IS FORMALLY "PRIVATE" MAY BECOME
SO ENTWINED WITH GOVERNMENTAL POLICIES OR SO IMPREGNATED WITH A
GOVERNMENTAL CHARACTER AS TO BECOME SUBJECT TO THE CONSTITUTIONAL
LIMITATIONS PLACED UPON STATE ACTION.  THE ACTION OF A CITY IN SERVING
AS TRUSTEE OF PROPERTY UNDER A PRIVATE WILL SERVING THE SEGREGATED
CAUSE IS AN OBVIOUS EXAMPLE.  SEE PENNSYLVANIA V. BOARD OF TRUSTS,
SUPRA.  A TOWN MAY BE PRIVATELY OWNED AND MANAGED, BUT THAT DOES NOT
NECESSARILY ALLOW THE COMPANY TO TREAT IT AS IF IT WERE WHOLLY IN THE
PRIVATE SECTOR.  THUS WE HELD IN MARSH V. ALABAMA, 326 U.S. 501, THAT
THE EXERCISE OF CONSTITUTIONALLY PROTECTED RIGHTS ON THE PUBLIC STREETS
OF A COMPANY TOWN COULD NOT BE DENIED BY THE OWNER.  A STATE IS NOT
JUSTIFIED, WE SAID, IN "PERMITTING A CORPORATION TO GOVERN A COMMUNITY
OF CITIZENS SO AS TO RESTRICT THEIR FUNDAMENTAL LIBERTIES  ...  ." 
ID., AT 509.  WE HAVE ALSO HELD THAT WHERE A STATE DELEGATES AN ASPECT
OF THE ELECTIVE PROCESS TO PRIVATE GROUPS, THEY BECOME SUBJECT TO THE
SAME RESTRAINTS AS THE STATE.  TERRY V. ADAMS, 345 U.S. 461.  THAT IS
TO SAY, WHEN PRIVATE INDIVIDUALS OR GROUPS ARE ENDOWED BY THE STATE
WITH POWERS OR FUNCTIONS GOVERNMENTAL IN NATURE, THEY BECOME AGENCIES
OR INSTRUMENTALITIES OF THE STATE AND SUBJECT TO ITS CONSTITUTIONAL
LIMITATIONS. 

YET GENERALIZATIONS DO NOT DECIDE CONCRETE CASES.  "ONLY BY SIFTING
FACTS AND WEIGHING CIRCUMSTANCES" (BURTON V. WILMINGTON PARKING
AUTHORITY, SUPRA, AT 722) CAN WE DETERMINE WHETHER THE REACH OF THE
FOURTEENTH AMENDMENT EXTENDS TO A PARTICULAR CASE.  THE RANGE OF
GOVERNMENTAL ACTIVITIES IS BROAD AND VARIED, AND THE FACT THAT
GOVERNMENT HAS ENGAGED IN A PARTICULAR ACTIVITY DOES NOT NECESSARILY
MEAN THAT AN INDIVIDUAL ENTREPRENEUR OR MANAGER OF THE SAME KIND OF
UNDERTAKING SUFFERS THE SAME CONSTITUTIONAL INHIBITIONS.  WHILE A STATE
MAY NOT SEGREGATE PUBLIC SCHOOLS SO AS TO EXCLUDE ONE OR MORE RELIGIOUS
GROUPS, THOSE SECTS MAY MAINTAIN THEIR OWN PAROCHIAL EDUCATIONAL
SYSTEMS.  PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510. 

IF A TESTATOR WANTED TO LEAVE A SCHOOL OR CENTER FOR THE USE OF ONE
RACE ONLY AND IN NO WAY IMPLICATED THE STATE IN THE SUPERVISION,
CONTROL, OR MANAGEMENT OF THAT FACILITY, WE ASSUME ARGUENDO THAT NO
CONSTITUTIONAL DIFFICULTY WOULD BE ENCOUNTERED.  (FN3) 

THIS PARK, HOWEVER, IS IN A DIFFERENT POSTURE.  FOR YEARS IT WAS AN
INTEGRAL PART OF THE CITY OF MACON'S ACTIVITIES.  FROM THE PLEADINGS WE
ASSUME IT WAS SWEPT, MANICURED, WATERED, PATROLLED, AND MAINTAINED BY
THE CITY AS A PUBLIC FACILITY FOR WHITES ONLY, AS WELL AS GRANTED TAX
EXEMPTION UNDER GA. CODE ANN. SEC. 92-201.  THE MOMENTUM IT ACQUIRED AS
A PUBLIC FACILITY IS CERTAINLY NOT DISSIPATED IPSO FACTO BY THE
APPOINTMENT OF "PRIVATE" TRUSTEES.  SO FAR AS THIS RECORD SHOWS, THERE
HAS BEEN NO CHANGE IN MUNICIPAL MAINTENANCE AND CONCERN OVER THIS
FACILITY.  WHETHER THESE PUBLIC CHARACTERISTICS WILL IN TIME BE
DISSIPATED IS WHOLLY CONJECTURAL.  IF THE MUNICIPALITY REMAINS ENTWINED
IN THE MANAGEMENT OR CONTROL OF THE PARK, IT REMAINS SUBJECT TO THE
RESTRAINTS OF THE FOURTEENTH AMENDMENT JUST AS THE PRIVATE UTILITY IN
PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451, 462, REMAINED SUBJECT
TO THE FIFTH AMENDMENT BECAUSE OF THE SURVEILLANCE WHICH FEDERAL
AGENCIES HAD OVER ITS AFFAIRS.  WE ONLY HOLD THAT WHERE THE TRADITION
OF MUNICIPAL CONTROL HAD BECOME FIRMLY ESTABLISHED, WE CANNOT TAKE
JUDICIAL NOTICE THAT THE MERE SUBSTITUTION OF TRUSTEES INSTANTLY
TRANSFERRED THIS PARK FROM THE PUBLIC TO THE PRIVATE SECTOR. 

THIS CONCLUSION IS BUTTRESSED BY THE NATURE OF THE SERVICE RENDERED
THE COMMUNITY BY A PARK.  THE SERVICE RENDERED EVEN BY A PRIVATE PARK
OF THIS CHARACTER IS MUNICIPAL IN NATURE.  IT IS OPEN TO EVERY WHITE
PERSON, THERE BEING NO SELECTIVE ELEMENT OTHER THAN RACE.  GOLF CLUBS,
SOCIAL CENTERS, LUNCHEON CLUBS, SCHOOLS SUCH AS TUSKEGEE WAS AT LEAST
IN ORIGIN, (FN4) AND OTHER LIKE ORGANIZATIONS IN THE PRIVATE SECTOR ARE
OFTEN RACIALLY ORIENTED.  A PARK, ON THE OTHER HAND, IS MORE LIKE A
FIRE DEPARTMENT OR POLICE DEPARTMENT THAT TRADITIONALLY SERVES THE
COMMUNITY.  MASS RECREATION THROUGH THE USE OF PARKS IS PLAINLY IN THE
PUBLIC DOMAIN, WATSON V. MEMPHIS, 373 U.S. 526; AND STATE COURTS THAT
AID PRIVATE PARTIES TO PERFORM THAT PUBLIC FUNCTION ON A SEGREGATED
BASIS IMPLICATE THE STATE IN CONDUCT PROSCRIBED BY THE FOURTEENTH
AMENDMENT.  LIKE THE STREETS OF THE COMPANY TOWN IN MARSH V. ALABAMA,
SUPRA, THE ELECTIVE PROCESS OF TERRY V. ADAMS, SUPRA, AND THE TRANSIT
SYSTEM OF PUBLIC UTILITIES COMM'N V. POLLAK, SUPRA, THE PREDOMINANT
CHARACTER AND PURPOSE OF THIS PARK ARE MUNICIPAL. 

UNDER THE CIRCUMSTANCES OF THIS CASE, WE CANNOT BUT CONCLUDE THAT THE
PUBLIC CHARACTER OF THIS PARK REQUIRES THAT IT BE TREATED AS A PUBLIC
INSTITUTION SUBJECT TO THE COMMAND OF THE FOURTEENTH AMENDMENT,
REGARDLESS OF WHO NOW HAS TITLE UNDER STATE LAW.  WE MAY FAIRLY ASSUME
THAT HAD THE GEORGIA COURTS BEEN OF THE VIEW THAT EVEN IN PRIVATE HANDS
THE PARK MAY NOT BE OPERATED FOR THE PUBLIC ON A SEGREGATED BASIS, THE
RESIGNATION WOULD NOT HAVE BEEN APPROVED AND PRIVATE TRUSTEES
APPOINTED.  WE PUT THE MATTER THAT WAY BECAUSE ON THIS RECORD WE CANNOT
SAY THAT THE TRANSFER OF TITLE PER SE DISENTANGLED THE PARK FROM
SEGREGATION UNDER THE MUNICIPAL REGIME THAT LONG CONTROLLED IT. 

SINCE THE JUDGMENT BELOW GIVES EFFECT TO THAT PURPOSE, IT MUST BE AND
IS REVERSED. 

FN1  WATSON V. MEMPHIS, 373 U.S. 526.  AND SEE MAYOR & CITY COUNCIL
OF BALTIMORE V. DAWSON, 350 U.S. 877 (BEACHES AND BATHHOUSES). 

FN2  HOLMES V. CITY OF ATLANTA, 350 U.S. 879; NEW ORLEANS PARK ASSN.
V. DETIEGE, 358 U.S. 54. 

FN3  IT IS ARGUED THAT THIS PARK WAS A PRODUCT OF GEORGIA'S POLICY TO
ALLOW CHARITABLE TRUSTS OF PUBLIC FACILITIES TO BE SEGREGATED.  A
GEORGIA STATUTE PERMITTED ANY PERSON TO GRANT A MUNICIPAL CORPORATION
LAND IN TRUST TO THE PUBLIC USE AS A PARK ON A RACIALLY SEGREGATED
BASIS.  GA. CODE ANN. SEC. 69-504.  AND A COMPANION MEASURE AUTHORIZED
MUNICIPAL CORPORATIONS TO ACCEPT SUCH GRANTS AND TO ENFORCE THE RACIAL
LIMITATIONS.  ID., SEC. 69-505.  THIS POLICY, IT IS URGED, HAD A
"COERCIVE EFFECT" (LOMBARD V. LOUISIANA, 373 U.S. 267, 273) IMPLICATING
GEORGIA IN RACIAL DISCRIMINATION, FOR WITHOUT THAT LEGISLATIVE PATTERN
FOR SEGREGATION A TESTATOR WOULD HAVE HAD TO TRAVEL AN UNCERTAIN COURSE
TO REACH THAT END.  BEFORE SEC. 69-605 WAS ENACTED IN 1905, AN ATTEMPT
TO ESTABLISH A TRUST SUCH AS THIS WOULD HAVE FACED NUMEROUS
DIFFICULTIES.  THE PRE-1905 STATUTORY LAW DID NOT EXPRESSLY INCLUDE
PARKS AS A PROPER SUBJECT OF CHARITABLE TRUSTS, ALTHOUGH IT WAS
SPECIFIC IN OTHER REGARDS.  SEE GA. CODE SEC. 4008 (1895).  AND
GEORGIA'S PUBLIC PARKS WERE CONCEIVED OF AS "DEDICATED" COMMONS WITH AN
EASEMENT IN FAVOR OF THE GENERAL PUBLIC.  SEE MAYOR & COUNCIL OF MACON
V. FRANKLIN, 12 GA. 239.  THE CONCEPT OF DEDICATION MEANT THAT THE
PROPERTY WAS TO BENEFIT THE PUBLIC AS A WHOLE.  FORD V. HARRIS, 95 GA.
97, 101, 22 S.E. 144, 145; EAST ATLANTA LAND CO. V. MOWER, 138 GA. 380,
388, 75 S.E. 418, 412.  IT WOULD HAVE POSED CONCEPTUAL DIFFICULTIES, TO
SAY THE LEAST, TO DEDICATE LAND TO THE PUBLIC AS A WHOLE, AT THE SAME
TIME EXCLUDING THE MEMBERS OF THE NEGRO RACE.  CF. BROWN V. GUNN, 75
GA. 441, IN WHICH THIS POINT WAS DISPOSED OF ONLY BY FINDING THAT, ON
THE PARTICULAR FACTS OF THAT CASE, THERE WAS NO "DEDICATION."  WE THINK
IT LIKELY THAT IT WAS THE VERY DIFFICULTIES DISCUSSED HERE THAT SEC. 69
504 WAS INTENDED TO ELIMINATE.  WE DO NOT, HOWEVER, REACH THE QUESTION
WHETHER THE STATE FACILITATED, THROUGH THIS LEGISLATIVE ACTION, THE
ESTABLISHMENT OF SEGREGATED PARKS. 

FN4  ALA. LAWS 1880-1881, PP. 395-396; ALA. LAWS, 1882-1883, PP. 392
393. 

MR. JUSTICE WHITE. 

AS MR. JUSTICE BLACK EMPHASIZES, THIS CASE COMES TO US IN THE VERY
NARROW CONTEXT OF A STATE COURT JUDGMENT ACCEPTING THE RESIGNATION OF A
TRUSTEE AND APPOINTING SUCCESSOR TRUSTEES.  THE LOWER COURT JUDGMENT
DOES NOT ENJOIN THE NEW TRUSTEES TO COMPLY WITH THE RACIAL RESTRICTION
IN THE TRUST, AND THERE IS THEREFORE NOT PRESENTED FOR DECISION THE
QUESTION WHETHER, SHOULD THE TRUSTEES FAIL TO EXCLUDE NEGROES FROM THE
PARK, STATE JUDICIAL ENFORCEMENT OF THE RACIAL RESTRICTION WOULD
CONSTITUTE DISCRIMINATORY STATE ACTION FORBIDDEN BY THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  SEE BELL V. MARYLAND,
378 U.S. 226, 328-331 (DISSENTING OPINION).  BUT WE DO HAVE PROPERLY
BEFORE US, IN MY OPINION, THE QUESTION OF WHETHER THE FOURTEENTH
AMENDMENT PROHIBITS THE NEW TRUSTEES FROM VOLUNTARILY EXCLUDING
NEGROES.  THIS IS SO BECAUSE DECISION OF THE STATE LAW QUESTIONS IN
THIS CASE WAS NOT INDEPENDENT OF THAT FEDERAL QUESTION.  THE CITY'S
RESIGNATION, ITS ACCEPTANCE BY THE STATE COURTS, AND THE APPOINTMENT OF
NEW TRUSTEES WERE ALL BASED ON THE PREMISE THAT THE CITY COULD NOT, BUT
PRIVATE TRUSTEES COULD, OBEY THE RACIAL RESTRICTION IN THE TRUST
WITHOUT VIOLATION OF THE FEDERAL CONSTITUTION.  IF THAT PREMISE WAS
INCORRECT, THIS COURT SHOULD VACATE THE JUDGMENT BELOW AND REMAND FOR
FURTHER CONSIDERATION OF THE STATE LAW ISSUES FREE FROM THE COMPULSION
OF AN ERRONEOUS VIEW OF FEDERAL LAW.  MISSOURI EX REL.  SOUTHERN R. CO.
V. MAYFIELD, 340 U.S. 1, 5; MINNESOTA V. NATIONAL TEA CO., 309 U.S.
551; STATE TAX COMM'N V. VAN COTT, 306 U.S. 511. 

THAT THE FOURTEENTH AMENDMENT PROHIBITS OPERATION OF THE PARK ON A
SEGREGATED BASIS SO LONG AS THE CITY IS TRUSTEE IS OF COURSE NOT
DISPUTED.  SEE CASES CITED BY THE MAJORITY, ANTE, N. 1.  WHETHER THE
SUCCESSOR TRUSTEES MAY THEMSELVES OPERATE THE PARK ON A SEGREGATED
BASIS IS THE QUESTION.  THE MAJORITY HOLDS THAT THEY MAY NOT.  I AGREE,
BUT FOR DIFFERENT REASONS.    TO A LARGE EXTENT THE MAJORITY GROUNDS
ITS CONCLUSION THAT EXCLUSION OF NEGROES FROM THE PARK AFTER THE CHANGE
IN TRUSTEES WOULD BE STATE ACTION AND THUS VIOLATIVE OF THE FOURTEENTH
AMENDMENT ON THE EXISTENCE OF PRIOR MUNICIPAL INVOLVEMENT IN THE
OPERATION OF THE PARK. 

"THE MOMENTUM THE PARK ACQUIRED AS A PUBLIC FACILITY IS CERTAINLY NOT
DISSIPATED IPSO FACTO BY THE APPOINTMENT OF 'PRIVATE' TRUSTEES.  SO FAR
AS THIS RECORD SHOWS, THERE HAS BEEN NO CHANGE IN MUNICIPAL MAINTENANCE
AND CONCERN OVER THIS FACILITY.  WHETHER THESE PUBLIC CHARACTERISTICS
WILL IN TIME BE DISSIPATED IS WHOLLY CONJECTURAL  ...  .  WE ONLY HOLD
THAT WHERE THE TRADITION OF MUNICIPAL CONTROL HAD BECOME FIRMLY
ESTABLISHED, WE CANNOT TAKE JUDICIAL NOTICE THAT THE MERE SUBSTITUTION
OF TRUSTEES INSTANTLY TRANSFERRED THIS PARK FROM THE PUBLIC TO THE
PRIVATE SECTOR."  ANTE, AT 301. 

IT IS EQUALLY EVIDENT THAT THE RECORD DOES NOT SHOW CONTINUED
INVOLVEMENT OF THE CITY IN THE OPERATION OF THE PARK - THE RECORD IS
SILENT ON THIS POINT.  ON THE CONTRARY, THE CITY'S INTEREST WOULD SEEM
TO LEAD IT TO CUT ALL TIES WITH THE OPERATION OF THE PARK.  IT MUST BE
AS CLEAR TO THE CITY AS TO THIS COURT THAT IF THE CITY REMAINS
"ENTWINED IN THE MANAGEMENT OR CONTROL OF THE PARK, IT REMAINS SUBJECT
TO THE RESTRAINTS OF THE FOURTEENTH AMENDMENT,"  ANTE, P. 301; AND
SHOULD SEGREGATION IN THE PARK BE BARRED, THE RESIDUARY BENEFICIARIES
WOULD UNDOUBTEDLY PRESS THEIR CLAIM THAT FAILURE OF THE TRUST PURPOSE
EXPRESSED IN THE RACIAL RESTRICTION RESULTS IN REVERSION OF THE PARK
PROPERTY.  IT SEEMS UNLIKELY THAT THE CITY WOULD ACT SO AS
UNNECESSARILY TO JEOPARDIZE THE CONTINUED EXISTENCE OF THIS CENTRALLY
LOCATED PARK, WHICH COMPRISES ABOUT 100 ACRES AND IS ONE OF THE CITY'S
LARGEST PARKS. 

THAT THE CITY'S OWN INTEREST MIGHT LEAD IT TO EXTRICATE ITSELF AT
ONCE FROM OPERATION OF THE PARK DOES NOT, OF COURSE, NECESSARILY MEAN
THAT IT HAS DONE SO; AND I AM NO MORE INCLINED THAN THE MAJORITY TO
RESOLVE THIS QUESTION BY CONJECTURE.  I REFER TO POSSIBLE INFERENCES
FROM THE CITY'S SELF-INTEREST SOLELY TO EMPHASIZE THAT THE RECORD
AFFORDS ABSOLUTELY NO BASIS FOR INFERRING CONTINUED INVOLVEMENT OF THE
CITY IN THE MANAGEMENT AND CONTROL OF THE PARK.  WHAT THE MAJORITY HAS
DONE IS TO RAISE A PRESUMPTION OF ONE FACT BY SHOWING THE ABSENCE OF
PROOF OF THE CONVERSE.  TO POSTULATE IN THIS MANNER THAT THE CITY'S
INVOLVEMENT HAS NOT BEEN DISSIPATED IS SIMPLY A DISGUISED FORM OF
CONJECTURE AND, I SUBMIT, IS AN INSUFFICIENT BASIS FOR DECISION OF THIS
CASE. 

I WOULD NEVERTHELESS HOLD THAT THE RACIAL CONDITION IN THE TRUST MAY
NOT BE GIVEN EFFECT BY THE NEW TRUSTEES BECAUSE, IN MY VIEW, IT IS
INCURABLY TAINTED BY DISCRIMINATORY STATE LEGISLATION VALIDATING SUCH A
CONDITION UNDER STATE LAW.  THE STATE LEGISLATION TO WHICH I REFER IS
SECS. 69-504 AND 69-505 OF THE GEORGIA CODE, WHICH WERE ADOPTED IN
1905, JUST SIX YEARS BEFORE SENATOR BACON'S WILL WAS EXECUTED. 
PERPETUITY TO THE PUBLIC USE AS A PARK, PLEASURE GROUND, OR FOR OTHER
PUBLIC PURPOSE" AND PROVIDE THAT "THE USE OF SAID PARK, PLEASURE
GROUND, OR OTHER PROPERTY SO CONVEYED TO SAID MUNICIPALITY MAY BE
LIMITED TO THE WHITE RACE ONLY, OR TO WHITE WOMEN AND CHILDREN ONLY, OR
TO THE COLORED RACE ONLY, OR TO COLORED WOMEN AND CHILDREN ONLY, OR TO
ANY OTHER RACE, OR TO THE WOMEN AND CHILDREN OF ANY OTHER RACE ONLY
...  ."  (FN1) 

AS THIS LEGISLATION DOES NOT COMPEL A TRUST SETTLOR TO CONDITION HIS
GRANT UPON USE ONLY BY A RACIALLY DESIGNATED CLASS, THE STATE CANNOT BE
SAID TO HAVE DIRECTLY COERCED PRIVATE DISCRIMINATION.   NEVERTHELESS,
IF THE VALIDITY OF THE RACIAL CONDITION IN SENATOR BACON'S TRUST WOULD
HAVE BEEN IN DOUBT BUT FOR THE 1905 STATUTE AND IF THE STATUTE REMOVED
SUCH DOUBT ONLY FOR RACIAL RESTRICTIONS, LEAVING THE VALIDITY OF
NONRACIAL RESTRICTIONS STILL IN QUESTION, THE ABSENCE OF COERCIVE
LANGUAGE IN THE LEGISLATION WOULD NOT PREVENT APPLICATION OF THE
FOURTEENTH AMENDMENT.  FOR SUCH A STATUTE WOULD DEPART FROM A POLICY OF
STRICT NEUTRALITY IN MATTERS OF PRIVATE DISCRIMINATION BY ENLISTING THE
STATE'S ASSISTANCE ONLY IN AID OF RACIAL DISCRIMINATION AND WOULD SO
INVOLVE THE STATE IN THE PRIVATE CHOICE AS TO CONVERT THE INFECTED
PRIVATE DISCRIMINATION INTO STATE ACTION SUBJECT TO THE FOURTEENTH
AMENDMENT.  COMPARE ROBINSON V. FLORIDA, 378 U.S. 153; LOMBARD V.
LOUISIANA, 373 U.S. 267; PETERSON V. CITY OF GREENVILLE, 373 U.S. 244. 
ALTHOUGH THERE ARE NO GEORGIA DECISIONS DIRECTLY ON THE POINT AND THE
QUESTION IS THEREFORE NOT FREE FROM DOUBT, THE AVAILABLE AUTHORITIES
HAVE LED ME TO CONCLUDE THAT SECS. 69-504 AND 69-505 DID INVOLVE THE
STATE IN THE PRIVATE CHOICE BY FAVORING PRIVATE RACIAL DISCRIMINATION
OVER PRIVATE DISCRIMINATION BASED ON GROUNDS OTHER THAN RACE. 

APART FROM SECS. 69-504 AND 69-505, THE GEORGIA STATUTE GOVERNING THE
DETERMINATION OF PERMISSIBLE OBJECTS OF CHARITABLE TRUSTS IS SEC. 108
203.  (FN2)  THIS STATUTE "ALMOST COPIES THE STATUTE OF 43D ELIZABETH,"
NEWSON V. STARKE, 46 GA. 88, 92 (1872), AND HAS THE EFFECT OF FULLY
ADOPTING IN GEORGIA THE COMMON LAW OF CHARITIES, JONES V. HABERSHAM,
107 U.S. 174, 180.  WE MAY THEREFORE EXPECT GENERAL CHARITABLE TRUST
PRINCIPLES TO BE AS FULLY APPLICABLE IN GEORGIA AS ELSEWHERE IN THE
SEVERAL STATES.   UNDER SUCH PRINCIPLES, THERE IS GRAVE DOUBT
CONCERNING WHETHER A CHARITABLE TRUST FOR A PARK COULD BE LIMITED TO
THE USE OF LESS THAN THE WHOLE PUBLIC. 

IN THE LEADING CASE OF COMMISSIONERS FOR SPECIAL PURPOSES OF INCOME
TAX V. PEMSEL, 1891 A.C. 531, 583, LORD MACNAGHTEN ESTABLISHED THE
CLASSIFICATION OF CHARITABLE TRUSTS THAT, WITH SOME MODIFICATIONS, HAS
SINCE PREVAILED: 

"'CHARITY' IN ITS LEGAL SENSE COMPRISES FOUR PRINCIPAL DIVISIONS:
TRUSTS FOR THE RELIEF OF POVERTY; TRUSTS FOR THE ADVANCEMENT OF
EDUCATION; TRUSTS FOR THE ADVANCEMENT OF RELIGION; AND TRUSTS FOR OTHER
PURPOSES BENEFICIAL TO THE COMMUNITY, NOT FALLING UNDER ANY OF THE
PRECEDING HEADS." 

SEE ALSO RESTATEMENT (SECOND), TRUSTS SEC. 368 (1959).  A MORE
GENERAL TEST OF WHAT IS CHARITABLE IS WHETHER THE ACCOMPLISHMENT OF THE
TRUST PURPOSE "IS OF SUCH SOCIAL INTEREST TO THE COMMUNITY AS TO
JUSTIFY PERMITTING PROPERTY TO BE DEVOTED TO THE PURPOSE IN
PERPETUITY."  IV SCOTT ON TRUSTS SEC. 368, AT 2629-2630 (2D ED. 1956). 
THE FIRST THREE CATEGORIES IDENTIFIED BY LORD MACNAGHTEN DESIGNATE
TRUST PURPOSES THAT HAVE LONG BEEN RECOGNIZED AS BENEFICIAL TO THE
COMMUNITY AS A WHOLE - WHETHER OR NOT IMMEDIATE BENEFIT IS RESTRICTED
TO A RELATIVELY SMALL GROUP - AND THAT THEREFORE SATISFY THE GENERAL
TEST STATED BY PROFESSOR SCOTT.  SEE RESTATEMENT (SECOND), TRUSTS SEC.
374, COMMENT A (1959).  BUT THE PRESENT TRUST FALLS UNDER THE FOURTH
CATEGORY AND CAN THEREFORE BE SUSTAINED AS CHARITABLE ONLY BECAUSE THE
GENERALITY OF USER BENEFICIARIES ESTABLISHES THAT IT IS BENEFICIAL TO
THE COMMUNITY.  OTHERWISE A TRUST TO ESTABLISH A COUNTRY CLUB FOR THE
USE OF THE RESIDENTS OF THE WEALTHIEST PART OF TOWN WOULD BE
CHARITABLE.  PROFESSOR SCOTT STATES THIS PRINCIPLE AS FOLLOWS: 

"AS WE HAVE SEEN, A TRUST TO PROMOTE THE HAPPINESS OR WELL-BEING OF
MEMBERS OF THE COMMUNITY IS CHARITABLE, ALTHOUGH IT IS NOT A TRUST TO
RELIEVE POVERTY, ADVANCE EDUCATION, PROMOTE RELIGION OR PROTECT
HEALTH.  IN SUCH A CASE, HOWEVER, THE TRUST MUST BE FOR THE BENEFIT OF
THE MEMBERS OF THE COMMUNITY GENERALLY AND NOT MERELY FOR THE BENEFIT
OF A CLASS OF PERSONS."  IV SCOTT ON TRUSTS SEC. 375.2, AT 2715 (2D ED.
1956). 

ACCORD, TRUSTEES OF NEW CASTLE COMMON V. MEGGINSON, 1 BOYCE 361, 376,
77 A. 565, 571 (SUP. CT. DEL. 1910)(TRUST FOR TOWN COMMON WAS
CHARITABLE; "IT IS PUBLIC, BECAUSE IT RELATES TO ALL THE INHABITANTS OF
A PARTICULAR COMMUNITY AND NOT TO ANY CLASSIFICATION OF SUCH
INHABITANTS, OR TO ANY GROUP THEREOF SEPARATELY FROM THE OTHER
INHABITANTS BY ANY DISTINCTION OF RACE, CREED, SOCIAL RANK, WEALTH,
POVERTY, OCCUPATION, OR BUSINESS  ...  "); RESTATEMENT, TRUSTS SEC.
375, COMMENTS A AND C (1935); RESTATEMENT (SECOND), TRUSTS SEC. 375,
COMMENT A (1959); SEE ALSO BOGERT ON TRUSTS SEC. 378 (2D ED. 1964). 
(FN3)  APART FROM THE PRESENT CASE, NO GEORGIA CASES DEALING WITH
TRUSTS FOR GENERAL COMMUNITY PURPOSES HAVE BEEN FOUND, SEE SMITH, THE
VALIDITY OF CHARITABLE GIFTS IN GEORGIA, 1 GA. B.J. 16, 26-27 (FEB.
1939), BUT THE AVAILABLE GEORGIA AUTHORITIES ARE CONSISTENT WITH THE
RULE ENUNCIATED BY SCOTT.  COMPARE BRAMBLETT V. TRUST CO. OF GEORGIA,
182 GA. 87, 185 S.E. 72 (1936)(TRUST TO ESTABLISH "HOME FOR
GENTLEWOMEN" NOT CHARITABLE), WITH HOUSTON V. MILLS MEMORIAL HOME, 202
GA.  540, 43 S.E.2D 680 (1947)(TRUST FOR NEGRO OLD FOLKS' HOME IS
CHARITABLE).  (FN4)  ON THE WHOLE, THEREFORE, I CONCLUDE THAT PRIOR TO
THE 1905 LEGISLATION IT WOULD HAVE BEEN EXTREMELY DOUBTFUL WHETHER SEC.
108-203 AUTHORIZED A TRUST FOR PARK PURPOSES WHEN A PORTION OF THE
PUBLIC WAS TO BE EXCLUDED FROM THE PARK. 

THE PUBLIC IF SUCH EXCLUSION IS ON RACIAL GROUNDS.  AT THE SAME TIME,
THOSE SECTIONS APPEAR TO MAKE NONRACIAL RESTRICTIONS ON THE USER OF A
PARK CREATED BY TRUST EVEN MORE DOUBTFUL.  SECTION 69-504 AUTHORIZES
THE CONVEYANCE OF LAND "DEDICATED IN PERPETUITY TO THE PUBLIC USE AS A
PARK" AND ALSO PROVIDES THAT SUCH A CONVEYANCE MAY LIMIT USER ON RACIAL
GROUNDS.  THE NATURAL CONSTRUCTION OF THIS PROVISION WOULD BE THAT IT
AUTHORIZES A TRUST ONLY FOR THE USE OF THE WHOLE PUBLIC OR FOR THE USE
OF A RACIALLY DESIGNATED SUBPART OF THE PUBLIC, BUT NOT FOR THE USE OF
SOME OTHER PORTION OF THE PUBLIC SUCH AS MEN ONLY OR IRISH PERSONS
ONLY.  SUCH AN INTERPRETATION FOLLOWS FROM THE MAXIM EXPRESSIO UNIUS
EST EXCLUSIO ALTERIUS AND FROM THE DEDICATION CASES TO WHICH THE
MAJORITY REFERS, ANTE, AT 300-301, N. 3, WHICH INDICATE THAT THE
EXPRESSION "DEDICATED IN PERPETUITY TO THE PUBLIC USE AS A PARK" MEANS
DEDICATION TO THE PUBLIC AS A WHOLE AND NOT SOME PORTION OF THE
PUBLIC.  SEE ALSO WESTERN UNION TELEGRAPH CO. V. GEORGIA R. & BANKING
CO., 227 F. 276, 285 (D.C.S.D. GA. 1915).  ("'THERE CAN BE NO
DEDICATION, STRICTLY SPEAKING, TO PRIVATE USES, NOR EVEN TO USES PUBLIC
IN THEIR NATURE, BUT THE ENJOYMENT OF WHICH IS RESTRICTED TO A LIMITED
PART OF THE PUBLIC.'")  ONE COMMENTATOR HAS SUGGESTED THAT SEC. 69-504
WAS INTENDED TO EXPAND CLAUSE 4 OF SEC. 108-203, SEE NOTE 2, SUPRA,
I.E., "TO ENLARGE 'PUBLIC WORKS' OR 'PUBLIC CONVENIENCES' TO INCLUDE
PUBLIC PARKS OR PLEASURE GROUNDS  ...  ."  SMITH, THE VALIDITY OF
CHARITABLE GIFTS IN GEORGIA, 1 GA. B.J. 16, 27 (FEB. 1939).  ON THAT
ASSUMPTION, THE SOLE AUTHORITY FOR HOLDING GIFTS IN TRUST FOR PARK
PURPOSES TO BE CHARITABLE WOULD BE SEC. 69-504, AND THAT SECTION
CLEARLY MAKES NONRACIAL RESTRICTIONS ON USE OF SUCH PARKS MORE DOUBTFUL
THAN RACIAL RESTRICTIONS.  EVEN IF SEC. 69-504 IS REGARDED AS A
CLARIFICATION OF PRIOR LAW, RATHER THAN AN ADDITION TO IT, IT HAS THE
SAME EFFECT OF CASTING DOUBT ON THE VALIDITY OF NONRACIAL
RESTRICTIONS. 

THIS CASE MUST ACCORDINGLY BE VIEWED AS ONE WHERE THE STATE HAS
FORBIDDEN ALL PRIVATE DISCRIMINATION EXCEPT RACIAL DISCRIMINATION.  AS
A RESULT, "THE STATE THROUGH ITS REGULATIONS HAS BECOME INVOLVED TO
SUCH A SIGNIFICANT EXTENT" IN BRINGING ABOUT THE DISCRIMINATORY
PROVISION IN SENATOR BACON'S TRUST THAT THE RACIAL RESTRICTION "MUST BE
HELD TO REFLECT  ...  STATE POLICY AND THEREFORE TO VIOLATE THE
FOURTEENTH AMENDMENT."  ROBINSON V. FLORIDA, 378 U.S. 153, 156-157. 
FOR THE REASONS STATED, I WOULD VACATE THE JUDGMENT OF THE GEORGIA
COURT AND REMAND THE CASE FOR FURTHER PROCEEDINGS. 

FN1  "69-504.  GIFTS FOR PUBLIC PARKS OR PLEASURE GROUNDS.  - ANY
PERSON MAY, BY APPROPRIATE CONVEYANCE, DEVISE, GIVE, OR GRANT TO ANY
MUNICIPAL CORPORATION OF THIS STATE, IN FEE SIMPLE OR IN TRUST, OR TO
OTHER PERSONS AS TRUSTEES, LANDS BY SAID CONVEYANCE DEDICATED IN
PERPETUITY TO THE PUBLIC USE AS A PARK, PLEASURE GROUND, OR FOR OTHER
PUBLIC PURPOSE, AND IN SAID CONVEYANCE, BY APPROPRIATE LIMITATIONS AND
CONDITIONS, PROVIDE THAT THE USE OF SAID PARK, PLEASURE GROUND, OR
OTHER PROPERTY SO CONVEYED TO SAID MUNICIPALITY SHALL BE LIMITED TO THE
WHITE RACE ONLY, OR TO WHITE WOMEN AND CHILDREN ONLY, OR TO THE COLORED
RACE ONLY, OR TO COLORED WOMEN AND CHILDREN ONLY, OR TO ANY OTHER RACE,
OR TO THE WOMEN AND CHILDREN OF ANY OTHER RACE ONLY, THAT MAY BE
DESIGNATED BY SAID DEVISOR OR GRANTOR; AND ANY PERSON MAY ALSO, BY SUCH
CONVEYANCE, DEVISE, GIVE, OR GRANT IN PERPETUITY TO SUCH CORPORATIONS
OR PERSONS OTHER PROPERTY, REAL OR PERSONAL, FOR THE DEVELOPMENT,
IMPROVEMENT, AND MAINTENANCE OF SAID PROPERTY. 

"69-505. MUNICIPALITY AUTHORIZED TO ACCEPT.  - ANY MUNICIPAL
CORPORATION, OR OTHER PERSONS NATURAL OR ARTIFICIAL, AS TRUSTEES, TO
WHOM SUCH DEVISE, GIFT, OR GRANT IS MADE, MAY ACCEPT THE SAME IN BEHALF
OF AND FOR THE BENEFIT OF THE CLASS OF PERSONS NAMED IN THE CONVEYANCE,
AND FOR THEIR EXCLUSIVE USE AND ENJOYMENT; WITH THE RIGHT TO THE
MUNICIPALITY OR TRUSTEES TO IMPROVE, EMBELLISH, AND ORNAMENT THE LAND
SO GRANTED AS A PUBLIC PARK, OR FOR OTHER PUBLIC USE AS HEREIN
SPECIFIED, AND EVERY MUNICIPAL CORPORATION TO WHICH SUCH CONVEYANCE
SHALL BE MADE SHALL HAVE POWER, BY APPROPRIATE POLICE PROVISION, TO
PROTECT THE CLASS OF PERSONS FOR WHOSE BENEFIT THE DEVISE OR GRANT IS
MADE, IN THE EXCLUSIVE USE AND ENJOYMENT THEREOF."  GA. CODE ANN. SECS
69-504 AND 69-505 (1957). 

FN2  "108-203.  SUBJECTS OF CHARITY.  - THE FOLLOWING SUBJECTS ARE
PROPER MATTERS OF CHARITY FOR THE JURISDICTION OF EQUITY: 

"1.  RELIEF OF AGED, IMPOTENT, DISEASED, OR POOR PEOPLE. 

"2.  EVERY EDUCATIONAL PURPOSE. 

"3.  RELIGIOUS INSTRUCTION OR WORSHIP. 

"4.  CONSTRUCTION OR REPAIR OF PUBLIC WORKS, OR HIGHWAYS, OR OTHER
PUBLIC CONVENIENCES. 

"5.  PROMOTION OF ANY CRAFT OR PERSONS ENGAGING THEREIN.    "6.
REDEMPTION OR RELIEF OF PRISONERS OR CAPTIVES. 

"7. IMPROVEMENT OR REPAIR OF CEMETERIES OR TOMBSTONES. 

"8.  OTHER SIMILAR SUBJECTS, HAVING FOR THEIR OBJECT THE RELIEF OF
HUMAN SUFFERING OR THE PROMOTION OF HUMAN CIVILIZATION."  GA. CODE ANN.
SEC. 108-203 (1959). 

FN3  THIS PRECISE QUESTION HAD BEEN MOOTED IN ENGLAND A FEW YEARS
BEFORE THE 1905 GEORGIA ENACTMENT IN THE CASE OF IN RE CHRISTCHURCH
INCLOSURE ACT, 38 CH. D. 520 (1888), AFF'D, 1893 A.C. 1, AND IT APPEARS
THE ENGLISH RULE MAY DIFFER FROM THE AMERICAN RULE.  THE CHRISTCHURCH
INCLOSURE ACT GAVE TENANTS IN CERTAIN COTTAGES THE RIGHT IN A
DESIGNATED COMMON TO CUT TURF FOR FUEL.  IN THE CASE BEFORE THE COURT,
IT WAS CLEAR THE ACT HAD TO BE GIVEN EFFECT IN SOME MANNER, BUT THE
COURT EXPRESSED GREAT DIFFICULTY IN GIVING IT EFFECT AS CREATING A
CHARITABLE TRUST.  "FOR, ALTHOUGH THE OCCUPIERS OF THESE COTTAGES MAY
HAVE BEEN, AND PERHAPS WERE, POOR PEOPLE, THE TRUST IS NOT FOR THE POOR
OCCUPIERS, BUT FOR ALL THE THEN AND FUTURE OCCUPIERS, WHETHER POOR OR
NOT.  MOREOVER, THE TRUST IS NOT FOR THE INHABITANTS OF A PARISH OR
DISTRICT, BUT ONLY FOR SOME OF SUCH PERSONS."  ID., AT 530. 
NEVERTHELESS, THE COURT FELT BOUND TO HOLD SUCH A TRUST WAS CHARITABLE
ON THE AUTHORITY OF A DICTUM BY LORD SELBORNE IN GOODMAN V. MAYOR OF
SALTASH, 7 APP. CAS. 633, 642 (1882)(TRUST FOR A FISHERY FOR THE USE OF
ALL "FREE INHABITANTS OF ANCIENT TENEMENTS" HELD CHARITABLE), THAT "A
GIFT SUBJECT TO A CONDITION OR TRUST FOR THE BENEFIT OF THE INHABITANTS
OF A PARISH OR TOWN, OR OF ANY PARTICULAR CLASS OF SUCH INHABITANTS, IS
(AS I UNDERSTAND THE LAW) A CHARITABLE TRUST  ...  ."  LORD BLACKBURN
DISSENTED IN GOODMAN V. MAYOR OF SALTASH, SAYING THAT "THOUGH THERE ARE
MANY CASES TO THE EFFECT THAT A TRUST FOR PUBLIC PURPOSES, NOT CONFINED
TO THE POOR, MAY BE CONSIDERED CHARITABLE FOR MANY PURPOSES, I DO NOT
KNOW OF ANY THAT SAY THAT SUCH A TRUST AS IS NOW SUPPOSED WOULD BE
TAKEN OUT OF THE RULE AGAINST PERPETUITIES  ...  ."  ID., AT 662.  NO
DOUBT LORD SELBORNE'S VIEW OF WHAT CONSTITUTED A TRUST FOR THE BENEFIT
OF THE PUBLIC GENERALLY WAS COLORED BY FEUDAL TRADITIONS AND THE LONG
HISTORY OF ROYAL CHARTERS TO THE BURGHERS, OR "FREE INHABITANTS" OF A
TOWN (IN FACT, THE TRUST IN GOODMAN V. MAYOR OF SALTASH WAS A FICTIONAL
ONE CREATED BY SUPPOSING THE PRIOR EXISTENCE OF SUCH A CHARTER, NOW
LOST), WHILE THE AMERICAN RULE ENUNCIATED BY SCOTT IS IN KEEPING WITH
THE AMERICAN DEMOCRATIC TRADITION, WHICH IN TURN IS REFLECTED BY THE
GEORGIA CASES REGARDING DEDICATION OF LAND TO PUBLIC USE DISCUSSED BY
THE MAJORITY, ANTE, AT 300-301, N. 3. 

FN4  THE TRUST IN MILLS MEMORIAL HOME WAS SPECIFICALLY RECOGNIZED AS
CHARITABLE BY SEC. 108-203(1) ("RELIEF OF AGED, IMPOTENT, DISEASED, OR
POOR PEOPLE"), SEE NOTE 2, SUPRA, WHILE THE TRUST IN BRAMBLETT WOULD BE
CLASSIFIABLE AS ONE TO PROMOTE THE HAPPINESS OR WELL-BEING OF MEMBERS
OF THE COMMUNITY AT LARGE AND WOULD THUS BE TESTED BY THE STANDARD OF
GENERALITY STATED BY PROFESSOR SCOTT. 

MR. JUSTICE BLACK, DISSENTING. 

I FIND NOTHING IN THE UNITED STATES CONSTITUTION THAT COMPELS ANY
CITY OR OTHER STATE SUBDIVISION TO HOLD TITLE TO PROPERTY IT DOES NOT
WANT OR TO ACT AS TRUSTEE UNDER A WILL WHEN IT CHOOSES NOT TO DO SO.
AND I HAD SUPPOSED UNTIL NOW THAT THE NARROW QUESTION OF WHETHER A CITY
COULD RESIGN SUCH A TRUSTEESHIP AND WHETHER A STATE COURT COULD APPOINT
SUCCESSOR TRUSTEES DEPENDED ENTIRELY ON STATE LAW.  HERE, HOWEVER, THE
COURT ASSUMES THAT FEDERAL POWER EXISTS TO REVERSE THE SUPREME COURT OF
GEORGIA FOR AFFIRMING A GEORGIA TRIAL COURT'S DECREE WHICH, AS THE
STATE SUPREME COURT HELD, DID ONLY THESE "TWO THINGS: (1) ACCEPTED THE
RESIGNATION OF THE CITY OF MACON AS TRUSTEE OF BACONSFIELD; AND (2)
APPOINTED NEW TRUSTEES."  220 GA. 280, 284; 138 S.E.2D 573, 576. 

THE STATE SUPREME COURT'S INTERPRETATION OF THE SCOPE AND EFFECT OF
THIS GEORGIA DECREE SHOULD BE BINDING UPON US UNLESS THE STATE SUPREME
COURT HAS SOMEHOW LOST ITS POWER TO CONTROL AND LIMIT THE SCOPE AND
EFFECT OF GEORGIA TRIAL COURT DECREES RELATING TO GEORGIA WILLS
CREATING GEORGIA TRUSTS OF GEORGIA PROPERTY.  A HOLDING THAT IGNORES
THIS STATE POWER WOULD BE SO DESTRUCTIVE OF OUR STATE JUDICIAL SYSTEMS
THAT IT COULD FIND NO SUPPORT, I THINK, IN OUR FEDERAL CONSTITUTION OR
IN ANY OF THIS COURT'S PRIOR DECISIONS.  FOR MYSELF, I THEREFORE ACCEPT
THE DECISION OF THE GEORGIA SUPREME COURT AS HOLDING ONLY WHAT IT
DECLARED IT HELD, NAMELY, THAT THE TRIAL COURT COMMITTED NO ERROR UNDER
GEORGIA LAW IN ACCEPTING THE CITY OF MACON'S RESIGNATION AS TRUSTEE AND
IN APPOINTING SUCCESSOR TRUSTEES TO EXECUTE THE BACON TRUST. 

I AM NOT SURE THAT THE COURT IS PASSING AT ALL ON THE ONLY TWO
QUESTIONS THE GEORGIA SUPREME COURT DECIDED IN APPROVING THE CITY'S
RESIGNATION AS TRUSTEE AND THE APPOINTMENT OF SUCCESSORS.  IF THE COURT
IS HOLDING THAT A STATE IS WITHOUT THESE POWERS, IT IS CERTAINLY A
DRASTIC DEPARTURE FROM SETTLED CONSTITUTIONAL DOCTRINE AND A VASTLY
IMPORTANT ONE WHICH, I CANNOT REFRAIN FROM SAYING, DESERVES A CLEARER
EXPLICATION THAN IT IS GIVEN.  AMBIGUITY CANNOT, HOWEVER, CONCEAL THE
REVOLUTIONARY NATURE OF SUCH A HOLDING, IF THIS IS THE COURT'S HOLDING,
NOR SUCCESSFULLY OBSCURE THE TREMENDOUS LOPPING OFF OF POWER HERETOFORE
UNIFORMLY CONCEDED BY ALL TO BELONG TO THE STATES.  THIS AMBIGUOUS AND
CONFUSING DISPOSITION OF SUCH HIGHLY IMPORTANT QUESTIONS IS
PARTICULARLY DISTURBING TO ME BECAUSE THE COURT'S DISCUSSION OF THE
CONSTITUTIONAL STATUS OF THE PARK COMES IN THE NATURE OF AN ADVISORY
OPINION ON FEDERAL CONSTITUTIONAL QUESTIONS THE GEORGIA SUPREME COURT
DID NOT DECIDE.  CONSEQUENTLY, FOR ALL THE FOREGOING REASONS AND
PARTICULARLY SINCE THE GEORGIA COURTS DECIDED NO FEDERAL CONSTITUTIONAL
QUESTION, I AGREE WITH MY BROTHER HARLAN THAT THE WRIT OF CERTIORARI
SHOULD HAVE BEEN DISMISSED AS IMPROVIDENTLY GRANTED. 

QUESTIONS OF THIS COURT'S JURISDICTION WOULD BE DIFFERENT, OF COURSE,
IF EITHER THE MERE RESIGNATION OR APPOINTMENT OF TRUSTEES UNDER A WILL
WAS PROHIBTED BY SOME FEDERAL CONSTITUTIONAL PROVISION.  BUT THERE IS
NONE.  THE COURT IMPLIES, HOWEVER, THAT THE CITY'S RESIGNATION AND THE
STATE COURT'S APPOINTMENT OF NEW TRUSTEES AMOUNTED TO "STATE-SPONSORED
RACIAL INEQUALITY," WHICH, OF COURSE, IF CORRECT, WOULD PRESENT A
FEDERAL CONSTITUTIONAL QUESTION.  THIS SUGGESTION RESTS ON A FURTHER
IMPLICATION BY THE COURT THAT THE GEORGIA COURT'S DECREE WOULD RESULT
IN THE OPERATION OF BACONSFIELD PARK ON A RACIALLY SEGREGATED BASIS. 
THE RECORD HERE, FOR SEVERAL REASONS, CAN SUPPORT NO SUCH IMPLICATIONS:
(1) THE STATE SUPREME COURT SPECIFICALLY LIMITED THE EFFECT OF THE
DECREE IT AFFIRMED TO APPROVAL OF THE CITY'S RESIGNATION AS TRUSTEE AND
THE APPOINTMENT OF NEW ONES; (2) THE NEW TRUSTEES WERE NOT DIRECTED TO
OPERATE THE PARK ON A DISCRIMINATORY BASIS; AND (3) THERE IS NO
INDICATION THAT THEY HAVE DONE SO.  FURTHERMORE, WHERE A VALID LAW
MAKES A CERTAIN USE OF PROPERTY HELD IN TRUST ILLEGAL, RESPONSIBILITY
FOR ITS ILLEGAL USE CANNOT BE ESCAPED BY PUTTING IT IN THE HANDS OF NEW
TRUSTEES.  CF., E.G., MORMON CHURCH V. UNITED STATES, 136 U.S. 1, 47
48. 

THE AMBIGUOUS LANGUAGE USED BY THE COURT EVEN CASTS DOUBT UPON
GEORGIA'S POWER TO HOLD THAT THE TRUST PROPERTY HERE CAN REVERT TO THE
HEIRS OF SENATOR BACON IF THE CONDITIONS UPON WHICH HE CREATED THE
TRUST SHOULD BECOME IMPOSSIBLE TO CARRY OUT.  THE HEIRS OF SENATOR
BACON RAISED THE ISSUE OF REVERSION BELOW, BUT NEITHER COURT REACHED
IT.  SO FAR AS I HAVE BEEN ABLE TO FIND, THE POWER OF A STATE TO DECIDE
SUCH A QUESTION HAS BEEN TAKEN FOR GRANTED IN EVERY PRIOR OPINION THIS
COURT HAS EVER WRITTEN TOUCHING THIS SUBJECT.  I BELIEVE THAT GEORGIA'S
COMPLETE POWER TO DECIDE THIS QUESTION IS SO CLEAR THAT NO DOUBT SHOULD
BE CAST ON IT AS I THINK THE COURT'S OPINION DOES.  BUT IF THIS COURT
IS TO EXERCISE JURISDICTION IN THIS CASE AND HOLD, DESPITE THE FACT
THAT THE STATE COURT'S DECREE DID NOT ADJUDICATE ANY SUCH QUESTION,
THAT THE NEW SUCCESSOR TRUSTEES CANNOT CONSTITUTIONALLY OPERATE THE
PARK IN ACCORDANCE WITH SENATOR BACON'S WILL, THEN I THINK THAT THE
COURT SHOULD EXPLICITLY STATE THAT THE QUESTION OF REVERSION TO HIS
HEIRS IS CONTROLLED BY STATE LAW AND REMAND THE CASE TO THE GEORGIA
SUPREME COURT TO DECIDE THAT QUESTION. 

NOTHING THAT I HAVE SAID IS TO BE TAKEN AS IMPLYING THAT BACONSFIELD
PARK COULD AT THIS TIME BE OPERATED BY SUCCESSOR TRUSTEES ON A RACIALLY
DISCRIMINATORY BASIS.  QUESTIONS OF EQUAL PROTECTION OF ALL PEOPLE
WITHOUT DISCRIMINATION ON ACCOUNT OF COLOR ARE OF PARAMOUNT IMPORTANCE
IN THIS GOVERNMENT DEDICATED TO EQUAL JUSTICE FOR ALL.  WE CAN ACCORD
THAT ESTEEMED PRINCIPLE THE RESPECT IT IS DUE, HOWEVER, WITHOUT
DISTORTING THE CONSTITUTIONAL STRUCTURE OF OUR GOVERNMENT BY TAKING
AWAY FROM THE STATES THAT WHICH IS THEIR DUE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THIS DECISION, IN MY OPINION, IS MORE THE PRODUCT OF HUMAN IMPULSES,
WHICH I FULLY SHARE, THAN OF SOLID CONSTITUTIONAL THINKING.  IT IS MADE
AT THE SACRIFICE OF LONG-ESTABLISHED AND STILL WISE PROCEDURAL AND
SUBSTANTIVE CONSTITUTIONAL PRINCIPLE.  I MUST RESPECTFULLY DISSENT. 

                                           I. 

IN MY VIEW THE WRIT SHOULD BE DISMISSED AS IMPROVIDENTLY GRANTED
BECAUSE THE FAR-REACHING CONSTITUTIONAL QUESTION TENDERED IS NOT
PRESENTED BY THIS RECORD WITH SUFFICIENT CLARITY TO REQUIRE OR JUSTIFY
ITS ADJUDICATION, ASSUMING THAT THE QUESTION IS PRESENTED AT ALL. 

IN THE POSTURE IN WHICH THIS CASE REACHED THE STATE COURTS IT
REQUIRED OF THEM NO MORE THAN APPROVAL OF THE CITY'S RESIGNATION AS
TRUSTEE UNDER SENATOR BACON'S WILL AND THE APPOINTMENT OF SUCCESSOR
TRUSTEES.  NEITHER OF THESE ISSUES OF COURSE WOULD IN ITSELF PRESENT A
FEDERAL QUESTION.  WHILE I AM INCLINED TO AGREE WITH MY BROTHER BLACK
THAT THIS IS ALL THE STATE COURTS DECIDED, I THINK IT MUST BE
RECOGNIZED THAT THE RECORD IS NOT WHOLLY FREE FROM AMBIGUITY ON THIS
SCORE.  EVEN SO, THE WRIT SHOULD BE DISMISSED.  TO INFER FROM THE
GEORGIA SUPREME COURT'S OPINION, AS THE MAJORITY HERE DOES, A FURTHER
HOLDING THAT THE NEW TRUSTEES ARE ENTITLED TO OPERATE BACONSFIELD ON A
RACIALLY RESTRICTED BASIS, IS TO STRETCH FOR A CONSTITUTIONAL ISSUE. 
THIS PLAINLY CONTRAVENES THE ESTABLISHED RULE THAT THIS COURT WILL NOT
REACH CONSTITUTIONAL QUESTIONS IF THEIR DECISION CAN REASONABLY BE
AVOIDED.  PETERS V. HOBBY, 349 U.S. 331; UNITED STATES V. RUMELY, 345
U.S. 41; CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11 PET. 420, 553. 
APPLICATION OF THAT DOCTRINE IS ESPECIALLY CALLED FOR HERE WHERE
DECISION SHOULD REQUIRE PRECISE KNOWLEDGE OF THE FACTUAL DETAILS AND
NUANCES THAT ONLY TIME AND A COMPLETE RECORD CAN BRING INTO FOCUS. 
DISMISSAL OF THE WRIT SHOULD THUS FOLLOW. 

             II. 

ON THE MERITS, WHICH I REACH ONLY BECAUSE THE COURT HAS DONE SO, I DO
NOT THINK THAT THE FOURTEENTH AMENDMENT PERMITS THIS COURT IN EFFECT TO
FRUSTRATE THE TERMS OF SENATOR BACON'S WILL, NOW THAT THE CITY OF MACON
IS NO LONGER CONNECTED, SO FAR AS THE RECORD SHOWS, WITH THE
ADMINISTRATION OF BACONSFIELD.  IF THE MAJORITY IS IN DOUBT THAT SUCH
IS THE CASE, IT SHOULD REMAND FOR FINDINGS ON THAT ISSUE AND NOT
REVERSE. 

THE EQUAL PROTECTION CLAUSE REACHES ONLY DISCRIMINATIONS THAT ARE THE
PRODUCT OF CAPRICIOUS STATE ACTION; IT DOES NOT TOUCH DISCRIMINATIONS
WHOSE ORIGINS AND EFFECTUATION ARISE SOLELY OUT OF INDIVIDUAL
PREDILECTIONS, PREJUDICES, AND ACTS.  CIVIL RIGHTS CASES, 109 U.S. 3. 
SO FAR AS THE FOURTEENTH AMENDMENT IS CONCERNED THE CURTAILING OF
PRIVATE DISCRIMINATORY ACTS, TO THE EXTENT THEY MAY BE FORBIDDEN AT
ALL, IS A MATTER THAT IS LEFT TO THE STATES ACTING WITHIN THE
PERMISSIBLE RANGE OF THEIR POLICE POWER. 

FROM ALL THAT NOW APPEARS, THIS IS A CASE OF "PRIVATE
DISCRIMINATION."  BACONSFIELD HAD ITS ORIGIN NOT IN ANY SIGNIFICANT
GOVERNMENTAL ACTION (FN1) OR ON ANY PUBLIC LAND BUT RATHER IN THE
PERSONAL SOCIAL PHILOSOPHY OF SENATOR BACON AND ON PROPERTY OWNED BY
HIM.  THE CITY OF MACON'S ACCEPTANCE AND, UNTIL RECENT YEARS, ITS
CARRYING OUT OF THE TRUSTEESHIP WERE BOTH ENTIRELY LEGITIMATE, AND
INDEED IN ACCORD WITH THE PREVAILING MORES OF THE TIMES.  WHEN
CONTINUANCE OF ITS TRUSTEESHIP BECAME INCOMPATIBLE WITH LATER CHANGES
IN CONSTITUTIONAL DOCTRINE, THE CITY FIRST UNDERTOOK TO DISREGARD THE
RACIAL RESTRICTIONS IMPOSED BY THE WILL ON THE USE OF THE PARK, AND
THEN WHEN THAT ACTION WAS APPROPRIATELY CHALLENGED, RESIGNED AS
TRUSTEE.  THE STATE COURTS, OBEDIENT TO FEDERAL COMMANDS, PENNSYLVANIA
V. BOARD OF TRUSTS, 353 U.S. 230, HAVE ACCEPTED THE RESIGNATION OF THE
CITY, AND, TO PREVENT FAILURE OF THE TRUST UNDER THEIR OWN LAWS, HAVE
APPOINTED NEW TRUSTEES.  I CAN SEE NOTHING IN THIS STRAIGHTFORWARD
TRAIN OF EVENTS WHICH JUSTIFIES FINDING "STATE ACTION" OF THE KIND
NECESSARY TO BRING THE FOURTEENTH AMENDMENT INTO PLAY. 

THE FIRST GROUND FOR THE MAJORITY'S STATE ACTION HOLDING RESTS ON
NOTHING BUT AN ASSUMPTION AND A CONJECTURE.  THE ASSUMPTION IS THAT THE
CITY ITSELF MAINTAINED BACONSFIELD IN THE PAST.  THE CONJECTURE IS THAT
IT WILL CONTINUE TO BE CONNECTED WITH THE ADMINISTRATION OF THE PARK IN
THE FUTURE.  THE ONLY UNDERPINNING FOR THE ASSUMPTION IS THE
CIRCUMSTANCE THAT OVER THE YEARS BACONSFIELD HAS GEOGRAPHICALLY BECOME
AN ADJUNCT TO THE CITY'S PARK SYSTEM AND THE ADMITTED FACT THAT UNTIL
THE PRESENT PROCEEDING, TITLE TO IT WAS VESTED IN THE CITY AS TRUSTEE. 
THE ONLY PREDICATE FOR THE MAJORITY'S CONJECTURE AS TO THE FUTURE IS
THE FAILURE OF THE RECORD TO SHOW THE CONTRARY. 

IF SPECULATION IS THE TEST, THE RECORD MORE READILY SUPPORTS CONTRARY
INFERENCES.  PAPERS BEFORE US INDICATE THAT SENATOR BACON LEFT OTHER
PROPERTY IN TRUST PRECISELY IN ORDER TO MAINTAIN BACONSFIELD.  (FN2)
WHY SHOULD IT BE ASSUMED THAT THESE RESOURCES WERE NOT USED IN THE PAST
FOR THAT PURPOSE, STILL LESS THAT THE NEW TRUSTEES, NOW FACED WITH A
CHALLENGE AS TO THEIR RIGHT TO EFFECTUATE THE TERMS OF SENATOR BACON'S
TRUST, WILL NOT KEEP BACONSFIELD PRIVATELY MAINTAINED IN ALL RESPECTS? 
FURTHER, THE CITY'S AND STATE COURTS' READINESS TO SEVER TIES BETWEEN
THE CITY AND PARK IN DEROGATION OF THE WILL, LET ALONE THE CITY'S
EARLIER OPERATION OF THE PARK ON A NONSEGREGATED BASIS DESPITE THE
TERMS OF THE WILL, STRONGLY INDICATES THAT THEY WILL NOT FLINCH FROM
COMPLETING THE SEPARATION OF PARK AND STATE IF ANY TIES REMAIN TO
IMPLICATE THE FOURTEENTH AMENDMENT.    FOR ME THIS FACET OF THE
MAJORITY'S OPINION AFFORDS A WHOLLY UNACCEPTABLE BASIS FOR IMPUTING
UNCONSTITUTIONAL STATE ACTION, RESTING AS IT DOES ON PURE SURMISE AND
CONJECTURE, AND IMPLAUSIBLE ONES AT THAT.  (FN3)

      III. 

QUITE EVIDENTLY UNEASY WITH ITS FIRST GROUND OF DECISION, THE
MAJORITY ADVANCES ANOTHER WHICH ULTIMATELY EMERGES AS THE REAL
HOLDING.  THIS GROUND DERIVES FROM WHAT IS ASSERTED TO BE THE "PUBLIC
CHARACTER" (ANTE, P. 302) OF BACONSFIELD AND THE "MUNICIPAL  ...
NATURE" OF ITS SERVICES (ANTE, P. 301).  HERE IT IS NOT SUGGESTED THAT
BACONSFIELD WILL USE PUBLIC PROPERTY OR FUNDS, BE MANAGED BY THE CITY,
ENJOY AN EXCLUSIVE FRANCHISE, OR EVEN OPERATE UNDER CONTINUING
SUPERVISION OF A PUBLIC REGULATORY AGENCY.  STATE ACTION IS INHERENT IN
THE OPERATION OF BACONSFIELD QUITE INDEPENDENTLY OF ANY SUCH FACTORS,
SO IT SEEMS TO BE SAID, BECAUSE A PRIVATELY OPERATED PARK WHOSE ONLY
CRITERION FOR EXCLUSION IS RACIAL IS WITHIN THE "PUBLIC DOMAIN" (ANTE,
P. 302). 

EXCEPT FOR ONE CASE WHICH WILL BE FOUND TO BE A SHAKY PRECEDENT, THE
CASES CITED BY THE MAJORITY DO NOT SUPPORT THIS NOVEL STATE ACTION
THEORY.  PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451, APPLIED DUE
PROCESS STANDARDS, LIMITED LIKE EQUAL PROTECTION STANDARDS TO INSTANCES
INVOLVING STATE ACTION, TO CERTAIN ACTION OF A PRIVATE CITYWIDE TRANSIT
COMPANY.  STATE ACTION WAS EXPLICITLY PREMISED ON THE CLOSE LEGAL
REGULATION OF THE COMPANY BY THE PUBLIC UTILITIES COMMISSION AND THE
COMMISSION'S APPROVAL OF THE PARTICULAR ACTION UNDER ATTACK.  THE
CONCLUSION MIGHT ALTERNATIVELY HAVE RESTED ON THE NEAR-EXCLUSIVE LEGAL
MONOPOLY ENJOYED BY THE COMPANY, 343 U.S., AT 454, N. 1, BUT IN ALL
EVENTS NOTHING WAS RESTED ON ANY "PUBLIC FUNCTION" THEORY.  WATSON V.
MEMPHIS, 373 U.S. 526, ORDERING SPEEDY DESEGREGATION OF PARKS IN THAT
CITY, CONCERNED RECREATION FACILITIES CONCEDEDLY OWNED OR MANAGED BY
THE CITY GOVERNMENT.  SEE 303 F.2D 863, 864-865.  (FN4)  THE ONLY
FOURTEENTH AMENDMENT CASE (FN5) FINDING STATE ACTION IN THE "PUBLIC
FUNCTION" PERFORMED BY A TECHNICALLY PRIVATE INSTITUTION IS MARSH V.
ALABAMA, 326 U.S. 501, HOLDING THAT A COMPANY-OWNED TOWN OF OVER 1,500
RESIDENTS AND EFFECTIVELY INTEGRATED INTO THE SURROUNDING AREA COULD
NOT SUPPRESS FREE SPEECH ON ITS STREETS IN DISREGARD OF CONSTITUTIONAL
SAFEGUARDS.  WHILE NO STRONGER CASE FOR THE "PUBLIC FUNCTION" THEORY
CAN BE IMAGINED, THE MAJORITY OPINION WON ONLY FIVE OF THE EIGHT
JUSTICES PARTICIPATING, ONE OF WHOM ALSO CONCURRED SEPARATELY, AND
THREE SPOKE OUT IN DISSENT.  THE DOCTRINE OF THAT CASE HAS NOT SINCE
BEEN THE BASIS OF OTHER DECISIONS IN THIS COURT AND CERTAINLY IT HAS
NOT BEEN EXTENDED.  ON THE CONTRARY, SEVERAL YEARS AFTER THE DECISION
THIS COURT DECLINED TO REVIEW TWO NEW YORK CASES WHICH IN TURN HELD
MARSH INAPPLICABLE TO A PRIVATELY OPERATED RESIDENTIAL COMMUNITY OF
APARTMENT BUILDINGS HOUSING 35,000 RESIDENTS, WATCHTOWER BIBLE & TRACT
SOC'Y V. METROPOLITAN LIFE INS. CO., 297 N.Y. 339, 79 N.E.2D 433,
CERTIORARI DENIED, 335 U.S. 886, AND TO A PRIVATELY OWNED HOUSING
DEVELOPMENT OF 25,000 PEOPLE ALLEGED TO DISCRIMINATE ON RACIAL GROUNDS,
DORSEY V. STUYVESANT TOWN CORP., 299 N.Y. 512, 87 N.E.2D 541,
CERTIORARI DENIED, 339 U.S. 981.  SEE ALSO HALL V. VIRGINIA, 335 U.S.
875, DISMISSING THE APPEAL IN 188 VA. 72, 49 S.E.2D 369. 

MORE SERIOUS THAN THE ABSENCE OF ANY FIRM DOCTRINAL SUPPORT FOR THIS
THEORY OF STATE ACTION ARE ITS POTENTIALITIES FOR THE FUTURE.  ITS
FAILING AS A PRINCIPLE OF DECISION IN THE REALM OF FOURTEENTH AMENDMENT
CONCERNS CAN BE SHOWN BY COMPARING - AMONG OTHER EXAMPLES THAT MIGHT BE
DRAWN FROM THE STILL UNFOLDING SWEEP OF GOVERNMENTAL FUNCTIONS - THE
"PUBLIC FUNCTION" OF PRIVATELY ESTABLISHED SCHOOLS WITH THAT OF
PRIVATELY OWNED PARKS.  LIKE PARKS, THE PURPOSE SCHOOLS SERVE IS
IMPORTANT TO THE PUBLIC.  LIKE PARKS, PRIVATE CONTROL EXISTS, BUT THERE
IS ALSO A VERY STRONG TRADITION OF PUBLIC CONTROL IN THIS FIELD.  LIKE
PARKS, SCHOOLS MAY BE AVAILABLE TO ALMOST ANYONE OF ONE RACE OR
RELIGION BUT TO NO OTHERS.  LIKE PARKS, THERE ARE NORMALLY ALTERNATIVES
FOR THOSE SHUT OUT BUT THERE MAY ALSO BE INCONVENIENCES AND
DISADVANTAGES CAUSED BY THE RESTRICTION.  LIKE PARKS, THE EXTENT OF
SCHOOL INTIMACY VARIES GREATLY DEPENDING ON THE SIZE AND CHARACTER OF
THE INSTITUTION. 

FOR ALL THE RESEMBLANCE, THE MAJORITY ASSUMES THAT ITS DECISION
LEAVES UNAFFECTED THE TRADITIONAL VIEW THAT THE FOURTEENTH AMENDMENT
DOES NOT COMPEL PRIVATE SCHOOLS TO ADAPT THEIR ADMISSION POLICIES TO
ITS REQUIREMENTS, BUT THAT SUCH MATTERS ARE LEFT TO THE STATES ACTING
WITHIN CONSTITUTIONAL BOUNDS.  I FIND IT DIFFICULT, HOWEVER, TO AVOID
THE CONCLUSION THAT THIS DECISION OPENS THE DOOR TO REVERSAL OF THESE
BASIC CONSTITUTIONAL CONCEPTS, AND, AT LEAST IN LOGIC, JEOPARDIZES THE
EXISTENCE OF DENOMINATIONALLY RESTRICTED SCHOOLS WHILE MAKING OF EVERY
COLLEGE ENTRANCE REJECTION LETTER A POTENTIAL FOURTEENTH AMENDMENT
QUESTION. 

WHILE THIS PROCESS OF ANALOGY MIGHT BE SPUN OUT TO REACH PRIVATELY
OWNED ORPHANAGES, LIBRARIES, GARBAGE COLLECTION COMPANIES, DETECTIVE
AGENCIES, AND A HOST OF OTHER FUNCTIONS COMMONLY REGARDED AS
NONGOVERNMENTAL THOUGH PARALLELING FIELDS OF GOVERNMENTAL ACTIVITY, THE
EXAMPLE OF SCHOOLS IS, I THINK, SUFFICIENT TO INDICATE THE PERVASIVE
POTENTIALITIES OF THIS "PUBLIC FUNCTION" THEORY OF STATE ACTION.  IT
SUBSTITUTES FOR THE COMPARATIVELY CLEAR AND CONCRETE TESTS OF STATE
ACTION A CATCH-PHRASE APPROACH AS VAGUE AND AMORPHOUS AS IT IS FAR
REACHING.  IT DISPENSES WITH THE SOUND AND CAREFUL PRINCIPLES OF PAST
DECISIONS IN THIS REALM.  AND IT CARRIES THE SEEDS OF TRANSFERRING TO
FEDERAL AUTHORITY VAST AREAS OF CONCERN WHOSE REGULATION HAS WISELY
BEEN LEFT BY THE CONSTITUTION TO THE STATES. 

FN1  THE MAJORITY DISCLAIMS RELIANCE ON THE EARLY GEORGIA CHARITABLE
TRUST STATUTES AUTHORIZING THE ESTABLISHMENT OF RACIALLY RESTRICTED
PARKS AND PERMITTING A CITY TO ACT AS TRUSTEE UNDER SUCH A TRUST.  MY
BROTHER WHITE, HOWEVER, FINDS THAT THE MERE EXISTENCE OF THOSE
STATUTES, ENACTED IN 1905, "INCURABLY TAINTS" THE RACIAL CONDITIONS OF
SENATOR BACON'S WILL (ANTE, P. 305).  FOR SEVERAL REASONS THAT THESIS
SEEMS TO ME TO FALL SHORT.  FIRST, IT IS BY NO MEANS CLEAR THAT GEORGIA
COMMON LAW WOULD NOT HAVE PERMITTED USER RESTRICTIONS ON SUCH A PARK IN
TRUST, SO THAT THE STATUTE WAS BUT DECLARATORY OF EXISTING LAW PRO
TANTO.  SEE, E.G., HOUSTON V. MILLS MEMORIAL HOME, 202 GA. 540, 43
S.E.2D 680 (PERMITTING TRUST FOR HOME FOR NEGRO AGED).  THUS EVEN ON MY
BROTHER WHITE'S PREMISE THAT A STATE IN ALLOWING DISCRIMINATION MAY NOT
DISCRIMINATE AMONG POSSIBLE USER RESTRICTIONS, THE PROPER COURSE WOULD
BE TO REMAND TO THE GEORGIA COURTS TO DETERMINE WHETHER USER-RESTRICTED
TRUSTS SUCH AS SENATOR BACON'S WERE IN ANY EVENT VALID UNDER THE STATE
COMMON LAW.  SECOND, IN ORDER TO FIND AN "INCURABLE TAINT" OF THE
RACIAL CONDITIONS RATHER THAN AN ARGUABLE CLAIM TURNING ON STATE COMMON
LAW, IT IS APPARENTLY SUGGESTED THAT THE STATE STATUTES INVALIDLY
"REMOVED  ...  DOUBT ONLY FOR RACIAL RESTRICTIONS" (ANTE, P. 306) AND
BY THIS CLARIFICATION IMPROPERLY ENCOURAGED SENATOR BACON TO
DISCRIMINATE.  THERE IS, HOWEVER, ABSOLUTELY NO INDICATION WHATEVER IN
THE RECORD THAT SENATOR BACON WOULD HAVE ACTED OTHERWISE BUT FOR THE
STATUTE, A GAP IN REASONING THAT CANNOT BE OBSCURED BY GENERAL
DISCUSSION OF STATE "INVOLVEMENT" OR INFECTION."  THIRD, IT COULD
HARDLY BE ARGUED THAT THE STATUTE IN QUESTION WAS UNCONSTITUTIONAL WHEN
PASSED, IN LIGHT OF THE THEN-PREVAILING CONSTITUTIONAL DOCTRINE; THAT
BEING SO, IT IS DIFFICULT TO PERCEIVE HOW IT CAN NOW BE TAKEN TO HAVE
TAINTED SENATOR BACON'S WILL AT THE TIME HE MADE HIS IRREVOCABLE
CHOICE. 

FN2  SEE R. 20, 22, FOR PROVISIONS OF SENATOR BACON'S WILL ALLOTTING
PROPERTY FOR "THE MANAGEMENT, IMPROVEMENT AND PRESERVATION' OF THE
PARK. 

FN3  TWICE IN ITS OPINION THE MAJORITY INTIMATES IT MIGHT REACH A
DIFFERENT CONCLUSION ON THE CITY'S INVOLVEMENT IF IT HAD A FULLY
DEVELOPED RECORD BEFORE IT.  AT P. 301, ANTE, THE COURT SAYS, "WE ONLY
HOLD THAT WHERE THE TRADITION OF MUNICIPAL CONTROL HAD BECOME FIRMLY
ESTABLISHED, WE CANNOT TAKE JUDICIAL NOTICE THAT THE MERE SUBSTITUTION
OF TRUSTEES INSTANTLY TRANSFERRED THIS PARK FROM THE PUBLIC TO THE
PRIVATE SECTOR."  AND IN CONCLUDING AT P. 302, ANTE, THE OPINION READS:
"WE PUT THE MATTER THAT WAY BECAUSE ON THIS RECORD WE CANNOT SAY THAT
THE TRANSFER OF TITLE PER SE DISENTANGLED THE PARK FROM SEGREGATION
UNDER THE MUNICIPAL REGIME THAT LONG CONTROLLED IT."  THESE CAUTIONS
SEEM TO REINFORCE THE POINT MADE AT THE OUTSET OF THIS DISSENT THAT THE
COURT SHOULD HAVE REFUSED TO ADJUDICATE THE CONSTITUTIONAL ISSUE ON
THIS CLOUDY RECORD.  SEE RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549. 

FN4  THE MAJORITY'S LANGUAGE DIRECTLY FOLLOWING ITS WATSON CITATION
(ANTE, P. 302) - "AND STATE COURTS THAT AID PRIVATE PARTIES TO PERFORM
THAT PUBLIC FUNCTION (MASS RECREATION THROUGH THE USE OF PARKS) ON A
SEGREGATED BASIS IMPLICATE THE STATE IN CONDUCT PROSCRIBED BY THE
FOURTEENTH AMENDMENT" - QUITE EVIDENTLY IS OBLIQUE RELIANCE ON SHELLEY
V. KRAEMER, 334 U.S. 1, WHICH THE MAJORITY DOES NOT EVEN CITE. 
WHATEVER MAY BE THE BASIS OF THAT INSCRUTABLE DECISION, CERTAINLY
NOTHING IN IT PURPORTS TO REST ON ANYTHING RESEMBLING THE "PUBLIC
FUNCTION" THEORY. 

FN5  IN TERRY V. ADAMS, 345 U.S. 461, CITED BY THE COURT, NONE OF THE
THREE PREVAILING OPINIONS GARNERED A MAJORITY, AND SOME COMMENTATORS
HAVE SIMPLY CONCLUDED THAT THE STATE ACTION REQUIREMENT WAS READ OUT OF
THE FIFTEENTH AMENDMENT ON THAT OCCASION.  LEWIS, THE MEANING OF STATE
ACTION, 60 COL. L. REV. 1083, 1094 (1960); NOTE, THE STRANGE CAREER OF
"STATE ACTION" UNDER THE FIFTEENTH AMENDMENT, 74 YALE L.J. 1448, 1456
1459 (1965). 
..END :





















KATCHEN V. LANDY 382 U.S. 323 


NO. 28.  ARGUED NOVEMBER 8, 1965.  - DECIDED JANUARY 17, 1966.  - 336
F.2D 535, AFFIRMED. 


PETITIONER, A CORPORATE OFFICER, WAS AN ACCOMMODATION MAKER ON NOTES
OF THE CORPORATION TO TWO BANKS.  AFTER THE CORPORATION SUFFERED A
SERIOUS FIRE, ITS FUNDS AND COLLECTIONS WERE PLACED IN A TRUST ACCOUNT
UNDER PETITIONER'S CONTROL.  PETITIONER MADE PAYMENTS ON THE NOTES FROM
THIS ACCOUNT WITHIN FOUR MONTHS OF THE BANKRUPTCY OF THE CORPORATION. 
TWO CLAIMS WERE FILED BY PETITIONER IN THE BANKRUPTCY PROCEEDING, ONE
FOR RENT DUE HIM AND ONE FOR A PAYMENT ON ONE OF THE NOTES FROM HIS
PERSONAL FUNDS.  THE TRUSTEE ASSERTED THAT THE PAYMENTS FROM THE TRUST
FUND TO THE BANKS WERE VOIDABLE PREFERENCES AND DEMANDED JUDGMENT FOR
THE AMOUNT OF THE PREFERENCES.  THE REFEREE OVERRULED PETITIONER'S
OBJECTION TO HIS SUMMARY JURISDICTION AND RENDERED JUDGMENT FOR THE
TRUSTEE ON THE PREFERENCES.  THE DISTRICT COURT SUSTAINED THE REFEREE
AND THE COURT OF APPEALS AFFIRMED THE JUDGMENT FOR THE AMOUNT OF THE
PREFERENCES.  HELD: A BANKRUPTCY COURT HAS SUMMARY JURISDICTION TO
ORDER THE SURRENDER OF VOIDABLE PREFERENCES ASSERTED AND PROVED BY THE
TRUSTEE IN RESPONSE TO A CLAIM FILED BY THE CREDITOR WHO RECEIVED THE
PREFERENCES.  PP. 327-340. 

(A)  WHILE THE BANKRUPTCY ACT DOES NOT EXPRESSLY CONFER SUMMARY
JURISDICTION TO ORDER CLAIMANTS TO SURRENDER PREFERENCES, THE SCOPE OF
SUMMARY PROCEEDINGS IS DETERMINED BY CONSIDERATION OF THE STRUCTURE AND
PURPOSE OF THE ACT AS A WHOLE AND THE PARTICULAR PROVISIONS OF THE ACT
IN QUESTION.  P. 328. 

(B)  SUMMARY DISPOSITION IS ONE OF THE MEANS CHOSEN BY THE CONGRESS
TO EFFECTUATE ITS PURPOSE OF SECURING PROMPT SETTLEMENT OF BANKRUPT
ESTATES.  PP. 328-329. 

(C)  THE BASICALLY IMPORTANT POWER GRANTED BY SEC 2A(2) OF THE ACT TO
"ALLOW," "DISALLOW" AND "RECONSIDER" CLAIMS IS TO BE EXERCISED IN
SUMMARY PROCEEDINGS AND NOT BY THE SLOWER AND MORE EXPENSIVE PROCESS OF
A PLENARY SUIT.  PP. 329-330. 

(D)  THE TRUSTEE'S OBJECTIONS UNDER SEC 57G OF THE ACT, WHICH FORBIDS
ALLOWANCE OF A CLAIM TO A CREDITOR WHO HAS RECEIVED PREFERENCES "VOID
OR VOIDABLE UNDER THIS TITLE" WITHOUT SURRENDER OF THE PREFERENCES, IS
PART OF THE ALLOWANCE PROCESS AND IS SUBJECT TO SUMMARY ADJUDICATION BY
A BANKRUPTCY COURT.  PP. 330-331. 

(E)  SECTION 60 OF THE ACT, WHICH DEALS WITH PREFERENCES AND THEIR
VOIDABILITY AND CONFERS CONCURRENT JURISDICTION ON STATE COURTS AND
FEDERAL BANKRUPTCY COURTS TO ENTERTAIN PLENARY SUITS TO RECOVER
PREFERENCES, APPLIES ONLY "WHERE PLENARY SUITS ARE NECESSARY" AND THUS
CONTEMPLATES NONPLENARY RECOVERY PROCEEDINGS.  P. 331. 

(F)  SINCE SUMMARY JURISDICTION IS AVAILABLE TO DETERMINE THE ISSUE
OF PREFERENCE ABSENT A DEMAND FOR SURRENDER OF THE PREFERENCE, IT IS
ALSO AVAILABLE TO ORDER RETURN OF THE PREFERENCE.  THIS FOLLOWS BECAUSE
A BANKRUPTCY COURT, IN PASSING ON A TRUSTEE'S SEC 57G OBJECTION, MUST
DETERMINE THE AMOUNT OF PREFERENCE, IF ANY, SO AS TO ASCERTAIN WHETHER
THE CLAIMANT, SHOULD HE RETURN THE PREFERENCE, HAS SATISFIED THE
CONDITION IMPOSED BY SEC 57G ON ALLOWANCE OF THE CLAIM.  PP. 333-334. 

(G)  WHEN A BANKRUPTCY COURT HAS DEALT WITH THE PREFERENCE ISSUE
UNDER ITS EQUITY POWER NOTHING REMAINS FOR ADJUDICATION IN A PLENARY
SUIT, AS THE NORMAL RULES OF RES JUDICATA AND COLLATERAL ESTOPPEL
APPLY.  P. 334. 

(H)  ALTHOUGH PETITIONER MIGHT BE ENTITLED TO A JURY TRIAL ON THE
PREFERENCE ISSUE IF HE PRESENTED NO CLAIM IN THE BANKRUPTCY PROCEEDING
AND AWAITED PLENARY SUIT BY THE TRUSTEE, HE IS NOT SO ENTITLED WHEN THE
ISSUE ARISES AS PART OF THE PROCESSING OF CLAIMS IN BANKRUPTCY
PROCEEDINGS, TRIABLE IN EQUITY.  PP. 336-337. 

(I)  THE DOCTRINE OF BEACON THEATRES V. WESTOVER, 359 U.S. 500, AND
DAIRY QUEEN V. WOOD, 369 U.S. 469, THAT "WHERE BOTH LEGAL AND EQUITABLE
ISSUES ARE PRESENTED IN A SINGLE CASE, 'ONLY UNDER THE MOST IMPERATIVE
CIRCUMSTANCES  ...  CAN THE RIGHT TO A JURY TRIAL OF LEGAL ISSUES BE
LOST THROUGH PRIOR DETERMINATION OF EQUITABLE CLAIMS,'" IS NOT
APPLICABLE HERE WHERE THERE IS A SPECIFIC STATUTORY SCHEME PROVIDING
FOR THE PROMPT TRIAL OF DISPUTED CLAIMS WITHOUT A JURY.  PP. 338-340. 

KATCHEN V. LANDY, TRUSTEE IN BANKRUPTCY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE DISPUTED ISSUE HERE IS WHETHER A BANKRUPTCY COURT HAS SUMMARY
JURISDICTION TO ORDER THE SURRENDER OF VOIDABLE PREFERENCES ASSERTED
AND PROVED BY THE TRUSTEE IN RESPONSE TO A CLAIM FILED BY THE CREDITOR
WHO RECEIVED THE PREFERENCES.  THE COURT OF APPEALS HELD THAT THE
BANKRUPTCY COURT HAD SUCH SUMMARY JURISDICTION.  336 F.2D 535.  WE
AFFIRM. 

THE CORPORATE BANKRUPT BEGAN BUSINESS ON APRIL 21, 1960, AND BORROWED
$50,000 FROM TWO LOCAL BANKS.  PETITIONER, THEN AN OFFICER OF THE
COMPANY, WAS AN ACCOMMODATION MAKER ON THE TWO CORPORATE NOTES
DELIVERED TO THE BANKS.  AFTER THE CORPORATE BANKRUPT IN THIS CASE
SUFFERED A DISASTROUS FIRE, ITS FUNDS AND COLLECTIONS WERE PLACED IN A
"TRUST ACCOUNT" UNDER THE SOLE CONTROL OF PETITIONER.  FROM THIS
ACCOUNT PETITIONER MADE TWO PAYMENTS ON ONE OF THE COMPANY NOTES ON
WHICH HE WAS AN ACCOMMODATION MAKER AND ONE PAYMENT ON THE OTHER. 
BANKRUPTCY FOLLOWED WITHIN FOUR MONTHS OF THESE PAYMENTS.  PETITIONER
FILED TWO CLAIMS IN THE PROCEEDING, ONE FOR RENT DUE HIM FROM THE
BANKRUPT AND ONE FOR A PAYMENT ON ONE OF THE NOTES MADE FROM HIS
PERSONAL FUNDS.  THE TRUSTEE RESPONDED WITH A PETITION ASSERTING THAT
THE PAYMENTS FROM THE TRUST FUND TO THE BANKS WERE VOIDABLE PREFERENCES
AND DEMANDING JUDGMENT FOR THE AMOUNT OF THE PREFERENCES ALONG WITH THE
AMOUNT OF AN UNPAID STOCK SUBSCRIPTION OWED TO THE CORPORATION BY
PETITIONER.  PETITIONER'S OBJECTION TO THE SUMMARY JURISDICTION OF THE
REFEREE WAS OVERRULED, AND JUDGMENT WAS RENDERED FOR THE TRUSTEE ON
BOTH THE PREFERENCES AND THE STOCK SUBSCRIPTION.  PETITIONER'S CLAIMS
WERE TO BE ALLOWED ONLY WHEN AND IF THE JUDGMENT WAS SATISFIED.  THE
DISTRICT COURT SUSTAINED THE REFEREE.  A DIVIDED COURT OF APPEALS,
SITTING EN BANC, AFTER RECONSIDERING INTERSTATE NATIONAL BANK OF KANSAS
CITY V. LUTHER, 221 F.2D 382 (C.A. 10TH CIR. 1955), CERT. DISMISSED
UNDER RULE 60, 350 U.S. 944, ADHERED TO ITS PRONOUNCEMENTS IN THAT
CASE, AFFIRMED THE JUDGMENT FOR THE AMOUNT OF THE VOIDABLE PREFERENCES
BUT REVERSED THE JUDGMENT FOR THE AMOUNT OF THE STOCK SUBSCRIPTION. 
THE TRUSTEE DID NOT SEEK REVIEW HERE OF THE ADVERSE DECISION ON THE
STOCK SUBSCRIPTION.  WE GRANTED CERTIORARI ON THE CREDITOR'S PETITION
BECAUSE OF THE DIVERSITY OF VIEWS AMONG THE COURTS OF APPEALS ON THE
ISSUE INVOLVED (FN1) AND THE IMPORTANCE OF THE QUESTION IN THE
ADMINISTRATION OF THE BANKRUPTCY LAWS.  380 U.S. 971. 

THE CRUX OF THE DISPUTE HERE CONCERNS THE MODE OF PROCEDURE FOR
TRYING OUT THE PREFERENCE ISSUE.  THE BANKRUPTCY COURTS ARE EXPRESSLY
INVESTED BY STATUTE WITH ORIGINAL JURISDICTION TO CONDUCT PROCEEDINGS
UNDER THE BANKRUPTCY ACT.  (FN2)  THESE COURTS ARE ESSENTIALLY COURTS
OF EQUITY, LOCAL LOAN CO. V. HUNT, 292 U.S. 234, 240; PEPPER V. LITTON,
308 U.S. 295, 304, AND THEY CHARACTERISTICALLY PROCEED IN SUMMARY
FASHION TO DEAL WITH THE ASSETS OF THE BANKRUPT THEY ARE
ADMINISTERING.  THE BANKRUPTCY COURTS "HAVE SUMMARY JURISDICTION TO
ADJUDICATE CONTROVERSIES RELATING TO PROPERTY OVER WHICH THEY HAVE
ACTUAL OR CONSTRUCTIVE POSSESSION."  THOMPSON V. MAGNOLIA PETROLEUM
CO., 309 U.S. 478, 481; CLINE V. KAPLAN, 323 U.S. 97, 98-99; MAY V.
HENDERSON, 268 U.S. 111, 115-116; TAUBEL-SCOTT-KITZMILLER CO. V. FOX,
264 U.S. 426, 432-434.  THEY ALSO DEAL IN A SUMMARY WAY WITH "MATTERS
OF AN ADMINISTRATIVE CHARACTER, INCLUDING QUESTIONS BETWEEN THE
BANKRUPT AND HIS CREDITORS, WHICH ARE PRESENTED IN THE ORDINARY COURSE
OF THE ADMINISTRATION OF THE BANKRUPT'S ESTATE."  TAYLOR V. VOSS, 271
U.S. 176, 181; U.S. FIDELITY CO. V. BRAY, 225 U.S. 205, 218.  THIS IS
ELEMENTARY BANKRUPTCY LAW WHICH PETITIONER DOES NOT DISPUTE. 

BUT PETITIONER POINTS OUT THAT IF A CREDITOR WHO HAS RECEIVED A
PREFERENCE DOES NOT FILE A CLAIM IN THE BANKRUPTCY PROCEEDING AND HOLDS
THE PROPERTY HE RECEIVED UNDER A SUBSTANTIAL ADVERSE CLAIM, SO THAT THE
PROPERTY MAY NOT BE DEEMED WITHIN THE ACTUAL OR CONSTRUCTIVE POSSESSION
OF THE BANKRUPTCY COURT, THE TRUSTEE MAY RECOVER THE PREFERENCE ONLY BY
A PLENARY ACTION UNDER SEC 60 OF THE ACT, 11 U.S.C. SEC 96 (1964 ED.),
SEE TAUBEL-SCOTT-KITZMILLER CO. V. FOX, 264 U.S. 426; AND IN A PLENARY
ACTION IN THE FEDERAL COURTS THE CREDITOR COULD DEMAND A JURY TRIAL,
SCHOENTHAL V. IRVING TRUST CO., 287 U.S. 92, 94-95; ADAMS V. CHAMPION,
294 U.S. 231, 234; COMPARE BUFFUM V. PETER BARCELOUX CO., 289 U.S. 227,
235-236.  PETITIONER CONTENDS THE SITUATION IS THE SAME WHEN THE
CREDITOR FILES A CLAIM AND THE TRUSTEE NOT ONLY OBJECTS TO ALLOWANCE OF
THE CLAIM BUT ALSO DEMANDS SURRENDER OF THE PREFERENCE.  THIS IS SO,
PETITIONER ARGUES, BECAUSE THE BANKRUPTCY ACT DOES NOT CONFER SUMMARY
JURISDICTION ON A BANKRUPTCY COURT TO ORDER PREFERENCES SURRENDERED AND
BECAUSE, IF IT DOES, PETITIONER'S RIGHTS UNDER THE SEVENTH AMENDMENT OF
THE CONSTITUTION ARE VIOLATED.  WE AGREE WITH NEITHER CONTENTION. 

WITH RESPECT TO THE STATUTORY QUESTION, IT MUST BE CONCEDED THAT THE
BANKRUPTCY ACT DOES NOT IN EXPRESS TERMS CONFER SUMMARY JURISDICTION TO
ORDER CLAIMANTS TO SURRENDER PREFERENCES.  BUT CONGRESS HAS OFTEN LEFT
THE EXACT SCOPE OF SUMMARY PROCEEDINGS IN BANKRUPTCY UNDEFINED, AND
THIS COURT HAS ELSEWHERE RECOGNIZED THAT IN THE ABSENCE OF
CONGRESSIONAL DEFINITION THIS IS A MATTER TO BE DETERMINED BY DECISIONS
OF THIS COURT AFTER DUE CONSIDERATION OF THE STRUCTURE AND PURPOSE OF
THE BANKRUPTCY ACT AS A WHOLE, AS WELL AS THE PARTICULAR PROVISIONS OF
THE ACT BROUGHT IN QUESTION.  TAUBEL-SCOTT-KITZMILLER CO. V. FOX, 264
U.S. 426, 431 AND N. 7. 

WHEN CONGRESS ENACTED GENERAL REVISIONS OF THE BANKRUPTCY LAWS IN
1898 AND 1938, IT GAVE "SPECIAL ATTENTION TO THE SUBJECT OF MAKING THE
BANKRUPTCY LAWS INEXPENSIVE IN THEIR ADMINISTRATION."  H.R. REP. NO.
1228, 54TH CONG., 1ST SESS., P. 2; H.R. REP. NO. 1409, 75TH CONG., 1ST
SESS., P. 2; S. REP. NO. 1916, 75TH CONG., 3D SESS., P. 2.  MOREOVER,
THIS COURT HAS LONG RECOGNIZED THAT A CHIEF PURPOSE OF THE BANKRUPTCY
LAWS IS "TO SECURE A PROMPT AND EFFECTUAL ADMINISTRATION AND SETTLEMENT
OF THE ESTATE OF ALL BANKRUPTS WITHIN A LIMITED PERIOD," EX PARTE
CHRISTY, 3 HOW.  292, 312, AND THAT PROVISION FOR SUMMARY DISPOSITION,
"WITHOUT REGARD TO USUAL MODES OF TRIAL ATTENDED BY SOME NECESSARY
DELAY," IS ONE OF THE MEANS CHOSEN BY CONGRESS TO EFFECTUATE THAT
PURPOSE, BAILEY V. GLOVER, 21 WALL.  342, 346.  SEE GENERALLY WISWALL
V. CAMPBELL, 93 U.S. 347, 350-351; U.S. FIDELITY CO. V. BRAY, 225 U.S.
205, 218. 

IT IS EQUALLY CLEAR THAT THE EXPRESSLY GRANTED POWER TO "ALLOW,"
"DISALLOW" AND "RECONSIDER" CLAIMS, BANKRUPTCY ACT SEC 2A(2), 11 U.S.C.
SEC 11(A)(2) (1964 ED.), (FN3) WHICH IS OF "BASIC IMPORTANCE IN THE
ADMINISTRATION OF A BANKRUPTCY ESTATE," GARDNER V. NEW JERSEY, 329 U.S.
565, 573, IS TO BE EXERCISED IN SUMMARY PROCEEDINGS AND NOT BY THE
SLOWER AND MORE EXPENSIVE PROCESSES OF A PLENARY SUIT.  U.S. FIDELITY
CO. V. BRAY, 225 U.S. 205, 218; WISWALL V. CAMPBELL, 93 U.S. 347, 350
351.  THIS POWER TO ALLOW OR TO DISALLOW CLAIMS INCLUDES "FULL POWER TO
INQUIRE INTO THE VALIDITY OF ANY ALLEGED DEBT OR OBLIGATION OF THE
BANKRUPT UPON WHICH A DEMAND OR A CLAIM AGAINST THE ESTATE IS BASED. 
THIS IS ESSENTIAL TO THE PERFORMANCE OF THE DUTIES IMPOSED UPON IT." 
LESSER V. GRAY, 236 U.S. 70, 74.  THE TRUSTEE IS ENJOINED TO EXAMINE
ALL CLAIMS AND TO PRESENT HIS OBJECTIONS, BANKRUPTCY ACT SEC 47A(8), 11
U.S.C.  SEC 75(A)(8) (1964 ED.), (FN4) AND "WHEN OBJECTIONS ARE MADE,
THE COURT IS DUTY BOUND TO PASS ON THEM," GARDNER V. NEW JERSEY, 329
U.S. 565, 573.  "THE WHOLE PROCESS OF PROOF, ALLOWANCE, AND
DISTRIBUTION IS, SHORTLY SPEAKING, AN ADJUDICATION OF INTERESTS CLAIMED
IN A RES," ID., AT 574, AND THUS FALLS WITHIN THE PRINCIPLE QUOTED
ABOVE THAT BANKRUPTCY COURTS HAVE SUMMARY JURISDICTION TO ADJUDICATE
CONTROVERSIES RELATING TO PROPERTY WITHIN THEIR POSSESSION.  FURTHER,
THE ACT ITSELF DIRECTS THAT "OBJECTIONS TO CLAIMS SHALL BE HEARD AND
DETERMINED AS SOON AS THE CONVENIENCE OF THE COURT AND THE BEST
INTERESTS OF THE ESTATES AND THE CLAIMANTS WILL PERMIT," BANKRUPTCY ACT
SEC 57F, 11 U.S.C. SEC 93(F) (1964 ED.), AND A COMMITTEE REPORT
INDICATES THAT THE PROVISION MEANS THAT "OBJECTIONS SHALL BE HEARD AND
DETERMINED IN A SUMMARY WAY," H.R. REP. NO. 1674, 52D CONG., 1ST SESS.,
P. 20. 

DIRECTIVE AROUND WHICH MUCH OF THIS CASE TURNS.  SUBSECTION G FORBIDS
THE ALLOWANCE OF A CLAIM WHEN THE CREDITOR HAS "RECEIVED OR ACQUIRED
PREFERENCES  ...  VOID OR VOIDABLE UNDER THIS TITLE," ABSENT A
SURRENDER OF ANY PREFERENCE.   BANKRUPTCY ACT SEC 57G, 11 U.S.C. SEC
93(G) (1964 ED.).  (FN5)  UNAVOIDABLY AND BY THE VERY TERMS OF THE ACT,
WHEN A BANKRUPTCY TRUSTEE PRESENTS A SEC 57G OBJECTION TO A CLAIM, THE
CLAIM CAN NEITHER BE ALLOWED NOR DISALLOWED UNTIL THE PREFERENCE MATTER
IS ADJUDICATED.  THE OBJECTION UNDER SEC 57G IS, LIKE OTHER OBJECTIONS,
PART AND PARCEL OF THE ALLOWANCE PROCESS AND IS SUBJECT TO SUMMARY
ADJUDICATION BY A BANKRUPTCY COURT.  THIS IS THE PLAIN IMPORT OF SEC 57
AND FINDS SUPPORT IN THE SAME POLICY OF EXPEDITION THAT UNDERLIES THE
NECESSITY FOR SUMMARY ACTION IN MANY OTHER PROCEEDINGS UNDER THE ACT. 

THERE IS NO CONTRARY INDICATION IN ANY OTHER PROVISION OF THE ACT. 
THE PROVISIONS OF THE ACTS OF 1800 AND 1841 WHICH GAVE THE CREDITOR THE
RIGHT TO HAVE HIS CLAIM TRIED BY A JURY WERE NOT REPEATED IN THE ACTS
OF 1867 AND 1898.  (FN6)  SECTION 19 OF THE CURRENT LAW, BANKRUPTCY ACT
SEC 19, 11 U.S.C. SEC 42 (1964 ED.), REQUIRES A JURY IN ONLY LIMITED
SITUATIONS AND IS NOT HELPFUL TO PETITIONER IN THIS CASE.  IT IS TRUE
THAT SEC 60, DEALING WITH PREFERENCES AND THEIR VOIDABILITY, CONFERS
CONCURRENT JURISDICTION ON STATE COURTS AND THE FEDERAL BANKRUPTCY
COURTS TO ENTERTAIN PLENARY SUITS FOR THE RECOVERY OF PREFERENCES.  BUT
BY ITS OWN TERMS THIS PROVISION APPLIES ONLY "WHERE PLENARY PROCEEDINGS
ARE NECESSARY" AND HENCE ITSELF CONTEMPLATES NONPLENARY RECOVERY
PROCEEDINGS.  (FN7) 

IF ANYTHING, THE OTHER PROVISIONS OF THE ACT SUPPORT THE VIEW THAT
SEC 57G OBJECTIONS ARE TO BE SUMMARILY DETERMINED.  SECTION 57K
PROVIDES FOR RECONSIDERATION OF CLAIMS THAT HAVE PREVIOUSLY BEEN
ALLOWED, AND SEC 57L PROVIDES THAT WHEN A CLAIM HAS BEEN RECONSIDERED
AND REJECTED THE TRUSTEE MAY RECOVER ANY DIVIDEND PREVIOUSLY PAID ON
IT, PROCEEDINGS FOR SUCH RECOVERY TO BE WITHIN THE SUMMARY JURISDICTION
OF A BANKRUPTCY COURT.  (FN8)  EVEN UNDER THE PREDECESSOR TO THE
PRESENT SECTION, WHICH DID NOT EXPRESSLY PROVIDE THAT THE DIVIDEND
COULD BE SUMMARILY RECOVERED, BANKRUPTCY ACT OF 1898, SEC 571, 30 STAT.
561, THIS COURT HELD THAT THE REFEREE HAD JURISDICTION TO DETERMINE
WHETHER A PREFERENCE HAS BEEN RECEIVED AND TO ORDER RETURN OF THE
DIVIDEND.  PIRIE V. CHICAGO TITLE & TRUST CO., 182 U.S. 438, 455-456. 
(FN9)  SO TOO, PROCEEDINGS UNDER SEC 60D, 11 U.S.C. SEC 96(D) (1964
ED.), (FN10) FOR EXAMINATION OF THE REASONABLENESS OF AMOUNTS PAID IN
CONTEMPLATION OF BANKRUPTCY TO AN ATTORNEY FOR SERVICES TO BE RENDERED
FOR THE BANKRUPT ARE WITHIN THE SUMMARY JURISDICTION OF THE REFEREE
ALTHOUGH THE ACT DOES NOT EXPRESSLY SO PROVIDE.  IN RE WOOD AND
HENDERSON, 210 U.S. 246; CONRAD, RUBIN & LESSER V. PENDER, 289 U.S.
472. 

SO FAR WE HAVE BEEN DISCUSSING PRINCIPLES APPLICABLE TO A CASE WHERE
THE TRUSTEE PRESENTS A SEC 57G OBJECTION TO A CLAIM BUT DOES NOT SEEK
THE AFFIRMATIVE RELIEF OF SURRENDER OF THE PREFERENCE.  BUT ONCE IT IS
ESTABLISHED THAT THE ISSUE OF PREFERENCE MAY BE SUMMARILY ADJUDICATED
ABSENT AN AFFIRMATIVE DEMAND FOR SURRENDER OF THE PREFERENCE, IT CAN
HARDLY BE DOUBTED THAT THERE IS ALSO SUMMARY JURISDICTION TO ORDER THE
RETURN OF THE PREFERENCE.  THIS IS SO BECAUSE IN PASSING ON A SEC 57G
OBJECTION A BANKRUPTCY COURT MUST NECESSARILY DETERMINE THE AMOUNT OF
PREFERENCE, IF ANY, SO AS TO ASCERTAIN WHETHER THE CLAIMANT, SHOULD HE
RETURN THE PREFERENCE, HAS SATISFIED THE CONDITION IMPOSED BY SEC 57G
ON ALLOWANCE OF THE CLAIM.  SCHWARTZ V. LEVINE & MALIN, INC., 111 F.2D
81 (C.A.2D CIR. 1940).  THUS, ONCE A BANKRUPTCY COURT HAS DEALT WITH
THE PREFERENCE ISSUE NOTHING REMAINS FOR ADJUDICATION IN A PLENARY
SUIT.  THE NORMAL RULES OF RES JUDICATA AND COLLATERAL ESTOPPEL APPLY
TO THE DECISIONS OF BANKRUPTCY COURTS.  CHICOT COUNTY DRAINAGE DISTRICT
V. BAXTER STATE BANK, 308 U.S. 371, 376-377; STOLL V. GOTTLIEB, 305
U.S. 165.  MORE SPECIFICALLY, A CREDITOR WHO OFFERS A PROOF OF CLAIM
AND DEMANDS ITS ALLOWANCE IS BOUND BY WHAT IS JUDICIALLY DETERMINED,
WISWALL V. CAMPBELL, 93 U.S.  347, 351; AND IF HIS CLAIM IS REJECTED,
ITS VALIDITY MAY NOT BE RELITIGATED IN ANOTHER PROCEEDING ON THE
CLAIM.  SAMPSELL V. IMPERIAL PAPER CORP., 313 U.S. 215, 218-219; LESSER
V. GRAY, 236 U.S. 70, 75.  THE COURTS OF APPEALS HAVE UNIFORMLY APPLIED
THESE PRINCIPLES TO HOLD THAT A BANKRUPTCY COURT'S RESOLUTION OF THE
SEC 57G OBJECTION IS RES JUDICATA IN A SUBSEQUENT ACTION BY THE TRUSTEE
UNDER SEC 60 TO RECOVER THE PREFERENCE.  SCHWARTZ V. LEVINE & MALIN,
INC., 111 F.2D 81 (C.A.2D CIR. 1940); GIFFIN V. VOUGHT, 175 F.2D 186
(C.A.2D CIR. 1949); ULLMAN, STERN & KRAUSSE V. COPPARD, 246 F. 124
(C.A. 5TH CIR. 1917); BREIT V. MOORE, 220 F. 97 (C.A. 9TH CIR. 1915);
JOHNSON V. WILSON, 118 F.2D 557 (C.A. 9TH CIR. 1941); SEE IN RE J.R.
PALMENBERG SONS, 76 F.2D 935 (C.A.2D CIR. 1935), AFF'D SUB NOM. BRONX
BRASS FOUNDRY, INC. V. IRVING TRUST CO., 297 U.S. 230.  TO REQUIRE THE
TRUSTEE TO COMMENCE A PLENARY ACTION IN SUCH CIRCUMSTANCES WOULD BE A
MEANINGLESS GESTURE, AND IT IS WELL WITHIN THE EQUITABLE POWERS OF THE
BANKRUPTCY COURT TO ORDER RETURN OF THE PREFERENCE DURING THE SUMMARY
PROCEEDINGS ON ALLOWANCE AND DISALLOWANCE OF CLAIMS.  COMPARE IN RE
WOOD AND HENDERSON, 210 U.S. 246, 256 (DETERMINATION OF REASONABLENESS
OF ATTORNEY'S FEE WOULD BE RES JUDICATA IN SUIT TO RECOVER THE EXCESS),
WITH CONRAD, RUBIN & LESSER V. PENDER, 289 U.S. 472 (UPHOLDING TURNOVER
ORDER).  WHAT WE SAID IN ALEXANDER V. HILLMAN, 296 U.S. 222, IN
CONNECTION WITH THE JURISDICTION OF A RECEIVERSHIP COURT TO ENTERTAIN A
COUNTERCLAIM AGAINST A CLAIMANT IN THE RECEIVERSHIP PROCEEDING, IS
EQUALLY APPLICABLE HERE: 

"BY PRESENTING THEIR CLAIMS RESPONDENTS SUBJECTED THEMSELVES TO ALL
THE CONSEQUENCES THAT ATTACH TO AN APPEARANCE  ...  . 

     *   *         *         *         * 

"RESPONDENTS' CONTENTION MEANS THAT, WHILE INVOKING THE COURT'S
JURISDICTION TO ESTABLISH THEIR RIGHT TO PARTICIPATE IN THE
DISTRIBUTION, THEY MAY DENY ITS POWER TO REQUIRE THEM TO ACCOUNT FOR
WHAT THEY MISAPPROPRIATED.  IN BEHALF OF CREDITORS AND STOCKHOLDERS,
THE RECEIVERS REASONABLY MAY INSIST THAT, BEFORE TAKING AUGHT,
RESPONDENTS MAY BY THE RECEIVERSHIP COURT BE REQUIRED TO MAKE
RESTITUTION.  THAT REQUIREMENT IS IN HARMONY WITH THE RULE GENERALLY
FOLLOWED BY COURTS OF EQUITY THAT HAVING JURISDICTION OF THE PARTIES TO
CONTROVERSIES BROUGHT BEFORE THEM, THEY WILL DECIDE ALL MATTERS IN
DISPUTE AND DECREE COMPLETE RELIEF."  296 U.S., AT 241-242. 

OUR EXAMINATION OF THE STRUCTURE AND PURPOSE OF THE BANKRUPTCY ACT
AND THE PROVISIONS DEALING WITH ALLOWANCE OF CLAIMS THEREFORE LEADS US
TO CONCLUDE, AND WE SO HOLD, THAT THE ACT DOES CONFER SUMMARY
JURISDICTION TO COMPEL A CLAIMANT TO SURRENDER PREFERENCES THAT UNDER
SEC 57G WOULD REQUIRE DISALLOWANCE OF THE CLAIM.  (FN11)  A NUMBER OF
COURTS OF APPEALS, INCLUDING THE COURT BELOW, HAVE REACHED SIMILAR
RESULTS.  (FN12) 

PETITIONER CONTENDS, HOWEVER, THAT THIS READING OF THE STATUTE
VIOLATES HIS SEVENTH AMENDMENT RIGHT TO A JURY TRIAL.  BUT ALTHOUGH
PETITIONER MIGHT BE ENTITLED TO A JURY TRIAL ON THE ISSUE OF PREFERENCE
IF HE PRESENTED NO CLAIM IN THE BANKRUPTCY PROCEEDING AND AWAITED A
FEDERAL PLENARY ACTION BY THE TRUSTEE, SCHOENTHAL V. IRVING TRUST CO.,
287 U.S. 92, WHEN THE SAME ISSUE ARISES AS PART OF THE PROCESS OF
ALLOWANCE AND DISALLOWANCE OF CLAIMS, IT IS TRIABLE IN EQUITY.  THE
BANKRUPTCY ACT, PASSED PURSUANT TO THE POWER GIVEN TO CONGRESS BY ART.
I, SEC 8, OF THE CONSTITUTION TO ESTABLISH UNIFORM LAWS ON THE SUBJECT
OF BANKRUPTCY, CONVERTS THE CREDITOR'S LEGAL CLAIM INTO AN EQUITABLE
CLAIM TO A PRO RATA SHARE OF THE RES, GARDNER V. NEW JERSEY, 329 U.S.
565, 573-574, A SHARE WHICH CAN NEITHER BE DETERMINED NOR ALLOWED UNTIL
THE CREDITOR DISGORGES THE ALLEGED VOIDABLE PREFERENCE HE HAS ALREADY
RECEIVED.  SEE ALEXANDER V. HILLMAN, 296 U.S. 222, 242.  AS BANKRUPTCY
COURTS HAVE SUMMARY JURISDICTION TO ADJUDICATE CONTROVERSIES RELATING
TO PROPERTY OVER WHICH THEY HAVE ACTUAL OR CONSTRUCTIVE POSSESSION,
THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478, 481; CLINE V. KAPLAN,
323 U.S. 97, 98-99; MAY V. HENDERSON, 268 U.S. 111, 115-116, AND AS THE
PROCEEDINGS OF BANKRUPTCY COURTS ARE INHERENTLY PROCEEDINGS IN EQUITY,
LOCAL LOAN CO. V. HUNT, 292 U.S. 234, 240; PEPPER V. LITTON, 308 U.S.
295, 304, THERE IS NO SEVENTH AMENDMENT RIGHT TO A JURY TRIAL FOR
DETERMINATION OF OBJECTIONS TO CLAIMS, INCLUDING SEC 57G OBJECTIONS. 
AS THIS COURT HAS PREVIOUSLY SAID IN ANSWERING THE ARGUMENT THAT
DISPUTED CLAIMS MUST BE TRIED BEFORE A JURY: 

"BUT THOSE WHO USE THIS ARGUMENT LOSE SIGHT OF THE FUNDAMENTAL
PRINCIPLE THAT THE RIGHT OF TRIAL BY JURY, CONSIDERED AS AN ABSOLUTE
RIGHT, DOES NOT EXTEND TO CASES OF EQUITY JURISDICTION.  IF IT BE
CONCEDED OR CLEARLY SHOWN THAT A CASE BELONGS TO THIS CLASS, THE TRIAL
OF QUESTIONS INVOLVED IN IT BELONGS TO THE COURT ITSELF, NO MATTER WHAT
MAY BE ITS IMPORTANCE OR COMPLEXITY. 

    *         *         *         *         * 

"SO, IN CASES OF BANKRUPTCY, MANY INCIDENTAL QUESTIONS ARISE IN THE
COURSE OF ADMINISTERING THE BANKRUPT ESTATE, WHICH WOULD ORDINARILY BE
PURE CASES AT LAW, AND IN RESPECT OF THEIR FACTS TRIABLE BY JURY, BUT,
AS BELONGING TO THE BANKRUPTCY PROCEEDINGS, THEY BECOME CASES OVER
WHICH THE BANKRUPTCY COURT, WHICH ACTS AS A COURT OF EQUITY, EXERCISES
EXCLUSIVE CONTROL.  THUS A CLAIM OF DEBT OR DAMAGES AGAINST THE
BANKRUPT IS INVESTIGATED BY CHANCERY METHODS." 

BARTON V. BARBOUR, 104 U.S. 126, 133-134.  THIS HAS BEEN THE
CHARACTERISTIC VIEW OF THE COURTS.  CARTER V. LECHTY, 72 F.2D 320 (C.A.
8TH CIR. 1934); IN RE MICHIGAN BREWING CO., 24 F. SUPP. 430 (W.D. MICH.
1938), AFF'D, 101 F.2D 1007 (C.A. 6TH CIR. 1939); IN RE RUDE, 101 F.
805 (D.C.D. KY. 1900); IN RE CHRISTENSEN, 101 F. 243 (D.C.N.D. IOWA
1900).  SEE ALSO IN RE WOOD AND HENDERSON, 210 U.S. 246, 258; PIRIE V.
CHICAGO TITLE & TRUST CO., 182 U.S. 438, 455-456. 

AND OF COURSE IT MAKES NO DIFFERENCE, SO FAR AS PETITIONER'S SEVENTH
AMENDMENT CLAIM IS CONCERNED, WHETHER THE BANKRUPTCY TRUSTEE URGES ONLY
A SEC 57G OBJECTION OR ALSO SEEKS AFFIRMATIVE RELIEF.  IN PRACTICAL
EFFECT, THE DENIAL OF A JURY TRIAL WOULD BE NO LESS WERE THE BANKRUPTCY
COURT MERELY TO DETERMINE THE EXISTENCE AND AMOUNT OF THE PREFERENCE,
SINCE THAT DETERMINATION WOULD BE ENTITLED TO RES JUDICATA EFFECT IN
ANY SUBSEQUENT PLENARY ACTION.  AND WE HAVE HELD THAT EQUITY COURTS
HAVE POWER TO DECREE COMPLETE RELIEF AND FOR THAT PURPOSE MAY ACCORD
WHAT WOULD OTHERWISE BE LEGAL REMEDIES.  SEE MITCHELL V. ROBERT DEMARIO
JEWELRY, INC., 361 U.S. 288, 291-292; PORTER V. WARNER CO., 328 U.S.
395, 398-399; ALEXANDER V. HILLMAN, 296 U.S. 222; MCGOWAN V. PARISH,
237 U.S. 285, 296. 

PETITIONER'S FINAL RELIANCE IS ON THE DOCTRINE OF BEACON THEATRES V.
WESTOVER, 359 U.S. 500, AND DAIRY QUEEN V. WOOD, 369 U.S. 469, THAT
"WHERE BOTH LEGAL AND EQUITABLE ISSUES ARE PRESENTED IN A SINGLE CASE,
'ONLY UNDER THE MOST IMPERATIVE CIRCUMSTANCES, CIRCUMSTANCES WHICH IN
VIEW OF THE FLEXIBLE PROCEDURES OF THE FEDERAL RULES WE CANNOT NOW
ANTICIPATE, CAN THE RIGHT TO A JURY TRIAL OF LEGAL ISSUES BE LOST
THROUGH PRIOR DETERMINATION OF EQUITABLE CLAIMS.'"  369 U.S., AT 472
473. 

THE ARGUMENT HERE IS THAT THE SAME ISSUES - WHETHER THE CREDITOR HAS
RECEIVED A PREFERENCE AND, IF SO, ITS AMOUNT - MAY BE PRESENTED EITHER
AS EQUITABLE ISSUES IN THE BANKRUPTCY COURT OR AS LEGAL ISSUES IN A
PLENARY SUIT AND THAT THE BANKRUPTCY COURT SHOULD STAY ITS OWN
PROCEEDINGS AND DIRECT THE BANKRUPTCY TRUSTEE TO COMMENCE A PLENARY
SUIT SO AS TO PRESERVE PETITIONER'S RIGHT TO A JURY TRIAL. 
UNQUESTIONABLY THE BANKRUPTCY COURT WOULD HAVE POWER TO GIVE SUCH AN
INSTRUCTION TO THE TRUSTEE, THOMPSON V. MAGNOLIA PETROLEUM CO., 309
U.S. 478, 483-484; SEE BANKRUPTCY ACT SEC 2A(7), 11 U.S.C. SEC 11(A)(7)
(1964 ED.), AND SOME LOWER COURTS HAVE REQUIRED SUCH A PROCEDURE, B.F.
AVERY & SONS CO. V. DAVIS, 192 F.2D 255 (C.A. 5TH CIR. 1951), CERT.
DENIED, 342 U.S. 945; TRIANGLE ELECTRIC CO. V. FOUTCH, 40 F.2D 353
(C.A. 8TH CIR. 1930); SEE KATCHEN V. LANDY, 336 F.2D 535, 543 (C.A.
10TH CIR. 1964) (PHILLIPS, J., DISSENTING IN PART).  NEVERTHELESS WE
THINK THIS ARGUMENT MUST BE REJECTED. 

AT THE OUTSET, WE NOTE THAT THE DAIRY QUEEN DOCTRINE, IF APPLICABLE
AT ALL, IS APPLICABLE WHETHER OR NOT THE TRUSTEE SEEKS AFFIRMATIVE
RELIEF.  FOR, AS WE HAVE SAID, DETERMINATION OF THE PREFERENCE ISSUES
IN THE EQUITABLE PROCEEDING WOULD IN ANY CASE RENDER UNNECESSARY A
TRIAL IN THE PLENARY ACTION BECAUSE OF THE RES JUDICATA EFFECT TO WHICH
THAT DETERMINATION WOULD BE ENTITLED.  THUS PETITIONER'S ARGUMENT WOULD
REQUIRE THAT IN EVERY CASE WHERE A SEC 57G OBJECTION IS INTERPOSED AND
A JURY TRIAL IS DEMANDED THE PROCEEDINGS ON ALLOWANCE OF CLAIMS MUST BE
SUSPENDED AND A PLENARY SUIT INITIATED, WITH ALL THE DELAY AND EXPENSE
THAT COURSE WOULD ENTAIL.  SUCH A RESULT IS NOT CONSISTENT WITH THE
EQUITABLE PURPOSES OF THE BANKRUPTCY ACT NOR WITH THE RULE OF BEACON
THEATRES AND DAIRY QUEEN, WHICH IS ITSELF AN EQUITABLE DOCTRINE, BEACON
THEATRES V. WESTOVER, 359 U.S., AT 509-510.  IN NEITHER BEACON THEATRES
NOR DAIRY QUEEN WAS THERE INVOLVED A SPECIFIC STATUTORY SCHEME
CONTEMPLATING THE PROMPT TRIAL OF A DISPUTED CLAIM WITHOUT THE
INTERVENTION OF A JURY.  WE THINK CONGRESS INTENDED THE TRUSTEE'S SEC
57G OBJECTION TO BE SUMMARILY DETERMINED; AND TO SAY THAT BECAUSE THE
TRUSTEE COULD BRING AN INDEPENDENT SUIT AGAINST THE CREDITOR TO RECOVER
HIS VOIDABLE PREFERENCE, HE IS NOT ENTITLED TO HAVE HIS STATUTORY
OBJECTION TO THE CLAIM TRIED IN THE BANKRUPTCY COURT IN THE NORMAL
MANNER IS TO DISMEMBER A SCHEME WHICH CONGRESS HAS PRESCRIBED.  SEE
ALEXANDER V. HILLMAN, 296 U.S. 222, 243.  BOTH BEACON THEATRES AND
DAIRY QUEEN RECOGNIZE THAT THERE MIGHT BE SITUATIONS IN WHICH THE COURT
COULD PROCEED TO RESOLVE THE EQUITABLE CLAIM FIRST EVEN THOUGH THE
RESULTS MIGHT BE DISPOSITIVE OF THE ISSUES INVOLVED IN THE LEGAL
CLAIM.  TO IMPLEMENT CONGRESSIONAL INTENT, WE THINK IT ESSENTIAL TO
HOLD THAT THE BANKRUPTCY COURT MAY SUMMARILY ADJUDICATE THE SEC 57G
OBJECTION; AND, AS WE HAVE HELD ABOVE, THE POWER TO ADJUDICATE THE
OBJECTION CARRIES WITH IT THE POWER TO ORDER SURRENDER OF THE
PREFERENCE.  AFFIRMED. 

FN1  B.F. AVERY & SONS CO. V. DAVIS, 192 F.2D 255 (C.A. 5TH CIR.
1951), CERT. DENIED, 342 U.S. 945, HELD THE REFEREE DID NOT HAVE
SUMMARY JURISDICTION TO ENTERTAIN THE TRUSTEE'S DEMAND FOR SURRENDER OF
THE PREFERENCE.  IN AVERY, THE PREFERENCE AROSE OUT OF A DIFFERENT
TRANSACTION THAN THE CREDITOR'S CLAIM, AND A SUBSEQUENT DECISION OF THE
FIFTH CIRCUIT NOTES THAT ALTHOUGH THAT FACT WAS NOT THE ARTICULATED
BASIS OF THE AVERY DECISION, IT MAY NOT PRECLUDE SUMMARY JURISDICTION
TO ORDER RETURN OF A PREFERENCE RECEIVED IN THE SAME TRANSACTION.  GILL
V. PHILLIPS, 337 F.2D 258 (1964), OPINION ON DENIAL OF REHEARING, 340
F.2D 318 (C.A.  5TH CIR. 1965).  THE FIFTH CIRCUIT RULE IS THUS
UNCERTAIN, BUT AVERY AT LEAST PREVENTS SUMMARY RECOVERY OF UNRELATED
PREFERENCES.  SEVERAL COURTS OF APPEALS HAVE UPHELD THE SUMMARY
JURISDICTION OF THE REFEREE OVER COUNTERCLAIMS ARISING OUT OF THE SAME
TRANSACTION AS THE CREDITOR'S CLAIM BUT HAVE STATED THAT SUCH
JURISDICTION DOES NOT EXTEND TO PERMISSIVE COUNTERCLAIMS ARISING OUT OF
DISTINCT TRANSACTIONS.  SEE IN RE SOLAR MFG. CORP., 200 F.2D 327 (C.A.
3D CIR. 1952), CERT. DENIED SUB NOM. MARINE MIDLAND TRUST CO. V.
MCGIRL, 345 U.S. 940; IN RE MAJESTIC RADIO & TELEVISION CORP., 227 F.2D
152 (C.A. 7TH CIR. 1955), CERT. DENIED SUB NOM. DWYER V. FRANKLIN, 350
U.S. 995; PETERS V. LINES, 275 F.2D 919 (C.A. 9TH CIR. 1960).  THE
DECISION PRESENTLY UNDER REVIEW UPHOLDS SUMMARY JURISDICTION TO ORDER
RETURN OF A PREFERENCE WHETHER OR NOT THE PREFERENCE RELATES TO THE
SAME TRANSACTION AS THE CLAIM BUT DECLINES TO EXTEND SUCH JURISDICTION
TO UNRELATED COUNTERCLAIMS NOT INVOLVING A PREFERENCE, SET-OFF,
VOIDABLE LIEN, OR A FRAUDULENT TRANSFER.  336 F.2D, AT 537. 

FN2  BANKRUPTCY ACT SEC 2A, 11 U.S.C. SEC 11(A) (1964 ED.),
PROVIDES: 

"(A)  THE COURTS OF THE UNITED STATES HEREINBEFORE DEFINED AS COURTS
OF BANKRUPTCY ARE CREATED COURTS OF BANKRUPTCY AND ARE INVESTED, WITHIN
THEIR RESPECTIVE TERRITORIAL LIMITS AS NOW ESTABLISHED OR AS THEY MAY
BE HEREAFTER CHANGED, WITH SUCH JURISDICTION AT LAW AND IN EQUITY AS
WILL ENABLE THEM TO EXERCISE ORIGINAL JURISDICTION IN PROCEEDINGS UNDER
THIS TITLE  ...  ." 

FN3  11 U.S.C. SEC 11(A)(2) CONFERS POWER TO: 

"(2)  ALLOW CLAIMS, DISALLOW CLAIMS, RECONSIDER ALLOWED OR DISALLOWED
CLAIMS, AND ALLOW OR DISALLOW THEM AGAINST BANKRUPT ESTATES." 

FN4  11 U.S.C. SEC 75(A)(8) PROVIDES THAT TRUSTEES SHALL: 

"(8)  EXAMINE ALL PROOFS OF CLAIM AND OBJECT TO THE ALLOWANCE OF SUCH
CLAIMS AS MAY BE IMPROPER." 

FN5  11 U.S.C. SEC 93(G) PROVIDES: 

"(G)  THE CLAIMS OF CREDITORS WHO HAVE RECEIVED OR ACQUIRED
PREFERENCES, LIENS, CONVEYANCES, TRANSFERS, ASSIGNMENTS OR
ENCUMBRANCES, VOID OR VOIDABLE UNDER THIS TITLE, SHALL NOT BE ALLOWED
UNLESS SUCH CREDITORS SHALL SURRENDER SUCH PREFERENCES, LIENS,
CONVEYANCES, TRANSFERS, ASSIGNMENTS, OR ENCUMBRANCES."  THE LANGUAGE OF
THIS SECTION, IT WILL BE OBSERVED, IS CONCERNED WITH CREDITORS RATHER
THAN CLAIMS AND THUS CONTEMPLATES THAT ALLOWANCE OF A CLAIM MAY BE
CONDITIONED ON SURRENDER OF PREFERENCES RECEIVED WITH RESPECT TO
TRANSACTIONS UNRELATED TO THE CLAIMS.  THE EXACT REACH OF SEC 57G IS
NOT ENTIRELY SETTLED, SEE 3 COLLIER ON BANKRUPTCY, PARA 57.19(3.2)
(14TH ED.  1964), AND THAT QUESTION IS NOT INVOLVED HERE. 

FN6  THE HISTORY OF THE EARLY JURY TRIAL PROVISIONS IS TRACED IN IN
RE UNITED BUTTON CO., 140 F. 495 (D.C.D. DEL.), AFF'D SUB NOM. BROWN &
ADAMS V. UNITED BUTTON CO., 149 F. 48 (C.A.  3D CIR. 1906). 

FN7  BANKRUPTCY ACT SEC 60B, 11 U.S.C. SEC 96(B) (1964 ED.),
PROVIDES: 

"(B)  ANY SUCH PREFERENCE MAY BE AVOIDED BY THE TRUSTEE IF THE
CREDITOR RECEIVING IT OR TO BE BENEFITED THEREBY OR HIS AGENT ACTING
WITH REFERENCE THERETO HAS, AT THE TIME WHEN THE TRANSFER IS MADE,
REASONABLE CAUSE TO BELIEVE THAT THE DEBTOR IS INSOLVENT.  WHERE THE
PREFERENCE IS VOIDABLE, THE TRUSTEE MAY RECOVER THE PROPERTY OR, IF IT
HAS BEEN CONVERTED, ITS VALUE FROM ANY PERSON WHO HAS RECEIVED OR
CONVERTED SUCH PROPERTY, EXCEPT A BONA-FIDE PURCHASER FROM OR LIENOR OF
THE DEBTOR'S TRANSFEREE FOR A PRESENT FAIR EQUIVALENT VALUE  ...  .
FOR THE PURPOSE OF ANY RECOVERY OR AVOIDANCE UNDER THIS SECTION, WHERE
PLENARY PROCEEDINGS ARE NECESSARY, ANY STATE COURT WHICH WOULD HAVE HAD
JURISDICTION IF BANKRUPTCY HAD NOT INTERVENED AND ANY COURT OF
BANKRUPTCY SHALL HAVE CONCURRENT JURISDICTION."    FN8  BANKRUPTCY ACT
SECS 57K AND 57L, 11 U.S.C. SECS 93(K) AND (L) (1964 ED.), PROVIDE: 

"(K)  CLAIMS WHICH HAVE BEEN ALLOWED MAY BE RECONSIDERED FOR CAUSE
AND REALLOWED OR REJECTED IN WHOLE OR IN PART ACCORDING TO THE EQUITIES
OF THE CASE, BEFORE BUT NOT AFTER THE ESTATE HAS BEEN CLOSED. 

"(L)  WHENEVER A CLAIM SHALL HAVE BEEN RECONSIDERED AND REJECTED, IN
WHOLE OR IN PART, UPON WHICH A DIVIDEND HAS BEEN PAID, THE TRUSTEE MAY
RECOVER FROM THE CREDITOR THE AMOUNT OF THE DIVIDEND RECEIVED UPON THE
CLAIM IF REJECTED IN WHOLE, OR THE PROPORTIONAL PART THEREOF IF
REJECTED ONLY IN PART, AND THE TRUSTEE MAY ALSO RECOVER ANY EXCESS
DIVIDEND PAID TO ANY CREDITOR.  THE COURT SHALL HAVE SUMMARY
JURISDICTION OF A PROCEEDING BY THE TRUSTEE TO RECOVER ANY SUCH
DIVIDENDS." 

FN9  UNDER THE ACT AS IT THEN STOOD, THE PREFERENCE INVOLVED IN PIRIE
WAS NOT VOIDABLE OR RECOVERABLE BUT NEVERTHELESS WAS AMPLE GROUND FOR
DISALLOWANCE OF THE CLAIM.  BUT THE CREDITOR ARGUED THAT COMPELLING
REPAYMENT OF THE DIVIDEND WOULD CONSTITUTE DETERMINATION OF A "SUIT BY
THE TRUSTEE" WITHOUT THE CONSENT OF THE DEFENDANT CONTRARY TO THE
PROVISIONS OF THEN SEC 23B (PRESENTLY CODIFIED, WITHOUT ALTERATIONS
MATERIAL TO THE PRESENT DISCUSSION, IN 11 U.S.C.  SEC 46(B) (1964
ED.))  THAT: 

"B  SUITS BY THE TRUSTEE SHALL ONLY BE BROUGHT OR PROSECUTED IN THE
COURTS WHERE THE BANKRUPT, WHOSE ESTATE IS BEING ADMINISTERED BY SUCH
TRUSTEE, MIGHT HAVE BROUGHT OR PROSECUTED THEM IF PROCEEDINGS IN
BANKRUPTCY HAD NOT BEEN INSTITUTED, UNLESS BY CONSENT OF THE PROPOSED
DEFENDANT."  30 STAT. 552.  THAT ARGUMENT WAS REJECTED BY THE COURT ON
THE GROUND THE PROCEEDINGS UNDER REVIEW WERE NOT A "SUIT" WITHIN THE
MEANING OF THE QUOTED PROVISION.  182 U.S., AT 455-456.  WE APPLY THAT
REASONING IN OUR OPINION TODAY AND HOLD THAT DETERMINATION OF
OBJECTIONS TO CLAIMS, WHETHER OR NOT AFFIRMATIVE RELIEF IS DECREED,
DOES NOT CONSTITUTE ADJUDICATION OF A SUIT BY THE TRUSTEE, AND THUS IT
IS NOT NECESSARY TO ASCERTAIN WHETHER THE CREDITOR HAS "CONSENTED" TO
SUCH DETERMINATION WITHIN THE MEANING OF SEC 23B.  RATHER, OUR DECISION
IS GOVERNED BY THE "TRADITIONAL BANKRUPTCY LAW THAT HE WHO INVOKES THE
AID OF THE BANKRUPTCY COURT BY OFFERING A PROOF OF CLAIM AND DEMANDING
ITS ALLOWANCE MUST ABIDE THE CONSEQUENCES OF THAT PROCEDURE.  WISWALL
V. CAMPBELL, 93 U.S. 347, 351."  GARDNER V. NEW JERSEY, 329 U.S. 565,
573.  AS THIS IS THE BASIS OF OUR DECISION, WE OBVIOUSLY INTIMATE NO
OPINION CONCERNING WHETHER THE REFEREE HAS SUMMARY JURISDICTION TO
ADJUDICATE A DEMAND BY THE TRUSTEE FOR AFFIRMATIVE RELIEF, ALL OF THE
SUBSTANTIAL FACTUAL AND LEGAL BASES FOR WHICH HAVE NOT BEEN DISPOSED OF
IN PASSING ON OBJECTIONS TO THE CLAIM. 

FN10  11 U.S.C. SEC 96(D) PROVIDES: 

"(D) IF A DEBTOR SHALL, DIRECTLY OR INDIRECTLY, IN CONTEMPLATION OF
THE FILING OF A PETITION BY OR AGAINST HIM, PAY MONEY OR TRANSFER
PROPERTY TO AN ATTORNEY AT LAW, FOR SERVICES RENDERED OR TO BE
RENDERED, THE TRANSACTION MAY BE EXAMINED BY THE COURT ON ITS OWN
MOTION OR SHALL BE EXAMINED BY THE COURT ON PETITION OF THE TRUSTEE OR
ANY CREDITOR AND SHALL BE HELD VALID ONLY TO THE EXTENT OF A REASONABLE
AMOUNT TO BE DETERMINED BY THE COURT, AND THE EXCESS MAY BE RECOVERED
BY THE TRUSTEE FOR THE BENEFIT OF THE ESTATE  ...  ." 

FN11  SEE NOTE 5, SUPRA. 

FN12  SEE THE DECISIONS CITED IN NOTE 1, SUPRA, UPHOLDING SUMMARY
JURISDICTION TO GRANT AFFIRMATIVE RELIEF ON RELATED COUNTERCLAIMS THAT
WOULD ALSO BE DEFENSES TO THE CLAIM, PARTICULARLY IN RE SOLAR MFG.
CORP., 200 F.2D 327, 331 (C.A. 3D CIR. 1952), CERT. DENIED SUB NOM.
MARINE MIDLAND TRUST CO. V. MCGIRL, 345 U.S. 940; IN RE MAJESTIC RADIO
& TELEVISION CORP., 227 F.2D 152, 156 (C.A. 7TH CIR. 1955), CERT.
DENIED SUB NOM. DWYER V. FRANKLIN, 350 U.S. 995.  SEE ALSO FLORANCE V.
KRESGE, 93 F.2D 784 (C.A. 4TH CIR. 1938); FLORO REALTY & INV. CO. V.
STEEM ELECTRIC CORP., 128 F.2D 338 (C.A. 8TH CIR. 1942). 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT FOR THE REASONS
STATED IN THE DISSENTING OPINION OF JUDGE PHILLIPS IN THE COURT OF
APPEALS. 
..END :




UNITED STATES V. YAZELL 382 U.S. 341 


NO. 10.  ARGUED OCTOBER 13, 1965.  - DECIDED JANUARY 17, 1966.  - 334
F.2D 454, AFFIRMED. 


THE SMALL BUSINESS ADMINSTRATION (SBA) MADE A DISASTER LOAN TO YAZELL,
AND TO HIS WIFE WHO IS RESPONDENT HERE, FOLLOWING FLOOD DAMAGE TO THEIR
SHOP IN LAMPASAS, TEXAS.  THE LOAN WAS INDIVIDUALLY NEGOTIATED.  THE
CHATTEL MORTGAGE WHICH SECURED THE LOAN SPECIFICALLY MADE REFERENCE TO
TEXAS LAW IN SEVERAL RESPECTS.  AFTER DEFAULT BY THE YAZELLS ON THE
NOTE, AND FORECLOSURE OF THE MORTGAGE, THE GOVERNMENT BROUGHT THIS SUIT
AGAINST THE YAZELLS FOR THE DEFICIENCY.  RESPONDENT, MRS. YAZELL, MOVED
FOR SUMMARY JUDGMENT ON THE GROUND THAT UNDER THE TEXAS LAW OF
COVERTURE SHE HAD NO CAPACITY TO BIND HERSELF PERSONALLY BY CONTRACT ON
THE FACTS OF THIS CASE, AND HENCE THE CONTRACT COULD NOT BE ENFORCED
AGAINST HER SEPARATE PROPERTY.  DURING THE NEGOTIATION OF THE LOAN, THE
SBA HAD AT NO TIME INDICATED AN INTENTION THAT THE TEXAS LAW IN THIS
REGARD WOULD NOT APPLY, NOR HAD THE SBA REQUIRED RESPONDENT TO HAVE HER
DISABILITY OF COVERTURE REMOVED PURSUANT TO TEXAS LAW.  THE DISTRICT
COURT GRANTED THE MOTION FOR SUMMARY JUDGMENT, AND THE COURT OF APPEALS
AFFIRMED, AGAINST THE GOVERNMENT'S CONTENTION THAT EVEN IN THE ABSENCE
OF ANY EXPRESS FEDERAL STATUTE OR REGULATION ON THE MATTER OR ANY
INDICATION IN THE LOAN CONTRACT ITSELF, QUESTIONS OF CAPACITY TO
CONTRACT WITH THE SBA AND TO SUBJECT PROPERTY TO LIABILITY ON SUCH A
CONTRACT ARE GOVERNED BY FEDERAL AND NOT LOCAL LAW, AND THAT FEDERAL
LAW SHOULD NOT RECOGNIZE THE STATE COVERTURE DOCTRINE.  HELD: THERE IS
NO FEDERAL INTEREST WHICH REQUIRES THAT THE LOCAL LAW BE OVERRIDDEN IN
THIS CASE IN ORDER THAT THE FEDERAL GOVERNMENT BE ENABLED TO COLLECT IN
SUPERVENTION OF THE STATE LAW OF COVERTURE.  IT IS NOT NECESSARY TO
DECIDE WHETHER THE STATE LAW APPLIES BY REASON OF ADOPTION BY FEDERAL
LAW OR EX PROPRIO VIGORE.  PP. 345-358. 

(A)  THIS WAS "A CUSTOM-MADE, HAND-TAILORED, SPECIFICALLY NEGOTIATED
TRANSACTION.  IT WAS NOT A NATIONWIDE ACT OF THE FEDERAL GOVERNMENT,
EMANATING IN A SINGLE FORM FROM A SINGLE SOURCE."  PP. 345-348. 

(B)  IN THE ABSENCE OF SPECIFIC PROVISION IN THE FEDERAL STATUTE OR
REGULATION, OR IN THE CONTRACT ITSELF, THE FEDERAL INTEREST IN THE
COLLECTION OF AN AMOUNT DUE ON A CONTRACT INDIVIDUALLY NEGOTIATED BY A
FEDERAL AGENCY DOES NOT JUSTIFY DISPLACING STATE LAW IN THE PECULIARLY
LOCAL FIELD OF FAMILY AND FAMILY-PROPERTY RIGHTS AND IMMUNITIES.  PP.
348-349. 

(C)  THE RIGHT OF THE FEDERAL GOVERNMENT TO CHOOSE THOSE WITH WHOM IT
CONTRACTS IS NOT INVOLVED.  PP. 349-350. 

(D)  STATE INTERESTS WHERE FAMILY AND FAMILY-PROPERTY ARRANGEMENTS
ARE INVOLVED SHOULD NOT BE OVERRIDDEN BY FEDERAL COURTS UNLESS
SUBSTANTIAL NATIONAL INTERESTS WILL BE SIGNIFICANTLY IMPAIRED BY
APPLICATION OF THE STATE LAW.  PP. 351-353. 

(E)  WHERE FEDERAL JUDGE-MADE LAW HAS BEEN CREATED TO SUPERSEDE
SUBSTANTIVE STATE LAW, THE FEDERAL INTEREST HAS REFLECTED A NEED, SUCH
AS THE NECESSITY FOR UNIFORM NATIONAL APPLICATION, FOR SUCH
SUPERSESSION.  CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363,
DISTINGUISHED.  PP. 353-354. 

(F)  THIS COURT HAS, WHERE APPROPRIATE, ADOPTED STATE RULES OF LAW AS
THE FEDERAL LAW TO BE APPLIED, DESPITE THE CONSEQUENT DIVERSITY IN THE
RIGHTS AND OBLIGATIONS OF THE UNITED STATES IN THE DIFFERENT STATES. 
PP. 354-357. 

UNITED STATES V. YAZELL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN ASPECT OF THE CONTINUING PROBLEM OF THE
INTERACTION OF FEDERAL AND STATE LAWS IN OUR COMPLEX FEDERAL SYSTEM. 
SPECIFICALLY, THE QUESTION PRESENTED IS WHETHER, IN THE CIRCUMSTANCES
OF THIS CASE, THE FEDERAL GOVERNMENT, IN ITS ZEALOUS PURSUIT OF THE
BALANCE DUE ON A DISASTER LOAN MADE BY THE SMALL BUSINESS
ADMINISTRATION, MAY OBTAIN JUDGMENT AGAINST ETHEL MAE YAZELL OF
LAMPASAS, TEXAS.  AT THE TIME THE LOAN WAS MADE, TEXAS LAW PROVIDED
THAT A MARRIED WOMAN COULD NOT BIND HER SEPARATE PROPERTY UNLESS SHE
HAD FIRST OBTAINED A COURT DECREE REMOVING HER DISABILITY TO CONTRACT. 
(FN1)  MRS. YAZELL HAD NOT DONE SO.  AT ALL RELEVANT TIMES SHE WAS A
BENEFICIARY OF THE PECULIAR INSTITUTION OF COVERTURE WHICH IS NOW, WITH
SOME EXCEPTIONS, RELEGATED TO HISTORY'S LEGAL MUSEUM. 

THE IMPACT OF THE QUAINT DOCTRINE OF COVERTURE UPON THE FEDERAL
TREASURY IS THEREFORE OF LITTLE CONSEQUENCE.  EVEN THE TEXAS LAW WHICH
GAVE RISE TO THE DIFFICULTY WAS REPEALED IN 1963.  (FN2)  THE AMOUNT IN
CONTROVERSY IN THIS EXTENSIVE LITIGATION, ABOUT $4,000, IS IMPORTANT
ONLY TO THE YAZELL FAMILY.  BUT THE IMPLICATIONS OF THE CONTROVERSY ARE
BY NO MEANS MINOR.  USING CLEARFIELD TRUST CO. V. UNITED STATES, 318
U.S. 363, AS ITS BASE, THE GOVERNMENT HERE SEEKS TO OCCUPY NEW GROUND
IN THE INEVITABLE CONFLICT BETWEEN FEDERAL INTEREST AND STATE LAW.  THE
GOVERNMENT WAS REBUFFED BY THE TRIAL AND APPELLATE COURTS.  WE HOLD
THAT IN THE CIRUMSTANCES OF THIS CASE, THE STATE RULE GOVERNS, AND,
ACCORDINGLY, WE AFFIRM THE DECISION OF THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT, 334 F.2D 454.  (FN3) 

RERERENCE IN SOME DETAIL TO THE FACTS OF THIS CASE WILL ILLUMINATE
THE PROBLEM.  (FN4)  DELBERT L. YAZELL OPERATED IN LAMPASAS, TEXAS, A
SMALL SHOP TO SELL CHILDREN'S CLOTHING.  THE SHOP WAS CALLED YAZELL'S
LITTLE AGES.  OCCASIONALLY, HIS WIFE, ETHEL MAE, ASSISTED IN THE
BUSINESS.  THE BUSINESS, UNDER TEXAS LAW, WAS THE COMMUNITY PROPERTY OF
HUSBAND AND WIFE, WHO, HOWEVER, WERE BARRED BY THE COVERTURE STATUTE
FROM FORMING A PARTNERSHIP.  DILLARD V. SMITH, 146 TEX. 227, 230, 205
S.W.2D 366, 367.  A DISASTROUS FLOOD OCCURRED IN LAMPASAS ON MAY 12,
1957.  THE STOCK OF YAZELL'S LITTLE AGES WAS RUINED.  ITS FIXTURES WERE
SERIOUSLY DAMAGED.  (FN5) 

THE SMALL BUSINESS ADMINISTRATION HAD A REGIONAL OFFICE IN DALLAS,
TEXAS.  AS OF DECEMBER 31, 1963, THE AGENCY HAD OUTSTANDING IN TEXAS,
GENERALLY UNDER THE SUPERVISION OF ITS DALLAS REGIONAL OFFICE, 1,363
BUSINESS LOANS AND 4,172 DISASTER LOANS, AGGREGATING MORE THAN
$60,000,000.  (FN6) UPON THE OCCURRENCE OF THE LAMPASAS FLOOD, THE SBA
OPENED A DISASTER LOAN OFFICE IN LAMPASAS, UNDER THE DIRECTION OF THE
DALLAS OFFICE.  (FN7) 

ON JUNE 10, 1957, MR. YAZELL CONFERRED WITH A REPRESENTATIVE OF THE
SBA ABOUT A LOAN TO ENABLE HIM TO COPE WITH THE DISASTER TO HIS
BUSINESS.  AFTER A CAREFUL, DETAILED BUT COMMENDABLY PROMPT
INVESTIGATION, THE HEAD OF SBA'S DISASTER LOAN OFFICE WROTE MR. YAZELL
ON JUNE 20, 1957, THAT AUTHORIZATION FOR A LOAN OF $12,000 HAD BEEN
RECEIVED.  YAZELL WAS INFORMED THAT THE LOAN WOULD BE MADE UPON HIS
COMPLIANCE WITH CERTAIN REQUIREMENTS.  HE WAS TOLD THAT A NAMED LAW
FIRM IN LAMPASAS HAD BEEN EMPLOYED BY THE SBA TO ASSIST HIM IN
COMPLYING WITH THE TERMS OF THE AUTHORIZATION.  (FN8) 

YAZELL AND HIS WIFE "DOING BUSINESS AS" YAZELL'S LITTLE AGES THEN
SIGNED A NOTE IN THE AMOUNT OF $12,000, PAYABLE TO THE ORDER OF SBA IN
DALLAS AT THE RATE OF $120 PER MONTH INCLUDING 3% INTEREST.  ON THE
SAME DAY THEY ALSO EXECUTED A CHATTEL MORTGAGE ON THEIR STOCK OF
MERCHANDISE AND THEIR STORE FIXTURES.  BY EXPRESS REFERENCE TO ARTICLE
4000 OF THE REVISED CIVIL STATUTES OF TEXAS, THE CHATTEL MORTGAGE
EXEMPTED FROM ITS COVERAGE RETAIL SALES MADE FROM THE STOCK.  THE
CHATTEL MORTGAGE WAS ACCOMPANIED BY A SEPARATE ACKNOWLEDGMENT OF MRS.
YAZELL BEFORE A NOTARY PUBLIC, WHICH WAS REQUIRED BY TEXAS LAW AS A
PART OF THE INSTITUTION OF COVERTURE.  THE NOTARY ATTESTED, IN THE
WORDS OF THE APPLICABLE TEXAS STATUTE, THAT "ETHEL MAE YAZELL, WIFE OF
DELBERT L. YAZELL  ...  WHOSE NAME IS SUBSCRIBED TO THE CHATTEL
MORTGAGE  ...  HAVING BEEN EXAMINED BY ME PRIVILY AND APART FROM HER
HUSBAND  ...  ACKNOWLEDGED SUCH INSTRUMENT TO BE HER ACT AND DEED, AND
DECLARED THAT SHE HAD WILLINGLY SIGNED THE SAME  ...  ."  SEE TEX. REV.
CIV. STAT. ANN. ART. 6608.  SEE ALSO ART. 1300, 4618 (SUPP. 1964),
6605.  THESE STATUTES ALL RELATE TO CONVEYANCES OF THE MARITAL
HOMESTEAD. 

THE NOTE, CHATTEL MORTGAGE AND ACCOMPANYING DOCUMENTS WERE IN DUE
COURSE SENT TO THE DALLAS OFFICE OF SBA.  BOTH THE LAMPASAS LAW FIRM
ENGAGED BY SBA TO ASSIST YAZELL AND THE ACTING REGIONAL COUNSEL OF SBA
CERTIFIED THAT "ALL ACTION HAS BEEN TAKEN DEEMED DESIRABLE  ...  TO
ASSURE THE VALIDITY AND LEGAL ENFORCEABILITY OF THE NOTE."  THEREAFTER,
THE FUNDS WERE MADE AVAILABLE TO YAZELL PURSUANT TO THE TERMS OF THE
LOAN.  (FN9) 

FROM THE FOREGOING, IT IS CLEAR (1) THAT THE LOAN TO YAZELL WAS
INDIVIDUALLY NEGOTIATED IN PAINFULLY PARTICULARIZED DETAIL, AND (2)
THAT IT WAS NEGOTIATED WITH SPECIFIC REFERENCE TO TEXAS LAW INCLUDING
THE PECULIAR ACKNOWLEDGMENT SET FORTH ABOVE.  NONE OF THE PRIOR CASES
DECIDED BY THIS COURT IN WHICH THE FEDERAL INTEREST HAS BEEN HELD TO
OVERRIDE STATE LAW RESEMBLES THIS CASE IN THESE RESPECTS; THE
DIFFERENCES ARE INTENSELY MATERIAL TO THE RESOLUTION OF THE ISSUE
PRESENTED. 

NEXT, IT SEEMS CLEAR (1) THAT THE SBA WAS AWARE AND IS CHARGEABLE
WITH KNOWLEDGE THAT THE CONTRACT WOULD BE SUBJECT TO THE TEXAS LAW OF
COVERTURE; (2) THAT BOTH THE SBA AND THE YAZELLS ENTERED INTO THE
CONTRACT WITHOUT ANY THOUGHT THAT THE DEFENSE OF COVERTURE WOULD BE
UNAVAILABLE TO MRS. YAZELL WITH RESPECT TO HER SEPARATE PROPERTY AS
PROVIDED BY TEXAS LAW; AND (3) THAT, IN THE CIRCUMSTANCES, THE UNITED
STATES IS SEEKING THE UNCONSCIONABLE ADVANTAGE OF RECOURSE TO ASSETS
FOR WHICH IT DID NOT BARGAIN.  THESE POINTS WILL BE BRIEFLY ELABORATED
BEFORE WE REACH THE ULTIMATE ISSUE; WHETHER, DESPITE ALL OF THE
FOREGOING, SOME "FEDERAL INTEREST" REQUIRES US TO GIVE THE UNITED
STATES THIS ADVANTAGE. 

IT WILL BE NOTED THAT THE TRANSACTION WAS CUSTOM-TAILORED BY
OFFICIALS OF SBA LOCATED IN DALLAS AND LAMPASAS, TEXAS, AND UNDOUBTEDLY
FAMILIAR WITH TEXAS LAW.  IT WAS TWICE APPROVED BY TEXAS COUNSEL WHO
CERTIFIED THAT "ALL ACTION HAS BEEN TAKEN DEEMED DESIRABLE" EVEN THOUGH
NO EFFORT WAS MADE TO CAUSE MRS. YAZELL TO HAVE HER INCAPACITY REMOVED
UNDER TEXAS LAW.  (FN10)  IN AT LEAST TWO DECISIONS SINCE 1949, FEDERAL
COURTS HAD APPLIED THE TEXAS LAW OF COVERTURE IN ACTIONS UNDER FEDERAL
STATUTES.  (FN11)  AT NO TIME DOES IT APPEAR THAT THE SBA MADE THE
SLIGHTEST SUGGESTION TO THE YAZELLS OR THEIR SBA-APPOINTED COUNSEL THAT
IT INTENDED TO ENFORCE THE CONTRACT AGAINST MRS. YAZELL'S SEPARATE
PROPERTY.  (FN12)  THE FORMS USED, ALTHOUGH SPECIFICALLY ADAPTED TO
THIS TRANSACTION AND TO TEXAS LAW, MADE NO REFERENCE TO SUCH AN INTENT,
AND IT IS EITHER PROBABLE OR CERTAIN THAT NO SUCH INTENT EXISTED.  AS
STATED ABOVE, THE SBA NOW HAS MORE THAN 5,000 LOANS OUTSTANDING IN
TEXAS.  (FN13)  THE SOLICITOR GENERAL INFORMED THE COURT THAT THE SBA,
IN CONFORMITY WITH THE GENERAL PRACTICE OF GOVERNMENT LENDING AGENCIES,
REQUIRES THAT THE SIGNATURE OF THE WIFE BE OBTAINED AS A ROUTINE
MATTER.  (FN14)  IF IT HAD BEEN INTENDED THAT THE RESULT NOW SOUGHT BY
THE GOVERNMENT WOULD OBTAIN, SIMPLE FAIRNESS AS WELL AS ELEMENTARY
CRAFTSMANSHIP WOULD HAVE DICTATED THAT IN A TEXAS AGREEMENT THE WIFE BE
ADVISED, AT LEAST BY FORMAL NOTATION, THAT SHE WAS, IN THE OPINION OF
SBA, BINDING HER SEPARATE PROPERTY, DESPITE TEXAS LAW TO THE CONTRARY. 
AGAIN, IT MUST BE EMPHASIZED THAT THIS WAS A CUSTOM-MADE, HAND
TAILORED, SPECIFICALLY NEGOTIATED TRANSACTION.  IT WAS NOT A NATIONWIDE
ACT OF THE FEDERAL GOVERNMENT, EMANATING IN A SINGLE FORM FROM A SINGLE
SOURCE.  (FN15) 

WE NOW COME TO THE BASIC ISSUE WHICH THIS CASE PRESENTS TO THIS
COURT.  IS THERE A "FEDERAL INTEREST" IN COLLECTING THE DEFICIENCY FROM
MRS. YAZELL'S SEPARATE PROPERTY WHICH WARRANTS OVERRIDING THE TEXAS LAW
OF COVERTURE?  UNDENIABLY THERE IS ALWAYS A FEDERAL INTEREST TO COLLECT
MONEYS WHICH THE GOVERNMENT LENDS.  IN THIS CASE, THE FEDERAL INTEREST
IS TO PUT THE FEDERAL GOVERNMENT IN POSITION TO LEVY EXECUTION AGAINST
MRS. YAZELL'S SEPARATE PROPERTY, IF SHE HAS ANY, FOR THE UNPAID BALANCE
OF THE $12,000 DISASTER LOAN AFTER THE STOCK OF MERCHANDISE AND
FIXTURES OF THE STORE HAVE BEEN SOLD, AND AFTER ANY OTHER COMMUNITY
PROPERTY HAS BEEN SOLD, AND AFTER MR. YAZELL'S LEVIABLE ASSETS HAVE
BEEN EXHAUSTED.  THE DESIRE OF THE FEDERAL GOVERNMENT TO COLLECT ON ITS
LOANS IS UNDERSTANDABLE.  PERHAPS EVEN IN THE CASE OF A DISASTER LOAN,
THE ZEAL OF ITS REPRESENTATIVES MAY BE COMMENDED.  BUT THIS SERVES
MERELY TO PRESENT THE QUESTION - NOT TO ANSWER IT.  EVERY CREDITOR HAS
THE SAME INTEREST IN THIS RESPECT; EVERY CREDITOR WANTS TO COLLECT. 
(FN16) THE UNITED STATES, AS SOVEREIGN, HAS CERTAIN PREFERENCES AND
PRIORITIES, (FN17) BUT NEITHER CONGRESS NOR THIS COURT HAS EVER
ASSERTED THAT THEY ARE ABSOLUTE.  FOR EXAMPLE, NO CONTENTION WILL OR
CAN BE MADE THAT THE UNITED STATES MAY BY JUDICIAL FIAT COLLECT ITS
LOAN WITH TOTAL DISREGARD OF STATE LAWS SUCH AS HOMESTEAD EXEMPTIONS. 
(FN18)  ACCORDINGLY, GENERALITIES AS TO THE PARAMOUNTCY OF THE FEDERAL
INTEREST DO NOT LEAD INEVITABLY TO THE RESULT THE GOVERNMENT SEEKS. 
OUR PROBLEM REMAINS; WHETHER IN CONNECTION WITH AN INDIVIDUALIZED,
NEGOTIATED CONTRACT, THE FEDERAL GOVERNMENT MAY OBTAIN A PREFERRED
RIGHT WHICH IS NOT PROVIDED BY STATUTE OR SPECIFIC AGENCY REGULATION,
WHICH WAS NOT A PART OF ITS BARGAIN, AND WHICH REQUIRES OVERRIDING A
STATE LAW DEALING WITH THE INTENSELY LOCAL INTERESTS OF FAMILY PROPERTY
AND THE PROTECTION (WHETHER OR NOT IT IS UP-TO-DATE OR EVEN WELCOME) OF
MARRIED WOMEN. 

THE GOVERNMENT ASSERTS THAT THIS OVERRIDING FEDERAL INTEREST CAN BE
FOUND IN THE UNLIMITED RIGHT OF THE FEDERAL GOVERNMENT TO CHOOSE THE
PERSONS WITH WHOM IT WILL CONTRACT, CITING PERKINS V. LUKENS STEEL CO.,
310 U.S. 113, WHICH IS REMOTE FROM THE ISSUE AT HAND.  (FN19)
REALISTICALLY, IN TERMS OF YAZELL'S CASE, THIS HAS NOTHING TO DO WITH
OUR PROBLEM: THE LOAN WAS MADE TO ENABLE YAZELL TO REOPEN THE STORE
AFTER THE DISASTER OF THE FLOOD.  THE SBA CHOSE ITS CONTRACTORS WITH
KNOWLEDGE OF THE LIMITED OFFICE OF MRS. YAZELL'S SIGNATURE UNDER TEXAS
LAW.  THAT KNOWLEDGE DID NOT DETER THEM.  IF THEY HAD "CHOSEN" MRS.
YAZELL AS THEIR CONTRACTOR IN THE SENSE THAT HER SEPARATE PROPERTY
WOULD BE LIABLE FOR THE LOAN, PRESUMABLY THEY WOULD HAVE SAID SO, AND
THEY WOULD HAVE PROCEEDED WITH THE FORMALITIES NECESSARY UNDER TEXAS
LAW TO HAVE HER DISABILITY REMOVED.  (FN20)  IN ALL REALITY, THE
ASSERTION THAT THIS CASE INVOLVES THE RIGHT OF THE UNITED STATES TO
CHOOSE ITS BENEFICIARIES CANNOT DETERMINE THE ISSUE BEFORE US.  (FN21)
THIS CASE IS NOT A CALL TO STRIKE THE SHACKLES OF AN OBSOLETE LAW FROM
THE HANDS OF A BENEFICENT FEDERAL GOVERNMENT, NOR IS IT A SUMMONS TO DO
BATTLE TO VINDICATE THE RIGHTS OF WOMEN.  IT IS MUCH MORE MUNDANE AND
COMMERCIAL THAN EITHER OF THESE.  THE ISSUE IS WHETHER THE FEDERAL
GOVERNMENT MAY VOLUNTARILY AND DELIBERATELY MAKE A NEGOTIATED CONTRACT
WITH KNOWLEDGE OF THE LIMITED CAPACITY AND LIABILITY OF THE PERSONS
WITH WHOM IT CONTRACTS, AND THEREAFTER INSIST, IN DISREGARD OF SUCH
LIMITATION, UPON COLLECTING (A) DESPITE STATE LAW TO THE CONTRARY
RELATING TO FAMILY PROPERTY RIGHTS AND LIABILITIES, AND (B) IN THE
ABSENCE OF FEDERAL STATUTE, REGULATION OR EVEN ANY CONTRACT PROVISION
INDICATING THAT THE STATE LAW WOULD BE DISREGARDED. 

THE INSTITUTION OF COVERTURE IS PECULIAR AND OBSOLETE.  IT WAS
REPEALED IN TEXAS AFTER THE EVENTS OF THIS CASE.  IT EXISTS, IN
MODIFIED FORM, IN MICHIGAN.  (FN22) BUT THE GOVERNMENT'S BRIEF TELLS US
THAT THERE ARE 10 OTHER STATES WHICH LIMIT IN SOME DEGREE THE CAPACITY
OF MARRIED WOMEN TO CONTRACT.  (FN23)  IN SOME OF THESE STATES, SUCH AS
CALIFORNIA, THE LIMITATIONS UPON THE WIFE'S CAPACITY AND RESPONSIBILITY
ARE PART OF AN INGENIOUS, COMPLEX, AND HIGHLY PURPOSEFUL DISTRIBUTION
OF PROPERTY RIGHTS BETWEEN HUSBAND AND WIFE, GEARED TO THE INSTITUTION
OF COMMUNITY PROPERTY AND DESIGNED TO STRIKE A BALANCE BETWEEN
EFFICIENT MANAGEMENT OF JOINT PROPERTY AND PROTECTION OF THE SEPARATE
PROPERTY OF EACH SPOUSE.  (FN24)  IT IS AN APPROPRIATE INFERENCE FROM
THE GOVERNMENT'S BRIEF THAT ITS POSITION IS THAT THE FEDERAL
GOVERNMENT, IN ORDER TO COLLECT ON A NEGOTIATED DEBT, MAY OVERRIDE ALL
SUCH STATE ARRANGEMENTS DESPITE THE ABSENCE OF CONGRESSIONAL ENACTMENT
OR AGENCY REGULATION OR EVEN ANY STIPULATION IN THE NEGOTIATED CONTRACT
OR ANY WARNING TO THE PERSONS WITH WHOM IT CONTRACTS.  (FN25) 

WE DO NOT HERE CONSIDER THE QUESTION OF THE CONSTITUTIONAL POWER OF
THE CONGRESS TO OVERRIDE STATE LAW IN THESE CIRCUMSTANCES BY DIRECT
LEGISLATION (FN26) OR BY APPROPRIATE AUTHORIZATION TO AN ADMINISTRATIVE
AGENCY COUPLED WITH SUITABLE IMPLEMENTING ACTION BY THE AGENCY.  (FN27)
WE DECIDE ONLY THAT THIS COURT, IN THE ABSENCE OF SPECIFIC
CONGRESSIONAL ACTION, SHOULD NOT DECREE IN THIS SITUATION THAT
IMPLEMENTATION OF FEDERAL INTERESTS REQUIRES OVERRIDING THE PARTICULAR
STATE RULE INVOLVED HERE.  BOTH THEORY AND THE PRECEDENTS OF THIS COURT
TEACH US SOLICITUDE FOR STATE INTERESTS, PARTICULARLY IN THE FIELD OF
FAMILY AND FAMILY-PROPERTY ARRANGEMENTS.  THEY SHOULD BE OVERRIDDEN BY
THE FEDERAL COURTS ONLY WHERE CLEAR AND SUBSTANTIAL INTERESTS OF THE
NATIONAL GOVERNMENT, WHICH CANNOT BE SERVED CONSISTENTLY WITH RESPECT
FOR SUCH STATE INTERESTS, WILL SUFFER MAJOR DAMAGE IF THE STATE LAW IS
APPLIED.    EACH STATE HAS ITS COMPLEX OF FAMILY AND FAMILY-PROPERTY
ARRANGEMENTS.  THERE IS PRESENTED IN THIS CASE NO REASON FOR BREACHING
THEM.  WE HAVE NO FEDERAL LAW RELATING TO THE PROTECTION OF THE
SEPARATE PROPERTY OF MARRIED WOMEN.  WE SHOULD NOT HERE INVENT ONE AND
IMPOSE IT UPON THE STATES, DESPITE OUR PERSONAL DISTASTE FOR COVERTURE
PROVISIONS SUCH AS THOSE INVOLVED IN THIS CASE.  NOR SHOULD WE
ESTABLISH A PRINCIPLE WHICH MIGHT CAST DOUBT UPON THE EFFECTIVENESS IN
RELEVANT TYPES OF FEDERAL SUITS OF THE LAWS OF 11 OTHER STATES RELATING
TO THE CONTRACTUAL POSITIONS OF MARRIED WOMEN, WHICH, AS THE
GOVERNMENT'S BRIEF WARNS US, WOULD BE AFFECTED BY OUR DECISION IN THE
PRESENT CASE.  CLEARLY, IN THE CASE OF THESE SBA LOANS THERE IS NO
"FEDERAL INTEREST" WHICH JUSTIFIES INVADING THE PECULIARLY LOCAL
JURISDICTION OF THESE STATES, IN DISREGARD OF THEIR LAWS, AND OF THE
SUBTLETIES REFLECTED BY THE DIFFERENCES IN THE LAWS OF THE VARIOUS
STATES WHICH GENERALLY REFLECT IMPORTANT AND CAREFULLY EVOLVED STATE
ARRANGEMENTS DESIGNED TO SERVE MULTIPLE PURPOSES. 

THE DECISIONS OF THIS COURT DO NOT COMPEL OR EMBRACE THE RESULT
SOUGHT BY THE GOVERNMENT.  NONE OF THE CASES IN WHICH THIS COURT HAS
DEVISED AND APPLIED A FEDERAL PRINCIPLE OF LAW SUPERSEDING STATE LAW
INVOLVED AN ISSUE ARISING FROM AN INDIVIDUALLY NEGOTIATED CONTRACT. 
NONE OF THESE CASES PERMITTED FEDERAL IMPOSITION AND ENFORCEMENT OF
LIABILITY ON A PERSON WHO, ACCORDING TO STATE LAW, WAS NOT COMPETENT TO
CONTRACT.  NONE OF THESE CASES OVERRODE STATE LAW IN THE PECULIARLY
STATE PROVINCE OF FAMILY OR FAMILY-PROPERTY ARRANGEMENTS.  (FN28) 

THIS COURT'S DECISIONS APPLYING "FEDERAL LAW" TO SUPERSEDE STATE LAW
TYPICALLY RELATE TO PROGRAMS AND ACTIONS WHICH BY THEIR NATURE ARE AND
MUST BE UNIFORM IN CHARACTER THROUGHOUT THE NATION.  THE LEADING CASE,
CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363, INVOLVED THE
REMEDIAL RIGHTS OF THE UNITED STATES WITH RESPECT TO FEDERAL COMMERCIAL
PAPER.  UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, WAS TREATED BY
THE COURT AS INVOLVING THE LIABILITY OF PROPERTY OF THE UNITED STATES
TO LOCAL TAXES.  (FN29)  D'OENCH, DUHME & CO. V. FEDERAL DEPOSIT INS.
CORP., 315 U.S. 447, INVOLVED THE RIGHTS OF THE FDIC AS AN INSURER
ASSIGNEE OF A BANK AS AGAINST THE MAKER OF A NOTE GIVEN THE BANK ON THE
SECRET UNDERSTANDING IT WOULD NOT BE CALLED FOR PAYMENT.  THE BANK
DEPOSIT INSURANCE PROGRAM IS GENERAL AND STANDARDIZED.  IN ALL RELEVANT
ASPECTS, THE TERMS ARE EXPLICITLY DICTATED BY FEDERAL LAW.  (FN30) THE
COURT HELD THAT FDIC WAS ENTITLED TO A FEDERAL RULE PROTECTING IT
AGAINST MISREPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE BANKS
IT INSURES, ACCOMPLISHED BY SECRET ARRANGEMENTS INCONSISTENT WITH THE
POLICY OF THE APPLICABLE FEDERAL STATUTES. 

ON THE OTHER HAND, IN THE TYPE OF CASE MOST CLOSELY RESEMBLING THE
PRESENT PROBLEM, STATE LAW HAS INVARIABLY BEEN OBSERVED.  THE LEADING
CASE IS FINK V. O'NEIL, 106 U.S. 272.  THERE THE UNITED STATES SOUGHT
TO LEVY EXECUTION AGAINST PROPERTY DEFINED BY STATE LAW AS HOMESTEAD
AND EXEMPTED BY THE STATE FROM EXECUTION.  THIS COURT HELD THAT REVISED
STATUTES SEC 916, NOW RULE 69 OF THE FEDERAL RULES OF CIVIL PROCEDURE,
GOVERNED, AND THAT THE UNITED STATES' REMEDIES ON JUDGMENTS WERE
LIMITED TO THOSE GENERALLY PROVIDED BY STATE LAW.  (FN31)  THESE
HOMESTEAD EXEMPTIONS VARY WIDELY.  THEY RESULT IN A DIVERSITY OF RULES
IN THE VARIOUS STATES AND IN A LIMITATION UPON THE POWER OF THE FEDERAL
GOVERNMENT TO COLLECT WHICH IS COMPARABLE TO THE COVERTURE LIMITATION. 
(FN32)  THE PURPOSE AND THEORY OF THE TWO TYPES OF LIMITATIONS ARE
OBVIOUSLY RELATED.  (FN33)  ANOTHER ILLUSTRATION OF ACCEPTANCE OF
DIVERGENT AND LIMITING STATE LAWS IS AFFORDED BY RECONSTRUCTION FINANCE
CORP. V. BEAVER COUNTY, 328 U.S. 204.  IN THAT CASE THIS COURT HELD
THAT THE STATE CLASSIFICATION OF PROPERTY OWNED BY THE RECONSTRUCTION
FINANCE CORPORATION AS "REAL PROPERTY" FOR TAX PURPOSES WOULD PREVAIL
IN DETERMINING WHETHER THE PROPERTY WAS WITHIN THE CLASS OF PROPERTY AS
TO WHICH CONGRESS HAD WAIVED THE FEDERAL EXEMPTION FROM LOCAL
TAXATION. 

GENERALLY, IN THE CASES APPLYING STATE LAW TO LIMIT OR CONDITION THE
ENFORCEMENT OF A FEDERAL RIGHT, THE COURT HAS INSISTED THAT THE STATE
LAW IS BEING "ADOPTED" AS THE FEDERAL RULE.  EVEN SO, IT HAS CAREFULLY
POINTED OUT THAT THIS THEORY WOULD MAKE IT POSSIBLE TO "ADOPT," AS THE
OPERATIVE "FEDERAL" LAW, DIFFERING LAWS IN THE DIFFERENT STATES,
DEPENDING UPON THE STATE WHERE THE RELEVANT TRANSACTION TAKES PLACE. 
(FN34) 

ALTHOUGH IT IS UNNECESSARY TO DECIDE IN THE PRESENT CASE WHETHER THE
TEXAS LAW OF COVERTURE SHOULD APPLY EX PROPRIO VIGORE - ON THE THEORY
THAT THE CONTRACT HERE WAS MADE PURSUANT AND SUBJECT TO THIS PROVISION
OF STATE LAW - OR BY "ADOPTION" AS A FEDERAL PRINCIPLE, IT IS CLEAR
THAT THE STATE RULE SHOULD GOVERN.  THERE IS HERE NO NEED FOR
UNIFORMITY.  THERE IS NO PROBLEM IN COMPLYING WITH STATE LAW; IN FACT,
SBA TRANSACTIONS IN EACH STATE ARE SPECIFICALLY AND IN GREAT DETAIL
ADAPTED TO STATE LAW.  (FN35)  THERE IS IN THIS CASE NO DEFENSIBLE
REASON TO OVERRIDE STATE LAW UNLESS, DESPITE THE CONTRARY INDICATIONS
IN FINK V. O'NEIL AND ELSEWHERE AS HAS BEEN SET FORTH, WE ARE TO TAKE
THE POSITION THAT THE FEDERAL GOVERNMENT IS ENTITLED TO COLLECT
REGARDLESS OF THE LIMITS OF ITS CONTRACT AND REGARDLESS OF ANY STATE
LAWS, HOWEVER LOCAL AND PECULIARLY DOMESTIC THEY MAY BE. 

THE DECISION BELOW IS AFFIRMED. 

FN1  TEX. REV. CIV. STAT. ANN. ART. 4626.  THIS SECTION, AS AMENDED
BY ACTS 1963, 58TH LEG., P. 1188, C. 472, SEC 6, NOW GIVES TO TEXAS
WIVES THE CAPACITY TO CONTRACT.  UNDER OLD ART. 4626 A MARRIED WOMAN
COULD HAVE HER DISABILITY REMOVED. 

FN2  SEE NOTE 1, SUPRA. 

FN3  THE COURT OF APPEALS BY A VOTE OF TWO TO ONE AFFIRMED THE
DECISION OF THE DISTRICT COURT IN FAVOR OF THE WIFE, BASED UPON THE
TEXAS LAW OF COVERTURE.  THE ACTION WAS INSTITUTED BY THE UNITED STATES
TO RECOVER THE BALANCE DUE ON A NOTE OF APPROXIMATELY $12,000, SECURED
BY A CHATTEL MORTGAGE.   THE NOTE WAS SIGNED BY BOTH HUSBAND AND WIFE. 
THE MORTGAGE HAD BEEN FORECLOSED, THE PLEDGED ASSETS SOLD, AND A
DEFICIENCY JUDGMENT WAS RENDERED AGAINST THE HUSBAND IN THIS SAME
ACTION.  NO APPEAL WAS TAKEN BY THE HUSBAND. 

FN4  IN THE DISCUSSION WHICH FOLLOWS, AS SPECIFICALLY INDICATED BY
REFERENCE TO "SBA FILE," WE HAVE OCCASIONALLY REFERRED TO THE OFFICIAL
FILE OF THE SMALL BUSINESS ADMINISTRATION ON THE YAZELL LOAN TO
SUPPLEMENT THE RECORD WITH FACTS WHICH DISCLOSE THE AGENCY'S PRACTICE. 

FN5  SBA FILE. 

FN6  BRIEF OF THE UNITED STATES, P. 12. 

FN7  SBA FILE. 

FN8  SBA FILE. 

FN9  SBA FILE. 

FN10  SEE NOTE 1, SUPRA. 

FN11  UNITED STATES V. BELT, 88 F. SUPP. 510 (D.C.S.D. TEX.)(SUIT
HELD BARRED BY COVERTURE); TEXAS WATER SUPPLY CORP. V. RECONSTRUCTION
FINANCE CORP., 204 F.2D 190 (C.A. 5TH CIR.)(CASE HELD WITHIN AN
EXCEPTION TO COVERTURE). 

FN12  SBA FILE. 

FN13  THE NINTH CIRCUIT, IN BUMB V. UNITED STATES, 276 F.2D 729 (C.A.
9TH CIR.), APTLY OBSERVED IN RESPONSE TO A CLAIM BY THE SMALL BUSINESS
ADMINISTRATION THAT THE "NEED FOR UNIFORMITY" EXCUSED IT FROM COMPLYING
WITH A CALIFORNIA "BULK SALES" STATUTE REQUIRING NOTICE OF INTENT TO
MORTGAGE: 

"IT IS TRUE THAT THE SMALL BUSINESS ADMINISTRATION OPERATES
THROUGHOUT THE UNITED STATES, BUT SUCH FACT RAISES NO PRESUMPTION OF
THE DESIRABILITY OF A UNIFORM FEDERAL RULE WITH RESPECT TO THE VALIDITY
OF CHATTEL MORTGAGES IN PURSUANCE OF THE LENDING PROGRAM OF THE SMALL
BUSINESS ADMINISTRATION.  THE LARGENESS OF THE BUSINESS OF THE SMALL
BUSINESS ADMINISTRATION OFFERS NO EXCUSE FOR FAILURE TO COMPLY WITH
REASONABLE REQUIREMENTS OF LOCAL LAW, WHICH ARE DESIGNED TO PROTECT
LOCAL CREDITORS AGAINST UNDISCLOSED ACTION BY THEIR LOCAL DEBTORS WHICH
IMPAIR THE VALUE OF THEIR CLAIMS.  IT MUST BE ASSUMED THAT THE SMALL
BUSINESS ADMINISTRATION MAINTAINS COMPETENT PERSONNEL FAMILIAR WITH THE
LAWS OF THE VARIOUS STATES IN WHICH IT CONDUCTS BUSINESS, AND WHO ARE
ADVISED OF THE STEPS REQUIRED BY LOCAL LAW IN ORDER TO ACQUIRE A VALID
SECURITY INTEREST WITHIN THE VARIOUS STATES."  ID., AT 738. 

FN14  BRIEF FOR THE UNITED STATES, P. 11. 

FN15  CONTRAST CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363. 
COMPARE ALSO UNITED STATES V. HELZ, 314 F.2D 301 (C.A. 6TH CIR.),
ARISING UNDER THE NATIONAL HOUSING ACT, 48 STAT.  1246, 12 U.S.C. SEC
1702 ET SEQ., WHICH ISSUES SEPARATE FORMS FOR EACH STATE BUT DOES NOT
NEGOTIATE WITH INDIVIDUAL APPLICANTS.  SEE UNITED STATES V. VIEW CREST
GARDEN APTS., INC., 268 F.2D 380 (C.A. 9TH CIR.), CERT. DENIED, 361
U.S. 884. 

FN16  IN THIS CASE, THE YAZELLS' GENERAL CREDITORS COLLECTED ABOUT
20% OF THEIR CLAIMS. 

FN17  FOR EXAMPLE, CONGRESS HAS PROVIDED FOR PREFERENCE IN THE CASE
OF DEBTS OWED THE UNITED STATES ON TAX DELINQUENCIES.  SEE 26 U.S.C.
SECS 6321, 6323 (1964 ED.); 11 U.S.C.  SEC 104(A)(4) (1964 ED.).  31
U.S.C. SEC 191 (1964 ED.)  ALSO PROVIDES A PRIORITY FOR THE UNITED
STATES IN SOME SITUATIONS INVOLVING ORDINARY DEBTS.  SEE KENNEDY, THE
RELATIVE PRIORITY OF THE FEDERAL GOVERNMENT: THE PERNICIOUS CAREER OF
THE INCHOATE AND GENERAL LIEN, 63 YALE L.J. 905 (1954). 

FN18  SEE PP. 354-356, INFRA. 

FN19  THE GOVERNMENT RELIES UPON PERKINS, AT P. 127, FOR THE
PROPOSITION THAT THE UNITED STATES HAS "THE UNRESTRICTED POWER  ...  TO
DETERMINE THOSE WITH WHOM IT WILL DEAL."  BRIEF FOR THE UNITED STATES,
P. 9.  PERKINS HAD NOTHING TO DO WITH THE QUESTION OF THE POWER OF THE
UNITED STATES TO OVERRIDE STATE LAW DECLARING THE INCAPACITY OF PERSONS
TO CONTRACT.  THE COURT THERE HELD THAT PRIVATE COMPANIES ALLEGING
THEIR RIGHT AS POTENTIAL BIDDERS FOR GOVERNMENT CONTRACTS LACKED
STANDING TO CHALLENGE A FEDERAL STATUTE REQUIRING FEDERAL PROCUREMENT
CONTRACTS TO INCLUDE A MINIMUM WAGE STIPULATION.  THE GOVERNMENT QUOTES
THE DECISION OUT OF CONTEXT, OMITTING THE FOLLOWING ITALICIZED WORDS:
THE COURT STATED THAT "LIKE PRIVATE INDIVIDUALS AND BUSINESSES, THE
GOVERNMENT ENJOYS THE UNRESTRICTED POWER  ...  TO DETERMINE THOSE WITH
WHOM IT WILL DEAL, AND TO FIX THE TERMS AND CONDITIONS UPON WHICH IT
WILL MAKE NEEDED PURCHASES."  MRS.  YAZELL WOULD SUBSCRIBE TO THAT
PROPOSITION - INDEED, THE BRUNT OF HER CASE IS THAT THE GOVERNMENT, IN
ENTERING ORDINARY COMMERCIAL CONTRACTS, SHOULD BE TREATED "LIKE PRIVATE
INDIVIDUALS AND BUSINESSES." 

FN20  SEE NOTE 1, SUPRA. 

FN21  IT IS WORTH NOTING THAT IN THE ONLY SITUATION WHERE THE UNITED
STATES' POWER TO CHOOSE ITS CONTRACTORS MIGHT ARISE - WHERE A MARRIED
WOMAN HAS SEPARATE PROPERTY IN RESPECT OF WHICH SHE SEEKS OR THE
GOVERNMENT OFFERS A LOAN - THE TEXAS LAW EXPRESSLY PROVIDED FOR HER
POWER TO CONTRACT AND TO BIND HER SEPARATE PROPERTY.  TEX. REV. CIV.
STAT. ANN. ART. 4614. 

FN22  MICH. STAT. ANN. SECS 26.161, 26.181, 26.182, 26.183.  SEE
KOENGETER V. HOLZBAUGH, 332 MICH. 280, 50 N.W.2D 778; WEINGARTEN,
CREDITORS' RIGHTS, 10 WAYNE L. REV. 184 (1963). 

FN23  BRIEF FOR THE UNITED STATES, P. 15, N. 10.  THE STATES ARE, IN
ADDITION TO TEXAS AND MICHIGAN: ALABAMA, ARIZONA, CALIFORNIA, FLORIDA,
GEORGIA, IDAHO, INDIANA, KENTUCKY, NEVADA, AND NORTH CAROLINA.  WITH
THE EXCEPTION OF MICHIGAN, SEE N. 22, SUPRA, NONE OF THESE STATES OTHER
THAN TEXAS HAS A COVERTURE RULE APPLICABLE TO FACTS SUCH AS THOSE
PRESENTED BY THIS CASE. 

FN24  IN CALIFORNIA A WIFE HAS FULL CAPACITY TO CONTRACT.  CAL. CIV.
CODE SEC 158.  HER SEPARATE PROPERTY IS LIABLE FOR HER OWN DEBTS, AS
ARE HER EARNINGS.  CAL. CIV. CODE SECS 167, 171.  HOWEVER, IN
CONNECTION WITH CALIFORNIA'S COMMUNITY PROPERTY LAW GOVERNING THE
MANAGEMENT AND CONTROL OF COMMUNITY PROPERTY, SEE CAL. CIV. CODE (SUPP.
1964) SECS 172, 172A, THE COMMUNITY PROPERTY IS GENERALLY NOT SUBJECT
TO THE DEBTS OF THE WIFE.  CAL. CIV. CODE SEC 167.  SEE ALSO ARIZ. REV.
STAT. ANN. SEC 25-214; NEV. REV. STAT. SEC 123.230. 

FN25  THE GOVERNMENT'S ARGUMENT, IF ACCEPTED BY THIS COURT, WOULD
CAST DOUBT, IN ADDITION, ON STATE LAWS PREVENTING WIVES FROM CONVEYING
REALTY WITHOUT THE CONSENT OF THEIR HUSBANDS - SEE, E.G., ALA. CODE
TIT. 34, SEC 73; FLA. STAT. ANN. (SUPP. 1964) SEC 708.08; IND. ANN.
STAT. SEC 38-102; KY. REV. STAT. SEC 404.020 (EXECUTORY SALES
CONTRACT); N.C. GEN.  STAT. SEC 52-2 - OR FROM ACTING AS GUARANTORS OR
SURETIES - SEE, E.G., GA. CODE ANN. SEC 53-503; KY. REV. STAT. SEC
404.010. 

FN26  SEE, E.G., UNITED STATES V. BESS, 357 U.S. 51, WHICH HELD THAT
THE EXEMPTIONS FROM EXECUTION TO SATISFY FEDERAL TAX LIENS PROVIDED IN
SEC 3691 OF THE INTERNAL REVENUE CODE OF 1939 (NOW 26 U.S.C. SEC 6334)
ARE EXCLUSIVE OF STATE EXEMPTIONS. 

FN27  SEE, E.G., UNITED STATES V. SHIMER, 367 U.S. 374 (PENNSYLVANIA
RULE PRECLUDING MORTGAGEE WHO BUYS MORTGAGED PROPERTY AT FORECLOSURE
FROM SEEKING DEFICIENCY JUDGMENT HELD INCONSISTENT WITH SCHEME OF
VETERANS ADMINISTRATION REGULATIONS UNDER WHICH MORTGAGE ISSUED). 

FN28  ON THE CONTRARY, IN DE SYLVA V. BALLENTINE, 351 U.S. 570, THE
COURT APPLIED STATE LAW TO DEFINE "CHILDREN" ALTHOUGH THE ISSUE AROSE
IN CONNECTION WITH THE RIGHT TO RENEW A COPYRIGHT - A PECULIARLY
FEDERAL AREA.  CF. RECONSTRUCTION FINANCE CORP. V. BEAVER COUNTY, 328
U.S. 204; COMMISSIONER V. STERN, 357 U.S. 39.   WE DO NOT REGARD
WISSNER V. WISSNER, 338 U.S. 655, AS AN EXCEPTION.  THERE CALIFORNIA
SOUGHT TO APPLY ITS COMMUNITY PROPERTY RULE THAT A WIFE HAS A HALF
INTEREST IN HER HUSBAND'S LIFE INSURANCE IF THE PREMIUMS COME OUT OF
COMMUNITY PROPERTY (HIS EARNINGS), IN DEROGATION OF THE FEDERAL
STATUTORY POLICY THAT SOLDIERS HAVE AN ABSOLUTE RIGHT TO NAME THE
BENEFICIARY OF THEIR NATIONAL SERVICE LIFE INSURANCE.  THE COURT HELD
THAT THE CALIFORNIA RULE WOULD DIRECTLY HAVE UNDERCUT CONGRESSIONAL
INTENT WITH RESPECT TO THE FEDERAL GOVERNMENT'S GENERALIZED, NATIONWIDE
INSURANCE PROGRAM.    FN29  THE COURT HELD THAT A STATE TAX RULE UNDER
WHICH MOVABLE MACHINERY WAS PART OF THE REALTY OF A MANUFACTURER FOR
PURPOSES OF AN AD VALOREM PROPERTY TAX COULD NOT BE APPLIED SO AS TO
SUBJECT A MANUFACTURER RENTING THE MACHINERY FROM THE UNITED STATES TO
SUCH AN ENHANCEMENT OF THE VALUE OF ITS REALTY.  THE COURT HELD THAT
THE TITLE TO THE MACHINERY WAS IN THE UNITED STATES, AND WAS EFFECTIVE
TO PROTECT THE MACHINERY FROM LOCAL TAXES.  BUT COMPARE RECONSTRUCTION
FINANCE CORP. V. BEAVER COUNTY, 328 U.S. 204. 

FN30  THE STATUTE INVOLVED IN D'OENCH, DUHME IS NOW THE FEDERAL
DEPOSIT INSURANCE ACT, 64 STAT. 873, 12 U.S.C. SEC 1811 ET SEQ. (1964
ED.). 

FN31  SEE ALSO CUSTER V. MCCUTCHEON, 283 U.S. 514.  RULE 69 PROVIDES
THAT PROCEDURE ON EXECUTION SHALL BE "IN ACCORDANCE WITH THE PRACTICE
AND PROCEDURE OF THE STATE IN WHICH THE DISTRICT COURT IS HELD  ...
EXCEPT THAT ANY STATUTE OF THE UNITED STATES GOVERNS TO THE EXTENT THAT
IT IS APPLICABLE."  WITH THE ONE EXCEPTION OF FEDERAL TAX CASES, SEE N.
26, SUPRA, STATE EXECUTION PROCEDURE SEEMS TO BE APPLIED WITHOUT
QUESTION, EVEN IN SUITS BY THE UNITED STATES.  SEE, E.G., UNITED STATES
V. HARPOOTLIAN, 24 F.2D 646 (C.A.2D CIR.)(APPLYING STATE LAW ON THE
TIME WITHIN WHICH EXAMINATION CAN BE HAD OF A JUDGMENT DEBTOR AFTER AN
EXECUTION AGAINST HIM IS RETURNED UNSATISFIED, OVER AN OBJECTION BY THE
GOVERNMENT THAT THIS WAS AN IMPROPER APPLICATION OF A STATUTE OF
LIMITATIONS TO THE SOVEREIGN); UNITED STATES V. MILLER, 229 F.2D 839
(C.A. 3D CIR.)(PENNSYLVANIA PROHIBITION OF GARNISHMENT OF FUTURE DEBTS
OF GARNISHEE TO DEBTOR). 

FN32  IN TEXAS, THE VALUE OF THE HOMESTEAD THAT IS EXEMPT FROM
EXECUTION IS $5,000, AS OF THE TIME OF ITS DESIGNATION AS A HOMESTEAD
AND WITHOUT REFERENCE TO THE VALUE OF ANY IMPROVEMENTS, TEX. REV. CIV.
STAT. ANN. ART. 3833; TEX. CONST. ART. 16, SECS 50, 51.  IN TENNESSEE
AND MAINE, THE HOMESTEAD EXEMPTION IS $1,000, TENN. CONST. ART. 11, SEC
11; ME REV. STAT. ANN. TIT. 14, SECS 4551, 4552; IN CALIFORNIA, IT IS
$15,000 FOR THE HEAD OF A FAMILY, $7,500 FOR ALL OTHERS, CAL. CIV. CODE
SECS 1240, 1260 (SUPP. 1964); CF. CAL. CONST.  ART. 17, SEC 1.  IF MRS.
YAZELL'S SEPARATE PROPERTY WERE A HOMESTEAD UNDER TEXAS LAW, SHE MIGHT
HAVE BEEN ABLE TO DEFEAT EXECUTION ON THE JUDGMENT THAT MIGHT HAVE BEEN
ENTERED AGAINST HER IN THIS SUIT TO A FAR GREATER DEGREE THAN SOME
OTHER DEBTOR TO THE SBA COULD WHO HAPPENED TO RESIDE IN TENNESSEE OR
MAINE; AND A CALIFORNIAN WOULD DO EVEN BETTER THAN MRS. YAZELL. 

OTHER EXEMPTIONS FROM EXECUTION VARY SIMILARLY.  FOR EXAMPLE, TEXAS,
MAINE AND CALIFORNIA PROVIDE FOR DETAILED PERSONAL EXEMPTIONS.  IN
TEXAS, A FAMILY IS EXEMPT NOT ONLY AS TO ITS HOMESTEAD, BUT ALSO ITS
FURNITURE, CEMETERY LOT, IMPLEMENTS OF HUSBANDRY, TOOLS AND BOOKS OF A
TRADE, FAMILY LIBRARY AND PICTURES, FIVE COWS AND THEIR CALVES, TWO
MULES, TWO HORSES, ONE WAGON, ONE CARRIAGE, ONE GUN, 20 HOGS, 20 SHEEP,
HARNESS, PROVISIONS AND FORAGE FOR HOME CONSUMPTION, CURRENT WAGES,
CLOTHING, 20 GOATS, 50 CHICKENS, 30 TURKEYS, 30 DUCKS, 30 GEESE, 30
GUINEAS, AND ONE DOG.  A SOMEWHAT LESS EXTENSIVE LIST IS PROVIDED FOR
PERSONS WHO ARE NOT CONSTITUENTS OF A FAMILY.  TEX. REV. CIV. STAT.
ANN. ART. 3832, 3835.  CF. ALSO ME. REV.  STAT. ANN. TIT. 14, SEC 4401;
CAL. CIV. PROC. CODE SECS 690-690.52 (1955 ED. AND SUPP. 1964).  TEXAS
ALSO HAS OTHER SPECIAL PROTECTIONS, INCLUDING A PROVISION APPLICABLE TO
FERRYMEN, SAVING TO THEM THEIR FERRYBOAT AND TACKLE, TEX. REV. CIV.
STAT. ANN. ART. 3836. 

FN33  RULE 64, ADOPTING STATE PROVISIONAL REMEDIES FOR SECURITY IN
ADVANCE OF JUDGMENT, CAN LEAD TO THE SAME KIND OF DIVERSITY AS DOES
RULE 69.  CF. DE BEERS CONSOLIDATED MINES, LTD.  V. UNITED STATES, 325
U.S. 212.  STATE PROVISIONAL REMEDIES VARY GREATLY.  SEE 7 MOORE'S FED.
PRAC.  PARA 64.04(3). 

FN34  "IN OUR CHOICE OF THE APPLICABLE FEDERAL RULE WE HAVE
OCCASIONALLY SELECTED STATE LAW."  CLEARFIELD TRUST CO. V. UNITED
STATES, 318 U.S. 363, 367.  THE COURT OBSERVED IN CLEARFIELD THAT THE
DIFFICULTY OF DETERMINING WHICH STATE RULE TO APPLY COULD BE A
PERSUASIVE ARGUMENT IN FAVOR OF A FEDERAL RULE.  IBID.  NO SUCH
DIFFICULTY EXISTS HERE, OF COURSE. 

IN ROYAL INDEMNITY CO. V. UNITED STATES, 313 U.S. 289, CITED BY THE
GOVERNMENT FOR THE PROPOSITION THAT "THE RIGHTS OF THE UNITED STATES
UNDER CONTRACTS ENTERED INTO AS PART OF AN AUTHORIZED NATIONWIDE
PROGRAM ARE TO BE DETERMINED BY FEDERAL AND NOT BY STATE LAW," BRIEF
FOR THE UNITED STATES, P. 7, THE COURT, WHILE INSISTING THAT "THE RULE
GOVERNING THE INTEREST TO BE RECOVERED AS DAMAGES FOR DELAYED PAYMENT
OF A CONTRACTUAL OBLIGATION TO THE UNITED STATES IS NOT CONTROLLED BY
STATE STATUTE OR LOCAL COMMON LAW," 313 U.S., AT 296, NONETHELESS HELD
THAT THE STATUTORY RATE PREVAILING IN THE STATE WHERE THE OBLIGATION
WAS UNDERTAKEN AND TO BE PERFORMED WAS A SUITABLE ONE FOR ADOPTION BY
THE FEDERAL COURTS.  CF. ALSO BOARD OF COMMISSIONERS V. UNITED STATES,
308 U.S. 343. 

FN35  THE FINANCIAL ASSISTANCE MANUAL OF THE SMALL BUSINESS
ADMINISTRATION, SBA-500, IS REPLETE WITH ADMONITIONS TO FOLLOW STATE
LAW CAREFULLY.  THUS SEC 401.03 READS: 

"COMPLIANCE WITH APPLICABLE LAWS.  WHEN THE UNITED STATES DISBURSES
ITS FUNDS, IT IS EXERCISING A CONSTITUTIONAL FUNCTION OR POWER AND ITS
RIGHTS AND DUTIES ARE GOVERNED BY FEDERAL RATHER THAN LOCAL LAW. 
HOWEVER, IT IS FREQUENTLY NECESSARY, IN THE OBTAINING OF A MARKETABLE
TITLE OR ENFORCEABLE SECURITY INTEREST IN PROPERTY, TO FOLLOW LOCAL
PROCEDURAL REQUIREMENTS AND STATUTES.  ACCORDINGLY, CARE SHOULD BE USED
IN FOLLOWING OR MEETING ALL APPLICABLE REQUIREMENTS AND STATUTES OF THE
STATE IN WHICH THE PROPERTY IS LOCATED, INCLUDING THE FILING AND
REFILING, RECORDING AND RE-RECORDING OF ANY DOCUMENTS."  SEE ALSO,
E.G., SECS 401.06, 402.04, 403.03, 404.01, 404.02, 406.02, 407.03,
407.04 ("STATE LAWS VARY AS TO THE DOMINION A LENDER MUST EXERCISE OVER
ASSIGNED ACCOUNTS RECEIVABLE  ... .  IN DRAFTING SERVICING PROVISIONS
...  COUNSEL SHOULD CAREFULLY CONSIDER THE APPLICABLE LAWS OF THE STATE
...  ."), 408.01, 410.08 ("IN ORDER TO GUARD AGAINST THIS AGENCY'S
LIABILITY FOR PAYMENT OF INSURANCE PREMIUMS UNDER THE STANDARD
MORTGAGEE CLAUSE IN ANY STATE THE LAW OF WHICH  ...  MAKES THE
MORTGAGEE SO LIABLE, THE REGIONAL DIRECTOR SHALL  ...  ."), 706.01. 
WHERE A DISASTER AREA IS DISTANTLY LOCATED FROM THE REGIONAL OFFICE AND
WHERE SPEED AND ECONOMY OF ADMINISTRATION MAKE SUCH PROCEDURE
ADVISABLE," TO RECOMMEND TO THE GENERAL COUNSEL THAT "LOCAL COUNSEL BE
APPOINTED AND THAT HE BE AUTHORIZED TO RELY ON SUCH COUNSEL FOR ALL
LEGAL MATTERS AND CLOSING OPINIONS."  SEE, IN ADDITION, 13 CFR (1965
SUPP.) SEC 122.17. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION WITH A SINGLE QUALIFICATION, NAMELY, THAT
I PLACE NO RELIANCE ON ANY OF THE PARTICULARITIES OF THE NEGOTIATIONS
BETWEEN THE PARTIES RESPECTING THIS LOAN.  IN MY VIEW THE CONCLUSION
THAT TEXAS LAW GOVERNS THE ISSUE BEFORE US IS AMPLY JUSTIFIED BY THE
COURT'S APPRAISAL OF THE COMPETING STATE AND FEDERAL INTERESTS AT
STAKE, IRRESPECTIVE OF WHETHER THE PARTIES NEGOTIATED WITH SPECIFIC
REFERENCE TO TEXAS LAW. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
WHITE JOIN, DISSENTING. 

BECAUSE I THINK THE DISSENTING OPINION OF JUDGE PRETTYMAN IN THE
COURT OF APPEALS GIVES A MORE ACCURATE PICTURE OF THE RELEVANT FACTS
AND ISSUES IN THIS CASE THAN DOES THE OPINION OF THE COURT, AND BECAUSE
I AGREE WITH THE LEGAL CONCLUSION JUDGE PRETTYMAN REACHED FOR THE
REASONS HE GAVE, I SET OUT HIS DISSENT BELOW AND ADOPT IT AS MY OWN. 

"MRS. YAZELL AND HER HUSBAND, TRADING AS A PARTNERSHIP, BORROWED
MONEY FROM THE FEDERAL GOVERNMENT THROUGH THE SMALL BUSINESS
ADMINISTRATION.  THEY SIGNED A NOTE FOR THE LOAN.  THEY ALSO SIGNED, AS
SECURITY FOR THE LOAN, A CHATTEL MORTGAGE ON THE MERCHANIDSE IN THEIR
STORE.  THEY COULD NOT PAY, AND THE GOVERNMENT FORECLOSED ON THE
SECURITY.  A DEFICIENCY REMAINED.  THE GOVERNMENT SUED ON THE NOTE,
PRAYING JUDGMENT FOR THE BALANCE OF THE LOAN.  MRS. YAZELL MOVED FOR
SUMMARY JUDGMENT ON THE GROUND THAT SHE IS A MARRIED WOMAN AND SO, IN
TEXAS, NO PERSONAL JUDGMENT AND NO JUDGMENT AFFECTING HER SEPARATE
ESTATE CAN BE RENDERED AGAINST HER, WITH A FEW EXCEPTIONS NOT HERE
MATERIAL.  THE DISTRICT COURT JUDGE AGREED WITH HER, AND SO DO MY
BRETHREN ON THIS COURT.  I AM CONTRARI-MINDED. 

"A LOAN FROM THE FEDERAL GOVERNMENT IS A FEDERAL MATTER AND SHOULD BE
GOVERED BY FEDERAL LAW.  THERE BEING NO FEDERAL STATUTE ON THE SUBJECT,
THE COURTS MUST FASHION A RULE.  THIS IS THE CLEAR HOLDING OF
CLEARFIELD TRUST CO. V. UNITED STATES.  (FN1) 

"TO EFFECTUATE THE POLICY OF THE SMALL BUSINESS ACT, LOANS OF MANY
HUNDREDS OF THOUSANDS OF DOLLARS EACH YEAR TO BUSINESSES MUST BE MADE
THROUGHOUT THE COUNTRY.  THESE LOANS CAN BE MADE ONLY UNDER CONDITIONS
WHICH WILL REASONABLY ASSURE REPAYMENT.  (FN2)  I THINK THE ACT SHOULD
BE OF UNIFORM APPLICATION THROUGHOUT THE COUNTRY.  IF LOCAL RULES ARE
TO GOVERN FEDERAL CONTRACTS IN RESPECT TO THE CAPACITY OF MARRIED WOMEN
TO CONTRACT, SO TOO SHOULD LOCAL RULES AS TO ALL OTHER FEATURES OF
CONTRACTUAL CAPACITY GOVERN SUCH CONTRACTS.  CHAOS WHICH WOULD NULLIFY
FEDERAL PROGRAMS FOR DISASTER RELIEF WOULD ARISE.  AND OF COURSE THERE
IS NO REASON TO RESTRICT THIS DECISION TO LOANS UNDER THE SMALL
BUSINESS ACT.  IT WOULD NECESSARILY APPLY WITH EQUAL FORCE TO EVERY
OTHER FEDERAL PROGRAM WHICH INVOLVES CONTRACTS BETWEEN THE FEDERAL
GOVERNMENT AND INDIVIDUALS.  A MULTITUDE OF PROGRAMS WILL BE FRUSTRATED
BY IT. 

"IT SEEMS TO ME THAT, IF A PERSON HAS CAPACITY TO GET MONEY FROM THE
FEDERAL GOVERNMENT, HE HAS THE CAPACITY TO GIVE IT BACK.  THE PRESENT
LAWSUIT DOES NOT INVOLVE A GENERAL LIABILITY FOR DEBT; IT INVOLVES
MERELY THE OBLIGATION TO REPAY TO THE GOVERNMENT SPECIFIC MONEY
BORROWED FROM THE GOVERNMENT.  IT SEEMS TO ME THAT IF A PERSON BORROWS
A HORSE FROM A NEIGHBOR HE OUGHT TO BE REQUIRED TO GIVE IT BACK IF THE
OWNER WANTS IT BACK, WHETHER OR NOT THE BORROWER IS A MARRIED WOMAN.  I
SUPPOSE THE TEXAS LAW, BY NULLIFYING REPAYMENTS BY MARRIED WOMEN, TENDS
TO MINIMIZE ILL-ADVISED BORROWING.  BUT I THINK THE FEDERAL RULE OUGHT
TO BE THAT YOU MUST REPAY WHAT YOU BORROW. 

"IT SEEMS TO ME THAT UNITED STATES V. HELZ (FN3) WAS CORRECTLY
DECIDED BY THE SIXTH CIRCUIT AND THAT IT APPLIES HERE.  I WOULD FOLLOW
IT."  334 F.2D 454, 456. 

THOUGH I THINK THAT JUDGE PRETTYMAN'S DISSENT IS ENOUGH TO JUSTIFY
HIS REJECTION OF THE TEXAS LAW OF "COVERTURE" AS A PART OF FEDERAL LAW,
I CONSIDER IT APPROPRIATE TO ADD ANOTHER REASON, WHICH IN ITSELF WOULD
BE ENOUGH FOR ME.  THE TEXAS LAW OF "COVERTURE," WHICH WAS ADOPTED BY
ITS JUDGES AND WHICH THE STATE'S LEGISLATURE HAS NOW LARGELY ABANDONED,
RESTS ON THE OLD COMMON-LAW FICTION THAT THE HUSBAND AND WIFE ARE ONE. 
THIS RULE HAS WORKED OUT IN REALITY TO MEAN THAT THOUGH THE HUSBAND AND
WIFE ARE ONE, THE ONE IS THE HUSBAND.  THIS FICTION RESTED ON WHAT I
HAD SUPPOSED IS TODAY A COMPLETELY DISCREDITED NOTION THAT A MARRIED
WOMAN, BEING A FEMALE, IS WITHOUT CAPACITY TO MAKE HER OWN CONTRACTS
AND DO HER OWN BUSINESS.  I SAY "DISCREDITED" REFLECTING ON THE VAST
NUMBER OF WOMEN IN THE UNITED STATES ENGAGING IN THE PROFESSIONS OF
LAW, MEDICINE, TEACHING, AND SO FORTH, AS WELL AS THOSE ENGAGED IN
PLAIN OLD BUSINESS VENTURES AS MRS. YAZELL WAS.  IT SEEMS AT LEAST
UNIQUE TO ME THAT THIS COURT IN 1966 SHOULD EXALT THIS ARCHAIC REMNANT
OF A PRIMITIVE CASTE SYSTEM TO AN HONORED PLACE AMONG THE LAWS OF THE
UNITED STATES. 

FN1  "1 318 U.S. 363  ...  (1943)." 

FN2  "2 15 U.S.C. SEC 636(A)(7); 13 C.F.R. SEC 120.4-2(C) (1958)." 

FN3  "3 314 F.2D 301 (1963)." 
..END :















KOEHRING CO. V. HYDE CONSTR. CO. 382 U.S. 362 


NO. 593.  DECIDED JANUARY 17, 1966.  - CERTIORARI GRANTED; 348 F.2D 643,
REVERSED AND REMANDED. 


ON MARCH 10, 1964, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT ISSUED
AN ORDER STATING THAT THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
MISSISSIPPI HAD ERRED IN FAILING TO COMPLY WITH AN EARLIER ORDER TO
TRANSFER THE CASE TO THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OKLAHOMA AND THAT PENDING PHYSICAL TRANSFER OF THE RECORD "THIS ORDER
SHALL CONSTITUTE A TRANSFER TO ENABLE THE PARTIES TO PRESENT THE MATTER
TO THE DISTRICT COURT OF OKLAHOMA."  THE OKLAHOMA FEDERAL COURT ASSUMED
JURISDICTION THE NEXT DAY AND ENTERED AN ORDER TEMPORARILY RESTRAINING
RESPONDENTS FROM PROCEEDING WITH A STATE COURT TRIAL IN MISSISSIPPI. 
RESPONDENTS DISREGARDED THE RESTRAINING ORDER AND ON MARCH 14 THE
OKLAHOMA FEDERAL COURT FOUND THEM IN CIVIL CONTEMPT.  RESPONDENTS
CONTINUED WITH THE STATE ACTION AND OBTAINED A JUDGMENT AGAINST
PETITIONER THE ENFORCEMENT OF WHICH THE OKLAHOMA FEDERAL COURT
ENJOINED, ORDERING A RETRIAL IN FEDERAL COURT IN OKLAHOMA.  THE COURT
OF APPEALS FOR THE TENTH CIRCUIT REVERSED THIS DECREE ON APPEAL,
HOLDING THAT THE OKLAHOMA FEDERAL COURT LACKED JURISDICTION AT THE TIME
IT ENTERED THE ORIGINAL RESTRAINING ORDER SINCE IT HAD NOT YET RECEIVED
THE CASE FILE FROM THE TRANSFEROR COURT.  HELD: THE OKLAHOMA DISTRICT
COURT ACQUIRED JURISDICTION ON MARCH 11 IN ACCORDANCE WITH THE FIFTH
CIRCUIT'S ORDER AND THE TENTH CIRCUIT ERRED IN VACATING THE DISTRICT
COURT'S ORDERS ON THE STATED JURISDICTIONAL GROUND.  THE PROVISION IN
28 U.S.C. SEC 1404(A) THAT "A DISTRICT COURT MAY TRANSFER ANY CIVIL
ACTION" DOES NOT PRECLUDE TRANSFER BY DIRECT ORDER OF AN APPELLATE
COURT WHERE UNUSUAL CIRCUMSTANCES, SUCH AS EXISTED HERE, INDICATE THE
NECESSITY THEREOF. 

KOEHRING CO. V. HYDE CONSTRUCTION CO., INC., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

ON MARCH 11, 1964, PURSUANT TO A TRANSFER ORDER ISSUED BY THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT, THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF OKLAHOMA ENTERED AN ORDER TEMPORARILY
RESTRAINING RESPONDENTS FROM PROCEEDING WITH TRIAL OF A CASE IN THE
MISSISSIPPI STATE COURTS.  WHEN RESPONDENTS, IN DISREGARD OF THE
TEMPORARY RESTRAINING ORDER, PROCEEDED TO TRIAL IN MISSISSIPPI, THE
DISTRICT COURT ON MARCH 14 FOUND THEM IN CIVIL CONTEMPT.  (FN1)
UNDETERRED, RESPONDENTS PRESSED THE STATE COURT ACTION TO A CONCLUSION
AND OBTAINED A JUDGMENT AGAINST PETITIONER ON APRIL 8.  BUT THE
DISTRICT COURT, ON SEPTEMBER 1, ENJOINED RESPONDENTS FROM SEEKING TO
ENFORCE THE MISSISSIPPI JUDGMENT, REQUIRED THEM TO COMPENSATE
PETITIONER FOR REASONABLE EXPENSES IN CONNECTION WITH THE CONTEMPT
PROCEEDING, RESERVED DECISION AS TO WHETHER THEY MUST ALSO REIMBURSE
PETITIONER FOR EXPENSES RELATING TO THE MISSISSIPPI LITIGATION, AND
ORDERED THE CIVIL SUIT BETWEEN THE PARTIES RETRIED - THIS TIME IN
OKLAHOMA AND IN FEDERAL COURT. 

RESPONDENTS APPEALED FROM THIS DECREE TO THE COURT OF APPEALS FOR THE
TENTH CIRCUIT WHICH REVERSED, HOLDING THAT AT THE TIME THE DISTRICT
COURT HAD ENTERED THE ORIGINAL RESTRAINING ORDER IT WAS WITHOUT
JURISDICTION SINCE IT HAD NOT YET RECEIVED THE CASE FILE FROM THE
TRANSFEROR COURT.  WE ARE ASKED TO REVIEW THAT DETERMINATION.  WE GRANT
THE PETITION AND REVERSE. 

THE DISTRICT COURT HAD ASSUMED JURISDICTION OF THE CAUSE AND ENTERED
ITS RESTRAINING ORDER ON MARCH 11, FIVE DAYS BEFORE THE PAPERS IN THE
CASE WERE TRANSFERRED TO IT FROM MISSISSIPPI.  IT ACTED UPON THE BASIS
OF A CERTIFIED COPY OF AN ORDER ENTERED THE PREVIOUS DAY BY THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT.  THAT ORDER PROVIDED NOT ONLY THAT
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI HAD ERRED
IN FAILING TO COMPLY WITH AN EARLIER APPELLATE MANDATE TO TRANSFER THE
CASE, BUT ALSO THAT "PENDING THE ENTRY OF THE ORDER OF TRANSFER BY THE
DISTRICT JUDGE AND THE PHYSICAL FILING OF THE RECORD IN OKLAHOMA, THIS
ORDER SHALL CONSTITUTE A TRANSFER TO ENABLE THE PARTIES TO PRESENT THE
MATTER TO THE DISTRICT COURT OF OKLAHOMA." 

ALTHOUGH A FEDERAL APPELLATE COURT DOES NOT ORDINARILY ITSELF TRANSFER
A CASE TO ANOTHER DISTRICT, BUT REMANDS TO THE DISTRICT COURT FOR THAT
PURPOSE, (FN2) THE EXTRAORDINARY ACTION IN THIS CASE WAS TAKEN AS A
RESULT OF EXTRAORDINARY CIRCUMSTANCES.  THESE INCLUDED THE FACT THAT
THE FEDERAL DISTRICT COURT IN MISSISSIPPI HAD GRANTED A MOTION TO
DISMISS DESPITE INSTRUCTIONS FROM THE FIFTH CIRCUIT TO TRANSFER THE
CAUSE TO OKLAHOMA, (FN3) AND THE FURTHER FACT THAT TRIAL OF A
DUPLICATIVE ACTION IN THE MISSISSIPPI STATE COURTS BROUGHT BY
RESPONDENT HYDE CONSTRUCTION COMPANY WAS TO COMMENCE, AND DID IN FACT
COMMENCE, ON MARCH 11 - ONE DAY AFTER THE FIFTH CIRCUIT'S INSTANTER
TRANSFER AND THE VERY DAY ON WHICH THE FEDERAL DISTRICT COURT IN
OKLAHOMA ENTERED ITS ORDER. 

IN THE SPECIAL CIRCUMSTANCES OF THIS CASE, WE CONCLUDE THAT THE
DISTRICT COURT IN OKLAHOMA HAD ACQUIRED JURISDICTION ON MARCH 11 IN
ACCORDANCE WITH THE FIFTH CIRCUIT'S ORDER FOR INSTANTER TRANSFER AND
THAT THE TENTH CIRCUIT ERRED IN VACATING THE DISTRICT COURT'S ORDERS ON
THE STATED JURISDICTIONAL GROUND.  WE DO NOT READ 28 U.S.C. SEC
1404(A), PROVIDING THAT "A DISTRICT COURT MAY TRANSFER ANY CIVIL
ACTION," AS PRECLUDING AN APPELLATE COURT, WHERE UNUSUAL CIRCUMSTANCES
INDICATE THE NECESSITY THEREOF, FROM EFFECTING A TRANSFER BY DIRECT
ORDER.  (FN4) 

ACCORDINGLY, WE GRANT THE PETITION, REVERSE THE JUDGMENT, AND REMAND
TO THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION, RESERVING TO THE PARTIES THE
RIGHT TO APPLY TO THAT COURT TO HAVE THE CASE TRANSFERRED BACK TO THE
SOUTHERN DISTRICT OF MISSISSIPPI BECAUSE OF CHANGED CONDITIONS.  (FN5) 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

I THINK, AS SHOWN BY THE RECORD AND THE CAREFULLY PREPARED OPINIONS
OF THE ABLE JUDGES IN BOTH THE FIFTH AND THE TENTH CIRCUITS, THAT THE
CIRCUMSTANCES OF THIS CASE ARE BOTH TOO COMPLEX AND OBSCURE, AND THE
ISSUES WHICH CONCERN AMONG OTHER THINGS THE RELATIONSHIP BETWEEN STATE
AND FEDERAL COURTS AND THE TRANSFER OF CASES BETWEEN FEDERAL COURTS ARE
ALL TOO IMPORTANT TO BE TREATED IN THE CURSORY MANNER AS THEY ARE BY
THE COURT HERE.  THIS COURT'S REVERSAL OF THE JUDGMENT BELOW, WITHOUT
GIVING RESPONDENTS ANY OPPORTUNITY FOR ORAL ARGUMENT TO SUPPORT THE
THOROUGHLY CONSIDERED OPINION AND HOLDING OF THE TENTH CIRCUIT, SEEMS
MORE EXTRAORDINARY TO ME THAN WHAT THE COURT'S PER CURIAM OPINION
REFERS TO AS THE "EXTRAORDINARY CIRCUMSTANCES" IN THE COURTS BELOW.  I
DISSENT FROM THAT COURSE OF ACTION TAKEN BY THIS COURT. 

FN1  CRIMINAL CONTEMPT CHARGES WERE ALSO FILED, BUT ARE NOT INVOLVED
IN THE PRESENT PETITION. 

FN2  CF. PLATT V. MINNESOTA MINING CO., 376 U.S. 240 (UNDER RULE
21(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE). 

FN3  THE FIFTH CIRCUIT SUGGESTS THAT THE DISTRICT COURT'S ACTION WAS
THE RESULT OF MISUNDERSTANDING OVER WHETHER AN ANSWER HAD BEEN FILED
AND HENCE OF ITS DUTY TO GRANT A VOLUNTARY DISMISSAL UNDER RULE
41(A)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE, RATHER THAN THE
RESULT OF UNREADINESS TO RESPECT APPELLATE INSTRUCTIONS. 

FN4  DRABIK V. MURPHY, 246 F.2D 408 (C.A.2D CIR.), IS NOT AUTHORITY
FOR THE PROPOSITION THAT THE TRANSFEREE COURT FAILS TO ACQUIRE
JURISDICTION UNTIL PAPERS ARE RECEIVED FROM THE TRANSFEROR COURT.  ON
THE CONTRARY, DRABIK SUGGESTS THAT THE TRANSFEROR COURT MAY LOSE
JURISDICTION BEFORE THAT EVENT. 

FN5  THIS RESERVATION WAS MADE IN THE OPINION OF THE FIFTH CIRCUIT. 
..END :
























AFL-CIO V. NATIONAL LABOR RELATIONS BOARD 382 U.S. 366 


NO. 87.  DECIDED JANUARY 17, 1966.  - CERTIORARI GRANTED; JUDGMENTS
VACATED AND REMANDED. 


INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO V.
NATIONAL LABOR RELATIONS BOARD ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT IS GRANTED, THE JUDGMENTS ARE VACATED
AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN
LIGHT OF AUTOMOBILE WORKERS V. SCOFIELD, ANTE, P. 205. 
..END :













LLOYD V. BRICK 382 U.S. 366 


NO. 679.  DECIDED JANUARY 17, 1966.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


LLOYD V. BRICK ET AL. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ALTIERE V. UNITED STATES 382 U.S. 367 


NO. 100.  DECIDED JANUARY 17, 1966.  - CERTIORARI GRANTED; 343 F.2D 115,
VACATED AND REMANDED. 


ALTIERE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

IN THE LIGHT OF THE SUGGESTION OF THE SOLICITOR GENERAL AND AN
INDEPENDENT EXAMINATION OF THE RECORD, THE PETITION FOR A WRIT OF
CERTIORARI IS GRANTED, THE JUDGMENT IS VACATED, AND THE CASE IS
REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS FOR FURTHER PROCEEDINGS IN LIGHT OF SANSONE V. UNITED
STATES, 380 U.S. 343. 
..END :












SMITH V. AYRES 382 U.S. 367 


NO. 690.  DECIDED JANUARY 17, 1966.  - 174 SO. 2D 727, APPEAL DISMISSED
AND CERTIORARI DENIED. 


SMITH ET AL. V. AYRES, MAYOR, ET AL. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PENNSYLVANIA RAILROAD CO. V. UNITED STATES 382 U.S. 368 


NO. 556.  DECIDED JANUARY 17, 1966.  - AFFIRMED. 


PENNSYLVANIA RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















ATLANTIC GULF & PACIFIC CO. V. GEROSA 382 U.S. 368 


NO. 718.  DECIDED JANUARY 17, 1966.  - 16 N.Y.2D 1, 209 N.E.2D 86,
APPEAL DISMISSED. 


ATLANTIC GULF & PACIFIC CO. V. GEROSA, COMPTROLLER OF THE CITY OF NEW
YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















NATIONAL BUS TRAFFIC ASSOCIATION, INC. V. UNITED STATES 382 U.S. 369 


NO. 635.  DECIDED JANUARY 17, 1966.  - AFFIRMED. 


NATIONAL BUS TRAFFIC ASSOCIATION, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















GREAT COASTAL EXPRESS, INC. V. UNITED STATES 382 U.S. 369 


NO. 677.  DECIDED JANUARY 17, 1966.  - 243 F. SUPP. 943, AFFIRMED. 


GREAT COASTAL EXPRESS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















NORTHWESTERN PACIFIC RAILROAD CO. V. PUBLIC UTILITIES OF CALIFORNIA 382
U.S. 370 


NO. 676.  DECIDED JANUARY 17, 1966.  - APPEAL DISMISSED. 


NORTHWESTERN PACIFIC RAILROAD CO. V. PUBLIC UTILITIES COMMISSION OF
CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION OF THE CITY OF SAN RAFAEL, CALIFORNIA, ET AL. FOR LEAVE TO
BE NAMED PARTIES APPELLEE IS DENIED.  THE MOTION TO DISMISS IS GRANTED
AND THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION. 
..END :














SCHILDHAUS V. ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 382 U.S.
370 


NO. 732.  DECIDED JANUARY 17, 1966.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


SCHILDHAUS V. ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















CONVOY V. UNITED STATES 382 U.S. 371 


NO. 719.  DECIDED JANUARY 17, 1966.  - AFFIRMED. 


CONVOY CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















JOHN V. JOHN 382 U.S. 371 


NO. 699.  DECIDED JANUARY 17, 1966.  - 16 N.Y.2D 675, 210 N.E.2D 457,
APPEAL DISMISSED AND CERTIORARI DENIED. 


JOHN V. JOHN. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE MOTION TO DISMISS OR AFFIRM
IS GRANTED. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :













AMERICAN TRUCKING ASSOCIATIONS, INC. V. UNITED STATES 382 U.S. 372 


NO. 510.  DECIDED JANUARY 17, 1966.* - 242 F. SUPP. 890, AFFIRMED. 

*TOGETHER WITH NO. 511, PENNSYLVANIA RAILROAD CO. V. UNITED STATES ET
AL., ALSO ON APPEAL FROM THE SAME COURT. 


AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE HARLAN ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :












AMERICAN TRUCKING ASS'NS., INC., V. UNITED STATES 382 U.S. 373 


NO. 662.  DECIDED JANUARY 17, 1966.  - 242 F. SUPP. 597, AFFIRMED. 


AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTION OF THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL.
TO BE ADDED AS PARTIES APPELLEE IS GRANTED. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :















TEAMSTERS LOCAL NO. 372 V. DETROIT NEWSPAPER PUBLISHERS ASSOCIATION 382
U.S. 374 


NO. 663.  DECIDED JANUARY 17, 1966.  - CERTIORARI GRANTED; 346 F.2D 527,
JUDGMENTS VACATED AND REMANDED. 


NEWSPAPER DRIVERS & HANDLERS LOCAL UNION NO. 372, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, INC. V. DETROIT NEWSPAPER PUBLISHERS ASSOCIATION ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT IS GRANTED, THE JUDGMENTS ARE VACATED AND
THE CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS THAT THE CASE BE
REMANDED TO THE NATIONAL LABOR RELATIONS BOARD FOR FURTHER
CONSIDERATION IN LIGHT OF AMERICAN SHIP BUILDING CO. V. LABOR BOARD,
380 U.S. 300. 
..END :









UNITED STATES V. SPEERS 382 U.S. 266 


NO. 17.  ARGUED OCTOBER 20, 1965.  - DECIDED DECEMBER 13, 1965.  - 335
F.2D 311, AFFIRMED. 


FEDERAL TAXES WERE ASSESSED AGAINST A COMPANY BUT DESPITE DEMAND WERE
NOT PAID.  NO NOTICE WAS FILED OF THE LIEN WHICH ENSUED UNDER SEC. 6321
OF THE INTERNAL REVENUE CODE OF 1954.  THEREAFTER THE COMPANY FILED A
PETITION IN BANKRUPTCY.  THE TRUSTEE TREATED THE GOVERNMENT AS AN
UNSECURED CLAIMANT WHOSE LIEN WAS INVALID AS TO HIM, BASING HIS
POSITION ON SEC. 70C OF THE BANKRUPTCY ACT AND SEC. 6323 OF THE
INTERNAL REVENUE CODE.  SECTION 70C VESTS A TRUSTEE AS OF THE
BANKRUPTCY DATE WITH ALL THE RIGHTS OF "A CREDITOR THEN HOLDING A LIEN"
ON A BANKRUPT'S ASSETS BY "LEGAL  ...  PROCEEDINGS"; SEC. 6323 PERMITS
A "JUDGMENT CREDITOR" TO PREVAIL OVER AN UNRECORDED FEDERAL TAX LIEN. 
THE TRUSTEE'S POSITION WAS UPHELD BY THE REFEREE, DISTRICT COURT, AND
COURT OF APPEALS.  HELD:  A BANKRUPTCY TRUSTEE HAS THE STATUS OF A
STATUTORY "JUDGMENT CREDITOR" AND AS SUCH PREVAILS OVER AN UNRECORDED
FEDERAL TAX LIEN.  PP. 269-278. 

(A)  THE LANGUAGE IN UNITED STATES V. GILBERT ASSOCIATES, 345 U.S.
361, THAT THE TERM "JUDGMENT CREDITOR" IN THE PREDECESSOR OF SEC. 6323
REFERRED TO A HOLDER OF A JUDGMENT OF A COURT OF RECORD, MUST BE READ
IN CONTEXT AND DOES NOT GOVERN THE RIGHTS CONFERRED BY CONGRESS UPON A
TRUSTEE IN BANKRUPTCY.  PP. 269-271. 

(B)  THE LANGUAGE AND LEGISLATIVE HISTORY OF SEC. 70C AND SEC. 6323
REFLECT A CONGRESSIONAL PURPOSE TO CONFER ALL THE RIGHTS OF A JUDGMENT
CREDITOR UPON THE TRUSTEE IN BANKRUPTCY, INCLUDING THE RIGHT TO AVOID
AN UNRECORDED FEDERAL TAX LIEN.  PP. 271-275. 

(C)  THAT FAILURE TO ACCORD THE GOVERNMENT PRIORITY FOR ITS
UNRECORDED LIEN MAY BENEFIT OTHER CLAIMANTS IN A BANKRUPTCY PROCEEDING
BY IMPROVING THEIR RELATIVE POSITIONS AS CREDITORS (A RESULT WHICH THE
GOVERNMENT CAN AVOID BY PROMPTLY FILING NOTICE OF THE LIEN) IS A MATTER
OF CONGRESSIONAL POLICY.  PP. 275-277. 

(D)  THE PROVISION IN SEC. 67B OF THE BANKRUPTCY ACT THAT A STATUTORY
LIEN, INCLUDING A FEDERAL TAX LIEN, NOT PERFECTED UNTIL AFTER
BANKRUPTCY MAY NEVERTHELESS BE VALID AS AGAINST THE TRUSTEE DOES NOT
PRECLUDE CONSTRUING SEC. 6323 TO INCLUDE THE TRUSTEE, SINCE THE PURPOSE
OF SEC. 67B INSOFAR AS TAX CLAIMS ARE CONCERNED IS TO PROTECT THEM FROM
SEC. 60, WHICH ALLOWS THE TRUSTEE TO SET ASIDE PREFERENTIAL TRANSFERS
MADE WITHIN FOUR MONTHS OF BANKRUPTCY.  PP. 277-278. 

UNITED STATES V. SPEERS, TRUSTEE IN BANKRUPTCY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER A FEDERAL TAX LIEN,
UNRECORDED AS OF THE TIME OF BANKRUPTCY, IS VALID AS AGAINST THE
TRUSTEE IN BANKRUPTCY. 

ON JUNE 3, 1960, A DISTRICT DIRECTOR OF INTERNAL REVENUE ASSESSED
MORE THAN $14,000 IN WITHHOLDING TAXES AND INTEREST AGAINST THE KURTZ
ROOFING COMPANY.  DEMAND FOR PAYMENT WAS MADE, AND THE TAXPAYER REFUSED
TO PAY.  THIS GAVE RISE TO A FEDERAL TAX LIEN.  (FN1)  NOTICE OF THE
LIEN WAS NOT FILED EITHER IN THE OFFICE OF THE RECORDER OF ERIE COUNTY,
OHIO, WHERE KURTZ HAD ITS PRINCIPAL PLACE OF BUSINESS, OR IN THE UNITED
STATES DISTRICT COURT, AT LEAST NOT BEFORE FEBRUARY OF 1961.  (FN2)  ON
JUNE 20, 1960, KURTZ FILED A PETITION IN BANKRUPTCY.  IN THE ENSUING
PROCEEDINGS THE TRUSTEE TOOK THE POSITION THAT THE FEDERAL TAX LIEN WAS
INVALID AS TO HIM.  HE RELIED UPON SEC. 70C OF THE BANKRUPTCY ACT, 11
U.S.C. SEC. 110(C) (1964 ED.), WHICH, HE ASSERTED, VESTED IN HIM THE
RIGHTS OF A "JUDGMENT CREDITOR," AND UPON 26 U.S.C. SEC. 6323 (1964
ED.), WHICH ENTITLES A "JUDGMENT CREDITOR" TO PREVAIL OVER AN
UNRECORDED FEDERAL TAX LIEN.  SECTION 70C PROVIDES IN PART: 

"THE TRUSTEE, AS TO ALL PROPERTY, WHETHER OR NOT COMING INTO
POSSESSION OR CONTROL OF THE COURT, UPON WHICH A CREDITOR OF THE
BANKRUPT COULD HAVE OBTAINED A LIEN BY LEGAL OR EQUITABLE PROCEEDINGS
AT THE DATE OF BANKRUPTCY, SHALL BE DEEMED VESTED AS OF SUCH DATE WITH
ALL THE RIGHTS, REMEDIES, AND POWERS OF A CREDITOR THEN HOLDING A LIEN
THEREON BY SUCH PROCEEDINGS, WHETHER OR NOT SUCH A CREDITOR ACTUALLY
EXISTS." 


"THE LIEN IMPOSED BY SECTION 6321 SHALL NOT BE VALID AS AGAINST ANY
MORTGAGEE, PLEDGEE, PURCHASER, OR JUDGMENT CREDITOR UNTIL NOTICE
THEREOF HAS BEEN FILED BY THE SECRETARY OR HIS DELEGATE  ...  ." 

THE TRUSTEE'S POSITION, IN SHORT, WAS THAT HIS STATUTORY LIEN
ATTACHED TO ALL PROPERTY OF THE BANKRUPT AS OF THE DATE OF FILING OF
THE PETITION; THAT HE WAS A STATUTORY "JUDGMENT CREDITOR"; AND THAT,
UNDER SEC. 6323, THE UNRECORDED TAX LIEN OF THE UNITED STATES WAS NOT
VALID AGAINST HIM.  THIS POSITION, IF SUSTAINED, WOULD REDUCE THE
GOVERNMENT'S CLAIM FOR UNPAID TAXES TO THE STATUS OF AN UNSECURED
CLAIM, SHARING FOURTH-CLASS PRIORITY WITH UNSECURED STATE AND LOCAL TAX
CLAIMS UNDER SEC. 64A(4) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC.
104(A)(4) (1964 ED.), AND RANKING BEHIND ADMINISTRATIVE EXPENSES,
CERTAIN WAGE CLAIMS, AND SPECIFIED CREDITORS' EXPENSES.  (FN3)  THE
RESULT IN THE PRESENT CASE IS THAT INSTEAD OF RECOVERING THE FULL
AMOUNT OWING TO IT, THE UNITED STATES WOULD RECEIVE ONLY 53.48%. 

THE TRUSTEE'S POSITION WAS AFFIRMED BY THE REFEREE, THE DISTRICT
COURT, AND THE COURT OF APPEALS FOR THE SIXTH CIRCUIT.  335 F.2D 311. 
CERTIORARI WAS GRANTED, 379 U.S. 958, TO RESOLVE THE CONCEDED CONFLICT
BETWEEN DECISIONS OF COURTS OF APPEALS FOR THE SECOND, THIRD, AND NINTH
CIRCUITS (FN4) AND THE DECISION BELOW.  WE AFFIRM. 

DESPITE THE LANGUAGE OF THE APPLICABLE STATUTORY PROVISIONS, SEC. 70C
AND SEC. 6323, MOST OF THE COURTS OF APPEALS PASSING ON THE QUESTION
HAVE SUSTAINED THE VALIDITY OF AN UNRECORDED FEDERAL TAX LIEN AS
AGAINST THE TRUSTEE IN BANKRUPTCY.  THEY HAVE ARRIVED AT THIS RESULT ON
THE AUTHORITY OF A STATEMENT IN UNITED STATES V. GILBERT ASSOCIATES,
INC., 345 U.S. 361, 364, THAT THE PHRASE "JUDGMENT CREDITOR" IN SEC.
3672, THE PREDECESSOR OF SEC. 6323, WAS USED BY CONGRESS "IN THE USUAL,
CONVENTIONAL SENSE OF A JUDGMENT OF A COURT OF RECORD  ...  ." 

IT IS CLEAR, HOWEVER, THAT THIS CHARACTERIZATION WAS NOT INTENDED TO
EXCLUDE A TRUSTEE IN BANKRUPTCY FROM THE SCOPE OF THE PHRASE "JUDGMENT
CREDITOR."  THE ISSUE BEFORE THE COURT IN GILBERT WAS QUITE DIFFERENT. 

GILBERT INVOLVED NEITHER A BANKRUPTCY PROCEEDING NOR THE RIGHTS OF A
TRUSTEE IN BANKRUPTCY.  GILBERT AROSE OUT OF A STATE INSOLVENCY
PROCEEDING.  THE ISSUE WAS WHETHER AN UNRECORDED FEDERAL TAX LIEN WAS
VALID AS AGAINST A MUNICIPAL TAX ASSESSMENT WHICH HAD NEITHER BEEN
REDUCED TO JUDGMENT NOR ACCORDED "JUDGMENT CREDITOR" STATUS BY ANY
STATUTE.  THE ASSERTED SUPERIOR POSITION OF THE LOCAL TAX CLAIM WAS
BASED UPON THE FACT THAT THE NEW HAMPSHIRE COURT, IN THE GILBERT
INSOLVENCY PROCEEDING, HAD, FOR THE FIRST TIME, CONVENIENTLY
CHARACTERIZED THE LOCAL TAX CLAIM AS "IN THE NATURE OF A JUDGMENT,"
RELYING UPON THE PROCEDURES USED BY THE TAXING AUTHORITIES.  (FN5)
BECAUSE THE EFFECT OF FEDERAL TAX LIENS SHOULD NOT BE DETERMINED BY THE
DIVERSE RULES OF THE VARIOUS STATES, THE COURT HELD THAT THE
MUNICIPALITY WAS NOT A "JUDGMENT CREDITOR" FOR PURPOSES OF THE FEDERAL
STATUTE.  THE COURT SAID: 

"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 SEC. 3672 IN THE USUAL,
CONVENTIONAL SENSE OF A JUDGMENT OF A COURT OF RECORD, SINCE ALL STATES
HAVE SUCH COURTS.  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, 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."  345 U.S., AT
364.  (FN6) 

IN VIEW OF THE NATURE OF THE CLAIM FOR WHICH SUPERIORITY WAS ASSERTED
AND BECAUSE ITS DOMINANT THEME WAS THE NEED FOR UNIFORMITY IN
CONSTRUING THE MEANING OF SEC. 3672, GILBERT CANNOT BE CONSIDERED AS
GOVERNING THE ENTIRELY DIFFERENT SITUATION WITH RESPECT TO THE RIGHTS
CONFERRED BY CONGRESS UPON A TRUSTEE IN BANKRUPTCY.  IN THE LATTER
CIRCUMSTANCE WE ARE CONFRONTED WITH A SPECIFIC CONGRESSIONAL ACT
DEFINING THE STATUS OF THE TRUSTEE.  WE HAVE NO PROBLEM OF EVALUATING
WIDELY DIFFERING STATE LAWS.  WE HAVE NO POSSIBILITY OF UNEQUAL
APPLICATION OF THE FEDERAL TAX LAWS, DEPENDING UPON VARIANCES IN THE
TERMS AND PHRASEOLOGY OF DIFFERENT STATE AND LOCAL TAX ASSESSMENT
STATUTES AND JUDICIAL RULINGS THEREON.  HERE WE ARE FACED WITH A
UNIFORM FEDERAL SCHEME - THE RIGHTS OF THE TRUSTEE IN BANKRUPTCY IN
LIGHT OF AN UNEQUIVOCAL STATEMENT BY CONGRESS THAT HE SHALL HAVE "ALL"
THE RIGHTS OF A JUDICIAL LIEN CREDITOR WITH RESPECT TO THE BANKRUPT'S
PROPERTY. 

THE LEGISLATIVE HISTORY LENDS SUPPORT TO THE CONCLUSION DRAWN FROM
THE STATUTORY LANGUAGE THAT THE PURPOSE OF CONGRESS WAS TO INVALIDATE
AN UNRECORDED FEDERAL TAX LIEN AS AGAINST THE TRUSTEE IN BANKRUPTCY. 
IT WAS IN 1910 THAT CONGRESS ENACTED THE PREDECESSOR OF SEC. 70C,
VESTING THE TRUSTEE "WITH ALL THE RIGHTS, REMEDIES, AND POWERS OF A
JUDGMENT CREDITOR."  (FN7)  THREE YEARS LATER, IN 1913, CONGRESS
ENACTED THE PREDECESSOR OF SEC. 6323, PROVIDING THAT AN UNRECORDED
FEDERAL TAX LIEN WAS INVALID AS AGAINST A "JUDGMENT CREDITOR."  (FN8)
THESE TWO STATUTES, WITH THEIR CORRESPONDING REFERENCES TO "JUDGMENT
CREDITOR," CO-EXISTED FOR NEARLY 40 YEARS.  DURING THAT PERIOD, AND
PRIOR TO OUR DECISION IN GILBERT IN 1953, THE ONLY COURT OF APPEALS
SQUARELY TO PASS UPON THE QUESTION DECIDED THAT THE TRUSTEE WAS A
"JUDGMENT CREDITOR" FOR PURPOSES OF AVOIDING AN UNRECORDED FEDERAL TAX
LIEN.  UNITED STATES V. SANDS, 174 F.2D 384, 385 (C.A.2D CIR.),
REJECTING CONTRARY DICTUM IN IN RE TAYLORCRAFT AVIATION CORP., 168 F.2D
808, 810 (C.A. 6TH CIR.). 

IN AMENDING THE BANKRUPTCY ACT IN 1950, CONGRESS DELETED FROM SEC.
70C THE PHRASE "JUDGMENT CREDITOR," PROVIDING INSTEAD THAT WHETHER OR
NOT THE BANKRUPT'S PROPERTY WAS IN POSSESSION OR CONTROL OF THE COURT,
THE TRUSTEE WAS TO HAVE "ALL THE RIGHTS, REMEDIES, AND POWERS" OF A
CREDITOR HOLDING A JUDICIAL LIEN.  (FN9)  ELSEWHERE IN THE SAME
LEGISLATION IT WAS RECOGNIZED THAT THE CATEGORY OF THOSE HOLDING
JUDICIAL LIENS INCLUDES JUDGMENT CREDITORS, (FN10) AND A JUDICIAL LIEN
HOLDER GENERALLY HAS "GREATER RIGHTS THAN A JUDGMENT CREDITOR."  (FN11)
IT IS CLEAR, THEREFORE, THAT, WITH RESPECT TO THE PRESENT PROBLEM, IT
WAS NOT THE PURPOSE OF THE 1950 AMENDMENTS TO REDUCE THE POWERS OF THE
TRUSTEE.  AS THE HOUSE REPORT ACCOMPANYING THE LEGISLATION NOTED, THE
REVISION OF SEC. 70C "HAS BEEN PLACED IN THE BILL FOR THE PROTECTION OF
TRUSTEES IN BANKRUPTCY  ...  ALSO TO SIMPLIFY, AND TO SOME EXTENT
EXPAND, THE GENERAL EXPRESSION OF THE RIGHTS OF TRUSTEES IN
BANKRUPTCY."  (FN12) 

IN 1954 CONGRESS DEALT EXPLICITLY WITH THE QUESTION WHETHER THE
TRUSTEE OUGHT TO PREVAIL AGAINST UNRECORDED FEDERAL TAX LIENS.  AN
UNSUCCESSFUL EFFORT WAS MADE, REFLECTED IN THE HOUSE VERSION OF THE
PROPOSED SEC. 6323, EXPRESSLY TO EXCLUDE "ARTIFICIAL" JUDGMENT
CREDITORS LIKE THE TRUSTEE IN BANKRUPTCY.  (FN13)  AT CONFERENCE, THE
HOUSE CONFEREES ACCEDED TO THE VIEWS OF THE SENATE, WHICH DEEMED IT
"ADVISABLE TO CONTINUE TO RELY UPON JUDICIAL INTERPRETATION OF EXISTING
LAW INSTEAD OF ATTEMPTING TO PRESCRIBE SPECIFIC STATUTORY RULES." 
(FN14)  THE GOVERNMENT SUGGESTS THAT THE "EXISTING LAW" SOUGHT TO BE
PRESERVED WAS THIS COURT'S DECISION IN GILBERT.  BUT AS OF THE DATE OF
THE 1954 AMENDMENTS, GILBERT HAD NOT YET BEEN APPLIED BY ANY COURT TO
DISPLACE THE RIGHTS OF THE TRUSTEE IN BANKRUPTCY AS AGAINST AN
UNRECORDED FEDERAL TAX LIEN.  SO FAR AS THAT ISSUE IS CONCERNED, IT IS
MORE LIKELY THAT REFERENCE TO "EXISTING LAW" WAS TO THE SPECIFIC AND
THEN UNCHALLENGED RULE ANNOUNCED BY THE SECOND CIRCUIT IN UNITED STATES
V. SANDS, SUPRA, AND BY OTHER COURTS IN OTHER CASES HOLDING THE TRUSTEE
TO HAVE THE RIGHTS OF A JUDGMENT CREDITOR.  (FN15)  AS WE HAVE ALREADY
NOTED, GILBERT IS NOT INCONSISTENT WITH THE RULE ANNOUNCED IN SANDS. 

IN RECENT YEARS, AND SINCE THE VIEW BEGAN TO SPREAD THAT GILBERT
COMPELLED EXCLUSION OF THE TRUSTEE FROM THE BENEFITS OF SEC. 6323,
LEGISLATION HAS BEEN INTRODUCED EXPRESSLY TO REITERATE THE TRUSTEE'S
POWER TO UPSET UNRECORDED FEDERAL TAX LIENS.  (FN16)  SUCH LEGISLATION
WAS PROPOSED NOT TO ALTER THE STATUTORY SCHEME, BUT TO REMOVE WHAT WAS
THOUGHT TO BE AN ERRONEOUS GLOSS PLACED UPON IT BY THE COURTS.  THUS,
BOTH SENATE AND HOUSE COMMITTEE REPORTS ACCOMPANYING A RECENT BILL,
H.R. 394, 88TH CONG., RELFECT THE BELIEF THAT THOSE DECISIONS UPON
WHICH THE GOVERNMENT NOW RELIES "WOULD APPEAR TO BE CONTRARY TO THE
LEGISLATIVE PURPOSE WHICH GAVE THE TRUSTEE ALL THE RIGHTS OF AN IDEAL
JUDICIAL LIEN CREDITOR."  (FN17) 

IN LIGHT OF THESE LEGISLATIVE MATERIALS - THE ADOPTION OF THE PHRASE
"JUDGMENT CREDITOR" IN BOTH STATUTES, THE LEGISLATIVE BROADENING OF
SEC. 70C IN 1950, AND THE EXPRESSIONS OF CONGRESSIONAL DISCONTENT WITH
RECENT DECISIONS EXCLUDING THE TRUSTEE FROM SEC. 6323 - WE ARE
PERSUADED THAT, READ TOGETHER, SEC. 6323 AND SEC. 70C ENTITLE THE
TRUSTEE TO PREVAIL OVER UNRECORDED FEDERAL TAX LIENS. 

THE GOVERNMENT SEEKS TO WARD OFF THIS RESULT WITH THE ARGUMENT THAT
SO TO READ THE STATUTES IS TO CONFER UPON CERTAIN CLASSES OF CREDITORS
"WINDFALLS" UNWARRANTED BY THE EQUITIES OF THEIR SITUATION.   THE
QUESTION MAY, HOWEVER, BE STATED LESS INVIDIOUSLY THAN THE ARGUMENT
INDICATES:  IT IS WHETHER THE GOVERNMENT, UNLIKE OTHER CREDITORS, AND
CONTRARY TO THE GENERAL POLICY AGAINST SECRET LIENS, SHOULD BE GIVEN
ADVANTAGE OF A LIEN WHICH IT HAS NOT RECORDED AS OF THE DATE OF
BANKRUPTCY.  (FN18) IT IS TRUE THAT THE CONSEQUENCE OF DEPRIVING THE
UNITED STATES OF CLAIMED PRIORITY FOR ITS SECRET LIEN IS TO IMPROVE THE
RELATIVE POSITION OF CREDITORS - IF THERE ARE ANY NOT ALREADY PROTECTED
BY SEC. 6323 - WHOSE SECURITY WAS OBTAINED SUBSEQUENT TO THE
GOVERNMENT'S LIEN AND WHO, ONCE THE FEDERAL LIEN IS INVALIDATED, HAVE A
PRIOR CLAIM TO THE SECURED ASSETS.  AND OUR DECISION WILL ENHANCE THE
POSSIBILITY THAT THERE WILL BE SOMETHING IN THE BANKRUPT'S ESTATE FOR
THOSE CLAIMANTS WHOSE PRIORITIES ARE HIGHER THAN THAT AFFORDED
UNSECURED TAX CLAIMS, (FN19) AS WELL AS FOR STATE AND LOCAL TAX CLAIMS
WHICH SHARE WITH THE FEDERAL GOVERNMENT THE PRIORITY IN SEC. 64A(4), 11
U.S.C. SEC. 104(A)(4).  WHETHER THIS REUSLT IS INADVISABLE NEED NOT
DETAIN US, (FN20) FOR THE QUESTION IS ONE OF POLICY WHICH IN OUR VIEW
HAS BEEN DECIDED BY CONGRESS IN FAVOR OF THE TRUSTEE.  IN ANY EVENT, IT
IS POSSIBLE FOR THE GOVERNMENT IN CASES WHICH IT DEEMS APPROPRIATE, TO
AVOID A RESULT WHICH IT REGARDS WITH UNHAPPINESS BY PROMPTLY FILING
NOTICE OF ITS LIEN.  (FN21)  SHOULD EXPERIENCE INDICATE THAT INCLUSION
OF THE TRUSTEE WITHIN SEC. 6323 IS INADVISABLE, THE FACT WILL NOT BE
LOST UPON CONGRESS. 

THE GOVERNMENT ADVANCES ONE LAST AND QUITE NOVEL (FN22) ARGUMENT
PREDICATED UPON SEC. 67B OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 107(B)
(1964 ED.), WHICH PROVIDES: 

"THE PROVISIONS OF SECTION 60 OF THIS ACT TO THE CONTRARY
NOTWITHSTANDING, STATUTORY LIENS INCLUDING THOSE FOR TAXES AND DEBTS
OWING TO THE UNITED STATES OR TO ANY STATE OR ANY SUBDIVISION THEREOF
...  MAY BE VALID AGAINST THE TRUSTEE, EVEN THOUGH ARISING OR PERFECTED
WHILE THE DEBTOR IS INSOLVENT AND WITHIN FOUR MONTHS PRIOR TO THE
FILING OF THE PETITION ...  .  WHERE BY SUCH LAWS SUCH LIENS ARE
REQUIRED TO BE PERFECTED AND ARISE BUT ARE NOT PERFECTED BEFORE
BANKRUPTCY, THEY MAY NEVERTHELESS BE VALID, IF PERFECTED WITHIN THE
TIME PERMITTED BY AND IN ACCORDANCE WITH THE REQUIREMENTS OF SUCH LAWS
...  ."    THE CONTENTION IS THAT THE LOWER COURT'S READING OF SEC. 70C
AND SEC. 6323 CANNOT BE CORRECT, FOR IT PRECLUDES THE POSSIBILITY WHICH
APPEARS TO BE CONTEMPLATED BY SEC. 67B - THAT A FEDERAL TAX LIEN NOT
PERFECTED UNTIL AFTER BANKRUPTCY MAY NEVERTHELESS BE "VALID AGAINST THE
TRUSTEE."  WE FIND NO SUCH INCONSISTENCY.  THE PURPOSE OF SEC. 67B,
INSOFAR AS TAX CLAIMS ARE CONCERNED, IS TO PROTECT THEM FROM SEC. 60,
11 U.S.C. SEC. 96 (1964 ED.), WHICH PERMITS THE TRUSTEE TO AVOID
TRANSFERS MADE WITHIN FOUR MONTHS OF BANKRUPTCY.  THUS SEC. 67B PERMITS
AN OTHERWISE INCHOATE FEDERAL TAX CLAIM TO BE "PERFECTED" BY ASSESSMENT
AND DEMAND WITHIN THE FOUR MONTHS PRIOR TO BANKRUPTCY OR AFTERWARDS. 
(FN23)  IT DOES NOT NULLIFY OR PURPORT TO NULLIFY THE CONSEQUENCES
WHICH FLOW FROM THE GOVERNMENT'S FAILURE TO FILE ITS PERFECTED LIEN
PRIOR TO THE DATE WHEN THE TRUSTEE'S RIGHTS AS A STATUTORY JUDGMENT
CREDITOR ATTACH - NAMELY, ON FILING OF THE PETITION IN BANKRUPTCY. 
(FN24)  THERE IS NO INDICATION IN THE LANGUAGE OF SEC. 67B, IN THE
LEGISLATIVE HISTORY, OR IN DECISIONS OF ANY COURT, THAT THE SUBSECTION
WAS INTENDED TO AFFECT THE CONSTRUCTION OR APPLICATION OF SEC. 6323. 
IN ANY EVENT, WE SHOULD HESITATE TO READ SEC. 67B AS RELEVANT TO THE
RELATIONSHIP BETWEEN SEC. 70C AND SEC. 6323, FOR CONGRESS IN THE VERY
LEGISLATION PROPOSED TO CLARIFY THE TRUSTEE'S RIGHTS UNDER SEC. 6323
DID CONSIDER SEC. 67B, AND EVIDENCED NO AWARENESS OF INTERRELATIONSHIP
OR OF INCONSISTENCY.  (FN25) AFFIRMED. 

FN1  26 U.S.C. SEC. 6321 (1964 ED.)  PROVIDES:  "IF ANY PERSON LIABLE
TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE SAME AFTER DEMAND, THE
AMOUNT (INCLUDING ANY INTEREST, ADDITIONAL AMOUNT, ADDITION TO TAX, OR
ASSESSABLE PENALTY, TOGETHER WITH ANY COSTS THAT MAY ACCRUE IN ADDITION
THERETO) SHALL BE A LIEN IN FAVOR OF THE UNITED STATES UPON ALL
PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR PERSONAL, BELONGING TO
SUCH PERSON." 

26 U.S.C. SEC. 6322 (1964 ED.)  PROVIDES:  "UNLESS ANOTHER DATE IS
SPECIFICALLY FIXED BY LAW, THE LIEN IMPOSED BY SECTION 6321 SHALL ARISE
AT THE TIME THE ASSESSMENT IS MADE AND SHALL CONTINUE UNTIL THE
LIABILITY FOR THE AMOUNT SO ASSESSED IS SATISFIED OR BECOMES
UNENFORCEABLE BY REASON OF LAPSE OF TIME." 

FN2  IN ITS BRIEF IN THE COURT OF APPEALS THE GOVERNMENT FOR THE
FIRST TIME STATED THAT NOTICE OF THE LIEN WAS IN FACT FILED WITH THE
RECORDER ON FEBRUARY 9, 1961.  THE STATEMENT IN THE REFEREE'S
CERTIFICATE THAT NOTICE OF THE LIEN WAS NEVER FILED WAS NOT
CONTROVERTED IN THE DISTRICT COURT AND, AS RESPONDENT CONTENDS, THERE
IS NO PROOF OF THE FEBRUARY FILING IN THE RECORD. 

FN3  SEE SECS. 64A(1)-(3), 11 U.S.C. SECS. 104(A)(1)-(3) (1964 ED.). 
SECURED CREDITORS, INCLUDING THOSE WHOSE SECURITY WAS OBTAINED
SUBSEQUENT TO CREATION OF THE GOVERNMENT'S LIEN, WOULD HAVE RECOURSE TO
THEIR SECURITY BEFORE ANY OF THE BANKRUPTCY ACT PRIORITIES COME INTO
PLAY.  GOGGIN V. CALIFORNIA LABOR DIV., 336 U.S. 118; CITY OF RICHMOND
V. BIRD, 249 U.S. 174.  ADMINISTRATIVE EXPENSES AND WAGE CLAIMS PRECEDE
ALL OTHER STATUTORY LIENS ON PERSONAL PROPERTY NOT ACCOMPANIED BY
POSSESSION IF NOT ENFORCED BY SALE PRIOR TO BANKRUPTCY.  SEC. 67C, 11
U.S.C. SEC. 107(C) (1964 ED.); GOGGIN, SUPRA, 126-130. 

FN4  SEE BRUST V. STURR, 237 F.2D 135 (C.A.2D CIR.); IN RE FIDELITY
TUBE CORP., 278 F.2D 776 (C.A. 3D CIR.)(KALODNER AND HASTIE, JJ.,
DISSENTING), CERT. DENIED SUB NOM. BOROUGH OF EAST NEWARK V. UNITED
STATES, 364 U.S. 828; SIMONSON V. GRANQUIST, 287 F.2D 489 (C.A. 9TH
CIR.)(HAMLEY, J., EXPRESSING CONTRARY VIEWS), REV'D ON OTHER GROUNDS,
369 U.S. 38.  SEE ALSO UNITED STATES V. ENGLAND, 226 F.2D 205 (C.A. 9TH
CIR.); IN RE TAYLORCRAFT AVIATION CORP., 168 F.2D 808, 810 (C.A. 6TH
CIR.)(DICTUM). 

FN5  345 U.S., AT 363, QUOTING FROM PETITION OF GILBERT ASSOCIATES,
INC., 97 N.H. 411, 414, 90 A.2D 499, 502. 

FN6  THE GOVERNMENT'S BRIEF ALSO EMPHASIZED THIS CONCERN FOR
UNIFORMITY IN ADMINISTRATION OF THE FEDERAL TAX LAWS.  SEE BRIEF FOR
PETITIONER IN GILBERT, NO. 440, 1952 TERM, PP. 22-24, WHERE THE
GOVERNMENT ARGUED:  "CONGRESS DID NOT INTEND TO SUBORDINATE FEDERAL TAX
LIENS TO LOCAL TAX LIENS MERELY BECAUSE BY STATE STATUTE OR STATE COURT
DECISIONS THE LOCAL TAX ASSESSMENTS ARE FOR LOCAL PURPOSES DENOMINATED
'JUDGMENTS'  ...  .  MOREOVER, IN HOLDING THAT UNDER OUR 'DECISIONS'
AND IN 'THIS JURISDICTION' THE TOWN'S TAX ASSESSMENTS ARE 'JUDGMENTS,'
THE COURT BELOW FAILED TO GIVE SUFFICIENT HEED TO THE REPEATED
DECLARATIONS OF THIS COURT THAT THE FEDERAL REVENUE LAWS SHOULD BE
INTERPRETED 'SO AS TO GIVE A UNIFORM APPLICATION TO A NATIONWIDE SCHEME
OF TAXATION,' AND HENCE THEIR PROVISIONS ARE NOT TO BE DEEMED SUBJECT
TO STATE LAW UNLESS THE LANGUAGE OF THE SECTION INVOLVED, EXPRESSLY OR
BY NECESSARY IMPLICATION, SO REQUIRES." 

FN7 THE ACT OF JUNE 25, 1910, C. 412, 36 STAT. 840, SEC. 8, PROVIDED
IN PART:  "SUCH TRUSTEES, AS TO ALL PROPERTY IN THE CUSTODY OR COMING
INTO THE CUSTODY OF THE BANKRUPTCY COURT, SHALL BE DEEMED VESTED WITH
ALL THE RIGHTS, REMEDIES, AND POWERS OF A CREDITOR HOLDING A LIEN BY
LEGAL OR EQUITABLE PROCEEDINGS THEREON; AND ALSO, AS TO ALL PROPERTY
NOT IN THE CUSTODY OF THE BANKRUPTCY COURT, SHALL BE DEEMED VESTED WITH
ALL THE RIGHTS, REMEDIES, AND POWERS OF A JUDGMENT CREDITOR HOLDING AN
EXECUTION DULY RETURNED UNSATISFIED." 

FN8  ACT OF MARCH 4, 1913, C. 166, 37 STAT. 1016. 

FN9  ACT OF MARCH 18, 1950, C. 70, SEC. 2, 64 STAT. 26, NOW 11 U.S.C.
SEC. 110(C) (1964 ED.).  PRIOR TO THE AMENDMENT, SEC. 70C CHARACTERIZED
THE TRUSTEE AS A LIEN HOLDER AS TO PROPERTY IN THE COURT'S POSSESSION
OR CONTROL AND AS A "JUDGMENT CREDITOR" AS TO PROPERTY NOT SO REDUCED
TO POSSESSION.  SEE N. 7, SUPRA; LEWIS V. MANUFACTURERS NATIONAL BANK,
364 U.S. 603, 605-606. 

FN10  ACT OF MARCH 18, 1950, C. 70, SEC. 1, 64 STAT. 25, NOW 11
U.S.C. SEC. 96(A)(4) (1964 ED.).  SEE 4 COLLIER, BANKRUPTCY PARA.
70.49, N. 3, AT 1415 (1964 ED.). 

FN11  SEE, E.G., H.R. REP. NO. 745, 86TH CONG., 1ST SESS., TO
ACCOMPANY H.R. 7242, P. 10: "AS A MATTER OF GENERAL LAW THE HOLDER OF A
LIEN BY LEGAL PROCEEDINGS HAS GREATER RIGHTS THAN A JUDGMENT CREDITOR
...  .  IT WOULD SEEM ANOMALOUS TO ALLOW JUDGMENT CREDITORS TO PREVAIL
OVER SECRET TAX LIENS AND TO DENY THAT RIGHT TO A JUDICIAL LIEN
HOLDER." 

FN12  H.R. REP. NO. 1293, 81ST CONG., 1ST SESS., TO ACCOMPANY S. 88,
P. 7.  THAT THIS WAS THE TENOR OF THE AMENDMENT IS GENERALLY CONCEDED. 
SEE, E.G., IN RE FIDELITY TUBE CORP., 278 F.2D 776, 781, 786-787 (BOTH
MAJORITY AND DISSENTING OPINIONS); 4 COLLIER, OP.  CIT. SUPRA, AT 1415;
SELIGSON, CREDITORS' RIGHTS, 32 N.Y.U.L. REV. 708, 710 (1957). 

FN13  THE PROPOSED LEGISLATION WAS TO MAKE CLEAR THAT "SUCH
PROTECTION IS NOT EXTENDED TO A JUDGMENT CREDITOR WHO DOES NOT HAVE A
VALID JUDGMENT OBTAINED IN A COURT OF RECORD AND OF COMPETENT
JURISDICTION" AND THAT "PARTICULAR PERSONS SHALL NOT BE TREATED AS
JUDGMENT CREDITORS BECAUSE STATE OR FEDERAL LAW ARTIFICIALLY PROVIDES
OR CONCEDES SUCH PERSONS RIGHTS OR PRIVILEGES OF JUDGMENT CREDITORS, OR
EVEN DESIGNATES THEM AS SUCH, WHEN THEY HAVE NOT ACTUALLY OBTAINED A
JUDGMENT IN THE CONVENTIONAL SENSE."  H.R. REP.  NO. 1337, 83D CONG.,
2D SESS., TO ACCOMPANY H.R. 8300, P. A407.  SEE TREAS. REG. ON
PROCEDURE AND ADMINISTRATION (1954 CODE) SEC. 301.6323-1 (26 CFR SEC.
301.6323-1), INCORPORATING THE MATERIAL REJECTED BY THE EIGHTY-THIRD
CONGRESS. 

FN14  S. REP. NO. 1622, 83D CONG., 2D SESS., TO ACCOMPANY H.R. 8300,
P. 575; H.R. CONF.  REP. NO. 2543, 83D CONG., 2D SESS., TO ACCOMPANY
H.R. 8300, P. 78. 

FN15  E.G., SAMPSELL V. STRAUB, 194 F.2D 228, 231 (C.A. 9TH CIR.),
CERT. DENIED, 343 U.S. 927; MC KAY V. TRUSCO FINANCE CO., 198 F.2D 431,
433 (C.A. 5TH CIR.); IN RE LUSTRON CORP., 184 F.2D 789 (C.A. 7TH CIR.),
CERT. DENIED SUB NOM. RECONSTRUCTION FINANCE CORP. V. LUSTRON CORP.,
340 U.S. 946. 

FN16  ON TWO OCCASIONS THE PROPOSED LEGISLATION WAS APPROVED BY THE
APPROPRIATE HOUSE AND SENATE COMMITTEES, AND ONE BILL  RECEIVED THE
ASSENT OF BOTH HOUSES.  SEE H.R. 7242, 86TH CONG., SEC. 6, VETOED BY
PRESIDENT ON SEPTEMBER 8, 1960, 106 CONG. REC. 19168; H.R. 394, 88TH
CONG., SEC. 6; H.R. 136, 89TH CONG., SEC. 6. 

FN17  H.R. REP. NO. 454, 88TH CONG., 1ST SESS., P. 10; S. REP. NO.
1133, 88TH CONG., 2D SESS., P. 11. 

FN18  IN ENACTING THE PREDECESSOR OF SEC. 6323 IN 1913, CONGRESS
SEEMS GENERALLY TO HAVE ANSWERED THIS QUESTION IN THE NEGATIVE - AND
AGAINST SECRET LIENS.  SEE H.R. REP.  NO. 1018, 62D CONG., 2D SESS.,
PP. 1-2. 

FN19  SEE SECS. 64A(1)-(3), 11 U.S.C. SECS. 104(A)(1)-(3), GIVING
PRIORITY TO CLAIMS FOR ADMINISTRATIVE EXPENSES, WAGES, AND CERTAIN
CREDITORS' EXPENSES.  THE CLAIMS OF GENERAL CREDITORS ARE, OF COURSE,
IN NO WAY AFFECTED BY OUR DECISION.  AND IN SOME CIRCUMSTANCES
ADMINISTRATIVE EXPENSE AND WAGE CLAIMANTS WOULD IN ANY CASE PREVAIL
OVER THE GOVERNMENT'S LIEN.  SEE N. 3, SUPRA. 

FN20  WE NOTE THAT FAILURE OF THE GOVERNMENT TO RECORD ITS LIEN MAY
WORK A HARDSHIP UPON PERSONS SUBSEQUENTLY EXTENDING CREDIT IN IGNORANCE
OF THE UNRECORDED LIEN, AND THAT NONDISCLOSURE MAY INDUCE OTHERS TO
INCUR ADMINISTRATIVE OR OTHER EXPENSES WHICH THEY WOULD NOT INCUR IF
THERE WERE NO HOPE OF REPAYMENT.  MOREOVER, STATE AND LOCAL GOVERNMENTS
MIGHT REDUCE THEIR CLAIMS TO JUDGMENT IF THEY KNEW OF THE EXISTENCE OF
A FEDERAL LIEN.  SEE MEMORANDUM OF CHAIRMAN, DRAFTING COMMITTEE OF
NATIONAL BANKRUPTCY CONFERENCE, CONTAINED IN S. REP. NO. 1133, 88TH
CONG., 2D SESS., TO ACCOMPANY H.R. 394, PP. 24-25. 

FN21  IN ITS LETTER TO SENATOR EASTLAND OPPOSING H.R. 394, DATED
SEPTEMBER 8, 1961, THE TREASURY ASSERTED THAT "THE SERVICE HAS, AS A
MATTER OF ADMINISTRATIVE PRACTICE, EXERCISED FORBEARANCE AS A CREDITOR
IN CASES WHEN THERE EXISTS A REASONABLE POSSIBILITY THAT THE BUSINESS
CAN REGAIN FINANCIAL STABILITY.  ENACTMENT OF THE PROPOSED AMENDMENTS
...  COULD WELL FORCE THE SERVICE TO CHANGE THIS PRACTICE, WHICH IT IS
BELIEVED HAS BEEN PROVED BY EXPERIENCE TO BE HIGHLY DESIRABLE."  S.
REP. NO. 1133, 88TH CONG., 2D SESS., P. 18.  THIS SAME ARGUMENT WAS
MADE TO AN EARLIER CONGRESS AND REJECTED.   SEE LETTER FROM TREASURY,
DATED AUG. 9, 1960, IN OPPOSITION TO H.R. 7242, CONTAINED IN S. REP.
NO. 1871, 86TH CONG., 2D SESS., P. 36. 

FN22  IN THE COURT OF APPEALS THE GOVERNMENT ADVANCED, AS AN
ALTERNATIVE BASIS FOR DISPOSITION OF THE CASE, THE CONTENTION THAT
PURSUANT TO SEC. 67B THE ALLEGED FILING OF NOTICE IN FEBRUARY OF 1961
RETROACTIVELY VALIDATED THE LIEN AS AGAINST THE TRUSTEE.  THE COURT
DECLINED TO REACH THE MERITS OF THIS CLAIM, NOTING THAT IT HAD NOT BEEN
PRESENTED EITHER TO THE REFEREE OR TO THE DISTRICT COURT AND THAT THERE
WAS NO PROOF OF RECORD WITH RESPECT TO THE ALLEGED FEBRUARY FILING. 
335 F.2D, AT 314. 

THE SEC. 67B ARGUMENT RAISED IN THIS COURT DIFFERS FROM THAT REJECTED
BELOW, FOR THAT SUBSECTION IS NOW CITED TO US AS AN AID IN CONSTRUING
THE RELATIONSHIP BETWEEN SEC. 70C AND SEC. 6323.  INSOFAR AS IT IS
RELEVANT TO THE PARTICULAR PROBLEM OF STATUTORY CONSTRUCTION PRESENTED
BY THIS CASE, WE REGARD THE SEC. 67B ARGUMENT AS PROPERLY BEFORE US,
FOR "WHERE THE MIND LABOURS TO DISCOVER THE DESIGN OF THE LEGISLATURE,
IT SEIZES EVERY THING FROM WHICH AID CAN BE DERIVED."  UNITED STATES V.
FISHER, 2 CRANCH 358, 386 (MARSHALL, C. J.).  SEE ALSO UNITED STATES V.
HUTCHESON, 312 U.S. 219; ESTATE OF SANFORD V. COMMISSIONER, 308 U.S.
39, 42-44; UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 429
(C.A.2D CIR.)(L.  HAND, J.). 

FN23  SEE SIMONSON V. GRANQUIST, 369 U.S. 38, 41; 4 COLLIER, OP. CIT.
SUPRA, PARA. 67.20, AT 183; CF. LEWIS V. MANUFACTURERS NATIONAL BANK,
SUPRA, AT 609. 

FN24  4 COLLIER, OP. CIT. SUPRA, PARA. 67.26, AT 283-286, AND PARA.
70.48, AT 1407. 

FN25  SEE LEGISLATIVE MATERIALS CITED AT NOTES 11, 16, AND 17,
SUPRA. 

MR. JUSTICE BLACK, DISSENTING. 

UNFILED TAX LIEN IS NOT "VALID AS AGAINST ANY MORTGAGEE, PLEDGEE,
PURCHASER, OR JUDGMENT CREDITOR  ...  ."  THE COURT HERE HOLDS THAT A
BANKRUPTCY TRUSTEE MUST BE TREATED AS IF HE WERE A "JUDGMENT CREDITOR"
THEREBY REDUCING GOVERNMENT TAX CLAIMS TO THE LEVEL OF UNSECURED
CREDITORS.  I AM UNABLE TO AGREE.  A BANKRUPTCY TRUSTEE CANNOT BE
TREATED AS A JUDGMENT CREDITOR EXCEPT BY GIVING THAT TERM AN ENTIRELY
ARTIFICIAL, FICTIONAL MEANING.  THE COURT JUSTIFIES THIS EXTRAORDINARY
TWIST OF MEANING BY REFERENCE TO SEC. 70C OF THE BANKRUPTCY ACT, 11
U.S.C.  SEC. 110(C) (1964 ED.).  THAT SECTION, SO FAR AS HERE
PERTINENT, PROVIDES: 

"C.    ...  THE TRUSTEE, AS TO ALL PROPERTY, WHETHER OR NOT COMING
INTO POSSESSION OR CONTROL OF THE COURT, UPON WHICH A CREDITOR OF THE
BANKRUPT COULD HAVE OBTAINED A LIEN BY LEGAL OR EQUITABLE PROCEEDINGS
AT THE DATE OF BANKRUPTCY, SHALL BE DEEMED VESTED AS OF SUCH DATE WITH
ALL THE RIGHTS, REMEDIES, AND POWERS OF A CREDITOR THEN HOLDING A LIEN
THEREON BY SUCH PROCEEDINGS, WHETHER OR NOT SUCH A CREDITOR ACTUALLY
EXISTS." 

THIS LANGUAGE GIVES NO INTIMATION OF A PURPOSE TO DESTROY A VALID TAX
LIEN SUCH AS THE GOVERNMENT HAD HERE WHEN BANKRUPTCY OCCURRED.  THE
PROPERTY THE BANKRUPT HAD BEFORE BANKRUPTCY WILL BE VESTED IN THE
TRUSTEE.  IT STRETCHES THIS LANGUAGE ENTIRELY TOO MUCH TO SAY IT WAS
INTENDED TO CHANGE THE LAW SO DRASTICALLY THAT THE MERE APPOINTMENT OF
A TRUSTEE COULD RENDER INVALID A GOVERNMENT TAX LIEN WHICH WAS
PERFECTLY VALID THE MOMENT BEFORE BANKRUPTCY.  NOR CAN THIS SECTION
FAIRLY BE READ AS AN ATTEMPT BY CONGRESS TO NULLIFY VALID GOVERNMENT
TAX LIENS BY PLACING THE CLAIMS OF ALL UNSECURED CREDITORS OF THE
BANKRUPT ON THE SAME LEVEL AS VALID TAX LIENS.  IN WRITING SEC. 70C
CONGRESS WAS AMENDING THE BANKRUPTCY LAW, NOT THE GOVERNMENT TAX LIEN
LAW THAT DATES BACK NEARLY 100 YEARS.  I STILL THINK, AS WE SAID IN
UNITED STATES V. GILBERT ASSOCIATES, 345 U.S. 361, 364, THAT IN
ENACTING THE PREDECESSOR OF SEC. 6323 CONGRESS USED THE WORDS "JUDGMENT
CREDITOR" IN "THE USUAL, CONVENTIONAL SENSE OF A JUDGMENT OF A COURT OF
RECORD  ...  ."  THE SECOND, THIRD, AND NINTH CIRCUITS HAVE SO
CONSTRUED THIS SECTION.  I THINK THEY WERE RIGHT.  THE COURT TODAY
GIVES FRAIL AND INADEQUATE SUPPORT, I THINK, FOR ITS JUDICIAL
DESTRUCTION OF THE GOVERNMENT'S CONGRESSIONALLY CREATED LIEN.    I
WOULD REVERSE THIS JUDGMENT. 
..END :









UTILITY COMM'N V. PENNSYLVANIA R. CO. 382 U.S. 281 


NO. 375.  DECIDED DECEMBER 13, 1965 - 240 F. SUPP. 233, VACATED AND
REMANDED. 


APPELLEE SUED IN A THREE-JUDGE DISTRICT COURT TO ENJOIN ENFORCEMENT OF
AN ORDER ISSUED BY APPELLANT STATE COMMISSION ON THE GROUND OF CONFLICT
WITH A FEDERAL STATUTE, WHICH APPELLANT CONTENDED WAS
UNCONSTITUTIONAL.  THE INJUNCTION WAS GRANTED.  HELD: 

1.  UNDER SWIFT & CO. V. WICKHAM, ANTE.  P. 111, A THREE-JUDGE
TRIBUNAL WAS NOT REQUIRED BY U.S.C. SEC. 2281 FOR STATE ORDER-FEDERAL
STATUTE CONFLICT. 

2.  NOR DOES THE DEFENSE OF UNCONSTITUTIONALITY OF THE FEDERAL
STATUTE REQUIRE A THREE-JUDGE COURT UNDER 28 U.S.C. SEC. 2282, WHICH
APPLIES ONLY WHERE AN INJUNCTION IS SOUGHT TO RESTRAIN THE ENFORCEMENT
OF AN ACT OF CONGRESS.  GARMENT WORKERS V. DONNELLY CO., 304 U.S. 243,
250. 

3.  SINCE THE DIRECT APPEAL TO THIS COURT, TAKEN PRIOR TO THE WICKHAM
DECISION, MUST BE DISMISSED FOR LACK OF JURISDICTION, THE JUDGMENT IS
VACATED AND REMANDED TO THE DISTRICT COURT TO ENTER A FRESH DECREE FROM
WHICH A TIMELY APPEAL MAY BE TAKEN TO THE COURT OF APPEALS. 

PENNSYLVANIA PUBLIC UTILITY COMMISSION V. PENNSYLVANIA RAILROAD CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

IN THE THREE-JUDGE DISTRICT COURT FROM WHICH THIS APPEAL COMES TO US,
THE PENNSYLVANIA RAILROAD COMPANY SUED TO ENJOIN THE ENFORCEMENT OF A
DULY PROMULGATED ORDER OF THE PENNSYLVANIA PUBLIC UTILITY COMMISSION ON
THE SOLE GROUND THAT THE ORDER CONFLICTED WITH A FEDERAL STATUTE.  THE
COMMISSION, AMONG OTHER DEFENSES, CONTENDED THAT THE FEDERAL STATUTE
WAS UNCONSTITUTIONAL, BUT THE DISTRICT COURT DECIDED THE CASE IN FAVOR
OF THE RAILROAD AND ISSUED AN APPROPRIATE INJUNCTION.  240 F. SUPP.
233. 

IT FOLLOWS FROM OUR RECENT DECISION IN SWIFT & CO. V. WICKHAM, ANTE,
P. 111, THAT THE INJUNCTION SOUGHT BY THE RAILROAD, BEING BASED ON
INCOMPATIBILITY BETWEEN THE STATE ORDER AND THE FEDERAL STATUTE, WAS
NOT GROUNDED IN THE "UNCONSTITUTIONALITY" OF A STATE MEASURE SO AS TO
REQUIRE A THREE-JUDGE TRIBUNAL UNDER 28 U.S.C. SEC. 2281 (1964 ED.). 
NOR IS SEC.  2282, REQUIRING SUCH A TRIBUNAL IN ORDER TO ENJOIN "ANY
ACT OF CONGRESS FOR REPUGNANCE TO THE CONSTITUTION," INVOKED BY THE
COMMISSION'S DEFENSE THAT THE FEDERAL STATUTE IS UNCONSTITUTIONAL; IT
IS SETTLED THAT THIS PROVISION "DOES NOT PROVIDE FOR A CASE WHERE THE
VALIDITY OF AN ACT OF CONGRESS IS MERELY DRAWN IN QUESTION, ALBEIT THAT
QUESTION BE DECIDED, BUT ONLY FOR A CASE WHERE THERE IS AN APPLICATION
FOR AN INTERLOCUTORY OR PERMANENT INJUNCTION TO RESTRAIN THE
ENFORCEMENT OF AN ACT OF CONGRESS."  GARMENT WORKERS V. DONNELLY CO.,
304 U.S. 243, 250. 

BECAUSE A THREE-JUDGE COURT WAS NOT REQUIRED TO ADJUDICATE THIS SUIT,
THIS COURT HAS NO JURISDICTION UNDER 28 U.S.C. SEC. 1253 (1964 ED.)  TO
ENTERTAIN A DIRECT APPEAL.  IT DOES NOT APPEAR FROM THE RECORD THAT THE
COMMISSION LODGED A PROTECTIVE APPEAL IN THE COURT OF APPEALS, AND THE
TIME TO DO SO HAS ALMOST CERTAINLY EXPIRED.  THE APPEAL TO THIS COURT
OCCURRED BEFORE SWIFT & CO. V. WICKHAM, SUPRA, WAS DECIDED, AND THERE
IS NO REASON WHY THE COMMISSION SHOULD BE DEPRIVED OF APPELLATE
REVIEW.  IN ACCORDANCE WITH PRECEDENT, WE VACATE THE JUDGMENT BELOW AND
REMAND THE CASE TO THE DISTRICT COURT SO THAT IT MAY ENTER A FRESH
DECREE FROM WHICH A TIMELY APPEAL MAY BE TAKEN TO THE COURT OF
APPEALS.  SEE PHILLIPS V. UNITED STATES, 312 U.S. 246, 254.  IT IS SO
ORDERED. 
..END :





ALBANESE V. NEDERL. AMERIK MAATS 382 U.S. 283 


NO. 523.  DECIDED DECEMBER 13, 1965* - 346 F.2D 481, CERTIORARI DENIED
IN NOS. 557 AND 654; AND IN NO. 523 CERTIORARI GRANTED, JUDGMENT
REVERSED AND DISTRICT COURT JUDGMENT REINSTATED. 

*TOGETHER WITH NO. 557, INTERNATIONAL TERMINAL OPERATING CO., INC. V.
N.V. NEDERL.  AMERIK STOOMV.  MAATS.; AND NO. 654, N.V. NEDERL.  AMERIK
STOOMV.  MAATS.  V. ALBANESE ET AL., ALSO ON PETITIONS FOR WRITS OF
CERTIORARI TO THE SAME COURT. 


ALBANESE V. N.V. NEDERL.  AMERIK STOOMV.  MAATS.  ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE MOTION OF THE AMERICAN TRIAL LAWYERS ASSOCIATION FOR LEAVE TO
FILE A BRIEF, AS AMICUS CURIAE, IS GRANTED.  THE PETITION FOR
CERTIORARI IN NO. 523, ALBANESE V. N.V. NEDERL.  AMERIK STOOMV. 
MAATS., IS ALSO GRANTED. 

WE BELIEVE THAT THE JUDGMENT OF THE COURT OF APPEALS SETTING ASIDE
THE JUDGMENT FOR PETITIONER ALBANESE ON THE GROUND THAT THE TRIAL COURT
INCORRECTLY CHARGED THE JURY ON THE ISSUE OF NEGLIGENCE IS ERRONEOUS. 
GUTIERREZ V. WATERMAN S.S. CORP., 373 U.S. 206. 

IN ITS OPINION THE COURT OF APPEALS ALSO STATED THAT THE DISTRICT
COURT INCORRECTLY INSTRUCTED THE JURY AS TO THE APPLICABILITY OF THE
SAFETY AND HEALTH REGULATIONS FOR LONGSHORING* ON THE QUESTION OF THE
SHIPOWNER'S LIABILITY.  BUT WE DO NOT READ THAT COURT'S OPINION AS
MAKING THIS AN INDEPENDENT GROUND FOR ORDERING A NEW TRIAL.  SO WE NOT
ONLY REVERSE THE JUDGMENT OF THE COURT OF APPEALS IN THE CASE OF
ALBANESE BUT REINSTATE THE DISTRICT COURT'S JUDGMENT IN HIS FAVOR. 

*29 CFR SEC. 9.1 ET SEQ. (1963), NOW 29 CFR SEC. 1504.1 (1965),
PROMULGATED BY THE SECRETARY OF LABOR UNDER THE AUTHORITY OF PUBLIC LAW
85-742, 72 STAT. 835, 33 U.S.C.  SEC. 941 (1964 ED.). 

THE PETITIONS IN NO. 557, INTERNATIONAL TERMINAL OPERATING CO. V.
N.V. NEDERL.  AMERIK STOOMV.  MAATS.; AND NO. 654, N.V. NEDERL.  AMERIK
STOOMV.  MAATS.  V. ALBANESE, ARE DENIED.  IT IS SO ORDERED. 

MR. JUSTICE HARLAN WOULD HAVE DENIED CERTIORARI IN NO. 523, ALBANESE
V. N.V. NEDERL.  AMERIK STOOMV.  MAATS., BUT THE WRIT HAVING BEEN
GRANTED, HE WOULD HAVE SET THE ISSUES FOR PLENARY CONSIDERATION.  HE
CONCURS IN THE DENIAL OF CERTIORARI IN NO. 557, INTERNATIONAL TERMINAL
OPERATING CO. V. N.V. NEDERL.  AMERIK STOOMV.  MAATS., AND NO. 654,
N.V. NEDERL.  AMERIK STOOMV.  MAATS.  V. ALBANESE. 
..END :
























SORIC V. IMMIGRATION SERVICE 382 U.S. 285 


NO. 610.  DECIDED DECEMBER 13, 1965 - CERTIORARI GRANTED; 346 F.2D 360,
VACATED AND REMANDED. 


SORIC V. IMMIGRATION AND NATURALIZATION SERVICE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

UPON THE STIPULATION OF THE PARTIES AND AN EXAMINATION OF THE ENTIRE
RECORD, THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT
OF THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THAT
COURT WITH INSTRUCTIONS TO REMAND TO THE IMMIGRATION AND NATURALIZATION
SERVICE FOR CONSIDERATION OF CLAIMS FOR RELIEF AS AUTHORIZED BY THE
1965 AMENDMENTS TO THE IMMIGRATION AND NATIONALITY ACT. 
..END :












MOODY V. MINE WORKERS LOCAL 382 U.S. 285 


NO. 852, MISC.  DECIDED DECEMBER 13, 1965.  - APPEAL DISMISSED. 


MOODY V. UNITED MINE WORKERS LOCAL FOR THE UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :


















MAYBERRY V. PENNSYLVANIA 382 U.S. 286 


NO. 11, MISC.  DECIDED DECEMBER 13, 1965.  - CERTIORARI GRANTED; VACATED
AND REMANDED. 


MAYBERRY V. PENNSYLVANIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  UPON CONSIDERATION OF THE
CONCESSIONS OF THE STATE AND AN EXAMINATION OF THE PAPERS IN THE CASE,
THE JUDGMENT OF THE SUPREME COURT OF PENNSYLVANIA IS VACATED AND THE
CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS. 
..END :













O'CONNOR V. OHIO 382 U.S. 286 


NO. 281, MISC.  DECIDED DECEMBER 13, 1965 - REHEARING GRANTED;
CERTIORARI GRANTED; VACATED AND REMANDED. 


O'CONNOR V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE PETITION FOR REHEARING IS GRANTED AND THE ORDER OF OCTOBER 11,
1965, INSOFAR AS IT DENIES CERTIORARI, IS VACATED.  TREATING THE PAPERS
WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF CERTIORARI,
CERTIORARI IS GRANTED AND THE JUDGMENT IS VACATED.  THE CASE IS
REMANDED TO THE SUPREME COURT OF OHIO FOR FURTHER PROCEEDINGS IN LIGHT
OF GRIFFIN V. CALIFORNIA, 380 U.S. 609. 
..END :













TRAVIA V. LOMENZO 382 U.S. 287 


NO. 633.  DECIDED DECEMBER 13, 1965 - AFFIRMED. 


TRAVIA ET AL. V. LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT FOR THE REASONS STATED IN
HIS ACQUIESCENCE TO THE AFFIRMANCE OF THE JUDGMENT IN TRAVIA V.
LOMENZO, ANTE, P. 4, AT 8. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











HAZELTINE RESEARCH V. BRENNER 382 U.S. 252 


NO. 57.  ARGUED NOVEMBER 17, 1965.  - DECIDED DECEMBER 8, 1965.  - 119
U.S. APP. D.C. 261, 340 F.2D 786, AFFIRMED. 


A PATENT APPLICATION PENDING IN THE PATENT OFFICE AT THE TIME A SECOND
APPLICATION IS FILED CONSTITUTES PART OF THE "PRIOR ART" WITHIN THE
MEANING OF 35 U.S.C. SEC. 103.  ALEXANDER MILBURN CO. V. DAVIS
BOURNONVILLE CO., 270 U.S. 390, FOLLOWED.  PP. 254-256. 

HAZELTINE RESEARCH, INC., ET AL. V. BRENNER, COMMISSIONER OF PATENTS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION PRESENTED HERE IS WHETHER AN APPLICATION FOR PATENT
PENDING IN THE PATEND OFFICE AT THE TIME A SECOND APPLICATION IS FILED
CONSTITUTES PART OF THE "PRIOR ART" AS THAT TERM IS USED IN 35 U.S.C.
SEC. 103 (1964 ED.), WHICH READS IN PART: 

"A PATENT MAY NOT BE OBTAINED  ...  IF THE DIFFERENCES BETWEEN THE
SUBJECT MATTER SOUGHT TO BE PATENTED AND THE PRIOR ART ARE SUCH THAT
THE SUBJECT MATTER AS A WHOLE WOULD HAVE BEEN OBVIOUS AT THE TIME THE
INVENTION WAS MADE TO A PERSON HAVING ORDINARY SKILL IN THE ART  ...
." 

THE QUESTION AROSE IN THIS WAY.  ON DECEMBER 23, 1957, PETITIONER
ROBERT REGIS FILED AN APPLICATION FOR A PATENT ON A NEW AND USEFUL
IMPROVEMENT ON A MICROWAVE SWITCH.  ON JUNE 24, 1959, THE PATENT
EXAMINER DENIED REGIS' APPLICATION ON THE GROUND THAT THE INVENTION WAS
NOT ONE WHICH WAS NEW OR UNOBVIOUS IN LIGHT OF THE PRIOR ART AND THUS
DID NOT MEET THE STANDARDS SET FORTH IN SEC. 103.  THE EXAMINER SAID
THAT THE INVENTION WAS UNPATENTABLE BECAUSE OF THE JOINT EFFECT OF THE
DISCLOSURES MADE BY PATENTS PREVIOUSLY ISSUED, ONE TO CARLSON (NO.
2,491,644) AND ONE TO WALLACE (NO. 2,822,526).  THE CARLSON PATENT HAD
BEEN ISSUED ON DECEMBER 20, 1949, OVER EIGHT YEARS PRIOR TO REGIS'
APPLICATION, AND THAT PATENT IS ADMITTEDLY A PART OF THE PRIOR ART
INSOFAR AS REGIS' INVENTION IS CONCERNED.  THE WALLACE PATENT, HOWEVER,
WAS PENDING IN THE PATENT OFFICE WHEN THE REGIS APPLICATION WAS FILED. 
THE WALLACE APPLICATION HAD BEEN PENDING SINCE MARCH 24, 1954, NEARLY
THREE YEARS AND NINE MONTHS BEFORE REGIS FILED HIS APPLICATION AND THE
WALLACE PATENT WAS ISSUED ON FEBRUARY 4, 1958, 43 DAYS AFTER REGIS
FILED HIS APPLICATION.  (FN1) 

AFTER THE PATENT EXAMINER REFUSED TO ISSUE THE PATENT, REGIS APPEALED
TO THE PATENT OFFICE BOARD OF APPEALS ON THE GROUND THAT THE WALLACE
PATENT COULD NOT BE PROPERLY CONSIDERED A PART OF THE PRIOR ART BECAUSE
IT HAD BEEN A "CO-PENDING PATENT" AND ITS DISCLOSURES WERE SECRET AND
NOT KNOWN TO THE PUBLIC.  THE BOARD OF APPEALS REJECTED THIS ARGUMENT
AND AFFIRMED THE DECISION OF THE PATENT EXAMINER.  REGIS AND HAZELTINE,
WHICH HAD AN INTEREST AS ASSIGNEE, THEN INSTITUTED THE PRESENT ACTION
IN THE DISTRICT COURT PURSUANT TO 35 U.S.C. SEC. 145 (1964 ED.)  TO
COMPEL THE COMMISSIONER TO ISSUE THE PATENT.  THE DISTRICT COURT AGREED
WITH THE PATENT OFFICE THAT THE COPENDING WALLACE APPLICATION WAS A
PART OF THE PRIOR ART AND DIRECTED THAT THE COMPLAINT BE DISMISSED. 
226 F. SUPP. 459.  ON APPEAL THE COURT OF APPEALS AFFIRMED PER CURIAM. 
119 U.S. APP. D.C. 261, 340 F.2D 786.  WE GRANTED CERTIORARI TO DECIDE
THE QUESTION OF WHETHER A CO-PENDING APPLICATION IS INCLUDED IN THE
PRIOR ART, AS THAT TERM IS USED IN 35 U.S.C. SEC. 103.  380 U.S. 960. 

PETITIONERS' PRIMARY CONTENTION IS THAT THE TERM "PRIOR ART," AS USED
IN SEC. 103, REALLY MEANS ONLY ART PREVIOUSLY PUBLICLY KNOWN.  IN
SUPPORT OF THIS POSITION THEY REFER TO A STATEMENT IN THE LEGISLATIVE
HISTORY WHICH INDICATES THAT PRIOR ART MEANS "WHAT WAS KNOWN BEFORE AS
DESCRIBED IN SECTION 102."  (FN2)  THEY CONTEND THAT THE USE OF THE
WORD "KNOWN" INDICATES THAT CONGRESS INTENDED PRIOR ART TO INCLUDE ONLY
INVENTIONS OR DISCOVERIES WHICH WERE ALREADY PUBLICLY KNOWN AT THE TIME
AN INVENTION WAS MADE. 

IF PETITIONERS ARE CORRECT IN THEIR INTERPRETATION OF "PRIOR ART,"
THEN THE WALLACE INVENTION, WHICH WAS NOT PUBLICLY KNOWN AT THE TIME
THE REGIS APPLICATION WAS FILED, WOULD NOT BE PRIOR ART WITH REGARD TO
REGIS' INVENTION.  THIS IS TRUE BECAUSE AT THE TIME REGIS FILED HIS
APPLICATION THE WALLACE INVENTION, ALTHOUGH PENDING IN THE PATENT
OFFICE, HAD NEVER BEEN MADE PUBLIC AND THE PATENT OFFICE WAS FORBIDDEN
BY STATUTE FROM DISCLOSING TO THE PUBLIC, EXCEPT IN SPECIAL
CIRCUMSTANCES, ANYTHING CONTAINED IN THE APPLICATION.  (FN3) 

THE COMMISSIONER, RELYING CHIEFLY ON ALEXANDER MILBURN CO. V. DAVIS
BOURNONVILLE CO., 270 U.S. 390, CONTENDS THAT WHEN A PATENT IS ISSUED,
THE DISCLOSURES CONTAINED IN THE PATENT BECOME A PART OF THE PRIOR ART
AS OF THE TIME THE APPLICATION WAS FILED, NOT, AS PETITIONERS CONTEND,
AT THE TIME THE PATENT IS ISSUED.  IN THAT CASE A PATENT WAS HELD
INVALID BECAUSE, AT THE TIME IT WAS APPLIED FOR, THERE WAS ALREADY
PENDING AN APPLICATION WHICH COMPLETELY AND ADEQUATELY DESCRIBED THE
INVENTION.  IN HOLDING THAT THE ISSUANCE OF A PATENT BASED ON THE FIRST
APPLICATION BARRED THE VALID ISSUANCE OF A PATENT BASED ON THE SECOND
APPLICATION, MR. JUSTICE HOLMES, SPEAKING FOR THE COURT, SAID, "THE
DELAYS OF THE PATENT OFFICE OUGHT NOT TO CUT DOWN THE EFFECT OF WHAT
HAS BEEN DONE  ...  .  THE FIRST APPLICANT HAD TAKEN STEPS THAT WOULD
MAKE IT PUBLIC AS SOON AS THE PATENT OFFICE DID ITS WORK, ALTHOUGH, OF
COURSE, AMENDMENTS MIGHT BE REQUIRED OF HIM BEFORE THE END COULD BE
REACHED.  WE SEE NO REASON IN THE WORDS OR POLICY OF THE LAW FOR
ALLOWING THE SECOND APPLICANT TO PROFIT BY THE DELAY ... ."  AT P.
401. 

IN ITS REVISION OF THE PATENT LAWS IN 1952, CONGRESS SHOWED ITS
APPROVAL OF THE HOLDING IN MILBURN BY ADOPTING 35 U.S.C. SEC. 102(E)
(1964 ED.)  WHICH PROVIDES THAT A PERSON SHALL BE ENTITLED TO A PATENT
UNLESS "(E) THE INVENTION WAS DESCRIBED IN A PATENT GRANTED ON AN
APPLICATION FOR PATENT BY ANOTHER FILED IN THE UNITED STATES BEFORE THE
INVENTION THEREOF BY THE APPLICANT FOR PATENT."  PETITIONERS SUGGEST,
HOWEVER, THAT THE QUESTION IN THIS CASE IS NOT ANSWERED BY MERE
REFERENCE TO SEC. 102(E), BECAUSE IN MILBURN, WHICH GAVE RISE TO THAT
INVENTION.  BUT HERE THE REGIS INVENTION IS NOT PRECISELY THE SAME AS
THAT CONTAINED IN THE WALLACE PATENT, BUT IS ONLY MADE OBVIOUS BY THE
WALLACE PATENT IN LIGHT OF THE CARLSON PATENT.  WE AGREE WITH THE
COMMISSIONER THAT THIS DISTINCTION IS WITHOUT SIGNIFICANCE HERE.  WHILE
WE THINK PETITIONERS' ARGUMENT WITH REGARD TO SEC. 102(E) IS
INTERESTING, IT PROVIDES NO REASON TO DEPART FROM THE PLAIN HOLDING AND
REASONING IN THE MILBURN CASE.  THE BASIC REASONING UPON WHICH THE
COURT DECIDED THE MILBURN CASE APPLIES EQUALLY WELL HERE.  WHEN WALLACE
FILED HIS APPLICATION, HE HAD DONE WHAT HE COULD TO ADD HIS DISCLOSURES
TO THE PRIOR ART. THE REST WAS UP TO THE PATENT OFFICE.  HAD THE PATENT
OFFICE ACTED FASTER, HAD IT ISSUED WALLACE'S PATENT TWO MONTHS EARLIER,
THERE WOULD HAVE BEEN NO QUESTION HERE.  AS JUSTICE HOLMES SAID IN
MILBURN, "THE DELAYS OF THE PATENT OFFICE OUGHT NOT TO CUT DOWN THE
EFFECT OF WHAT HAS BEEN DONE."  P. 401. 

TO ADOPT THE RESULT CONTENDED FOR BY PETITIONERS WOULD CREATE AN AREA
WHERE PATENTS ARE AWARDED FOR UNPATENTABLE ADVANCES IN THE ART. WE SEE
NO REASON TO READ INTO SEC. 103 A RESTRICTED DEFINITION OF "PRIOR ART"
WHICH WOULD LOWER STANDARDS OF PATENTABILITY TO SUCH AN EXTENT THAT
THERE MIGHT EXIST TWO PATENTS WHERE THE CONGRESS HAS PLAINLY DIRECTED
THAT THERE SHOULD BE ONLY ONE.  AFFIRMED. 

FN1  IT IS NOT DISPUTED THAT REGIS' ALLEGED INVENTION, AS WELL AS HIS
APPLICATION, WAS MADE AFTER WALLACE'S APPLICATION WAS FILED.  THERE IS,
THEREFORE, NO QUESTION OF PRIORITY OF INVENTION BEFORE US. 

FN2  H.R. REP. NO. 1923, 82D CONG., 2D SESS., P. 7 (1952). 

FN3  35 U.S.C. SEC. 122 (1964 ED.)  STATES:  "APPLICATIONS FOR
PATENTS SHALL BE KEPT IN CONFIDENCE BY THE PATENT OFFICE AND NO
INFORMATION CONCERNING THE SAME GIVEN WITHOUT AUTHORITY OF THE
APPLICANT OR OWNER UNLESS NECESSARY TO CARRY OUT THE PROVISIONS OF ANY
ACT OF CONGRESS OR IN SUCH SPECIAL CIRCUMSTANCES AS MAY BE DETERMINED
BY THE COMMISSIONER." 
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GUNTHER V. SAN DIEGO & A.E.R. CO. 382 U.S. 257 


NO. 27.  ARGUED NOVEMBER 8, 1965 - DECIDED DECEMBER 8, 1965 - 336 F.2D
543, REVERSED AND REMANDED. 


PETITIONER AFTER LONG EMPLOYMENT AS AN ENGINEER WAS REMOVED FROM
SERVICE FOLLOWING AN ADVERSE PHYSICAL REPORT BY RESPONDENT RAILROAD'S
PHYSICIANS.  HIS OWN DOCTOR THEREAFTER EXAMINED PETITIONER AND
PRONOUNCED HIM FIT TO WORK.  WHEN THE RAILROAD REJECTED PETITIONER'S
REQUEST FOR RE-EXAMINATION OR RESTORATION TO SERVICE, HE FILED WITH THE
RAILROAD ADJUSTMENT BOARD A CLAIM FOR REINSTATEMENT AND BACK PAY.  THE
BOARD APPOINTED A THREE-DOCTOR COMMITTEE, WHICH FOUND PETITIONER FIT TO
ACT AS AN ENGINEER.  THE BOARD, HAVING INTERPRETED SENIORITY AND OTHER
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT AS GUARANTEEING
PETITIONER'S CONTINUED SERVICE WHILE PHYSICALLY QUALIFIED, ORDERED HIS
REINSTATEMENT WITH BACK PAY FOR TIME LOST.  UPON THE RAILROAD'S REFUSAL
TO COMPLY, PETITIONER BROUGHT THIS ENFORCEMENT ACTION IN DISTRICT
COURT.  THAT COURT REFUSED TO UPHOLD THE BOARD'S ORDER, FINDING NOTHING
IN THE COLLECTIVE BARGAINING AGREEMENT TO LIMIT THE RAILROAD'S RIGHT TO
REMOVE PETITIONER UPON A MEDICAL DISABILITY FINDING BY ITS PHYSICIANS. 
THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE ADJUSTMENT BOARD, AN EXPERIENCED REPRESENTATIVE BODY CREATED
BY SEC. 3 OF THE RAILWAY LABOR ACT FOR SETTLING DISPUTES IN THE
RAILROAD INDUSTRY, INCLUDING INTERPRETATION OF AGREEMENTS, DID NOT
ABUSE ITS DISCRETION BY ITS INTERPRETATION OF THE COLLECTIVE BARGAINING
AGREEMENT OR ITS APPOINTMENT OF THE MEDICAL BOARD AND RELIANCE ON ITS
FINDINGS.  PP. 261-262. 

2.  A FEDERAL DISTRICT COURT UNDER SEC. 3 FIRST (M) OF THE RAILWAY
LABOR ACT, WHICH PROVIDES FOR FINALITY OF ADJUSTMENT BOARD AWARDS
"EXCEPT INSOFAR AS THEY SHALL CONTAIN A MONEY AWARD," CANNOT OPEN UP
THE BOARD'S FINDING ON THE MERITS MERELY BECAUSE ITS DETERMINATION ON
THE CENTRAL ISSUE OF WRONGFUL DISCHARGE INCLUDED A MONEY AWARD.  PP.
263-264. 

3.  THE DISTRICT COURT HAS POWER UNDER THE ACT TO DETERMINE THE
SEPARABLE ISSUE OF THE SIZE OF THE MONEY AWARD FOR LOST TIME; IN MAKING
THAT DETERMINATION, THE COURT CAN EVALUATE ANY CHANGES IN PETITIONER'S
HEALTH IN THE SEVEN YEARS SINCE THE BOARD HEARD AND DECIDED THE CASE. 
PP. 264-265. 

GUNTHER V. SAN DIEGO & ARIZONA EASTERN RAILWAY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, GUNTHER, WORKED AS A FIREMAN FOR RESPONDENT RAILROAD
FOR EIGHT YEARS, FROM 1916 TO 1924, AND AS AN ENGINEER FOR 30 YEARS,
FROM 1924 UNTIL DECEMBER 30, 1954.  ON THAT DATE, SHORTLY AFTER HIS
SEVENTY-FIRST BIRTHDAY, HE WAS REMOVED FROM ACTIVE SERVICE BECAUSE OF
AN ALLEGED PHYSICAL DISABILITY.  THE RAILROAD'S ACTION WAS TAKEN ON THE
BASIS OF REPORTS MADE BY ITS PHYSICIANS, AFTER PHYSICAL EXAMINATIONS OF
PETITIONER, THAT IN THEIR OPINION HE WAS NO LONGER PHYSICALLY QUALIFIED
TO WORK AS A LOCOMOTIVE ENGINEER BECAUSE HIS "HEART WAS IN SUCH
CONDITION THAT HE WOULD BE LIKELY TO SUFFER AN ACUTE CORONARY
EPISIDE."  DISSATIFIED WITH THE RAILROAD DOCTORS' FINDINGS, MR. GUNTHER
WENT TO A RECOGNIZED SPECIALIST WHO, AFTER EXAMINATION, CONCLUDED THAT
PETITIONER WAS QUALIFIED PHYSICALLY TO CONTINUE WORK AS AN ENGINEER. 
ON THE BASIS OF THIS REPORT PETITIONER REQUESTED THE RAILROAD TO JOIN
HIM IN THE SELECTION OF A THREE-DOCTOR BOARD TO RE-EXAMINE HIS PHYSICAL
QUALIFICATIONS FOR RETURN TO SERVICE.  THE RAILROAD REFUSED.  THIS
DISAGREEMENT LED TO PROLONGED LITIGATION WHICH HAS REACHED US 11 YEARS
AFTER THE CONTROVERSY AROSE. 

WHEN THE RAILROAD REFUSED TO CONSENT TO THE APPOINTMENT OF A NEW
BOARD OF DOCTORS TO RE-EXAMINE PETITIONER OR TO RESTORE HIM TO SERVICE,
HE FILED A CLAIM FOR REINSTATEMENT AND BACK PAY WITH THE RAILROAD
ADJUSTMENT BOARD, WHICH WAS CREATED BY SEC. 3 OF THE RAILWAY LABOR ACT,
AS AMENDED, (FN1) TO ADJUST, AMONG OTHER THINGS, DISPUTES OF RAILROADS
AND THEIR EMPLOYEES "GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS CONCERNING  ...  RULES, OR
WORKING CONDITIONS  ...  ."  (FN2)  THE ADJUSTMENT BOARD, OVER THE
PROTESTS OF THE RAILROAD, DECIDED IT HAD JURISDICTION OF THE GRIEVANCE
AND THEN, REFERRING TO PAST PRACTICE IN SIMILAR CASES, PROCEEDED, AS
ITS FINDINGS SHOW, TO APPOINT A COMMITTEE OF THREE QUALIFIED
PHYSICIANS, TO RE-EXAMINE PETITIONER, "ONE CHOSEN BY CARRIER AND ONE BY
THE EMPLOYE AND THE THIRD BY THE TWO SO SELECTED, FOR THE PURPOSE OF
DETERMINING THE FACTS AS TO CLAIMANT'S DISABILITY AND THE PROPRIETY OF
HIS REMOVAL FROM SERVICE ...  ."  SUBSEQUENTLY, THIS COMMITTEE OF
DOCTORS EXAMINED PETITIONER AND DECIDED BY A MAJORITY VOTE THAT HE WAS
PHYSICALLY QUALIFIED TO ACT AS AN ENGINEER, CONTRARY TO THE PRIOR
FINDINGS OF THE RAILROAD'S DOCTORS.  UPON THE BASIS OF THESE FINDINGS
THE ADJUSTMENT BOARD DECIDED THAT THE RAILROAD HAD BEEN WRONG IN
DISQUALIFYING PETITIONER FOR SERVICE AND SUSTAINED HIS CLAIM "FOR
REINSTATEMENT WITH PAY FOR ALL TIME LOST FROM OCTOBER 15, 1955  ...
."  THE RAILROAD REFUSED TO COMPLY WITH THE BOARD'S ORDER AND
PETITIONER AS AUTHORIZED BY THE ACT (FN3) FILED THIS ACTION IN A
DISTRICT COURT OF THE UNITED STATES FOR AN APPROPRIATE COURT ORDER TO
ENFORCE THE ADJUSTMENT BOARD'S AWARD.  AFTER HEARINGS THE DISTRICT
COURT, IN ITS THIRD OPINION IN THE CASE, HELD THE AWARD ERRONEOUS AND
REFUSED TO ENFORCE IT.  (FN4)  THE DISTRICT COURT'S REFUSAL WAS BASED
ON ITS CONCLUSION THAT THERE WERE NO EXPRESS OR IMPLIED PROVISIONS IN
THE COLLECTIVE BARGAINING CONTRACT WHICH IN THE COURT'S JUDGMENT
LIMITED IN ANY WAY WHAT IT FOUND TO BE THE ABSOLUTE RIGHT OF THE
RAILROAD, IN ABSENCE OF SUCH PROVISIONS, TO REMOVE PETITIONER FROM
ACTIVE SERVICE WHENEVER ITS PHYSICIANS FOUND IN GOOD FAITH "THAT
PLAINTIFF WAS PHYSICALLY DISQUALIFIED FROM SUCH SERVICE."  THE COURT OF
APPEALS AFFIRMED, AGREEING WITH THE INTERPRETATION PUT UPON THE
CONTRACT BY THE DISTRICT COURT, AND THEREBY REJECTED THE BOARD'S
INTERPRETATION OF THE CONTRACT AND ITS DECISION ON THE MERITS OF THE
DISPUTE.  336 F.2D 543.  WE GRANTED CERTIORARI BECAUSE THE HOLDING OF
THE TWO COURTS BELOW SEEMED, IN SEVERAL RESPECTS, TO RUN COUNTER TO THE
REQUIREMENTS OF THE RAILWAY LABOR ACT AS WE HAVE CONSTRUED IT.  380
U.S. 905. 

1.  SECTION 3 FIRST (I) OF THE RAILWAY LABOR ACT PROVIDES THAT
"DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER OR
CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS" ARE TO BE HANDLED BY THE ADJUSTMENT BOARD. 
IN SEC. 3 CONGRESS HAS ESTABLISHED AN EXPERT BODY TO SETTLE "MINOR"
GRIEVANCES LIKE PETITIONER'S WHICH ARISE FROM DAY TO DAY IN THE
RAILROAD INDUSTRY.  THE RAILROAD ADJUSTMENT BOARD, COMPOSED EQUALLY OF
REPRESENTATIVES OF MANAGEMENT AND LABOR IS PECULIARLY FAMILIAR WITH THE
THORNY PROBLEMS AND THE WHOLE RANGE OF GRIEVANCES THAT CONSTANTLY EXIST
IN THE RAILROAD WORLD.  ITS MEMBERSHIP IS IN DAILY CONTACT WITH WORKERS
AND EMPLOYERS, AND KNOWS THE INDUSTRY'S LANGUAGE, CUSTOMS, AND
PRACTICES.  SEE SLOCUM V. DELAWARE, L.&W.R. CO., 339 U.S. 239, 243
244.  THE BOARD'S DECISION HERE FAIRLY READ SHOWS THAT IT CONSTRUED THE
COLLECTIVE BARGAINING PROVISIONS WHICH SECURED SENIORITY RIGHTS,
TOGETHER WITH OTHER PROVISIONS OF THE CONTRACT, AS JUSTIFYING AN
INTERPRETATION OF THE CONTRACT GUARANTEEING TO PETITIONER "PRIORITY IN
SERVICE ACCORIDNG TO HIS SENIORITY AND PURSUANT TO THE AGREEMENT SO
LONG AS HE IS PHYSICALLY QUALIFIED."  THE DISTRICT COURT, WHOSE OPINION
WAS AFFIRMED BY THE COURT OF APPEALS, HOWEVER, REFUSED TO ACCEPT THE
BOARD'S INTERPRETATION OF THIS CONTRACT.  PAYING STRICT ATTENTION ONLY
TO THE BARE WORDS OF THE CONTRACT AND INVOKING OLD COMMON-LAW RULES FOR
THE INTERPRETATION OF PRIVATE EMPLOYMENT CONTRACTS, THE DISTRICT COURT
FOUND NOTHING IN THE AGREEMENT RESTRICTING THE RAILROAD'S RIGHT TO
REMOVE ITS EMPLOYEES FOR PHYSICAL DISABILITY UPON THE GOOD-FAITH
FINDINGS OF DISABILITY BY ITS OWN PHYSICIANS.  CERTAINLY IT CANNOT BE
SAID THAT THE BOARD'S INTERPRETATION WAS WHOLLY BASELESS AND COMPLETELY
WITHOUT REASON.  WE HOLD THAT THE DISTRICT COURT AND THE COURT OF
APPEALS AS WELL WENT BEYOND THEIR PROVINCE IN REJECTING THE ADJUSTMENT
BOARD'S INTERPRETATION OF THIS RAILROAD COLLECTIVE BARGAINING
AGREEMENT.  AS HEREAFTER POINTED OUT CONGRESS, IN THE RAILWAY LABOR
ACT, INVESTED THE ADJUSTMENT BOARD WITH THE BROAD POWER TO ARBITRATE
GRIEVANCES AND PLAINLY INTENDED THAT INTERPRETATION OF THESE
CONTROVERSIAL PROVISIONS SHOULD BE SUBMITTED FOR THE DECISION OF
RAILROAD MEN, BOTH WORKERS AND MANAGEMENT, SERVING ON THE ADJUSTMENT
BOARD WITH THEIR LONG EXPERIENCE AND ACCEPTED EXPERTISE IN THIS FIELD. 

II.  THE COURTS BELOW WERE ALSO OF THE OPINION THAT THE BOARD WENT
BEYOND ITS JURISDICTION IN APPOINTING A MEDICAL BOARD OF THREE
PHYSICIANS TO DECIDE FOR IT THE QUESTION OF FACT RELATING TO
PETITIONER'S PHYSICAL QUALIFICATIONS TO ACT AS AN ENGINEER.  WE DO NOT
AGREE.  THE ADJUSTMENT BOARD, OF COURSE, IS NOT LIMITED TO COMMON-LAW
RULES OF EVIDENCE IN OBTAINING INFORMATION.  THE MEDICAL BOARD WAS
COMPOSED OF THREE DOCTORS, ONE OF WHOM WAS APPOINTED BY THE COMPANY,
ONE BY PETITIONER, AND THE THIRD BY THESE TWO DOCTORS.  THIS NOT ONLY
SEEMS AN EMINENTLY FAIR METHOD OF SELECTING DOCTORS TO PERFORM THIS
MEDICAL TASK BUT IT APPEARS FROM THE RECORD THAT IT IS COMMONLY USED IN
THE RAILROAD WORLD FOR THE VERY PURPOSE IT WAS USED HERE.  IN FACT THE
RECORD SHOWS THAT UNDER RESPONDENT'S PRESENT COLLECTIVE BARGAINING
AGREEMENT WITH ITS ENGINEERS PROVISION IS MADE FOR DETERMINING A
DISPUTE PRECISELY LIKE THE ONE BEFORE US BY THE APPOINTMENT OF A BOARD
OF DOCTORS IN PRECISELY THE MANNER THE BOARD USED HERE.  THIS COURT HAS
SAID THAT THE RAILWAY LABOR ACT'S "PROVISIONS DEALING WITH THE
ADJUSTMENT BOARD WERE TO BE CONSIDERED AS COMPULSORY ARBITRATION IN
THIS LIMITED FIELD."  (FN5)  ON A QUESTION LIKE THE ONE BEFORE US HERE,
INVOLVING THE HEALTH OF PETITIONER, AND HIS PHYSICAL ABILITY TO OPERATE
AN ENGINE, ARBITRATORS WOULD PROBABLY FIND IT DIFFICULT TO FIND A
BETTER METHOD FOR ARRIVING AT THE TRUTH THAN BY THE USE OF DOCTORS
SELECTED AS THESE DOCTORS WERE.  WE REJECT THE IDEA THAT THE ADJUSTMENT
BOARD IN SOME WAY BREACHED ITS DUTY OR WENT BEYOND ITS POWER IN RELYING
AS IT DID UPON THE FINDING OF THIS BOARD OF DOCTORS. 

III.  SECTION 3 FIRST (M) PROVIDES THAT ADJUSTMENT BOARD AWARDS
"SHALL BE FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE, EXCEPT
INSOFAR AS THEY SHALL CONTAIN A MONEY AWARD."  (FN6)  THE AWARD OF THE
BOARD IN THIS CASE, BASED ON THE CENTRAL FINDING THAT PETITIONER WAS
WRONGFULLY REMOVED FROM SERVICE IS TWOFOLD, CONSISTING BOTH OF AN ORDER
OF REINSTATEMENT AND THE MONEY AWARD FOR LOST EARNINGS.  THUS THERE
ARISES THE QUESTION OF WHETHER THE DISTRICT COURT MAY OPEN UP THE
BOARD'S FINDING ON THE MERITS THAT THE RAILROAD WRONGFULLY REMOVED
PETITIONER FROM HIS JOB MERELY BECAUSE ONE PART OF THE BOARD'S ORDER
CONTAINED A MONEY AWARD.  WE HOLD IT CANNOT.  THIS COURT TIME AND AGAIN
HAS EMPHASIZED AND RE-EMPHASIZED THAT CONGRESS INTENDED MINOR
GRIEVANCES OF RAILROAD WORKERS TO BE DECIDED FINALLY BY THE RAILROAD
ADJUSTMENT BOARD.  IN BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER
AND INDIANA R. CO., 353 U.S. 30, THE COURT GAVE A BOARD DECISION THE
SAME FINALITY THAT A DECISION OF ARBITRATORS WOULD HAVE.  IN UNION
PACIFIC R. CO. V. PRICE, 360 U.S. 601, THE COURT DISCUSSED THE
LEGISLATIVE HISTORY OF THE ACT AT LENGTH AND POINTED OUT THAT IT "WAS
DESIGNED FOR EFFECTIVE AND FINAL DECISION OF GRIEVANCES WHICH ARISE
DAILY" AND THAT ITS "STATUTORY SCHEME CANNOT REALISTICALLY BE SQUARED
WITH THE CONTENTION THAT CONGRESS DID NOT PURPOSE TO FORECLOSE
LITIGATION IN THE COURTS OVER GRIEVANCES SUBMITTED TO AND DISPOSED OF
BY THE BOARD  ...  ."  360 U.S., AT 616.  ALSO IN LOCOMOTIVE ENGINEERS
V. LOUISVILLE & NASHVILLE R. CO., 373 U.S. 33, THE COURT SAID THAT
PRIOR DECISIONS OF THIS COURT HAD MADE IT CLEAR THAT THE ADJUSTMENT
BOARD PROVISIONS WERE TO BE CONSIDERED AS "COMPULSORY ARBITRATION IN
THIS LIMITED FIELD," P. 40, "THE COMPLETE AND FINAL MEANS FOR SETTLING
MINOR DISPUTES," P. 39, AND "A MANDATORY, EXCLUSIVE, AND COMPREHENSIVE
SYSTEM FOR RESOLVING GRIEVANCE DISPUTES."  P. 38. 

THE RAILWAY LABOR ACT AS CONSTRUED IN THE FOREGOING AND OTHER
OPINIONS OF THIS COURT DOES NOT ALLOW A FEDERAL DISTRICT COURT TO
REVIEW AN ADJUSTMENT BOARD'S DETERMINATION OF THE MERITS OF A GRIEVANCE
MERELY BECAUSE A PART OF THE BOARD'S AWARD, GROWING FROM ITS
DETERMINATION ON THE MERITS, IS A MONEY AWARD.  THE BASIC GRIEVANCE
HERE - THAT IS, THE COMPLAINT THAT PETITIONER HAS BEEN WRONGFULLY
REMOVED FROM ACTIVE SERVICE AS AN ENGINEER BECAUSE OF HEALTH - HAS BEEN
FINALLY, COMPLETELY, AND IRREVOCABLY SETTLED BY THE ADJUSTMENT BOARD'S
DECISION.  CONSEQUENTLY, THE MERITS OF THE WRONGFUL REMOVAL ISSUE AS
DECIDED BY THE ADJUSTMENT BOARD MUST BE ACCEPTED BY THE DISTRICT
COURT. 

IV.  THERE REMAINS THE QUESTION OF FURTHER PROCEEDINGS IN THIS CASE
WITH RESPECT TO THE MONEY ASPECT OF THE BOARD'S AWARD.  THE BOARD DID
NOT DETERMINE THE AMOUNT OF BACK PAY DUE PETITIONER ON ACCOUNT OF HIS
WRONGFUL REMOVAL FROM SERVICE.  IT MERELY SUSTAINED PETITIONER'S CLAIM
FOR "REINSTATEMENT WITH PAY FOR ALL TIME LOST FROM OCTOBER 15, 1955." 
THOUGH THE BOARD'S FINDING ON THE MERITS OF THE WRONGFUL DISCHARGE MUST
BE ACCEPTED BY THE DISTRICT COURT, IT HAS POWER UNDER THE ACT TO
DETERMINE THE SIZE OF THE MONEY AWARD.  THE DISTINCTION BETWEEN COURT
REVIEW OF THE MERITS OF A GRIEVANCE AND THE SIZE OF THE MONEY AWARD WAS
DRAWN IN LOCOMOTIVE ENGINEERS V. LOUISVILLE & NASHVILLE R. CO., SUPRA,
AT PP. 40-41, WHEN IT WAS SAID THAT THE COMPUTATION OF A TIME-LOST
AWARD IS "AN ISSUE WHOLLY SEPARABLE FROM THE MERITS OF THE WRONGFUL
DISCHARGE ISSUE."  ON THIS SEPARABLE ISSUE THE DISTRICT COURT MAY
DETERMINE IN THIS ACTION HOW MUCH TIME HAS BEEN LOST BY REASON OF THE
WRONGFUL REMOVAL OF PETITIONER FROM ACTIVE SERVICE, AND ANY PROPER
ISSUES THAT CAN BE RAISED WITH REFERENCE TO THE AMOUNT OF MONEY
NECESSARY TO COMPENSATE FOR THE TIME LOST.  IN DECIDING THIS ISSUE AS
TO HOW MUCH MONEY PETITIONER WILL BE ENTITLED TO RECEIVE BECAUSE OF
LOST TIME, THE DISTRICT COURT WILL BEAR IN MIND THE FACT THAT THE
DECISION ON THE MERITS OF THE WRONGFUL REMOVAL ISSUE RELATED TO THE
TIME WHEN THE BOARD HEARD AND DECIDED THE CASE.  SEVEN YEARS HAVE
ELAPSED SINCE THAT TIME, LONG ENOUGH FOR MANY CHANGES TO HAVE OCCURRED
IN CONNECTION WITH PETITIONER'S HEALTH.  THIS WOULD, OF COURSE, BE
RELEVANT IN DETERMINING THE AMOUNT OF MONEY TO BE PAID HIM IN A LAWSUIT
WHICH CAN, AS THE STATUTE PROVIDES, PROCEED ON THIS SEPARABLE ISSUE "IN
ALL RESPECTS AS OTHER CIVIL SUITS" WHERE DAMAGES MUST BE DETERMINED. 

THE JUDGMENTS OF THE COURTS BELOW ARE REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT FOR CONSIDERATION NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  48 STAT. 1185, 45 U.S.C. SEC. 151 ET SEQ. (1964 ED.). 

FN2  SECTION 3 FIRST (I), 48 STAT. 1191, 45 U.S.C. SEC. 153 FIRST
(I)(1964 ED.).  THIS SECTION ALSO PROVIDES THAT DISPUTES BETWEEN
RAILROAD EMPLOYEES AND THEIR EMPLOYERS "FAILING TO REACH AN ADJUSTMENT
...  MAY BE REFERRED BY PETITION OF THE PARTIES OR BY EITHER PARTY TO
THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD WITH A FULL STATEMENT
OF THE FACTS AND ALL SUPPORTING DATA BEARING UPON THE DISPUTES."    FN3
ED.), PROVIDES: 

"IF A CARRIER DOES NOT COMPLY WITH AN ORDER OF A DIVISION OF THE
ADJUSTMENT BOARD WITHIN THE TIME LIMIT IN SUCH ORDER, THE PETITIONER
...  MAY FILE IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT IN WHICH HE RESIDES OR IN WHICH IS LOCATED THE PRINCIPAL
OPERATING OFFICE OF THE CARRIER  ...  A PETITION SETTING FORTH BRIEFLY
...  THE ORDER OF THE DIVISION OF THE ADJUSTMENT BOARD IN THE
PREMISES.  SUCH SUIT IN THE DISTRICT COURT OF THE UNITED STATES SHALL
PROCEED IN ALL RESPECTS AS OTHER CIVIL SUITS, EXCEPT THAT ON THE TRIAL
OF SUCH SUIT THE FINDINGS AND ORDER OF THE DIVISION OF THE ADJUSTMENT
BOARD SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN STATED  ...  .
THE DISTRICT COURTS ARE EMPOWERED, UNDER THE RULES OF THE COURT
GOVERNING ACTIONS AT LAW, TO MAKE SUCH ORDER AND ENTER SUCH JUDGMENT,
BY WRIT OF MANDAMUS OR OTHERWISE, AS MAY BE APPROPRIATE TO ENFORCE OR
SET ASIDE THE ORDER OF THE DIVISION OF THE ADJUSTMENT BOARD." 

FN4  192 F. SUPP. 882, 198 F. SUPP. 402.  THE THIRD OPINION WRITTEN
BY THE COURT IS NOT REPORTED. 

FN5  BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER & INDIANA R.
CO., 353 U.S. 30, 39. 

FN6  48 STAT. 1191, 45 U.S.C. SEC. 153 FIRST (M) (1964 ED.). 
..END :



















AUTO WORKERS V. SCOFIELD 382 U.S. 205 


NO. 18.  ARGUED OCTOBER 20, 1965.  - DECIDED DECEMBER 7, 1965.* - NO.
53, 339 F.2D 801, AND NO. 18, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 53, INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 133, UAW,
AFL-CIO V. FAFNIR BEARING CO. ET AL., ON CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. 


IN NO. 18, A UNION WAS CHARGED BY INDIVIDUAL EMPLOYEES WITH VIOLATIONS
OF THE NATIONAL LABOR RELATIONS ACT, AND THE BOARD'S GENERAL COUNSEL
ISSUED A COMPLAINT.  THE NLRB DISMISSED THE COMPLAINT AFTER A HEARING
AND THE INDIVIDUAL EMPLOYEES SOUGHT REVIEW IN THE COURT OF APPEALS. 
THE NLRB FILED AN ANSWER SUPPORTING THE DECISION.  A MOTION OF
INTERVENTION FILED BY THE UNION, ALTHOUGH NOT OPPOSED BY THE NLRB OR
THE EMPLOYEES, WAS DENIED BY THE COURT.  THE UNION WAS PERMITTED TO
FILE A BRIEF AS AMICUS CURIAE.  IN NO. 53, A UNION FILED CHARGES
AGAINST A COMPANY AND THE BOARD'S GENERAL COUNSEL ISSUED A COMPLAINT. 
AFTER A HEARING THE NLRB ISSUED A CEASE-AND-DESIST ORDER AGAINST THE
COMPANY, WHICH PETITIONED FOR REVIEW IN THE COURT OF APPEALS.  THE NLRB
CROSS-PETITIONED FOR ENFORCEMENT AND THE UNION MOVED TO INTERVENE. 
BOTH THE COMPANY AND THE NLRB OPPOSED INTERVENTION.  THE COURT DENIED
THE MOTION AND AUTHORIZED THE UNION TO FILE AN AMICUS BRIEF. 
CERTIORARI WAS GRANTED IN BOTH CASES.  HELD: 

1.  ALTHOUGH UNDER 28 U.S.C. SEC. 1254(1) ONLY A "PARTY" TO A CASE IN
THE COURT OF APPEALS (WHICH DOES NOT INCLUDE AN AMICUS CURIAE) MAY SEEK
REVIEW HERE, OUR DECISION MAKES CLEAR THAT THE PETITIONERS HAD A RIGHT
TO OBTAIN REVIEW OF THE ORDERS DENYING INTERVENTION.  PP. 208-209. 

2.  THE SUCCESSFUL CHARGED PARTY IN NLRB PROCEEDINGS HAS THE RIGHT TO
INTERVENE IN APPELLATE PROCEEDINGS BROUGHT BY THE UNSUCCESSFUL CHARGING
PARTY.  PP. 209-217. 

(A)  WHILE THE ACT DOES NOT SPECIFICALLY PROVIDE FOR INTERVENTION AT
THE APPELLATE LEVEL, MOST COURTS HAVE RECOGNIZED THE RIGHT OF THE
SUCCESSFUL CHARGED PARTY TO INTERVENE.  P. 211. 

(B)  TO PERMIT SUCH INTERVENTION IN THE INITIAL APPELLATE REVIEW
PROCEEDINGS WILL AVOID DUPLICATION OF PROCEEDINGS, ADHERE TO THE GOAL
OF OBTAINING JUST RESULTS WITH A MINIMUM OF TECHNICAL REQUIREMENTS,
ACCOMPLISH THE OBJECTIVE OF PROMPT DETERMINATION OF LABOR DISPUTES,
INSURE FAIRNESS TO THE WOULD-BE INTERVENOR, AND WILL NOT AFFECT THIS
COURT'S DISCRETIONARY REVIEW POWERS NOR DELAY OR COMPLICATE APPELLATE
PROCEDURES.  PP. 212-216. 

(C)  THE ELEMENT OF FORTUITY, WHEREBY THE UNSUCCESSFUL CHARGED PARTY
HAS A RIGHT TO REVIEW BUT THE SUCCESSFUL CHARGED PARTY DOES NOT, IS
REMOVED.  PP. 216-217. 

(D)  ANALOGIES IN THE JUDICIAL REVIEW ACT OF 1950, AND THE FEDERAL
RULES OF CIVIL PROCEDURE MANIFEST CONGRESSIONAL CONCERN THAT INTERESTED
PRIVATE PARTIES BE GIVEN A RIGHT TO INTERVENE AND PARTICIPATE IN AGENCY
REVIEW PROCEEDINGS.  PP. 216-217. 

3.  THE SUCCESSFUL CHARGING PARTY IN NLRB PROCEEDINGS ALSO HAS THE
RIGHT TO INTERVENE IN THE APPELLATE REVIEW.  PP. 217-222. 

(A)  A SUCCESSFUL CHARGING PARTY, BEING NOT ONLY A MEMBER OF THE
GENERAL PUBLIC WHOSE INTERESTS ARE PROTECTED BY THE NLRB BUT ALSO ONE
WITH VITAL PRIVATE INTERESTS WHICH ARE INVOLVED AND PROTECTED BY THE
ACT IN ITS BLENDING OF BOTH INTERESTS, IS ENTITLED TO RECOGNITION AS A
PARTY IN APPELLATE PROCEEDINGS.  AMALGAMATED UTIL.  WORKERS V.
CONSOLIDATED EDISON CO., 309 U.S. 261, DISTINGUISHED.  PP. 219-221. 

(B)  WHEN THE COURT RULES ON THE MERITS OF AN NLRB ORDER, THE ACT
SUPPORTS THE VIEW THAT THE COURT AND NOT THE AGENCY DEFINES THE PUBLIC
INTEREST.  P. 221. 

(C)  THIS COURT, AND NOT THE LABOR BOARD, IS THE BODY HAVING
DISCRETION TO DECIDE WHICH CASES ARE SUITABLE VEHICLES TO RAISE
IMPORTANT ISSUES ON CERTIORARI.  P. 221. 

(D)  AS IN THE CASE OF THE CHARGED PARTY, THE SUCCESSFUL CHARGING
PARTY SHOULD HAVE THE SAME RIGHT AS AN UNSUCCESSFUL PARTY IN APPEARING
BEFORE AN APPELLATE COURT.  P. 222. 

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, AFL-CIO, LOCAL 283 V. SCOFIELD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE TWO CASES BEFORE US PRESENT CONVERSE SIDES OF A SINGLE QUESTION -
WHETHER PARTIES WHO ARE WHOLLY SUCCESSFUL IN UNFAIR LABOR PRACTICE
PROCEEDINGS BEFORE THE NATIONAL LABOR RELATIONS BOARD HAVE A RIGHT TO
INTERVENE IN THE COURT OF APPEALS REVIEW PROCEEDINGS. 

IN NO. 18 (SCOFIELD), THE UNION LOCAL WAS CHARGED BY FOUR INDIVIDUAL
EMPLOYEES WITH VIOLATIONS OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, 61 STAT. 136, 73 STAT. 519, 29 U.S.C. SEC. 151 ET SEQ. (1964
ED.), FOR FINING CERTAIN UNION MEMBERS FOR EXCEEDING INCENTIVE PAY
CEILINGS SET BY THE UNION.  THE GENERAL COUNSEL OF THE BOARD ISSUED A
COMPLAINT.  AFTER A FULL HEARING, THE BOARD DISMISSED THE COMPLAINT,
145 N.L.R.B. 1097.  THE INDIVIDUAL EMPLOYEES THEN SOUGHT REVIEW IN THE
SEVENTH CIRCUIT.  THE GENERAL COUNSEL FILED AN ANSWER SUPPORTING THE
DECISION.  AT THIS POINT, THE UNION FILED A TIMELY MOTION OF
INTERVENTION, ALLEGING THAT IT WOULD BE DIRECTLY AFFECTED SHOULD THE
APPELLATE COURT SET ASIDE THE BOARD'S DECISION AND DIRECT THE ENTRY OF
A REMEDIAL ORDER AGAINST IT.  NEITHER THE INDIVIDUAL EMPLOYEES NOT THE
BOARD OPPOSED INTERVENTION.  A DIVISION OF THE SEVENTH CIRCUIT DENIED
THE MOTION TO INTERVENE, BUT AUTHORIZED THE UNION TO FILE A BRIEF AS
AMICUS CURAE WITHOUT LEAVE TO PARTICIPATE IN ORAL ARGUMENT.  THE UNION
SOUGHT REVIEW HERE, AND WE GRANTED CERTIORARI TO REVIEW THE DENIAL OF
INTERVENTION BECAUSE OF THE IMPORTANCE OF THE ISSUE AND THE CONFLICT
AMONG THE COURTS OF APPEALS, 379 U.S. 959.  FURTHER PROCEEDINGS WERE
STAYED PENDING THE COMPLETION OF OUR REVIEW. 

IN NO. 53 (FAFNIR), THE LOCAL FILED UNFAIR LABOR PRACTICE CHARGES
AGAINST THE FAFNIR BEARING COMPANY.  THE CHARGING PARTY ALLEGED THAT
THE COMPANY HAD VIOLATED ITS STATUTORY BARGAINING OBLIGATION BY
REFUSING TO PERMIT THE CONTRACTING UNION TO CONDUCT ITS OWN TIME
STUDIES OF JOB OPERATIONS IN THE PLANT.  THE UNION ALLEGEDLY NEEDED TO
CONDUCT THESE STUDIES TO ASCERTAIN WHETHER IT SHOULD PROCEED TO
ARBITRATION.  THE GENERAL COUNSEL ISSUED A COMPLAINT, A HEARING WAS
HELD, AND THE BOARD ENTERED A CEASE-AND-DESIST ORDER AGAINST THE
COMPANY, 146 N.L.R.B. 1582.  THE COMPANY PETITIONED FOR REVIEW IN THE
SECOND CIRCUIT, AND THE BOARD FILED A CROSS-PETITION FOR ENFORCEMENT. 
THE UNION - THE SUCCESSFUL PARTY BEFORE THE BOARD - MOVED TO INTERVENE,
ALLEGING NUMEROUS GROUNDS IN SUPPORT.  BOTH THE COMPANY AND THE BOARD
OPPOSED INTERVENTION.  THE SECOND CIRCUIT DENIED THE MOTION, ALTHOUGH
COGNIZANT OF THE DIFFICULTIES OF THE PROBLEM, AND AUTHORIZED THE UNION
TO FILE AN AMICUS BRIEF.  339 F.2D 801.  WE GRANTED CERTIORARI, 380
U.S. 950, AND CONSOLIDATED FAFNIR WITH SCOFIELD IN ORDER TO CONSIDER
BOTH FACETS OF THE INTERVENTION PROBLEM. 

WE HOLD THAT BOTH THE SUCCESSFUL CHARGED PARTY (IN SCOFIELD) AND THE
SUCCESSFUL CHARGING PARY (IN FAFNIR) HAVE A RIGHT TO INTERVENE IN THE
COURT OF APPEALS PROCEEDING WHICH REVIEWS OR ENFORCES LABOR BOARD
ORDERS.  WE THINK THAT CONGRESS INTENDED TO CONFER INTERVENTION RIGHTS
UPON THE SUCCESSFUL PARTY TO THE LABOR BOARD PROCEEDINGS IN THE COURT
IN WHICH THE UNSUCCESSFUL PARTY CHALLENGES THE BOARD'S DECISION. 

A THRESHOLD QUESTION CONCERNS OUR JURISDICTION TO GRANT CERTIORARI. 
UNDER SEC. 1254(1) OF THE JUDICIAL CODE, (FN1) ONLY A "PARTY" TO A CASE
IN THE COURT OF APPEALS MAY SEEK REVIEW HERE.  IN BOTH THESE CASES, THE
UNION SEEKING CERTIORARI WAS DENIED INTERVENTION AND RELEGATED TO THE
STATUS OF AN AMICUS CURIAE.  BECAUSE AN AMICUS IS NOT A "PARTY" TO THE
CASE, IT WOULD NOT HAVE BEEN ENTITLED TO FILE A PETITION TO REVIEW A
JUDGMENT ON THE MERITS BY THE COURT OF APPEALS, EX PARTE LEAF TOBACCO
BOARD, 222 U.S. 578, 581; EX PARTE CUTTING, 94 U.S. 14, 20-22.  IN VIEW
OF OUR DECISION HEREIN, WE THINK THAT SEC. 1254(1) PERMITS US TO REVIEW
THE ORDERS DENYING INTERVENTION.  SEE RAILROAD TRAINMEN V. BALTIMORE &
O.R. CO., 331 U.S. 519. 

     I. 

CONGRESS HAS MADE A CAREFUL ADJUSTMENT OF THE INDIVIDUAL AND
ADMINISTRATIVE INTERESTS THOUGHOUT THE COURSE OF LITIGATION OVER A
LABOR DISPUTE.  THE LABOR ACT DOES NOT, HOWEVER, PROVIDE EXPLICITLY FOR
INTERVENTION AT THE APPELLATE COURT LEVEL.  SECTION 10(F) OF THE ACT,
61 STAT. 148, AS AMENDED, 29 U.S.C. SEC. 160(F)(1964 ED.), SERVES AS
OUR GUIDE, EVEN THOUGH IT IS SILENT ON THE INTERVENTION PROBLEM.  IT
STATES, IN PERTINENT PART: 

"ANY PERSON AGGRIEVED BY A FINAL ORDER OF THE BOARD GRANTING OR
DENYING IN WHOLE OR IN PART THE RELIEF SOUGHT MAY OBTAIN A REVIEW OF
SUCH ORDER IN ANY UNITED STATES COURT OF APPEALS IN THE CIRCUIT WHEREIN
THE UNFAIR LABOR PRACTICE IN QUESTION WAS ALLEGED TO HAVE BEEN ENGAGED
IN OR WHEREIN SUCH PERSON RESIDES OR TRANSACTS BUSINESS, OR IN THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, BY FILING
IN SUCH A COURT A WRITTEN PETITION PRAYING THAT THE ORDER OF THE BOARD
BE MODIFIED OR SET ASIDE." 

SIMILARLY, NO SPECIFIC STANDARDS GOVERN THE PROPRIETY OF INTERVENTION
IN LABOR BOARD REVIEW PROCEEDINGS.  THE RULES OF THE COURTS OF APPEALS
TYPICALLY PROVIDE:  "A PERSON DESIRING TO INTERVENE IN A CASE WHERE THE
APPLICABLE STATUTE DOES NOT PROVIDE FOR INTERVENTION SHALL FILE WITH
THE COURT AND SERVE UPON ALL PARTIES A MOTION FOR LEAVE TO INTERVENE." 
(FN2) 

LACKING A CLEAR DIRECTIVE ON THE SUBJECT, WE LOOK TO THE STATUTORY
DESIGN OF THE ACT.  CF. SCRIPPS-HOWARD RADIO V. COMMISSION, 316 U.S. 4,
11.  OF COURSE, IN CONSIDERING THE PROPRIETY OF INTERVENTION IN THE
COURTS OF APPEALS, OUR DISCUSSION IS LIMITED TO LABOR BOARD REVIEW
PROCEEDINGS.  FEDERAL AGENCIES ARE NOT FUNGIBLES FOR INTERVENTION
PURPOSES - CONGRESS HAS TREATED THE MATTER WITH ATTENTION TO THE
PARTICULAR STATUTORY SCHEME AND AGENCY. 

IN SOME INSTANCES, THE WORDS OF THE STATUTE THEMSELVES ELICIT AN
ANSWER.  WHEN THE BOARD ENTERS A FINAL ORDER AGAINST THE CHARGED PARTY,
IT IS CLEAR THAT THE PHRASE "ANY PERSON AGGRIEVED" IN SEC. 10(F)
ENABLES HIM TO SEEK IMMEDIATE REVIEW IN THE APPROPRIATE COURT OF
APPEALS.  ALTERNATIVELY, IF THE BOARD DETERMINES THAT A COMPLAINT
SHOULD BE DISMISSED, THE CHARGING PARTY HAS A STATUTORY RIGHT TO REVIEW
AS A "PERSON AGGRIEVED."  A HYBRID SITUATION OCCURS WHEN THE BOARD
DISMISSES CERTAIN PORTIONS OF THE COMPLAINT AND ISSUES AN ORDER ON
OTHERS.   AS TO THAT PORTION WHICH RESULTS IN A REMEDIAL ORDER AGAINST
HIM, THE CHARGED PARTY IS AGGRIEVED; LIKEWISE, THE CHARGING PARTY IS
AGGRIEVED WITH RESPECT TO THE PORTION OF THE DECISION DISMISSING THE
COMPLAINT.  EACH ONE IS A "PARTY" IN A CONSOLIDATED APPEAL, AND HAS
INVARIABLY BEEN GRANTED LEAVE TO INTERVENE WITH REGARD TO THE PORTION
OF THE ORDER ON WHICH THE BOARD FOUND IN HIS FAVOR.  (FN3) 

SCOFIELD SERVES AS AN EXAMPLE OF ANOTHER VARIANT IN REVIEW
PROCEEDINGS.  THE UNSUCCESSFUL CHARGING PARTY TO THE BOARD PROCEEDINGS
PETITIONED FOR REVIEW, AND THE SUCCESSFUL CHARGED PARTY WISHED TO
INTERVENE.  THE VAST MAJORITY OF THE COURTS HAVE RECOGNIZED HIS RIGHT
TO DO SO.  (FN4)  RECOGNITION OF INTERVENTION RIGHTS IN THIS INSTANCE
IS IN COMPLETE ACCORD WITH THE STATEMENTS IN FORD MOTOR CO. V. LABOR
BOARD, 305 U.S. 364, 369, 373, THAT: 

"WHILE SEC. 10(F) ASSURES TO ANY AGGRIEVED PERSON OPPORTUNITY TO
CONTEST THE BOARD'S ORDER, IT DOES NOT REQUIRE ANY UNNECESSARY
DUPLICATION OF PROCEEDINGS.  THE AIM OF THE ACT IS TO ATTAIN SIMPLICITY
AND DIRECTNESS BOTH IN THE ADMINISTRATIVE PROCEDURE AND ON JUDICIAL
REVIEW  ...  . 

    *         *         *         *         * 

"  ...  THE JURISDICTION TO REVIEW THE ORDERS OF THE LABOR RELATIONS
BOARD IS VESTED IN A COURT WITH EQUITY POWERS, AND WHILE THE COURT MUST
ACT WITHIN THE BOUNDS OF THE STATUTE AND WITHOUT INTRUDING UPON THE
ADMINISTRATIVE PROVINCE, IT MAY ADJUST ITS RELIEF TO THE EXIGENCIES OF
THE CASE IN ACCORDANCE WITH THE EQUITABLE PRINCIPLES GOVERNING JUDICIAL
ACTION.  THE PURPOSE OF THE JUDICIAL REVIEW IS CONSONANT WITH THAT OF
THE ADMINISTRATIVE PROCEEDING ITSELF, - TO SECURE A JUST RESULT WITH A
MINIMUM OF TECHNICAL REQUIREMENTS  ...  ." 

TO ALLOW INTERVENTION TO THE CHARGED PARTY IN THE FIRST APPELLATE
REVIEW PROCEEDING IS TO AVOID "UNNECESSARY DUPLICATION OF PROCEEDINGS,"
AND TO ADHERE TO THE GOAL OF OBTAINING "A JUST RESULT WITH A MINIMUM OF
TECHNICAL REQUIREMENTS."  ANALYSIS OF THE ACT'S MACHINERY IN PRACTICE
SO INDICATES.  A DECISION OF THE REVIEWING COURT TO SET ASIDE THE BOARD
ORDER DISMISSING A COMPLAINT HAS THE EFFECT OF RETURNING THE CASE TO
THE BOARD FOR FURTHER PROCEEDINGS.  THIS NORMALLY RESULTS IN THE
BOARD'S ENTERING AN ORDER AGAINST THE CHARGED PARTY.  FROM THIS
REMEDIAL ORDER, AS NOTED, THE CHARGED PARTY IS AGGRIEVED AND MAY SEEK
REVIEW.  JUDICIAL TIME AND ENERGY IS THEN EXPENDED IN PURSUIT OF ISSUES
ALREADY RESOLVED IN THE FIRST APPEAL.  (FN5)  MOREOVER, THE SECOND
APPEAL COULD LEAD TO UNDESIRABLE "CIRCUIT SHOPPING" AND USELESS
PROLIFERATION OF JUDICIAL EFFORT.  UNDER SEC. 10(F), AN AGGRIEVED
PERSON HAS THE OPTION OF OBTAINING REVIEW EITHER IN THE CIRCUIT IN
WHICH HE MAINTAINS HIS RESIDENCE OR PLACE OF BUSINESS OR IN THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  IN THE SECOND
APPELLATE PROCEEDING, HE COULD OBTAIN A HEARING IN THE CIRCUIT WHICH
DID NOT ORIGINALLY DECIDE THE VALIDITY OF THE BOARD'S DISMISSAL OF THE
COMPLAINT.  PERMITTING INTERVENTION IN THE FIRST REVIEW THUS
CENTRALIZES THE CONTROVERSY AND LIMITS IT TO A SINGLE DECISION,
ACCELERATING FINAL RESOLUTION.  THIS IS IN ACCORD WITH ONE OF THE
OBJECTIVES OF THE LABOR ACT - THE PROMPT DETERMINATION OF THE LABOR
DISPUTES. 

PERMITTING INTERVENTION ALSO INSURES FAIRNESS TO THE WOULD-BE
INTERVENOR.  IF INTERVENTION IS PERMITTED, THE PARTIES TO THE BOARD
PROCEEDINGS ARE ABLE TO PRESENT THEIR ARGUMENTS ON THE ISSUES TO A
REVIEWING COURT WHICH HAS NOT CRYSTALLIZED ITS VIEWS.  TO BE SURE, IF
INTERVENTION IS DENIED IN THE INITIAL REVIEW PROCEEDING, THE CHARGED
PARTY WOULD NOT BE BOUND BY THE DECISION UNDER TECHNICAL RES JUDICATA
RULES.  STILL, THE SALIENT FACTS HAVING BEEN RESOLVED AND THE LEGAL
PROBLEMS ANSWERED IN THIS INITIAL REVIEW, SUBSEQUENT LITIGATION SERVES
LITTLE PRACTICAL VALUE TO THE POTENTIAL INTERVENOR.  IN THE SECOND
APPELLATE PROCEEDING, THE COURT OF APPEALS WOULD ALMOST INVARIABLY
DEFER TO THE INITIAL DECISION AS A METTER OF STARE DECISIS OR OF
COMITY.  (FN6)  SEE, E.G., SIEGEL CO. V. LABOR BOARD, 340 F.2D 309;
ZDANOK V. GLIDDEN CO., 327 F.2D 944, 949-950, CERT. DENIED, 377 U.S.
934. 

ALLOWING INTERVENTION DOES NOT AFFECT THE DISCRETIONARY REVIEW POWERS
OF THIS COURT.  ONE OCCUPYING THE STATUS OF INTERVENOR IN THE COURT OF
APPEALS PROCEEDING MAY SEEK CERTIORARI FROM THE DECISION THERE,
STEELWORKERS V. LABOR BOARD, 373 U.S. 908, 376 U.S. 492; MINE WORKERS
V. EAGLE-PICHER CO., 325 U.S. 335, 338-339.  DENIAL OF INTERVENTION IN
THE INITIAL REVIEW PROCEEDINGS - AND THE ATTENDANT REMAND TO THE BOARD
AND SECOND APPEAL TO THE COURT OF APPEALS - ONLY RESULTS IN A DELAY OF
THE TIME WHEN THE DISAFFECTED PARTY MAY SEEK REVIEW HERE.  SHOULD WE
DECIDE TO GRANT CERTIORARI, THE FIRST REVIEW WOULD SEEM THE MORE
PROPITIOUS TIME, SINCE ALL THE PARTIES ARE THEN BEFORE THE COURT AND
THE DISPUTE HAS BEEN FULLY DEVELOPED WITHOUT INCONVENIENCE TO EITHER
PRIVATE PARTY.  STEELWORKERS V. LABOR BOARD, 376 U.S. 492, AFFORDS AN
APT ILLUSTRATION.  THE COURT OF APPEALS HAD PERMITTED INTERVENTION TO
BE CHARGED PARTY WHO SOUGHT REVIEW FROM THE ADVERSE DECISION THERE.  WE
REVERSED UNANIMOUSLY.  THE BOARD ITSELF HAD NOT SOUGHT CERTIORARI
BECAUSE "THE SOLICITOR GENERAL CONCLUDED THAT OTHER CASES WERE ENTITLED
TO PRIORITY IN SELECTING THE LIMITED NUMBER OF CASES WHICH THE
GOVERNMENT COULD PROPERLY ASK THIS COURT TO REVIEW."  MEMORANDUM FOR
THE NLRB, P. 2, FILED IN CONNECTION WITH THE PETITION FOR CERTIORARI,
NO. 89, OCTOBER TERM, 1963.  HAD THE CHARGED PARTY BEEN DENIED
INTERVENTION IN THE COURT OF APPEALS, THE DECISION OF THE GOVERNMENT
NOT TO APPLY FOR CERTIORARI - UNRELATED TO THE MERITS OF THE CAUSE -
WOULD HAVE UNNECESSARILY POSTPONED RESOLUTION ON THAT IMPORTANT ISSUE. 
(FN7). 

IN FACT, THE LABOR BOARD ITSELF AGREES THAT INTERVENTION BY CHARGED
PARTIES WILL NOT IMPAIR EFFECTIVE DISCHARGE OF ITS DUTIES AND MAY WELL
PROMOTE THE PUBLIC INTEREST.  THE RIGHTS TYPICALLY SECURED TO AN
INTERVENOR IN A REVIEWING COURT - TO PARTICIPATE IN DESIGNATING THE
RECORD, TO PARTICIPATE IN PREHEARING CONFERENCES PREPARATORY TO
SIMPLIFICATION OF THE ISSUES, TO FILE A BRIEF, TO ENGAGE IN ORAL
ARGUMENT, TO PETITION FOR REHEARING IN THE APPELLATE COURT OR TO THIS
COURT FOR CERTIORARI - ARE NOT PRODUCTIVE OF DELAY NOR DO THEY CAUSE
COMPLICATIONS IN THE APPELLATE COURTS.  APPELLATE RECORDS IN LABOR
BOARD CASES ARE GENERALLY COMPLETE, AND WHATEVER MATERIAL THE CHARGED
PARTY MAY SEE FIT TO ADD TO THE APPENDIX WILL NOT AFFECT THE BURDEN IN
PREPARATION.  PARTICIPATION IN DEFINING THE ISSUES BEFORE THE COURT
GUARANTEES THAT ALL RELEVANT MATERIAL IS BROUGHT TO ITS ATTENTION, AND
MAKES THE BRIEFS ON THE MERITS MORE MEANINGFUL.  THE CHARGED PARTY IS
USUALLY ACCORDED THE RIGHT AS AN AMICUS TO FILE A BRIEF ON THE MERITS
EVEN IF DENIED INTERVENTION.  PARTICIPATION IN ORAL ARGUMENT DOES NOT
NECESSARILY ENLARGE THE TOTAL TIME ALLOCATED, SINCE PARTIES ALIGNED ON
THE SAME SIDE ARE USUALLY REQUIRED TO SHARE THE TIME.  (FN8)  AND, AS
NOTED, PETITIONING FOR CERTIORARI AT THIS TIME HAS THE SALUTARY EFFECT
OF INSURING PROMPT ADJUDICATION.  FURTHER, IF A CHARGED PARTY PERMITTED
TO INTERVENE DECIDES TO ACQUIESCE IN THE DECISION OR IF CERTIORARI IS
DENIED BY THIS COURT, IT IS LIKELY THAT HE WILL THEN STIPULATE TO THE
ENTRY OF AN ORDER AGAINST HIM.  THIS WOULD OBVIATE THE NEED FOR
SUPPLEMENTAL AGENCY OR COURT PROCEEDINGS.  ON THE OTHER HAND, AN AMICUS
- WITH THE EXCEPTION OF THE RIGHT TO FILE A BRIEF - MIGHT BE UNABLE
ADEQUATELY TO PRESENT ALL THE RELEVANT DATA TO THE COURT. 

FINALLY, AN ELEMENT OF FORTUITY WOULD BE INJECTED BY THE DENIAL OF
INTERVENTION TO A SUCCESSFUL PARTY IN THE BOARD PROCEEDINGS.  WHEN THE
CHARGED PARTY LOSES BEFORE THE BOARD, HE IS ACCORDED A STATUTORY RIGHT
TO IMMEDIATE REVIEW AND MAY SEEK OR OPPOSE THIS COURT'S ULTIMATE REVIEW
OF THE CASE.   IF HE PREVAILS AT THE AGENCY LEVEL, HOWEVER, DENIAL OF
INTERVENTION DEPRIVES HIM OF THE RIGHTS ACCORDED A LOSING PARTY, EVEN
THOUGH THE ISSUE BEFORE THE REVIEWING COURT IS IDENTICAL - WHETHER A
REMEDIAL ORDER SHOULD HAVE BEEN ENTERED AGAINST THE CHARGED PARTY. 
THESE CONSIDERATIONS LEAD US TO THE ASSUMPTION THAT CONGRESS WOULD NOT
INTEND, WITHOUT CLEARLY EXPRESSING A VIEW TO THE CONTRARY, THAT A PARTY
SHOULD SUFFER BY HIS OWN SUCCESS BEFORE THE AGENCY. 

ADDITIONALLY, HELPFUL ANALOGIES MAY BE FOUND INTHE JUDICIAL REVIEW
ACT OF 1950, GOVERNING INTERVENTION IN THE COURTS OF APPEALS BY PRIVATE
PARTIES DIRECTLY AFFECTED BY AGENCY ORDERS, (FN9) AND IN THE FEDERAL
RULES OF CIVIL PROCEDURE.  (FN10)  WE TAKE THESE PROVISIONS TO MEAN
THAT CONGRESS HAS EXHIBITED A CONCERN THAT INTERESTED PRIVATE PARTIES
BE GIVEN A RIGHT TO INTERVENE AND PARTICIPATE IN THE REVIEW PROCEEDINGS
INVOLVING THE SPECIFIED AGENCY AND ITS ORDERS. 

                                  II. 

THE PROBLEM OF WHETHER INTERVENTION SHOULD BE GRANTED TO THE
SUCCESSFUL CHARGING PARTY TO THE LABOR BOARD PROCEEDINGS PRESENTS
CONSIDERATIONS SOMEWHAT DISTINCT FROM THE CASE OF THE INTERVENING
CHARGED PARTY.  RESOLUTION OF THE PROBLEM IS NO EASY MATTER, AND IT IS
UNDERSTANDABLE THAT THE COURTS HAVE DIVIDED ON THE ISSUE.  (FN11)
STILL, WE BELIEVE THAT CONGRESS INTENDED INTERVENTION RIGHTS TO
OBTAIN. 

THE BOARD OPPOSES INTERVENTION IN FAFNIR.  A CHARGED PARTY MAY INCUR
A LIABILITY ON ACCOUNT OF AN ORDER BEING ENTERED AGAINST HIM.  FAIRNESS
TO HIM THUS REQUIRES THAT HE BE ALLOWED TO INTERVENE TO PRECLUDE THAT
POSSIBILITY.  ON THE OTHER HAND, THE BOARD REASONS, THE CHARGING PARTY
STANDS ONLY TO BECOME A BENEFICIARY OF AN ORDER ENTERED.  (FN12)  AS
SUCH, HE IS BUT ANOTHER MEMBER OF THE PUBLIC WHOSE INTERESTS THE BOARD
IS DESIGNED TO SERVE.  THE LABOR BOARD IS SAID TO BE THE CUSTODIAN OF
THE "PUBLIC INTEREST," TO THE EXCLUSION OF THE SO-CALLED "PRIVATE
INTERESTS" AT STAKE.  SUPPORT FOR THIS VIEW IS CLAIMED TO BE FOUND IN
OUR DECISION IN AMALGAMATED UTIL.  WORKERS V. CONSOLIDATED EDISON CO.,
309 U.S. 261 (1940).  ALSO, THE BOARD FEARS THAT ENABLING THE
INTERVENOR TO PETITION FOR CERTIORARI FROM AN ADVERSE CIRCUIT DECISION
WILL BE INIMICAL TO THE PUBLIC INTEREST.  WE DISAGREE. 

IN PRIOR DECISIONS, THIS COURT HAS OBSERVED THAT THE LABOR ACT
RECOGNIZES THE EXISTENCE OF PRIVATE RIGHTS WITHIN THE STATUTORY
SCHEME.  (FN13)  THESE CASES HAVE, TO BE SURE, EMPHASIZED THE "PUBLIC
INTEREST" FACTOR.  TO EMPLOY THE RHETORIC OF "PUBLIC INTEREST,"
HOWEVER, IS NOT TO IMPLY THAT THE PUBLIC RIGHT EXCLUDES RECOGNITION OF
PAROCHIAL PRIVATE INTERESTS.  A PERUSAL OF THE STATUTORY SCHEME AND THE
BOARD'S RULES AND REGULATIONS IS ILLUSTRATIVE. 

THE STATUTORY MACHINERY BEGINS WITH THE FILING OF AN UNFAIR LABOR
PRACTICE CHARGE BY A PRIVATE PERSON, SEC. 10(B), 61 STAT. 146; SEE
ALSO, 24 FED. REG. 9102 (1959), 29 CFR SEC. 102.9 (1965).  WHEN THE
GENERAL COUNSEL ISSUES A COMPLAINT AND THE PROCEEDING REACHES THE
ADJUDICATIVE STAGE, THE COURSE THE HEARING WILL TAKE IS IN THE AGENCY'S
CONTROL, BUT THE CHARGING PARTY IS ACCORDED FORMAL RECOGNITION:  HE
PARTICIPATES IN THE HEARINGS AS A "PARTY"; (FN14) HE MAY CALL WITNESSES
AND CROSS-EXAMINE OTHERS, MAY FILE EXCEPTIONS TO ANY ORDER OF THE TRIAL
EXAMINER, AND MAY FILE A PETITION FOR RECONSIDERATION TO A BOARD ORDER,
28 FED. REG. 7973 (1963), AS AMENDED, 29 CFR SEC. 102.46 (1965).  OF
COURSE, IF THE BOARD DISMISSES THE COMPLAINT, HE CAN OBTAIN REVIEW AS A
PERSON AGGRIEVED, WHICH SERVES THE "PUBLIC INTEREST" BY GUARANTEEING
THAT THE BOARD INTERPRETATION OF THE RELEVANT PROVISIONS ACCORDS WITH
THE INTENT OF CONGRESS.  (FN15) 

AND THAT THE CHARGING PARTY MAY HAVE VITAL "PRIVATE RIGHTS" IN THE
BOARD PROCEEDING IS CLEAR IN THIS VERY CASE, WHICH ALSO INVOLVES,
POTENTIALLY, A BREACH OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. 
(FN16)  UNDER OUR DECISIONS IN THE STEELWORKERS TRILOGY, 363 U.S. 564,
574, 593, AND CAREY V. WESTINGHOUSE CORP., 375 U.S. 261, THE UNION
COULD TAKE WHATEVER CONTRACTURAL CLAIM IT HAD TO ARBITRATION AND FROM
THERE TO A FEDERAL COURT.  AND WHILE IT IS TRUE THAT THE RIGHTS AND
DUTIES UNDER SEC. 301(A) OF THE LABOR ACT, 61 STAT. 156, ARE NOT
COEXTENSIVE WITH THOSE REDRESSED IN LABOR BOARD PROCEEDINGS, A
DETERMINATION BY AN APPELLATE COURT THAT THE UNION HAS NO STATUTORY
RIGHT TO CONDUCT ITS OWN TIME STUDIES WILL SURELY HAVE AN IMPACT UPON A
LATER DECISION BY AN ARBITRATOR OR AN APPELLATE COURT UNDER SEC. 301(A)
ON THE CONTRACTUAL ISSUE. 

IN SHORT, WE THINK THAT THE STATUTORY PATTERN OF THE LABOR ACT DOES
NOT DICHOTOMIZE "PUBLIC" AS OPPOSED TO "PRIVATE" INTERESTS.  RATHER,
THE TWO INTERBLEND IN THE INTRICATE STATUTORY SCHEME.  (FN17)  NOR DO
WE THINK THAT OUR HOLDING IN AMALGAMATED UTIL.  WORKERS, 309 U.S. 261,
CASTS DOUBT ON THESE NOTIONS.  THE COURT THERE HELD THAT PRIVATE
PARTIES WHO INITIATED UNFAIR LABOR PRACTICE CHARGES MAY NOT PROSECUTE A
CONTEMPT ACTION AGAINST THE CHARGED PARTY IN THE COURT WHICH ENFORCES
THE LABOR BOARD ORDER.  (FN18)  IN THE SAME CASE, THE PRIVATE PARTIES
HAD BEEN PERMITTED TO INTERVENE IN THE COURT OF APPEALS WHEN THE MERITS
OF THE BOARD'S DECISION WERE AT STAKE, 309 U.S., AT 263.  WE FIND
NOTHING INCONSISTENT IN DENYING THE RIGHT OF A PRIVATE PARTY TO
INSTITUTE A CONTEMPT PROCEEDING - WHERE THE BOARD'S EXPERTNESS IN
ACHIEVING COMPLIANCE WITH ORDERS IS CHALLENGED - AND, ON THE OTHER
HAND, IN PERMITTING INTERVENTION IN A PROCEEDING ALREADY IN THE COURT
FOR DECISION.  WHEN THE COURT IS TO RULE ON THE MERITS OF THE BOARD'S
ORDER, THE ACT SUPPORTS THE VIEW THAT IT IS THE COURT AND NOT THE
AGENCY WHICH WILL DEFINE THE PUBLIC INTEREST, SEE SEC. 10(D), 49 STAT.
454, FORD MOTOR CO. V. LABOR BOARD, 305 U.S. 364. 

THE BOARD ALSO ARGUES THAT PERMITTING INTERVENTION WILL ADVERSELY
AFFECT ITS TACTICAL OR BUDGETARY DECISION NOT TO BRING A CASE HERE FOR
REVIEW.  BUT THE OPPORTUNITY IS OPEN TO THE BOARD TO ADVISE THIS COURT
WHETHER A CASE THAT THE INTERVENING CHARGING PARTY BRINGS HERE IS AN
APPROPRIATE VEHICLE TO RAISE IMPORTANT ISSUES.  AND CONGRESS HAS
ENTRUSTED TO THIS COURT, RATHER THAN THE LABOR BOARD, DISCRETIONARY
JURISDICTION TO REVIEW CASES DECIDED BY THE COURTS OF APPEALS.  (FN19) 

MANY OF THE CONSIDERATIONS WHICH FAVOR INTERVENTION IN SCOFIELD ARE
ALSO PERTINENT HERE.  (FN20) OF SPECIAL NOTE IS THE CAPRICIOUSNESS WE
WOULD HAVE TO ASCRIBE TO CONGRESS IN REFUSING TO AFFORD THE SUCCESSFUL
PARTY TO A LABOR BOARD PROCEEDING AN OPPORTUNITY TANTAMOUNT TO THAT OF
THE UNSUCCESSFUL PARTY IN PERSUADING AN APPELLATE COURT.  THE CHARGING
PARTY, LIKE THE CHARGED PARTY, SHOULD NOT BE PREJUDICED BY HIS SUCCESS
BEFORE THE AGENCY.  ACCORDINGLY, WE REVERSE BOTH CASES AND REMAND THEM
TO THE RESPECTIVE COURTS FOR FURTHER PROCEEDINGS.  IT IS SO ORDERED. 

FN1  SECTION 1254(1), 28 U.S.C. SEC. 1254(1) (1964 ED.), PROVIDES: 

"CASES IN THE COURTS OF APPEALS MAY BE REVIEWED BY THE SUPREME COURT
...  : 

"(1) BY WRIT OF CERTIORARI GRANTED UPON THE PETITION OF ANY PARTY TO
ANY CIVIL  ...  CASE, BEFORE OR AFTER RENDITION OF JUDGMENT OR
DECREE." 

FN2  SECOND CIRCUIT RULE 13(F); SEVENTH CIRCUIT RULE 14(F).  THE
OTHER CIRCUITS WHICH PROVIDE FOR INTERVENTION HAVE SUBSTANTIVELY
IDENTICAL RULES:  FIRST CIRCUIT RULE 16(6); THIRD CIRCUIT RULE 18(6);
FOURTH CIRCUIT RULE 27(6); SIXTH CIRCUIT RULE 13(6); EIGHTH CIRCUIT
RULE 27(F); NINTH CIRCUIT RULE 34(6); TENTH CIRCUIT RULE 34(6);
DISTRICT OF COLUMBIA CIRCUIT RULE 38(F). 

FN3  DARLINGTON MFG. CO. V. LABOR BOARD, 325 F.2D 682 (C.A. 4TH
CIR.), VACATED AND REMANDED ON OTHER GROUNDS, SUB NOM. TEXTILE WORKERS
V. DARLINGTON CO., 380 U.S. 263; INDUSTRIAL UNION OF MARINE &
SHIPBUILDINGWORKERS V. LABOR BOARD, 320 F.2D 615 (C.A. 3D CIR.); LABOR
BOARD V. WOOSTER DIV. OF BORG-WARNER CORP., 236 F.2D 898 (C.A. 6TH
CIR.); SEE ALSO AMERICAN NEWSPAPER PUBLISHERS ASSN. V. LABOR BOARD, 190
F.2D 45 (C.A. 7TH CIR.). 

FN4  CARRIER CORP. V. LABOR BOARD, 311 F.2D 135 (C.A.2D CIR.),
REVERSED ON OTHER GROUNDS, SUB NOM. STEELWORKERS V. LABOR BOARD, 376
U.S. 492; LOCAL 1441, RETAIL CLERKS INTERNATIONAL ASSN. V. LABOR BOARD,
326 F.2D 663 (C.A.D.C. CIR.); AMALGAMATED CLOTHING WORKERS OF AMERICA
V. LABOR BOARD, 324 F.2D 228 (C.A.2D CIR.); MINNESOTA MILK CO. V. LABOR
BOARD, 314 F.2D 761 (C.A. 8TH CIR.); GREAT WESTERN BROADCASTING CORP.
V. LABOR BOARD, 310 F.2D 591 (C.A. 9TH CIR.); SELBY-BATTERSBY & CO. V.
LABOR BOARD, 259 F.2D 151 (C.A. 4TH CIR.); KOVACH V. LABOR BOARD, 229
F.2D 138 (C.A. 7TH CIR.). CONTRA, SUPERIOR DERRICK CORP. V. LABOR
BOARD, 273 F.2D 891 (C.A. 5TH CIR.), CERT. DENIED, 364 U.S. 816;
AMALGAMATED MEAT CUTTERS V. LABOR BOARD, 267 F.2D 169 (C.A. 1ST CIR.),
CERT. DENIED, 361 U.S. 863; HALESTON DRUG STORES, INC. V. LABOR BOARD,
190 F.2D 1022 (C.A. 9TH CIR.). 

FN5  THERE ARE, OF COURSE, CASES IN WHICH THE COURT OF APPEALS WILL
REMAND TO THE BOARD TO TAKE ADDITIONAL EVIDENCE OR TO RECONSIDER THE
ORDER IN LIGHT OF LITIGATIONAL DEVELOPMENTS.  IN THESE CASES, THERE IS
A GREATER OPPORTUNITY FOR THE PARTY ORIGINALLY VICTORIOUS BEFORE THE
BOARD SUCCESSFULLY TO PERSUADE IT OR THE APPELLATE COURT THAN IN THE
CASE IN WHICH NO ADDITIONAL EVIDENCE NEED BE TAKEN.  STILL, THE
CONSIDERATIONS DISCUSSED HEREIN STRONGLY SUGGEST THE PROPRIETY OF
INTERVENTION IN THESE CASES AS WELL, ESPECIALLY SINCE, AT THE TIME A
MOTION FOR LEAVE TO INTERVENE IS FILED, THE REVIEWING COURT WILL NOT BE
FULLY APPRISED OF THE ISSUES INVOLVED IN THE CASE. 

THEN, TOO, ONLY 12 PROCEEDINGS IN WHICH THE BOARD HAD ENTERED AN
ORDER DISMISSING THE COMPLAINT AND THE CHARGING PARTY APPEALED THE
DISMISSAL IN THE COURT OF APPEALS OCCURRED DURING THE 1964 FISCAL
YEAR.  SEE 29 NLRB ANN. REP. 201, TABLE 19 (1964).  IN EIGHT OF THESE,
THE BOARD ORDERS WERE AFFIRMED IN FULL.  IBID.  THE SMALL CASELOAD
GIVES FURTHER SUPPORT FOR THE NOTION THAT THE COURTS OF APPEALS, AND
THE BOARD, WILL NOT BE DISADVANTAGED BY ALLOWING INTERVENTION TO THE
CHARGED PARTY. 

FN6  IN THE RATE INSTANCE IN WHICH THE REVIEWING COURT DOES NOT ABIDE
BY THESE PRINCIPLES, AN EVEN MORE AGGRAVATED SITUATION COULD RESULT. 
IN THE SECOND REVIEW PROCEEDING, IF THE NOW-SUCCESSFUL CHARGING PARTY
IS DENIED INTERVENTION AND THE APPELLATE COURT TAKES A DIFFERENT CIEW
OF THE APPLICABLE LAW, THE CHARGING PARTY MIGHT LATER HAVE THE
OPPORTUNITY TO SEEK REVIEW AGAIN AS A "PERSON AGGRIEVED."  THUS, THREE
OR EVEN MORE REVIEW PROCEEDINGS COULD BE ENGENDERED OUT OF THE FAILURE
TO PERMIT INTERVENTION AT THE MOST CONVENIENT STAGE - THE INITIAL
REVIEW PROCEEDING.  SUCH AN INCONGRUOUS RESULT SHOULD NOT BE SANCTIONED
IN LIGHT OF OUR STATEMENT IN FORD MOTOR CO. V. LABOR BOARD, 305 U.S.
364, 370, THAT ALTHOUGH "THERE ARE TWO PROCEEDINGS, SEPARATELY CARRIED
ON THE DOCKET, THEY WERE ESSENTIALL ONE SO FAR AS ANY QUESTION AS TO
THE LEGALITY OF THE BOARD'S ORDER WAS CONCERNED." 

FN7 THE LABOR BOARD MAY ALSO ADVERSELY AFFECT THE RIGHTS OF THE
PRIVATE PARTIES IN OTHER INSTANCES.  FOR EXAMPLE, THE BOARD MAY DECIDE
A CASE AND LATER RE-EVALUATE ITS POSITION AT A TIME WHEN THAT CASE IS
BEFORE AN APPELLATE COURT.  THE GENERAL COUNSEL, IN SUCH A SITUATION,
CANNOT BE EXPECTED WHOLEHEARTEDLY TO ATTEMPT TO CONVINCE AN APPELLATE
COURT OF THE CORRECTNESS OF A DOCTRINE WHICH THE BOARD ITSELF HAS
ABANDONED. 

FN8  FIRST CIRCUIT RULE 28(3); SECOND CIRCUIT RULE 23(C); THIRD
CIRCUIT RULE 31(3); COURT CIRCUIT RULE 15(3); FIFTH CIRCUIT RULE 25(3);
SIXTH CIRCUIT RULE 20(3); SEVENTH CIRCUIT RULE 21(B); EIGHTH CIRCUIT
RULE 13(C); NINTH CIRCUIT RULE 20(3); TENTH CIRCUIT RULE 20(3);
DISTRICT OF COLUMBIA CIRCUIT RULE 19(C). 

ADDITIONALLY, ALL THE CIRCUITS HAVE RULES WHICH PERMIT THE COURT TO
INCREASE THE TIME FOR ORAL ARGUMENT UPON A SHOWING OF GOOD CAUSE. 

FN9  REVIEW OF COMMISSION ORDERS IN GENERAL IS GOVERNED BY THE
PROVISIONS OF THE JUDICIAL REVIEW ACT OF 1950 (THE HOBBS ACT), 64 STAT.
1129, 5 U.S.C. SECS. 1031-1042 (1964 ED.).  THE PROVISION REGARDING
APPELLATE COURT INTERVENTION, 5 U.S.C. SEC. 1038, PROVIDES AS FOLLOWS: 

"THE ATTORNEY GENERAL SHALL BE RESPONSIBLE FOR AND HAVE CHARGE AND
CONTROL OF THE INTERESTS OF THE GOVERNMENT IN ALL COURT PROCEEDINGS
AUTHORIZED BY THIS CHAPTER.  THE AGENCY, AND ANY PARTY OR PARTIES IN
INTEREST IN THE PROCEEDING BEFORE THE AGENCY WHOSE INTERESTS WILL BE
AFFECTED IF AN ORDER OF THE AGENCY IS OR IS NOT ENJOINED, SET ASIDE, OR
SUSPENDED, MAY APPEAR AS PARTIES THERETO OF THEIR OWN MOTION AND AS OF
RIGHT, AND BE REPRESENTED BY COUNSEL IN ANY PROCEEDING TO REVIEW SUCH
ORDER ...  ." 

FN10  THE FEDERAL RULES OF CIVIL PROCEDURE, OF COURSE, APPLY ONLY IN
THE FEDERAL DISTRICT COURTS.  STILL, THE POLICIES UNDERLYING
INTERVENTION MAY BE APPLICABLE IN APPELLATE COURTS.  UNDER RULE
24(A)(2) OR RULE 24(B)(2), WE THINK THE CHARGED PARTY WOULD BE ENTITLED
TO INTERVENE.  SEE MISSOURI-KANSAS PIPE LINE CO. V. UNITED STATES, 312
U.S. 502, 505-506; TEXTILE WORKERS UNION OF AMERICA V. ALLENDALE CO.,
96 U.S. APP. D.C. 401, 403-404, 226 F.2D 765, 767-768.    THE ADVISORY
PANEL ON LABOR-MANAGEMENT RELATIONS LAW ISSUED A REPORT, S. DOC. NO.
81, 86TH CONG., 2D SESS. (1960), WHICH CONTAINED A STATEMENT OF POLICY
THAT "ANY PARTY TO NLRB PROCEEDINGS SHOULD BE ALLOWED TO INTERVENE IN
THE APPELLATE PROCEEDINGS," P. 17. 

FN11  THE CASES WHICH HAVE PERMITTED INTERVENTION USUALLY HAVE NOT
DISCUSSED THE QUESTION, E.G., LABOR BOARD V. JOHNSON, 322 F.2D 216
(C.A. 6TH CIR.); KEARNEY & TRECKER CORP. V. LABOR BOARD, 210 F.2D 852
(C.A. 7TH CIR.), CERT. DENIED, SUB NOM. KEARNEY-TRECKER EMPLOYEES, UAW
V. LABOR BOARD, 348 U.S. 824; WEST TEXAS UTILITIES CO. V. LABOR BOARD,
184 F.2D 233 (C.A.D.C CIR.), CERT. DENIED, 341 U.S. 939.  CONTRA, LABOR
BOARD V. RETAIL CLERKS ASSN., 243 F.2D 777, 783 (C.A. 9TH CIR.);
STEWART DIE CASTING CORP. V. LABOR BOARD, 132 F.2D 801 (C.A. 7TH CIR.);
ALUMINUM ORE CO. V. LABOR BOARD, 131 F.2D 485, 488 (C.A. 7TH CIR.). 

FN12  CF. HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM, 326 (1953): 

"HAVEN'T YOU NOTICED HOW FREQUENTLY THE PROTECTED GROUPS IN AN
ADMINISTRATIVE PROGRAM PAY FOR THEIR PROTECTION BY A SACRIFICE OF
PROCEDURAL AND LITIGATING RIGHTS?  THE AGENCY BECOMES THEIR CHAMPION
AND THEY STAND OR FALL BY IT.  DOES THIS PHENOMENON REFLECT A DISREGARD
OR A RECOGNITION OF THE EQUITIES OF THE SITUATION?"  SEE ALSO JAFFE,
THE PUBLIC RIGHT DOGMA IN LABOR BOARD CASES, 59 HARV. L. REV. 720
(1946). 

FN13  LABOR BOARD V. FANSTEEL METALLURIGICAL CORP., 306 U.S. 240,
258; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194; NATHANSON V.
LABOR BOARD, 344 U.S. 25, 27; SMITH V. EVENING NEWS ASSN., 371 U.S.
195.  SEE JAFFE, THE INDIVIDUAL RIGHT TO INITIATE ADMINISTRATIVE
PROCESS, 25 IOWA L. REV. 485, 528-531 (1940). 

FN14  THE NLRB RULES AND REGULATIONS AND STATEMENTS OF PROCEDURE, 29
CFR SEC. 102.8 (1965), AFFORD THE CHARGING PARTY THIS STATUS.  THE

"THE TERM 'PARTY' AS USED HEREIN SHALL MEAN  ...  ANY PERSON NAMED OR
ADMITTED AS A PARTY, OR PROPERLY SEEKING AND ENTITLED AS OF RIGHT TO BE
ADMITTED AS A PARTY, IN ANY BOARD PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY PERSON FILING A CHARGE OR PETITION UNDER THE ACT, ANY
PERSON NAMED AS RESPONDENT, AS EMPLOYER, OR AS PARTY TO A CONTRACT IN
ANY PROCEEDING UNDER THE ACT  ... ." 

FN15  FOR AN ANALYSIS OF THE RIGHTS OF A CHARGING PARTY BEFORE THE
BOARD, SEE COMMENT, 32 U. CHI.  L. REV. 786 (1965).  OF COURSE, THE
CONSIDERATIONS INVOLVED IN DETERMINING WHETHER THE CHARGING PARTY HAS
CERTAIN RIGHTS BEFORE THE BOARD ARE NOT DISPOSITIVE ON THE QUESTION OF
APPELLATE INTERVENTION.  IN THE FIRST PLACE, THE NEED FOR CENTRALIZED
CONTROL OVER THE AGENCY HEARINGS AND THE STANDARDS UNDER WHICH THEY
OPERATE IS MUCH GREATER AT THE ADMINISTRATIVE THAN THE APPELLATE LEVEL,
WHERE PERFORCE AN ADEQUATE RECORD HAS BEEN MADE FOR ADJUDICATION. 
ALSO, THE STATISTICS OF THE NLRB REVEAL THAT OVER 97 PERCENT OF THE
UNFAIR LABOR PRACTICE CHARGES ARE RESOLVED BEFORE THE CIRCUIT COURT HAS
ENTERED A DECREE.  29 NLRB ANN. REP. 178-179, TABLE 7 (1964).  THIS
WINNOWING PROCESS DIMINISHES ONCE A CASE IS LODGED IN THE CIRCUIT COURT
AND FALLS WITHIN OUR SUPERVISORY POWER OVER THE FEDERAL COURTS.  THEN,
TOO, MANPOWER AND BUDGETARY CONSIDERATIONS ARE OF GREAT CONCERN AT THE
ADMINISTRATIVE LEVEL.  THESE FACTORS ARE NOT NEARLY AS GREAT WHEN A
LABOR DISPUTE REACHES THE APPELLATE COURTS SINCE THE BOARD WILL
INVARIABLY APPEAR TO DEFEND ITS ORDER. 

FN16  IN THE BOARD'S OPINION IN FAFNIR, THE CHARGING PARTY'S
INTERESTS WERE REFERRED TO A DOZEN TIMES AS A STATUTORY RIGHT OF THE
"PRIVATE PARTY," 146 N.L.R.B., AT 1585-1587. 

FN17  SEE RETAIL CLERKS LOCAL 137 V. FOOD EMPLOYERS COUNCIL, INC.,
351 F.2D 525. 

FN18  THE COURT PLACED GREAT WEIGHT UPON THE LANGUAGE AND LEGISLATIVE
HISTORY BEHIND SEC. 10(A), 49 STAT. 453, AS IT READ AT THAT TIME: 

"THE BOARD IS EMPOWERED, AS HEREINAFTER PROVIDED, TO PREVENT ANY
PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED IN SECTION 8)
AFFECTING COMMERCE.  THIS POWER SHALL BE EXCLUSIVE, AND SHALL NOT BE
AFFECTED BY ANY OTHER MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN
OR MAY BE ESTABLISHED BY AGREEMENT, CODE, LAW, OR OTHERWISE." 

THE ITALICIZED PORTION OF SEC. 10(A) WAS DELETED IN THE TAFT-HARTLEY
AMENDMENTS TO THE WAGNER ACT IN 1947, WHEN CONGRESS ADDED THE UNION
UNFAIR LABOR PRACTICE PROVISIONS AND ENACTED SEC. 301(A).  WHILE IT IS
TRUE THAT THE LABOR BOARD DOES NOT CONFER A PRIVATE ADMINISTRATIVE
REMEDY, IT IS EQUALLY TRUE THAT, SINCE 1947, IT SERVES SUBSTANTIALLY AS
AN ORGAN FOR ADJUDICATING PRIVATE DISPUTES.  SEE REPORT OF THE ADVISORY
PANEL ON LABOR-MANAGEMENT RELATIONS LAW, SUPRA, N. 10, P. 5. 

FN19 THE BOARD ALSO CLAIMS THAT THE CHARGING PARTY, IF PERMITTED TO
INTERVENE, WILL BE ABLE TO THWART PROPOSED SETTLEMENTS BETWEEN THE
BOARD AND THE CHARGED PARTY WHEN THE CASE IS IN THE APPELLATE COURT. 
NOTHING IN THE RECORD INDICATES THAT THIS WILL BE THE CONSEQUENCE OF
ALLOWING INTERVENTION AND WE INTIMATE NO VIEW OF THE QUESTION. 

FN20  AS IN THE CASE OF THE CHARGED PARTY, DISALLOWING INTERVENTION
COULD LEAD TO DUPLICITY IN APPELLATE REVIEW, "CIRCUIT SHOPPING,"
UNFAIRNESS TO THE SUCCESSFUL PARTY TO THE BOARD PROCEEDINGS, ETC.
..END :











UNITED GAS V. CALLERY PROPERTIES 382 U.S. 223 


NO. 21.  ARGUED OCTOBER 18-19, 1965.  - DECIDED DECEMBER 7, 1965.* - 335
F.2D 1004, REVERSED. 

*TOGETHER WITH NO. 22, PUBLIC SERVICE COMMISSION OF NEW YORK V.
CALLERY PROPERTIES, INC., ET AL., NO. 26, OCEAN DRILLING & EXPLORATION
CO. V. FEDERAL POWER COMMISSION ET AL., AND NO. 32, FEDERAL POWER
COMMISSION V. CALLERY PROPERTIES, INC., ET AL., ALSO ON CERTIORARI TO
THE SAME COURT. 


FOLLOWING THIS COURT'S DECISION IN THE CATCO CASE, 360 U.S. 378, AND
ITS VACATION OF A JUDGMENT UPHOLDING INITIAL NATURAL GAS PRICES OF 21.4
CENTS TO 23.8 CENTS PER MCF.  FOR NUMEROUS GAS PRODUCERS IN SOUTHERN
LOUISIANA, THE FEDERAL POWER COMMISSION (FPC) INSTITUTED AN AREA RATE
PROCEEDING, FROM WHICH THE PRESENT APPLICATIONS WERE SEVERED FOR A
SEPARATE HEARING.  THE PRODUCERS WERE ADVISED THAT THEY WOULD HAVE TO
REFUND AMOUNTS ULTIMATELY FOUND INCONSISTENT WITH THE PUBLIC INTEREST
AND NECESSITY REQUIREMENTS OF SEC. 7 OF THE NATURAL GAS ACT.  FOLLOWING
THE HEARING THE FPC IMPOSED CONDITIONS ON THE CERTIFICATES GRANTED,
VIZ., THAT (1) THE PRODUCERS START SERVICE AT 18.5 CENTS PER MCF., PLUS
1.5 CENTS TAX REIMBURSEMENT WHERE APPLICABLE - THE "IN-LINE" PRICE FOR
FPC-CERTIFICATED GAS SALES FOR THE CONTRACTS HERE INVOLVED, AND (2) THE
PRODUCERS SHOULD NOT, BEFORE ESTABLISHEMENT OF JUST AND REASONABLE AREA
RATES OR JULY 1, 1967, WHICHEVER SHOULD BE EARLIER, FILE RATES ABOVE
23.55 CENTS, THE LEVEL AT WHICH THE FPC FOUND FILINGS MIGHT TRIGGER
OTHER PRODUCERS' INCREASED RATES UNDER CONTRACT ESCALATION CLAUSES WITH
THE PIPELINES HERE INVOLVED.  THE FPC ALSO ORDERED REFUNDED THE EXCESS
OF CHARGES UNDER THE ORIGINAL CERTIFICATE, OVER THE PROPER INITIAL
PRICES.  THE COURT OF APPEALS HELD ON REVIEW THAT (1) THE PRODUCERS
SHOULD NOT HAVE BEEN LIMITED TO AN INITIAL "IN-LINE" GAS PRICE WITHOUT
THE FPC'S CONSIDERING EVIDENCE OF WHAT WOULD BE A JUST AND REASONABLE
PRICE; (2) THE FPC LACKED POWER TO FIX A PRODUCER'S MAXIMUM FUTURE
RATES; AND (3) THE MEASURE OF THE REFUNDS SHOULD HAVE BEEN THE
DIFFERENCE BETWEEN THE ORIGINAL CONTRACT PRICE AND THE ULTIMATE JUST
AND REASONABLE PRICE.  HELD: 

1.  THE FPC HAD AMPLE POWER UNDER SEC. 7 OF THE NATURAL GAS ACT TO
PROTECT THE PUBLIC INTEREST BY REQUIRING AS AN INTERIM MEASURE THAT
INTERSTATE GAS PRICES BE NO HIGHER THAN EXISTING LEVELS UNDER OTHER
CONTEMPORANEOUS CERTIFICATES, I.E., THE "IN-LINE" PRICES, WITHOUT
CONSIDERING THE EXTENSIVE EVIDENCE UNDER WHICH JUST AND REASONABLE
RATES ARE FIXED UNDER SEC. 5.  PP. 227-228. 

2.  IT WAS A PROPER EXERCISE OF ITS ADMINISTRATIVE EXPERTISE FOR THE
FPC TO FIX THE 23.55 CENT RATE LIMIT, BEYOND WHICH IT FOUND THAT A
GENERAL PRICE RISE MIGHT BE TRIGGERED BY ESCALATION DURING THE INTERIM
PERIOD.  PP. 228-229. 

3.  IN THE EXERCISE OF ITS AUTHORIZED POWER TO ORDER THAT REFUNDS BE
PAID AS PROMPTLY AS POSSIBLE, THE FPC COULD PROPERLY MEASURE THE
REFUNDS DUE BY THE DIFFERENCE BETWEEN THE ORIGINAL CONTRACT RATES WHICH
IT HAD ERRONEOUSLY SANCTIONED AND THE "IN-LINE" RATES; AND THE FPC WAS
JUSTIFIED IN IMPOSING INTEREST TO PREVENT UNJUST ENRICHMENT.  PP. 229
230. 

UNITED GAS IMPROVEMENT CO. ET AL. V. CALLERY PROPERTIES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL POWER COMMISSION IN 1958-1959 GRANTED UNCONDITIONAL
CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY TO NUMEROUS PRODUCERS
OF GAS IN SOUTH LOUISIANA, THE SALES CONTRACTS OF THE PRODUCERS CALLING
FOR INITIAL PRICES RANGING FROM 21.4 CENTS TO 23.8 CENTS PER MCF. 
AFTER DELIVERIES COMMENCED UNDER THOSE CONTRACTS, CONSUMER INTERESTS
CHALLENGED THE ORDERS IN VARIOUS COURTS OF APPEALS.  THE COURT OF
APPEALS FOR THE THIRD CIRCUIT SUSTAINED THE COMMISSION'S ACTION (UNITED
GAS IMPROVEMENT CO. V. FEDERAL POWER COMM'N, 269 F.2D 865) BUT WE
VACATED THE JUDGMENT (PUBLIC SERVICE COMM'N V. FEDERAL POWER COMM'N,
361 U.S. 195) FOR RECONSIDERATION IN LIGHT OF ATLANTIC REFINING CO. V.
PUBLIC SERVICE COMM'N (CATCO), 360 U.S. 378; AND THE OTHER COURTS OF
APPEALS DID LIKEWISE.  (FN1)

THE COMMISSION THEREUPON INSTITUTED AN AREA RATE PROCEEDING FOR SOUTH
LOUISIANA AND CONSOLIDATED THE REMANDED CASES WITH THAT PROCEEDING.  25
F.P.C. 942.  IT ADVISED THE PRODUCERS OF THEIR POTENTIAL OBLIGATION TO
REFUND ANY AMOUNTS EVENTUALLY FOUND TO BE INCONSISTENT "WITH THE
REQUIREMENTS OF THE PUBLIC INTEREST AND NECESSITY" UNDER SEC. 7 OF THE
NATURAL GAS ACT, 52 STAT. 824, AS AMENDED, 15 U.S.C. SEC. 717F.  27
F.P.C. 15.  LATER THE COMMISSION IN THE INTEREST OF EXPEDITION SEVERED
THE PRESENT GROUP OF APPLICATIONS AND SET THEM FOR A HEARING IN A
CONSOLIDATED PROCEEDING UNDER SEC. 7.  27 F.P.C. 482.  AT THE END, THE
COMMISSION IMPOSED TWO CONDITIONS ON THE CERTIFICATES GRANTED IN THESE
CASES.  FIRST, IT PROVIDED THAT THE PRODUCERS COMMENCE SERVICE AT 18.5
CENTS PER MCF., PLUS 1.5 CENTS TAX REIMBURSEMENT WHERE APPLICABLE, A
PRICE THAT IT FOUND TO BE "IN LINE" WITH PRICES FOR COMMISSION
CERTIFICATED SALES OF GAS FROM THE SOUTHERN LOUISIANA PRODUCTION AREA
UNDER GENERALLY CONTEMPORANEOUS CONTRACTS, 30 F.P.C. 283, 288-289. 
SECOND, IT PROVIDED THAT UNTIL JUST AND REASONABLE AREA RATES ARE
DETERMINED FOR SOUTH LOUISIANA, OR UNTIL JULY 1, 1967, WHICHEVER IS
EARLIER, THE PRODUCERS SHALL NOT FILE ANY INCREASED RATES ABOVE 23.55
CENTS, THE LEVEL AT WHICH RATE FILINGS MIGHT TRIGGER INCREASED RATES BY
OTHER PRODUCERS UNDER THE ESCALATION PROVISIONS OF THEIR CONTRACTS WITH
THE PIPELINE COMPANIES HERE INVOLVED.  30 F.P.C. 283, 298. 

IN ADDITION, THE COMMISSION ORDERED THE PRODUCERS TO REFUND TO THEIR
CUSTOMERS THE AMOUNTS IN EXCESS OF THE PROPER INITIAL PRICE WHICH THEY
HAD ALREADY COLLECTED UNDER THE ORIGINAL CERTIFICATE.  30 F.P.C. 283,
290. 

ON REVIEW THE COURT OF APPEALS HELD THAT THE COMMISSION ERRED IN
LIMITING PRODUCERS TO AN INITIAL "IN-LINE" PRICE WITHOUT FIRST
CANVASSING EVIDENCE BEARING ON THE QUESTION OF WHAT WOULD BE A JUST AND
REASONABLE PRICE FOR THE GAS.  IT FURTHER HELD THAT THE COMMISSION HAD
NO POWER TO PLACE AN UPPER LIMIT ON FUTURE RATES THAT A PRODUCER MIGHT
FILE.  FINALLY, THE COURT OF APPEALS, WHILE UPHOLDING THE POWER OF THE
COMMISSION TO ORDER REFUNDS, HELD THAT THE MEASURE OF SUCH REFUNDS WAS
NOT TO BE THE DIFFERENCE BETWEEN THE "IN-LINE" PRICE AND THE ORIGINAL
CONTRACT PRICE, BUT BETWEEN THE LATTER AND THE JUST AND REASONABLE
PRICE SUBSEQUENTLY TO BE FIXED.  335 F.2D 1004.  WE GRANTED CERTIORARI,
380 U.S. 931.  WE REVERSE THE COURT OF APPEALS. 

WE THINK THE COMMISSION ACTED LAWFULLY AND RESPONSIBILY IN LINE WITH
OUR DECISION IN THE CATCO CASE WHERE WE HELD THAT IT NEED NOR PERMIT
GAS TO BE SOLD IN THE INTERSTATE MARKET AT THE PRODUCER'S CONTRACT
PRICE, PENDING DETERMINATION OF JUST AND REASONABLE RATES UNDER SEC. 5,
52 STAT. 823, 15 U.S.C. SEC. 717D.  360 U.S. 378, 388-391.  RATHER, WE
HELD THAT THERE IS AMPLE POWER UNDER SEC. 7(E), (FN2) TO ATTACH
APPROPRIATE PROTECTIVE CONDITIONS.  AND SEE FEDERAL POWER COMM'N V.
HUNT, 376 U.S. 515, 524-527.  THE FIXING OF AN INITIAL "IN-LINE" PRICE
ESTABLISHES A FIRM PRICE AT WHICH A PRODUCER MAY OPERATE, PENDING
DETERMINATION OF A JUST AND REASONABLE RATE, WITHOUT ANY CONTINGENT
OBLIGATION TO MAKE REFUNDS SHOULD A JUST AND REASONABLE RATE TURN OUT
TO BE LOWER THAN THE "IN-LINE" PRICE.  CONSUMER PROTECTION IS AFFORDED
BY KEEPING THE "IN-LINE" PRICE AT THE LEVEL WHERE SUBSTANTIAL AMOUNTS
OF GAS HAVE BEEN CERTIFICATED TO ENTER THE MARKET UNDER OTHER
CONTEMPORANEOUS CERTIFICATES, NO LONGER SUBJECT TO JUDICIAL REVIEW OR
IN ANY WAY "SUSPECT."  WE BELIEVE THE COMMISSION CAN PROPERLY CONCLUDE
UNDER SEC. 7 THAT ADEQUATE PROTECTION TO THE PUBLIC INTEREST REQUIRES
AS AN INTERIM MEASURE THAT GAS NOT ENTER THE INTERSTATE MARKET AT
PRICES HIGHER THAN EXISTING LEVELS.  TO CONSIDER IN THIS SEC. 7
PROCEEDING THE MASS OF EVIDENCE RELEVANT TO THE FIXING OF JUST AND
REASONABLE RATES UNDER SEC. 5 MIGHT IN PRACTICAL EFFECT RENDER NUGATORY
ANY EFFORT TO FIX INITIAL PRICES.  (FN3)  WE SAID IN CATCO THAT SEC. 7
PROCEDURES ARE DESIGNED "TO HOLD THE LINE AWAITING ADJUDICATION OF A
JUST AND REASONABLE RATE" (360 U.S., AT 392), AND THAT "THE INORDINATE
DELAY" IN SEC. 5 PROCEEDINGS (360 U.S., AT 391) SHOULD NOT CRIPPLE
THEM. 

THE SECOND CONDITION, WHICH TEMPORARILY BARS RATE INCREASES BEYOND
23.55 CENTS PER MCF., WAS LIKEWISE AIMED AT KEEPING THE GENERAL PRICE
LEVEL RELATIVELY CONSTANT PENDING DETERMINATION OF THE JUST AND
REASONABLE RATE.  WE NOTED IN FEDERAL POWER COMM'N V. HUNT, SUPRA, AT
524, THAT "A TRIGGERING OF PRICE RISES OFTEN RESULTS FROM THE OUT-OF
LINE INITIAL PRICING OF CERTIFICATED GAS" AND THAT THE POSSIBILITY OF
REFUND DOES NOT AFFORD SUFFICIENT PROTECTION.  AND SEE FEDERAL POWER
COMM'N V. TEXACO INC., 377 U.S. 33, 42-43.  WE THINK, CONTRARY TO THE
COURT OF APPEALS, THAT THERE WAS AMPLE POWER UNDER SEC. 7(E) FOR THE
COMMISSION TO ATTACH THESE CONDITIONS FOR CONSUMER PROTECTION DURING
THIS INTERIM PERIOD THOUGH THE CERTIFICATE WAS NOT A TEMPORARY ONE, AS
IN HUNT, BUT A PERMANENT ONE, AS IN CATCO AND FEDERAL POWER COMM'N V.
TEXACO INC., SUPRA. 

THE "IN-LINE" PRICE OF 18.5 CENTS IS SUPPORTED BY THE CONTRACT PRICES
IN THE SOUTH LOUISIANA AREA THAT WERE NOT "SUSPECT," AND THE SELECTION
OF 23.55 CENTS BEYOND WHICH A PRICE INCREASE MIGHT TRIGGER ESCALATION
REFLECTS THE COMMISSION'S EXPERTISE. 

WE ALSO CONCLUDE THAT THE COMMISSION'S REFUND ORDER WAS ALLOWABLE. 
WE REJECT, AS DID THE COURT OF APPEALS BELOW, THE SUGGESTION THAT THE
COMMISSION LACKED AUTHORITY TO ORDER ANY REFUND.  WHILE THE COMMISSION
"HAS NO POWER TO MAKE REPARATION ORDERS," FEDERAL POWER COMM'N V. HOPE
NATURAL GAS CO., 320 U.S. 591, 618, ITS POWER TO FIX RATES UNDER SEC. 5
BEING PROSPECTIVE ONLY, ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N,
SUPRA, AT 389, IT IS NOT SO RESTRICTED WHERE ITS ORDER, WHICH NEVER
BECAME FINAL, HAS BEEN OVERTURNED BY A REVIEWING COURT.  HERE THE
ORIGINAL CERTIFICATE ORDERS WERE SUBJECT TO JUDICIAL REVIEW; AND
JUDICIAL REVIEW AT TIMES RESULTS IN THE RETURN OF BENEFITS RECEIVED
UNDER THE UPSET ADMINISTRATIVE ORDER.  SEE SECURITIES & EXCHANGE COMM'N
V. CHENERY CORP., 332 U.S. 194, 200-201.  AN AGENCY, LIKE A COURT, CAN
UNDO WHAT IS WRONGFULLY DONE BY VIRTUE OF ITS ORDER.  UNDER THESE
CIRCUMSTANCES, THE COMMISSION COULD PROPERLY CONCLUDE THAT THE PUBLIC
INTEREST REQUIRED THE PRODUCERS TO MAKE REFUNDS (FN4) FOR THE PERIOD IN
WHICH THEY SOLD THEIR GAS AT PRICES EXCEEDING THOSE PROPERLY DETERMINED
TO BE IN THE PUBLIC INTEREST. 

WE THINK THAT THE COMMISSION COULD PROPERLY MEASURE THE REFUND BY THE
DIFFERENCE BETWEEN THE RATES CHARGED AND THE "IN-LINE" RATES TO WHICH
THE ORIGINAL CERTIFICATES SHOULD HAVE BEEN CONDITIONED.  THE COURT OF
APPEALS WOULD DELAY THE PAYMENT OF THE REFUND UNTIL THE "JUST AND
REASONABLE" RATE COULD BE DETERMINED.  WE HAVE SAID ELSEWHERE THAT IT
IS THE DUTY OF THE COMMISSION, "WHERE REFUNDS ARE FOUND DUE, TO DIRECT
THEIR PAYMENT AT THE EARLIEST POSSIBLE MOMENT CONSISTENT WITH DUE
PROCESS."   FEDERAL POWER COMM'N V. TENNESSEE GAS TRANSMISSION CO., 371
U.S. 145, 155.  THESE EXCESSIVE RATES HAVE BEEN COLLECTED SINCE 1958;
UNDER THE CIRCUMSTANCES, THE COMMISSION WAS NOT REQUIRED TO DELAY THIS
REFUND FURTHER.  AND THE IMPOSITION OF INTEREST ON REFUNDS IS NOT AN
INAPPROPRIATE MEANS OF PREVENTING UNJUST ENRICHMENT.  SEE TEXACO, INC.
V. FEDERAL POWER COMM'N, 290 F.2D 149, 157; PHILIP CAREY MFG. CO. V.
LABOR BOARD, 331 F.2D 720, 729-731.  REVERSED. 

FN1  SEE UNITED GAS IMPROVEMENT CO. V. FEDERAL POWER COMM'N, 283 F.2D
817; PUBLIC SERVICE COMM'N V. FEDERAL POWER COMM'N, 109 U.S. APP. D.C.
292, 287 F.2D 146; UNITED GAS IMPROVEMENT CO. V. FEDERAL POWER COMM'N,
287 F.2D 159; UNITED GAS IMPROVEMENT CO. V. FEDERAL POWER COMM'N, 290
F.2D 133; AND UNITED GAS IMPROVEMENT CO. V. FEDERAL POWER COMM'N, 290
F.2D 147. 

FN2  SECTION 7(E) PROVIDES IN PART: 

"THE COMMISSION SHALL HAVE THE POWER TO ATTACH TO THE ISSUANCE OF THE
CERTIFICATE AND TO THE EXERCISE OF THE RIGHTS GRANTED THEREUNDER SUCH
REASONABLE TERMS AND CONDITIONS AS THE PUBLIC CONVENIENCE AND NECESSITY
MAY REQUIRE." 

FN3  IN THE EARLY POST-CATCO CASES, THE COMMISSION APPARENTLY
PROCEEDED ON A CASE-BY-CASE BASIS, CONSIDERING WHATEVER EVIDENCE MIGHT
HAVE BEEN PRESENTED.  SEE, E.G., CONTINENTAL OIL CO., 27 F.P.C. 96, 102
108.  EXPERIENCE CONVINCED IT THAT THE MINIMAL UTILITY DERIVED FROM
COST AND ECONOMIC TREND EVIDENCE WAS OUTWEIGHED BY THE ADMINISTRATIVE
BURDENS AND DELAYS ITS CONSIDERATION INEVITABLY PRODUCED.  SEE SKELLY
OIL CO., 28 F.P.C. 401, 410-412.  THE COMMISSION PROPERLY AND
CONSTRUCTIVELY EXERCISED ITS DISCRETION IN DECLINING TO CONSIDER THIS
LARGE QUANTITY OF EVIDENCE.  TO HAVE DONE SO WOULD HAVE REQUIRED A
CONSIDERABLE EXPENDITURE OF MANPOWER, CF. WISCONSIN V. FEDERAL POWER
COMM'N, 373 U.S. 294, 313.  WE HAVE PREVIOUSLY ENCOURAGED THE
COMMISSION TO DEVISE REASONABLE MEANS OF STREAMLINING ITS PROCEDURES,
SEE FEDERAL POWER COMM'N V. HUNT, SUPRA, AT 527, AND WE REGARD THE
COMMISSION'S DECISION HERE AS AN APPROPRIATE STEP IN THAT DIRECTION. 
CF. FEDERAL POWER COMM'N V. TEXACO INC., 377 U.S. 33, 44. 

FN4  THE PROBLEM OF REFUNDS FOR AMOUNTS COLLECTED ABOVE THE "IN-LINE"
PRICE IS NOT AFFECTED HERE BY ANY FILING UNDER SEC. 4 FOR INCREASES
WITHIN THE LIMITS OF THE TRIGGERING MORATORIUM.  52 STAT. 822, 15
U.S.C. SEC. 717C.  UNDER SEC. 4(D), A 30-DAY NOTICE TO THE COMMISSION
AND TO THE PUBLIC IS REQUIRED FOR ALL RATE INCREASES, THE COMMISSION
HAVING AUTHORITY UNDER SEC. 4(E) TO SUSPEND THE NEW RATE FOR FIVE
MONTHS AND THEREAFTER TO ACT ONLY "AFTER FULL HEARINGS."  IF THE
COMMISSION HAS NOT ACTED AT THE EXPIRATION OF THE PERIOD OF SUSPENSION,
THE NEW RATES BECOME EFFECTIVE.  THE COMMISSION MAY REQUIRE THE
PRODUCER TO FURNISH A BOND, AND THEREAFTER MAY COMPEL REFUND OF "THE
PORTION OF SUCH INCREASED RATES OR CHARGES BY ITS DECISION FOUND NOT
JUSTIFIED." 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

WHILE THE COMMISSION'S EXPANSIVE VIEW OF ITS POWERS SEEMS TO ME
LARGELY DEFENSIBLE IN THE ABSTRACT, I BELIEVE ITS ACTUAL DECISION
REVEALS ERROR AND UNFAIRNESS IN IMPORTANT RESPECTS. 

                                             I. 

THE PRICE CONDITION, ALONE OF THE THREE KEY PRONGS OF THE
COMMISSION'S ORDER, CAN IN MY VIEW BE WHOLLY SUSTAINED.  THE CHIEF
CHALLENGE TO IT STEMS FROM THE EXCLUSION IN THE SEC. 7 HEARING OF A
MASS OF COST AND SUPPLY-DEMAND EVIDENCE TENDERED BY PRODUCERS.  (FN1)
ALTHOUGH THE ENCOMPASSING SEC. 7 STANDARD OF PUBLIC CONVENIENCE AND
NECESSITY ENCOURAGES A BROAD INQUIRY, THE COMMISSION HAS GIVEN VALID
REASONS FOR LIMITING ITSELF TO THE IN-LINE PRICE FOR THE TIME BEING. 
AREA PRICING ULTIMATELY AIMS TO SIMPLIFY PROCEEDINGS UNDER THE STATUTE,
BUT THE TRANSITION TO IT IS SAID TO STRAIN THE COMMISSION'S PRESENT
RESOURCES FOR INVESTIGATION.  SEE WISCONSIN V. FPC, 373 U.S. 294, 298
300, 313-314.  THE IN-LINE PRICE, COMPARATIVELY EASY TO FIX, PROVIDES A
FIRM BASIS FOR PRODUCERS, HELPS AVOID UNREFUNDABLE INITIAL OVERCHARGES,
AND EXERTS A DOWNWARD PRESSURE ON PRICE; AT THE SAME TIME, PRODUCERS
CAN FILE INCREASES UNDER SEC. 4 WITH A SIX-MONTH DELAY AT MOST.  THE
COMMISSION HAS GIVEN A FAIR TRIAL TO COST EVIDENCE, (FN2) AND NOTHING
IN THE OFFER OF PROOF SUGGESTS A SUPPLY-DEMAND CRISIS WARRANTING COURT
INTERVENTION WITH THIS ADMINISTRATIVE APPROACH. 

IN LOCATING THE IN-LINE PRICE, THE COMMISSION HAS IGNORED A NUMBER OF
CONTEMPORANEOUS HIGH-PRICE CONTRACTS LABELED "SUSPECT" BECAUSE THEN
UNDER REVIEW, DISAPPROVED, OR DEEMED INFLUENCED BY THOSE UNDER REVIEW
OR DISAPPROVED.  ALTHOUGH THE DANGER OF USING A CROOKED MEASURING ROD
DEMANDS SOME PRECAUTION, THIS BLANKET EXCLUSION ALSO CHANCES SOME
DISTORTION IN FAVOR OF AN UNDULY LOW IN-LINE PRICE.  IN THE MAIN THE
PRODUCERS HAVE CHOSEN NOT TO BRIEF THIS QUESTION, APPARENTLY UNDER THE
MISAPPREHENSION THAT THE GOVERNMENT HAS NOT HERE SOUGHT TO SUSTAIN THE
EXCLUSION OF THESE CONTRACTS OR THAT THE LOWER COURT'S FAILURE TO REACH
THE QUESTION PRECLUDED THIS COURT FROM DOING SO.  (FN3) BUT WHILE THE
SUSPECT ORDER RULE MAY BY DEFAULT BE ABIDED IN THIS INSTANCE, I WOULD
NOT CLOSE THE DOOR TO FUTURE ARGUMENTS FOR A DIFFERENT SOLUTION OF THE
DILEMMA.    A LAST TROUBLING ASPECT OF THE IN-LINE PRICE DERIVES FROM A
CRITICAL AND UNUSUAL CIRCUMSTANCE: IT, LIKE THE OTHER CONDITIONS IN
THIS CASE, WAS IMPOSED FOR THE FIRST TIME ON REMAND, SEVERAL YEARS
AFTER AN UNCONDITIONED PERMANENT CERTIFICATE HAD ISSUED.  PRESUMABLY
FOR SIX MONTHS HENCE, PRODUCERS WILL BE COMPELLED TO SELL AT A PRICE
THEY MIGHT NOT HAVE ACCEPTED WHEN FREE TO REFUSE; FOR ALL THAT APPEARS,
THE PRICE MAY EVEN BE BELOW COST, LET ALONE A FAIR PROFIT.  HOWEVER, IN
GENERAL THE PRODUCERS APPARENTLY DID NOT SEEK AN OPTION TO CANCEL
FUTURE SALES IF DISSATISFIED BY THE NEWLY CONDITIONED CERTIFICATES, THE
SIX-MONTH DELAY IS BOTH BRIEF AND FAMILIAR, AND I CANNOT SAY THE
COMMISSION DID NOT HAVE A LEGITIMATE INTEREST IN IMPOSING THE IN-LINE
PRICE AT THE TIME IT DID.          II. 

THE PRICE-INCREASE MORATORIUM ALSO SEEMS TO ME A MEASURE NOT
GENERALLY BEYOND THE COMMISSION'S GRASP, BUT IT SHOULD NOT BE SUSTAINED
ON THE RECORD BEFORE US.  RECOGNIZING FORCE IN THE CONTRARY VIEW OF THE
COURT OF APPEALS, I DO NOT BELIEVE THAT SEC. 4 MUST BE READ TO BESTOW
ON PRODUCERS AN INVINCIBLE RIGHT TO RAISE PRICES SUBJECT ONLY TO A SIX
MONTH DELAY AND REFUND LIABILITY.  CF. FPC V. TEXACO INC., 377 U.S. 33;
FPC V. HUNT, 376 U.S. 515.  A FREEZE UNTIL 1967 IS NOT PERMANENT PRICE
FIXING, AND IN THIS INTERREGNUM BETWEEN INDIVIDUAL AND AREA PRICING,
THE HAZARD OF IRREVERSIBLE PRICE INCREASES WARRANTS IMPOSING SOME
BRAKE.  A LENGTHY MORATORIUM - COUPLED WITH A REFUSAL TO CONSIDER COST
OR SUPPLY-DEMAND FIGURES IN SETTING PRICES FOR THE DURATION - MIGHT
PRESENT A REAL RISK OF CHOKING OFF SUPPLY, BUT SUCH A CASE IS NOT
BEFORE US. 

NEVERTHELESS, A MORATORIUM INSTITUTED ON REMAND IS A HAZARDOUS DEVICE
AT BEST, AND THE PRESENT ONE IS SIMPLY NOT SUPPORTED BY EVIDENCE. 
BECAUSE THE PRODUCERS HAVE NO CHANCE TO REFUSE THE CERTIFICATES AFTER
COMMENCING DELIVERY, THE CEILING MAY COERCE SALES AT UNFAIRLY LOW
PRICES.  YET WHILE THE PRESENT MORATORIUM MUST BE ENDURED LONGER THAN
THE IN-LINE PRICE, AT LEAST IT PERMITS THE PRODUCERS TO CHARGE A
MARKEDLY HIGHER AMOUNT; AND AS THE SAFETY VALVE FOR A PRICE EXPLOSION,
THE MORATORIUM COULD BE UPHELD.  AT THIS POINT, HOWEVER, THE
GOVERNMENT'S ARGUMENT FAILS FOR LACK OF PROOF THAT A PRICE EXPLOSION IS
LIKELY IF INCREASES RISE ABOVE THE MORATORIUM FIGURE.  THE COMMISSION'S
FIGURE WAS NOT CONSIDERED BY ITS HEARING EXAMINER, WHO MADE NO
RECOMMENDATION FOR A MORATORIUM.  THE COMMISSION REPORT ITSELF DEVOTES
NO MORE THAN ONE CONCLUSORY SENTENCE, QUALIFIED BY A FOOTNOTE, TO THE
QUESTION OF WHAT SPECIFIC PRICE RISE WILL TRIGGER INCREASES AT LARGE,
30 F.P.C., AT 298; RATHER THAN AMPLIFYING, THE GOVERNMENT BRIEF MERELY
CONTENDS THAT THE POINT HAS NOT BEEN ADEQUATELY PRESERVED UNDER SEC. 19
- A CONTENTION I DO NOT ACCEPT.  (FN4)  SEVERAL PRODUCERS STATE THAT
THE COMMISSION'S FEAR OF TRIGGERING HAS NOT BEEN REALIZED ALTHOUGH
SALES ARE CURRENTLY BEING MADE BY THEM AT LEVELS ABOVE THE INTENDED
MORATORIUM PRICE. 

                          III. 

WHILE AGREEING THAT THE COMMISSION HAS POWER TO ORDER REFUNDS IN THE
CASE BEFORE US, I BELIEVE THE MEASURE OF REPAYMENT IT SELECTED IS
ILLOGICAL AND HARSH.  ON THE INITIAL QUESTION OF POWER, IT MUST BE
CONCEDED THAT NOTHING IN THE STATUTE PROVIDES FOR REFUNDS WHEN A SALE
HAS BEEN APPROVED WITHOUT QUALIFICATION; BUT APPROVAL IN THE PRESENT
INSTANCES HAD NOT BECOME FINAL FOR WANT OF JUDICIAL REVIEW, AND AN
EQUITABLE POWER TO ORDER REFUNDS MAY FAIRLY BE IMPLIED. 

THE MEASURE OF REFUNDS IS ANOTHER MATTER.  THE COMMISSION HAS NOW
DIRECTED THAT THE PRODUCERS REPAY THE DIFFERENCE BETWEEN THE AMOUNTS
COLLECTED OVER FOUR TO SIX YEARS AND THE FIGURE IT HAS NOW ESTABLISHED
AS THE ORIGINAL IN-LINE PRICE.  (FN5)  SINCE THE IN-LINE PRICE HAS BEEN
FIXED WITHOUT REFERENCE TO COST EVIDENCE AND FALLS BELOW THE OPENING
LEVELS SET IN THE NEGOTIATED CONTRACTS, THE PRODUCERS MAY WELL BE
RECEIVING LESS THAN COST, AS SOME OF THEM EXPRESSLY CLAIM; AND THIS
IMPOSED REVISION DOWNWARD OF PRICES COVERS NOT SIX MONTHS BUT A PERIOD
OF YEARS. 

THE OBVIOUS REFUND FORMULA, IMPLICATED BY THE STATUTE ITSELF HAD
ADOPTED BY THE COURT OF APPEALS, WOULD CALL FOR REPAYMENT OF ALL
AMOUNTS COLLECTED IN EXCESS OF THE "JUST AND REASONABLE" PRICE; THAT
PRICE, MEASURED UNDER SECS. 4 AND 5, NATURALLY TAKES DUE ACCOUNT OF
COSTS.  THE GOVERNMENT RETORTS THAT PRODUCERS HAVE NO "RIGHT" TO SELL
THEIR GAS FOR A "JUST AND REASONABLE" PRICE UNDER THE STATUTE, A
PROPOSITION PERHAPS TRUE IN THE LIMITED SENSE THAT THE PUBLIC
CONVENIENCE AND NECESSITY MIGHT YET EXCLUDE FAIR-PROFIT SALES BY A
UNIQUELY HIGH COST PRODUCER OR IN THE FACE OF A GLUTTED MARKET.  NO
ATTEMPT IS MADE, HOWEVER, TO CLASS THE PRESENT FACTS WITH SUCH
IMAGINABLE SITUATIONS.  NOR IS ADVANCE EXCLUSION FROM THE INTERSTATE
MARKET SO FEARSOME AS AN UNEXPECTED REPRICING OF A COMPLETED SALE
DEPRIVING THE SELLER OF PROFIT OR COSTS. 

ON THE PRESENT FACTS THE GOVERNMENT HAS FAILED TO POINT TO ANY PUBLIC
INTEREST OVERRIDING THE POTENT CLAIMS OF THE PRODUCERS TO A FAIR RETURN
ON THEIR PAST FOUR TO SIX YEARS OF SALES.  ANY TRIGGERING CAUSED BY THE
AMOUNTS PREVIOUSLY CHARGED HAS ALREADY SPENT ITS FORCE AND CANNOT BE
UNDONE.  UNCONVINCINGLY, THE GOVERNMENT IMPLIES THE PRODUCERS MAY BE
COMPARATIVELY WELL OFF WITH THE PRESENT FORMULA BECAUSE IT PROVIDES A
FINAL FIGURE NOW AND THE "JUST AND REASONABLE" PRICE MIGHT PROVE TO BE
BELOW THE IN-LINE PRICE; HOWEVER, INSTANT CERTAINTY AS TO PAST PRICES
IS NO GREAT GAIN SINCE TAXES AND ROYALTIES HAVE ALREADY BEEN PAID, AND
THE CHANCE THAT PRODUCERS MAY GET MORE THAN THEY DESERVE BY FOLLOWING
THE IN-LINE PRICE IS NOT A SUBSTITUTE FOR ASSURING THEM A FAIR RETURN. 
ABOUT THE ONLY CONCRETE ADVANTAGE CITED BY THE GOVERNMENT FOR THE IN
LINE PRICE IS THAT IT SPEEDS REFUNDS TO CONSUMERS.  ASSUMING THAT A
COMPROMISE CANNOT BE REACHED AS IN OTHER CASES, (FN6) ELABORATE COST
DATA SHOULD BECOME AVAILABLE IN THE NEXT YEAR OR TWO WITH THE
COMPLETION OF THE SOUTHERN LOUISIANA AREA RATE PROCEEDING.  CONSUMERS,
WHO ASSUREDLY EXPECTED NO REFUNDS WHEN THEY PAID THEIR GAS BILLS AS
LONG AGO AS SIX YEARS, CERTIANLY DO NOT SUFFER SERIOUSLY IN WAITING A
BIT LONGER FOR REFUNDS THAT INDIVIDUALLY MUST BE MINUTE IN MOST CASES. 

THE INCONGRUITY OF THE COMMISSION'S REFUND FORMULA IS WELL PORTRAYED
BY CONSIDERING WHAT WOULD HAVE HAPPENED IF THE COMMISSION HAD
ORIGINALLY GRANTED THE CERTIFICATES NOW THOUGHT PROPER BY THIS COURT. 
BY ACCEPTING CERTIFICATES CONDITIONING SALES AT THE IN-LINE PRICE, THE
PRODUCERS COULD IMMEDIATELY HAVE FILED FOR INCREASES, SUFFERING AT MOST
A SIX-MONTH DELAY.  EVEN IF THE COMMISSION'S MORATORIUM SURVIVED, THE
CEILING DURING THIS FOUR-TO-SIX-YEAR PERIOD WOULD HAVE BEEN 23.55 CENTS
RATHER THAN THE 18.5-CENT FIGURE NOW IMPOSED.  THUS, EVEN HAD THE
COMMISSION NOT ERRED IN THE FIRST INSTANCE IN FAVOR OF THE PRODUCERS,
THEY STILL COULD HAVE COLLECTED PAYMENTS WELL IN EXCESS OF 18.5 CENTS
SUBJECT ONLY TO THE ULTIMATE FINDING OF A "JUST AND REASONABLE" PRICE
NOW DENIED THEM BY THE COMMISSION. 

IN LINE WITH THE FOREGOING DISCUSSION, I WOULD UPHOLD THE
COMMISSION'S DECISION FIXING AN IN-LINE PRICE, REMAND THE CASE FOR
FURTHER FINDINGS ON THE TRIGGERING PRICE FOR A MORATORIUM IF THE
COMMISSION WISHES TO PURSUE THE POINT, AND SET ASIDE THE REFUND WITH
LEAVE TO ORDER REPAYMENTS BASED ON THE "JUST AND REASONABLE" PRICE. 

FN1  SECTION CITATIONS HEREIN ARE ALL TO THE NATURAL GAS ACT, 52
STAT. 821, AS AMENDED, 15 U.S.C. SECS. 717-717W (1964 ED.). 

FN2  SEE THE MAJORITY'S NOTE 3, ANTE, P. 228. 

FN3  SEE PETITION OF THE FPC FOR CERTIORARI, P. 15, N. 14. 

FN4  THIS PRECISE GROUND OF ATTACK UPON THE MORATORIUM WAS SET FORTH
BY AT LEAST ONE PRODUCER.  SEE ODECO APPLICATION FOR REHEARING BEFORE
THE FPC.  R. 603.  APPLICATIONS OF OTHER PRODUCERS ARGUED INSTEAD THAT
ANY MORATORIUM WAS PLAINLY ILLEGAL UNDER THE FIFTH CIRCUIT'S DECISION
IN HUNT V. FPC, 306 F.2D 334, WHICH HAD NOT THEN BEEN REVERSED BY THIS
COURT.  376 U.S. 515.  SEE PETITION OF PLACID OIL ET AL. FOR REHEARING
BEFORE THE FPC, P. 35.  UNDER THESE CIRCUMSTANCES, SEC. 19 DOES NOT
SEEM TO ME TO PRECLUDE ALLOWING ALL PRODUCERS THE BENEFIT OF THE ERROR
PINPOINTED BY ODECO. 

FN5  DELIVERIES COMMENCED UNDER ALL OR NEARLY ALL THE CONTRACTS IN
1959 AT PRICES EXCEEDING 18.5 CENTS.  THE COMMISSION'S ORDER DIRECTING
THE IN-LINE PRICE, REFUNDS, AND THE MORATORIUM ISSUED FOUR YEARS LATER
IN 1963, AND IT HAS BEEN UNDER JUDICIAL REVIEW FOR THE PAST TWO YEARS. 
THE RECORD DOES NOT CLEARLY INDICATE WHAT RATE INCREASES THE PRODUCERS
MAY ALREADY HAVE FILED WITH THE COMMISSION. 

FN6  ON SEVERAL OCCASIONS, THE COMMISSION HAS APPROVED AGREEMENTS BY
PRODUCERS TO REFUND A FIXED FRACTION OF THE DIFFERENCE BETWEEN THE
AMOUNTS COLLECTED AND THE SETTLEMENT PRICE.  SEE TEXACO INC., 28 F.P.C.
247 (OTHER PRODUCERS SEVERED FROM THE INSTANT CASE); CONTINENTAL OIL
CO., 28 F.P.C. 1090 (ON REMAND FROM CATCO). 
..END :



















WESTERN PAC. R. CO. V. UNITED STATES 382 U.S. 237 


NO. 12.  ARGUED OCTOBER 19, 1965.  - DECIDED DECEMBER 7, 1965.  - 230 F.
SUPP. 852, VACATED AND REMANDED. 


DISCRIMINATING IN THEIR RATES BETWEEN "CONNECTING LINES."  APPELLANT
WESTERN PACIFIC RAILROAD FILED A COMPLAINT WITH THE INTERSTATE COMMERCE
COMMISSION ALLEGING THAT CERTAIN CARRIERS DISCRIMINATED AGAINST IT BY
REFUSING TO ENTER INTO JOINT THROUGH RATES VIA PORTLAND, OREGON, WITH A
MULTI-RAILROAD ROUTE OF WHICH WESTERN PACIFIC IS THE CENTRAL PORTION,
ALTHOUGH THEY MAINTAIN SUCH JOINT THROUGH RATES WITH A COMPETITOR. 
DIVISION 2 OF THE COMMISSION REFUSED TO ACCORD WESTERN PACIFIC
"CONNECTING LINE" STATUS ON THE GROUND THAT IT DID NOT CONNECT
PHYSICALLY WITH THE ALLEGEDLY DISCRIMINATING CARRIERS AND DID NOT
PARTICIPATE IN EXISTING THROUGH ROUTES WITH THEM THROUGH THE POINT OF
DISCRIMINATION.  THE COMMISSION DENIED FURTHER HEARING AND A THREE
JUDGE FEDERAL COURT DISMISSED THE COMPLAINT ON THE BASIS THAT WESTERN
PACIFIC WAS NOT A "CONNECTING LINE."  HELD: 

1.  THE TERM "CONNECTING LINES" DOES NOT REQUIRE A DIRECT PHYSICAL
CONNECTION, BUT REFERS TO ALL LINES MAKING UP A THROUGH ROUTE. 
ATLANTIC COAST LINE R. CO. V. UNITED STATES, 284 U.S. 288, FOLLOWED. 
PP. 242-243. 

2.  TO QUALIFY AS A "CONNECTING LINE" IN THE ABSENCE OF PHYSICAL
CONNECTION, A CARRIER NEED ONLY SHOW THAT IT PARTICIPATES IN AN
ESTABLISHED THROUGH ROUTE, MAKING CONNECTION AT THE POINT OF COMMON
INTERCHANGE, ALL OF WHOSE PARTICIPANTS STAND READY TO COOPERATE IN THE
ARRANGEMENTS NEEDED TO REMOVE THE ALLEGED DISCRIMINATION.  P. 245. 

WESTERN PACIFIC RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

902, 49 U.S.C. SEC. 3(4) (1964 ED.), COMMANDS THAT "ALL CARRIERS
SUBJECT TO THE PROVISIONS OF THIS CHAPTER  ...  SHALL NOT DISCRIMINATE
IN THEIR RATES, FARES, AND CHARGES BETWEEN CONNECTING LINES  ...  ." 
(FN1)  THE MEANING OF THE TERM "CONNECTING LINES" IS THE CRUCIAL
QUESTION IN THIS CONTROVERSY BETWEEN THE WESTERN PACIFIC RAILROAD
COMPANY, ON THE ONE HAND, AND THE UNION PACIFIC RAILROAD COMPANY AND
THE NORTHERN PACIFIC RAILWAY COMPANY, ON THE OTHER.  WESTERN PACIFIC
CONTENDS THAT IT IS A "CONNECTING LINE" IN RELATION TO THESE CARRIERS
AND THAT, THEREFORE, IT IS ENTITLED TO INVOKE AGAINST THEM THE
PROVISIONS OF SEC. 3(4) PROHIBITING DISCRIMINATORY RATES.  THE
INTERSTATE COMMERCE COMMISSION AND THE DISTRICT COURT HELD OTHERWISE. 

WESTERN PACIFIC FILED A COMPLAINT WITH THE COMMISSION, ALLEGING, IN
PART, THAT UNION PACIFIC AND NORTHERN PACIFIC PRACTICE RATE
DISCRIMINATION AGAINST IT.  (FN2)  THE ALLEGED DISCRIMINATION CONSISTS
IN THE REFUSAL OF THESE CARRIERS, EXCEPT WITH RESPECT TO A FEW
COMMODITIES, TO ENTER INTO JOINT THROUGH RATES VIA PORTLAND, OREGON,
WITH THE ROUTE OF WHICH WESTERN PACIFIC IS PART, ALTHOUGH THEY MAINTAIN
A FULL LINE OF SUCH RATES WITH A COMPETITOR, THE SOUTHERN PACIFIC
COMPANY.  THE HEARING EXAMINER FOUND IN FAVOR OF WESTERN PACIFIC, BUT
DIVISION 2 OF THE COMMISSION REVERSED.  THE DIVISION FOUND BOTH THAT
WESTERN PACIFIC COULD NOT INVOKE THE PROVISIONS OF SEC.  3(4) BECAUSE
IT WAS NOT A "CONNECTING LINE," AND THAT, EVEN IF IT WERE, THE EVIDENCE
DID NOT ESTABLISH THE "SIMILARITY OF CIRCUMSTANCES AND CONDITIONS" THAT
WOULD COMPEL RATE TREATMENT EQUAL TO THAT ACCORDED TO SOUTHERN
PACIFIC.  THE DIVISION REFUSED TO ACCORD WESTERN PACIFIC "CONNECTING
LINE" STATUS ON THE GROUND THAT IT NEITHER PHYSICALLY CONNECTS WITH THE
ALLEGEDLY DISCRIMINATING CARRIERS AT THE POINT OF DISCRIMINATION, NOR
PARTICIPATES IN EXISTING THROUGH ROUTES WITH THEM THROUGH THAT POINT. 
WESTERN PACIFIC R. CO. V. CAMAS PRAIRIE R. CO., 316 I.C.C.  795.  WHEN
THE FULL COMMISSION DENIED FURTHER HEARING, WESTERN PACIFIC BROUGHT
THIS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA TO SET ASIDE THE COMMISSION'S ORDER.  THE THREE
JUDGE COURT DISMISSED THE COMPLAINT SOLELY ON THE GROUND THAT WESTERN
PACIFIC WAS NOT A "CONNECTING LINE."  WESTERN PACIFIC R. CO. V. UNITED
STATES, 230 F. SUPP. 852.  IT AGREED WITH THE COMMISSION'S LIMITED
DEFINITION OF THE TERM AND SAID, "ANY FURTHER LIBERALIZATION OF THE
PRESENT DEFINITION WILL HAVE TO COME FROM THE SUPREME COURT."  ID., AT
855.  WE NOTED PROBABLE JURISDICTION.  379 U.S. 956. 

ANALYSIS OF "CONNECTING LINE" STATUS IN THIS CASE IS CLOSELY TIED TO
THE GEOGRAPHICAL, STRUCTURAL, AND ECONOMIC RELATIONSHIPS AMONG THE
RAILROADS INVOLVED.  UNION PACIFIC, NORTHERN PACIFIC AND THEIR SHORT
LINE CONNECTIONS PROVIDE EXCLUSIVE RAIL SERVICE BETWEEN MANY POINTS IN
THE PACIFIC NORTHWEST AND PORTLAND, OREGON.  FROM PORTLAND, THE TWO
COMPETITIVE ROUTES IN QUESTION DESCEND, AT TIMES PARALLEL, AT TIMES
INTERTWINED, TO SOUTHERN CALIFORNIA.  THE ROUTE CLOSEST TO THE SEACOAST
CONSISTS LARGELY OF SOUTHERN PACIFIC.  TO THE EAST OF THIS ROUTE LIES
THE SO-CALLED BIEBER ROUTE WHOSE COMPLETION IN 1931 WAS AUTHORIZED BY
THE COMMISSION TO PROVIDE COMPETITION WITH SOUTHERN PACIFIC.  (FN3)
THE BIEBER ROUTE IS COMPOSED OF THE END-TO-END CONNECTIONS OF THREE
DIFFERENT COMPANIES: THE GREAT NORTHERN RAILWAY FROM PORTLAND TO
BIEBER, CALIFORNIA; THE WESTERN PACIFIC FROM BIEBER TO STOCKTON; AND
THE ATCHISON, TOPEKA & SANTA FE FROM STOCKTON TO SOUTHERN CALIFORNIA. 
THUS THE BIEBER ROUTE AND SOUTHERN PACIFIC BOTH CONNECT WITH THE
ALLEGEDLY DISCRIMINATING CARRIERS AT PORTLAND WHERE FACILITIES FOR THE
INTERCHANGE OF TRAFFIC EXIST. 

THE BIEBER ROUTE CARRIERS PRESENTLY ENJOY JOINT THROUGH RATES AMONG
THEMSELVES.  MOREOVER, THE OTHER TWO PARTICIPANTS IN THAT ROUTE HAVE
EXPRESSED WILLINGNESS TO JOIN WITH WESTERN PACIFIC IN THE JOINT RATES
IT SEEKS WITH UNION PACIFIC AND NORTHERN PACIFIC.  UNION PACIFIC AND
NORTHERN PACIFIC, FOR OVER 50 YEARS, HAVE MAINTAINED THROUGH ROUTES AND
A FULL LINE OF JOINT RATES WITH SOUTHERN PACIFIC VIA PORTLAND.  THEY
HAVE REFUSED, HOWEVER, EXCEPT FOR A FEW COMMODITIES, TO OFFER THROUGH
ROUTES AND JOINT RATES ON TRAFFIC MOVING ON THE BIEBER ROUTE THROUGH
PORTLAND.  THE JOINT RATES ESTABLISHED WITH SOUTHERN PACIFIC ARE LOWER
THAN THE COMBINATION OF LOCAL RATES THAT WOULD OTHERWISE APPLY.  SINCE
THE BIEBER ROUTE CARRIERS CAN OFFER JOINT RATES ONLY WITH RESPECT TO A
FEW COMMODITIES, THEY CANNOT MATCH THE LOWER RATES OFFERED BY SOUTHERN
PACIFIC TO SHIPPERS OF MOST COMMODITIES BETWEEN POINTS IN CALIFORNIA
AND POINTS IN THE PACIFIC NORTHWEST EXCLUSIVELY SERVED BY UNION PACIFIC
AND NORTHERN PACIFIC VIA PORTLAND. 

THE COMMISSION AND THE DISTRICT COURT HELD, HOWEVER, THAT EVEN UNDER
THESE CIRCUMSTANCES, WESTERN PACIFIC IS NOT A "CONNECTING LINE"
ELIGIBLE TO COMPLAIN OF THE ALLEGED DISCRIMINATION.  IN ARGUMENT HERE
THE COMMISSION AND THE APPELLEE RAILROADS CONTEND THAT TO QUALIFY FOR
THAT STATUS WESTERN PACIFIC MUST SHOW MORE THAN THAT IT PARTICIPATES IN
AN ESTABLISHED THROUGH ROUTE THAT CONNECTS WITH UNION PACIFIC AND
NORTHERN PACIFIC, AND THAT ALL THE PARTICIPANTS IN THE ROUTE STAND
WILLING TO COOPERATE WITH THESE CARRIERS IN ESTABLISHING JOINT THROUGH
RATES.  (FN4)  WE ARE URGED TO HOLD THAT TO QUALIFY UNDER SEC. 3(4) AS
A COMPLAINANT "CONNECTING LINE" A RAILROAD MUST EITHER ITSELF MAKE A
DIRECT CONNECTION WITH THE DISCRIMINATING CARRIER, OR BE PART OF A
THROUGH ROUTE THAT ALREADY INCLUDES THE CARRIER.  WE CANNOT ACCEPT SUCH
A CONSTRUCTION OF THE STATUTE. 

THE LITERAL MEANING OF THE STATUTE DOES NOT REQUIRE THAT
CONSTRUCTION.  TO BE SURE, THE TERM, "CONNECTING LINES" SUGGESTS THE
REQUIREMENT OF AN ACTUAL PHYSICAL CONNECTION BETWEEN THE COMPLAINANT
AND THE DISCRIMINATING CARRIER.  THE TERM "LINE," HOWEVER, ADMITS OF
MORE THAN A SINGLE MEANING LIMITED TO THE TRACK OWNED EXCLUSIVELY BY
ONE RAILROAD COMPANY.  IT MAY ALSO BE INTERPRETED REASONABLY TO INCLUDE
A FUNCTIONAL RAILROAD UNIT SUCH AS THE BIEBER THROUGH ROUTE INVOLVED
HERE.  MOREOVER, ALL PARTIES IN THIS LITIGATION RECOGNIZE THAT IN
ATLANTIC COAST LINE R. CO. V. UNITED STATES, 284 U.S. 288, THIS COURT
REJECTED THE CONTENTION THAT "CONNECTING LINE" IS A TERM LIMITED TO THE
MEANING THAT THE STATUTORY LANGUAGE MIGHT INITIALLY SUGGEST.  MR.
JUSTICE BRANDEIS, SPEAKING FOR A UNANIMOUS COURT, WROTE, "THERE IS NO
WARRANT FOR LIMITING THE MEANING OF 'CONNECTING LINES' TO THOSE HAVING
A DIRECT PHYSICAL CONNECTION  ...  .  THE TERM IS COMMONLY USED AS
REFERRING TO ALL THE LINES MAKING UP A THROUGH ROUTE."  ID., AT 293. 

THERE ALSO IS NO WARRANT FOR LIMITING THE MEANING OF "CONNECTING
LINES" TO THE LINES MAKING UP A THROUGH ROUTE THAT ALREADY INCLUDES THE
DISCRIMINATING CARRIER.  WE HAVE BEEN REFERRED TO NO PREVIOUS JUDICIAL
OR ADMINISTRATIVE DECISIONS COMPELLING THAT CONCLUSION.  THE ATLANTIC
COAST LINE CASE, SUPRA, IMPOSES NO SUCH LIMITATION.  IT ESTABLISHED
THAT THE TERM "CONNECTING LINES" EXTENDS BEYOND PHYSICAL CONNECTION TO
ENCOMPASS LINES PARTICIPATING IN A THROUGH ROUTE, BUT IT DOES NOT EVEN
HINT OF ANY LIMITATION ON THE NATURE OF THE THROUGH ROUTE, MUCH LESS
HOLD THAT THE THROUGH ROUTE MUST ALREADY INCLUDE THE DISCRIMINATING
CARRIER.  (FN5)  OUR SUBSEQUENT DEFINITION OF "THROUGH ROUTE" IN
THOMPSON V. UNITED STATES, 343 U.S. 549, ADDS NO MORE TO AN ANALYSIS OF
"CONNECTING LINE" UNDER SEC. 3(4).  IN THAT CASE, WHICH AROSE UNDER
SECS. 15(3) AND 15(4) OF THE ACT, WE HELD THAT THE COMMISSION HAD
IMPROPERLY APPLIED THE TEST OF THE EXISTENCE OF A THROUGH ROUTE:  "
...  WHETHER THE PARTICIPATING CARRIERS HOLD THEMSELVES OUT AS OFFERING
THROUGH TRANSPORTATION SERVICE."  343 U.S., AT 557.  SECTION 3(4) DOES
NOT USE THE TERM "THROUGH ROUTE."  BUT EVEN IF, AFTER ATLANTIC COAST
LINE, A CARRIER MAY QUALIFY AS A "CONNECTING LINE" IF IT IS ONE OF THE
"LINES MAKING UP A THROUGH ROUTE," 284 U.S., AT 293, THE THOMPSON TEST
OFFERS NO SOLUTION TO THE PROBLEM PRESENTED HERE.  IT SIMPLY DOES NOT
SPEAK TO THE QUESTION WHETHER THE DISCRIMINATING CARRIER MUST BE ONE OF
THE PARTICIPATING CARRIERS OFFERING THROUGH SERVICE IN CONJUNCTION WITH
THE CARRIER SEEKING "CONNECTING LINE" STATUS. 

THE REASON THE ISSUE PRESENTED IN THIS CASE HAS NOT BEEN DECIDED
BEFORE NOW (FN6) MAY BE THAT DISCRIMINATION OF THE SORT COMPLAINED OF
HERE IS UNCOMMON.  IN MOST INSTANCES IT IS TO THE ADVANTAGE OF
RAILROADS SUCH AS UNION PACIFIC AND NORTHERN PACIFIC TO ENCOURAGE THE
MOVEMENT OF TRAFFIC OVER THEIR LINES FROM AS MANY SOURCES AS POSSIBLE. 
(FN7)  MOREOVER, WHEN SUCH DISCRIMINATION DOES OCCUR THE RAILROAD
CONNECTING DIRECTLY WITH THE DISCRIMINATING CARRIER IS LIKELY TO TAKE
THE LEAD AS COMPLAINANT. 

IN THE ABSENCE OF ANY SETTLED CONSTRUCTION OF SEC. 3(4), THEN, ITS
MANIFEST PURPOSE TO DEPRIVE RAILROADS OF DISCRETION TO APPORTION
ECONOMIC ADVANTAGE AMONG COMPETITORS AT A COMMON INTERCHANGE MUST BE
THE BASIC GUIDE TO DECISION.  JUST SUCH DISCRETION WOULD BE CONFERRED
UPON RAILROADS IN A POSITION TO DISCRIMINATE IF WE WERE TO HOLD THAT
THEIR DECISIONS NOT TO ENTER THROUGH ROUTE RELATIONS WITH CONNECTING
THROUGH ROUTES COULD BAR NONADJACENT PARTICIPANTS IN SUCH THROUGH
ROUTES FROM ELIGIBILITY TO COMPLAIN.  INDEED SUCH A HOLDING WOULD
RESULT IN AN ANOMALOUS SET OF CIRCUMSTANCES CLEARLY ILLUSTRATED IN THE
PRESENT CONTEXT.  NO ONE DOUBTS THAT SOUTHERN PACIFIC, BY VIRTUE OF ITS
DIRECT PHYSICAL CONNECTION, WOULD BE ELIGIBLE TO COMPLAIN OF RATE
DISCRIMINATION IF IT WERE PRACTICED IN FAVOR OF THE BIEBER ROUTE.  IT
IS ALSO UNDISPUTED THAT GREAT NORTHERN WOULD BE ELIGIBLE TO COMPLAIN OF
THE PRESENT DISCRIMINATION, NOT MERELY AS IT AFFECTS ITS SEGMENT OF THE
BIEBER ROUTE, BUT ON BEHALF OF THE ROUTE AS A WHOLE.  MOREOVER, IT IS
CLEAR THAT IF UNION PACIFIC AND NORTHERN PACIFIC HAD ENTERED A THROUGH
ROUTE RELATIONSHIP WITH THE BIEBER ROUTE AND THEN HAD DECIDED TO
ABANDON IT, OR TO SET RATES SOMEWHAT HIGHER THAN THOSE SET FOR SOUTHERN
PACIFIC, ANY PARTICIPANT IN THE BIEBER ROUTE COULD COMPALIN OF THAT
DISCRIMINATION.  WE CANNOT THEREFORE CONSTRUE SEC. 3(4) TO BAR
PARTICIPANTS FROM ELIGIBILITY TO COMPLAIN SOLELY BECAUSE THEY HAVE BEEN
PUT TO AN EVEN GREATER COMPETITIVE DISADVANTAGE BY THE REFUSAL OF THE
ALLEGEDLY DISCRIMINATING CARRIERS TO ENTER A THROUGH ROUTE RELATIONSHIP
WITH THEM COMPARABLE TO THE ONE ESTABLISHED WITH SOUTHERN PACIFIC. 
HENCE, WE HOLD THAT TO QUALIFY AS A "CONNECTING LINE," IN THE ABSENCE
OF PHYSICAL CONNECTION, A CARRIER NEED ONLY SHOW THAT IT PARTICIPATES
IN AN ESTABLISHED THROUGH ROUTE, MAKING CONNECTION AT THE POINT OF
COMMON INTERCHANGE, ALL OF WHOSE PARTICIPANTS STAND WILLING TO
COOPERATE IN THE ARRANGEMENTS NECESSARY TO ELIMINATE THE ALLEGED
DISCRIMINATION. 

SUCH A CONSTRUCTION OF "CONNECTING LINE" DOES NOT INTERFERE WITH THE
FUNCTION OF THE COMMISSION UNDER SEC. 15(3) OF THE ACT, 54 STAT. 911,
49 U.S.C. SEC. 15(3) (1964 ED.), TO REQUIRE THE ESTABLISHMENT OF
THROUGH ROUTES AND JOINT RATES "IN THE PUBLIC INTEREST."  (FN8)
INVOLVING DISCRIMINATION AT A COMMON INTERCHANGE.  MOREOVER, THE REMEDY
IN SEC. 3(4) SITUATIONS NEED NOT ENTAIL THE ESTABLISHMENT OF THROUGH
ROUTES, JOINT RATES, OR INDEED ANY PARTICULAR FORM OF RELIEF.  ALL THAT
IS REQUIRED IS THE ELIMINATION OF DISCRIMINATORY TREATMENT.  SEE
CHICAGO, INDIANAPOLIS & LOUISVILLE R. CO. V. UNITED STATES, 270 U.S.
287, 292-293; UNITED STATES V. ILLINOIS CENTRAL R. CO., 263 U.S. 515,
520-521.  FINALLY, OUR HOLDING DOES NO MORE THAN TO DEFINE THE
CHARACTERISTICS OF A CARRIER ELIGIBLE TO COMPLAIN.  RELIEF IS WARRANTED
ONLY IF IT ALSO APPEARS THAT DIFFERENTIAL TREATMENT IS NOT JUSTIFIED BY
DIFFERENCES IN OPERATING CONDITIONS THAT SUBSTANTIALLY AFFECT THE
ALLEGEDLY DISCRIMINATING CARRIER.  SEE UNITED STATES V. ILLINOIS
CENTRAL R. CO., SUPRA, AT P. 521; ATCHISON, TOPEKA & SANTA FE R. CO. V.
UNITED STATES, 218 F. SUPP. 359, 369. 

IN THE PRESENT CASE, HAVING FOUND THAT WESTERN PACIFIC WAS NOT
ELIGIBLE TO COMPLAIN, THE DISTRICT COURT DID NOT REACH THE QUESTION
WHETHER IT WAS ENTITLED TO RELIEF.  WE THEREFORE VACATE THE JUDGMENT
AND REMAND THIS CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SECTION 3(4) PROVIDES IN FULL: 

"ALL CARRIERS SUBJECT TO THE PROVISIONS OF THIS CHAPTER SHALL,
ACCORDING TO THEIR RESPECTIVE POWERS, AFFORD ALL REASONABLE, PROPER,
AND EQUAL FACILITIES FOR THE INTERCHANGE OF TRAFFIC BETWEEN THEIR
RESPECTIVE LINES AND CONNECTING LINES, AND FOR THE RECEIVING,
FORWARDING, AND DELIVERING OF PASSENGERS OR PROPERTY TO AND FROM
CONNECTING LINES; AND SHALL NOT DISCRIMINATE IN THEIR RATES, FARES, AND
CHARGES BETWEEN CONNECTING LINES, OR UNDULY PREJUDICE ANY CONNECTING
LINE IN THE DISTRIBUTION OF TRAFFIC THAT IS NOT SPECIFICALLY ROUTED BY
THE SHIPPER.  AS USED IN THIS PARAGRAPH THE TERM 'CONNECTING LINE'
MEANS THE CONNECTING LINE OF ANY CARRIER SUBJECT TO THE PROVISIONS OF
THIS CHAPTER OR ANY COMMON CARRIER BY WATER SUBJECT TO CHAPTER 12 OF
THIS TITLE."    FN2  WESTERN PACIFIC AND ITS SUBSIDIARIES NAMED AS
DEFENDANTS:  THE NORTHERN PACIFIC RAILWAY COMPANY, THE UNION PACIFIC
RAILROAD COMPANY, AND CERTAIN OF THEIR SHORT-LINE CONNECTIONS.  THESE
RAILROADS DENIED THE ALLEGATIONS OF THE COMPLAINT.  THE SOUTHERN
PACIFIC COMPANY INTERVENED IN OPPOSITION TO THE COMPLAINT.  THE
COMPLAINT ALSO NAMED AS DEFENDANTS:  THE ATCHISON, TOPEKA & SANTA FE
RAILWAY COMPANY, THE GREAT NORTHERN RAILWAY COMPANY, AND CERTAIN
SHORTLINE CONNECTIONS.  THESE RAILROADS ANSWERED EXPRESSING WILLINGNESS
TO JOIN IN THE RELIEF SOUGHT BY WESTERN PACIFIC.    THE COMPLAINT ALSO
ALLEGED VIOLATION OF SEC. 1(4) OF THE ACT WHICH REQUIRES, IN PART, THAT
RAILROADS ESTABLISH "REASONABLE THROUGH ROUTES" WITH OTHER CARRIERS AND
"JUST AND REASONABLE RATES, FARES, CHARGES, AND CLASSIFICATIONS
APPLICABLE THERETO  ...  ."  WHEN SUCH ROUTES ARE NOT ESTABLISHED
VOLUNTARILY, THE COMMISSION HAS AUTHORITY UNDER SEC. 15(3), TO
PRESCRIBE THEM "IN THE PUBLIC INTEREST."  THIS AUTHORITY IS SUBJECT TO
THE SHORT-HAUL LIMITATION EMBODIED IN SEC. 15(4).  ALTHOUGH THE
COMPLAINANTS INDICATED A WILLINGNESS TO RELY SOLELY ON THE ALLEGED
VIOLATION OF SEC. 3(4), THE COMMISSION FOUND AGAINST THEM ON THE SEC.
1(4) ALLEGATION AS WELL.  NO QUESTION UNDER SEC. 1(4) IS PRESENTED
HERE. 

FN3  GREAT NORTHERN R. CO. CONSTRUCTION, 166 I.C.C. 3, 39; 170 I.C.C.
399. 

FN4  PURSUANT TO 28 U.S.C. SEC. 2322 (1964 ED.), THE UNITED STATES
WAS NAMED AS DEFENDANT IN THE DISTRICT COURT.  IT DID NOT, HOWEVER,
JOIN WITH THE COMMISSION IN DEFENSE OF THE COMMISSION'S ORDER, AND IT
SUPPORTS WESTERN PACIFIC IN THIS COURT. 

FN5  IN THE ATLANTIC COAST LINE CASE, CERTAIN RAILROADS LEASING THE
CAROLINA, CLINCHFIELD & OHIO RAILWAY WITH THE APPROVAL OF THE
COMMISSION FILED RESTRICTIVE SCHEDULES DESIGNED ULTIMATELY TO EXCLUDE
AN AS YET INCOMPLETE EXTENSION OF THE GEORGIA & FLORIDA RAILROAD FROM
PARTICIPATING, WHEN COMPLETED, IN JOINT RATES OVER THE CLINCHFIELD. 
THE COMMISSION ORDERED THE SCHEDULES CANCELED ON THE GROUND THAT THEY
VIOLATED TERMS IN THE LEASE, ACCEPTED BY THE LESSEES, ON WHICH THE
COMMISSION HAD CONDITIONED ITS APPROVAL.  ONE CONDITION REQUIRED THE
LESSEES TO PERMIT THE CLINCHFIELD TO BE USED AS A LINK FOR THROUGH
TRAFFIC WITH "SUCH OTHER CARRIERS, NOW CONNECTING, OR WHICH MAY
HEREAFTER CONNECT, WITH IT  ...  ."  284 U.S., AT 292, NOTE 3.  THE
EXTENSION OF THE GEORGIA & FLORIDA MADE CONNECTION WITH THE CLINCHFIELD
ONLY VIA THE RAILS OF AN INTERMEDIATE CARRIER.  THIS COURT SUSTAINED
THE COMMISSION'S ORDER, HOWEVER, AND HELD THAT THE GEORGIA & FLORIDA
WAS A CARRIER CONNECTING WITH THE CLINCHFIELD BECAUSE IT WAS ONE OF THE
"LINES MAKING UP A THROUGH ROUTE."  284 U.S., AT 293.  EVEN ASSUMING
THAT THE THROUGH ROUTE REFERRED TO WAS NOT ONE LIMITED TO THE
COMPLAINING CARRIER AND THE INTERMEDIATE CARRIER, IT IS CLEAR THAT THIS
COURT WAS NOT FACED WITH THE QUESTION WHETHER THE COMPLAINING RAILROAD
WOULD BE REGARDED AS A "CONNECTING LINE" IF THE THROUGH ROUTE
ESTABLISHING THE CONNECTION DID NOT ALSO ENCOMPASS THE CLINCHFIELD.  IN
SHORT, ATLANTIC COAST LINE DID NOT PRESENT THE ISSUE SQUARELY BEFORE US
NOW. 

FN6  ALTHOUGH WE DO NOT REGARD CHICAGO, INDIANAPOLIS & LOUISVILLE R.
CO. V. UNITED STATES, 270 U.S. 287, AS DISPOSITIVE OF THE QUESTION
PRESENTED, THAT CASE, ON ITS FACTS, SUPPORTS THE CONCLUSION WE REACH. 

FN7  IN RESPONSE TO AN INQUIRY AT ORAL ARGUMENT, THE PARTIES HAVE
SUBMITTED MEMORANDA AGREEING THAT THROUGH ROUTES AND JOINT RATES ARE
ORDINARILY ESTABLISHED BY VOLUNTARY AGREEMENT, AND THAT A RAILROAD
USUALLY INTERCHANGES TRAFFIC ON A COMPARABLE BASIS WITH COMPETING
RAILROADS AT A COMMON INTERCHANGE.  SEE ALSO THOMPSON V. UNITED STATES,
343 U.S. 549, 554. 

FN8  SECTION 15(3) PROVIDES IN RELEVANT PART: 

"THE COMMISSION MAY, AND IT SHALL WHENEVER DEEMED BY IT TO BE
NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST, AFTER FULL HEARING UPON
COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, ESTABLISH
THROUGH ROUTES, JOINT CLASSIFICATIONS, AND JOINT RATES, FARES, OR
CHARGES, APPLICABLE TO THE TRANSPORTATION OF PASSENGERS OR PROPERTY BY
CARRIERS SUBJECT TO THIS CHAPTER  ...  OR THE MAXIMA OR MINIMA, OR
MAXIMA AND MINIMA, TO BE CHARGED, AND THE DIVISIONS OF SUCH RATES,
FARES, OR CHARGES AS HEREINAFTER PROVIDED, AND THE TERMS AND CONDITIONS
UNDER WHICH SUCH THROUGH ROUTES SHALL BE OPERATED." 

MR. JUSTICE DOUGLAS, DISSENTING. 

UNDER THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 1 ET SEQ., AS I
READ IT, THERE ARE TWO WAYS OF OBTAINING "THROUGH ROUTES."  ONE IS TO
QUALIFY AS A "CONNECTING LINE" WITHIN THE MEANING OF SEC. 3(4) WHERE A
SIMILARLY SITUATED COMPETING CARRIER HAS BEEN GIVEN A THROUGH ROUTE. 
(FN1)  THE OTHER IS TO APPLY FOR A RATE FOR A "THROUGH ROUTE" UNDER
SEC. 1(4).  (FN2)  IN THE EVENT THAT A CARRIER REFUSES TO ESTABLISH A
"THROUGH ROUTE," THE COMMISSION MAY "UPON COMPLAINT OR UPON ITS OWN
INITIATIVE WITHOUT COMPLAINT," ESTABLISH A "THROUGH ROUTE" WHEN "DEEMED
BY IT TO BE NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST."  SEC.
15(3).  (FN3) 

IN THIS CASE APPELLANTS SOUGHT A "THROUGH ROUTE" WITH CERTAIN
APPELLEE RAILROADS ON THE SAME BASIS AS THE JOINT RATES THOSE RAILROADS
HAD ESTABLISHED WITH THE SOUTHERN PACIFIC.  IN AN ADVERSARY PROCEEDING
THE COMMISSION DENIED THE ESTABLISHMENT OF A "THROUGH ROUTE" UNDER SEC.
1(4) SAYING: 

"  ...  THE SHIPPERS URGE THAT THE RATES AND ROUTES SOUGHT WOULD GIVE
THEM MORE FREEDOM OF CHOICE IN THE MOVEMENT OF THEIR GOODS, WOULD
IMPROVE TRANSPORTATION SERVICE, TIME IN TRANSIT, AND CAR SUPPLY, AND
MAKE AVAILABLE ADDITIONAL TRANSIT PRIVILEGES.  NORTHING OF RECORD,
HOWEVER, INDICATES THAT THE EXISTING THROUGH ROUTES AND JOINT RATES ARE
INADEQUATE TO MEET THE NEEDS OF THE SHIPPING PUBLIC.  IN FACT THE
FAILURE OF THE SHIPPER WITNESSES TO INITIATE IN THE LAST 31 YEARS A
DETERMINED CAMPAIGN TO PERSUADE THE DEFENDANTS OF THE NECESSITY OF
ESTABLISHING THROUGH ROUTES BETWEEN POINTS ON THE COMPLAINANTS' LINES
IN CALIFORNIA AND POINTS ON THE DEFENDANTS' LINES IN THE NORTHWEST, IS
AT LEAST SOME INDICATION OF THE ADEQUACY OF THE EXISTING ROUTES.  THE
EXPRESSION 'IN THE PUBLIC INTEREST' MEANS MORE THAN A MERE DESIRE ON
THE PART OF SHIPPERS FOR SOMETHING THAT WOULD MERELY BE CONVENIENT OR
DESIRABLE FOR THEM.  THIS DESIRE MUST BE WEIGHED AGAINST THE EFFECT ON
OTHER CARRIERS AND THE GENERAL PUBLIC.  ON THE BASIS OF THIS RECORD, WE
CANNOT FIND THAT THE PUBLIC INTEREST WOULD BE SERVED BY REQUIRING THE
ESTABLISHMENT OF JOINT RATES AND THROUGH ROUTES WHICH ARE SUBSTANTIALLY
SLOWER AND COSTLIER THAN THE PRESENT ROUTES."  316 I.C.C. 795, 810
811. 

WHAT THE COURT DOES TODAY IS TO LET SEC. 3(4) SWALLOW SEC. 1(4) BY
LETTING ANY SEGMENT OF A MULTI-CARRIER THROUGH ROUTE BECOME A
"CONNECTING LINE."  (FN4)  FOR THEN THE BAN IN SEC. 3(4) ON
DISCRIMINATORY RATES IN EFFECT FORCES THE ESTABLISHMENT OF "THROUGH
ROUTES" WITH "JUST AND REASONABLE RATES" AS REQUIRED BY SEC. 1(4),
WITHOUT SATISFYING ANY OF THE CONDITIONS OF SEC. 1(4) AND OF SEC.
15(3).  INDEED AFTER TODAY, THE WHOLE PROTECTIVE SCHEME OF SEC. 15(3)
WHICH MAKES THE COMMISSION THE GUARDIAN OF "THROUGH ROUTES" (SEE ST.
LOUIS R. CO. V. UNITED STATES, 245 U.S. 136, 142-143) BREAKS DOWN. 

IN ADDITION TO THE CONDITIONS SET FORTH IN SEC. 15(3) THE
COMMISSION'S POWER TO COMPEL THE ESTABLISHMENT OF THROUGH ROUTES IS
LIMITED BY SEC. 15(4), WHICH PREVENTS THE COMMISSION FROM ESTABLISHING
ANY THROUGH ROUTE REQUIRING A CARRIER TO "SHORT HAUL" ITSELF EXCEPT
WHERE PARTICULAR CIRCUMSTANCES (ENUMERATED IN SEC. 15(4)) ARE FOUND TO
EXIST.  SEE THOMPSON V. UNITED STATES, 343 U.S. 549, 552-556; DENVER &
R.G.W.R. CO. V. UNION P.R. CO., 351 U.S. 321, 325 ET SEQ.; CHICAGO, M.,
ST. P.&P.R. CO. V. UNITED STATES, 366 U.S. 745.  CAN A CARRIER AFTER
TODAY'S DECISION BE COMPELLED TO "SHORT HAUL" ITSELF WHERE AN INTERNAL
SEGMENT OF A MULTI-CARRIER THROUGH ROUTE INVOKES SEC. 3(4)?   (FN5) 

ABUT, WOULD, OF COURSE, LIFT SOME CASES FROM SEC. 1(4) AND FROM SEC.
15.  BUT THOSE ARE THE EXCEPTIONS, RELATIVELY FEW IN NUMBER.   THE
COURT MULTIPLIES THOSE ALMOST WITHOUT AND WHEN IT HOLDS THAT ANY
INTERIOR SEGMENT OF AN ESTABLISHED MULTI-CARRIER THROUGH ROUTE IS A
"CONNECTING LINE" WITHIN THE MEANING OF SEC.  3(4). 

TODAY'S DECISION UPROOTS THE ESTABLISHED CONCEPT OF "THROUGH
ROUTES."  AS WE STATED IN THOMPSON V. UNITED STATES, 343 U.S. 549, 557
(QUOTING FROM THE COMMISSION'S 21ST ANNUAL REPORT TO CONGRESS):

"A THROUGH ROUTE IS A CONTINUOUS LINE OF RAILWAY FORMED BY AN
ARRANGEMENT, EXPRESS OR IMPLIED, BETWEEN CONNECTING CARRIERS  ...  .
EXISTENCE OF A THROUGH ROUTE IS TO BE DETERMINED BY THE INCIDENTS AND
CIRCUMSTANCES OF THE SHIPMENT, SUCH AS THE BILLING, THE TRANSFER FROM
ONE CARRIER TO ANOTHER, THE COLLECTION AND DIVISION OF TRANSPORTATION
CHARGES, OR THE USE OF A PROPORTIONAL RATE TO OR FROM JUNCTION POINTS
OR BASING POINTS.  THESE INCIDENTS NAMED ARE NOT TO BE REGARDED AS
EXCLUSIVE OF OTHERS WHICH MAY TEND TO ESTABLISH A CARRIER'S COURSE OF
BUSINESS WITH RESPECT TO THROUGH SHIPMENTS." 

THEN WE ADDED: 

"IN SHORT, THE TEST OF THE EXISTENCE OF A 'THROUGH ROUTE' IS WHETHER
THE PARTICIPATING CARRIERS HOLD THEMSELVES OUT AS OFFERING THROUGH
TRANSPORTATION SERVICE.  THROUGH CARRIAGE IMPLIES THE EXISTENCE OF A
THROUGH ROUTE WHATEVER THE FORM OF THE RATES CHARGED FOR THE THROUGH
SERVICE."  IBID. 

AND SEE DENVER &R.G.W.R. CO. V. UNION P.R. CO., 351 U.S. 321, 327,
330. 

HERE THERE HAS BEEN NO "HOLDING OUT" BY THE PARTICIPATING CARRIERS
(EITHER CONSENSUALLY OR AS A RESULT OF ANY COMMISSION ACTION) THAT
OFFERS THIS INTERIOR SEGMENT OF THIS MULTI-CARRIER ROUTE TO BECOME A
PART OF ANY "THROUGH ROUTE."  IF WE ARE TO ALLOW SEC. 1(4) AND SECS.
3(4) AND 15(3) TO EXIST IN HARMONY, WE MUST ADHERE TO THAT REQUIREMENT,
RESTRICTING "CONNECTING LINE" TO THOSE LINES THAT HAVE A DIRECT
PHYSICAL CONNECTION WITH THE ALLEGEDLY DISCRIMINATING CARRIER. 

ATLANTIC COAST LINE R. CO. V. UNITED STATES, 284 U.S. 288, IS NOT
OPPOSED.  WHILE THE LINE IN QUESTION WAS ONLY A SEGMENT IN A MULTI
CARRIER SYSTEM, IT HAD "THROUGH ROUTES" WITH THE OTHER CARRIERS IN
CONTROVERSY.  ID., AT 292.  THE WORDS "CONNECTING LINES" (FN6) WERE
THEREFORE USED TO INCLUDE "ALL THE LINES MAKING UP A THROUGH ROUTE." 
ID., AT 293.  BUT THERE IS NO "THROUGH ROUTE" HERE, THE DEFENDANTS NOT
HAVING AGREED TO ONE AND THE COMMISSION HAVING EXPRESSLY DISALLOWED ONE
PURSUANT TO ITS POWER UNDER SEC. 15(3). 

FN1  SECTION 3(4) PROVIDES: 

"ALL CARRIERS SUBJECT TO THE PROVISIONS OF THIS CHAPTER SHALL,
ACCORDING TO THEIR RESPECTIVE POWERS, AFFORD ALL REASONABLE, PROPER,
AND EQUAL FACILITIES FOR THE INTERCHANGE OF TRAFFIC BETWEEN THEIR
RESPECTIVE LINES AND CONNECTING LINES, AND FOR THE RECEIVING,
FORWARDING, AND DELIVERING OF PASSENGERS OR PROPERTY TO AND FROM
CONNECTING LINES; AND SHALL NOT DISCRIMINATE IN THEIR RATES, FARES, AND
CHARGES BETWEEN CONNECTING LINES, OR UNDULY PREJUDICE ANY CONNECTING
LINE IN THE DISTRIBUTION OF TRAFFIC THAT IS NOT SPECIFICALLY ROUTED BY
THE SHIPPER.  AS USED IN THIS PARAGRAPH THE TERM 'CONNECTING LINE'
MEANS THE CONNECTING LINE OF ANY CARRIER SUBJECT TO THE PROVISIONS OF
THIS CHAPTER OR ANY COMMON CARRIER BY WATER SUBJECT TO CHAPTER 12 OF
THIS TITLE." 

THE DISCRIMINATORY REFUSAL TO ENTER INTO THROUGH ROUTES HAS BEEN HELD
TO CONSTITUTE A VIOLATION OF SEC. 3(4).  SEE DIXIE CARRIERS, INC. V.
UNITED STATES, 351 U.S. 56. 

FN2  SECTION 1(4) PROVIDES IN PART: 

"IT SHALL BE THE DUTY OF EVERY COMMON CARRIER SUBJECT TO THIS CHAPTER
TO PROVIDE AND FURNISH TRANSPORTATION UPON REASONABLE REQUEST THEREFOR,
AND TO ESTABLISH REASONABLE THROUGH ROUTES WITH OTHER SUCH CARRIERS,
AND JUST AND REASONABLE RATES, FARES, CHARGES, AND CLASSIFICATIONS
APPLICABLE THERETO; ...  " 

FN3  SECTION 15(3) PROVIDES IN PART: 

"THE COMMISSION MAY, AND IT SHALL WHENEVER DEEMED BY IT TO BE
NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST, AFTER FULL HEARING UPON
COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, ESTABLISH
THROUGH ROUTES, JOINT CLASSIFICATIONS, AND JOINT RATES, FARES, OR
CHARGES, APPLICABLE TO THE TRANSPORTATION OF PASSENGERS OR PROPERTY BY
CARRIERS SUBJECT TO THIS CHAPTER, OR BY CARRIERS BY RAILROAD SUBJECT TO
THIS CHAPTER AND COMMON CARRIERS BY WATER SUBJECT TO CHAPTER 12 OF THIS
TITLE, OR THE MAXIMA OR MINIMA, OR MAXIMA AND MINIMA, TO BE CHARGED,
AND THE DIVISIONS OF SUCH RATES, FARES, OR CHARGES AS HEREINAFTER
PROVIDED, AND THE TERMS AND CONDITIONS UNDER WHICH SUCH THROUGH ROUTES
SHALL BE OPERATED." 

FN4  THE TERM "MULTI-CARRIER THROUGH ROUTE" IS USED HERE TO INDICATE
A ROUTE COMPOSED OF TWO OR MORE CARRIERS WHICH HAVE ESTABLISHED AMONG
THEMSELVES A THROUGH ROUTE WITH JOINT RATES.  THIS, OF COURSE,
DESCRIBES THE BIEBER ROUTE FROM SOUTHERN CALIFORNIA TO PORTLAND. 

FN5  CONGRESS HAS REFUSED, ALTHOUGH REQUESTED TO DO SO BY THE
COMMISSION, TO REPEAL SEC. 15(4).  SEE THOMPSON V. UNITED STATES,
SUPRA, AT 555. 

FN6  SECTION 3(4) WAS NOT INVOLVED.  WHAT WAS IN LITIGATION WAS THE
CONSTRUCTION OF ONE OF ITS EARLIER ORDERS ALLOWING ONE CARRIER TO LEASE
ANOTHER.  COMMISSION APPROVAL WAS ACCOMPANIED BY CONDITIONS ASSURING
"EQUAL SERVICE, ROUTING, AND MOVEMENT OF COMPETITIVE TRAFFIC TO AND
FROM ALL CONNECTING LINES" REACHED BY THE LESSEE.  284 U.S., AT 292. 
IT WAS IN THAT CONTEXT THAT THE COURT HELD THAT CARRIERS WERE PROTECTED
EVEN THOUGH THEIR RAILS DID NOT "PHYSICALLY ABUT" ON THE RAILS OF THE
LESSEE.  284 U.S., AT 293. 
..END :



HARRIS V. U.S. 382 U.S. 162 


NO. 6.  ARGUED OCTOBER 11-12, 1965.  - DECIDED DECEMBER 6, 1965.  - 334
F.2D 460, REVERSED AND REMANDED. 


PETITIONER, A GRAND JURY WITNESS, REFUSED ON SELF-INCRIMINATION
GROUNDS TO ANSWER CERTAIN QUESTIONS.  HE AND THE GRAND JURY WERE
BROUGHT BEFORE THE DISTRICT JUDGE, WHO ADVISED PETITIONER THAT HE WOULD
RECEIVE IMMUNITY FROM PROSECUTION AND ORDERED HIM TO ANSWER THE
QUESTIONS BEFORE THE GRAND JURY, BUT PETITIONER REFUSED AGAIN.  HE WAS
BROUGHT BEFORE THE COURT AGAIN AND SWORN AND ONCE MORE REFUSED TO
ANSWER ON THE GROUND OF PRIVILEGE.  THE DISTRICT JUDGE THEREUPON
ADJUDGED PETITIONER GUILTY OF CRIMINAL CONTEMPT AND IMPOSED A PRISON
SENTENCE UNDER RULE 42(A) OF THE RULES OF CRIMINAL PROCEDURE, WHICH
PROVIDES FOR SUMMARY PUNISHMENT FOR CRIMINAL CONTEMPT COMMITTED IN THE
COURT'S PRESENCE.  HELD: 

1.  SUMMARY PUNISHMENT OF CRIMINAL CONTEMPT UNDER RULE 42(A) IS
RESERVED FOR SUCH ACTS OF MISCONDUCT IN THE COURT'S PRESENCE AS
THREATENING THE JUDGE OR OBSTRUCTING COURT PROCEEDINGS AND OTHER
EXCEPTIONAL CIRCUMSTANCES REQUIRING PROMPT VINDICATION OF THE COURT'S
DIGNITY AND AUTHORITY.  P. 164. 

2.  A REFUSAL TO TESTIFY, SUCH AS THE ONE HERE, NOT INVOLVING A
SERIOUS THREAT TO ORDERLY PROCEDURE IS PUNISHABLE ONLY AFTER NOTICE AND
HEARING AS PROVIDED BY RULE 42(B).  BROWN V. UNITED STATES, 359 U.S.
41, OVERRULED.  PP. 164-167. 

HARRIS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE BRINGS BACK TO US A QUESTION RESOLVED BY A CLOSELY DIVIDED
COURT IN BROWN V. UNITED STATES, 359 U.S. 41, CONCERNING THE RESPECTIVE
SCOPE OF RULE 42(A) AND OF RULE 42(B) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE.  PETITIONER WAS A WITNESS BEFORE A GRAND JURY AND REFUSED TO
ANSWER CERTAIN QUESTIONS ON THE GROUND OF SELF-INCRIMINATION.  HE AND
THE GRAND JURY WERE BROUGHT BEFORE THE DISTRICT COURT WHICH DIRECTED
HIM TO ANSWER THE QUESTIONS PROPOUNDED BEFORE THE GRAND JURY, STATING
THAT PETITIONER WOULD RECEIVE IMMUNITY FROM PROSECUTION.  HE REFUSED
AGAIN TO GIVE ANY ANSWERS TO THE GRAND JURY.  HE WAS THEREUPON BROUGHT
BEFORE THE DISTRICT COURT AND SWORN.  THE DISTRICT COURT REPEATED THE
QUESTIONS AND DIRECTED PETITIONER TO ANSWER, BUT HE REFUSED ON THE
GROUND OF PRIVILEGE.  THE PROSECUTION AT ONCE REQUESTED THAT PETITIONER
BE FOUND IN CONTEMPT OF COURT "UNDER RULE 42(A)."  COUNSEL FOR
PETITIONER PROTESTED AND REQUESTED AN ADJOURNMENT AND A PUBLIC HEARING
WHERE HE WOULD BE PERMITTED TO CALL WITNESSES.  THE DISTRICT COURT
DENIED THE MOTION AND THEREUPON ADJUDGED PETITIONER GUILTY OF CRIMINAL
CONTEMPT, IMPOSING A SENTENCE OF ONE YEAR'S IMPRISONMENT.  (FN1)  THE
COURT OF APPEALS AFFIRMED, 334 F.2D 460.  WE GRANTED CERTIORARI, 379
U.S. 944. 

RULE 42(A) IS ENTITLED "SUMMARY DISPOSITION" AND READS AS FOLLOWS: 

"A CRIMINAL CONTEMPT MAY BE PUNISHED SUMMARILY IF THE JUDGE CERTIFIES
THAT HE SAW OR HEARD THE CONDUCT CONSTITUTING THE CONTEMPT AND THAT IT
WAS COMMITTED IN THE ACTUAL PRESENCE OF THE COURT.  THE ORDER OF
CONTEMPT SHALL RECITE THE FACTS AND SHALL BE SIGNED BY THE JUDGE AND
ENTERED OF RECORD." 

RULE 42(A) WAS RESERVED "FOR EXCEPTIONAL CIRCUMSTANCES," BROWN V.
UNITED STATES, 359 U.S. 41, 54 (DISSENTING OPINION), SUCH AS ACTS
THREATENING THE JUDGE OR DISRUPTING A HEARING OR OBSTRUCTING COURT
PROCEEDINGS.  IBID.  WE REACH THAT CONCLUSION IN LIGHT OF "THE CONCERN
LONG DEMONSTRATED BY BOTH CONGRESS AND THIS COURT OVER THE POSSIBLE
ABUSE OF THE CONTEMPT POWER," IBID., AND IN LIGHT OF THE WORDING OF THE
RULE.  SUMMARY CONTEMPT IS FOR "MISBEHAVIOR" (EX PARTE TERRY, 128 U.S.
289, 314) IN THE "ACTUAL PRESENCE OF THE COURT."  THEN SPEEDY
PUNISHMENT MAY BE NECESSARY IN ORDER TO ACHIEVE "SUMMARY VINDICATION OF
THE COURT'S DIGNITY AND AUTHORITY."  COOKE V. UNITED STATES, 267 U.S.
517, 534.  BUT SWIFTNESS WAS NOT A PREREQUISITE OF JUSTICE HERE.  DELAY
NECESSARY FOR A HEARING WOULD NOT IMPERIL THE GRAND JURY PROCEEDINGS. 

CASES OF THE KIND INVOLVED HERE ARE FOREIGN TO RULE 42(A).  THE REAL
CONTEMPT, IF SUCH THERE WAS, WAS CONTEMPT BEFORE THE GRAND JURY - THE
REFUSAL TO ANSWER TO IT WHEN DIRECTED BY THE COURT.  SWEARING THE
WITNESS AND REPEATING THE QUESTIONS BEFORE THE JUDGE WAS AN EFFORT TO
HAVE THE REFUSAL TO TESTIFY "COMMITTED IN THE ACTUAL PRESENCE OF THE
COURT" FOR THE PURPOSES OF RULE 42(A).  IT SERVED NO OTHER PURPOSE, FOR
THE WITNESS HAD BEEN ADAMANT AND HAD MADE HIS POSITION KNOWN.  THE
APPEARANCE BEFORE THE DISTRICT COURT WAS NOT A NEW AND DIFFERENT
PROCEEDING, UNRELATED TO THE OTHER.   IT WAS ANCILLARY TO THE GRAND
JURY HEARING AND DESIGNED AS AN AID TO IT.  EVEN THOUGH WE ASSUME
ARGUENDO THAT RULE 42(A) MAY AT TIMES REACH TESTIMONIAL EPISODES,
NOTHING IN THIS CASE INDICATES THAT PETITIONER'S REFUSAL WAS SUCH AN
OPEN, SERIOUS THREAT TO ORDERLY PROCEDURE THAT INSTANT AND SUMMARY
PUNISHMENT, AS DISTINGUISHED FROM DUE AND DELIBERATE PROCEDURES (COOKE
V. UNITED STATES, SUPRA, AT 536), WAS NECESSARY.  SUMMARY PROCEDURE, TO
USE THE WORDS OF CHIEF JUSTICE TAFT, WAS DESIGNED TO FILL "THE NEED FOR
IMMEDIATE PENAL VINDICATION OF THE DIGNITY OF THE COURT."  IBID.  WE
START FROM THE PREMISE LONG AGO STATED IN ANDERSON V. DUNN, 6 WHEAT. 
204, 231, THAT THE LIMITS OF THE POWER TO PUNISH FOR CONTEMPT ARE "THE
LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED."  (FN2)  IN THE
INSTANT CASE, THE DIGNITY OF THE COURT WAS NOT BEING AFFRONTED: NO
DISTURBANCE HAD TO BE QUELLED; NO INSOLENT TACTICS HAD TO BE STOPPED. 
THE CONTEMPT HERE COMMITTED WAS FAR OUTSIDE THE NARROW CATEGORY
ENVISIONED BY RULE 42(A).  (FN3) 

RULE 42(B) PROVIDES THE NORMAL PROCEDURE.  IT READS: 

"A CRIMINAL CONTEMPT EXCEPT AS PROVIDED IN SUBDIVISION (A) OF THIS
RULE SHALL BE PROSECUTED ON NOTICE.  THE NOTICE SHALL STATE THE TIME
AND PLACE OF HEARING, ALLOWING A REASONABLE TIME FOR THE PREPARATION OF
THE DEFENSE, AND SHALL STATE THE ESSENTIAL FACTS CONSTITUTING THE
CRIMINAL CONTEMPT CHARGED AND DESCRIBE IT AS SUCH.  THE NOTICE SHALL BE
GIVEN ORALLY BY THE JUDGE IN OPEN COURT IN THE PRESENCE OF THE
DEFENDANT OR, ON APPLICATION OF THE UNITED STATES ATTORNEY OR OF AN
ATTORNEY APPOINTED BY THE COURT FOR THAT PURPOSE, BY AN ORDER TO SHOW
CAUSE OR AN ORDER OF ARREST.  THE DEFENDANT IS ENTITLED TO A TRIAL BY
JURY IN ANY CASE IN WHICH AN ACT OF CONGRESS SO PROVIDES.  HE IS
ENTITLED TO ADMISSION TO BAIL AS PROVIDED IN THESE RULES.  IF THE
CONTEMPT CHARGED INVOLVES DISRESPECT TO OR CRITICISM OF A JUDGE, THAT
JUDGE IS DISQUALIFIED FROM PRESIDING AT THE TRIAL OR HEARING EXCEPT
WITH THE DEFENDANT'S CONSENT.  UPON A VERDICT OR FINDING OF GUILT THE
COURT SHALL ENTER AN ORDER FIXING THE PUNISHMENT." 

SUCH NOTICE AND HEARING SERVE IMPORTANT ENDS.  WHAT APPEARS TO BE A
BRAZEN REFUSAL TO COOPERATE WITH THE GRAND JURY MAY INDEED BE A CASE OF
FRIGHTENED SILENCE.  REFUSAL TO ANSWER MAY BE DUE TO FEAR - FEAR OF
REPRISALS ON THE WITNESS OR HIS FAMILY.  OTHER EXTENUATING
CIRCUMSTANCES MAY BE PRESENT.  (FN4)  WE DO NOT SUGGEST THAT THERE WERE
CIRCUMSTANCES OF THAT NATURE HERE.  WE ARE WHOLLY IGNORANT OF THE
EPISODE EXCEPT FOR WHAT THE RECORD SHOWS AND IT REVEALS ONLY THE
BAREBONES OF DEMAND AND REFUSAL.  IF JUSTICE IS TO BE DONE, A
SENTENCING JUDGE SHOULD KNOW ALL THE FACTS.  WE CAN IMAGINE SITUATIONS
WHERE THE QUESTIONS ARE SO INCONSEQUENTIAL TO THE GRAND JURY BUT THE
FEAR OF REPRISAL SO GREAT THAT ONLY NOMINAL PUNISHMENT, IF ANY, IS
INDICATED.  OUR POINT IS THAT A HEARING AND ONLY A HEARING WILL
ELUCIDATE ALL THE FACTS AND ASSURE A FAIR ADMINISTRATION OF JUSTICE. 
THEN COURTS WILL NOT ACT ON SURMISE OR SUSPICION BUT WILL COME TO THE
SENTENCING STAGE OF THE PROCEEDING WITH INSIGHT AND UNDERSTANDING. 

WE ARE CONCERNED SOLELY WITH "PROCEDURAL REGULARITY" WHICH, AS MR.
JUSTICE BRANDEIS SAID IN BURDEAU V. MCDOWELL, 256 U.S. 465, 477
(DISSENTING), HAS BEEN "A LARGE FACTOR" IN THE DEVELOPMENT OF OUR
LIBERTY.  RULE 42(B) PRESCRIBES THE "PROCEDURAL REGULARITY" FOR ALL
CONTEMPTS IN THE FEDERAL REGIME (FN5) EXCEPT THOSE UNUSUAL SITUATIONS
ENVISIONED BY RULE 42(A) WHERE INSTANT ACTION IS NECESSARY TO PROTECT
THE JUDICIAL INSTITUTION ITSELF. 

WE OVERRULE BROWN V. UNITED STATES, SUPRA, AND REVERSE AND REMAND
THIS CASE FOR PROCEEDINGS UNDER RULE 42(B).  REVERSED AND REMANDED. 

FN1  "THE COURT:  ANYTHING FURTHER? 

"MR. MALONEY:  NO, YOUR HONOR. 

"I THINK THE RECORD SPEAKS FOR ITSELF, AND I WOULD ASK YOUR HONOR TO
FIND THIS WITNESS IN CONTEMPT OF COURT UNDER RULE 42(A) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE. 

"MR. POLAKOFF:  YOUR HONOR, IF THIS IS A CONTEMPT PROCEEDING I
RESPECTFULLY REQUEST AN ADJOURNMENT.  I WANT TO HAVE THE MINUTES AND I
WANT TO HAVE AN OPPORTUNITY TO DISCUSS THEM AND CONSIDER THEM WITH MY
CLIENT AND TO LOOK UP THE LAW. 

"I FURTHER REQUEST, YOUR HONOR, A HEARING WHERE I WILL BE PERMITTED
TO CALL WITNESSES, PERHAPS A GRAND JUROR OR TWO OR MORE; PERHAPS THE
PLACES THE PHONE CALLS ALLEGEDLY WERE MADE AS INDICATED BY THE
ASSISTANT, TO PROVE TO YOUR HONOR THAT THERE COULD BE NO POSSIBLE
VIOLATION OF THE COMMUNICATIONS ACT. 

"I HAVE NOT BEEN TOLD WHAT TARIFF HAS BEEN VIOLATED; NO LAW HAS BEEN
CITED OR RULE OR REGULATION TO YOUR HONOR OR TO ME, AND THAT REQUIRES
RESEARCH. 

"I ALSO WOULD REQUEST THAT THE CONTEMPT HEARING BE HELD IN PUBLIC. 

"THE COURT:  YOUR REQUEST IS DENIED.  THIS IS A CONTEMPT COMMITTED IN
OPEN COURT, AND I ADJUDGE THE DEFENDANT GUILTY OF A CRIMINAL CONTEMPT
RULE UNDER RULE 42(A)." 

FN2  AND SEE NYE V. UNITED STATES, 313 U.S. 33, 52-53; IN RE MICHAEL,
326 U.S. 224, 227; CAMMER V. UNITED STATES, 350 U.S. 399, 404. 

FN3  RULE 42(A) WAS DESCRIBED BY THE ADVISORY COMMITTEE AS
"SUBSTANTIALLY A RESTATEMENT OF EXISTING LAW.  EX PARTE TERRY, 128 U.S.
289; COOKE V. UNITED STATES  ...  ."  WE HAVE CONFIRMED THIS ON MORE
THAN ONE OCCASION, E.G., OFFUTT V. UNITED STATES, 348 U.S. 11, 13-14;
BROWN V. UNITED STATES, SUPRA, AT 51. 

FN4  CHIEF JUSTICE TAFT SAID IN COOKE V. UNITED STATES, SUPRA, AT
537: 

"DUE PROCESS OF LAW, THEREFORE, IN THE PROSECUTION OF CONTEMPT,
EXCEPT OF THAT COMMITTED IN OPEN COURT, REQUIRES THAT THE ACCUSED
SHOULD BE ADVISED OF THE CHARGES AND HAVE A REASONABLE OPPORTUNITY TO
MEET THEM BY WAY OF DEFENSE OR EXPLANATION.  WE THINK THIS INCLUDES THE
ASSISTANCE OF COUNSEL, IF REQUESTED, AND THE RIGHT TO CALL WITNESSES TO
GIVE TESTIMONY, RELEVANT EITHER TO THE ISSUE OF COMPLETE EXCULPATION OR
IN EXTENUATION OF THE OFFENSE AND IN MITIGATION OF THE PENALTY TO BE
IMPOSED." 

FN5  IN MORE THAN ONE INSTANCE IN THE SOUTHERN DISTRICT OF NEW YORK,
FROM WHICH THIS CASE COMES, WITNESSES CITED FOR TESTIMONIAL CONTEMPT
BEFORE THE GRAND JURY WERE GIVEN HEARINGS UNDER RULE 42(B).   E.G.,
UNITED STATES V. CASTALDI, 338 F.2D 883; UNITED STATES V. TRAMUNTI, 343
F.2D 548; UNITED STATES V. SHILLITANI, 345 F.2D 290; UNITED STATES V.
PAPPADIO, 346 F.2D 5.  THERE IS NO INDICATION THAT THIS PROCEDURE
IMPEDED THE FUNCTIONING OF THE GRAND JURY. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN,
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THE ISSUE IN THIS CASE IS THE PROCEDURE TO BE FOLLOWED WHEN A WITNESS
HAS REFUSED TO ANSWER QUESTIONS BEFORE A GRAND JURY AFTER HE HAS BEEN
ORDERED TO DO SO BY A DISTRICT COURT.  THIS ISSUE, INVOLVING RULE 42(A)
AND RULE 42(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, WAS, AS THE
COURT SAYS, RESOLVED IN BROWN V. UNITED STATES, 359 U.S. 41.  (FN1)
THAT WAS SIX YEARS AGO.  SINCE THEN THIS COURT HAS MADE NO CHANGES IN
RULE 42(A) OR 42(B).  (FN2)  BUT TODAY BROWN IS OVERTURNED, AND THE
QUESTION IT "RESOLVED" IS NOW ANSWERED IN THE OPPOSITE WAY. 

THE PARTICULAR QUESTION AT ISSUE HERE IS OF LIMITED IMPORTANCE.  BUT
IN THIS AREA THE COURT'S DUTY IS IMPORTANT, INVOLVING AS IT DOES THE
RESPONSIBILITY FOR CLEAR AND CONSISTENT GUIDANCE TO THE FEDERAL
JUDICIARY IN THE APPLICATION OF GROUND RULES OF OUR OWN MAKING.  WE ARE
NOT FAITHFUL TO THAT DUTY, I THINK, WHEN WE OVERTURN A SETTLED
CONSTRUCTION OF THOSE RULES FOR NO BETTER REASONS THAN THOSE THE COURT
AS OFFERED IN THIS CASE.  (FN3) 

THE LIMITED SCOPE OF THE QUESTION AT ISSUE IS MADE CLEAR BY THE
PRESENT RECORD.  A GRAND JURY IN THE SOUTHERN DISTRICT OF NEW YORK WAS
INVESTIGATING ALLEGED VIOLATIONS OF THE COMMUNICATIONS ACT OF 1934. 
(FN4)  THE PETITIONER APPEARED BEFORE THIS GRAND JURY PURSUANT TO A
SUBPOENA.  HE REFUSED TO ANSWER A NUMBER OF QUESTIONS ABOUT AN
INTERSTATE TELEPHONE CALL UPON THE GROUND OF POSSIBLE SELF
INCRIMINATION.  THE PETITIONER WAS THEN GRANTED IMMUNITY FROM ANY
POSSIBLE SELF-INCRIMINATION UNDER SEC. 409(1) OF THE COMMUNICATIONS
ACT.  (FN5)  ONLY AFTER GIVING THE PETITIONER AND HIS LAWYER FULL
OPPORTUNITY TO BE HEARD DID THE DISTRICT JUDGE RULE THAT THE PETITIONER
WAS CLOTHED WITH COMPLETE CONSTITUTIONAL IMMUNITY FROM SELF
INCRIMINATION, AND ONLY THEN DID HE DIRECT THE PETITIONER TO ANSWER THE
GRAND JURY'S QUESTIONS.  THE PETITIONER RETURNED TO THE GRAND JURY ROOM
AND AGAIN REFUSED TO ANSWER THE QUESTIONS, THIS TIME IN DIRECT AND
DELIBERATE DISOBEDIENCE OF THE DISTRICT JUDGE'S ORDER. 

IT IS COMMON GROUND, I SUPPOSE, THAT THE PETITIONER WAS THEN AND
THERE IN CONTEMPT OF COURT.  (FN6)  SINCE THE PETITIONER'S REFUSAL TO
OBEY THE JUDGE'S ORDER DID NOT OCCUR WITHIN THE SIGHT AND HEARING OF
THE JUDGE, A CONTEMPT PROCEEDING COULD THEN HAVE BEEN INITIATED ONLY
UNDER RULE 42(B).  SUCH A PROCEEDING WOULD HAVE BEEN FULLY CONSONANT
WITH OUR DECISION IN BROWN, (FN7) AND A JUDGE "MORE INTENT UPON
PUNISHING THE WITNESS THAN AIDING THE GRAND JURY IN ITS INVESTIGATION
MIGHT WELL HAVE TAKEN JUST SUCH A COURSE."  359 U.S., AT 50.  IN SUCH A
PROCEEDING ALL THAT WOULD HAVE BEEN REQUIRED TO PROVE THE CONTEMPT
WOULD HAVE BEEN THE TESTIMONY OF THE GRAND JURY STENOGRAPHER, AND THE
JUDGE COULD THEN HAVE IMPOSED SENTENCE.  SUCH A  PROCEDURE IS OFTEN
FOLLOWED.  (FN8) 

INSTEAD, HOWEVER, THE DISTRICT JUDGE IN THIS CASE FOLLOWED THE
ALTERNATIVE PROCEDURE APPROVED IN BROWN.  HE MADE ONE LAST EFFORT TO
AID THE GRAND JURY IN ITS INVESTIGATION AND GAVE THE PETITIONER A FINAL
CHANCE TO PURGE HIMSELF OF CONTEMPT.  THE PETITIONER AND HIS LAWYER
APPEARED BEFORE THE JUDGE IN OPEN COURT.  (FN9)  AFTER THE PETITIONER
WAS SWORN AS A WITNESS, THE JUDGE PROPOUNDED THE SAME QUESTIONS WHICH
THE PETITIONER HAD REFUSED TO ANSWER BEFORE THE GRAND JURY.  THE
PETITIONER AGAIN REFUSED TO ANSWER.  AT THE CONCLUSION OF THE
QUESTIONING THE JUDGE ASKED, "DOES ANYBODY WANT TO SAY ANYTHING
FURTHER?"  THE ONLY RESPONSE FROM THE PETITIONER'S COUNSEL, THEN OR
LATER, (FN10) WAS A BRIEF RENEWAL OF HIS ATTACK UPON THE PURPOSE OF THE
GRAND JURY INVESTIGATION AND THE SCOPE OF THE IMMUNITY WHICH HAD BEEN
CONFERRED UPON THE PETITIONER - LEGAL QUESTIONS WHICH THE JUDGE HAD,
AFTER A COMPLETE HEARING, FULLY DETERMINED BEFORE HE HAD ORDERED THE
PETITIONER TO ANSWER THE GRAND JURY'S QUESTIONS IN THE FIRST PLACE. 
THE PROCEDURE FOLLOWED BY THE DISTRICT COURT IN THIS CASE WAS IN
PRECISE CONFORMITY WITH RULE 42(A) AND WITH LONG-SETTLED AND
CONSISTENTLY FOLLOWED PRACTICE.  (FN11)  IT IS A PROCEDURE WHICH, IN
THIS CONTEXT, IS AT LEAST AS FAIR AS A RULE 42(B) PROCEEDING.  THE
PETITIONER, REPRESENTED BY COUNSEL, WAS ACCORDED AN ADDITIONAL CHANCE
TO PURGE HIMSELF OF CONTEMPT; HE AND HIS COUNSEL WERE ACCORDED FULL
OPPORTUNITY TO OFFER ANY EXPLANATION THEY MIGHT HAVE HAD IN EXTENUATION
OF THE CONTEMPT - TO INFORM THE "SENTENCING JUDGE OF ALL THE FACTS." 
AND FINALLY, THERE IS NO REASON TO ASSUME THAT A SENTENCE IMPOSED FOR
OBDURACY BEFORE A GRAND JURY IS LIKELY TO BE MORE SEVERE IN A RULE
42(A) PROCEEDING THAN ONE IMPOSED AFTER A PROCEEDING UNDER RULE 42(B). 
INDEED, THE RECENT RULE 42(B) CASES IN THE SOUTHERN DISTRICT OF NEW
YORK REFERRED TO BY THE COURT INDICATE THE CONTRARY.  (FN12)  A
SENTENCE FOR CONTEMPT IS REVIEWABLE ON APPEAL IN EITHER CASE, (FN13)
AND THERE IS NOTHING TO SUGGEST THAT IN THE EXERCISE OF THIS REVIEWING
POWER AN APPELLATE COURT WILL HAVE ANY MORE INFORMATION TO GO ON IN THE
ONE CASE THAN IN THE OTHER. 

FOR THESE REASONS I WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS. 

FN1  BROWN V. UNITED STATES WAS REAFFIRMED AND FOLLOWED IN LEVINE V.
UNITED STATES, 362 U.S. 610. 

FN2  THE PROPOSED AMENDMENTS TO RULES OF CRIMINAL PROCEDURE FOR THE
UNITED STATES DISTRICT COURTS, APPROVED ON SEPTEMBER 22-23, 1965, BY
THE JUDICIAL CONFERENCE OF THE UNITED STATES, MAKE NO CHANGES IN RULE
42(A) OR RULE 42(B). 

FN3  NO ARGUMENTATION OR FACTUAL DATA ARE CONTAINED IN THE COURT'S
OPINION TODAY WHICH WERE NOT FULLY REVEALED IN THE DISSENTING OPINION
IN BROWN, 359 U.S., AT 53-63, PASSIM, AND CONSIDERED BY THE COURT
THERE.  NOR IS IT SUGGESTED THAT THE BROWN RULE HAS PROVED TO BE
UNCLEAR OR DIFFICULT OF APPLICATION.  THE CONSIDERATIONS ATTENDING THE
OVERRULING OF BROWN ARE QUITE UNLIKE THOSE INVOLVED IN THE OVERRULING
THAT OCCURRED IN SWIFT & CO., INC. V. WICKHAM, ANTE, P. 111, WHERE THE
COURT CHANGED A PROCEDURAL RULE WHICH IT FOUND UNWORKABLE IN ACTUAL
PRACTICE. 

FN4  48 STAT. 1070 AND 1100, 47 U.S.C. SECS. 203(C) AND 501 (1964
ED.), AND 18 U.S.C.  SEC. 1952 (1964 ED.). 

FN5  48 STAT. 1096, 47 U.S.C. SEC. 409(L)(1964 ED.). 

FN6  THE PREVAILING OPINION TODAY SAYS, "THE REAL CONTEMPT, IF SUCH
THERE WAS, WAS CONTEMPT BEFORE THE GRAND JURY  ...  ."  BUT A GRAND
JURY IS WITHOUT POWER ITSELF TO COMPEL THE TESTIMONY OF WITNESSES.  IT
IS THE COURT'S PROCESS WHICH SUMMONS THE WITNESS TO ATTEND AND GIVE
TESTIMONY, AND IT IS THE COURT WHICH MUST COMPEL A WITNESS TO TESTIFY,
IF, AFTER APPEARING, HE REFUSES TO DO SO. 

FN7  "WHEN UPON HIS RETURN TO THE GRAND JURY ROOM THE PETITIONER
AGAIN REFUSED TO ANSWER THE GRAND JURY'S QUESTIONS, NOW IN DIRECT
DISOBEDIENCE OF THE COURT'S ORDER, HE WAS FOR THE FIRST TIME GUILTY OF
CONTEMPT.  AT THAT POINT A CONTEMPT PROCEEDING COULD UNQUESTIONABLY AND
QUITE PROPERLY HAVE BEEN INITIATED.  SINCE THIS DISOBEDIENCE OF THE
ORDER DID NOT TAKE PLACE IN THE ACTUAL PRESENCE OF THE COURT, AND THUS
COULD BE MADE KNOWN TO THE COURT ONLY BY THE TAKING OF EVIDENCE, THE
PROCEEDING WOULD HAVE BEEN CONDUCTED UPON NOTICE AND HEARING IN
CONFORMITY WITH RULE 42(B).  SEE CARLSON V. UNITED STATES, 209 F.2D
209, 216 (C.A. 1ST CIR.)."  359 U.S., AT 50. 

FN8  SEE CASES CITED IN NOTE 5 OF THE COURT'S OPINION, ANTE, P. 167. 

FN9  THE RECORD SHOWS THAT THE COURT WAS "OPENED BY PROCLAMATION." 

FN10  BEFORE IMPOSING SENTENCE, THE JUDGE GAVE PETITIONER AND HIS
COUNSEL STILL ANOTHER OPPORTUNITY TO OFFER ANY EXPLANATION THEY MIGHT
HAVE OF THE PETITIONER'S OBDURACY: 

"THE COURT:  I HAVE ALREADY MADE MY POSITION PERFECTLY CLEAR, BUT I
WILL SAY IT AGAIN:  I HAVE DIRECTED YOU TO ANSWER THESE QUESTIONS
BEFORE THE GRAND JURY, AND I HAVE DIRECTED YOU TO ANSWER THEM HERE.  IT
IS MY RULING THAT YOU CANNOT BE PROSECUTED FOR ANY ANSWER THAT YOU GIVE
UNDER THE CIRCUMSTANCES OF THIS CASE.  DO YOU STILL REFUSE, MR.
HARRIS? 

"THE WITNESS:  I RESPECTFULLY REFUSE TO ANSWER ON THE GROUNDS IT
WOULD TEND TO INCRIMINATE ME. 

"THE COURT:  ANYTHING FURTHER?" 

FN11  SEE, IN ADDITION TO BROWN V. UNITED STATES, 359 U.S. 41, AND
LEVINE V. UNITED STATES, 362 U.S. 610:  ROGERS V. UNITED STATES, 340
U.S. 367; WILSON V. UNITED STATES, 221 U.S. 361, 369; HALE V. HENKEL,
201 U.S. 43, 46; UNITED STATES V. CURCIO, 234 F.2D 470, 473 (C.A.2D
CIR.), REV'D ON OTHER GROUNDS, 354 U.S. 118 (1957); LOPIPARO V. UNITED
STATES, 216 F.2D 87 (C.A. 8TH CIR.); UNITED STATES V. WEINBERG, 65 F.2D
394, 396 (C.A.2D CIR.).  FOR THE EARLIER PRACTICE AT COMMON LAW, SEE
PEOPLE EX REL. PHELPS V. FANCHER, 4 THOMPSON & COOK 467 (N.Y. 1874);
PEOPLE EX REL. HACKLEY V. KELLY, 24 N.Y. 74, 79-80 (1861); IN RE
HARRIS, 4 UTAH 5, 8-9, 5 P. 129, 130-132 (1884); HEARD V. PIERCE, 8
CUSH.  338, 342-345 (MASS. 1851). 

FN12  SEE NOTE 5 OF THE COURT'S OPINION, ANTE, P. 167.  UNITED STATES
V. CASTALDI, 338 F.2D 883 (TWO YEARS); UNITED STATES V. TRAMUNTI, 343
F.2D 548 (ONE YEAR); UNITED STATES V. SHILLITANI, 345 F.2D 290 (TWO
YEARS); UNITED STATES V. PAPPADIO, 346 F.2D 5 (TWO YEARS). 

FN13  SEE GREEN V. UNITED STATES, 356 U.S. 165, 188; YATES V. UNITED
STATES, 356 U.S. 363; NILVA V. UNITED STATES, 352 U.S. 385, 396; BROWN
V. UNITED STATES, 359 U.S. 41, 52. 
..END :











WALKER PROCESS EQUIP. CO. V. FOOD MACH. & CHEMICAL CORP. 382 U.S. 172 


NO. 13.  ARGUED OCTOBER 12-13, 1965.  - DECIDED DECEMBER 6, 1965.  - 335
F.2D 315, REVERSED AND REMANDED. 


PETITIONER, IN ANSWER TO RESPONDENT'S SUIT FOR PATENT INFRINGEMENT,
DENIED THE INFRINGEMENT AND COUNTERCLAIMED FOR A DECLARATORY JUDGMENT
HOLDING THE PATENT INVALID.  AFTER DISCOVERY PROCEEDINGS, RESPONDENT
MOVED TO DISMISS ITS COMPLAINT BECAUSE THE PATENT HAD EXPIRED. 
PETITIONER THAN AMENDED ITS COUNTERCLAIM TO CHARGE THAT RESPONDENT HAD
ILLEGALLY MONOPOLIZED COMMERCE BY HAVING FRAUDULENTLY AND IN BAD FAITH
OBTAINED AND MAINTAINED THE PATENT IN VIOLATION OF THE ANTITRUST LAWS,
AND SOUGHT TREBLE DAMAGES.  THE DISTRICT COURT DISMISSED THE COMPLAINT
AND THE COUNTERCLAIM AND THE COURT OF APPEALS AFFIRMED.  HELD:  THE
ENFORCEMENT OF A PATENT PROCURED BY FRAUD ON THE PATENT OFFICE MAY
VIOLATE SEC. 2 OF THE SHERMAN ACT, PROVIDED ALL OTHER ELEMENTS TO
ESTABLISH A SEC. 2 MONOPOLIZATION CHARGE ARE PROVED, IN WHICH EVENT THE
TREBLE-DAMAGE PROVISIONS OF SEC. 4 OF THE CLAYTON ACT WOULD BE
AVAILABLE TO THE INJURED PARTY.  PP. 175-178. 

(A)  PETITIONER IS NOT BARRED BY THE RULE THAT ONLY THE UNITED STATES
MAY SUE TO CANCEL A PATENT SINCE BY ITS COUNTERCLAIM UNDER THE CLAYTON
ACT IT DOES NOT DIRECTLY SEEK THE PATENT'S ANNULMENT.  PP. 175-176. 

(B)  IN THESE CIRCUMSTANCES RIGHTS UNDER THE ANTITRUST LAWS OUTWEIGH
THE PROTECTION OF PATENTEES FROM VEXATIOUS SUITS.  P. 176. 

(C)  THE RECOVERY OF TREBLE DAMAGES FOR THE FRAUDULENT PROCUREMENT OF
A PATENT COUPLED WITH VIOLATIONS  OF SEC. 2 OF THE SHERMAN ACT ACCORDS
WITH LONG-RECOGNIZED PROCEDURES WHEREBY AN INJURED PARTY MAY ATTACK THE
MISUSE OF PATENT RIGHTS.  PP. 176-177. 

(D)  PROOF OF INTENTIONAL FRAUD IN OBTAINING THE PATENT WOULD DEPRIVE
RESPONDENT OF ITS EXEMPTION FROM THE ANTITRUST LAWS, WHILE ITS GOOD
FAITH WOULD FURNISH A COMPLETE DEFENSE.  P. 177. 

(E)  THE CASE IS REMANDED TO THE TRIAL COURT TO ALLOW PETITIONER TO
CLARIFY AND OFFER PROOF ON THE ALLEGED VIOLATIONS OF SEC. 2.  P. 178. 

WALKER PROCESS EQUIPMENT, INC. V. FOOD MACHINERY & CHEMICAL CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER THE MAINTENANCE AND ENFORCEMENT OF
A PATENT OBTAINED BY FRAUD ON THE PATENT OFFICE MAY BE THE BASIS OF AN
ACTION UNDER SEC. 2 OF THE SHERMAN ACT, (FN1) AND THEREFORE SUBJECT TO
A TREBLE DAMAGE CLAIM BY AN INJURED PARTY UNDER SEC. 4 OF THE CLAYTON
ACT.  (FN2)  THE RESPONDENT, FOOD MACHINERY & CHEMICAL CORP. (HEREAFTER
FOOD MACHINERY), FILED THIS SUIT FOR INFRINGEMENT OF ITS PATENT NO.
2,328,655 COVERING KNEE-ACTION SWING DIFFUSERS USED IN AERATION
EQUIPMENT FOR SEWAGE TREATMENT SYSTEMS.  (FN3)  PETITIONER, WALKER
PROCESS EQUIPMENT, INC. (HEREAFTER WALKER), DENIED THE INFRINGEMENT AND
COUNTERCLAIMED FOR A DECLARATORY JUDGMENT THAT THE PATENT WAS INVALID. 
AFTER DISCOVERY, FOOD MACHINERY MOVED TO DISMISS ITS COMPLAINT WITH
PREJUDICE BECAUSE THE PATENT HAD EXPIRED.  WALKER THEN AMENDED ITS
COUNTERCLAIM TO CHARGE THAT FOOD MACHINERY HAD "ILLEGALLY MONOPOLIZED
INTERSTATE AND FOREIGN COMMERCE BY FRAUDULENTLY AND IN BAD FAITH
OBTAINING AND MAINTAINING  ...  ITS PATENT  ...  WELL KNOWING THAT IT
HAD NO BASIS FOR ...  A PATENT."   IT ALLEGED FRAUD ON THE BASIS THAT
FOOD MACHINERY HAD SWORN BEFORE THE PATENT OFFICE THAT IT NEITHER KNEW
NOR BELIEVED THAT ITS INVENTION HAD BEEN IN PUBLIC USE IN THE UNITED
STATES FOR MORE THAN ONE YEAR PRIOR TO FILING ITS PATENT APPLICATION
WHEN, IN FACT, FOOD MACHINERY WAS A PARTY TO PRIOR USE WITHIN SUCH
TIME.  THE COUNTERCLAIM FURTHER ASSERTED THAT THE EXISTENCE OF THE
PATENT HAD DEPRIVED WALKER OF BUSINESS THAT IT WOULD HAVE OTHERWISE
ENJOYED.  WALKER PRAYED THAT FOOD MACHINERY'S CONDUCT BE DECLARED A
VIOLATION OF THE ANTITRUST LAWS AND SOUGHT RECOVERY OF TREBLE DAMAGES. 

THE DISTRICT COURT GRANTED FOOD MACHINERY'S MOTION AND DISMISSED ITS
INFRINGEMENT COMPLAINT ALONG WITH WALKER'S AMENDED COUNTERCLAIM,
WITHOUT LEAVE TO AMEND AND WITH PREJUDICE.  THE COURT OF APPEALS FOR
THE SEVENTH CIRCUIT AFFIRMED, 335 F.2D 315.  WE GRANTED CERTIORARI, 379
U.S. 957.  WE HAVE CONCLUDED THAT THE ENFORCEMENT OF A PATENT PROCURED
BY FRAUD ON THE PATENT OFFICE MAY BE VIOLATIVE OF SEC. 2 OF THE SHERMAN
ACT PROVIDED THE OTHER ELEMENTS NECESSARY TO A SEC. 2 CASE ARE
PRESENT.  IN SUCH EVENT THE TREBLE DAMAGE PROVISIONS OF SEC. 4 OF THE
CLAYTON ACT WOULD BE AVAILABLE TO AN INJURED PARTY. 

                                          I. 

AS THE CASE REACHES US, THE ALLEGATIONS OF THE COUNTERCLAIM, AS TO
THE FRAUD PRACTICED UPON THE GOVERNMENT BY FOOD MACHINERY AS WELL AS
THE RESULTING DAMAGE SUFFERED BY WALKER, ARE TAKEN AS TRUE.  (FN4)  WE,
THEREFORE, MOVE IMMEDIATELY TO A CONSIDERATION OF THE LEGAL ISSUES
PRESENTED. 

BOTH WALKER AND THE UNITED STATES, WHICH APPEARS AS AMICUS CURIAE,
ARGUE THAT IF FOOD MACHINERY OBTAINED ITS PATENT BY FRAUD AND
THEREAFTER USED THE PATENT TO EXCLUDE WALKER FROM THE MARKET THROUGH
"THREATS OF SUIT" AND PROSECUTION OF THIS INFRINGEMENT SUIT, SUCH PROOF
WOULD ESTABLISH A PRIMA FACIE VIOLATION OF SEC. 2 OF THE SHERMAN ACT. 
ON THE OTHER HAND, FOOD MACHINERY SAYS THAT A PATENT MONOPOLY AND A
SHERMAN ACT MONOPOLIZATION CANNOT BE EQUATED; THE REMOVAL OF THE
PROTECTION OF A PATENT GRANT BECAUSE OF FRAUDULENT PROCUREMENT DOES NOT
AUTOMATICALLY RESULT IN A SEC. 2 OFFENSE.  BOTH LOWER COURTS SEEM TO
HAVE CONCLUDED THAT PROOF OF FRAUDULENT PROCUREMENT MAY BE USED TO BAR
RECOVERY FOR INFRINGEMENT, PRECISION INSTRUMENT MFG. CO. V. AUTOMOTIVE
MAINTENANCE MACHINERY CO., 324 U.S. 806 (1945), BUT NOT TO ESTABLISH
INVALIDITY.  AS THE COURT OF APPEALS EXPRESSED THE PROPOSITION, "ONLY
THE GOVERNMENT MAY 'ANNUL OR SET ASIDE' A PATENT," CITING MOWRY V.
WHITNEY, 14 WALL.  434 (1872).  IT WENT ON TO STATE THAT NO CASE HAD
"DECIDED, OR HINTED THAT FRAUD ON THE PATENT OFFICE MAY BE TURNED TO
USE IN AN ORIGINAL AFFIRMATIVE ACTION, INSTEAD OF AS AN EQUITABLE
DEFENSE ...  .  SINCE WALKER ADMITS THAT ITS ANTI-TRUST THEORY DEPENDS
ON ITS ABILITY TO PROVE FRAUD ON THE PATENT OFFICE, IT FOLLOWS THAT
...  WALKER'S SECOND AMENDED COUNTERCLAIM FAILED TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED."  335 F.2D, AT 316. 

     II. 

WE HAVE CONCLUDED, FIRST, THAT WALKER'S ACTION IS NOT BARRED BY THE
RULE THAT ONLY THE UNITED STATES MAY SUE TO CANCEL OR ANNUL A PATENT. 
IT IS TRUE THAT THERE IS NO STATUTORY AUTHORITY FOR A PRIVATE ANNULMENT
SUIT AND THE INVOCATION OF THE EQUITABLE POWERS OF THE COURT MIGHT
OFTEN SUBJECT A PATENTEE "TO INNUMERABLE VEXATIOUS SUITS TO SET ASIDE
HIS PATENT."  MOWRY, SUPRA, AT 441.  BUT NEITHER REASON APPLIES HERE. 
WALKER COUNTERCLAIMED UNDER THE CLAYTON ACT, NOT THE PATENT LAWS. 
WHILE ONE OF ITS ELEMENTS IS THE FRAUDULENT PROCUREMENT OF A PATENT,
THE ACTION DOES NOT DIRECTLY SEEK THE PATENT'S ANNULMENT.  THE GIST OF
WALKER'S CLAIM IS THAT SINCE FOOD MACHINERY OBTAINED ITS PATENT BY
FRAUD IT CANNOT ENJOY THE LIMITED EXCEPTION TO THE PROHIBITIONS OF SEC.
2 OF THE SHERMAN ACT, BUT MUST ANSWER UNDER THAT SECTION AND SEC. 4 OF
THE CLAYTON ACT IN TREBLE DAMAGES TO THOSE INJURED BY ANY MONOPOLISTIC
ACTION TAKEN UNDER THE FRAUDULENT PATENT CLAIM.  NOR CAN THE INTEREST
IN PROTECTING PATENTEES FROM "INNUMERABLE VEXATIOUS SUITS" BE USED TO
FRUSTRATE THE ASSERTION OF RIGHTS CONFERRED BY THE ANTITRUST LAWS.  IT
MUST BE REMEMBERED THAT WE DEAL ONLY WITH A SPECIAL CLASS OF PATENTS,
I.E., THOSE PROCURED BY INTENTIONAL FRAUD.  UNDER THE DECISIONS OF THIS
COURT A PERSON SUED FOR INFRINGEMENT MAY CHALLENGE THE VALIDITY OF THE
PATENT ON VARIOUS GROUNDS, INCLUDING FRAUDULENT PROCUREMENT.  E.G.,
PRECISION INSTRUMENT MFG. CO. V. AUTOMOTIVE MAINTENANCE MACHINERY CO.,
324 U.S. 806 (1945); HAZEL-ATLAS CO. V. HARTFORD-EMPIRE CO., 322 U.S.
238 (1944); KEYSTONE DRILLER CO. V. GENERAL EXCAVATOR CO., 290 U.S. 240
(1933).  IN FACT, ONE NEED NOT AWAIT THE FILING OF A THREATENED SUIT BY
THE PATENTEE; THE VALIDITY OF THE PATENT MAY BE TESTED UNDER THE
DECLARATORY JUDGMENT ACT, 28 U.S.C. SEC. 2201 (1964 ED.).  SEE KEROTEST
MFG. CO. V. C-O TWO FIRE EQUIPMENT CO., 342 U.S. 180, 185 (1952).  AT
THE SAME TIME, WE HAVE RECOGNIZED THAT AN INJURED PARTY MAY ATTACK THE
MISUSE OF PATENT RIGHTS.  SEE, E.G., MERCOID CORP. V. MID-CONTINENT
INVESTMENT CO., 320 U.S. 661 (1944).  TO PERMIT RECOVERY OF TREBLE
DAMAGES FOR THE FRAUDULENT PROCUREMENT OF THE PATENT COUPLED WITH
VIOLATIONS OF SEC. 2 ACCORDS WITH THESE LONG-RECOGNIZED PROCEDURES.  IT
WOULD ALSO PROMOTE THE PURPOSES SO WELL EXPRESSED IN PRECISION
INSTRUMENT, SUPRA, AT 816: 

"A PATENT BY ITS VERY NATURE IS AFFECTED WITH A PUBLIC INTEREST  ...
.  IT IS AN EXCEPTION TO THE GENERAL RULE AGAINST MONOPOLIES AND TO THE
RIGHT TO ACCESS TO A FREE AND OPEN MARKET.  THE FAR-REACHING SOCIAL AND
ECONOMIC CONSEQUENCES OF A PATENT, THEREFORE, GIVE THE PUBLIC A
PARAMOUNT INTEREST IN SEEING THAT PATENT MONOPOLIES SPRING FROM
BACKGROUNDS FREE FROM FRAUD OR OTHER INEQUITABLE CONDUCT AND THAT SUCH
MONOPOLIES ARE KEPT WITHIN THEIR LEGITIMATE SCOPE." 

                   III. 

WALKER'S COUNTERCLAIM ALLEGED THAT FOOD MACHINERY OBTAINED THE PATENT
BY KNOWINGLY AND WILLFULLY MISREPRESENTING FACTS TO THE PATENT OFFICE. 
PROOF OF THIS ASSERTION WOULD BE SUFFICIENT TO STRIP FOOD MACHINERY OF
ITS EXEMPTION FROM THE ANTITRUST LAWS.  (FN5)  BY THE SAME TOKEN, FOOD
MACHINERY'S GOOD FAITH WOULD FURNISH A COMPLETE  DEFENSE.  THIS
INCLUDES AN HONEST MISTAKE AS TO THE EFFECT OF PRIOR INSTALLATION UPON
PATENTABILITY - SO-CALLED "TECHNICAL FRAUD." 

TO ESTABLISH MONOPOLIZATION OR ATTEMPT TO MONOPOLIZE A PART OF TRADE
OR COMMERCE UNDER SEC. 2 OF THE SHERMAN ACT, IT WOULD THEN BE NECESSARY
TO APPRAISE THE EXCLUSIONARY POWER OF THE ILLEGAL PATENT CLAIM IN TERMS
OF THE RELEVANT MARKET FOR THE PRODUCT INVOLVED.  WITHOUT A DEFINITION
OF THAT MARKET THERE IS NO WAY TO MEASURE FOOD MACHINERY'S ABILITY TO
LESSEN OR DESTROY COMPETITION.  IT MAY BE THAT THE DEVICE - KNEE-ACTION
SWING DIFFUSERS - USED IN SEWAGE TREATMENT SYSTEMS DOES NOT COMPRISE A
RELEVANT MARKET.  THERE MAY BE EFFECTIVE SUBSTITUTES FOR THE DEVICE
WHICH DO NOT INFRINGE THE PATENT.  THIS IS A MATTER OF PROOF, AS IS THE
AMOUNT OF DAMAGES SUFFERED BY WALKER. 

AS RESPONDENT POINTS OUT, WALKER HAS NOT CLEARLY ARTICULATED ITS
CLAIM.  IT APPEARS TO BE BASED ON A CONCEPT OF PER SE ILLEGALITY UNDER
SEC. 2 OF THE SHERMAN ACT.  BUT IN THESE CIRCUMSTANCES, THE ISSUE IS
PREMATURE.  AS THE COURT SUMMARIZED IN WHITE MOTOR CO. V. UNITED
STATES, 372 U.S. 253 (1963), THE AREA OF PER SE ILLEGALITY IS CAREFULLY
LIMITED.  WE ARE RELUCTANT TO EXTEND IT ON THE BARE PLEADINGS AND
ABSENT EXAMINATION OF MARKET EFFECT AND ECONOMIC CONSEQUENCES. 

HOWEVER, EVEN THOUGH THE PER SE CLAIM FAILS AT THIS STAGE OF
LITIGATION, WE BELIEVE THAT THE CASE SHOULD BE REMANDED FOR WALKER TO
CLARIFY THE ASSERTED VIOLATIONS OF SEC. 2 AND TO OFFER PROOF THEREON. 
THE TRIAL COURT DISMISSED ITS SUIT NOT BECAUSE WALKER FAILED TO ALLEGE
THE RELEVANT MARKET, THE DOMINANCE OF THE PATENTED DEVICE THEREIN, AND
THE INJURIOUS CONSEQUENCES TO WALKER OF THE PATENT'S ENFORCEMENT, BUT
RATHER ON THE GROUND THAT THE UNITED STATES ALONE MAY "ANNUL OR SET
ASIDE" A PATENT FOR FRAUD IN PROCUREMENT.  THE TRIAL COURT HAS NOT
ANALYZED ANY ECONOMIC DATA.  INDEED, NO SUCH PROOF HAS YET BEEN OFFERED
BECAUSE OF THE DISPOSITION BELOW.  IN VIEW OF THESE CONSIDERATIONS, AS
WELL AS THE NOVELTY OF THE CLAIM ASSERTED AND THE PAUCITY OF GUIDELINES
AVAILABLE IN THE DECIDED CASES, THIS DEFICIENCY CANNOT BE DEEMED
CRUCIAL.  FAIRNESS REQUIRES THAT ON REMAND WALKER HAVE THE OPPORTUNITY
TO MAKE ITS SEC. 2 CLAIMS MORE SPECIFIC, TO PROVE THE ALLEGED FRAUD,
AND TO ESTABLISH THE NECESSARY ELEMENTS OF THE ASSERTED SEC. 2
VIOLATION.  REVERSED AND REMANDED. 

FN1  26 STAT. 209, 15 U.S.C. SEC. 2 (1964 ED.): 

"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  ...  ." 

FN2  38 STAT. 731, 15 U.S.C. SEC. 15 (1964 ED.): 

"ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY
REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR IN
ANY DISTRICT COURT OF THE UNITED STATES IN THE DISTRICT IN WHICH THE
DEFENDANT RESIDES OR IS FOUND OR HAS AN AGENT, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY, AND SHALL RECOVER THREEFOLD THE DAMAGES BY HIM
SUSTAINED, AND THE COST OF SUIT, INCLUDING A REASONABLE ATTORNEY'S
FEE." 

FN3  THE PATENT IN QUESTION WAS ISSUED IN THE NAME OF THE INVENTOR,
LANNERT.  BUT HE HAD PREVIOUSLY ASSIGNED THE PATENT RIGHTS TO HIS
EMPLOYER, CHICAGO PUMP COMPANY, A DIVISION OF FOOD MACHINERY. 

FN4  SEE, E.G., UNITED STATES V. NEW WRINKLE, INC., 342 U.S. 371, 376
(1952). 

FN5  THIS CONCLUSION APPLIES WITH EQUAL FORCE TO AN ASSIGNEE WHO
MAINTAINS AND ENFORCES THE PATENT WITH KNOWLEDGE OF THE PATENT'S
INFIRMITY. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION.  I DEEM IT APPROPRIATE, HOWEVER, TO ADD A
FEW COMMENTS TO WHAT MY BROTHER CLARK HAS WRITTEN BECAUSE THE ISSUE
DECIDED IS ONE OF FIRST IMPRESSION AND TO ALLAY POSSIBLE
MISAPPREHENSION AS TO THE POSSIBLE REACH OF THIS DECISION. 

WE HOLD TODAY THAT A TREBLE-DAMAGE ACTION FOR MONOPOLIZATION WHICH,
BUT FOR THE EXISTENCE OF A PATENT, WOULD BE VIOLATIVE OF SEC. 2 OF THE
SHERMAN ACT MAY BE MAINTAINED UNDER SEC. 4 OF THE CLAYTON ACT IF TWO
CONDITIONS ARE SATISFIED:  (1) THE RELEVANT PATENT IS SHOWN TO HAVE
BEEN PROCURED BY KNOWING AND WILLFUL FRAUD PRACTICED BY THE DEFENDANT
ON THE PATENT OFFICE OR, IF THE DEFENDANT WAS NOT THE ORIGINAL PATENT
APPLICANT, HE HAD BEEN ENFORCING THE PATENT WITH KNOWLEDGE OF THE
FRAUDULENT MANNER IN WHICH IT WAS OBTAINED; AND (2) ALL THE ELEMENTS
OTHERWISE NECESSARY TO ESTABLISH A SEC. 2 MONOPOLIZATION CHARGE ARE
PROVED.  CONVERSELY, SUCH A PRIVATE CAUSE OF ACTION WOULD NOT BE MADE
OUT IF THE PLAINTIFF:  (1) SHOWED NO MORE THAN INVALIDITY OF THE PATENT
ARISING, FOR EXAMPLE, FROM A JUDICIAL FINDING OF "OBVIOUSNESS," OR FROM
OTHER FACTORS SOMETIMES COMPENDIOUSLY REFERRED TO AS "TECHNICAL FRAUD"'
OR (2) SHOWED FRAUDULENT PROCUREMENT, BUT NO KNOWLEDGE THERE OF BY THE
DEFENDANT; OR (3) FAILED TO PROVE THE ELEMENTS OF A SEC. 2 CHARGE EVEN
THOUGH HE HAS ESTABLISHED ACTUAL FRAUD IN THE PROCUREMENT OF THE PATENT
AND THE DEFENDANT'S KNOWLEDGE OF THAT FRAUD. 

IT IS WELL ALSO TO RECOGNIZE THE RATIONALE UNDERLYING THIS DECISION,
AIMED OF COURSE AT ACHIEVING A SUITABLE ACCOMMODATION IN THIS AREA
BETWEEN THE DIFFERING POLICIES OF THE PATENT AND ANTITRUST LAWS.  TO
HOLD, AS WE DO, THAT PRIVATE SUITS MAY BE INSTITUTED UNDER SEC. 4 OF
THE CLAYTON ACT TO RECOVER DAMAGES FOR SHERMAN ACT MONOPOLIZATION
KNOWINGLY PRACTICED UNDER THE GUISE OF A PATENT PROCURED BY DELIBERATE
FRAUD, CANNOT WELL BE THOUGHT TO IMPINGE UPON THE POLICY OF THE PATENT
LAWS TO ENCOURAGE INVENTIONS AND THEIR DISCLOSURE.  HENCE, AS TO THIS
CLASS OF IMPROPER PATENT MONOPOLIES, ANTITRUST REMEDIES SHOULD BE
ALLOWED ROOM FOR FULL PLAY.  ON THE OTHER HAND, TO HOLD, AS WE DO NOT,
THAT PRIVATE ANTITRUST SUITS MIGHT ALSO REACH MONOPOLIES PRACTICED
UNDER PATENTS THAT FOR ONE REASON OR ANOTHER MAY TURN OUT TO BE
VOIDABLE UNDER ONE OR MORE OF THE NUMEROUS TECHNICALITIES ATTENDING THE
ISSUANCE OF A PATENT, MIGHT WELL CHILL THE DISCLOSURE OF INVENTIONS
THROUGH THE OBTAINING OF A PATENT BECAUSE OF FEAR OF THE VEXATIONS OR
PUNITIVE CONSEQUENCES OF TREBLE-DAMAGE SUITS.  HENCE, THIS PRIVATE
ANTITRUST REMEDY SHOULD NOT BE DEEMED AVAILABLE TO REACH SEC. 2
MONOPOLIES CARRIED ON UNDER A NONFRAUDULENTLY PROCURED PATENT.    THESE
CONTRASTING FACTORS AT ONCE SERVE TO JUSTIFY OUR PRESENT HOLDING AND TO
MARK THE LIMITS OF ITS APPLICATION. 
..END :


















HANNA MINING V. MARINE ENGINEERS 382 U.S. 181 


NO. 7.  ARGUED OCTOBER 12, 1965.  - DECIDED DECEMBER 6, 1965.  - 23 WIS.
2D 433, 127 N.W.2D 393, REVERSED AND REMANDED. 


PETITIONERS (HANNA) OPERATE CARGO VESSELS ON THE GREAT LAKES IN
INTERSTATE AND FOREIGN COMMERCE.  WHILE NEGOTIATING FOR A NEW
COLLECTIVE BARGAINING AGREEMENT WITH RESPONDENT ASSOCIATION (MEBA),
WHICH REPRESENTED THE LICENSED MARINE ENGINEERS ON THE SHIPS,
PETITIONERS ASSERTEDLY WERE INFORMED BY A MAJORITY OF THE ENGINEERS
THAT THEY DID NOT WISH TO BE REPRESENTED BY MEBA.  HANNA DECLINED TO
NEGOTIATE UNTIL MEBA'S MAJORITY STATUS WAS DETERMINED BY SECRET BALLOT,
AND MEBA REPLIED BY PICKETING HANNA'S SHIPS AT DULUTH AND OTHER PORTS,
CAUSING DOCK WORKERS TO REFUSE TO UNLOAD.  HANNA TURNED TO THE NATIONAL
LABOR RELATIONS BOARD (NLRB):  (1) IT PETITIONED THE CLEVELAND REGIONAL
DIRECTOR TO HOLD A REPRESENTATION ELECTION AMONG ITS ENGINEERS TO
DETERMINE MEBA'S STATUS.  THE PETITION WAS DISMISSED ON THE GROUND THAT
THE ENGINEERS WERE "SUPERVISORS" AND NOT "EMPLOYEES" UNDER SEC. 2(3) OF
THE NATIONAL LABOR RELATIONS ACT.  THE NLRB UPHELD THIS DECISION.  (2)
IT FILED CHARGES WITH THE MINNEAPOLIS REGIONAL DIRECTOR ALLEGING THAT
MEBA VIOLATED SEC.  8(B)(4)(B) OF THE ACT BY INDUCING WORK STOPPAGES
AMONG DOCKERS AT DULUTH THROUGH IMPROPER SECONDARY PRESSURE.  THESE
CHARGES WERE DISMISSED AND THE GENERAL COUNSEL AGREED, STATING THAT
MEBA'S CONDUCT AT DULUTH AND OTHER SITES DID NOT EXCEED THE BOUNDS OF
LAWFUL PICKETING UNDER THE NLRB'S STANDARDS.  (3) IT FILED CHARGES WITH
THE CLEVELAND REGIONAL DIRECTOR ACCUSING MEBA OF ORGANIZATIONAL OR
RECOGNITIONAL PICKETING PROHIBITED BY SEC. 8(B)(7) OF THE ACT.  THE
GENERAL COUNSEL AFFIRMED THE DISMISSAL OF THE CHARGES ON THE GROUND
THAT MEBA FELL OUTSIDE THE SECTION SINCE IT SOUGHT TO REPRESENT
SUPERVISORS RATHER THAN EMPLOYEES.  WHEN SHIPPING RESUMED IN THE SPRING
AND MEBA PICKETED HANNA SHIPS IN SUPERIOR, HANNA SUED IN A WISCONSIN
CIRCUIT COURT FOR INJUNCTIVE RELIEF FROM THE PICKETING UNDER STATE
LAW.  THE CIRCUIT COURT DISMISSED FOR LACK OF SUBJECT MATTER
JURISDICTION AND THE STATE SUPREME COURT AFFIRMED, HOLDING THAT
ALTHOUGH THE PICKETING COULD BE DEEMED ILLEGAL UNDER STATE LAW, IT
ARGUABLY VIOLATED SECS. 8(B)(4)(B) AND 8(B)(7) OF THE ACT AND FELL
WITHIN THE NLRB'S EXCLUSIVE JURISDICTION UNDER SAN DIEGO UNIONS V.
GARMON, 359 U.S. 236.  HELD: 

1.  UNDER GARMON A STATE MAY NOT REGULATE CONDUCT ARGUABLY "PROTECTED
BY SEC. 7, OR PROHIBITED BY SEC. 8" OF THE ACT, AND THE LEGISLATIVE
PURPOSE MAY REQUIRE THAT CERTAIN ACTIVITY NEITHER PROTECTED NOR
PROHIBITED BE DEEMED PRIVILEGED AGAINST STATE REGULATION.  P. 187. 

2.  THE NLRB DECISION THAT THE MARINE ENGINEERS ARE SUPERVISORS AND
NOT "EMPLOYEES" ELIMINATES MOST OF THE OPPORTUNITIES FOR PREEMPTION IN
THIS CASE.  P. 188. 

(A)  ORGANIZATIONAL OR RECOGNITIONAL ACTIVITY AIMED AT SUPERVISORS
CANNOT BE PROTECTED BY SEC. 7 OF THE ACT, ARGUABLY OR OTHERWISE.  P.
188. 

(B)  SITUATIONS IN WHICH SUCH ACTIVITY CAN BE PROHIBITED BY THE ACT
ARE FEWER THAN WOULD BE THE CASE IF "EMPLOYEES" WERE BEING ORGANIZED OR
SEEKING RECOGNITION.  P. 188. 

(C)  THERE CAN BE NO BREACH OF SEC. 8(B)(7), WHICH LIMITS
ORGANIZATIONAL OR RECOGNITIONAL PICKETING, SINCE IT APPLIES ONLY TO
PICKETING DIRECTED AT "EMPLOYEES."  P. 188. 

3.  THE ENACTMENT OF SEC. 14(A) OF THE ACT WAS NOT A CONGRESSIONAL
DECISION TO EXCLUDE STATE REGULATION OF SUPERVISORY ORGANIZING.  PP.
189-190. 

4.  THE NLRB'S STATEMENT ACCOMPANYING ITS REFUSAL TO ORDER A
REPRESENTATION ELECTION SETTLES THE SUPERVISORY STATUS OF THE ENGINEERS
"WITH UNCLOUDED LEGAL SIGNIFICANCE," SO AS TO AVOID PREEMPTION IN THE
RESPECTS DISCUSSED.  P. 190. 

5.  SECTION 8(B)(4)(B) DOES NOT PROVIDE A GROUND FOR PREEMPTION IN THE
CIRCUMSTANCES OF THIS CASE.   PP. 191-194. 

(A)  PETITIONERS CLAIM THERE IS NO ARGUABLE VIOLATION ON THE BASIS OF
THE FINDING OF THE REGIONAL DIRECTOR AND GENERAL COUNSEL IN DECLINING
TO ISSUE A COMPLAINT UNDER SEC. 8(B)(4)(B) WITH RESPECT TO THE 1962
PICKETING.  THE GENERAL COUNSEL HAS STATUTORY "FINAL AUTHORITY, ON
BEHALF OF THE BOARD" IN THE ISSUANCE OF COMPLAINTS, AND HIS EXPLICATED
DETERMINATIONS ARE ENTITLED TO GREAT WEIGHT.  PP. 191-192. 

(B)  HANNA HAS OFFERED TO PROVE THAT THE 1963 PICKETING AT SUPERIOR
WAS THE SAME AS THE 1962 PICKETING AT SUPERIOR, AND IF SUCH PROOF IS
FURNISHED, THE CHANCE THAT THE PICKETING SOUGHT TO BE ENJOINED CONCEALS
A SEC. 8(B)(4)(B) VIOLATION IS REMOTE.  P. 192. 

(C)  EVEN IF A SEC. 8(B)(4)(B) VIOLATION WERE PRESENT, THERE WOULD IN
THIS INSTANCE BE NO DANGER BY A STATE INJUNCTION TO INTERESTS SERVED BY
THE GARMON DOCTRINE SINCE THE WORKERS SOUGHT TO BE ORGANIZED ARE
OUTSIDE THE SCOPE OF THE ACT.  PP. 192-193. 

(D)  THE PRESENCE OF A SEC. 8(B)(4)(B) VIOLATION WOULD NOT RESULT IN
THE NLRB'S AFFORDING COMPLETE PROTECTION TO THE LEGITIMATE INTERESTS OF
THE STATE, AS THE PRIMARY PICKETING PROVISO OF SEC. 8(B)(4)(B) INHIBITS
THE USE OF THAT SECTION FULLY TO DEAL WITH THE CONDUCT COMPLAINED OF IN
THIS CASE.  P. 194. 

HANNA MINING CO. ET AL. V. DISTRICT 2, MARINE ENGINEERS BENEFICIAL
ASSOCIATION, AFL-CIO, ET AL. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE PRESENT CONTROVERSY ONCE AGAIN BRINGS BEFORE THE COURT THE
TROUBLESOME QUESTION OF WHERE LIES THE LINE BETWEEN PERMISSIBLE AND
FEDERALLY PREEMPTED STATE REGULATION OF UNION ACTIVITIES. 

I. 

PETITIONERS ("HANNA") ARE FOUR CORPORATIONS WHOSE INTEGRATED FLEET OF
GREAT LAKES VESSELS CARRIES CARGO IN INTERSTATE AND FOREIGN COMMERCE
AND IS OPERATED BY ONE OF THE FOUR, THE HANNA MINING COMPANY.  THE
RESPONDENT DISTRICT 2, MARINE ENGINEERS BENEFICIAL ASSOCIATION ("MEBA")
(FN1) REPRESENTED THE LICENSED MARINE ENGINEERS IN HANNA'S FLEET UNDER
A COLLECTIVE BARGAINING AGREEMENT TERMINATING ON JULY 15, 1962. 
ACCORDING TO HANNA, WHILE NEGOTIATIONS FOR A NEW CONTRACT CONTINUED
DURING AUGUST 1962, A MAJORITY OF THE MARINE ENGINEERS INFORMED HANNA
BY WRITTEN PETITIONS THAT THEY DID NOT WISH TO BE REPRESENTED BY MEBA. 
HANNA THEN DECLINED TO NEGOTIATE FURTHER UNTIL MEBA'S MAJORITY STATUS
WAS ESTABLISHED BY A SECRET BALLOT.  WITHOUT ACQUIESCING IN THIS
PROPOSAL OR QUESTIONING ANY OF THE EMPLOYEE SIGNATURES ON THE
PETITIONS, MEBA RESPONDED ON SEPTEMBER 12, 1962, BY PICKETING ONE OF
HANNA'S SHIPS UNLOADING AT A DOCK IN DULUTH, MINNESOTA, WITH SIGNS
GIVING THE SHIP'S NAME, STATING THAT HANNA UNFAIRLY REFUSED TO
NEGOTIATE WITH MEBA, AND INDICATING THAT NO DISPUTE EXISTED WITH ANY
OTHER EMPLOYER.  BECAUSE OF THE CONTINUED PICKETING, DOCK WORKERS
REFUSED DAY AFTER DAY TO UNLOAD THE SHIP.  FROM SEPTEMBER 12 UNTIL
SHIPPING ENDED FOR THE WINTER, MEBA SIMILARLY PICKETED HANNA SHIPS AT
OTHER GREAT LAKES PORTS, INCLUDING SUPERIOR, WISCONSIN. 

HANNA TURNED FIRST TO THE NATIONAL LABOR RELATIONS BOARD.  ON
SEPTEMBER 12, IT PETITIONED THE REGIONAL DIRECTOR AT CLEVELAND, OHIO,
TO HOLD A REPRESENTATION ELECTION AMONG HANNA'S ENGINEERS TO PROVE OR
DISPROVE MEBA'S MAJORITY STATUS.  THE PETITION WAS DISMISSED AT THE END
OF SEPTEMBER ON THE STATED GROUND THAT THE ENGINEERS WERE "SUPERVISORS"
UNDER SEC. 2(11) OF THE NATIONAL LABOR RELATIONS ACT, (FN2) AND
AUTOMATICALLY EXCLUDED FROM THE ACT'S DEFINITION OF "EMPLOYEES" UNDER
SEC. 2(3), (FN3) SO ELECTION PROCEEDINGS UNDER SEC. 9 WERE NOT
WARRANTED; (FN4) GIVING THE SAME REASON, THE BOARD IN NOVEMBER DECLINED
TO OVERTURN THIS DECISION.  (FN5)  AS A SECOND MEASURE, HANNA ON
SEPTEMBER 15, 1962, FILED CHARGES WITH THE REGIONAL DIRECTOR IN
MINNEAPOLIS, MINNESOTA, ALLEGING THAT MEBA HAD VIOLATED SEC. 8(B)(4)(B)
OF THE ACT, (FN6) BY INDUCING WORK STOPPAGES AMONG DOCKERS AT DULUTH
THROUGH IMPROPER SECONDARY PRESSURE.  IN OCTOBER, THE REGIONAL DIRECTOR
DISMISSED THE CHARGES AND THE GENERAL COUNSEL SUSTAINED THE DISMISSAL
IN DECEMBER, STATING THAT MEBA'S CONDUCT AT DULUTH AND AT OTHER SITES
INVESTIGATED DID NOT EXCEED THE BOUNDS OF LAWFUL PICKETING UNDER THE
BOARD'S STANDARDS.  (FN7)  HANNA'S THIRD AND LAST APPEAL TO THE BOARD
CAME ON SEPTEMBER 27, 1962, WHEN IT FILED CHARGES WITH THE REGIONAL
DIRECTOR IN CLEVELAND, OHIO, ACCUSING MEBA OF ORGANIZATIONAL OR
RECOGNITIONAL PICKETING IMPROPER UNDER SEC. 8(B)(7) OF THE ACT.  (FN8)
THE REGIONAL DIRECTOR DISMISSED THE CHARGE IN OCTOBER AND IN THE NEXT
TWO MONTHS THE GENERAL COUNSEL AFFIRMED THE DISMISSAL BECAUSE IN
SEEKING TO REPRESENT "SUPERVISORS" RATHER THAN "EMPLOYEES" MEBA FELL
OUTSIDE THE SECTION.  (FN9) 

WINTER BROUGHT AN END TO BOTH SHIPPING AND PICKETING FOR SEVERAL
MONTHS BUT WHEN THE NAVIGATION SEASON OPENED IN THE SPRING OF 1963 MEBA
PICKETS ONCE MORE APPEARED.  AFTER PICKETING OCCURRED AT SUPERIOR,
WISCONSIN, HANNA FILED SUIT ON JUNE 24, 1963, IN A WISCONSIN CIRCUIT
COURT.  THE COMPLAINT AND AFFIDAVITS ALLEGED THAT MEBA WAS PICKETING
HANNA'S VESSELS AT THE DOCKS OF THE GREAT NORTHERN RAILWAY COMPANY AT
SUPERIOR IN THE SAME MANNER AS THE 1962 PICKETING AND WITH THE SAME
IMPROPER AIM OF FORCING ITS REPRESENTATION ON UNWILLING ENGINEERS;
HANNA STATED THAT WORKERS OF OTHER EMPLOYERS WERE REFUSING TO RENDER
SERVICE TO HANNA'S VESSELS AND IT PRAYED FOR INJUNCTIVE RELIEF AGAINST
FURTHER PICKETING OF THE VESSELS AND THE DOCKS WHERE THEY BERTHED AND
AGAINST ANY OTHER ATTEMPT OF MEBA TO IMPOSE REPRESENTATION ON HANNA
ENGINEERS.  THE CIRCUIT COURT DISMISSED THE SUIT IN JULY FOR LACK OF
JURISDICTION OVER THE SUBJECT MATTER.  IN APRIL 1964 THE WISCONSIN
SUPREME COURT AFFIRMED THE DECISION.  23 WIS. 2D 433, 127 N.W.2D 393. 
WHILE AGREEING THAT THE PICKETING COULD BE DEEMED ILLEGAL UNDER
WISCONSIN LAW, (FN10) THAT COURT HELD THAT THE PICKETING ARGUABLY
VIOLATED SECS. 8(B)(4)(B) AND 8(B)(7) OF THE FEDERAL LABOR ACT AND SO
FELL WITHIN THE BOARD'S EXCLUSIVE JURISDICTION MARKED OUT IN SAN DIEGO
UNIONS V. GARMON, 359 U.S. 236.  IN LIGHT OF OTHER LANGUAGE IN GARMON
THE WISCONSIN SUPREME COURT HELD THAT THE GENERAL COUNSEL'S DISMISSAL
OF CHARGES UNDER SECS. 8(B)(4)(B) AND 8(B)(7) DID NOT FORECLOSE THE
POSSIBILITY OF A PREEMPTING VIOLATION, EVEN ASSUMING THE 1963 PICKETING
IN SUPERIOR MIRRORED THE 1962 PICKETING IN DULUTH.  WE INVITED THE
VIEWS OF THE UNITED STATES, 379 U.S. 942, GRANTED CERTIORARI, 380 U.S.
941, AND NOW REVERSE AND REMAND. 

                                       II. 

THE GROUND RULES FOR PREEMPTION IN LABOR LAW, EMERGING FROM OUR
GARMON DECISION, SHOULD FIRST BE BRIEFLY SUMMARIZED:  IN GENERAL, A
STATE MAY NOT REGULATE CONDUCT ARGUABLY "PROTECTED BY SEC. 7, OR
PROHIBITED BY SEC. 8" OF THE NATIONAL LABOR RELATIONS ACT, SEE 359
U.S., AT 244-246; AND THE LEGISLATIVE PURPOSE MAY FURTHER DICTATE THAT
CERTAIN ACTIVITY "NEITHER PROTECTED NOR PROHIBITED" BE DEEMED
PRIVILEGED AGAINST STATE REGULATION, CF. 359 U.S., AT 245.  FOR THE
REASONS THAT FOLLOW, WE BELIEVE THE BOARD'S DECISION THAT HANNA
ENGINEERS ARE SUPERVISORS REMOVES FROM THIS CASE MOST OF THE
OPPORTUNITIES FOR PREEMPTION. 

WHEN IN 1947 THE NATIONAL LABOR RELATIONS ACT WAS AMENDED TO EXCLUDE
SUPERVISORY WORKERS FROM THE CRITICAL DEFINITION OF "EMPLOYEES," SEC.
2(3), IT FOLLOWED THAT MANY PROVISIONS OF THE ACT EMPLOYING THAT
PIVOTAL TERM WOULD CEASE TO OPERATE WHERE SUPERVISORS WERE THE FOCUS OF
CONCERN.  MOST OBVIOUSLY, SEC. 7 NO LONGER BESTOWS UPON SUPERVISORY
EMPLOYEES THE RIGHTS TO ENGAGE IN SELF-ORGANIZATION, COLLECTIVE
BARGAINING, AND OTHER CONCERTED ACTIVITIES (FN11) UNDER THE UMBRELLA OF
SEC. 8 OF THE ACT, AS AMENDED, 61 STAT. 140, 29 U.S.C. SEC. 158 (1964
ED.).  SEE LABOR BOARD V. BUDD MFG. CO., 169 F.2D 571.  ACCORDINGLY,
ACTIVITY DESIGNED TO SECURE ORGANIZATION OR RECOGNITION OF SUPERVISORS
CANNOT BE PROTECTED BY SEC. 7 OF THE ACT, ARGUABLY OR OTHERWISE. 
COMPARE LABOR BOARD V. DRIVERS LOCAL UNION, 362 U.S. 274, 279. 
CORRESPONDINGLY, THE SITUATIONS IN WHICH THAT SAME ACTIVITY CAN BE
PROHIBITED BY THE ACT, EVEN ARGUABLY, ARE FEWER THAN WOULD BE THE CASE
IF EMPLOYEES WERE BEING ORGANIZED OR SEEKING RECOGNITION.  THERE CAN BE
NO BREACH OF SEC. 8(B)(7), CURTAILING ORGANIZATIONAL OR RECOGNITIONAL
PICKETING, BECAUSE THERE CANNOT EXIST THE FORBIDDEN OBJECTIVE OF
REQUIRING REPRESENTATION OF "EMPLOYEES" BY THE PICKETING ORGANIZATION. 
NOR COULD ONE EVEN ADVANCE THE ARGUMENT UNSUCCESSFULLY URGED IN DRIVERS
LOCAL UNION THAT SEC. 8(B)(1)(A), 61 STAT.  141, 29 U.S.C. SEC.
158(B)(1)(A)(1964 ED.), CONDEMNS THE PICKETING AS RESTRAINT OR COERCION
OF EMPLOYEES EXERCISING THEIR SEC. 7 RIGHT NOT TO ORGANIZE OR BARGAIN
COLLECTIVELY. 

EVEN THOUGH SUCH EFFORTS TO UNIONIZE SUPERVISORS ARE NOT PROTECTED BY
THE ACT, OR IN THE RESPECTS IMMEDIATELY RELEVANT PROHIBITED BY IT, THE
QUESTION ARISES WHETHER CONGRESS NONETHELESS DESIRED THAT IN THEIR
PEACEFUL FACETS THESE EFFORTS REMAIN FREE FROM STATE REGULATION AS WELL
AS BOARD AUTHORITY.   COMPARE TEAMSTERS UNION V. MORTON, 377 U.S. 252,
258-260.  ARGUING THAT THE STATES ARE INDEED POWERLESS IN THIS RESPECT,
MEBA PITCHES ITS CASE CHIEFLY ON THE 1947 AMENDMENT OF THE "EMPLOYEE"
DEFINITION AND ON THE CONCURRENT ENACTMENT OF SEC. 14(A) OF THE ACT, 61
STAT. 151, 29 U.S.C. SEC. 164(A)(1964 ED.), WHICH PROVIDES IN RELEVANT
PART THAT "NOTHING HEREIN SHALL PROHIBIT ANY INDIVIDUAL EMPLOYED AS A
SUPERVISOR FROM BECOMING OR REMAINING A MEMBER OF A LABOR ORGANIZATION
...  ."  IT IS CONTENDED THAT THE AMENDMENT AND THIS SECTION SIGNIFY A
FEDERAL POLICY OF LAISSEZ FAIRE TOWARD SUPERVISORS OUSTING STATE AS
WELL AS BOARD AUTHORITY AND, MORE PARTICULARLY, THAT TO ALLOW THE
WISCONSIN INJUNCTION WOULD OBLITERATE THE OPPORTUNITY FOR SUPERVISOR
UNIONS THAT CONGRESS EXPRESSLY RESERVED. 

THIS BROAD ARGUMENT FAILS UTTERLY IN LIGHT OF THE LEGISLATIVE
HISTORY, FOR THE COMMITTEE REPORTS REVEAL THAT CONGRESS' PROPELLING
INTENTION WAS TO RELIEVE EMPLOYERS FROM ANY COMPULSION UNDER THE ACT
AND UNDER STATE LAW TO COUNTENANCE OR BARGAIN WITH ANY UNION OF
SUPERVISORY EMPLOYEES.  (FN12) WHETHER THE LEGISLATORS FULLY REALIZED
THAT THEIR METHOD OF ACHIEVING THIS RESULT INCIDENTALLY FREED
SUPERVISORS' UNIONS FROM CERTAIN LIMITATIONS UNDER THE NEWLY ENACTED
SEC. 8(B) IS NOT WHOLLY CLEAR, BUT CERTAINLY CONGRESS MADE NO
CONSIDERED DECISION GENERALLY TO EXCLUDE STATE LIMITATIONS ON
SUPERVISORY ORGANIZING.  AS TO THE PORTION OF SEC. 14(A) QUOTED ABOVE,
SOME LEGISLATIVE HISTORY SUGGESTS THAT IT WAS NOT MEANT TO IMMUNIZE ANY
CONDUCT AT ALL BUT ONLY TO MAKE IT "CLEAR THAT THE AMENDMENTS TO THE
ACT DO NOT PROHIBIT SUPERVISORS FROM JOINING UNIONS  ...  ."  S. REP.
NO. 105, 80TH CONG., 1ST SESS., P. 28; H.R. CONF. REP. NO. 510, 80TH
CONG., 1ST SESS., P. 60 ("THE FIRST PART OF THIS PROVISION (SEC. 14(A))
WAS INCLUDED PRESUMABLY OUT OF AN ABUNDANCE OF CAUTION.").  HOWEVER,
EVEN ASSUMING THAT SEC. 14(A) ITSELF INTENDED ALSO TO MAKE IT CLEAR
THAT STATE LAW COULD NOT PROHIBIT SUPERVISORS FROM JOINING UNIONS, THE
BY A MINORITY UNION TO EXTRACT RECOGNITION BY FORCE OF SUCH PRESSURES
IS DECIDEDLY NOT A SINE QUA NON OF COLLECTIVE BARGAINING, AS INDEED ITS
LIMITATION BY SEC. 8(B)(7) IN NONSUPERVISOR SITUATIONS ATTESTS. 

THE REMAINING QUESTION IN THIS PHASE OF THE CASE IS WHETHER THE
SUPERVISORY STATUS OF HANNA'S ENGINEERS HAS BEEN SETTLED "WITH
UNCLOUDED LEGAL SIGNIFICANCE," GARMON, 359 U.S., AT 246, SO AS TO
PRECLUDE ARGUABLE APPLICATION OF THE ACT IN THE RESPECTS DISCUSSED.  WE
HOLD THAT THE BOARD'S STATEMENT ACCOMPANYING ITS REFUSAL TO ORDER A
REPRESENTATION ELECTION DOES RESOLVE THE QUESTION WITH THE CLARITY
NECESSARY TO AVOID PREEMPTION.  WHILE MEBA DOES NOT CONTEND THAT THE
BOARD ERRED IN ITS DETERMINATION, AN ABSTRACT DIFFICULTY ARISES FROM
THE LACK OF A STATUTORY CHANNEL FOR JUDICIAL REVIEW OF SUCH A BOARD
DECISION.  COMPARE HOTEL EMPLOYEES V. LEEDOM, 358 U.S. 99 (EQUITY
ACTION TO OBTAIN ELECTION).  HOWEVER, THE USUAL DEFERENCE TO BOARD
EXPERTISE IN APPLYING STATUTORY TERMS TO PARTICULAR FACTS ASSURES THAT
ITS DECISION WOULD IN ANY EVENT BE RESPECTED IN A HIGH PERCENTAGE OF
INSTANCES, AND SO DIMINISHED A RISK OF INTERFERENCE WITH FEDERAL LABOR
POLICY DOES NOT JUSTIFY USE OF THE PREEMPTION DOCTRINE TO THWART STATE
REGULATION BOUND TO BE LEGITIMATE ON THIS SCORE IN ALMOST ALL CASES. 

                    III. 

A FURTHER BASIS FOR PREEMPTION, URGED BY MEBA AND ADOPTED BY THE
WISCONSIN SUPREME COURT IS THAT THE PICKETING AT SUPERIOR EXERTED
SECONDARY PRESSURE ARGUABLY VIOLATING SEC. 8(B)(4)(B).  THE ARGUMENT
APPEARS TO BE THAT A STATE INJUNCTION BANISHING THE PICKETS INEVITABLY
IMPINGES UPON THE BOARD'S AUTHORITY TO REGULATE FACETS OF THE PICKETING
THAT MIGHT EXCEED "PRIMARY" PICKETING AND VIOLATE SEC. 8(B)(4)(B)
(FN13) - FACETS NEVER SPECIFIED BY MEBA BUT PRESUMABLY THOSE THAT
IGNORE THE BOARD'S LIMITATIONS ON TIME, LOCATION, AND MANNER OF COMMON
SITUS PICKETING.  SEE SAILORS' UNION OF THE PACIFIC (MOORE DRY DOCK),
92 N.L.R.B. 547.  HOWEVER, AS WILL APPEAR, NO ARGUABLE VIOLATION EXISTS
IF HANNA'S PROOF LIVES UP TO ITS ALLEGATIONS; FURTHER, EVEN ASSUMING A
VIOLATION, FEDERAL INTERESTS NORMALLY JUSTIFYING PREEMPTION ARE ABSENT
FROM THIS CASE. 

HANNA'S CLAIM THAT THERE IS NO ARGUABLE VIOLATION RESTS, OF COURSE, ON
THE FINDING MADE BY THE REGIONAL DIRECTOR AND THE GENERAL COUNSEL IN
DECLINING TO ISSUE A COMPLAINT UNDER SEC. 8(B)(4)(B) WITH RESPECT TO
MEBA'S 1962 PICKETING.  THE WISCONSIN SUPREME COURT REFUSED TO CREDIT
THIS FINDING BECAUSE OF THIS COURT'S COMMENT IN GARMON THAT THE
"REFUSAL OF THE GENERAL COUNSEL TO FILE A CHARGE" IS ONE OF THOSE
DISPOSITIONS "WHICH DOES NOT DEFINE THE NATURE OF THE ACTIVITY WITH
UNCLOUDED LEGAL SIGNIFICANCE."  359 U.S., AT 245-246.  THIS LANGUAGE
ALLOWS MORE THAN ONE INTERPRETATION, BUT WE TAKE IT NOT TO APPLY TO
THOSE REFUSALS OF THE GENERAL COUNSEL WHICH ARE ILLUMINATED BY
EXPLANATIONS THAT DO SQUARELY DEFINE THE NATURE OF THE ACTIVITY.  THE
GENERAL COUNSEL HAS STATUTORY "FINAL AUTHORITY, ON BEHALF OF THE BOARD,
IN RESPECT OF THE INVESTIGATION OF CHARGES AND ISSUANCE OF COMPLAINTS,"
SEC. 3(D) OF THE ACT, AS AMENDED, 61 STAT. 139, 29 U.S.C. SEC. 153(D)
(1964 ED.), AND HIS PRONOUNCEMENTS IN THIS CONTEXT ARE ENTITLED TO
GREAT WEIGHT.  THE USUAL INABILITY OF THE CHARGING PARTY TO CONTEST THE
GENERAL COUNSEL'S ADVERSE DECISION IN THE COURTS, SEE HOURIHAN V. LABOR
BOARD, 91 U.S. APP. D.C. 316, 201 F.2D 187, DOES TO BE SURE CREATE A
SLIGHT RISK IF STATE COURTS MAY PROCEED ON THIS BASIS, BUT IN THE
CONTEXT OF THIS CASE WE BELIEVE THE RISK IS TOO MINIMAL TO DESERVE
RECOGNITION.    EVEN TAKING THE GENERAL COUNSEL'S RULING AT FACE VALUE,
MEBA STRESSES THAT THE SEC.  8(B)(4)(B) CHARGE BY HANNA CONCERNED
PICKETING IN DULUTH IN SEPTEMBER 1962 WHILE THE PICKETING BEFORE THE
WISCONSIN COURT OCCURRED AT SUPERIOR IN SPRING 1963.  YET HANNA
ACCOMPANIED THE 1962 CHARGE WITH INFORMATION AS TO THE 1962 PICKETING
IN SEVERAL PORTS INCLUDING SUPERIOR.  THE REGIONAL DIRECTOR IS SAID TO
HAVE CONDUCTED AN INVESTIGATION IN SUPERIOR AS WELL AS IN DULUTH, AND
THE GENERAL COUNSEL'S LETTER ON THE SEC. 8(B)(4)(B) CHARGE APPEARED TO
STATE THAT ACTIVITY AT THE SITES OTHER THAN DULUTH ALSO DID NOT VIOLATE
THE ACT.  SEE N. 7, SUPRA.  AND WHILE SOME MONTHS INTERVENED BETWEEN
THE FALL 1962 PICKETING AT SUPERIOR AND ITS RESUMPTION AT THAT PORT IN
SPRING 1963, HANNA HAS OFFERED TO PROVE THAT THE PICKETING REMAINED THE
SAME IN ALL SIGNIFICANT RESPECTS INCLUDING THE PICKET SIGNS EMPLOYED,
THE LOCATION OF THE PICKETS, AND THE PICKETS' GENERAL BEHAVIOR.  IF
THIS PROOF IS FURNISHED, THE CHANCE THAT THE PICKETING SOUGHT TO BE
ENJOINED CONCEALS A SEC. 8(B)(4)(B) VIOLATION SEEMS REMOTE INDEED. 

ADDITIONALLY, EVEN IF A SEC. 8(B)(4)(B) VIOLATION WERE PRESENT,
CENTRAL INTERESTS SERVED BY THE GARMON DOCTRINE ARE NOT ENDANGERED BY A
STATE INJUNCTION WHEN, IN AN INSTANCE SUCH AS THIS, THE BOARD HAS
ESTABLISHED THAT THE WORKERS SOUGHT TO BE ORGANIZED ARE OUTSIDE THE
REGIME OF THE ACT.  CF. INCRES S.S.CO. V. MARITIME WORKERS, 372 U.S.
24.  MOST IMPORTANTLY, THE BOARD'S DECISION ON THE SUPERVISORY QUESTION
DETERMINES, AS WE HAVE ALREADY SHOWN, THAT NONE OF THE CONDUCT IS
ARGUABLY PROTECTED NOR DOES IT FALL IN SOME MIDDLE RANGE IMPLIEDLY
WITHDRAWN FROM STATE CONTROL.  (FN14) CONSEQUENTLY, THERE IS WHOLLY
ABSENT THE GREATEST THREAT AGAINST WHICH THE GARMON DOCTRINE GUARDS, A
STATE'S PROHIBITION OF ACTIVITY THAT THE ACT INDICATES MUST REMAIN
UNHAMPERED.  (FN15) 

NOR IS THIS A CASE IN WHICH THE PRESENCE OF ARGUABLY PROHIBITED
ACTIVITY MAY PERMIT THE BOARD TO AFFORD COMPLETE PROTECTION TO THE
LEGITIMATE INTERESTS ADVANCED BY THE STATE.  SINCE HANNA AS THE PRIMARY
EMPLOYER IS PRESENT AT THE PICKETED SITUS, THE PRIMARY PICKETING
PROVISO OF SEC. 8(B)(4)(B) SEVERELY INHIBITS THE BOARD'S USE OF THAT
SECONDARY EMPLOYERS THAT FOLLOWS FROM THE MERE PRESENCE OF THE PICKETS
AT A COMMON SITUS.  SECTION 8(B)(7) WHICH MIGHT PROVIDE FULL RELIEF IS
RENDERED INAPPLICABLE BY THE SUPERVISOR RULING.  THUS, SO FAR AS GARMON
MAY PROCEED ON THE VIEW THAT THE OPPORTUNITY BELONGS TO THE BOARD
WHEREVER IT AND THE STATE OFFER DUPLICATE RELIEF, IT HAS LIMITED
APPLICATION TO THE PRESENT FACTS.  (FN16) 

IN CONCLUDING THAT THE ACT DOES NOT PREEMPT THE STATE'S AUTHORITY TO
QUENCH THE PICKETING SAID TO HAVE OCCURRED IN THIS CASE, WE DO NOT
RETREAT FROM GARMON.  RATHER, WE CONSIDER THAT NEITHER THE TERMS NOR
THE POLICIES OF THAT DECISION JUSTIFY ITS EXTENSION TO THE PRESENT
FACTS, AN EXTENSION PRODUCING UNTOWARD RESULTS NOTED BY THE WISCONSIN
SUPREME COURT ITSELF.  23 WIS. 2D 433, 446, 127 N.W.2D 393, 399. 

THE JUDGMENT OF THE SUPREME COURT OF WISCONSIN IS REVERSED AND THE
CASE IS REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  THE REMAINING RESPONDENTS ARE OFFICERS, AGENTS, AND
REPRESENTATIVES OF MEBA, AND WHAT IS SAID OF IT IN THIS OPINION APPLIES
EQUALLY TO THEM. 

FN2  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 2(11), 61 STAT.
138, 29 U.S.C.  SEC. 152(11)(1964 ED.), GIVES A FUNCTIONAL DEFINITION
OF THE TERM "SUPERVISOR." 

FN3  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 2(3), 61 STAT.
137, 29 U.S.C.  SEC. 152(3)(1964 ED.), PROVIDES IN RELEVANT PART THAT
THE "TERM 'EMPLOYEE'  ...  SHALL NOT INCLUDE  ... ANY INDIVIDUAL
EMPLOYED AS A SUPERVISOR  ...  ." 

FN4  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 9, 61 STAT. 143,
29 U.S.C. SEC. 159 (1964 ED.), PERTINENTLY PROVIDES IN SUBSECTION (C)
THAT PETITIONS MAY BE ENTERTAINED AND ELECTIONS ORDERED TO DETERMINE
"THE REPRESENTATIVE DEFINED IN SUBSECTION (A) OF THIS SECTION"; AND
SUBSECTION (A) PERTINENTLY PROVIDES THAT "REPRESENTATIVES DESIGNATED OR
SELECTED  ...  BY THE MAJORITY OF THE EMPLOYEES IN A UNIT  ... SHALL BE
THE EXCLUSIVE REPRESENTATIVES OF ALL THE EMPLOYEES IN SUCH UNIT" FOR
COLLECTIVE BARGAINING PURPOSES. 

FN5  IN RELEVANT PART THE BOART'S LETTER STATED THAT AS THE "APPEAL
MAKES NO AFFIRMATIVE CLAIM THAT A MAJORITY OF THE 'EMPLOYEES' AS
DISTINGUISHED FROM 'SUPERVISORS' ARE SOUGHT TO BE REPRESENTED IN AN
APPROPRIATE UNIT AND AS A UNIT OF SUPERVISORS IS OTHERWISE
INAPPROPRIATE, NO QUESTION CONCERNING REPRESENTATION IN AN APPROPRIATE
UNIT EXISTS."  WHILE THIS PRONOUNCEMENT COULD BE CLEARER, THE PARTIES
DO NOT DISPUTE THAT IT AFFIRMS OR REFUSES TO DISTURB THE REGIONAL
DIRECTOR'S EXPLICIT FINDING. 

FN6  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 8(B)(4)(B), 73
STAT. 542, 29 U.S.C.  SEC. 158(B)(4)(B)(1964 ED.), PROVIDES IN RELEVANT
PART THAT IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS" 

"(4)(I)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO  ...  TRANSPORT, OR OTHERWISE HANDLE OR WORK ON ANY
GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM ANY SERVICES
...  WHERE  ...  AN OBJECT THEREOF IS: 

     *         *         *   *         * 

"(B)  FORCING OR REQUIRING ANY PERSON TO CEASE  ...  HANDLING,
TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY OTHER
PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING BUSINESS WITH
ANY OTHER PERSON, OR FORCING OR REQUIRING ANY OTHER EMPLOYER TO
RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE REPRESENTATIVE OF
HIS EMPLOYEES UNLESS  ... CERTIFIED  ...  .  PROVIDED, THAT NOTHING
CONTAINED IN THIS CLAUSE (B) SHALL BE CONSTRUED TO MAKE UNLAWFUL, WHERE
NOT OTHERWISE UNLAWFUL, ANY PRIMARY STRIKE OR PRIMARY PICKETING." 

FN7 THE LETTER FROM THE GENERAL COUNSEL'S OFFICE STATED IN PART: 

"THE EVIDENCE REVEALED THAT THE PICKETING BY MEBA AT THE COMMON SITUS
HEREIN CONFORMED TO MOORE DRY DOCK STANDARDS  ...  . FURTHERMORE,
MEBA'S ACTIVITY AT OTHER SITES DID NOT EVINCE AN UNLAWFUL OBJECT ON THE
PART OF THE UNION INCONSISTENT WITH THE OSTENSIBLY PRIMARY OBJECT OF
THE PICKETING AT THE SITUS OF THE DISPUTE." 

FN8  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 8(B)(7), 73 STAT.
544, 29 U.S.C.  SEC. 158(B)(7)(1964 ED.), PROVIDES, EXCLUDING PORTIONS
AND EXCEPTIONS NOT HERE RELEVANT, THAT IT IS AN UNFAIR LABOR PRACTICE
FOR A LABOR ORGANIZATION OR ITS AGENTS TO PICKET ANY EMPLOYER WITH AN
OBJECT OF FORCING "AN EMPLOYER TO RECOGNIZE OR BARGAIN WITH A LABOR
ORGANIZATION AS THE REPRESENTATIVE OF HIS EMPLOYEES, OR FORCING OR
REQUIRING THE EMPLOYEES OF AN EMPLOYER TO ACCEPT OR SELECT SUCH LABOR
ORGANIZATION" AS THEIR BARGAINING AGENT UNLESS SUCH LABOR ORGANIZATION
IS CERTIFIED OR SEEKS CERTIFICATION. 

FN9  A SECOND, CLARIFYING LETTER FROM THE GENERAL COUNSEL'S OFFICE
STATED IN PART:  "OUR DISPOSITION OF THIS CASE WAS PREDICATED SOLELY ON
OUR CONCLUSION THAT THE SUPERVISORY STATUS OF THE LICENSED ENGINEERS
PRECLUDED A FINDING THAT THE UNION'S PICKETING AND OTHER ACTIVITY WAS
FOR AN OBJECT PROSCRIBED BY SECTION 8(B)(7) OF THE ACT." 

FN10  SEE VOGT, INC. V. INTERNATIONAL BROTHERHOOD, 270 WIS. 321A, 74
N.W.2D 749, AFF'D SUB NOM. TEAMSTERS UNION V. VOGT, INC., 354 U.S.
284. 

FN11  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 7, 61 STAT. 140,
29 U.S.C. SEC 157 (1964 ED.), PROVIDES THAT "EMPLOYEES" SHALL HAVE THE
RIGHT TO ENGAGE IN, OR IN GENERAL TO REFRAIN FROM, THE MENTIONED
ACTIVITIES. 

FN12 SUMMARIZING THE IMPACT OF THE NEW MEASURE ON SUPERVISORY
PERSONNEL, THE SENATE REPORT STATED:  "THE BILL DOES NOT PREVENT ANYONE
FROM ORGANIZING NOR DOES IT PROHIBIT ANY EMPLOYER FROM RECOGNIZING A
UNION OF FOREMEN.  IT MERELY RELIEVES EMPLOYERS WHO ARE SUBJECT TO THE
NATIONAL ACT FREE FROM ANY COMPULSION BY THIS NATIONAL BOARD OR ANY
LOCAL AGENCY TO ACCORD TO THE FRONT LINE OF MANAGEMENT THE ANOMALOUS
STATUS OF EMPLOYEES."  S. REP. NO. 105, 80TH CONG., 1ST SESS., P. 5. 
SEE ALSO H.R. REP. NO. 245, 80TH CONG., 1ST SESS., PP. 13-17. 

FN13  BY CONTRAST, SOMETIMES OFFENSIVE CONDUCT MAY BE RESTRAINED BY A
STATE REMEDY THAT HAS NO IMPACT AT ALL ON RELATED ACTIVITY ARGUABLY
WITHIN THE BOARD'S EXCLUSIVE PROVINCE.  SEE, E.G., YOUNGDAHL V.
RAINFAIR, INC., 355 U.S. 131, UPHOLDING A STATE INJUNCTION AGAINST
VIOLENCE BUT SETTING IT ASIDE SO FAR AS IT REACHED PEACEFUL PICKETING. 

FN14  ASIDE FROM THE SEC. 14(A) LINE OF ARGUMENT ALREADY ANSWERED, WE
DO NOT FIND AT ALL APPOSITE TEAMSTERS UNION V. MORTON, 377 U.S. 252,
HOLDING A STATE POWERLESS TO AWARD DAMAGES AGAINST A STRIKING UNION FOR
REQUESTING A SECONDARY EMPLOYER TO CEASE BUSINESS WITH THE STRUCK
EMPLOYER.  WHILE IN MORTON PREEMPTION WAS PREMISED ON THE FACT THAT THE
SECONDARY PRESSURE DID NOT COME WITHIN THE BAN FIXED BY SEC. 8(B)(4)(B)
AND ADOPTED BY SEC. 303(A) OF THE LABOR MANAGEMENT RELATIONS ACT, AS
AMENDED, 73 STAT. 545, 29 U.S.C.  SEC. 187(A)(1964 ED.), THE CONDUCT
THERE OCCURRED IN THE CONTEXT OF A PEACEFUL ECONOMIC STRIKE BY
EMPLOYEES, A SPHERE IN WHICH THE FEDERAL INTEREST IS ESPECIALLY
PERVASIVE.  BY CONTRAST THE PRESENT CASE, INVOLVING SECONDARY PRESSURE
WIELDED TO IMPOSE REPRESENTATION ON UNWILLING SUPERVISORS, FINDS ITSELF
AT THAT FAR CORNER OF LABOR LAW WHERE, AS WE HAVE SHOWN, FEDERAL
OCCUPATION IS AT A MINIMUM AND STATE POWER AT A PEAK. 

FN15  HATTIESBURG UNIONS V. BROOME CO., 377 U.S. 126, CITED TO US BY
MEBA, MAY ILLUSTRATE THIS CONCERN.  THERE, THE UNION'S ORGANIZATIONAL
PICKETING AT A COMMON SITUS WAS ENJOINED BY THE STATE BECAUSE ITS
OBJECTIVE VIOLATED STATE LAW.  IN URGING THAT THE PICKETING'S POSSIBLE
VIOLATION OF SEC. 8(B)(4)(B) PREEMPTED STATE AUTHORITY, THE SOLICITOR
GENERAL SUGGESTED THAT IT MAY ALSO HAVE BEEN "LAWFUL PICKETING" OUTSIDE
THE STATE'S REACH SO FAR AS NOT PROHIBITED BY THE SECTION.  MEMORANDUM,
P. 6, N. 7.  SEE ALSO MICHELMAN, STATE POWER TO GOVERN CONCERTED
EMPLOYEE ACTIVITIES, 74 HARV. L. REV. 641, 652-653 (1961) (CITATIONS
OMITTED):  "A STATE GENERALLY MAY NOT ENJOIN CONDUCT THOUGHT TO BE A
FEDERAL UNFAIR LABOR PRACTICE.  THE REASON IS THAT, DESPITE THE STATE
COURT'S CONTRARY BELIEF, THE CONDUCT MAY, AS A MATTER OF FEDERAL LAW,
BE PRIVILEGED." 

FN16  IN MARINE ENGINEERS V. INTERLAKE CO., 370 U.S. 173, WE
OVERTURNED A STATE BAN ON PICKETING ARGUABLY VIOLATING SEC. 8(B)(4)(B);
AND TO THE COUNTERARGUMENT THAT THE PICKETING GROUP WAS NOT A "LABOR
ORGANIZATION" SUBJECT TO SEC. 8(B), WE POINTED OUT THAT THIS DECISION
WAS FOR THE BOARD.  UNLIKE THE PRESENT CASE, IN INTERLAKE THE SEC.
8(B)(4)(B) REMEDY HAD NOT BEEN TRIED; BUT QUITE APART FROM THAT
CONSIDERATION, HAD THE BOARD HELD THE UNION A "LABOR ORGANIZATION" AND
ALSO HELD THOSE BEING ORGANIZED TO BE "EMPLOYEES" - ANOTHER POINT NOT
RECENTLY DECIDED BY THE BOARD - COMPLETE RELIEF AGAINST THE PICKETING
MIGHT WELL HAVE BEEN AVAILABLE UNDER SEC. 8(B)(7).  SEE 370 U.S., AT
182-183. 

MR. JUSTICE BRENNAN, CONCURRING. 

I AGREE WITH THE COURT THAT SEC. 14(A) DOES NOT EVINCE A
CONGRESSIONAL DECISION TO EXCLUDE STATE REGULATION OF PICKETING AIMED
AT ORGANIZING SUPERVISORS AND SECURING THE EMPLOYER'S RECOGNITION OF
THE UNION.  THE QUESTION HERE, HOWEVER, IS WHETHER CONGRESS HAS
EXCLUDED STATE REGULATION WHEN THAT PICKETING ALSO HAS SECONDARY
ASPECTS ARGUABLY WITHIN THE REACH OF SEC. 8(B)(4)(B).  I AGREE WITH THE
COURT THAT STATE REGULATION IS LIKEWISE NOT PRECLUDED IN SUCH CASE. 

THE PROVISO TO SEC. 8(B)(4)(B) EXPRESSLY STATES "THAT NOTHING
CONTAINED IN THIS CLAUSE (B) SHALL BE CONSTRUED TO MAKE UNLAWFUL, WHERE
NOT OTHERWISE UNLAWFUL, ANY PRIMARY STRIKE OR PRIMARY PICKETING." 
WHILE CONGRESS THUS PROVIDED THAT PRIMARY PICKETING IS NOT RENDERED
UNLAWFUL UNDER THE ACT MERELY BY HAVING SECONDARY ASPECTS, THE
ITALICIZED WORDS OF THE PROVISO EVINCE A CONGRESSIONAL INTENTION TO
LEAVE UNDISTURBED WHATEVER OTHER PROVISIONS OF LAW REGULATE PRIMARY
PICKETING.  ORDINARILY SUCH REGULATION OCCURS UNDER THE NATIONAL LABOR
RELATIONS ACT.  THE PRIMARY ASPECTS OF SUPERVISORY PICKETING ARE NOT,
HOWEVER, REGULATED BY THE FEDERAL ACT; AND I THINK THE ASSUMPTION THAT
REGULATION WILL OCCUR, WHICH UNDERLIES THE ITALICIZED WORDS OF THE
PROVISO, IS STRONG ENOUGH TO SUPPORT THE COURT'S CONCLUSION THAT STATE
REGULATION OF SUPERVISORY ORGANIZATIONAL PICKETING IS NOT PREEMPTED.* 

*IT COULD BE ARGUED THAT THIS ASSUMPTION SUPPORTS A SCOPE OF STATE
REGULATION NO BROADER THAN THAT ORDINARILY PROVIDED BY THE FEDERAL
ACT.  IT IS NOT NECESSARY TO RESOLVE THAT ARGUMENT HERE. 

IT IS TRUE THAT WE SAID IN GARMON THAT STATES HAVE NO POWER TO
REGULATE "ACTIVITIES" ARGUABLY SUBJECT TO THE FEDERAL ACT; PICKETING
WHICH, BECAUSE OF ITS SECONDARY ASPECTS, IS ARGUABLY SUBJECT TO SEC.
8(B)(4)(B) IS, BY ONE CONSTRUCTION, AN "ACTIVITY."  BUT GARMON WAS NOT
A CASE IN WHICH ONLY INCIDENTAL ASPECTS OF PICKETING WERE ARGUABLY
SUBJECT TO FEDERAL POWER AND IN WHICH THE ALTERNATIVE TO STATE
REGULATION WAS A REGULATORY VOID WHICH CONGRESS PLAINLY ASSUMED WOULD
NOT EXIST.  IN THIS LIMITED CONTEXT, IT IS PERMISSIBLE TO DISTINGUISH
THE PRIMARY FROM THE SECONDARY ASPECTS OF THE PICKETING, AND HOLD THAT
THE STATES MAY REGULATE THE FORMER, ALTHOUGH PREEMPTED AS TO THE
LATTER, AND ALTHOUGH THE NECESSARY EFFECT OF REGULATION CURBS BOTH
SECONDARY AND PRIMARY ASPECTS OF THE PICKETING.  THIS CHOICE SEEMS MORE
CONSISTENT WITH THE CONGRESSIONAL MEANING, SINCE THE ALTERNATIVE IS TO
IMMUNIZE THE PRIMARY ASPECTS OF SUCH COMMON-SITUS PICKETING FROM STATE
REGULATION, AND THAT ALTERNATIVE FINDS NO SUPPORT EITHER IN POLICY OR
IN THE STATUTE.  THUS, I THINK THAT THE WISCONSIN COURTS MAY CONSIDER
SO MUCH OF THE COMPLAINT AS IS ADDRESSED TO THE PRIMARY ASPECTS OF
MEBA'S PICKETING. 
..END :
























UNITED STATES V. HUCK 382 U.S. 197 


NO. 8.  ARGUED NOVEMBER 15, 1965.  - DECIDED DECEMBER 6, 1965.  - 227 F.
SUPP. 791, AFFIRMED. 


UNITED STATES V. HUCK MANUFACTURING CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

PER CURIAM. 

JUDGMENT AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














ROGERS V. PAUL 382 U.S. 198 


NO. 532.  DECIDED DECEMBER 6, 1965.  - CERTIORARI GRANTED; 345 F.2D 117,
VACATED AND REMANDED. 


THIS CLASS ACTION TO EFFECT PUPIL AND FACULTY DESEGRAGATION OF THE
FORT SMITH, ARKANSAS, HIGH SCHOOLS WAS BROUGHT SEVERAL YEARS AGO BY
PETITIONERS, TWO NEGRO STUDENTS.  THE COURTS BELOW REFUSED TO ORDER
RESPONDENTS TO TRANSFER PETITIONERS OR TO ORDER IMMEDIATE DESEGREGATION
OF THE HIGH SCHOOLS AND IT WAS ALSO HELD THAT PETITIONERS HAD NO
STANDING TO CHALLENGE RACIAL FACULTY ALLOCATION.  SINCE ONE OF THE
STUDENTS HAD GRADUATED DURING THE PENDENCY OF THE SUIT, AND THE OTHER
HAD REACHED THE 12TH GRADE, TWO OTHER NEGRO STUDENTS, ONE IN THE 10TH
GRADE AND THE OTHER IN THE 11TH GRADE, MOVED IN THIS COURT TO BE ADDED
AS PARTY PLAINTIFFS.  HELD: 

1.  THE MOTION TO ADD PARTIES IS GRANTED. 

2.  THE ASSIGNMENT OF PETITIONERS TO A NEGRO HIGH SCHOOL ON THE BASIS
OF RACE IS CONSTITUTIONALLY PROHIBITED, BOTH FOR THE REASONS STATED IN
BROWN V. BOARD OF EDUCATION, 347 U.S. 483, AND BECAUSE PETITIONERS ARE
PREVENTED FROM TAKING COURSES OFFERED ONLY AT ANOTHER SCHOOL LIMITED TO
WHITE STUDENTS.  PENDING IMMEDIATE DESEGREGATION OF THE HIGH SCHOOLS
ACCORDING TO A GENERAL PLAN, PETITIONERS AND THOSE SIMILARLY SITUATED
SHALL BE ALLOWED IMMEDIATE TRANSFER TO THE HIGH SCHOOL FROM WHICH THEY
WERE EXCLUDED BECAUSE OF RACE AND WHICH HAS THE MORE EXTENSIVE
CURRICULUM. 

3.  UNDER TWO THEORIES, THE FIRST OF WHICH PLAINLY APPLIES, STUDENTS
NOT YET IN DESEGREGATED GRADES WOULD HAVE STANDING TO CHALLENGE RACIAL
FACULTY ALLOCATION:  SUCH ALLOCATION (A) OF ITSELF DENIES THEM EQUALITY
OF EDUCATIONAL OPPORTUNITY; AND (B) RENDERS INADEQUATE AN OTHERWISE
CONSTITUTIONAL PUPIL DESEGREGATION PLAN SOON TO BE APPLIED TO THEIR
GRADES. 

ROGERS ET AL. V. PAUL ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT AND THE MOTION TO ADD PARTIES ARE GRANTED.  THE JUDGMENT
OF THAT COURT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

1.  THIS CLASS ACTION TO DESEGREGATE THE PUBLIC HIGH SCHOOLS OF FORT
SMITH, ARKANSAS, WAS COMMENCED SEVERAL YEARS AGO IN THE NAME OF TWO
NEGRO STUDENTS.  ONE OF THE STUDENTS HAS SINCE GRADUATED AND THE OTHER
HAS ENTERED THE LAST HIGH SCHOOL GRADE.  A  MOTION TO ADD PARTIES IS
MADE ON BEHALF OF TWO ADDITIONAL NEGRO STUDENTS.  IT IS ALLEGED
THEREIN, AND NOT DENIED BY RESPONDENTS, THAT THESE STUDENTS ARE IN THE
10TH AND 11TH GRADES OF HIGH SCHOOL AND THAT THEY ARE MEMBERS OF THE
CLASS REPRESENTED, SEEKING THE SAME RELIEF FOR ALL THE REASONS OFFERED
BY THE ORIGINAL PARTY PLAINTIFFS.  THAT MOTION IS ACCORDINGLY GRANTED. 

2.  THE DESEGREGATION PLAN ADOPTED IN 1957 DESEGRAGATES ONLY ONE
GRADE A YEAR AND THE 10TH, 11TH AND 12TH HIGH SCHOOL GRADES ARE STILL
SEGREGATED.  THE STUDENTS WHO ARE PETITIONERS HERE WERE ASSIGNED TO A
NEGRO HIGH SCHOOL ON THE BASIS OF THEIR RACE.*  THOSE ASSIGNMENTS ARE
CONSTITUTIONALLY FORBIDDEN NOT ONLY FOR THE REASONS STATED IN BROWN V.
BOARD OF EDUCATION, 347 U.S. 483, BUT ALSO BECAUSE PETITIONERS ARE
THEREBY PREVENTED FROM TAKING CERTAIN COURSES OFFERED ONLY AT ANOTHER
HIGH SCHOOL LIMITED TO WHITE STUDENTS, SEE MISSOURI EX REL.  GAINES V.
CANADA, 305 U.S. 337; SIPUEL V. BOARD OF REGENTS, 332 U.S. 631; SWEATT
V. PAINTER, 339 U.S. 629.  PETITIONERS ARE ENTITLED TO IMMEDIATE
RELIEF; WE HAVE EMPHASIZED THAT "DELAYS IN DESEGREGATING SCHOOL SYSTEMS
ARE NO LONGER TOLERABLE."  BRADLEY V. SCHOOL BOARD, ANTE, P. 103, AT
105.  PENDING THE DESEGREGATION OF THE PUBLIC HIGH SCHOOLS OF FORT
SMITH ACCORDING TO A GENERAL PLAN CONSISTENT WITH THIS PRINCIPLE,
PETITIONERS AND THOSE SIMILARLY SITUATED SHALL BE ALLOWED IMMEDIATE
TRANSFER TO THE HIGH SCHOOL THAT HAS THE MORE EXTENSIVE CURRICULUM AND
FROM WHICH THEY ARE EXCLUDED BECAUSE OF THEIR RACE. 

*THE CONSTITUTIONAL ADEQUACY OF THE METHOD CHOSEN FOR ASSIGNING
STUDENTS TO THE SCHOOLS FOR PURPOSE OF DESEGREGATING THE LOWER GRADES
IS NOT BEFORE US, AND THE METHOD CONTEMPLATED FOR THE HIGH SCHOOLS IS
NOT PART OF THE RECORD. 

3.  FROM THE OUTSET OF THESE PROCEEDINGS PETITIONERS HAVE CHALLENGED
AN ALLEGED POLICY OF RESPONDENTS OF ALLOCATING FACULTY ON A RACIAL
BASIS.  THE DISTRICT COURT TOOK THE VIEW THAT PETITIONERS WERE WITHOUT
STANDING TO CHALLENGE THE ALLEGED POLICY, AND ACCORDINGLY REFUSED TO
PERMIT ANY INQUIRY INTO THE MATTER.  THE COURT OF APPEALS SUSTAINED
THIS RULING, HOLDING THAT ONLY STUDENTS PRESENTLY IN DESEGREGATED
GRADES WOULD HAVE THE STANDING TO MAKE THAT CHALLENGE.  345 F.2D 117,
125.   WE DO NOT AGREE AND REMAND FOR A PROMPT EVIDENTIARY HEARING ON
THIS ISSUE. 

EVEN THE COURT OF APPEALS' REQUIREMENT FOR STANDING WOULD BE MET ON
REMAND SINCE PETITIONERS' TRANSFER TO THE WHITE HIGH SCHOOL WOULD
DESEGREGATE THEIR GRADES TO THAT LIMITED EXTENT.  MOREOVER, WE REJECT
THE COURT OF APPEALS' VIEW OF STANDING AS BEING UNDULY RESTRICTIVE. 
TWO THEORIES WOULD GIVE STUDENTS NOT YET IN DESEGREGATED GRADES
SUFFICIENT INTEREST TO CHALLENGE RACIAL ALLOCATION OF FACULTY:  (1)
THAT RACIAL ALLOCATION OF FACULTY DENIES THEM EQUALITY OF EDUCATIONAL
OPPORTUNITY WITHOUT REGARD TO SEGREGATION OF PUPILS; AND (2) THAT IT
RENDERS INADEQUATE AN OTHERWISE CONSTITUTIONAL PUPIL DESEGREGATION PLAN
SOON TO BE APPLIED TO THEIR GRADES.  SEE BRADLEY V. SCHOOL BOARD,
SUPRA.  PETITIONERS PLAINLY HAD STANDING TO CHALLENGE RACIAL ALLOCATION
OF FACULTY UNDER THE FIRST THEORY AND THUS THEY WERE IMPROPERLY DENIED
A HEARING ON THIS ISSUE.  VACATED AND REMANDED. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE WHITE AND MR.
JUSTICE FORTAS WOULD SET THE CASE DOWN FOR ARGUMENT AND PLENARY
CONSIDERATION. 
..END :









HAZELWOOD CO. V. PITSENBARGER 382 U.S. 201 


NO. 567.  DECIDED DECEMBER 6, 1965.  - 149 W.VA. 485, 141 S.E.2D 314,
APPEAL DISMISSED. 


GEORGE F. HAZELWOOD CO. V. PITSENBARGER, ASSESSOR. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















MARCHEV V. LIVINGSTON TOWNSHIP 382 U.S. 201 


NO. 571.  DECIDED DECEMBER 6, 1965.  - 44 N.J. 412, 209 A.2D 145, APPEAL
DISMISSED. 


MARCHEV ET UX. V. TOWNSHIP OF LIVINGSTON. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















CALIFORNIA DEMOCRATIC COUNCIL V. ARNEBERGH 382 U.S. 202 


NO. 583.  DECIDED DECEMBER 6, 1965.  - 233 CAL. APP. 2D 425, 43 CAL.
RPTR.  531, APPEAL DISMISSED. 


CALIFORNIA DEMOCRATIC COUNCIL ET AL. V. ARNEBERGH ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















NEHRING V. GERRITY 382 U.S. 202 


NO. 614.  DECIDED DECEMBER 6, 1965.  - 31 ILL. 2D 608, 203 N.E.2D 402,
APPEAL DISMISSED AND CERTIORARI DENIED. 


NEHRING V. GERRITY. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MISANI V. ORTHO PHARMACEUTICAL CORP. 382 U.S. 203 


NO. 595.  DECIDED DECEMBER 6, 1965.  - 44 N.J. 552, 210 A.2D 609, APPEAL
DISMISSED AND CERTIORARI DENIED. 


MISANI V. ORTHO PHARMACEUTICAL CORP. ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















508 CHESTNUT, INC. V. ST. LOUIS 382 U.S. 203 


NO. 605.  DECIDED DECEMBER 6, 1965.  - 389 S.W.2D 823, APPEAL
DISMISSED. 


508 CHESTNUT, INC. V. CITY OF ST. LOUIS ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















SOLOMON V. SOUTH CAROLINA 382 U.S. 204 


NO. 588.  DECIDED DECEMBER 6, 1965.  - 245 S.C. 550, 141 S.E.2D 818,
APPEAL DISMISSED. 


SOLOMON V. SOUTH CAROLINA. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
REVERSED ON THE AUTHORITY OF SHERBERT V. VERNER, 374 U.S. 398.  AND SEE
MCGOWAN V. MARYLAND, 366 U.S. 420, 561, 577 (DISSENTING OPINION). 

MR. JUSTICE BRENNAN AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :










SWIFT & CO. V. WICKHAM 382 U.S. 111 


NO. 9.  ARGUED OCTOBER 13, 1965.  - DECIDED NOVEMBER 22, 1965.  - 230 F.
SUPP. 398, APPEAL DISMISSED. 


APPELLANTS, TWO MEAT-PACKING COMPANIES, SUED IN THE FEDERAL DISTRICT
COURT TO ENJOIN ENFORCEMENT OF A NEW YORK STATUTE REQUIRING THAT THE
LABEL FOR PACKAGED POULTRY DISCLOSE THE WEIGHT OF THE UNSTUFFED BIRD AS
WELL AS OF THE ENTIRE PACKAGE.  APPELLANTS CLAIMED THAT THE STATE
STATUTE VIOLATED THE COMMERCE CLAUSE, THE FOURTEENTH AMENDMENT, AND
OVERRIDING FEDERAL LABELING REQUIREMENTS UNDER WHICH THE STATE LABEL
HAD BEEN DISAPPROVED.  A THREE-JUDGE DISTRICT COURT WAS CONVENED UNDER
28 U.S.C. SEC 2281, PROVIDING FOR SUCH A TRIBUNAL WHENEVER THE
ENFORCEMENT OF A STATE STATUTE IS SOUGHT TO BE ENJOINED "UPON THE
GROUND OF THE UNCONSTITUTIONALITY OF SUCH STATUTE."  THAT COURT
DISMISSED ON THE MERITS IN BOTH ITS SINGLE-JUDGE AND THREE-JUDGE
CAPACITIES, AND APPEALS WERE TAKEN RESPECTIVELY TO THE COURT OF APPEALS
AND (UNDER 28 U.S.C.  SEC 1253) TO THIS COURT.  HELD:  THE THREE-JUDGE
COURT REQUIREMENT APPLIES TO INJUNCTION SUITS DEPENDING DIRECTLY UPON A
SUBSTANTIVE PROVISION OF THE CONSTITUTION AND DOES NOT APPLY TO
SUPREMACY CLAUSE CASES INVOLVING ONLY FEDERAL-STATE STATUTORY
CONFLICTS.  PP. 114-129. 

(A)  APPELLANTS' COMMERCE CLAUSE AND FOURTEENTH AMENDMENT CLAIMS ARE
TOO INSUBSTANTIAL TO SUPPORT THREE-JUDGE COURT JURISDICTION.  PP. 114
115. 

(B)  A CLAIM THAT A STATE STATUTE IS PRE-EMPTED BY OR IN CONFLICT
WITH A FEDERAL PROVISION THOUGH GROUNDED IN THE SUPREMACY CLAUSE
PRIMARILY INVOLVES THE COMPARISON OF TWO STATUTES, RATHER THAN THE
INTERPRETATION OF THE CONSTITUTION; THEREFORE, AS ESTABLISHED IN EX
PARTE BUDER, 271 U.S. 461; EX PARTE BRANSFORD, 310 U.S. 354; AND CASE
V. BOWLES, 327 U.S. 92, SUPREMACY CLAUSE CASES ARE NOT WITHIN THE
PURVIEW OF SEC 2281.  PP. 120-122. 

(C)  THE HOLDING IN KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369 U.S.
153, THAT A THREE-JUDGE COURT IS REQUIRED IF THE CONSTITUTIONAL ISSUE
IS "IMMEDIATELY" APPARENT BUT NOT IF SUBSTANTIAL STATUTORY CONSTRUCTION
IS REQUIRED, IS UNWORKABLE, AND THAT DECISION IS PRO TANTO OVERRULED. 
PP. 124-129. 

SWIFT & CO., INC., ET AL. V. WICKHAM, COMMISSIONER OF AGRICULTURE AND
MARKETS OF NEW YORK. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, THE SWIFT AND ARMOUR COMPANIES, STUFF, FREEZE, AND
PACKAGE TURKEYS WHICH THEY SHIP TO RETAILERS THROUGHOUT THE COUNTRY FOR
ULTIMATE SALE TO CONSUMERS.  EACH PACKAGE IS LABELED WITH THE NET
WEIGHT OF THE PARTICULAR BIRD (INCLUDING STUFFING) IN CONFORMITY WITH A
GOVERNING FEDERAL STATUTE, THE POULTRY PRODUCTS INSPECTION ACT OF 1957,
71 STAT. 441, 21 U.S.C. SECS 451-469 (1964 ED.), AND THE REGULATIONS
ISSUED UNDER ITS AUTHORITY BY THE SECRETARY OF AGRICULTURE.  (FN1)
MANY OF THESE TURKEYS ARE SOLD IN NEW YORK.  SECTION 193 OF NEW YORK'S
AGRICULTURE AND MARKETS LAW (FN2) HAS BEEN INTERPRETED THROUGH
REGULATIONS AND RULINGS TO REQUIRE THAT THESE PACKAGED TURKEYS BE SOLD
WITH LABELS INFORMING THE PUBLIC OF THE WEIGHT OF THE UNSTUFFED BIRD AS
WELL AS OF THE ENTIRE PACKAGE.  BECAUSE THE AMOUNT OF STUFFING VARIES
WITH EACH BIRD, THE STATE THUS SEEKS TO HELP PURCHASERS ASCERTAIN JUST
HOW MUCH FOWL IS INCLUDED IN EACH READY-FOR-THE-OVEN TURKEY. 

SWIFT AND ARMOUR REQUESTED PERMISSION OF THE POULTRY PRODUCTS SECTION
OF THE DEPARTMENT OF AGRICULTURE TO CHANGE THEIR LABELS IN ORDER TO
CONFORM WITH NEW YORK'S REQUIREMENTS, BUT SUCH PERMISSION WAS REFUSED
AT THE INITIAL ADMINISTRATIVE LEVEL AND NO ADMINISTRATIVE REVIEW OF
THAT REFUSAL WAS SOUGHT.  SWIFT AND ARMOUR THEN BROUGHT THIS FEDERAL
ACTION TO ENJOIN THE COMMISSIONER OF AGRICULTURE AND MARKETS OF NEW
YORK FROM ENFORCING THE STATE'S LABELING PROVISIONS, ASSERTING THAT
ENFORCEMENT WOULD VIOLATE THE COMMERCE CLAUSE AND THE FOURTEENTH
AMENDMENT OF THE FEDERAL CONSTITUTION AND OVERRIDING REQUIREMENTS OF
THE FEDERAL POULTRY ENACTMENT. 

PURSUANT TO APPELLANTS' REQUEST, A THREE-JUDGE DISTRICT COURT WAS
CONSTITUTED UNDER 28 U.S.C. SEC 2281 (1958 ED.), WHICH PROVIDES FOR
SUCH A TRIBUNAL WHENEVER THE ENFORCEMENT OF A STATE STATUTE IS SOUGHT
TO BE ENJOINED "UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH
STATUTE."  THE DISTRICT COURT, UNSURE OF ITS JURISDICTION FOR REASONS
APPEARING BELOW, DISMISSED THE SUIT ON THE MERITS (FN3) ACTING BOTH IN
A THREE-JUDGE AND SINGLE-JUDGE CAPACITY.  (FN4)  APPEALS WERE LODGED IN
THE COURT OF APPEALS FOR THE SECOND CIRCUIT FROM THE SINGLE-JUDGE
DETERMINATION, AND IN THIS COURT FROM THE THREE-JUDGE DECISION IN
ACCORDANCE WITH THE DIRECT APPEAL STATUTE, 28 U.S.C. SEC 1253 (1964
ED.).  THE THRESHOLD QUESTION BEFORE US, THE CONSIDERATION OF WHICH WE
POSTPONED TO THE MERITS (379 U.S. 997), IS WHETHER THIS COURT, RATHER
THAN THE COURT OF APPEALS, HAS JURISDICTION TO REVIEW THE DISTRICT
COURT DETERMINATION, AND THIS IN TURN DEPENDS ON WHETHER A THREE-JUDGE
COURT WAS REQUIRED.  WE HOLD THAT IT WAS NOT. 

AT THE OUTSET, WE AGREE WITH THE DISTRICT COURT THAT THE COMMERCE
CLAUSE AND FOURTEENTH AMENDMENT CLAIMS ALLEGED IN THE COMPLAINT ARE TOO
INSUBSTANTIAL TO SUPPORT THE JURISDICTION OF A THREE-JUDGE COURT.  IT
HAS LONG BEEN HELD THAT NO SUCH COURT IS CALLED FOR WHEN THE ALLEGED
CONSTITUTIONAL CLAIM IS INSUBSTANTIAL, EX PARTE PORESKY, 290 U.S. 30;
CALIFORNIA WATER SERVICE CO. V. CITY OF REDDING, 304 U.S. 252.  SINCE
THE ONLY REMAINING BASIS PUT FORTH FOR ENJOINING ENFORCEMENT OF THE
STATE ENACTMENT WAS ITS ASSERTED REPUGNANCY TO THE FEDERAL STATUTE, THE
DISTRICT COURT WAS QUITE RIGHT IN CONCLUDING THAT THE QUESTION OF A
THREE-JUDGE COURT TURNED ON THE PROPER APPLICATION OF OUR 1962 DECISION
IN KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369 U.S. 153.  THERE WE
DECIDED THAT IN SUITS TO RESTRAIN THE ENFORCEMENT OF A STATE STATUTE
ALLEGEDLY IN CONFLICT WITH OR IN A FIELD PRE-EMPTED BY A FEDERAL
STATUTE, SEC 2281 COMES INTO PLAY ONLY WHEN THE SUPREMACY CLAUSE OF THE
FEDERAL CONSTITUTION IS IMMEDIATELY DRAWN IN QUESTION, BUT NOT WHEN
ISSUES OF FEDERAL OR STATE STATUTORY CONSTRUCTION MUST FIRST BE DECIDED
EVEN THOUGH THE SUPREMACY CLAUSE MAY ULTIMATELY BE IMPLICATED.  FINDING
ITSELF UNABLE TO SAY WITH ASSURANCE WHETHER ITS RESOLUTION OF THE
MERITS OF THIS CASE INVOLVED LESS STATUTORY CONSTRUCTION THAN HAD TAKEN
PLACE IN KESLER, THE DISTRICT COURT WAS LEFT WITH THE PUZZLING QUESTION
HOW MUCH MORE STATUTORY CONSTRUCTION THAN OCCURRED IN KESLER IS
NECESSARY TO DEPRIVE THREE JUDGES OF THEIR JURISDICTION. 

IT MIGHT SUFFICE TO DISPOSE OF THE THREE-JUDGE COURT ISSUE FOR US TO
HOLD, IN AGREEMENT WITH WHAT THE DISTRICT COURT INDICATED, 230 F.
SUPP., AT 410, THAT THIS CASE INVOLVES SO MUCH MORE STATUTORY
CONSTRUCTION THAN DID KESLER THAT A THREE-JUDGE COURT WAS
INAPPROPRIATE.  (WE WOULD INDEED FIND IT DIFFICULT TO SAY THAT LESS OR
NO MORE STATUTORY CONSTRUCTION WAS INVOLVED HERE THAN IN KESLER AND
THAT THEREFORE UNDER THAT DECISION A THREE-JUDGE COURT WAS NECESSARY.) 
WE THINK, HOWEVER, THAT SUCH A DISPOSITION OF THIS IMPORTANT
JURISDICTIONAL QUESTION WOULD BE LESS THAN SATISFACTORY, THAT CANDOR
COMPELS US TO SAY THAT WE FIND THE APPLICATION OF THE KESLER RULE AS
ELUSIVE AS DID THE DISTRICT COURT, AND THAT WE WOULD FALL SHORT IN OUR
RESPONSIBILITIES IF WE DID NOT ACCEPT THIS OPPORTUNITY TO TAKE A FRESH
LOOK AT THE PROBLEM.  WE BELIEVE THAT CONSIDERATIONS OF STARE DECISIS
SHOULD NOT DETER US FROM THIS COURSE.  UNLESS INEXORABLY COMMANDED BY
STATUTE, A PROCEDURAL PRINCIPLE OF THIS IMPORTANCE SHOULD NOT BE KEPT
ON THE BOOKS IN THE NAME OF STARE DECISIS ONCE IT IS PROVED TO BE
UNWORKABLE IN PRACTICE; THE MISCHIEVOUS CONSEQUENCES TO LITIGANTS AND
COURTS ALIKE FROM THE PERPETUATION OF AN UNWORKABLE RULE ARE TOO
GREAT.  FOR REASONS GIVEN IN THIS OPINION, WE HAVE CONCLUDED THAT THE
KESLER DOCTRINE IN THIS AREA OF SEC 2281 IS UNSATISFACTORY, AND THAT
KESLER SHOULD BE PRO TANTO OVERRULED.  THE OVERRULING OF A SIX-TO-TWO
DECISION (FN5) OF SUCH RECENT VINTAGE, WHICH WAS CONCURRED IN BY TWO
MEMBERS OF THE MAJORITY IN THE PRESENT CASE, (FN6) AND THE OPINION IN
SUPPORT OF WHICH WAS WRITTEN BY AN ACKNOWLEDGED EXPERT IN THE FIELD OF
FEDERAL JURISDICTION, DEMANDS FULL EXPLICATION OF OUR REASONS. 

                         I. 

THE THREE-JUDGE DISTRICT COURT IS A UNIQUE FEATURE OF OUR
JURISPRUDENCE, CREATED TO ALLEVIATE A SPECIFIC DISCONTENT WITHIN THE
FEDERAL SYSTEM.  THE ANTECEDENT OF SEC 2281 WAS A 1910 ACT (FN7) PASSED
TO ASSUAGE GROWING POPULAR DISPLEASURE WITH THE FREQUENT GRANTS OF
INJUNCTIONS BY FEDERAL COURTS AGAINST THE OPERATION OF STATE
LEGISLATION REGULATING RAILROADS AND UTILITIES IN PARTICULAR.  (FN8)
THE FEDERAL COURTS OF THE EARLY NINETEENTH CENTURY HAD OCCASIONALLY
ISSUED INJUNCTIONS AT THE BEHEST OF PRIVATE LITIGANTS AGAINST STATE
OFFICIALS TO PREVENT THE ENFORCEMENT OF STATE STATUTES, (FN9) BUT SUCH
CASES WERE RARE AND GENERALLY OF A CHARACTER THAT DID NOT OFFEND
IMPORTANT STATE POLICIES.  THE ADVENT OF THE GRANGER AND LABOR
MOVEMENTS IN THE LATE NINETEENTH CENTURY, (FN10) AND THE ACCELERATION
OF STATE SOCIAL LEGISLATION ESPECIALLY THROUGH THE CREATION OF
REGULATORY BODIES MET WITH OPPOSITION IN THE FEDERAL JUDICIARY.  IN
CHICAGO, M. & ST. P.R. CO. V. MINNESOTA, 134 U.S. 418, THIS COURT HELD
THAT THE SETTING OF RATES NOT PERMITTING A FAIR RETURN VIOLATED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  EX PARTE YOUNG, 209 U.S.
123, ESTABLISHED FIRMLY THE COROLLARY THAT INFERIOR FEDERAL COURTS
COULD ENJOIN STATE OFFICIALS FROM ENFORCING SUCH UNCONSTITUTIONAL STATE
LAWS. 

THIS CONFRONTATION BETWEEN THE UNCERTAIN CONTOURS OF THE DUE PROCESS
CLAUSE AND DEVELOPING STATE REGULATORY LEGISLATION, ARISING IN DISTRICT
COURTS THAT WERE GENERALLY CONSIDERED UNSYMPATHETIC TO THE POLICIES OF
THE STATES, HAD SEVERE REPERCUSSIONS.  EFFORTS WERE MADE IN CONGRESS TO
LIMIT IN VARIOUS WAYS THE JURISDICTION OF FEDERAL COURTS IN THESE
SENSITIVE AREAS.  (FN11)  STATE OFFICIALS SPOKE OUT AGAINST THE
OBSTRUCTION AND DELAY OCCASIONED BY THESE FEDERAL INJUNCTION SUITS. 
(FN12) THE SPONSOR OF THE BILL ESTABLISHING THE THREE-JUDGE PROCEDURE
FOR THESE CASES, SENATOR OVERMAN OF NORTH CAROLINA, NOTED: 

"THERE ARE 150 CASES OF THIS KIND NOW WHERE ONE FEDERAL JUDGE HAS
TIED THE HANDS OF THE STATE OFFICERS, THE GOVERNOR, AND THE ATTORNEY
GENERAL  ...  . 

     *         *         *         *       * 

WHENEVER ONE JUDGE STANDS UP IN A STATE AND ENJOINS THE GOVERNOR AND
THE ATTORNEY-GENERAL, THE PEOPLE RESENT IT, AND PUBLIC SENTIMENT IS
STIRRED, AS IT WAS IN MY STATE, WHEN THERE WAS ALMOST A REBELLION,
WHEREAS IF THREE JUDGES DECLARE THAT A STATE STATUTE IS
UNCONSTITUTIONAL THE PEOPLE WOULD REST EASY UNDER IT."  45 CONG. REC.
7256.  (FN13) 

IN SUCH AN ATMOSPHERE WAS THIS THREE-JUDGE COURT PROCEDURE PUT ON THE
STATUTE BOOKS, AND ALTHOUGH SUBSEQUENT CONGRESSES HAVE AMENDED THE
STATUTE (FN14) ITS BASIC STRUCTURE REMAINS INTACT. 

                              II. 

LITIGATION OF SUITS WHICH, IF SUCCESSFUL, WOULD RENDER VOID STATE
STATUTES EMBODYING IMPORTANT STATE POLICIES.  THE STATUTE PROVIDES FOR
NOTIFICATION TO THE STATE OF A PENDING SUIT, 28 U.S.C. SEC 2284 (2)
(1964 ED.), THUS PREVENTING EX PARTE INJUNCTIONS COMMON PREVIOUSLY. 
(FN15)  IT PROVIDES FOR THREE JUDGES, ONE OF WHOM MUST BE A CIRCUIT
JUDGE, 28 U.S.C. SEC. 2284(1) (1964 ED.), TO ALLOW A MORE AUTHORITATIVE
DETERMINATION AND LESS OPPORTUNITY FOR INDIVIDUAL PREDILECTION IN
SENSITIVE AND POLITICALLY EMOTIONAL AREAS.  IT AUTHORIZES DIRECT REVIEW
BY THIS COURT, 28 U.S.C. SEC 1253, AS A MEANS OF ACCELERATING A FINAL
DETERMINATION ON THE MERITS; AN IMPORTANT CRITICISM OF THE PRE-1910
PROCEDURE WAS DIRECTED AT THE LENGTH OF TIME REQUIRED TO APPEAL THROUGH
THE CIRCUIT COURTS TO THE SUPREME COURT, AND THE CONSEQUENT DISRUPTION
OF STATE TAX AND REGULATORY PROGRAMS CAUSED BY THE OUTSTANDING
INJUNCTION.  (FN16) 

THAT THIS PROCEDURE MUST BE USED IN ANY SUIT FOR AN INJUNCTION
AGAINST STATE OFFICIALS ON THE GROUND THAT A STATE ENACTMENT IS
UNCONSTITUTIONAL HAS BEEN CLEAR FROM THE START.  WHAT YET REMAINS
UNCLEAR, IN SPITE OF DECISIONS BY THIS AND OTHER COURTS, IS THE SCOPE
OF THE PHRASE "UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH
STATUTE" WHEN THE COMPLAINT ALLEGES NOT THE TRADITIONAL DUE PROCESS
CLAUSE, EQUAL PROTECTION CLAUSE, COMMERCE CLAUSE, OR CONTRACT CLAUSE
ARGUMENTS, BUT RATHER THAT THE STATE STATUTE OR REGULATION IN QUESTION
IS PRE-EMPTED BY OR IN CONFLICT WITH SOME FEDERAL STATUTE OR REGULATION
THEREUNDER.  ANY SUCH PRE-EMPTION OR CONFLICT CLAIM IS OF COURSE
GROUNDED IN THE SUPREMACY CLAUSE OF THE CONSTITUTION:  IF A STATE
MEASURE CONFLICTS WITH A FEDERAL REQUIREMENT, THE STATE PROVISION MUST
GIVE WAY.  GIBBONS V. OGDEN, 9 WHEAT.  1.  THE BASIC QUESTION INVOLVED
IN THESE CASES, HOWEVER, IS NEVER ONE OF INTERPRETATION OF THE FEDERAL
CONSTITUTION BUT INEVITABLY ONE OF COMPARING TWO STATUTES.  WHETHER ONE
DISTRICT JUDGE OR THREE MUST CARRY OUT THIS FUNCTION IS THE QUESTION AT
HAND. 

THE FIRST DECISION OF THIS COURT CASTING LIGHT ON THE PROBLEM WAS EX
PARTE BUDER, 271 U.S. 461, IN WHICH THE QUESTION PRESENTED WAS, AS
HERE, WHETHER AN APPEAL WAS PROPERLY TAKEN DIRECTLY FROM THE DISTRICT
COURT TO THE SUPREME COURT.  AT ISSUE WAS WHETHER A MISSOURI STATUTE
AUTHORIZING TAXATION OF BANK SHARES REMAINED VALID AFTER THE ENACTMENT
OF A FEDERAL STATUTE WHICH ENLARGED THE SCOPE OF THE STATES' POWER TO
TAX NATIONAL BANKS BY PERMITTING TAXATION OF SHARES, OR DIVIDENDS, OR
INCOME.  UNDER THE FEDERAL SCHEME, STATES WERE APPARENTLY EXPECTED TO
CHOOSE ONE OF THE THREE METHODS.  ALTHOUGH THE MISSOURI LAW APPLIED THE
FIRST BASIS OF ASSESSMENT, THE DISTRICT COURT HELD THAT BECAUSE THE
STATE DID NOT EXPLICITLY CHOOSE AMONG THE THREE TYPES OF TAXATION, BUT
INSTEAD RELIED ON A PRIOR STATUTE, THE ASSESSMENT WAS VOID.  MR.
JUSTICE BRANDEIS, WRITING FOR A UNANIMOUS COURT, HELD THAT THIS WAS NOT
PROPERLY A THREE-JUDGE COURT CASE "  ...  BECAUSE NO STATE STATUTE WAS
ASSAILED AS BEING REPUGNANT TO THE FEDERAL CONSTITUTION."  271 U.S., AT
465.  ALTHOUGH THE COMPLAINT IN BUDER DID NOT EXPLICITLY INVOKE THE
SUPREMACY CLAUSE, IT SHOULD BE NOTED THAT THE DEFENDANTS' ANSWER
ASSERTED THAT IF THE FEDERAL STATUTE WAS CONSTITUTIONAL UNDER THE TENTH
AMENDMENT, THEN IT WOULD INDEED BE THE "'SUPREME LAW OF THE LAND'
WITHIN THE MEANING AND PROVISIONS OF ARTICLE VI OF THE CONSTITUTION OF
THE UNITED STATES," AND THUS CONTROLLING OVER THE PARTICULAR STATE
STATUTE UNLESS THAT STATUTE COULD BE CONSTRUED AS CONSISTENT WITH THE
FEDERAL LAW.  THE DISTRICT COURT IN BUDER WAS THUS CLEARLY PRESENTED
WITH THE SUPREMACY CLAUSE BASIS OF THE STATUTORY CONFLICT. 

EX PARTE BRANSFORD, 310 U.S. 354, RAISED A SIMILAR PROBLEM, ALSO IN
THE CONTEXT OF THE VALIDITY OF A STATE TAX.  THE COURT AGAIN HELD THIS
TYPE OF FEDERAL-STATE CONFRONTATION OUTSIDE THE PURVIEW OF THE
PREDECESSOR OF SEC 2281: 

"IF SUCH ASSESSMENTS ARE INVALID, IT IS BECAUSE THEY LEVY TAXES UPON
PROPERTY WITHDRAWN FROM TAXATION BY FEDERAL LAW OR IN A MANNER
FORBIDDEN BY THE NATIONAL BANKING ACT.  THE DECLARATION OF THE
SUPREMACY CLAUSE GIVES SUPERIORITY TO VALID FEDERAL ACTS OVER
CONFLICTING STATE STATUTES BUT THIS SUPERIORITY FOR PRESENT PURPOSES
INVOLVES MERELY THE CONSTRUCTION OF AN ACT OF CONGRESS, NOT THE
CONSTITUTIONALITY OF THE STATE ENACTMENT."  310 U.S., AT 358-359.    IN
A THIRD CASE, CASE V. BOWLES, 327 U.S. 92, THE QUESTION INVOLVED THE
PROPOSED SALE BY THE STATE OF WASHINGTON OF TIMBER ON STATE-OWNED LAND
AT A PRICE VIOLATING THE FEDERAL EMERGENCY PRICE CONTROL ACT OF 1942. 
A FEDERAL DISTRICT COURT ENJOINED THE SALE, AND ON APPEAL THE STATE
ARGUED THAT THE SINGLE JUDGE LACKED JURISDICTION.  THIS COURT HELD
OTHERWISE:  "THE COMPLAINT DID NOT CHALLENGE THE CONSTITUTIONALITY OF
THE STATE STATUTE BUT ALLEGED MERELY THAT ITS ENFORCEMENT WOULD VIOLATE
THE EMERGENCY PRICE CONTROL ACT.  CONSEQUENTLY A THREE-JUDGE COURT IS
NOT REQUIRED."  327 U.S., AT 97.  (FN17) 

THE UPSHOT OF THESE DECISIONS SEEMS ABUNDANTLY CLEAR:  SUPREMACY
CLAUSE CASES ARE NOT WITHIN THE PURVIEW OF SEC 2281.  (FN18)  THIS
DISTINCTION BETWEEN CASES INVOLVING CLAIMS THAT STATE STATUTES ARE
UNCONSTITUTIONAL WITHIN THE SCOPE OF SEC 2281 AND CASES INVOLVING
STATUTORY PRE-EMPTION OR CONFLICT REMAINED FIRM UNTIL KESLER V.
DEPARTMENT OF PUBLIC SAFETY, 369 U.S. 153, IN WHICH THE PLAINTIFF
ALLEGED A CONFLICT BETWEEN THE FEDERAL BANKRUPTCY LAWS AND A STATE
STATUTE SUSPENDING THE DRIVING LICENSES OF PERSONS WHO ARE JUDGMENT
DEBTORS AS A RESULT OF AN ADVERSE DECISION IN AN ACTION INVOLVING THE
NEGLIGENT OPERATION OF AN AUTOMOBILE.  IT WAS ARGUED THAT FEDERAL
POLICY UNDERLYING THE BANKRUPTCY LAW OVERRODE THE STATE'S OTHERWISE
LEGITIMATE EXERCISE OF ITS POLICE POWER.  MR. JUSTICE FRANKFURTER, FOR
A MAJORITY, DECLARED FIRST THAT SEC 2281 MADE NO DISTINCTION BETWEEN
THE SUPREMACY CLAUSE AND OTHER PROVISIONS OF THE CONSTITUTION AS A
GROUND FOR DENYING ENFORCEMENT OF A STATE STATUTE, AND SECOND THAT
BUDER, BRANSFORD, AND CASE COULD BE DISTINGUISHED ON THE GROUND THAT
THEY PRESENTED NO CLAIMS OF UNCONSTITUTIONALITY AS SUCH:  "IF IN
IMMEDIATE CONTROVERSY IS NOT THE UNCONSTITUTIONALITY OF A STATE LAW BUT
MERELY THE CONSTRUCTION OF A STATE LAW OR THE FEDERAL LAW, THE THREE
JUDGE REQUIREMENT DOES NOT BECOME OPERATIVE."  369 U.S., AT 157.  IN
THE KESLER CASE ITSELF, MR. JUSTICE FRANKFURTER SAID, THERE WAS NO
PROBLEM OF STATUTORY CONSTRUCTION BUT ONLY A "CONSTITUTIONAL QUESTION"
WHETHER THE STATE ENACTMENT WAS PRE-EMPTED.  AFTER WHAT CAN ONLY BE
CHARACTERIZED AS EXTENSIVE STATUTORY ANALYSIS (369 U.S., AT 158-174)
THE MAJORITY CONCLUDED THAT THERE HAD IN FACT BEEN NO PRE-EMPTION. 
(FN19)

                          III. 

IN RE-EXAMINING THE KESLER RULE THE ADMONITION THAT SEC 2281 IS TO BE
VIEWED "NOT AS A MEASURE OF BROAD SOCIAL POLICY TO BE CONSTRUED WITH
GREAT LIBERALITY, BUT AS AN ENACTMENT TECHNICAL IN THE STRICT SENSE OF
THE TERM AND TO BE APPLIED AS SUCH,"  PHILLIPS V. UNITED STATES, 312
U.S. 246, 251, SHOULD BE KEPT IN MIND.  THE KESLER OPINION ITSELF
REFLECTS THIS ADMONITION, FOR ITS RATIONALIZATION OF BUDER, BRANSFORD,
AND CASE AS BEING CONSISTENT WITH THE VIEW THAT SUPREMACY CLAUSE CASES
ARE NOT EXCLUDED FROM "THE COMPREHENSIVE LANGUAGE OF SEC 2281," 369
U.S., AT 156, IS OTHERWISE MOST DIFFICULT TO EXPLAIN. 

AS A PROCEDURAL RULE GOVERNING THE DISTRIBUTION OF JUDICIAL
RESPONSIBILITY THE TEST FOR APPLYING SEC 2281 MUST BE CLEARLY
FORMULATED.  THE PURPOSE OF THE THREE-JUDGE SCHEME WAS IN MAJOR PART TO
EXPEDITE IMPORTANT LITIGATION:  IT SHOULD NOT BE INTERPRETED IN SUCH A
WAY THAT LITIGATION, LIKE THE PRESENT ONE, IS DELAYED WHILE THE PROPER
COMPOSITION OF THE TRIBUNAL IS LITIGATED.  WE ARE NOW CONVINCED THAT
THE KESLER RULE, DISTINGUISHING BETWEEN CASES IN WHICH SUBSTANTIAL
STATUTORY CONSTRUCTION IS REQUIRED AND THOSE IN WHICH THE
CONSTITUTIONAL ISSUE IS "IMMEDIATELY" APPARENT, IS IN PRACTICE
UNWORKABLE.  NOT ONLY HAS IT BEEN UNIFORMLY CRITICIZED BY COMMENTATORS,
(FN20) BUT LOWER COURTS HAVE QUITE EVIDENTLY SOUGHT TO AVOID DEALING
WITH ITS APPLICATION (FN21) OR HAVE INTERPRETED IT WITH UNCERTAINTY. 
(FN22)  AS JUDGE FRIENDLY'S OPINION FOR THE COURT BELOW DEMONSTRATES,
IN ORDER TO ASCERTAIN THE CORRECT FORUM, THE MERITS MUST FIRST BE
ADJUDICATED IN ORDER TO DISCOVER WHETHER THE COURT HAS "ENGAGED IN SO
MUCH MORE CONSTRUCTION THAN IN KESLER AS TO MAKE THAT RULING
INAPPLICABLE."  230 F. SUPP., AT 410.  SUCH A FORMULATION, WHATEVER ITS
ABSTRACT JUSTIFICATION, CANNOT STAND AS AN EVERY-DAY TEST FOR
ALLOCATING LITIGATION BETWEEN DISTRICT COURTS OF ONE AND THREE JUDGES. 

TWO POSSIBLE INTERPRETATIONS OF SEC 2281 WOULD PROVIDE A MORE
PRACTICABLE RULE FOR THREE-JUDGE COURT JURISDICTION.  THE FIRST IS THAT
KESLER MIGHT BE EXTENDED TO HOLD, AS SOME OF ITS LANGUAGE MIGHT BE
THOUGHT TO INDICATE, (FN23) THAT ALL SUITS TO ENJOIN THE ENFORCEMENT OF
A STATE STATUTE, WHATEVER THE FEDERAL GROUND, MUST BE CHANNELED THROUGH
THREE-JUDGE COURTS.  THE SECOND IS THAT NO SUCH SUITS RESTING SOLELY ON
"SUPREMACY" GROUNDS FALL WITHIN THE STATUTE. 

THE FIRST ALTERNATIVE HOLDS SOME ATTRACTION.  FIRST, IT IS RELATIVELY
STRAIGHTFORWARD:  A COURT NEED NOT DISTINGUISH AMONG DIFFERENT
CONSTITUTIONAL GROUNDS FOR THE REQUESTED INJUNCTION; IT NEED LOOK ONLY
AT THE RELIEF SOUGHT.  MOREOVER, IN THOSE CASES, AS IN THAT BEFORE US,
IN WHICH AN INJUNCTION IS SOUGHT ON SEVERAL GROUNDS, THE PROPER FORUM
WOULD NOT DEPEND ON WHETHER CERTAIN ALLEGED CONSTITUTIONAL GROUNDS TURN
OUT TO BE INSUBSTANTIAL.  SECOND, SEC 2281 SPEAKS OF
"UNCONSTITUTIONALITY," AND, TO BE SURE, ANY DETERMINATION THAT A STATE
STATUTE IS VOID FOR OBSTRUCTING A FEDERAL STATUTE DOES REST ON THE
SUPREMACY CLAUSE OF THE FEDERAL CONSTITUTION.  AND, THIRD, THERE IS
SOME POLICY JUSTIFICATION FOR A WIDER RULE.  IN A BROAD SENSE, WHAT
CONCERNED THE LEGISLATORS WHO PASSED THE PROGENITOR OF SEC. 2281 WAS
THE VOIDING OF STATE LEGISLATION BY INFERIOR FEDERAL COURTS.  THE
SENSIBILITIES OF THE CITIZENS, AND PERHAPS MORE PARTICULARLY OF THE
STATE OFFICIALS, WERE LESS LIKELY TO BE OFFENDED, THE CONGRESS THOUGHT,
BY A JUDGMENT CONSIDERED AND HANDED DOWN BY THREE JUDGES RATHER THAN BY
ONE JUDGE.  THIS RATIONALE CAN BE THOUGHT TO BE AS APPLICABLE TO A SUIT
VOIDING STATE LEGISLATION ON GROUNDS OF CONFLICT WITH A FEDERAL STATUTE
AS IT IS TO AN IDENTICAL SUIT ALLEGING A CONFLICT WITH THE FEDERAL
CONSTITUTION DIRECTLY. 

PERSUASIVE AS THESE CONSIDERATIONS MAY BE, WE BELIEVE THAT THE
REASONS SUPPORTING THE SECOND INTERPRETATION, THAT IS, RETURNING TO THE
TRADITIONAL BUDER-BRANSFORD-CASE RULE, SHOULD CARRY THE DAY.  THIS
RESTRICTIVE VIEW OF THE APPLICATION OF SEC 2281 IS MORE CONSISTENT WITH
A DISCRIMINATING READING OF THE STATUTE ITSELF THAN IS THE FIRST AND
MORE EMBRACING INTERPRETATION.  THE STATUTE REQUIRES A THREE-JUDGE
COURT IN ORDER TO RESTRAIN THE ENFORCEMENT OF A STATE STATUTE "UPON THE
GROUND OF THE UNCONSTITUTIONALITY OF SUCH STATUTE."  SINCE ALL FEDERAL
ACTIONS TO ENJOIN A STATE ENACTMENT REST ULTIMATELY ON THE SUPREMACY
CLAUSE, (FN24) THE WORDS "UPON THE GROUND OF THE UNCONSTITUTIONALITY OF
SUCH STATUTE" WOULD APPEAR TO BE SUPERFLUOUS UNLESS THEY ARE READ TO
EXCLUDE SOME TYPES OF SUCH INJUNCTIVE SUITS.  (FN25)  FOR A SIMPLE
PROVISION PROHIBITING THE RESTRAINT OF THE ENFORCEMENT OF ANY STATE
STATUTE EXCEPT BY A THREE-JUDGE COURT WOULD MANIFESTLY HAVE SUFFICED TO
EMBRACE EVERY SUCH SUIT WHATEVER ITS PARTICULAR CONSTITUTIONAL GROUND. 
IT IS THUS QUITE PERMISSIBLE TO READ THE PHRASE IN QUESTION AS ONE OF
LIMITATION, SIGNIFYING A CONGRESSIONAL PURPOSE TO CONFINE THE THREE
JUDGE COURT REQUIREMENT TO INJUNCTION SUITS DEPENDING DIRECTLY UPON A
SUBSTANTIVE PROVISION OF THE CONSTITUTION, LEAVING CASES OF CONFLICT
WITH A FEDERAL STATUTE (OR TREATY) TO FOLLOW THEIR NORMAL COURSE IN A
SINGLE-JUDGE COURT.  WE DO NOT SUGGEST THAT THIS READING OF SEC 2281 IS
COMPELLED.  WE DO SAY, HOWEVER, THAT IT IS AN ENTIRELY APPROPRIATE
READING, AND ONE THAT IS SUPPORTED BY ALL THE PRECEDENTS IN THIS COURT
UNTIL KESLER AND BY SOUND POLICY CONSIDERATIONS. 

AN EXAMINATION OF THE ORIGINS OF THE THREE-JUDGE PROCEDURE DOES NOT
SUGGEST WHAT THE LEGISLATORS WOULD HAVE THOUGHT ABOUT THIS PARTICULAR
PROBLEM, BUT IT DOES SHOW QUITE CLEARLY WHAT SORT OF CASES WERE OF
CONCERN TO THEM.  THEIR IRE WAS AROUSED BY THE FREQUENT GRANTS OF
INJUNCTIONS AGAINST THE ENFORCEMENT OF PROGRESSIVE STATE REGULATORY
LEGISLATION, USUALLY ON SUBSTANTIVE DUE PROCESS GROUNDS.   (SEE PP. 116
119, SUPRA.)  REQUIRING THE COLLECTIVE JUDGMENT OF THREE JUDGES AND
ACCELERATING APPEALS TO THIS COURT WERE DESIGNED TO SAFEGUARD IMPORTANT
STATE INTERESTS.  IN CONTRAST, A CASE INVOLVING AN ALLEGED
INCOMPATIBILITY BETWEEN STATE AND FEDERAL STATUTES, SUCH AS THE
LITIGATION BEFORE US, INVOLVES MORE CONFINING LEGAL ANALYSIS AND CAN
HARDLY BE THOUGHT TO RAISE THE WORRISOME POSSIBILITIES THAT ECONOMIC OR
POLITICAL PREDILECTIONS WILL FIND THEIR WAY INTO A JUDGMENT.  MOREOVER,
THOSE WHO ENACTED THE THREE-JUDGE COURT STATUTE SHOULD NOT BE DEEMED TO
HAVE BEEN INSENSITIVE TO THE CIRCUMSTANCE THAT SINGLE-JUDGE DECISIONS
IN CONFLICT AND PRE-EMPTION CASES WERE ALWAYS SUBJECT TO THE CORRECTIVE
POWER OF CONGRESS, WHEREAS A "CONSTITUTIONAL" DECISION BY SUCH A JUDGE
WOULD BE BEYOND THAT READY MEANS OF CORRECTION AND COULD BE DEALT WITH
ONLY BY CONSTITUTIONAL AMENDMENT.  THE PURPOSE OF SEC 2281 TO PROVIDE
GREATER RESTRAINT AND DIGNITY AT THE DISTRICT COURT LEVEL CANNOT WELL
BE THOUGHT GENERALLY APPLICABLE TO CASES THAT INVOLVE CONFLICTS BETWEEN
STATE AND FEDERAL STATUTES, IN THIS INSTANCE DETERMINING WHETHER THE
DEPARTMENT OF AGRICULTURE'S REGULATIONS AS APPLIED TO THE LABELING OF
TOTAL NET WEIGHT ON FROZEN STUFFED TURKEYS NECESSARILY RENDERS INVALID
A NEW YORK STATUTE REQUIRING A SUPPLEMENTAL NET WEIGHT FIGURE WHICH
EXCLUDES THE STUFFING. 

OUR DECISION THAT THREE-JUDGE COURTS ARE NOT REQUIRED IN SUPREMACY
CLAUSE CASES INVOLVING ONLY FEDERAL-STATE STATUTORY CONFLICTS, IN
ADDITION TO BEING MOST CONSISTENT WITH THE STATUTE'S STRUCTURE, WITH
PRE-KESLER PRECEDENT, AND WITH THE SECTION'S HISTORICAL PURPOSE, IS
BUTTRESSED BY IMPORTANT CONSIDERATIONS OF JUDICIAL ADMINISTRATION.  AS
MR. JUSTICE FRANKFURTER OBSERVEED IN FLORIDA LIME & AVOCADO GROWERS,
INC. V. JACOBSEN, 362 U.S. 73, 92-93 (DISSENTING OPINION): 

"THE CONVENING OF A THREE-JUDGE TRIAL COURT MAKES FOR DISLOCATION OF
THE NORMAL STRUCTURE AND FUNCTIONING OF THE LOWER FEDERAL COURTS,
PARTICULARLY IN THE VAST NON-METROPOLITAN REGIONS; AND DIRECT REVIEW OF
DISTRICT COURT JUDGMENTS BY THIS COURT NOT ONLY EXPANDS THIS COURT'S
OBLIGATORY JURISDICTION BUT CONTRADICTS THE DOMINANT PRINCIPLE OF
HAVING THIS COURT REVIEW DECISIONS ONLY AFTER THEY HAVE GONE THROUGH
TWO JUDICIAL SIEVES  ...  ." 

ALTHOUGH THE NUMBER OF THREE-JUDGE DETERMINATIONS EACH YEAR SHOULD
NOT BE EXAGGERATED, (FN26) THIS COURT'S CONCERN FOR EFFICIENT OPERATION
OF THE LOWER FEDERAL COURTS PERSUADES US TO RETURN TO THE BUDER
BRANSFORD-CASE RULE, THEREBY CONFORMING WITH THE CONSTRICTIVE VIEW OF
THE THREE-JUDGE JURISDICTION WHICH THIS COURT HAS TRADITIONALLY TAKEN. 
EX PARTE COLLINS, 277 U.S. 565; OKLAHOMA GAS & ELEC.  CO. V. OKLAHOMA
PACKING CO., 292 U.S. 386; RORICK V. BOARD OF COMMISSIONERS, 307 U.S.
208; PHILLIPS V. UNITED STATES, 312 U.S. 246. 

WE HOLD THEREFORE THAT THIS APPEAL IS NOT PROPERLY BEFORE US UNDER 28
U.S.C. SEC 1253 AND THAT APPELLATE REVIEW LIES IN THE COURT OF APPEALS,
WHERE APPELLANTS' ALTERNATIVE APPEAL IS NOW PENDING.  THE APPEAL IS
DISMISSED FOR LACK OF JURISDICTION.  IT IS SO ORDERED. 

FN1  SECTION 457 (B) DECLARES: 

"THE USE OF ANY WRITTEN, PRINTED OR GRAPHIC MATTER UPON OR
ACCOMPANYING ANY POULTRY PRODUCT INSPECTED OR REQUIRED TO BE INSPECTED
PURSUANT TO THE PROVISIONS OF THIS CHAPTER OF THE CONTAINER THEREOF
WHICH IS FALSE OR MISLEADING IN ANY PARTICULAR IS PROHIBITED." 

MAJOR CONSUMING AREA, A FALSE OR MISLEADING LABEL ON ANY POULTRY
PRODUCT." 

THE SECRETARY OF AGRICULTURE IS AUTHORIZED BY SEC 463 TO ISSUE
REGULATIONS.  7 CFR SEC 81.125 REQUIRES CONTAINERS TO BEAR "APPROVED
LABELS"; SEC 81.130(A)(3) DECLARES THAT LABELS MUST INCLUDE THE NET
WEIGHT OF THE CONTENTS AND THAT "THE NET WEIGHT MARKED ON CONTAINERS OF
POULTRY PRODUCTS SHALL BE THE NET WEIGHT OF THE POULTRY PRODUCTS AND
SHALL NOT INCLUDE THE WEIGHTS OF THE WET OR DRY PACKAGING MATERIALS AND
GIBLET WRAPPING MATERIALS." 

FN2  SECTION 193-3 PROVIDES: 

"ALL FOOD AND FOOD PRODUCTS OFFERED FOR SALE AT RETAIL AND NOT IN
CONTAINERS SHALL BE SOLD OR OFFERED FOR SALE BY NET WEIGHT, STANDARD
MEASURE OR NUMERICAL COUNT UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED
BY THE COMMISSIONER." 

NET WEIGHT WAS NOT DEFINED IN THE REGULATION, 1 NYCRR SEC 221.40 (NOW
SEC 221.9(C)), BUT "THE DIRECTOR OF THE BUREAU OF WEIGHTS AND MEASURES
OF THE DEPARTMENT TESTIFIED THAT HE INTERPRETED THE REGULATION, AS
APPLIED TO STUFFED TURKEYS, TO REQUIRE STATEMENT OF THE NET WEIGHT BOTH
OF THE UNSTUFFED AND OF THE STUFFED BIRD, AND THAT, WHEN ASKED, HE SO
ADVISED LOCAL SEALERS OF WEIGHTS AND MEASURES."  SWIFT & CO. V.
WICKHAM, 230 F. SUPP. 398, 401 (1964). 

FN3  THE COURT BELOW REJECTED APPELLANTS' COMMERCE CLAUSE AND
FOURTEENTH AMENDMENT ARGUMENTS, HELD THAT THERE HAD BEEN NO FEDERAL PRE
EMPTION OF THIS FIELD OF REGULATION, AND, THOUGH IMPLYING STRONGLY THAT
THE NEW YORK LABELING REQUIREMENTS DID NOT CONFLICT WITH FEDERAL
REQUIREMENTS, HELD THAT THIS QUESTION SHOULD FIRST BE PASSED UPON AT A
HIGHER FEDERAL ADMINISTRATIVE LEVEL. 

FN4  THE THREE-JUDGE COURT DISMISSED THE COMPLAINT "CERTIFYING OUT OF
ABUNDANT CAUTION" THAT THE ORIGINAL DISTRICT JUDGE, ALSO A MEMBER OF
THE THREE-JUDGE PANEL, "INDIVIDUALLY ARRIVED AT THE SAME CONCLUSION." 
230 F. SUPP., AT 410.  THIS PROCEDURE FOR MINIMIZING PREJUDICE TO
LITIGANTS WHEN THE JURISDICTION OF A THREE-JUDGE COURT IS UNCLEAR HAS
BEEN USED BEFORE, SEE QUERY V. UNITED STATES, 316 U.S. 486. 

FN5  MR. JUSTICE WHITTAKER TOOK NO PART IN THE DECISION OF THE CASE. 

FN6  MR. JUSTICE BRENNAN AND THE PRESENT WRITER WERE INCLUDED IN THE
KESLER MAJORITY.    FN7  ACT OF JUNE 18, 1910, C. 309, SEC 17, 36 STAT.
557. 

FN8  SEE CURRIE, THE THREE-JUDGE DISTRICT COURT IN CONSTITUTIONAL
LITIGATION, 32 U. CHI.  L. REV. 1, 3-9 (1964); HUTCHESON, A CASE FOR
THREE JUDGES, 47 HARV. L. REV. 795 (1934); WARREN, FEDERAL AND STATE
COURT INTERFERENCE, 43 HARV. L. REV. 345 (1930).  FOR MORE CONTEMPORARY
ACCOUNTS SEE, E.G., BALDWIN, PRESIDENTIAL ADDRESS:  THE PROGRESSIVE
UNFOLDING OF THE POWERS OF THE UNITED STATES, VI AM. POL.  SCI.  REV.
1, 8-9 (1912); SCOTT, THE INCREASED CONTROL OF STATE ACTIVITIES BY THE
FEDERAL COURTS, III AM. POL.  SCI.  REV. 347 (1909).  ALTHOUGH VARIOUS
TYPES OF STATE LEGISLATION WERE BEING CHALLENGED IN INJUNCTIVE SUITS,
SEE LOCKWOOD, MAW, AND ROSENBERRY, THE USE OF THE FEDERAL INJUNCTION IN
CONSTITUTIONAL LITIGATION, 43 HARV. L. REV. 426 (1930), MOST NUMEROUS
AND PROMINENT WERE THE RAILROAD CASES.  SENATOR OVERMAN NOTED THAT "
...  NINE OUT OF TEN OF THE CASES WHERE APPLICATION FOR AN INJUNCTION
HAS BEEN MADE TO TEST THE CONSTITUTIONALITY OF STATE STATUTES HAVE BEEN
RAILROAD CASES."  45 CONG. REC. 7254 (1910). 

FN9  E.G., SPOONER V. MCCONNELL, 22 FED. CAS. 939 (NO. 13245)(1838). 

FN10  SEE S. J. BUCK, THE GRANGER MOVEMENT, ESP.  194-214, 231-237
(1913); JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY 48-68 (1949); 2
WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 574-599 (1935).  FOR
THE RELATED STORY OF THE USE OF THE EQUITY POWER IN THE LABOR FIELD,
SEE FRANKFURTER AND GREENE, THE LABOR INJUNCTION (1930). 

FN11  SEE HUTCHESON, SUPRA, AT 803-804. 

FN12  SEE, E.G., 45 CONG. REC. 7253 (1910)(REMARKS OF SENATOR
CRAWFORD).  ALTHOUGH SOME LITIGATION OF THIS SORT DRAGGED ON FOR AS
MUCH AS FIVE YEARS, IBID., IT IS NOT CLEAR THAT MOST STATE COURTS WERE
ANY MORE EXPEDITIOUS, SEE LILIENTHAL, THE FEDERAL COURTS AND STATE
REGULATION OF PUBLIC UTILITIES, 43 HARV. L. REV. 379, 417 AND N. 176
(1930). 

FN13  SENATOR OVERMAN WAS PROBABLY REFERRING TO SOUTHERN R. CO. V.
MCNEILL, 155 F. 756 (1907).  THERE, AFTER AN INJUNCTION HAD BEEN
SUSTAINED BY THE CIRCUIT COURT, THE GOVERNOR PUBLICLY URGED STATE
OFFICIALS TO IGNORE IT.  THE RAILWAY COMPLAINED TO THE COURT THAT
"THESE ATTACKS ON THE PART OF THE GOVERNOR AND STATE OFFICIALS AGAINST
THE COMPANY AND ITS AGENTS  ...  HAD THE EFFECT OF DEMORALIZING THE
SERVANTS, AGENTS, AND EMPLOYES OF THE COMPANY TO SUCH AN EXTENT AS TO
RENDER IT WELL NIGH IMPOSSIBLE FOR COMPLAINANT TO PROPERLY DISCHARGE
THE DUTIES WHICH IT OWED THE PUBLIC  ... ."  ID., AT 790-791. 

FN14  THE PROCEDURE WAS EXTENDED TO COVER CHALLENGES TO ORDERS OF
STATE ADMINISTRATIVE COMMISSIONS IN 1913, 37 STAT. 1013, 28 U.S.C. SEC
2281, AND IN 1925 SUITS FOR PERMANENT INJUNCTIONS WERE BROUGHT WITHIN
ITS PURVIEW, 43 STAT. 938, 28 U.S.C. SEC 2281.  THREE-JUDGE DISTRICT
COURTS ARE ALSO REQUIRED IN CERTAIN SUITS ARISING UNDER FEDERAL LAW. 
SEE NOTE, THE THREE-JUDGE DISTRICT COURT:  SCOPE AND PROCEDURE UNDER

FN15  SEE HUTCHESON, SUPRA, AT 800-801.  SENATOR CRAWFORD OF SOUTH
DAKOTA TOLD THE CONGRESS THAT WHEN HIS STATE LEGISLATURE WAS DEBATING A
MAXIMUM RATE LAW, THE RAILWAY COMPANIES HAD ALREADY PREPARED MOTIONS
FOR INJUNCTIONS: 

"THE STATUTE PASSED AND WAS PRESENTED TO THE GOVERNOR FOR HIS
SIGNATURE, AND IN LESS THAN AN HOUR AFTER HE HAD SIGNED THE BILL AND IT
WAS FILED IN THE OFFICE OF THE SECRETARY OF STATE A RESTRAINING ORDER
CAME BY TELEGRAPH FROM A UNITED STATES JUDGE, ENJOINING THE GOVERNOR
AND THE ATTORNEY-GENERAL AND ALL THE OFFICERS IN THE STATE FROM
PROCEEDING TO ENFORCE THAT STATUTE."  45 CONG. REC. 7252 (1910). 

FN16  SEE, ID., AT 7256 (REMARKS OF SENATOR CRAWFORD); NOTE 12,
SUPRA. 

FN17  THIS BASIC RULE HAS BEEN REITERATED IN OTHER FAMILIAR CASES
WHERE THE FACTS DID NOT REQUIRE ITS APPLICATION.  SEE QUERY V. UNITED
STATES, 316 U.S. 486, WHERE, HOWEVER, A THREE-JUDGE COURT WAS FOUND
NECESSARY BECAUSE OTHER NOT INSUBSTANTIAL CONSTITUTIONAL CLAIMS HAD
BEEN CLEARLY ASSERTED.  IN FLORIDA LIME & AVOCADO GROWERS, INC. V.
JACOBSEN, 362 U.S. 73, THE MAJORITY HELD THAT IF A STATE STATUTE IS
SOUGHT TO BE ENJOINED ON CONSTITUTIONAL GROUNDS (COMMERCE CLAUSE EQUAL
PROTECTION) IT DID NOT MATTER THAT A "NONCONSTITUTIONAL" GROUND (PRE
EMPTION BY THE FEDERAL AGRICULTURAL MARKETING AGREEMENT ACT) WAS ALSO
ASSERTED.  MR. JUSTICE FRANKFURTER DISSENTED, REASONING THAT THE THREE
JUDGE PROCEDURE SHOULD BE READ NARROWLY AND THAT THE MERE AVAILABILITY
OF A "NON-CONSTITUTIONAL" BASIS FOR ENJOINING THE STATE STATUTE SHOULD
GIVE JURISDICTION TO A SINGLE JUDGE.  BOTH MAJORITY AND DISSENT ASSUMED
THAT AN ATTACK UPON A STATE ENACTMENT ON THE GROUND THAT IT WAS
INCONSISTENT WITH A FEDERAL STATUTE WAS SUCH A "NON-CONSTITUTIONAL"
GROUND. 

FN18  NONE OF THESE CASES CAN BE READ TO SUGGEST THAT THE RESULT
DEPENDS ON WHETHER OR NOT THE COMPLAINT SPECIFICALLY INVOKES THE
SUPREMACY CLAUSE, FOR THAT CLAUSE IS THE INEVITABLE UNDERPINNING FOR
THE STRIKING DOWN OF A STATE ENACTMENT WHICH IS INCONSISTENT WITH
FEDERAL LAW.  SEE THE QUOTATION FROM BRANSFORD, SUPRA, P. 121, A CASE
IN WHICH THE SUPREMACY CLAUSE WAS NOT INVOKED IN THE COMPLAINT.  SEE
ALSO THE DISCUSSION OF EX PARTE BUDER, SUPRA, PP. 120-121.  NOR DO ANY
OF THESE CASES SUGGEST THAT THE ISSUE TURNS ON THE AMOUNT OF STATUTORY
CONSTRUCTION INVOLVED, WHETHER LARGE, SMALL, OR SIMPLY OF THE CHARACTER
THAT ENTAILS LAYING THE ALLEGED CONFLICTING STATUTES SIDE BY SIDE. 

FN19  IN DISSENT IT WAS STATED THAT THE KESLER OPINION "REFUTES THE
VERY TEST WHICH IT ESTABLISHES."  369 U.S., AT 177 (DISSENTING OPINION
OF THE CHIEF JUSTICE).  IN ADDITION, THREE JUSTICES DISSENTED IN WHOLE
OR IN PART FROM THE CONCLUSIONS DERIVED FROM THIS STATUTORY ANALYSIS. 

FN20  SEE CURRIE, SUPRA, AT 61-64 (1964); NOTE, 77 HARV. L. REV. 299,
313-315 (1963); NOTE, 49 VA. L. REV. 538, 553-555 (1963); 76 HARV. L.
REV. 168 (1962); 15 STAN.  L. REV. 565 (1963); 1962 U. ILL. L.F. 467;
111 U. PA. L. REV. 113 (1962). 

FN21  SEE BORDEN CO. V. LIDDY, 309 F.2D 871; AMERICAN TRAVELERS CLUB,
INC. V. HOSTETTER, 219 F. SUPP. 95, 102, N. 7. 

FN22  SEE, IN ADDITION TO THE CASE BEFORE US, BARTLETT & CO. V. STATE
CORP. COMM'N OF KANSAS, 223 F. SUPP. 975. 

FN23  "NEITHER THE LANGUAGE OF SEC 2281 NOR THE PURPOSE WHICH GAVE
RISE TO IT AFFORDS THE REMOTEST REASON FOR CARVING OUT AN UNFRIVOLOUS
CLAIM OF UNCONSTITUTIONALITY BECAUSE OF THE SUPREMACY CLAUSE FROM THE
COMPREHENSIVE LANGUAGE OF SEC 2281."  369 U.S., AT 156. 

FN24  ART. VI, CL. 2.  "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." 

FN25  THE "UNCONSTITUTIONALITY" CLAUSE OF SEC 2281 CAN HARDLY BE
THOUGHT TO ENCOMPASS THE VOIDING OF A STATE STATUTE FOR INCONSISTENCY
WITH THE STATE CONSTITUTION.  CF. FLORIDA LIME & AVOCADO GROWERS, INC.
V. JACOBSEN, 362 U.S. 73, 80. 

FN26  THE STATISTICS ARE SUMMARIZED IN NOTE, 77 HARV. L. REV. 299,
303-305 (1963); NOTE, 72 YALE L.J. 1646, 1654-1659 (1963).  THE MOST
RECENT FIGURES SHOW THAT OUT OF THE 11,485 TRIALS COMPLETED IN DISTRICT
COURTS IN FISCAL 1965, ONLY 147 WERE HEARD BY THREE-JUDGE COURTS.  OF
THESE 60 DEALT WITH I.C.C. REGULATIONS, 35 WITH CIVIL RIGHTS, AND ONLY
52 WITH STATE OR LOCAL LAW.  1965 DIR.  ADM.  OFF. U.S. COURTS ANN.
REP. II-25, II-28. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
CLARK CONCUR, DISSENTING. 

LESS THAN FOUR YEARS AGO, THIS COURT DECIDED THAT A THREE-JUDGE
DISTRICT COURT WAS REQUIRED IN SUITS BROUGHT UNDER 28 U.S.C. SEC 2281,
EVEN THOUGH THE ALLEGED "GROUND OF THE UNCONSTITUTIONALITY" OF THE
CHALLENGED STATUTE WAS BASED UPON A CONFLICT BETWEEN STATE AND FEDERAL
STATUTES.  KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369 U.S. 153. 

A STATE STATUTE MAY VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT OR THE DUE PROCESS CLAUSE OR SOME OTHER EXPRESS
PROVISION OF THE CONSTITUTION.  IF SO A THREE-JUDGE COURT IS PLAINLY
REQUIRED BY 28 U.S.C. SEC 2281.  BUT THE ISSUE OF THE
"UNCONSTITUTIONALITY" OF A STATE STATUTE CAN BE RAISED AS CLEARLY BY A
CONFLICT BETWEEN IT AND AN ACT OF CONGRESS AS BY A CONFLICT BETWEEN IT
AND A PROVISION OF THE CONSTITUTION.  THE SUPREMACY CLAUSE, CONTAINED
IN ART. VI, CL. 2, OF THE CONSTITUTION, STATES AS MUCH IN CLEAR
LANGUAGE: 

"THIS CONSTITUTION, AND THE LAWS OF THE UNITED STATES WHICH SHALL BE
MADE IN PURSUANCE THEREOF ...  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." 

AN ISSUE OF THE "UNCONSTITUTIONALITY" OF A STATE STATUTE IS THEREFORE
PRESENTED WHETHER THE CONFLICT IS BETWEEN A PROVISION OF THE
CONSTITUTION AND A STATE ENACTMENT OR BETWEEN THE LATTER AND AN ACT OF
CONGRESS.  WHAT SENATOR OVERMAN, AUTHOR OF THE THREE-JUDGE PROVISION,
SAID OF IT IN 1910 IS AS RELEVANT TO ENJOINING A STATE LAW ON THE
GROUND OF FEDERAL PRE-EMPTION AS IT IS TO ENJOINING IT BECAUSE IT
VIOLATES THE FOURTEENTH AMENDMENT: 

"THE POINT IS, THIS AMENDMENT IS FOR PEACE AND GOOD ORDER IN THE
STATE.  WHENEVER ONE JUDGE STANDS UP IN A STATE AND ENJOINS THE
GOVERNOR AND THE ATTORNEY-GENERAL, THE PEOPLE RESENT IT, AND PUBLIC
SENTIMENT IS STIRRED, AS IT WAS IN MY STATE, WHEN THERE WAS ALMOST A
REBELLION, WHEREAS IF THREE JUDGES DECLARE THAT A STATE STATUTE IS
UNCONSTITUTIONAL THE PEOPLE WOULD REST EASY UNDER IT.  BUT LET ONE
LITTLE JUDGE STAND UP AGAINST THE WHOLE STATE, AND YOU FIND THE PEOPLE
OF THE STATE RISING UP IN REBELLION.  THE WHOLE PURPOSE OF THE PROPOSED
STATUTE IS FOR PEACE AND GOOD ORDER AMONG THE PEOPLE OF THE STATES." 
45 CONG. REC. 7256. 

SOME OF THE MOST HEATED CONTROVERSIES BETWEEN STATE AND NATION WHICH
THIS COURT HAS SUPERVISED HAVE INVOLVED QUESTIONS WHETHER THERE WAS A
CONFLICT BETWEEN A STATE STATUTE AND A FEDERAL ONE OR WHETHER A FEDERAL
ACT WAS SO INCLUSIVE AS TO PRE-EMPT STATE ACTION IN THE PARTICULAR
AREA.  ONE OF THE EARLIEST AND MOST TUMULTUOUS WAS COHENS V. VIRGINIA,
6 WHEAT.  264, 440, WHERE THE ALLEGED UNCONSTITUTIONALITY OF A VIRGINIA
LAW WAS BASED ON THE ARGUMENT THAT AN ACT OF CONGRESS, AUTHORIZING A
LOTTERY IN THE DISTRICT OF COLUMBIA, BARRED VIRGINIA FROM MAKING IT A
CRIMINAL OFFENSE TO SELL LOTTERY TICKETS WITHIN THAT STATE.  THE
PROTEST FROM THE STATES WAS VOCIFEROUS (FN1) EVEN THOUGH THE COURT IN
THE END CONSTRUED THE FEDERAL ACT TO KEEP IT FROM OPERATING IN
VIRGINIA.  ID., AT 447.  I THEREFORE SEE NO DIFFERENCE BETWEEN A CHARGE
OF "UNCONSTITUTIONALITY" OF A STATE STATUTE WHETHER THE CONFLICT BE
BETWEEN IT AND THE CONSTITUTION OR BETWEEN IT AND A FEDERAL LAW. 
NEITHER THE LANGUAGE OF THE SUPREMACY CLAUSE NOR REASON NOR HISTORY
MAKES ANY DIFFERENCE PLAIN. 

PRE-EMPTION OR CONFLICT OF A STATE LAW WITH A FEDERAL ONE IS A
RECURRING THEME (FN2) ARISING IN VARIOUS CONTEXTS.  THE STORM AGAINST
COHENS V. VIRGINIA WAS A PROTEST AGAINST THIS COURT'S ACTING AS REFEREE
IN A FEDERAL-STATE CONTEST INVOLVING PRE-EMPTION OR A CONFLICT BETWEEN
THE LAWS OF THE TWO REGIMES.  CONGRESS HAS RECENTLY BEEN CONCERNED WITH
THE PROBLEM IN ANOTHER ASPECT OF THE MATTER, (FN3) WHEN EFFORTS WERE
MADE TO CURB THE DOCTRINE OF PRE-EMPTION BY ESTABLISHING STANDARDS FOR
AN INTERPRETATION OF AN ACT OF CONGRESS.  (FN4)  THE THREE-JUDGE COURT
IS ONLY ANOTHER FACET OF THE SELF-SAME PROBLEM. 

THE HISTORY OF 28 U.S.C. SEC 2281, AS RELATED BY THE COURT, SPEAKS OF
THE CONCERN OF CONGRESS OVER THE POWER OF ONE JUDGE TO BRING A HALT TO
AN ENTIRE STATE REGULATORY SCHEME.  THAT CAN - AND WILL HEREAFTER -
HAPPEN IN ALL CASES OF PRE-EMPTION OR CONFLICT WHERE THE SUPREMACY
CLAUSE IS THOUGHT TO REQUIRE STATE POLICY TO GIVE WAY.  A FAIRLY RECENT
EXAMPLE IS CLOVERLEAF CO. V. PATTERSON, 315 U.S. 148, WHERE A FEDERAL
COURT INJUNCTION IN A PRE-EMPTION CASE SUSPENDED ALABAMA'S PROGRAM FOR
CONTROL OF RENOVATED BUTTER - A DEMONSTRABLY IMPORTANT HEALTH MEASURE. 
THE COURT IN FLORIDA LIME GROWERS V. JACOBSEN, 362 U.S. 73, WHERE ONE
OF THE ISSUES WAS PRE-EMPTION OR CONFLICT BETWEEN TWO STATUTORY
SYSTEMS, EMPHASIZED THAT THE INTEREST OF THE STATES IN BEING FREE FROM
SUCH INJUNCTIVE INTERFERENCE AT THE INSTANCE OF A SINGLE JUDGE
OUTWEIGHED THE ADDITIONAL BURDENS THAT SUCH A RULE IMPOSED ON THE
FEDERAL COURT SYSTEM.  ON REFLECTION I THINK THAT RESULT BETTER
REFLECTS CONGRESSIONAL POLICY EVEN THOUGH, AS IN COHENS V. VIRGINIA,
THE END RESULT IS ONLY A MATTER OF STATUTORY CONSTRUCTION. 

ON THE BASIS OF VIRTUALLY NO EXPERIENCE IN APPLYING THAT
INTERPRETATION OF THE STATUTE, A MAJORITY HAS NOW DECIDED THAT THE RULE
OF KESLER IS "UNWORKABLE" AND, THEREFORE, THAT OUR PREVIOUS
INTERPRETATION OF THE STATUTE MUST HAVE BEEN INCORRECT.  I REGRET THAT
I AM UNABLE TO JOIN IN THAT DECISION.  MY OBJECTION IS NOT THAT THE
COURT HAS NOT GIVEN KESLER "A MORE RESPECTFUL BURIAL," GIDEON V.
WAINWRIGHT, 372 U.S. 335, 349 (CONCURRING OPINION), BUT THAT THE COURT
HAS ENGAGED IN UNWARRANTED INFANTICIDE. 

STARE DECISIS IS NO IMMUTABLE PRINCIPLE.  (FN5)  THERE ARE MANY
OCCASIONS WHEN THIS COURT HAS OVERTURNED A PRIOR DECISION, ESPECIALLY
IN MATTERS INVOLVING AN INTERPRETATION OF THE CONSTITUTION OR WHERE THE
PROBLEM OF STATUTORY CONSTRUCTION HAD CONSTITUTIONAL OVERTONES. 

AN ERROR IN INTERPRETING A FEDERAL STATUTE MAY BE EASILY REMEDIED. 
IF THIS COURT HAS FAILED TO PERCEIVE THE INTENTION OF CONGRESS, OR HAS
INTERPRETED A STATUTE IN SUCH A MANNER AS TO THWART THE LEGISLATIVE
PURPOSE, CONGRESS MAY CHANGE IT.  THE LESSONS OF EXPERIENCE ARE NOT
LEARNED BY JUDGES ALONE. 

I AM UNABLE TO FIND A JUSTIFICATION FOR OVERTURNING A DECISION OF
THIS COURT INTERPRETING THIS ACT OF CONGRESS, ANNOUNCED ONLY ON MARCH
26, 1962.    IF THE COURT WERE ABLE TO SHOW THAT OUR DECISION IN KESLER
HAD THROWN THE LOWER COURTS INTO CHAOS, A FAIR CASE FOR ITS DEMISE
MIGHT BE MADE OUT.  THE COURT CALLS THE RULE "UNWORKABLE."  BUT IT IS
NOT ENOUGH TO ATTACH THAT LABEL.  THE COURT BROADLY ASSERTS THAT "LOWER
COURTS HAVE QUITE EVIDENTLY SOUGHT TO AVOID DEALING WITH ITS (KESLER'S)
APPLICATION OR HAVE INTERPRETED IT WITH UNCERTAINTY."  FOR THIS
PROPOSITION, ONLY THREE CASES (IN ADDITION TO THE INSTANT CASE) ARE
CITED.  THE COURT'S FAILURE TO PROVIDE MORE COMPELLING DOCUMENTATION
FOR ITS INDICTMENT OF KESLER IS NOT THE RESULT OF LESS THAN METICULOUS
SCHOLARSHIP, FOR SO FAR AS I HAVE BEEN ABLE TO DISCOVER, THE TRUTH OF
THE MATTER IS THAT THERE ARE NO CASES (NOT EVEN THE THREE CITED) EVEN
REMOTELY WARRANTING THE CONCLUSION THAT KESLER IS "UNWORKABLE." 

KESLER WAS AN ATTEMPT TO HARMONIZE OUR EARLIER CASES.  IF THE KESLER
TEST IS "UNWORKABLE" AS THE COURT ASSERTS, WE SHOULD NONETHELESS ACCEPT
ITS BASIC PREMISE: 

"NEITHER THE LANGUAGE OF SEC 2281 NOR THE PURPOSE WHICH GAVE RISE TO
IT AFFORDS THE REMOTEST REASON FOR CARVING OUT AN UNFRIVOLOUS CLAIM OF
UNCONSTITUTIONALITY BECAUSE OF THE SUPREMACY CLAUSE FROM THE
COMPREHENSIVE LANGUAGE OF SEC 2281."  369 U.S., AT 156. 

IF THERE IS OVERRULING TO BE DONE, WE SHOULD OVERRULE EX PARTE BUDER,
271 U.S. 461, AND EX PARTE BRANSFORD, 310 U.S. 354. 

THAT THE GROUND OF UNCONSTITUTIONALITY IN MANY SO-CALLED SUPREMACY
CLAUSE CASES IS FOUND ONLY IN THE ASSERTED CONFLICT BETWEEN FEDERAL AND
STATE STATUTES IS, AS I HAVE SAID, NO BASIS FOR DISTINGUISHING THAT
CLASS OF CASES FROM OTHERS IN WHICH THREE-JUDGE COURTS ARE PLAINLY
REQUIRED.  WHILE COURTS ARE, STRICTLY SPEAKING, ENGAGING IN STATUTORY
CONSTRUCTION IN SUCH CASES, THE TASK OF ADJUDICATION IS MUCH THE SAME
AS IN WHAT ALL WOULD CONCEDE TO BE CONSTITUTIONAL ADJUDICATION.  THOUGH
THE PURPOSE OF CONGRESS IS THE FINAL TOUCHSTONE, THE INTERESTS WHICH
MUST BE TAKEN INTO ACCOUNT IN EITHER CASE ARE MUCH THE SAME, AS COHENS
V. VIRGINIA ELOQUENTLY DEMONSTRATES. 

THE COURT HAS DECIDED, ON NO MORE THAN THE GLOOMY PREDICTIONS
CONTAINED IN A HANDFUL OF LAW REVIEW ARTICLES, THAT KESLER WOULD
INEVITABLY PRODUCE CHAOS IN THE FEDERAL COURTS, THAT THE RULE ANNOUNCED
THERE IS "UNWORKABLE."  THOSE PREDICTIONS HAVE PLAINLY NOT BEEN BORNE
OUT.  IF DIFFICULTIES ARISE, CONGRESS CAN CURE THEM.  UNTIL CONGRESS
ACTS, I WOULD LET KESLER STAND. 

I THEREFORE BELIEVE THAT A THREE-JUDGE COURT WAS PROPERLY CONVENED
AND THAT WE SHOULD DECIDE THIS APPEAL ON THE MERITS. 

FN1  SEE 1 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY, P. 552
ET SEQ. (1928). 

"THE RICHMOND ENQUIRER SPOKE OF THE OPINION, 'SO IMPORTANT IN ITS
CONSEQUENCES AND SO OBNOXIOUS IN ITS DOCTRINES,' AND SAID THAT 'THE
VERY TITLE OF THE CASE IS ENOUGH TO STIR ONE'S BLOOD.'  IT FEARED THAT
'THE JUDICIARY POWER, WITH A FOOT AS NOISELESS AS TIME AND A SPIRIT AS
GREEDY AS THE GRAVE, IS SWEEPING TO THEIR DESTRUCTION THE RIGHTS OF THE
STATES  ...  .  THESE ENCROACHMENTS HAVE INCREASED, ARE INCREASING AND
OUGHT TO BE DIMINISHED'; AND IT ADVOCATED A REPEAL OF THE FATAL SECTION
OF THE JUDICIARY ACT AS 'THE MOST ADVISABLE AND CONSTITUTIONAL REMEDY
FOR THE EVIL.'  A LEADING OHIO PAPER SPOKE OF 'THE ALARMING PROGRESS OF
THE SUPREME COURT IN SUBVERTING THE FEDERALIST PRINCIPLES OF THE
CONSTITUTION AND INTRODUCING ON THEIR RUINS A MIGHTY CONSOLIDATED
EMPIRE FITTED FOR THE SCEPTRE OF A GREAT MONARCH'; AND IT CONTINUED:
"THAT THE WHOLE TENOR OF THEIR DECISIONS, WHEN STATE-RIGHTS HAVE BEEN
INVOLVED, HAVE HAD A DIRECT TENDENCY TO REDUCE OUR GOVERNORS TO THE
CONDITION OF MERE PROVINCIAL SATRAPS, AND THAT A SILENT ACQUIESCENCE IN
THESE DECISIONS WILL BRING US TO THIS LAMENTABLE RESULT, IS TO US AS
CLEAR AS MATHEMATICAL DEMONSTRATION.'"  ID., AT 552-553. 

FN2  THUS THE DISSENT IN CLOVERLEAF CO. V. PATTERSON, 315 U.S. 148,
179, CALLED THAT DECISION IN FAVOR OF PRE-EMPTION "PURELY DESTRUCTIVE
LEGISLATION."  AND SEE RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218;
CAMPBELL V. HUSSEY, 368 U.S. 297.  CF. HOSTETTER V. IDLEWILD LIQUOR
CORP., 377 U.S. 324. 

FN3  H.R. 3, 88TH CONG., 1ST SESS., IN MATERIAL PART PROVIDED: 

"NO ACT OF CONGRESS SHALL BE CONSTRUED AS INDICATING AN INTENT ON THE
PART OF CONGRESS TO OCCUPY THE FIELD IN WHICH SUCH ACT OPERATES, TO THE
EXCLUSION OF ALL STATE LAWS ON THE SAME SUBJECT MATTER, UNLESS SUCH ACT
CONTAINS AN EXPRESS PROVISION TO THAT EFFECT, OR UNLESS THERE IS A
DIRECT AND POSITIVE CONFLICT BETWEEN SUCH ACT AND A STATE LAW SO THAT
THE TWO CANNOT BE RECONCILED OR CONSISTENTLY STAND TOGETHER." 

THE FIRST VERSION OF THE BILL WAS INTRODUCED IN 1956.  THE HOUSE
COMMITTEE ON THE JUDICIARY MADE NUMEROUS CHANGES, LIMITING ITS
APPLICATION TO THE SUBJECT OF SUBVERSION, AND REPORTED THE BILL OUT
WITH A "DO PASS" RECOMMENDATION.  H.R. REP. NO. 2575, 84TH CONG., 2D
SESS.  THE SENATE VERSION, S. 3143, WAS NOT SO NARROWED IN COMMITTEE. 
S. REP. NO. 2230, 84TH CONG., 2D SESS.  THE BILL WAS NOT PASSED IN
EITHER THE HOUSE OR THE SENATE. 

H.R. 3 WAS AGAIN INTRODUCED IN THE EIGHTY-FIFTH CONGRESS.  THE
JUDICIARY COMMITTEE AGAIN RECOMMENDED THAT THE BILL "DO PASS," BUT THIS
TIME DID NOT NARROW ITS SCOPE TO THE SUBJECT OF SUBVERSION.  SEE H.R.
REP. NO. 1878, 85TH CONG., 2D SESS.  IT WAS PASSED BY THE HOUSE ON JULY
17, 1958. 

H.R. 3, HAVING ONCE AGAIN BEEN APPROVED BY THE JUDICIARY COMMITTEE,
H.R. REP. NO. 422, 86TH CONG., 1ST SESS., WAS APPROVED BY THE HOUSE ON
JUNE 24, 1959. 

IN THE EIGHTY-SEVENTH CONGRESS, H.R. 3 WAS FAVORABLY REPORTED OUT BY
THE JUDICIARY COMMITTEE.  H.R. REP. NO. 1820, 87TH CONG., 2D SESS., BUT
WAS NOT ACTED UPON BY THE FULL HOUSE. 

FN4  THE CONCERN OF CONGRESS IN THIS CHAPTER OF FEDERAL-STATE
RELATIONS DID NOT CONCERN THE THREE-JUDGE COURT PROBLEM BUT THE BROADER
ASPECTS ENVISAGED BY SUCH CASES AS PENNSYLVANIA V. NELSON, 350 U.S.
497, PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672, SLOCHOWER V.
BOARD OF EDUCATION, 350 U.S. 551, RAILWAY EMPLOYES V. HANSON, 351 U.S.
225, AND CLOVERLEAF CO. V. PATTERSON, 315 U.S. 148.  SEE H.R. REP. NO.
1820, 87TH CONG., 2D SESS., P. 3 ET SEQ. 

FN5  SEE RADIN, CASE LAW AND STARE DECISIS, 33 COL. L. REV. 199
(1933). 
..END :










UNITED STATES V. ROMANO 382 U.S. 136 


NO. 2.  ARGUED OCTOBER 14, 1965.  - DECIDED NOVEMBER 22, 1965.  - 330
F.2D 566, AFFIRMED. 


RESPONDENTS, WHO WERE FOUND BY FEDERAL OFFICERS NEAR AN OPERATING
STILL, WERE INDICTED ON THREE COUNTS CHARGING, IN COUNT 1, THE
POSSESSION, CUSTODY AND CONTROL OF AN ILLEGAL STILL IN VIOLATION OF 26
U.S.C. SEC 5601(A)(1); IN COUNT 2, THE ILLEGAL PRODUCTION OF DISTILLED
SPIRITS IN VIOLATION OF SEC 5601(A)(8); AND, IN COUNT 3, A CONSPIRACY
TO PRODUCE DISTILLED SPIRITS.  RESPONDENTS WERE CONVICTED AND GIVEN
CONCURRENT PRISON SENTENCES ON EACH COUNT AND FINED ON COUNT 1.  THE
COURT OF APPEALS AFFIRMED THE CONSPIRACY CONVICTIONS BUT REVERSED THE
SUBSTANTIVE CONVICTIONS, HOLDING INVALID UNDER THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT AN INSTRUCTION AND STATUTORY INFERENCE EMBODIED
THEREIN BASED ON SECS 5601(B)(1) AND (4), WHICH PROVIDE IN PART THAT
PRESENCE OF A DEFENDANT AT AN ILLEGAL STILL SITE SHALL BE SUFFICIENT
EVIDENCE TO AUTHORIZE CONVICTION UNDER SECS 5601(A)(1) AND (8) UNLESS
HE EXPLAINS SUCH PRESENCE TO THE JURY'S SATISFACTION.  HELD: 

1.  IT IS UNNECESSARY TO CONSIDER THE VALIDITY OF SEC 5601(B)(4) AND
THE CONVICTIONS UNDER COUNT 2 SINCE THE SENTENCES THEREON WERE
CONCURRENT WITH THE UNCHALLENGED SENTENCES IMPOSED ON COUNT 3.  P.
138. 

2.  THE STATUTORY INFERENCE IN SEC 5601(B)(1) IS INVALID SINCE
PRESENCE AT AN ILLEGAL STILL CARRIES NO REASONABLE INFERENCE OF THE
CRIME OF POSSESSION, CUSTODY, OR CONTROL OF THE STILL PROSCRIBED BY SEC
5601(A)(1).  UNITED STATES V. GAINEY, 380 U.S. 63, DISTINGUISHED.  PP.
139-144. 

UNITED STATES V. ROMANO ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

FEDERAL OFFICERS, ARMED WITH A SEARCH WARRANT, ENTERED ONE OF THE
BUILDINGS IN AN INDUSTRIAL COMPLEX IN JEWETT CITY, CONNECTICUT.  THERE
THEY FOUND RESPONDENTS STANDING A FEW FEET FROM AN OPERATING STILL. 
RESPONDENTS (FN1) WERE INDICTED ON THREE COUNTS:  COUNT 1 CHARGED
POSSESSION, CUSTODY AND CONTROL OF AN ILLEGAL STILL IN VIOLATION OF 26
U.S.C. SEC 5601(A)(1); (FN2) COUNT 2, THE ILLEGAL PRODUCTION OF
DISTILLED SPIRITS IN VIOLATION OF 26 U.S.C. SEC 5601(A)(8); (FN3) AND
COUNT 3, A CONSPIRACY TO PRODUCE DISTILLED SPIRITS.  BOTH RESPONDENTS
WERE CONVICTED ON ALL THREE COUNTS, BOTH WERE FINED ON COUNT 1 AND BOTH
SENTENCED TO CONCURRENT TERMS OF IMPRISONMENT ON EACH OF THE THREE
COUNTS. 

THE COURT OF APPEALS AFFIRMED THE CONVICTIONS ON COUNT 3.  330 F.2D
566.  IT REVERSED THE CONVICTIONS ON COUNTS 1 AND 2 BECAUSE THE TRIAL
COURT IN INSTRUCTING THE JURY READ VERBATIM PROVISIONS OF SEC
5601(B)(1) (FN4) AND SEC 5601(B)(4), (FN5) WHICH PROVIDE IN PART THAT
THE PRESENCE OF THE DEFENDANT AT THE SITE OF AN ILLEGAL STILL "SHALL BE
DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION, UNLESS THE
DEFENDANT EXPLAINS SUCH PRESENCE TO THE SATISFACTION OF THE JURY  ...
."  THIS INSTRUCTION AND THE STATUTORY INFERENCE WHICH IT EMBODIED WERE
HELD BY THE COURT OF APPEALS TO VIOLATE THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT.  WE GRANTED CERTIORARI TO CONSIDER THIS CONSTITUTIONAL
ISSUE.  380 U.S. 941. 

WE AGREE AS TO THE INVALIDITY OF SEC 5601(B)(1) AND THE REVERSAL OF
THE CONVICTIONS ON COUNT 1.  IT IS UNNECESSARY, HOWEVER, TO CONSIDER
THE VALIDITY OF SEC 5601(B)(4) AND THE CONVICTIONS ON COUNT 2 SINCE THE
SENTENCES ON THAT COUNT WERE CONCURRENT WITH THE SENTENCES, NOT HERE
CHALLENGED, WHICH WERE IMPOSED ON COUNT 3.  UNITED STATES V. GAINEY,
380 U.S. 63, 65; SINCLAIR V. UNITED STATES, 279 U.S. 263, 299. 

IF WE WERE REVIEWING ONLY THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT
THE VERDICT ON COUNT 1, THAT CONVICTION WOULD BE SUSTAINED.  THERE WAS,
AS THE COURT OF APPEALS RECOGNIZED, AMPLE EVIDENCE IN ADDITION TO
PRESENCE AT THE STILL TO SUPPORT THE CHARGE OF POSSESSION OF AN ILLEGAL
STILL.  BUT HERE, IN ADDITION TO A STANDARD INSTRUCTION ON REASONABLE
DOUBT, THE JURY WAS TOLD THAT THE DEFENDANTS' PRESENCE AT THE STILL
"SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION."  THIS
LATTER INSTRUCTION MAY HAVE BEEN GIVEN CONSIDERABLE WEIGHT BY THE JURY;
THE JURY MAY HAVE DISBELIEVED OR DISREGARDED THE OTHER EVIDENCE OF
POSSESSION AND CONVICTED THESE DEFENDANTS ON THE EVIDENCE OF PRESENCE
ALONE.  WE THUS AGREE WITH THE COURT OF APPEALS THAT THE VALIDITY OF
THE STATUTORY INFERENCE IN THE DISPUTED INSTRUCTION MUST BE FACED AND
DECIDED. 

THE TEST TO BE APPLIED TO THE KIND OF STATUTORY INFERENCE INVOLVED IN
THIS CRIMINAL CASE IS NOT IN DISPUTE.  IN TOT V. UNITED STATES, 319
U.S. 463, THE COURT, RELYING ON A LINE OF CASES DATING FROM 1910, (FN6)
REAFFIRMED THE LIMITS WHICH THE FIFTH AND FOURTEENTH AMENDMENTS PLACE
"UPON THE POWER OF CONGRESS OR THAT OF A STATE LEGISLATURE TO MAKE THE
PROOF OF ONE FACT OR GROUP OF FACTS EVIDENCE OF THE EXISTENCE OF THE
ULTIMATE FACT ON WHICH GUILT IS PREDICATED."  ID., AT 467.  SUCH A
LEGISLATIVE DETERMINATION WOULD NOT BE SUSTAINED IF THERE WAS "NO
RATIONAL CONNECTION BETWEEN THE FACT PROVED AND THE ULTIMATE FACT
PRESUMED, IF THE INFERENCE OF THE ONE FROM PROOF OF THE OTHER IS
ARBITRARY BECAUSE OF LACK OF CONNECTION BETWEEN THE TWO IN COMMON
EXPERIENCE  ...  .  WHERE THE INFERENCE IS SO STRAINED AS NOT TO HAVE A
REASONABLE RELATION TO THE CIRCUMSTANCES OF LIFE AS WE KNOW THEM, IT IS
NOT COMPETENT FOR THE LEGISLATURE TO CREATE IT AS A RULE GOVERNING THE
PROCEDURE OF COURTS."  ID., AT 467-468.  JUDGED BY THIS STANDARD, THE
STATUTORY PRESUMPTION IN ISSUE THERE WAS FOUND CONSTITUTIONALLY
INFIRM. 

JUST LAST TERM, IN UNITED STATES V. GAINEY, 380 U.S. 63, THE COURT
PASSED UPON THE VALIDITY OF A COMPANION SECTION TO SEC 5601(B)(1) OF
THE INTERNAL REVENUE CODE.  THE CONSTITUTIONALITY OF THE LEGISLATION
WAS HELD TO DEPEND UPON THE "RATIONALITY OF THE CONNECTION 'BETWEEN THE
FACTS PROVED AND THE ULTIMATE FACT PRESUMED.'"  380 U.S., AT 66. 
TESTED BY THIS RULE, THE COURT SUSTAINED THE PROVISION OF 26 U.S.C. SEC
5601(B)(2) DECLARING PRESENCE AT A STILL TO BE SUFFICIENT EVIDENCE TO
AUTHORIZE CONVICTION UNDER 26 U.S.C. SEC 5601(1)(4) FOR CARRYING ON THE
BUSINESS OF THE DISTILLERY WITHOUT GIVING THE REQUIRED BOND.  NOTING
THAT ALMOST ANYONE AT THE SITE OF A SECRET STILL COULD REASONABLY BE
SAID TO BE CARRYING ON THE BUSINESS OR AIDING AND ABETTING IT AND THAT
CONGRESS HAD ACCORDED THE EVIDENCE OF PRESENCE ONLY ITS "NATURAL
PROBATIVE FORCE," THE COURT SUSTAINED THE PRESUMPTION. 

THIS CASE IS MARKEDLY DIFFERENT FROM GAINEY, SUPRA.  CONGRESS HAS
CHOSEN IN THE RELEVANT PROVISIONS OF THE INTERNAL REVENUE CODE TO FOCUS
UPON VARIOUS PHASES AND ASPECTS OF THE DISTILLING BUSINESS AND TO MAKE
EACH OF THEM A SEPARATE CRIME.  COUNT 1 OF THIS INDICTMENT CHARGES
"POSSESSION, CUSTODY AND  ...  CONTROL" OF AN ILLEGAL STILL AS A
SEPARATE, DISTINCT OFFENSE.  SECTION 5601(A)(1) OBVIOUSLY HAS A MUCH
NARROWER COVERAGE THAN HAS SEC 5601(A)(4) WITH ITS SWEEPING PROHIBITION
OF CARRYING ON A DISTILLING BUSINESS. 

IN BOZZA V. UNITED STATES, 330 U.S. 160, THE COURT SQUARELY HELD, AND
THE UNITED STATES CONCEDED, THAT PRESENCE ALONE WAS INSUFFICIENT
EVIDENCE TO CONVICT OF THE SPECIFIC OFFENSE PROSCRIBED BY SEC
5601(A)(1), ABSENT SOME EVIDENCE THAT THE DEFENDANT ENGAGED IN CONDUCT
DIRECTLY RELATED TO THE CRIME OF POSSESSION , CUSTODY OR CONTROL.  THAT
OFFENSE WAS CONFINED TO THOSE WHO HAD "CUSTODY OR POSSESSION" OF THE
STILL OR ACTED IN SOME "OTHER CAPACITY CALCULATED TO FACILITATE THE
CUSTODY OR POSSESSION, SUCH AS, FOR ILLUSTRATION, SERVICE AS A
CARETAKER, WATCHMAN, LOOKOUT OR IN SOME OTHER CAPACITY."  ID., AT 164. 
THIS REQUIREMENT WAS NOT SATISFIED IN THE BOZZA CASE EITHER BY THE
EVIDENCE SHOWING PARTICIPATION IN THE DISTILLING OPERATIONS OR BY THE
FACT THAT THE DEFENDANT HELPED TO CARRY THE FINISHED PRODUCT TO
DELIVERY VEHICLES.  THESE FACTS, AND CERTAINLY MERE PRESENCE AT THE
STILL, WERE INSUFFICIENT PROOF THAT "PETITIONER EVER EXERCISED, OR
AIDED THE EXERCISE OF, ANY CONTROL OVER THE DISTILLERY."  IBID. 

PRESENCE AT AN OPERATING STILL IS SUFFICIENT EVIDENCE TO PROVE THE
CHARGE OF "CARRYING ON" BECAUSE ANYONE PRESENT AT THE SITE IS VERY
PROBABLY CONNECTED WITH THE ILLEGAL ENTERPRISE.  WHATEVER HIS JOB MAY
BE, HE IS AT THE VERY LEAST AIDING AND ABETTING THE SUBSTANTIVE CRIME
OF CARRYING ON THE ILLEGAL DISTILLING BUSINESS.  SECTION 5601(A)(1),
HOWEVER, PROSCRIBES POSSESSION, CUSTODY OR CONTROL.  THIS IS ONLY ONE
OF THE VARIOUS ASPECTS OF THE TOTAL UNDERTAKING, MANY OF WHICH HAVE
NOTHING AT ALL TO DO WITH POSSESSION, AS BOZZA MADE QUITE CLEAR AND AS
THE UNITED STATES CONCEDED IN THAT CASE.  PRESENCE TELLS US ONLY THAT
THE DEFENDANT WAS THERE AND VERY LIKELY PLAYED A PART IN THE ILLICIT
SCHEME.  BUT PRESENCE TELLS US NOTHING ABOUT WHAT THE DEFENDANT'S
SPECIFIC FUNCTION WAS AND CARRIES NO LEGITIMATE, RATIONAL OR REASONABLE
INFERENCE THAT HE WAS ENGAGED IN ONE OF THE SPECIALIZED FUNCTIONS
CONNECTED WITH POSSESSION, RATHER THAN IN ONE OF THE SUPPLY, DELIVERY
OR OPERATIONAL ACTIVITIES HAVING NOTHING TO DO WITH POSSESSION. 
PRESENCE IS RELEVANT AND ADMISSIBLE EVIDENCE IN A TRIAL ON A POSSESSION
CHARGE; BUT ABSENT SOME SHOWING OF THE DEFENDANT'S FUNCTION AT THE
STILL, ITS CONNECTION WITH POSSESSION IS TOO TENUOUS TO PERMIT A
REASONABLE INFERENCE OF GUILT - "THE INFERENCE OF THE ONE FROM PROOF OF
THE OTHER IS ARBITRARY  ...  ."  TOT V. UNITED STATES, 319 U.S. 463,
467. 

THE UNITED STATES HAS PRESENTED NO CASES IN THE COURTS WHICH HAVE
SUSTAINED A CONVICTION FOR POSSESSION BASED SOLELY ON THE EVIDENCE OF
PRESENCE.  ALL OF THE CASES WHICH DEAL WITH THIS ISSUE AND WITH WHICH
WE ARE FAMILIAR HAVE HELD PRESENCE ALONE, UNILLUMINATED BY OTHER FACTS,
TO BE INSUFFICIENT PROOF OF POSSESSION.  (FN7)  MOREOVER, THE
GOVERNMENT APPARENTLY CONCEDES IN THIS CASE THAT EXCEPT FOR THE
CIRCUMSTANCES SURROUNDING THE ADOPTION OF THE 1958 AMENDMENTS TO THE
INTERNAL REVENUE CODE, WHICH ADDED THE PRESUMPTIONS RELATING TO ILLEGAL
DISTILLING OPERATIONS, THE CRIME OF POSSESSION COULD NOT VALIDLY BE
INFERRED FROM MERE PRESENCE AT THE STILL SITE.  (FN8) 

ACCORDING TO THE GOVERNMENT, HOWEVER, THE 1958 AMENDMENTS WERE, AMONG
OTHER THINGS, DESIGNED TO OVERRULE BOZZA AND MUST BE VIEWED AS
BROADENING THE SUBSTANTIVE CRIME OF POSSESSION TO INCLUDE ALL THOSE
PRESENT AT A SET-UP STILL WHO HAVE ANY CONNECTION WITH THE ILLICIT
ENTERPRISE.  (FN9)  SO BROADENED, IT IS ARGUED, THE SUBSTANTIVE CRIME
OF "POSSESSING," UNDER THE TEACHINGS OF GAINEY, COULD BE ACCEPTABLY
PROVED BY SHOWING PRESENCE ALONE. 

WE ARE NOT PERSUADED BY THIS ARGUMENT, PRIMARILY BECAUSE THE
AMENDMENTS DID NOT CHANGE A WORD OF SEC 5601(A)(1), WHICH DEFINES THE
SUBSTANTIVE CRIME.  POSSESSION, CUSTODY OR CONTROL REMAINS THE CRIME
WHICH THE GOVERNMENT MUST PROVE.  THE AMENDMENTS, INSOFAR AS RELEVANT
HERE, SIMPLY ADDED SEC 5601(B)(1) AND PERMITTED AN INFERENCE OF
POSSESSION FROM THE FACT OF PRESENCE.  MOREOVER, THE INFERENCE WAS NOT
IRREBUTTABLE.  IT WAS ALLOWABLE ONLY IF THE DEFENDANT FAILED TO EXPLAIN
HIS PRESENCE TO THE SATISFACTION OF THE JURY.  PLAINLY, IT SEEMS TO US,
THE DEFENDANT WOULD BE EXONERATED IF HE SATISFACTORILY EXPLAINED OR THE
CIRCUMSTANCES SHOWED THAT HIS FUNCTION AT THE STILL WAS NOT IN
FURTHERANCE OF THE SPECIFIC CRIME OF POSSESSION, CUSTODY OR CONTROL. 
IF A DEFENDANT IS CHARGED WITH POSSESSION AND IT IS UNMISTAKABLY SHOWN
THAT DELIVERY, FOR EXAMPLE, WAS HIS SOLE DUTY, IT WOULD SEEM VERY ODD
UNDER THE PRESENT FORMULATION OF THE CODE TO HOLD THAT HIS EXPLANATION
HAD MERELY PROVED HIS GUILT OF "POSSESSING" BY SHOWING SOME CONNECTION
WITH THE ILLEGAL BUSINESS. 

THE GOVERNMENT'S POSITION WOULD EQUATE "POSSESSING" WITH "CARRYING
ON."  WE ARE NOT CONVINCED THAT THE AMENDMENTS TO THE CODE INCLUDED IN
THE EXCISE TAX TECHNICAL CHANGES ACT OF 1958 WERE INTENDED TO WORK ANY
SUCH SUBSTANTIVE CHANGE IN THE BASIC SCHEME OF THE ACT, WHICH WAS, IN
THE WORDS OF THE GOVERNMENT'S BRIEF IN THIS COURT, "TO MAKE CRIMINAL
EVERY MEANINGFUL FORM OF PARTICIPATION IN, OR ASSISTANCE TO, THE
OPERATION OF AN ILLEGAL STILL BY AN ELABORATE PATTERN OF PARTIALLY
REDUNDANT PROVISIONS - SOME SPECIFIC AND SOME GENERAL - DESIGNED TO
CLOSE ALL LOOPHOLES."  POSSESSION, CUSTODY OR CONTROL WAS ONE OF THE
SPECIFIC CRIMES DEFINED IN THE CODE AND WE DO NOT THINK THAT THE 1958
AMENDMENTS WORKED ANY CHANGE IN THIS REGARD.  (FN10)  ON THE
LEGISLATIVE RECORD BEFORE US, WE REJECT THE GOVERNMENT'S EXPANSIVE
READING OF THE 1958 AMENDMENTS. 

CONGRESS MAY HAVE INTENDED BY THE 1958 AMENDMENTS TO AVOID THE BOZZA
CASE.  BUT IT CHOSE TO DO SO, NOT BY CHANGING THE DEFINITION OF THE
SUBSTANTIVE CRIME, BUT BY DECLARING PRESENCE TO BE SUFFICIENT EVIDENCE
TO PROVE THE CRIME OF POSSESSION BEYOND REASONABLE DOUBT.  THIS
APPROACH OBVIOUSLY FAILS UNDER THE STANDARDS TRADITIONALLY APPLIED TO
SUCH LEGISLATION.  IT MAY BE, OF COURSE, THAT CONGRESS HAS THE POWER TO
MAKE PRESENCE AT AN ILLEGAL STILL A PUNISHABLE CRIME, BUT WE FIND NO
CLEAR INDICATION THAT IT INTENDED TO SO EXERCISE THIS POWER.  (FN11)
THE CRIME REMAINS POSSESSION, NOT PRESENCE, AND, WITH ALL DUE DEFERENCE
TO THE JUDGMENT OF CONGRESS, THE FORMER MAY NOT CONSTITUTIONALLY BE
INFERRED FROM THE LATTER.  AFFIRMED. 

FN1  RESPONDENTS WERE INDICTED WITH TWO OTHERS WHOS CONVICTIONS ARE
NOT IN ISSUE HERE. 

FN2  SECTION 5601(A)(1) PROVIDES THAT ANY PERSON WHO "HAS IN HIS
POSSESSION OR CUSTODY, OR UNDER HIS CONTROL, ANY STILL OR DISTILLING
APPARATUS SET UP WHICH IS NOT REGISTERED, AS REQUIRED BY SECTION
5179(A)  ...  SHALL BE FINED NOT MORE THAN $10,000, OR IMPRISONED NOT
MORE THAN 5 YEARS, OR BOTH  ...  ." 

FN3  SECTION 5601(A)(8) PROVIDES THAT ANY PERSON WHO, "NOT BEING A
DISTILLER AUTHORIZED BY LAW TO PRODUCE DISTILLED SPIRITS, PRODUCES
DISTILLED SPIRITS BY DISTILLATION OR ANY OTHER PROCESS FROM ANY MASH,
WORT, WASH, OR OTHER MATERIAL  ...  SHALL BE FINED NOT MORE THAN
$10,000, OR IMPRISONED NOT MORE THAN 5 YEARS, OR BOTH  ...  ." 

FN4  SECTION 5601(B)(1) OF 26 U.S.C. PROVIDES:  "WHENEVER ON TRIAL
FOR VIOLATION OF SUBSECTION (A)(1) THE DEFENDANT IS SHOWN TO HAVE BEEN
AT THE SITE OR PLACE WHERE, AND AT THE TIME WHEN, A STILL OR DISTILLING
APPARATUS WAS SET UP WITHOUT HAVING BEEN REGISTERED, SUCH PRESENCE OF
THE DEFENDANT SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE
CONVICTION, UNLESS THE DEFENDANT EXPLAINS SUCH PRESENCE TO THE
SATISFACTION OF THE JURY (OR OF THE COURT WHEN TRIED WITHOUT JURY)." 

FN5  SECTION 5601(B)(4) OF 26 U.S.C. PROVIDES:  "WHENEVER ON TRIAL
FOR VIOLATION OF SUBSECTION (A)(8) THE DEFENDANT IS SHOWN TO HAVE BEEN
AT THE SITE OR PLACE WHERE, AND AT THE TIME WHEN, SUCH DISTILLED
SPIRITS WERE PRODUCED BY DISTILLATION OR ANY OTHER PROCESS FROM MASH,
WORT, WASH, OR OTHER MATERIAL, SUCH PRESENCE OF THE DEFENDANT SHALL BE
DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION, UNLESS THE
DEFENDANT EXPLAINS SUCH PRESENCE TO THE SATISFACTION OF THE JURY (OR OF
THE COURT WHEN TRIED WITHOUT JURY)."    FN6  MOBILE, J.&K.C.R. CO. V.
TURNIPSEED, 219 U.S. 35; BAILEY V. ALABAMA, 219 U.S. 219; LINDSLEY V.
NATURAL CARBONIC GAS CO., 220 U.S. 61; MCFARLAND V. AMERICAN SUGAR
RFG.  CO., 241 U.S. 79; MANLEY V. GEORGIA, 279 U.S. 1; WESTERN &
ATLANTIC R. CO. V. HENDERSON, 279 U.S. 639; MORRISON V. CALIFORNIA, 291
U.S. 82. 

FN7  E.G., PUGLIESE V. UNITED STATES, 343 F.2D 837 (C.A. 1ST CIR.,
1965); BARRETT V. UNITED STATES, 322 F.2D 292 (C.A. 5TH CIR., 1963),
REV'D ON OTHER GROUNDS, SUB NOM. UNITED STATES V. GAINEY, 380 U.S. 63;
MCFARLAND V. UNITED STATES, 273 F.2D 417 (C.A. 5TH CIR., 1960)(DICTUM);
VICK V. UNITED STATES, 216 F.2D 228 (C.A. 5TH CIR., 1954); UNITED
STATES V. DE VITO, 68 F.2D 837 (C.A.2D CIR., 1934); GRACEFFO V. UNITED
STATES, 46 F.2D 852 (C.A. 3D CIR., 1931). 

FN8  BRIEF FOR PETITIONER, P. 14.  SEE ALSO BRIEF FOR PETITIONER, P.
33, UNITED STATES V. GAINEY, 380 U.S. 63; BOZZA V. UNITED STATES, 330
U.S. 160, 164. 

FN9  THE RELEVANT SENATE AND HOUSE REPORTS DISCUSSING THE
PRESUMPTIONS ADDED BY SEC 5601(B) ARE IN IDENTICAL LANGUAGE, WHICH WAS
BORROWED FROM AN ANALYSIS PREPARED BY THE ALCOHOL AND TOBACCO TAX
DIVISION OF THE INTERNAL REVENUE SERVICE (SEE HEARINGS BEFORE A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON WAYS AND MEANS ON EXCISE TAX
TECHNICAL AND ADMINISTRATIVE PROBLEMS, PART I, 84TH CONG., 1ST SESS.,
P. 208: 

"THESE PARAGRAPHS ARE NEW.  THEIR PURPOSE IS TO CREATE A REBUTTABLE
PRESUMPTION OF GUILT IN THE CASE OF A PERSON WHO IS FOUND AT ILLICIT
DISTILLING OR RECTIFYING PREMISES, BUT WHO, BECAUSE OF THE PRACTICAL
IMPOSSIBILITY OF PROVING HIS ACTUAL PARTICIPATION IN THE ILLEGAL
ACTIVITIES EXCEPT BY INFERENCE DRAWN FROM HIS PRESENCE WHEN THE ILLEGAL
ACTS WERE COMMITTED, CANNOT BE CONVICTED UNDER THE RULING OF THE
SUPREME COURT IN BOZZA V. UNITED STATES (330 U.S. 160). 

"THE PREVENTION OF THE ILLICIT PRODUCTION OR RECTIFICATION OF
ALCOHOLIC SPIRITS, AND THE CONSEQUENT DEFRAUDING OF THE UNITED STATES
OF TAX, HAS LONG BEEN RENDERED MORE DIFFICULT BY THE FAILURE TO OBTAIN
A CONVICTION OF A PERSON DISCOVERED AT THE SITE OF ILLICIT DISTILLING
OR RECTIFYING PREMISES, BUT WHO WAS NOT, AT THE TIME OF SUCH DISCOVERY,
ENGAGED IN DOING ANY SPECIFIC ACT. 

"IN THE BOZZA CASE, THE SUPREME COURT TOOK THE POSITION THAT TO
SUSTAIN CONVICTION, THE TESTIMONY 'MUST POINT DIRECTLY TO CONDUCT
WITHIN THE NARROW MARGINS WHICH THE STATUTE ALONE DEFINES.'  THESE NEW
PROVISIONS ARE DESIGNED TO AVOID THE EFFECT OF THAT HOLDING AS TO
FUTURE VIOLATIONS."  S. REP. NO. 2090, 85TH CONG., 2D SESS., PP. 188
189; H.R. REP. NO. 481, 85TH CONG., 1ST SESS., P. 175. 

FN10  IN REFERENCE TO THE RE-ENACTMENT OF SEC 5601(A)(1), THE
PROVISION THAT DEFINES THE SUBSTANTIVE OFFENSE, THE REPORTS MERELY SAY,
"THIS PARAGRAPH IS A RESTATEMENT OF EXISTING LAW  ... ."  S. REP. NO.
2090, 85TH CONG., 2D SESS., P. 186; H.R. REP. NO. 481, 85TH CONG., 1ST
SESS., P. 173. 

FN11  THE GOVERNMENT ADVANCED A SOMEWHAT SIMILAR CONTENTION IN TOT. 
IT WAS REJECTED, PARTLY ON THE GROUND THAT IT WAS NOT SUPPORTED BY
LEGISLATIVE HISTORY.  TOT V. UNITED STATES, 319 U.S. 463, 472.  CF.
UNITED STATES V. UNIVERSAL C.I.T. CREDIT CORP., 344 U.S. 218. 

MR. JUSTICE BLACK CONCURS IN THE REVERSAL OF THESE CONVICTIONS FOR
THE REASONS STATED IN HIS DISSENT AGAINST AFFIRMANCE OF THE CONVICTION
IN UNITED STATES V. GAINEY, 380 U.S. 63, 74. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT FOR THE REASONS STATED IN
HIS OPINION IN UNITED STATES V. GAINEY, 380 U.S. 63, 71. 

MR. JUSTICE FORTAS CONCURS IN THE RESULT. 
..END :















STEELWORKERS V. BOULIGNY, INC. 382 U.S. 145 


NO. 19.  ARGUED OCTOBER 21, 1965.  - DECIDED NOVEMBER 22, 1965.  - 336
F.2D 160, AFFIRMED. 


RESPONDENT, A NORTH CAROLINA CORPORATION, BROUGHT THIS DEFAMATION
ACTION IN A NORTH CAROLINA COURT AGAINST PETITIONER, AN UNINCORPORATED
LABOR UNION.  PETITIONER'S PRINCIPAL PLACE OF BUSINESS PURPORTEDLY IS
PENNSYLVANIA, WHERE FOR PURPOSES OF DIVERSITY JURISDICTION IT CLAIMED
CITIZENSHIP, THOUGH SOME OF ITS MEMBERS RESIDE IN NORTH CAROLINA. 
PETITONER REMOVED THE CASE TO A FEDERAL DISTRICT COURT, WHICH REFUSED
TO REMAND, FINDING NO PROPER BASIS FOR TREATING AN UNINCORPORATED LABOR
UNION DIFFERENTLY FROM A CORPORATION.  ON INTERLOCUTORY APPEAL THE
COURT OF APPEALS REVERSED AND DIRECTED THAT THE CASE BE REMANDED TO THE
STATE COURT.  HELD: 

1.  ARTICLE III, SEC. 2, OF THE CONSTITUTION EXTENDS FEDERAL
JURISDICTION TO SUITS BETWEEN "CITIZENS" OF DIFFERENT STATES.  A
CORPORATION FOR DIVERSITY PURPOSES HAS LONG BEEN DEEMED TO BE A CITIZEN
OF THE STATE IN WHICH IT IS INCORPORATED, LOUISVILLE, C.&C.  R. CO. V.
LETSON, 2 HOW.  497; MARSHALL V. BALTIMORE & O.R. CO., 16 HOW.  314,
AND SUCH STATUS IS RECOGNIZED BY STATUTE.  28 U.S.C. SEC. 1332(C).  PP.
147-148. 

2.  AN UNINCORPORATED LABOR UNION IS NOT A "CITIZEN" FOR PURPOSES OF
THE STATUTE CONFERRING DIVERSITY JURISDICTION, ITS CITIZENSHIP BEING
DEEMED THAT OF EACH OF ITS MEMBERS.  CHAPMAN V. BARNEY, 129 U.S. 677,
FOLLOWED; PUERTO RICO V. RUSSELL & CO., 288 U.S. 476, DISTINGUISHED. 
WHETHER ANY CHANGE IN THAT RULE IS TO BE MADE SO AS TO ASSIMILATE
UNINCORPORATED LABOR UNIONS TO THE STATUS OF CORPORATIONS FOR DIVERSITY
PURPOSES IS A MATTER FOR LEGISLATIVE, AND NOT JUDICIAL, DETERMINATION. 
PP. 149-153. 

UNITED STEELWORKERS OF AMERICA, AFL-CIO V. R.H. BOULIGNY, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, A NORTH CAROLINA CORPORATION, BROUGHT THIS ACTION IN A
NORTH CAROLINA STATE COURT.  IT SOUGHT $200,000 IN DAMAGES FOR
DEFAMATION ALLEGED TO HAVE OCCURRED DURING THE COURSE OF THE UNITED
STEELWORKERS' CAMPAIGN TO UNIONIZE RESPONDENT'S EMPLOYEES.  THE
STEELWORKERS, AN UNINCORPORATED LABOR UNION WHOSE PRINCIPAL PLACE OF
BUSINESS PURPORTEDLY IS PENNSYLVANIA, REMOVED THE CASE TO A FEDERAL
DISTRICT COURT.  (FN1)  THE UNION ASSERTED NOT ONLY FEDERAL-QUESTION
JURISDICTION, BUT THAT FOR PURPOSES OF THE DIVERSITY JURISDICTION IT
WAS A CITIZEN OF PENNSYLVANIA, ALTHOUGH SOME OF ITS MEMBERS WERE NORTH
CAROLINIANS. 

THE CORPORATION SOUGHT TO HAVE THE CASE REMANDED TO THE STATE COURTS,
CONTENDING THAT ITS COMPLAINT RAISED NO FEDERAL QUESTIONS AND RELYING
UPON THE GENERALLY PREVAILING PRINCIPLE THAT AN UNINCORPORATED
ASSOCIATION'S CITIZENSHIP IS THAT OF EACH OF ITS MEMBERS.  BUT THE
DISTRICT COURT RETAINED JURISDICTION.  THE DISTRICT JUDGE NOTED "A
TREND TO TREAT UNINCORPORATED ASSOCIATIONS IN THE SAME MANNER AS
CORPORATIONS AND TO TREAT THEM AS CITIZENS OF THE STATE WHEREIN THE
PRINCIPAL OFFICE IS LOCATED."  DIVINING "NO COMMON SENSE REASON FOR
TREATING AN UNINCORPORATED NATIONAL LABOR UNION DIFFERENTLY FROM A
CORPORATION," HE DECLINED TO FOLLOW WHAT HE STYLED "THE POORER REASONED
BUT MORE FIRMLY ESTABLISHED RULE" OF CHAPMAN V. BARNEY, 129 U.S. 677. 

OUR INTERLOCUTORY APPEAL THE COURT OF APPEALS FOR THE FOURTH CIRCUIT
REVERSED AND DIRECTED THAT THE CASE BE REMANDED TO THE STATE COURTS. 
336 F.2D 160.  CERTIORARI WAS GRANTED, 379 U.S. 958, SO THAT WE MIGHT
DECIDE WHETHER AN UNINCORPORATED LABOR UNION IS TO BE TREATED AS A
CITIZEN FOR PURPOSES OF FEDERAL DIVERSITY JURISDICTION, WITHOUT REGARD
TO THE CITIZENSHIP OF ITS MEMBERS.  (FN2)  BECAUSE WE BELIEVE THIS
PROPERLY A MATTER FOR LEGISLATIVE CONSIDERATION WHICH CANNOT ADEQUATELY
OR APPROPRIATELY BE DEALT WITH BY THIS COURT, WE AFFIRM THE DECISION OF
THE COURT OF APPEALS. 

ARTICLE III, SEC. 2, OF THE CONSTITUTION PROVIDES: 

"THE JUDICIAL POWER SHALL EXTEND  ...  TO CONTROVERSIES  ...  BETWEEN
CITIZENS OF DIFFERENT STATES  ...  ." 

CONGRESS LOST NO TIME IN IMPLEMENTING THE GRANT.  IN 1789 IT PROVIDED
FOR FEDERAL JURISDICTION IN SUITS "BETWEEN A CITIZEN OF THE STATE WHERE
THE SUIT IS BROUGHT, AND A CITIZEN OF ANOTHER STATE."  (FN3)  THERE
SHORTLY AROSE THE QUESTION AS TO WHETHER A CORPORATION - A CREATURE OF
STATE LAW - IS TO BE DEEMED A "CITIZEN" FOR PURPOSES OF THE STATUTE. 
THIS COURT, THROUGH CHIEF JUSTICE MARSHALL, INITIALLY RESPONDED IN THE
NEGATIVE, HOLDING THAT A CORPORATION WAS NOT A "CITIZEN" AND THAT IT
MIGHT SUE AND BE SUED UNDER THE DIVERSITY STATUTE ONLY IF NONE OF ITS
SHAREHOLDERS WAS A CO-CITIZEN OF ANY OPPOSING PARTY.  BANK OF THE
UNITED STATES V. DEVEAUX, 5 CRANCH 61.  IN 1844 THE COURT REVERSED
ITSELF AND RULED THAT A CORPORATION WAS TO BE TREATED AS A CITIZEN OF
THE STATE WHICH CREATED IT.  LOUISVILLE, C.&C.R. CO. V. LETSON, 2 HOW. 
497.  TEN YEARS LATER, THE COURT REACHED THE SAME RESULT BY A DIFFERENT
APPROACH.  IN A COMPROMISE DESTINED TO ENDURE FOR OVER A CENTURY, (FN4)
THE COURT INDULGED IN THE FICTION THAT, ALTHOUGH A CORPORATION WAS NOT
ITSELF A CITIZEN FOR DIVERSITY PURPOSES, ITS SHAREHOLDERS WOULD
CONCLUSIVELY BE PRESUMED CITIZENS OF THE INCORPORATING STATE.  MARSHALL
V. BALTIMORE & O.R. CO., 16 HOW.  314. 

CONGRESS RE-ENTERED THE LISTS IN 1875, SIGNIFICANTLY EXPANDING
DIVERSITY JURISDICTION BY DELETING THE REQUIREMENT IMPOSED IN 1789 THAT
ONE OF THE PARTIES MUST BE A CITIZEN OF THE FORUM STATE.  (FN5)  THE
RESULTING INCREASE IN THE QUANTITY OF DIVERSITY LITIGATION, HOWEVER,
COOLED ENTHUSIASTS OF THE JURISDICTION, AND IN 1887 AND 1888 CONGRESS
ENACTED SHARP CURBS.  IT QUADRUPLED THE JURISDICTIONAL AMOUNT, CONFINED
THE RIGHT OF REMOVAL TO NONRESIDENT DEFENDANTS, REINSTITUTED
PROTECTIONS AGAINST JURISDICTION BY COLLUSIVE ASSIGNMENT, AND NARROWED
VENUE.  (FN6) 

IT WAS IN THIS CLIMATE THAT THE COURT IN 1889 DECIDED CHAPMAN V.
BARNEY, SUPRA.  ON ITS OWN MOTION THE COURT OBSERVED THAT PLAINTIFF WAS
A JOINT STOCK COMPANY AND NOT A CORPORATION OR NATURAL PERSON.   IT
HELD THAT ALTHOUGH PLAINTIFF WAS ENDOWED BY NEW YORK WITH CAPACITY TO
SUE, IT COULD NOT BE CONSIDERED A "CITIZEN" FOR DIVERSITY PURPOSES. 
129 U.S., AT 682.  (FN7) 

IN RECENT YEARS COURTS AND COMMENTATORS HAVE REFLECTED
DISSATISFACTION WITH THE RULE OF CHAPMAN V. BARNEY.  (FN8)  THE
DISTINCTION BETWEEN THE "PERSONALITY" AND "CITIZENSHIP" OF CORPORATIONS
AND THAT OF LABOR UNIONS AND OTHER UNINCORPORATED ASSOCIATIONS, IT IS
INCREASINGLY ARGUED, HAS BECOME ARTIFICIAL AND UNREAL.  THE MERE FACT
THAT A CORPORATION IS ENDOWED WITH A BIRTH CERTIFICATE IS, THEY SAY, OF
NO CONSEQUENCE.  IN TRUTH AND IN FACT, THEY POINT OUT, MANY VOLUNTARY
ASSOCIATIONS AND LABOR UNIONS ARE INDISTINGUISHABLE FROM CORPORATIONS
IN TERMS OF THE REALITY OF FUNCTION AND STRUCTURE, AND TO SAY THAT THE
LATTER ARE JURIDICAL PERSONS AND "CITIZENS" AND THE FORMER ARE NOT IS
TO BASE A DISTINCTION UPON AN INADEQUATE AND IRRELEVANT DIFFERENCE. 
THEY ASSERT, WITH CONSIDERABLE MERIT, THAT IT IS NOT GOOD JUDICIAL
ADMINISTRATION, NOR IS IT FAIR, TO REMIT A LABOR UNION OR OTHER
UNINCORPORATED ASSOCIATION TO VAGARIES OF JURISDICTION DETERMINED BY
THE CITIZENSHIP OF ITS MEMBERS AND TO DISREGARD THE FACT THAT UNIONS
AND ASSOCIATIONS MAY EXIST AND HAVE AN IDENTITY AND A LOCAL HABITATION
OF THEIR OWN. 

THE FORCE OF THESE ARGUMENTS IN RELATION TO THE DIVERSITY
JURISDICTION IS PARTICULARIZED BY PETITIONER'S SHOWING IN THIS CASE. 
PETITIONER ARGUES THAT ONE OF THE PURPOSES UNDERLYING THE JURISDICTION
PROTECTION OF THE NONRESIDENT LITIGANT FROM LOCAL PREJUDICE - IS
ESPECIALLY APPLICABLE TO THE MODERN LABOR UNION.  ACCORDING TO THE
ARGUMENT, WHEN THE NONRESIDENT DEFENDANT IS A MAJOR UNION, LOCAL JURIES
MAY BE TEMPTED TO FAVOR LOCAL INTERESTS AT ITS EXPENSE.  JURIES MAY
ALSO BE INFLUENCED BY THE FEAR THAT UNIONIZATION WOULD ADVERSELY AFFECT
THE ECONOMY OF THE COMMUNITY AND ITS CUSTOMS AND PRACTICES IN THE FIELD
OF RACE RELATIONS.  IN SUPPORT OF THESE CONTENTIONS, PETITIONER HAS
EXHIBITED MATERIAL SHOWING THAT DURING ORGANIZATIONAL CAMPAIGNS LIKE
THAT INVOLVED IN THIS CASE, LOCALITIES HAVE BEEN SATURATED WITH
PROPAGANDA CONCERNING SUCH ECONOMIC AND RACIAL FEARS.   EXTENDING
DIVERSITY JURISDICTION TO UNIONS, SAYS PETITIONER, WOULD MAKE AVAILABLE
THE ADVANTAGES OF FEDERAL PROCEDURE, ARTICLE III JUDGES LESS EXPOSED TO
LOCAL PRESSURES THAN THEIR STATE COURT COUNTERPARTS, JURIES SELECTED
FROM WIDER GEOGRAPHICAL AREAS, REVIEW IN APPELLATE COURTS REFLECTING A
MULTISTATE PERSPECTIVE, AND MORE EFFECTIVE REVIEW BY THIS COURT. 

WE ARE OF THE VIEW THAT THESE ARGUMENTS, HOWEVER APPEALING, ARE
ADDRESSED TO AN INAPPROPRIATE FORUM, AND THAT PLEAS FOR EXTENSION OF
THE DIVERSITY JURISDICTION TO HITHERTO UNCOVERED BROAD CATEGORIES OF
LITIGANTS OUGHT TO BE MADE TO THE CONGRESS AND NOT TO THE COURTS. 

PETITIONER URGES THAT IN PUERTO RICO V. RUSSELL & CO., 288 U.S. 476,
WE HAVE HERETOFORE BREACHED THE DOCTRINAL WALL OF CHAPMAN V. BARNEY
AND, THAT STEP HAVEING BEEN TAKEN, THERE IS NOW NO NECESSITY FOR
ENLISTING THE ASSISTANCE TO CONGRESS.  BUT RUSSELL DOES NOT FURNISH THE
PRECEDENT WHICH PETITIONER SEEKS.  THE PROBLEM WHICH IT PRESENTED WAS
THAT OF FITTING AN EXOTIC CREATION OF THE CIVIL LAW, THE SOCIEDAD EN
COMANDITA, INTO A FEDERAL SCHEME WHICH KNEW IT NOT.  THE ORGANIC ACT OF
PUERTO RICO CONFERRED JURISDICTION UPON THE FEDERAL COURT IF ALL THE
PARTIES ON EITHER SIDE OF A CONTROVERSY WERE CITIZENS OF A FOREIGN
STATE OR "CITIZENS OF A STATE, TERRITORY OR DISTRICT OF THE UNITED
STATES NOT DOMICILED IN PUERTO RICO."  (FN9)  ALL OF THE SOCIEDAD'S
MEMBERS WERE NONRESIDENTS OF PUERTO RICO, AND JURISDICTION LAY IN THE
FEDERAL COURT IF THEY WERE THE "PARTIES" TO THE ACTION.  BUT THIS COURT
HELD THAT THE SOCIEDAD ITSELF, NOT ITS MEMBERS, WAS THE PARTY, DOING SO
ON A BASIS THAT IS OF NO HELP TO PETITIONER.  IT DID SO BECAUSE, AS
JUSTICE STONE STATED FOR THE COURT, IN "THE TRADITION OF THE CIVIL LAW,
AS EXPRESSED IN THE CODE OF PUERTO RICO," "THE SOCIEDAD IS CONSISTENTLY
REGARDED AS A JURIDICAL PERSON."  288 U.S., AT 480-481.  ACCORDINGLY,
THE COURT HELD THAT THE SOCIEDAD, RUSSELL & CO., WAS A CITIZEN
DOMICILED IN PUERTO RICO, WITHIN THE MEANING OF THE ORGANIC ACT, AND
ORDERED THE CASE REMANDED TO THE INSULAR COURTS.  IT SHOULD BE NOTED
THAT THE EFFECT OF RUSSELL WAS TO CONTRACT JURISDICTION OF THE FEDERAL
COURT IN PUERTO RICO.  (FN10) 

IF WE WERE TO ACCEPT PETITIONER'S URGENT INVITATION TO AMEND
DIVERSITY JURISDICTION SO AS TO ACCOMMODATE ITS CASE, WE WOULD BE FACED
WITH DIFFICULTIES WHICH WE COULD NOT ADEQUATELY RESOLVE.  EVEN IF THE
RECORD HERE WERE ADEQUATE, WE MIGHT WELL HESITATE TO ASSUME THAT
PETITIONER'S SITUATION IS SUFFICIENTLY REPRESENTATIVE OR TYPICAL TO
FORM THE PREDICATE OF A GENERAL PRINCIPLE.  WE SHOULD, FOR EXAMPLE, BE
OBLIGED TO FASHION A TEST FOR ASCERTAINING OF WHICH STATE THE LABOR
UNION IS A CITIZEN.  EXTENDING THE JURISDICTION TO CORPORATIONS RAISED
NO SUCH PROBLEM, FOR THE STATE OF INCORPORATION WAS A NATURAL
CANDIDATE, ITS ARGUABLE IRRELEVANCE IN TERMS OF THE POLICIES UNDERLYING
THE JURISDICTION BEING OUTWEIGHED BY ITS CERTAINTY OF APPLICATION.  BUT
EVEN THAT EASY AND APPARENT SOLUTION DID NOT DISPOSE OF THE PROBLEM; IN
1958 CONGRESS THOUGHT IT NECESSARY TO ENACT LEGISLATION PROVIDING THAT
CORPORATIONS ARE CITIZENS BOTH OF THE STATE OF INCORPORATION AND OF THE
STATE IN WHICH THEIR PRINCIPAL PLACE OF BUSINESS IS LOCATED.  (FN11)
FURTHER, IN CONTEMPLATING A RULE WHICH WOULD ACCOMMODATE PETITIONER'S
CLAIM, WE ARE ACUTELY AWARE OF THE COMPLICATIONS ARISING FROM THE
CIRCUMSTANCE THAT PETITIONER, LIKE OTHER LABOR UNIONS, HAS LOCAL AS
WELL AS NATIONAL ORGANIZATIONS AND THAT THESE, PERHAPS, SHOULD BE
RECKONED WITH IN CONNECTION WITH "CITIZENSHIP" AND ITS JURISDICTIONAL
INCIDENTS.  (FN12) 

WHETHER UNINCORPORATED LABOR UNIONS OUGHT TO BE ASSIMILATED TO THE
STATUS OF CORPORATIONS FOR DIVERSITY PURPOSES, HOW SUCH CITIZENSHIP IS
TO BE DETERMINED, AND WHAT IF ANY RELATED RULES OUGHT TO APPLY, ARE
DECISIONS WHICH WE BELIEVE SUITED TO THE LEGISLATIVE AND NOT THE
JUDICIAL BRANCH, REGARDLESS OF OUR VIEWS AS TO THE INTRINSIC MERITS OF
PETITIONER'S ARGUMENT - MERITS STOUTLY ATTESTED BY WIDESPREAD SUPPORT
FOR THE RECOGNITION OF LABOR UNIONS AS JURIDICIAL PERSONALITIES. 
(FN13) 

WE AFFIRM THE DECISION BELOW. 

FN1  28 U.S.C. SEC. 1441(A) (1964 ED.)  PROVIDES:  "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." 

FN2  PETITIONER DOES NOT HERE CHALLENGE THE COURT OF APPEALS' FINDING
WITH RESPECT TO THE ABSENCE OF FEDERAL-QUESTION JURISDICTION.  MENTION
OF THIS FINDING IS OMITTED FROM THE "STATEMENT OF THE CASE" PORTION OF
PETITIONER'S BRIEF.  INSTEAD, PETITIONER EXPRESSES AN INTENTION, ON
REMAND OF THIS CASE, TO RAISE A DIFFERENT ISSUE - THAT LIBEL SUITS
BROUGHT AGAINST UNIONS FOR CONDUCT ARISING IN THE COURSE OF AN
ORGANIZATIONAL CAMPAIGN ARE WITHIN THE EXCLUSIVE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD AND MAY NOT BE THE SUBJECT OF
LITIGATION, AT LEAST INITIALLY, IN STATE OR FEDERAL COURT.  COMPARE
LINN V. UNITED PLANT GUARD WORKERS OF AMERICA, LOCAL 114, 337 F.2D 68
(C.A. 6TH CIR.), CERT. GRANTED, 381 U.S. 923, WITH MEYER V. JOINT
COUNCIL 53, INTERN'L BRO. OF TEAMSTERS, 416 PA. 401, 206 A.2D 382,
PETITION FOR CERT. DISMISSED UNDER RULE 60, POST, P. 897. 

FN3  1 STAT. 78 

FN4 SEE 72 STAT. 415 (1958), 28 U.S.C. SEC. 1332(C), PROVIDING THAT:
"FOR THE PURPOSES OF THIS SECTION AND SECTION 1441 OF THIS TITLE, A
CORPORATION SHALL BE DEEMED A CITIZEN OF ANY STATE BY WHICH IT HAS BEEN
INCORPORATED AND OF THE STATE WHERE IT HAS ITS PRINCIPAL PLACE OF
BUSINESS." 

FN5  18 STAT. 470. 

FN6 24 STAT. 552, 553, AS AMENDED BY 25 STAT. 434.  ON THE HISTORICAL
BACKGROUND OF THESE CHANGES IN THE DIVERSITY JURISDICTION SEE
GENERALLY, MOORE AND WECKSTEIN, DIVERSITY JURISDICTION:  PAST, PRESENT,
AND FUTURE, 43 TEX. L. REV. 1 (1964); MOORE AND WECKSTEIN, CORPORATIONS
AND DIVERSITY OF CITIZENSHIP JURISDICTION:  A SUPREME COURT FICTION
REVISITED, 77 HARV. L. REV. 1426 (1964); HART AND WECHSLER, THE FEDERAL
COURTS AND THE FEDERAL SYSTEM 891-943 (1953). 

FN7  EQUALLY RESPONSIVE TO THE CONGRESSIONAL INTENT AS MANIFESTED IN
1887 AND 1888 WAS THE COURT'S DECISION IN 1892 IN SHAW V. QUINCY MINING
CO., 145 U.S. 444, HOLDING THAT IN A DIVERSITY SUIT A CORPORATION COULD
ONLY BE SUED IN THE STATE OF INCORPORATION, EVEN THOUGH ITS PRINCIPAL
PLACE OF BUSINESS WAS ELSEWHERE. 

FN8  SEE MASON V. AMERICAN EXPRESS CO., 334 F.2D 392 (C.A.2D CIR.);
78 HARV. L. REV. 1661 (1965); 53 GEO. L.J. 513 (1965); 65 COL. L. REV.
162 (1965); AMERICAN FED. OF MUSICIANS V. STEIN, 213 F.2D 679, 685-689
(C.A. 6TH CIR.), CERT. DENIED, 348 U.S. 873, SUGGESTING THAT A TRIAL
COURT MIGHT FIND A UNION TO BE A CITIZEN FOR DIVERSITY PURPOSES - A
SUGGESTION REJECTED ON REMAND, 183 F. SUPP. 99 (D.C.M.D. TENN.); AND
VAN SANT V. AMERICAN EXPRESS CO., 169 F.2D 355 (C.A. 3D CIR.); COMMENT,
1965 DUKE L.J. 329; NOTE, UNIONS AS JURIDICAL PERSONS, 66 YALE L.J.
712, 742-749 (1957).  CF. SWAN V. FIRST CHURCH OF CHRIST, SCIENTIST, IN
BOSTON, 225 F.2D 745 (C.A. 9TH CIR.).  BUT SEE BROCKI V. AMERICAN
EXPRESS CO., 279 F.2D 785 (C.A. 6TH CIR.), CERT. DENIED, 364 U.S. 871;
UNDERWOOD V. MALONEY, 256 F.2D 334 (C.A.  3D CIR.), CERT. DENIED, 358
U.S. 864; A.H. BULL STEAMSHIP CO. V. NMEBA, 250 F.2D 332 (C.A.2D CIR.),
EACH OF WHICH TAKES A MORE CONVENTIONAL VIEW. 

FN9  THE FEDERAL DISTRICT COURT IN PUERTO RICO HAD JURISDICTION "OF
ALL CASES COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES" AND
"OF ALL CONTROVERSIES WHERE ALL OF THE PARTIES ON EITHER SIDE OF THE
CONTROVERSY ARE CITIZENS OR SUBJECTS OF A FOREIGN STATE OR STATES, OR
CITIZENS OF A STATE, TERRITORY, OR DISTRICT OF THE UNITED STATES NOT
DOMICILED IN PUERTO RICO  ... ."  SEC. 41, ORGANIC ACT OF PUERTO RICO
OF 1917, 39 STAT. 965 (NOW 48 U.S.C. SEC. 863).  SEE 70 STAT. 658
(1956), AMENDING 28 U.S.C. SEC. 1332, RELATING TO THE TREATMENT OF THE
COMMONWEALTH OF PUERTO RICO FOR DIVERSITY PURPOSES. 

FN10  AS THE COURT NOTED IN RUSSELL, 288 U.S., AT 482, THE EFFECT OF
ITS DECISION WAS TO PREVENT NONRESIDENTS FROM ORGANIZING SOCIEDADS TO
CARRY ON BUSINESS IN PUERTO RICO AND THEN "REMOVE FROM THE INSULAR
COURTS CONTROVERSIES ARISING UNDER LOCAL LAW."  THE COURT OF APPEALS
FOR THE SECOND CIRCUIT IN MASON, 334 F.2D, AT 397, N. 8, SEEMS TO
ASSERT THAT RUSSELL HAD THE EFFECT OF BROADENING THE DIVERSITY
JURISDICTION.  WE DO NOT AGREE.  AT THE TIME RUSSELL WAS DECIDED,
PUERTO RICO WAS NOT CONSIDERED A "STATE" FOR PURPOSES OF THE FEDERAL
DIVERSITY JURISDICTION STATUTE.  ACCORDINGLY, A SOCIEDAD, ALTHOUGH
RECOGNIZED AS A CITIZEN OF PUERTO RICO IN RUSSELL, COULD NOT AVAIL
ITSELF OF THE GENERAL DIVERSITY STATUTE. 

FN11  SEE NOTE 4, SUPRA. 

FN12  THE AMERICAN LAW INSTITUTE HAS PROPOSED THAT FOR DIVERSITY
PURPOSES UNINCORPORATED ASSOCIATIONS BE DEEMED CITIZENS OF THE STATES
IN WHICH THEIR PRINCIPAL PLACES OF BUSINESS ARE LOCATED, BUT THAT THEY
BE DISABLED FROM INITIATING DIVERSITY LITIGATION IN STATES WHERE THEY
MAINTAIN "LOCAL ESTABLISHMENTS."  ALI, STUDY OF THE DIVISION OF
JURISDICTION BETWEEN STATE AND FEDERAL COURTS, PROPOSED FINAL DRAFT NO.
1 (1965), SECS. 1301(B)(2) AND 1302(B).  COMPARE 29 U.S.C. SEC. 185(C),
WHICH PROVIDES:  "FOR THE PURPOSES OF ACTIONS AND PROCEEDINGS BY OR
AGAINST LABOR ORGANIZATIONS IN THE DISTRICT COURTS OF THE UNITED
STATES, DISTRICT COURTS SHALL BE DEEMED TO HAVE JURISDICTION OF A LABOR
ORGANIZATION (1) IN THE DISTRICT IN WHICH SUCH ORGANIZATION MAINTAINS
ITS PRINCIPAL OFFICE, OR (2) IN ANY DISTRICT IN WHICH ITS DULY
AUTHORIZED OFFICERS OR AGENTS ARE ENGAGED IN REPRESENTING OR ACTING FOR
EMPLOYEE MEMBERS." 

FN13  SEE, E.G., UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S.
344; RULE 17(B) OF THE FED. RULES CIV. PROC.; ALI, STUDY, SUPRA; 3
MOORE, FEDERAL PRACTICE PARA. 17.25 (2D ED., 1964); NOTE, UNIONS AS
JURIDICAL PERSONS, 66 YALE L. J. 712 (1957).  CF. 78 STAT. 445 (1964),
WHICH AMENDED 28 U.S.C. SEC. 1332(C) TO CONFER CITIZENSHIP UPON
INSURERS, "WHETHER INCORPORATED OR UNINCORPORATED," INVOLVED IN DIRECT
ACTION SUITS; NOTE, DEVELOPMENTS IN THE LAW - JUDICIAL CONTROL OF
ACTIONS OF PRIVATE ASSOCIATIONS, 76 HARV. L. REV. 983, 1080-1100
(1963). 
..END :















SEABOARD AIR LINE R. CO. V. U.S. 382 U.S. 154 


NO. 425.  DECIDED NOVEMBER 22, 1965.* - 242 F. SUPP. 14, VACATED AND
REMANDED. 

*TOGETHER WITH NO. 555, INTERSTATE COMMERCE COMMISSION V. FLORIDA
EAST COAST RAILWAY CO. ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


THE INTERSTATE COMMERCE COMMISSION (ICC), AFTER ADMINISTRATIVE
PROCEEDINGS, APPROVED A MERGER BETWEEN THE ATLANTIC COAST LINE RAILROAD
COMPANY AND THE SEABOARD AIR LINE RAILROAD COMPANY.  THOUGH RECOGNIZING
THAT THE MERGER WOULD ELIMINATE COMPETITION IN PARTS OF FLORIDA, THE
ICC FOUND THAT THE BENEFITS OF THE MERGER OUTWEIGHED ITS POTENTIAL
DISADVANTAGES.  ON THE GROUND THAT THE ICC FAILED TO DETERMINE WHETHER
THE MERGER VIOLATED SEC. 7 OF THE CLAYTON ACT BY REFERENCE TO THE
RELEVANT PRODUCT AND GEOGRAPHIC MARKETS, A THREE-JUDGE DISTRICT COURT
SET ASIDE THE ICC'S ORDER.  HELD:  THE ICC IS AUTHORIZED TO APPROVE A
MERGER NOTWITHSTANDING WHAT WOULD OTHERWISE BE VIOLATIVE OF THE
ANTITRUST LAWS IF IT MAKES ADEQUATE FINDINGS AFTER WEIGHING THE EFFECTS
OF THE CURTAILMENT OF COMPETITION AGAINST THE ADVANTAGES OF IMPROVED
SERVICE THAT THE MERGER WOULD BE "CONSISTENT WITH THE PUBLIC INTEREST"
UNDER SEC. 5(20)(B) OF THE INTERSTATE COMMERCE ACT AND FURTHER THE
OVERALL TRANSPORTATION POLICY.  MCLEAN TRUCKING CO. V. UNITED STATES,
321 U.S. 67; MINNEAPOLIS & ST. LOUIS R. CO. V. UNITED STATES, 361 U.S.
173, FOLLOWED. 

SEABOARD AIR LINE RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES COURT FOR THE MIDDLE DISTRICT OF
FLORIDA. 

PER CURIAM. 

ATLANTIC COAST LINE RAILROAD COMPANY AND SEABOARD AIR LINE RAILROAD
COMPANY FILED WITH THE INTERSTATE COMMERCE COMMISSION AN APPLICATION
FOR AUTHORITY TO MERGE.  IN THE ADMINISTRATIVE PROCEEDINGS, THE
APPLICANTS CONTENDED THAT THE MERGER WOULD ENABLE THEM TO LOWER
OPERATING COSTS, IMPROVE SERVICE, AND ELIMINATE DUPLICATE FACILITIES;
OTHER CARRIERS OPPOSED THE MERGER ON THE GROUND THAT IT WOULD HAVE
ADVERSE COMPETITIVE EFFECTS; AND THE DEPARTMENT OF JUSTICE CONTENDED
THAT THE MERGER WOULD CREATE A RAIL MONOPOLY IN CENTRAL AND WESTERN
FLORIDA. 

THE COMMISSION APPROVED THE MERGER, SUBJECT TO ROUTING AND GATEWAY
CONDITIONS TO PROTECT COMPETING RAILROADS.  IT RECOGNIZED THAT THE
MERGER WOULD ELIMINATE COMPETITION AND CREATE A RAIL MONOPOLY IN PARTS
OF FLORIDA.  BUT IT FOUND THAT THE MERGED LINES CARRIED ONLY A SMALL
PART OF THE TOTAL TRAFFIC IN THE AREA INVOLVED; THAT AMPLE RAIL
COMPETITION WOULD REMAIN THEREIN; AND THAT THE REDUCTION IN COMPETITION
WOULD "HAVE NO APPRECIABLY INJURIOUS EFFECT UPON SHIPPERS AND
COMMUNITIES."  SEABOARD AIR LINE RAILROAD CO., 320 I.C.C. 122, 167.  IN
ADDITION, THE COMMISSION NOTED THAT THE NEED TO PRESERVE INTRAMODAL
RAIL COMPETITION HAD DIMINISHED, DUE TO THE FACT THAT RAILROADS WERE
INCREASINGLY LOSING TRAFFIC TO TRUCK, WATER, AND OTHER MODES OF
COMPETITION. 

A THREE-JUDGE DISTRICT COURT SET ASIDE THE ORDER AND REMANDED THE
CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS.  IT CONCLUDED THAT THE
COMMISSION'S ANALYSIS OF THE COMPETITIVE EFFECTS OF THE MERGER WAS
FATALLY DEFECTIVE BECAUSE THE COMMISSION HAD NOT DETERMINED WHETHER THE
MERGER VIOLATED SEC. 7 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. SEC.
18 (1964 ED.), BY REFERENCE TO THE RELEVANT PRODUCT AND GEOGRAPHIC
MARKETS.  BY THUS DISPOSING OF THE CASE, THE DISTRICT COURT DID NOT
REACH THE ULTIMATE QUESTION WHETHER THE MERGER WOULD BE CONSISTENT WITH
THE PUBLIC INTEREST DESPITE THE FORESEEABLE INJURY TO COMPETITION. 
(FN1) 

WE BELIEVE THAT THE DISTRICT COURT ERRED IN ITS INTERPRETATION OF THE
DIRECTIONS THIS COURT SET FORTH IN MCLEAN TRUCKING CO. V. UNITED
STATES, 321 U.S. 67 (1944), AND MINNEAPOLIS & ST. LOUIS R. CO. V.
UNITED STATES, 361 U.S. 173 (1959).  AS WE SAID IN MINNEAPOLIS, AT
186: 

"ALTHOUGH SEC. 5(11) DOES NOT AUTHORIZE THE COMMISSION TO 'IGNORE'
THE ANTITRUST LAWS, MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67,
80, THERE CAN BE 'LITTLE DOUBT THAT THE COMMISSION IS NOT TO MEASURE
PROPOSALS FOR ACQUISITIONS BY THE STANDARDS OF THE ANTITRUST LAWS.' 
321 U.S., AT 85-86.  THE PROBLEM IS ONE OF ACCOMMODATION OF SEC. 5(2)
AND THE ANTITRUST LEGISLATION.  THE COMMISSION REMAINS OBLIGATED TO
'ESTIMATE THE SCOPE AND APPRAISE THE EFFECTS OF THE CURTAILMENT OF
COMPETITION WHICH WILL RESULT FROM THE PROPOSED ACQUISITION AND
CONSIDER THEM ALONG WITH THE ADVANTAGES OF IMPROVED SERVICE AND OTHER
MATTERS IN THE PUBLIC INTEREST TO DETERMINE WHETHER THE ACQUISITION
WILL ASSIST IN EFFECTUATING THE OVERALL TRANSPORTATION POLICY.'  321
U.S., AT 87." 

THE SAME CRITERIA SHOULD BE APPLIED HERE TO THE PROPOSED MERGER.  IT
MATTERS NOT THAT THE MERGER MIGHT OTHERWISE VIOLATE THE ANTITRUST LAWS;
THE COMMISSION HAS BEEN AUTHORIZED BY THE CONGRESS TO APPROVE THE
MERGER OF RAILROADS IF IT MAKES ADEQUATE FINDINGS IN ACCORDANCE WITH
THE CRITERIA QUOTED ABOVE THAT SUCH A MERGER WOULD BE "CONSISTENT WITH
THE PUBLIC INTEREST."  54 STAT. 906, 49 U.S.C. SEC. 5(2)(B) (1964
ED.). 

WHETHER THE COMMISSION HAS CONFINED ITSELF WITHIN THE STATUTORY
LIMITS UPON ITS DISCRETION AND HAS BASED ITS FINDINGS ON SUBSTANTIAL
EVIDENCE ARE QUESTIONS FOR THE TRIAL COURT IN THE FIRST INSTANCE,
UNITED STATES V. GREAT NORTHERN R. CO., 343 U.S. 562, 578 (1952), AND
WE INDICATE NO OPINION ON THE SAME.  WE THEREFORE VACATE THE JUDGMENT
OF THE DISTRICT COURT AND REMAND THE CASE TO IT FOR A FULL REVIEW OF
THE ADMINISTRATIVE ORDER AND FINDINGS PURSUANT TO THE STANDARDS
ENUNCIATED BY THIS COURT.  VACATED AND REMANDED. 

FN1  IT EXPRESSLY DECLINED TO CONSIDER TWO FURTHER ISSUES, I.E.,
WHETHER THE COMMISSION'S LABOR-PROTECTION CONDITIONS WERE ADEQUATE AND
WHETHER CONTROL OF THE MERGED COMPANY BY THE MERCANTILE-SAFE DEPOSIT
AND TRUST COMPANY WOULD BE CONSISTENT WITH THE PUBLIC INTEREST. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :







UNITED STATES V. MARYLAND 382 U.S. 158 


NO. 543, OCTOBER TERM, 1963.  CERTIORARI DENIED DECEMBER 16, 1963.  -
REHEARING DENIED DECEMBER 7, 1964 - REHEARING AND CERTIORARI GRANTED
AND CASE DECIDED NOVEMBER 22, 1965 - 116 U.S. APP. D.C. 259, 322 F.2D
1009, REVERSED AND REMANDED FOR FURTHER PROCEEDINGS ON UNRESOLVED
ISSUES IN COMPLAINT. 


UNITED STATES V. MARYLAND FOR THE USE OF MEYER ET AL. 

ON PETITION FOR REHEARING. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE A CONDITIONAL PETITION FOR REHEARING IS
GRANTED AND THE PETITION FOR REHEARING IS ALSO GRANTED.  THE ORDER OF
DECEMBER 16, 1963, 375 U.S. 954, DENYING THE PETITION FOR WRIT OF
CERTIORARI IS VACATED, AND THE PETITION FOR WRIT OF CERTIORARI IS
GRANTED.  THE JUDGMENT OF THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT IS REVERSED IN CONFORMITY WITH OUR DECISION IN
MARYLAND FOR THE USE OF LEVIN ET AL. V. UNITED STATES, 381 U.S. 41, AND
THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA FOR FURTHER PROCEEDINGS WITH RESPECT TO THE
UNRESOLVED ISSUES TENDERED IN RESPONDENTS' BILL OF COMPLAINT.  IT IS SO
ORDERED. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN, BELIEVING THAT A REMAND IS
LEGALLY UNJUSTIFIED, DISSENT FROM THAT PART OF THE COURT'S ORDER. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















MARYLAND V. UNITED STATES 382 U.S. 159 


NO. 345, OCTOBER TERM, 1964.  REHEARING AND MOTION TO REMAND GRANTED
NOVEMBER 22, 1965; 381 U.S. 41, VACATED AND AMENDED; 329 F.2D 722,
MODIFIED AND REMANDED FOR FURTHER PROCEEDINGS ON UNRESOLVED ISSUES IN
COMPLAINT. 


MARYLAND FOR THE USE OF LEVIN ET AL. V. UNITED STATES. 

ON PETITION FOR REHEARING. 

PER CURIAM. 

THE PETITION FOR REHEARING AND THE MOTION TO REMAND FOR TRIAL ON
UNRESOLVED ISSUES ARE GRANTED AS HEREIN INDICATED.  THE JUDGMENT OF
THIS COURT OF MAY 3, 1965, 381 U.S. 41, IS VACATED, AND IN LIEU THEREOF
THE FOLLOWING JUDGMENT IS ENTERED:  "THE JUDGMENT OF THE COURT OF
APPEALS FOR THE THIRD CIRCUIT IS MODIFIED TO DIRECT THAT THE CASE BE
REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF PENNSYLVANIA FOR FURTHER PROCEEDINGS WITH RESPECT TO THE UNRESOLVED
ISSUES TENDERED IN PETITIONERS' BILL OF COMPLAINT, AND IS IN ALL OTHER
RESPECTS AFFIRMED."  IT IS SO ORDERED. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN, BELIEVING THAT A REMAND IS
LEGALLY UNJUSTIFIED, DISSENT FROM THAT PART OF THE COURT'S ORDER. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
























REYNOLDS METALS V. WASHINGTON 382 U.S. 160 


NO. 537.  DECIDED NOVEMBER 22, 1965.  - 65 WASH. 2D 882, 400 P.2D 310,
APPEAL DISMISSED. 


REYNOLDS METALS CO. V. WASHINGTON ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE STEWART AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











HODGES V. BUCKEYE 382 U.S. 160 


NO. 548.  DECIDED NOVEMBER 22, 1965 - 174 SO. 2D 565, APPEAL DISMISSED. 


HODGES ET AL. V. BUCKEYE CELLULOSE CORP. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 
..END :


















FLORIDA E.C.R. CO. V. U.S. 382 U.S. 161 


NO. 541.  DECIDED NOVEMBER 22, 1965.  - 242 F. SUPP. 490, AFFIRMED. 


FLORIDA EAST COAST RAILWAY CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF FLORIDA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















KASHARIAN V. WILENTZ 382 U.S. 161 


NO. 672, MISC.  DECIDED NOVEMBER 22, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


KASHARIAN V. WILENTZ. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ALBERTSON V. SUBVERSIVE ACTIVITIES CONTROL BOARD 382 U.S. 70 


NO. 3.  ARGUED OCTOBER 18, 1965.  - DECIDED NOVEMBER 15, 1965.  - 118
U.S. APP. D.C. 117, 332 F.2D 317, REVERSED. 


DESPITE THE ORDER OF THE SUBVERSIVE ACTIVITIES CONTROL BOARD (SACB),
SUSTAINED IN COMMUNIST PARTY OF THE UNITED STATES V. SACB, 367 U.S.1,
THE PARTY FAILED TO REGISTER UNDER THE SUBVERSIVE ACTIVITIES CONTROL
ACT OF 1950, AND NO LIST OF MEMBERS WAS FILED.  THE ATTORNEY GENERAL,
IN ACCORDANCE WITH SEC. 13(A) AND SECS. 8(A) AND (C) OF THE ACT, ASKED
THE SACB TO ORDER PETITIONERS, AS PARTY MEMBERS, TO REGISTER AND SUBMIT
A REGISTRATION STATEMENT.  THE SACB DID ORDER PETITIONERS TO REGISTER
AND SUBMIT THE REGISTRATION STATEMENT AND THE COURT OF APPEALS AFFIRMED
THESE ORDERS, FINDING THE FIFTH AMENDMENT SELF-INCRIMINATION ISSUE NOT
RIPE FOR ADJUDICATION.  HELD: 

1.  PETITIONERS' CLAIMS OF THE PRIVILEGE AGAINST SELF-INCRIMINATION
ARE RIPE FOR ADJUDICATION.  PP. 73-77. 

(A)  AS DISTINGUISHED FROM THE COMMUNIST PARTY CASE, THE
CONTINGENCIES UPON WHICH THE MEMBERS' DUTY TO REGISTER ARISES HAVE
MATURED, THE PETITIONERS HAVE CLAIMED THE PRIVILEGE AND THE ATTORNEY
GENERAL HAS REJECTED SUCH CLAIMS.  PP. 74-75. 

(B)  PETITIONERS ARE FACED WITH THE CHOICE OF REGISTERING WITHOUT A
DECISION ON THE MERITS OF THEIR CLAIMS OR SUBJECTING THEMSELVES TO
SERIOUS PUNISHMENT.  PP. 75-76. 

(C)  RESPONDENT'S ATTEMPT TO DISTINGUISH BETWEEN CLAIMS OF PRIVILEGE
RELATING TO THE SACB'S POWER TO COMPEL REGISTRATION AND SUBMISSION OF A
REGISTRATION STATEMENT, CONCERNING WHICH IT CONCEDES THAT THE COURT OF
APPEALS' HOLDING OF PREMATURITY WAS ERRONEOUS, AND CLAIMS OF PRIVILEGE
AGAINST "ANY PARTICULAR INQUIRY" ON THE REGISTRATION FORM OR
REGISTRATION STATEMENT, IS WITHOUT MERIT.  THE STATUTE AND REGULATIONS
ISSUED THEREUNDER REQUIRE PETITIONERS TO REGISTER AND SUBMIT THE FORMS
FULLY EXECUTED IN ACCORDANCE WITH PRESENT REGULATIONS.  PP. 76-77. 

2.  THE REQUIREMENT OF FILING THE REGISTRATION FORM (IS-52A) IS
INCRIMINATORY WITHIN THE MEANING OF THE SELF-INCRIMINATION CLAUSE
BECAUSE THE ADMISSION OF PARTY MEMBERSHIP, REQUIRED BY THE FORM, MIGHT
BE USED AS AN INVESTIGATORY LEAD TO OR EVIDENCE IN A CRIMINAL
PROSECUTION.  PP. 77-78. 

3.  THE REQUIREMENT OF COMPLETING AND FILING THE REGISTRATION
STATEMENT (IS-52), CONSIDERED APART FROM THE REGISTRATION FORM, WOULD
ALSO BE INCRIMINATORY BECAUSE THE INFORMATION MIGHT BE USED AS EVIDENCE
IN OR SUPPLY LEADS TO A CRIMINAL PROSECUTION.  UNITED STATES V.
SULLIVAN, 274 U.S. 259, DISTINGUISHED.  PP. 78-79. 

4.  THE ACT'S IMMUNITY PROVISION, SEC. 4(F), DOES NOT SAVE THE ORDERS
TO REGISTER FROM PETITIONERS' FIFTH AMENDMENT CHALLENGE.  PP. 79-81. 

(A)  THE IMMUNITY PROVISION DOES NOT PRECLUDE THE USE OF INFORMATION
CALLED FOR BY THE REGISTRATION STATEMENT (IS-52), EITHER AS EVIDENCE OR
AN INVESTIGATORY LEAD.  P. 80. 

(B)  THE IMMUNITY PROVISION DOES NOT PRECLUDE THE USE OF AN ADMISSION
OF PARTY MEMBERSHIP ON THE REGISTRATION FORM (IS-52A) AS AN
INVESTIGATORY LEAD, A USE BARRED BY THE SELF-INCRIMINATION PRIVILEGE. 
P. 80. 

(C)  RESPONDENT'S ARGUMENT THAT SINCE AN ORDER TO REGISTER FOLLOWS AN
SACB FINDING OF PARTY MEMBERSHIP, THE ADMISSION OF PARTY MEMBERSHIP BY
REGISTERING IS OF NO INVESTIGATORY VALUE AND THUS NOT "INCRIMINATORY,"
WOULD MAKE THE RIGHT TO INVOKE THE PRIVILEGE DEPEND UPON AN ASSESSMENT
OF INFORMATION IN THE GOVERNMENT'S POSSESSION.  THIS WOULD NEGATE THE
COMPLETE PROTECTION FROM ALL PERILS THAT AN IMMUNITY STATUTE MUST
PROVIDE ACCORDING TO COUNSELMAN V. HITCHCOCK, 142 U.S. 547.  P. 81. 

ALBERTSON ET AL. V. SUBVERSIVE ACTIVITIES CONTROL BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE COMMUNIST PARTY OF THE UNITED STATES OF AMERICA FAILED TO
REGISTER WITH THE ATTORNEY GENERAL AS REQUIRED BY THE ORDER OF THE
SUBVERSIVE ACTIVITIES CONTROL BOARD SUSTAINED IN COMMUNIST PARTY OF THE
UNITED STATES V. SACB, 367 U.S. 1.  (FN1)  ACCORDINGLY, NO LIST OF
PARTY MEMBERS WAS FILED AS REQUIRED BY SEC. 7(D)(4) OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT OF 1950, 64 STAT. 993-994, 50 U.S.C. SEC.
786(D)(4) (1964 ED.).  (FN2)  SECTIONS 8(A) AND (C) OF THE ACT PROVIDE
THAT, IN THAT CIRCUMSTANCE, EACH MEMBER OF THE ORGANIZATION MUST
REGISTER AND FILE A REGISTRATION STATEMENT; IN DEFAULT THEREOF, SEC.
13(A) AUTHORIZES THE ATTORNEY GENERAL TO PETITION THE BOARD FOR AN
ORDER REQUIRING THE MEMBER TO REGISTER.  (FN3)  THE ATTORNEY GENERAL
INVOKED SEC. 13(A) AGAINST PETITIONERS, AND THE BOARD, AFTER
EVIDENTIARY HEARINGS, DETERMINED THAT PETITIONERS WERE PARTY MEMBERS
AND ORDERED EACH OF THEM TO REGISTER PURSUANT TO SECS. 8(A) AND (C). 
REVIEW OF THE ORDERS WAS SOUGHT BY PETITIONERS IN THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT UNDER SEC. 14(A).  (FN4)  THE
COURT OF APPEALS AFFIRMED THE ORDERS, 118 U.S. APP. D.C. 117, 332 F.2D
317.  WE GRANTED CERTIORARI, 381 U.S. 910.  WE REVERSE.  (FN5)

                          I. 

PETITIONERS ADDRESS SEVERAL CONSTITUTIONAL CHALLENGES TO THE VALIDITY
OF THE ORDERS, BUT WE CONSIDER ONLY THE CONTENTION THAT THE ORDERS
VIOLATE THEIR FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION. 
(FN6) 

THE COURT OF APPEALS AFFIRMED THE ORDERS WITHOUT DECIDING THE
PRIVILEGE ISSUE, EXPRESSING THE VIEW THAT UNDER OUR DECISION IN
COMMUNIST PARTY, 367 U.S., AT 105-110, THE ISSUE WAS NOT RIPE FOR
ADJUDICATION AND WOULD BE RIPE ONLY IN A PROSECUTION FOR FAILURE TO
REGISTER IF THE PETITIONERS DID NOT REGISTER.  118 U.S. APP. D.C., AT
121-123, 332 F.2D, AT 321-323.  WE DISAGREE.  IN COMMUNIST PARTY THE
PARTY ASSERTED THE PRIVILEGE ON BEHALF OF UNNAMED OFFICERS - THOSE
OBLIGED TO REGISTER THE PARTY AND THOSE OBLIGED "TO REGISTER FOR" THE
PARTY IF IT FAILED TO DO SO.  (FN7)  THE SELF-INCRIMINATION CLAIM
ASSERTED ON BEHALF OF THE LATTER OFFICERS WAS HELD PREMATURE BECAUSE
THE PARTY MIGHT CHOOSE TO REGISTER AND THUS THE DUTY OF THOSE OFFICERS
MIGHT NEVER ARISE.  HERE, IN CONTRAST, THE CONTINGENCIES UPON WHICH THE
MEMBERS' DUTY TO REGISTER ARISES HAVE ALREADY MATURED; THE PARTY DID
NOT REGISTER WITHIN 30 DAYS AFTER THE ORDER TO REGISTER BECAME FINAL
AND THE REQUISITE 60 DAYS SINCE THE ORDER BECAME FINAL HAVE ELAPSED. 
AS TO THE OFFICERS OBLIGED TO REGISTER THE PARTY, COMMUNIST PARTY HELD
THAT THE SELF-INCRIMINATION CLAIM ASSERTED ON THEIR BEHALF WAS NOT RIPE
FOR ADJUDICATION BECAUSE IT WAS NOT KNOWN WHETHER THEY WOULD EVER CLAIM
THE PRIVILEGE OR WHETHER THE CLAIM, IF ASSERTED, WOULD BE HONORED BY
THE ATTORNEY GENERAL.  BUT WITH RESPECT TO THE ORDERS IN THIS CASE,
ADDRESSED TO NAMED INDIVIDUALS, BOTH THESE CONTINGENCIES ARE
FORECLOSED.  PETITIONERS ASSERTED THE PRIVILEGE IN THEIR ANSWERS TO THE
ATTORNEY GENERAL'S PETITIONS; THEY DID NOT TESTIFY AT THE BOARD
HEARINGS; THEY AGAIN ASSERTED THE PRIVILEGE IN THE REVIEW PROCEEDINGS
IN THE COURT OF APPEALS.  IN EACH INSTANCE THE ATTORNEY GENERAL
REJECTED THEIR CLAIMS.  THUS, THE CONSIDERATIONS WHICH LED THE COURT IN
COMMUNIST PARTY TO HOLD THAT THE CLAIMS ON BEHALF OF UNNAMED OFFICERS
WERE PREMATURE ARE NOT PRESENT IN THIS CASE. 

THERE ARE OTHER REASONS FOR HOLDING THAT PETITIONERS' SELF
INCRIMINATION CLAIMS ARE RIPE FOR DECISION.  SPECIFIC ORDERS REQUIRING
PETITIONERS TO REGISTER HAVE BEEN ISSUED.  THE ATTORNEY GENERAL HAS
PROMULGATED REGULATIONS REQUIRING THAT REGISTRATION SHALL BE
ACCOMPLISHED ON FORM IS-52A AND THAT THE ACCOMPANYING REGISTRATION
STATEMENT SHALL BE A COMPLETED FORM IS-52, (FN8) 28 CFR SECS. 11.206,
11.207, AND PETITIONERS RISK VERY HEAVY PENALTIES IF THEY FAIL TO
REGISTER BY COMPLETING AND FILING THESE FORMS.  UNDER SEC. 15(A)(2) OF
THE ACT, 64 STAT.  1002, 50 U.S.C. SEC. 794(A)(2), FOR EXAMPLE, EACH
DAY OF FAILURE TO REGISTER CONSTITUTES A SEPARATE OFFENSE PUNISHABLE BY
A FINE OF UP TO $10,000 OR IMPRISONMENT OF UP TO FIVE YEARS, OR BOTH. 
(FN9)  PETITIONERS MUST EITHER REGISTER WITHOUT A DECISION ON THE
MERITS OF THEIR PRIVILEGE CLAIMS, OR FAIL TO REGISTER AND RISK ONEROUS
AND RAPIDLY MOUNTING PENALTIES WHILE AWAITING THE GOVERNMENT'S PLEASURE
WHETHER TO INITIATE A PROSECUTION AGAINST THEM.  TO ASK, IN THESE
CIRCUMSTANCES, THAT PETITIONERS AWAIT SUCH A PROSECUTION FOR AN
ADJUDICATION OF THEIR SELF-INCRIMINATION CLAIMS IS, IN EFFECT, TO
CONTEND THAT THEY SHOULD BE DENIED THE PROTECTION OF THE FIFTH
AMENDMENT PRIVILEGE INTENDED TO RELIEVE CLAIMANTS OF THE NECESSITY OF
MAKING A CHOICE BETWEEN INCRIMINATING THEMSELVES AND RISKING SERIOUS
PUNISHMENTS FOR REFUSING TO DO SO. 

INDEED THE GOVERNMENT CONCEDES IN ITS BRIEF IN THIS COURT THAT THE
COURT OF APPEALS' HOLDING OF PREMATURITY WAS ERRONEOUS INSOFAR AS
PETITIONERS' CLAIMS OF PRIVILEGE RELATE TO THE BOARD'S POWER TO COMPEL
THE ACT OF REGISTRATION AND THE SUBMISSION OF AN ACCOMPANYING
REGISTRATION STATEMENT.  THE BRIEF CANDIDLY ACKNOWLEDGES THAT, SINCE
SEC. 14(B) PROVIDES FOR JUDICIAL REVIEW OF A BOARD ORDER TO REGISTER,
PETITIONERS' CLAIMS IN THAT REGARD, LIKE ANY OTHER CONTENTION THAT AN
ORDER IS INVALID, MAY BE HEARD AND DETERMINED BY THE REVIEWING COURT -
THUS DISTINGUISHING ORDERS THAT ARE NOT SIMILARLY REVIEWABLE, SEE
ALEXANDER V. UNITED STATES, 201 U.S. 117; COBBLEDICK V. UNITED STATES,
309 U.S. 323.  NEVERTHELESS, THE GOVERNMENT ARGUES THAT PETITIONERS'
CLAIMS ARE PREMATURE INSOFAR AS THEY RELATE TO "ANY PARTICULAR INQUIRY"
ON FORMS IS-52A AND IS-52.  TWO CONTINGENCIES ARE HYPOTHESIZED IN
SUPPORT OF THIS CONTENTION:  (1) THAT THE ATTORNEY GENERAL MIGHT ALTER
THE PRESENT FORMS OR (2) THAT HE MIGHT ACCEPT LESS THAN FULLY COMPLETED
FORMS. 

THE DISTINCTION UPON WHICH THIS ARGUMENT IS PREDICATED IS ILLUSORY. 
NEITHER THE STATUTE NOR THE REGULATIONS DRAW ANY DISTINCTION BETWEEN
THE ACT OF REGISTERING AND THE SUBMISSION OF A REGISTRATION STATEMENT,
ON THE ONE HAND, AND, ON THE OTHER HAND, THE ANSWERING OF THE INQUIRIES
DEMANDED BY THE FORMS; THE STATUTE AND REGULATIONS CONTEMPLATE RATHER
THAT THE QUESTIONS ASKED ON THE FORMS ARE TO BE FULLY AND COMPLETELY
ANSWERED.  MOREVER, THE CONTINGENCIES HYPOTHESIZED ARE IRRELEVANT. 
PETITIONERS ARE OBLIGED TO REGISTER AND TO SUBMIT REGISTRATION FORMS IN
ACCORDANCE WITH PRESENTLY EXISTING REGULATIONS; THE MERE CONTINGENCY
THAT THE ATTORNEY GENERAL MIGHT REVISE THE REGULATIONS AT SOME FUTURE
TIME DOES NOT RENDER PREMATURE THEIR CHALLENGE TO THE EXISTING
REQUIREMENTS.  NOR CAN THESE REQUIREMENTS BE VIEWED AS REQUIRING THAT
PETITIONERS ANSWER - AT THE RISK OF CRIMINAL PROSECUTION FOR ERROR -
ONLY THOSE ITEMS WHICH WILL NOT INCRIMINATE PETITIONERS; FULL
COMPLIANCE IS REQUIRED.  FINALLY, THE GOVERNMENT'S ARGUMENT WOULD DO
VIOLENCE TO THE CONGRESSIONAL SCHEME.  THE PENALTIES ARE INCURRED ONLY
UPON FAILURE TO REGISTER AS REQUIRED BY FINAL ORDERS AND, UNDER SEC.
14(B), ORDERS BECOME FINAL UPON COMPLETION OF JUDICIAL REVIEW.  IN SO
PROVIDING, CONGRESS PLAINLY MANIFESTED AN INTENTION TO AFFORD ALLEGED
MEMBERS, PRIOR TO CRIMINAL PROSECUTION FOR FAILURE TO REGISTER, AN
ADJUDICATION OF ALL, NOT JUST SOME, OF THE CLAIMS ADDRESSED TO THE
VALIDITY OF THE BOARD'S REGISTRATION ORDERS.  WE THEREFORE PROCEED TO A
DETERMINATION OF THE MERITS OF PETITIONERS' SELF-INCRIMINATION CLAIMS. 

                                            II. 

THE RISKS OF INCRIMINATION WHICH THE PETITIONERS TAKE IN REGISTERING
ARE OBVIOUS.  FORM IS-52A REQUIRES AN ADMISSION OF MEMBERSHIP IN THE
COMMUNIST PARTY.  SUCH AN ADMISSION OF MEMBERSHIP MAY BE USED TO
PROSECUTE THE REGISTRANT UNDER THE MEMBERSHIP CLAUSE OF THE SMITH ACT,
18 U.S.C. SEC. 2385 (1964 ED.), OR UNDER SEC. 4(A) OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT, 64 STAT. 991, 50 U.S.C. SEC.  783(A) (1964
ED.), TO MENTION ONLY TWO FEDERAL CRIMINAL STATUTES.  SCALES V. UNITED
STATES, 367 U.S. 203, 211.  ACCORDINGLY, WE HAVE HELD THAT MERE
ASSOCIATION WITH THE COMMUNIST PARTY PRESENTS SUFFICIENT THREAT OF
PROSECUTION TO SUPPORT A CLAIM OF PRIVILEGE.  PATRICIA BLAU V. UNITED
STATES, 340 U.S. 159; IRVING BLAU V. UNITED STATES, 340 U.S. 332;
BRUNNER V. UNITED STATES, 343 U.S. 918; QUINN V. UNITED STATES, 349
U.S. 155.  THESE CASES INVOLVED QUESTIONS TO WITNESSES ON THE WITNESS
STAND, BUT IF THE ADMISSION CANNOT BE COMPELLED IN ORAL TESTIMONY, WE
DO NOT SEE HOW COMPULSION IN WRITING MAKES A DIFFERENCE FOR
CONSTITUTIONAL PURPOSES.  CF. NEW YORK EX REL. FERGUSON V. REARDON, 197
N.Y. 236, 243-244, 90 N.E. 829, 832.  IT FOLLOWS THAT THE REQUIREMENT
TO ACCOMPLISH REGISTRATION BY COMPLETING AND FILING FORM IS-52A IS
INCONSISTENT WITH THE PROTECTION OF THE SELF-INCRIMINATION CLAUSE. 

THE STATUTORY SCHEME, IN PROVIDING THAT REGISTRATION "SHALL BE
ACCOMPANIED" BY A REGISTRATION STATEMENT, CLEARLY IMPLIES THAT THERE IS
A DUTY TO FILE FORM IS-52, THE REGISTRATION STATEMENT, ONLY IF THERE IS
AN ENFORCEABLE OBLIGATION TO ACCOMPLISH REGISTRATION BY COMPLETING AND
FILING FORM IS-52A.  YET, EVEN IF THE STATUTE AND REGULATIONS REQUIRED
PETITIONERS TO COMPLETE AND FILE FORM IS-52 WITHOUT REGARD TO THE
VALIDITY OF THE ORDER TO REGISTER ON FORM IS-52A, THE REQUIREMENT TO
COMPLETE AND FILE FORM IS-52 WOULD ALSO INVADE THE PRIVILEGE.  LIKE THE
ADMISSION OF PARTY MEMBERSHIP DEMANDED BY FORM IS-52A, THE INFORMATION
CALLED FOR BY FORM IS-52 - THE ORGANIZATION OF WHICH THE REGISTRANT IS
A MEMBER, HIS ALIASES, PLACE AND DATE OF BIRTH, A LIST OF OFFICES HELD
IN THE ORGANIZATION AND DUTIES THEREOF - MIGHT BE USED AS EVIDENCE IN
OR AT LEAST SUPPLY INVESTIGATORY LEADS TO A CRIMINAL PROSECUTION.  THE
GOVERNMENT, RELYING ON UNITED STATES V. SULLIVAN, 274 U.S.259, ARGUES
THAT PETITIONERS MIGHT ANSWER SOME QUESTIONS AND APPROPRIATELY CLAIM
THE PRIVILEGE ON THE FORM AS TO OTHERS, BUT CANNOT FAIL TO SUBMIT A
REGISTRATION STATEMENT ALTOGETHER.  APART FROM OUR CONCLUSION THAT
NOTHING IN THE ACT OR REGULATIONS PERMITS LESS THAN LITERAL AND FULL
COMPLIANCE WITH THE REQUIREMENTS OF THE FORM, THE RELIANCE ON SULLIVAN
IS MISPLACED.  SULLIVAN UPHELD A CONVICTION FOR FAILURE TO FILE AN
INCOME TAX RETURN ON THE THEORY THAT "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 263.  THAT
DECLARATION WAS BASED ON THE VIEW, FIRST, THAT A SELF-INCRIMINATION
CLAIM AGAINST EVERY QUESTION ON THE TAX RETURN, OR BASED ON THE MERE
SUBMISSION OF THE RETURN, WOULD BE VIRTUALLY FRIVOLOUS, AND SECOND,
THAT TO HONOR THE CLAIM OF PRIVILEGE NOT ASSERTED AT THE TIME THE
RETURN WAS DUE WOULD MAKE THE TAXPAYER RATHER THAN A TRIBUNAL THE FINAL
ARBITER OF THE MERITS OF THE CLAIM.  BUT NEITHER REASON APPLIES HERE. 
A TRIBUNAL, THE BOARD, HAD AN OPPORTUNITY TO PASS UPON THE PETITIONERS'
SELF-INCRIMINATION CLAIMS; AND SINCE, UNLIKE A TAX RETURN, THE
PERVASIVE EFFECT OF THE INFORMATION CALLED FOR BY FORM IS-52 IS
INCRIMINATORY, THEIR CLAIMS ARE SUBSTANTIAL AND FAR FROM FRIVOLOUS.  IN
SULLIVAN THE QUESTIONS IN THE INCOME TAX RETURN WERE NEUTRAL ON THEIR
FACE AND DIRECTED AT THE PUBLIC AT LARGE, BUT HERE THEY ARE DIRECTED AT
A HIGHLY SELECTIVE GROUP INHERENTLY SUSPECT OF CRIMINAL ACTIVITIES. 
PETITIONERS' CLAIMS ARE NOT ASSERTED IN AN ESSENTIALLY NON-CRIMINAL AND
REGULATORY AREA OF INQUIRY, BUT AGAINST AN INQUIRY IN AN AREA PERMEATED
WITH CRIMINAL STATUTES, WHERE RESPONSE TO ANY OF THE FORM'S QUESTIONS
IN CONTEXT MIGHT INVOLVE THE PETITIONERS IN THE ADMISSION OF A CRUCIAL
ELEMENT OF A CRIME. 

                                            III. 

DOES NOT SAVE THE REGISTRATION ORDERS FROM PETITIONERS' FIFTH AMENDMENT
CHALLENGE.  IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, DECIDED IN 1892,
THE COURT HELD "THAT NO IMMUNITY STATUTE WHICH LEAVES THE PARTY OR
WITNESS SUBJECT TO PROSECUTION AFTER HE ANSWERS THE CRIMINATING
QUESTION PUT TO HIM, CAN HAVE THE EFFECT OF SUPPLANTING THE PRIVILEGE
...  ," AND THAT SUCH A STATUTE IS VALID ONLY IF IT SUPPLIES "A
COMPLETE PROTECTION FROM ALL THE PERILS AGAINST WHICH THE
CONSTITUTIONAL PROHIBITION WAS DESIGNED TO GUARD ...  " BY AFFORDING
"ABSOLUTE IMMUNITY AGAINST FUTURE PROSECUTION FOR THE OFFENCE TO WHICH
THE QUESTION RELATES."  ID., AT 585-586.  MEASURED BY THESE STANDARDS,
THE IMMUNITY GRANTED BY SEC. 4(F) IS NOT COMPLETE.  SEE SCALES V.
UNITED STATES, 367 U.S., AT 206-219.  IT DOES NOT PRECLUDE ANY USE OF
THE INFORMATION CALLED FOR BY FORM IS-52, EITHER AS EVIDENCE OR AS AN
INVESTIGATORY LEAD.  WITH REGARD TO THE ACT OF REGISTERING ON FORM IS
52A, SEC. 4(F) PROVIDES ONLY THAT THE ADMISSION OF PARTY MEMBERSHIP
THUS REQUIRED SHALL NOT PER SE CONSTITUTE A VIOLATION OF SECS. 4(A) AND
(C) OR ANY OTHER CRIMINAL STATUTE, OR "BE RECEIVED IN EVIDENCE" AGAINST
A REGISTRANT IN ANY CRIMINAL PROSECUTION; IT DOES NOT PRECLUDE THE USE
OF THE ADMISSION AS AN INVESTIGATORY LEAD, A USE WHICH IS BARRED BY THE
PRIVILEGE.  COUNSELMAN V. HITCHCOCK, 142 U.S., AT 564-565, 585. 
(FN11)    THE GOVERNMENT DOES NOT CONTEND THAT THE SHORTCOMING OF SEC.
4(F) IS REMEDIED IN REGARD TO INFORMATION CALLED FOR ON THE
REGISTRATION STATEMENT, FORM IS-52.  WITH RESPECT TO FORM IS-52A,
HOWEVER, THE ARGUMENT IS MADE THAT, SINCE AN ORDER TO REGISTER IS
PRECEDED BY A BOARD FINDING OF PARTY MEMBERSHIP, THE ADMISSION OF
MEMBERSHIP REQUIRED ON THAT FORM WOULD BE OF NO INVESTIGATORY VALUE AND
THUS IS NOT "INCRIMINATORY" WITHIN THE MEANING OF THE FIFTH AMENDMENT
PRIVILEGE.  ON THIS VIEW THE INCOMPLETENESS OF THE SEC. 4(F) GRANT OF
IMMUNITY WOULD BE RENDERED IMMATERIAL AND THE ADMISSION OF PARTY
MEMBERSHIP COULD BE COMPELLED WITHOUT VIOLATING THE PRIVILEGE.  WE
DISAGREE.  THE JUDGMENT AS TO WHETHER A DISCLOSURE WOULD BE
"INCRIMINATORY" HAS NEVER BEEN MADE DEPENDENT ON AN ASSESSMENT OF THE
INFORMATION POSSESSED BY THE GOVERNMENT AT THE TIME OF INTERROGATION;
THE PROTECTION OF THE PRIVILEGE WOULD BE SERIOUSLY IMPAIRED IF THE
RIGHT TO INVOKE IT WAS DEPENDENT ON SUCH AN ASSESSMENT, WITH ALL ITS
UNCERTAINTIES.  THE THREAT TO THE PRIVILEGE IS NO LESS PRESENT WHERE IT
IS PROPOSED THAT THIS ASSESSMENT BE MADE IN ORDER TO REMEDY A
SHORTCOMING IN A STATUTORY GRANT OF IMMUNITY.  THE REPRESENTATION THAT
THE INFORMATION DEMANDED IS OF NO UTILITY IS BELIED BY THE FACT THAT
THE FAILURE TO MAKE THE DISCLOSURE IS SO SEVERELY SANCTIONED; AND
PERMITTING THE INCOMPLETENESS OF SEC. 4(F) TO BE CURED BY SUCH A
REPRESENTATION WOULD RENDER ILLUSORY THE COUNSELMAN REQUIREMENT THAT A
STATUTE, IN ORDER TO SUPPLANT THE PRIVILEGE, MUST PROVIDE "COMPLETE
PROTECTION FROM ALL THE PERILS AGAINST WHICH THE CONSTITUTIONAL
PROHIBITION WAS DESIGNED TO GUARD." 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE BOARD'S
ORDERS ARE SET ASIDE.  IT IS SO ORDERED. 

FN1 THE JUDGMENT OF CONVICTION OF THE PARTY FOR FAILURE TO REGISTER
WAS REVERSED BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT, AND THE CASE REMANDED FOR A NEW TRIAL.  COMMUNIST PARTY OF THE
UNITED STATES V. UNITED STATES, 118 U.S. APP. D.C. 61, 331 F.2D 807. 

FN2  UNDER THIS SECTION THE REGISTRATION STATEMENT WHICH ACCOMPANIES
THE REGISTRATION OF A COMMUNIST-ACTION ORGANIZATION IS REQUIRED TO
INCLUDE "THE NAME AND LAST-KNOWN ADDRESS OF EACH INDIVIDUAL WHO WAS A
MEMBER OF THE ORGANIZATION AT ANY TIME DURING THE PERIOD OF TWELVE FULL
CALENDAR MONTHS PRECEDING THE FILING OF SUCH STATEMENT." 

FN3  SECTIONS 8(A) AND (C), 64 STAT. 995, 50 U.S.C. SECS. 787(A) AND
(C) (1964 ED.), PROVIDE: 

"(A)  ANY INDIVIDUAL WHO IS OR BECOMES A MEMBER OF ANY ORGANIZATION
CONCERNING WHICH (1) THERE IS IN EFFECT A FINAL ORDER OF THE BOARD
REQUIRING SUCH ORGANIZATION TO REGISTER UNDER SECTION 786(A) OF THIS
TITLE AS A COMMUNIST-ACTION ORGANIZATION, (2) MORE THAN THIRTY DAYS
HAVE ELAPSED SINCE SUCH ORDER HAS BECOME FINAL, AND (3) SUCH
ORGANIZATION IS NOT REGISTERED UNDER SECTION 786 OF THIS TITLE AS A
COMMUNIST-ACTION ORGANIZATION, SHALL WITHIN SIXTY DAYS AFTER SAID ORDER
HAS BECOME FINAL, OR WITHIN THIRTY DAYS AFTER BECOMING A MEMBER OF SUCH
ORGANIZATION, WHICHEVER IS LATER, REGISTER WITH THE ATTORNEY GENERAL AS
A MEMBER OF SUCH ORGANIZATION. 

     *         *      *         *         * 

"(C)  THE REGISTRATION MADE BY ANY INDIVIDUAL UNDER SUBSECTION (A) OR
(B) OF THIS SECTION SHALL BE ACCOMPANIED BY A REGISTRATION STATEMENT TO
BE PREPARED AND FILED IN SUCH MANNER AND FORM, AND CONTAINING SUCH
INFORMATION, AS THE ATTORNEY GENERAL SHALL BY REGULATIONS PRESCRIBE." 

PROVIDES: 

"WHENEVER THE ATTORNEY GENERAL SHALL HAVE REASON TO BELIEVE THAT  ...
ANY INDIVIDUAL WHO HAS NOT REGISTERED UNDER SECTION 787 OF THIS TITLE
IS IN FACT REQUIRED TO REGISTER UNDER SUCH SECTION, HE SHALL FILE WITH
THE BOARD AND SERVE UPON SUCH  ...  INDIVIDUAL A PETITION FOR AN ORDER
REQUIRING SUCH  ...  INDIVIDUAL TO REGISTER PURSUANT TO SUCH SUBSECTION
OR SECTION, AS THE CASE MAY BE.  EACH SUCH PETITION SHALL BE VERIFIED
UNDER OATH, AND SHALL CONTAIN A STATEMENT OF THE FACTS UPON WHICH THE
ATTORNEY GENERAL RELIES IN SUPPORT OF HIS PRAYER FOR THE ISSUANCE OF
SUCH ORDER." 

FN4  SECTION 14(A), 64 STAT. 1001, 50 U.S.C. SEC. 793(A) (1964 ED.),
PROVIDES: 

"THE PARTY AGGRIEVED BY ANY ORDER ENTERED BY THE BOARD  ...  MAY
OBTAIN A REVIEW OF SUCH ORDER BY FILING IN THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA, WITHIN SIXTY DAYS FROM THE DATE
OF SERVICE UPON IT OF SUCH ORDER, A WRITTEN PETITION PRAYING THAT THE
ORDER OF THE BOARD BE SET ASIDE  ...  .  UPON THE FILING OF SUCH
PETITION THE COURT SHALL HAVE JURISDICTION OF THE PROCEEDING AND SHALL
HAVE POWER TO AFFIRM OR SET ASIDE THE ORDER OF THE BOARD  ...  .  THE
FINDINGS OF THE BOARD AS TO THE FACTS, IF SUPPORTED BY THE
PREPONDERANCE OF THE EVIDENCE, SHALL BE CONCLUSIVE  ...  .  THE
JUDGMENT AND DECREE OF THE COURT SHALL BE FINAL, EXCEPT THAT THE SAME
SHALL BE SUBJECT TO REVIEW BY THE SUPREME COURT UPON CERTIORARI  ...
." 

FN5  THE GOVERNMENT'S OPPOSITION TO THE PETITION FOR CERTIORARI
SUGGESTED THAT THE CASE IS MOOT AS TO PETITIONER ALBERTSON BY REASON OF
HIS ALLEGED EXPULSION FROM THE PARTY.  ALBERTSON, HOWEVER, CHALLENGES
THE SUGGESTION OF MOOTNESS.  THERE IS NO OCCASION TO DECIDE THE
QUESTION SINCE, IN ANY EVENT, WE MUST REACH THE MERITS OF THE ISSUES IN
RESPECT OF AN IDENTICAL ORDER ISSUED AGAINST PETITIONER PROCTOR. 

FN6  PETITIONERS' OTHER CHALLENGES ASSAILED THE ACT AND REGISTRATION
ORDERS AS DENYING SUBSTANTIVE DUE PROCESS (BECAUSE THEY ALLEGEDLY SERVE
NO GOVERNMENTAL PURPOSE), AS ABRIDGING FIRST AMENDMENT FREEDOMS, AS
VIOLATING PROCEDURAL DUE PROCESS AND CONSTITUTING BILLS OF ATTAINDER
(BECAUSE THEY MADE THE BOARD'S 1953 DETERMINATION THAT THE COMMUNIST
PARTY WAS A COMMUNIST-ACTION ORGANIZATION CONCLUSIVE UPON PETITIONERS),
AND FINALLY, AS DENYING PETITIONERS THE SAFEGUARDS OF GRAND JURY
INDICTMENT, JUDICIAL TRIAL AND TRIAL BY JURY. 

FN7  THE REGULATIONS GOVERNING PARTY REGISTRATION PURSUANT TO SEC.
7(D), 50 U.S.C. SEC. 786(D), ARE 28 CFR SECS. 11.200 AND 11.201, AND
THE FORMS ARE IS-51A AND IS-51.  THE REGULATION GOVERNING OFFICERS
OBLIGED BY SEC. 7(H), 50 U.S.C. SEC. 786(H) "TO REGISTER FOR" THE PARTY
IF IT FAILED TO REGISTER IS 28 CFR SEC. 11.205.  SEE COMMUNIST PARTY,
367 U.S., AT 105-110. 

FN8  COPIES OF FORM IS-52A AND FORM IS-52 ARE REPRODUCED IN THE
APPENDIX TO THIS OPINION. 

FN9  THE CASE WAS ARGUED ORALLY BY BOTH SIDES ON THE PREMISE THAT THE
PENALTY FOR FAILURE TO COMPLETE AND FILE FORM IS-52 CONSTITUTED A
SEPARATE OFFENSE PUNISHABLE BY FINE OF UP TO $10,000 OR IMPRISONMENT OF
UP TO FIVE YEARS, OR BOTH, BUT THAT EACH DAY OF FAILURE TO FILE THE
FORM DID NOT CONSTITUTE A SEPARATE OFFENSE.  WE HAVE NO OCCASION,
HOWEVER, TO DECIDE THE QUESTION, AND INTIMATE NO VIEW UPON IT.  SEE
SEC. 15(B), 50 U.S.C. SEC. 794(B). 

FN10  SECTION 4(F), 64 STAT. 992, 50 U.S.C. SEC. 783(F) PROVIDES: 

"NEITHER THE HOLDING OF OFFICE NOR MEMBERSHIP IN ANY COMMUNIST
ORGANIZATION BY ANY PERSON SHALL CONSTITUTE PER SE A VIOLATION OF
SUBSECTION (A) OR SUBSECTION (C) OF THIS SECTION OR OF ANY OTHER
CRIMINAL STATUTE.  THE FACT OF THE REGISTRATION OF ANY PERSON UNDER
COMMUNIST ORGANIZATION SHALL NOT BE RECEIVED IN EVIDENCE AGAINST SUCH
PERSON IN ANY PROSECUTION FOR ANY ALLEGED VIOLATION OF SUBSECTION (A)
OR SUBSECTION (C) OF THIS SECTION OR FOR ANY ALLEGED VIOLATION OF ANY
OTHER CRIMINAL STATUTE." 

FN11  THE LEGISLATIVE HISTORY INCLUDES SEVERAL EXPRESSIONS OF DOUBT
THAT THE IMMUNITY GRANTED WAS COEXTENSIVE WITH THE PRIVILEGE.  SEE S.
REP. NO. 2369, 81ST CONG., 2D SESS., PT. 2, PP.  12-13 (SEN.
KILGORE)(MINORITY REPORT); 96 CONG. REC. 14479 (SEN. HUMPHREY); 96
CONG. REC.  15199 AND 15554 (SEN. KEFAUVER); SEE ALSO 96 CONG. REC.
13739-13740 (REP. CELLER), DEALING WITH A MORE MODIFIED IMMUNITY GRANT
IN H.R. 9490.  SEE GENERALLY SCALES V. UNITED STATES, 367 U.S., AT 212
219 (COURT OPINION), 282-287 (DISSENTING OPINION). 

MR. JUSTICE BLACK CONCURS IN THE REVERSAL FOR ALL THE REASONS SET OUT
IN THE COURT'S OPINION AS WELL AS THOSE SET OUT IN HIS DISSENT IN
COMMUNIST PARTY OF THE UNITED STATES V. SACB, 367 U.S. 1, 137. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

                             APPENDIX TO OPINION OF THE COURT. 

FORM IS-52A IS AS FOLLOWS: 

FORM NO. IS-52A 

(ED. 9-6-61) 

BUDGET BUREAU NO. 43-R414 

APPROVAL EXPIRES JULY 31, 1966

                           UNITED STATES DEPARTMENT OF JUSTICE

            WASHINGTON D.C.

REGISTRATION FORM FOR INDIVIDUALS

  PURSUANT TO SECTION 8(A) OR (B) OF

       THE INTERNAL SECURITY ACT OF 1950

          (NOTE:  THIS FORM SHOULD BE ACCOMPANIED BY A

                             REGISTRATION STATEMENT, FORM IS-52) 

...............................HEREBY 

(NAME OF INDIVIDUAL - PRINT OR TYPE) 

REGISTERS AS A MEMBER OF.........................., 

A COMMUNIST-ACTION ORGANIZATION. 

                  /S/  ...............................

                         (SIGNATURE)              (DATE)

                           ...............................

                            (TYPED OR PRINTED NAME)  (DATE)

                            ...............................

                            (ADDRESS - TYPE OR PRINT) 

FORM IS-52 IS AS FOLLOWS:

                            BUDGET BUREAU NO. 43-R301.2

                            APPROVAL EXPIRES JULY 31, 1966

                    UNITED STATES DEPARTMENT OF JUSTICE

                             WASHINGTON, D.C.

                               FORM IS-52

                                   FOR

 REGISTRATION STATEMENTS OF INDIVIDUALS

  PURSUANT TO SECTION 8 OF THE INTERNAL

          SECURITY ACT OF 1950

                   INSTRUCTION SHEET - READ CAREFULLY 

1.  ALL INDIVIDUALS REQUIRED TO REGISTER UNDER SECTION 8 OF THE
INTERNAL SECURITY ACT OF 1950 SHALL USE THIS FORM FOR THEIR
REGISTRATION STATEMENTS. 

2.  TWO COPIES OF THE STATEMENT ARE TO BE FILED.  AN ADDITIONAL COPY
OF THE STATEMENT SHOULD BE PREPARED AND RETAINED BY THE REGISTRANT FOR
FUTURE REFERENCES. 

3.  THE STATEMENT IS TO BE FILED WITH THE INTERNAL SECURITY DIVISION,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

4.  ALL ITEMS OF THE FORM ARE TO BE ANSWERED.  WHERE THE ANSWER TO AN
ITEM IS "NONE" OR "INAPPLICABLE," IT SHOULD BE SO STATED. 

5.  BOTH COPIES OF THE STATEMENT ARE TO BE SIGNED.  THE MAKING OF ANY
WILLFUL FALSE STATEMENT OR THE OMISSION OF ANY MATERIAL FACT IS
PUNISHABLE UNDER 18 U.S. CODE, 1001. 

6.  IF THE SPACE PROVIDED ON THE FORM FOR THE ANSWER TO ANY GIVEN
ITEM IS INSUFFICIENT, REFERENCE SHALL BE MADE IN SUCH SPACE TO A FULL
INSERT PAGE OR PAGES ON WHICH THE ITEM NUMBER AND ITEM SHALL BE
RESTATED AND THE ANSWER GIVEN. 

                                 FOR AN INDIVIDUAL 

A. WHO IS A MEMBER OF ANY COMMUNIST-ACTION ORGANIZATION WHICH HAS
FAILED TO FILE A REGISTRATION STATEMENT AS REQUIRED BY SECTION 7(A) OF
THE INTERNAL SECURITY ACT OF 1950. 

                          OR 

B. WHO IS A MEMBER OF ANY ORGANIZATION WHICH HAS REGISTERED AS A
COMMUNIST-ACTION ORGANIZATION UNDER SECTION 7(A) OF THE INTERNAL
SECURITY ACT OF 1950 BUT WHICH HAS FAILED TO INCLUDE THE INDIVIDUAL'S
NAME UPON THE LIST OF MEMBERS FILED WITH THE ATTORNEY GENERAL. 

1.  NAME OF THE COMMUNIST-ACTION ORGANIZATION OF WHICH REGISTRANT WAS
A MEMBER WITHIN THE PRECEDING TWELVE MONTHS. 

2.  (A)  NAME OF REGISTRANT. 

(B)  ALL OTHER NAMES USED BY REGISTRANT DURING THE PAST TEN YEARS AND
DATES WHEN USED. 

(C)  DATE OF BIRTH. 

(D)  PLACE OF BIRTH. 

3.  (A)  PRESENT BUSINESS ADDRESS. 

(B)  PRESENT RESIDENCE ADDRESS. 

4.  IF THE REGISTRANT IS NOW OR HAS WITHIN THE PAST TWELVE MONTHS
BEEN AN OFFICER OF THE COMMUNIST-ACTION ORGANIZATION LISTED IN RESPONSE
TO QUESTION NUMBER 1: 

(A)  LIST ALL OFFICES SO HELD AND THE DATE WHEN HELD. 

(B)  GIVE A DESCRIPTION OF THE DUTIES OR FUNCTIONS PERFORMED DURING
TENURE OF OFFICE. 

THE UNDERSIGNED CERTIFIES THAT HE HAS READ THE INFORMATION SET FORTH
IN THIS STATEMENT, THAT HE IS FAMILIAR WITH THE CONTENTS THEREOF, AND
THAT SUCH CONTENTS ARE IN THEIR ENTIRETY TRUE AND ACCURATE TO THE BEST
OF HIS KNOWLEDGE AND BELIEF.  THE UNDERSIGNED FURTHER REPRESENTS THAT
HE IS FAMILIAR WITH THE PROVISIONS OF SECTION 1001, TITLE 18, U.S.C.
(PRINTED AT THE BOTTOM OF THIS FORM).*

        /S/  ....................................

                   (SIGNATURE)                   (DATE)

                   /T/  .....................................

                          (NAME)  (DATE)

                                    (PRINT OR TYPE) 

*18 U.S.C., SECTION 1001, PROVIDES:  WHOEVER, IN ANY MATTER WITHIN
THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES
KNOWINGLY AND WILLFULLY FALSIFIES, CONCEALS OR COVERS UP BY ANY TRICK,
SCHEME, OR DEVICE A MATERIAL FACT, OR MAKES ANY FALSE, FICTITIOUS OR
FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKES OR USES ANY FALSE
WRITING OR DOCUMENT KNOWING THE SAME TO CONTAIN ANY FALSE, FICTITIOUS
OR FRAUDULENT STATEMENT OR ENTRY, SHALL BE FINED NOT MORE THAN $10,000
OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH. 

MR. JUSTICE CLARK, CONCURRING.    I JOIN IN THE OPINION OF THE
COURT.  THE CONCLUSION IT REACHES TODAY WAS FORECAST IN 1948.  IN
RESPONSE TO THE REQUEST OF THE CHAIRMAN OF THE SENATE JUDICIARY
COMMITTEE FOR AN EXPRESSION OF THE VIEWS OF THE DEPARTMENT OF JUSTICE
ON H.R. 5852, A PRECURSOR OF THE ACT HERE UNDER ATTACK, IT WAS THEN
POINTED OUT THAT THE "MEASURE MIGHT BE HELD  ...  EVEN TO COMPEL SELF
INCRIMINATION."* 

*HEARINGS ON H.R. 5852 BEFORE THE SENATE COMMITTEE ON THE JUDICIARY,
80TH CONG., 2D SESS., 422 (1948). 

THIS VIEW WAS EXPRESSED IN A LETTER OVER MY SIGNATURE AS ATTORNEY
GENERAL WHICH NOTED THAT THE PROPOSED LEGISLATION "WOULD REQUIRE EVERY
COMMUNIST POLITICAL ORGANIZATION AND EVERY COMMUNIST-FRONT ORGANIZATION
TO REGISTER  ...  .  IN ADDITION TO INFORMATION WHICH WOULD BE REQUIRED
OF BOTH ORGANIZATIONS IN COMMON, A COMMUNIST POLITICAL ORGANIZATION
WOULD BE OBLIGED TO DISCLOSE THE NAMES AND ADDRESSES OF ITS MEMBERS IN
ITS REGISTRATION STATEMENT ...  .  IN CASE OF THE FAILURE OF ANY
ORGANIZATION TO REGISTER IN ACCORDANCE WITH THE MEASURE, IT WOULD BE
THE DUTY OF THE EXECUTIVE OFFICER AND THE SECRETARY OF SUCH
ORGANIZATION TO REGISTER IN BEHALF OF THE ORGANIZATION  ...  .  A
FAILURE TO REGISTER  ...  SUBJECTS THE ORGANIZATION AND CERTAIN OF ITS
AGENTS TO SEVERE PENALITIES."   AFTER CONSIDERATION OF OTHER PROVISIONS
OF THE BILL THE LETTER ADVISED THAT THE DEPARTMENT OF JUSTICE HAD
CONCLUDED THAT "THE MEASURE MIGHT BE HELD (NOTWITHSTANDING THE
LEGISLATIVE FINDING OF CLEAR AND PRESENT DANGER) TO DENY FREEDOM OF
SPEECH, OF THE PRESS, AND OF ASSEMBLY, AND EVEN TO COMPEL SELF
INCRIMINATION."  IT ALSO EXPRESSED THE BELIEF OF THE DEPARTMENT THAT
"THERE WOULD NOT BE ANY VOLUNTARY REGISTRATIONS UNDER THE MEASURE. 
SHOULD A COMMUNIST ORGANIZATION FAIL TO REGISTER, THE BURDEN TO PROCEED
WOULD SHIFT TO THE ATTORNEY GENERAL ...  TO PROVE THAT THE ORGANIZATION
IS REQUIRED TO REGISTER." 

AS FINALLY PASSED, THE ACT IMPOSED A DUTY TO REGISTER UPON INDIVIDUAL
MEMBERS AFTER THE REFUSAL OF THE COMMUNIST PARTY TO REGISTER AND
DISCLOSE ITS MEMBERSHIP.  THOUGH NOT IN H.R.  5852 ABOUT WHICH THE
DEPARTMENT OF JUSTICE EXPRESSED CONSTITUTIONAL DOUBTS, THIS MORE
PERVASIVE REGISTRATION REQUIREMENT DIRECTLY ABRIDGES THE PRIVILEGES OF
MEMBERS AGAINST SELF-INCRIMINATION.  I THEREFORE JOIN IN THIS
REVERSAL. 
..END :
















SHUTTLESWORTH V. BIRMINGHAM 382 U.S. 87 


NO. 5.  ARGUED OCTOBER 11, 1965.  - DECIDED NOVEMBER 15, 1965.  - 42
ALA. APP. 296, 161 SO. 2D 796, REVERSED AND REMANDED. 


PETITIONER AND A GROUP OF COMPANIONS WERE STANDING NEAR A STREET
INTERSECTION ON A BIRMINGHAM, ALABAMA, SIDEWALK WHICH A POLICEMAN
THRICE REQUESTED THEM TO CLEAR FOR PEDESTRIAN PASSAGE.  AFTER THE THIRD
REQUEST, ALL BUT PETITIONER, WHO HAD BEEN QUESTIONING THE POLICEMAN
ABOUT HIS ORDER, HAD BEGUN TO WALK AWAY AND THE POLICEMAN ARRESTED
PETITIONER.  PETITIONER WAS TRIED BEFORE A COURT WITHOUT A JURY WHICH,
WITHOUT ANY FACT FINDINGS OR OPINION, CONVICTED HIM OF VIOLATING TWO
ORDINANCES, SECS. 1142 AND 1231, OF BIRMINGHAM'S CITY CODE.  THE
ALABAMA COURT OF APPEALS AFFIRMED.  BECAUSE OF THEIR BREADTH IF READ
LITERALLY, THESE ORDINANCES PRESENT GRAVE CONSTITUTIONAL PROBLEMS.  IN
OTHER DECISIONS SUBSEQUENT TO PETITIONER'S CONVICTION, SEC. 1142 WAS
CONSTRUED BY THE ALABAMA COURT OF APPEALS AS APPLICABLE ONLY TO
STANDING, LOITERING OR WALKING ON A STREET OR SIDEWALK SO AS TO
OBSTRUCT FREE PASSAGE AND REFUSING TO OBEY AN OFFICER'S REQUEST TO MOVE
ON, AND SEC. 1231 WAS CONFINED TO THE ENFORCEMENT OF THE ORDERS OF A
TRAFFIC OFFICER WHILE DIRECTING VEHICULAR TRAFFIC.  HELD: 

1.  THE CONVICTION UNDER SEC. 1142 MUST BE SET ASIDE IN VIEW OF THE
POSSIBILITY THAT IT WAS BASED UPON AN UNCONSTITUTIONAL CONSTRUCTION OF
THE ORDINANCE.  PP. 90-92. 

2.  SINCE PETITIONER, WHEN DIRECTED TO MOVE ON, WAS A PEDESTRIAN NOT
AROUND A VEHICLE AND THE ARRESTING POLICEMAN WAS NOT DIRECTING TRAFFIC,
THE CONVICTION UNDER SEC. 1231 MUST FALL FOR LACK OF ANY EVIDENCE TO
SUPPORT THE ALLEGED VIOLATION.  THOMPSON V. CITY OF LOUISVILLE, 362
U.S. 199, FOLLOWED.  PP. 93-95. 

SHUTTLESWORTH V. CITY OF BIRMINGHAM. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS BROUGHT TO TRIAL IN THE CIRCUIT COURT OF JEFFERSON
COUNTY, ALABAMA, UPON A COMPLAINT CHARGING HIM WITH VIOLATING TWO
AFTER TRIAL WITHOUT A JURY, THE COURT FOUND HIM "GUILTY AS CHARGED IN
THE COMPLAINT," AND IMPOSED A SENTENCE OF IMPRISONMENT FOR 180 DAYS AT
HARD LABOR AND AN ADDITIONAL 61 DAYS AT HARD LABOR IN DEFAULT OF A $100
FINE AND COSTS.  THE JUDGMENT OF CONVICTION WAS AFFIRMED BY THE ALABAMA
COURT OF APPEALS, 42 ALA. APP. 296, 161 SO. 2D 796, AND THE SUPREME
COURT OF ALABAMA DECLINED REVIEW.  276 ALA. 707, 161 SO. 2D 799.  WE
GRANTED CERTIORARI TO CONSIDER THE PETITIONER'S CLAIM THAT UNDER THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION HIS CONVICTION
CANNOT STAND.  380 U.S. 905. 

THE TWO ORDINANCES WHICH SHUTTLESWORTH WAS CHARGED WITH VIOLATING ARE
SECS. 1142 AND 1231 OF THE BIRMINGHAM GENERAL CITY CODE.  THE RELEVANT
PARAGRAPH OF SEC. 1142 PROVIDES:  "IT SHALL BE UNLAWFUL FOR ANY PERSON
OR ANY NUMBER OF PERSONS TO SO STAND, LOITER OR WALK UPON ANY STREET OR
SIDEWALK IN THE CITY AS TO OBSTRUCT FREE PASSAGE OVER, ON OR ALONG SAID
STREET OR SIDEWALK.  IT SHALL ALSO BE UNLAWFUL FOR ANY PERSON TO STAND
OR LOITER UPON ANY STREET OR SIDEWALK OF THE CITY AFTER HAVING BEEN
REQUESTED BY ANY POLICE OFFICER TO MOVE ON."  SECTION 1231 PROVIDES:
"IT SHALL BE UNLAWFUL FOR ANY PERSON TO REFUSE OR FAIL TO COMPLY WITH
ANY LAWFUL ORDER, SIGNAL OR DIRECTION OF A POLICE OFFICER."  THE TWO
COUNTS IN THE COMPLAINT WERE FRAMED IN THE WORDS OF THESE ORDINANCES. 
(FN2) 

THE EVIDENCE WAS IN CONFLICT, BUT THE PROSECUTION'S VERSION OF THE
FACTS CAN BE BRIEFLY SUMMARIZED.  ON APRIL 4, 1962, AT ABOUT 10:30
A.M., PATROLMAN BYARS OF THE BIRMINGHAM POLICE DEPARTMENT OBSERVED
SHUTTLESWORTH STANDING ON A SIDEWALK WITH 10 OR 12 COMPANIONS OUTSIDE A
DEPARTMENT STORE NEAR THE INTERSECTION OF 2D AVE. AND 19TH ST. IN THE
CITY OF BIRMINGHAM.  AFTER OBSERVING THE GROUP FOR A MINUTE OR SO,
BYARS WALKED UP AND "TOLD THEM THEY WOULD HAVE TO MOVE ON AND CLEAR THE
SIDEWALK AND NOT OBSTRUCT IT FOR THE PEDESTRIANS."  AFTER SOME, BUT NOT
ALL, OF THE GROUP BEGAN TO DISPERSE, BYARS REPEATED THIS REQUEST
TWICE.  IN RESPONSE TO THE SECOND REQUEST, SHUTTLESWORTH SAID, "YOU
MEAN TO SAY WE CAN'T STAND HERE ON THE SIDEWALK?"  AFTER THE THIRD
REQUEST HE REPLIED, "DO YOU MEAN TO TELL ME WE CAN'T STAND HERE IN
FRONT OF THIS STORE?"  BY THIS TIME EVERYBODY IN THE GROUP BUT
SHUTTLESWORTH HAD BEGUN TO WALK AWAY, AND PATROLMAN BYARS TOLD HIM HE
WAS UNDER ARREST.  SHUTTLESWORTH THEN RESPONDED, "WELL, I WILL GO INTO
THE STORE," AND WALKED INTO THE ENTRANCE OF THE ADJACENT DEPARTMENT
STORE.  BYARS FOLLOWED AND TOOK HIM INTO CUSTODY JUST INSIDE THE
STORE'S ENTRANCE.  (FN3)

         I. 

ON ITS FACE, THE HERE RELEVANT PARAGRAPH OF SEC. 1142 SETS OUT TWO
SEPARATE AND DISJUNCTIVE OFFENSES.  THE PARAGRAPH MAKES IT AN OFFENSE
TO "SO STAND, LOITER OR WALK UPON ANY STREET OR SIDEWALK  ...  AS TO
OBSTRUCT FREE PASSAGE OVER, ON OR ALONG SAID STREET OR SIDEWALK."  THE
PARAGRAPH MAKES IT "ALSO  ...  UNLAWFUL FOR ANY PERSON TO STAND OR
LOITER UPON ANY STREET OR SIDEWALK  ...  AFTER HAVING BEEN REQUESTED BY
ANY POLICE OFFICER TO MOVE ON."  THE FIRST COUNT OF THE COMPLAINT IN
THIS CASE, TRACKING THE ORDINANCE, CHARGED THESE TWO SEPARATE OFFENSES
IN THE ALTERNATIVE.  (FN4) 

LITERALLY READ, THEREFORE, THE SECOND PART OF THIS ORDINANCE SAYS
THAT A PERSON MAY STAND ON A PUBLIC SIDEWALK IN BIRMINGHAM ONLY AT THE
WHIM OF ANY POLICE OFFICER OF THAT CITY.  THE CONSTITUTIONAL VICE OF SO
BROAD A PROVISION NEEDS NO DEMONSTRATION.  (FN5)  IT "DOES NOT PROVIDE
FOR GOVERNMENT BY CLEARLY DEFINED LAWS, BUT RATHER FOR GOVERNMENT BY
THE MOMENT-TO-MOMENT OPINIONS OF A POLICEMAN ON HIS BEAT."  COX V.
LOUISIANA, 379 U.S. 536, 579 (SEPARATE OPINION OF MR. JUSTICE BLACK). 
INSTINCT WITH ITS EVER-PRESENT POTENTIAL FOR ARBITRARILY SUPPRESSING
FIRST AMENDMENT LIBERTIES, THAT KIND OF LAW BEARS THE HALLMARK OF A
POLICE STATE.  (FN6) 

THE MATTER IS NOT ONE WHICH NEED BE EXHAUSTIVELY PURSUED, HOWEVER,
BECAUSE, AS THE RESPONDENT CORRECTLY POINTS OUT, THE ALABAMA COURT OF
APPEALS HAS NOT READ SEC. 1142 LITERALLY, BUT HAS GIVEN TO IT AN
EXPLICITLY NARROWED CONSTRUCTION.  THE ORDINANCE, THAT COURT HAS RULED,
"IS DIRECTED AT OBSTRUCTING THE FREE PASSAGE OVER, ON OR ALONG A STREET
OR SIDEWALK BY THE MANNER IN WHICH A PERSON ACCUSED STANDS, LOITERS OR
WALKS THEREUPON.  OUR DECISIONS MAKE IT CLEAR THAT THE MERE REFUSAL TO
MOVE ON AFTER A POLICE OFFICER'S REQUESTING THAT A PERSON STANDING OR
LOITERING SHOULD DO SO IS NOT ENOUGH TO SUPPORT THE OFFENSE  ...  .
THERE MUST ALSO BE A SHOWING OF THE ACCUSED'S BLOCKING FREE PASSAGE
...  ."  MIDDLEBROOKS V. CITY OF BIRMINGHAM, 42 ALA. APP. 525, 527, 170
SO. 2D 424, 426. 

THE ALABAMA COURT OF APPEALS HAS THUS AUTHORITATIVELY RULED THAT SEC.
1142 APPLIES ONLY WHEN A PERSON WHO STANDS, LOITERS, OR WALKS ON A
STREET OR SIDEWALK SO AS TO OBSTRUCT FREE PASSAGE REFUSES TO OBEY A
REQUEST BY AN OFFICER TO MOVE ON.  IT IS OUR DUTY, OF COURSE, TO ACCEPT
THIS STATE JUDICIAL CONSTRUCTION OF THE ORDINANCE.  WINTERS V. NEW
YORK, 333 U.S. 507; UNITED STATES V. BURNISON, 339 U.S. 87; AERO
MAYFLOWER TRANSIT CO. V. BOARD OF RAILROAD COMM'RS, 332 U.S. 495.  AS
SO CONSTRUED, WE CANNOT SAY THAT THE ORDINANCE IS UNCONSTITUTIONAL,
THOUGH IT REQUIRES NO GREAT FEAT OF IMAGINATION TO ENVISAGE SITUATIONS
IN WHICH SUCH AN ORDINANCE MIGHT BE UNCONSTITUTIONALLY APPLIED. 

THE PRESENT LIMITING CONSTRUCTION OF SEC. 1142 WAS NOT GIVEN TO THE
ORDINANCE BY THE ALABAMA COURT OF APPEALS, HOWEVER, UNTIL ITS DECISION
IN MIDDLEBROOKS, SUPRA, TWO YEARS AFTER THE PETITIONER'S CONVICTION IN
THE PRESENT CASE.  (FN7)  IN MIDDLEBROOKS THE COURT OF APPEALS STATED
THAT IT HAD APPLIED ITS NARROWED CONSTRUCTION OF THE ORDINANCE IN
AFFIRMING SHUTTLESWORTH'S CONVICTION, BUT ITS OPINION IN THE PRESENT
CASE, 42 ALA. APP. 296, 161 SO. 2D 796, NOWHERE MAKES EXPLICIT ANY SUCH
CONSTRUCTION.  IN ANY EVENT, THE TRIAL COURT IN THE PRESENT CASE WAS
WITHOUT GUIDANCE FROM ANY STATE APPELLATE COURT AS TO THE MEANING OF
THE ORDINANCE. 

THE TRIAL COURT MADE NO FINDINGS OF FACT AND RENDERED NO OPINION. 
FOR ALL THAT APPEARS, THAT COURT MAY HAVE FOUND THE PETITIONER GUILTY
ONLY BY APPLYING THE LITERAL - AND UNCONSTITUTIONAL - TERMS OF THE
ORDINANCE.  UPON THE EVIDENCE BEFORE HIM, THE TRIAL JUDGE AS FINDER OF
THE FACTS MIGHT EASILY HAVE DETERMINED THAT THE PETITIONER HAD CREATED
AN OBSTRUCTION, BUT HAD SUBSEQUENTLY MOVED ON.  THE COURT MIGHT
ALTERNATIVELY HAVE FOUND THAT THE PETITIONER HIMSELF HAD CREATED NO
OBSTRUCTION, BUT HAD SIMPLY DISOBEYED PATROLMAN BYARS' INSTRUCTION TO
MOVE ON.  IN EITHER CIRCUMSTANCE THE LITERAL TERMS OF THE ORDINANCE
WOULD APPLY; IN NEITHER CIRCUMSTANCE WOULD THE ORDINANCE BE APPLICABLE
AS NOW CONSTRUED BY THE ALABAMA COURT OF APPEALS.  BECAUSE WE ARE
UNABLE TO SAY THAT THE ALABAMA COURTS IN THIS CASE DID NOT JUDGE THE
PETITIONER BY AN UNCONSTITUTIONAL CONSTRUCTION OF THE ORDINANCE, THE
PETITIONER'S CONVICTION UNDER SEC. 1142 CANNOT STAND. 

                   II. 

WE FIND THE PETITIONER'S CONVICTION UNDER THE SECOND COUNT OF THE
COMPLAINT, FOR VIOLATION OF SEC. 1231 OF THE GENERAL CITY CODE, TO BE
CONSTITUTIONALLY INVALID FOR A COMPLETELY DISTINCT REASON.  THAT
ORDINANCE MAKES IT A CRIMINAL OFFENSE FOR ANY PERSON "TO REFUSE OR FAIL
TO COMPLY WITH ANY LAWFUL ORDER, SIGNAL OR DIRECTION OF A POLICE
OFFICER."  LIKE THE PROVISIONS OF SEC.  1142 DISCUSSED ABOVE, THE
LITERAL TERMS OF THIS ORDINANCE ARE SO BROAD AS TO EVOKE CONSTITUTIONAL
DOUBTS OF THE UTMOST GRAVITY.  BUT THE ALABAMA COURT OF APPEALS HAS
CONFINED THIS ORDINANCE TO A RELATIVELY NARROW SCOPE.  IN REVERSING THE
CONVICTION OF THE PETITIONER'S CODEFENDANT, THE COURT SAID OF SEC.
1231: "THIS SECTION APPEARS IN THE CHAPTER REGULATING VEHICULAR
TRAFFIC, AND PROVIDES FOR THE ENFORCEMENT OF THE ORDERS OF THE OFFICERS
OF THE POLICE DEPARTMENT IN DIRECTING SUCH TRAFFIC."  PHIFER V. CITY OF
BIRMINGHAM, 42 ALA. APP. 282, 285, 160 SO. 2D 898, 901.  (FN8) 

THE RECORD CONTAINS NO EVIDENCE WHATEVER THAT PATROLMAN BYARS WAS
DIRECTING VEHICULAR TRAFFIC AT THE TIME HE TOLD THE PETITIONER AND HIS
COMPANIONS TO MOVE ON.  WHATEVER PATROLMAN BYAR'S OTHER GENERALLY
ASSIGNED DUTIES MAY HAVE BEEN, (FN9) HE TESTIFIED UNAMBIGUOUSLY THAT HE
DIRECTED THE PETITIONER'S GROUP TO MOVE ON, TO "CLEAR THE SIDEWALK AND
NOT OBSTRUCT IT FOR THE PEDESTRIANS."  (FN10) 

FIVE YEARS AGO THIS COURT DECIDED THE CASE OF THOMPSON V. CITY OF
LOUISVILLE, 362 U.S. 199.  THERE WE REVERSED THE CONVICTION OF A MAN
WHO HAD BEEN FOUND GUILTY IN THE POLICE COURT OF LOUISVILLE, KENTUCKY,
OF LOITERING AND DISORDERLY CONDUCT.  THE PROPOSITION FOR WHICH THAT
CASE STANDS IS SIMPLE AND CLEAR.  IT HAS NOTHING TO DO WITH CONCEPTS
RELATING TO THE WEIGHT OR SUFFICIENCY OF THE EVIDENCE IN ANY PARTICULAR
CASE.  IT GOES, RATHER, TO THE MOST BASIC CONCEPTS OF DUE PROCESS OF
LAW.  ITS APPLICATION IN THOMPSON'S CASE TURNED, AS MR. JUSTICE BLACK
POINTED OUT, "NOT ON THE SUFFICIENCY OF THE EVIDENCE, BUT ON WHETHER
THIS CONVICTION RESTS UPON ANY EVIDENCE AT ALL."  362 U.S., AT 199. 
THE COURT FOUND THERE WAS "NO EVIDENCE WHATEVER IN THE RECORD TO
SUPPORT THESE CONVICTIONS," AND HELD THAT IT WAS "A VIOLATION OF DUE
PROCESS TO CONVICT AND PUNISH A MAN WITHOUT EVIDENCE OF HIS GUILT." 
362 U.S., AT 206.  SEE ALSO GARNER V. LOUISIANA, 368 U.S. 157. 

NO MORE NEED BE SAID IN THIS CASE WITH RESPECT TO THE PETITIONER'S
CONVICTION FOR VIOLATING SEC. 1231 OF THE GENERAL CODE OF THE CITY OF
BIRMINGHAM, ALABAMA.  QUITE SIMPLY, THE PETITIONER WAS NOT IN, ON, OR
AROUND ANY VEHICLE AT THE TIME HE WAS DIRECTED TO MOVE ON OR AT THE
TIME HE WAS ARRESTED.  HE WAS A PEDESTRIAN.  OFFICER BYARS DID NOT
ISSUE ANY DIRECTION TO THE PETITIONER IN THE COURSE OF DIRECTING
VEHICULAR TRAFFIC, BECAUSE OFFICER BYARS WAS NOT THEN DIRECTING ANY
SUCH TRAFFIC.  THERE WAS THUS NO EVIDENCE WHATEVER IN THE RECORD TO
SUPPORT THE PETITIONER'S CONVICTION UNDER THIS ORDINANCE AS IT HAS BEEN
AUTHORITATIVELY CONSTRUED BY THE ALABAMA COURT OF APPEALS.  IT WAS A
VIOLATION OF DUE PROCESS TO CONVICT AND PUNISH HIM WITHOUT EVIDENCE OF
HIS GUILT. 

FOR THESE REASONS THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED
TO THE COURT OF APPEALS OF ALABAMA FOR PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  THIS WAS A TRIAL DE NOVO ON APPEAL FROM A JUDGMENT OF CONVICTION
IN THE RECORDER'S COURT OF THE CITY OF BIRMINGHAM. 

FN2  "COUNT ONE: 

"COMES THE CITY OF BIRMINGHAM, ALABAMA, A MUNICIPAL CORPORATION, AND
COMPLAINS THAT F. L. SHUTTLESWORTH, WITHIN TWELVE MONTHS BEFORE THE
BEGINNING OF THIS PROSECUTION AND WITHIN THE CITY OF BIRMINGHAM, OR THE
POLICE JURISDICTION THEREOF, DID STAND, LOITER OR WALK UPON A STREET OR
SIDEWALK WITHIN AND AMONG A GROUP OF OTHER PERSONS SO AS TO OBSTRUCT
FREE PASSAGE OVER, ON OR ALONG SAID STREET OR SIDEWALK AT, TO-WIT:  2ND
AVENUE, NORTH, AT 19TH STREET OR DID WHILE IN SAID GROUP STAND OR
LOITER UPON SAID STREET OR SIDEWALK AFTER HAVING BEEN REQUESTED BY A
POLICE OFFICER TO MOVE ON, CONTRARY TO AND IN VIOLATION OF SECTION 1142
OF THE GENERAL CITY CODE OF BIRMINGHAM OF 1944, AS AMENDED BY ORDINANCE
NUMBER 1436-F. 

"COUNT TWO: 

"COMES THE CITY OF BIRMINGHAM, ALABAMA, A MUNICIPAL CORPORATION, AND
COMPLAINS THAT F.L. SHUTTLESWORTH, WITHIN TWELVE MONTHS BEFORE THE
BEGINNING OF THIS PROSECUTION AND WITHIN THE CITY OF BIRMINGHAM, OR THE
POLICE JURISDICTION THEREOF, DID REFUSE TO COMPLY WITH A LAWFUL ORDER,
SIGNAL OR DIRECTION OF A POLICE OFFICER, CONTRARY TO AND IN VIOLATION
OF SECTION 1231 OF THE GENERAL CITY CODE OF THE CITY OF BIRMINGHAM." 

FN3  THE RECORD CONTAINS MANY REFERENCES TO A SO-CALLED "SELECTIVE
BUYING CAMPAIGN" IN WHICH BIRMINGHAM NEGROES WERE ENGAGED AT THAT
TIME.  THERE WAS NO SHOWING, HOWEVER, OF ANY CONNECTION BETWEEN THIS
CAMPAIGN AND THE PRESENCE OF THE PETITIONER AND HIS COMPANIONS OUTSIDE
THE DEPARTMENT STORE ON THE MORNING OF HIS ARREST. 

FN4  SEE NOTE 2, SUPRA. 

FN5  THORNHILL V. ALABAMA, 310 U.S. 88, 97; NAACP V. BUTTON, 371 U.S.
415, 433, 435; AMSTERDAM, NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN THE
SUPREME COURT, 109 U. PA. L. REV. 67, 75-81, 96-104 (1960).  CF. SMITH
V. CALIFORNIA, 361 U.S. 147, 151; BAGGETT V. BULLITT, 377 U.S. 360,
371. 

FN6  LOVELL V. CITY OF GRIFFIN, 303 U.S. 444, 451; KUNZ V. NEW YORK,
340 U.S. 290, 293; SCHNEIDER V. STATE, 308 U.S. 147, 163-164. 

FN7  THE PETITIONER'S TRIAL TOOK PLACE IN OCTOBER 1962.  THE ALABAMA
COURT OF APPEALS AFFIRMED THE JUDGMENT OF CONVICTION IN NOVEMBER 1963. 
THE MIDDLEBROOKS CASE WAS DECIDED IN OCTOBER 1964.  42 ALA. APP. 525,
170 SO. 2D 424.  THE MIDDLEBROOKS CONSTRUCTION OF THE ORDINANCE WAS
ADUMBRATED IN SMITH V. CITY OF BIRMINGHAM, DECIDED THE SAME DAY.  42
ALA. APP.  467, 168 SO. 2D 35. 

FN8  CF. SHELTON V. CITY OF BIRMINGHAM, 42 ALA. APP. 371, 165 SO. 2D
912, AFFIRMING THE CONVICTION OF A DEFENDANT WHO REFUSED TO OBEY AN
OFFICER'S DIRECTION TO GET OUT OF THE MIDDLE OF A STREET WHICH HAD BEEN
CLOSED TO PRIVATE VEHICLES AND IN WHICH "POLICE CARS AND FIRE ENGINES
WERE BEING USED TO MOVE AND QUIET THE CROWD."    FN9  PATROLMAN BYARS
TESTIFIED THAT ON THE MORNING IN QUESTION HE WAS A "UTILITY OFFICER,"
AND THAT AS SUCH HE WAS "IN CHARGE OF THE DIRECTION AND MOVEMENT OF ALL
TRAFFIC AT 3RD AVENUE AND 19TH STREET AND FOUR BLOCKS IN AN EAST, WEST,
NORTH AND SOUTH DIRECTION."  HE CONCEDED THAT HE WAS "NOT REGULARLY
PLACED" AT THE INTERSECTION WHERE THE ARREST OCCURRED, AND THAT HE HAD
"NOTHING TO DO WITH THE OTHER OFFICERS WHO WERE ALSO THERE."    FN10
THE RECORD SHOWS THAT THE OFFICER DIRECTING VEHICULAR TRAFFIC AT THE
INTERSECTION OF 2D AVE. AND 19TH ST. AT THE TIME OF THE PETITIONER'S
ARREST WAS OFFICER HALLMAN.  HIS RELEVANT TESTIMONY WAS AS FOLLOWS:

"Q.  NOW, YOU OBSERVE ON THESE CORNERS FROM YOUR POSITION HERE WHEN
YOU POLICE THAT CORNER, DO YOU NOT? 

"A.  I TRY TO. 

"Q.  HAD YOU SEEN THESE PEOPLE OVER THERE BLOCKING TRAFFIC BEFORE YOU
SAW OFFICER BYARS? 

"A.  I SAW HIM STANDING OVER THERE TALKING TO THEM. 

"Q.  DID YOU SEE THEM BEFORE HE WAS TALKING TO THEM? 

"A.  I SAW THEM OVER THERE.  I DIDN'T PAY ANY PARTICULAR ATTENTION TO
THEM. 

"Q.  DID YOU GET THE IMPRESSION THEY WERE WAITING FOR THE LIGHT TO
CHANGE? 

"A.  I COULDN'T ANSWER THAT BECAUSE I DON'T KNOW WHAT THEY HAD ON
THEIR MIND. 

"Q.  YOU FORMED NO IMPRESSION WHEN YOU FIRST SAW THEM? 

"A.  NO. 

"Q.  YOU TOOK NO NOTE OF THEM WHEN YOU FIRST SAW THEM, IS THAT
RIGHT? 

"A.  JUST SAW THEM STANDING OVER THERE. 

"Q.  THE ONLY TIME YOU MADE NOTE OF THEM STANDING OVER THERE WAS WHEN
YOU SAW THE POLICEMAN ASSISTING YOU TALKING TO THEM? 

"A.  WHEN I SAW HIM OVER THERE TALKING TO THEM.  HE WASN'T ASSISTING
ME. 

"Q.  HE WASN'T ASSISTING YOU WITH YOUR CORNER. 

"A.  NO." 

MR. JUSTICE DOUGLAS, CONCURRING. 

I JOIN PART II OF THE COURT'S OPINION BUT WOULD REVERSE ON COUNT I
FOR A SOMEWHAT DIFFERENT REASON.  THE POLICE POWER OF A MUNICIPALITY IS
CERTAINLY AMPLE TO DEAL WITH ALL TRAFFIC CONDITIONS ON THE STREETS -
PEDESTRIAN AS WELL AS VEHICULAR.  SO THERE COULD BE NO DOUBT THAT IF
PETITIONER WERE ONE MEMBER OF A GROUP OBSTRUCTING A SIDEWALK HE COULD,
PURSUANT TO A NARROWLY DRAWN ORDINANCE, BE ASKED TO MOVE ON AND, IF HE
REFUSED, BE ARRESTED FOR THE OBSTRUCTION.  BUT IN THIS CASE THE
TESTIMONY IS THAT THE GROUP DISSOLVED WHEN WARNED BY THE POLICE, SAVE
ONLY THE PETITIONER.*  AT THE TIME OF THE ARREST PETITIONER WAS NO
LONGER BLOCKING TRAFFIC.  SECTION 1142 OF THE BIRMINGHAM GENERAL CODE
MAKES IT UNLAWFUL TO "OBSTRUCT THE FREE PASSAGE OF PERSONS ON  ...
SIDEWALKS."  THE ORDINANCE, AS IT HAS BEEN CONSTRUED BY THE ALABAMA
COURT OF APPEALS, HAS BEEN HELD TO APPLY ONLY TO ONE WHO CONTINUES TO
BLOCK A SIDEWALK AFTER A POLICE WARNING TO MOVE.  MIDDLEBROOKS V. CITY
OF BIRMINGHAM, 42 ALA. APP. 525, 527, 170 SO. 2D 424, 426.  THERE WAS
NO SUCH "OBSTRUCTING" HERE, UNLESS PETITIONER'S PRESENCE ON THE STREET
WAS ITSELF ENOUGH.  FAILURE TO OBEY SUCH AN ORDER, WHEN ONE IS NOT
ACTING UNLAWFULLY, CERTAINLY CANNOT BE MADE A CRIME IN A COUNTRY WHERE
FREEDOM OF LOCOMOTION (EDWARDS V. CALIFORNIA, 314 U.S. 160) IS
HONORED.  FOR THESE REASONS I THINK THERE WAS NO EVIDENCE, WITHIN THE
MEANING OF THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199, TO SUSTAIN THE
CONVICTION AND HENCE I WOULD REVERSE THE JUDGMENT OUTRIGHT. 

*SEE APPENDIX HERETO. 

                APPENDIX TO OPINION OF MR. JUSTICE

                                  DOUGLAS. 

OFFICER ROBERT L. BYARS, WHO MADE THE ARREST, TESTIFIED ON CROSS
EXAMINATION AS FOLLOWS: 

"Q.  HOW MANY PERSONS WERE STANDING THERE AT THAT INTERSECTION WHEN
YOU FIRST OBSERVED IT? 

"A.  SOME TEN OR TWELVE. 

"Q.  WERE THEY ALL COLORED OR WHITE PEOPLE, OR ALTOGETHER OR WHAT? 

"A.  I DIDN'T PAY PARTICULAR NOTICE TO THE RACE. 

"Q.  YOU STOOD THERE A MINUTE OR MINUTE AND A HALF AND THEN YOU WENT
OUT AND CLEARED THE INTERSECTION? 

"A.  I WENT OUT AND ASKED THEM TO MOVE. 

"Q.  WAS THAT GREAT BIG CROWD OUT THERE AND THE INTERSECTION
COMPLETELY BLOCKED?  YOU TESTIFIED YOU HAD HALF OF THE SOUTH-NORTH
CROSS WALK FREE, THAT THE DEFENDANTS WERE NOT BLOCKING HALF OF THE
SOUTH-NORTH CROSS WALK, THEY WERE STANDING IN THE WEST PART OF THE
CROSS WALK WHERE THEY SHOULD BE STANDING ASSUMING THEY WERE GOING
SOUTH, THEY WERE NOT BLOCKING THE EAST-WEST CROSS WALK AT ALL?  NOW,
WHERE WAS THE CROWD THAT WAS BLOCKING? 

"A.  THEY WERE ALL STANDING ON THE SIDEWALK. 

"Q.  YOU MEAN THE CROWD? 

"A.  THAT'S RIGHT, INCLUDING THE DEFENDANT. 

"Q.  NOW, YOU PLACED THE DEFENDANTS WHERE YOU HAVE THE X. NOW, THE
CROWD IS WHAT WE ARE INTERESTED IN NOW, THE CROWD THEY WERE BLOCKING,
WHERE WERE THEY? 

"MR. WALKER:  WE OBJECT.  THERE HAS BEEN NO TESTIMONY THAT THERE WAS
A CROWD THAT WAS BEING BLOCKED; THE TESTIMONY IS THERE WAS A CROWD
BLOCKING THE MOVING TRAFFIC. 

"Q.  ARE THESE DEFENDANTS CHARGED THEN WITH ASSEMBLING THE CROWD OR
SOMETHING?  WHO WERE THEY BLOCKING?  WHERE WERE THE PERSONS THEY WERE
BLOCKING, THESE TWO DEFENDANTS HERE? 

"A.  THEY WERE BLOCKING HALF OF THE SIDEWALK CAUSING THE PEOPLE
WALKING EAST TO GO INTO THE STREET AROUND THEM. 

"Q.  THE PEOPLE WALKING EAST ALONG WHAT STREET? 

"A.  ALONG 2ND AVENUE. 

"Q.  ALONG THIS WAY (INDICATING)? 

"Q.  THAT'S RIGHT. 

"Q.  THE PEOPLE WALKING ALONG 2ND AVENUE FROM WEST TO EAST HAD TO GO
AROUND THEM? 

"A.  THAT IS TRUE. 

"Q.  WHILE THEY STOOD THERE? 

"A.  THAT IS TRUE. 

"Q.  AND YOU OBSERVED THAT FOR A MINUTE OR MINUTE AND A HALF? 

"A.  THAT IS TRUE. 

"Q.  AND THEN YOU WENT OUT AND YOU REQUIRED THEM TO MOVE ON.  DID YOU
SPEAK DIRECTLY TO THE DEFENDANT SHUTTLESWORTH? 

"A.  I SPOKE TO THE PEOPLE STANDING ASSEMBLED THERE. 

"Q.  THEY ALL MOVED BUT HIM, IS THAT CORRECT? 

"A.  NOT ON THE FIRST REQUEST THEY DIDN'T ALL MOVE.  SOME BEGAN TO
MOVE. 

"Q.  WELL, ALL HAD MOVED BY THE TIME YOU MADE THE ARREST? 

"A.  EXCEPT SHUTTLESWORTH. 

"Q.  NOBODY WAS STANDING THERE BUT SHUTTLESWORTH? 

"A.  NOBODY WAS STANDING; EVERYBODY ELSE WAS IN MOTION EXCEPT THE
DEFENDANT SHUTTLESWORTH, WHO HAD NEVER MOVED. 

"Q.  WAS HE TALKING TO YOU DURING THIS TIME? 

"A.  HE MADE A STATEMENT TO ME ON TWO OCCASIONS WHEN I INFORMED HIM
TO MOVE ON ON THREE OCCASIONS. 

"Q.  DID HE ASK YOU WHERE YOU WANTED HIM TO MOVE? 

"A.  NO. 

"Q.  DID YOU TELL HIM WHERE TO MOVE? 

"A.  I DID NOT. 

"Q.  YOU DIDN'T ARREST ANYBODY BUT SHUTTLESWORTH? 

"A.  NOT AT THAT TIME."  (R. 27-28). 

OFFICER C. W. HALLMAN, WHO OBSERVED THE ABOVE AFTER HAVING BEEN
CALLED OVER BY OFFICER BYARS, TESTIFIED ON DIRECT EXAMINATION AS
FOLLOWS: 

"Q.  ABOUT HOW MANY WAS IN THE GROUP AT THAT TIME, IF YOU KNOW? 

"A.  I WOULD SAY FIVE OR SIX.  IT COULD HAVE BEEN MORE OR LESS. 

"Q.  WHAT HAPPENED TO THE GROUP THEN, IF ANYTHING? 

"A.  ALL OF THEM DISPERSED EXCEPT SHUTTLESWORTH. 

"Q.  WHAT HAPPENED AFTER THAT? 

"A.  OFFICER BYARS TOLD HIM HE WAS UNDER ARREST FOR BLOCKING THE
SIDEWALK AND PLACED HIM UNDER ARREST."  (R. 59-60.) 

MR. JUSTICE BRENNAN, CONCURRING. 

I JOIN THE COURT'S OPINION ON MY UNDERSTANDING THAT MIDDLEBROOKS V.
CITY OF BIRMINGHAM IS BEING READ AS HOLDING THAT SEC. 1142 APPLIES ONLY
WHEN A PERSON (A) STANDS, LOITERS OR WALKS ON A STREET OR SIDEWALK SO
AS TO OBSTRUCT FREE PASSAGE, (B) IS REQUESTED BY AN OFFICER TO MOVE ON,
AND (C) THEREAFTER CONTINUES TO BLOCK PASSAGE BY LOITERING OR STANDING
ON THE STREET.  IT IS ONLY THIS LIMITING CONSTRUCTION WHICH SAVES THE
STATUTE FROM THE CONSTITUTIONAL CHALLENGE THAT IT IS OVERLY BROAD. 
MOREOVER, BECAUSE THIS CONSTRUCTION DELIMITS THE STATUTE TO "THE SORT
OF 'HARD-CORE' CONDUCT THAT WOULD OBVIOUSLY BE PROHIBITED UNDER ANY
CONSTRUCTION," DOMBROWSKI V. PFISTER, 380 U.S. 479, 491-492, IT MAY BE
LEGITIMATELY APPLIED TO SUCH CONDUCT OCCURRING BEFORE THAT
CONSTRUCTION. 

MR. JUSTICE FORTAS, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

I AGREE THAT SHUTTLESWORTH'S CONVICTION MUST BE SET ASIDE.  BUT I AM
CONCERNED LEST THE OPINION OF THE COURT BE CONSIDERED AS INDICATING
THAT SHUTTLESWORTH CAN CONSTITUTIONALLY BE CONVICTED OF VIOLATING THE
GENERAL CODE OF THE CITY OF BIRMINGHAM, ALABAMA, ON THE FACTS HERE
PRESENTED.  ANY SUCH CONVICTION WOULD VIOLATE BASIC CONSTITUTIONAL
GUARANTIES.  I WOULD MAKE THIS CLEAR NOW. 

THE COURT'S OPINION DOES NOT CHALLENGE THE CONSTITUTIONALITY OF SEC.
1142 OF THE BIRMINGHAM CODE AS THAT SECTION WAS CONSTRUED BY THE
ALABAMA COURT OF APPEALS TWO YEARS AFTER SHUTTLESWORTH'S CONVICTION. 
THE OPINION MAY BE READ TO IMPLY THAT IF SHUTTLESWORTH IS NOW PUT TO
TRIAL FOR VIOLATION OF SEC. 1142, AS CONSTRUED, THE VICE OF THE PRESENT
CONVICTION MAY BE ELIMINATED.  I WOULD MAKE IT CLEAR THAT THE FEDERAL
CONSTITUTION FORBIDS A CONVICTION ON THE FACTS OF THIS RECORD,
REGARDLESS OF THE VALIDITY OF THE ORDINANCE INVOLVED. 

I AGREE THAT, AS CONSTRUED BY ALABAMA TWO YEARS AFTER SHUTTLESWORTH
WAS CONVICTED, SEC. 1142 CANNOT BE HELD UNCONSTITUTIONAL ON ITS FACE. 
I AGREE THAT IF THERE WERE A RATIONAL BASIS FOR CHARGING SHUTTLESWORTH
WITH VIOLATING THE SECTION AS SO CONSTRUED, HE COULD BE RETRIED IF
ALABAMA SHOULD CHOOSE SO VIGOROUSLY TO PROTECT THE SIDEWALKS OF
BIRMINGHAM.  CIVIL RIGHTS LEADERS, LIKE ALL OTHER PERSONS, ARE SUBJECT
TO THE LAW AND MUST COMPLY WITH IT.  THEIR CALLING CARRIES NO
IMMUNITY.  THEIR CAUSE CONFERS NO PRIVILEGE TO BREAK OR DISREGARD THE
LAW. 

BUT THERE IS HERE NO POSSIBLE BASIS FOR A CONVICTION WHICH WOULD BE
VALID UNDER THE FEDERAL CONSTITUTION.  THE ACCUSED PROVISION WOULD BE
UNCONSTITUTIONAL AS APPLIED TO SHUTTLESWORTH'S FACTS EVEN AFTER THE
PLASTIC SURGERY BY ALABAMA'S COURT OF APPEALS IN 1964.  MIDDLEBROOKS V.
CITY OF BIRMINGHAM, 42 ALA. APP. 525, 170 SO. 2D 424.  (FN1)  A
REVISION OF THE FORMULA DOES NOT AND CANNOT CHANGE THE FACTS; AND THOSE
FACTS DO NOT PERMIT THE STATE TO JAIL SHUTTLESWORTH FOR HIS ACTIONS ON
APRIL 4, 1962. 

TAKING THE PROSECUTION'S VERSION OF THE FACTS, IT APPEARS THAT
SHUTTLESWORTH WAS ONE OF A GROUP OF 8, 10 OR 12 (FN2) PERSONS WHO AT
10:30 A.M. ON APRIL 4, 1962, WERE ACCOSTED BY A PATROLMAN AFTER THEY
HAD STOOD FOR A MINUTE OR A MINUTE AND A HALF AT 19TH STREET AND 2D
AVENUE IN BIRMINGHAM.  THEY OCCUPIED ONE-HALF OF THE SIDEWALK.  THEY
WERE CONVERSING AMONG THEMSELVES.  THERE IS NO SUGGESTION OF DISORDER
OR OF DELIBERATE OBSTRUCTION OF PEDESTRIAN TRAFFIC.  AFTER THE FIRST
COMMAND BY THE PATROLMAN, THE GROUP COMMENCED TO MOVE AWAY.  THE
OFFICER REPEATED HIS COMMAND, AND SHUTTLESWORTH SAID, "YOU MEAN TO SAY
WE CAN'T STAND HERE ON THE SIDEWALK?"  AFTER THE THIRD COMMAND,
SHUTTLESWORTH SAID, "DO YOU MEAN TO TELL ME WE CAN'T STAND HERE IN
FRONT OF THIS STORE?"  THE OFFICER THEN TOLD SHUTTLESWORTH HE WAS UNDER
ARREST.  SHUTTLESWORTH SAID HE WOULD GO INTO THE STORE.  THE OFFICER
FOLLOWED AND ARRESTED HIM.  THERE WAS NO RESISTANCE.  BY THIS TIME
EVERYBODY IN THE GROUP EXCEPT SHUTTLESWORTH HAD MOVED AWAY.  THE ENTIRE
INCIDENT TOOK LESS THAN FOUR AND ONE-HALF MINUTES, FROM ARRIVAL OF
SHUTTLESWORTH AND HIS FRIENDS AT THE CORNER TO HIS ARREST. 

FOR THIS, SHUTTLESWORTH WAS TRIED, CONVICTED AND SENTENCED TO SPEND
HALF A YEAR AT HARD LABOR AND TO PAY A FINE OF $100. 

IN MY VIEW, THERE IS NOTHING IN THE FACTS WHICH JUSTIFIED AN ARREST
AND CONVICTION.  PRIOR TO THE OFFICER'S COMMAND THE SITUATION WAS THAT
A SMALL GROUP OF PEOPLE OCCUPYING ONE-HALF OF THE SIDEWALK WERE ENGAGED
IN ORDERLY CONVERSATION.  PROMPTLY UPON THE OFFICER'S COMMAND, THE
GROUP BEGAN TO DISPERSE AND ONLY SHUTTLESWORTH REMAINED.  HE, ALONE,
CANNOT BE HELD TO HAVE BLOCKED THE SIDEWALK.  HIS RHETORICAL QUESTIONS
MAY HAVE IRRITATED THE PATROLMAN; BUT A POLICEMAN'S LOT IS NOT A HAPPY
ONE - AND CERTAINLY, IN CONTEXT, SHUTTLESWORTH'S QUESTIONS DID NOT RISE
TO THE MAGNITUDE OF AN OFFENSE AGAINST THE LAWS OF ALABAMA.  IF ONE
WERE TO CONFINE ONESELF TO THE SURFACE VERSION OF THE FACTS, A GENERAL
ALARM FOR THE PEOPLE OF BIRMINGHAM WOULD BE IN ORDER.  THEIR USE OF THE
SIDEWALKS WOULD BE HAZARDOUS BEYOND MEASURE. 

BUT THIS, OF COURSE, IS FICTION.  IT IS FACADE FOR A NARROWER, BUT NO
LESS DISAGREEABLE, TRUTH.  ON APRIL 4, 1962, THE NEGROES OF BIRMINGHAM
WERE ENGAGED IN A "SELECTIVE BUYING CAMPAIGN" - AN ATTEMPTED BOYCOTT -
OF BIRMINGHAM'S STORES FOR THE PURPOSE OF PROTESTING DISCRIMINATION
AGAINST THEM.  SHUTTLESWORTH AND HIS COMPANIONS WERE NEGROES.  (FN3)
THEY WERE STANDING IN FRONT OF A DEPARTMENT STORE.  SHUTTLESWORTH, AS
AN OFFICER WHO PARTICIPATED IN THE ARREST TESTIFIED, WAS A "NOTORIOUS"
PERSON IN THE FIELD OF CIVIL RIGHTS IN BIRMINGHAM.  (FN4) 

IN MY VIEW THE NET EFFECT OF THE FACTS IN THIS CASE IS INESCAPABLE. 
SHUTTLESWORTH'S ARREST WAS AN INCIDENT IN THE TENSE RACIAL CONFLICT IN
BIRMINGHAM.  THIS MAY EXPLAIN THE ARREST, BUT IT ADDS NOTHING TO ITS
LAWFULNESS.  THERE IS NO BASIS IN THE FACTS AND CIRCUMSTANCES OF THE
CASE FOR CHARGING THAT SHUTTLESWORTH WAS "BLOCKING FREE PASSAGE" ON THE
SIDEWALK, MIDDLEBROOKS, SUPRA, AT 527, 170 SO. 2D, AT 426, OR THAT HE
CULPABLY REFUSED TO OBEY AN ORDER OF AN OFFICER TO MOVE ON, OR REMAINED
AFTER SUCH AN ORDER SO AS TO JUSTIFY ARREST, TRIAL OR CONVICTION.  ANY
ATTEMPT TO PUNISH SHUTTLESWORTH IN THESE CIRCUMSTANCES WOULD, IN MY
VIEW, VIOLATE THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION. 

FN1  AS THE COURT'S OPINION HEREIN POINTS OUT, IN MIDDLEBROOKS, THE
COURT OF APPEALS STATED THAT ITS NARROWED CONSTRUCTION OF THE ORDINANCE
HAD BEEN THE "RATIO DECIDENDI" OF SHUTTLESWORTH, DECIDED A YEAR
EARLIER.  BUT THERE IS NO INDICATION OF THIS IN SHUTTLESWORTH ITSELF. 

FN2  OFFICER RENSHAW TESTIFIED THERE WERE 8, 10 OR 12 PEOPLE IN THE
GROUP (R. 40).  OFFICER BYARS TESTIFIED TO 10 OR 12 (R. 17).    FN3
TESTIMONY OF OFFICER RENSHAW (R. 49).  OFFICER BYARS TESTIFIED THAT HE
DIDN'T KNOW WHAT COLOR THEY WERE (R. 27, 36). 

FN4  THE PRINCIPAL ARRESTING OFFICER TESTIFIED THAT HE DID NOT
RECOGNIZE SHUTTLESWORTH, BUT HE HAD SEEN HIS PICTURE ON TELEVISION.  HE
HAD HEARD OF HIM, HAD READ THAT HE HAD FREQUENTLY BEEN ARRESTED, AND
THAT HE HAD BEEN IN THE BIRMINGHAM JAIL.  SHUTTLESWORTH'S WALK ON APRIL
4, 1962, STARTED DURING A RECESS IN A FEDERAL COURT CIVIL RIGHTS TRIAL
IN WHICH HE WAS INVOLVED.  THE TRIAL HAD BEEN PUBLICIZED. 
..END :











BRADLEY V. SCHOOL BOARD 382 U.S. 103 


NO. 415.  DECIDED NOVEMBER 15, 1965.* - CERTIORARI GRANTED; 345 F.2D
310; 345 F.2D 325, JUDGMENTS VACATED AND REMANDED. 

*TOGETHER WITH NO. 416, GILLIAM ET AL. V. SCHOOL BOARD OF CITY OF
HOPEWELL ET AL., ALSO ON PETITION FOR WRIT OF CERTIORARI TO THE SAME
COURT. 


THE LOWER COURT APPROVED SCHOOL DESEGREGATION PLANS FOR HOPEWELL AND
RICHMOND, VIRGINIA, WITHOUT FULL INQUIRY INTO PETITIONERS' CONTENTION
THAT FACULTY ALLOCATION ON AN ALLEGED RACIAL BASIS INVALIDATED THE
PLANS.  HELD:  PETITIONERS WERE ENTITLED TO FULL EVIDENTIARY HEARINGS
ON THEIR CONTENTION, AND SUCH HEARINGS SHOULD BE HELD WITHOUT DELAY. 

BRADLEY ET AL. V. SCHOOL BOARD OF CITY OF RICHMOND ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI TO THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT ARE GRANTED FOR THE PURPOSE OF DECIDING WHETHER IT IS
PROPER TO APPROVE SCHOOL DESEGREGATION PLANS WITHOUT CONSIDERING, AT A
FULL EVIDENTIARY HEARING, THE IMPACT ON THOSE PLANS OF FACULTY
ALLOCATION ON AN ALLEGED RACIAL BASIS.  WE HOLD THAT THE COURT OF
APPEALS ERRED IN BOTH THESE CASES IN THIS REGARD, 345 F.2D 310, 319
321; 345 F.2D 325, 328. 

PLANS FOR DESEGREGATING THE PUBLIC SCHOOL SYSTEMS OF HOPEWELL AND
RICHMOND, VIRGINIA, WERE APPROVED BY THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA WITHOUT FULL INQUIRY INTO PETITIONERS' CONTENTION
THAT FACULTY ALLOCATION ON AN ALLEGED RACIAL BASIS RENDERED THE PLANS
INADEQUATE UNDER THE PRINCIPLES OF BROWN V. BOARD OF EDUCATION, 347
U.S. 483.  THE COURT OF APPEALS, WHILE RECOGNIZING THE STANDING OF
PETITIONERS, AS PARENTS AND PUPILS, TO RAISE THIS CONTENTION, DECLINED
TO DECIDE ITS MERITS BECAUSE NO EVIDENTIARY HEARINGS HAD BEEN HELD ON
THIS ISSUE.  BUT INSTEAD OF REMANDING THE CASES FOR SUCH HEARINGS PRIOR
TO FINAL APPROVAL OF THE PLANS, THE COURT OF APPEALS HELD THAT "WHETHER
AND WHEN SUCH AN INQUIRY IS TO BE HAD ARE MATTERS WITH RESPECT TO WHICH
THE DISTRICT COURT  ...  HAS A LARGE MEASURE OF DISCRETION," AND IT
REASONED AS FOLLOWS: 

"WHEN DIRECT MEASURES ARE EMPLOYED TO ELIMINATE ALL DIRECT
DISCRIMINATION IN THE ASSIGNMENT OF PUPILS, A DISTRICT COURT MAY DEFER
INQUIRY AS TO THE APPROPRIATENESS OF SUPPLEMENTAL MEASURES UNTIL THE
EFFECT AND THE SUFFICIENCY OF THE DIRECT ONES MAY BE DETERMINED.  THE
POSSIBLE RELATION OF A REASSIGNMENT OF TEACHERS TO PROTECTION OF THE
CONSTITUTIONAL RIGHTS OF PUPILS NEED NOT BE DETERMINED WHEN IT IS
SPECULATIVE.  WHEN ALL DIRECT DISCRIMINATION IN THE ASSIGNMENT OF
PUPILS HAS BEEN ELIMINATED, ASSIGNMENT OF TEACHERS MAY BE EXPECTED TO
FOLLOW THE RACIAL PATTERNS ESTABLISHED IN THE SCHOOLS.  AN EARLIER
JUDICIAL REQUIREMENT OF GENERAL REASSIGNMENT OF ALL TEACHING AND
ADMINISTRATIVE PERSONNEL NEED NOT BE CONSIDERED UNTIL THE POSSIBLE
DETRIMENTAL EFFECTS OF SUCH AN ORDER UPON THE ADMINISTRATION OF THE
SCHOOLS AND THE EFFICIENCY OF THEIR STAFFS CAN BE APPRAISED ALONG WITH
THE NEED FOR SUCH AN ORDER IN AID OF PROTECTION OF THE CONSTITUTIONAL
RIGHTS OF PUPILS."  345 F.2D, AT 320-321. 

WE HOLD THAT PETITIONERS WERE ENTITLED TO SUCH FULL EVIDENTIARY
HEARINGS UPON THEIR CONTENTION.  THERE IS NO MERIT TO THE SUGGESTION
THAT THE RELATION BETWEEN FACULTY ALLOCATION ON AN ALLEGED RACIAL BASIS
AND THE ADEQUACY OF THE DESEGREGATION PLANS IS ENTIRELY SPECULATIVE. 
NOR CAN WE PERCEIVE ANY REASON FOR POSTPONING THESE HEARINGS:  EACH
PLAN HAD BEEN IN OPERATION FOR AT LEAST ONE ACADEMIC YEAR; THESE SUITS
HAD BEEN PENDING FOR SEVERAL YEARS; AND MORE THAN A DECADE HAS PASSED
SINCE WE DIRECTED DESEGREGATION OF PUBLIC SCHOOL FACILITIES "WITH ALL
DELIBERATE SPEED," BROWN V. BOARD OF EDUCATION, 349 U.S. 294, 301. 
DELAYS IN DESEGREGATING SCHOOL SYSTEMS ARE NO LONGER TOLERABLE.  GOSS
V. BOARD OF EDUCATION, 373 U.S. 683, 689; CALHOUN V. LATIMER, 377 U.S.
263, 264-265; SEE WATSON V. CITY OF MEMPHIS, 373 U.S. 526. 

THE JUDGMENTS OF THE COURT OF APPEALS ARE VACATED AND THE CASES ARE
REMANDED TO THE DISTRICT COURT FOR EVIDENTIARY HEARINGS CONSISTENT WITH
THIS OPINION.  WE, OF COURSE, EXPRESS NO VIEWS OF THE MERITS OF THE
DESEGREGATION PLANS SUBMITTED, NOR IS FURTHER JUDICIAL REVIEW PRECLUDED
IN THESE CASES FOLLOWING THE HEARINGS.  VACATED AND REMANDED. 
..END :

















HIGHWAY EXPRESS V. UNITED STATES 382 U.S. 106 


NO. 447.  DECIDED NOVEMBER 15, 1965.  - 241 F. SUPP. 290, AFFIRMED. 


ALABAMA HIGHWAY EXPRESS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















BURNHAM V. PENTECOST 382 U.S. 106 


NO. 494.  DECIDED NOVEMBER 15, 1965.  - APPEAL DISMISSED. 


BURNHAM VAN SERVICE ET AL. V. PENTECOST ET AL. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















MICHIGAN BELL TELEPHONE CO. V. DETROIT 382 U.S. 107 


NO. 497.  DECIDED NOVEMBER 15, 1965.* - 374 MICH. 543, 132 N.W.2D 660,
APPEALS DISMISSED AND CERTIORARI DENIED. 

*TOGETHER WITH NO. 498, DETROIT EDISON CO. V. CITY OF DETROIT, ALSO
ON APPEAL FROM THE SAME COURT. 


MICHIGAN BELL TELEPHONE CO. V. CITY OF DETROIT. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEALS ARE DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEALS WERE
TAKEN AS PETITIONS FOR WRITS OF CERTIORARI, CERTIORARI IS DENIED. 
..END :













FERNANDEZ V. BABARE 382 U.S. 107 


NO. 610, MISC.  DECIDED NOVEMBER 15, 1965.  - APPEAL DISMISSED. 


FERNANDEZ V. BABARE ET UX. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :



















ADELMAN V. MINNESOTA RIVER DISTRICT 382 U.S. 108 


NO. 512.  DECIDED NOVEMBER 15, 1965.  - 271 MINN. 216, 135 N.W.2D 670,
APPEAL DISMISSED AND CERTIORARI DENIED. 


ADELMAN ET AL. V. LOWER MINNESOTA RIVER WATERSHED DISTRICT. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WILSON V. COMMISSIONER 382 U.S. 108 


NO. 520.  DECIDED NOVEMBER 15, 1965.  - 340 F.2D 609, APPEAL DISMISSED
AND CERTIORARI DENIED. 


WILSON V. COMMISSIONER OF INTERNAL REVENUE. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















HAINSWORTH V. MARTIN 382 U.S. 109 


NO. 477.  DECIDED NOVEMBER 15, 1965. 


JUDGMENT OF COURT OF CIVIL APPEALS OF TEXAS, THIRD SUPREME JUDICIAL
DISTRICT, 386 S.W.2D 202, VACATED AND REMANDED TO THAT COURT. 

HAINSWORTH V. MARTIN, SECRETARY OF STATE OF TEXAS, ET AL. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THIS CAUSE HAVING BECOME MOOT IN THE LIGHT OF THE ENACTMENT OF THE
TEXAS APPORTIONMENT ACT OF 1965, THE JUDGMENT OF THE COURT OF CIVIL
APPEALS, THIRD SUPREME JUDICIAL DISTRICT OF TEXAS, IS VACATED, AND THE
CAUSE IS REMANDED FOR SUCH PROCEEDINGS AS BY THAT COURT MAY BE DEEMED
APPROPRIATE. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART WOULD DISMISS THE APPEAL
FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





ROSENBLATT V. AMERICAN CYANAMID CO. 382 U.S. 110 


NO. 501.  DECIDED NOVEMBER 15, 1965.  - APPEAL DISMISSED. 


ROSENBLATT V. AMERICAN CYANAMID CO. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















FEDERAL TRADE COMMISSION V. MARY CARTER PAINT CO. 382 U.S. 46 


NO. 15.  ARGUED OCTOBER 21, 1965.  - DECIDED NOVEMBER 8, 1965.  - 333
F.2D 654, REVERSED AND REMANDED. 


RESPONDENT PAINT COMPANY HAD A PRACTICE OF ADVERTISING THAT FOR EVERY
CAN OF PAINT PURCHASED THE BUYER WOULD BE GIVEN A "FREE" CAN OF EQUAL
QUALITY AND QUANTITY.  THE FEDERAL TRADE COMMISSION (FTC) ORDERED THE
PAINT COMPANY TO CEASE AND DESIST FROM THE PRACTICE AS BEING DECEPTIVE
UNDER SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT SINCE THE PAINT
COMPANY HAD NO HISTORY OF SELLING SINGLE CANS OF PAINT; IT HAD BEEN
MARKETING TWO CANS; AND HAD MISREPRESENTED BY ALLOCATING TO ONE CAN
WHAT WAS IN FACT THE PRICE OF TWO CANS.  THE COURT OF APPEALS SET ASIDE
THE FTC'S ORDER.  HELD:  THERE WAS SUBSTANTIAL EVIDENCE IN THE RECORD
TO SUPPORT THE FINDING OF THE FTC; ITS CONCLUSION THAT THE PRACTICE WAS
DECEPTIVE WAS NOT ARBITRARY AND MUST BE SUSTAINED.  PP. 46-49. 

FEDERAL TRADE COMMISSION V. MARY CARTER PAINT CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT MARY CARTER PAINT COMPANY (FN1) MANUFACTURES AND SELLS
PAINT AND RELATED PRODUCTS.  THE FEDERAL TRADE COMMISSION ORDERED
RESPONDENT TO CEASE AND DESIST FROM THE USE OF CERTAIN REPRESENTATIONS
FOUND BY THE COMMISSION TO BE DECEPTIVE AND IN VIOLATION OF SEC. 5 OF
THE FEDERAL TRADE COMMISSION ACT, 38 STAT. 719, AS AMENDED, 52 STAT.
111, 15 U.S.C. SEC. 45 (1964 ED.).  60 F.T.C. 1830, 1845.  THE
REPRESENTATIONS APPEARED IN ADVERTISEMENTS WHICH STATED IN VARIOUS WAYS
THAT FOR EVERY CAN OF RESPONDENT'S PAINT PURCHASED BY A BUYER, THE
RESPONDENT WOULD GIVE THE BUYER A "FREE" CAN OF EQUAL QUALITY AND
QUANTITY.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT SET ASIDE THE
COMMISSION'S ORDER.  333 F.2D 654.  WE GRANTED CERTIORARI, 379 U.S.
957.  WE REVERSE. 

ALTHOUGH THERE IS SOME AMBIGUITY IN THE COMMISSION'S OPINION, WE
CANNOT SAY THAT ITS HOLDING CONSTITUTED A DEPARTURE FROM COMMISSION
POLICY REGARDING THE USE OF THE COMMERCIALLY EXPLOITABLE WORD "FREE." 
INITIAL EFFORTS TO DEFINE THE TERM IN DECISIONS (FN2) WERE FOLLOWED BY
"GUIDES AGAINST DECEPTIVE PRICING."  (FN3)  THESE INFORMED BUSINESSMEN
THAT THEY MIGHT ADVERTISE AN ARTICLE AS "FREE," EVEN THOUGH PURCHASE OF
ANOTHER ARTICLE WAS REQUIRED, SO LONG AS THE TERMS OF THE OFFER WERE
CLEARLY STATED, THE PRICE OF THE ARTICLE REQUIRED TO BE PURCHASED WAS
NOT INCREASED, AND ITS QUALITY AND QUANTITY WERE NOT DIMINISHED.  WITH
SPECIFIC REFERENCE TO TWO-FOR-THE-PRICE-OF-ONE OFFERS, THE GUIDES
REQUIRED THAT EITHER THE SALES PRICE FOR THE TWO BE "THE ADVERTISER'S
USUAL AND CUSTOMARY RETAIL PRICE FOR THE SINGLE ARTICLE IN THE RECENT,
REGULAR COURSE OF HIS BUSINESS," OR WHERE THE ADVERTISER HAS NOT
PREVIOUSLY SOLD THE ARTICLE, THE PRICE FOR TWO BE THE "USUAL AND
CUSTOMARY" PRICE FOR ONE IN THE RELEVANT TRADE AREAS.  THESE, OF
COURSE, WERE GUIDES, NOT FIXED RULES AS SUCH, AND WERE DESIGNED TO
INFORM BUSINESSMEN OF THE FACTORS WHICH WOULD GUIDE COMMISSION
DECISION.  ALTHOUGH MARY CARTER SEEMS TO HAVE ATTEMPTED TO TAILOR ITS
OFFER TO COME WITHIN THEIR TERMS, THE COMMISSION FOUND THAT IT FAILED;
THE OFFER COMPLIED IN APPEARANCE ONLY. 

THE GIST OF THE COMMISSION'S REASONING IS IN THE HEARING EXAMINER'S
FINDING, WHICH IT ADOPTED, THAT: 

"THE USUAL AND CUSTOMARY RETAIL PRICE OF EACH CAN OF MARY CARTER
PAINT WAS NOT, AND IS NOT NOW, THE PRICE DESIGNATED IN THE
ADVERTISEMENT ($6.98) BUT WAS, AND IS NOW, SUBSTANTIALLY LESS THAN SUCH
PRICE.  THE SECOND CAN OF PAINT WAS NOT, AND IS NOT NOW, 'FREE,' THAT
IS, WAS NOT, AND IS NOT NOW, GIVEN AS A GIFT OR GRATUITY.  THE OFFER
IS, ON THE CONTRARY, AN OFFER OF TWO CANS OF PAINT FOR THE PRICE
ADVERTISED AS OR PURPORTING TO BE THE LIST PRICE OR CUSTOMARY AND USUAL
PRICE OF ONE CAN."  60 F.T.C., AT 1844. 

IN SUM, THE COMMISSION FOUND THAT MARY CARTER HAD NO HISTORY OF
SELLING SINGLE CANS OF PAINT; IT WAS MARKETING TWINS, AND IN ALLOCATING
WHAT IS IN FACT THE PRICE OF TWO CANS TO ONE CAN, YET CALLING ONE
"FREE," MARY CARTER MISREPRESENTED.  IT IS TRUE THAT RESPONDENT WAS NOT
PERMITTED TO SHOW THAT THE QUALITY OF ITS PAINT MATCHED THOSE PAINTS
WHICH USUALLY AND CUSTOMARILY SELL IN THE $6.98 RANGE, OR THAT
PURCHASERS OF PAINT ESTIMATE QUALITY BY THE PRICE THEY ARE CHARGED.  IF
BOTH CLAIMS WERE ESTABLISHED, IT IS ARGUABLE THAT ANY DECEPTION WAS
LIMITED TO A REPRESENTATION THAT MARY CARTER HAS A USUAL AND CUSTOMARY
PRICE FOR SINGLE CANS OF PAINT, WHEN IT HAS NO SUCH PRICE.  HOWEVER, IT
IS NOT FOR COURTS TO SAY WHETHER THIS VIOLATES THE ACT.  "THE
COMMISSION IS OFTEN IN A BETTER POSITION THAN ARE COURTS TO DETERMINE
WHEN A PRACTICE IS 'DECEPTIVE' WITHIN THE MEANING OF THE ACT."  FEDERAL
TRADE COMM'N V. COLGATE-PALMOLIVE CO., 380 U.S. 374, 385.  THERE WAS
SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT THE COMMISSION'S FINDING;
ITS DETERMINATION THAT THE PRACTICE HERE WAS DECEPTIVE WAS NEITHER
ARBITRARY NOR CLEARLY WRONG.  THE COURT OF APPEALS SHOULD HAVE
SUSTAINED IT.  FEDERAL TRADE COMM'N V. COLGATE-PALMOLIVE CO., SUPRA;
CARTER PRODUCTS, INC. V. FEDERAL TRADE COMM'N, 323 F.2D 523, 528. 

THE COMMISSION ADVISES US IN ITS BRIEF THAT IT BELIEVES IT WOULD BE
APPROPRIATE HERE "TO REMAND THE CASE TO IT FOR CLARIFICATION OF ITS
ORDER."  THE JUDGMENT OF THE COURT OF APPEALS IS THEREFORE REVERSED AND
THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND TO THE
COMMISSION FOR CLARIFICATION OF ITS ORDER.  IT IS SO ORDERED. 

FN1  HEREINAFTER MARY CARTER OR RESPONDENT. 

FN2  BOOK-OF-THE-MONTH CLUB, INC., 48 F.T.C. 1297 (1952); WALTER J.
BLACK, INC., 50 F.T.C.  225 (1953); PURO CO., 50 F.T.C. 454 (1953);
BOOK-OF-THE-MONTH CLUB, INC., 50 F.T.C. 778 (1954); RAY S. KALWAJTYS,
52 F.T.C. 721, ENFORCED, 237 F.2D 654 (1956). 

FN3  GUIDES AGAINST DECEPTIVE PRICING, GUIDE V, ADOPTED OCTOBER 2,
1958, 23 FED. REG.  7965; SEE ALSO POLICY STATEMENT, DECEMBER 3, 1953,
4 CCH TRADE REG. REP. PARA. 40,210.  FOR THE CURRENT GUIDE, GUIDE IV,
EFFECTIVE JANUARY 8, 1964, SEE 29 FED. REG. 180. 

MR. JUSTICE HARLAN, DISSENTING. 

IN MY OPINION THE BASIS FOR THE COMMISSION'S ACTION IS TOO OPAQUE TO
JUSTIFY AN UPHOLDING OF ITS ORDER IN THIS CASE.  A SUMMARY DISCUSSION
OF THE FACTS AND COMMISSION PROCEEDINGS WILL SUFFICE TO SHOW WHY I
CANNOT SUBSCRIBE TO THE MAJORITY'S DISPOSITION. 

SINCE 1951 THE ENTERPRISE NOW KNOWN AS MARY CARTER PAINT COMPANY HAS
BEEN MANUFACTURING PAINT PRODUCTS FOR DIRECT DISTRIBUTION THROUGH ITS
OWN OUTLETS AND FRANCHISED DEALERS.  FOR MOST OR ALL OF THIS PERIOD,
ITS PRACTICE HAS BEEN TO ESTABLISH ITS PRICES ON A PER-CAN BASIS BUT TO
GIVE EACH CUSTOMER A SECOND CAN WITHOUT FURTHER CHARGE FOR EACH CAN
PURCHASED.  MARY CARTER'S ADVERTISEMENTS, WHILE DISCLOSING THAT THE
FIRST CAN OF EACH PAIR MUST BE BOUGHT AT THE LISTED PRICE, HAVE ALWAYS
DESCRIBED THE SECOND CAN AS "FREE"; TYPICAL SLOGANS ARE: "BUY ONE GET
ONE FREE" AND "EVERY SECOND CAN FREE."  IT IS THIS ADVERTISING WHICH
THE COMMISSION NOW CONDEMNS AS UNFAIR AND DECEPTIVE UNDER SEC. 5 OF THE
FEDERAL TRADE COMMISSION ACT, AS AMENDED, 52 STAT. 111, 15 U.S.C. SEC.
45 (1964 ED.). 

TO THE EXTENT THAT THE COMMISSION'S ORDER MAY REST ON THE PROPOSITION
THAT THE SECOND CAN IS NOT "FREE" BECAUSE ITS RECEIPT IS "TIED" TO THE
PURCHASE OF THE FIRST CAN, IT IS MANIFESTLY INCONSISTENT WITH THE RULES
GOVERNING USE OF THE WORD "FREE" MAINTAINED BY THE COMMISSION FOR OVER
A DECADE.  NO ONE SUGGESTS THAT THE ADDITIONAL CAN OF MARY CARTER PAINT
IS FREE IN THE SENSE THAT NO CONDITIONS ARE ATTACHED TO ITS RECEIPT,
BUT THE FTC FORSOOK THIS COMMERCIALLY UNREALISTIC DEFINITION IN 1953. 
IN THAT YEAR, FIRST BY ITS DECISION IN WALTER J. BLACK, INC., 50 F.T.C.
225, AND THEN A GENERAL POLICY STATEMENT, 4 CCH TRADE REG. REP.  PARA.
40,210, IT SANCTIONED USE OF THE WORD "FREE" TO DESCRIBE AN ITEM GIVEN
WITHOUT EXTRA CHARGE ON CONDITION OF ANOTHER PURCHASE SO LONG AS THE
CONDITION WAS PLAINLY STATED AND THE "TYING" PRODUCT WAS NOT INCREASED
IN PRICE FOR THE OCCASION OR DECREASED IN QUANTITY OR QUALITY.  THE FTC
PREFACED THESE RULES IN BLACK BY SAYING THAT "THE BUSINESSMEN OF THE
UNITED STATES ARE ENTITLED TO A CLEAR AND UNEQUIVOCAL ANSWER" AND IT
REPRESENTED THAT ITS NEW POSITION WOULD BE MAINTAINED UNTIL EITHER
CONGRESS OR THE COURTS DECIDED OTHERWISE.  50 F.T.C., AT 232, 235. 

THERE IS PRESENTLY NO CHARGE BY THE COMMISSION THAT MARY CARTER
FAILED TO COMPLY WITH THIS GENERAL STATEMENT WHICH CONTINUED IN FORCE
THROUGH THE PROCEEDINGS AND DECISION AFFECTING MARY CARTER.  RATHER,
FOR THE GREATER PERIOD OF ITS ADVERTISING OPERATIONS MARY CARTER COULD
PROPERLY CLAIM TO HAVE RELIED ON THE FTC'S OFFICIAL PRONOUNCEMENT WHILE
IT WAS ESTABLISHING ITS "EVERY SECOND CAN FREE" SLOGAN IN THE PUBLIC
MIND, AN INVESTMENT NOW SEEMINGLY LOST.  WITHOUT INFLEXIBILITY HOLDING
THE COMMISSION TO ITS PROMISE AND AVOWED POSITION, CERTAINLY SOLID
JUSTIFICATION SHOULD BE DEMANDED BEFORE THE COURTS AGREE THAT THIS
DEPARTURE IS NOT "ARBITRARY, CAPRICIOUS, OR AN ABUSE OF DISCRETION." 
ADMINISTRATIVE PROCEDURE ACT SEC. 10(E), 60 STAT. 243, 5 U.S.C. SEC.
1009(E)(1964 ED.). 

AT THE VERY LEAST THE COMMISSION SHOULD BE REQUIRED TO DEMONSTRATE
REAL DECEPTION AND PUBLIC INJURY IN A DECISION THAT ALLOWS THE COURTS
TO EVALUATE ITS REASONING AND BUSINESSMEN TO COMPLY WITH ASSURANCE WITH
ITS LATEST VIEWS; THESE STANDARDS ARE NOT MET BY THE FTC'S OPINION IN
THIS CASE.  THE DEPARTMENT OF JUSTICE SUGGESTS THAT THE FTC REGARDS THE
ADVERTISEMENTS AS IMPLYING THAT MARY CARTER REGULARLY SELLS ITS PAINT
FOR THE PRESENT PER-CAN PRICE WITHOUT GIVING AN EXTRA CAN FREE; (FN1)
FROM THIS PREMISE, IT MIGHT BE ARGUED, THE BUYER MAY THEN CONCLUDE THAT
EACH CAN OF MARY CARTER IS THE EQUAL OF SIMILARLY PRICED RIVALS WITH
WHOM IT HAS REGULARLY COMPETED ON EQUAL TERMS IN THE PAST, MAKING THE
PRESENT "FREE" CAN OFFER APPEAR AN EXCELLENT BARGAIN.  BUT THE
ADVERTISING IN THE PRESENT CASE DOES NOT REALLY SUGGEST THAT THE "FREE"
CAN IS A DEPARTURE FROM MARY CARTER'S USUAL PRICING POLICY.  CERTAINLY
NOTHING IN ANY OF THE PUBLICITY STATES THAT THE EXTRA CAN IS A "NEW"
BARGAIN OR ASSERTS THAT THE OPPORTUNITY MAY LAPSE IN THE NEAR FUTURE. 
TO THE CONTRARY, A NUMBER OF MARY CARTER ADVERTISEMENTS, NOT SEPARATELY
TREATED BY THE COMMISSION, AFFIRMATIVELY SUGGEST THAT THE EXTRA-CAN
OFFER HAS BEEN AND WILL CONTINUE TO BE THE SALES POLICY.  FAR FROM
TRYING TO IMPLY THAT ITS EXTRA-CAN OFFER REPRESENTS A TEMPORARY SAVING
FOR THE CUSTOMER, MARY CARTER HAS STRIVEN OVER A NUMBER OF YEARS TO
ASSOCIATE ITSELF IRREVOCABLY IN THE PUBLIC MIND WITH THE NOTION THAT
EVERY SECOND CAN IS FREE; THE CATCHPHRASE APPEARS IN ONE FORM OR
ANOTHER IN NEARLY ALL THE ADS BEFORE US AND IS EVEN IMPRINTED ON THE
TOP OF MARY CARTER PAINT CANS.  FINALLY, IT IS NOT WITHOUT IRONY THAT
THE COMMISSION, PRESUMABLY SEEKING THE PROTECT THE CONSUMER FROM ANY
UNFOUNDED ULTIMATE CONCLUSIONS THAT A CAN OF MARY CARTER IS AS GOOD AS
ITS HIGH-PRICED RIVALS, REJECTED AN OFFER OF PROOF FROM THE COMPANY
THAT A SINGLE CAN OF MARY CARTER IS SCIENTIFICALLY EQUAL OR SUPERIOR TO
THE LEADING PAINTS THAT SELL AT THE SAME PER-CAN PRICE LEVEL WITHOUT
GIVING BONUS CANS.  ACTUALLY, THERE IS NO SUGGESTION THAT ANY VOLUME OF
CONSUMER COMPLAINTS HAS BEEN RECEIVED, WHICH FURTHER DEEPENS THE
MYSTERY WHY THIS FRAIL PROCEEDING WAS EVER INITIATED.  (FN2) 

THE TEMPTATION TO GLOSS OVER THE ANALYTICAL FAILINGS OF THE RATIONALE
NOW ASSERTED FOR THE FTC BY RELYING ON AGENCY EXPERTISE MUST BE SHORT
LIVED IN THIS CASE.  ANY FINDINGS BY THE FTC AS TO WHAT THE PUBLIC MAY
CONCLUDE FROM PARTICULAR PHRASINGS ARE MOST INEXPLICIT, NO DISTINCTION
IS TAKEN BETWEEN THE VARIOUS ADS IN QUESTION, AND THE CONDUCT
PROSCRIBED IS NEVER SHARPLY IDENTIFIED.  SURELY THERE CAN BE NO RESORT
TO UNINVOKED EXPERTISE TO BUTTRESS AN UNARTICULATED THEORY. 

THE OPAQUENESS OF THE COMMISSION'S OPINION AND ORDER MAKES THEIR
APPROVAL DIFFICULT FOR YET OTHER REASONS.  THE BITE OF THE FTC DECISION
IS IN ITS ORDER; WHICH EVEN THE COMMISSION RECOGNIZES TO BE UNCLEAR;
HOW THE COMMISSION ORDER CAN BE UPHELD BEFORE THIS COURT IS TOLD WHAT
EXACTLY IT MEANS IS INDEED A PUZZLING QUESTION.  ADDITIONALLY, BY
FAILING TO SPELL OUT ITS RATIONALE THE FTC DECISION BREEDS THE
SUSPICION THAT IT IS NOT MERELY AD HOC (FN3) BUT QUITE POSSIBLY
IRRECONCILABLE WITH THE BLACK CASE SEEMINGLY REAFFIRMED BY THE
COMMISSION IN THIS VERY PROCEEDING.  IF THE COMMISSION IS ABLE TO WRITE
AN OPINION AND ORDER THAT CAN CURE THESE DEFECTS AND DRAW THE PLAIN
DISTINCTIONS NECESSARY TO ASSURE FAIR WARNING AND EQUAL TREATMENT FOR
OTHER ADVERTISERS, IT HAS NOT DONE SO YET. 

IN ADMINISTERING SEC. 5 IN THE CONTEST OF THE MANY ELUSIVE QUESTIONS
RAISED BY MODERN ADVERTISING, IT IS THE DUTY OF THE COMMISSION TO SPEAK
AND RULE CLEARLY SO THAT LAWABIDING BUSINESSMEN MAY KNOW WHERE THEY
STAND.  IN PROSCRIBING A PRACTICE UNCOMPLAINED OF BY THE PUBLIC,
EFFECTIVELY HARMLESS TO THE CONSUMER, ALLOWED BY THE COMMISSION'S LONG
ESTABLISHED POLICY STATEMENT, AND ONLY A HAIRBREADTH AWAY FROM
ADVERTISING PRACTICES THAT THE COMMISSION WILL CONTINUE TO PERMIT, I
THINK THAT THE COMMISSION IN THIS INSTANCE HAS FALLEN FAR SHORT OF WHAT
IS NECESSARY TO ENTITLE ITS ORDER TO ENFORCEMENT. 

FOR THESE REASONS I WOULD NOT DISTURB THE JUDGMENT OF THE COURT OF
APPEALS SETTING ASIDE THE COMMISSION'S ORDER. 

FN1  SUCH AN IMPLICATION MIGHT BE THOUGHT TO RUN COUNTER TO THE
SPIRIT OF THE NOW-SUPERSEDED GUIDE V, GUIDES AGAINST DECEPTIVE PRICING,
23 FED. REG. 7965 (1958), REQUIRING THAT THE SALES PRICE FOR TWO
ARTICLES IN A TWO-FOR-THE-PRICE-OF-ONE SALE MUST BE THE USUAL AND
CUSTOMARY PRICE FOR ONE.  MARY CARTER CAN, OF COURSE, REASONABLY CLAIM
TO HAVE COMPLIED WITH THE LETTER OF GUIDE V; ASSUMING THAT IT IS MAKING
A TWO-FOR-THE-PRICE-OF-ONE OFFER IN SUBSTANCE, THE ADVERTISED SUM IS
THE USUAL AND CUSTOMARY PRICE WHICH A PURCHASER HAS TO PAY IN ORDER TO
ACQUIRE A SINGLE CAN.  THERE IS EVIDENCE THAT ON AT LEAST A FEW
OCCASIONS CUSTOMERS TOOK ONLY ONE CAN, PAYING THE ADVERTISED PER-CAN
PRICE.  THERE IS NO EVIDENCE THAT MARY CARTER PERMITTED OR TOLERATED
SALES OF SINGLE CANS AT LESS THAN THE ADVERTISED PER-CAN PRICE.    FN2
I PUT ASIDE THE ARGUMENT THAT MIGHT ARISE FROM MARY CARTER'S PRACTICE
OF SELLING ITS PAINT IN BOTH GALLON AND QUART CANS.  CONCEIVABLY, ONE
MIGHT ORDER A GALLON AND RECEIVE AN UNNEEDED EXTRA GALLON, NEVER
REALIZING THAT TWO QUARTS PURCHASED PLUS TWO QUARTS FREE COULD BE HAD
FOR A SMALLER SUM.  THE FTC IGNORED AND THE GOVERNMENT EXPRESSLY
DISCLAIMS RELIANCE ON ANY SUCH ARGUMENT.  MOREOVER, MANY ADS SEEM TO
GIVE BOTH QUART AND GALLON PRICES. 

FN3  OF THE POST-1952 CASES CITED IN THE MAJORITY'S NOTE 2 (ANTE, P.
47), NONE IS AUTHORITY FOR CONDEMNING MARY CARTER'S ADVERTISING.  PURO
CO., 50 F.T.C. 454 (1953), AND RAY S. KALWAJTYS, 52 F.T.C. 721,
ENFORCED, 237 F.2D 654 (1956), BOTH INVOLVED PLAIN DECEPTIONS AS TO THE
USUAL PRICES OF THE ITEMS IN QUESTION.  BOOK-OF-THE-MONTH CLUB, INC.,
50 F.T.C. 778 (1954), AND THE BLACK CASE BOTH EXCULPATE SELLERS UNDER
THE RULE FINALLY APPEARING IN THE 1953 POLICY STATEMENT, WITH WHOSE
TERMS MARY CARTER HAS COMPLIED. 
..END :

















LEH V. GENERAL PETROLEUM CORP. 382 U.S. 54 


NO. 4.  ARGUED OCTOBER 11, 1965.  - DECIDED NOVEMBER 8, 1965.  - 330
F.2D 288, REVERSED. 


PETITIONERS' PRIVATE ANTITRUST SUIT AGAINST SEVEN GASOLINE PRODUCERS
WAS DISMISSED AS UNTIMELY AND NOT ENTITLED TO THE BENEFIT OF SEC. 5(B)
OF THE CLAYTON ACT, WHICH PROVIDES FOR TOLLING THE STATUTE OF
LIMITATIONS DURING THE PENDENCY OF AN ANTITRUST SUIT BROUGHT BY THE
UNITED STATES WHERE THE PRIVATE ACTION IS "BASED IN WHOLE OR IN PART ON
ANY MATTER COMPLAINED OF" IN THE GOVERNMENT SUIT.  THE COURT OF
APPEALS, UPHOLDING THE DISTRICT COURT, HELD THAT THE STATUTE OF
LIMITATIONS WAS NOT SUSPENDED BECAUSE THERE WERE DIFFERENT OVERT ACTS
CHARGED, AND DIFFERENT CONSPIRACIES, OCCURRING AT DIFFERENT TIMES
BETWEEN DIFFERENT PARTIES.  HELD: 

1.  PETITIONERS' ACTION HERE WAS BASED IN PART ON MATTERS COMPLAINED
OF IN THE GOVERNMENT SUIT AND THE SEC. 5(B) TOLLING PROVISION WAS
THEREFORE APPLICABLE.  MINNESOTA MINING & MFG. CO. V. NEW JERSEY WOOD
FINISHING CO., 381 U.S. 311, FOLLOWED.  PP. 58-65. 

(A)  THERE WAS SUBSTANTIAL IDENTITY OF PARTIES, SIX OF THE SEVEN
DEFENDANTS HERE BEING DEFENDANTS ALSO IN THE GOVERNMENT SUIT.  PP. 63
64. 

(B)  THOUGH THERE WAS NOT COMPLETE OVERLAP IN THE TIME PERIODS OF THE
TWO CONSPIRACIES ALLEGED, AND THOUGH THE GEOGRAPHIC AREAS COVERED WERE
NOT COTERMINOUS (THE SOUTHERN CALIFORNIA AREA INVOLVED IN THIS ACTION
BEING ONLY A PART OF THE PACIFIC STATES AREA WITH WHICH THE
GOVERNMENT'S SUIT WAS CONCERNED), THESE DISPARITIES ARE WITHOUT LEGAL
SIGNIFICANCE.  P. 64. 

2.  IN GENERAL, THE APPLICABILITY OF SEC. 5(B) IS DETERMINED BY A
COMPARISON OF THE TWO COMPLAINTS ON THEIR FACE, AND IS NOT BASED ON
PROOF OF THE ALLEGATIONS MADE THEREIN.  PP. 65-66. 

LEH ET AL. V. GENERAL PETROLEUM CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

ON SEPTEMBER 28, 1956, PETITIONERS, A PARTNERSHIP ENGAGED IN
WHOLESALE DISTRIBUTION OF REFINED PETROLEUM PRODUCTS AND ONE OF THE
PARTNERS, FILED IN THE SOUTHERN DISTRICT OF CALIFORNIA A TREBLE-DAMAGE
ACTION CHARGING VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT, 26
STAT. 209, AS AMENDED, 15 U.S.C. SECS. 1, 2 (1964 ED.), AGAINST SEVEN
COMPANIES ENGAGED IN PRODUCING, REFINING, AND MARKETING GASOLINE AND
OTHER HYDROCARBON SUBSTANCES IN INTERSTATE COMMERCE.  DEFENDANTS
CONTENDED THAT THE ACTION WAS BARRED BY THE CALIFORNIA ONE-YEAR STATUTE
OF LIMITATIONS APPLICABLE TO SUITS FOR STATUTORY PENALTIES OR
FORFEITURES, CAL.  CODE CIV. PROC. SEC. 340(1).  PLAINTIFFS CONCEDED
THAT THEIR CAUSE OF ACTION ACCRUED NO LATER THAN FEBRUARY 1954, AND
THAT THE FOUR-YEAR LIMITATION PROVISION ADDED TO THE CLAYTON ACT IN
1955, CLAYTON ACT SEC. 4B, 69 STAT. 283, 15 U.S.C. SEC. 15B (1964 ED.),
WAS NOT APPLICABLE TO A RIGHT OF ACTION ACCRUING IN 1954.  BUT
PLAINTIFFS CONTENDED THAT THE GOVERNING PROVISION WAS THE CALIFORNIA
THREE-YEAR STATUTE OF LIMITATIONS RESPECTING ACTIONS ON A STATUTORY
LIABILITY OTHER THAN A PENALTY, CAL. CODE CIV. PROC. SEC. 338(1), AND
THAT IN ANY EVENT THE RUNNING OF THE STATUTE OF LIMITATIONS WAS TOLLED
BY SEC. 5(B) OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15 U.S.C.
SEC. 16(B)(1964 ED.), BECAUSE OF A CIVIL ANTITRUST PROCEEDING THAT WAS
COMMENCED BY THE UNITED STATES IN 1950 AND WAS STILL PENDING WHEN
PLAINTIFFS FILED THEIR COMPLAINT.  SECTION 5(B) PROVIDES THAT DURING
THE PENDENCY OF A CIVIL OR CRIMINAL PROCEEDING INSTITUTED BY THE UNITED
STATES TO PREVENT, RESTRAIN, OR PUNISH VIOLATIONS OF ANY OF THE
ANTITRUST LAWS, THE RUNNING OF THE STATUTE OF LIMITATIONS SHALL BE
SUSPENDED IN RESPECT OF EVERY PRIVATE RIGHT OF ACTION "BASED IN WHOLE
OR IN PART ON ANY MATTER COMPLAINED OF IN SAID PROCEEDING."  (FN1)  THE
LOWER COURTS UPHELD THE DEFENSE OF LIMITATIONS AND DISMISSED THE
COMPLAINT, HOLDING THAT THE ONE-YEAR STATUTE GOVERNED AND THAT
PLAINTIFFS WERE NOT ENTITLED TO THE BENEFIT OF SEC. 5(B).  208 F. SUPP.
289 (D.C.S.D. CAL. 1962), AFF'D, 330 F.2D 288 (C.A. 9TH CIR. 1964).  WE
GRANTED CERTIORARI LIMITED TO THE QUESTION OF THE APPLICABILITY OF SEC.
5(B), 379 U.S. 877, BECAUSE OF AN APPARENT CONFLICT BETWEEN THIS CASE
AND UNION CARBIDE & CARBON CORP. V. NISLEY, 300 F.2D 561 (C.A. 10TH
CIR. 1962), DISMISSED UNDER RULE 60 SUB NOM. WADE V. UNION CARBIDE &
CARBON CORP., 371 U.S. 801, CONCERNING INTERPRETATION OF THE STATUTORY
REQUIREMENT THAT THE PRIVATE ACTION FOR WHICH THE BENEFIT OF THE
TOLLING PROVISION IS SOUGHT BE "BASED IN WHOLE OR IN PART ON ANY MATTER
COMPLAINED OF" IN THE GOVERNMENT PROCEEDING.  WE CONCLUDE THAT THE
LOWER COURTS MISAPPLIED SEC. 5(B), AND WE REVERSE THE JUDGMENT BELOW. 

PRIOR TO THE PRESENT CASE, THE COURT OF APPEALS FOR THE NINTH CIRCUIT
HAD DECLARED A RESTRICTIVE INTERPRETATION OF SEC. 5(B).  IN STEINER V.
20TH CENTURY-FOX FILM CORP., 232 F.2D 190 (1956), THAT COURT RULED THAT
THE SCOPE OF SEC. 5(B) WAS DETERMINED BY THE PRINCIPLES OF COLLATERAL
ESTOPPEL APPLICABLE UNDER SEC. 5(A) OF THE CLAYTON ACT, AS AMENDED, 69
STAT. 283, 15 U.S.C. SEC. 16(A)(1964 ED.), WHICH PROVIDES THAT A FINAL
JUDGMENT OR DECREE RENDERED IN A SUIT BY THE UNITED STATES AND HOLDING
A DEFENDANT IN VIOLATION OF THE ANTITRUST LAWS SHALL BE PRIMA FACIE
EVIDENCE IN A PRIVATE ANTITRUST ACTION AGAINST SUCH DEFENDANT "AS TO
ALL MATTERS RESPECTING WHICH SAID JUDGMENT OR DECREE WOULD BE AN
ESTOPPEL AS BETWEEN THE PARTIES THERETO."  (FN2)  ACCORDINGLY, THE
COURT DECLARED IN STEINER THAT "A GREATER SIMILARITY IS NEEDED THAN
THAT THE SAME CONSPIRACIES ARE ALLEGED.  THE SAME MEANS MUST BE USED TO
ACHIEVE THE SAME OBJECTIVES OF THE SAME CONSPIRACIES BY THE SAME
DEFENDANTS."  232 F.2D, AT 196.  IN THE PRESENT CASE THE COURT OF
APPEALS PURPORTED TO FOLLOW STEINER AND CONCLUDED THAT THE RUNNING OF
THE STATUTE OF LIMITATIONS WAS NOT SUSPENDED BECAUSE HERE, IN THE
COURT'S OPINION, "THERE WERE NOT ONLY DIFFERENT OVERT ACTS CHARGED, BUT
DIFFERENT CONSPIRACIES, OCCURRING AT DIFFERENT TIMES, BETWEEN DIFFERENT
PARTIES."  330 F.2D, AT 301; SEE ALSO 208 F. SUPP., AT 294-295. 
CONFLICTING WITH STEINER AND THE PRESENT CASE IS UNION CARBIDE & CARBON
CORP. V. NISLEY, SUPRA, WHICH HELD THAT THE EVIDENTIARY RULES OF
ESTOPPEL ARE NOT DETERMINATIVE AND THAT THE RUNNING OF THE PERIOD OF
LIMITATIONS IS TOLLED BY SEC. 5(B) IF THERE IS "SUBSTANTIAL IDENTITY OF
SUBJECT MATTER."  300 F.2D, AT 570. 

MINNESOTA MINING & MFG. CO. V. NEW JERSEY WOOD FINISHING CO., 381
U.S. 311, WHICH WAS DECIDED IN THE INTERIM BETWEEN THE GRANTING OF
CERTIORARI AND ORAL ARGUMENT IN THE PRESENT CASE, ESTABLISHES CERTAIN
BASIC PRINCIPLES FOR THE CONSTRUCTION OF SEC. 5(B) THAT ARE TO BE
FOLLOWED HERE.  THE QUESTIONS PRESENTED FOR DECISION IN MINNESOTA
MINING WERE WHETHER PROCEEDINGS BY THE FEDERAL TRADE COMMISSION UNDER
SEC. 7 OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15 U.S.C. SEC. 18
(1964 ED.), ACTIVATE SEC. 5(B) TO THE SAME EXTENT AS JUDICIAL
PROCEEDINGS AND, IF SO, WHETHER THE CLAIM OF NEW JERSEY WOOD, THE
PRIVATE PLAINTIFF, WAS BASED ON "ANY MATTER COMPLAINED OF" IN THE
COMMISSION ACTION.  ONE OF THE ARGUMENTS ADVANCED WITH RESPECT TO THE
FIRST QUESTION WAS THAT COMMISSION PROCEEDINGS DID NOT SUSPEND THE
RUNNING OF LIMITATIONS BECAUSE, IT WAS ASSERTED, ANY COMMISSION ORDER
THAT MIGHT ISSUE WOULD NOT BE ADMISSIBLE UNDER SEC. 5(A).  WE REJECTED
THIS CONTENTION THAT SEC. 5(A) AND SEC. 5(B) WERE COEXTENSIVE. 

"IT MAY BE  ...  THAT WHEN IT WAS ENACTED THE TOLLING PROVISION WAS A
LOGICAL BACKSTOP FOR THE PRIMA FACIE EVIDENCE CLAUSE OF SEC. 5(A).  BUT
EVEN THOUGH SEC. 5(B) COMPLEMENTS SEC. 5(A) IN THIS RESPECT BY
PERMITTING A LITIGANT TO AWAIT THE OUTCOME OF GOVERNMENT PROCEEDINGS
AND USE ANY JUDGMENT OR DECREE RENDERED THEREIN  ...  IT IS CERTAINLY
NOT RESTRICTED TO THAT EFFECT.  AS WE HAVE POINTED OUT, THE TEXTUAL
DISTINCTIONS AS WELL AS THE POLICY BASIS OF SEC. 5(B) INDICATE THAT IT
WAS TO SERVE A MORE COMPREHENSIVE FUNCTION IN THE CONGRESSIONAL SCHEME
OF THINGS.  THE GOVERNMENT'S INITIAL ACTION MAY AID THE PRIVATE
LITIGANT IN A NUMBER OF OTHER WAYS.  THE PLEADINGS, TRANSCRIPTS OF
TESTIMONY, EXHIBITS AND DOCUMENTS ARE AVAILABLE TO HIM IN MOST
INSTANCES  ...  .  MOREOVER, DIFFICULT QUESTIONS OF LAW MAY BE TESTED
AND DEFINITIVELY RESOLVED BEFORE THE PRIVATE LITIGANT ENTERS THE FRAY. 
THE GREATER RESOURCES AND EXPERTISE OF THE COMMISSION AND ITS STAFF
RENDER THE PRIVATE SUITOR A TREMENDOUS BENEFIT ASIDE FROM ANY VALUE HE
MAY DERIVE FROM A JUDGMENT OR DECREE.  INDEED, SO USEFUL IS THIS
SERVICE THAT GOVERNMENT PROCEEDINGS ARE RECOGNIZED AS A MAJOR SOURCE OF
EVIDENCE FOR PRIVATE PARTIES."  381 U.S., AT 319. 

MINNESOTA MINING SWEEPS AWAY MUCH OF THE FOUNDATION FOR THE STEINER
VIEW OF THE SCOPE OF SEC. 5(B).  THE PRIVATE PLAINTIFF IS NOT REQUIRED
TO ALLEGE THAT THE SAME MEANS WERE USED TO ACHIEVE THE SAME OBJECTIVES
OF THE SAME CONSPIRACIES BY THE SAME DEFENDANTS.  RATHER, EFFECT MUST
BE GIVEN TO THE BROAD TERMS OF THE STATUTE ITSELF - "BASED IN WHOLE OR
IN PART ON ANY MATTER COMPLAINED OF" - READ IN LIGHT OF
CONGRESS'"BELIEF THAT PRIVATE ANTITRUST LITIGATION IS ONE OF THE SUREST
WEAPONS FOR EFFECTIVE ENFORCEMENT OF THE ANTITRUST LAWS."  381 U.S., AT
318.  DOUBTLESSLY, CARE MUST BE EXERCISED TO INSURE THAT RELIANCE UPON
THE GOVERNMENT PROCEEDING IS NOT MERE SHAM AND THAT THE MATTERS
COMPLAINED OF IN THE GOVERNMENT SUIT BEAR A REAL RELATION TO THE
PRIVATE PLAINTIFF'S CLAIM FOR RELIEF.  BUT THE COURTS MUST NOT ALLOW A
LEGITIMATE CONCERN THAT INVOCATION OF SEC. 5(B) BE MADE IN GOOD FAITH
TO LEAD THEM INTO A NIGARDLY CONSTRUCTION OF THE STATUTORY LANGUAGE
HERE IN QUESTION.  WITH THOSE MATTERS IN MIND WE NOW TURN TO A
COMPARISON OF PLAINTIFFS' COMPLAINT WITH THE COMPLAINT IN THE
GOVERNMENT PROCEEDING ON WHICH PLAINTIFFS RELY, UNITED STATES V.
STANDARD OIL CO. OF CALIFORNIA, CIVIL NO. 11584-C, D.C.S.D. CAL.
(FN3) 

THE COMPLAINT OF THE UNITED STATES CHARGED THAT SEVEN PETROLEUM
COMPANIES AND THE CONSERVATION COMMITTEE OF CALIFORNIA OIL PRODUCERS
HAD CONSPIRED TOGETHER TO RESTRAIN AND TO MONOPOLIZE INTERSTATE
COMMERCE IN THE PACIFIC STATES AREA IN VIOLATION OF SECS. 1 AND 2 OF
THE SHERMAN ACT, BEGINNING IN OR ABOUT THE YEAR 1936, AND CONTINUING UP
TO AND INCLUDING THE DATE SUIT WAS FILED IN 1950.  THE COMPLAINT
DIVIDED THE CONSPIRACY INTO TWO PRINCIPAL BRANCHES:  (1) AGREEMENT BY
THE DEFENDANTS TO ELIMINATE COMPETITION AMONG THEMSELVES IN THE PACIFIC
STATES AREA AND (2) AGREEMENT BY THE DEFENDANTS TO UTILIZE THEIR
CONTROL OF THE PRODUCTION, TRANSPORTATION, REFINING, AND MARKETING OF
CRUDE OIL AND REFINED PETROLEUM PRODUCTS TO RESTRICT AND TO ELIMINATE
THE COMPETITION OF INDEPENDENT PRODUCERS, REFINERS AND MARKETERS IN THE
PACIFIC STATES AREA.  IN FURTHERANCE OF THE FIRST BRANCH OF THE
CONSPIRACY, THE COMPLAINT FURTHER CHARGED, DEFENDANTS HAD CONSPIRED TO
DO AND HAD ACTUALLY ACCOMPLISHED THE FOLLOWING THINGS, AMONG OTHERS:
SHARING WHOLESALE AND RETAIL MARKETS WITH EACH OTHER BY SELLING
GASOLINE AND OTHER REFINED PETROLEUM PRODUCTS AT IDENTICAL PRICES, THUS
CONFINING EFFECTIVE COMPETITION AMONG THEMSELVES TO THE ADVERTISING OF
BRAND NAMES AND TO THE OFFERING OF FREE SERVICES IN THEIR RETAIL
OUTLETS; FIXING AND MAINTAINING UNIFORM AND NONCEMPETITIVE PRICES FOR
THE SALE OF GASOLINE AND OTHER REFINED PETROLEUM PRODUCTS AT WHOLESALE
AND AT RETAIL; REFUSING TO SELL THEIR PETROLEUM PRODUCTS TO ANY
WHOLESALE OR RETAIL DISTRIBUTOR WHO FAILED OR REFUSED TO FOLLOW THE
PRICES FIXED BY THEM; AND REFUSING TO SELL THEIR PETROLEUM PRODUCTS TO
ANY WHOLESALE DISTRIBUTOR, JOBBER, OR RETAIL DEALER EXCEPT ON A "FULL
REQUIREMENTS" OR "EXCLUSIVE-DEALER" BASIS.  AMONG ACTS AND AGREEMENTS
CHARGED AS HAVING BEEN ACCOMPLISHED IN FURTHERANCE OF THE SECOND BRANCH
OF THE CONSPIRACY WERE THE FOLLOWING:  COERCING INDEPENDENT PRODUCERS
INTO LIMITING PRODUCTION OF CRUDE OIL THROUGH PRODUCTION QUOTAS
ESTABLISHED BY THE DEFENDANT CONSERVATION COMMITTEE; LIMITING THE
SUPPLY OF CRUDE OIL AVAILABLE TO INDEPENDENT REFINERS AND REFUSING TO
SELL CRUDE OIL TO SUCH REFINERS; ACQUIRING CONTROL OF INDEPENDENT
REFINERS; INDUCING INDEPENDENT REFINERS TO SHUT DOWN THEIR PRODUCTIVE
CAPACITY OR TO DISMANTLE THEIR REFINING FACILITIES IN RETURN FOR AN
AGREEMENT TO FURNISH SUCH INDEPENDENT REFINERS WITH THEIR FULL
REQUIREMENTS OF GASOLINE AND OTHER REFINED PETROLEUM PRODUCTS;
FORECLOSING INDEPENDENT WHOLESALE AND RETAIL MARKETS OTHERWISE
AVAILABLE TO THE INDEPENDENT REFINERS BY REQUIRING INDEPENDENT JOBBERS,
WHOLESALERS, AND RETAILERS TO HANDLE EXCLUSIVELY THE REFINED PETROLEUM
PRODUCTS OF DEFENDANTS. 

PLAINTIFFS' AMENDED COMPLAINT IN THE PRESENT CASE ALSO CHARGED A
CONSPIRACY TO VIOLATE SECS. 1 AND 2 OF THE SHERMAN ACT.  THE PERIOD OF
THE CONSPIRACY OF WHICH PLAINTIFFS COMPLAINED VARIED SOMEWHAT FROM THAT
CHARGED IN THE GOVERNMENT ACTION, PLAINTIFFS ALLEGING THAT THE
CONSPIRACY HEREIN COMMENCED IN OR ABOUT THE YEAR 1948 (THE YEAR IN
WHICH PLAINTIFFS COMMENCED BUSINESS) AND CONTINUED UNTIL THE DATE OF
THE FILING OF THE COMPLAINT IN 1956.  THE DEFENDANTS WERE THE SAME AS
THOSE IN THE GOVERNMENT PROCEEDING, EXCEPT THAT SHELL OIL COMPANY AND
THE CONSERVATION COMMITTEE OF CALIFORNIA OIL PRODUCERS WERE NAMED AS
DEFENDANTS IN THE GOVERNMENT SUIT AND WERE NOT DEFENDANTS HERE, AND
OLYMPIC OIL COMPANY WAS NAMED AS A DEFENDANT HERE AND WAS NOT A
DEFENDANT IN THE GOVERNMENT PROCEEDING.  (FN4)  THE COMPLAINT CHARGED
THAT DEFENDANTS HAD AGREED TO RESTRAIN AND TO MONOPOLIZE THE WHOLESALE
AND RETAIL DISTRIBUTION OF REFINED GASOLINE THROUGHOUT THE SOUTHERN
CALIFORNIA AREA BY EXCLUDING INDEPENDENT JOBBERS FROM SUCH DISTRIBUTION
AND BY ELIMINATING THE JOBBERS' CUSTOMERS, I.E., RETAIL OUTLETS, AND
PREVENTING THOSE CUSTOMERS FROM COMPETING WITH RETAIL OUTLETS OWNED AND
OPERATED BY DEFENDANTS.  IN PARTICULAR, DEFENDANTS WERE ALLEGED TO HAVE
ACCOMPLISHED THEIR UNLAWFUL PURPOSES BY THE FOLLOWING ACTS:
CONTROLLING THE SALE AND DISTRIBUTION OF REFINED GASOLINE IN THE
SOUTHERN CALIFORNIA AREA; DENYING INDEPENDENT JOBBERS ACCESS TO A
SOURCE OF SUPPLY OF REFINED GASOLINE; PREVENTING INDEPENDENT JOBBERS
FROM OBTAINING REFINED GASOLINE FROM OTHER SOURCES; PREVENTING THE
CUSTOMERS OF INDEPENDENT JOBBERS FROM OBTAINING GASOLINE WITH WHICH TO
COMPETE WITH RETAIL SERVICE STATIONS AND OUTLETS OPERATED OR CONTROLLED
BY DEFENDANTS; MAINTAINING FIXED, ARTIFICIAL, AND NONCOMPETITIVE PRICES
FOR THE WHOLESALE AND RETAIL SALE OF REFINED GASOLINE IN THE SOUTHERN
CALIFORNIA AREA AND FIXING THE PRICE AT WHICH GASOLINE WOULD BE SOLD,
IF AT ALL, TO INDEPENDENT DEALERS AND JOBBERS; AND GENERALLY
CONTROLLING THE SOURCES OF REFINED GASOLINE IN THE SOUTHERN CALIFORNIA
AREA AND PREVENTING AND PRECLUDING INDEPENDENT JOBBERS FROM OBTAINING A
SOURCE OF SUPPLY.  PLAINTIFFS CLAIMED INJURY TO THEIR INDEPENDENT
JOBBER BUSINESS THROUGH A LOSS OF PROFITS RESULTING FROM PRICE-FIXING
AND FROM THE DESTRUCTION OF THEIR BUSINESS BECAUSE OF THE TERMINATION
OF THEIR SOURCE OF SUPPLY.    THE LOWER COURTS FOUND THAT PLAINTIFFS'
COMPLAINT WAS NOT BASED IN WHOLE OR IN PART ON ANY MATTER COMPLAINED OF
IN THE GOVERNMENT PROCEEDING PRINCIPALLY BECAUSE OF THE DIFFERENCES IN
THE DEFENDANTS NAMED IN THE TWO SUITS AND IN THE PERIOD OF THE
CONSPIRACIES ALLEGED.  SEE 330 F.2D, AT 301; 208 F. SUPP., AT 294-295. 
WE CANNOT AGREE THAT THESE DIFFERENCES BAR RESORT TO THE TOLLING
PROVISION IN THIS CASE. 

HERE TOO WE MAY FIND GUIDANCE IN MINNESOTA MINING.  IN THAT CASE, THE
PLAINTIFF, A MANUFACTURER OF ELECTRICAL INSULATION MATERIALS, BROUGHT A
SUIT AGAINST MINNESOTA MINING AND MANUFACTURING COMPANY AND THE ESSEX
WIRE CORPORATION, THE COMPLAINT ALLEGING VIOLATIONS OF SEC. 7 OF THE
CLAYTON ACT AND SECS. 1 AND 2 OF THE SHERMAN ACT.  THE SUBSTANCE OF THE
COMPLAINT CONCERNED THE ACQUISITION BY MINNESOTA MINING FROM ESSEX OF
INSULATION AND WIRES, INC., WHICH THEREAFTER CEASED TO DISTRIBUTE
PLAINTIFF'S PRODUCTS, AND AN ALLEGED CONSPIRACY BETWEEN MINNESOTA
MINING AND ESSEX TO RESTRAIN TRADE IN ELECTRICAL INSULATION PRODUCTS. 
THE ACTION UPON WHICH PLAINTIFF RELIED AS SUSPENDING THE RUNNING OF
LIMITATIONS WAS A FEDERAL TRADE COMMISSION PROCEEDING UNDER SEC. 7
AGAINST MINNESOTA MINING BUT NOT AGAINST ESSEX.  ESSEX WAS NOT A PARTY
TO THE INTERLOCUTORY APPEAL IN THE PRIVATE ACTION AND NO CONTENTION WAS
MADE HERE THAT THE DIFFERENCE IN PARTIES PREVENTED TOLLING OF
LIMITATIONS AS TO MINNESOTA MINING.  MINNESOTA MINING DID ARGUE THAT
BECAUSE OF THE GREATER BURDEN OF PROOF UNDER THE SHERMAN ACT,
PLAINTIFF'S SHERMAN ACT CLAIMS COULD NOT BE HELD TO BE BASED IN PART ON
ANY MATTER COMPLAINED OF IN THE CLAYTON ACT PROCEEDING BEFORE THE
COMMISSION.  THIS COURT FOUND THAT "BOTH SUITS SET UP SUBSTANTIALLY THE
SAME CLAIMS," 381 U.S., AT 323, AND REJECTED MINNESOTA MINING'S
ARGUMENT. 

JUST AS IN MINNESOTA MINING THE DIFFERENCES BETWEEN SHERMAN ACT AND
CLAYTON ACT PROCEEDINGS WERE HELD NOT TO REQUIRE THE CONCLUSION THAT
THE PRIVATE ACTION UNDER THE SHERMAN ACT WAS NOT BASED IN PART ON ANY
MATTER COMPLAINED OF IN THE GOVERNMENT'S SEC. 7 SUIT, SO HERE WE CANNOT
CONCLUDE THAT A PRIVATE CLAIMANT MAY INVOKE SEC. 5(B) ONLY IF THE
CONSPIRACY OF WHICH HE COMPLAINS HAS THE SAME BREADTH AND SCOPE IN TIME
AND PARTICIPANTS AS THE CONSPIRACY DESCRIBED IN THE GOVERNMENT ACTION
ON WHICH HE RELIES.  HERE THERE IS SUBSTANTIAL IDENTITY OF PARTIES, SIX
OF THE SEVEN DEFENDANTS IN THIS CASE BEING DEFENDANTS IN THE GOVERNMENT
SUIT AS WELL.  IN SUITS OF THIS KIND, THE ABSENCE OF COMPLETE IDENTITY
OF DEFENDANTS MAY BE EXPLAINED ON SEVERAL GROUNDS UNRELATED TO THE
QUESTION OF WHETHER THE PRIVATE CLAIMANT'S SUIT IS BASED ON MATTERS OF
WHICH THE GOVERNMENT COMPLAINED.  IN THE INTERIM BETWEEN THE FILING OF
THE TWO ACTIONS IT MAY HAVE BECOME APPARENT THAT A PARTY NAMED AS A
DEFENDANT BY THE GOVERNMENT WAS IN FACT NOT A PARTY TO THE ANTITRUST
VIOLATIONS ALLEGED.  OR THE PRIVATE PLAINTIFF MAY PREFER TO LIMIT HIS
SUIT TO THE DEFENDANTS NAMED BY THE GOVERNMENT WHOSE ACTIVITIES
CONTRIBUTED MOST DIRECTLY TO THE INJURY OF WHICH HE COMPLAINS.  ON THE
OTHER HAND, SOME OF THE CONSPIRATORS WHOSE ACTIVITIES INJURED THE
PRIVATE CLAIMANT MAY HAVE BEEN TOO LOW IN THE CONSPIRACY TO BE SELECTED
AS NAMED DEFENDANTS OR CO-CONSPIRATORS IN THE GOVERNMENT'S NECESSARILY
BROADER NET.  THE OVERLAP IN THE TIME PERIODS OF THE TWO CONSPIRACIES
IS LESS COMPLETE, BUT THIS DISPARITY IS EQUALLY WITHOUT SIGNIFICANCE. 
THAT PLAINTIFFS ALLEGED A CONSPIRACY CORRESPONDING IN TIME TO THE
PERIOD DURING WHICH THEY WERE IN BUSINESS OBVIOUSLY DOES NOT MEAN THAT
THIS CONSPIRACY IS NOT BASED IN PART ON MATTERS COMPLAINED OF BY THE
GOVERNMENT.  NOR CAN THAT CONCLUSION BE DRAWN FROM THE FACT THAT
PLAINTIFFS FOCUS ON THE SOUTHERN CALIFORNIA AREA, WHICH IS ONLY A PART
OF THE PACIFIC STATES AREA WITH WHICH THE GOVERNMENT WAS CONCERNED. 

IT IS OBVIOUS FROM A COMPARISON OF THE TWO COMPLAINTS THAT
PLAINTIFFS' SUIT IS BASED IN PART ON MATTERS OF WHICH THE GOVERNMENT
COMPLAINED.  THE GOVERNMENT CHARGED THAT DEFENDANTS HAD CONSPIRED TO
ELIMINATE THE COMPETITION OF INDEPENDENT MARKETERS; PLAINTIFFS CHARGED
A CONSPIRACY TO ELIMINATE INDEPENDENT JOBBERS AND RETAILERS.  BOTH THE
PLAINTIFFS AND THE GOVERNMENT ALLEGED THAT DEFENDANTS HAD FIXED PRICES
AT WHOLESALE AND AT RETAIL.  THE GOVERNMENT ALLEGED THAT DEFENDANTS HAD
CONSPIRED TO ELIMINATE THE COMPETITION OF INDEPENDENT REFINERS BY
ACQUIRING SUCH REFINERS, LIMITING THE SUPPLY OF CRUDE OIL AVAILABLE TO
THEM, AND INDUCING THEM TO SHUT DOWN THEIR REFINING FACILITIES;
PLAINTIFFS COMPLAINED THAT DEFENDANTS HAD DENIED THEM A SOURCE OF
SUPPLY AND PREVENTED THEM FROM OBTAINING GASOLINE FROM OTHER SOURCES. 
TO REQUIRE MORE DETAILED DUPLICATION OF CLAIMS WOULD BE TO RESURRECT
THE COLLATERAL ESTOPPEL APPROACH DECLARED IN STEINER AND REJECTED BY
THIS COURT IN MINNESOTA MINING. 

DEFENDANTS CONTEND, HOWEVER, THAT DURING THE EXTENSIVE DISCOVERY
PROCEEDINGS THAT PRECEDED THE RULING ON THE MOTION TO DISMISS,
PLAINTIFFS MADE CERTAIN CONCESSIONS ESTABLISHING THAT, WHATEVER THE
COMPLAINT MAY ALLEGE, PLAINTIFFS' CLAIM IN FACT IS NOT BASED AT ALL ON
ANY MATTER COMPLAINED OF BY THE GOVERNMENT IN STANDARD OIL. 
PLAINTIFFS' REAL CLAIM, DEFENDANTS SAY, IS THAT THEY HAD AN ARRANGEMENT
WITH OLYMPIC REFINING COMPANY UNDER WHICH THEY WERE TO BE SUPPLIED WITH
GASOLINE AS LONG AS OLYMPIC WAS IN TURN SUPPLIED BY DEFENDANT GENERAL
PETROLEUM CORPORATION, THAT DEFENDANT STANDARD OIL COMPANY OF
CALIFORNIA REPLACED GENERAL PETROLEUM CORPORATION AS OLYMPIC'S SUPPLIER
IN FEBRUARY 1954, AND THAT PLAINTIFFS' SUPPLY WAS THEREBY TERMINATED. 
THE ATTORNEY FOR PLAINTIFFS STATED IN A HEARING BEFORE THE TRIAL COURT
THAT GENERAL PETROLEUM CORPORATION HAD THE ABSOLUTE RIGHT TO TERMINATE
ITS SUPPLY TO OLYMPIC AT ANY TIME AND THAT IF GENERAL HAD IN THIS CASE
DONE SO UNILATERALLY PLAINTIFFS WOULD NOT BE IN COURT.  BUT PLAINTIFFS
CONTENDED THAT DEFENDANTS CONSPIRED TOGETHER TO EFFECT THE TERMINATION
OF GENERAL'S SUPPLIER RELATIONSHIP WITH OLYMPIC.  DEFENDANTS ARGUE THAT
THIS CONSPIRACY TO TERMINATE A PARTICULAR SUPPLY CONTRACT IS FAR
REMOVED FROM THE MATTERS WITH WHICH THE GOVERNMENT COMPLAINT WAS
CONCERNED. 

IN GENERAL, CONSIDERATION OF THE APPLICABILITY OF SEC. 5(B) MUST BE
LIMITED TO A COMPARISON OF THE TWO COMPLAINTS ON THEIR FACE.  OBVIOUSLY
SUSPENSION OF THE RUNNING OF THE STATUTE OF LIMITATIONS PENDING
RESOLUTION OF THE GOVERNMENT ACTION MAY NOT BE MADE TO TURN ON WHETHER
THE UNITED STATES IS SUCCESSFUL IN PROVING THE ALLEGATIONS OF ITS
COMPLAINT.  MINNESOTA MINING & MFG. CO. V. NEW JERSEY WOOD FINISHING
CO., 381 U.S. 311, 316.  EQUALLY, THE AVAILABILITY OF SEC. 5(B) TO THE
PRIVATE CLAIMANT MAY NOT BE MADE DEPENDENT ON HIS ABILITY TO PROVE HIS
CASE, HOWEVER FATAL FAILURE MAY PROVE TO HIS HOPES OF SUCCESS ON THE
MERITS. 

MOREOVER, DEFENDANTS' ARGUMENT CONTAINS A BASIC FLAW IN THAT IT DOES
NOT TAKE ACCOUNT OF ALL THAT PLAINTIFFS' COUNSEL SAID.  THE
RELATIONSHIP BETWEEN PLAINTIFFS AND GENERAL WAS ONE OF
SUBDISTRIBUTORSHIP, AND THERE WERE ACCORDINGLY TWO LEVELS IN THE CHAIN
OF DISTRIBUTION BETWEEN GENERAL AND THE ULTIMATE RETAIL OUTLET. 
PLAINTIFFS CLAIMED, COUNSEL SAID, THAT PRESSURE WAS EXERTED TO
TERMINATE THE RELATIONSHIP BETWEEN GENERAL AND OLYMPIC, AND THEREBY
BETWEEN OLYMPIC AND PLAINTIFFS, AS THE RESULT OF AN INDUSTRY COMMITMENT
TO DO AWAY WITH SUBDISTRIBUTORSHIP OPERATIONS "BECAUSE THE SUB
DISTRIBUTORSHIP COULD NOT BE CONTROLLED.  THE GASOLINE COULD BE
CONTROLLED, OBVIOUSLY, WHEN GENERAL PETROLEUM SOLD IT DIRECTLY AT
RETAIL.  THE GASOLINE COULD BE CONTROLLED IF YOU HAD A GOOD COMPANY AS
OPPOSED TO A BAD COMPANY, WHICH WAS ACTING AS A DISTRIBUTOR.  BUT THE
GASOLINE COULD NOT BE CONTROLLED WHEN IT WENT TO THE SUB
DISTRIBUTORSHIP LEVEL."  CLEARLY THIS IS A CLAIM THAT IN ORDER TO
OBTAIN AND TO MAINTAIN CONTROL OF DISTRIBUTION AND RETAIL MARKETING,
INCLUDING THE CONTROL AND FIXING OF UNIFORM WHOLESALE AND RETAIL PRICES
OF WHICH THE GOVERNMENT ACTION COMPLAINED, DEFENDANTS AGREED TO TIGHTEN
CONTROL OF THE CHAIN OF DISTRIBUTION THROUGH ELIMINATION OF INDEPENDENT
JOBBERS ACTING AS SUBDISTRIBUTORS.  COUNSEL'S STATEMENTS SIMPLY FILLED
OUT THE DETAILS OF THE GENERAL ALLEGATIONS OF THE COMPLAINT. 

AS WE HAVE CONCLUDED THAT THE RUNNING OF THE STATUTE OF LIMITATIONS
WAS SUSPENDED, THE JUDGMENT MUST BE REVERSED. 

FN1  SECTION 5(B), 15 U.S.C. SEC. 16(B), PROVIDES: 

"(B)  WHENEVER ANY CIVIL OR CRIMINAL PROCEEDING IS INSTITUTED BY THE
UNITED STATES TO PREVENT, RESTRAIN, OR PUNISH VIOLATIONS OF ANY OF THE
ANTITRUST LAWS, BUT NOT INCLUDING AN ACTION UNDER SECTION 15A OF THIS
TITLE, THE RUNNING OF THE STATUTE OF LIMITATIONS IN RESPECT OF EVERY
PRIVATE RIGHT OF ACTION ARISING UNDER SAID LAWS AND BASED IN WHOLE OR
IN PART ON ANY MATTER COMPLAINED OF IN SAID PROCEEDING SHALL BE
SUSPENDED DURING THE PENDENCY THEREOF AND FOR ONE YEAR THEREAFTER:
PROVIDED, HOWEVER, THAT WHENEVER THE RUNNING OF THE STATUTE OF
LIMITATIONS IN RESPECT OF A CAUSE OF ACTION ARISING UNDER SECTION 15 OF
THIS TITLE IS SUSPENDED HEREUNDER, ANY ACTION TO ENFORCE SUCH CAUSE OF
ACTION SHALL BE FOREVER BARRED UNLESS COMMENCED EITHER WITHIN THE
PERIOD OF SUSPENSION OR WITHIN FOUR YEARS AFTER THE CAUSE OF ACTION
ACCRUED." 

FN2  SECTION 5(A), 15 U.S.C. SEC. 16(A), PROVIDES: 

"(A)  A FINAL JUDGMENT OR DECREE HERETOFORE OR HEREAFTER RENDERED IN
ANY CIVIL OR CRIMINAL PROCEEDING BROUGHT BY OR ON BEHALF OF THE UNITED
STATES UNDER THE ANTITRUST LAWS TO THE EFFECT THAT A DEFENDANT HAS
VIOLATED SAID LAWS SHALL BE PRIMA FACIE EVIDENCE AGAINST SUCH DEFENDANT
IN ANY ACTION OR PROCEEDING BROUGHT BY ANY OTHER PARTY AGAINST SUCH
DEFENDANT UNDER SAID LAWS OR BY THE UNITED STATES UNDER SECTION 15A OF
THIS TITLE, AS TO ALL MATTERS RESPECTING WHICH SAID JUDGMENT OR DECREE
WOULD BE AN ESTOPPEL AS BETWEEN THE PARTIES THERETO:  PROVIDED, THAT
THIS SECTION SHALL NOT APPLY TO CONSENT JUDGMENTS OR DECREES ENTERED
BEFORE ANY TESTIMONY HAS BEEN TAKEN OR TO JUDGMENTS OR DECREES ENTERED
IN ACTIONS UNDER SECTION 15A OF THIS TITLE." 

SEE GENERALLY EMICH MOTORS CORP. V. GENERAL MOTORS CORP., 340 U.S.
558. 

FN3  THE CASE HAS SINCE BEEN TERMINATED BY CONSENT JUDGMENTS ENTERED
INTO BY ALL DEFENDANTS EXCEPT THE CONSERVATION COMMITTEE OF CALIFORNIA
OIL PRODUCERS AND TEXACO, INC., AS TO EACH OF WHICH THE CASE WAS
DISMISSED.  SEE 1958 CCH TRADE CASES, PARA. 69,212; 1959 CCH TRADE
CASES, PARA. 69,240; 1959 CCH TRADE CASES, PARA. 69,399. 

FN4  OLYMPIC WAS DISMISSED FROM THE CASE PRIOR TO THE RULING ON
DEFENDANTS' STATUTE OF LIMITATIONS DEFENSE. 

MR. JUSTICE HARLAN AND MR. JUSTICE FORTAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :








ANDREWS VAN LINES V. UNITED STATES 382 U.S. 67 


NO. 438.  DECIDED NOVEMBER 8, 1965.  - 240 F. SUPP. 763, AFFIRMED. 


ANDREWS VAN LINES, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEBRASKA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE STEWART IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :















MCGEE V. CROUSE 382 U.S. 67 


NO. 550, MISC.  DECIDED NOVEMBER 8, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MCGEE V. CROUSE, WARDEN. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















RICHMOND TELEVISION CORP V. UNITED STATES 382 U.S. 68 


NO. 420.  DECIDED NOVEMBER 8, 1965.  - CERTIORARI GRANTED; 345 F.2D 901,
VACATED AND REMANDED. 


RICHMOND TELEVISION CORP. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  IN THE LIGHT OF THE
REPRESENTATIONS OF THE SOLICITOR GENERAL, AND AN INDEPENDENT
EXAMINATION OF THE RECORD, WE BELIEVE THAT THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT WAS MISTAKEN IN ITS VIEW THAT THE PETITIONER'S
AMORTIZATION CLAIMS FOR THE TAXABLE YEARS 1956 AND 1957 WERE NOT
PROPERLY BEFORE IT.  ALTHOUGH THE RECORD IS NOT FREE FROM AMBIGUITY, WE
TAKE THE COURT OF APPEALS TO HAVE BASED ITS DECISION ON THE GROUND THAT
THE PETITIONER'S AMORTIZATION CLAIMS DERIVED SOLELY FROM NET OPERATING
LOSS DEDUCTIONS CARRIED FORWARD FROM PRIOR YEARS, AND THAT NO
ADDITIONAL AMORTIZATION DEDUCTIONS FOR 1956 AND 1957 WERE SOUGHT. 
SINCE WE FIND THAT THE PETITIONER ADEQUATELY PRESENTED ITS AMORTIZATION
CLAIMS FOR 1956 AND 1957, WE VACATE THE JUDGMENT OF THE COURT OF
APPEALS AND REMAND THE CASE TO THAT COURT FOR THE CONSIDERATION OF
THOSE CLAIMS, WITHOUT INTIMATION OF ANY KIND AS TO THEIR MERIT. 
..END :




MILLAN-GARCIA V. IMMIGRATION SERVICE 382 U.S. 69 


NO. 369, MISC.  DECIDED NOVEMBER 8, 1965.  - CERTIORARI GRANTED; 343
F.2D 825, VACATED AND REMANDED. 


MILLAN-GARCIA V. IMMIGRATION AND NATURALIZATION SERVICE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS UPON EXAMINATION OF THE ENTIRE
RECORD AND IN LIGHT OF THE REPRESENTATIONS OF THE SOLICITOR GENERAL
THAT THE PETITIONER WILL BE AFFORDED AN OPPORTUNITY TO APPLY FOR
CITIZENSHIP AND THAT THERE WILL BE NO DEPORTATION PROCEEDINGS UNTIL
SUCH DETERMINATION. 
..END :











BURNETTE V. DAVIS 382 U.S. 42 


NO. 241.  DECIDED OCTOBER 25, 1965.* - 245 F. SUPP. 241, AFFIRMED. 

*TOGETHER WITH NO. 424, THORNTON ET AL. V. DAVIS ET AL., ALSO ON
APPEAL FROM THE SAME COURT. 


BURNETTE ET AL. V. DAVIS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :












RATLEY V. CROUSE 382 U.S. 42 


NO. 551, MISC.  DECIDED OCTOBER 25, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


RATLEY V. CROUSE, WARDEN. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SERVICE TRUCKING CO. V. UNITED STATES 382 U.S. 43 


NO. 422.  DECIDED OCTOBER 25, 1965.  - 239 F. SUPP. 519, AFFIRMED. 


SERVICE TRUCKING CO., INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















KELLER V. CALIFORNIA 382 U.S. 43 


NO. 522, MISC.  DECIDED OCTOBER 25, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


KELLER V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















MORTON SALT CO. V. UNITED STATES 382 U.S. 44 


NO. 275.  DECIDED OCTOBER 25, 1965.* - AFFIRMED. 

*TOGETHER WITH NO. 276, DIAMOND CRYSTAL SALT CO. V. UNITED STATES,
ALSO ON APPEAL FROM THE SAME COURT. 


MORTON SALT CO. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED.  UNITED
STATES V. NATIONAL ASSOCIATION OF REAL ESTATE BOARDS, 339 U.S. 485,
493, 494; INTERSTATE CIRCUIT, INC. V. UNITED STATES, 306 U.S. 208, 221
227; AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 809-810;
THEATRE ENTERPRISES V. PARAMOUNT FILM DISTRIBUTING CORP., 346 U.S. 537,
540-542. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :







WETHERALL V. WEST VIRGINIA 382 U.S. 45 


NO. 428.  DECIDED OCTOBER 25, 1965.  - APPEAL DISMISSED. 


WETHERALL ET AL. V. STATE ROAD COMMISSION OF WEST VIRGINIA ET AL. 

APPEAL FROM THE CIRCUIT COURT OF WEST VIRGINIA, KANAWHA COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED.  PRICE,
DBA HOWARD PRICE & CO. V. STATE ROAD COMMISSION OF WEST VIRGINIA, ANTE,
P. 20. 
..END :

















GONDECK V. PAN AMERICAN AIRWAYS 382 U.S. 25 


NO. 919, OCTOBER TERM, 1961.  - CERTIORARI DENIED JUNE 11, 1962.  -
REHEARING DENIED OCTOBER 8, 1962.  - REHEARING AND CERTIORARI GRANTED
AND CASE DECIDED OCTOBER 18, 1965.  - REHEARING AND CERTIORARI GRANTED;
299 F.2D 74, REVERSED. 


PETITIONER'S HUSBAND WHILE OFF DUTY WAS KILLED OUTSIDE AN OVERSEAS
DEFENSE BASE WHERE HE WAS EMPLOYED.  THE DEPUTY COMMISSIONER, BUREAU OF
EMPLOYEES' COMPENSATION, DEPARTMENT OF LABOR, HAVING FOUND THAT AT THE
TIME OF THE ACCIDENT DECEDENT WAS SUBJECT TO EMERGENCY CALL AND WAS
RETURNING FROM REASONABLE RECREATION, AWARDED PETITIONER DEATH BENEFITS
UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT.  THE
DISTRICT COURT SET THE AWARD ASIDE AND THE COURT OF APPEALS AFFIRMED,
FINDING NO BENEFIT TO THE EMPLOYER IN DECEDENT'S TRIP AND NO RELATION
BETWEEN THE ACCIDENT AND HIS EMPLOYMENT.  THIS COURT DENIED CERTIORARI
IN THE OCTOBER 1961 TERM AND A PETITION FOR REHEARING THE NEXT TERM. 
THEREAFTER ANOTHER COURT OF APPEALS UPHELD AN AWARD ARISING FROM
ANOTHER EMPLOYEE'S DEATH IN THE SAME ACCIDENT, RELYING ON O'LEARY V.
BROWN-PACIFIC-MAXON, INC., 340 U.S. 504, WHICH HELD THAT THE DEPUTY
COMMISSIONER'S AWARD UNDER THE ACT MAY BE BASED ON HIS FINDING THAT THE
OBLIGATIONS AND CONDITIONS OF EMPLOYMENT CREATE THE "ZONE OF SPECIAL
DANGER" OUT OF WHICH THE INJURY OR DEATH AROSE.  THE COURT OF APPEALS
WHICH DECIDED THIS CASE EXPRESSED DOUBT IN A SUBSEQUENT CASE THAT ITS
DECISION BELOW CONFORMED TO BROWN-PACIFIC-MAXON, AND NOTED THAT BUT FOR
A PER CURIAM JUDGMENT (REVERSED LAST TERM IN O'KEEFFE V. SMITH,
HINCHMAN & GRYLLS ASSOCIATES, INC., 380 U.S. 359) THE GONDECK CASE
STOOD ALONE.  HELD:  SINCE THE COURT OF APPEALS MISINTERPRETED THE
STANDARD IN BROWN-PACIFIC-MAXON AND SINCE OF THOSE ELIGIBLE PETITIONER
ALONE HAD NOT RECEIVED COMPENSATION FOR THE ACCIDENT HERE INVOLVED, THE
"INTERESTS OF JUSTICE WOULD MAKE UNFAIR THE STRICT APPLICATION OF THE
COURT'S RULES" BY WHICH THE LITIGATION HERE WOULD OTHERWISE BE FINAL. 
UNITED STATES V. OHIO POWER CO., 353 U.S. 98, 99. 

GONDECK V. PAN AMERICAN WORLD AIRWAYS, INC., ET AL. 

ON MOTION FOR LEAVE TO FILE SECOND PETITION FOR REHEARING. 

PER CURIAM. 

PETITIONER'S HUSBAND, FRANK J. GONDECK, WAS KILLED AS A RESULT OF A
JEEP ACCIDENT ON SAN SALVADOR ISLAND OUTSIDE A DEFENSE BASE AT WHICH HE
WAS EMPLOYED.  THE ACCIDENT TOOK PLACE IN THE EVENING AS GONDECK AND
FOUR OTHERS WERE RETURNING FROM A NEARBY TOWN.  THE DEPUTY COMMISSIONER
OF THE BUREAU OF EMPLOYEES' COMPENSATION, UNITED STATES DEPARTMENT OF
LABOR, AWARDED DEATH BENEFITS TO PETITIONER IN ACCORDANCE WITH THE
TERMS OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 44
STAT. 1424, AS AMENDED, 33 U.S.C. SEC. 901 ET SEQ. (1958 ED.), AS
EXTENDED BY THE DEFENSE BASE ACT, 55 STAT. 622, AS AMENDED, 42 U.S.C.
SEC.  1651 ET SEQ. (1958 ED.).  IN SUPPORT OF THE AWARD, THE DEPUTY
COMMISSIONER FOUND, AMONG OTHER THINGS, THAT, ALTHOUGH GONDECK HAD
COMPLETED HIS DAY'S WORK, HE WAS SUBJECT TO CALL FOR EMERGENCIES WHILE
OFF DUTY AND WAS RETURNING FROM REASONABLE RECREATION WHEN THE ACCIDENT
OCCURRED.  THE DISTRICT COURT SET ASIDE THE DEPUTY COMMISSIONER'S
ORDER, AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  UNITED
STATES V. PAN AMERICAN WORLD AIRWAYS, INC., 299 F.2D 74.  THE COURT OF
APPEALS ACKNOWLEDGED THAT GONDECK WAS SUBJECT TO CALL, ID., AT 75, BUT
FOUND NO BENEFIT TO THE EMPLOYER IN GONDECK'S TRIP, AND "NO EVIDENCE
THAT FURNISHES A LINK BY WHICH THE ACTIVITY IN WHICH GONDECK WAS
ENGAGED WAS RELATED TO HIS EMPLOYMENT."  ID., AT 77. 

ON JUNE 11, 1962, WE DENIED CERTIORARI.  370 U.S. 918.  ON OCTOBER 8,
1962, WE DENIED A PETITION FOR REHEARING.  371 U.S. 856.  WE ARE NOW
APPRISED, HOWEVER, OF "INTERVENING CIRCUMSTANCES OF SUBSTANTIAL  ...
EFFECT,"* JUSTIFYING APPLICATION OF THE ESTABLISHED DOCTRINE THAT "THE
INTEREST IN FINALITY OF LITIGATION MUST YIELD WHERE THE INTERESTS OF
JUSTICE WOULD MAKE UNFAIR THE STRICT APPLICATION OF OUR RULES."  UNITED
STATES V. OHIO POWER CO., 353 U.S. 98, 99.  SUBSEQUENT TO OUR ORDERS IN
THE PRESENT CASE, THE COURT OF APPEALS FOR THE FOURTH CIRCUIT UPHELD AN
AWARD TO THE SURVIVORS OF ANOTHER EMPLOYEE KILLED IN THE SAME
ACCIDENT.  PAN AMERICAN WORLD AIRWAYS, INC. V. O'HEARNE, 335 F.2D 70. 
IN UPHOLDING THE AWARD, THE COURT CITED OUR DECISION IN O'LEARY V.
BROWN-PACIFIC-MAXON, INC., 340 U.S. 504.  IN A SUBSEQUENT CASE THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT ITSELF EXPRESSED DOUBT WHETHER
ITS DECISION IN THE PRESENT CASE HAD BEEN CONSISTENT WITH BROWN-PACIFIC
MAXON.  O'KEEFFE V. PAN AMERICAN WORLD AIRWAYS, 338 F.2D 319, 325.  THE
COURT ALSO NOTED THAT, "THE GONDECK CASE STANDS ALONE, EXCEPT FOR A PER
CURIAM OPINION."  ID., AT 325.  THIS COURT REVERSED THAT PER CURIAM
JUDGMENT LAST TERM, O'KEEFFE V. SMITH, HINCHMAN & GRYLLS ASSOCIATES,
INC., 380 U.S. 359, SO THAT THE PRESENT CASE NOW STANDS COMPLETELY
ALONE. 

*U.S. SUPREME CT. RULE 58(2). 

IN O'KEEFFE WE MADE CLEAR THAT THE DETERMINATIONS OF THE DEPUTY
COMMISSIONER ARE SUBJECT ONLY TO LIMITED JUDICIAL REVIEW, AND WE
REAFFIRMED THE BROWN-PACIFIC-MAXON HOLDING THAT THE DEPUTY COMMISSIONER
NEED NOT FIND A CAUSAL RELATION BETWEEN THE NATURE OF THE VICTIM'S
EMPLOYMENT AND THE ACCIDENT, NOR THAT THE VICTIM WAS ENGAGED IN
ACTIVITY OF BENEFIT TO THE EMPLOYER AT THE TIME OF HIS INJURY OR
DEATH.  NO MORE IS REQUIRED THAN THAT THE OBLIGATIONS OR CONDITIONS OF
EMPLOYMENT CREATE THE "ZONE OF SPECIAL DANGER" OUT OF WHICH THE INJURY
OR DEATH AROSE.  SINCE THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
MISINTERPRETED THE BROWN-PACIFIC-MAXON STANDARD IN THIS CASE, AND
SINCE, OF THOSE ELIGIBLE FOR COMPENSATION FROM THE ACCIDENT, THIS
PETITIONER STANDS ALONE IN NOT RECEIVING IT, "THE INTERESTS OF JUSTICE
WOULD MAKE UNFAIR THE STRICT APPLICATION OF OUR RULES."  UNITED STATES
V. OHIO POWER CO., SUPRA, AT 99. 

WE THEREFORE GRANT THE MOTION FOR LEAVE TO FILE THE PETITION FOR
REHEARING, GRANT THE PETITION FOR REHEARING, VACATE THE ORDER DENYING
CERTIORARI, GRANT THE PETITION FOR CERTIORARI, AND REVERSE THE JUDGMENT
OF THE COURT OF APPEALS.  IT IS SO ORDERED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE CLARK, JOINING IN THE JUDGMENT. 

I FULLY AGREE WITH MY BROTHER HARLAN "THAT LITIGATION MUST AT SOME
POINT COME TO AN END" AND "THAT THIS DECISION HOLDS SEEDS OF MISCHIEF
FOR THE FUTURE ORDERLY ADMINISTRATION OF JUSTICE  ...  ."  BUT WITH
CAHILL V. NEW YORK, N.H.&H.R. CO., 351 U.S. 183 (1956), ON OUR BOOKS,
NO OTHER CONCLUSION CAN BE REACHED. 

UP UNTIL CAHILL I THOUGHT THAT SUCCESSIVE PETITIONS FOR REHEARING
WOULD NOT BE RECEIVED BY THE COURT UNDER ITS RULE 58(4).  (FN1)  THIS
RULE TOOK THE PLACE OF THE OLD "END OF TERM" RULE OF BRONSON V.
SCHULTEN, 104 U.S. 410, 415 (1882), ABOLISHED BY THE CONGRESS IN 1948,
28 U.S.C. SEC. 452 (1958 ED.).  INDEED, I DOUBTED THAT THE COURT HAD
THE POWER TO GRANT A SUCCESSIVE PETITION FOR REHEARING UNDER A FACTUAL
SITUATION, AS HERE, WHERE A PETITION FOR CERTIORARI HAD BEEN DENIED
OVER THREE YEARS AGO, 370 U.S. 918 (1962); A PETITION FOR REHEARING HAD
BEEN DENIED, 371 U.S. 856 (1962); THE MANDATE HAD ISSUED MORE THAN
THREE YEARS BEFORE; AND WHERE PETITIONER HAD, ABOUT THE SAME DATE,
CANCELLED HER APPEAL BOND AND BEEN DISCHARGED OF ALL LIABILITY
THEREUNDER.  IN CAHILL, HOWEVER, THE COURT THROUGH THE DEVICE OF A
"MOTION TO RECALL AND AMEND THE JUDGMENT" PERMITTED A SUCCESSIVE
PETITION NOT ONLY TO BE RECEIVED BUT GRANTED, DESPITE THE FACT THAT THE
JUDGMENT THEREBY REOPENED HAD BEEN PREVIOUSLY PAID.  (FN2)  THIS PAVED
THE WAY FOR THE GRANT OF A SUCCESSIVE PETITION FOR REHEARING IN UNITED
STATES V. OHIO POWER CO., 353 U.S. 98 (1957), TO MAKE ITS JUDGMENT
CONFORM WITH THIS COURT'S DECISION THAT SAME TERM IN UNITED STATES V.
ALLEN-BRADLEY CO., 352 U.S. 306 (1957), A COMPANION CASE OF OHIO POWER
IN THE COURT OF CLAIMS. 

THE VICE, OF COURSE, IS THE GRANTING OF SUCCESSIVE PETITIONS FOR
REHEARING IN VIOLATION OF RULE 58(4), WHICH WAS DONE FOR THE FIRST TIME
IN CAHILL.  IT MAKES NO DIFFERENCE THAT THE REJECTION OF FINALITY BE TO
CORRECT ALLEGED ERRORS OF OUR OWN OR THOSE BELOW.  NOR DOES IT MATTER
THAT THE ERRORS BE CORRECTED IN THE SAME TERM, AS IN CAHILL, OR FOUR
TERMS LATER, AS HERE.  IN EACH INSTANCE THE ACTION VIOLATES RULE 58(4)
AND THAT IS THE BASIS OF MY POSITION. 

I, TOO, AS MY BROTHER HARLAN SAID IN OHIO POWER, "CAN THINK OF
NOTHING MORE UNSETTLING TO LAWYERS AND LITIGANTS, AND MORE DISTURBING
TO THEIR CONFIDENCE IN THE EVENHANDEDNESS OF THE COURT'S PROCESSES,
THAN TO BE LEFT IN  ...  UNCERTAINTY  ...  AS TO WHEN THEIR CASES MAY
BE CONSIDERED FINALLY CLOSED IN THIS COURT."  AT P. 111 (DISSENTING
OPINION).  HOWEVER, CAHILL OPENED UP THIS PRACTICE.  IT MAY BE THAT
OHIO POWER AND THE PRESENT CASE ARE MORE OBJECTIONABLE ON THEIR FACTS,
BUT THEY MERELY CONDONE CAHILL'S ORIGINAL VICE.  UNTIL WE CAN GAIN THE
VOTE OF THE MAJORITY TO THE CONTRARY WE ARE STUCK WITH THE PRACTICE. 
THE OUTLOOK FOR THIS APPEARS DIM.  WE CAN ONLY HOPE THAT THIS RULE OF
"NO FINALITY," WHICH THE COURT VARNISHES WITH THE CHARMS OF REASON,
WILL BE SPARINGLY USED, OR OVERRULED BY CONGRESS, AS WAS THE "END OF
TERM" RULE.  I, THEREFORE, JOIN IN THE JUDGMENT OF THE COURT. 

FN1  "CONSECUTIVE PETITIONS FOR REHEARINGS, AND PETITIONS FOR
REHEARING THAT ARE OUT OF TIME UNDER THIS RULE, WILL NOT BE RECEIVED." 

FN2  MR. JUSTICE BLACK, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS AND MYSELF, DISSENTED. 

MR. JUSTICE HARLAN, DISSENTING. 

THE RESULT REACHED IN THIS CASE HAS BEEN ACHIEVED AT THE EXPENSE OF
THE SOUND LEGAL PRINCIPLE THAT LITIGATION MUST AT SOME POINT COME TO AN
END. 

I CAN FIND NOTHING IN THE TRAIN OF EVENTS ON WHICH THE COURT RELIES
IN OVERTURNING THIS MORE THAN THREE-YEAR-OLD FINAL JUDGMENT THAT
JUSTIFIES BRINGING INTO PLAY THE DUBIOUS DOCTRINE OF UNITED STATES V.
OHIO POWER CO., 353 U.S. 98, A CASE WHICH WAS DECIDED BY A CLOSELY
DIVIDED VOTE OF LESS THAN A FULL BENCH, (FN1) WHICH DEVIATED FROM LONG
ESTABLISHED PRACTICES OF THIS COURT, (FN2) AND WHICH, SO FAR AS I CAN
FIND, HAS HAD NO SEQUEL IN SUBSEQUENT DECISIONS OF THE COURT.  (FN3) 

THE JUDGMENT AGAINST THIS PETITIONER BECAME FINAL AS LONG AGO AS JUNE
11, 1962.  370 U.S. 918.  THE COURT REFUSED TO RECONSIDER IT FOUR
MONTHS LATER WHEN IT DENIED REHEARING ON OCTOBER 8, 1962.  371 U.S.
856.  WHEN SOME TWO YEARS LATER, JULY 13, 1964, THE COURT OF APPEALS
FOR THE FOURTH CIRCUIT UPHELD A COMPENSATION AWARD WITH RESPECT TO A CO
EMPLOYEE OF GONDECK KILLED IN THE SAME ACCIDENT, PAN AMERICAN WORLD
AIRWAYS, INC. V. O'HEARNE, 335 F.2D 70, PETITIONER DID NOT EVEN SEEK TO
FILE ANOTHER PETITION FOR REHEARING HERE.  A FEW MONTHS LATER THE FIFTH
CIRCUIT MIGHT BE THOUGHT TO HAVE INDICATED SOME DOUBT ABOUT ITS EARLIER
DECISION IN THE GONDECK CASE, O'KEEFFE V. PAN AMERICAN WORLD AIRWAYS,
INC., 338 F.2D 319, 325, BUT AGAIN NO ATTEMPT WAS MADE TO FILE A
FURTHER PETITION FOR REHEARING HERE IN GONDECK. 

IT WAS THIS COURT'S DECISION OF LAST TERM IN O'KEEFFE V. SMITH,
HINCHMAN & GRYLLS ASSOCIATES, INC., 380 U.S. 359, WHICH ITSELF WAS A
DEBATABLE INNOVATION IN THIS AREA OF THE LAW, (FN4) THAT TRIGGERED THE
UNDOING OF THIS JUDGMENT OF FOUR TERMS AGO.  IT SHOULD BE NOTED THAT
THE SUBJECT MATTER IN O'KEEFFE V. PAN AMERICAN WORLD AIRWAYS, INC., WAS
AN ENTIRELY DIFFERENT ACCIDENT FROM THE ONE IN WHICH PETITIONER'S
DECEDENT WAS INVOLVED. 

THIS, THEN, IS HARDLY ONE OF THOSE RARE CASES IN WHICH "'THE INTEREST
IN FINALITY OF LITIGATION MUST YIELD'" BECAUSE "'THE INTERESTS OF
JUSTICE WOULD MAKE UNFAIR THE STRICT APPLICATION OF OUR RULES,'" ANTE,
PP. 26-27.  ON THE CONTRARY, THE SITUATION IS ONE IN WHICH THE
PREVAILING PARTY IN THIS LITIGATION HAD EVERY REASON TO COUNT ON THE
JUDGMENT IN ITS FAVOR REMAINING FIRM.  BELIEVING THAT THIS DECISION
HOLDS SEEDS OF MISCHIEF FOR THE FUTURE ORDERLY ADMINISTRATION OF
JUSTICE, I RESPECTFULLY DISSENT. 

FN1  THE VOTE WAS 4 TO 3, MR. JUSTICE BRENNAN AND MR. JUSTICE
WHITTAKER, SINCE RETIRED, NOT PARTICIPATING.  353 U.S., AT 99. 

FN2  SEE DISSENTING OPINION OF HARLAN, J., 353 U.S., AT 99. 

FN3  MY BROTHER CLARK'S CITATION OF CAHILL V. NEW YORK, N.H.&H.R.
CO., 351 U.S. 183, ANTE, P. 28, FOR THE PROPOSITION THAT THIS PETITION
FOR REHEARING MUST BE GRANTED IS INAPPOSITE.  CAHILL WAS AN FELA CASE
IN WHICH THIS COURT REVERSED SUMMARILY A JUDGMENT OF THE COURT OF
APPEALS OVERTURNING A DISTRICT COURT JUDGMENT FOR THE PLAINTIFF, 350
U.S. 898.  LATER THAT SAME TERM, AFTER A PETITION FOR REHEARING HAD
BEEN DENIED, 350 U.S. 943, THE COURT WAS PERSUADED ON "A MOTION TO
RECALL AND AMEND THE JUDGMENT" THAT ITS MANDATE, WHICH SIMPLY
REINSTATED THE DISTRICT COURT'S JUDGMENT, WAS INCORRECT AND THAT THE
CASE SHOULD PROPERLY HAVE BEEN REMANDED TO THE COURT OF APPEALS FOR
FURTHER PROCEEDINGS.  IT IS DIFFICULT FOR ME TO SEE HOW THE CORRECTION
DURING THE SAME TERM OF OUR OWN ERROR IN CAHILL CAN BE THOUGHT TO
COMPEL OR JUSTIFY A GENERAL "RULE OF 'NO FINALITY'" (AS MY BROTHER
CLARK PUTS IT, ANTE, P. 29) WHICH REQUIRES THE GRANTING OF A SECOND
PETITION FOR REHEARING THREE YEARS AFTER THE FIRST ONE WAS DENIED IN A
CASE WHICH THIS COURT NEVER HEARD. 

FN4  THE CASE WAS DECIDED WITHOUT ARGUMENT BY A SUBSTANTIALLY DIVIDED
COURT, 380 U.S. 359.  SEE DISSENTING OPINION OF HARLAN, J., JOINED BY
CLARK AND WHITE, JJ., 380 U.S., AT 365.  SEE ALSO SEPARATE OPINION OF
DOUGLAS, J., 380 U.S., AT 371. 
..END :















JONES & LAUGHLIN V. GRIDIRON STEEL CO. 382 U.S. 32 


NO. 123.  DECIDED OCTOBER 18, 1965.  - CERTIORARI GRANTED AND CASE
REMANDED. 


FED. RULE CIV. PROC. 6(A) EXTENDING TIME LIMIT THAT WOULD OTHERWISE
EXPIRE ON A SATURDAY, SUNDAY, OR LEGAL HOLIDAY TO THE END OF NEXT DAY
NOT IN THAT CATEGORY HELD NOT INAPPLICABLE ON GROUND THAT COURT OF
APPEALS HAD DIRECTED DISTRICT COURT CLERK'S OFFICE TO REMAIN OPEN
SATURDAY MORNINGS. 

JONES & LAUGHLIN STEEL CORP. V. GRIDIRON STEEL CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT IS GRANTED, AND THE JUDGMENT DISMISSING PETITIONER'S
APPEAL TO THAT COURT IS REVERSED.  THE TIME LIMITED BY 28 U.S.C. SEC.
2107 AND FED. RULE CIV. PROC. 73 FOR THE FILING OF THE NOTICE OF APPEAL
FROM THE JUDGMENT APPEALED FROM WAS 30 DAYS.  HOWEVER, FED. RULE CIV.
PROC. 6(A), AS AMENDED, PROVIDES THAT IN COMPUTING THE PERIOD, "THE
LAST DAY OF THE PERIOD SO COMPUTED SHALL BE INCLUDED, UNLESS IT IS A
SATURDAY, A SUNDAY, OR A LEGAL HOLIDAY, IN WHICH EVENT THE PERIOD RUNS
UNTIL THE END OF THE NEXT DAY WHICH IS NOT A SATURDAY, A SUNDAY, OR A
LEGAL HOLIDAY."  SINCE THE THIRTIETH DAY FOLLOWING ENTRY OF THE
JUDGMENT APPEALED FROM WAS SATURDAY AND THE NOTICE OF APPEAL WAS FILED
THE FOLLOWING MONDAY, WE HOLD THAT THE FILING OF THE NOTICE OF APPEAL
WAS TIMELY.  THE PROVISION OF RULE 6(A) WAS NOT MADE INAPPLICABLE BY
THE ORDER OF THE COURT OF APPEALS DIRECTING THAT THE DISTRICT COURT
CLERK'S OFFICES BE OPEN FOR BUSINESS ON SATURDAY MORNINGS.  THE CASE IS
REMANDED TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 
..END :
















FIRST SECURITY NATIONAL BANK V. UNITED STATES 382 U.S. 34 


NO. 141.  DECIDED OCTOBER 18, 1965.  - REVERSED. 


THIS COURT HELD THAT THE BANK MERGER RESULTING IN APPELLANT BANK'S
FORMATION VIOLATED THE SHERMAN ACT AND REMANDED THE CASE TO THE
DISTRICT COURT "FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THE OPINION
OF THIS COURT."  (376 U.S. 665.)  AFTER SEVERAL POSTPONEMENTS OF THE
DATE SET BY THE DISTRICT COURT FOR REPORTING PROGRESS "IN COMPLYING
WITH THE MANDATE OF THE SUPREME COURT," THE PARTIES PRESENTED A
PROPOSED INTERLOCUTORY DECREE PROVIDING FOR SUBMISSION OF A DETAILED
DIVESTITURE PLAN IN SIX MONTHS.  THE DISTRICT COURT THEREUPON HELD
APPELLANT BANK AND ITS OFFICERS IN CONTEMPT FOR FAILURE TO COMPLY WITH
THIS COURT'S MANDATE.  HELD:  SINCE DIVESTITURE WAS NOT ORDERED WITHIN
ANY SPECIFIC PERIOD, APPELLANTS DID NOT VIOLATE THIS COURT'S JUDGMENT. 

FIRST SECURITY NATIONAL BANK & TRUST CO. OF LEXINGTON ET AL. V. UNITED
STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF KENTUCKY. 

PER CURIAM. 

IN UNITED STATES V. FIRST NATIONAL BANK, 376 U.S. 665, THIS COURT
HELD THAT THE MERGER OF FIRST NATIONAL BANK AND TRUST CO. OF LEXINGTON,
KENTUCKY, WITH SECURITY TRUST CO. OF LEXINGTON TO FORM FIRST SECURITY
NATIONAL BANK AND TRUST CO. VIOLATED SEC. 1 OF THE SHERMAN ACT, 26
STAT. 209, 15 U.S.C. SEC. 1.  THE COURT'S JUDGMENT REMANDED THE CASE TO
THE DISTRICT COURT "FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THE
OPINION OF THIS COURT."  THEREAFTER, ON JULY 1, 1964, THE DISTRICT
COURT ORDERED THE PARTIES "TO REPORT TO THE COURT THE PROGRESS MADE IN
COMPLYING WITH THE JUDGMENT" OF THE SUPREME COURT.  ON APPLICATION OF
THE PARTIES, THE REPORTING DATE WAS THRICE POSTPONED TO PERMIT
NEGOTIATIONS BETWEEN FIRST SECURITY AND THE GOVERNMENT CONCERNING AN
APPROPRIATE PLAN OF DIVESTITURE.  WHEN, ON THE FINAL DATE FOR
REPORTING, FEBRUARY 16, 1965, THE PARTIES JOINTLY PRESENTED ONLY A
PROPOSED INTERLOCUTORY DECREE PROVIDING THAT THE DETAILED PLAN FOR
DIVESTITURE WOULD BE SUBMITTED WITHIN SIX MONTHS, THE DISTRICT COURT
HELD FIRST SECURITY, ITS EXECUTIVE OFFICERS AND DIRECTORS IN CONTEMPT. 
ALTHOUGH THERE IS SOME INDICATION THAT THE DISTRICT COURT WAS
DISSATISFIED WITH THE COMPLIANCE OF THE BANK WITH THE DISTRICT COURT'S
ORDER OF JULY 1, 1964, THE CONTEMPT JUDGMENT ITSELF WAS ENTERED BECAUSE
THE DELAY IN SUBMITTING A FINAL PLAN OF DIVESTITURE WAS A FAILURE "TO
COMPLY WITH THE MANDATE OF THE SUPREME COURT  ...  ."  THE COURT
IMPOSED A FINE OF $100 PER DAY UNTIL THE CONTEMPT HAD BEEN PURGED BY
"FULL COMPLIANCE WITH THE MANDATE OF THE SUPREME COURT." 

THE DISTRICT JUDGE'S INTERPRETATION OF THIS COURT'S JUDGMENT WAS
ERRONEOUS.  WE REMANDED THE CASE FOR FURTHER PROCEEDINGS IN THE
DISTRICT COURT CONSISTENT WITH THIS COURT'S OPINION.  NEITHER THE
OPINION NOR THE JUDGMENT OF THIS COURT EXPRESSLY DEALT WITH THE MATTER
OF REMEDY AND NEITHER ORDERED DIVESTITURE WITHIN ANY PARTICULAR PERIOD
OF TIME.  COMPARE UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S.
651, 662 (DECIDED THE SAME DAY AS THE PRIOR APPEAL IN THIS CASE AND
DIRECTING THE DISTRICT COURT TO ORDER DIVESTITURE WITHOUT DELAY).  NO
ORDER OF DIVESTITURE WAS ENTERED IN THE DISTRICT COURT UNTIL MARCH 18,
1965, A MONTH AFTER THE BANK HAD BEEN HELD IN CONTEMPT.  THE DISTRICT
COURT HAS THE AUTHORITY TO REQUIRE OBEDIENCE AND TO PUNISH DISOBEDIENCE
OF ITS LAWFUL ORDERS AND DECREES, 18 U.S.C. SEC. 401, BUT THIS RECORD
REVEALS NOTHING THE BANK DID OR FAILED TO DO WHICH VIOLATED THE
JUDGMENT OF THIS COURT.  THE JUDGMENT HOLDING THE BANK, ITS EXECUTIVE
OFFICERS AND DIRECTORS IN CONTEMPT IS REVERSED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







JAMES V. LOUISIANA 382 U.S. 36 


NO. 23, MISC.  DECIDED OCTOBER 18, 1965.  - CERTIORARI GRANTED; 246 LA.
1033, 169 SO. 2D 89, REVERSED AND REMANDED. 


AFTER PETITIONER'S ARREST, HE WAS DRIVEN BY POLICE TO HIS HOME, MORE
THAN TWO BLOCKS AWAY, WHERE AN INTENSIVE SEARCH WITHOUT A WARRANT
YIELDED THE NARCOTICS AND EQUIPMENT WHICH WERE THE BASIS FOR HIS
CONVICTION FOR POSSESSION OF NARCOTICS.  HELD:  THE SEARCH WAS NOT
INCIDENT TO THE ARREST WHICH OCCURRED MORE THAN TWO BLOCKS AWAY AND IT
WAS CONSTITUTIONAL ERROR TO ADMIT THE FRUITS OF THE ILLEGAL SEARCH INTO
EVIDENCE. 

JAMES V. LOUISIANA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA. 

PER CURIAM. 

THE PETITIONER WAS CONVICTED BY A LOUISIANA JURY OF POSSESSION OF
NARCOTICS AND WAS SENTENCED TO IMPRISONMENT FOR 10 YEARS.  THE SUPREME
COURT OF LOUISIANA SET ASIDE THE CONVICTION ON THE GROUND THAT IT WAS
BASED UPON EVIDENCE SEIZED WITHOUT A WARRANT DURING AN ILLEGAL SEARCH. 
246 LA. 1033, 169 SO. 2D 89.  UPON REHEARING, HOWEVER, THAT COURT
AFFIRMED THE CONVICTION BY A DIVIDED VOTE.  246 LA. 1053, 169 SO. 2D
97.  WE GRANT THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR CERTIORARI AND REVERSE THE JUDGMENT. 

POLICE OFFICERS ARRESTED THE PETITIONER NEAR THE INTERSECTION OF CAMP
STREET AND JACKSON AVENUE IN THE CITY OF NEW ORLEANS, AFTER HE HAD
ALIGHTED FROM AN AUTOMOBILE DRIVEN BY ANOTHER MAN.  THE OFFICERS THEN
DROVE THE PETITIONER TO HIS HOME, MORE THAN TWO BLOCKS AWAY.  THEY
BROKE OPEN THE DOOR AND FOR SEVERAL HOURS CONDUCTED AN INTENSIVE SEARCH
WHICH FINALLY YIELDED THE NARCOTICS EQUIPMENT AND SINGLE MORPHINE
TABLET THAT CONSTITUTED THE BASIS OF THE PETITIONER'S SUBSEQUENT
CONVICTION. 

THE SUPREME COURT OF LOUISIANA FOUND THAT THE OFFICERS HAD PROBABLE
CAUSE TO ARREST THE PETITIONER AT THE TIME THEY APPREHENDED HIM, AND
THE VALIDITY OF HIS ARREST IS NOT HERE IN ISSUE.  IN THE CIRCUMSTANCES
OF THIS CASE, HOWEVER, THE SUBSEQUENT SEARCH OF THE PETITIONER'S HOME
CANNOT BE REGARDED AS INCIDENT TO HIS ARREST ON A STREET CORNER MORE
THAN TWO BLOCKS AWAY.  A SEARCH "CAN BE INCIDENT TO AN ARREST ONLY IF
IT IS SUBSTANTIALLY CONTEMPORANEOUS WITH THE ARREST AND IS CONFINED TO
THE IMMEDIATE VICINITY OF THE ARREST."  STONER V. CALIFORNIA, 376 U.S.
483, 486.  SEE ALSO PRESTON V. UNITED STATES, 376 U.S. 364. 

UNDER THE DOCTRINE OF MAPP V. OHIO, 367 U.S. 643, SEE ALSO KER V.
CALIFORNIA, 374 U.S. 23, IT WAS CONSTITUTIONAL ERROR TO ADMIT THE
FRUITS OF THIS ILLEGAL SEARCH INTO EVIDENCE AT THE PETITIONER'S TRIAL. 
ACCORDINGLY, THE PETITION FOR CERTIORARI IS GRANTED, THE JUDGMENT IS
REVERSED, AND THE CASE IS REMANDED TO THE SUPREME COURT OF LOUISIANA
FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 
..END :


















METROMEDIA V. COMPOSERS, AUTHORS & PUBLISHERS 382 U.S. 38 


NO. 212.  DECIDED OCTOBER 18, 1965.  - APPEAL DISMISSED. 


METROMEDIA,INC.  V. AMERICAN SOCIETY OF COMPOSERS, AUTHORS & PUBLISHERS
ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 
..END :
















KASHARIAN V. METROPOLITAN LIFE INS. CO. 382 U.S. 38 


NO. 446, MISC.  DECIDED OCTOBER 18, 1965.  - APPEAL DISMISSED. 


KASHARIAN ET AL. V. METROPOLITAN LIFE INSURANCE CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 
..END :

















WELLS V. REYNOLDS 382 U.S. 39 


NO. 258.  DECIDED OCTOBER 18, 1965.  - 238 F. SUPP. 779, AFFIRMED. 


WELLS ET AL. V. REYNOLDS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF GEORGIA. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN AND MR. JUSTICE FORTAS
DISSENT. 
..END :















SHAKESPEARE V. PASADENA 382 U.S. 39 


NO. 281.  DECIDED OCTOBER 18, 1965.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


SHAKESPEARE ET AL. V. CITY OF PASADENA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :











NATIONAL TRAILER CONVOY V. UNITED STATES 382 U.S. 40 


NO. 373.  DECIDED OCTOBER 18, 1965.  - 240 F. SUPP. 286, AFFIRMED. 


NATIONAL TRAILER CONVOY, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OKLAHOMA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















KASHARIAN V. SOUTH PLAINFIELD BAPTIST CHURCH 382 U.S. 40 


NO. 433, MISC.  DECIDED OCTOBER 18, 1965.  - APPEAL DISMISSED. 


KASHARIAN ET AL. V. SOUTH PLAINFIELD BAPTIST CHURCH ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :


















STEBBINS V. MACY 382 U.S. 41 


NO. 384.  DECIDED OCTOBER 18, 1965.  - APPEAL DISMISSED. 


STEBBINS V. MACY, CHAIRMAN, U.S. CIVIL SERVICE COMMISSION, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :


















FAIRFAX FAMILY FUND V. CALIFORNIA 382 U.S. 1 


NO. 124.  DECIDED OCTOBER 11, 1965.  - 235 CAL. APP. 2D 881, 47 CAL.
RPTR.  812, APPEAL DISMISSED. 


FAIRFAX FAMILY FUND, INC. V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

APPELLANT IS A KENTUCKY CORPORATION ENGAGED IN A MAIL-ORDER LOAN
BUSINESS IN THIRTY-TWO STATES.  IT HAS NO OFFICES, NO AGENTS, NO
EMPLOYEES, AND NO PROPERTY IN CALIFORNIA.  IT SOLICITS LOANS FROM
CALIFORNIA RESIDENTS BY MAIL; AFTER A CREDIT REPORT IS PREPARED BY A
LOCAL INDEPENDENT CONTRACTOR, THE LOAN APPLICATION IS PASSED ON BY
APPELLANT'S OFFICERS IN KENTUCKY.  IF THE LOAN IS APPROVED, THE CHECK
IS MAILED TO THE BORROWER FROM KENTUCKY.  BECAUSE APPELLANT FAILED TO
OBTAIN A LICENSE FROM THE STATE OF CALIFORNIA AND PAY THE ANNUAL $200
FEE, APPELLEE SOUGHT AND OBTAINED AN INJUNCTION BARRING APPELLANT FROM
CONDUCTING ITS OUT-OF-STATE SMALL-LOAN BUSINESS UNTIL THE REQUISITE
CALIFORNIA LICENSE WAS OBTAINED.  IN ORDER TO OBTAIN A LICENSE, THE
LENDER MUST DISPLAY "THE FINANCIAL RESPONSIBILITY, EXPERIENCE,
CHARACTER, AND GENERAL FITNESS  ...  SUCH AS TO COMMAND THE CONFIDENCE
OF THE COMMUNITY AND TO WARRANT BELIEF THAT THE BUSINESS WILL BE
OPERATED HONESTLY, FAIRLY, AND EFFICIENTLY  ...  ."  CAL. FIN.  CODE. 
SEC. 24206. 

OUR DECISIONS HAVE HERETOFORE PRECLUDED A STATE FROM EXACTING A
LICENSE OF A FIRM DOING AN EXCLUSIVELY INTERSTATE BUSINESS AS A
CONDITION OF ENTRY INTO THE STATE.  SEE., E.G., ROBBINS V. SHELBY
COUNTY TAXING DISTRICT, 120 U.S. 489; CRUTCHER V. KENTUCKY, 141 U.S.
47; ELI LILLY & CO. V. SAV-ON-DRUGS, 366 U.S. 276, 278-289; SEE ALSO
ID., AT 288, 289-292 (DOUGLAS, J., DISSENTING).  APPELLEE WOULD
CHARACTERIZE THESE CALIFORNIA STATUTES AS PRIMARILY OF A REGULATORY
NATURE, INVOKING ROBERTSON V. CALIFORNIA, 328 U.S. 440, IN WHICH THE
MAJORITY OF THE COURT HELD THAT A STATE MIGHT EXCLUDE AN INTERSTATE
INSURANCE COMPANY WHICH FAILED TO MEET CERTAIN MINIMUM RESERVE
REQUIREMENTS DESIGNED TO ASSURE THAT THE INSURER IS FINANCIALLY
SOLVENT. 

BUT HERE CALIFORNIA EXACTS A $200 ANNUAL FEE AS A CONDITION OF
OBTAINING AND MAINTAINING A LICENSE.  AS WE RECOGNIZED IN MURDOCK V.
PENNSYLVANIA, 319 U.S. 105, 112:  "THE POWER TO TAX THE EXERCISE OF A
PRIVILEGE IS THE POWER TO CONTROL OR SUPPRESS ITS ENJOYMENT."  THE
CALIFORNIA DISTRICT COURT OF APPEAL VIEWED THE FEE AS ONE DESIGNED TO
OFFSET THE EXPENSES OF ADMINISTERING THE LICENSING SYSTEM ITSELF.  FROM
CALIFORNIA' CHARACTERIZATION OF THE FEE* IT IS NOT ONE TO "DEFRAY THE
COST OF PURELY LOCAL REGULATIONS" WHICH WE INDICATED WAS PERMISSIBLE IN
MURDOCK, 319 U.S., AT 114, N. 8. 

*"THE CHARGES OR EXPENSES IMPOSED BY THE LICENSING PROCEDURE ARE NO
LARGER IN AMOUNT THAN IS REASONABLY NECESSARY TO DEFRAY THE
ADMINISTRATIVE EXPENSES INVOLVED  ...  ."  CALIFORNIA V. FAIRFAX FAMILY
FUND, 235 CAL. APP. 2D 881, 884, 47 CAL. RPTR.  812, 814. 

BECAUSE I BELIEVE THAT THIS CASE PRESENTS SUBSTANTIAL AND IMPORTANT
CONSITUTIONAL QUESTIONS, I WOULD NOTE PROBABLE JURISDICTION AND SET
THIS CASE DOWN FOR ARGUMENT. 
..END :









WMCA, INC. V. LOMENZO 382 U.S. 4 


NO. 85.  DECIDED OCTOBER 11, 1965.  - 238 F. SUPP. 916, AFFIRMED. 


WMCA, INC., ET AL. V. LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING.* 

*THIS OPINION APPLIES ALSO TO NO. 191, TRAVIA ET AL. V. LOMENZO,
SECRETARY OF STATE OF NEW YORK, ET AL.; NO. 319, ROCKEFELLER, GOVERNOR
OF NEW YORK, ET AL. V. ORANS ET AL.; AND NO. 449, SCREVANE, PRESIDENT
OF CITY COUNCIL OF CITY OF NEW YORK, ET AL. V. LOMENZO, SECRETARY OF
STATE OF NEW YORK, ET AL. 

THE COURT TODAY DISPOSES SUMMARILY OF FOUR NEW YORK REAPPORTIONMENT
CASES; IT RETAINS JURISDICTION OF A FIFTH, LOMENZO V. WMCA, INC., NO.
81, WHICH RAISES SUBSTANTIAL QUESTIONS SIMILAR TO SOME OF THOSE
INVOLVED IN A SET OF HAWAII REAPPORTIONMENT CASES, BURNS V. RICHARDSON,
NO. 318; CRAVALHO V. RICHARDSON, NO. 323; AND ABE V. RICHARDSON, NO.
409, WITH RESPECT TO WHICH PROBABLE JURISDICTION HAS BEEN NOTED (POST,
P. 807).  BECAUSE THESE CRYPTIC DISPOSITIONS RISK BEWILDERING THE NEW
YORK LEGISLATORS AND COURTS, LET ALONE THOSE OF OTHER STATES, I BELIEVE
IT FITTING TO ELUCIDATE MY UNDERSTANDING OF THESE DISPOSITIONS, ALL OF
WHICH I JOIN ON THE PREMISES HEREIN INDICATED.  THE NEED FOR
CLARIFICATION IS PARTICULARLY DESIRABLE BECAUSE, THROUGH DISMISSAL OF
THE APPEAL IN ROCKEFELLER V. ORANS, NO. 319, AND AFFIRMANCE IN WMCA,
INC. V. LOMENZO, NO. 85, THIS COURT SIGNIFIES ITS APPROVAL OF TWO
DECISIONS CONCERNING THE SAME APPORTIONMENT PLAN, ONE OF WHICH (NO. 85)
FOUND IT ACCEPTABLE AND THE OTHER OF WHICH (NO. 319) STRUCK IT DOWN. 

THE NEW YORK LEGISLATURE ADOPTED AN APPORTIONMENT PLAN, KNOWN AS
"PLAN A," (FN1) TO COMPLY WITH AN ORDER OF A THREE-JUDGE DISTRICT
COURT, DATED JULY 27, 1964, REQUIRING THE STATE TO ENACT "A VALID
APPORTIONMENT SCHEME THAT IS IN COMPLIANCE WITH THE XIV AMENDMENT OF
THE UNITED STATES CONSTITUTION AND WHICH SHALL BE IMPLEMENTED SO AS TO
EFFECT THE ELECTION OF MEMBERS OF THE LEGISLATURE AT THE ELECTION IN
NOVEMBER, 1965, MEMBERS SO ELECTED TO HOLD OFFICE FOR A TERM OF ONE
YEAR ENDING DECEMBER 31, 1966  ...  ."  (FN2) 

IN WMCA, INC. V. LOMENZO, 238 F. SUPP. 916, THE THREE-JUDGE COURT
FOUND THAT PLAN A SATISFIED THIS ORDER; IN SO DOING IT REJECTED
CONTENTIONS THAT APPORTIONING ON A BASIS OF CITIZEN POPULATION VIOLATES
THE FEDERAL CONSTITUTION, AND THAT PARTISAN "GERRYMANDERING" MAY BE
SUBJECT TO FEDERAL CONSTITUTIONAL ATTACK UNDER THE FOURTEENTH
AMENDMENT.  IN AFFIRMING THIS DECISION, THIS COURT NECESSARILY AFFIRMS
THESE TWO EMINENTLY CORRECT PRINCIPLES. 

QUITE EVIDENTLY PLAN A WAS SEEN BY THE DISTRICT COURT, AND IS ALSO
VIEWED BY THIS COURT, AS BUT A TEMPORARY MEASURE.  IN HOLDING THE PLAN
FEDERALLY ACCEPTABLE FOR THE PURPOSE OF ELECTING A SPECIAL 1966
LEGISLATURE, THE DISTRICT COURT EXPLICITLY ABSTAINED FROM DEALING WITH
CHALLENGES TO THE PLAN UNDER THE STATE CONSTITUTION.  JUDGE WATERMAN
ALSO NOTED THAT ALTHOUGH PLAN A MET FEDERAL CONSTITUTIONAL
REQUIREMENTS, "OF COURSE, THE ULTIMATE FITNESS OF THE SCHEME FOR THEIR
NEEDS AND PURPOSES IS FOR THE PEOPLE OF THE STATE OF NEW YORK,
THEMSELVES, TO DECIDE, AND NOT FOR THIS COURT TO MANDATE."  238 F.
SUPP., AT 927. 

SUBSEQUENT TO THE DECISION BELOW IN WMCA, THE NEW YORK COURT OF
APPEALS HELD PLAN A (AS WELL AS PLANS B, C, AND D) UNCONSTITUTIONAL AS
A MATTER OF STATE LAW.  (FN3) IN NOW DISMISSING FOR LACK OF A
SUBSTANTIAL FEDERAL QUESTION THE APPEAL FROM THAT DECISION (ROCKEFELLER
V. ORANS, NO. 319) INSOFAR AS IT MAY BEAR UPON ANY APPORTIONMENT PLAN
EFFECTIVE AFTER THE EXPIRATION OF THE 1966 NEW YORK LEGISLATURE, I TAKE
IT THAT THE COURT IS ASSERTING THAT ANY FINAL APPORTIONMENT PLAN MUST
COMPORT WITH STATE AS WELL AS FEDERAL CONSTITUTIONAL REQUIREMENTS. 
(FN4)  SO MUCH OF THE DISPOSITION IN NO. 319 I JOIN WITHOUT
RESERVATION.  IN DISMISSING, WITHOUT MORE, THE REMAINING PART OF THAT
APPEAL, I TAKE IT THAT THE COURT IS SIMPLY REFLECTING ITS AFFIRMANCES
IN NOS. 191 AND 449 (POST, PP. 9, 11), WHEREBY IT PUTS ITS STAMP OF
APPROVAL ON THE DISTRICT COURT'S USE OF PLAN A, THOUGH INVALID UNDER
THE NEW YORK CONSTITUTION, AS A TEMPORARY MEASURE.  I ACQUIESCE IN THIS
ASPECT OF THE DISPOSITION BECAUSE OF FACTORS TO WHICH I ADVERT BELOW. 

THE COURT AFFIRMS AS WELL TWO APPEALS, TRAVIA V. LOMENZO, NO. 191,
AND SCREVANE V. LOMENZO, NO. 449, FROM THE DISTRICT COURT'S ORDER OF
MAY 24, 1965, WHICH SPECIFICALLY ORDERED A NOVEMBER 1965 SPECIAL
ELECTION UNDER PLAN A AFTER THE NEW YORK COURT OF APPEALS HAD ALREADY
DECLARED THAT PLAN TO BE IN VIOLATION OF THE STATE CONSTITUTION.  (FN5)
ON JUNE 1, 1965, THIS COURT DENIED A MOTION TO STAY THE ORDER AND TO
ACCELERATE THE APPEAL, TRAVIA V. LOMENZO, 381 U.S. 431.  IN DISSENT I
NOTED THAT A FEDERAL COURT ORDER THAT A STATE ELECTION BE HELD UNDER A
PLAN DECLARED INVALID UNDER THE STATE CONSTITUTION BY THE HIGHEST COURT
OF THAT STATE SURELY PRESENTED ISSUES OF FAR-REACHING IMPORTANCE FOR
THE SMOOTH FUNCTIONING OF OUR FEDERAL SYSTEM, WHICH WERE DESERVING OF
PLENARY CONSIDERATION BY THIS COURT.  I WOULD HAVE ACCELERATED THE
APPEAL, AND BUT FOR THE ACTION OF THIS COURT IN DENYING THE STAY WHICH
WAS SOUGHT I WOULD HAVE GRANTED THE FURTHER APPLICATION FOR SUCH A STAY
THAT WAS MADE TO ME DURING THE SUMMER.  TRAVIA V. LOMENZO, NO. 191,
MEMORANDUM OF MR. JUSTICE HARLAN, JULY 16, 1965, 86 S. CT. 7.  I NOW
ACQUIESCE IN THE AFFIRMANCE (FN6) AS I CAN SEE NO SATISFACTORY WAY TO
HEAL, AT THIS JUNCTURE, THE WOUNDS TO FEDERAL-STATE RELATIONS CAUSED BY
THE DISTRICT COURT'S ORDER WITHOUT INFLICTING EVEN GREATER ONES. 

THE UPSHOT OF WHAT IS DONE TODAY IS, THEN, TO SUSPEND NEW YORK'S 150
MEMBER CONSTITUTIONAL PROVISION FOR THE ONE-YEAR DURATION OF THE 1966
LEGISLATURE, A RESULT TO WHICH I SUBSCRIBE ONLY UNDER THE COMPULSION OF
WHAT HAS GONE BEFORE IN THIS COURT. 

FN1  NEW YORK LAWS 1964, C. 976.  THE NEW YORK LEGISLATURE PASSED
THREE SUCCESSIVE AMENDMENTS TO C. 976:  NEW YORK LAWS 1964, CC. 977-978
("PLAN B"), C. 979 ("PLAN C"), AND C. 981 ("PLAN D").  THE DISTRICT
COURT IN THE SAME OPINION THAT FOUND PLAN A CONSTITUTIONAL, WMCA, INC,
V. LOMENZO, 238 F. SUPP. 916, ALSO HELD THAT PLANS B, C, AND D DID NOT
MEET THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT, AS INTERPRETED IN
REYNOLDS V. SIMS, 377 U.S. 533, AND WMCA, INC. V. LOMENZO, 377 U.S.
633.  THIS COURT IS RETAINING JURISDICTION IN THE APPEAL FROM THOSE
DETERMINATIONS, LOMENZO V. WMCA, INC., NO. 81. 

FN2  CIVIL NO. 61-1559, U.S.D.C.S.D.N.Y. THE ORDER OF THE DISTRICT
COURT WAS AFFIRMED SUMMARILY BY THIS COURT, HUGHES V. WMCA, INC., 379
U.S. 694, MR. JUSTICE CLARK AND I DISSENTING. 

FN3  IN RE ORANS, 15 N.Y.2D 339, 206 N.E.2D 854.  THE COURT OF
APPEALS HELD PLANS A, B,C, AND D INVALID UNDER ART. III, SEC. 2, OF THE
NEW YORK CONSTITUTION WHICH STATES, "THE ASSEMBLY SHALL CONSIST OF ONE
HUNDRED AND FIFTY MEMBERS."  ALL FOUR PLANS PROVIDED FOR LARGER
ASSEMBLIES:  PLAN A, 165 ASSEMBLYMEN, C. 976, SEC. 301; PLAN B, 180
ASSEMBLYMEN, C. 977, SEC. 301; PLAN C, 186 ASSEMBLYMEN (HAVING A TOTAL
OF 165 VOTES), C. 979, SEC. 301; PLAN D, 174 ASSEMBLYMEN (HAVING A
TOTAL OF 150 VOTES), C. 981, SEC. 301. 

FN4  THE COURT'S DISMISSAL OF THIS PART OF THE APPEAL IN NO. 319
NECESSARILY APPROVES THE COURT OF APPEALS' HOLDING THAT FROM THE
STANDPOINT OF FEDERAL LAW THE 150-MEMBER REQUIREMENT OF THE NEW YORK
CONSTITUTION WAS NOT AN INTEGRAL PART OF THE APPORTIONMENT SCHEME
INVALIDATED IN WMCA, INC. V. LOMENZO, 377 U.S. 633. 

FN5  THE MAY 24, 1965, ORDER OF THE DISTRICT COURT WAS IN ORAL FORM. 
A WRITTEN OPINION WAS HANDED DOWN ON JULY 13, 1965, CIVIL NO. 61-1559,
EMBODYING THE MAY ORDER. 

FN6  A DECISION ON THE MERITS BY THIS COURT IS UNAVOIDABLE.  THE
APPEAL FROM THE THREE-JUDGE DISTRICT COURT IS BROUGHT HERE UNDER 28
U.S.C. SEC. 1253 (1964 ED.), AND I DO NOT BELIEVE THIS CASE, OR A
FORTIORI ANY OF THE OTHER NEW YORK REAPPORTIONMENT CASES PRESENTLY
BEFORE THE COURT, IS MOOT.  SURELY IF THIS COURT NOW HELD THAT THE
DISTRICT COURT ERRED IN ORDERING THE ELECTION UNDER PLAN A, IT HAS THE
POWER, FOR EXAMPLE, TO ENJOIN THE NOVEMBER 2 ELECTION AND TO ORDER THE
DISTRICT COURT TO ARRANGE FOR YET ANOTHER ELECTION AND FOR OTHER
APPROPRIATE TEMPORARY REAPPORTIONMENT RELIEF.  THE VERY GREAT
DIFFICULTIES IMPLICIT IN AFFORDING ANY SUCH RELIEF AT THIS LATE STATE
GO TO THE QUESTION OF ITS DESIRABILITY, NOT TO THE MOOTNESS OF THE
UNDERLYING ACTION. 
..END :








TRAVIA V. LOMENZO 382 U.S. 9 


NO. 191.  DECIDED OCTOBER 11, 1965.  - AFFIRMED. 


TRAVIA ET AL. V. LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR CONCURRING OPINION OF MR. JUSTICE HARLAN, SEE NO. 85, WMCA, INC.,
ET AL. V. LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL., ANTE, P. 4. 

..END :








ROCKEFELLER V. ORANS 382 U.S. 10 


NO. 319.  DECIDED OCTOBER 11, 1965.  - 15 N.Y.2D 339, 206 N.E.2D 854,
APPEAL DISMISSED. 


ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL. V. ORANS ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

ON APRIL 14, 1965, THE NEW YORK COURT OF APPEALS RULED THAT THE NEW
YORK LAWS OF 1964, CC.  976, 977, 978, 979, 981, WERE INVALID UNDER THE
NEW YORK CONSTITUTION, ART. III, SEC. 2.  ON JULY 13, 1965, THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ENJOINED
INTERFERENCE WITH AN ELECTION OF MEMBERS OF THE NEW YORK LEGISLATURE TO
BE HELD ON NOVEMBER 2, 1965, BASED ON "THE SCHEME SET FORTH" IN THE NEW
YORK LAWS OF 1964, C. 976.  INSOFAR AS THE DECISION OF THE COURT OF
APPEALS HAS BEEN SUPERSEDED BY THE ORDER OF THE DISTRICT COURT, THE
APPEAL IS DISMISSED.  IN ALL OTHER RESPECTS, THE APPEAL IS DISMISSED
FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR CONCURRING OPINION OF MR. JUSTICE HARLAN, SEE NO. 85, WMCA, INC.,
ET AL. V. LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL., ANTE, P. 4. 

..END :
























SCREVANE V. LOMENZO 382 U.S. 11 


NO. 449.  DECIDED OCTOBER 11, 1965.  - AFFIRMED. 


SCREVANE, PRESIDENT OF CITY COUNCIL OF CITY OF NEW YORK, ET AL. V.
LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOURTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FORTAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR CONCURRING OPINION OF MR. JUSTICE HARLAN, SEE NO. 85, WMCA, INC.,
ET AL. V. LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL., ANTE, P. 4. 

..END :










JOBE V. CITY OF ERLANGER 382 U.S. 12 


NO. 62.  DECIDED OCTOBER 11, 1965.  - 383 S.W.2D 675, APPEAL DISMISSED. 


JOBE ET AL. V. CITY OF ERLANGER. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :















ALUMINUM CO. OF AMERICA V. UNITED STATES 382 U.S. 12 


NO. 84.  DECIDED OCTOBER 11, 1965.  - 233 F. SUPP. 718; 247 F. SUPP.
308, AFFIRMED. 


ALUMINUM CO. OF AMERICA ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















HERALD PUBLISHING CO. V. WHITEHEAD-DONOVAN CORP. 382 U.S. 13 


NO. 156.  DECIDED OCTOBER 11, 1965.  - 62 CAL. 2D 185, 397 P.2D 426,
APPEAL DISMISSED. 


HERALD PUBLISHING CO. V. WHITEHEAD-DONOVAN CORP. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














BOWMAN V. BUILDING COMMISSION 382 U.S. 13 


NO. 170.  DECIDED OCTOBER 11, 1965.  - 31 ILL. 2D 575, 203 N.E.2D 129,
APPEAL DISMISSED AND CERTIORARI DENIED. 


BOWMAN V. LAKE COUNTY PUBLIC BUILDING COMMISSION ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PURE-VAC V. MISSISSIPPI 382 U.S. 14 


NO. 179.  DECIDED OCTOBER 11, 1965.  - 251 MISS.  457, 170 SO. 2D 274,
APPEAL DISMISSED. 


PURE-VAC DAIRY PRODUCTS CORP. V. MISSISSIPPI EX REL. PATTERSON, ATTORNEY
GENERAL. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















FILISTER V. MINNEAPOLIS 382 U.S. 14 


NO. 184.  DECIDED OCTOBER 11, 1965.  - 270 MINN. 53, 133 N.W.2D 500,
APPEAL DISMISSED AND CERTIORARI DENIED. 


FILISTER ET AL. V. CITY OF MINNEAPOLIS ET AL. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

PER CURIAM. 

THE MOTION TO SUBSTITUTE KATHRINE E. BLISS IN PLACE OF THE J. J.
BLISS AS A PARTY APPELLANT IS GRANTED. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :













GRIFFING V. BIANCHI 382 U.S. 15 


NO. 206.  DECIDED OCTOBER 11, 1965.  - 238 F. SUPP. 997, APPEAL
DISMISSED. 


GRIFFING ET AL., CONSTITUTING BOARD OF SUPERVISORS OF SUFFOLK COUNTY,
NEW YORK V. BIANCHI ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 
..END :















JONES V. MCFADDIN 382 U.S. 15 


NO. 226.  DECIDED OCTOBER 11, 1965.  - 382 S.W.2D 277, APPEAL
DISMISSED. 


JONES ET AL. V. MCFADDIN ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, SIXTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













BERRY V. STATE TAX COMMISSION 382 U.S. 16 


NO. 229.  DECIDED OCTOBER 11, 1965.  - 241 ORE.  580, 397 P.2D 780, 399
P.2D 164, APPEAL DISMISSED. 


BERRY V. STATE TAX COMMISSION. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














SEACAT V. BABINEAUX 382 U.S. 16 


NO. 283.  DECIDED OCTOBER 11, 1965.  - 170 SO. 2D 518, APPEAL
DISMISSED. 


SEACAT MARINE DRILLING CO. ET AL. V. BABINEAUX. 

APPEAL FROM THE COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT THE APPEAL SHOULD BE
DISMISSED FOR WANT OF JURISDICTION. 
..END :















UNITED STATES V. ASSOCIATED GENERAL CONTRACTORS 382 U.S. 17 


NO. 119.  DECIDED OCTOBER 11, 1965.  - 238 F. SUPP. 273, REVERSED. 


UNITED STATES V. NEW ORLEANS CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF
AMERICA, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  TIMES-PICAYUNE PUBLISHING CO. V. UNITED
STATES, 345 U.S. 594, AT 623-624; UNITED STATES V. SOCONY-VACUUM OIL
CO., INC., 310 U.S. 150, AT 226. 
..END :















HOURIHAN V. MAHONEY 382 U.S. 17 


NO. 342, MISC.  DECIDED OCTOBER 11, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HOURIHAN V. MAHONEY. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MAINE. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MADDOX V. WILLIS 382 U.S. 18 


NO. 308.  DECIDED OCTOBER 11, 1965.  - APPEAL DISMISSED. 


MADDOX V. WILLIS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 
..END :

















EL PASO ELEC. CO. V. CALVERT 382 U.S. 18 


NO. 395.  DECIDED OCTOBER 11, 1965.  - 385 S.W.2D 542, APPEAL
DISMISSED. 


EL PASO ELECTRIC CO. V. CALVERT ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, THIRD SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF SUBSTANTIAL FEDERAL QUESTION. 
..END :
















ALAMO EXPRESS V. UNITED STATES 382 U.S. 19 


NO. 357.  DECIDED OCTOBER 11, 1965.  - 239 F. SUPP. 694, AFFIRMED. 


ALAMO EXPRESS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















O'CONNOR V. OHIO 382 U.S. 19 


NO. 281, MISC.  DECIDED OCTOBER 11, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


O'CONNOR V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PRICE V. WEST VIRGINIA 382 U.S. 20 


NO. 144.  DECIDED OCTOBER 11, 1965.  - APPEAL DISMISSED. 


PRICE, DBA HOWARD PRICE & CO. V. STATE ROAD COMMISSION OF WEST VIRGINIA
ET AL. 

APPEAL FROM THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED IN LIGHT
OF THE REPRESENTATIONS OF THE ATTORNEY GENERAL OF WEST VIRGINIA THAT
THERE IS OPEN TO THE APPELLANT AN EFFECTIVE STATE PROCEDURE OF WHICH HE
HAS NOT AVAILED HIMSELF. 
..END :















PUGACH V. NEW YORK 382 U.S. 20 


NO. 12, MISC.  DECIDED OCTOBER 11, 1965.  - 15 N.Y.2D 65, 204 N.E.2D
176, APPEAL DISMISSED AND CERTIORARI DENIED. 


PUGACH V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT CERTIORARI SHOULD BE
GRANTED. 
..END :













BRAADT V. NEW YORK CITY 382 U.S. 21 


NO. 358.  DECIDED OCTOBER 11, 1965.  - 15 N.Y.2D 875, 206 N.E.2D 349,
APPEAL DISMISSED AND CERTIORARI DENIED. 


BRAADT V. CITY OF NEW YORK, DEPARTMENT OF SANITATION, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CASSESE V. PEYTON 382 U.S. 21 


NO. 137, MISC.  DECIDED OCTOBER 11, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


CASSESE V. PEYTON, PENITENTIARY SUPERINTENDENT. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE PAPERS
WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF CERTIORARI,
CERTIORARI IS DENIED. 
..END :
















MALLORY V. NORTH CAROLINA 382 U.S. 22 


NO. 81, MISC.  DECIDED OCTOBER 11, 1965.  - 263 N.C. 536, 139 S.E.2D
870, APPEAL DISMISSED AND CERTIORARI DENIED. 


MALLORY ET AL. V. NORTH CAROLINA. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















KADANS V. DICKERSON 382 U.S. 22 


NO. 399, MISC.  DECIDED OCTOBER 11, 1965.  - APPEAL DISMISSED. 


KADANS V. DICKERSON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEVADA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 
..END :

















GRANIERI V. SALT LAKE CITY 382 U.S. 23 


NO. 202, MISC.  DECIDED OCTOBER 11, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


GRANIERI V. SALT LAKE CITY. 

APPEAL FROM THE SUPREME COURT OF UTAH. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















KASHARIAN V. HALPERN 382 U.S. 23 


NO. 389, MISC.  DECIDED OCTOBER 11, 1965.  - APPEAL DISMISSED. 


KASHARIAN V. HALPERN ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :


















THOMPSON V. NEW YORK 382 U.S. 24 


NO. 248, MISC.  DECIDED OCTOBER 11, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


THOMPSON V. CITY AND STATE OF NEW YORK. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















UNITED STATES V. BROWN 381 U.S. 437 


NO. 399.  ARGUED MARCH 29, 1965.  - DECIDED JUNE 7, 1965.  - 334 F.2D
488, AFFIRMED. 


RESPONDENT WAS CONVICTED UNDER SEC. 504 OF THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT OF 1959, WHICH MAKES IT A CRIME FOR ONE
WHO BELONGS TO THE COMMUNIST PARTY OR WHO HAS BEEN A MEMBER THEREOF
DURING THE PRECEDING FIVE YEARS WILFULLY TO SERVE AS A MEMBER OF THE
EXECUTIVE BOARD OF A LABOR ORGANIZATION.  THE COURT OF APPEALS
REVERSED, HOLDING SEC. 504 VIOLATIVE OF THE FIRST AND FIFTH
AMENDMENTS.  HELD:  SECTION 504 CONSTITUTES A BILL OF ATTAINDER AND IS
THEREFORE UNCONSTITUTIONAL.  PP. 441-462. 

(A)  THE BILL OF ATTAINDER CLAUSE, ART. I, SEC. 9, CL. 3, WAS
INTENDED TO IMPLEMENT THE SEPARATION OF POWERS AMONG THE THREE BRANCHES
OF THE GOVERNMENT BY GUARDING AGAINST THE LEGISLATIVE EXERCISE OF
JUDICIAL POWER.  PP. 441-446. 

(B)  THE BILL OF ATTAINDER CLAUSE IS TO BE LIBERALLY CONSTRUED IN THE
LIGHT OF ITS PURPOSE TO PREVENT LEGISLATIVE PUNISHMENT OF DESIGNATED
PERSONS OR GROUPS.  CUMMINGS V. MISSOURI, 4 WALL.  277; EX PARTE
GARLAND, 4 WALL.  333; UNITED STATES V. LOVETT, 328 U.S. 303.  PP.  447
449. 

(C)  IN DESIGNATING COMMUNIST PARTY MEMBERS AS THOSE PERSONS WHO
CANNOT HOLD UNION OFFICE, CONGRESS HAS EXCEEDED ITS COMMERCE CLAUSE
POWER TO ENACT GENERALLY APPLICABLE LEGISLATION DISQUALIFYING FROM
POSITIONS AFFECTING INTERSTATE COMMERCE PERSONS WHO MAY USE SUCH
POSITIONS TO CAUSE POLITICAL STRIKES.  PP. 449-452. 

(D)  SECTION 504 IS DISTINGUISHABLE FROM SUCH CONFLICT-OF-INTEREST
STATUTES AS SEC. 32 OF THE BANKING ACT, WHERE CONGRESS WAS LEGISLATING
WITH RESPECT TO GENERAL CHARACTERISTICS RATHER THAN WITH RESPECT TO THE
MEMBERS OF A SPECIFIC GROUP.  PP. 453-455. 

(E)  THE DESIGNATION OF COMMUNIST PARTY MEMBERSHIP CANNOT BE
JUSTIFIED AS AN ALTERNATIVE, "SHORTHAND" EXPRESSION FOR THE
CHARACTERISTICS WHICH RENDER MEN LIKELY TO INCITE POLITICAL STRIKES. 
PP. 455-456. 

(F)  A STATUTE WHICH INFLICTS ITS DEPRIVATION UPON NAMED OR DESCRIBED
PERSONS OR GROUPS CONSTITUTES A BILL OF ATTAINDER WHETHER ITS AIM IS
RETRIBUTIVE, PUNISHING PAST ACTS, OR PREVENTIVE, DISCOURAGING FUTURE
CONDUCT.  IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382,
WHERE THE COURT UPHELD SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT,
THE PREDECESSOR OF SEC. 504, THE COURT ERRONEOUSLY ASSUMED THAT ONLY A
LAW VISITING RETRIBUTION FOR PAST ACTS COULD CONSTITUTE A BILL OF
ATTAINDER, AND MISREAD THE STATUTE INVOLVED IN UNITED STATES V. LOVETT,
328 U.S. 303, WHICH IT SOUGHT TO DISTINGUISH FROM SEC. 9(H), AS BEING
IN THAT CATEGORY.  PP. 456-460. 

(G)  THE LEGISLATIVE SPECIFICATION OF THOSE TO WHOM THE ENACTED
SANCTION IS TO APPLY INVALIDATES A PROVISION AS A BILL OF ATTAINDER
WHETHER THE INDIVIDUALS ARE DESIGNATED BY NAME AS IN LOVETT OR BY
DESCRIPTION AS HERE.  PP. 461-462. 

UNITED STATES V. BROWN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE REVIEW FOR THE FIRST TIME A CONVICTION UNDER SEC. 504
OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, WHICH
MAKES IT A CRIME FOR A MEMBER OF THE COMMUNIST PARTY TO SERVE AS AN
OFFICER OR (EXCEPT IN CLERICAL OR CUSTODIAL POSITIONS) AS AN EMPLOYEE
OF A LABOR UNION.  (FN1)  SECTION 504, THE PURPOSE OF WHICH IS TO
PROTECT THE NATIONAL ECONOMY BY MINIMIZING THE DANGER OF POLITICAL
STRIKES, (FN2) WAS ENACTED TO REPLACE SEC.  9(H) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED BY THE TAFT-HARTLEY ACT, WHICH CONDITIONED A
UNION'S ACCESS TO THE NATIONAL LABOR RELATIONS BOARD UPON THE FILING OF
AFFIDAVITS BY ALL OF THE UNION'S OFFICERS ATTESTING THAT THEY WERE NOT
MEMBERS OF OR AFFILIATED WITH THE COMMUNIST PARTY.  (FN3) 

RESPONDENT HAS BEEN A WORKING LONGSHOREMAN ON THE SAN FRANCISCO
DOCKS, AND AN OPEN AND AVOWED COMMUNIST, FOR MORE THAN A QUARTER OF A
CENTURY.  HE WAS ELECTED TO THE EXECUTIVE BOARD OF LOCAL 10 OF THE
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION FOR CONSECUTIVE
ONE-YEAR TERMS IN 1959, 1960, AND 1961.  ON MAY 24, 1961, RESPONDENT
WAS CHARGED IN A ONE-COUNT INDICTMENT RETURNED IN THE NORTHERN DISTRICT
OF CALIFORNIA WITH "KNOWINGLY AND WILFULLY SERVING AS A MEMBER OF AN
EXECUTIVE BOARD OF A LABOR ORGANIZATION  ...  WHILE A MEMBER OF THE
COMMUNIST PARTY, IN WILFUL VIOLATION OF TITLE 29, U.S.C.  SECTION
504."  IT WAS NEITHER CHARGED NOR PROVEN THAT RESPONDENT AT ANY TIME
ADVOCATED OR SUGGESTED ILLEGAL ACTIVITY BY THE UNION, OR PROPOSED A
POLITICAL STRIKE.  (FN4)  THE JURY FOUND RESPONDENT GUILTY, AND HE WAS
SENTENCED TO SIX MONTHS' IMPRISIONMENT.  THE COURT OF APPEALS FOR THE
NINTH CIRCUIT, SITTING EN BANC, REVERSED AND REMANDED WITH INSTRUCTIONS
TO SET ASIDE THE CONVICTION AND DISMISS THE INDICTMENT, HOLDING THAT
SEC. 504 VIOLATES THE FIRST AND FIFTH AMENDMENTS TO THE CONSTITUTION. 
334 F.2D 488.  WE GRANTED CERTIORARI, 379 U.S. 899. 

RESPONDENT URGES - IN ADDITION TO THE GROUNDS RELIED ON BY THE COURT
BELOW - THAT THE STATUTE UNDER WHICH HE WAS CONVICTED IS A BILL OF
ATTAINDER, AND THEREFORE VIOLATES ART. I, SEC. 9, OF THE CONSTITUTION. 
(FN5)  WE AGREE THAT SEC. 504 IS VOID AS A BILL OF ATTAINDER AND AFFIRM
THE DECISION OF THE COURT OF APPEALS ON THE BASIS.  WE THEREFORE FIND
IT UNNECESSARY TO CONSIDER THE FIRST AND FIFTH AMENDMENT ARGUMENTS. 

                           I. 

THE PROVISIONS OUTLAWING BILLS OF ATTAINDER WERE ADOPTED BY THE
CONSTITUTIONAL CONVENTION UNANIMOUSLY, AND WITHOUT DEBATE.  (FN6) 

"NO BILL OF ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED BY THE
CONGRESS."  ART. I, SEC.  9, CL. 3.

"NO STATE SHALL  ...  PASS ANY BILL OF ATTAINDER, EX POST FACTO LAW,
OR LAW IMPAIRING THE OBLIGATION OF CONTRACTS  ...  ."  ART. I, SEC.
10. 

A LOGICAL STARTING PLACE FOR AN INQUIRY INTO THE MEANING OF THE
PROHIBITION IS ITS HISTORICAL BACKGROUND.  THE BILL OF ATTAINDER, A
PARLIAMENTARY ACT SENTENCING TO DEATH ONE OR MORE SPECIFIC PERSONS, WAS
A DEVICE OFTEN RESORTED TO IN SIXTEENTH, SEVENTEENTH AND EIGHTEENTH
CENTURY ENGLAND FOR DEALING WITH PERSONS WHO HAD ATTEMPTED, OR
THREATENED TO ATTEMPT, TO OVERTHROW THE GOVERNMENT.  (FN7)  IN ADDITION
TO THE DEATH SENTENCE, ATTAINDER GENERALLY CARRIED WITH IT A
"CORRUPTION OF BLOOD," WHICH MEANT THAT THE ATTAINTED PARTY'S HEIRS
COULD NOT INHERIT HIS PROPERTY.  (FN8)  THE "BILL OF PAINS AND
PENALTIES" WAS IDENTICAL TO THE BILL OF ATTAINDER, EXCEPT THAT IT
PRESCRIBED A PENALTY SHORT OF DEATH, (FN9) E.G., BANISHMENT, (FN10)
DEPRIVATION OF THE RIGHT TO VOTE, (FN11) OR EXCLUSION OF THE DESIGNATED
PARTY'S SONS FROM PARLIAMENT.  (FN12)  MOST BILLS OF ATTAINDER AND
BILLS OF PAINS AND PENALTIES NAMED THE PARTIES TO WHOM THEY WERE TO
APPLY; A FEW, HOWEVER, SIMPLY DESCRIBED THEM.  (FN13)  WHILE SOME LEFT
THE DESIGNATED PARTIES A WAY OF ESCAPING THE PENALTY, OTHERS DID NOT. 
(FN14)  THE USE OF BILLS OF ATTAINDER AND BILLS OF PAINS AND PENALTIES
WAS NOT LIMITED TO ENGLAND.  DURING THE AMERICAN REVOLUTION, THE
LEGISLATURES OF ALL THIRTEEN STATES PASSED STATUTES DIRECTED AGAINST
THE TORIES; AMONG THESE STATUTES WERE A LARGE NUMBER OF BILLS OF
ATTAINDER AND BILLS OF PAINS AND PENALTIES.  (FN15) 

WHILE HISTORY THUS PROVIDES SOME GUIDELINES, THE WIDE VARIATION IN
FORM, PURPOSE AND EFFECT OF ANTE-CONSTITUTION BILLS OF ATTAINDER
INDICATES THAT THE PROPER SCOPE OF THE BILL OF ATTAINDER CLAUSE, AND
ITS RELEVANCE TO CONTEMPORARY PROBLEMS, MUST ULTIMATELY BE SOUGHT BY
ATTEMPTING TO DISCERN THE REAONS FOR ITS INCLUSION IN THE CONSTITUTION,
AND THE EVILS IT WAS DESIGNED TO ELIMINATE.  THE BEST AVAILABLE
EVIDENCE, THE WRITINGS OF THE ARCHITECTS OF OUR CONSTITUTIONAL SYSTEM,
INDICATES THAT THE BILL OF ATTAINDER CLAUSE WAS INTENDED NOT AS A
NARROW, TECHNICAL (AND THEREFORE SOON TO BE OUTMODED) PROHIBITION, BUT
RATHER AS AN IMPLEMENTATION OF THE SEPARATION OF POWERS, A GENERAL
SAFEGUARD AGAINST LEGISLATIVE EXERCISE OF THE JUDICIAL FUNCTION, OR
MORE SIMPLY - TRIAL BY LEGISLATURE. 

THE CONSTITUTION DIVIDES THE NATIONAL GOVERNMENT INTO THREE BRANCHES
LEGISLATIVE, EXECUTIVE AND JUDICIAL.  THIS "SEPARATION OF POWERS" WAS
OBVIOUSLY NOT INSTITUTED WITH THE IDEA THAT IT WOULD PROMOTE
GOVERNMENTAL EFFICIENCY.  IT WAS, ON THE CONTRARY, LOOKED TO AS A
BULWARK AGAINST TYRANNY.  FOR IF GOVERNMENTAL POWER IS FRACTIONALIZED,
IF A GIVEN POLICY CAN BE IMPLEMENTED ONLY BY A COMBINATION OF
LEGISLATIVE ENACTMENT, JUDICIAL APPLICATION, AND EXECUTIVE
IMPLEMENTATION, NO MAN OR GROUP OF MEN WILL BE ABLE TO IMPOSE ITS
UNCHECKED WILL.  JAMES MADISON WROTE: 

"THE ACCUMULATION OF ALL POWERS, LEGISLATIVE, EXECUTIVE, AND
JUDICIARY, IN THE SAME HANDS, WHETHER OF ONE, A FEW, OR MANY, AND
WHETHER HEREDITARY, SELF-APPOINTED, OR ELECTIVE, MAY JUSTLY BE
PRONOUNCED THE VERY DEFINITION OF TYRANNY."  (FN16) 

THE DOCTRINE OF SEPARATED POWERS IS IMPLEMENTED BY A NUMBER OF
CONSTITUTIONAL PROVISIONS, SOME OF WHICH ENTRUST CERTAIN JOBS
EXCLUSIVELY TO CERTAIN BRANCHES, WHILE OTHERS SAY THAT A GIVEN TASK IS
NOT TO BE PERFORMED BY A GIVEN BRANCH.  FOR EXAMPLE, ARTICLE III'S
GRANT OF "THE JUDICIAL POWER OF THE UNITED STATES" TO FEDERAL COURTS
HAS BEEN INTERPRETED BOTH AS A GRANT OF EXCLUSIVE AUTHORITY OVER
CERTAIN AREAS, MARBURY V. MADISON, 1 CRANCH 137, AND AS A LIMITATION
UPON THE JUDICIARY, A DECLARATION THAT CERTAIN TASKS ARE NOT TO BE
PERFORMED BY COURTS, E.G., MUSKRAT V. UNITED STATES, 219 U.S. 346. 
COMPARE YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579. 

THE AUTHORS OF THE FEDERALIST PAPERS TOOK THE POSITION THAT ALTHOUGH
UNDER SOME SYSTEMS OF GOVERNMENT (MOST NOTABLY THE ONE FROM WHICH THE
UNITED STATES HAD JUST BROKEN), THE EXECUTIVE DEPARTMENT IS THE BRANCH
MOST LIKELY TO FORGET THE BOUNDS OF ITS AUTHORITY, "IN A REPRESENTATIVE
REPUBLIC  ...  WHERE THE LEGISLATIVE POWER IS EXERCISED BY AN ASSEMBLY
...  WHICH IS SUFFICIENTLY NUMEROUS TO FEEL ALL THE PASSIONS WHICH
ACTUATE A MULTITUDE; YET NOT SO NUMEROUS AS TO BE INCAPABLE OF PURSUING
THE OBJECTS OF ITS PASSIONS  ...  ," BARRIERS HAD TO BE ERECTED TO
ENSURE THAT THE LEGISLATURE WOULD NOT OVERSTEP THE BOUNDS OF ITS
AUTHORITY AND PERFORM THE FUNCTIONS OF THE OTHER DEPARTMENTS.  (FN17)
THE BILL OF ATTAINDER CLAUSE WAS REGARDED AS SUCH A BARRIER.  ALEXANDER
HAMILTON WROTE: 

"NOTHING IS MORE COMMON THAN FOR A FREE PEOPLE, IN TIMES OF HEAT AND
VIOLENCE, TO GRATIFY MOMENTARY PASSIONS, BY LETTING INTO THE GOVERNMENT
PRINCIPLES AND PRECEDENTS WHICH AFTERWARDS PROVE FATAL TO THEMSELVES. 
OF THIS KIND IS THE DOCTRINE OF DISQUALIFICATION, DISFRANCHISEMENT, AND
BANISHMENT BY ACTS OF THE LEGISLATURE.  THE DANGEROUS CONSEQUENCES OF
THIS POWER ARE MANIFEST.  IF THE LEGISLATURE CAN DISFRANCHISE ANY
NUMBER OF CITIZENS AT PLEASURE BY GENERAL DESCRIPTIONS, IT MAY SOON
CONFINE ALL THE VOTES TO A SMALL NUMBER OF PARTISANS, AND ESTABLISH AN
ARISTOCRACY OR AN OLIGARCHY; IF IT MAY BANISH AT DISCRETION ALL THOSE
WHOM PARTICULAR CIRCUMSTANCES RENDER OBNOXIOUS, WITHOUT HEARING OR
TRIAL, NO MAN CAN BE SAFE, NOR KNOW WHEN HE MAY BE THE INNOCENT VICTIM
OF A PREVAILING FACTION.  THE NAME OF LIBERTY APPLIED TO SUCH A
GOVERNMENT, WOULD BE A MOCKERY OF COMMON SENSE."  (FN18) 

THUS THE BILL OF ATTAINDER CLAUSE NOT ONLY WAS INTENDED AS ONE
IMPLEMENTATION OF THE GENERAL PRINCIPLE OF FRACTIONALIZED POWER, BUT
ALSO REFLECTED THE FRAMERS' BELIEF THAT THE LEGISLATIVE BRANCH IS NOT
SO WELL SUITED AS POLITICALLY INDEPENDENT JUDGES AND JURIES TO THE TASK
OF RULING UPON THE BLAMEWORTHINESS OF, AND LEVYING APPROPRIATE
PUNISHMENT UPON, SPECIFIC PERSONS. 

"EVERY ONE MUST CONCEDE THAT A LEGISLATIVE BODY, FROM ITS NUMBERS AND
ORGANIZATION, AND FROM THE VERY INTIMATE DEPENDENCE OF ITS MEMBERS UPON
THE PEOPLE, WHICH RENDERS THEM LIABLE TO BE PECULIARLY SUSCEPTIBLE TO
POPULAR CLAMOR, IS NOT PROPERLY CONSTITUTED TO TRY WITH COOLNESS,
CAUTION, AND IMPARTIALITY A CRIMINAL CHARGE, ESPECIALLY IN THOSE CASES
IN WHICH THE POPULAR FEELING IS STRONGLY EXCITED, - THE VERY CLASS OF
CASES MOST LIKELY TO BE PROSECUTED BY THIS MODE."  (FN19) 

BY BANNING BILLS OF ATTAINDER, THE FRAMERS OF THE CONSTITUTION SOUGHT
TO GUARD AGAINST SUCH DANGERS BY LIMITING LEGISLATURES TO THE TASK OF
RULE-MAKING.  "IT IS THE PECULIAR PROVINCE OF THE LEGISLATURE TO
PRESCRIBE GENERAL RULES FOR THE GOVERNMENT OF SOCIETY; THE APPLICATION
OF THOSE RULES TO INDIVIDUALS IN SOCIETY WOULD SEEM TO BE THE DUTY OF
OTHER DEPARTMENTS."  FLETCHER V. PECK, 6 CRANCH 87, 136.  (FN20)

                               II. 

IT IS IN THIS SPIRIT THAT THE BILL OF ATTAINDER CLAUSE WAS
CONSISTENTLY INTERPRETED BY THIS COURT - UNTIL THE DECISION IN AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, WHICH WE SHALL CONSIDER
HEREAFTER.  IN 1810, CHIEF JUSTICE MARSHALL, SPEAKING FOR THE COURT IN
FLETCHER V. PECK, 6 CRANCH 87, 138, STATED THAT "A BILL OF ATTAINDER
MAY AFFECT THE LIFE OF AN INDIVIDUAL, OR MAY CONFISCATE HIS PROPERTY,
OR MAY DO BOTH."  THIS MEANS, OF COURSE, THAT WHAT WERE KNOWN AT COMMON
LAW AS BILLS OF PAINS AND PENALTIES ARE OUTLAWED BY THE BILL OF
ATTAINDER CLAUSE.  THE COURT'S PRONOUNCEMENT THEREFORE SERVED NOTICE
THAT THE BILL OF ATTAINDER CLAUSE WAS NOT TO BE GIVEN A NARROW
HISTORICAL READING (WHICH WOULD EXCLUDE BILLS OF PAINS AND PENALTIES),
BUT WAS INSTEAD TO BE READ IN LIGHT OF THE EVIL THE FRAMERS HAD SOUGHT
TO BAR:  LEGISLATIVE PUNISHMENT, OF ANY FORM OR SEVERITY, OF
SPECIFICALLY DESIGNATED PERSONS OR GROUPS.  SEE ALSO OGDEN V. SAUNDERS,
12 WHEAT.  213, 286. 

THE APPROACH WHICH CHIEF JUSTICE MARSHALL HAD SUGGESTED WAS FOLLOWED
IN THE TWIN POST-CIVIL WAR CASES OF CUMMINGS V. MISSOURI, 4 WALL.  277,
AND EX PARTE GARLAND, 4 WALL.  333.  CUMMINGS INVOLVED THE
CONSTITUTIONALITY OF AMENDMENTS OF THE MISSOURI CONSTITUTION OF 1865
WHICH PROVIDED THAT NO ONE COULD ENGAGE IN A NUMBER OF SPECIFIED
PROFESSIONS (CUMMINGS WAS A PRIEST) UNLESS HE FIRST SWORE THAT HE HAD
TAKEN NO PART IN THE REBELLION AGAINST THE UNION.  AT ISSUE IN GARLAND
WAS A FEDERAL STATUTE WHICH REQUIRED ATTORNEYS TO TAKE A SIMILAR OATH
BEFORE THEY COULD PRACTICE IN FEDERAL COURTS.  THIS COURT STRUCK DOWN
BOTH PROVISIONS AS BILLS OF ATTAINDER ON THE GROUND THAT THEY WERE
LEGISLATIVE ACTS INFLICTING PUNISHMENT ON A SPECIFIC GROUP:  CLERGYMEN
AND LAWYERS WHO HAD TAKEN PART IN THE REBELLION AND THEREFORE COULD NOT
TRUTHFULLY TAKE THE OATH.  IN REACHING ITS RESULT, THE COURT
EMPHATICALLY REJECTED THE ARGUMENT THAT THE CONSTITUTIONAL PROHIBITION
OUTLAWED ONLY A CERTAIN CLASS OF LEGISLATIVELY IMPOSED PENALTIES: 

"THE DEPRIVATION OF ANY RIGHTS, CIVIL OR POLITICAL, PREVIOUSLY
ENJOYED, MAY BE PUNISHMENT, THE CIRCUMSTANCES ATTENDING AND THE CAUSES
OF THE DEPRIVATION DETERMINING THIS FACT.  DISQUALIFICATION FROM OFFICE
MAY BE PUNISHMENT, AS IN CASES OF CONVICTION UPON IMPEACHMENT. 
DISQUALIFICATION FROM THE PURSUITS OF A LAWFUL AVOCATION, OR FROM
POSITIONS OF TRUST, OR FROM THE PRIVILEGE OF APPEARING IN THE COURTS,
OR ACTING AS AN EXECUTOR, ADMINISTRATOR, OR GUARDIAN, MAY ALSO, AND
OFTEN HAS BEEN, IMPOSED AS PUNISHMENT."  4 WALL., AT 320. 

THE NEXT EXTENDED DISCUSSION OF THE BILL OF ATTAINDER CLAUSE (FN21)
CAME IN 1946, IN UNITED STATES V. LOVETT, 328 U.S. 303, WHERE THE COURT
INVALIDATED SEC. 304 OF THE URGENT DEFICIENCY APPROPRIATION ACT, 1943,
57 STAT. 431, 450, WHICH PROHIBITED PAYMENT OF FURTHER SALARY TO THREE
NAMED FEDERAL EMPLOYEES, (FN22) AS A BILL OF ATTAINDER. 

"LEGISLATIVE ACTS, NO MATTER WHAT THEIR FORM, THAT APPLY EITHER TO
NAMED INDIVIDUALS OR TO EASILY ASCERTAINABLE MEMBERS OF A GROUP IN SUCH
A WAY AS TO INFLICT PUNISHMENT ON THEM WITHOUT A JUDICIAL TRIAL ARE
BILLS OF ATTAINDER PROHIBITED BY THE CONSTITUTION  ...  .  THIS
PERMANENT PROSCRIPTION FROM ANY OPPORTUNITY TO SERVE THE GOVERNMENT IS
PUNISHMENT, AND OF A MOST SEVERE TYPE  ...  .  NO ONE WOULD THINK THAT
CONGRESS COULD HAVE PASSED A VALID LAW, STATING THAT AFTER
INVESTIGATION IT HAD FOUND LOVETT, DODD, AND WATSON 'GUILTY' OF THE
CRIME OF ENGAGING IN 'SUBVERSIVE ACTIVITIES,' DEFINED THAT TERM FOR THE
FIRST TIME, AND SENTENCED THEM TO PERPETUAL EXCLUSION FROM ANY
GOVERNMENT EMPLOYMENT.  SECTION 304, WHILE IT DOES NOT USE THAT
LANGUAGE, ACCOMPLISHES THAT RESULT."  ID., AT 315-316.  (FN23)
                             III. 

UNDER THE LINE OF CASES JUST OUTLINED, SEC. 504 OF THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT PLAINLY CONSTITUTES A BILL OF
ATTAINDER.  CONGRESS UNDOUBTEDLY POSSESSES POWER UNDER THE COMMERCE
CLAUSE TO ENACT LEGISLATION DESIGNED TO KEEP FROM POSITIONS AFFECTING
INTERSTATE COMMERCE PERSONS WHO MAY USE SUCH POSITIONS TO BRING ABOUT
POLITICAL STRIKES.  IN SEC. 504, HOWEVER, CONGRESS HAS EXCEEDED THE
AUTHORITY GRANTED IT BY THE CONSTITUTION.  THE STATUTE DOES NOT SET
FORTH A GENERALLY APPLICABLE RULE DECREEING THAT ANY PERSON WHO COMMITS
CERTAIN ACTS OR POSSESSES CERTAIN CHARACTERISTICS (ACTS AND
CHARACTERISTICS WHICH, IN CONGRESS' VIEW, MAKE THEM LIKELY TO INITIATE
POLITICAL STRIKES) SHALL NOT HOLD UNION OFFICE, AND LEAVE TO COURTS AND
JURIES THE JOB OF DECIDING WHAT PERSONS HAVE COMMITTED THE SPECIFIED
ACTS OR POSSESS THE SPECIFIED CHARACTERISTICS.  INSTEAD, IT DESIGNATES
IN NO UNCERTAIN TERMS THE PERSONS WHO POSSESS THE FEARED
CHARACTERISTICS AND THEREFORE CANNOT HOLD UNION OFFICE WITHOUT
INCURRING CRIMINAL LIABILITY - MEMBERS OF THE COMMUNIST PARTY.  (FN24) 

COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1,
LENDS SUPPORT TO OUR CONCLUSION.  THAT CASE INVOLVED AN APPEAL FROM AN
ORDER BY THE CONTROL BOARD ORDERING THE COMMUNIST PARTY TO REGISTER AS
A "COMMUNIST-ACTION ORGANIZATION," UNDER THE SUBVERSIVE ACTIVITIES
CONTROL ACT OF 1950, 64 STAT. 987, 50 U.S.C. SEC. 781 ET SEQ. (1958
ED.).  THE DEFINITION OF "COMMUNIST-ACTION ORGANIZATION" WHICH THE
BOARD IS TO APPLY IS SET FORTH IN SEC. 3 OF THE ACT: 

"ANY ORGANIZATION IN THE UNITED STATES  ...  WHICH (I) IS
SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED BY A FOREIGN
GOVERNMENT OR FOREIGN ORGANIZATION CONTROLLING THE WORLD COMMUNIST
MOVEMENT REFERRED TO IN SECTION 2 OF THIS TITLE, AND (II) OPERATES
PRIMARILY TO ADVANCE THE OBJECTIVES OF SUCH WORLD COMMUNIST MOVEMENT
...  ."  64 STAT. 989, 50 U.S.C. SEC. 782 (1958 ED.). 

A MAJORITY OF THE COURT REJECTED THE ARGUMENT THAT THE ACT WAS A BILL
OF ATTAINDER, REASONING THAT SEC. 3 DOES NOT SPECIFY THE PERSONS OR
GROUPS UPON WHICH THE DEPRIVATIONS SET FORTH IN THE ACT ARE TO BE
IMPOSED, BUT INSTEAD SETS FORTH A GENERAL DEFINITION.  ALTHOUGH THE
BOARD HAD DETERMINED IN 1953 THAT THE COMMUNIST PARTY WAS A "COMMUNIST
ACTION ORGANIZATION," THE COURT FOUND THE STATUTORY DEFINITION NOT TO
BE SO NARROW AS TO INSURE THAT THE PARTY WOULD ALWAYS COME WITHIN IT: 

"IN THIS PROCEEDING THE BOARD HAS FOUND, AND THE COURT OF APPEALS HAS
SUSTAINED ITS CONCLUSION, THAT THE COMMUNIST PARTY, BY VIRTUE OF THE
ACTIVITIES IN WHICH IT NOW ENGAGES, COMES WITHIN THE TERMS OF THE ACT. 
IF THE PARTY SHOULD AT ANY TIME CHOOSE TO ABANDON THESE ACTIVITIES,
AFTER IT IS ONCE REGISTERED PURSUANT TO SEC. 7, THE ACT PROVIDES
ADEQUATE MEANS OF RELIEF."  367 U.S., AT 87. 

THE ENTIRE COURT DID NOT SHARE THE VIEW OF THE MAJORITY THAT SEC. 3'S
DEFINITION CONSTITUTED RULE-MAKING RATHER THAN SPECIFICATION.  (FN25)
SEE ALSO GARNER V. LOS ANGELES BOARD, 341 U.S. 716, 723.  HOWEVER,
LANGUAGE INCORPORATED IN THE MAJORITY OPINION INDICATES THAT THERE WAS
AGREEMENT ON ONE POINT:  BY FOCUSING UPON "THE CRUCIAL CONSTITUTIONAL
SIGNIFICANCE OF WHAT CONGRESS DID WHEN IT REJECTED THE APPROACH OF
OUTLAWING THE PARTY BY NAME AND ACCEPTED INSTEAD A STATUTORY PROGRAM
REGULATING NOT ENUMERATED ORGANIZATIONS BUT DESIGNATED ACTIVITIES," 367
U.S., AT 84-85, THE MAJORITY CLEARLY IMPLIED THAT IF THE ACT HAD
APPLIED TO THE COMMUNIST PARTY BY NAME, IT WOULD HAVE BEEN A BILL OF
ATTAINDER: 

"THE ACT IS NOT A BILL OF ATTAINDER.  IT ATTACHES NOT TO SPECIFIED
ORGANIZATIONS BUT TO DESCRIBED ACTIVITIES IN WHICH AN ORGANIZATION MAY
OR MAY NOT ENGAGE  ...  .  THE SUBVERSIVE ACTIVITIES CONTROL ACT  ...
REQUIRES THE REGISTRATION ONLY OF ORGANIZATIONS WHICH, AFTER THE DATE
OF THE ACT, ARE FOUND TO BE UNDER THE DIRECTION, DOMINATION, OR CONTROL
OF CERTAIN FOREIGN POWERS AND TO OPERATE PRIMARILY TO ADVANCE CERTAIN
OBJECTIVES.  THIS FINDING MUST BE MADE AFTER FULL ADMINISTRATIVE
HEARING, SUBJECT TO JUDICIAL REVIEW WHICH OPENS THE RECORD FOR THE
REVIEWING COURT'S DETERMINATION WHETHER THE ADMINISTRATIVE FINDINGS AS
TO FACT ARE SUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE."  ID., AT
86-87.  (FN26) 

IN THIS CASE NO DISAGREEMENT OVER WHETHER THE STATUTE IN QUESTION
DESIGNATES A PARTICULAR ORGANIZATION CAN ARISE, FOR SEC. 504 IN TERMS
INFLICTS ITS DISQUALIFICATION UPON MEMBERS OF THE COMMUNIST PARTY.  THE
MOMENT SEC. 504 WAS ENACTED, RESPONDENT WAS GIVEN THE CHOICE OF
DECLINING A LEADERSHIP POSITION IN HIS UNION OR INCURRING CRIMINAL
LIABILITY. 

THE SOLICITOR GENERAL POINTS OUT THAT IN BOARD OF GOVERNORS V. AGNEW,
329 U.S. 441, THIS COURT APPLIED SEC. 32 OF THE BANKING ACT OF 1933,
WHICH PROVIDES: 

"NO OFFICER, DIRECTOR, OR EMPLOYEE OF ANY CORPORATION OR
UNINCORPORATED ASSOCIATION, NO PARTNER OR EMPLOYEE OF ANY PARTNERSHIP,
AND NO INDIVIDUAL, PRIMARILY ENGAGED IN THE ISSUE, FLOTATION,
UNDERWRITING, PUBLIC SALE, OR DISTRIBUTION, AT WHOLESALE OR RETAIL, OR
THROUGH SYNDICATE PARTICIPATION, OF STOCKS, BONDS, OR OTHER SIMILAR
SECURITIES, SHALL SERVE THE SAME TIME AS AN OFFICER, DIRECTOR, OR
EMPLOYEE OF ANY MEMBER BANK EXCEPT IN LIMITED CLASSES OF CASES IN WHICH
THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM MAY ALLOW SUCH
SERVICE BY GENERAL REGULATIONS WHEN IN THE JUDGMENT OF THE SAID BOARD
IT WOULD NOT UNDULY INFLUENCE THE INVESTMENT POLICIES OF SUCH MEMBER
BANK OR THE ADVICE IT GIVES ITS CUSTOMERS REGARDING INVESTMENTS." 
(FN27) 

HE SUGGESTS THAT FOR PURPOSES OF THE BILL OF ATTAINDER CLAUSE, SUCH
CONFLICT-OF-INTEREST LAWS (FN28) ARE NOT MEANINGFULLY DISTINGUISHABLE
FROM THE STATUTE BEFORE US.  WE FIND THIS ARGUMENT WITHOUT MERIT. 
FIRST, WE NOTE THAT SEC. 504, UNLIKE SEC. 32 OF THE BANKING ACT,
INFLICTS ITS DEPRIVATION UPON THE MEMBERS OF A POLITICAL GROUP THOUGHT
TO PRESENT A THREAT TO THE NATIONAL SECURITY.  AS WE NOTED ABOVE, SUCH
GROUPS WERE THE TARGETS OF THE OVERWHELMING MAJORITY OF ENGLISH AND
EARLY AMERICAN BILLS OF ATTAINDER.  SECOND, SEC. 32 INCORPORATES NO
JUDGMENT CENSURING OR CONDEMNING ANY MAN OR GROUP OF MEN.  IN ENACTING
IT, CONGRESS RELIED UPON ITS GENERAL KNOWLEDGE OF HUMAN PSYCHOLOGY, AND
CONCLUDED THAT THE CONCURRENT HOLDING OF THE TWO DESIGNATED POSITIONS
WOULD PRESENT A TEMPTATION TO ANY MAN - NOT JUST CERTAIN MEN OR MEMBERS
OF A CERTAIN POLITICAL PARTY.  THUS INSOFAR AS SEC. 32 INCORPORATES A
CONDEMNATION, IT CONDEMNS ALL MEN.  THIRD, WE CANNOT ACCEPT THE
SUGGESTION THAT SEC. 32 CONSTITUTES AN EXERCISE IN SPECIFICATION RATHER
THAN RULE-MAKING.  IT SEEMS TO US CLEAR THAT SEC. 32 ESTABLISHES AN
OBJECTIVE STANDARD OF CONDUCT.  CONGRESS DETERMINED THAT A PERSON WHO
BOTH (A) HELD A POSITION IN A BANK WHICH COULD BE USED TO INFLUENCE THE
INVESTMENT POLICIES OF THE BANK OR ITS CUSTOMERS, AND (B) WAS IN A
POSITION TO BENEFIT FINANCIALLY FROM INVESTMENT IN THE SECURITIES
HANDLED BY A PARTICULAR UNDERWRITING HOUSE, MIGHT WELL BE TEMPTED TO
"USE HIS INFLUENCE IN THE BANK TO INVOLVE IT OR ITS CUSTOMERS IN
SECURITIES WHICH HIS UNDERWRITING HOUSE HAS IN ITS PORTFOLIO OR HAS
COMMITTED ITSELF TO TAKE."  329 U.S., AT 447.  IN DESIGNATING BANK
OFFICERS, DIRECTORS AND EMPLOYEES AS THOSE PERSONS IN POSITION (A), AND
OFFICERS, DIRECTORS, PARTNERS AND EMPLOYEES OF UNDERWRITING HOUSES AS
THOSE PERSONS IN POSITION (B), CONGRESS MERELY EXPRESSED THE
CHARACTERISTICS IT WAS TRYING TO REACH IN AN ALTERNATIVE, SHORTHAND
WAY.  (FN29)  THAT CONGRESS WAS LEGISLATING WITH RESPECT TO GENERAL
CHARACTERISTICS RATHER THAN WITH RESPECT TO A SPECIFIC GROUP OF MEN IS
WELL DEMONSTRATED BY THE FACT THAT SEC. 32 PROVIDES THAT THE PRESCRIBED
DISQUALIFICATION SHOULD NOT OBTAIN WHENEVER THE BOARD OF GOVERNORS
DETERMINED THAT "IT WOULD NOT UNDULY INFLUENCE THE INVESTMENT POLICIES
OF SUCH MEMBER BANK OR THE ADVICE IT GIVES ITS CUSTOMERS REGARDING
INVESTMENTS."  WE DO NOT SUGGEST THAT SUCH AN ESCAPE CLAUSE IS
ESSENTIAL TO THE CONSTITUTIONALITY OF SEC. 32, BUT POINT TO IT ONLY
FURTHER TO UNDERSCORE THE INFIRMITY OF THE SUGGESTION THAT SEC. 32,
LIKE SEC. 504, INCORPORATES AN EMPIRICAL JUDGMENT OF, AND INFLICTS ITS
DEPRIVATION UPON, A PARTICULAR GROUP OF MEN. 

IT IS ARGUED, HOWEVER, THAT IN SEC. 504 CONGRESS DID NO MORE THAN IT
DID IN ENACTING SEC. 32:  IT PROMULGATED A GENERAL RULE TO THE EFFECT
THAT PERSONS POSSESSING CHARACTERISTICS WHICH MAKE THEM LIKELY TO
INCITE POLITICAL STRIKES SHOULD NOT HOLD UNION OFFICE, AND SIMPLY
INSERTED IN PLACE OF A LIST OF THOSE CHARACTERISTICS AN ALTERNATIVE,
SHORTHAND CRITERION - MEMBERSHIP IN THE COMMUNIST PARTY.  AGAIN, WE
CANNOT AGREE.  THE DESIGNATION OF COMMUNISTS AS THOSE PERSONS LIKELY TO
CAUSE POLITICAL STRIKES IS NOT THE SUBSTITUTION OF A SEMANTICALLY
EQUIVALENT PHRASE; ON THE CONTRARY, IT RESTS, AS THE COURT IN DOUDS
EXPLICITLY RECOGNIZED, 339 U.S., AT 389, UPON AN EMPIRICAL
INVESTIGATION BY CONGRESS OF THE ACTS, CHARACTERISTICS AND PROPENSITIES
OF COMMUNIST PARTY MEMBERS.  IN A NUMBER OF DECISIONS, THIS COURT HAS
POINTED OUT THE FALLACY OF THE SUGGESTION THAT MEMBERSHIP IN THE
COMMUNIST PARTY, OR ANY OTHER POLITICAL ORGANIZATION, CAN BE REGARDED
AS AN ALTERNATIVE, BUT EQUIVALENT, EXPRESSION FOR A LIST OF UNDESIRABLE
CHARACTERISTICS.  FOR, AS THE COURT NOTED IN SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118, 136, "UNDER OUR TRADITIONS BELIEFS ARE PERSONAL
AND NOT MATTER OF MERE ASSOCIATION, AND  ...  MEN IN ADHERING TO A
POLITICAL PARTY OR OTHER ORGANIZATION NOTORIOUSLY DO NOT SUBSCRIBE
UNQUALIFIEDLY TO ALL OF ITS PLATFORMS OR ASSERTED PRINCIPLES."  (FN30)
JUST LAST TERM, IN APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, WE
HELD SEC. 6 OF THE SUBVERSIVE ACTIVITIES CONTROL ACT TO VIOLATE THE
CONSTITUTION BECAUSE IT "TOO BROADLY AND INDISCRIMINATELY" RESTRICTED
CONSTITUTIONALLY PROTECTED FREEDOMS.  ONE OF THE FACTORS WHICH
COMPELLED US TO REACH THIS CONCLUSION WAS THAT SEC. 6 INFLICTED ITS
DEPRIVATION UPON ALL MEMBERS OF COMMUNIST ORGANIZATIONS WITHOUT REGARD
TO WHETHER THERE EXISTED ANY DEMONSTRABLE RELATIONSHIP BETWEEN THE
CHARACTERISTICS OF THE PERSON INVOLVED AND THE EVIL CONGRESS SOUGHT TO
ELIMINATE.  ID., AT 509-511.  THESE CASES ARE RELEVANT TO THE QUESTION
BEFORE US.  EVEN ASSUMING THAT CONGRESS HAD REASON TO CONCLUDE THAT
SOME COMMUNISTS WOULD USE UNION POSITIONS TO BRING ABOUT POLITICAL
STRIKES, "IT CANNOT AUTOMATICALLY BE INFERRED THAT ALL MEMBERS SHARE
THEIR EVIL PURPOSES OR PARTICIPATE IN THEIR ILLEGAL CONDUCT."  SCHWARE
V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 246.  IN UTILIZING THE TERM
"MEMBERS OF THE COMMUNIST PARTY" TO DESIGNATE THOSE PERSONS WHO ARE
LIKELY TO INCITE POLITICAL STRIKES, IT PLAINLY IS NOT THE CASE THAT
CONGRESS HAS MERELY SUBSTITUTED A CONVENIENT SHORTHAND TERM FOR A LIST
OF THE CHARACTERISTICS IT WAS TRYING TO REACH.  (FN31)

  IV. 

THE SOLICITOR GENERAL ARGUES THAT SEC. 504 IS NOT A BILL OF ATTAINDER
BECAUSE THE PROHIBTION IT IMPOSES DOES NOT CONSTITUTE "PUNISHMENT."  IN
SUPPORT OF THIS CONCLUSION , HE URGES THAT THE STATUTE WAS ENACTED FOR
PREVENTIVE RATHER THAN RETRIBUTIVE REASONS - THAT ITS AIM IS NOT TO
PUNISH COMMUNISTS FOR WHAT THEY HAVE DONE IN THE PAST, BUT RATHER TO
KEEP THEM FROM POSITIONS WHERE THEY WILL IN THE FUTURE BE ABLE TO BRING
ABOUT UNDESIRABLE EVENTS.  HE RELIES ON AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382, WHICH UPHELD SEC. 9(H) OF THE NATIONAL LABOR
RELATIONS ACT, THE PREDECESSOR OF THE STATUTE PRESENTLY BEFORE US.  IN
DOUDS OF THE COURT DISTINGUISHED CUMMINGS, GARLAND AND LOVETT ON THE
GROUND THAT IN THOSE CASES: 

"THE INDIVIDUALS INVOLVED WERE IN FACT BEING PUNISHED FOR PAST
ACTIONS; WHEREAS IN THIS CASE THEY ARE SUBJECT TO POSSIBLE LOSS OF
POSITION ONLY BECAUSE THERE IS SUBSTANTIAL GROUND FOR THE CONGRESSIONAL
JUDGMENT THAT THEIR BELIEFS AND LOYALTIES WILL BE TRANSFORMED INTO
FUTURE CONDUCT."  ID., AT 413. 

THIS CASE IS NOT NECESSARILY CONTROLLED BY DOUDS.  FOR TO PROVE ITS
ASSERTION THAT SEC.  9(H) WAS PREVENTIVE RATHER THAN RETRIBUTIVE IN
PURPOSE, (FN32) THE COURT IN DOUDS FOCUSED ON THE FACT THAT MEMBERS OF
THE COMMUNIST PARTY COULD ESCAPE FROM THE CLASS OF PERSONS SPECIFIED BY
CONGRESS SIMPLY BE RESIGNING FROM THE PARTY: 

"HERE THE INTENTION IS TO FORESTALL FUTURE DANGEROUS ACTS; THERE IS
NO ONE WHO MAY NOT, BY A VOLUNTARY ALTERATION OF THE LOYALTIES WHICH
IMPEL HIM TO ACTION, BECOME ELIGIBLE TO SIGN THE AFFIDAVIT.  WE CANNOT
CONCLUDE THAT THIS SECTION IS A BILL OF ATTAINDER."  ID., AT 414. 

OFFICE NOT ONLY PRESENT MEMBERS OF THE COMMUNIST PARTY, BUT ALSO ANYONE
WHO HAS WITHIN THE PAST FIVE YEARS BEEN A MEMBER OF THE PARTY. 
HOWEVER, EVEN IF WE MAKE THE ASSUMPTION THAT THE FIVE-YEAR PROVISION
WAS INSERTED NOT OUT OF DESIRE TO VISIT RETRIBUTION BUT PURELY OUT OF A
BELIEF THAT FAILURE TO INCLUDE IT WOULD LEAD TO PRO FORMA RESIGNATIONS
FROM THE PARTY WHICH WOULD NOT DECREASE THE THREAT OF POLITICAL
STRIKES, IT STILL CLEARLY APPEARS THAT SEC. 504 INFLICTS "PUNISHMENT"
WITHIN THE MEANING OF THE BILL OF ATTAINDER CLAUSE.  IT WOULD BE
ARCHAIC TO LIMIT THE DEFINITION OF "PUNISHMENT" TO "RETRIBUTION." 
PUNISHMENT SERVES SEVERAL PURPOSES: RETRIBUTIVE, REHABILITATIVE,
DETERRENT - AND PREVENTIVE.  ONE OF THE REASONS SOCIETY IMPRISONS THOSE
CONVICTED OF CRIMES IS TO KEEP THEM FROM INFLICTING FUTURE HARM, BUT
THAT DOES NOT MAKE IMPRISONMENT ANY THE LESS PUNISHMENT. 

HISTORICAL CONSIDERATIONS BY NO MEANS COMPEL RESTRICTION OF THE BILL
OF ATTAINDER BAN TO INSTANCES OF RETRIBUTION.  A NUMBER OF ENGLISH
BILLS OF ATTAINDER WERE ENACTED FOR PREVENTIVE PURPOSES - THAT IS, THE
LEGISLATURE MADE A JUDGMENT, UNDOUBTEDLY BASED LARGELY ON PAST ACTS AND
ASSOCIATIONS (AS SEC. 504 IS) (FN33) THAT A GIVEN PERSON OR GROUP WAS
LIKELY TO CAUSE TROUBLE (USUALLY, OVERTHROW THE GOVERNMENT) AND
THEREFORE INFLICTED DEPRIVATIONS UPON THAT PERSON OR GROUP IN ORDER TO
KEEP IT FROM BRINGING ABOUT THE FEARED EVENT.  (FN34)  IT IS ALSO CLEAR
THAT MANY OF THE EARLY AMERICAN BILLS ATTAINTING THE TORIES WERE PASSED
IN ORDER TO IMPEDE THEIR EFFECTIVELY RESISTING THE REVOLUTION.    "IN
THE PROGRESS OF THE CONFLICT, AND PARTICULARLY IN ITS EARLIEST PERIODS,
ATTAINDER AND CONFISCATION HAD BEEN RESORTED TO GENERALLY, THROUGHOUT
THE CONTINENT, AS A MEANS OF WAR.  BUT IT IS A FACT IMPORTANT TO THE
HISTORY OF THE REVOLTING COLONIES, THAT THE ACTS PRESCRIBING PENALTIES,
USUALLY OFFERED TO THE PERSONS AGAINST WHOM THEY WERE DIRECTED THE
OPTION OF AVOIDING THEM, BY ACKNOWLEDGING THEIR ALLEGIANCE TO THE
EXISTING GOVERNMENTS. 

"IT WAS A PREVENTIVE, NOT A VINDICTIVE POLICY.  IN THE SAME HUMANE
SPIRIT, AS THE CONTEST APPROACHED ITS CLOSE, AND THE NECESSITY OF THESE
SEVERITIES DIMINISHED, MANY OF THE STATES PASSED LAWS OFFERING PARDONS
TO THOSE WHO HAD BEEN DISFRANCHISED, AND RESTORING THEM TO THE
ENJOYMENT OF THEIR PROPERTY  ...  ."  (FN35) 

THUS JUSTICE IREDELL WAS ON SOLID HISTORICAL GROUND WHEN HE OBSERVED,
IN CALDER V. BULL, 3 DALL.  386, 399-400, THAT "ATTAINDERS, ON THE
PRINCIPLE OF RETALIATION AND PROSCRIPTION, HAVE MARKED ALL THE
VICISSITUDES OF PARTY TRIUMPH." 

WE THINK THAT THE COURT IN DOUDS MISREAD UNITED STATES V. LOVETT WHEN
IT SUGGESTED, 339 U.S., AT 413, THAT THAT CASE COULD BE DISTINGUISHED
ON THE GROUND THAT THE SANCTION THERE IMPOSED WAS LEVIED FOR PURELY
RETRIBUTIVE REASONS.  IN LOVETT THE COURT, AFTER REVIEWING THE
LEGISLATIVE HISTORY OF SEC. 304 OF THE URGENT DEFICIENCY APPROPRIATION
ACT, 328 U.S., AT 308-313, CONCLUDED THAT THE STATUTE WAS THE PRODUCT
OF A CONGRESSIONAL DRIVE TO OUST FROM GOVERNMENT PERSONS WHOSE
(CONGRESSIONALLY DETERMINED) "SUBVERSIVE" TENDENCIES MADE THEIR
CONTINUED EMPLOYMENT DANGEROUS TO THE NATIONAL WELFARE:  "THE PURPOSE
OF ALL WHO SPONSORED SEC. 304  ...  CLEARLY WAS TO 'PURGE' THE THEN
EXISTING AND ALL FUTURE LISTS OF GOVERNMENT EMPLOYEES OF THOSE WHOM
CONGRESS DEEMED GUILTY OF 'SUBVERSIVE ACTIVITIES' AND THEREFORE 'UNFIT'
TO HOLD A FEDERAL JOB."  ID., AT 314.  SIMILARLY, THE PURPOSE OF THE
STATUTE BEFORE US IS TO PURGE THE GOVERNING BOARDS OF LABOR UNIONS OF
THOSE WHOM CONGRESS REGARDS AS GUILTY OF SUBVERSIVE ACTS AND
ASSOCIATIONS AND THEREFORE UNFIT TO FILL POSITIONS WHICH MIGHT AFFECT
INTERSTATE COMMERCE.  (FN36) 

THE SOLICITOR GENERAL URGES US TO DISTINGUISH LOVETT ON THE GROUND
THAT THE STATUTE STRUCK DOWN THERE "SINGLED OUT THREE IDENTIFIED
INDIVIDUALS."  IT IS OF COURSE TRUE THAT SEC. 504 DOES NOT CONTAIN THE
WORDS "ARCHIE BROWN," AND THAT IT INFLICTS ITS DEPRIVATION UPON MORE
THAN THREE PEOPLE.  HOWEVER, THE DECISIONS OF THIS COURT, AS WELL AS
THE HISTORICAL BACKGROUND OF THE BILL OF ATTAINDER CLAUSE, MAKE IT
CRYSTAL CLEAR THAT THESE ARE DISTINCTIONS WITHOUT A DIFFERENCE.  IT WAS
NOT UNCOMMON FOR ENGLISH ACTS OF ATTAINDER TO INFLICT THEIR
DEPRIVATIONS UPON RELATIVELY LARGE GROUPS OF PEOPLE, (FN37) SOMETIMES
BY DESCRIPTION RATHER THAN NAME.  (FN38)  MOREOVER, THE STATUTES VOIDED
IN CUMMINGS AND GARLAND WERE OF THIS NATURE.  (FN39)  WE CANNOT AGREE
THAT THE FACT THAT SEC. 504 INFLICTS ITS DEPRIVATION UPON THE
MEMBERSHIP OF THE COMMUNIST PARTY RATHER THAN UPON A LIST OF NAMED
INDIVIDUALS TAKES IT OUT OF THE CATEGORY OF BILLS OF ATTAINDER. 

WE DO NOT HOLD TODAY THAT CONGRESS CANNOT WEED DANGEROUS PERSONS OUT
OF THE LABOR MOVEMENT, ANY MORE THAN THE COURT HELD IN LOVETT THAT
SUBVERSIVES MUST BE PERMITTED TO HOLD SENSITIVE GOVERNMENT POSITIONS. 
RATHER, WE MAKE AGAIN THE POINT MADE IN LOVETT:  THAT CONGRESS MUST
ACCOMPLISH SUCH RESULTS BY RULES OF GENERAL APPLICABILITY.  IT CANNOT
SPECIFY THE PEOPLE UPON WHOM THE SANCTION IT PRESCRIBES IS TO BE
LEVIED.  UNDER OUR CONSTITUTION, CONGRESS POSSESSES FULL LEGISLATIVE
AUTHORITY, BUT THE TASK OF ADJUDICATION MUST BE LEFT TO OTHER
TRIBUNALS. 

THIS COURT IS ALWAYS RELUCTANT TO DECLARE THAT AN ACT OF CONGRESS
VIOLATES THE CONSTITUTION, BUT IN THIS CASE WE HAVE NO ALTERNATIVE.  AS
ALEXANDER HAMILTON OBSERVED: 

"BY A LIMITED CONSTITUTION, I UNDERSTAND ONE WHICH CONTAINS CERTAIN
SPECIFIED EXCEPTIONS TO THE LEGISLATIVE AUTHORITY; SUCH, FOR INSTANCE,
AS THAT IT SHALL PASS NO BILLS OF ATTAINDER, NO EX POST FACTO LAWS, AND
THE LIKE.  LIMITATIONS OF THIS KIND CAN BE PRESERVED IN PRACTICE NO
OTHER WAY THAN THROUGH THE MEDIUM OF THE COURTS OF JUSTICE; WHOSE DUTY
IT MUST BE TO DECLARE ALL ACTS CONTRARY TO THE MANIFEST TENOR OF THE
CONSTITUTION VOID.  WITHOUT THIS, ALL THE RESERVATIONS OF PARTICULAR
RIGHTS OR PRIVILEGES WOULD AMOUNT TO NOTHING."  (FN40) 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  73 STAT. 536, 29 U.S.C. SEC. 504 (1958 ED., SUPP. IV).  THE
PERTINENT PART: 

"(A)  NO PERSON WHO IS OR HAS BEEN A MEMBER OF THE COMMUNIST PARTY
...  SHALL SERVE: 

"(1)  AS AN OFFICER, DIRECTOR, TRUSTEE, MEMBER OF ANY EXECUTIVE BOARD
OR SIMILAR GOVERNING BODY, BUSINESS AGENT, MANAGER, ORGANIZER, OR OTHER
EMPLOYEE (OTHER THAN AS AN EMPLOYEE PERFORMING EXCLUSIVELY CLERICAL OR
CUSTODIAL DUTIES) OF ANY LABOR ORGANIZATION  ...  . 

*         *         *         *         * 

"DURING OR FOR FIVE YEARS AFTER THE TERMINATION OF HIS MEMBERSHIP IN
THE COMMUNIST PARTY  ...  . 

"(B)  ANY PERSON WHO WILLFULLY VIOLATES THIS SECTION SHALL BE FINED
NOT MORE THAN $10,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR
BOTH." 

FN2  IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 388,
THIS COURT FOUND THAT "THE PURPOSE OF SEC. 9(H) OF THE NATIONAL LABOR
RELATIONS ACT WAS TO REMOVE  ...  THE SO-CALLED 'POLITICAL STRIKE'." 
BUT IN A MORE DIRECT AND EFFECTIVE WAY.  H.R. REP. NO. 741, 86TH CONG.,
1ST SESS., P. 33; H.R. REP. NO. 1147, 86TH CONG., 1ST SESS., P. 36. 

FN3  61 STAT. 146, AMENDING THE NATIONAL LABOR RELATIONS ACT OF 1935,
49 STAT. 449.  SECTION 9(H) PROVIDED: 

"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 CONTEMPORANEOUSLY OR WITHIN THE PRECEDING TWELVE
MONTH PERIOD BY EACH OFFICER OF SUCH LABOR ORGANIZATION AND THE
OFFICERS OF ANY NATIONAL OR INTERNATIONAL LABOR ORGANIZATION OF WHICH
IT IS AN AFFILIATE OR CONSTITUENT UNIT THAT HE IS NOT A MEMBER OF THE
COMMUNIST PARTY OR AFFILIATED WITH SUCH PARTY, AND THAT HE DOES NOT
BELIEVE IN, AND IS NOT A MEMBER OF OR SUPPORTS ANY ORGANIZATION THAT
BELIEVES IN OR TEACHES, THE OVERTHROW OF THE UNITED STATES GOVERNMENT
BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL METHODS.  THE PROVISIONS
OF SECTION 35A OF THE CRIMINAL CODE SHALL BE APPLICABLE IN RESPECT TO
SUCH AFFIDAVITS." 

REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 525. 

FN4  EVIDENCE THAT THE EXECUTIVE BOARD HAD NEVER CALLED A STRIKE WAS,
UPON THE MOTION OF THE GOVERNMENT, STRIKEN FROM THE RECORD, AND A
DEFENSE OFFER TO PROVE THAT THE UNION HAD NOT BEEN INVOLVED IN A STRIKE
SINCE 1948 WAS REJECTED BY THE COURT. 

FN5  RESPONDENT FIRST RAISED THE BILL OF ATTAINDER ARGUMENT IN HIS
MOTION TO DISMISS THE INDICTMENT. 

FN6  MADISON, DEBATES IN THE FEDERAL CONVENTION OF 1787, P. 449 (HUNT
AND SCOTT ED. 1920). 

FN7  E.G., 3 JAC.  1, C. 2; 10 & 11 WILL.  3, C. 13; 13 WILL.  3, C.
3; 9 GEO. 1, C. 15. 

FN8  3 COKE, FIRST INSTITUTE (ON LITTLETON), P. 565 (THOMAS ED.
1818); CHAFEE, THREE HUMAN RIGHTS IN THE CONSTITUTION OF 1787, P. 96
(1956).  CF. U.S. CONST., ART. III, SEC. 3, CL. 2. 

FN9  II WOODDESON, A SYSTEMATICAL VIEW OF THE LAWS OF ENGLAND, P. 638
(1792); II STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES, P. 210 (4TH ED. 1873); SEE, E.G., 13 CAR.  2, STAT. I, C. 15; 9
GEO. 1, C. 15. 

FN10  II WOODDESON, A SYSTEMATICAL VIEW OF THE LAWS OF ENGLAND, P.
638 (1792); SEE, E.G., 19 CAR.  2, C. 10; PROCEEDINGS AGAINST HUGH AND
HUGH LE DESPENCER, 1 STATE TRIALS 23 (1320). 

FN11  E.G., 11 GEO. 3, C. 55. 

FN12  21 RICH.  2, C. 6. 

FN13  E.G., 26 HEN.  8, C. 25 (PRIV.), 3 STATUTES OF THE REALM, P.
529; 8 WILL.  3, C. 5. 

FN14  SEE NOTE 32, INFRA. 

FN15  VAN TYNE, THE LOYALISTS IN THE AMERICAN REVOLUTION, APPS.  B &
C (1902); THOMPSON, ANTI-LOYALIST LEGISLATION DURING THE AMERICAN
REVOLUTION, 3 ILL. L. REV. 81, 147; REPPY, THE SPECTRE OF ATTAINDER IN
NEW YORK, 23 ST. JOHN'S L. REV. 1.  SEE RESPUBLICA V. GORDON, 1 DALL. 
233; COOPER V. TELFAIR, 4 DALL.  14. 

FN16  THE FEDERALIST, NO. 47, PP. 373-374 (HAMILTON ED. 1880). 

FN17  THE FEDERALIST, NO. 48, PP. 383-384 (HAMILTON ED.
1880)(MADISON); SEE GENERALLY THE FEDERALIST, NOS. 47 (MADISON), 48
(MADISON), 49 (HAMILTON), 51 (HAMILTON) AND 78 (HAMILTON). 

FN18  III (JOHN C.)  HAMILTON, HISTORY OF THE REPUBLIC OF THE UNITED
STATES, P. 34 (1859), QUOTING ALEXANDER HAMILTON.  JAMES MADISON
EXPRESSED SIMILAR SENTIMENTS: 

"BILLS OF ATTAINDER, EX POST FACTO LAWS, AND LAWS IMPAIRING THE
OBLIGATION OF CONTRACTS, ARE CONTRARY TO THE FIRST PRINCIPLES OF THE
SOCIAL COMPACT, AND TO EVERY PRINCIPLE OF SOUND LEGISLATION.   THE TWO
FORMER ARE EXPRESSLY PROHIBITED BY THE DECLARATIONS PREFIXED TO SOME OF
THE STATE CONSTITUTIONS, AND ALL OF THEM ARE PROHIBITED BY THE SPIRIT
AND SCOPE OF THESE FUNDAMENTAL CHARTERS.   OUR OWN EXPERIENCE HAS
TAUGHT US, NEVERTHELESS, THAT ADDITIONAL FENCES AGAINST THESE DANGERS
OUGHT NOT TO BE OMITTED.  VERY PROPERLY, THEREFORE, HAVE THE CONVENTION
ADDED THIS CONSTITUTIONAL BULWARK IN FAVOUR OF PERSONAL SECURITY AND
PRIVATE RIGHTS  ...  .  THE SOBER PEOPLE OF AMERICA ARE WEARY OF THE
FLUCTUATING POLICY WHICH HAS DIRECTED THE PUBLIC COUNCILS.  THEY HAVE
SEEN WITH REGRET AND WITH INDIGNATION, THAT SUDDEN CHANGES, AND
LEGISLATIVE INTERFERENCES, IN CASES AFFECTING PERSONAL RIGHTS, BECOME
JOBS IN THE HANDS OF ENTERPRISING AND INFLUENTIAL SPECULATORS; AND
SNARES TO THE MORE INDUSTRIOUS AND LESS INFORMED PART OF THE
COMMUNITY."  THE FEDERALIST, NO. 44, P. 351 (HAMILTON ED. 1880). 

FN19  1 COOLEY, CONSTITUTIONAL LIMITATIONS, PP. 536-537 (8TH ED.
1927).  TO THE SAME EFFECT, SEE CALDER V. BULL, 3 DALL.  386, 389;
UNITED STATES V. LOVETT, 328 U.S. 303, 317-318; II STORY, COMMENTARIES
ON THE CONSTITUTION OF THE UNITED STATES, P. 210 (4TH ED. 1873); III
HAMILTON, HISTORY OF THE REPUBLIC OF THE UNITED STATES, P. 31 (1859);
POUND, JUSTICE ACCORDING TO LAW II, 14 COL. L. REV. 1, 7-12. 
MACAULAY'S ACCOUNT OF THE ATTAINDER OF SIR JOHN FENWICK IS PARTICULARLY
VIVID: 

"SOME HUNDREDS OF GENTLEMEN, EVERY ONE OF WHOM HAD MUCH MORE THAN
HALF MADE UP HIS MIND BEFORE THE CASE WAS OPEN, PERFORMED THE OFFICE
BOTH OF JUDGE AND JURY.  THEY WERE NOT RESTRAINED, AS A JUDGE IS
RESTRAINED, BY THE SENSE OF RESPONSIBILITY  ...  .  THEY WERE NOT
SELECTED, AS A JURY IS SELECTED, IN A MANNER WHICH ENABLES A CULPRIT TO
EXCLUDE HIS PERSONAL AND POLITICAL ENEMIES.  THE ARBITERS OF THE
PRISONER'S FATE CAME IN AND WENT OUT AS THEY CHOSE.  THEY HEARD A
FRAGMENT HERE AND THERE OF WHAT WAS SAID AGAINST HIM, AND A FRAGMENT
HERE AND THERE OF WHAT WAS SAID IN HIS FAVOR.  DURING THE PROGRESS OF
THE BILL THEY WERE EXPOSED TO EVERY SPECIES OF INFLUENCE.  ONE MEMBER
MIGHT BE THREATENED BY THE ELECTORS OF HIS BOROUGH WITH THE LOSS OF HIS
SEAT  ...  .  IN THE DEBATES ARTS WERE PRACTISED AND PASSIONS EXCITED
WHICH ARE UNKNOWN TO WELL-CONSTITUTED TRIBUNALS, BUT FROM WHICH NO
GREAT POPULAR ASSEMBLY DIVIDED INTO PARTIES EVER WAS OR EVER WILL BE
FREE."  IX MACAULAY, HISTORY OF ENGLAND, P. 207 (1900). 

FN20  THE SAME THOUGHT IS REFLECTED IN THE WRITINGS OF THOMAS
JEFFERSON:  "173 DESPOTS WOULD SURELY BE AS OPPRESSIVE AS ONE  ...  .
LITTLE WILL IT AVAIL US THAT THEY ARE CHOSEN BY OURSELVES ...  .  THE
GOVERNMENT WE FOUGHT FOR IS ONE WHICH SHOULD NOT ONLY BE FOUNDED ON
FREE PRINCIPLES, BUT IN WHICH THE POWERS OF GOVERNMENT SHOULD BE SO
DIVIDED AND BALANCED AMONG SEVERAL BODIES OF MAGISTRACY, AS THAT NO ONE
COULD TRANSCEND THEIR LEGAL LIMITS, WITHOUT BEING EFFECTUALLY CHECKED
AND RESTRAINED BY THE OTHERS.  FOR THIS REASON THAT CONVENTION, WHICH
PASSED THE ORDINANCE OF GOVERNMENT, LAID ITS FOUNDATION ON THIS BASIS,
THAT THE LEGISLATIVE, EXECUTIVE AND JUDICIARY DEPARTMENTS SHOULD BE
SEPARATE AND DISTINCT, SO THAT NO PERSON SHOULD EXERCISE THE POWERS OF
MORE THAN ONE OF THEM AT THE SAME TIME  ...  .  IF  ...  THE
LEGISLATURE ASSUMES EXECUTIVE AND JUDICIARY POWERS, NO OPPOSITION IS
LIKELY TO BE MADE; NOR, IF MADE, CAN IT BE EFFECTUAL; BECAUSE IN THAT
CASE THEY MAY PUT THEIR PROCEEDINGS INTO THE FORM OF AN ACT OF
ASSEMBLY, WHICH WILL RENDER THEM OBLIGATORY ON THE OTHER BRANCHES. 
THEY HAVE ACCORDINGLY IN MANY INSTANCES, DECIDED RIGHTS WHICH SHOULD
HAVE BEEN LEFT TO JUDICIARY CONTROVERSY  ...  ."  JEFFERSON, NOTES ON
THE STATE OF VIRGINIA, PP. 157-158 (FORD ED. 1894). 

FN21  IN 1872, IN PIERCE V. CARSKADON, 16 WALL.  234, THE COURT
VOIDED AS A BILL OF ATTAINDER A WEST VIRGINIA STATUTE CONDITIONING
ACCESS TO THE COURTS UPON THE TAKING OF AN OATH SIMILAR TO THOSE
INVOLVED IN CUMMINGS AND GARLAND.  IN DENT V. WEST VIRGINIA, 129 U.S.
114, THIS COURT UPHELD A WEST VIRGINIA STATUTE REQUIRING THAT
PHYSICIANS OBTAIN A LICENSE IN ORDER TO PRACTICE.  APPELLANT ARGUED,
INTER ALIA, THAT THE STATUTE WAS A BILL OF ATTAINDER BECAUSE THE
GRANTING OF A LICENSE WAS CONDITIONED UPON GRADUATING FROM MEDICAL
SCHOOL, PRACTICING FOR 10 YEARS, OR PASSING A SPECIAL EXAMINATION.  THE
COURT REJECTED THE ARGUMENT ON THE GROUND THAT THE STATUTE SET FORTH
GENERAL QUALIFICATIONS APPLICABLE TO ALL PERSONS WHO WANTED TO PRACTICE
MEDICINE, ID., AT 124, AND DID NOT SINGLE OUT A SPECIFIC PERSON OR
GROUP FOR DEPRIVATION.  SEE ALSO DREHMAN V. STIFLE, 8 WALL.  595. 
FN22  SECTION 304 PROVIDED: 

"NO PART OF ANY APPROPRIATION, ALLOCATION, OR FUND (1) WHICH IS MADE
AVAILABLE UNDER OR PURSUANT TO THIS ACT, OR (2) WHICH IS NOW, OR WHICH
IS HEREAFTER MADE, AVAILABLE UNDER OR PURSUANT TO ANY OTHER ACT, TO ANY
DEPARTMENT, AGENCY, OR INSTRUMENTALITY OF THE UNITED STATES, SHALL BE
USED, AFTER NOVEMBER 15, 1943, TO PAY ANY PART OF THE SALARY, OR OTHER
COMPENSATION FOR THE PERSONAL SERVICES, OF GOODWIN B. WATSON, WILLIAM
E. DODD, JUNIOR, AND ROBERT MORSS LOVETT, UNLESS PRIOR TO SUCH DATE
SUCH PERSON HAS BEEN APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE
AND CONSENT OF THE SENATE: PROVIDED, THAT THIS SECTION SHALL NOT
OPERATE TO DEPRIVE ANY SUCH PERSON OF PAYMENT FOR LEAVES OF ABSENCE OR
SALARY, OR OF ANY REFUND OR REIMBURSEMENT, WHICH HAVE ACCRUED PRIOR TO
NOVEMBER 15, 1943 ...  ." 

FN23  ALTHOUGH IT MAY BE THAT UNDERINCLUSIVENESS IS A CHARACTERISTIC
OF MOST BILLS OF ATTAINDER, WE DOUBT THAT IT IS A NECESSARY FEATURE. 
WE THINK IT CLEAR FROM THE LOVETT OPINION THAT SEC. 304 WOULD HAVE BEEN
VOIDED EVEN IF IT COULD HAVE BEEN DEMONSTRATED THAT NO ONE OTHER THAN
LOVETT, WATSON AND DODD POSSESSED THE CHARACTERISTICS WHICH CONGRESS
WAS TRYING TO REACH.  THE VICE OF ATTAINDER IS THAT THE LEGISLATURE HAS
DECIDED FOR ITSELF THAT CERTAIN PERSONS POSSESS CERTAIN CHARACTERISTICS
AND ARE THEREFORE DESERVING OF SANCTION, NOT THAT IT HAS FAILED TO
SANCTION OTHERS SIMILARLY SITUATED. 

FN24  WE OF COURSE TAKE NO POSITION ON WHETHER OR NOT MEMBERS OF THE
COMMUNIST PARTY ARE IN FACT LIKELY TO INCITE POLITICAL STRIKES.  THE
POINT WE MAKE IS RATHER THAT THE CONSTITUTION FORBIDS CONGRESS FROM
MAKING SUCH DETERMINATIONS. 

FN25  SEE 367 U.S., AT 146 (BLACK, J., DISSENTING). 

FN26  "IT NEED HARDLY BE SAID THAT IT IS UPON THE PARTICULAR EVIDENCE
IN A PARTICULAR RECORD THAT A PARTICULAR DEFENDANT MUST BE JUDGED, AND
NOT UPON THE EVIDENCE IN SOME OTHER RECORD OR UPON WHAT MAY BE SUPPOSED
TO BE THE TENETS OF THE COMMUNIST PARTY."  NOTO V. UNITED STATES, 367
U.S. 290, 299. 

IT IS ARGUED THAT SEC. 504 IS NOT A BILL OF ATTAINDER BECAUSE PRIOR
TO ITS ENACTMENT THERE HAD BEEN AN ADMINISTRATIVE ADJUDICATION (BY THE
SUBVERSIVE ACTIVITIES CONTROL BOARD) OF "THE NATURE OF THE PARTY." 
COMPARE HAWKER V. NEW YORK, 170 U.S. 189; DEVEAU V. BRAISTED, 363 U.S.
144, 160.  EVEN LEAVING ASIDE THE FACT THAT THE LEGISLATIVE HISTORY OF
SEC. 504, SEE NOTE 2, SUPRA, INDICATES THAT CONGRESS WAS ACTING IN
RELIANCE ON THE FINDINGS IT HAD MADE IN 1947 RATHER THAN ON THOSE MADE
BY THE BOARD IN 1953, WE THINK THAT THIS ARGUMENT MISSES THE POINT OF
THE COURT'S OPINION IN THE COMMUNIST PARTY CASE, WHERE THE COURT
STRESSED THAT THE SUBVERSIVE ACTIVITIES CONTROL ACT DID NOT NAME THE
COMMUNIST PARTY BUT RATHER SET FORTH A BROAD DEFINITION, WHICH WOULD
PERMIT THE PARTY TO ESCAPE THE PRESCRIBED DEPRIVATIONS IN THE EVENT ITS
CHARACTER CHANGED. 

FN27  48 STAT. 194, AS AMENDED, 49 STAT. 709, 12 U.S.C. SEC. 78 (1964
ED.). 

FN28  A SIMILAR EXAMPLE IS FURNISHED BY PROVISIONS FORBIDDING STATE
OFFICERS OR EMPLOYEES FROM CONCURRENTLY HOLDING CERTAIN OTHER TYPES OF
POSITIONS, SUCH AS POSITIONS WITH THE FEDERAL GOVERNMENT.  SEE, E.G.,
CAL. CONST., ART. IV, SEC. 20; CF. N.Y. CONST., ART. III, SEC. 7; U.S.
CONST., ART. I, SEC. 6, CL. 2. 

FN29  THE COMMAND OF THE BILL OF ATTAINDER CLAUSE - THAT A
LEGISLATURE CAN PROVIDE THAT PERSONS POSSESSING CERTAIN CHARACTERISTICS
MUST ABSTAIN FROM CERTAIN ACTIVITIES, BUT MUST LEAVE TO OTHER TRIBUNALS
THE TASK OF DECIDING WHO POSSESSES THOSE CHARACTERISTICS - DOES NOT
MEAN THAT A LEGISLATURE CANNOT USE A SHORTHAND PHRASE TO SUMMARIZE THE
CHARACTERISTICS WITH WHICH IT IS CONCERNED.  FOR EXAMPLE, A LEGISLATURE
MIGHT DETERMINE THAT PERSONS AFFLICTED WITH A CERTAIN DISEASE WHICH HAS
AS ONE OF ITS SYMPTONS A SUSCEPTIBILITY TO UNCONTROLLABLE SEIZURES
SHOULD NOT BE LICENSED TO OPERATE DANGEROUS MACHINERY.  IN ENACTING A
STATUTE TO ACHIEVE THIS GOAL, THE LEGISLATURE COULD NAME THE DISEASE
INSTEAD OF LISTING THE SYMPTOMS, FOR IN DOING SO IT WOULD MERELY BE
SUBSTITUTING A SHORTHAND PHRASE WHICH CONVEYS THE SAME MEANING. 

FN30  TO THE SAME EFFECT, SEE NOTO V. UNITED STATES, 367 U.S. 290,
299-300; WIEMAN V. UPDEGRAFF, 344 U.S. 183, 190. 

FN31  WE RELY ON THE "OVERBROADNESS" CASES ONLY TO BUTTRESS OUR
CONCLUSION THAT SEC. 504 CANNOT BE RATIONALIZED ON THE GROUND THAT
MEMBERSHIP IN THE COMMUNIST PARTY IS MERELY AN EQUIVALENT, SHORTHAND
WAY OF EXPRESSING THOSE CHARACTERISTICS WHICH RENDER LIKELY THE
INCITEMENT OF POLITICAL STRIKES.  WE OF COURSE DO NOT HOLD THAT
OVERBROADNESS IS A NECESSARY CHARACTERISTIC OF A BILL OF ATTAINDER. 

FN32  THE COURT'S OPINION IN COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES
CONTROL BOARD, 367 U.S. 1, 88, ALSO REFERRED TO THE FACT THAT THE
MEMBERS OF THE CLASS AFFECTED BY THE STATUTE COULD EXTRICATE THEMSELVES
FROM THE CLASS AT WILL.  HOWEVER, WHEREAS THE FACTOR OF ESCAPABILITY
WAS CONSIDERED IN DOUDS TO BE PROBATIVE OF WHETHER OR NOT THE STATUTE
WAS PUNITIVE, IN THE COMMUNIST PARTY CASE IT WAS CONSIDERED ONLY AS ONE
FACTOR TENDING TO SHOW THAT THE ACT IN QUESTION WAS NOT DIRECTED AT A
SPECIFIC GROUP OF PERSONS BUT RATHER SET FORTH A GENERALLY APPLICABLE
DEFINITION.  SEE NOTE 26, SUPRA.  WE DO NOT READ EITHER OPINION TO HAVE
SET UP INESCAPABILITY AS AN ABSOLUTE PREREQUISITE TO A FINDING OF
ATTAINDER.  SUCH AN ABSOLUTE RULE WOULD HAVE FLOWN IN THE FACE OF
EXPLICIT PRECEDENT, CUMMINGS V. MISSOURI, 4 WALL.  277, 324, AS WELL AS
THE HISTORICAL BACKGROUND OF THE CONSTITUTIONAL PROHIBITION.  A NUMBER
OF ANTE-CONSTITUTION BILLS OF ATTAINDER INFLICTED THEIR DEPRIVATIONS
UPON NAMED OR DESCRIBED PERSONS OR GROUPS, BUT OFFERED THEM THE OPTION
OF AVOIDING THE DEPRIVATIONS, E.G., BY SWEARING ALLEGIANCE TO THE
EXISTING GOVERNMENT.  SEE, E.G., DEL.  LAWS 1778, C. 29B; MASS. ACTS OF
SEPTEMBER 1778, C. 13; III HAMILTON, HISTORY OF THE REPUBLIC OF THE
UNITED STATES, P. 25 (1859); SEE GENERALLY NOTE, 72 YALE L. J. 330, 339
340. 

FN33  AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 389; SEE
NOTE 2, SUPRA. 

FN34  SEE EX PARTE LAW, 15 FED. CAS. 3, 9-10 (NO. 8126)(D.C.S.D. GA.
1866).  PROFESSOR CHAFEE HAS POINTED OUT THAT EVEN THE DEATH PENALTY
WAS OFTEN INFLICTED LARGELY FOR PREVENTIVE PURPOSES: 

"THERE WAS NO GOOD MIDDLE GROUND BETWEEN BEHEADING AND DOING
NOTHING.  IF THE OUSTED ADVISER WERE LEFT AT LIBERTY, HE COULD READILY
TURN HIS RESENTMENT INTO COERCION OR REBELLION AND MAKE A MAGNIFICENT
COMEBACK TO THE UTTER RUIN OF THOSE WHO HAD DRIVEN HIM FROM HIS HIGH
PLACE.  THEREFORE, THE USUAL OBJECT OF PARLIAMENTARY PROCEEDINGS
AGAINST AN IMPORTANT MINISTER WAS TO PUT HIM TO DEATH."  CHAFEE, THREE
HUMAN RIGHTS IN THE CONSTITUTION OF 1787, PP. 103-104 (1956). 

THE PREVENTIVE PURPOSE OF THE "ACT FOR THE ATTAINDER OF THE PRETENDED
PRINCE OF WALES OF HIGH TREASON" OF 1700, 13 WILL.  3, C. 3, IS
DEMONSTRATED BY THE PARLIAMENTARY DECLARATION THAT ANYONE CORRESPONDING
WITH THE PRINCE OR HIS FOLLOWERS WOULD BE SUBJECT TO PROSECUTION FOR
TREASON.  SEE ALSO CHAFEE, SUPRA, PP. 109-112 (IMPEACHMENT AND
ATTAINDER OF THE EARL OF STRAFFORD), 115-118 (BILL AGAINST THE EARL OF
CLARENDON). 

FN35  III HAMILTON, HISTORY OF THE REPUBLIC OF THE UNITED STATES, P.
25 (1859); SEE, E.G., MASS. ACTS OF SEPTEMBER 1778, C. 13 ("AN ACT TO
PREVENT THE RETURN OF TORIES"); CF. MD.  LAWS FEBRUARY 1777, C. 20 ("AN
ACT TO PUNISH CERTAIN CRIMES AND MISDEMEANORS, AND TO PREVENT THE
GROWTH OF TORYISM"); SEE ALSO II STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES, P. 211, N. 1 (4TH ED. 1873);
AUTHORITIES CITED NOTE 15, SUPRA. 

FN36  NOR DO THE DEPRIVATIONS IMPOSED BY THE TWO STATUTES DIFFER IN
ANY MEANINGFUL WAY.  SECTION 304 CUT OFF THE SALARY OF THE SPECIFIED
INDIVIDUALS, THEREBY EFFECTIVELY BARRING THEM FROM GOVERNMENT SERVICE,
328 U.S., AT 316; SEC. 504 PROVIDES THAT SPECIFIED PERSONS CANNOT SERVE
AS OFFICERS OF, OR ENGAGE IN MOST KINDS OF EMPLOYMENT WITH, LABOR
UNIONS.  COMPARE DEL. LAWS 1778, C. 29B; CUMMINGS V. MISSOURI, 4 WALL. 
277, 317, 320; EX PARTE GARLAND, 4 WALL.  333, 374. 

FN37  E.G., 12 CAR.  2, C. 30; 19 GEO. 2, C. 26; 11 GEO. 3, C. 55. 

FN38  NOTE 13, SUPRA. 

FN39  SEE ALSO EX PARTE LAW, 15 FED. CAS. 3, 8 (NO. 8126)(D.C.S.D.
GA. 1866); UNITED STATES V. LOVETT, 328 U.S. 303, 327 (FRANKFURTER, J.,
CONCURRING). 

FN40  THE FEDERALIST, NO. 78, PP. 576-577 (HAMILTON ED. 1880). 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN,
AND MR. JUSTICE STEWART JOIN, DISSENTING. 

"A BILL OF ATTAINDER IS A LEGISLATIVE ACT WHICH INFLICTS PUNISHMENT
WITHOUT A JUDICIAL TRIAL."  CUMMINGS V. MISSOURI, 4 WALL.  277, 323. 
WHEN AN ENACTMENT IS CHALLENGED AS AN ATTAINDER, THE CENTRAL INQUIRY
MUST BE WHETHER THE DISABILITY IMPOSED BY THE ACT IS "PUNISHMENT" I.E.,
IS DIRECTED AT AN INDIVIDUAL OR A GROUP OF INDIVIDUALS) OR IS
"REGULATION" (I.E., IS DIRECTED AT CONTROLLING FUTURE CONDUCT). 
FLEMMING V. NESTOR, 363 U.S. 603, AT 613-614; ACCORD, TROP V. DULLES,
356 U.S. 86, 95-96 (WARREN, C.J., ANNOUNCING JUDGMENT).  WHETHER A
PUNITIVE PURPOSE WOULD BE INFERRED HAS DEPENDED IN PAST CASES ON A
NUMBER OF CIRCUMSTANCES, INCLUDING THE NATURE OF THE DISABILITY,
WHETHER IT WAS TRADITIONALLY REGARDED AS PUNISHMENT, WHETHER IT IS
RATIONALLY CONNECTED TO A PERMISSIBLE LEGISLATIVE OBJECTIVE, AS WELL AS
THE SPECIFICITY OF THE LEGISLATURE'S DESIGNATION OF THE PERSONS TO BE
AFFECTED.  SEE GENERALLY KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, 168
169. 

IN THIS CASE, HOWEVER, THE COURT DISCARDS THIS METICULOUS MULTIFOLD
ANALYSIS THAT HAS BEEN DEEMED NECESSARY IN THE PAST.  INSTEAD THE COURT
PLACES THE BURDEN OF SEPARATING ATTAINDERS FROM PERMISSIBLE REGULATION
ON AN EXAMINATION OF THE LEGISLATIVE FINDINGS IMPLIED BY THE NATURE OF
THE CLASS DESIGNATED.  THE BILL OF ATTAINDER CLAUSE, THE COURT SAYS,
WAS INTENDED TO IMPLEMENT THE SEPARATION OF POWERS BY CONFINING THE
LEGISLATURE TO RULE-MAKING AND PREVENTING LEGISLATIVE INVASION OF A
FUNCTION LEFT EXCLUSIVELY TO THE COURTS - FACT-FINDING CONNECTED WITH
APPLICATIONS OF A GENERAL RULE TO INDIVIDUALS OR GROUPS.  SECTION 504
OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT IS THEREFORE A
BILL OF ATTAINDER BECAUSE IN PURSUIT OF ITS PURPOSE OF PREVENTING
POLITICAL STRIKES, IT HAS SPECIFIED THE PERSONS - COMMUNIST PARTY
MEMBERS - WHO ARE TO BE DISQUALIFIED FROM HOLDING UNION OFFICE, RATHER
THAN EXCLUDING ALL PERSONS WHO MIGHT ENGAGE IN THE UNDESIRABLE
CONDUCT.  THE VICE IN SEC. 504 IS THAT IT DOES NOT SET FORTH A RULE
GENERALLY APPLICABLE TO "ANY PERSON WHO COMMITS CERTAIN ACTS OR
POSSESSES CERTAIN CHARACTERISTICS (ACTS AND CHARACTERISTICS WHICH, IN
CONGRESS' VIEW, MAKE THEM LIKELY TO INITIATE POLITICAL STRIKES)" BUT
HAS INSTEAD DESIGNATED "THE PERSONS WHO POSSESS THE FEARED
CHARACTERISTICS," MEMBERS OF THE COMMUNIST PARTY.  ANTE, AT 450. 

AT THIS POINT THE COURT IMPLIES THAT LEGISLATION IS SUFFICIENTLY
GENERAL IF IT SPECIFIES A CHARACTERISTIC THAT MAKES IT LIKELY THAT
INDIVIDUALS FALLING WITHIN THE GROUP DESIGNATED WILL ENGAGE IN CONDUCT
CONGRESS MAY PROHIBIT.  BUT THE COURT THEN GOES ON TO REJECT THE
ARGUMENT THAT COMMUNIST PARTY MEMBERSHIP IS IN ITSELF A CHARACTERISTIC
RAISING SUCH A LIKELIHOOD.  THE COURT DECLARES THAT "EVEN ASSUMING THAT
CONGRESS HAD REASON TO CONCLUDE THAT SOME COMMUNISTS WOULD USE UNION
POSITIONS TO BRING ABOUT POLITICAL STRIKES, '  ...  IT CANNOT
AUTOMATICALLY BE INFERRED THAT ALL MEMBERS SHARE THEIR EVIL PURPOSES OR
PARTICIPATE IN THEIR ILLEGAL CONDUCT.'"  ANTE, AT 456.  THIS SUDDEN
SHIFT IN ANALYSIS - FROM LIKELIHOOD TO CERTAINTY - MUST MEAN THAT THE
BILL OF ATTAINDER CLAUSE PROSCRIBES LEGISLATIVE ACTION WITH RESPECT TO
ANY GROUP SMALLER THAN THE TOTAL CLASS POSSESSING THE CHARACTERISTIC
UPON WHICH LEGISLATIVE POWER IS PREMISED WHENEVER THE LEGISLATION IS
BASED ONLY ON A FINDING ABOUT THE AVERAGE CHARACTERISTICS OF THE
SUBGROUP.  THE LEGISLATURE MAY FOCUS ON A PARTICULAR GROUP OR CLASS
ONLY WHEN THE GROUP DESIGNATION IS A "SHORTHAND PHRASE" FOR THE FEARED
CHARACTERISTIC - I.E., WHEN IT IS COMMON KNOWLEDGE THAT ALL, NOT JUST
SOME, MEMBERS OF THE GROUP POSSESS THE FEARED CHARACTERISTIC AND THUS
SUCH LEGISLATIVE DESIGNATION WOULD REQUIRE NO LEGISLATIVE FACT-FINDING
ABOUT INDIVIDUALS.  (FN1) 

IN THE COURT'S VIEW, THEREFORE, SEC. 504 IS TOO NARROW IN SPECIFYING
THE PARTICULAR CLASS; BUT IT IS ALSO TOO BROAD IN TREATING ALL MEMBERS
OF THE CLASS ALIKE.  ON BOTH COUNTS - UNDERINCLUSIVENESS AND
OVERINCLUSIVENESS - SEC. 504 IS INVALID AS A BILL OF ATTAINDER BECAUSE
CONGRESS HAS ENGAGED IN FORBIDDEN FACT-FINDING ABOUT INDIVIDUALS AND
GROUPS AND HAS THUS STRAYED INTO THE AREA RESERVED TO THE JUDICIARY BY
THE CONSTITUTION. 

                               I. 

IT IS NOT DIFFICULT TO FIND SOME OF THE CASES AND STATUTES WHICH THE
NECESSARY IMPLICATIONS OF THE COURT'S APPROACH WILL OVERRULE OR
INVALIDATE. 

AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, WHICH UPHELD
THE PREDECESSOR STATUTE TO SEC. 504 IS OBVIOUSLY OVERRULED.  IN THAT
CASE THE COURT ACCEPTED THE CONGRESSIONAL FINDINGS ABOUT THE COMMUNIST
PARTY AND ABOUT THE PROPENSITY OF PARTY MEMBERS "TO SUBORDINATE
LEGITIMATE TRADE UNION OBJECTIVES TO OBSTRUCTIVE STRIKES WHEN DICTATED
BY PARTY LEADERS, OFTEN IN SUPPORT OF THE POLICIES OF A FOREIGN
GOVERNMENT."  339 U.S., AT 388.  MOREOVER, CONGRESS WAS PERMITTED TO
INFER FROM A PERSON'S "POLITICAL AFFILIATIONS AND BELIEFS" THAT SUCH A
PERSON WOULD BE LIKELY TO INSTIGATE POLITICAL STRIKES.  339 U.S., AT
391-392.  LIKE SEC. 504, THE STATUTE THERE UNDER CONSIDERATION DID NOT
COVER ALL PERSONS WHO MIGHT BE LIKELY TO CALL POLITICAL STRIKES. 
NEVERTHELESS, LEGISLATIVE FINDINGS THAT SOME COMMUNISTS WOULD ENGAGE IN
ILLEGAL ACTIVITIES WERE SUFFICIENT TO SUSTAIN THE EXERCISE OF
LEGISLATIVE POWER.  THE BILL OF ATTAINDER CLAUSE NOW FORBIDS CONGRESS
TO DO PRECISELY WHAT WAS VALIDATED IN DOUDS.    SIMILARLY INVALIDATED
ARE STATUTES DENYING POSITIONS OF PUBLIC IMPORTANCE TO GROUPS OF
PERSONS IDENTIFIED BY THEIR BUSINESS AFFILIATIONS, COMMONLY KNOWN AS
CONFLICT-OF-INTEREST STATUTES.  IN THE DOUDS CASE THE COURT FOUND IN
SUCH STATUTES SUPPORT FOR ITS CONCLUSION THAT CONGRESS COULD RATIONALLY
DRAW INFERENCES ABOUT PROBABLE CONDUCT ON THE BASIS OF POLITICAL
AFFILIATIONS AND BELIEFS, WHICH IT CONSIDERED COMPARABLE TO BUSINESS
AFFILIATIONS.  THE MAJORITY IN THE CASE NOW BEFORE US LIKEWISE
RECOGNIZES THE PERTINENCY OF SUCH STATUTES AND, IN ITS DISCUSSION OF
BOARD OF GOVERNORS V. AGNEW, 329 U.S. 441, STRENOUSLY - AND
UNSUCCESSFULLY - ATTEMPTS TO DISTINGUISH THEM. 

THE STATUTE INVOLVED IN AGNEW, SEC. 32 OF THE BANKING ACT OF 1933, 48
STAT. 194, AS AMENDED, 12 U.S.C. SEC. 78 (1964 ED.), FORBADE ANY
PARTNER OR EMPLOYEE OF A FIRM PRIMARILY ENGAGED IN UNDERWRITING
SECURITIES FROM BEING A DIRECTOR OF A NATIONAL BANK.  THE COURT
EXPRESSLY RECOGNIZED THAT THE STATUTE WAS DIRECTED TO THE "PROBABILITY
OR LIKELIHOOD" THAT A BANK DIRECTOR WHO WAS ALSO A PARTNER OR EMPLOYEE
OF AN UNDERWRITING FIRM "MAY USE HIS INFLUENCE IN THE BANK TO INVOLVE
IT OR ITS CUSTOMERS IN SECURITIES WHICH HIS UNDERWRITING HOUSE HAS IN
ITS PORTFOLIO OR HAS COMMITTED ITSELF TO TAKE."  329 U.S., AT 447. 
AND, AS WE NOTED IN DOUDS, 339 U.S., AT 392, "THERE WAS NO SHOWING, NOR
WAS ONE REQUIRED, THAT ALL EMPLOYEES OF UNDERWRITING FIRMS WOULD ENGAGE
IN SUCH CONDUCT."  SEE ALSO AGNEW, 329 U.S., AT 449. 

IN TERMS OF THE COURT'S ANALYSIS OF THE BILL OF ATTAINDER CLAUSE, NO
MEANINGFUL DISTINCTION MAY BE DRAWN BETWEEN SEC. 32 OF THE BANKING ACT
AND SEC. 504.  BOTH SECTIONS DISQUALIFY A SPECIFICALLY DESCRIBED GROUP,
OFFICERS AND EMPLOYEES OF UNDERWRITING FIRMS IN THE ONE CASE AND
MEMBERS OF THE COMMUNIST PARTY IN THE OTHER.  BOTH SECTIONS MAY BE SAID
TO BE UNDERINCLUSIVE:  OTHERS BESIDES UNDERWRITERS MAY HAVE BUSINESS
INTERESTS CONFLICTING WITH THE DUTIES OF A BANK DIRECTOR AND OTHERS
THAN COMMUNISTS MAY CALL POLITICAL STRIKES.  EQUALLY, BOTH SECTIONS MAY
BE DEEMED OVERINCLUSIVE: NEITHER SECTION FINDS THAT ALL MEMBERS OF THE
GROUP AFFECTED WOULD VIOLATE THEIR OBLIGATIONS TO THE OFFICE FROM WHICH
THEY ARE DISQUALIFIED; SOME MEMBERS WOULD AND PERHAPS OTHERS WOULD
NOT.  BOTH SECTIONS ARE BASED ON A PROBABILITY OR LIKELIHOOD THAT THIS
WOULD OCCUR.  BOTH SECTIONS LEAVE TO THE COURTS THE TASK OF DETERMINING
WHETHER PARTICULAR PERSONS ARE MEMBERS OF THE DESIGNATED GROUPS AND
OCCUPY THE SPECIFIED POSITIONS. 

IN ATTEMPTING TO DISTINGUISH THE TWO SECTIONS, THE COURT STATES THAT
IN ENACTING SEC. 32 OF THE BANKING ACT CONGRESS MADE NO JUDGMENT OR
CONDEMNATION OF ANY SPECIFIC GROUP OF PERSONS.  INSTEAD, THE COURT
REASONS, "CONGRESS RELIED UPON ITS GENERAL KNOWLEDGE OF HUMAN
PSYCHOLOGY, AND CONCLUDED THAT THE CONCURRENT HOLDING OF THE TWO
DESIGNATED POSITIONS WOULD PRESENT A TEMPTATION TO ANY MAN - NOT JUST
CERTAIN MEN OR MEMBERS OF A CERTAIN POLITICAL PARTY."  ANTE, AT 454. 
BUT SEC. 32 DISQUALIFIES ONLY PARTNERS AND EMPLOYEES OF UNDERWRITING
FIRMS, NOT OTHER BUSINESSMEN WITH CONFLICTING INTERESTS.  AND SEC. 504
APPLIES TO ANY MAN WHO OCCUPIES THE TWO POSITIONS OF LABOR UNION LEADER
AND MEMBER OF THE COMMUNIST PARTY.  IF BASED UPON "ITS GENERAL
KNOWLEDGE OF HUMAN PSYCHOLOGY" CONGRESS MAY MAKE FINDINGS ABOUT A GROUP
INCLUDING MEMBERS AND EMPLOYEES OF UNDERWRITING FIRMS WHICH DISQUALIFY
SUCH PERSONS FROM A CERTAIN OFFICE, WHY MAY NOT CONGRESS ON A SIMILAR
BASIS MAKE SUCH A FINDING ABOUT MEMBERS OF THE COMMUNIST PARTY? 
"BECAUSE OF THEIR BUSINESS CONNECTIONS, CARRYING AS THEY DO CERTAIN
LOYALTIES, INTERESTS AND DISCIPLINES," SEC. 32 DISQUALIFIES MEMBERS AND
EMPLOYEES OF UNDERWRITING FIRMS AS POSING "A CONTINUING THREAT OF
PARTICIPATION IN THE HARMFUL ACTIVITIES  ...  ."  DOUDS, 339 U.S., AT
392.  THE SAME MIGHT BE SAID ABOUT SEC. 504, AS WAS SAID ABOUT ITS
PREDECESSOR:  "POLITICAL AFFILIATIONS OF THE KIND HERE INVOLVED, NO
LESS THAN BUSINESS AFFILIATIONS, PROVIDE RATIONAL GROUND FOR THE
LEGISLATIVE JUDGMENT THAT THOSE PERSONS PROSCRIBED BY SEC. 9(H) WOULD
BE SUBJECT TO 'TEMPTING OPPORTUNITIES' TO COMMIT ACTS DEEMED HARMFUL TO
THE NATIONAL ECONOMY.  IN THIS RESPECT, SEC. 9(H) IS NOT UNLIKE A HOST
OF OTHER STATUTES WHICH PROHIBIT SPECIFIED GROUPS OF PERSONS FROM
HOLDING POSITIONS OF POWER AND PUBLIC INTEREST BECAUSE, IN THE
LEGISLATIVE JUDGMENT, THEY THREATEN TO ABUSE THE TRUST THAT IS A
NECESSARY CONCOMITANT OF THE POWER OF OFFICE."  ID., AT 392. 

CONFLICT-OF-INTEREST STATUTES ARE AN ACCEPTED TYPE OF LEGISLATION. 
(FN2)  INDEED, OUR CONSTITUTION CONTAINS A CONFLICT-OF-INTEREST
PROVISION IN ART. I, SEC. 6, CL. 2, WHICH PROHIBITS ANY CONGRESSMAN
FROM SIMULTANEOUSLY HOLDING OFFICE UNDER THE UNITED STATES.  IF THE
COURT WOULD SAVE THE CONFLICT-OF-INTEREST STATUTES, WHICH APPARENTLY IT
WOULD, IT IS DIFFICULT TO UNDERSTAND WHY SEC. 504 IS STRIKEN DOWN AS A
BILL OF ATTAINDER. 

OTHER LEGISLATIVE ENACTMENTS RELEVANT HERE ARE THOSE STATUTES
DISQUALIFYING FELONS FROM OCCUPYING CERTAIN POSITIONS.  THE LEADING
CASE IS HAWKER V. NEW YORK, 170 U.S. 189, WHICH UPHELD A PROVISION
PROHIBITING CONVICTED FELONS FROM PRACTICING MEDICINE AGAINST A CLAIM
THAT, AS APPLIED TO ONE CONVICTED BEFORE ITS ENACTMENT, IT WAS AN EX
POST FACTO LAW.  THE COURT NOTED THAT A LEGISLATURE MAY ESTABLISH
QUALIFICATIONS FOR THE PRACTICE OF MEDICINE, AND CHARACTER MAY BE SUCH
A QUALIFICATION.  CONVICTION OF A FELONY, THE COURT REASONED, MAY BE
EVIDENCE OF CHARACTER: 

"IT IS NOT OPEN TO DOUBT THAT THE COMMISSION OF CRIME  ...  HAS SOME
RELATION TO THE QUESTION OF CHARACTER.  IT IS NOT, AS A RULE, THE GOOD
PEOPLE WHO COMMIT CRIME.  WHEN THE LEGISLATURE DECLARES THAT WHOEVER
HAS VIOLATED THE CRIMINAL LAWS OF THE STATE SHALL BE DEEMED LACKING IN
GOOD MORAL CHARACTER IT IS NOT LAYING DOWN AN ARBITRARY OR FANCIFUL
RULE - ONE HAVING NO RELATION TO THE SUBJECT-MATTER, BUT IS ONLY
APPEALING TO A WELL RECOGNIZED FACT OF HUMAN EXPERIENCE  ...  . 

     *         *    *         *         * 

"IT IS NO ANSWER TO SAY THAT THIS TEST OF CHARACTER IS NOT IN ALL
CASES ABSOLUTELY CERTAIN, AND THAT SOMETIMES IT WORKS HARSHLY. 
DOUBTLESS, ONE WHO HAS VIOLATED THE CRIMINAL LAW MAY THEREAFTER REFORM
AND BECOME IN FACT POSSESSED OF A GOOD MORAL CHARACTER.  BUT THE
LEGISLATURE HAS POWER IN CASES OF THIS KIND TO MAKE A RULE OF UNIVERSAL
APPLICATION, AND NO INQUIRY IS PERMISSIBLE BACK OF THE RULE TO
ASCERTAIN WHETHER THE FACT OF WHICH THE RULE IS MADE THE ABSOLUTE TEST
DOES OR DOES NOT EXIST."  170 U.S., AT 196-197. 

ACCORD, DE VEAU V. BRAISTED, 363 U.S. 144, 159-160 (FRANKFURTER, J.,
ANNOUNCING JUDGMENT) (BILL OF ATTAINDER AND EX POST FACTO CHALLENGES). 

LIKE SEC. 504, THE LEGISLATION CHALLENGED IN HAWKER WAS BOTH
OVERINCLUSIVE AND UNDERINCLUSIVE.  FELONS WERE NOT THE ONLY PERSONS WHO
MIGHT POSSESS CHARACTER DEFECTS MAKING THEM UNSUITABLE PRACTITIONERS OF
MEDICINE; AND, AS THE COURT EXPRESSLY NOTED, NOT ALL FELONS WOULD LACK
GOOD MORAL CHARACTER.  NEVERTHELESS, THE LEGISLATURE WAS PERMITTED TO
DISQUALIFY ALL MEMBERS OF THE CLASS, RATHER THAN BEING REQUIRED TO
DELEGATE TO THE COURTS THE RESPONSIBILITY OF DETERMINING THE CHARACTER
OF EACH INDIVIDUAL BASED ON ALL RELEVANT FACTS, INCLUDING THE PRIOR
CONVICTION.  THE LEGISLATIVE FINDINGS THAT SUSTAINED THE LEGISLATION
ATTACKED IN HAWKER WERE SIMPLY THAT A SUBSTANTIAL NUMBER OF FELONS
WOULD BE LIKELY TO ABUSE THE PRACTICE OF MEDICINE BECAUSE OF THEIR BAD
CHARACTER.  IT IS JUST SUCH FINDINGS RESPECTING THE AVERAGE
PROPENSITIES OF A GIVEN CLASS OF PERSONS TO ENGAGE IN PARTICULAR
CONDUCT THAT THE COURT WILL NOT NOW PERMIT UNDER THE BILL OF ATTAINDER
CLAUSE.  THOUGH THE COURT MAKES NO ATTEMPT TO DISTINGUISH THE HAWKER
TYPE LAWS IT APPARENTLY WOULD SAVE THEM, SEE TROP V. DULLES, 356 U.S.
86, 96-97 (WARREN, C.J., ANNOUNCING JUDGMENT), AND WITH THEM THE
PROVISION OF THE STATUTE NOW BEFORE THE COURT WHICH DISQUALIFIES FELONS
FROM HOLDING UNION OFFICE.  (FN3) 

THE COURT APPARENTLY AGREES THAT THE SUBVERSIVE ACTIVITIES CONTROL
ACT WAS NOT A BILL OF ATTAINDER WITH REGARD TO THE COMMUNIST PARTY
BECAUSE, AS THE COURT POINTED OUT IN COMMUNIST PARTY V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, 367 U.S. 1, THE FINDING THAT THE PARTY WAS A
COMMUNIST-ACTION ORGANIZATION WAS NOT MADE BY THE LEGISLATURE BUT WAS
MADE ADMINISTRATIVELY, AFTER A TRIAL-TYPE HEARING AND SUBJECT TO
JUDICIAL REVIEW.  BUT THIS APPARENTLY DOES NOT SETTLE WHETHER THE
STATUTE IS A BILL OF ATTAINDER WITH RESPECT TO PARTY MEMBERS; FOR UNDER
TODAY'S APPROACH, A FINDING ABOUT THE PARTY AND ABOUT SOME OF ITS
MEMBERS DOES NOT CURE THE VICE OF OVERINCLUSIVENESS.  THE SUBVERSIVE
ACTIVITIES CONTROL ACT ATTACHES CERTAIN DISQUALIFICATIONS TO EACH PARTY
MEMBER FOLLOWING THE ADMINISTRATIVE-JUDICIAL FINDING THAT THE PARTY IS
A COMMUNIST-ACTION ORGANIZATION.  AMONG OTHER THINGS, EACH PARTY MEMBER
IS DISQUALIFIED FROM HOLDING UNION OFFICE, ALMOST THE SAME
DISQUALIFICATION AS IS INVOLVED HERE.  SUBVERSIVE ACTIVITIES CONTROL
ACT OF 1950, SEC. 5(A)(1)(E), ADDED BY THE ACT OF AUG. 24, 1954, SEC.
6, 68 STAT. 777, 50 U.S.C. SEC. 784(A)(1)(E) (1958 ED.).  I DO NOT SEE
HOW THIS AND THE OTHER CONSEQUENCES ATTACHED TO PARTY MEMBERSHIP IN
THAT ACT COULD SURVIVE EXAMINATION UNDER THE PRINCIPLES ANNOUNCED
TODAY. 

ON THE OTHER HAND, IF THE STATUTES INVOLVED IN HAWKER AND AGNEW ARE
NOT BILLS OF ATTAINDER, HOW CAN THE SUBVERSIVE ACTIVITIES CONTROL ACT
BE AN ATTAINDER WITH RESPECT TO MEMBERS OF THE COMMUNIST PARTY?  IN THE
COMMUNIST PARTY CASE, THE BOARD FOUND THAT THE "PARTY'S PRINCIPAL
LEADERS AND A SUBSTANTIAL NUMBER OF ITS MEMBERS ARE SUBJECT TO AND
RECOGNIZE THE DISCIPLINARY POWER OF THE SOVIET UNION AND ITS
REPRESENTATIVES.  THIS EVIDENCES DOMINATION AND CONTROL OVER THE PARTY
BY THE SOVIET UNION, AND A PURPOSE TO ADVANCE THE OBJECTIVES OF THE
WORLD COMMUNIST MOVEMENT."  MODIFIED REPORT OF THE BOARD, DECEMBER 18,
1956, IN RECORD IN THAT CASE, P. 2538.  THAT FINDING WAS EXPRESSLY
SUSTAINED BY THIS COURT.  367 U.S. 1, 57.  CERTAINLY, IF HAWKER AND
AGNEW ARE TO BE FOLLOWED AT ALL, THESE NONLEGISLATIVE FINDINGS
ESTABLISH A SUFFICIENT PROBABILITY OR LIKELIHOOD WITH REGARD TO PARTY
MEMBERS - A SUFFICIENT TEMPTATION TO PARTY MEMBERS WHO ARE ALSO UNION
OFFICERS - TO PERMIT THE LEGISLATURE TO DISQUALIFY PARTY MEMBERS FROM
UNION OFFICE AS IT DID IN THE SUBVERSIVE ACTIVITIES CONTROL ACT. 

AND IF THE DISQUALIFICATION OF PARTY MEMBERS IN THE SUBVERSIVE
ACTIVITIES CONTROL ACT IS NOT A BILL OF ATTAINDER, NEITHER IS SEC.
504.  IF IT IS SEC. 504'S SPECIFIC DESIGNATION OF THE COMMUNIST PARTY
AND ITS MEMBERS WHICH CONCERNS THE COURT - IF THE COURT WOULD HAVE THE
SAME CONCERN IF THE STATUTE IN AGNEW HAD DISQUALIFIED THE MEMBERS OF A
PARTICULAR UNDERWRITING FIRM - IT SEEMS TO ME THAT AT THIS POINT THIS
VICE IS NO VICE AT ALL; FOR THE CONGRESS HAS PROVIDED IN ANOTHER
STATUTE, THE SUBVERSIVE ACTIVITIES CONTROL ACT, FOR AN ADJUDICATION
ABOUT COMMUNIST-ACTION ORGANIZATIONS, THE NATURE OF THE PARTY HAS NOW
BEEN ADJUDICATED AND AN ADEQUATE PROBABILITY ABOUT THE FUTURE CONDUCT
OF ITS MEMBERS ESTABLISHED TO JUSTIFY THE DISQUALIFICATION WHICH
CONGRESS HAS IMPOSED.  COMPARE SCHWARE V. BOARD OF BAR EXAMINERS, 353
U.S. 232, 244 (ABSENT FINDINGS RESPECTING NATURE OF COMMUNIST PARTY AT
TIME OF BAR APPLICANT'S MEMBERSHIP, MEMBERSHIP IN PARTY 15 YEARS PRIOR
TO APPLICATION PROVIDES NO RATIONAL GROUND FOR DISQUALIFICATION). 

THIS, OF COURSE, IS NOT THE PATH THE COURT FOLLOWS.  SECTION 504 IS
SAID TO IMPOSE PUNISHMENT ON SPECIFIC INDIVIDUALS BECAUSE IT HAS
DISQUALIFIED ALL COMMUNIST PARTY MEMBERS WITHOUT PROVIDING FOR A
JUDICIAL DETERMINATION AS TO EACH MEMBER THAT HE WILL CALL A POLITICAL
STRIKE.  A LIKELIHOOD OF DOING SO BASED ON MEMBERSHIP IS NOT ENOUGH. 
BY THE SAME TOKEN, A STATUTE DISQUALIFYING COMMUNISTS (OR AUTHORIZING
THE EXECUTIVE BRANCH TO DO SO) FROM HOLDING SENSITIVE POSITIONS IN THE
GOVERNMENT WOULD BE AUTOMATICALLY INFIRM, AS WOULD A REQUIREMENT THAT
EMPLOYEES OF THE CENTRAL INTELLIGENCE AGENCY OR THE NATIONAL SECURITY
AGENCY DISCLAIM MEMBERSHIP IN THE COMMUNIST PARTY, UNLESS IN EACH CASE
IT IS PROVED BY EVIDENCE OTHER THAN MEMBERSHIP IN THE COMMUNIST PARTY,
THE NATURE OF WHICH HAS ALREADY BEEN ADJUDICATED, THAT THE INDIVIDUAL
WOULD COMMIT ACTS OF DISLOYALTY OR SUBORDINATE HIS OFFICIAL
UNDERTAKINGS TO THE INTERESTS OF THE PARTY. 

BUT HOW DOES ONE PROVE THAT A PERSON WOULD BE DISLOYAL?  THE
COMMUNIST PARTY'S ILLEGAL PURPOSE AND ITS DOMINATION BY A FOREIGN POWER
HAVE ALREADY BEEN ADJUDICATED, BOTH ADMINISTRATIVELY AND JUDICIALLY. 
IF THIS DOES NOT IN ITSELF PROVIDE A SUFFICIENT PROBABILITY WITH
RESPECT TO THE INDIVIDUAL WHO PERSISTS IN REMAINING A MEMBER OF THE
PARTY, OR IF A PROBABILITY IS IN ANY EVENT INSUFFICIENT, WHAT EVIDENCE
WITH REGARD TO THE INDIVIDUAL WILL BE SUFFICIENT TO DISQUALIFY HIM?  IF
HE MUST BE APPREHENDED IN THE ACT OF CALLING ONE POLITICAL STRIKE OR IN
ONE ACT OF DISLOYALTY BEFORE STEPS CAN BE TAKEN TO EXCLUDE HIM FROM
OFFICE, THERE IS LITTLE OR NOTHING LEFT OF THE PREVENTIVE OR
PROPHYLACTIC FUNCTION OF SEC. 504 OR OF THE STATUTES SUCH AS THE COURT
HAD BEFORE IT IN HAWKER AND AGNEW. 

EXAMPLES OF STATUTES THAT WILL NOW BE SUSPECT BECAUSE OF THE COURT'S
OPINION BUT WERE, UNTIL TODAY, UNANIMOUSLY ACCEPTED AS LEGITIMATE
EXERCISES OF LEGISLATIVE POWER COULD EASILY BE MULTIPLIED.   SUCH A
CATALOGUE IN ITSELF WOULD LEAD ONE TO INQUIRE WHETHER THE COURT'S
REASONING DOES NOT CONTAIN SOME FLAW THAT EXPLAINS SUCH PERVERSE
RESULTS.                                             II. 

ONE MIGHT WELL BEGIN BY CHALLENGING THE COURT'S PREMISE THAT THE BILL
OF ATTAINDER CLAUSE WAS INTENDED TO PROVIDE A GENERAL DIVIDING LINE
BETWEEN LEGISLATIVE AND JUDICIAL FUNCTIONS AND THEREBY TO OPERATE AS
THE CHIEF MEANS OF IMPLEMENTING THE SEPARATION OF POWERS.  WHILE IT
MUST BE CONCEDED THAT OUR SYSTEM OF GOVERNMENT IS BASED ON THE
SEPARATION OF POWERS AND THAT THE PROHIBITION ON BILLS OF ATTAINDER IS
A JUDICIALLY ENFORCEABLE RESTRAINT ON LEGISLATIVE POWER AND THEREFORE
CONSTITUTES ONE AMONG THE MANY MECHANISMS IMPLEMENTING THE SEPARATION
OF POWERS, THAT CONCLUSION IS THE MOST THAT CAN BE GLEANED FROM THE
AUTHORITIES CITED BY THE COURT.  SOME, LIKE THE STATEMENT QUOTED FROM
CHIEF JUSTICE MARSHALL, FLETCHER V. PECK, 6 CRANCH 87, 136, REFLECT
VIEWS CONCERNING "WHETHER THE NATURE OF SOCIETY AND OF GOVERNMENT DOES
NOT PRESCRIBE SOME LIMITS TO THE LEGISLATIVE POWER," ID., AT 135,
RATHER THAN AN ANALYSIS OF THE BILL-OF-ATTAINDER PROVISION.  NONE
ASSIGNS A PRE-EMINENT POSITION TO THAT PROVISION AS COMPARED WITH OTHER
RESTRAINTS ON THE LEGISLATURE. 

ON THE OTHER HAND, THERE ARE SUBSTANTIAL REASONS FOR CONCLUDING THAT
THE BILL OF ATTAINDER CLAUSE MAY NOT BE REGARDED AS ENSHRINING ANY
GENERAL RULE DISTINGUISHING BETWEEN THE LEGISLATIVE AND JUDICIAL
FUNCTIONS.  CONGRESS MAY PASS LEGISLATION AFFECTING SPECIFIC PERSONS IN
THE FORM OF PRIVATE BILLS.  IT MAY ALSO PUNISH PERSONS WHO COMMIT
CONTEMPT BEFORE IT.  SO TOO, ONE MAY NOTE THAT IF ART. I, SEC. 9, CL.
3, IMMORTALIZES SOME NOTION OF THE SEPARATION OF POWERS AT THE FEDERAL
LEVEL, THEN ART. I, SEC. 10, NECESSARILY DOES THE SAME FOR THE STATES. 
BUT IT HAS LONG BEEN RECOGNIZED BY THIS COURT THAT "WHETHER THE
LEGISLATIVE, EXECUTIVE AND JUDICIAL POWERS OF A STATE SHALL BE KEPT
ALTOGETHER DISTINCT AND SEPARATE, OR WHETHER PERSONS OR COLLECTIONS OF
PERSONS BELONGING TO ONE DEPARTMENT MAY, IN RESPECT TO SOME MATTERS,
EXERT POWERS WHICH, STRICTLY SPEAKING, PERTAIN TO ANOTHER DEPARTMENT OF
GOVERNMENT, IS FOR THE DETERMINATION OF THE STATE."  DREYER V.
ILLINOIS, 187 U.S. 71, 84; ACCORD, E.G., REETZ V. MICHIGAN, 188 U.S.
505, 507; CARFER V. CALDWELL, 200 U.S. 293, 297; SWEEZY V. NEW
HAMPSHIRE, 354 U.S. 234, 255 (WARREN, C.J., ANNOUNCING JUDGMENT), 256
257 (FRANKFURTER, J., CONCURRING), 268 (CLARK, J., DISSENTING). 

                                       III. 

THE BASIC FLAW IN THE COURT'S REASONING, HOWEVER, IS ITS TOO NARROW
VIEW OF THE LEGISLATIVE PROCESS.  THE COURT IS CONCERNED TO SEPARATE
THE LEGISLATIVE AND JUDICIAL FUNCTIONS BY ENSURING THAT THE LEGISLATURE
DOES NOT INFRINGE THE JUDICIAL FUNCTION OF APPLYING GENERAL RULES TO
SPECIFIC CIRCUMSTANCES.  CONGRESS IS HELD TO HAVE VIOLATED THE BILL OF
ATTAINDER CLAUSE HERE BECAUSE, ON THE ONE HAND, SEC. 504 DOES NOT
ENCOMPASS THE WHOLE CLASS OF PERSONS HAVING CHARACTERISTICS THAT WOULD
MAKE THEM LIKELY TO CALL POLITICAL STRIKES AND, ON THE OTHER HAND, SEC.
504 DOES SINGLE OUT A PARTICULAR GROUP, MEMBERS OF THE COMMUNIST PARTY,
NOT ALL OF WHOM POSSESS SUCH CHARACTERISTICS.  BECAUSE OF THIS
COMBINATION OF UNDERINCLUSIVENESS AND OVERINCLUSIVENESS THE COURT
CONCLUDES THAT COMMUNIST PARTY MEMBERS WERE SINGLED OUT FOR PUNISHMENT,
THUS REJECTING THE GOVERNMENT'S CONTENTION THAT SEC. 504 HAS SOLELY A
REGULATORY AIM. 

THE COURT'S CONCLUSION THAT A STATUTE WHICH IS BOTH UNDERINCLUSIVE
AND OVERINCLUSIVE MUST BE DEEMED TO HAVE BEEN ADOPTED WITH A PUNITIVE
PURPOSE ASSUMES THAT LEGISLATURES NORMALLY DEAL WITH BROAD CATEGORIES
AND ATTACK ALL OF AN EVIL AT A TIME.  OR IF PARTIAL MEASURES ARE
UNDERTAKEN, A LEGISLATURE SINGLES OUT A PARTICULAR GROUP FOR REGULATION
ONLY BECAUSE THE GROUP LABEL IS A "SHORTHAND PHRASE" FOR TRAITS THAT
ARE CHARACTERISTIC OF THE BROADER EVIL.  BUT THIS COURT HAS LONG
RECOGNIZED IN EQUAL PROTECTION CASES THAT A LEGISLATURE MAY PREFER TO
DEAL WITH ONLY PART OF AN EVIL.  SEE, E.G., RAILWAY EXPRESS AGENCY,
INC. V. NEW YORK, 336 U.S. 106; SEMLER V. OREGON STATE BOARD OF DENTAL
EXAMINERS, 294 U.S. 608; BRYANT V. ZIMMERMAN, 278 U.S. 63; PATSONE V.
PENNSYLVANIA, 232 U.S. 138.  AND IT IS EQUALLY TRUE THAT A GROUP MAY BE
SINGLED OUT FOR REGULATION WITHOUT ANY PUNITIVE PURPOSE EVEN WHEN NOT
ALL MEMBERS OF THE GROUP WOULD BE LIKELY TO ENGAGE IN THE FEARED
CONDUCT.  "IF THE CLASS DISCRIMINATED AGAINST IS OR REASONABLY MIGHT BE
CONSIDERED TO DEFINE THOSE FROM WHOM THE EVIL MAINLY IS TO BE FEARED,
IT PROPERLY MAY BE PICKED OUT."  PATSONE V. PENNSYLVANIA, 232 U.S., AT
144.  THAT IS, THE FOCUS OF LEGISLATIVE ATTENTION MAY BE THE
SUBSTANTIALLY GREATER LIKELIHOOD THAT SOME MEMBERS OF THE GROUP WOULD
ENGAGE IN THE FEARED CONDUCT COMPARED TO THE LIKELIHOOD THAT MEMBERS OF
OTHER GROUPS WOULD DO SO.  THIS IS TRUE BECAUSE LEGISLATORS SELDOM DEAL
WITH ABSTRACTIONS BUT WITH CONCRETE SITUATIONS AND THE REGULATION OF
SPECIFIC ABUSES.  THUS MANY REGULATORY MEASURES ARE ENACTED AFTER
INVESTIGATION INTO PARTICULAR INCIDENTS OR THE PRACTICES OF PARTICULAR
GROUPS AND AFTER FINDINGS BY THE LEGISLATURE THAT THE PRACTICES
DISCLOSED ARE INIMICAL TO THE PUBLIC INTEREST AND SHOULD BE PREVENTED
IN THE FUTURE.  NOT SURPRISINGLY, THE RESULTING LEGISLATION MAY REFLECT
IN ITS SPECIFICITY THE SPECIFICITY OF THE PRECEDING LEGISLATIVE
INQUIRY.  SEE UNITED STATES V. BOSTON & M. R. CO., 380 U.S. 157, 161
162.  BUT THE FACT THAT IT DOES SHOULD NOT BE TAKEN, IN ITSELF, TO BE
CONCLUSIVE THAT THE LEGISLATURE'S PURPOSE IS PUNITIVE.  ADMITTEDLY THE
DEGREE OF SPECIFICITY IS A RELEVANT FACTOR - AS WHEN INDIVIDUALS ARE
SINGLED OUT BY NAME - BUT BECAUSE IN MANY INSTANCES SPECIFICITY OF THE
DEGREE HERE HELD IMPERMISSIBLE MAY BE WHOLLY CONSISTENT WITH A
REGULATORY, RATHER THAN A PUNITIVE PURPOSE, THE COURT'S PER SE APPROACH
CUTS TOO BROADLY AND INVALIDATES LEGITIMATE LEGISLATIVE ACTIVITY. 

                                        IV. 

PUTTING ASIDE THE COURT'S PER SE APPROACH BASED ON THE NATURE OF THE
CLASSIFICATION SPECIFIED BY THE LEGISLATION, WE MUST STILL TEST SEC.
504 AGAINST THE TRADITIONAL DEFINITION OF THE BILL OF ATTAINDER AS
LEGISLATIVE PUNISHMENT OF PARTICULAR INDIVIDUALS.  IN MY VIEW, SEC. 504
DOES NOT IMPOSE PUNISHMENT AND IS NOT A BILL OF ATTAINDER. 

WE HAVE SAID THAT "ONLY THE CLEAREST PROOF COULD SUFFICE" TO
ESTABLISH THAT CONGRESS' PURPOSE WAS PUNITIVE RATHER THAN REGULATORY. 
FLEMMING V. NESTOR, 363 U.S. 603, 617.  A PUNITIVE PURPOSE HAS BEEN
FOUND WHEN IT COULD BE SAID THAT A STATUTE PASSED AMID THE FIERCE
PASSIONS AROUSED BY THE CIVIL WAR BORE NO RATIONAL CONNECTION TO ANY
PERMISSIBLE LEGISLATIVE PURPOSE.  CUMMINGS V. MISSOURI, 4 WALL.  277,
319, 322; SEE DENT V. WEST VIRGINIA, 129 U.S. 114, 128; HAWKER V. NEW
YORK, 170 U.S. 189, 198.  THE IMPOSITION OF A PARTICULARLY HARSH
DEPRIVATION WITHOUT ANY DISCERNIBLE LEGITIMATE LEGISLATIVE PURPOSE HAS
SIMILARLY BEEN CHARACTERIZED AS PENAL.  TROP V. DULLES, 356 U.S. 86
(WARREN, C.J., ANNOUNCING JUDGMENT).  SIMILARLY A PUNITIVE PURPOSE HAS
BEEN FOUND WHEN SUCH A PURPOSE CLEARLY APPEARED IN THE LEGISLATIVE
HISTORY.  KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, 169; UNITED STATES
V. LOVETT, 328 U.S. 303, 308-314.  IN OTHER CASES THE ANALYSIS IS MORE
DIFFICULT.  WE SUMMARIZED THE RELEVANT CONSIDERATIONS IN KENNEDY V.
MENDOZA-MARTINEZ, SUPRA: 

"WHETHER THE SANCTION INVOLVES AN AFFIRMATIVE DISABILITY OR
RESTRAINT, WHETHER IT HAS HISTORICALLY BEEN REGARDED AS A PUNISHMENT,
WHETHER IT COMES INTO PLAY ONLY ON A FINDING OF SCIENTER, WHETHER ITS
OPERATION WILL PROMOTE THE TRADITIONAL AIMS OF PUNISHMENT - RETRIBUTION
AND DETERRENCE, WHETHER THE BEHAVIOR TO WHICH IT APPLIES IS ALREADY A
CRIME, WHETHER AN ALTERNATIVE PURPOSE TO WHICH IT MAY RATIONALLY BE
CONNECTED IS ASSIGNABLE FOR IT, AND WHETHER IT APPEARS EXCESSIVE IN
RELATION TO THE ALTERNATIVE PURPOSE ASSIGNED ARE ALL RELEVANT TO THE
INQUIRY, AND MAY OFTEN POINT IN DIFFERING DIRECTIONS."  372 U.S., AT
168-169. 

AN APPLICATION OF THESE CRITERIA TO SEC. 504 COMPELS THE CONCLUSION
THAT IT IS REGULATORY RATHER THAN PUNITIVE. 

CONGRESS' CONCERN WITH THE POSSIBILITY OF POLITICAL STRIKES IS NOT
SIMPLY A FICTIONAL CONCERN ADVANCED TO MASK A PUNITIVE PURPOSE. 
CONGRESS HAS SOUGHT TO FORESTALL POLITICAL STRIKES SINCE 1947, WHEN IT
ADOPTED SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT, WHICH WAS
SUSTAINED AS A REASONABLE REGULATION IN AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382.  SECTION 504 WAS ADOPTED AS A FAIRER AND MORE
EFFECTIVE METHOD OF DEALING WITH THE SAME EVIL.  H.R. REP. NO. 741,
86TH CONG., 1ST SESS. (1959), P. 33; 1 LEG.  HIST.  LMRDA 791.  SEC.
9(H) HAD PROVED INEFFECTIVE BECAUSE MANY COMMUNISTS WOULD TAKE THE
PRESCRIBED OATH, WHICH MEANT THE ONLY SANCTION AVAILABLE WAS A PERJURY
PROSECUTION THAT PRESENTED SERIOUS DIFFICULTIES OF PROOF.  SEE HEARINGS
BEFORE THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES, COMMUNIST
INFILTRATION OF VITAL INDUSTRIES AND CURRENT COMMUNIST TECHNIQUES IN
THE CHICAGO, ILLINOIS, AREA, 86TH CONG., 1ST SESS. (1959), PP. 519,
576; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON LABOR
AND PUBLIC WELFARE, COMMUNIST DOMINATION OF UNIONS AND NATIONAL
SECURITY, 82D CONG., 2D SESS. (1952), P. 54.  MOREOVER, THE OATH
REQUIREMENT CREATED INEQUITIES BOTH BECAUSE THE DISQUALIFICATION
IMPOSED WAS VISITED ON THE WHOLE UNION MEMBERSHIP AND BECAUSE THE
TAKING OF AN OATH WAS EXACTED OF ALL UNION LEADERS, MANY OF WHOM
RESENTED THE REQUIREMENT.  SEE AMERICAN COMMUNICATIONS ASSN. V. DOUDS,
339 U.S., AT 434-435 (JACKSON, J., CONCURRING AND DISSENTING); S. REP.
NO. 187, 86TH CONG., 1ST SESS. (1959), PP. 7, 9; 1 LEG.  HIST.  LMRDA
403, 405.  IT WAS OBVIOUSLY REASONABLE FOR CONGRESS TO SUBSTITUTE SEC.
504 FOR SEC. 9(H), AND NO PUNITIVE PURPOSE MAY BE INFERRED FROM SUCH
CONGRESSIONAL ACTION. 

NOR CAN IT BE DENIED THAT SEC. 504 IS REASONABLY RELATED TO A
PERMISSIBLE LEGISLATIVE OBJECTIVE.  IN AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, WE HELD THAT "CONGRESS COULD RATIONALLY FIND THAT THE COMMUNIST
PARTY IS NOT LIKE OTHER POLITICAL PARTIES IN ITS UTILIZATION OF
POSITIONS OF UNION LEADERSHIP AS MEANS BY WHICH TO BRING ABOUT STRIKES
...  ."  339 U.S., AT 391, AND THEREFORE CONGRESS COULD RATIONALLY
INFER THAT MEMBERS OF THE COMMUNIST PARTY WERE LIKELY TO CALL POLITICAL
STRIKES.  SEE ALSO COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL
BOARD, 367 U.S. 1, 93-94, 112.  IN 1956 THE SUBVERSIVE ACTIVITIES
CONTROL BOARD FOUND, AFTER A TRIAL-TYPE HEARING, THAT THE PARTY'S
PRINCIPAL LEADERS AND A SUBSTANTIAL NUMBER OF ITS MEMBERS RECOGNIZE THE
DISCIPLINARY POWER OF THE SOVIET UNION.  WITHOUT QUESTION THE FINDINGS
PREVIOUSLY MADE BY CONGRESS AND THE SUBVERSIVE ACTIVITIES CONTROL BOARD
AFFORDED A RATIONAL BASIS IN 1959 FOR CONGRESS TO CONCLUDE THAT
COMMUNISTS WERE LIKELY TO CALL POLITICAL STRIKES, AND SUFFICIENTLY MORE
LIKELY THAN OTHERS TO DO SO THAT SPECIAL MEASURES COULD APPROPRIATELY
BE ENACTED TO DEAL WITH THE PARTICULAR THREAT POSED. 

IN VIEW OF CONGRESS' DEMONSTRATED CONCERN IN PREVENTING FUTURE
CONDUCT - POLITICAL STRIKES - AND THE REASONABLENESS OF THE MEANS
ADOPTED TO THAT END, I CANNOT CONCLUDE THAT SEC. 504 HAD A PUNITIVE
PURPOSE OR THAT IT CONSTITUTES A BILL OF ATTAINDER.  I INTIMATE NO
OPINION ON THE ISSUES THAT THE COURT DOES NOT REACH. 

FN1  AN OVERBROADNESS CHALLENGE COULD ALSO BE MADE UNDER THE FIRST
AMENDMENT ON THE GROUND THAT IN SEC. 504 CONGRESS HAS TOO BROADLY AND
INDISCRIMINATELY VISITED DISABILITIES ON A CLASS DEFINED IN TERMS OF
ASSOCIATIONAL TIES.  SEE APTHEKER V. SECRETARY OF STATE, 378 U.S. 500. 
BUT THE COURT EXPRESSLY DISAVOWS DECISION OF FIRST AMENDMENT CLAIMS,
AND I LIKEWISE PUT SUCH QUESTIONS ASIDE. 

FN2  SEE, E.G., SEC. 10 OF THE CLAYTON ACT, 38 STAT. 734, 15 U.S.C.
SEC. 20 (1964 ED.)  (REQUIRING COMPETITIVE BIDDING FOR CERTAIN
TRANSACTIONS BETWEEN A COMMON CARRIER AND OTHER CORPORATIONS WHEN THERE
ARE COMMON DIRECTORS), UNITED STATES V. BOSTON & M. R. CO., 380 U.S.
157; SEC. 16(B) OF THE SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 896,
15 U.S.C. SEC.  78PB) (1964 ED.)(PROVIDING THAT PROFITS MADE BY
DIRECTORS, OFFICERS, AND PRINCIPAL SHAREHOLDERS THROUGH SHORT-SWING
TRANSACTIONS IN CORPORATION STOCK SHALL INURE TO BENEFIT OF
CORPORATION), BLAU V. LEHMAN, 368 U.S. 403, 411-413; SEC. 310(B) OF THE
TRUST INDENTURE ACT OF 1939, 53 STAT. 1157 (MAKING CERTAIN CONFLICTING
INTERESTS GROUNDS FOR DISQUALIFICATION OF INDENTURE TRUSTEES.) 

FN3  FOR A PARTIAL LISTING OF SIMILAR STATUTES, SEE DE VEAU V.
BRAISTED, 363 U.S. 144, 159 (FRANKFURTER, J., ANNOUNCING JUDGMENT). 
DEVEAU V. BRAISTED ITSELF SUSTAINED AGAINST A BILL OF ATTAINDER
CHALLENGE, WITHOUT DISSENT ON THIS ISSUE, A STATE STATUTE DISQUALIFYING
FELONS FROM HOLDING OFFICE IN WATERFRONT LABOR UNIONS. 
..END :




















GRISWOLD V. CONNECTICUT 381 U.S. 479 


NO. 496.  ARGUED MARCH 29-30, 1965.  - DECIDED JUNE 7, 1965.  - 151
CONN. 544, 200 A.2D 479, REVERSED. 


APPELLANTS, THE EXECUTIVE DIRECTOR OF THE PLANNED PARENTHOOD LEAGUE OF
CONNECTICUT, AND ITS MEDICAL DIRECTOR, A LICENSED PHYSICIAN, WERE
CONVICTED AS ACCESSORIES FOR GIVING MARRIED PERSONS INFORMATION AND
MEDICAL ADVICE ON HOW TO PREVENT CONCEPTION AND, FOLLOWING EXAMINATION,
PRESCRIBING A CONTRACEPTIVE DEVICE OR MATERIAL FOR THE WIFE'S USE.  A
CONNECTICUT STATUTE MAKES IT A CRIME FOR ANY PERSON TO USE ANY DRUG OR
ARTICLE TO PREVENT CONCEPTION.  APPELLANTS CLAIMED THAT THE ACCESSORY
STATUTE AS APPLIED VIOLATED THE FOURTEENTH AMENDMENT.  AN INTERMEDIATE
APPELLATE COURT AND THE STATE'S HIGHEST COURT AFFIRMED THE JUDGMENT. 
HELD: 

1.  APPELLANTS HAVE STANDING TO ASSERT THE CONSTITUTIONAL RIGHTS OF
THE MARRIED PEOPLE.  TILESTON V. ULLMAN, 318 U.S. 44, DISTINGUISHED. 
P. 481. 

2.  THE CONNECTICUT STATUTE FORBIDDING USE OF CONTRACEPTIVES VIOLATES
THE RIGHT OF MARITAL PRIVACY WHICH IS WITHIN THE PENUMBRA OF SPECIFIC
GUARANTEES OF THE BILL OF RIGHTS.  PP. 481-486. 

GRISWOLD ET AL. V. CONNECTICUT. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLANT GRISWOLD IS EXECUTIVE DIRECTOR OF THE PLANNED PARENTHOOD
LEAGUE OF CONNECTICUT.  APPELLANT BUXTON IS A LICENSED PHYSICIAN AND A
PROFESSOR AT THE YALE MEDICAL SCHOOL WHO SERVED AS MEDICAL DIRECTOR FOR
THE LEAGUE AT ITS CENTER IN NEW HAVEN - A CENTER OPEN AND OPERATING
FROM NOVEMBER 1 TO NOVEMBER 10, 1961, WHEN APPELLANTS WERE ARRESTED. 

THEY GAVE INFORMATION, INSTRUCTION, AND MEDICAL ADVICE TO MARRIED
PERSONS AS TO THE MEANS OF PREVENTING CONCEPTION.  THEY EXAMINED THE
WIFE AND PRESCRIBED THE BEST CONTRACEPTIVE DEVICE OR MATERIAL FOR HER
USE.  FEES WERE USUALLY CHARGED, ALTHOUGH SOME COUPLES WERE SERVICED
FREE. 

THE STATUTES WHOSE CONSTITUTIONALITY IS INVOLVED IN THIS APPEAL ARE
SECS. 53-32 AND 54-196 OF THE GENERAL STATUTES OF CONNECTICUT (1958
REV.).  THE FORMER PROVIDES: 

"ANY PERSON WHO USES ANY DRUG, MEDICINAL ARTICLE OR INSTRUMENT FOR
THE PURPOSE OF PREVENTING CONCEPTION SHALL BE FINED NOT LESS THAN FIFTY
DOLLARS OR IMPRISONED NOT LESS THAN SIXTY DAYS NOR MORE THAN ONE YEAR
OR BE BOTH FINED AND IMPRISONED." 


"ANY PERSON WHO ASSISTS, ABETS, COUNSELS, CAUSES, HIRES OR COMMANDS
ANOTHER TO COMMIT ANY OFFENSE MAY BE PROSECUTED AND PUNISHED AS IF HE
WERE THE PRINCIPAL OFFENDER." 

THE APPELLANTS WERE FOUND GUILTY AS ACCESSORIES AND FINED $100 EACH,
AGAINST THE CLAIM THAT THE ACCESSORY STATUTE AS SO APPLIED VIOLATED THE
FOURTEENTH AMENDMENT.  THE APPELLATE DIVISION OF THE CIRCUIT COURT
AFFIRMED.  THE SUPREME COURT OF ERRORS AFFIRMED THAT JUDGMENT.  151
CONN. 544, 200 A.2D 479.  WE NOTED PROBABLE JURISDICTION.  379 U.S.
926. 

WE THINK THAT APPELLANTS HAVE STANDING TO RAISE THE CONSTITUTIONAL
RIGHTS OF THE MARRIED PEOPLE WITH WHOM THEY HAD A PROFESSIONAL
RELATIONSHIP.  TILESTON V. ULLMAN, 318 U.S. 44, IS DIFFERENT, FOR THERE
THE PLAINTIFF SEEKING TO REPRESENT OTHERS ASKED FOR A DECLARATORY
JUDGMENT.  IN THAT SITUATION WE THOUGHT THAT THE REQUIREMENTS OF
STANDING SHOULD BE STRICT, LEST THE STANDARDS OF "CASE OR CONTROVERSY"
IN ARTICLE III OF THE CONSTITUTION BECOME BLURRED.  HERE THOSE DOUBTS
ARE REMOVED BY REASON OF A CRIMINAL CONVICTION FOR SERVING MARRIED
COUPLES IN VIOLATION OF AN AIDING-AND-ABETTING STATUTE.  CERTAINLY THE
ACCESSORY SHOULD HAVE STANDING TO ASSERT THAT THE OFFENSE WHICH HE IS
CHARGED WITH ASSISTING IS NOT, OR CANNOT CONSTITUTIONALLY BE, A CRIME. 

THIS CASE IS MORE AKIN TO TRUAX V. RAICH, 239 U.S. 33, WHERE AN
EMPLOYEE WAS PERMITTED TO ASSERT THE RIGHTS OF HIS EMPLOYER; TO PIERCE
V. SOCIETY OF SISTERS, 268 U.S. 510, WHERE THE OWNERS OF PRIVATE
SCHOOLS WERE ENTITLED TO ASSERT THE RIGHTS OF POTENTIAL PUPILS AND
THEIR PARENTS; AND TO BARROWS V. JACKSON, 346 U.S. 249, WHERE A WHITE
DEFENDANT, PARTY TO A RACIALLY RESTRICTIVE COVENANT, WHO WAS BEING SUED
FOR DAMAGES BY THE COVENANTORS BECAUSE SHE HAD CONVEYED HER PROPERTY TO
NEGROES, WAS ALLOWED TO RAISE THE ISSUE THAT ENFORCEMENT OF THE
COVENANT VIOLATED THE RIGHTS OF PROSPECTIVE NEGRO PURCHASERS TO EQUAL
PROTECTION, ALTHOUGH NO NEGRO WAS A PARTY TO THE SUIT.  AND SEE MEYER
V. NEBRASKA, 262 U.S. 390; ADLER V. BOARD OF EDUCATION, 342 U.S. 485;
NAACP V. ALABAMA, 357 U.S. 449; NAACP V. BUTTON, 371 U.S. 415.  THE
RIGHTS OF HUSBAND AND WIFE, PRESSED HERE, ARE LIKELY TO BE DILUTED OR
ADVERSELY AFFECTED UNLESS THOSE RIGHTS ARE CONSIDERED IN A SUIT
INVOLVING THOSE WHO HAVE THIS KIND OF CONFIDENTIAL RELATION TO THEM. 

COMING TO THE MERITS, WE ARE MET WITH A WIDE RANGE OF QUESTIONS THAT
IMPLICATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
OVERTONES OF SOME ARGUMENTS SUGGEST THAT LOCHNER V. NEW YORK, 198 U.S.
45, SHOULD BE OUR GUIDE.  BUT WE DECLINE THAT INVITATION AS WE DID IN
WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379; OLSEN V. NEBRASKA, 313
U.S. 236; LINCOLN UNION V. NORTHWESTERN CO., 335 U.S. 525; WILLIAMSON
V. LEE OPTICAL CO., 348 U.S. 483; GIBONEY V. EMPIRE STORAGE CO., 336
U.S. 490.   WE DO NOT SIT AS A SUPER-LEGISLATURE TO DETERMINE THE
WISDOM, NEED, AND PROPRIETY OF LAWS THAT TOUCH ECONOMIC PROBLEMS,
BUSINESS AFFAIRS OR SOCIAL CONDITIONS.  THIS LAW, HOWEVER, OPERATES
DIRECTLY ON AN INTIMATE RELATION OF HUSBAND AND WIFE AND THEIR
PHYSICIAN'S ROLE IN ONE ASPECT OF THAT RELATION. 

THE ASSOCIATION OF PEOPLE IS NOT MENTIONED IN THE CONSTITUTION NOR IN
THE BILL OF RIGHTS.  THE RIGHT TO EDUCATE A CHILD IN A SCHOOL OF THE
PARENTS' CHOICE - WHETHER PUBLIC OR PRIVATE OR PAROCHIAL - IS ALSO NOT
MENTIONED.  NOR IS THE RIGHT TO STUDY ANY PARTICULAR SUBJECT OR ANY
FOREIGN LANGUAGE.  YET THE FIRST AMENDMENT HAS BEEN CONSTRUED TO
INCLUDE CERTAIN OF THOSE RIGHTS. 

BY PIERCE V. SOCIETY OF SISTERS, SUPRA, THE RIGHT TO EDUCATE ONE'S
CHILDREN AS ONE CHOOSES IS MADE APPLICABLE TO THE STATES BY THE FORCE
OF THE FIRST AND FOURTEENTH AMENDMENTS.  BY MEYER V. NEBRASKA, SUPRA,
THE SAME DIGNITY IS GIVEN THE RIGHT TO STUDY THE GERMAN LANGUAGE IN A
PRIVATE SCHOOL.  IN OTHER WORDS, THE STATE MAY NOT, CONSISTENTLY WITH
THE SPIRIT OF THE FIRST AMENDMENT, CONTRACT THE SPECTRUM OF AVAILABLE
KNOWLEDGE.  THE RIGHT OF FREEDOM OF SPEECH AND PRESS INCLUDES NOT ONLY
THE RIGHT TO UTTER OR TO PRINT, BUT THE RIGHT TO DISTRIBUTE THE RIGHT
TO RECEIVE, THE RIGHT TO READ (MARTIN V. STRUTHERS, 319 U.S. 141, 143)
AND FREEDOM OF INQUIRY, FREEDOM OF THOUGHT, AND FREEDOM TO TEACH (SEE
WIEMAN V. UPDEGRAFF, 344 U.S. 183, 195) - INDEED THE FREEDOM OF THE
ENTIRE UNIVERSITY COMMUNITY.  SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234,
249-250, 261-263; BARENBLATT V. UNITED STATES, 360 U.S. 109, 112;
BAGGETT V. BULLITT, 377 U.S. 360, 369.  WITHOUT THOSE PERIPHERAL RIGHTS
THE SPECIFIC RIGHTS WOULD BE LESS SECURE.  AND SO WE REAFFIRM THE
PRINCIPLE OF THE PIERCE AND THE MEYER CASES. 

IN NAACP V. ALABAMA, 357 U.S. 449, 462, WE PROTECTED THE "FREEDOM TO
ASSOCIATE AND PRIVACY IN ONE'S ASSOCIATIONS," NOTING THAT FREEDOM OF
ASSOCIATION WAS A PERIPHERAL FIRST AMENDMENT RIGHT.  DISCLOSURE OF
MEMBERSHIP LISTS OF A CONSTITUTIONALLY VALID ASSOCIATION, WE HELD, WAS
INVALID "AS ENTAILING THE LIKELIHOOD OF A SUBSTANTIAL RESTRAINT UPON
THE EXERCISE BY PETITIONER'S MEMBERS OF THEIR RIGHT TO FREEDOM OF
ASSOCIATION."  IBID.  IN OTHER WORDS, THE FIRST AMENDMENT HAS A
PENUMBRA WHERE PRIVACY IS PROTECTED FROM GOVERNMENTAL INTRUSION.  IN
LIKE CONTEXT, WE HAVE PROTECTED FORMS OF "ASSOCIATION" THAT ARE NOT
POLITICAL IN THE CUSTOMARY SENSE BUT PERTAIN TO THE SOCIAL, LEGAL, AND
ECONOMIC BENEFIT OF THE MEMBERS.  NAACP V. BUTTON, 371 U.S. 415, 430
431.  IN SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, WE HELD IT
NOT PERMISSIBLE TO BAR A LAWYER FROM PRACTICE, BECAUSE HE HAD ONCE BEEN
A MEMBER OF THE COMMUNIST PARTY.  THE MAN'S "ASSOCIATION WITH THAT
PARTY" WAS NOT SHOWN TO BE "ANYTHING MORE THAN A POLITICAL FAITH IN A
POLITICAL PARTY" (ID., AT 244) AND WAS NOT ACTION OF A KIND PROVING BAD
MORAL CHARACTER.  ID., AT 245-246. 

THOSE CASES INVOLVED MORE THAN THE "RIGHT OF ASSEMBLY" - A RIGHT THAT
EXTENDS TO ALL IRRESPECTIVE OF THEIR RACE OR IDEOLOGY.  DEJONGE V.
OREGON, 299 U.S. 353.  THE RIGHT OF "ASSOCIATION," LIKE THE RIGHT OF
BELIEF (BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624), IS MORE THAN THE
RIGHT TO ATTEND A MEETING; IT INCLUDES THE RIGHT TO EXPRESS ONE'S
ATTITUDES OR PHILOSOPHIES BY MEMBERSHIP IN A GROUP OR BY AFFILIATION
WITH IT OR BY OTHER LAWFUL MEANS.  ASSOCIATION IN THAT CONTEXT IS A
FORM OF EXPRESSION OF OPINION; AND WHILE IT IS NOT EXPRESSLY INCLUDED
IN THE FIRST AMENDMENT ITS EXISTENCE IS NECESSARY IN MAKING THE EXPRESS
GUARANTEES FULLY MEANINGFUL. 

THE FOREGOING CASES SUGGEST THAT SPECIFIC GUARANTEES IN THE BILL OF
RIGHTS HAVE PENUMBRAS, FORMED BY EMANATIONS FROM THOSE GUARANTEES THAT
HELP GIVE THEM LIFE AND SUBSTANCE.  SEE POE V. ULLMAN, 367 U.S. 497,
516-522 (DISSENTING OPINION).  VARIOUS GUARANTEES CREATE ZONES OF
PRIVACY.  THE RIGHT OF ASSOCIATION CONTAINED IN THE PENUMBRA OF THE
FIRST AMENDMENT IS ONE, AS WE HAVE SEEN.  THE THIRD AMENDMENT IN ITS
PROHIBITION AGAINST THE QUARTERING OF SOLDIERS "IN ANY HOUSE" IN TIME
OF PEACE WITHOUT THE CONSENT OF THE OWNER IS ANOTHER FACET OF THAT
PRIVACY.  THE FOURTH AMENDMENT EXPLICITLY AFFIRMS THE "RIGHT OF THE
PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS,
AGAINST UNREASONABLE SEARCHES AND SEIZURES."  THE FIFTH AMENDMENT IN
ITS SELF-INCRIMINATION CLAUSE ENABLES THE CITIZEN TO CREATE A ZONE OF
PRIVACY WHICH GOVERNMENT MAY NOT FORCE HIM TO SURRENDER TO HIS
DETRIMENT.  THE NINTH AMENDMENT PROVIDES:  "THE ENUMERATION OF THE
CONSTITUTION, OF CERTAIN RIGHTS, SHALL NOT BE CONSTRUED TO DENY OR
DISPARAGE OTHERS RETAINED BY THE PEOPLE." 

THE FOURTH AND FIFTH AMENDMENTS WERE DESCRIBED IN BOYD V. UNITED
STATES, 116 U.S. 616, 630, AS PROTECTION AGAINST ALL GOVERNMENTAL
INVASIONS "OF THE SANCTITY OF A MAN'S HOME AND THE PRIVACIES OF LIFE."*
WE RECENTLY REFERRED IN MAPP V. OHIO, 367 U.S. 643, 656, TO THE FOURTH
AMENDMENT AS CREATING A "RIGHT TO PRIVACY, NO LESS IMPORTANT THAN ANY
OTHER RIGHT CAREFULLY AND PARTICULARLY RESERVED TO THE PEOPLE."  SEE
BEANEY, THE CONSTITUTIONAL RIGHT TO PRIVACY, 1962 SUP. CT. REV. 212;
GRISWOLD, THE RIGHT TO BE LET ALONE, 55 NW. U.L.  REV. 216 (1960). 

*THE COURT SAID IN FULL ABOUT THIS RIGHT OF PRIVACY: 

"THE PRINCIPLES LAID DOWN IN THIS OPINION BY LORD CAMDEN IN ENTICK V.
CARRINGTON, 19 HOW.  ST. TR. 1029, AFFECT THE VERY ESSENCE OF
CONSTITUTIONAL LIBERTY AND SECURITY.  THEY REACH FARTHER THAN THE
CONCRETE FORM OF THE CASE THEN BEFORE THE COURT, WITH ITS ADVENTITIOUS
CIRCUMSTANCES; THEY APPLY TO ALL INVASIONS ON THE PART OF THE
GOVERNMENT AND ITS EMPLOYES OF THE SANCTITY OF A MAN'S HOME AND THE
PRIVACIES OF LIFE.  IT IS NOT THE BREAKING OF HIS DOORS, AND THE
RUMMAGING OF HIS DRAWERS, THAT CONSTITUTES THE ESSENCE OF THE OFFENCE;
BUT IT IS THE INVASION OF HIS INDEFEASIBLE RIGHT OF PERSONAL SECURITY,
PERSONAL LIBERTY AND PRIVATE PROPERTY, WHERE THAT RIGHT HAS NEVER BEEN
FORFEITED BY HIS CONVICTION OF SOME PUBLIC OFFENCE, - IT IS THE
INVASION OF THIS SACRED RIGHT WHICH UNDERLIES AND CONSTITUTES THE
ESSENCE OF LORD CAMDEN'S JUDGMENT.  BREAKING INTO A HOUSE AND OPENING
BOXES AND DRAWERS ARE CIRCUMSTANCES OF AGGRAVATION; BUT ANY FORCIBLE
AND COMPULSORY EXTORTION OF A MAN'S OWN TESTIMONY OR OF HIS PRIVATE
PAPERS TO BE USED AS EVIDENCE TO CONVICT HIM OF CRIME OR TO FORFEIT HIS
GOODS, IS WITHIN THE CONDEMNATION OF THAT JUDGMENT.  IN THIS REGARD THE
FOURTH AND FIFTH AMENDMENTS RUN ALMOST INTO EACH OTHER.  116 U.S., AT
630. 

WE HAVE HAD MANY CONTROVERSIES OVER THESE PENUMBRAL RIGHTS OF
"PRIVACY AND REPOSE."  SEE, E.G., BREARD V. ALEXANDRIA, 341 U.S. 622,
626, 644; PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451; MONROE V.
PAPE, 365 U.S. 167; LANZA V. NEW YORK, 370 U.S. 139; FRANK V. MARYLAND,
359 U.S. 360; SKINNER V. OKLAHOMA, 316 U.S. 535, 541.  THESE CASES BEAR
WITNESS THAT THE RIGHT OF PRIVACY WHICH PRESSES FOR RECOGNITION HERE IS
A LEGITIMATE ONE. 

THE PRESENT CASE, THEN, CONCERNS A RELATIONSHIP LYING WITHIN THE ZONE
OF PRIVACY CREATED BY SEVERAL FUNDAMENTAL CONSTITUTIONAL GUARANTEES. 
AND IT CONCERNS A LAW WHICH, IN FORBIDDING THE USE OF CONTRACEPTIVES
RATHER THAN REGULATING THEIR MANUFACTURE OR SALE, SEEKS TO ACHIEVE ITS
GOALS BY MEANS HAVING A MAXIMUM DESTRUCTIVE IMPACT UPON THAT
RELATIONSHIP.  SUCH A LAW CANNOT STAND IN LIGHT OF THE FAMILIAR
PRINCIPLE, SO OFTEN APPLIED BY THIS COURT, THAT A "GOVERNMENTAL PURPOSE
TO CONTROL OR PREVENT ACTIVITIES CONSTITUTIONALLY SUBJECT TO STATE
REGULATION MAY NOT BE ACHIEVED BY MEANS WHICH SWEEP UNNECESSARILY
BROADLY AND THEREBY INVADE THE AREA OF PROTECTED FREEDOMS."  NAACP V.
ALABAMA, 377 U.S. 288, 307.  WOULD WE ALLOW THE POLICE TO SEARCH THE
SACRED PRECINCTS OF MARITAL BEDROOMS FOR TELLTALE SIGNS OF THE USE OF
CONTRACEPTIVES?  THE VERY IDEA IS REPULSIVE TO THE NOTIONS OF PRIVACY
SURROUNDING THE MARRIAGE RELATIONSHIP. 

WE DEAL WITH A RIGHT OF PRIVACY OLDER THAN THE BILL OF RIGHTS - OLDER
THAN OUR POLITICAL PARTIES, OLDER THAN OUR SCHOOL SYSTEM.  MARRIAGE IS
A COMING TOGETHER FOR BETTER OR FOR WORSE, HOPEFULLY ENDURING, AND
INTIMATE TO THE DEGREE OF BEING SACRED.  IT IS AN ASSOCIATION THAT
PROMOTES A WAY OF LIFE, NOT CAUSES; A HARMONY IN LIVING, NOT POLITICAL
FAITHS; A BILATERAL LOYALTY, NOT COMMERCIAL OR SOCIAL PROJECTS.  YET IT
IS AN ASSOCIATION FOR AS NOBLE A PURPOSE AS ANY INVOLVED IN OUR PRIOR
DECISIONS.  REVERSED. 

MR. JUSTICE GOLDBERG, WHOM THE CHIEF JUSTICE AND MR. JUSTICE BRENNAN
JOIN, CONCURRING. 

I AGREE WITH THE COURT THAT CONNECTICUT'S BIRTH-CONTROL LAW
UNCONSTITUTIONALLY INTRUDES UPON THE RIGHT OF MARITAL PRIVACY, AND I
JOIN IN ITS OPINION AND JUDGMENT.  ALTHOUGH I HAVE NOT ACCEPTED THE
VIEW THAT "DUE PROCESS" AS USED IN THE FOURTEENTH AMENDMENT
INCORPORATES ALL OF THE FIRST EIGHT AMENDMENTS (SEE MY CONCURRING
OPINION IN POINTER V. TEXAS, 380 U.S. 400, 410, AND THE DISSENTING
OPINION OF MR. JUSTICE BRENNAN IN COHEN V. HURLEY, 366 U.S. 117, 154),
I DO AGREE THAT THE CONCEPT OF LIBERTY PROTECTS THOSE PERSONAL RIGHTS
THAT ARE FUNDAMENTAL, AND IS NOT CONFINED TO THE SPECIFIC TERMS OF THE
BILL OF RIGHTS.  MY CONCLUSION THAT THE CONCEPT OF LIBERTY IS NOT SO
RESTRICTED AND THAT IT EMBRACES THE RIGHT OF MARITAL PRIVACY THOUGH
THAT RIGHT IS NOT MENTIONED EXPLICITLY IN THE CONSTITUTION (FN1) IS
SUPPORTED BOTH BY NUMEROUS DECISIONS OF THIS COURT, REFERRED TO IN THE
COURT'S OPINION, AND BY THE LANGUAGE AND HISTORY OF THE NINTH
AMENDMENT.  IN REACHING THE CONCLUSION THAT THE RIGHT OF MARITAL
PRIVACY IS PROTECTED, AS BEING WITHIN THE PROTECTED PENUMBRA OF
SPECIFIC GUARANTEES OF THE BILL OF RIGHTS, THE COURT REFERS TO THE
NINTH AMENDMENT, ANTE, AT 484.  I ADD THESE WORDS TO EMPHASIZE THE
RELEVANCE OF THAT AMENDMENT TO THE COURT'S HOLDING.    THE COURT STATED
MANY YEARS AGO THAT THE DUE PROCESS CLAUSE PROTECTS THOSE LIBERTIES
THAT ARE "SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS
TO BE RANKED AS FUNDAMENTAL."  SNYDER V. MASSACHUSETTS, 291 U.S. 97,
105.  IN GITLOW V. NEW YORK, 268 U.S. 652, 666, THE COURT SAID: 

"FOR PRESENT PURPOSES WE MAY AND DO ASSUME THAT FREEDOM OF SPEECH AND
OF THE PRESS - WHICH ARE PROTECTED BY THE FIRST AMENDMENT FROM
ABRIDGMENT BY CONGRESS - ARE AMONG THE FUNDAMENTAL PERSONAL RIGHTS AND
'LIBERTIES' PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT FROM IMPAIRMENT BY THE STATES." 

AND, IN MEYER V. NEBRASKA, 262 U.S. 390, 399, THE COURT, REFERRING TO
THE FOURTEENTH AMENDMENT, STATED: 

"WHILE THIS COURT HAS NOT ATTEMPTED TO DEFINE WITH EXACTNESS THE
LIBERTY THUS GUARANTEED, THE TERM HAS RECEIVED MUCH CONSIDERATION AND
SOME OF THE INCLUDED THINGS HAVE BEEN DEFINITELY STATED.  WITHOUT
DOUBT, IT DENOTES NOT MERELY FREEDOM FROM BODILY RESTRAINT BUT ALSO FOR
EXAMPLE, THE RIGHT ...  TO MARRY, ESTABLISH A HOME AND BRING UP
CHILDREN  ...  ." 

THIS COURT, IN A SERIES OF DECISIONS, HAS HELD THAT THE FOURTEENTH
AMENDMENT ABSORBS AND APPLIES TO THE STATES THOSE SPECIFICS OF THE
FIRST EIGHT AMENDMENTS WHICH EXPRESS FUNDAMENTAL PERSONAL RIGHTS. 
(FN2)  THE LANGUAGE AND HISTORY OF THE NINTH AMENDMENT REVEAL THAT THE
FRAMERS OF THE CONSTITUTION BELIEVED THAT THERE ARE ADDITIONAL
FUNDAMENTAL RIGHTS, PROTECTED FROM GOVERNMENTAL INFRINGEMENT, WHICH
EXIST ALONGSIDE THOSE FUNDAMENTAL RIGHTS SPECIFICALLY MENTIONED IN THE
FIRST EIGHT CONSTITUTIONAL AMENDMENTS. 

THE NINTH AMENDMENT READS, "THE ENUMERATION IN THE CONSTITUTION, OF
CERTAIN RIGHTS, SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS
RETAINED BY THE PEOPLE."  THE AMENDMENT IS ALMOST ENTIRELY THE WORK OF
JAMES MADISON.  IT WAS INTRODUCED IN CONGRESS BY HIM AND PASSED THE
HOUSE AND SENATE WITH LITTLE OR NO DEBATE AND VIRTUALLY NO CHANGE IN
LANGUAGE.  IT WAS PROFFERED TO QUIET EXPRESSED FEARS THAT A BILL OF
SPECIFICALLY ENUMERATED RIGHTS (FN3) COULD NOT BE SUFFICIENTLY BROAD TO
COVER ALL ESSENTIAL RIGHTS AND THAT THE SPECIFIC MENTION OF CERTAIN
RIGHTS WOULD BE INTERPRETED AS A DENIAL THAT OTHERS WERE PROTECTED. 
(FN4) 

IN PRESENTING THE PROPOSED AMENDMENT, MADISON SAID: 

"IT HAS BEEN OBJECTED ALSO AGAINST A BILL OF RIGHTS, THAT, BY
ENUMERATING PARTICULAR EXCEPTIONS TO THE GRANT OF POWER, IT WOULD
DISPARAGE THOSE RIGHTS WHICH WERE NOT PLACED IN THAT ENUMERATION; AND
IT MIGHT FOLLOW BY IMPLICATION, THAT THOSE RIGHTS WHICH WERE NOT
SINGLED OUT, WERE INTENDED TO BE ASSIGNED INTO THE HANDS OF THE GENERAL
GOVERNMENT, AND WERE CONSEQUENTLY INSECURE.  THIS IS ONE OF THE MOST
PLAUSIBLE ARGUMENTS I HAVE EVER HEARD URGED AGAINST THE ADMISSION OF A
BILL OF RIGHTS INTO THIS SYSTEM; BUT, I CONCEIVE, THAT IT MAY BE
GUARDED AGAINST.  I HAVE ATTEMPTED IT, AS GENTLEMEN MAY SEE BY TURNING
TO THE LAST CLAUSE OF THE FOURTH RESOLUTION (THE NINTH AMENDMENT)."  I
ANNALS OF CONGRESS 439 (GALES AND SEATON ED. 1834). 

MR. JUSTICE STORY WROTE TO THIS ARGUMENT AGAINST A BILL OF RIGHTS AND
THE MEANING OF THE NINTH AMENDMENT: 

"IN REGARD TO  ...  A SUGGESTION, THAT THE AFFIRMANCE OF CERTAIN
RIGHTS MIGHT DISPARAGE OTHERS, OR MIGHT LEAD TO ARGUMENTATIVE
IMPLICATIONS IN FAVOR OF OTHER POWERS, IT MIGHT BE SUFFICIENT TO SAY
THAT SUCH A COURSE OF REASONING COULD NEVER BE SUSTAINED UPON ANY SOLID
BASIS  ...  .  BUT A CONCLUSIVE ANSWER IS, THAT SUCH AN ATTEMPT MAY BE
INTERDICTED (AS IT HAS BEEN) BY A POSITIVE DECLARATION IN SUCH A BILL
OF RIGHTS THAT THE ENUMERATION OF CERTAIN RIGHTS SHALL NOT BE CONSTRUED
TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE."  II STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 626-627 (5TH ED.
1891). 

HE FURTHER STATED, REFERRING TO THE NINTH AMENDMENT: 

"THIS CLAUSE WAS MANIFESTLY INTRODUCED TO PREVENT ANY PERVERSE OR
INGENIOUS MISAPPLICATION OF THE WELL-KNOWN MAXIM, THAT AN AFFIRMATION
IN PARTICULAR CASES IMPLIES A NEGATION IN ALL OTHERS; AND, E CONVERSO,
THAT A NEGATION IN PARTICULAR CASES IMPLIES AN AFFIRMATION IN ALL
OTHERS."  ID., AT 651. 

THESE STATEMENTS OF MADISON AND STORY MAKE CLEAR THAT THE FRAMERS DID
NOT INTEND THAT THE FIRST EIGHT AMENDMENTS BE CONSTRUED TO EXHAUST THE
BASIC AND FUNDAMENTAL RIGHTS WHICH THE CONSTITUTION GUARANTEED TO THE
PEOPLE.  (FN5) 

WHILE THIS COURT HAS HAD LITTLE OCCASION TO INTERPRET THE NINTH
AMENDMENT, (FN6) IT CANNOT BE PRESUMED THAT ANY CLAUSE IN THE
CONSTITUTION IS INTENDED TO BE WITHOUT EFFECT."  MARBURY V. MADISON, 1
CRANCH, 137, 174.  IN INTERPRETING THE CONSTITUTION, "REAL EFFECT
SHOULD BE GIVEN TO ALL THE WORDS IT USES."  MYERS V. UNITED STATES, 272
U.S. 52.  151.  THE NINTH AMENDMENT TO THE CONSTITUTION MAY BE REGARDED
BY SOME AS A RECENT DISCOVERY AND MAY BE FORGOTTEN BY OTHERS, BUT SINCE
1791 IT HAS BEEN A BASIC PART OF THE CONSTITUTION WHICH WE ARE SWORN TO
UPHOLD.  TO HOLD THAT A RIGHT SO BASIC AND FUNDAMENTAL AND SO DEEP
ROOTED IN OUR SOCIETY AS THE RIGHT OF PRIVACY IN MARRIAGE MAY BE
INFRINGED BECAUSE THAT RIGHT IS NOT GUARANTEED IN SO MANY WORDS BY THE
FIRST EIGHT AMENDMENTS TO THE CONSTITUTION IS TO IGNORE THE NINTH
AMENDMENT AND TO GIVE IT NO EFFECT WHATSOEVER.  MOREOVER, A JUDICIAL
CONSTRUCTION THAT THIS FUNDAMENTAL RIGHT IS NOT PROTECTED BY THE
CONSTITUTION BECAUSE IT IS NOT MENTIONED IN EXPLICIT TERMS BY ONE OF
THE FIRST EIGHT AMENDMENTS OR ELSEWHERE IN THE CONSTITUTION WOULD
VIOLATE THE NINTH AMENDMENT, WHICH SPECIFICALLY STATES THAT "THE
ENUMERATION IN THE CONSTITUTION, OF CERTAIN RIGHTS, SHALL NOT BE
CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE." 

A DISSENTING OPINION SUGGESTS THAT MY INTERPRETATION OF THE NINTH
AMENDMENT SOMEHOW "BROADENS THE POWERS OF THIS COURT."  POST, AT 520. 
WITH ALL DUE RESPECT, I BELIEVE THAT IT MISSES THE IMPORT OF WHAT I AM
SAYING.  I DO NOT TAKE THE POSITION OF MY BROTHER BLACK IN HIS DISSENT
IN ADAMSON V. CLAIFORNIA, 332 U.S. 46, 68, THAT THE ENTIRE BILL OF
RIGHTS IS INCORPORATED IN THE FOURTEENTH AMENDMENT, AND I DO NOT MEAN
TO IMPLY THAT THE NINTH AMENDMENT IS APPLIED AGAINST THE STATES BY THE
FOURTEENTH.  NOR DO I MEAN TO STATE THAT THE NINTH AMENDMENT
CONSTITUTES AN INDEPENDENT SOURCE OF RIGHTS PROTECTED FROM INFRINGEMENT
BY EITHER STATE OR THE FEDERAL GOVERNMENT.  RATHER, THE NINTH AMENDMENT
SHOWS A BELIEF OF THE CONSTITUTION'S AUTHORS THAT FUNDAMENTAL RIGHTS
EXIST THAT ARE NOT EXPRESSLY ENUMERATED IN THE FIRST EIGHT AMENDMENTS
AND AN EXTENT THAT THE LIST OF RIGHTS INCLUDED THERE NOT BE DEEMED
EXHAUSTIVE.  AS ANY STUDENT OF THIS COURT'S OPINIONS KNOWS, THIS COURT
HAS HELD, OFTEN UNANIMOUSLY, THAT THE FIFTH AND FOURTEENTH AMENDMENTS
PROTECT CERTAIN FUNDAMENTAL PERSONAL LIBERTIES FROM ABRIDGMENT BY THE
FEDERAL GOVERNMENT OR THE STATES.  SEE, E.G., BOLLING V. SHARPE, 347
U.S. 497; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500; KENT V. DULLES,
357 U.S. 116; CANTWELL V. CONNECTICUT, 310 U.S. 296; NAACP V. ALABAMA,
357 U.S. 449; GIDEON V. WAINWRIGHT, 372 U.S. 335; NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254.  THE NINTH AMENDMENT SIMPLY SHOWS THE INTENT OF
THE CONSTITUTION'S AUTHORS THAT OTHER FUNDAMENTAL PERSONAL RIGHTS
SHOULD NOT BE DENIED SUCH PROTECTION OR DISPARAGED IN ANY OTHER WAY
SIMPLY BECAUSE THEY ARE NOT SPECIFICALLY LISTED IN THE FIRST EIGHT
CONSTITUTIONAL AMENDMENTS.  I DO NOT SEE HOW THIS BROADENS THE
AUTHORITY OF THE COURT; RATHER IT SERVES TO SUPPORT WHAT THIS COURT HAS
BEEN DOING IN PROTECTING FUNDAMENTAL RIGHTS. 

NOR AM I TURNING SOMERSAULTS WITH HISTORY IN ARGUING THAT THE NINTH
AMENDMENT IS RELEVANT IN A CASE DEALING WITH A STATE'S INFRINGEMENT OF
A FUNDAMENTAL RIGHT.  WHILE THE NINTH AMENDMENT - AND INDEED THE ENTIRE
BILL OF RIGHTS - ORIGINALLY CONCERNED RESTRICTIONS UPON FEDERAL POWER,
THE SUBSEQUENTLY ENACTED FOURTEENTH AMENDMENT PROHIBITS THE STATES AS
WELL FROM ABRIDGING FUNDAMENTAL PERSONAL LIBERTIES.  AND, THE NINTH
AMENDMENT, IN INDICATING THAT NOT ALL SUCH LIBERTIES ARE SPECIFICALLY
MENTIONED IN THE FIRST EIGHT AMENDMENTS, IS SURELY RELEVANT IN SHOWING
THE EXISTENCE OF OTHER FUNDAMENTAL PERSONAL RIGHTS, NOW PROTECTED FROM
STATE, AS WELL AS FEDERAL, INFRINGEMENT.  IN SUM, THE NINTH AMENDMENT
SIMPLY LENDS STRONG SUPPORT TO THE VIEW THAT THE "LIBERTY" PROTECTED BY
THE FIFTH AND FOURTEENTH AMENDMENTS FROM INFRINGEMENT BY THE FEDERAL
GOVERNMENT OR THE STATES IS NOT RESTRICTED TO THE RIGHTS SPECIFICALLY
MENTIONED IN THE FIRST EIGHT AMENDMENTS.  CF. UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75, 94-95. 

IN DETERMINING WHICH RIGHTS ARE FUNDAMENTAL, JUDGES ARE NOT LEFT AT
LARGE TO DECIDE CASES IN LIGHT OF THEIR PERSONAL AND PRIVATE NOTIONS. 
RATHER, THEY MUST LOOK TO THE "TRADITIONS AND COLLECTIVE CONSCIENCE OF
OUR PEOPLE" TO DETERMINE WHETHER A PRINCIPLE IS "SO ROOTED THERE  ...
AS TO BE RANKED AS FUNDAMENTAL."  SNYDER V. MASSACHUSETTS, 291 U.S. 97,
105.  THE INQUIRY IS WHETHER A RIGHT INVOLVED "IS OF SUCH A CHARACTER
THAT IT CANNOT BE DENIED WITHOUT VIOLATING THOSE 'FUNDAMENTAL
PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR
CIVIL AND POLITICAL INSTITUTIONS'  ...  ."  POWELL V. ALABAMA, 287 U.S.
45, 67.  "LIBERTY" ALSO "GAINS CONTENT FROM THE EMANATIONS OF  ...
SPECIFIC CONSTITUTIONAL GUARANTEES" AND "FROM EXPERIENCE WITH THE
REQUIREMENTS OF A FREE SOCIETY."  POE V. ULLMAN, 367 U.S. 497, 517
(DISSENTING OPINION OF MR. JUSTICE DOUGLAS).  (FN7) 

I AGREE FULLY WITH THE COURT THAT, APPLYING THESE TESTS, THE RIGHT OF
PRIVACY IS A FUNDAMENTAL PERSONAL RIGHT, EMANATING "FROM THE TOTALITY
OF THE CONSTITUTIONAL SCHEME UNDER WHICH WE LIVE."  ID., AT 521.  MR.
JUSTICE BRANDEIS, DISSENTING IN OLMSTEAD V. UNITED STATES, 277 U.S.
438, 478, COMPREHENSIVELY SUMMARIZED THE PRINCIPLES UNDERLYING THE
CONSTITUTION'S GUARANTEES OF PRIVACY: 

"THE PROTECTION GUARANTEED BY THE FOURTH AND FIFTH AMENDMENTS IS MUCH
BROADER IN SCOPE.  THE MAKERS OF OUR CONSTITUTION UNDERTOOK TO SECURE
CONDITIONS FAVORABLE TO THE PURSUIT OF HAPPINESS.  THEY RECOGNIZED THE
SIGNIFICANCE OF MAN'S SPIRITUAL NATURE, OF HIS FEELINGS AND OF HIS
INTELLECT.  THEY KNEW THAT ONLY A PART OF THE PAIN, PLEASURE AND
SATISFACTION OF LIFE ARE TO BE FOUND IN MATERIAL THINGS.  THEY SOUGHT
TO PROTECT AMERICANS IN THEIR BELIEFS, THEIR THOUGHTS, THEIR EMOTIONS
AND THEIR SENSATIONS.  THEY CONFERRED, AS AGAINST THE GOVERNMENT, THE
RIGHT TO BE LET ALONE - THE MOST COMPREHENSIVE OF RIGHTS AND THE RIGHT
MOST VALUED BY CIVILIZED MEN." 

THE CONNECTICUT STATUTES HERE INVOLVED DEAL WITH A PARTICULARLY
IMPORTANT AND SENSITIVE AREA OF PRIVACY - THAT OF THE MARITAL RELATION
AND THE MARITAL HOME.  THIS COURT RECOGNIZED IN MEYER V. NEBRASKA,
SUPRA, THAT THE RIGHT "TO MARRY, ESTABLISH A HOME AND BRING UP
CHILDREN" WAS AN ESSENTIAL PART OF THE LIBERTY GUARANTEED BY THE
FOURTEENTH AMENDMENT.  262 U.S., AT 399.  IN PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510, THE COURT HELD UNCONSTITUTIONAL AN OREGON ACT
WHICH FORBADE PARENTS FROM SENDING THEIR CHILDREN TO PRIVATE SCHOOLS
BECAUSE SUCH AN ACT "UNREASONABLY INTERFERES WITH THE LIBERTY OF
PARENTS AND GUARDIANS TO DIRECT THE UPBRINGING AND EDUCATION OF
CHILDREN UNDER THEIR CONTROL."  268 U.S., AT 534-535.  AS THIS COURT
SAID IN PRINCE V. MASSACHUSETTS, 321 U.S. 158, AT 166, THE MEYER AND
PIERCE DECISIONS "HAVE RESPECTED THE PRIVATE REALM OF FAMILY LIFE WHICH
THE STATE CANNOT ENTER." 

I AGREE WITH MR. JUSTICE HARLAN'S STATEMENT IN HIS DISSENTING OPINION
IN POE V. ULLMAN, 367 U.S. 497, 551-552:  "CERTAINLY THE SAFEGUARDING
OF THE HOME DOES NOT FOLLOW MERELY FROM THE SANCTITY OF PROPERTY
RIGHTS.  THE HOME DERIVES ITS PRE-EMINENCE AS THE SEAT OF FAMILY LIFE. 
AND THE INTEGRITY OF THAT LIFE IS SOMETHING SO FUNDAMENTAL THAT IT HAS
BEEN FOUND TO DRAW TO ITS PROTECTION THE PRINCIPLES OF MORE THAN ONE
EXPLICITLY GRANTED CONSTITUTIONAL RIGHT  ...  .  OF THIS WHOLE 'PRIVATE
REALM OF FAMILY LIFE' IT IS DIFFICULT TO IMAGINE WHAT IS MORE PRIVATE
OR MORE INTIMATE THAN A HUSBAND AND WIFE'S MARITAL RELATIONS." 

THE ENTIRE FABRIC OF THE CONSTITUTION AND THE PURPOSES THAT CLEARLY
UNDERLIE ITS SPECIFIC GUARANTEES DEMONSTRATE THAT THE RIGHTS TO MARITAL
PRIVACY AND TO MARRY AND RAISE A FAMILY ARE OF SIMILAR ORDER AND
MAGNITUDE AS THE FUNDAMENTAL RIGHTS SPECIFICALLY PROTECTED. 

ALTHOUGH THE CONSTITUTION DOES NOT SPEAK IN SO MANY WORDS OF THE
RIGHT OF PRIVACY IN MARRIAGE, I CANNOT BELIEVE THAT IT OFFERS THESE
FUNDAMENTAL RIGHTS NO PROTECTION.  THE FACT THAT NO PARTICULAR
PROVISION OF THE CONSTITUTION EXPLICITLY FORBIDS THE STATE FROM
DISRUPTING THE TRADITIONAL RELATION OF THE FAMILY - A RELATION AS OLD
AND AS FUNDAMENTAL AS OUR ENTIRE CIVILIZATION - SURELY DOES NOT SHOW
THAT THE GOVERNMENT WAS MEANT TO HAVE THE POWER TO DO SO.  RATHER, AS
THE NINTH AMENDMENT EXPRESSLY RECOGNIZES, THERE ARE FUNDAMENTAL
PERSONAL RIGHTS SUCH AS THIS ONE, WHICH ARE PROTECTED FROM ABRIDGMENT
BY THE GOVERNMENT THOUGH NOT SPECIFICALLY MENTIONED IN THE
CONSTITUTION. 

MY BROTHER STEWART, WHILE CHARACTERIZING THE CONNECTICUT BIRTH
CONTROL LAW AS "AN UNCOMMONLY SILLY LAW," POST, AT 527, WOULD
NEVERTHELESS LET IT STAND ON THE GROUND THAT IT IS NOT FOR THE COURTS
TO " 'SUBSTITUTE THEIR SOCIAL AND ECONOMIC BELIEFS FOR THE JUDGMENT OF
LEGISLATIVE BODIES, WHO ARE ELECTED TO PASS LAWS.'"  POST, AT 528. 
ELSEWHERE, I HAVE STATED THAT "WHILE I QUITE AGREE WITH MR. JUSTICE
BRANDEIS THAT  ... "A    ...  STATE MAY  ...  SERVE AS A LABORATORY;
AND TRY NOVEL SOCIAL AND ECONOMIC EXPERIMENTS,' NEW STATE ICE CO. V.
LIEBMANN, 285 U.S. 262, 280, 311 (DISSENTING OPINION), I DO NOT BELIEVE
THAT THIS INCLUDES THE POWER TO EXPERIMENT WITH THE FUNDAMENTAL
LIBERTIES OF CITIZENS 

...  ."  (FN8)  THE VICE OF THE DISSENTERS' VIEWS IS THAT IT WOULD
PERMIT SUCH EXPERIMENTATION BY THE STATES IN THE AREA OF THE
FUNDAMENTAL PERSONAL RIGHTS OF ITS CITIZENS.  I CANNOT AGREE THAT THE
CONSTITUTION GRANTS SUCH POWER EITHER TO THE STATES OR TO THE FEDERAL
GOVERNMENT. 

THE LOGIC OF THE DISSENTS WOULD SANCTION FEDERAL OR STATE LEGISLATION
THAT SEEMS TO ME EVEN MORE PLAINLY UNCONSTITUTIONAL THAN THE STATUTE
BEFORE US.  SURELY THE GOVERNMENT, ABSENT A SHOWING OF A COMPELLING
SUBORDINATING STATE INTEREST, COULD NOT DECREE THAT ALL HUSBANDS AND
WIVES MUST BE STERILIZED AFTER TWO CHILDREN HAVE BEEN BORN TO THEM. 
YET BY THEIR REASONING SUCH AN INVASION OF MARITAL PRIVACY WOULD NOT BE
SUBJECT TO CONSTITUTIONAL CHALLENGE BECAUSE, WHILE IT MIGHT BE "SILLY,"
NO PROVISION OF THE CONSTITUTION SPECIFICALLY PREVENTS THE GOVERNMENT
FROM CURTAILING THE MARITAL RIGHT TO BEAR CHILDREN AND RAISE A FAMILY. 
WHILE IT MAY SHOCK SOME OF MY BRETHREN THAT THE COURT TODAY HOLDS THAT
THE CONSTITUTION PROTECTS THE RIGHT OF MARITAL PRIVACY, IN MY VIEW IT
IS FAR MORE SHOCKING TO BELIEVE THAT THE PERSONAL LIBERTY GUARANTEED BY
THE CONSTITUTION DOES NOT INCLUDE PROTECTION AGAINST SUCH TOTALITARIAN
LIMITATION OF FAMILY SIZE, WHICH IS AT COMPLETE VARIANCE WITH OUR
CONSTITUTIONAL CONCEPTS.  YET, IF UPON A SHOWING OF A SLENDER BASIS OF
RATIONALITY, A LAW OUTLAWING VOLUNTARY BIRTH CONTROL BY MARRIED PERSONS
IS VALID, THEN, BY THE SAME REASONING, A LAW REQUIRING COMPULSORY BIRTH
CONTROL ALSO WOULD SEEM TO BE VALID.  IN MY VIEW, HOWEVER, BOTH TYPES
OF LAW WOULD UNJUSTIFIABLY INTRUDE UPON RIGHTS OF MARITAL PRIVACY WHICH
ARE CONSTITUTIONALLY PROTECTED. 

IN A LONG SERIES OF CASES THIS COURT HAS HELD THAT WHERE FUNDAMENTAL
PERSONAL LIBERTIES ARE INVOLVED, THEY MAY NOT BE ABRIDGED BY THE STATES
SIMPLY ON A SHOWING THAT A REGULATORY STATUTE HAS SOME RATIONAL
RELATIONSHIP TO THE EFFECTUATION OF A PROPER STATE PURPOSE.  "WHERE
THERE IS A SIGNIFICANT ENCROACHMENT UPON PERSONAL LIBERTY, THE STATE
MAY PREVAIL ONLY UPON SHOWING A SUBORDINATING INTEREST WHICH IS
COMPELLING," BATES V. LITTLE ROCK, 361 U.S. 516, 524.  THE LAW MUST BE
SHOWN "NECESSARY, AND NOT MERELY RATIONALLY RELATED, TO THE
ACCOMPLISHMENT OF A PERMISSIBLE STATE POLICY."  MCLAUGHLIN V. FLORIDA,
379 U.S. 184, 196.  SEE SCHNEIDER V. IRVINGTON, 308 U.S. 147, 161. 

ALTHOUGH THE CONNECTICUT BIRTH-CONTROL LAW OBVIOUSLY ENCROACHES UPON
A FUNDAMENTAL PERSONAL LIBERTY, THE STATE DOES NOT SHOW THAT THE LAW
SERVES ANY "SUBORDINATING STATE INTEREST WHICH IS COMPELLING" OR THAT
IT IS "NECESSARY  ...  TO THE ACCOMPLISHMENT OF A PERMISSIBLE STATE
POLICY."  THE STATE, AT MOST, ARGUES THAT THERE IS SOME RATIONAL
RELATION BETWEEN THIS STATUTE AND WHAT IS ADMITTEDLY A LEGITIMATE
SUBJECT OF STATE CONCERN - THE DISCOURAGING OF EXTRA-MARITAL
RELATIONS.  IT SAYS THAT PREVENTING THE USE OF BIRTH-CONTROL DEVICES BY
MARRIED PERSONS HELPS PREVENT THE INDULGENCE BY SOME IN SUCH EXTRA
MARITAL RELATIONS.  THE RATIONALITY OF THIS JUSTIFICATION IS DUBIOUS,
PARTICULARLY IN LIGHT OF THE ADMITTED WIDESPREAD AVAILABILITY TO ALL
PERSONS IN THE STATE OF CONNECTICUT, UNMARRIED AS WELL AS MARRIED, OF
BIRTH-CONTROL DEVICES FOR THE PREVENTION OF DISEASE, AS DISTINGUISHED
FROM THE PREVENTION OF CONCEPTION, SEE TILESTON V. ULLMAN, 129 CONN.
84, 26 A.2D 582.  BUT, IN ANY EVENT, IT IS CLEAR THAT THE STATE
INTEREST IN SAFEGUARDING MARITAL FIDELITY CAN BE SERVED BY A MORE
DISCRIMINATELY TAILORED STATUTE, WHICH DOES NOT, LIKE THE PRESENT ONE,
SWEEP UNNECESSARILY BROADLY, REACHING FAR BEYOND THE EVIL SOUGHT TO BE
DEALT WITH AND INTRUDING UPON THE PRIVACY OF ALL MARRIED COUPLES.  SEE
APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 514; NAACP V. ALABAMA,
377 U.S. 288, 307-308; MCLAUGHLIN V. FLORIDA, SUPRA, AT 196.  HERE, AS
ELSEWHERE, "PRECISION OF REGULATION MUST BE THE TOUCHSTONE IN AN AREA
SO CLOSELY TOUCHING OUR MOST PRECIOUS FREEDOMS."  NAACP V. BUTTON, 371
U.S. 415, 438.  THE STATE OF CONNECTICUT DOES HAVE STATUTES, THE
CONSTITUTIONALITY OF WHICH IS BEYOND DOUBT, WHICH PROHIBIT ADULTERY AND
FORNICATION.  SEE CONN. GEN. STAT.  SECS. 53-218, 53-219 ET SEQ. THESE
STATUTES DEMONSTRATE THAT MEANS FOR ACHIEVING THE SAME BASIC PURPOSES
OF PROTECTING MARITAL FIDELITY ARE AVAILABLE TO CONNECTICUT WITHOUT THE
NEED TO "INVADE THE AREA OF PROTECTED FREEDOMS."  NAACP V. ALABAMA,
SUPRA, AT 307.  SEE MCLAUGHLIN V. FLORIDA, SUPRA, AT 196. 

FINALLY, IT SHOULD BE SAID OF THE COURT'S HOLDING TODAY THAT IT IN NO
WAY INTERFERES WITH A STATE'S PROPER REGULATION OF SEXUAL PROMISCUITY
OR MISCONDUCT.  AS MY BROTHER HARLAN SO WELL STATED IN HIS DISSENTING
OPINION IN POE V. ULLMAN, SUPRA, AT 553. 

"ADULTERY, HOMOSEXUALITY AND THE LIKE ARE SEXUAL INTIMACIES WHICH THE
STATE FORBIDS  ...  BUT THE INTIMACY OF HUSBAND AND WIFE IS NECESSARILY
AN ESSENTIAL AND ACCEPTED FEATURE OF THE INSTITUTION OF MARRIAGE, AN
INSTITUTION WHICH THE STATE NOT ONLY MUST ALLOW, BUT WHICH ALWAYS AND
IN EVERY AGE IT HAS FOSTERED AND PROTECTED.  IT IS ONE THING WHEN THE
STATE EXERTS ITS POWER EITHER TO FORBID EXTRA-MARITAL SEXUALITY  ...
OR TO SAY WHO MAY MARRY, BUT IT IS QUITE ANOTHER WHEN, HAVING
ACKNOWLEDGED A MARRIAGE AND THE INTIMACIES INHERENT IN IT, IT
UNDERTAKES TO REGULATE BY MEANS OF THE CRIMINAL LAW THE DETAILS OF THAT
INTIMACY." 

IN SUM, I BELIEVE THAT THE RIGHT OF PRIVACY IN THE MARITAL RELATION
IS FUNDAMENTAL AND BASIC - A PERSONAL RIGHT "RETAINED BY THE PEOPLE"
WITHIN THE MEANING OF THE NINTH AMENDMENT.  CONNECTICUT CANNOT
CONSTITUTIONALLY ABRIDGE THIS FUNDAMENTAL RIGHT, WHICH IS PROTECTED BY
THE FOURTEENTH AMENDMENT FROM INFRINGEMENT BY THE STATES.  I AGREE WITH
THE COURT THAT PETITIONERS' CONVICTIONS MUST THEREFORE BE REVERSED. 

FN1  MY BROTHER STEWART DISSENTS ON THE GROUND THAT HE "CAN FIND NO
...  GENERAL RIGHT OF PRIVACY IN THE BILL OF RIGHTS, IN ANY OTHER PART
OF THE CONSTITUTION, OR IN ANY CASE EVER BEFORE DECIDED BY THIS
COURT."  POST, AT 530.  HE WOULD REQUIRE A MORE EXPLICIT GUARANTEE THAN
THE ONE WHICH THE COURT DERIVES FROM SEVERAL CONSTITUTIONAL
AMENDMENTS.  THIS COURT HOWEVER, HAS NEVER HELD THAT THE BILL OF RIGHTS
OR THE FOURTEENTH AMENDMENT PROTECTS ONLY THOSE RIGHTS THAT THE
CONSTITUTION SPECIFICALLY MENTIONS BY NAME.  SEE, E.G., BOLLING V.
SHARPE, 347 U.S. 497; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500;
KENT V. DULLES, 357 U.S. 116; CARRINGTON V. RASH, 380 U.S. 89, 96;
SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232; NAACP V. ALABAMA, 360
U.S. 240; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510; MEYER V.
NEBRASKA, 262 U.S. 390.  TO THE CONTRARY, THIS COURT, FOR EXAMPLE, IN
BOLLING V. SHARPE, SUPRA, WHILE RECOGNIZING THAT THE FIFTH AMENDMENT
DOES NOT CONTAIN THE "EXPLICIT SAFEGUARD" OF AN EQUAL PROTECTION
CLAUSE, ID., AT 499, NEVERTHELESS DERIVED AN EQUAL PROTECTION PRINCIPLE
FROM THAT AMENDMENT'S DUE PROCESS CLAUSE.  AND IN SCHWARE V. BOARD OF
BAR EXAMINERS, SUPRA, THE COURT HELD THAT THE FOURTEENTH AMENDMENT
PROTECTS FROM ARBITRARY STATE ACTION THE RIGHT TO PURSUE AN OCCUPATION,
SUCH AS THE PRACTICE OF LAW. 

FN2  SEE, E.G., CHICAGO, B.&Q.R. CO. V. CHICAGO, 166 U.S. 226; GITLOW
V. NEW YORK, SUPRA; CANTWELL V. CONNECTICUT, 310 U.S. 296; WOLF V.
COLORADO, 338 U.S. 25; ROBINSON V. CALIFORNIA, 370 U.S. 660; GIDEON V.
WAINWRIGHT, 372 U.S. 335; MALLOY V. HOGAN, 378 U.S. 1; POINTER V.
TEXAS, SUPRA; GRIFFIN V. CALIFORNIA, 380 U.S. 609. 

FN3  MADISON HIMSELF HAD PREVIOUSLY POINTED OUT THE DANGERS OF
INACCURACY RESULTING FROM THE FACT THAT "NO LANGUAGE IS SO COPIOUS AS
TO SUPPLY WORDS AND PHRASES FOR EVERY COMPLEX IDEA."  THE FEDERALIST,
NO. 37 (COOKE ED. 1961), AT 236. 

FN4 ALEXANDER HAMILTON WAS OPPOSED TO A BILL OF RIGHTS ON THE GROUND
THAT IT WAS UNNECESSARY BECAUSE THE FEDERAL GOVERNMENT WAS A GOVERNMENT
OF DELEGATED POWERS AND IT WAS NOT GRANTED THE POWER TO INTRUDE UPON
FUNDAMENTAL PERSONAL RIGHTS.  THE FEDERALIST, NO. 84 (COOKE ED. 1961),
AT 578-579.  HE ALSO ARGUED: 

"I GO FURTHER, AND AFFIRM THAT BILLS OF RIGHTS, IN THE SENSE AND IN
THE EXTENT IN WHICH THEY ARE CONTENDED FOR, ARE NOT ONLY UNNECESSARY IN
THE PROPOSED CONSTITUTION, BUT WOULD EVEN BE DANGEROUS.  THEY WOULD
CONTAIN VARIOUS EXCEPTIONS TO POWERS WHICH ARE NOT GRANTED; AND ON THIS
VERY ACCOUNT, WOULD AFFORD A COLOURABLE PRETEXT TO CLAIM MORE THAN WERE
GRANTED.  FOR WHY DECLARE THAT THINGS SHALL NOT BE DONE WHICH THERE IS
NO POWER TO DO? WHY FOR INSTANCE, SHOULD IT BE SAID, THAT THE LIBERTY
OF THE PRESS SHALL NOT BE RESTRAINED, WHEN NO POWER IS GIVEN BY WHICH
RESTRICTIONS MAY BE IMPOSED?  I WILL NOT CONTEND THAT SUCH A PROVISION
WOULD CONFER A REGULATING POWER; BUT IT IS EVIDENT THAT IT WOULD
FURNISH, TO MEN DISPOSED TO USURP, A PLAUSIBLE PRETENCE FOR CLAIMING
THAT POWER."  ID., AT 579. 

THE NINTH AMENDMENT AND THE TENTH AMENDMENT, WHICH PROVIDES, "THE
POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION, NOR
PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES
RESPECTIVELY, OR TO THE PEOPLE," WERE APPARENTLY ALSO DESIGNED IN PART
TO MEET THE ABOVE-QUOTED ARGUMENT OF HAMILTON. 

FN5  THE TENTH AMENDMENT SIMILARLY MADE CLEAR THAT THE STATES AND THE
PEOPLE RETAINED ALL THOSE POWERS NOT EXPRESSLY DELEGATED TO THE FEDERAL
GOVERNMENT. 

FN6  THIS AMENDMENT HAS BEEN REFERRED TO AS "THE FORGOTTEN NINTH
AMENDMENT," IN A BOOK WITH THAT TITLE BY BENNETT B. PATTERSON (1955). 
OTHER COMMENTARY ON THE FIFTH AMENDMENT INCLUDES REDLICH, ARE THERE
"CERTAIN RIGHTS  ...  RETAINED BY THE PEOPLE"?  37 N.Y.U.L.  REV. 787
(1962), AND KELSEY, THE NINTH AMENDMENT OF THE FEDERAL CONSTITUTION, 11
IND. L.J.  309 (1936).  AS FAR AS I AM AWARE, UNTIL TODAY THIS COURT
HAS REFERRED TO THE NINTH AMENDMENT ONLY IN UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75, 94-95; TENNESSEE ELECTRIC POWER CO. V. TVA, 306
U.S. 118, 143-144; AND ASHWANDER V. TVA, 297 U.S. 288, 330-331.  SEE
ALSO CALDER V. BULL, 3 DALL.  386, 388; LOAN ASSN. V. TOPEKA, 20 WALL. 
655, 662-663. 

IN UNITED PUBLIC WORKERS V. MITCHELL, SUPRA, AT 94-95, THE COURT
STATED:  "WE ACCEPT APPELLANTS' CONTENTION THAT THE NATURE OF POLITICAL
RIGHTS RESERVED TO THE PEOPLE BY THE NINTH AND TENTH AMENDMENTS IS
INVOLVED.  THE RIGHT CLAIMED AS INVIOLATE MAY BE STATED AS THE RIGHT OF
A CITIZEN TO ACT AS A PARTY OFFICIAL OR WORKER TO FURTHER HIS OWN
POLITICAL VIEWS.  THUS WE HAVE A MEASURE OF INTERFERENCE BY THE HATCH
ACT AND THE RULES WITH WHAT OTHERWISE WOULD BE THE FREEDOM OF THE CIVIL
SERVANT UNDER THE FIRST, NINTH AND TENTH AMENDMENTS.  AND, IF WE LOOK
UPON DUE PROCESS AS A GUARANTEE OF FREEDOM IN THOSE FIELDS, THERE IS A
CORRESPONDING IMPAIRMENT OF THAT RIGHT UNDER THE FIFTH AMENDMENT." 

FN7  IN LIGHT OF THE TESTS ENUNCIATED IN THESE CASES IT CANNOT BE
SAID THAT A JUDGE'S RESPONSIBILITY TO DETERMINE WHETHER A RIGHT IS
BASIC AND FUNDAMENTAL IN THIS SENSE VESTS HIM WITH UNRESTRICTED
PERSONAL DISCRETION.  IN FACT, A HESITANCY TO ALLOW TOO BROAD A
DISCRETION WAS A SUBSTANTIAL REASON LEADING ME TO CONCLUDE IN POINTER
V. TEXAS, SUPRA, AT 413-414, THAT THOSE RIGHTS ABSORBED BY THE
FOURTEENTH AMENDMENT AND APPLIED TO THE STATES BECAUSE THEY ARE
FUNDAMENTAL APPLY WITH EQUAL FORCE AND TO THE SAME EXTENT AGAINST BOTH
FEDERAL AND STATE GOVERNMENTS.  IN POINTER I SAID THAT THE CONTRARY
VIEW WOULD REQUIRE WOULD REQUIRE "THIS COURT TO MAKE THE EXTREMELY
SUBJECTIVE AND EXCESSIVELY DISCRETIONARY DETERMINATION AS TO WHETHER A
PRACTICE, FORBIDDEN THE FEDERAL GOVERNMENT BY A FUNDAMENTAL
CONSTITUTIONAL GUARANTEE, IS, AS VIEWED IN THE FACTUAL CIRCUMSTANCES
SURROUNDING EACH INDIVIDUAL CASE, SUFFICIENTLY REPUGNANT TO THE NOTION
OF DUE PROCESS AS TO BE FORBIDDEN THE STATES."  ID., AT 413. 

FN8  POINTER V. TEXAS, SUPRA, AT 413.  SEE ALSO THE DISCUSSION OF MY
BROTHER DOUGLAS, POE V. ULLMAN, SUPRA, AT 517-518 (DISSENTING
OPINION). 

MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT. 

I FULLY AGREE WITH THE JUDGMENT OF REVERSAL, BUT FIND MYSELF UNABLE
TO JOIN THE COURT'S OPINION.  THE REASON IS THAT IT SEEMS TO ME TO
EVINCE AN APPROACH TO THIS CASE VERY MUCH LIKE THAT TAKEN BY MY
BROTHERS BLACK AND STEWART IN DISSENT, NAMELY:  THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT DOES NOT TOUCH THIS CONNECTICUT STATUTE
UNLESS THE ENACTMENT IS FOUND TO VIOLATE SOME RIGHT ASSURED BY THE
LETTER OR PENUMBRA OF THE BILL OF RIGHTS. 

IN OTHER WORDS, WHAT I FIND IMPLICIT IN THE COURT'S OPINION IS THAT
THE "INCORPORATION" DOCTRINE MAY BE USED TO RESTRICT THE REACH OF THE
FOURTEENTH AMENDMENT DUE PROCESS.  FOR ME THIS IS JUST AS UNACCEPTABLE
CONSTITUTIONAL DOCTRINE AS IS THE USE OF THE "INCORPORATION" APPROACH
TO IMPOSE UPON THE STATES ALL THE REQUIREMENTS OF THE BILL OF RIGHTS AS
FOUND IN THE PROVISIONS OF THE FIRST EIGHT AMENDMENTS AND IN THE
DECISIONS OF THIS COURT INTERPRETING THEM.  SEE, E.G., MY CONCURRING
OPINIONS IN POINTER V. TEXAS, 380 U.S. 400, 408, AND GRIFFIN V.
CALIFORNIA, 380 U.S. 609, 615, AND MY DISSENTING OPINION IN POE V.
ULLMAN, 367 U.S. 497, 522, AT PP. 539-545. 

IN MY VIEW, THE PROPER CONSTITUTIONAL INQUIRY IN THIS CASE IS WHETHER
THIS CONNECTICUT STATUTE INFRINGES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT BECAUSE THE ENACTMENT VIOLATES BASIC VALUES
"IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY,"  PALKO V. CONNECTICUT,
302 U.S. 319, 325.  FOR REASONS STATED AT LENGTH IN MY DISSENTING
OPINION IN POE V. ULLMAN, SUPRA, I BELIEVE THAT IT DOES.  WHILE THE
RELEVANT INQUIRY MAY BE AIDED BY RESORT TO ONE OR MORE OF THE
PROVISIONS OF THE BILL OF RIGHTS, IT IS NOT DEPENDENT ON THEM OR ANY OF
THEIR RADIATIONS.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
STANDS, IN MY OPINION, ON ITS OWN BOTTOM.    A FURTHER OBSERVATION
SEEMS IN ORDER RESPECTING THE JUSTIFICATION OF MY BROTHERS BLACK AND
STEWART FOR THEIR "INCORPORATION" APPROACH TO THIS CASE.  THEIR
APPROACH DOES NOT REST ON HISTORICAL REASONS, WHICH ARE OF COURSE
WHOLLY LACKING (SEE FAIRMAN, DOES THE FOURTEENTH AMENDMENT INCORPORATE
THE BILL OF RIGHTS?  THE ORIGINAL UNDERSTANDING, 2 STAN.  L. REV. 5
(1949)), BUT ON THE THESIS THAT BY LIMITING THE CONTENT OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE PROTECTION OF RIGHTS
WHICH CAN BE FOUND ELSEWHERE IN THE CONSTITUTION, IN THIS INSTANCE IN
THE BILL OF RIGHTS, JUDGES WILL THUS BE CONFINED TO "INTERPRETATION" OF
SPECIFIC CONSTITUTIONAL PROVISIONS, AND WILL THEREBY BE RESTRAINED FROM
INTRODUCING THEIR OWN NOTIONS OF CONSTITUTIONAL RIGHT AND WRONG INTO
THE "VAGUE CONTOURS OF THE DUE PROCESS CLAUSE."  ROCHIN V. CALIFORNIA,
342 U.S. 165, 170. 

WHILE I COULD NOT MORE HEARTILY AGREE THAT JUDICIAL "SELF RESTRAINT"
IS AN INDISPENSABLE INGREDIENT OF SOUND CONSTITUTIONAL ADJUDICATION, I
DO SUBMIT THAT THE FORMULA SUGGESTED FOR ACHIEVING IT IS MORE HOLLOW
THAN REAL.  "SPECIFIC" PROVISIONS OF THE CONSTITUTION, NO LESS THAN
"DUE PROCESS," LEND THEMSELVES AS READILY TO "PERSONAL" INTERPRETATIONS
BY JUDGES WHOSE CONSTITUTIONAL OUTLOOK IS SIMPLY TO KEEP THE
CONSTITUTION IN SUPPOSED "TUNE WITH THE TIMES" (POST, P. 522).  NEED
ONE GO FURTHER THAN TO RECALL LAST TERM'S REAPPORTIONMENT CASES,
WESBERRY V. SANDERS, 376 U.S. 1, AND REYNOLDS V. SIMS, 377 U.S. 533,
WHERE A MAJORITY OF THE COURT "INTERPRETED" "BY THE PEOPLE" (ART. I,
SEC. 2) AND "EQUAL PROTECTION" (AMDT. 14) TO COMMAND "ONE PERSON, ONE
VOTE," AN INTERPRETATION THAT WAS MADE IN THE FACE OF IRREFUTABLE AND
STILL UNANSWERED HISTORY TO THE CONTRARY?  SEE MY DISSENTING OPINIONS
IN THOSE CASES, 376 U.S., AT 20; 377 U.S., AT 589. 

JUDICIAL SELF-RESTRAINT WILL NOT, I SUGGEST, BE BROUGHT ABOUT IN THE
"DUE PROCESS" AREA BY THE HISTORICALLY UNFOUNDED INCORPORATION FORMULA
LONG ADVANCED BY MY BROTHER BLACK, AND NOW IN PART ESPOUSED BY MY
BROTHER STEWART.  IT WILL BE ACHIEVED IN THIS AREA, AS IN OTHER
CONSTITUTIONAL AREAS, ONLY BY CONTINUAL INSISTENCE UPON RESPECT FOR THE
TEACHINGS OF HISTORY, SOLID RECOGNITION OF THE BASIC VALUES THAT
UNDERLIE OUR SOCIETY, AND WISE APPRECIATION OF THE GREAT ROLES THAT THE
DOCTRINES OF FEDERALISM AND SEPARATION OF POWERS HAVE PLAYED IN
ESTABLISHING AND PRESERVING AMERICAN FREEDOMS.   SEE ADAMSON V.
CALIFORNIA, 332 U.S. 46, 59 (MR. JUSTICE FRANKFURTER, CONCURRING). 
ADHERENCE TO THESE PRINCIPLES WILL NOT, OF COURSE, OBVIATE ALL
CONSTITUTIONAL DIFFERENCES OF OPINION AMONG JUDGES, NOR SHOULD IT.
THEIR CONTINUED RECOGNITION WILL, HOWEVER, GO FARTHER TOWARD KEEPING
MOST JUDGES FROM ROAMING AT LARGE IN THE CONSTITUTIONAL FIELD THAN WILL
THE INTERPOLATION INTO THE CONSTITUTION OF AN ARTIFICIAL AND LARGELY
ILLUSORY RESTRICTION ON THE CONTENT OF THE DUE PROCESS CLAUSE.* 

*INDEED, MY BROTHER BLACK, IN ARGUING HIS THESIS, IS FORCED TO LAY
ASIDE A HOST OF CASES IN WHICH THE COURT HAS RECOGNIZED FUNDAMENTAL
RIGHTS IN THE FOURTEENTH AMENDMENT WITHOUT SPECIFIC RELIANCE UPON THE
BILL OF RIGHTS.  POST, P. 512, N. 4. 

MR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT. 

IN MY VIEW THIS CONNECTICUT LAW AS APPLIED TO MARRIED COUPLES
DEPRIVES THEM OF "LIBERTY" WITHOUT DUE PROCESS OF LAW, AS THAT CONCEPT
IS USED IN THE FOURTEENTH AMENDMENT.  I THEREFORE CONCUR IN THE
JUDGMENT OF THE COURT REVERSING THESE CONVICTIONS UNDER CONNECTICUT'S
AIDING AND ABETTING STATUTE. 

IT WOULD BE UNDULY REPETITIOUS, AND BELABORING THE OBVIOUS, TO
EXPOUND ON THE IMPACT OF THIS STATUTE ON THE LIBERTY GUARANTEED BY THE
FOURTEENTH AMENDMENT AGAINST ARBITRARY OR CAPRICIOUS DENIALS OR ON THE
NATURE OF THIS LIBERTY.  SUFFICE IT TO SAY THAT THIS IS NOT THE FIRST
TIME THIS COURT HAS HAD OCCASION TO ARTICULATE THAT THE LIBERTY
ENTITLED TO PROTECTION UNDER THE FOURTEENTH AMENDMENT INCLUDES THE
RIGHT "TO MARRY, ESTABLISH A HOME AND BRING UP CHILDREN," MEYER V.
NEBRASKA, 262 U.S. 390, 399, AND "THE LIBERTY  ...  TO DIRECT THE
UPBRINGING AND EDUCATION OF CHILDREN," PIERCE V. SOCIETY OF SISTERS,
268 U.S. 510, 534-535, AND THAT THESE ARE AMONG "THE BASIC CIVIL RIGHTS
OF MAN."  SKINNER V. OKLAHOMA, 316 U.S. 535, 541.  THESE DECISIONS
AFFIRM THAT THERE IS A "REALM OF FAMILY LIFE WHICH THE STATE CANNOT
ENTER" WITHOUT SUBSTANTIAL JUSTIFICATION.  PRINCE V. MASSACHUSETTS, 321
U.S. 158, 166.  SURELY THE RIGHT INVOKED IN THIS CASE, TO BE FREE OF
REGULATION OF THE INTIMACIES OF THE MARRIAGE RELATIONSHIP, "COMES TO
THIS COURT WITH A MOMENTUM FOR RESPECT LACKING WHEN APPEAL IS MADE TO
LIBERTIES WHICH DERIVE MERELY FROM SHIFTING ECONOMIC ARRANGEMENTS." 
KOVACS V. COOPER, 336 U.S. 77, 95 (OPINION OF FRANKFURTER, J.). 

THE CONNECTICUT ANTI-CONTRACEPTIVE STATUTE DEALS RATHER SUBSTANTIALLY
WITH THIS RELATIONSHIP.  FOR IT FORBIDS ALL MARRIED PERSONS THE RIGHT
TO USE BIRTH-CONTROL DEVICES, REGARDLESS OF WHETHER THEIR USE IS
DICTATED BY CONSIDERATIONS OF FAMILY PLANNING, TRUBEK V. ULLMAN, 147
CONN. 633, 165 A.2D 158, HEALTH, OR INDEED EVEN OF LIFE ITSELF.  BUXTON
V. ULLMAN, 147 CONN. 48, 156 A.2D 508.  THE ANTI-USE STATUTE, TOGETHER
WITH THE GENERAL AIDING AND ABETTING STATUTE, PROHIBITS DOCTORS FROM
AFFORDING ADVICE TO MARRIED PERSONS ON PROPER AND EFFECTIVE METHODS OF
BIRTH CONTROL.  TILESTON V. ULLMAN, 129 CONN. 84, 26 A.2D 582.  AND THE
CLEAR EFFECT OF THESE STATUTES, AS ENFORCED, IS TO DENY DISADVANTAGED
CITIZENS OF CONNECTICUT, THOSE WITHOUT EITHER ADEQUATE KNOWLEDGE OR
RESOURCES TO OBTAIN PRIVATE COUNSELING, ACCESS TO MEDICAL ASSISTANCE
AND UP-TO-DATE INFORMATION IN RESPECT TO PROPER METHODS OF BIRTH
CONTROL.  STATE V. NELSON, 126 CONN. 412, 11 A.2D 856; STATE V.
GRISWOLD, 151 CONN. 544, 200 A.2D 479.  IN MY VIEW, A STATUTE WITH
THESE EFFECTS BEARS A SUBSTANTIAL BURDEN OF JUSTIFICATION WHEN ATTACKED
UNDER THE FOURTEENTH AMENDMENT.  YICK WO V. HOPKINS, 118 U.S. 356;
SKINNER V. OKLAHOMA, 316 U.S. 535; SCHWARE V. BOARD OF BAR EXAMINERS,
353 U.S. 232; MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 192. 

AN EXAMINATION OF THE JUSTIFICATION OFFERED, HOWEVER, CANNOT BE
AVOIDED BY SAYING THAT THE CONNECTICUT ANTI-USE STATUTE INVADES A
PROTECTED AREA OF PRIVACY AND ASSOCIATION OR THAT IT DEMEANS THE
MARRIAGE RELATIONSHIP.  THE NATURE OF THE RIGHT INVADED IS PERTINENT,
TO BE SURE, FOR STATUTES REGULATING SENSITIVE AREAS OF LIBERTY DO,
UNDER THE CASES OF THIS COURT, REQUIRE "STRICT SCRUTINY," SKINNER V.
OKLAHOMA, 316 U.S. 535, 541, AND "MUST BE VIEWED IN THE LIGHT OF LESS
DRASTIC MEANS FOR ACHIEVING THE SAME BASIC PURPOSE."  SHELTON V.
TUCKER, 364 U.S. 479, 488.  "WHERE THERE IS A SIGNIFICANT ENCROACHMENT
UPON PERSONAL LIBERTY, THE STATE MAY PREVAIL ONLY UPON SHOWING A
SUBORDINATING INTEREST WHICH IS COMPELLING."  BATES V. LITTLE ROCK, 361
U.S. 516, 524.  SEE ALSO MCLAUGHLIN V. FLORIDA, 379 U.S. 184.  BUT SUCH
STATUTES, IF REASONABLY NECESSARY FOR THE EFFECTUATION OF A LEGITIMATE
AND SUBSTANTIAL STATE INTEREST, AND NOT ARBITRARY OR CAPRICIOUS IN
APPLICATION, ARE NOT INVALID UNDER THE DUE PROCESS CLAUSE.  ZEMEL V.
RUSK, 381 U.S. 1.* 

*DISSENTING OPINIONS ASSERT THAT THE LIBERTY GUARANTEED BY THE DUE
PROCESS CLAUSE IS LIMITED TO A GUARANTEE AGAINST UNDULY VAGUE STATUTES
AND AGAINST PROCEDURAL UNFAIRNESS AT TRIAL.  UNDER THIS VIEW THE COURT
IS WITHOUT AUTHORITY TO ASCERTAIN WHETHER A CHALLENGED STATUTE, OR ITS
APPLICATION, HAS A PERMISSIBLE PURPOSE AND WHETHER THE MANNER OF
REGULATION BEARS A RATIONAL OR JUSTIFYING RELATIONSHIP TO THIS
PURPOSE.  A LONG LINE OF CASES MAKES VERY CLEAR THAT THIS HAS NOT BEEN
THE VIEW OF THIS COURT.  DENT V. WEST VIRGINIA, 129 U.S. 114; JACOBSON
V. MASSACHUSETTS, 197 U.S. 11; DOUGLAS V. NOBLE, 261 U.S. 165; MEYER V.
NEBRASKA, 262 U.S. 390; PIERCE V.SOCIETY OF SISTERS, 268 U.S. 510;
SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232; APTHEKER V. SECRETARY
OF STATE, 378 U.S. 500; ZEMEL V. RUSK, 381 U.S. 1. 

THE TRADITIONAL DUE PROCESS TEST WAS WELL ARTICULATED AND APPLIED, IN
SCHWARE V. BOARD OF BAR EXAMINERS, SUPRA, A CASE WHICH PLACED NO
RELIANCE ON THE SPECIFIC GUARANTEES OF THE BILL OF RIGHTS. 

"A STATE CANNOT EXCLUDE A PERSON FROM THE PRACTICE OF LAW OR FROM ANY
OTHER OCCUPATION IN A MANNER OR FOR REASONS THAT CONTRAVENE THE DUE
PROCESS OR EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  DENT
V. WEST VIRGINIA, 129 U.S. 114.  CF. SLOCHOWER V. BOARD OF EDUCATION,
350 U.S. 551; WEIMAN V. UPDEGRAFF, 344 U.S. 183.  AND SEE EX PARTE
SECOMBE, 19 HOW.  9, 13.  A STATE CAN REQUIRE HIGH STANDARDS OF
QUALIFICATION, SUCH AS GOOD MORAL CHARACTER OR PROFICIENCY IN ITS LAW,
BEFORE IT ADMITS AN APPLICANT TO THE BAR, BUT ANY QUALIFICATION MUST
HAVE A RATIONAL CONNECTION WITH THE APPLICANT'S FITNESS OR CAPACITY TO
PRACTICE LAW.  DOUGLAS V. NOBLE, 261 U.S. 165; CUMMINGS V. MISSOURI, 4
WALL.  277, 319-320.  CF. NEBBIA V. NEW YORK, 291 U.S. 502.  OBVIOUSLY
AN APPLICANT COULD NOT BE EXCLUDED MERELY BECAUSE HE WAS A REPUBLICAN
OR A NEGRO OR A MEMBER OF A PARTICULAR CHURCH.  EVEN IN APPLYING
PERMISSIBLE STANDARDS, OFFICERS OF A STATE CANNOT EXCLUDE AN APPLICANT
WHEN THERE IS NO BASIS FOR THEIR FINDING THAT HE FAILS TO MEET THESE
STANDARDS, OR WHEN THEIR ACTION IS INVIDIOUSLY DISCRIMINATORY."  353
U.S., AT 238-239.  CF. MARTIN V. WALTON, 368 U.S. 25, 26 (DOUGLAS, J.,
DISSENTING). 

AS I READ THE OPINIONS OF THE CONNECTICUT COURTS AND THE ARGUMENT OF
CONNECTICUT IN THIS COURT, THE STATE CLAIMS BUT ONE JUSTIFICATION FOR
ITS ANTI-USE STATUTE.  CF. ALLIED STORES OF OHIO V. BOWERS, 358 U.S.
522, 530; MARTIN V. WALTON, 368 U.S. 25, 28 (DOUGLAS, J., DISSENTING). 
THERE IS NO SERIOUS CONTENTION THAT CONNECTICUT THINKS THE USE OF
ARTIFICIAL OR EXTERNAL METHODS OF CONTRACEPTION IMMORAL OR UNWISE IN
ITSELF, OR THAT THE ANTI-USE STATUTE IS FOUNDED UPON ANY POLICY OF
PROMOTING POPULATION EXPANSION.  RATHER, THE STATUTE IS SAID TO SERVE
THE STATE'S POLICY AGAINST ALL FORMS OF PROMISCUOUS OR ILLICIT SEXUAL
RELATIONSHIPS, BE THEY PREMARITAL OR EXTRAMARITAL, CONCEDEDLY A
PERMISSIBLE AND LEGITIMATE LEGISLATIVE GOAL. 

WITHOUT TAKING ISSUE WITH THE PREMISE THAT THE FEAR OF CONCEPTION
OPERATES AS A DETERRENT TO SUCH RELATIONSHIPS IN ADDITION TO THE
CRIMINAL PROSCRIPTIONS CONNECTICUT HAS AGAINST SUCH CONDUCT, I WHOLLY
FAIL TO SEE HOW THE BAN ON THE USE OF CONTRACEPTIVES BY MARRIED COUPLES
IN ANY WAY REINFORCES THE STATE'S BAN ON ILLICIT SEXUAL RELATIONSHIPS. 
SEE SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 239.  CONNECTICUT
DOES NOT BAR THE IMPORTATION OR POSSESSION OF CONTRACEPTIVE DEVICES;
THEY ARE NOT CONSIDERED CONTRABAND MATERIAL UNDER STATE LAW, STATE V.
CERTAIN CONTRACEPTIVE MATERIALS, 126 CONN. 428, 11 A.2D 863, AND THEIR
AVAILABILITY IN THAT STATE IS NOT SERIOUSLY DISPUTED.  THE ONLY WAY
CONNECTICUT SEEKS TO LIMIT OR CONTROL THE AVAILABILITY OF SUCH DEVICES
IS THROUGH ITS GENERAL AIDING AND ABETTING STATUTE WHOSE OPERATION IN
THIS CONTEXT HAS BEEN QUITE OBVIOUSLY INEFFECTIVE AND WHOSE MOST
SERIOUS USE HAS BEEN AGAINST BIRTH-CONTROL CLINICS RENDERING ADVICE TO
MARRIED, RATHER THAN UNMARRIED, PERSONS.  CF. YICK WO V. HOPKINS, 118
U.S. 356.  INDEED, AFTER OVER 80 YEARS OF THE STATE'S PROSCRIPTION OF
USE, THE LEGALITY OF THE SALE OF SUCH DEVICES TO PREVENT DISEASE HAS
NEVER BEEN EXPRESSLY PASSED UPON, ALTHOUGH IT APPEARS THAT SALES HAVE
LONG OCCURRED AND HAVE ONLY INFREQUENTLY BEEN CHALLENGED.  THIS
"UNDEVIATING POLICY  ...  THROUGHOUT ALL THE LONG YEARS  ... BESPEAKS
MORE THAN PROSECUTORIAL PARALYSIS."  POE V. ULLMAN, 367 U.S. 497, 502. 
MOREOVER, IT WOULD APPEAR THAT THE SALE OF CONTRACEPTIVES TO PREVENT
DISEASE IS PLAINLY LEGAL UNDER CONNECTICUT LAW. 

IN THESE CIRCUMSTANCES ONE IS RATHER HARD PRESSED TO EXPLAIN HOW THE
BAN ON USE BY MARRIED PERSONS IN ANY WAY PREVENTS USE OF SUCH DEVICES
BY PERSONS ENGAGING IN ILLICIT SEXUAL RELATIONS AND THEREBY CONTRIBUTES
TO THE STATE'S POLICY AGAINST SUCH RELATIONSHIPS.  NEITHER THE STATE
COURTS NOR THE STATE BEFORE THE BAR OF THIS COURT HAS TENDERED SUCH AN
EXPLANATION.  IT IS PURELY FANCIFUL TO BELIEVE THAT THE BROAD
PROSCRIPTION ON USE FACILITATES DISCOVERY OF USE BY PERSONS ENGAGING IN
A PROHIBITED RELATIONSHIP OR FOR SOME OTHER REASON MAKES SUCH USE MORE
UNLIKELY AND THUS CAN BE SUPPORTED BY ANY SORT OF ADMINISTRATIVE
CONSIDERATION.  PERHAPS THE THEORY IS THAT THE FLAT BAN ON USE PREVENTS
MARRIED PEOPLE FROM POSSESSING CONTRACEPTIVES AND WITHOUT THE READY
AVAILABILITY OF SUCH DEVICES FOR USE IN THE MARITAL RELATIONSHIP, THERE
WILL BE NO OR LESS TEMPTATION TO USE THEM IN EXTRAMARITAL ONES.  THIS
REASONING RESTS ON THE PREMISE THAT MARRIED PEOPLE WILL COMPLY WITH THE
BAN IN REGARD TO THEIR MARITAL RELATIONSHIP, NOTWITHSTANDING TOTAL
NONENFORCEMENT IN THIS CONTEXT AND APPARENT NONENFORCIBILITY, BUT WILL
NOT COMPLY WITH CRIMINAL STATUTES PROHIBITING EXTRAMARITAL AFFAIRS AND
THE ANTI-USE STATUTE IN RESPECT TO ILLICIT SEXUAL RELATIONSHIPS, A
PREMISE WHOSE VALIDITY HAS NOT BEEN DEMONSTRATED AND WHOSE INTRINSIC
VALIDITY IS NOT VERY EVIDENT.  AT MOST THE BROAD BAN IS OF MARGINAL
UTILITY TO THE DECLARED OBJECTIVE.  A STATUTE LIMITING ITS PROHIBITION
ON USE TO PERSONS ENGAGING IN THE PROHIBITED RELATIONSHIP WOULD SERVE
THE END POSITED BY CONNECTICUT IN THE SAME WAY, AND WITH THE SAME
EFFECTIVENESS, OR INEFFECTIVENESS, AS THE BROAD ANTI-USE STATUTE UNDER
ATTACK IN THIS CASE.  I FIND NOTHING IN THIS RECORD JUSTIFYING THE
SWEEPING SCOPE OF THIS STATUTE, WITH ITS TELLING EFFECT ON THE FREEDOMS
OF MARRIED PERSONS, AND THEREFORE CONCLUDE THAT IT DEPRIVES SUCH
PERSONS OF LIBERTY WITHOUT DUE PROCESS OF LAW. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

I AGREE WITH MY BROTHER STEWART'S DISSENTING OPINION.  AND LIKE HIM I
DO NOT TO ANY EXTENT WHATEVER BASE MY VIEW THAT THIS CONNECTICUT LAW IS
CONSTITUTIONAL ON A BELIEF THAT THE LAW IS WISE OR THAT ITS POLICY IS A
GOOD ONE.  IN ORDER THAT THERE MAY BE NO ROOM AT ALL TO DOUBT WHY I
VOTE AS I DO, I FEEL CONSTRAINED TO ADD THAT THE LAW IS EVERY BIT AS
OFFENSIVE TO ME AS IT IS TO MY BRETHREN OF THE MAJORITY AND MY BROTHERS
HARLAN, WHITE AND GOLDBERG WHO, RECITING REASONS WHY IT IS OFFENSIVE TO
THEM, HOLD IT UNCONSTITUTIONAL.  THERE IS NO SINGLE ONE OF THE GRAPHIC
AND ELOQUENT STRICTURES AND CRITICISMS FIRED AT THE POLICY OF THIS
CONNECTICUT LAW EITHER BY THE COURT'S OPINION OR BY THOSE OF MY
CONCURRING BRETHREN TO WHICH I CANNOT SUBSCRIBE - EXCEPT THEIR
CONCLUSION THAT THE EVIL QUALITIES THEY SEE IN THE LAW MAKE IT
UNCONSTITUTIONAL.    HAD THE DOCTOR DEFENDANT HERE, OR EVEN THE
NONDOCTOR DEFENDANT, BEEN CONVICTED OF DOING NOTHING MORE THAN
EXPRESSING OPINIONS TO PERSONS COMING TO THE CLINIC THAT CERTAIN
CONTRACEPTIVE DEVICES, MEDICINES OR PRACTICES WOULD DO THEM GOOD AND
WOULD BE DESIRABLE, OR FOR TELLING PEOPLE HOW DEVICES COULD BE USED, I
CAN THINK OF NO REASONS AT THIS TIME WHY THEIR EXPRESSIONS OF VIEWS
WOULD NOT BE PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS, WHICH
GUARANTEE FREEDOM OF SPEECH.  CF. BROTHERHOOD OF RAILROAD TRAINMEN V.
VIRGINIA EX REL. VIRGINIA STATE BAR, 377 U.S. 1; NAACP V. BUTTON, 371
U.S. 415.  BUT SPEECH IS ONE THING; CONDUCT AND PHYSICAL ACTIVITIES ARE
QUITE ANOTHER.  SEE, E.G., COX V. LOUISIANA, 379 U.S. 536, 554-555; COX
V. LOUISIANA, 379 U.S. 559, 563-564; ID., 575-584 (CONCURRING OPINION);
GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490, CF.  REYNOLDS V.
UNITED STATES, 98 U.S. 145, 163-164.  THE TWO DEFENDANTS HERE WERE
ACTIVE PARTICIPANTS IN AN ORGANIZATION WHICH GAVE PHYSICAL EXAMINATIONS
TO WOMEN, ADVISED THEM WHAT KIND OF CONTRACEPTIVE DEVICES OR MEDICINES
WOULD MOST LIKELY BE SATISFACTORY FOR THEM, AND THEN SUPPLIED THE
DEVICES THEMSELVES, ALL FOR A GRADUATED SCALE OF FEES, BASED ON THE
FAMILY INCOME.  THUS THESE DEFENDANTS ADMITTEDLY ENGAGED WITH OTHERS IN
A PLANNED COURSE OF CONDUCT TO HELP PEOPLE VIOLATE THE CONNECTICUT
LAW.  MERELY BECAUSE SOME SPEECH WAS USED IN CARRYING ON THAT CONDUCT -
JUST AS IN ORDINARY LIFE SOME SPEECH ACCOMPANIES MOST KINDS OF CONDUCT
WE ARE NOT IN MY VIEW JUSTIFIED IN HOLDING THAT THE FIRST AMENDMENT
FORBIDS THE STATE TO PUNISH THEIR CONDUCT.  STRONGLY AS I DESIRE TO
PROTECT ALL FIRST AMENDMENT FREEDOMS, I AM UNABLE TO STRETCH THE
AMENDMENT SO AS TO AFFORD PROTECTION TO THE CONDUCT OF THESE DEFENDANTS
IN VIOLATING THE CONNECTICUT LAW.  WHAT WOULD BE THE CONSTITUTIONAL
FATE OF THE LAW IF HEREAFTER APPLIED TO PUNISH NOTHING BUT SPEECH IS,
AS I HAVE SAID, QUITE ANOTHER MATTER. 

THE COURT TALKS ABOUT A CONSTITUTIONAL "RIGHT OF PRIVACY" AS THOUGH
THERE IS SOME CONSTITUTIONAL PROVISION OR PROVISIONS FORBIDDING ANY LAW
EVER TO BE PASSED WHICH MIGHT ABRIDGE THE "PRIVACY" OF INDIVIDUALS. 
BUT THERE IS NOT.  THERE ARE, OF COURSE, GUARANTEES IN CERTAIN SPECIFIC
CONSTITUTIONAL PROVISIONS WHICH ARE DESIGNED IN PART TO PROTECT PRIVACY
AT CERTAIN TIMES AND PLACES WITH RESPECT TO CERTAIN ACTIVITIES.  SUCH,
FOR EXAMPLE, IS THE FOURTH AMENDMENT'S GUARANTEE AGAINST "UNREASONABLE
SEARCHES AND SEIZURES."  BUT I THINK IT BELITTLES THAT AMENDMENT TO
TALK ABOUT IT AS THOUGH IT PROTECTS NOTHING BUT "PRIVACY."  TO TREAT IT
THAT WAY IS TO GIVE IT A NIGGARDLY INTERPRETATION, NOT THE KIND OF
LIBERAL READING I THINK ANY BILL OF RIGHTS PROVISION SHOULD BE GIVEN. 
THE AVERAGE MAN WOULD VERY LIKELY NOT HAVE HIS FEELINGS SOOTHED ANY
MORE BY HAVING HIS PROPERTY SEIZED OPENLY THAN BY HAVING IT SEIZED
PRIVATELY AND BY STEALTH.  HE SIMPLY WANTS HIS PROPERTY LEFT ALONE. 
AND A PERSON CAN BE JUST AS MUCH, IF NOT MORE, IRRITATED, ANNOYED AND
INJURED BY AN UNCEREMONIOUS PUBLIC ARREST BY A POLICEMAN AS HE IS BY A
SEIZURE IN THE PRIVACY OF HIS OFFICE OR HOME. 

ONE OF THE MOST EFFECTIVE WAYS OF DILUTING OR EXPANDING A
CONSTITUTIONALLY GUARANTEED RIGHT IS TO SUBSTITUTE FOR THE CRUCIAL WORD
OR WORDS OF A CONSTITUTIONAL GUARANTEE ANOTHER WORD OR WORDS, MORE OR
LESS FLEXIBLE AND MORE OR LESS RESTRICTED IN MEANING.  THIS FACT IS
WELL ILLUSTRATED BY THE USE OF THE TERM "RIGHT OF PRIVACY" AS A
COMPREHENSIVE SUBSTITUTE FOR THE FOURTH AMENDMENT'S GUARANTEE AGAINST
"UNREASONABLE SEARCHES AND SEIZURES."  "PRIVACY" IS A BROAD, ABSTRACT
AND AMBIGUOUS CONCEPT WHICH CAN EASILY BE SHRUNKEN IN MEANING BUT WHICH
CAN ALSO, ON THE OTHER HAND, EASILY BE INTERPRETED AS A CONSTITUTIONAL
BAN AGAINST MANY THINGS OTHER THAN SEARCHES AND SEIZURES.  I HAVE
EXPRESSED THE VIEW MANY TIMES THAT FIRST AMENDMENT FREEDOMS, FOR
EXAMPLE, HAVE SUFFERED FROM A FAILURE OF THE COURTS TO STICK TO THE
SIMPLE LANGUAGE OF THE FIRST AMENDMENT IN CONSTRUING IT, INSTEAD OF
INVOKING MULTITUDES OF WORDS SUBSTITUTED FOR THOSE THE FRAMERS USED. 
SEE, E.G., NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 293
(CONCURRING OPINION); CASES COLLECTED IN CITY OF EL PASO V. SIMMONS,
379 U.S. 497, 517, N. 1 (DISSENTING OPINION); BLACK, THE BILL OF
RIGHTS, 35 N.Y.U.L. REV. 865.  FOR THESE REASONS I GET NOWHERE IN THIS
CASE BY TALK ABOUT A CONSTITUTIONAL "RIGHT OF PRIVACY" AS AN EMANATION
FROM ONE OR MORE CONSTITUTIONAL PROVISIONS.  (FN1)  I LIKE MY PRIVACY
AS WELL AS THE NEXT ONE, BUT I AM NEVERTHELESS COMPELLED TO ADMIT THAT
GOVERNMENT HAS A RIGHT TO INVADE IT UNLESS PROHIBITED BY SOME SPECIFIC
CONSTITUTIONAL PROVISION.  FOR THESE REASONS I CANNOT AGREE WITH THE
COURT'S JUDGMENT AND THE REASONS IT GIVES FOR HOLDING THIS CONNECTICUT
LAW UNCONSTITUTIONAL. 

THIS BRINGS ME TO THE ARGUMENTS MADE BY MY BROTHERS HARLAN, WHITE AND
GOLDBERG FOR INVALIDATING THE CONNECTICUT LAW.  BROTHERS HARLAN (FN2)
AND WHITE WOULD INVALIDATE IT BY RELIANCE ON THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, BUT BROTHER GOLDBERG, WHILE AGREEING WITH
BROTHER HARLAN, RELIES ALSO ON THE NINTH AMENDMENT.  I HAVE NO DOUBT
THAT THE CONNECTICUT LAW COULD BE APPLIED IN SUCH A WAY AS TO ABRIDGE
FREEDOM OF SPEECH AND PRESS AND THEREFORE VIOLATE THE FIRST AND
FOURTEENTH AMENDMENTS.  MY DISAGREEMENT WITH THE COURT'S OPINION
HOLDING THAT THERE IS SUCH A VIOLATION HERE IS A NARROW ONE, RELATING
TO THE APPLICATION OF THE FIRST AMENDMENT TO THE FACTS AND
CIRCUMSTANCES OF THIS PARTICULAR CASE.  BUT MY DISAGREEMENT WITH
BROTHERS HARLAN, WHITE AND GOLDBERG IS MORE BASIC.  I THINK THAT IF
PROPERLY CONSTRUED NEITHER THE DUE PROCESS CLAUSE NOR THE NINTH
AMENDMENT, NOR BOTH TOGETHER, COULD UNDER ANY CIRCUMSTANCES BE A PROPER
BASIS FOR INVALIDATING THE CONNECTICUT LAW.  I DISCUSS THE DUE PROCESS
AND NINTH AMENDMENT ARGUMENTS TOGETHER BECAUSE ON ANALYSIS THEY TURN
OUT TO BE THE SAME THING - MERELY USING DIFFERENT WORDS TO CLAIM FOR
THIS COURT AND THE FEDERAL JUDICIARY POWER TO INVALIDATE ANY
LEGISLATIVE ACT WHICH THE JUDGES FIND IRRATIONAL, UNREASONABLE OR
OFFENSIVE. 

THE DUE PROCESS ARGUMENT WHICH MY BROTHERS HARLAN AND WHITE ADOPT
HERE IS BASED, AS THEIR OPINIONS INDICATE, ON THE PREMISE THAT THIS
COURT IS VESTED WITH POWER TO INVALIDATE ALL STATE LAWS THAT IT
CONSIDERS TO BE ARBITRARY, CAPRICIOUS, UNREASONABLE, OR OPPRESSIVE, OR
ON THIS COURT'S BELIEF THAT A PARTICULAR STATE LAW UNDER SCRUTINY HAS
NO "RATIONAL OR JUSTIFYING" PURPOSE, OR IS OFFENSIVE TO A "SENSE OF
FAIRNESS AND JUSTICE."  (FN3)  IF THESE FORMULAS BASED ON "NATURAL
JUSTICE," OR OTHERS WHICH MEAN THE SAME THING, (FN4) ARE TO PREVAIL,
THEY REQUIRE JUDGES TO DETERMINE WHAT IS OR IS NOT CONSTITUTIONAL ON
THE BASIS OF THEIR OWN APPRAISAL OF WHAT LAWS ARE UNWISE OR
UNNECESSARY.  THE POWER TO MAKE SUCH DECISIONS IS OF COURSE THAT OF A
LEGISLATIVE BODY.  SURELY IT HAS TO BE ADMITTED THAT NO PROVISION OF
THE CONSTITUTION SPECIFICALLY GIVES SUCH BLANKET POWER TO COURTS TO
EXERCISE SUCH A SUPERVISORY VETO OVER THE WISDOM AND VALUE OF
LEGISLATIVE POLICIES AND TO HOLD UNCONSTITUTIONAL THOSE LAWS WHICH THEY
BELIEVE UNWISE OR DANGEROUS.  I READILY ADMIT THAT NO LEGISLATIVE BODY,
STATE OR NATIONAL, SHOULD PASS LAWS THAT CAN JUSTLY BE GIVEN ANY OF THE
INVIDIOUS LABELS INVOKED AS CONSTITUTIONAL EXCUSES TO STRIKE DOWN STATE
LAWS.  BUT PERHAPS IT IS NOT TOO MUCH TO SAY THAT NO LEGISLATIVE BODY
EVER DOES PASS LAWS WITHOUT BELIEVING THAT THEY WILL ACCOMPLISH A SANE,
RATIONAL, WISE AND JUSTIFIABLE PURPOSE.  WHILE I COMPLETELY SUBSCRIBE
TO THE HOLDING OF MARBURY V. MADISON, 1 CRANCH 137, AND SUBSEQUENT
CASES, THAT OUR COURT HAS CONSTITUTIONAL POWER TO STRIKE DOWN STATUTES,
STATE OR FEDERAL, THAT VIOLATE COMMANDS OF THE FEDERAL CONSTITUTION, I
DO NOT BELIEVE THAT WE ARE GRANTED POWER BY THE DUE PROCESS CLAUSE OR
ANY OTHER CONSTITUTIONAL PROVISION OR PROVISIONS TO MEASURE
CONSTITUTIONALITY BY OUR BELIEF THAT LEGISLATION IS ARBITRARY,
CAPRICIOUS OR UNREASONABLE, OR ACCOMPLISHES NO JUSTIFIABLE PURPOSE, OR
IS OFFENSIVE TO OUR OWN NOTIONS OF "CIVILIZED STANDARDS OF CONDUCT." 
(FN5)  SUCH AN APPRAISAL OF THE WISDOM OF LEGISLATION IS AN ATTRIBUTE
OF THE POWER TO MAKE LAWS, NOT OF THE POWER TO INTERPRET THEM.  THE USE
BY FEDERAL COURTS OF SUCH A FORMULA OR DOCTRINE OR WHATNOT TO VETO
FEDERAL OR STATE LAWS SIMPLY TAKES AWAY FROM CONGRESS AND STATES THE
POWER TO MAKE LAWS BASED ON THEIR OWN JUDGMENT OF FAIRNESS AND WISDOM
AND TRANSFERS THAT POWER TO THIS COURT FOR ULTIMATE DETERMINATION - A
POWER WHICH WAS SPECIFICALLY DENIED TO FEDERAL COURTS BY THE CONVENTION
THAT FRAMED THE CONSTITUTION.  (FN6) 

OF THE CASES ON WHICH MY BROTHERS WHITE AND GOLDBERG RELY SO HEAVILY,
UNDOUBTEDLY THE REASONING OF TWO OF THEM SUPPORTS THEIR RESULT HERE -
AS WOULD THAT OF A NUMBER OF OTHERS WHICH THEY DO NOT BOTHER TO NAME,
E.G., LOCHNER V. NEW YORK, 198 U.S. 45, COPPAGE V. KANSAS, 236 U.S. 1,
JAY BURNS BAKING CO. V. BRYAN, 264 U.S. 504, AND ADKINS V. CHILDREN'S
HOSPITAL, 261 U.S. 525.  THE TWO THEY DO CITE AND QUOTE FROM, MEYER V.
NEBRASKA, 262 U.S. 390, AND PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510,
WERE BOTH DECIDED IN OPINIONS BY MR. JUSTICE MCREYNOLDS WHICH
ELABORATED THE SAME NATURAL LAW DUE PROCESS PHILOSOPY FOUND IN LOCHNER
V. NEW YORK, SUPRA, ONE OF THE CASES ON WHICH HE RELIED IN MEYER, ALONG
WITH SUCH OTHER LONG-DISCREDITED DECISIONS AS, E.G., ADAMS V. TANNER,
244 U.S. 590, AND ADKINS V. CHILDREN'S HOSPITAL, SUPRA.  MEYER HELD
UNCONSTITUTIONAL, AS AN "ARBITRARY" AND UNREASONABLE INTERFERENCE WITH
THE RIGHT OF A TEACHER TO CARRY ON HIS OCCUPATION AND OF PARENTS TO
HIRE HIM, A STATE LAW FORBIDDING THE TEACHING OF MODERN FOREIGN
LANGUAGES TO YOUNG CHILDREN IN THE SCHOOLS.  (FN7)  AND IN PIERCE,
RELYING PRINCIPALLY ON MEYER, MR. JUSTICE MCREYNOLDS SAID THAT A STATE
LAW REQUIRING THAT ALL CHILDREN ATTEND PUBLIC SCHOOLS INTERFERED
UNCONSTITUTIONALLY WITH THE PROPERTY RIGHTS OF PRIVATE SCHOOL
CORPORATIONS BECAUSE IT WAS AN "ARBITRARY, UNREASONABLE AND UNLAWFUL
INTERFERENCE" WHICH THREATENED "DESTRUCTION OF THEIR BUSINESS AND
PROPERTY."  268 U.S., AT 536.  WITHOUT EXPRESSING AN OPINION AS TO
WHETHER EITHER OF THOSE CASES REACHED A CORRECT RESULT IN LIGHT OF OUR
LATER DECISIONS APPLYING THE FIRST AMENDMENT TO THE STATES THROUGH THE
FOURTEENTH, (FN8) I MERELY POINT OUT THAT THE REASONING STATED IN MEYER
AND PIERCE WAS THE SAME NATURAL LAW DUE PROCESS PHILOSOPHY WHICH MANY
LATER OPINIONS REPUDIATED, AND WHICH I CANNOT ACCEPT.  BROTHERS WHITE
AND GOLDBERG ALSO CITE OTHER CASES, SUCH AS NAACP V. BUTTON, 371 U.S.
415, SHELTON V. TUCKER, 364 U.S. 479, AND SCHNEIDER V. STATE, 308 U.S.
147, WHICH HELD THAT STATES IN REGULATING CONDUCT COULD NOT,
CONSISTENTLY WITH THE FIRST AMENDMENT AS APPLIED TO THEM BY THE
FOURTEENTH PASS UNNECESSARILY BROAD LAWS WHICH MIGHT INDIRECTLY
INFRINGE ON FIRST AMENDMENT FREEDOMS.  (FN9)  SEE BROTHERHOOD OF
RAILROAD TRAINMEN V. VIRGINIA EX REL. VIRGINIA STATE BAR, 377 U.S. 1, 7
8.  (FN10)  BROTHERS WHITE AND GOLDBERG NOW APPARENTLY WOULD START FROM
THIS REQUIREMENT THAT LAWS BE NARROWLY DRAFTED SO AS NOT TO CURTAIL
FREE SPEECH AND ASSEMBLY, AND EXTEND IT LIMITLESSLY TO REQUIRE STATES
TO JUSTIFY ANY LAW RESTRICTING "LIBERTY" AS MY BRETHREN DEFINE
"LIBERTY."  THIS WOULD MEAN AT THE VERY LEAST, I SUPPOSE, THAT EVERY
STATE CRIMINAL STATUTE - SINCE IT MUST INEVITABLY CURTAIL "LIBERTY" TO
SOME EXTENT - WOULD BE SUSPECT, AND WOULD HAVE TO BE JUSTIFIED TO THIS
COURT.  (FN11) 

MY BROTHER GOLDBERG HAS ADOPTED THE RECENT DISCOVERY (FN12) THAT THE
NINTH AMENDMENT AS WELL AS THE DUE PROCESS CLAUSE CAN BE USED BY THIS
COURT AS AUTHORITY TO STRIKE DOWN ALL STATE LEGISLATION WHICH THIS
COURT THINKS VIOLATES "FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE,"
OR IS CONTRARY TO THE "TRADITIONS AND COLLECTIVE CONSCIENCE OF OUR
PEOPLE."  HE ALSO STATES, WITHOUT PROOF SATISFACTORY TO ME, THAT IN
MAKING DECISIONS ON THIS BASIS JUDGES WILL NOT CONSIDER "THEIR PERSONAL
AND PRIVATE NOTIONS."  ONE MAY ASK HOW THEY CAN AVOID CONSIDERING
THEM.  OUR COURT CERTAINLY HAS NO MACHINERY WITH WHICH TO TAKE A GALLUP
POLL.  (FN13)  AND THE SCIENTIFIC MIRACLES OF THIS AGE HAVE NOT YET
PRODUCED A GADGET WHICH THE COURT CAN USE TO DETERMINE WHAT TRADITIONS
ARE ROOTED IN THE "COLLECTIVE CONSCIENCE OF OUR PEOPLE."  MOREOVER, ONE
WOULD CERTAINLY HAVE TO LOOK FAR BEYOND THE LANGUAGE OF THE NINTH
AMENDMENT (FN14) TO FIND THAT THE FRAMERS VESTED IN THIS COURT ANY SUCH
AWESOME VETO POWERS OVER LAWMAKING, EITHER BY THE STATES OR BY THE
CONGRESS.  NOR DOES ANYTHING IN THE HISTORY OF THE AMENDMENT OFFER ANY
SUPPORT FOR SUCH A SHOCKING DOCTRINE.  THE WHOLE HISTORY OF THE
ADOPTION OF THE CONSTITUTION AND BILL OF RIGHTS POINTS THE OTHER WAY,
AND THE VERY MATERIAL QUOTED BY MY BROTHER GOLDBERG SHOWS THAT THE
NINTH AMENDMENT WAS INTENDED TO PROTECT AGAINST THE IDEA THAT "BY
ENUMERATING PARTICULAR EXCEPTIONS TO THE GRANT OF POWER" TO THE FEDERAL
GOVERNMENT, "THOSE RIGHTS WHICH WERE NOT SINGLED OUT, WERE INTENDED TO
BE ASSIGNED INTO THE HANDS OF THE GENERAL GOVERNMENT (THE UNITED
STATES), AND WERE CONSEQUENTLY INSECURE."  (FN15)  THAT AMENDMENT WAS
PASSED, NOT TO BROADEN THE POWERS OF THIS COURT OR ANY OTHER DEPARTMENT
OF "THE GENERAL GOVERNMENT," BUT, AS EVERY STUDENT OF HISTORY KNOWS, TO
ASSURE THE PEOPLE THAT THE CONSTITUTION IN ALL ITS PROVISIONS WAS
INTENDED TO LIMIT THE FEDERAL GOVERNMENT TO THE POWERS GRANTED
EXPRESSLY OR BY NECESSARY IMPLICATION.  IF ANY BROAD, UNLIMITED POWER
TO HOLD LAWS UNCONSTITUTIONAL BECAUSE THEY OFFEND WHAT THIS COURT
CONCEIVES TO BE THE "COLLECTIVE CONSCIENCE OF OUR PEOPLE" IS VESTED IN
THIS COURT BY THE NINTH AMENDMENT, THE FOURTEENTH AMENDMENT, OR ANY
OTHER PROVISION OF THE CONSTITUTION, IT WAS NOT GIVEN BY THE FRAMERS,
BUT RATHER HAS BEEN BESTOWED ON THE COURT BY THE COURT.  THIS FACT IS
PERHAPS RESPONSIBILE FOR THE PARTICULAR PHENOMENON THAT FOR A PERIOD OF
A CENTURY AND A HALF NO SERIOUS SUGGESTION WAS EVER MADE THAT THE NINTH
AMENDMENT, ENACTED TO PROTECT STATE POWERS AGAINST FEDERAL INVASION,
COULD BE USED AS A WEAPON OF FEDERAL POWER TO PREVENT STATE
LEGISLATURES FROM PASSING LAWS THEY CONSIDER APPROPRIATE TO GOVERN
LOCAL AFFAIRS.  USE OF ANY SUCH BROAD, UNBOUNDED JUDICIAL AUTHORITY
WOULD MAKE THIS COURT'S MEMBERS A DAY-TO-DAY CONSTITUTIONAL
CONVENTION. 

I REPEAT SO AS NOT TO BE MISUNDERSTOOD THAT THIS COURT DOES HAVE
POWER, WHICH IT SHOULD EXERCISE, TO HOLD LAWS UNCONSTITUTIONAL WHERE
THEY ARE FORBIDDEN BY THE FEDERAL CONSTITUTION.  MY POINT IS THAT THERE
IS NO PROVISION OF THE CONSTITUTION WHICH EITHER EXPRESSLY OR IMPLIEDLY
VESTS POWER IN THIS COURT TO SIT AS A SUPERVISORY AGENCY OVER ACTS OF
DULY CONSTITUTED LEGISLATIVE BODIES AND SET ASIDE THEIR LAWS BECAUSE OF
THE COURT'S BELIEF THAT THE LEGISLATIVE POLICIES ADOPTED ARE
UNREASONABLE, UNWISE, ARBITRARY, CAPRICIOUS OR IRRATIONAL.  THE
ADOPTION OF SUCH A LOOSE, FLEXIBLE, UNCONTROLLED STANDARD FOR HOLDING
LAWS UNCONSTITUTIONAL, IF EVER IT IS FINALLY ACHIEVED, WILL AMOUNT TO A
GREAT UNCONSTITUTIONAL SHIFT OF POWER TO THE COURTS WHICH I BELIEVE AND
AM CONSTRAINED TO SAY WILL BE BAD FOR THE COURTS AND WORSE FOR THE
COUNTRY.  SUBJECTING FEDERAL AND STATE LAWS TO SUCH AN UNRESTRAINED AND
UNRESTRAINABLE JUDICIAL CONTROL AS TO THE WISDOM OF LEGISLATIVE
ENACTMENTS WOULD, I FEAR, JEOPARDIZE THE SEPARATION OF GOVERNMENTAL
POWERS THAT THE FRAMERS SET UP AND AT THE SAME TIME THREATEN TO TAKE
AWAY MUCH OF THE POWER OF STATES TO GOVERN THEMSELVES WHICH THE
CONSTITUTION PLAINLY INTENDED THEM TO HAVE.  (FN16) 

I REALIZE THAT MANY GOOD AND ABLE MEN HAVE ELOQUENTLY SPOKEN AND
WRITTEN, SOMETIMES IN RHAPSODICAL STRAINS, ABOUT THE DUTY OF THIS COURT
TO KEEP THE CONSTITUTION IN TUNE WITH THE TIMES.  THE IDEA IS THAT THE
CONSTITUTION MUST BE CHANGED FROM TIME TO TIME AND THAT THIS COURT IS
CHARGED WITH A DUTY TO MAKE THOSE CHANGES.  FOR MYSELF, I MUST WITH ALL
DEFERENCE REJECT THAT PHILOSOPHY.  THE CONSTITUTION MAKERS KNEW THE
NEED FOR CHANGE AND PROVIDED FOR IT.  AMENDMENTS SUGGESTED BY THE
PEOPLE'S ELECTED REPRESENTATIVES CAN BE SUBMITTED TO THE PEOPLE OR
THEIR SELECTED AGENTS FOR RATIFICATION.  THAT METHOD OF CHANGE WAS GOOD
FOR OUR FATHERS, AND BEING SOMEWHAT OLD-FASHIONED I MUST ADD IT IS GOOD
ENOUGH FOR ME.  AND SO, I CANNOT RELY ON THE DUE PROCESS CLAUSE OR THE
NINTH AMENDMENT OR ANY MYSTERIOUS AND UNCERTAIN NATURAL LAW CONCEPT AS
A REASON FOR STRIKING DOWN THIS STATE LAW.  THE DUE PROCESS CLAUSE WITH
AN "ARBITRARY AND CAPRICIOUS" OR "SHOCKING TO THE CONSCIENCE" FORMULA
WAS LIBERALLY USED BY THIS COURT TO STRIKE DOWN ECONOMIC LEGISLATION IN
THE EARLY DECADES OF THIS CENTURY, THREATENING, MANY PEOPLE THOUGHT,
THE TRANQUILITY AND STABILITY OF THE NATION.  SEE, E.G., LOCHNER V. NEW
YORK, 198 U.S. 45.  THAT FORMULA, BASED ON SUBJECTIVE CONSIDERATIONS OF
"NATURAL JUSTICE," IS NO LESS DANGEROUS WHEN USED TO ENFORCE THIS
COURT'S VIEWS ABOUT PERSONAL RIGHTS THAN THOSE ABOUT ECONOMIC RIGHTS. 
I HAD THOUGHT THAT WE HAD LAID THAT FORMULA, AS A MEANS FOR STRIKING
DOWN STATE LEGISLATION, TO REST ONCE AND FOR ALL IN CASES LIKE WEST
COAST HOTEL CO. V. PARRISH, 300 U.S. 379; OLSEN V. NEBRASKA EX REL.
WESTERN REFERENCE & BOND ASSN., 313 U.S. 236, AND MANY OTHER OPINIONS. 
(FN17)  SEE ALSO LOCHNER V. NEW YORK, 198 U.S. 45, 74 (HOLMES, J.,
DISSENTING). 

IN FERGUSON V. SKRUPA, 372 U.S. 726, 730, THIS COURT TWO YEARS AGO
SAID IN AN OPINION JOINED BY ALL THE JUSTICES BUT ONE (FN18) THAT: 

"THE DOCTRINE THAT PREVAILED IN LOCHNER, COPPAGE, ADKINS, BURNS, AND
LIKE CASES - THAT DUE PROCESS AUTHORIZES COURTS TO HOLD LAWS
UNCONSTITUTIONAL WHEN THEY BELIEVE THE LEGISLATURE HAS ACTED UNWISELY -
HAS LONG SINCE BEEN DISCARDED.  WE HAVE RETURNED TO THE ORIGINAL
CONSTITUTIONAL PROPOSITION THAT COURTS DO NOT SUBSTITUTE THEIR SOCIAL
AND ECONOMIC BELIEFS FOR THE JUDGMENT OF LEGISLATIVE BODIES, WHO ARE
ELECTED TO PASS LAWS." 

AND ONLY SIX WEEKS AGO, WITHOUT EVEN BOTHERING TO HEAR ARGUMENT, THIS
COURT OVERRULED TYSON & BROTHERS V. BANTON, 273 U.S. 418, WHICH HAD
HELD STATE LAWS REGULATING TICKET BROKERS TO BE A DENIAL OF DUE PROCESS
OF LAW.  (FN19)  GOLD V. DICARLO, 380 U.S. 520.  I FIND APRIL'S HOLDING
HARD TO SQUARE WITH WHAT MY CONCURRING BRETHREN URGE TODAY.  THEY WOULD
REINSTATE THE LOCHNER, COPPAGE, ADKINS, BURNS LINE OF CASES, CASES FROM
WHICH THIS COURT RECOILED AFTER THE 1930'S AND WHICH HAD BEEN I THOUGHT
TOTALLY DISCREDITED UNTIL NOW.  APPARENTLY MY BRETHREN HAVE LESS
QUARREL WITH STATE ECONOMIC REGULATIONS THAN FORMER JUSTICES OF THEIR
PERSUASION HAD.  BUT ANY LIMITATION UPON THEIR USING THE NATURAL LAW
DUE PROCESS PHILOSOPHY TO STRIKE DOWN ANY STATE LAW, DEALING WITH ANY
ACTIVITY WHATEVER, WILL OBVIOUSLY BE ONLY SELF-IMPOSED.  (FN20) 

IN 1798, WHEN THIS COURT WAS ASKED TO HOLD ANOTHER CONNECTICUT LAW
UNCONSTITUTIONAL, JUSTICE IREDELL SAID: 

"IT HAS BEEN THE POLICY OF ALL THE AMERICAN STATES, WHICH HAVE,
INDIVIDUALLY, FRAMED THEIR STATE CONSTITUTIONS SINCE THE REVOLUTION,
AND OF THE PEOPLE OF THE UNITED STATES, WHEN THEY FRAMED THE FEDERAL
CONSTITUTION, TO DEFINE WITH PRECISION THE OBJECTS OF THE LEGISLATIVE
POWER, AND TO REFRAIN ITS EXERCISE WITHIN MARKED AND SETTLED
BOUNDARIES.  IF ANY ACT OF CONGRESS, OR OF THE LEGISLATURE OF A STATE,
VIOLATES THOSE CONSTITUTIONAL PROVISIONS, IT IS UNQUESTIONABLY VOID;
THOUGH, I ADMIT, THAT AS THE AUTHORITY TO DECLARE IT VOID IS OF A
DELICATE AND AWFUL NATURE, THE COURT WILL NEVER RESORT TO THAT
AUTHORITY, BUT IN A CLEAR AND URGENT CASE.  IF, ON THE OTHER HAND, THE
LEGISLATURE OF THE UNION, OR THE LEGISLATURE OF ANY MEMBER OF THE
UNION, SHALL PASS A LAW, WITHIN THE GENERAL SCOPE OF THEIR
CONSTITUTIONAL POWER, THE COURT CANNOT PRONOUNCE IT TO BE VOID, MERELY
BECAUSE IT IS, IN THEIR JUDGMENT, CONTRARY TO THE PRINCIPLES OF NATURAL
JUSTICE.  THE IDEAS OF NATURAL JUSTICE ARE REGULATED BY NO FIXED
STANDARD:  THE ABLEST AND THE PUREST MEN HAVE DIFFERED UPON THE
SUBJECT; AND ALL THAT THE COURT COULD PROPERLY SAY, IN SUCH AN EVENT,
WOULD BE, THAT THE LEGISLATURE (POSSESSED OF AN EQUAL RIGHT OF OPINION)
HAD PASSED AN ACT WHICH, IN THE OPINION OF THE JUDGES, WAS INCONSISTENT
WITH THE ABSTRACT PRINCIPLES OF NATURAL JUSTICE."  CALDER V. BULL, 3
DALL.  386, 399. 

I WOULD ADHERE TO THAT CONSTITUTIONAL PHILOSOPHY IN PASSING ON THIS
CONNECTICUT LAW TODAY.  I AM NOT PERSUADED TO DEVIATE FROM THE VIEW
WHICH I STATED IN 1947 IN ADAMSON V. CALIFORNIA, 332 U.S. 46, 90-92
(DISSENTING OPINION): 

"SINCE MARBURY V. MADISON, 1 CRANCH 137, WAS DECIDED, THE PRACTICE
HAS BEEN FIRMLY ESTABLISHED, FOR BETTER OR WORSE, THAT COURTS CAN
STRIKE DOWN LEGISLATIVE ENACTMENTS WHICH VIOLATE THE CONSTITUTION. 
THIS PROCESS, OF COURSE, INVOLVES INTERPRETATION, AND SINCE WORDS CAN
HAVE MANY MEANINGS, INTERPRETATION OBVIOUSLY MAY RESULT IN CONTRACTION
OR EXTENSION OF THE ORIGINAL PURPOSE OF A CONSTITUTIONAL PROVISION,
THEREBY AFFECTING POLICY.  BUT TO PASS UPON THE CONSTITUTIONALITY OF
STATUTES BY LOOKING TO THE PARTICULAR STANDARDS ENUMERATED IN THE BILL
OF RIGHTS AND OTHER PARTS OF THE CONSTITUTION IS ONE THING; TO
INVALIDATE STATUTES BECAUSE OF APPLICATION OF 'NATURAL LAW' DEEMED TO
BE ABOVE AND UNDEFINED BY THE CONSTITUTION IS ANOTHER.  'IN THE ONE
INSTANCE, COURTS PROCEEDING WITHIN CLEARLY MARKED CONSTITUTIONAL
BOUNDARIES SEEK TO EXECUTE POLICIES WRITTEN INTO THE CONSTITUTION:  IN
THE OTHER, THEY REAM AT WILL IN THE LIMITLESS AREA OF THEIR OWN BELIEFS
AS TO REASONABLENESS AND ACTUALLY SELECT POLICIES, A RESPONSIBILITY
WHICH THE CONSTITUTION ENTRUSTS TO THE LEGISLATIVE REPRESENTATIVES OF
THE PEOPLE.'  FEDERAL POWER COMMISSION V. PIPELINE CO., 315 U.S. 575,
599, 601, N. 4."  (F)(FOOTNOTES OMITTED.) 

THE LATE JUDGE LEARNED HAND, AFTER EMPHASIZING HIS VIEW THAT JUDGES
SHOULD NOT USE THE DUE PROCESS FORMULA SUGGESTED IN THE CONCURRING
OPINIONS TODAY OR ANY OTHER FORMULA LIKE IT TO INVALIDATE LEGISLATION
OFFENSIVE TO THEIR "PERSONAL PREFERENCES," (FN22) MADE THE STATEMENT,
WITH WHICH I FULLY AGREE, THAT: 

"FOR MYSELF IT WOULD BE MOST IRKSOME TO BE RULED BY A BEVY OF
PLATONIC GUARDIANS, EVEN IF I KNEW HOW TO CHOOSE THEM, WHICH I
ASSUREDLY DO NOT."  (FN23) 

SO FAR AS I AM CONCERNED, CONNECTICUT'S LAW AS APPLIED HERE IS NOT
FORBIDDEN BY ANY PROVISION OF THE FEDERAL CONSTITUTION AS THAT
CONSTITUTION WAS WRITTEN, AND I WOULD THEREFORE AFFIRM. 

FN1  THE PHRASE "RIGHT TO PRIVACY" APPEARS FIRST TO HAVE GAINED
CURRENTLY FROM AN ARTICLE WRITTEN BY MESSRS.  WARREN AND (LATER MR.
JUSTICE) BRANDEIS IN 1890 WHICH URGED THAT STATES SHOULD GIVE SOME FORM
OF TORT RELIEF TO PERSONS WHOSE PRIVATE AFFAIRS WERE EXPLOITED BY
OTHERS.  THE RIGHT TO PRIVACY, 4 HARV. L. REV. 193.  LARGELY AS A
RESULT OF THIS ARTICLE, SOME STATES HAVE PASSED STATUTES CREATING SUCH
A CAUSE OF ACTION, AND IN OTHERS STATE COURTS HAVE DONE THE SAME THING
BY EXERCISING THEIR POWERS AS COURTS OF COMMON LAW.  SEE GENERALLY 41
AM. JUR.  926-927.  THUS THE SUPREME COURT OF GEORGIA, IN GRANTING A
CAUSE OF ACTION FOR DAMAGES TO A MAN WHOSE PICTURE HAD BEEN USED IN A
NEWSPAPER ADVERTISEMENT WITHOUT HIS CONSENT, SAID THAT "A RIGHT OF
PRIVACY IN MATTERS PURELY PRIVATE IS  ...  DERIVED FROM NATURAL LAW"
AND THAT "THE CONCULSION REACHED BY US SEEMS TO BE  ... THOROUGHLY IN
ACCORD WITH NATURAL JUSTICE, WITH THE PRINCIPLES OF THE LAW OF EVERY
CIVILIZED NATION, AND ESPECIALLY WITH THE ELASTIC PRINCIPLES OF THE
COMMON LAW  ...  ."  PAVESICH V. NEW ENGLAND LIFE INSURANCE CO., 122
GA. 190, 194, 218, 50 S.E. 68, 70, 80.  OBSERVING THAT "THE RIGHT OF
PRIVACY  ...  PRESSES FOR RECOGNITION HERE," TODAY THIS COURT, WHICH I
DID NOT UNDERSTAND TO HAVE POWER TO SIT AS A COURT OF COMMON LAW, NOW
APPEARS TO BE EXALTING A PHRASE WHICH WARREN AND BRANDEIS USED IN
DISCUSSING GROUNDS FOR TORT RELIEF, TO THE LEVEL OF A CONSTITUTIONAL
RULE WHICH PREVENTS STATE LEGISLATURES FROM PASSING ANY LAW DEEMED BY
THIS COURT TO INTERFERE WITH "PRIVACY." 

FN2  BROTHER HARLAN'S VIEWS ARE SPELLED OUT AT GREATER LENGTH IN HIS
DISSENTING OPINION IN POE V. ULLMAN, 367 U.S. 497, 539-555. 

FN3  INDEED, BROTHER WHITE APPEARS TO HAVE GONE BEYOND PAST
PRONOUNCEMENTS OF THE NATURAL LAW DUE PROCESS THEORY, WHICH AT LEAST
SAID THAT THE COURT SHOULD EXERCISE THIS UNLIMITED POWER TO DECLARE
STATE ACTS UNCONSTITUTIONAL WITH "RESTRAINT."  HE NOW SAYS THAT,
INSTEAD OF BEING PRESUMED CONSTITUTIONAL (SEE MUNN V. ILLINOIS, 94 U.S.
113, 123; COMPARE ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525, 544),
THE STATUTE HERE "BEARS A SUBSTANTIAL BURDEN OF JUSTIFICATION WHEN
ATTACKED UNDER THE FOURTEENTH AMENDMENT." 

FN4  A COLLECTION OF THE CATCHWORDS AND CATCH PHRASES INVOKED BY
JUDGES WHO WOULD STRIKE DOWN UNDER THE FOURTEENTH AMENDMENT LAWS WHICH
OFFEND THEIR NOTIONS OF NATURAL JUSTICE WOULD FILL MANY PAGES.  THUS IT
HAS BEEN SAID THAT THIS COURT CAN FORBID STATE ACTION WHICH "SHOCKS THE
CONSCIENCE," ROCHIN V. CALIFORNIA, 342 U.S. 165, 172, SUFFICIENTLY TO
"SHOCK ITSELF INTO THE PROTECTIVE ARMS OF THE CONSTITUTION," IRVINE V.
CALIFORNIA, 347 U.S. 128, 138 (CONCURRING OPINION).  IT HAS BEEN URGED
THAT STATES MAY NOT RUN COUNTER TO THE "DECENCIES OF CIVILIZED
CONDUCT," ROCHIN, SUPRA, AT 173, OR "SOME PRINCIPLE OF JUSTICE SO
ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO BE RANKED
AS FUNDAMENTAL," SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105, OR TO
"THOSE CANNONS OF DECENCY AND FAIRNESS WHICH EXPRESS THE NOTIONS OF
JUSTICE OF ENGLISH-SPEAKING PEOPLES," MALINSKI V. NEW YORK, 324 U.S.
401, 417 (CONCURRING OPINION), OR TO "THE COMMUNITY'S SENSE OF FAIR
PLAY AND DECENCY," ROCHIN, SUPRA, AT 173.  IT HAS BEEN SAID THAT WE
MUST DECIDE WHETHER A STATE LAW IS "FAIR, REASONABLE AND APPROPRIATE,"
OR IS RATHER "AN UNREASONABLE, UNNECESSARY AND ARBITRARY INTERFERENCE
WITH THE RIGHT OF THE INDIVIDUAL TO HIS PERSONAL LIBERTY OR TO ENTER
INTO  ...  CONTRACTS," LOCHNER V. NEW YORK, 198 U.S. 45, 56.  STATES,
UNDER THIS PHILOSOPHY, CANNOT ACT IN CONFLICT WITH "DEEPLY ROOTED
FEELINGS OF THE COMMUNITY," HALEY V. OHIO, 332 U.S. 596, 604 (SEPARATE
OPINION), OR WITH "FUNDAMENTAL NOTIONS OF FAIRNESS AND JUSTICE," ID.,
607.  SEE ALSO, E.G., WOLF V. COLORADO, 338 U.S. 25, 27 ("RIGHTS  ...
BASIC TO OUR FREE SOCIETY"); HEBERT V. LOUISIANA, 272 U.S. 312, 316
("FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE"); ADKINS V. CHILDREN'S
HOSPITAL, 261 U.S. 525, 561 ("ARBITRARY RESTRAINT OF  ...  LIBERTIES");
BETTS V. BRADY, 316 U.S. 455, 462 ("DENIAL OF FUNDAMENTAL FAIRNESS,
SHOCKING TO THE UNIVERSAL SENSE OF JUSTICE"); POE V. ULLMAN, 367 U.S.
497, 539 (DISSENTING OPINION)("INTOLERABLE AND UNJUSTIFIABLE"). 
PERHAPS THE CLEAREST, FRANKEST AND BRIEFEST EXPLANATION OF HOW THIS DUE
PROCESS APPROACH WORKS IS THE STATEMENT IN ANOTHER CASE HANDED DOWN
TODAY THAT THIS COURT IS TO INVOKE THE DUE PROCESS CLAUSE TO STRIKE
DOWN STATE PROCEDURES OR LAWS WHICH IT CAN "NOT TOLERATE."  LINKLETTER
V. WALKER, POST, P. 618, AT 631. 

FN5  SEE HAND, THE BILL OF RIGHTS (1958) 70: 

"JUDGES ARE SELDOM CONTENT MERELY TO ANNUL THE PARTICULAR SOLUTION
BEFORE THEM; THEY DO NOT, INDEED THEY MAY NOT, SAY THAT TAKING ALL
THINGS INTO CONSIDERATION, THE LEGISLATORS' SOLUTION IS TOO STRONG FOR
THE JUDICIAL STOMACH.  ON THE CONTRARY THEY WRAP UP THEIR VETO IN A
PROTECTIVE VEIL OF ADJECTIVES SUCH AS 'ARBITRARY,' 'ARTIFICIAL,'
'NORMAL,' 'REASONABLE,' 'INHERENT,' 'FUNDAMENTAL,' OR 'ESSENTIAL,'
WHOSE OFFICE USUALLY, THOUGH QUITE INNOCENTLY, IS TO DISGUISE WHAT THEY
ARE DOING AND IMPUTE TO IT A DERIVATION FAR MORE IMPRESSIVE THAN THEIR
PERSONAL PREFERENCES, WHICH ARE ALL THAT IN FACT LIE BEHIND THE
DECISION."  SEE ALSO ROCHIN V. CALIFORNIA, 342 U.S. 165, 174
(CONCURRING OPINION).  BUT SEE LINKLETTER V. WALKER, SUPRA, N. 4, AT
631.    FN6  THIS COURT HELD IN MARBURY V. MADISON, 1 CRANCH 137, THAT
THIS COURT HAS POWER TO INVALIDATE LAWS ON THE GROUND THAT THEY EXCEED
THE CONSTITUTIONAL POWER OF CONGRESS OR VIOLATE SOME SPECIFIC
PROHIBITION OF THE CONSTITUTION.  SEE ALSO FLETCHER V. PECK, 6 CRANCH
87.  BUT THE CONSTITUTIONAL CONVENTION DID ON AT LEAST TWO OCCASIONS
REJECT PROPOSALS WHICH WOULD HAVE GIVEN THE FEDERAL JUDICIARY A PART IN
RECOMMENDING LAWS OR IN VETOING AS BAD OR UNWISE THE LEGISLATION PASSED
BY THE CONGRESS.  EDMUND RANDOLPH OF VIRGINIA PROPOSED THAT THE
PRESIDENT: 

"  ...  AND A CONVENIENT NUMBER OF THE NATIONAL JUDICIARY, OUGHT TO
COMPOSE A COUNCIL OF REVISION WITH AUTHORITY TO EXAMINE EVERY ACT OF
THE NATIONAL LEGISLATURE BEFORE IT SHALL OPERATE, AND EVERY ACT OF A
PARTICULAR LEGISLATURE BEFORE A NEGATIVE THEREON SHALL BE FINAL; AND
THAT THE DISSENT OF THE SAID COUNCIL SHALL AMOUNT TO A REJECTION,
UNLESS THE ACT OF THE NATIONAL LEGISLATURE BE AGAIN PASSED, OR THAT OF
A PARTICULAR LEGISLATURE BE AGAIN NEGATIVED BY  ...  (ORIGINAL WORDING
ILLEGIBLE)  ...  OF THE MEMBERS OF EACH BRANCH."  1 THE RECORDS OF THE
FEDERAL CONVENTION OF 1787 (FARRAND ED. 1911) 21.   IN SUPPORT OF A
PLAN OF THIS KIND JAMES WILSON OF PENNSYLVANIA ARGUED THAT: 

"  ...  IT HAD BEEN SAID THAT THE JUDGES, AS EXPOSITORS OF THE LAWS
WOULD HAVE AN OPPORTUNITY OF DEFENDING THEIR CONSTITUTIONAL RIGHTS. 
THERE WAS WEIGHT IN THIS OBSERVATION; BUT THIS POWER OF THE JUDGES DID
NOT GO FAR ENOUGH.  LAWS MAY BE UNJUST, MAY BE UNWISE, MAY BE
DANGEROUS, MAY BE DESTRUCTIVE; AND YET NOT BE SO UNCONSTITUTIONAL AS TO
JUSTIFY THE JUDGES IN REFUSING TO GIVE THEM EFFECT.  LET THEM HAVE A
SHARE IN THE REVISIONARY POWER, AND THEY WILL HAVE AN OPPORTUNITY OF
TAKING NOTICE OF THESE CHARACTERS OF A LAW, AND OF COUNTERACTING, BY
THE WEIGHT OF THEIR OPINIONS THE IMPROPER VIEW OF THE LEGISLATURE."  2
ID., AT 73. 

NATHANIEL GORHAM OF MASSACHUSETTS "DID NOT SEE THE ADVANTAGE OF
EMPLOYING THE JUDGES IN THIS WAY.  AS JUDGES THEY ARE NOT TO BE
PRESUMED TO POSSESS ANY PECULIAR KNOWLEDGE OF THE MERE POLICY OF PUBLIC
MEASURES."  IBID. 

ELBRIDGE GERRY OF MASSACHUSETTS LIKEWISE OPPOSED THE PROPOSAL FOR A
COUNCIL OF REVISION: 

"  ... HE RELIED FOR HIS PART ON THE REPRESENTATIVES OF THE PEOPLE AS
THE GUARDIANS OF THEIR RIGHTS & INTERESTS.  IT (THE PROPOSAL) WAS
MAKING THE EXPOSITORS OF THE LAWS, THE LEGISLATORS WHICH OUGHT NEVER TO
BE DONE."  ID., AT 75. 

AND AT ANOTHER POINT: 

"MR. GERRY DOUBTS WHETHER THE JUDICIARY OUGHT TO FORM A PART OF IT
(THE PROPOSED COUNCIL OF REVISION), AS THEY WILL HAVE A SUFFICIENT
CHECK AGST.  ENCROACHMENTS ON THEIR OWN DEPARTMENT BY THEIR EXPOSITION
OF THE LAWS, WHICH INVOLVED A POWER OF DECIDING ON THEIR
CONSTITUTIONALITY 

...  .  IT WAS QUITE FOREIGN FROM THE NATURE OF YE. OFFICE TO MAKE
THEM JUDGES OF THE POLICY OF PUBLIC MEASURES."  1 ID., AT 97-98. 

MADISON SUPPORTED THE PROPOSAL ON THE GROUND THAT "A CHECK ON THE
LEGISLATURE IS NECESSARY."  ID., AT 108.  JOHN DICKINSON OF DELAWARE
OPPOSED IT ON THE GROUND THAT "THE JUDGES MUST INTERPRET THE LAWS THEY
OUGHT NOT TO BE LEGISLATORS."  IBID.  THE PROPOSAL FOR A COUNCIL OF
REVISION WAS DEFEATED. 

THE FOLLOWING PROPOSAL WAS ALSO ADVANCED: 

"TO ASSIST THE PRESIDENT IN CONDUCTING THE PUBLIC AFFAIRS THERE SHALL
BE A COUNCIL OF STATE COMPOSED OF THE FOLLOWING OFFICERS - 1.  THE
CHIEF JUSTICE OF THE SUPREME COURT, WHO SHALL FROM TIME TO TIME
RECOMMEND SUCH ALTERATIONS OF AND ADDITIONS TO THE LAWS OF THE U.S. AS
MAY IN HIS OPINION BE NECESSARY TO THE DUE ADMINISTRATION OF JUSTICE,
AND SUCH AS MAY PROMOTE USEFUL LEARNING AND INCULCATE SOUND MORALITY
THROUGHOUT THE UNION  ...  ."  2 ID., AT 342.  THIS PROPOSAL TOO WAS
REJECTED. 

FN7  IN MEYER, IN THE VERY SAME SENTENCE QUOTED IN PART BY MY
BRETHREN IN WHICH HE ASSERTED THAT THE DUE PROCESS CLAUSE GAVE AN
ABSTRACT AND INVIOLABLE RIGHT "TO MARRY, ESTABLISH A HOME AND BRING UP
CHILDREN," MR. JUSTICE MCREYNOLDS ALSO ASSERTED THE HERETOFORE
DISCREDITED DOCTRINE THAT THE DUE PROCESS CLAUSE PREVENTED STATES FROM
INTERFERING WITH "THE RIGHT OF THE INDIVIDUAL TO CONTRACT."  262 U.S.,
AT 399. 

FN8  COMPARE POE V. ULLMAN, 367 U.S., AT 543-544 (HARLAN, J.,
DISSENTING). 

FN9  THE COURT HAS ALSO SAID THAT IN VIEW OF THE FOURTEENTH
AMENDMENT'S MAJOR PURPOSE OF ELIMINATING STATE-ENFORCED RACIAL
DISCRIMINATION, THIS COURT WILL SCRUTINIZE CAREFULLY ANY LAW EMBODYING
A RACIAL CLASSIFICATION TO MAKE SURE THAT IT DOES NOT DENY EQUAL
PROTECTION OF THE LAWS.  SEE MCLAUGHLIN V. FLORIDA, 379 U.S. 184. 

FN10  NONE OF THE OTHER CASES DECIDED IN THE PAST 25 YEARS WHICH
BROTHERS WHITE AND GOLDBERG CITE CAN JUSTLY BE READ AS HOLDING THAT
JUDGES HAVE POWER TO USE A NATURAL LAW DUE PROCESS FORMULA TO STRIKE
DOWN ALL STATE LAWS WHICH THEY THINK ARE UNWISE, DANGEROUS, OR
IRRATIONAL.  PRINCE V. MASSACHUSETTS, 321 U.S. 158, UPHELD A STATE LAW
FORBIDDING MINORS FROM SELLING PUBLICATIONS ON THE STREETS.  KENT V.
DULLES, 357 U.S. 116, RECOGNIZED THE POWER OF CONGRESS TO RESTRICT
TRAVEL OUTSIDE THE COUNTRY SO LONG AS IT ACCORDED PERSONS THE
PROCEDURAL SAFEGUARDS OF DUE PROCESS AND DID NOT VIOLATE ANY OTHER
SPECIFIC CONSTITUTIONAL PROVISION.  SCHWARE V. BOARD OF BAR EXAMINERS,
353 U.S. 232, HELD SIMPLY THAT A STATE COULD NOT, CONSISTENTLY WITH DUE
PROCESS, REFUSE A LAWYER A LICENSE TO PRACTICE LAW ON THE BASIS OF A
FINDING THAT HE WAS MORALLY UNFIT WHEN THERE WAS NO EVIDENCE IN THE
RECORD, 353 U.S., AT 246-247, TO SUPPORT SUCH A FINDING.  COMPARE
THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 497, MERELY RECOGNIZED WHAT
HAD BEEN THE UNDERSTANDING FROM THE BEGINNING OF THE COUNTRY, AN
UNDERSTANDING SHARED BY MANY OF THE DRAFTSMEN OF THE FOURTEENTH
AMENDMENT, THAT THE WHOLE BILL OF RIGHTS, INCLUDING THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT, WAS A GUARANTEE THAT ALL PERSONS WOULD
RECEIVE EQUAL TREATMENT UNDER THE LAW.  COMPARE CHAMBERS V. FLORIDA,
309 U.S. 227, 240-241.  WITH ONE EXCEPTION, THE OTHER MODERN CASES
RELIED ON BY MY BRETHREN WERE DECIDED EITHER SOLELY UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OR UNDER THE FIRST
AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH, SOME OF THE
LATTER GROUP INVOLVING THE RIGHT OF ASSOCIATION WHICH THIS COURT HAS
HELD TO BE A PART OF THE RIGHTS OF SPEECH, PRESS AND ASSEMBLY
GUARANTEED BY THE FIRST AMENDMENT.  AS FOR APTHEKER V. SECRETARY OF
STATE, 378 U.S. 500, I AM COMPELLED TO SAY THAT IF THAT DECISION WAS
WRITTEN OR INTENDED TO BRING ABOUT THE ABRUPT AND DRASTIC REVERSAL IN
THE COURSE OF CONSTITUTIONAL ADJUDICATION WHICH IS NOW ATTRIBUTED TO
IT, THE CHANGE WAS CERTAINLY MADE IN A VERY QUIET AND UNPROVOCATIVE
MANNER, WITHOUT ANY ATTEMPT TO JUSTIFY IT. 

FN11  COMPARE ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525, 568
(HOLMES, J., DISSENTING): 

"THE EARLIER DECISIONS UPON THE SAME WORDS (THE DUE PROCESS CLAUSE)
IN THE FOURTEENTH AMENDMENT BEGAN WITHIN OUR MEMORY AND WENT NO FARTHER
THAN AN UNPRETENTIOUS ASSERTION OF THE LIBERTY TO FOLLOW THE ORDINARY
CALLINGS.  LATER THAT INNOCUOUS GENERALITY WAS EXPANDED INTO THE DOGMA,
LIBERTY OF CONTRACT.  CONTRACT IS NOT SPECIFICALLY MENTIONED IN THE
TEXT THAT WE HAVE TO CONSTRUE.  IT IS MERELY AN EXAMPLE OF DOING WHAT
YOU WANT TO DO, EMBODIED IN THE WORD LIBERTY.  BUT PRETTY MUCH ALL LAW
CONSISTS IN FORBIDDING MEN TO DO SOME THINGS THAT THEY WANT TO DO, AND
CONTRACT IS NO MORE EXEMPT FROM LAW THAN OTHER ACTS." 

FN12  SEE PATTERSON, THE FORGOTTEN NINTH AMENDMENT (1955).  MR.
PATTERSON URGES THAT THE NINTH AMENDMENT BE USED TO PROTECT UNSPECIFIED
"NATURAL AND INALIENABLE RIGHTS."  P. 4.  THE INTRODUCTION BY ROSCOE
POUND STATES THAT "THERE IS A MARKED REVIVAL OF NATURAL LAW IDEAS
THROUGHOUT THE WORLD.  INTEREST IN THE NINTH AMENDMENT IS A SYMPTOM OF
THAT REVIVAL."  P. III. 

IN REDLICH, ARE THERE "CERTAIN RIGHTS ...  RETAINED BY THE PEOPLE"?,
37 N.Y.U.L. REV. 787, PROFESSOR REDLICH, IN ADVOCATING RELIANCE ON THE
NINTH AND TENTH AMENDMENTS TO INVALIDATE THE CONNECTICUT LAW BEFORE US,
FRANKLY STATES: 

"BUT FOR ONE WHO FEELS THAT THE MARRIAGE RELATIONSHIP SHOULD BE
BEYOND THE REACH OF A STATE LAW FORBIDDING THE USE OF CONTRACEPTIVES,
THE BIRTH CONTROL CASE POSES A TROUBLESOME AND CHALLENGING PROBLEM OF
CONSTITUTIONAL INTERPRETATION,  HE MAY FIND HIMSELF SAYING, 'THE LAW IS
UNCONSTITUTIONAL - BUT WHY?'  THERE ARE TWO POSSIBLE PATHS TO TRAVEL IN
FINDING THE ANSWER.  ONE IS TO REVERT TO A FRANKLY FLEXIBLE DUE PROCESS
CONCEPT EVEN ON MATTERS THAT DO NOT INVOLVE SPECIFIC CONSTITUTIONAL
FRAMEWORK WITHIN WHICH TO MEET THIS AND SIMILAR PROBLEMS WHICH ARE
LIKELY TO ARISE."  ID., AT 798. 

FN13  OF COURSE ONE CANNOT BE OBLIVIOUS TO THE FACT THAT MR. GALLUP
HAS ALREADY PUBLISHED THE RESULTS OF A POLL WHICH HE SAYS SHOW THAT 46%
OF THE PEOPLE IN THIS COUNTRY BELIEVE SCHOOLS SHOULD TEACH ABOUT BIRTH
CONTROL.  WASHINGTON POST, MAY 21, 1965, P. 2, COL. 1.  I CAN HARDLY
BELIEVE, HOWEVER, THAT BROTHER GOLDBERG WOULD VIEW 46% OF THE PERSONS
POLLED AS SO OVERWHELMING A PROPORTION THAT THIS COURT MAY NOW RELY ON
IT TO DECLARE THAT THE CONNECTICUT LAW INFRINGES "FUNDAMENTAL" RIGHTS,
AND OVERRULE THE LONG-STANDING VIEW OF THE PEOPLE OF CONNECTICUT
EXPRESSED THROUGH THEIR ELECTED REPRESENTATIVES. 

FN14  U.S. CONST., AMEND. IX, PROVIDES: 

"THE ENUMERATION IN THE CONSTITUTION, OF CERTAIN RIGHTS, SHALL NOT BE
CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE." 

FN15  I ANNALS OF CONGRESS 439.  SEE ALSO II STORY, COMMENTARIES ON
THE CONSTITUTION OF THE UNITED STATES (5TH ED. 1891):  "THIS CLAUSE WAS
MANIFESTLY INTRODUCED TO PREVENT ANY PERVERSE OR INGENIOUS
MISAPPLICATION OF THE WELL-KNOWN MAXIM, THAT AN AFFIRMATION IN
PARTICULAR CASES IMPLIES A NEGATION IN ALL OTHERS; AND, E CONVERSO,
THAT A NEGATION IN PARTICULAR CASES IMPLIES AN AFFIRMATION IN ALL
OTHERS.  THE MAXIM, RIGHTLY UNDERSTOOD, IS PERFECTLY SOUND AND SAFE;
BUT IT HAS OFTEN BEEN STRANGELY FORCED FROM ITS NATURAL MEANING INTO
THE SUPPORT OF THE MOST DANGEROUS POLITICAL HERESIES."  ID., AT 651
(FOOTNOTE OMITTED). 

FN16  JUSTICE HOLMES IN ONE OF HIS LAST DISSENTS, WRITTEN IN REPLY TO
MR. JUSTICE MCREYNOLDS' OPINION FOR THE COURT IN BALDWIN V. MISSOURI,
281 U.S. 586, SOLEMNLY WARNED AGAINST A DUE PROCESS FORMULA APPARENTLY
APPROVED BY MY CONCURRING BRETHREN TODAY.  HE SAID: 

"I HAVE NOT YET ADEQUATELY EXPRESSED THE MORE THAN ANXIETY THAT I
FEEL AT THE EVER INCREASING SCOPE GIVEN TO THE FOURTEENTH AMENDMENT IN
CUTTING DOWN WHAT I BELIEVE TO BE THE CONSTITUTIONAL RIGHTS OF THE
STATES.  AS THE DECISIONS NOW STAND, I SEE HARDLY ANY LIMIT BUT THE SKY
TO THE INVALIDATING OF THOSE RIGHTS IF THEY HAPPEN TO STRIKE A MAJORITY
OF THIS COURT AS FOR ANY REASON UNDESIRABLE.  I CANNOT BELIEVE THAT THE
AMENDMENT WAS INTENDED TO GIVE US CARTE BLANCHE TO EMBODY OUR ECONOMIC
OR MORAL BELIEFS IN ITS PROHIBITIONS.  YET I CAN THINK OF NO NARROWER
REASON THAT SEEMS TO ME TO JUSTIFY THE PRESENT AND THE EARLIER
DECISIONS TO WHICH I HAVE REFERRED.  OF COURSE THE WORDS 'DUE PROCESS
OF LAW,' IF TAKEN IN THEIR LITERAL MEANING, HAVE NO APPLICATION TO THIS
CASE; AND WHILE IT IS TOO LATE TO DENY THAT THEY HAVE BEEN GIVEN A MUCH
MORE EXTENDED AND ARTIFICIAL SIGNIFICATION, STILL WE OUGHT TO REMEMBER
THE GREAT CAUTION SHOWN BY THE CONSTITUTION IN LIMITING THE POWER OF
THE STATES, AND SHOULD BE SLOW TO CONSTRUE THE CLAUSE IN THE FOURTEENTH
AMENDMENT AS COMMITTING TO THE COURT, WITH NO GUIDE BUT THE COURT'S OWN
DISCRETION, THE VALIDITY OF WHATEVER LAWS THE STATES MAY PASS."  281
U.S., AT 595.  SEE 2 HOLMES-POLLOCK LETTERS (HOWE ED. 1941) 267-268. 

FN17  E.G., IN DAY-BRITE LIGHTING, INC. V. MISSOURI, 342 U.S. 421,
423, THIS COURT HELD THAT "OUR RECENT DECISIONS MAKE PLAIN THAT WE DO
NOT SIT AS A SUPERLEGISLATURE TO WEIGH THE WISDOM OF LEGISLATION NOR TO
DECIDE WHETHER THE POLICY WHICH IT EXPRESSES OFFENDS THE PUBLIC
WELFARE." 

COMPARE GARDNER V. MASSACHUSETTS, 305 U.S. 559, WHICH THE COURT TODAY
APPARENTLY OVERRULES, WHICH HELD THAT A CHALLENGE UNDER THE FEDERAL
CONSTITUTION TO A STATE LAW FORBIDDING THE SALE OR FURNISHING OF
CONTRACEPTIVES DID NOT RAISE A SUBSTANTIAL FEDERAL QUESTION. 

FN18  BROTHER HARLAN, WHO HAS CONSISTENTLY STATED HIS BELIEF IN THE
POWER OF COURTS TO STRIKE DOWN LAWS WHICH THEY CONSIDER ARBITRARY OR
UNREASONABLE, SEE, E.G., POE V. ULLMAN, 367 U.S. 497, 539-555
(DISSENTING OPINION), DID NOT JOIN THE COURT'S OPINION IN FERGUSON V.
SKRUPA. 

FN19  JUSTICE HOLMES, DISSENTING IN TYSON, SAID: 

"I THINK THE PROPER COURSE IS TO RECOGNIZE THAT A STATE LEGISLATURE
CAN DO WHATEVER IT SEES FIT TO DO UNLESS IT IS RESTRAINED BY SOME
EXPRESS PROHIBITION IN THE CONSTITUTION OF THE UNITED STATES OR OF THE
STATE, AND THAT COURTS SHOULD BE CAREFUL NOT TO EXTEND SUCH
PROHIBITIONS BEYOND THEIR OBVIOUS MEANING BY READING INTO THEM
CONCEPTIONS OF PUBLIC POLICY THAT THE PARTICULAR COURT MAY HAPPEN TO
ENTERTAIN."  273 U.S., AT 446. 

FN20  COMPARE NICCHIA V. NEW YORK, 254 U.S. 228, 231, UPHOLDING A NEW
YORK DOG-LICENSING STATUTE ON THE GROUND THAT IT DID NOT "DEPRIVE DOG
OWNERS OF LIBERTY WITHOUT DUE PROCESS OF LAW."  AND AS I SAID
CONCURRING IN ROCHIN V. CALIFORNIA, 342 U.S. 165, 175, "I BELIEVE THAT
FAITHFUL ADHERENCE TO THE SPECIFIC GUARANTEES IN THE BILL OF RIGHTS
INSURES A MORE PERMANENT PROTECTION OF INDIVIDUAL LIBERTY THAN THAT
WHICH CAN BE AFFORDED BY THE NEBULOUS STANDARDS" URGED BY MY CONCURRING
BRETHREN TODAY. 

FN21  GIDEON V. WAINWRIGHT, 372 U.S. 335, AND SIMILAR CASES APPLYING
SPECIFIC BILL OF RIGHTS PROVISIONS TO THE STATES DO NOT IN MY VIEW
STAND FOR THE PROPOSITION THAT THIS COURT CAN RELY ON ITS OWN CONCEPT
OF "ORDERED LIBERTY" OR "SHOCKING THE CONSCIENCE" OR NATURAL LAW TO
DECIDE WHAT LAWS IT WILL PERMIT STATE LEGISLATURES TO ENACT.  GIDEON IN
APPLYING TO STATE PROSECUTIONS THE SIXTH AMENDMENT'S GUARANTEE OF RIGHT
TO COUNSEL FOLLOWED PALKO V. CONNECTICUT, 302 U.S. 319, WHICH HAD HELD
THAT SPECIFIC PROVISIONS OF THE BILL OF RIGHTS, RATHER THAN THE BILL OF
RIGHTS AS A WHOLE, WOULD BE SELECTIVELY APPLIED TO THE STATES.  WHILE
EXPRESSING MY OWN BELIEF (NOT SHARED BY MR. JUSTICE STEWART) THAT ALL
THE PROVISIONS OF THE BILL OF RIGHTS WERE MADE APPLICABLE TO THE STATES
BY THE FOURTEENTH AMENDMENT, IN MY DISSENT IN ADAMSON V. CALIFORNIA,
332 U.S. 46, 89, I ALSO SAID:    "IF THE CHOICE MUST BE BETWEEN THE
SELECTIVE PROCESS OF THE PALKO DECISION APPLYING SOME OF THE BILL OF
RIGHTS TO THE STATES, OR THE TWINING RULE APPLYING NONE OF THEM, I
WOULD CHOOSE THE PALKO SELECTIVE PROCESS." 

GIDEON AND SIMILAR CASES MERELY FOLLOWED THE PALKO RULE, WHICH IN
ADAMSON I AGREED TO FOLLOW IF NECESSARY TO MAKE BILL OF RIGHTS
SAFEGUARDS APPLICABLE TO THE STATES.  SEE ALSO POINTER V. TEXAS, 380
U.S. 400; MALLOY V. HOGAN, 378 U.S. 1. 

FN22  HAND, THE BILL OF RIGHTS (1958) 70.  SEE NOTE 5, SUPRA.  SEE
GENERALLY ID., AT 35-45. 

FN23  ID., AT 73.  WHILE JUDGE HAND CONDEMNED AS UNJUSTIFIED THE
INVALIDATION OF STATE LAWS UNDER THE NATURAL LAW DUE PROCESS FORMULA,
SEE ID., AT 35-45, HE ALSO EXPRESSED THE VIEW THAT THIS COURT IN A
NUMBER OF CASES HAD GONE TOO FAR IN HOLDING LEGISLATION TO BE IN
VIOLATION OF SPECIFIC GUARANTEES OF THE BILL OF RIGHTS.  ALTHOUGH I
AGREE WITH HIS CRITICISM OF USE OF THE DUE PROCESS FORMULA, I DO NOT
AGREE WITH ALL THE VIEWS HE EXPRESSED ABOUT CONSTRUING THE SPECIFIC
GUARANTEES OF THE BILL OF RIGHTS. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

SINCE 1879 CONNECTICUT HAS HAD ON ITS BOOKS A LAW WHICH FORBIDS THE
USE OF CONTRACEPTIVES BY ANYONE.  I THINK THIS IS AN UNCOMMONLY SILLY
LAW.  AS A PRACTICAL MATTER, THE LAW IS OBVIOUSLY UNENFORCEABLE, EXCEPT
IN THE OBLIQUE CONTEXT OF THE PRESENT CASE.  AS A PHILOSOPHICAL MATTER,
I BELIEVE THE USE OF CONTRACEPTIVES IN THE RELATIONSHIP OF MARRIAGE
SHOULD BE LEFT TO PERSONAL AND PRIVATE CHOICE, BASED UPON EACH
INDIVIDUAL'S MORAL, ETHICAL, AND RELIGIOUS BELIEFS.  AS A MATTER OF
SOCIAL POLICY, I THINK PROFESSIONAL COUNSEL ABOUT METHODS OF BIRTH
CONTROL SHOULD BE AVAILABLE TO ALL, SO THAT EACH INDIVIDUAL'S CHOICE
CAN BE MEANINGFULLY MADE.  BUT WE ARE NOT ASKED IN THIS CASE TO SAY
WHETHER WE THINK THIS LAW IS UNWISE, OR EVEN ASININE.  WE ARE ASKED TO
HOLD THAT IT VIOLATES THE UNITED STATES CONSTITUTION.  AND THAT I
CANNOT DO. 

IN THE COURSE OF ITS OPINION THE COURT REFERS TO NO LESS THAN SIX
AMENDMENTS TO THE CONSTITUTION: THE FIRST, THE THIRD, THE FOURTH, THE
FIFTH, THE NINTH, AND THE FOURTEENTH.  BUT THE COURT DOES NOT SAY WHICH
OF THESE AMENDMENTS, IF ANY, IT THINKS IS INFRINGED BY THIS CONNECTICUT
LAW. 

WE ARE TOLD THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
IS NOT, AS SUCH, THE "GUIDE" IN THIS CASE.  WITH THAT MUCH I AGREE. 
THERE IS NO CLAIM THAT THIS LAW, DULY ENACTED BY THE CONNECTICUT
LEGISLATURE, IS UNCONSTITUTIONALLY VAGUE.  THERE IS NO CLAIM THAT THE
APPELLANTS WERE DENIED ANY OF THE ELEMENTS OF PROCEDURAL DUE PROCESS AT
THEIR TRIAL, SO AS TO MAKE THEIR CONVICTIONS CONSTITUTIONALLY INVALID. 
AND, AS THE COURT SAYS, THE DAY HAS LONG PASSED SINCE THE DUE PROCESS
CLAUSE WAS REGARDED AS A PROPER INSTRUMENT FOR DETERMINING "THE WISDOM,
NEED, AND PROPRIETY" OF STATE LAWS.  COMPARE LOCHNER V. NEW YORK, 198
U.S. 45, WITH FERGUSON V. SKRUPA, 372 U.S. 726.  MY BROTHERS HARLAN AND
WHITE TO THE CONTRARY, "WE HAVE RETURNED TO THE ORIGINAL CONSTITUTIONAL
PROPOSITION THAT COURTS DO NOT SUBSTITUTE THEIR SOCIAL AND ECONOMIC
BELIEFS FOR THE JUDGMENT OF LEGISLATIVE BODIES, WHO ARE ELECTED TO PASS
LAWS."  FERGUSON V. SKRUPA, SUPRA, AT 730. 

AS TO THE FIRST, THIRD, FOURTH, AND FIFTH AMENDMENTS, I CAN FIND
NOTHING IN ANY OF THEM TO INVALIDATE THIS CONNECTICUT LAW, EVEN
ASSUMING THAT ALL THOSE AMENDMENTS ARE FULLY APPLICABLE AGAINST THE
STATES.  (FN1)  IT HAS NOT EVEN BEEN ARGUED THAT THIS IS A LAW
"RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF."  (FN2)  AND SURELY, UNLESS THE SOLEMN PROCESS OF
CONSTITUTIONAL ADJUDICATION IS TO DESCEND TO THE LEVEL OF A PLAY ON
WORDS, THERE IS NOT INVOLVED HERE ANY ABRIDGMENT OF "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." 
(FN3) NO SOLDIER HAS BEEN QUARTERED IN ANY HOUSE.  (FN4)  THERE HAS
BEEN NO SEARCH, AND NO SEIZURE.  (FN5)  NOBODY HAS BEEN COMPELLED TO BE
A WITNESS AGAINST HIMSELF.  (FN6) 

THE COURT ALSO QUOTES THE NINTH AMENDMENT, AND MY BROTHER GOLDBERG'S
CONCURRING OPINION RELIES HEAVILY UPON IT.  BUT TO SAY THAT THE NINTH
AMENDMENT HAS ANYTHING TO DO WITH THIS CASE IS TO TURN SOMERSAULTS WITH
HISTORY.  THE NINTH AMENDMENT, LIKE ITS COMPANION THE TENTH, WHICH THIS
COURT HELD "STATES BUT A TRUISM THAT ALL IS RETAINED WHICH HAS NOT BEEN
SURRENDERED," UNITED STATES V. DARBY, 312 U.S. 100, 124, WAS FRAMED BY
JAMES MADISON AND ADOPTED BY THE STATES SIMPLY TO MAKE CLEAR THAT THE
ADOPTION OF THE BILL OF RIGHTS DID NOT ALTER THE PLAN THAT THE FEDERAL
GOVERNMENT WAS TO BE A GOVERNMENT OF EXPRESS AND LIMITED POWERS, AND
THAT ALL RIGHTS AND POWERS NOT DELEGATED TO IT WERE RETAINED BY THE
PEOPLE AND THE INDIVIDUAL STATES.  UNTIL TODAY NO MEMBER OF THIS COURT
HAS EVER SUGGESTED THAT THE NINTH AMENDMENT MEANT ANYTHING ELSE, AND
THE IDEA THAT A FEDERAL COURT COULD EVER USE THE NINTH AMENDMENT TO
ANNUL A LAW PASSED BY THE ELECTED REPRESENTATIVES OF THE PEOPLE OF THE
STATE OF CONNECTICUT WOULD HAVE CAUSED JAMES MADISON NO LITTLE WONDER. 

WHAT PROVISION OF THE CONSTITUTION, THEN, DOES MAKE THIS STATE LAW
INVALID?  THE COURT SAYS IT IS THE RIGHT OF PRIVACY "CREATED BY SEVERAL
FUNDAMENTAL CONSTITUTIONAL GUARANTEES."  WITH ALL DEFERENCE, I CAN FIND
NO SUCH GENERAL RIGHT OF PRIVACY IN THE BILL OF RIGHTS, IN ANY OTHER
PART OF THE CONSTITUTION, OR IN ANY CASE EVER BEFORE DECIDED BY THIS
COURT.  (FN7) 

AT THE ORAL ARGUMENT IN THIS CASE WE WERE TOLD THAT THE CONNECTICUT
LAW DOES NOT "CONFORM TO CURRENT COMMUNITY STANDARDS."  BUT IT IS NOT
THE FUNCTION OF THIS COURT TO DECIDE CASES ON THE BASIS OF COMMUNITY
STANDARDS.  WE ARE HERE TO DECIDE CASES "AGREEABLY TO THE CONSTITUTION
AND LAWS OF THE UNITED STATES."  IT IS THE ESSENCE OF JUDICIAL DUTY TO
SUBORDINATE OUR OWN PERSONAL VIEWS, OUR OWN IDEAS OF WHAT LEGISLATION
IS WISE AND WHAT IS NOT.  IF, AS I SHOULD SURELY HOPE, THE LAW BEFORE
US DOES NOT REFLECT THE STANDARDS OF THE PEOPLE OF CONNECTICUT, THE
PEOPLE OF CONNECTICUT CAN FREELY EXERCISE THEIR TRUE NINTH AND TENTH
AMENDMENT RIGHTS TO PERSUADE THEIR ELECTED REPRESENTATIVES TO REPEAL
IT.  THAT IS THE CONSTITUTIONAL WAY TO TAKE THIS LAW OFF THE BOOKS. 
(FN9) 

FN1  THE AMENDMENTS IN QUESTION WERE, AS EVERYONE KNOWS, ORIGINALLY
ADOPTED AS LIMITATIONS UPON THE POWER OF THE NEWLY CREATED FEDERAL
GOVERNMENT, NOT AS LIMITATIONS UPON THE POWERS OF THE INDIVIDUAL
STATES.  BUT THE COURT HAS HELD THAT MANY OF THE PROVISIONS OF THE
FIRST EIGHT AMENDMENTS ARE FULLY EMBRACED BY THE FOURTEENTH AMENDMENT
AS LIMITATIONS UPON STATE ACTION, AND SOME MEMBERS OF THE COURT HAVE
HELD THE VIEW THAT THE ADOPTION OF THE FOURTEENTH AMENDMENT MADE EVERY
PROVISION OF THE FIRST EIGHT AMENDMENTS FULLY APPLICABLE AGAINST THE
STATES.  SEE ADAMSON V. CALIFORNIA, 332 U.S. 46, 68 (DISSENTING OPINION
OF MR. JUSTICE BLACK). 

FN2  U.S. CONSTITUTION, AMENDMENT I. TO BE SURE, THE INJUNCTION
CONTAINED IN THE CONNECTICUT STATUTE COINCIDES WITH THE DOCTRINE OF
CERTAIN RELIGIOUS FAITHS.  BUT IF THAT WERE ENOUGH TO INVALIDATE A LAW
UNDER THE PROVISIONS OF THE FIRST AMENDMENT RELATING TO RELIGION, THEN
MOST CRIMINAL LAWS WOULD BE INVALIDATED.  SEE, E.G., THE TEN
COMMANDMENTS.  THE BIBLE, EXODUS 20:2-17 (KING JAMES). 

FN3  U.S. CONSTITUTION, AMENDMENT I. IF ALL THE APPELLANTS HAD DONE
WAS TO ADVISE PEOPLE THAT THEY THOUGHT THE USE OF CONTRACEPTIVES WAS
DESIRABLE, OR EVEN TO COUNSEL THEIR USE, THE APPELLANTS WOULD, OF
COURSE, HAVE A SUBSTANTIAL FIRST AMENDMENT CLAIM.  BUT THEIR ACTIVITIES
WENT FAR BEYOND MERE ADVOCACY.  THEY PRESCRIBED SPECIFIC CONTRACEPTIVE
DEVICES AND FURNISHED PATIENTS WITH THE PRESCRIBED CONTRACEPTIVE
MATERIALS. 

FN4  U.S. CONSTITUTION, AMENDMENT III. 

FN5  U.S. CONSTITUTION, AMENDMENT IV. 

FN6  U.S. CONSTITUTION, AMENDMENT V. 

FN7  CASES LIKE SHELTON V. TUCKER, 364 U.S. 479 AND BATES V. LITTLE
ROCK, 361 U.S. 516, RELIED UPON THE CONCURRING OPINIONS TODAY, DEALT
WITH TRUE FIRST AMENDMENT RIGHTS OF ASSOCIATION AND ARE WHOLLY
INAPPOSITE HERE.  SEE ALSO, E.G., NAACP V. ALABAMA, 357 U.S. 449;
EDWARDS V. SOUTH CAROLINA, 372 U.S. 229.  OUR DECISION IN MCLAUGHLIN V.
FLORIDA, 379 U.S. 184, IS EQUALLY FAR AFIELD.  THAT CASE HELD INVALID
UNDER THE EQUAL PROTECTION CLAUSE, A STATE CRIMINAL LAW WHICH
DISCRIMINATED AGAINST NEGROES. 

THE COURT DOES NOT SAY HOW FAR THE NEW CONSTITUTIONAL RIGHT OF
PRIVACY ANNOUNCED TODAY EXTENDS.  SEE, E.G., MUELLER, LEGAL REGULATION
OF SEXUAL CONDUCT, AT 127; PLOSCOWE, SEX AND THE LAW, AT 189.  I
SUPPOSE, HOWEVER, THAT EVEN AFTER TODAY A STATE CAN CONSTITUTIONALLY
STILL PUNISH AT LEAST SOME OFFENSES WHICH ARE NOT COMMITTED IN PUBLIC. 

FN8  SEE REYNOLDS V. SIMS, 377 U.S. 533, 562.  THE CONNECTICUT HOUSE
OF REPRESENTATIVES RECENTLY PASSED A BILL (HOUSE BILL NO. 2462)
REPEALING THE BIRTH CONTROL LAW.  THE STATE SENATE HAS APPARENTLY NOT
YET ACTED ON THE MEASURE, AND TODAY IS RELIEVED OF THAT RESPONSIBILITY
BY THE COURT.  NEW HAVEN JOURNAL-COURIER, WED., MAY 19, 1965, P. 1,
COL. 4, AND P. 13, COL. 7. 
..END :








ESTES V. TEXAS 381 U.S. 532 


NO. 256.  ARGUED APRIL 1, 1965 - DECIDED JUNE 7, 1965 - REVERSED. 


PETITIONER HAD BEEN INDICTED BY A TEXAS COUNTY GRAND JURY FOR
SWINDLING.  MASSIVE PRETRIAL PUBLICITY HAD GIVEN THE CASE NATIONAL
NOTORIETY.  ON THE TRIAL DATE, FOLLOWING A CHANGE OF VENUE, A HEARING
COMMENCED ON PETITIONER'S MOTION TO PREVENT TELECASTING, RADIO
BROADCASTING, AND NEWS PHOTOGRAPHY.  THE HEARING, CONDUCTED IN THE
PRESENCE OF SOME TRIAL WITNESSES AND VENIREMEN LATER RELEASED, WAS
CARRIED LIVE ON TELEVISION AND RADIO, AND NEWS PHOTOGRAPHY WAS
PERMITTED.  THE ORIGINAL JURY PANEL, PETITIONER, COUNSEL, AND THE TRIAL
JUDGE WERE HIGHLY PUBLICIZED DURING THE TWO DAYS THE PRETRIAL HEARING
LASTED, EMPHASIZING THROUGHOUT THE COMMUNITY THE NOTORIOUS CHARACTER
THAT THE TRIAL WOULD TAKE.  FOUR OF THE JURORS SELECTED LATER AT THE
TRIAL HAD SEEN OR HEARD ALL OR PART OF THE BROADCASTS.  THE PROFUSION
OF CAMERAMEN WITH THEIR EQUIPMENT IN VARIOUS PARTS OF THE CROWDED
COURTROOM CAUSED CONSIDERABLE DISRUPTION.  THE TRIAL COURT DENIED
PETITIONER'S MOTION BUT GRANTED A CONTINUANCE OF ALMOST A MONTH. 
DURING THE INTERIM A BOOTH WAS ERECTED IN THE REAR OF THE COURTROOM TO
WHICH TELEVISION CAMERAMEN AND EQUIPMENT WERE RESTRICTED.  LIVE
TELECASTING WAS PROHIBITED DURING MOST OF THE ACTUAL TRIAL.  THE
STATE'S OPENING AND CLOSING ARGUMENTS WERE CARRIED LIVE WITH SOUND
(THOUGH BECAUSE OF MECHANICAL DIFFICULTY THERE WAS NO PICTURE OF THE
FORMER), AS WERE THE RETURN OF THE JURY'S VERDICT AND ITS RECEIPT BY
THE JUDGE.  THE COURT'S ORDER ALLOWED VIDEOTAPES WITHOUT SOUND OF THE
WHOLE PROCEEDING AND THE CAMERAS OPERATED INTERMITTENTLY DURING THE
THREE-DAY TRIAL, WHICH ENDED WITH PETITIONER'S CONVICTION.  FILM CLIPS
OF THE TRIAL WERE SHOWN LARGELY ON REGULARLY SCHEDULED NEWS PROGRAMS. 
BOTH THE TRIAL COURT AND THE APPELLATE COURT REJECTED PETITIONER'S
CLAIM OF DENIAL OF DUE PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT
BY THE TELEVISING AND BROADCASTING OF THE TRIAL.  HELD: THE TELEVISING
OVER PETITIONER'S OBJECTIONS OF THE COURTROOM PROCEEDINGS OF
PETITIONER'S CRIMINAL TRIAL, IN WHICH THERE WAS WIDESPREAD PUBLIC
INTEREST, WAS INHERENTLY INVALID AS INFRINGING THE FUNDAMENTAL RIGHT TO
A FAIR TRIAL GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 536-552. 

(A) THE HIGH DEGREE OF PUBLICITY GIVEN TO THE TWO-DAY HEARING, WHICH
COULD ONLY HAVE IMPRESSED THOSE PRESENT AND THE COMMUNITY AT LARGE WITH
THE NOTORIOUS CHARACTER OF THE PETITIONER AND THE PROCEEDING, MADE WHAT
OCCURRED AT THE PRETRIAL RELEVANT TO DETERMINING WHETHER PETITIONER WAS
ACCORDED DUE PROCESS AT HIS TRIAL.  PP. 536-537. 

(B)  THE CONSTITUTIONAL GUARANTEE OF A PUBLIC TRIAL IS TO ENSURE THAT
THE ACCUSED IS FAIRLY DEALT WITH AND NOT UNJUSTLY CONDEMNED.  PP. 538
539. 

(C)  THE FREEDOM GRANTED TO THE PRESS UNDER THE FIRST AMENDMENT MUST
BE SUBJECT TO THE MAINTENANCE OF ABSOLUTE FAIRNESS IN THE JUDICIAL
PROCESS; AND IN THE PRESENT STATE OF TELEVISION TECHNIQUES SUCH FREEDOM
DOES NOT CONFER THE RIGHT TO USE EQUIPMENT IN THE COURTROOM WHICH MIGHT
JEOPARDIZE A FAIR TRIAL, THE ATMOSPHERE FOR WHICH MUST BE PRESERVED AT
ALL COSTS.  PP. 539-540. 

(D)  THE PUBLIC'S RIGHT TO BE INFORMED ABOUT COURT PROCEEDINGS IS
SATISFIED IF REPORTERS ARE FREE TO ATTEND AND TO REPORT ON THE
PROCEEDINGS THROUGH THEIR RESPECTIVE MEDIA.  PP. 541-542. 

(E)  WHERE, AS HERE, THE PROCEDURE EMPLOYED BY THE STATE INVOLVES THE
PROBABILITY THAT PREJUDICE TO THE ACCUSED WILL RESULT, THAT PROCEDURE,
IN LINE WITH THE PRINCIPLE ESTABLISHED IN SUCH CASES AS RIDEAU V.
LOUISIANA, 373 U.S. 723, WILL BE DEEMED LACKING IN DUE PROCESS WHETHER
OR NOT ISOLATABLE PREJUDICE CAN BE DEMONSTRATED.  PP. 542-544. 

(F)  THERE ARE NUMEROUS RESPECTS IN WHICH TELEVISING COURT
PROCEEDINGS MAY ALONE, AND IN COMBINATION ALMOST CERTAINLY WILL, CAUSE
UNFAIRNESS, SUCH AS:  (1) IMPROPERLY INFLUENCING JURORS BY EMPHASIZING
THE NOTORIETY OF THE TRIAL AND AFFECTING THEIR IMPARTIAL JUDGMENT,
DISTRACTING THEIR ATTENTION, FACILITATING (IN STATES WHICH DO NOT
SEQUESTER JURORS) THEIR VIEWING OF SELECTED PARTS OF THE PROCEEDINGS,
AND IMPROPERLY INFLUENCING POTENTIAL JURORS AND THUS JEOPARDIZING THE
FAIRNESS OF NEW TRIALS; (2) IMPAIRING THE TESTIMONY OF WITNESSES, AS BY
CAUSING SOME TO BE FRIGHTENED AND OTHERS TO OVERSTATE THEIR TESTIMONY,
AND GENERALLY INFLUENCING THE TESTIMONY OF WITNESSES, THUS FRUSTRATING
INVOCATION OF THE "RULE" AGAINST WITNESSES; (3) DISTRACTING JUDGES
GENERALLY AND EXERCISING AN ADVERSE PSYCHOLOGICAL EFFECT PARTICULARLY
UPON THOSE WHO ARE ELECTED; AND (4) IMPOSING PRESSURES UPON THE
DEFENDANT AND INTRUDING INTO THE CONFIDENTIAL ATTORNEY-CLIENT
RELATIONSHIP.  PP. 544-550. 

(G)  THE FOREGOING FACTORS ARE NOT MERELY "HYPOTHETICAL," AS IS
EVIDENCED BY THE BAR ON TELEVISION IN FEDERAL CRIMINAL TRIALS IMPOSED
BY THE FEDERAL RULES OF CRIMINAL PROCEDURE AND BY SUCH A BAR IN ALL BUT
TWO STATES.  P. 550. 

(H)  APPLICATION OF THE RULE OF THE RIDEAU CASE, SUPRA, IS CLEARLY
WARRANTED BY THE FACTS OF THIS CASE.  PP. 550-552. 

ESTES V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT.* 

*MR. JUSTICE HARLAN CONCURS IN THIS OPINION SUBJECT TO THE
RESERVATIONS AND TO THE EXTENT INDICATED IN HIS CONCURRING OPINION,
POST, P. 587. 

THE QUESTION PRESENTED HERE IS WHETHER THE PETITIONER, WHO STANDS
CONVICTED IN THE DISTRICT COURT FOR THE SEVENTH JUDICIAL DISTRICT OF
TEXAS AT TYLER FOR SWINDLING, (FN1) WAS DEPRIVED OF HIS RIGHT UNDER THE
FOURTEENTH AMENDMENT TO DUE PROCESS BY THE TELEVISING AND BROADCASTING
OF HIS TRIAL.  BOTH THE TRIAL COURT AND THE TEXAS COURT OF CRIMINAL
APPEALS FOUND AGAINST THE PETITIONER.  WE HOLD TO THE CONTRARY AND
REVERSE HIS CONVICTION. 

     I. 

WHILE PETITIONER RECITES HIS CLAIM IN THE FRAMEWORK OF CANON 35 OF
THE JUDICIAL CANONS OF THE AMERICAN BAR ASSOCIATION HE DOES NOT CONTEND
THAT WE SHOULD ENSHRINE CANNON 35 IN THE FOURTEENTH AMENDMENT, BUT ONLY
THAT THE TIME-HONORED PRINCIPLES OF A FAIR TRIAL WERE NOT FOLLOWED IN
HIS CASE AND THAT HE WAS THUS CONVICTED WITHOUT DUE PROCESS OF LAW. 
CANON 35, OF COURSE, HAS OF ITSELF NO BINDING EFFECT ON THE COURTS BUT
MERELY EXPRESSES THE VIEW OF THE ASSOCIATION IN OPPOSITION TO THE
BROADCASTING, TELEVISING AND PHOTOGRAPHING OF COURT PROCEEDINGS. 
LIKEWISE, JUDICIAL CANON 28 OF THE INTEGRATED STATE BAR OF TEXAS, 27
TEX. B.J.  102 (1964), WHICH LEAVES TO THE TRIAL JUDGE'S SOUND
DISCRETION THE TELECASTING AND PHOTOGRAPHING OF COURT PROCEEDINGS, IS
OF ITSELF NOT LAW.  IN SHORT, THE QUESTION HERE IS NOT THE VALIDITY OF
EITHER CANON 35 OF THE AMERICAN BAR ASSOCIATION OR CANON 28 OF THE
STATE BAR OF TEXAS, BUT ONLY WHETHER PETITIONER WAS TRIED IN A MANNER
WHICH COMPORTS WITH THE DUE PROCESS REQUIREMENT OF THE FOURTEENTH
AMENDMENT. 

PETITIONER'S CASE WAS ORIGINALLY CALLED FOR TRIAL ON SEPTEMBER 24,
1962, IN SMITH COUNTY AFTER A CHANGE OF VENUE FROM REEVES COUNTY, SOME
500 MILES WEST.  MASSIVE PRE-TRIAL PUBLICITY TOTALING 11 VOLUMES OF
PRESS CLIPPINGS, WHICH ARE ON FILE WITH THE CLERK, HAD GIVEN IT
NATIONAL NOTORIETY.  ALL AVAILABLE SEATS IN THE COURTROOM WERE TAKEN
AND SOME 30 PERSONS STOOD IN THE AISLES.  HOWEVER, AT THAT TIME A
DEFENSE MOTION TO PREVENT TELECASTING, BROADCASTING BY RADIO AND NEWS
PHOTOGRAPHY AND A DEFENSE MOTION FOR CONTINUANCE WERE PRESENTED, AND
AFTER A TWO-DAY HEARING THE FORMER WAS DENIED AND THE LATTER GRANTED. 

THESE INITIAL HEARINGS WERE CARRIED LIVE BY BOTH RADIO AND
TELEVISION, AND NEWS PHOTOGRAPHY WAS PERMITTED THROUGHOUT.  THE
VIDEOTAPES OF THESE HEARINGS CLEARLY ILLUSTRATE THAT THE PICTURE
PRESENTED WAS NOT ONE OF THAT JUDICIAL SERENITY AND CALM TO WHICH
PETITIONER WAS ENTITLED.  CF. WOOD V. GEORGIA, 370 U.S. 375, 383
(1962); TURNER V. LOUISIANA, 379 U.S. 466, 472 (1965); COX V.
LOUISIANA, 379 U.S. 559, 562 (1965).  INDEED, AT LEAST 12 CAMERAMEN
WERE ENGAGED IN THE COURTROOM THROUGHOUT THE HEARING TAKING MOTION AND
STILL PICTURES AND TELEVISING THE PROCEEDINGS.  CABLES AND WIRES WERE
SNAKED ACROSS THE COURTROOM FLOOR, THREE MICROPHONES WERE ON THE
JUDGE'S BENCH AND OTHERS WERE BEAMED AT THE JURY BOX AND THE COUNSEL
TABLE.  IT IS CONCEDED THAT THE ACTIVITIES OF THE TELEVISION CREWS AND
NEWS PHOTOGRAPHERS LED TO CONSIDERABLE DISRUPTION OF THE HEARINGS. 
MOREOVER, VENIREMEN HAD BEEN SUMMONED AND WERE PRESENT IN THE COURTROOM
DURING THE ENTIRE HEARING BUT WERE LATER RELEASED AFTER PETITIONER'S
MOTION FOR CONTINUANCE HAD BEEN GRANTED.  THE COURT ALSO HAD THE NAMES
OF THE WITNESSES CALLED; SOME ANSWERED BUT THE ABSENCE OF OTHERS LED TO
A CONTINUANCE OF THE CASE UNTIL OCTOBER 22, 1962.  IT IS CONTENDED THAT
THIS TWO-DAY PRETRIAL HEARING CANNOT BE CONSIDERED IN DETERMINING THE
QUESTION BEFORE US.  WE CANNOT AGREE.  PRETRIAL CAN CREATE A MAJOR
PROBLEM FOR THE DEFENDANT IN A CRIMINAL CASE.  INDEED, IT MAY BE MORE
HARMFUL THAN PUBLICITY DURING THE TRIAL FOR IT MAY WELL SET THE
COMMUNITY OPINION AS TO GUILT OR INNOCENCE.  THOUGH THE SEPTEMBER
HEARINGS DEALT WITH MOTIONS TO PROHIBIT TELEVISION COVERAGE AND TO
POSTPONE THE TRIAL, THEY ARE UNQUESTIONABLY RELEVANT TO THE ISSUE
BEFORE US.  ALL OF THIS TWO-DAY AFFAIR WAS HIGHLY PUBLICIZED AND COULD
ONLY HAVE IMPRESSED THOSE PRESENT, AND ALSO THE COMMUNITY AT LARGE,
WITH THE NOTORIOUS CHARACTER OF THE PETITIONER AS WELL AS THE
PROCEEDING.  THE TRIAL WITNESSES PRESENT AT THE HEARING, AS WELL AS THE
ORIGINAL JURY PANEL, WERE UNDOUBTEDLY MADE AWARE OF THE PECULIAR PUBLIC
IMPORTANCE OF THE CASE BY THE PRESS AND TELEVISION COVERAGE BEING
PROVIDED, AND BY THE FACT THAT THEY THEMSELVES WERE TELEVISED LIVE AND
THEIR PICTURES REBROADCAST ON THE EVENING SHOW. 

WHEN THE CASE WAS CALLED FOR TRIAL ON OCTOBER 22 THE SCENE HAD BEEN
ALTERED.  A BOOTH HAD BEEN CONSTRUCTED AT THE BACK OF THE COURTROOM
WHICH WAS PAINTED TO BLEND WITH THE PERMANENT STRUCTURE OF THE ROOM. 
IT HAD AN APERTURE TO ALLOW THE LENS OF THE CAMERAS AN UNRESTRICTED
VIEW OF THE COURTROOM.  ALL TELEVISION CAMERAS AND NEWSREEL
PHOTOGRAPHERS WERE RESTRICTED TO THE AREA OF THE BOOTH WHEN SHOOTING
FILM OR TELECASTING. 

BECAUSE OF CONTINUAL OBJECTION, THE RULES GOVERNING LIVE TELECASTING,
AS WELL AS RADIO AND STILL PHOTOS, WERE CHANGED AS THE EXIGENCIES OF
THE SITUATION SEEMED TO REQUIRE.  AS A RESULT, LIVE TELECASTING WAS
PROHIBITED DURING A GREAT PORTION OF THE ACTUAL TRIAL.  ONLY THE
OPENING (FN2) AND CLOSING ARGUMENTS OF THE STATE, THE RETURN OF THE
JURY'S VERDICT AND ITS RECEIPT BY THE TRIAL JUDGE WERE CARRIED LIVE
WITH SOUND.  ALTHOUGH THE ORDER ALLOWED VIDEOTAPES OF THE ENTIRE
PROCEEDING WITHOUT SOUND, THE CAMERAS OPERATED ONLY INTERMITTENTLY,
RECORDING VARIOUS PORTIONS OF THE TRIAL FOR BROADCAST ON REGULARLY
SCHEDULED NEWSCASTS LATER IN THE DAY AND EVENING.  AT THE REQUEST OF
THE PETITIONER, THE TRIAL JUDGE PROHIBITED COVERAGE OF ANY KIND, STILL
OR TELEVISION, OF THE DEFENSE COUNSEL DURING THEIR SUMMATIONS TO THE
JURY. 

BECAUSE OF THE VARYING RESTRICTIONS PLACED ON SOUND AND LIVE
TELECASTING THE TELECASTS OF THE TRIAL WERE CONFINED LARGELY TO FILM
CLIPS SHOWN ON THE STATIONS' REGULARLY SCHEDULED NEWS PROGRAMS.  THE
NEWS COMMENTATORS WOULD USE THE FILM OF A PARTICULAR PART OF THE DAY'S
TRIAL ACTIVITIES AS A BACKDROP FOR THEIR REPORTS.  THEIR COMMENTARY
INCLUDED EXCERPTS FROM TESTIMONY AND THE USUAL REPORTORIAL REMARKS.  ON
ONE OCCASION THE VIDEOTAPES OF THE SEPTEMBER HEARINGS WERE REBROADCAST
IN PLACE OF THE "LATE MOVIE." 

                                      II. 

IN RIDEAU V. LOUISIANA, 373 U.S. 723 (1963), THIS COURT CONSTRUCTED A
RULE THAT THE TELEVISING OF A DEFENDANT IN THE ACT OF CONFESSING TO A
CRIME WAS INHERENTLY INVALID UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT EVEN WITHOUT A SHOWING OF PREJUDICE OR A
DEMONSTRATION OF THE NEXUS BETWEEN THE TELEVISED CONFESSION AND THE
TRIAL.  SEE, ID., AT 729 (DISSENTING OPINION OF CLARK, J.).   HERE,
ALTHOUGH THERE WAS NOTHING SO DRAMATIC AS A HOME-VIEWED CONFESSION,
THERE HAD BEEN A BOMBARDMENT OF THE COMMUNITY WITH THE SIGHTS AND
SOUNDS OF A TWO-DAY HEARING DURING WHICH THE ORIGINAL JURY PANEL, THE
PETITIONER, THE LAWYERS AND THE JUDGE WERE HIGHLY PUBLICIZED.  THE
PETITIONER WAS SUBJECTED TO CHARACTERIZATION AND MINUTE ELECTRONIC
SCRUTINY TO SUCH AN EXTENT THAT AT ONE POINT THE PHOTOGRAPHERS WERE
FOUND ATTEMPTING TO PICTURE THE PAGE OF THE PAPER FROM WHICH HE WAS
READING WHILE SITTING AT THE COUNSEL TABLE.  THE TWO-DAY HEARING AND
THE ORDER PERMITTING TELEVISION AT THE ACTUAL TRIAL WERE WIDELY KNOWN
THROUGHOUT THE COMMUNITY.  THIS EMPHASIZED THE NOTORIOUS CHARACTER THAT
THE TRIAL WOULD TAKE AND, THEREFORE, SET IT APART IN THE PUBLIC MIND AS
AN EXTRAORDINARY CASE OR, AS SHAW WOULD SAY, SOMETHING "NOT
CONVENTIONALLY UNCONVENTIONAL."  WHEN THE NEW JURY WAS EMPANELED AT THE
TRIAL FOUR OF THE JURORS SELECTED HAD SEEN AND HEARD ALL OR PARTS OF
THE BROADCASTS OF THE EARLIER PROCEEDINGS. 

                                       III. 

WE START WITH THE PROPOSITION THAT IT IS A "PUBLIC TRIAL" THAT THE
SIXTH AMENDMENT GUARANTEES TO THE "ACCUSED."  THE PURPOSE OF THE
REQUIREMENT OF A PUBLIC TRIAL WAS TO GUARANTEE THAT THE ACCUSED WOULD
BE FAIRLY DEALT WITH AND NOT UNJUSTLY CONDEMNED.  HISTORY HAS PROVEN
THAT SECRET TRIBUNALS WERE EFFECTIVE INSTRUMENTS OF OPPRESSION.  AS OUR
BROTHER BLACK SO WELL SAID IN IN RE OLIVER, 333 U.S. 257 (1948): 

"THE TRADITIONAL ANGLO-AMERICAN DISTRUST FOR SECRET TRIALS HAS BEEN
VARIOUSLY ASCRIBED TO THE NOTORIOUS USE OF THIS PRACTICE BY THE SPANISH
INQUISITION, TO THE EXCESSES OF THE ENGLISH COURT OF STAR CHAMBER, AND
TO THE FRENCH MONARCHY'S ABUSE OF THE LETTRE DE CACHET  ...  .
WHATEVER OTHER BENEFITS THE GUARANTEE TO AN ACCUSED THAT HIS TRIAL BE
CONDUCTED IN PUBLIC MAY CONFER UPON OUR SOCIETY, THE GUARANTEE HAS
ALWAYS BEEN RECOGNIZED AS A SAFEGUARD AGAINST ANY ATTEMPT TO EMPLOY OUR
COURTS AS INSTRUMENTS OF PERSECUTION."  AT 268-270.  (FOOTNOTES
OMITTED.) 

IT IS SAID, HOWEVER, THAT THE FREEDOMS GRANTED IN THE FIRST AMENDMENT
EXTEND A RIGHT TO THE NEWS MEDIA TO TELEVISE FROM THE COURTROOM, AND
THAT TO REFUSE TO HONOR THIS PRIVILEGE IS TO DISCRIMINATE BETWEEN THE
NEWSPAPERS AND TELEVISION.  THIS IS A MISCONCEPTION OF THE RIGHTS OF
THE PRESS. 

THE FREE PRESS HAS BEEN A MIGHTY CATALYST IN AWAKENING PUBLIC
INTEREST IN GOVERNMENTAL AFFAIRS, EXPOSING CORRUPTION AMONG PUBLIC
OFFICERS AND EMPLOYEES AND GENERALLY INFORMING THE CITIZENRY OF PUBLIC
EVENTS AND OCCURRENCES, INCLUDING COURT PROCEEDINGS.  WHILE MAXIMUM
FREEDOM MUST BE ALLOWED THE PRESS IN CARRYING ON THIS IMPORTANT
FUNCTION IN A DEMOCRATIC SOCIETY ITS EXERCISE MUST NECESSARILY BE
SUBJECT TO THE MAINTENANCE OF ABSOLUTE FAIRNESS IN THE JUDICIAL
PROCESS.  WHILE THE STATE AND FEDERAL COURTS HAVE DIFFERED OVER WHAT
SPECTATORS MAY BE EXCLUDED FROM A CRIMINAL TRIAL, 6 WIGMORE, EVIDENCE
SEC. 1834 (3D ED. 1940), THE AMICI CURIAE BRIEF OF THE NATIONAL
ASSOCIATION OF BROADCASTERS AND THE RADIO TELEVISION NEWS DIRECTORS
ASSOCIATION, SAYS, AS INDEED IT MUST, THAT "NEITHER OF THESE TWO
AMENDMENTS (FIRST AND SIXTH) SPEAKS OF AN UNLIMITED RIGHT OF ACCESS TO
THE COURTROOM ON THE PART OF THE BROADCASTING MEDIA  ...  ."  AT 7. 
MOREOVER, THEY RECOGNIZE THAT THE "PRIMARY CONCERN OF ALL MUST BE THE
PROPER ADMINISTRATION OF JUSTICE"; THAT "THE LIFE OR LIBERTY OF ANY
INDIVIDUAL IN THIS LAND SHOULD NOT BE PUT IN JEOPARDY BECAUSE OF
ACTIONS OF ANY NEWS MEDIA"; AND THAT "THE DUE PROCESS REQUIREMENTS IN
BOTH THE FIFTH AND FOURTEENTH AMENDMENTS AND THE PROVISIONS OF THE
SIXTH AMENDMENT REQUIRE A PROCEDURE THAT WILL ASSURE A FAIR TRIAL  ...
."  AT 3-4. 

NOR CAN THE COURTS BE SAID TO DISCRIMINATE WHERE THEY PERMIT THE
NEWSPAPER REPORTER ACCESS TO THE COURTROOM.  THE TELEVISION AND RADIO
REPORTER HAS THE SAME PRIVILEGE.  ALL ARE ENTITLED TO THE SAME RIGHTS
AS THE GENERAL PUBLIC.  THE NEWS REPORTER IS NOT PERMITTED TO BRING HIS
TYPEWRITER OR PRINTING PRESS.  WHEN THE ADVANCES IN THESE ARTS PERMIT
REPORTING BY PRINTING PRESS OR BY TELEVISION WITHOUT THEIR PRESENT
HAZARDS TO A FAIR TRIAL WE WILL HAVE ANOTHER CASE. 

                                     IV. 

COURT PROCEEDINGS ARE HELD FOR THE SOLEMN PURPOSE OF ENDEAVORING TO
ASCERTAIN THE TRUTH WHICH IS THE SINE QUA NON OF A FAIR TRIAL.  OVER
THE CENTURIES ANGLO-AMERICAN COURTS HAVE DEVISED CAREFUL SAFEGUARDS BY
RULE AND OTHERWISE TO PROTECT AND FACILITATE THE PERFORMANCE OF THIS
HIGH FUNCTION.  AS A RESULT, AT THIS TIME THOSE SAFEGUARDS DO NOT
PERMIT THE TELEVISING AND PHOTOGRAPHING OF A CRIMINAL TRIAL, SAVE IN
TWO STATES AND THERE ONLY UNDER RESTRICTIONS.  THE FEDERAL COURTS
PROHIBIT IT BY SPECIFIC RULE.  THIS IS WEIGHTY EVIDENCE THAT OUR
CONCEPTS OF A FAIR TRIAL DO NOT TOLERATE SUCH AN INDULGENCE.  WE HAVE
ALWAYS HELD THAT THE ATMOSPHERE ESSENTIAL TO THE PRESERVATION OF A FAIR
TRIAL - THE MOST FUNDAMENTAL OF ALL FREEDOMS - MUST BE MAINTAINED AT
ALL COSTS.  OUR APPROACH HAS BEEN THROUGH RULES, CONTEMPT PROCEEDINGS
AND REVERSAL OF CONVICTIONS OBTAINED UNDER UNFAIR CONDITIONS.  HERE THE
REMEDY IS CLEAR AND CERTAIN OF APPLICATION AND IT IS OUR DUTY TO
CONTINUE TO ENFORCE THE PRINCIPLES THAT FROM TIME IMMEMORIAL HAVE
PROVEN EFFICACIOUS AND NECESSARY TO A FAIR TRIAL. 

                                        V. 

THE STATE CONTENDS THAT THE TELEVISING OF PORTIONS OF A CRIMINAL
TRIAL DOES NOT CONSTITUTE A DENIAL OF DUE PROCESS.  ITS POSITION IS
THAT BECAUSE NO PREJUDICE HAS BEEN SHOWN BY THE PETITIONER AS RESULTING
FROM THE TELEVISING, IT IS PERMISSIBLE; THAT CLAIMS OF "DISTRACTIONS"
DURING THE TRIAL DUE TO THE PHYSICAL PRESENCE OF TELEVISION ARE WHOLLY
UNFOUNDED; AND THAT PSYCHOLOGICAL CONSIDERATIONS ARE FOR PSYCHOLOGISTS,
NOT COURTS, BECAUSE THEY ARE PURELY HYPOTHETICAL.  IT ARGUES FURTHER
THAT THE PUBLIC HAS A RIGHT TO KNOW WHAT GOES ON IN THE COURTS; THAT
THE COURT HAS NO POWER TO "SUPPRESS, EDIT, OR CENSOR EVENTS WHICH
TRANSPIRE IN PROCEEDINGS BEFORE IT," CITING CRAIG V. HARNEY, 331 U.S.
367, 374 (1947); AND THAT THE TELEVISING OF CRIMINAL TRIALS WOULD BE
ENLIGHTENING TO THE PUBLIC AND WOULD PROMOTE GREATER RESPECT FOR THE
COURTS. 

AT THE OUTSET THE NOTION SHOULD BE DISPELLED THAT TELECASTING IS
DANGEROUS BECAUSE IT IS NEW.  IT IS TRUE THAT OUR EMPIRICAL KNOWLEDGE
OF ITS FULL EFFECT ON THE PUBLIC, THE JURY OR THE PARTICIPANTS IN A
TRIAL, INCLUDING THE JUDGE, WITNESSES AND LAWYERS, IS LIMITED. 
HOWEVER, THE NUB OF THE QUESTION IS NOT ITS NEWNESS BUT, AS MR. JUSTICE
DOUGLAS SAYS, "THE INSIDIOUS INFLUENCES WHICH IT PUTS TO WORK IN THE
ADMINISTRATION OF JUSTICE."  DOUGLAS, THE PUBLIC TRIAL AND THE FREE
PRESS, 33 ROCKY MT. L. REV. 1 (1960).  THESE INFLUENCES WILL BE
DETAILED BELOW, BUT BEFORE TURNING TO THEM THE STATE'S ARGUMENT THAT
THE PUBLIC HAS A RIGHT TO KNOW WHAT GOES ON IN THE COURTROOM SHOULD BE
DEALT WITH.    IT IS TRUE THAT THE PUBLIC HAS THE RIGHT TO BE INFORMED
AS TO WHAT OCCURS IN ITS COURTS, BUT REPORTERS OF ALL MEDIA INCLUDING
TELEVISION, ARE ALWAYS PRESENT IF THEY WISH TO BE AND ARE PLAINLY FREE
TO REPORT WHATEVER OCCURS IN OPEN COURT THROUGH THEIR RESPECTIVE
MEDIA.  THIS WAS SETTLED IN BRIDGES V. CALIFORNIA, 314 U.S. 252 (1941),
AND PENNEKAMP V. FLORIDA, 328 U.S. 331 (1946), WHICH WE REAFFIRM. 
THESE REPORTORIAL PRIVILEGES OF THE PRESS WERE STATED YEARS AGO: 

"THE LAW, HOWEVER, FAVORS PUBLICITY IN LEGAL PROCEEDINGS, SO FAR AS
THAT OBJECT CAN BE ATTAINED WITHOUT INJUSTICE TO THE PERSONS
IMMEDIATELY CONCERNED.  THE PUBLIC ARE PERMITTED TO ATTEND NEARLY ALL
JUDICIAL INQUIRIES, AND THERE APPEARS TO BE NO SUFFICIENT REASON WHY
THEY SHOULD NOT ALSO BE ALLOWED TO SEE IN PRINT THE REPORTS OF TRIALS,
IF THEY CAN THUS HAVE THEM PRESENTED AS FULLY AS THEY ARE EXHIBITED IN
COURT, OR AT LEAST ALL THE MATERIAL PORTION OF THE PROCEEDINGS
IMPARTIALLY STATED, SO THAT ONE SHALL NOT, BY MEANS OF THEM, DERIVE
ERRONEOUS IMPRESSIONS, WHICH HE WOULD NOT HAVE BEEN LIKELY TO RECEIVE
FROM HEARING THE TRIAL ITSELF."  2 COOLEY'S CONSTITUTIONAL LIMITATIONS
931-932 (CARRINGTON ED. 1927). 

THE STATE, HOWEVER, SAYS THAT THE USE OF TELEVISION IN THE INSTANT
CASE WAS "WITHOUT INJUSTICE TO THE PERSON IMMEDIATELY CONCERNED,"
BASING ITS POSITION ON THE FACT THAT THE PETITIONER HAS ESTABLISHED NO
ISOLATABLE PREJUDICE AND THAT THIS MUST BE SHOWN IN ORDER TO INVALIDATE
A CONVICTION IN THESE CIRCUMSTANCES.  THE STATE PAINTS TOO BROADLY IN
THIS CONTENTION, FOR THIS COURT ITSELF HAS FOUND INSTANCES IN WHICH A
SHOWING OF ACTUAL PREJUDICE IS NOT A PREREQUISITE TO REVERSAL.  THIS IS
SUCH A CASE.  IT IS TRUE THAT IN MOST CASES INVOLVING CLAIMS OF DUE
PROCESS DEPRIVATIONS WE REQUIRE A SHOWING OF IDENTIFIABLE PREJUDICE TO
THE ACCUSED.  NEVERTHELESS, AT TIMES A PROCEDURE EMPLOYED BY THE STATE
INVOLVES SUCH A PROBABILITY THAT PREJUDICE WILL RESULT THAT IT IS
DEEMED INHERENTLY LACKING IN DUE PROCESS.  SUCH A CASE WAS IN RE
MURCHISON, 349 U.S. 133 (1955), WHERE MR. JUSTICE BLACK FOR THE COURT
POINTED UP WITH HIS USUAL CLARITY AND FORCE: 

"A FAIR TRIAL IN A FAIR TRIBUNAL IS A BASIC REQUIREMENT OF DUE
PROCESS.  FAIRNESS OF COURSE REQUIRES AN ABSENCE OF ACTUAL BIAS IN THE
TRIAL OF CASES.  BUT OUR SYSTEM OF LAW HAS ALWAYS ENDEAVORED TO PREVENT
EVEN THE PROBABILITY OF UNFAIRNESS  ...  .  TO PERFORM ITS HIGH
FUNCTION IN THE BEST WAY 'JUSTICE MUST SATISFY THE APPEARANCE OF
JUSTICE.'  OFFUTT V. UNITED STATES, 348 U.S. 11, 14."  AT 136. 

AND, AS CHIEF JUSTICE TAFT SAID IN TUMEY V. OHIO, 273 U.S. 510,
ALMOST 30 YEARS BEFORE: 

"THE REQUIREMENT OF DUE PROCESS OF LAW IN JUDICIAL PROCEDURE IS NOT
SATISFIED BY THE ARGUMENT THAT MEN OF THE HIGHEST HONOR AND THE
GREATEST SELF-SACRIFICE COULD CARRY IT ON WITHOUT DANGER OF INJUSTICE. 
EVERY PROCEDURE WHICH WOULD OFFER A POSSIBLE TEMPTATION TO THE AVERAGE
MAN  ...  TO FORGET THE BURDEN OF PROOF REQUIRED TO CONVICT THE
DEFENDANT, OR WHICH MIGHT LEAD HIM NOT TO HOLD THE BALANCE NICE, CLEAR
AND TRUE BETWEEN THE STATE AND THE ACCUSED, DENIES THE LATTER DUE
PROCESS OF LAW."  AT 532. 

THIS RULE WAS FOLLOWED IN RIDEAU, SUPRA, AND IN TURNER V. LOUISIANA,
379 U.S. 466 (1965).  IN EACH OF THESE CASES THE COURT DEPARTED FROM
THE APPROACH IT CHARTERED IN STROBLE V. CALIFORNIA, 343 U.S. 181
(1952), AND IN IRVIN V. DOWD, 366 U.S. 717 (1961), WHERE WE MADE A
CAREFUL EXAMINATION OF THE FACTS IN ORDER TO DETERMINE WHETHER
PREJUDICE RESULTED.  IN RIDEAU AND TURNER THE COURT DID NOT STOP TO
CONSIDER THE ACTUAL EFFECT OF THE PRACTICE BUT STRUCK DOWN THE
CONVICTION ON THE GROUND THAT PREJUDICE WAS INHERENT IN IT.  LIKEWISE
IN GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), AND WHITE V. MARYLAND,
373 U.S. 59 (1963), WE APPLIED THE SAME RULE, ALTHOUGH IN DIFFERENT
CONTEXTS. 

IN THIS CASE IT IS EVEN CLEARER THAT SUCH A RULE MUST BE APPLIED.  IN
RIDEAU, IRVIN AND STROBLE, THE PRETRIAL PUBLICITY OCCURRED OUTSIDE THE
COURTROOM AND COULD NOT BE EFFECTIVELY CURTAILED.  THE ONLY RECOURSE
OTHER THAN REVERSAL WAS BY CONTEMPT PROCEEDINGS.  IN TURNER THE
PROBABILITY OF PREJUDICE WAS PRESENT THROUGH THE USE OF DEPUTY
SHERIFFS, WHO WERE ALSO WITNESSES IN THE CASE, AND SHEPHERDS FOR THE
JURY.  NO PREJUDICE WAS SHOWN BUT THE CIRCUMSTANCES WERE HELD TO BE
INHERENTLY SUSPECT, AND THEREFORE, SUCH A SHOWING WAS NOT HELD TO BE A
REQUISITE TO REVERSAL.  LIKEWISE IN THIS CASE THE APPLICATION OF THIS
PRINCIPLE IS ESPECIALLY APPROPRIATE.  TELEVISION IN ITS PRESENT STATE
AND BY ITS VERY NATURE, REACHES INTO A VARIETY OF AREAS IN WHICH IT MAY
CAUSE PREJUDICE TO AN ACCUSED.  STILL ONE CANNOT PUT HIS FINGER ON ITS
SPECIFIC MISCHIEF AND PROVE WITH PARTICULARITY WHEREIN HE WAS
PREJUDICED.  THIS WAS FOUND TRUE IN MURCHISON, TUMEY, RIDEAU AND
TURNER.  SUCH UNTOWARD CIRCUMSTANCES AS WERE FOUND IN THOSE CASES ARE
INHERENTLY BAD AND PREJUDICE TO THE ACCUSED WAS PRESUMED.  FORTY-EIGHT
OF OUR STATES AND THE FEDERAL RULES HAVE DEEMED THE USE OF TELEVISION
IMPROPER IN THE COURTROOM.  THIS FACT IS MOST TELLING IN BUTTRESSING
OUR CONCLUSION THAT ANY CHANGE IN PROCEDURE WHICH WOULD PERMIT ITS USE
WOULD BE INCONSISTENT WITH OUR CONCEPTS OF DUE PROCESS IN THIS FIELD. 

           VI. 

AS HAS BEEN SAID, THE CHIEF FUNCTION OF OUR JUDICIAL MACHINERY IS TO
ASCERTAIN THE TRUTH.  THE USE OF TELEVISION, HOWEVER, CANNOT BE SAID TO
CONTRIBUTE MATERIALLY TO THIS OBJECTIVE.  RATHER ITS USE AMOUNTS TO THE
INJECTION OF AN IRRELEVANT FACTOR INTO COURT PROCEEDINGS.  IN ADDITION
EXPERIENCE TEACHES THAT THERE ARE NUMEROUS SITUATIONS IN WHICH IT MIGHT
CAUSE ACTUAL UNFAIRNESS - SOME SO SUBTLE AS TO DEFY DETECTION BY THE
ACCUSED OR CONTROL BY THE JUDGE.  WE ENUMERATE SOME IN SUMMARY: 

1.  THE POTENTIAL IMPACT OF TELEVISION ON THE JURORS IS PERHAPS OF
GREATEST SIGNIFICANCE.  THEY ARE THE NERVE CENTER OF THE FACT-FINDING
PROCESS.  IT IS TRUE THAT IN STATES LIKE TEXAS WHERE THEY ARE REQUIRED
TO BE SEQUESTERED IN TRIALS OF THIS NATURE THE JURORS WILL PROBABLY NOT
SEE ANY OF THE PROCEEDINGS AS TELEVISED FROM THE COURTROOM.  BUT THE
INQUIRY CANNOT END THERE.  FROM THE MOMENT THE TRIAL JUDGE ANNOUNCES
THAT A CASE WILL BE TELEVISED IT BECOMES A CAUSE CELEBRE.  THE WHOLE
COMMUNITY, INCLUDING PROSPECTIVE JURORS, BECOMES INTERESTED IN ALL THE
MORBID DETAILS SURROUNDING IT.  THE APPROACHING TRIAL IMMEDIATELY
ASSUMES AN IMPORTANT STATUS IN THE PUBLIC PRESS AND THE ACCUSED IS
HIGHLY PUBLICIZED ALONG WITH THE OFFENSE WITH WHICH HE IS CHARGED. 
EVERY JUROR CARRIES WITH HIM INTO THE JURY BOX THESE SOLEMN FACTS AND
THUS INCREASES THE CHANCE OF PREJUDICE THAT IS PRESENT IN EVERY
CRIMINAL CASE.  AND WE MUST REMEMBER THAT REALISTICALLY IT IS ONLY THE
NOTORIOUS TRIAL WHICH WILL BE BROADCAST, BECAUSE OF THE NECESSITY FOR
PAID SPONSORSHIP.  THE CONSCIOUS OR UNCONSCIOUS EFFECT THAT THIS MAY
HAVE ON THE JUROR'S JUDGMENT CANNOT BE EVALUATED, BUT EXPERIENCE
INDICATES THAT IT IS NOT ONLY POSSIBLE BUT HIGHLY PROBABLE THAT IT WILL
HAVE A DIRECT BEARING ON HIS VOTE AS TO GUILT OR INNOCENCE.  WHERE
PRETRIAL PUBLICITY OF ALL KINDS HAS CREATED INTENSE PUBLIC FEELING
WHICH IS AGGRAVATED BY THE TELECASTING OR PICTURING OF THE TRIAL THE
TELEVISED JURORS CANNOT HELP BUT FEEL THE PRESSURES OF KNOWING THAT
FRIENDS AND NEIGHBORS HAVE THEIR EYES UPON THEM.  IF THE COMMUNITY BE
HOSTILE TO AN ACCUSED A TELEVISED JUROR, REALIZING THAT HE MUST RETURN
TO NEIGHBORS WHO SAW THE TRIAL THEMSELVES, MAY WELL BE LED "NOT TO HOLD
THE BALANCE NICE, CLEAR AND TRUE BETWEEN THE STATE AND THE ACCUSED  ...
." 

MOREOVER, WHILE IT IS PRACTICALLY IMPOSSIBLE TO ASSESS THE EFFECT OF
TELEVISION ON JURY ATTENTIVENESS, THOSE OF US WHO KNOW JURIES REALIZE
THE PROBLEM OF JURY "DISTRACTION."  THE STATE ARGUES THAT THIS DE
MINIMIS SINCE THE PHYSICAL DISTURBANCES HAVE BEEN ELIMINATED.  BUT WE
KNOW THAT DISTRACTIONS ARE NOT CAUSED SOLELY BY THE PHYSICAL PRESENCE
OF THE CAMERA AND ITS TELLTALE RED LIGHTS.  IT IS THE AWARENESS OF THE
FACT OF TELECASTING THAT IS FELT BY THE JUROR THROUGHOUT THE TRIAL.  WE
ARE ALL SELF-CONSCIOUS AND UNEASY WHEN BEING TELEVISED.  HUMAN NATURE
BEING WHAT IT IS, NOT ONLY WILL A JUROR'S EYES BE FIXED ON THE CAMERA,
BUT ALSO HIS MIND WILL BE PREOCCUPIED WITH THE TELECASTING RATHER THAN
WITH THE TESTIMONY. 

FURTHERMORE, IN MANY STATES THE JURORS SERVING IN THE TRIAL MAY SEE
THE BROADCASTS OF THE TRIAL PROCEEDINGS.  ADMITTEDLY, THE TEXAS
SEQUESTRATION RULE WOULD PREVENT THIS OCCURRING THERE.  (FN3) IN OTHER
STATES FOLLOWING NO SUCH PRACTICE JURORS WOULD RETURN HOME AND TURN ON
THE TV IF ONLY TO SEE HOW THEY APPEARED UPON IT.  THEY WOULD ALSO BE
SUBJECTED TO RE-ENACTMENT AND EMPHASIS OF THE SELECTED PARTS OF THE
PROCEEDINGS WHICH THE REQUIREMENTS OF THE BROADCASTERS DETERMINED WOULD
BE TELECAST AND WOULD BE SUBCONSCIOUSLY INFLUENCED THE MORE BY THAT
TESTIMONY.  MOREOVER, THEY WOULD BE SUBJECTED TO THE BROADEST
COMMENTARY AND CRITICISM AND PERHAPS THE WELL-MEANT ADVICE OF FRIENDS,
RELATIVES AND INQUIRING STRANGERS WHO RECOGNIZED THEM ON THE STREETS. 

FINALLY, NEW TRIALS PLAINLY WOULD BE JEOPARDIZED IN THAT POTENTIAL
JURORS WILL OFTEN HAVE SEEN AND HEARD THE ORIGINAL TRIAL WHEN IT WAS
TELECAST.  YET VIEWERS MAY LATER BE CALLED UPON TO SIT IN THE JURY BOX
DURING THE NEW TRIAL.  THESE VERY DANGERS ARE ILLUSTRATED IN THIS CASE
WHERE THE COURT, DUE TO THE DEFENDANT'S OBJECTIONS, PERMITTED ONLY THE
STATE'S OPENING AND CLOSING ARGUMENTS TO BE BROADCAST WITH SOUND TO THE
PUBLIC. 

2.  THE QUALITY OF THE TESTIMONY IN CRIMINAL TRIALS WILL OFTEN BE
IMPAIRED.  THE IMPACT UPON A WITNESS OF THE KNOWLEDGE THAT HE IS BEING
VIEWED BY A VAST AUDIENCE IS SIMPLY INCALCULABLE.  SOME MAY BE
DEMORALIZED AND FRIGHTENED, SOME COCKY AND GIVEN TO OVERSTATEMENT;
MEMORIES MAY FALTER, AS WITH ANYONE SPEAKING PUBLICLY, AND ACCURACY OF
STATEMENT MAY BE SEVERELY UNDERMINED.  EMBARRASSMENT MAY IMPEDE THE
SEARCH FOR THE TRUTH, AS MAY A NATURAL TENDENCY TOWARD
OVERDRAMATIZATION.  FURTHERMORE, INQUISITIVE STRANGERS AND "CRANKS"
MIGHT APPROACH WITNESSES ON THE STREET WITH JIBES, ADVICE OR DEMANDS
FOR EXPLANATION OF TESTIMONY.  THERE IS LITTLE WONDER THAT THE
DEFENDANT CANNOT "PROVE" THE EXISTENCE OF SUCH FACTORS.  YET WE ALL
KNOW FROM EXPERIENCE THAT THEY EXIST. 

IN ADDITION THE INVOCATION OF THE RULE AGAINST WITNESSES IS
FRUSTRATED.  IN MOST INSTANCES WITNESSES WOULD BE ABLE TO GO TO THEIR
HOMES AND VIEW BROADCASTS OF THE DAY'S TRIAL PROCEEDINGS,
NONWITHSTANDING THE FACT THAT THEY HAD BEEN ADMONISHED NOT TO DO SO.
THEY COULD VIEW AND HEAR THE TESTIMONY OF PRECEDING WITNESSES, AND SO
SHAPE THEIR OWN TESTIMONY AS TO MAKE ITS IMPACT CRUCIAL.  AND EVEN IN
THE ABSENCE OF SOUND, THE INFLUENCES OF SUCH VIEWING IN THE ATTITUDE OF
THE WITNESS TOWARD TESTIFYING, HIS FRAME OF MIND UPON TAKING THE STAND
OR HIS APPREHENSION OF WITHERING CROSS-EXAMINATION DEFY OBJECTIVE
ASSESSMENT.  INDEED, THE MERE FACT THAT THE TRIAL IS TO BE TELEVISED
MIGHT RENDER WITNESSES RELUCTANT TO APPEAR AND THEREBY IMPEDE THE TRIAL
AS WELL AS THE DISCOVERY OF THE TRUTH. 

WHILE SOME OF THE DANGERS MENTIONED ABOVE ARE PRESENT AS WELL IN
NEWSPAPER COVERAGE OF ANY IMPORTANT TRIAL, THE CIRCUMSTANCES AND
EXTRANEOUS INFLUENCES INTRUDING UPON THE SOLEMN DECORUM OF COURT
PROCEDURE IN THE TELEVISED TRIAL ARE FAR MORE SERIOUS THAN IN CASES
INVOLVING ONLY NEWSPAPER COVERAGE. 

3.  A MAJOR ASPECT OF THE PROBLEM IS THE ADDITIONAL RESPONSIBILITIES
THE PRESENCE OF TELEVISION PLACES ON THE TRIAL JUDGE.  HIS JOB IS TO
MAKE CERTAIN THAT THE ACCUSED RECEIVES A FAIR TRIAL.  THIS MOST
DIFFICULT TASK REQUIRES HIS UNDIVIDED ATTENTION.  STILL WHEN TELEVISION
COMES INTO THE COURTROOM HE MUST ALSO SUPERVISE IT.  IN THIS TRIAL, FOR
EXAMPLE, THE JUDGE ON SEVERAL DIFFERENT OCCASIONS - ASIDE FROM THE TWO
DAYS OF PRETRIAL - WAS OBLIGED TO HAVE A HEARING OR ENTER AN ORDER MADE
NECESSARY SOLELY BECAUSE OF THE PRESENCE OF TELEVISION.  THUS, WHERE
TELECASTING IS RESTRICTED AS IT WAS HERE, AND AS EVEN THE STATE
CONCEDES IT MUST BE, HIS TASK IS MADE MUCH MORE DIFFICULT AND
EXACTING.  AND, AS HAPPENED HERE, SUCH RULINGS MAY UNFORTUNATELY
MILITATE AGAINST THE FAIRNESS OF THE TRIAL.  IN ADDITION, LAYING
PHYSICAL INTERRUPTIONS ASIDE, THERE IS THE EVER-PRESENT DISTRACTION
THAT THE MERE AWARENESS OF TELEVISION'S PRESENCE PROMPTS.  JUDGES ARE
HUMAN BEINGS ALSO AND ARE SUBJECT TO THE SAME PSYCHOLOGICAL REACTIONS
AS LAYMEN.  TELECASTING IS PARTICULARLY BAD WHERE THE JUDGE IS ELECTED,
AS IS THE CASE IN ALL SAVE A HALF DOZEN OF OUR STATES.  THE TELECASTING
OF A TRIAL BECOMES A POLITICAL WEAPON, WHICH, ALONG WITH OTHER
DISTRACTIONS INHERENT IN BROADCASTING, DIVERTS HIS ATTENTION FROM THE
TASK AT HAND - THE FAIR TRIAL OF THE ACCUSED. 

BUT THIS IS NOT ALL.  THERE IS THE INITIAL DECISION THAT MUST BE MADE
AS TO WHETHER THE USE OF TELEVISION WILL BE PERMITTED.  THIS IS PERHAPS
AN EVEN MORE CRUCIAL CONSIDERATION.  OUR JUDGES ARE HIGH-MINDED MEN AND
WOMEN.  BUT IT IS DIFFICULT TO REMAIN OBVIOUS TO THE PRESSURES THAT THE
NEWS MEDIA CAN BRING TO BEAR ON THEM BOTH DIRECTLY AND THROUGH THE
SHAPING OF PUBLIC OPINION.  MOREOVER, WHERE ONE JUDGE IN A DISTRICT OR
EVEN IN A STATE PERMITS TELECASTING, THE REQUIREMENT THAT THE OTHERS DO
THE SAME IS ALMOST MANDATORY.  ESPECIALLY IS THIS TRUE WHERE THE JUDGE
IS SELECTED AT THE BALLOT BOX.    4.  FINALLY, WE CANNOT IGNORE THE
IMPACT OF COURTROOM TELEVISION ON THE DEFENDANT.  ITS PRESENCE IS A
FORM OF MENTAL - IF NOT PHYSICAL - HARASSMENT, RESEMBLING A POLICE LINE
UP OR THE THIRD DEGREE.   THE INEVITABLE CLOSE-UPS OF HIS GESTURES AND
EXPRESSIONS DURING THE ORDEAL OF HIS TRIAL MIGHT WELL TRANSGRESS HIS
PERSONAL SENSIBILITIES, HIS DIGNITY, AND HIS ABILITY TO CONCENTRATE ON
THE PROCEEDINGS BEFORE HIM - SOMETIMES THE DIFFERENCE BETWEEN LIFE AND
DEATH - DISPASSIONATELY, FREELY AND WITHOUT THE DISTRACTION OF WIDE
PUBLIC SURVEILLANCE.  A DEFENDANT ON TRIAL FOR A SPECIFIC CRIME IS
ENTITLED TO HIS DAY IN COURT, NOT IN A STADIUM, OR A CITY OR NATIONWIDE
ARENA.  THE HEIGHTENED PUBLIC CLAMOR RESULTING FROM RADIO AND
TELEVISION COVERAGE WILL INEVITABLY RESULT IN PREJUDICE.  TRIAL BY
TELEVISION IS, THEREFORE, FOREIGN TO OUR SYSTEM.  FURTHERMORE,
TELECASTING MAY ALSO DEPRIVE AN ACCUSED OF EFFECTIVE COUNSEL.  THE
DISTRACTIONS, INTRUSIONS INTO CONFIDENTIAL ATTORNEY-CLIENT
RELATIONSHIPS AND THE TEMPTATION OFFERED BY TELEVISION TO PLAY TO THE
PUBLIC AUDIENCE MIGHT OFTEN HAVE A DIRECT EFFECT NOT ONLY UPON THE
LAWYERS, BUT THE JUDGE, THE JURY AND THE WITNESSES.  SEE PYE, THE
LESSONS OF DALLAS - THREATS TO FAIR TRIAL AND FREE PRESS, NATIONAL
CIVIL LIBERTIES CLEARING HOUSE, 16TH ANNUAL CONFERENCE. 

THE TELEVISION CAMERA IS A POWERFUL WEAPON.  INTENTIONALLY OR
INADVERTENTLY IT CAN DESTROY AN ACCUSED AND HIS CASE IN THE EYES OF THE
PUBLIC.  WHILE OUR TELECASTERS ARE HONORABLE MEN, THEY TOO ARE HUMAN. 
THE NECESSITY FOR SPONSORSHIP WEIGHS HEAVILY IN FAVOR OF THE TELEVISING
OF ONLY NOTORIOUS CASES, SUCH AS THIS ONE, AND INVARIABLY FOCUSES THE
LENS UPON THE UNPOPULAR OR INFAMOUS ACCUSED.  SUCH A SELECTION IS
NECESSARY IN ORDER TO OBTAIN A SPONSOR WILLING TO PAY A SUFFICIENT FEE
TO COVER THE COSTS AND RETURN A PROFIT.  WE HAVE ALREADY EXAMINED THE
WAYS IN WHICH PUBLIC SENTIMENT CAN AFFECT THE TRIAL PARTICIPANTS.  TO
THE EXTENT THAT TELEVISION SHAPES THAT SENTIMENT, IT CAN STRIP THE
ACCUSED OF A FAIR TRIAL. 

THE STATE WOULD DISPOSE OF ALL THESE OBSERVATIONS WITH THE SIMPLE
STATEMENT THAT THEY ARE FOR PSYCOLOGISTS BECAUSE THEY ARE PURELY
HYPOTHETICAL.  BUT WE CANNOT AFFORD THE LUXURY OF SAYING THAT, BECAUSE
THESE FACTORS ARE DIFFICULT OF ASCERTAINMENT IN PARTICULAR CASES, THEY
MUST BE IGNORED.  NOR ARE THEY "PURELY HYPOTHETICAL."  THEY ARE NO MORE
HYPOTHETICAL THAN WERE THE CONSIDERATIONS DEEMED CONTROLLING IN TUMEY,
MURCHISON, RIDEAU AND TURNER.  THEY ARE REAL ENOUGH TO HAVE CONVINCED
THE JUDICIAL CONFERENCE OF THE UNITED STATES, THIS COURT AND THE
CONGRESS THAT TELEVISION SHOULD BE BARRED IN FEDERAL TRIALS BY THE
FEDERAL RULES OF CRIMINAL PROCEDURE; IN ADDITION THEY HAVE PERSUADED
ALL BUT TWO OF OUR STATES TO PROHIBIT TELEVISION IN THE COURTROOM. 
THEY ARE EFFECTS THAT MAY, AND IN SOME COMBINATION ALMOST CERTAINLY
WILL, EXIST IN ANY CASE IN WHICH TELEVISION IS INJECTED INTO THE TRIAL
PROCESS. 

                 VII. 

THE FACTS IN THIS CASE DEMONSTRATE CLEARLY THE NECESSITY FOR THE
APPLICATION OF THE RULE ANNOUNCED IN RIDEAU.  THE SOLE ISSUE BEFORE THE
COURT FOR TWO DAYS OF PRETRIAL HEARING WAS THE QUESTION NOW BEFORE US.
THE HEARING WAS TELEVISED LIVE AND REPEATED ON TAPE IN THE SAME
EVENING, REACHING APPROXIMATELY 100,000 VIEWERS.  IN ADDITION, THE
COURTROOM WAS A MASS OF WIRES, TELEVISION CAMERAS, MICROPHONES AND
PHOTOGRAPHERS.  THE PETITIONER, THE PANEL OF PROSPECTIVE JURORS, WHO
WERE SWORN THE SECOND DAY, THE WITNESSES AND THE LAWYERS WERE ALL
EXPOSED TO THIS UNTOWARD SITUATION.  THE JUDGE DECIDED THAT THE TRIAL
PROCEEDINGS WOULD BE TELECAST.  HE ANNOUNCED NO RESTRICTIONS AT THE
TIME.  THIS EMPHASIZED THE NOTORIOUS NATURE OF THE COMING TRIAL,
INCREASED THE INTENSITY OF THE PUBLICITY ON THE PETITIONER AND TOGETHER
WITH THE SUBSEQUENT TELEVISING OF THE TRIAL BEGINNING 30 DAYS LATER
INHERENTLY PREVENTED A SOBER SEARCH FOR THE TRUTH.  THIS IS UNDERSCORED
BY THE FACT THAT THE SELECTION OF THE JURY TOOK AN ENTIRE WEEK.  AS
MIGHT BE EXPECTED, A SUBSTANTIAL AMOUNT OF THAT TIME WAS DEVOTED TO
ASCERTAINING THE IMPACT OF THE PRETRIAL TELEVISING ON THE PROSPECTIVE
JURORS.  AS WE HAVE NOTED, FOUR OF THE JURORS SELECTED HAD SEEN ALL OR
PART OF THOSE BROADCASTS.  THE TRIAL, ON THE OTHER HAND, LASTED ONLY
THREE DAYS. 

MOREOVER, THE TRIAL JUDGE WAS HIMSELF HARASSED.  AFTER THE INITIAL
DECISION TO PERMIT TELECASTING HE APPARENTLY DECIDED THAT A BOOTH
SHOULD BE BUILT AT THE BROADCASTERS' EXPENSE TO CONFINE ITS OPERATIONS;
HE THEN DECIDED TO LIMIT THE PARTS OF THE TRIAL THAT MIGHT BE TELEVISED
LIVE; THEN HE DECIDED TO FILM THE TESTIMONY OF THE WITNESSES WITHOUT
SOUND IN AN ATTEMPT TO PROTECT THOSE UNDER THE RULE; AND FINALLY HE
ORDERED THAT DEFENSE COUNSEL AND THEIR ARGUMENT NOT BE TELEVISED, IN
THE LIGHT OF THEIR OBJECTION.  PLAGUED BY HIS ORIGINAL ERROR -
RECURRING EACH DAY OF THE TRIAL - HIS DAY-TO-DAY ORDERS MADE THE TRIAL
MORE CONFUSING TO THE JURY, THE PARTICIPANTS AND TO THE VIEWERS. 
INDEED, IT RESULTED IN A PUBLIC PRESENTATION OF ONLY THE STATE'S SIDE
OF THE CASE. 

AS MR. JUSTICE HOLMES SAID IN PATTERSON V. COLORADO, 205 U.S. 454,
462 (1907): 

"THE THEORY OF OUR SYSTEM IS THAT THE CONCLUSIONS TO BE REACHED IN A
CASE WILL BE INDUCED ONLY BY EVIDENCE AND ARGUMENT IN OPEN COURT, AND
NOT BY ANY OUTSIDE INFLUENCE, WHETHER OF PRIVATE TALK OR PUBLIC
PRINT." 

IT IS SAID THAT THE EVER-ADVANCING TECHNIQUES OF PUBLIC COMMUNICATION
AND THE ADJUSTMENT OF THE PUBLIC TO ITS PRESENCE MAY BRING ABOUT A
CHANGE IN THE EFFECT OF TELECASTING UPON THE FAIRNESS OF CRIMINAL
TRIALS.  BUT WE ARE NOT DEALING HERE WITH FUTURE DEVELOPMENTS IN THE
FIELD OF ELECTRONICS.  OUR JUDGMENT CANNOT BE RESTED ON THE HYPOTHESIS
OF TOMORROW BUT MUST TAKE THE FACTS AS THEY ARE PRESENTED TODAY. 

THE JUDGMENT IS THEREFORE REVERSED. 

FN1  THE EVIDENCE INDICATED THAT PETITIONER, THROUGH FALSE PRETENSES
AND FRAUDULENT REPRESENTATIONS, INDUCED CERTAIN FARMERS TO PURCHASE
FERTILIZER TANKS AND ACCOMPANYING EQUIPMENT, WHICH IN FACT DID NOT
EXIST, AND TO SIGN AND DELIVER TO HIM CHATTEL MORTGAGES ON THE
FICTITIOUS PROPERTY. 

FN2  DUE TO MECHANICAL DIFFICULTY THERE WAS NO PICTURE DURING THE
OPENING ARGUMENT. 

FN3  ONLY SIX STATES, IN ADDITION TO TEXAS, REQUIRE SEQUESTRATION OF
THE JURY PRIOR TO ITS DELIBERATIONS IN A NON-CAPITAL FELONY TRIAL.  THE
GREAT MAJORITY OF JURISDICTIONS LEAVE THE MATTER TO THE TRIAL JUDGE'S
DISCRETION, WHILE IN AT LEAST ONE STATE THE JURY WILL BE KEPT TOGETHER
IN SUCH CIRCUMSTANCES ONLY UPON A SHOWING OF CAUSE BY THE DEFENDANT. 

MR. CHIEF JUSTICE WARREN, WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
GOLDBERG JOIN, CONCURRING. 

WHILE I JOIN THE COURT'S OPINION AND AGREE THAT THE TELEVISING OF
CRIMINAL TRIALS IS INHERENTLY A DENIAL OF DUE PROCESS, I DESIRE TO
EXPRESS ADDITIONAL VIEWS ON WHY THIS IS SO.  IN DOING THIS, I WISH TO
EMPHASIZE THAT OUR CONDEMNATION OF TELEVISED CRIMINAL TRIALS IS NOT
BASED ON GENERALITIES OR ABSTRACT FEARS.  THE RECORD IN THIS CASE
PRESENTS A VIVID ILLUSTRATION OF THE INHERENT PREJUDICE OF TELEVISED
CRIMINAL TRIALS AND SUPPORTS OUR CONCLUSION THAT THIS IS THE
APPROPRIATE TIME TO MAKE A DEFINITIVE APPRAISAL OF TELEVISION IN THE
COURTROOM. 

       I. 

PETITIONER, A MUCH-PUBLICIZED FINANCIER, WAS INDICTED BY A REEVES
COUNTY, TEXAS, GRAND JURY FOR OBTAINING PROPERTY THROUGH FALSE
PRETENSES.  THE CASE WAS TRANSFERRED TO THE CITY OF TYLER, IN SMITH
COUNTY, TEXAS, AND WAS SET FOR TRIAL ON SEPTEMBER 24, 1962.  PRIOR TO
THAT DATE PETITIONER'S COUNSEL INFORMED THE TRIAL JUDGE THAT HE WOULD
MAKE A MOTION ON SEPTEMBER 24 TO EXCLUDE ALL CAMERAS FROM THE COURTROOM
DURING THE TRIAL. 

ON SEPTEMBER 24, A HEARING WAS HELD TO CONSIDER PETITIONER'S MOTION
TO PROHIBIT TELEVISION, MOTION PICTURES, AND STILL PHOTOGRAPHY AT THE
TRIAL.  THE COURTROOM WAS FILLED WITH NEWSPAPER REPORTERS AND
CAMERAMEN, TELEVISION CAMERAMEN, AND SPECTATORS.  AT LEAST 12 CAMERAMEN
WITH THEIR EQUIPMENT WERE SEEN BY ONE OBSERVER, AND THERE WERE 30 OR
MORE PEOPLE STANDING IN THE AISLES.  AN ARTICLE APPEARING IN THE NEW
YORK TIMES THE NEXT DAY STATED: 

"A TELEVISION MOTOR VAN, BIG AS AN INTERCONTINENTAL BUS, WAS PARKED
OUTSIDE THE COURTHOUSE AND THE SECOND-FLOOR COURTROOM WAS A FOREST OF
EQUIPMENT.  TWO TELEVISION CAMERAS HAD BEEN SET UP INSIDE THE BAR AND
FOUR MORE MARKED CAMERAS WERE ALIGNED JUST OUTSIDE THE GATES  ...  .
CABLES AND WIRES SNAKED OVER THE FLOOR."  (FN1) 

WITH PHOTOGRAPHERS ROAMING AT WILL THROUGH THE COURTROOM,
PETITIONER'S COUNSEL MADE HIS MOTION THAT ALL CAMERAS BE EXCLUDED.  AS
HE SPOKE, A CAMERAMAN WANDERED BEHIND THE JUDGE'S BENCH AND SNAPPED HIS
PICTURE.  COUNSEL ARGUED THAT THE PRESENCE OF CAMERAS WOULD MAKE IT
DIFFICULT FOR HIM TO CONSULT WITH HIS CLIENT, MAKE HIS CLIENT ILL AT
EASE, AND MAKE IT IMPOSSIBLE TO OBTAIN A FAIR TRIAL SINCE THE CAMERAS
WOULD DISTRACT THE JURY, WITNESSES AND LAWYERS.  HE ALSO EXPRESSED THE
VIEW THAT TELEVISING SELECTED CASES TENDS TO GIVE THE JURY AN
IMPRESSION THAT THE PARTICULAR TRIAL IS DIFFERENT FROM ORDINARY
CRIMINAL TRIALS.  THE COURT, HOWEVER, RULED THAT THE TAKING OF PICTURES
AND TELEVISING WOULD BE ALLOWED SO LONG AS THE CAMERAMEN STOOD OUTSIDE
THE RAILING THAT SEPARATES THE TRIAL PARTICIPANTS FROM THE SPECTATORS. 
THE COURT ALSO RULED THAT IF A COMPLAINT WAS MADE THAT ANY CAMERA WAS
TOO NOISY, THE CAMERAMEN WOULD HAVE TO STOP TAKING PICTURES; THAT NO
PICTURES COULD BE TAKEN IN THE CORRIDORS OUTSIDE THE COURTROOM; AND
THAT THOSE WITH MICROPHONES WERE NOT TO PICK UP CONVERSATIONS BETWEEN
PETITIONER AND HIS LAWYERS.  SUBSEQUENT TO THE COURT'S RULING
PETITIONER ARRIVED IN THE COURTROOM, (FN2) AND THE DEFENSE INTRODUCED
TESTIMONY CONCERNING THE ATMOSPHERE IN THE COURT ON THAT DAY.  AT THE
CONCLUSION OF THE DAY'S HEARING THE JUDGE REASSERTED HIS EARLIER
RULING.  HE THEN ORDERED A ROLL CALL OF THE PROSECUTION WITNESSES, AT
LEAST SOME OF WHOM HAD BEEN IN THE COURTROOM DURING THE PROCEEDINGS. 

THE ENTIRE HEARING ON SEPTEMBER 24 WAS TELEVISED LIVE BY STATION KLTV
OF TYLER, TEXAS, AND STATION WFAA-TV OF DALLAS, TEXAS.  COMMERCIALS
WERE INSERTED WHEN THERE WAS A PAUSE IN THE PROCEEDINGS.  ON THE
EVENING OF MONDAY, SEPTEMBER 24, BOTH STATIONS RAN AN EDITED TAPE OF
THE DAY'S PROCEEDINGS AND INTERRUPTED THE TAPE TO PLAY THE COMMERCIALS
ORDINARILY SEEN IN THE PARTICULAR TIME SLOT.  IN ADDITION TO LIVE
TELEVISION CONVERAGE THERE WAS ALSO A LIVE RADIO PICKUP OF THE
PROCEEDINGS BY AT LEAST ONE STATION. 

THE PROCEEDINGS CONTINUED ON SEPTEMBER 25.  THERE WAS AGAIN A
SIGNIFICANT NUMBER OF CAMERAMEN TAKING MOTION PICTURES, STILL PICTURES
AND TELEVISION PICTURES.  THE JUDGE ONCE MORE ORDERED CAMERAMEN TO STAY
ON THE OTHER SIDE OF THE RAILING AND STATED THAT THIS ORDER WAS TO BE
OBSERVED EVEN DURING COURT RECESSES.  THE PANEL FROM WHICH THE PETIT
JURY WAS TO BE SELECTED WAS THEN SWORN IN THE PRESENCE OF THE
CAMERAMEN.  THE PANEL WAS EXCUSED TO PERMIT COUNSEL TO RENEW HIS MOTION
TO PROHIBIT PHOTOGRAPHY IN THE COURTROOM.  THE COURT DENIED THE MOTION,
BUT GRANTED A CONTINUANCE OF TRIAL UNTIL OCTOBER 22 AND DISMISSED THE
JURY PANEL.  AT THE SUGGESTION OF PETITIONER'S COUNSEL THE TRIAL JUDGE
WARNED THE PROSECUTION WITNESSES WHO WERE PRESENT NOT TO DISCUSS THE
CASE DURING THE CONTINUANCE.  THE PROCEEDINGS WERE TELEVISED LIVE AND
PORTIONS OF THE TELEVISION TAPE WERE SHOWN ON THE REGULARLY SCHEDULED
EVENING NEWS PROGRAMS.  LIVE RADIO TRANSMISSION APPARENTLY OCCURRED AS
ON THE DAY BEFORE. 

ON OCTOBER 1, 1962, THE TRIAL JUDGE ISSUED AN ORDER EXPLAINING WHAT
COVERAGE HE WOULD PERMIT DURING THE TRIAL.  THE JUDGE DELIVERED THE
ORDER IN HIS CHAMBERS FOR THE BENEFIT OF TELEVISION CAMERAMEN SO THAT
THEY COULD FILM HIM.  THE JUDGE RULED THAT ALTHOUGH HE WOULD PERMIT
TELEVISION CAMERAS TO BE PRESENT DURING THE TRIAL, THEY WOULD NOT BE
PERMITTED TO PRESENT LIVE COVERAGE OF THE INTERROGATION OF PROSPECTIVE
JURORS OR THE TESTIMONY OF WITNESSES.  HE RULED THAT EACH OF THE THREE
MAJOR TELEVISION NETWORKS, NBC, CBS, ABC, AND THE LOCAL TELEVISION
STATION KLTV COULD INSTALL ONE CAMERA NOT EQUIPPED TO PICK UP SOUND AND
THE FILM WOULD BE AVAILABLE TO OTHER TELEVISION STATIONS ON A POOLED
BASIS.  IN ADDITION, HE RULED THAT WITH RESPECT TO NEWS PHOTOGRAPHERS
ONLY CAMERAMEN FOR THE LOCAL PRESS, ASSOCIATED PRESS, AND UNITED PRESS
WOULD BE PERMITTED IN THE COURTROOM.  PHOTOGRAPHS TAKEN WERE ALSO TO BE
MADE AVAILABLE TO OTHERS ON A POOLED BASIS.  THE JUDGE DID NOT EXPLAIN
HOW HE DECIDED WHICH TELEVISION CAMERAMEN AND WHICH STILL PHOTOGRAPHERS
WERE TO BE PERMITTED IN THE COURTROOM AND WHICH WERE TO BE EXCLUDED. 

FOR THE PROCEEDINGS BEGINNING ON OCTOBER 22, STATION KLTV, AT ITS OWN
EXPENSE, AND WITH THE PERMISSION OF THE COURT, HAD CONSTRUCTED A BOOTH
IN THE REAR OF THE COURTROOM PAINTED THE SAME OR NEAR THE SAME COLOR AS
THE COURTROOM.  AN OPENING RUNNING LENGTHWISE ACROSS THE BOOTH
PERMITTED THE FOUR TELEVISION CAMERAS TO PHOTOGRAPH THE PROCEEDINGS. 
THE COURTROOM WAS SMALL AND THE CAMERAS WERE CLEARLY VISIBLE TO ALL IN
THE COURTROOM.  (FN3)  THE CAMERAS WERE EQUIPPED WITH "ELECTRONIC SOUND
ON CAMERA" WHICH PERMITTED THEM TO TAKE BOTH FILM AND SOUND.  UPON
ENTERING THE COURTROOM THE JUDGE TOLD ALL THOSE WITH TELEVISION CAMERAS
TO GO BACK TO THE BOOTH; ASKED THE PRESS PHOTOGRAPHERS NOT TO MOVE
AROUND ANY MORE THAN NECESSARY; ORDERED THAT NO FLASHBULBS OR
FLOODLIGHTS BE USED; AND AGAIN TOLD CAMERAMEN THAT THEY COULD NOT GO
INSIDE THE RAILING.  DEFENSE COUNSEL RENEWED HIS MOTION TO BAN ALL
"SOUND EQUIPMENT  ...  STILL CAMERAS, MOVIE CAMERAS AND TELEVISION; AND
ALL RADIO FACILITIES" FROM THE COURTROOM.  WITNESSES WERE AGAIN CALLED
ON THIS ISSUE, BUT AT THE CONCLUSION OF THE HEARING THE TRIAL JUDGE
REAFFIRMED HIS PRIOR RULING TO PERMIT CAMERAMEN IN THE COURTROOM.  IN
RESPONSE TO PETITIONER'S ARGUMENT THAT HIS RIGHTS UNDER THE
CONSTITUTION OF THE UNITED STATES WERE BEING VIOLATED, THE JUDGE
REMARKED THAT THE "CASE WAS NOT BEING TRIED UNDER THE FEDERAL
CONSTITUTION."    NONE OF THE PROCEEDINGS ON OCTOBER 22 WAS TELEVISED
LIVE.  TELEVISION CAMERAS, HOWEVER, RECORDED THE DAY'S ENTIRE
PROCEEDINGS WITH SOULD FOR LATER SHOWINGS.  APPARENTLY NONE OF THE
OCTOBER 22 PROCEEDINGS WAS CARRIED LIVE ON RADIO, ALTHOUGH THE
PROCEEDINGS WERE RECORDED ON TAPE.  THE STILL PHOTOGRAPHERS ADMITTED BY
THE COURT WERE FREE TO TAKE PHOTOGRAPHS FROM OUTSIDE THE RAILING. 

ON OCTOBER 23 THE SELECTION OF THE JURY BEGAN.  OVERNIGHT AN
ADDITIONAL STRIP HAD BEEN PLACED ACROSS THE TELEVISION BOOTH SO THAT
THE OPENING FOR THE TELEVISION CAMERAS WAS REDUCED, BUT THE CAMERAS AND
THEIR OPERATORS WERE STILL QUITE VISIBLE.  (FN4)  A PANEL OF 86
PROSPECTIVE JURORS WAS READY FOR THE VOIR DIRE.  THE JUDGE EXCUSED THE
JURORS FROM THE COURTROOM AND MADE STILL ANOTHER RULING ON NEWS
COVERAGE AT THE TRIAL.  HE ORDERED THE TELEVISION RECORDING TO PROCEED
FROM THAT POINT ON WITHOUT AN AUDIO PICKUP, AND, IN ADDITION, FORBADE
RADIO TAPES OF ANY FURTHER PROCEEDINGS UNTIL ALL THE EVIDENCE HAD BEEN
INTRODUCED.  DURING THE COURSE OF THE TRIAL THE TELEVISION CAMERAS
RECORDED WITHOUT SOUND WHATEVER MATTERS APPEARED INTERESTING TO THEM
FOR USE ON LATER NEWSCASTS; RADIO BROADCASTS IN THE FORM OF SPOT
REPORTS WERE MADE FROM A ROOM NEXT TO THE COURTROOM.  THERE WAS NO LIVE
TELEVISION OR RADIO COVERAGE UNTIL NOVEMBER 7 WHEN THE TRIAL JUDGE
PERMITTED LIVE COVERAGE OF THE PROSECUTION'S ARGUMENTS TO THE JURY, THE
RETURN OF THE JURY'S VERDICT AND ITS ACCEPTANCE BY THE COURT.  SINCE
THE DEFENSE OBJECTED TO BEING PHOTOGRAPHED DURING THE SUMMATION, THE
JUDGE PROHIBITED TELEVISION CAMERAMEN OR STILL PHOTOGRAPHERS FROM
TAKING ANY PICTURES OF THE DEFENSE DURING ITS ARGUMENT.  BUT THE SHOW
WENT ON, AND WHILE THE DEFENSE WAS SPEAKING THE CAMERAS WERE DIRECTED
AT THE JUDGE AND THE ARGUMENTS WERE MONITORED BY AUTIO EQUIPMENT AND
RELAYED TO THE TELEVISION AUDIENCE BY AN ANNOUNCER.  ON NOVEMBER 7 THE
JUDGE, FOR THE FIRST TIME, DIRECTED NEWS PHOTOGRAPHERS DESIRING TO TAKE
PICTURES TO TAKE THEM ONLY FROM THE BACK OF THE ROOM.  UP UNTIL THIS
TIME THE TRIAL JUDGE'S ORDERS MERELY LIMITED NEWS PHOTOGRAPHERS TO THE
SPECTATOR SECTION. 

                            II. 

THE DECISION BELOW AFFIRMING PETITIONER'S CONVICTION RUNS COUNTER TO
THE EVOLUTION OF ANGLO-AMERICAN CRIMINAL PROCEDURE OVER A PERIOD OF
CENTURIES.  DURING THAT TIME THE CRIMINAL TRIAL HAS DEVELOPED FROM A
RITUAL PRACTICALLY DEVOID OF RATIONAL JUSTIFICATION (FN5) TO A FACT
FINDING PROCESS, THE ACKNOWLEDGED PURPOSE OF WHICH IS TO PROVIDE A FAIR
AND RELIABLE DETERMINATION OF GUILT.   (FN6) 

AN ELEMENT OF RATIONALITY WAS INTRODUCED INTO THE GUILT-DETERMINING
PROCESS IN ENGLAND OVER 600 YEARS AGO WHEN A RUDIMENTARY TRIAL BY JURY
BECAME "THE PRINCIPAL INSTITUTION FOR CRIMINAL CASES."  (FN7)
INITIALLY MEMBERS OF THE JURY WERE EXPECTED TO MAKE THEIR OWN
EXAMINATIONS OF THE CASES THEY WERE TO TRY AND COME TO COURT ALREADY
FAMILIAR WITH THE FACTS, (FN8) WHICH MADE IT IMPOSSIBLE TO LIMIT THE
JURY'S DETERMINATION TO LEGALLY RELEVANT EVIDENCE.  GRADUALLY, HOWEVER,
THE JURY WAS TRANSFORMED FROM A PANEL OF WITNESSES TO A PANEL OF TRIERS
PASSING ON EVIDENCE GIVEN BY OTHERS IN THE COURTROOM.  (FN9)  THE NEXT
STEP WAS TO INSURE THE INDEPENDENCE OF THE JURY, AND THIS WAS
ACCOMPLISHED BY THE DECISION IN THE CASE OF EDWARD BUSHELL, 6 HOW.  ST.
TR. 999 (1670), WHICH PUT AN END TO THE PRACTICE OF FINING OR OTHERWISE
PUNISHING JURY MEMBERS WHO FAILED TO REACH THE DECISION DIRECTED BY THE
COURT.  AS THE PURPOSE OF TRIAL AS A VEHICLE FOR DISCOVERING THE TRUTH
BECAME CLEARER, IT WAS RECOGNIZED THAT THE DEFENDANT SHOULD HAVE THE
RIGHT TO CALL WITNESSES AND TO PLACE THEM UNDER OATH, (FN10) TO BE
INFORMED OF THE CHARGES AGAINST HIM BEFORE THE TRIAL, (FN11) AND TO
HAVE COUNSEL ASSIST HIM WITH HIS DEFENSE.  (FN12)  ALL THESE
PROTECTIONS, AND OTHERS WHICH COULD BE CITED, WERE PART OF A
DEVELOPMENT BY WHICH "THE ADMINISTRATION OF CRIMINAL JUSTICE WAS SET
UPON A FIRM AND DIGNIFIED BASIS."  (FN13) 

WHEN THE COLONISTS UNDERTOOK THE RESPONSIBILITY OF GOVERNING
THEMSELVES, ONE OF THEIR PRIME CONCERNS WAS THE ESTABLISHMENT OF TRIAL
PROCEDURES WHICH WOULD BE CONSISTENT WITH THE PURPOSE OF TRIAL.  THE
CONTINENTAL CONGRESS PASSED MEASURES DESIGNED TO SAFEGUARD THE RIGHT TO
A FAIR TRIAL, (FN14) AND THE VARIOUS STATES ADOPTED CONSTITUTIONAL
PROVISIONS DIRECTED TO THE SAME END.  (FN15) EVENTUALLY THE SIXTH
AMENDMENT INCORPORATED INTO THE CONSTITUTION CERTAIN PROVISIONS DEALING
WITH THE CONDUCT OF TRIALS: 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE
BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

SIGNIFICANTLY, IN THE SIXTH AMENDMENT THE WORDS "SPEEDY AND PUBLIC"
QUALIFY THE TERM TRIAL AND THE REST OF THE AMENDMENT DEFINES SPECIFIC
PROTECTIONS THE ACCUSED IS TO HAVE AT HIS TRIAL.  THUS, THE SIXTH
AMENDMENT, BY ITS OWN TERMS, NOT ONLY REQUIRES THAT THE ACCUSED HAVE
CERTAIN SPECIFIC RIGHTS BUT ALSO THAT HE ENJOY THEM AT A TRIAL - A WORD
WITH A MEANING OF ITS OWN, SEE BRIDGES V. CALIFORNIA, 314 U.S. 252,
271. 

THE FOURTEENTH AMENDMENT WHICH PLACES LIMITATIONS ON THE STATES'
ADMINISTRATION OF THEIR CRIMINAL LAWS ALSO GIVES CONTENT TO THE TERM
TRIAL.  WHETHER THE SIXTH AMENDMENT AS A WHOLE APPLIES TO THE STATES
THROUGH THE FOURTEENTH, (FN16) OR THE FOURTEENTH AMENDMENT EMBRACES
ONLY THOSE PORTIONS OF THE SIXTH AMENDMENT THAT ARE "FUNDAMENTAL,"
(FN17) OR THE FOURTEENTH AMENDMENT INCORPORATES A STANDARD OF "ORDERED
LIBERTY" APART FROM THE SPECIFIC GUARANTEES OF THE BILL OF RIGHTS,
(FN18) IT HAS BEEN RECOGNIZED THAT STATE PROSECUTIONS MUST, AT THE
LEAST, COMPORT WITH "THE FUNDAMENTAL CONCEPTION" OF A FAIR TRIAL. 
(FN19) 

IT HAS BEEN HELD ON ONE OR ANOTHER OF THESE THEORIES THAT THE
FUNDAMENTAL CONCEPTION OF A FAIR TRIAL INCLUDES MANY OF THE SPECIFIC
PROVISIONS OF THE SIXTH AMENDMENT, SUCH AS THE RIGHT TO HAVE THE
PROCEEDINGS OPEN TO THE PUBLIC, IN RE OLIVER, 333 U.S. 257; THE RIGHT
TO NOTICE OF SPECIFIC CHARGES, COLE V. ARKANSAS, 333 U.S. 196; THE
RIGHT TO CONFRONTATION, POINTER V. TEXAS, 380 U.S. 400; DOUGLAS V.
ALABAMA, 380 U.S. 415; AND THE RIGHT TO COUNSEL, GIDEON V. WAINWRIGHT,
372 U.S. 335.  BUT IT ALSO HAS BEEN AGREED THAT NEITHER THE SIXTH NOR
THE FOURTEENTH AMENDMENT IS TO BE READ FORMALISTICALLY, FOR THE CLEAR
INTENT OF THE AMENDMENTS IS THAT THESE SPECIFIC RIGHTS BE ENJOYED AT A
CONSTITUTIONAL TRIAL.  IN THE WORDS OF JUSTICE HOLMES, EVEN THOUGH
"EVERY FORM BE PRESERVED," THE FORMS MAY AMOUNT TO NO "MORE THAN AN
EMPTY SHELL" WHEN CONSIDERED IN THE CONTEXT OR SETTING IN WHICH THEY
WERE ACTUALLY APPLIED.  (FN20) 

IN CASES ARISING FROM STATE PROSECUTIONS THIS COURT HAS ACTED TO
PREVENT THE RIGHT TO A CONSTITUTIONAL TRIAL FROM BEING REDUCED TO A
FORMALITY BY THE INTRUSION OF FACTORS INTO THE TRIAL PROCESS THAT TEND
TO SUBVERT ITS PURPOSE.  THE COURT RECOGNIZED IN PENNEKAMP V. FLORIDA,
328 U.S. 331, 334, THAT THE "ORDERLY OPERATION OF COURTS" IS "THE
PRIMARY AND DOMINANT REQUIREMENT IN THE ADMINISTRATION OF JUSTICE." 
AND, IN MOORE V. DEMPSEY, 261 U.S. 86, 90-91, IT WAS HELD THAT THE
ATMOSPHERE IN AND AROUND THE COURTROOM MIGHT BE SO HOSTILE AS TO
INTERFERE WITH THE TRIAL PROCESS, EVEN THOUGH AN EXAMINATION OF THE
RECORD DISCLOSED THAT ALL THE FORMS OF TRIAL CONFORMED TO THE
REQUIREMENTS OF LAW:  THE DEFENDANT HAD COUNSEL, THE JURY MEMBERS
STATED THEY WERE IMPARTIAL, THE JURY WAS CORRECTLY CHARGED, AND THE
EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT.  MOREOVER, IN IRVIN V.
DOWD, 366 U.S. 717, A CONVICTION WAS REVERSED WHERE EXTENSIVE PRETRIAL
PUBLICITY RENDERED A FAIR TRIAL UNLIKELY DESPITE THE OBSERVANCE OF THE
FORMAL REQUISITES OF A LEGAL TRIAL.  WE COMMENTED IN THAT CASE: 

"NO DOUBT EACH JUROR WAS SINCERE WHEN HE SAID THAT HE WOULD BE FAIR
AND IMPARTIAL TO PETITIONER, BUT THE PSYCHOLOGICAL IMPACT REQUIRING
SUCH A DECLARATION BEFORE ONE'S FELLOWS IS OFTEN ITS FATHER."   ID., AT
728. 

TO RECOGNIZE THAT DISORDER CAN CONVERT A TRIAL INTO A RITUAL WITHOUT
MEANING IS NOT TO PAY HOMAGE TO ORDER AS AN END IN ITSELF.  RATHER, IT
RECOGNIZES THAT THE COURTROOM IN ANGLO-AMERICAN JURISPRUDENCE IS MORE
THAN A LOCATION WITH SEATS FOR A JUDGE, JURY, WITNESSES, DEFENDANT,
PROSECUTOR, DEFENSE COUNSEL AND PUBLIC OBSERVERS; THE SETTING THAT THE
COURTROOM PROVIDES IS ITSELF AN IMPORTANT ELEMENT IN THE CONSTITUTIONAL
CONCEPTION OF TRIAL, CONTRIBUTING A DIGNITY ESSENTIAL TO "THE INTEGRITY
OF THE TRIAL" PROCESS.  CRAIG V. HARNEY, 331 U.S. 367, 377.  AS MR.
JUSTICE BLACK SAID, IN ANOTHER CONTEXT:  "THE VERY PURPOSE OF A COURT
SYSTEM IS TO ADJUDICATE CONTROVERSIES, BOTH CRIMINAL AND CIVIL, IN THE
CALMNESS AND SOLEMNITY OF THE COURTROOM ACCORDING TO LEGAL
PROCEDURES."  (FN21)  IN LIGHT OF THIS FUNDAMENTAL CONCEPTION OF WHAT
THE TERM TRIAL MEANS, THIS COURT HAS RECOGNIZED THAT OFTEN, DESPITE
WIDESPREAD, HOSTILE PUBLICITY ABOUT A CASE, IT IS POSSIBLE TO CONDUCT A
TRIAL MEETING CONSTITUTIONAL STANDARDS.  SIGNIFICANTLY, IN EACH OF
THESE CASES, THE BASIC PREMISE BEHIND THE COURT'S CONCLUSION HAS BEEN
THE NOTION THAT JUDICIAL PROCEEDINGS CAN BE CONDUCTED WITH DIGNITY AND
INTEGRITY SO AS TO SHIELD THE TRIAL PROCESS ITSELF FROM THESE
IRRELEVANT, EXTERNAL FACTORS, RATHER THAN TO AGGRAVATE THEM AS HERE. 
THUS, IN REVERSING CONTEMPT CONVICTIONS FOR OUT-OF-COURT STATEMENTS,
THIS COURT REFERRED TO "THE POWER OF COURTS TO PROTECT THEMSELVES FROM
DISTURBANCES AND DISORDER IN THE COURT ROOM," BRIDGES V. CALIFORNIA,
314 U.S. 252, 266; "THE NECESSITY FOR FAIR ADJUDICATION, FREE FROM
INTERRUPTION OF ITS PROCESSES," PENNEKAMP V. FLORIDA, 328 U.S. 331,
336; "THE INTEGRETY OF THE TRIAL," CRAIG V. HARNEY, 331 U.S. 367, 377. 
AND, IN UPHOLDING A CONVICTION AGAINST A CLAIM OF UNFAVORABLE
PUBLICITY, THIS COURT COMMENTED "THAT PETITIONER'S TRIAL WAS CONDUCTED
IN A CALM JUDICIAL MANNER," DARCY V. HANDY, 351 U.S. 454, 463. 

SIMILARLY, WHEN STATE PROCEDURES HAVE BEEN FOUND TO THWART THE
PURPOSE OF TRIAL THIS COURT HAS DECLARED THOSE PROCEDURES TO BE
UNCONSTITUTIONAL.  IN TUMEY V. OHIO, 273 U.S. 510, THE COURT CONSIDERED
A STATE PROCEDURE UNDER WHICH JUDGES WERE PAID FOR PRESIDING OVER A
CASE ONLY IF THE DEFENDANT WAS FOUND GUILTY AND COSTS ASSESSED AGAINST
HIM.  AN ARGUMENT WAS MADE THAT THE PRACTICE SHOULD NOT BE CONDEMNED
BROADLY, SINCE SOME JUDGES UNDOUBTEDLY WOULD NOT LET THEIR JUDGMENT BE
AFFECTED BY SUCH AN ARRANGEMENT.  HOWEVER, THE COURT FOUND THE
PROCEDURE SO INCONSISTENT WITH THE CONCEPTION OF WHAT A TRIAL SHOULD BE
AND SO LIKELY TO PRODUCE PREJUDICE THAT IT DECLARED THE PRACTICE
UNCONSTITUTIONAL EVEN THOUGH NO SPECIFIC PREJUDICE WAS SHOWN. 

IN LYONS V. OKLAHOMA, 322 U.S. 596, THIS COURT STATED THAT IF AN
INVOLUNTARY CONFESSION IS INTRODUCED INTO EVIDENCE AT A STATE TRIAL THE
CONVICTION MUST BE REVERSED, EVEN THOUGH THERE IS OTHER EVIDENCE IN THE
RECORD TO JUSTIFY A VERDICT OF GUILTY.  WE EXPLAINED THE RATIONALE
BEHIND THIS JUDGMENT IN PAYNE V. ARKANSAS, 356 U.S. 560, 568: 

"WHERE  ...  A COERCED CONFESSION CONSTITUTES A PART OF THE EVIDENCE
BEFORE THE JURY AND A GENERAL VERDICT IS RETURNED, NO ONE CAN SAY WHAT
CREDIT AND WEIGHT THE JURY GAVE TO THE CONFESSION." 

SIMILAR REASONING LED TO THE DECISION LAST TERM IN JACKSON V. DENNO,
378 U.S. 368.  WE HELD THERE THAT WHEN THE VOLUNTARINESS OF A
CONFESSION IS AT ISSUE THERE MUST BE A PROCEDURE ADOPTED WHICH PROVIDES
"A RELIABLE AND CLEARCUT DETERMINATION OF  ...  VOLUNTARINESS."  ID.,
AT 391.  WE FOUND INSUFFICIENT A PROCEDURE WHEREBY THE JURY HEARD THE
CONFESSION BUT WAS INSTRUCTED TO DISREGARD IT IF THE JURY FOUND THE
CONFESSION INVOLUNTARY: 

"THE NEW YORK PROCEDURE POSES SUBSTANTIAL THREATS TO A DEFENDANT'S
CONSTITUTIONAL RIGHTS TO HAVE AN INVOLUNTARY CONFESSION ENTIRELY
DISREGARDED AND TO HAVE THE COERCION ISSUE FAIRLY AND RELIABLY
DETERMINED.  THESE HAZARDS WE CANNOT IGNORE."  ID., AT 389. 

EARLIER THIS TERM, IN TURNER V. LOUISIANA, 379 U.S. 466, WE
CONSIDERED A CASE IN WHICH DEPUTY SHERIFFS, WHO WERE THE PROSECUTION'S
PRINCIPAL WITNESSES, WERE IN CHARGE OF A SEQUESTERED JURY DURING THE
TRIAL.  THE SUPREME COURT OF LOUISIANA CRITICIZED THE PRACTICE BUT SAID
THAT IN THE ABSENCE OF A SHOWING OF PREJUDICE THERE WAS NO GROUND FOR
REVERSAL.  WE REVERSED BECAUSE THE "EXTREME PREJUDICE INHERENT" IN THE
PRACTICE REQUIRED ITS CONDEMNATION ON CONSTITUTIONAL GROUNDS. 

FINALLY, THE COURT HAS ON NUMEROUS OTHER OCCASIONS REVERSED
CONVICTIONS, WHERE THE FORMALITIES OF TRIAL WERE OBSERVED, BECAUSE OF
PRACTICES THAT NEGATE THE FUNDAMENTAL CONCEPTION OF TRIAL.  (FN22) 

THIS LINE OF CASES DOES NOT INDICATE A DISREGARD FOR THE POSITION OF
THE STATES IN OUR FEDERAL SYSTEM.  RATHER, IT STANDS FOR THE
PROPOSITION THAT THE CRIMINAL TRIAL UNDER OUR CONSTITUTION HAS A
CLEARLY DEFINED PURPOSE, TO PROVIDE A FAIR AND RELIABLE DETERMINATION
OF GUILT, AND NO PROCEDURE OR OCCURRENCE WHICH SERIOUSLY THREATENS TO
DIVERT IT FROM THAT PURPOSE CAN BE TOLERATED. 

                      III. 

FOR THE CONSTITUTION TO HAVE VITALITY, THIS COURT MUST BE ABLE TO
APPLY ITS PRINCIPLES TO SITUATIONS THAT MAY NOT HAVE BEEN FORESEEN AT
THE TIME THOSE PRINCIPLES WERE ADOPTED.  AS WAS SAID IN WEEMS V. UNITED
STATES, 217 U.S. 349, 373, AND REAFFIRMED IN BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, 492-493: 

"LEGISLATION, BOTH STATUTORY AND CONSTITUTIONAL, IS ENACTED, IT IS
TRUE, FROM AN EXPERIENCE OF EVILS, BUT ITS GENERAL LANGUAGE SHOULD NOT,
THEREFORE, BE NECESSARILY CONFINED TO THE FORM THAT EVIL HAD
THERETOFORE TAKEN.  TIME WORKS CHANGES, BRINGS INTO EXISTENCE NEW
CONDITIONS AND PURPOSES.  THEREFORE A PRINCIPLE TO BE VITAL MUST BE
CAPABLE OF WIDER APPLICATION THAN THE MISCHIEF WHICH GAVE IT BIRTH  ...
.  IN THE APPLICATION OF A CONSTITUTION, THEREFORE, OUR CONTEMPLATION
CANNOT BE ONLY OF WHAT HAS BEEN BUT OF WHAT MAY BE.  UNDER ANY OTHER
RULE A CONSTITUTION WOULD INDEED BE AS EASY OF APPLICATION AS IT WOULD
BE DEFICIENT IN EFFICACY AND POWER.  ITS GENERAL PRINCIPLES WOULD HAVE
LITTLE VALUE AND BE CONVERTED BY PRECEDENT INTO IMPOTENT AND LIFELESS
FORMULAS.  RIGHTS DECLARED IN WORDS MIGHT BE LOST IN REALITY."    I
BELIEVE THAT IT VIOLATES THE SIXTH AMENDMENT FOR FEDERAL COURTS AND THE
FOURTEENTH AMENDMENT FOR STATE COURTS TO ALLOW CRIMINAL TRIALS TO BE
TELEVISED TO THE PUBLIC AT LARGE.  I BASE THIS CONCLUSION ON THREE
GROUNDS:  (1) THAT THE TELEVISING OF TRIALS DIVERTS THE TRIAL FROM ITS
PROPER PURPOSE IN THAT IT HAS AN INEVITABLE IMPACT ON ALL THE TRIAL
PARTICIPANTS; (2) THAT IT GIVES THE PUBLIC THE WRONG IMPRESSION ABOUT
THE PURPOSE OF TRIALS, THEREBY DETRACTING FROM THE RELIABILITY OF
TRIALS; AND (3) THAT IT SINGLES OUT CERTAIN DEFENDANTS AND SUBJECTS
THEM TO TRIALS UNDER PREJUDICIAL CONDITIONS NOT EXPERIENCED BY OTHERS. 

I HAVE ATTEMPTED TO SHOW THAT OUR COMMON-LAW HERITAGE, OUR
CONSTITUTION, AND OUR EXPERIENCE IN APPLYING THAT CONSTITUTION HAVE
COMMITTED US IRREVOCABLY TO THE POSITION THAT THE CRIMINAL TRIAL HAS
ONE WELL-DEFINED PURPOSE - TO PROVIDE A FAIR AND RELIABLE DETERMINATION
OF GUILT.  IN TUMEY V. OHIO, SUPRA, AT 532, THIS COURT CONDEMNED THE
PROCEDURE THERE EMPLOYED FOR COMPENSATING JUDGES BECAUSE IT OFFERED A
"POSSIBLE TEMPTATION" TO JUDGES "NOT TO HOLD THE BALANCE NICE, CLEAR
AND TRUE BETWEEN THE STATE AND THE ACCUSED."  HOW MUCH MORE HARMFUL IS
A PROCEDURE WHICH NOT ONLY OFFERS THE TEMPTATION TO JUDGES TO USE THE
BENCH AS A VEHICLE FOR THEIR OWN ENDS, BUT OFFERS THE SAME TEMPTATION
TO EVERY PARTICIPANT IN THE TRIAL, BE HE DEFENSE COUNSEL, PROSECUTOR,
WITNESS OR JUROR]  IT IS NOT NECESSARY TO SPEAK IN THE ABSTRACT ON THIS
POINT.  IN THE PRESENT CASE, ON OCTOBER 1, THE TRIAL JUDGE INVITED THE
TELEVISION CAMERAS INTO HIS CHAMBERS SO THEY COULD TAKE FILMS OF HIM
READING ONE OF HIS PRETRIAL ORDERS.  ON THIS OCCASION, AT LEAST, THE
TRIAL JUDGE CLEARLY TOOK THE INITIATIVE IN PLACING HIMSELF BEFORE THE
TELEVISION AUDIENCE AND IN GIVING HIS ORDER, AND HIMSELF, THE MAXIMUM
POSSIBLE PUBLICITY.   MOREOVER, ON OCTOBER 22, WHEN TRIAL COUNSEL
RENEWED HIS MOTION TO EXCLUDE TELEVISION FROM THE COURTROOM ON THE
GROUND THAT IT VIOLATED PETITIONER'S RIGHTS UNDER THE FEDERAL
CONSTITUTION, THE TRIAL JUDGE MADE THE FOLLOWING SPEECH: 

"THIS CASE IS NOT BEING TRIED UNDER THE FEDERAL CONSTITUTION.  THIS
DEFENDANT HAS BEEN BROUGHT INTO THIS COURT UNDER THE STATE LAWS, UNDER
THE STATE CONSTITUTION. 

     *         *         * *         * 

"I TOOK AN OATH TO UPHOLD THIS CONSTITUTION; NOT THE FEDERAL
CONSTITUTION BUT THE STATE CONSTITUTION; AND I AM GOING TO DO MY BEST
TO DO THAT AS LONG AS I PRESIDE ON THIS COURT, AND IF IT IS DISTASTEFUL
IN FOLLOWING MY OATH AND UPHOLDING THE CONSTITUTION, IT WILL JUST HAVE
TO BE DISTASTEFUL." 

ONE IS ENTITLED TO WONDER IF SUCH A STATEMENT WOULD BE MADE IN A
COURT OF JUSTICE BY ANY STATE TRIAL JUDGE EXCEPT AS AN APPEAL
CALCULATED TO GAIN THE FAVOR OF HIS VIEWING AUDIENCE.  I FIND IT
DIFFICULT TO BELIEVE THAT THIS TRIAL JUDGE, WITH OVER 20 YEARS'
EXPERIENCE ON THE BENCH, WAS UNFAMILIAR WITH THE FUNDAMENTAL DUTY
IMPOSED ON HIM BY ARTICLE VI OF THE CONSTITUTION OF THE UNITED STATES. 

"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 CONSTITUTION
NOTWITHSTANDING." 

THIS IS NOT TO SAY THAT ALL PARTICIPANTS IN THE TRIAL WOULD DISTORT
IT BY DELIBERATLY PLAYING TO THE TELEVISION AUDIENCE, BUT SOME
UNDOUBTEDLY WOULD.  THE EVEN MORE SERIOUS DANGER IS THAT NEITHER THE
JUDGE, PROSECUTOR, DEFENSE COUNSEL, JURORS OR WITNESSES WOULD BE ABLE
TO GO THROUGH TRIAL WITHOUT CONSIDERING THE EFFECT OF THEIR CONDUCT ON
THE VIEWING PUBLIC.  IT IS ADMITTED IN DISSENT THAT "IF THE SCENE AT
THE SEPTEMBER HEARING HAD BEEN REPEATED IN THE COURTROOM DURING THIS
JURY TRIAL, IT IS DIFFICULT TO CONCEIVE HOW A FAIR TRIAL IN THE
CONSTITUTIONAL SENSE COULD HAVE BEEN AFFORDED THE DEFENDANT."  POST, P.
612.  BUT IT IS CONTENDED THAT WHAT WENT ON AT THE SEPTEMBER HEARING IS
IRRELEVANT TO THE ISSUE BEFORE US.  WITH THIS I CANNOT AGREE.  WE
GRANTED CERTIORARI TO CONSIDER WHETHER PETITIONER WAS DENIED DUE
PROCESS WHEN HE WAS REQUIRED TO SUBMIT TO A TELEVISED TRIAL.  IN THIS,
AS IN OTHER CASES INVOLVING RIGHTS UNDER THE DUE PROCESS CLAUSE, WE
HAVE AN OBLIGATION TO MAKE AN INDEPENDENT EXAMINATION OF THE RECORD,
E.G., WATTS V. INDIANA, 338 U.S. 49, 51; NORRIS V. ALABAMA, 294 U.S.
587, 590; AND THE LIMITED GRANT OF CERTIORARI DOES NOT PROHIBIT US FROM
CONSIDERING ALL THE FACTS IN THIS RECORD RELEVANT TO THE QUESTION
BEFORE US.  THE PARTIES TO THIS CASE, AND THOSE WHO FILED BRIEFS AS
AMICI CURIAE, RECOGNIZE THIS, SINCE THEY TREAT THE TELEVISING OF THE
SEPTEMBER PROCEEDINGS AS A FACTOR RELEVANT TO OUR CONSIDERATION.  OUR
DECISIONS IN WHITE V. MARYLAND, 373 U.S. 59, AND HAMILTON V. ALABAMA,
368 U.S. 52, CLEARLY HOLD THAT AN ACCUSED IS ENTITLED TO PROCEDURAL
PROTECTIONS AT PRETRIAL HEARINGS AS WELL AS AT ACTUAL TRIAL AND HIS
CONVICTION WILL BE REVERSED IF HE IS NOT ACCORDED THESE PROTECTIONS. 
IN ADDITION, IN POINTER V. TEXAS, 380 U.S. 400, WE HELD THAT A PRETRIAL
HEARING CAN HAVE A PROFOUND EFFECT ON THE TRIAL ITSELF AND EFFECTIVELY
PREVENT AN ACCUSED FROM HAVING A FAIR TRIAL.  PETITIONER CLEARLY DID
NOT HAVE A FAIR DETERMINATION OF HIS MOTION TO EXCLUDE CAMERAS FROM THE
COURTROOM.  THE VERY PRESENCE OF THE CAMERAS AT THE SEPTEMBER HEARING
TENDED TO IMPRESS UPON THE TRIAL JUDGE THE POWER OF THE COMMUNICATIONS
MEDIA AND THE CRITICISM TO WHICH HE WOULD HAVE BEEN SUBJECTED IF HE HAD
RULED THAT THE PRESENCE OF THE CAMERAS WAS INCONSISTENT WITH
PETITIONER'S RIGHT TO A FAIR TRIAL.  THE PREJUDICE TO PETITIONER DID
NOT END HERE.  MOST OF THE TRIAL PARTICIPANTS WERE PRESENT AT THE
SEPTEMBER HEARING - THE JUDGE, DEFENSE COUNSEL, PROSECUTOR, PROSECUTION
WITNESSES AND DEFENDANT HIMSELF - AND THEY SAW FOR THEMSELVES THE
DESECRATION OF THE COURTROOM.  AFTER UNDERGOING THIS EXPERIENCE IT IS
UNREALISTIC TO SUPPOSE THAT THEY WOULD COME TO THE OCTOBER TRIAL
UNAWARE THAT COURT PROCEDURES WERE BEING SACRIFICED IN THIS CASE FOR
THE CONVENIENCE OF TELEVISION.  THE MANNER IN WHICH THE OCTOBER
PROCEEDINGS WERE CONDUCTED ONLY INTENSIFIED THIS AWARENESS.  IT WAS
IMPOSSIBLE FOR ANY OF THE TRIAL PARTICIPANTS EVER TO BE UNAWARE OF THE
PRESENCE OF TELEVISION CAMERAS IN COURT FOR THE ACTUAL TRIAL.   (FN23)
THE SNOUTS OF THE FOUR TELEVISION CAMERAS PROTRUDED THROUGH THE OPENING
IN THE BOOTH, AND THE CAMERAS AND THEIR OPERATORS WERE NOT ONLY READILY
VISIBLE BUT WERE IMPOSSIBLE TO IGNORE BY ALL WHO WERE SURVEYING THE
ACTIVITIES IN THIS SMALL COURTROOM.  NO ONE COULD FORGET THAT HE WAS
CONSTANTLY IN THE FOCUS OF THE "ALL-SEEING EYE."  ALTHOUGH THE LAW OF
TEXAS PURPORTEDLY PERMITS WITNESSES TO OBJECT TO BEING TELEVISED, IT IS
LUDICROUS TO PLACE THIS BURDEN ON THEM.  THEY WOULD NATURALLY ACCEPT
THE CONDITIONS OF THE COURTROOM AS THE JUDGE ESTABLISHES THEM, AND FEEL
THAT IT WOULD BE AS PRESUMPTUOUS FOR THEM TO OBJECT TO THE COURT'S
PERMITTING TELEVISION AS TO OBJECT TO THE COURT REPORTER'S RECORDING
THEIR TESTIMONY.  YET, IT IS ARGUED THAT NO WITNESSES OBJECTED TO BEING
TELEVISED.  THIS IS INDEED A SLENDER REED TO RELY ON, PARTICULARLY IN
VIEW OF THE TRIAL JUDGE'S FAILURE, IN THE COURSE OF HIS SELF
EXCULPATING STATEMENTS JUSTIFYING HIS DECISION TO ALLOW TELEVISION, TO
ADVISE THE WITNESSES OR THE JURORS THAT THEY HAD THE RIGHT TO OBJECT TO
BEING TELEVISED.  DEFENSE COUNSEL, HOWEVER, STATED FORCEFULLY THAT HE
COULD NOT CONCENTRATE ON THE CASE BECAUSE OF THE DISTRACTION CAUSED BY
THE CAMERAS.  AND THE TRIAL JUDGE'S ATTENTION WAS DISTRACTED FROM THE
TRIAL SINCE HE WAS COMPELLED TO MAKE SEVEN EXTENSIVE RULINGS CONCERNING
TELEVISION COVERAGE DURING THE OCTOBER PROCEEDINGS ALONE, WHEN HE
SHOULD, INSTEAD, HAVE BEEN CONCENTRATING ON THE TRIAL ITSELF. 

IT IS COMMON KNOWLEDGE THAT "TELEVISION  ...  CAN  ...  WORK PROFOUND
CHANGES IN THE BEHAVIOR OF THE PEOPLE IT FOCUSES ON."  (FN24)  THE
PRESENT RECORD PROVIDES AMPLE SUPPORT FOR SCHOLARS WHO HAVE CLAIMED
THAT AWARENESS THAT A TRIAL IS BEING TELEVISED TO A VAST, BUT UNSEEN
AUDIENCE, IS BOUND TO INCREASE NERVOUSNESS AND TENSION, (FN25) CAUSE AN
INCREASED CONCERN ABOUT APPEARANCES, (FN26) AND BRING TO THE SURFACE
LATENT OPPORTUNISM THAT THE TRADITIONAL DIGNITY OF THE COURTROOM WOULD
DISCOURAGE.  WHETHER THEY DO SO CONSCIOUSLY OR SUBCONSCIOUSLY, ALL
TRIAL PARTICIPANTS ACT DIFFERENTLY IN THE PRESENCE OF TELEVISION
CAMERAS.  AND, EVEN IF ALL PARTICIPANTS MAKE A CONSCIENTIOUS AND
STUDIED EFFORT TO BE UNAFFECTED BY THE PRESENCE OF TELEVISION, THIS
EFFORT IN ITSELF PREVENTS THEM FROM GIVING THEIR FULL ATTENTION TO
THEIR PROPER FUNCTIONS AT TRIAL.  THUS, THE EVIL OF TELEVISED TRIALS,
AS DEMONSTRATED BY THIS CASE, LIES NOT IN THE NOISE AND APPEARANCE OF
THE CAMERAS, BUT IN THE TRIAL PARTICIPANTS' AWARENESS THAT THEY ARE
BEING TELEVISED.  TO THE EXTENT THAT TELEVISION HAS SUCH AN INEVITABLE
IMPACT IT UNDERCUTS THE RELIABILITY OF THE TRIAL PROCESS. 

IN THE EARLY DAYS OF THIS COUNTRY'S DEVELOPMENT, THE ENTERTAINMENT A
TRIAL MIGHT PROVIDE OFTEN TENDED TO OBFUSCATE ITS PROPER ROLE. 

"THE PEOPLE THOUGHT HOLDING COURT ONE OF THE GREATEST PERFORMANCES IN
THE RANGE OF THEIR EXPERIENCE  ...  .  THE COUNTRY FOLKS WOULD CROWD IN
FOR TEN MILES TO HEAR THESE 'GREAT LAWYERS' PLEAD; AND IT WAS A
SECONDARY MATTER WITH THE CLIENT WHETHER HE WON OR LOST HIS CASE, SO
THE 'PLEADING' WAS LOUD AND LONG."  (FN27) 

"IN EARLY FRONTIER AMERICA, WHEN NO MOTION PICTURES, NO TELEVISION,
AND NO RADIO PROVIDED ENTERTAINMENT, TRIAL DAY IN THE COUNTRY WAS LIKE
FAIR DAY, AND FROM NEAR AND FAR CITIZENS YOUNG AND OLD CONVERGED ON THE
COUNTY SEAT.  THE CRIMINAL TRIAL WAS THE THEATER AND SPECTACULUM OF OLD
RURAL AMERICA.  APPLAUSE AND CAT CALLS WERE NOT INFREQUENT.  ALL TOO
EASILY LAWYERS AND JUDGES BECAME PART-TIME ACTORS AT THE BAR  ...  ." 
(FN28) 

I HAD THOUGHT THAT THESE DAYS OF FRONTIER JUSTICE WERE LONG BEHIND
US, BUT THE COURTS BELOW WOULD RETURN THE THEATER TO THE COURTROOM. 

THE TELEVISING OF TRIALS WOULD CAUSE THE PUBLIC TO EQUATE THE TRIAL
PROCESS WITH THE FORMS OF ENTERTAINMENT REGULARLY SEEN ON TELEVISION
AND WITH THE COMMERICAL OBJECTIVES OF THE TELEVISION INDUSTRY.  IN THE
PRESENT CASE, TAPES OF THE SEPTEMBER 24 HEARING WERE RUN IN PLACE OF
THE "TONIGHT SHOW" BY ONE STATION AND IN PLACE OF THE LATE NIGHT MOVIE
BY ANOTHER.  COMMERICALS FOR SOFT DRINKS, SOUPS, EYEDROPS AND
SEATCOVERS WERE INSERTED WHEN THERE WAS A PAUSE IN THE PROCEEDINGS.  IN
ADDITION, IF TRIALS WERE TELEVISED THERE WOULD BE A NATURAL TENDENCY ON
THE PART OF BROADCASTERS TO DEVELOP THE PERSONALITIES OF THE TRIAL
PARTICIPANTS, SO AS TO GIVE THE PROCEEDINGS MORE OF AN ELEMENT OF
DRAMA.  THIS TENDENCY WAS NOTICEABLE IN THE PRESENT CASE.  TELEVISION
COMMENTATORS GAVE THE VIEWING AUDIENCE A HOMEY, FLATTERING SKETCH ABOUT
THE TRIAL JUDGE, OBVIOUSLY TO ADD AN EXTRA ELEMENT OF VIEWER APPEAL TO
THE TRIAL: 

"TOMORROW MORNING AT 9:55 THE WFAA T.V. CAMERAS WILL BE IN TYLER TO
TELECAST LIVE THE TRIAL JUDGE'S DECISION WHETHER OR NOT HE WILL PERMIT
LIVE COVERAGE OF THE BILLIE SOL ESTES TRIAL.  IF SO, THIS WILL BE THE
FIRST SUCH FAMOUS NATIONAL CRIMINAL PROCEEDING TO BE TELEVISED IN ITS
ENTIRETY LIVE.  THE TRIAL JUDGE WAS APPOINTED TO THE BENCH HERE IN
TYLER IN 1942 BY THE GOVERNOR.  THE JUDGE HAS SERVED EVERY TWO YEARS
SINCE THEN.  THIS VERY BEAUTIFUL SMITH COUNTY COURTHOUSE WAS BUILT AND
DEDICATED IN 1954, BUT BEFORE THAT THE TRIAL JUDGE HAD MADE A
REPUTATION FOR HIMSELF THAT REACHED NOT ONLY THROUGHOUT TEXAS, BUT
THROUGHOUT THE UNITED STATES AS WELL.  IT IS SAID THAT THE TRIAL JUDGE,
WHO IS 53 YEARS OLD, HAS TRIED MORE CASES THAN ANY OTHER JUDGE DURING
HIS TIME IN OFFICE." 

THE TELEVISION INDUSTRY MIGHT ALSO DECIDE THAT THE BAREBONED TRIAL
ITSELF DOES NOT CONTAIN SUFFICIENT DRAMA TO SUSTAIN AN AUDIENCE.  IT
MIGHT PROVIDE EXPERT COMMENTARY ON THE PROCEEDINGS AND HIRE PERSONS
WITH LEGAL BACKGROUNDS TO ANTICIPATE POSSIBLE TRIAL STRATEGY, AS THE
FOOTBALL EXPERT ANTICIPATES PLAYS FOR HIS AUDIENCE.  THE TRIAL JUDGE
HIMSELF STATED AT THE SEPTEMBER HEARING THAT IF HE WANTED TO SEE A BALL
GAME HE WOULD TURN ON HIS TELEVISION SET, SO WHY NOT THE SAME FOR A
TRIAL. 

MOREOVER, SHOULD TELEVISION BECOME AN ACCEPTED PART OF THE COURTROOM,
GREATER SACRIFICES WOULD BE MADE FOR THE BENEFIT OF BROADCASTERS.  IN
THE PRESENT CASE CONSTRUCTION OF A TELEVISION BOOTH IN THE COURTROOM
MADE IT NECESSARY TO ALTER THE PHYSICAL LAYOUT OF THE COURTROOM AND TO
MOVE FROM THEIR ACCUSTOMED POSITION TWO BENCHES RESERVED FOR
SPECTATORS.  (FN29)  IF THIS CAN BE DONE IN ORDER BETTER TO ACCOMODATE
THE TELEVISION INDUSTRY, I SEE NO REASON WHY ANOTHER COURT MIGHT NOT
MOVE A TRIAL TO A THEATER, IF SUCH A MOVE WOULD PROVIDE IMPROVED
TELEVISION COVERAGE.  OUR MEMORIES ARE SHORT INDEED IF WE HAVE ALREADY
FORGOTTEN THE WAVE OF HORROR THAT SWEPT OVER THIS COUNTRY WHEN PREMIER
FIDEL CASTRO CONDUCTED HIS PROSECUTIONS BEFORE 18,000 PEOPLE IN HAVANA
STADIUM.  (FN30)  BUT IN THE DECISION BELOW, WHICH COMPLETELY IGNORES
THE IMPORTANCE OF THE COURTROOM IN THE TRIAL PROCESS, WE HAVE THE
BEGINNINGS OF A SIMILAR APPROACH TOWARD CRIMINAL "JUSTICE."  THIS IS
NOT AN ABSTRACT FEAR I AM EXPRESSING BECAUSE THIS VERY SITUATION
CONFRONTED THE NEBRASKA SUPREME COURT IN ROBERTS V. STATE, 100 NEB.
199, 203, 158 N.W. 930, 931-932 (1916):    "THE COURT REMOVED THE TRIAL
FROM THE COURT-ROOM TO THE THEATER, AND STATED AS A REASON THEREFOR:
'BY REASON OF THE INSUFFICIENCY OF THE COURT-ROOM TO SEAT AND
ACCOMMODATE THE PEOPLE APPLYING FOR ADMISSION  ...  IT IS BY THE COURT
ORDERED THAT THE FURTHER TRIAL OF THIS CAUSE BE HAD AT THE KEITH
THEATER, WHERE TRIAL PROCEEDED.'  THE STAGE WAS OCCUPIED BY COURT,
COUNSEL, JURY, WITNESSES, AND OFFICERS CONNECTED WITH THE TRIAL.  THE
THEATER PROPER WAS CROWDED WITH CURIOUS SPECTATORS.  BEFORE THE TRIAL
WAS COMPLETED IT WAS RETURNED TO THE COURT-ROOM AND CONCLUDED THERE. 
AT THE ADJOURNMENT OF COURT ON ONE OCCASION THE BAILIFF ANNOUNCED FROM
THE STAGE:  'THE REGULAR SHOW WILL BE TOMORROW; MATINEE IN THE
AFTERNOON AND ANOTHER PERFORMANCE AT 8:30.  COURT IS NOW ADJOURNED
UNTIL 7:30.'" 

THERE WOULD BE A REAL THREAT TO THE INTEGRITY OF THE TRIAL PROCESS IF
THE TELEVISION INDUSTRY AND TRIAL JUDGES WERE ALLOWED TO BECOME
PARTNERS IN THE STAGING OF CRIMINAL PROCEEDINGS.  THE TRIAL JUDGE IN
THE CASE BEFORE US HAD SEVERAL "CONFERENCES WITH REPRESENTATIVES OF THE
NEWS MEDIA."  POST, P. 606.  HE THEN ENTERED INTO A JOINT ENTERPRISE
WITH A TELEVISION STATION FOR THE CONSTRUCTION OF A BOOTH IN HIS
COURTROOM.  THE NEXT LOGICAL STEP IN THIS PARTNERSHIP MIGHT BE TO
SCHEDULE THE TRIAL FOR A TIME THAT WOULD PERMIT THE MAXIMUM NUMBER OF
VIEWERS TO WATCH AND TO SCHEDULE RECESSES TO COINCIDE WITH THE NEED FOR
STATION BREAKS.  SHOULD THE TELEVISION INDUSTRY BECOME AN INTREGAL PART
OF OUR SYSTEM OF CRIMINAL JUSTICE, IT WOULD NOT BE UNNATURAL FOR THE
PUBLIC TO ATTRIBUTE THE SHORTCOMINGS OF THE INDUSTRY TO THE TRIAL
PROCESS ITSELF.  THE PUBLIC IS AWARE OF THE TELEVISION INDUSTRY'S
CONSUMING INTEREST IN RATINGS, AND IT IS ALSO AWARE OF THE STEPS THAT
HAVE BEEN TAKEN IN THE PAST TO MAINTAIN VIEWER INTEREST IN TELEVISION
PROGRAMS.  MEMORIES STILL RECALL VIVIDLY THE SCANDAL CAUSED BY THE
DISCLOSURE THAT QUIZ PROGRAMS HAD BEEN CORRUPTED IN ORDER TO HEIGHTEN
THEIR DRAMATIC APPEAL.  CAN WE BE SURE THAT SIMILAR EFFORTS WOULD NOT
BE MADE TO HEIGHTEN THE DRAMATIC APPEAL OF TELEVISED TRIALS?  CAN WE BE
SURE THAT THE PUBLIC WOULD NOT INHERENTLY DISTRUST OUR SYSTEM OF
JUSTICE BECAUSE OF ITS INTIMATE ASSOCIATION WITH A COMMERCIAL
ENTERPRISE? 

BROADCASTING IN THE COURTROOM WOULD GIVE THE TELEVISION INDUSTRY AN
AWESOME POWER TO CONDITION THE PUBLIC MIND EITHER FOR OR AGAINST AN
ACCUSED.  BY SHOWING ONLY THOSE PARTS OF ITS FILMS OR TAPES WHICH
DEPICT THE DEFENDANT OR HIS WITNESSES IN AN AWKWARD OR UNATTRACTIVE
POSITION, TELEVISION DIRECTORS COULD GIVE THE COMMUNITY, STATE OR
COUNTRY A FALSE AND UNFAVORABLE IMPRESSION OF THE MAN ON TRIAL. 
MOREOVER, IF THE CASE SHOULD END IN A MISTRIAL, THE SHOWING OF SELECTED
PORTIONS OF THE TRIAL, OR EVEN OF THE WHOLE TRIAL, WOULD MAKE IT ALMOST
IMPOSSIBLE TO SELECT AN IMPARTIAL JURY FOR A SECOND TRIAL.  CF. RIDEAU
V. LOUISIANA, 373 U.S. 723.  TO PERMIT THIS POWERFUL MEDIUM TO USE THE
TRIAL PROCESS ITSELF TO INFLUENCE THE OPINIONS OF VAST NUMBERS OF
PEOPLE, BEFORE A VERDICT OF GUILT OR INNOCENCE HAS BEEN RENDERED, WOULD
BE ENTIRELY FOREIGN TO OUR SYSTEM OF JUSTICE. 

THE SENSE OF FAIRNESS, DIGNITY AND INTEGRITY THAT ALL ASSOCIATE WITH
THE COURTROOM WOULD BECOME LOST WITH ITS COMMERCIALIZATION.  THUS, THE
TELEVISING OF TRIALS WOULD NOT ONLY HAVE AN EFFECT ON THOSE
PARTICIPATING IN THE TRIALS THAT ARE BEING TELEVISED, BUT ALSO ON THOSE
WHO OBSERVE THE TRIALS AND LATER BECOME TRIAL PARTICIPANTS. 

IT IS ARGUED THAT TELEVISION NOT ONLY ENTERTAINS BUT ALSO EDUCATES
THE PUBLIC.  BUT THE FUNCTION OF A TRIAL IS NOT TO PROVIDE AN
EDUCATIONAL EXPERIENCE; AND THERE IS A SERIOUS DANGER THAT ANY ATTEMPT
TO USE A TRIAL AS AN EDUCATIONAL TOOL WILL BOTH DIVERT IT FROM ITS
PROPER PURPOSE AND LEAD TO SUSPICIONS CONCERNING THE INTEGRITY OF THE
TRIAL PROCESS.  THE SOVIET UNION'S TRIAL OF FRANCIS GARY POWERS
PROVIDES AN EXAMPLE IN POINT.  THE INTEGRITY OF THE TRIAL WAS SUSPECT
BECAUSE IT WAS CONCERNED NOT ONLY WITH DETERMINING THE GUILT OF THE
INDIVIDUAL ON TRIAL BUT ALSO WITH PROVIDING AN OBJECT LESSON TO THE
PUBLIC.  THIS DIVIDED EFFORT UNDERCUT CONFIDENCE IN THE GUILT
DETERMINING ASPECT OF THE PROCEDURE AND BY SO DOING RENDERED THE
EDUCATIONAL ASPECT SELF-DEFEATING. 

"WAS IT PREJUDICIAL TO POWERS THAT THE TRIAL TOOK PLACE IN A SPECIAL
HALL WITH OVER 2,000 SPECTATORS, THAT IT WAS TELEVISED, THAT PROMINENT
REPRESENTATIVES OF MANY ORGANIZATIONS IN VARIOUS COUNTRIES WERE INVITED
TO ATTEND, THAT SIMULTANEOUS ORAL TRANSLATIONS OF THE PROCEEDINGS  ...
WERE PROVIDED, AND THAT DETAILED  ...  REPORTS OF THE CASE IN VARIOUS
LANGUAGES WERE DISTRIBUTED TO THE PRESS BEFORE, DURING AND AFTER THE
TRIAL?" 

"  ...  THE SOVIET LEGAL SYSTEM  ...  CONSCIOUSLY AND EXPLICITLY USES
THE TRIAL, AND INDEED THE VERY SAFEGUARDS OF JUSTICE THEMSELVES, AS
INSTRUMENTS OF THE SOCIAL AND POLITICAL OBJECTIVES OF THE STATE  ...
. 

"  ...  A SOVIET TRIAL IS SUPPOSED TO BE CORRECT, IMPARTIAL, JUST,
REASONABLE, AND AT THE SAME TIME IT IS SUPPOSED TO SERVE AS AN OBJECT
LESSON TO SOCIETY, A MEANS OF TEACHING THE PARTICIPANTS, THE SPECTATORS
AND THE PUBLIC GENERALLY TO BE LOYAL, OBEDIENT, DISCIPLINED FIGHTERS
FOR COMMUNIST IDEALS  ...  . 

"  ...  THE TENSION BETWEEN THE DEMANDS OF JUSTICE AND THE DEMANDS OF
POLITICS CAN NEVER BE ENTIRELY ELIMINATED.  THE FATE OF THE ACCUSED IS
BOUND TO BE INFLUENCED IN ONE WAY OR ANOTHER WHEN THE TRIAL IS LIFTED
AVOVE ITS INDIVIDUAL FACTS AND DELIBERATELY MADE AN OBJECT-LESSON TO
THE PUBLIC." 

"  ...  THE DELIBERATE USE OF A TRIAL AS A MEANS OF POLITICAL
EDUCATION THREATENS THE INTEGRITY OF THE JUDICIAL PROCESS."  (FN31) 

FINALLY, IF THE TELEVISING OF CRIMINAL PROCEEDINGS WERE APPROVED,
TRIALS WOULD BE SELECTED FOR TELEVISION COVERAGE FOR REASONS HAVING
NOTHING TO DO WITH THE PURPOSE OF TRIAL.  A TRIAL MIGHT BE TELEVISED
BECAUSE A PARTICULAR JUDGE HAS GAINED THE FANCY OF THE PUBLIC BY HIS
UNORTHODOX APPROACH; OR BECAUSE THE DISTRICT ATTORNEY HAS DECIDED TO
RUN FOR ANOTHER OFFICE AND IT IS BELIEVED HIS APPEARANCE WOULD ATTRACT
A LARGE AUDIENCE; OR SIMPLY BECAUSE A PARTICULAR COURTROOM HAS A LAYOUT
THAT BEST ACCOMMODATES TELEVISION COVERAGE.  (FN32)  FOR THE MOST PART,
HOWEVER, THE MOST IMPORTANT FACTOR THAT WOULD DRAW TELEVISION TO THE
COURTROOM WOULD BE THE NATURE OF THE CASE.  THE ALLEGED PERPETRATOR OF
THE SENSATIONAL MURDER, THE FALLEN IDOL, OR SOME OTHER PERSON WHO, LIKE
PETITIONER, HAS ATTRACTED THE PUBLIC INTEREST WOULD FIND HIS TRIAL
TURNED INTO A VEHICLE FOR TELEVISION.  YET, THESE ARE THE VERY PERSONS
WHO ENCOUNTER THE GREATEST DIFFICULTY IN SECURING AN IMPARTIAL TRIAL,
EVEN WITHOUT THE PRESENCE OF TELEVISION.  THIS COURT WOULD NO LONGER BE
ABLE TO POINT TO THE DIGNITY AND CALMNESS OF THE COURTROOM AS A
PROTECTION FROM OUTSIDE INFLUENCES.  FOR THE TELEVISION CAMERA
PENETRATES THIS PROTECTION AND BRINGS INTO THE COURTROOM TANGIBLE
EVIDENCE OF THE WIDESPREAD INTEREST IN A CASE - AN INTEREST WHICH HAS
OFTEN BEEN FANNED BY EXHAUSTIVE REPORTS IN THE NEWSPAPERS, TELEVISION
AND RADIO FOR WEEKS BEFORE TRIAL.  THE PRESENT CASE PRESENTS A CLEAR
EXAMPLE OF THIS DANGER.  IN THE WORDS OF PETITIONER'S COUNSEL: 

"THE SATURDAY EVENING POST, THE READERS DIGEST, TIME, LIFE ALL HAD
FEATURE STORIES UPON PETITIONER'S STORY GIVING IN DETAIL HIS LIFE
HISTORY AND THE DETAILS OF  ...  ALLEGED FRAUDULENT TRANSACTIONS  ...
. 

"THE METROPOLITAN PAPERS THROUGHOUT THE COUNTRY FEATURED THE STORY
DAILY.  EACH DAY FOR WEEKS THE BROADCASTS CARRIED SOME FEATURES OF THE
STORY."  (FN33) 

AFTER LIVING IN THE GLARE OF THIS PUBLICITY FOR WEEKS, PETITIONER
CAME TO COURT FOR A LEGAL ADJUDICATION OF THE CHARGES AGAINST HIM.  AS
HE APPROACHED THE COURTHOUSE HE WAS CONFRONTED BY AN ARMY OF
PHOTOGRAPHERS, REPORTERS AND TELEVISION COMMENTATORS SHOVING
MICROPHONES IN HIS FACE.  (FN34)  WHEN HE FINALLY MADE HIS WAY INTO THE
COURTHOUSE IT WAS REASONABLE FOR HIM TO EXPECT THAT HE COULD HAVE A
RESPITE FROM THIS MERCILESS BADGERING AND HAVE HIS CASE ADJUDICATED IN
A CALM ATMOSPHERE.  INSTEAD, THE CARNIVAL ATMOSPHERE OF THE SEPTEMBER
HEARING SERVED ONLY TO INCREASE THE PUBLICITY SURROUNDING PETITIONER
AND TO CONDITION FURTHER THE PUBLIC'S MIND AGAINST HIM.  THEN, UPON HIS
ENTRANCE INTO THE COURTROOM FOR HIS ACTUAL TRIAL HE WAS CONFRONTED WITH
THE SIGHT OF THE TELEVISION CAMERA ZEROED IN ON HIM AND THE EVER
PRESENT STILL PHOTOGRAPHERS SNAPPING PICTURES OF INTEREST.  AS HE
OPENED A NEWSPAPER WAITING FOR THE PROCEEDINGS TO BEGIN, THE CLOSE-UP
LENS OF A TELEVISION CAMERA ZOOMED OVER HIS SHOULDER IN AN EFFORT TO
FIND OUT WHAT HE WAS READING.  IN NO SENSE DID THE DIGNITY AND
INTEGRITY OF THE TRIAL PROCESS SHIELD THIS PETITIONER FROM THE
PREJUCICIAL PUBLICITY TO WHICH HE HAD BEEN EXPOSED, BECAUSE THAT
PUBLICITY MARCHED RIGHT THROUGH THE COURTROOM DOOR AND MADE ITSELF AT
HOME IN HERETOFORE UNFAMILIAR SURROUNDINGS.  WE STATED IN GIDEON V.
WAINWRIGHT, 372 U.S. 335, 344, "FROM THE VERY BEGINNING, OUR STATE AND
NATIONAL CONSTITUTIONS AND LAWS HAVE LAID GREAT EMPHASIS ON PROCEDURAL
AND SUBSTANTIVE SAFEGUARDS DESIGNED TO ASSURE FAIR TRIALS BEFORE
IMPARTIAL TRIBUNALS IN WHICH EVERY DEFENDANT STANDS EQUAL BEFORE THE
LAW."  THIS PRINCIPLE WAS NOT APPLIED BY THE COURTS BELOW. 

I BELIEVE PETITIONER IN THIS CASE HAS SHOWN THAT HE WAS ACTUALLY
PREJUDICED BY THE CONDUCT OF THESE PROCEEDINGS, BUT I CANNOT AGREE WITH
THOSE WHO SAY THAT A TELEVISED TRIAL DEPRIVES A DEFENDANT OF A FAIR
TRIAL ONLY IF "ACTUAL PREJUCICE" CAN BE SHOWN.  THE PREJUDICE OF
TELEVISION MAY BE SO SUBTLE THAT IT ESCAPES THE ORDINARY METHODS OF
PROOF, (FN35) BUT IT WOULD GRADUALLY ERODE OUR FUNDAMENTAL CONCEPTION
OF TRIAL.  (FN36)  A DEFENDANT MAY BE UNABLE TO PROVE THAT HE WAS
ACTUALLY PREJUDICED BY A TELEVISED TRIAL, JUST AS HE MAY BE UNABLE TO
PROVE THAT THE INTRODUCTION OF A COERCED CONFESSION AT HIS TRIAL
INFLUENCED THE JURY TO CONVICT HIM WHEN THERE WAS SUBSTANTIAL EVIDENCE
TO SUPPORT HIS CONVICTION ASIDE FROM THE CONFESSION, PAYNE V. ARKANSAS,
SUPRA; THAT THE JURY REFRAINED FROM MAKING A CLEAR-CUT DETERMINATION ON
THE VOLUNTARINESS QUESTION, JACKSON V. DENNO, SUPRA; THAT A PARTICULAR
JUDGE WAS SWAYED BY A DIRECT FINANCIAL INTEREST IN HIS CONVICTION,
TUMEY V. OHIO, SUPRA; OR THAT THE JURY GAVE ADDITIONAL WEIGHT TO THE
TESTIMONY OF CERTAIN PROSECUTION WITNESSES BECAUSE OF THE JURY'S
REPEATED CONTACTS WITH THOSE WITNESSES DURING THE TRIAL, TURNER V.
LOUISIANA, SUPRA.  HOW IS THE DEFENDANT TO PROVE THAT THE PROSECUTOR
ACTED DIFFERENTLY THAN HE ORDINARILY WOULD HAVE, THAT DEFENSE COUNSEL
WAS MORE CONCERNED WITH IMPRESSING PROSPECTIVE CLIENTS THAN WITH THE
INTERESTS OF THE DEFENDANT, THAT A JUROR WAS SO CONCERNED WITH HOW HE
APPEARED ON TELEVISION THAT HIS MIND CONTINUALLY WANDERED FROM THE
PROCEEDINGS, THAT AN IMPORTANT DEFENSE WITNESS MADE A BAD IMPRESSION ON
THE JURY BECAUSE HE WAS "PLAYING" TO THE TELEVISION AUDIENCE, OR THAT
THE JUDGE WAS A LITTLE MORE LENIENT OR A LITTLE MORE STRICT THAN HE
USUALLY MIGHT BE?  AND THEN, HOW IS PETITIONER TO SHOW THAT THIS
COMBINATION OF CHANGED ATTITUDES DIVERTED THE TRIAL SUFFICIENTLY FROM
ITS PURPOSE TO DEPRIVE HIM OF A FAIR TRIAL?  IT IS NO ANSWER TO SAY
THAT AN APPELLATE COURT CAN REVIEW FOR ITSELF TAPES OR FILMS OF THE
PROCEEDINGS.  IN THE FIRST PLACE, IT IS NOT CLEAR THAT THE COURT WOULD
BE ABLE TO OBTAIN UNEDITED TAPES OR FILMS TO REVIEW.  EVEN WITH THE
COOPERATION OF COUNSEL ON BOTH SIDES, THIS COURT WAS UNABLE TO OBTAIN
FILMS OF THIS TRIAL WHICH WERE IN ANY SENSE COMPLETE.  IN ADDITION,
TIME LIMITATIONS MIGHT RESTRICT THE TELEVISION COMPANIES TO TAKING
PICTURES ONLY OF THOSE PORTIONS OF THE TRIAL THAT ARE MOST NEWSWORTHY
AND MOST LIKELY TO ATTRACT THE ATTENTION OF THE VIEWING AUDIENCE.  MORE
IMPORTANTLY, THE TAPES OR FILMS, EVEN IF UNEDITED, COULD GIVE A WRONG
IMPRESSION OF THE PROCEEDINGS.  THE CAMERA WHICH TAKES PICTURES CANNOT
TAKE A PICTURE OF ITSELF.  IN ADDITION, THE CAMERA CANNOT POSSIBLY
COVER THE ACTIONS OF ALL TRIAL PARTICIPANTS DURING THE TRIAL.  WHILE
THE CAMERA IS FOCUSED ON THE JUDGE WHO IS APPARENTLY ACTING PROPERLY, A
JUROR MAY BE GLANCING UP TO SEE WHERE THE CAMERA IS POINTING AND
COUNSEL MAY BE LOOKING AROUND TO SEE WHETHER HE CAN CONFER WITH HIS
CLIENT WITHOUT THE CLOSE-UP LENS OF THE CAMERA FOCUSING ON THEM. 
NEEDLESS TO SAY, THE CAMERA CANNOT PENETRATE THE MINDS OF THE TRIAL
PARTICIPANTS AND SHOW THEIR AWARENESS THAT THEY MAY AT THAT MOMENT BE
THE SUBJECT OF THE CAMERA'S FOCUS.  THE MOST THE CAMERA CAN SHOW IS
THAT A FORMALLY CORRECT TRIAL TOOK PLACE, BUT OUR CONSTITUTION REQUIRES
MORE THAN FORM. 

I RECOGNIZE THAT THE TELEVISION INDUSTRY HAS SHOWN IN THE PAST THAT
IT CAN BE AN ENLIGHTENING AND INFORMING INSTITUTION, BUT LIKE OTHER
INSTITUTIONS IT MUST RESPECT THE RIGHTS OF OTHERS AND CANNOT DEMAND
THAT WE ALTER FUNDAMENTAL CONSTITUTIONAL CONCEPTIONS FOR ITS BENEFIT. 
WE MUST TAKE NOTICE OF THE INHERENT UNFAIRNESS OF TELEVISION IN THE
COURTROOM AND RULE THAT ITS PRESENCE IS INCONSISTENT WITH THE
"FUNDAMENTAL CONCEPTION" OF WHAT A TRIAL SHOULD BE.  MY CONVICTION THAT
THIS IS THE PROPER HOLDING IN THIS CASE IS BUTTRESSED BY THE ALMOST
UNANIMOUS CONDEMNATION OF TELEVISED COURT PROCEEDINGS BY THE JUDICIARY
IN THIS COUNTRY AND BY THE STRONG OPPOSITION TO THE PRACTICE BY THE
ORGANIZED BAR IN THIS COUNTRY.  CANON 35 OF THE AMERICAN BAR
ASSOCIATION'S CANONS OF JUDICIAL ETHICS PROHIBITS THE TELEVISING OF
COURT TRIALS.  (FN37)  WITH ONLY TWO, OR POSSIBLY THREE EXCEPTIONS,
(FN38) THE HIGHEST COURT OF EACH STATE WHICH HAS CONSIDERED THE
QUESTION HAS DECLARED THAT TELEVISED CRIMINAL TRIALS ARE INCONSISTENT
WITH THE ANGLO-AMERICAN CONCEPTION OF "TRIAL."  (FN39)  SIMILARLY, RULE
53 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROHIBITS THE
"BROADCASTING" OF TRIALS, (FN40) AND THE JUDICIAL CONFERENCE OF THE
UNITED STATES HAS UNANIMOUSLY CONDEMNED TELEVISED TRIALS.  (FN41)  THIS
CONDEMNATION RESTS ON MORE THAN NOTIONS OF POLICY; IT ARISES FROM AN
UNDERSTANDING OF THE CONSTITUTIONAL CONCPETION OF THE TERM "TRIAL." 
SUCH A GENERAL CONSENSUS IS CERTAINLY RELEVANT TO THIS COURT'S
DETERMINATION OF THE QUESTION.  SEE MAPP V. OHIO, 367 U.S. 643, 651. 
                                    IV. 

NOTHING IN THIS OPINION IS INCONSISTENT WITH THE CONSTITUTIONAL
GUARANTEES OF A PUBLIC TRIAL AND THE FREEDOM OF SPEECH AND THE PRESS. 

THIS COURT EXPLAINED IN IN RE OLIVER, 333 U.S. 257, 266, 270, THAT THE
PUBLIC TRIAL PROVISION OF THE SIXTH AMENDMENT IS A "GUARANTEE TO AN
ACCUSED" DESIGNED TO "SAFEGUARD AGAINST ANY ATTEMPT TO EMPLOY OUR
COURTS AS INSTRUMENTS OF PERSECUTION."  CLEARLY THE OPENNESS OF THE
PROCEEDINGS PROVIDES OTHER BENEFITS AS WELL:  IT ARGUABLY IMPROVES THE
QUALITY OF TESTIMONY, IT MAY INDUCE UNKNOWN WITNESSES TO COME FORWARD
WITH RELEVANT TESTIMONY, IT MAY MOVE ALL TRIAL PARTICIPANTS TO PERFORM
THEIR DUTIES CONSCIENTIOUSLY, AND IT GIVES THE PUBLIC THE OPPORTUNITY
TO OBSERVE THE COURTS IN THE PERFORMANCE OF THEIR DUTIES AND TO
DETERMINE WHETHER THEY ARE PERFORMING ADEQUATELY.  (FN42)  BUT THE
GUARANTEE OF THE PUBLIC TRIAL CONFERS NO SPECIAL BENEFIT ON THE PRESS,
THE RADIO INDUSTRY OR THE TELEVISION INDUSTRY.  A PUBLIC TRIAL IS A
NECESSARY COMPONENT OF AN ACCUSED'S RIGHT TO A FAIR TRIAL AND THE
CONCEPT OF PUBLIC TRIAL CANNOT BE USED TO DEFEND CONDITIONS WHICH
PREVENT THE TRIAL PROCESS FROM PROVIDING A FAIR AND RELIABLE
DETERMINATION OF GUILT. 

TO SATISFY THE CONSTITUTIONAL REQUIREMENT THAT TRIALS BE PUBLIC IT IS
NOT NECESSARY TO PROVIDE FACILITIES LARGE ENOUGH FOR ALL WHO MIGHT LIKE
TO ATTEND A PARTICULAR TRIAL, SINCE TO DO SO WOULD INTERFERE WITH THE
INTEGRITY OF THE TRIAL PROCESS AND MAKE THE PUBLICITY OF TRIAL
PROCEEDINGS AN END IN ITSELF.  NOR DOES THE REQUIREMENT THAT TRIALS BE
PUBLIC MEAN THAT OBSERVERS ARE FREE TO ACT AS THEY PLEASE IN THE
COURTROOM, FOR PERSONS WHO ATTEND TRIALS CANNOT ACT IN SUCH A WAY AS TO
INTERFERE WITH THE TRIAL PROCESS, SEE MOORE V. DEMPSEY, SUPRA.  WHEN
REPRESENTATIVES OF THE COMMUNICATIONS MEDIA ATTEND TRIALS THEY HAVE NO
GREATER RIGHTS THAN OTHER MEMBERS OF THE PUBLIC.  JUST AS AN ORDINARY
CITIZEN MIGHT BE PROHIBITED FROM USING FIELD GLASSES OR A MOTION
PICTURE CAMERA IN THE COURTHOUSE BECAUSE BY SO DOING HE WOULD INTERFERE
WITH THE CONDUCT OF THE TRIAL, REPRESENTATIVES OF THE PRESS AND
BROADCASTING INDUSTRIES ARE SUBJECT TO SIMILAR LIMITATIONS WHEN THEY
ATTEND COURT.  SINCE THE TELEVISING OF CRIMINAL TRIALS DIVERTS THE
TRIAL PROCESS FROM ITS PROPER END, IT MUST BE PROHIBITED.  THIS
PROHIBITION DOES NOT CONFLICT WITH THE CONSTITUTIONAL GUARANTEE OF A
PUBLIC TRIAL, BECAUSE A TRIAL IS PUBLIC, IN THE CONSTITUTIONAL SENSE,
WHEN A COURTROOM HAS FACILITIES FOR A REASONABLE NUMBER OF THE PUBLIC
TO OBSERVE THE PROCEEDINGS, WHICH FACILITIES ARE NOT SO SMALL AS TO
RENDER THE OPENNESS NEGLIGIBLE AND NOT SO LARGE AS TO DISTRACT THE
TRIAL PARTICIPANTS FROM THEIR PROPER FUNCTION, WHEN THE PUBLIC IS FREE
TO USE THOSE FACILITIES, AND WHEN ALL THOSE WHO ATTEND THE TRIAL ARE
FREE TO REPORT WHAT THEY OBSERVED AT THE PROCEEDINGS. 

NOR DOES THE EXCLUSION OF TELEVISION CAMERAS FROM THE COURTROOM IN
ANY WAY IMPINGE UPON THE FREEDOMS OF SPEECH AND THE PRESS.  COURT
PROCEEDINGS, AS WELL AS OTHER PUBLIC MATTERS, ARE PROPER SUBJECTS FOR
PRESS COVERAGE. 

"A TRIAL IS A PUBLIC EVENT.  WHAT TRANSPIRES IN THE COURT ROOM IS
PUBLIC PROPERTY.  IF A TRANSCRIPT OF THE COURT PROCEEDINGS HAD BEEN
PUBLISHED, WE SUPPOSE NONE WOULD CLAIM THAT THE JUDGE COULD PUNISH THE
PUBLISHER FOR CONTEMPT.  AND WE CAN SEE NO DIFFERENCE THOUGH THE
CONDUCT OF THE ATTORNEYS, OF THE JURY, OR EVEN OF THE JUDGE HIMSELF,
MAY HAVE REFLECTED ON THE COURT.  THOSE WHO SEE AND HEAR WHAT
TRANSPIRED CAN REPORT IT WITH IMPUNITY.  THERE IS NO SPECIAL PERQUISITE
OF THE JUDICIARY WHICH ENABLES IT, AS DISTINGUISHED FROM OTHER
INSTITUTIONS OF DEMOCRATIC GOVERNMENT, TO SUPPRESS, EDIT, OR CENSOR
EVENTS WHICH TRANSPIRE IN PROCEEDINGS BEFORE IT."  (FN48) 

SO LONG AS THE TELEVISION INDUSTRY, LIKE THE OTHER COMMUNICATIONS
MEDIA, IS FREE TO SEND REPRESENTATIVES TO TRIALS AND TO REPORT ON THOSE
TRIALS TO ITS VIEWERS, THERE IS NO ABRIDGMENT OF THE FREEDOM OF PRESS. 
THE RIGHT OF THE COMMUNICATIONS MEDIA TO COMMENT ON COURT PROCEEDINGS
DOES NOT BRING WITH IT THE RIGHT TO INJECT THEMSELVES INTO THE FABRIC
OF THE TRIAL PROCESS TO ALTER THE PURPOSE OF THAT PROCESS. 

IN SUMMARY, TELEVISION IS ONE OF THE GREAT INVENTIONS OF ALL TIME AND
CAN PERFORM A LARGE AND USEFUL ROLE IN SOCIETY.  BUT THE TELEVISION
CAMERA, LIKE OTHER TECHNOLOGICAL INNOVATIONS, IS NOT ENTITLED TO
PERVADE THE LIVES OF EVERYONE IN DISREGARD OF CONSTITUTIONALLY
PROTECTED RIGHTS.  (FN44)  THE TELEVISION INDUSTRY, LIKE OTHER
INSTITUTIONS, HAS A PROPER AREA OF ACTIVITIES AND LIMITATIONS BEYOND
WHICH IT CANNOT GO WITH ITS CAMERAS.  THAT AREA DOES NOT EXTEND INTO AN
AMERICAN COURTROOM.  ON ENTERING THAT HALLOWED SANCTUARY, WHERE THE
LIVES, LIBERTY AND PROPERTY OF PEOPLE ARE IN JEOPARDY, TELEVISION
REPRESENTATIVES HAVE ONLY THE RIGHTS OF THE GENERAL PUBLIC, NAMELY, TO
BE PRESENT, TO OBSERVE THE PROCEEDINGS, AND THEREAFTER, IF THEY CHOOSE,
TO REPORT THEM. 

FN1  N.Y. TIMES, SEPT. 25, 1962, P. 46, COL. 4.  SEE APPENDIX,
PHOTOGRAPHS 1, 2, 3 (PHOTOS OMITTED). 

FN2  COUNSEL EXPLAINED TO THE TRIAL COURT THAT HE DESIRED TO PROTECT
PETITIONER FROM THE CAMERAS UNTIL THE COURT HAD MADE ITS RULING. 

FN3  SEE APPENDIX, PHOTOGRAPH 6 (OMITTED). 

FN4  SEE APPENDIX, PHOTOGRAPH 7 (OMITTED). 

FN5  JENKS, A SHORT HISTORY OF ENGLISH LAW 46-47 (6TH ED. 1949); I
STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 51-74 (1883). 

FN6  SEE, E.G., CRAIG V. HARNEY, 331 U.S. 367, 378; IRVIN V. DOWD,
366 U.S. 717, 728; BRADY V. MARYLAND, 373 U.S. 83, 87; JACKSON V.
DENNO, 378 U.S. 368, 391. 

FN7  SEE SINGER V. UNITED STATES, 380 U.S. 24, 27. 

FN8  II POLLOCK AND MAITLAND, THE HISTORY OF ENGLISH LAW 621-622 (2D
ED. 1909). 

FN9  I STEPHEN, SUPRA, NOTE 5, AT 260. 

FN10  SEE 7 WILL.  3, C. 3 (1695). 

FN11  IBID. 

FN12  IBID.; 6 & 7 WILL.  4, C. 114 (1836). 

FN13  I STEPHEN, SUPRA, NOTE 5, AT 427. 

FN14  I JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, 69 (FORD ED.
1904). 

FN15  RADIN, THE RIGHT TO A PUBLIC TRIAL, 6 TEMPLE L.Q. 381, 383, N.
5A (1932). 

FN16  ADAMSON V. CALIFORNIA, 332 U.S. 46, 71-72 (DISSENTING OPINION
OF MR. JUSTICE BLACK). 

FN17  GIDEON V. WAINWRIGHT, 372 U.S. 335, 342. 

FN18  POINTER V. TEXAS, 380 U.S. 400, 408 (OPINION OF MR. JUSTICE
HARLAN, CONCURRING IN THE RESULT). 

FN19  COX V. LOUISIANA, 379 U.S. 559, 562; FRANK V. MANGUM, 237 U.S.
309, 347 (DISSENTING OPINION OF JUSTICE HOLMES).  SEE ADAMSON V.
CALIFORNIA, 332 U.S. 46, 53; IN RE MURCHISON, 349 U.S. 133, 136; IRVIN
V. DOWD, 366 U.S. 717, 722; JACKSON V. DENNO, 378 U.S. 368, 377 (COURT
OPINION), 424 (DISSENTING OPINION OF MR. JUSTICE CLARK), 428
(DISSENTING OPINION OF MR. JUSTICE HARLAN). 

FN20  FRANK V. MANGUM, 237 U.S. 309, 346 (DISSENTING OPINION). 

FN21  COX V. LOUISIANA, 379 U.S 559, 583 (DISSENTING OPINION). 

FN22  SEE MOONEY V. HOLOHAN, 294 U.S. 103; ALCORTA V. TEXAS, 355 U.S.
28; NAPUE V. ILLINOIS, 360 U.S. 264; AND BRADY V. MARYLAND, 373 U.S.
83. 

FN23  SEE APPENDIX, PHOTOGRAPH 7 (OMITTED). 

FN24  KEATING, "NOT 'BONANZA,' NOT 'PEYTON PLACE,' BUT THE U.S.
SENATE," N.Y. TIMES MAGAZINE, APRIL 25, 1965, 67, 72.  SEE, E.G., N.Y.
TIMES, APRIL 22, 1965, P. 43, COL. 2 (IN DESCRIBING A TELEVISED
STOCKHOLDERS' MEETING THE TIMES REPORTED, "SOME STOCKHOLDERS SEEMED
VERY MUCH AWARE THEY WERE ON CAMERA"); TINKHAM, SHOULD CANON 35 BE
AMENDED?  A QUESTION OF PROPER JUDICIAL ADMINISTRATION, 42 A.B.A.J.
843, 845 (1956)(IN GIVING EXAMPLES OF HOW PEOPLE REACT WHEN THEY KNOW
THEY ARE ON TELEVISION, THE AUTHOR DESCRIBES THE REACTIONS OF A
TELEVISION AUDIENCE WHEN THE CAMERA WAS TURNED ON IT AS "CONTORTED,
GRIMACING"); GOULD, N.Y. TIMES, MARCH 11, 1956, SEC. 2, P. X11, COL. 2
("THE MOST EXPERIENCED PERFORMERS IN SHOW BUSINESS KNOW THE HORRORS OF
STAGE FRIGHT BEFORE THEY GO ON TV.  THIS PSYCHOLOGICAL AND EMOTIONAL
BURDEN MUST NOT BE PLACED ON A LAYMAN WHOSE TESTIMONY MAY HAVE A
BEARING ON WHETHER, IN A MURDER TRIAL, ANOTHER HUMAN BEING IS TO LIVE
OR DIE."). 

FN25  SEE, E.G., DOUGLAS, THE PUBLIC TRIAL AND THE FREE PRESS, 46
A.B.A.J. 840, 842 (1960).  IN UNITED STATES V. KLEINMAN, 107 F. SUPP.
407 (D.C.D.C. 1952), THE COURT REFUSED TO HOLD IN CONTEMPT WITNESSES IN
A CONGRESSIONAL HEARING WHO REFUSED TO ANSWER QUESTIONS WHILE
TELEVISION CAMERAS WERE FOCUSED ON THEM.  THE COURT STATED: 

"THE ONLY REASON FOR HAVING A WITNESS ON THE STAND, EITHER BEFORE A
COMMITTEE OF CONGRESS OR BEFORE A COURT, IS TO GET A THOUGHTFUL, CALM,
CONSIDERED AND, IT IS TO BE HOPED, TRUTHFUL DISCLOSURE OF FACTS.  THAT
IS NOT ALWAYS ACCOMPLISHED, EVEN UNDER THE BEST OF CIRCUMSTANCES.  BUT
AT LEAST THE ATMOSPHERE OF THE FORUM SHOULD LEND ITSELF TO THAT END. 

"IN THE CASES NOW TO BE DECIDED, THE STIPULATION OF FACTS DISCLOSES
THAT THERE WERE, IN CLOSE PROXIMITY TO THE WITNESS, TELEVISION CAMERAS,
NEWSREEL CAMERAS, NEWS PHOTOGRAPHERS WITH THEIR CONCOMITANT FLASHBULBS,
RADIO MICROPHONES, A LARGE AND CROWDED HEARING ROOM WITH SPECTATORS
STANDING ALONG THE WALLS, ETC.  THE OBDURATE STAND TAKEN BY THESE TWO
DEFENDANTS MUST BE VIEWED IN THE CONTEXT OF ALL THESE CONDITIONS.  THE
CONCENTRATION OF ALL OF THESE ELEMENTS SEEMS TO ME NECESSARILY SO TO
DISTURB AND DISTRACT ANY WITNESS TO THE POINT THAT HE MIGHT SAY TODAY
SOMETHING THAT NEXT WEEK HE WILL REALIZE WAS ERRONEOUS.  AND THE
MISTAKE COULD GET HIM IN TROUBLE ALL OVER AGAIN."  ID., AT 408. 

FN26  SEE, E.G., DOUGLAS, SUPRA, NOTE 25, AT 842; YESAWICH,
TELEVISING AND BROADCASTING TRIALS, 37 CORNELL L.Q. 701, 717 (1952). 

FN27  WIGMORE, A KALEIDOSCOPE OF JUSTICE 487 (1941). 

FN28  MUELLER, PROBLEMS POSED BY PUBLICITY TO CRIME AND CRIMINAL
PROCEEDINGS, 110 U. PA.  L. REV. 1, 6 (1961). 

FN29  COMPARE APPENDIX, PHOTOGRAPH 5 (OMITTED), WITH APPENDIX,
PHOTOGRAPH 6 (OMITTED). 

FN30  N.Y. TIMES, JAN. 23, 1959, P. 1, COL. 1. 

FN31  BERMAN, INTRODUCTION TO THE TRIAL OF THE U 2 XIII, XII-XIII,
XXIX (1960). 

FN32  A REVEALING DIALOGUE TOOK PLACE IN THE PRESENT CASE BETWEEN
DEFENSE COUNSEL AND ONE OF THE TELEVISION EXECUTIVES PRESENT IN THE
COURTROOM DURING THE SEPTEMBER 24 HEARING. 

"Q.  THE CAMERA ON THE OTHER SIDE OF THE ROOM HAS TO LOOK OVER A
CORNER OF THE JURY BOX AND PAST THE JURORS TO BE AIMED AT THE WITNESS
BOX, DOES IT NOT? 

"A.  I THINK THAT IS PRETTY CLEAR, SIR.  I DON'T THINK THE JURORS
WOULD BE IN THE WAY THERE. 

"Q.  YOU DON'T THINK THE JURORS WOULD GET IN THE WAY OF YOUR
OPERATIONS? 

"A.  I DON'T MEAN THAT EXACTLY, SIR." 

FN33  PETITION FOR WRIT OF CERTIORARI, 35A. 

FN34  SEE APPENDIX, PHOTOGRAPH 4 (OMITTED). 

FN35  SEE, E.G., DOUGLAS, SUPRA, NOTE 25, AT 844. 

FN36  CF. FAY V. NEW YORK, 332 U.S. 261, 300 (DISSENTING OPINION OF
MR. JUSTICE MURPHY). 

FN37  THE CANON PROVIDES IN PERTINENT PART: 

"PROCEEDINGS IN COURT SHOULD BE CONDUCTED WITH FITTING DIGNITY AND
DECORUM.  THE TAKING OF PHOTOGRAPHS IN THE COURT ROOM, DURING SESSIONS
OF THE COURT OR RECESSES BETWEEN SESSIONS, AND THE BROADCASTING OR
TELEVISING OF COURT PROCEEDINGS DETRACT FROM THE ESSENTIAL DIGNITY OF
THE PROCEEDINGS, DISTRACT PARTICIPANTS AND WITNESSES IN GIVING
TESTIMONY, AND CREATE MISCONCEPTIONS WITH RESPECT THERETO IN THE MIND
OF THE PUBLIC AND SHOULD NOT BE PERMITTED." 

FN38  COLORADO, IN RE HEARINGS CONCERNING CANON 35 OF THE CANONS OF
JUDICIAL ETHICS, 296 P.2D 465 (COLO. SUP. CT. 1956), AND TEXAS PERMIT
TELEVISING OF TRIALS IN THE DISCRETION OF THE TRIAL JUDGE.  THE CURRENT
SITUATION IN OKLAHOMA IS UNCLEAR.  IN LYLES V. STATE, 330 P.2D 734
(1958), THE CRIMINAL COURT OF APPEALS OF OKLAHOMA STATED THAT THE
TELEVISING OF PROCEEDINGS WAS IN THE DISCRETION OF THE TRIAL JUDGE.  IN
1959, HOWEVER, THE SUPREME COURT ADOPTED A RULE PROHIBITING TELEVISION
DURING ACTUAL PROCEEDINGS.  OKLA. STAT. ANN., TIT. 5, AT 65-66 (1963
SUPP.).  NEVERTHELESS, IN 1961 THE COURT AGAIN STATED THAT THE
TELEVISING OF TRIALS IS A MATTER FOR THE TRIAL JUDGE'S DISCRETION. 
CODY V. STATE, 361 P.2D 307 (CT. CRIM. APP. OKLA. 1961). 

FN39  WITH THE EXCEPTIONS STATED IN NOTE 38, SUPRA, NO STATE
AFFIRMATIVELY PERMITS TELEVISED TRIALS.  IT HAS BEEN STATED THAT CANON
35 IS IN EFFECT IN 30 STATES.  48 J. AM.  JUD.  SOC.  80 (1964); BRIEF
FOR PETITIONER, P. 39.  IT IS DIFFICULT TO VERIFY THIS FIGURE BECAUSE
OF THE LACK OF UNIFORMITY AMONG THE STATES IN REPORTING THEIR COURT
RULES.  HOWEVER, THE FOLLOWING STATES HAVE CLEARLY ADOPTED CANON 35, OR
ITS EQUIVALENT:  ALASKA, ALASKA RULES CRIM. PROC. 48; ARIZONA, ARIZ.
SUP. CT. RULE 45, 17 ARIZ. REV. STAT. ANN., AT 40; CONNECTICUT, CONN.
PRACTICE BOOK 27 (1963); DELAWARE, DEL. SUP. CT. RULE 33, 13 DEL. CODE
ANN., AT 23 (1964 SUPP.)(ADOPTED CANON 35 IN ITS PRE-1952 FORM, WHICH
DOES NOT EXPLICITLY PROHIBIT TELEVISION, BUT DOES PROHIBIT "THE TAKING
OF PHOTOGRAPHS" AND "BROADCASTING OF COURT PROCEEDINGS"); FLORIDA, CODE
OF ETHICS, RULE A35, 31 FLA. STAT. ANN., AT 285 (1964 SUPP.), SEE
BRUMFIELD V. STATE, 108 SO. 2D 33 (FLA. SUP. CT. 1958); HAWAII, HAWAII
SUP. CT. RULE 16, 43 HAW.  450; ILLINOIS, 1964 ANN. REP. OF THE ILL.
JUDICIAL CONFERENCE 168-169, SEE PEOPLE V. ULRICH, 376 ILL. 461, 34
N.E.2D 393 (1941), PEOPLE V. MUNDAY, 280 ILL. 32, 117 N.E. 286 (1917);
IOWA, IOWA SUP. CT. RULE 119, 40 IOWA CODE ANN., C. 610 (1964 SUPP.);
KANSAS, KANSAS SUP. CT. RULE 117, 191 KAN. XXIV (1963)(DOES NOT REFER
SPECIFICALLY TO TELEVISION); KENTUCKY, KY. CT. APP. RULE 3.170,
RUSSELL'S KENTUCKY PRACTICE AND SERVICE 21 (1964); LOUISIANA, CANON OF
JUDICIAL ETHICS XXIII, 242 LA. LI (1960); MICHIGAN, CANON OF JUDICIAL
ETHICS 35, CALLAGHAN'S MICHIGAN PLEADING AND PRACTICE, RULES AT 422-423
(2D ED. 1962); NEW JERSEY, CANON OF JUDICIAL ETHICS 35, 1 WALTZINGER,
NEW JERSEY PRACTICE 299 (REV. ED. 1954); NEW MEXICO, N.M. SUPP. CT.
RULE 27, 4 N.M. STAT.  ANN., AT 95 (1963 SUPP.); NEW YORK, N.Y. RULES
OF THE ADMINISTRATIVE BOARD OF THE JUDICIAL CONFERENCE, RULE 5, N.Y.
JUDICIARY LAW, AT 320 (1964 SUPP.); OHIO, 176 OHIO ST. LXIV (1964), SEE
STATE V. CLIFFORD, 162 OHIO ST. 370, 123 N.E.2D 8 (1954), CERT. DENIED,
349 U.S. 929; TENNESSEE, TENN. SUP. CT. RULE 38, 209 TENN. 818 (1961);
VIRGINIA, 201 VA. CVII (1960) (PROHIBITS TAKING OF PHOTOGRAPHS AND
BROADCASTING, ALTHOUGH IT DOES NOT REFER SPECIFICALLY TO TELEVISION);
WASHINGTON, 61 WASH. 2D XXVIII (1963); WEST VIRGINIA, 141 W.VA. VIII
(1955).    IN ADDITION, BRAND, BAR ASSOCIATIONS, ATTORNEYS AND JUDGES
(1956 AND 1959 SUPP.) REPORTS THAT THE IDAHO SUPREME COURT ADOPTED
CANON 35 IN ITS PRESENT FORM AND THE SUPREME COURTS OF OREGON, SOUGH
DAKOTA AND UTAH ADOPTED THE CANON WHEN IT MERELY PROHIBITED
"PHOTOGRAPHING" AND "BROADCASTING" WITHOUT SPECIFICALLY MENTIONING
TELEVISION.  IT HAS ALSO BEEN REPORTED THAT THE SUPREME COURT OF
ARKANSAS ADOPTED CANON 35.  44 J. AM. JUD.  SOC.  120 (1960). 

MOREOVER, THE SUPREME COURT OF CALIFORNIA ASSUMED IT WAS "IMPROPER"
TO TELEVISE CRIMINAL PROCEEDINGS IN PEOPLE V. STROBLE, 36 CAL. 2D 615,
226 P.2D 330 (1951), AFFIRMED 343 U.S. 181, REHEARING DENIED 343 U.S.
952; SEE THE RULE ADOPTED BY THE CONFERENCE OF CALIFORNIA JUDGES, 24
CAL. STATE BAR J. 299 (1949); THE COURT OF APPEALS OF MARYLAND IN EX
PARTE STURM, 152 MD. 114, 122, 136 A. 312, 315 (1927), USED LANGUAGE
INDICATING THAT MARYLAND WOULD PROBABLY BAR TELEVISION FROM THE
COURTROOM IF FACED WITH THE PROBLEM; AND THE SUPREME COURT OF
PENNSYLVANIA CITED WITH APPROVAL CANON 35 IN MACK APPEAL, 386 PA. 251,
257, N. 5, 126 A.2D 679, 681-682, N. 4 (1956), CERT. DENIED, 352 U.S.
1002, SEE 48 J. AM. JUD.  SOC.  200 (1965). 

FN40  RULE 53 PROVIDES: 

"THE TAKING OF PHOTOGRAPHS IN THE COURT ROOM DURING THE PROGRESS OF
JUDICIAL PROCEEDINGS OR RADIO BROADCASTING OF JUDICIAL PROCEEDINGS FROM
THE COURT ROOM SHALL NOT BE PERMITTED BY THE COURT." 

FN41  "RESOLVED, THAT THE JUDICIAL CONFERENCE OF THE UNITED STATES
CONDEMNS THE TAKING OF PHOTOGRAPHS IN THE COURTROOM OR ITS ENVIRONS IN
CONNECTION WITH ANY JUDICIAL PROCEEDINGS, AND THE BROADCASTING OF
JUDICIAL PROCEEDINGS BY RADIO, TELEVISION, OR OTHER MEANS, AND
CONSIDERS SUCH PRACTICES TO BE INCONSISTENT WITH FAIR JUDICIAL
PROCEDURE AND THAT THEY OUGHT NOT TO BE PERMITTED IN ANY FEDERAL
COURT."  ANNUAL REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF
THE UNITED STATES, MARCH 8-9, 1962, P. 10. 

FN42  SEE, E.G., 3 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND
372-373 (15TH ED.  1809); 6 WIGMORE, EVIDENCE 332-335 (3D ED. 1940). 

FN43  CRAIG V. HARNEY, 331 U.S. 367, 374.  SEE BRIDGES V. CALIFORNIA,
314 U.S. 252; PENNEKAMP V. FLORIDA, 328 U.S. 331. 

FN44  COMPARE OLMSTEAD V. UNITED STATES, 277 U.S. 438, 471
(DISSENTING OPINION OF MR. JUSTICE BRANDEIS); ON LEE V. UNITED STATES,
343 U.S. 747, 762 (DISSENTING OPINION OF MR. JUSTICE DOUGLAS);
SILVERMAN V. UNITED STATES, 365 U.S. 505; LOPEZ V. UNITED STATES, 373
U.S. 427, 445-446 (OPINION CONCURRING IN THE RESULT), 465 (DISSENTING
OPINION OF MR. JUSTICE BRENNAN). 

MR. JUSTICE HARLAN, CONCURRING. 

I CONCUR IN THE OPINION OF THE COURT, SUBJECT, HOWEVER, TO THE
RESERVATIONS AND ONLY TO THE EXTENT INDICATED IN THIS OPINION. 

THE CONSTITUTIONAL ISSUE PRESENTED BY THIS CASE IS FAR-REACHING IN
ITS IMPLICATIONS FOR THE ADMINISTRATION OF JUSTICE IN THIS COUNTRY. 
THE PRECISE QUESTION IS WHETHER THE FOURTEENTH AMENDMENT PROHIBITS A
STATE, OVER THE OBJECTION OF A DEFENDANT, FROM EMPLOYING TELEVISION IN
THE COURTROOM TO TELEVISE CONTEMPORANEOUSLY, OR SUBSEQUENTLY BY MEANS
OF VIDEOTAPE, THE COURTROOM PROCEEDINGS OF A CRIMINAL TRIAL OF
WIDESPREAD PUBLIC INTEREST.  THE ISSUE IS NO NARROWER THAN THIS BECAUSE
PETITIONER HAS NOT ASSERTED ANY ISOLATABLE PREJUDICE RESULTING FROM THE
PRESENCE OF TELEVISION APPARATUS WITHIN THE COURTROOM OR FROM THE
CONTEMPORANEOUS OR SUBSEQUENT BROADCASTING OF THE TRIAL PROCEEDINGS. 
ON THE OTHER HAND, THE ISSUE IS NO BROADER, FOR WE ARE CONCERNED HERE
ONLY WITH A CRIMINAL TRIAL OF GREAT NOTORIETY, AND NOT WITH CRIMINAL
PROCEEDINGS OF A MORE OR LESS ROUTINE NATURE. 

THE QUESTION IS FRAUGHT WITH UNUSUAL DIFFICULTIES.  PERMITTING
TELEVISION IN THE COURTROOM UNDENIABLY HAS MISCHIEVOUS POTENTIALITIES
FOR INTRUDING UPON THE DETACHED ATMOSPHERE WHICH SHOULD ALWAYS SURROUND
THE JUDICIAL PROCESS.  FORBIDDING THIS INNOVATION, HOWEVER, WOULD
DOUBTLESS IMPINGE UPON ONE OF THE VALUED ATTRIBUTES OF OUR FEDERALISM
BY PREVENTING THE STATES FROM PURSUING A NOVEL COURSE OF PROCEDURAL
EXPERIMENTATION.  MY CONCLUSION IS THAT THERE IS NO CONSTITUTIONAL
REQUIREMENT THAT TELEVISION BE ALLOWED IN THE COURTROOM, AND, AT LEAST
AS TO A NOTORIOUS CRIMINAL TRIAL SUCH AS THIS ONE, THE CONSIDERATIONS
AGAINST ALLOWING TELEVISION IN THE COURTROOM SO FAR OUTWEIGH THE
COUNTERVAILING FACTORS ADVANCED IN ITS SUPPORT AS TO REQUIRE A HOLDING
THAT WHAT WAS DONE IN THIS CASE INFRINGED THE FUNDAMENTAL RIGHT TO A
FAIR TRIAL ASSURED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. 

SOME PRELIMINARY OBSERVATIONS ARE IN ORDER:  ALL WOULD AGREE, I AM
SURE, THAT AT ITS WORST, TELEVISION IS CAPABLE OF DISTORTING ALL TRIAL
PROCESS SO AS TO DEPRIVE IT OF FUNDAMENTAL FAIRNESS.  CABLES, KLEIG
LIGHTS, INTERVIEWS WITH THE PRINCIPAL PARTICIPANTS, COMMENTARY ON THEIR
PERFORMANCES, "COMMERCIALS" AT FREQUENT INTERVALS, SPECIAL WEARING
APPAREL AND MAKEUP FOR THE TRIAL PARTICIPANTS - CERTAINLY SUCH THINGS
WOULD NOT CONDUCE TO THE SOUND ADMINISTRATION OF JUSTICE BY ANY
ACCEPTABLE STANDARD.  BUT THAT IS NOT THE CASE BEFORE US.  WE MUST
JUDGE TELEVISION AS WE FIND IT IN THIS TRIAL - RELATIVELY UNOBTRUSIVE,
WITH THE CAMERAS CONTAINED IN A BOOTH AT THE BACK OF THE COURTROOM. 

  I. 

NO CONSTITUTIONAL PROVISION GUARANTEES A RIGHT TO TELEVISE TRIALS. 
THE "PUBLIC TRIAL" GUARANTEE OF THE SIXTH AMENDMENT, WHICH REFLECTS A
CONCEPT FUNDAMENTAL TO THE ADMINISTRATION OF JUSTICE IN THIS COUNTRY,
IN RE OLIVER, 333 U.S. 257, CERTAINLY DOES NOT REQUIRE THAT TELEVISION
BE ADMITTED TO THE COURTROOM.  SEE UNITED PRESS ASSNS.  V. VALENTE, 308
N.Y. 71, 123 N.E.2D 777.  ESSENTIALLY, THE PUBLIC-TRIAL GUARANTEE
EMBODIES A VIEW OF HUMAN NATURE, TRUE AS A GENERAL RULE, THAT JUDGES,
LAWYERS, WITNESSES, AND JURORS WILL PERFORM THEIR RESPECTIVE FUNCTIONS
MORE RESPONSIBLY IN AN OPEN COURT THAN IN SECRET PROCEEDINGS.  IN RE
OLIVER, SUPRA, AT 266-273.  A FAIR TRIAL IS THE OBJECTIVE, AND "PUBLIC
TRIAL" IS AN INSTITUTIONAL SAFEGUARD FOR ATTAINING IT. 

THUS THE RIGHT OF "PUBLIC TRIAL" IS NOT ONE BELONGING TO THE PUBLIC,
BUT ONE BELONGING TO THE ACCUSED, AND INHERING TO THE INSTITUTIONAL
PROCESS BY WHICH JUSTICE IS ADMINISTERED.  OBVIOUSLY, THE PUBLIC-TRIAL
GUARANTEE IS NOT VIOLATED IF AN INDIVIDUAL MEMBER OF THE PUBLIC CANNOT
GAIN ADMITTANCE TO A COURTROOM BECAUSE THERE ARE NO AVAILABLE SEATS. 
THE GUARANTEE WILL ALREADY HAVE BEEN MET, FOR THE "PUBLIC" WILL BE
PRESENT IN THE FORM OF THOSE PERSONS WHO DID GAIN ADMISSION.  EVEN THE
ACTUAL PRESENCE OF THE PUBLIC IS NOT GUARANTEED.  A PUBLIC TRIAL
IMPLIES ONLY THAT THE COURT MUST BE OPEN TO THOSE WHO WISH TO COME, SIT
IN THE AVAILABLE SEATS, CONDUCT THEMSELVES WITH DECORUM, AND OBSERVE
THE TRIAL PROCESS.  IT DOES NOT GIVE ANYONE A CONCOMITANT RIGHT TO
PHOTOGRAPH, RECORD, BROADCAST, OR OTHERWISE TRANSMIT THE TRIAL
PROCEEDINGS TO THOSE MEMBERS OF THE PUBLIC NOT PRESENT, ALTHOUGH TO BE
SURE, THE GUARANTEE OF PUBLIC TRIAL DOES NOT OF ITSELF PROHIBIT SUCH
ACTIVITY. 

THE FREE SPEECH AND PRESS GUARANTEES OF THE FIRST AND FOURTEENTH
AMENDMENTS ARE ALSO ASSERTED AS EMBODYING A POSITIVE RIGHT TO TELEVISE
TRIALS, BUT THE ARGUMENT IS GREATLY OVERDRAWN.  UNQUESTIONABLY,
TELEVISION HAS BECOME A VERY EFFECTIVE MEDIUM FOR TRANSMITTING NEWS. 
MANY TRIALS ARE NEWSWORTHY, AND TELEVISING THEM MIGHT WELL PROVIDE THE
MOST ACCURATE AND COMPREHENSIVE MEANS OF CONVEYING THEIR CONTENT TO THE
PUBLIC.  FURTHERMORE, TELEVISION IS CAPABLE OF PERFORMING AN
EDUCATIONAL FUNCTION BY ACQUAINTING THE PUBLIC WITH THE JUDICIAL
PROCESS IN ACTION.  ALBEIT THESE ARE CREDIBLE POLICY ARGUMENTS IN FAVOR
OF TELEVISION, THEY ARE NOT ARGUMENTS OF CONSTITUTIONAL PROPORTIONS. 
THE RIGHT TO PRINT AND SPEAK, OVER TELEVISION AS ELSEWHERE, DO NOT
EMBODY AN INDEPENDENT RIGHT TO BRING THE MECHANICAL FACILITIES OF THE
BROADCASTING AND PRINTING INDUSTRIES INTO THE COURTROOM.  ONCE BEYOND
THE CONFINES OF THE COURTHOUSE, A NEWS-GATHERING AGENCY MAY PUBLICIZE,
WITHIN WIDE LIMITS, WHAT ITS REPRESENTATIVES HAVE HEARD AND SEEN IN THE
COURTROOM.  BUT THE LINE IS DRAWN AT THE COURTHOUSE DOOR; AND WITHIN, A
REPORTER'S CONSTITUTIONAL RIGHTS ARE NO GREATER THAN THOSE OF ANY OTHER
MEMBER OF THE PUBLIC.  WITHIN THE COURTHOUSE THE ONLY RELEVANT
CONSTITUTIONAL CONSIDERATION IS THAT THE ACCUSED BE ACCORDED A FAIR
TRIAL.  IF THE PRESENCE OF TELEVISION SUBSTANTIALLY DETRACTS FROM THAT
GOAL, DUE PROCESS REQUIRES THAT ITS USE BE FORBIDDEN. 

I SEE NO FORCE IN THE ARGUMENT THAT TO EXCLUDE TELEVISION APPARATUS
FROM THE COURTROOM, WHILE AT THE SAME TIME PERMITTING NEWSPAPER
REPORTERS TO BRING IN THEIR PENCILS AND NOTEBOOKS, WOULD DISCRIMINATE
IN FAVOR OF THE PRESS AS AGAINST THE BROADCASTING SERVICES.  THE
DISTINCTIONS TO BE DRAWN BETWEEN THE ACCOUTERMENTS OF THE PRESS AND THE
TELEVISION MEDIA TURN NOT ON DIFFERENCES OF SIZE AND SHAPE BUT OF
FUNCTION AND EFFECT.  THE PRESENCE OF THE PRESS AT TRIALS MAY HAVE A
DISTORTING EFFECT, BUT IT IS NOT CAUSED BY THEIR PENCILS AND
NOTEBOOKS.  IF IT WERE, I WOULD NOT HESITATE TO SAY THAT SUCH PHYSICAL
PARAPHERNALIA SHOULD BE BARRED. 

                  II. 

THE PROBABLE IMPACT OF COURTROOM TELEVISION ON THE FAIRNESS OF A
TRIAL MAY VARY ACCORDING TO THE PARTICULAR KIND OF CASE INVOLVED.  THE
IMPACT OF TELEVISION ON A TRIAL EXCITING WIDE POPULAR INTEREST MAY BE
ONE THING; THE IMPACT ON A RUN-OF-THE-MILL CASE MAY BE QUITE ANOTHER. 
FURTHERMORE, THE PROPRIETY OF CLOSED CIRCUIT TELEVISION FOR THE PURPOSE
OF MAKING A COURT RECORDING OR FOR LIMITED USE IN EDUCATIONAL
INSTITUTIONS OBVIOUSLY PRESENTS MARKEDLY DIFFERENT CONSIDERATIONS.  THE
ESTES TRIAL WAS A HEAVILY PUBLICIZED AND HIGHLY SENSATIONAL AFFAIR.  I
THEREFORE PUT ASIDE ALL OTHER TYPES OF CASES; IN SO DOING, HOWEVER, I
WISH TO MAKE IT PERFECTLY CLEAR THAT I AM BY NO MEANS PREPARED TO SAY
THAT THE CONSTITUTIONAL ISSUE SHOULD ULTIMATELY TURN UPON THE NATURE OF
THE PARTICULAR CASE INVOLVED.  WHEN THE ISSUE OF TELEVISION IN A NON
NOTORIOUS TRIAL IS PRESENTED IT MAY APPEAR THAT NO WORKABLE DISTINCTION
CAN BE DRAWN BASED ON THE TYPE OF CASE INVOLVED, OR THAT THE
POSSIBILITIES FOR PREJUDICE, THOUGH LESS SEVERE, ARE NONETHELESS OF
CONSTITUTIONAL PROPORTIONS.  COMPARE POWELL V. ALABAMA, 287 U.S. 45;
BETTS V. BRADY, 316 U.S. 455; GIDEON V. WAINWRIGHT, 372 U.S. 335.  THE
RESOLUTION OF THOSE FURTHER QUESTIONS SHOULD AWAIT AN APPROPRIATE CASE;
THE COURT SHOULD PROCEED ONLY STEP BY STEP IN THIS UNPLOWED FIELD.  THE
OPINION OF THE COURT NECESSARILY GOES NO FARTHER, FOR ONLY THE FOUR
MEMBERS OF THE MAJORITY WHO UNRESERVEDLY JOIN THE COURT'S OPINION WOULD
RESOLVE THOSE QUESTIONS NOW. 

I DO NOT DEEM THE CONSTITUTIONAL INQUIRY IN THIS CASE ENDED BY THE
FINDING, IN EFFECT CONCEDED BY PETITIONER'S COUNSEL, THAT NO ISOLATABLE
PREJUDICE WAS OCCASIONED BY THE MANNER IN WHICH TELEVISION WAS EMPLOYED
IN THIS CASE.  (FN1)  COURTROOM TELEVISION INTRODUCES INTO THE CONDUCT
OF A CRIMINAL TRIAL THE ELEMENT OF PROFESSIONAL "SHOWMANSHIP," AN
EXTRANEOUS INFLUENCE WHOSE SUBTLE CAPACITIES FOR SERIOUS MISCHIEF IN A
CASE OF THIS SORT WILL NOT BE UNDERESTIMATED BY ANY LAWYER EXPERIENCED
IN THE ELUSIVE IMPONDERABLES OF THE TRIAL ARENA.  IN THE CONTEXT OF A
TRIAL OF INTENSE PUBLIC INTEREST, THERE IS CERTAINLY A STRONG
POSSIBILITY THAT THE TIMID OR RELUCTANT WITNESS, FOR WHOM A COURT
APPEARANCE EVEN AT ITS TRADITIONAL BEST IS A HARROWING AFFAIR, WILL
BECOME MORE TIMID OR RELUCTANT WHEN HE FINDS THAT HE WILL ALSO BE
APPEARING BEFORE A "HIDDEN AUDIENCE" OF UNKNOWN BUT LARGE DIMENSIONS. 
THERE IS CERTAINLY A STRONG POSSIBILITY THAT THE "COCKY" WITNESS HAVING
A THIRST FOR THE LIMELIGHT WILL BECOME MORE "COCKY" UNDER THE INFLUENCE
OF TELEVISION.  AND WHO CAN SAY THAT THE JUROR WHO IS GRATIFIED BY
HAVING BEEN CHOSEN FOR A FRONT-LINE CASE, AN AMBITIOUS PROSECUTOR, A
PUBLICITY-MINDED DEFENSE COUNSEL, AND EVEN A CONSCIENTIOUS JUDGE WILL
NOT STRAY, ALBEIT UNCONSCIOUSLY, FROM DOING WHAT "COMES NATURALLY" INTO
PLUMING THEMSELVES FOR A SATISFACTORY TELEVISION "PERFORMANCE"? 

SURELY POSSIBILITIES OF THIS KIND CARRY GRAVE POTENTIALITIES FOR
DISTORTING THE INTEGRITY OF THE JUDICIAL PROCESS BEARING ON THE
DETERMINATION OF THE GUILT OR INNOCENCE OF THE ACCUSED, AND, MORE
PARTICULARLY, FOR CASTING DOUBT ON THE RELIABILITY OF THE FACT-FINDING
PROCESS CARRIED ON UNDER SUCH CONDITIONS.  SEE DOUGLAS, THE PUBLIC
TRIAL AND THE FREE PRESS, 46 A.B.A.J.  840 (1960).  TO BE SURE, SUCH
DISTORTIONS MAY PRODUCE NO TELLTALE SIGNS, BUT IN A HIGHLY PUBLICIZED
TRIAL THE DANGER OF THEIR PRESENCE IS SUBSTANTIAL, AND THEIR EFFECTS
MAY BE FAR MORE PERVASIVE AND DELETERIOUS THAN THE PHYSICAL DISRUPTIONS
WHICH ALL CONCEDE WOULD VITIATE A CONVICTION.  A LIVELY PUBLIC INTEREST
COULD INCREASE THE SIZE OF THE VIEWING AUDIENCE IMMENSELY, AND THE
MASSES OF SPECTATORS TO WHOM THE TRIAL IS TELECAST WOULD HAVE BECOME
EMOTIONALLY INVOLVED WITH THE CASE THROUGH THE DISSEMINATION OF
PRETRIAL PUBLICITY, THE USUAL CONCOMITANT OF SUCH A CASE.  THE PRESENCE
OF TELEVISION WOULD CERTAINLY EMPHASIZE TO THE TRIAL PARTICIPANTS THAT
THE CASE IS SOMETHING "SPECIAL."  PARTICULARLY TREACHEROUS SITUATIONS
ARE PRESENTED IN CASES WHERE PRETRIAL PUBLICITY HAS BEEN MASSIVE (FN2)
EVEN WHEN JURORS POSITIVELY STATE THEY WILL NOT BE INFLUENCED BY IT;
SEE RIDEAU V. LOUISIANA, 373 U.S. 723; IRVIN V. DOWD, 366 U.S. 717.  TO
INCREASE THE POSSIBILITY OF INFLUENCE AND THE DANGER OF A "POPULAR
VERDICT" BY SUBJECTING THE JURORS TO THE VIEW OF A MASS AUDIENCE WHOSE
APPROACH TO THE CASE HAS BEEN CONDITIONED BY PRETRIAL PUBLICITY CAN
ONLY MAKE A BAD SITUATION WORSE.  THE ENTIRE THRUST OF RULES OF
EVIDENCE AND THE OTHER PROTECTIONS ATTENDANT UPON THE MODERN TRIAL IS
TO KEEP EXTRANEOUS INFLUENCES OUT OF THE COURTROOM.  TURNER V.
LOUISIANA, 379 U.S. 466, 472-473.  AS WE RECENTLY OBSERVED IN TURNER,
"MR. JUSTICE HOLMES STATED NO MORE THAN A TRUISM WHEN HE OBSERVED THAT
'ANY JUDGE WHO HAS SAT WITH JURIES KNOWS THAT IN SPITE OF FORMS THEY
ARE EXTREMELY LIKELY TO BE IMPREGNATED BY THE ENVIRONING ATMOSPHERE.' 
FRANK V. MANGUM, 237 U.S. 309, AT 349 (DISSENTING OPINION)."  ID., AT
472.  (FN3)  THE KNOWLEDGE ON THE PART OF THE JURY AND OTHER TRIAL
PARTICIPANTS THAT THEY ARE BEING TELEVISED TO AN EMOTIONALLY INVOLVED
AUDIENCE CAN ONLY AGGRAVATE THE ATMOSPHERE CREATED BY PRETRIAL
PUBLICITY. 

THE STATE ARGUES THAT SPECIFIC PREJUDICE MUST BE SHOWN FOR THE DUE
PROCESS CLAUSE TO APPLY.  I DO NOT BELIEVE THAT THE FOURTEENTH
AMENDMENT IS SO IMPOTENT WHEN THE TRIAL PRACTICES IN QUESTION ARE
INSTINCT WITH DANGERS TO CONSTITUTIONAL GUARANTEES.  I AM AT A LOSS TO
UNDERSTAND HOW THE FOURTEENTH AMENDMENT CAN BE THOUGHT NOT TO ENCOMPASS
PROTECTION OF A STATE CRIMINAL TRIAL FROM THE DANGERS CREATED BY THE
INTRUSION OF COLLATERAL AND WHOLLY IRRELEVANT INFLUENCES INTO THE
COURTROOM.  THE COURT HAS NOT HESITATED IN THE PAST TO CONDEMN SUCH
PRACTICES, EVEN WITHOUT ANY POSITIVE SHOWING OF ISOLATABLE PREJUDICE. 
IN TURNER V. LOUISIANA, SUPRA, DECIDED JUST THIS TERM, WE HELD THAT THE
"POTENTIALITIES" FOR DISTORTION OF THE TRIAL CREATED BY A KEY WITNESS
SERVING AS BAILIFF TO A SEQUESTERED JURY WERE SUFFICIENT TO VIOLATE THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IN JACKSON V. DENNO,
378 U.S. 368, THE COURT MADE THE JUDGMENT THAT A TRIAL JUDGE'S
DETERMINATION OF A COERCED-CONFESSION ISSUE IS MORE LIKELY TO AVOID
PREJUDICE THAN A JURY DETERMINATION, A JUDGMENT WHICH INDEED OVERRODE A
LONG-STANDING CONTRARY STATE PRACTICE.  AND IN IRVIN V. DOWD, 366 U.S.
717, WE HELD THAT FLAMBOYANT PRETRIAL PUBLICITY CAST SUFFICIENT DOUBT
ON THE IMPARTIALITY OF THE JURY TO VITIATE A CONVICTION, EVEN IN THE
FACE OF STATEMENTS BY ALL THE JURORS THAT THEY WERE NOT SUBJECT TO ITS
INFLUENCE.  SEE 366 U.S., AT 729 (FRANKFURTER, J., CONCURRING).  OTHER
EXAMPLES OF INSTANCES IN WHICH THE COURT HAS EXERCISED ITS JUDGMENT AS
TO THE EFFECTS OF ONE THING OR ANOTHER ON HUMAN BEHAVIOR ARE
PLENTIFUL.  SEE, E.G., GRIFFIN V. CALIFORNIA, 380 U.S. 609; TANCIL V.
WOOLLS, 379 U.S. 19; MAPP V. OHIO, 367 U.S. 643 (COMPARE PEOPLE V.
DEFORE, 242 N.Y. 13, 150 N.E. 585); AVERY V. GEORGIA, 345 U.S. 559;
BROWN V. BOARD OF EDUCATION, 347 U.S. 483; TUMEY V. OHIO, 273 U.S.
510. 

THE JUDGMENT THAT THE PRESENCE OF TELEVISION IN THE COURTROOM
REPRESENTS A SERIOUS DANGER TO THE TRIAL PROCESS IS SUPPORTED BY A VAST
SEGMENT OF THE BAR OF THIS COUNTRY, AS EVIDENCED BY CANON 35 OF THE
CANONS OF JUDICIAL ETHICS OF THE AMERICAN BAR ASSOCIATION, COUNSELING
AGAINST SUCH PRACTICES, (FN4) THE VIEWS OF THE JUDICIAL CONFERENCE OF
THE UNITED STATES (INFRA, P. 601), RULE 53 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, AND EVEN THE "PERSONAL VIEWS" (POST, PP. 601-602)
OF THE JUSTICES ON THE DISSENTING SIDE OF THE PRESENT CASE. 

THE ARGUMENTS ADVANCED AGAINST THE CONSTITUTIONAL BANNING OF
TELEVISED TRIALS SEEM TO ME PECULIARLY UNPERSUASIVE.  IT IS SAID THAT
THE PICTORIAL BROADCASTING OF TRIALS WILL SERVE TO EDUCATE THE PUBLIC
AS TO THE NATURE OF THE JUDICIAL PROCESS.  WHATEVER FORCE SUCH
ARGUMENTS MIGHT HAVE IN RUN-OF-THE-MILL CASES, THEY CARRY LITTLE WEIGHT
IN CASES OF THE SORT BEFORE US, WHERE THE PUBLIC'S INTEREST IN VIEWING
THE TRIAL IS LIKELY TO BE ENGENDERED MORE BY CURIOSITY ABOUT THE
PERSONALITY OF THE WELL-KNOWN FIGURE WHO IS THE DEFENDANT (AS HERE), OR
ABOUT FAMOUS WITNESSES OR LAWYERS WHO WILL APPEAR ON THE TELEVISION
SCREEN, OR ABOUT THE DETAILS OF THE PARTICULAR CRIME INVOLVED, THAN BY
INNATE CURIOSITY TO LEARN ABOUT THE WORKINGS OF THE JUDICIAL PROCESS
ITSELF.  INDEED IT WOULD BE NAIVE NOT TO SUPPOSE THAT IT WOULD BE
LARGELY SUCH FACTORS THAT WOULD QUALIFY A TRIAL FOR COMMERCIAL
TELEVISION "BILLING," AND IT IS PRECISELY THAT KIND OF CASE WHERE THE
RISKS OF PERMITTING TELEVISION COVERAGE OF THE PROCEEDINGS ARE AT THEIR
GREATEST. 

IT IS ALSO ASSERTED THAT TELEVISED TRIALS WILL CAUSE WITNESSES TO BE
MORE TRUTHFUL, AND JURORS, JUDGES, AND LAWYERS MORE DILIGENT.  TO SAY
THE LEAST THIS ARGUMENT IS SOPHISTIC, FOR IT IS IMPOSSIBLE TO BELIEVE
THAT THE RELIABILITY OF A TRIAL AS A METHOD OF FINDING FACTS AND
DETERMINING GUILT OR INNOCENCE INCREASES IN RELATION TO THE SIZE OF THE
CROWD WHICH IS WATCHING IT.  ATTENDANCE BY INTERESTED SPECTATORS IN THE
COURTROOM WILL FULLY SATISFY THE SAFEGUARDS OF "PUBLIC TRIAL."  ONCE
OPENNESS IS THUS ASSURED, THE ADDITION OF MASSES OF SPECTATORS WOULD, I
VENTURE TO SAY, DETRACT RATHER THAN ADD TO THE RELAIBILITY OF THE
PROCESS.  SEE COX V. LOUISIANA, 379 U.S. 559, 562.  A TRIAL IN YANKEE
STADIUM, EVEN IF THE CROWD SAT IN STONY SILENCE, WOULD BE A
SUBSTANTIALLY DIFFERENT AFFAIR FROM A TRIAL IN A TRADITIONAL COURTROOM
UNDER TRADITIONAL CONDITIONS, AND THE DIFFERENCE WOULD NOT, I THINK, BE
THAT THE WITNESSES, LAWYERS, JUDGES, AND JURORS IN THE STADIUM WOULD BE
MORE TRUTHFUL, DILIGENT, AND CAPABLE OF RELIABLY FINDING FACTS AND
DETERMINING GUILT OR INNOCENCE.  (FN5)  THERE WILL BE NO DISAGREEMENT,
I AM SURE, AMONG THOSE COMPETENT TO JUDGE THAT PRECISELY THE OPPOSITE
WOULD LIKELY BE THE CASE. 

FINALLY, WE SHOULD NOT BE DETERRED FROM MAKING THE CONSTITUTIONAL
JUDGMENT WHICH THIS CASE DEMANDS BY THE PROSPECT THAT THE DAY MAY COME
WHEN TELEVISION WILL HAVE BECOME SO COMMONPLACE AN AFFAIR IN THE DAILY
LIFE OF THE AVERAGE PERSON AS TO DISSIPATE ALL REASONABLE LIKELIHOOD
THAT ITS USE IN COURTROOMS MAY DISPARAGE THE JUDICIAL PROCESSES.  IF
AND WHEN THAT DAY ARRIVES THE CONSTITUTIONAL JUDGMENT CALLED FOR NOW
WOULD OF COURSE BE SUBJECT TO RE-EXAMINATION IN ACCORDANCE WITH THE
TRADITIONAL WORKINGS OF THE DUE PROCESS CLAUSE.  AT THE PRESENT
JUNCTURE I CAN ONLY CONCLUDE THAT TELEVISED TRIALS, AT LEAST IN CASES
LIKE THIS ONE, POSSESS SUCH CAPABILITIES FOR INTERFERING WITH THE EVEN
COURSE OF THE JUDICIAL PROCESS THAT THEY ARE CONSTITUTIONALLY BANNED. 
ON THESE PREMISES I CONCUR IN THE OPINION OF THE COURT. 

FN1  THE TRIAL JUDGE ORDERED THAT THERE WAS TO BE NO AUDIO
TRANSMISSION OF THE WITNESSES' TESTIMONY.  THE WITNESSES, HOWEVER, WERE
PRESENT AT THE SEPTEMBER HEARING WHEN EVERYTHING WAS BROADCAST, AND THE
RECORD DOES NOT SHOW AFFIRMATIVELY THAT THEY WERE AWARE THAT THE
MICROPHONE WHICH CONFRONTED THEM DURING THE ACTUAL TRIAL WAS NOT BEING
USED FOR THE SAME PURPOSE. 

FN2  PETITIONER IN THIS CASE AMASSED 11 VOLUMES OF PRETRIAL PRESS
CLIPPINGS. 

FN3  THE COURT HAD OCCASION TO RECOGNIZE IN COX V. LOUISIANA, 379
U.S. 559, 565, THAT EVEN "JUDGES ARE HUMAN" AND NOT IMMUNE FROM OUTSIDE
ENVIRONMENTAL INFLUENCES. 

FN4  THE CONSISTENT POSITION OF THE AMERICAN BAR ASSOCIATION IS SET
OUT IN THE APPENDIX. 

FN5  THERE MAY, OF COURSE, BE A DIFFERENCE IN IMPACT UPON THE
ATMOSPHERE AND TRIAL PARTICIPANTS BETWEEN THE PHYSICAL PRESENCE OF
MASSES OF PEOPLE AND THE PRESENCE OF A CAMERA LENS WHICH PERMITS MASSES
OF PEOPLE TO OBSERVE THE PROCESS REMOTELY.  HOWEVER, THE CRITICAL
ELEMENT IS THE KNOWLEDGE OF THE TRIAL PARTICIPANTS THAT THEY ARE
SUBJECT TO SUCH VISUAL OBSERVATION, AN ELEMENT WHICH IS, OF COURSE,
PRESENT IN THIS CASE. 

            APPENDIX TO OPINION OF MR. JUSTICE HARLAN, CONCURRING. 

THE DEVELOPMENT OF CANON 35 IS SET OUT AT LENGTH IN THE AMICUS CURIAE
BRIEF OF THE AMERICAN BAR ASSOCIATION, PP. 3-8, AS FOLLOWS: 

"IT (CANON 35) WAS ORIGINALLY ADOPTED ON SEPTEMBER 30, 1937 BY THE
HOUSE OF DELEGATES (FN1) IN THE FOLLOWING FORM: 

"'PROCEEDINGS IN COURT SHOULD BE CONDUCTED WITH FITTING DIGNITY AND
DECORUM.  THE TAKING OF PHOTOGRAPHS IN THE COURT ROOM, DURING SESSIONS
OF THE COURT OR RECESSES BETWEEN SESSIONS, AND THE BROADCASTING OF
COURT PROCEEDINGS ARE CALCULATED TO DETRACT FROM THE ESSENTIAL DIGNITY
OF THE PROCEEDINGS, DEGRADE THE COURT AND CREATE MISCONCEPTIONS WITH
RESPECT THERETO IN THE MIND OF THE PUBLIC AND SHOULD NOT BE
PERMITTED.'  62 A.B.A. REP. 1134-35 (1937). 

"A SPECIAL COMMITTEE ON COOPERATION BETWEEN PRESS, RADIO AND BAR, AS
TO PUBLICITY INTERFERING WITH FAIR TRIAL OF JUDICIAL AND QUASI-JUDICIAL
PROCEEDINGS HAD REPORTED TO THE ASSOCIATION ITS GRAVE CONCERN WITH THE
DANGERS ATTENDANT UPON THE USE OF RADIO IN CONNECTION WITH TRIALS,
PARTICULARLY IN LIGHT OF THE SPECTACULAR PUBLICITY AND BROADCAST OF THE
TRIAL OF BRUNO HAUPTMANN.  (FN2)  THE COMMITTEE SPECIFICALLY REFERRED
TO THE EVIL OF 'TRIAL IN THE AIR'.  (FN3)  62 A.B.A. REP. 860 (1937). 

"AFTER THE ADOPTION OF JUDICIAL CANON 35, THE DIRECT RADIO
BROADCASTING OF COURT PROCEEDINGS WAS DISAPPROVED BY THE ASSOCIATION'S
COMMITTEE ON PROFESSIONAL ETHICS AND GRIEVANCES IN ITS OPINION NO. 212,
MARCH 15, 1941, AS BEING SPECIFICALLY CONDEMNED.  THE COMMITTEE QUOTED
WITH APPROVAL THE FOLLOWING STATEMENTS OF THE MICHIGAN AND DETROIT BAR
ASSOCIATIONS: 

"'SUCH BROADCASTS ARE UNFAIR TO THE DEFENDANT AND TO THE WITNESSES. 
THE NATURAL EMBARRASSMENT AND CONFUSION OF A CITIZEN ON TRIAL SHOULD
NOT BE INCREASED BY A REALIZATION THAT HIS VOICE AND HIS DIFFICULTIES
ARE BEING USED AS ENTERTAINMENT FOR A VAST RADIO AUDIENCE.  THE FEAR
EXPRESSED BY MOST PERSONS WHEN FACING AN AUDIENCE OR MICROPHONE IS A
MATTER OF COMMON KNOWLEDGE, AND BUT FEW DEFENDANTS OR WITNESSES CAN
PROPERLY CONCENTRATE ON FACTS AND TESTIFY FULLY AND FAIRLY WHEN SO
HANDICAPPED  ...  .  SUCH BROADCASTS ARE UNFAIR TO THE JUDGE, WHO
SHOULD BE PERMITTED TO DEVOTE HIS UNDIVIDED ATTENTION TO THE CASE,
UNMINDFUL OF THE EFFECT WHICH HIS COMMENTS OR DECISION MAY HAVE UPON
THE RADIO AUDIENCE.'  AMERICAN BAR ASSOCIATION, OPINIONS OF THE
COMMITTEE ON PROFESSIONAL ETHICS AND GRIEVANCES 426 (1957). 

"IN 1952, THE GROWING PROMINENCE OF TELEVISION AS A MEDIUM OF MASS
COMMUNICATION WAS DEALT WITH IN A REPORT OF THE SPECIAL COMMITTEE ON
TELEVISING AND BROADCASTING LEGISLATIVE AND JUDICIAL PROCEEDINGS
(HEADED BY THE LATE JOHN W. DAVIS).  77 A.B.A. REP. 607 (1952).  IN
CONDEMNING THE PRACTICE OF TELEVISING JUDICIAL PROCEEDINGS, THE
COMMITTEE CALLED ATTENTION TO THE FACT THAT: 

"'THE ATTENTION OF THE COURT, THE JURY, LAWYERS AND WITNESSES SHOULD
BE CONCENTRATED UPON THE TRIAL ITSELF AND OUGHT NOT TO BE DIVIDED WITH
THE TELEVISION OR BROADCAST AUDIENCE WHO FOR THE MOST PART HAVE MERELY
THE INTEREST OF CURIOSITY IN THE PROCEEDINGS.  IT IS NOT DIFFICULT TO
CONCEIVE THAT ALL PARTICIPANTS MAY BECOME OVER-CONCERNED WITH THE
IMPRESSION THEIR ACTIONS, RULINGS OR TESTIMONY WILL MAKE ON THE ABSENT
MULTITUDE.'  ID. AT 610. 

"AS A RESULT OF THIS REPORT, AND THE RECOMMENDATION OF THE COMMITTEE
ON PROFESSIONAL ETHICS AND GRIEVANCES, JUDICIAL CANON 35 WAS AMENDED BY
INSERTING A BAN ON THE 'TELEVISING' OF COURT PROCEEDINGS AND INSERTING
THE DESCRIPTIVE PHRASE 'DISTRACT THE WITNESS IN GIVING HIS TESTIMONY'
BEFORE THE PHRASE 'DEGRADE THE COURT.'  IN ADDITION, A SECOND PARAGRAPH
WAS ADDED PROVIDING FOR THE TELEVISING AND BROADCASTING OF CERTAIN
CEREMONIAL PROCEEDINGS.  ID. AT 110-11. 

"IN OCTOBER, 1954, THE BOARD OF GOVERNORS AUTHORIZED THE APPOINTMENT
OF A SPECIAL BAR-MEDIA CONFERENCE COMMITTEE ON FAIR TRIAL-FREE PRESS TO
MEET WITH REPRESENTATIVES OF THE PRESS, RADIO, AND TELEVISION.  THE
VIEWS OF BOTH SIDES WERE THOROUGHLY EXPLORED AND WERE PRESENTED IN
DETAIL IN THE SEPTEMBER, 1956 ISSUE OF THE AMERICAN BAR ASSOCIATION
JOURNAL.  (FN4)  AFTER EXTENSIVE JOINT DEBATE, NO SOLUTIONS OR
AGREEMENTS WERE REACHED.  83 A.B.A. REP. 790-91 (1958).  THE COMMITTEE
DID REPORT THAT IT WAS CONVINCED THAT: 

"'COURTROOM PHOTOGRAPHING OR BROADCASTING OR BOTH WOULD IMPOSE UNDUE
POLICE DUTIES UPON THE TRIAL JUDGE,  ...  THAT THE BROADCASTING AND THE
PHOTOGRAPHING IN THE COURTROOM MIGHT HAVE AN ADVERSE PSYCHOLOGICAL
EFFECT UPON TRIAL PARTICIPANTS, JUDGES, LAWYERS, WITNESSES AND JURIES,
...  AND THAT PARTIAL BROADCASTS OF TRIALS, PARTICULARLY ON TELEVISION,
MIGHT INFLUENCE PUBLIC OPINION WHICH IN TURN MIGHT INFLUENCE TRIAL
RESULTS  ...  ."  ID. AT 645. 

"FOLLOWING THE PRESENTATION OF THE BAR-MEDIA CONFERENCE COMMITTEE
REPORT AND IN CONNECTION WITH THE CONSIDERATION OF A REPORT AND
RECOMMENDATION OF A SPECIAL COMMITTEE OF THE AMERICAN BAR FOUNDATION
CREATED IN JULY, 1955 (83 A.B.A. REP. 643-45 (1958)), THE HOUSE OF
DELEGATES CONDUCTED A HEARING AS A 'COMMITTEE OF THE WHOLE' DURING ITS
FEBRUARY, 1958 SESSION AT WHICH PROPONENTS AND OPPONENTS OF JUDICIAL
CANON 35 WERE FULLY HEARD.  83 A.B.A. REP. 648-69 (1958).  THEREAFTER,
AT THE AUGUST, 1958 MEETING OF THE HOUSE OF DELEGATES, IT WAS DECIDED
TO HAVE A SPECIAL COMMITTEE STUDY CANON 35 AND: 

"'CONDUCT FURTHER STUDIES OF THE PROBLEM, INCLUDING THE OBTAINING OF
A BODY OF RELIABLE FACTUAL DATA ON THE EXPERIENCE OF JUDGES AND LAWYERS
IN THOSE COURTS WHERE EITHER PHOTOGRAPHY, TELEVISING OR BROADCASTING,
OR ALL OF THEM, ARE PERMITTED  ...  .  THE FUNDAMENTAL OBJECTIVES OF
THE COMMITTEE AND OF ALL OTHERS INTERESTED MUST BE TO CONSIDER AND MAKE
RECOMMENDATIONS WHICH WILL PRESERVE THE RIGHT OF FAIR TRIAL.'  83
A.B.A. REP. 284 (1958). 

"THE SPECIAL COMMITTEE FILED AN INTERIM REPORT AND RECOMMENDATIONS
WITH THE HOUSE OF DELEGATES IN AUGUST, 1962 SETTING FORTH THE 'AREA AND
PERSPECTIVE' OF ITS SURVEY AND STUDIES.  THE REPORT INCLUDED PORTIONS
OF TESTIMONY BY MEDIA REPRESENTATIVES TAKEN AT A HEARING HELD IN
CHICAGO ON FEBRUARY 18, 1962, AS WELL AS A SUMMARY OF THE COMMITTEE'S
INFORMAL CONFERENCE WITH CERTAIN REPRESENTATIVES FROM COLORADO AND
TEXAS.  IN ADDITION, THE REPORT INCLUDED WRITTEN COMMENTS BY OFFICERS
OF STATE BAR ASSOCIATIONS RESPONDING TO A COMMITTEE SURVEY, AND CERTAIN
GENERAL CORRESPONDENCE RECEIVED BY THE COMMITTEE REGARDING JUDICIAL
CANON 35.  THE REPORT ALSO LISTED SIGNIFICANT PUBLICATIONS FAVORING
EITHER REVISION OR RETENTION OF THE CANON  ...  .  (HEREINAFTER CITED
INT. REP.)    "THE SPECIAL COMMITTEE THEREAFTER SUBMITTED ITS FINAL
REPORT AND RECOMMENDATIONS, CONCLUDING THAT THE SUBSTANTIVE PROVISIONS
OF JUDICIAL CANON 35 REMAIN VALID AND 'SHOULD BE RETAINED AS ESSENTIAL
SAFEGUARDS OF THE INDIVIDUAL'S INVIOLATE AND PERSONAL RIGHT OF FAIR
TRIAL.'  ...  .  THE COMMITTEE DID RECOMMEND CERTAIN MINOR DELETIONS
...  AND CHANGES  ...  WHICH WERE ADOPTED BY THE HOUSE OF DELEGATES,
AFTER FULL DEBATE, ON FEBRUARY 5, 1963: 

"'THE TAKING OF PHOTOGRAPHS IN THE COURT ROOM, DURING SESSIONS OF THE
COURT OR RECESSES BETWEEN SESSIONS, AND THE BROADCASTING OR TELEVISING
OF COURT PROCEEDINGS ARE CALCULATED TO DETRACT FROM THE ESSENTIAL
DIGNITY OF THE PROCEEDINGS, DISTRACT THE PARTICIPANTS AND WITNESSES IN
GIVING HIS TESTIMONY, DEGRADE THE COURT AND CREATE MISCONCEPTIONS WITH
RESPECT THERETO IN THE MIND OF THE PUBLIC AND SHOULD NOT BE
PERMITTED.'  (FN5) 

"A VAST MAJORITY OF THE STATES HAVE VOLUNTARILY ADOPTED JUDICIAL
CANON 35 IN ONE FORM OR ANOTHER, AND IT HAS BEEN EMBODIED IN PRINCIPLE
IN RULE 53 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  IN A RECENT
RESOLUTION OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, THE
PHILOSOPHY OF CANON 35 WAS UNANIMOUSLY REAFFIRMED: 

"'RESOLVED, THAT THE JUDICIAL CONFERENCE OF THE UNITED STATES
CONDEMNS THE TAKING OF PHOTOGRAPHS IN THE COURTROOM OR ITS ENVIRONS IN
CONNECTION WITH ANY JUDICIAL PROCEEDING, AND THE BROADCASTING OF
JUDICIAL PROCEEDINGS BY RADIO, TELEVISION, OR OTHER MEANS, AND
CONSIDERS SUCH PRACTICES TO BE INCONSISTENT WITH FAIR JUDICIAL
PROCEDURE AND THAT THEY OUGHT NOT TO BE PERMITTED IN ANY FEDERAL
COURT.'  INT. REP. P. 97." 

(FOOTNOTES NUMBERED AND PARTIALLY OMITTED.) 

FN1  "THE HOUSE OF DELEGATES IS NOT ONLY THE GOVERNING BODY OF THE
AMERICAN BAR ASSOCIATION; BECAUSE OF THE PRESENCE OF REPRESENTATIVES OF
ALL STATE BAR ASSOCIATIONS, THE LARGEST AND MOST IMPORTANT LOCAL BAR
ASSOCIATIONS, AND OF OTHER IMPORTANT NATIONAL PROFESSIONAL GROUPS, IT
IS IN FACT A BROADLY REPRESENTATIVE POLICY FORUM FOR THE PROFESSION AS
A WHOLE." 

FN2  "SEE STATE V. HAUPTMANN, 115 N.J.L. 412, 180 ATL. 809 (CT. ERR. 
& APP.), CERT. DENIED, 296 U.S. 649 (1935)." 

FN3  "PRIOR TO THE ADOPTION OF JUDICIAL CANON 35, THE IMPROPRIETY OF
PERMITTING RADIO BROADCASTS OF COURT PROCEEDINGS WAS RECOGNIZED BY THE
COMMITTEE ON PROFESSIONAL ETHICS AND GRIEVANCES OF THE ASSOCIATION IN
ITS OPINION NO. 67, MARCH 21, 1932.  THE COMMITTEE HAD RECOURSE TO
JUDICIAL CANON 34 WHICH PROVIDES THAT A JUDGE SHOULD NOT ADMINISTER HIS
OFFICE 'FOR THE PURPOSE OF ADVANCING HIS PERSONAL AMBITIONS OR
INCREASING HIS POPULARITY.'  THE COMMITTEE FOUND THAT RADIO
BROADCASTING OF A TRIAL CHANGES 'WHAT SHOULD BE THE MOST SERIOUS OF
HUMAN INSTITUTIONS EITHER INTO AN ENTERPRISE FOR THE ENTERTAINMENT OF
THE PUBLIC OR OF ONE FOR PROMOTING PUBLICITY FOR THE JUDGE.'  AMERICAN
BAR ASSOCIATION, OPINIONS OF THE COMMITTEE ON PROFESSIONAL ETHICS AND
GRIEVANCES 163 (1957)." 

FN4  "42 A.B.A.J. 834, 843 (1956)." 

FN5  "THE FULL TEXT OF JUDICIAL CANON 35, AS AMENDED, IS AS FOLLOWS: 

"'IMPROPER PUBLICIZING OF COURT PROCEEDINGS. 

"'PROCEEDINGS IN COURT SHOULD BE CONDUCTED WITH FITTING DIGNITY AND
DECORUM.  THE TAKING OF PHOTOGRAPHS IN THE COURT ROOM, DURING SESSIONS
OF THE COURT OR RECESSES BETWEEN SESSIONS, AND THE BROADCASTING OR
TELEVISING OF COURT PROCEEDINGS DETRACT FROM THE ESSENTIAL DIGNITY OF
THE PROCEEDINGS, DISTRACT PARTICIPANTS AND WITNESSES IN GIVING
TESTIMONY, AND CREATE MISCONCEPTIONS WITH RESPECT THERETO IN THE MIND
OF THE PUBLIC AND SHOULD NOT BE PERMITTED. 

"'PROVIDED THAT THIS RESTRICTION SHALL NOT APPLY TO THE BROADCASTING
OR TELEVISING UNDER THE SUPERVISION OF THE COURT, OF SUCH PORTIONS OF
NATURALIZATION PROCEEDINGS (OTHER THAN THE INTERROGATION OF APPLICANTS)
AS ARE DESIGNED AND CARRIED OUT EXCLUSIVELY AS A CEREMONY FOR THE
PURPOSE OF PUBLICLY DEMONSTRATING IN AN IMPRESSIVE MANNER THE ESSENTIAL
DIGNITY AND THE SERIOUS NATURE OF NATURALIZATION.'" 

MR. JUSTICE STEWART, WHOM MR. JUSTICE BLACK, MR. JUSTICE BRENNAN, AND
MR. JUSTICE WHITE JOIN, DISSENTING. 

I CANNOT AGREE WITH THE COURT'S DECISION THAT THE CIRCUMSTANCES OF
THIS TRIAL LED TO A DENIAL OF THE PETITIONER'S FOURTEENTH AMENDMENT
RIGHTS.  I THINK THAT THE INTRODUCTION OF TELEVISION INTO A COURTROOM
IS, AT LEAST IN THE PRESENT STATE OF THE ART, AN EXTREMELY UNWISE
POLICY.  IT INVITES MANY CONSTITUTIONAL RISKS, AND IT DETRACTS FROM THE
INHERENT DIGNITY OF A COURTROOM.  BUT I AM UNABLE TO ESCALATE THIS
PERSONAL VIEW INTO A PER SE CONSTITUTIONAL RULE.  AND I AM UNABLE TO
FIND, ON THE SPECIFIC RECORD OF THIS CASE, THAT THE CIRCUMSTANCES
ATTENDING THE LIMITED TELEVISING OF THE PETITIONER'S TRIAL RESULTED IN
THE DENIAL OF ANY RIGHT GUARANTEED TO HIM BY THE UNITED STATES
CONSTITUTION. 

ON OCTOBER 22, 1962, THE PETITIONER WENT TO TRIAL IN THE SEVENTH
JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS, UPON AN INDICTMENT
CHARGING HIM WITH THE OFFENSES OF (1) SWINDLING, (2) THEFT BY FALSE
PRETENSES, AND (3) THEFT BY A BAILEE.  AFTER A WEEK SPENT IN SELECTING
A JURY, THE TRIAL ITSELF LASTED SOME THREE AND A HALF DAYS.  AT ITS
CONCLUSION THE JURY FOUND THE PETITIONER GUILTY OF THE OFFENSE OF
SWINDLING UNDER THE FIRST COUNT OF THE INDICTMENT.  THE TRIAL JUDGE
PERMITTED PORTIONS OF THE TRIAL PROCEEDINGS TO BE TELEVISED, UNDER THE
LIMITATIONS DESCRIBED BELOW.  HE ALSO GAVE NEWS PHOTOGRAPHERS
PERMISSION TO TAKE STILL PICTURES IN THE COURTROOM UNDER SPECIFIED
CONDITIONS. 

THE TEXAS COURT OF CRIMINAL APPEALS AFFIRMED THE PETITIONER'S
CONVICTION, AND WE GRANTED CERTIORARI, LIMITED TO A SINGLE QUESTION. 
THE QUESTION, AS PHRASED BY THE PETITIONER, IS THIS: 

"WHETHER THE ACTION OF THE TRIAL COURT, OVER PETITIONER'S CONTINUED
OBJECTION, DENIED HIM DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE
LAWS UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES, IN REQUIRING PETITIONER TO SUBMIT TO LIVE TELEVISION OF HIS
TRIAL, AND IN REFUSING TO ADOPT IN THIS ALL OUT PUBLICITY CASE, AS A
RULE OF TRIAL PROCEDURE, CANON 35 OF THE CANONS OF JUDICIAL ETHICS OF
THE AMERICAN BAR ASSOCIATION, AND INSTEAD ADOPTING AND FOLLOWING, OVER
DEFENDANT'S OBJECTION, CANON 28 OF THE CANONS OF JUDICIAL SECTION OF
THE INTEGRATED (STATE AGENCY) STATE BAR OF TEXAS." 

THE TWO CANONS OF JUDICIAL ETHICS REFERRED TO IN THE PETITIONER'S
STATEMENT OF THE QUESTION PRESENTED ARE SET OUT IN THE MARGIN.  (FN1)
BUT, AS THE COURT RIGHTLY SAYS, THE PROBLEM BEFORE US IS NOT ONE OF
CHOOSING BETWEEN THE CONFLICTING GUIDELINES REFLECTED IN THESE CANONS
OF JUDICIAL ETHICS.  IT IS A PROBLEM ROOTED IN THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  WE DEAL HERE WITH MATTERS SUBJECT TO
CONTINUOUS AND UNFORESEEABLE CHANGE - THE TECHNIQUES OF PUBLIC
COMMUNICATION.  IN AN AREA WHERE ALL THE VARIABLES MAY BE MODIFIED
TOMORROW, I CANNOT AT THIS TIME REST MY DETERMINATION ON HYPOTHETICAL
POSSIBILITIES NOT PRESENT IN THE RECORD OF THIS CASE.  THERE IS NO
CLAIM HERE BASED UPON ANY RIGHT GUARANTEED BY THE FIRST AMENDMENT.  BUT
IT IS IMPORTANT TO REMEMBER THAT WE MOVE IN AN AREA TOUCHING THE REALM
OF FREE COMMUNICATION, AND FOR THAT REASON, IF FOR NO OTHER, I WOULD BE
WARY OF IMPOSING ANY PER SE RULE WHICH, IN THE LIGHT OF FUTURE
TECHNOLOGY, MIGHT SERVE TO STIFLE OR ABRIDGE TRUE FIRST AMENDMENT
RIGHTS. 

                I. 

THE INDICTMENT WAS ORIGINALLY RETURNED BY A GRAND JURY IN REEVES
COUNTY, TEXAS, AND IT ENGENDERED WIDESPREAD PUBLICITY.  AFTER SOME
PRELIMINARY PROCEEDINGS THERE, THE CASE WAS TRANSFERRED FOR TRIAL TO
SMITH COUNTY, MORE THAN 500 MILES AWAY.  THE TRIAL WAS SET FOR
SEPTEMBER 24, 1962, BUT IT DID NOT COMMENCE ON THAT DATE.  INSTEAD,
THAT DAY AND THE NEXT WERE SPENT IN HEARINGS ON TWO MOTIONS FILED BY
DEFENSE COUNSEL:  A MOTION TO BAR TELEVISION AND NEWS CAMERAS FROM THE
TRIAL, AND A MOTION TO CONTINUE THE TRIAL TO A LATER DATE.  THESE
PROCEEDINGS WERE THEMSELVES TELECAST "LIVE," AND NEWS PHOTOGRAPHERS
WERE PERMITTED TO TAKE PICTURES IN THE COURTROOM.  THE ACTIVITIES OF
THE TELEVISION CREWS AND NEWS PHOTOGRAPHERS LED TO CONSIDERABLE
DISRUPTION OF THE HEARINGS.  (FN2)  AT THE CONCLUSION OF THE HEARINGS
THE MOTION FOR A CONTINUANCE WAS GRANTED, AND THE CASE RESET FOR TRIAL
ON OCTOBER 22.  THE MOTION TO BAR TELEVISION AND NEWS PHOTOGRAPHERS
FROM THE TRIAL WAS DENIED.  (FN3) 

ON OCTOBER 1, THE TRIAL JUDGE ISSUED AN ORDER DELINEATING WHAT
COVERAGE HE WOULD PERMIT DURING THE TRIAL.  (FN4)  AS A RESULT OF THAT
ORDER AND ENSUING CONFERENCES BETWEEN THE JUDGE AND THE REPRESENTATIVES
OF THE NEWS MEDIA, THE ENVIRONMENT FOR THE TRIAL, WHICH BEGAN ON
OCTOBER 22, WAS IN SHARP CONTRAST TO THAT OF THE SEPTEMBER HEARINGS. 
THE ACTUAL EXTENT OF TELEVISION AND NEWS PHOTOGRAPHY IN THE COURTROOM
WAS DESCRIBED BY THE JUDGE, AFTER THE TRIAL HAD ENDED, IN CERTIFYING
THE PETITIONER'S BILL OF EXCEPTIONS.  THIS DESCRIPTION IS CONFIRMED BY
MY UNDERSTANDING OF THE ENTIRE RECORD AND WAS AGREED TO AND ACCEPTED BY
DEFENSE COUNSEL: 

"PRIOR TO THE TRIAL OF OCTOBER 22, 1962, THERE WAS A BOOTH
CONSTRUCTED AND PLACED IN THE REAR OF THE COURTROOM PAINTED THE SAME OR
NEAR THE SAME COLOR AS THE COURTROOM WITH A SMALL OPENING ACROSS THE
TOP FOR THE USE OF CAMERAS  ...  . 

"LIVE TELECASTING AND RADIO BROADCASTING WERE NOT PERMITTED AND THE
ONLY TELECASTING WAS ON FILM WITHOUT SOUND, AND THERE WAS NOT ANY
BROADCASTING OF THE TRIAL BY RADIO PERMITTED.  EACH NETWORK, ABC, NBC,
CBS AND KRLD (KLTV) TELEVISION IN TYLER WAS ALLOWED A CAMERA IN THE
COURTROOM  ...  .  THE TELECASTING ON FILM OF THIS CASE WAS NOT A
CONTINUOUS CAMERA OPERATION AND ONLY PICTURES BEING TAKEN AT INTERVALS
DURING THE DAY TO BE USED ON THEIR REGULAR NEWS CASTS LATER IN THE
DAY.  THERE WERE SOME DAYS DURING THE TRIAL THAT THE CAMERAS OF ONLY
ONE OR TWO STATIONS WERE IN OPERATION, THE OTHERS NOT BEING IN
ATTENDANCE UPON THE COURT EACH AND EVERY DAY.  THE COURT DID NOT PERMIT
ANY CAMERAS OTHER THAN THOSE THAT WERE NOISELESS NOR WERE FLOOD LIGHTS
AND FLASH BULBS ALLOWED TO BE USED IN THE COURTROOM.  THE COURT
PERMITTED ONE NEWS PHOTOGRAPHER WITH ASSOCIATED PRESS, UNITED PRESS
INTERNATIONAL AND TYLER MORNING TELEGRAPH AND COURIER TIMES.  HOWEVER,
THEY WERE NOT PERMITTED INSIDE THE BAR; AND THE COURT DID NOT PERMIT
ANY TELECASTING OR PHOTOGRAPHING IN THE HALLWAYS LEADING INTO THE
COURTROOM OR ON THE SECOND FLOOR OF THE COURTHOUSE WHERE THE COURTROOM
IS SITUATED, IN ORDER THAT THE DEFENDANT AND HIS ATTORNEYS WOULD NOT BE
HINDERED, MOLESTED OR HARASSED IN APPROACHING OR LEAVING THE
COURTROOM.  THE COURT DID PERMIT LIVE TELECASTING OF THE ARGUMENTS OF
STATE'S COUNSEL AND THE RETURNING OF THE VERDICT BY THE JURY AND ITS
ACCEPTANCE BY THE COURT.  THE OPENING ARGUMENT OF THE DISTRICT ATTORNEY
OF SMITH COUNTY WAS CARRIED BY SOUND AND BECAUSE OF TRANSMISSION
DIFFICULTY, THERE WAS NOT ANY PICTURE.  THE CLOSING ARGUMENT FOR THE
STATE BY THE DISTRICT ATTORNEY OF REEVES COUNTY WERE CARRIED LIVE BY
BOTH PICTURE AND SOUND.  THE ARGUMENTS OF ATTORNEYS FOR DEFENDANT, JOHN
D. COFER AND HUME COFER, WERE NOT TELECAST OR BROADCAST AS THE COURT
GRANTED THEIR MOTION THAT SAME NOT BE PERMITTED. 

"THERE WAS NOT ANY TELEVISING AT ANY TIME DURING THE TRIAL EXCEPT
FROM THE BOOTH IN THE REAR OF THE COURTROOM, AND DURING THE ARGUMENT OF
COUNSEL TO THE JURY, NEWS PHOTOGRAPHY WAS REQUIRED TO OPERATE FROM THE
BOOTH SO THAT THEY WOULD NOT INTERFERE OR DETRACT FROM THE ATTENTION OF
EITHER THE JURORS OR THE ATTORNEYS. 

"DURING THE TRIAL THAT BEGAN ON OCTOBER 22ND, THERE WAS NEVER AT ANY
TIME ANY RADIO BROADCASTING EQUIPMENT IN THE COURTROOM.  THERE WAS SOME
EQUIPMENT IN A ROOM OFF OF THE COURTROOM WHERE THERE WERE PERIODIC NEWS
REPORTS GIVEN; AND THROUGHOUT THE TRIAL THAT BEGAN OCTOBER 22ND, NOT
ANY WITNESS REQUESTED NOT TO BE TELEVISED OR PHOTOGRAPHED WHILE THEY
WERE TESTIFYING.  NEITHER DID ANY JUROR, WHILE BEING INTERROGATED ON
VOIR DIRE OR AT ANY OTHER TIME, MAKE ANY REQUEST OF THE COURT NOT TO BE
TELEVISED." 

THUS, EXCEPT FOR THE CLOSING ARGUMENTS FOR THE PROSECUTION AND THE
RETURN OF THE JURY'S VERDICT, THERE WAS NO "LIVE" TELECASTING OF THE
TRIAL.  AND, EVEN FOR PURPOSES OF DELAYED TELECASTING ON LATER NEWS
PROGRAMS, NO WORDS OR OTHER SOUNDS WERE PERMITTED TO BE RECORDED WHILE
THE MEMBERS OF THE JURY WERE BEING SELECTED OR WHILE ANY WITNESS WAS
TESTIFYING.  NO WITNESSES AND NO JURORS WERE TELEVISED OR PHOTOGRAPHED
OVER THEIR OBJECTIONS.  (FN5) 

FINALLY, THE MEMBERS OF THE JURY SAY NO TELECASTS AND NO PICTURES OF
ANYTHING THAT WENT ON DURING THE TRIAL.  IN ACCORD WITH TEXAS LAW, THE
JURORS WERE SEQUESTERED, DAY AND NIGHT, FROM THE BEGINNING OF THE TRIAL
UNTIL IT ENDED.  (FN6)  THE JURORS WERE LODGED EACH NIGHT IN QUARTERS
PROVIDED FOR THAT PURPOSE IN THE COURTHOUSE ITSELF.  ON THE EVENING OF
NOVEMBER 6, BY AGREEMENT OF COUNSEL AND SPECIAL PERMISSION OF THE
COURT, THE MEMBERS OF THE JURY WERE PERMITTED TO WATCH THE ELECTION
RETURNS ON TELEVISION FOR A SHORT PERIOD.  FOR THIS PURPOSE A PORTABLE
TELEVISION WAS BROUGHT INTO THE JURY'S QUARTERS BY A COURT OFFICER, AND
OPERATED BY HIM.  OTHERWISE THE JURORS WERE NOT PERMITTED TO WATCH
TELEVISION AT ANY TIME DURING THE TRIAL.  THE ONLY NEWSPAPERS PERMITTED
THE JURY WERE ONES FROM WHICH ALL COVERAGE OF THE TRIAL HAD BEEN
PHYSICALLY REMOVED. 

                                       II. 

IT IS IMPORTANT TO BEAR IN MIND THE PRECISE LIMITS OF THE QUESTION
BEFORE US IN THIS CASE.  THE PETITION FOR A WRIT OF CERTIORARI ASKED US
TO REVIEW FOUR SEPARATE CONSTITUTIONAL CLAIMS.  WE DECLINED TO REVIEW
THREE OF THEM, AMONG WHICH WAS THE CLAIM THAT THE MEMBERS OF THE JURY
"HAD RECEIVED THROUGH THE NEWS MEDIA DAMAGING AND PREJUDICIAL EVIDENCE
...  ."  (FN7)  WE THUS LEFT UNDISTURBED THE DETERMINATION OF THE TEXAS
COURT OF CRIMINAL APPEALS THAT THE MEMBERS OF THE JURY WERE NOT
PREJUDICED BY THE WIDESPREAD PUBLICITY WHICH PRECEDED THE PETITIONER'S
TRIAL.  ONE INGREDIENT OF THIS PRETRIAL PUBLICITY WAS THE TELECAST OF
THE SEPTEMBER HEARINGS.  DESPITE THE CONFUSION IN THE COURTROOM DURING
THOSE HEARINGS, ALL THAT A POTENTIAL JUROR COULD HAVE POSSIBLY LEARNED
FROM WATCHING THEM ON TELEVISION WAS THAT THE PETITIONER'S CASE HAD
BEEN CALLED FOR TRIAL, AND THAT MOTIONS HAD BEEN MADE AND ACTED UPON
FOR A CONTINUANCE, AND TO EXCLUDE CAMERAS AND TELEVISION.  AT THOSE
HEARINGS, THERE WAS NO DISCUSSION WHATEVER OF ANYTHING BEARING ON THE
PETITIONER'S GUILT OR INNOCENCE.  THIS WAS CONCEDED BY THE PETITIONER'S
COUNSEL AT THE TRIAL.  (FN8)

BECAUSE OF OUR REFUSAL TO REVIEW THE PETITIONER'S CLAIM THAT PRETRIAL
PUBLICITY HAD A PREJUDICIAL EFFECT UPON THE JURORS IN THIS CASE, AND
BECAUSE, INSOFAR AS THE SEPTEMBER HEARINGS WERE AN ELEMENT OF THAT
PUBLICITY, THE CLAIM IS PATENTLY WITHOUT MERIT, THAT ISSUE IS SIMPLY
NOT HERE.  OUR DECISION IN RIDEAU V. LOUISIANA, 373 U.S. 723,
THEREFORE, HAS NO BEARING AT ALL IN THIS CASE.  THERE THE RECORD SHOWED
THAT THE INHABITANTS OF THE SMALL LOUISIANA PARISH WHERE THE TRIAL WAS
HELD HAD REPEATEDLY BEEN EXPOSED TO A TELEVISION FILM SHOWING "RIDEAU,
IN JAIL, FLANKED BY THE SHERIFF AND TWO STATE TROOPERS, ADMITTING IN
DETAIL THE COMMISSION OF THE ROBBERY, KIDNAPPING, AND MURDER, IN
RESPONSE TO LEADING QUESTIONS BY THE SHERIFF."  373 U.S., AT 725.  WE
FOUND THAT "ANY SUBSEQUENT COURT PROCEEDINGS IN A COMMUNITY SO
PERVASIVELY EXPOSED TO SUCH A SPECTACLE COULD BE BUT A HOLLOW
FORMALITY."  ID., AT 726.  SEE ALSO IRVIN V. DOWD, 366 U.S. 717. 

THE RIDEAU CASE WAS NO MORE THAN A CONTEMPORARY APPLICATION OF
ENDURING PRINCIPLES OF PROCEDURAL DUE PROCESS, PRINCIPLES REFLECTED IN
SUCH EARLIER CASES AS MOORE V. DEMPSEY, 261 U.S. 86; BROWN V.
MISSISSIPPI, 297 U.S. 278; AND CHAMBERS V. FLORIDA, 309 U.S. 227, 235
241.  "UNDER OUR CONSTITUTION'S GUARANTEE OF DUE PROCESS," WE SAID, "A
PERSON ACCUSED OF COMMITTING A CRIME IS VOUCHSAFED BASIC MINIMAL
RIGHTS.  AMONG THESE ARE THE RIGHT TO COUNSEL, THE RIGHT TO PLEAD NOT
GUILTY, AND THE RIGHT TO BE TRIED IN A COURTROOM PRESIDED OVER BY A
JUDGE."  373 U.S., AT 726-727.  WE HAD OCCASION TO APPLY THE SAME BASIC
CONCEPTS OF PROCEDURAL DUE PROCESS EARLIER THIS TERM IN TURNER V.
LOUISIANA, 379 U.S. 466.  "IN THE CONSTITUTIONAL SENSE, TRIAL BY JURY
IN A CRIMINAL CASE NECESSARILY IMPLIES AT THE VERY LEAST THAT THE
'EVIDENCE DEVELOPED' AGAINST A DEFENDANT SHALL COME FROM THE WITNESS
STAND IN A PUBLIC COURTROOM WHERE THERE IS FULL JUDICIAL PROTECTION OF
THE DEFENDANT'S RIGHT OF CONFRONTATION, OF CROSS-EXAMINATION, AND OF
COUNSEL."  379 U.S., AT 472-473. 

BUT WE DO NOT DEAL HERE WITH MOB DOMINATION OF A COURTROOM, WITH A
KANGAROO TRIAL, WITH A PREJUDICED JUDGE OR A JURY INFLAMED WITH BIAS. 
UNDER THE LIMITED GRANT OF CERTIORARI IN THIS CASE, THE SOLE QUESTION
BEFORE US IS AN ENTIRELY DIFFERENT ONE.  IT CONCERNS ONLY THE REGULATED
PRESENCE OF TELEVISION AND STILL PHOTOGRAPHY AT THE TRIAL ITSELF, WHICH
BEGAN ON OCTOBER 22, 1962.  ANY DISCUSSION OF PRETRIAL EVENTS CAN DO NO
MORE THAN OBSCURE THE IMPORTANT QUESTION WHICH IS ACTUALLY BEFORE US.

                                      III. 

IT IS OBVIOUS THAT THE INTRODUCTION OF TELEVISION AND NEWS CAMERAS
INTO A CRIMINAL TRIAL INVITES MANY SERIOUS CONSTITUTIONAL HAZARDS.  THE
VERY PRESENCE OF PHOTOGRAPHERS AND TELEVISION CAMERAMEN PLYING THEIR
TRADE IN A COURTROOM MIGHT BE SO COMPLETELY AND THOROUGHLY DISRUPTIVE
AND DISTRACTING AS TO MAKE A FAIR TRIAL IMPOSSIBLE.  THUS, IF THE SCENE
AT THE SEPTEMBER HEARING HAD BEEN REPEATED IN THE COURTROOM DURING THIS
JURY TRIAL, IT IS DIFFICULT TO CONCEIVE HOW A FAIR TRIAL IN THE
CONSTITUTIONAL SENSE COULD HAVE BEEN AFFORDED THE DEFENDANT.  (FN9)
AND EVEN IF, AS WAS TRUE HERE, THE TELEVISION CAMERAS ARE SO CONTROLLED
AND CONCEALED AS TO BE HARDLY PERCEPTIBLE IN THE COURTROOM ITSELF,
THERE ARE RISKS OF CONSTITUTIONAL DIMENSIONS THAT LURK IN THE VERY
PROCESS OF TELEVISING COURT PROCEEDINGS AT ALL. 

SOME OF THOSE RISKS ARE CATALOGUED IN THE AMICUS CURIAE BRIEF FILED
IN THIS CASE BY THE AMERICAN BAR ASSOCIATION:  "POTENTIAL OR ACTUAL
JURORS, IN THE ABSENCE OF ENFORCEABLE AND EFFECTIVE SAFEGUARDS, MAY
ARRIVE AT CERTAIN MISCONCEPTIONS REGARDING THE DEFENDANT AND HIS TRIAL
BY VIEWING TELEVISED PRE-TRIAL HEARINGS AND MOTIONS FROM WHICH THE JURY
IS ORDINARILY EXCLUDED.  EVIDENCE OTHERWISE INADMISSIBLE MAY LEAVE AN
INDELIBLE MARK  ...  .  ONCE THE TRIAL BEGINS, EXPOSURE TO NIGHTLY
REBROADCASTS OF SELECTED PORTIONS OF THE DAY'S PROCEEDINGS WILL BE
DIFFICULT TO GUARD AGAINST, AS JURORS SPEND FREQUENT EVENINGS BEFORE
THE TELEVISION SET.  THE OBVIOUS IMPACT OF WITNESSING REPEATED TRIAL
EPISODES AND HEARING ACCOMPANYING COMMENTARY, EPISODES ADMITTEDLY
CHOSEN FOR THEIR NEWS VALUE AND NOT FOR EVIDENTIARY PURPOSES, CAN SERVE
ONLY TO DISTORT THE JURORS' PERSPECTIVE  ...  .  DESPITE THE COURT'S
INJUNCTION NOT TO DISCUSS THE CASE, IT SEEMS UNDENIABLE THAT JURORS
WILL BE SUBJECT TO THE PRESSURE OF TELEVISION-WATCHING FAMILY, FRIENDS
AND INDEED, STRANGERS  ...  .  IT IS NOT TOO MUCH TO IMAGINE A JUROR
BEING CONFRONTED WITH HIS WIFE'S TELEVISION-ORIENTED VIEWPOINT  ...  .
ADDITIONALLY, THE JURORS' DAILY TELEVISION APPEARANCES MAY MAKE THEM
RECOGNIZABLE CELEBRITIES, LIKELY TO BE STOPPED BY PASSING STRANGERS, OR
PERHAPS HARRIED BY INTRUDING TELEPHONE CALLS  ...  ."  CONSTITUTIONAL
PROBLEMS OF ANOTHER KIND MIGHT ARISE IF A WITNESS OR JUROR WERE
SUBJECTED TO BEING TELEVISED OVER HIS OBJECTION. 

THE PLAIN FACT OF THE MATTER, HOWEVER, IS THAT NONE OF THESE THINGS
HAPPENED OR COULD HAVE HAPPENED IN THIS CASE.  THE JURORS THEMSELVES
WERE PREVENTED FROM SEEING ANY TELECASTS OF THE TRIAL, AND COMPLETELY
INSULATED FROM ASSOCIATION WITH ANY MEMBERS OF THE PUBLIC WHO DID SEE
SUCH TELECASTS.   THIS CASE, THEREFORE, DOES NOT REMOTELY RESEMBLE
TURNER V. LOUISIANA, 379 U.S. 466, WHERE, DURING THE TRIAL, THE JURORS
WERE SUBJECTED OUTSIDE THE COURTROOM TO UNMEASURED AND UNMEASURABLE
INFLUENCES BY KEY WITNESSES FOR THE PROSECUTION. 

IN THE COURTROOM ITSELF, THERE IS NOTHING TO SHOW THAT THE TRIAL
PROCEEDED IN ANY WAY OTHER THAN IT WOULD HAVE PROCEEDED IF CAMERAS AND
TELEVISION HAD NOT BEEN PRESENT.  IN APPEARANCE, THE COURTROOM WAS
PRACTICALLY UNALTERED.  THERE WAS NO OBTRUSIVENESS AND NO DISTRACTION,
NO NOISE AND NO SPECIAL LIGHTING.  THERE IS NO INDICATION ANYWHERE IN
THE RECORD OF ANY DISTURBANCE WHATEVER OF THE JUDICIAL PROCEEDINGS. 
THERE IS NO CLAIM THAT THE CONDUCT OF THE JUDGE, OR THAT ANY DEED OR
WORD OF COUNSEL, OR OF ANY WITNESSES, OR OF ANY JUROR, WAS INFLUENCED
IN ANY WAY BY THE PRESENCE OF PHOTOGRAPHERS OR BY TELEVISION. 

FURTHERMORE, FROM A READING OF THE RECORD IT IS CRYSTAL CLEAR THAT
THIS WAS NOT A TRIAL WHERE THE JUDGE WAS HARASSED OR CONFUSED OR
LACKING IN COMMAND OF THE PROCEEDINGS BEFORE THE JURY.  NOT ONCE, AFTER
THE FIRST WITNESS WAS CALLED, WAS THERE ANY INTERRUPTION AT ALL OF THE
TRIAL PROPER TO SECURE A RULING CONCERNING THE PRESENCE OF CAMERAMEN IN
THE COURTROOM.  THERE WAS NO OCCASION, DURING THE ENTIRE TRIAL - UNTIL
AFTER THE JURY ADJOURNED TO REACH ITS VERDICT - FOR ANY CAUTIONARY WORD
TO MEMBERS OF THE PRESS IN THE COURTROOM.  THE ONLY TIME A MOTION WAS
MADE, THE JURY WAS NOT IN THE COURTROOM.  THE TRIAL ITSELF WAS A MOST
MUNDANE AFFAIR, TOTALLY LACKING IN THE LURID AND COMPLETELY
EMOTIONLESS.  THE EVIDENCE RELATED SOLELY TO THE CIRCUMSTANCES IN WHICH
VARIOUS DOCUMENTS HAD BEEN SIGNED AND NEGOTIATED.  IT WAS HIGHLY
TECHNICAL, IF NOT DOWNRIGHT DULL.  THE PETITIONER CALLED NO WITNESSES
AND COUNSEL FOR PETITIONER MADE ONLY A BRIEF CLOSING ARGUMENT TO THE
JURY.  THERE IS NOTHING TO INDICATE THAT THE ISSUES INVOLVED WERE OF
THE KIND WHERE EMOTION COULD HOLD SWAY.  THE TRANSCRIPT OF THE TRIAL
BELIES ANY NOTION THAT FREQUENT INTERRUPTIONS AND INCONSISTENT RULINGS
COMMUNICATED TO THE JURY ANY SENSE THAT THE JUDGE WAS UNABLE TO
CONCENTRATE ON PROTECTING THE DEFENDANT AND CONDUCTING THE TRIAL IN A
FAIR MANNER, IN ACCORDANCE WITH THE STATE AND FEDERAL CONSTITUTIONS. 

                                       IV. 

WHAT ULTIMATELY EMERGES FROM THIS RECORD, THEREFORE, IS ONE BALD
QUESTION - WHETHER THE FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION PROHIBITS ALL TELEVISION CAMERAS FROM A STATE COURTROOM
WHENEVER A CRIMINAL TRIAL IS IN PROGRESS.  IN THE LIGHT OF THIS RECORD
AND WHAT WE NOW KNOW ABOUT THE IMPACT OF TELEVISION ON A CRIMINAL
TRIAL, I CAN FIND NO SUCH PROHIBITION IN THE FOURTEENTH AMENDMENT OR IN
ANY OTHER PROVISION OF THE CONSTITUTION.  IF WHAT OCCURRED DID NOT
DEPRIVE THE PETITIONER OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL,
THEN THE FACT THAT THE PUBLIC COULD VIEW THE PROCEEDINGS ON TELEVISION
HAS NO CONSTITUTIONAL SIGNIFICANCE.  THE CONSTITUTION DOES NOT MAKE US
ARBITERS OF THE IMAGE THAT A TELEVISED STATE CRIMINAL TRIAL PROJECTS TO
THE PUBLIC. 

WHILE NO FIRST AMENDMENT CLAIM IS MADE IN THIS CASE THERE ARE
LIMITATIONS IN THE OPINIONS FILED BY MY BRETHREN IN THE MAJORITY WHICH
STRIKE ME AS DISTURBINGLY ALIEN TO THE FIRST AND FOURTEENTH AMENDMENTS'
GUARANTEES AGAINST FEDERAL OR STATE INTERFERENCE WITH THE FREE
COMMUNICATION OF INFORMATION AND IDEAS.  THE SUGGESTION THAT THERE ARE
LIMITS UPON THE PUBLIC'S RIGHT TO KNOW WHAT GOES ON IN THE COURTS
CAUSES ME DEEP CONCERN.  THE IDEA OF IMPOSING UPON ANY MEDIUM OF
COMMUNICATIONS THE BURDEN OF JUSTIFYING ITS PRESENCE IS CONTRARY TO
WHERE I HAD ALWAYS THOUGHT THE PRESUMPTION MUST LIE IN THE AREA OF
FIRST AMENDMENT FREEDOMS.  SEE SPEISER V. RANDALL, 357 U.S. 513, 525. 
AND THE PROPOSITION THAT NONPARTICIPANTS IN A TRIAL MIGHT GET THE
"WRONG IMPRESSION" FROM UNFETTERED REPORTING AND COMMENTARY CONTAINS AN
INVITATION TO CENSORSHIP WHICH I CANNOT ACCEPT.  WHERE THERE IS NO
DISRUPTION OF THE "ESSENTIAL REQUIREMENT OF THE FAIR AND ORDERLY
ADMINISTRATION OF JUSTICE," "FREEDOM OF DISCUSSION SHOULD BE GIVEN THE
WIDEST RANGE."  PENNEKAMP V. FLORIDA, 328 U.S. 331, 347; BRIDGES V.
CALIFORNIA, 314 U.S. 252.  CF. COX V. LOUISIANA, 379 U.S. 559, 563. 

I DO NOT THINK THAT THE CONSTITUTION DENIES TO THE STATE OR TO
INDIVIDUAL TRIAL JUDGES ALL DISCRETION TO CONDUCT CRIMINAL TRIALS WITH
TELEVISION CAMERAS PRESENT, NO MATTER HOW UNOBTRUSIVE THE CAMERAS MAY
BE.  I CANNOT SAY AT THIS TIME THAT IT IS IMPOSSIBLE TO HAVE A
CONSTITUTIONAL TRIAL WHENEVER ANY PART OF THE PROCEEDINGS IS TELEVISED
OR RECORDED ON TELEVISION FILM.  I CANNOT NOW HOLD THAT THE
CONSTITUTION ABSOLUTELY BARS TELEVISION CAMERAS FROM EVERY CRIMINAL
COURTROOM, EVEN IF THEY HAVE NO IMPACT UPON THE JURY, NO EFFECT UPON
ANY WITNESS, AND NO INFLUENCE UPON THE CONDUCT OF THE JUDGE. 

FOR THESE REASONS I WOULD AFFIRM THE JUDGMENT. 

FN1  CANONS OF JUDICIAL ETHICS.  AMERICAN BAR ASSOCIATION:  JUDICIAL
CANON 35.  IMPROPER PUBLICIZING OF COURT PROCEEDINGS. 

"PROCEEDINGS IN COURT SHOULD BE CONDUCTED WITH FITTING DIGNITY AND
DECORUM.  THE TAKING OF PHOTOGRAPHS IN THE COURT ROOM, DURING SESSIONS
OF THE COURT OR RECESSES BETWEEN SESSIONS, AND THE BROADCASTING OR
TELEVISING OF COURT PROCEEDINGS DETRACT FROM THE ESSENTIAL DIGNITY OF
THE PROCEEDINGS, DISTRACT PARTICIPANTS AND WITNESSES IN GIVING
TESTIMONY, AND CREATE MISCONCEPTIONS WITH RESPECT THERETO IN THE MIND
OF THE PUBLIC AND SHOULD NOT BE PERMITTED. 

"PROVIDED THAT THIS RESTRICTION SHALL NOT APPLY TO THE BROADCASTING
OR TELEVISING, UNDER THE SUPERVISION OF THE COURT, OF SUCH PORTIONS OF
NATURALIZATION PROCEEDINGS (OTHER THAN THE INTERROGATION OF APPLICANTS)
AS ARE DESIGNED AND CARRIED OUT EXCLUSIVELY AS A CEREMONY FOR THE
PURPOSE OF PUBLICLY DEMONSTRATING IN AN IMPRESSIVE MANNER THE ESSENTIAL
DIGNITY AND THE SERIOUS NATURE OF NATURALIZATION." 

CANONS OF JUDICIAL ETHICS, INTEGRATED STATE BAR OF TEXAS:  JUDICIAL
CANON 28.  IMPROPER PUBLICIZING OF COURT PROCEEDINGS. 

"PROCEEDINGS IN COURT SHOULD BE CONDUCTED WITH FITTING DIGNITY AND
DECORUM.  THE TAKING OF PHOTOGRAPHS IN THE COURT ROOM, DURING SESSIONS
OF THE COURT OR RECESSES BETWEEN SESSIONS, AND THE BROADCASTING OR
TELEVISING OF COURT PROCEEDINGS UNLESS PROPERLY SUPERVISED AND
CONTROLLED, MAY DETRACT FROM THE ESSENTIAL DIGNITY OF THE PROCEEDINGS,
DISTRACT PARTICIPANTS AND WITNESSES IN GIVING TESTIMONY, AND CREATE
MISCONCEPTIONS WITH RESPECT THERETO IN THE MIND OF THE PUBLIC.  THE
SUPERVISION AND CONTROL OF SUCH TRIAL COVERAGE SHALL BE LEFT TO THE
TRIAL JUDGE WHO HAS THE INHERENT POWER TO EXCLUDE OR CONTROL COVERAGE
IN THE PROPER CASE IN THE INTEREST OF JUSTICE. 

"IN CONNECTION WITH THE CONTROL OF SUCH COVERAGE THE FOLLOWING
DECLARATION OF PRINCIPLES IS ADOPTED: 

"(1)  THERE SHOULD BE NO USE OF FLASH BULBS OR OTHER ARTIFICIAL
LIGHTING. 

"(2)  NO WITNESS, OVER HIS EXPRESSED OBJECTION, SHOULD BE
PHOTOGRAPHED, HIS VOICE BROADCAST OR BE TELEVISED. 

"(3)  THE REPRESENTATIVES OF NEWS MEDIA MUST OBTAIN PERMISSION OF THE
TRIAL JUDGE TO COVER BY PHOTOGRAPH, BROADCASTING OR TELEVISING, AND
SHALL COMPLY WITH THE RULES PRESCRIBED BY THE JUDGE FOR THE EXERCISE OF
THE PRIVILEGE. 

"(4)  ANY VIOLATION OF THE COURT'S RULES SHALL BE PUNISHED AS A
CONTEMPT. 

"(5)  WHERE A JUDGE HAS REFUSED TO ALLOW COVERAGE OR HAS REGULATED
IT, ANY ATTEMPT, OTHER THAN ARGUMENT BY REPRESENTATIVES OF THE NEWS
MEDIA DIRECTLY WITH THE COURT, TO BRING PRESSURE OF ANY KIND ON THE
JUDGE, PENDING FINAL DISPOSITION OF THE CAUSE IN TRIAL, SHALL BE
PUNISHED AS A CONTEMPT." 

FN2  A CONTEMPORARY NEWSPAPER ACCOUNT DESCRIBED THE SCENE AS
FOLLOWS: 

"A TELEVISION MOTOR VAN, BIG AS AN INTERCONTINENTAL BUS, WAS PARKED
OUTSIDE THE COURTHOUSE AND THE SECOND-FLOOR COURTROOM WAS A FOREST OF
EQUIPMENT.  TWO TELEVISION CAMERAS HAD BEEN SET UP INSIDE THE BAR AND
FOUR MORE MARKED CAMERAS WERE ALIGNED JUST OUTSIDE THE GATES.    "A
MICROPHONE STUCK ITS 12-INCH SNOUT INSIDE THE JURY BOX, NOW OCCUPIED BY
AN OVERFLOW OF REPORTERS FROM THE PRESS TABLE, AND THREE MICROPHONES
CONFRONTED JUDGE DUNAGAN ON HIS BENCH.  CABLES AND WIRES SNAKED OVER
THE FLOOR."  THE NEW YORK TIMES, SEPTEMBER 23, 1962, P. 46, COL. 4. 

FN3  IN RULING ON THE MOTION, THE TRIAL JUDGE STATED: 

"IN THE PAST, IT HAS BEEN THE POLICY OF THIS COURT TO PERMIT
TELEVISING IN THE COURT ROOM UNDER THE RULES AND SUPERVISION OF THE
COURT.  HERETOFORE, I HAVE NOT ENCOUNTERED ANY DIFFICULTY WITH IT. I
WAS UNABLE TO OBSERVE ANY DETRACTION FROM THE WITNESSES OR THE
ATTORNEYS IN THOSE CASES.  WE HAVE WATCHED TELEVISION, OF COURSE, GROW
UP IN ITS INFANCY AND NOW INTO ITS MATURITY; AND IT IS A NEWS MEDIA. 
SO I REALLY DO NOT SEE ANY JUSTIFIED REASON WHY IT SHOULD NOT BE
PERMITTED TO TAKE ITS PROPER SEAT IN THE FAMILY CIRCLE.  HOWEVER, IT
WILL BE UNDER THE STRICT SUPERVISION OF THE COURT.  I KNOW THERE HAS
BEEN PRO AND CON ABOUT TELEVISING IN THE COURT ROOM.  I HAVE HEARD SOME
SAY THAT IT MAKES A CIRCUS OUT OF THE COURT.  I HAD THE PRIVILEGE
YESTERDAY MORNING OF SITTING IN MY HOME AND VIEWING A SERMON BY THE
FIRST BAPTIST CHURCH OVER IN DALLAS AND CERTAINLY IT WASN'T ANY CIRCUS
IN THAT CHURCH; AND I FEEL THAT IF IT IS A PROPER INSTRUMENT IN THE
HOUSE OF THE LORD, IT IS NOT OUT OF PLACE IN THE COURT ROOM, IF
PROPERLY SUPERVISED. 

"NOW, TELEVISION IS GOING TO BE TELEVISING WHATEVER THE SCENE IS
HERE.  IF YOU WANT TO WATCH A BALL GAME AND THAT IS WHAT THEY TELEVISE,
YOU ARE GOING TO SEE A BALL GAME.  IF YOU WANT TO SEE A PREACHER AND
HEAR A SERMON, YOU TUNE IN ON THAT AND THAT IS WHAT YOU ARE GOING TO
GET.  IF THE COURT PERMITS A CIRCUS IN THIS COURT ROOM IT WILL BE
TELEVISED, THAT IS TRUE, BUT THEY WILL NOT BE CREATING A CIRCUS. 

"NOW, THE MOST IMPORTANT POINT IS WHETHER OR NOT IT WOULD INTERFERE
WITH A FAIR AND IMPARTIAL TRIAL OF THIS DEFENDANT.  THAT IS THE MOST
IMPORTANT POINT, AND THAT IS THE PURPOSE, OR WILL BE THE PRIMARY
PURPOSE OF THE COURT, TO INSURE THAT HE GETS THAT FAIR TRIAL. 

     * *         *         *         * 

"THERE IS NOT ANYTHING THE COURT CAN DO ABOUT THE INTEREST IN THIS
CASE, BUT I CAN CONTROL YOUR ACTIVITIES AND YOUR CONDUCT HERE; AND I
CAN ASSURE YOU NOW THAT THIS COURT IS NOT GOING TO BE TURNED INTO A
CIRCUS WITH TV OR WITHOUT IT.  WHATEVER ACTION IS NECESSARY FOR THE
COURT TO TAKE TO INSURE THAT, THE COURT WILL TAKE IT. 

     *      *         *         *         * 

"THERE HAS BEEN ONE CONSIDERATION THAT THE COURT HAS GIVEN AND IT IS
THAT THIS IS A SMALL COURT ROOM AND THERE WILL BE HUNDREDS OF PEOPLE
TRYING TO GET INTO THIS COURT ROOM TO WITNESS THIS TRIAL.  I BELIEVE WE
WOULD HAVE LESS CONFUSION IF THEY WOULD STAY AT HOME AND STAY OUT OF
THE COURT ROOM AND LOOK IN ON THE TRIAL.  WITH ALL OF THOSE PEOPLE
TRYING TO CROWD IN AND PUSH INTO THIS COURT ROOM, THAT IS ANOTHER
CONSIDERATION I HAVE GIVEN TO IT." 

FN4  "IN MY STATEMENT OF SEPTEMBER 24, 1962, ADMITTING TELEVISION AND
OTHER CAMERAS IN THE COURTROOM DURING THE TRIAL OF BILLIE SOL ESTES, I
SAID CAMERAS WOULD BE ALLOWED UNDER THE CONTROL AND DIRECTION OF THE
COURT SO LONG AS THEY DID NOT VIOLATE THE LEGAL RIGHTS OF THE DEFENDANT
OR THE STATE OF TEXAS. 

     *         *         *         *         * 

"IN LINE WITH MY STATEMENT OF SEPTEMBER 24, 1962, I AM AT THIS TIME
INFORMING BOTH TELEVISION AND RADIO THAT LIVE BROADCASTING OR
TELECASTING BY EITHER NEWS MEDIA CANNOT AND WILL NOT BE PERMITTED
DURING THE INTERROGATION OF JURORS IN TESTING THEIR QUALIFICATIONS, OR
OF THE TESTIMONY GIVEN BY THE WITNESSES, AS TO DO SO WOULD BE IN
VIOLATION OF ART. 644 OF THE CODE OF CRIMINAL PROCEDURE OF TEXAS, WHICH
PROVIDES AS FOLLOWS:  'AT THE REQUEST OF EITHER PARTY, THE WITNESSES ON
BOTH SIDES MAY BE SWORN AND PLACED IN THE CUSTODY OF AN OFFICER AND
REMOVED OUT OF THE COURT ROOM TO SOME PLACE WHERE THEY CAN NOT HEAR THE
TESTIMONY AS DELIVERED BY ANY OTHER WITNESS IN THE CASE.  THIS IS
TERMED PLACING WITNESSES UNDER RULE.' 

"  ...  EACH TELEVISION NETWORK AND THE LOCAL TELEVISION STATION WILL
BE ALLOWED ONE FILM CAMERA WITHOUT SOUND IN THE COURT ROOM AND FILM
WILL BE MADE AVAILABLE TO OTHER TELEVISION STATIONS ON A POOL BASIS. 
MARSHALL PENGRA, MANAGER OF TELEVISION STATION KLTV, TYLER, WILL BE IN
CHARGE OF THE INDEPENDENT POOL AND INDEPENDENT STATIONS MAY CONTACT
HIM.  THE SAME WILL BE TRUE OF CAMERAS FOR THE PRESS, WHICH WILL BE
LIMITED TO THE LOCAL PRESS, ASSOCIATED PRESS AND UNITED PRESS. 

     *         *         *         *         * 

"I AM MAKING THIS STATEMENT AT THIS TIME IN ORDER THAT THE TWO NEWS
MEDIA AFFECTED MAY HAVE SUFFICIENT NOTICE BEFORE THE CASE IS CALLED ON
OCTOBER 22ND. 

"THE RULES I HAVE SET FORTH ABOVE CONCERNING THE USE OF CAMERAS ARE
SUBJECT TO CHANGE IF I FIND THAT THEY ARE TOO RESTRICTIVE OR NOT
WORKABLE, FOR ANY REASON." 

FN5  THERE WERE NINE WITNESSES FOR THE PROSECUTION AND NO WITNESSES
FOR THE DEFENSE. 

FN6  ARTS. 668, 745, AND 725, TEX. CODE CRIM. PROC. 

FN7  PETITION FOR WRIT OF CERTIORARI, QUESTION 3, P. 3. 

FN8  "A.  (MR. HUME COFER, COUNSEL FOR PETITIONER)  ...  .  THE
PUBLICITY THAT WAS GIVEN THIS TRIAL ON THE LAST OCCASION AND THE NUMBER
OF CAMERAS HERE, I THINK WAS SUFFICIENT TO SPREAD THE NEWS OF THIS CASE
THROUGHOUT THE COUNTRY, TO EVERY AVAILABLE JUROR; AND IT IS MY OPINION
THAT ON THAT OCCASION, THERE WERE SO MANY CAMERAS AND SO MUCH
PARAPHERNALIA HERE THAT IT GAVE AN OPPORTUNITY FOR EVERY PROSPECTIVE
JUROR IN SMITH COUNTY TO KNOW ABOUT THIS CASE. 

"Q.  NOT ABOUT THE FACTS OF THE CASE? 

"A.  NO, SIR; NOT ABOUT THE FACTS, NOR ANY OF THE EVIDENCE." 

FN9  SEE NOTE 2. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BRENNAN JOINS, DISSENTING. 

I AGREE WITH MR. JUSTICE STEWART THAT A FINDING OF CONSTITUTIONAL
PREJUDICE ON THIS RECORD ENTAILS ERECTING A FLAT BAN ON THE USE OF
CAMERAS IN THE COURTROOM AND BELIEVE THAT IT IS PREMATURE TO PROMULGATE
SUCH A BROAD CONSTITUTIONAL PRINCIPLE AT THE PRESENT TIME.  THIS IS THE
FIRST CASE IN THIS COURT DEALING WITH THE SUBJECT OF TELEVISION
COVERAGE OF CRIMINAL TRIALS; OUR CASES DEALING WITH ANALOGOUS SUBJECTS
ARE NOT REALLY CONTROLLING, CF. RIDEAU V. LOUISIANA, 373 U.S. 723; AND
THERE IS, ON THE WHOLE, A VERY LIMITED AMOUNT OF EXPERIENCE IN THIS
COUNTRY WITH TELEVISION COVERAGE OF TRIALS.  IN MY VIEW, THE CURRENTLY
AVAILABLE MATERIALS ASSESSING THE EFFECT OF CAMERAS IN THE COURTROOM
ARE TOO SPARSE AND FRAGMENTARY TO CONSTITUTE THE BASIS FOR A
CONSTITUTIONAL JUDGMENT PERMANENTLY BARRING ANY AND ALL FORMS OF
TELEVISION COVERAGE.  AS WAS SAID IN ANOTHER CONTEXT, "WE KNOW TOO
LITTLE OF THE ACTUAL IMPACT  ...  TO REACH A CONCLUSION ON THE BARE
BONES OF THE  ... EVIDENCE BEFORE US."  WHITE MOTOR CO. V. UNITED
STATES, 372 U.S. 253, 261.  IT MAY WELL BE, HOWEVER, THAT AS FURTHER
EXPERIENCE AND INFORMED JUDGMENT DO BECOME AVAILABLE, THE USE OF
CAMERAS IN THE COURTROOM, AS IN THIS TRIAL, WILL PROVE TO POSE SUCH A
SERIOUS HAZARD TO THE DEFENDANT'S RIGHTS THAT A VIOLATION OF THE
FOURTEENTH AMENDMENT WILL BE FOUND WITHOUT A SHOWING ON THE RECORD OF
SPECIFIC DEMONSTRABLE PREJUDICE TO THE DEFENDANT.  COMPARE WOLF V.
COLORADO, 338 U.S. 25, WITH MAPP V. OHIO, 367 U.S. 643; BETTS V. BRADY,
316 U.S. 455, WITH GIDEON V. WAINWRIGHT, 372 U.S. 335; STEIN V. NEW
YORK, 346 U.S. 156, WITH JACKSON V. DENNO, 378 U.S. 368, 389-390. 

THE OPINION OF THE COURT IN EFFECT PRECLUDES FURTHER OPPORTUNITY FOR
INTELLIGENT ASSESSMENT OF THE PROBABLE HAZARDS IMPOSED BY THE USE OF
CAMERAS AT CRIMINAL TRIALS.  SERIOUS THREATS TO CONSTITUTIONAL RIGHTS
IN SOME INSTANCES JUSTIFY A PROPHYLACTIC RULE DISPENSING WITH THE
NECESSITY OF SHOWING SPECIFIC PREJUDICE IN A PARTICULAR CASE.  RIDEAU
V. LOUISIANA, 373 U.S. 723, 727; JACKSON V. DENNO, 378 U.S. 368, 389. 
BUT THESE ARE INSTANCES IN WHICH THERE HAS BEEN AMPLE EXPERIENCE ON
WHICH TO BASE AN INFORMED JUDGMENT.  HERE, ALTHOUGH OUR EXPERIENCE IS
INADEQUATE AND OUR JUDGMENT CORRESPONDINGLY INFIRM, THE COURT
DISCOURAGES FURTHER MEANINGFUL STUDY OF THE USE OF TELEVISION AT
CRIMINAL TRIALS.  ACCORDINGLY, I DISSENT. 

MR. JUSTICE BRENNAN. 

I WRITE MERELY TO EMPHASIZE THAT ONLY FOUR OF THE FIVE JUSTICES
VOTING TO REVERSE REST ON THE PROPOSITION THAT TELEVISED CRIMINAL
TRIALS ARE CONSTITUTIONALLY INFIRM, WHATEVER THE CIRCUMSTANCES. 
ALTHOUGH THE OPINION ANNOUNCED BY MY BROTHER CLARK PURPORTS TO BE AN
"OPINION OF THE COURT," BY BROTHER HARLAN SUBSCRIBES TO A SIGNIFICANTLY
LESS SWEEPING PROPOSITION.  HE STATES: 

"THE ESTES TRIAL WAS A HEAVILY PUBLICIZED AND HIGHLY SENSATIONAL
AFFAIR.  I THEREFORE PUT ASIDE ALL OTHER TYPES OF CASES  ...  .  THE
RESOLUTION OF THOSE FURTHER QUESTIONS SHOULD AWAIT AN APPROPRIATE CASE;
THE COURT SHOULD PROCEED ONLY STEP BY STEP IN THIS UNPLOWED FIELD.  THE
OPINION OF THE COURT NECESSARILY GOES NO FURTHER, FOR ONLY THE FOUR
MEMBERS OF THE MAJORITY WHO UNRESERVEDLY JOIN THE COURT'S OPINION WOULD
RESOLVE THOSE QUESTIONS NOW."  ANTE, PP. 590-591. 

THUS TODAY'S DECISION IS NOT A BLANKET CONSTITUTIONAL PROHIBITION
AGAINST THE TELEVISING OF STATE CRIMINAL TRIALS. 

WHILE I JOIN THE DISSENTS OF MY BROTHERS STEWART AND WHITE, I DO SO
ON THE UNDERSTANDING THAT THEIR USE OF THE EXPRESSIONS "THE COURT'S
OPINION" OR "THE OPINION OF THE COURT" REFERS ONLY TO THOSE VIEWS OF
OUR FOUR BRETHREN WHICH MY BROTHER HARLAN EXPLICITLY STATES HE SHARES. 

..END :
























LINKLETTER V. WALKER 381 U.S. 618 


NO. 95.  ARGUED MARCH 11, 1965.  - DECIDED JUNE 7, 1965.  - 323 F.2D 11,
AFFIRMED. 


PETITIONER WAS CONVICTED OF BURGLARY BY A LOUISIANA COURT AND HIS
CONVICTION WAS AFFIRMED BY THE HIGHEST STATE COURT.  THEREAFTER, IN
MAPP V. OHIO, 367 U.S. 643, THIS COURT HELD THAT EVIDENCE ILLEGALLY
SEIZED IS INADMISSIBLE IN A STATE CRIMINAL TRIAL, AND PETITIONER
APPLIED FOR A WRIT OF HABEAS CORPUS.  THE WRIT WAS DENIED BY THE
FEDERAL DISTRICT COURT AND BY THE COURT OF APPEALS, WHICH FOUND THE
SEARCHES OF PETITIONER'S PERSON AND PROPERTY ILLEGAL BUT HELD THAT THE
MAPP EXCLUSIONARY RULE WAS NOT RETROSPECTIVE.  HELD:  THE EXCLUSIONARY
RULE ANNOUNCED IN MAPP DOES NOT APPLY TO STATE COURT CONVICTIONS WHICH
HAD BECOME FINAL BEFORE ITS RENDITION.  PP. 622-640. 

(A)  THE EFFECT OF A SUBSEQUENT RULING OF INVALIDITY ON PRIOR FINAL
JUDGMENTS WHEN COLLATERALLY ATTACKED IS NOT AUTOMATIC RETROACTIVE
INVALIDITY BUT DEPENDS UPON A CONSIDERATION OF PARTICULAR RELATIONS AND
CONDUCT, OR RIGHTS CLAIMED TO HAVE BECOME VESTED, OF STATUS, OF PRIOR
DETERMINATIONS DEEMED TO HAVE FINALITY, AND OF PUBLIC POLICY IN THE
LIGHT OF THE NATURE OF THE STATUTE AND ITS PREVIOUS APPLICATION. 
CHICOT DRAINAGE DIST. V. BAXTER STATE BANK, 308 U.S. 371.  P. 627. 

(B)  NO DISTINCTION IS DRAWN BETWEEN CIVIL AND CRIMINAL LITIGATION. 
P. 627. 

(C)  THE CONSTITUTION NEITHER PROHIBITS NOR REQUIRES RETROACTIVE
EFFECT AND IN EACH CASE THE COURT DETERMINES WHETHER RETROACTIVE OR
PROSPECTIVE APPLICATION IS APPROPRIATE.  THIS APPROACH IS PARTICULARLY
CORRECT WITH REFERENCE TO THE UNREASONABLE SEARCH AND SEIZURE
PROSCRIPTION OF THE FOURTH AMENDMENT.  P. 629. 

(D)  THE PRIMARY PURPOSE OF MAPP V. OHIO WAS THE ENFORCEMENT OF THE
FOURTH AMENDMENT THROUGH THE INCLUSION OF THE EXCLUSIONARY RULE WITHIN
ITS RIGHTS, AND THIS PURPOSE WOULD NOT BE ADVANCED BY MAKING THE RULE
RETROACTIVE.  PP. 636-637. 

(E)  OTHER AREAS IN WHICH RULES HAVE BEEN APPLIED RETROSPECTIVELY
CONCERNED THE FAIRNESS OF THE TRIAL, WHICH IS NOT UNDER ATTACK HERE. 
P. 639. 

(F)  THE DATE OF THE SEIZURE IN MAPP (WHICH PRECEDED THAT HERE) IS OF
NO LEGAL SIGNIFICANCE; THE CRUCIAL DATE IS THE DATE OF THE MAPP
JUDGMENT WHICH CHANGED THE RULE.  P. 639. 

LINKLETTER V. WALKER, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN MAPP V. OHIO, 367 U.S. 643 (1961), WE HELD THAT THE EXCLUSION OF
EVIDENCE SEIZED IN VIOLATION OF THE SEARCH AND SEIZURE PROVISIONS OF
THE FOURTH AMENDMENT WAS REQUIRED OF THE STATES BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  IN SO DOING WE OVERRULED WOLF V.
COLORADO, 338 U.S. 25 (1949), TO THE EXTENT THAT IT FAILED TO APPLY THE
EXCLUSIONARY RULE TO THE STATES.  (FN1)  THIS CASE PRESENTS THE
QUESTION OF WHETHER THIS REQUIREMENT OPERATES RETROSPECTIVELY UPON
CASES FINALLY DECIDED IN THE PERIOD PRIOR TO MAPP.  THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT HELD THAT IT DID NOT, 323 F.2D 11, AND WE
GRANTED CERTIORARI IN ORDER TO SETTLE WHAT HAS BECOME A MOST
TROUBLESOME QUESTION IN THE ADMINISTRATION OF JUSTICE.  (FN2)  377 U.S.
930.  WE AGREE WITH THE COURT OF APPEALS. 

THE PETITIONER WAS CONVICTED IN A LOUISIANA DISTRICT COURT ON MAY 28,
1959, OF "SIMPLE BURGLARY."  AT THE TIME OF HIS ARREST HE HAD BEEN
UNDER SURVEILLANCE FOR TWO DAYS AS A SUSPECT IN CONNECTION WITH ANOTHER
BURGLARY.  HE WAS TAKEN TO THE POLICE STATION, SEARCHED, AND KEYS WERE
TAKEN FROM HIS PERSON.  AFTER HE WAS BOOKED AND PLACED IN JAIL, OTHER
OFFICERS TOOK HIS KEYS, ENTERED AND SEARCHED HIS HOME, AND SEIZED
CERTAIN PROPERTY AND PAPERS.  LATER HIS PLACE OF BUSINESS WAS ENTERED
AND SEARCHED AND SEIZURES WERE EFFECTED.  THESE INTRUSIONS WERE MADE
WITHOUT A WARRANT.  THE STATE DISTRICT COURT HELD THAT THE ARRESTING
OFFICERS HAD REASONABLE CAUSE FOR THE ARREST UNDER LOUISIANA LAW AND
FINDING PROBABLE CAUSE TO SEARCH AS AN INCIDENT TO ARREST IT HELD THE
SEIZURES VALID.  THE SUPREME COURT OF LOUISIANA AFFIRMED IN FEBRUARY
1960. 

ON JUNE 19, 1961, MAPP WAS ANNOUNCED.  IMMEDIATELY THEREAFTER
PETITIONER FILED AN APPLICATION FOR HABEAS CORPUS IN THE STATE COURT ON
THE BASIS OF MAPP.  THE WRIT BEING DENIED IN THE LOUISIANA COURTS, HE
THEN FILED A LIKE APPLICATION IN THE UNITED STATES DISTRICT COURT. 
AFTER DENIAL THERE HE APPEALED AND THE COURT OF APPEALS AFFIRMED.  IT
FOUND THE SEARCHES TOO REMOTE FROM THE ARREST AND THEREFORE ILLEGAL BUT
HELD THAT THE CONSTITUTIONAL REQUIREMENT OF EXCLUSION OF THE EVIDENCE
UNDER MAPP WAS NOT RETROSPECTIVE.  PETITIONER HAS TWO POINTS:  (1) THAT
THE COURT OF APPEALS ERRED IN HOLDING THAT MAPP WAS NOT RETROSPECTIVE;
AND (2) THAT EVEN THOUGH MAPP BE HELD NOT TO OPERATE RETROSPECTIVELY,
THE SEARCH IN HIS CASE WAS SUBSEQUENT TO THAT IN MAPP, AND WHILE HIS
FINAL CONVICTION WAS LONG PRIOR TO OUR DISPOSITION OF IT, HIS CASE
SHOULD NEVERTHELESS BE GOVERNED BY MAPP. 

INITIALLY WE MUST CONSIDER THE TERM "RETROSPECTIVE" FOR THE PURPOSES
OF OUR OPINION.  A RULING WHICH IS PURELY PROSPECTIVE DOES NOT APPLY
EVEN TO THE PARTIES BEFORE THE COURT.  (FN3)  SEE, E.G., ENGLAND V.
LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411 (1964).  SEE
ALSO GREAT NORTHERN R. CO. V. SUNBURST OIL & REFINING CO., 287 U.S. 358
(1932).  HOWEVER, WE ARE NOT HERE CONCERNED WITH PURE PROSPECTIVITY
SINCE WE APPLIED THE RULE ANNOUNCED IN MAPP TO REVERSE MISS MAPP'S
CONVICTION.  THAT DECISION HAS ALSO BEEN APPLIED TO CASES STILL PENDING
ON DIRECT REVIEW AT THE TIME IT WAS RENDERED.  (FN4)  THEREFORE, IN
THIS CASE, WE ARE CONCERNED ONLY WITH WHETHER THE EXCLUSIONARY
PRINCIPLE ENUNCIATED IN MAPP APPLIES TO STATE COURT CONVICTIONS WHICH
HAD BECOME FINAL (FN5) BEFORE RENDITION OF OUR OPINION. 

        I. 

WHILE TO SOME IT MAY SEEM "ACADEMIC" IT MIGHT BE HELPFUL TO OTHERS
FOR US TO BRIEFLY OUTLINE THE HISTORY AND THEORY OF THE PROBLEM
PRESENTED. 

AT COMMON LAW THERE WAS NO AUTHORITY FOR THE PROPOSITION THAT
JUDICIAL DECISIONS MADE LAW ONLY FOR THE FUTURE.  (FN6)  BLACKSTONE
STATED THE RULE THAT THE DUTY OF THE COURT WAS NOT TO "PRONOUNCE A NEW
LAW, BUT TO MAINTAIN AND EXPOUND THE OLD ONE."  1 BLACKSTONE,
COMMENTARIES 69 (15TH ED. 1809).  (FN7)  THIS COURT FOLLOWED THAT RULE
IN NORTON V. SHELBY COUNTY, 118 U.S. 425 (1886), (FN8) HOLDING THAT
UNCONSTITUTIONAL ACTION "CONFERS NO RIGHTS; IT IMPOSES NO DUTIES; IT
AFFORDS NO PROTECTION; IT CREATES NO OFFICE; IT IS, IN LEGAL
CONTEMPLATION, AS INOPERATIVE AS THOUGH IT HAD NEVER BEEN PASSED."  AT
442.  THE JUDGE RATHER THAN BEING THE CREATOR OF THE LAW WAS BUT ITS
DISCOVERER.  GRAY, NATURE AND SOURCES OF THE LAW 222 (1ST ED. 1909). 
IN THE CASE OF THE OVERRULED DECISION, WOLF V. COLORADO, SUPRA, HERE,
IT WAS THOUGHT TO BE ONLY A FAILURE AT TRUE DISCOVERY AND WAS
CONSEQUENTLY NEVER THE LAW; WHILE THE OVERRULING ONE, MAPP, WAS NOT
"NEW LAW BUT AN APPLICATION OF WHAT IS, AND THERETOFORE HAD BEEN, THE
TRUE LAW."  SHULMAN, RETROACTIVE LEGISLATION, 13 ENCYCLOPAEDIA OF THE
SOCIAL SCIENCES 355, 356 (1934). 

ON THE OTHER HAND, AUSTIN MAINTAINED THAT JUDGES DO IN FACT DO
SOMETHING MORE THAN DISCOVER LAW; THEY MAKE IT INTERSTITIALLY BY
FILLING IN WITH JUDICIAL INTERPRETATION THE VAGUE, INDEFINITE, OR
GENERIC STATUTORY OR COMMON-LAW TERMS THAT ALONE ARE BUT THE EMPTY
CREVICES OF THE LAW.  IMPLICIT IN SUCH AN APPROACH IS THE ADMISSION
WHEN A CASE IS OVERRULED THAT THE EARLIER DECISION WAS WRONGLY
DECIDED.  HOWEVER, RATHER THAN BEING ERASED BY THE LATER OVERRULING
DECISION IT IS CONSIDERED AS AN EXISTING JURIDICAL FACT UNTIL
OVERRULED, AND INTERMEDIATE CASES FINALLY DECIDED UNDER IT ARE NOT TO
BE DISTURBED. 

THE BLACKSTONIAN VIEW RULED ENGLISH JURISPRUDENCE AND CAST ITS SHADOW
OVER OUR OWN AS EVIDENCED BY NORTON V. SHELBY COUNTY, SUPRA.  HOWEVER,
SOME LEGAL PHILOSOPHERS CONTINUED TO INSIST THAT SUCH A RULE WAS OUT OF
TUNE WITH ACTUALITY LARGELY BECAUSE JUDICIAL REPEAL OFTTIME DID "WORK
HARDSHIP TO THOSE WHO HAD TRUSTED TO ITS EXISTENCE."  CARDOZO, ADDRESS
TO THE N.Y. BAR ASSN., 55 REP. N.Y. STATE BAR ASSN. 263, 296-297
(1932).  THE AUSTINIAN VIEW GAINED SOME ACCEPTANCE OVER A HUNDRED YEARS
AGO WHEN IT WAS DECIDED THAT ALTHOUGH LEGISLATIVE DIVORCES WERE ILLEGAL
AND VOID, THOSE PREVIOUSLY GRANTED WERE IMMUNIZED BY A PROSPECTIVE
APPLICATION OF THE RULE OF THE CASE.  BINGHAM V. MILLER, 17 OHIO 445
(1848).  AND AS EARLY AS 1863 THIS COURT DREW ON THE SAME CONCEPT IN
GELPCKE V. DUBUQUE, 1 WALL.  175 (1863).  THE SUPREME COURT OF IOWA HAD
REPEATEDLY HELD THAT THE IOWA LEGISLATURE HAD THE POWER TO AUTHORIZE
MUNICIPALITIES TO ISSUE BONDS TO AID IN THE CONSTRUCTION OF RAILROADS. 
AFTER THE CITY OF DUBUQUE HAD ISSUED SUCH BONDS, THE IOWA SUPREME COURT
REVERSED ITSELF AND HELD THAT THE LEGISLATURE LACKED SUCH POWER.  IN
GELPCKE, WHICH AROSE AFTER THE OVERRULING DECISION, THIS COURT HELD
THAT THE BONDS ISSUED UNDER THE APPARENT AUTHORITY GRANTED BY THE
LEGISLATURE WERE COLLECTIBLE.  "HOWEVER WE MAY REGARD THE LATE
OVERRULING CASE IN IOWA AS AFFECTING THE FUTURE, IT CAN HAVE NO EFFECT
UPON THE PAST."  AT 206.  THE THEORY WAS, AS MR. JUSTICE HOLMES STATED
IN KUHN V. FAIRMONT COAL CO., 215 U.S. 349, 371 (1910), "THAT A CHANGE
OF JUDICIAL DECISION AFTER A CONTRACT HAS BEEN MADE ON THE FAITH OF AN
EARLIER ONE THE OTHER WAY IS A CHANGE OF THE LAW."  AND IN 1932 MR.
JUSTICE CARDOZO IN GREAT NORTHERN R. CO. V. SUNBURST OIL & REFINING
CO., 287 U.S. 358, APPLIED THE AUSTINIAN APPROACH IN DENYING A FEDERAL
CONSTITUTIONAL DUE PROCESS ATTACK ON THE PROSPECTIVE APPLICATION OF A
DECISION OF THE MONTANA SUPREME COURT.  HE SAID THAT A STATE "MAY MAKE
A CHOICE FOR ITSELF BETWEEN THE PRINCIPLE OF FORWARD OPERATION AND THAT
OF RELATION BACKWARD."  AT 364.  MR. JUSTICE CARDOZO BASED THE RULE ON
THE AVOIDANCE OF "INJUSTICE OR HARDSHIP" CITING A LONG LIST OF STATE
AND FEDERAL CASES SUPPORTING THE PRINCIPLE THAT THE COURTS HAD THE
POWER TO SAY THAT DECISIONS THOUGH LATER OVERRULED "ARE LAW NONE THE
LESS FOR INTERMEDIATE TRANSACTIONS."  AT 364.  EIGHT YEARS LATER CHIEF
JUSTICE HUGHES IN CHICOT COUNTY DRAINAGE DIST. V. BAXTER STATE BANK,
308 U.S. 371 (1940), IN DISCUSSING THE PROBLEM MADE IT CLEAR THAT THE
BROAD STATEMENTS OF NORTON, SUPRA, "MUST BE TAKEN WITH
QUALIFICATIONS."  HE REASONED THAT THE ACTUAL EXISTENCE OF THE LAW
PRIOR TO THE DETERMINATION OF UNCONSTITUTIONALITY "IS AN OPERATIVE FACT
AND MAY HAVE CONSEQUENCES WHICH CANNOT JUSTLY BE IGNORED.  THE PAST
CANNOT ALWAYS BE ERASED BY A NEW JUDICIAL DECLARATION."  HE LAID DOWN
THE RULE THAT THE "EFFECT OF THE SUBSEQUENT RULING AS TO INVALIDITY MAY
HAVE TO BE CONSIDERED IN VARIOUS ASPECTS."  AT 374. 

ONE FORM OF LIMITED RETROACTION WHICH DIFFERS SOMEWHAT FROM THE TYPE
DISCUSSED ABOVE IS THAT WHICH WAS ESTABLISHED IN UNITED STATES V.
SCHOONER PEGGY, 1 CRANCH 103 (1801).  THERE, A SCHOONER HAD BEEN SEIZED
UNDER AN ORDER OF THE PRESIDENT WHICH COMMANDED THAT ANY ARMED FRENCH
VESSEL FOUND ON THE HIGH SEAS BE CAPTURED.  AN ORDER OF CONDEMNATION
WAS ENTERED ON SEPTEMBER 23, 1800.  HOWEVER, WHILE THE CASE WAS PENDING
BEFORE THIS COURT THE UNITED STATES SIGNED AN AGREEMENT WITH FRANCE
PROVIDING THAT ANY PROPERTY CAPTURED AND NOT "DEFINITIVELY CONDEMNED"
SHOULD BE RESTORED.  CHIEF JUSTICE MARSHALL SAID: 

"IT IS IN THE GENERAL TRUE THAT THE PROVINCE OF AN APPELLATE COURT IS
ONLY TO ENQUIRE WHETHER A JUDGMENT WHEN RENDERED WAS ERRONEOUS OR NOT. 
BUT IF SUBSEQUENT TO THE JUDGMENT AND BEFORE THE DECISION OF THE
APPELLATE COURT, A LAW INTERVENES AND POSITIVELY CHANGES THE RULE WHICH
GOVERNS, THE LAW MUST BE OBEYED, OR ITS OBLIGATION DENIED  ...  AND
WHERE INDIVIDUAL RIGHTS  ...  ARE SACRIFICED FOR NATIONAL PURPOSES  ...
THE COURT MUST DECIDE ACCORDING TO EXISTING LAWS, AND IF IT BE
NECESSARY TO SET ASIDE A JUDGMENT  ...  WHICH CANNOT BE AFFIRMED BUT IN
VIOLATION OF LAW, THE JUDGMENT MUST BE SET ASIDE."  AT 110. 

THIS SAME APPROACH WAS SUBSEQUENTLY APPLIED IN INSTANCES WHERE A
STATUTORY CHANGE INTERVENED, CARPENTER V. WABASH R. CO., 309 U.S. 23
(1940); WHERE A CONSTITUTIONAL AMENDMENT WAS ADOPTED, UNITED STATES V.
CHAMBERS, 291 U.S. 217 (1934); (FN9) AND WHERE JUDICIAL DECISION
ALTERED OR OVERRULED EARLIER CASE LAW, VANDENBARK V. OWENS-ILLINOIS
GLASS CO., 311 U.S. 538 (1941).  (FN10) 

UNDER OUR CASES IT APPEARS (1) THAT A CHANGE IN LAW WILL BE GIVEN
EFFECT WHILE A CASE IS ON DIRECT REVIEW, SCHOONER PEGGY, SUPRA, (FN11)
AND (2) THAT THE EFFECT OF THE SUBSEQUENT RULING OF INVALIDITY ON PRIOR
FINAL JUDGMENTS WHEN COLLATERALLY ATTACKED IS SUBJECT TO NO SET
"PRINCIPLE OF ABSOLUTE RETROACTIVE INVALIDITY" BUT DEPENDS UPON A
CONSIDERATION OF "PARTICULAR RELATIONS  ...  AND PARTICULAR CONDUCT
...  OF RIGHTS CLAIMED TO HAVE BECOME VESTED, OF STATUS, OF PRIOR
DETERMINATIONS DEEMED TO HAVE FINALITY"; AND "OF PUBLIC POLICY IN THE
LIGHT OF THE NATURE BOTH OF THE STATUTE AND OF ITS PREVIOUS
APPLICATION."  CHICOT COUNTY DRAINAGE DIST. V. BAXTER STATE BANK,
SUPRA, AT 374. 

THAT NO DISTINCTION WAS DRAWN BETWEEN CIVIL AND CRIMINAL LITIGATION
IS SHOWN BY THE LANGUAGE USED NOT ONLY IN SCHOONER PEGGY, SUPRA, AND
CHICOT COUNTY, SUPRA, BUT ALSO IN SUCH CASES AS STATE V. JONES, 44 N.M.
623, 107 P.2D 324 (1940) AND JAMES V. UNITED STATES, 366 U.S. 213
(1961).  IN THE LATTER CASE, THIS COURT LAID DOWN A PROSPECTIVE
PRINCIPLE IN OVERRULING COMMISSIONER V. WILCOX.  327 U.S. 404 (1946),
"IN A MANNER THAT WILL NOT PREJUDICE THOSE WHO MIGHT HAVE RELIED ON
IT."  (FN12) AT 221.  THUS, THE ACCEPTED RULE TODAY IS THAT IN
APPROPRIATE CASES THE COURT MAY IN THE INTEREST OF JUSTICE MAKE THE
RULE PROSPECTIVE.  AND "THERE IS MUCH TO BE SAID IN FAVOR OF SUCH A
RULE FOR CASES ARISING IN THE FUTURE."  MOSSER V. DARROW, 341 U.S. 267,
AT 276 (DISSENTING OPINION OF BLACK, J.). 

WHILE THE CASES DISCUSSED ABOVE DEAL WITH THE INVALIDITY OF STATUTES
OR THE EFFECT OF A DECISION OVERTURNING LONG-ESTABLISHED COMMON-LAW
RULES, THERE SEEMS TO BE NO IMPEDIMENT - CONSTITUTIONAL OR
PHILOSOPHICAL - TO THE USE OF THE SAME RULE IN THE CONSTITUTIONAL AREA
WHERE THE EXIGENCIES OF THE SITUATION REQUIRE SUCH AN APPLICATION.  IT
IS TRUE THAT HERETOFORE, WITHOUT DISCUSSION, WE HAVE APPLIED NEW
CONSTITUTIONAL RULES TO CASES FINALIZED BEFORE THE PROMULGATION OF THE
RULE.  (FN13) PETITIONER CONTENDS THAT OUR METHOD OF RESOLVING THOSE
PRIOR CASES DEMONSTRATES THAT AN ABSOLUTE RULE OF RETROACTION PREVAILS
IN THE AREA OF CONSTITUTIONAL ADJUDICATION.  HOWEVER, WE BELIEVE THAT
THE CONSTITUTION NEITHER PROHIBITS NOR REQUIRES RETROSPECTIVE EFFECT. 
AS JUSTICE CARDOZO SAID, "WE THINK THE FEDERAL CONSTITUTION HAS NO
VOICE UPON THE SUBJECT."  (FN14) 

ONCE THE PREMISE IS ACCEPTED THAT WE ARE NEITHER REQUIRED TO APPLY,
NOR PROHIBITED FROM APPLYING, A DECISION RETROSPECTIVELY, WE MUST THEN
WEIGH THE MERITS AND DEMERITS IN EACH CASE BY LOOKING TO THE PRIOR
HISTORY OF THE RULE IN QUESTION, ITS PURPOSE AND EFFECT, AND WHETHER
RETROSPECTIVE OPERATION WILL FURTHER OR RETARD ITS OPERATION.  WE
BELIEVE THAT THIS APPROACH IS PARTICULARLY CORRECT WITH REFERENCE TO
THE FOURTH AMENDMENT'S PROHIBITIONS AS TO UNREASONABLE SEARCHES AND
SEIZURES.  RATHER THAN "DISPARAGING" THE AMENDMENT WE BUT APPLY THE
WISDOM OF JUSTICE HOLMES THAT "THE LIFE OF THE LAW HAS NOT BEEN LOGIC:
IT HAS BEEN EXPERIENCE."  HOLMES, THE COMMON LAW 5 (HOWE ED. 1963). 
(FN15)                                            II. 

SINCE WEEKS V. UNITED STATES, 232 U.S. 383 (1914), THIS COURT HAS
ADHERED TO THE RULE THAT EVIDENCE SEIZED BY FEDERAL OFFICERS IN
VIOLATION OF THE FOURTH AMENDMENT IS NOT ADMISSIBLE AT TRIAL IN A
FEDERAL COURT.  IN 1949 IN WOLF V. COLORADO, SUPRA, THE COURT DECIDED
THAT WHILE THE RIGHT TO PRIVACY - "THE CORE OF THE FOURTH AMENDMENT" -
WAS SUCH A BASIC RIGHT AS TO BE IMPLICIT IN "THE CONCEPT OF ORDERED
LIBERTY" AND THUS ENFORCEABLE AGAINST THE STATES THROUGH THE FOURTEENTH
AMENDMENT, "THE WAYS OF ENFORCING SUCH A BASIC RIGHT RAISE QUESTIONS OF
A DIFFERENT ORDER.  HOW SUCH ARBITRARY CONDUCT SHOULD BE CHECKED, WHAT
REMEDIES AGAINST IT SHOULD BE AFFORDED, THE MEANS BY WHICH THE RIGHT
SHOULD BE MADE EFFECTIVE, ARE ALL QUESTIONS THAT ARE NOT TO BE SO
DOGMATICALLY ANSWERED AS TO PRECLUDE THE VARYING SOLUTIONS WHICH SPRING
FROM AN ALLOWABLE RANGE OF JUDGMENT ON ISSUES NOT SUSCEPTIBLE OF
QUANTITATIVE SOLUTION."  AT 27-28. 

THE COURT WENT ON TO SAY THAT THE FEDERAL EXCLUSIONARY RULE WAS NOT
"DERIVED FROM THE EXPLICIT REQUIREMENTS OF THE FOURTH AMENDMENT  ...  .
THE DECISION WAS A MATTER OF JUDICIAL IMPLICATION."  AT 28.  SINCE "WE
FIND THAT IN FACT MOST OF THE ENGLISH-SPEAKING WORLD DOES NOT REGARD AS
VITAL TO SUCH PROTECTION THE EXCLUSION OF EVIDENCE THUS OBTAINED, WE
MUST HESITATE TO TREAT THIS REMEDY AS AN ESSENTIAL INGREDIENT OF THE
RIGHT."  (FN16)  AT 29.  WHILE GRANTING THAT "IN PRACTICE" THE
EXCLUSION OF EVIDENCE MIGHT BE "AN EFFECTIVE WAY OF DETERRING
UNREASONABLE SEARCHES," THE COURT CONCLUDED THAT IT COULD NOT "CONDEMN
AS FALLING BELOW THE MINIMAL STANDARDS ASSURED BY THE DUE PROCESS
CLAUSE A STATE'S RELIANCE UPON OTHER METHODS WHICH, IF CONSISTENTLY
ENFORCED, WOULD BE EQUALLY EFFECTIVE."  AT 31.  THE CONTINUANCE OF THE
FEDERAL EXCLUSIONARY RULE WAS EXCUSED ON THE GROUND THAT THE REASONS
FOR IT WERE MORE "COMPELLING" SINCE PUBLIC OPINION IN THE COMMUNITY
COULD BE EXERTED AGAINST OPPRESSIVE CONDUCT BY LOCAL POLICE FAR MORE
EFFECTIVELY THAN IT COULD THROUGHOUT THE COUNTRY. 

THE "ASYMMETRY WHICH WOLF IMPORTED INTO THE LAW," MAPP V. OHIO,
SUPRA, AT 670 (CONCURRING OPINION OF DOUGLAS, J.), WAS INDICATED BY A
DECISION ANNOUNCED ON THE SAME DAY, LUSTIG V. UNITED STATES, 338 U.S.
74 (1949), HOLDING THAT EVIDENCE GIVEN TO FEDERAL AUTHORITIES "ON A
SILVER PLATTER" BY STATE OFFICERS WAS NOT EXCLUDABLE IN FEDERAL
TRIALS.  AT 79.  WOLF'S HOLDING, IN CONJUNCTION WITH THE "SILVER
PLATTER" DOCTRINE OF LUSTIG, PROVIDED WIDE AVENUES OF ABUSE IN THE
WEEKS' EXCLUSIONARY RULE IN THE FEDERAL COURTS.  EVIDENCE SEIZED IN
VIOLATION OF THE FOURTH AMENDMENT BY STATE OFFICERS WAS TURNED OVER TO
FEDERAL OFFICERS AND ADMITTED IN EVIDENCE IN PROSECUTIONS IN THE
FEDERAL COURTS.  IN 1951 WOLF WAS STRENGTHENED BY STEFANELLI V. MINARD,
342 U.S. 117, IN WHICH THE COURT REFUSED TO PERMIT A FEDERAL COURT TO
ENJOIN THE USE OF EVIDENCE IN A STATE CRIMINAL PROCEEDING THAT HAD BEEN
ILLEGALLY SEIZED BY STATE OFFICERS.  IN 1952, HOWEVER, THE COURT COULD
NOT TOLERATE THE PROCEDURE INVOLVED IN ROCHIN V. CALIFORNIA, 342 U.S.
165, WHERE MORPHINE CAPSULES PUMPED FROM THE ACCUSED'S STOMACH BY STATE
OFFICERS WERE ADMITTED IN EVIDENCE IN A STATE COURT.  IT STRUCK DOWN
THE CONVICTION ON DUE PROCESS GROUNDS UNDER THE FOURTEENTH AMENDMENT
BECAUSE THE ACTION WAS SHOCKING TO THE CONSCIENCE.  IN 1954 CAME IRVINE
V. CALIFORNIA, 347 U.S. 128, IN WHICH THE STATE ADMITTED EVIDENCE
PROCURED VIA A MICROPHONE SECRETED CLANDESTINELY BY STATE POLICE IN THE
ACCUSED'S BEDROOM.  THESE "INCREDIBLE" CIRCUMSTANCES DID NOT
SUFFICIENTLY SHOCK THE CONSCIENCE OF THE COURT INTO APPLYING THE ROCHIN
TEST.  INSTEAD THE CASE WENT OFF ON THE DOCTRINE OF WOLF.  MR. JUSTICE
JACKSON IN ANNOUNCING THE JUDGMENT OF THE COURT OVERRULED THOSE WHO
URGED THAT WOLF "APPLIES ONLY TO SEARCHES AND SEIZURES WHICH PRODUCE ON
OUR MINDS A MILD SHOCK, WHILE IF THE SHOCK IS MORE SERIOUS, THE STATES
MUST EXCLUDE THE EVIDENCE OR WE WILL REVERSE THE CONVICTION."  AT 133
134.  HE STRONGLY REAFFIRMED WOLF STATING: 

"NOW THAT THE WOLF DOCTRINE IS KNOWN TO THEM, STATE COURTS MAY WISH
FURTHER TO RECONSIDER THEIR EVIDENTIARY RULES.  BUT TO UPSET STATE
CONVICTIONS EVEN BEFORE THE STATES HAVE HAD ADEQUATE OPPORTUNITY TO
ADOPT OR REJECT THE RULE WOULD BE AN UNWARRANTED USE OF FEDERAL
POWER."  AT 134. 

THE OPINION IN DEALING WITH THE OPERATION OF THE EXCLUSIONARY RULE
SAID THAT IT "MUST BE REMEMBERED THAT PETITIONER IS NOT INVOKING THE
CONSTITUTION TO PREVENT OR PUNISH A VIOLATION OF HIS FEDERAL RIGHT
RECOGNIZED IN WOLF  ...  .  HE IS INVOKING IT ONLY TO SET ASIDE HIS OWN
CONVICTION OF CRIME  ...  .  REJECTION OF THE EVIDENCE DOES NOTHING TO
PUNISH THE WRONG-DOING OFFICIAL, WHILE IT MAY, AND LIKELY WILL, RELEASE
THE WRONG-DOING DEFENDANT  ...  .  IT DOES NOTHING TO PROTECT INNOCENT
PERSONS WHO ARE THE VICTIMS OF ILLEGAL BUT FRUITLESS SEARCHES."  AT
136.  ADMITTING THE FUTILITY OF OTHER REMEDIES AVAILABLE TO THE VICTIMS
OF ILLEGAL SEARCHES, MR. JUSTICE JACKSON AND THE THEN CHIEF JUSTICE
SUGGESTED THAT THE "CLERK OF THIS COURT SHOULD BE DIRECTED TO FORWARD A
COPY OF THE RECORD IN THIS CASE, TOGETHER WITH A COPY OF THIS OPINION,
FOR ATTENTION OF THE ATTORNEY GENERAL OF THE UNITED STATES" WITH A VIEW
TO PROSECUTION UNDER THE CIVIL RIGHTS ACT, 62 STAT. 696, 18 U.S.C. SEC.
242 (1958 ED.).  IN CONCURRING IN THE JUDGMENT IN IRVINE THE WRITER OF
THIS OPINION INDICATED HIS DISPLEASURE WITH WOLF BUT OBSERVED THAT
SINCE THE COURT "STILL REFUSES TODAY" TO OVERRULE IT HE FELT BOUND BY
WOLF BUT HAD HOPES THAT "STRICT ADHERENCE TO THE TENOR OF THAT DECISION
MAY PRODUCE NEEDED CONVERTS FOR ITS EXTINCTION."  AT 138-139.  THE
COURT CONTINUED TO BROADEN THE RULE OF EXCLUSION WHEN, IN 1956, IT HELD
THAT A FEDERAL AGENT MIGHT BE ENJOINED FROM TRANSFERRING TO STATE
AUTHORITIES EVIDENCE THAT HE HAD SEIZED ON AN ILLEGAL FEDERAL WARRANT,
OR TESTIFYING WITH REGARD TO IT IN A STATE PROSECUTION.  REA V. UNITED
STATES, 350 U.S. 214.  IN 1960 THE COURT'S DISSATISFACTION WITH THE
"SILVER PLATTER" DOCTRINE, LUSTIG V. UNITED STATES, SUPRA, LED TO ITS
REJECTION IN THE LEADING CASE OF ELKINS V. UNITED STATES, 364 U.S.
206.  THE FACTUAL SITUATION BEING THE CONVERSE OF REA V. UNITED STATES,
SUPRA, THE COURT TIGHTENED THE NOOSE OF EXCLUSION IN ORDER TO STRANGLE
COMPLETELY THE USE IN THE FEDERAL COURTS OF EVIDENCE ILLEGALLY SEIZED
BY STATE AGENTS.  IT WAS IN ELKINS THAT THE COURT EMPHASIZED THAT THE
EXCLUSIONARY RULE WAS "CALCULATED TO PREVENT, NOT TO REPAIR.  ITS
PURPOSE IS TO DETER - TO COMPEL RESPECT FOR THE CONSTITUTIONAL GUARANTY
IN THE ONLY EFFECTIVELY AVAILABLE WAY - BY REMOVING THE INCENTIVE TO
DISREGARD IT."  (FN17)  AT 217. 

MAPP WAS ANNOUNCED IN 1961.  THE COURT IN CONSIDERING "THE CURRENT
VALIDITY OF THE FACTUAL GROUNDS UPON WHICH WOLF WAS BASED" POINTED OUT
THAT PRIOR TO WOLF "ALMOST TWO-THIRDS OF THE STATES WERE OPPOSED TO THE
USE OF THE EXCLUSIONARY RULE, NOW, DESPITE THE WOLF CASE, MORE THAN
HALF OF THOSE SINCE PASSING UPON IT  ...  HAVE WHOLLY OR PARTLY ADOPTED
OR ADHERED TO THE WEEKS RULE."  AT 651.  WE THEN CITED CALIFORNIA AS
TYPICAL OF THOSE ADOPTING THE RULE SINCE WOLF.  IT WAS "'COMPELLED TO
REACH THAT CONCLUSION,'" WE SAID, QUOTING CALIFORNIA'S HIGHEST COURT,
"'BECAUSE OTHER REMEDIES HAVE COMPLETELY FAILED TO SECURE COMPLIANCE
WITH THE CONSTITUTIONAL PROVISIONS  ...  .'  PEOPLE V. CAHAN, 44 CAL.
2D 434  ...  ."  WE WENT ON TO FIND THAT "THE EXPERIENCE OF CALIFORNIA
THAT SUCH OTHER REMEDIES HAVE BEEN WORTHLESS AND FUTILE IS BUTTRESSED
BY THE EXPERIENCE OF OTHER STATES.  THE OBVIOUS FUTILITY OF RELEGATING
THE FOURTH AMENDMENT TO THE PROTECTION OF OTHER REMEDIES HAS, MOREOVER,
BEEN RECOGNIZED BY THIS COURT SINCE WOLF.  SEE IRVINE V. CALIFORNIA
...  ."  AT 652-653.  IN DISCUSSING PEOPLE V. DEFORE, 242 N.Y. 13, 150
N.E. 585, UPON WHICH WOLF HEAVILY RELIED, WE CONCLUDED THAT "LIKEWISE,
TIME HAS SET ITS FACE AGAINST WHAT WOLF CALLED THE 'WEIGHTY TESTIMONY'
OF PEOPLE V. DEFORE  ...  'THAT THE FEDERAL RULE AS IT STANDS IS EITHER
TOO STRICT OR TOO LAX.'  242 N.Y., AT 22."  AT 653.  WE CONCLUDED THAT
"THE FORCE OF THAT REASONING HAS BEEN LARGELY VITIATED BY LATER
DECISIONS OF THIS COURT," AT 653, WHICH HAD CLOSED ALL OF THE COURTROOM
DOORS "OPEN TO EVIDENCE SECURED BY OFFICIAL LAWLESSNESS  ...  " SAVE
THAT OF THE STATE COURTS.  AT 655.  THAT DOOR WAS CLOSED BY MAPP. 

IN RECAPITULATION, WE FOUND IN MAPP THAT WOLF RESTED ON THESE
GROUNDS.  FIRST, THAT THE "CONTRARIETY OF VIEWS OF THE STATES" AS TO
THE USE OF THE EXCLUSIONARY RULE WAS "PARTICULARLY IMPRESSIVE." 
SECOND, "'OTHER MEANS OF PROTECTION' OF FOURTH AMENDMENT RIGHTS HAD
BEEN AFFORDED" THAN THE EXCLUSIONARY RULE.  AND, THIRD, THE "WEIGHTY
TESTIMONY" OF PEOPLE V. DEFORE, SUPRA.  AS TO THE FIRST, WE FOUND THE
LINEUP OF THE STATES AS TO THE EXCLUSIONARY RULE HAD SHIFTED TO WHERE A
MAJORITY FAVORED IT; AS TO THE SECOND, THAT THE OTHER MEANS OF
PROTECTION HAD PROVEN TO BE "WORTHLESS AND FUTILE" AND HAD NOT REDUCED
THE INCIDENCE OF POLICE LAWLESSNESS DURING THE 12 YEARS SINCE WOLF WAS
ANNOUNCED BUT THAT WOLF HAD OPERATED AS A LICENSE FOR POLICE
ILLEGALITY; AND, AS TO THE THIRD, THAT OUR CASES SUBSEQUENT TO MAPP HAD
COMPLETELY CLOSED THE LAXITY IN THE FEDERAL EXCLUSIONARY RULE
COMPLAINED OF IN PEOPLE V. DEFORE, SUPRA.  WE ALSO AFFIRMATIVELY FOUND
THAT THE EXCLUSIONARY RULE WAS "AN ESSENTIAL PART OF BOTH THE FOURTH
AND FOURTEENTH AMENDMENTS" AND THE ONLY EFFECTIVE REMEDY FOR THE
PROTECTION OF RIGHTS UNDER THE FOURTH AMENDMENT; THAT IT WOULD STOP THE
NEEDLESS "SHOPPING AROUND" THAT WAS CAUSING CONFLICT BETWEEN FEDERAL
AND STATE COURTS, AS WAS PERMITTED IN WILSON V. SCHNETTLER, 365 U.S.
381 (1961); THAT IT WOULD WITHDRAW THE INVITATION WHICH WOLF EXTENDED
TO FEDERAL OFFICERS TO STEP ACROSS THE STREET TO THE STATE'S ATTORNEY
WITH THEIR ILLEGAL EVIDENCE, THUS ELIMINATING A PRACTICE WHICH TENDED
TO DESTROY THE ENTIRE SYSTEM OF CONSTITUTIONAL RESTRAINTS ON WHICH THE
LIBERTIES OF THE PEOPLE REST; THAT IT WOULD PROMOTE STATE-FEDERAL
COOPERATION IN LAW ENFORCEMENT BY REJECTING THE DOUBLE STANDARD OF
ADMISSIBILITY OF ILLEGAL EVIDENCE WHICH TENDS TO BREED SUSPICION AMONG
THE OFFICERS, ENCOURAGES DISOBEDIENCE TO THE CONSTITUTION ON THE PART
OF ALL THE PARTICIPANTS AND VIOLATES "THE IMPERATIVE OF JUDICIAL
INTEGRITY."  MAPP V. OHIO, SUPRA, AT 657-660.  IN SHORT, JUST AS OTHER
CASES HAD FOUND THE EXCLUSIONARY RULE TO BE A DETERRENT SAFEGUARD
NECESSARY TO THE ENFORCEMENT OF THE AMENDMENT, SILVERTHORNE LUMBER CO.
V. UNITED STATES, 251 U.S. 385 (1920), MAPP BOTTOMED ITS RULE ON ITS
NECESSITY AS A "SANCTION UPON WHICH THE FOURTH AMENDMENT'S PROTECTION
AND ENJOYMENT HAD ALWAYS BEEN DEEMED DEPENDENT UNDER THE BOYD, WEEKS
AND SILVERTHORNE CASES."  AT 655.  MAPP'S RATIONALE WAS THAT SINCE WOLF
WE HAD ON AN AD HOC BASIS BEEN LED TO EXCLUDE ALL EVIDENCE IN BOTH
STATE AND FEDERAL COURTS WHERE A FEDERAL AGENT HAD PARTICIPATED IN THE
ILLEGAL SEARCH.  ONLY A FEW STATES HAD MADE ANY CHANGES IN THEIR RULE
OF ADMISSIBILITY SINCE WOLF AND MANY OF THOSE NOT FOLLOWING THE FEDERAL
EXCLUSIONARY RULE WERE, IN EFFECT, USING WOLF AS A LICENSE TO VIOLATE
THE FOURTH AMENDMENT'S PROSCRIPTION OF UNREASONABLE SEARCHES AND
SEIZURES AS APPLIED TO THE STATES BY THE WOLF CASE ITSELF.  AS WE NOTED
IN MAPP "FURTHER DELAY IN APPLYING THE EXCLUSIONARY RULE TO THE STATES
COULD HAVE NO EFFECT OTHER THAN TO COMPOUND THE DIFFICULTIES"; A
DEFINITIVE CONTINUANCE OF WOLF MIGHT HAVE INCREASED THE NUMBER OF CASES
INVOLVING ILLEGAL SEARCHES IN NONEXCLUSIONARY STATES AND ALSO ENTICED
THOSE IN THE EXCLUSIONARY COLUMN TO REVERSE THEIR POSITION, AS SOME
STATES HAD DONE PRIOR TO MAPP. 

    III. 

WE BELIEVE THAT THE EXISTENCE OF THE WOLF DOCTRINE PRIOR TO MAPP IS
"AN OPERATIVE FACT AND MAY HAVE CONSEQUENCES WHICH CANNOT JUSTLY BE
IGNORED.  THE PAST CANNOT ALWAYS BE ERASED BY A NEW JUDICIAL
DECLARATION."  CHICOT COUNTY DRAINAGE DIST. V. BAXTER STATE BANK,
SUPRA, AT 374.  THE THOUSANDS OF CASES THAT WERE FINALLY DECIDED ON
WOLF CANNOT BE OBLITERATED.  THE "PARTICULAR CONDUCT, PRIVATE AND
OFFICIAL," MUST BE CONSIDERED.  HERE "PRIOR DETERMINATIONS DEEMED TO
HAVE FINALITY AND ACTED UPON ACCORDINGLY" HAVE "BECOME VESTED."  AND
FINALLY, "PUBLIC POLICY IN THE LIGHT OF THE NATURE BOTH OF THE  ...
WOLF DOCTRINE AND OF ITS PREVIOUS APPLICATION" MUST BE GIVEN ITS PROPER
WEIGHT.  IBID.  IN SHORT, WE MUST LOOK TO THE PURPOSE OF THE MAPP RULE;
THE RELIANCE PLACED UPON THE WOLF DOCTRINE; AND THE EFFECT ON THE
ADMINISTRATION OF JUSTICE OF A RETROSPECTIVE APPLICATION OF MAPP. 

IT IS CLEAR THAT THE WOLF COURT, ONCE IT HAD FOUND THE FOURTH
AMENDMENT'S UNREASONABLE SEARCH AND SEIZURE CLAUSE APPLICABLE TO THE
STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
TURNED ITS ATTENTION TO WHETHER THE EXCLUSIONARY RULE WAS INCLUDED
WITHIN THE COMMAND OF THE FOURTH AMENDMENT.  THIS WAS DECIDED IN THE
NEGATIVE.  IT IS CLEAR THAT BASED UPON THE FACTUAL CONSIDERATIONS
HERETOFORE DISCUSSED THE WOLF COURT THEN CONCLUDED THAT IT WAS NOT
NECESSARY TO THE ENFORCEMENT OF THE FOURTH AMENDMENT FOR THE
EXCLUSIONARY RULE TO BE EXTENDED TO THE STATES AS A REQUIREMENT OF DUE
PROCESS.  MAPP HAD AS ITS PRIME PURPOSE THE ENFORCEMENT OF THE FOURTH
AMENDMENT THROUGH THE INCLUSION OF THE EXCLUSIONARY RULE WITHIN ITS
RIGHTS.  THIS, IT WAS FOUND, WAS THE ONLY EFFECTIVE DETERRENT TO
LAWLESS POLICE ACTION.  INDEED, ALL OF THE CASES SINCE WOLF REQUIRING
THE EXCLUSION OF ILLEGAL EVIDENCE HAVE BEEN BASED ON THE NECESSITY FOR
AN EFFECTIVE DETERRENT TO ILLEGAL POLICE ACTION.  SEE, E.G., REA V.
UNITED STATES, SUPRA.  WE CANNOT SAY THAT THIS PURPOSE WOULD BE
ADVANCED BY MAKING THE RULE RETROSPECTIVE.  THE MISCONDUCT OF THE
POLICE PRIOR TO MAPP HAS ALREADY OCCURRED AND WILL NOT BE CORRECTED BY
RELEASING THE PRISONERS INVOLVED.  NOR WOULD IT ADD HARMONY TO THE
DELICATE STATE-FEDERAL RELATIONSHIP OF WHICH WE HAVE SPOKEN AS PART AND
PARCEL OF THE PURPOSE OF MAPP.  FINALLY, THE RUPTURED PRIVACY OF THE
VICTIMS' HOMES AND EFFECTS CANNOT BE RESTORED.  REPARATION COMES TOO
LATE.    IT IS TRUE THAT BOTH THE ACCUSED AND THE STATES RELIED UPON
WOLF.  INDEED, WOLF AND IRVINE EACH POINTED THE WAY FOR THE VICTIMS OF
ILLEGAL SEARCHES TO SEEK REPARATION FOR THE VIOLATION OF THEIR
PRIVACY.  SOME PURSUED THE SAME.  SEE MONROE V. PAPE, 365 U.S. 167
(1961).  IN ADDITION, IN IRVINE, A FLAG IN A CONCURRING OPINION WARNED
THAT WOLF WAS IN STORMY WEATHER.  ON THE OTHER HAND, THE STATES RELIED
ON WOLF AND FOLLOWED ITS COMMAND.  FINAL JUDGMENTS OF CONVICTION WERE
ENTERED PRIOR TO MAPP.  AGAIN AND AGAIN THIS COURT REFUSED TO
RECONSIDER WOLF AND GAVE ITS IMPLICIT APPROVAL TO HUNDREDS OF CASES IN
THEIR APPLICATION OF ITS RULE.  IN REJECTING THE WOLF DOCTRINE AS TO
THE EXCLUSIONARY RULE THE PURPOSE WAS TO DETER THE LAWLESS ACTION OF
THE POLICE AND TO EFFECTIVELY ENFORCE THE FOURTH AMENDMENT.  THAT
PURPOSE WILL NOT AT THIS LATE DATE BE SERVED BY THE WHOLESALE RELEASE
OF THE GUILTY VICTIMS. 

FINALLY, THERE ARE INTERESTS IN THE ADMINISTRATION OF JUSTICE AND THE
INTEGRITY OF THE JUDICIAL PROCESS TO CONSIDER.  TO MAKE THE RULE OF
MAPP RETROSPECTIVE WOULD TAX THE ADMINISTRATION OF JUSTICE TO THE
UTMOST.  HEARINGS WOULD HAVE TO BE HELD ON THE EXCLUDABILITY OF
EVIDENCE LONG SINCE DESTROYED, MISPLACED OR DETERIORATED.  IF IT IS
EXCLUDED, THE WITNESSES AVAILABLE AT THE TIME OF THE ORIGINAL TRIAL
WILL NOT BE AVAILABLE OR IF LOCATED THEIR MEMORY WILL BE DIMMED.  TO
THUS LEGITIMATE SUCH AN EXTRAORDINARY PROCEDURAL WEAPON THAT HAS NO
BEARING ON GUILT WOULD SERIOUSLY DISRUPT THE ADMINISTRATION OF
JUSTICE. 

IT IS URGED, HOWEVER, THAT THESE SAME CONSIDERATIONS APPLY IN THE
CASES THAT WE HAVE APPLIED RETROSPECTIVELY IN OTHER AREAS, (FN18)
NOTABLY THAT OF COERCED CONFESSIONS, AND THAT THE MAPP EXCLUSIONARY
RULE SHOULD, THEREFORE, BE GIVEN THE SAME DIGNITY AND EFFECT.  TWO
CASES ARE CITED, FAY V. NOIA, 372 U.S. 391 (1963), AND RECK V. PATE,
367 U.S. 433 (1961), BUT NEITHER IS APPOSITE.  IT IS SAID THAT WE
ORDERED NEW TRIALS 25 YEARS AFTER CONVICTION IN THE LATTER AND AFTER
THE LAPSE OF 21 YEARS IN THE FORMER.  THIS TIME TABLE IS TRUE BUT THAT
IS ALL.  THE PRINCIPLE THAT A COERCED CONFESSION IS NOT ADMISSIBLE IN A
TRIAL PREDATED THE ARRESTS AS WELL AS THE ORIGINAL CONVICTIONS IN EACH
OF THESE CASES.  SEE BROWN V. MISSISSIPPI, 297 U.S. 278 (1936).  THERE
WAS NO QUESTION OF RETROSPECTIVE OPERATION INVOLVED IN EITHER CASE. 
MOREOVER, COERCED CONFESSIONS ARE EXCLUDED FROM EVIDENCE BECAUSE OF "A
COMPLEX OF VALUES," BLACKBURN V. ALABAMA, 361 U.S. 199 (1960),
INCLUDING "THE LIKELIHOOD THAT THE CONFESSION IS UNTRUE"; "THE
PRESERVATION OF THE INDIVIDUAL'S FREEDOM OF WILL"; AND "'THE ABHORRENCE
OF SOCIETY TO THE USE OF INVOLUNTARY CONFESSIONS.'"  AT 207.  CITED
WITH APPROVAL IN JACKSON V. DENNO, 378 U.S. 368, 385-386 (1964).  BUT
THERE IS NO LIKELIHOOD OF UNRELIABILITY OR COERCION PRESENT IN A SEARCH
AND-SEIZURE CASE.  RATHER THAN BEING ABHORRENT AT THE TIME OF SEIZURE
IN THIS CASE, THE USE IN STATE TRIALS OF ILLEGALLY SEIZED EVIDENCE HAD
BEEN SPECIFICALLY AUTHORIZED BY THIS COURT IN WOLF.  (FN19)
FURTHERMORE, IN NOIA, THE CONFESSION WAS ADMITTEDLY COERCED AND THE
SOLE ISSUE INVOLVED THE AVAILABILITY OF FEDERAL HABEAS CORPUS IN A
STATE CONVICTION, WHERE STATE POST-CONVICTION REMEDIES HAD BEEN
EXHAUSTED BUT THE ACCUSED HAD FAILED TO APPEAL FROM HIS ORIGINAL
CONVICTION.  NOTHING OF THAT KIND IS INVOLVED HERE AND THIS HOLDING HAS
NO BEARING WHATEVER ON NOIA OR RECK, FOR THAT MATTER.  FINALLY, IN EACH
OF THE THREE AREAS IN WHICH WE HAVE APPLIED OUR RULE RETROSPECTIVELY
(FN20) THE PRINCIPLE THAT WE APPLIED WENT TO THE FAIRNESS OF THE TRIAL
THE VERY INTEGRITY OF THE FACT-FINDING PROCESS.  HERE, AS WE HAVE
POINTED OUT, THE FAIRNESS OF THE TRIAL IS NOT UNDER ATTACK.  ALL THAT
PETITIONER ATTACKS IS THE ADMISSIBILITY OF EVIDENCE, THE RELIABILITY
AND RELEVANCY OF WHICH IS NOT QUESTIONED, AND WHICH MAY WELL HAVE HAD
NO EFFECT ON THE OUTCOME. 

NOR CAN WE ACCEPT THE CONTENTION OF PETITIONER THAT THE MAPP RULE
SHOULD DATE FROM THE DAY OF THE SEIZURE THERE, RATHER THAN THAT OF THE
JUDGMENT OF THIS COURT.  THE DATE OF THE SEIZURE IN MAPP HAS NO LEGAL
SIGNIFICANCE.  IT WAS THE JUDGMENT OF THIS COURT THAT CHANGED THE RULE
AND THE DATE OF THAT OPINION IS THE CRUCIAL DATE.  IN THE LIGHT OF THE
CASES OF THIS COURT THIS IS THE BETTER CUTOFF TIME.  SEE UNITED STATES
V. SCHOONER PEGGY, SUPRA. 

ALL THAT WE DECIDE TODAY IS THAT THOUGH THE ERROR COMPLAINED OF MIGHT
BE FUNDAMENTAL IT IS NOT OF THE NATURE REQUIRING US TO OVERTURN ALL
FINAL CONVICTIONS BASED UPON IT.  AFTER FULL CONSIDERATION OF ALL THE
FACTORS WE ARE NOT ABLE TO SAY THAT THE MAPP RULE REQUIRES
RETROSPECTIVE APPLICATION.  AFFIRMED. 

FN1  ALTHOUGH MAPP MAY NOT BE CONSIDERED TO BE AN OVERRULING DECISION
IN THE SENSE THAT IT DID NOT DISTURB THE EARLIER HOLDING OF WOLF THAT
THE SEARCH AND SEIZURE PROVISIONS OF THE FOURTH AMENDMENT ARE
APPLICABLE TO THE STATES, ITS EFFECT CERTAINLY WAS TO CHANGE EXISTING
LAW WITH REGARD TO ENFORCEMENT OF THE RIGHT. 

FN2  A SPLIT OF AUTHORITY HAS DEVELOPED IN THE VARIOUS COURTS OF
APPEALS CONCERNING THE RETROSPECTIVITY OF MAPP.  COMPARE HALL V.
WARDEN, 313 F.2D 483 (C.A. 4TH CIR. 1963)(RETROACTIVE); WALKER V.
PEPPERSACK, 316 F.2D 119 (C.A. 4TH CIR. 1963)(RETROACTIVE); CALIFORNIA
V. HURST, 325 F.2D 891 (C.A. 9TH CIR. 1963)(RETROACTIVE), WITH GAITAN
V. UNITED STATES, 317 F.2D 494 (C.A. 10TH CIR. 1963)(PROSPECTIVE);
LINKLETTER V. WALKER, 323 F.2D 11 (C.A. 5TH CIR. 1963)(PROSPECTIVE);
SISK V. LANE 331 F.2D 235 (C.A. 7TH CIR. 1964)(PROSPECTIVE); UNITED
STATES EX REL. ANGELET V. FAY.  333 F.2D 12 (C.A.2D CIR.
1964)(PROSPECTIVE). 

ABOUT THE ONLY POINT UPON WHICH THERE WAS AGREEMENT IN THE CASES
CITED WAS THAT OUR OPINION IN MAPP DID NOT FORECLOSE THE QUESTION. 

THE STATE COURTS WHICH HAVE CONSIDERED THE QUESTION HAVE ALMOST
UNANIMOUSLY DECIDED AGAINST APPLICATION TO CASES FINALIZED PRIOR TO
MAPP.  SEE, E.G., BELTOWSKI V. TAHASH, 266 MINN. 182, 123 N.W.2D 207,
CERT. DENIED, 375 U.S. 947 (1963); MOORE V. STATE, 274 ALA. 276, 147
SO. 2D 835 (1962), CERT. DENIED, 374 U.S. 811 (1963); PEOPLE V. MULLER,
11 N.Y.2D 154, 182 N.E.2D 99, CERT. DENIED, 371 U.S. 850 (1962). 

COMMENTATORS HAVE ALSO SPLIT OVER THE QUESTION OF ABSOLUTE
RETROACTIVITY.  SEE BENDER, THE RETROACTIVE EFFECT OF AN OVERRULING
CONSTITUTIONAL DECISION:  MAPP V. OHIO, 110 U. PA. L. REV. 650 (1962);
FREUND, NEW VISTAS IN CONSTITUTIONAL LAW, 112 U. PA. L. REV.  631
(1964); TRAYNOR, MAPP V. OHIO AT LARGE IN THE FIFTY STATES, 1962 DUKE
L.J. 319; WEINSTEIN, LOCAL RESPONSIBILITY FOR IMPROVEMENT OF SEARCH AND
SEIZURE PRACTICES, 34 ROCKY MT. L. REV. 150 (1962); NOTE, COLLATERAL
ATTACK OF PRE-MAPP V. OHIO CONVICTIONS BASED ON ILLEGALLY OBTAINED
EVIDENCE IN STATE COURTS, 16 RUTGERS L. REV. 587 (1962); NOTE,
PROSPECTIVE OVERRULING AND RETROACTIVE APPLICATION IN THE FEDERAL
COURTS, 71 YALE L.J. 907 (1962).  CONTRA, CURRIER, TIME AND CHANGE IN
JUDGE-MADE LAW:  PROSPECTIVE OVERRULING, 51 VA. L. REV. 201 (1965);
MEADOR, HABEAS CORPUS AND THE "RETROACTIVITY" ILLUSION, 50 VA. L. REV.
1115 (1964); TORCIA & KING, THE MIRAGE OF RETROACTIVITY AND CHANGING
CONSTITUTIONAL CONCEPTS, 66 DICK.  L. REV. 269 (1962). 

FN3  IT HAS BEEN SUGGESTED THAT THIS COURT IS PREVENTED BY ARTICLE
III FROM ADOPTING THE TECHNIQUE OF PURELY PROSPECTIVE OVERRULING. 
NOTE, 71 YALE L.J. 907, 933 (1962).  BUT SEE 1A MOORE, FEDERAL PRACTICE
4082-4084 (2D ED. 1961); CURRIER, SUPRA, N. 2, AT 216-220.  HOWEVER, NO
DOUBT WAS EXPRESSED OF OUR POWER UNDER ARTICLE III IN ENGLAND V.
LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411 (1964).  SEE
ALSO GRIFFIN V. ILLINOIS, 351 U.S. 12, 20 (1956)(CONCURRING OPINION OF
FRANKFURTER, J.). 

FN4  KER V. CALIFORNIA, 374 U.S. 23 (1963); FAHY V. CONNECTICUT, 375
U.S. 85 (1963); STONER V. CALIFORNIA, 376 U.S. 483 (1964). 

FN5  BY FINAL WE MEAN WHERE THE JUDGMENT OF CONVICTION WAS RENDERED,
THE AVAILABILITY OF APPEAL EXHAUSTED, AND THE TIME FOR PETITION FOR
CERTIORARI HAD ELAPSED BEFORE OUR DECISION IN MAPP V. OHIO. 

FN6  "I KNOW OF NO AUTHORITY IN THIS COURT TO SAY THAT IN GENERAL
STATE DECISIONS SHALL MAKE LAW ONLY FOR THE FUTURE.  JUDICIAL DECISIONS
HAVE HAD RETROSPECTIVE OPERATION FOR NEAR A THOUSAND YEARS."  KUHN V.
FAIRMONT COAL CO., 215 U.S. 349, 372 (1910)(DISSENTING OPINION OF
HOLMES, J.). 

FN7  WHILE BLACKSTONE IS ALWAYS CITED AS THE FOREMOST EXPONENT OF THE
DECLARATORY THEORY, A VERY SIMILAR VIEW WAS STATED BY SIR MATTHEW HALE
IN HIS HISTORY OF THE COMMON LAW WHICH WAS PUBLISHED 13 YEARS BEFORE
THE BIRTH OF BLACKSTONE.  GRAY, NATURE AND SOURCES OF THE LAW 206 (1ST
ED. 1909). 

FN8  IT IS INTERESTING TO NOTE, HOWEVER, THAT AS EARLY AS 1801, CHIEF
JUSTICE MARSHALL IN UNITED STATES V. SCHOONER PEGGY, 1 CRANCH 103, HAD
MADE CLEAR THAT: 

"IF SUBSEQUENT TO THE JUDGMENT IN THE TRIAL COURT AND BEFORE THE
DECISION OF THE APPELLATE COURT, A LAW INTERVENES AND POSITIVELY
CHANGES THE RULE WHICH GOVERNS  ...  THE COURT MUST DECIDE ACCORDING TO
EXISTING LAWS, AND IF IT BE NECESSARY TO SET ASIDE A JUDGMENT  ...
WHICH CANNOT BE AFFIRMED BUT IN VIOLATION OF LAW, THE JUDGMENT MUST BE
SET ASIDE."  AT 110. 

PETITIONER MAINTAINS THAT THIS CASE ESTABLISHES A RULE OF ABSOLUTE
RETROACTIVITY AND THAT THE PRINCIPLE IS THE SAME WITH REGARD TO
CONSTITUTIONAL RIGHTS.  RESPONDENT, ON THE OTHER HAND, MAINTAINS THAT
THE CASE STANDS FOR THE PROPOSITION FOR WHICH HE CONTENDS, I.E., THAT A
CHANGE IN THE LAW WILL BE GIVEN EFFECT WHILE A CASE IS ON DIRECT
REVIEW, BUT CANNOT BE NECESSARILY INVOKED ON COLLATERAL ATTACK. 

FN9  "BECAUSE THIS WAS A CRIMINAL PROSECUTION, IT BUILDS NOT ONLY
UPON THE CASES WHICH FOLLOWED SCHOONER PEGGY BUT ALSO UPON THE
PRINCIPLE, ESTABLISHED AT COMMON LAW, THAT REPEAL OF A PENAL STATUTE
PROHIBITS PROSECUTION OF ACTS COMMITTED BEFORE THE REPEAL IF THOSE ACTS
HAD NOT YET BEEN PROSECUTED TO FINAL JUDGMENT.  THE REPEAL IS REGARDED
AS AN INDICATION THAT THE STATE NO LONGER WANTS SUCH ACTS PUNISHED,
REGARDLESS OF WHEN THEY TOOK PLACE, AND NO LONGER VIEWS THEM AS
CRIMINAL."   NOTE, 71 YALE L.J. 907, 914 (1962). 

FN10  THIS WAS A DIVERSITY CASE IN WHICH THIS COURT HELD THAT THE
DOCTRINE OF SCHOONER PEGGY, IN EFFECT, WAS INCORPORATED IN ERIE R. CO.
V. TOMPKINS, 304 U.S. 64.  "A FEDERAL COURT SITTING IN A DIVERSITY CASE
MUST THEREFORE APPLY THE MOST RECENT STATE COURT DECISION, EVEN IF IT
CAME AFTER THE OPERATIVE EVENTS OR THE ENTRY OF JUDGMENT BY A LOWER
COURT."  NOTE, 71 YALE L.J. 907, 915 (1962).  SEE, E.G., BLAAUW V.
GRAND TRUNK WESTERN R. CO., 380 U.S. 127 (1965). 

FN11  ACCORD, CARPENTER V. WABASH R. CO., 309 U.S. 23
(1940)(INTERVENING STATUTORY CHANGE); VANDENBARK V. OWENS-ILLINOIS
GLASS CO., 311 U.S. 538 AND CASES CITED AT 541-542 (1941); DINSMORE V.
SOUTHERN EXPRESS CO., 183 U.S. 115, 120 (1901)(INTERVENING STATUTORY
CHANGE); CROZIER V. KRUPP, 224 U.S. 290, 308 (1912)(INTERVENING
STATUTORY CHANGE). 

FN12  THERE WAS NO MENTION OF PROSPECTIVE OVERRULING IN THE OPINION,
HOWEVER THREE JUSTICES VOTED TO OVERRULE WILCOX BUT REVERSED JAMES'
CONVICTION BECAUSE "THE ELEMENT OF WILLFULNESS COULD NOT BE PROVEN IN A
CRIMINAL PROSECUTION FOR FAILING TO INCLUDE EMBEZZLED FUNDS IN GROSS
INCOME IN THE YEAR OF MISAPPROPRIATION SO LONG AS THE STATUTE CONTAINED
THE GLOSS PLACED UPON IT BY WILCOX AT THE TIME THE ALLEGED CRIME WAS
COMMITTED."  366 U.S. 213, 221-222.  MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS CONCURRED IN THE REVERSAL OF THE CONVICTION ON THE BASIS THAT
WILCOX WAS RIGHT AND THEREFORE FAILURE TO INCLUDE EMBEZZLED FUNDS IN
TAXABLE INCOME WAS NOT A CRIME.  HOWEVER, MR. JUSTICE BLACK STRONGLY
DISAGREED WITH THE PROSPECTIVE MANNER IN WHICH THE OVERRULING WAS
DONE. 

"ONE OF THE GREAT INHERENT RESTRAINTS UPON THIS COURT'S DEPARTURE
FROM THE FIELD OF INTERPRETATION TO ENTER THAT OF LAWMAKING HAS BEEN
THE FACT THAT ITS JUDGMENTS COULD NOT BE LIMITED TO PROSPECTIVE
APPLICATION.  THIS COURT AND IN FACT ALL DEPARTMENTS OF THE GOVERNMENT
HAVE ALWAYS HERETOFORE REALIZED THAT PROSPECTIVE LAWMAKING IS THE
FUNCTION OF CONGRESS RATHER THAN OF THE COURTS.  WE CONTINUE TO THINK
THAT THIS FUNCTION SHOULD BE EXERCISED ONLY BY CONGRESS UNDER OUR
CONSTITUTIONAL SYSTEM."  366 U.S., AT 225. 

COMPARE THE DISSENTING OPINION OF MR. JUSTICE BLACK IN MOSSER V.
DARROW, 341 U.S. 267, 275 (1951), WHERE HE STATED THAT A NEW RULE OF
TRUSTEE LIABILITY SHOULD NOT BE APPLIED RETROACTIVELY.  FOR DISCUSSION
OF THESE CASES SEE CURRIER, SUPRA, N. 2; NOTE, 71 YALE L.J. 907. 

FN13  ESKRIDGE V. WASHINGTON PRISON BOARD, 357 U.S. 214 (1958),
APPLIED THE RULE OF GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956), REQUIRING
THE STATE TO FURNISH TRANSCRIPTS OF THE TRIAL TO INDIGENTS ON APPEAL,
TO A 1935 CONVICTION.  THE RULE IN GIDEON V. WAINWRIGHT, 372 U.S. 335
(1963), THAT COUNSEL MUST BE APPOINTED TO REPRESENT AN INDIGENT CHARGED
WITH A FELONY, WAS ACTUALLY APPLIED RETROSPECTIVELY IN THAT CASE SINCE
GIDEON HAD COLLATERALLY ATTACKED THE PRIOR JUDGMENT BY POST-CONVICTION
REMEDIES.  SEE ALSO DOUGHTY V. MAXWELL, 376 U.S. 202 (1964).  JACKSON
V. DENNO, 378 U.S. 368 (1964), INVOLVING A COERCED CONFESSION, WAS ALSO
APPLIED TO THE PETITIONER WHO WAS HERE ON A COLLATERAL ATTACK.  SEE
ALSO MCNERLIN V. DENNO, 378 U.S. 575 (1964).  IT IS ALSO CONTENDED THAT
RECK V. PATE, 367 U.S. 433 (1961), SUPPORTS THE CONCLUSION OF ABSOLUTE
RETROACTIVITY IN THE CONSTITUTIONAL AREA SINCE THE PETITIONER CONVICTED
IN 1937 WAS RELEASED AFTER A FINDING THAT THE CONFESSION WAS COERCED
WHEN JUDGED BY STANDARDS SET FORTH IN OUR CASES DECIDED SUBSEQUENT TO
HIS CONVICTION.  SEE UNITED STATES EX REL. ANGELET V. FAY, 333 F.2D 12,
24 (DISSENTING OPINION OF MARSHALL, J.). 

FN14  GREAT NORTHERN R. CO. V. SUNBURST OIL & REFINING CO., 287 U.S.
358, 364 (1932)(REFERRING TO STATE COURT'S PROSPECTIVE OVERRULING OF
PRIOR DECISION).    FN15  SEE MAPP V. OHIO, 367 U.S. 643, 661-662
(1961)(CONCURRING OPINION OF BLACK, J.). 

FN16  THERE THE COURT DETAILED THE LINEUP OF THE STATES ON THE
EXCLUSIONARY RULE BEFORE AND AFTER WEEKS POINTING OUT THAT AT THE TIME
OF THE DECISION 31 STATES REJECTED THE RULE AND 16 STATES WERE IN
AGREEMENT WITH IT. 

FN17  IN AN APPENDIX TO THE OPINION, THE LINEUP OF STATES REGARDING
THE EXCLUSION OF ILLEGALLY SEIZED EVIDENCE WAS CATALOGUED, INDICATING
THAT THERE WAS SOME CHANGE SINCE WOLF - 26 STATES EXCLUDED SUCH
EVIDENCE WHILE 24 DID NOT.  AT 224-225. 

FN18  SEE CASES CITED IN N. 13, SUPRA.    FN19  INDEED, MR. JUSTICE
BLACK IN CONCURRING SAID "THAT THE FEDERAL EXCLUSIONARY RULE IS NOT A
COMMAND OF THE FOURTH AMENDMENT BUT IS A JUDICIALLY CREATED RULE OF
EVIDENCE WHICH CONGRESS MIGHT NEGATE."  338 U.S. 25, AT 39-40. 

FN20  IN GRIFFIN V. ILLINOIS, SUPRA, THE APPEAL WHICH WAS DENIED
BECAUSE OF LACK OF FUNDS WAS "AN INTEGRAL PART OF THE STATE'S TRIAL
SYSTEM FOR FINALLY ADJUDICATING THE GUILT OR INNOCENCE OF A
DEFENDANT."  AT 18.  PRECLUDING AN APPEAL BECAUSE OF INABILITY TO PAY
WAS ANALOGIZED TO DENYING THE POOR A FAIR TRIAL.  IN GIDEON V.
WAINWRIGHT, SUPRA, WE RECOGNIZED A FUNDAMENTAL FACT THAT A LAYMAN, NO
MATTER HOW INTELLIGENT, COULD NOT POSSIBLY FURTHER HIS CLAIMS OF
INNOCENCE AND VIOLATION OF PREVIOUSLY DECLARED RIGHTS ADEQUATELY. 
BECAUSE OF THIS THE JUDGMENT LACKED RELIABILITY.  IN JACKSON V. DENNO,
SUPRA, THE HOLDING WENT TO THE BASIS OF FAIR HEARING AND TRIAL BECAUSE
THE PROCEDURAL APPARATUS NEVER ASSURED THE DEFENDANT A FAIR
DETERMINATION OF VOLUNTARINESS.  IN ADDITION, MR. JUSTICE WHITE
EXPRESSED GRAVE DOUBTS REGARDING THE ABILITY OF THE JURY TO DISREGARD A
CONFESSION FOUND TO BE INVOLUNTARY IF THE QUESTION OF GUILT WAS
UNCERTAIN. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE COURT OF APPEALS HELD, AND THIS COURT NOW CONCEDES, THAT THE
PETITIONER LINKLETTER IS PRESENTLY IN PRISON SERVING A NINE-YEAR
SENTENCE AT HARD LABOR FOR BURGLARY UNDER A 1959 LOUISIANA STATE COURT
CONVICTION OBTAINED BY USE OF EVIDENCE UNREASONABLY SEIZED IN VIOLATION
OF THE FOURTH AND FOURTEENTH AMENDMENTS.  ON JUNE 19, 1961, WE DECIDED
MAPP V. OHIO, 367 U.S. 643, IN WHICH THE COURT SPECIFICALLY HELD THAT
"ALL EVIDENCE OBTAINED BY SEARCHES AND SEIZURES IN VIOLATION OF THE
CONSTITUTION IS, BY THAT SAME AUTHORITY, INADMISSIBLE IN A STATE
COURT."  367 U.S. AT 655.  STATING THAT THIS COURT HAD PREVIOUSLY HELD
IN WOLF V. COLORADO, 338 U.S. 25, THAT THE FOURTH AMENDMENT WAS
APPLICABLE TO THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, THIS COURT IN MAPP WENT ON TO ADD: 

"IN SHORT, THE ADMISSION OF THE NEW CONSTITUTIONAL RIGHT BY WOLF
COULD NOT CONSISTENTLY TOLERATE DENIAL OF ITS MOST IMPORTANT
CONSTITUTIONAL PRIVILEGE, NAMELY, THE EXCLUSION OF THE EVIDENCE WHICH
AN ACCUSED HAD BEEN FORCED TO GIVE BY REASON OF THE UNLAWFUL SEIZURE. 
TO HOLD OTHERWISE IS TO GRANT THE RIGHT BUT IN REALITY TO WITHHOLD ITS
PRIVILEGE AND ENJOYMENT."  367 U.S., AT 656. 

DESPITE THE COURT'S RESOUNDING PROMISES THROUGHOUT THE MAPP OPINION
THAT CONVICTIONS BASED ON SUCH "UNCONSTITUTIONAL EVIDENCE" WOULD "'FIND
NO SANCTION IN THE JUDGMENTS OF THE COURTS,'" LINKLETTER, CONVICTED IN
THE STATE COURT BY USE OF "UNCONSTITUTIONAL EVIDENCE," IS TODAY DENIED
RELIEF BY THE JUDGMENT OF THIS COURT BECAUSE HIS CONVICTION BECAME
"FINAL" BEFORE MAPP WAS DECIDED.  LINKLETTER MUST STAY IN JAIL; MISS
MAPP, WHOSE OFFENSE WAS COMMITTED BEFORE LINKLETTER'S, IS FREE.  THIS
DIFFERENT TREATMENT OF MISS MAPP AND LINKLETTER POINTS UP AT ONCE THE
ARBITRARY AND DISCRIMINATORY NATURE OF THE JUDICIAL CONTRIVANCE
UTILIZED HERE TO BREAK THE PROMISE OF MAPP BY KEEPING ALL PEOPLE IN
JAIL WHO ARE UNFORTUNATE ENOUGH TO HAVE HAD THEIR UNCONSTITUTIONAL
CONVICTIONS AFFIRMED BEFORE JUNE 19, 1961. 

MISS MAPP'S OHIO OFFENSE WAS COMMITTED MAY 23, 1957; LINKLETTER'S
LOUISIANA OFFENSE OCCURRED MORE THAN A YEAR LATER - AUGUST 16, 1958. 
LINKLETTER WAS TRIED IN LOUISIANA, CONVICTED, THE STATE SUPREME COURT
AFFIRMED, AND A REHEARING WAS DENIED MARCH 21, 1960, ALL WITHIN ABOUT
ONE YEAR AND SEVEN MONTHS AFTER HIS OFFENSE WAS COMMITTED.  THE OHIO
SUPREME COURT AFFIRMED MISS MAPP'S CONVICTION MARCH 23, 1960,
APPROXIMATELY TWO YEARS AND 10 MONTHS AFTER HER OFFENSE.  THUS, HAD THE
OHIO COURTS PROCEEDED WITH THE SAME EXPEDITION AS THOSE IN LOUISIANA,
OR HAD THE LOUISIANA COURTS PROCEEDED AS SLOWLY AS THE OHIO COURTS,
LINKLETTER'S CONVICTION WOULD NOT HAVE BEEN "FINALLY" DECIDED WITHIN
THE COURT'S DEFINITION OF "FINALLY" UNTIL WITHIN ABOUT 10 DAYS OF THE
TIME MISS MAPP'S CASE WAS DECIDED IN THIS COURT - WHICH WOULD HAVE
GIVEN LINKLETTER AMPLE TIME TO PETITION THIS COURT FOR VIRTUALLY
AUTOMATIC RELIEF ON DIRECT REVIEW AFTER THE MAPP CASE WAS DECIDED.  THE
COURT OFFERS NO DEFENSE BASED ON ANY KNOWN PRINCIPLE OF JUSTICE FOR
DISCRIMINATING AMONG DEFENDANTS WHO WERE SIMILARLY CONVICTED BY USE OF
EVIDENCE UNCONSTITUTIONALLY SEIZED.  IT CERTAINLY CANNOT DO SO AS
BETWEEN LINKLETTER AND MISS MAPP.  THE CRIME WITH WHICH SHE WAS CHARGED
TOOK PLACE MORE THAN A YEAR BEFORE HIS, YET THE DECISION TODAY SEEMS TO
REST ON THE FANCIFUL CONCEPT THAT THE FOURTH AMENDMENT PROTECTED HER
1957 OFFENSE AGAINST CONVICTION BY USE OF UNCONSTITUTIONAL EVIDENCE BUT
DENIED ITS PROTECTION TO LINKLETTER FOR HIS 1958 OFFENSE.  IN MAKING
THIS RULING THE COURT ASSUMES FOR ITSELF THE VIRTUE OF ACTING IN
HARMONY WITH A COMMENT OF JUSTICE HOLMES THAT "THE LIFE OF THE LAW HAS
NOT BEEN LOGIC:  IT HAS BEEN EXPERIENCE."  (FN1)  JUSTICE HOLMES WAS
NOT THERE TALKING ABOUT THE CONSTITUTION; HE WAS TALKING ABOUT THE
EVOLVING JUDGE-MADE LAW OF ENGLAND AND OF SOME OF OUR STATES WHOSE
JUDGES ARE ALLOWED TO FOLLOW IN THE COMMON LAW TRADITION.  IT SHOULD BE
REMEMBERED IN THIS CONNECTION THAT NO MEMBER OF THIS COURT HAS EVER
MORE SERIOUSLY CRITICIZED IT THAN DID JUSTICE HOLMES FOR READING ITS
OWN PREDILECTIONS INTO THE "VAGUE CONTOURS" OF THE DUE PROCESS CLAUSE. 
(FN2)  BUT QUITE APART FROM THAT, THERE IS NO EXPERIENCE OF THE PAST
THAT JUSTIFIES A NEW COURT-MADE RULE TO PERPETRATE A GROSSLY INVIDIOUS
AND UNFAIR DISCRIMINATION AGAINST LINKLETTER SIMPLY BECAUSE HE HAPPENED
TO BE PROSECUTED IN A STATE THAT WAS EVIDENTLY WELL UP WITH ITS
CRIMINAL COURT DOCKET.  IF THIS DISCRIMINATION CAN BE EXCUSED AT ALL IT
IS NOT BECAUSE OF EXPERIENCE BUT BECAUSE OF LOGIC - STERILE AND FORMAL
AT THAT - NOT, ACCORDING TO JUSTICE HOLMES, THE MOST DEPENDABLE GUIDE
IN LAWMAKING. 

WHEN WE GET BEYOND THE WAY THE NEW RULE WORKS AS BETWEEN PEOPLE
SITUATED LIKE LINKLETTER AND MISS MAPP, THE NEW CONTRIVANCE STANDS NO
BETTER.  I SAY "NEW" BECAUSE THE COURT ADMITS, AS IT MUST, THAT "IT IS
TRUE THAT HERETOFORE, WITHOUT DISCUSSION, WE HAVE APPLIED NEW
CONSTITUTIONAL RULES TO CASES FINALIZED BEFORE THE PROMULGATION OF THE
RULE."  ANTE, P. 628.  AND THE COURT ALSO REFERS TO A NUMBER OF CASES
IN WHICH THAT PRACTICE HAS BEEN FOLLOWED.  FOR EXAMPLE, IN GRIFFIN V.
ILLINOIS, 351 U.S. 12, WHERE WE ANNOUNCED THAT A PAUPER COULD NOT BE
DENIED THE RIGHT TO APPEAL BECAUSE OF HIS INDIGENCY, A SUGGESTION WAS
MADE IN A CONCURRING OPINION THAT THE COURT SHOULD APPLY ITS NEW RULE
TO FUTURE CASES ONLY.  ID., AT 25-26.  HOWEVER, IN 1958 THIS COURT DID
APPLY THE GRIFFIN RULE TO A CONVICTION OBTAINED IN 1935, OVER THE
DISSENTS OF TWO JUSTICES WHO SAID THAT THE GRIFFIN CASE DECIDED IN 1956
SHOULD NOT DETERMINE THE CONSTITUTIONALITY OF THE PETITIONER'S 1935
CONVICTION.  ESKRIDGE V. WASHINGTON, 357 U.S. 214. 

INTERESTING AS THE QUESTION MAY BE ABSTRACTLY, THIS CASE SHOULD NOT
BE DECIDED ON THE BASIS OF ARGUMENTS ABOUT WHETHER JUDGES "MAKE" LAW OR
"DISCOVER" IT WHEN PERFORMING THEIR DUTY OF INTERPRETING THE
CONSTITUTION.  THIS COURT RECOGNIZED IN CHICOT COUNTY DRAINAGE DISTRICT
V. BAXTER STATE BANK, 308 U.S. 371, 374, AN OPINION IN WHICH I JOINED,
THAT "AN ALL-INCLUSIVE STATEMENT OF A PRINCIPLE OF ABSOLUTE RETROACTIVE
INVALIDITY CANNOT BE JUSTIFIED."  AND WHERE STATE COURTS IN CERTAIN
SITUATIONS CHOSE TO APPLY THEIR DECISIONS TO THE FUTURE ONLY, THIS
COURT ALSO SAID THAT, "THE FEDERAL CONSTITUTION HAS NO VOICE"
FORBIDDING THEM TO DO SO.  GREAT NORTHERN R. CO. V. SUNBURST OIL & REF.
CO., 287 U.S. 358, 364.  BUT CF. KUHN V. FAIRMONT COAL CO., 215 U.S.
349, 372 (DISSENTING OPINION).  IN STATING THIS COURT'S POSITION ON THE
QUESTION, THE OPINION IN THE CHICOT COUNTY CASE RECOGNIZED THAT RIGHTS
AND INTERESTS MAY HAVE RESULTED FROM THE EXISTENCE AND OPERATION OF A
STATUTE WHICH SHOULD BE RESPECTED NOTWITHSTANDING ITS LATER BEING
DECLARED UNCONSTITUTIONAL: 

"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."  308
U.S., AT 374. 

THUS IN MOSSER V. DARROW, 341 U.S. 267, WHEN THIS COURT CREATED AN
ENTIRELY NEW RULE IMPOSING HEAVY FINANCIAL LIABILITY ON A TRUSTEE IN
BANKRUPTCY FOR ACTS WHICH AT THE TIME HE PERFORMED THEM HAD BEEN
PERFECTLY VALID UNDER THE LAW, I DISSENTED, STATING MY BELIEF THAT
ALTHOUGH THERE WAS "MUCH TO BE SAID IN FAVOR OF SUCH A RULE OF TRUSTEE
LIABILITY FOR CASES ARISING IN THE FUTURE," 341 U.S., AT 276, IT SHOULD
NOT BE APPLIED AGAINST TRUSTEES WHO HAD IN GOOD FAITH RELIED ON THE
EXISTENCE OF A DIFFERENT RULE IN THE PAST.  ON THE OTHER HAND, IN JAMES
V. UNITED STATES, 366 U.S. 213, I SUGGESTED IN AN OPINION IN WHICH MR.
JUSTICE DOUGLAS JOINED, THAT THERE WERE OBJECTIONS HAVING A PECULIAR
FORCE IN THE FIELD OF CRIMINAL LAW TO A JUDICIAL RULE TO THE EFFECT
THAT COURTS "SHOULD MAKE THEIR DECISIONS AS TO WHAT THE LAW IS APPLY
ONLY PROSPECTIVELY."  A MAJOR BASIS FOR WHAT WE SAID THERE WAS STATED
THIS WAY:  "OUR TROUBLE WITH THIS ASPECT OF THE COURT'S ACTION IS THAT
IT SEEMS TO US TO INDICATE THAT THE COURT HAS PASSED BEYOND THE
INTERPRETATION OF THE TAX STATUTE AND PROCEEDED SUBSTANTIALLY TO AMEND
IT. 

     *         *      *         *         * 

"IN OUR JUDGMENT ONE OF THE GREAT INHERENT RESTRAINTS UPON THIS
COURT'S DEPARTURE FROM THE FIELD OF INTERPRETATION TO ENTER THAT OF
LAWMAKING HAS BEEN THE FACT THAT ITS JUDGMENTS COULD NOT BE LIMITED TO
PROSPECTIVE APPLICATION."  366 U.S., AT 224-225. 

I ADHERE TO MY VIEWS IN JAMES, EXPRESSING OPPOSITION TO A GENERAL
RULE THAT WOULD ALWAYS APPLY NEW INTERPRETATIONS OF CRIMINAL LAWS
PROSPECTIVELY.  DOUBTLESS THERE MIGHT BE CIRCUMSTANCES IN WHICH
APPLYING A NEW INTERPRETATION OF THE LAW TO PAST EVENTS MIGHT LEAD TO
UNJUST CONSEQUENCES WHICH, AS WE SAID IN CHICOT, "CANNOT JUSTLY BE
IGNORED."  NO SUCH UNJUST CONSEQUENCES TO LINKLETTER, HOWEVER, CAN
POSSIBLY RESULT HERE BY GIVING HIM AND OTHERS LIKE HIM THE BENEFIT OF A
CHANGED CONSTITUTIONAL INTERPRETATION WHERE HE IS LANGUISHING IN JAIL
ON THE BASIS OF EVIDENCE CONCEDEDLY USED UNCONSTITUTIONALLY TO CONVICT
HIM.  AND I SIMPLY CANNOT BELIEVE THAT THE STATE OF LOUISIANA HAS ANY
"VESTED INTEREST" THAT WE SHOULD RECOGNIZE IN THESE CIRCUMSTANCES IN
ORDER TO KEEP LINKLETTER IN JAIL.  I THEREFORE WOULD FOLLOW THIS
COURT'S USUAL PRACTICE AND APPLY THE MAPP RULE TO UNCONSTITUTIONAL
CONVICTIONS WHICH HAVE RESULTED IN PERSONS BEING PRESENTLY IN PRISON. 

IN REFUSING TO GIVE LINKLETTER THE BENEFIT OF THE MAPP RULE, THE
COURT EXPRESSES THE VIEW THAT ITS "APPROACH IS PARTICULARLY CORRECT
WITH REFERENCE TO THE FOURTH AMENDMENT'S PROHIBITIONS AS TO
UNREASONABLE SEARCHES AND SEIZURES," INDICATING A DISPARAGING VIEW OF
THE FOURTH AMENDMENT THAT LEAVES ME SOMEWHAT PUZZLED AFTER MAPP AND
OTHER RECENT OPINIONS TALKING ABOUT THE INDISPENSABLE PROTECTIONS OF
THE AMENDMENT, ANTE, P. 629.  THEN THE COURT GOES ON TO FOLLOW A RECENT
PATTERN OF BALANCING AWAY BILL OF RIGHTS GUARANTEES AND BALANCES AWAY
(FN3) IN GREAT PART THE FOURTH AMENDMENT SAFEGUARDS ONE COULD
REASONABLY HAVE EXPECTED FROM THE MAPP OPINION AND THE OPINION IN FAY
V. NOIA, 372 U.S. 391, WHICH OPENED UP TO COLLATERAL ATTACK ALL
UNCONSTITUTIONAL CONVICTIONS EVEN THOUGH "FINAL."  EVEN USING THE
COURT'S OWN BALANCING PROCESS, HOWEVER, I THINK THOSE NOW IN PRISON
UNDER CONVICTIONS RESTING ON THE USE OF UNCONSTITUTIONALLY SEIZED
EVIDENCE SHOULD HAVE THEIR CONVICTIONS SET ASIDE AND BE GRANTED NEW
TRIALS CONDUCTED IN CONFORMITY WITH THE CONSTITUTION. 

                   I. 

AS THE COURT CONCEDES, ANTE, P. 628, THIS IS THE FIRST INSTANCE ON
RECORD WHERE THIS COURT, HAVING JURISDICTION, HAS EVER REFUSED TO GIVE
A PREVIOUSLY CONVICTED DEFENDANT THE BENEFIT OF A NEW AND MORE
EXPANSIVE BILL OF RIGHTS INTERPRETATION.  I AM AT A LOSS TO UNDERSTAND
WHY THOSE WHO SUFFER FROM THE USE OF EVIDENCE SECURED BY A SEARCH AND
SEIZURE IN VIOLATION OF THE FOURTH AMENDMENT SHOULD BE TREATED
DIFFERENTLY FROM THOSE WHO HAVE BEEN DENIED OTHER GUARANTEES OF THE
BILL OF RIGHTS.  SPEAKING OF THE RIGHT GUARANTEED BY THE FOURTH AND
FIFTH AMENDMENTS NOT TO BE CONVICTED ON "UNCONSTITUTIONAL EVIDENCE,"
THE COURT SAID IN MAPP, ONLY FOUR YEARS AGO, THAT: 

"  ...  WE CAN NO LONGER PERMIT THAT RIGHT TO REMAIN AN EMPTY
PROMISE.  BECAUSE IT IS ENFORCEABLE IN THE SAME MANNER AND TO LIKE
EFFECT AS OTHER BASIC RIGHTS SECURED BY THE DUE PROCESS CLAUSE, WE CAN
NO LONGER PERMIT IT TO BE REVOCABLE AT THE WHIM OF ANY POLICE OFFICER
WHO, IN THE NAME OF LAW ENFORCEMENT ITSELF, CHOOSES TO SUSPEND ITS
ENJOYMENT.  OUR DECISION, FOUNDED ON REASON AND TRUTH, GIVES TO THE
INDIVIDUAL NO MORE THAN THAT WHICH THE CONSTITUTION GUARANTEES HIM  ...
."  367 U.S., AT 660.    LINKLETTER WAS CONVICTED ON "UNCONSTITUTIONAL
EVIDENCE."  HE BROUGHT THIS FEDERAL HABEAS CORPUS PROCEEDING SEEKING
RELIEF FROM HIS PRIOR CONVICTION, WHICH THIS COURT HELD IN FAY V. NOIA,
372 U.S. 391, WAS THE PROPER WAY TO CHALLENGE A PREVIOUS CONVICTION
UNCONSTITUTIONALLY OBTAINED.  EVIDENCE USED AGAINST NOIA, HOWEVER, WAS
NOT OBTAINED BY AN UNLAWFUL SEARCH AND SEIZURE BUT BY A COERCED
CONFESSION.  NOIA'S CONVICTION HAD TAKEN PLACE 21 YEARS BEFORE HIS CASE
REACHED THIS COURT, AND WAS THEREFORE "FINAL."  AND IN RECK V. PATE,
367 U.S. 433, DECIDED IN 1961, THIS COURT SET ASIDE THE CONVICTION OF
RECK FOR A 1936 OFFENSE ON THE GROUND THAT A COERCED CONFESSION HAD
BEEN USED AGAINST HIM. 

THERE ARE PECULIAR REASONS WHY THE MAPP SEARCH AND SEIZURE
EXCLUSIONARY RULE SHOULD BE GIVEN LIKE DIGNITY AND EFFECT AS THE
COERCED CONFESSION EXCLUSIONARY RULE.  QUITE APART FROM THE COURT'S
POSITIVE STATEMENT IN MAPP THAT THE RIGHT GUARANTEED BY THE FOURTH AND
FIFTH AMENDMENTS NOT TO BE CONVICTED THROUGH USE OF UNCONSTITUTIONALLY
SEIZED EVIDENCE SHOULD BE GIVEN "LIKE EFFECT AS OTHER BASIC RIGHTS
SECURED BY THE DUE PROCESS CLAUSE ...  ,"  MAPP, LIKE MOST OTHER SEARCH
AND SEIZURE EXCLUSIONARY RULE CASES, RELIED HEAVILY ON BOYD V. UNITED
STATES, 116 U.S. 616.  IN REACHING THE CONCLUSION IN BOYD THAT EVIDENCE
OBTAINED BY UNLAWFUL SEARCH AND SEIZURE COULD NOT BE ADMITTED IN
EVIDENCE, THE BOYD COURT RELIED ON THE FIFTH AMENDMENT'S PROHIBITION
AGAINST COMPELLING A MAN TO BE WITNESS AGAINST HIMSELF.  THE BOYD COURT
HELD THAT THE FIFTH AMENDMENTS' PROHIBITION AGAINST SELF-INCRIMINATION
GAVE CONSTITUTIONAL JUSTIFICATION TO EXCLUSION OF EVIDENCE OBTAINED BY
AN UNLAWFUL SEARCH AND SEIZURE.  THE WHOLE COURT (FN4) TREATED SUCH A
SEARCH AND SEIZURE AS COMPELLING THE PERSON WHOSE PROPERTY WAS THUS
TAKEN TO GIVE EVIDENCE AGAINST HIMSELF.  THERE WAS CERTAINLY NOTHING IN
THE BOYD CASE TO INDICATE THAT THE FOURTH AND FIFTH AMENDMENTS WERE TO
BE GIVEN DIFFERENT DIGNITY AND RESPECT IN DETERMINING WHAT, WHEN AND
UNDER WHAT CIRCUMSTANCES PERSONS ARE ENTITLED TO THEIR FULL
PROTECTION.  SEE ONE 1958 PLYMOUTH SEDAN V. PENNSYLVANIA, 380 U.S. 693,
703 (CONCURRING OPINION). 

THIS COURT'S OPINION IN MAPP NOT ONLY BY THE EXPRESS LANGUAGE ALREADY
QUOTED BUT IN NUMEROUS OTHER PLACES TREATED THE TWO AMENDMENTS AS
INSEPARABLE FROM THE STANDPOINT OF THE EXCLUSIONARY RULE.  SPEAKING OF
THE TWO, THE COURT SAID: 

"THE VERY LEAST THAT TOGETHER THEY ASSURE IN EITHER SPHERE IS THAT NO
MAN IS TO BE CONVICTED ON UNCONSTITUTIONAL EVIDENCE."  367 U.S., AT
657.   AGAIN THE COURT SAID IN MAPP THAT: 

"'CONVICTION BY MEANS OF UNLAWFUL SEIZURES AND ENFORCED CONFESSIONS
...  SHOULD FIND NO SANCTION IN THE JUDGMENTS OF THE COURTS  ...  .'" 
ID., AT 648. 

THIS STATEMENT APPEARING IN MAPP HAD ORIGINALLY BEEN MADE IN WEEKS V.
UNITED STATES, 232 U.S. 383, 392.  WEEKS, WHICH ESTABLISHED THE FEDERAL
EXCLUSIONARY RULE FOR THE FIRST TIME, DID SO BY RELYING GREATLY ON THE
BOYD CASE AND BOYD'S TREATMENT OF UNLAWFUL SEIZURES AND ENFORCED
CONFESSIONS AS FALLING INTO PRECISELY THE SAME CONSTITUTIONAL
CATEGORY.  YET THE COURT TODAY BY A CHAIN OF CIRCUITOUS REASONING
DEGRADES THE SEARCH AND SEIZURE EXCLUSIONARY RULE TO A POSITION FAR
BELOW THAT OF THE RULE EXCLUDING EVIDENCE OBTAINED BY COERCED
CONFESSIONS.  THE RESULT IS THAT THIS DEPARTURE FROM THE PHILOSOPHY OF
MAPP DENIES LINKLETTER A RIGHT TO CHALLENGE HIS CONVICTION FOR AN
OFFENSE COMMITTED IN AUGUST 1958 WHILE IT LEAVES MISS MAPP FREE BECAUSE
OF AN OFFENSE SHE COMMITTED IN 1957. 

                                        II. 

ONE REASON - PERHAPS A BASIC ONE - PUT FORWARD BY THE COURT FOR ITS
REFUSAL TO GIVE LINKLETTER THE BENEFIT OF THE SEARCH AND SEIZURE
EXCLUSIONARY RULE IS THE REPEATED STATEMENT THAT THE PURPOSE OF THAT
RULE IS TO DETER SHERIFFS, POLICEMEN, AND OTHER LAW OFFICERS FROM
MAKING UNLAWFUL SEARCHES AND SEIZURES.  THE INFERENCE I GATHER FROM
THESE REPEATED STATEMENTS IS THAT THE RULE IS NOT A RIGHT OR PRIVILEGE
ACCORDED TO DEFENDANTS CHARGED WITH CRIME BUT IS A SORT OF PUNISHMENT
AGAINST OFFICERS IN ORDER TO KEEP THEM FROM DEPRIVING PEOPLE OF THEIR
CONSTITUTIONAL RIGHTS.  IN PASSING I WOULD SAY THAT IF THAT IS THE SOLE
PURPOSE, REASON, OBJECT AND EFFECT OF THE RULE, THE COURT'S ACTION IN
ADOPTING IT SOUNDS MORE LIKE LAW-MAKING THAN CONSTRUING THE
CONSTITUTION.  COMPARE MAPP V. OHIO, 367 U.S. 643, 661 (CONCURRING
OPINION).  BOTH THE MAJORITY AND THE CONCURRING MEMBERS OF THE BOYD
COURT SEEMED TO BELIEVE THEY WERE CONSTRUING THE CONSTITUTION.  QUITE
ASIDE FROM THAT ASPECT, HOWEVER, THE UNDOUBTED IMPLICATION OF TODAY'S
OPINION THAT THE RULE IS NOT A SAFEGUARD FOR DEFENDANTS BUT IS A MERE
PUNISHING ROD TO BE APPLIED TO LAW ENFORCEMENT OFFICERS IS A RATHER
STARTLING DEPARTURE FROM MANY PAST OPINIONS, AND EVEN FROM MAPP
ITSELF.  MAPP QUOTED FROM THE COURT'S EARLIER OPINION IN WEEKS V.
UNITED STATES, SUPRA, CERTAINLY NOT WITH DISAPPROVAL, SAYING THAT THE
COURT "IN THAT CASE CLEARLY STATED THAT USE OF THE SEIZED EVIDENCE
INVOLVED 'A DENIAL OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED.'"  367
U.S., AT 648.  I HAVE READ AND REREAD THE MAPP OPINION BUT HAVE BEEN
UNABLE TO FIND ONE WORD IN IT TO INDICATE THAT THE EXCLUSIONARY SEARCH
AND SEIZURE RULE SHOULD BE LIMITED ON THE BASIS THAT IT WAS INTENDED TO
DO NOTHING IN THE WORLD EXCEPT TO DETER OFFICERS OF THE LAW.  CERTAINLY
NO SUCH LIMITATION IS IMPLIED BY THE COURT'S STATEMENT IN MAPP THAT
WITHOUT THE RULE: 

"THE ASSURANCE AGAINST UNREASONABLE  ...  SEARCHES AND SEIZURES WOULD
BE 'A FORM OF WORDS,' VALUELESS AND UNDESERVING OF MENTION IN A
PERPETUAL CHARTER OF INESTIMABLE HUMAN LIBERTIES  ...  ."  367 U.S., AT
655. 

THE COURT WENT ON TO INDICATE ITS BELIEF THAT THE RULE WAS "'IMPLICIT
IN THE CONCEPT OF ORDERED LIBERTY,'" ID., AT 655, AND THAT IT IS AN
"ESSENTIAL INGREDIENT" OF THE CONSTITUTIONAL GUARANTEE.  ID., AT 651. 
IF THE EXCLUSIONARY RULE HAS THE HIGH PLACE IN OUR CONSTITUTIONAL PLAN
OF "ORDERED LIBERTY," WHICH THIS COURT IN MAPP AND OTHER CASES HAS SO
FREQUENTLY SAID THAT IT DOES HAVE, WHAT POSSIBLE VALID REASON CAN
JUSTIFY KEEPING PEOPLE IN JAIL UNDER CONVICTIONS OBTAINED BY WANTON
DISREGARD OF A CONSTITUTIONAL PROTECTION WHICH THE COURT ITSELF IN MAPP
TREATED AS BEING ONE OF THE "CONSTITUTIONAL RIGHTS OF THE ACCUSED"? 

                                         III. 

THE COURT SAYS THAT THE EXCLUSIONARY RULE'S PURPOSE OF PREVENTING LAW
ENFORCEMENT OFFICERS FROM MAKING LAWLESS SEARCHES AND SEIZURES "WILL
NOT AT THIS LATE DATE BE SERVED BY THE WHOLESALE RELEASE OF THE GUILTY
VICTIMS."  ANTE, P. 637.  IT HAS NOT BEEN THE USUAL THING TO CUT DOWN
TRIAL PROTECTIONS GUARANTEED BY THE CONSTITUTION ON THE BASIS THAT SOME
GUILTY PERSONS MIGHT ESCAPE.  THERE IS PROBABLY NO ONE OF THE RIGHTS IN
THE BILL OF RIGHTS THAT DOES NOT MAKE IT MORE DIFFICULT TO CONVICT
DEFENDANTS.  BUT ALL OF THEM ARE BASED ON THE PREMISE, I SUPPOSE, THAT
THE BILL OF RIGHTS' SAFEGUARDS SHOULD BE FAITHFULLY ENFORCED BY THE
COURTS WITHOUT REGARD TO A PARTICULAR JUDGE'S JUDGMENT AS TO WHETHER
MORE PEOPLE COULD BE CONVICTED BY A REFUSAL OF COURTS TO ENFORCE THE
SAFEGUARDS.  SUCH HAS HERETOFORE BEEN ACCEPTED AS A GENERAL MAXIM.  IN
ANSWER TO AN ARGUMENT MADE IN THE MAPP CASE, THAT APPLICATION OF THE
EXCLUSIONARY RULE TO THE STATES MIGHT ALLOW GUILTY CRIMINALS TO GO
FREE, THIS COURT CONCEDED THAT: 

"IN SOME CASES THIS WILL UNDOUBTEDLY BE THE RESULT  ...  .  THE
CRIMINAL GOES FREE, IF HE MUST, BUT IT IS THE LAW THAT SETS HIM FREE. 
NOTHING CAN DESTROY A GOVERNMENT MORE QUICKLY THAN ITS FAILURE TO
OBSERVE ITS OWN LAWS, OR WORSE, ITS DISREGARD OF THE CHARTER OF ITS OWN
EXISTENCE."  MAPP V. OHIO, SUPRA, AT 659. 

                                         IV. 

THE COURT SAYS THAT: 

"TO MAKE THE RULE OF MAPP RETROSPECTIVE WOULD TAX THE ADMINISTRATION
OF JUSTICE TO THE UTMOST.  HEARINGS WOULD HAVE TO BE HELD ON THE
EXCLUDABILITY OF EVIDENCE LONG SINCE DESTROYED, MISPLACED OR
DETERIORATED.  IF IT IS EXCLUDED, THE WITNESSES AVAILABLE AT THE TIME
OF THE ORIGINAL TRIAL WILL NOT BE AVAILABLE OR IF LOCATED THEIR MEMORY
WILL BE DIMMED.  TO THUS LEGITIMATE SUCH AN EXTRAORDINARY PROCEDURAL
WEAPON THAT HAS NO BEARING ON GUILT WOULD SERIOUSLY DISRUPT THE
ADMINISTRATION OF JUSTICE."  ANTE, PP. 637-638. 

THIS SAME ARGUMENT WOULD CERTAINLY APPLY WITH MUCH FORCE TO MANY
CASES WE HAVE HEARD IN THE PAST INCLUDING RECK V. PATE, SUPRA, AND FAY
V. NOIA, SUPRA.  RECK WAS DIRECTED TO BE GIVEN A NEW TRIAL 25 YEARS
AFTER HIS OFFENSE AND NOIA 21 YEARS AFTER CONVICTION.  BOTH WERE GIVEN
RELIEF UNDER JUST "SUCH AN EXTRAORDINARY PROCEDURAL WEAPON" AS THE
COURT SEEMS TODAY TO INVEIGH AGAINST.  INDEED IN NOIA'S CASE THIS COURT
WENT TO GREAT LENGTHS TO EXPLAIN IN AN EXHAUSTIVE AND IN WHAT I
CONSIDER TO BE A VERY NOTABLE AND WORTHWHILE OPINION THAT HABEAS CORPUS
WAS DESIGNED TO GO BEHIND "FINAL" JUDGMENTS AND RELEASE PEOPLE WHO WERE
HELD ON CONVICTIONS OBTAINED BY REASON OF A DENIAL OF CONSTITUTIONAL
RIGHTS.  A GLANCE AT THE BRIEFS AND THIS COURT'S OPINIONS IN BOTH RECK
AND NOIA WILL REVEAL THAT THIS COURT REJECTED PRECISELY THE SAME KIND
OF ARGUMENTS AND REASONING THAT I HAVE JUST QUOTED FROM THE COURT'S
OPINION JUSTIFYING ITS JUDGMENT IN THIS CASE.  WHAT THE COURT HELD IN
NOIA DID NOT, AS THE DISSENTING JUSTICE CHARGED IT WOULD, SERIOUSLY
DISRUPT THE ADMINISTRATION OF JUSTICE.  (FN5)  IT MERELY OPENED UP TO
COLLATERAL REVIEW CASES OF MEN WHO WERE IN PRISON DUE TO CONVICTIONS
WHERE THEIR CONSTITUTIONAL RIGHTS HAD BEEN DISREGARDED.  NOIA RESTED ON
THE SOUND PRINCIPLE THAT PEOPLE IN JAIL, WITHOUT REGARD TO WHEN THEY
WERE PUT THERE, WHO WERE CONVICTED BY THE USE OF UNCONSTITUTIONAL
EVIDENCE WERE ENTITLED IN A GOVERNMENT DEDICATED TO JUSTICE AND
FAIRNESS TO BE ALLOWED TO HAVE A NEW TRIAL WITH THE SAFEGUARDS THE
CONSTITUTION PROVIDES. 

LITTLE CONSOLATION CAN BE GATHERED BY PEOPLE WHO LANGUISH IN JAIL
UNDER UNCONSTITUTIONAL CONVICTIONS FROM THE COURT'S STATEMENT THAT "THE
RUPTURED PRIVACY OF THE VICTIMS' HOMES AND EFFECTS CANNOT BE RESTORED. 
REPARATION COMES TOO LATE."  ANTE, P. 637.  LINKLETTER IS STILL IN
JAIL.  HIS CLAIM IS NO MORE "TOO LATE" THAN WAS NOIA'S.  (FN6) 

THE PLAIN FACTS HERE ARE THAT THE COURT'S OPINION CUTS OFF MANY
DEFENDANTS WHO ARE NOW IN JAIL FROM ANY HOPE OF RELIEF FROM
UNCONSTITUTIONAL CONVICTIONS.  THE OPINION TODAY ALSO BEATS A TIMID
RETREAT FROM THE WHOLESOME AND REFRESHING PRINCIPLES ANNOUNCED IN
NOIA.  NO STATE SHOULD BE CONSIDERED TO HAVE A VESTED INTEREST IN
KEEPING PRISONERS IN JAIL WHO WERE CONVICTED BECAUSE OF LAWLESS CONDUCT
BY THE STATE'S OFFICIALS.  CAREFUL ANALYSIS OF THE COURT'S OPINION
SHOWS THAT IT RESTS ON THE PREMISE THAT A STATE'S ASSUMED INTEREST IN
SUSTAINING CONVICTIONS OBTAINED UNDER THE OLD, REPUDIATED RULE
OUTWEIGHS THE INTERESTS BOTH OF THAT STATE AND OF THE INDIVIDUALS
CONVICTED IN HAVING WRONGFUL CONVICTIONS SET ASIDE.  IT CERTAINLY
OFFENDS MY SENSE OF JUSTICE TO SAY THAT A STATE HOLDING IN JAIL PEOPLE
WHO WERE CONVICTED BY UNCONSTITUTIONAL METHODS HAS A VESTED INTEREST IN
KEEPING THEM THERE THAT OUTWEIGHS THE RIGHT OF PERSONS ADJUDGED GUILTY
OF CRIME TO CHALLENGE THEIR UNCONSTITUTIONAL CONVICTIONS AT ANY TIME. 
NO WORDS CAN OBSCURE THE SIMPLE FACT THAT THE PROMISES OF MAPP AND NOIA
ARE TO A GREAT EXTENT BROKEN BY THE DECISION HERE.  I WOULD REVERSE. 

FN1  HOLMES, THE COMMON LAW 5 (HOWE ED. 1963). 

FN2  ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525, 568 (DISSENTING
OPINION). 

FN3  SEE UNITED STATES EX REL. ANGELET V. FAY, 333 F.2D 12, 27
(DISSENTING OPINION OF JUDGE MARSHALL). 

FN4  MR. JUSTICE MILLER, JOINED BY CHIEF JUSTICE WAITE, AGREED WITH
THE COURT THAT THE FIFTH AMENDMENT BARRED USE AT A TRIAL OF EVIDENCE
OBTAINED THROUGH A SUBPOENA COMPELLING PRODUCTION OF A MAN'S PRIVATE
PAPERS TO BE USED IN A CRIMINAL PROSECUTION OF HIM; MR. JUSTICE MILLER
DID NOT AGREE THAT A STATUTE AUTHORIZING SUCH A SUBPOENA VIOLATED THE
FOURTH AMENDMENT.  BOYD V. UNITED STATES, 116 U.S. 616, 638. 

FN5  SEE FAY V. NOIA, 372 U.S. 391, 445 (CLARK, J., DISSENTING). 

FN6  "SURELY NO FAIR-MINDED PERSON WILL CONTEND THAT THOSE WHO HAVE
BEEN DEPRIVED OF THEIR LIBERTY WITHOUT DUE PROCESS OF LAW OUGHT
NEVERTHELESS TO LANGUISH IN PRISON.  NOIA, NO LESS THAN HIS
CODEFENDANTS CAMINITO AND BONINO, IS CONCEDED TO HAVE BEEN THE VICTIM
OF UNCONSTITUTIONAL STATE ACTION.  NOIA'S CASE STANDS ON ITS OWN; BUT
SURELY NO JUST AND HUMANE LEGAL SYSTEM CAN TOLERATE A RESULT WHEREBY A
CAMINITO AND A BONINO ARE AT LIBERTY BECAUSE THEIR CONFESSIONS WERE
FOUND TO HAVE BEEN COERCED YET A NOIA, WHOSE CONFESSION WAS ALSO
COERCED, REMAINS IN JAIL FOR LIFE.  FOR SUCH ANOMALIES, SUCH AFFRONTS
TO THE CONSCIENCE OF A CIVILIZED SOCIETY, HABEAS CORPUS IS PREDESTINED
BY ITS HISTORICAL ROLE IN THE STRUGGLE FOR PERSONAL LIBERTY TO BE THE
ULTIMATE REMEDY."  FAY V. NOIA, 372 U.S. 391, 441. 
..END :








ANGELET V. FAY 381 U.S. 654 


NO. 578.  ARGUED MARCH 11, 1965.  - DECIDED JUNE 7, 1965.  - 333 F.2D
12, AFFIRMED. 


PETITIONER WAS CONVICTED IN A NEW YORK STATE COURT IN 1951 FOR A
NARCOTICS VIOLATION BASED ON AN ILLEGAL SEARCH OF HIS APARTMENT
CONDUCTED BY LOCAL POLICE JOINED BY FEDERAL NARCOTICS AGENTS.  AFTER
THE DECISION IN MAPP V. OHIO, 367 U.S. 643, PETITIONER SOUGHT A WRIT OF
HABEAS CORPUS.  THE FEDERAL DISTRICT COURT DENIED THE WRIT AND THE
COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE EXCLUSIONARY RULE OF MAPP V. OHIO DOES NOT APPLY
RETROSPECTIVELY.  LINKLETTER V. WALKER, ANTE, P. 618, FOLLOWED.  P.
656. 

2.  THE PARTICIPATION OF FEDERAL AGENTS IN THE SEARCH AND SEIZURE
DOES NOT REQUIRE REVERSAL.  REA V. UNITED STATES, 350 U.S. 214,
DISTINGUISHED.  EVEN IF AN EXCLUSIONARY RULE WERE FASHIONED TO BAR THE
FEDERAL AGENTS' TESTIMONY, IT WOULD NOT, UNDER LINKLETTER V. WALKER,
HAVE RETROSPECTIVE APPLICATION.  P. 656. 

ANGELET V. FAY, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 95, LINKLETTER V. WALKER, ANTE, P.
618.  PETITIONER WAS CONVICTED IN A NEW YORK STATE COURT IN 1951 FOR
POSSESSION OF NARCOTICS WITH INTENT TO SELL.  ON DECEMBER 21, 1950, TWO
DETECTIVES ATTACHED TO THE NARCOTICS SQUAD OF THE NEW YORK CITY POLICE
DEPARTMENT ENTERED PETITIONER'S APARTMENT BY A DOOR OPENED BY A PAINTER
WHO WAS JUST LEAVING.  THEY IGNORED THE PROTEST OF PETITIONER AND
PROCEEDED, WITHOUT A WARRANT, TO SEARCH THE APARTMENT.  UPON ENTERING,
ONE OF THE OFFICERS CALLED AN AGENT OF THE FEDERAL BUREAU OF
NARCOTICS.  AFTER TWO FEDERAL AGENTS ARRIVED THE LOCAL AND FEDERAL
OFFICERS MADE A THOROUGH SEARCH OF THE APARTMENT.  ONE OF THE LOCAL
OFFICERS FOUND 54 CELLOPHANE ENVELOPES, 106 EMPTY CAPSULES, A BOX OF
STAPLES AND A SCALE.  A FEDERAL AGENT FOUND FOUR PACKAGES UNDER A HAT. 
ANALYSIS REVEALED THAT THREE OF THE PACKETS CONTAINED HEROIN AND THE
OTHER CONTAINED COCAINE.  THESE ITEMS WERE INTRODUCED IN EVIDENCE AT
THE STATE TRIAL WITHOUT OBJECTION OF PETITIONER'S COUNSEL.  NOR WAS
OBJECTION MADE TO THE PARTICIPATION OF THE FEDERAL NARCOTICS AGENTS IN
THE INVESTIGATION.  AFTER CONVICTION PETITIONER FILED A NOTICE OF
APPEAL TO THE APPELLATE DIVISION BUT THE APPEAL WAS DISMISSED IN MARCH
OF 1952. 

IN AUGUST 1961, AFTER MAPP V. OHIO, 367 U.S. 643, WAS DECIDED,
PETITIONER RESORTED TO STATE POST-CONVICTION REMEDIES CLAIMING THAT THE
EVIDENCE FOUND IN HIS APARTMENT AND INTRODUCED AGAINST HIM HAD BEEN
ILLEGALLY SEIZED AND THAT HIS CONVICTION HAD THEREFORE BEEN OBTAINED IN
VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS.  UPON SEEKING HABEAS
CORPUS IN THE UNITED STATES DISTRICT COURT ON THE SAME GROUNDS HIS
APPLICATION WAS DENIED.  THE TRIAL JUDGE REFUSED TO APPLY MAPP
RETROSPECTIVELY.  THE COURT OF APPEALS SITTING EN BANC AFFIRMED BY A
DIVIDED VOTE.  333 F.2D 12.  WE GRANTED CERTIORARI, 379 U.S. 815
(1964), AND SET THIS CASE FOR ARGUMENT WITH LINKLETTER, SUPRA. THAT
CASE ANSWERS PETITIONER'S POINT AS TO THE RETROSPECTIVE APPLICATION OF
MAPP. 

HOWEVER, PETITIONER ALSO CONTENDS THAT THE PARTICIPATION OF FEDERAL
NARCOTICS AGENTS IN THE SEARCH AND SEIZURE REQUIRES REVERSAL HERE,
CITING REA V. UNITED STATES, 350 U.S. 214 (1956).  WE CANNOT AGREE. 
THAT CASE INVOKED THE SUPERVISORY POWER OF A FEDERAL COURT OVER A
FEDERAL LAW ENFORCEMENT OFFICER AND WE HELD THAT THE LATTER MIGHT BE
ENJOINED FROM APPEARING IN A STATE TRIAL FOR THE PURPOSE OF OFFERING
EVIDENCE PREVIOUSLY SEIZED BY HIM ILLEGALLY AS A FEDERAL OFFICER AND SO
FOUND BY A FEDERAL COURT.  BUT EVEN IF AN EXCLUSIONARY RULE WERE
FASHIONED TO BAR USE OF THE FEDERAL AGENT'S TESTIMONY IN THE ABSENCE OF
A FEDERAL COURT RESTRAINT, THE PETITIONER WOULD BE ENTITLED TO NO
RELIEF.  SUCH AN EXCLUSIONARY RULE WOULD DEPEND UPON THE REASONS GIVEN
IN MAPP AND UNDER LINKLETTER, SUPRA, WOULD NOT HAVE RETROSPECTIVE
APPLICATION.  AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS WOULD REVERSE THE JUDGMENT
OF THE COURT OF APPEALS FOR THE REASONS STATED IN MR. JUSTICE BLACK'S
DISSENTING OPINION IN LINKLETTER V. WALKER, ANTE, P. 640. 
..END :
















UNITED MINE WORKERS OF AMERICA V. PENNINGTON 381 U.S. 657 


NO. 48.  ARGUED JANUARY 27, 1965.  - DECIDED JUNE 7, 1965.  - 325 F.2D
804, REVERSED AND REMANDED. 


THE TRUSTEES OF THE UNITED MINE WORKERS OF AMERICA WELFARE AND
RETIREMENT FUND SUED RESPONDENTS, PARTNERS IN A COAL MINING COMPANY,
FOR ROYALTY PAYMENTS UNDER THE NATIONAL BITUMINOUS COAL WAGE AGREEMENT
OF 1950, AS AMENDED.  RESPONDENTS FILED A CROSS CLAIM FOR DAMAGES,
ALLEGING THAT THE TRUSTEES, THE UMW AND CERTAIN LARGE COAL OPERATORS
HAD CONSPIRED TO RESTRAIN AND MONOPOLIZE COMMERCE IN VIOLATION OF SECS.
1 AND 2 OF THE SHERMAN ACT.  IT WAS ALLEGED THAT, TO ERADICATE
OVERPRODUCTION IN THE COAL INDUSTRY, THE UMW AND LARGE OPERATORS AGREED
TO ELIMINATE THE SMALLER COMPANIES, BY IMPOSING THE TERMS OF THE 1950
AGREEMENT ON ALL COMPANIES REGARDLESS OF ABILITY TO PAY, BY INCREASING
ROYALTIES DUE THE WELFARE FUND, BY EXCLUDING THE MARKETING, PRODUCTION
AND SALE OF NONUNION COAL, BY REFUSING TO LEASE COAL LANDS TO NONUNION
OPERATORS AND REFUSING TO BUY OR SELL COAL MINED BY SUCH OPERATORS, BY
OBTAINING FROM THE SECRETARY OR LABOR THE ESTABLISHMENT OF A MINIMUM
WAGE UNDER THE WALSH-HEALEY ACT HIGHER THAN THAT IN OTHER INDUSTRIES,
BY URGING TVA TO CURTAIL SPOT MARKET PURCHASES WHICH WERE EXEMPT FROM
THE WALSH-HEALEY ORDER, AND BY WAGING A PRICE-CUTTING CAMPAIGN TO DRIVE
SMALL COMPNIES OUT OF THE SPOT MARKET.  PETITIONER'S MOTIONS TO DISMISS
WERE DENIED AND THE JURY RETURNED A VERDICT AGAINST THE TRUSTEES AND
THE UMW.  THE TRIAL COURT SET ASIDE THE VERDICT AGAINST THE TRUSTEES
BUT OVERRULED THE UNION'S MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT OR FOR A NEW TRIAL.  THE COURT OF APPEALS AFFIRMED, RULING THAT
THE UNION WAS NOT EXEMPT FROM LIABILITY UNDER THE SHERMAN ACT UNDER THE
FACTS OF THE CASE.  HELD: 

1.  AN AGREEMENT BETWEEN THE UNION AND LARGE OPERATORS TO SECURE
UNIFORM LABOR STANDARDS THROUGHOUT THE INDUSTRY WOULD NOT BE EXEMPT
FROM THE ANTITRUST LAWS.  PP. 661-669. 

(A)  AN AGREEMENT RESULTING FROM UNION-EMPLOYER BARGAINING IS NOT
AUTOMATICALLY EXEMPT FROM SHERMAN ACT SCRUTINY MERELY BECAUSE THE
NEGOTIATIONS COVERED WAGE STANDARDS, OR ANY OTHER COMPULSORY SUBJECT OF
BARGAINING.  PP. 664-665. 

(B)  A UNION MAY MAKE WAGE AGREEMENTS WITH A MULTI-EMPLOYER
BARGAINING UNIT AND MAY, IN PURSUANCE OF ITS OWN SELF-INTERESTS, SEEK
TO OBTAIN THE SAME TERMS FROM OTHER EMPLOYERS, BUT IT FORFEITS ITS
ANTITRUST EXEMPTION WHEN IT AGREES WITH A GROUP OF EMPLOYERS TO IMPOSE
A CERTAIN WAGE SCALE ON OTHER BARGAINING UNITS AND THUS JOINS A
CONSPIRACY TO CURTAIL COMPETITION.  PP. 665-666. 

(C)  NOTHING IN THE NATIONAL LABOR POLICY INDICATES THAT A UNION AND
EMPLOYERS IN ONE BARGAINING UNIT ARE FREE TO BARGAIN ABOUT WAGES OR
WORKING CONDITIONS OF OTHER BARGAINING UNITS OR TO SETTLE THESE MATTERS
FOR THE WHOLE INDUSTRY, NOR DOES IT ALLOW AN EMPLOYER TO CONDITION THE
SIGNING OF AN AGREEMENT ON THE UNION'S IMPOSITION OF A SIMILAR CONTRACT
ON HIS COMPETITORS.  PP. 666-667. 

(D)  ANTITRUST POLICY CLEARLY RESTRICTS EMPLOYER-UNION AGREEMENTS
SEEKING TO SET LABOR STANDARDS OUTSIDE THE BARGAINING UNIT, IN VIEW OF
THE ANTICOMPETITIVE POTENTIAL AND THE SURRENDER BY THE UNION OF ITS
FREEDOM OF ACTION WITH RESPECT TO BARGAINING POLICY.  P. 668. 

2.  CONCERTED EFFORTS TO INFLUENCE PUBLIC OFFICIALS DO NOT VIOLATE
THE ANTITRUST LAWS EVEN THOUGH INTENDED TO ELIMINATE COMPETITION. 
EASTERN R. CONF. V. NOERR MOTORS, 365 U.S. 127, FOLLOWED.  PP. 669
672. 

(A)  INSTRUCTIONS TO THE JURY THAT ANTICOMPETITIVE PURPOSE COULD
SUPPORT AN ILLEGAL CONSPIRACY BASED SOLELY ON THE WALSH-HEALEY AND TVA
EPISODES DID NOT CONSTITUTE MERELY HARMLESS ERROR.  P. 670. 

(B)  RESPONDENTS WERE NOT ENTITLED TO DAMAGES UNDER THE SHERMAN ACT
FOR ANY INJURY SUFFERED FROM THE ACTIONS OF THE SECRETARY OF LABOR, AND
THE JURY SHOULD HAVE BEEN SO INSTRUCTED.  PP. 671-672. 

UNITED MINE WORKERS OF AMERICA V. PENNINGTON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS ACTION BEGAN AS A SUIT BY THE TRUSTEES OF THE UNITED MINE
WORKERS OF AMERICA WELFARE AND RETIREMENT FUND AGAINST THE RESPONDENTS,
INDIVIDUALLY AND AS OWNERS OF PHILLIPS BROTHERS COAL COMPANY, A
PARTNERSHIP, SEEKING TO RECOVER SOME $55,000 IN ROYALTY PAYMENTS
ALLEGED TO BE DUE AND PAYABLE UNDER THE TRUST PROVISIONS OF THE
NATIONAL BITUMINOUS COAL WAGE AGREEMENT OF 1950, AS AMENDED, SEPTEMBER
29, 1952, EXECUTED BY PHILLIPS AND UNITED MINE WORKERS OF AMERICA ON OR
ABOUT OCTOBER 1, 1953, AND RE-EXECUTED WITH AMENDMENTS ON OR ABOUT
SEPTEMBER 8, 1955, AND OCTOBER 22, 1956.  PHILLIPS FILED AN ANSWER AND
A CROSS CLAIM AGAINST UMW, ALLEGING IN BOTH THAT THE TRUSTEES, THE UMW
AND CERTAIN LARGE COAL OPERATORS HAD CONSPIRED TO RESTRAIN AND TO
MONOPOLIZE INTERSTATE COMMERCE IN VIOLATION OF SECS. 1 AND 2 OF THE
SHERMAN ANTITRUST ACT, AS AMENDED, 26 STAT. 209, 15 U.S.C. SECS. 1, 2
(1958 ED.).  ACTUAL DAMAGES IN THE AMOUNT OF $100,000 WERE CLAIMED FOR
THE PERIOD BEGINNING FEBRUARY 14, 1954, AND ENDING DECEMBER 31, 1958. 
(FN1) 

THE ALLEGATIONS OF THE CROSS CLAIM WERE ESSENTIALLY AS FOLLOWS:
PRIOR TO THE 1950 WAGE AGREEMENT BETWEEN THE OPERATORS AND THE UNION,
SEVERE CONTROVERSY HAD EXISTED IN THE INDUSTRY, PARTICULARLY OVER
WAGES, THE WELFARE FUND AND THE UNION'S EFFORTS TO CONTROL THE WORKING
TIME OF ITS MEMBERS.  SINCE 1950, HOWEVER, RELATIVE PEACE HAS EXISTED
IN THE INDUSTRY, ALL AS THE RESULT OF THE 1950 WAGE AGREEMENT AND ITS
AMENDMENTS AND THE ADDITIONAL UNDERSTANDINGS ENTERED INTO BETWEEN UMW
AND THE LARGE OPERATORS.  ALLEGEDLY THE PARTIES CONSIDERED
OVERPRODUCTION TO BE THE CRITICAL PROBLEM OF THE COAL INDUSTRY.  THE
AGREED SOLUTION WAS TO BE THE ELIMINATION OF THE SMALLER COMPANIES, THE
LARGER COMPANIES THEREBY CONTROLLING THE MARKET.  MORE SPECIFICALLY,
THE UNION ABANDONED ITS EFFORTS TO CONTROL THE WORKING TIME OF THE
MINERS, AGREED NOT TO OPPOSE THE RAPID MECHANIZATION OF THE MINES WHICH
WOULD SUBSTANTIALLY REDUCE MINE EMPLOYMENT, AGREED TO HELP FINANCE SUCH
MECHANIZATION AND AGREED TO IMPOSE THE TERMS OF THE 1950 AGREEMENT ON
ALL OPERATORS WITHOUT REGARD TO THEIR ABILITY TO PAY.  THE BENEFIT TO
THE UNION WAS TO BE INCREASED WAGES AS PRODUCTIVITY INCREASED WITH
MECHANIZATION, THESE INCREASES TO BE DEMANDED OF THE SMALLER COMPANIES
WHETHER MECHANIZED OR NOT.  ROYALTY PAYMENTS INTO THE WELFARE FUND WERE
TO BE INCREASED ALSO, AND THE UNION WAS TO HAVE EFFECTIVE CONTROL OVER
THE FUND'S USE.  THE UNION AND LARGE COMPANIES AGREED UPON OTHER STEPS
TO EXCLUDE THE MARKETING, PRODUCTION, AND SALE OF NONUNION COAL.  THUS
THE COMPANIES AGREED NOT TO LEASE COAL LANDS TO NONUNION OPERATORS, AND
IN 1958 AGREED NOT TO SELL OR BUY COAL FROM SUCH COMPANIES.  THE
COMPANIES AND THE UNION JOINTLY AND SUCCESSFULLY APPROACHED THE
SECRETARY OF LABOR TO OBTAIN ESTABLISHMENT UNDER THE WALSH-HEALEY ACT,
AS AMENDED, 49 STAT. 2036, 41 U.S.C. SEC. 35 ET SEQ. (1958 ED.), OF A
MINIMUM WAGE FOR EMPLOYEES OF CONTRACTORS SELLING COAL TO THE TVA, SUCH
MINIMUM WAGE BEING MUCH HIGHER THAN IN OTHER INDUSTRIES AND MAKING IT
DIFFICULT FOR SMALL COMPANIES TO COMPETE IN THE TVA TERM CONTRACT
MARKET.  AT A LATER TIME, AT A MEETING ATTENDED BY BOTH UNION AND
COMPANY REPRESENTATIVES, THE TVA WAS URGED TO CURTAIL ITS SPOT MARKET
PURCHASES, A SUBSTANTIAL PORTION OF WHICH WERE EXEMPT FROM THE WALSH
HEALEY ORDER.  THEREAFTER FOUR OF THE LARGER COMPANIES WAGED A
DESTRUCTIVE AND COLLUSIVE PRICE-CUTTING CAMPAIGN IN THE TVA SPOT MARKET
FOR COAL, TWO OF THE COMPANIES, WEST KENTUCKY COAL CO. AND ITS
SUBSIDIARY NASHVILLE COAL CO., BEING THOSE IN WHICH THE UNION HAD LARGE
INVESTMENTS AND OVER WHICH IT WAS IN POSITION TO EXERCISE CONTROL. 

THE COMPLAINT SURVIVED MOTIONS TO DISMISS AND AFTER A FIVE-WEEK TRIAL
BEFORE A JURY, A VERDICT WAS RETURNED IN FAVOR OF PHILLIPS AND AGAINST
THE TRUSTEES AND THE UNION, THE DAMAGES AGAINST THE UNION BEING FIXED
IN THE AMOUNT OF $90,000, TO BE TREBLED UNDER 15 U.S.C. SEC. 15 (1958
ED.).  THE TRIAL COURT SET ASIDE THE VERDICT AGAINST THE TRUSTEES BUT
OVERRULED THE UNION'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
OR IN THE ALTERNATIVE FOR A NEW TRIAL.  THE COURT OF APPEALS AFFIRMED. 
325 F.2D 804.  IT RULED THAT THE UNION WAS NOT EXEMPT FROM LIABILITY
UNDER THE SHERMAN ACT ON THE FACTS OF THIS CASE, CONSIDERED THE
INSTRUCTIONS ADEQUATE AND FOUND THE EVIDENCE GENERALLY SUFFICIENT TO
SUPPORT THE VERDICT.  WE GRANTED CERTIORARI.  377 U.S. 929.  WE REVERSE
AND REMAND THE CASE FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

I. 

WE FIRST CONSIDER UMW'S CONTENTION THAT THE TRIAL COURT ERRED IN
DENYING ITS MOTION FOR A DIRECTED VERDICT AND FOR JUDGMENT
NOTWITHSTANDING THE VERDICT, SINCE A DETERMINATION IN UMW'S FAVOR ON
THIS ISSUE WOULD FINALLY RESOLVE THE CONTROVERSY.  THE QUESTION
PRESENTED BY THIS PHASE OF THE CASE IS WHETHER IN THE CIRCUMSTANCES OF
THIS CASE THE UNION IS EXEMPT FROM LIABILITY UNDER THE ANTITRUST LAWS. 
WE THINK THE ANSWER IS CLEARLY IN THE NEGATIVE AND THAT THE UNION'S
MOTIONS WERE CORRECTLY DENIED. 

THE ANTITRUST LAWS DO NOT BAR THE EXISTENCE AND OPERATION OF LABOR
UNIONS AS SUCH.  MOREOVER, SEC. 20 OF THE CLAYTON ACT, 38 STAT. 738,
AND SEC. 4 OF THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, PERMIT A UNION,
ACTING ALONE, TO ENGAGE IN THE CONDUCT THEREIN SPECIFIED WITHOUT
VIOLATING THE SHERMAN ACT.  UNITED STATES V. HUTCHESON, 312 U.S. 219;
UNITED STATES V. INTERNATIONAL HOD CARRIERS COUNCIL, 313 U.S. 539,
AFFIRMING PER CURIAM, 37 F. SUPP. 191 (D.C.N.D. ILL. 1941); UNITED
STATES V. AMERICAN FEDERATION OF MUSICIANS, 318 U.S. 741, AFFIRMING PER
CURIAM, 47 F. SUPP. 304 (D.C.N.D. ILL. 1942). 

BUT NEITHER SEC. 20 NOR SEC. 4 EXPRESSLY DEALS WITH ARRANGEMENTS OR
AGREEMENTS BETWEEN UNIONS AND EMPLOYERS.  NEITHER SECTION TELLS US
WHETHER ANY OR ALL SUCH ARRANGEMENTS OR AGREEMENTS ARE BARRED OR
PERMITTED BY THE ANTITRUST LAWS.  THUS HUTCHESON ITSELF STATED: 

"SO LONG AS A UNION ACTS IN ITS SELF-INTEREST AND DOES NOT COMBINE
WITH NON-LABOR GROUPS, THE LICIT AND THE ILLICIT UNDER SEC. 20 ARE NOT
TO BE DISTINGUISHED BY ANY JUDGMENT REGARDING THE WISDOM OR UNWISDOM,
THE RIGHTNESS OR WRONGNESS, THE SELFISHNESS OR UNSELFISHNESS OF THE END
OF WHICH THE PARTICULAR UNION ACTIVITIES ARE THE MEANS."  312 U.S., AT
232. 

AND IN ALLEN BRADLEY CO. V. UNION, 325 U.S. 797, THIS COURT MADE
EXPLICIT WHAT HAD BEEN MERELY A QUALIFYING EXPRESSION IN HUTCHESON AND
HELD THAT "WHEN THE UNIONS PARTICIPATED WITH A COMBINATION OF BUSINESS
MEN WHO HAD COMPLETE POWER TO ELIMINATE ALL COMPETITION AMONG
THEMSELVES AND TO PREVENT ALL COMPETITION FROM OTHERS, A SITUATION WAS
CREATED NOT INCLUDED WITHIN THE EXEMPTIONS OF THE CLAYTON AND NORRIS
LAGUARDIA ACTS."  ID., AT 809.  SEE ALSO BROTHERHOOD OF CARPENTERS V.
UNITED STATES, 330 U.S. 395, 398-400; UNITED STATES V. EMPLOYING
PLASTERERS ASSN., 347 U.S. 186, 190.  SUBSEQUENT CASES HAVE APPLIED THE
ALLEN BRADLEY DOCTRINE TO SUCH COMBINATIONS WITHOUT REGARD TO WHETHER
THEY FOUND EXPRESSION IN A COLLECTIVE BARGAINING AGREEMENT, BROTHERHOOD
OF CARPENTERS V. UNITED STATES, SUPRA; SEE TEAMSTERS UNION V. OLIVER,
358 U.S. 283, 296, AND EVEN THROUGH THE MECHANISM FOR EFFECTUATING THE
PURPOSE OF THE COMBINATION WAS AN AGREEMENT ON WAGES, SEE ADAMS DAIRY
CO. V. ST. LOUIS DAIRY CO., 260 F.2D 46 (C.A. 8TH CIR. 1958), OR ON
HOURS OF WORK, PHILADELPHIA RECORD CO. V. MANUFACTURING PHOTO-ENGRAVERS
ASSN., 155 F.2D 799 (C.A. 3D CIR. 1946). 

IF THE UMW IN THIS CASE, IN ORDER TO PROTECT ITS WAGE SCALE BY
MAINTAINING EMPLOYER INCOME, HAD PRESENTED A SET OF PRICES AT WHICH THE
MINE OPERATORS WOULD BE REQUIRED TO SELL THEIR COAL, THE UNION AND THE
EMPLOYERS WHO HAPPENED TO AGREE COULD NOT SUCCESSFULLY DEFEND THIS
CONTRACT PROVISION IF IT WERE CHALLENGED UNDER THE ANTITRUST LAWS BY
THE UNITED STATES OR BY SOME PARTY INJURED BY THE ARRANGEMENT.  CF.
ALLEN BRADLEY CO. V. UNION, 325 U.S. 797; UNITED STATES V. BORDEN CO.,
308 U.S. 188, 203-205; LUMBER PRODS.  ASSN.  V. UNITED STATES, 144 F.2D
546, 548 (C.A. 9TH CIR. 1944), AFF'D ON THIS ISSUE SUB NOM. BROTHERHOOD
OF CARPENTERS V. UNITED STATES, 330 U.S. 395, 398-400; LAS VEGAS
MERCHANT PLUMBERS ASSN. V. UNITED STATES, 210 F.2D 732 (C.A. 9TH CIR.
1954), CERT. DENIED, 348 U.S. 817; LOCAL 175, IBEW V. UNITED STATES,
219 F.2D 431 (C.A. 6TH CIR. 1955), CERT. DENIED, 349 U.S. 917.  IN SUCH
A CASE, THE RESTRAINT ON THE PRODUCT MARKET IS DIRECT AND IMMEDIATE, IS
OF THE TYPE CHARACTERISTICALLY DEEMED UNREASONABLE UNDER THE SHERMAN
ACT AND THE UNION GETS FROM THE PROMISE NOTHING MORE CONCRETE THAN A
HOPE FOR BETTER WAGES TO COME. 

LIKEWISE, IF AS IS ALLEGED IN THIS CASE, THE UNION BECAME A PARTY TO
A COLLUSIVE BIDDING ARRANGEMENT DESIGNED TO DRIVE PHILLIPS AND OTHERS
FROM THE TVA SPOT MARKET, WE THINK ANY CLAIM TO EXEMPTION FROM
ANTITRUST LIABILITY WOULD BE FRIVOLOUS AT BEST.  FOR THIS REASON ALONE
THE MOTIONS OF THE UNIONS WERE PROPERLY DENIED. 

A MAJOR PART OF PHILLIPS' CASE, HOWEVER, WAS THAT THE UNION ENTERED
INTO A CONSPIRACY WITH THE LARGE OPERATORS TO IMPOSE THE AGREED-UPON
WAGE AND ROYALTY SCALES UPON THE SMALLER, NONUNION OPERATORS,
REGARDLESS OF THEIR ABILITY TO PAY AND REGARDLESS OF WHETHER OR NOT THE
UNION REPRESENTED THE EMPLOYEES OF THESE COMPANIES, ALL FOR THE PURPOSE
OF ELIMINATING THEM FROM THE INDUSTRY, LIMITING PRODUCTION AND PRE
EMPTING THE MARKET FOR THE LARGE, UNIONIZED OPERATORS.  THE UMW URGES
THAT SINCE SUCH AN AGREEMENT CONCERNED WAGE STANDARDS, IT IS EXEMPT
FROM THE ANTITRUST LAWS. 

IT IS TRUE THAT WAGES LIE AT THE VERY HEART OF THOSE SUBJECTS ABOUT
WHICH EMPLOYERS AND UNIONS MUST BARGAIN AND THE LAW CONTEMPLATES
AGREEMENTS ON WAGES NOT ONLY BETWEEN INDIVIDUAL EMPLOYERS AND A UNION
BUT AGREEMENTS BETWEEN THE UNION AND EMPLOYERS IN A MULTI-EMPLOYER
BARGAINING UNIT.  LABOR BOARD V. TRUCK DRIVERS UNION, 353 U.S. 87, 94
96.  THE UNION BENEFIT FROM THE WAGE SCALE AGREED UPON IS DIRECT AND
CONCRETE AND THE EFFECT ON THE PRODUCT MARKET, THOUGH CLEARLY PRESENT,
RESULTS FROM THE ELIMINATION OF COMPETITION BASED ON WAGES AMONG THE
EMPLOYERS IN THE BARGAINING UNIT, WHICH IS NOT THE KIND OF RESTRAINT
CONGRESS INTENDED THE SHERMAN ACT TO PROSCRIBE.  APEX HOSIERY CO. V.
LEADER, 310 U.S. 469, 503-504; SEE ADAMS DAIRY CO. V. ST. LOUIS DAIRY
CO., 260 F.2D 46 (C.A. 8TH CIR. 1958).  WE THINK IT BEYOND QUESTION
THAT A UNION MAY CONCLUDE A WAGE-AGREEMENT WITH THE MULTI-EMPLOYER
BARGAINING UNIT WITHOUT VIOLATING THE ANTITRUST LAWS AND THAT IT MAY AS
A MATTER OF ITS OWN POLICY, AND NOT BY AGREEMENT WITH ALL OR PART OF
THE EMPLOYERS OF THAT UNIT, SEEK THE SAME WAGES FROM OTHER EMPLOYERS. 

THIS IS NOT TO SAY THAT AN AGREEMENT RESULTING FROM UNION-EMPLOYER
NEGOTIATIONS IS AUTOMATICALLY EXEMPT FROM SHERMAN ACT SCRUTINY SIMPLY
BECAUSE THE NEGOTIATIONS INVOLVE A COMPULSORY SUBJECT OF BARGAINING,
REGARDLESS OF THE SUBJECT OR THE FORM AND CONTENT OF THE AGREEMENT. 
UNQUESTIONABLY THE BOARD'S DEMARCATION OF THE BOUNDS OF THE DUTY TO
BARGAIN HAS GREAT RELEVANCE TO ANY CONSIDERATION OF THE SWEEP OF
LABOR'S ANTITRUST IMMUNITY, FOR WE ARE CONCERNED HERE WITH HARMONIZING
THE SHERMAN ACT WITH THE NATIONAL POLICY EXPRESSED IN THE NATIONAL
LABOR RELATIONS ACT OF PROMOTING "THE PEACEFUL SETTLEMENT OF INDUSTRIAL
DISPUTES BY SUBJECTING LABOR-MANAGEMENT CONTROVERSIES TO THE MEDIATORY
INFLUENCE OF NEGOTIATION," FIBREBOARD PAPER PRODS.  CORP.  V. LABOR
BOARD, 379 U.S. 203, 211.  BUT THERE ARE LIMITS TO WHAT A UNION OR AN
EMPLOYER MAY OFFER OR EXTRACT IN THE NAME OF WAGES, AND BECAUSE THEY
MUST BARGAIN DOES NOT MEAN THAT THE AGREEMENT REACHED MAY DISREGARD
OTHER LAWS.  TEAMSTERS UNION V. OLIVER, 358 U.S. 283, 296; BROTHERHOOD
OF CARPENTERS V. UNITED STATES, 330 U.S. 395, 399-400. 

WE HAVE SAID THAT A UNION MAY MAKE WAGE AGREEMENTS WITH A MULTI
EMPLOYER BARGAINING UNIT AND MAY IN PURSUANCE OF ITS OWN UNION
INTERESTS SEEK TO OBTAIN THE SAME TERMS FROM OTHER EMPLOYERS.  NO CASE
UNDER THE ANTITRUST LAWS COULD BE MADE OUT ON EVIDENCE LIMITED TO SUCH
UNION BEHAVIOR.  (FN2)  BUT WE THINK A UNION FORFEITS ITS EXEMPTION
FROM THE ANTITRUST LAWS WHEN IT IS CLEARLY SHOWN THAT IT HAS AGREED
WITH ONE SET OF EMPLOYERS TO IMPOSE A CERTAIN WAGE SCALE ON OTHER
BARGAINING UNITS.  ONE GROUP OF EMPLOYERS MAY NOT CONSPIRE TO ELIMINATE
COMPETITORS FROM THE INDUSTRY AND THE UNION IS LIABLE WITH THE
EMPLOYERS IF IT BECOMES A PARTY TO THE CONSPIRACY.  THIS IS TRUE EVEN
THOUGH THE UNION'S PART IN THE SCHEME IS AN UNDERTAKING TO SECURE THE
SAME WAGES, HOURS OR OTHER CONDITIONS OF EMPLOYMENT FROM THE REMAINING
EMPLOYERS IN THE INDUSTRY. 

WE DO NOT FIND ANYTHING IN THE NATIONAL LABOR POLICY THAT CONFLICTS
WITH THIS CONCLUSION.  THIS COURT HAS RECOGNIZED THAT A LEGITIMATE AIM
OF ANY NATIONAL LABOR ORGANIZATION IS TO OBTAIN UNIFORMITY OF LABOR
STANDARDS AND THAT A CONSEQUENCE OF SUCH UNION ACTIVITY MAY BE TO
ELIMINATE COMPETITION BASED ON DIFFERENCES IN SUCH STANDARDS.  APEX
HOSIERY CO. V. LEADER, 310 U.S. 469, 503.  BUT THERE IS NOTHING IN THE
LABOR POLICY INDICATING THAT THE UNION AND THE EMPLOYERS IN ONE
BARGAINING UNIT ARE FREE TO BARGAIN ABOUT THE WAGES, HOURS AND WORKING
CONDITIONS OF OTHER BARGAINING UNITS OR TO ATTEMPT TO SETTLE THESE
MATTERS FOR THE ENTIRE INDUSTRY.  ON THE CONTRARY, THE DUTY TO BARGAIN
UNIT BY UNIT LEADS TO A QUITE DIFFERENT CONCLUSION.  THE UNION'S
OBLIGATION TO ITS MEMBERS WOULD SEEM BEST SERVED IF THE UNION RETAINED
THE ABILITY TO RESPOND TO EACH BARGAINING SITUATION AS THE INDIVIDUAL
CIRCUMSTANCES MIGHT WARRANT, WITHOUT BEING STRAIT-JACKETED BY SOME
PRIOR AGREEMENT WITH THE FAVORED EMPLOYERS.    SO FAR AS THE EMPLOYER
IS CONCERNED IT HAS LONG BEEN THE BOARD'S VIEW THAT AN EMPLOYER MAY NOT
CONDITION THE SIGNING OF A COLLECTIVE BARGAINING AGREEMENT ON THE
UNION'S ORGANIZATION OF A MAJORITY OF THE INDUSTRY.  AMERICAN RANGE
LINES, INC., 13 N.L.R.B. 139, 147 (1939); SAMUEL YOULIN, 22 N.L.R.B.
879, 885 (1940); NEWTON CHEVROLET, INC., 37 N.L.R.B. 334, 341 (1941);
SEE LABOR BOARD V. GEORGE P. PILLING & SON CO., 119 F.2D 32, 38 (C.A.
3D CIR. 1941).  IN SUCH CASES THE OBVIOUS INTEREST OF THE EMPLOYER IS
TO ENSURE THAT ACCEPTANCE OF THE UNION'S WAGE DEMANDS WILL NOT
ADVERSELY AFFECT HIS COMPETITIVE POSITION.  IN AMERICAN RANGE LINES,
INC., SUPRA, THE BOARD REJECTED THAT EMPLOYER INTEREST AS A
JUSTIFICATION FOR THE DEMAND.  "AN EMPLOYER CANNOT LAWFULLY DENY HIS
EMPLOYEES THE RIGHT TO BARGAIN COLLECTIVELY THROUGH THEIR DESIGNATED
REPRESENTATIVE IN AN APPROPRIATE UNIT BECAUSE HE ENVISIONS COMPETITIVE
DISADVANTAGES ACCRUING FROM SUCH BARGAINING."  13 N.L.R.B., AT 147. 
SUCH AN EMPLOYER CONDITION, IF UPHELD, WOULD CLEARLY REDUCE THE EXTENT
OF COLLECTIVE BARGAINING.  THUS, IN NEWTON CHEVROLET, INC., SUPRA,
WHERE IT WAS HELD A REFUSAL TO BARGAIN FOR THE EMPLOYER TO INSIST ON A
PROVISION THAT THE AGREED CONTRACT TERMS WOULD NOT BECOME EFFECTIVE
UNTIL FIVE COMPETITORS HAD SIGNED SUBSTANTIALLY SIMILAR CONTRACTS, THE
BOARD STATED THAT "THERE IS NOTHING IN THE ACT TO JUSTIFY THE
IMPOSITION OF A DUTY UPON AN EXCLUSIVE BARGAINING REPRESENTATIVE TO
SECURE AN AGREEMENT FROM A MAJORITY OF AN EMPLOYER'S COMPETITORS AS A
CONDITION PRECEDENT TO THE NEGOTIATION OF AN AGREEMENT WITH THE
EMPLOYER.  TO PERMIT INDIVIDUAL EMPLOYERS TO REFUSE TO BARGAIN
COLLECTIVELY UNTIL SOME OR ALL OF THEIR COMPETITORS HAD DONE SO CLEARLY
WOULD LEAD TO FRUSTRATION OF THE FUNDAMENTAL PURPOSE OF THE ACT TO
ENCOURAGE THE PRACTICE OF COLLECTIVE BARGAINING."  37 N.L.R.B., AT
341.  PERMITTING INSISTENCE ON AN AGREEMENT BY THE UNION TO ATTEMPT TO
IMPOSE A SIMILAR CONTRACT ON OTHER EMPLOYERS WOULD LIKEWISE SEEM TO
IMPOSE A RESTRAINING INFLUENCE ON THE EXTENT OF COLLECTIVE BARGAINING,
FOR THE UNION COULD AVOID AN IMPASSE ONLY BY SURRENDERING ITS FREEDOM
TO ACT IN ITS OWN INTEREST VIS-A-VIS OTHER EMPLOYERS, SOMETHING IT WILL
BE UNWILLING TO DO IN MANY INSTANCES.  ONCE AGAIN, THE EMPLOYER'S
INTEREST IS A COMPETITIVE INTEREST RATHER THAN AN INTEREST IN
REGULATING ITS OWN LABOR RELATIONS, AND THE EFFECT ON THE UNION OF SUCH
AN AGREEMENT WOULD BE TO LIMIT THE FREE EXERCISE OF THE EMPLOYEES'
RIGHT TO ENGAGE IN CONCERTED ACTIVITIES ACCORDING TO THEIR OWN VIEWS OF
THEIR SELF-INTEREST.  IN SUM, WE CANNOT CONCLUDE THAT THE NATIONAL
LABOR POLICY PROVIDES ANY SUPPORT FOR SUCH AGREEMENTS. 

ON THE OTHER HAND, THE POLICY OF THE ANTITRUST LAWS IS CLEARLY SET
AGAINST EMPLOYER-UNION AGREEMENTS SEEKING TO PRESCRIBE LABOR STANDARDS
OUTSIDE THE BARGAINING UNIT.  ONE COULD HARDLY CONTEND, FOR EXAMPLE,
THAT ONE GROUP OF EMPLOYERS COULD LAWFULLY DEMAND THAT THE UNION IMPOSE
ON OTHER EMPLOYERS WAGES THAT WERE SIGNIFICANTLY HIGHER THAN THOSE PAID
BY THE REQUESTING EMPLOYERS, OR A SYSTEM OF COMPUTING WAGES THAT,
BECAUSE OF DIFFERENCES IN METHODS OF PRODUCTION, WOULD BE MORE COSTLY
TO ONE SET OF EMPLOYERS THAN TO ANOTHER.  THE ANTICOMPETITIVE POTENTIAL
OF SUCH A COMBINATION IS OBVIOUS, BUT IS LITTLE MORE SEVERE THAN WHAT
IS ALLEGED TO HAVE BEEN THE PURPOSE AND EFFECT OF THE CONSPIRACY IN
THIS CASE TO ESTABLISH WAGES AT A LEVEL THAT MARGINAL PRODUCERS COULD
NOT PAY SO THAT THEY WOULD BE DRIVEN FROM THE INDUSTRY.  AND IF THE
CONSPIRACY PRESENTLY UNDER ATTACK WERE DECLARED EXEMPT IT WOULD HARDLY
BE POSSIBLE TO DENY EXEMPTION TO SUCH AVOWEDLY DISCRIMINATORY SCHEMES. 

FROM THE VIEWPOINT OF ANTITRUST POLICY, MOREOVER, ALL SUCH AGREEMENTS
BETWEEN A GROUP OF EMPLOYERS AND A UNION THAT THE UNION WILL SEEK
SPECIFIED LABOR STANDARDS OUTSIDE THE BARGAINING UNIT SUFFER FROM A
MORE BASIC DEFECT, WITHOUT REGARD TO PREDATORY INTENTION OR EFFECT IN
THE PARTICULAR CASE.  FOR THE SALIENT CHARACTERISTIC OF SUCH AGREEMENTS
IS THAT THE UNION SURRENDERS ITS FREEDOM OF ACTION WITH RESPECT TO ITS
BARGAINING POLICY.  PRIOR TO THE AGREEMENT THE UNION MIGHT SEEK UNIFORM
STANDARDS IN ITS OWN SELF-INTEREST BUT WOULD BE REQUIRED TO ASSESS IN
EACH CASE THE PROBABLE COSTS AND GAINS OF A STRIKE OR OTHER COLLECTIVE
ACTION TO THAT END AND THUS MIGHT CONCLUDE THAT THE OBJECTIVE OF
UNIFORM STANDARDS SHOULD TEMPORARILY GIVE WAY.  AFTER THE AGREEMENT THE
UNION'S INTEREST WOULD BE BOUND IN EACH CASE TO THAT OF THE FAVORED
EMPLOYER GROUP.  IT IS JUST SUCH RESTRAINTS UPON THE FREEDOM OF
ECONOMIC UNITS TO ACT ACCORDING TO THEIR OWN CHOICE AND DISCRETION THAT
RUN COUNTER TO ANTITRUST POLICY.  SEE, E.G., ASSOCIATED PRESS V. UNITED
STATES, 326 U.S. 1, 19; FASHION ORIGINATORS' GUILD V. FEDERAL TRADE
COMM'N, 312 U.S. 457, 465; ANDERSON V. SHIPOWNERS ASSN., 272 U.S. 359,
364-365. 

THUS THE RELEVANT LABOR AND ANTITRUST POLICIES COMPEL US TO CONCLUDE
THAT THE ALLEGED AGREEMENT BETWEEN UMW AND THE LARGE OPERATORS TO
SECURE UNIFORM LABOR STANDARDS THROUGHOUT THE INDUSTRY, IF PROVED, WAS
NOT EXEMPT FROM THE ANTITRUST LAWS. 

                                      II. 

THE UMW NEXT CONTENDS THAT THE TRIAL COURT ERRONEOUSLY DENIED ITS
MOTION FOR A NEW TRIAL BASED ON CLAIMED ERRORS IN THE ADMISSION OF
EVIDENCE. 

IN EASTERN R. CONF. V. NOERR MOTORS, 365 U.S. 127, THE COURT REJECTED
AN ATTEMPT TO BASE A SHERMAN ACT CONSPIRACY ON EVIDENCE CONSISTING
ENTIRELY OF ACTIVITIES OF COMPETITORS SEEKING TO INFLUENCE PUBLIC
OFFICIALS.  THE SHERMAN ACT, IT WAS HELD, WAS NOT INTENDED TO BAR
CONCERTED ACTION OF THIS KIND EVEN THOUGH THE RESULTING OFFICIAL ACTION
DAMAGED OTHER COMPETITORS AT WHOM THE CAMPAIGN WAS AIMED.  FURTHERMORE,
THE LEGALITY OF THE CONDUCT "WAS NOT AT ALL AFFECTED BY ANY
ANTICOMPETITIVE PURPOSE IT MAY HAVE HAD," ID., AT 140 - EVEN THOUGH THE
"SOLE PURPOSE IN SEEKING TO INFLUENCE THE PASSAGE AND ENFORCEMENT OF
LAWS WAS TO DESTROY THE TRUCKERS AS COMPETITORS FOR THE LONG-DISTANCE
FREIGHT BUSINESS," ID., AT 138.  NOTHING COULD BE CLEARER FROM THE
COURT'S OPINION THAN THAT ANTICOMPETITIVE PURPOSE DID NOT ILLEGALIZE
THE CONDUCT THERE INVOLVED.  WE AGREE WITH THE UMW THAT BOTH THE COURT
OF APPEALS AND THE TRIAL COURT FAILED TO TAKE PROPER ACCOUNT OF THE
NOERR CASE.  IN APPROVING THE INSTRUCTIONS OF THE TRIAL COURT WITH
REGARD TO THE APPROACHES OF THE UNION AND THE OPERATORS TO THE
SECRETARY OF LABOR AND TO THE TVA OFFICIALS, THE COURT OF APPEALS
CONSIDERED NOERR AS APPLYING ONLY TO CONDUCT "UNACCOMPANIED BY A
PURPOSE OR INTENT TO FURTHER A CONSPIRACY TO VIOLATE A STATUTE.  IT IS
THE ILLEGAL PURPOSE OR INTENT INHERENT IN THE CONDUCT WHICH VITIATES
THE CONDUCT WHICH WOULD OTHERWISE BE LEGAL."  325 F.2D, AT 817.  NOERR
SHIELDS FROM THE SHERMAN ACT A CONCERTED EFFORT TO INFLUENCE PUBLIC
OFFICIALS REGARDLESS OF INTENT OR PURPOSE.  THE COURT OF APPEALS,
HOWEVER, WOULD HOLD THE CONDUCT ILLEGAL DEPENDING UPON PROOF OF AN
ILLEGAL PURPOSE. 

THE INSTRUCTIONS OF THE TRIAL COURT TO THE JURY EXHIBIT A SIMILAR
INFIRMITY.  THE JURY WAS INSTRUCTED THAT THE APPROACH TO THE SECRETARY
OF LABOR WAS LEGAL UNLESS PART OF A CONSPIRACY TO DRIVE SMALL OPERATORS
OUT OF BUSINESS AND THAT THE APPROACH TO THE TVA WAS NOT A VIOLATION OF
THE ANTITRUST LAWS "UNLESS THE PARTIES SO URGED THE TVA TO MODIFY ITS
POLICIES IN BUYING COAL FOR THE PURPOSE OF DRIVING THE SMALL OPERATORS
OUT OF BUSINESS."  IF, THEREFORE, THE JURY DETERMINED THE REQUISITE
ANTICOMPETITIVE PURPOSE TO BE PRESENT, IT WAS FREE TO FIND AN ILLEGAL
CONSPIRACY BASED SOLELY ON THE WALSH-HEALEY AND TVA EPISODES, OR IN ANY
EVENT TO ATTRIBUTE ILLEGALITY TO THESE ACTS AS PART OF A GENERAL PLAN
TO ELIMINATE PHILLIPS AND OTHER OPERATORS SIMILARLY SITUATED.  NEITHER
FINDING, HOWEVER, IS PERMITTED BY NOERR FOR THE REASONS STATED IN THAT
CASE.  JOINT EFFORTS TO INFLUENCE PUBLIC OFFICIALS DO NOT VIOLATE THE
ANTITRUST LAWS EVEN THOUGH INTENDED TO ELIMINATE COMPETITION.  SUCH
CONDUCT IS NOT ILLEGAL, EITHER STANDING ALONE OR AS PART OF A BROADER
SCHEME ITSELF VIOLATIVE OF THE SHERMAN ACT.  THE JURY SHOULD HAVE BEEN
SO INSTRUCTED AND, GIVEN THE OBVIOUSLY TELLING NATURE OF THIS EVIDENCE,
WE CANNOT HOLD THIS LAPSE TO BE MERE HARMLESS ERROR.  (FN3) 

THERE IS ANOTHER REASON FOR REMANDING THIS CASE FOR FURTHER
PROCEEDINGS IN THE LOWER COURTS.  IT IS CLEAR UNDER NOERR THAT PHILLIPS
COULD NOT COLLECT ANY DAMAGES UNDER THE SHERMAN ACT FOR ANY INJURY
WHICH IT SUFFERED FROM THE ACTION OF THE SECRETARY OF LABOR.  THE
CONDUCT OF THE UNION AND THE OPERATORS DID NOT VIOLATE THE ACT, THE
ACTION TAKEN TO SET A MINIMUM WAGE FOR GOVERNMENT PURCHASES OF COAL WAS
THE ACT OF A PUBLIC OFFICIAL WHO IS NOT CLAIMED TO BE A CO-CONSPIRATOR,
AND THE JURY SHOULD HAVE BEEN INSTRUCTED, AS UMW REQUESTED, TO EXCLUDE
ANY DAMAGES WHICH PHILLIPS MAY HAVE SUFFERED AS A RESULT OF THE
SECRETARY'S WALSH-HEALEY DETERMINATIONS.  (FN4)  SEE ALSO AMERICAN
BANANA CO. V. UNITED FRUIT CO., 213 U.S. 347, 358; ANGLE V. CHICAGO,
ST. PAUL, MINNEAPOLIS & OMAHA R. CO., 151 U.S. 1, 16-21; OKEFENOKEE
RURAL ELEC.  MEM.  CORP. V. FLORIDA P.&L. CO., 214 F.2D 413, 418 (C.A.
5TH CIR. 1954).  THE TRIAL COURT, HOWEVER, ADMITTED EVIDENCE CONCERNING
THE WALSH-HEALEY EPISODES FOR "WHATEVER BEARING IT MAY HAVE ON THE
OVERALL PICTURE" AND TOLD THE JURY IN ITS FINAL INSTRUCTIONS TO INCLUDE
IN THE VERDICT ALL DAMAGES RESULTING DIRECTLY FROM ANY ACT WHICH WAS
FOUND TO BE PART OF THE CONSPIRACY.  THE EFFECT THIS MAY HAVE HAD ON
THE JURY IS REFLECTED BY THE STATEMENT OF THE COURT OF APPEALS THAT THE
JURY COULD REASONABLY CONCLUDE "THAT THE WAGE DETERMINATION FOR THE
COAL INDUSTRY UNDER THE WALSH-HEALEY ACT AND THE DUMPING OF WEST
KENTUCKY COAL ON THE TVA SPOT MARKET MATERIALLY AND ADVERSELY AFFECTED
THE OPERATIONS OF PHILLIPS IN THE IMPORTANT TVA MARKET  ...  ," 325
F.2D, AT 815, AND THAT "THIS MINIMUM WAGE DETERMINATION PREVENTED
PHILLIPS FROM BIDDING ON THE TVA TERM MARKET  ...  ," ID., AT 814. 
(FN5) 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE PARTIES STIPULATED THAT THE DAMAGES PERIOD WOULD INCLUDE THE
FOUR-YEAR LIMITATION PERIOD, 15 U.S.C. SEC. 15B (1958 ED.), PRECEDING
THE FILING OF PHILLIPS' CROSS CLAIM AND EXTEND UP TO DECEMBER 31, 1958,
THE DATE ON WHICH PHILLIPS TERMINATED ITS BUSINESS. 

FN2 UNILATERALLY, AND WITHOUT AGREEMENT WITH ANY EMPLOYER GROUP TO DO
SO, A UNION MAY ADOPT A UNIFORM WAGE POLICY AND SEEK VIGOROUSLY TO
IMPLEMENT IT EVEN THOUGH IT MAY SUSPECT THAT SOME EMPLOYERS CANNOT
EFFECTIVELY COMPETE IF THEY ARE REQUIRED TO PAY THE WAGE SCALE DEMANDED
BY THE UNION.  THE UNION NEED NOT GEAR ITS WAGE DEMANDS TO WAGES WHICH
THE WEAKEST UNITS IN THE INDUSTRY CAN AFFORD TO PAY.  SUCH UNION
CONDUCT IS NOT ALONE SUFFICIENT EVIDENCE TO MAINTAIN A UNION-EMPLOYER
CONSPIRACY CHARGE UNDER THE SHERMAN ACT.  THERE MUST BE ADDITIONAL
DIRECT OR INDIRECT EVIDENCE OF THE CONSPIRACY.  THERE WAS, OF COURSE,
OTHER EVIDENCE IN THIS CASE, BUT WE INDICATE NO OPINION AS TO ITS
SUFFICIENCY. 

FN3  IT WOULD OF COURSE STILL BE WITHIN THE PROVINCE OF THE TRIAL
JUDGE TO ADMIT THIS EVIDENCE, IF HE DEEMED IT PROBATIVE AND NOT UNDULY
PREJUDICIAL, UNDER THE "ESTABLISHED JUDICIAL RULE OF EVIDENCE THAT
TESTIMONY OF PRIOR OR SUBSEQUENT TRANSACTIONS, WHICH FOR SOME REASON
ARE BARRED FROM FORMING THE BASIS FOR A SUIT, MAY NEVERTHELESS BE
INTRODUCED IF IT TENDS REASONABLY TO SHOW THE PURPOSE AND CHARACTER OF
THE PARTICULAR TRANSACTIONS UNDER SCRUTINY.  STANDARD OIL CO. V. UNITED
STATES, 221 U.S. 1, 46-47; UNITED STATES V. READING CO., 253 U.S. 26,
43-44."  FEDERAL TRADE COMM'N V. CEMENT INSTITUTE, 333 U.S. 683, 705;
SEE ALSO HEIKE V. UNITED STATES, 227 U.S. 131, 145; AMERICAN MEDICAL
ASSN. V. UNITED STATES, 76 U.S. APP. D.C. 70, 87-89, 130 F.2D 233, 250
252 (1942), AFF'D, 317 U.S. 519 (CERTIORARI LIMITED TO OTHER ISSUES). 

FN4  BY CONTRAST, IN CONTINENTAL ORE CO. V. UNION CARBIDE & CARBON
CORP., 370 U.S. 690, WE HELD THAT THE ACTS OF A WARTIME PURCHASING
AGENT APPOINTED BY THE CANADIAN GOVERNMENT COULD BE PROVED AS PART OF
THE CONSPIRACY AND AS AN ELEMENT IN COMPUTING DAMAGES.  THE PURCHASING
AGENT, HOWEVER, WAS NOT A PUBLIC OFFICIAL BUT THE WHOLLY OWNED
SUBSIDIARY OF AN AMERICAN CORPORATION ALLEGED TO BE A PRINCIPAL ACTOR
IN THE CONSPIRACY.  THE ACTS COMPLAINED OF HAD BEEN PERFORMED AT THE
DIRECTION OF THE PURCHASING AGENT'S AMERICAN PARENT AND THERE WAS "NO
INDICATION THAT THE CONTROLLER OR ANY OTHER OFFICIAL WITHIN THE
STRUCTURE OF THE CANADIAN GOVERNMENT APPROVED OR WOULD HAVE APPROVED OF
JOINT EFFORTS TO MONOPOLIZE THE PRODUCTION AND SALE OF VANADIUM OR
DIRECTED THAT PURCHASES FROM THE PLAINTIFF BE STOPPED."  370 U.S., AT
706.  THAT CASE IS WHOLLY DISSIMILAR TO BOTH NOERR AND THE PRESENT
CASE. 

FN5  THIS LATTER CONCLUSION REGARDING THE TERM MARKET WOULD SEEM
DOUBLY ERRONEOUS AS PHILLIPS HAD VIRTUALLY CONCEDED, IN THE COURSE OF
OFFERING EVIDENCE RESPECTING BIDS OF THE ALLEGED CONSPIRATORS ON THE
TERM MARKET, THAT IT WAS CLAIMING NO DAMAGES FROM ITS EXCLUSION FROM
THE TERM MARKET, A MARKET IT NEVER HAD ANY IMMEDIATE PROSPECT OF
ENTERING.  THE TRIAL COURT RULED THAT THE PROFFERED TESTIMONY WAS
INADMISSIBLE ON THE DAMAGES PHASE OF THE CASE. 

FOR OPINION OF MR. JUSTICE GOLDBERG DISSENTING FROM THE OPINION BUT
CONCURRING IN THE REVERSAL, SEE POST, P. 697.    MR. JUSTICE DOUGLAS,
WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE CLARK AGREE, CONCURRING. 

AS WE READ THE OPINION OF THE COURT, IT REAFFIRMS THE PRINCIPLES OF
ALLEN BRADLEY CO. V. UNION, 325 U.S. 797, AND TELLS THE TRIAL JUDGE: 

FIRST.  ON THE NEW TRIAL THE JURY SHOULD BE INSTRUCTED THAT IF THERE
WERE AN INDUSTRY-WIDE COLLECTIVE BARGAINING AGREEMENT WHEREBY EMPLOYERS
AND THE UNION AGREED ON A WAGE SCALE THAT EXCEEDED THE FINANCIAL
ABILITY OF SOME OPERATORS TO PAY AND THAT IF IT WAS MADE FOR THE
PURPOSE OF FORCING SOME EMPLOYERS OUT OF BUSINESS, THE UNION AS WELL AS
THE EMPLOYERS WHO PARTICIPATED IN THE ARRANGEMENT WITH THE UNION SHOULD
BE FOUND TO HAVE VIOLATED THE ANTITRUST LAWS. 

SECOND.  AN INDUSTRY-WIDE AGREEMENT CONTAINING THOSE FEATURES IS
PRIMA FACIE EVIDENCE OF A VIOLATION.* 

*"IT IS ELEMENTARY THAT AN UNLAWFUL CONSPIRACY MAY BE AND OFTEN IS
FORMED WITHOUT SIMULTANEOUS ACTION OR AGREEMENT ON THE PART OF THE
CONSPIRATORS.  SCHENCK V. UNITED STATES, 253 F. 212, 213, AFF'D, 249
U.S. 47; LEVEY V. UNITED STATES, 92 F.2D 688, 691.  ACCEPTANCE BY
COMPETITORS, WITHOUT PREVIOUS AGREEMENT, OF AN INVITATION TO
PARTICIPATE IN A PLAN, THE NECESSARY CONSEQUENCE OF WHICH, IF CARRIED
OUT, IS RESTRAINT OF INTERSTATE COMMERCE, IS SUFFICIENT TO ESTABLISH AN
UNLAWFUL CONSPIRACY UNDER THE SHERMAN ACT.  EASTERN STATES LUMBER ASSN.
V. UNITED STATES, 234 U.S. 600; LAWLOR V. LOEWE, 235 U.S. 522, 534;
AMERICAN COLUMN CO. V. UNITED STATES, 257 U.S. 377; UNITED STATES V.
AMERICAN LINSEED OIL CO., 262 U.S. 371."  INTERSTATE CIRCUIT V. UNITED
STATES, 306 U.S. 208, 227. 

IN ALLEN BRADLEY CO. V. UNION, SUPRA, THE UNION WAS PROMOTING CLOSED
SHOPS IN THE NEW YORK CITY AREA.  IT GOT CONTRACTORS TO PURCHASE
EQUIPMENT ONLY FROM LOCAL MANUFACTURERS WHO HAD CLOSED-SHOP AGREEMENTS
WITH THE UNION; AND IT GOT MANUFACTURERS TO CONFINE THEIR NEW YORK CITY
SALES TO CONTRACTORS EMPLOYING THE UNION'S MEMBERS.  AGENCIES WERE SET
UP TO BOYCOTT RECALCITRANT LOCAL CONTRACTORS AND MANUFACTURERS AND BAR
FROM THE AREA EQUIPMENT MANUFACTURED OUTSIDE ITS BOUNDARIES.  AS WE
SAID: 

"THE COMBINATION AMONG THE THREE GROUPS, UNION, CONTRACTORS, AND
MANUFACTURERS, BECAME HIGHLY SUCCESSFUL FROM THE STANDPOINT OF ALL OF
THEM.  THE BUSINESS OF NEW YORK CITY MANUFACTURERS HAD A PHENOMENAL
GROWTH, THEREBY MULTIPLYING THE JOBS AVAILABLE FOR THE LOCAL'S
MEMBERS.  WAGES WENT UP, HOURS WERE SHORTENED, AND THE NEW YORK
ELECTRICAL EQUIPMENT PRICES SOARED, TO THE DECIDED FINANCIAL PROFIT OF
LOCAL CONTRACTORS AND MANUFACTURERS."  325 U.S., AT 800. 

I REPEAT WHAT WE SAID IN ALLEN BRADLEY CO. V. UNION, SUPRA, AT 811: 

"THE DIFFICULTY OF DRAWING LEGISLATION PRIMARILY AIMED AT TRUSTS AND
MONOPOLIES SO THAT IT COULD ALSO BE APPLIED TO LABOR ORGANIZATIONS
WITHOUT IMPAIRING THE COLLECTIVE BARGAINING AND RELATED RIGHTS OF THOSE
ORGANIZATIONS HAS BEEN EMPHASIZED BOTH BY CONGRESSIONAL AND JUDICIAL
ATTEMPTS TO DRAW LINES BETWEEN PERMISSIBLE AND PROHIBITED UNION
ACTIVITIES.  THERE IS, HOWEVER, ONE LINE WHICH WE CAN DRAW WITH
ASSURANCE THAT WE FOLLOW THE CONGRESSIONAL PURPOSE.  WE KNOW THAT
CONGRESS FEARED THE CONCENTRATED POWER OF BUSINESS ORGANIZATIONS TO
DOMINATE MARKETS AND PRICES.  IT INTENDED TO OUTLAW BUSINESS
MONOPOLIES.  A BUSINESS MONOPOLY IS NO LESS SUCH BECAUSE A UNION
PARTICIPATES, AND SUCH PARTICIPATION IS A VIOLATION OF THE SHERMAN
ACT." 

CONGRESS CAN DESIGN AN OLIGOPOLY FOR OUR SOCIETY, IF IT CHOOSES.  BUT
BUSINESS ALONE CANNOT DO SO AS LONG AS THE ANTITRUST LAWS ARE
ENFORCED.  NOR SHOULD BUSINESS AND LABOR WORKING HAND-IN-HAND BE
ALLOWED TO MAKE THAT BASIC CHANGE IN THE DESIGN OF OUR SO-CALLED FREE
ENTERPRISE SYSTEM.  IF THE ALLEGATIONS IN THIS CASE ARE TO BE BELIEVED,
ORGANIZED LABOR JOINED HANDS WITH ORGANIZED BUSINESS TO DRIVE MARGINAL
OPERATORS OUT OF EXISTENCE.  ACCORDING TO THOSE ALLEGATIONS THE UNION
USED ITS CONTROL OVER WEST KENTUCKY COAL CO. AND NASHVILLE COAL CO. TO
DUMP COAL AT SUCH LOW PRICES THAT RESPONDENTS, WHO WERE SMALL
OPERATORS, HAD TO ABANDON THEIR BUSINESS.  ACCORDING TO THOSE
ALLEGATIONS THERE WAS A BOYCOTT BY THE UNION AND THE MAJOR COMPANIES
AGAINST SMALL COMPANIES WHO NEEDED MAJOR COMPANIES' COAL LAND ON WHICH
TO OPERATE.  ACCORDING TO THOSE ALLEGATIONS, HIGH WAGE AND WELFARE
TERMS OF EMPLOYMENT WERE IMPOSED ON THE SMALL, MARGINAL COMPANIES BY
THE UNION AND THE MAJOR COMPANIES WITH THE KNOWLEDGE AND INTENT THAT
THE SMALL ONES WOULD BE DRIVEN OUT OF BUSINESS. 

THE ONLY ARCHITECT OF OUR ECONOMIC SYSTEM IS CONGRESS.  WE ARE RIGHT
IN ADHERING TO ITS PHILOSOPHY OF THE FREE ENTERPRISE SYSTEM AS
EXPRESSED IN THE ANTITRUST LAWS AND AS ENFORCED BY ALLEN BRADLEY CO. V.
UNION, SUPRA, UNTIL THE CONGRESS DELEGATES TO BIG BUSINESS AND BIG
LABOR THE POWER TO REMOLD OUR ECONOMY IN THE MANNER CHARGED HERE. 
..END :








LOCAL 189, AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA,
AFL-CIO V. JEWEL TEA CO., INC. 381 U.S. 676 


NO. 240.  ARGUED JANUARY 27-28, 1965.  - DECIDED JUNE 7, 1965.  - 331
F.2D 547, REVERSED. 


RESPONDENT BROUGHT THIS ACTION UNDER SECS. 1 AND 2 OF THE SHERMAN ACT
AGAINST PETITIONERS, SEVEN LOCAL UNIONS, ASSOCIATED FOOD RETAILERS OF
GREATER CHICAGO, INC. (ASSOCIATED), AN ASSOCIATION OF RETAIL FOOD
STORES, AND ASSOCIATED'S SECRETARY AND TREASURER, ALLEGING THAT
PETITIONERS AND ASSOCIATED HAD CONSPIRED TO RESTRAIN COMPETITION IN
RETAIL MEAT MARKETS IN THE CHICAGO AREA BY LIMITING THE MARKETING HOURS
FOR THE SALE OF FRESH MEAT THROUGH A CLAUSE IN THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN ASSOCIATED AND PETITIONERS AND BETWEEN
RESPONDENT AND PETITIONERS.  THE DISTRICT COURT, AFTER TRIAL, HELD THAT
THERE WAS NO EVIDENCE IN THE RECORD TO SUPPORT A FINDING OF A
CONSPIRACY TO FORCE THE RESTRICTIVE PROVISION ON RESPONDENT, THAT THE
MARKETING-HOURS LIMITATION WAS IMPOSED BY THE UNIONS TO SERVE THEIR OWN
INTERESTS RESPECTING CONDITIONS OF EMPLOYMENT, AND THAT SUCH ACTION WAS
CLEARLY WITHIN THE LABOR EXEMPTION OF THE SHERMAN ACT.  THE COURT OF
APPEALS REVERSED THE DISMISSAL OF THE COMPLAINT AS TO THE UNIONS AND
ASSOCIATED, AND WITHOUT UPSETTING THE DISTRICT COURT'S FINDING THAT,
APART FROM THE CONTRACTUAL PROVISION ITSELF, THERE WAS NO EVIDENCE OF
CONSPIRACY, CONCLUDED THAT A CONSPIRACY IN RESTRAINT OF TRADE WAS
SHOWN.  IT HELD THAT THE EMPLOYER-UNION CONTRACT CONCERNING WORKING
HOURS IS UNLAWFUL, AS THE ESTABLISHMENT OF THE HOURS OF WORK IS A
FUNCTION OF THE EMPLOYER.  HELD:  THE JUDGMENT IS REVERSED.  PP. 679
735. 

MR. JUSTICE WHITE, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN, CONCLUDED THAT: 

1.  THIS CONTROVERSY INVOLVING WHETHER A PROPOSED BARGAINING SUBJECT
IS A TERM OR CONDITION OF EMPLOYMENT IS NOT WITHIN THE EXCLUSIVE
PRIMARY JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD.  PP. 684
688. 

(A)  COURTS HAVE HAD EXPERIENCE IN CLASSIFYING BARGAINING SUBJECTS AS
TERMS OR CONDITIONS OF EMPLOYMENT, AS UNDER THE NORRIS-LAGUARDIA ACT. 
P. 686. 

(B)  THE PRIMARY-JURISDICTION DOCTRINE DOES NOT REQUIRE RESORT TO AN
ADMINISTRATIVE PROCEEDING WHEN THE CASE MUST EVENTUALLY BE DECIDED ON A
CONTROLLING LEGAL ISSUE UNRELATED TO THE ADMINISTRATIVE DETERMINATION. 
P. 686. 

(C)  THERE IS NO PROCEDURE AVAILABLE IN THIS CASE FOR OBTAINING A
DETERMINATION BY THE LABOR BOARD.  P. 687. 

2.  EXEMPTION OF UNION-EMPLOYER AGREEMENTS FROM THE COVERAGE OF THE
SHERMAN ACT IS A MATTER OF ACCOMMODATING THAT ACT TO THE POLICY OF THE
LABOR LAWS, AS THIS COURT POINTED OUT IN UNITED MINE WORKERS V.
PENNINGTON, ANTE, P. 657, AND THE FACT THAT EMPLOYERS AND UNIONS ARE
REQUIRED TO BARGAIN ABOUT WAGES, HOURS AND WORKING CONDITIONS WEIGHS
HEAVILY IN FAVOR OF ANTITRUST EXEMPTION FOR AGREEMENT ON THESE
SUBJECTS.  P. 689. 

3.  A PROVISION ESTABLISHING THE PARTICULAR HOURS OF WORK WOULD BE
WITHIN THE AMBIT OF WAGES, HOURS AND WORKING CONDITIONS REQUIRING
MANDATORY BARGAINING, AND THE UNIONS' SUCCESS IN OBTAINING THAT
PROVISION THROUGH NEGOTIATION IN PURSUIT OF THEIR OWN POLICIES FALLS
WITHIN THE PROTECTION OF THE NATIONAL LABOR POLICY AND IS EXEMPT FROM
THE SHERMAN ACT.  PP. 689-691. 

4.  LIKEWISE A MARKETING-HOURS RESTRICTION WOULD BE EXEMPT IF NIGHT
OPERATION OF MEAT MARKETS WOULD REQUIRE NIGHT EMPLOYMENT OF BUTCHERS,
IMPAIR THE BUTCHERS' JURISDICTION OR SUBSTANTIALLY AFFECT THEIR
WORKLOAD.  P. 692. 

5.  BUT IF SELF-SERVICE MARKETS COULD CONDUCT NIGHT OPERATIONS
WITHOUT AFFECTING THE VITAL INTERESTS OF BUTCHERS, THERE MIGHT BE
RESTRAINT ON THE PRODUCT MARKET, AND THE LIMITATION IMPOSED BY THE
UNIONS MIGHT BE NOTHING MORE THAN AN ATTEMPT TO PROTECT ONE GROUP OF
EMPLOYERS FROM COMPETITION FROM ANOTHER GROUP, WHICH IS CONDUCT NOT
EXEMPT FROM THE SHERMAN ACT.  PP. 692-693. 

6.  THE RESOLUTION BY THE DISTRICT COURT OF THE QUESTION OF WHETHER
NIGHT OPERATIONS WITHOUT BUTCHERS, AND WITHOUT INFRINGEMENT OF THE
BUTCHERS' INTERESTS, ARE FEASIBLE, IN FAVOR OF THE UNIONS' POSITION,
WAS SUPPORTED BY EVIDENCE IN THE RECORD AND IS NOT CLEARLY ERRONEOUS. 
PP.  694-697. 

MR. JUSTICE GOLDBERG, JOINED BY MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART, CONCLUDED THAT: 

THE HISTORY OF LEGISLATIVE ENACTMENTS IN THE AREA OF COLLECTIVE
BARGAINING DEMONSTRATES A CONSISTENT CONGRESSIONAL PURPOSE TO LIMIT
SEVERELY JUDICIAL INTERVENTION INTO THE FORMULATION OF LABOR POLICY
THROUGH THE USE OF THE ANTITRUST LAWS.  CONGRESS INTENDED TO FORECLOSE
JUDGES AND JURIES FROM MAKING ESSENTIALLY ECONOMIC JUDGMENTS IN
ANTITRUST CASES BY DETERMINING WHETHER UNIONS OR EMPLOYERS HAD GOOD OR
BAD MOTIVES FOR THEIR AGREEMENTS ON MANDATORY SUBJECTS OF COLLECTIVE
BARGAINING.  PP. 697-735. 

(A)  WHERE CONGRESS DEEMED THERE WERE SPECIFIC ABUSES ON THE PART OF
LABOR UNIONS IT ENACTED SPECIFIC PROSCRIPTIONS IN THE LABOR STATUTES. 
PP. 707-708. 

(B)  THE COURT SHOULD FOLLOW THE APPROACH OF UNITED STATES V.
HUTCHESON, 312 U.S. 219, THAT THE LABOR EXEMPTION FROM THE ANTITRUST
LAWS DERIVES FROM A SYNTHESIS OF ALL PERTINENT LEGISLATION, AND HOLD
THAT COLLECTIVE BARGAINING ACTIVITY CONCERNING MANDATORY SUBJECTS OF
BARGAINING UNDER THE NATIONAL LABOR RELATIONS ACT IS NOT SUBJECT TO THE
ANTITRUST LAWS.  PP. 709-710. 

(C)  MULTI-EMPLOYER BARGAINING IS NOT ILLEGAL OR OPPOSED TO THE
NATIONAL LABOR PARTY.  PP. 712-713. 

(D)  LABOR CONTRACTS ESTABLISHING STANDARDIZED WAGES, HOURS OR OTHER
CONDITIONS OF EMPLOYMENT ARE OFTEN SECURED BY BARGAINING WITH MULTI
EMPLOYER ASSOCIATIONS OR THROUGH BARGAINING WITH MARKET LEADERS THAT
SETS A "PATTERN," AND THE POLICY OF PATTERN BARGAINING SHOULD NOT LEAD
TO ANTITRUST LIABILITY MERELY BECAUSE OF ITS FORM.  P. 722. 

(E)  IN THIS CASE EVEN IF THE SELF-SERVICE MARKETS COULD OPERATE
AFTER 6 P.M., WITHOUT THEIR BUTCHERS AND WITHOUT INCREASING THE WORK OF
THEIR BUTCHERS AT OTHER TIMES, THE RESULT OF SUCH OPERATION CAN
REASONABLY BE EXPECTED TO BE EITHER THAT THE SMALL INDEPENDENT SERVICE
MARKETS WOULD HAVE TO REMAIN OPEN IN ORDER TO COMPETE, THUS REQUIRING
THEIR UNION BUTCHERS TO WORK AT NIGHT, OR THAT THE SMALL, INDEPENDENT
SERVICE MARKETS WOULD NOT BE ABLE TO OPERATE AT NIGHT AND THUS BE PUT
AT A COMPETITIVE DISADVANTAGE.  PP. 727-728. 

(F)  SINCE IT IS CLEAR THAT THE LARGE, AUTOMATED SELF-SERVICE MARKETS
EMPLOY FEWER BUTCHERS PER VOLUME OF SALES THAN SERVICE MARKETS DO, THE
UNION HAS A LEGITIMATE INTEREST IN KEEPING SERVICE MARKETS COMPETITIVE
SO AS TO PRESERVE JOBS.  P. 728. 

(G)  THE DIRECT INTEREST OF THE UNION IN NOT WORKING UNDESIRABLE
HOURS BY CURTAILING ALL BUSINESS AT THOSE HOURS IS A FAR CRY FROM THE
INDIRECT INTEREST OF A UNION IN FIXING PRICES AND ALLOCATING MARKETS
SOLELY TO INCREASE THE PROFITS OF FAVORED EMPLOYERS.  PP. 728-729. 

(H)  IF UNIONS ARE HELD LIABLE UNDER THE ANTITRUST LAWS FOR
ACTIVITIES CONCERNING MANDATORY SUBJECTS OF COLLECTIVE BARGAINING, THEN
THE EMPLOYER PARTIES TO SUCH BARGAINING WOULD ALSO BE SUBJECT TO
ANTITRUST PENALTIES, WHICH WOULD BE CLEARLY CONTRARY TO CONGRESSIONAL
POLICY AND MANIFESTLY UNFAIR IN VIEW OF THEIR STATUTORY DUTY TO
BARGAIN.  PP. 729-730. 

LOCAL UNION NO. 189, AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH
AMERICA, AFL-CIO, ET AL. V. JEWELL TEA CO., INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE WHITE ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION, IN WHICH THE CHIEF JUSTICE AND MR. JUSTICE BRENNAN JOIN. 

LIKE NO. 48, UNITED MINE WORKERS V. PENNINGTON, DECIDED TODAY, ANTE,
P. 657, THIS CASE PRESENTS QUESTIONS REGARDING THE APPLICATION OF SECS.
1 AND 2 OF THE SHERMAN ANTITRUST ACT, 26 STAT. 209, AS AMENDED, 15
U.S.C. SECS. 1, 2 (1958 ED.), TO ACTIVITIES OF LABOR UNIONS.  IN
PARTICULAR, IT CONCERNS THE LAWFULNESS OF THE FOLLOWING RESTRICTION ON
THE OPERATING HOURS OF FOOD STORE MEAT DEPARTMENTS CONTAINED IN A
COLLECTIVE BARGAINING AGREEMENT EXECUTED AFTER JOINT MULTI-EMPLOYER,
MULTI-UNION NEGOTIATIONS: 

"MARKET OPERATING HOURS SHALL BE 9:00 A.M. TO 6:00 P.M. MONDAY
THROUGH SATURDAY, INCLUSIVE.  NO CUSTOMER SHALL BE SERVED WHO COMES
INTO THE MARKET BEFORE OR AFTER THE HOURS SET FORTH ABOVE." 

THIS LITIGATION AROSE OUT OF THE 1957 CONTRACT NEGOTIATIONS BETWEEN
THE REPRESENTATIVES OF 9,000 CHICAGO RETAILERS OF FRESH MEAT AND THE
SEVEN UNION PETITIONERS, WHO ARE LOCAL AFFILIATES OF THE AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO,
REPRESENTING VIRTUALLY ALL BUTCHERS IN THE CHICAGO AREA.  DURING THE
1957 BARGAINING SESSIONS THE EMPLOYER GROUP PRESENTED SEVERAL REQUESTS
FOR UNION CONSENT TO A RELAXATION OF THE EXISTING CONTRACT RESTRICTION
ON MARKETING HOURS FOR FRESH MEAT, WHICH FORBADE THE SALE OF MEAT
BEFORE 9 A.M. AND AFTER 6 P.M. IN BOTH SERVICE AND SELF-SERVICE
MARKETS.  (FN1)  THE UNIONS REJECTED ALL SUCH SUGGESTIONS, AND THEIR
OWN PROPOSAL RETAINING THE MARKETING-HOURS RESTRICTION WAS ULTIMATELY
ACCEPTED AT THE FINAL BARGAINING SESSION BY ALL BUT TWO OF THE
EMPLOYERS, NATIONAL TEA CO. AND JEWEL TEA CO. (HEREINAFTER "JEWEL"). 
ASSOCIATED FOOD RETAILERS OF GREATER CHICAGO, A TRADE ASSOCIATION
HAVING ABOUT 1,000 INDIVIDUAL AND INDEPENDENT MERCHANTS AS MEMBERS AND
REPRESENTING SOME 300 MEAT DEALERS IN THE NEGOTIATIONS, WAS AMONG THOSE
WHO ACCEPTED.  JEWEL, HOWEVER, ASKED THE UNION NEGOTIATORS TO PRESENT
TO THEIR MEMBERSHIP, ON BEHALF OF IT AND NATIONAL TEA, A COUNTEROFFER
THAT INCLUDED PROVISION FOR FRIDAY NIGHT OPERATIONS.  AT THE SAME TIME
JEWEL VOICED ITS BELIEF, AS IT HAD MIDWAY THROUGH THE NEGOTIATIONS,
THAT ANY MARKETING-HOURS RESTRICTION WAS ILLEGAL.  ON THE
RECOMMENDATION OF THE UNION NEGOTIATORS, THE JEWEL OFFER WAS REJECTED
BY THE UNION MEMBERSHIP, AND A STRIKE WAS AUTHORIZED.  UNDER THE DURESS
OF THE STRIKE VOTE, JEWEL DECIDED TO SIGN THE CONTRACT PREVIOUSLY
APPROVED BY THE REST OF THE INDUSTRY. 

IN JULY 1958 JEWEL BROUGHT SUIT AGAINST THE UNIONS, CERTAIN OF THEIR
OFFICERS, ASSOCIATED, AND CHARLES H. BROMANN, SECRETARY-TREASURER OF
ASSOCIATED, SEEKING INVALIDATION UNDER SECS. 1 AND 2 OF THE SHERMAN ACT
OF THE CONTRACT PROVISION THAT PROHIBITED NIGHT MEAT MARKET
OPERATIONS.  THE GIST OF THE COMPLAINT WAS THAT THE DEFENDANTS AND
OTHERS HAD CONSPIRED TOGETHER TO PREVENT THE RETAIL SALE OF FRESH MEAT
BEFORE 9 A.M. AND AFTER 6 P.M.  AS EVIDENCE OF THE CONSPIRACY JEWEL
RELIED IN PART ON THE EVENTS DURING THE 1957 CONTRACT NEGOTIATIONS -
THE ACCEPTANCE BY ASSOCIATED OF THE MARKET-HOURS RESTRICTION AND THE
UNIONS' IMPOSITION OF THE RESTRICTION ON JEWEL THROUGH A STRIKE
THREAT.  JEWEL ALSO ALLEGED THAT IT WAS A PART OF THE CONSPIRACY THAT
THE UNIONS WOULD NEITHER PERMIT THEIR MEMBERS TO WORK AT TIMES OTHER
THAN THE HOURS SPECIFIED NOR ALLOW ANY GROCERY FIRM TO SELL MEAT, WITH
OR WITHOUT EMPLOYMENT OF THEIR MEMBERS, OUTSIDE THOSE HOURS; THAT THE
MEMBERS OF ASSOCIATED, WHICH HAD JOINED ONLY ONE OF THE 1957 EMPLOYER
PROPOSALS FOR EXTENDED MARKETING HOURS, HAD AGREED AMONG THEMSELVES TO
INSIST ON THE INCLUSION OF THE MARKETING-HOURS LIMITATION IN ALL
COLLECTIVE BARGAINING AGREEMENTS BETWEEN THE UNIONS AND ANY FOOD STORE
OPERATOR; THAT ASSOCIATED, ITS MEMBERS AND OFFICERS HAD AGREED WITH THE
OTHER DEFENDANTS THAT NO FIRM WAS TO BE PERMITTED TO OPERATE SELF
SERVICE MEAT MARKETS BETWEEN 6 P.M. AND 9 P.M.; AND THAT THE UNIONS,
THEIR OFFICERS AND MEMBERS HAD ACTED AS THE ENFORCING AGENT OF THE
CONSPIRACY. 

THE COMPLAINT STATED THAT IN RECENT YEARS THE PREPACKAGED, SELF
SERVICE SYSTEM OF MARKETING MEAT HAD COME INTO VOGUE, THAT 174 OF
JEWEL'S 196 STORES WERE EQUIPPED TO VEND MEAT IN THIS MANNER, AND THAT
A BUTCHER NEED NOT BE ON DUTY IN A SELF-SERVICE MARKET AT THE TIME MEAT
PURCHASES WERE ACTUALLY MADE.  THE PROHIBITION OF NIGHT MEAT MARKETING,
IT WAS ALLEGED, UNLAWFULLY IMPEDED JEWEL IN THE USE OF ITS PROPERTY AND
ADVERSELY AFFECTED THE GENERAL PUBLIC IN THAT MANY PERSONS FIND IT
INCONVENIENT TO SHOP DURING THE DAY.  AN INJUNCTION, TREBLE DAMAGES AND
ATTORNEYS' FEES WERE DEMANDED. 

THE TRIAL JUDGE HELD THE ALLEGATIONS OF THE COMPLAINT SUFFICIENT TO
WITHSTAND A MOTION TO DISMISS MADE ON THE GROUNDS, INTER ALIA, THAT (A)
THE ALLEGED RESTRAINT WAS WITHIN THE EXCLUSIVE REGULATORY SCOPE OF THE
NATIONAL LABOR RELATIONS ACT AND WAS THEREFORE OUTSIDE THE JURISDICTION
OF THE COURT AND (B) THE CONTROVERSY WAS WITHIN THE LABOR EXEMPTION TO
THE ANTITRUST LAWS.  THAT RULING WAS SUSTAINED ON APPEAL.  JEWEL TEA
CO. V. LOCAL UNIONS NOS. 189, ETC., AMALGAMATED MEAT CUTTERS, AFL-CIO,
274 F.2D 217 (C.A. 7TH CIR. 1960), CERT. DENIED, 362 U.S. 936.  AFTER
TRIAL, HOWEVER, THE DISTRICT JUDGE RULED THE "RECORD WAS DEVOID OF ANY
EVIDENCE TO SUPPORT A FINDING OF CONSPIRACY" BETWEEN ASSOCIATED AND THE
UNIONS TO FORCE THE RESTRICTIVE PROVISION ON JEWEL.  215 F. SUPP. 839,
845.  TESTING THE UNIONS ACTION STANDING ALONE, THE TRIAL COURT FOUND
THAT EVEN IN SELF-SERVICE MARKETS REMOVAL OF THE LIMITATION ON
MARKETING HOURS EITHER WOULD INAUGURATE LONGER HOURS AND NIGHT WORK FOR
THE BUTCHERS OR WOULD RESULT IN BUTCHERS' WORK BEING DONE BY OTHERS
UNSKILLED IN THE TRADE.   THUS, THE COURT CONCLUDED, THE UNIONS HAD
IMPOSED THE MARKETING-HOURS LIMITATION TO SERVE THEIR OWN INTERESTS
RESPECTING CONDITIONS OF EMPLOYMENT, AND SUCH ACTION WAS CLEARLY WITHIN
THE LABOR EXEMPTION OF THE SHERMAN ACT ESTABLISHED BY HUNT V. CRUMBOCH,
325 U.S. 821; UNITED STATES V. HUTCHESON, 312 U.S. 219; UNITED STATES
V. AMERICAN FEDERATION OF MUSICIANS, 318 U.S. 741.  ALTERNATIVELY, THE
DISTRICT COURT RULED THAT EVEN IF THIS WAS NOT THE CASE, THE
ARRANGEMENT DID NOT AMOUNT TO AN UNREASONABLE RESTRAINT OF TRADE IN
VIOLATION OF THE SHERMAN ACT. 

THE COURT OF APPEALS REVERSED THE DISMISSAL OF THE COMPLAINT AS TO
BOTH THE UNIONS AND ASSOCIATED.   WITHOUT DISTURBING THE DISTRICT
COURT'S FINDING THAT, APART FROM THE CONTRACTUAL PROVISION ITSELF,
THERE WAS NO EVIDENCE OF CONSPIRACY, THE COURT OF APPEALS CONCLUDED
THAT A CONSPIRACY IN RESTRAINT OF TRADE HAD BEEN SHOWN.  THE COURT
NOTED THAT "THE REST OF THE INDUSTRY AGREED WITH THE DEFENDANT LOCAL
UNIONS TO CONTINUE THE BAN ON NIGHT OPERATIONS," WHILE PLAINTIFF
RESISTED, AND CONCLUDED THAT ASSOCIATED AND THE UNIONS "ENTERED INTO A
COMBINATION OR AGREEMENT, WHICH CONSTITUTED A CONSPIRACY, AS CHARGED IN
THE COMPLAINT  ...  WHETHER IT BE CALLED AN AGREEMENT, A CONTRACT OR A
CONSPIRACY, IS IMMATERIAL."  331 F.2D 547, 551. 

SIMILARLY, THE COURT OF APPEALS DID NOT FIND IT NECESSARY TO REVIEW
THE LOWER COURT'S FINDING THAT NIGHT MARKETING WOULD AFFECT EITHER THE
BUTCHERS' WORKING HOURS OR THEIR JURISDICTION, FOR THE COURT HELD THAT
AN EMPLOYER-UNION CONTRACT RESPECTING WORKING HOURS WOULD BE UNLAWFUL. 
"ONE OF THE PROPRIETARY FUNCTIONS IS THE DETERMINATION OF WHAT DAYS A
WEEK AND WHAT HOURS OF THE DAY THE BUSINESS WILL BE OPEN TO SUPPLY ITS
CUSTOMERS  ...  .  AS LONG AS ALL RIGHTS OF EMPLOYEES ARE RECOGNIZED
AND DULY OBSERVED BY THE EMPLOYER, INCLUDING THE NUMBER OF HOURS PER
DAY THAT ANY ONE SHALL BE REQUIRED TO WORK, ANY AGREEMENT BY A LABOR
UNION, ACTING IN CONCERT WITH BUSINESS COMPETITORS OF THE EMPLOYER,
DESIGNED TO INTERFERE WITH HIS OPERATION OF A RETAIL BUSINESS  ...  IS
A VIOLATION OF THE SHERMAN ACT  ...  .  THE FURNISHING OF A PLACE AND
ADVANTAGEOUS HOURS OF EMPLOYMENT FOR THE BUTCHERS TO SUPPLY MEAT TO
CUSTOMERS ARE THE PREROGATIVES OF THE EMPLOYER."  331 F.2D 547, 549. 

WE GRANTED CERTIORARI ON THE UNIONS' PETITION, (FN2) 379 U.S. 813,
(FN3) AND NOW REVERSE THE COURT OF APPEALS. 

                                 I. 

WE MUST FIRST CONSIDER THE UNIONS' ATTACK ON THE APPROPRIATENESS OF
THE DISTRICT COURT'S EXERCISE OF JURISDICTION, WHICH IS ENCOMPASSED IN
THEIR CONTENTION THAT THIS CONTROVERSY IS WITHIN THE EXCLUSIVE PRIMARY
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD.  ON THIS POINT,
WHICH IS DISTINCT FROM THE UNIONS' ARGUMENT THAT THE OPERATING-HOURS
RESTRICTION IS SUBJECT TO REGULATION ONLY BY THE BOARD AND IS THUS
WHOLLY EXEMPT FROM THE ANTITRUST LAWS, THE UNIONS' THESIS IS THAT THE
PIVOTAL ISSUE IS WHETHER THE OPERATING-HOURS RESTRICTION IS A "TERM OR
CONDITION OF EMPLOYMENT" AND THAT THE DISTRICT COURT SHOULD HAVE HELD
THE CASE ON ITS DOCKET PENDING A BOARD PROCEEDING TO RESOLVE THAT
ISSUE, WHICH IS SAID TO BE PECULIARLY WITHIN THE COMPETENCE OF THE
BOARD. 

"THE DOCTRINE OF PRIMARY JURISDICTION  ...  APPLIES WHERE A CLAIM IS
ORIGINALLY COGNIZABLE IN THE COURTS, AND COMES INTO PLAY WHENEVER
ENFORCEMENT OF THE CLAIM REQUIRES THE RESOLUTION OF ISSUES WHICH, UNDER
A REGULATORY SCHEME, HAVE BEEN PLACED WITHIN THE SPECIAL COMPETENCE OF
AN ADMINISTRATIVE BODY; IN SUCH A CASE THE JUDICIAL PROCESS IS
SUSPENDED PENDING REFERRAL OF SUCH ISSUES TO THE ADMINISTRATIVE BODY
FOR ITS VIEWS."  UNITED STATES V. WESTERN PAC. R. CO., 352 U.S. 59, 63
64.  THE DOCTRINE IS BASED ON THE PRINCIPLE "THAT IN CASES RAISING
ISSUES OF FACT NOT WITHIN THE CONVENTIONAL EXPERIENCE OF JUDGES OR
CASES REQUIRING THE EXERCISE OF ADMINISTRATIVE DISCRETION, AGENCIES
CREATED BY CONGRESS FOR REGULATING THE SUBJECT MATTER SHOULD NOT BE
PASSED OVER," FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570, 574,
AND "REQUIRES JUDICIAL ABSTENTION IN CASES WHERE PROTECTION OF THE
INTEGRITY OF A REGULATORY SCHEME DICTATES PRELIMINARY RESORT TO THE
AGENCY WHICH ADMINISTERS THE SCHEME," UNITED STATES V. PHILADELPHIA
NAT. BANK, 374 U.S. 321, 353. 

WHETHER A PROPOSED BARGAINING SUBJECT IS A TERM OR CONDITION OF
EMPLOYMENT IS AN ISSUE THAT THE BOARD FREQUENTLY DETERMINES IN
CONSIDERING CHARGES THAT AN EMPLOYER OR UNION HAS VIOLATED THE DUTY TO
BARGAIN IN GOOD FAITH CONCERNING "WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT," THE MANDATORY SUBJECTS OF BARGAINING
DESCRIBED IN SEC. 8(D) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT.
452, AS AMENDED.  SUCH AN ISSUE MAY BE RAISED BY AN UNFAIR LABOR
PRACTICE CHARGE OF VIOLATION OF SEC. 8(A)(5) OR SEC. 8(B)(3) THROUGH,
FOR EXAMPLE, A REFUSAL TO BARGAIN ON A MANDATORY SUBJECT OF BARGAINING,
SEE LABOR BOARD V. KATZ, 369 U.S. 736, OR INSISTENCE ON A NONMANDATORY
SUBJECT, SEE LABOR BOARD V. BORG-WARNER CORP., 356 U.S. 342.  THUS, THE
UNIONS CONTEND, JEWEL COULD HAVE FILED AN UNFAIR LABOR PRACTICE CHARGE
WITH THE BOARD ON THE GROUND THAT THE UNIONS HAD INSISTED ON A
NONMANDATORY SUBJECT - THE MARKETING-HOURS RESTRICTION.  OBVIOUSLY,
CLASSIFICATION OF BARGAINING SUBJECTS AS "TERMS OR CONDITIONS OF
EMPLOYMENT" IS A MATTER CONCERNING WHICH THE BOARD HAS SPECIAL
EXPERTISE.  NEVERTHELESS, FOR THE REASONS STATED BELOW WE CANNOT
CONCLUDE THAT THIS IS A PROPER CASE FOR APPLICATION OF THE DOCTRINE OF
PRIMARY JURISDICTION. 

TO BEGIN WITH, COURTS ARE THEMSELVES NOT WITHOUT EXPERIENCE IN
CLASSIFYING BARGAINING SUBJECTS AS TERMS OR CONDITIONS OF EMPLOYMENT. 
JUST SUCH A DETERMINATION MUST BE FREQUENTLY MADE WHEN A COURT'S
JURISDICTION TO ISSUE AN INJUNCTION AFFECTING A LABOR DISPUTE IS
CHALLENGED UNDER THE NORRIS-LAGUARDIA ACT, WHICH DEFINES "LABOR
DISPUTE" AS INCLUDING "ANY CONTROVERSY CONCERNING TERMS OR CONDITIONS
OF EMPLOYMENT," NORRIS-LAGUARDIA ACT, SEC. 13(C), 47 STAT.  73, 29
U.S.C. SEC. 113(C) (1958 ED.).  SEE ORDER OF RAILROAD TELEGRAPHERS V.
CHICAGO & N.W.R.  CO., 362 U.S. 330; BAKERY DRIVERS UNION V. WAGSHAL,
333 U.S. 437; CF. TEAMSTERS UNION V. OLIVER, 358 U.S. 283. 

SECONDLY, THE DOCTRINE OF PRIMARY JURISDICTION IS NOT A DOCTRINE OF
FUTILITY; IT DOES NOT REQUIRE RESORT TO "AN EXPENSIVE AND MERELY
DELAYING ADMINISTRATIVE PROCEEDING WHEN THE CASE MUST EVENTUALLY BE
DECIDED ON A CONTROLLING LEGAL ISSUE WHOLLY UNRELATED TO DETERMINATIONS
FOR THE ASCERTAINMENT OF WHICH THE PROCEEDING WAS SENT TO THE AGENCY." 
MARITIME BOARD V. ISBRANDTSEN CO., 356 U.S. 481, 521 (FRANKFURTER, J.,
DISSENTING).  IT WAS ONLY AFTER COMMENCEMENT OF TRIAL THAT IT BECAME
EVIDENT THAT A MAJOR ISSUE IN THIS CASE WOULD BE WHETHER THE MARKETING
HOURS RESTRICTION WAS A TERM OR CONDITION OF EMPLOYMENT.  JEWEL'S
COMPLAINT ALLEGED THE EXISTENCE OF A CONSPIRACY BETWEEN ASSOCIATED AND
THE UNIONS TO IMPOSE THE MARKETING-HOURS PROVISION ON JEWEL - THAT IS,
IT WAS ALLEGED THAT THE UNIONS HAD AGREED WITH A PART OF THE BARGAINING
UNIT TO IMPOSE CERTAIN TERMS ON THE REST OF THE UNIT.  WE HOLD TODAY IN
UNITED MINE WORKERS V. PENNINGTON WITH RESPECT TO ALLEGATIONS OF A
SIMILAR EMPLOYER-UNION AGREEMENT TO IMPOSE A PARTICULAR SCALE OF WAGES
INDISPUTABLY AT THE CORE OF "WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT" - THAT SUCH AN UNDERSTANDING IS NOT EXEMPT
FROM THE SHERMAN ACT.  AT THE STAGE WHEN THE DECISION WHETHER TO REFER
THE PARTIES TO THE BOARD WAS MADE, THEREFORE, THE ISSUES WERE SO FRAMED
THAT A BOARD DETERMINATION WOULD HAVE BEEN OF SUBSIDIARY IMPORTANCE AT
BEST.    FINALLY, WE MUST REJECT THE UNIONS' PRIMARY-JURISDICTION
CONTENTION BECAUSE OF THE ABSENCE OF AN AVAILABLE PROCEDURE FOR
OBTAINING A BOARD DETERMINATION.  THE BOARD DOES NOT CLASSIFY
BARGAINING SUBJECTS IN THE ABSTRACT BUT ONLY IN CONNECTION WITH UNFAIR
LABOR PRACTICE CHARGES OF REFUSAL TO BARGAIN.  THE TYPICAL ANTITRUST
SUIT, HOWEVER, IS BROUGHT BY A STRANGER TO THE BARGAINING RELATIONSHIP,
AND THE COMPLAINT IS NOT THAT THE PARTIES HAVE REFUSED TO BARGAIN BUT,
QUITE THE CONTRARY, THAT THEY HAVE AGREED.  JEWEL'S CONSPIRACY
ALLEGATION IN THE PRESENT CASE WAS JUST SUCH A COMPLAINT.  AGREEMENT IS
OF COURSE NOT A REFUSAL TO BARGAIN, AND IN SUCH CASES THE BOARD AFFORDS
NO MECHANISM FOR OBTAINING A CLASSIFICATION OF THE SUBJECT MATTER OF
THE AGREEMENT.  MOREOVER, EVEN IN THE FEW INSTANCES WHEN THE ANTITRUST
ACTION COULD BE FRAMED AS A REFUSAL TO BARGAIN CHARGE, THERE IS NO
GUARANTEE OF BOARD ACTION.  IT IS THE FUNCTION OF THE BOARD'S GENERAL
COUNSEL RATHER THAN THE BOARD OR A PRIVATE LITIGANT TO DETERMINE
WHETHER AN UNFAIR LABOR PRACTICE COMPLAINT WILL ULTIMATELY ISSUE. 
NATIONAL LABOR RELATIONS ACT, SEC.  3(D), 29 U.S.C. SEC. 153(D) (1958
ED.).  AND THE SIX-MONTH LIMITATION PERIOD OF SEC. 10(B) OF THE ACT, 29
U.S.C. SEC. 160(B) (1958 ED.), WOULD PRECLUDE MANY LITIGANTS FROM EVEN
FILING A CHARGE WITH THE GENERAL COUNSEL.  INDEED, JEWEL'S COMPLAINT IN
THIS VERY CASE WAS FILED MORE THAN SIX MONTHS AFTER IT SIGNED THE 1957
COLLECTIVE BARGAINING AGREEMENT.  "WE KNOW OF NO CASE WHERE THE COURT
HAS ORDERED REFERENCE OF AN ISSUE WHICH THE ADMINISTRATIVE BODY WOULD
NOT ITSELF HAVE JURISDICTION TO DETERMINE IN A PROCEEDING FOR THAT
PURPOSE."  MONTANA-DAKOTA UTILITIES CO. V. NORTHWESTERN PUBLIC SERV.
CO., 341 U.S. 246, 254.  (FN4)

                             II. 

HERE, AS IN UNITED MINE WORKERS V. PENNINGTON, ANTE, P. 657, THE
CLAIM IS MADE THAT THE AGREEMENT UNDER ATTACK IS EXEMPT FROM THE
ANTITRUST LAWS.  WE AGREE, BUT NOT ON THE BROAD GROUNDS URGED BY THE
UNION. 

IT IS WELL AT THE OUTSET TO EMPHASIZE THAT THIS CASE COMES TO US
STRIPPED OF ANY CLAIM OF A UNION-EMPLOYER CONSPIRACY AGAINST JEWEL. 
THE TRIAL COURT FOUND NO EVIDENCE TO SUSTAIN JEWEL'S CONSPIRACY CLAIM
AND THIS FINDING WAS NOT DISTURBED BY THE COURT OF APPEALS.  WE
THEREFORE HAVE A SITUATION WHERE THE UNIONS, HAVING OBTAINED A
MARKETING-HOURS AGREEMENT FROM ONE GROUP OF EMPLOYERS, HAVE
SUCCESSFULLY SOUGHT THE SAME TERMS FROM A SINGLE EMPLOYER, JEWEL, NOT
AS A RESULT OF A BARGAIN BETWEEN THE UNIONS AND SOME EMPLOYERS DIRECTED
AGAINST OTHER EMPLOYERS, BUT PURSUANT TO WHAT THE UNIONS DEEMED TO BE
IN THEIR OWN LABOR UNION INTERESTS. 

JEWEL DOES NOT ALLEGE THAT IT HAS BEEN INJURED BY THE ELIMINATION OF
COMPETITION AMONG THE OTHER EMPLOYERS WITHIN THE UNIT WITH RESPECT TO
MARKETING HOURS; JEWEL COMPLAINS ONLY OF THE UNIONS' ACTION IN FORCING
IT TO ACCEPT THE SAME RESTRICTION, THE UNIONS ACTING NOT AT THE BEHEST
OF ANY EMPLOYER GROUP BUT IN PURSUIT OF THEIR OWN POLICIES.  IT MIGHT
BE ARGUED THAT ABSENT ANY UNION-EMPLOYER CONSPIRACY AGAINST JEWEL AND
ABSENT ANY AGREEMENT BETWEEN JEWEL AND ANY OTHER EMPLOYER, THE UNION
JEWEL CONTRACT CANNOT BE A VIOLATION OF THE SHERMAN ACT.  BUT THE ISSUE
BEFORE US IS NOT THE BROAD SUBSTANTIVE ONE OF A VIOLATION OF THE
ANTITRUST LAWS - WAS THERE A CONSPIRACY OR COMBINATION WHICH
UNREASONABLY RESTRAINED TRADE OR AN ATTEMPT TO MONOPOLIZE AND WAS JEWEL
DAMAGED IN ITS BUSINESS?  - BUT WHETHER THE AGREEMENT IS IMMUNE FROM
ATTACK BY REASON OF THE LABOR EXEMPTION FROM THE ANTITRUST LAWS.  SEE
NOTE 3, SUPRA.  THE FACT THAT THE PARTIES TO THE AGREEMENT ARE BUT A
SINGLE EMPLOYER AND THE UNIONS REPRESENTING ITS EMPLOYEES DOES NOT
COMPEL IMMUNITY FOR THE AGREEMENT.  WE MUST CONSIDER THE SUBJECT MATTER
OF THE AGREEMENT IN THE LIGHT OF THE NATIONAL LABOR POLICY.  CF. BAKERY
DRIVERS UNION V. WAGSHAL, 333 U.S. 437. 

WE POINTED OUT IN PENNINGTON THAT EXEMPTION FOR UNION-EMPLOYER
AGREEMENTS IS VERY MUCH A MATTER OF ACCOMMODATING THE COVERAGE OF THE
SHERMAN ACT TO THE POLICY OF THE LABOR LAWS.  EMPLOYERS AND UNIONS ARE
REQUIRED TO BARGAIN ABOUT WAGES, HOURS AND WORKING CONDITIONS, AND THIS
FACT WEIGHS HEAVILY IN FAVOR OF ANTITRUST EXEMPTION FOR AGREEMENTS ON
THESE SUBJECTS.  BUT NEITHER PARTY NEED BARGAIN ABOUT OTHER MATTERS AND
EITHER PARTY COMMITS AN UNFAIR LABOR PRACTICE IF IT CONDITIONS ITS
BARGAINING UPON DISCUSSIONS OF A NONMANDATORY SUBJECT.  LABOR BOARD V.
BORG-WARNER CORP., 356 U.S. 342.  JEWEL, FOR EXAMPLE, NEED NOT HAVE
BARGAINED ABOUT OR AGREED TO A SCHEDULE OF PRICES AT WHICH ITS MEAT
WOULD BE SOLD AND THE UNIONS COULD NOT LEGALLY HAVE INSISTED THAT IT DO
SO.  BUT IF THE UNIONS HAD MADE SUCH A DEMAND, JEWEL HAD AGREED AND THE
UNITED STATES OR AN INJURED PARTY HAD CHALLENGED THE AGREEMENT UNDER
THE ANTITRUST LAWS, WE SERIOUSLY DOUBT THAT EITHER THE UNIONS OR JEWEL
COULD CLAIM IMMUNITY BY REASON OF THE LABOR EXEMPTION, WHATEVER
SUBSTANTIVE QUESTIONS OF VIOLATION THERE MIGHT BE. 

THUS THE ISSUE IN THIS CASE IS WHETHER THE MARKETING-HOURS
RESTRICTION, LIKE WAGES, AND UNLIKE PRICES, IS SO INTIMATELY RELATED TO
WAGES, HOURS AND WORKING CONDITIONS THAT THE UNIONS' SUCCESSFUL ATTEMPT
TO OBTAIN THAT PROVISION THROUGH BONA FIDE, ARM'S-LENGTH BARGAINING IN
PURSUIT OF THEIR OWN LABOR UNION POLICIES, AND NOT AT THE BEHEST OF OR
IN COMBINATION WITH NONLABOR GROUPS, FALLS WITHIN THE PROTECTION OF THE
NATIONAL LABOR POLICY AND IS THEREFORE EXEMPT FROM THE SHERMAN ACT. 
(FN5)  WE THINK THAT IT IS. 

THE COURT OF APPEALS WOULD CLASSIFY THE MARKETING-HOURS RESTRICTION
WITH THE PRODUCT-PRICING PROVISION AND PLACE BOTH WITHIN THE REACH OF
THE SHERMAN ACT.  IN ITS VIEW, LABOR HAS A LEGITIMATE INTEREST IN THE
NUMBER OF HOURS IT MUST WORK BUT NO INTEREST IN WHETHER THE HOURS FALL
IN THE DAYTIME, IN THE NIGHTTIME OR ON SUNDAYS.  "THE FURNISHING OF A
PLACE AND ADVANTAGEOUS HOURS OF EMPLOYMENT FOR THE BUTCHERS TO SUPPLY
MEAT TO CUSTOMERS ARE THE PREROGATIVES OF THE EMPLOYER."  331 F.2D 547,
549.  THAT REASONING WOULD INVALIDATE WITH RESPECT TO BOTH SERVICE AND
SELF-SERVICE MARKETS THE 1957 PROVISION THAT "EIGHT HOURS SHALL
CONSTITUTE THE BASIC WORK DAY, MONDAY THROUGH SATURDAY; WORK TO BEGIN
AT 9:00 A.M. AND STOP AT 6:00 P.M.  ...  ."  AS WELL AS THE MARKETING
HOURS RESTRICTION. 

CONTRARY TO THE COURT OF APPEALS, WE THINK THAT THE PARTICULAR HOURS
OF THE DAY AND THE PARTICULAR DAYS OF THE WEEK DURING WHICH EMPLOYEES
SHALL BE REQUIRED TO WORK ARE SUBJECTS WELL WITHIN THE REALM OF "WAGES,
HOURS, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT" ABOUT WHICH
EMPLOYERS AND UNIONS MUST BARGAIN.  NATIONAL LABOR RELATIONS ACT, SEC.
8(D); SEE TIMKEN ROLLER BEARING CO., 70 N.L.R.B. 500, 504, 515-516, 521
(1946), REV'D ON OTHER GROUNDS, 161 F.2D 949 (C.A. 6TH CIR.
1947)(EMPLOYER'S UNILATERAL IMPOSITION OF SUNDAY WORK WAS REFUSAL TO
BARGAIN); MASSEY GIN & MACHINE WORKS, INC., 78 N.L.R.B. 189, 195, 199
(1948)(CHANGE IN STARTING AND QUITTING TIME); CAMP & MCINNES, INC., 100
N.L.R.B. 524, 532 (1952)(REDUCTION OF LUNCH HOUR AND ADVANCEMENT OF
QUITTING TIME).  AND, ALTHOUGH THE EFFECT ON COMPETITION IS APPARENT
AND REAL, PERHAPS MORE SO THAN IN THE CASE OF THE WAGE AGREEMENT, THE
CONCERN OF UNION MEMBERS IS IMMEDIATE AND DIRECT.  WEIGHING THE
RESPECTIVE INTERESTS INVOLVED, WE THINK THE NATIONAL LABOR POLICY
EXPRESSED IN THE NATIONAL LABOR RELATIONS ACT PLACES BEYOND THE REACH
OF THE SHERMAN ACT UNION-EMPLOYER AGREEMENTS ON WHEN, AS WELL AS HOW
LONG, EMPLOYEES MUST WORK.  AN AGREEMENT ON THESE SUBJECTS BETWEEN THE
UNION AND THE EMPLOYERS IN A BARGAINING UNIT IS NOT ILLEGAL UNDER THE
SHERMAN ACT, NOR IS THE UNION'S UNILATERAL DEMAND FOR THE SAME CONTRACT
OF OTHER EMPLOYERS IN THE INDUSTRY. 

DISPOSING OF THE CASE, AS IT DID, ON THE BROAD GROUNDS WE HAVE
INDICATED, THE COURT OF APPEALS DID NOT DEAL SEPARATELY WITH THE
MARKETING-HOURS PROVISION, AS DISTINGUISHED FROM HOURS OF WORK, IN
CONNECTION WITH EITHER SERVICE OR SELF-SERVICE MARKETS.  THE DISPUTE
HERE PERTAINS PRINCIPALLY TO SELF-SERVICE MARKETS. 

THE UNIONS ARGUE THAT SINCE NIGHT OPERATIONS WOULD BE IMPOSSIBLE
WITHOUT NIGHT EMPLOYMENT OF BUTCHERS, OR AN IMPAIRMENT OF THE BUTCHERS'
JURISDICTION, OR A SUBSTANTIAL EFFECT ON THE BUTCHERS' WORKLOAD, THE
MARKETING-HOURS RESTRICTION IS EITHER LITTLE DIFFERENT IN EFFECT FROM
THE VALID WORKING-HOURS PROVISION THAT WORK SHALL STOP AT 6 P.M. OR IS
NECESSARY TO PROTECT OTHER CONCERNS OF THE UNION MEMBERS.  IF THE
UNIONS' FACTUAL PREMISES ARE TRUE, WE THINK THE UNIONS COULD IMPOSE A
RESTRICTION ON NIGHT OPERATIONS WITHOUT VIOLATION OF THE SHERMAN ACT;
FOR THEN OPERATING HOURS, LIKE WORKING HOURS, WOULD CONSTITUTE A
SUBJECT OF IMMEDIATE AND LEGITIMATE CONCERN TO UNION MEMBERS. 

JEWEL ALLEGES ON THE OTHER HAND THAT THE NIGHT OPERATION OF SELF
SERVICE MARKETS REQUIRES NO BUTCHER TO BE IN ATTENDANCE AND DOES NOT
INFRINGE ANY OTHER LEGITIMATE UNION CONCERN.  CUSTOMERS SERVE
THEMSELVES; AND IF OWNERS WANT TO FORGO FURNISHING THE SERVICES OF A
BUTCHER TO GIVE ADVICE OR TO MAKE SPECIAL CUTS, THIS IS NOT THE UNIONS'
CONCERN SINCE THEIR DESIRE TO AVOID NIGHT WORK IS FULLY SATISFIED AND
NO OTHER LEGITIMATE INTEREST IS BEING INFRINGED.  IN SHORT, THE
CONNECTION BETWEEN WORKING HOURS AND OPERATING HOURS IN THE CASE OF THE
SELF-SERVICE MARKET IS SAID TO BE SO ATTENUATED AS TO BRING THE
PROVISION WITHIN THE PROHIBITION OF THE SHERMAN ACT. 

IF IT WERE TRUE THAT SELF-SERVICE MARKETS COULD ACTUALLY OPERATE
WITHOUT BUTCHERS, AT LEAST FOR A FEW HOURS AFTER 6 P.M., THAT NO
ENCROACHMENT ON BUTCHERS' WORK WOULD RESULT AND THAT THE WORKLOAD OF
BUTCHERS DURING NORMAL WORKING HOURS WOULD NOT BE SUBSTANTIALLY
INCREASED, JEWEL'S POSITION WOULD HAVE CONSIDERABLE MERIT.  FOR THEN
THE OBVIOUS RESTRAINT ON THE PRODUCT MARKET - THE EXCLUSION OF SELF
SERVICE STORES FROM THE EVENING MARKET FOR MEAT - WOULD STAND ALONE,
UNMITIGATED AND UNJUSTIFIED BY THE VITAL INTERESTS OF THE UNION
BUTCHERS WHICH ARE RELIED UPON IN THIS CASE.  IN SUCH EVENT THE
LIMITATION IMPOSED BY THE UNIONS MIGHT WELL BE REDUCED TO NOTHING BUT
AN EFFORT BY THE UNIONS TO PROTECT ONE GROUP OF EMPLOYERS FROM
COMPETITION BY ANOTHER, WHICH IS CONDUCT THAT IS NOT EXEMPT FROM THE
SHERMAN ACT.  WHETHER THERE WOULD BE A VIOLATION OF SECS.  1 AND 2
WOULD THEN DEPEND ON WHETHER THE ELEMENTS OF A CONSPIRACY IN RESTRAINT
OF TRADE OR AN ATTEMPT TO MONOPOLIZE HAD BEEN PROVED.  (FN6) 

THUS THE DISPUTE BETWEEN JEWEL AND THE UNIONS ESSENTIALLY CONCERNS A
NARROW FACTUAL QUESTION: ARE NIGHT OPERATIONS WITHOUT BUTCHERS, AND
WITHOUT INFRINGEMENT OF BUTCHERS' INTERESTS, FEASIBLE?  THE DISTRICT
COURT RESOLVED THIS FACTUAL DISPUTE IN FAVOR OF THE UNIONS.  IT FOUND
THAT "IN STORES WHERE MEAT IS SOLD AT NIGHT IT IS IMPRACTICAL TO
OPERATE WITHOUT EITHER BUTCHERS OR OTHER EMPLOYEES.  SOMEONE MUST
ARRANGE, REPLENISH AND CLEAN THE COUNTERS AND SUPPLY CUSTOMER
SERVICES."  OPERATING WITHOUT BUTCHERS WOULD MEAN THAT "THEIR WORK
WOULD BE DONE BY OTHERS UNSKILLED IN THE TRADE," AND "WOULD INVOLVE AN
INCREASE IN WORKLOAD IN PREPARING FOR THE NIGHT WORK AND CLEANING THE
NEXT MORNING."  215 F. SUPP., AT 846.  THOSE FINDINGS WERE NOT
DISTURBED BY THE COURT OF APPEALS, WHICH, AS PREVIOUSLY NOTED,
PROCEEDED ON A BROADER GROUND.  OUR FUNCTION IS LIMITED TO REVIEWING
THE RECORD TO SATISFY OURSELVES THAT THE TRIAL JUDGE'S FINDINGS ARE NOT
CLEARLY ERRONEOUS.  FED. RULES CIV. PROC. 52(A). 

THE TRIAL COURT HAD BEFORE IT EVIDENCE CONCERNING THE HISTORY OF THE
UNIONS' OPPOSITION TO NIGHT WORK, THE DEVELOPMENT OF THE PROVISIONS
RESPECTING NIGHT WORK AND NIGHT OPERATIONS, THE COURSE OF COLLECTIVE
BARGAINING NEGOTIATIONS IN 1957, 1959, AND 1961 (FN7) WITH REGARD TO
THOSE PROVISIONS, AND THE CHARACTERISTICS OF MEAT MARKETING INSOFAR AS
THEY BORE ON THE FEASIBILITY OF NIGHT OPERATIONS WITHOUT BUTCHERS. 

THE UNIONS' OPPOSITION TO NIGHT WORK HAS A LONG HISTORY.  PRIOR TO
1919 THE OPERATING HOURS OF MEAT MARKETS IN CHICAGO WERE 7 A.M. TO 7
P.M., MONDAY THROUGH FRIDAY; 7 A.M. TO 10 P.M. ON SATURDAY, AND 7 A.M.
TO 1 P.M. ON SUNDAY.  BUTCHERS WORKED THE FULL 81-HOUR, SEVEN-DAY
WEEK.  THE CHICAGO BUTCHERS' STRIKE OF 1919 WAS MUCH CONCERNED WITH
SHORTENING WORKING HOURS, AND THE RESULTING CONTRACT, SIGNED IN 1920,
SET THE WORKING DAY AT 8 A.M. TO 6 P.M., MONDAY THROUGH FRIDAY, AND 8
A.M. TO 9 P.M. ON SATURDAY.  VARIOUS ALTERATIONS IN THE HOURS WERE MADE
IN 1937, 1941, 1945, 1946, AND AGAIN IN 1947, WHEN THE PRESENT WORKING
HOURS (9 A.M. TO 6 P.M., MONDAY THROUGH SATURDAY) WERE ESTABLISHED.  IN
A MAIL BALLOT CONDUCTED BY THE UNIONS IN OCTOBER 1962, JEWEL'S MEAT
CUTTERS VOTED 759 TO 28 AGAINST NIGHT WORK. 

CONCOMITANT WITH THE UNIONS' CONCERN WITH THE WORKING HOURS OF
BUTCHERS WAS THEIR INTEREST IN THE HOURS DURING WHICH CUSTOMERS MIGHT
BE SERVED.  THE 1920 AGREEMENT PROVIDED THAT "NO CUSTOMERS WILL BE
SERVED WHO COME INTO THE MARKET AFTER 6 P.M. AND 9 P.M. ON SATURDAYS
AND ON DAYS PRECEDING HOLIDAYS  ...  ."  THAT PROVISION WAS CONTINUED
UNTIL 1947, WHEN IT WAS SUPERSEDED BY THE FORMULATION PRESENTLY IN
EFFECT AND HERE CLAIMED TO BE UNLAWFUL: 

"MARKET OPERATING HOURS SHALL BE 9:00 A.M. TO 6:00 P.M. MONDAY
THROUGH SATURDAY, INCLUSIVE.  NO CUSTOMER SHALL BE SERVED WHO COMES
INTO THE MARKET BEFORE OR AFTER THE HOURS SET FORTH ABOVE." 

IN 1947, JEWEL HAD JUST STARTED INVESTIGATING THE SELF-SERVICE METHOD
OF MEAT VENDING.  IT INTRODUCED THAT METHOD IN THE CHICAGO AREA IN 1948
AND IN THE TERRITORY OF THESE UNIONS IN 1953. 

DURING THE 1957 NEGOTIATIONS NUMEROUS PROPOSALS FOR RELAXATION OF THE
OPERATING-HOURS RESTRICTION WERE PRESENTED BY THE EMPLOYER GROUP.  EACH
OF THESE PROPOSALS INCLUDING THAT SUBMITTED SEPARATELY BY JEWEL FOR
CONSIDERATION AT THE UNIONS' RATIFICATION MEETINGS, COMBINED A
PROVISION FOR NIGHT OPERATIONS WITH A PROVISION FOR A MORE FLEXIBLE
WORKDAY THAT WOULD PERMIT NIGHT EMPLOYMENT OF BUTCHERS.  SUCH
JUXTAPOSITION OF THE TWO PROVISIONS COULD, OF COURSE, ONLY SERVE TO
REINFORCE THE UNIONS' FEARS THAT NIGHT OPERATIONS MEANT NIGHT WORK. 
JEWEL DID ALLEGE IN ITS COMPLAINT, FILED IN JULY 1958, THAT NIGHT
OPERATIONS WERE POSSIBLE WITHOUT BUTCHERS, BUT EVEN IN THE 1959
BARGAINING SESSIONS JEWEL FAILED TO PUT FORTH ANY PLAN FOR NIGHT
OPERATIONS THAT DID NOT ALSO INCLUDE NIGHT WORK.  FINALLY, TOWARD THE
END OF THE 1961 NEGOTIATIONS, JEWEL DID MAKE SUCH A SUGGESTION, BUT, AS
THE TRIAL JUDGE REMARKED, THE "UNIONS QUESTIONED THE SERIOUSNESS OF
THAT PROPOSAL UNDER THE CIRCUMSTANCES."  215 F. SUPP., AT 843. 

THE UNIONS' EVIDENCE WITH REGARD TO THE PRACTICABILITY OF NIGHT
OPERATIONS WITHOUT BUTCHERS WAS ACCURATELY SUMMARIZED BY THE TRIAL
JUDGE AS FOLLOWS: 

"IN MOST OF PLAINTIFF'S STORES OUTSIDE CHICAGO, WHERE NIGHT
OPERATIONS EXIST, MEAT CUTTERS ARE ON DUTY WHENEVER A MEAT DEPARTMENT
IS OPEN AFTER 6 P.M  ...  .  EVEN IN SELF-SERVICE DEPARTMENTS,
OSTENSIBLY OPERATED WITHOUT EMPLOYEES ON DUTY AFTER 6 P.M., THERE WAS
EVIDENCE THAT REQUISITE CUSTOMER SERVICES IN CONNECTION WITH MEAT SALES
WERE PERFORMED BY GROCERY CLERKS.  IN THE SAME VEIN, DEFENDANTS ADDUCED
EVIDENCE THAT IN THE SALE OF DELICATESSEN ITEMS, WHICH COULD BE MADE
AFTER 6 P.M. FROM SELF-SERVICE CASES UNDER THE CONTRACT, 'PRACTICALLY'
ALWAYS DURING THE TIME THE MARKET WAS OPEN THE MANAGER, OR OTHER
EMPLOYEES, WOULD BE REARRANGING AND RESTOCKING THE CASES.  THERE WAS
ALSO EVIDENCE THAT EVEN IF IT WERE PRACTICAL TO OPERATE A SELF-SERVICE
MEAT MARKET AFTER 6 P.M. WITHOUT EMPLOYEES, THE NIGHT OPERATIONS WOULD
ADD TO THE WORKLOAD IN GETTING THE MEATS PREPARED FOR NIGHT SALES AND
IN PUTTING THE COUNTERS IN ORDER THE NEXT DAY."  215 F. SUPP., AT 844. 

JEWEL CHALLENGES THE UNIONS' EVIDENCE ON EACH OF THESE POINTS -
ARGUING, FOR EXAMPLE, THAT ITS PREFERENCE TO HAVE BUTCHERS ON DUTY AT
NIGHT, WHERE POSSIBLE UNDER THE UNION CONTRACT, IS NOT PROBATIVE OF THE
FEASIBILITY OF NOT HAVING BUTCHERS ON DUTY AND THAT THE EVIDENCE THAT
GROCERY CLERKS PERFORMED CUSTOMER SERVICES WITHIN THE BUTCHERS'
JURISDICTION WAS BASED ON A SINGLE INSTANCE RESULTING FROM "ENTRAPMENT"
BY UNION AGENTS.  BUT JEWEL'S ARGUMENT - WHEN CONSIDERED AGAINST THE
HISTORICAL BACKGROUND OF UNION CONCERN WITH WORKING HOURS AND OPERATING
HOURS AND THE VIRTUALLY UNIFORM RECOGNITION BY EMPLOYERS OF THE
INTIMATE RELATIONSHIP BETWEEN THE TWO SUBJECTS, AS MANIFESTED BY
BARGAINING PROPOSALS IN 1957, 1959, AND 1961 - FALLS FAR SHORT OF A
SHOWING THAT THE TRIAL JUDGE'S ULTIMATE FINDINGS WERE CLEARLY
ERRONEOUS.  REVERSED. 

FN1  THE PRACTICE IN THE CHICAGO AREA IS FOR THE EMPLOYERS AND THE
BUTCHERS TO EXECUTE SEPARATE, BUT SIMILAR, COLLECTIVE BARGAINING
AGREEMENTS FOR SELF-SERVICE AND SERVICE MARKETS.  A SELF-SERVICE MARKET
IS "ONE IN WHICH FRESH BEEF, VEAL, LAMB, MUTTON OR PORK ARE AVAILABLE
FOR SALE ON A PREPACKAGE SELF-SERVICE BASIS."  SEMI-SELF-SERVICE
MARKETS, THOSE IN WHICH FRESH MEAT IS MADE AVAILABLE ON A PREPACKAGED
BASIS BUT THERE IS ALSO A SERVICE COUNTER OFFERING CUSTOM CUTTING FOR
THOSE WHO PREFER IT, ARE GOVERNED BY THE SELF-SERVICE CONTRACT. 
SERVICE MARKETS ARE THOSE IN WHICH NO FRESH MEAT IS MADE AVAILABLE ON A
SELF-SERVICE BASIS. 

FN2  ACTION UPON THE SEPARATE PETITION OF ASSOCIATED AND BROMANN, NO.
321 OCT. TERM, 1964, HAS BEEN WITHHELD, PENDING DISPOSITION OF THIS
CASE. 

FN3  THE GRANT OF CERTIORARI WAS LIMITED TO THE FOLLOWING QUESTIONS: 

"1.  BASED ON THE DISTRICT COURT'S UNDISTURBED FINDING THAT THE
LIMITATION 'WAS IMPOSED AFTER ARM'S LENGTH BARGAINING,  ...  AND WAS
FASHIONED EXCLUSIVELY BY THE UNIONS TO SERVE THEIR OWN INTERESTS - HOW
LONG AND WHAT HOURS MEMBERS SHALL WORK, WHAT WORK THEY SHALL DO, AND
WHAT PAY THEY SHALL RECEIVE,' WHETHER THE LIMITATION UPON MARKET
OPERATING HOURS AND THE CONTROVERSY CONCERNING IT ARE WITHIN THE LABOR
EXEMPTION OF THE SHERMAN ANTITRUST ACT. 

"2.  WHETHER A CLAIMED VIOLATION OF THE SHERMAN ANTITRUST ACT WHICH
FALLS WITHIN THE REGULATORY SCOPE OF THE NATIONAL LABOR RELATIONS ACT
IS WITHIN THE EXCLUSIVE PRIMARY JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD." 

FN4  TO BE DISTINGUISHED ARE THE PRE-EMPTION CASES IN WHICH THE
POSSIBILITY THAT THE BOARD MAY NOT EXERCISE JURISDICTION RENDERS STATE
COURTS NO LESS POWERLESS TO ACT, SEE SAN DIEGO BUILDING TRADES COUNCIL
V. GARMON, 359 U.S. 236, 245-246.  SEE GENERALLY, TEAMSTERS LOCAL 20 V.
MORTON, 377 U.S. 252. 

FN5  THE CRUCIAL DETERMINANT IS NOT THE FORM OF THE AGREEMENT - E.G.,
PRICES OR WAGES - BUT ITS RELATIVE IMPACT ON THE PRODUCT MARKET AND THE
INTERESTS OF UNION MEMBERS.  THUS IN TEAMSTERS UNION V. OLIVER, 358
U.S. 283, WE HELD THAT FEDERAL LABOR POLICY PRECLUDED APPLICATION OF
STATE ANTITRUST LAWS TO AN EMPLOYER-UNION AGREEMENT THAT WHEN LEASED
TRUCKS WERE DRIVEN BY THEIR OWNERS, SUCH OWNER-DRIVERS SHOULD RECEIVE,
IN ADDITION TO THE UNION WAGE, NOT LESS THAN A PRESCRIBED MINIMUM
RENTAL.  THOUGH IN FORM A SCHEME FIXING PRICES FOR THE SUPPLY OF LEASED
VEHICLES, THE AGREEMENT WAS DESIGNED "TO PROTECT THE NEGOTIATED WAGE
SCALE AGAINST THE POSSIBLE UNDERMINING THROUGH DIMINUTION OF THE
OWNER'S WAGES FOR DRIVING WHICH MIGHT RESULT FROM A RENTAL WHICH DID
NOT COVER HIS OPERATING COSTS."  ID., AT 293-294.  AS THE AGREEMENT DID
NOT EMBODY A "'REMOTE AND INDIRECT APPROACH TO THE SUBJECT OF WAGES'
...  BUT A DIRECT FRONTAL ATTACK UPON A PROBLEM THOUGHT TO THREATEN THE
MAINTENANCE OF THE BASIC WAGE STRUCTURE ESTABLISHED BY THE COLLECTIVE
BARGAINING CONTRACT," ID., AT 294, THE PARAMOUNT FEDERAL POLICY OF
ENCOURAGING COLLECTIVE BARGAINING PROSCRIBED APPLICATION OF THE STATE
LAW.  SEE ALSO MEAT DRIVERS V. UNITED STATES, 371 U.S. 94, 98; MILK
WAGON DRIVERS' UNION, LOCAL NO. 753 V. LAKE VALLEY FARM PRODUCTS, INC.,
311 U.S. 91. 

FN6  ONE ISSUE, FOR EXAMPLE, WOULD BE WHETHER THE RESTRAINT WAS
UNREASONABLE.  JUDICIAL PRONOUNCEMENTS REGARDING THE REASONABLENESS OF
RESTRAINTS ON HOURS OF BUSINESS ARE RELATIVELY FEW.  SOME CASES APPEAR
TO HAVE VIEWED SUCH RESTRAINTS AS TANTAMOUNT TO LIMITS ON HOURS OF WORK
AND THUS REASONABLE, EVEN THOUGH CONTAINED IN AGREEMENTS AMONG
COMPETITORS.  THUS IN CHICAGO BOARD OF TRADE V. UNITED STATES, 246 U.S.
231, THE COURT UPHELD A RULE OF A GRAIN EXCHANGE THAT HAD THE FORM OF A
RESTRICTION ON PRICES OF TRANSACTIONS OUTSIDE REGULAR TRADING HOURS BUT
WAS CHARACTERIZED BY THE COURT AS A RULE DESIGNED TO SHIFT TRANSACTIONS
TO THE REGULAR TRADING PERIOD, I.E., TO LIMIT HOURS OF OPERATION.  THE
COURT, PER MR. JUSTICE BRANDEIS, STATED: 

"EVERY BOARD OF TRADE AND NEARLY EVERY TRADE ORGANIZATION IMPOSES
SOME RESTRAINT UPON THE CONDUCT OF BUSINESS BY ITS MEMBERS.  THOSE
RELATING TO THE HOURS IN WHICH BUSINESS MAY BE DONE ARE COMMON; AND
THEY MAKE A SPECIAL APPEAL WHERE, AS HERE, THEY TEND TO SHORTEN THE
WORKING DAY OR, AT LEAST, LIMIT THE PERIOD OF MOST EXACTING ACTIVITY." 
246 U.S., AT 241.  SEE ALSO LA DUC V. TEAMSTERS & CHAUFFEURS UNION,
LOCAL NO. 43, 1946-1947 TRADE CAS., PARA. 57,631 (WIS. CIR. CT. 1947);
CIELESZ V. LOCAL 189, AMALGAMATED MEAT CUTTERS, 25 ILL. APP. 2D 491,
167 N.E.2D 302 (1960). 

OTHER CASES HAVE UPHELD OPERATING-HOURS RESTRAINTS IN FACTUAL
CIRCUMSTANCES THAT MAKE IT SEEM LIKELY THAT THE AGREEMENT AFFECTED
HOURS OF OPERATION AND HOURS OF WORK IN EQUAL MEASURE BUT WITHOUT
STRESSING THAT FACT.  SEE DUNKEL OIL CORP. V. ANICH, 1944-1945 TRADE
CAS., PARA. 57, 306 (D.C.E.D. ILL. 1944); BAKER V. RETAIL CLERKS ASSN.,
313 ILL. APP. 432, 40 N.E.2D 571 (1942); STOVALL V. MCCUTCHEN, 107 KY.
577, 54 S.W. 969 (1900). 

KOLD KIST, INC. V. AMALGAMATED MEAT CUTTERS, LOCAL NO. 421, 99 CAL.
APP. 2D 191, 221 P.2D 724 (1950), HELD UNREASONABLE A UNION-EMPLOYER
AGREEMENT LIMITING NIGHT SALES OF FROZEN POULTRY, WHICH HAD PREVIOUSLY
BEEN OBTAINED FROM THE PLAINTIFF-DISTRIBUTOR.  THE PLAINTIFF ALLEGED,
HOWEVER, THAT IT HAD BEEN SEVERELY AFFECTED, SINCE MANY STORES HAD
STOPPED CARRYING ITS PRODUCTS ENTIRELY DUE TO THE LACK OF STORAGE
FACILITIES IN WHICH TO KEEP THE POULTRY DURING HOURS IN WHICH SALE WAS
PROHIBITED, AND SUCH EFFECTS MAY BE ATYPICAL. 

THE DECIDED CASES THUS DO NOT APPEAR TO OFFER ANY EASY ANSWER TO THE
QUESTION WHETHER IN A PARTICULAR CASE AN OPERATING-HOURS RESTRAINT IS
UNREASONABLE. 

FN7  IN 1959, AND AGAIN IN 1961, NEW COLLECTIVE BARGAINING AGREEMENTS
CONTAINING THE CHALLENGED PROVISION WERE EXECUTED.  IN EACH INSTANCE,
JEWEL RESERVED ITS POSITION WITH RESPECT TO THIS LITIGATION. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING FROM THE OPINION BUT CONCURRING IN THE
REVERSAL IN NO. 48 AND CONCURRING IN THE JUDGMENT OF THE COURT IN NO.
240. 

STRIPPED OF ALL THE PEJORATIVE ADJECTIVES AND REDUCED TO THEIR
ESSENTIAL FACTS, BOTH PENNINGTON AND JEWEL TEA REPRESENT REFUSALS BY
JUDGES TO GIVE FULL EFFECT TO CONGRESSIONAL ACTION DESIGNED TO PROHIBIT
JUDICIAL INTERVENTION VIA THE ANTITRUST ROUTE IN LEGITIMATE COLLECTIVE
BARGAINING.  THE HISTORY OF THESE CASES FURNISHES FRESH EVIDENCE OF THE
OBSERVATION THAT IN THIS AREA, NECESSARILY INVOLVING A DETERMINATION OF
"WHAT PUBLIC POLICY IN REGARD TO THE INDUSTRIAL STRUGGLE DEMANDS,"
DUPLEX CO. V. DEERING, 254 U.S. 443, 479, 485 (DISSENTING OPINION OF
MR. JUSTICE BRANDEIS), "COURTS HAVE NEITHER THE APTITUDE NOR THE
CRITERIA FOR REACHING SOUND DECISIONS."  COX, LABOR AND THE ANTITRUST
LAWS - A PRELIMINARY ANALYSIS, 104 U. PA. L. REV.  252, 269-270 (1955);
SEE WINTER, COLLECTIVE BARGAINING AND COMPETITION:  THE APPLICATION OF
ANTITRUST STANDARDS TO UNION ACTIVITIES, 73 YALE L.J. 14 (1963). 

                                             I. 

PENNINGTON PRESENTS A CASE OF A UNION NEGOTIATING WITH THE EMPLOYERS
IN THE INDUSTRY FOR WAGES, FRINGE BENEFITS, AND WORKING CONDITIONS. 
DESPITE ALLEGATIONS OF CONSPIRACY, WHICH CONNOTES CLANDESTINE
ACTIVITIES, IT IS NO SECRET THAT THE UNITED MINE WORKERS, ACTING TO
FURTHER WHAT IT CONSIDERS TO BE THE BEST INTERESTS OF ITS MEMBERS,
ESPOUSES A PHILOSOPHY OF ACHIEVING UNIFORM HIGH WAGES, FRINGE BENEFITS,
AND GOOD WORKING CONDITIONS.  AS THE QUID PRO QUO FOR THIS, THE UNION
IS WILLING TO ACCEPT THE BURDENS AND CONSEQUENCES OF AUTOMATION. 
FURTHER, IT ACTS UPON THE VIEW THAT THE EXISTENCE OF MARGINAL OPERATORS
WHO CANNOT AFFORD THESE HIGH WAGES, FRINGE BENEFITS, AND GOOD WORKING
CONDITIONS DOES NOT SERVE THE BEST INTERESTS OF THE WORKING MINER BUT,
ON THE CONTRARY, DEPRESSES WAGE STANDARDS AND PERPETUATES UNDESIRABLE
CONDITIONS.  THIS HAS BEEN THE ARTICULATED POLICY OF THE UNION SINCE
1933.  SEE BARATZ, THE UNION AND THE COAL INDUSTRY 62-74 (1955).  THE
MINE WORKERS HAS OPENLY STATED ITS PREFERENCE, IF NEED BE, FOR A
REDUCED WORKING FORCE IN THE INDUSTRY, WITH THOSE EMPLOYED WORKING AT
HIGH WAGES, RATHER THAN FOR GREATER TOTAL EMPLOYMENT AT LESSER WAGE
RATES.  IBID.  SEE ALSO FOLLIARD, ROAR OF JOHN L. LEWIS SUBDUED AT 85,
THE WASHINGTON POST, FEB. 14, 1965, SEC. E, P. 3; HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE ON S.
RES. 274, 81ST CONG., 2D SESS., 1-10; HEARINGS BEFORE A SUBCOMMITTEE OF
THE HOUSE COMMITTEE ON EDUCATION AND LABOR, WELFARE OF MINERS, 80TH
CONG., 1ST SESS.; 1 PROCEEDINGS OF FORTY-SECOND CONSECUTIVE
CONSTITUTIONAL CONVENTION OF THE UNITED MINE WORKERS OF AMERICA, 9-14
(1956).  CONSISTENT WITH THIS VIEW, THE UNION WELCOMES AUTOMATION,
INSISTING ONLY THAT THE WORKERS PARTICIPATE IN ITS BENEFITS.  (FN1) 

JEWEL TEA PRESENTS ANOTHER AND DIFFERENT ASPECT OF COLLECTIVE
BARGAINING PHILOSOPHY.  THE CHICAGO LOCAL OF THE AMALGAMATED MEAT
CUTTERS BARGAINS FOR ITS MEMBERS WITH SMALL, INDEPENDENT SERVICE
BUTCHERS AS WELL AS LARGE AUTOMATED SELF-SERVICE CHAINS.  IT SEEKS FROM
BOTH A UNIFORM POLICY THAT NO FRESH MEAT BE SOLD AFTER 6 P.M.  THIS
UNION POLICY, AS MY BROTHER WHITE RECOGNIZES, ANTE, AT 694-696, HAS A
LONG HISTORY DATING BACK TO 1919 AND HAS GROWN OUT OF THE UNION'S
STRUGGLE TO REDUCE THE LONG, ARDUOUS HOURS WORKED BY BUTCHERS, WHICH IN
1919 WERE 81 HOURS PER WEEK.  IT TOOK A LONG STRIKE TO ACHIEVE THE
FIRST LIMITATION ON HOURS IN 1920, AND IT HAD REQUIRED HARD EXTENSIVE
COLLECTIVE BARGAINING SINCE THEN TO MAINTAIN THE POLICY AND FURTHER
REDUCE THE NUMBER OF HOURS WORKED.  WHILE IT IS CLAIMED BY JEWEL TEA, A
LARGE OPERATOR OF AUTOMATED SELF-SERVICE MARKETS, THAT IT CAN OPERATE
BEYOND THE SET HOURS WITHOUT INCREASING THE WORK OF BUTCHERS OR HAVING
OTHERS DO BUTCHERS' WORK - A CLAIM REJECTED BY THE TRIAL COURT AND THE
MAJORITY OF THIS COURT - IT IS CONCEDED, ON THIS RECORD, THAT THE
SMALL, INDEPENDENT SERVICE OPERATORS CANNOT DO SO.  THEREFORE TO THE
EXTENT THAT THE UNION'S UNIFORM POLICY LIMITING HOURS OF SELLING FRESH
MEAT HAS THE EFFECT OF AIDING ONE GROUP OF EMPLOYERS AT THE EXPENSE OF
ANOTHER, HERE THE UNION POLICY, UNLIKE THAT IN PENNINGTON, AIDS THE
SMALL EMPLOYERS AT THE EXPENSE OF THE LARGE. 

ALTHOUGH EVIDENCING THESE CONVERSE ECONOMIC EFFECTS, BOTH PENNINGTON
AND JEWEL TEA, AS THE COURT IN PENNINGTON, AND MY BROTHER WHITE'S
OPINION IN JEWEL TEA ACKNOWLEDGE, INVOLVE CONVENTIONAL COLLECTIVE
BARGAINING ON WAGES, HOURS, AND WORKING CONDITIONS - MANDATORY SUBJECTS
OF BARGAINING UNDER THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 452, AS
AMENDED, 29 U.S.C. SEC. 158(D) (1958 ED.).  YET THE MINE WORKERS'
ACTIVITY IN PENNINGTON WAS HELD SUBJECT TO AN ANTITRUST ACTION BY TWO
LOWER COURTS.  THIS DECISION WAS BASED UPON A JURY DETERMINATION THAT
THE UNION'S ECONOMIC PHILOSOPHY IS UNDESIRABLE, AND IT RESULTED IN AN
AWARD AGAINST THE UNION OF TREBLE DAMAGES OF $270,000 AND $55,000 EXTRA
FOR RESPONDENT'S ATTORNEYS' FEES.  IN JEWEL TEA, THE UNION HAS ALSO
BEEN SUBJECTED TO AN ANTITRUST SUIT IN WHICH A COURT OF APPEALS, WITH
ITS OWN NOTIONS AS TO WHAT BUTCHERS ARE LEGITIMATELY INTERESTED IN,
WOULD SUBJECT THE UNION TO A TREBLE DAMAGE JUDGMENT IN AN AS YET
UNDETERMINED AMOUNT.    REGRETFULLY THESE CASES, BOTH IN THE LOWER
COURTS AND IN EXPRESSIONS IN THE VARIOUS OPINIONS FILED TODAY IN THIS
COURT, AS I SHALL DEMONSTRATE, CONSTITUTE A THROWBACK TO PAST DAYS WHEN
COURTS ALLOWED ANTITRUST ACTIONS AGAINST UNIONS AND EMPLOYERS ENGAGED
IN CONVENTIONAL COLLECTIVE BARGAINING, BECAUSE "A JUDGE CONSIDERED" THE
UNION OR EMPLOYER CONDUCT IN QUESTION TO BE "SOCIALLY OR ECONOMICALLY"
OBJECTIONABLE.  DUPLEX CO. V. DEERING, SUPRA, AT 485 (DISSENTING
OPINION OF MR. JUSTICE BRANDEIS).  IT IS NECESSARY TO RECALL THAT
HISTORY TO PLACE THE CASES BEFORE US IN PROPER PERSPECTIVE. 

         II. 

THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C. SEC. 1 ET SEQ. (1958 ED.),
"WAS ENACTED IN THE ERA OF 'TRUSTS' AND OF 'COMBINATIONS' OF BUSINESSES
AND OF CAPITAL ORGANIZED AND DIRECTED TO CONTROL OF THE MARKET BY
SUPPRESSION OF COMPETITION IN THE MARKETING OF GOODS AND SERVICES, THE
MONOPOLISTIC TENDENCY OF WHICH HAD BECOME A MATTER OF PUBLIC CONCERN." 
APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 492-493.  DESPITE THE FACT
THAT THE ACT WAS THEREFORE AIMED AT BUSINESS COMBINATIONS, NOT LABOR
UNIONS, AND THAT A CAREFUL READING OF THE LEGISLATIVE HISTORY SHOWS
THAT THE INTERDICTION OF "EVERY" CONTRACT, COMBINATION OR CONSPIRACY IN
RESTRAINT OF TRADE WAS NOT INTENDED TO APPLY TO LABOR UNIONS AND THE
ACTIVITIES OF LABOR UNIONS IN THEIR OWN INTERESTS, AIMED AT PROMOTION
OF THE LABOR CONDITIONS OF THEIR MEMBERS, (FN2) THE COURT IN LOEWE V.
LAWLOR, 208 U.S. 274, HELD THAT THE ACT PROSCRIBED ACTIVITIES OF LABOR
UNIONS AND, IN THAT CASE, PROHIBITED THE USE OF A SECONDARY BOYCOTT AS
PART OF AN ORGANIZATIONAL CAMPAIGN.  CONGRESS RESPONDED BY ADOPTING IN
SECS. 6 AND 20 OF THE CLAYTON ACT, 38 STAT. 731, 738, 15 U.S.C. SEC.
17, 29 U.S.C. SEC. 52 (1958 ED.), WHAT HAS COME TO BE KNOWN AS THE
LABOR EXEMPTION FROM THE SHERMAN ACT.  SEE FRANKFURTER & GREENE, THE
LABOR INJUNCTION 139-144 (1930).  SECTION 6 STATES:  "THE LABOR OF A
HUMAN BEING IS NOT A COMMODITY OR ARTICLE OF COMMERCE.  NOTHING
CONTAINED IN THE ANTITRUST LAWS SHALL BE CONSTRUED TO FORBID THE
EXISTENCE AND OPERATION OF LABOR  ...  ORGANIZATIONS, INSTITUTED FOR
THE PURPOSES OF MUTUAL HELP  ... OR TO FORBID OR RESTRAIN INDIVIDUAL
MEMBERS OF SUCH ORGANIZATIONS FROM LAWFULLY CARRYING OUT THE LEGITIMATE
OBJECTS THEREOF  ...  ."  (FN3)  SECTION 20 BARRED FEDERAL COURT
INJUNCTIONS "IN ANY CASE BETWEEN AN EMPLOYER AND EMPLOYEES, OR BETWEEN
EMPLOYERS AND EMPLOYEES" INVOLVING A DISPUTE OVER TERMS AND CONDITIONS
OF EMPLOYMENT.  IT SPECIFICALLY PROHIBITED ISSUANCE OF INJUNCTIONS
AGAINST CERTAIN ACTIVITIES SUCH AS QUITTING WORK, PERSUADNG OTHERS TO
DO THE SAME, ETC., AND CONCLUDED WITH THE PROVISION:  "NOR SHALL ANY OF
THE ACTS SPECIFIED  ...  BE CONSIDERED OR HELD TO BE VIOLATIONS OF ANY
LAW OF THE UNITED STATES." 

THESE CONGRESSIONAL PROVISIONS, HOWEVER, WERE FRUSTRATED, AS
THOUGHTFUL COMMENTATORS HAVE ACKNOWLEDGED, BY DECISIONS OF THIS COURT. 
SEE, E.G., FRANKFURTER & GREENE, OP. CIT. SUPRA, AT 165-176; COX, OP.
CIT. SUPRA, AT 257-258.  SEE ALSO H.R. REP. NO. 669, 72D CONG., 1ST
SESS., 3, 7-8.   IN DUPLEX CO. V. DEERING, 254 U.S. 443, THE COURT WAS
AGAIN FACED WITH A SECONDARY BOYCOTT USED AS AN ORGANIZATIONAL TOOL,
THAT IS, A POST-CLAYTON ACT LAWLOR SITUATION.  DESPITE THE ACT, THE
COURT AGAIN HELD THE ACTIVITY TO VIOLATE THE SHERMAN ACT ON THE BASIS
THAT SEC. 6 DID NOT CONFER IMMUNITY FROM ANTITRUST LIABILITIES "WHERE
...  UNIONS DEPART FROM  ...  NORMAL AND LEGITIMATE OBJECTS  ... ."
ID., AT 469.  WHAT CONSTITUTES A "NORMAL AND LEGITIMATE" UNION OBJECT
WAS TO BE DETERMINED BY THE COURTS; THE DUPLEX COURT HELD THAT A
SECONDARY BOYCOTT WAS NOT SUCH AN OBJECT.  SECTION 20 WAS SWEPT AWAY ON
THE GROUND THAT IT ONLY APPLIED TO CONTROVERSIES BETWEEN "EMPLOYERS AND
EMPLOYEES," AND THAT "IT WOULD DO VIOLENCE TO THE  ...  LANGUAGE
EMPLOYED," ID., AT 472, TO HOLD THAT THE SECTION INCLUDED AN ATTEMPT TO
ORGANIZE A NEW EMPLOYER.  MR. JUSTICE BRANDEIS, IN DISSENT (JOINED BY
MR. JUSTICE HOLMES AND MR. JUSTICE CLARKE) FORCEFULLY ARGUED THAT THE
DECISION OF THE MAJORITY VIOLATED THE CLEAR CONGRESSIONAL PURPOSE TO
REMOVE FROM JUDGES THE DETERMINATION OF "WHAT PUBLIC POLICY IN REGARD
TO THE INDUSTRIAL STRUGGLE DEMANDS," ID., AT 485, AND TO "DECLARE THE
RIGHT OF INDUSTRIAL COMBATANTS TO PUSH THEIR STRUGGLE TO THE LIMITS OF
THE JUSTIFICATION OF SELF-INTEREST ...  ."  ID., AT 488. 

DUPLEX WAS FOLLOWED BY OTHER DECISIONS OF THIS COURT AND LOWER
FEDERAL COURTS WHICH SUSTAINED THE APPLICATION OF THE ANTITRUST LAWS TO
CURB BOTH PRIMARY AND SECONDARY UNION ACTIVITY.  SEE, E.G., BEDFORD CO.
V. STONE CUTTERS ASSN., 274 U.S. 37; CORONADO COAL CO. V. UNITED MINE
WORKERS, 268 U.S. 295; ALCO-ZANDER CO. V. AMALGAMATED CLOTHING WORKERS,
35 F.2D 203 (D.C.E.D. PA.); UNITED STATES V. RAILWAY EMPLOYEES' DEPT.,
283 F. 479 (D.C.N.D. ILL.). 

MR. JUSTICE BRANDEIS' DISSENT IN DUPLEX HAS, HOWEVER, CARRIED THE DAY
IN THE COURTS OF HISTORY AS EVIDENCED BY SUBSEQUENT CONGRESSIONAL
ACTION AND DECISIONS OF THIS COURT.  THE NORRIS-LAGUARDIA ACT, 47 STAT.
70, 29 U.S.C. SEC. 101 (1958 ED.), WAS PASSED BY CONGRESS IN 1932
EXPRESSLY TO OVERRULE THE MAJORITY OPINION OF DUPLEX AND THE CASES THAT
FOLLOWED IT AND TO AFFIRM THE PHILOSOPHY OF THE DISSENTERS IN THOSE
CASES.  SEE UNITED STATES V. HUTCHESON, 312 U.S. 219, 235-236; MILK
WAGON DRIVERS UNION V. LAKE VALLEY FARM PRODUCTS, INC., 311 U.S. 91,
102-103; NEW NEGRO ALLIANCE V. SANITARY GROCERY CO., 303 U.S. 552,
562.  (FN4)  ALTHOUGH FRAMED IN TERMS OF RESTRICTIONS ON THE USE OF
INJUNCTIONS, THIS COURT IN UNITED STATES V. HUTCHESON, 312 U.S. 219,
235-236, RECOGNIZED THAT THE ACT'S "UNDERLYING AIM  ...  WAS TO RESTORE
THE BROAD PURPOSE WHICH CONGRESS THOUGHT IT HAD FORMULATED IN THE
CLAYTON ACT BUT WHICH WAS FRUSTRATED  ...  ."  SEE H.R. REP. NO. 669,
72D CONG., 1ST SESS., 6-8.  AS THIS COURT HAS RECOGNIZED, CONGRESSIONAL
ENACTMENT OF THE NORRIS-LAGUARDIA ACT "WAS PROMPTED BY A DESIRE  ...
TO WITHDRAW FEDERAL COURTS FROM A TYPE OF CONTROVERSY FOR WHICH MANY
BELIEVED THEY WERE ILL-SUITED AND FROM PARTICIPATION IN WHICH, IT WAS
FEARED, JUDICIAL PRESTIGE MIGHT SUFFER."  MARINE COOKS & STEWARDS V.
PANAMA S.S. CO., 362 U.S. 365, 370, N. 7.  THE WAGNER ACT, 49 STAT.
449, AS AMENDED, 29 U.S.C. SEC. 151 ET SEQ. (1958 ED.), FOLLOWED THE
NORRIS-LAGUARDIA ACT AND GAVE AFFIRMATIVE PROTECTION AND ENCOURAGEMENT
TO UNION ORGANIZATION AND COLLECTIVE BARGAINING AND FURTHER REFLECTED
CONGRESSIONAL DESIRE TO NARROW THE JUDICIARY'S ROLE IN THE FORMULATION
OF LABOR POLICY BY ENTRUSTING PRINCIPAL ENFORCEMENT RESPONSIBILITY TO
AN ADMINISTRATIVE AGENCY. 

FOLLOWING ADOPTION OF THE NORRIS-LAGUARDIA AND WAGNER ACTS, IN APEX
HOSIERY CO. V. LEADER, 310 U.S. 469, THE COURT GAVE PROPER RECOGNITION
TO CONGRESSIONAL PURPOSE IN THIS AREA.  IN HOLDING THAT UNION USE OF A
SITDOWN STRIKE AS AN ORGANIZATIONAL TOOL DID NOT VIOLATE THE ANTITRUST
LAWS, EVEN THOUGH ATTENDED WITH VIOLENCE, THE COURT STATED: 

"STRIKES OR AGREEMENTS NOT TO WORK, ENTERED INTO BY LABORERS TO
COMPEL EMPLOYERS TO YIELD TO THEIR DEMANDS, MAY RESTRICT TO SOME EXTENT
THE POWER OF EMPLOYERS WHO ARE PARTIES TO THE DISPUTE TO COMPETE IN THE
MARKET WITH THOSE NOT SUBJECT TO SUCH DEMANDS.  BUT  ...  THE MERE FACT
OF SUCH RESTRICTIONS ON COMPETITION DOES NOT IN ITSELF BRING THE
PARTIES TO THE AGREEMENT WITHIN THE CONDEMNATION OF THE SHERMAN ACT
...  .  FURTHERMORE, SUCCESSFUL UNION ACTIVITY, AS FOR EXAMPLE
CONSUMMATION OF A WAGE AGREEMENT WITH EMPLOYERS, MAY HAVE SOME
INFLUENCE ON PRICE COMPETITION BY ELIMINATING THAT PART OF SUCH
COMPETITION WHICH IS BASED ON DIFFERENCES IN LABOR STANDARDS.  SINCE,
IN ORDER TO RENDER A LABOR COMBINATION EFFECTIVE IT MUST ELIMINATE THE
COMPETITION FROM NON-UNION MADE GOODS,  ...  AN ELIMINATION OF PRICE
COMPETITION BASED ON DIFFERENCES IN LABOR STANDARDS IS THE OBJECTIVE OF
ANY NATIONAL LABOR ORGANIZATION.  BUT THIS EFFECT ON COMPETITION HAS
NOT BEEN CONSIDERED TO BE THE KIND OF CURTAILMENT OF PRICE COMPETITION
PROHIBITED BY THE SHERMAN ACT."  (FN5)  310 U.S., AT 503-504. 

APEX WAS FOLLOWED BY THE COURT IN UNITED STATES V. HUTCHESON, SUPRA,
WHICH HAS BEEN RECOGNIZED AS A LANDMARK CASE.  MR. JUSTICE FRANKFURTER,
AFTER AN EXTENSIVE REVIEW OF THE HISTORY OF THE APPLICATION OF THE
ANTITRUST LAWS TO LABOR UNIONS, CONCLUDED, FOR THE COURT, THAT "WHETHER
TRADE UNION CONDUCT CONSTITUTES A VIOLATION OF THE SHERMAN LAW IS TO BE
DETERMINED ONLY BY READING THE SHERMAN LAW AND SEC. 20 OF THE CLAYTON
ACT AND THE NORRIS-LAGUARDIA ACT AS A HARMONIZING TEXT OF OUTLAWRY OF
LABOR CONDUCT."  312 U.S., AT 231.  THE COURT THEN WENT ON TO HOLD:"
"SO LONG AS A UNION ACTS IN ITS SELF-INTEREST AND DOES NOT COMBINE WITH
NON-LABOR GROUPS, (FN6) THE LICIT AND THE ILLICIT  ...  ARE NOT TO BE
DISTINGUISHED BY ANY JUDGMENT REGARDING THE WISDOM OR UNWISDOM, THE
RIGHTNESS OR WRONGNESS, THE SELFISHNESS OR UNSELFISHNESS OF THE END OF
WHICH THE PARTICULAR UNION ACTIVITIES ARE THE MEANS."  312 U.S., AT
232. 

IN ALLEN BRADLEY CO. V. UNION, 325 U.S. 797, THE ONLY RELEVANT CASE
IN THIS AREA SINCE HUTCHESON, THE COURT REAFFIRMED THE HUTCHESON
HOLDING "THAT A UNION'S EXEMPTION FROM THE SHERMAN ACT IS NOT TO BE
DETERMINED BY A JUDICIAL 'JUDGMENT REGARDING THE WISDOM OR UNWISDOM,
THE RIGHTNESS OR WRONGNESS, THE SELFISHNESS OR UNSELFISHNESS OF THE END
OF WHICH THE PARTICULAR UNION ACTIVITIES ARE THE MEANS.'  "  325 U.S.,
AT 810-811.  THE COURT, HOWEVER, HELD THAT THE UNION WAS SUBJECT TO
SHERMAN ACT LIABILITY ON THE FACTS OF THE CASE AS THERE WERE "INDUSTRY
WIDE UNDERSTANDINGS, LOOKING NOT MERELY TO TERMS AND CONDITIONS OF
EMPLOYMENT BUT ALSO TO PRICE AND MARKET CONTROL.  AGENCIES WERE SET UP
COMPOSED OF REPRESENTATIVES OF ALL THREE GROUPS (THE UNION-CONTRACTOR
MANUFACTURER COMBINATION) TO BOYCOTT RECALCITRANT LOCAL CONTRACTORS AND
MANUFACTURERS AND TO BAR FROM THE (NEW YORK CITY) AREA EQUIPMENT
MANUFACTURED OUTSIDE ITS BOUNDARIES."  325 U.S., AT 799-800.  AND "THIS
COMBINATION OF BUSINESS MEN" "INTENDED TO AND DID RESTRAIN TRADE IN AND
MONOPOLIZE THE SUPPLY OF ELECTRICAL EQUIPMENT IN THE NEW YORK CITY AREA
TO THE EXCLUSION OF EQUIPMENT MANUFACTURED IN AND SHIPPED FROM OTHER
STATES, AND DID ALSO CONTROL ITS PRICE AND DISCRIMINATE BETWEEN ITS
WOULD-BE CUSTOMERS."  325 U.S., AT 800-801.  THUS ALLEN BRADLEY
INVOLVED TWO ELEMENTS:  (1) UNION PARTICIPATION IN PRICE FIXING AND
MARKET ALLOCATION, WITH THE ONLY UNION INTEREST BEING THE INDIRECT
PROSPECT THAT THESE ANTICOMPETITIVE DEVICES MIGHT INCREASE EMPLOYERS'
PROFITS WHICH MIGHT THEN TRICKLE DOWN TO THE EMPLOYEES, (2)
ACCOMPLISHED BY THE UNION'S JOINING A COMBINATION OR CONSPIRACY OF THE
EMPLOYERS.  (FN7) 

TO ROUND OUT THIS HISTORY IT SHOULD BE NOTED THAT, WHILE REJECTING
ATTEMPTS TO RESTRICT OR ELIMINATE THE LABOR EXEMPTION FROM THE
ANTITRUST LAWS, (FN8) CONGRESS, IN THE 1947 TAFT-HARTLEY ACT, 61 STAT.
136, 29 U.S.C. SEC. 141 ET SEQ. (1958 ED.), AND THE 1959 LANDRUM
GRIFFIN ACT, 73 STAT. 519, 29 U.S.C. SEC. 401 ET SEQ. (1958 ED., SUPP.
V), HAS TAKEN STEPS TO PROSCRIBE UNION ACTIVITIES WHICH, IN ITS
LEGISLATIVE JUDGMENT, IT CONSIDERS TO BE DETRIMENTAL TO THE PUBLIC
GOOD.  CONSISTENT, HOWEVER, WITH ITS POLICY OF NOT TURNING THE
LAWFULNESS OF UNION CONDUCT ON SUBJECTIVE JUDGMENTS OF PURPOSE OR
EFFECT, A POLICY EXPRESSED IN SECS. 6 AND 20 OF THE CLAYTON ACT AND IN
THE NORRIS-LAGUARDIA ACT, CONGRESS DID THIS BY MAKING UNLAWFUL CERTAIN
SPECIFIC UNION ACTIVITIES UNDER THE NATIONAL LABOR RELATIONS ACT. 
CONGRESS, FOR EXAMPLE, HAS CURBED THE SECONDARY BOYCOTT IN SEC.
8(B)(4)(B) OF THE NATIONAL LABOR RELATIONS ACT, PRESERVING FROM
CONDEMNATION CERTAIN SECONDARY ACTIVITIES DEEMED LEGITIMATE.  (FN9)
THE JURISDICTIONAL STRIKE IS REGULATED BY SEC. 8(B)(4)(D) IN
CONJUNCTION WITH SEC. 10(K) OF THE ACT.  (FN10)  UNION OPPOSITION TO
AUTOMATION HAS BEEN REGULATED TO THE LIMITED EXTENT CONGRESS WISHED TO
DO SO BY SEC. 8(B)(6) OF THE ACT.  (FN11) STRIKES AND PRESSURE BY
MINORITY UNIONS FOR ORGANIZATION OR RECOGNITION ARE CONTROLLED BY SECS.
8(B)(4)(C) AND 8(B)(7) OF THE ACT.  (FN12)  UNION RESTRICTIONS ON
CONTRACTING OUT AND SUBCONTRACTING OF WORK ARE DELINEATED BY SEC. 8(E)
OF THE ACT.  (FN13)  FOR THE ISSUE PRESENTLY BEFORE US, IT IS MOST
SIGNIFICANT THAT IN ENACTING THIS LAST PROHIBITION, CONGRESS IN THE
EXERCISE OF ITS LEGISLATIVE JUDGMENT, SPECIFICALLY EXCEPTED THE UNUSUAL
SITUATIONS EXISTING IN THE GARMENT AND BUILDING INDUSTRIES.  SUCH
EXCEPTIONS FOR PARTICULAR INDUSTRIES, WHICH MAY BE PROPER SUBJECTS OF
LEGISLATIVE DISCRETION, WOULD, OF COURSE, BE MOST DIFFICULT FOR COURTS
TO MAKE IN EMPLOYING A BROAD PROSCRIPTION LIKE THE SHERMAN ACT. 

  III. 

IN MY VIEW, THIS HISTORY SHOWS A CONSISTENT CONGRESSIONAL PURPOSE TO
LIMIT SEVERELY JUDICIAL INTERVENTION IN COLLECTIVE BARGAINING UNDER
COVER OF THE WIDE UMBRELLA OF THE ANTITRUST LAWS, AND, RATHER, TO DEAL
WITH WHAT CONGRESS DEEMED TO BE SPECIFIC ABUSES ON THE PART OF LABOR
UNIONS BY SPECIFIC PROSCRIPTIONS IN THE LABOR STATUTES.  I BELIEVE THAT
THE COURT SHOULD RESPECT THIS HISTORY OF CONGRESSIONAL PURPOSE AND
SHOULD REAFFIRM THE COURT'S HOLDINGS IN APEX AND HUTCHESON WHICH,
UNLIKE EARLIER DECISIONS, GAVE EFFECT TO, RATHER THAN FRUSTRATED, THE
CONGRESSIONAL DESIGN.  THE SOUND APPROACH OF HUTCHESON IS THAT THE
LABOR EXEMPTION FROM THE ANTITRUST LAWS DERIVES FROM A SYNTHESIS OF ALL
PERTINENT CONGRESSIONAL LEGISLATION - THE NATURE OF THE SHERMAN ACT
ITSELF, (FN14) SECS. 6 AND 20 OF THE CLAYTON ACT, THE NORRIS-LAGUARDIA
ACT, THE FAIR LABOR STANDARDS ACT, (FN15) THE WALSH-HEALEY (FN16) AND
DAVIS-BACON (FN17) ACTS, AND THE WAGNER ACT WITH ITS TAFT-HARTLEY AND
LANDRUM-GRIFFIN AMENDMENTS.  THIS LAST STATUTE, IN PARTICULAR, PROVIDES
THAT BOTH EMPLOYERS AND UNIONS MUST BARGAIN OVER "WAGES, HOURS, AND
OTHER TERMS AND CONDITIONS OF EMPLOYMENT."  29 U.S.C. SECS. 158(A)(5),
(B)(3), (D) (1958 ED.).  FOLLOWING THE SOUND ANALYSIS OF HUTCHESON, THE
COURT SHOULD HOLD THAT, IN ORDER TO EFFECTUATE CONGRESSIONAL INTENT,
COLLECTIVE BARGAINING ACTIVITY CONCERNING MANDATORY SUBJECTS OF
BARGAINING UNDER THE LABOR ACT IS NOT SUBJECT TO THE ANTITRUST LAWS. 
(FN18)  THIS RULE FLOWS DIRECTLY FROM THE HUTCHESON HOLDING THAT A
UNION ACTING AS A UNION, IN THE INTERESTS OF ITS MEMBERS, AND NOT
ACTING TO FIX PRICES OR ALLOCATE MARKETS IN AID OF AN EMPLOYER
CONSPIRACY TO ACCOMPLISH THESE OBJECTS, WITH ONLY INDIRECT UNION
BENEFITS, IS NOT SUBJECT TO CHALLENGE UNDER THE ANTITRUST LAWS.  TO
HOLD THAT MANDATORY COLLECTIVE BARGAINING IS COMPLETELY PROTECTED WOULD
EFFECTUATE THE CONGRESSIONAL POLICIES OF ENCOURAGING FREE COLLECTIVE
BARGAINING, SUBJECT ONLY TO SPECIFIC RESTRICTIONS CONTAINED IN THE
LABOR LAWS, AND OF LIMITING JUDICIAL INTERVENTION IN LABOR MATTERS VIA
THE ANTITRUST ROUTE - AN INTERVENTION WHICH NECESSARILY UNDER THE
SHERMAN ACT PLACES ON JUDGES AND JURIES THE DETERMINATION OF "WHAT
PUBLIC POLICY IN REGARD TO THE INDUSTRIAL STRUGGLE DEMANDS."  DUPLEX
CO. V. DEERING, SUPRA, AT 485 (DISSENTING OPINION OF MR. JUSTICE
BRANDEIS).  SEE WINTER, COLLECTIVE BARGAINING AND COMPETITION:  THE
APPLICATION OF ANTITRUST STANDARDS TO UNION ACTIVITIES, 73 YALE L.J. 14
(1963). 

IS NOT NATIONAL POLICY TO FORCE WORKERS TO COMPETE IN THE "SALE" OF
THEIR LABOR AS IF IT WERE A COMMODITY OR ARTICLE OF COMMERCE.  THE
POLICY WAS CONFIRMED AND EXTENDED IN THE SUBSEQUENT NORRIS-LAGUARDIA
ACT.  OTHER FEDERAL LEGISLATION ESTABLISHING MINIMUM WAGES AND MAXIMUM
HOURS TAKES LABOR STANDARDS OUT OF COMPETITION.  THE FAIR LABOR
STANDARDS ACT, 52 STAT. 1060, AS AMENDED, 29 U.S.C. SECS. 201-219 (1958
ED.), CLEARLY STATES THAT THE EXISTENCE OF "LABOR CONDITIONS"
INSUFFICIENT FOR A "MINIMUM STANDARD OF LIVING  ...  CONSTITUTES AN
UNFAIR METHOD OF COMPETITION IN COMMERCE."  29 U.S.C. SEC. 202(A). 
MOREOVER, THIS COURT HAS RECOGNIZED THAT IN THE WALSH-HEALEY ACT, 49
STAT. 2036, AS AMENDED, 41 U.S.C. SECS. 35-45 (1958 ED.), CONGRESS
BROUGHT TO BEAR THE "LEVERAGE OF THE GOVERNMENT'S IMMENSE PURCHASING
POWER TO RAISE LABOR STANDARDS" BY ELIMINATING SUBSTANDARD PRODUCERS
FROM ELIGIBILITY FOR PUBLIC CONTRACTS.  ENDICOTT JOHNSON CORP. V.
PERKINS, 317 U.S. 501, 507.  SEE ALSO DAVIS-BACON ACT, 46 STAT. 1494,
40 U.S.C. SEC. 276A (1958 ED.).  THE NATIONAL LABOR RELATIONS ACT
ITSELF CLEARLY EXPRESSES ONE OF ITS PURPOSES TO BE "THE STABILIZATION
OF COMPETITIVE WAGE RATES AND WORKING CONDITIONS WITHIN AND BETWEEN
INDUSTRIES."  29 U.S.C.  SEC. 151.  IN SHORT, BUSINESS COMPETITION
BASED ON WAGE COMPETITION IS NOT NATIONAL POLICY AND "THE MERE FACT OF
SUCH RESTRICTIONS ON COMPETITION DOES NOT  ...  BRING THE PARTIES  ...
WITHIN THE CONDEMNATION OF THE SHERMAN ACT."  APEX HOSIERY CO. V.
LEADER, SUPRA, AT 503. 

THE NATIONAL LABOR RELATIONS ACT ALSO DECLARES IT TO BE THE POLICY OF
THE UNITED STATES TO PROMOTE THE ESTABLISHMENT OF WAGES, HOURS, AND
OTHER TERMS AND CONDITIONS OF EMPLOYMENT BY FREE COLLECTIVE BARGAINING
BETWEEN EMPLOYERS AND UNIONS.  THE ACT FURTHER PROVIDES THAT BOTH
EMPLOYERS AND UNIONS MUST BARGAIN ABOUT SUCH MANDATORY SUBJECTS OF
BARGAINING.  THIS NATIONAL SCHEME WOULD BE VIRTUALLY DESTROYED BY THE
IMPOSITION OF SHERMAN ACT CRIMINAL AND CIVIL PENALTIES UPON EMPLOYERS
AND UNIONS ENGAGED IN SUCH COLLECTIVE BARGAINING.  TO TELL THE PARTIES
THAT THEY MUST BARGAIN ABOUT A POINT BUT MAY BE SUBJECT TO ANTITRUST
PENALTIES IF THEY REACH AN AGREEMENT IS TO STULTIFY THE CONGRESSIONAL
SCHEME. 

MOREOVER, MANDATORY SUBJECTS OF BARGAINING ARE ISSUES AS TO WHICH
UNION STRIKES MAY NOT BE ENJOINED BY EITHER FEDERAL OR STATE COURTS. 
(FN19)  TO SAY THAT THE UNION CAN STRIKE OVER SUCH ISSUES BUT THAT BOTH
IT AND THE EMPLOYER ARE SUBJECT TO POSSIBLE ANTITRUST PENALTIES FOR
MAKING COLLECTIVE BARGAINING AGREEMENTS CONCERNING THEM IS TO ASSERT
THAT CONGRESS INTENDED TO PERMIT THE PARTIES TO COLLECTIVE BARGAINING
TO WAGE INDUSTRIAL WARFARE BUT TO PROHIBIT THEM FROM PEACEFULLY
SETTLING THEIR DISPUTES.  THIS WOULD NOT ONLY BE IRRATIONAL BUT WOULD
FLY IN THE FACE OF THE CLEAR CONGRESSIONAL INTENT OF PROMOTING "THE
PEACEFUL SETTLEMENT OF INDUSTRIAL DISPUTES BY SUBJECTING LABOR
MANAGEMENT CONTROVERSIES TO THE MEDIATORY INFLUENCE OF NEGOTIATION." 
FIBREBOARD PAPER PRODS.  CORP. V. LABOR BOARD, 379 U.S. 203, 211. 

CONGRESS HAS ALSO RECOGNIZED THAT SOME LABOR ORGANIZATIONS SEEK, AS
IN PENNINGTON, THROUGH INDUSTRY-WIDE BARGAINING, TO ELIMINATE
DIFFERENCES IN LABOR STANDARDS AMONG EMPLOYERS.  THIS WAS COMMON
KNOWLEDGE IN 1935 WHEN THE WAGNER ACT WAS ENACTED.  THE AIMS AND
PRACTICES OF UNIONS ENGAGING IN INDUSTRY-WIDE BARGAINING WERE WELL
KNOWN IN 1947 AT THE TIME OF THE TAFT-HARTLEY REVISION.  THEN AND ON
SUBSEQUENT OCCASIONS CONGRESS REFUSED TO ENACT BILLS TO RESTRICT OR
PROHIBIT INDUSTRY-WIDE BARGAINING.  SEE, E.G., H.R. 3020, 80TH CONG.,
1ST SESS., SECS. 2(16), 9(F)(1), 12(A)(3)(A), 12(A)(4), H.R. REP. NO.
245, 80TH CONG., 1ST SESS., 24, 73; NOTE 8, SUPRA, AND CITATIONS
CONTAINED THEREIN; H.R. 8449, 82D CONG., 2D SESS.  NOR CAN IT BE
SERIOUSLY ARGUED THAT MULTI-EMPLOYER BARGAINING, AS IN JEWEL TEA,
INTRODUCES AN ILLEGAL ELEMENT OR IS OTHERWISE OPPOSED TO THE NATIONAL
LABOR POLICY.  INDEED, THIS COURT, TO IMPLEMENT CONGRESSIONAL POLICY
SANCTIONING MULTI-EMPLOYER BARGAINING, PERMITTED EMPLOYERS TO RESORT,
UNDER CERTAIN CIRCUMSTANCES, TO LOCKOUTS TO PROTECT THE INTEGRITY OF
THE MULTI-EMPLOYER BARGAINING UNIT.  SEE LABOR BOARD V. TRUCK DRIVERS
UNION, NO. 449, 353 U.S. 87; LABOR BOARD V. BROWN, 380 U.S. 278. 
(FN20)  THE WISDOM OF PERMITTING INDUSTRY-WIDE AND MULTI-EMPLOYER
BARGAINING IS FOR CONGRESS TO DECIDE, UNLESS THIS COURT IS TO RETURN TO
THE DISCREDITED APPROACH OF THE MAJORITY IN DUPLEX AND SUBSTITUTE ITS
NOTION FOR THAT OF CONGRESS AS TO HOW UNIONS AND EMPLOYERS SHOULD
CONDUCT THEIR COLLECTIVE BARGAINING. 

  IV. 

THE COURT IN PENNINGTON TODAY IGNORES THIS HISTORY OF THE DISCREDITED
JUDICIAL ATTEMPT TO APPLY THE ANTITRUST LAWS TO LEGITIMATE COLLECTIVE
BARGAINING ACTIVITY, AND IT FLOUTS THE CLEARLY EXPRESSED CONGRESSIONAL
INTENT THAT, SINCE "THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR
ARTICLE OF COMMERCE," (FN21) THE ANTITRUST LAWS DO NOT PROSCRIBE, AND
THE NATIONAL LABOR POLICY AFFIRMATIVELY PROMOTES, THE "ELIMINATION OF
PRICE COMPETITION BASED ON DIFFERENCES IN LABOR STANDARDS," APEX
HOSIERY CO. V. LEADER, SUPRA, AT 503.  WHILE PURPORTING TO RECOGNIZE
THE INDISPUTABLE FACT THAT THE ELIMINATION OF EMPLOYER COMPETITION
BASED ON SUBSTANDARD LABOR CONDITIONS IS A PROPER LABOR UNION OBJECTIVE
ENDORSED BY OUR NATIONAL LABOR POLICY AND THAT, THEREFORE, "A UNION MAY
MAKE WAGE AGREEMENTS WITH A MULTI-EMPLOYER BARGAINING UNIT AND MAY IN
PURSUANCE OF ITS OWN UNION INTERESTS SEEK TO OBTAIN THE SAME TERMS FROM
OTHER EMPLOYERS," PENNINGTON, ANTE, AT 665, THE COURT HOLDS THAT "A
UNION FORFEITS ITS EXEMPTION FROM THE ANTITRUST LAWS WHEN IT IS CLEARLY
SHOWN THAT IT HAS AGREED WITH ONE SET OF EMPLOYERS TO IMPOSE A CERTAIN
WAGE SCALE ON OTHER BARGAINING UNITS."  IBID. 

THIS RULE SEEMS TO ME CLEARLY CONTRARY TO THE CONGRESSIONAL PURPOSE
MANIFESTED BY THE LABOR STATUTES, AND IT WILL SEVERELY RESTRICT FREE
COLLECTIVE BARGAINING.  SINCE COLLECTIVE BARGAINING INEVITABLY INVOLVES
AND REQUIRES DISCUSSION OF THE IMPACT OF THE WAGE AGREEMENT REACHED
WITH A PARTICULAR EMPLOYER OR GROUP OF EMPLOYERS UPON COMPETING
EMPLOYERS, THE EFFECT OF THE COURT'S DECISION WILL BE TO BAR A BASIC
ELEMENT OF COLLECTIVE BARGAINING FROM THE CONFERENCE ROOM.  IF A UNION
AND EMPLOYER ARE PREVENTED FROM DISCUSSING AND AGREEING UPON ISSUES
WHICH ARE, IN THE GREAT MAJORITY OF CASES, AT THE CENTRAL CORE OF
BARGAINING, UNILATERAL FORCE WILL INEVITABLY BE SUBSTITUTED FOR
RATIONAL DISCUSSION AND AGREEMENT.  PLAINLY AND SIMPLY, THE COURT WOULD
SUBJECT BOTH UNIONS AND EMPLOYERS TO ANTITRUST SANCTIONS, CRIMINAL AS
WELL AS CIVIL, IF IN COLLECTIVE BARGAINING THEY CONCLUDED A WAGE
AGREEMENT AND, AS PART OF THE AGREEMENT, THE UNION HAS UNDERTAKEN TO
USE ITS BEST EFFORTS TO HAVE THIS WAGE ACCEPTED BY OTHER EMPLOYERS IN
THE INDUSTRY.  INDEED, THE DECISION TODAY EVEN GOES BEYOND THIS.  UNDER
SETTLED ANTITRUST PRINCIPLES WHICH ARE ACCEPTED BY THE COURT AS
APPROPRIATE AND APPLICABLE, WHICH WERE THE BASIS FOR JURY INSTRUCTIONS
IN PENNINGTON, AND WHICH WILL GOVERN IT UPON REMAND, THERE NEED NOT BE
DIRECT EVIDENCE OF AN EXPRESS AGREEMENT.  RATHER THE EXISTENCE OF SUCH
AN AGREEMENT, EXPRESS OR IMPLIED, MAY BE INFERRED FROM THE CONDUCT OF
THE PARTIES.   SEE, E.G., INTERSTATE CIRCUIT, INC. V. UNITED STATES,
306 U.S. 208; AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781;
UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131; THEATRE
ENTERPRISES, INC.  V. PARAMOUNT FILM DISTRIBUTING CORP., 346 U.S. 537. 
OR, AS MY BROTHER DOUGLAS, CONCURRING IN PENNINGTON, WOULD HAVE IT,
CONDUCT OF THE PARTIES COULD BE PRIMA FACIE EVIDENCE OF AN ILLEGAL
AGREEMENT.  ANTE, AT 673.  AS THE FACTS OF PENNINGTON ILLUSTRATE, THE
JURY IS THEREFORE AT LIBERTY TO INFER SUCH AN AGREEMENT FROM "CLEAR"
EVIDENCE THAT A UNION'S PHILOSOPHY THAT HIGH WAGES AND MECHANIZATION
ARE DESIRABLE HAS BEEN ACCEPTED BY A GROUP OF EMPLOYERS AND THAT THE
UNION HAS ATTEMPTED TO ACHIEVE LIKE ACCEPTANCE FROM OTHER EMPLOYERS. 
FOR, AS I HAVE POINTED OUT, STRIPPED OF ALL ADJECTIVES, THIS IS WHAT
PENNINGTON PRESENTS.  YET THE COURT TODAY HOLDS "THE ALLEGED AGREEMENT
BETWEEN UMW AND THE LARGE OPERATORS TO SECURE UNIFORM LABOR STANDARDS
THROUGHOUT THE INDUSTRY, IF PROVED, WAS NOT EXEMPT FROM THE ANTITRUST
LAWS."  ANTE, AT 669. 

THE RATIONAL THING FOR AN EMPLOYER TO DO, WHEN FACED WITH UNION
DEMANDS HE THINKS HE CANNOT MEET, IS TO EXPLAIN WHY, IN ECONOMIC TERMS,
HE BELIEVES THAT HE CANNOT AGREE TO THE UNION REQUESTS.  INDEED, THE
LABOR ACT'S COMPULSION TO BARGAIN IN GOOD FAITH REQUIRES THAT HE
MEANINGFULLY ADDRESS HIMSELF TO THE UNION'S REQUESTS.  SEE LABOR BOARD
V. TRUITT MFG. CO., 351 U.S. 149.  A RECURRING AND MOST UNDERSTANDABLE
REASON GIVEN BY EMPLOYERS FOR THEIR RESISTANCE TO UNION DEMANDS IS THAT
COMPETITIVE FACTORS PREVENT THEM FROM ACCEPTING THE UNION'S PROPOSED
TERMS.  UNDER THE COURT'S HOLDING TODAY, HOWEVER, SUCH A STATEMENT BY
AN EMPLOYER MAY START BOTH THE EMPLOYER AND UNION ON THE ROAD TO
ANTITRUST SANCTIONS, CRIMINAL AND CIVIL.  FOR A JURY MAY WELL INTERPRET
SUCH DISCUSSION AND SUBSEQUENT UNION ACTION AS SHOWING AN IMPLICIT OR
SECRET AGREEMENT TO IMPOSE UNIFORM STANDARDS ON OTHER EMPLOYERS.  NOR
DOES THE COURT'S REQUIREMENT THAT THERE BE "DIRECT OR INDIRECT EVIDENCE
OF THE CONSPIRACY," ANTE, AT 665, N. 2 - WHATEVER THOSE UNDEFINED TERMS
IN THE OPINION MAY MEAN - PROVIDE ANY SUBSTANTIAL SAFEGUARD FOR
UNINHIBITED COLLECTIVE BARGAINING DISCUSSIONS.  IN PENNINGTON ITSELF,
THE TRIAL COURT INSTRUCTED THE JURY THAT A UNION'S UNILATERAL ACTIONS
DID NOT SUBJECT IT TO ANTITRUST SANCTIONS, AND YET THE JURY READILY
INFERRED A "CONSPIRACY" FROM THE "DIRECT OR INDIRECT EVIDENCE" OF THE
UNION'S PUBLICLY STATED POLICY IN FAVOR OF HIGH WAGES AND
MECHANIZATION, ITS COLLECTIVE BARGAINING AGREEMENT WITH A GROUP OF
EMPLOYERS ESTABLISHING HIGH WAGES, AND ITS ATTEMPTS TO OBTAIN SIMILAR
HIGH WAGES FROM OTHER EMPLOYERS. 

FURTHERMORE, IN ORDER TO DETERMINE WHETHER, UNDER THE COURT'S
STANDARD, A UNION IS ACTING UNILATERALLY OR PURSUANT TO AN AGREEMENT
WITH EMPLOYERS, JUDGES AND JURIES WILL INEVITABLY BE DRAWN TO TRY TO
DETERMINE THE PURPOSE AND MOTIVE OF UNION AND EMPLOYER COLLECTIVE
BARGAINING ACTIVITIES.  THE HISTORY I HAVE SET OUT, HOWEVER, MAKES
CLEAR THAT CONGRESS INTENDED TO FORECLOSE JUDGES AND JURIES FROM
ROAMING AT LARGE IN THE AREA OF COLLECTIVE BARGAINING, UNDER COVER OF
THE ANTITRUST LAWS, BY INQUIRY INTO THE PURPOSE AND MOTIVE OF THE
EMPLOYER AND UNION BARGAINING ON MANDATORY SUBJECTS.  SUCH ROAMING AT
LARGE, EXPERIENCE SHOWS, LEADS TO A SUBSTITUTION OF JUDICIAL FOR
CONGRESSIONAL JUDGMENT AS TO HOW COLLECTIVE BARGAINING SHOULD OPERATE. 

THE CASE OF ALCO-ZANDER CO. V. AMALGAMATED CLOTHING WORKERS, 35 F.2D
203 (D.C.E.D. PA.), IS ONE EXAMPLE OF JUDICIAL INADEQUACY IN THIS
SENSITIVE ECONOMIC AREA.  THAT CASE INVOLVED A SITUATION WHERE THE
UNIONIZED GARMENT INDUSTRY IN NEW YORK WAS BEING UNDERSOLD BY THE LOWER
PRICED, NONUNION GARMENT INDUSTRY OF PHILADELPHIA.  THE UNION, FEARING
FOR THE FUTURE OF THE JOBS OF ITS MEMBERS EMPLOYED IN THE UNIONIZED NEW
YORK INDUSTRY, STARTED AN ORGANIZING DRIVE IN PHILADELPHIA.  A FEDERAL
DISTRICT COURT ENJOINED, AS A VIOLATION OF THE ANTITRUST LAWS, THE
UNION'S ORGANIZATIONAL CAMPAIGN WHICH CONSISTED OF PRIMARY STRIKES AND
PEACEFUL PICKETING.  THE COURT DECLARED THAT "THE PRIMARY PURPOSE OF
THE CAMPAIGN FOR THE UNIONIZATION OF THE PHILADELPHIA MARKET WAS THE
PROTECTION OF THE UNIONIZED MARKETS IN OTHER STATES," AND THAT "THE
OBJECT OF THE STRIKES WAS TO PUT AN END TO ALL PRODUCTION IN
PHILADELPHIA UNDER NONUNION CONDITIONS AND ONLY TO PERMIT IT TO BE
RESUMED IF AND WHEN THE MANUFACTURERS WERE WILLING TO OPERATE UPON AN
UNION BASIS AND UNDER UNION WAGE SCALES."  35 F.2D, AT 205.  IT IS
CLEAR, THEREFORE, THAT THE COURT ENJOINED THE UNION'S ACTIVITIES AS
ANTITRUST VIOLATIONS BECAUSE IT BELIEVED THAT THIS PURPOSE AND OBJECT
WAS SOCIALLY AND ECONOMICALLY UNDESIRABLE.  ALCO-ZANDER AND OTHER
SIMILAR CASES (FN22) WERE ALMOST UNIVERSALLY CONDEMNED AS STRIKING
EXAMPLES OF JUDICIAL INTERFERENCE IN LEGITIMATE COLLECTIVE BARGAINING
VIA THE ANTITRUST LAWS BECAUSE OF JUDGE-MADE NOTIONS AS TO THE ECONOMIC
WISDOM OF THE UNION CONDUCT.  SEE, E.G., BERMAN, LABOR AND THE SHERMAN
ACT 248-259 (1930); COMMENT, 24 ILL. L. REV. 925 (1930).  THERE IS NO
DOUBT THAT THE NORRIS-LAGUARDIA ACT WAS DESIGNED TO OVERRULE THEM.  SEE
H.R. REP. NO. 669, 72D CONG., 1ST SESS., 3-7; S. REP. NO. 163, 72D
CONG., 1ST SESS., 9-10.    CONGRESS IN THE NORRIS-LAGUARDIA ACT AND
OTHER LABOR STATUTES, AS THIS COURT RECOGNIZED IN APEX AND HUTCHESON,
DETERMINED THAT JUDICIAL NOTIONS OF THE SOCIAL AND ECONOMIC
DESIRABILITY OF UNION ACTION SHOULD NOT GOVERN ANTITRUST LIABILITY IN
THE AREA OF COLLECTIVE BARGAINING.  THE FACT THAT A PURPOSE-MOTIVE
APPROACH NECESSARILY OPENS THE DOOR TO BASING CRIMINAL OR CIVIL
PENALTIES UNDER THE SHERMAN ACT ON JUST SUCH A DETERMINATION AND TO
MAKING COURTS THE ARBITERS OF OUR NATIONAL LABOR POLICY IS BORNE OUT
NOT ONLY BY THE HISTORY OF CASES LIKE ALCO-ZANDER BUT ALSO BY THE CASES
DECIDED TODAY.    IN PENNINGTON, CENTRAL TO THE ALLEGED CONSPIRACY IS
THE CLAIM THAT HOURLY WAGE RATES AND FRINGE BENEFITS WERE SET AT A
LEVEL DESIGNED TO ELIMINATE THE COMPETITION OF THE SMALLER NONUNION
COMPANIES BY MAKING THE LABOR COST TOO HIGH FOR THEM TO PAY.  INDEED,
THE TRIAL JUDGE CHARGED THAT THERE WAS NO VIOLATION OF THE SHERMAN ACT
IN THE ESTABLISHING OF WAGES AND WELFARE PAYMENTS THROUGH THE NATIONAL
CONTRACT, "PROVIDED" THE MINE WORKERS AND THE MAJOR COAL PRODUCERS HAD
NOT AGREED TO FIX "HIGH" RATES "IN ORDER TO DRIVE THE SMALL COAL
OPERATORS OUT OF BUSINESS."  UNDER SUCH AN INSTRUCTION, IF THE JURY
FOUND THE WAGE SCALE TOO "HIGH" IT COULD IMPUTE TO THE UNION THE
UNLAWFUL PURPOSE OF PUTTING THE NONUNION OPERATORS OUT OF BUSINESS.  IT
IS CLEAR THAT THE EFFECT OF THE INSTRUCTION THEREFORE, WAS TO INVITE 12
JURYMEN TO BECOME ARBITERS OF THE ECONOMIC DESIRABILITY OF THE WAGE
SCALE IN THE NATION'S COAL INDUSTRY.  THE COURT WOULD SUSTAIN THE
JUDGMENT BASED ON THIS CHARGE AND THEREBY PUT ITS STAMP OF APPROVAL ON
THIS ROLE FOR COURTS AND JURIES. 

THE COURT'S APPROVAL OF JUDGES AND JURIES DETERMINING THE PERMISSIBLE
WAGE SCALE FOR WORKING MEN IN AN INDUSTRY IS CONFIRMED BY THE COURT'S
EXPRESS STATEMENT "THERE ARE LIMITS TO WHAT A UNION OR AN EMPLOYER MAY
OFFER OR EXTRACT IN THE NAME OF WAGES," PENNINGTON, ANTE, AT 665.  TO
ALLOW A JURY TO INFER AN ILLEGAL "CONSPIRACY" FROM THE AGREED-UPON WAGE
SCALE MEANS THAT THE JURY MUST DETERMINE AT WHAT LEVEL THE WAGES COULD
BE FIXED WITHOUT IMPELLING THE PARTIES INTO THE AMBIT OF THE ANTITRUST
LAWS.  IS THIS NOT ANOTHER WAY OF SAYING THAT, VIA THE ANTITRUST ROUTE,
A JUDGE OR JURY MAY DETERMINE, ACCORDING TO ITS OWN NOTIONS OF WHAT IS
ECONOMICALLY SOUND, THE AMOUNT OF WAGES THAT A UNION CAN PROPERLY ASK
FOR OR THAT AN EMPLOYER CAN PAY?  IT IS CLEAR, AS EXPERIENCE SHOWS,
THAT JUDGES AND JURIES NEITHER HAVE THE APTITUDE NOR POSSESS THE
CRITERIA FOR MAKING THIS KIND OF JUDGMENT.  IN PENNINGTON, ABSENT THE
ALLEGED CONSPIRACY, WOULD THE WAGE RATE AND FRINGE BENEFITS HAVE BEEN
LOWER?  SHOULD THEY HAVE BEEN LOWER?  IF PENNINGTON WERE AN ACTION FOR
INJUNCTIVE RELIEF, WHAT WOULD BE THE APPROPRIATE REMEDY TO REACH THE
LABOR COST WHICH IS AT THE HEART OF THE ALLEGED ANTITRUST VIOLATION?  A
JUDICIAL DETERMINATION OF THE WAGE RATE?  A JUDICIAL NULLIFICATION OF
THE EXISTING RATE WITH A DIRECTION TO NEGOTIATE A LOWER ONE?  I CANNOT
BELIEVE THAT CONGRESS HAS SANCTIONED JUDICIAL WAGE CONTROL UNDER THE
UMBRELLA OF THE SHERMAN ACT, FOR, ABSENT A NATIONAL EMERGENCY, (FN23)
CONGRESS HAS NEVER LEGISLATED WAGE CONTROL IN OUR FREE-ENTERPRISE
ECONOMY. 

THE HISTORY I HAVE SET OUT MAKES CLEAR THAT CONGRESS INTENDED TO
FORECLOSE JUDGES AND JURIES FROM MAKING ESSENTIALLY ECONOMIC JUDGMENTS
IN ANTITRUST ACTIONS BY DETERMINING WHETHER UNIONS OR EMPLOYERS HAD
GOOD OR BAD MOTIVES FOR THEIR AGREEMENTS ON SUBJECTS OF MANDATORY
BARGAINING.  MOREOVER, AN ATTEMPTED INQUIRY INTO THE MOTIVES OF
EMPLOYERS OR UNIONS FOR ENTERING INTO COLLECTIVE BARGAINING AGREEMENTS
ON SUBJECTS OF MANDATORY BARGAINING IS TOTALLY ARTIFICIAL.  IT IS
PRECISELY IN THIS AREA OF WAGES, HOURS, AND OTHER WORKING CONDITIONS
THAT CONGRESS HAS RECOGNIZED THAT UNIONS HAVE A SUBSTANTIAL, DIRECT,
AND BASIC INTEREST OF THEIR OWN TO ADVANCE. 

AS I HAVE DISCUSSED, THE COURT'S TEST IS NOT ESSENTIALLY DIFFERENT
FROM THE DISCREDITED PURPOSE-MOTIVE APPROACH.  ONLY RARELY WILL THERE
BE DIRECT EVIDENCE OF AN EXPRESS AGREEMENT BETWEEN A UNION AND AN
EMPLOYER TO IMPOSE A PARTICULAR WAGE SCALE ON OTHER EMPLOYERS.  IN MOST
CASES, AS WAS TRUE OF PENNINGTON, THE TRIAL COURT WILL INSTRUCT THE
JURY THAT SUCH AN ILLEGAL AGREEMENT MAY BE INFERRED FROM THE CONDUCT -
"INDIRECT EVIDENCE" - OF THE UNION AND EMPLOYERS.  TO ALLOW A COURT OR
A JURY TO INFER AN ILLEGAL AGREEMENT FROM COLLECTIVE BARGAINING CONDUCT
INEVITABLY REQUIRES COURTS AND JURIES TO ANALYZE THE TERMS OF
COLLECTIVE BARGAINING AGREEMENTS AND THE PURPOSES AND MOTIVES OF UNIONS
AND EMPLOYERS IN AGREEING UPON THEM.  MOREOVER, THE EVIDENCE MOST OFTEN
AVAILABLE TO SUSTAIN ANTITRUST LIABILITY UNDER THE COURT'S THEORY WOULD
SHOW, AS IT DID IN PENNINGTON, SIMPLY THAT THE MOTIVES OF THE UNION AND
EMPLOYER COINCIDE - THE UNION SEEKING HIGH WAGES AND PROTECTION FROM
LOW-WAGE, NONUNION COMPETITION, AND THE EMPLOYER WHO PAYS HIGH WAGES
SEEKING PROTECTION FROM COMPETITORS WHO PAY LOWER WAGES.  WHEN THERE IS
THIS COINCIDENCE OF MOTIVE, DOES THE ILLEGALITY OF THE "CONSPIRACY"
TURN ON WHETHER THE UNION PURSUED ITS GOAL OF A UNIFORM WAGE POLICY
THROUGH STRIKES AND NOT NEGOTIATION?  AS I READ THE COURT'S OPINION
THIS IS PRECISELY WHAT THE RESULT TURNS ON AND THUS UNIONS ARE FORCED,
IN ORDER TO SHOW THAT THEY HAVE NOT ILLEGALLY "AGREED" WITH EMPLOYERS,
TO PURSUE THEIR AIMS THROUGH STRIKES AND NOT NEGOTIATIONS.  YET, IT IS
CLEAR THAT SUCH A RESULT WAS PRECISELY WHAT THE NATIONAL LABOR
RELATIONS ACT WAS DESIGNED TO PREVENT.  THE ONLY ALTERNATIVE TO
RESOLUTION OF COLLECTIVE BARGAINING ISSUES BY FORCE AVAILABLE TO THE
PARTIES UNDER THE COURT'S HOLDING IS THE ENCOURAGEMENT OF FRAUD AND
DECEIT.  AN EMPLOYER WILL BE FORCED TO TAKE A PUBLIC STAND AGAINST A
UNION'S WAGE DEMANDS, EVEN IF HE IS WILLING TO ACCEPT THEM, LEST A TOO
READY ACCEPTANCE BE USED BY A JURY TO INFER AN AGREEMENT BETWEEN THE
UNION AND EMPLOYER THAT THE SAME WAGES WILL BE SOUGHT FROM OTHER
EMPLOYERS.  YET, I HAVE ALWAYS THOUGHT THAT IN COLLECTIVE BARGAINING,
EVEN MORE THAN IN OTHER AREAS OF CONTRACTUAL AGREEMENT, THE OBJECTIVE
IS OPEN COVENANTS OPENLY ARRIVED AT. 

FURTHERMORE, I DO NOT UNDERSTAND HOW AN INQUIRY CAN BE FORMULATED IN
TERMS OF WHETHER THE UNION ACTION IS UNILATERAL OR IS A CONSEQUENCE OF
A "CONSPIRACY" WITH EMPLOYERS INDEPENDENTLY OF THE ECONOMIC TERMS OF
THE COLLECTIVE BARGAINING AGREEMENT.  THE AGREEMENT MUST BE ADMITTED
INTO EVIDENCE AND THE COURT HOLDS THAT ITS ECONOMIC CONSEQUENCES ARE
RELEVANT.  IN THE END, ONE WAY OR ANOTHER, THE ENTIRE PANOPLY OF
ECONOMIC FACT BECOMES INVOLVED, AND JUDGES AND JURIES UNDER THE COURT'S
VIEW WOULD THEN BE ALLOWED TO SPECULATE ABOUT WHY A UNION BARGAINED FOR
INCREASED COMPENSATION, OR ANY OTHER LABOR STANDARD WITHIN THE SCOPE OF
MANDATORY BARGAINING.  IT IS PRECISELY THIS TYPE OF SPECULATION THAT
CONGRESS HAS REJECTED. 

THE PLAIN FACT IS THAT IT MAKES NO SENSE TO TURN ANTITRUST LIABILITY
OF EMPLOYERS AND UNIONS CONCERNING SUBJECTS OF MANDATORY BARGAINING ON
WHETHER THE UNION ACTED "UNILATERALLY" OR IN "AGREEMENT" WITH
EMPLOYERS.  A UNION CAN NEVER ACHIEVE SUBSTANTIAL BENEFITS FOR ITS
MEMBERS THROUGH UNILATERAL ACTION; I SHOULD HAVE THOUGHT THAT THE
UNSUCCESSFUL HISTORY OF THE INDUSTRIAL WORKERS OF THE WORLD, WHICH
ESCHEWED COLLECTIVE BARGAINING AND ESPOUSED A PHILOSOPHY OF WINNING
BENEFITS BY UNILATERAL ACTION, PROVED THIS BEYOND QUESTION.  SEE
DULLES, LABOR IN AMERICA 208-223 (1949); CHAPLIN, WOBBLY (1948). 
FURTHERMORE, I CANNOT BELIEVE THAT CONGRESS, BY ADOPTING THE ANTITRUST
LAWS, PUT ITS STAMP OF APPROVAL ON THIS DISCREDITED IWW PHILOSOPHY OF
INDUSTRIAL RELATIONS; RATHER, IN THE CLAYTON ACT AND THE LABOR
STATUTES, CONGRESS HAS REPUDIATED SUCH A PHILOSOPHY.  OUR NATIONAL
LABOR POLICY IS DESIGNED TO ENCOURAGE THE PEACEFUL SETTLEMENT OF
INDUSTRIAL DISPUTES THROUGH THE NEGOTIATION OF AGREEMENTS BETWEEN
EMPLOYERS AND UNIONS.  UNIONS CANNOT, AS THE HISTORY OF THE IWW SHOWS,
SUCCESSFULLY RETAIN EMPLOYEE BENEFITS BY UNILATERAL ACTION; NOR CAN
EMPLOYERS BE ASSURED OF CONTINUOUS OPERATION WITHOUT CONTRACTUAL
SAFEGUARDS.  THE HISTORY OF LABOR RELATIONS IN THIS COUNTRY SHOWS, AS
CONGRESS HAS RECOGNIZED, THAT PROGRESS AND STABILITY FOR BOTH EMPLOYERS
AND EMPLOYEES CAN BE ACHIEVED ONLY THROUGH COLLECTIVE BARGAINING
AGREEMENTS INVOLVING MUTUAL RIGHTS AND RESPONSIBILITIES. 

THIS HISTORY ALSO SHOWS THAT LABOR CONTRACTS ESTABLISHING MORE OR LESS
STANDARDIZED WAGES, HOURS, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT
IN A GIVEN INDUSTRY OR MARKET AREA ARE OFTEN SECURED EITHER THROUGH
BARGAINING WITH MULTI-EMPLOYER ASSOCIATIONS OR THROUGH BARGAINING WITH
MARKET LEADERS THAT SETS A "PATTERN" FOR AGREEMENTS ON LABOR STANDARDS
WITH OTHER EMPLOYERS.  THESE ARE TWO SIMILAR SYSTEMS USED TO ACHIEVE
THE IDENTICAL RESULT OF FOSTERING LABOR PEACE THROUGH THE NEGOTIATION
OF UNIFORM LABOR STANDARDS IN AN INDUSTRY.  YET THE COURT MAKES
ANTITRUST LIABILITY FOR BOTH UNIONS AND EMPLOYERS TURN ON WHICH OF
THESE TWO SYSTEMS IS USED.  IT STATES THAT UNIFORM WAGE AGREEMENTS MAY
BE MADE WITH MULTI-EMPLOYER UNITS BUT AN AGREEMENT CANNOT BE MADE TO
AFFECT EMPLOYERS OUTSIDE THE FORMAL BARGAINING UNIT.  I DO NOT BELIEVE
THAT THE COURT UNDERSTANDS THE EFFECT OF ITS RULING IN TERMS OF THE
PRACTICAL REALITIES OF THE AUTOMOBILE, STEEL, RUBBER, SHIPBUILDING, AND
NUMEROUS OTHER INDUSTRIES WHICH FOLLOW THE POLICY OF PATTERN COLLECTIVE
BARGAINING.  SEE CHAMBERLAIN, COLLECTIVE BARGAINING 259-263 (1951);
NOTE 20, SUPRA.  I ALSO DO NOT UNDERSTAND WHY ANTITRUST LIABILITY
SHOULD TURN ON THE FORM OF UNIT DETERMINATION RATHER THAN THE SUBSTANCE
OF THE COLLECTIVE BARGAINING IMPACT ON THE INDUSTRY. 

FINALLY, IT SEEMS CLEAR THAT THE ESSENTIAL ERROR AT THE CORE OF THE
COURT'S REASONING IS THAT IT IGNORES THE EXPRESS COMMAND OF CONGRESS
THAT "THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR ARTICLE OF
COMMERCE," (FN24) AND THEREFORE THAT THE ANTITRUST LAWS DO NOT PROHIBIT
THE "ELIMINATION OF PRICE COMPETITION BASED ON DIFFERENCES IN LABOR
STANDARDS."  APEX HOSIERY CO. V. LEADER, SUPRA, AT 503.  THIS IS MADE
CLEAR BY A SIMPLE QUESTION THAT THE COURT DOES NOT FACE.  WHERE THERE
IS AN "AGREEMENT" TO SEEK UNIFORM WAGES IN AN INDUSTRY, IN WHAT ITEM IS
COMPETITION RESTRAINED?  THE ANSWER TO THIS QUESTION CAN ONLY BE THAT
COMPETITION IS RESTRAINED IN EMPLOYEE WAGE STANDARDS.  THAT IS, THE
UNION HAS AGREED TO RESTRAIN THE FREE COMPETITIVE MARKET FOR LABOR BY
REFUSING TO PROVIDE LABOR TO OTHER EMPLOYERS BELOW THE UNIFORM RATE. 
UNDER SUCH AN ANALYSIS, IT WOULD SEEM TO FOLLOW THAT THE EXISTENCE OF A
UNION ITSELF CONSTITUTES A RESTRAINT OF TRADE, FOR THE OBJECT OF A
UNION IS TO BAND TOGETHER THE INDIVIDUAL WORKERS IN AN EFFORT, BY
COMMON ACTION, TO OBTAIN BETTER WAGES AND WORKING CONDITIONS - I.E., TO
OBTAIN A HIGHER PRICE FOR THEIR LABOR.  THE VERY PURPOSE AND EFFECT OF
A LABOR UNION IS TO LIMIT THE POWER OF AN EMPLOYER TO USE COMPETITION
AMONG WORKINGMEN TO DRIVE DOWN WAGE RATES AND ENFORCE SUBSTANDARD
CONDITIONS OF EMPLOYMENT.  IF COMPETITION BETWEEN WORKINGMEN TO SEE WHO
WILL WORK FOR THE LOWEST WAGE IS THE IDEAL, ALL LABOR UNIONS SHOULD BE
ELIMINATED.  INDEED THE COURT ITSELF APPARENTLY REALIZES THAT ITS
HOLDING THAT THE ANTITRUST LAWS ARE VIOLATED WHEN A LABOR UNION AGREES
WITH EMPLOYERS NOT TO COMPETE ON WAGES IS PREMISED ON THE BELIEF THAT
LABOR IS A COMMODITY AND THAT THIS PREMISE LEADS TO THE LOGICAL
CONCLUSION THAT UNIONS THEMSELVES RESTRAIN TRADE IN THIS COMMODITY. 
THIS IS THE ONLY REASON I CAN IMAGINE FOR THE COURT'S FELT NEED, IN
1965, TO ASSERT THAT "THE ANTITRUST LAWS DO NOT BAR THE EXISTENCE AND
OPERATION OF LABOR UNIONS AS SUCH."  PENNINGTON, ANTE, AT 661. 

AS I HAVE ALREADY DISCUSSED, HOWEVER, IF ONE THING IS CLEAR, IT IS
THAT CONGRESS HAS REPUDIATED THE VIEW THAT LABOR IS A COMMODITY AND
THUS THERE SHOULD BE COMPETITION TO SEE WHO CAN SUPPLY IT AT THE
CHEAPEST PRICE.  SEE PP. 710-713, SUPRA.  THE KIND OF COMPETITION WHICH
IS SUPPRESSED BY EMPLOYER-UNION AGREEMENT ON UNIFORM WAGES CAN ONLY BE
COMPETITION BETWEEN UNIONS TO SEE WHICH UNION WILL AGREE TO SUPPLY
LABOR AT A LOWER RATE, OR COMPETITION BETWEEN EMPLOYERS IN THE SALE OF
THEIR PRODUCTS BASED ON DIFFERENCES IN LABOR COSTS.  NEITHER TYPE OF
"SUPPRESSION," I SUBMIT, CAN BE SUPPORTED AS A RESTRAINT OF TRADE
CONDEMNED BY THE ANTITRUST LAWS.  NO ONE, I THINK, BELIEVES THAT
CONGRESS INTENDED THAT THERE BE AN ECONOMIC SYSTEM UNDER WHICH UNIONS
WOULD COMPETE WITH EACH OTHER TO SUPPLY LABOR AT THE LOWEST POSSIBLE
COST.  IT IS EQUALLY CLEAR THAT CONGRESS DID NOT INTEND THAT
COMPETITION AMONG MANUFACTURERS SHOULD BE CARRIED ON, NOT ON THE BASIS
OF THEIR RELATIVE EFFICIENCY OR ABILITY TO PRODUCE WHAT THE CONSUMER
DEMANDS, BUT ON THEIR ABILITY TO OPERATE AT SUBSTANDARD WAGE RATES. 
ONE OF THE IMPORTANT SOCIAL ADVANTAGES OF COMPETITION MANDATED BY THE
ANTITRUST LAWS IS THAT IT REWARDS THE MOST EFFICIENT PRODUCER AND THUS
ENSURES THE OPTIMUM USE OF OUR ECONOMIC RESOURCES.  THIS RESULT, AS
CONGRESS RECOGNIZED, IS NOT ACHIEVED BY CREATING A SITUATION IN WHICH
MANUFACTURERS COMPETE ON THE BASIS OF WHO PAYS THE LOWEST WAGES.  AS
THIS COURT STATED IN APEX HOSIERY CO. V. LEADER, SUPRA, AT 503-504, THE
"ELIMINATION OF PRICE COMPETITION BASED ON DIFFERENCES IN LABOR
STANDARDS IS THE OBJECTIVE OF ANY NATIONAL LABOR ORGANIZATION.  BUT
THIS EFFECT ON COMPETITION HAS NOT BEEN CONSIDERED TO BE THE KIND OF
CURTAILMENT OF PRICE COMPETITION PROHIBITED BY THE SHERMAN ACT." 

THE ASSUMPTION RUNNING THROUGH THE COURT'S OPINION IN PENNINGTON, AS
WELL AS THE OPINION OF MY BROTHER DOUGLAS, IS THAT GIVING FULL SCOPE TO
THE CONGRESSIONAL EXEMPTION OF LABOR UNIONS FROM THE ANTITRUST LAWS
WILL OPERATE TO THE ADVANTAGE OF LARGE EMPLOYERS AND BIG UNIONS TO THE
PREJUDICE OF SMALL EMPLOYERS.  ALTHOUGH I CANNOT SEE HOW THAT SHOULD
AFFECT THE RESULT REACHED ON THE BASIS OF CONGRESSIONAL INTENT EVEN IF
THE ASSUMPTION WERE TRUE, SEE HUNT V. CRUMBOCH, 325 U.S. 821, 825, N.
1, I FEEL COMPELLED TO NOTE THAT THIS ASSUMPTION IS NOT ACCURATE AND IS
BELIED BY THE ACTUALITIES OF INDUSTRIAL RELATIONS.  EXPERIENCE IN THIS
AREA SHOWS THAT FREQUENTLY UNIONS FIRST ORGANIZE THE SMALL AND WEAK
EMPLOYERS.  THESE SMALL EMPLOYERS ARE UNDERSTANDABLY AFRAID THAT UNLESS
OTHER, LARGER EMPLOYERS ARE ALSO ORGANIZED, EFFECTIVE COMPETITION WILL
BE IMPOSSIBLE.  THEY WILL THUS OFTEN SEEK TO HAVE THE UNION ATTEMPT TO
ORGANIZE AND BARGAIN FOR SIMILAR LABOR STANDARDS WITH THEIR LARGER
COMPETITORS SO THAT THE REQUIREMENT TO PAY HIGH UNION WAGES WILL NOT
FORCE THE SMALL BUSINESSMEN TO CLOSE DOWN THEIR ENTERPRISES. 

THE COURT'S HOLDING IN PENNINGTON TODAY FLIES IN THE FACE OF APEX AND
HUTCHESON AND RESTRAINS COLLECTIVE BARGAINING IN THE SAME WAY AS DID
THE HOLDING OF THE MAJORITY IN DUPLEX - A HOLDING WHICH CONGRESS HAS
EXPRESSLY REPUDIATED IN FAVOR OF MR. JUSTICE BRANDEIS' DISSENTING
VIEWS.  IT REPRESENTS CONTEMPORARY MANIFESTATIONS OF THE RELUCTANCE OF
JUDGES TO GIVE FULL EFFECT TO CONGRESSIONAL PURPOSE IN THIS AREA AND
THE SUBSTITUTION OF JUDGES' VIEWS FOR THOSE OF CONGRESS AS TO HOW FREE
COLLECTIVE BARGAINING SHOULD OPERATE.  (FN25)

V. 

THE JUDICIAL EXPRESSIONS IN JEWEL TEA REPRESENT ANOTHER EXAMPLE OF
THE RELUCTANCE OF JUDGES TO GIVE FULL EFFECT TO CONGRESSIONAL PURPOSE
IN THIS AREA AND THE SUBSTITUTION BY JUDGES OF THEIR VIEWS FOR THOSE OF
CONGRESS AS TO HOW FREE COLLECTIVE BARGAINING SHOULD OPERATE.  IN THIS
CASE THE COURT OF APPEALS WOULD HAVE HELD THE UNION SUBJECT TO THE
SHERMAN ACT'S CRIMINAL AND CIVIL PENALTIES BECAUSE IN THE COURT'S
SOCIAL AND ECONOMIC JUDGMENT, THE DETERMINATION OF THE HOURS AT WHICH
MEAT IS TO BE SOLD IS A "PROPRIETARY" MATTER WITHIN THE EXCLUSIVE
CONTROL OF MANAGEMENT AND THUS THE UNION HAD NO LEGITIMATE INTEREST IN
BARGAINING OVER IT.  MY BROTHER DOUGLAS, JOINED BY MR. JUSTICE BLACK
AND MR. JUSTICE CLARK, WOULD AFFIRM THIS JUDGMENT APPARENTLY BECAUSE
THE AGREEMENT WAS REACHED THROUGH A MULTI-EMPLOYER BARGAINING UNIT. 
BUT, AS I HAVE DEMONSTRATED ABOVE, THERE IS NOTHING EVEN REMOTELY
ILLEGAL ABOUT SUCH BARGAINING.  EVEN IF AN INDEPENDENT CONSPIRACY TEST
WERE APPLICABLE TO THE JEWEL TEA SITUATION, THE SIMPLE FACT IS THAT
MULTI-EMPLOYER BARGAINING CONDUCTED AT ARM'S LENGTH DOES NOT CONSTITUTE
UNION ABETMENT OF A BUSINESS COMBINATION.  IT IS OFTEN A SELF-DEFENSIVE
FORM OF EMPLOYER BARGAINING DESIGNED TO MATCH UNION STRENGTH.  SEE
LABOR BOARD V. TRUCK DRIVERS UNION, SUPRA; LABOR BOARD V. BROWN,
SUPRA. 

MY BROTHER WHITE, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN, WHILE NOT AGREEING WITH MY BROTHER DOUGLAS, WOULD REVERSE THE
COURT OF APPEALS.  HE ALSO, HOWEVER, REFUSES TO GIVE FULL EFFECT TO THE
CONGRESSIONAL INTENT THAT JUDGES SHOULD NOT, UNDER COVER OF THE SHERMAN
ACT UMBRELLA, SUBSTITUTE THEIR ECONOMIC AND SOCIAL POLICIES FOR FREE
COLLECTIVE BARGAINING.  MY BROTHER WHITE RECOGNIZES THAT THE ISSUE OF
THE HOURS OF SALE OF MEAT CONCERNS A MANDATORY SUBJECT OF BARGAINING
BASED ON THE TRIAL COURT'S FINDINGS THAT IT DIRECTLY AFFECTED THE HOURS
OF WORK OF THE BUTCHERS IN THE SELF-SERVICE MARKETS, AND THEREFORE,
SINCE THERE WAS A FINDING THAT THE UNION WAS NOT ABETTING AN
INDEPENDENT EMPLOYER CONSPIRACY, HE JOINS IN REVERSING THE COURT OF
APPEALS.  IN DOING SO, HOWEVER, HE APPARENTLY DRAWS LINES AMONG
MANDATORY SUBJECTS OF BARGAINING, PRESUMABLY BASED ON A JUDICIAL
DETERMINATION OF THEIR IMPORTANCE TO THE WORKER, AND STATES THAT NOT
ALL AGREEMENTS RESULTING FROM COLLECTIVE BARGAINING BASED ON MANDATORY
SUBJECTS OF BARGAINING ARE IMMUNE FROM THE ANTITRUST LAWS, EVEN ABSENT
EVIDENCE OF UNION ABETMENT OF AN INDEPENDENT CONSPIRACY OF EMPLOYERS. 
FOLLOWING THIS REASONING, MY BROTHER WHITE INDICATES THAT HE WOULD
SUSTAIN A JUDGMENT HERE, EVEN ABSENT EVIDENCE OF UNION ABETMENT OF AN
INDEPENDENT CONSPIRACY OF EMPLOYERS, IF THE TRIAL COURT HAD FOUND "THAT
SELF-SERVICE MARKETS COULD ACTUALLY OPERATE WITHOUT BUTCHERS, AT LEAST
FOR A FEW HOURS AFTER 6 P.M., THAT NO ENCROACHMENT ON BUTCHERS' WORK
WOULD RESULT AND THAT THE WORKLOAD OF BUTCHERS DURING NORMAL WORKING
HOURS WOULD NOT BE SUBSTANTIALLY INCREASED  ...  ."  ANTE, AT 692. 
SUCH A VIEW SEEMS TO ME TO BE UNSUPPORTABLE.  IT REPRESENTS A NARROW,
CONFINING VIEW OF WHAT LABOR UNIONS HAVE A LEGITIMATE INTEREST IN
PRESERVING AND THUS BARGAINING ABOUT.  EVEN IF THE SELF-SERVICE MARKETS
COULD OPERATE AFTER 6 P.M., WITHOUT THEIR BUTCHERS AND WITHOUT
INCREASING THE WORK OF THEIR BUTCHERS AT OTHER TIMES, THE RESULT OF
SUCH OPERATION CAN REASONABLY BE EXPECTED TO BE EITHER THAT THE SMALL,
INDEPENDENT SERVICE MARKETS WOULD HAVE TO REMAIN OPEN IN ORDER TO
COMPETE, THUS REQUIRING THEIR UNION BUTCHERS TO WORK AT NIGHT, OR THAT
THE SMALL, INDEPENDENT SERVICE MARKETS WOULD NOT BE ABLE TO OPERATE AT
NIGHT AND THUS WOULD BE PUT AT A COMPETITIVE DISADVANTAGE.  (FN26)
SINCE IT IS CLEAR THAT THE LARGE, AUTOMATED SELF-SERVICE MARKETS EMPLOY
FEWER BUTCHERS PER VOLUME OF SALES THAN SERVICE MARKETS DO, THE UNION
CERTAINLY HAS A LEGITIMATE INTEREST IN KEEPING SERVICE MARKETS
COMPETITIVE SO AS TO PRESERVE JOBS.  JOB SECURITY OF THIS KIND HAS BEEN
RECOGNIZED TO BE A LEGITIMATE SUBJECT OF UNION INTEREST.  SEE
TELEGRAPHERS V. CHICAGO, & N.W.R. CO., 362 U.S. 330; TEAMSTERS UNION V.
OLIVER, 358 U.S. 283, 362 U.S. 605; UNITED STATES V. HOD CARRIERS, 313
U.S. 539, AFFIRMING UNITED STATES V. CARROZZO, 37 F. SUPP.  191
(D.C.N.D. ILL.); UNITED STATES V. AMERICAN FEDERATION OF MUSICIANS, 318
U.S. 741, AFFIRMING 47 F. SUPP. 304 (D.C.N.D. ILL.); WINDOW GLASS
MFRS.  V. UNITED STATES, 263 U.S. 403; CF. TEAMSTERS UNION V. HANKE,
339 U.S. 470, 475 (OPINION OF MR. JUSTICE FRANKFURTER); SEE ALSO
CALIFORNIA SPORTSWEAR & DRESS ASSN., INC., 54 F.T.C. 835.  AS I HAVE
PREVIOUSLY STATED: "TO BELIEVE THAT LABOR UNION INTERESTS MAY NOT
PROPERLY EXTEND BEYOND MERE DIRECT JOB AND WAGE COMPETITION IS TO
IGNORE NOT ONLY ECONOMIC AND SOCIAL REALITIES SO OBVIOUS AS NOT TO NEED
MENTION, BUT ALSO THE GRAPHIC LESSONS OF AMERICAN LABOR UNION
HISTORY."  LOS ANGELES MEAT & PROVISION DRIVERS UNION V. UNITED STATES,
371 U.S. 94, 103, 104 (CONCURRING OPINION).  THE DIRECT INTEREST OF THE
UNION IN NOT WORKING UNDESIRABLE HOURS BY CURTAILING ALL BUSINESS AT
THOSE HOURS IS, OF COURSE, A FAR CRY FROM THE INDIRECT "INTEREST" IN
ALLEN BRADLEY IN FIXING PRICES AND ALLOCATING MARKETS SOLELY TO
INCREASE THE PROFITS OF FAVORED EMPLOYERS. 

INDEED, IF THE UNION IN JEWEL TEA WERE ATTEMPTING TO AID THE SMALL
SERVICE BUTCHER SHOPS AND THUS SAVE TOTAL EMPLOYMENT AGAINST
AUTOMATION, PERHAPS AT A NECESSARILY REDUCED WAGE SCALE, THE CASE WOULD
PRESENT THE EXACT OPPOSITE UNION PHILOSOPHY FROM THAT OF THE MINE
WORKERS IN PENNINGTON.  PUTTING THE OPINION OF THE COURT IN PENNINGTON
TOGETHER WITH THE OPINIONS OF MY BROTHERS DOUGLAS AND WHITE IN JEWEL
TEA, IT WOULD SEEM THAT UNIONS ARE DAMNED IF THEIR COLLECTIVE
BARGAINING PHILOSOPHY INVOLVES ACCEPTANCE OF AUTOMATION (PENNINGTON)
AND ARE EQUALLY DAMNED IF THEIR COLLECTIVE BARGAINING PHILOSOPHY
INVOLVES RESISTANCE TO AUTOMATION (JEWEL TEA).  AGAIN, THE WISDOM OF A
UNION ADOPTING EITHER PHILOSOPHY IS NOT FOR JUDICIAL DETERMINATION. 
THIS COURT RECENTLY STATED THAT "WE EMPHATICALLY REFUSE TO GO BACK TO
THE TIME WHEN COURTS USED THE DUE PROCESS CLAUSE 'TO STRIKE DOWN STATE
LAWS, REGULATORY OF BUSINESS AND INDUSTRIAL CONDITIONS, BECAUSE THEY
MAY BE UNWISE, IMPROVIDENT, OR OUT OF HARMONY WITH A PARTICULAR SCHOOL
OF THOUGHT.'"  FERGUSON V. SKRUPA, 372 U.S. 726, 731-732.  I LIKEWISE
SEE NO REASON WHY THIS COURT SHOULD GO BACK TO THE TIME WHEN JUDGES
DETERMINED "ACCORDING TO THEIR OWN ECONOMIC AND SOCIAL VIEWS WHETHER
THE DAMAGE INFLICTED ON AN EMPLOYER IN AN INDUSTRIAL STRUGGLE WAS
DAMNUM ABSQUE INJURIA, BECAUSE AN INCIDENT OF TRADE COMPETITION, OR A
LEGAL INJURY, BECAUSE IN THEIR OPINION, ECONOMICALLY AND SOCIALLY
OBJECTIONABLE."  DUPLEX CO. V. DEERING, SUPRA, AT 486 (DISSENTING
OPINION OF MR. JUSTICE BRANDEIS). 

                                            VI. 

MOREOVER, WHILE THESE CASES INVOLVE SUITS AGAINST UNIONS, WE SHOULD
NOT OVERLOOK THE FACT THAT IF UNIONS ARE HELD LIABLE UNDER THE
ANTITRUST LAWS FOR COLLECTIVE BARGAINING ACTIVITIES CONCERNING
MANDATORY SUBJECTS, THEN THE EMPLOYER PARTIES TO THIS MANDATORY
COLLECTIVE BARGAINING WOULD ALSO BE SUBJECT TO ANTITRUST PENALTIES,
CRIMINAL AND CIVIL.  IT WOULD SEEM THE HEIGHT OF UNFAIRNESS SO TO
PENALIZE EMPLOYERS FOR THE DISCHARGE OF THEIR STATUTORY DUTY TO BARGAIN
ON WAGES, HOURS, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT, WHICH
DUTY, THIS COURT HAS HELD, REQUIRES THE EMPLOYER TO ENTER INTO A SIGNED
CONTRACT WITH THE UNION EMBODYING THE COLLECTIVE BARGAINING TERMS
AGREED UPON.  SEE H.J. HEINZ CO. V. LABOR BOARD, 311 U.S. 514.  THE
UNFAIRNESS TO EMPLOYERS OF THIS SITUATION IS APTLY ILLUSTRATED BY THE
RECORD FACTS OF PENNINGTON.  FROM 1930 UNTIL THE FORMATION OF THE
BITUMINOUS COAL OPERATORS' ASSOCIATION AND THE NEGOTIATION OF A UNIFORM
WAGE AGREEMENT BETWEEN THE ASSOCIATION AND THE UNION IN 1950,
BARGAINING IN THE COAL INDUSTRY WAS HIGHLIGHTED BY BITTER AND
PROTRACTED NEGOTIATIONS.  COSTLY STRIKES WERE A RECURRING PHENOMENON
AND GOVERNMENT SEIZURE OF THE MINES WAS CHARACTERISTIC OF MOST OF THE
PERIOD.  UNFAIR LABOR PRACTICE CHARGES WERE OFTEN EXCHANGED AND
LAWSUITS RESULTING FROM BARGAINING DIFFERENCES WERE ON COURT DOCKETS
CONTINUOUSLY.  IN 1934, 400,000 MINERS STRUCK FOR ONE WEEK.  IN 1939, A
FIVE-WEEK STRIKE ENDED ONLY AFTER PRESIDENTIAL INTERVENTION.   IN 1941,
THE UNION STRUCK SOUTHERN MINES AFTER THOSE OPERATORS WITHDREW FROM
NEGOTIATIONS IN WHICH THE UNION WAS SEEKING TO ELIMINATE A REGIONAL
WAGE DIFFERENTIAL.  SHORTLY THEREAFTER THE UNION STRUCK THE SO-CALLED
"CAPTIVE" MINES (MINES WHICH PRODUCE COAL TO BE USED IN THE PROCESSING
OF OTHER PRODUCTS, MAINLY STEEL).  ONE HUNDRED THOUSAND OTHER MINERS
STRUCK IN SYMPATHY WITH THE CAPTIVE MINE EMPLOYEES.  DURING
NEGOTIATIONS IN 1943, THERE WERE A NUMBER OF STRIKES OVER A SIX-MONTH
PERIOD AND THE GOVERNMENT TWICE SEIZED THE STRUCK MINES.  SIMILARLY IN
1945 A NUMBER OF STRIKES FOLLOWING A BREAKDOWN IN NEGOTIATIONS RESULTED
IN GOVERNMENT SEIZURE OF 235 MINES.  WHEN THE GOVERNMENT SEIZED THE
MINES ONCE AGAIN IN 1946 BECAUSE OF A BREAKDOWN IN NEGOTIATIONS OVER A
WELFARE FUND, A SETTLEMENT WAS REACHED ONLY THROUGH THE ACTIVE
INTERVENTION OF THE SECRETARY OF THE INTERIOR, WHO HIMSELF NEGOTIATED
THE BEGINNING OF THE PROGRAM OF WELFARE FUND BENEFITS. 

IT WAS THE OPINION OF MANY EMPLOYERS AND NEUTRAL OBSERVERS OF THE
SCENE THAT THESE CHAOTIC COLLECTIVE BARGAINING CONDITIONS WERE A
RESULT, AT LEAST IN PART, OF THE DISORGANIZED BARGAINING ON THE
EMPLOYER SIDE.  WITH EACH NEW EFFORT AT NEGOTIATIONS THE OPERATORS HAD
ATTEMPTED TO FORM A COMMITTEE WITH VARIOUS SUBCOMMITTEES TO RECEIVE AND
PRESENT BARGAINING PROPOSALS.  THERE WAS, HOWEVER, NO PERMANENT
ORGANIZATION TO UNIFY THE OPERATORS' BARGAINING POSITION AND THEREBY TO
ATTEMPT TO MAINTAIN PEACEFUL AND STABLE LABOR RELATIONS.  THE AMORPHOUS
AND AD HOC NATURE OF THE EMPLOYERS' BARGAINING ORGANIZATION WAS FELT TO
HAVE SUBJECTED THE OPERATORS TO WHIPSAWING BY THE UNION AND THUS
IMPAIRED SERIOUS, GOOD FAITH AND BUSINESS-LIKE BARGAINING.  IT WAS TO
TRY TO CORRECT THIS SITUATION THAT THE ASSOCIATION WAS FORMED.  THE
ASSOCIATION IS OPEN TO ANY COAL OPERATOR WHO WISHES TO PARTICIPATE IN
THE NEGOTIATIONS THROUGH IT.  SINCE THIS CHANGE IN 1950, COLLECTIVE
BARGAINING HAS BEEN, TO A MARKED DEGREE, STABILIZED IN THE INDUSTRY. 
THERE HAVE BEEN NO GOVERNMENTAL SEIZURES OR NATION-WIDE STRIKES. 
COLLECTIVE BARGAINING PROBLEMS HAVE NOT ENDED AS A MATTER OF COURSE IN
LABOR BOARD OR COURT PROCEEDINGS, OR IN GOVERNMENTAL SEIZURE OR OTHER
INTERVENTION.  WHILE THE NEGOTIATIONS HAVE NOT ALWAYS BEEN EASY AND
MANY DIFFICULT ISSUES HAVE ARISEN, THE PROCEDURE FOR SOLVING THEM HAS
GONE FROM THE EARLIER JUNGLE-TYPE ECONOMIC WARFARE TO THE REASONED AND
RATIONAL PROCESS OF THE CONFERENCE TABLE.  I CANNOT BELIEVE THAT
CONGRESS, WHICH HAS MANIFESTED A CLEAR GENERAL PURPOSE OF PROMOTING
LABOR PEACE AND STABILITY, AND, IN PARTICULAR, HAS A LONG HISTORY OF
ATTENTION TO COLLECTIVE BARGAINING IN COAL, (FN27) ONE OF OUR BASIC
INDUSTRIES, INTENDED THAT THESE EMPLOYER EFFORTS TO PERFECT A SOLID
FRONT IN BARGAINING WITH THE MINERS' UNION SHOULD HAVE THE EFFECT OF
SUBJECTING THE EMPLOYERS, AS WELL AS THE UNION, TO THE PENALTIES OF THE
ANTITRUST LAWS.  TO APPLY THE ANTITRUST LAWS AT THIS LATE DATE TO SUCH
ACTIVITIES WOULD ENDANGER THE STABILITY WHICH NOW CHARACTERIZES
COLLECTIVE BARGAINING IN THE COAL INDUSTRY AND OTHER BASIC INDUSTRIES
WITH SIMILAR COLLECTIVE BARGAINING HISTORIES.  IT IS IN RECOGNITION OF
THIS FACT THAT CONGRESS HAS ON A NUMBER OF OCCASIONS REFUSED TO ENACT
LEGISLATION THAT WOULD CURTAIL INDUSTRY-WIDE BARGAINING (FN28) OR WOULD
MAKE THE ANTITRUST LAWS GENERALLY APPLICABLE TO COLLECTIVE BARGAINING
ACTIVITY.  (FN29)

                                            VII. 

MY VIEW THAT CONGRESS INTENDED THAT COLLECTIVE BARGAINING ACTIVITY ON
MANDATORY SUBJECTS OF BARGAINING UNDER THE LABOR ACT NOT BE SUBJECT TO
THE ANTITRUST LAWS DOES NOT MEAN THAT I BELIEVE THAT CONGRESS INTENDED
THAT ACTIVITY INVOLVING ALL NONMANDATORY SUBJECTS OF BARGAINING BE
SIMILARLY EXEMPT.  THE DIRECT AND OVERRIDING INTEREST OF UNIONS IN SUCH
SUBJECTS AS WAGES, HOURS, AND OTHER WORKING CONDITIONS, WHICH CONGRESS
HAS RECOGNIZED IN MAKING THEM SUBJECTS OF MANDATORY BARGAINING, IS
CLEARLY LACKING WHERE THE SUBJECT OF THE AGREEMENT IS PRICE-FIXING AND
MARKET ALLOCATION.  MOREOVER, SUCH ACTIVITIES ARE AT THE CORE OF THE
TYPE OF ANTICOMPETITIVE COMMERCIAL RESTRAINT AT WHICH THE ANTITRUST
LAWS ARE DIRECTED.    NOR DOES MY VIEW MEAN THAT WHERE A UNION OPERATES
AS A BUSINESSMAN, EXERCISING A PROPRIETARY OR OWNERSHIP FUNCTION, IT IS
BEYOND THE REACH OF THE ANTITRUST LAWS MERELY BECAUSE IT IS A UNION. 
ON THE CONTRARY, THE LABOR EXEMPTION IS INAPPLICABLE WHERE THE UNION
ACTS NOT AS A UNION BUT AS AN ENTREPRENEUR.  SEE, E.G., STREIFFER V.
SEAFARERS SEA CHEST CORP., 162 F. SUPP. 602 (D.C.E.D. LA.); UNITED
STATES V. SEAFARERS SEA CHEST CORP., 1956 CCH TRADE CASES PARA. 68,298
(D.C.E.D.N.Y.).  THEREFORE, IF A UNION IS FOUND BY SUFFICIENT EVIDENCE
AND UNDER PROPER INSTRUCTIONS TO HAVE PARTICIPATED AS A PROPRIETOR IN
ACTIONS VIOLATIVE OF THE ANTITRUST LAWS, IT IS NO MORE SHIELDED FROM
ANTITRUST SANCTIONS THAN ANY OTHER BUSINESS PARTICIPANT.    IN
PENNINGTON, THERE WERE ALLEGATIONS THAT A PART OF THE CONSPIRACY OF THE
LARGE COAL OPERATORS CONSISTED OF COLLUSIVE BIDDING ON THE TVA SPOT
MARKET OF WEST KENTUCKY COAL COMPANY, NASHVILLE COAL COMPANY, AND TWO
OTHER COAL OPERATORS, FOR WHICH THE UNION ALLEGEDLY SHARED
RESPONSIBILITY.  IT WAS ASSERTED THAT THE EFFECT OF THIS ALLEGED
COLLUSIVE BIDDING WAS TO DRIVE DOWN THE PRICES ON THE SPOT MARKET AND
THEREBY INJURE THE SMALL COAL OPERATORS.  ALTHOUGH THE COURT OF APPEALS
APPARENTLY ACCEPTED THIS POSITION, IT DID NOT DEAL DIRECTLY WITH THE
QUESTION OF WHETHER THE EVIDENCE WAS SUFFICIENT TO SHOW THE UNION'S
PARTICIPATION IN THE ALLEGED SCHEME.  RATHER, THE COURT OF APPEALS
RELIED UPON THE FACT THAT THE UNION WAS A MAJOR STOCKHOLDER IN WEST
KENTUCKY AND HAD SUBSTANTIAL INTERESTS IN NASHVILLE.  IT EXAMINED THE
ORIGIN AND GROWTH OF THE UNION INTEREST IN THESE TWO COMPANIES AND
CONCLUDED:  "IT WAS NOT UNREASONABLE FOR THE JURY TO CONCLUDE FROM
THESE FACTS THAT IT WAS THE PURPOSE OF THE UMW TO HAVE A VERY MATERIAL
VOICE, IF NOT THE DOMINANT ONE, IN DETERMINING THE POLICIES AND
OPERATIONS OF THESE TWO MAJOR COAL COMPANIES, WHICH, AS IS HEREINAFTER
POINTED OUT ARE CHARGED WITH PLAYING AN IMPORTANT ROLE IN THE ALLEGED
CONSPIRACY."  325 F.2D 804, 814.  THIS, IT APPEARS, IS AS NEAR AS THE
COURT OF APPEALS CAME TO PASSING UPON THE SUFFICIENCY OF THE EVIDENCE
CONNECTING THE UNION WITH THE ALLEGED COLLUSIVE SPOT MARKET BIDDING AND
IN EFFECT IS A HOLDING THAT THE OWNERSHIP OF A CONTROLLING OR
SUBSTANTIAL INTEREST IN A COMPANY WHICH VIOLATES THE ANTITRUST LAWS
SUBJECTS THE OWNER OF THAT INTEREST TO PERSONAL ANTITRUST LIABILITY. 
IN MY VIEW, THIS IS CLEARLY NOT THE LAW.  THE OWNERSHIP OF A
CONTROLLING OR SUBSTANTIAL INTEREST IN A COMPANY WHICH CONSPIRES WITH
OTHERS IN VIOLATION OF THE ANTITRUST LAWS DOES NOT IN ITSELF IMPOSE
ANTITRUST LIABILITY ON THE OWNER.  HARTFORD-EMPIRE CO. V. UNITED
STATES, 323 U.S. 386, 403; BUCKEYE POWDER CO. V. E.I. DU PONT DE
NEMOURS P. CO., 223 F. 881, 885-886 (C.A. 3D CIR.), AFF'D ON OTHER
GROUNDS, 248 U.S. 55; UNION PACIFIC COAL CO. V. UNITED STATES, 173 F.
737 (C.A. 8TH CIR.).  RATHER THE OWNER MUST BE SHOWN TO HAVE
PARTICIPATED KNOWINGLY AND ACTIVELY IN THE ALLEGED ILLEGAL ACTIVITY. 
SEE UNITED STATES V. WISE, 370 U.S. 405, 416.  CF. CORONADO COAL CO. V.
UNITED MINE WORKERS, 268 U.S. 295, 299-305; UNITED MINE WORKERS V.
CORONADO CO., 259 U.S. 344, 393-396. 

MOREOVER, THE TRIAL COURT ERRED IN ITS INSTRUCTION TO THE JURY ON
THIS ISSUE.  IT CORRECTLY INSTRUCTED THE JURY THAT UNION OWNERSHIP OF A
COAL COMPANY DID NOT VIOLATE THE LAW.  HOWEVER, IT ERRONEOUSLY REFUSED
TO INSTRUCT THE JURY THAT THE UNION'S FINANCIAL STAKE IN THE TWO COAL
COMPANIES DID NOT OF ITSELF SHOW PARTICIPATION IN AN ILLEGAL
CONSPIRACY, IF THERE WAS ONE, AND THAT THE UNION MUST HAVE BEEN SHOWN
TO HAVE PARTICIPATED THROUGH BEING PARTY TO AN OVERALL PLAN WHICH
INCLUDED THE SPOT-MARKET BIDDING OR THROUGH ITS PARTICIPATION IN THE
PARTICULAR PRACTICES COMPLAINED OF.  THUS IT IS CLEAR THAT THE JUDGMENT
AGAINST THE UNION CANNOT STAND ON THE BASIS OF THIS PART OF THE CASE. 

FINALLY, MY CONCLUSION THAT UNIONS AND EMPLOYERS ARE EXEMPT FROM THE
OPERATIONS OF THE ANTITRUST LAWS FOR ACTIVITIES INVOLVING SUBJECTS OF
MANDATORY BARGAINING IS BASED SOLELY ON CONGRESSIONAL STATUTES WHICH I
BELIEVE CLEARLY GRANT SUCH AN EXEMPTION AND NOT ON ANY VIEWS PAST OR
PRESENT AS TO THE ECONOMIC DESIRABILITY OF SUCH AN EXEMPTION.  WHETHER
IT IS WISE OR SOUND PUBLIC POLICY FOR THIS EXEMPTION TO CONTINUE TO
EXIST IN ITS PRESENT FORM, OR AT ALL, OR WHETHER THE EXEMPTION GIVES
TOO MUCH POWER TO LABOR ORGANIZATIONS, IS SOLELY FOR CONGRESS TO
DETERMINE.  THE PROBLEM OF THE APPLICATION OF THE ANTITRUST LAWS TO
COLLECTIVE BARGAINING IS BUT ANOTHER ASPECT OF THE QUESTION OF WHETHER
IT IS SOUND PUBLIC POLICY TO RECOGNIZE OR TO LIMIT THE "RIGHT OF
INDUSTRIAL COMBATANTS TO PUSH THEIR STRUGGLE TO THE LIMITS OF THE
JUSTIFICATION OF SELF-INTEREST."  DUPLEX CO. V. DEERING, SUPRA, AT 488
(DISSENTING OPINION OF MR. JUSTICE BRANDEIS). 

ON THIS ISSUE I AM IN AGREEMENT WITH THE COURT IN HUNT V. CRUMBOCH,
SUPRA, AT 825, N. 1:  "THAT WHICH CONGRESS HAS RECOGNIZED AS LAWFUL,
THIS COURT HAS NO CONSTITUTIONAL POWER TO DECLARE UNLAWFUL, BY ARGUING
THAT CONGRESS HAS ACCORDED TOO MUCH POWER TO LABOR ORGANIZATIONS." 

FOR THE REASONS EXPRESSED ABOVE, I DISSENT FROM THE OPINION OF THE
COURT BUT CONCUR IN THE REVERSAL OF THE COURT OF APPEALS IN PENNINGTON,
AND CONCUR IN THE JUDGMENT OF THE COURT IN JEWEL TEA. 

FN1  FOR THESE POLICIES, JOHN L. LEWIS, THE LONG-TIME HEAD OF THE
MINE WORKERS, HAS BEEN VARIOUSLY CONDEMNED AND PRAISED.  SEE, E.G.,
BARATZ, OP. CIT. SUPRA, AT 138-151; FOLLIARD, OP. CIT.  SUPRA; ALINSKY,
JOHN L. LEWIS 346-372 (1949); WECHSLER, LABOR BARON:  A PORTRAIT OF
JOHN L. LEWIS (1944).  AMONG THE PRAISE HAS BEEN A PRESIDENTIAL MEDAL
OF FREEDOM, AWARDED ON SEPTEMBER 14, 1964, IN WHICH MR. LEWIS WAS CITED
AS FOLLOWS:  "ELOQUENT SPOKESMAN OF LABOR, HE HAS GIVEN VOICE TO THE
ASPIRATIONS OF THE INDUSTRIAL WORKERS OF THE COUNTRY AND LED THE CAUSE
OF FREE TRADE UNIONS WITHIN A HEALTHY SYSTEM OF FREE ENTERPRISE." 

FN2  THE LEGISLATIVE HISTORY IS WELL SUMMARIZED IN BERMAN, LABOR AND
THE SHERMAN ACT 3-54 (1930).  SEE ALSO FRANKFURTER & GREENE, THE LABOR
INJUNCTION 139, N. 17 (1930). 

FN3  ONE OF THE EXPRESSED AIMS OF THE ACT APPEARS TO HAVE BEEN
APPROVAL OF SUCH UNION-EMPLOYER AGREEMENTS AS "THE PROTOCOL IN THE
SWEATED INDUSTRIES OF NEW YORK CITY AND VICINITY WHICH ABOLISHED
SWEATSHOPS AND LONG HOURS OF LABOR, AND THE BURDENSOME, MISERABLE TOIL
PREVAILING, AND ESTABLISHED THE COMBINATION OF EMPLOYERS AND OF WORK
MEN AND WORK WOMEN BY WHICH CERTAIN STANDARDS ARE TO BE ENFORCED, AND
(WHICH PROVIDED THAT) NO EMPLOYER CAN BECOME A MEMBER OF THE
MANUFACTURERS' ASSOCIATION IN THAT TRADE UNLESS HE IS WILLING TO
UNDERSIGN AN AGREEMENT BY WHICH THE CONDITIONS PREVAILING IN THE
PROTOCOL WILL BE INAUGURATED BY HIM."  H.R. REP. NO. 627, 63D CONG., 2D
SESS., 15; S. REP. NO. 698, 63D CONG., 2D SESS., 11.  THIS QUOTATION
WAS A PART OF THE STATEMENT OF SAMUEL GOMPERS TO THE HOUSE COMMITTEE IN
WHICH HE ARGUED FOR ADOPTION OF A LABOR EXEMPTION TO THE SHERMAN ACT. 
HE STATED HIS FEAR THAT WHILE HE DID NOT BELIEVE THAT COURTS WOULD
DECLARE THE EXISTENCE OF LABOR UNIONS PER SE TO BE VIOLATIONS OF THE
SHERMAN ACT, HE BELIEVED THAT SUCH PROTOCOLS AS THE ONE DISCUSSED ABOVE
WOULD BE HELD UNLAWFUL AND STATED THAT THE MANUFACTURERS' ASSOCIATION
INVOLVED HAD ALREADY BEEN SUED.  HE WAS THEREFORE SEEKING A
CONGRESSIONAL ENACTMENT DECLARING SUCH A PROTOCOL LAWFUL BOTH FOR LABOR
AND BUSINESS.  IT IS SIGNIFICANT THAT IN BOTH SENATE AND HOUSE REPORTS,
ALMOST THE ENTIRE DISCUSSION OF SEC. 6 OF THE CLAYTON ACT CONSISTS OF
THE EXTRACT FROM MR. GOMPERS' TESTIMONY.  THE INFERENCE IS INESCAPABLE
THAT THE CLAYTON ACT WAS DESIGNED, INTER ALIA, TO IMMUNIZE SUCH
PROTOCOLS FROM ANTITRUST LIABILITY. 

FN4  AS THE HOUSE COMMITTEE STATED IN REPORTING OUT THE NORRIS
LAGUARDIA ACT, "THE PURPOSE OF THE BILL IS TO PROTECT THE RIGHTS OF
LABOR IN THE SAME MANNER THE CONGRESS INTENDED WHEN IT ENACTED THE
CLAYTON ACT, OCTOBER 15, 1914 (38 STAT. L., 738), WHICH ACT, BY REASON
OF ITS CONSTRUCTION AND APPLICATION BY THE FEDERAL COURTS, IS
INEFFECTUAL TO ACCOMPLISH THE CONGRESSIONAL INTENT."  H.R. REP. NO.
669, 72D CONG., 1ST SESS., 3; SEE ALSO ID., AT 7-8. 

FN5  IN REACHING THIS CONCLUSION THE COURT RELIED, IN PART, ON THE
PROVISION OF SEC. 6 OF THE CLAYTON ACT THAT "THE LABOR OF A HUMAN BEING
IS NOT A COMMODITY OR ARTICLE OF COMMERCE  ...  NOR SHALL SUCH LABOR
ORGANIZATIONS, OR THE MEMBERS THEREOF, BE HELD OR CONSTRUED TO BE
ILLEGAL COMBINATIONS OR CONSPIRACIES IN THE RESTRAINT OF TRADE UNDER
THE ANTITRUST LAWS."  310 U.S., AT 503.   IT ALSO RELIED ON PROVISIONS
OF THE NORRIS-LAGUARDIA ACT, THE RAILWAY LABOR ACT, 48 STAT.  1185, AS
AMENDED, 45 U.S.C. SEC. 151 ET SEQ. (1958 ED.), THE NATIONAL LABOR
RELATIONS ACT, THE WALSH-HEALEY ACT, 49 STAT. 2036, AS AMENDED, 41
U.S.C. SECS. 35-45 (1958 ED.), AND THE FAIR LABOR STANDARDS ACT, 52
STAT. 1060, AS AMENDED, 29 U.S.C. SECS. 201-219 (1958 ED.).  ITS
CONCLUSION WAS THAT "THIS SERIES OF ACTS CLEARLY RECOGNIZES THAT
COMBINATIONS OF WORKERS ELIMINATING COMPETITION AMONG THEMSELVES AND
RESTRICTING COMPETITION AMONG THEIR EMPLOYERS BASED ON WAGE CUTTING ARE
NOT CONTRARY TO THE PUBLIC POLICY."  310 U.S., AT 504, N. 24. 

FN6  THE COURT CLARIFIED THIS STATEMENT BY CITATION TO UNITED STATES
V. BRIMS, 272 U.S. 549, A CASE INVOLVING AN EMPLOYER CONSPIRACY TO
ALLOCATE MARKETS.  SEE BEDFORD CO. V. STONE CUTTERS ASSN., 274 U.S. 37,
56, 64 (DISSENTING OPINION OF MR. JUSTICE BRANDEIS).  THIS, OF COURSE,
IS QUITE SIMILAR TO THE SITUATION PRESENTED IN ALLEN BRADLEY CO. V.
UNION, 325 U.S. 797.  IT IS FAR DIFFERENT FROM THE SITUATIONS IN THE
CASES DECIDED TODAY AND THE SITUATION IN THE GARMENT INDUSTRY WHICH WAS
SPECIFICALLY APPROVED BY CONGRESS IN THE CLAYTON ACT.  SEE NOTE 3,
SUPRA. 

FN7  CF. THE OPINION OF MY BROTHER WHITE IN JEWEL TEA, ANTE, AT 688
689, 692-693; INFRA, PP. 727-729, UNITED STATES V. BRIMS, 272 U.S. 549,
DISCUSSED IN NOTE 6, SUPRA. 

FN8  SEE, E.G., H.R. 3020 SECS. 301(A), (B), 80TH CONG., 1ST SESS.;
S. REP. NO. 105, 80TH CONG., 1ST SESS., 22; H.R. CONF. REP. NO. 510,
80TH CONG., 1ST SESS., 65; 93 CONG. REC.  A844-A846, A1910, 1834-1844,
3834-3836, 4130-4136, 4858-4875, 7347; S. 2573, 87TH CONG., 1ST SESS.;
SOVERN, SOME RUMINATIONS ON LABOR, THE ANTITRUST LAWS AND ALLEN
BRADLEY, 13 LAB.  L.J. 957 (1962). 

FN9  AS THIS CASE DOES NOT INVOLVE AN ALLEN BRADLEY SITUATION, IT IS
NOT NECESSARY TO DETERMINE WHETHER CONGRESS, IN ENACTING THESE TAFT
HARTLEY BOYCOTT AND RELATED REVISIONS TO THE ACT AND AT THE SAME TIME
REJECTING AN ATTEMPTED CODIFICATION OF THE ALLEN BRADLEY DOCTRINE IN
THE ANTITRUST LAWS, INTENDED THAT ALL UNION ACTIVITIES IN THIS AREA BE
COVERED SOLELY UNDER THE COMPREHENSIVE REGULATION OF THE LABOR STATUTES
WITH THEIR RESTRICTED INJUNCTIVE AND DAMAGE PROVISIONS.  SEE SOURCES
CITED IN NOTE 8, SUPRA.  CF. TEAMSTERS UNION V. LESTER MORTON TRUCKING
CO., 377 U.S. 252; TEAMSTERS UNION V. OLIVER, 358 U.S. 283; GARNER V.
TEAMSTERS UNION, 346 U.S. 485. 

FN10  AS AN ANTITRUST ISSUE, SEE UNITED STATES V. HUTCHESON, SUPRA. 

FN11  AS AN ANTITRUST ISSUE, SEE UNITED STATES V. HOD CARRIERS, 313
U.S. 539, AFFIRMING UNITED STATES V. CARROZZO, 37 F. SUPP. 191
(D.C.N.D. ILL.). 

FN12  AS ANTITRUST ISSUES, SEE UNITED STATES V. BUILDING &
CONSTRUCTION TRADES COUNCIL, 313 U.S. 539. 

FN13  IN PENNINGTON THE COLLECTIVE BARGAINING AGREEMENT RESTRICTED
SUBLEASING, WHICH IS A MINING FORM OF SUBCONTRACTING.  INDEED, THE
PENNINGTON CASE BRISTLES WITH POTENTIAL UNFAIR LABOR PRACTICES.   THE
MINE WORKERS ALLEGEDLY IMPOSED THE NATIONAL WAGE AGREEMENT ON THE SMALL
COAL OPERATORS AT A TIME WHEN THE UNION DID NOT REPRESENT THEIR
EMPLOYEES.  FOR A MINORITY UNION TO ENTER INTO A COLLECTIVE BARGAINING
CONTRACT COVERING ALL THE EMPLOYEES OF A UNIT HAS BEEN HELD TO INFRINGE
THE RIGHTS OF EMPLOYEES UNDER SEC. 7 OF THE NLRA.  GARMENT WORKERS V.
LABOR BOARD, 366 U.S. 731.  A "PROTECTIVE WAGE CLAUSE" IN THE NATIONAL
WAGE AGREEMENT PROVIDED THAT SIGNATORY COMPANIES WOULD NOT BUY COAL
MINED UNDER TERMS AND CONDITIONS LESS FAVORABLE THAN THOSE IN THE
NATIONAL WAGE AGREEMENT.  THE LABOR BOARD HAS HELD THAT THIS TYPE OF
CLAUSE VIOLATES SEC. 8(E) OF THE NLRA, AS AMENDED, 29 U.S.C. SEC.
158(E) (1958 ED., SUPP. V).  SEE RAYMOND O. LEWIS, W.A. BOYLE & JOHN
OWENS, ETC., 144 N.L.R.B. 228.  SEE ALSO RAYMOND O. LEWIS ET AL., 148
N.L.R.B. - , 1964 CCH, N.L.R.B. DECISIONS PARA. 13,334. 

FN14  SEE PP. 700-701, SUPRA; APEX HOSIERY CO. V. LEADER, SUPRA. 

FN15  52 STAT. 1060, AS AMENDED, 29 U.S.C. SECS. 201-219 (1958 ED.). 

FN16  49 STAT. 2036, AS AMENDED, 41 U.S.C. SECS. 35-45 (1958 ED.). 

FN17  46 STAT. 1494, AS AMENDED, 40 U.S.C. SEC. 276A (1958 ED.). 

FN18  ALTHOUGH I AGREE WITH MY BROTHER WHITE IN JEWEL TEA THAT THE
DOCTRINE OF PRIMARY JURISDICTION DOES NOT APPLY HERE, DECISIONS OF THE
LABOR BOARD AS TO WHAT CONSTITUTES A SUBJECT OF MANDATORY BARGAINING
ARE, OF COURSE, VERY SIGNIFICANT IN DETERMINATION OF THE APPLICABILITY
OF THE LABOR EXEMPTION. 

FN19  SEE, E.G., WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468; GARNER
V. TEAMSTERS UNION, 346 U.S. 485, 490-491.  ALTHOUGH ALLEN BRADLEY HELD
THAT THE CLAYTON AND NORRIS-LAGUARDIA ACTS PRECLUDED FEDERAL COURTS
FROM ENJOINING ACTIVITIES CONCERNED WITH EVEN SOME NONMANDATORY
SUBJECTS OF BARGAINING, CONGRESS HAS SINCE PROVIDED THAT UNION
INSISTENCE ON BARGAINING OVER NONMANDATORY SUBJECTS IS AN UNFAIR LABOR
PRACTICE, CF. LABOR BOARD V. WOOSTER DIVISION OF BORG-WARNER CORP., 356
U.S. 342, AND THUS THE LABOR BOARD CAN ORDER THE UNION TO CEASE AND
DESIST FROM SUCH INSISTENCE AS WELL AS FROM AUXILIARY CONDUCT LIKE
STRIKES DESIGNED TO EFFECTUATE IT; SEE LOCAL 164, BROTHERHOOD OF
PAINTERS V. LABOR BOARD, 110 U.S. APP. D.C. 294, 293 F.2D 133. 

FN20  TODAY, BETWEEN 80% AND 100% OF THE WORKERS UNDER UNION
AGREEMENT ARE COVERED BY MULTI-EMPLOYER CONTRACTS IN SUCH IMPORTANT
INDUSTRIES AS MEN'S AND WOMEN'S CLOTHING, COAL MINING, BUILDING
CONSTRUCTION, HOTEL, LONGSHORING, MARITIME, TRUCKING, AND WAREHOUSING. 
BETWEEN 60% AND 80% OF UNIONIZED WORKERS ARE UNDER MULTI-EMPLOYER PACTS
IN BAKING, BOOK AND JOB PRINTING, CANNING AND PRESERVING, TEXTILE
DYEING AND FINISHING, GLASS AND GLASSWARE, MALT LIQUOR, POTTERY AND
RETAIL TRADES.  SEE REYNOLDS, LABOR ECONOMICS AND LABOR RELATIONS 170
(3D ED. 1959).  FURTHERMORE, IN SOME OTHER MAJOR INDUSTRIES RELATIVELY
UNIFORM TERMS OF EMPLOYMENT ARE OBTAINED THROUGH THE NEGOTIATION OF A
CONTRACT WITH ONE LEADING EMPLOYER AND THE SUBSEQUENT ACCEPTANCE OF
THAT CONTRACT'S KEY PROVISION, WITH ONLY MINOR MODIFICATIONS BY THE
OTHER EMPLOYERS IN THE INDUSTRY.  SEE CHAMBERLAIN, COLLECTIVE
BARGAINING 259-263 (1951).    FN21  SECTION 6 OF THE CLAYTON ACT.  SEE
P. 701, SUPRA. 

FN22  SEE, E.G., CORONADO COAL CO. V. UNITED MINE WORKERS, 268 U.S.
295 (UNION PRIMARY STRIKE ACTIVITIES IN AN ORGANIZATIONAL CAMPAIGN
ENJOINED ON THE GROUNDS THAT THE "PURPOSE" OF THE ORGANIZATIONAL
CAMPAIGN WAS TO PREVENT NONUNION COAL FROM UNDERCUTTING UNION COAL);
UNITED STATES V. RAILWAY EMPLOYEES' DEPT., 283 F. 479 (D.C.N.D.
ILL.)(PRIMARY STRIKE AGAINST RAILROAD HELD INVALID ON THE GROUND THAT
IT INTERRUPTED COMMERCE); BEDFORD CO. V. STONE CUTTERS ASSN., 274 U.S.
37 (UNION'S UNILATERAL REFUSAL TO WORK ON NONUNION GOODS HELD
INVALID). 

FN23  SEE EXEC. ORDERS NOS. 9250 AND 9328, 7 FED. REG. 7871, 8 FED.
REG. 4681, PROMULGATED PURSUANT TO THE ACT OF OCTOBER 2, 1942, 56 STAT.
765. 

FN24  SECTION 6 OF THE CLAYTON ACT.  SEE P. 701, SUPRA. 

FN25  THE COURT IN PENNINGTON STATES THAT IT "CANNOT CONCLUDE THAT
THE NATIONAL LABOR POLICY PROVIDES ANY SUPPORT" FOR AGREEMENTS WHEREBY
UNIONS UNDERTAKE TO ATTEMPT TO OBTAIN UNIFORM TERMS FROM OTHER
EMPLOYERS IN THE INDUSTRY.  PENNINGTON, ANTE, AT 667.  IN MAKING THIS
STATEMENT THE COURT IGNORES CLEAR CONGRESSIONAL EXPRESSIONS IN SECS. 6
AND 20 OF THE CLAYTON ACT, THE NORRIS-LAGUARDIA ACT, THE FAIR LABOR
STANDARDS ACT, THE WALSH-HEALEY PUBLIC CONTRACTS ACT, THE DAVIS-BACON
ACT, AND THE EXPRESS PURPOSE OF THE NATIONAL LABOR RELATIONS ACT.  SEE
GENERALLY, PP.  709-713, SUPRA. MOREOVER, THE COURT'S RELIANCE ON THREE
OLD LABOR BOARD CASES FOR ITS CONCLUSIONS IS CLEARLY MISPLACED.  THESE
CASES HOLD, AT MOST, AS THE COURT ITSELF RECOGNIZES, THAT AN EMPLOYER
MAY NOT REFUSE TO RECOGNIZE A UNION CHOSEN BY HIS EMPLOYEES OR REFUSE
TO SIGN ANY CONTRACT UNTIL SUCH TIME AS THE UNION HAS SUCCESSFULLY
ORGANIZED THE EMPLOYER'S COMPETITORS.  SUCH SITUATIONS, OF COURSE, ARE
COMPLETELY DIFFERENT FROM THE SITUATION IN WHICH AN EMPLOYER WITH
ESTABLISHED COLLECTIVE BARGAINING RELATIONS VOLUNTARILY AGREES WITH THE
UNION THAT THE UNION WILL ATTEMPT TO HAVE OTHER EMPLOYERS ACCEPT
SIMILAR OR UNIFORM TERMS.  THEY ALSO ARE COMPLETELY DIFFERENT FROM THE
SITUATION IN WHICH AN EMPLOYER SIGNS A COLLECTIVE BARGAINING AGREEMENT
THE TERMS OF WHICH CONTAIN A "MOST FAVORED NATION" CLAUSE, OR LABOR
STANDARDS ON A SLIDING SCALE ADJUSTED TO THE AVERAGE OR SOME OTHER
PREVAILING WAGE STANDARD. 

FN26  IT IS CLEAR THAT THE SMALL SERVICE BUTCHER SHOPS CANNOT OPERATE
AT NIGHT WITHOUT BUTCHERS ON DUTY.  THERE IS NO DOUBT THAT THE UNION
COULD BARGAIN WITH THEM AS TO THE HOURS ITS MEMBERS WORKED. 

FN27  SEE, E.G., HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON INTERSTATE COMMERCE ON S. 1417, 74TH CONG., 1ST SESS.;
HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 4668,
74TH CONG., 2D SESS.; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON INTERSTATE COMMERCE ON S. 1, 75TH CONG., 1ST SESS.,
HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON EDUCATION AND
LABOR, WELFARE OF MINERS, 80TH CONG., 1ST SESS.; HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE ON S.
RES. 274, 81ST CONG., 2D SESS.; HEARINGS BEFORE A SUBCOMMITTEE OF THE
SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, CAUSES OF UNEMPLOYMENT IN
THE COAL AND OTHER DOMESTIC INDUSTRIES, 84TH CONG., 1ST SESS. 

FN28 SEE PP. 712-713, SUPRA. 

FN29  SEE NOTES 8, 9, SUPRA, AND ACCOMPANYING TEXT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
CLARK CONCUR, DISSENTING. 

IF WE FOLLOWED ALLEN BRADLEY CO. V. UNION, 325 U.S. 797,* WE WOULD
HOLD WITH THE COURT OF APPEALS THAT THIS MULTI-EMPLOYER AGREEMENT WITH
THE UNION NOT TO SELL MEAT BETWEEN 6 P.M. AND 9 A.M. WAS NOT IMMUNIZED
FROM THE ANTITRUST LAWS AND THAT RESPONDENT'S EVIDENCE MADE OUT A PRIMA
FACIE CASE THAT IT WAS IN FACT A VIOLATION OF THE SHERMAN ACT. 

*THE ALLEN BRADLEY DECISION HAS BEEN REAFFIRMED AND APPROVED BY THE
COURT ON NUMEROUS OCCASIONS.  SEE BROTHERHOOD OF CARPENTERS V. UNITED
STATES, 330 U.S. 395, 400, 411; UNITED STATES V. WOMEN'S SPORTSWEAR
ASSN., 336 U.S. 460, 464; GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490,
497; UNITED STATES V. EMPLOYING PLASTERERS ASSN., 347 U.S. 186, 190;
TEAMSTERS UNION V. OLIVER, 358 U.S. 283, 296; MEAT DRIVERS V. UNITED
STATES, 371 U.S. 94, 99-101. 

IF, IN THE PRESENT CASE, THE EMPLOYERS ALONE AGREED NOT TO SELL MEAT
FROM 6 P.M. TO 9 A.M., THEY WOULD BE GUILTY OF AN ANTICOMPETITIVE
PRACTICE, BARRED BY THE ANTITRUST LAWS.  ABSENT AN AGREEMENT OR
CONSPIRACY, A PROPRIETOR CAN KEEP HIS ESTABLISHMENT OPEN FOR SUCH HOURS
AS HE CHOOSES.  CF. TEXTILE WORKERS V. DARLINGTON MFG. CO., 380 U.S.
263.  MY BROTHER WHITE RECOGNIZES, AS HE MUST, THAT THE AGREEMENT IN
THIS CASE HAS AN "EFFECT ON COMPETITION THAT IS APPARENT AND REAL" AND
THAT IT IS AN "OBVIOUS RESTRAINT ON THE PRODUCT MARKET," ANTE, PP.  691
AND 692.  THAT JEWEL HAS BEEN COERCED BY THE UNIONS INTO RESPECTING
THIS AGREEMENT MEANS THAT JEWEL CANNOT USE CONVENIENCE OF SHOPPING
HOURS AS A MEANS OF COMPETITION.  AS THE COURT OF APPEALS POINTED OUT,
331 F.2D, AT 550, THERE IS NOTHING PROCOMPETITIVE ABOUT THIS
AGREEMENT.  CF. CHICAGO BOARD OF TRADE V. UNITED STATES, 246 U.S. 231. 

AT THE CONCLUSION OF RESPONDENT'S CASE, THE DISTRICT COURT DISMISSED
ASSOCIATED AND BROMANN FROM THE ACTION, WHICH WAS TRIED WITHOUT A JURY,
ON THE GROUND THAT THERE WAS NO EVIDENCE OF A CONSPIRACY BETWEEN
ASSOCIATED AND THE UNIONS.  BUT IN THE CIRCUMSTANCES OF THIS CASE THE
COLLECTIVE BARGAINING AGREEMENT ITSELF, OF WHICH THE DISTRICT COURT
SAID THERE WAS CLEAR PROOF, WAS EVIDENCE OF A CONSPIRACY AMONG THE
EMPLOYERS WITH THE UNIONS TO IMPOSE THE MARKETING-HOURS RESTRICTION ON
JEWEL VIA A STRIKE THREAT BY THE UNIONS.  THIS TENDED TO TAKE FROM THE
MERCHANTS WHO AGREED AMONG THEMSELVES THEIR FREEDOM TO WORK THEIR OWN
HOURS AND TO SUBJECT ALL WHO, LIKE JEWEL, WANTED TO SELL MEAT AFTER 6
P.M. TO THE COERCION OF THREATENED STRIKES, ALL OF WHICH IF DONE IN
CONCERT ONLY BY BUSINESSMEN WOULD VIOLATE THE ANTITRUST LAWS.  SEE
FASHION GUILD V. FEDERAL TRADE COMM'N, 312 U.S. 457, 465. 

IN SAYING THAT THERE WAS NO CONSPIRACY, THE DISTRICT COURT FAILED TO
GIVE ANY WEIGHT TO THE COLLECTIVE BARGAINING AGREEMENT ITSELF AS
EVIDENCE OF A CONSPIRACY AND TO THE CONTEXT IN WHICH IT WAS WRITTEN. 
THIS COURT MAKES THE SAME MISTAKE.  WE SAID IN ALLEN BRADLEY CO. V.
UNION, SUPRA, AT 808, "  ...  WE THINK CONGRESS NEVER INTENDED THAT
UNIONS COULD, CONSISTENTLY WITH THE SHERMAN ACT, AID NON-LABOR GROUPS
TO CREATE BUSINESS MONOPOLIES AND TO CONTROL THE MARKETING OF GOODS AND
SERVICES."  HERE THE CONTRACT OF THE UNIONS WITH A LARGE NUMBER OF
EMPLOYERS SHOWS IT WAS PLANNED AND DESIGNED NOT MERELY TO CONTROL BUT
ENTIRELY TO PROHIBIT "THE MARKETING OF GOODS AND SERVICES" FROM 6 P.M.
UNTIL 9 A.M. THE NEXT DAY.  SOME MERCHANTS RELIED CHIEFLY ON PRICE
COMPETITION TO DRAW TRADE; OTHERS EMPLOYED COURTESY, QUICK SERVICE, AND
KEEPING THEIR DOORS OPEN LONG HOURS TO MEET THE CONVENIENCE OF
CUSTOMERS.  THE UNIONS HERE INDUCED A LARGE GROUP OF MERCHANTS TO USE
THEIR COLLECTIVE STRENGTH TO HURT OTHERS WHO WANTED THE COMPETITIVE
ADVANTAGE OF SELLING MEAT AFTER 6 P.M.  UNLESS ALLEN BRADLEY IS EITHER
OVERRULED OR GREATLY IMPAIRED, THE UNIONS CAN NO MORE AID A GROUP OF
BUSINESSMEN TO FORCE THEIR COMPETITORS TO FOLLOW UNIFORM STORE
MARKETING HOURS THAN TO FORCE THEM TO SELL AT FIXED PRICES.  BOTH
PRACTICES TAKE AWAY THE FREEDOM OF TRADERS TO CARRY ON THEIR BUSINESS
IN THEIR OWN COMPETITIVE FASHION. 

MY BROTHER WHITE'S CONCLUSION THAT THE CONCERN OF THE UNION MEMBERS
OVER MARKETING HOURS IS "IMMEDIATE AND DIRECT" DEPENDS UPON THERE BEING
A NECESSARY CONNECTION BETWEEN MARKETING HOURS AND WORKING HOURS.  THAT
CONNECTION IS FOUND IN THE DISTRICT COURT'S FINDING THAT "IN STORES
WHERE MEAT IS SOLD AT NIGHT IT IS IMPRACTICAL TO OPERATE WITHOUT EITHER
BUTCHERS OR OTHER EMPLOYEES."  215 F. SUPP. 839, 846.  IT IS, HOWEVER,
UNDISPUTED THAT ON SOME NIGHTS JEWEL DOES SO OPERATE IN SOME OF ITS
STORES IN INDIANA, AND EVEN IN CHICAGO IT SOMETIMES OPERATES WITHOUT
BUTCHERS AT NIGHT IN THE SALE OF FRESH POULTRY AND SAUSAGE, WHICH ARE
EXEMPT FROM THE UNION BAN. 

IT IS SAID THAT EVEN IF NIGHT SELF-SERVICE COULD BE CARRIED ON
WITHOUT BUTCHERS, STILL THE UNION INTEREST IN STORE HOURS WOULD BE
IMMEDIATE AND DIRECT BECAUSE COMPETITORS WOULD HAVE TO STAY OPEN TOO OR
BE PUT AT A DISADVANTAGE - AND SOME OF THESE COMPETITORS WOULD BE NON
SELF-SERVICE STORES THAT WOULD HAVE TO EMPLOY UNION BUTCHERS AT NIGHT. 
BUT ALLEN BRADLEY FORECLOSES SUCH AN EXPANSIVE VIEW OF THE LABOR
EXEMPTION TO THE ANTITRUST LAWS. 
..END :








FEDERAL TRADE COMMISSION V. TEXACO 381 U.S. 739 


NO. 635.  DECIDED JUNE 7, 1965.  - CERTIORARI GRANTED; 118 U.S. APP.
D.C. 366, 336 F.2D 754, VACATED AND REMANDED. 


THE COURT OF APPEALS SET ASIDE A FEDERAL TRADE COMMISSION (FTC) CEASE
AND-DESIST ORDER ON THE GROUNDS THAT THE FTC CHAIRMAN WAS DISQUALIFIED
FOR PREJUDGING THE CASE AND THE ORDER WAS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE AND REMANDED IT TO THE FTC WITH INSTRUCTIONS TO DISMISS IN
VIEW OF THE LONG DELAYS.  NO REVIEW OF THE CHAIRMAN'S DISQUALIFICATION
WAS SOUGHT.  THE JUDGMENT IS REMANDED WITH INSTRUCTIONS TO REMAND
IMMEDIATELY TO THE FTC FOR FURTHER PROCEEDINGS, WITHOUT PARTICIPATION
OF THE CHAIRMAN, IN LIGHT OF ATLANTIC REFINING CO. V. FEDERAL TRADE
COMMISSION, ANTE, P. 357. 

FEDERAL TRADE COMMISSION V. TEXACO, INC., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

IN THIS CASE THE FEDERAL TRADE COMMISSION ENTERED A CEASE-AND-DESIST
ORDER PROHIBITING TEXACO, INC., AND THE B.F. GOODRICH COMPANY FROM
PARTICIPATING IN ANY SALES-COMMISSION PROGRAM FOR THE DISTRIBUTION OF
TIRES, BATTERIES AND ACCESSORIES.  THE COURT OF APPEALS SET THE ORDER
ASIDE AND REMANDED TO THE COMMISSION WITH INSTRUCTIONS TO DISMISS THE
COMPLAINT.  THE COURT HELD, FIRST, THAT CHAIRMAN DIXON WAS DISQUALIFIED
FROM PARTICIPATING IN THE DECISION BECAUSE HE HAD INDICATED IN A SPEECH
MADE WHILE THE CASE WAS PENDING THAT HE HAD PREJUDGED IT.  THE MAJORITY
OF THE COURT HELD, FURTHER, THAT THE COMMISSION'S ORDER WAS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE.  ALTHOUGH
IT RECOGNIZED THAT UNDER THESE CIRCUMSTANCES A REMAND WOULD ORDINARILY
BE CALLED FOR, THE COURT CONCLUDED THAT BECAUSE OF THE DELAYS THAT HAD
EXISTED THROUGHOUT THE LITIGATION THE COMPLAINT SHOULD BE DISMISSED. 

THE UNITED STATES DOES NOT SEEK REVIEW OF THE RULING THAT CHAIRMAN
DIXON WAS DISQUALIFIED FROM PARTICIPATING IN THIS CASE.  WE THEREFORE
VENTURE NO OPINION AS TO THE CORRECTNESS OF THAT CONCLUSION.  THE
PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS VACATED
AND THE CASE IS REMANDED WITH INSTRUCTIONS TO REMAND IT IMMEDIATELY TO
THE FEDERAL TRADE COMMISSION FOR FURTHER PROCEEDINGS, WITHOUT THE
PARTICIPATION OF CHAIRMAN DIXON, IN LIGHT OF ATLANTIC REFINING CO. V.
FEDERAL TRADE COMM'N, ANTE, P. 357.  THE JUDGMENT SHALL ISSUE
FORTHWITH.  VACATED AND REMANDED. 

MR. JUSTICE GOLDBERG WOULD VACATE THE JUDGMENT OF THE COURT OF
APPEALS AND REMAND THE CASE FOR RECONSIDERATION BY THE FEDERAL TRADE
COMMISSION, WITHOUT THE PARTICIPATION OF CHAIRMAN DIXON, IN ACCORDANCE
WITH THE VIEWS EXPRESSED IN MR. JUSTICE GOLDBERG'S DISSENTING OPINION
IN ATLANTIC REFINING CO. V. FEDERAL TRADE COMM'N, ANTE, AT 382. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT
OF THE COURT OF APPEALS FOR THE REASONS STATED IN MR. JUSTICE STEWART'S
DISSENTING OPINION IN ATLANTIC REFINING CO. V. FEDERAL TRADE COMM'N,
ANTE, AT 377. 
..END :
















CAMERON V. JOHNSON, GOVERNOR OF MISSISSIPPI 381 U.S. 741 


NO. 587, MISC.  DECIDED JUNE 7, 1965.  - JUDGMENT VACATED AND CAUSE
REMANDED - REPORTED BELOW: 244 F. SUPP. 846. 


CAMERON ET AL. V. JOHNSON, GOVERNOR OF MISSISSIPPI, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF MISSISSIPPI. 

PER CURIAM. 

APPELLANTS BROUGHT THIS ACTION, INTER ALIA, UNDER SEC. 1979 OF THE
REVISED STATUTES, 42 U.S.C. SEC. 1983 (1958 ED.), TO ENJOIN ENFORCEMENT
OF THE MISSISSIPPI ANTI-PICKETING STATUTE,* ON THE GROUNDS THAT IT WAS
AN UNCONSTITUTIONALLY BROAD REGULATION OF SPEECH, AND THAT IT WAS BEING
APPLIED FOR THE PURPOSE OF DISCOURAGING APPELLANTS' CIVIL RIGHTS
ACTIVITIES. 

*HOUSE BILL NO. 546, GEN. LAWS OF MISS.  1964, C. 343. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
JUDGMENT IS VACATED AND THE CAUSE REMANDED FOR RECONSIDERATION IN LIGHT
OF DOMBROWSKI V. PFISTER, 380 U.S. 479.  ON REMAND, THE DISTRICT COURT
SHOULD FIRST CONSIDER WHETHER 28 U.S.C. SEC. 2283 (1958 ED.)  BARS A
FEDERAL INJUNCTION IN THIS CASE, SEE 380 U.S., AT 484, N. 2.  IF SEC.
2283 IS NOT A BAR, THE COURT SHOULD THEN DETERMINE WHETHER RELIEF IS
PROPER IN LIGHT OF THE CRITERIA SET FORTH IN DOMBROWSKI. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

I DISSENT FROM THE REVERSAL OF THIS JUDGMENT AND FROM THE MANNER IN
WHICH IT IS DONE.  A CRYPTIC, UNINFORMATIVE PER CURIAM ORDER IS NO WAY,
I THINK, FOR THIS COURT TO DECIDE A CASE INVOLVING AS THIS ONE DOES A
STATE'S POWER TO MAKE IT AN OFFENSE FOR PEOPLE TO OBSTRUCT PUBLIC
STREETS AND HIGHWAYS AND TO BLOCK INGRESS AND EGRESS TO AND FROM ITS
PUBLIC BUILDINGS AND PROPERTIES.  THE CASE ALSO INVOLVES THE QUESTION
WHETHER, HAVING PASSED SUCH A LAW, VALID ON ITS FACE, THE STATE CAN
PROSECUTE OFFENDERS IN ITS OWN COURTS OR WHETHER UNITED STATES COURTS
HAVE POWER TO ENJOIN ALL STATE PROSECUTIONS MERELY BECAUSE OF A CHARGE
THAT THE LAW IS UNCONSTITUTIONAL ON ITS FACE, WITHOUT FIRST DETERMINING
THE CONSTITUTIONALITY OF THE STATUTE. 

EVERY PERSON WHO HAS THE SLIGHTEST INFORMATION ABOUT WHAT IS GOING ON
IN THIS COUNTRY CAN UNDERSTAND THE IMPORTANCE OF THESE ISSUES.  THE
SUMMARY DISPOSITION THE COURT MAKES OF THIS CASE FAILS PROPERLY TO
ENLIGHTEN STATE OR FEDERAL COURTS OR THE PEOPLE WHO DESERVE TO KNOW
WHAT ARE THE RIGHTS OF THE PEOPLE, THE RIGHTS OF AFFECTED GROUPS, THE
RIGHTS OF THE FEDERAL GOVERNMENT, AND THE RIGHTS OF THE STATES IN THIS
FIELD OF ACTIVITIES WHICH ENCOMPASSES SOME OF THE MOST BURNING,
PRESSING AND IMPORTANT ISSUES OF OUR TIME.  THERE ARE MANY EARNEST,
HONEST, GOOD PEOPLE IN THIS NATION WHO ARE ENTITLED TO KNOW EXACTLY HOW
FAR THEY HAVE A CONSTITUTIONAL RIGHT TO GO IN USING THE PUBLIC STREETS
TO ADVOCATE CAUSES THEY CONSIDER JUST.  STATE OFFICIALS ARE ALSO
ENTITLED TO THE SAME INFORMATION.  THE COURT HAS ALREADY WAITED
ENTIRELY TOO LONG, IN MY JUDGMENT, TO PERFORM ITS DUTY OF CLARIFYING
THESE CONSTITUTIONAL ISSUES.  (FN1)  THESE ISSUES ARE OF SUCH GREAT
IMPORTANCE THAT I AM OF THE OPINION THAT BEFORE THIS COURT RELEGATES
THE STATES TO THE POSITION OF MERE ONLOOKERS IN STRUGGLES OVER THEIR
STREETS AND THE ACCESSES TO THEIR PUBLIC BUILDINGS, THIS COURT SHOULD
AT LEAST WRITE AN OPINION MAKING CLEAR TO THE STATES AND INTERESTED
PEOPLE THE BOUNDARIES BETWEEN WHAT THEY CAN DO IN THIS FIELD AND WHAT
THEY CANNOT.  TODAY'S ESOTERIC AND MORE OR LESS MYSTERIOUS PER CURIAM
ORDER GIVES NO SUCH INFORMATION. 

THIS ACTION WAS BROUGHT BY AND ON BEHALF OF PICKETERS AND
DEMONSTRATORS IN MISSISSIPPI, SOME OF WHOM HAVE CHARGES NOW PENDING
AGAINST THEM WHICH WERE BROUGHT IN THE MISSISSIPPI STATE COURTS (FN2)
FOR VIOLATING A MISSISSIPPI STATUTE WHICH PROVIDED: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, SINGLY OR IN CONCERT WITH
OTHERS, TO ENGAGE IN PICKETING OR MASS DEMONSTRATIONS IN SUCH A MANNER
AS TO OBSTRUCT OR INTERFERE WITH FREE INGRESS OR EGRESS TO AND FROM ANY
PUBLIC PREMISES, STATE PROPERTY, COUNTY OR MUNICIPAL COURTHOUSES, CITY
HALLS, OFFICE BUILDINGS, JAILS, OR OTHER PUBLIC BUILDINGS OR PROPERTY
OWNED BY THE STATE OF MISSISSIPPI OR ANY COUNTY OR MUNICIPAL GOVERNMENT
LOCATED THEREIN OR WITH THE TRANSACTION OF PUBLIC BUSINESS OR
ADMINISTRATION OF JUSTICE THEREIN OR THEREON CONDUCTED OR SO AS TO
OBSTRUCT OR INTERFERE WITH FREE USE OF PUBLIC STREETS, SIDEWALKS OR
OTHER PUBLIC WAYS ADJACENT OR CONTIGUOUS THERETO."  (FN3) 

THEIR COMPLAINT IN THE UNITED STATES DISTRICT COURT ASKED THAT THE
GOVERNOR OF MISSISSIPPI AND OTHER STATE OFFICIALS BE ENJOINED FROM
ENFORCING THE STATUTE AGAINST THEM AND OTHERS.  THE COMPLAINT ALLEGED
THAT THE LAW WAS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED TO THE
PLAINTIFFS AND PERSONS SIMILARLY SITUATED BECAUSE THE LANGUAGE OF THE
STATUTE WAS SO VAGUE AND AMBIGUOUS THAT A PERSON OF ORDINARY
INTELLIGENCE COULD NOT UNDERSTAND IT, AND SO BROAD AND SWEEPING IN ITS
TERMS THAT IT COULD BE USED, HAD BEEN USED, AND WOULD BE USED, TO
HARASS AND PERSECUTE THE PLAINTIFFS AND OTHERS, NOT MERELY FOR BLOCKING
STREETS AND DOORS AND PASSAGEWAYS, BUT ALSO FOR SIMPLY PICKETING AND
DEMONSTRATING, ACTIVITIES WHICH THIS STATUTE DOES NOT PROHIBIT.  (FN4)
THEY ALLEGED IN ADDITION THAT THE MISSISSIPPI LEGISLATURE ACTUALLY
PASSED THE LAW TO DISCOURAGE PICKETERS AND DEMONSTRATORS FROM
PROTESTING AGAINST STATE DENIAL OF VOTING RIGHTS TO NEGROES.  THE
DISTRICT COURT MAJORITY FOUND AS A FACT ON THE EVIDENCE STIPULATED BY
THE PARTIES THAT NEITHER THE PLAINTIFFS NOR ANYONE ELSE HAD BEEN
INTERFERED WITH FOR SIMPLY PICKETING AND DEMONSTRATING, (FN5) AND ALSO
FOUND THAT: 

"ON THE OCCASIONS IN SUIT WHEN SOME OF THE PLAINTIFFS WERE ARRESTED
AND CHARGED WITH VIOLATING THIS ACT, THAT SUCH PERSONS DELIBERATELY AND
INTENTIALLY (SIC) BLOCKED THE SIDEWALK AND ONE OF THE ENTRANCES TO THE
COUNTY COURTHOUSE IN FORREST COUNTY, MISSISSIPPI, BY WALKING SO CLOSE
TOGETHER AS TO MAKE USE OF SUCH ENTRANCE AND EXIT TO AND FROM SAID
COUNTY COURTHOUSE BY THE OFFICIALS AND BUSINESS VISITORS IMPOSSIBLE." 

THE DISTRICT COURT HELD THAT NO SERIOUS CLAIM COULD BE MADE THAT THE
STATUTE WAS UNCONSTITUTIONALLY VAGUE OR TOO BROAD ON ITS FACE, AND
THEREFORE REFUSED TO ISSUE AN INJUNCTION FORBIDDING THE PROSECUTION OF
OFFENSES UNDER THAT LAW.  AND HAVING FOUND FROM THE EVIDENCE THAT THERE
HAD BEEN NO HARASSMENT OF THE PLAINTIFFS, EXCEPT AS HARASSMENT COULD BE
SAID TO EXIST IN THE ORDINARY ENFORCEMENT OF ANY VALID LAW, THE COURT
REFUSED TO ENJOIN THE STATE OFFICIALS FROM ENFORCING THE LAW AGAINST
THEM AND OTHERS, AND DISMISSED THE COMPLAINT.  (FN6) 

IF, AS I BELIEVE, THE MISSISSIPPI STATUTE IS NOT UNCONSTITUTIONAL ON
ITS FACE, THEN THE DISTRICT COURT IN DISMISSING THE COMPLAINT AND
LEAVING THE TRIALS TO THE STATE COURTS ACTED IN ACCORDANCE WITH AN
UNBROKEM LINE OF THIS COURT'S CASES GOING BACK TO THE EARLY DAYS OF
THIS COUNTRY.  SEE, E.G., DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157;
WATSON V. BUCK, 313 U.S. 387; BEAL V. MISSOURI PAC. R. CO., 312 U.S.
45; SPIELMAN MOTOR SALES CO. V. DODGE, 295 U.S. 89; FENNER V. BOYKIN,
271 U.S. 240.  IT IS TRUE THAT EX PARTE YOUNG, 209 U.S. 123, HELD THAT
STATE OFFICIALS COULD BE ENJOINED FROM HARASSING PEOPLE BY STARTING
MULTITUDINOUS CRIMINAL PROSECUTIONS AGAINST THEM WHERE SEVERE
CUMULATIVE PUNISHMENTS MIGHT ACCRUE BEFORE THE CONSTITUTIONALITY OF THE
STATE LAW INVOLVED COULD BE TESTED.  IN THE ABSENCE OF SOME SUCH
EXTRAORDINARY SITUATION, HOWEVER, THIS COURT HAS UNIFORMLY HELD THAT
FEDERAL COURTS SHOULD REFRAIN FROM INTERFERING WITH ENFORCEMENT OF
STATE CRIMINAL LAWS.  THUS IN DOUGLAS V. CITY OF JEANNETTE, SUPRA, THIS
COURT FOUND NO REASON TO PERMIT A FEDERAL COURT TO ENJOIN A STATE
CRIMINAL PROCEEDING EVEN THOUGH THE STATUTE INVOLVED WAS THE SAME DAY
DECLARED UNCONSTITUTIONAL IN A SIMILAR APPLICATION.  MURDOCK V.
PENNSYLVANIA, 319 U.S. 105.  (FN7) 

THE COURT IN ITS CRYPTIC PER CURIAM ORDER DIRECTS THAT "ON REMAND,
THE DISTRICT COURT SHOULD FIRST CONSIDER WHETHER 28 U.S.C. SEC. 2283
(1958 ED.)  BARS A FEDERAL INJUNCTION IN THIS CASE  ...  ."  BUT THE
DISTRICT COURT HAS ALREADY CONSIDERED SEC. 2283 (FN8) AND AT THE VERY
BEGINNING OF ITS OPINION STATED THAT SEC. 2283: 

"  ...  IS NOT JURISDICTIONAL, BUT EXPRESSES VERY CLEARLY AND
DEFINITELY THE POLICY AND THINKING OF CONGRESS.  SUCH A STATUTE HAS
BEEN ON THE BOOKS FOR MANY YEARS AND STILL STANDS IN THE ABOVE QUOTED
FORM.  CERTAINLY THERE ARE TIMES AND OCCASIONS WHICH ARE EXCEPTIONAL,
WHEN IT IS PROPER FOR THE COURT TO ENJOIN THE PROSECUTION OF A CRIMINAL
CASE, BUT THE FACTS OF THIS CASE AND OF THIS RECORD DO NOT APPROACH
SUCH A SITUATION."  - F. SUPP., AT - . 

THE APPELLANTS ARGUE THAT 28 U.S.C. SEC. 2283, WHICH BARS INJUNCTIONS
AGAINST ACTIONS ALREADY INSTITUTED IN STATE COURTS, IS NOT APPLICABLE
HERE BECAUSE THE PENDING PROSECUTIONS WERE REMOVED AND THE REMAND
ORDERS HAVE BEEN STAYED, AND BECAUSE IN THIS CLASS ACTION "THE BASIC
RELIEF SOUGHT IN THE COMPLAINT IS THE ENJOINING OF THE PROSPECTIVE
ENFORCEMENT OF THE STATE STATUTE  ...  ."  THE QUESTION OF
APPLICABILITY OF SEC. 2283 IS HERE ON APPEAL, AND IF THE COURT IS
UNCERTAIN ABOUT THAT STATUTE'S APPLICATION HERE IT HAS THE DUTY TO
DECIDE THE QUESTION NOW AND NOT REMAND TO THE LOWER COURT WHICH HAS
ALREADY DECIDED IT. 

THE COURT'S EXCEEDINGLY BRIEF ORDER DIRECTS THE DISTRICT COURT ON
REMAND, IF SEC. 2283 DOES NOT BAR THIS ACTION, TO "DETERMINE WHETHER
RELIEF IS PROPER IN LIGHT OF THE CRITERIA SET FORTH IN DOMBROWSKI" V.
PFISTER, 380 U.S. 479.  APPARENTLY THE COURT MEANS TO INDICATE THAT
THIS RECENT DECISION CREATED A NEW RULE AUTHORIZING FEDERAL COURTS TO
ENJOIN STATE OFFICERS FROM ENFORCING STATE LAWS EVEN THOUGH CLEARLY AND
NARROWLY DRAWN TO FORBID PICKETERS AND DEMONSTRATORS FROM OBSTRUCTING
STREET TRAFFIC AND BLOCKING THE ENTRANCES OF PUBLIC BUILDINGS.  THE
COURT BY CITING DOMBROWSKI SEEMS TO BE INDICATING THE EXISTENCE OF SUCH
A RULE, SINCE IT WOULD BE A FUTILE GESTURE TO REMAND THE CASE TO THE
DISTRICT COURT MERELY TO HAVE IT STATE FORMALLY WHAT IT SAID IN
DISMISSING UNDER THE JEANNETTE RULE BEFORE:  THAT "THERE IS NO BASIS OF
FACT IN THIS RECORD OR BY A REASONABLE CONSTRUCTION OF THE STATUTE BY
WHICH ITS CONSTITUTIONALITY COULD BE DOUBTED."  SINCE THE DISTRICT
COURT HAS EXPRESSED ITS VIEW THAT THE STATUTE IS CONSTITUTIONAL ON ITS
FACE AND HAS FOUND IN ADDITION THAT THERE HAS BEEN NO UNLAWFUL
HARASSING APPLICATION OF IT, THERE IS NO REASON FOR US TO REMAND THE
CASE TO THE DISTRICT COURT UNLESS THIS COURT WANTS EITHER TO UPSET THE
DISTRICT COURT'S FINDINGS OF FACT OR TO ORDER THE DISTRICT COURT TO
HOLD, AS THIS COURT HELD ABOUT A SUBVERSIVE ACTIVITIES STATUTE IN
DOMBROWSKI, THAT THE STATUTE CHALLENGED IS ALSO UNCONSTITUTIONAL ON ITS
FACE. 

I DID NOT PARTICIPATE IN DOMBROWSKI, BUT I DO NOT THINK IT IS
APPLICABLE HERE.  DOMBROWSKI DID APPROVE FEDERAL DISTRICT COURT
INJUNCTIONS TO PREVENT STATE OFFICERS FROM ENFORCING A STATE STATUTE
ALLEGED AND FOUND TO BE VOID ON ITS FACE AS A VIOLATION OF THE FIRST
AND FOURTEENTH AMENDMENTS ON THE GROUND THAT OVERBREADTH MADE IT
SUSCEPTIBLE OF SWEEPING AND IMPROPER APPLICATION ABRIDGING FREEDOM OF
EXPRESSION, WHERE IT WAS ALSO ALLEGED THAT THE STATUTE WAS PART OF A
PLAN "TO EMPLOY ARRESTS, SEIZURES, AND THREATS OF PROSECUTION" UNDER
THE STATUTE IN A WAY THAT WOULD DISCOURAGE THE COMPLAINANTS AND THEIR
SUPPORTERS FROM ASSERTING AND ATTEMPTING TO VINDICATE THEIR
CONSTITUTIONAL RIGHTS.  THIS COURT IN DOMBROWSKI HELD, AS I READ THE
OPINION, THAT AN INJUNCTION AGAINST ANY ENFORCEMENT OF ANY KIND OF THE
STATE STATUTE (AS DISTINGUISHED FROM AN ORDER ENJOINING STATE OFFICERS
FROM COMMITTING LAWLESS ACTS) COULD ISSUE THERE ONLY BECAUSE (1) THERE
WERE THREATS OF PROSECUTIONS PURELY TO HARASS, WITH NO HOPE OF ULTIMATE
SUCCESS, (2) THE LAW WAS CHALLENGED AS, AND FOUND TO BE ON ITS FACE, AN
"OVERLY BROAD AND VAGUE REGULATION OF EXPRESSION," AND (3) "NO READILY
APPARENT CONSTRUCTION SUGGESTS ITSELF AS A VEHICLE FOR REHABILITATING
THE STATUTE IN A SINGLE PROSECUTION  ...  ."  CRUCIAL TO THE HOLDING IN
DOMBROWSKI THAT ANY ENFORCEMENT WHATEVER OF THE STATUTE SHOULD BE
ENJOINED WAS THIS COURT'S FINDING THAT THE STATUTE INVOLVED WAS
UNCONSTITUTIONAL ON ITS FACE.  THIS IS CLEARLY SHOWN BY THE COURT'S
STATEMENT THAT: 

"ABSTENTION SERVES NO LEGITIMATE PURPOSE WHERE A STATUTE REGULATING
SPEECH IS PROPERLY ATTACKED ON ITS FACE, AND WHERE, AS HERE, THE
CONDUCT CHARGED IN THE INDICTMENTS IS NOT WITHIN THE REACH OF AN
ACCEPTABLE LIMITING CONSTRUCTION READILY TO BE ANTICIPATED AS THE
RESULT OF A SINGLE CRIMINAL PROSECUTION AND IS NOT THE SORT OF 'HARD
CORE' CONDUCT THAT WOULD OBVIOUSLY BE PROHIBITED UNDER ANY
CONSTRUCTION."  380 U.S., AT 491-492. 

DOMBROWSKI ALSO INDICATES TO ME THAT THERE MIGHT BE CASES IN WHICH
STATE OR FEDERAL OFFICERS, ACTING UNDER COLOR OF A LAW WHICH IS VALID,
COULD BE ENJOINED FROM ENGAGING IN UNLAWFUL CONDUCT WHICH DEPRIVES
PERSONS OF THEIR FEDERALLY GUARANTEED STATUTORY OR CONSTITUTIONAL
RIGHTS.  COMPARE 17 STAT. 13, 42 U.S.C. SEC. 1983 (1958 ED.).  STATING
THESE BASES FOR PERMITTING INJUNCTION AGAINST ALL ENFORCEMENT IN
DOMBROWSKI, MOST OF WHICH BASES ARE NOT PRESENT HERE, IS ENOUGH WITHOUT
MORE TO SHOW THAT DOMBROWSKI CANNOT CONTROL THE DECISION IN THIS CASE. 
HERE THERE IS NO ALLEGATION OF IMPROPER CONDUCT BY LAW ENFORCEMENT
OFFICERS, AND IN FACT, THERE IS A SPECIFIC FINDING TO THE CONTRARY. 
AND CERTAINLY THE ONE UNQUESTIONABLY INDISPENSABLE INGREDIENT OF
DOMBROWSKI REQUIRED FOR A BLANKET INJUNCTION ON ENFORCEMENT - A FINDING
THAT THE STATUTE IS UNCONSTITUTIONALLY VAGUE OR BROAD ON ITS FACE - IS
ABSENT HERE UNLESS THE COURT IS CONVINCED, WITHOUT EVEN HEARING
ARGUMENT, THAT THIS MISSISSIPPI STATUTE IS UNCONSTITUTIONAL ON ITS FACE
AS AN INFRINGEMENT ON CONSTITUTIONALLY PROTECTED EXPRESSION.    I THINK
THAT NO SUCH CLAIM OF UNCONSTITUTIONALITY ON ITS FACE CAN POSSIBLY BE
MAINTAINED.  WHAT THE MISSISSIPPI STATUTE FORBIDS IS SO CLEAR THAT ANY
PERSON OF ORDINARY INTELLIGENCE CAN OR SHOULD UNDERSTAND IT.  I FIND IT
HARD TO TAKE SERIOUSLY A VAGUENESS ARGUMENT, SINCE I DOUBT THAT THERE
IS A FOURTH GRADE SCHOOLBOY IN THIS COUNTRY WHO WOULD NOT UNDERSTAND
THAT THE STATUTE FORBIDS HIM, EITHER ALONE OR WITH OTHERS, TO BLOCK OR
OBSTRUCT INGRESS AND EGRESS TO AND FROM MISSISSIPPI PUBLIC BUILDINGS
(HERE A COURTHOUSE) AND TO OBSTRUCT FREE USE OF THE STREETS ADJACENT TO
THOSE PUBLIC PROPERTIES.  NOR IS THE STATUTE OVERLY BROAD IN WHAT IT
COVERS.  IT DOES NOT EVEN UNDERTAKE TO FORBID OR REGULATE PICKETING OR
DEMONSTRATING ON THE STREETS (AS I THINK IT COULD - SEE COX V.
LOUISIANA, 379 U.S. 559, 575 (CONCURRING OPINION); LABOR BOARD V. FRUIT
& VEGETABLE PACKERS, 377 U.S. 58, 76 (CONCURRING OPINION)).  IT SIMPLY
MODESTLY PROVIDES THAT THOSE WHO CARRY ON SUCH ACTIVITIES SHALL DO SO
IN A WAY THAT WILL NOT OBSTRUCT OTHERS WHO WANT TO USE THE STREETS TO
TRAVEL OR WANT TO GO IN OR OUT OF A PUBLIC BUILDING.  THE MISSISSIPPI
STATUTE IS NARROWLY AND PRECISELY DRAWN, PATENTLY DESIGNED TO
ACCOMPLISH THIS OBJECTIVE.  THUS IT FITS THIS COURT'S OFTEN-REPEATED
DESCRIPTION OF THE KIND OF LAW WHICH SHOULD BE DRAWN IN THE STATE'S
EXERCISE OF ITS GENERALLY UNQUESTIONED CONSTITUTIONAL POWER TO REGULATE
PICKETING AND STREET ACTIVITIES.  SEE, E.G., COX V. LOUISIANA, 379 U.S.
536, 554-555; THORNHILL V. ALABAMA, 310 U.S. 88, 105; SCHNEIDER V.
STATE, 308 U.S. 147, 160-161.  FAR FROM QUESTIONING THE POWER OF STATES
TO REGULATE CONDUCT ON THE STREETS AND IN PUBLIC BUILDINGS, THIS COURT
SAID IN SCHNEIDER V. STATE, SUPRA, AT 160: 

"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  ...  ." 

IT WOULD SEEM INCONSISTENT WITH OUR WHOLE FEDERAL SYSTEM TO SAY THAT
THE FEDERAL CONSTITUTION SOMEHOW TAKES AWAY FROM STATES AND THEIR
SUBDIVISIONS THE GENERAL POWER TO CONTROL THEIR STREETS AND INGRESS AND
EGRESS TO AND FROM THEIR PUBLIC BUILDINGS AND OTHER PUBLIC PROPERTIES. 
SUCH STATE CONTROL WOULD HAVE TO BE EXERCISED CONSISTENTLY WITH SPECIAL
FEDERAL CONSTITUTIONAL GUARANTEES, SUCH AS THE RIGHT NOT TO BE
DISCRIMINATED AGAINST ON ACCOUNT OF RACE, COLOR OR RELIGION; BUT THE
STATUTE HERE DOES NOT, ON ITS FACE, DRAW ANY SUCH INVIDIOUS
DISCRIMINATIONS AND THE STATUTE IS ATTACKED ON ITS FACE.  AND OF COURSE
MISSISSIPPI HAS NO LESS POWER OVER ITS PUBLIC BUILDINGS AND STREETS
THAN DOES ANY OTHER STATE. 

THE MISSISSIPPI STATUTE IS IN MANY RESPECTS LIKE ONE THAT THIS COURT
SUSTAINED A FEW MONTHS AGO AGAINST A CHALLENGE THAT IT WAS VOID FOR
VAGUENESS ON ITS FACE, AND THAT IT WAS AN UNJUSTIFIED RESTRICTION UPON
THE FREEDOMS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  THAT
STATUTE, MODELED AFTER AN ACT OF CONGRESS PASSED IN 1950, 64 STAT.
1018, 18 U.S.C. SEC. 1507 (1958 ED.), MADE IT AN OFFENSE IN LOUISIANA
TO PICKET OR PARADE IN OR NEAR A COURTHOUSE WITH AN INTENT OF
INTERFERING WITH OR OBSTRUCTING OR IMPEDING THE ADMINISTRATION OF
JUSTICE.  THE COURT'S OPINION STATED: 

"THE CONDUCT WHICH IS THE SUBJECT OF THIS STATUTE - PICKETING AND
PARADING - IS SUBJECT TO REGULATION EVEN THOUGH INTERTWINED WITH
EXPRESSION AND ASSOCIATION."  COX V. LOUISIANA, 379 U.S. 559, 563. 

AND IN A COMPANION CASE, DECIDED THE SAME DAY, THIS COURT STATED:
"GOVERNMENTAL AUTHORITIES HAVE THE DUTY AND RESPONSIBILITY TO KEEP
THEIR STREETS OPEN AND AVAILABLE FOR MOVEMENT."  COX V. LOUISIANA, 379
U.S. 536, 554-555.  "A GROUP OF DEMONSTRATORS," THIS COURT SAID, "COULD
NOT INSIST UPON THE RIGHT TO CORDON OFF A STREET, OR ENTRANCE TO A
PUBLIC OR PRIVATE BUILDING, AND ALLOW NO ONE TO PASS WHO DID NOT AGREE
TO LISTEN TO THEIR EXHORTATIONS."  ID., AT 555.  THE COURT ALSO
EMPHASIZED IN THAT SAME CASE THAT THE "CONTROL OF TRAVEL ON THE STREETS
IS A CLEAR EXAMPLE OF GOVERNMENTAL RESPONSIBILITY TO INSURE" "PUBLIC
ORDER, WITHOUT WHICH LIBERTY ITSELF WOULD BE LOST IN THE EXCESSES OF
ANARCHY."  ID., AT 554.  IT IS TRUE THAT WE HAVE ONLY RECENTLY HELD
THAT MISSISSIPPI MUST NOT DENY THE CONSTITUTIONAL RIGHT OF NEGROES TO
REGISTER AND VOTE.  UNITED STATES V. MISSISSIPPI, 380 U.S. 128.  BUT
THIS, OF COURSE, DOES NOT MEAN THAT NO GOOD OR VALID LAW COULD COME OUT
OF THE STATE OF MISSISSIPPI.  WE SHOULD WITHOUT HESITATION CONDEMN AS
UNCONSTITUTIONAL DISCRIMINATORY VOTING LAWS OF MISSISSIPPI OR OF ANY
OTHER STATE.  WE SHOULD WITH EQUAL FIRMNESS, HOWEVER, APPROVE A LAW
WHICH ON ITS FACE IS DESIGNED MERELY TO CARRY OUT THE STATE'S
RESPONSIBILITY TO PROTECT PEOPLE WHO WANT TO GET INTO AND OUT OF THE
STATE'S PUBLIC BUILDINGS AND TO MOVE ALONG ITS HIGHWAYS FREELY WITHOUT
OBSTRUCTION. 

I CANNOT BELIEVE FOR ONE MOMENT THAT THIS COURT IN DOMBROWSKI
INTENDED TO AUTHORIZE FEDERAL INJUNCTIONS COMPLETELY SUSPENDING ALL
ENFORCEMENT OF A CONSTITUTIONALLY VALID STATE CRIMINAL LAW MERELY
BECAUSE STATE DEFENDANTS ALLEGE THAT STATE OFFICIALS ARE ABOUT TO
HARASS THEM BY DOING NO MORE THAN ENFORCING THAT VALID LAW AGAINST THEM
IN THE STATE COURTS.  IF DOMBROWSKI HELD ANY SUCH THING, I THINK THE
QUICKER THAT CASE IS RECONSIDERED IN ORDER TO GIVE IT A "LIMITING
CONSTRUCTION" THE BETTER IT WILL BE FOR THE COURTS, THE STATES, THE
UNITED STATES AND THE PEOPLE IN THIS COUNTRY WHO WANT TO LIVE IN AN
ATMOSPHERE OF PEACE AND QUIET.  CREATING NEW HURDLES TO THE CONVICTION
OF PEOPLE WHO VIOLATE VALID LAWS CANNOT BE RANKED AS ONE OF THE MOST
PRESSING AND EXIGENT NEEDS OF THE TIMES, TO SAY THE LEAST.  PERHAPS AT
NO TIME IN THE NATION'S HISTORY HAS THERE BEEN A GREATER NEED TO MAKE
CLEAR TO ALL THAT THE UNITED STATES CONSTITUTION DOES NOT RENDER STATES
IMPOTENT TO REQUIRE PEOPLE PERMITTED TO ADVOCATE VIEWS AND AIR
GRIEVANCES ON THE STREETS TO DO SO WITHOUT OBSTRUCTING THE USE OF THOSE
STREETS BY THOSE WHO WANT TO USE THEM TO MOVE FROM PLACE TO PLACE - THE
PRIMARY USE FOR WHICH ALL THE PEOPLE PAY TAXES TO BUILD AND MAINTAIN
STREETS. 

THE RECORD IN THIS CASE TELLS US THAT THERE ARE PROBABLY HUNDREDS OF
CASES LIKE THESE IN ONE STATE ALONE.  IT IS NOT DIFFICULT TO FORESEE
THAT REVERSAL OF THE DISTRICT COURT'S DENIAL OF INJUNCTION HERE WILL BE
A SIGNAL AND INVITATION FOR MANY, MANY MORE EFFORTS TO TIE THE HANDS OF
STATE OFFICIALS IN MANY MORE STATES ON CHARGES THAT THREATENED
PROSECUTIONS UNDER VALID LAWS ARE PROMPTED BY A DESIRE TO HARASS.  MUCH
HAS BEEN SAID OF LATE ABOUT THE THREAT TO PROMPT AND EFFICIENT
ADMINISTRATION OF JUSTICE FROM THE INCREASING WORKLOAD OF OUR UNITED
STATES COURTS.  (FN9)  IF THAT IS A VALID ARGUMENT IN DECIDING CASES,
IT IS NOT AMISS TO POINT OUT THAT THE RULE WHICH THE COURT IMPLICITLY
ADOPTS HERE IS BOUND TO BRING AN EVER-INCREASING NUMBER OF CASES INTO
FEDERAL COURTS, WHERE STATE PROSECUTIONS WILL BE ENJOINED UNTIL A
FEDERAL COURT CAN FIRST WEIGH THE MOTIVES OF STATE OFFICIALS IN
INSTITUTING PROSECUTIONS.  THIS OF COURSE MEANS MORE AND MORE DELAYS
BETWEEN THE ARRESTS OF PEOPLE ACCUSED OF VIOLATING STATE LAWS AND THEIR
TRIALS.  THE LAW'S DELAYS - WHICH MANY BELIEVE ARE REALLY A GUILTY
MAN'S MOST EFFECTIVE DEFENSE - ARE BOUND TO BE MULTIPLIED BEYOND
MEASURE.  MOREOVER, IT SHOULD NOT BE FORGOTTEN THAT THIS IS A BIG
COUNTRY - TOO BIG TO EXPECT THE FEDERAL GOVERNMENT TO TAKE OVER THE
CREATION AND ENFORCEMENT OF LOCAL CRIMINAL LAWS THROUGHOUT THE
COUNTRY.  THE NATION WAS NOT FORMED WITH ANY SUCH PURPOSE IN MIND.  IT
IS WISE AND RIGHT AND IN CONFORMITY WITH THE NATIONAL GOVERNMENTAL PLAN
FOR FEDERAL COURTS TO BE VIGILANT AND ALERT TO PROTECT FEDERALLY
GUARANTEED RIGHTS.  BUT WE PUT TOO MUCH STRAIN ON THE FEDERAL COURTS IF
WE BODILY TRANSFER FROM STATE- TO FEDERAL-COURT JURISDICTION WHAT IS,
IN EFFECT, THE INITIAL STEP IN THE TRIAL OF PERSONS CHARGED WITH
VIOLATING STATE OR LOCAL CRIMINAL LAWS WHICH ARE FAR FROM BEING
UNCONSTITUTIONAL ON THEIR FACE.  THE FEDERAL CONSTITUTION CERTAINLY
DOES NOT REQUIRE US TO DO IT AND, IN MY JUDGMENT, FORBIDS IT.  I WOULD
AFFIRM THE DISTRICT COURT'S JUDGMENT. 

FN1  SEE BELL V. MARYLAND, 378 U.S. 226, 242 (OPINION OF DOUGLAS, J.);
ID., AT 318 (BLACK, J., DISSENTING); HAMM V. CITY OF ROCK HILL, 379
U.S. 306, 318 (BLACK, J., DISSENTING). 

FN2  WE ARE INFORMED THAT AFTER THE DECISION OF THE DISTRICT COURT IN
THE PRESENT CASE, 170 OF THE STATE-COURT DEFENDANTS REMOVED THEIR
PROSECUTIONS TO A FEDERAL DISTRICT COURT, PURPORTEDLY UNDER AUTHORITY
OF 28 U.S.C. SEC. 1443 (1958 ED.).  THE FEDERAL DISTRICT COURT ORDERED
THE CASES REMANDED TO THE STATE COURTS.  THE COURT OF APPEALS STAYED
THE REMAND ORDERS, AND AN APPEAL FROM THOSE ORDERS IS NOW PENDING
BEFORE THE FIFTH CIRCUIT.  HARTFIELD V. MISSISSIPPI, NO. 21811;
ANDERSON V. MISSISSIPPI, NO. 21813; CARMICHAEL V. CITY OF GREENWOOD,
NO. 22289.  IT CAN BE ASSUMED THAT IF APPELLANTS ARE UNSUCCESSFUL IN
THE FIFTH CIRCUIT THEY WILL SEEK REVIEW IN THIS COURT, WHICH WILL TAKE
AT LEAST ANOTHER YEAR.  TODAY'S DECISION APPEARS TO ADD MORE DEVICES TO
THE COLLECTION OF DELAYING TACTICS BY WHICH STATE CRIMINAL DEFENDANTS
MAY USE COLLATERAL LITIGATION IN THE FEDERAL COURTS TO PREVENT THEIR
PROSECUTIONS IN STATE COURTS FROM COMING TO TRIAL FOR MANY YEARS, IF
EVER. 

FN3  HOUSE BILL NO. 546, GEN. LAWS OF MISS.  1964, C. 343. 

FN4  THE COMPLAINT ALLEGED THAT THE STATUTE VIOLATED THE FIRST,
FIFTH, THIRTEENTH, FOURTEENTH AND FIFTEENTH AMENDMENTS. 

FN5  "THE COURT, THEREFORE, FURTHER FINDS AS A FACT THAT THE STATE OF
MISSISSIPPI IS PROSECUTING THE PLAINTIFFS IN THE STATE COURT UNDER SAID
PICKETING STATUTE IN GOOD FAITH, AND IS FULLY ENTITLED UNDER THE LAW TO
DO SO TO CONCLUSION OF SUCH PROSECUTION  ...  ."  - F. SUPP., AT - . 

FN6  WE UNDERSTAND FROM THE DISTRICT COURT'S OPINION AND CONCLUSIONS
OF LAW THAT IT DID NOT DISMISS THE COMPLAINT ON THE GROUND THAT IT
THOUGHT IT NECESSARY TO HAVE THE STATE COURTS CONSTRUE THE STATUTE, BUT
RATHER ON THE GROUND THAT HAVING FOUND THE STATUTE CONSTITUTIONAL IT
DISMISSED IN ORDER FOR THE CRIMINAL CASES TO BE TRIED IN THE STATE
COURTS.  MOREOVER, WHATEVER THE REASONS ASSIGNED FOR DISMISSAL BY THE
DISTRICT COURT, IT IS WELL ESTABLISHED THAT AN APPELLEE IN WHOSE FAVOR
A JUDGMENT HAS BEEN RENDERED IS ENTITLED TO AN AFFIRMANCE ON ANY PROPER
GROUND. 

FN7 IN AN OPINION JOINED BY MR. JUSTICE CLARK DENYING A PETITION FOR
HABEAS CORPUS IN SIMILAR CIRCUMSTANCES, I STATED: 

"THIS PETITION FOR HABEAS CORPUS IS DENIED BECAUSE THE FACTUAL
ALLEGATIONS FALL FAR SHORT OF SHOWING THAT THERE ARE NOT MISSISSIPPI
STATE PROCESSES AVAILABLE BY APPEAL OR OTHERWISE FOR PETITIONER TO
CHALLENGE HER STATE CONVICTION, WHICH PROCESSES WOULD EFFECTIVELY
PROTECT HER CONSTITUTIONAL RIGHTS, PARTICULARLY SINCE ANY DENIAL OF
SUCH RIGHTS BY THE HIGHEST COURT OF A STATE CAN BE REMEDIED BY
APPROPRIATE APPELLATE PROCEEDINGS IN THE SUPREME COURT OF THE UNITED
STATES.  SEE 28 U.S. CODE, SECTIONS 2241, 2254 AND 1257."  APPLICATION
OF WYCKOFF, 6 RACE REL. L. REP. 786, 794, DISCUSSED IN BROWN V.
RAYFIELD, 320 F.2D 96, 98-99 (C.A. 5TH CIR.). 

FN8  "A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO
STAY PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT
OF CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO
PROTECT OR EFFECTUATE ITS JUDGMENTS."  28 U.S.C.  SEC. 2283 (1958
ED.). 

FN9  SEE CASE V. NEBRASKA, ANTE, PP. 337, 340 (CONCURRING OPINIONS);
LINKLETTER V. WALKER, ANTE, P. 618. 

MR. JUSTICE WHITE, DISSENTING. 

I DISSENT FROM THE PER CURIAM REMAND OF THIS CASE ON THE AUTHORITY OF
DOMBROWSKI V. PFISTER, 380 U.S. 479, FOR WHILE I JOINED THE OPINION OF
THE COURT IN DOMBROWSKI, I DO NOT THINK IT IS APPLICABLE HERE. 

THE APPELLANTS IN DOMBROWSKI ATTACKED NUMEROUS AND SUNDRY PROVISIONS
OF LOUISIANA'S SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW AND THE
COMMUNIST PROPAGANDA CONTROL LAW ON THE GROUND THAT THE STATUTES
"VIOLATE THE FIRST AND FOURTEENTH AMENDMENT GUARANTEES SECURING FREEDOM
OF EXPRESSION, BECAUSE OVERBREADTH MAKES THEM SUSCEPTIBLE OF SWEEPING
AND IMPROPER APPLICATION ABRIDGING THOSE RIGHTS."  380 U.S. 479, 482. 
THERE WAS ALSO AN ALLEGATION OF THREATS TO ENFORCE THESE SWEEPING
PROVISIONS AS PART OF A "PLAN TO EMPLOY ARRESTS, SEIZURES, AND THREATS
OF PROSECUTION UNDER COLOR OF THE STATUTES TO HARASS" THE APPELLANTS
AND TO DISCOURAGE THEIR PROTECTED ACTIVITIES.  THE LOWER COURT DENIED
RELIEF ON THE GROUND THAT THESE ALLEGATIONS DID NOT PRESENT A CASE OF
THREATENED IRREPARABLE INJURY TO CONSTITUTIONAL RIGHTS WARRANTING THE
INTERVENTION OF A FEDERAL COURT.  WE REVERSED.  THE COURT, AT THE
OUTSET, FULLY AND EXPLICITLY ACCEPTED THE TEACHING OF THE CASES "THAT
FEDERAL INTERFERENCE WITH A STATE'S GOOD-FAITH ADMINISTRATION OF ITS
CRIMINAL LAWS IS PECULIARLY INCONSISTENT WITH OUR FEDERAL FRAMEWORK"
AND THAT "THE MERE POSSIBILITY OF ERRONEOUS INITIAL APPLICATION OF
CONSTITUTIONAL STANDARDS WILL USUALLY NOT AMOUNT TO THE IRREPARABLE
INJURY NECESSARY TO JUSTIFY A DISRUPTION OF ORDERLY STATE
PROCEEDINGS."  380 U.S., AT 484-485.  WITHOUT QUESTIONING THE RULE THAT
THE POSSIBLE INVALIDITY OF A STATE STATUTE IS NOT ITSELF GROUND FOR
EQUITABLE RELIEF, TERRACE V. THOMPSON, 263 U.S. 197, 214, OR THE
IMMINENCE OF PROSECUTION UNDER SUCH A STATUTE, SINCE NO PERSON IS
IMMUNE FROM PROSECUTION IN GOOD FAITH FOR ALLEGED CRIMINAL ACTS,
DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157, 163-164, WE HELD THAT THERE
WAS A SUFFICIENT SHOWING OF THREATENED IRREPARABLE INJURY TO FEDERAL
RIGHTS, WHICH COULD NOT BE DISSIPATED BY A PARTICULAR PROSECUTION, TO
WARRANT EQUITABLE INTERVENTION BY A FEDERAL COURT.  WHAT WAS
CONTROLLING ON BOTH THE EXERCISE OF EQUITABLE POWER AND THE ABSTENTION
ISSUE WAS THE DEPICTION OF A "SITUATION IN WHICH DEFENSE OF THE STATE'S
CRIMINAL PROSECUTION WILL NOT ASSURE ADEQUATE VINDICATION OF
CONSTITUTIONAL RIGHTS."  380 U.S., AT 485.  THE SITUATION DEPICTED HERE
DOES NOT CONTAIN THE ELEMENTS WHICH WERE OPERATIVE IN DOMBROWSKI. 

DOMBROWSKI DID NOT HOLD THAT THE TRADITIONAL EQUITABLE LIMITATIONS ON
A FEDERAL COURT'S POWER TO ENJOIN IMMINENT OR PENDING CRIMINAL
PROCEEDINGS ARE RELAXED WHENEVER A STATUTE IS ATTACKED AS VOID ON ITS
FACE OR AS APPLIED IN VIOALTION OF THE FIRST AND FOURTEENTH
AMENDMENTS.  RATHER THAT CASE MAKES CLEAR THAT TWO PARTICULAR KINDS OF
CHALLANGES TO STATE CRIMINAL STATUTES WARRANT EXTRAORDINARY
INTERVENTION IN A STATE'S CRIMINAL PROCESSES.  THEY ARE PLANNED
PROSECUTORIAL MISUSE OF A STATUTE REGULATING FREEDOM OF EXPRESSION AND
A VAGUENESS ATTACK ON SUCH A STATUTE.  WHERE THREATS OF ENFORCEMENT ARE
WITHOUT ANY EXPECTATION OF CONVICTION AND ARE "PART OF A PLAN TO EMPLOY
ARRESTS, SEIZURES, AND THREATS OF PROSECUTION UNDER COLOR OF THE
STATUTES TO HARASS," IT IS OBVIOUS THAT DEFENSE IN A STATE CRIMINAL
PROSECUTION WILL NOT SUFFICE TO AVOID IRREPARABLE INJURY.  THE VERY
PROSECUTION IS SAID TO BE A PART OF THE UNCONSTITUTIONAL SCHEME AND THE
SCHEME, INCLUDING FUTURE USE OF THE STATUTES, IS QUITE IRRELEVANT TO
THE PROSECUTION IN THE STATE COURTS.  SIMILARLY WHERE A PLETHORA OF
STATUTORY PROVISIONS ARE ASSAILED AS INVALIDLY VAGUE, UNCERTAIN OR
OVERBROAD, WITH A CONSEQUENT REACH INTO AREAS OF EXPRESSION PROTECTED
BY THE FIRST AMENDMENT, AND SUCH PROVISIONS ARE NOT SUSCEPTIBLE OF
CLARIFYING CONSTRUCTION UNDER THE IMPACT OF ONE CASE, DEFENSE IN THE
STATE PROSECUTION CANNOT REMOVE THE UNCONSTITUTIONAL VICE OF
VAGUENESS.  FOR "THOSE AFFECTED BY A STATUTE ARE ENTITLED TO BE FREE OF
THE BURDENS OF DEFENDING PROSECUTIONS, HOWEVER EXPEDITIOUS, AIMED AT
HAMMERING OUT THE STRUCTURE OF THE STATUTE PIECEMEAL, WITH NO
LIKELIHOOD OF OBVIATING SIMILAR UNCERTAINTY FOR OTHERS."  DOMBROWSKI V.
PFISTER, 380 U.S., AT 491.  TO RELEGATE THE PARTY TO DEFENSE IN A STATE
PROCEEDING WOULD BE LIKELY TO LEAVE STANDING A STATUTE SUSCEPTIBLE OF
HAVING A SEVERE IN TERROREM EFFECT ON EXPRESSION, EVEN IF ONE
PROSECUTED UNDER SUCH A STATUTE IS NOT CONVICTED.  IT IS THIS REASONING
THAT ACCOUNTS FOR RELAXATION OF THE ABSTENTION DOCTRINE WHERE SWEEPING
AND UNCLEAR STATUTES ARE ATTACKED ON THEIR FACE, AS IN BAGGETT V.
BULLITT, 377 U.S. 360, A CASE QUITE PERTINENT TO THE RATIONALE OF
DOMBROWSKI. 

HERE THERE IS NO MORE HARASSMENT ALLEGED THAN THAT ORDINARILY AND
NECESSARILY ENTAILED BY A CRIMINAL PROSECUTION BASED ON A GOOD FAITH
BELIEF THAT THE DEFENDANTS HAVE VIOLATED A STATUTE.  ALTHOUGH IT IS
SAID THAT THE STATUTE IS AIMED AT DEMONSTRATIONS, AND THAT THE
PROSECUTIONS INTERFERE WITH THEM, THESE ALLEGATIONS DO NOT CHARGE A
MISUSE OF THE STATUTE.  INDEED, THE PETITIONERS ALLEGE THAT THE
PICKETING SAID TO BE UNLAWFUL UNDER IT WAS PEACEFUL AND NONOBSTRUCTIVE,
AND THE STATE CLAIMS QUITE THE CONTRARY.  THIS ISSUE IS AT THE CORE OF
THE CRIMINAL TRIAL AND TO DECIDE IT IN A FEDERAL COURT REPRESENTS A
WHOLLY DUPLICATIVE ADJUDICATION OF AN ORDINARY FACTUAL MATTER IN
DISPUTE IN A STATE CRIMINAL TRIAL. 

NOR DO I THINK THAT ANY SUBSTANTIAL CLAIM OF VAGUENESS OR
OVERBROADNESS CAN BE MADE ABOUT THE STATUTE HERE AT ISSUE.  (FN1)  ITS
PROVISIONS ARE THESE: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, SINGLY OR IN CONCERT WITH
OTHERS, TO ENGAGE IN PICKETING OR MASS DEMONSTRATIONS IN SUCH A MANNER
AS TO OBSTRUCT OR INTERFERE WITH FREE INGRESS OR EGRESS TO AND FROM ANY
PUBLIC PREMISES, STATE PROPERTY, COUNTY OR MUNICIPAL COURTHOUSES, CITY
HALLS, OFFICE BUILDINGS, JAILS, OR OTHER PUBLIC BUILDINGS OR PROPERTY
OWNED BY THE STATE OF MISSISSIPPI OR ANY COUNTY OR MUNICIPAL GOVERNMENT
LOCATED THEREIN OR WITH THE TRANSACTION OF PUBLIC BUSINESS OR
ADMINISTRATION OF JUSTICE THEREIN OR THEREON CONDUCTED OR SO AS TO
OBSTRUCT OR INTERFERE WITH FREE USE OF PUBLIC STREETS, SIDEWALKS OR
OTHER PUBLIC WAYS ADJACENT OR CONTIGUOUS THERETO." 

TO ME THE TERMS "OBSTRUCT" AND "INTERFERE" RAISE NO ISSUES OF
VAGUENESS OR OVERBREADTH SUCH AS WERE CONSIDERED TO BE PRESENT IN
BAGGETT V. BULLITT, 377 U.S. 360, AND DOMBROWSKI, 380 U.S. 479, FOR THE
TERMS ARE NEITHER UNCLEAR NOR OPEN-ENDED.  THE STATUTE DOES NOT DEAL
WITH BELIEF OR EXPRESSION AS SUCH - IT DOES NOT BAN ALL FORMS OF
PICKETING, THORNHILL V. ALABAMA, 310 U.S. 88; COX V. LOUISIANA, 379
U.S. 559 - BUT RATHER WITH OBSTRUCTIONS TO AND INTERFERENCES WITH
INGRESS OR EGRESS TO AND FROM PUBLIC BUILDINGS AND THE SIDEWALKS AND
STREETS CONTIGUOUS THERETO, ASSUREDLY PERMISSIBLE SUBJECTS OF STATE
REGULATION.  COX V. LOUISIANA, 379 U.S. 536, 554.  THE STATUTE DOES
"AIM SPECIFICALLY AT EVILS WITHIN THE ALLOWABLE AREA OF STATE CONTROL,"
THORNHILL V. ALABAMA, 310 U.S. 88, 97, AND DOES NOT LEAVE ONE TO GUESS
AT WHERE FANCIFUL POSSIBILITY ENDS AND INTENDED COVERAGE BEGINS.  CF.
BAGGETT V. BULLITT, 377 U.S. 360, 373-375. 

THE CONSTITUTIONAL CHALLENGE TO THIS STATUTE WHICH THUS EMERGES IS,
IN MY VIEW, AN ASSERTION THAT THE TYPE OF CONDUCT COVERED BY THE CLEAR
TERMS OF THE STATUTE, OBSTRUCTIVE PICKETING AT PUBLIC BUILDINGS, FOR
EXAMPLE, CANNOT CONSTITUTIONALLY BE PROSCRIBED.  WHETHER THE ATTACK IS
MADE ON THE FACE OF THE STATUTE OR AS APPLIED IS BESIDE THE POINT, FOR
IN NEITHER CASE WOULD THERE BE THOSE SPECIAL CIRCUMSTANCES WHICH
DOMBROWSKI REQUIRES TO SANCTION FEDERAL INTERVENTION INTO A STATE'S
CRIMINAL PROCESSES.  WHATEVER "CRITERIA" DOMBROWSKI CONTAINS, THEY DO
NOT INDICATE THAT IN THIS SITUATION THE ORDINARY RULE BARRING
INJUNCTIVE RELIEF AGAINST STATE CRIMINAL PROSECUTIONS SHOULD BE
WAIVED. 

"THE MERE POSSIBILITY OF ERRONEOUS INITIAL APPLICATION OF
CONSTITUTIONAL STANDARDS WILL USUALLY NOT AMOUNT TO THE IRREPARABLE
INJURY NECESSARY TO JUSTIFY A DISRUPTION OF ORDERLY STATE PROCEEDINGS,"
AND WHAT IS REQUIRED FOR EXTRAORDINARY INTERVENTION IS A "SITUATION IN
WHICH DEFENSE OF THE STATE'S CRIMINAL PROSECUTION WILL NOT ASSURE
ADEQUATE VINDICATION OF CONSTITUTIONAL RIGHTS."  DOMBROWSKI V. PFISTER,
380 U.S. 479, 484-485.  IN DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157,
THE COURT DENIED INJUNCTIVE RELIEF AGAINST THREATENED APPLICATION OF A
CITY ORDINANCE TO CONSTITUTIONALLY PROTECTED RELIGIOUS SOLICITATION,
"SINCE THE LAWFULNESS OR CONSTITUTIONALITY OF THE STATUTE OR ORDINANCE
ON WHICH THE PROSECUTION IS BASED MAY BE DETERMINED AS READILY IN THE
CRIMINAL CASE AS IN A SUIT FOR AN INJUNCTION."  319 U.S., AT 163.  THE
CONSTITUTIONAL CHALLENGES TO THIS MISSISSIPPI STATUTE, UNLIKE THE
ATTACK ON THE STATUTES IN DOMBROWSKI V. PFISTER AND BAGGETT V. BULLITT,
BUT INDISTINGUISHABLE FROM THAT IN DOUGLAS V. CITY OF JEANNETTE, DOES
NOT ENTAIL "EXTENSIVE ADJUDICATIONS, UNDER THE IMPACT OF A VARIETY OF
FACTUAL SITUATIONS," BAGGETT V. BULLITT, 377 U.S. 360, 378, TO BRING IT
WITHIN CONSTITUTIONAL BOUNDS.  THIS IS NOT A CASE WHERE "NO READILY
APPARENT CONSTRUCTION SUGGESTS ITSELF AS A VEHICLE FOR REHABILITATING
THE STATUTES IN A SINGLE PROSECUTION."  DOMBROWSKI V. PFISTER, 380
U.S., AT 491. 

IN THESE CIRCUMSTANCES IT IS DIFFICULT TO SEE WHAT HAZARDS TO FEDERAL
RIGHTS ARE POSED BY REQUIRING ONE TO FOLLOW ORDERLY PROCEEDINGS IN THE
STATE COURTS.  NUMEROUS CASES ESTABLISH THAT THE POSSIBLE INVALIDITY OF
A STATUTE, OR THE IMMINENCE OF A PROSECUTION UNDER IT, ITSELF WILL NOT
SUFFICE TO WARRANT INTERVENTION.  TERRACE V. THOMPSON, 263 U.S. 197,
214; FENNER V. BOYKIN, 271 U.S. 240; SPIELMAN MOTOR SALES CO. V. DODGE,
295 U.S. 89; BEAL V. MISSOURI PAC. R. CO., 312 U.S. 45; DOUGLAS V. CITY
OF JEANNETTE, 319 U.S. 157.  DOMBROWSKI V. PFISTER IS NOT TO THE
CONTRARY. 

IT IS OBVIOUS, HOWEVER, THAT SEVERAL OF MY BRETHREN FIND MORE
GUIDANCE IN DOMBROWSKI THAN I DO AND MORE THAN I THINK A DISTRICT JUDGE
CAN FIND IN EITHER THAT CASE OR THIS UNREVEALING PER CURIAM REMAND,
WHICH IGNORES THE DIFFERENCES BETWEEN THIS CASE AND DOMBROWSKI.  THE
ISSUES ARE IMPORTANT AND OF IMMEDIATE CONCERN AND I WOULD NOTE PROBABLE
JURISDICTION AND SET THIS CASE DOWN FOR ARGUMENT.   (FN2) 

FN1  HOUSE BILL NO. 546, GEN. LAWS OF MISS.  1964, C. 343. 

FN2  AS THE COURT RECOGNIZES, THE QUESTION WHETHER SEC. 2283 BARS AN
INJUNCTION IN SUITS BROUGHT UNDER 42 U.S.C. SEC. 1983 (1958 ED.)  IS AN
OPEN ONE; I THINK THAT THE PRESENCE OF THAT ISSUE IS A FURTHER REASON
WHY A PER CURIAM REMAND IS INAPPROPRIATE. 
..END :



















CALIFORNIA V. HURST 381 U.S. 760 


NO. 45.  DECIDED JUNE 7, 1965.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW: 325 F.2D 891. 


CALIFORNIA V. HURST. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE MOTION OF RESPONDENT FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS
GRANTED.  THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE
JUDGMENT IS REVERSED.  LINKLETTER V. WALKER, ANTE, P. 618. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINION IN LINKLETTER V. WALKER, ANTE, AT
640. 
..END :











REDMOND V. VIRGINIA 381 U.S. 760 


NO. 1082.  DECIDED JUNE 7, 1965.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


REDMOND V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ASSOCIATED FOOD RETAILERS OF GREATER CHICAGO V. JEWEL TEA 381 U.S. 761 


NO. 321.  DECIDED JUNE 7, 1965.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW: 331 F.2D 547. 


ASSOCIATED FOOD RETAILERS OF GREATER CHICAGO, INC., ET AL. V. JEWEL TEA
CO., INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT BELOW
IS REVERSED.  MEAT CUTTERS V. JEWEL TEA, ANTE, P. 676. 

MR. JUSTICE HARLAN, MR. JUSTICE STEWART AND MR. JUSTICE GOLDBERG
CONCUR IN THE JUDGMENT OF THE COURT FOR THE REASONS STATED IN MR.
JUSTICE GOLDBERG'S OPINION IN UNITED MINE WORKERS OF AMERICA V.
PENNINGTON AND MEAT CUTTERS V. JEWEL TEA, ANTE, AT 697. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK
DISSENT. 
..END :







FEDERAL POWER COMMISSION V. PAN AMERICAN PETROLEUM CORP. 381 U.S. 762 


NO. 1024.  DECIDED JUNE 7, 1965.* - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW:  339 F.2D 694. 

*TOGETHER WITH NO. 1025, PENNSYLVANIA PUBLIC UTILITY COMMISSION V.
PAN AMERICAN PETROLEUM CORP., ALSO ON PETITION FOR WRIT OF CERTIORARI
TO THE SAME COURT. 


FEDERAL POWER COMMISSION V. PAN AMERICAN PETROLEUM CORP. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED AND THE JUDGMENT IS
REVERSED.  UNITED GAS IMPROVEMENT CO. V. CONTINENTAL OIL CO., AND
FEDERAL POWER COMM'N V. MARR, ANTE, P. 392. 
..END :











KNOWLES V. FLORIDA 381 U.S. 763 


NO. 884, MISC.  DECIDED JUNE 7, 1965.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED. 


KNOWLES V. FLORIDA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT
DISMISSING THE APPEAL IS REVERSED.   RALEY V. OHIO, 360 U.S. 423, 437
440.  CF. LANE V. BROWN, 372 U.S. 477; DOUGLAS V. CALIFORNIA, 372 U.S.
353. 

MR. JUSTICE STEWART WOULD DENY CERTIORARI. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT. 
..END :











ATLANTIC REFINING CO. V. FEDERAL TRADE COMMISSION 381 U.S. 357 


NO. 292.  ARGUED MARCH 30, 1965.  - DECIDED JUNE 1, 1965.* - 331 F.2D
394, JUDGMENTS AFFIRMED. 

*TOGETHER WITH NO. 296, GOODYEAR TIRE & RUBBER CO. V. FEDERAL TRADE
COMMISSION, ALSO ON CERTIORARI TO THE SAME COURT. 


THE ATLANTIC REFINING CO., A MAJOR PRODUCER AND DISTRIBUTOR OF
GASOLINE AND OIL PRODUCTS ON THE EASTERN SEABOARD, AGREED WITH THE
GOODYEAR TIRE & RUBBER CO., THE COUNTRY'S LARGEST MANUFACTURER OF
RUBBER PRODUCTS, TO SPONSOR THE SALE OF THE LATTER'S TIRES, BATTERIES
AND ACCESSORIES (TBA) TO ITS MANY RETAIL SERVICE STATION DEALERS AND
WHOLESALE OUTLETS.  ATLANTIC WAS PRIMARILY RESPONSIBLE FOR PROMOTING
THE SALE OF GOODYEAR PRODUCTS TO ITS DEALERS AND ASSISTING IN THEIR
RESALE, FOR WHICH IT RECEIVED A COMMISSION ON ALL SALES MADE TO THE
WHOLESALERS AND DEALERS.  THE FEDERAL TRADE COMMISSION (FTC) ENJOINED
THE USE OF DIRECT METHODS OF COERCION BY ATLANTIC ON ITS DEALERS IN THE
INAUGURATION AND PROMOTION OF THE PLAN, AND ATLANTIC DOES NOT SEEK
REVIEW OF THIS ASPECT OF THE CASE.  THE FTC ALSO FOUND THE SALES
COMMISSION PLAN ILLEGAL AS A CLASSIC EXAMPLE OF THE USE OF ECONOMIC
POWER IN ONE MARKET TO DESTROY COMPETITION IN ANOTHER, AND PROHIBITED
BOTH ATLANTIC AND GOODYEAR FROM PARTICIPATING IN SUCH ARRANGEMENTS. 
THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  WHERE CONGRESS HAS EMPOWERED THE FTC TO DETERMINE WHETHER THE
METHODS, ACTS OR PRACTICES OF COMPETITION ARE UNFAIR, THE FUNCTION OF
THE COURTS IS TO DETERMINE WHETHER THE FTC'S DECISION IS WARRANTED BY
THE RECORD AND HAS A REASONABLE BASIS IN LAW.  PP. 367-368. 

2.  THE RECORD CONTAINS SUBSTANTIAL EVIDENCE TO SUPPORT THE FTC'S
FINDINGS.  PP. 368-369. 

(A)  ATLANTIC AND ITS DEALERS DID NOT BARGAIN AS EQUALS, IN THE LIGHT
OF ATLANTIC'S LEVERAGE OF SHORT-TERM LEASES, EQUIPMENT LOANS TO
DEALERS, CONTROL OF GASOLINE AND OIL SUPPLIES, AND CONTROL OF DEALER
ADVERTISING.  P. 368. 

(B)  ATLANTIC NOT ONLY EXERCISED THE PERSUASION THAT RESULTED FROM
ITS ECONOMIC POWER, BUT COUPLED IT WITH THREATS OF REPRISAL WHICH THE
FTC ENJOINED.  P. 368. 

(C) THE EFFECTIVENESS OF ATLANTIC'S SPONSORSHIP OF GOODYEAR'S
PRODUCTS IS MEASURED BY THE INCREASE IN SALES SOON AFTER THE PLAN WAS
PUT IN OPERATION.  PP. 368-369. 

3.  A VIOLATION OF SEC 5 OF THE FEDERAL TRADE COMMISSION ACT CONSISTS
OF CONDUCT CONTRARY TO THE PUBLIC POLICY DECLARED IN THE ACT, AND THE
FTC MAY USE AS A GUIDELINE RECOGNIZED VIOLATIONS OF THE ANTITRUST
LAWS.  PP. 369-371. 

(A)  THE FTC FOUND THAT THE SALES-COMMISSION PLAN IMPAIRED
COMPETITION AT ALL THREE LEVELS OF THE TBA INDUSTRY:  MANUFACTURING,
WHOLESALING AND RETAILING.  P. 370. 

(B) THE FTC WAS WARRANTED IN FINDING THAT THE PLAN, WHICH HAD A
SUBSTANTIAL EFFECT ON COMMERCE, HAD THE SAME EFFECT AS THOUGH ATLANTIC
HAD AGREED TO, AND DID, REQUIRE ITS DEALERS TO BUY GOODYEAR PRODUCTS. 
P. 370. 

(C)  SINCE THE EFFECT OF THE PLAN IS SIMILAR TO THAT OF A TIE-IN, IT
IS NOT NECESSARY TO EMBARK ON A FULL-SCALE ECONOMIC ANALYSIS OF
COMPETITIVE EFFECT.  P. 371. 

(D)  IN VIEW OF THE DESTRUCTIVE EFFECT ON COMMERCE OF THE WIDESPREAD
USE OF THE SALES-COMMISSION PLAN, THE FTC WAS JUSTIFIED IN REFUSING TO
CONSIDER EVIDENCE OF BUSINESS JUSTIFICATION FOR THE PROGRAM.  P. 371. 

4.  THE FTC'S ORDER PROHIBITING EACH PETITIONER FROM ENTERING INTO OR
PERFORMING ANY SIMILAR AGREEMENT IS NOT UNREASONABLE.  PP. 372-377. 

(A)  IT IS WITHIN THE FTC'S AUTHORITY TO DETERMINE THAT THE LONG
EXISTENCE OF THE PLAN, COUPLED WITH ATLANTIC'S COERCION OF ITS DEALERS,
WARRANTED A COMPLETE PROHIBITION OF THE PRACTICE BY ATLANTIC.  PP. 372
373. 

(B)  GOODYEAR WAS AN ACTIVE PARTICIPANT IN CARRYING OUT THE SALES
COMMISSION PLAN AND THE PROHIBITION DIRECTED AGAINST IT IS WITHIN THE
FTC'S POWER.  PP. 373-375. 

(C)  THERE WAS AMPLE EVIDENCE, INCLUDING 9 SALES-COMMISSION
AGREEMENTS WITH OTHER OIL COMPANIES WHICH THE FTC FOUND TO BE
SUBSTANTIALLY IDENTICAL WITH THE ATLANTIC-GOODYEAR CONTRACT, OF
GOODYEAR'S CONDUCT FOR MORE THAN 14 YEARS AIMED AT USING OIL COMPANY
POWER STRUCTURES TO CURTAIL COMPETITION IN TBA.  THE FTC COULD CONCLUDE
THEREFROM THAT SUCH CONDUCT REQUIRED PROSCRIBING THE USE OF THE SALES
COMMISSION PLAN BY GOODYEAR.  PP. 375-376. 

(D)  IF GOODYEAR HAS AN AGREEMENT WITH ANOTHER COMPANY WHICH DIFFERS
FROM THAT INVOLVED HEREIN, IT MAY SEEK A REOPENING OF THE FTC'S ORDER. 
P. 377. 

ATLANTIC REFINING CO. V. FEDERAL TRADE COMMISSION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL TRADE COMMISSION HAS FOUND THAT AN AGREEMENT BETWEEN THE
ATLANTIC REFINING COMPANY (ATLANTIC) AND THE GOODYEAR TIRE & RUBBER
COMPANY (GOODYEAR), UNDER WHICH THE FORMER "SPONSORS" THE SALE OF THE
TIRES, BATTERIES AND ACCESSORY (TBA) PRODUCTS OF THE LATTER TO ITS
WHOLESALE OUTLETS AND ITS RETAIL SERVICE STATION DEALERS, IS AN UNFAIR
METHOD OF COMPETITION IN VIOLATION OF SEC 5 OF THE FEDERAL TRADE
COMMISSION ACT, 38 STAT. 719, AS AMENDED, 15 U.S.C.  SEC 45 (1964
ED.).  (FN1)  UNDER THE PLAN ATLANTIC SPONSORS THE SALE OF GOODYEAR
PRODUCTS TO ITS WHOLESALE AND RETAIL OUTLETS ON AN OVERALL COMMISSION
BASIS.  GOODYEAR IS RESPONSIBLE FOR ITS SALES AND SELLS AT ITS OWN
PRICE TO ATLANTIC WHOLESALERS AND DEALERS FOR RESALE; IT BEARS ALL OF
THE COST OF DISTRIBUTION THROUGH ITS WAREHOUSES, STORES AND OTHER
SUPPLY POINTS AND CARRIES ON A JOINT SALES PROMOTION PROGRAM WITH
ATLANTIC.  THE LATTER, HOWEVER, IS PRIMARILY RESPONSIBLE FOR PROMOTING
THE SALE OF GOODYEAR PRODUCTS TO ITS DEALERS AND ASSISTING THEM IN
THEIR RESALE; FOR THIS IT RECEIVES A COMMISSION ON ALL SALES MADE TO
ITS WHOLESALERS AND DEALERS.  THE HEARING EXAMINER, WITH THE APPROVAL
OF THE COMMISSION AND THE COURT OF APPEALS, ENJOINED THE USE OF DIRECT
METHODS OF COERCION ON THE PART OF ATLANTIC UPON ITS DEALERS IN THE
INAUGURATION AND PROMOTION OF THE PLAN.  ATLANTIC DOES NOT SEEK REVIEW
OF THIS PHASE OF THE CASE.  HOWEVER, THE COMMISSION CONSIDERED THE
COERCIVE PRACTICES TO BE SYMPTOMATIC OF A MORE FUNDAMENTAL RESTRAINT OF
TRADE AND FOUND THE SALES-COMMISSION PLAN ILLEGAL IN ITSELF AS "A
CLASSIC EXAMPLE OF THE USE OF ECONOMIC POWER IN ONE MARKET  ...  TO
DESTROY COMPETITION IN ANOTHER MARKET  ...  ."  58 F.T.C. 309, 367.  IT
PROHIBITED ATLANTIC FROM PARTICIPATING IN ANY SUCH COMMISSION
ARRANGEMENT.  (FN2)  SIMILARLY, IT FORBADE GOODYEAR FROM CONTINUING THE
ARRANGEMENT WITH ATLANTIC OR ANY OTHER OIL COMPANY.  (FN3)  GOODYEAR
AND ATLANTIC FILED SEPARATE APPEALS.  THE COURT OF APPEALS APPROVED THE
FINDINGS OF THE COMMISSION AND AFFIRMED ITS ORDER.  "APPRAISING THE
BROADER ASPECTS OF THE SYSTEM USED BY ATLANTIC AND GOODYEAR AS A TYING
ARRANGEMENT," IT AGREED WITH THE COMMISSION THAT IT INJURED
"COMPETITION IN THE DISTRIBUTION OF TBA AT THE MANUFACTURING,
WHOLESALE, AND RETAIL LEVELS."  331 F.2D 394, 402.  WE GRANTED
CERTIORARI, 379 U.S. 943, BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
RAISED AND ESPECIALLY IN LIGHT OF THE HOLDING OF THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT IN TEXACO, INC. V. FEDERAL TRADE
COMM'N, 118 U.S. APP. D.C. 366, 336 F.2D 754, WHICH IS IN APPARENT
CONFLICT WITH THESE CASES.  WE AFFIRM THE JUDGMENTS OF THE COURT OF
APPEALS. 

              I. 

SINCE ATLANTIC HAS NOT SOUGHT REVIEW OF PARAGRAPHS 5 AND 6 OF THE
COMMISSION'S ORDER AS TO ITS USE OF OVERT ACTS OF COERCION ON ITS
WHOLESALERS AND RETAILERS THOSE PORTIONS OF THE ORDER ARE FINAL.  WE
THEREFORE DO NOT SET OUT IN DETAIL ALL OF THE FACTS WHICH ARE SO
CAREFULLY EXAMINED IN THE OPINION OF THE COURT OF APPEALS. 

ATLANTIC IS A MAJOR PRODUCER, REFINER AND DISTRIBUTOR OF OIL AND ITS
BY-PRODUCTS.  ITS MARKET IS CONFINED TO PORTIONS OF 17 STATES ALONG THE
EASTERN SEABOARD.  (FN4)  ITS DISTRIBUTION SYSTEM CONSISTS OF WHOLESALE
DISTRIBUTORS WHO PURCHASE GASOLINE AND LUBRICANTS IN LARGE QUANTITIES
AND RETAIL SERVICE STATION OPERATORS WHO DO BUSINESS EITHER AS LESSEES
OF ATLANTIC OR AS CONTRACT DEALERS SELLING ITS PRODUCTS.  IN 1955
ATLANTIC HAD 2,493 LESSEE DEALERS, WHO PURCHASED 39.1% OF ITS GASOLINE
SALES, AND 3,044 CONTRACT DEALERS, WHO BOUGHT 18.1%.  (FN5)  ABOUT HALF
OF THE CONTRACT DEALERS WERE SERVICE STATION OPERATORS; THE REMAINDER
WERE OPERATORS OF GARAGES, GROCERY STORES AND OTHER OUTLETS WHICH SELL
GASOLINE BUT DO NOT HANDLE TIRES, BATTERIES AND ACCESSORIES. 

GOODYEAR IS THE LARGEST MANUFACTURER OF RUBBER PRODUCTS IN THE UNITED
STATES WITH SALES OF OVER $1,000,000,000 IN 1954.  IT DISTRIBUTES
TIRES, TUBES AND ACCESSORIES THROUGH 57 WAREHOUSES LOCATED THROUGHOUT
THE COUNTRY.  IT DOES NOT WAREHOUSE BATTERIES; "GOODYEAR" BATTERIES ARE
TRADENAMED BY IT BUT MANUFACTURED AND DIRECTLY DISTRIBUTED TO GOODYEAR
OUTLETS BY THE ELECTRIC AUTO-LITE COMPANY AND GOULD-NATIONAL BATTERIES,
INC. GOODYEAR ALSO SELLS ITS PRODUCTS AT WHOLESALE AND RETAIL THROUGH
ABOUT 500 COMPANY-OWNED STORES AND THROUGH NUMEROUS INDEPENDENT
DEALERS.  THESE INDEPENDENT FRANCHISED DEALERS NUMBER MORE THAN 12,000,
THERE BEING AMONG THEM A NUMBER OF ATLANTIC WHOLESALE PETROLEUM
DISTRIBUTORS AND RETAIL PETROLEUM JOBBERS.  GOODYEAR HAS ALSO HAD A
SUBSTANTIAL NUMBER OF NONFRANCHISED DEALERS WHICH INCLUDES MOST SERVICE
STATION CUSTOMERS, INCLUDING THE ATLANTIC STATIONS INVOLVED HERE. 

GASOLINE SERVICE STATIONS ARE PARTICULARLY WELL SUITED TO SELL TIRES,
BATTERIES AND ACCESSORIES.  THEY CONSTITUTE A LARGE AND IMPORTANT
MARKET FOR THOSE PRODUCTS.  SINCE AT LEAST 1932 ATLANTIC HAS BEEN
DISTRIBUTING SUCH PRODUCTS TO ITS DEALERS.  IN 1951 IT INAUGURATED THE
SALES-COMMISSION PLAN.  (FN6)  ITS CONTRACT WITH GOODYEAR COVERED THREE
REGIONS:  PHILADELPHIA-NEW JERSEY, NEW YORK STATE AND NEW ENGLAND. 

THE GOODYEAR-ATLANTIC AGREEMENT REQUIRED ATLANTIC TO ASSIST GOODYEAR
"TO THE FULLEST PRACTICABLE EXTENT IN PERFECTING SALES, CREDIT, AND
MERCHANDISING ARRANGEMENTS" WITH ALL OF ATLANTIC'S OUTLETS.  THIS
INCLUDED ANNOUNCEMENT TO ITS DEALERS OF ITS SPONSORSHIP OF GOODYEAR
PRODUCTS FOLLOWED BY A FIELD REPRESENTATIVE'S CALL TO "SUGGEST  ...
THE MAINTENANCE OF ADEQUATE STOCKS OF MERCHANDISE" AND "MAINTENANCE OF
PROPER IDENTIFICATION AND ADVERTISING" OF SUCH MERCHANDISE.  (FN7)
ATLANTIC WAS TO INSTRUCT ITS SALESMEN TO URGE DEALERS TO "VIGOROUSLY"
REPRESENT GOODYEAR, AND TO "COOPERATE WITH AND ASSIST" GOODYEAR IN ITS
"EFFORTS TO PROMOTE AND INCREASE THE SALE" BY ATLANTIC DEALERS OF
GOODYEAR PRODUCTS.  AND IT WAS TO "MAINTAIN ADEQUATE DEALER TRAINING
PROGRAMS IN THE SALE OF TIRES, BATTERIES, AND ACCESSORIES."  IN
ADDITION, THE COMPANIES ORGANIZED JOINT SALES ORGANIZATION MEETINGS AT
WHICH PLANS WERE MADE FOR PERFECTING THE SALES PLAN.  ONE PROJECT WAS A
"DOUBLE TEAMING" SOLICITATION OF ATLANTIC OUTLETS BY REPRESENTATIVES OF
BOTH COMPANIES TO CONVERT THEM TO GOODYEAR PRODUCTS.  THEY WERE TO CALL
ON THE DEALERS TOGETHER, TAKE STOCK ORDERS, FURNISH INITIAL PRICE LISTS
AND PROJECT FUTURE QUOTAS OF PURCHASES OF GOODYEAR PRODUCTS.  GOODYEAR
ALSO REQUIRED THAT EACH ATLANTIC DEALER BE ASSIGNED TO A SUPPLY POINT
MAINTAINED BY IT, SUCH AS A WAREHOUSE, GOODYEAR STORE, INDEPENDENT
DEALER OR DESIGNATED ATLANTIC DISTRIBUTOR OR RETAIL DEALER.  ATLANTIC
WOULD NOT RECEIVE ANY COMMISSION ON PURCHASES MADE OUTSIDE OF AN
ASSIGNED SUPPLY POINT.  ITS COMMISSION OF 10% ON SALES TO ATLANTIC
DEALERS AND 7.5% ON SALES TO ITS WHOLESALERS WAS PAID ON THE BASIS OF A
MASTER SHEET PREPARED BY GOODYEAR AND FURNISHED ATLANTIC EACH MONTH. 
THIS LIST WAS BROKEN DOWN SO AS TO SHOW THE INDIVIDUAL PURCHASES OF
EACH DEALER (EXCEPT THOSE WHOSE SUPPLY POINTS FOR GOODYEAR PRODUCTS
WERE ATLANTIC WHOLESALERS).  UNDER THIS REPORTING TECHNIQUE, THE
COMMISSION FOUND, "ATLANTIC MAY DETERMINE THE EXACT AMOUNT OF SPONSORED
TBA PURCHASED BY EACH ATLANTIC OUTLET  ...  ."  58 F.T.C. 309, 351. 
GOODYEAR ALSO FURNISHED, THIS TIME AT THE SPECIFIC REQUEST OF ATLANTIC,
A LIST OF THE LATTER'S RECALCITRANT DEALERS WHO REFUSED TO BE
IDENTIFIED WITH THE "GOODYEAR PROGRAM."  THESE LISTS ATLANTIC FORWARDED
TO ITS DISTRICT OFFICES FOR "APPROPRIATE ACTION."  ON ONE OCCASION A
LIST OF 46 SUCH DEALERS WAS FURNISHED ATLANTIC OFFICIALS BY GOODYEAR. 
THE COMMISSION FOUND THAT "THE ENTIRE GROUP  ...  WAS THEREAFTER SIGNED
TO GOODYEAR CONTRACTS AND GOODYEAR ADVERTISING SIGNS WERE INSTALLED AT
THEIR STATIONS."  ID., AT 346-347. 

THE EFFECTIVENESS OF THE PROGRAM IS EVIDENCED BY THE RESULTS.  WITHIN
SEVEN MONTHS AFTER THE AGREEMENT GOODYEAR HAD SIGNED UP 96% AND 98%,
RESPECTIVELY, OF ATLANTIC'S DEALERS IN TWO OF THE THREE AREAS ASSIGNED
TO IT.  IN 1952 THE SALE OF GOODYEAR PRODUCTS TO ATLANTIC DEALERS WAS
$4,175,890 - 40% HIGHER THAN ATLANTIC'S SALES DURING THE LAST YEAR OF
ITS PURCHASE-RESALE PLAN WITH LEE TIRES AND EXIDE BATTERIES.  BY 1955
THESE SALES OF GOODYEAR PRODUCTS AMOUNTED TO $5,700,121.  TOTAL SALES
OF GOODYEAR AND FIRESTONE PRODUCTS FROM JUNE 1950 TO JUNE 1956 WERE
OVER $52,000,000.  THIS ENORMOUS INCREASE, THE FINDINGS INDICATE, WAS
THE RESULT OF THE EFFECTIVE POLICING OF THE PLAN.   THE REPORTS OF
SALES BY GOODYEAR TO ATLANTIC ENABLED IT TO KNOW EXACTLY THE AMOUNT OF
GOODYEAR PRODUCTS THE GREAT MAJORITY OF ITS DEALERS WERE BUYING. 

THE COMMISSION STRESSED THE EVIDENCE SHOWING THAT "ATLANTIC DEALERS
HAVE BEEN ORALLY ADVISED BY SALES OFFICIALS OF THE OIL COMPANY THAT
THEIR CONTINUED STATUS AS ATLANTIC DEALERS AND LESSEES WILL BE IN
JEOPARDY IF THEY DO NOT PURCHASE SUFFICIENT QUANTITIES OF SPONSORED"
TIRES, BATTERIES AND ACCESSORIES.  ID., AT 342.  INDEED, SOME DEALERS
LOST THEIR LEASES AFTER BEING REPORTED FOR NOT COMPLYING WITH THE
GOODYEAR SALES PROGRAM.  BUT WE NEED NOT DETAIL THIS FEATURE OF THE
CASE SINCE ATLANTIC HAS CONCEDED THE POINT BY NOT PERFECTING AN APPEAL
THEREON. 

                                             II. 

METHODS OF COMPETITION IN COMMERCE, AND UNFAIR  ...  ACTS OR PRACTICES
IN COMMERCE  ...  UNLAWFUL."  IN A BROAD DELEGATION OF POWER IT
EMPOWERS THE COMMISSION, IN THE FIRST INSTANCE, TO DETERMINE WHETHER A
METHOD OF COMPETITION OR THE ACT OR PRACTICE COMPLAINED OF IS UNFAIR. 
THE CONGRESS INTENTIONALLY LEFT DEVELOPMENT OF THE TERM "UNFAIR" TO THE
COMMISSION RATHER THAN ATTEMPTING TO DEFINE "THE MANY AND VARIABLE
UNFAIR PRACTICES WHICH PREVAIL IN COMMERCE  ...  ."  S. REP. NO. 592,
63D CONG., 2D SESS., 13.  AS THE CONFERENCE REPORT STATED, UNFAIR
COMPETITION COULD BEST BE PREVENTED "THROUGH THE ACTION OF AN
ADMINISTRATIVE BODY OF PRACTICAL MEN  ...  WHO WILL BE ABLE TO APPLY
THE RULE ENACTED BY CONGRESS TO PARTICULAR BUSINESS SITUATIONS, SO AS
TO ERADICATE EVILS WITH THE LEAST RISK OF INTERFERING WITH LEGITIMATE
BUSINESS OPERATIONS."  H.R. CONF. REP. NO. 1142, 63D CONG., 2D SESS.,
19.  IN THUS DIVINING THAT THERE IS NO LIMIT TO BUSINESS INGENUITY AND
LEGAL GYMNASTICS THE CONGRESS DISPLAYED MUCH FORESIGHT.  SEE FEDERAL
TRADE COMM'N V. CEMENT INSTITUTE, 333 U.S. 683, 693 (1948).  WHERE THE
CONGRESS HAS PROVIDED THAT AN ADMINISTRATIVE AGENCY INITIALLY APPLY A
BROAD STATUTORY TERM TO A PARTICULAR SITUATION, OUR FUNCTION IS LIMITED
TO DETERMINING WHETHER THE COMMISSION'S DECISION "HAS 'WARRANT IN THE
RECORD' AND A REASONABLE BASIS IN LAW."  LABOR BOARD V. HEARST
PUBLICATIONS, INC., 322 U.S. 111, 131 (1944).  WHILE THE FINAL WORD IS
LEFT TO THE COURTS, NECESSARILY "WE GIVE GREAT WEIGHT TO THE
COMMISSION'S CONCLUSION  ...  ."  FEDERAL TRADE COMM'N V. CEMENT
INSTITUTE, SUPRA, AT 720. 

      III. 

CERTAINLY THERE IS "WARRANT IN THE RECORD" FOR THE FINDINGS OF THE
COMMISSION HERE.  SUBSTANTIAL EVIDENCE SUPPORTS THE CONCLUSION THAT
NOTWITHSTANDING ATLANTIC'S CONTENTION THAT IT AND ITS DEALERS ARE
MUTUALLY DEPENDENT UPON EACH OTHER, THEY SIMPLY DO NOT BARGAIN AS
EQUALS.  AMONG THE SOURCES OF LEVERAGE IN ATLANTIC'S HANDS ARE ITS
LEASE AND EQUIPMENT LOAN CONTRACTS WITH THEIR CANCELLATION AND SHORT
TERM PROVISIONS.  ONLY LAST TERM WE DESCRIBED THE POWER IMPLICATIONS OF
SUCH ARRANGEMENTS IN SIMPSON V. UNION OIL CO., 377 U.S. 13 (1964), AND
WE NEED NOT REPEAT THAT DISCUSSION HERE.  IT MUST ALSO BE REMEMBERED
THAT ATLANTIC CONTROLLED THE SUPPLY OF GASOLINE AND OIL TO ITS
WHOLESALERS AND DEALERS.  THIS WAS AN ADDITIONAL SOURCE OF ECONOMIC
LEVERAGE, UNITED STATES V. LOEW'S, INC., 371 U.S. 38, 45 (1962), AS WAS
ITS EXTENSIVE CONTROL OF ALL ADVERTISING ON THE PREMISES OF ITS
DEALERS. 

FURTHERMORE, THERE WAS ABUNDANT EVIDENCE THAT ATLANTIC, IN SOME
INSTANCES WITH THE AID OF GOODYEAR, NOT ONLY EXERTED THE PERSUASION
THAT IS A NATURAL INCIDENT OF ITS ECONOMIC POWER, BUT COUPLED WITH IT
DIRECT AND OVERT THREATS OF REPRISAL SUCH AS ARE NOW ENJOINED BY
PARAGRAPHS 5 AND 6 OF THE ORDER.  INDEED, THE COMMISSION COULD PROPERLY
HAVE CONCLUDED THAT IT WAS FOR THIS BUNDLE OF PERSUASION THAT GOODYEAR
PAID ATLANTIC ITS COMMISSION.  WE WILL NOT REPEAT THE MANNER IN WHICH
THIS SPONSORSHIP WAS CARRIED OUT.  IT IS SUFFICIENT TO NOTE THAT THE
MOST IMPRESSIVE EVIDENCE OF ITS EFFECTIVENESS WAS ITS UNDENIABLE
SUCCESS WITHIN A SHORT TIME OF ITS INCEPTION.  IN 1951, SEVEN MONTHS
AFTER THE SALES-COMMISSION PLAN HAD GONE INTO EFFECT, GOODYEAR HAD
ENJOYED GREAT SUCCESS IN SIGNING CONTRACTS WITH ATLANTIC DEALERS
DESPITE THE FACT THAT A 1946-1949 SURVEY HAD SHOWN THAT 67% OF THE
DEALERS HAD PREFERRED LEE TIRES AND 76% EXIDE BATTERIES. 

WITH THIS BACKGROUND IN MIND, WE CONSIDER WHETHER THERE WAS A
"REASONABLE BASIS IN LAW" FOR THE COMMISSION'S ULTIMATE CONCLUSION THAT
THE SALES-COMMISSION PLAN CONSTITUTED AN UNFAIR METHOD OF COMPETITION. 
                                            IV. 

AT THE OUTSET WE MUST STRESS WHAT WE DO NOT FIND PRESENT HERE.  WE
RECOGNIZE THAT THE GOODYEAR-ATLANTIC CONTRACT IS NOT A TYING
ARRANGEMENT.  ATLANTIC IS NOT REQUIRED TO TIE ITS SALE OF GASOLINE AND
OTHER PETROLEUM PRODUCTS TO PURCHASES OF GOODYEAR TIRES, BATTERIES AND
ACCESSORIES.  NOR DOES IT EXPRESSLY REQUIRE SUCH PURCHASES OF ITS
DEALERS.  BUT NEITHER DO WE UNDERSTAND THAT EITHER THE COMMISSION OR
THE COURT OF APPEALS HELD THAT THE SALES-COMMISSION ARRANGEMENT WAS A
TYING SCHEME.  WHAT THEY DID FIND WAS THAT THE CENTRAL COMPETITIVE
CHARACTERISTIC WAS THE SAME IN BOTH CASES - THE UTILIZATION OF ECONOMIC
POWER IN ONE MARKET TO CURTAIL COMPETITION IN ANOTHER.  HERE THAT LEVER
WAS BOLSTERED BY ACTUAL THREATS AND COERCIVE PRACTICES.  AS OUR CASES
HOLD, ALL THAT IS NECESSARY IN SEC 5 PROCEEDINGS TO FIND A VIOLATION IS
TO DISCOVER CONDUCT THAT "RUNS COUNTER TO THE PUBLIC POLICY DECLARED IN
THE" ACT.  FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N, 312 U.S.
457, 463 (1941).  BUT THIS IS OF NECESSITY, AND WAS INTENDED TO BE, A
STANDARD TO WHICH THE COMMISSION WOULD GIVE SUBSTANCE.  IN DOING SO,
ITS USE AS A GUIDELINE OF RECOGNIZED VIOLATIONS OF THE ANTITRUST LAWS
WAS, WE BELIEVE, ENTIRELY APPROPRIATE.  IT HAS LONG BEEN RECOGNIZED
THAT THERE ARE MANY UNFAIR METHODS OF COMPETITION THAT DO NOT ASSUME
THE PROPORTIONS OF ANTITRUST VIOLATIONS.  FEDERAL TRADE COMM'N V.
MOTION PICTURE ADVERTISING SERVICE CO., 344 U.S. 392, 394 (1953).  WHEN
CONDUCT DOES BEAR THE CHARACTERISTICS OF RECOGNIZED ANTITRUST
VIOLATIONS IT BECOMES SUSPECT, AND THE COMMISSION MAY PROPERLY LOOK TO
CASES APPLYING THOSE LAWS FOR GUIDANCE. 

ALTHOUGH THE COMMISSION RELIED ON SUCH CASES HERE, IT EXPRESSLY
REJECTED A MECHANICAL APPLICATION OF THE LAW OF TYING ARRANGEMENTS. 
RATHER IT LOOKED TO THE ENTIRE RECORD AS A BASIS FOR ITS CONCLUSION
THAT THE ACTIVITY OF GOODYEAR AND ATLANTIC IMPAIRED COMPETITION AT
THREE LEVELS OF THE TIRES, BATTERIES AND ACCESSORIES INDUSTRY.  IT
FOUND THAT WHOLESALERS AND MANUFACTURERS OF COMPETING BRANDS, AND EVEN
GOODYEAR WHOLESALERS WHO WERE NOT AUTHORIZED SUPPLY POINTS, WERE
FORECLOSED FROM THE ATLANTIC MARKET.  IN ADDITION, IT RECOGNIZED THE
OBVIOUS FACT THAT FIRESTONE AND GOODYEAR WERE EXCLUDED FROM SELLING TO
ATLANTIC'S DEALERS IN EACH OTHER'S TERRITORIES.  BOTH OF THESE EFFECTS
ON COMPETITION FLOWED FROM THE CONTRACT ITSELF.  IT ALSO FOUND THAT THE
PLIGHT OF ATLANTIC WHOLESALERS AND RETAILERS WAS EQUALLY CLEAR.  THEY
HAD TO COMPETE WITH OTHER WHOLESALERS AND RETAILERS WHO WERE FREE TO
STOCK SEVERAL BRANDS, BUT THEY WERE EFFECTIVELY FORECLOSED FROM SELLING
BRANDS OTHER THAN GOODYEAR.  THIS RESTRAINT IS IN THIS RESPECT BROADER
THAN THE ONE FOUND IN INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392 (1947), WHERE THE DEALERS COULD STOCK OTHER SALT IF THEY COULD BUY
IT AT LOWER PRICES.  HERE THE DEALERS COULD BUY ONLY AT GOODYEAR'S
PRICE. 

THUS THE COMMISSION WAS WARRANTED IN FINDING THAT THE EFFECT OF THE
PLAN WAS AS THOUGH ATLANTIC HAD AGREED WITH GOODYEAR TO REQUIRE ITS
DEALERS TO BUY GOODYEAR PRODUCTS AND HAD DONE SO.  IT IS BEYOND
QUESTION THAT THE EFFECT ON COMMERCE WAS NOT INSUBSTANTIAL.  IN
INTERNATIONAL SALT CO., THE MARKET FORECLOSED WAS $500,000 ANNUALLY. 
FIRESTONE AND GOODYEAR SALES ALONE EXCEEDED $11,000,000 IN 1955 AND
$50,000,000 IN SIX YEARS, AND MORE THAN 5,500 RETAILERS AND WHOLESALERS
WERE AFFECTED. 

GOODYEAR AND ATLANTIC CONTEND THAT THE COMMISSION SHOULD HAVE MADE A
FAR MORE EXTENSIVE ECONOMIC ANALYSIS OF THE COMPETITIVE EFFECT OF THE
SALES-COMMISSION PLAN, EXAMINING THE ENTIRE MARKET IN TIRES, BATTERIES
AND ACCESSORIES.  BUT JUST AS THE EFFECT OF THIS PLAN IS SIMILAR TO
THAT OF A TIE-IN, SO IS IT UNNECESSARY TO EMBARK UPON A FULL-SCALE
ECONOMIC ANALYSIS OF COMPETITIVE EFFECT.  WE THINK IT ENOUGH THAT THE
COMMISSION FOUND THAT A NOT INSUBSTANTIAL PORTION OF COMMERCE IS
AFFECTED.  SEE UNITED STATES V. LOEW'S, INC., 371 U.S. 38, 45, N. 4
(1962); INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392 (1947). 

NOR CAN WE SAY THAT THE COMMISSION ERRED IN REFUSING TO CONSIDER
EVIDENCE OF ECONOMIC JUSTIFICATION FOR THE PROGRAM.  WHILE THESE
CONTRACTS MAY WELL PROVIDE ATLANTIC WITH AN ECONOMICAL METHOD OF
ASSURING EFFICIENT PRODUCT DISTRIBUTION AMONG ITS DEALERS THEY ALSO
AMOUNT TO A DEVICE THAT PERMITS SUPPLIERS OF TIRES, BATTERIES AND
ACCESSORIES, THROUGH THE USE OF OIL COMPANY POWER, TO EFFECTIVELY SEW
UP LARGE MARKETS.  UPON CONSIDERING THE DESTRUCTIVE EFFECT ON COMMERCE
THAT WOULD RESULT FROM THE WIDESPREAD USE OF THESE CONTRACTS BY MAJOR
OIL COMPANIES AND SUPPLIERS, WE CONCLUDE THAT THE COMMISSION WAS
CLEARLY JUSTIFIED IN REFUSING THE PARTICIPANTS AN OPPORTUNITY TO OFFSET
THESE EVILS BY A SHOWING OF ECONOMIC BENEFIT TO THEMSELVES.  NORTHERN
PACIFIC R. CO. V. UNITED STATES, 356 U.S. 1, 6-7 (1958). 

THE SHORT OF IT IS THAT ATLANTIC, WITH GOODYEAR'S ENCOURAGEMENT AND
ASSISTANCE, HAS MARSHALED ITS FULL ECONOMIC POWER IN A CONTINUING
CAMPAIGN TO FORCE ITS DEALERS AND WHOLESALERS TO BUY GOODYEAR
PRODUCTS.  THE ANTICOMPETITIVE EFFECTS OF THIS PROGRAM ARE CLEAR ON THE
RECORD AND RENDER UNNECESSARY EXTENSIVE ECONOMIC ANALYSIS OF MARKET
PERCENTAGES OR BUSINESS JUSTIFICATIONS IN DETERMINING WHETHER THIS WAS
A METHOD OF COMPETITION WHICH CONGRESS HAD DECLARED UNFAIR AND
THEREFORE UNLAWFUL. 

                                              V. 

WE NOW TURN TO THE MATTER OF RELIEF.  AS WE HAVE SAID, THE
COMMISSION'S ORDER FORBIDS ATLANTIC'S PARTICIPATION IN ANY CONTRACT
WITH ANY SUPPLIER OF TIRES, BATTERIES AND ACCESSORIES WHEREBY IT
RECEIVES ANYTHING OF VALUE IN CONNNECTION WITH THE SALE OF SUCH
PRODUCTS BY ANY MARKETER.  IT ALSO PROHIBITS GOODYEAR FROM CONTINUING
OR EFFECTING ANY CONTRACT WITH ATLANTIC, "OR WITH ANY OTHER MARKETING
OIL COMPANY," WHEREBY GOODYEAR PAYS ANYTHING OF VALUE TO THE OIL
COMPANY IN CONNECTION WITH THE SALE OF TIRES, BATTERIES AND ACCESSORIES
BY GOODYEAR TO WHOLESALERS OR RETAILERS OF THE OIL COMPANY. 

1.  WE FIRST CONSIDER ATLANTIC, WHOSE MAJOR ARGUMENT IS THAT THE
ORDER IS ARBITRARY AND GOES TOO FAR.  IT DISALLOWS THE SALES-COMMISSION
PLAN, ATLANTIC SAYS, BUT PERMITS REINSTITUTION OF THE OLD PURCHASE
RESALE PLAN EVEN THOUGH THE LATTER HAS THE SAME ANTICOMPETITIVE EFFECTS
AND IS A LESS EFFECTIVE METHOD OF DISTRIBUTION.  THIS POSITION FLOWS
FROM THE LANGUAGE OF THE ORDER WHICH PROHIBITS ATLANTIC'S RECEIPT OF
ANYTHING OF VALUE IN CONNECTION WITH THE SALE OF TIRES, BATTERIES AND
ACCESSORIES BY ANY MARKETER "OTHER THAN THE ATLANTIC REFINING
COMPANY."  THE MERITS OF THE PURCHASE-RESALE PLAN, HOWEVER, WERE NOT
BEFORE THE COMMISSION AND WE THEREFORE HAVE NO OCCASION TO PASS UPON
THEM.  NOR DO WE BELIEVE THAT THE ORDER IS TOO BROAD.  SECTION 5(B)
EMPOWERS THE COMMISSION TO ISSUE A CEASE-AND-DESIST ORDER AGAINST
ANYONE USING AN UNFAIR METHOD OF COMPETITION IN COMMERCE.  THE
COMMISSION WAS OF THE OPINION THAT TO ENJOIN THE USE OF OVERT COERCIVE
TACTICS WAS INSUFFICIENT.  WE THINK IT WAS JUSTIFIED IN THIS
CONCLUSION.  THE LONG EXISTENCE OF THE PLAN ITSELF, COUPLED WITH THE
COERCIVE ACTS PRACTICED BY ATLANTIC PURSUANT TO IT, WARRANTED A
DECISION TO REQUIRE MORE.  THE COMMISSION COULD HAVE DECIDED THAT TO
UPROOT THE PRACTICE REQUIRED ITS COMPLETE PROHIBITION; OTHERWISE
DEALERS WOULD NOT ENJOY COMPLETE FREEDOM FROM UNFAIR PRACTICES WHICH
THE ACT CONDEMNS.  THESE ARE MATTERS WELL WITHIN THE AMBIT OF THE
COMMISSION'S AUTHORITY. 

2.  AS FOR GOODYEAR WE HOLD THAT THE ORDER IS ENTIRELY WITHIN THE
POWER OF THE COMMISSION.  BOTH THE COMMISSION AND THE COURT OF APPEALS
STRESSED THAT THE SALES-COMMISSION PLAN ENABLED GOODYEAR "TO INTEGRATE
INTO ITS OWN NATIONWIDE DISTRIBUTION SYSTEM THE ECONOMIC POWER
POSSESSED BY ATLANTIC OVER ITS WHOLESALE AND RETAIL PETROLEUM
OUTLETS."  58 F.T.C., AT 348.  IN ADDITION, THE COMMISSION DEDICATED A
CONSIDERABLE PORTION OF ITS OPINION TO GOODYEAR'S ROLE IN CARRYING IT
OUT.  THUS, ALTHOUGH IT IS THE OIL COMPANY'S POWER AND OVERT ACTS
TOWARD ITS OUTLETS THAT OUTLAW THE COMMISSION PLAN, THE COMMISSION WAS
NOT RESTRICTED SOLELY TO AN EXAMINATION OF ITS ACTIVITY.  RATHER, IN
DECIDING UPON THE RELIEF TO BE ENTERED AGAINST GOODYEAR, IT COULD
APPROPRIATELY CONSIDER ITS PROPENSITY FOR HARNESSING AND UTILIZING THAT
POWER.  BECAUSE OF THE RELEVANCE OF THAT EVIDENCE TO OUR PRESENT
INQUIRY WE WILL CONSIDER IT HERE IN SOME DETAIL. 

GOODYEAR WAS NO SILENT OR INACTIVE PARTNER IN THE IMPLEMENTATION OF
THE SALES-COMMISSION PLAN.  IT DID NOT SIMPLY SIT BACK AND PASSIVELY
ACCEPT WHATEVER BENEFITS MIGHT ACCRUE TO IT FROM THE ATLANTIC
CONTRACT.  INDEED, THE MOST STRIKING ASPECT OF THE PROGRAM, IN THE
COMMISSION'S VIEW, WAS THE DEGREE TO WHICH THE PETITIONERS WORKED
TOGETHER TO ACHIEVE THE PROGRAM'S SUCCESS.  A GOODYEAR REPRESENTATIVE
PUT IT VERY NEATLY WHEN HE SAID:  "AFTER YEARS OF COURTSHIP ATLANTIC
AND GOODYEAR HAVE WED  ...  .  WE WELCOME WHOLEHEARTEDLY THIS MERGER." 

EXAMPLES OF THIS CLOSE COOPERATION WERE NUMEROUS.  ATLANTIC HAD A
RATHER LARGE TURNOVER IN DEALERSHIPS, AS WELL AS A SUBSTANTIAL NUMBER
OF NEW STATION OPENINGS EACH YEAR.  WITH THE SELECTION OF PERSONS TO
MAN THESE STATIONS, GOODYEAR SUPPLY POINTS WERE NOTIFIED BY ATLANTIC
BEFORE THEY ACTUALLY BEGAN OPERATIONS, THUS ALLOWING ATLANTIC-GOODYEAR
TEAMS AN OPPORTUNITY TO CALL ON THE PROSPECTIVE DEALER, TO GET INITIAL
ORDERS BEFORE LOCAL COMPETITORS AND TO CONDITION ACCEPTANCE OF THE
GOODYEAR LINE.  GOODYEAR BRANDS WERE USED FOR DEMONSTRATION IN ATLANTIC
TRAINING SCHOOLS FOR THESE NEW DEALERS, AND DISCUSSIONS OF TIRES,
BATTERIES AND ACCESSORIES AT THESE SCHOOLS WERE OFTEN CONDUCTED BY
REPRESENTATIVES OF BOTH ATLANTIC AND GOODYEAR. 

MOREOVER, ATLANTIC GAVE GOODYEAR LISTS OF ITS DEALERS SO THAT THE
LATTER COULD REMOVE ADVERTISING FOR OTHER PRODUCTS AND REPLACE IT WITH
ITS OWN.  GOODYEAR SENT LISTS OF DEALERS REFUSING TO ACCEPT ITS
ADVERTISING TO ATLANTIC FOR "APPROPRIATE ACTION"; AND IT WILL BE
RECALLED THAT ON ONE OCCASION WHEN A LIST OF 46 SUCH DEALERS WAS
FORWARDED TO ATLANTIC, ALL SOON FELL INTO LINE.  THIS IS A PARTICULARLY
IMPRESSIVE EXAMPLE OF GOODYEAR'S INCLINATION TO USE ATLANTIC'S POWER
FOR ITS OWN BENEFIT.  AND THERE ARE MORE. 

THE REPORTING TECHNIQUE USED BY PETITIONERS WAS ESPECIALLY
REVEALING.  THROUGH IT, ATLANTIC COULD DETERMINE THE EXACT AMOUNT OF
SPONSORED PRODUCTS PURCHASED BY EACH ATLANTIC RETAIL OUTLET FROM ITS
ASSIGNED SUPPLY POINT.  GOODYEAR SUPPLIED THIS INFORMATION SUA SPONTE
INSOFAR AS THE RECORD SHOWS.  OSTENSIBLY IT WAS USED IN DETERMINING
COMMISSIONS DUE ATLANTIC.  WHAT MAKES IT SUSPECT IS THE DETAIL WITH
WHICH IT WAS COMPILED - WHOLLY UNNECESSARY FOR COMMISSION-PAYMENT
PURPOSES.  ITS POTENTIAL USE FOR CHANNELING PRESSURES UPON RECALCITRANT
DEALERS IS OBVIOUS.  AND WHEN CONSIDERED ALONGSIDE THE ADMITTED OVERT
COERCIVE PRACTICES OF ATLANTIC, THIS LIST BECOMES A POTENT DEVICE IN
ENSURING THE SUCCESS OF THE PROGRAM. 

THE COMMISSION ALSO FOUND THAT GOODYEAR AND ATLANTIC CONCLUDED THAT
THE MOST EFFECTIVE MERCHANDISING TACTIC WAS DUAL SOLICITATION OR SO
CALLED "DOUBLE-TEAMING."  GOODYEAR RELIED HEAVILY ON THIS TECHNIQUE AND
HAD URGED IT ON THE OIL COMPANIES IN A 1951 LETTER FROM ITS SALES
COMMISSION PROGRAM MANAGER.  THE COMMISSION FOUND THAT "GOODYEAR THUS
APPEARED CONFIDENT THAT THE PRESENCE OF AN ATLANTIC SALESMAN TOGETHER
WITH THE GOODYEAR REPRESENTATIVE WOULD RENDER UNNECESSARY ANY HIGGLING
OR HAGGLING OVER PRICE BEFORE OBTAINING AN INITIAL ORDER FOR TBA FROM
ATLANTIC DEALERS."  58 F.T.C., AT 355.  GOODYEAR'S CONFIDENCE WAS
JUSTIFIED, FOR AS THE COMMISSION OBSERVED, THE ANNUAL DEALER EVALUATION
BY ATLANTIC SALESMEN CARRIED SUBSTANTIAL WEIGHT WHEN THE DISTRICT
MANAGERS DECIDED UPON ANNUAL LEASE EXTENSIONS, AND DEALERS WERE
THEREFORE UNDERSTANDABLY SUSCEPTIBLE TO THE ENCOURAGEMENT OF GOODYEAR
SALESMEN WHEN ATLANTIC MEN WERE NEARBY LOOKING OVER THEIR SHOULDERS. 
THUS, THE COMMISSION WAS WELL JUSTIFIED IN CONCLUDING THAT GOODYEAR HAD
IN EFFECT PURCHASED A "CAPTIVE MARKET." 

WITH THE PRECEDING DISCUSSION IN MIND, WE TURN TO GOODYEAR'S
RELATIONSHIPS WITH OTHER OIL COMPANIES.  AS OF DECEMBER 1964 IT HAD
SALES-COMMISSION AGREEMENTS WITH 20 OTHER OIL COMPANIES.  NINE OF THESE
CONTRACTS WERE BEFORE THE COMMISSION IN THE INSTANT CASE AND WERE FOUND
TO BE "IN ALL MATERIAL RESPECTS IDENTICAL WITH THE GOODYEAR-ATLANTIC
CONTRACT."  ID., AT 352.  THEY SIMILARLY REQUIRE THE COMPANIES TO
ASSIST ACTIVELY IN THE "SELLING AND PROMOTION" OF GOODYEAR PRODUCTS. 
THERE IS SPECIFIC EVIDENCE IN THE RECORD OF THE SHORT-TERM LEASE
AGREEMENTS USED BY SHELL, SINCLAIR AND SHERWOOD BROS., THREE OF THE
COMPANIES WITH WHICH GOODYEAR HAS SUCH AGREEMENTS.  MOREOVER, THERE WAS
SOME INDICATION THAT ONLY THREE OIL COMPANIES USE THREE-YEAR LEASES. 
FURTHERMORE, THERE WAS EVIDENCE OF PRACTICES BY AT LEAST FOUR OIL
COMPANIES AND GOODYEAR SIMILAR TO THOSE EXISTING UNDER THE ATLANTIC
ARRANGEMENT.  THESE INCLUDED THREATS AS WELL AS MORE SUBTLE PRESSURES. 

GOODYEAR COMPLAINS THAT THERE IS NO EVIDENCE OF THE ECONOMIC POWER OF
MANY OF THE COMPANIES WITH WHICH IT HAS SALES-COMMISSION PLANS. 
HOWEVER, THE COMMISSION'S ORDER DOES NOT DIRECTLY RESTRICT THE
ACTIVITIES OF THESE COMPANIES.  GOODYEAR, ON THE OTHER HAND, WAS BEFORE
THE COMMISSION AND WAS FOUND TO BE A TRANSGRESSOR.  THERE WAS
SUBSTANTIAL EVIDENCE OF ITS PROPENSITY TO USE THE POWER STRUCTURE OF
ATLANTIC AND AT LEAST FOUR OTHER OIL COMPANIES TO FURTHER ITS OWN
DISTRIBUTION PROGRAM.  NOR IS IT ANY OBJECTION FOR GOODYEAR TO CLAIM
THAT IT DID NOT EXERT ANY OVERT COERCIVE PRESSURES ON THE OIL
COMPANIES' OUTLETS.  IT IS OF LITTLE CONSEQUENCE THAT ATLANTIC ACTUALLY
APPLIED THE PRESSURE.  FOR SO CLOSE WAS THE TEAMWORK OF THE TWO
COMPANIES THAT, EVEN WITH BLINDERS ON, GOODYEAR COULD NOT HAVE BEEN
IGNORANT OF THOSE PRACTICES.  IT IS DIFFICULT TO ESCAPE THE CONCLUSION
THAT THERE WOULD HAVE BEEN LITTLE POINT IN PAYING SUBSTANTIAL
COMMISSIONS TO OIL COMPANIES WERE IT NOT FOR THEIR ABILITY TO EXERT
POWER OVER THEIR WHOLESALERS AND DEALERS - AN ABILITY ADEQUATELY
DEMONSTRATED ON THIS RECORD.  ITS ALLOWANCE OF THESE SUBSTANTIAL
OVERRIDING COMMISSIONS IN FACT PAID OFF HANDSOMELY.  GOODYEAR'S SALES
UNDER ITS VARIOUS SALES-COMMISSION CONTRACTS ROSE FROM $16,700,000 IN
1951 TO $36,000,000 IN 1955.    THE COMMISSION, OF COURSE, HAS "WIDE
DISCRETION IN ITS CHOICE OF A REMEDY DEEMED ADEQUATE TO COPE WITH  ...
UNLAWFUL PRACTICES  ...  ."  JACOB SIEGEL CO. V. FEDERAL TRADE COMM'N,
327 U.S. 608, 611 (1946).  FURTHERMORE, IT ACTS WITHIN THE LIMITS OF
ITS AUTHORITY WHEN IT BARS REPETITIONS OF SIMILAR CONDUCT WITH OTHER
PARTIES.  FEDERAL TRADE COMM'N V. HENRY BROCH & CO., 368 U.S. 360, 364
(1962).  THERE WAS AMPLE EVIDENCE ESTABLISHING ON GOODYEAR'S PART A
COURSE OF CONDUCT LASTING OVER 14 YEARS AIMED AT UTILIZING OIL COMPANY
POWER STRUCTURES TO CURTAIL COMPETITION IN TIRES, BATTERIES AND
ACCESSORIES.  WE THINK THAT THE COMMISSION COULD APPROPRIATELY CONCLUDE
THAT THIS COURSE OF CONDUCT REQUIRED FORBIDDING THE USE OF SALES
COMMISSION PLANS BY GOODYEAR COMPLETELY. 

THIS ORDER DOES NOT NECESSARILY PROHIBIT GOODYEAR FROM MAKING
CONTRACTS WITH COMPANIES NOT POSSESSED OF ECONOMIC POWER OVER THEIR
DEALERS.  THE EVIDENCE IN THIS PARTICULAR RECORD, HOWEVER, DOES INVOLVE
RELATIONSHIPS SUCH AS IT HAS ENJOYED WITH ATLANTIC AND ITS PROPENSITY
TO USE THOSE RELATIONSHIPS FOR AN UNFAIR COMPETITIVE ADVANTAGE. 
GOODYEAR OFFERED NO EVIDENCE THAT IT HAS ARRANGEMENTS DIFFERING FROM
THOSE MENTIONED IN THE INSTANT CASE.  IN THESE CIRCUMSTANCES IT IS
SUFFICIENT TO POINT OUT THAT IN THE EVENT IT HAS SUCH A CONTRACT WITH
SUCH A COMPANY IT MAY SEEK A REOPENING OF THE ORDER APPROVED TODAY. 
THE COMMISSION HAS STATUTORY POWER TO REOPEN AND MODIFY ITS ORDERS AT
ALL TIMES.  BUT CONGRESS HAS PLACED IN THE COMMISSION IN THE FIRST
INSTANCE THE POWER TO SHAPE THE REMEDY NECESSARY TO DEAL WITH UNFAIR
METHODS OF COMPETITION.  WE WILL INTERFERE ONLY WHERE THERE IS NO
REASONABLE RELATION BETWEEN THE REMEDY AND THE VIOLATION.  FEDERAL
TRADE COMM'N V. RUBEROID CO., 343 U.S. 470, 473 (1952).  ON THIS RECORD
WE CANNOT SAY THAT THE COMMISSION'S REMEDY IS UNREASONABLE AND THE
JUDGMENTS ARE THEREFORE AFFIRMED. 

FN1  SECTION 5 PROVIDES IN PERTINENT PART: 

"(A)(1) UNFAIR METHODS OF COMPETITION IN COMMERCE, AND UNFAIR  ...
ACTS OR PRACTICES IN COMMERCE, ARE DECLARED UNLAWFUL. 

  *         *         *         *         * 

"(6)  THE COMMISSION IS EMPOWERED AND DIRECTED TO PREVENT PERSONS,
PARTNERSHIPS, OR CORPORATIONS ...  FROM USING UNFAIR METHODS OF
COMPETITION IN COMMERCE AND UNFAIR  ...  ACTS OR PRACTICES IN
COMMERCE. 

"(B)  WHENEVER THE COMMISSION SHALL HAVE REASON TO BELIEVE THAT ANY
SUCH PERSON, PARTNERSHIP, OR CORPORATION HAS BEEN OR IS USING ANY
UNFAIR METHOD OF COMPETITION OR UNFAIR  ...  ACT OR PRACTICE IN
COMMERCE, AND IF IT SHALL APPEAR TO THE COMMISSION THAT A PROCEEDING BY
IT IN RESPECT THEREOF WOULD BE TO THE INTEREST OF THE PUBLIC, IT SHALL
ISSUE AND SERVE UPON SUCH PERSON, PARTNERSHIP, OR CORPORATION A
COMPLAINT STATING ITS CHARGES IN THAT RESPECT AND CONTAINING A NOTICE
OF A HEARING UPON A DAY AND AT A PLACE THEREIN FIXED AT LEAST THIRTY
DAYS AFTER THE SERVICE OF SAID COMPLAINT ...  .  IF UPON SUCH HEARING
THE COMMISSION SHALL BE OF THE OPINION THAT THE METHOD OF COMPETITION
OR THE ACT OR PRACTICE IN QUESTION IS PROHIBITED BY THIS ACT, 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 ON SUCH PERSON,
PARTNERSHIP, OR CORPORATION AN ORDER REQUIRING SUCH PERSON,
PARTNERSHIP, OR CORPORATION TO CEASE AND DESIST FROM USING SUCH METHOD
OF COMPETITION OR SUCH ACT OR PRACTICE  ...  .  AFTER THE EXPIRATION OF
THE TIME ALLOWED FOR FILING A PETITION FOR REVIEW, IF NO SUCH PETITION
HAS BEEN DULY FILED WITHIN SUCH TIME, THE COMMISSION MAY AT ANY TIME,
AFTER NOTICE AND OPPORTUNITY FOR HEARING, REOPEN AND ALTER, MODIFY, OR
SET ASIDE, IN WHOLE OR IN PART, ANY REPORT OR ORDER MADE OR ISSUED BY
IT UNDER THIS SECTION, WHENEVER IN THE OPINION OF THE COMMISSION
CONDITIONS OF FACT OR OF LAW HAVE SO CHANGED AS TO REQUIRE SUCH ACTION
OR IF THE PUBLIC INTEREST SHALL SO REQUIRE  ...  ." 

FN2  ATLANTIC WAS ORDERED TO CEASE AND DESIST FROM: 

"1.  ENTERING INTO OR CONTINUING IN OPERATION OR EFFECT ANY CONTRACT,
AGREEMENT OR COMBINATION, EXPRESS OR IMPLIED, WITH THE GOODYEAR TIRE &
RUBBER COMPANY, OR THE GOODYEAR TIRE & RUBBER COMPANY, INC., OR WITH
ANY OTHER RUBBER COMPANY OR TIRE MANUFACTURER, OR ANY OTHER SUPPLIER OF
TIRES, BATTERIES, AND/OR ACCESSORIES, WHEREBY THE ATLANTIC REFINING
COMPANY RECEIVES ANYTHING OF VALUE IN CONNECTION WITH THE SALE OF TBA
PRODUCTS TO ANY WHOLESALER OR RETAILER OF ATLANTIC PETROLEUM PRODUCTS
BY ANY MARKETER OR DISTRIBUTOR OF TBA PRODUCTS OTHER THAN THE ATLANTIC
REFINING COMPANY: 

"2.  ACCEPTING OR RECEIVING ANYTHING OF VALUE FROM ANY MANUFACTURER,
DISTRIBUTOR, WHOLESALER, OR OTHER VENDOR OF TBA PRODUCTS, FOR ACTING AS
SALES AGENT OR FOR OTHERWISE SPONSORING, RECOMMENDING, URGING,
INDUCING, OR PROMOTING THE SALE OF TBA PRODUCTS, DIRECTLY OR
INDIRECTLY, BY ANY SUCH VENDOR TO ANY WHOLESALER OR RETAILER OF
ATLANTIC PETROLEUM PRODUCTS: 

"3.  USING OR ATTEMPTING TO USE ANY CONTRACTUAL OR OTHER DEVICE, SUCH
AS, BUT NOT LIMITED TO, AGREEMENTS, LEASES, TRAINING PROGRAMS,
PROMOTIONS, DEALER MEETINGS, DEALER DISCUSSIONS, SERVICE STATION
IDENTIFICATION, CREDIT CARDS, AND FINANCIAL LOANS, TO SPONSOR,
RECOMMEND, URGE, INDUCE, OR OTHERWISE PROMOTE THE SALE OF TBA PRODUCTS
BY ANY DISTRIBUTOR OR MARKETER OF SUCH PRODUCTS OTHER THAN THE ATLANTIC
REFINING COMPANY TO OR THROUGH ANY WHOLESALER OR RETAILER OF ATLANTIC
PETROLEUM PRODUCTS: 

"4.  EMPLOYING ANY METHOD OF INSPECTING, REPORTING, OR SURVEILLANCE
OR USING OR ATTEMPTING TO USE, IN ANY MANNER, ITS RELATIONSHIP WITH
ATLANTIC OUTLETS TO SPONSOR, RECOMMEND, URGE, INDUCE, OR OTHERWISE
PROMOTE THE SALE OF ANY SPECIFIED BRAND OR BRANDS OF TBA PRODUCTS BY
ANY DISTRIBUTOR OR MARKETER OF SUCH PRODUCTS OTHER THAN THE ATLANTIC
REFINING COMPANY TO ANY WHOLESALER OR RETAILER OF ATLANTIC PETROLEUM
PRODUCTS: 

"5.  INTIMIDATING OR COERCING OR ATTEMPTING TO INTIMIDATE OR COERCE
ANY WHOLESALER OR RETAILER OF ATLANTIC PETROLEUM PRODUCTS TO PURCHASE
ANY BRAND OR BRANDS OF TBA PRODUCTS; 

"6.  PREVENTING OR ATTEMPTING TO PREVENT ANY WHOLESALER OR RETAILER
OF ATLANTIC PETROLEUM PRODUCTS FROM PURCHASING AND RESELLING,
MERCHANDISING, OR DISPLAYING TBA PRODUCTS OF HIS OWN INDEPENDENT
CHOICE."  58 F.T.C., AT 369-370. 

FN3  GOODYEAR WAS ORDERED TO CEASE AND DESIST FROM: 

"1.  ENTERING INTO OR CONTINUING IN OPERATION OR EFFECT ANY CONTRACT,
AGREEMENT OR COMBINATION, EXPRESS OR IMPLIED WITH THE ATLANTIC REFINING
COMPANY OR WITH ANY OTHER MARKETING OIL COMPANY WHEREBY GOODYEAR,
DIRECTLY OR INDIRECTLY, PAYS OR CONTRIBUTES ANYTHING OF VALUE TO ANY
SUCH MARKETING OIL COMPANY IN CONNECTION WITH THE SALE OF TBA PRODUCTS
BY GOODYEAR OR ANY DISTRIBUTOR OF GOODYEAR PRODUCTS TO ANY WHOLESALER
OR RETAILER OF PETROLEUM PRODUCTS OF SUCH MARKETING OIL COMPANY:

"2.  PAYING, GRANTING OR ALLOWING, OR OFFERING TO PAY, GRANT OR
ALLOW, ANYTHING OF VALUE TO THE ATLANTIC REFINING COMPANY OR TO ANY
OTHER MARKETING OIL COMPANY FOR ACTING AS SALES AGENT OR FOR OTHERWISE
SPONSORING, RECOMMENDING, URGING, INDUCING OR PROMOTING THE SALE OF TBA
PRODUCTS, DIRECTLY OR INDIRECTLY, BY GOODYEAR OR ANY DISTRIBUTOR OF
GOODYEAR PRODUCTS TO ANY WHOLESALER OR RETAILER OF PETROLEUM PRODUCTS
OF SUCH MARKETING OIL COMPANY: 

"3.  REPORTING OR PARTICIPATING IN THE REPORTING TO THE ATLANTIC
REFINING COMPANY OR ANY OTHER MARKETING OIL COMPANY CONCERNING SALES OF
TBA PRODUCTS TO WHOLESALERS OR RETAILERS OF PETROLEUM PRODUCTS,
INDIVIDUALLY OR BY GROUPS, OF ANY SUCH MARKETING OIL COMPANY."  58
F.T.C., AT 370-371. 

FN4  IN 1948 THESE STATES ACCOUNTED FOR 36.7% OF THE GASOLINE SALES
IN THE UNITED STATES.  ATLANTIC'S SHARE OF THIS MARKET WAS 6.8%; ITS
SHARE OF THE NATIONAL MARKET WAS 2.5%.  IT HAD TOTAL OPERATING REVENUES
EXCEEDING $500,000,000 IN 1954. 

FN5  LESSEE DEALERS LEASE THEIR STATIONS FROM ATLANTIC, WHILE
CONTRACT DEALERS EITHER OWN THEIR OWN STATIONS OR LEASE THEM FROM SOME
PARTY OTHER THAN ATLANTIC. 

FN6  PRIOR TO 1951 ATLANTIC DISTRIBUTED TIRES, BATTERIES AND
ACCESSORIES TO ITS DEALERS THROUGH A PURCHASE-RESALE PLAN, WHEREBY IT
WOULD PURCHASE LEE TIRES, EXIDE BATTERIES AND VARIOUS ACCESSORIES
DIRECTLY FROM THE MANUFACTURERS AND RESELL THEM TO ITS DEALERS AND
WHOLESALERS. 

ATLANTIC ALSO ENTERED INTO A SALES-COMMISSION AGREEMENT WITH THE
FIRESTONE TIRE & RUBBER COMPANY IN 1951.  FIRESTONE PRODUCTS WERE TO BE
MARKETED IN THE EASTERN PENNSYLVANIA, WESTERN PENNSYLVANIA AND SOUTHERN
REGIONS OF ATLANTIC'S SALES TERRITORY, BUT FIRESTONE IS NOT A PARTY TO
THIS ACTION. 

FN7  WHILE ATLANTIC CONTROLLED THE PLACEMENT OF ADVERTISING IN THE
DEALERS' STATIONS, GOODYEAR FURNISHED AND ERECTED THE DISPLAYS. 
ATLANTIC PERMITTED NO SIGNS OR DISPLAYS OTHER THAN THOSE OF SPONSORED
PRODUCTS. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THAT PART OF THE COMMISSION'S ORDER ENJOINING THE PETITIONERS FROM
ENGAGING IN "COERCIVE CONDUCT" DESIGNED TO COMPEL ATLANTIC DEALERS TO
HANDLE ATLANTIC-SPONSORED TIRES, BATTERIES, AND ACCESSORIES IS CLEARLY
CORRECT.  THERE IS AMPLE EVIDENCE THAT ATLANTIC COERCED ITS DEALERS
INTO THE EXCLUSIVE HANDLING OF THE SPONSORED GOODS BY THREATENING THE
CANCELLATION OF DEALER FRANCHISES.  NOT ONLY WAS THERE DIRECT EVIDENCE
OF THE MAKING OF SUCH THREATS; THE NEARLY UNIVERSAL SHIFT TO GOODYEAR'S
PRODUCTS, COMING SHORTLY AFTER THE DEALERS EXPRESSED THEIR PREFERENCE
FOR COMPETING BRANDS, WOULD ITSELF INDICATE THAT THE CHANGE WAS WROUGHT
BY SOMETHING MORE THAN SIMPLE PERSUASION.  ON THE BASIS OF THIS
EVIDENCE, THE COMMISSION REASONABLY CONCLUDED THAT ATLANTIC HAD IMPOSED
ON ITS DEALERS AN ARRANGEMENT WHEREBY CONTINUED MAINTENANCE OF THEIR
RELATIONSHIP WITH ATLANTIC DEPENDED UPON THEIR HANDLING THE SPONSORED
PRODUCTS, DESPITE THE ABSENCE OF CONTRACTUAL TERMS TO THIS EFFECT AND
ATLANTIC'S PROTESTS THAT ITS "OFFICIAL" POLICY WAS ONE OF FREE CHOICE. 

BUT GRANTING THAT THE COMMISSION VALIDLY FOUND THAT THE PETITIONERS
HAD ENGAGED IN COERCIVE PRACTICES AMOUNTING TO A VIOLATION OF SEC. 5 OF
THE ACT DOES NOT LEAD ME TO CONCLUDE THAT ITS ORDER ENJOINING THE USE
OF ANY SALES-COMMISSION PLAN OF DISTRIBUTION IS SUPPORTABLE.  IN
ESSENCE, THE SALES-COMMISSION AGREEMENT BETWEEN ATLANTIC AND GOODYEAR
PROVIDED ATLANTIC WITH A COMMISSION ON ALL SALES MADE BY GOODYEAR TO
THE ATLANTIC DEALERS IN EXCHANGE FOR ATLANTIC'S SPONSORSHIP OF THE
GOODYEAR PRODUCTS.  THE RESPONSIBILITY FOR MAKING THE SALES AND
DELIVERIES WAS GOODYEAR'S, THOUGH ATLANTIC UNDERTOOK TO ENGAGE IN
VARIOUS ACTIVITIES IN SUPPORT OF THE GOODYEAR SALES EFFORT.  THIS
METHOD OF DISTRIBUTION WAS ADOPTED BY ATLANTIC TO REPLACE A PURCHASE
RESALE PLAN WHICH IT HAD PREVIOUSLY EMPLOYED AND FOUND UNSATISFACTORY. 
UNDER THE PURCHASE-RESALE PLAN, ATLANTIC PURCHASED THE TIRES,
BATTERIES, AND ACCESSORIES, WAREHOUSED THEM, AND SOLD THEM TO ITS
DEALERS.  THE PRINCIPAL ADVANTAGE ACCRUING TO ATLANTIC FROM ADOPTION OF
THE SALES-COMMISSION PLAN WAS THAT IT ENABLED ATLANTIC TO DISPENSE WITH
MAINTAINING ITS OWN STORAGE AND DISTRIBUTION FACILITIES.  UNDER BOTH
SYSTEMS, ATLANTIC HAD A FINANCIAL INTEREST IN THE SALE OF THE SPONSORED
PRODUCTS AND, FOR ALL THAT APPEARS, THE SAME INCENTIVE TO MAXIMIZE ITS
DEALERS' PURCHASES OF THEM. 

THERE IS NO REASON TO ASSUME THAT THE SALES-COMMISSION PLAN OF
DISTRIBUTION GAVE TO ATLANTIC ANY DISTINCTIVE CAPACITY TO EFFECT THE
ARRANGEMENT WHICH IS THE GRAVAMEN OF THE VIOLATION PROVED.  THE CORE OF
THAT VIOLATION IS ATLANTIC'S COERCION OF ITS DEALERS INTO HANDLING ONLY
SPONSORED PRODUCTS BY THREATENING TO CANCEL THEIR FRANCHISES AND
INDULGING IN A VARIETY OF RELATED COERCIVE PRACTICES, THEREBY RAISING
SUBSTANTIAL BARRIERS TO COMPETITION IN THAT SEGMENT OF THE MARKET FOR
TIRES, BATTERIES, AND ACCESSORIES REPRESENTED BY ITS DEALERS.  THIS IT
COULD HAVE DONE AS EASILY UNDER THE SALES-COMMISSION PLAN, THE PURCHASE
RESALE PLAN OR ANY PLAN OF DISTRIBUTION WHICH GAVE IT A FINANCIAL
INTEREST IN THE SALE OF ANY PARTICULAR LINE OF TIRES, BATTERIES, AND
ACCESSORIES. 

INDEED THE COMMISSION ITSELF RECOGNIZED THAT WHATEVER POWER ATLANTIC
MAY HAVE OVER ITS DEALERS DOES NOT DERIVE FROM THIS PARTICULAR MEANS OF
DISTRIBUTION: 

"ATLANTIC HAS SUFFICIENT ECONOMIC POWER WITH RESPECT TO ITS WHOLESALE
AND RETAIL PETROLEUM DISTRIBUTORS TO CAUSE THEM TO PURCHASE SUBSTANTIAL
QUANTITIES OF SPONSORED TBA EVEN WITHOUT THE USE OF OVERT COERCIVE
TACTICS OR OF WRITTEN OR ORAL TYING AGREEMENTS, AND THIS POWER IS A
FACT EXISTING INDEPENDENTLY OF THE PARTICULAR METHOD OF DISTRIBUTING OR
SPONSORING TBA USED BY ATLANTIC."* 

*58 F.T.C. 309, AT 364-365. 

THEREFORE, TO THE EXTENT THAT THE COMMISSION'S ORDER IS BASED ON THE
PREMISE THAT THE SALES-COMMISSION PLAN CONFERS UPON ATLANTIC SOME
DISTINCTIVE CAPACITY TO COERCE ITS DEALERS INTO HANDLING SPONSORED
PRODUCTS, AND THEREBY EXCLUDE COMPETING SUPPLIERS, IT IS WITHOUT
FOUNDATION.  INSOFAR AS THIS EXCLUSION RESULTED FROM THREATS OF
FRANCHISE CANCELLATION AND RELATED COERCIVE TACTICS, THAT PART OF THE
ORDER DIRECTED AT THESE PRACTICES WILL AFFORD THE NECESSARY RELIEF. 

THE COMMISSION'S ORDER NEED NOT BE JUSTIFIED ON A SHOWING THAT THE
PLAN CONFERS ANY DISTINCTIVE CAPACITY FOR COERCION UPON ATLANTIC,
HOWEVER, IF IT CAN BE DEMONSTRATED THAT THE PLAN IS MERELY ONE VARIANT
OF A BROADER CATEGORY OF ACTIVITY WHICH COULD BE PROHIBITED UNDER SEC.
5.  IT WOULD BE LESS THAN CANDID TO DENY THAT AGGRESSIVE SALESMANSHIP
BY ATLANTIC REPRESENTATIVES IS APT TO MEET WITH MORE THAN ORDINARY
SUCCESS WHEN DIRECTED AT ATLANTIC DEALERS, EVEN THOUGH THE MOST
SCRUPULOUS OBEDIENCE IS ACCORDED TO THE COMMISSION'S ORDER PROHIBITING
COERCION.  GIVEN THE DISPARITY OF FINANCIAL RESOURCES AND THE NATURAL
DESIRE OF THE DEALERS TO MAINTAIN A CORDIAL RELATIONSHIP WITH ATLANTIC,
SOME COMPETITIVE ADVANTAGE WILL NECESSARILY ACCRUE TO ATLANTIC'S
SPONSORSHIP OF A PARTICULAR LINE OF TIRES, BATTERIES, AND ACCESSORIES
UNDER ANY PLAN OF DISTRIBUTION.  THIS ADVANTAGE IS THE INEVITABLE
RESULT OF THE MARKET STRUCTURE IN WHICH ATLANTIC AND ITS DEALERS FIND
THEMSELVES, AND HAS NOTHING TO DO WITH THE PARTICULAR METHOD WHICH
ATLANTIC MIGHT USE TO MARKET A LINE OF PRODUCTS.  THE DISPARITY IN SIZE
AND FINANCIAL STRENGTH, THE SHORT TERM OF THE PREVAILING LEASES, THE
DIRE FINANCIAL CONSEQUENCES ATTENDANT UPON LEASE CANCELLATION, AND THE
ESTABLISHED MARKET PREFERENCE FOR CERTAIN BRANDS OF GASOLINE - ALL
CONTRIBUTE TO GIVE ATLANTIC A LEVERAGE OVER ITS DEALERS AND A
CORRESPONDING POWER TO EFFECT SOME EXCLUSION OF COMPETITION. 

THE COMMISSION'S ORDER CAN THUS BE UNDERSTOOD AS A MEASURE TO PREVENT
SUCH EXCLUSION BY TAKING A STEP TOWARD THE TOTAL EXCLUSION OF ATLANTIC
FROM THE MARKETING OF TIRES, BATTERIES, AND ACCESSORIES.   INDEED, ONCE
IT IS CONCEDED THAT THE SALES-COMMISSION PLAN MAKES NO DISTINCTIVE
CONTRIBUTION TO ATLANTIC'S COERCIVE CAPACITY, THIS WOULD SEEM THE ONLY
CONCEIVABLE JUSTIFICATION FOR THE COMMISSION'S ORDER.  THIS
JUSTIFICATION, HOWEVER, IS WITHOUT FOUNDATION IN LAW, FOR IT ASSUMES
THAT SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, WHICH PROSCRIBES
UNFAIR METHODS OF COMPETITION, PROHIBITS THE MARKETING OF COMPLEMENTARY
GOODS BY A MANUFACTURER OR PROCESSOR ENJOYING SOME UNDEFINED MEASURE OF
ECONOMIC LEVERAGE VIS-A-VIS HIS DISTRIBUTORS.  SO LONG AS THE
MANUFACTURER DOES ENJOY SOME SUCH LEVERAGE, HIS MARKETING OF
COMPLEMENTARY GOODS THROUGH AN ESTABLISHED SYSTEM OF DISTRIBUTORSHIPS
WILL TEND TO EFFECT SOME EXCLUSION OF COMPETITION, WHETHER THOSE GOODS
BE DISTRIBUTED BY ANOTHER THROUGH A SALES-COMMISSION PLAN, OR PURCHASED
AND RESOLD BY THE MANUFACTURER, OR INDEED MANUFACTURED AND SOLD BY
HIM. 

I CANNOT BELIEVE THAT SEC. 5 WAS INTENDED TO ALLOW THE COMMISSION TO
BLOCK THE EXPANSION OF AN ENTERPRISE INTO THE MARKETING OF SUCH
COMPLEMENTARY ITEMS.  SECTION 5 PROHIBITS UNFAIR METHODS OF
COMPETITION.  THE COERCIVE PRACTICES ENJOINED BY PARAGRAPHS FIVE AND
SIX OF THE ORDER APART, NO UNFAIRNESS IS CLAIMED IN ANY OF THE
PRACTICES EMPLOYED BY ATLANTIC.  ALL CONCEDE THAT THE CONTINUING
EXCLUSIONARY PRESSURE, TO THE EXTENT IT EXISTS, DERIVES FROM THE
IMBALANCE OF ECONOMIC POWER BETWEEN THE TWO PARTIES, RATHER THAN FROM
ANY UNFAIR FEATURE OF THE SALES-COMMISSION PLAN.  TO USE AN UNFAIR
PRACTICE CHARGE TO PUNISH AN ENTERPRISE FOR CONSEQUENCES INEVITABLY
FLOWING FROM ITS POSITION IN THE STRUCTURE OF COMMERCE IS A GRAVE
DISTORTION OF THE STATUTE, IMPOSING A MASSIVE AND UNJUSTIFIABLE
RESTRAINT ON ENTREPRENEURIAL ACTION.  HENCEFORTH, LARGE CONCERNS
MARKETING THEIR PRODUCTS THROUGH SMALLER DISTRIBUTORS STAND VULNERABLE
TO THE CHARGE THAT THEIR METHODS OF COMPETITION ARE UNFAIR BECAUSE THEY
HAVE DONE NO MORE THAN ADD A COMPLEMENTARY PRODUCT TO THOSE ALREADY
SOLD THROUGH THEIR DISTRIBUTORS.  I CAN FIND NO WARRANT FOR THIS
POSITION IN THE WORDS OF THE STATUTE, IN THE ECONOMIC POLICY IT
REFLECTS, OR IN ANY OF THE CASES DECIDED UNDER IT. 

IN SHORT, THERE IS NO JUSTIFICATION WHATEVER FOR THAT PART OF THE
COMMISSION'S ORDER WHICH PROHIBITS THE PETITIONERS FROM EMPLOYING THE
SALES-COMMISSION PLAN OF DISTRIBUTION.  AN ORDER BASED ON THE PREMISE
THAT THE COMMISSION COULD ENJOIN ATLANTIC FROM ANY MARKETING AT ALL OF
TIRES, BATTERIES, AND ACCESSORIES IS WITHOUT FOUNDATION IN THE STATUTE;
AN ORDER BASED ON THE PREMISE THAT THE PLAN CONFERS ON ATLANTIC SOME
DISTINCTIVE CAPACITY FOR COERCION IS WITHOUT FOUNDATION IN FACT. 
BASELESS IN FACT AND IN LAW, THIS ORDER INFLICTS SIGNIFICANT AND
UNDESERVED DAMAGE UPON ATLANTIC.  UNJUSTIFIABLE COMMISSION ORDERS
IMPOSING SUCH DAMAGE ON CORPORATE ENTERPRISE, AND ULTIMATELY ON THE
PUBLIC, CANNOT BE SANCTIONED BY INVOCATION OF ABSTRACTIONS REGARDING
THE DEFERENCE PROPERLY OWED EXPERT TRIBUNALS IN DEVISING REMEDIAL
MEASURES.  IT IS TO AVOID JUST SUCH ERRORS AS INHERE IN THIS ORDER THAT
THE POWER OF JUDICIAL REVIEW WAS GRANTED TO THE COURTS - ERRORS WHICH,
SERVING NO PUBLIC PURPOSE, IMPOSE SENSELESS DAMAGE ON THE PRIVATE

FOR THESE REASONS I WOULD REVERSE THE JUDGMENT OF THE COURT OF
APPEALS APPROVING THE COMMISSION'S PROHIBITION OF THE USE OF THE SALES
COMMISSION PLAN BY ATLANTIC.  I THINK THE COMMISSION'S ORDER AS TO
GOODYEAR SHOULD LIKEWISE HAVE BEEN SET ASIDE BY THE COURT OF APPEALS. 
THAT ORDER IS NOT ONLY RIVEN WITH THE SAME DEFECTS, BUT IN ADDITION
PROHIBITS GOODYEAR FROM ENTERING INTO SALES-COMMISSION AGREEMENTS WITH
OIL COMPANIES WHICH, SO FAR AS WE KNOW, HAVE NEVER PRACTICED THE
COERCIVE TECHNIQUES USED BY ATLANTIC, AND WHICH ARE NOT IN A POSITION
TO EXERCISE ANY LEVERAGE AT ALL OVER THEIR DEALERS. 

MR. JUSTICE GOLDBERG, DISSENTING. 

I WOULD VACATE THE JUDGMENTS BELOW AND REMAND THESE CASES TO THE
COMMISSION, SINCE IN MY VIEW THE COMMISSION HAS NOT SET FORTH THE BASIS
FOR ITS BROAD ORDERS WITH SUFFICIENT CLARITY AND COMPLETENESS, SO THAT
THEY CAN BE PROPERLY REVIEWED.  CF. UNITED STATES V. CHICAGO, M., ST.
P.&P.R. CO., 294 U.S. 499, 511; PHELPS DODGE CORP. V. LABOR BOARD, 313
U.S. 177, 197; BURLINGTON TRUCK LINES V. UNITED STATES, 371 U.S. 156;
LABOR BOARD V. METROPOLITAN INS. CO., 380 U.S. 438. 

ATLANTIC DOES NOT HERE DISPUTE THE FACT THAT IT ENGAGED IN PRACTICES
TO COERCE ITS DEALERS INTO PURCHASING THE SALES-COMMISSION-SPONSORED
TBA.  MOREOVER, I AGREE WITH THE COURT THAT THE RECORD IS SUFFICIENT TO
SUPPORT THE FINDING THAT GOODYEAR PARTICIPATED IN THESE COERCIVE
PRACTICES.  ANTE, AT 373-375.  THEREFORE, I WOULD HAVE NO DIFFICULTY IN
AFFIRMING THE COMMISSION'S ORDERS IF THE COMMISSION HAD ORDERED
ATLANTIC AND GOODYEAR TO CEASE USING SALES-COMMISSION TBA PLANS AS A
REMEDY NECESSARY TO CURE THESE COERCIVE PRACTICES AND PREVENT THEIR
RECURRENCE.  SEE UNITED STATES V. LOEW'S, INC., 371 U.S. 38, 53. 

THE COMMISSION'S OPINION HOWEVER, DOES NOT APPEAR TO REST THESE
ORDERS ON SUCH A BASIS.  RATHER, IT CONSIDERED ATLANTIC'S COERCIVE
ACTIVITIES "AS MERE SYMPTOMS OF A MORE FUNDAMENTAL RESTRAINT OF TRADE
INHERENT IN THE SALES COMMISSION ITSELF."  58 F.T.C. 309, 348. 
APPARENTLY IT WAS BECAUSE THE COMMISSION BELIEVED THAT ATLANTIC'S
PARTICIPATION IN A SALES-COMMISSION PLAN INHERENTLY RESTRICTED ITS
DEALERS' FREE CHOICE IN TBA PURCHASING THAT IT ENJOINED ATLANTIC AND
GOODYEAR FROM ENTERING INTO ANY SALES-COMMISSION PLANS, WITH EACH OTHER
OR OTHERS.  IT IS ON THIS BASIS THAT THE COMMISSION ACTION MUST BE
REVIEWED.  THE PROPRIETY OF AGENCY ACTION MUST BE JUDGED "SOLELY BY THE
GROUNDS INVOKED BY THE AGENCY," SECURITIES COMM'N V. CHENERY CORP., 332
U.S. 194, 196.  SEE LABOR BOARD V. METROPOLITAN INS. CO., SUPRA;
BURLINGTON TRUCK LINES V. UNITED STATES, SUPRA, AT 168. 

WHEN LOOKED AT ON THIS BASIS, HOWEVER, IT BECOMES OBVIOUS THAT THE
COMMISSION HAS NOT SUPPORTED ITS DECISION WITH ADEQUATE FINDINGS AND
CONCLUSIONS, SET FORTH WITH SUFFICIENT CLARITY, SO THAT PROPER REVIEW
IS POSSIBLE.  THIS IS SEEN WHEN THE COMMISSION'S OPINION IS ANALYZED
AND READ IN CONJUNCTION WITH ITS ORDERS, PARTICULARLY ITS ORDER
ENJOINING GOODYEAR FROM PARTICIPATING IN SALES-COMMISSION ARRANGEMENTS
WITH ANY OIL COMPANY. 

APPARENTLY THE COMMISSION'S CONCLUSION THAT THE ATLANTIC-GOODYEAR
SALES-COMMISSION PLAN OPERATES AS AN INHERENTLY UNFAIR METHOD OF
COMPETITION WAS BASED UPON A DETERMINATION THAT THE ATLANTIC DEALERS
WERE IN AN ECONOMICALLY SUBSERVIENT POSITION TO ATLANTIC.  THIS
DETERMINATION IN TURN WAS FOUNDED UPON THE FACTS THAT THE ATLANTIC
LEASE-FRANCHISE ARRANGEMENTS WERE ONLY FOR SHORT ONE-YEAR TERMS
ENABLING ATLANTIC TO TERMINATE THEM WITHOUT CAUSE AT THE END OF ANY
YEAR AND THAT IT WAS THE PRACTICE OF MANY OF THE DEALERS TO BORROW
MONEY FROM ATLANTIC IN ORDER TO STOCK THEIR INVENTORIES.  THIS
SUBSERVIENT POSITION OF THE DEALERS WAS HELD TO PUT THEM IN A POSITION
WHERE "ATLANTIC HAS SUFFICIENT ECONOMIC POWER WITH RESPECT TO ITS
WHOLESALE AND RETAIL PETROLEUM DISTRIBUTORS TO CAUSE THEM TO PURCHASE
SUBSTANTIAL QUANTITIES OF SPONSORED TBA EVEN WITHOUT THE USE OF OVERT
COERCIVE TACTICS OR OF WRITTEN OR ORAL TYING AGREEMENTS, AND THIS POWER
IS A FACT EXISTING INDEPENDENTLY OF THE PARTICULAR METHOD OF
DISTRIBUTING OR SPONSORING TBA USED BY ATLANTIC."  58 F.T.C., AT 364
365. 

THOUGH APPARENTLY DECIDING THIS CASE ON THE BASIS OF ATLANTIC'S
ECONOMIC POWER OVER ITS DEALERS, THE COMMISSION THEN ENJOINED GOODYEAR
FROM CONTINUING EXISTING SALES-COMMISSION ARRANGEMENTS OR ENTERING INTO
NEW ONES WITH ANY OIL COMPANY.  THIS WAS DONE WITHOUT ANY ANALYSIS OF
THE RELATIONSHIP WHICH OTHER OIL COMPANIES MAY HAVE WITH THEIR
DEALERS.  THE COMMISSION DETERMINED ONLY THE FOLLOWING WITH RESPECT TO
OTHER OIL COMPANIES:  (1) THE SALES-COMMISSION CONTRACTS BETWEEN
GOODYEAR AND THE OTHER OIL COMPANIES ARE IN ALL MATERIAL RESPECTS
IDENTICAL TO THE GOODYEAR-ATLANTIC SALES-COMMISSION CONTRACT AND (2)
ONE OF THE OTHER 20 OIL COMPANIES WITH WHICH GOODYEAR HAS THESE SALES
COMMISSION CONTRACTS HAS, IN THE PAST, PRACTICED COERCION ON ITS
DEALERS.  58 F.T.C., AT 352-353.  MOREOVER, IN A RELATED CASE, THE
COMMISSION EXPRESSLY HELD ILLEGAL A TBA SALES-COMMISSION ARRANGEMENT
BETWEEN TEXACO INC. AND THE B.F. GOODRICH COMPANY WITHOUT ANALYSIS OF
THE RELATIONSHIP BETWEEN TEXACO AND ITS DEALERS.  SEE TEXACO, INC. V.
FTC, 118 U.S. APP. D.C. 366, 336 F.2D 754 (C.A.D.C. CIR.).  THIS CASE
AND ANOTHER RELATED CASE, THE FIRESTONE TIRE & RUBBER COMPANY, 58
F.T.C. 371, RESULTED IN BOTH B.F. GOODRICH AND FIRESTONE, AS WELL AS
GOODYEAR, BEING ENJOINED FROM ENGAGING IN ANY SALES-COMMISSION PLAN
WITH ANY OIL COMPANY. 

MOREOVER, THE COMMISSION IN THIS CASE RELIED UPON THE FACTS "THAT
ATLANTIC, WHICH DESCRIBES ITSELF AS '  ...  A LARGE PRODUCER AND
DISTRIBUTOR OF PETROLEUM PRODUCTS' WHOSE OPERATING REVENUE 'TOTALLED
MORE THAN ONE HALF BILLION DOLLARS' IN 1954, DISTRIBUTES GASOLINE
DIRECTLY TO MORE THAN 5,500 RETAIL SERVICE STATIONS AND THROUGH
WHOLESALE DISTRIBUTORS TO MORE THAN 2,800 ADDITIONAL SERVICE STATIONS
IN 17 STATES ALONG THE ATLANTIC SEABORAD.  APPROXIMATELY 81 PERCENT OF
ATLANTIC'S TOTAL SALES OF GASOLINE IN 1955 WERE ACCOUNTED FOR BY THESE
APPROXIMATELY 8,300 RETAIL SERVICE STATIONS."  58 F.T.C., AT 364. 
THESE FACTS WERE STATED TO SHOW THAT ATLANTIC'S POSITION IN THE
PETROLEUM RETAIL MARKET WAS SUFFICIENTLY GREAT SO AS TO MAKE ITS
DEALERSHIPS DESIRABLE AND UNIQUE AND THAT, THEREFORE, ATLANTIC HAD
POWER OVER ITS DEALERS SUFFICIENT TO INDUCE THEM TO BUY ATLANTIC
SPONSORED TBA.  YET, WHILE RELYING ON THESE FACTS ABOUT ATLANTIC, THE
COMMISSION MADE NO DISTINCTION BETWEEN LARGE OR SMALL COMPANIES IN ITS
ORDER THAT PRECLUDED GOODYEAR FROM PARTICIPATING IN ANY SALES
COMMISSION PLAN.  AND, AS DISCUSSED ABOVE, IN RELATED CASES, B.F.
GOODRICH AND FIRESTONE AS WELL HAVE BEEN ENJOINED FROM PARTICIPATING IN
ANY TBA SALES-COMMISSION PLAN, REGARDLESS OF THE SIZE OF THE OIL
COMPANY OR ITS RELATION TO ITS DEALERS. 

AN AMICUS BRIEF FILED ON BEHALF OF A SMALL OIL COMPANY ASSERTS,
HOWEVER, THAT SMALL OIL COMPANIES NEED SALES-COMMISSION TBA PLANS IN
ORDER TO COMPETE EFFECTIVELY WITH THE LARGE COMPANIES.  SINCE THE
COMMISSION HAD ONLY LARGE COMPANIES BEFORE IT IN THESE CASES, HOWEVER,
THIS CONTENTION HAS NOT ADEQUATELY BEEN EXPLORED.  DESPITE THIS FACT,
THE COMMISSION HAS CLEARLY PRECLUDED GOODYEAR, FIRESTONE AND B.F.
GOODRICH FROM ENTERING INTO SALES-COMMISSION ARRANGEMENTS WITH ANY OIL
COMPANY NO MATTER HOW SMALL THE COMPANY AND NO MATTER WHAT THE
COMPETITIVE FACTORS INVOLVED ARE.  MOREOVER, THE COMMISSION'S OPINION
HERE, WHILE AGAIN NOT UNAMBIGUOUS ON THE POINT, INDICATES THAT IT WOULD
BE PER SE AN UNFAIR METHOD OF COMPETITION FOR ANY TIRE COMPANY TO ENTER
INTO A SALES-COMMISSION TBA PROMOTION ARRANGEMENT WITH ANY OIL
COMPANY.  YET THE WHOLE BASIS FOR SUCH A HOLDING RESTS UPON THE LIMITED
ECONOMIC FACTS OF THE ATLANTIC SITUATION.  THIS IS NOT TO SAY THAT THE
COMMISSION COULD NOT CONCLUDE, AFTER ADEQUATE FACTUAL DETERMINATIONS,
THAT A GENERAL RULE APPLICABLE TO ALL COMPANIES IS CORRECT.  IT IS TO
SAY THAT THE COMMISSION MUST HAVE BEFORE IT A SUFFICIENT RECORD AND
MUST MAKE THE NECESSARY FINDINGS SUPPORTIVE OF A RULE OF BROAD
APPLICATION BEFORE A REVIEWING COURT CAN ADEQUATELY PERFORM ITS
FUNCTION. 

FINALLY, THE OPINION AND ORDER OF THE COMMISSION SEEM TO DRAW A
DISTINCTION BETWEEN SALES-COMMISSION AND PURCHASE-RESALE METHODS OF OIL
COMPANY TBA PROMOTION.  THESE ARE ALTERNATIVE METHODS BY WHICH OIL
COMPANIES SPONSOR TBA PURCHASING BY THEIR DEALERS.  IN FACT, PRIOR TO
1951, ATLANTIC DISTRIBUTED TBA THROUGH A PURCHASE-RESALE PLAN. 
ATLANTIC-SPONSORED TBA WAS PURCHASED BY ATLANTIC FROM VARIOUS
MANUFACTURERS AND DISTRIBUTED TO THE ATLANTIC DEALERS THROUGH
WAREHOUSES OWNED BY ATLANTIC.  IN SOME AREAS THE WAREHOUSES WERE
SUPPLEMENTED BY ATLANTIC DEALERS WHO ACTED AS SUPPLY POINT
SUBDISTRIBUTORS TO OTHER DEALERS.  IN MARCH 1951, ATLANTIC CHANGED FROM
THE PURCHASE-RESALE METHOD TO THE SALES-COMMISSION PLAN FOR THE
ANNOUNCED REASON THAT THE LATTER ARRANGEMENT WOULD PRODUCE A
SUBSTANTIAL SAVING IN OPERATING AND CAPITAL COSTS, PLUS A SUBSTANTIAL
IMPROVEMENT IN SERVICE TO ATLANTIC DEALERS.  UNDER THE SALES-COMMISSION
PLAN, THE TIRE COMPANY - RATHER THAN THE OIL COMPANY - PERFORMS THE
DISTRIBUTION FUNCTION.  THE SPONSORED TBA IS MANUFACTURED OR PURCHASED
BY THE TIRE COMPANY AND IS DISTRIBUTED THROUGH WAREHOUSES OWNED BY THE
TIRE COMPANY.  ALSO, THE TIRE COMPANY USES AS SUPPLY POINTS ITS OWN
OUTLETS (BOTH COMPANY-OWNED AND INDEPENDENT) AS WELL AS SOME OIL
COMPANY DEALERS, WHO ARE FRANCHISED BY THE TIRE COMPANY FOR THIS
PURPOSE.  UNDER BOTH PURCHASE-RESALE AND SALES-COMMISSION PLANS, THE
OIL COMPANY IS PRIMARILY RESPONSIBLE FOR SELLING IT TO THEIR MOTORIST
CUSTOMERS.  UNDER BOTH PLANS THE TIRE COMPANY SALESMAN OCCASIONALLY
ACCOMPANIES THE OIL COMPANY SALESMAN TO EXPLAIN NEW TBA PRODUCTS, BUT
THE DAY-TO-DAY PROMOTING AND SELLING ARE DONE BY THE OIL COMPANY
SALESMAN.    IN ITS ORDER THE COMMISSION ENJOINED ATLANTIC FROM USING
ANY SALES-COMMISSION TBA PLAN, BUT EXPRESSLY EXCEPTED FROM THE
INJUNCTION THE USE BY ATLANTIC OF A PURCHASE-RESALE TBA ARRANGEMENT. 
THIS EXCEPTION WAS MADE OVER THE OBJECTION OF THE COMMISSION STAFF THAT
BOTH METHODS OF TBA SPONSORSHIP SHOULD BE CONDEMNED AND ENJOINED.  IN
ANSWER TO THE ARGUMENT THAT IT IS IRRATIONAL TO CONDEMN SALES
COMMISSION SYSTEMS BUT NOT PURCHASE-RESALE PLANS, THE COMMISSION DID
NOT EVEN ATTEMPT TO DISTINGUISH THE TWO BASED ON ANY DIFFERENCE
CONCERNING WHAT IT CONSIDERED TO BE THE ESSENTIAL CORE OF THE VIOLATION
BY ATLANTIC, "THE USE BY THE OIL COMPANY OF ECONOMIC POWER IN ONE
MARKET (HERE, GASOLINE DISTRIBUTION) TO DESTROY COMPETITION IN ANOTHER
MARKET (TBA DISTRIBUTION)."  58 F.T.C., AT 367.  INDEED, IT WOULD SEEM
DIFFICULT TO DRAW ANY DISTINCTION BETWEEN THE TWO PLANS ON THIS BASIS. 
WHILE THE COMMISSION DID ATTEMPT TO DISTINGUISH THE TWO SYSTEMS ON
OTHER BASES, THIS CRUCIAL ASPECT OF THE DECISION WAS HANDLED IN A
SHORT, SUMMARY FASHION, WITHOUT FACTUAL FINDINGS OR ANALYSIS. 
MOREOVER, THE COMMISSION DID NOT EVEN DISCUSS THE ARGUMENT THAT ANY
DISTINCTION WHICH PERMITS PURCHASE-RESALE BUT PROHIBITS SALES
COMMISSION PLANS DISCRIMINATES AGAINST THE SMALLER OIL COMPANIES IN
FAVOR OF LARGER COMPANIES.  IT HAS BEEN ARGUED EARNESTLY BY AN AMICUS
THAT THE CAPITAL INVESTMENT REQUIRED FOR A PURCHASE-RESALE PLAN IS SO
GREAT THAT THE SMALLER OIL COMPANIES CANNOT AFFORD IT AND PRESENTLY
ONLY THE VERY LARGE GULF AND ESSO COMPANIES USE SUCH A METHOD.  THE
RECORD IN THIS CASE IS CLEAR THAT ATLANTIC SWITCHED FROM PURCHASE
RESALE TO SALES-COMMISSION TBA PROMOTION SINCE IT FOUND THE CAPITAL
COSTS OF PURCHASE-RESALE TO BE UNDULY ONEROUS. 

IN HIS BRIEF IN THIS COURT THE SOLICITOR GENERAL, ON BEHALF OF THE
COMMISSION, DID NOT EVEN ARGUE THAT THERE WAS A RATIONAL DISTINCTION
BETWEEN PURCHASE-RESALE AND SALES-COMMISSION TBA PLANS.  RATHER HE
ARGUED THAT THE COMMISSION HAD NOT REALLY APPROVED THE PURCHASE-RESALE
PLAN IN FAILING TO ENJOIN ATLANTIC'S USE OF IT.  THIS ARGUMENT FAILS TO
ACCOUNT FOR THE LANGUAGE OF THE COMMISSION OPINION AND THE FACT THAT
THE COMMISSION REJECTED THE STAFF RECOMMENDATION, BOTH OF WHICH TO ME
ARE QUITE PERSUASIVE FOR THE CONCLUSION THAT THE COMMISSION HAS
APPROVED PURCHASE-RESALE.  MOREOVER, IT IGNORES THE FACT THAT IN THE
RELATED FIRESTONE CASE THE COMMISSION DISTINGUISHED ITS EARLIER
DECISION IN GENERAL MOTORS CORP., 34 F.T.C. 58, WHICH, WHILE CONDEMNING
AND ENJOINING COERCION, DID NOT CONDEMN GENERAL MOTORS' PLAN OF
INDUCING ITS DEALERS TO BUY GENERAL MOTORS AUTOMOTIVE PARTS AND
ACCESSORIES.  A MAJOR GROUND USED BY THE COMMISSION IN DISTINGUISHING
THE GENERAL MOTORS CASE FROM THE TBA CASES, WAS THAT THE GENERAL MOTORS
CASE INVOLVED A PURCHASE-RESALE PLAN WHEREAS THE TBA CASES BEFORE THE
COMMISSION INVOLVE SALES-COMMISSION ARRANGEMENTS.  WHILE IT WOULD
THEREFORE SEEM TO ME ON THE CURRENT STATE OF THE RECORD THAT THE
COMMISSION HAS APPROVED PURCHASE-RESALE TBA PROMOTION BY OIL COMPANIES
WHILE CONDEMNING SIMILAR SALES-COMMISSION PROMOTIONS, AT THE VERY
LEAST, THIS IS YET ANOTHER AMBIGUITY IN THE OPINION. 

IN SHORT, THE COMMISSION OPINIONS IN THIS AND THE RELATED CASES ARE
BATHED IN CONFUSION AND LEAVE UNANSWERED A NUMBER OF QUESTIONS
NECESSARILY INVOLVED IN THE DECISION OF THESE CASES.  ARE TBA SALES
COMMISSION PLANS ONLY UNFAIR METHODS OF COMPETITION IF THE OIL COMPANY
HAS USED COERCIVE TACTICS ON ITS DEALERS?  IF THEY ARE ILLEGAL WITHOUT
PAST OR PRESENT EVIDENCE OF COERCION, ARE THEY ILLEGAL FOR OIL
COMPANIES WHICH DO NOT HAVE THE SAME RELATION WITH THEIR DEALERS AS
ATLANTIC HAS WITH ITS DEALERS?  ARE THEY ILLEGAL FOR OIL COMPANIES
WHICH DO NOT HAVE THE SAME MARKET POSITION AS ATLANTIC?  HAS THE
COMMISSION DRAWN A DISTINCTION BETWEEN SALES-COMMISSION AND PURCHASE
RESALE TBA PROMOTION PLANS, CONDEMNING THE FORMER BUT APPROVING THE
LATTER?  IF IT HAS, IS THERE A RATIONAL BASIS, CONSISTENT WITH THE
POLICIES OF SEC. 5, FOR SUCH A DISTINCTION?  ALL OF THESE QUESTIONS
APPEAR TO ME TO BE INADEQUATELY ANSWERED BY THE COMMISSION'S OPINION. 

I DO NOT MEAN TO IMPLY WHAT THE ANSWERS TO ANY OF THESE QUESTIONS
SHOULD BE.  CONGRESS HAS ENTRUSTED THE INITIAL AND PRIMARY
RESPONSIBILITY FOR ANSWERING THEM TO THE COMMISSION.  HOWEVER, AS THIS
COURT HAS RECOGNIZED, "WE MUST KNOW 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., SUPRA, AT 511.  "THE ADMINISTRATIVE
PROCESS WILL BEST BE VINDICATED BY CLARITY IN ITS EXERCISE."  PHELPS
DODGE CORP. V. LABOR BOARD, SUPRA, AT 197.  WHEN THE COMMISSION
"EXERCISES THE DISCRETION GIVEN TO IT BY CONGRESS, IT MUST 'DISCLOSE
THE BASIS OF ITS ORDER' AND 'GIVE CLEAR INDICATION THAT IT HAS PROPERLY
EXERCISED THE DISCRETION WITH WHICH CONGRESS HAS EMPOWERED IT.'"  LABOR
BOARD V. METROPOLITAN INS. CO., SUPRA, AT 443.  SEE BURLINGTON TRUCK
LINES V. UNITED STATES, SUPRA, AT 167-169.  ADMINISTRATIVE AGENCY
ACTION IS NOT TO BE SUSTAINED WHERE "ITS EXPLICATION IS  ...
INADEQUATE, IRRATIONAL OR ARBITRARY  ...  ."  LABOR BOARD V. ERIE
RESISTOR CORP., 373 U.S. 221, 236. 

MOREOVER, IF IN THESE AND THE RELATED CASES THE COMMISSION IS LAYING
DOWN THE BROAD RULE THAT ALL SALES-COMMISSION TBA PROMOTION
ARRANGEMENTS IN THE OIL INDUSTRY ARE PER SE UNFAIR METHODS OF
COMPETITION, SUCH A RULE HAS NEITHER BEEN CLEARLY ARTICULATED NOR
SUPPORTED WITH ADEQUATE ECONOMIC ANALYSIS.  IN WHITE MOTOR CO. V.
UNITED STATES, 372 U.S. 253, THIS COURT REVERSED A DISTRICT COURT THAT
HAD DEVELOPED A PER SE RULE OF ANTITRUST LIABILITY WITHOUT REGARD TO AN
ANALYSIS OF THE ECONOMICS OF THE SITUATION.  THE COURT STATED, "THIS IS
THE FIRST CASE INVOLVING A TERRITORIAL RESTRICTION IN A VERTICAL
ARRANGEMENT; AND WE KNOW TOO LITTLE OF THE ACTUAL IMPACT OF BOTH THAT
RESTRICTION AND THE ONE RESPECTING CUSTOMERS TO REACH A CONCLUSION ON
THE BARE BONES OF THE DOCUMENTARY EVIDENCE BEFORE US."  372 U.S., AT
261. 

SIMILARLY IN THIS CASE, THE COMMISSION HAS NOT PROVIDED US WITH A
FACTUAL RECORD OR ANALYSIS SUFFICIENT TO REACH THE CONCLUSION THAT
SALES-COMMISSION PLANS ARE PER SE ILLEGAL IN THE OIL INDUSTRY.  IN
CONDEMNING SUCH ARRANGEMENTS THE COMMISSION WOULD BE UPSETTING LONG
ESTABLISHED PRACTICES PREVALENT IN THE OIL INDUSTRY.  IT WOULD BE
AFFECTING THE ENTIRE OIL INDUSTRY, SMALL COMPANIES AS WELL AS LARGE,
NOT JUST THE PARTICULAR PARTIES INVOLVED IN THESE CASES.  FINALLY, IT
MUST BE REMEMBERED THAT THE COMMISSION IS AN EXPERT ADMINISTRATIVE BODY
SET UP BY CONGRESS IN ORDER TO PROVIDE ADEQUATE ECONOMIC FACT FINDING
AND ANALYSES OF COMPLICATED PROBLEMS SUCH AS THE ONES HERE PRESENTED. 
THE INTEGRITY OF THIS CONGRESSIONAL SCHEME IS VIOLATED BY THE
COMMISSION'S ENTERING AND THE COURTS' AFFIRMING BROAD INDUSTRY-WIDE
ORDERS THE MEANING AND BASES OF WHICH ARE UNCLEAR AND THE FACTUAL AND
ECONOMIC ANALYSIS OF WHICH IS INADEQUATE. 

I DO NOT MEAN BY THIS THAT THE COMMISSION IS REQUIRED TO USE A RULE
MAKING RATHER THAN A CASE-BY-CASE APPROACH TO DECISION-MAKING IN THIS
AREA, ALTHOUGH IT WOULD SEEM THAT RULE-MAKING WOULD HERE BE THE
PREFERABLE APPROACH.  CF. ELMAN, COMMENT, RULEMAKING PROCEDURES IN THE
FTC'S ENFORCEMENT OF THE MERGER LAW, 78 HARV. L. REV. 385 (1964).  THE
COMMISSION HAS THE GENERAL POWER TO CHOOSE TO PROCEED IN THIS FIELD, AS
IN OTHERS, THROUGH EITHER RULE-MAKING OR THE PROCESS OF CASE-BY-CASE
ADJUDICATION.  SEE SECURITIES COMM'N V. CHENERY CORP., SUPRA, AT 201
202; CALIFORNIA V. LO-VACA GATHERING CO., 379 U.S. 366, 371.  WHICHEVER
METHOD THE COMMISSION CHOOSES TO USE, HOWEVER, IT SEEMS OBVIOUS TO ME
THAT THE COMMISSION MUST FORMULATE A CLEAR RATIONAL RULE WHICH IS BASED
ON AN ADEQUATE ECONOMIC EXPLICATION AND TAKES INTO CONSIDERATION THE
SITUATION OF ALL INDUSTRY MEMBERS AFFECTED BY THE RULE.  SINCE ITS
FAILURE TO DO SO PRECLUDES PROPER JUDICIAL REVIEW OF THESE CASES, I
WOULD VACATE THE JUDGMENTS BELOW AND REMAND THESE CASES TO THE
COMMISSION SO THAT IT CAN, WITH CLARITY, EXERCISE THE ADMINISTRATIVE
PROCESS ENTRUSTED TO THE COMMISSION BY CONGRESS. 
..END :

















UNITED GAS IMPROVEMENT CO. V. CONTINENTAL OIL CO. 381 U.S. 392 


NO. 644.  ARGUED APRIL 28, 1965.  - DECIDED JUNE 1, 1965.* - 336 F.2D
320, REVERSED. 

*TOGETHER WITH NO. 693, FEDERAL POWER COMMISSION V. MARR ET AL., ALSO
ON CERTIORARI TO THE SAME COURT. 


TEXAS EASTERN, WHICH OPERATES AN INTERSTATE NATURAL GAS TRANSMISSION
SYSTEM, AGREED WITH CERTAIN PRODUCERS TO PURCHASE FOR RESALE IN
INTERSTATE COMMERCE THEIR NATURAL GAS PRODUCTION IN A SUBSTANTIALLY
DEVELOPED FIELD WITH PROVEN RESERVES.  BEFORE THE FEDERAL POWER
COMMISSION (FPC) ACTED ON THE EXAMINER'S RECOMMENDATION THAT
CERTIFICATES BE GRANTED, THE "CATCO" CASE (PUBLIC SERV. COMM'N OF NEW
YORK V. FPC, 257 F.2D 717, AFFIRMED SUB NOM.  ATLANTIC REFINING CO. V.
PUBLIC SERV. COMM'N OF NEW YORK, 360 U.S. 378) DECIDED THAT THE
CERTIFICATE APPLICANTS THERE INVOLVED HAD NOT SATISFIED THEIR BURDEN OF
JUSTIFYING THE NATURAL GAS SALES PRICE THEY PROPOSED, WHICH WAS LOWER
THAN WHAT TEXAS EASTERN HAD AGREED TO PAY.  THE PARTIES HERE THEN
FRAMED A NEW PLAN IN LIEU OF THE PREVIOUS CONVENTIONAL WELLHEAD
PURCHASE ARRANGEMENT BUT THE ECONOMIC EFFECT OF WHICH WAS MUCH THE
SAME.  THEY AGREED THAT TEXAS EASTERN WOULD PURCHASE THE PRODUCERS'
LEASEHOLD INTERESTS, COVERING ONLY NATURAL GAS AND CONDENSATE, IN THE
LANDS WHERE THE GAS WAS LOCATED.  THE FPC IN PROCEEDINGS REOPENED AT
TEXAS EASTERN'S REQUEST ISSUED IT A CERTIFICATE TO BUILD CONNECTING
PIPELINE FACILITIES, AND, IN CONNECTION WITH OBJECTIONS THAT THE LEASES
WERE NOT JUSTIFIED, NOTED THAT IT HAD NO AUTHORITY TO ISSUE A
CERTIFICATE AUTHORIZING THE LEASES.  SECTION 1(B) OF THE NATURAL GAS
ACT MAKES THE ACT APPLICABLE "TO THE SALE IN INTERSTATE COMMERCE OF
NATURAL GAS FOR RESALE: BUT NOT "TO THE PRODUCTION OR GATHERING OF
NATURAL GAS."  ON REVIEW OF THE FPC'S ACTION THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT SET ASIDE THE CERTIFICATE ORDER AND
REMANDED THE CASE ON THE GROUND THAT THE FPC'S OPINION APPEARED TO
APPROVE THE PRICING ASPECTS OF THE GAS LEASE ACQUISITIONS WITHOUT
EVIDENTIARY SUPPORT.  THAT THE GAS WOULD BE ACQUIRED BY LEASE
TRANSACTIONS NOT SUBJECT TO FPC REGULATION WAS UNIMPORTANT, THE COURT
THOUGHT, SINCE FPC COULD REGULATE THE PURCHASER THROUGH ITS
CERTIFICATION AUTHORITY OVER THE CONNECTING FACILITIES.  THE FPC
THEREAFTER REOPENED THE PROCEEDINGS AND, CONCLUDING THAT IT WAS NOT
FORECLOSED BY EITHER ITS PREVIOUS RULINGS OR THE COURT OF APPEALS'
MANDATE, DECIDED THAT IT HAD JURISDICTION OVER THE LEASE-SALES.  THE
FPC HELD THAT IT WOULD NOT BE IN THE PUBLIC INTEREST TO CERTIFICATE THE
TRANSACTION SINCE IT WAS NOT SATISFIED THAT THE UNIT COST OF THE GAS
WAS REASONABLE OR COULD BE ACCURATELY DETERMINED.  THE PARTIES WERE
GIVEN A PERIOD TO REFRAME THE TRANSACTION.  UNDER THE ALTERNATIVE
APPEAL ROUTE PROVIDED BY SEC. 19(B) OF THE ACT, AN APPEAL WAS TAKEN TO
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, WHICH REVERSED ON THE
GROUND THAT THE FPC HAD NO JURISDICTION OVER LEASES SINCE THEY RELATE
TO THE PRODUCTION AND GATHERING OF NATURAL GAS.  HELD: 

1.  SALES OF THE LEASEHOLD INTERESTS IN A PROVEN AND SUBSTANTIALLY
DEVELOPED NATURAL GAS FIELD ARE "SALES" OF NATURAL GAS WITHIN THE
MEANING OF SEC. 1(B) OF THE ACT.  PP. 399-401. 

(A)  THE PURPOSES OF THE ACT WOULD BE FRUSTRATED IF REGULATION
THEREUNDER WERE MADE TO DEPEND UPON TECHNICAL TITLE CONCEPTS OF LOCAL
LAW.  P. 400. 

(B)  THE DETERMINATIVE ECONOMIC FACT IS THAT THE SALE OF THE LEASES
IN A FIELD WHERE THE SUPPLY WAS PROVEN AND THE FACILITIES WERE WELL
DEVELOPED ACCOMPLISHED THE TRANSFER OF LARGE AMOUNTS OF NATURAL GAS TO
AN INTERSTATE PIPELINE FOR RESALE IN OTHER STATES.  P. 401. 

2.  A SALE OF LEASEHOLD INTERESTS IN PROVEN RESERVES FOR TRANSMISSION
AND RESALE IN INTERSTATE COMMERCE IS NOT WITHIN THE "PRODUCTION OR
GATHERING" EXEMPTION OF THE ACT; THE FACTS OF THIS CASE ARE
DISTINGUISHABLE FROM THOSE IN FPC V. PANHANDLE EASTERN PIPE LINE CO.,
337 U.S. 498, WHERE THE LEASES WERE UNDEVELOPED AND THE SALE OF THE
NATURAL GAS WAS IN INTRASTATE COMMERCE. 

3.  NEITHER THE MANDATE OF THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT NOR THE ORIGINAL FPC ORDER ESTABLISHED AS THE "LAW OF
THE CASE" THAT THE FPC LACKED JURISDICTION OVER THE LEASEHOLD
TRANSFERS.  PP. 404-406. 

(A)  THE ISSUE OF THE FPC'S JURISDICTION OVER SUCH TRANSFERS WAS NOT
BEFORE THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, WHICH
HAD HELD THAT THE FPC COULD REGULATE THE PURCHASER, REGARDLESS OF THE
STATUS OF THE SELLER.  PP. 404-405. 

(B)  ANY DOUBTS ABOUT CONSTRUCTION OF THE MANDATE OF THE INITIAL
REVIEWING COURT SHOULD BE RESOLVED IN THE FPC'S FAVOR SINCE ROUTING OF
THE APPEAL TO A DIFFERENT COURT PRECLUDES CLARIFICATION OF THE MANDATE
BY THE COURT WHICH ISSUED IT.  P. 405. 

(C)  THE FPC WAS FREE IN CONSIDERING THE QUESTION OF PRODUCTION COSTS
ON REMAND TO RECONSIDER ITS INITIAL ERRONEOUS POSITION ON THE
JURISDICTIONAL QUESTION.  FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE
BROADCASTING CO., 309 U.S. 134, 145, FOLLOWED.  P. 406. 

UNITED GAS IMPROVEMENT CO. V. CONTINENTAL OIL CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672, THE COURT HELD
THAT FEDERAL POWER COMMISSION JURISDICTION UNDER THE NATURAL GAS ACT,
AS AMENDED, 52 STAT. 821, 15 U.S.C. SEC.  717 ET SEQ. (1964 ED.),
EXTENDED TO WHAT ARE DESCRIBED COLLOQUIALLY AND PERHAPS SOMEWHAT
LOOSELY AS "WELLHEAD" SALES OF NATURAL GAS BY PRODUCERS TO INTERSTATE
PIPELINE COMPANIES FOR RESALE IN INTERSTATE COMMERCE.  THE ISSUE IN THE
PRESENT CASES IS WHETHER SALES TO AN INTERSTATE PIPELINE COMPANY OF
LEASES COVERING PROVEN AND SUBSTANTIALLY DEVELOPED RESERVES OF GAS TO
BE SOLD IN INTERSTATE COMMERCE ARE ALSO SUBJECT TO COMMISSION
JURISDICTION.  WE HOLD THAT THEY ARE. 

            I. 

IN 1957, TEXAS EASTERN, A NATURAL GAS COMPANY WHICH OWNS AND OPERATES
AN INTERSTATE TRANSMISSION SYSTEM EXTENDING FROM TEXAS TO THE
PHILADELPHIA-NEWARK AREA, EXECUTED GAS PURCHASE CONTRACTS WITH
CONTINENTAL OIL COMPANY, M.H. MARR, SUN OIL COMPANY, AND GENERAL CRUDE
OIL COMPANY, TO PURCHASE THEIR NATURAL GAS PRODUCTION IN RAYNE FIELD,
LOUISIANA, AT AN INITIAL PRICE OF 23.9 CENTS PER MCF.  (FN1)  THE
PRODUCERS APPLIED TO THE COMMISSION FOR CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY AUTHORIZING THEM TO SELL THEIR GAS TO TEXAS
EASTERN.  TEXAS EASTERN APPLIED FOR A CERTIFICATE PERMITTING IT TO
BUILD NEW PIPELINE FACILITIES TO CONNECT ITS SYSTEM TO RAYNE FIELD. 
AFTER A HEARING, AND IN SPITE OF OBJECTIONS BY SEVERAL INTERVENORS TO
THE 23.9 CENTS PRICE, THE EXAMINER ISSUED A DECISION RECOMMENDING A
GRANT OF THE REQUESTED CERTIFICATES.  HOWEVER, BEFORE THE COMMISSION
ACTED ON THE EXAMINER'S DECISION, THE COURT OF APPEALS FOR THE THIRD
CIRCUIT HANDED DOWN ITS DECISION IN PUBLIC SERV. COMM'N OF NEW YORK V.
FPC, 257 F.2D 717 (FN2) (THE "CATCO" CASE), REVERSING AN ORDER OF THE
COMMISSION GRANTING UNCONDITIONAL CERTIFICATES FOR SALES OF NATURAL GAS
ON THE GROUND THAT THE CERTIFICATE APPLICANTS HAD THE BURDEN OF SHOWING
THAT THE PROPOSED SALE PRICE OF 22.4 CENTS WAS JUSTIFIED BY PUBLIC
CONVENIENCE AND NECESSITY, AND THAT THE BURDEN HAD NOT BEEN SUSTAINED. 
THEREAFTER THE PRODUCERS IN THE PRESENT CASE REQUESTED THE COMMISSION
TO PERMIT WITHDRAWAL OF THEIR APPLICATIONS FOR SALES TO TEXAS EASTERN
AT 23.9 CENTS (1.5 CENTS HIGHER THAN THE CATCO PRICE) AND CANCELED THE
SALES CONTRACTS.  THE PARTIES THEN AGREED ON A DIFFERENT METHOD FOR
ACHIEVING THEIR OBJECTIVES. 

UNDER THE NEW PLAN FORMULATED BY THE PARTIES, TEXAS EASTERN, INSTEAD
OF MAKING CONVENTIONAL WELLHEAD PURCHASES OF NATURAL GAS, PROPOSED TO
BUY THE PRODUCERS' LEASEHOLD INTERESTS IN THE RAYNE FIELD LANDS IN
WHICH THE NATURAL GAS WAS LOCATED.  THE PROVISIONS OF THE LEASE-SALE
AGREEMENTS WERE SUCH THAT THEY WERE VERY CLOSE IN ECONOMIC EFFECT TO
CONVENTIONAL SALES OF NATURAL GAS.  THE GAS RESERVES IN RAYNE FIELD
WERE PROVEN, AND THE FIELD SUBSTANTIALLY DEVELOPED.  (FN3)  TEXAS
EASTERN WAS STILL TO BUILD THE CONNECTING FACILITIES TO THE FIELD WHICH
HAD BEEN CALLED FOR UNDER THE ORIGINAL PLAN, AND THE SAME VOLUMES OF
GAS WERE TO FLOW INTO ITS SYSTEM.  THE LEASE-SALES WERE TO COVER NO
MINERALS EXCEPT NATURAL GAS AND CONDENSATE, ALL OTHER MINERAL RIGHTS
BEING RESERVED TO THE LEASE-SELLERS, AND BY A MANAGEMENT AGREEMENT
CONTINENTAL OIL, ONE OF THE SELLERS, WAS TO CONTINUE TO DO THE BULK OF
PRODUCTION WORK.  (FN4)  PAYMENTS ON THE PURCHASE PRICE COULD BE
ACCELERATED IF GAS PRODUCTION EXCEEDED A SPECIFIED AMOUNT, AND THE
LEASES WERE PURCHASED THROUGH AN INTERMEDIATE CORPORATION SO THAT TEXAS
EASTERN'S LIABILITY WOULD BE SUBSTANTIALLY LIMITED IF PRODUCTION FROM
THE FIELD FELL BELOW EXPECTATIONS.  (FN5)  COMPLETION OF THE TRANSFERS
WAS CONDITIONED UPON ISSUANCE OF THE NECESSARY CERTIFICATES BY THE
COMMISSION. 

THE COMMISSION GRANTED TEXAS EASTERN'S REQUEST TO REOPEN THE
PROCEEDINGS IN ORDER TO CONSIDER THE LEASE-SALE PLAN, AND ISSUED AN
UNCONDITIONAL CERTIFICATE TO TEXAS EASTERN PERMITTING IT TO BUILD THE
PIPELINE FACILITIES NECESSARY TO CONNECT WITH RAYNE FIELD.  IN ISSUING
THE CERTIFICATE THE COMMISSION OVERRULED OBJECTIONS MADE BY THE NEW
YORK PUBLIC SERVICE COMMISSION THAT THE PRICES PAID FOR THE LEASES WERE
NOT JUSTIFIED, AND NOTED THAT "TEXAS EASTERN HAS NOT FILED AN
APPLICATION FOR A CERTIFICATE AUTHORIZING THE ACQUISITION OF THE RAYNE
FIELD LEASES AND WE HAVE NO AUTHORITY TO ISSUE SUCH A CERTIFICATE."  21
F.P.C.  860, 864. 

SOON THEREAFTER THE LEASE-SALE TRANSACTIONS WERE COMPLETED AND TEXAS
EASTERN BEGAN TO RECEIVE GAS FROM RAYNE FIELD FOR INTERSTATE
DISTRIBUTION.  HOWEVER, ON REVIEW OF THE COMMISSION'S ACTION THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SET ASIDE THE
CERTIFICATE ORDER BECAUSE THE LANGUAGE AND TENOR OF THE COMMISSION'S
OPINION APPEARED TO APPROVE THE PRICES PAID FOR THE LEASES UNDER THE
ACQUISITION AGREEMENT.  PUBLIC SERV. COMM'N OF NEW YORK V. FPC, 109
U.S. APP. D.C. 289, 287 F.2D 143.  THE COURT THOUGHT IT OF "NO
IMPORTANCE HERE THAT THE TRANSACTIONS BY WHICH TEXAS EASTERN PROPOSES
TO ACQUIRE THE GAS WILL THEMSELVES BE, BY VIRTUE OF A CHANGE IN FORM,
BEYOND THE REGULATORY CONTROL OF THE COMMISSION," ID., AT 292, 287
F.2D, AT 146, SINCE THE COMMISSION COULD REGULATE TEXAS EASTERN THROUGH
ITS CERTIFICATION AUTHORITY OVER THE CONNECTING FACILITIES REGARDLESS
OF ITS JURISDICTION OVER THE LEASE-SALE TRANSACTIONS THEMSELVES.  THE
COURT THEREFORE REMANDED, STATING THAT: 

"TWO COURSES ARE OPEN TO THE COMMISSION.  IT MAY, BY CLARIFICATION OF
THE ORDER PRESENTLY UNDER REVIEW, EXPRESSLY DISCLAIM ANY APPROVAL OF
THE PRICE TO BE PAID FOR NATURAL GAS BY THE APPLICANT ...  .  OR IT MAY
REOPEN THE RECORD IN THE CERTIFICATE PROCEEDING TO PERMIT TEXAS EASTERN
TO ESTABLISH BY ADEQUATE EVIDENCE THAT THE ACQUISITION COSTS WHICH IT
PROPOSES TO INCUR WILL BE CONSISTENT WITH THE PUBLIC CONVENIENCE AND
NECESSITY."  IBID. 

THE COMMISSION CHOSE TO REOPEN THE PROCEEDINGS.  AFTER HEARINGS BEFORE
AN EXAMINER, IT DECIDED THAT THE QUESTION OF ITS JURISDICTION OVER THE
LEASE-SALES THEMSELVES, AS OPPOSED TO AUTHORITY OVER TEXAS EASTERN'S
CONNECTING FACILITIES, WERE NOT FORECLOSED EITHER BY PREVIOUS
COMMISSION RULINGS OR THE MANDATE OF THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.  ON THE MERITS, IT DECIDED THAT A HOLDING
THAT IT HAD NO JURISDICTION TO INQUIRE INTO PRODUCTION COSTS BECAUSE
THE TRANSACTION WAS CAST AS A SALE OF LEASES INSTEAD OF A SALE OF
NATURAL GAS "WOULD EXALT FORM OVER SUBSTANCE, WOULD GIVE GREATER WEIGHT
TO THE TECHNICALITIES OF CONTRACT DRAFTSMANSHIP THAN TO THE ACHIEVEMENT
OF THE PURPOSES OF THE NATURAL GAS ACT, AND WOULD IMPAIR OUR ABILITY TO
CONTROL THE PRICE RECEIVED FOR GAS SOLD TO THE PIPELINES IN INTERSTATE
COMMERCE TO THE DETRIMENT OF THE ULTIMATE CONSUMER."  29 F.P.C. 249,
256. 

AFTER ASSERTING JURISDICTION OVER THE LEASE-SALES, THE COMMISSION
CONCLUDED THAT IT WOULD NOT BE IN THE PUBLIC INTEREST TO CERTIFICATE
THEM.  REASONING THAT THE TRANSACTION WAS NOT SUBJECT TO EFFECTIVE
REGULATION BECAUSE OF THE DIFFICULTY OF ESTIMATING THE UNIT PRICE PAID
FOR THE GAS AND THE IMPOSSIBILITY OF PROVIDING CONTINUING PRICE
REGULATION BECAUSE OF THE ONE-SHOT NATURE OF THE SALE, IT ORDERED THAT
THE PARTIES BE GIVEN A SIX-MONTH PERIOD IN WHICH TO REFRAME THE
TRANSACTION SO AS TO RECTIFY THESE ALLEGED INFIRMITIES. 

APPEAL WAS TAKEN, NOT TO THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT, BUT TO THE FIFTH CIRCUIT PURSUANT TO THE ALTERNATIVE
ROUTES OF APPEAL PROVIDED BY SEC. 19(B) OF THE ACT.  (FN6)  THAT COURT
REVERSED.  IT INTERPRETED THIS COURT'S DECISION IN FPC V. PANHANDLE
EASTERN PIPE LINE CO., 337 U.S. 498, AS HOLDING THAT LEASES SUCH AS
THOSE HERE INVOLVED "RELATE TO THE PRODUCTION OR GATHERING OF NATURAL
GAS AND ARE THUS OUTSIDE COMMISSION JURISDICTION  ...  ."  336 F.2D
320, 325.  UNDER THIS VIEW, IT WAS UNNECESSARY FOR THE COURT TO DECIDE
WHETHER THE EARLIER DECISION OF THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT HAD ESTABLISHED "THE LAW OF THE CASE" ON THE
JURISDICTIONAL QUESTION.  WE GRANTED CERTIORARI, 379 U.S. 958, BECAUSE
OF THE IMPORTANCE OF THE ISSUE TO THE PROPER ADMINISTRATION OF THE
NATURAL GAS ACT.  IT SHOULD BE NOTED THAT NO QUESTIONS ARE BEFORE US
RELATING TO THE PROPRIETY OF THE COMMISSION'S DISPOSITION OF THE CASE
FOLLOWING ITS ASSERTION OF JURISDICTION.  IT IS ONLY THE JURISDICTIONAL
QUESTION WHICH WE MUST ANSWER.  WE REVERSE. 

                                             II. 

THE ACT SHALL APPLY  ...  TO THE SALE IN INTERSTATE COMMERCE OF NATURAL
GAS FOR RESALE  ...  BUT SHALL NOT APPLY  ...  TO THE PRODUCTION OR
GATHERING OF NATURAL GAS."  52 STAT. 821, 15 U.S.C. SEC. 717(B) (1964
ED.). 

WITHOUT IMPUGNING IN ANY WAY THE GOOD FAITH AND GENUINENESS OF THE
TRANSACTIONS, WE THINK IT CLEAR THAT THE LEASE-SALES HERE IN QUESTION
CAN NONETHELESS BE CONSIDERED "SALES" OF NATURAL GAS IN INTERSTATE
COMMERCE FOR PURPOSES OF THE ACT.  A REGULATORY STATUTE SUCH AS THE
NATURAL GAS ACT WOULD BE HAMSTRUNG IF IT WERE TIED DOWN TO TECHNICAL
CONCEPTS OF LOCAL LAW.  (FN7)  THE COURT RECOGNIZED AS MUCH IN LABOR
BOARD V. HEARST PUBLICATIONS, INC., 322 U.S. 111, WHEN IT HELD THAT
"EMPLOYEE" AS USED IN THE NATIONAL LABOR RELATIONS ACT WAS TO BE
DEFINED BY REFERENCE "TO THE PURPOSE OF THE ACT AND THE FACTS INVOLVED
IN THE ECONOMIC RELATIONSHIP" (ID., AT 129) RATHER THAN EXCLUSIVELY BY
REFERENCE TO COMMON LAW STANDARDS OR LOCAL LAW.  GRAY V. POWELL, 314
U.S. 402, DECIDED UNDER THE BITUMINOUS COAL ACT OF 1937, IS ALSO
CLOSELY ANALOGOUS TO THIS PHASE OF THE CASES AT BAR.  THE ACT PROVIDED
FOR ESTABLISHMENT OF MINIMUM AND MAXIMUM PRICES FOR SOFT COAL, AND
SPECIFIED THAT "THE SALE OR DELIVERY OR OFFER FOR SALE OF COAL AT A
PRICE BELOW SUCH MINIMUM OR ABOVE SUCH MAXIMUM SHALL CONSTITUTE A
VIOLATION OF THE CODE  ...  ."  50 STAT. 80.  A LARGE COAL CONSUMER
LEASED COAL LANDS ON WHICH ESTABLISHED MINE FACILITIES WERE LOCATED,
AND ENTERED INTO MANAGEMENT AGREEMENTS WITH A CONTRACTOR TO WHOM THE
LANDOWNERS HAD LEASED THE MINE FACILITIES.  IT THEN CLAIMED THAT THE
COAL IT HAD THUS OBTAINED WAS NOT SUBJECT TO THE ACT BECAUSE THERE HAD
BEEN NO "SALE OR DELIVERY OR OFFER FOR SALE" BY THE PRODUCERS, BUT ONLY
THE SALE OF LEASES IN THE COAL LANDS.  THE COURT REJECTED THIS CLAIM,
STATING THAT "THE PURPOSE OF CONGRESS, WHICH WAS TO STABILIZE THE
INDUSTRY THROUGH PRICE REGULATION, WOULD BE HAMPERED BY AN
INTERPRETATION THAT REQUIRED A TRANSFER OF TITLE, IN THE TECHNICAL
SENSE, TO BRING A PRODUCER'S COAL, CONSUMED BY ANOTHER PARTY WITHIN THE
AMBIT OF THE COAL CODE."  314 U.S., AT 416. 

THE IMPLICATIONS OF THE HEARST AND GRAY V. POWELL APPROACHES FOR THE
CASES AT HAND ARE MANIFEST.  THE SALES OF LEASES HERE INVOLVED WERE, IN
MOST RESPECTS, EQUIVALENT TO CONVENTIONAL SALES OF NATURAL GAS WHICH
UNQUESTIONABLY WOULD BE SUBJECT TO COMMISSION JURISDICTION UNDER
PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672.  INDEED, THE CONTEXT
OF THIS CASE SHOWS THAT WHEN THE FIRST PLAN WAS ABORTED BY THE CATCO
CASE, THE PARTIES DID NOT ALTER THEIR OBJECTIVES, BUT MERELY THE METHOD
OF ATTAINING THEM.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT DESCRIBED THE LEASE-SALE PLAN AS A "CHANGE IN FORM."  THERE ARE
DIFFERENCES, TO BE SURE, BETWEEN THE ORIGINAL SALE AGREEMENTS AND THE
LEASE-SALE PLAN.  FOR EXAMPLE, TEXAS EASTERN HAS THE POWER TO MAKE THE
MAJOR DECISIONS CONTROLLING FURTHER DEVELOPMENT OF THE FIELD, AND WE
ARE TOLD THAT THE LEASE-SALES WILL NOT TRIGGER "FAVORED NATION" CLAUSES
IN OTHER GAS CONTRACTS.  BUT IT IS PERFECTLY CLEAR THAT THE SALES OF
THESE LEASES IN RAYNE FIELD, A PROVEN AND SUBSTANTIALLY DEVELOPED
FIELD, ACCOMPLISHED THE TRANSFER OF LARGE AMOUNTS OF NATURAL GAS TO AN
INTERSTATE PIPELINE COMPANY FOR RESALE IN OTHER STATES.  THAT IS THE
SIGNIFICANT AND DETERMINATIVE ECONOMIC FACT.  TO IGNORE IT WOULD
SUBSTANTIALLY UNDERCUT PHILLIPS, AND BECAUSE OF IT THE COMMISSION
(UNLESS FORECLOSED, INFRA, PP. 404-406) ACTED PROPERLY IN TREATING
THESE SALES OF LEASEHOLD INTERESTS AS SALES OF NATURAL GAS WITHIN THE
MEANING OF THE NATURAL GAS ACT. 

WE TURN THEN TO THE QUESTION WHETHER THESE LEASE-SALES, EVEN THOUGH
SALES OF NATURAL GAS WITHIN THE MEANING OF THE ACT, ARE NONETHELESS
OUTSIDE COMMISSION JURISDICTION BECAUSE OF THE EXEMPTION FOR
"PRODUCTION OR GATHERING." 

THE STATEMENT IN PHILLIPS THAT "PRODUCTION AND GATHERING, IN THE
SENSE THAT THOSE TERMS ARE USED IN SEC. 1(B), ENDED BEFORE THE SALES BY
PHILLIPS OCCURRED" (347 U.S., AT 678), COULD BE READ TO TURN THE
"PRODUCTION OR GATHERING" EXEMPTION PURELY ON A MATTER OF THE TIMING OF
THE TITLE TRANSFER.  THAT WOULD MEAN, OF COURSE, THAT THE LEASE-SALES
HERE INVOLVED WERE WITHIN THE PRODUCTION OR GATHERING EXEMPTION, FOR AT
THE TIME OF THE TRANSFER THE GAS WAS STILL IN THE GROUND.  THE SAME
WOULD BE TRUE FOR ANY SALE OF GAS IN PLACE.  ACCEPTANCE OF ANY SUCH
NARROW INTERPRETATION WOULD MAKE PHILLIPS A SHADOW.  ITS SUBSTANCE
LIES, INSTEAD, IN THE JUDGMENT THAT "PROTECTION OF CONSUMERS AGAINST
EXPLOITATION AT THE HANDS OF NATURAL-GAS COMPANIES WAS THE PRIMARY AIM
OF THE NATURAL GAS ACT," ID., AT 685, AND "CONGRESSIONAL INTENT WAS TO
GIVE THE COMMISSION JURISDICTION OVER THE RATES OF ALL WHOLESALES OF
NATURAL GAS IN INTERSTATE COMMERCE."  ID., AT 682.  WE HAVE NOT LIMITED
PHILLIPS TO A MATTER OF THE TIMING OF THE TRANSACTION, SEE CITIES
SERVICE GAS CO., V. STATE CORP. COMM'N OF KANSAS, 355 U.S. 391,
REVERSING, PER CURIAM, 180 KAN. 454, 304 P.2D 528, AND CONSIDER THAT IT
WOULD BE A MISTAKE TO DO SO.    WE CONCLUDE THAT EVEN THOUGH A SALE OF
NATURAL GAS IN INTERSTATE COMMERCE OCCURS BEFORE PRODUCTION OR
GATHERING IS ENDED, IT IS NONETHELESS SUBJECT TO REGULATION.  IN THE
CONTEXT OF SUCH A SALE, AS DISTINGUISHED FROM THE SITUATION IN FPC V.
PANHANDLE EASTERN PIPE LINE CO., 337 U.S. 498, TO BE DISCUSSED
HEREAFTER, THE "PRODUCTION OR GATHERING" EXEMPTION RELATES TO THE
PHYSICAL ACTIVITIES, PROCESSES AND FACILITIES OF PRODUCTION OR
GATHERING, BUT NOT TO SALES OF THE KIND AFFIRMATIVELY SUBJECTED TO
COMMISSION JURISDICTION.  THIS ACCOMMODATION OF THE TWO RELEVANT
CLAUSES OF SEC. 1(B) GIVES CONTENT TO THE NATIONAL OBJECTIVES OF THE
NATURAL GAS ACT AS EXPOUNDED IN PHILLIPS, AND TO THE COMMISSION'S
JURISDICTION TO ACCOMPLISH THEM, WHILE IN NO WAY INTERFERING WITH STATE
REGULATORY POWER OVER THE PHYSICAL PROCESSES OF PRODUCTION OR GATHERING
IN FURTHERANCE OF CONSERVATION OR OTHER LEGITIMATE STATE CONCERNS. 

RESPONDENTS ARGUE THAT THE COURT'S DECISION IN FPC V. PANHANDLE
EASTERN PIPE LINE CO., SUPRA, PRECLUDES THIS RESULT.  IN PANHANDLE AN
INTERSTATE PIPELINE COMPANY TRANSFERRED UNDEVELOPED LEASES TO A
PRODUCTION COMPANY.  THE GOVERNMENT ASSERTED THAT COMMISSION
JURISDICTION SHOULD ATTACH BECAUSE THE GAS RESERVES COVERED BY THE
LEASES HAD BEEN INCLUDED IN THE INTERSTATE COMPANY'S RATE BASE
COMPUTATION AND BECAUSE THE LESSENING OF ITS NATURAL GAS RESERVES MIGHT
AFFECT THE PIPELINE COMPANY'S ABILITY TO PERFORM ADEQUATELY THE
OBLIGATIONS FOR WHICH IT HAD BEEN CERTIFICATED.  THIS COURT DISAGREED,
HOLDING THAT THE DISPOSITION OF UNDEVELOPED LEASES WAS ENCOMPASSED BY
THE PRODUCTION OR GATHERING EXEMPTION. 

TWO DISTINCTIONS BETWEEN PANHANDLE AND THE PRESENT CASE ARE
APPARENT.  FIRST, THE PANHANDLE LEASES WERE UNDEVELOPED.  THE RAYNE
FIELD LEASEHOLDS WERE SUBSTANTIALLY DEVELOPED.  (FN8)  NATURAL GAS
WOULD AND DID BEGIN TO FLOW INTO THE TEXAS EASTERN SYSTEM IMMEDIATELY
UPON COMPLETION OF ITS CONNECTION WITH THE FIELD.  THE SUBSTANTIALITY
OF DEVELOPMENT IS A RELEVANT CONSIDERATION, FOR THE MORE THAT MUST BE
DONE BEFORE THE GAS BEGINS ITS INTERSTATE JOURNEY, THE LESS THE
TRANSACTION RESEMBLES THE CONVENTIONAL WELL-HEAD SALE OF NATURAL GAS IN
INTERSTATE COMMERCE WHICH, AS PHILLIPS HELD, THE ACT HAS AFFIRMATIVELY
PLACED WITHIN COMMISSION JURISDICTION.  SECOND, PANHANDLE DID NOT
INVOLVE A SALE OF NATURAL GAS FOR RESALE IN INTERSTATE COMMERCE, BUT A
TRANSFER BY AN INTERSTATE TRANSMISSION COMPANY TO A PRODUCTION COMPANY
FOR SALE OF THE GAS IN INTRASTATE COMMERCE.  HENCE, THE PANHANDLE COURT
DID NOT HAVE BEFORE IT THE PRESENT PROBLEM - WHETHER THE TRANSFER TO AN
INTERSTATE PIPELINE COMPANY FOR TRANSMISSION AND RESALE IN INTERSTATE
COMMERCE OF PROVEN AND SUBSTANTIALLY DEVELOPED GAS RESERVES IS SUBJECT
TO COMMISSION JURISDICTION.  THIS WAS LARGELY THE PROBLEM WHICH THE
COURT LATER FACED IN PHILLIPS AND RESOLVED IN FAVOR OF JURISDICTION. 

THE LANGUAGE OF PANHANDLE IS UNQUESTIONABLY BROAD.  BUT FLAT
STATEMENTS SUCH AS "OF COURSE LEASES ARE AN ESSENTIAL PART OF
PRODUCTION," 337 U.S., AT 505, SHOULD NOT BE TAKEN TO COVER MORE THAN
THE PARTICULAR KIND OF LEASES THAT WERE BEFORE THE COURT; IT SHOULD NOT
BE CONSIDERED AS EMBRACING EACH AND EVERY TRANSFER THAT CAN BE PUT IN
LEASE FORM.  CONCEPTS OF STARE DECISIS IN STATUTORY INTERPRETATION
APPLY TO THE HOLDINGS WITH WHICH THE CASE-BY-CASE METHOD OF DECISION
SURROUNDS A STATUTE.  TO RECOGNIZE NO DIFFERENCES BETWEEN THE PANHANDLE
TRANSFERS AND THOSE IN ISSUE HERE, AND IN THE NAME OF STARE DECISIS TO
HOLD THAT COMMISSION JURISDICTION DEPENDS ON THE FORM RATHER THAN THE
SUBSTANCE OF THE TRANSACTION, WOULD TURN THE CASE-BY-CASE PROCESS
AGAINST ITSELF. 

                         III. 

BECAUSE WE DIFFER WITH THE COURT BELOW ON THE JURISDICTIONAL ISSUE,
IT IS NECESSARY FOR US TO REACH THE QUESTION WHICH THE FIFTH CIRCUIT
DID NOT DECIDE - WHETHER THE MANDATE OF THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT OR THE PRIOR RULING OF THE COMMISSION
ESTABLISHED THE LAW OF THE CASE. 

THE ORIGINAL COMMISSION ORDER GRANTING TEXAS EASTERN A CERTIFICATE TO
CONSTRUCT ITS CONNECTING FACILITIES PROCEEDED ON THE BASIS THAT THE
COMMISSION LACKED AUTHORITY TO CERTIFICATE THE LEASEHOLD TRANSFERS. 
THAT QUESTION WAS NOT PUT IN ISSUE BEFORE THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.  THE OPINION ASSUMED ITS CORRECTNESS WITH
THE SINGLE STATEMENT, CITING PANHANDLE, THAT "THE COMMISSION HAS BEEN
HELD TO LACK JURISDICTION OVER GAS LEASES," 109 U.S. APP. D.C., AT 291,
287 F.2D, AT 145, AND CONCLUDED THAT "THE RELEVANCE OF TEXAS EASTERN'S
ACQUISITION COSTS TO THESE MATTERS IS UNAFFECTED BY THE FORM OF THE
TRANSACTION; THE COMMISSION'S WARRANT TO INQUIRE ARISES BY VIRTUE OF
ITS RESPONSIBILITY TO REGULATE THE PURCHASER, REGARDLESS OF THE STATUS
OF THE SELLER."  ID., AT 292, 287 F.2D, AT 146.  ON REMAND, THE
COMMISSION STATED THAT IN ITS PREVIOUS DECISION IT HAD "MERELY NOTED
WITHOUT DISCUSSION THAT WE HAD NO AUTHORITY TO ISSUE A CERTIFICATE FOR
THE ACQUISITION OF THE LEASES  ...  .  IT IS APPARENT THE ISSUE WAS
HARDLY CONSIDERED IN THE EARLIER PHASE OF THIS PROCEEDING."  29 F.P.C.
249, 253.  IN EXERCISING THE WARRANT TO INQUIRE, THE COMMISSION BECAME
AWARE OF THE DIFFICULTIES OF INQUIRING INTO THE REASONABLENESS OF THE
ACQUISITION PRICES WITHOUT HAVING JURISDICTION OVER THE TRANSFERS, AND
AS A RESULT, RECONSIDERED THE JURISDICTIONAL QUESTION. 

WE DO NOT THINK THAT EITHER THE PRIOR COMMISSION DECISION OR THE
INITIAL OPINION ON REVIEW FORECLOSED THAT POSSIBILITY.  IT IS EXTREMELY
DOUBTFUL THAT CERTIORARI WOULD HAVE BEEN APPROPRIATE FROM THE DECISION
WHICH THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
ALLEGEDLY MADE ON THE JURISDICTIONAL QUESTION, WITH THE RESULT THAT
REVIEW BY THIS COURT WOULD BE PRECLUDED ON THIS BASIC QUESTION OF
COMMISSION JURISDICTION.  FURTHERMORE, IN LIGHT OF THE FACT THAT THIS
CASE FOLLOWED TWO DIFFERENT ROUTES OF APPEAL, (FN9) THUS ELIMINATING
THE POSSIBILITY THAT THE INITIAL REVIEWING COURT WOULD CLARIFY THE
EXTENT OF ITS MANDATE, COMPARE COLGATE-PALMOLIVE CO. V. FTC, 326 F.2D
517, IT IS APPROPRIATE TO RESOLVE DOUBTS ABOUT THE CONSTRUCTION OF THE
INITIAL MANDATE IN THE COMMISSION'S FAVOR. 

WE BELIEVE THAT THE COMMISSION'S DECISION TO RECONSIDER THE
JURISDICTIONAL ISSUE WAS CONSISTENT WITH A DECISION TO INQUIRE INTO THE
ACQUISITION COSTS.  "ON REVIEW THE COURT MAY THUS CORRECT ERRORS OF LAW
AND ON REMAND THE COMMISSION IS BOUND TO ACT UPON THE CORRECTION  ...
.  BUT AN ADMINISTRATIVE DETERMINATION IN WHICH IS IMBEDDED A LEGAL
QUESTION OPEN TO JUDICIAL REVIEW DOES NOT IMPLIEDLY FORECLOSE THE
ADMINISTRATIVE AGENCY, AFTER ITS ERROR HAS BEEN CORRECTED, FROM
ENFORCING THE LEGISLATIVE POLICY COMMITTED TO ITS CHARGE."  FEDERAL
COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S. 134,
145.  REVERSED. 

FN1  THE PRICE INCLUDED 1.3 CENTS PER MCF.  FOR REIMBURSEMENT OF
STATE TAXES. 

FN2  AFFIRMED SUB NOM. ATLANTIC REFINING CO. V. PUBLIC SERV. COMM'N
OF NEW YORK, 360 U.S. 378. 

FN3  NINETEEN WELLS WERE IN THE GROUND; RESPONDENTS STATE THAT SEVEN
MORE WERE TO BE DRILLED. 

FN4  TEXAS EASTERN HAD THE RIGHT TO MAKE MAJOR PRODUCTION DECISIONS
SUCH AS WHAT VOLUME OF GAS TO NOMINATE FOR PRODUCTION EACH MONTH AND
WHETHER NEW WELLS SHOULD BE DRILLED. 

FN5  THE COMMISSION FOUND: 

"(1)  ONLY GAS IN PARTICULAR STRATA IS CONVEYED; AND THE PRODUCERS
RETAIN THEIR INTEREST IN OIL AND OTHER MINERALS: 

"(2)  IN EFFECT THE TRANSACTION IS FOR THE SALE OF STRIPPED GAS
INASMUCH AS THE PRODUCERS ARE TO RECEIVE A PRODUCTION PAYMENT FROM
TEXAS EASTERN FROM THE SALE OF NATURAL GAS LIQUIDS: 

"(3)  WHILE THE PAYMENT FOR THE LEASES IS REPRESENTED BY NOTES AND
SPREAD OVER A 16-YEAR PERIOD, THE NOTES HAVE AN ACCELERATION CLAUSE BY
WHICH PAYMENT IS ACCELERATED IF PRODUCTION IS INCREASED, SO THAT TEXAS
EASTERN'S PAYMENTS WOULD BE GEARED TO PRODUCTION: 

"(4)  BY A MANAGEMENT AGREEMENT DATED JULY 27, 1959, CONTINENTAL
AGREES TO OPERATE THE FIELD, INCLUDING DRILLING WELLS AND MANAGING ALL
WELLS AND EQUIPMENT, AND TO DELIVER TO TEXAS EASTERN SPECIFIED MINIMUM
DAILY QUANTITIES OF GAS; TEXAS EASTERN WILL REIMBURSE CONTINENTAL FOR
ITS EXPENSES IN OPERATING THE FIELD BUT THE ASSIGNMENT OF THE LEASES
SHOWS THAT THE COSTS OF OPERATING THE LEASES WILL BE DEFRAYED OUT OF
THE PRODUCTION PAYMENTS TO WHICH CONTINENTAL IS ENTITLED: 

"(5)  IT IS LOUISIANA GAS (THE INTERMEDIARY CORPORATION), NOT TEXAS
EASTERN WHICH IS LIABLE ON THE NOTES TO THE PRODUCERS, SO THAT THE TRUE
PURCHASER OF THE GAS IS NOT BOUND BY THE PRINCIPAL OBLIGATION OF THE
LEASE SALE TRANSACTION."  29 F.P.C. 249, 254. 

FN6  52 STAT. 831, 15 U.S.C. SEC. 717RB) (1964 ED.).  IT PROVIDES: 

"ANY PARTY TO A PROCEEDING UNDER THIS ACT AGGRIEVED BY AN ORDER
ISSUED BY THE COMMISSION IN SUCH PROCEEDING MAY OBTAIN A REVIEW OF SUCH
ORDER IN THE COURT OF APPEALS OF THE UNITED STATES FOR ANY CIRCUIT
WHEREIN THE NATURAL-GAS COMPANY TO WHICH THE ORDER RELATES IS LOCATED
OR HAS ITS PRINCIPAL PLACE OF BUSINESS, OR IN THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA  ...  ." 

FN7  RESPONDENTS POINT TO LOUISIANA LAW WHICH DOES NOT RECOGNIZE A
SALE OF GAS IN PLACE.  FROST-JOHNSON LUMBER CO. V. SALLING'S HEIRS, 150
LA. 756, 91 SO. 207; LA. REV. STAT. TIT.  9, SEC. 1105 (1962 CUM.
SUPP.); LA. CODE OF CIV. PROC., ART. 3664.  OTHER PRODUCING STATES,
INCLUDING TEXAS AND KANSAS, DO RECOGNIZE OWNERSHIP OF GAS IN PLACE.  1
WILLIAMS AND MEYERS, OIL AND GAS LAW, PP. 26-47 (1962 ED., AND 1963
CUM. SUPP.). 

FN8  SEE N. 3, SUPRA. 

FN9  SEE N. 6, SUPRA. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHILE I DISSENTED IN FEDERAL POWER COMM'N V. PANHANDLE EASTERN PIPE
LINE CO., 337 U.S. 498, IT IS NOT CONCEIVABLE TO ME THAT THE MAJORITY
THAT MADE UP THE COURT IN THAT CASE WOULD ADHERE TO WHAT IS DONE
TODAY.  THAT WOULD BE IRRELEVANT IF WE DEALT WITH A CONSTITUTIONAL
MATTER, AS ISSUES OF THAT MAGNITUDE ARE ALWAYS OPEN FOR RE
EXAMINATION.  BUT SINCE WE DEAL WITH THE VAGARIES OF A STATUTE WITH NO
CONSTITUTIONAL OVERTONES, I THINK THE MATTER SHOULD BE LEFT WHERE
PANHANDLE EASTERN PIPE LINE LEFT IT, SAVING FOR THE CONGRESS, OF
COURSE, THE POWER TO EXPAND THE REGIME OF THE FEDERAL BUREAUCRACY IF IT
DESIRES.  IT IS SOMETIMES CUSTOMARY FOR A COURT TO DISTINGUISH
PRECEDENTS TO THE VANISHING POINT, CREATING AN ILLUSION OF CERTAINTY IN
THE LAW WHILE LEAVING ONLY A SHADOW OF AN ANCIENT LANDMARK.  THAT IS
WITHIN THE JUDICIAL COMPETENCE AND HAS BEEN DONE BEFORE.  BUT WHERE THE
ISSUE HAS BEEN SO HOTLY CONTESTED AS IT WAS IN PANHANDLE EASTERN PIPE
LINE AND WHEN THE COURT HAS BEEN SO EXPLICIT IN BRINGING TRAFFIC IN GAS
LEASES UNDER THE "PRODUCTION OR GATHERING OF NATURAL GAS" WHICH
CONGRESS LEFT TO THE STATES, I WOULD ADHERE TO THAT RESULT UNTIL
CONGRESS CHANGES IT.
..END :





SCOTT, TREASURER OF ILLINOIS V. GERMANO 381 U.S. 407 


NO. 1152.  DECIDED JUNE 1, 1965.  - 241 F. SUPP. 715, VACATED AND
REMANDED. 


AFTER INVALIDATING SENATORIAL APPORTIONMENT PROVISIONS IN THE ILLINOIS
CONSTITUTION AND STATUTES, A FEDERAL DISTRICT COURT ORDERED THAT ANY
CORRECTIVE PROVISIONS BE SUBMITTED TO IT BEFORE ANY ELECTION
THEREUNDER, FAILING WHICH IT WOULD ISSUE A SHOW-CAUSE ORDER AS TO WHY
STATE SENATORS SHOULD NOT BE ELECTED AT LARGE IN 1966 AND THEREAFTER. 
PREVIOUSLY A CASE HAD BEEN FILED IN STATE COURT ATTACKING THE
COMPOSITION OF THE LEGISLATURE WHICH, AFTER THE FEDERAL COURT ORDER,
THE STATE SUPREME COURT DECIDED ON APPEAL, HOLDING THE STATE SENATE
COMPOSITION INVALID.  THE COURT EXPRESSED CONFIDENCE THAT THE
LEGISLATURE AT ITS CURRENT SESSION WOULD TAKE CORRECTIVE ACTION AND
RETAINED JURISDICTION TO INSURE THAT THE 1966 ELECTION WAS PURSUANT TO
A VALID PLAN.  THEREAFTER APPELLANT HERE UNSUCCESSFULLY MOVED THE
DISTRICT COURT TO VACATE ITS ORDER AND STAY PROCEEDINGS IN LIGHT OF THE
STATE SUPREME COURT OPINION.  HELD:  APPROPRIATE STATE ACTION TO
CORRECT MALAPPORTIONMENT IS TO BE ENCOURAGED.  THE DISTRICT COURT ORDER
IS VACATED AND THE CASE REMANDED FOR THE FIXING OF A REASONABLE TIME
FOR VALID SENATORIAL REDISTRICTING BY AN AGENCY OF THE STATE, INCLUDING
ITS SUPREME COURT, BEFORE THE 1966 ELECTION, WITH RETENTION OF
JURISDICTION BY THE DISTRICT COURT FOR APPROPRIATE ACTION, INCLUDING AN
ORDER FOR A VALID REAPPORTIONMENT PLAN, FAILING TIMELY STATE ACTION. 

SCOTT, TREASURER OF ILLINOIS, ET AL. V. GERMANO ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

UPON REMAND OF THIS CASE, 378 U.S. 560 (1964), FOR FURTHER
PROCEEDINGS CONSISTENT WITH THE VIEWS STATED IN REYNOLDS V. SIMS, 377
U.S. 533 (1964), THE DISTRICT COURT ON JANUARY 22, 1965, ENTERED A
JUDGMENT DECLARING INVALID ART. IV, SEC. 6, OF THE ILLINOIS
CONSTITUTION AND ILL.  REV. STAT., C. 46, SECS. 158-1 TO 158-5 (1963),
APPORTIONING THE ILLINOIS SENATE; DIRECTING THAT ALL MEMBERS OF THE
ILLINOIS GENERAL ASSEMBLY BE MADE PARTIES DEFENDANT; AND REQUIRING THAT
"ANY IMPLEMENTATION, AMENDMENT OR SUBSTITUTION OF ALL OR PART OF THE
SAID DEFECTIVE PORTIONS" OF THE ILLINOIS CONSTITUTION OR LEGISLATION BE
SUBMITTED TO IT FOR APPROVAL BEFORE THE HOLDING OF ANY ELECTION
THEREUNDER.  IT FURTHER HELD THAT IF NO SUCH "IMPLEMENTATION, AMENDMENT
OR SUBSTITUTION" WAS SUBMITTED IT WOULD ORDER THE PARTIES TO SHOW CAUSE
WHY ALL ILLINOIS STATE SENATORS SHOULD NOT BE ELECTED FROM THE STATE AT
LARGE IN THE 1966 ELECTION AND EVERY FOUR YEARS THEREAFTER. 

IN APRIL 1964 THE CASE OF PEOPLE EX REL. ENGLE V. KERNER WAS FILED IN
THE CIRCUIT COURT OF SANGAMON COUNTY, ILLINOIS.  IT CONTESTED THE
COMPOSITION OF BOTH HOUSES OF THE GENERAL ASSEMBLY BUT WAS DISMISSED BY
THE TRIAL COURT.  UPON APPEAL THE SUPREME COURT OF ILLINOIS ON FEBRUARY
4, 1965, HELD THE COMPOSITION OF THE ILLINOIS SENATE INVALID; THE COURT
EXPRESSED CONFIDENCE THAT THE GENERAL ASSEMBLY WOULD "SUCCESSFULLY
PERFORM ITS DUTY TO ENACT A CONSTITUTIONALLY VALID PLAN DURING ITS
CURRENT SESSION" WHICH EXPIRES JULY 1, 1965.  HOWEVER, THE COURT
RETAINED JURISDICTION OF THE CASE "FOR THE PURPOSE OF TAKING SUCH
AFFIRMATIVE ACTION AS MAY BE NECESSARY TO INSURE THAT THE 1966 ELECTION
IS PURSUANT TO A CONSTITUTIONALLY VALID PLAN."  32 ILL. 2D 212, 225,
205 N.E.2D 33, 41. 

ON FEBRUARY 8, 1965, THE APPELLANTS HERE MOVED THAT THE UNITED STATES
DISTRICT COURT RECONSIDER AND VACATE ITS ORDER OF JANUARY 22, 1965, AND
STAY FURTHER PROCEEDINGS IN LIGHT OF THE SUPREME COURT OF ILLINOIS'
OPINION IN ENGLE, SUPRA.  THIS THE DISTRICT COURT REFUSED TO DO.
DIRECT APPEAL WAS PERFECTED HERE, 28 U.S.C. SEC. 1253 (1958 ED.), AND
THE APPELLANTS HAVE NOW MOVED TO STAY THE JUDGMENT OF THE DISTRICT
COURT.* 

*THE MOTION TO DISPENSE WITH THE PRINTING OF THE JURISDICTIONAL
STATEMENT IS GRANTED. 

WE BELIEVE THAT THE DISTRICT COURT SHOULD HAVE STAYED ITS HAND.  THE
POWER OF THE JUDICIARY OF A STATE TO REQUIRE VALID REAPPORTIONMENT OR
TO FORMULATE A VALID REDISTRICTING PLAN HAS NOT ONLY BEEN RECOGNIZED BY
THIS COURT BUT APPROPRIATE ACTION BY THE STATES IN SUCH CASES HAS BEEN
SPECIFICALLY ENCOURAGED.  MARYLAND COMMITTEE V. TAWES, 377 U.S. 656,
676 (1964); SCRANTON V. DREW, 379 U.S. 40 (1964), CITING BUTCHER V.
BLOOM, 415 PA. 438, 203 A.2D 556 (1964); JACKMAN V. BODINE, 43 N.J.
453, 473, 205 A.2D 713, 724 (1964).  SEE ALSO KIDD V. MCCANLESS, 200
TENN. 273, 292 S.W.2D 40 (1956), AND DISCUSSION THEREOF IN BAKER V.
CARR, 369 U.S. 186, 235-236 (1962). 

WE THEREFORE VACATE THE ORDER OF THE DISTRICT COURT DATED MAY 7,
1965.  THE CASE IS REMANDED WITH DIRECTIONS THAT THE DISTRICT COURT
ENTER AN ORDER FIXING A REASONABLE TIME WITHIN WHICH THE APPROPRIATE
AGENCIES OF THE STATE OF ILLINOIS, INCLUDING ITS SUPREME COURT, MAY
VALIDLY REDISTRICT THE ILLINOIS STATE SENATE; PROVIDED THAT THE SAME BE
ACCOMPLISHED WITHIN AMPLE TIME TO PERMIT SUCH PLAN TO BE UTILIZED IN
THE 1966 ELECTION OF THE MEMBERS OF THE STATE SENATE, IN ACCORDANCE
WITH THE PROVISIONS OF THE ILLINOIS ELECTION LAWS.  ILL. REV. STAT., C.
46 (1963). 

THE DISTRICT COURT SHALL RETAIN JURISDICTION OF THE CASE AND IN THE
EVENT A VALID REAPPORTIONMENT PLAN FOR THE STATE SENATE IS NOT TIMELY
ADOPTED IT MAY ENTER SUCH ORDERS AS IT DEEMS APPROPRIATE, INCLUDING AN
ORDER FOR A VALID REAPPORTIONMENT PLAN FOR THE STATE SENATE OR AN ORDER
DIRECTING THAT ITS MEMBERS BE ELECTED AT LARGE PENDING A VALID
REAPPORTIONMENT BY THE STATE ITSELF.  IT IS SO ORDERED. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













SMITH V. WARDEN, CONNECTICUT STATE PRISON 381 U.S. 411 


NO. 934, MISC.  DECIDED JUNE 1, 1965 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


SMITH V. WARDEN, CONNECTICUT STATE PRISON. 

APPEAL FROM THE SUPERIOR COURT OF CONNECTICUT, HARTFORD COUNTY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WARD V. NEW YORK 381 U.S. 411 


NO. 1158, MISC.  DECIDED JUNE 1, 1965 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


WARD V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















AIR DISPATCH, INC. V. UNITED STATES 381 U.S. 412 


NO. 1004.  DECIDED JUNE 1, 1965.  - 237 F. SUPP. 450, AFFIRMED. 


AIR DISPATCH, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















UNITED STATES V. LEITER MINERALS, INC. 381 U.S. 413 


NO. 950.  DECIDED JUNE 1, 1965* - CERTIORARI GRANTED, JUDGMENT VACATED
AND CASES REMANDED TO DISTRICT COURT WITH DIRECTIONS TO DISMISS THE
COMPLAINT AS MOOT.  - REPORTED BELOW:  329 F.2D 85. 

*TOGETHER WITH NO. 951, CALIFORNIA CO. ET AL. V. LEITER MINERALS,
INC., ET AL., ALSO ON PETITION FOR WRIT OF CERTIORARI TO THE SAME
COURT. 


UNITED STATES V. LEITER MINERALS, INC., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION OF ALMA BURAS ET AL. TO BE ADDED AS PARTIES RESPONDENT IS
GRANTED. 

UPON CONSIDERATION OF THE JOINT SUGGESTION OF MOOTNESS, THE PETITIONS
FOR WRITS OF CERTIORARI ARE GRANTED AND THE JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT IS VACATED.  THE CASES
ARE REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA WITH DIRECTIONS TO DISMISS THE COMPLAINT AS
MOOT. 
..END :




KENNECOTT COPPER CORP. V. UNITED STATES 381 U.S. 414 


NO. 995.  DECIDED JUNE 1, 1965.  - 231 F. SUPP. 95, AFFIRMED. 


KENNECOTT COPPER CORP. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED.  BROWN
SHOE CO. V. UNITED STATES, 370 U.S. 294 AND UNITED STATES V. ALUMINUM
CO. OF AMERICA, 377 U.S. 271. 

MR. JUSTICE HARLAN AND MR. JUSTICE GOLDBERG, DISSENTING. 

WE WOULD NOTE PROBABLE JURISDICTION AND SET THE CASE FOR ARGUMENT. 
IN SO VOTING, WE INDICATE NO OPINION ON THE MERITS.  UNDER THE
EXPEDITING ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29 (1964 ED.),
THIS IS APPELLANT'S FIRST AND ONLY APPEAL.  SO LONG AS THIS STATUTE
REMAINS ON THE BOOKS AND CONGRESS PROVIDES NO INTERMEDIATE REVIEW.  SEE
UNITED STATES V. SINGER MFG. CO., 374 U.S. 174, 175, IT IS OUR VIEW
THAT THE POLICY OF THE ACT IS, IN GENERAL, BEST SERVED BY PLENARY
RATHER THAN SUMMARY DISPOSITIONS OF SUCH APPEALS.  IBID.  OF COURSE, IF
THE QUESTION PRESENTED BY AN APPEAL IS PLAINLY INSUBSTANTIAL OR
DIRECTLY GOVERNED BY A CONTROLLING DECISION OF THIS COURT, SUMMARY
DISPOSITION WOULD STILL BE APPROPRIATE.  SINCE WE DO NOT BELIEVE THAT
THIS CAN BE SAID OF THIS CASE, WE WOULD GIVE PLENARY CONSIDERATION TO
THIS APPEAL. 
..END :






















JORDAN, SECRETARY OF STATE OF CALIFORNIA V. SILVER 381 U.S. 415 


NO. 935.  DECIDED JUNE 1, 1965.  - AFFIRMED. 


JORDAN, SECRETARY OF STATE OF CALIFORNIA, ET AL. V. SILVER. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION OF THE APPELLANT THE SENATE OF THE LEGISLATURE OF
CALIFORNIA TO TAKE JUDICIAL NOTICE OF OFFICIAL JUDICIAL RECORDS IS
DENIED.  THE MOTION TO STRIKE THE MOTION TO DISMISS OR AFFIRM IS ALSO
DENIED.  THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE STEWART
JOIN, CONCURRING. 

THE CALIFORNIA CONSTITUTION RESERVES TO THE PEOPLE OF THE STATE THE
INITIATIVE POWER TO PROPOSE CONSTITUTIONAL AMENDMENTS BY FILING A
PETITION WITH THE SECRETARY OF STATE.  (FN1)  IF THE PETITION IS SIGNED
BY 8% OF THE PERSONS WHO VOTED IN THE PRECEDING GUBERNATORIAL ELECTION,
THE PROPOSED AMENDMENT WILL BE SUBMITTED TO THE PEOPLE AT THE NEXT
GENERAL ELECTION, AND ONLY A BARE MAJORITY VOTE OF THE PEOPLE IS
REQUIRED IN ORDER TO PASS THE AMENDMENT. 

PRIOR TO 1926 THE CALIFORNIA CONSTITUTION, ART. IV, SEC. 6, PROVIDED
THAT BOTH HOUSES OF THE LEGISLATURE WOULD BE APPORTIONED ON THE BASIS
OF POPULATION.  (FN2)  IN 1926 AN INITIATIVE MEASURE, KNOWN AS
PROPOSITION 28, WAS SUBMITTED TO THE VOTERS WHICH DELETED THE
REQUIREMENT THAT THE SENATE BE APPORTIONED ON A STRICT POPULATION
BASIS, LEAVING THE METHOD OF APPORTIONING THE ASSEMBLY UNAFFECTED. 
(FN3)  THE STATEMENTS ACCOMPANYING THE MEASURE, WHICH WERE DISTRIBUTED
TO ALL VOTERS, DESCRIBED THE PROPOSITION AS AN ATTEMPT TO PROVIDE A
FEDERAL-TYPE PLAN FOR CALIFORNIA, SIMILAR TO THE APPORTIONMENT OF THE
UNITED STATES CONGRESS, AND SUMMARIZED THE ARGUMENTS PRO AND CON THE
PROPOSAL.  (FN4)  PROPOSITION 28 WAS APPROVED BY A POPULAR VOTE OF
437,003 TO 363,208 IN THE NOVEMBER 1926 ELECTION, AND THE FOLLOWING
YEAR THE LEGISLATURE ADOPTED APPORTIONMENT STATUTES TO EFFECTUATE THE
CONSTITUTIONAL AMENDMENT.  THIS LEGISLATION WAS SUBMITTED TO THE PEOPLE
AS REQUIRED BY STATE LAW, AND WAS APPROVED BY THEM IN THE 1928
ELECTION.  (FN5)  THE AMENDMENT PROVIDED THAT THE SENATE WOULD BE
COMPOSED OF 40 MEMBERS, TO BE ELECTED FROM SENATORIAL DISTRICTS; THE
DISTRICTS WOULD BE BASED ON POPULATION, BUT NO COUNTY COULD CONTAIN
MORE THAN ONE DISTRICT, AND NO DISTRICT COULD CONSIST OF MORE THAN
THREE COUNTIES.  (FN6) 

SINCE THE ADOPTION OF THESE CHANGES, VARIOUS INITIATIVE MEASURES HAVE
BEEN SUBMITTED TO THE VOTERS ON MORE THAN ONE OCCASION IN AN ATTEMPT TO
CHANGE THIS APPORTIONMENT SYSTEM FOR THE SENATE.  IN 1948 SUCH A
PROPOSITION WAS DEFEATED BY A VOTE OF 2,250,937 TO 1,069,899.  (FN7)
IN 1960 SUCH A PROPOSITION WAS DEFEATED BY A VOTE OF 3,408,090 TO
1,876,185.  (FN8)  AND IN 1962 ANOTHER SUCH PROPOSITION WAS DEFEATED BY
A VOTE OF 2,495,440 TO 2,181,758.  (FN9) 

THE COURT TODAY SUMMARILY AFFIRMS THE DECREE OF THE DISTRICT COURT
HOLDING THIS SENATORIAL APPORTIONMENT, CONSISTENTLY APPROVED BY A
MAJORITY OF THE PEOPLE OF CALIFORNIA VOTING IN GENERAL ELECTIONS, TO BE
INVALID UNDER THE DECISIONS OF THIS COURT IN REYNOLDS V. SIMS, 377 U.S.
533, AND COMPANION CASES.  WERE I ABLE TO DETECT IN ANY OF THOSE CASES
THE SLIGHTEST BASIS FOR OPTIMISM THAT THE COURT MIGHT CONSIDER LAST
TERM'S REAPPORTIONMENT PRONOUNCEMENTS TO LEAVE ROOM FOR THE PEOPLE OF A
STATE TO CHOOSE FOR THEMSELVES THE KIND OF LEGISLATIVE STRUCTURE THEY
WISH TO HAVE - AT LEAST WHEN THE DEMOCRATIC PROCESSES EMPLOYED ARE AS
STRAIGHTFORWARD AND FLEXIBLE AS THOSE OF CALIFORNIA - I WOULD VOTE TO
"NOTE" AND HEAR THIS CASE.  FINDING, HOWEVER, THAT THE JUDGMENT OF THE
DISTRICT COURT IS SQUARELY REQUIRED BY LUCAS V. FORTY-FOURTH GENERAL
ASSEMBLY, 377 U.S. 713, (FN10) I RELUCTANTLY ACQUIESCE IN THE COURT'S
SUMMARY AFFIRMANCE.  (FN11) 

FN1  CALIF. CONST., ART. IV, SEC. 1. 

FN2  "FOR THE PURPOSE OF CHOOSING MEMBERS OF THE LEGISLATURE, THE
STATE SHALL BE DIVIDED INTO FORTY SENATORIAL AND EIGHTY ASSEMBLY
DISTRICTS, AS NEARLY EQUAL IN POPULATION AS MAY BE, AND COMPOSED OF
CONTIGUOUS TERRITORY, TO BE CALLED SENATORIAL AND ASSEMBLY DISTRICTS." 
CALIF.  CONST. OF 1879, ART. IV, SEC. 6, IN CALIF. LAWS 1925, P. XI. 

FN3  "FOR THE PURPOSE OF CHOOSING MEMBERS OF THE LEGISLATURE, THE
STATE SHALL BE DIVIDED INTO FORTY SENATORIAL AND EIGHTY ASSEMBLY
DISTRICTS TO BE CALLED SENATORIAL AND ASSEMBLY DISTRICTS.  SUCH
DISTRICTS SHALL BE COMPOSED OF CONTIGUOUS TERRITORY, AND ASSEMBLY
DISTRICTS SHALL BE AS NEARLY EQUAL IN POPULATION AS MAY BE.  EACH
SENATORIAL DISTRICT SHALL CHOOSE ONE SENATOR AND EACH ASSEMBLY DISTRICT
SHALL CHOOSE ONE MEMBER OF ASSEMBLY  ...  .  IN THE FORMATION OF
SENATORIAL DISTRICTS NO COUNTY OR CITY AND COUNTY SHALL CONTAIN MORE
THAN ONE SENATORIAL DISTRICT, AND THE COUNTIES OF SMALL POPULATION
SHALL BE GROUPED IN DISTRICTS OF NOT TO EXCEED THREE COUNTIES IN ANY
ONE SENATORIAL DISTRICT  ...  ."  CALIF. LAWS 1927, P. LXXXV. 

ANOTHER MEASURE, PROPOSITION 20, WAS ALSO SUBMITTED TO THE VOTERS IN
THE 1926 ELECTION, WHICH WOULD HAVE PRESERVED THE APPORTIONMENT OF BOTH
HOUSES ON A STRICT POPULATION BASIS.  THIS PROPOSITION WAS DEFEATED BY
A VOTE OF 492,923 TO 319,456.  RECORD 37. 

FN4  "ARGUMENT IN FAVOR OF LEGISLATIVE REAPPORTIONMENT INITIATIVE
MEASURE. 

                         "'FEDERAL PLAN.' 

"THIS PROPOSED CONSTITUTIONAL AMENDMENT WILL TAKE THE PLACE OF
PROVIDES THAT THE STATE SHALL BE DIVIDED INTO FORTY SENATORIAL
DISTRICTS AND EIGHTY ASSEMBLY DISTRICTS 'AS NEARLY EQUAL IN POPULATION
AS MAY BE, AND COMPOSED OF CONTIGUOUS TERRITORY.' 

"THE GROWTH OF CITY POPULATION IN CALIFORNIA, AND PARTICULARLY THE
UNPRECEDENTED DEVELOPMENT OF THE TWO GREAT URBAN REGIONS OF THE STATE,
WILL HAVE THE EFFECT, IF REPRESENTATION IS REAPPORTIONED ACCORDING TO
PRESENT LAW, OF CONSOLIDATING POLITICAL POWER IN THE INHABITANTS OF 3
PER CENT OF THE AREA OF THE STATE TO THE PREJUDICE OF THE
REPRESENTATIVE RIGHTS OF THE BALANCE OF THE POPULATION WHO INHABIT 97
PER CENT OF THE AREA OF THE STATE.  THE STATE LEGISLATURE, FORESEEING
DISADVANTAGES TO THE GENERAL INTERESTS OF THE STATE, HAS REPEATEDLY
DECLINED, SINCE THE PUBLICATION OF THE LAST FEDERAL CENSUS, TO
REAPPORTION REPRESENTATION ON THE BASIS OF THE EXISTING LAW. 

"THE PRESENT AMENDMENT WOULD ALTER THE CONSTITUTION SO AS TO ENABLE
THE LEGISLATURE TO FIND A SOLUTION TO THE DIFFICULTY THAT WILL PROTECT
THE RIGHT OF THE GREAT BULK OF THE STATE TO FAIR REPRESENTATION. 

"THE PLAN IS CALLED THE 'FEDERAL PLAN' BECAUSE ITS PROVISIONS
RESEMBLE THOSE OF THE FEDERAL CONSTITUTION WITH RESPECT TO
REPRESENTATION IN THE UNITED STATES CONGRESS.  IT RESTS UPON A
PRINCIPLE WIDELY RECOGNIZED IN AMERICAN GOVERNMENT AND OTHER
GOVERNMENTS THAT REPRESENTATION IN A PUBLIC ASSEMBLY IS EQUITABLY
APPORTIONED NOT ACCORDING TO POPULATION ALONE BUT ACCORDING TO TWO
FACTORS - POPULATION AND TERRITORY. 

"THE MEASURE WILL PRESERVE TO RURAL CALIFORNIA AND THE GREAT
AGRICULTURAL PRODUCING AREAS WHICH COMPRISE IT, THE CONTROL OF ONE
HOUSE OF THE STATE LEGISLATURE, NAMELY:  THE SENATE.  THE MEASURE MAKES
NO CHANGE IN ASSEMBLY DISTRICTS.  IT DOES NOT INCREASE THE MEMBERS OF
THE LEGISLATURE.  IT CAN NOT, IN ANY WAY, ADD TO STATE EXPENSE. 

"UNDER THIS PLAN NO COUNTY OR CITY AND COUNTY HAS MORE THAN ONE
SENATOR.  THE SMALL COUNTIES ARE GROUPED, BUT ARE GIVEN AT LEAST ONE
SENATOR TO EACH THREE COUNTIES.  THERE ARE FIFTY-EIGHT COUNTIES IN THE
STATE AND FORTY SENATORS.  TO ILLUSTRATE THE WORKING OF THE PLAN,
TWENTY-SEVEN OF THESE COUNTIES MIGHT, BY REASON OF SUPERIOR POPULATION,
EACH ELECT ONE SENATOR; SIXTEEN COUNTIES GROUPED IN TWOS MIGHT ELECT
EIGHT; AND FIFTEEN COUNTIES GROUPED IN THREES MIGHT ELECT FIVE.  EVERY
LARGE HOMOGENEOUS GEOGRAPHICAL AREA OF THE STATE IS ASSURED ONE
REPRESENTATIVE IN THE SENATE. 

"TWENTY-NINE STATES OF THE UNION HAVE BASED THEIR LEGISLATIVE
REPRESENTATION IN SOME FORM UPON THIS PRINCIPLE, AND THESE STATES
INCLUDE, AMONG OTHERS, NEW YORK, PENNSYLVANIA, MASSACHUSETTS, IOWA, AND
OHIO.  THE PRINCIPLE WAS SUBMITTED TO A POPULAR ELECTION IN OHIO IN
1903, AND WAS OVERWHELMINGLY ADOPTED BY 731,000 VOTES FOR IT AND ONLY
26,479 VOTES AGAINST THE PRINCIPLE.  THIS AMENDMENT IS SPONSORED BY THE
CALIFORNIA FARM BUREAU FEDERATION, THE STATE GRANGE, THE FARMERS UNION,
AND THE AGRICULTURAL LEGISLATIVE COMMITTEE.  BUT IT IS ALSO SUPPORTED
BY CHAMBERS OF COMMERCE, WOMEN'S CLUBS, AND CIVIC ORGANIZATIONS
GENERALLY THROUGHOUT THE STATE.  IT WILL CREATE A WELL-BALANCED
LEGISLATURE IN WHICH NEITHER THE CITIES NOR THE COUNTRYSIDE MAY
PREDOMINATE.  IT IS A JUST AND WHOLESOME PROVISION.  IT WILL GIVE THE
STATE A BETTER LEGISLATURE THAN IS POSSIBLE UNDER PRESENT LAW, AND WILL
BE A FAIR DETERMINATION OF A CONTROVERSY DISTURBING TO THE BEST
INTERESTS OF CALIFORNIA. 

"VOTE YES ON THIS AMENDMENT.                   "DAVID P. BARROWS. 

"ARGUMENT AGAINST LEGISLATIVE REAPPORTIONMENT INITIATIVE MEASURE. 

"THE PROPOSED AMENDMENT IS UNFAIR AND IMPRACTICAL SO FAR AS IT
RELATES TO SENATORIAL DISTRICTS. 

"THE PROVISION THAT NO COUNTY OR CITY AND COUNTY SHALL CONTAIN MORE
THAN ONE SENATORIAL DISTRICT WOULD LIMIT ALAMEDA, LOS ANGELES AND SAN
FRANCISCO TO ONE SENATOR EACH.  THESE THREE COMBINED HAVE 200,000 MORE
THAN HALF OF THE POPULATION OF THE STATE, SO THE RESULT WOULD BE THAT
THE MAJORITY WOULD HAVE ONLY THREE SENATORS, AND THE MINORITY WOULD BE
REPRESENTED BY THIRTY-SEVEN SENATORS.  THERE IS NO GOOD REASON FOR THE
DISCRIMINATION. 

"THE AGRICULTURAL AND COMMERCIAL INTERESTS ARE SO CLOSELY ALLIED AND
INTERWOVEN THAT NEITHER ONE AS SUCH SHOULD HAVE THE GREATER POWER IN
LEGISLATION.  THE ONLY FAIR WAY IS TO BASE THE REPRESENTATION ON
POPULATION, IN ACCORDANCE WITH THE FUNDAMENTAL PRINCIPLES OF OUR
GOVERNMENT THAT THE MAJORITY SHALL RULE. 

"THE AMENDMENT PRESCRIBES NO METHOD OF DETERMINING HOW THE SENATORIAL
DISTRICTS SHALL BE FORMED.  IT MERELY PROVIDES THAT COUNTIES OF SMALL
POPULATION SHALL BE GROUPED IN DISTRICTS OF NOT MORE THAN THREE
COUNTIES IN ONE DISTRICT.  IT IS LEFT TO THE LEGISLATURE OR
REAPPORTIONMENT COMMISSION TO DETERMINE ARBITRARILY AND WITHOUT
RESTRICTION HOW IT SHALL BE DONE.  MANY OF THE COUNTIES OF SMALL
POPULATION ARE CONTIGUOUS, SO IT WILL FOLLOW THAT SPARSELY SETTLED
DISTRICTS MUST BE FORMED, AND EVEN THE AGRICULTURAL SECTIONS WILL NOT
HAVE EQUAL REPRESENTATION IN THE SENATE AS AMONG THEMSELVES. 

"THE POPULOUS COUNTIES PAY THE GREATER SHARE OF TAXES, AND SHOULD
HAVE THE CONTROLLING VOICE IN THE EXPENDITURE OF THE STATE'S FUNDS. 

"IF THE CITIZENS OF THESE CENTERS SHOULD VOTE FOR THIS AMENDMENT THEY
WOULD HELP TO DISFRANCHISE THEMSELVES. 

VOTE NO AND PRESERVE AMERICAN PRINCIPLES. 

           "DANA R. WELLER." 

RECORD 54. 

FN5  RECORD 37.  THE VOTE WAS 692,347 IN FAVOR, AND 570,120 OPPOSED. 

FN6  CALIF. CONST., ART. IV, SEC. 6.  THE PRESENT EFFECT OF THIS
APPORTIONMENT IS THAT LOS ANGELES COUNTY, WITH A POPULATION OF OVER
6,000,000, HAS ONE SENATOR, AND THE THREE SMALLEST COUNTIES, WHICH
TOGETHER HAVE A POPULATION OF 14,294, ALSO HAVE ONE SENATOR.  THERE IS
NO CLAIM MADE, HOWEVER, THAT THE ASSEMBLY IS NOT APPORTIONED SOLELY ON
THE BASIS OF POPULATION. 

FN7  PROPOSITION 13 ON THE 1948 BALLOT.  RECORD 37-38. 

FN8  PROPOSITION 15 ON THE 1960 BALLOT.  RECORD 38. 

FN9  PROPOSITION 23 ON THE 1963 BALLOT.  RECORD 78. 

FN10  THE GLEAM OF A DISTINCTION BETWEEN THAT CASE AND THIS, WHICH IS
SUGGESTED BY WHAT THE COURT SAID AT P. 731 OF ITS LUCAS OPINION, IS
WHOLLY DISSIPATED BY WHAT APPEARS SHORTLY THEREAFTER AT PP. 736-737. 

FN11  THIS AFFIRMANCE DOES NOT OF COURSE TOUCH THE PROPRIETY OF ANY
RELIEF THAT THE DISTRICT COURT MAY LATER GRANT, OR THE EXTENT TO WHICH
PROVISIONS OF THE CALIFORNIA CONSTITUTION ARE STILL BINDING ON THE
STATE LEGISLATURE IN DRAFTING APPORTIONMENT LEGISLATION, SEE FORTY
FOURTH GENERAL ASSEMBLY V. LUCAS, 379 U.S. 693. 
..END :





















HEARNE V. SMYLIE, GOVERNOR OF IDAHO 381 U.S. 420 


NO. 617.  DECIDED JUNE 1, 1965.  - APPEAL DISMISSED. 


HEARNE ET AL. V. SMYLIE, GOVERNOR OF IDAHO, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
IDAHO. 

PER CURIAM. 

THE APPEAL IN THIS CASE CONCERNS AN ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF IDAHO STAYING THIS REAPPORTIONMENT
SUIT UNTIL 30 DAYS AFTER THE ADJOURNMENT OF THE 1965 SESSION OF THE
IDAHO LEGISLATURE.  THE IDAHO LEGISLATURE, AFTER ADOPTING A NEW
REAPPORTIONMENT PLAN, ADJOURNED ON MARCH 25, 1965.  THE STAY ORDER NOW
HAVING EXPIRED BY ITS OWN TERMS AND THE DISTRICT COURT AND THE PARTIES
NOW BEING IN A POSITION TO PROCEED PROMPTLY WITH THIS LITIGATION, THE
MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 
..END :











DREWS V. MARYLAND 381 U.S. 421 


NO. 1010.  DECIDED JUNE 1, 1965.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  236 MD. 349, 204 A.2D 64. 


DREWS ET AL. V. MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING FROM THE DENIAL OF CERTIORARI.  (FN1) 

ON SUNDAY, SEPTEMBER 6, 1959, JURETHA JOYNER AND JAMES L. LACEY, WHO
ARE NEGROES, AND HELEN W. BROWN, DALE H. DREWS AND JOSEPH C. SHEEHAM,
WHO ARE WHITE, WENT TO GWYNN OAK PARK, AN AMUSEMENT PARK IN BALTIMORE
COUNTY, MARYLAND.  IRONICALLY, THE PARK WAS CELEBRATING "ALL NATIONS
DAY."  SHORTLY AFTER 3 P.M. THEY WERE STANDING IN A GROUP BY THEMSELVES
AND HAD, A PARK GUARD TESTIFIED, ATTRACTED NO ATTENTION FROM OTHER
PATRONS.  THE GUARD APPROACHED THE GROUP AND TOLD THEM THAT "WE ARE
VERY SORRY BUT THE PARK WAS CLOSED TO COLORED, AND THAT THE COLORED
PEOPLE WOULD HAVE TO LEAVE THE PREMISES  ...  ."  MR. LACEY ANSWERED
THAT HE WAS ENJOYING HIMSELF AND WOULD LIKE TO LOOK AROUND SOME MORE,
AND NEITHER HE NOR MISS JOYNER COMPLIED WITH THE REQUEST TO LEAVE.  THE
GUARD THEN ASKED ALL FIVE TO LEAVE, BUT THEY REFUSED.  HE TESTIFIED,
HOWEVER, THAT THEY "WERE ALL VERY POLITE."  DURING THIS INTERCHANGE
BETWEEN THE GUARD AND PETITIONERS, OTHER PATRONS OF THE PARK BEGAN TO
GATHER AROUND. 

UPON THE REFUSAL OF PETITIONERS TO LEAVE, THE GUARD SUMMONED THE
BALTIMORE COUNTY POLICE, WHO, AFTER ASKING PETITIONERS TO LEAVE, PLACED
THEM UNDER ARREST.  MEANWHILE, THE CROWD SURROUNDING THE PETITIONERS
GREW LARGER AND MORE HOSTILE, EVEN GOING SO FAR AS TO KICK, SPIT, AND
YELL "LYNCH THEM]"   NEITHER THE PARK OFFICIALS NOR THE COUNTY POLICE
MADE ANY ATTEMPT TO EXCLUDE FROM THE PARK OR ARREST ANY OF THOSE WHO
ENGAGED IN SUCH CONDUCT.  UPON BEING INFORMED OF THEIR ARREST, THE FIVE
JOINED ARMS BRIEFLY, AND THE THREE MEN THEN DROPPED TO THE GROUND AND
ASSUMED A PROSTRATE POSITION.  PETITIONERS JOYNER AND BROWN REMAINED ON
THEIR FEET.  THE POLICE PLACED HANDCUFFS ON MISS JOYNER, AND ESCORTED
HER AND MISS BROWN FROM THE PARK.  THOUGH THE POLICE ENCOUNTERED SOME
DIFFICULTY IN PULLING THE WOMEN THROUGH THE CROWD, THEY LEFT UNDER
THEIR OWN POWER.  THE MEN, ON THE OTHER HAND, HAD TO BE CARRIED OUT,
BUT OFFERED NO ACTIVE RESISTANCE.  THE ONLY REMARK BY ANY OF THE
PETITIONERS WAS MADE BY ONE OF THE MEN, WHO, RESPONDING TO MISTREATMENT
BY SOMEONE IN THE CROWD, SAID "  ... FORGIVE HIM, HE DOESN'T KNOW WHAT
HE IS DOING  ...  ." 

ON APRIL 5, 1960, PETITIONERS BROWN, JOYNER, DREWS AND SHEEHAM WERE
CHARGED WITH "ACTING IN A DISORDERLY MANNER, TO THE DISTURBANCE OF THE
PUBLIC PEACE, AT, IN OR ON GWYNN OAK AMUSEMENT PARK, INC., A BODY
CORPORATE, A PLACE OF PUBLIC RESORT AND AMUSEMENT IN BALTIMORE COUNTY"
IN VIOLATION OF MD. CODE ANN. ART. 27, SEC. 123 (1957 ED.).  (FN2)  MR.
LACEY WAS NOT PROSECUTED.  PETITIONERS WAIVED JURY TRIAL, WERE FOUND
GUILTY BY THE COURT, AND EACH WAS FINED $25 PLUS COSTS.  (FN3)  ON
JANUARY 18, 1961, THE MARYLAND COURT OF APPEALS, DEFINING DISORDERLY
CONDUCT AS "THE DOING OR SAYING, OR BOTH, OF THAT WHICH OFFENDS,
DISTURBS, INCITES, OR TENDS TO INCITE, A NUMBER OF PEOPLE GATHERED IN
THE SAME AREA," (FN4) AFFIRMED THE CONVICTIONS.  224 MD. 186, 192, 167
A.2D 341, 343-344.  ON JUNE 22, 1964, THIS  COURT VACATED THE JUDGMENTS
AND REMANDED THE CASE TO THE COURT OF APPEALS FOR CONSIDERATION IN
LIGHT OF GRIFFIN V. MARYLAND, 378 U.S. 130, AND BELL V. MARYLAND, 378
U.S. 226.  378 U.S. 547.  ON REMAND, THE COURT OF APPEALS, PURPORTING
TO DISTINGUISH GRIFFIN AND BELL, REINSTATED AND REAFFIRMED THE PRIOR
JUDGMENTS OF CONVICTION, JUDGE OPPENHEIMER DISSENTING.  236 MD. 349,
204 A.2D 64. 

I CANNOT CONCUR IN THE COURT'S REFUSAL TO REVIEW THIS CASE.  (1)
THERE IS IN MY MIND SERIOUS QUESTION AS TO WHETHER THE CONDUCT OF
PETITIONERS CAN CONSTITUTIONALLY BE PUNISHED UNDER A DISORDERLY CONDUCT
STATUTE.  (2) IT SEEMS TO ME APPARENT FROM THE RECORD THAT PETITIONERS'
CONDUCT IS PROTECTED UNDER THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 241,
AND THAT, UNDER OUR DECISION IN HAMM V. CITY OF ROCK HILL AND LUPPER V.
ARKANSAS, 379 U.S. 306, THE PASSAGE OF THE ACT MUST BE DEEMED TO HAVE
ABATED THE CONVICTIONS. 

       I. 

IN THOMPSON V. LOUISVILLE, 362 U.S. 199, THE ONLY EVIDENCE SUPPORTING
THE PETITIONER'S DISORDERLY CONDUCT CONVICTION WAS TO THE EFFECT THAT,
AFTER BEING ARRESTED ON ANOTHER CHARGE, HE WAS "VERY ARGUMENTATIVE"
WITH THE ARRESTING OFFICERS.  WE SET ASIDE THE CONVICTION ON THE GROUND
THAT IT WAS "SO TOTALLY DEVOID OF EVIDENTIARY SUPPORT AS TO RENDER HIS
CONVICTION UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT."  IBID.  THOMPSON WAS FOLLOWED IN GARNER V.
LOUISIANA, 368 U.S. 157, WHERE THE EVIDENCE SHOWED THAT THE
PETITIONERS, WHO WERE NEGROES, HAD TAKEN SEATS AT A LUNCH COUNTER WHERE
ONLY WHITE PEOPLE WERE SERVED, AND HAD REFUSED TO LEAVE UPON REQUEST. 
FOR THIS THEY WERE CONVICTED OF DISTURBING THE PEACE.  FOR PURPOSES OF
OUR DECISION, WE GAVE THE STATUTE UNDER WHICH THE PETITIONERS WERE
CONVICTED ITS BROADEST POSSIBLE READINGS, AND ASSUMED THAT IT OUTLAWED
EVEN PEACEFUL AND ORDERLY CONDUCT WHICH FORESEEABLY MIGHT CAUSE A
PUBLIC COMMOTION, ID., AT 169.  NONETHELESS, WE FOUND THE PETITIONERS'
CONDUCT CONSTITUTIONALLY INSUFFICIENT TO SUPPORT THE CONVICTION.  (FN5)
AND IN BARR V. CITY OF COLUMBIA, 378 U.S. 146, WE REVERSED A BREACH OF
THE PEACE CONVICTION BASED ON CONDUCT SIMILAR TO THAT INVOLVED IN
GARNER.  IN DOING SO, WE OBSERVED THAT: 

"BECAUSE OF THE FREQUENT OCCASIONS ON WHICH WE HAVE REVERSED UNDER
THE FOURTEENTH AMENDMENT CONVICTIONS OF PEACEFUL INDIVIDUALS WHO WERE
CONVICTED OF BREACH OF THE PEACE BECAUSE OF THE ACTS OF HOSTILE
ONLOOKERS, WE ARE RELUCTANT TO ASSUME THAT THE BREACH-OF-PEACE STATUTE
COVERS PETITIONERS' CONDUCT HERE  ...  .  SINCE THERE WAS NO EVIDENCE
TO SUPPORT THE BREACH-OF-PEACE CONVICTIONS, THEY SHOULD NOT STAND." 
ID., AT 150-151. 

I DO NOT FIND THIS CASE MEANINGFULLY DISTINGUISHABLE FROM GARNER AND
BARR.  CLEARLY, NOTHING PETITIONERS DID PRIOR TO BEING PLACED UNDER
ARREST COULD BE CALLED DISORDERLY CONDUCT:  THEIR ONLY "SINS" UP TO
THAT POINT WERE BEING NEGRO OR BEING IN THE COMPANY OF NEGROES, AND
POLITELY REFUSING TO LEAVE THE PARK.  NONETHELESS, THEY WERE ARRESTED. 
THEN ALL FIVE MEMBERS OF THE GROUP BRIEFLY LINKED ARMS, AND, IN A
FURTHER SHOW OF PASSIVE RESISTANCE, THE THREE MEN DROPPED TO THE
GROUND.  THEY DID NOT, THE POLICE OFFICERS TESTIFIED, OFFER ANYTHING IN
THE WAY OF ACTIVE RESISTANCE TO EITHER ARREST OF EJECTION.  AS JUDGE
OPPENHEIMER OBSERVED:  "IN RESISTING THE COMMAND OF THE OFFICERS TO
LEAVE THE PARK, THE DEFENDANTS USED NO FORCE AGAINST THE OFFICERS OR
ANYONE ELSE; THEY HELD BACK OR FELL TO THE GROUND."  236 MD., AT 355,
204 A.2D, AT 68.  NOR DID THEY ARGUE WITH THE POLICE, CF. THOMPSON V.
LOUISVILLE, SUPRA, OR USE PROFANITY, CF. SHARPE V. STATE, 231 MD. 401,
190 A.2D 628, CERT. DENIED, 375 U.S. 946; INDEED, THE ONLY WORDS SPOKEN
WERE IN THE NATURE OF A PLEA FOR FORGIVENESS OF ONE OF THE MOB.  ALL
THEY DID WAS REFUSE TO ASSIST IN THEIR OWN EJECTION FROM A SEGREGATED
AMUSEMENT PARK. 

THE TWO WOMEN DID NOT EVEN LIE DOWN.  THE ONLY BIT OF TESTIMONY FROM
WHICH THE TRIAL JUDGE COULD POSSIBLY HAVE INFERRED DISORDERLY BEHAVIOR
IS THE FOLLOWING: 

"Q.  NOW, OFFICER, DO YOU ALWAYS PLACE HANDCUFFS ON PERSONS WHOM YOU
HAVE ARRESTED? 

"A.  WHEN I HAVE A LITTLE TROUBLE GETTING THEM THROUGH THE PARK OR
ANY - WHEN I HAVE A LITTLE TROUBLE WITH THEM, YES. 

"Q.  WHAT TROUBLE DID YOU HAVE WITH JURETHA JOYNER? 

"A.  BY REFUSING TO LEAVE. 

"Q.  DID YOU PLACE HANDCUFFS ON ANY OF THE OTHER DEFENDANTS? 

"A.  NO, I DON'T RECALL. 

"Q.  DID YOU OR DID YOU NOT? 

"A.  NO, SIR. 

"Q.  NOW, DID THE TWO FEMALE DEFENDANTS LEAVE THE PARK, DID THEY
LEAVE UNDER THEIR OWN POWER? 

"A.  I HAD TO PULL THEM THROUGH THE CROWD. 

"Q.  THEY WALKED OUT? 

"A.  THEY WALKED OUT, BUT I HAD TO PULL THEM THROUGH. 

"THE COURT:  WHY DID YOU HAVE TO PULL THEM THROUGH? 

"A.  BECAUSE THEY DIDN'T WANT TO LEAVE VOLUNTARILY. 

"Q.  THEY CAME WHEN YOU PULLED? 

"A.  THEY DID, YES, SIR." 

THERE IS UNDOUBTEDLY SOME TRUTH TO THE OFFICER'S SURMISE; I AM SURE
NEITHER WOMAN LIKED BEING EJECTED FROM THE PARK SOLELY BECAUSE OF HER
RACE OR THE RACE OF HER FRIEND.  I SUSPECT THAT THEIR RELUCTANCE ALSO
RESULTED IN NO SMALL MEASURE FROM A FEAR OF BEING PULLED THROUGH A
SHOUTING, SPITTING, KICKING MOB. 

EVEN IF IT BE ASSUMED THAT THE ARREST OF PETITIONERS WAS LAWFUL,
(FN6) I HAVE GREAT DIFFICULTY DISTINGUISHING THE CONDUCT OF THE WOMEN,
AND, TO A LESSER EXTENT, THAT OF THE MEN, FROM THE REFUSALS TO LEAVE
SEGREGATED ESTABLISHMENTS WHICH WERE BEFORE US IN GARNER AND BARR.  I
CANNOT SEE HOW A STATUTE OUTLAWING "DRUNKENNESS AND DISORDERLY CONDUCT"
(FN7) CAN BE SAID TO HAVE GIVEN PETITIONERS FAIR WARNING, CF. BOUIE V.
CITY OF COLUMBIA, 378 U.S. 347, THAT THE CONDUCT (OR, IN THE CASE OF
THE WOMEN, LACK OF CONDUCT) IN WHICH THEY ENGAGED WAS CRIMINALLY
PUNISHABLE.  (FN8)  I CANNOT, AT LEAST NOT WITHOUT ARGUMENT AND FULL
CONSIDERATION BY THE COURT, JOIN IN LETTING STAND A DECISION WHICH
HOLDS THAT POLICE CAN ARREST PERSONS WHO ARE DOING NOTHING REMOTELY
DISORDERLY, SECURE IN THE KNOWLEDGE THAT IF THE PERSONS REFUSE
WHOLEHEARTEDLY TO COOPERATE IN THEIR OWN ARREST AND REMOVAL TO A
WAITING SQUAD CAR, THEIR CONVICTION FOR DISORDERLY CONDUCT WILL BE
FORTHCOMING.  (FN9)

                                      II. 

IN HAMM V. CITY OF ROCK HILL AND LUPPER V. ARKANSAS, 379 U.S. 306,
308, WE HELD: 

"THE CIVIL RIGHTS ACT OF 1964 FORBIDS DISCRIMINATION IN PLACES OF
PUBLIC ACCOMMODATION AND REMOVES PEACEFUL ATTEMPTS TO BE SERVED ON AN
EQUAL BASIS FROM THE CATEGORY OF PUNISHABLE ACTIVITIES.  ALTHOUGH THE
CONDUCT IN THE PRESENT CASES OCCURRED PRIOR TO ENACTMENT OF THE ACT,
THE STILL-PENDING CONVICTIONS ARE ABATED BY ITS PASSAGE." 

THE CONVICTIONS IN THIS CASE DID NOT BECOME FINAL UNTIL TODAY.  THAT
THE AMUSEMENT PART IS AN ESTABLISHMENT COVERED BY SEC. 201 OF THE CIVIL
RIGHTS ACT, 78 STAT. 241, 243, SEEMS CLEAR.  (FN10) I TAKE IT,
THEREFORE, THAT THE COURT DOES NOT REGARD PETITIONERS' CONDUCT AS A
"PEACEFUL ATTEMPT TO BE SERVED ON AN EQUAL BASIS."  I CANNOT AGREE. 
SURELY THE ATTEMPT TO BE SERVED WAS COMPLETELY ORDERLY, AND, AS I
INDICATED ABOVE, I THINK PETITIONERS' POST-ARREST CONDUCT AMOUNTED TO
NO MORE THAN A NATURAL AND FULLY UNDERSTANDABLE REACTION TO THEIR
ARBITRARY EXCLUSION FROM THE PARK. 

IN TWO RECENT DECISIONS, WE HAVE, RIGHTLY IN MY OPINION, RECOGNIZED
THAT PEOPLE DENIED SERVICE BECAUSE OF THEIR RACE ARE LIKELY TO REACT
WITH LESS THAN WHOLEHEARTED COOPERATION.  TODAY, I FEAR, THE COURT
FORGETS THAT ELEMENTAL PRINCIPLE OF HUMAN CONDUCT, AND DEMANDS, ON PAIN
OF CRIMINAL PENALTY, THE PATIENCE OF JOB.  IN BLOW V. NORTH CAROLINA,
379 U.S. 684, THE EVIDENCE ADDUCED AT TRIAL SHOWED THAT THE
PETITIONERS, TWO NEGROES, WERE REFUSED SERVICE IN A RESTAURANT,
WHEREUPON ONE PROCEEDED TO SIT DOWN ON THE FLOOR MAT OUTSIDE THE DOOR,
AND THE OTHER STOOD NEAR THE DOOR.  THEY WERE CONVICTED UNDER A STATUTE
MAKING IT A CRIME TO ENTER UPON THE LANDS OF ANOTHER WITHOUT A LICENSE
AFTER BEING FORBIDDEN TO DO SO.  WE HELD THAT THE CIVIL RIGHTS ACT
ABATED THEIR CONVICTIONS.   IN MCKINNIE V. TENNESSEE, 380 U.S. 449, THE
PETITIONERS, EIGHT NEGROES, ENTERED THE VESTIBULE OF A RESTAURANT, WERE
REFUSED ENTRANCE INTO THE RESTAURANT PROPER, WHEREUPON THEY REMAINED IN
THE VESTIBULE, WHICH MEASURED SIX FEET X SIX FEET FOUR INCHES, FOR
APPROXIMATELY 20 MINUTES.  THERE WAS TESTIMONY THAT THE PETITIONERS HAD
ENGAGED IN SOME PUSHING AND SHOVING, BUT THE EVIDENCE WAS UNCLEAR AS TO
WHETHER THE PUSHING WAS INITIATED BY THE NEGROES OR WAS ATTRIBUTABLE TO
WHITE PEOPLE WHO, DURING THE 20 MINUTES, ENTERED THE RESTAURANT THROUGH
THE VESTIBULE.  AGAIN, WE HELD THAT THE CONVICTIONS (FOR CONSPIRACY TO
INJURE TRADE OR COMMERCE) HAD BEEN ABATED BY THE PASSAGE OF THE CIVIL
RIGHTS ACT.  IN EACH CASE WE CONCLUDED THAT THE CONDUCT OF THE
PETITIONERS CONSTITUTED NO MORE THAN A PEACEFUL REFUSAL TO ACQUIESCE IN
A DENIAL OF THEIR FEDERAL RIGHTS.  I THINK WE SHOULD DRAW THE SAME
CONCLUSION HERE. 

IN DISSENTING, I OF COURSE DO NOT SUGGEST THAT A CIVIL RIGHTS
DEMONSTRATOR, OR ANYBODY ELSE, HAS A RIGHT TO BLOCK TRAFFIC, OR BAR
ACCESS TO A MAN'S HOME OR PLACE OF BUSINESS.  I FULLY CONCUR IN THE
COURT'S OBSERVATION IN COX V. LOUISIANA, 379 U.S. 536, 554-555: 

"THE CONSTITUTIONAL GUARANTEE OF LIBERTY IMPLIES THE EXISTENCE OF AN
ORGANIZED SOCIETY MAINTAINING PUBLIC ORDER, WITHOUT WHICH LIBERTY
ITSELF WOULD BE LOST IN THE EXCESSES OF ANARCHY.  THE CONTROL OF TRAVEL
ON THE STREETS IS A CLEAR EXAMPLE OF GOVERNMENTAL RESPONSIBILITY TO
INSURE THIS NECESSARY ORDER.  A RESTRICTION IN THAT RELATION, DESIGNED
TO PROMOTE THE PUBLIC CONVENIENCE IN THE INTEREST OF ALL, AND NOT
SUSCEPTIBLE TO ABUSES OF DISCRIMINATORY APPLICATION, 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 LIGHT BECAUSE THIS WAS THOUGHT
TO BE A MEANS OF SOCIAL PROTEST.  NOR COULD ONE, CONTRARY TO TRAFFIC
REGULATIONS, INSIST UPON A STREET MEETING IN THE MIDDLE OF TIMES SQUARE
AT THE RUSH HOUR AS A FORM OF FREEDOM OF SPEECH OR ASSEMBLY. 
GOVERNMENTAL AUTHORITIES HAVE THE DUTY AND RESPONSIBILITY TO KEEP THEIR
STREETS OPEN AND AVAILABLE FOR MOVEMENT.  A GROUP OF DEMONSTRATORS
COULD NOT INSIST UPON THE RIGHT TO CORDON OFF A STREET, OR ENTRANCE TO
A PUBLIC OR PRIVATE BUILDING, AND ALLOW NO ONE TO PASS WHO DID NOT
AGREE TO LISTEN TO THEIR EXHORTATIONS."    BUT SUCH EXAMPLES ARE A FAR
CRY FROM WHAT HAPPENED HERE.  JURETHA JOYNER, A NEGRO, WENT WITH SOME
FRIENDS TO CELEBRATE "ALL NATIONS DAY" AT GWYNN OAK PARK.  DESPITE THE
FACTS THAT SHE BEHAVED WITH COMPLETE ORDER AND DIGNITY, AND THAT HER
RIGHT TO BE AT THE PARK IS PROTECTED BY FEDERAL LAW, SHE WAS ASKED TO
LEAVE, SOLELY BECAUSE OF HER RACE.  SHE REFUSED AND, UPON BEING
HANDCUFFED, DISPLAYED SOME RELUCTANCE (THOUGH NO ACTIVE RESISTANCE) TO
BEING PULLED THROUGH AN ACTIVELY HOSTILE MOB.  FOR THIS SHE WAS
CONVICTED OF "ACTING IN A DISORDERLY MANNER, TO THE DISTURBANCE OF THE
PUBLIC PEACE."  TODAY THE COURT DECLINES TO REVIEW HER CONVICTION, AND
THE CONVICTIONS OF HER THREE COMPANIONS.  I CANNOT JOIN. 

FN1  I AGREE WITH APPELLEE THAT THIS IS NOT A PROPER APPEAL. 
HOWEVER, IN 28 U.S.C.  SEC. 2103 (1958 ED., SUPP. V), CONGRESS HAS
PROVIDED, IN PERTINENT PART: 

"IF AN APPEAL TO THE SUPREME COURT IS IMPROVIDENTLY TAKEN FROM THE
DECISION OF THE HIGHEST COURT OF A STATE, OR OF A UNITED STATES COURT
OF APPEALS, IN A CASE WHERE THE PROPER MODE OF A REVIEW IS BY PETITION
FOR CERTIORARI, THIS ALONE SHALL NOT BE GROUND FOR DISMISSAL; BUT THE
PAPERS WHEREON THE APPEAL WAS TAKEN SHALL BE REGARDED AND ACTED ON AS A
PETITION FOR WRIT OF CERTIORARI AND AS IF DULY PRESENTED TO THE SUPREME
COURT AT THE TIME THE APPEAL WAS TAKEN." 

FN2  SECTION 123 PROVIDES, IN PERTINENT PART: 

"DRUNKENNESS AND DISORDERLY CONDUCT GENERALLY; HABITUAL OFFENDERS. 

"EVERY PERSON WHO SHALL BE FOUND DRUNK, OR ACTING IN A DISORDERLY
MANNER TO THE DISTURBANCE OF THE PUBLIC PEACE, (IN ANY OF A NUMBER OF
SPECIFIED LOCATIONS, INCLUDING PLACES OF PUBLIC RESORT OR AMUSEMENT)
SHALL BE DEEMED GUILTY OF A MISDEMEANOR; AND, UPON CONVICTION THEREOF,
SHALL BE SUBJECT TO A FINE OF NOT MORE THAN FIFTY DOLLARS, OR BE
CONFINED IN JAIL FOR A PERIOD OF NOT MORE THAN SIXTY DAYS OR BE BOTH
FINED AND IMPRISONED IN THE DISCRETION OF THE COURT  ...  ." 

FN3  THIS COURT HAS NEVER (AND I HOPE IT NEVER DOES) LET THE FACT
THAT THE CRIMINAL PENALTY IS RELATIVELY SMALL STAND IN THE WAY OF
REVIEWING A CASE PRESENTING IMPORTANT CONSTITUTIONAL QUESTIONS.   E.G.,
THOMPSON V. LOUISVILLE, 362 U.S. 199, 203-204 ($10 FINE); YICK WO V.
HOPKINS, 118 U.S. 356 ($10 FINE). 

FN4  COMPARE COX V. LOUISIANA, 379 U.S. 536, 551-552. 

FN5  IN GARNER THE COURT NOTED THAT THE RECORD DID NOT SUPPORT THE
ALLEGATION THAT THE TRIAL JUDGE HAD TAKEN JUDICIAL NOTICE OF THE FACT
THAT THE PETITIONERS' PRESENCE IN A SEGREGATED ESTABLISHMENT WAS LIKELY
TO CAUSE A DISTURBANCE.  368 U.S., AT 173.  NEITHER THE TRIAL
TRANSCRIPT IN THE INSTANT CASE NOR THE TRIAL JUDGE'S MEMORANDUM OPINION
INDICATES THAT HE TOOK THAT SORT OF NOTICE HERE. 

FN6  IT IS FAR FROM CLEAR THAT THE ARREST WAS LAWFUL.  IN VIEW OF THE
FACT THAT SEC. 24-13 OF THE BALTIMORE COUNTY CODE (1958) AUTHORIZES THE
APPOINTMENT OF SPECIAL POLICE OFFICERS "FOR THE PROPER PROTECTION OF
PERSONS AND PROPERTY IN THE COUNTY," IT MAY WELL BE THAT THE GUARD WHO
ASKED PETITIONERS TO LEAVE THE PARK ENJOYED THE SAME STATUS AS THE
OFFICER INVOLVED IN GRIFFIN V. MARYLAND, 378 U.S. 130.  WHEN THIS CASE
WAS HERE THE FIRST TIME, WE REMANDED IT FOR CONSIDERATION IN LIGHT OF
GRIFFIN.  HOWEVER, ONLY JUDGE OPPENHEIMER, DISSENTING, DREW FROM OUR
REMAND THE MEANING THAT, UNTIL TODAY, I TOO HAD THOUGHT IT WAS SUPPOSED
TO CARRY, AND VOTED TO REMAND THE CASE TO THE TRIAL COURT FOR AN
INVESTIGATION OF THE RELATION BETWEEN THE GUARD AND THE COUNTY: 

"IF WOOD, THE 'SPECIAL OFFICER' IN THIS CASE, HAD VIRTUALLY THE SAME
AUTHORITY FROM BALTIMORE COUNTY THAT COLLINS (THE GUARD INVOLVED IN
GRIFFIN) HAD FROM MONTGOMERY COUNTY  ...  THEN UNDER GRIFFIN V.
MARYLAND, SUPRA, THE STATE WAS A JOINT PARTICIPANT IN THE
DISCRIMINATORY ACTION. 

     *         *         *         *         * 

"THE BALTIMORE COUNTY CODE AUTHORIZES THE COUNTY TO APPOINT SPECIAL
POLICE OFFICERS TO SERVE FOR PRIVATE PERSONS OR CORPORATIONS. 
BALTIMORE COUNTY CODE, SECTIONS 24-13 AND 35-3 (1958).  I WOULD REMAND
THIS CASE TO THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR THE TAKING OF
ADDITIONAL TESTIMONY TO DETERMINE WHETHER OR NOT WOOD WAS APPOINTED BY
BALTIMORE COUNTY UNDER THESE SECTIONS OF ITS CODE.  IF HE WAS, THE
CONVICTIONS SHOULD BE REVERSED."  236 MD., AT 355; 204 A.2D, AT 68
(OPPENHEIMER, J., DISSENTING). 

THUS WE STILL DO NOT KNOW WHETHER THE GUARD'S ACTION CONSTITUTED
STATE ACTION, THEREBY RENDERING HIS COMMAND TO LEAVE THE PARK
UNCONSTITUTIONAL.  YET IT IS AXIOMATIC THAT "ONE CANNOT BE PUNISHED FOR
FAILING TO OBEY THE COMMAND OF AN OFFICER IF THAT COMMAND IS ITSELF
VIOLATIVE OF THE CONSTITUTION."  WRIGHT V. GEORGIA, 373 U.S. 284, 291
292.  MOREOVER, A STRONG ARGUMENT CAN BE MADE THAT, UNDER MARYLAND LAW,
RESISTING AN UNLAWFUL ARREST DOES NOT CONSTITUTE DISORDERLY CONDUCT. 
SEE SHARPE V. STATE, 231 MD. 401, 403, 404, 190 A.2D 628, 630, CERT.
DENIED, 375 U.S. 946. 

FN7  WITH THE CONDUCT OF PETITIONERS HEREIN, COMPARE THAT OF THE
DEFENDANTS IN SHARPE V. STATE, SUPRA, NOTE 6, AND IN RE CROMWELL, 232
MD. 409, 194 A.2D 88.  ALSO, COMPARE NIEMOTKO V. STATE, 194 MD. 247,
250, 71 A.2D 9, 10, WITH NIEMOTKO V. MARYLAND, 340 U.S. 268, 271. 

FN8  WHETHER OR NOT PETITIONERS' CONDUCT WOULD SUPPORT A CONVICTION
FOR SOMETHING OTHER THAN DISTURBING THE PEACE I DO NOT KNOW.  NOR DO I
INQUIRE, FOR "CONVICTION UPON A CHARGE NOT MADE WOULD BE SHEER DENIAL
OF DUE PROCESS."  DE JONGE V. OREGON, 299 U.S. 353, 362.  SEE ALSO
GARNER V. LOUISIANA, 368 U.S. 157, 164; THOMPSON V. LOUISVILLE, 362
U.S. 199, 206; COLE V. ARKANSAS, 333 U.S. 196, 201. 

FN9  IT SEEMS TO ME THAT THE PERSONS WHO WERE IN FACT GUILTY OF
DISORDERLY CONDUCT WERE THE MEMBERS OF THE CROWD; HOWEVER, NONE OF THEM
WAS PROSECUTED. 

FN10  THERE IS A RESTAURANT AT GWYNN OAK PARK; INDEED, PETITIONERS
WERE STANDING NEXT TO IT WHEN THEY WERE ARRESTED.  IF A SUBSTANTIAL
PORTION OF THE FOOD SERVED IN THAT RESTAURANT HAS MOVED IN INTERSTATE
COMMERCE, THE ENTIRE AMUSEMENT PARK IS A PLACE OF PUBLIC ACCOMMODATION
UNDER THE ACT.  SECS. 201(B)(2), 201(B)(4), 201(C).  SEE ALSO SEC.
201(B)(3).  IF THE COURT WERE UNWILLING TO ASSUME THAT THE RESTAURANT
SERVES A SUBSTANTIAL PORTION OF SUCH FOOD, THE PROPER COURSE WOULD BE
TO REMAND THE CASE FOR A HEARING ON THE ISSUE.  SINCE THE COURT DENIES
CERTIORARI, I ASSUME THAT IT IS FOR SOME OTHER REASON THAT IT REGARDS
PETITIONERS' CONDUCT AS NOT PROTECTED BY THE ACT.  I FURTHER ASSUME
THAT THE FACT THAT THREE OF THE PETITIONERS ARE WHITE IS NOT THE
DECISIVE FACTOR, CF. WALKER V. GEORGIA, ANTE, P. 355, SINCE CERTIORARI
IS DENIED AS TO THE NEGRO PETITIONER TOO. 
..END :




TRAVIA V. LOMENZO, SECRETARY OF STATE OF NEW YORK 381 U.S. 431 


NO. 1218.  DECIDED JUNE 1, 1965 - MOTION TO ACCELERATE APPEAL AND
APPLICATION FOR A STAY DENIED. 


TRAVIA ET AL. V. LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO ACCELERATE THE APPEAL IS DENIED.  THE APPLICATION FOR A
STAY, ADDRESSED TO MR. JUSTICE HARLAN AS CIRCUIT JUSTICE AND REFERRED
BY HIM TO THE COURT FOR CONSIDERATION UNDER RULE 50(6), IS DENIED. 

MR. JUSTICE HARLAN, DISSENTING. 

AN APPLICATION HAS BEEN MADE TO ME, AS CIRCUIT JUSTICE, FOR A STAY
PENDING APPEAL FROM AN ORDER OF A THREE-JUDGE DISTRICT COURT, DATED MAY
24, 1965, ORDERING NEW YORK TO HOLD A SPECIAL LEGISLATIVE ELECTION ON
NOVEMBER 2, 1965, UNDER THE ELECTORAL SCHEME EMBODIED IN
REAPPORTIONMENT "PLAN A" (FN1) PASSED BY THE NEW YORK LEGISLATURE,
SIGNED BY THE GOVERNOR, AND HELD UNCONSTITUTIONAL UNDER THE STATE
CONSTITUTION BY THE NEW YORK COURT OF APPEALS.  THE STAY APPLICATION
WAS ACCOMPANIED BY A MOTION, ADDRESSED TO THE COURT, ASKING FOR AN
ACCELERATION AND IMMEDIATE HEARING OF THE APPEAL, TO WHICH THE RELIEF
SOUGHT FROM ME IS INCIDENT.  BECAUSE THE STAY AND ACCELERATION
QUESTIONS WERE IN MY OPINION INEXTRICABLY RELATED AND INVOLVED ISSUES
OF FAR-REACHING IMPORTANCE, I REFERRED THE STAY APPLICATION TO THE FULL
COURT FOR DETERMINATION (SEE SUP. CT. RULE 50(6)) IN CONJUNCTION WITH
THE MOTION TO ACCELERATE THE APPEAL.  THE COURT NOW DENIES BOTH THE
STAY AND MOTION TO ACCELERATE, AND I RESPECTFULLY DISSENT. 

"PLAN A" WAS ONE OF FOUR ALTERNATIVE REAPPORTIONMENT PLANS PASSED BY
THE NEW YORK LEGISLATURE UNDER THE IMPACT OF AN ORDER OF THE DISTRICT
COURT, DATED JULY 27, 1964, ENTERED PURSUANT TO THIS COURT'S DECISION
IN WMCA, INC. V. LOMENZO, 377 U.S. 633, WHICH HELD NEW YORK'S THEN
EXISTING METHOD OF LEGISLATIVE APPORTIONMENT VIOLATIVE OF THE
FOURTEENTH AMENDMENT.  THE DISTRICT COURT ORDER PROVIDED BY WAY OF
INTERIM RELIEF THAT (1) THE NOVEMBER 1964 LEGISLATIVE ELECTIONS COULD
PROCEED UNDER THE INVALIDATED APPORTIONMENT SYSTEM, BUT THE LEGISLATORS
WOULD BE PERMITTED TO SERVE FOR ONLY A ONE-YEAR PERIOD, INSTEAD OF THE
TWO-YEAR TERM PROVIDED IN THE STATE CONSTITUTION; (2) A SPECIAL
NOVEMBER 1965 ELECTION MUST BE HELD UNDER A CONSTITUTIONALLY VALID
APPORTIONMENT PLAN TO BE ENACTED BY THE NEW YORK LEGISLATURE AND
SUBMITTED TO THE DISTRICT COURT FOR APPROVAL NOT LATER THAN APRIL 1,
1965 (LATER EXTENDED TO MAY 5, 1965), THE LEGISLATORS SO ELECTED AGAIN
TO SERVE FOR ONLY ONE YEAR; AND (3) THE REGULARLY SCHEDULED NOVEMBER
1966 ELECTION, FOR A NORMAL TWO-YEAR TERM, WOULD BE HELD UNDER THE SAME
OR SOME OTHER COURT-APPROVED REAPPORTIONMENT PLAN.  THIS COURT
SUMMARILY AFFIRMED THE DISTRICT COURT'S ORDER.  HUGHES V. WMCA, INC.,
379 U.S. 694.  TWO DISSENTING JUSTICES WOULD HAVE SET THE CASE FOR
PLENARY CONSIDERATION, AND TWO CONCURRING JUSTICES EXPRESSLY NOTED THAT
THE COURT'S ACTION DID NOT FORECLOSE THE DISTRICT COURT FROM MODIFYING
ITS INTERIM ORDER IN LIGHT OF SUBSEQUENT DEVELOPMENTS. 

IN DECEMBER 1964 THE 1964 LEGISLATURE, MEETING IN SPECIAL SESSION,
PASSED AND THE GOVERNOR SIGNED FOUR ALTERNATIVE REAPPORTIONMENT PLANS,
ONE OF WHICH, "PLAN A," IS INVOLVED IN THE MATTER NOW BEFORE US.  ON
JANUARY 26, 1965, THE THREE-JUDGE DISTRICT COURT FOUND THAT "PLAN A"
SATISFIED FEDERAL CONSTITUTIONAL REQUIREMENTS, BUT THAT EACH OF THE
OTHER PLANS DID NOT.  238 F. SUPP. 916.  ON APRIL 14, 1965, THE NEW
YORK COURT OF APPEALS HELD ALL FOUR PLANS INVALID UNDER THE STATE
CONSTITUTION, IN THAT EACH PROVIDED FOR AN ASSEMBLY OF MORE THAN 150
MEMBERS, THUS EXCEEDING THE MEMBERSHIP LIMIT PRESCRIBED BY THE NEW YORK
CONSTITUTION, ART. 3, SEC. 2.  IN RE ORANS, 15 N.Y.2D 339, 206 N.E.2D
854. 

IGNORING THE NEW YORK COURT OF APPEALS' HOLDING THAT PLAN A VIOLATED
THE STATE CONSTITUTION, A MAJORITY OF THE DISTRICT COURT, ON MAY 18,
1965, ORDERED THE NOVEMBER 1965 STATE LEGISLATIVE ELECTION TO PROCEED
UNDER THAT PLAN.  ONE JUDGE DISSENTED, CONSIDERING THAT A MORE
APPROPRIATE, THOUGH ADMITTEDLY NOT WHOLLY SATISFACTORY, "INTERIM"
SOLUTION WOULD BE TO PERMIT THE NOVEMBER 1965 ELECTION TO GO FORWARD
UNDER THE OLD REAPPORTIONMENT FORMULA, WITH THE LEGISLATORS THUS
ELECTED BEING ACCORDED "WEIGHTED VOTES" IN THE LEGISLATURE BASED ON
POPULATION. 

ON MAY 24, 1965, THE STATE LEGISLATURE PASSED THREE BILLS, THE
SUBSTANTIAL EFFECTS OF WHICH WERE (1) TO ADOPT THE DISSENTING DISTRICT
JUDGE'S WEIGHTED VOTING FORMULA FOR THE 1966 LEGISLATIVE SESSION,
WITHOUT HOLDING AN ELECTION THIS FALL; (FN2) (2) TO CREATE A BI
PARTISAN COMMISSION TO DEVISE A NEW REAPPORTIONMENT FORMULA FOR THE
1966 ELECTION, MEETING BOTH FEDERAL AND STATE CONSTITUTIONAL
REQUIREMENTS; (FN3) AND (3) TO ISSUE A CALL FOR A CONSTITUTIONAL
CONVENTION TO PROMULGATE A PERMANENT REAPPORTIONMENT PLAN TO GOVERN THE
1968 AND SUBSEQUENT ELECTIONS.  (FN4)  THE SPEAKER OF THE ASSEMBLY AND
THE PRESIDENT PRO TEM OF THE STATE SENATE (THE INTERVENORS-APPELLANTS
HERE) THEREUPON SOUGHT LEAVE TO INTERVENE IN THE DISTRICT COURT
PROCEEDINGS AND TO PERSUADE THE COURT TO MODIFY THE INTERIM RELIEF IN
ACCORDANCE WITH THESE LEGISLATIVE PROPOSALS.  THEIR APPLICATION FOR
LEAVE TO INTERVENE WAS GRANTED, BUT THE DISTRICT COURT REFUSED TO
MODIFY ITS EARLIER ORDER.  THESE APPLICATIONS FOR A STAY AND
ACCELERATED APPEAL FOLLOWED IMMEDIATELY. 

THESE MATTERS BRISTLE WITH DIFFICULT AND IMPORTANT QUESTIONS THAT
TOUCH THE NERVE CENTERS OF THE SOUND OPERATION OF OUR FEDERAL AND STATE
JUDICIAL AND POLITICAL SYSTEMS.  THEY INVOLVE, AMONG OTHER THINGS, THE
RIGHT OF A FEDERAL COURT TO ORDER THAT ONE HOUSE OF A STATE LEGISLATURE
SHALL TEMPORARILY BE OF GREATER SIZE THAN IS PERMITTED BY THE STATE
CONSTITUTION.  SURELY SUCH QUESTIONS ARE DESERVING OF PLENARY
CONSIDERATION AND REASONED EXPLICATION.  BY DENYING A STAY AND REFUSING
TO ACCELERATE THIS APPEAL, THE COURT, INSTEAD, HAS IN EFFECT DECIDED
THEM NOT ONLY SUMMARILY BUT ALSO SUB SILENTIO.  FOR WHILE THE DENIAL OF
A STAY DOES NOT TECHNICALLY MOOT THE APPEAL, IT IS MANIFEST THAT SUCH
IS THE PRACTICAL EFFECT OF THE COURT'S ACTION, SINCE IN NORMAL COURSE
THE APPEAL WILL NOT EVEN BE HEARD UNTIL AFTER THE PRESENTLY ORDERED
NOVEMBER ELECTION HAS TAKEN PLACE. 

WITHOUT PREJUDGING THE QUESTION, THE PROPRIETY OF A FEDERAL COURT'S
ORDERING A STATE ELECTION TO PROCEED UNDER A PLAN WHICH THE HIGHEST
COURT OF THE STATE HAS FOUND TO VIOLATE THE STATE CONSTITUTION IN
RESPECTS NOT CLAIMED TO BE VIOLATIVE OF THE FEDERAL CONSTITUTION, WHEN
A NUMBER OF ALTERNATIVES ARE AVAILABLE, RAISES WHAT I CONSIDER TO BE
VERY SERIOUS FEDERAL QUESTIONS WHICH THIS COURT SHOULD AT LEAST HEAR. 
ALL PARTIES HAVE SHOWN THEMSELVES WILLING TO ARGUE THE CASE PROMPTLY. 
I WOULD SET THE CASE FOR IMMEDIATE ARGUMENT, AND WOULD HAVE THE COURT
RENDER ITS DECISION ON THE STAY PROMPTLY THEREAFTER, WITH OPINIONS ON
THE MERITS OF THE CONTROVERSY TO FOLLOW IN DUE COURSE.  COMPARE COOPER
V. AARON, 358 U.S. 1.  (FN5) 

I AM WHOLLY AT A LOSS TO UNDERSTAND THE COURT'S CASUAL WAY OF
DISPOSING OF THIS MATTER AND I CAN FIND NO CONSIDERATIONS OF ANY KIND
WHICH JUSTIFY IT.  THE COURT SHOULD BE WILLING TO FACE UP ARTICULATELY
TO THESE DIFFICULT PROBLEMS WHICH HAVE FOLLOWED AS A NOT UNNATURAL
AFTERMATH OF ITS REAPPORTIONMENT DECISIONS OF LAST TERM. 

FN1  NEW YORK LAWS 1964, C. 976.  AT THE SAME TIME THE LEGISLATURE
PASSED THREE SUCCESSIVE AMENDMENTS TO C. 976:  NEW YORK LAWS 1964, CC.
977-978 (PLAN "B"), C. 979 (PLAN "C"), AND C. 981 (PLAN "D").  THESE
FOUR ACTS HAVE BEEN REFERRED TO THROUGHOUT THE PROCEEDINGS AS PLANS A,
B, C, AND D. 

FN2  NEW YORK ASSEMBLY INTRO.  6051, PRINT.  7067, VETOED BY THE
GOVERNOR ON MAY 27, 1965. 

FN3  NEW YORK ASSEMBLY INTRO.  6050, PRINT.  7066, VETOED BY THE
GOVERNOR ON MAY 27, 1965. 

FN4  NEW YORK ASSEMBLY INTRO.  5695, PRINT.  5988. 

FN5  THE NECESSITY FOR A PROMPT DISPOSITION IS EVIDENCED BY THE FACT
THAT THE STATE'S PRIMARY MACHINERY MUST BE SET IN MOTION TODAY IF AN
ELECTION NEXT NOVEMBER IS TO TAKE PLACE. 
..END :

















MOTOR CONVOY, INC. V. UNITED STATES 381 U.S. 436 


NO. 987.  DECIDED JUNE 1, 1965.  - 235 F. SUPP. 250, AFFIRMED. 


MOTOR CONVOY, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















FOX V. UNITED STATES 381 U.S. 436 


NO. 1032.  DECIDED JUNE 1, 1965.  - AFFIRMED. 


FOX V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















FEDERAL COMMUNICATIONS COMMISSION V. SCHREIBER 381 U.S. 279 


NO. 482.  ARGUED APRIL 27, 1965.  - DECIDED MAY 24, 1965.  - 329 F.2D
517, MODIFIED AND REMANDED. 


TO SECURE COMPREHENSIVE INFORMATION ABOUT VARIOUS PRACTICES IN THE
TELEVISION INDUSTRY, THE FEDERAL COMMUNICATIONS COMMISSION INITIATED AN
INVESTIGATORY PROCEEDING PURSUANT TO SEC. 403 OF THE COMMUNICATIONS
ACT.  THE PRESIDING OFFICER, ASSIGNED TO CONDUCT THE PROCEEDING, WAS
AUTHORIZED BY THE COMMISSION TO SUBPOENA WITNESSES AND TO COMPEL THE
PRODUCTION OF ANY RECORDS OR DOCUMENTS DEEMED RELEVANT.  THE
PROCEEDINGS WERE TO BE PUBLIC UNLESS THE PRESIDING OFFICER FOUND THAT
"THE PUBLIC INTEREST, THE PROPER DISPATCH OF THE BUSINESS  ...  OR THE
ENDS OF JUSTICE" WOULD BE SERVED BY NONPUBLIC SESSIONS.  THE PRESIDING
OFFICER ISSUED A SUBPOENA DUCES TECUM DIRECTING RESPONDENT SCHREIBER,
AN EXECUTIVE OF RESPONDENT MUSIC CORPORATION OF AMERICA, INC. (MCA), TO
PRODUCE LISTS OF NETWORK PROGRAMS WHICH MCA HAD PRODUCED (ANNEX A TO
SUBPOENA) OR PACKAGED (ANNEX B).  RESPONDENT SCHREIBER PRODUCED THE
MATERIAL CALLED FOR IN ANNEX A, BUT, CLAIMING THAT PUBLIC DISCLOSURE OF
THE ANNEX B INFORMATION MIGHT REVEAL TRADE SECRETS AND CONFIDENTIAL
DATA, REFUSED TO PRODUCE SAID INFORMATION UNLESS ASSURED THAT IT WOULD
BE RECEIVED AND HELD IN CONFIDENCE.  THE PRESIDING OFFICER REJECTED THE
DEMAND.  THE FULL COMMISSION UPHELD THE PRESIDING OFFICER AND
REAFFIRMED ITS RESOLVE TO PERMIT NONPUBLIC SESSIONS ONLY IN
EXTRAORDINARY SITUATIONS WHERE IT WAS SHOWN THAT IRREPARABLE DAMAGE TO
PRIVATE COMPETITIVE INTERESTS OUTWEIGHED THE PUBLIC INTEREST IN
DISCLOSURE.  THE COMMISSION NOTED THAT THE PRESIDING OFFICER HAD ACTED
CONSISTENTLY WITH THAT STANDARD AND HELD THAT RESPONDENTS' CLAIM OF
LIKELY COMPETITIVE INJURY WAS UNSUPPORTED BY THE PLEADINGS AND CONTRARY
TO THE RECORD.  UPON REMAND, THE PRESIDING OFFICER REJECTED
RESPONDENTS' BROADENED CLAIM FOR CONFIDENTIAL TREATMENT OF ALL
INFORMATION TO BE ELICITED FROM THEM, BUT RESPONDENT SCHREIBER
PERSISTED IN HIS REFUSAL TO COMPLY WITH THE COMMISSION'S ORDERS AND
SUBPOENA.  THE DISTRICT COURT GRANTED THE COMMISSION'S PETITION FOR
ENFORCEMENT, BUT, "TO PRECLUDE DISCLOSURE OF TRADE SECRETS OF WHICH
MCA'S COMPETITORS MIGHT TAKE ADVANTAGE" ORDERED THAT THE MATERIAL BE
RECEIVED AND HELD IN CONFIDENCE.  THE COURT'S ORDER FURTHER PROVIDED
THAT AFTER THE INVESTIGATION OF RESPONDENTS HAD BEEN COMPLETED, THE
COMMISSION COULD MOVE THE COURT, UPON GOOD CAUSE, FOR AN ORDER
PERMITTING SUCH TESTIMONY AND DOCUMENTS TO BE MADE PUBLIC.  THE COURT
OF APPEALS AFFIRMED, HOLDING THAT THE DISTRICT COURT HAD NOT ABUSED ITS
DISCRETION IN CONDITIONING THE ENFORCEMENT OF THE COMMISSION'S SUBPOENA
AND ORDERS.  HELD: 

1.  UNDER THE BROAD DELEGATION OF PROCEDURAL RULE-MAKING AUTHORITY IN
SEC. 4(J) OF THE COMMUNICATIONS ACT, WHICH AUTHORIZES THE COMMISSION TO
"CONDUCT ITS PROCEEDINGS IN SUCH A MANNER AS WILL BEST CONDUCE TO THE
PROPER DISPATCH OF BUSINESS AND TO THE ENDS OF JUSTICE," THE COMMISSION
WAS EMPOWERED TO PROMULGATE THE PROCEDURAL RULE REQUIRING PUBLIC
PROCEEDINGS EXCEPT WHERE THE PROPONENTS OF A REQUEST FOR IN CAMERA
TREATMENT HAVE DEMONSTRATED THE NEED THEREFOR.  PP. 289-294. 

2.  IN PROVIDING FOR JUDICIAL REVIEW OF ADMINISTRATIVE RULE-MAKING,
CONGRESS HAS NOT EMPOWERED DISTRICT COURTS TO SUBSTITUTE THEIR JUDGMENT
FOR THAT OF THE AGENCY; INSTEAD, JUDICIAL RESPONSIBILITY IS LIMITED TO
INSURING CONSISTENCY WITH GOVERNING STATUTES AND THE DEMANDS OF THE
CONSTITUTION.  PP. 290-291. 

3.  THE COMMISSION DID NOT ABUSE ITS DISCRETION IN APPLYING ITS
PROCEDURAL RULE AND IN REJECTING RESPONDENTS' REQUESTS FOR CONFIDENTIAL
TREATMENT OF ALL MATERIALS TO BE ELICITED IN THE FUTURE, PP. 295-298,
AND FOR CONFIDENTIAL TREATMENT OF THE ANNEX B INFORMATION, PP.  298
300. 

FEDERAL COMMUNICATIONS COMMISSION V. SCHREIBER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

AT ISSUE IN THIS CASE ARE THE EXTENT OF THE FEDERAL COMMUNICATIONS
COMMISSION'S AUTHORITY TO PROMULGATE PROCEDURAL STANDARDS FOR
DETERMINING WHETHER TESTIMONY TAKEN AND DOCUMENTS PRODUCED DURING AN
INVESTIGATORY PROCEEDING SHOULD BE ACCORDED CONFIDENTIAL TREATMENT, AND
THE SCOPE OF JUDICIAL REVIEW OF DETERMINATIONS MADE PURSUANT TO SUCH
STANDARDS. 

THIS CASE HAD ITS ORIGIN IN A SUBPOENA AND VARIOUS ORDERS ISSUED
DURING THE COURSE OF AN INVESTIGATORY PROCEEDING CONDUCTED BY THE
FEDERAL COMMUNICATIONS COMMISSION PURSUANT TO SEC. 403 OF THE
COMMUNICATIONS ACT OF 1934, AS AMENDED, 48 STAT. 1094, 47 U.S.C. SEC.
403 (1958 ED.).  (FN1) THE PROCEEDING, FINANCED BY SPECIFIC
CONGRESSIONAL APPROPRIATION, (FN2) WAS INITIATED ON FEBRUARY 26, 1959,
AND HAD AS ITS OBJECTIVE THE GATHERING OF: 

"COMPREHENSIVE INFORMATION CONCERNING THE RESPECTIVE ROLES PLAYED BY
THE NETWORKS, ADVERTISERS, AGENCIES, TALENT, FILM PRODUCERS AND
DISTRIBUTORS, AND OTHER MAJOR ELEMENTS IN THE TELEVISION INDUSTRY." 
(FN3) 

AS AN INITIAL STEP IN THE INVESTIGATION, THE COMMISSION ORDERED THAT
AN: 

"INQUIRY BE MADE TO DETERMINE THE POLICIES AND PRACTICES PURSUED BY
THE NETWORKS AND OTHERS IN THE ACQUISITION, OWNERSHIP, PRODUCTION,
DISTRIBUTION, SELECTION, SALE AND LICENSING OF PROGRAMS FOR TELEVISION
EXHIBITION, AND THE REASONS AND NECESSITY IN THE PUBLIC INTEREST FOR
SAID POLICIES AND PRACTICES  ...  ."  (FN4) 

THE COMMISSION AUTHORIZED ITS CHIEF HEARING EXAMINER TO CONDUCT THE
INVESTIGATION.  HE WAS EMPOWERED, INTER ALIA, TO SUBPOENA WITNESSES,
COMPEL THEIR ATTENDANCE, AND REQUIRE THE PRODUCTION OF ANY RECORDS OR
DOCUMENTS DEEMED RELEVANT TO THE INQUIRY.  (FN5)  THE COMMISSION
ORDERED THAT: 

"SAID INVESTIGATORY PROCEEDING SHALL BE A PUBLIC PROCEEDING EXCEPT
THAT THE SAID PRESIDING OFFICER MAY ORDER NON-PUBLIC SESSIONS OF THE
SAID INVESTIGATORY PROCEEDING WHERE AND TO THE EXTENT THAT THE PUBLIC
INTEREST, THE PROPER DISPATCH OF THE BUSINESS OF SAID PROCEEDING, OR
THE ENDS OF JUSTICE WILL BE SERVED THEREBY."  (FN6) 

IN OCTOBER 1960, PUBLIC SESSIONS WERE HELD IN LOS ANGELES,
CALIFORNIA, AT WHICH TIME EVIDENCE WAS RECEIVED CONCERNING THE
FUNCTIONS, POLICIIES AND PRACTICES OF TELEVISION COMPANIES, TALENT
AGENCIES AND REPRESENTATIVES, PROGRAM "PACKAGERS," (FN7) SALES
REPRESENTATIVES, AND OTHERS.  ON OCTOBER 17, 1960, THE PRESIDING
OFFICER ISSUED A SUBPOENA DUCES TECUM TO RESPONDENT SCHREIBER, A VICE
PRESIDENT OF RESPONDENT MUSIC CORPORATION OF AMERICA, INC. (MCA) - ONE
OF THE LARGEST PACKAGERS AND PRODUCERS OF NETWORK TELEVISION PROGRAMS,
(FN8) DIRECTING HIM TO APPEAR AT THE HEARING AND TO PRODUCE CERTAIN
DOCUMENTS DESCRIBED IN THE ANNEXES TO THE SUBPOENA.  RESPONDENT
SCHREIBER APPEARED AND PRODUCED THE MATERIAL SPECIFIED IN ANNEX A.
(FN9)  HE REFUSED, HOWEVER, TO SUBMIT WITHOUT QUALIFICATION THE
MATERIAL CALLED FOR IN ANNEX B, (FN10) WHICH INCLUDED A LIST OF THE
PROGRAMS PACKAGED BY MCA.  RESPONDENT SCHREIBER STATED THAT HE WOULD
PRODUCE THE SUBPOENAED MATERIALS ONLY "IF THE COMMISSION WILL TAKE THIS
INFORMATION AND ASSURE US THAT IT WILL BE HELD IN CONFIDENCE, WILL NOT
BE PUBLISHED, AND WILL NOT BE MADE AVAILABLE TO OTHER PEOPLE, OTHER
THAN THOSE ON THE COMMISSION, AND THAT SERVE THE COMMISSION."  AS
GROUNDS FOR CONFIDENTIAL TREATMENT, HE ASSERTED THAT THE INFORMATION
SOUGHT MIGHT DISCLOSE TRADE SECRETS AND CONFIDENTIAL DATA, AND THAT THE
INFORMATION WAS OUTSIDE THE SCOPE OF THE HEARING.  HE ALSO OBJECTED
GENERALLY TO THE PROCEDURES GOVERNING THE HEARING ON THE GROUND THAT
THEY WOULD REQUIRE "PUBLIC DISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL
DATA OF MY COMPANY WHICH MIGHT BE OF AID TO ITS MANY COMPETITORS IN
THIS HIGHLY COMPETITIVE TELEVISION INDUSTRY."  THE PRESIDING OFFICER
FOUND "NO DOUBT" AS TO THE RELEVANCE OF THE MATERIAL AND REJECTED, AS
"WITHOUT MERIT," THE CLAIM THAT THE INFORMATION SHOULD BE RECEIVED IN
CONFIDENCE. 

RESPONDENTS THEN PETITIONED THE COMMISSION FOR REVIEW.  ON JANUARY
25, 1961, THE COMMISSION AFFIRMED THE PRESIDING OFFICER AND ORDERED
RESPONDENTS TO APPEAR, TESTIFY AND PRODUCE THE MATERIAL SUBPOENAED AT A
RECONVENED HEARING.  IN ITS OPINION THE COMMISSION STRESSED THE
IMPORTANCE OF PUBLICIZING THE INFORMATION GATHERED DURING THE COURSE OF
THE INVESTIGATION (FN11) AND REAFFIRMED ITS RESOLVE TO PERMIT IN CAMERA
SESSIONS ONLY IN EXTRAORDINARY SITUATIONS: 

"WE DETERMINED THAT PUBLIC PROCEEDINGS SHOULD BE THE RULE HEREIN, AND
THAT NON-PUBLIC PROCEDURES SHOULD BE USED ONLY IN THOSE EXTRAORDINARY
INSTANCES WHERE DISCLOSURE WOULD IRREPARABLY DAMAGE PRIVATE,
COMPETITIVE INTERESTS AND WHERE SUCH INTERESTS COULD BE FOUND BY THE
PRESIDING OFFICER TO OUTWEIGH THE PARAMOUNT INTEREST OF THE PUBLIC AND
THE COMMISSION IN FULL PUBLIC DISCLOSURE." 

THE COMMISSION NOTED THAT THE PRESIDING OFFICER AND COMMISSION
COUNSEL HAD MADE "EVERY EFFORT TO AVOID PUBLIC DISCLOSURE OF DETAILED
INTERNAL FINANCIAL INFORMATION OR DETAILED CONTRACTUAL ARRANGEMENTS
WHICH MIGHT IN FACT IRREPARABLY HARM PRIVATE INTERESTS WITHOUT
SUFFICIENT COMPENSATING BENEFIT TO THE PUBLIC," AND FOUND THAT THEY HAD
NOT DEPARTED FROM THIS STANDARD IN REJECTING RESPONDENTS' CLAIM OF
LIKELY COMPETITIVE HARM WHICH, THE COMMISSION HELD, WAS "TOTALLY
UNSUPPORTED BY THEIR PLEADINGS AND CONTRARY TO THE RECORD." 
ACCORDINGLY, THE COMMISSION ORDERED RESPONDENTS "TO TESTIFY  ...
REGARDING ALL MATTERS DEEMED RELEVANT BY SAID PRESIDING OFFICER," AND
TO PRODUCE THE INFORMATION REQUIRED BY THE SUBPOENA AND "SUCH OTHER
INFORMATION AND DATA AS MAY BE DEEMED RELEVANT AND ORDERED OR DIRECTED
TO BE PRODUCED BY THE SAID PRESIDING OFFICER."  ON REMAND, A BROADER
CLAIM FOR CONFIDENTIALITY WAS MADE BY RESPONDENTS.  THEY REQUESTED THAT
ALL TESTIMONY AND DOCUMENTARY EVIDENCE TO BE ELICITED FROM THEM BE
RECEIVED IN NONPUBLIC SESSIONS, AND DISCLOSED ONLY IF A COURT, IN
SUBSEQUENT LITIGATION, SHOULD AUTHORIZE ITS PUBLIC DISCLOSURE.  THE
CONTENTION WAS REJECTED BY THE PRESIDING OFFICER, BUT RESPONDENT
SCHREIBER PERSISTED IN HIS REFUSAL TO COMPLY WITH THE SUBPOENA AND THE
COMMISSION'S ORDERS.  (FN12) 

THE COMMISSION THEREUPON PETITIONED THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA FOR THE ENFORCEMENT OF ITS
SUBPOENA AND ORDERS.  THE DISTRICT COURT FOUND THAT THE INVESTIGATION
WAS STATUTORILY AUTHORIZED, THAT THE INFORMATION REQUESTED IN ANNEX B
WAS RELEVANT TO THE INQUIRY, AND THAT RESPONDENTS HAD DISOBEYED VALID
ORDERS AND A VALID SUBPOENA.  (FN13) ACCORDINGLY, THE DISTRICT COURT
ORDERED RESPONDENTS TO APPEAR AT A RECONVENED HEARING AND TO COMPLY
WITH THE COMMISSION'S SUBPOENA AND ORDERS.  HOWEVER, THE COURT, IN
ORDER TO PROTECT "RESPONDENTS' RIGHTS AND TO PRECLUDE DISCLOSURE OF
TRADE SECRETS OF WHICH COMPETITORS MIGHT TAKE ADVANTAGE," ORDERED THAT
ALL TESTIMONY GIVEN AND DOCUMENTS PRODUCED BY RESPONDENTS BE RECEIVED
AND HELD IN CONFIDENCE.  (FN14)  THE COURT'S ORDER FURTHER PROVIDED
THAT, AFTER THE INVESTIGATION OF RESPONDENTS HAD BEEN COMPLETED, THE
COMMISSION COULD MOVE THE COURT FOR AN ORDER, "SHOULD GOOD CAUSE EXIST
THEREFOR," PERMITTING SUCH TESTIMONY AND DOCUMENTS TO BE MADE PUBLIC. 
201 F. SUPP. 421. 

ON APPEAL, A DIVIDED COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED
THAT PORTION OF THE DISTRICT COURT'S ORDER WHICH AFFIRMED THAT PORTION
OF THE DISTRICT COURT'S ORDER WHICH PERTAINS TO THE QUESTIONS NOW
BEFORE THIS COURT.  (FN15)   THE COURT OF APPEALS HELD THAT THE
DISTRICT COURT HAD NOT ABUSED ITS DISCRETION IN CONDITIONING ITS ORDER
TO REQUIRE CONFIDENTIAL TREATMENT OF THE INFORMATION SOUGHT.  329 F.2D
517.  IN DISSENT, JUDGE BROWNING STATED THAT THE COMMISSION'S
PROCEDURAL RULE, REQUIRING PUBLIC HEARINGS UNLESS IN CAMERA PROCEEDINGS
COULD BE JUSTIFIED BY THOSE FROM WHOM THE INFORMATION WAS SOUGHT, WAS
WELL WITHIN THE COMMISSION'S POWER.  IT WAS JUDGE BROWNING'S VIEW THAT
THE DISTRICT COURT COULD REQUIRE CONFIDENTIAL TREATMENT ONLY IF THE
COMMISSION'S APPLICATION OF ITS PROCEDURAL RULE AND CONSEQUENT REFUSAL
TO ACCORD CONFIDENTIAL TREATMENT WAS FOUND TO BE ARBITRARY OR AN ABUSE
OF THE COMMISSION'S DISCRETION.  ID., AT 528-534.  BECAUSE THIS CASE
PRESENTS IMPORTANT QUESTIONS CONCERNING THE RESPECTIVE ROLES TO BE
PERFORMED BY FEDERAL COURTS AND THE FEDERAL COMMUNICATIONS COMMISSION
IN THE ADMINISTRATION OF THE COMMUNICATIONS ACT OF 1934, WE GRANTED
CERTIORARI.  379 U.S. 927. 

WE HOLD THAT THE COMMISSION'S RULE - REQUIRING PUBLIC DISCLOSURE
EXCEPT WHERE THE PROPONENTS OF A REQUEST FOR CONFIDENTIAL TREATMENT
HAVE DEMONSTRATED THAT THE PUBLIC INTEREST, PROPER DISPATCH OF
BUSINESS, OR THE ENDS OF JUSTICE WOULD BE SERVED BY NONPUBLIC SESSIONS
WAS WELL WITHIN THE COMMISSION'S STATUTORY AUTHORITY.  WE FURTHER FIND
THAT THE COMMISSION DID NOT ABUSE ITS DISCRETION IN APPLYING THIS
RULE.  ACCORDINGLY, WE MODIFY THE DECISION BELOW INSOFAR AS IT AFFIRMS
THE DISTRICT COURT'S IMPOSITION OF CONDITIONS UPON THE ENFORCEMENT OF
THE SUBPOENA AND ORDERS ISSUED BY THE COMMISSION. 

        I. 

1068, 47 U.S.C.  SEC. 154(J) (1958 ED.), EMPOWERS THE FEDERAL
COMMUNICATIONS COMMISSION TO "CONDUCT ITS PROCEEDINGS IN SUCH MANNER AS
WILL BEST CONDUCE TO THE PROPER DISPATCH OF BUSINESS AND TO THE ENDS OF
JUSTICE."  THIS COURT HAS INTERPRETED THAT PROVISION AS "EXPLICITLY AND
BY IMPLICATION" DELEGATING TO THE COMMISSION POWER TO RESOLVE
"SUBORDINATE QUESTIONS OF PROCEDURE  ...  SUCH AS THE SCOPE OF THE
INQUIRY, WHETHER APPLICATIONS SHOULD BE HEARD CONTEMPORANEOUSLY OR
SUCCESSIVELY, WHETHER PARTIES SHOULD BE ALLOWED TO INTERVENE IN ONE
ANOTHER'S PROCEEDINGS, AND SIMILAR QUESTIONS."  FEDERAL COMMUNICATIONS
COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 138.  THE STATUTE
DOES NOT MERELY CONFER POWER TO PROMULGATE RULES GENERALLY APPLICABLE
TO ALL COMMISSION PROCEEDINGS, CF. FEDERAL COMMUNICATIONS COMM'N V.
WJR, 337 U.S. 265, 282; IT ALSO DELEGATES BROAD DISCRETION TO PRESCRIBE
RULES FOR SPECIFIC INVESTIGATIONS, CF. NORWEGIAN NITROGEN CO. V. UNITED
STATES, 288 U.S. 294, 321-322, AND TO MAKE AD HOC PROCEDURAL RULINGS IN
SPECIFIC INSTANCES, FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE
BROADCASTING CO., SUPRA.  CONGRESS HAS "LEFT LARGELY TO ITS JUDGMENT
THE DETERMINATION OF THE MANNER OF CONDUCTING ITS BUSINESS WHICH WOULD
MOST FAIRLY AND REASONABLY ACCOMMODATE" THE PROPER DISPATCH OF ITS
BUSINESS AND THE ENDS OF JUSTICE.  FEDERAL COMMUNICATIONS COMM'N V.
WJR, SUPRA.  (FN16) 

IN THE POTTSVILLE BROADCASTING CASE, THIS COURT STRESSED, IN
UPHOLDING THIS DELEGATION OF BROAD PROCEDURAL AUTHORITY, THE
ESTABLISHED PRINCIPLE THAT ADMINISTRATIVE AGENCIES "SHOULD BE FREE TO
FASHION THEIR OWN RULES OF PROCEDURE AND TO PURSUE METHODS OF INQUIRY
CAPABLE OF PERMITTING THEM TO DISCHARGE THEIR MULTITUDINOUS DUTIES." 
309 U.S., AT 143.  THIS PRINCIPLE, WHICH HAS BEEN UPHELD IN A VARIETY
OF APPLICATIONS, (FN17) IS AN OUTGROWTH OF THE CONGRESSIONAL
DETERMINATION THAT ADMINISTRATIVE AGENCIES AND ADMINISTRATORS WILL BE
FAMILIAR WITH THE INDUSTRIES WHICH THEY REGULATE AND WILL BE IN A
BETTER POSITION THAN FEDERAL COURTS OR CONGRESS ITSELF TO DESIGN
PROCEDURAL RULES ADAPTED TO THE PECULIARITIES OF THE INDUSTRY AND THE
TASKS OF THE AGENCY INVOLVED.  THUS, UNDERLYING THE BROAD DELEGATION IN
SEC. 4(J) OF PROCEDURAL RULE-MAKING POWER TO THE FEDERAL COMMUNICATIONS
COMMISSION IS A "RECOGNITION OF THE RAPIDLY FLUCTUATING FACTORS
CHARACTERISTIC OF THE EVOLUTION OF BROADCASTING AND OF THE
CORRESPONDING REQUIREMENT THAT THE ADMINISTRATIVE PROCESS POSSESS
SUFFICIENT FLEXIBILITY TO ADJUST ITSELF TO THESE FACTORS."  FEDERAL
COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., SUPRA, AT 138. 

TO PERMIT FEDERAL DISTRICT COURTS TO ESTABLISH ADMINISTRATIVE
PROCEDURES DE NOVO WOULD, OF COURSE, RENDER NUGATORY CONGRESS' EFFORT
TO INSURE THAT ADMINISTRATIVE PROCEDURES BE DESIGNED BY THOSE MOST
FAMILIAR WITH THE REGULATORY PROBLEMS INVOLVED.  THUS, IN PROVIDING FOR
JUDICIAL REVIEW OF ADMINISTRATIVE PROCEDURAL RULE-MAKING, CONGRESS HAS
NOT EMPOWERED DISTRICT COURTS TO SUBSTITUTE THEIR JUDGMENT FOR THAT OF
THE AGENCY.  INSTEAD, IT HAS LIMITED JUDICIAL RESPONSIBILITY TO
INSURING CONSISTENCY WITH GOVERNING STATUTES AND THE DEMANDS OF THE
CONSTITUTION.  OKLAHOMA PRESS PUB. CO. V. WALLING, 327 U.S. 186, 214
218; FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO.,
SUPRA, AT 144-145; FEDERAL RADIO COMM'N V. NELSON BROS. CO., 289 U.S.
266, 276-277. 

IT IS APPARENT THAT THE COURTS BELOW DID NOT RESPECT THIS
CONGRESSIONAL DISTRIBUTION OF AUTHORITY.   THE COMMISSION PROMULGATED A
RULE GOVERNING DISCLOSURE IN THIS INVESTIGATION.  YET, NEITHER THE
DISTRICT COURT NOR THE COURT OF APPEALS INQUIRED INTO THE VALIDITY OF
THE COMMISSION'S EXERCISE OF ITS RULE-MAKING AUTHORITY.  INSTEAD, THE
DISTRICT COURT DEVISED PROCEDURES TO BE FOLLOWED BY THE COMMISSION ON
THE BASIS OF THE COURT'S CONCEPTION OF HOW THE PUBLIC AND PRIVATE
INTERESTS INVOLVED COULD BEST BE SERVED.  IN REVIEWING THIS
DETERMINATION, THE COURT OF APPEALS FOUND THAT THE DISTRICT JUDGE HAD
NOT ABUSED HIS DISCRETION, "BUT, ON THE CONTRARY, ESTABLISHED A FAIR
AND JUST PROCEDURE WHEREBY A MOST IMPORTANT INVESTIGATION COULD PROCEED
WITHOUT BEING UNDULY DISRUPTED, OBSTRUCTED OR PROLONGED, AND AT THE
SAME TIME AFFORD RESPONDENTS PROTECTION AGAINST THE IMPROVIDENT
DISCLOSURE OF POSSIBLE VALUABLE TRADE SECRETS."  329 F.2D, AT 524.  IN
SO DOING, THE COURT OF APPEALS ERRED.  THE QUESTION FOR DECISION WAS
WHETHER THE EXERCISE OF DISCRETION BY THE COMMISSION WAS WITHIN
PERMISSIBLE LIMITS, NOT WHETHER THE DISTRICT JUDGE'S SUBSTITUTED
JUDGMENT WAS REASONABLE.    IT IS ALSO EVIDENT THAT THE COMMISSION'S
PROCEDURAL RULE - REQUIRING PUBLIC PROCEEDINGS EXCEPT WHERE IT IS SHOWN
THAT THE PUBLIC INTEREST, THE DISPATCH OF BUSINESS, OR THE ENDS OF
JUSTICE WOULD BE SERVED BY NONPUBLIC SESSIONS - WAS WELL WITHIN THE
COMMISSION'S POWER.  GRANTS OF AGENCY AUTHORITY COMPARABLE IN SCOPE TO
SEC. 4(J) HAVE BEEN HELD TO AUTHORIZE PUBLIC DISCLOSURE OF INFORMATION,
(FN18) OR RECEIPT OF DATA IN CONFIDENCE, (FN19) AS THE AGENCY MAY
DETERMINE TO BE PROPER UPON A BALANCING OF THE PUBLIC AND PRIVATE
INTERESTS INVOLVED.  THAT SEC. 4(J) IS BROAD ENOUGH TO EMPOWER THE
COMMISSION TO ESTABLISH STANDARDS FOR DETERMINING WHETHER TO CONDUCT AN
INVESTIGATION PUBLICLY OR IN PRIVATE IS DEMONSTRATED BY THIS COURT'S
DECISION IN NORWEGIAN NITROGEN CO. V. UNITED STATES, 288 U.S. 294. 
THERE, THE COURT POINTED OUT THAT A SIMILAR GRANT OF RULE-MAKING
AUTHORITY - SEC. 315(C) OF THE TARIFF ACT OF 1922, 42 STAT. 941, 942
943 - WHICH AUTHORIZES THE TARIFF COMMISSION "TO ADOPT SUCH REASONABLE
PROCEDURE, RULES, AND REGULATIONS AS IT MAY DEEM NECESSARY," EMPOWERED
THE COMMISSION: 

"TO SHAPE ITS COURSE WITHIN REASONABLE LIMITS BY ITS OWN CONCEPTION
OF THE PROMPTINGS OF POLICY AND FAIRNESS.  IT WOULD HAVE KEPT WITHIN
THE STATUTE EVEN THOUGH IT HAD MADE THE HEARINGS PRIVATE AND HAD
REFRAINED FROM THE PUBLICATION OF ANYTHING, EITHER THE RECORDS OF ITS
AGENTS OR THE TESTIMONY OF WITNESSES  ...  .  INSTEAD, IT MADE THE
HEARING PUBLIC, AND EXPOSED EVERYTHING TO VIEW EXCEPT ONLY WHEN
PUBLICATION WAS LIKELY IN ITS JUDGMENT TO RESULT IN HARDSHIP OR
INJUSTICE."  288 U.S., AT 321-322. 

THE DELEGATED POWER, OF COURSE, MAY NOT BE EXERCISED ARBITRARILY, BUT
ITS EXERCISE MAY NOT BE IMPEACHED MERELY BECAUSE REASONABLE MINDS MIGHT
DIFFER ON THE WISDOM THEREOF.  OKLAHOMA PRESS PUB. CO. V. WALLING, 327
U.S. 186, 215-218; ISBRANDTSEN-MOLLER CO. V. UNITED STATES, 300 U.S.
139, 146; NORWEGIAN NITROGEN CO. V. UNITED STATES, SUPRA, AT 321-322. 
IT IS APPARENT, HOWEVER, THAT THE COMMISSION'S DETERMINATION IN THE
PRESENT CASE THAT "PUBLIC PROCEEDINGS SHOULD BE THE RULE" WITH
EXCEPTIONS GRANTED "ONLY IN THOSE EXTRAORDINARY INSTANCES WHERE
DISCLOSURE WOULD IRREPARABLY DAMAGE PRIVATE, COMPETITIVE INTERESTS AND
WHERE SUCH INTERESTS COULD BE FOUND BY THE PRESIDING OFFICER TO
OUTWEIGH THE PARAMOUNT INTEREST OF THE PUBLIC AND THE COMMISSION IN
FULL PUBLIC DISCLOSURE" WAS NOT AN ARBITRARY EXERCISE OF THE
COMMISSION'S AUTHORITY.  THE PROCEDURAL RULE, ESTABLISHING A
PRESUMPTION IN FAVOR OF PUBLIC PROCEEDINGS, ACCORDS WITH THE GENERAL
POLICY FAVORING DISCLOSURE OF ADMINISTRATIVE AGENCY PROCEEDINGS. 
(FN20)  MOREOVER, THE REASONS ADVANCED BY THE COMMISSION IN SUPPORT OF
ITS DETERMINATION TO MAKE PUBLIC HEARINGS THE NORM AND TO PLACE THE
BURDEN OF JUSTIFYING CONFIDENTIAL TREATMENT UPON THOSE FROM WHOM
INFORMATION IS SOUGHT AMPLY DEMONSTRATE THAT THE COMMISSION'S EXERCISE
OF ITS DELEGATED POWERS MAY NOT BE SUCCESSFULLY ATTACKED AS ARBITRARY
OR CAPRICIOUS.  THE INVESTIGATIVE INQUIRY WAS DESIGNED TO SECURE
INFORMATION TO AID THE COMMISSION IN THE DISCHARGE OF ITS MANY
FUNCTIONS.  THE COMMISSION STATED THAT THE SUBJECT MATTER OF THE
INQUIRY IS "COMPLEX AND GENERALLY UNKNOWN" INVOLVING "MANY-SIDED
TRANSACTIONS" AMONG "NETWORKS, ADVERTISING AGENCIES, PROGRAM PRODUCERS,
PROGRAM PACKAGERS, TALENT AGENCIES" AND OTHERS.  THEREFORE, THE
COMMISSION DETERMINED, IN ORDER "TO OBTAIN A FULL AND ROUNDED PICTURE
OF SUCH TRANSACTIONS, IT IS HIGHLY DESIRABLE THAT THE FACTS,
INFORMATION, DATA AND OPINION SUPPLIED BY ONE GROUP OR INDIVIDUAL BE
KNOWN TO OTHER GROUPS AND INDIVIDUALS INVOLVED, SO THAT THEY MAY
VERIFY, REFUTE, EXPLAIN, AMPLIFY OR SUPPLEMENT THE RECORD FROM THEIR
OWN DIVERSE POINTS OF VIEW."  THE COMMISSION OBSERVED THAT, IN ADDITION
TO STIMULATING THE FLOW OF INFORMATION, PUBLIC HEARINGS SERVE TO INFORM
THOSE SEGMENTS OF THE PUBLIC PRIMARILY AFFECTED BY THE AGENCY'S
REGULATORY POLICIES AND THOSE LIKELY TO BE AFFECTED BY SUBSEQUENT
ADMINISTRATIVE OR LEGISLATIVE ACTION OF THE FACTUAL BASIS FOR ANY
ACTION ULTIMATELY TAKEN - A PRACTICAL INDUCEMENT TO PUBLIC ACCEPTANCE
OF THE RESULTS OF THE INVESTIGATION.  (FN21)  ALSO IMPLICIT IN THE
COMMISSION'S DISCOURSE IS A RECOGNITION THAT PUBLICITY TENDS TO
STIMULATE THE FLOW OF INFORMATION AND PUBLIC PREFERENCES WHICH MAY
SIGNIFICANTLY INFLUENCE ADMINISTRATIVE AND LEGISLATIVE VIEWS AS TO THE
NECESSITY AND CHARACTER OF PROSPECTIVE ACTION.  THE COMMISSION FURTHER
POINTED OUT THAT PUBLIC DISCLOSURE IS NECESSARY TO THE EXECUTION OF ITS
DUTY UNDER SEC. 4(K) OF THE COMMUNICATIONS ACT OF 1934, AS AMENDED, 48
STAT. 1068, 47 U.S.C. SEC. 154(K) (1958 ED.), TO MAKE ANNUAL REPORTS TO
CONGRESS.  SIGNIFICANTLY, THIS INVESTIGATION WAS SPECIFICALLY
AUTHORIZED BY CONGRESS SO THAT CONGRESS MIGHT "DRAW UPON THE FACTS
WHICH ARE OBTAINED."  (FN22) 

WE HOLD, THEREFORE, THAT THE COMMISSION'S ADOPTION OF THE PROCEDURAL
RULE FAVORING PUBLIC DISCLOSURE AND PLACING UPON THOSE FROM WHOM
INFORMATION IS SOUGHT THE BURDEN OF DEMONSTRATING THE NEED FOR IN
CAMERA PROCEEDINGS IS STATUTORILY AUTHORIZED. 

                                       II. 

REMAINING FOR DETERMINATION IS WHETHER THE COMMISSION'S APPLICATION
OF ITS DISCLOSURE RULE AND THE CONSEQUENT REJECTION OF RESPONDENTS'
REQUESTS FOR CONFIDENTIAL TREATMENT WERE SO ARBITRARY OR UNREASONABLE
AS TO WARRANT THE IMPOSITION BY THE DISTRICT COURT OF CONDITIONS UPON
ENFORCEMENT OF THE COMMISSION'S SUBPOENA AND ORDERS.  (FN23) 

UPON REMAND FROM THE COMMISSION, RESPONDENTS MOVED THAT ALL TESTIMONY
AND DOCUMENTS TO BE ELICITED FROM THEM - NOT MERELY ANNEX B - SHOULD BE
RECEIVED IN CAMERA.  RESPONDENTS ASSERTED THAT IN LIGHT OF THE
ANNOUNCED SCOPE OF THE INQUIRY, THE COMMISSION'S ORDER TO PRODUCE
DOCUMENTS UPON REQUEST AND TO TESTIFY "REGARDING ALL MATTERS DEEMED
RELEVANT" WOULD REQUIRE MCA "TO DISCLOSE ALL OF ITS BUSINESS
INFORMATION TO ITS MANY COMPETITORS AND TO MAKE A PUBLIC RECORD OF ALL
OF ITS ACTIVITIES," AND THAT SUCH A DISCLOSURE, IF DEMANDED, WOULD
NECESSARILY INCLUDE CONFIDENTIAL BUSINESS SECRETS.  NO FACTUAL SHOWING
WAS MADE; THERE WAS ONLY THE ARGUMENT. 

THE DISTRICT COURT ACCEPTED THE ARGUMENT, FINDING "WELL-GROUNDED THE
FEARS OF THE RESPONDENTS THAT THE TESTIMONY TO BE GIVEN MIGHT RESULT IN
DISCLOSURE OF TRADE-SECRETS, OF WHICH COMPETITORS MIGHT TAKE
ADVANTAGE."  201 F. SUPP., AT 425.  ACCORDINGLY, THE COURT ORDERED THAT
ALL TESTIMONY AND DOCUMENTS ADDUCED BY RESPONDENTS BE RECEIVED IN
CONFIDENCE.  IN SO DOING THE DISTRICT COURT ERRED, FOR IT IS CLEAR THAT
THE PRESIDING OFFICER DID NOT ABUSE HIS DISCRETION IN REJECTING THIS
REQUEST FOR BLANKET NONDISCLOSURE. 

THE PRESIDING OFFICER DID NOT KNOW WHAT INFORMATION WOULD ACTUALLY BE
SOUGHT, WHAT QUESTIONS ASKED.  INDEED, HE COULD ONLY SPECULATE AS TO
WHETHER THE COMMISSION WOULD SEEK TO ELICIT ANY DATA WHICH, IF
DISCLOSED TO MCA'S COMPETITIORS, WOULD WORK COMPETITIVE HARM.  HE COULD
NOT ASCERTAIN THE LIKELIHOOD OF IRREPARABLE DAMAGE TO PRIVATE
COMPETITIVE INTERESTS, NOR COULD HE DISCERN WHETHER THE PRIVATE
INTEREST OUTWEIGHED THE PUBLIC INTEREST IN DISCLOSURE.  IF AND WHEN
INFORMATION WAS DEMANDED WHICH IF DISCLOSED MIGHT IN FACT INJURE MCA
COMPETITIVELY, THERE WOULD BE AMPLE OPPORTUNITY TO REQUEST THAT IT BE
RECEIVED IN CONFIDENCE, AND TO SEEK JUDICIAL PROTECTION IF THE REQUEST
WERE DENIED.  CF. REISMAN V. CAPLIN, 375 U.S. 440.  THE PRESIDING
OFFICER WOULD HAVE ABUSED HIS DISCRETION IN DENYING THE REQUEST ONLY IF
IT WERE SHOWN THAT NO INFORMATION COULD HAVE BEEN ELICITED FROM
RESPONDENTS WHICH COULD BE PUBLICLY DISCLOSED.  THE RECORD AFFORDS NO
JUSTIFICATION FOR SUCH A PROPOSITION. 

THE ONLY OTHER POSSIBLE BASIS FOR THE DISTRICT COURT'S ORDER WOULD BE
AN ASSUMPTION THAT THE PRESIDING OFFICER WOULD CONSISTENTLY REQUIRE
DISCLOSURE EVEN IF A BALANCING OF PUBLIC AND PRIVATE INTERESTS
COMPELLED SECRECY.  THERE IS NO SUPPORT FOR SUCH AN ASSUMPTION IN THE
RECORD AND IT RUNS CONTRARY TO THE PRESUMPTION TO WHICH ADMINISTRATIVE
AGENCIES ARE ENTITLED - THAT THEY WILL ACT PROPERLY AND ACCORDING TO
LAW. 

NOR CAN THE DISTRICT COURT'S ORDER BE SAVED ON THE GROUND THAT IT DID
NOT DIRECT THAT ALL INFORMATION BE HELD IN CONFIDENCE, BUT MERELY
DEFERRED THE DETERMINATION OF WHETHER THE INFORMATION WAS ENTITLED TO
CONFIDENTIAL TREATMENT UNTIL AFTER THE INQUIRY OF RESPONDENTS HAD BEEN
COMPLETED.  THE ORDER DIRECTS THAT THERE BE NO DISCLOSURE UNTIL THE
COURT SO ORDERS, "SHOULD GOOD CAUSE EXIST THEREFOR."  NOT ONLY DOES
THIS ORDER SEEM TO SHIFT THE BURDEN OF PROOF TO THE COMMISSION TO
JUSTIFY PUBLICATION, DESPITE THE VALID RULE TO THE CONTRARY, BUT IT
ALSO PERMITS RESPONDENTS TO AVOID SUBMITTING THE ISSUE OF DISCLOSURE TO
THE PRESIDING OFFICER DESPITE THE "LONG SETTLED RULE OF JUDICIAL
ADMINISTRATION THAT NO ONE IS ENTITLED TO JUDICIAL RELIEF FOR A
SUPPOSED OR THREATENED INJURY UNTIL THE PRESCRIBED ADMINISTRATIVE
REMEDY HAS BEEN EXHAUSTED."  MYERS V. BETHLEHEM SHIPBUILDING CORP., 303
U.S. 41, 50-51; REISMAN V. CAPLIN, SUPRA.  MOREOVER, THE DISTRICT
COURT'S ORDER FORBIDS DISCLOSURE UNTIL COMPLETION OF THE INVESTIGATION
OF RESPONDENTS WITHOUT ANY SHOWING THAT SECRECY IS JUSTIFIED.  DURING
THIS PERIOD THE COMMISSION COULD NOT MAKE THE INFORMATION AVAILABLE TO
CONGRESS, AND THE COMMISSION WOULD BE DENIED THE BENEFIT OF OTHER
EVIDENCE STIMULATED BY DISCLOSURE.  AND THE PERIOD DURING WHICH THE
BENEFITS OF DISCLOSURE WOULD BE DENIED WOULD INEVITABLY BE LONG. 
RESPONDENT FIRST APPEARED BEFORE THE PRESIDING OFFICER ON OCTOBER 21,
1960, AND RESOLUTION OF THE ISSUES THEN RAISED HAS CAUSED A DELAY OF
MORE THAN FOUR AND ONE-HALF YEARS. 

WE DO NOT FIND FORCEFUL RESPONDENT'S CONTENTION THAT THE DISTRICT
COURT'S ORDER WAS NECESSARY TO PROTECT AGAINST THE DISCRIMINATORY
TREATMENT OF MCA BY THE COMMISSION.  THE ALLEGATION FINDS LITTLE
SUPPORT IN THE RECORD; MOREOVER, NO REFERENCE IS MADE TO THIS FACTOR IN
THE DISTRICT COURT'S OPINION OR FINDINGS OF FACT.  RESPONDENTS'
ASSERTIONS THAT "THE COMMISSION'S INTEREST IN MCA WAS DEEP" AND THAT
"CONCENTRATION UPON MCA WAS UNIQUE," EVEN IF TRUE, WOULD NOT
DEMONSTRATE THE NEED FOR SECRECY.  INSTEAD, SUCH ASSERTIONS MERELY LEND
CREDENCE TO THE COMMISSION'S UNCHALLENGED FINDING THAT BECAUSE OF THE
IMPORTANCE OF MCA IN THE INDUSTRY, THE FAILURE TO EXPLORE FULLY THE
POLICIES AND PRACTICES OF MCA "WOULD SERIOUSLY IMPAIR, IF NOT RENDER
NUGATORY, ANY ATTEMPT ON THE COMMISSION'S PART TO UNDERSTAND AND
DELINEATE THE POLICIES, PRACTICES AND ACTIVITIES INVOLVED IN THE
CREATION, PRODUCTION, SALE AND LICENSING OF TELEVISION FILMED
PROGRAMS."  FURTHERMORE, IT IS CLEAR THAT RESPONDENTS ARE ADEQUATELY
PROTECTED AGAINST IMPROVIDENT DISCLOSURE, EVEN IF THE COMMISSION SHOULD
UNFAIRLY SEEK DISCLOSURE OF INFORMATION WHICH WOULD BE COMPETITIVELY
DISASTROUS TO RESPONDENTS.  NOT ONLY DOES THE ADMINISTRATIVE REMEDY
EXIST, BUT JUDICIAL PROTECTION AGAINST COMMISSION OVERREACHING ALSO
REMAINS AVAILABLE WITH RESPECT TO ANY REQUESTS FOR INFORMATION MADE IN
THE FUTURE. 

WE CONCLUDE, THEREFORE, THAT THE COMMISSION DID NOT ABUSE ITS
DISCRETION IN REJECTING RESPONDENTS' REQUEST FOR BLANKET NONDISCLOSURE
AND ACCORDINGLY HOLD THAT THE DISTRICT COURT ERRED IN ORDERING THE
COMMISSION TO AFFORD CONFIDENTIAL TREATMENT TO ALL INFORMATION ELICITED
FROM RESPONDENTS. 

RESPONDENTS ALSO MOVED THAT CONFIDENTIAL TREATMENT BE ACCORDED ANNEX
B WHICH CALLED FOR THE PROTECTION OF A LIST OF PROGRAMS AS TO WHICH MCA
SERVED AS A "PACKAGER" AND THOSE IN WHICH MCA HAD A FINANCIAL
INTEREST.  RESPONDENT SCHREIBER TESTIFIED THAT THE INFORMATION SOUGHT
WOULD DISCLOSE MCA'S CONFIDENTIAL AGENCY RELATIONSHIPS WITH CLIENTS,
"MIGHT BE USED DETRIMENTALLY," AND "WOULD BE POSSIBLY ADVANTAGEOUS TO
OUR COMPETITORS." 

WE FIND THAT THE COMMISSION'S AFFIRMANCE OF THE PRESIDING OFFICER'S
DETERMINATION THAT THE MATERIAL SOUGHT IN ANNEX B SHOULD BE RECEIVED IN
PUBLIC SESSION WAS CLEARLY PROPER.  CERTAINLY PRIVATE AGREEMENTS
BETWEEN MCA AND ITS CLIENTS NOT TO DISCLOSE FACTS WITHOUT THE CLIENT'S
CONSENT COULD NOT AFFECT THE COMMISSION IN THE DISCHARGE OF ITS PUBLIC
DUTIES.  SEE 8 WIGMORE, EVIDENCE SEC. 2286 (MCNAUGHTON REV. 1961).  AND
THE NAKED ASSERTION OF POSSIBLE COMPETITIVE INJURY DOES NOT ESTABLISH
THAT THE PRESIDING OFFICER ABUSED HIS DISCRETION IN DECLINING TO ACCORD
CONFIDENTIAL TREATMENT.  MOREOVER, THERE IS NOTHING IN THE DISTRICT
COURT'S OPINION, FINDINGS OR CONCLUSIONS OF LAW WHICH INDICATES THE
LIKELIHOOD, OR EVEN THE POSSIBILITY, OF COMPETITIVE HARM FROM PUBLIC
DISCLOSURE OF THE ANNEX B INFORMATION.  MCA'S COMPETITORS AND OTHERS
ENGAGED IN SIMILAR BUSINESSES HAD FURNISHED PUBLICLY THE SAME TYPE OF
INFORMATION WITHOUT OBJECTION.  RESPONDENTS DID NOT ATTEMPT BEFORE THE
COMMISSION OR ON REVIEW TO DISTINGUISH THE INFORMATION FURNISHED BY
MCA'S COMPETITORS OR THE LIST OF PROGRAMS PRODUCED BY MCA (SUBPOENAED
IN ANNEX A) WHICH WAS INTRODUCED WITHOUT OBJECTION BY RESPONDENT
SCHREIBER.  NOR DID RESPONDENTS FILE AFFIDAVITS IN SUPPORT OF THEIR
POSITION.  BUT, EVEN IF IT WERE CONCEDED THAT DISCLOSURE OF ANNEX B
MIGHT HAVE SOME COMPETITIVE IMPACT, THERE IS NO WARRANT FOR CONCLUDING
THAT THE PRESIDING OFFICER ABUSED HIS DISCRETION IN FINDING THAT
RESPONDENTS HAD NOT SUSTAINED THEIR BURDEN OF DEMONSTRATING THAT THE
PRIVATE INTEREST INVOLVED OUTWEIGHED THE PUBLIC INTEREST IN
DISCLOSURE.    ONE FURTHER POINT SHOULD BE DISCUSSED.  DURING ORAL
ARGUMENT COUNSEL FOR RESPONDENTS SUGGESTED THAT HIS CLIENTS WERE
PREJUDICED IN THEIR EFFORTS TO DEMONSTRATE THE NEED FOR CONFIDENTIAL
TREATMENT OF THE INFORMATION CONTAINED IN ANNEX B BY RESTRICTIONS
IMPOSED UPON THE PARTICIPATION OF COUNSEL BY THE THEN-PREVAILING
COMMISSION RULES.  (FN24)  WE DO NOT FIND THIS CONTENTION PERSUASIVE. 
RESPONDENTS FILED A PETITION, PREPARED AND SIGNED BY COUNSEL, SEEKING
REVIEW BEFORE THE FULL COMMISSION OF THE PRESIDING OFFICER'S REJECTION
OF THEIR CONFIDENTIALITY REQUEST.  SUBSEQUENTLY, THEY FILED A SECOND
MOTION FOR CONFIDENTIAL TREATMENT WITH THE PRESIDING OFFICER AND
RESPONDENTS' COUNSEL WAS AFFORDED AN OPPORTUNITY TO ARGUE ORALLY IN
SUPPORT OF THE MOTION.  THUS, IT IS EVIDENT THAT THE THEN-EXISTING
COMMISSION RULES RESTRICTING THE RIGHTS OF COUNSEL DID NOT PREJUDICE
RESPONDENTS IN THEIR EFFORTS TO SECURE IN CAMERA PROCEEDINGS WITH
REGARD TO ANNEX B, (FN25) AND HENCE THERE IS NO OCCASION TO ORDER THAT
RESPONDENTS BE AFFORDED AN ADDITIONAL OPPORTUNITY TO PRESENT OBJECTIONS
TO THE DISCLOSURE OF THE INFORMATION SUBPOENAED IN ANNEX B. 

THE JUDGMENT OF THE COURT OF APPEALS IS MODIFIED SO AS TO STRIKE
PARAGRAPH 2 OF THE DISTRICT COURT'S ORDER, AND THE CAUSE IS REMANDED TO
THE DISTRICT COURT WITH DIRECTIONS TO ENFORCE THE COMMISSION'S ORDERS
AND SUBPOENA WITHOUT QUALIFICATION.  IT IS SO ORDERED. 

FN1  SECTION 403 PROVIDES: 

"THE COMMISSION SHALL HAVE FULL AUTHORITY AND POWER AT ANY TIME TO
INSTITUTE AN INQUIRY, ON ITS OWN MOTION, IN ANY CASE AND AS TO ANY
MATTER OR THING CONCERNING WHICH COMPLAINT IS AUTHORIZED TO BE MADE, TO
OR BEFORE THE COMMISSION BY ANY PROVISION OF THIS ACT, OR CONCERNING
WHICH ANY QUESTION MAY ARISE UNDER ANY OF THE PROVISIONS OF THIS ACT,
OR RELATING TO THE ENFORCEMENT OF ANY OF THE PROVISIONS OF THIS ACT. 
THE COMMISSION SHALL HAVE THE SAME POWERS AND AUTHORITY TO PROCEED WITH
ANY INQUIRY INSTITUTED ON ITS OWN MOTION AS THOUGH IT HAD BEEN APPEALED
TO BY COMPLAINT OR PETITION UNDER ANY OF THE PROVISIONS OF THIS ACT,
INCLUDING THE POWER TO MAKE AND ENFORCE ANY ORDER OR ORDERS IN THE
CASE, OR RELATING TO THE MATTER OR THING CONCERNING WHICH THE INQUIRY
IS HAD, EXCEPTING ORDERS FOR THE PAYMENT OF MONEY." 

FN2  INDEPENDENT OFFICES APPROPRIATIONS ACT, 1956, 69 STAT. 199, 201
202. 

FN3  STATEMENT OF COMMISSION CHAIRMAN MCCONNAUGHEY; HEARINGS BEFORE
THE SUBCOMMITTEE OF THE SENATE APPROPRIATIONS COMMITTEE, INDEPENDENT
OFFICES APPROPRIATIONS FOR 1956, 84TH CONG., 1ST SESS., P. 293. 
CHAIRMAN MCCONNAUGHEY ALSO NOTED THAT "ONLY WITH THIS INFORMATION CAN
THE PROBLEMS AFFECTING THE FURTHER EXPANSION OF TELEVISION OUTLETS BE
ADEQUATELY IDENTIFIED AND EVALUATED, AND APPROPRIATE RECOMMENDATIONS
MADE FOR THEIR SOLUTION."  ID., AT 294.  SEE ALSO HEARINGS BEFORE THE
SUBCOMMITTEE OF THE HOUSE APPROPRIATIONS COMMITTEE, INDEPENDENT OFFICES
APPROPRIATIONS FOR 1956, 84TH CONG., 1ST SESS., PP. 663-664. 

FN4 THE PURPOSE AND SCOPE OF THE INQUIRY ARE SET FORTH IN THE
COMMISSION'S ORDER OF FEB. 26, 1959.  24 FED. REG. 1605.  ON NOV. 10,
1959, THE COMMISSION ENTERED A SUPPLEMENTAL ORDER: 

"THAT THE INQUIRY AND INVESTIGATORY PROCEEDING INSTITUTED PURSUANT TO
THE COMMISSION'S ORDER OF FEBRUARY 26, 1959 (FCC 59-166), BE AND IS
HEREBY AMENDED AND ENLARGED TO DETERMINE THE POLICIES, PRACTICES,
MECHANICS AND SURVEILLANCE PURSUED AND CARRIED OUT BY NETWORKS, STATION
LICENSEES AND OTHERS IN CONNECTION WITH THE ACQUISITION, OWNERSHIP,
PRODUCTION, DISTRIBUTION, SELECTION, SALE AND LICENSING OF PROGRAMS FOR
RADIO AND TELEVISION EXHIBITION AND THE POLICIES AND PRACTICES PURSUED
BY NETWORKS, STATION LICENSEES AND OTHERS IN CONNECTION WITH THE
SELECTION, PRESENTATION AND SUPERVISION OF ADVERTISING MATERIAL FOR
BROADCAST TO THE PUBLIC AND THE REASONS AND NECESSITY IN THE PUBLIC
INTEREST FOR SAID POLICIES AND PRACTICES  ...  ."  ID., AT 9275, 9276. 

IN ITS ORDERS THE COMMISSION NOTED THAT THE INFORMATION SOUGHT WAS
NECESSARY (1) TO COMPLETE ITS GENERAL INVESTIGATION OF RADIO AND
TELEVISION BROADCASTING PURSUANT TO THE INDEPENDENT OFFICES
APPROPRIATIONS ACT; (2) TO DETERMINE "WHAT, IF ANY, RULES, REGULATIONS,
LEGISLATION OR OTHER ACTIONS ARE NECESSARY OR DESIRABLE IN THE PUBLIC
INTEREST IN CONNECTION WITH" TELEVISION PROGRAMMING; (3) TO DETERMINE
WHERE THE PUBLIC INTEREST LIES IN THE GRANTING OF CONSTRUCTION PERMITS,
STATION LICENSES, MODIFICATIONS AND RENEWALS; AND (4) TO ENABLE THE
COMMISSION TO REPORT AND MAKE SPECIFIC RECOMMENDATIONS TO CONGRESS IN
RELATION TO THE REGULATION OF BROADCASTING.  ID., AT 1605, 9275. 

FN5  ID., AT 1605. 

FN6  IBID. 

FN7  "PACKAGERS" DEVELOP AND ASSEMBLE THE TALENT AND SCRIPTS FOR A
PARTICULAR PROGRAM OR PROGRAMS.   A "PRODUCER" HAS GENERAL CHARGE OF
THE PROCESS OF PREPARING THE PACKAGE FOR TELEVISION SHOWING. 

FN8  THE COMMISSION'S UNCHALLENGED FINDING WAS: 

"THAT MCA, INC., (A) REPRESENTS A LARGE SHARE OF THE TALENT, BOTH
ACTING AND CREATIVE, ENGAGED IN TELEVISION PROGRAMMING; (B) PRODUCES
TELEVISION PROGRAMS; (C) PACKAGES AND/OR SELLS SUCH PROGRAMS; (D)
MAINTAINS AND LEASES PRODUCTION FACILITIES FOR SUCH PROGRAMS AND
GENERALLY ENGAGES, ON A LARGE SCALE, IN ALL FACETS OF TELEVISION
PROGRAM PRODUCTION.  THE RECORD OF THE PROCEEDING TO DATE CLEARLY
ESTABLISHES THAT FAILURE FULLY TO EXPLORE THE POLICIES, PRACTICES AND
ACTIVITIES OF MCA, INC., IN CONNECTION WITH TELEVISION PROGRAMMING
WOULD SERIOUSLY IMPAIR, IF NOT RENDER NUGATORY, ANY ATTEMPT ON THE
COMMISSION'S PART TO UNDERSTAND AND DELINEATE THE POLICIES, PRACTICES
AND ACTIVITIES INVOLVED IN THE CREATION, PRODUCTION, SALE AND LICENSING
OF TELEVISION FILMED PROGRAMS  ...  ."  R. 16. 

FN9  "(A)  A LIST BY NAME OR TITLE OF ALL TELEVISION PROGRAMS WHETHER
SERIES PROGRAMS, SPECIAL PROGRAMS, OR OTHERWISE, WHICH APPEARED OR WERE
EXHIBITED BY OR THROUGH THE FACILITIES OF THE TELEVISION NETWORKS
OPERATED BY NBC, CBS, OR ABC SINCE SEPTEMBER 1, 1958, WHICH PROGRAMS
WERE PRODUCED BY MCA, INC. OR REVUE PRODUCTIONS, INC. AND/OR IN WHICH
MCA, INC. OR REVUE PRODUCTIONS, INC. HAS OR HAD A FINANCIAL OR
PROPRIETARY INTEREST OR WITH REGARD TO WHICH MCA, INC. OR REVUE
PRODUCTIONS, INC. IS OR WAS ENTITLED TO RECEIVE OR HAS RECEIVED A
PERCENTAGE OF THE PROFITS OR OTHER COMPENSATION OR FEES IN CONNECTION
WITH THE PRODUCTION OR EXHIBITION OF SUCH PROGRAMS OTHER THAN
REMUNERATION OR COMPENSATION FOR THE REPRESENTATION AS AGENT OF
INDIVIDUAL NATURAL PERSONS AS TALENT." 

FN10  "(B)  A LIST OF ALL TELEVISION PROGRAMS WHETHER SERIES
PROGRAMS, SPECIAL PROGRAMS, OR OTHERWISE, WHICH APPEARED ON OR WERE
EXHIBITED BY OR THROUGH THE FACILITIES OF THE TELEVISION NETWORKS OF
NBC, CBS, OR ABC, SINCE SEPTEMBER 1, 1958, IN WHICH MCA, INC. OR ANY
PREDECESSOR AFFILIATE OR SUBSIDIARY OF MCA, INC. ACTED AS PACKAGER
AND/OR, BY AGREEMENT OR OTHERWISE, IS ENTITLED TO RECEIVE OR HAS
RECEIVED A PERCENTAGE OF THE COST OR SELLING PRICE OF SAID PROGRAM OR
WAS OR IS ENTITLED TO RECEIVE OR HAS RECEIVED OTHER COMPENSATION,
REMUNERATION OR FEES IN CONNECTION WITH THE PACKAGING, LICENSING FOR
BROADCAST OR SELLING OF SAID PROGRAM, OTHERWISE THAN AS REMUNERATION OR
COMPENSATION FOR THE REPRESENTATION AS AGENT OF INDIVIDUAL NATURAL
PERSONS AS TALENT." 

FN11  SEE INFRA, PP. 293-294. 

FN12  ON REVIEW OF THE PRESIDING OFFICER'S FIRST ORDER, THE
COMMISSION, ALTHOUGH DEALING WITH THE MERITS OF THAT ORDER, HELD "THAT
THE ORDERS AND DIRECTIONS OF THE PRESIDING OFFICER AS TO RELEVANCE AND
PUBLIC DISCLOSURE OF EVIDENCE, INFORMATION AND DATA ARE INTERLOCUTORY
IN NATURE, DO NOT OF THEMSELVES 'AGGRIEVE' ANY PERSON, AND ARE NOT, AS
OF RIGHT, APPEALABLE TO THE COMMISSION."  THIS HOLDING PRECLUDED AN
APPLICATION TO THE COMMISSION FOR REVIEW OF THE PRESIDING OFFICER'S
SECOND ORDER. 

FN13  RESPONDENTS DO NOT CHALLENGE THESE FINDINGS. 

FN14  PARAGRAPH 2 OF THE DISTRICT COURT'S ORDER PROVIDES: 

"IT IS FURTHER ORDERED THAT ANY FURTHER INTERROGATION OF RESPONDENTS
AND ANY DOCUMENTS PRODUCED BY RESPONDENTS BE TAKEN AND HELD BY THE
COMMISSION IN PRIVATE AND CONFIDENTIAL SESSION, THAT THE PUBLIC BE
EXCLUDED THEREFROM, THAT ALL TESTIMONY ADDUCED AND DOCUMENTS PRODUCED
BE MAINTAINED IN CONFIDENCE BY THE COMMISSION, THAT THE COMMISSION BY
MOTION DULY MADE AND SERVED, MAY MOVE THE COURT UPON THE CONCLUSION OF
SUCH INTERROGATION AND PRODUCTION FOR AN ORDER, SHOULD GOOD CAUSE EXIST
THEREFOR, PERMITTING SUCH TESTIMONY AND DOCUMENTS TO BE MADE PUBLIC,
AND THAT RESPONDENTS SHALL RETAIN THE RIGHT TO OPPOSE SUCH MOTION IF
AND WHEN SO MADE." 

FN15  UNDER THE PROCEDURES ESTABLISHED BY THE PRESIDING OFFICER,
COUNSEL FOR A WITNESS COULD NOT, DURING THE COURSE OF INTERROGATION OF
HIS CLIENT, TAKE EXCEPTION TO, REQUEST CLARIFICATION OF, OR OBJECT TO
ANY QUESTION, NOR COULD HE INITIATE CONSULTATION WITH HIS CLIENT. 
COUNSEL COULD CONSULT WITH HIS CLIENT ONLY UPON THE REQUEST OF THE
CLIENT IF APPROVED BY THE PRESIDING OFFICER.  THE DISTRICT COURT HELD
THAT UNDER SEC. 6(A) OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 240,
RESPONDENTS WERE ENTITLED TO THE ASSISTANCE OF COUNSEL IN THE FOLLOWING
RESPECTS:  THE RIGHT TO HAVE COUNSEL OBJECT TO ANY QUESTION AND STATE
HIS REASONS THEREFOR, AND THE RIGHT TO HAVE COUNSEL INITIATE
CONSULTATION WITHOUT INTERFERENCE BY THE COMMISSION OR ITS AGENTS.  THE
COURT OF APPEALS DISAGREED, CONCLUDING THAT THE PROCEDURES ESTABLISHED
BY THE PRESIDING OFFICER WERE NOT VIOLATIVE OF ANY CONSTITUTIONAL OR
STATUTORY PROVISIONS.  ON SEPT. 2, 1964, THE COMMISSION AMENDED PART I
OF ITS RULES AND REGULATIONS, PERMITTING COUNSEL FOR ANY PERSON
COMPELLED TO APPEAR IN COMMISSION PROCEEDINGS TO ADVISE HIS CLIENT
EITHER UPON HIS OWN INITIATIVE OR THAT OF HIS CLIENT, "TO MAKE
OBJECTIONS ON THE RECORD, AND TO STATE BRIEFLY THE BASIS FOR SUCH
OBJECTIONS."  29 FED. REG. 12774-12775.  FINDING THIS AMENDMENT TO BE
"IN ACCORD WITH RESPONDENTS' LEGAL POSITION ON THIS MATTER,"
RESPONDENTS DID NOT SEEK REVIEW OF THE RULING BELOW.  GIVEN THE CHANGE
IN THE COMMISSION'S RULES, WE NEED NOT, AND DO NOT, EXPRESS ANY VIEWS
AS TO THE LEGALITY OF THE PRIOR RULES CONCERNING A WITNESS' RIGHT TO
THE ASSISTANCE OF COUNSEL. 

FN16  THE COMMISSION'S OWN CONCEPTION OF ITS AUTHORITY IS SIMILARLY
BROAD.  SECTION 1.1 OF THE COMMISSION'S GENERAL RULES OF PRACTICE AND
PROCEDURE PROVIDES THAT PROCEDURES TO BE FOLLOWED IN INVESTIGATIVE
PROCEEDINGS SHALL "BE SUCH AS IN THE OPINION OF THE COMMISSION WILL
BEST SERVE THE PURPOSES OF SUCH PROCEEDING."  47 CFR SEC. 1.1 (1965). 

FN17  CIVIL AERONAUTICS BOARD V. HERMANN, 353 U.S. 322; OKLAHOMA
PRESS PUB. CO. V. WALLING, 327 U.S. 186; WALLACE CORP. V. NATIONAL
LABOR RELATIONS BOARD, 323 U.S. 248; ENDICOTT JOHNSON CORP. V. PERKINS,
317 U.S. 501; UTAH FUEL CO. V. NATIONAL BITUMINOUS COAL COMM'N, 306
U.S. 56; NORWEGIAN NITROGEN CO. V. UNITED STATES, 288 U.S. 294. 

FN18  ISBRANDTSEN-MOLLER CO. V. UNITED STATES, 300 U.S. 139; AMERICAN
SUMATRA TOBACCO CORP. V. SECURITIES & EXCHANGE COMM'N, 71 APP. D.C.
259, 110 F.2D 117 (1940); E. GRIFFITHS HUGHES, INC. V. FEDERAL TRADE
COMM'N, 61 APP. D.C. 386, 63 F.2D 362 (1933). 

FN19  NORWEGIAN NITROGEN CO. V. UNITED STATES, SUPRA. 

FN20  SECTION 3(C) OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 238,
5 U.S.C. SEC. 1002(C) (1958 ED.), PROVIDES: 

"SAVE AS OTHERWISE REQUIRED BY STATUTE, MATTERS OF OFFICIAL RECORD
SHALL IN ACCORDANCE WITH PUBLISHED RULE BE MADE AVAILABLE TO PERSONS
PROPERLY AND DIRECTLY CONCERNED EXCEPT INFORMATION HELD CONFIDENTIAL
FOR GOOD CAUSE FOUND." 

THIS STATUTE HAS BEEN INTERPRETED TO APPLY TO ALL INFORMATION
RECEIVED IN ANY "FORMAL PROCEEDING."   ATTORNEY GENERAL'S MANUAL ON THE
ADMINISTRATIVE PROCEDURE ACT 24 (1947).  IN CONSTRUING SEC. 3(C), THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HAS STATED:  "OF COURSE,
THE PUBLIC INTEREST IN OPEN HEARINGS PLACES THE BURDEN ON THE
PLAINTIFFS TO SHOW THAT THEIR DOCUMENTS SHOULD BE RECEIVED IN
CONFIDENCE."  GRABER MFG. CO. V. DIXON, 223 F. SUPP. 1020, 1022
(D.C.D.C. 1963).  SEE ALSO DAVIS, ADMINISTRATIVE LAW SEC. 8.09 (1958). 

FN21  SEE GENERALLY ROURKE, LAW ENFORCEMENT THROUGH PUBLICITY, 24 U.
CHI.  L. REV. 225 (1957); NOTE, 72 YALE L.J. 1227 (1963). 

FN22  STATEMENT OF SENATOR MAGNUSON, 101 CONG. REC. 7629. 

FN23  RESPONDENTS DO NOT CONTEND THAT A DENIAL OF CONFIDENTIAL
TREATMENT WOULD RESULT IN THE ABRIDGMENT OF ANY CONSTITUTIONAL RIGHT. 

FN24  SEE NOTE 15, SUPRA. 

FN25  IT SHOULD ALSO BE NOTED THAT DURING THE INITIAL PROCEEDING
BEFORE THE PRESIDING OFFICER WHEN RESPONDENT SCHREIBER FIRST OBJECTED
TO DISCLOSURE TO THE ANNEX B INFORMATION, HE WAS AFFORDED AN
OPPORTUNITY TO CONSULT WITH COUNSEL.  IN ADDITION, THE COMMISSION RULES
THEN IN EFFECT CONTAINED NO RESTRICTIONS ON THE RIGHT OF COUNSEL TO
PREPARE WRITTEN DOCUMENTS IN SUPPORT OF REQUESTS FOR CONFIDENTIAL
TREATMENT OR ON THE RIGHT TO WITNESSES, SUCH AS RESPONDENT SCHREIBER,
TO SUBMIT SUCH DOCUMENTS. 
..END :










LAMONT, DBA BASIC PAMPHLETS V. POSTMASTER GENERAL 381 U.S. 301 


NO. 491.  ARGUED APRIL 26, 1965.  -DECIDED MAY 24, 1965.* - 229 F. SUPP.
913, REVERSED; 236 F. SUPP. 405, AFFIRMED. 

*TOGETHER WITH NO. 848, FIXA, POSTMASTER, SAN FRANCISCO, ET AL. V.
HEILBERG, ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA. 


THESE CASES CHALLENGE THE CONSTITUTIONALITY OF SEC. 305(A) OF THE
POSTAL SERVICE AND FEDERAL EMPLOYEES SALARY ACT OF 1962, WHICH REQUIRES
THE POSTMASTER GENERAL TO DETAIN AND DELIVER ONLY UPON THE ADDRESSEE'S
REQUEST UNSEALED FOREIGN MAILINGS OF "COMMUNIST POLITICAL PROPAGANDA." 
UNDER PROCEDURE EFFECTIVE MARCH 15, 1965, THE POST OFFICE SENDS TO THE
ADDRESSEE A CARD WHICH CAN BE CHECKED TO HAVE THE MAILING DELIVERED. 
THE CARD STATES THAT IF IT IS NOT RETURNED WITHIN 20 DAYS, IT WILL BE
ASSUMED THAT THE ADDRESSEE DOES NOT WANT THAT PUBLICATION OR ANY
SIMILAR ONE IN THE FUTURE.  WHEN THE ADDRESSEES IN THESE CASES RECEIVED
THE POST OFFICE NOTICES THEY SUED TO ENJOIN ENFORCEMENT OF THE
STATUTE.  HELD:  THE ACT AS CONSTRUED AND APPLIED IS UNCONSTITUTIONAL
SINCE IT IMPOSES ON THE ADDRESSEE AN AFFIRMATIVE OBLIGATION WHICH
AMOUNTS TO AN UNCONSTITUTIONAL LIMITATION OF HIS RIGHTS UNDER THE FIRST
AMENDMENT.  PP. 305-307. 

LAMONT, DBA BASIC PAMPHLETS V. POSTMASTER GENERAL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS PRESENT THE SAME QUESTION:  IS SEC. 305(A) OF THE
POSTAL SERVICE AND FEDERAL EMPLOYEES SALARY ACT OF 1962, 76 STAT. 840,
CONSTITUTIONAL AS CONSTRUED AND APPLIED?  THE STATUTE PROVIDES IN
PART: 

"MAIL MATTER, EXCEPT SEALED LETTERS, WHICH ORIGINATES OR WHICH IS
PRINTED OR OTHERWISE PREPARED IN A FOREIGN COUNTRY AND WHICH IS
DETERMINED BY THE SECRETARY OF THE TREASURY PURSUANT TO RULES AND
REGULATIONS TO BE PROMULGATED BY HIM TO BE 'COMMUNIST POLITICAL
PROPAGANDA,' SHALL BE DETAINED BY THE POSTMASTER GENERAL UPON ITS
ARRIVAL FOR DELIVERY IN THE UNITED STATES, OR UPON ITS SUBSEQUENT
DEPOSIT IN THE UNITED STATES DOMESTIC MAILS, AND THE ADDRESSEE SHALL BE
NOTIFIED THAT SUCH MATTER HAS BEEN RECEIVED AND WILL BE DELIVERED ONLY
UPON THE ADDRESSEE'S REQUEST, EXCEPT THAT SUCH DETENTION SHALL NOT BE
REQUIRED IN THE CASE OF ANY MATTER WHICH IS FURNISHED PURSUANT TO
SUBSCRIPTION OR WHICH IS OTHERWISE ASCERTAINED BY THE POSTMASTER
GENERAL TO BE DESIRED BY THE ADDRESSEE."  39 U.S.C. 4008(A). 

THE STATUTE DEFINES "COMMUNIST POLITICAL PROPAGANDA" AS POLITICAL
PROPAGANDA (AS THAT TERM IS DEFINED IN SEC. 1(J) OF THE FOREIGN AGENTS
REGISTRATION ACT OF 1938) (FN1) WHICH IS ISSUED BY OR ON BEHALF OF ANY
COUNTRY WITH RESPECT TO WHICH THERE IS IN EFFECT A SUSPENSION OR
WITHDRAWAL OF TARIFF CONCESSIONS OR FROM WHICH FOREIGN ASSISTANCE IS
WITHHELD PURSUANT TO CERTAIN SPECIFIED STATUTES.  39 U.S.C. SEC.
4008(B).  THE STATUTE CONTAINS AN EXEMPTION FROM ITS PROVISIONS FOR
MAIL ADDRESSED TO GOVERNMENT AGENCIES AND EDUCATIONAL INSTITUTIONS, OR
OFFICIALS THEREOF, AND FOR MAIL SENT PURSUANT TO A RECIPROCAL CULTURAL
INTERNATIONAL AGREEMENT.  39 U.S.C. SEC. 4008(C). 

TO IMPLEMENT THE STATUTE THE POST OFFICE MAINTAINS 10 OF 11 SCREENING
POINTS THROUGH WHICH IS ROUTED ALL UNSEALED MAIL FROM THE DESIGNATED
FOREIGN COUNTRIES.  AT THESE POINTS THE NONEXEMPT MAIL IS EXAMINED BY
CUSTOMS AUTHORITIES.  WHEN IT IS DETERMINED THAT A PIECE OF MAIL IS
"COMMUNIST POLITICAL PROPAGANDA," THE ADDRESSEE IS MAILED A NOTICE
IDENTIFYING THE MAIL BEING DETAINED AND ADVISING THAT IT WILL BE
DESTROYED UNLESS THE ADDRESSEE REQUESTS DELIVERY BY RETURNING AN
ATTACHED REPLY CARD WITHIN 20 DAYS. 

PRIOR TO MARCH 1, 1965, THE REPLY CARD CONTAINED A SPACE IN WHICH THE
ADDRESSEE COULD REQUEST DELIVERY OF ANY "SIMILAR PUBLICATION" IN THE
FUTURE.  A LIST OF THE PERSONS THUS MANIFESTING A DESIRE TO RECEIVE
"COMMUNIST POLITICAL PROPAGANDA" WAS MAINTAINED BY THE POST OFFICE. 
THE GOVERNMENT IN ITS BRIEF INFORMS US THAT THE KEEPING OF THIS LIST
WAS TERMINATED, EFFECTIVE MARCH 15, 1965.  THUS, UNDER THE NEW
PRACTICE, A NOTICE IS SENT AND MUST BE RETURNED FOR EACH INDIVIDUAL
PIECE OF MAIL DESIRED.  THE ONLY STANDING INSTRUCTION WHICH IT IS NOW
POSSIBLE TO LEAVE WITH THE POST OFFICE IS NOT TO DELIVER ANY "COMMUNIST
POLITICAL PROPAGANDA."  (FN2)  AND THE SOLICITOR GENERAL ADVISES US
THAT THE POST OFFICE DEPARTMENT "INTENDS TO RETAIN ITS ASSUMPTION THAT
THOSE WHO DO NOT RETURN THE CARD WANT NEITHER THE IDENTIFIED
PUBLICATION NOR ANY SIMILAR ONE ARRIVING SUBSEQUENTLY." 

NO. 491 AROSE OUT OF THE POST OFFICE'S DETENTION IN 1963 OF A COPY OF
THE PEKING REVIEW #12 ADDRESSED TO APPELLANT.  DR. CORLISS LAMONT, WHO
IS ENGAGED IN THE PUBLISHING AND DISTRIBUTING OF PAMPHLETS.  LAMONT DID
NOT RESPOND TO THE NOTICE OF DETENTION WHICH WAS SENT TO HIM BUT
INSTEAD INSTITUTED THIS SUIT TO ENJOIN ENFORCEMENT OF THE STATUTE,
ALLEGING THAT IT INFRINGED HIS RIGHTS UNDER THE FIRST AND FIFTH
AMENDMENTS.  THE POST OFFICE THEREUPON NOTIFIED LAMONT THAT IT
CONSIDERED HIS INSTITUTION OF THE SUIT TO BE AN EXPRESSION OF HIS
DESIRE TO RECEIVE "COMMUNIST POLITICAL PROPAGANDA" AND THEREFORE NONE
OF HIS MAIL WOULD BE DETAINED.  LAMONT AMENDED HIS COMPLAINT TO
CHALLENGE ON CONSTITUTIONAL GROUNDS THE PLACEMENT OF HIS NAME ON THE
LIST OF THOSE DESIRING TO RECEIVE "COMMUNIST POLITICAL PROPAGANDA." 
THE MAJORITY OF THE THREE-JUDGE DISTRICT COURT NONETHELESS DISMISSED
THE COMPLAINT AS MOOT, 229 F.SUPP.  913, BECAUSE LAMONT WOULD NOW
RECEIVE HIS MAIL UNIMPEDED.  INSOFAR AS THE LIST WAS CONCERNED, THE
MAJORITY THOUGHT THAT ANY LEGALLY SIGNIFICANT HARM TO LAMONT AS A
RESULT OF BEING LISTED WAS MERELY A SPECULATIVE POSSIBILITY, AND SO ON
THIS SCORE THE CONTROVERSY WAS NOT YET RIPE FOR ADJUDICATION.  LAMONT
APPEALED FROM THE DISMISSAL, AND WE NOTED PROBABLE JURISDICTION.  379
U.S. 926. 

LIKE LAMONT, APPELLEE HEILBERG IN NO. 848, WHEN HIS MAIL WAS
DETAINED, REFUSED TO RETURN THE REPLY CARD AND INSTEAD FILED A
COMPLAINT IN THE DISTRICT COURT FOR AN INJUNCTION AGAINST ENFORCEMENT
OF THE STATUTE.  THE POST OFFICE REACTED TO THIS COMPLAINT IN THE SAME
MANNER AS IT HAD TO LAMONT'S COMPLAINT, BUT THE DISTRICT COURT DECLINED
TO HOLD THAT HEILBERG'S ACTION WAS THEREBY MOOTED.  INSTEAD THE
DISTRICT COURT REACHED THE MERITS AND UNANIMOUSLY HELD THAT THE STATUTE
WAS UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT.  236 F. SUPP. 405.  THE
GOVERNMENT APPEALED AND WE NOTED PROBABLE JURISDICTION.  379 U.S. 997. 

THERE IS NO LONGER EVEN A COLORABLE QUESTION OF MOOTNESS IN THESE
CASES, FOR THE NEW PROCEDURE, AS DESCRIBED ABOVE, REQUIRES THE POSTAL
AUTHORITIES TO SEND A SEPARATE NOTICE FOR EACH ITEM AS IT IS RECEIVED
AND THE ADDRESSEE TO MAKE A SEPARATE REQUEST FOR EACH ITEM.  UNDER THE
NEW SYSTEM, WE ARE TOLD, THERE CAN BE NO LIST OF PERSONS WHO HAVE
MANIFESTED A DESIRE TO RECEIVE "COMMUNIST POLITICAL PROPAGANDA" AND
WHOSE MAIL WILL THEREFORE GO THROUGH RELATIVELY UNIMPEDED.  THE
GOVERNMENT CONCEDES THAT THE CHANGED PROCEDURE ENTIRELY PRECLUDES ANY
CLAIM OF MOOTNESS AND LEAVES FOR OUR CONSIDERATION THE SOLE QUESTION OF
THE CONSTITUTIONALITY OF THE STATUTE. 

WE CONCLUDE THAT THE ACT AS CONSTRUED AND APPLIED IS UNCONSTITUTIONAL
BECAUSE IT REQUIRES AN OFFICIAL ACT (VIZ., RETURNING THE REPLY CARD) AS
A LIMITATION ON THE UNFETTERED EXERCISE OF THE ADDRESSEE'S FIRST
AMENDMENT RIGHTS.  AS STATED BY MR. JUSTICE HOLMES IN MILWAUKEE PUB.
CO. V. BURLESON, 255 U.S. 407, 437 (DISSENTING): "THE UNITED STATES MAY
GIVE UP THE POST OFFICE WHEN IT SEES FIT, BUT WHILE IT CARRIES IT ON
THE USE OF THE MAILS IS ALMOST AS MUCH A PART OF FREE SPEECH AS THE
RIGHT TO USE OUR TONGUES  ...  ."  (FN3) 

WE STRUCK DOWN IN MURDOCK V. PENNSYLVANIA, 319 U.S. 105, A FLAT
LICENSE TAX ON THE EXERCISE OF FIRST AMENDMENT RIGHTS.  A REGISTRATION
REQUIREMENT IMPOSED ON A LABOR UNION ORGANIZER BEFORE MAKING A SPEECH
MET THE SAME FATE IN THOMAS V. COLLINS, 323 U.S. 516.  A MUNICIPAL
LICENSING SYSTEM FOR THOSE DISTRIBUTING LITERATURE WAS HELD INVALID IN
LOVELL V. GRIFFIN, 303 U.S. 444.  WE RECENTLY REVIEWED IN HARMAN V.
FORSSENIUS, 380 U.S. 528, AN ATTEMPT BY A STATE TO IMPOSE A BURDEN ON
THE EXERCISE OF A RIGHT UNDER THE TWENTY-FOURTH AMENDMENT.  THERE, A
REGISTRATION WAS REQUIRED BY ALL FEDERAL ELECTORS WHO DID NOT PAY THE
STATE POLL TAX.  WE STATED: 

"FOR FEDERAL ELECTIONS, THE POLL TAX IS ABOLISHED ABSOLUTELY AS A
PREREQUISITE TO VOTING, AND NO EQUIVALENT OR MILDER SUBSTITUTE MAY BE
IMPOSED.  ANY MATERIAL REQUIREMENT IMPOSED UPON THE FEDERAL VOTER
SOLELY BECAUSE OF HIS REFUSAL TO WAIVE THE CONSTITUTIONAL IMMUNITY
SUBVERTS THE EFFECTIVENESS OF THE TWENTY-FOURTH AMENDMENT AND MUST FALL
UNDER ITS BAN."  ID., P. 542. 

HERE THE CONGRESS - EXPRESSLY RESTRAINED BY THE FIRST AMENDMENT FROM
"ABRIDGING" FREEDOM OF SPEECH AND OF PRESS - IS THE ACTOR.  THE ACT
SETS ADMINISTRATIVE OFFICIALS ASTRIDE THE FLOW OF MAIL TO INSPECT IT,
APPRAISE IT, WRITE THE ADDRESSEE ABOUT IT, AND AWAIT A RESPONSE BEFORE
DISPATCHING THE MAIL.  JUST AS THE LICENSING OR TAXING AUTHORITIES IN
THE LOVELL, THOMAS, AND MURDOCK CASES SOUGHT TO CONTROL THE FLOW OF
IDEAS TO THE PUBLIC, SO HERE FEDERAL AGENCIES REGULATE THE FLOW OF
MAIL.  WE DO NOT HAVE HERE, ANY MORE THAN WE HAD IN HANNEGAN V.
ESQUIRE, INC., 327 U.S. 146, ANY QUESTION CONCERNING THE EXTENT TO
WHICH CONGRESS MAY CLASSIFY THE MAIL AND FIX THE CHARGES FOR ITS
CARRIAGE.  NOR DO WE REACH THE QUESTION WHETHER THE STANDARD HERE
APPLIED COULD PASS CONSTITUTIONAL MUSTER.  NOR DO WE DEAL WITH THE
RIGHT OF CUSTOMS TO INSPECT MATERIAL FROM ABROAD FOR CONTRABAND.  WE
REST ON THE NARROW GROUND THAT THE ADDRESSEE IN ORDER TO RECEIVE HIS
MAIL MUST REQUEST IN WRITING THAT IT BE DELIVERED.  THIS AMOUNTS IN OUR
JUDGMENT TO AN UNCONSTITUTIONAL ABRIDGMENT OF THE ADDRESSEE'S FIRST
AMENDMENT RIGHTS.  THE ADDRESSEE CARRIES AN AFFIRMATIVE OBLIGATION
WHICH WE DO NOT THINK THE GOVERNMENT MAY IMPOSE ON HIM.  THIS
REQUIREMENT IS ALMOST CERTAIN TO HAVE A DETERRENT EFFECT, ESPECIALLY AS
RESPECTS THOSE WHO HAVE SENSITIVE POSITIONS.  THEIR LIVELIHOOD MAY BE
DEPENDENT ON A SECURITY CLEARANCE.  PUBLIC OFFICIALS, LIKE
SCHOOLTEACHERS WHO HAVE NO TENURE, MIGHT THINK THEY WOULD INVITE
DISASTER IF THEY READ WHAT THE FEDERAL GOVERNMENT SAYS CONTAINS THE
SEEDS OF TREASON.  APART FROM THEM, ANY ADDRESSEE IS LIKELY TO FEEL
SOME INHIBITION IN SENDING FOR LITERATURE WHICH FEDERAL OFFICIALS HAVE
CONDEMNED AS "COMMUNIST POLITICAL PROPAGANDA."  THE REGIME OF THIS ACT
IS AT WAR WITH THE "UNINHIBITED, ROBUST, AND WIDE-OPEN" DEBATE AND
DISCUSSION THAT ARE CONTEMPLATED BY THE FIRST AMENDMENT.  NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254, 270. 

WE REVERSE THE JUDGMENT IN NO. 491 AND AFFIRM THAT IN NO. 848.  IT IS
SO ORDERED. 

FN1  "THE TERM 'POLITICAL PROPAGANDA' INCLUDES ANY ORAL, VISUAL,
GRAPHIC, WRITTEN, PICTORIAL, OR OTHER COMMUNICATION OR EXPRESSION BY
ANY PERSON (1) WHICH IS REASONABLY ADAPTED TO, OR WHICH THE PERSON
DISSEMINATING THE SAME BELIEVES WILL, OR WHICH HE INTENDS TO, PREVAIL
UPON, INDOCTRINATE, CONVERT, INDUCE, OR IN ANY OTHER WAY INFLUENCE A
RECIPIENT OR ANY SECTION OF THE PUBLIC WITHIN THE UNITED STATES WITH
REFERENCE TO THE POLITICAL OR PUBLIC INTERESTS, POLICIES, OR RELATIONS
OF A GOVERNMENT OF A FOREIGN COUNTRY OR A FOREIGN POLITICAL PARTY OR
WITH REFERENCE TO THE FOREIGN POLICIES OF THE UNITED STATES OR PROMOTE
IN THE UNITED STATES RACIAL, RELIGIOUS, OR SOCIAL DISSENSIONS, OR (2)
WHICH ADVOCATES, ADVISES, INSTIGATES, OR PROMOTES ANY RACIAL, SOCIAL,
POLITICAL, OR RELIGIOUS DISORDER, CIVIL RIOT, OR OTHER CONFLICT
INVOLVING THE USE OF FORCE OR VIOLENCE IN ANY OTHER AMERICAN REPUBLIC
OR THE OVERTHROW OF ANY GOVERNMENT OR POLITICAL SUBDIVISION OF ANY
OTHER AMERICAN REPUBLIC BY ANY MEANS INVOLVING THE USE OF FORCE OR
VIOLENCE."  22 U.S.C. SEC. 611(J). 

FN2  A POST OFFICE REGULATION PERMITS A PATRON TO REFUSE DELIVERY OF
ANY PIECE OF MAIL (39 CFR SEC. 44.1(A)) OR TO REQUEST IN WRITING A
WITHHOLDINGFROM DELIVERY FOR A PERIOD NOT TO EXCEED TWO YEARS OF
SPECIFICALLY DESCRIBED ITEMS OF CERTAIN MAIL, INCLUDING "FOREIGN
PRINTED MATTER."  IBID. AND SEE SCHWARTZ, THE MAIL MUST NOT GO THROUGH,
11 U.C.L.A.L. REV. 805, 847. 

FN3  "WHATEVER MAY HAVE BEEN THE VOLUNTARY NATURE OF THE POSTAL
SYSTEM IN THE PERIOD OF ITS ESTABLISHMENT, IT IS NOW THE MAIN ARTERY
THROUGH WHICH THE BUSINESS, SOCIAL, AND PERSONAL AFFAIRS OF THE PEOPLE
ARE CONDUCTED AND UPON WHICH DEPENDS IN A GREATER DEGREE THAN UPON ANY
OTHER ACTIVITY OF GOVERNMENT THE PROMOTION OF THE GENERAL WELFARE." 
PIKE V. WALKER, 73 APP. D.C. 289, 291 F.2D 37, 39.  AND SEE GELLHORN,
INDIVIDUAL FREEDOM AND GOVERNMENTAL RESTRAINTS, P. 88 ET SEQ. (1956). 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE GOLDBERG JOINS,
CONCURRING. 

THESE MIGHT BE TROUBLESOME CASES IF THE ADDRESSEES PREDICATED THEIR
CLAIM FOR RELIEF UPON THE FIRST AMENDMENT RIGHTS OF THE SENDERS.  TO
SUCCEED, THE ADDRESSEES WOULD THEN HAVE TO ESTABLISH THEIR STANDING TO
VINDICATE THE SENDERS' CONSTITUTIONAL RIGHTS, CF.  DOMBROWSKI V.
PFISTER, 380 U.S. 479, 486, AS WELL AS FIRST AMENDMENT PROTECTION FOR
POLITICAL PROPAGANDA PREPARED AND PRINTED ABROAD BY OR ON BEHALF OF A
FOREIGN GOVERNMENT, CF. JOHNSON V. EISENTRAGER, 339 U.S. 763, 781-785. 
HOWEVER, THOSE QUESTIONS ARE NOT BEFORE US, SINCE THE ADDRESSEES ASSERT
FIRST AMENDMENT CLAIMS IN THEIR OWN RIGHT; THEY CONTEND THAT THE
GOVERNMENT IS POWERLESS TO INTERFERE WITH THE DELIVERY OF THE MATERIAL
BECAUSE THE FIRST AMENDMENT "NECESSARILY PROTECTS THE RIGHT TO RECEIVE
IT."  MARTIN V. CITY OF STRUTHERS, 319 U.S. 141, 143.  SINCE THE
DECISIONS TODAY UPHOLD THIS CONTENTION, I JOIN THE COURT'S OPINION. 

IT IS TRUE THAT THE FIRST AMENDMENT CONTAINS NO SPECIFIC GUARANTEE OF
ACCESS TO PUBLICATIONS.  HOWEVER, THE PROTECTION OF THE BILL OF RIGHTS
GOES BEYOND THE SPECIFIC GUARANTEES TO PROTECT FROM CONGRESSIONAL
ABRIDGMENT THOSE EQUALLY FUNDAMENTAL PERSONAL RIGHTS NECESSARY TO MAKE
THE EXPRESS GUARANTEES FULLY MEANINGFUL.  SEE, E.G., BOLLING V. SHARPE,
347 U.S. 497; NAACP V. ALABAMA, 357 U.S. 449; KENT V. DULLES, 357 U.S.
116; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500.  I THINK THE RIGHT
TO RECEIVE PUBLICATIONS IS SUCH A FUNDAMENTAL RIGHT.  THE DISSEMINATION
OF IDEAS CAN ACCOMPLISH NOTHING IF OTHERWISE WILLING ADDRESSEES ARE NOT
FREE TO RECEIVE AND CONSIDER THEM.  IT WOULD BE A BARREN MARKETPLACE OF
IDEAS THAT HAD ONLY SELLERS AND NO BUYERS.    EVEN IF WE WERE TO ACCEPT
THE CHARACTERIZATION OF THIS STATUTE AS A REGULATION NOT INTENDED TO
CONTROL THE CONTENT OF SPEECH, BUT ONLY INCIDENTALLY LIMITING ITS
UNFETTERED EXERCISE, SEE ZEMEL V. RUST, 381 U.S. 1, 16-17, WE "HAVE
CONSISTENTLY HELD THAT ONLY A COMPELLING GOVERNMENT INTEREST IN THE
REGULATION OF A SUBJECT WITHIN GOVERNMENTAL CONSTITUTIONAL POWER TO
REGULATE CAN JUSTIFY LIMITING FIRST AMENDMENT FREEDOMS."  NAACP V.
BUTTON, 371 U.S. 415, 438.  THE GOVERNMENT'S BRIEF EXPRESSLY DISAVOWS
ANY SUPPORT FOR THIS STATUTE "IN LARGE PUBLIC INTERESTS SUCH AS WOULD
BE NEEDED TO JUSTIFY A TRUE RESTRICTION UPON FREEDOM OF EXPRESSION OR
INQUIRY."  RATHER THE GOVERNMENT ARGUES THAT, SINCE AN ADDRESSEE TAKING
THE TROUBLE TO RETURN THE CARD CAN RECEIVE THE PUBLICATION NAMED IN IT,
ONLY INCONVENIENCE AND NOT AN ABRIDGMENT IS INVOLVED.  BUT INHIBITION
AS WELL AS PROHIBITION AGAINST THE EXERCISE OF PRECIOUS FIRST AMENDMENT
RIGHTS IS A POWER DENIED TO GOVERNMENT.  SEE, E.G., FREEDMAN V.
MARYLAND, 380 U.S. 51; GARRISON V. LOUISIANA, 379 U.S. 64; SPEISER V.
RANDALL, 357 U.S. 513.  THE REGISTRATION REQUIREMENT WHICH WAS STRUCK
DOWN IN THOMAS V. COLLINS, 323 U.S. 516, WAS NOT APPRECIABLY MORE
BURDENSOME.  MOREOVER, THE ADDRESSEE'S FAILURE TO RETURN THIS FORM
RESULTS IN NONDELIVERY NOT ONLY OF THE PARTICULAR PUBLICATION BUT ALSO
OF ALL SIMILAR PUBLICATIONS OR MATERIAL.   THUS, ALTHOUGH THE ADDRESSEE
MAY BE CONTENT NOT TO RECEIVE THE PARTICULAR PUBLICATION, AND HENCE
DOES NOT RETURN THE CARD, THE CONSEQUENCE IS A DENIAL OF ACCESS TO LIKE
PUBLICATIONS WHICH HE MAY DESIRE TO RECEIVE.  IN ANY EVENT, WE CANNOT
SUSTAIN AN INTRUSION OF FIRST AMENDMENT RIGHTS ON THE GROUND THAT THE
INTRUSION IS ONLY A MINOR ONE.  AS THE COURT SAID IN BOYD V. UNITED
STATES, 116 U.S. 616, 635:

"IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS MILDEST AND LEAST
REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET
THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT APPROACHES AND
SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE.  THIS CAN ONLY BE
OBVIATED BY ADHERING TO THE RULE THAT CONSTITUTIONAL PROVISIONS FOR THE
SECURITY OF PERSON AND PROPERTY SHOULD BE LIBERALLY CONSTRUED.  A CLOSE
AND LITERAL CONSTRUCTION DEPRIVES THEM OF HALF THEIR EFFICACY, AND
LEADS TO GRADUAL DEPRECIATION OF THE RIGHT, AS IF IT CONSISTED MORE IN
SOUND THAN IN SUBSTANCE.  IT IS THE DUTY OF COURTS TO BE WATCHFUL FOR
THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST ANY STEALTHY
ENCROACHMENTS THEREON." 

THE GOVERNMENT ASSERTS THAT CONGRESS ENACTED THE STATUTE IN THE
AWARENESS THAT COMMUNIST POLITICAL PROPAGANDA MAILED TO ADDRESSEES IN
THE UNITED STATES ON BEHALF OF FOREIGN GOVERNMENTS WAS OFTEN OFFENSIVE
TO THE RECIPIENTS AND CONSTITUTED A SUBSIDY TO THE VERY GOVERNMENTS
WHICH BAR THE DISSEMINATION OF PUBLICATIONS FROM THE UNITED STATES. 
BUT THE SENSIBILITIES OF THE UNWILLING RECIPIENT ARE FULLY SAFEGUARDED
BY 39 CFR SEC. 44.1(A) (SUPP. 1965) UNDER WHICH THE POST OFFICE WILL
HONOR HIS REQUEST TO STOP DELIVERY; THE STATUTE UNDER CONSIDERATION, ON
THE OTHER HAND, IMPEDES DELIVERY EVEN TO A WILLING ADDRESSEE.  IN THE
AREA OF FIRST AMENDMENT FREEDOMS, GOVERNMENT HAS THE DUTY TO CONFINE
ITSELF TO THE LEAST INTRUSIVE REGULATIONS WHICH ARE ADEQUATE FOR THE
PURPOSE.  CF. BUTLER V. MICHIGAN, 352 U.S. 380.  THE ARGUMENT THAT THE
STATUTE IS JUSTIFIED BY THE OBJECT OF AVOIDING THE SUBSIDIZATION OF
PROPAGANDA OF FOREIGN GOVERNMENTS WHICH BAR AMERICAN PROPAGANDA NEEDS
LITTLE COMMENT.  IF THE GOVERNMENT WISHES TO WITHDRAW A SUBSIDY OR A
PRIVILEGE, IT MUST DO SO BY MEANS AND ON TERMS WHICH DO NOT ENDANGER
FIRST AMENDMENT RIGHTS.  CF. SPEISER V. RANDALL, SUPRA. THAT THE
GOVERNMENTS WHICH ORIGINATE THIS PROPAGANDA THEMSELVES HAVE NO
EQUIVALENT GUANANTEES ONLY HIGHLIGHTS THE CHERISHED VALUES OF OUR
CONSTITUTIONAL FRAMEWORK; IT CAN NEVER JUSTIFY EMULATING THE PRACTICE
OF RESTRICTIVE REGIMES IN THE NAME OF EXPEDIENCY. 

MR. JUSTICE HARLAN CONCURS IN THE JUDGMENT OF THE COURT ON THE
GROUNDS SET FORTH IN THIS CONCURRING OPINION. 
..END :




MINNESOTA MINING & MANUFACTURING CO. V. NEW JERSEY WOOD FINISHING CO.
381 U.S. 311 


NO. 291.  ARGUED APRIL 29, 1965.  - DECIDED MAY 24, 1965.  - 332 F.2D
346, AFFIRMED. 


RESPONDENT FILED THIS PRIVATE ANTITRUST SUIT IN 1961, ALLEGING
VIOLATIONS OF SEC 7 OF THE CLAYTON ACT AND SECS 1 AND 2 OF THE SHERMAN
ACT, ARISING OUT OF PETITIONER'S ACQUISITION IN 1956 OF THE ASSETS OF
INSULATION AND WIRES, INC., WHICH HAD BEEN THE PRIMARY DISTRIBUTOR OF
ELECTRIC INSULATION MATERIALS MANUFACTURED BY RESPONDENT.  PETITIONER
CLAIMED THAT THE ACTION WAS BARRED BY THE FOUR-YEAR LIMITATION
PROVISION OF SEC 4B OF THE CLAYTON ACT, BUT RESPONDENT ASSERTED THAT
THE BAR OF THE STATUTE WAS TOLLED UNDER SEC 5(B) BY A PROCEEDING TIMELY
FILED IN 1960 AGAINST PETITIONER PURSUANT TO SEC 7 OF THE CLAYTON ACT
BY THE FEDERAL TRADE COMMISSION (FTC).  THAT PROCEEDING RESULTED IN A
CONSENT ORDER UNDER WHICH PETITIONER WAS DIRECTED TO DIVEST ITSELF OF
THE ACQUIRED ASSETS.  SECTION 5(A) OF THE CLAYTON ACT MAKES A FINAL
JUDGMENT OR DECREE IN ANY CIVIL OR CRIMINAL PROCEEDING BROUGHT BY OR ON
BEHALF OF THE UNITED STATES PRIMA FACIE EVIDENCE IN LATER PRIVATE SUITS
AS TO ALL MATTERS RESPECTING WHICH THAT JUDGMENT OR DECREE WOULD BE AN
ESTOPPEL AS BETWEEN THE PARTIES.  SECTION 5(B) PROVIDES THAT A CIVIL OR
CRIMINAL PROCEEDING INSTITUTED BY THE UNITED STATES TO PREVENT,
RESTRAIN OR PUNISH VIOLATIONS OF THE ANTITRUST LAWS TOLLS THE STATUTE
OF LIMITATIONS DURING THE PENDENCY THEREOF AND FOR ONE YEAR THEREAFTER
FOR PRIVATE ACTIONS ARISING UNDER THOSE LAWS AND BASED ON ANY MATTER
COMPLAINED OF IN THE GOVERNMENT SUIT.  THE DISTRICT COURT HELD THAT THE
STATUTE HAD BEEN TOLLED BY SEC 5(B) AND THAT THE SUIT WAS TIMELY FILED,
AND THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  SECTIONS 5(A) AND 5(B) OF THE CLAYTON ACT ARE NOT WHOLLY
INTERDEPENDENT OR COEXTENSIVE.  PP. 316-318. 

(A)  THE WORDS "FINAL JUDGMENT OR DECREE" ARE IMPORTANT IN THE
APPLICATION OF SEC 5(A), WHILE SEC 5(B), WHICH APPLIES TO EVERY PRIVATE
RIGHT OF ACTION BASED ON ANY MATTER COMPLAINED OF IN THE GOVERNMENT
SUIT AND IS NOT LIMITED TO MATTERS WHICH WOULD OPERATE AS AN ESTOPPEL,
TOLLS THE STATUTE OF LIMITATIONS REGARDLESS OF WHETHER A FINAL JUDGMENT
OR DECREE IS ENTERED.  PP. 316-317. 

(B)  IN SEC 5(A) CONGRESS WAS CONCERNED WITH THE NARROW ISSUE OF THE
USE OF JUDGMENTS OR DECREES AS PRIMA FACIE EVIDENCE IN PRIVATE SUITS,
WHEREAS IN SEC 5(B) CONGRESS MEANT TO ASSIST PRIVATE LITIGANTS IN
OBTAINING ALL THE BENEFITS THEY MIGHT CULL FROM GOVERNMENT ANTITRUST
ACTIONS.  P. 317. 

2.  ABSENT ANY SPECIFIC LEGISLATIVE HISTORY ON THE INCLUSION OF FTC
ACTIONS WITHIN THE TOLLING PROVISION, THE ISSUE IS RESOLVED BY RELIANCE
ON THE CLEAR EXPRESSION OF CONGRESSIONAL INTENTION THAT PRIVATE SUITORS
BE GIVEN THE BENEFITS OF PRIOR GOVERNMENT ACTIONS, WHICH WOULD
NECESSARILY INCLUDE FTC PROCEEDINGS.  THE BENEFITS OF SEC 5(B) SHOULD
NOT DEPEND ON AN ARBITRARY ALLOCATION OF ENFORCEMENT RESPONSIBILITY
BETWEEN THE DEPARTMENT OF JUSTICE AND THE FTC.  PP. 320-322. 

3.  PETITIONER'S SHERMAN ACT CLAIMS, ARISING FROM THE ASSET
ACQUISITION WHICH WAS THE BASIS OF THE FTC PROCEEDING, ALTHOUGH
REQUIRING A GREATER BURDEN OF PROOF THAN THE CLAYTON ACT CHARGES,
CLEARLY ARE BASED "IN PART ON ANY MATTER COMPLAINED OF" IN THE FTC
ACTION.  PP. 322-324. 

MINNESOTA MINING & MANUFACTURING CO. V. NEW JERSEY WOOD FINISHING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS PRIVATE TREBLE-DAMAGE ANTITRUST ACTION WAS BROUGHT BY THE NEW
JERSEY WOOD FINISHING COMPANY AGAINST MINNESOTA MINING AND
MANUFACTURING COMPANY AND THE ESSEX WIRE CORPORATION.  (FN1)
RESPONDENT'S ORIGINAL COMPLAINT WAS FILED ON NOVEMBER 20, 1961.  (FN2)
IT ALLEGED VIOLATIONS OF SEC 7 OF THE CLAYTON ACT, (FN3) A CONSPIRACY
TO RESTRAIN COMMERCE IN ELECTRICAL INSULATION PRODUCTS IN VIOLATION OF
SEC 1 OF THE SHERMAN ACT AND AN ATTEMPT TO MONOPOLIZE THE SAME AS
PROHIBITED BY SEC 2.  (FN4)  THE SUBSTANCE OF THE COMPLAINT CONCERNED
THE ACQUISITION IN 1956 OF ALL THE ASSETS OF INSULATION AND WIRES,
INC., A SUBSIDIARY OF ESSEX, BY MINNESOTA MINING AND AN ALLEGED
CONSPIRACY TO RESTRAIN TRADE IN ELECTRICAL INSULATION PRODUCTS.  THE
LATTER CLAIMED THAT THE SUIT WAS BARRED BY THE FOUR-YEAR LIMITATION
PROVISION OF THE CLAYTON ACT.  (FN5)  HOWEVER, NEW JERSEY WOOD ASSERTED
THAT THE BAR OF THE STATUTE HAD BEEN TOLLED BY A PROCEEDING FILED IN
1960 AGAINST MINNESOTA MINING BY THE FEDERAL TRADE COMMISSION UNDER SEC
7 OF THE CLAYTON ACT.  THAT ACTION RESULTED IN A CONSENT ORDER UNDER
WHICH MINNESOTA MINING WAS DIRECTED TO DIVEST ITSELF OF THE ASSETS
ACQUIRED.  SECTION 5(B) OF THE CLAYTON ACT (FN6) PROVIDES THAT A "CIVIL
OR CRIMINAL PROCEEDING  ...  INSTITUTED BY THE UNITED STATES TO
PREVENT, RESTRAIN, OR PUNISH VIOLATIONS OF ANY OF THE ANTITRUST LAWS"
SUSPENDS THE RUNNING OF THE STATUTE OF LIMITATIONS DURING THE PENDENCY
THEREOF AND FOR ONE YEAR THEREAFTER WITH RESPECT TO PRIVATE ACTIONS
ARISING UNDER THOSE LAWS AND BASED ON ANY MATTER COMPLAINED OF IN THE
GOVERNMENT SUIT.  THE QUESTIONS HERE ARE WHETHER PROCEEDINGS BY THE
FEDERAL TRADE COMMISSION TOLL THE RUNNING OF THE SEC. 4B STATUTE OF
LIMITATIONS TO THE SAME EXTENT AS DO JUDICIAL PROCEEDINGS AND, IF THEY
DO, WHETHER THE CLAIM OF NEW JERSEY WOOD IS BASED ON "ANY MATTER
COMPLAINED OF" IN THE COMMISSION ACTION.  THE DISTRICT COURT DENIED
MINNESOTA MINING'S MOTION TO DISMISS, HOLDING THAT THE FOUR-YEAR
STATUTE HAD BEEN TOLLED BY SEC 5(B) AND THAT THIS SUIT WAS TIMELY
FILED.  216 F. SUPP. 507.  THE COURT OF APPEALS AFFIRMED.  332 F.2D
346.  WE GRANTED CERTIORARI BECAUSE OF A CONFLICT BETWEEN CIRCUITS
(FN7) AND THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE
CLAYTON ACT.  379 U.S. 877. 

   I. 

NEW JERSEY WOOD IS ENGAGED IN THE MANUFACTURE OF ELECTRICAL
INSULATION MATERIALS, SOME OF WHICH IT SELLS TO INDEPENDENT
DISTRIBUTORS WHO, IN TURN, SELL TO WIRE AND CABLE MANUFACTURERS AND
FABRICATORS.  MINNESOTA MINING IS A DIVERSIFIED COMPANY, WITH ONE OF
ITS DIVISIONS PRODUCING ELECTRICAL INSULATION MATERIALS.  ESSEX IS A
SUBSTANTIAL CONSUMER OF ELECTRICAL INSULATION MATERIAL.   IT OWNED
INSULATION WIRES WHICH DISTRIBUTES THAT TYPE OF MATERIAL. 

IN AUGUST 1956 MINNESOTA MINING BOUGHT ALL THE ASSETS OF INSULATION
WIRES AND IN 1960 THE FEDERAL TRADE COMMISSION FILED A PROCEEDING
AGAINST IT UNDER SEC 7 OF THE CLAYTON ACT WHICH RESULTED IN A CONSENT
ORDER DIRECTING THE DIVESTITURE BY MINNESOTA MINING OF THE ASSETS SO
ACQUIRED.  THIS ORDER WAS DATED AUGUST 24, 1961.  THE COMMISSION
CHARGED THAT PRIOR TO 1953 MINNESOTA MINING WAS THE LEADING
MANUFACTURER OF ELECTRICAL INSULATION TAPE; THAT THROUGH FIVE
TRANSACTIONS IN THE YEARS 1952 THROUGH 1956 IT HAD ALSO BROUGHT UNDER
ITS CONTROL SUBSTANTIAL SHARES OF OTHER MAJOR ELECTRICAL PRODUCT LINES;
AND THAT ITS SUBSEQUENT ACQUISITION OF TWO OF THE THREE LARGEST
DISTRIBUTORS OF THESE PRODUCTS MIGHT HAVE THE EFFECT OF ACTUALLY OR
POTENTIALLY LESSENING COMPETITION AND TENDING TO CREATE A MONOPOLY IN
VARIOUS ASPECTS OF THAT COMMERCE.  ONE OF THE TWO DISTRIBUTORS SO
ACQUIRED WAS INSULATION WIRES. 

THEREAFTER, WITHIN A YEAR, THIS SUIT WAS FILED.  WE NEED NOT DETAIL
THE ALLEGATIONS OF THE COMPLAINT.  IT IS SUFFICIENT TO SAY THAT THE
GIST OF IT WAS THAT PRIOR TO AUGUST 1956 INSULATION WIRES WAS THE
PRIMARY DISTRIBUTOR OF NEW JERSEY WOOD PRODUCTS THROUGHOUT THE UNITED
STATES; THAT IN AUGUST 1956 MINNESOTA MINING ACQUIRED ALL OF THE ASSETS
OF INSULATION WIRES AND DURING THE NEXT MONTH NOTIFIED NEW JERSEY WOOD
THAT BEGINNING IN JANUARY 1957 INSULATION WIRES WOULD NO LONGER
DISTRIBUTE ITS PRODUCTS.  THE COMPLAINT ALSO CHARGED MINNESOTA MINING
AND ESSEX WITH CONSPIRING TO RESTRAIN TRADE AND COMMERCE IN THE
MANUFACTURE, SALE AND DISTRIBUTION OF ELECTRICAL INSULATION PRODUCTS
BEGINNING WITH THE ACQUISITION OF INSULATION WIRES AND CONTINUING UNTIL
THE FILING OF THIS SUIT.  THERE WERE NUMEROUS OVERT ACTS ALLEGED AS
BEING IN FURTHERANCE OF THE CONSPIRACY, THE FIRST OF WHICH WAS THAT
ACQUISITION. 

                                       II. 

AT THE OUTSET IT IS NECESSARY TO EXAMINE SEC 5(A) OF THE CLAYTON ACT
(FN8) AND ITS RELATIONSHIP TO SEC 5(B).  THE FORMER MAKES A FINAL
JUDGMENT OR DECREE IN ANY CIVIL OR CRIMINAL PROCEEDING BROUGHT BY OR ON
BEHALF OF THE UNITED STATES PRIMA FACIE EVIDENCE IN SUBSEQUENT PRIVATE
SUITS "AS TO ALL MATTERS RESPECTING WHICH SAID JUDGMENT OR DECREE WOULD
BE AN ESTOPPEL AS BETWEEN THE PARTIES THERETO."  SEVERAL DISTINCTIONS
BETWEEN THESE SECTIONS ARE APPARENT AND SUGGEST THAT THEY ARE NOT
WHOLLY INTERDEPENDENT.  FIRST, THE WORDS "FINAL JUDGMENT OR DECREE" ARE
USED IN SEC 5(A) AND ARE OF CRUCIAL SIGNIFICANCE IN ITS APPLICATION. 
HOWEVER, SEC 5(B) TOLLS THE STATUTE OF LIMITATIONS SET OUT IN SEC 4B
FROM THE TIME SUIT IS INSTITUTED BY THE UNITED STATES REGARDLESS OF
WHETHER A FINAL JUDGMENT OR DECREE IS ULTIMATELY ENTERED.  ITS
APPLICABILITY IN NO WAY TURNS ON THE SUCCESS OF THE GOVERNMENT IN
PROSECUTING ITS CASE.  MOREOVER, UNDER SEC 5(A) THE JUDGMENT OR DECREE
MAY BE USED ONLY AS TO MATTERS RESPECTING WHICH IT WOULD OPERATE AS AN
ESTOPPEL BETWEEN THE PARTIES.  NO SUCH LIMITATION APPEARS IN THE
TOLLING PROVISION.  IT APPLIES TO EVERY PRIVATE RIGHT OF ACTION BASED
IN WHOLE OR IN PART ON "ANY MATTER" COMPLAINED OF IN THE GOVERNMENT
SUIT. 

WHEN WE TURN FROM THE EXPRESS LANGUAGE OF THESE TWO STATUTORY
PROVISIONS TO THE CONGRESSIONAL POLICIES UNDERLYING THEM, IT BECOMES
EVEN MORE APPARENT THAT THE APPLICABILITY OF SEC 5(A) TO FEDERAL TRADE
COMMISSION ACTIONS SHOULD NOT CONTROL THE QUESTION WHETHER SUCH
PROCEEDINGS TOLL THE STATUTE OF LIMITATIONS.  WE HAVE DISCUSSED THESE
POLICIES AT GREATER LENGTH BELOW.  AT THIS JUNCTURE IT IS SUFFICIENT TO
SAY THAT IN FRAMING SEC 5(A) CONGRESS FOCUSED ON THE NARROW ISSUE OF
THE USE BY PRIVATE PARTIES OF JUDGMENTS OR DECREES AS PRIMA FACIE
EVIDENCE.  THIS WAS RECOGNIZED IN EMICH MOTORS CORP. V. GENERAL MOTORS
CORP., 340 U.S. 558 (1951), WHERE WE STATED THAT THE PURPOSE OF SEC
5(A) WAS "TO MINIMIZE THE BURDENS OF LITIGATION FOR INJURED PRIVATE
SUITORS BY MAKING AVAILABLE TO THEM ALL MATTERS PREVIOUSLY ESTABLISHED
BY THE GOVERNMENT IN ANTITRUST ACTIONS" AND TO PERMIT THEM "AS LARGE AN
ADVANTAGE AS THE ESTOPPEL DOCTRINE WOULD AFFORD HAD THE GOVERNMENT
BROUGHT SUIT."  ID., AT 568.  AS WE SHALL SHOW, HOWEVER, ITS PURPOSE IN
ADOPTING SEC 5(B) WAS NOT SO LIMITED, FOR IT WAS NOT THEN DEALING WITH
THE DELICATE AREA IN WHICH A JUDGMENT SECURED IN AN ACTION BETWEEN TWO
PARTIES MAY BE USED BY A THIRD.  WHATEVER AMBIGUITIES MAY EXIST IN THE
LEGISLATIVE HISTORY OF THESE PROVISIONS AS TO OTHER QUESTIONS, IT IS
PLAIN THAT IN SEC 5(B) CONGRESS MEANT TO ASSIST PRIVATE LITIGANTS IN
UTILIZING ANY BENEFITS THEY MIGHT CULL FROM GOVERNMENT ANTITRUST
ACTIONS.  SEE S. REP. NO. 619, 84TH CONG., 1ST SESS., 6.  THE
DISTINCTION WAS EMPHASIZED IN UNION CARBIDE & CARBON CORP. V. NISLEY,
300 F.2D 561 (1962), WHERE THE COURT, AFTER NOTING THE ANALYSIS OF SEC
5(A) SET OUT IN EMICH MOTORS CORP., SUPRA, STATED THAT: 

"THE COROLLARY PURPOSE OF THE TOLLING PROVISIONS OF THE SECOND
PARAGRAPH OF SECTION 5 (NOW SEC 5(B)) IS TO VOUCHSAFE THE INTENDED
BENEFITS OF RELATED GOVERNMENT PROCEEDINGS BY SUSPENDING THE RUNNING OF
THE STATUTE OF LIMITATIONS UNTIL THE TERMINATION OF THE GOVERNMENT
PROCEEDINGS, AND ALLOWING THE PRIVATE SUITOR ONE YEAR THEREAFTER IN
WHICH TO PREPARE AND FILE HIS SUIT.  THE COMPETENCY OF A GOVERNMENT
JUDGMENT IN A PRIVATE SUIT IS NECESSARILY RESTRICTED TO THE
REQUIREMENTS OF DUE PROCESS.  BUT THE TOLLING OF THE STATUTE DURING THE
PENDENCY OF THE GOVERNMENT LITIGATION IS NOT SO LIMITED."  ID., AT
569. 

IN OUR VIEW, THEREFORE, THE TWO SECTIONS ARE NOT NECESSARILY
COEXTENSIVE; THEY ARE GOVERNED BY DIFFERENT CONSIDERATIONS AS WELL AS
CONGRESSIONAL POLICY OBJECTIVES.  THIS MAKES SEC 5(B) READILY SEVERABLE
FROM SEC 5(A).  EVEN IF WE ASSUMED ARGUENDO THAT SEC 5(A) IS
INAPPLICABLE TO COMMISSION PROCEEDINGS - A QUESTION UPON WHICH WE
VENTURE NO OPINION - THAT CONCLUSION WOULD BE IMMATERIAL IN OUR
CONSIDERATION OF SEC 5(B) AND SEC 4B.  CONGRESS HAS EXPRESSED ITS
BELIEF THAT PRIVATE ANTITRUST LITIGATION IS ONE OF THE SUREST WEAPONS
FOR EFFECTIVE ENFORCEMENT OF THE ANTITRUST LAWS.  THIS CONSTRUCTION
WILL LEND CONSIDERABLE IMPETUS TO THAT POLICY. 

                                     III. 

PLEA OF PRESIDENT WILSON.  IN A SPEECH TO THE CONGRESS ON JANUARY 20,
1914, HE URGED THAT A LAW BE ENACTED WHICH WOULD PERMIT VICTIMS OF
ANTITRUST VIOLATIONS TO HAVE "REDRESS UPON THE FACTS AND JUDGMENTS
PROVED AND ENTERED IN SUITS BY THE GOVERNMENT" AND THAT "THE STATUTE OF
LIMITATIONS  ...  BE SUFFERED TO RUN AGAINST SUCH LITIGANTS ONLY FROM
THE DATE OF THE CONCLUSION OF THE GOVERNMENT'S ACTION."  51 CONG. REC.
1964.  THE BROAD AIM OF THIS ENACTMENT WAS TO USE "PRIVATE SELF
INTEREST AS A MEANS OF ENFORCEMENT" OF THE ANTITRUST LAWS.  BRUCE'S
JUICES, INC. V. AMERICAN CAN CO., 330 U.S. 743, 751 (1947).  THE
"ENTIRE PROVISION WAS INTENDED TO HELP PERSONS OF SMALL MEANS WHO ARE
INJURED IN THEIR PROPERTY OR BUSINESS BY COMBINATIONS OR CORPORATIONS
VIOLATING THE ANTITRUST LAWS."  H.R. REP. NO. 627, 63D CONG., 2D SESS.,
14.  SEE S. REP. NO. 619, SUPRA, AT 6. 

IT MAY BE, AS MINNESOTA MINING CONTENDS, THAT WHEN IT WAS ENACTED THE
TOLLING PROVISION WAS A LOGICAL BACKSTOP FOR THE PRIMA FACIE EVIDENCE
CLAUSE OF SEC 5(A).  BUT EVEN THOUGH SEC 5(B) COMPLEMENTS SEC 5(A) IN
THIS RESPECT BY PERMITTING A LITIGANT TO AWAIT THE OUTCOME OF
GOVERNMENT PROCEEDINGS AND USE ANY JUDGMENT OR DECREE RENDERED THEREIN
A BENEFIT WHICH OFTEN IS OF LIMITED PRACTICAL VALUE (FN9) - IT IS
CERTAINLY NOT RESTRICTED TO THAT EFFECT.  AS WE HAVE POINTED OUT, THE
TEXTUAL DISTINCTIONS AS WELL AS THE POLICY BASIS OF SEC 5(B) INDICATE
THAT IT WAS TO SERVE A MORE COMPREHENSIVE FUNCTION IN THE CONGRESSIONAL
SCHEME OF THINGS.  THE GOVERNMENT'S INITIAL ACTION MAY AID THE PRIVATE
LITIGANT IN A NUMBER OF OTHER WAYS.  THE PLEADINGS, TRANSCRIPTS OF
TESTIMONY, EXHIBITS AND DOCUMENTS ARE AVAILABLE TO HIM IN MOST
INSTANCES.  IN FACT, THE RULES OF THE COMMISSION SO PROVIDE.  16 CFR
SEC 1.132(E).  SEE GENERALLY 16 CFR SEC 1.131 ET SEQ. MOREOVER,
DIFFICULT QUESTIONS OF LAW MAY BE TESTED AND DEFINITELY RESOLVED BEFORE
THE PRIVATE LITIGANT ENTERS THE FRAY.  THE GREATER RESOURCES AND
EXPERTISE OF THE COMMISSION AND ITS STAFF RENDER THE PRIVATE SUITOR A
TREMENDOUS BENEFIT ASIDE FROM ANY VALUE HE MAY DERIVE FROM A JUDGMENT
OR DECREE.  INDEED, SO USEFUL IS THIS SERVICE THAT GOVERNMENT
PROCEEDINGS ARE RECOGNIZED AS A MAJOR SOURCE OF EVIDENCE FOR PRIVATE
PARTIES.  SEE BICKS, THE DEPARTMENT OF JUSTICE AND PRIVATE TREBLE
DAMAGE ACTIONS, 4 ANTITRUST BULL.  5 (1959); LOEVINGER, HANDLING A
PLAINTIFF'S ANTITRUST DAMAGE SUIT, 4 ANTITRUST BULL.  29 (1959). 

ADMITTEDLY, THERE IS LITTLE IN THE LEGISLATIVE HISTORY TO SUGGEST
THAT CONGRESS CONSCIOUSLY INTENDED TO INCLUDE COMMISSION ACTIONS WITHIN
THE SWEEP OF THE TOLLING PROVISION.  BUT NEITHER IS THERE ANY
SUBSTANTIAL EVIDENCE THAT IT CONSCIOUSLY INTENDED TO EXCLUDE THEM.  THE
FACT OF THE MATTER IS THAT THE RECORD OF THE 1914 LEGISLATIVE
PROCEEDINGS REVEALS AN ALMOST COMPLETE ABSENCE OF ANY DISCUSSION ON THE
TOLLING PROBLEM.  IT SEEMS THAT CONGRESS SIMPLY DID NOT CONSIDER THE
EXTENT OF ITS COVERAGE IN THE COURSE OF ITS DELIBERATIONS. 

IT IS IN LIGHT OF THIS LEGISLATIVE SILENCE THAT WE MUST DETERMINE
WHETHER SEC 4B IS TOLLED BY COMMISSION PROCEEDINGS.  IN RESOLVING THIS
QUESTION WE MUST NECESSARILY RELY ON THE ONE ELEMENT OF CONGRESSIONAL
INTENTION WHICH IS PLAIN ON THE RECORD - THE CLEARLY EXPRESSED DESIRE
THAT PRIVATE PARTIES BE PERMITTED THE BENEFITS OF PRIOR GOVERNMENT
ACTIONS.  IMPLICIT IN SUCH AN OBJECTIVE IS THE NECESSITY THAT THE
TOLLING PROVISION INCLUDE COMMISSION PROCEEDINGS.  OTHERWISE THE
BENEFITS FLOWING FROM A MAJOR SEGMENT OF THE GOVERNMENT'S ENFORCEMENT
EFFORT WOULD, IN MANY CASES, BE DENIED TO PRIVATE PARTIES.  IN THIS
CONNECTION, AND OF CRUCIAL SIGNIFICANCE, IS THE FACT THAT THE POTENTIAL
ADVANTAGES AVAILABLE TO SUCH LITIGANTS BECAUSE OF SEC 5(B) REACH FAR
BEYOND THE SPECIFIC AND LIMITED BENEFITS ACCRUING TO THEM UNDER SEC
5(A).  FURTHERMORE, THE SEC 5(B) ADVANTAGES FLOW AS NATURALLY FROM
COMMISSION PROCEEDINGS AS THEY DO FROM JUSTICE DEPARTMENT ACTIONS.  YET
PETITIONER CONTENDS THAT SEC 4B MUST BE TOLLED IN THE LATTER BUT NOT IN
THE FORMER.  SUCH A GRUDGING INTERPRETATION OF THE INTERRELATIONSHIP OF
SEC 5(B) AND SEC 4B, HOWEVER, WOULD COLLIDE HEAD-ON WITH CONGRESS'
BASIC POLICY OBJECTIVES.  ACCEPTANCE OF PETITIONER'S POSITION WOULD
MAKE ENJOYMENT OF THESE INTENDED BENEFITS TURN ON THE ARBITRARY
ALLOCATION OF ENFORCEMENT RESPONSIBILITY BETWEEN THE DEPARTMENT AND THE
COMMISSION, AND WE MUST THEREFORE REJECT IT.    IT IS TRUE THAT THE
PRECISE LANGUAGE OF SEC 5(B) DOES NOT CLEARLY ENCOMPASS COMMISSION
PROCEEDINGS.  BUT IT IS NOT THE LITERAL WORDING OF SUCH A PROVISION
THAT IS CONTROLLING WHERE, AS HERE, CONGRESS HAS EVIDENCED NEITHER
ACCEPTANCE NOR REJECTION OF EITHER INTERPRETATION, YET ONE EFFECTS A
CLEARLY EXPRESSED CONGRESSIONAL PURPOSE WHILE THE OTHER DEFEATS IT.  WE
STATED THE PIVOTAL QUESTION FOR DETERMINATION IN SUCH AN EVENT ONLY
THIS TERM IN BURNETT V. NEW YORK CENTRAL R. CO., 380 U.S. 424,
427(1965):  "WHETHER CONGRESSIONAL PURPOSE IS EFFECTUATED BY TOLLING
THE STATUTE OF LIMITATIONS IN GIVEN CIRCUMSTANCES."  IN ORDER TO
DETERMINE THAT INTENT, WE MUST EXAMINE "THE PURPOSES AND POLICIES
UNDERLYING THE LIMITATION PROVISION, THE ACT ITSELF, AND THE REMEDIAL
SCHEME DEVELOPED FOR THE ENFORCEMENT OF THE RIGHTS GIVEN BY THE ACT." 
IBID.  GUIDED BY THESE CRITERIA, WE THINK IT CLEAR THAT CONGRESSIONAL
POLICY SUSTAINING SEC 5(B) WOULD BE EFFECTIVELY SERVED ONLY BY TOLLING
THE STATUTE OF LIMITATIONS IN CASES SUCH AS THIS, AND WE DEEM THAT
POLICY CONTROLLING.  THIS ANALYSIS IS NOT A NOVEL ONE.  MR. JUSTICE
HOLMES, SITTING ON CIRCUIT, NOTED IN JOHNSON V. UNITED STATES, 163 F.
30, 32: 

"A STATUTE MAY INDICATE OR REQUIRE AS ITS JUSTIFICATION A CHANGE IN
THE POLICY OF THE LAW, ALTHOUGH IT EXPRESSES THAT CHANGE ONLY IN THE
SPECIFIC CASES MOST LIKELY TO OCCUR TO THE MIND.  THE LEGISLATURE HAS
THE POWER TO DECIDE WHAT THE POLICY OF THE LAW SHALL BE, AND IF IT HAS
INTIMATED ITS WILL, HOWEVER INDIRECTLY, THAT WILL SHOULD BE RECOGNIZED
AND OBEYED.  THE MAJOR PREMISE OF THE CONCLUSION EXPRESSED IN A
STATUTE, THE CHANGE OF POLICY THAT INDUCES THE ENACTMENT, MAY NOT BE
SET OUT IN TERMS, BUT IT IS NOT AN ADEQUATE DISCHARGE OF DUTY FOR
COURTS TO SAY:  WE SEE WHAT YOU ARE DRIVING AT, BUT YOU HAVE NOT SAID
IT, AND THEREFORE WE SHALL GO ON AS BEFORE." 

WE HOLD, THEREFORE, THAT THE LIMITATION PROVISION OF SEC 4B IS TOLLED
BY COMMISSION PROCEEDINGS TO THE SAME EXTENT AND IN THE SAME
CIRCUMSTANCES AS IT IS BY JUSTICE DEPARTMENT ACTIONS.  IN SO HOLDING WE
GIVE EFFECT TO CONGRESS' BASIC POLICY OBJECTIVES IN ENACTING SEC 5(B) -
OBJECTIVES WHICH WOULD BE FRUSTRATED SHOULD WE REACH A CONTRARY
CONCLUSION AND THEREBY DEPRIVE LARGE NUMBERS OF PRIVATE LITIGANTS OF
THE BENEFITS OF GOVERNMENT ANTITRUST SUITS SIMPLY BECAUSE THOSE SUITS
WERE PURSUED BY ONE GOVERNMENTAL AGENCY RATHER THAN THE OTHER. 

                                       IV. 

MINNESOTA MINING FURTHER CONTENDS THAT EVEN THOUGH SEC 5(B) TOLLS
COMMISSION PROCEEDINGS, THE SUIT HERE, INSOFAR AS IT ASSERTS SHERMAN
ACT CLAIMS, IS NOT BASED IN PART ON ANY MATTER COMPLAINED OF IN THE
COMMISSION'S PROCEEDING.  WE CANNOT AGREE. 

NEW JERSEY WOOD'S SHERMAN ACT CLAIMS REST ON AN ALLEGED CONSPIRACY TO
RESTRAIN AND ATTEMPT TO MONOPOLIZE TRADE AND COMMERCE IN THE
MANUFACTURE, SALE AND DISTRIBUTION OF ELECTRICAL INSULATION PRODUCTS. 
THE PURPOSES OF THE CONSPIRACY WERE ALLEGED TO BE: (1) TO CONTROL
INSULATION WIRES; (2) TO PREVENT IT FROM DISTRIBUTING NEW JERSEY WOOD
PRODUCTS; (3) TO INSURE THAT INSULATION WIRES' SUPPLIES WERE PURCHASED
FROM A MINNESOTA MINING SUBSIDIARY; (4) TO EFFECT TIE-IN SALES OF
ELECTRICAL INSULATION PRODUCTS WITH OTHER MINNESOTA MINING PRODUCTS;
AND (5) TO HAVE ESSEX DEAL ONLY WITH INSULATION WIRES IN PURCHASING
ELECTRICAL INSULATION PRODUCTS TO THE EXCLUSION OF COMPETITIVE
DISTRIBUTORS HANDLING NEW JERSEY WOOD PRODUCTS.  THE EFFECT OF THE
CONSPIRACY WAS ALLEGED TO BE THE COMPLETE DISRUPTION OF THE PATTERN OF
MANUFACTURE, SALE AND DISTRIBUTION THAT NEW JERSEY WOOD HAD ENJOYED
WITH INSULATION WIRES AND DENIAL TO IT OF ACCESS TO SUBSTANTIAL
NATIONAL MARKETS FOR ELECTRICAL INSULATION PRODUCTS. 

CERTAINLY THE ALLEGATIONS ARE BASED "IN PART" ON THE COMMISSION
ACTION.  IT CHARGED THAT THE INSULATION WIRES ACQUISITION, ALONG WITH
THAT OF ANOTHER DISTRIBUTOR, PLACED IN THE HANDS OF MINNESOTA MINING, A
MANUFACTURER, TWO OF THE THREE LARGEST DISTRIBUTORS IN THE BUSINESS;
THAT FOLLOWING THE ACQUISITIONS THESE DISTRIBUTORS DISCONTINUED
DISTRIBUTION OF THE PRODUCTS OF A NUMBER OF MANUFACTURERS WHO HAD USED
THEM PRIOR TO THEIR ACQUISITION BY MINNESOTA MINING; AND THAT THE
EFFECT OF SUCH ACTION BY MINNESOTA MINING WAS "THE ACTUAL OR POTENTIAL
LESSENING OF COMPETITION" IN THE MANUFACTURE, SALE AND DISTRIBUTION OF
INSULATION PRODUCTS AND THE FORECLOSURE OF OTHER MANUFACTURERS FROM A
SUBSTANTIAL SHARE OF THE MARKETS FOR SAID PRODUCTS.  IT APPEARS TO US
THAT BOTH SUITS SET UP SUBSTANTIALLY THE SAME CLAIMS.  IT IS TRUE THAT
THE COMMISSION'S CLAYTON ACT PROCEEDING REQUIRED PROOF ONLY OF A
POTENTIAL ANTICOMPETITIVE EFFECT WHILE THE SHERMAN ACT CARRIES THE MORE
ONEROUS BURDEN OF PROOF OF AN ACTUAL RESTRAINT.  THE COMMISSION
COMPLAINT, HOWEVER, DID ALLEGE AN "ACTUAL" AS WELL AS A "POTENTIAL"
LESSENING OF COMPETITION, I.E., MANUFACTURERS "HAVE BEEN FORECLOSED
FROM A SUBSTANTIAL SHARE OF THE MARKETS."  MOREOVER, THE MONOPOLIZATION
COUNT WAS PHRASED IN TERMS OF AN "ATTEMPT TO MONOPOLIZE," WHICH MAY BE
ILLEGAL THOUGH NOT SUCCESSFUL.  SEE UNITED STATES V. COLUMBIA STEEL
CO., 334 U.S. 495, 525, 531-532 (1948). 

MINNESOTA MINING'S CLAIM SEEMS TO BE THAT THE CRUCIAL DIFFERENCE
BETWEEN THE COMMISSION AND THE NEW JERSEY WOOD PROCEEDINGS IS THAT THE
FORMER ALLEGES CONDUCT THAT MAY SUBSTANTIALLY LESSEN COMPETITION WHILE
THE LATTER ASSERTS ACTIVITY THAT HAS ACTUALLY DONE SO.  WE THINK THAT
THIS IS A DISTINCTION WITHOUT A DIFFERENCE AND DOES NOT DEPRIVE NEW
JERSEY WOOD OF THE TOLLING EFFECT OF SEC 5(B).  THAT CLAUSE PROVIDES
FOR TOLLING AS LONG AS THE PRIVATE CLAIM IS BASED "IN PART ON ANY
MATTER COMPLAINED OF" IN THE GOVERNMENT PROCEEDINGS.  THE FACT THAT NEW
JERSEY WOOD CLAIMS THAT THE SAME CONDUCT HAS A GREATER ANTICOMPETITIVE
EFFECT DOES NOT MAKE THE CONDUCT CHALLENGED ANY LESS A MATTER
COMPLAINED OF IN THE GOVERNMENT ACTION.  IT MERELY REQUIRES IT TO MEET
A GREATER BURDEN OF PROOF AS TO THE EFFECT OF THE CONSPIRACY BEFORE A
SHERMAN ACT CLAIM CAN BE SUSTAINED.  AFFIRMED. 

FN1  THE CASE WAS CONSIDERED ON INTERLOCUTORY APPEAL.  28 U.S.C. SEC
1292(B) (1958 ED.).  ESSEX DID NOT APPEAL AND IS NOT A PARTY HERE. 

FN2  DURING THE PENDENCY OF THE CASE IN THE DISTRICT COURT RESPONDENT
FILED AN AMENDED COMPLAINT.  HOWEVER, RESPONDENT'S THEORIES OF RECOVERY
AND THE CONTROLLING LEGAL QUESTIONS ARE COMMON TO BOTH PLEADINGS. 

FN3 38 STAT. 731, AS AMENDED, 15 U.S.C. SEC 18 (1964 ED.). 

FN4  26 STAT. 209, AS AMENDED, 15 U.S.C. SECS 1, 2 (1964 ED.). 

FN5  SECTION 4B OF THE CLAYTON ACT, 69 STAT. 283, 15 U.S.C. SEC 15B
(1964 ED.), PROVIDES THAT: 

"ANY ACTION TO ENFORCE ANY CAUSE OF ACTION UNDER SECTIONS 15 OR 15A
OF THIS TITLE SHALL BE FOREVER BARRED UNLESS COMMENCED WITHIN FOUR
YEARS AFTER THE CAUSE OF ACTION ACCRUED.  NO CAUSE OF ACTION BARRED
UNDER EXISTING LAW ON THE EFFECTIVE DATE OF THIS SECTION AND SECTIONS
15A AND 16 OF THIS TITLE SHALL BE REVIVED BY SAID SECTIONS." 

FN6  SECTION 5(B), 38 STAT. 731, AS AMENDED, 15 U.S.C. SEC 16(B)
(1964 ED.), PROVIDES: 

"(B)  WHENEVER ANY CIVIL OR CRIMINAL PROCEEDING IS INSTITUTED BY THE
UNITED STATES TO PREVENT, RESTRAIN, OR PUNISH VIOLATIONS OF ANY OF THE
ANTITRUST LAWS, BUT NOT INCLUDING AN ACTION UNDER SECTION 15A OF THIS
TITLE, THE RUNNING OF THE STATUTE OF LIMITATIONS IN RESPECT OF EVERY
PRIVATE RIGHT OF ACTION ARISING UNDER SAID LAWS AND BASED IN WHOLE OR
IN PART ON ANY MATTER COMPLAINED OF IN SAID PROCEEDING SHALL BE
SUSPENDED DURING THE PENDENCY THEREOF AND FOR ONE YEAR THEREAFTER:
PROVIDED, HOWEVER, THAT WHENEVER THE RUNNING OF THE STATUTE OF
LIMITATIONS IN RESPECT OF A CAUSE OF ACTION ARISING UNDER SECTION 15 OF
THIS TITLE IS SUSPENDED HEREUNDER, ANY ACTION TO ENFORCE SUCH CAUSE OF
ACTION SHALL BE FOREVER BARRED UNLESS COMMENCED EITHER WITHIN THE
PERIOD OF SUSPENSION OR WITHIN FOUR YEARS AFTER THE CAUSE OF ACTION
ACCRUED." 

FN7  SEE HIGHLAND SUPPLY CORP. V. REYNOLDS METALS CO., 327 F.2D 725
(C.A. 8TH CIR. 1964). 

FN8  SECTION 5(A), 38 STAT. 731, AS AMENDED, 15 U.S.C. SEC 16(A)
(1964 ED.), PROVIDES: 

"(A)  A FINAL JUDGMENT OR DECREE HERETOFORE OR HEREAFTER RENDERED IN
ANY CIVIL OR CRIMINAL PROCEEDING BROUGHT BY OR ON BEHALF OF THE UNITED
STATES UNDER THE ANTITRUST LAWS TO THE EFFECT THAT A DEFENDANT HAS
VIOLATED SAID LAWS SHALL BE PRIMA FACIE EVIDENCE AGAINST SUCH DEFENDANT
IN ANY ACTION OR PROCEEDING BROUGHT BY ANY OTHER PARTY AGAINST SUCH
DEFENDANT UNDER SAID LAWS OR BY THE UNITED STATES UNDER SECTION 15A OF
THIS TITLE, AS TO ALL MATTERS RESPECTING WHICH SAID JUDGMENT OR DECREE
WOULD BE AN ESTOPPEL AS BETWEEN THE PARTIES THERETO:  PROVIDED, THAT
THIS SECTION SHALL NOT APPLY TO CONSENT JUDGMENTS OR DECREES ENTERED
BEFORE ANY TESTIMONY HAS BEEN TAKEN OR TO JUDGMENTS OR DECREES ENTERED
IN ACTIONS UNDER SECTION 15A OF THIS TITLE." 

FN9  SEE THEATRE ENTERPRISES, INC. V. PARAMOUNT FILM DISTRIBUTING
CORP., 346 U.S. 537 (1954). 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART DID NOT PARTICIPATE IN THE
DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

UNLESS BROUGHT WITHIN FOUR YEARS AFTER THE CAUSE OF ACTION ARISES. 
(FN1)  SECTION 5(B) OF THE ACT, AS AMENDED, 15 U.S.C. SEC 16(B) (1964
ED.), HOWEVER, SUSPENDS THE RUNNING OF THIS LIMITATION PERIOD "WHENEVER
ANY CIVIL OR CRIMINAL PROCEEDING IS INSTITUTED BY THE UNITED STATES TO
PREVENT, RESTRAIN, OR PUNISH VIOLATIONS OF ANY OF THE ANTITRUST LAWS
...  ."  I AM UNABLE TO AGREE WITH THE COURT'S HOLDING THAT A PURELY
ADMINISTRATIVE PROCEEDING INITIATED BY THE FEDERAL TRADE COMMISSION AND
DECIDED BY THAT SAME REGULATORY AGENCY IS THE KIND OF "CIVIL OR
CRIMINAL PROCEEDING  ...  INSTITUTED BY THE UNITED STATES  ...  " WHICH
TOLLS THE STATUTE OF LIMITATIONS UNDER SEC 5(B).  THE COURT ITSELF
CONCEDES THAT EVEN AS AMENDED "THE PRECISE LANGUAGE OF SEC 5(B) DOES
NOT CLEARLY ENCOMPASS COMMISSION PROCEEDINGS" AND THAT "THERE IS LITTLE
IN THE LEGISLATIVE HISTORY TO SUGGEST THAT CONGRESS CONSCIOUSLY
INTENDED TO INCLUDE COMMISSION ACTIONS WITHIN THE SWEEP OF THE TOLLING
PROVISION."  AND THE SOLICITOR GENERAL, WHILE URING AS AMICUS CURIAE
THE RESULT THE COURT REACHES TODAY, CANDIDLY ADMITS THAT THIS "RESULT
IS DIFFICULT AND PERHAPS IMPOSSIBLE TO JUSTIFY IN TERMS OF CONVENTIONAL
ANALYSIS OF THE TEXT AND LEGISLATIVE HISTORY  ...  ."  IT IS BECAUSE I
THINK BOTH THE LANGUAGE OF THE STATUTE AND THE LEGISLATIVE HISTORY
PERSUASIVELY, IF NOT CONCLUSIVELY, SHOW THAT CONGRESS DID NOT INTEND
THE CONSTRUCTION THE COURT GIVES SEC 5(B) TODAY, THAT I AM UNABLE TO
AGREE WITH ITS DECISION. 

THE WHOLE OF SEC 5, NOW DIVIDED INTO SUBDIVISIONS (A) AND (B), WAS
PASSED IN RESPONSE TO PRESIDENT WILSON'S 1914 PLEA TO CONGRESS TO ENACT
A LAW DESIGNED TO MAKE IT EASIER FOR ANTITRUST VICTIMS TO COLLECT
DAMAGES THROUGH PRIVATE LAWSUITS SINCE PREPARING AN ANTITRUST CASE
AGAINST A MAJOR CORPORATE DEFENDANT WAS A LARGER TASK THAN MOST INJURED
PERSONS COULD UNDERTAKE.  TO ACCOMPLISH THAT SINGLE PURPOSE HE
RECOMMENDED TO CONGRESS, AS THE COURT NOTES, TWO THINGS - THAT THESE
VICTIMS BE PERMITTED TO SEEK "REDRESS UPON THE FACTS AND JUDGMENTS
PROVED AND ENTERED IN SUITS BY THE GOVERNMENT" AND ALSO THAT "THE
STATUTE OF LIMITATIONS  ...  BE SUFFERED TO RUN AGAINST SUCH LITIGANTS
ONLY FROM THE DATE OF THE CONCLUSION OF THE GOVERNMENT'S ACTION."  51
CONG. REC. 1964.  CONGRESS ACCEPTED THE PRESIDENT'S RECOMMENDATION AND
PASSED SEC 5, A SINGLE SECTION IN TWO PARAGRAPHS, MAKING "A FINAL
JUDGMENT OR DECREE  ...  RENDERED IN ANY CRIMINAL PROSECUTION OR IN ANY
SUIT OR PROCEEDING IN EQUITY BROUGHT BY OR ON BEHALF OF THE UNITED
STATES  ...  PRIMA FACIE EVIDENCE" AGAINST A CIVIL ANTITRUST DEFENDANT
AND TOLLING THE STATUTE OF LIMITATIONS DURING THE PENDENCY OF "ANY SUIT
OR PROCEEDING IN EQUITY OR CRIMINAL PROSECUTION  ...  INSTITUTED BY THE
UNITED STATES  ...  ."  THIS LANGUAGE OF SEC 5 AS IT PASSED THE
CONGRESS IN 1914 CLEARLY DID NOT REFER TO ADMINISTRATIVE PROCEEDINGS
BUT TO ANTITRUST SUITS OR CRIMINAL PROSECUTIONS INSTITUTED BY THE
GOVERNMENT IN CIVIL OR CRIMINAL COURTS.  MOREOVER, THE PURPOSE AND
EFFECT OF THE TWO PARTS OF THIS PROVISION WERE OBVIOUSLY COMPLEMENTARY,
PERMITTING THE INJURED PARTY TO UTILIZE A FINAL JUDGMENT OBTAINED BY
THE GOVERNMENT AND ALSO PROVIDING A MEANS WHEREBY THE INJURED PARTY
COULD AWAIT THE RESULT OF THE GOVERNMENT ACTION CONFIDENT THAT HIS SUIT
WOULD NOT BE BARRED BY THE STATUTE OF LIMITATIONS.  IN THE WORDS OF ONE
OF THE COMMITTEE REPORTS, THE "ENTIRE PROVISION IS INTENDED TO HELP
PERSONS OF SMALL MEANS WHO ARE INJURED IN THEIR PROPERTY OR BUSINESS BY
COMBINATIONS OR CORPORATIONS VIOLATING THE ANTITRUST LAWS."   H.R. REP.
NO. 627, 63D CONG., 2D SESS., 14.  SEE S. REP.  NO. 698, 63D CONG., 2D
SESS., 45.  THEREFORE, BOTH THE LANGUAGE AND THE COMPLEMENTARY NATURE
OF THE TWO PARAGRAPHS OF SEC 5 OUGHT TO SHOW BEYOND ANY DOUBT THAT THE
WHOLE SECTION AS PASSED WAS INTENDED TO APPLY TO THE SAME KIND OF
PROCEEDING IN THE SAME KIND OF TRIBUNAL - THAT IS A PROCEEDING BROUGHT
IN A CIVIL OR CRIMINAL COURT, THE ONLY TRIBUNAL WHICH IN COMMON
UNDERSTANDING HAS POWER TO RENDER THE KIND OF "FINAL JUDGMENT OR
DECREE" MENTIONED IN SEC 5(A).  (FN2)  FURTHERMORE, SINCE THE TWO
PARAGRAPHS OF SEC 5 WHEN OFFERED AND WHEN PASSED WERE REGARDED AS AN
ENTITY BECAUSE OF THEIR IDENTICAL LANGUAGE AND PURPOSE, IT IS NOT
SURPRISING THAT THE SENATORS AND CONGRESSMEN ADDRESSING THEMSELVES TO
SEC 5 DID NOT SPECIFICALLY DIRECT THEIR REMARKS TO THE TOLLING
PROVISION AS DISTINCT FROM THE EFFECT TO BE GIVEN A COURT JUDGMENT OR
DECREE.  THOSE DISCUSSING THE MEASURE NATURALLY TREATED THE "SUIT OR
PROCEEDING IN EQUITY" OR "CRIMINAL PROSECUTION" SET OUT IN BOTH
PARAGRAPHS IN IDENTICAL TERMS AS REFERRING TO THE SAME KIND OF
PROCEEDING IN THE SAME KIND OF TRIBUNAL, NAMELY A COURT.  IT IS TRUE
THAT THE LANGUAGE WAS CHANGED IN 1955 FROM "SUIT OR PROCEEDING IN
EQUITY" AND "CRIMINAL PROSECUTION" TO "CIVIL OR CRIMINAL PROCEEDING,"
THE PRESENT LANGUAGE, BUT THE LEGISLATIVE HISTORY OF THE 1955 AMENDMENT
AFFIRMATIVELY SHOWS THAT THERE WAS NO INTENTION TO AFFECT IN ANY WAY
THE KIND OF COURT PROCEEDINGS NECESSARY TO SUSPEND THE STATUTE OF
LIMITATIONS.  THUS, I AM UNABLE TO GO ALONG WITH THE COURT IN
CONSTRUING THE TOLLING PROVISION OF SEC 5(B) AS THOUGH IT APPLIES TO
BOTH COURT AND TRADE COMMISSION PROCEEDINGS WHILE TREATING SEC 5(A) AS
THOUGH IT MAY APPLY TO COURT PROCEEDINGS ONLY.  SUCH A HOLDING WOULD,
IN MY JUDGMENT, RUN COUNTER TO THE WHOLE LEGISLATIVE HISTORY OF THE
1914 ACT. 

I AM SETTING OUT AS AN APPENDIX SOME OF THE LEGISLATIVE HISTORY OF
THE ORIGINAL ACT AND OF THE 1955 AMENDMENT, WHICH POINTS OUT
SPECIFICALLY SOMETHING WHICH DOES NOT SURPRISE ME AT ALL:  THAT WHILE
CONGRESS WAS READY TO MAKE THE FINAL JUDGMENT OF A COURT PRIMA FACIE
EVIDENCE AGAINST A DEFENDANT, IT WAS AT THE SAME TIME ENTIRELY
UNWILLING TO GIVE SUCH EFFECT TO ADMINISTRATIVE HEARINGS AND ORDERS AND
WAS ALSO UNWILLING TO TOLL THE STATUTE OF LIMITATIONS DURING THE
PENDENCY OF SUCH PROCEEDINGS.  IT IS TRUE THAT MANY ADMINISTRATIVE
AGENCIES NOW CONDUCT HEARINGS, MAKE FINDINGS, AND ISSUE ORDERS IN A WAY
MORE OR LESS COMPARABLE TO COURTS.  I DOUBT, HOWEVER, THAT THE TIME HAS
EVEN YET COME WHEN CONGRESS WOULD BE WILLING TO COMPEL JUDGES AND
JURIES TO TREAT ADMINISTRATIVE ORDERS AS PRIMA FACIE PROOF OF A
VIOLATION OF LAW, EITHER CIVIL OR CRIMINAL, OR TO TREAT THOSE
PROCEEDINGS AS THOUGH THEY WERE CONDUCTED IN A COURT OF LAW WITH ALL
THE PROTECTIONS THERE AFFORDED LITIGANTS. 

I WOULD REVERSE THIS JUDGMENT. 

FN1  SECTION 4B OF THE CLAYTON ACT, 69 STAT. 283, 15 U.S.C. SEC. 15B
(1964 ED.), PROVIDES THAT: 

"ANY ACTION TO ENFORCE ANY CAUSE OF ACTION UNDER SECTIONS 15 OR 15A
OF THIS TITLE SHALL BE FOREVER BARRED UNLESS COMMENCED WITHIN FOUR
YEARS AFTER THE CAUSE OF ACTION ACCRUED." 

FN2  AND OF COURSE, IT IS NOT AT ALL CLEAR THAT THIS IS A SUIT
"INSTITUTED BY THE UNITED STATES."  THE DEPARTMENT OF JUSTICE BRINGS
SUITS AND CRIMINAL PROSECUTIONS IN THE NAME OF THE UNITED STATES, WHILE
AN INDEPENDENT REGULATORY AGENCY SUES AND IS SUED IN ITS OWN NAME.  AND
THE UNITED STATES DOES NOT INITIATE THE PROCEEDINGS BEFORE AN
ADMINISTRATIVE AGENCY.  HERE FOR EXAMPLE THE FEDERAL TRADE COMMISSION
FILED THE PROCEEDING AGAINST PETITIONER.  HOWEVER, BECAUSE OF THE VIEW
I TAKE OF THE OTHER LANGUAGE IN THE SECTION, I FIND IT UNNECESSARY TO
DECIDE THIS QUESTION. 

                APPENDIX TO OPINION OF MR. JUSTICE

                        BLACK, DISSENTING. 

                    THE 1914 ACT. 

HEREWITH FOR ILLUSTRATION ARE STATEMENTS MADE ABOUT SEC 5 OF THE 1914
CLAYTON ACT BY SENATORS AND CONGRESSMEN PARTICULARLY INTERESTED IN SEC
5, ALL OF WHOM TOOK PART IN THE PREPARATION AND SPONSORSHIP OF THE 1914
BILL OR THE DISCUSSIONS THAT TOOK PLACE AS IT WENT THROUGH THE HOUSE
AND SENATE. 

SENATOR WALSH, THE SPOKESMAN FOR THE JUDICIARY COMMITTEE, LED THE
FIGHT FOR THE HOUSE VERSION OF SEC 5 AND DEFENDED IT ON THE GROUND THAT
THE DEFENDANT "HAS HAD AN OPPORTUNITY TO TRY OUT BEFORE A COURT, WITH
ALL THE FORMS OF THE LAW, EVERY QUESTION INVOLVED IN THE LAWSUIT  ...
."  51 CONG. REC. 13851.  AND SENATOR WALSH LATER ADDED THAT "HERE THE
PARTY HAS HAD HIS DAY IN COURT.  HE HAS TRIED EVERY ISSUE, AND IT IS
SIMPLY A QUESTION, NOW THAT HE HAS HAD IT TRIED, WHETHER HE MAY INSIST
UPON A SECOND TRIAL."  51 CONG. REC. 13857.  OPPONENTS OF THE
"CONCLUSIVE EVIDENCE" PROPOSAL OF THE HOUSE BILL NEVER CHALLENGED THE
PREMISE, IMPLICIT IN THE REMARKS OF SENATOR WALSH AND OTHERS, THAT ONLY
JUDGMENTS RENDERED IN JUDICIAL PROCEEDINGS WERE CONTEMPLATED BY SEC 5. 
NOT ONCE DID ANY MEMBER OF CONGRESS SUGGEST THAT UNDER THE HOUSE
VERSION, ADMINISTRATIVE FINDINGS BASED UPON EVIDENCE WHICH WOULD NOT BE
ADMISSIBLE IN A COURT SHOULD BE CONCLUSIVE OF THE DEFENDANT'S LIABILITY
IN A LATER TREBLE-DAMAGE ACTION. 

SENATOR WALSH, IN ARGUING THAT HIS PROPOSAL WOULD NOT VIOLATE THE
CONSTITUTION, AGAIN EMPHASIZED THAT SEC. 5 DID NOT APPLY TO
ADMINISTRATIVE ORDERS, BUT ONLY TO JUDGMENTS OR DECREES OF THE COURTS: 

"I WANT TO SAY JUST A WORD WITH REFERENCE TO THE AUTHORITIES TO WHICH
THE ATTENTION OF THE SENATE HAS BEEN INVITED  ...  .  NOBODY QUESTIONS
THEM.  THEY ALL LAY DOWN THE RULE THAT IN AN ACTION BROUGHT AGAINST AN
INDIVIDUAL WHO HAS NEVER THERETOFORE HAD HIS DAY IN COURT YOU CAN NOT
MAKE A CERTIFICATE OR A RECITAL OR AN ORDER OF AN ADMINISTRATIVE BOARD
OR ANYTHING OF THAT KIND CONCLUSIVE EVIDENCE AGAINST HIM."  51 CONG.
REC. 13856-13857. 

ON THE OTHER HAND, THERE WERE SENATORS WHO THOUGHT A JUDGMENT OR
DECREE FOR A DEFENDANT SHOULD BE EQUALLY BINDING ON A TREBLE-DAMAGE
PLAINTIFF.  IN OPPOSING THIS IDEA, SENATOR WHITE ARGUED: 

"THEN, MR. PRESIDENT, AS HAS BEEN SAID, IT IS BURDENSOME ENOUGH TO
REQUIRE PARTIES TO THE LITIGATION THEMSELVES TO BE BOUND BY THE
FINDINGS OF A COURT OR JURY IN A PARTICULAR CASE.  SO MANY THINGS THAT
WE CAN NOT AT THE TIME POSSIBLY FORESEE INFLUENCE SUCH DECISIONS.  THE
WAY IN WHICH THE EVIDENCE IS PRODUCED MAY HAVE ITS EFFECT UPON A JURY
OR A COURT. 

"THE MANNER IN WHICH THE CASE IS HANDLED BY THE LAWYERS EMPLOYED MAY
DETERMINE IN THE MIND OF A JURY OR A COURT WHAT THE VERDICT OR THE
JUDGMENT SHALL BE, AND YET, MR. PRESIDENT, THOSE THINGS SHOULD PROBABLY
NOT HAVE BEEN CONTROLLING INFLUENCES IN THE CONCLUSIONS REACHED."  51
CONG. REC. 13900. 

AND SENATOR CUMMINS SAID:  "BUT WHEN THE SUIT IS BROUGHT, THEN THE
JUDGMENT OR DECREE OF THE COURT IN THE SUIT THAT HAS BEEN BROUGHT BY
THE GOVERNMENT WOULD BE PRIMA FACIE EVIDENCE OF VIOLATION OF THE
ANTITRUST LAW  ...  ."  51 CONG. REC. 13850. 

WHEN THE BILL LEFT THE CONFERENCE COMMITTEE AND WENT BACK TO THE
HOUSE, THE MANAGERS WERE CALLED ON TO DEFEND THE CHANGES AGAINST
CHARGES THAT ELIMINATION OF THE CRIMINAL PENALTIES HAD EMASCULATED THE
BILL.  CHAIRMAN WEBB OF THE HOUSE JUDICIARY COMMITTEE ATTEMPTED TO
DESCRIBE THE PROPOSED ENFORCEMENT PROCEDURES IN THE STRONGEST POSSIBLE
LIGHT.  AFTER READING THE PROVISION VESTING ENFORCEMENT RESPONSIBILITY
IN THE TRADE COMMISSION, HE STATED: 

"NOW, THE VALUE OF THESE TWO SECTIONS IS THIS:  THAT THEY NOT ONLY
GIVE THE INDIVIDUAL THE RIGHT TO SUE FOR TREBLE DAMAGES WHERE HE
PLEASES, AND WE NOT ONLY SUSPEND THE STATUTE OF LIMITATIONS AGAINST AN
INDIVIDUAL IF A GOVERNMENT SUIT IS BROUGHT AGAINST A TRUST, BUT WE ALSO
REQUIRE THE FEDERAL TRADE COMMISSION TO STOP THESE PRACTICES AND TAKE
THOSE GUILTY OF SUCH PRACTICES INTO COURT. 

"BUT THAT IS NOT ALL.  SOME ARGUE THAT AFTER THE TRADE COMMISSION
TAKES JURISDICTION THAT EXCLUDES INDIVIDUALS FROM PURSUING THESE OTHER
REMEDIES.  THE BILL FURTHER PROVIDES: 

"'NO ORDER OF THE COMMISSION OR BOARD OR THE JUDGMENT OF THE COURT TO
ENFORCE THE SAME SHALL IN ANY WISE RELIEVE OR ABSOLVE ANY PERSON FROM
ANY LIABILITY UNDER THE ANTITRUST ACTS.' 

"SO YOU HAVE THREE OR FOUR DISTINCT REMEDIES, ALL OF WHICH MAY BE
INVOKED AT THE SAME TIME."  51 CONG. REC. 16274. 

IT IS CLEAR THEREFORE THAT CHAIRMAN WEBB DISTINGUISHED BETWEEN SUITS
BY THE "GOVERNMENT" - THE SUITS TO WHICH THE TOLLING PROVISION APPLIED
AND PROCEEDINGS OF THE FEDERAL TRADE COMMISSION.  HE BELIEVED THAT THE
STATUTE WAS SUSPENDED ONLY WHEN ACTIONS WERE BROUGHT UNDER THE
DIRECTION OF THE ATTORNEY GENERAL.  THIS WAS CONFIRMED A FEW MOMENTS
LATER BY THE FOLLOWING EXCHANGE: 

"MR. HARDY.  UNDER THE BILL DOES THE GOVERNMENT HAVE THE AUTHORITY TO
BRING SUIT FOR INJUNCTION AS WELL AS PRIVATE PARTIES? 

"MR. WEBB.  YES.  SECTION 15 GIVES THE DISTRICT ATTORNEYS UNDER THE
DIRECTION OF THE ATTORNEY GENERAL THE RIGHT TO APPLY FOR AN
INJUNCTION."  51 CONG. REC. 16276. 

THE DAY FOLLOWING CHAIRMAN WEBB'S REMARKS REPRESENTATIVE FLOYD,
ANOTHER OF THE HOUSE MANAGERS, AGAIN ATTEMPTED TO PERSUADE THE HOUSE
THAT THE ENFORCEMENT SCHEME CONTEMPLATED BY THE BILL WAS STRONG: 

"THAT IS NOT ALL.  UNDER SECTION 5 OF THE BILL ANY PRIVATE LITIGANT
INJURED BY THE UNLAWFUL ACTS OF ANY CORPORATION WHERE THE GOVERNMENT OF
THE UNITED STATES HAS PROCEEDED AGAINST SUCH CORPORATION AND OBTAINED A
JUDGMENT, EITHER IN A COURT OF LAW OR EQUITY, IS ALLOWED THE USE OF
THAT JUDGMENT OR DECREE TO SHOW THE UNLAWFUL ACTS OF THE COMBINATION TO
THE FULL EXTENT THAT IT WOULD BE AN ESTOPPEL BETWEEN THE GOVERNMENT AND
THE ORIGINAL OFFENDER  ...  .  THAT IS A NEW REMEDY AND A MOST
EFFICIENT REMEDY.  THE GOVERNMENT OF THE UNITED STATES, ACTING IN
BEHALF OF ALL OF ITS CITIZENS, PROSECUTES A TRUST, CONVICTS IT EITHER
IN A CRIMINAL COURT OR A CIVIL COURT, AND THE PRIVATE LITIGANT, INJURED
BY THE UNLAWFUL ACTS OF SUCH TRUST, HAS NOTHING TO DO IN ORDER TO
RECOVER THE THREE-FOLD DAMAGES EXCEPT TO PROVE THE AMOUNT OF DAMAGES
AND THAT THE INJURY WAS DONE BY THIS TRUST OR CORPORATION  ...  . 

     *         *         *    *         * 

"BUT THAT IS NOT ALL.  THERE ARE SEVERAL OTHER REMEDIES PROVIDED IN
THIS BILL.  UNDER SECTION 11 THE VIOLATION OF SECTIONS 2, 3, 7, AND 8
MAY BE ENFORCED, RESPECTIVELY, BY THE TRADE COMMISSION, BY THE
INTERSTATE COMMERCE COMMISSION, OR BY THE FEDERAL RESERVE BOARD."  51
CONG. REC. 16319. 

ANOTHER RELEVANT DISCUSSION IN THE HOUSE IS THE FOLLOWING: 

"MR. MCKENZIE:  IF THIS SECTION IS LEFT IN THE BILL, DO YOU NOT FEEL
AND BELIEVE THAT THIS DECREE THAT IS MENTIONED IN THIS SECTION SHOULD
BE THE DECREE OF THE COURT OF LAST RESORT - THE SUPREME COURT OF THE
LAND? 

"MR. VOLSTEAD.  NO. 

     *     *         *         *         * 

"MR. MCKENZIE.  YOU THINK IT WOULD BE GOOD POLICY TO LEAVE A MATTER
OF SUCH GREAT IMPORTANCE IN THE HANDS OF AN INFERIOR COURT? 

"MR. VOLSTEAD.  YES."  51 CONG. REC. 9079. 

AS ORIGINALLY PRESENTED TO THE HOUSE, SEC 5 ALSO MADE A "JUDGMENT OR
DECREE" RENDERED IN A "SUIT OR PROCEEDING IN EQUITY BROUGHT BY OR ON
BEHALF OF THE UNITED STATES" CONCLUSIVE AGAINST ANY PROSPECTIVE TREBLE
DAMAGE PLAINTIFF.  OPPONENTS OF THIS CLAUSE VIGOROUSLY CHALLENGED THE
CONSTITUTIONALITY OF BINDING A PARTY WHO HAD NEVER HAD HIS "DAY IN
COURT."  THE DEBATES MADE IT CLEAR TIME AND AGAIN THAT THE PROCEEDING
CONTEMPLATED WAS AN ACTION BROUGHT FOR THE UNITED STATES BY THE
ATTORNEY GENERAL, NOT AN ADMINISTRATIVE PROCEEDING: 

"MR. SISSON.  ...  DOES THE GENTLEMAN BELIEVE THAT HIS RIGHTS IN THE
COURT SHOULD BE DETERMINED UPON THE QUESTIONS RAISED BY THE ATTORNEY
GENERAL OF THE UNITED STATES? 

"MR. PROUTY.  WHY, CERTAINLY NOT; THE CONSTITUTION EXPRESSLY
PROHIBITS IT.  IN OTHER WORDS, THE ATTORNEY GENERAL COULD GO IN AND
PREVENT MY HAVING A TRIAL BEFORE A JURY. 

"MR. SISSON.  THAT IS THE POINT I HAD IN MIND. 

"MR. PROUTY.  BY INSTITUTING A PROCEEDING IN EQUITY AND HAVING THE
CASE TRIED. 

"MR. SISSON.  THAT IS THE POINT I HAD IN MIND, THAT THE ATTORNEY
GENERAL, IF HE WAS DISPOSED TO DO SO - WE WOULD NOT CHARGE THAT OF ANY
PARTICULAR ATTORNEY GENERAL - MIGHT COOK UP A CASE WHICH WOULD DIRECTLY
DEFEAT THE RIGHTS OF EVERY INDIVIDUAL IF HE HAD BEEN INJURED."  51
CONG. REC. 9492. 

DEFENDERS OF THE PROPOSITION, ON THE OTHER HAND, STATED: 

"MR. CULLOP.  MY QUESTION IS THIS:  SUPPOSING A COLLUSIVE SUIT WAS
BROUGHT AND THE DEFENDANT WON ON THE ISSUE, THEN IS EVERY OUTSIDER
BARRED FROM ANY FURTHER SUIT?  ACCORDING TO THIS LANGUAGE HE IS. 

"MR. FLOYD OF ARKANSAS  ...  . 

"  ...  MY ANSWER TO THAT PROPOSITION IS THAT IF THE TIME EVER COMES
IN THIS GOVERNMENT WHEN ANY ATTORNEY GENERAL WILL ENTER INTO COLLUSIVE
SUITS WITH CORPORATIONS AND COMBINATIONS ENGAGED IN UNLAWFUL ACTS, IT
WILL BE AN EVIL DAY FOR OUR REPUBLIC, A DAY WHEN EVERY STATUTE WILL
BECOME USELESS AND JUSTICE WILL BECOME A MOCKERY."  51 CONG. REC.
9489. 

FURTHERMORE, AN AMENDMENT WAS IN FACT OFFERED TO THE SENATE WHICH
ARGUABLY WOULD HAVE RESULTED IN BRINGING ADMINISTRATIVE PROCEEDINGS
WITHIN THE SCOPE OF THE PHRASE "SUIT OR PROCEEDING."  THE AMENDMENT MET
WITH OPPOSITION AND WAS WITHDRAWN.  THE HOUSE BILL ORIGINALLY DEALT
ONLY WITH A "SUIT OR PROCEEDING IN EQUITY," AND DID NOT APPLY TO
CRIMINAL PROCEEDINGS.  AFTER THE BILL REACHED THE SENATE, SENATOR BRYAN
MOVED TO STRIKE OUT THE WORDS "IN EQUITY," SO THE PROVISION WOULD READ
SIMPLY "ANY SUIT OR PROCEEDING."  AS OBSERVED BY SENATOR REED, "THAT
WOULD COVER ANY KIND OF PROCEEDING."  SENATOR CULBERSON PROPOSED A
SUBSTITUTE ADDING THE PHRASE "CRIMINAL PROSECUTION OR," AND RETAINING
THE PHRASE "IN EQUITY."  SENATOR BRYAN WITHDREW HIS BROADER PROPOSAL
AND ACCEPTED SENATOR CULBERSON'S LIMITED SUBSTITUTE.  51 CONG. REC.
13897-13898. 

THE HOUSE INITIALLY PASSED THE ACT WITH FOUR SUBSTANTIVE SECTIONS,
EACH HAVING A CRIMINAL PENALTY ATTACHED.  ALL OF THE CRIMINAL PENALTIES
WERE REMOVED IN THE SENATE OR IN CONFERENCE.  SENATOR REED OF MISSOURI,
LEADING THE OPPOSITION TO THE BILL, CHARGED REPEATEDLY THAT THE CLAYTON
ACT HAD BEEN STRIPPED OF ALL FORCE AND EFFECTIVENESS: 

"WE END BY PROVIDING A SMOOTH AND EASY ROAD WHICH MAY BE TRAVELED
THROUGH THE YEARS, UNTIL FINALLY A COMMISSION SHALL ISSUE AN INNOCUOUS,
NONENFORCIBLE DECREE, A DECREE THAT CAN BE VITALIZED ONLY BY BEING
AFFIRMED BY A COURT.  AT THE CONCLUSION OF ALL THE LITIGATION WE
PROPOSE TO IMPOSE NO PENALTY, LEVY NO FINE, SEND NO ONE TO JAIL, AND WE
PERMIT THE CULPRIT TO PRESERVE HIS SWAG]"  51 CONG. REC. 15867. 

HAD THE PROPONENTS OF THE MEASURE CONTEMPLATED THE USE OF
ADMINISTRATIVE FINDINGS AS EVIDENCE IT APPEARS THAT THE OBVIOUS ANSWER
TO SENATOR REED WOULD HAVE BEEN THAT THE BILL DOES HAVE TEETH FOR THE
COMMISSION'S ORDER WOULD BE ADMISSIBLE AS PRIMA FACIE EVIDENCE AGAINST
THE "CULPRIT," AND PRIVATE CLAIMANTS WOULD BE ABLE TO RECLAIM "HIS
SWAG," THREE TIMES OVER.  NEITHER THIS, NOR ANY OTHER ANSWER
CHALLENGING THE ACCURACY OF SENATOR REED'S STATEMENT, WAS HEARD ON THE
SENATE FLOOR, ALTHOUGH HIS COMPLAINT WAS REPEATEDLY MADE.  AND IN THE
HOUSE, REPRESENTATIVE NELSON CHARGED:    "FINALLY, THE PENALTY IS CUT
OUT; THEY CAN DO ALL THESE THINGS, AND THE TRADE COMMISSION CAN ONLY
SAY, 'YOU MUST NOT DO IT ANY MORE.'  THEN THERE IS THE LONG DELAY IN AN
APPEAL TO THE COURTS; AND THEY GO THROUGH THE COURTS.  AND THEN WHAT? 
THERE MAY BE AN INJUNCTION ISSUED, BUT THEY HAVE GOT AWAY WITH THE LOOT
WITH IMPUNITY."  51 CONG. REC. 16325.    FOR FURTHER EXAMPLES SEE 51
CONG. REC. 9079, 9169, 9488-9490, 9492, 9494-9495, 12789-12790, 13850
13851, 13856-13857, 13897-13898, 13900, 14262, 14328, 15867, 15948,
15950, 16003, 16044, 16046, 16149, 16154, 16274, 16281, 16319, 16325. 

                               THE 1955 AMENDMENT. 

THE COMMITTEE REPORTS ON THE AMENDMENT DETAILED CAREFULLY EVERY
CHANGE THE BILL WOULD MAKE, BUT THERE IS ABSOLUTELY NO EVIDENCE THAT
THERE WAS ANY INTENT TO AMEND SEC 5(B) FOR THE PURPOSE OF SUSPENDING
THE STATUTE OF LIMITATIONS DURING THE PENDENCY OF FEDERAL TRADE
COMMISSION HEARINGS.  SEE H.R. REP. NO. 422, 84TH CONG., 1ST SESS.; S.
REP. NO. 619, 84TH CONG., 1ST SESS.  AND THE DEBATES AND THE HEARINGS
AFFIRMATIVELY SHOW THAT NO CHANGE WAS INTENDED.  FOR EXAMPLE, IN THE
1951 HEARINGS REPRESENTATIVE PATMAN APPEARED BEFORE THE HOUSE
SUBCOMMITTEE CONSIDERING THE BILL AND QUESTIONED WHETHER SEC 5 HAD BEEN
CHANGED TO DENY THE RIGHT OF A PRIVATE LITIGANT TO USE A JUDGMENT
OBTAINED BY THE GOVERNMENT.  REPRESENTATIVE WILSON ASSURED HIM THAT:
"THIS DOESN'T CHANGE THE PRESENT LAW."  REPRESENTATIVE KEATING, THE
AUTHOR OF THE BILL, THEN COMMENTED:  "I THINK THERE IS A SLIGHT CHANGE
IN EXISTING LAW WHERE IT REFERS TO THE SUBSEQUENT NUMBERS.  THERE HAS
TO BE A CHANGE IN PHRASEOLOGY IN THAT BECAUSE OF WHAT WE HAVE DONE IN
BEFORE THE SUBCOMMITTEE ON STUDY OF MONOPOLY POWER OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 82D CONG., 1ST SESS., PART 3, 98-100.  AND
ON THE FLOOR OF THE HOUSE IN THE DISCUSSION OF THE BILL WHICH BECAME
THE PRESENT LAW, REPRESENTATIVE QUIGLEY STATED: 

"IT WAS THE SPECIFIC PURPOSE OF THE COMMITTEE IN REPORTING THIS BILL
TO IN NO WAY AFFECT THE SUBSTANTIVE RIGHTS OF INDIVIDUAL LITIGANTS.  IT
IS SIMPLY A PROCEDURAL CHANGE AND SUGGESTED WITH THE THOUGHT OF SETTING
UP A UNIFORM STATUTE OF LIMITATIONS.  THAT IS THE SOLE PURPOSE."  101
CONG. REC. 5131. 

MR. JUSTICE GOLDBERG, DISSENTING. 

WITH ALL DEFERENCE, I DISSENT.  I AGREE WITH THE COURT, ANTE, AT 321,
THAT, AS WE RECENTLY STATED IN BURNETT V. NEW YORK CENTRAL R. CO., 380
U.S. 424, 427, THE PIVOTAL QUESTION FOR DETERMINATION IS "WHETHER
CONGRESSIONAL PURPOSE IS EFFECTUATED BY TOLLING THE STATUTE OF
LIMITATIONS IN GIVEN CIRCUMSTANCES."  I CANNOT AGREE, HOWEVER, THAT THE
COURT HAS CORRECTLY APPLIED THAT TEST IN THIS CASE.  AS MY BROTHER
BLACK HAS SO WELL DEMONSTRATED IN HIS DISSENTING OPINION, BOTH THE
LANGUAGE AND LEGISLATIVE HISTORY OF THE STATUTES BEFORE US CLEARLY SHOW
THAT CONGRESS DID NOT INTEND THAT THE STATUTE OF LIMITATIONS APPLICABLE
TO PRIVATE ANTITRUST ACTIONS BE TOLLED BY THE INSTITUTION OF A FEDERAL
TRADE COMMISSION ADMINISTRATIVE PROCEEDING.  CF. UNITED STATES V.
WELDEN, 377 U.S. 95.  IT FRUSTRATES RATHER THAN EFFECTUATES
CONGRESSIONAL PURPOSE TO FAIL TO HONOR THE EXPRESS INTENT OF CONGRESS
IN THIS GIVEN CIRCUMSTANCE. 
..END :




CASE V. NEBRASKA 381 U.S. 336 


NO. 843.  ARGUED APRIL 28, 1965.  - DECIDED MAY 24, 1965.  - 177 NEB.
404, 129 N.W.2D 107, VACATED AND REMANDED. 


PETITIONER FILED A HABEAS CORPUS PETITION IN A NEBRASKA STATE COURT
CLAIMING UNCONSTITUTIONAL DENIAL OF THE RIGHT TO COUNSEL WHEN HE
PLEADED GUILTY TO A BURGLARY CHARGE.  THE STATE SUPREME COURT AFFIRMED
THE TRIAL COURT'S DISMISSAL OF THE PETITION ON THE GROUND THAT HABEAS
CORPUS WAS UNAVAILABLE IN NEBRASKA TO RELEASE A PRISONER IF THE
SENTENCING COURT HAD REQUISITE JURISDICTION AND THE SENTENCE WAS WITHIN
ITS POWER.  AFTER THIS COURT GRANTED CERTIORARI NEBRASKA ENACTED A
POSTCONVICTION PROCEDURE STATUTE APPARENTLY PROVIDING A HEARING FOR
PETITIONS SUCH AS PETITIONER'S. HELD:  THE JUDGMENT IS VACATED AND THE
CAUSE REMANDED TO THE NEBRASKA SUPREME COURT FOR RECONSIDERATION IN
LIGHT OF THE SUPERVENING STATUTE. 

CASE V. NEBRASKA. 

CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

PER CURIAM. 

PETITIONER SOUGHT A WRIT OF HABEAS CORPUS IN THE DISTRICT COURT FOR
LANCASTER COUNTY, NEBRASKA, ALLEGING THAT HE WAS UNCONSTITUTIONALLY
DENIED THE ASSISTANCE OF COUNSEL WHEN HE ENTERED A PLEA OF GUILTY IN
THAT COURT TO A CHARGE OF BURGLARY.  THE TRIAL COURT DISMISSED THE
PETITION WITHOUT A HEARING, AND FILED NO OPINION.  THE NEBRASKA SUPREME
COURT AFFIRMED.  177 NEB. 404, 129 N.W.2D 107.  THE SUPREME COURT'S
OPINION RECOGNIZED THAT PETITIONER'S ALLEGATIONS, IF TRUE, WOULD
ESTABLISH A VIOLATION OF THE FEDERAL CONSTITUTION.  177 NEB., AT 410,
129 N.W.2D, AT 111.  THE SUPREME COURT HELD, HOWEVER, THAT, IN
NEBRASKA, "HABEAS CORPUS IS NOT AVAILABLE TO DISCHARGE A PRISONER FROM
A SENTENCE OF PENAL SERVITUDE OF THE COURT IMPOSING IT HAD JURISDICTION
OF THE OFFENSE AND OF THE PERSON CHARGED WITH THE CRIME, AND THE
SENTENCE WAS WITHIN THE POWER OF THE COURT."  177 NEB., AT 412, 129
N.W.2D, AT 112.  WE GRANTED CERTIORARI, 379 U.S. 958, TO DECIDE WHETHER
THE FOURTEENTH AMENDMENT REQUIRES THAT THE STATES AFFORD STATE
PRISONERS SOME ADEQUATE CORRECTIVE PROCESS FOR THE HEARING AND
DETERMINATION OF CLAIMS OF VIOLATION OF FEDERAL CONSTITUTIONAL
GUARANTEES. 

AFTER CERTIORARI WAS GRANTED, THE NEBRASKA LEGISLATURE ENACTED A
STATUTE PROVIDING A POSTCONVICTION PROCEDURE.  NEB. LEG.  BILL 836,
SEVENTY-FIFTH SESSION, EFFECTIVE APRIL 12, 1965.  ON ITS FACE, THE
STATUTE PROVIDES FOR A HEARING OF PETITIONS SUCH AS THIS ONE, ALLEGING
DENIAL OF FEDERAL CONSTITUTIONAL RIGHTS.  THEREFORE, THE JUDGMENT IS
VACATED AND THE CAUSE REMANDED TO THE NEBRASKA SUPREME COURT FOR
RECONSIDERATION IN LIGHT OF THE SUPERVENING STATUTE.  IT IS SO
ORDERED. 

MR. JUSTICE CLARK, CONCURRING. 

AS THE COURT POINTS OUT, WE GRANTED CERTIORARI IN THIS CASE "TO
DECIDE WHETHER THE FOURTEENTH AMENDMENT REQUIRES THAT THE STATES AFFORD
STATE PRISONERS SOME ADEQUATE CORRECTIVE PROCESS FOR THE HEARING AND
DETERMINATION OF CLAIMS OF VIOLATION OF FEDERAL CONSTITUTIONAL
GUARANTEES."  HAPPILY, NEBRASKA IN THE INTERIM HAS ADOPTED JUST SUCH A
PROCEDURE THUS OBVIATING THE NECESSITY OF OUR PASSING UPON THE
QUESTION. 

IT SHOULD BE POINTED OUT, HOWEVER, THAT AS EARLY AS 1949 THIS COURT
IN YOUNG V. RAGEN, 337 U.S. 235, ARTICULATED THE PRINCIPLE THAT THE
STATES MUST AFFORD PRISONERS SOME "CLEARLY DEFINED METHOD BY WHICH THEY
MAY RAISE CLAIMS OF DENIAL OF FEDERAL RIGHTS."  ID., AT 239.  BUT
COMPARE MOONEY V. HOLOHAN, 294 U.S. 103 (1935).  IN STATING THAT
PROPOSITION THE COURT NOTED:  "THE DOCRINE OF EXHAUSTION OF STATE
REMEDIES, TO WHICH THIS COURT HAS REQUIRED THE SCRUPULOUS ADHERENCE OF
ALL FEDERAL COURTS  ...  PRESUPPOSES THAT SOME ADEQUATE STATE REMEDY
EXISTS.  WE RECOGNIZE THE DIFFICULTIES WITH WHICH THE ILLINOIS SUPREME
COURT IS FACED IN ADAPTING AVAILABLE STATE PROCEDURES TO THIS
REQUIREMENT  ...  .  NEVERTHELESS, THAT REQUIREMENT MUST BE MET." 
YOUNG V. RAGEN, SUPRA, AT 238-239. 

THEREAFTER, THE ILLINOIS POST-CONVICTION HEARING ACT WAS ADOPTED. 
(FN1)  IT WAS FOLLOWED BY PASSAGE OF A STATUTE IN NORTH CAROLINA IN
1951 WHICH WAS "MODELED" ON THE ILLINOIS ACT.  (FN2) MILLER V. STATE,
237 N.C. 29, 51, 74 S.E.2D 513, 528 (1953).  NEBRASKA IS THE SEVENTH
STATE TO ADOPT SUCH A STATUTE SINCE YOUNG V. RAGEN, SUPRA.  (FN3)
THERE EXISTS IN SOME STATES A WIDE VARIETY OF PROCEDURAL TECHNIQUES
THAT HAVE BEEN USED TO DEAL WITH DUE PROCESS ATTACKS ON CRIMINAL
CONVICTIONS, I.E., BASIC COMMON-LAW REMEDIES SUCH AS HABEAS CORPUS,
CORAM NOBIS AND DELAYED MOTIONS FOR NEW TRIAL.  BUT THE GREAT
VARIATIONS IN THE SCOPE AND AVAILABILITY OF SUCH REMEDIES RESULT IN
THEIR BEING ENTIRELY INADEQUATE. 

AS A CONSEQUENCE THERE HAS BEEN A TREMENDOUS INCREASE IN HABEAS
CORPUS APPLICATIONS IN FEDERAL COURTS.  INDEED, IN THE SUPREME COURT
ALONE THEY HAVE INCREASED THREEFOLD IN THE LAST 15 YEARS.  THIS HAS
BROUGHT ABOUT MUCH PUBLIC AGITATION AND DEBATE OVER PROPOSED
LIMITATIONS OF THE HABEAS CORPUS JURISDICTION OF FEDERAL COURTS.  THE
NECESSITY FOR SUCH PROPOSALS HAS BEEN BASED ON VARIOUS GROUNDS,
INCLUDING THAT OF FEDERAL-STATE COMITY; INORDINATE DELAY IN THE
ADMINISTRATION OF CRIMINAL JUSTICE IN THE STATE COURTS; AND THE HEAVY
BURDEN ON THE FEDERAL JUDICIARY.  NONE OF THESE WILL SURVIVE CAREFUL
SCRUTINY. 

STRANGELY ENOUGH THERE HAS BEEN LITTLE LIGHT THROWN ON THE NECESSITY
FOR MORE EFFECTIVE POSTCONVICTION REMEDIES IN THE STATES.  IN 1958 THE
BURTON COMMITTEE (FN4) REPORTED OUT A PRELIMINARY DRAFT OF FINDINGS IN
WHICH IT STATED: 

"THAT THE LAW OF STATE POST-CONVICTION PROCESS IN MANY STATES WAS
WHOLLY INADEQUATE TO COPE WITH THE DEMANDS NOW BEING PLACED UPON IT.
IN SOME JURISDICTIONS PRISONERS WERE ALTOGETHER PRECLUDED FROM DIRECT
ACCESS TO THE COURTS.  COCHRAN V. KANSAS, 316 U.S. 255 (1942); DOWD V.
COOK, 340 U.S. 206 (1951).  ...  IN MANY MORE, THE PROCEDURES
RECOGNIZED BY STATE LAW FAILED TO PROVIDE GENUINE OPPORTUNITIES FOR
TESTING CONSTITUTIONAL ISSUES OF THE MOST NUMEROUS AND IMPORTANT
TYPES.  THE RESULT WAS THAT PRISONERS OFTEN FAILED TO OBTAIN HEARINGS
ON THEIR ALLEGATIONS IN THE STATE COURTS.  THIS, IN TURN, INCREASED THE
NUMBER OF PETITIONS IN STATE AND FEDERAL COURTS AND WAS GENERALLY
PRODUCTIVE OF FRUSTATIONS IN ALL PERSONS CONCERNED WITH THE PROCESS." 
(FN5) 

BELIEVING THAT THE PRACTICAL ANSWER TO THE PROBLEM IS THE ENACTMENT
BY THE SEVERAL STATES OF POSTCONVICTION REMEDY STATUTES I APPLAUD THE
ACTION OF NEBRASKA.  THIS WILL ENABLE PRISONERS TO "AIR OUT" THEIR
CLAIMS IN THE STATE COURTS AND WILL STOP THE RISING CONFLICT PRESENTLY
BEING GENERATED BETWEEN FEDERAL AND STATE COURTS.  THIS HAS PROVEN TRUE
IN ILLINOIS WHERE IT IS REPORTED THAT FEDERAL APPLICATIONS FROM STATE
PRISONERS DROPPED CONSIDERABLY AFTER ITS ACT WAS ADOPTED.  I UNDERSTAND
THAT THE ILLINOIS LEGISLATURE IS NOW CONSIDERING THE ENLARGEMENT OF THE
FIVE-YEAR LIMITATIONS PERIOD OF ITS PRESENT ACT TO A 20-YEAR PERIOD. 
THE CONSENSUS IS THAT THIS WILL SOLVE THE PROBLEM ENTIRELY IN ILLINOIS,
WHICH WAS ORIGINALLY THE "SORE SPOT" OF THE NATION IN THIS REGARD. 

I HOPE THAT THE VARIOUS STATES WILL FOLLOW THE LEAD OF ILLINOIS,
NEBRASKA, MARYLAND, NORTH CAROLINA, MAINE, OREGON AND WYOMING IN
PROVIDING THIS MODERN PROCEDURE FOR TESTING FEDERAL CLAIMS IN THE STATE
COURTS AND THUS RELIEVE THE FEDERAL COURTS OF THIS EVER-INCREASING
BURDEN. 

FN1  ILL. REV. STAT., C. 38, SECS 122-1 - 122-7 (1963). 

FN2  N.C. GEN. STAT. SECS 15-217 - 15-222 (SUPP. 1963). 

FN3  MARYLAND, MAINE, OREGON AND WYOMING HAVE PASSED SIMILAR
LEGISLATION.  MD. ANN. CODE, ART. 27, SECS 645A TO 645J (SUPP. 1964);
ME. REV. STAT. ANN., C. 126, SECS 1-A TO 1-G (SUPP. 1963); ORE.  REV. 
STAT. SECS 138.510-138.680 (1963); WYO. STAT. ANN. SECS 7-408.1 TO 7
408.8 (1963 CUM. SUPP.).  IT SHOULD BE NOTED, HOWEVER, THAT SIX OTHER
STATES HAVE ADOPTED SIMILAR PROCEDURES BY RULE OF COURT.  SEE ALASKA
SUP. CT. RULE 35(B); DEL. SUPER.  CT. CRIM. PROC. RULE 35; FLA. RULES
CRIM. PROC. 1; KY. RULES CRIM. PROC. 11.42; MO. SUP.  CT. RULE 27.26;
N.J. CRIM. PRAC.  RULES OF SUPER.  AND COUNTY CTS., RULE 3:10A-2. 

FN4  THE LATE MR. JUSTICE BURTON OF REVERED MEMORY WAS CHAIRMAN OF
THE COMMITTEE ON POST CONVICTION REMEDIES OF THE AMERICAN BAR
ASSOCIATION'S SECTION OF JUDICIAL ADMINISTRATION.  IN AUGUST 1958 IT
CIRCULATED A PRELIMINARY DRAFT OF A STUDY ENTITLED EFFECTIVE STATE POST
CONVICTION PROCEDURES - THEIR NATURE AND ESSENTIALITIES, WHICH WAS
PREPARED BY THE SEMINAR IN CRIMINAL PROCEDURE OF THE UNIVERSITY OF
CHICAGO LAW SCHOOL UNDER THE DIRECTION OF PROFESSOR FRANCIS A. ALLEN. 

FN5 ID., AT 2-3. 

MR. JUSTICE BRENNAN, CONCURRING. 

THE PETITIONER ENTERED HIS PLEA OF GUILTY ON APRIL 18, 1963, ONE
MONTH AFTER THIS COURT'S DECISION IN GIDEON V. WAINWRIGHT, 372 U.S.
335, HOLDING THE SIXTH AMENDMENT GUARANTEE OF COUNSEL APPLICABLE TO
STATE PROSECUTIONS BY VIRTUE OF THE FOURTEENTH AMENDMENT.  (FN1)  THE
NEBRASKA SUPREME COURT FOLLOWED PRIOR NEBRASKA DECISIONS IN HOLDING
THAT, IN A HABEAS CORPUS ACTION BROUGHT BY A CONVICTED PRISONER,
JUDICIAL INQUIRY IS LIMITED TO THE JURISDICTION OF THE CONVICTING COURT
OVER THE OFFENSE AND OVER THE PERSON OF THE ACCUSED, AND TO THE
QUESTION WHETHER THE SENTENCE IMPOSED WAS WITHIN THE POWER OF THE
COURT.  (FN2)  THE STATE CONCEDED IN ITS RESPONSE TO THE PETITION FOR
CERTIORARI THAT HABEAS CORPUS WAS UNAVAILABLE TO HEAR PETITIONER'S
CLAIM AND THAT PETITIONER HAD NO OTHER REMEDY IN THE STATE COURTS. 
(FN3) 

ON ORAL ARGUMENT, COUNSEL APPOINTED FOR PETITIONER, SEE 379 U.S. 995,
CONCEDED THE RELEVANCY OF THE NEW NEBRASKA POSTCONVICTION PROCEDURE,
(FN4) BUT CONTENDED THAT PETITIONER WAS NEVERTHELESS ENTITLED TO A
DECLARATION THAT HE HAD BEEN UNCONSTITUTIONALLY DENIED A HEARING BY THE
NEBRASKA COURTS, AND TO A REVERSAL OF THE JUDGMENT OF THE NEBRASKA
SUPREME COURT AND A MANDATE DIRECTING THAT BY SOME PROCEDURE THE
PETITIONER'S CLAIM BE ADEQUATELY ADJUDICATED.  (FN5) 

PETITIONER CONCEDES THAT THE COURT'S PRACTICE HAS BEEN TO REMIT
PRISONERS TO THEIR FEDERAL HABEAS CORPUS REMEDY.  SEE, E.G., JENNINGS
V. ILLINOIS, 342 U.S. 104.  BUT HE CONTENDS THAT SUBSTITUTING FEDERAL
FOR STATE CORRECTIVE PROCESS, INSTEAD OF DIRECTING THE STATE ITSELF TO
MEET ITS OBLIGATION, IS A DISSERVICE TO SOUND PRINCIPLES OF
FEDERALISM.  (FN6)  HE POINTS TO THE VAST INCREASE IN THE NUMBER OF
FEDERAL HABEAS CORPUS APPLICATIONS BY STATE PRISONERS AS EVIDENCE THAT
LACK OF ADEQUATE STATE PROCEDURES HAS PUT AN INTOLERABLE STRAIN ON THE
FEDERAL WRIT AND HAS BROUGHT ABOUT MOUNTING FRICTION BETWEEN STATE AND
FEDERAL COURTS.  SEE HENRY V. MISSISSIPPI, 379 U.S. 443, 453.  IN
SHORT, HE CONTENDS THAT IF THE EVOLUTION IN THE COVERAGE OF THE
FOURTEENTH AMENDMENT AND IN THE SCOPE OF FEDERAL HABEAS CORPUS, SEE FAY
V. NOIA, 372 U.S. 391, IS NOT TO PULL THE FEDERAL JUDICIARY
INCREASINGLY INTO STATE CRIMINAL ADMINISTRATION, THE STATES MUST
PROVIDE BROADER PROCEDURES MORE HOSPITABLE TO FEDERAL CONSTITUTIONAL
CLAIMS. 

THE DESIRABILITY OF MINIMIZING THE NECESSITY FOR RESORT BY STATE
PRISONERS TO FEDERAL HABEAS CORPUS IS NOT TO BE DENIED.  OUR FEDERAL
SYSTEM ENTRUSTS THE STATES WITH PRIMARY RESPONSIBILITY FOR THE
ADMINISTRATION OF THEIR CRIMINAL LAWS.  THE FOURTEENTH AMENDMENT AND
THE SUPREMACY CLAUSE MAKE REQUIREMENTS OF FAIR AND JUST PROCEDURES AN
INTEGRAL PART OF THOSE LAWS, AND STATE PROCEDURES SHOULD IDEALLY
INCLUDE ADEQUATE ADMINISTRATION OF THESE GUARANTEES AS WELL.  (FN7)
IF, BY EFFECTIVE CORRECTIVE PROCESSES, THE STATES ASSUMED THIS BURDEN,
THE EXHAUSTION REQUIREMENT OF 28 U.S.C. SEC 2254 (1958 ED.)  WOULD
CLEARLY PROMOTE STATE PRIMACY IN THE IMPLEMENTATION OF THESE
GUARANTEES.  OF GREATER IMPORTANCE, IT WOULD ASSURE NOT ONLY THAT
MERITORIOUS CLAIMS WOULD GENERALLY BE VINDICATED WITHOUT ANY NEED FOR
FEDERAL COURT INTERVENTION, BUT THAT NONMERITORIOUS CLAIMS WOULD BE
FULLY VENTILATED, MAKING EASIER THE TASK OF THE FEDERAL JUDGE IF THE
STATE PRISONER PURSUED HIS CAUSE FURTHER.  SEE TOWNSEND V. SAIN, 372
U.S. 293, 312-318.  GREATER FINALITY WOULD INEVITABLY ATTACH TO STATE
COURT DETERMINATIONS OF FEDERAL CONSTITUTIONAL QUESTIONS, BECAUSE
FURTHER EVIDENTIARY HEARINGS ON FEDERAL HABEAS CORPUS WOULD, IF THE
CONDITIONS OF TOWNSEND V. SAIN WERE MET, PROVE UNNECESSARY. 

NONE CAN VIEW WITH SATISFACTION THE CHANNELING OF A LARGE PART OF
STATE CRIMINAL BUSINESS TO FEDERAL TRIAL COURTS.  IF ADEQUATE STATE
PROCEDURES, PRESENTLY ALL TOO SCARCE, (FN8) WERE GENERALLY ADOPTED,
MUCH WOULD BE DONE TO REMOVE THE IRRITANT OF PARTICIPATION BY THE
FEDERAL DISTRICT COURTS IN STATE CRIMINAL PROCEDURE.  THE 1954 REPORT
OF THE SPECIAL COMMITTEE ON HABEAS CORPUS OF THE CONFERENCE OF CHIEF
JUSTICES POINTED THE WAY IN URGING THAT "STATE STATUTES SHOULD PROVIDE
A POSTCONVICTION PROCESS AT LEAST AS BROAD IN SCOPE AS EXISTING FEDERAL
STATUTES UNDER WHICH CLAIMS OF VIOLATION OF CONSTITUTIONAL RIGHT
ASSERTED BY STATE PRISONERS ARE DETERMINED IN FEDERAL COURTS UNDER THE
FEDERAL HABEAS CORPUS STATUTES," AND RECOMMENDING PROVISIONS FOR
HEARING, A RECORD, FACT FINDINGS AND CONCLUSIONS OF LAW.  H.R. REP. NO.
1293, 85TH CONG., 2D SESS., P. 7 ET SEQ. 

THESE ARE SIMILAR TO OTHER SUGGESTIONS OF DESIRABLE ATTRIBUTES OF A
STATE POSTCONVICTION PROCEDURE WHICH SHOULD REDUCE THE NECESSITY FOR
EXERCISE OF FEDERAL HABEAS CORPUS JURISDICTION.  (FN9)  THE PROCEDURE
SHOULD BE SWIFT AND SIMPLE AND EASILY INVOKED.  IT SHOULD BE
SUFFICIENTLY COMPREHENSIVE TO EMBRACE ALL FEDERAL CONSTITUTIONAL
CLAIMS.  IN LIGHT OF FAY V. NOIA, SUPRA, IT SHOULD ESCHEW RIGID AND
TECHNICAL DOCTRINES OF FORFEITURE, WAIVER, OR DEFAULT.  SEE DOUGLAS V.
ALABAMA, 380 U.S. 415, 422-423; HENRY V. MISSISSIPPI, SUPRA.  IT SHOULD
PROVIDE FOR FULL FACT HEARINGS TO RESOLVE DISPUTED FACTUAL ISSUES, AND
FOR COMPILATION OF A RECORD TO ENABLE FEDERAL COURTS TO DETERMINE THE
SUFFICIENCY OF THOSE HEARINGS.  TOWNSEND V. SAIN, SUPRA.  IT SHOULD
PROVIDE FOR DECISIONS SUPPORTED BY OPINIONS, OR FACT FINDINGS AND
CONCLUSIONS OF LAW, WHICH DISCLOSE THE GROUNDS OF DECISION AND THE
RESOLUTION OF DISPUTED FACTS.  PROVISION FOR COUNSEL TO REPRESENT
PRISONERS, AS IN SEC 4 OF THE NEBRASKA ACT, WOULD ENHANCE THE
PROBABILITY OF EFFECTIVE PRESENTATION AND A PROPER DISPOSITION OF
PRISONERS' CLAIMS.    BUT THERE IS NO OCCASION IN THIS CASE TO DECIDE
WHETHER DUE PROCESS REQUIRES THE STATES TO PROVIDE CORRECTIVE PROCESS. 
THE NEW STATUTE ON ITS FACE IS PLAINLY AN ADEQUATE CORRECTIVE PROCESS. 
EVERY CONSIDERATION OF FEDERALISM SUPPORTS OUR CONCLUSION TO AFFORD THE
NEBRASKA COURTS THE OPPORTUNITY TO SAY WHETHER THAT PROCESS IS
AVAILABLE FOR THE HEARING AND DETERMINATION OF PETITIONER'S CLAIM. 

FN1  THE PETITION FOR HABEAS CORPUS READS: 

"PETITIONER, PAUL VERNON CASE, WAS SENTENCED TO FIVE (5) YEARS IN THE
NEBRASKA PENAL AND CORRECTIONAL COMPLEX ON MAY 3, 1963, A.D. 
"PETITIONER WAS 'FAST TALKED' AND FORCIBLY COERCED INTO WAIVING HIS
RIGHTS (U.S.  CONSTITUTIONAL RIGHTS) TO HAVE ADVICE AND COUNSEL; TO
HAVE A PRELIMINARY HEARING, AND TO PLEAD NOT-GUILTY. 

"MR. WILLIAM D. BLUE TOLD PETITIONER HE, PETITIONER, WOULD BE CHARGED
WITH BEING 'AN HABITUAL CRIMINAL' IF HE DID NOT WAIVE THESE RIGHTS. 
HE, PETITIONER WAS HELD IN SOLITARY CONFINEMENT IN CITY JAIL, UNTIL
SUCH TIME AS HE WOULD AGREE - UNDER CRUEL AND UNUSUAL CIRCUMSTANCES. 

"THE BASIC RIGHTS WAIVED BY THIS PETITIONER ARE GUARANTEED HIM UNDER
THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND ARE SO FUNDAMENTAL AND
ESSENTIAL TO A FAIR TRIAL THAT THEY ARE MADE OBLIGATORY UPON THE
STATES, ALL STATES, BY WAY OF THE FOURTEENTH AMENDMENT.  FOR REFERENCE
SEE GIDEON VS. WAINWRIGHT IN THE U.S. SUPREME COURT.  OCTOBER 1962,
TERM, NO. 155; ALL JUSTICES CONCURRING." 

FN2 SEE JACKSON V. OLSON, 146 NEB. 885, 893-894, 22 N.W.2D 124, 129
130; IN RE DUNN, 150 NEB. 669, 35 N.W.2D 673; HAWK V. OLSON, 145 NEB.
306, 16 N.W.2D 181, REV'D 326 U.S. 271, ON REMAND, 146 NEB. 875, 22
N.W.2D 136. 

FN3  THE RESPONSE STATED:  "FOR ALL PRACTICAL PURPOSES, THERE IS NO
COLLATERAL REMEDY AVAILABLE IN THE NEBRASKA COURTS TO A STATE PRISONER
WHO ALLEGES THAT A VIOLATION OF HIS FEDERAL CONSTITUTIONAL RIGHTS
OCCURRED IN CONNECTION WITH HIS CONVICTION AND WHOSE CLAIM HAS NOT YET
BEEN CONSIDERED BY THE STATE COURTS, UNLESS THE PRISONER'S CLAIM IS
PREDICATED UPON A LACK OF JURISDICTION OF THE SENTENCING COURT OVER THE
OFFENSE OR OVER THE PERSON OF THE ACCUSED." 

IN ADDITION TO THIS CONCESSION THAT THE STATE PROVIDED NO REMEDY
WHATEVER, PETITIONER CITES CARLSEN V. STATE, 129 NEB. 84, 261 N.W. 339,
AS AUTHORITY FOR THE UNAVAILABILITY OF CORAM NOBIS; NEB. REV. STAT. SEC
29-2103 (1964 REISSUE), AS BARRING A MOTION FOR A NEW TRIAL; AND NEB.
REV. STAT. SEC 25-1912 (1964 REISSUE), AS BARRING AN APPEAL. 

FN4  THE NEW STATUTE, NEB. LEG.  BILL 836, 75TH SESSION, EFFECTIVE
APRIL 12, 1965, PROVIDES: 

"SEC. 1.  A PRISONER IN CUSTODY UNDER SENTENCE AND CLAIMING A RIGHT
TO BE RELEASED ON THE GROUND THAT THERE WAS SUCH A DENIAL OR
INFRINGEMENT OF THE RIGHTS OF THE PRISONER AS TO RENDER THE JUDGMENT
VOID OR VOIDABLE UNDER THE CONSTITUTION OF THIS STATE OR THE
CONSTITUTION OF THE UNITED STATES, MAY FILE A VERIFIED MOTION AT ANY
TIME IN THE COURT WHICH IMPOSED SUCH SENTENCE, STATING THE GROUNDS
RELIED UPON, AND ASKING THE COURT TO VACATE OR SET ASIDE THE SENTENCE. 

"UNLESS THE MOTION AND THE FILES AND RECORDS OF THE CASE SHOW TO THE
SATISFACTION OF THE COURT THAT THE PRISONER IS ENTITLED TO NO RELIEF,
THE COURT SHALL CAUSE NOTICE THEREOF TO BE SERVED ON THE COUNTY
ATTORNEY, GRANT A PROMPT HEARING THEREON, DETERMINE THE ISSUES AND MAKE
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT THERETO.  IF THE
COURT FINDS THAT THERE WAS SUCH A DENIAL OR INFRINGEMENT OF THE RIGHTS
OF THE PRISONER AS TO RENDER THE JUDGMENT VOID OR VOIDABLE UNDER THE
CONSTITUTION OF THIS STATE OR THE CONSTITUTION OF THE UNITED STATES,
THE COURT SHALL VACATE AND SET ASIDE THE JUDGMENT AND SHALL DISCHARGE
THE PRISONER OR RESENTENCE HIM OR GRANT A NEW TRIAL AS MAY APPEAR
APPROPRIATE.  PROCEEDINGS UNDER THE PROVISIONS OF THIS ACT SHALL BE
CIVIL IN NATURE.  COSTS SHALL BE TAXED AS IN HABEAS CORPUS CASES. 

"A COURT MAY ENTERTAIN AND DETERMINE SUCH MOTION WITHOUT REQUIRING
THE PRODUCTION OF THE PRISONER, WHETHER OR NOT A HEARING IS HELD. 
TESTIMONY OF THE PRISONER OR OTHER WITNESSES MAY BE OFFERED BY
DEPOSITION.  THE COURT NEED NOT ENTERTAIN A SECOND MOTION OR SUCCESSIVE
MOTIONS FOR SIMILAR RELIEF ON BEHALF OF THE SAME PRISONER. 

"SEC. 2.  AN ORDER SUSTAINING OR OVERRULING A MOTION FILED UNDER THE
PROVISIONS OF THIS ACT SHALL BE DEEMED TO BE A FINAL JUDGMENT, AND AN
APPEAL MAY BE TAKEN TO THE SUPREME COURT THEREFROM AS PROVIDED FOR IN
APPEALS IN CIVIL CASES; PROVIDED, THAT A PRISONER MAY IN THE DISCRETION
OF THE SUPREME COURT UPON APPLICATION TO THE COURT BE RELEASED ON SUCH
RECOGNIZANCE AS THE SUPREME COURT SHALL FIX PENDING THE DETERMINATION
OF THE APPEAL. 

"SEC. 3.  THE REMEDY PROVIDED BY THIS ACT IS CUMULATIVE AND IS NOT
INTENDED TO BE CONCURRENT WITH ANY OTHER REMEDY EXISTING IN THE COURTS
OF THIS STATE.  ANY PROCEEDING FILED UNDER THE PROVISIONS OF THIS ACT
WHICH STATES FACTS WHICH IF TRUE WOULD CONSTITUTE GROUNDS FOR RELIEF
UNDER ANOTHER REMEDY SHALL BE DISMISSED WITHOUT PREJUDICE. 

"SEC. 4.  THE DISTRICT COURT MAY APPOINT AN ATTORNEY OR ATTORNEYS,
NOT EXCEEDING TWO, TO REPRESENT THE PRISONERS IN ALL PROCEEDINGS UNDER
THE PROVISIONS OF THIS ACT AND FIX THEIR COMPENSATION AS PROVIDED IN

FN5  THE PETITIONER STATES IN HIS BRIEF: 

"AT THIS STAGE OF THE LITIGATION THE COURT NEED NOT PASS ON THE STEPS
TO BE TAKEN IF THE NEBRASKA COURT SHOULD FAIL TO COMPLY WITH A MANDATE
REQUIRING CORRECTIVE PROCESS FOR PETITIONER.  IT MIGHT BE SUGGESTED,
HOWEVER, THAT THE PROBLEM ESSENTIALLY IS NO DIFFERENT FROM ACTUAL OR
POTENTIAL DISOBEDIENCE OF THE MANDATE IN MANY OTHER CASES REMANDED BY
THIS COURT.  IF ON THE REMAND NEBRASKA FAILED TO MAKE CORRECTIVE
PROCESS AVAILABLE, PETITIONER COULD RETURN HERE WITH A FRESH PETITION
FOR CERTIORARI.  THIS COURT COULD THEN ORDER PETITIONER'S DISCHARGE
FROM CUSTODY.  THAT IS THE ULTIMATE SANCTION BEHIND THE DUE PROCESS
REQUIREMENT OF STATE CORRECTIVE PROCESS.  SEE DOWD V. COOK, 340 U.S.
206, 209-10." 

IN SUPPORT OF THIS CONTENTION, THE PETITIONER ARGUES THAT THE
SUPREMACY CLAUSE AND THE FUNDAMENTAL FOURTEENTH AMENDMENT RIGHT TO A
HEARING CONSTITUTIONALLY REQUIRE THE STATES TO AFFORD CORRECTIVE
JUDICIAL PROCESS TO REMEDY FEDERAL CONSTITUTIONAL DEFECTS IN THEIR
CRIMINAL PROSECUTIONS, CITING FRANK V. MANGUM, 237 U.S. 309, 335; MOORE
V. DEMPSEY, 261 U.S. 86, 91; MOONEY V. HOLOHAN, 294 U.S. 103, 113; NEW
YORK EX REL. WHITMAN V. WILSON, 318 U.S. 688, 690; CARTER V. ILLINOIS,
329 U.S. 173, 175-176; FOSTER V. ILLINOIS, 332 U.S. 134, 139; TAYLOR V.
ALABAMA, 335 U.S. 252, 272 (CONCURRING OPINION); YOUNG V. RAGEN, 337
U.S. 235, 238-239.  IN ADDITION TO THE CASES CITED INVOLVING CRIMINAL
CONVICTIONS, PETITIONER CITES AS OTHER APPLICATIONS OF THE GENERAL
PRINCIPLE GENERAL OIL CO. V. CRAIN, 209 U.S. 211, 228; KENNEY V.
SUPREME LODGE, 252 U.S. 411, 415; WARD V. LOVE COUNTY, 253 U.S. 17;
MCKNETT V. ST. LOUIS & S.F.R. CO., 292 U.S. 230; TESTA V. KATT, 330
U.S. 386.  HE ALSO ARGUES THAT, SINCE NEBRASKA ALLOWED HABEAS CORPUS TO
ATTACK CONVICTIONS FOR JURISDICTIONAL DEFECTS BASED ON NEBRASKA LAW,
THE NEBRASKA SUPREME COURT UNCONSTITUTIONALLY DISCRIMINATED AGAINST
FEDERAL LAW BY REFUSING HABEAS CORPUS FOR JURISDICTIONAL DEFECTS BASED
ON THE FOURTEENTH AMENDMENT.  FOR THE PROPOSITION THAT A STATE MAY NOT
DISCRIMINATE AGAINST RIGHTS ARISING UNDER FEDERAL LAWS, PETITIONER
CITES MCKNETT V. ST. LOUIS & S.F.R.  CO., SUPRA, AND TESTA V. KATT,
SUPRA, AND FOR THE PROPOSITION THAT AN UNCONSTITUTIONAL DENIAL OF
COUNSEL IS A JURISDICTIONAL DEFECT RELIES ON JOHNSON V. ZERBST, 304
U.S. 458. 

FN6  PETITIONER REFERS TO YOUNG V. RAGEN, SUPRA, WHERE, IN VACATING
THE DENIAL OF STATE HABEAS CORPUS, THE COURT SAID:  "IF THERE IS NOW NO
POST-TRIAL PROCEDURE BY WHICH FEDERAL RIGHTS MAY BE VINDICATED IN
ILLINOIS, WE WISH TO BE ADVISED OF THAT FACT UPON REMAND OF THIS
CASE."  337 U.S., AT 239.  HE ALSO CITES JACKSON V. DENNO, 378 U.S.
368; BOLES V. STEVENSON, 379 U.S. 43; HENRY V. MISSISSIPPI, 379 U.S.
443; AND NOTE, EFFECT OF THE FEDERAL CONSTITUTION IN REQUIRING STATE
POST-CONVICTION REMEDIES, 53 COL. L. REV. 1143 (1953). 

FN7  DEAN GRISWOLD OF THE HARVARD LAW SCHOOL, IN AN ADDRESS, "THE
STATES AND CRIMINAL LAW," GIVEN ON MAY 13, 1965, TO THE CLEVELAND BAR
ASSOCIATION, SAID: 

"FOR, AFTER ALL, THE BASIC RESPONSIBILITY FOR THE ENFORCEMENT OF THE
CRIMINAL LAW REMAINS WITH THE STATES.  THE STATES ARE, OR SHOULD BE, AS
MUCH CONCERNED WITH HIGH STANDARDS AS IS THE FEDERAL GOVERNMENT.  THE
STATES SHOULD, IN MY VIEW, WELCOME THE DETERMINATIONS OF THE SUPREME
COURT THAT THE HIGH STANDARDS PRESCRIBED BY OUR FEDERAL CONSTITUTION
ARE TO BE TAKEN SERIOUSLY AND SHOULD BE ENFORCED.  WHAT IS NEEDED NOW
IS FOR THE STATES TO ACCEPT THIS RESPONSIBLITY, AND TO ADOPT MEANS TO
CARRY IT OUT.  WITH PROPER EXPLANATION AND UNDERSTANDING, THIS CAN, I
BELIEVE, BE DONE WITHOUT IMPAIRING OUR ENFORCEMENT OF THE CRIMINAL
LAW.  WHEN THE STATES DO FULLY MEET THIS RESPONSIBILITY, WE WILL ALL BE
BETTER OFF, AND WE WILL MORE NEARLY HAVE REALIZED THE POTENTIALITIES OF
OUR GREAT FEDERAL FORM OF GOVERNMENT." 

FN8  THE UNIFORM POST-CONVICTION PROCEDURE ACT, 9B UNIFORM LAWS ANN.
352-359, DESIGNED TO PROVIDE ADJUDICATION OF FEDERAL CLAIMS, HAS HAD
BUT SLIGHT INFLUENCE IN THE STATES.  ARKANSAS ADOPTED THE UNIFORM ACT
IN 1957, BUT REPEALED IT TWO YEARS LATER.  2 ACTS OF ARKANSAS (1959)
1160-1161.  SIX STATES IN ADDITION TO NEBRASKA HAVE ADOPTED THEIR OWN
STATUTES.  ILL. REV. STAT., C. 38, SECS 122-1 TO 122-7 (1963); ME. REV.
STAT. ANN., C. 126, SECS 1-A TO 1-G (SUPP. 1963); MD. ANN. CODE, ART.
27, SECS 645A TO 645J (SUPP. 1964); N.C. GEN. STAT. SECS 15-217 TO 15
222 (SUPP. 1963); ORE.  REV.  STAT. SECS 138.510-138.680 (1963); WYO.
STAT. ANN. SECS 7-408.1 TO 7-408.8 (1963 CUM. SUPP.).  PROCEDURES HAVE
BEEN ADOPTED BY RULE OF COURT IN SIX STATES.  ALASKA SUP. CT. RULE
35(B); DEL. SUPER.  CT. CRIM. PROC. RULE 35(A); FLA. RULES CRIM. PROC.
1; KY. RULES CRIM. PROC. 11.42; MO. SUP.  CT. RULE 27.26; N.J. CRIM.
PRAC.  RULES OF SUPER.  AND COUNTY CTS., RULE 3:10A-2.  SOME STATE
COURTS ARE APPARENTLY BROADENING EXISTING POSTCONVICTION REMEDIES BY
JUDICIAL CONSTRUCTION.  SEE, E.G., PEOPLE V. HUNTLEY, 15 N.Y.2D 72, 204
N.E.2D 179 (1965); STATE EX REL. BANACH V. BOLES, 147 W.VA. 850, 858,
131 S.E.2D 722, 728 (1963); HUNT V. WARDEN, 335 F.2D 936, 941-942 (C.A.
4TH CIR.)(DISCUSSING THE EXPANDING MARYLAND REMEDY).  SEE ALSO THE
VIEWS EXPRESSED IN PEOPLE V. WILSON, 18 APP. DIV. 2D 424, 430, 239
N.Y.S.2D 900, 906; EX PARTE AARON, 275 ALA. 377, 381-382, 155 SO. 2D
334, 337-338 (DISSENTING OPINION); DONNELL V. NASH, 323 F.2D 850 (C.A.
8TH CIR.); COBB V. BALKCOM, 339 F.2D 95, 100 (C.A. 5TH CIR.).
PROPOSALS THAT THE STATES MAKE THEIR POSTCONVICTION PROCEDURES
COEXTENSIVE WITH FEDERAL HABEAS CORPUS ARE FOUND IN MEADOR,
ACCOMMODATING STATE CRIMINAL PROCEDURE AND FEDERAL POSTCONVICTION
REVIEW, 50 A.B.A.J. 928 (1964); NATIONAL ASSN. OF ATTYS.  GEN.,
CONFERENCE PROCEEDINGS, 1964, PP. 42-43 (REMARKS OF ARTHUR J. SILLS,
ATTY. GEN. OF NEW JERSEY), 149-150 (RESOLUTION OF THE ASSOCIATION);
BRENNAN, SOME ASPECTS OF FEDERALISM, 39 N.Y.U. L. REV. 945, 957-959
(1964). 

FN9  SEE MEADOR, SUPRA, 50 A.B.A.J., AT 929-930; BRENNAN, SUPRA, 39
N.Y.U. L. REV., AT 958-959; CF. REPORT NO. 23, ABA SECTION OF CRIMINAL
LAW (MID-WINTER MEETING, FEB. 1965) 5, 7. 
..END :




COLUMBIA ARTISTS MANAGEMENT INC. V. UNITED STATES 381 U.S. 348 


NO. 775.  DECIDED MAY 24, 1965.  - AFFIRMED. 


COLUMBIA ARTISTS MANAGEMENT INC. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN, MR. JUSTICE STEWART, AND MR. JUSTICE GOLDBERG,
DISSENTING. 

AN EXAMINATION OF THE PROCEEDINGS IN THIS CASE CONVINCES US THAT A
SUMMARY DISPOSITION OF THIS MATTER IS NOT APPROPRIATE. 

IN 1955 THE GOVERNMENT BROUGHT AN ANTITRUST ACTION AGAINST APPELLANT
COLUMBIA, APPELLANT COMMUNITY CONCERTS, INC. (COLUMBIA'S WHOLLY OWNED
SUBSIDIARY), AND TWO CORPORATIONS WHOSE SUCCESSOR IS APPELLEE SUMMY
BIRCHARD, INC.*  COLUMBIA AND SUMMY-BIRCHARD MANAGE PROFESSIONAL
CONCERT ARTISTS, AND THEIR AFFILIATES, COMMUNITY AND THE CIVIC CONCERT
SERVICE DIVISION OF SUMMY-BIRCHARD, ARE "CONCERT SERVICES," ORGANIZING
AND MAINTAINING LOCAL NONPROFIT "AUDIENCE ASSOCIATIONS" THROUGHOUT THE
COUNTRY WHICH SPONSOR CONCERT SERIES.  NORMALLY AN AUDIENCE ASSOCIATION
PAYS AN ARTIST AN ESTABLISHED FEE SET BY THE ARTIST AND HIS MANAGER,
OUT OF WHICH THE ARTIST'S MANAGER RETAINS A SHARE AND THE CONCERT
SERVICE ALSO RETAINS A SHARE KNOWN AS THE "MARGIN."  THE GOVERNMENT'S
COMPLAINT CHARGED A CONSPIRACY TO MONOPOLIZE THE BUSINESS OF MANAGING
AND BOOKING CONCERT ARTISTS AND THE BUSINESS OF FORMING AND MAINTAINING
AUDIENCE ASSOCIATIONS. 

*SUMMY-BIRCHARD IS SUCCESSOR TO BOTH THE NATIONAL CONCERT AND ARTISTS
CORP. AND ITS WHOLLY OWNED SUBSIDIARY, CIVIC CONCERT SERVICES, INC. 

ON OCTOBER 20, 1955, A CONSENT DECREE WAS ENTERED BY THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, THE TERMS OF WHICH PROVIDE
THAT THE MANAGING COMPANIES MUST MAKE THEIR ARTISTS AVAILABLE TO ALL
CONCERT SERVICES AT THE SAME RATE AND THAT THE CONCERT SERVICES MUST
MAKE PERFORMERS AVAILABLE TO AUDIENCE ASSOCIATIONS WITHOUT REFERENCE TO
THE MANAGEMENT OF THE ARTISTS.  PARAGRAPH VID) OF THE DECREE REQUIRES
THAT EACH DEFENDANT MAKE AVAILABLE "TO ANY FINANCIALLY RESPONSIBLE
CONCERT SERVICE ANY ARTIST MANAGED BY SUCH DEFENDANT AND REASONABLY
AVAILABLE FOR THE DESIRED PERFORMANCE, AT THE SAME MARGIN ALLOWED TO
THE DEFENDANT OR ITS AFFILIATE CONCERT SERVICE BY THAT ARTIST FOR A
PERFORMANCE FOR THE SAME FEE." 

COLUMBIA'S STANDARD CONTRACT WITH CONCERT SERVICES CONTAINS A
PROVISION, WHICH COLUMBIA ARGUES IS REQUIRED BY A COLLECTIVE BARGAINING
AGREEMENT AMONG MANAGERS AND THE CONCERT ARTISTS' UNION, PROHIBITING A
CONCERT SERVICE FROM BOOKING AN ENGAGEMENT AT LESS THAN THE ARTIST'S
ESTABLISHED FEE WITHOUT THE CONSENT OF THE ARTIST.  AFTER SUMMY
BIRCHARD PROTESTED AGAINST SIGNING CONTRACTS CONTAINING THIS PROVISION
ON THE GROUND THAT IT CONSTITUTED ILLEGAL RESALE PRICE MAINTENANCE,
COLUMBIA PETITIONED THE DISTRICT COURT ON JULY 18, 1963, FOR A
CONSTRUCTION OF THE 1955 CONSENT DECREE, ALLEGING IN PART THAT THE
DECREE SPECIFICALLY SANCTIONED THIS CONTRACT PROVISION AND THUS
INSULATED IT FROM ATTACK BY A PARTY TO THE DECREE.  THE GOVERNMENT AND
SUMMY-BIRCHARD WERE JOINED AS PARTIES.  THE DISTRICT COURT HELD THAT
THIS CONTRACT PROVISION PREVENTED COMPETITION AMONG CONCERT SERVICES,
FOR IT REQUIRED ALL OF THEM TO BE PAID THE SAME "MARGIN" FOR EACH
ARTIST, AND CONCLUDED THAT SUCH A PROVISION WAS ILLEGAL.  AFTER
REARGUMENT, THE DISTRICT COURT REAFFIRMED ITS PRIOR OPINION AND STATED
IN ITS FINAL ORDER: 

"THE PROVISION IN COLUMBIA'S CONTRACT  ...  THAT EACH ENGAGEMENT
BEFORE AN AUDIENCE ASSOCIATION SHALL BE PERFORMED AT THE ARTIST'S
ESTABLISHED FEE CONSTITUTES ILLEGAL RESALE PRICE MAINTENANCE AND IS A
PER SE VIOLATION OF SECTION 1 OF THE SHERMAN ACT (15 U.S.C.  SEC 1). 
TO THE EXTENT THAT THE FINAL JUDGMENT OPERATES TO ALLOW COLUMBIA TO SET
SUCH RESALE PRICES, IT IS ILLEGAL AND VOID AS CONTRARY TO THE SHERMAN
ACT, AND ANY CONTINUED RELIANCE BY COLUMBIA UPON SUCH PORTION OR
PORTIONS OF THE FINAL JUDGMENT WILL NOT BE CONSTRUED BY THE COURT TO BE
IN ANY WAY VALID." 

COLUMBIA APPEALS FROM THIS JUDGMENT CLAIMING THAT IT CONSTITUTES A
MODIFICATION OF THE 1955 CONSENT DECREE AND THAT THE DISTRICT COURT IS
WITHOUT POWER TO MODIFY THE DECREE WITHOUT COLUMBIA'S AGREEMENT. 

            I. 

IN OUR VIEW THERE IS SUBSTANCE TO COLUMBIA'S CONTENTION THAT THE
DISTRICT COURT MODIFIED THE 1955 CONSENT DECREE.  AS WE READ THE
DISTRICT COURT'S OPINION, THAT COURT HELD THAT THE 1955 DECREE
AFFIRMATIVELY SANCTIONED THE USE OF THE CONTRACT PROVISION, AND THEN
WENT ON TO MODIFY THE DECREE, INVALIDATING THAT PORTION OF THE DECREE
WHICH PERMITTED COLUMBIA TO INCLUDE THE PROVISION AT ISSUE IN ITS
CONTRACTS.  THE DISTRICT JUDGE STATED IN HIS ORIGINAL OPINION: 

"THE SCHEME OF THE CONCERT SERVICE BUSINESS CONDUCTED BY COMMUNITY
AND THE CIVIC DIVISION OF SUMMY-BIRCHARD WHICH IS EMBODIED IN THE
DECREE CLEARLY ENVISIONS THAT THE ARTIST OR HIS MANAGER WILL BE ABLE TO
CONTROL THE ULTIMATE PRICE PAID BY THE 'CONSUMER' - AUDIENCE
ASSOCIATION, IMPRESARIO, OR WHOEVER ASSUMES THE RISK OF 'PRODUCING' A
SHOW.  WERE THIS NOT SO, THE DEFINITION OF 'MARGIN' IN THE DECREE WOULD
BE MEANINGLESS.  SINCE THIS COURT BY ITS DECREE - ALBEIT A CONSENT
ORDER - HAS SANCTIONED PRO TANTO THIS STRUCTURING OF THE INDUSTRY, IT
SHOULD NOT BE SLOW TO CONSIDER CHARGES OF ILLEGALITY AGAINST THE
SYSTEM." 

THE DISTRICT JUDGE SUGGESTED THAT SUMMY-BIRCHARD'S ANSWER MIGHT BE
TREATED AS A "PETITION FOR DECLARATORY JUDGMENT" OR A "PETITION FOR
MODIFICATION."  AFTER DISCUSSING WHETHER OR NOT THE CONTRACT PROVISION
CONSTITUTED RESALE PRICE MAINTENANCE, HE CONCLUDED BY STATING: 

"THUS, INSOFAR AS THE DECREE-IMPOSED REQUIREMENT OF MARGIN OPERATES
TO ALLOW COLUMBIA TO SET RESALE PRICES, THE DECREE IS ILLEGAL AND VOID
AS CONTRARY TO THE LETTER AND POLICY OF THE SHERMAN ACT, AND THIS COURT
WILL NOT CONSTRUE COLUMBIA'S CONTINUED RELIANCE UPON THAT PORTION OF
THE DECREE TO BE IN ANY WAY VALID." 

THE DISTRICT JUDGE CHARACTERIZED WHAT HE HAD DONE AS "INVALIDATION OF
...  PART OF THE CONSENT DECREE."  THE DISTRICT COURT'S OPINION ON
REHEARING STATES, "THE OPINION OF NOVEMBER 19 IS ACCORDINGLY
REAFFIRMED," AND THE JUDGMENT OF THE DISTRICT COURT, SET OUT ABOVE,
STATES THAT "TO THE EXTENT THAT THE FINAL JUDGMENT OPERATES TO ALLOW
COLUMBIA TO SET SUCH RESALE PRICES, IT IS ILLEGAL AND VOID AS CONTRARY
TO THE SHERMAN ACT."  IN OUR VIEW THE LANGUAGE OF THE OPINION AND
JUDGMENT OF THE DISTRICT COURT CONCLUSIVELY SHOWS THAT THE COURT
MODIFIED THE 1955 CONSENT DECREE DESPITE COLUMBIA'S OPPOSITION TO SUCH
MODIFICATION. 

WE BELIEVE THAT THE MODIFICATION OF A PREVIOUSLY ENTERED CONSENT
DECREE UNDER THE CIRCUMSTANCES PRESENT HERE RAISES SUBSTANTIAL
QUESTIONS OF LAW.  THIS COURT HAS HELD THAT A CONSENT DECREE ORDINARILY
MAY NOT BE MODIFIED WITHOUT THE CONSENT OF THE PARTIES INVOLVED.  IN
UNITED STATES V. SWIFT & CO., 286 U.S. 106, 119, MR. JUSTICE CARDOZO
STATED FOR THE COURT:  "NOTHING LESS THAN A CLEAR SHOWING OF GRIEVOUS
WRONG EVOKED BY NEW AND UNFORESEEN CONDITIONS SHOULD LEAD US TO CHANGE
WHAT WAS DECREED AFTER YEARS OF LITIGATION WITH THE CONSENT OF ALL
CONCERNED."  SEE UNITED STATES V. INTERNATIONAL HARVESTER CO., 274 U.S.
693; FORD MOTOR CO. V. UNITED STATES, 335 U.S. 303.  WHILE THE COURT
HAS ALLOWED MODIFICATIONS IN CONSENT DECREES UPON OCCASION, SEE
CHRYSLER CORP. V. UNITED STATES, 316 U.S. 556; CF.  HUGHES V. UNITED
STATES, 342 U.S. 353, A SHOWING OF CHANGED CIRCUMSTANCES IS USUALLY
NECESSARY.  WHETHER A MODIFICATION OF THE CONSENT DECREE WAS PROPER IN
THIS CASE, WHERE NO CHANGED CIRCUMSTANCES WERE CLAIMED, SHOULD NOT BE
DETERMINED BY THIS COURT SUMMARILY.  ADDITIONALLY, THE DISTRICT COURT'S
DETERMINATION THAT COLUMBIA'S CONTRACT PROVISION CONSTITUTES RESALE
PRICE MAINTENANCE PROHIBITED BY THE SHERMAN ACT, 26 STAT. 209, RAISES
SUBSTANTIAL ISSUES OF ANTITRUST LAW WHICH WE BELIEVE ALSO OUGHT TO BE
BRIEFED AND ARGUED. 

                                       II. 

APART FROM WHAT HAS ALREADY BEEN SAID, THERE IS ANOTHER REASON WHY
THIS CASE SHOULD NOT BE DEALT WITH SUMMARILY.  IF THE DISTRICT COURT'S
ACTION IS NOT VIEWED AS A MODIFICATION OF THE DECREE, BUT RATHER AS A
DETERMINATION THAT THE DECREE NEITHER SPECIFICALLY SANCTIONED NOR
PROHIBITED COLUMBIA'S CONTRACT PROVISION, THE COURT'S JUDGMENT MUST BE
VIEWED AS A DECLARATORY JUDGMENT THAT COLUMBIA'S CONDUCT VIOLATED THE
SHERMAN ACT.  IN THAT EVENT NO APPEAL LIES TO THIS COURT, FOR THE
EXPEDITING ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C.  SEC 29, ALLOWS
DIRECT APPEALS TO THIS COURT ONLY IN CIVIL ACTIONS "WHEREIN THE UNITED
STATES IS COMPLAINANT."  IF APPELLANT IS APPEALING FROM A DECLARATORY
JUDGMENT, THIS CASE SHOULD BE TRANSFERRED TO THE COURT OF APPEALS FOR
THE SECOND CIRCUIT.  IF THE COURT IS HOLDING BY ITS ACTION THAT THE
CASE IS PROPERLY HERE BECAUSE OF THE FACT THAT THE 1955 ACTION WAS
COMMENCED BY THE GOVERNMENT, THEN THE CASE RAISES SUBSTANTIAL QUESTIONS
AS TO THE SCOPE OF THE EXPEDITING ACT WHICH SHOULD BE RESOLVED ONLY
AFTER PLENARY CONSIDERATION.  SEE SHENANDOAH VALLEY BROADCASTING, INC.
V. ASCAP, 375 U.S. 39. 

WE WOULD THEREFORE "POSTPONE JURISDICTION" AND SET THE CASE FOR
ARGUMENT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














BAXA V. UNITED STATES 381 U.S. 353 


NO. 957.  DECIDED MAY 24, 1965.  - CERTIORARI GRANTED, JUDGMENT VACATED
AND CASE REMANDED.  REPORTED BELOW:  340 F.2D 259. 


BAXA ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  ON CONSIDERATION OF
THE CONFESSION OF ERROR BY THE SOLICITOR GENERAL AND UPON EXAMINATION
OF THE ENTIRE RECORD, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED
TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
ILLINOIS FOR A NEW TRIAL. 
..END :













SAMARA V. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY 381 U.S. 354 


NO. 1002.  DECIDED MAY 24, 1965.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  REPORTED BELOW:  398 P.2D 89. 


SAMARA ET AL. V. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BILLY V. OKLAHOMA 381 U.S. 354 


NO. 1034.  DECIDED MAY 24, 1965.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  REPORTED BELOW:  397 P.2D 913. 


BILLY V. OKLAHOMA. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF OKLAHOMA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WALKER V. GEORGIA 381 U.S. 355 


NO. 1072.  DECIDED MAY 24, 1965.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW: 220 GA. 415, 139 S.E.2D 278. 


WALKER V. GEORGIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  HAMM V. CITY OF ROCK HILL AND LUPPER V. ARKANSAS, 379 U.S.
306. 

MR. JUSTICE STEWART WOULD VACATE THE JUDGMENT AND REMAND THE CASE TO
THE SUPREME COURT OF GEORGIA FOR RECONSIDERATION IN THE LIGHT OF
SUPERVENING FEDERAL LEGISLATION, IN ACCORDANCE WITH THE VIEWS EXPRESSED
IN HIS DISSENTING OPINION IN HAMM V. CITY OF ROCK HILL, 379 U.S. 306,
326. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE WHITE WOULD
AFFIRM THE JUDGMENT OF THE SUPREME COURT OF GEORGIA FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN HAMM V. CITY OF ROCK HILL, 379
U.S. 306, 318, 322, 327. 
..END :





MCLEOD V. OHIO 381 U.S. 356 


NO. 1117, MISC.  DECIDED MAY 24, 1965.  - CERTIORARI GRANTED AND
JUDGMENT REVERSED - REPORTED BELOW: 1 OHIO ST. 2D 60, 203 N.E.2D 349. 


MCLEOD V. OHIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED.  MASSIAH
V. UNITED STATES, 377 U.S. 201. 
..END :
















HOLT V. VIRGINIA 381 U.S. 131 


NO. 464.  ARGUED APRIL 27-28, 1965.  - DECIDED MAY 17, 1965.  - 205 VA.
332, 136 S.E.2D 809, REVERSED AND REMANDED. 


A STATE JUDGE DENIED A MOTION OF PETITIONER DAWLEY THAT THE JUDGE
DISQUALIFY HIMSELF FOR BIAS FROM TRYING DAWLEY FOR CONTEMPT ARISING OUT
OF HIS CONDUCT AS A LAWYER IN HANDLING A LIBEL CASE PENDING IN THAT
JUDGE'S COURT.  IN ARGUING A SUBSEQUENT CHANGE OF VENUE MOTION WHICH
DAWLEY FILED, ANOTHER LAWYER, PETITIONER HOLT, READ TO THE JUDGE THAT
MOTION, WHICH CHARGED THE JUDGE WITH "ACTING AS POLICE OFFICER, CHIEF
PROSECUTION WITNESS  ...  GRAND JURY, CHIEF PROSECUTOR AND JUDGE" WITH
RESPECT TO THE CONTEMPT CASE AGAINST DAWLEY AND WITH INTIMIDATING AND
HARASSING HOLT IN HIS EFFORTS TO DEFEND DAWLEY.  THE JUDGE THEN
SUMMARILY ADJUDGED BOTH PETITIONERS IN CONTEMPT FOR THE CHANGE OF VENUE
PLEA, WHICH HE DENIED, AND FOR THE SUPPORTING ARGUMENT AND LATER FINED
EACH $50.  THE STATE'S HIGHEST COURT AFFIRMED, HOLDING THAT THE
LANGUAGE USED IN THE MOTION VIOLATED A STATE STATUTE AUTHORIZING
SUMMARY CONTEMPT PUNISHMENT FOR USE OF "VILE, CONTEMPTUOUS OR INSULTING
LANGUAGE" CONCERNING A JUDGE'S OFFICIAL ACTS.  HELD:  PETITIONERS WERE
DEPRIVED OF THEIR RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT FOR DOING NO MORE THAN EXERCISING THE CONSTITUTIONAL RIGHT OF
AN ACCUSED AND HIS COUNSEL TO DEFEND AGAINST THE CONTEMPT CHARGES MADE
AGAINST THEM.  PP. 136-138. 

(A)  A DEFENDANT CHARGED WITH CONTEMPT SUCH AS THIS HAS THE
CONSTITUTIONAL RIGHT TO BE HEARD AND TO BE REPRESENTED BY COUNSEL, WHO
ALSO HAS A CONSTITUTIONAL RIGHT TO PRESENT HIS CLIENT'S CASE.  P. 136. 

(B)  THE MOTION FOR CHANGE OF VENUE TO ESCAPE A BIASED TRIBUNAL
RAISED A RELEVANT ISSUE.  P. 136. 

(C)  THE ASSERTEDLY "INSULTING" CHARACTER OF THE CHARGES IN THE
MOTIONS WAS INHERENT IN THE ISSUE OF BIAS RAISED.  P. 137. 

HOLT ET AL. V. VIRGINIA. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS, BOTH OF WHOM ARE LAWYERS, WERE ADJUDGED GUILTY AND
EACH WAS FINED $50 FOR CONTEMPT OF COURT BY THE CIRCUIT COURT OF THE
CITY OF HOPEWELL, VIRGINIA.  THE VIRGINIA SUPREME COURT OF APPEALS
AFFIRMED, REJECTING PETITIONERS' CONTENTIONS THAT THEIR CONVICTIONS
VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  205 VA.
332, 136 S.E.2D 809.  WE GRANTED CERTIORARI.  379 U.S. 957. 

THE CHARGES AGAINST PETITIONERS CAME ABOUT IN THIS WAY.  PETITIONER
DAWLEY REPRESENTED CERTAIN DEFENDANTS IN A LIBEL SUIT PENDING BEFORE
CIRCUIT JUDGE HOLLADAY.  THE LIBEL CASE WAS DISMISSED BY AGREEMENT OF
THE PARTIES.  AFTER THE DISMISSAL JUDGE HOLLADAY HAD THE COURT CLERK
AND COUNSEL, INCLUDING THE PETITIONER DAWLEY, COME INTO THE JUDGE'S
CHAMBERS AND THERE THE JUDGE ASKED DAWLEY THREE TIMES IF HE HAD HAD
ANYTHING TO DO WITH MAKING THE DEFENDANTS IN THE LIBEL CASE
"UNAVAILABLE TO BE SERVED WITH SUBPOENAS."  DAWLEY REFUSED TO ANSWER
AND LATER, IN COURT, AGAIN REFUSED TO ANSWER.  JUDGE HOLLADAY THEN
DIRECTED THE COMMONWEALTH'S ATTORNEY TO PREPARE AN ORDER DIRECTING
DAWLEY TO SHOW CAUSE WHY HE SHOULD NOT BE PUNISHED FOR CONTEMPT. 
DAWLEY THEREAFTER FILED A MOTION REQUESTING JUDGE HOLLADAY TO
DISQUALIFY HIMSELF FROM TRYING THE CONTEMPT CASE.  JUDGE HOLLADAY
DENIED THIS MOTION.  DAWLEY THEN FILED A MOTION FOR CHANGE OF VENUE. 
PETITIONER HOLT APPEARED AS COUNSEL REPRESENTING DAWLEY AND READ THIS
MOTION TO THE JUDGE AS A PART OF HIS ARGUMENT URGING A CHANGE OF
VENUE.  IT IS UPON THE ALLEGATIONS ABOUT JUDGE HOLLADAY IN THAT MOTION
AND THE READING OF THEM BY HOLT THAT THE PRESENT CONVICTIONS FOR
CONTEMPT ARE BASED. 

THE MOTION FOR CHANGE OF VENUE CHARGED, AMONG OTHER THINGS, THAT
BECAUSE OF LOCAL PREJUDICE DAWLEY COULD NOT GET A FAIR TRIAL IN
HOPEWELL AND, CRUCIAL TO THIS CONTEMPT CONVICTION: 

"3.  THAT THE SAID JUDGE CARLTON E. HOLLADAY, WHO PRESIDED AS JUDGE
IN SAID LIBEL SUIT, AND WHO FAILS AND REFUSES TO DISQUALIFY HIMSELF AS
JUDGE IN THE PENDING TRIAL OF THE DEFENDANT, E.A. DAWLEY, JR., HAS,
WITH RESPECT TO SAID CONTEMPT ACTION AND IS NOW IN EFFECT AND/OR IN
FACT ACTING AS POLICE OFFICER, CHIEF PROSECUTION WITNESS, ADVERSE
WITNESS FOR THE DEFENSE, GRAND JURY, CHIEF PROSECUTOR AND JUDGE. 

"4.  THAT IN ADDITION TO THE FOREGOING, SAID JUDGE CARLTON E.
HOLLADAY DID INTIMIDATE AND HARASS AND IS INTIMIDATING AND HARASSING
THE LAWYER REPRESENTING SAID E.A. DAWLEY, JR., VIZ, LEONARD W. HOLT,
ESQ., THE EFFECT OF WHICH IS TO SERIOUSLY HAMPER THE EFFORTS OF SAID
LEONARD W. HOLT IN DEFENDING THE SAID E.A. DAWLEY, JR.; THAT SAID
HARASSMENT AND INTIMIDATION ARISES OUT OF AND IS CONNECTED SOLELY WITH
SAID LEONARD W. HOLT'S PARTICIPATING IN THE DEFENSE OF SAID E.A.
DAWLEY, JR. IN THE CONTEMPT ACTION; THAT PART OF SAID HARASSMENT AND
INTIMIDATION OCCURRED AT A HEARING OF THIS CONTEMPT ACTION IN THE
HOPEWELL CIRCUIT COURT ON JANUARY 8, 1962, AT WHICH HEARING THE SAID
CARLTON E. HOLLADAY REVEALED THAT HE HAD BEEN MAKING AN INDEPENDENT
INVESTIGATION AND INQUIRY OF MR. HOLT'S CONDUCT IN THIS CONTEMPT
DEFENSE, AND SAID JUDGE AT SAID PLACE AND TIME MADE THE STATEMENT THAT
HE WOULD 'DEAL WITH' SAID LEONARD W. HOLT AFTER HE, THE JUDGE, HAD
DEALT WITH SAID E.A. DAWLEY, JR." 

AFTER THESE CHARGES WERE READ TO JUDGE HOLLADAY BY HOLT, THIS
COLLOQUY TOOK PLACE: 

"THE COURT: ON THE MOTION FOR CHANGE OF VENUE, DOES THAT APPLY
WHETHER YOUR CLIENT WOULD BE TRIED BEFORE A JURY OR BEFORE THE COURT? 
DOES IT APPLY IN BOTH CASES? 

"MR. HOLT:  WE SAY IT WOULD APPLY. 

"THE COURT:  APPLY IN BOTH CASES. 

"AT THIS TIME I MIGHT SAY THAT I DO NOT SEE HOW THAT THIS COURT CAN
PASS UNNOTICED THE MATTERS AND THINGS THAT HAVE BEEN PRESENTED TO THE
COURT BY MR. DAWLEY IN A PLEA FILED IN THE COURT AND PRESENTED HERE IN
COURT AND BY MR. HOLT AS HIS COUNSEL AND ARGUED IN COURT.  I THINK THAT
THE PLEA IS CONTEMPTUOUS, I THINK THE ARGUMENT IS CONTEMPTUOUS. 

"AT THIS TIME BOTH E.A. DAWLEY, JR., AND LEONARD W. HOLT ARE HELD AND
ADJUDGED SUMMARILY TO BE IN CONTEMPT OF THIS COURT. 

"I WILL TAKE UNDER ADVISEMENT THE PUNISHMENT AND ADVISE YOU OF IT
DURING THE DAY. 

"COURT WILL ADJOURN FOR LUNCH. 

"MR. HOLT:  PLEASE, BEFORE THE COURT ADJOURNS, MAY WE GET THE
SPECIFICITY ON THE PART OF THE COURT REGARDING WHAT IS CONSIDERED IN
THE PLEADING, IF ANYTHING, CONTEMPTUOUS?  I THINK UNDER THE LAWS OF THE
COMMONWEALTH AND UNITED STATES WE ARE IN THIS POSITION - THAT IF
SOMETHING HAS BEEN SAID WHICH IS CONTEMPTUOUS, THERE BE ELEMENTS OF
INTENT THAT SHOULD BE PRESENT, AND IF THE ELEMENT OF INTENT BE PRESENT,
AND THERE ARE CERTAIN THINGS WHICH FLOW UNDER IT IN TERMS: 

"THE COURT:  I DON'T THINK THAT YOU NEED ANY SPECIFICATION OR BILL OF
PARTICULARS ON THAT.  I THINK THAT YOU CAN READ IT, MR. DAWLEY CAN READ
IT, AND I THINK IT IS PLAIN TO THE PEOPLE WHO ARE IN THE COURTROOM THAT
THE REMARKS ARE CONTEMPTUOUS, AND YOU SUMMARILY HAVE BEEN HELD IN
CONTEMPT OF COURT. 

"AND COURT STANDS ADJOURNED AT THIS TIME FOR LUNCH." 

THEREAFTER THE JUDGE DENIED THE MOTION FOR CHANGE OF VENUE AND FINED
EACH PETITIONER $50. 

THE VIRGINIA SUPREME COURT OF APPEALS, IN AFFIRMING, HELD THAT THE
LANGUAGE USED IN THE MOTION VIOLATED VA. CODE ANN. SEC. 18.1-292 (1960
REPL.  VOL.), WHICH AUTHORIZES SUMMARY PUNISHMENT OF A PERSON WHO
MISBEHAVES IN THE PRESENCE OF THE COURT SO AS TO OBSTRUCT JUSTICE, OR
WHO USES "VILE, CONTEMPTUOUS OR INSULTING LANGUAGE" TO OR ABOUT A JUDGE
IN RESPECT OF HIS OFFICIAL ACTS.  (FN1) PETITIONERS CONTEND THAT THEIR
CONVICTIONS THROUGH THIS APPLICATION OF THE STATE LAW TO THEM IN
SEVERAL RESPECTS DENY DUE PROCESS OF LAW GUARANTEED BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  THE VIEW WE TAKE REGARDING ONE OF
THESE CONTENTIONS MAKES IT UNNECESSARY FOR US TO CONSIDER THE OTHERS. 
(FN2) 

IT IS NOT CHARGED THAT PETITIONERS HERE DISOBEYED ANY VALID COURT
ORDER, TALKED LOUDLY, ACTED BOISTEROUSLY, OR ATTEMPTED TO PREVENT THE
JUDGE OR ANY OTHER OFFICER OF THE COURT FROM CARRYING ON HIS COURT
DUTIES.  THEIR CONVICTIONS REST ON NOTHING WHATEVER EXCEPT ALLEGATIONS
MADE IN MOTIONS FOR CHANGE OF VENUE AND DISQUALIFICATION OF JUDGE
HOLLADAY BECAUSE OF ALLEGED BIAS ON HIS PART.  IT IS NOT CLAIMED, AND
PROBABLY COULD NOT SERIOUSLY BE CLAIMED, THAT PETITIONERS, BY FILING
THEIR MOTIONS, VIOLATED ANY DUTY THEY OWED THE COURT.  DAWLEY HAD BEEN
ORDERED BY THE JUDGE TO APPEAR TO DEFEND HIMSELF AGAINST A CHARGE OF
CONTEMPT AND HOLT APPEARED AS HIS COUNSEL.  AND IT IS SETTLED THAT DUE
PROCESS AND THE SIXTH AMENDMENT GUARANTEE A DEFENDANT CHARGED WITH
CONTEMPT SUCH AS THIS "AN OPPORTUNITY TO BE HEARD IN HIS DEFENSE - A
RIGHT TO HIS DAY IN COURT -   ...  AND TO BE REPRESENTED BY COUNSEL." 
IN RE OLIVER, 333 U.S. 257, 273.  SEE ALSO GIDEON V. WAINWRIGHT, 372
U.S. 335.  THE RIGHT TO BE HEARD MUST NECESSARILY EMBODY A RIGHT TO
FILE MOTIONS AND PLEADINGS ESSENTIAL TO PRESENT CLAIMS AND RAISE
RELEVANT ISSUES.  SEE WILLNER V. COMMITTEE ON CHARACTER AND FITNESS,
373 U.S. 96, 105.  AND SINCE "A FAIR TRIAL IN A FAIR TRIBUNAL IS A
BASIC REQUIREMENT OF DUE PROCESS," IN RE MURCHISON, 349 U.S. 133, 136,
IT NECESSARILY FOLLOWS THAT MOTIONS FOR CHANGE OF VENUE TO ESCAPE A
BIASED TRIBUNAL RAISE CONSTITUTIONAL ISSUES BOTH RELEVANT AND
ESSENTIAL.  CF. IRVIN V. DOWD, 366 U.S. 717, 722; TUMEY V. OHIO, 273
U.S. 510.  CONSEQUENTLY, NEITHER DAWLEY NOR HIS COUNSEL COULD
CONSISTENTLY WITH DUE PROCESS BE CONVICTED FOR CONTEMPT FOR FILING
THESE MOTIONS UNLESS IT MIGHT BE THOUGHT THAT THERE IS SOMETHING ABOUT
THE LANGUAGE USED WHICH WOULD JUSTIFY THE CONVICTION. 

AS PREVIOUSLY STATED, THE WORDS USED IN THE MOTIONS WERE PLAIN
ENGLISH, IN NO WAY OFFENSIVE IN THEMSELVES, AND WHOLLY APPROPRIATE TO
CHARGE BIAS IN THE COMMUNITY AND BIAS OF THE PRESIDING JUDGE.  THE
SUPREME COURT OF APPEALS OF VIRGINIA CONSIDERED THE MOTION FOR CHANGE
OF VENUE "A VEHICLE TO HEAP INSULTS UPON THE COURT, A STUDIED ATTEMPT
TO SMEAR THE JUDGE."  205 VA., AT 338, 136 S.E.2D, AT 814.  BUT IF THE
CHARGES WERE "INSULTING" IT WAS INHERENT IN THE ISSUE OF BIAS RIASED,
AN ISSUE WHICH WE HAVE SEEN HAD TO BE RAISED, ACCORDING TO THE CHARGES,
TO ESCAPE THE PROBABILITY OF A CONSTITUTIONALLY UNFAIR TRIAL.  VIRGINIA
APPARENTLY CONTENDS HERE THAT THE RIGHT TO PRESENT A DEFENSE IS NOT
INVOLVED IN THIS CASE EITHER (1) BECAUSE THE MOTION FOR CHANGE OF VENUE
WAS NOT IN THE PROPER FORM AND NOT AUTHORIZED BY STATE LAW IN SUCH
CIRCUMSTANCES, OR (2) BECAUSE THE CHARGES OF BIAS WERE FALSE.  AS TO
THE FIRST ARGUMENT, ASSUMING IT COULD HAVE ANY RELEVANCE WHERE A
DEFENDANT ASSERTS A FEDERALLY GUARANTEED RIGHT TO A FAIR TRIAL, THE
MOTION FOR CHANGE OF VENUE WAS DULY FILED WITH THE CLERK, AND THE TRIAL
COURT WITHOUT OBJECTION SET IT DOWN FOR HEARING, SPECIFICALLY INVITED
ARGUMENTS ON IT, AND DECIDED THE MOTION ON THE MERITS, WITHOUT ANY
INTIMATION THAT A MOTION FOR CHANGE OF VENUE WAS NOT PROPER IN THESE
CIRCUMSTANCES.  NOR CAN WE ACCEPT VIRGINIA'S APPARENT CONTENTION THAT
THE CONTEMPT CONVICTIONS SHOULD BE SUSTAINED ON THE GROUND THAT
PETITIONERS' CHARGES OF BIAS WERE FALSE.  THE ISSUE OF TRUTH OR FALSITY
OF THESE CHARGES WAS NOT HEARD, THE TRIAL COURT CHOOSING INSTEAD TO
CONVICT AND SENTENCE PETITIONERS FOR HAVING DONE NOTHING MORE THAN MAKE
THE CHARGES.  EVEN IF FAILURE TO PROVE THEIR ALLEGATIONS OF BIAS COULD
UNDER ANY CIRCUMSTANCES EVER BE MADE PART OF THE BASIS OF A CONTEMPT
CHARGE AGAINST PETITIONERS, THESE CONVICTIONS CANNOT REST ON ANY SUCH
UNPROVEN ASSUMPTION. 

OUR CONCLUSION IS THAT THESE PETITIONERS HAVE BEEN PUNISHED BY
VIRGINIA FOR DOING NOTHING MORE THAN EXERCISING THE CONSTITUTIONAL
RIGHT OF AN ACCUSED AND HIS COUNSEL IN CONTEMPT CASES SUCH AS THIS TO
DEFEND AGAINST THE CHARGES MADE.  THE JUDGMENT OF CONVICTION IS
REVERSED AND THE CAUSE IS REMANDED TO THE SUPREME COURT OF APPEALS OF
VIRGINIA FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  "THE COURTS AND JUDGES MAY ISSUE ATTACHMENTS FOR CONTEMPT, AND
PUNISH THEM SUMMARILY, ONLY IN THE CASES FOLLOWING: 

"(1)  MISBEHAVIOR IN THE PRESENCE OF THE COURT, OR SO NEAR THERETO AS
TO OBSTRUCT OR INTERRUPT THE ADMINISTRATION OF JUSTICE: 

"(2)  VIOLENCE, OR THREATS OF VIOLENCE, TO A JUDGE OR OFFICER OF THE
COURT, OR TO A JUROR, WITNESS OR PARTY GOING TO, ATTENDING OR RETURNING
FROM THE COURT, FOR OR IN RESPECT OF ANY ACT OR PROCEEDING HAD OR TO BE
HAD IN SUCH COURT: 

"(3)  VILE, CONTEMPTUOUS OR INSULTING LANGUAGE ADDRESSED TO OR
PUBLISHED OF A JUDGE FOR OR IN RESPECT OF ANY ACT OR PROCEEDING HAD, OR
TO BE HAD, IN SUCH COURT, OR LIKE LANGUAGE USED IN HIS PRESENCE AND
INTENDED FOR HIS HEARING FOR OR IN RESPECT OF SUCH ACT OR PROCEEDING: 

"(4)  MISBEHAVIOR OF AN OFFICER OF THE COURT IN HIS OFFICIAL
CHARACTER: 

"(5)  DISOBEDIENCE OR RESISTANCE OF AN OFFICER OF THE COURT, JUROR,
WITNESS OR OTHER PERSON TO ANY LAWFUL PROCESS, JUDGMENT, DECREE OR
ORDER OF THE COURT."  VA. CODE ANN. SEC. 18.1-292 (1960 REPL.  VOL.). 

FN2  WE NEITHER REACH NOR CONSIDER THE QUESTIONS WHETHER THE SUMMARY
CONVICTIONS OF BOTH DAWLEY AND HOLT WERE INVALID BECAUSE THEIR ALLEGED
MISCONDUCT DID NOT DISTURB THE COURT'S BUSINESS OR THREATEN
DEMORALIZATION OF ITS AUTHORITY, CF. IN RE OLIVER, 333 U.S. 257, 277
278, WHETHER SUMMARY CONVICTION OF DAWLEY WAS INVALID BECAUSE HE
COMMITTED NO ACT IN OPEN COURT, AND WHETHER JUDGE HOLLADAY WAS SO
PERSONALLY EMBROILED AND INTERESTED IN THE CONTROVERSY THAT HE SHOULD
NOT HAVE DECIDED THE CONTEMPT ISSUE. 

MR. JUSTICE HARLAN, DISSENTING. 

THE VIRGINIA SUPREME COURT OF APPEALS HAS IN EFFECT HELD THAT THE
MANNER IN WHICH PETITIONERS PRESENTED THEIR MOTION FOR A CHANGE OF
VENUE VIOLATED PROFESSIONAL STANDARDS GOVERNING MEMBERS OF THE VIRGINIA
BAR.  THIS COURT NOW SETS ASIDE THE TRIVIAL DISCIPLINARY PENALTY
IMPOSED SIMPLY BECAUSE IN ITS VIEW PETITIONERS' CONDUCT WAS NOT OUT OF
BOUNDS.  BELIEVING THAT ANY DIFFERENCES OVER THE PROFESSIONAL PROPRIETY
OF PETITIONERS' ACTIONS INVOLVE NOTHING OF CONSTITUTIONAL PROPORTIONS,
I WOULD AFFIRM THE JUDGEMNT OF THE VIRGINIA SUPREME COURT OF APPEALS.* 

*I DO NOT THINK THAT ANY OF THE OTHER CONTENTIONS NOT REACHED BY THIS
COURT CAN BE SAID, ON THIS RECORD, TO PRESENT A SUBSTANTIAL FEDERAL
QUESTION (ANTE, PP. 135-136, N. 2). 
..END :










UNITED STATES V. CALIFORNIA 381 U.S. 139 


NO. 5, ORIGINAL.  ARGUED DECEMBER 7-8, 1964.  - DECIDED MAY 17, 1965.  -
SPECIAL MASTER'S REPORT APPROVED AS MODIFIED. 


THE UNITED STATES BROUGHT THIS SUIT IN 1945 AGAINST CALIFORNIA TO
DETERMINE DOMINION OVER THE SUBMERGED LANDS AND MINERAL RIGHTS UNDER
THE THREE-MILE BELT OF SEA OFF THE CALIFORNIA COAST.  IN 1947 THIS
COURT HELD (332 U.S. 19) THAT THE UNITED STATES POSSESSED PARAMOUNT
RIGHTS IN SUCH LANDS AND MINERALS UNDERLYING THE PACIFIC OCEAN SEAWARD
OF THE LAW-WATER MARK ON THE CALIFORNIA COAST AND OUTSIDE OF INLAND
WATERS.  THEREAFTER THE COURT APPOINTED A SPECIAL MASTER TO DETERMINE
FOR SPECIFIC COASTAL SEGMENTS THE LINE OF ORDINARY LOW WATER AND THE
OUTER LIMIT OF INLAND WATERS.  IN HIS REPORT, FILED IN 1952, THE MASTER
BASED HIS DEFINITION OF INLAND WATERS ON THAT APPLIED BY THE UNITED
STATES IN ITS FOREIGN RELATIONS AS OF THE DATE OF THE 1947 DECREE. 
BOTH PARTIES NOTED EXCEPTIONS TO THE REPORT, BUT BEFORE ANY FURTHER
ACTION, THE SUBMERGED LANDS ACT WAS ENACTED IN 1953.  THIS ACT GAVE THE
STATES OWNERSHIP OF THE LANDS BENEATH NAVIGABLE WATERS WITHIN THEIR
BOUNDARIES, INCLUDING THE SEAWARD BOUNDARIES "AS THEY EXISTED AT THE
TIME SUCH STATE BECAME A MEMBER OF THE UNION," BUT IN NO EVENT TO BE
INTERPRETED AS EXTENDING FROM THE "COAST LINE" MORE THAN THREE
GEOGRAPHICAL MILES INTO THE PACIFIC OCEAN.  "COAST LINE" WAS
DERIVATIVELY DEFINED IN TERMS OF THE SEAWARD LIMIT OF "INLAND WATERS,"
A TERM NOT DEFINED BY THE ACT.  NO ACTION WAS TAKEN ON THE MASTER'S
REPORT UNTIL 1963, WHEN THE UNITED STATES FILED AN AMENDED COMPLAINT
REVIVING THE REPORT AND REDESCRIBING THE ISSUES AS MODIFIED BY THE
SUBMERGED LANDS ACT.  THE UNITED STATES CONTENDS THAT THE ACT SIMPLY
MOVED THE LINE OUT THREE MILES FROM THE LINE ESTABLISHED BY THE 1947
DECREE, WHILE CALIFORNIA ASSERTS THAT "INLAND WATERS" AS USED IN THE
ACT MEANS NOT WHAT THE UNITED STATES WOULD CLAIM AS SUCH IN
INTERNATIONAL RELATIONS BUT WHAT THE STATES HISTORICALLY CONSIDERED TO
BE INLAND WHEN THEY JOINED THE UNION.  HELD: 

1.  THE ACT'S LEGISLATIVE HISTORY SHOWS THAT "INLAND WATERS" WAS TO BE
DEFINED BY THE COURTS.  PP. 150-160. 

(A)  BY ELIMINATING THE DEFINITION OF INLAND WATERS FROM THE BILL
CONGRESS INTENDED TO LEAVE THE MEANING OF THE TERM TO THE COURTS,
INDEPENDENTLY OF THE ACT.  PP. 150-154. 

(B)  THE ADDITION OF THE THREE-MILE LIMITATION PROVISION TO THE BILL
SHOWS THAT CONGRESS MUST HAVE INTENDED THAT SOME CRITERION BE USED BY
THE COURTS OTHER THAN ONE DEPENDENT UPON A STATE'S SUBJECTIVE CONCEPT
OF ITS INLAND WATERS.   PP. 154-160. 

2.  THE DEFINITION OF INLAND WATERS, AS USED IN THE ACT, SHOULD
CONFORM TO THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS
ZONE.  PP. 161-167. 

(A)  WHILE THIS COURT DID NOT DEFINE INLAND WATERS IN THE 1947
OPINION IN THIS CASE, IT DID INDICATE THAT IT WAS TO HAVE AN
INTERNATIONAL CONTENT SINCE THE OUTER LIMITS OF SUCH WATERS WOULD
DETERMINE OUR INTERNATIONAL COASTLINE.  PP. 161-162. 

(B)  SUBSEQUENT TO THE SPECIAL MASTER'S REPORT, THIS COUNTRY RATIFIED
THE CONVENTION, WHICH IS NOW IN FORCE AND REPRESENTS THE POSITION OF
THE UNITED STATES.  PP. 163-164. 

(C)  THE ACT DOES NOT RESTRICT THE COURT TO THE TIME OF ENACTMENT IN
DETERMINING THE BEST AND MOST WORKABLE DEFINITION OF INLAND WATERS,
WHICH IS FOUND IN THE CONVENTION.  PP. 164-165. 

(D)  ADOPTING THE MEANING OF INLAND WATERS IN TERMS OF THE CONVENTION
DEFINITION, WITH A 24-MILE MAXIMUM CLOSING LINE FOR BAYS AND A
"SEMICIRCLE" TEST FOR THE SUFFICIENCY OF THE WATER AREA ENCLOSED, WILL
PROVIDE DEFINITENESS AND STABILITY TO THE RIGHTS GRANTED IN THE ACT. 
PP. 165-167. 

3.  ALTHOUGH THE CONVENTION PERMITS THE USE OF THE STRAIGHT-BASE-LINE
METHOD FOR ASCERTAINING INLAND WATERS CLAIMED AGAINST OTHER NATIONS,
THE CHOICE IS ONE THAT RESTS WITH THE UNITED STATES, WHICH IS
RESPONSIBLE FOR THE CONDUCT OF FOREIGN AFFAIRS, AND NOT WITH THE
INDIVIDUAL STATES.  MANCHESTER V. MASSACHUSETTS, 139 U.S. 240,
DISTINGUISHED.  PP. 167-169. 

4.  APPLYING THE CONVENTION'S 24-MILE CLOSING RULE AND THE
"SEMICIRCLE" TEST FOR CLASSIFYING BAYS, MONTEREY BAY IS INLAND WATER,
BUT NONE OF THE OTHER COASTAL SEGMENTS IN DISPUTE MEETS THE
REQUIREMENTS.  PP. 169-170. 

5.  CALIFORNIA'S ASSERTION THAT SANTA BARBARA CHANNEL MAY BE
CONSIDERED A "FICTITIOUS BAY" UNDER INTERNATIONAL LAW CANNOT FORCE THE
UNITED STATES, WHICH DISAGREES, TO TAKE SUCH A POSITION TO EXTEND OUR
INTERNATIONAL BOUNDARIES.  PP. 170-172. 

6.  THE EXCEPTION TO THE CONVENTION'S 24-MILE CLOSING RULE FOR
"HISTORIC" BAYS, THOSE OVER WHICH A NATION HAS TRADITIONALLY ASSERTED
AND MAINTAINED DOMINION, CANNOT BENEFIT CALIFORNIA UNLESS THE UNITED
STATES ENDORSES ITS CLAIMS OR THERE IS CLEAR HISTORIC EVIDENCE
SUPPORTING SUCH CLAIMS.  NONE OF THE DISPUTED WATER AREAS (NOT
CONSIDERING MONTEREY BAY WHICH IS COVERED BY THE 24-MILE RULE) IS AN
HISTORIC INLAND WATER OF THE UNITED STATES.  PP. 172-175. 

7.  OPEN ROADSTEADS USED FOR LOADING, UNLOADING AND ANCHORING SHIPS
ARE, PURSUANT TO THE CONVENTION, AREAS OF THE TERRITORIAL SEA AND ARE
THEREFORE NOT TO BE CONSIDERED INLAND WATERS.  P. 175. 

8.  THE AVERAGE OF THE LOWER OF THE TWO DAILY LOW TIDES SHOULD BE
USED IN DETERMINING THE ACT'S "LINE OF ORDINARY LOW WATER," RECOGNIZED
BY THE CONVENTION.  PP. 175-176. 

9.  THE SOVEREIGNTY OF THE STATES EXTENDS TO NEW LAND OBTAINED BY
ARTIFICIAL ACCRETION AS WELL AS NATURAL MODIFICATION OF THE SHORELINE. 
PP. 176-177. 

UNITED STATES V. CALIFORNIA. 

BILL IN EQUITY. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE PRESENT CASE REQUIRES US TO DETERMINE THE EXTENT OF SUBMERGED
LANDS GRANTED TO THE STATE OF CALIFORNIA BY THE SUBMERGED LANDS ACT OF
1953, (FN1) AND IN PARTICULAR TO DECLARE WHETHER SPECIFIED BODIES OF
WATER ON THE CALIFORNIA COAST ARE "INLAND WATERS" WITHIN THE MEANING OF
THAT ACT.  A SUBSTANTIAL AMOUNT OF BACKGROUND IS NECESSARY TO PLACE THE
ISSUES IN PERSPECTIVE. 

                          I.

 THE SETTING OF THE CASE. 

THIS IS A SUIT BEGUN IN 1945, BROUGHT BY THE UNITED STATES AGAINST
CALIFORNIA TO DETERMINE DOMINION OVER THE SUBMERGED LANDS AND MINERAL
RIGHTS UNDER THE THREE-MILE BELT OF SEA OFF THE COAST OF CALIFORNIA. 
IN 1947 THE COURT DECREED: 

"THE UNITED STATES OF AMERICA IS NOW, AND HAS BEEN AT ALL TIMES
PERTINENT HERETO, POSSESSED OF PARAMOUNT RIGHTS IN, AND FULL DOMINION
AND POWER OVER, THE LANDS, MINERALS AND OTHER THINGS UNDERLYING THE
PACIFIC OCEAN LYING SEAWARD OF THE ORDINARY LOW-WATER MARK ON THE COAST
OF CALIFORNIA, AND OUTSIDE OF THE INLAND WATERS, EXTENDING SEAWARD
THREE NAUTICAL MILES  ...  .  THE STATE OF CALIFORNIA HAS NO TITLE
THERETO OR PROPERTY INTEREST THEREIN."  UNITED STATES V. CALIFORNIA,
332 U.S. 804, 805, ORDER AND DECREE. 

AFTER THE ENTRY OF THIS DECREE, THE UNITED STATES ASKED THAT THE
LANDS AWARDED TO IT BE DEFINED IN GREATER DETAIL IN CERTAIN AREAS WHERE
THERE WAS SUBSTANTIAL OIL WELL ACTIVITY, AND WHICH CALIFORNIA ASSERTED
LAY WITHIN INLAND WATERS.  THE COURT APPOINTED A SPECIAL MASTER, (FN2)
AND DIRECTED HIM TO CONSIDER SEVEN SPECIFIED SEGMENTS OF THE CALIFORNIA
COAST (FN3) TO DETERMINE THE LINE OF ORDINARY LOW WATER AND THE OUTER
LIMIT OF INLAND WATERS.  THESE SEGMENTS INCLUDED VARIOUS BAYS, AND, AS
THE PROBLEM EVOLVED, THE SO-CALLED "OVERALL UNIT AREA" CONSISTING OF
THE WATERS INSIDE A LINE ENCOMPASSING THE ISLANDS OFF THE SHORE OF
SOUTHERN CALIFORNIA, SOME AS FAR AS 50 MILES OUT.  (FN4) THE SPECIAL
MASTER'S REPORT, GENERALLY FAVORING THE POSITION OF THE UNITED STATES,
WAS FILED WITH THIS COURT IN NOVEMBER 1952, 344 U.S. 872.  HE ADOPTED
AS HIS CRITERIA FOR DEFINING INLAND WATERS THOSE APPLIED BY THE UNITED
STATES IN THE CONDUCT OF ITS FOREIGN AFFAIRS AS OF THE DATE OF THE
CALIFORNIA DECREE, OCTOBER 27, 1947 - IN PARTICULAR, A RULE THAT ONLY A
BAY HAVING A CLOSING LINE ACROSS ITS MOUTH NO MORE THAN 10 MILES IN
LENGTH AND ENCLOSING A SUFFICIENT WATER AREA TO SATISFY THE SO-CALLED
BOGGS FORMULA (FN5) WOULD BE INLAND WATER, WITH THE QUALIFICATION THAT
A BAY WHICH HAD BEEN HISTORICALLY CONSIDERED INLAND WATER WOULD SO
CONTINUE.  (FN6)  BOTH PARTIES NOTED THEIR EXCEPTIONS TO THE REPORT,
BUT BEFORE ANY FURTHER ACTION WAS TAKEN, CONGRESS ENACTED THE SUBMERGED
LANDS ACT. 

THE SUBMERGED LANDS ACT (FN7) GRANTS TO THE STATES "TITLE TO AND
OWNERSHIP OF THE LANDS BENEATH NAVIGABLE WATERS WITHIN THE BOUNDARIES
OF THE RESPECTIVE STATES."  SEC. 3(A).  "BOUNDARIES" INCLUDES THE
SEAWARD BOUNDARIES OF A STATE "AS THEY EXISTED AT THE TIME SUCH STATE
BECAME A MEMBER OF THE UNION, OR AS HERETOFORE APPROVED BY THE
CONGRESS," BUT SUBJECT TO THE LIMITATION THAT: 

"IN NO EVENT SHALL THE TERM 'BOUNDARIES'  ...  BE INTERPRETED AS
EXTENDING FROM THE COAST LINE MORE THAN THREE GEOGRAPHICAL MILES INTO
THE ATLANTIC OCEAN OR THE PACIFIC OCEAN, OR MORE THAN THREE MARINE
LEAGUES INTO THE GULF OF MEXICO."  SEC. 2(B). 

"COAST LINE" IS THEN DEFINED AS THE COMPOSITE "LINE OF ORDINARY LOW
WATER ALONG THAT PORTION OF THE COAST WHICH IS IN DIRECT CONTACT WITH
THE OPEN SEA AND THE LINE MARKING THE SEAWARD LIMIT OF INLAND WATERS." 
SEC. 2(C).  FOR STATES HAVING NO PREVIOUSLY APPROVED SEAWARD BOUNDARIES
THE ACT PROVIDES THAT "ANY STATE ADMITTED SUBSEQUENT TO THE FORMATION
OF THE UNION WHICH HAS NOT ALREADY DONE SO MAY EXTEND ITS SEAWARD
BOUNDARIES TO A LINE THREE GEOGRAPHICAL MILES DISTANT FROM ITS COAST
LINE  ...  ."  SEC. 4. 

THUS THE ACT EFFECTIVELY GRANTS EACH STATE ON THE PACIFIC COAST ALL
SUBMERGED LANDS SHOREWARD OF A LINE THREE GEOGRAPHICAL MILES (FN8) FROM
ITS "COAST LINE," DERIVATIVELY DEFINED IN TERMS OF "THE SEAWARD LIMIT
OF INLAND WATERS."  "INLAND WATERS" IS NOT DEFINED BY THE ACT. 

IN A LATER MEASURE RELATED TO THE SUBMERGED LANDS ACT, CONGRESS
DECLARED THAT THE UNITED STATES OWNED ALL SUBMERGED LAND IN THE
CONTINENTAL SHELF SEAWARD OF THE LANDS GRANTED TO THE STATES.  OUTER
CONTINENTAL SHELF LANDS ACT, 67 STAT. 462, 43 U.S.C. SEC. 1331 ET SEQ. 

THE PASSAGE OF THE SUBMERGED LANDS ACT MARKED THE BEGINNING OF A LONG
HALT IN THE PROCEEDINGS IN THIS CASE.  DEPTH OF CALIFORNIA'S COASTAL
WATERS INCREASES VERY RAPIDLY, AND AS OF MAY 22, 1953, THE DATE OF
ENACTMENT, IT WAS IMPRACTICAL TO DRILL FOR OIL EXCEPT CLOSE TO THE
SHORE.  BY GRANTING TO CALIFORNIA THE MINERAL RIGHTS IN THE THREE-MILE
BELT, THE ACT VESTED IN CALIFORNIA ALL THE INTERESTS THAT WERE THEN
THOUGHT TO BE IMPORTANT, AND NO FURTHER ACTION WAS TAKEN ON THE SPECIAL
MASTER'S REPORT.  THAT REPORT WAS NEITHER ADOPTED, MODIFIED, NOR
REJECTED BY THIS COURT, BUT WAS SIMPLY ALLOWED TO LIE DORMANT.  BY
1963, HOWEVER, DRILLING TECHNIQUES HAD IMPROVED SUFFICIENTLY TO
REVITALIZE THE IMPORTANCE OF THE DEMARCATION LINE BETWEEN STATE AND
FEDERAL SUBMERGED LANDS.  THE UNITED STATES FILED AN AMENDED COMPLAINT
REVIVING THE SPECIAL MASTER'S REPORT AND REDESCRIBING THE ISSUES AS
MODIFIED BY THE SUBMERGED LANDS ACT; BOTH THE UNITED STATES AND
CALIFORNIA FILED NEW EXCEPTIONS TO THE REPORT, AND THE CASE IS NOW
READY FOR DECISION. 

THE BASIC CONTENTION OF THE UNITED STATES IS THAT THE ACT SIMPLY
MOVED THE LINE OF DEMARCATION OUT THREE MILES FROM THE LINE ESTABLISHED
BY THE CALIFORNIA DECREE.  THEREFORE, CONTENDS THE UNITED STATES, THE
SPECIAL MASTER'S REPORT ON THE LINE OF ORDINARY LOW WATER AND THE OUTER
LIMIT OF INLAND WATERS AS USED IN THE CALIFORNIA DECREE IS JUST AS
RELEVANT NOW AS IT WAS BEFORE CONGRESS ACTED, AND, WITH SLIGHT
MODIFICATIONS, THE LINE DRAWN BY THE SPECIAL MASTER SHOULD BE TAKEN AS
THE "COAST LINE" FOR PURPOSES OF THE SUBMERGED LANDS ACT.  CALIFORNIA
ASSERTS THAT WHEREAS THE SPECIAL MASTER DETERMINED INLAND WATERS TO BE
THOSE WHICH THE UNITED STATES WOULD HAVE CLAIMED AS SUCH FOR PURPOSES
OF INTERNATIONAL RELATIONS, THE SUBMERGED LANDS ACT USED THE TERM IN AN
ENTIRELY DIFFERENT SENSE TO MEAN THOSE WATERS WHICH THE STATES
HISTORICALLY CONSIDERED TO BE INLAND - IN CALIFORNIA'S CASE, THOSE
WATERS WHICH THE STATE CONSIDERED TO BE INLAND AT THE TIME IT ENTERED
THE UNION.  THEREFORE, ACCORDING TO CALIFORNIA, THE LINE DRAWN IN THE
SPECIAL MASTER'S REPORT WAS DETERMINED UNDER STANDARDS WHOLLY FOREIGN
TO THE SUBMERGED LANDS ACT. 

THE FOCAL POINT OF THIS CASE IS THE INTERPRETATION TO BE PLACED ON
"INLAND WATERS" AS USED IN THE ACT.  SINCE THE ACT DOES NOT DEFINE THE
TERM, WE LOOK TO THE LEGISLATIVE HISTORY. 

        II.

                  LEGISLATIVE HISTORY REVEALS THAT CONGRESS MEANT

                      TO LEAVE THE DEFINITION OF INLAND WATERS

  TO THE COURTS. 

TWO CHANGES RELEVANT FOR OUR PURPOSES WERE MADE IN THE BILL WHICH
BECAME THE SUBMERGED LANDS ACT BETWEEN THE TIME IT WAS SENT TO THE
SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS AND THE TIME OF ITS
PASSAGE. 

(1)  AS FIRST WRITTEN, THE BILL DEFINED INLAND WATERS TO INCLUDE: 

"ALL ESTUARIES, PORTS, HARBORS, BAYS, CHANNELS, STRAITS, HISTORIC
BAYS, AND SOUNDS, AND ALL OTHER BODIES OF WATER WHICH JOIN THE OPEN
SEA." 

THIS DEFINITION WAS REMOVED BY THE SENATE COMMITTEE.  (FN9) 

(2)  THE BILL ORIGINALLY CONTAINED NO LIMITATION ON THE EXTENT OF
HISTORIC BOUNDARIES THAT COULD BE CLAIMED.  THE PROVISION LIMITING THE
EXTENT OF BOUNDARY CLAIMS TO NO MORE THAN THREE GEOGRAPHICAL MILES FROM
THE COASTLINE ON THE ATLANTIC AND PACIFIC OCEANS AND THREE MARINE
LEAGUES ON THE GULF OF MEXICO WAS ADDED TO THE BILL ON THE FLOOR OF THE
SENATE IN THE LATE STAGES OF THE DEBATES.  (FN10) 

REMOVAL OF THE DEFINITION FOR INLAND WATERS AND THE ADDITION OF THE
THREE-MILE LIMITATION IN THE PACIFIC, WHEN TAKEN TOGETHER, UNMISTAKABLY
SHOW THAT CALIFORNIA CANNOT PREVAIL IN ITS CONTENTION THAT "AS USED IN
THE ACT, CONGRESS INTENDED INLAND WATERS TO IDENTIFY THOSE AREAS WHICH
THE STATES ALWAYS THOUGHT WERE INLAND WATERS."  (FN11)  BY DELETING THE
ORIGINAL DEFINITION OF "INLAND WATERS" CONGRESS MADE PLAIN ITS INTENT
TO LEAVE THE MEANING OF THE TERM TO BE ELABORATED BY THE COURTS,
INDEPENDENTLY OF THE SUBMERGED LANDS ACT. 

IN RESPONSE TO SUBSTANTIAL OBJECTIONS MADE IN THE HEARINGS TO THE
ORIGINAL BILL'S BROAD DEFINITION OF INLAND WATERS ON GROUNDS THAT IT
WOULD PREJUDICE AND LIMIT THE POSITION WHICH THE UNITED STATES COULD
TAKE IN ITS FUTURE CONDUCT OF FOREIGN AFFAIRS, (FN12) SENATOR CORDON,
THE MANAGER OF THE BILL, RECOMMENDED AND OBTAINED ELIMINATION OF THE
DEFINITION.  THE COMMITTEE REPORT WHICH HE AUTHORED EXPLAINED: 

"THE WORDS 'WHICH INCLUDE ALL ESTUARIES, PORTS, HARBORS, BAYS,
CHANNELS, STRAITS, HISTORIC BAYS, AND SOUNDS, AND ALL OTHER BODIES OF
WATER WHICH JOIN THE OPEN SEA' HAVE BEEN DELETED FROM THE REPORTED BILL
BECAUSE OF THE COMMITTEE'S BELIEF THAT THE QUESTION OF WHAT CONSTITUTES
INLAND WATERS SHOULD BE LEFT WHERE CONGRESS FINDS IT.  THE COMMITTEE IS
CONVINCED THAT THE DEFINITION NEITHER ADDS NOR TAKES AWAY ANYTHING A
STATE MAY HAVE NOW IN THE WAY OF A COAST AND THE LANDS UNDERNEATH
WATERS BEHIND IT."  S. REP. NO. 133, 83D CONG., 1ST SESS., 18.  (FN13) 

THE COMMITTEE'S UNDERSTANDING THAT THE MEASURE "NEITHER ADDS NOR
TAKES AWAY ANYTHING A STATE MAY HAVE NOW IN THE WAY OF A COAST AND THE
LANDS UNDERNEATH WATERS BEHIND IT," APPEARS TO BE AN ACCEPTANCE OF
"INLAND WATERS" AS USED IN THE CALIFORNIA AND PRIOR COURT OPINIONS,
WHATEVER THAT USAGE MIGHT HAVE BEEN.  VARIOUS DIFFERENT CONCEPTS OF
INLAND WATERS WERE ASSERTED DURING THE SENATE HEARINGS, BASED ON SUCH
ELEMENTS AS THE DEPTH OF THE WATER, (FN14) THE WIDTH OF THE OPENING OF
A COASTAL INDENTATION, (FN15) THE BOGGS FORMULA, AND THE COMMON
DESIGNATION OF BODIES OF WATER AS BAYS, SOUNDS, STRAITS, ETC.  (FN16)
WHEN IT BECAME CLEAR THAT THE QUESTION HAD HIGHLY TECHNICAL ASPECTS
(SEE, E.G., N. 5, SUPRA) AND WAS ONE ON WHICH DIFFERENCES WOULD ARISE,
THE SENATE COMMITTEE ADOPTED THE EXPEDIENT SOLUTION OF LEAVING THE
MATTER JUST AS IT HAD FOUND IT, NEITHER ACCEPTING NOR REJECTING ANY
PARTICULAR RULE OR FORMULA.  (FN17)  IT INTENDED TO LEAVE UNAFFECTED
THE JUDICIAL VIEW OF INLAND WATERS AND THE JUDICIAL RESPONSIBILITY FOR
PARTICULARIZING IT. 

REFERENCE TO SENATOR CORDON'S REQUEST TO THE SENATE COMMITTEE FOR
DELETION OF THE OBJECTIONABLE CLAUSE CONFIRMS THAT UNDERSTANDING.  HE
SAID: 

"THE MATTER OF INLAND WATERS IS ONE THAT HAS BEEN DEFINED TIME AND
TIME AGAIN BY THE COURTS, NOT, I BELIEVE, IN ANY ONE ALL-INCLUSIVE
DEFINITION, BUT IT WAS FELT BY THOSE WHO OBJECTED TO THE DEFINITION
DURING THE HEARINGS THAT THE USE OF THESE WORDS WAS AN ATTEMPTED
LEGISLATIVE DEFINITION OF THE TERM 'INLAND WATERS,' AND IT WAS
INADVISABLE FOR US IN THIS BILL, WHICH IS A TRANSFER OF TITLE, TO
ATTEMPT TO MAKE LAW IN THE OTHER FIELD OF WHAT IS OR IS NOT INLAND
WATER. 

"THE USE OF THE LANGUAGE, IT WAS FELT, WOULD PROBABLY RAISE QUESTIONS
THAT HAVE NOT BEEN RAISED, WHEREAS THE PRESENT DEFINITIONS ARE IN THE
DECISIONS AND AVAILABLE TO THE COURT." 

"SENATOR MALONE.  THE INLAND WATERS HAD A SPECIAL MASTER FOR THAT
PARTICULAR JOB, DID THEY NOT, AND THAT IS NOW UNDER CONSIDERATION, THAT
IS, HIS REPORT IS UNDER CONSIDERATION BY THE SUPREME COURT? 

"SENATOR CORDON.  WITH RESPECT TO CALIFORNIA, AND A PORTION OF
CALIFORNIA COAST; YES."  SENATE HEARINGS 1304-1305. 

SHORTLY THEREAFTER THERE FOLLOWS A VIRTUALLY CONCLUSIVE STATEMENT: 

"SENATOR CORDON.  IT WAS NOT THE CHAIRMAN'S VIEW THAT WE WERE
ATTEMPTING TO DRAW A LINE DELIMITING INLAND WATERS, BUT THAT WE WERE
USING A TERM THAT IS WELL KNOWN IN THE LAW AND IS DEFINED BY THE COURT
IN THE CALIFORNIA CASE, FOR INSTANCE, AND IN THE LOUISIANA CASE, I
ASSUME.  THAT LINE MIGHT STILL BE DEFINED, EVEN THOUGH THE AREA MAY NOT
NOW HAVE THE SAME LEGAL STATUS AS IT HAD BEFORE."  (FN18)  ID., AT
1376. 

CALIFORNIA FASTENS ON A STATEMENT MADE IN THE COMMITTEE REPORT WITH
REGARD TO THE ELIMINATED DEFINITION: 

"THE ELIMINATION OF THE LANGUAGE, IN THE COMMITTEE'S OPINION, IS
CONSISTENT WITH THE PHILOSOPHY OF THE HOLLAND BILL TO PLACE THE STATES
IN THE POSITION IN WHICH BOTH THEY AND THE FEDERAL GOVERNMENT THOUGHT
THEY WERE FOR MORE THAN A CENTURY AND A HALF, AND NOT TO CREATE ANY
SITUATIONS WITH RESPECT THERETO."  S. REP. NO. 133, 83D CONG., 1ST
SESS., 18. 

FROM THIS CALIFORNIA REASONS THAT "INLAND WATERS" MUST HAVE BEEN
INTENDED TO ENCOMPASS ALL WATERS WHICH THE STATES "THOUGHT" WERE INLAND
WATERS, FOR THAT IS THE ONLY WAY IN WHICH THE ACT CAN NOW BE
INTERPRETED TO EFFECTUATE FULLY ITS SUPPOSED "PHILOSOPHY" OF GRANTING
TO THE STATES ALL SUBMERGED LANDS WITHIN THEIR HISTORIC BOUNDARIES. 

IF SUCH A VIEW OF THE BILL'S PURPOSE IS ACCEPTED AS OF THE TIME THAT
THE COMMITTEE REPORT WAS WRITTEN, THERE IS, NONETHELESS, NO
INCONSISTENCY WHATSOEVER BETWEEN THAT PURPOSE AND A LEGISLATIVE INTENT
TO LEAVE THE DEFINITION OF INLAND WATERS TO THE COURTS WITHOUT
RESTRICTION; AT THAT TIME THE LIMITATION ON BOUNDARY CLAIMS HAD NOT YET
BEEN INCORPORATED INTO THE ACT; THUS AS THE ACT WAS THEN WRITTEN,
STATES COULD HAVE CLAIMED ALL SUBMERGED LANDS WITHIN THEIR HISTORIC
BOUNDARIES, NO MATTER HOW "INLAND WATERS" WAS DEFINED.  THE DEFINITION
WOULD HAVE AFFECTED ONLY THOSE STATES WHICH, NOT HAVING ADEQUATE PRE
EXISTING SEAWARD BOUNDARIES, CHOSE TO EXTEND THEIR BOUNDARIES THREE
MILES FROM THE COASTLINE PURSUANT TO SEC. 4 OF THE ACT.  AS STATED BY
SENATOR CORDON DURING THE HEARINGS:    "THIS BILL HAS TWO APPROACHES TO
A DETERMINATION OF THE AREA OF ITS APPLICATION.  THE FIRST APPROACH IS
THAT OF THE BOUNDARIES OF THE STATES WHEN THEY CAME INTO THE UNION;
SECOND, AN ELECTION TO ANY STATE THAT HAS NOT DONE SO TO EXTEND ITS
BOUNDARY 3 GEOGRAPHICAL MILES FROM ITS PRESENT COASTLINE, AS THAT TERM
IS DESCRIBED IN THE PRESENT TENSE IN THE BILL."  SENATE HEARINGS 1374. 

ONLY WITH THE ADOPTION OF THE THREE-MILE LIMITATION ON THE ATLANTIC
AND PACIFIC OCEANS AND THE THREE-LEAGUE LIMITATION IN THE GULF OF
MEXICO DID THE INTERPRETATIONS OF HISTORIC BOUNDARIES AND INLAND WATERS
BECOME OPERATIONALLY RELATED, AND ANY INCONSISTENCY THUS CREATED
BETWEEN THE LIMITATION AND THE PRIOR PHILOSOPHY OF THE ACT SHOWS ONLY
THAT, TO THE EXTENT THE LIMITATION WOULD COME INTO PLAY, THE PHILOSOPHY
WAS MODIFIED.  (FN19)  THIS AMENDMENT WAS ONE OF VERY FEW MADE TO THE
BILL AS REPORTED BY THE SENATE COMMITTEE, AND CAME AS THE RESULT OF
CONTINUOUS CRITICISM THROUGHOUT THE COURSE OF THE DEBATES THAT THE
EXTENT OF THE GRANT WAS INDEFINITE, (FN20) AND THAT COASTAL STATES
COULD ENGAGE IN A "CLAIMING RACE" (FN21) FOR SUBMERGED LANDS. 
CALIFORNIA POINTS TO LANGUAGE STATING THAT ADOPTION OF THE LIMITATION
WORKED NO SIGNIFICANT CHANGE IN THE BILL.  99 CONG. REC. 4114-4116
(REMARKS OF SENATOR HOLLAND).  BUT SUCH STATEMENTS SIMPLY REFLECT THE
UNDERSTANDING OF THE MAJOR SUPPORTERS OF THE BILL THAT NO STATES OTHER
THAN TEXAS AND FLORIDA (ON ITS GULF SIDE) HAD PROVABLE CLAIMS BEYOND
THREE MILES, AND THAT THE CLAIMS OF THOSE TWO STATES DID NOT GO BEYOND
THREE LEAGUES.  (FN22)  IF SUCH WERE THE CASE, THE LIMITATION COULD
INDEED BE THOUGHT TO HAVE NO EFFECT, FOR NO STATE BOUNDARIES WOULD RUN
AFOUL OF IT, AND THE VAST GRANT OF SUBMERGED LANDS UP TO THREE MILES
ALONG THE LENGTH OF THE ATLANTIC AND PACIFIC COASTS, AND THREE LEAGUES,
SUBJECT TO HISTORICAL PROOF, IN THE GULF OF MEXICO, WOULD NOT BE
IMPAIRED.  SENATOR HOLLAND, THE AUTHOR OF THE BILL, PROPOSED THE
LIMITING BOUNDARY AMENDMENT TO MEET THE FEARS OF THOSE SENATORS WHO HAD
CRITICIZED THE INDEFINITENESS OF THE BILL.  HE EXPLAINED: 

"  ...  I THINK THE AMENDMENT HAS VERY LITTLE EFFECT.  BUT I AM
PERFECTLY WILLING TO MEET THE SUGGESTIONS OF MY FRIENDS, SOME OF WHOM
HAVE BEEN OPPONENTS, AND SOME OF WHOM HAVE BEEN SUPPORTERS OF THE JOINT
RESOLUTION, TO THE EFFECT THAT THEY WOULD LIKE TO HAVE THE LANGUAGE
MORE CLEARLY SPELLED OUT THAN IT WAS IN THE ORIGINAL MEASURE, TO THE
EFFECT THAT THERE IS NO INTENTION WHATSOEVER TO GRANT BOUNDARIES BEYOND
3 GEOGRAPHICAL MILES IN EITHER THE ATLANTIC OR THE PACIFIC, AND THAT
THIS CONGRESS KNOWS OF NO POSSIBLE SITUATION UNDER WHICH GREATER
BOUNDARIES ARE CLAIMED OR COULD BE GRANTED IN THE GULF OF MEXICO THAN 3
LEAGUES; AND, IN THAT CASE, THIS CONGRESS KNOWS, ALTHOUGH THIS
AMENDMENT DOES NOT INDICATE IT, THAT THERE ARE BUT 2 STATES AFFECTED BY
THAT PARTICULAR SITUATION."  99 CONG. REC. 4116. 

SENATOR HOLLAND WAS AWARE OF CALIFORNIA'S EXPANSIVE INLAND WATER
CLAIMS, BUT THOUGHT THEM ALTOGETHER UNTENABLE. 

"MR. HOLLAND.  MY UNDERSTANDING IS THAT CALIFORNIA HAS NO PROVABLE
CASE BEYOND 3 MILES FROM ITS MAINLAND; AND THAT AS TO THE ISLANDS, ITS
PROVABLE CASE WOULD BE 3 MILES AROUND EACH OF THE ISLANDS.   I SO
STATED IN THE HEARINGS ON THIS MATTER. 

"MR. DOUGLAS.  THAT IS A CONSUMMATION DEVOUTLY TO BE DESIRED, BUT I
AM NOT AT ALL SATISFIED THAT THAT IS WHAT THE SENATOR'S JOINT
RESOLUTION WOULD ACCOMPLISH, BECAUSE THE COASTLINE IS NOT FULLY AND
CLEARLY DEFINED. 

     *         *         *         *         * 

"MR. HOLLAND.  UNDER THE JOINT RESOLUTION, NO SUCH CONTENTION COULD
BE MAINTAINED. 

"MR. DOUGLAS.  IS THE SENATOR CERTAIN OF THAT? 

"MR. HOLLAND.  THAT IS WHAT I BELIEVE, AND THAT IS WHAT EVERY LEGAL
AUTHORITY I HAVE CONSULTED ON THE SUBJECT BELIEVES.  INCIDENTALLY, THE
ONLY REASON WHY THERE WAS SOME THOUGHT TO THE CONTRARY WAS SOME WORDING
IN THE ORIGINAL JOINT RESOLUTION, WHICH HAS BEEN OMITTED, WHICH WOULD
HAVE MADE THE OUTER BOUNDARY OF INLAND WATERS FARTHER OUT THAN THAT
WHICH IS NOW PROVIDED BY THE JOINT RESOLUTION.   THE JOINT RESOLUTION
SIMPLY CONTINUES THE OUTER BOUNDARY OF INLAND WATERS PURSUANT TO THE
DECISIONS OF THE SUPREME COURT ALREADY MADE  ...  . 

     *         *         *         *         * 

"THE SENATOR FROM FLORIDA KNOWS FULL WELL THAT IF THE UNITED STATES
SUPREME COURT SHOULD CHANGE ITS MIND AS TO WHAT CONSTITUTED THE OUTER
LIMITS OF INLAND WATERS, AND SHOULD CHANGE IT TO A SUFFICIENT DEGREE,
IT COULD OPEN UP, NOT ONLY UNDER THIS JOINT RESOLUTION, BUT OF ITS OWN
INITIATIVE, QUESTIONS WHICH WOULD REACH OUT MUCH FURTHER THAN ANYTHING
WE HAVE BEEN TALKING ABOUT HERE. 

"THE SENATOR FROM FLORIDA BELIEVES THAT THE LAWS, AS ANNOUNCED OVER
AND OVER AND OVER AGAIN BY THE SUPREME COURT, AS TO THE DELIMITATION OF
INLAND WATERS, ARE SUFFICIENTLY FIXED, DEFINITE, AND CERTAIN SO THAT IT
WOULD REQUIRE A COMPLETE, CATACLYSMIC CHANGE OF THE SUPREME COURT'S
PHILOSOPHY IN THAT FIELD TO AFFORD ANY HOPE FOR AN EXTENSION OF THE
BOUNDARIES OF THE GOOD STATE OF CALIFORNIA SO THAT THEY WOULD GO OUT
BEYOND THE ISLANDS AS TO ALL AREAS CONTAINED WITHIN AN OUTER LINE. 
THERE IS NO WAY FOR US TO FORECLOSE THE SUPREME COURT FROM CHANGING ITS
MIND.  IT MIGHT CHANGE ITS MIND WITH REFERENCE TO INLAND WATERS AND
THEIR DELIMITATION.  BUT FAILING SUCH CHANGE, THE SENATOR FROM FLORIDA
CANNOT SEE HOW, UNDER THIS JOINT RESOLUTION, THERE COULD POSSIBLY BE
ANY SERIOUS QUESTION AFFECTING CALIFORNIA OR ANY OTHER STATE."  99
CONG. REC. 2756-2757. 

SENATOR HOLLAND DID NOT WISH TO FORECLOSE CALIFORNIA FROM ARGUING (AS
IT HAS DONE BOTH HERE AND BEFORE THE SPECIAL MASTER) THAT ITS WATERS
ARE INLAND WITHIN THE APPROPRIATE JUDICIAL DEFINITION, BUT IT WAS HIS
OPINION THAT NO SUCH DEFINITION WOULD PERMIT CALIFORNIA'S CLAIM TO ALL
WATERS SHOREWARD OF THEIR REMOTE ISLANDS TO PREVAIL.  CONGRESS COULD
HAVE DEFINED INLAND WATERS AS IT WISHED FOR THE PURELY DOMESTIC
PURPOSES OF THE SUBMERGED LANDS ACT.  SEE UNITED STATES V. LOUISIANA,
363 U.S. 1, 30-36.  IT COULD HAVE ADOPTED CALIFORNIA'S THEORY, OR THE
SPECIAL MASTER'S THEORY, OR ANY OTHER.  INSTEAD, IT CHOSE TO LEAVE THE
DEFINITION OF INLAND WATERS WHERE IT FOUND IT - IN THE COURT'S HANDS. 
THE ACT DOES NOT REVEAL A PARTICULAR INTENT THAT COURTS SHOULD BROADLY
INTERPRET "INLAND WATERS" SO AS TO RESTORE CALIFORNIA TO ITS HISTORIC
EXPECTATIONS REGARDLESS OF WHAT ITS EXPECTATIONS MIGHT BE.  (FN23)
INDEED, IF THE COURT IS TO DRAW ANY INFERENCE FROM THE INTENT AND
STRUCTURE OF THE ACT AS TO HOW INLAND WATERS SHOULD BE DEFINED, THE
MOST PLAUSIBLE INFERENCE WOULD BE THAT CONGRESS, IN ADOPTING THE THREE
MILE LIMITATION, MUST HAVE INTENDED SOME BASE LINE TO BE USED OTHER
THAN ONE DEPENDENT UPON EACH STATE'S SUBJECTIVE CONCEPT OF ITS INLAND
WATERS, FOR SUCH A LIMITATION WOULD PROVE TO HAVE BEEN NONE AT ALL, AS
FULL ACCEPTANCE OF CALIFORNIA'S CLAIMS IN THE PRESENT CASE WOULD SHOW. 

                         III. 

                  THE MEANING OF "INLAND WATERS" IN THE SUBMERGED

LANDS ACT SHOULD CONFORM TO THE CONVENTION

          ON THE TERRITORIAL SEA AND THE

               CONTIGUOUS ZONE. 

WE TURN, THEN, TO DETERMINING THE JUDICIAL DEFINITION OF "INLAND
WATERS."  IT IMMEDIATELY APPEARS THAT THE BULK OF CASES CITED BY
CONGRESSMEN DURING DEBATES ON THE SUBMERGED LANDS ACT FOR THE
PROPOSITION THAT INLAND WATERS HAVE "BEEN DEFINED TIME AND TIME AGAIN
BY THE COURTS" DEAL WITH INTERIOR WATERS SUCH AS LAKES AND RIVERS, AND
PROVIDE NO ASSISTANCE IN CLASSIFYING BODIES OF WATER WHICH JOIN THE
OPEN SEA.  (FN24)  IN THIS LATTER CONTEXT NO PRIOR CASE IN THIS COURT
HAS EVER PRECISELY DEFINED THE TERM.  THE 1947 CALIFORNIA OPINION
CLEARLY INDICATED THAT "INLAND WATERS" WAS TO HAVE AN INTERNATIONAL
CONTENT SINCE THE OUTER LIMITS OF INLAND WATERS WOULD DETERMINE THE
COUNTRY'S INTERNATIONAL COASTLINE, BUT THE COURT DID NOT PARTICULARIZE
THE DEFINITION.  (FN25)  IT WAS THAT TASK WHICH SUBSEQUENTLY LED TO THE
APPOINTMENT OF THE SPECIAL MASTER. 

THE SPECIAL MASTER FOUND THAT THERE WAS NO INTERNATIONALLY ACCEPTED
DEFINITION FOR INLAND WATERS AND DECIDED, IN THOSE CIRCUMSTANCES, THAT
IT WAS THE POSITION WHICH THE UNITED STATES TOOK ON THE QUESTION IN THE
CONDUCT OF ITS FOREIGN AFFAIRS WHICH SHOULD BE CONTROLLING.  HE
CONSIDERED THE RELEVANT DATE ON WHICH TO DETERMINE OUR FOREIGN POLICY
POSITION TO BE THE DATE OF THE CALIFORNIA DECREE, OCTOBER 27, 1947.  HE
THEREFORE REJECTED THE ASSERTION THAT LETTERS FROM THE STATE DEPARTMENT
WRITTEN IN 1951 AND 1952 (FN26) DECLARING THE THEN PRESENT POLICY OF
THE UNITED STATES WERE CONCLUSIVE ON THE QUESTION BEFORE HIM.  AT THE
SAME TIME THAT DECISION REQUIRED THE SPECIAL MASTER TO CONSIDER A GREAT
MANY FOREIGN POLICY MATERIALS DATING BACK TO 1793 IN AN ATTEMPT TO
DISCERN A CONSISTENT THREAD OF UNITED STATES POLICY ON THE DEFINITION
OF INLAND WATERS.  HE ULTIMATELY DECIDED THAT AS OF 1947 THE UNITED
STATES HAD TAKEN THE POSITION THAT A BAY WAS INLAND WATER ONLY IF A
CLOSING LINE COULD BE DRAWN ACROSS ITS MOUTH LESS THAN 10 MILES LONG
ENCLOSING A SUFFICIENT WATER AREA TO SATISFY THE BOGGS FORMULA. 
(FN27) 

SINCE THE FILING OF THE SPECIAL MASTER'S REPORT THE POLICY OF THE
UNITED STATES HAS CHANGED SIGNIFICANTLY.  INDEED IT MAY NOW BE SAID
THAT THERE IS A SETTLED INTERNATIONAL RULE DEFINING INLAND WATERS.  ON
MARCH 24, 1961, THE UNITED STATES RATIFIED THE CONVENTION ON THE
TERRITORIAL SEA AND THE CONTIGUOUS ZONE (T.I.A.S. NO. 5639) AND ON
SEPTEMBER 10, 1964, WHEN THE REQUISITE NUMBER OF NATIONS HAD RATIFIED
IT, THE CONVENTION WENT INTO FORCE.  FOR NATIONS WHICH DO NOT USE A
STRAIGHT-BASE-LINE METHOD (FN28) TO DEFINE INLAND WATERS (SEE UNITED
KINGDOM V. NORWAY, (1951) I.C.J. REP. 116), THE CONVENTION PERMITS A 24
MILE MAXIMUM CLOSING LINE FOR BAYS AND A "SEMICIRCLE" TEST FOR TESTING
THE SUFFICIENCY OF THE WATER AREA ENCLOSED.  THE SEMICIRCLE TEST
REQUIRES THAT A BAY MUST COMPRISE AT LEAST AS MUCH WATER AREA WITHIN
ITS CLOSING LINE AS WOULD BE CONTAINED IN A SEMICIRCLE WITH A DIAMETER
EQUAL TO THE LENGTH OF THE CLOSING LINE.  UNQUESTIONABLY THE 24-MILE
CLOSING LINE TOGETHER WITH THE SEMICIRCLE TEST NOW REPRESENTS THE
POSITION OF THE UNITED STATES.  (FN29) 

THE UNITED STATES CONTENDS THAT WE MUST IGNORE THE CONVENTION ON THE
TERRITORIAL SEA AND THE CONTIGUOUS ZONE IN PERFORMING OUR DUTY OF
GIVING CONTENT TO "INLAND WATERS" AS USED IN THE SUBMERGED LANDS ACT,
AND MUST RESTRICT OURSELVES TO DETERMINING WHAT OUR DECISION WOULD HAVE
BEEN HAD THE QUESTION BEEN PRESENTED TO US FOR DECISION ON MAY 22,
1953, THE DATE OF ENACTMENT.  AT THAT TIME THERE WAS NO INTERNATIONAL
ACCORD ON ANY DEFINITION OF INLAND WATERS, AND THE BEST EVIDENCE
(ALTHOUGH STRENUOUSLY CONTESTED BY CALIFORNIA) OF THE POSITION OF THE
UNITED STATES WAS THE LETTERS OF THE STATE DEPARTMENT WHICH THE SPECIAL
MASTER REFUSED TO TREAT AS CONCLUSIVE. 

WE DO NOT THINK THAT THE SUBMERGED LANDS ACT HAS SO RESTRICTED US.
CONGRESS, IN PASSING THE ACT, LEFT THE RESPONSIBILITY FOR DEFINING
INLAND WATERS TO THIS COURT.  (FN30)  WE THINK THAT IT DID NOT TIE OUR
HANDS AT THE SAME TIME.  HAD CONGRESS WISHED US SIMPLY TO RUBBER-STAMP
THE STATEMENTS OF THE STATE DEPARTMENT AS TO ITS POLICY IN 1953, IT
COULD READILY HAVE DONE SO ITSELF.  (FN31)  IT IS OUR OPINION THAT WE
BEST FILL OUR RESPONSIBILITY OF GIVING CONTENT TO THE WORDS WHICH
CONGRESS EMPLOYED BY ADOPTING THE BEST AND MOST WORKABLE DEFINITIONS
AVAILABLE.  THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS
ZONE, APPROVED BY THE SENATE AND RATIFIED BY THE PRESIDENT, (FN32)
PROVIDES SUCH DEFINITIONS.  WE ADOPT THEM FOR PURPOSES OF THE SUBMERGED
LANDS ACT.  THIS ESTABLISHES A SINGLE COASTLINE FOR BOTH THE
ADMINISTRATION OF THE SUBMERGED LANDS ACT AND THE CONDUCT OF OUR FUTURE
INTERNATIONAL RELATIONS (BARRING AN UNEXPECTED CHANGE IN THE RULES
ESTABLISHED BY THE CONVENTION).  FURTHERMORE THE COMPREHENSIVENESS OF
THE CONVENTION PROVIDES ANSWERS TO MANY OF THE LESSER PROBLEMS RELATED
TO COASTLINES WHICH, ABSENT THE CONVENTION, WOULD BE MOST TROUBLESOME. 
(FN33) 

CALIFORNIA ARGUES, ALTERNATIVELY TO ITS CLAIM THAT "INLAND WATERS"
EMBRACES ALL OCEAN AREAS LYING WITHIN A STATE'S HISTORIC SEAWARD
BOUNDARIES, THAT IF CONGRESS INTENDED "INLAND WATERS" TO BE JUDICALLY
DEFINED IN ACCORDANCE WITH INTERNATIONAL USAGE, SUCH DEFINITION SHOULD
POSSESS AN AMBULATORY QUALITY SO AS TO ENCOMPASS FUTURE CHANGES IN
INTERNATIONAL LAW OR PRACTICE.  THUS, IF 10 YEARS FROM NOW THE
DEFINITIONS OF THE CONVENTION  WERE AMENDED, CALIFORNIA WOULD SAY THAT
THE EXTENT OF THE SUBMERGED LANDS ACT GRANT WOULD AUTOMATICALLY SHIFT,
AT LEAST IF THE EFFECT OF SUCH AMENDMENT WERE TO ENLARGE THE EXTENT OF
SUBMERGED LANDS AVAILABLE TO THE STATES.  WE REJECT THIS OPEN-ENDED
VIEW OF THE ACT FOR SEVERAL REASONS.  BEFORE TODAY'S DECISION NO ONE
COULD SAY WITH ASSURANCE WHERE LAY THE LINE OF INLAND WATERS AS
CONTEMPLATED BY THE ACT; HENCE THERE COULD HAVE BEEN NO TENABLE
RELIANCE ON ANY PARTICULAR LINE.  AFTER TODAY THAT SITUATION WILL HAVE
CHANGED.  EXPECTATIONS WILL BE ESTABLISHED AND RELIANCE PLACED ON THE
LINE WE DEFINE.  ALLOWING FUTURE SHIFTS OF INTERNATIONAL UNDERSTANDING
RESPECTING INLAND WATERS TO ALTER THE EXTENT OF THE SUBMERGED LANDS ACT
GRANT WOULD SUBSTANTIALLY UNDERCUT THE DEFINITENESS OF EXPECTATION
WHICH SHOULD ATTEND IT.  MOREOVER, SUCH A VIEW MIGHT UNDULY INHIBIT THE
UNITED STATES IN THE CONDUCT OF ITS FOREIGN RELATIONS BY MAKING ITS
OWNERSHIP OF SUBMERGED LANDS VIS-A-VIS THE STATES CONTINUALLY DEPENDENT
UPON THE POSITION IT TAKES WITH FOREIGN NATIONS.  "FREEZING" THE
MEANING OF "INLAND WATERS" IN TERMS OF THE CONVENTION DEFINITION
LARGELY AVOIDS THIS, AND ALSO SERVES TO FULFILL THE REQUIREMENTS OF
DEFINITENESS AND STABILITY WHICH SHOULD ATTEND ANY CONGRESSIONAL GRANT
OF PROPERTY RIGHTS BELONGING TO THE UNITED STATES. 
                     IV.                         SUBSIDIARY
ISSUES. 

ONCE IT IS DECIDED THAT THE DEFINITIONS OF THE CONVENTION ON THE
TERRITORIAL SEA AND THE CONTIGUOUS ZONE APPLY, MANY OF THE SUBSIDIARY
ISSUES BEFORE US FALL INTO PLACE. 

1.  STRAIGHT BASE LINES.  - CALIFORNIA ARGUES THAT BECAUSE THE
CONVENTION PERMITS A NATION TO USE THE STRAIGHT-BASE-LINE METHOD FOR
DETERMINING ITS SEAWARD BOUNDARIES IF ITS "COAST LINE IS DEEPLY
INDENTED AND CUT INTO, OR IF THERE IS A FRINGE OF ISLANDS ALONG THE
COAST IN ITS IMMEDIATE VICINITY," CALIFORNIA IS THEREFORE FREE TO USE
SUCH BOUNDARY LINES ACROSS THE OPENINGS OF ITS BAYS AND AROUND ITS
ISLANDS.  (FN34)  WE AGREE WITH THE UNITED STATES THAT THE CONVENTION
RECOGNIZES THE VALIDITY OF STRAIGHT BASE LINES USED BY OTHER COUNTRIES,
NORWAY FOR INSTANCE, AND WOULD PERMIT THE UNITED STATES TO USE SUCH
BASE LINES IF IT CHOSE, BUT THAT CALIFORNIA MAY NOT USE SUCH BASE LINES
TO EXTEND OUR INTERNATIONAL BOUNDARIES BEYOND THEIR TRADITIONAL
INTERNATIONAL LIMITS AGAINST THE EXPRESSED OPPOSITION OF THE UNITED
STATES.  THE NATIONAL RESPONSIBILITY FOR CONDUCTING OUR INTERNATIONAL
RELATIONS OBVIOUSLY MUST BE ACCOMMODATED WITH THE LEGITIMATE INTERESTS
OF THE STATES IN THE TERRITORY OVER WHICH THEY ARE SOVEREIGN.  THUS A
CONTRACTION OF A STATE'S RECOGNIZED TERRITORY IMPOSED BY THE FEDERAL
GOVERNMENT IN THE NAME OF FOREIGN POLICY WOULD BE HIGHLY QUESTIONABLE. 
BUT AN EXTENSION OF STATE SOVEREIGNTY TO AN INTERNATIONAL AREA BY
CLAIMING IT AS INLAND WATER WOULD NECESSARILY ALSO EXTEND NATIONAL
SOVEREIGNTY, AND UNLESS THE FEDERAL GOVERNMENT'S RESPONSIBILITY FOR
QUESTIONS OF EXTERNAL SOVEREIGNTY IS HOLLOW, IT MUST HAVE THE POWER TO
PREVENT STATES FORM SO ENLARGING THEMSELVES.  WE CONCLUDE THAT THE
CHOICE UNDER THE CONVENTION TO USE THE STRAIGHT-BASE-LINE METHOD FOR
DETERMINING INLAND WATERS CLAIMED AGAINST OTHER NATIONS IS ONE THAT
RESTS WITH THE FEDERAL GOVERNMENT, AND NOT WITH THE INDIVIDUAL STATES. 

CALIFORNIA RELIES UPON MANCHESTER V. MASSACHUSETTS, 139 U.S. 240, FOR
THE PROPOSITION THAT A STATE MAY DRAW ITS BOUNDARIES AS IT PLEASES
WITHIN LIMITS RECOGNIZED BY THE LAW OF NATIONS REGARDLESS OF THE
POSITION TAKEN BY THE UNITED STATES.  ALTHOUGH SOME DICTA IN THE CASE
MAY BE READ TO SUPPORT THAT VIEW, WE DO NOT SO INTERPRET THE OPINION. 
THE CASE INVOLVED NEITHER AN EXPANSION OF OUR TRADITIONAL INTERNATIONAL
BOUNDARY NOR OPPOSITION BY THE UNITED STATES TO THE POSITION TAKEN BY
THE STATE. 

2.  TWENTY-FOUR-MILE CLOSING RULE.  - THE CONVENTION RECOGNIZES, AND
IT IS THE PRESENT UNITED STATES POSITION, (FN35) THAT A 24-MILE CLOSING
RULE TOGETHER WITH THE SEMICIRCLE TEST SHOULD BE USED FOR CLASSIFYING
BAYS IN THE UNITED STATES.  (FN36)  APPLYING THESE TESTS TO THE
SEGMENTS OF CALIFORNIA'S COAST HERE IN DISPUTE, IT APPEARS THAT
MONTEREY BAY IS INLAND WATER AND THAT NONE OF THE OTHER COASTAL
SEGMENTS IN DISPUTE (FN37) FULFILL THESE ASPECTS OF THE CONVENTION
TEST.  WE SO HOLD. 

CALIFORNIA ASSERTS THAT THE SANTA BARBARA CHANNEL MAY BE CONSIDERED A
"FICTITIOUS BAY" BECAUSE THE OPENINGS AT BOTH ENDS OF THE CHANNEL AND
BETWEEN THE ISLANDS ARE EACH LESS THAN 24 MILES.  (FN38) THE UNITED
STATES ARGUES THAT THE CHANNEL IS NO BAY AT ALL; THAT IT IS A STRAIT
WHICH SERVES AS A USEFUL ROUTE OF COMMUNICATION BETWEEN TWO AREAS OF
OPEN SEA AND AS SUCH MAY NOT BE CLASSIFIED AS INLAND WATERS.  (FN39) 

BY WAY OF ANALOGY CALIFORNIA DIRECTS OUR ATTENTION TO THE BRETON AND
CHANDELEUR SOUNDS OFF LOUISIANA WHICH THE UNITED STATES CLAIMS AS
INLAND WATERS, UNITED STATES V. LOUISIANA, 363 U.S. 1, 66-67, N. 108. 
EACH OF THESE ANALOGIES ONLY SERVES TO POINT UP THE VALIDITY OF THE
UNITED STATES' ARGUMENT THAT THE SANTA BARBARA CHANNEL SHOULD NOT BE
TREATED AS A BAY.  THE BRETON SOUND IS A CUL DE SAC.  THE CHANDELEUR
SOUND, IF CONSIDERED SEPARATELY FROM THE BRETON SOUND WHICH IT JOINS,
LEADS ONLY TO THE BRETON SOUND.  NEITHER IS USED AS A ROUTE OF PASSAGE
BETWEEN TWO AREAS OF OPEN SEA.  IN FACT BOTH ARE SO SHALLOW AS TO NOT
BE READILY NAVIGABLE.  (FN40)  CALIFORNIA ALSO POINTS TO THE STRAIT OF
JUAN DE FUCA.  THAT STRAIT IS NOT CLAIMED BY THE UNITED STATES AS A
"FICTITIOUS BAY" AND IT DOES NOT CONNECT TWO AREAS OF OPEN SEA. 

EVIDENCE SUBMITTED TO THE SPECIAL MASTER ON THE EXTENT OF
INTERNATIONAL USE MADE OF THE SANTA BARBARA CHANNEL WAS SPARSE.  WHAT
EVIDENCE THERE WAS INDICATED THE USEFULNESS OF THE ROUTE, BUT DID NOT
SPECIFY WHETHER THE SHIPS SO USING IT WERE DOMESTIC OR INTERNATIONAL. 
(FN41)  CALIFORNIA NOW REGARDS THE POINT AS IMPORTANT, FOR UNDER
INTERNATIONAL LAW AS EXPRESSED IN THE CORFU CHANNEL CASE, (1949) I.C.J.
REP. 4, THE INTERNATIONAL COURT OF JUSTICE HELD THAT A COUNTRY COULD
NOT CLAIM A STRAIT AS INLAND WATER IF, IN ITS NATURAL STATE, IT SERVED
AS A USEFUL ROUTE FOR INTERNATIONAL PASSAGE.  WE DO NOT CONSIDER THE
POINT OF CONTROLLING IMPORTANCE.  THE UNITED STATES HAS NOT IN THE PAST
CLAIMED THE SANTA BARBARA CHANNEL AS INLAND WATER AND OPPOSES ANY SUCH
CLAIM NOW.  THE CHANNEL HAS NOT BEEN REGARDED AS A BAY EITHER
HISTORICALLY OR GEOGRAPHICALLY.  IN THESE CIRCUMSTANCES, AS WITH THE
DRAWING OF STRAIGHT BASE LINES, WE HOLD THAT IF THE UNITED STATES DOES
NOT CHOOSE TO EMPLOY THE CONCEPT OF A "FICTITIOUS BAY" IN ORDER TO
EXTEND OUR INTERNATIONAL BOUNDARIES AROUND THE ISLANDS FRAMING SANTA
BARBARA CHANNEL, IT CANNOT BE FORCED TO DO SO BY CALIFORNIA.  IT IS,
THEREFORE, UNNECESSARY TO REINSTITUTE PROCEEDINGS BEFORE A MASTER TO
DETERMINE THE FACTUAL QUESTION OF WHETHER THE PASSAGEWAY IS
INTERNATIONALLY USEFUL. 

3.  HISTORIC INLAND WATERS.  - BY THE TERMS OF THE CONVENTION THE 24
MILE CLOSING RULE DOES NOT APPLY TO SO-CALLED "HISTORIC" BAYS.  (FN42)
ESSENTIALLY THESE ARE BAYS OVER WHICH A COASTAL NATION HAS
TRADITIONALLY ASSERTED AND MAINTAINED DOMINION WITH THE ACQUIESCENCE OF
FOREIGN NATIONS.  (FN43)  CALIFORNIA CLAIMS THAT VIRTUALLY ALL THE
WATERS HERE IN DISPUTE ARE HISTORIC INLAND WATERS AS THE TERM IS
INTERNATIONALLY UNDERSTOOD.  IT RELIES PRIMARILY ON AN INTERPRETATION
OF ITS STATE CONSTITUTION TO THE EFFECT THAT THE STATE BOUNDARIES RUN
THREE MILES OUTSIDE THE ISLANDS AND BAYS, (FN44) PLUS SEVERAL COURT
DECISIONS WHICH SO INTERPRET IT AS APPLIED TO MONTEREY, SANTA MONICA,
AND SAN PEDRO BAYS.  (FN45)  THE UNITED STATES COUNTERS THAT, AS WITH
STRAIGHT BASE LINES, CALIFORNIA CAN MAINTAIN NO CLAIM TO HISTORIC
INLAND WATERS UNLESS THE CLAIM IS ENDORSED BY THE UNITED STATES.  THE
SPECIAL MASTER FOUND IT UNNECESSARY TO DECIDE THAT QUESTION BECAUSE, ON
THE EVIDENCE BEFORE HIM, HE CONCLUDED THAT CALIFORNIA HAD NOT
TRADITIONALLY EXERCISED DOMINION OVER ANY OF THE CLAIMED WATERS. 

SINCE THE 24-MILE RULE INCLUDES MONTEREY BAY, WE DO NOT CONSIDER IT
HERE.  AS TO SANTA MONICA BAY, SAN PEDRO BAY, AND THE OTHER WATER AREAS
IN DISPUTE, WE AGREE WITH THE SPECIAL MASTER THAT THEY ARE NOT HISTORIC
INLAND WATERS OF THE UNITED STATES. 

CALIFORNIA CONTENDS THAT TWO STUDIES OF THE CRITERIA FOR DETERMINING
HISTORIC WATERS HAVE BEEN MADE SINCE THE SPECIAL MASTER FILED HIS
REPORT (FN46) WHICH SHOW THAT HE APPLIED THE WRONG STANDARDS, THUS
VITIATING HIS CONCLUSIONS.  IN PARTICULAR IT IS SAID THAT THE SPECIAL
MASTER ERRONEOUSLY THOUGHT THE CONCEPT OF HISTORIC WATERS TO BE AN
EXCEPTION TO THE GENERAL RULE OF INLAND WATERS REQUIRING A RIGOROUS
STANDARD OF PROOF.  WE FIND NO SUBSTANTIAL INDICATION OF THIS IN HIS
REPORT. 

ON THE EVIDENCE, CALIFORNIA'S CLAIM THAT ITS CONSTITUTION SET A
BOUNDARY BEYOND THE BAYS AND ISLANDS IS ARGUABLE, BUT MANY OF THE STATE
STATUTES DRAWING COUNTY BOUNDARIES WHICH SUPPOSEDLY RUN TO THE LIMIT OF
THE STATE BOUNDARIES CUT THE OTHER WAY BY INDICATING A LINE ONLY THREE
MILES FROM SHORE.  (FN47)  FURTHERMORE, A LEGISLATIVE DECLARATION OF
JURISDICTION WITHOUT EVIDENCE OF FURTHER ACTIVE AND CONTINUOUS
ASSERTION OF DOMINION OVER THE WATERS IS NOT SUFFICIENT TO ESTABLISH
THE CLAIM.  (FN48)  THERE IS A FEDERAL DISTRICT COURT OPINION, UNITED
STATES V. CARRILLO, 13 F. SUPP. 121 (1935), WHICH DISMISSED FEDERAL
CRIMINAL CHARGES FOR AN OFFENSE WHICH TOOK PLACE MORE THAN THREE MILES
FROM THE SHORE OF SAN PEDRO BAY ON THE GROUND THAT THE BAY WAS WITHIN
CALIFORNIA, NOT FEDERAL JURISDICTION; BUT IT IS DIFFICULT TO SEE THIS
DISMISSAL AS AN ASSERTION OF DOMINION.  IN SANTA MONICA BAY, CALIFORNIA
DID SUCCESSFULLY PROSECUTE A CRIMINAL OFFENSE WHICH TOOK PLACE MORE
THAN THREE MILES FROM THE SHORE, PEOPLE V. STRALLA, 14 CAL. 2D 617, 96
P.2D 941 (1939).  HOWEVER, THE DECISION STANDS AS THE ONLY ASSERTION OF
CRIMINAL JURISDICTION OF WHICH WE HAVE BEEN MADE AWARE.  (FN49) 

THE UNITED STATES DISCLAIMS THAT ANY OF THE DISPUTED AREAS ARE
HISTORIC INLAND WATERS.  WE ARE RELUCTANT TO HOLD THAT SUCH A
DISCLAIMER WOULD BE DECISIVE IN ALL CIRCUMSTANCES, FOR A CASE MIGHT
ARISE IN WHICH THE HISTORIC EVIDENCE WAS CLEAR BEYOND DOUBT.  BUT IN
THE CASE BEFORE US, WITH ITS QUESTIONABLE EVIDENCE OF CONTINUOUS AND
EXCLUSIVE ASSERTIONS OF DOMINION OVER THE DISPUTED WATERS, WE THINK THE
DISCLAIMER DECISIVE. 

4.  HARBORS AND ROADSTEADS.  - THE PARTIES DISAGREE AS TO WHETHER
INLAND WATERS SHOULD ENCOMPASS ANCHORAGES BEYOND THE OUTER HARBORWORKS
OF HARBORS.  THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS
ZONE (ART. 8) STATES WITHOUT QUALIFICATION THAT "THE OUTERMOST
PERMANENT HARBOUR WORKS WHICH FORM AN INTEGRAL PART OF THE HARBOUR
SYSTEM SHALL BE REGARDED AS FORMING PART OF THE COAST."  WE TAKE THAT
TO BE THE LINE INCORPORATED IN THE SUBMERGED LANDS ACT. 

AS TO OPEN ROADSTEADS USED FOR LOADING, UNLOADING AND ANCHORING
SHIPS, THE CONVENTION (ART. 9) PROVIDES THAT SUCH AREAS SHOULD BE
INCLUDED IN THE TERRITORIAL SEA, AND, BY IMPLICATION, THAT THEY ARE NOT
TO BE CONSIDERED INLAND WATERS.  WE ADOPT THAT INTERPRETATION. 

5.  THE LINE OF ORDINARY LOW WATER.  - ALONG THE CALIFORNIA COAST
THERE ARE TWO LOW TIDES EACH DAY, ONE OF WHICH IS GENERALLY LOWER THAN
THE OTHER.  THE ASSERTION OF THE UNITED STATES, WITH WHICH THE SPECIAL
MASTER AGREED, IS THAT THE LINE OF ORDINARY LOW WATER IS OBTAINED BY
TAKING THE AVERAGE OF ALL THE LOW TIDES.  CALIFORNIA WOULD AVERAGE ONLY
THE LOWER LOW TIDES. 

WE HOLD THAT CALIFORNIA'S POSITION REPRESENTS THE BETTER VIEW OF THE
MATTER.  THE SUBMERGED LANDS ACT DEFINES COASTLINE IN TERMS OF THE
"LINE OF ORDINARY LOW WATER."  THE CONVENTION (ART. 3) USES "THE LOW
WATER LINE ALONG THE COAST AS MARKED ON LARGE-SCALE CHARTS OFFICIALLY
RECOGNIZED BY THE COASTAL STATE" (I.E., THE UNITED STATES).  WE
INTERPRET THE TWO LINES THUS INDICATED TO CONFORM, AND ON THE OFFICIAL
UNITED STATES COASTAL CHARTS OF THE PACIFIC COAST PREPARED BY THE
UNITED STATES COAST AND GEODETIC SURVEY, IT IS THE LOWER LOW WATER LINE
WHICH IS MARKED. 

6.  ARTIFICIAL ACCRETIONS.  - WHEN THIS CASE WAS BEFORE THE SPECIAL
MASTER, THE UNITED STATES CONTENDED THAT IT OWNED ALL MINERAL RIGHTS TO
LANDS OUTSIDE INLAND WATERS WHICH WERE SUBMERGED AT THE DATE CALIFORNIA
ENTERED THE UNION, EVEN THOUGH SINCE ENCLOSED OR RECLAIMED BY MEANS OF
ARTIFICIAL STRUCTURES.  THE SPECIAL MASTER RULED THAT LANDS SO ENCLOSED
OR FILLED BELONGED TO CALIFORNIA BECAUSE SUCH ARTIFICIAL CHANGES WERE
CLEARLY RECOGNIZED BY INTERNATIONAL LAW TO CHANGE THE COASTLINE. 
FURTHERMORE, THE SPECIAL MASTER RECOGNIZED THAT THE UNITED STATES,
THROUGH ITS CONTROL OVER NAVIGABLE WATERS, HAD POWER TO PROTECT ITS
INTERESTS FROM ENCROACHMENT BY UNWARRANTED ARTIFICIAL STRUCTURES, AND
THAT THE EFFECT OF ANY FUTURE CHANGES COULD THUS BE THE SUBJECT OF
AGREEMENT BETWEEN THE PARTIES. 

THE UNITED STATES NOW CONTENDS THAT WHEREAS THE SUBMERGED LANDS ACT
RECOGNIZED AND CONFIRMED STATE TITLE WITHIN ALL ARTIFICIAL AS WELL AS
NATURAL MODIFICATIONS TO THE SHORELINE PRIOR TO THE PASSAGE OF THE ACT,
CONGRESS MEANT TO RECOGNIZE ONLY NATURAL MODIFICATIONS AFTER THE DATE
OF THE ACT.  THE ACT, HOWEVER, MAKES NO SPECIFIC REFERENCE TO
ARTIFICIAL ACCRETIONS, AND NOWHERE IN THE LEGISLATIVE HISTORY DID
ANYONE FOCUS ON THE QUESTION.  (FN50)  THE UNITED STATES POINTS BY
ANALOGY TO THE RULE OF PROPERTY LAW THAT ARTIFICIAL FILL BELONGS TO THE
OWNER OF THE SUBMERGED LAND ONTO WHICH IT IS DEPOSITED.  MARINE R. &
COAL CO. V. UNITED STATES, 257 U.S. 47, 65.  WE THINK THE SITUATION
DIFFERENT WHEN A STATE EXTENDS ITS LAND DOMAIN BY PUSHING BACK THE SEA;
IN THAT CASE ITS SOVEREIGNTY SHOULD EXTEND TO THE NEW LAND, AS WAS
GENERALLY THOUGHT TO BE THE CASE PRIOR TO THE 1947 CALIFORNIA OPINION. 
(FN51)  THE CONSIDERATIONS WHICH LED US TO REJECT THE POSSIBILITY OF
WHOLESALE CHANGES IN THE LOCATION OF THE LINE OF INLAND WATERS CAUSED
BY FUTURE CHANGES IN INTERNATIONAL LAW, SUPRA, PP. 166-167, DO NOT
APPLY WITH FORCE TO THE RELATIVELY SLIGHT AND SPORADIC CHANGES WHICH
CAN BE BROUGHT ABOUT ARTIFICIALLY.  ARGUMENTS BASED ON THE INEQUITY TO
THE UNITED STATES OF ALLOWING CALIFORNIA TO EFFECT CHANGES IN THE
BOUNDARY BETWEEN FEDERAL AND STATE SUBMERGED LANDS BY MAKING FUTURE
ARTIFICIAL CHANGES IN THE COASTLINE ARE MET, AS THE SPECIAL MASTER
POINTED OUT, BY THE ABILITY OF THE UNITED STATES TO PROTECT ITSELF
THROUGH ITS POWER OVER NAVIGABLE WATERS. 

WITH THE MODIFICATIONS SET OUT IN THIS OPINION WE APPROVE THE
RECOMMENDATIONS OF THE SPECIAL MASTER.  THE PARTIES, OR EITHER OF THEM,
MAY, BEFORE SEPTEMBER 1, 1965, SUBMIT A PROPOSED DECREE TO CARRY THIS
OPINION INTO EFFECT, FAILING WHICH THE COURT WILL PREPARE AND ENTER AN
APPROPRIATE DECREE AT THE NEXT TERM OF COURT.  IT IS SO ORDERED.    FN1
67 STAT. 29, 43 U.S.C. SECS. 1301-1315 (1958 ED.). 

FN2  THE LATE WILLIAM H. DAVIS OF NEW YORK CITY. 

FN3  THE SEGMENTS WERE AS FOLLOWS: 

1.  FROM POINT CONCEPTION TO POINT HUENEME: 

2.  SAN PEDRO BAY: 

3.  FROM THE SOUTHERN EXTREMITY OF SAN PEDRO BAY TO THE WESTERN
HEADLAND AT NEWPORT BAY:    4.  CRESCENT CITY BAY: 

5.  MONTEREY BAY: 

6.  SAN LUIS OBISPO BAY: 

7.  SANTA MONICA BAY. 

WE DIRECTED THE SPECIAL MASTER TO RECOMMEND ANSWERS TO THE FOLLOWING
QUESTIONS: 

"QUESTION 1.  - WHAT IS THE STATUS (INLAND WATERS OR OPEN SEA) OF
PARTICULAR CHANNELS AND OTHER WATER AREAS BETWEEN THE MAINLAND AND
OFFSHORE ISLANDS, AND, IF INLAND WATERS, THEN BY WHAT CRITERIA ARE THE
INLAND WATER LIMITS OF ANY SUCH CHANNEL OR OTHER WATER AREA TO BE
DETERMINED? 

"QUESTION 2.  - ARE PARTICULAR SEGMENTS IN FACT BAYS OR HARBORS
CONSTITUTING INLAND WATERS AND FROM WHAT LANDMARKS ARE THE LINES
MARKING THE SEAWARD LIMITS OF BAYS, HARBORS, RIVERS, AND OTHER INLAND
WATERS TO BE DRAWN? 

"QUESTION 3.  - BY WHAT CRITERIA IS THE ORDINARY LOW WATER MARK ON
THE COAST OF CALIFORNIA TO BE ASCERTAINED?"  342 U.S. 891. 

FN4  CALIFORNIA'S CLAIM TO THE "OVERALL UNIT AREA" RUNS FROM POINT
CONCEPTION TO RICHARDSON ROCK (21 MILES ACROSS WATER), TO SAN MIGUEL
ISLAND, TO SANTA ROSA ISLAND, TO GULL ISLAND; THENCE TO BEGG ROCK (35.8
MILES), TO SAN NICOLAS ISLAND, TO SAN CLEMENTE ISLAND (43 MILES);
THENCE BACK TO THE MAINLAND AT POINT LOMA (56.8 MILES).  SAN NICOLAS
AND SAN CLEMENTE ISLANDS ARE OVER 50 MILES FROM SHORE.  SEE MAP
ATTACHED AS APPENDIX C TO THE DISSENTING OPINION, POST, AT 178. 

FN5  TO DETERMINE WHETHER A COASTAL INDENTATION IS OF SUFFICIENT
DEPTH AND SHAPE TO BE INLAND WATER, THE BOGGS FORMULA WOULD (1) DRAW
THE CLOSING LINE ACROSS THE MOUTH OF THE INDENTATION; (2) DRAW A BELT
AROUND THE SHORE OF THE INDENTATION (SIMILAR TO A SMALL MARGINAL BELT)
HAVING A WIDTH EQUAL TO ONE-FOURTH THE LENGTH OF THE CLOSING LINE
ACROSS THE ENTRANCE; (3) COMPARE THE REMAINING AREA INSIDE THE CLOSING
LINE WITH THE AREA OF A SEMICIRCLE HAVING A DIAMETER EQUAL TO ONE-HALF
OF THE LENGTH OF THE CLOSING LINE, AND IF THE ENCLOSED AREA IS LARGER
THAN THAT OF THE SEMICIRCLE, THE INDENTATION IS INLAND WATER.  BOGGS,
DELIMITATION OF THE TERRITORIAL SEA, 24 AM. J. INT'L L. 541, 548. 

FN6  THE SPECIAL MASTER RECOMMENDED AS FOLLOWS: 

"QUESTION 1:  THE CHANNELS AND OTHER WATER AREAS BETWEEN THE MAINLAND
AND THE OFFSHORE ISLANDS WITHIN THE AREA REFERRED TO BY CALIFORNIA AS
THE 'OVER-ALL UNIT AREA' ARE NOT INLAND WATERS.  THEY LIE SEAWARD OF
THE BASELINE OF THE MARGINAL BELT OF TERRITORIAL WATERS, WHICH SHOULD
BE MEASURED IN EACH INSTANCE ALONG THE SHORE OF THE ADJOINING MAINLAND
OR ISLAND, EACH ISLAND HAVING ITS OWN MARGINAL BELT. 

"QUESTION 2:  NO ONE OF THE SEVEN PARTICULAR COASTAL SEGMENTS NOW
UNDER CONSIDERATION FOR PRECISE DETERMINATION AND ADJUDICATION IS A BAY
CONSTITUTING INLAND WATERS.  THE LANDMARKS FROM WHICH THE LINES MARKING
THE SEAWARD LIMITS (THE STRAIGHT-LINE SEGMENTS OF THE BASELINE OF THE
MARGINAL BELT) OF BAYS, HARBORS, RIVERS AND OTHER INLAND WATERS ARE TO
BE DRAWN, ARE AS FOLLOWS: 

"BAYS 

"THE EXTREME SEAWARD LIMIT OF INLAND WATERS OF A BAY IS A LINE TEN
NAUTICAL MILES LONG.  FOR INDENTATIONS HAVING PRONOUNCED HEADLANDS NOT
MORE THAN TEN NAUTICAL MILES APART, AND HAVING A DEPTH AS HEREINAFTER
DEFINED, A STRAIGHT LINE IS TO BE DRAWN ACROSS THE ENTRANCE.  WHERE THE
HEADLANDS ARE MORE THAN TEN NAUTICAL MILES APART, THE STRAIGHT LINE IS
TO BE DRAWN ACROSS THE INDENTATION AT THE POINT NEAREST THE ENTRANCE AT
WHICH THE WIDTH DOES NOT EXCEED TEN NAUTICAL MILES.  IN EITHER CASE THE
REQUISITE DEPTH IS TO BE DETERMINED BY THE FOLLOWING CRITERION:  THE
ENVELOPE OF ALL ARCS OF CIRCLES HAVING A RADIUS EQUAL TO ONE-FOURTH THE
LENGTH OF THE STRAIGHT LINE SHALL BE DRAWN FROM ALL POINTS AROUND THE
SHORE OF THE INDENTATION; IF THE AREA ENCLOSED BY THE STRAIGHT LINE
ACROSS THE ENTRANCE AND THE ENVELOPE OF THE ARCS OF THE CIRCLES IS
GREATER THAN THAT OF A SEMICIRCLE WITH A DIAMETER EQUAL TO ONE-HALF THE
LENGTH OF THE LINE ACROSS THE ENTRANCE, THE WATERS OF THE INDENTATION
SHALL BE REGARDED AS INLAND WATERS; IF OTHERWISE, THE WATERS OF THE
INDENTATION SHALL BE REGARDED AS OPEN SEA. 

"HARBORS (PORTS) 

"IN FRONT OF HARBORS THE OUTER LIMIT OF INLAND WATERS IS TO EMBRACE
AN ANCHORAGE REASONABLY RELATED TO THE PHYSICAL SURROUNDINGS AND THE
SERVICE REQUIREMENTS OF THE PORT, AND, ABSENT CONTRARY EVIDENCE, MAY BE
ASSUMED TO BE THE LINE OF THE OUTERMOST PERMANENT HARBOR WORKS. 

"RIVER MOUTHS 

"WHERE RIVERS EMPTY INTO THE SEA, THE SEAWARD LIMIT OF INLAND WATERS
IS A LINE FOLLWING THE GENERAL DIRECTION OF THE COAST DRAWN ACROSS THE
MOUTH OF THE RIVER WHATEVER ITS WIDTH.  IF THE RIVER FLOWS INTO AN
ESTUARY, THE RULES APPLICABLE TO BAYS APPLY TO THE ESTUARY. 

"LANDMARKS 

"WHERE PRONOUNCED HEADLANDS EXIST AT TRIBUTARY WATERWAYS, THE
APPROPRIATE LANDMARK IS THE POINT OF INTERSECTION OF THE PLANE OF
ORDINARY LOW WATER WITH THE OUTERMOST EXTENSION OF THE NATURAL
HEADLAND.  WHERE THERE IS NO PRONOUNCED HEADLAND, THE LANDMARK IS THE
POINT OF INTERSECTION OF  THE ORDINARY LOW-WATER MARK WITH A LINE
BISECTING THE ANGLE BETWEEN THE GENERAL TREND LINE OF THE ORDINARY LOW
WATER MARK ALONG THE OPEN COAST AND THE GENERAL TREND LINE OF THE
ORDINARY LOW-WATER MARK ALONG THE SHORE OF THE TRIBUTARY WATERWAY. 

"QUESTION 3:  THE 'ORDINARY LOW-WATER MARK ON THE COAST OF
CALIFORNIA' IS THE INTERSECTION WITH THE SHORELINE (AS IT EXISTS AT THE
TIME OF SURVEY) OF THE PLANE OF THE MEAN OF ALL LOW WATERS, TO BE
ESTABLISHED, SUBJECT TO THE APPROVAL OF THE COURT, BY THE UNITED STATES
COAST & GEODETIC SURVEY FROM OBSERVATIONS MADE OVER A PERIOD OF 18.6
YEARS."  REPORT OF SPECIAL MASTER 2-5 (FOOTNOTE OMITTED). 

FN7  THE SUBMERGED LANDS ACT PROVIDES IN RELEVANT PART:

                                  "AN ACT 

"TO CONFIRM AND ESTABLISH THE TITLES OF THE STATES TO LANDS BENEATH
NAVIGABLE WATERS WITHIN STATE BOUNDARIES AND TO THE NATURAL RESOURCES
WITHIN SUCH LANDS AND WATERS, TO PROVIDE FOR THE USE AND CONTROL OF
SAID LANDS AND RESOURCES, AND TO CONFIRM THE JURISDICTION AND CONTROL
OF THE UNITED STATES OVER THE NATURAL RESOURCES OF THE SEABED OF THE
CONTINENTAL SHELF SEAWARD OF STATE BOUNDARIES. 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THIS ACT MAY BE
CITED AS THE 'SUBMERGED LANDS ACT.' 

                          "TITLE I

               "DEFINITION 

"SEC. 2 (43 U.S.C. SEC. 1301).  WHEN USED IN THIS ACT: 

"(A)  THE TERM 'LANDS BENEATH NAVIGABLE WATERS' MEANS: 

     *         *         * *         * 

"(2)  ALL LANDS PERMANENTLY OR PERIODICALLY COVERED BY TIDAL WATERS
UP TO BUT NOT ABOVE THE LINE OF MEAN HIGH TIDE AND SEAWARD TO A LINE
THREE GEOGRAPHICAL MILES DISTANT FROM THE COAST LINE OF EACH SUCH STATE
AND TO THE BOUNDARY LINE OF EACH SUCH STATE WHERE IN ANY CASE SUCH
BOUNDARY AS IT EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE
UNION, OR AS HERETOFORE APPROVED BY CONGRESS, EXTENDS SEAWARD (OR INTO
THE GULF OF MEXICO) BEYOND THREE GEOGRAPHICAL MILES, AND 

"(3)  ALL FILLED IN, MADE, OR RECLAIMED LANDS WHICH FORMERLY WERE
LANDS BENEATH NAVIGABLE WATERS, AS HEREINABOVE DEFINED; 

"(B)  THE TERM 'BOUNDARIES' INCLUDES THE SEAWARD BOUNDARIES OF A
STATE OR ITS BOUNDARIES IN THE GULF OF MEXICO OR ANY OF THE GREAT LAKES
AS THEY EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE UNION, OR
AS HERETOFORE APPROVED BY THE CONGRESS, OR AS EXTENDED OR CONFIRMED
PURSUANT TO SECTION 4 HEREOF BUT IN NO EVENT SHALL THE TERM
'BOUNDARIES' OR THE TERM 'LANDS BENEATH NAVIGABLE WATERS' BE
INTERPRETED AS EXTENDING FROM THE COAST LINE MORE THAN THREE
GEOGRAPHICAL MILES INTO THE ATLANTIC OCEAN OR THE PACIFIC OCEAN, OR
MORE THAN THREE MARINE LEAGUES INTO THE GULF OF MEXICO; 

"(C)  THE TERM 'COAST LINE' MEANS THE LINE OF ORDINARY LOW WATER
ALONG THAT PORTION OF THE COAST WHICH IS IN DIRECT CONTACT WITH THE
OPEN SEA AND THE LINE MARKING THE SEAWARD LIMIT OF INLAND WATERS: 

     *         *         *         *        *

                                     "TITLE II 

"LANDS BENEATH NAVIGABLE WATERS WITHIN STATE BOUNDARIES 

"SEC. 3 (43 U.S.C. SEC. 1311).  RIGHTS OF THE STATES.  - 

"(A)  IT IS HEREBY DETERMINED AND DECLARED TO BE IN THE PUBLIC
INTEREST THAT (1) TITLE TO AND OWNERSHIP OF THE LANDS BENEATH NAVIGABLE
WATERS WITHIN THE BOUNDARIES OF THE RESPECTIVE STATES, AND THE NATURAL
RESOURCES WITHIN SUCH LANDS AND WATERS, AND (2) THE RIGHT AND POWER TO
MANAGE, ADMINISTER, LEASE, DEVELOP, AND USE THE SAID LANDS AND NATURAL
RESOURCES ALL IN ACCORDANCE WITH APPLICABLE STATE LAW BE, AND THEY ARE
HEREBY, SUBJECT TO THE PROVISIONS HEREOF, RECOGNIZED, CONFIRMED,
ESTABLISHED, AND VESTED IN AND ASSIGNED TO THE RESPECTIVE STATES OR THE
PERSONS WHO WERE ON JUNE 5, 1950, ENTITLED THERETO UNDER THE LAW OF THE
RESPECTIVE STATES IN WHICH THE LAND IS LOCATED, AND THE RESPECTIVE
GRANTEES, LESSEES, OR SUCCESSORS IN INTEREST THEREOF; 

"(B)(1)  THE UNITED STATES HEREBY RELEASES AND RELINQUISHES UNTO SAID
STATES AND PERSONS AFORESAID, EXCEPT AS OTHERWISE RESERVED HEREIN, ALL
RIGHT, TITLE, AND INTEREST OF THE UNITED STATES, IF ANY IT HAS, IN AND
TO ALL SAID LANDS, IMPROVEMENTS, AND NATURAL RESOURCES; 

     *         *         *         *         * 

"SEC. 4 (43 U.S.C. SEC. 1312).  SEAWARD BOUNDARIES.  - THE SEAWARD
BOUNDARY OF EACH ORIGINAL COASTAL STATE IS HEREBY APPROVED AND
CONFIRMED AS A LINE THREE GEOGRAPHICAL MILES DISTANT FROM ITS COAST
LINE OR, IN THE CASE OF THE GREAT LAKES, TO THE INTERNATIONAL
BOUNDARY.  ANY STATE ADMITTED SUBSEQUENT TO THE FORMATION OF THE UNION
WHICH HAS NOT ALREADY DONE SO MAY EXTEND ITS SEAWARD BOUNDARIES TO A
LINE THREE GEOGRAPHICAL MILES DISTANT FROM ITS COAST LINE, OR TO THE
INTERNATIONAL BOUNDARIES OF THE UNITED STATES IN THE GREAT LAKES OR ANY
OTHER BODY OF WATER TRAVERSED BY SUCH BOUNDARIES.  ANY CLAIM HERETOFORE
OR HEREAFTER ASSERTED EITHER BY CONSTITUTIONAL PROVISION, STATUTE, OR
OTHERWISE, INDICATING THE INTENT OF A STATE SO TO EXTEND ITS BOUNDARIES
IS HEREBY APPROVED AND CONFIRMED, WITHOUT PREJUDICE TO ITS CLAIM, IF
ANY IT HAS, THAT ITS BOUNDARIES EXTEND BEYOND THAT LINE.  NOTHING IN
THIS SECTION IS TO BE CONSTRUED AS QUESTIONING OR IN ANY MANNER
PREJUDICING THE EXISTENCE OF ANY STATE'S SEAWARD BOUNDARY BEYOND THREE
GEOGRAPHICAL MILES IF IT WAS SO PROVIDED BY ITS CONSTITUTION OR LAWS
PRIOR TO OR AT THE TIME SUCH STATE BECAME A MEMBER OF THE UNION, OR IF
IT HAS BEEN HERETOFORE APPROVED BY CONGRESS." 

FN8  ONE ENGLISH, STATUTE, OR LAND MILE EQUALS APPROXIMATELY .87
GEOGRAPHICAL, MARINE, OR NAUTICAL MILE.  THE CONVENTIONAL "3-MILE
LIMIT" UNDER INTERNATIONAL LAW REFERS TO THREE GEOGRAPHICAL MILES, OR
APPROXIMATELY 3.45 LAND MILES. 

FN9  S. REP. NO. 133, 83D CONG., 1ST SESS., 18. 

FN10  99 CONG. REC. 4116.  SENATOR ANDERSON PROPOSED A SIMILAR
AMENDMENT WHILE THE BILL WAS IN COMMITTEE.  HEARINGS BEFORE THE SENATE
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS ON S.J. RES. 13 AND OTHER
BILLS, 83D CONG., 1ST SESS., 1348 (HEREINAFTER CITED AS SENATE
HEARINGS).  AFTER DISCUSSION THE PROPOSAL WAS VOTED DOWN, ID., AT
1416. 

FN11  CLOSING BRIEF OF CALIFORNIA 14. 

FN12  SENATE HEARINGS 312-315, 1064-1065, 1085, 1304, 1378. 

FN13  SEE ALSO SENATE HEARINGS 1285 (REMARKS OF SENATOR CORDON). 

FN14  SENATE HEARINGS 275-280. 

FN15  ID., AT 1052. 

FN16  ID., AT 1374-1380. 

FN17  ID., AT 1380-1385. 

FN18  IN THE LATER DEBATES, SENATOR CORDON ANSWERED AN ASSERTION THAT
THE COMMITTEE HAD REJECTED THE BOGGS FORMULA BY SAYING, "THE COMMITTEE,
AS I RECALL, AND I THINK I AM CORRECT, NEITHER ACCEPTED NOR REJECTED
THE BOGGS FORMULA OR ANY OTHER FORMULA."  99 CONG. REC. 2633.  AND SEE
THE MATERIAL QUOTED IN N. 23, INFRA. 

FN19  SEE SENATE HEARINGS 1415 (REMARKS OF SENATOR CORDON). 

FN20  SEE, E.G., 99 CONG. REC. 2881, 2916, 3038-3040, 3549-3564, 3655
3656, 3884-3886, 4085-4086, 4094-4099, 4109. 

FN21  99 CONG. REC. 3655 (REMARKS OF SENATOR KILGORE). 

FN22  99 CONG. REC. 2695, 3039 (REMARKS OF SENATOR DANIEL), 2746
(REMARKS OF SENATOR HOLLAND, 2881 (REMARKS OF SENATOR ANDERSON), 2916
(REMARKS OF SENATORS ANDERSON AND DOUGLAS).  SENATE HEARINGS 957
(REMARKS OF SENATOR HOLLAND). 

FN23  SEVERAL AMENDMENTS WERE OFFERED AND DEFEATED WHICH WOULD HAVE
LIMITED THE GRANT TO THE INTERNATIONAL THREE-MILE LIMIT OR TO THREE
MILES FROM THE SHORELINE AROUND THE ENTIRE COASTAL PERIMETER OF THE
UNITED STATES, THUS CUTTING OFF ANY CLAIMS TO A THREE-LEAGUE LIMIT BY
THE GULF COAST STATES.  SEE 99 CONG. REC. 4157, 4203, 4473-4478.  THE
REASON FOR THE UNACCEPTABILITY OF THESE AMENDMENTS TO THE LEADERS OF
THE MEASURE, LARGELY COMPOSED OF SENATORS FROM THE GULF COAST STATES,
IS OBVIOUS, AND HAD NOTHING TO DO WITH ANY PARTICULAR CONCEPT OF INLAND
WATERS. 

SENATOR DOUGLAS INTRODUCED AMENDMENTS SPECIFICALLY DESIGNED TO
PREVENT STATES FROM CLAIMING AS INLAND WATERS THOSE WATER AREAS BETWEEN
THE MAINLAND AND REMOTE ISLANDS.  SECTION 2(C), AS AMENDED, WOULD HAVE
READ:  "THE TERM 'COAST LINE' MEANS THE LINE OF ORDINARY LOW WATER
ALONG THAT PORTION OF THE COAST OF THE MAIN CONTINENT WHICH IS IN
DIRECT CONTACT WITH THE OPEN SEA AND THE LINE MARKING THE SEAWARD LIMIT
OF INLAND WATERS, AND IN THE CASE OF ANY ISLAND SEAWARD OF SUCH COAST,
MEANS THE LINE OF ORDINARY LOW WATER AROUND SUCH ISLAND."  99 CONG.
REC. 4240.  THE COLLOQUY LEADING TO THE REJECTION OF THESE AMENDMENTS
IS EXTREMELY REVEALING IN THE TOTAL ABSENCE OF HOSTILITY TO THE BASIC
IDEA WHICH SENATOR DOUGLAS WAS PURSUING AND THE ABSENCE OF ANY
UNDERSTANDING BY THE LEADERS OF THE MEASURE THAT IT EMBODIED AN
HISTORICAL DEFINITION OF INLAND WATERS.    "MR. DOUGLAS.  MR.
PRESIDENT, THIS AMENDMENT IS DESIGNED TO CLEAR UP AN AMBIGUITY IN THE
PENDING JOINT RESOLUTION AND TO CONFORM TO WHAT THE DISTINGUISHED
SENATOR FROM FLORIDA (MR.  HOLLAND) THE AUTHOR OF THE JOINT RESOLUTION,
STATED WAS ITS REAL INTENTION. 

"ONE OF THE PROBLEMS CONNECTED WITH THE JOINT RESOLUTION IS THE
PROBLEM OF WHERE THE BASE LINE IS, FROM WHICH THE SUBMERGED LANDS
SEAWARD FROM THE LOW-WATER MARK ARE TO BE MEASURED.  SENATE JOINT
RESOLUTION 13 DEFINES THIS LOCATION AS THE 'COASTLINE,' BUT IT IS NOT
PRECISELY CERTAIN IN MY MIND OR IN THE MIND OF THE SENATOR FROM OREGON
(MR. CORDON) WHOSE INTERPRETATION I REQUESTED, WHAT IS MEANT BY THE
WORD 'COASTLINE.'  IN THE MAIN DEBATE ON THE JOINT RESOLUTION, I
POINTED OUT THAT THIS DEFINITION MIGHT MEAN 1 OF 2 THINGS.  FIRST, IT
MIGHT MEAN, WHAT I HOPED IT WOULD MEAN; NAMELY, THE SHORELINE OF THE
MAIN CONTINENTAL LAND MASS AND THE EXTERNAL LIMITS OF INLAND WATERS;
AND THEN, IN THE CASE OF ISLANDS, THE SHORELINES OF EACH OF THOSE
ISLANDS. 

"BUT I POINTED OUT THAT PROBABLY THERE WOULD BE A CONTRARY CLAIM,
PARTICULARLY IN THE CASE OF CALIFORNIA, AND THAT AN ATTEMPT WOULD BE
MADE TO DEFINE THE TERM 'COASTLINE' AS BEING A LINE DRAWN FROM THE MAIN
CONTINENT OUT TO AND ALONG THE OUTER EDGE OF THE OUTER ISLANDS LYING
OFF THE COAST.  THIS IS A TREMENDOUSLY IMPORTANT SUBJECT.  IT INVOLVES
VERY SUBSTANTIAL AREAS, PARTICULARLY IN THE CASE OF CALIFORNIA.  IF IT
IS THE LATTER DEFINITION WHICH IS TO BE USED, THEN THE WATER BETWEEN
THE REMOTE ISLANDS - HOWEVER FAR OUT - AND THE MAIN CONTINENTAL LAND
MASS WOULD BECOME INLAND WATERS, NOT EXTERNAL WATERS, AND ALL THE
INTERVENING SUBMERGED LANDS WOULD BECOME THE PROPERTY OF THE COASTAL
STATE. 

     *         *         *         *       * 

"MR. LONG.  MR. PRESIDENT, I CAN UNDERSTAND THE ARGUMENT MADE BY THE
SENATOR FROM ILLINOIS, BUT I BELIEVE HIS AMENDMENT COMPLETELY FAILS TO
REACH THE OBJECTIVE HE IS STRIVING TO ACHIEVE. 

"IF ONE EXAMINES THE TESTIMONY OF THE REPRESENTATIVE OF THE
DEPARTMENT OF STATE, HE WILL SEE THAT IT IS THE POSITION OF THE STATE
DEPARTMENT OF THE PRESENT ADMINISTRATION, AS IT WAS ALSO THE POSITION
OF THE PREVIOUS ADMINISTRATION, AND, SO FAR AS I KNOW, OF ALL OTHER
ADMINISTRATIONS, THAT THE MARGINAL SEA BEGINS WHEREVER THE LINE OF
INLAND WATERS ENDS.  THAT IS A VERY SIMPLE POSITION TO TAKE IN THE CASE
OF A STRAIGHT COAST LINE, AS IS THE SITUATION WITH REGARD TO THE STATE
OF TEXAS.  THERE THE SHORE LINE AND THE COAST LINE ARE SYNONYMOUS IN
ALMOST ALL INSTANCES. 

"HOWEVER, THE SITUATION BECOMES MORE COMPLICATED WHEN WE CONSIDER A
COAST HAVING MANY INDENTURES, ISLANDS, SOUNDS, COVES, BAYS, AND THE
LIKE.  AT PRESENT THERE IS A DIFFERENCE OF OPINION BETWEEN THE STATE
GOVERNMENTS AND THE FEDERAL GOVERNMENT AS TO PRECISELY WHERE THE LINE
OF INLAND WATERS IS LOCATED.  BUT IT IS WELL AGREED, AS IT HAS ALWAYS
BEEN AGREED, THAT THE MARGINAL SEA BEGINS AT THE POINT WHERE THE LINE
OF INLAND WATERS ENDS. 

"I SHOULD LIKE TO APPLY THAT DEFINITION TO THE STATE OF LOUISIANA.  I
REGRET THAT I DO NOT HAVE HERE A MAP OF LOUISIANA FOR THE PURPOSE OF
DEMONSTRATING MY POINT, BUT ALL WHO HAVE MADE A STUDY OF THE QUESTION
AGREE THAT A BODY OF WATER KNOWN AS CHANDELEUR SOUND IS INLAND WATER. 
IN THAT AREA THERE IS A LARGE NUMBER OF ISLANDS, EACH ISLAND CLOSE TO
ANOTHER.  IT IS AGREED BY BOTH THE FEDERAL GOVERNMENT AND THE STATE
GOVERNMENT, AND IT HAS ALWAYS BEEN AGREED, THAT CHANDELEUR SOUND IS
INLAND WATER.  THE EFFECT OF THE DOUGLAS AMENDMENT WOULD BE TO MAKE
CHANDELEUR SOUND A PART OF THE HIGH SEAS, ALTHOUGH THE FEDERAL
GOVERNMENT HAS NEVER CONTENDED THAT CHANDELEUR SOUND WAS A PART OF THE
HIGH SEAS, AND THE STATE GOVERNMENT HAS ALWAYS CLAIMED IT WAS INLAND
WATER. 

"LIKEWISE, IN THE CASE OF BAYS, IT IS THE POSITION OF THE STATE
DEPARTMENT THAT BAYS NOT WIDER THAN 10 MILES ARE INLAND WATERS.  THE
DISTANCE OF 10 MILES BETWEEN HEADLANDS ACROSS THE MOUTH OF A BAY MARKS
THE PLACE WHERE THE MARGINAL SEA BEGINS.  THE AMENDMENT OFFERED BY THE
SENATOR FROM ILLINOIS WOULD HAVE THE EFFECT ONCE AGAIN OF DECLARING
SUCH A BAY TO BE A PART OF THE HIGH SEAS, MERELY BECAUSE IT IS WIDER
THAN 6 MILES BETWEEN HEADLANDS. 

"OBVIOUSLY, THE SENATOR FROM ILLINOIS IS SUBMITTING HIS OWN
DEFINITION OF INLAND WATERS.  IN EFFECT, IT IS A DEFINITION OF INLAND
WATERS WHICH DOES NOT HAVE THE SUPPORT OF A SINGLE STATE GOVERNMENT IN
THE UNITED STATES; IT DOES NOT HAVE THE SUPPORT OF THE STATE
DEPARTMENT; IT IS A DEFINITION THAT DOES NOT MEET WITH THE APPROVAL OF
THE DEPARTMENT OF JUSTICE; IT IS A DEFINITION, IN EFFECT, THAT DOES NOT
MEET WITH THE APPROVAL OF A SINGLE DEPARTMENT OF EITHER THE FEDERAL
GOVERNMENT OR THE STATE GOVERNMENTS. 

"THERE IS NO AUTHORITY FOR ACCEPTING THE INFERENCE OF THIS AMENDMENT,
NAMELY, THAT THE DEFINITION OF INLAND WATERS IS THAT THEY BEGIN AT THE
SHORE LINE OR WHERE 3-MILE LINES FROM HEADLANDS INTERSECT IN A BAY. 
THERE IS NO SUPPORT FOR THIS TYPE OF AMENDMENT, OTHER THAN THAT IT
APPEALS TO THE SENATOR FROM ILLINOIS. 

"THE COMMITTEE HAS STRUGGLED WITH THIS PROBLEM.  THE COMMITTEE
STRUGGLED WITH SEVERAL DIFFERENT FORMULAS FOR DEFINING INLAND WATERS. 
ORIGINALLY, THE JOINT RESOLUTION PROVIDED THAT INLAND WATERS SHOULD
INCLUDE ALL BAYS, SOUNDS, STRAITS, AND ESTUARIES.  HOWEVER, THERE WAS
SOME OBJECTION TO THAT DEFINITION BY THE DEPARTMENT OF JUSTICE.  THE
DEPARTMENT OF JUSTICE CONTENDED THAT IT WOULD BE FAR MORE PREFERABLE
NOT TO ATTEMPT TO DEFINE INLAND WATERS, BUT SIMPLY TO USE THE WORDS
'INLAND WATERS,' TO MEET THE STANDARD THAT THOSE WORDS WOULD ORDINARILY
SUGGEST.  THEREFORE, AT THE SUGGESTION OF THE DEPARTMENT OF JUSTICE,
AND I SUPPOSE WITH THE SUPPORT OF THE DEPARTMENT OF STATE, THE WORDS
'INCLUDING ALL BAYS, ESTUARIES, STRAITS, AND SOUNDS,' WERE STRICKEN
FROM THE JOINT RESOLUTION. 

"I SUBMIT THAT THE LANGUAGE OF THE JOINT RESOLUTION IS THE BEST
AGREEMENT THAT COULD BE REACHED, UPON THE ADVICE OF THE COMPETENT
OFFICIALS OF THE STATE DEPARTMENT AND THE JUSTICE DEPARTMENT, AS WELL
AS THE ADVICE THAT THE COMMITTEE HAD AVAILABLE TO IT FROM ALL THE
WITNESSES WHO TESTIFIED, AND THEREFORE WE SHOULD RETAIN THE COMMITTEE
LANGUAGE RATHER THAN ACCEPT THE DEFINITION OF THE SENATOR FROM
ILLINOIS. 

*         *         *         *         * 

"MR. DANIEL.  IS IT NOT TRUE THAT THERE ARE SOME ISLANDS OFF THE MAIN
CONTINENT WHICH ARE NOT AS FAR AS 3 MILES DISTANT, AND THAT THIS
AMENDMENT WOULD CONFUSE THE SITUATION WITH REFERENCE TO THEM?  ...  WE
WOULD HAVE TO APPLY THIS AMENDMENT INSTEAD OF THE PRESENT RULE OF
INLAND WATERS WHICH PERMITS BOTH THE NATION AND THE STATE TO MEASURE
FROM THE OUTER LINE ALONG THOSE ISLANDS. 

     *         *         *         *         * 

"MR. HOLLAND.  ... 

"I THINK I UNDERSTAND WHAT THE SENATOR (DOUGLAS) IS TRYING TO
ATTAIN.  WHAT HE IS TRYING TO ATTAIN IS IN COMPLETE ACCORD WITH THE
BELIEF OF THE SENATOR FROM FLORIDA, THAT ISLANDS WHICH ARE FAR REMOTE
FROM THE COAST, AND CLEAR BEYOND INLAND WATERS BY ANY REASONABLE
CONCEPTION, HAVE A 3-MILE SUBMERGED SHELF AROUND EACH OF THEM; AND
WHILE THAT FACT IS CLEARLY SHOWN IN THE STATEMENT OF INTERNATIONAL LAW
FURNISHED TO THE COMMITTEE IN THE LAST CONGRESS BY THE SECRETARY OF
STATE AT THAT TIME, MR. DEAN ACHESON, THE PROPOSED AMENDMENT WOULD NOT
EFFECTUATE THAT SITUATION AT ALL  ...  ." 

THE AMENDMENT WAS DEFEATED 50 TO 26.  99 CONG. REC. 4240-4243. 

FN24  SEE, E.G., 99 CONG. REC. 3110-3112 (REMARKS OF SENATOR HILL). 

FN25  THE 1947 CASE RAISED THE PURELY LEGAL QUESTION - WHO OWNED THE
LANDS AND MINERAL RIGHTS BENEATH THE MARGINAL SEA BELT?  IN DECIDING
THAT THEY BELONGED TO THE UNITED STATES THE COURT RELIED HEAVILY ON THE
INTERNATIONAL RESPONSIBILITIES OF THE FEDERAL GOVERNMENT. 

"BUT WHATEVER ANY NATION DOES IN THE OPEN SEA, WHICH DETRACTS FROM
ITS COMMON USEFULNESS TO NATIONS, OR WHICH ANOTHER NATION MAY CHARGE
DETRACTS FROM IT, IS A QUESTION FOR CONSIDERATION AMONG NATIONS AS
SUCH, AND NOT THEIR SEPARATE GOVERNMENTAL UNITS.  WHAT THIS GOVERNMENT
DOES, OR EVEN WHAT THE STATES DO, ANYWHERE IN THE OCEAN, IS A SUBJECT
UPON WHICH THE NATION MAY ENTER INTO AND ASSUME TREATY OR SIMILAR
INTERNATIONAL OBLIGATIONS."  332 U.S. 19, 35 (FOOTNOTE OMITTED). 

THE OPINION ALSO ESTABLISHED THAT LANDLOCKED WATERS NOT A PART OF THE
OPEN SEA ARE NOT PART OF THE MARGINAL BELT, AND BELONG TO THE STATES. 
THE ONLY PROBLEM REMAINING IN THE WAY OF ACTUALLY FIXING THE LOCATION
OF THE MARGINAL BELT, AND HENCE THE DIVIDING LINE OF OWNERSHIP BETWEEN
THE STATE AND THE UNITED STATES, WAS THAT OF DETERMINING WHERE THE OPEN
SEA ENDS AND LANDLOCKED WATERS BEGIN.  THE COURT SPECIFICALLY LEFT THAT
QUESTION UNRESOLVED.  IT IS PRECISELY THAT PROBLEM OF DEFINING WHAT
CONSTITUTES OPEN SEA AND WHAT CONSTITUTES INLAND WATERS WHICH WE MUST
DECIDE IN THE PRESENT CASE. 

RESOLUTION OF THAT QUESTION WILL (1) DETERMINE FOR THE PRESENT THE
LOCATION OF THE MARGINAL BELT WHICH WE CLAIM AGAINST OTHER NATIONS, AND
(2) DEFINE THE AREAS WITHIN WHICH SHIPS OF FOREIGN NATIONS HAVE NO
RIGHT OF INNOCENT PASSAGE.  UNQUESTIONABLY, THE DEFINITIONS OF WHAT
CONSTITUTES OPEN SEA AND INLAND WATERS IS, TO BORROW THE WORDS OF THE
1947 OPINION, "A SUBJECT UPON WHICH THE NATION MAY ENTER INTO AND
ASSUME TREATY OR SIMILAR INTERNATIONAL OBLIGATIONS."  NEGOTIATIONS AT
THE HAGUE BEGINNING IN 1930 WERE DIRECTED TO JUST THAT END, AND THE
CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE, TO WHICH WE
BECAME A PARTY IN 1961, NOW ESTABLISHES RULES FOR SEPARATING THE OPEN
SEA FROM INLAND WATERS. 

FN26  LETTER FROM ACTING SECRETARY OF STATE WEBB TO ATTORNEY GENERAL
MCGRATH, NOVEMBER 13, 1951, SENATE HEARINGS 460; LETTER FROM SECRETARY
OF STATE ACHESON TO ATTORNEY GENERAL MCGRATH, FEBRUARY 12, 1952, SENATE
HEARINGS 462. 

FN27  SEE N. 5, SUPRA.  NEITHER THE SPECIAL MASTER NOR THE UNITED
STATES TREATED THE BOGGS FORMULA AS HAVING BEEN THE "DEFINITIVE" UNITED
STATES POSITION.  THE SPECIAL MASTER RECOMMENDED IT AS AN "APPROPRIATE
TECHNICAL METHOD" FOR MEASURING THE SUFFICIENCY OF THE DEPTH OF BAYS. 
REPORT OF SPECIAL MASTER 26. 

FN28  SEE N. 34, INFRA. 

FN29  LETTER FROM DEAN RUSK, SECRETARY OF STATE, TO ROBERT KENNEDY,
ATTORNEY GENERAL, JANUARY 15, 1963, II INTERNATIONAL LEGAL MATERIALS
527. 

FN30  SEE DISCUSSION AND LEGISLATIVE HISTORY, PART II, SUPRA. 

FN31  SEE 99 CONG. REC. 2633 (REMARKS OF SENATORS LONG AND CORDON). 

FN32  THE CONVENTION WAS APPROVED BY THE SENATE MAY 26, 1960, 106
CONG. REC. 11196, AND WAS RATIFIED BY THE PRESIDENT MARCH 24, 1961, 44
STATE DEPT. BULL.  609.  SEE TREATIES IN FORCE - JANUARY 1, 1965, 263. 

FN33  IN SUPPORT OF THE POSITION THAT WE SHOULD IGNORE THE
DEVELOPMENTS IN THE LAW AND PRACTICE OF NATIONS RESPECTING THE CONCEPT
OF INLAND WATERS WHICH HAVE TRANSPIRED SUBSEQUENT TO THE PASSAGE OF THE
SUBMERGED LANDS ACT - A POSITION WHICH THE SOLICITOR GENERAL FRANKLY
RECOGNIZED IN HIS ORAL PRESENTATION WAS NOT AN EASY ONE FOR THE
GOVERNMENT TO MAINTAIN - THE UNITED STATES CITES A STATEMENT MADE BY
SENATOR CORDON DURING THE HEARINGS. 

"THOSE WHO PREPARED THE BILL OVER THE YEARS TOOK THE VIEW - AND THAT
IS THE WAY THE BILL IS BEFORE US - THAT 'COASTLINE' MEANS THE LINE OF
ORDINARY LOW WATER ALONG THAT PORTION OF THE COAST WHICH IS IN DIRECT
CONTACT WITH THE OPEN SEA AND THE LINE MARKING THE SEAWARD LIMIT OF
INLAND WATERS.  THAT IS IN THE PRESENT TENSE.  IT IS THE COASTLINE AS
OF NOW.  WE HAVE CONFIRMED HERE 3 MILES FROM THE COASTLINE AS OF NOW
...  . 

"IF WE ATTEMPT NOW TO DISCUSS A COASTLINE OF 1783, OR WHENEVER THE
REVOLUTIONARY WAR WAS CONCLUDED AND THE TREATY WAS SIGNED - AND I DO
NOT JUST NOW RECALL THE DATE - IF WE ATTEMPT NOW TO DETERMINE A
COASTLINE AS OF THEN, IT WOULD SEEM TO ME THAT WE INCREASE OUR
DIFFICULTIES BEYOND WHAT, AS I UNDERSTAND THE BILL, WE ENVISIONED IN
THE FIRST PLACE, BUT WHICH WE LEFT WHERE THEY WERE."  SENATE HEARINGS
1354-1355. 

THAT STATEMENT WAS MADE IN REPLY TO A SUGGESTION THAT A STATE SHOULD
HAVE THE CHOICE OF EXTENDING ITS BOUNDARIES THREE MILES FROM ITS
PRESENT COASTLINE OR THREE MILES FROM ITS COASTLINE AS OF THE TIME IT
ENTERED THE UNION.  SENATOR CORDON'S REPLY EXPRESSES HIS OPPOSITION TO
THAT IDEA ON THE GROUND THAT THE EXACT LOCATION OF THE ANCIENT
SHORELINE WOULD BE EXTREMELY DIFFICULT TO DETERMINE.  IT REVEALS NO
INTENT TO RESTRICT THE COURTS IN FRAMING THE DEFINITIONS TO BE USED TO
DETERMINE THE PRESENT COASTLINE. 

FN34  ARTICLE 4 OF THE CONVENTION PROVIDES: 

"1.  IN LOCALITIES WHERE THE COAST LINE IS DEEPLY INDENTED AND CUT
INTO, OR IF THERE IS A FRINGE OF ISLANDS ALONG THE COAST IN ITS
IMMEDIATE VICINITY, THE METHOD OF STRAIGHT BASELINES JOINING
APPROPRIATE POINTS MAY BE EMPLOYED IN DRAWING THE BASELINE FROM WHICH
THE BREADTH OF THE TERRITORIAL SEA IS MEASURED. 

"2.  THE DRAWING OF SUCH BASELINES MUST NOT DEPART TO ANY APPRECIABLE
EXTENT FROM THE GENERAL DIRECTION OF THE COAST, AND THE SEA AREAS LYING
WITHIN THE LINES MUST BE SUFFICIENTLY CLOSELY LINKED TO THE LAND DOMAIN
TO BE SUBJECT TO THE REGIME OF INTERNAL WATERS. 

"3.  BASELINES SHALL NOT BE DRAWN TO AND FROM LOW-TIDE ELEVATIONS,
UNLESS LIGHTHOUSES OR SIMILAR INSTALLATIONS WHICH ARE PERMANENTLY ABOVE
SEA LEVEL HAVE BEEN BUILT ON THEM. 

"4.  WHERE THE METHOD OF STRAIGHT BASELINES IS APPLICABLE UNDER THE
PROVISIONS OF PARAGRAPH 1, ACCOUNT MAY BE TAKEN, IN DETERMINING
PARTICULAR BASELINES, OF ECONOMIC INTERESTS PECULIAR TO THE REGION
CONCERNED, THE REALITY AND THE IMPORTANCE OF WHICH ARE CLEARLY
EVIDENCED BY A LONG USAGE.    "5.  THE SYSTEM OF STRAIGHT BASELINES MAY
NOT BE APPLIED BY A STATE IN SUCH A MANNER AS TO CUT OFF FROM THE HIGH
SEAS THE TERRITORIAL SEA OF ANOTHER STATE. 

"6.  THE COASTAL STATE MUST CLEARLY INDICATE STRAIGHT BASELINES ON
CHARTS, TO WHICH DUE PUBLICITY MUST BE GIVEN." 

FN35  LETTER FROM DEAN RUSK, SECRETARY OF STATE, TO ROBERT KENNEDY,
ATTORNEY GENERAL, JANUARY 15, 1963, II INTERNATIONAL LEGAL MATERIALS
527; BRIEF FOR THE UNITED STATES IN ANSWER TO CALIFORNIA'S EXCEPTIONS
148. 

FN36  THE FULL TEXT OF ARTICLE 7 IS AS FOLLOWS:    "1.  THIS ARTICLE
RELATES ONLY TO BAYS THE COASTS OF WHICH BELONG TO A SINGLE STATE. 

"2.  FOR THE PURPOSES OF THESE ARTICLES, A BAY IS A WELL-MARKED
INDENTATION WHOSE PENETRATION IS IN SUCH PROPORTION TO THE WIDTH OF ITS
MOUTH AS TO CONTAIN LANDLOCKED WATERS AND CONSTITUTE MORE THAN A MERE
CURVATURE OF THE COAST.  AN INDENTATION SHALL NOT, HOWEVER, BE REGARDED
AS A BAY UNLESS ITS AREA IS AS LARGE AS, OR LARGER THAN, THAT OF THE
SEMI-CIRCLE WHOSE DIAMETER IS A LINE DRAWN ACROSS THE MOUTH OF THAT
INDENTATION. 

"3.  FOR THE PURPOSE OF MEASUREMENT, THE AREA OF AN INDENTATION IS
THAT LYING BETWEEN THE LOW-WATER MARK AROUND THE SHORE OF THE
INDENTATION AND A LINE JOINING THE LOW-WATER MARKS OF ITS NATURAL
ENTRANCE POINTS.  WHERE, BECAUSE OF THE PRESENCE OF ISLANDS, AN
INDENTATION HAS MORE THAN ONE MOUTH, THE SEMI-CIRCLE SHALL BE DRAWN ON
A LINE AS LONG AS THE SUM TOTAL OF THE LENGTHS OF THE LINES ACROSS THE
DIFFERENT MOUTHS.  ISLANDS WITHIN AN INDENTATION SHALL BE INCLUDED AS
IF THEY WERE PART OF THE WATER AREAS OF THE INDENTATION. 

"4.  IF THE DISTANCE BETWEEN THE LOW-WATER MARKS OF THE NATURAL
ENTRANCE POINTS OF A BAY DOES NOT EXCEED TWENTY-FOUR MILES, A CLOSING
LINE MAY BE DRAWN BETWEEN THESE TWO LOW-WATER MARKS, AND THE WATERS
ENCLOSED THEREBY SHALL BE CONSIDERED AS INTERNAL WATERS. 

"5.  WHERE THE DISTANCE BETWEEN THE LOW-WATER MARKS OF THE NATURAL
ENTRANCE POINTS OF A BAY EXCEEDS TWENTY-FOUR MILES, A STRAIGHT BASELINE
OF TWENTY-FOUR MILES SHALL BE DRAWN WITHIN THE BAY IN SUCH A MANNER AS
TO ENCLOSE THE MAXIMUM AREA OF WATER THAT IS POSSIBLE WITH A LINE OF
THAT LENGTH. 

"6.  THE FOREGOING PROVISIONS SHALL NOT APPLY TO SO-CALLED 'HISTORIC'
BAYS, OR IN ANY CASE WHERE THE STRAIGHT BASELINE SYSTEM PROVIDED FOR IN
ARTICLE 4 IS APPLIED." 

FN37  THE PARTIES STATED THAT CRESCENT CITY BAY IS NO LONGER AN AREA
IN DISPUTE. 

FN38  THE UNITED STATES ASSERTS THAT "INTERNATIONAL LAW RECOGNIZES NO
PRINCIPLE OF 'FICTITIOUS BAYS.'"  WE FIND IT UNNECESSARY TO DECIDE THAT
QUESTION.  THE GOVERNMENT STATES: 

"THE EXPRESSION SEEMS TO HAVE ORIGINATED IN A PROPOSAL BY THE
COMMITTEE OF EXPERTS, MADE TO THE FIFTH SESSION OF THE INTERNATIONAL
LAW COMMISSION, SUGGESTING A 10-MILE RULE FOR BAYS, A GENERAL 10-MILE
LIMIT FOR STRAIGHT BASELINES, PROVIDING THAT BASELINES SHOULD NOT BE
DRAWN TO ISLANDS MORE THAN 5 MILES FROM SHORE, AND LIMITING BASELINES
TO 5 MILES IN GROUPS OF ISLANDS OR BETWEEN SUCH GROUPS AND THE
MAINLAND, EXCEPT THAT IN SUCH A GROUP ONE OPENING COULD BE 10 MILES. 
THE LATTER SITUATION WAS CALLED A 'FICTITIOUS BAY.'  THE SPECIAL
RAPPORTEUR ADOPTED THIS PROPOSAL IN AN ADDENDUM TO THE SECOND REPORT ON
THE REGIME OF THE TERRITORIAL SEA, INTERNATIONAL LAW COMMISSION, FIFTH
SESSION, 18 MAY 1953.  ENGLISH TEXT, U.N. DOC. A/CN.4/61/ADD.1, P. 7
AND ANNEX, P. 4.  THE SUBJECT OF GROUPS OF ISLANDS WAS POSTPONED BY THE
COMMISSION IN 1954 (ARTICLE 11, REPORT OF THE INTERNATIONAL LAW
COMMISSION COVERING THE WORK OF ITS SIXTH SESSION (U.N. DOC.
A/CN.4/88), P. 42), AND THERE IS NO SPECIAL PROVISION ON THE SUBJECT IN
THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE AS
FINALLY ADOPTED.  THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE
WORK OF ITS EIGHTH SESSION, P. 45, FN. 1 (U.N. DOC. A/C.6/L.378), MAKES
CLEAR THAT THE ORIGINAL PROPOSAL ON THE SUBJECT WAS AN ATTEMPT TO
FORMULATE A RULE AND NOT AN EXPRESSION OF A RULE ALREADY IN
EXISTENCE."  BRIEF FOR THE UNITED STATES IN ANSWER TO CALIFORNIA'S
EXCEPTIONS 149-150, N. 112. 

THE OPENINGS AT THE ENDS OF THE SANTA BARBARA CHANNEL ARE 11 MILES
AND 21 MILES. 

FN39  SEE LETTER FROM ACTING SECRETARY OF STATE WEBB TO ATTORNEY
GENERAL MCGRATH, NOVEMBER 13, 1951.  SENATE HEARINGS 460.  SEE ALSO
SENATE HEARINGS 1084-1085 (REMARKS OF JACK B. TATE). 

FN40  THE DEPTH IN GENERAL RANGES BETWEEN 6 AND 12 FEET ACCORDING TO
COAST AND GEODETIC SURVEY CHART NO. 1270, BUT THERE IS NO PASSAGE AS
MUCH AS 12 FEET DEEP CONNECTING THE ENDS OF THE SOUNDS.  THE SOUNDS ARE
"NAVIGABLE WATERS" IN THE LEGAL SENSE EVEN IN THE PARTS TOO SHALLOW FOR
NAVIGATION.  SEE UNITED STATES V. TURNER, 175 F.2D 644, 647, CERT.
DENIED, 338 U.S. 851. 

FN41  TESTIMONY BEFORE THE SPECIAL MASTER INDICATED THAT THE CHANNEL
PROVIDED A SUBSTANTIAL AMOUNT OF PROTECTION FROM THE ROUGH SEAS OF THE
PACIFIC AND WAS USED AS AN ALTERNATE ROUTE OF PASSAGE FOR SHIPS "COMING
DOWN FROM THE PACIFIC NORTHWEST."  (TR. 595.  SEE ALSO TR. 608.)  IN
ITS APPENDIX, P. 57, CALIFORNIA POINTS TO A STATEMENT IN DAVIDSON,
COAST PILOT OF CALIFORNIA, OREGON, AND WASHINGTON (4TH ED. 1889), P.
53, "THE ISLANDS BREAK THE FORCE OF THE LARGE WESTERLY SWELL OF THE
PACIFIC ALONG THE COAST-LINE, AND IN WINTER AFFORD GOOD LEE FROM THE
FULL FORCE OF THE SOUTHEAST GALES." 

FN42  SEE ART. 7, SEC. 6, SUPRA, N. 36. 

FN43  SEE GENERALLY, JURIDICAL REGIME OF HISTORIC WATERS, INCLUDING
HISTORIC BAYS, U.N. DOC. A/CN.4/143 (1962). 

FN44  ARTICLE XII OF THE CALIFORNIA CONSTITUTION OF 1849 DESCRIBED
THE SEA BOUNDARY OF THE STATE OF CALIFORNIA AS FOLLOWS: 

"  ...  THENCE RUNNING WEST AND ALONG SAID BOUNDARY LINE TO THE
PACIFIC OCEAN, AND EXTENDING THEREIN THREE ENGLISH MILES; THENCE
RUNNING IN A NORTHWESTERLY DIRECTION AND FOLLOWING THE DIRECTION OF THE
PACIFIC COAST TO THE 42D DEGREE OF NORTH LATITUDE, THENCE ON THE LINE
OF SAID 42D DEGREE OF NORTH LATITUDE TO THE PLACE OF BEGINNING.  ALSO
ALL THE ISLANDS, HARBORS, AND BAYS, ALONG AND ADJACENT TO THE PACIFIC
COAST." 

FN45  OCEAN INDUSTRIES, INC. V. SUPERIOR COURT, 200 CAL. 235, 252 P.
722 (1927); OCEAN INDUSTRIES, INC. V. GREENE, 15 F.2D 862 (D.C.N.D.
CAL. 1926)(MONTEREY BAY).  PEOPLE V. STRALLA, 14 CAL. 2D 617, 96 P.2D
941 (1939)(SANTA MONICA BAY).  UNITED STATES V. CARILLO, 13 F. SUPP.
121 (1935)(SAN PEDRO BAY). 

FN46  HISTORIC BAYS, U.N. DOC. A/CN.13/1 (1957), AND JURIDICAL REGIME
OF HISTORIC WATERS, INCLUDING HISTORIC BAYS, U.N. DOC. A/CN.4/143
(1962). 

FN47  E.G., FOR SAN DIEGO COUNTY, SEE CAL. STAT. 1850, C. 15, SEC. 2,
P. 58; CAL. STAT.  1851, C. 14, SEC. 2, P. 172; CAL. POLITICAL CODE
1872, SECS. 3907, 3944; CAL. POLITICAL CODE 1923, SEC. 3945; CAL. STAT.
1919, C. 470, SEC. 38, P. 895; CAL. STAT. 1923, C. 160, SEC. 38, P.
361; CAL. GOVT. CODE SEC. 23137; CAL. STAT. 1947, C. 424, P. 1069.  FOR
LOS ANGELES COUNTY, SEE CAL. STAT. 1850, C. 15, SEC. 3, P. 59; CAL.
STAT. 1851, C. 14, SEC. 3, P. 172; CAL. STAT. 1856, C. 46, SEC. 1, P.
53; CAL. POLITICAL CODE 1872, SEC. 3945; CAL. STAT. 1919, C. 470, SEC.
20, P. 877; CAL.  POLITICAL CODE 1923, SEC. 3927; CAL. STAT. 1923, C.
160, SEC. 20, P. 343; CAL. GOVT. CODE SEC. 23119; CAL. STAT. 1947, C.
424, P. 1055. 

FN48  SEE GENERALLY, JURIDICAL REGIME OF HISTORIC WATERS, INCLUDING
HISTORIC BAYS, U.N. DOC. A/CN.4/143, PARAS. 80-105 (1962). 

FN49  THE UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF
CALIFORNIA PARTICIPATED AS AN AMICUS CURIAE IN THE STRALLA CASE AND
SUPPORTED THE POSITION OF CALIFORNIA.  WE DO NOT CONSIDER THIS ACTION
SO SIGNIFICANT AS TO FORECLOSE THE UNITED STATES IN THE CONTROVERSY
BEFORE US.  COMPARE THE DISCUSSION OF ACTIONS TAKEN BY THE SECRETARY OF
THE INTERIOR IN UNITED STATES V. CALIFORNIA, 332 U.S. 19, 39-40. 

FN50  SEE, E.G., 99 CONG. REC. 2697 (REMARKS OF SENATOR CORDON);
SENATE HEARINGS 1344-1345, 1353-1358, 1374. 

FN51  SEE, E.G., STATEMENT OF ROBERT MOSES AND THE DISCUSSION
FOLLOWING IT.  SENATE HEARINGS 137. 

THE UNITED STATES POINTS BY ANALOGY TO JUDICIAL INTERPRETATIONS OF
THE SWAMP LAND ACT OF 1850, 9 STAT. 519, TO THE EFFECT THAT IT GRANTED
ONLY THOSE LANDS WHICH WERE SWAMP AT THE DATE OF ITS PASSAGE.  HOWEVER,
THE TERMS OF THAT ACT WERE SPECIFIC:  "  ...  THOSE SWAMP AND
OVERFLOWED LANDS ...  WHICH SHALL REMAIN UNSOLD AT THE PASSAGE OF THIS
ACT, SHALL BE, AND THE SAME ARE HEREBY, GRANTED  ...  "; AND IT GRANTED
LANDS SOVEREIGNTY OVER WHICH HAD NEVER BEEN THOUGHT TO CHANGE BECAUSE
THE NATURE OF THE LAND CHANGED. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

IN 1947 IN UNITED STATES V. CALIFORNIA, 332 U.S. 19, THIS COURT HELD
THAT THE UNITED STATES HAD PARAMOUNT RIGHTS IN THE WATERS AND SUBMERGED
LANDS LYING ADJACENT TO ITS COASTLINES.  A SPECIAL MASTER WAS APPOINTED
TO APPLY THE RULE OF THAT CASE TO SEGMENTS OF SUBMERGED LAND OFF THE
MAINLAND OF CALIFORNIA.  IN 1953 CONGRESS, BELIEVING THAT THIS COURT'S
DECISION UNFAIRLY DENIED TO THE COASTAL STATES SUBMERGED LANDS WITHIN
THEIR HISTORIC BOUNDARIES, PASSED THE SUBMERGED LANDS ACT TO UPSET THAT
DECISION AND RESTORE TO THE STATES WHAT CONGRESS BELIEVED HAD
HISTORICALLY AND RIGHTFULLY BEEN THEIRS.  THE COURT TODAY DECIDES THIS
CASE ON THE BASIS OF THE 13-YEAR-OLD MASTER'S REPORT WHICH ATTEMPTED TO
CARRY OUT THE 1947 CALIFORNIA OPINION AND DECREE.  INSTEAD OF RELYING
ON THAT 1952 REPORT, WHICH WAS BASED ON A DECISION WHICH CONGRESS IN
1953 FORCEFULLY AND EMPHATICALLY REJECTED IN THE SUBMERGED LANDS ACT, I
WOULD REFER THIS CASE TO A MASTER FOR NEW HEARINGS, FINDINGS AND
RECOMMENDATIONS TO BE MADE IN LIGHT OF THE SUBMERGED LANDS ACT, THE
CONTROLLING STATUTORY LAW AS IT NOW EXISTS. 

                                          I. 

THE ISSUE IN THIS CASE IS WHETHER CALIFORNIA OR THE UNITED STATES IS
THE OWNER OF SEVEN SEGMENTS OF LAND LYING UNDER THE SEA OFF THE
MAINLAND OF CALIFORNIA.  (FN1)  MOST OF THE SEGMENTS LIE UNDER OR
OUTSIDE WHAT ARE CALLED BAYS IN POPULAR USAGE, AND AS TO THEM THE
QUESTION IS WHETHER AND HOW MUCH OF THE LAND UNDERLYING THEM AND THE
MARGINAL SEA BEYOND BELONGS TO CALIFORNIA.  (FN2)  ONE LARGE SEGMENT,
WHICH ALSO INCLUDES TWO OF THE BAYS IN ISSUE, TOUCHES THE SEA OPPOSITE
A CHAIN OF ISLANDS WHICH LIE UP TO APPROXIMATELY 50 MILES OFF THE
MAINLAND, SEPARATED BY THE SANTA BARBARA CHANNEL, THE SAN PEDRO
CHANNEL, AND THE GULF OF SANTA CATALINA.  (FN3)  AS TO THAT SEGMENT,
CALIFORNIA CLAIMS OWNERSHIP OF THE SEA BOTTOM UNDER THE WATER
SEPARATING THE ISLANDS FROM THE MAINLAND AND THREE MILES BEYOND THE
ISLANDS, WHILE THE UNITED STATES ARGUES THAT CALIFORNIA OWNS ONLY A
STRIP THREE GEOGRAPHIC MILES WIDE AROUND EACH ISLAND AND ONE EXTENDING
THREE GEOGRAPHIC MILES FROM THE MAINLAND SHORE, WITH THE INTERVENING
SUBMERGED LAND ALL BELONGING TO THE FEDERAL GOVERNMENT.  IN ORDER TO
UNDERSTAND THE PRESENT CONTENTIONS OF THE PARTIES, IT IS NECESSARY TO
GO BACK TO THE YEARS BEFORE 1945, THE YEAR IN WHICH THE DISPUTE OF
WHICH THE PRESENT CONTROVERSY IS AN AFTERMATH CAME BEFORE THIS COURT. 

FOR MANY DECADES SOME OF THE STATES BORDERING ON THE SEA HAD CLAIMED
DOMINION OVER WATER AND SUBMERGED LANDS LYING OFF THEIR SHORES.  THEIR
CLAIMS USUALLY WERE STATED AS EXTENDING INTO THE OPEN SEA A DISTANCE OF
THREE STATUTE MILES, THREE GEOGRAPHIC MILES, OR THREE MARINE LEAGUES
FROM THEIR "COAST LINES."  (FN4)  BUT "COAST LINE," AS THE TERM WAS
USED IN MANY SUCH CLAIMS, AND AS IT IS USED IN MODERN GEOGRAPHIC
DESCRIPTIONS, DOES NOT MEAN SIMPLY THE LOW-WATER MARK OF THE MAINLAND
SHORE; RATHER, IT MEANS A LEGALLY RECOGNIZED LINE WHICH FOLLOWS THE LOW
WATER MARK OF THE SHORE WHERE THE SHORE IS RELATIVELY STRAIGHT AND
FACING OPEN SEA, AND WHICH AT OTHER POINTS FOLLOWS THE RECOGNIZED
OUTSIDE LIMITS OF "INLAND WATERS," WHICH FLOW INTO THE SEA OR FORM
INDENTATIONS IN THE LAND.  SUCH "INLAND WATERS" MAY INCLUDE CERTAIN
ESTUARIES, BAYS AND HARBORS, AND WATERS BETWEEN A MAINLAND AND OFFSHORE
ISLANDS. 

FOR MANY YEARS THE FEDERAL GOVERNMENT RAISED NO OBJECTION TO THE
VARIOUS STATES' CLAIMS THAT THEIR BOUNDARIES, INCLUDING CLAIMS TO THE
MARGINAL SEA, EXTENDED OUTWARD FOR VARIOUS DISTANCES INTO THE SEA. 
HOWEVER, BY THE 1930'S IT BECAME APPARENT THAT THE SUBMERGED LANDS OFF
THE SHORES OF CERTAIN STATES CONTAINED RICH AND VALUABLE OIL RESERVES
AND OTHER NATURAL RESOURCES.  IN THE LATE 1930'S IT WAS FOR THE FIRST
TIME ASSERTED THAT IN SPITE OF THE STATES' HISTORIC CLAIMS THE UNITED
STATES, AND NOT THE RESPECTIVE COASTAL STATES, WAS THE OWNER OF ALL
SUBMERGED LANDS LYING BOTH WITHIN AND WITHOUT THE THREE-MILE LIMITS,
EXCEPT FOR LAND UNDER "INLAND WATERS."  (FN5)  CALIFORNIA AND OTHER
STATES CLAIMED THAT THEY WERE THE OWNERS OF ALL SUBMERGED LANDS WITHIN
THEIR HISTORIC BOUNDARIES DATING BACK TO THEIR RESPECTIVE ADMISSIONS TO
THE UNION, INCLUDING OF COURSE BOTH HISTORIC INLAND WATERS AND A THREE
MILE OR THREE-LEAGUE STRIP OF MARGINAL SEA BEYOND.  TO SETTLE THIS
CONTROVERSY THE UNITED STATES IN 1945 BROUGHT IN THIS COURT THE ACTION
AGAINST CALIFORNIA OF WHICH TODAY'S DECISION IS AN AFTERMATH, ALLEGING
THAT THE UNITED STATES WAS "THE OWNER IN FEE SIMPLE OF, OR POSSESSED OF
PARAMOUNT RIGHTS IN AND POWERS OVER, THE LANDS, MINERALS AND OTHER
THINGS OF VALUE UNDERLYING THE PACIFIC OCEAN, LYING SEAWARD OF THE
ORDINARY LOW WATER MARK ON THE COAST OF CALIFORNIA AND OUTSIDE OF THE
INLAND WATERS OF THE STATE, EXTENDING SEAWARD THREE NAUTICAL MILES ...
."  CALIFORNIA OBJECTED IMMEDIATELY THAT THE COMPLAINT WAS VAGUE
BECAUSE THE GOVERNMENT DID NOT MAKE CLEAR HOW BROADLY OR NARROWLY IT
DEFINED "INLAND WATERS."  CALIFORNIA ALSO ANSWERED THAT ITS HISTORIC
BOUNDARIES AS SET OUT IN ITS CONSTITUTION IN 1849, APPROVED WHEN IT WAS
ADMITTED TO THE UNION, INCLUDED NOT ONLY A STRIP OUT TO THREE MILES
FROM ITS COAST, BUT ALSO " ALL THE ISLANDS, HARBORS, AND BAYS ALONG AND
ADJACENT TO THE PACIFIC COAST," AND THAT THEREFORE "ALL LANDS UNDER ALL
NAVIGABLE WATERS WITHIN THE BOUNDARIES OF THE STATE" BELONGED TO IT.
THIS COURT THEN HELD IN 1947 IN UNITED STATES V. CALIFORNIA, 332 U.S.
19, THAT THE UNITED STATES AND NOT CALIFORNIA HAD PARAMOUNT RIGHTS IN
ALL THE WATERS AND SUBMERGED LANDS WITHIN THE THREE-MILE BELT OF
MARGINAL SEA "OUTSIDE OF THE INLAND WATERS."  332 U.S. 804, 805.  SEE
ALSO UNITED STATES V. LOUISIANA, 339 U.S. 699; UNITED STATES V. TEXAS,
339 U.S. 707.  AS FOR THE PROBLEM OF DECIDING WHAT WERE INLAND WATERS
AND WHAT WERE NOT, AND OF DRAWING AN EXACT DEMARCATION BETWEEN THE
INLAND WATERS AND A THREE-MILE STRIP OF MARGINAL SEA, THIS COURT SAID
THAT "THERE IS NO REASON WHY, AFTER DETERMINING IN GENERAL WHO OWNS THE
THREE-MILE BELT HERE INVOLVED, THE COURT MIGHT NOT LATER, IF NECESSARY,
HAVE MORE DETAILED HEARINGS IN ORDER TO DETERMINE WITH GREATER
DEFINITENESS PARTICULAR SEGMENTS OF THE BOUNDARY."  332 U.S., AT 26. 

IT WAS NOT LONG BEFORE SUCH HEARINGS DID BECOME NECESSARY, FOR THE
UNITED STATES AND CALIFORNIA FOUND THEMSELVES IN SHARP DISAGREEMENT AS
TO WHAT THE TERM "INLAND WATERS" MEANT WHEN APPLIED TO SPECIFIC
SEGMENTS OF THE CALIFORNIA COAST.  BOTH PARTIES ASSUMED AT THAT TIME,
LONG BEFORE THE SUBMERGED LANDS ACT WAS PASSED, THAT THE TERM WAS TO BE
GIVEN A CONTENT DERIVED FROM THE USAGE OF INTERNATIONAL LAW AND THE
UNITED STATES' FOREIGN RELATIONS, SINCE THE CALIFORNIA DECISION IN
UPHOLDING THE CLAIM OF THE UNITED STATES TO LAND UNDER THE THREE-MILE
BELT OF MARGINAL SEA HAD RELIED ON THE NECESSITY OF FEDERAL PROTECTION
AND CONTROL OF THE TERRITORIAL SEAS AS AN INCIDENT OF NATIONAL
SOVEREIGNTY.  BUT THE DOCTRINES OF INTERNATIONAL LAW WERE SO CONFUSED
AND CONTRADICTORY AS TO EXACTLY WHAT MEASUREMENTS A BAY MUST HAVE TO BE
INLAND WATER, AND UNDER WHAT CONDITIONS A CHANNEL BETWEEN ISLANDS AND
THE MAINLAND WAS INLAND WATER, THAT BOTH SIDES WERE ABLE TO FIND
PRECEDENTS SUPPORTING THEM.  THIS COURT THEREFORE SUBMITTED THE CASE TO
A SPECIAL MASTER TO MAKE FINDINGS OF FACT AND RECOMMENDATIONS OF LAW AS
TO WHETHER EACH OF SEVEN SEGMENTS OF SUBMERGED LAND OFF THE MAINLAND OF
CALIFORNIA, THE SAME SEVEN NOW IN DISPUTE, SHOULD BE TREATED AS "INLAND
WATERS" WITHIN THE MEANING OF THE CALIFORNIA OPINION AND DECREE, AND
THEREFORE THE PROPERTY OF THE STATE.  (FN6) 342 U.S. 891.  ON OCTOBER
14, 1952, THE MASTER FILED HIS REPORT, 344 U.S. 872, IN WHICH HE SAID
HE ASSUMED THAT THE TEST OF WHETHER THE LAND INDISPUTE BELONGED TO
CALIFORNIA DEPENDED ON WHETHER IT WAS INLAND WATER "BY (1) ANY
CUSTOMARY, GENERALLY RECOGNIZED RULE OF INTERNATIONAL LAW  ...  OR BY
(2) EFFECTIVE ASSERTION BY THE UNITED STATES ON ITS OWN BEHALF IN ITS
INTERNATIONAL RELATIONS."  HE THUS CONSIDERED ANY CLAIM BASED ON THE
HISTORIC BOUNDARIES OF THE STATE AS TOTALLY IRRELEVANT, AS HAVING BEEN
REJECTED IN THIS COURT'S 1947 OPINION, AND HE RULED IN SUBSTANCE THAT
THE UNITED STATES WAS THE OWNER OF THE SUBMERGED LANDS IN QUESTION TO
THE EXTENT IT CLAIMED.  WHETHER THE TEST HE USED CORRECTLY INTERPRETED
THE OPINION NEED NOT CONCERN US AT THIS POINT.  CALIFORNIA OF COURSE
FILED EXCEPTIONS, AS DID THE UNITED STATES.  THEN IN 1953 CONGRESS
ENTERED THE PICTURE BY PASSING THE SUBMERGED LANDS ACT, AND FOR MORE
THAN 10 YEARS, DURING WHICH NEITHER OF THE PARTIES TOOK ANY FURTHER
STEPS IN THIS COURT AND THE MASTER'S REPORT LAY DORMANT, IT APPEARED
THAT THE ACT OF CONGRESS HAD DETERMINED THE DISPUTE. 

THE SUBMERGED LANDS ACT OF 1953 (FN7) GAVE TO THE COASTAL STATES
"TITLE TO AND OWNERSHIP OF THE LANDS BENEATH NAVIGABLE WATERS WITHIN
THE BOUNDARIES OF THE RESPECTIVE STATES, AND THE NATURAL RESOURCES
WITHIN SUCH LANDS AND WATERS  ...  ."  (FN8)  IT DEFINED "LANDS BENEATH
NAVIGABLE WATERS" AS ALL SUBMERGED LAND LYING WITHIN THREE GEOGRAPHIC
MILES SEAWARD OF THE "COAST LINE" OF THE STATE, (FN9) WHICH WAS IN TURN
STATED TO BE THE LOW-WATER MARK WHERE THE MAINLAND WAS IN DIRECT
CONTACT WITH THE OPEN SEA, AND ELSEWHERE THE SEAWARD LIMIT OF THE
"INLAND WATERS."  (FN10)  THE ACT SAID, IN LANGUAGE OF EXTREME
IMPORTANCE TO THE RESOLUTION OF THE PRESENT DISPUTE AT THE PRESENT
TIME, THAT EACH STATE WAS TO HAVE TITLED TO SUBMERGED LANDS "TO THE
BOUNDARY LINE OF EACH SUCH STATE" (FN11) WITH THE TERM "BOUNDARIES"
MEANING "THE SEAWARD BOUNDARIES OF A STATE  ...  AS THEY EXISTED AT THE
TIME SUCH STATE BECAME A MEMBER OF THE UNION, OR AS HERETOFORE APPROVED
BY THE CONGRESS," (FN12) UP TO A LIMIT OF THREE GEOGRAPHIC MILES FROM
THE COASTLINE IN THE ATLANTIC AND PACIFIC OCEANS, AND THREE LEAGUES
FROM THE COASTLINE IN THE GULF OF MEXICO.  (FN13)  THUS EACH STATE WAS
GIVEN TITLE TO THE SUBMERGED LANDS OFF ITS SHORES OUT AS FAR AS ITS
BOUNDARIES AT THE TIME THE STATE ENTERED THE UNION, WHICH WERE STATED
NOT TO GO MORE THAN THREE MILES (OR LEAGUES) BEYOND ITS "COAST LINE." 
THE "COAST LINE" WAS THE OUTER LIMIT OF ITS "INLAND WATERS."  THE BASIC
QUESTION HERE IS WHETHER THE STATE'S "COAST LINE" AS THE TERM IS USED
IN THE ACT IS TO BE DETERMINED BY LOOKING AT THE STATE'S HISTORIC
BOUNDARIES WHEN IT ENTERED THE UNION, OR BY THE STANDARD USED BY THE
MASTER IN CARRYING OUT THE CALIFORNIA DECREE. 

FOR 10 YEARS AFTER THE ACT WAS PASSED TRANSFERRING TITLE TO THESE
SUBMERGED LANDS TO THE STATES, NO FURTHER ACTION IN THE CASE PENDING IN
THIS COURT WAS TAKEN BY EITHER THE UNITED STATES OR CALIFORNIA.  (FN14)
CALIFORNIA'S ORIGINAL CLAIM THAT THESE BAYS AND CHANNELS WERE INLAND
WATERS WITHIN THE MEANING OF THIS COURT'S DECREE HAD CEASED TO BE SO
IMPORTANT, SINCE THE STATES HAD BEEN GIVEN TITLE TO ALL THE SUBMERGED
LANDS OUT TO THEIR HISTORIC BOUNDARIES, INCLUDING RECOGNITION OF THEIR
CLAIMS TO THREE MILES OR LEAGUES OF THE MARGINAL SEA.  AFTER 10 YEARS
HAD PASSED, HOWEVER, EXPLOITATION OF UNDERSEA OIL RESOURCES HAD BECOME
POSSIBLE IN DEEP WATER AT GREAT DISTANCES FROM THE MAINLAND, AND THE
UNITED STATES RAISED THIS PRESENT DISPUTE WITH CALIFORNIA CONCERNING
WHERE THE OUTER LIMIT OF THE SUBMERGED LAND GIVEN THE STATE BY THE
SUBMERGED LANDS ACT LAY.  THE UNITED STATES CONTENDS THAT THIS DEPENDS
ON THE LOCATION OF THE "COAST LINE" SINCE THE STATE'S ADDED RIGHTS
EXTENDED THREE MILES FROM THE "COAST LINE," AND THAT THE LOCATION OF
THE "COAST LINE" DEPENDS IN TURN ON THE LOCATION OF THE SEAWARD EDGE OF
THE "INLAND WATERS," WHICH THE UNITED STATES ARGUES SHOULD BE MEASURED
ACCORDING TO THE DEFINITION OF "INLAND WATERS" USED BY THE MASTER IN
HIS HEARINGS IN THE CALIFORNIA CASE; THE UNITED STATES FURTHER ARGUES
THAT THE REPORT OF THE MASTER SETTLED THE CASE, AND THAT THE SUBSEQUENT
PASSAGE OF THE SUBMERGED LANDS ACT HAD NO EFFECT ON THE CORRECTNESS OF
THE STANDARD HE USED.  CALIFORNIA REPLIES THAT SINCE THE STATED PURPOSE
OF THE ACT WAS TO RESTORE THE STATES' CLAIMS TO THE SUBMERGED LANDS
WITHIN THEIR HISTORIC BOUNDARIES, WHICH INCLUDED ALL WATERS WITHIN THE
STATES' BOUNDARIES AS INLAND WATERS AND THREE MILES BEYOND INTO THE
TERRITORIAL SEA, THE "COAST LINE" OR SEAWARD EDGE OF THE "INLAND
WATERS" WAS TO BE DEFINED IN TERMS OF WHAT A STATE HAD HISTORICALLY
CLAIMED WAS ITS COASTLINE, THE LINE FROM WHICH IT HAD MEASURED ITS
BOUNDARY, BY ITS THREE-MILE CLAIM TO THE MARGINAL SEA.  IN OTHER WORDS,
THE UNITED STATES PROPOSES THAT IN MEASURING CALIFORNIA'S SUBMERGED
LANDS EVEN UNDER THE SUBMERGED LANDS ACT THIS COURT SHOULD START WITH A
LINE OF INTERNATIONALLY DEFINED "INLAND WATERS" AS APPLIED BY THE
MASTER IN CARRYING OUT THE DECREE IN THE CALIFORNIA CASE, AND MEASURE
THREE MILES OUT.  CALIFORNIA ARGUES THAT SINCE THE EFFECT OF THE
CALIFORNIA CASE WAS REJECTED BY THE SUBMERGED LANDS ACT, THIS COURT
SHOULD LOOK ONLY TO THE SUBMERGED LANDS ACT FOR THE GOVERNING LAW AND
IN DEFINING THE STATE'S BOUNDARY SHOULD START WITH THE COASTLINE AS
HISTORICALLY RECOGNIZED WHEN THE STATE WAS ADMITTED TO THE UNION, FROM
WHICH THE STATE MEASURED ITS THREE-MILE CLAIM OF MARGINAL SEA, AND
MEASURE THREE MILES OUTWARD FROM THAT HISTORIC COASTLINE, THUS
RESTORING THE STATE'S HISTORIC BOUNDARIES.  I THINK THAT THE LANGUAGE
AND PURPOSE OF THE SUBMERGED LANDS ACT OF 1953 SHOW THAT CALIFORNIA IS
RIGHT. 

                                 II. 

THIS COURT'S 1947 HOLDING PRECIPITATED ONE OF THE MOST HOTLY
CONTESTED POLITICAL ISSUES OF THE POST-WAR DECADE.  CRITICS OF THE
DECISION SAID THAT IT HAD COME AS A COMPLETE SURPRISE AND HAD
EFFECTIVELY TAKEN AWAY FROM THE COASTAL STATES WHAT THEY AND OTHERS HAD
THOUGHT FROM THE TIME THEY ENTERED THE UNION AND BEFORE BELONGED TO
THEM.  IN 1952 A RESOLUTION PASSED BOTH HOUSES OF CONGRESS DESIGNED TO
"RESTORE" TO THE STATES THE SUBMERGED LANDS WHICH THEY HAD THOUGHT THEY
OWNED BEFORE THE CALIFORNIA DECISION.  (FN15)  MANY OPPOSED THIS BILL
AS A "GIVE AWAY" OF THE FEDERAL PUBLIC DOMAIN, AND PRESIDENT TRUMAN
PREVENTED THE BILL'S PASSAGE BY VETOING IT.  (FN16)  EVEN IN SO DOING,
HOWEVER, HE RECOGNIZED FRANKLY THAT "EVEN SO CAREFUL AND ZEALOUS A
GUARDIAN OF THE PUBLIC INTEREST AS THE LATE SECRETARY OF THE INTERIOR,
HAROLD ICKES, AT FIRST ASSUMED THAT THE UNDERSEA LANDS WERE OWNED BY
THE STATES."  (FN17) 

THE CONTROVERSEY OVER WHETHER TO UPSET THE FEDERAL GOVERNMENT'S TITLE
WHICH THIS COURT HAD DECLARED IN THE 1947 DECISION CONTINUED, HOWEVER,
AND ON JANUARY 9, 1953, SENATOR HOLLAND OF FLORIDA ON BEHALF OF HIMSELF
AND 39 OTHER SENATORS INTRODUCED A BILL, SENATE JOINT RESOLUTION 13,
(FN18) WHICH WAS IDENTICAL WITH THE BILL WHICH HAD PASSED THE PREVIOUS
YEAR AND WHICH, WITH VARIOUS AMENDMENTS, PASSED BOTH HOUSE OF CONGRESS,
WAS SIGNED BY PRESIDENT EISENHOWER, AND BECAME LAW AS THE SUBMERGED
LANDS ACT OF 1953.  THE STATED PURPOSE OF THE LAW AS ENACTED WAS: 

"TO CONFIRM AND ESTABLISH THE TITLES OF THE STATES TO LANDS BENEATH
NAVIGABLE WATERS WITHIN STATE BOUNDARIES AND TO THE NATURAL RESOURCES
WITHIN SUCH LANDS AND WATERS  ...  AND TO CONFIRM THE JURISDICTION AND
CONTROL OF THE UNITED STATES OVER THE NATURAL RESOURCES OF THE SEABED
OF THE CONTINENTAL SHELF SEAWARD OF STATE BOUNDARIES."  (FN19) 

AS THE FIRST WITNESS TO TESTIFY AT THE SENATE COMMITTEE HEARINGS ON
HIS BILL, SENATOR HOLLAND SAID THAT: 

"THE GENERAL PURPOSE OF SENATE JOINT RESOLUTION 13 IS TO RECOGNIZE,
CONFIRM, ESTABLISH, AND VEST IN THE SEVERAL STATES - AND THIS MEANS ALL
48 OF THEM - THE SUBMERGED LANDS AND THE NATURAL RESOURCES THEREIN
WITHIN THEIR RESPECTIVE BOUNDARIES, SUBJECT TO THE EXERCISE OF ALL OF
THE POWERS OF REGULATION OF THE FEDERAL GOVERNMENT FOR THE PURPOSE OF
COMMERCE, NAVIGATION, NATIONAL DEFENSE, AND INTERNATIONAL AFFAIRS, NONE
OF WHICH FEDERAL POWERS INCLUDE ANY PROPERTY RIGHTS.  THIS JOINT
RESOLUTION WILL CONFIRM TO THE MARITIME STATES - OF WHICH THERE ARE 20
THE RIGHTS WHICH THEY HAD RESPECTIVELY ENJOYED SINCE THE FOUNDING OF
OUR NATION AND UP TO THE DATE OF THE DECISION IN THE CALIFORNIA CASE,
IN THEIR OFFSHORE LANDS AND WATERS WHICH LIE WITHIN THEIR
CONSTITUTIONAL BOUNDARIES."  (FN20) 

ITS OBJECT, HE SAID, WAS "RESTORING TO THE STATES THEIR PLENARY
RIGHTS, PROPERTY, JURISDICTION, AND CONTROL WHICH THEY EXERCISED
WITHOUT QUESTION FOR 150 YEARS OVER THE AREAS LYING WITHIN STATE
BOUNDARIES."  (FN21)  IT DEALT ONLY, HE SAID, WITH THE AREA WITHIN "THE
STATES' HISTORIC OR CONSTITUTIONAL BOUNDARIES,"  (FN22)  THOSE WHO
TESTIFIED IN FAVOR OF THE BILL STATED THEIR OBJECTIVE THE SAME WAY. 
THUS SECRETARY OF THE INTERIOR MCKAY SAID: 

"I DO BELIEVE THAT THE NATIONAL INTEREST WOULD BE BEST SERVED BY
RESTORING TO THE VARIOUS STATES THE COASTAL OFFSHORE LANDS TO THE
LIMITS OF THE LINE MARKED BY THE HISTORICAL BOUNDARIES OF EACH OF THE
RESPECTIVE STATES."  (FN23) 

THERE CAN BE NO DOUBT, I BELIEVE, AND I DO NOT UNDERSTAND THE COURT
TO QUESTION, THAT, AS PROPOSED TO THE SENATE COMMITTEE ON INTERIOR AND
INSULAR AFFAIRS BY SENATOR HOLLAND AND OTHERS, THE BILL WHICH BECAME
THE SUBMERGED LANDS ACT UNQUESTIONABLY WAS INTENDED TO GIVE THE STATES
TITLE TO ALL THE OFFSHORE LANDS GOING OUT AT LEAST AS FAR AS THE
RESPECTIVE STATES' HISTORIC BOUNDARIES.  A BRIEF FILED IN THIS COURT IN
ANOTHER CASE SHOWS THAT IN THE REPORTED DELIBERATIONS ON THE BILL THE
TERM "HISTORIC STATE BOUNDARIES" WAS USED 813 TIMES, "ORIGINAL
BOUNDARIES" 121 TIMES, AND "TRADITIONAL" BOUNDARIES 114 TIMES.  (FN24)
SINCE I TAKE IT THAT THE COURT CONCEDES THAT THIS WAS THE ORIGINAL
PURPOSE, SEE ANTE, PP. 153-154, I SHALL NOT BOTHER TO SET FORTH ALL THE
STATEMENTS OF PROPONENTS OF THE BILL AT THE SENATE HEARINGS, AS WELL AS
AT THE HOUSE HEARINGS, WHICH STATED FLATLY THAT THIS WAS ITS PURPOSE. 

                                        III. 

WE START THEN FROM THE CONCEDED FACT THAT THE BILL AS ORIGINALLY
INTRODUCED GAVE CALIFORNIA TITLE TO ALL THE SUBMERGED LANDS OFF ITS
SHORE OUT TO ITS HISTORIC BOUNDARIES, WHATEVER THEY MIGHT PROVE TO BE.
THE COURT, HOWEVER, PINS ITS CASE FOR DENYING CALIFORNIA THOSE HISTORIC
BOUNDARIES ON WHAT IT CALLS TWO "RELEVANT," INDEED FUNDAMENTAL,
CHANGES, ANTE, P. 150, MADE IN THE BILL PRIOR TO ITS PASSAGE, WHICH THE
COURT SAYS SHOW THAT THE BILL'S SPONSORS SUDDENLY ALTERED THEIR INTENT
AND DECIDED INSTEAD OF RESTORING TO CALIFORNIA AND OTHER STATES MINERAL
RIGHTS WITHIN THEIR HISTORIC BOUNDARIES, TO LIMIT THEM TO A THREE-MILE
OR THREE-LEAGUE STRIP OF MARGINAL WATERS ALONG "COAST LINES" WHICH WERE
TO BE RESTRICTIVELY DEFINED ACCORDING TO CURRENT POLICIES OF
INTERNATIONAL RELATIONS ADHERED TO BY THE STATE DEPARTMENT.  A STUDY OF
THE LEGISLATIVE HISTORY CONVINCES ME THAT IN MAKING THE TWO CHANGES ON
WHICH THE COURT RELIES, THE SENATORS INTENDED IN NO WAY TO ALTER THE
PURPOSE OF THE ORIGINAL HOLLAND BILL TO RESTORE TO THE STATES ALL THE
WATERS AND SUBMERGED LANDS WITHIN THEIR HISTORIC CONSTITUTIONAL
BOUNDARIES.  THEY EXPRESSLY, VIGOROUSLY AND REPEATEDLY AVOWED THAT THE
ORIGINAL PURPOSE WAS UNCHANGED.                             A. THE
REMOVAL OF THE DEFINITION OF

                                 "INLAND WATERS." 

AS ORIGINALLY DRAFTED, SEC. 2 OF THE HOLLAND BILL DEFINED "INLAND
WATERS," WHICH EXTENDED TO THE "COAST LINE," AS INCLUDING: 

"ALL ESTUARIES, PORTS, HARBORS, BAYS, CHANNELS, STRAITS, HISTORIC
BAYS, AND SOUNDS, AND ALL OTHER BODIES OF WATER WHICH JOIN THE OPEN
SEA."  (FN25) 

THIS DEFINITION WOULD OF COURSE UNQUESTIONABLY GIVE CALIFORNIA TITLE
TO SUBMERGED LANDS LYING UNDER ALL ITS HISTORICALLY RECOGNIZED BAYS AND
STRAITS AS PART OF CALIFORNIA'S "INLAND WATERS," QUITE APART FROM THE
FACT THAT THEY MIGHT ALSO LIE WITHIN CALIFORNIA'S HISTORIC BOUNDARY OF
INLAND WATERS PLUS MARGINAL SEA.  THE DEPUTY LEGAL ADVISER OF THE STATE
DEPARTMENT TESTIFIED THAT SUCH A LEGISLATIVE DEFINITION OF INLAND
WATERS, EVEN THOUGH LIMITED TO THE PURPOSE OF THE BILL OF AFFECTING
PROPERTY RIGHTS BETWEEN THE UNITED STATES AND THE STATES, "A PURELY
DOMESTIC MATTER," (FN26) MIGHT POSSIBLY EMBARRASS THE STATE DEPARTMENT
IN ITS FOREIGN RELATIONS IF THE DEPARTMENT ASSERTED A DIFFERENT
DEFINITION OF THE WORDS "INLAND WATERS" IN ITS RELATIONS WITH FOREIGN
NATIONS.  (FN27) THE ATTORNEY GENERAL WARNED THAT TO ATTEMPT TO DEFINE
THE COASTLINE IN A FEW WORDS MIGHT INCREASE RATHER THAN DIMINISH
LITIGATION.  (FN28)  AS A RESULT, SENATOR CORDON, THE ACTING CHAIRMAN
OF THE COMMITTEE, AT THE CONCLUSION OF THE HEARINGS QUOTED THE LANGUAGE
DEFINING "INLAND WATERS" FOR PURPOSES OF THE ACT AND SAID: 

"THAT LANGUAGE WAS OBJECTIONABLE TO THE STATE DEPARTMENT AND TO THE
DEPARTMENT OF JUSTICE.  THAT ISN'T, IN ITSELF, IN MY OPINION, REASON TO
STRIKE IT, BUT I AM OF THE OPINION THAT THE OBJECTIONS WERE SOUND.  THE
MATTER OF INLAND WATERS IS ONE THAT HAS BEEN DEFINED TIME AND TIME
AGAIN BY THE COURTS, NOT, I BELIEVE, IN ANY ONE ALL-INCLUSIVE
DEFINITION, BUT IT WAS FELT THAT THE USE OF THESE WORDS WERE AN
ATTEMPTED LEGISLATIVE DEFINITION OF THE TERM 'INLAND WATERS,' AND IT
WAS INADVISABLE FOR US IN THIS BILL, WHICH IS A TRANSFER OF TITLE, TO
ATTEMPT TO MAKE LAW IN THE OTHER FIELD OF WHAT IS OR IS NOT INLAND
WATER."  (FN29) 

AT ANOTHER POINT HE EXPLAINED THAT THE LANGUAGE WAS STRUCK SIMPLY
BECAUSE: 

"IT WAS SOUGHT NOT TO GET INTO THAT FIELD BECAUSE YOU WERE IN A FIELD
THEN WHERE, IN OUR ATTEMPTS TO TAKE CARE OF A PURELY DOMESTIC MATTER,
WE MIGHT BE PUTTING THE UNITED STATES ON RECORD WITH A PRECEDENT WHICH
WE INTENDED ONLY TO APPLY DOMESTICALLY BUT WHICH MIGHT BE APPLIED
INTERNATIONALLY."  (FN30) 

HE EMPHASIZED THAT: 

"THE ELIMINATION OF THE LANGUAGE STILL FOLLOWS WHAT THE CHAIR
UNDERSTANDS TO BE THE PHILOSOPHY OF THE BILL, THAT WE ARE PUTTING THE
STATES WHERE THEY THOUGHT THEY WERE, AND NOT ATTEMPTING NOW TO CREATE
EITHER A SITUATION IN LAW OR A BASIS FOR A RULE OF EVIDENCE THAT MAY OR
MAY NOT HAVE BEEN SOUND WHEN THE STATES CAME INTO THE UNION."  (FN31) 

SENATOR DANIEL OF TEXAS, A LEADING ADVOCATE AND SPONSOR OF THE BILL,
SAID: 

"I AGREE FULLY WITH THE CHAIRMAN THAT THE STRIKING OF THESE WORDS WAS
NOT DONE IN ANY MANNER TO PREJUDICE THE RIGHTS OF THE STATES  ...  .  I
JUST WANT TO STATE THAT FOR THE RECORD, IF THIS RECORD IS EVER USED IN
THE FUTURE."  (FN32) 

SENATOR CORDON, WHO HAD PROPOSED THE CHANGE, REPLIED: 

"I APPRECIATE THE STATEMENT OF THE SENATOR, AND I CONCUR IN IT, SO
FAR AS THE ACTION TAKEN HERE IS CONCERNED."  (FN33) 

AND SENATOR ANDERSON, ANOTHER MEMBER OF THE COMMITTEE REPORTING THE
BILL, AGREED: 

"I SUBSCRIBE FULLY TO WHAT THE CHAIRMAN SAID QUITE AWHILE AGO IN
POINTING OUT THAT THIS BILL DOES NOT SEEK TO TAKE AWAY FROM OR ADD TO
THE POSITION OF THESE STATES AS THEY CAME INTO THE UNION."  (FN34) 

WHEN THE BILL WAS REPORTED OUT OF COMMITTEE AND PRESENTED TO THE
SENATE, ITS SUPPORTERS MADE CLEAR THAT THE COMMITTEE HAD MADE NO CHANGE
IN ITS ORIGINAL OBJECTIVE OF RESTORING TO THE STATES EVERYTHING WITHIN
THEIR HISTORIC BOUNDARIES.  SENATOR HOLLAND SAID IT WAS AN "OBVIOUS
FACT" (FN35) THAT THE BILL WAS "GIVING TO THE STATES THAT WHICH,
WITHOUT QUESTION, WAS ENJOYED BY THEM FOR 150 OR 160 YEARS, NAMELY, THE
OWNERSHIP OF EVERYTHING WITHIN STATE BOUNDARIES, AND RESERVING TO THE
FEDERAL GOVERNMENT EVERYTHING BEYOND THAT."  (FN36)  SENATOR CORDON
EXPRESSED HIS UNDERSTANDING THAT: 

"THE BOUNDARIES OF THE STATES CANNOT BE CHANGED BY CONGRESS WITHOUT
THE CONSENT OF THE STATES.  WE CANNOT DO ANYTHING LEGISLATIVELY IN THAT
FIELD, AND WE HAVE NOT SOUGHT TO DO SO IN THIS MEASURE. 

"I THINK THAT ANSWERS ALL AND EVERY ONE OF THE DISCUSSIONS WITH
REFERENCE TO BOUNDARY LINES OF THE STATES, INCLUDING WHETHER THEY ARE
MEASURED FROM LOW WATER, HIGH WATER, INLAND WATER, OR SOME ISLAND." 
(FN37) 

AND SENATOR HOLLAND SAID: 

"BY WAY OF A BRIEF SUMMARY, THE GENERAL PURPOSE OF THIS MEASURE AS
REPORTED BY THE INTERIOR AND INSULAR AFFAIRS COMMITTEE IS TO RECOGNIZE,
CONFIRM, ESTABLISH, AND VEST IN AND ASSIGN TO THE RESPECTIVE STATES THE
TITLE AND OWNERSHIP OF THE LANDS AND RESOURCES BENEATH NAVIGABLE WATERS
WITHIN THEIR RESPECTIVE BOUNDARIES  ...  ."  (FN38) 

AND SENATOR DANIEL EXPLAINED: 

"UNTIL RECENTLY THE FEDERAL GOVERNMENT NEVER THOUGHT IT OWNED THESE
LANDS, AND EVEN UNTIL NOW IT HAS NEVER POSSESSED OR USED THEM.  THE
LANDS ARE STILL IN THE POSSESSION OF THE STATES  ...  .  THE PASSAGE OF
THE PENDING PROPOSED LEGISLATION WILL SIMPLY PERMIT THE STATES TO KEEP
WHAT THEY HAVE ALWAYS HAD SINCE THE FOUNDATION OF THE UNION."  (FN39) 

IF THAT WERE NOT ENOUGH TO SHOW THAT THE REMOVAL OF THE DEFINITION OF
INLAND WATERS FROM SEC. 2 OF THE BILL AS A COURTESY TO THE STATE AND
JUSTICE DEPARTMENTS WAS TO HAVE NO SUBSTANTIVE EFFECT, THE SENATE
COMMITTEE SAID AT THE BEGINNING OF ITS REPORT ON ITS VERSION OF THE
BILL: 

"THE COMMITTEE WISHES TO EMPHASIZE THAT, AS WILL BE SEEN FROM
COMPARISON WITH THE MEASURE AS INTRODUCED, THE CHANGES ARE PRIMARILY
THOSE OF FORM AND LANGUAGE, AND THE COMMITTEE AMENDMENT IS CONSISTENT
THROUGHOUT WITH THE PHILOSOPHY AND INTENT OF SENATE JOINT RESOLUTION 13
AS INTRODUCED.  THE ONLY CHANGE OF SUBSTANCE IS FOUND IN SECTION 9, IN
WHICH THE JURISDICTION AND CONTROL OF THE FEDERAL GOVERNMENT OVER THE
NATURAL RESOURCES OF THE SEABED OF THE CONTINENTAL SHELF SEAWARD OF
HISTORIC STATE BOUNDARIES IS CONFIRMED."  (FN40) 

THUS THE CONTINUED INTENTION TO CONFER ON THE STATES ALL SUBMERGED
LANDS WITHIN THEIR "HISTORIC BOUNDARIES" WAS AGAIN REITERATED.  AND IN
A SPECIFIC REFERENCE TO THE ELIMINATION OF THE DEFINITION OF INLAND
WATERS FROM SEC. 2, THE COMMITTEE REPORT SAID THAT THE WORDS HAD BEEN
DELETED: 

"BECAUSE OF THE COMMITTEE'S BELIEF THAT THE QUESTION OF WHAT
CONSTITUTES INLAND WATERS SHOULD BE LEFT WHERE CONGRESS FINDS IT. THE
COMMITTEE IS CONVINCED THAT THE DEFINITION NEITHER ADDS NOR TAKES AWAY
ANYTHING A STATE MAY HAVE NOW IN THE WAY OF COAST AND THE LANDS
UNDERNEATH WATERS BEHIND IT."  (FN41) 

THE COMMITTEE HAD BEFORE IT THE REPORT OF THE SPECIAL MASTER IN THIS
VERY CASE (FN42) AND DID NOT ADOPT HIS CRITERIA, BASED ON THE
CALIFORNIA DECISION, FOR DETERMINING INLAND WATERS, CRITERIA WHICH
INCLUDED THE BOGGS FORMULA FOR DETERMINING BAYS, A FORMULA WHICH MANY
SENATORS INDICATED THEY DISAPPROVED AND WHICH THE COMMITTEE REPORT
SPECIFICALLY STATED IT DID NOT MEAN TO ESTABLISH AS THE LAW.  CLEARLY
THE POSITION OF THE COMMITTEE WAS THAT IT REALLY CARED ONLY ABOUT
RESTORING TO THE STATES THEIR CLAIMS TO SUBMERGED LANDS WITHIN THEIR
HISTORIC BOUNDARIES, WHICH OF COURSE INCLUDED ALL THE LANDS, BAYS,
HARBORS AND CHANNELS WITHIN THOSE BOUNDARIES - THEIR HISTORIC
COASTLINES - AND THREE MILES OR LEAGUES OF MARGINAL SEA.  (FN43)  THE
COMMITTEE SAW NO REASON TO ATTEMPT TO SPELL OUT ITS DEFINITION OF
INLAND WATERS, AS INCLUDING ALL HISTORIC BAYS AND CHANNELS, WHEN THERE
WAS NO REASON TO DO SO AND WHEN TO DO SO MIGHT POSSIBLY HAVE
EMBARRASSING REPERCUSSIONS ON AMERICAN FOREIGN RELATIONS, WHERE
DIFFERENT DEFINITIONS OF INLAND WATERS PREVAILED.  LEST ANYONE
MISCONSTRUE THE CHANGE, THE COMMITTEE SAID WITH REFERENCE TO IT: 

"THE ELIMINATION OF THE LANGUAGE, IN THE COMMITTEE'S OPINION, IS
CONSISTENT WITH THE PHILOSOPHY OF THE HOLLAND BILL TO PLACE THE STATES
IN THE POSITION IN WHICH BOTH THEY AND THE FEDERAL GOVERNMENT THOUGHT
THEY WERE FOR MORE THAN A CENTURY AND A HALF, AND NOT TO CREATE ANY
SITUATIONS WITH RESPECT THERETO."  (FN44) 

THE COURT READS THIS CHANGE IN WORDS AS SHOWING "A LEGISLATIVE INTENT
TO LEAVE THE DEFINITION OF INLAND WATERS TO THE COURTS WITHOUT
RESTRICTION."  ANTE, P. 154.  THE COURT AGREES THAT BEFORE THIS CHANGE
WAS MADE, THE BILL GAVE THE STATES ALL THE SUBMERGED LANDS OUT TO THEIR
HISTORIC BOUNDARIES.  THE COURT ADMITS THAT THE 1947 CALIFORNIA
DECISION REJECTED THE STATES' CLAIMS TO THEIR HISTORIC BOUNDARIES AND,
ACCORDING TO THE COURT, SET UP A TEST OF INTERNATIONAL LAW AND FOREIGN
POLICY STANDARDS FOR MEASURING INLAND WATERS.  BUT THE COURT CONCLUDES
THAT WHEN THE COMMITTEE SAID THAT IT WAS LEAVING THE STATES WITH THE
RIGHTS TO INLAND WATERS WHICH THEY HAD BEFORE THE CALIFORNIA DECISION,
IT REALLY MEANT TO ESTABLISH THE INTERNATIONAL LAW STANDARD, INCLUDING
THE BOGGS FORMULA (EXCEPT INSOFAR AS THAT FORMULA HAS SINCE BEEN
ABANDONED BY TREATY) WHICH MANY SENATORS HAD SO STRENUOUSLY OPPOSED AND
WHICH IN THEIR COMMITTEE REPORT THEY SPECIFICALLY STATED THEY DID NOT
MEAN TO ADOPT.  I THINK THAT A FAIR READING OF THE DISCUSSION OF THIS
CHANGE SHOWS THAT THE COMMITTEE MEMBERS INTENDED THAT ALL THE STATES
SHOULD HAVE THEIR BOUNDARIES, INCLUDING A BELT OF MARGINAL SEA AND ALL
THE LANDS AND WATERS FROM WHICH THEY HAD HISTORICALLY MEASURED THEIR
CLAIMS TO THE MARGINAL SEA, WHICH THEY THOUGHT WOULD HAVE BEEN
RECOGNIZED AS SUCH BY THE COURTS UP TO THE TIME OF THE CALIFORNIA
DECISION, AND THAT THE TEST OF INLAND WATERS AND COASTLINES WAS
THEREFORE AN HISTORICAL ONE.  THE COMMITTEE REGARDED THE CALIFORNIA
DECISION AS A COMPLETE ABERRATION, AND ASSUMED THAT BEFORE IT ALL
COURTS WOULD HAVE JUDGED INLAND WATERS BY HISTORICAL TESTS, AS IN FACT
SEVERAL CALIFORNIA AND FEDERAL DECISIONS SHOW THEY HAD.  (FN45)  I
CANNOT UNDERSTAND HOW THE COURT REASONS THAT WHEN THE COMMITTEE SAID
THAT IT LEFT THE STATES AS IT THOUGHT THEY WERE BEFORE THE CALIFORNIA
DECISION, IT REALLY MEANT TO PUT THEM IN THE POSITION THE COURT SAYS
THEY WERE IN AFTER THAT CASE, INSOFAR AS INLAND WATERS AND THEIR
COASTLINES ARE CONCERNED.  I THINK THAT THE AMENDMENT DID JUST WHAT THE
COMMITTEE SAID IT DID:  IT FREED CONGRESS FROM THE NEED OF "HAVING TO
DETERMINE MATTERS THAT ARE HIGHLY TECHNICAL," (FN46) AND LEFT IT FOR
THE STATES TO PROVE IF THEY COULD THE FACTS TO SUPPORT THEIR HISTORIC
CLAIMS THAT PARTICULAR BODIES WERE INLAND WATERS BEHIND THE COASTLINE. 
SENATOR KUCHEL OF CALIFORNIA, FULLY FAMILIAR WITH THE PROBLEMS OF
CALIFORNIA, AND ON THE ALERT TO PROTECT THAT STATE'S INTEREST IN THE
BAYS AND CHANNELS WITHIN ITS HISTORIC BOUNDARIES, INTERPRETED THE BILL
PROPERLY, I THINK, WHEN HE SAID: 

"IN RECOGNIZING STATE OWNERSHIP OF LANDS BENEATH NAVIGABLE WATERS
WITHIN HISTORIC STATE BOUNDARIES, THIS JOINT RESOLUTION WISELY MAKES NO
ATTEMPT TO DEFINE EXACTLY WHAT THOSE BOUNDARIES ARE.  IN SUBSTANCE, THE
RESOLUTION PROVIDES THAT EACH OF THE STATES HAS OWNERSHIP OF ALL LANDS
BENEATH NAVIGABLE WATERS EXTENDING, IN THE CASE OF LITTORAL STATES, 3
GEOGRAPHICAL MILES SEAWARD FROM ITS COASTLINE, OR TO ITS HISTORIC
BOUNDARY."  (FN47) 

THUS UP TO THIS POINT IN THE LEGISLATIVE HISTORY I THINK IT CAN BE
SAID THAT (1) THE HOLLAND BILL AS ORIGINALLY DRAFTED UNQUESTIONABLY
GAVE THE STATES TITLE TO ALL SUBMERGED LANDS OUT AS FAR AS THEIR
HISTORIC BOUNDARIES; AND (2) THE ELIMINATION OF THE LEGISLATIVE
DEFINITION OF INLAND WATERS DID NOT ALTER THE ORIGINAL INTENT OF THE
BILL IN THE SLIGHTEST DEGREE, BUT RATHER LEFT IT UP TO THE STATES TO
PROVE THAT PARTICULAR BAYS, CHANNELS OR HARBORS WERE INSIDE THEIR
COASTLINES AS PART OF THEIR "HISTORIC BOUNDARIES," ACCORDING TO "THE
POSITION IN WHICH BOTH THEY AND THE FEDERAL GOVERNMENT THOUGHT THEY
WERE FOR MORE THAN A CENTURY AND A HALF."  (FN48)

                        B. THE THREE-MILE OR THREE-LEAGUE

                                    LIMITATION. 

THE COURT CALLS ATTENTION TO ONE OTHER CHANGE IN THE BILL BEFORE ITS
ENACTMENT, AND ON THE SIGNIFICANCE ATTRIBUTED TO THIS ONE SMALL CHANGE
DEPENDS THE VALIDITY OF THE COURT'S ENTIRE OPINION.   THE COURT SAYS
THAT THIS CHANGE WAS FUNDAMENTAL, OF VITAL IMPORTANCE.  IT SAYS THAT TO
THE EXTENT OF THIS CHANGE, "THE PHILOSOPHY OF THE HOLLAND BILL WAS
MODIFIED."  ANTE, P. 154.  I FIND THIS ALTOGETHER SURPRISING, SINCE
WHEN THE CHANGE WAS INTRODUCED - BY SENATOR HOLLAND HIMSELF - AND
ADOPTED ALMOST IMMEDIATELY WITHOUT ANY OPPOSITION BEING VOICED, HE SAID
IT WAS "JUST A MINOR CHANGE OF VERBIAGE," (FN49) ONE OF SEVERAL "MINOR
CHANGES FOR THE PURPOSE OF CLARIFICATION."  (FN50)  IF THE CHANGE WAS
TO HAVE THE DRAMATIC EFFECT WHICH THE COURT ATTRIBUTES TO IT, SENATOR
HOLLAND CERTAINLY DID NOT RECOGNIZE IT, FOR HE SAID THAT IT DID "NOT
DEPART IN THE SLIGHTEST FROM THE INTENTION OF THE SPONSORS OF THE JOINT
RESOLUTION."  (FN51)  THIS AMENDMENT ALONG WITH OTHERS WAS ADOPTED
AFTER DISCUSSION OCCUPYING LESS THAN TWO PAGES IN THE CONGRESSIONAL
RECORD, WITHOUT A ROLL-CALL VOTE, WITHOUT EVEN ONE SINGLE OBJECTION
FROM THE SENATE FLOOR.  FUNDAMENTAL CHANGES IN THE BASIC PURPOSE OF
BILLS ARE NEVER ADOPTED IN THAT WAY.  SENATOR HOLLAND'S EXPLANATION
THAT THIS WAS "JUST A MINOR CHANGE OF VERBIAGE" SHOULD BE ACCEPTED BY
THIS COURT, AS I HAVE NO DOUBT IT WAS ACCEPTED BY THE SENATE. 

THIS CHANGE WHICH ITS SPONSOR THOUGHT WAS "MINOR" AND WHICH THE COURT
THINKS IS FUNDAMENTAL, AND ON WHICH THE COURT'S WHOLE ARGUMENT DEPENDS,
MERELY MODIFIED THE DEFINITION OF "BOUNDARIES" IN SEC. 2 OF THE ACT BY
ADDING:    "BUT IN NO EVENT SHALL THE TERM 'BOUNDARIES' OR THE TERM
'LANDS BENEATH NAVIGABLE WATERS' BE INTERPRETED AS EXTENDING FROM THE
COAST LINE MORE THAN THREE GEOGRAPHICAL MILES INTO THE ATLANTIC OCEAN
OR THE PACIFIC OCEAN, OR MORE THAN THREE MARINE LEAGUES INTO THE GULF
OF MEXICO."  (FN52) 

THE COURT SAYS THAT THIS LANGUAGE IMPLICITLY DID AWAY WITH THE
ORIGINAL AND CONTINUED INTENTION OF THE PROPONENTS OF THE BILL TO
"RESTORE" TO THE STATES THE OWNERSHIP OF ALL SUBMERGED LANDS LYING
UNDER ALL WATERS WITHIN THEIR HISTORIC BOUNDARIES, WHEREVER THOSE
BOUNDARIES LAY, AND INSTEAD ESTABLISHED A RULE THAT HISTORIC BOUNDARIES
WOULD NOT BE HONORED IF THEY EXTENDED MORE THAN THREE MILES FROM THE
COASTLINE, I.E., FROM THE SEAWARD EDGE OF THE INLAND WATERS AS THE
COURT TODAY DEFINES INLAND WATERS.  THE COURT THEN READS THE
LEGISLATIVE HISTORY AS DESTROYING THE HISTORIC DEFINITION OF INLAND
WATERS - WHICH IS, OF COURSE, ALL WATERS WITHIN A STATE'S BOUNDARIES
EXCLUSIVE OF CLAIMS TO MARGINAL SEA - AND SUBSTITUTING A VERY
RESTRICTIVE ONE BASED ON THIS COURT'S DECISION IN THE CALIFORNIA CASE,
A READING WHICH I HAVE INDICATED ABOVE IS, I THINK, FLATLY CONTRARY TO
WHAT THE LEGISLATIVE HISTORY SHOWS.  THE COURT THUS HOLDS THAT BY
MAKING TWO MINOR CHANGES IN THE BILL, WHICH CHANGES THEY SAID OVER AND
OVER AGAIN WERE OF NO SUBSTANTIVE SIGNIFICANCE, THE SENATORS SUPPORTING
IT SILENTLY REPUDIATED IN LARGE MEASURE THEIR OWN INTENTION, WHICH THEY
HAD PROCLAIMED TO THE PUBLIC AND THE SENATE FROM THE BEGINNING AND
CONTINUED TO PROCLAIM TO THE END, OF RESTORING TO THE STATES THEIR
HISTORIC CONSTITUTIONAL BOUNDARIES. 

THIS THREE-MILE OR THREE-LEAGUE LIMITATION AMENDMENT WAS ADDED FOR A
VERY SIMPLE REASON, WHICH IS PLAIN IN THE CONGRESSIONAL RECORD AND
WHICH SHOWS THAT THE SPONSORS OF THE BILL WERE REAFFIRMING RATHER THAN
ABANDONING THEIR BASIC ORIGINAL PURPOSE IN OFFERING THIS AND SIMILAR
BILLS:  THEY WISHED TO RESTORE TO THE STATES THE SUBMERGED LANDS OUT TO
THEIR HISTORIC BOUNDARIES, INCLUDING THREE MILES OR LEAGUES OF MARGINAL
SEA, BUT NO FARTHER.  AS REPORTED FROM COMMITTEE, THE BILL GAVE THE
STATES SUBMERGED LANDS OUT TO THEIR BOUNDARIES AT THE TIME THEY ENTERED
THE UNION "OR AS HERETOFORE OR HEREAFTER APPROVED BY CONGRESS" WITHOUT
ANY LIMITATION.  IT WAS FEARED BY SOME THAT ONE OR MORE OF THE STATES,
NONE OF WHICH HAD EVER CLAIMED MORE THAN THREE MILES (OR LEAGUES) OF
THE MARGINAL SEA, MIGHT SUDDENLY ASSERT CLAIMS THAT THEIR BOUNDARIES
EXTENDED OUT HUNDREDS OF MILES TO THE VERY LIMITS OF THE CONTINENTAL
SHELF.  (FN53)  IF ALLOWED TO DO THIS, THE FEAR WAS EXPRESSED, SUCH
STATES WOULD BE TAKING TITLE TO MINERAL WEALTH FAR BEYOND THE HISTORIC
BOUNDARIES TO WHICH THE SPONSORS OF THE BILL WISHED TO CONFINE THEM. 
THE SPONSORS STATED THAT THEIR PURPOSE WAS MERELY TO "RESTORE" TO THE
STATES WHAT THEY HAD THOUGHT THEY HAD HAD AS BOUNDARIES - THE OUTER
PART OF THE CONTINENTAL SHELF WAS TO BELONG TO THE FEDERAL GOVERNMENT. 
(FN54)  IN ORDER TO PREVENT ANY STATES FROM TRYING TO USE THE WORD
"BOUNDARIES" IN THE ACT TO PUSH THEIR BOUNDARIES OUT BEYOND THEIR
HISTORIC THREE-MILE OR THREE-LEAGUE CLAIMS TO THE MARGINAL SEA, SENATOR
HOLLAND HIMSELF INTRODUCED THIS AMENDMENT.  IT DELETED THE WORDS "OR
HEREAFTER," THUS LIMITING THE STATES TO ANY BOUNDARIES WHICH THEY HAD
PREVIOUSLY CLAIMED, IN SPITE OF ANY CLAIMS THEY MIGHT MAKE IN THE
FUTURE; AND IT ALSO SET FORTH AS A LIMITATION THE SENATORS'
UNDERSTANDING OF THE MAXIMUM EXTENT OF THE MARGINAL SEA HISTORICALLY
CLAIMED BY ANY STATE FROM OR AS A PART OF ITS HISTORIC BOUNDARIES:
THREE GEOGRAPHICAL MILES IN THE ATLANTIC AND PACIFIC OCEANS, AND THREE
LEAGUES IN THE GULF OF MEXICO.  AS SENATOR HOLLAND EXPLAINED, A
LIMITATION TO EXISTING BOUNDARIES HAD BEEN THE INTENTION OF THE BILL'S
SPONSORS ALL ALONG, AND IT HAD BEEN AND WAS THE UNDERSTANDING OF THE
SPONSORS THAT NO STATES CLAIMED THAT THEIR HISTORIC BOUNDARIES EXTENDED
MORE THAN THREE MILES FROM THEIR COASTLINES IN THE ATLANTIC OR PACIFIC
OCEANS.  HE SAID THE THREE-MILE LIMITATION WAS "JUST A MINOR CHANGE OF
VERBIAGE" (FN55) MADE IN ORDER "TO MAKE VERY CLEAR THAT CONGRESS AT
THIS TIME IS SEEKING TO DO ONLY THOSE THINGS WHICH THE AUTHORS AND
SUPPORTERS OF THE JOINT RESOLUTION HAVE SO VERY FULLY, AND RATHER
REPEATEDLY, STATED FOR THE RECORD HERETOFORE DURING THE COURSE OF THE
DEBATE."  (FN56)  HE REITERATED THAT: 

"THE AMENDMENT WILL SIMPLY INDICATE THAT THIS SENATE, IN THE PASSAGE
OF THE JOINT RESOLUTION, IS CERTAINLY NOT INVITING ADDITIONAL CLAIMS,
AND IT KNOWS OF NO ADDITIONAL CLAIMS."  (FN57) 

SENATOR HOLLAND, AS THE RECORD SHOWS, AND MANY OTHER SENATORS WERE
WELL AWARE OF CALIFORNIA'S EXISTING CLAIM, WHICH IS NOW BEFORE US, AND
COULD NOT HAVE CONSIDERED IT TO BE "ADDITIONAL."  (FN58)

TIME AND TIME AGAIN THE PROPONENTS OF THE BILL STATED BEFORE THE
AMENDMENT WAS PASSED THAT NO STATE CLAIMED MORE THAN THREE MILES OR
LEAGUES OF MARGINAL SEA AS PART OF ITS HISTORIC BOUNDARIES, AND NO
STATE WOULD BE GIVEN RIGHTS BY THE BILL BEYOND THOSE ORIGINAL CLAIMS. 
SAID SENATOR HOLLAND, "I EMPHASIZE THE FACT THAT THIS JOINT RESOLUTION
DOES NOT EXTEND THE BOUNDARY OF ANY STATE BEYOND THE 3-MILE LIMIT." 
(FN59)  SAID SENATOR DANIEL, AGAIN BEFORE THE AMENDMENT: 

"  ...  THOSE OF US WHO ARE COAUTHORS OF THIS MEASURE HAVE ALWAYS
UNDERSTOOD THAT IT WAS NOT NECESSARY TO WRITE INTO THE PENDING
LEGISLATION A SPECIFIC PROVISION THAT IT SHALL NOT APPLY TO LANDS
BEYOND 3 MILES, OR 3 LEAGUES, BECAUSE ALL THE STATES ARE CLAIMING IS 3
MILES, EXCEPT IN THE GULF OF MEXICO WHERE HISTORIC BOUNDARIES ARE 3
LEAGUES FROM SHORE."  (FN60) 

HE ADDED: 

"I BELIEVE THAT THE EXCHANGE HERE WITHIN THE PAST FEW MINUTES SHOULD
MAKE IT VERY CLEAR THAT THE AUTHORS OF THIS MEASURE ARE NOT TRYING TO
GIVE TO THE STATES, OR TO RESTORE TO THE STATES, ANY LANDS OUTSIDE
THEIR HISTORIC BOUNDARIES."  (FN61) 

THE CLAIMS OF THE STATES TO A BELT OF MARGINAL WATERS OF COURSE DID
NOT DETERMINE THE LOCATION OF THE COASTLINE FROM WHICH SUCH A BELT
WOULD BE MEASURED.  CALIFORNIA'S HISTORIC COASTLINE, IT SAYS, WAS THE
OUTER LIMIT OF THE BAYS AND ISLANDS.  IN LIMITING THE STATES TO THEIR
HISTORIC CLAIMS OF THREE MILES OR THREE LEAGUES FROM THEIR "COAST
LINES," WHEREVER THOSE "COAST LINES" MIGHT BE, CONGRESS UNQUESTIONABLY,
I THINK, WAS LEAVING TOTALLY UNDISTURBED THE VALIDITY OF THEIR HISTORIC
CLAIMS TO THE BOUNDARIES FROM WHICH THOSE BELTS WOULD BE MEASURED. 

THE COURT'S OPINION LAYS GREAT STRESS ON AN OPINION EXPRESSED BY
SENATOR HOLLAND THAT CALIFORNIA'S CLAIM THAT ITS HISTORIC BOUNDARY OF
INLAND WATERS AND MARGINAL SEA EXTENDED OUT TO AND THREE MILES BEYOND
ITS OFFSHORE ISLANDS WAS NOT PERSUASIVE.  THE COURT LEAVES THE
IMPRESSION THAT SENATOR HOLLAND MADE A RULING THAT CALIFORNIA'S CLAIM
WOULD NOT BE COVERED BY THE ACT.  IN FACT HE DID NOTHING OF THE KIND,
BUT MERELY EXPRESSED THE OPINION TO OPPONENTS OF THE BILL WHO SAID THAT
RESTORING THE STATES TO THEIR HISTORIC BOUNDARIES WOULD GIVE THEM TOO
LARGE AN AREA OF SUBMERGED LANDS AND WHO CITED CALIFORNIA'S CLAIM TO
THE CHANNEL AS AN EXAMPLE, THAT HE THOUGHT CALIFORNIA WOULD HAVE A
DIFFICULT TIME IN PROVING THAT ITS HISTORIC BOUNDARY EXTENDED SO FAR. 
THE CONTEXT OF SENATOR HOLLAND'S REMARKS IS IMPORTANT TO SET OUT IN
FULL, SINCE WHEN READ IN CONTEXT HIS OPINION, WHICH HE LATER REPEATED
ON SEVERAL OCCASIONS, SERVES TO EMPHASIZE THAT HE INTENDED THAT EACH
STATE BE ALLOWED TO PROVE WHERE ITS HISTORIC BOUNDARIES LAY, WHICH IS
ALL THAT CALIFORNIA IS ASKING THAT IT BE ALLOWED TO DO HERE, AND WHICH
IS WHAT THE COURT NOW DENIES IT. 

THE EXCHANGE BEGAN WHEN SENATOR LONG OF LOUISIANA ASKED SENATOR
HOLLAND ABOUT HOW FAR SEAWARD LOUISIANA'S BOUNDARY WOULD EXTEND UNDER
THE BILL.  SENATOR LONG SAID: 

"NOW, IF I UNDERSTAND CORRECTLY, THE SENATOR IS NOT PROPOSING THAT
THE ACTUAL DETERMINATION OF EXACTLY WHAT WAS THE HISTORIC BOUNDARY AT
THE TIME LOUISIANA CAME INTO THE UNION BE DECIDED BY THE CONGRESS, BUT
RATHER THAT THE QUESTION OF THE HISTORIC BOUNDARY OF THE STATE MIGHT BE
ONE STILL SUBJECT TO ACTUAL JUDICIAL DETERMINATION. 

"SENATOR HOLLAND.  OF COURSE, THE SENATOR IS RIGHT. 

     *         *   *         *         * 

"SENATOR HOLLAND.  WE CANNOT DRAFT GENERAL LEGISLATION THAT WILL
STILL EVERY POSSIBLE LEGAL QUESTION."  (FN62) 

SENATOR ANDERSON OF NEW MEXICO THEN ASKED SENATOR HOLLAND WHETHER THE
BILL VALIDATED THE CLAIM OF CALIFORNIA THAT ITS HISTORIC BOUNDARY
EXTENDED TO THE OFFSHORE ISLANDS WITH A THREE-MILE BELT OF MARGINAL SEA
BEYOND THEM.  TO THIS SENATOR HOLLAND REPLIED: 

"THE SENATOR FROM FLORIDA CAN ONLY GIVE HIS OPINION, AND IN HIS
OPINION IT WOULD NOT, BECAUSE OF THE GREAT DEPTHS OF THE WATER THAT
EXIST BETWEEN THE COASTLINE OF CALIFORNIA AND THE EXTRUSIONS FROM THE
SEA BOTTOM WHICH APPEAR OUT THERE, AND SOME OF WHICH ARE ABOVE THE
LEVEL OF THE WATER.  AGAIN, THOUGH, THE SENATOR FROM FLORIDA STATES
THAT THAT WOULD BE A MATTER, NATURALLY, ON WHICH THE COURTS WOULD BE
ASKED TO RULE.  WE ARE NOT GOING TO FIND ANY FORMULA THAT DISPLACES THE
FUNCTION OF THE COURTS TO GO INTO CASES AND FIND WHICH CASES COME
WITHIN THE GENERAL DOCTRINE ANNOUNCED BY LEGISLATION AND WHICH FALL
WITHOUT THAT LEGISLATION."  (FN63) 

IN OTHER WORDS, THE BILL DID NOT SETTLE DEFINITIVELY THE QUESTION OF
FACT AS TO WHETHER CALIFORNIA'S HISTORIC BOUNDARY WAS TO BE MEASURED
FROM THE OUTER RIM OF THE ISLANDS.  THAT WAS A QUESTION ON WHICH COURTS
WOULD HAVE TO HEAR EVIDENCE AND THEN DECIDE ACCORDING TO "THE GENERAL
DOCTRINE ANNOUNCED BY THIS LEGISLATION" - THE DOCTRINE, AS SENATOR
HOLLAND AND OTHERS REPEATED SO MANY TIMES, THAT THE STATES WERE TO BE
RESTORED TO THEIR "HISTORIC BOUNDARIES."  AND AS HE SAID IN SUMMARY,
THERE WAS NOTHING IN HIS BILL WHICH WOULD DIMINISH CALIFORNIA'S CLAIM
TO THE WATERS AND SUBMERGED LANDS AROUND ITS OFFSHORE ISLANDS.  (FN64)
IN LATER REFERRING TO THE ADOPTION OF SENATOR HOLLAND'S AMENDMENT TO
THE BILL, SENATOR DANIEL OF TEXAS SAID, "THE INTENTION WAS TO WRITE
SPECIFICALLY INTO THE JOINT RESOLUTION WHAT THE AUTHORS HAVE SAID ALL
ALONG WOULD BE ITS EFFECT - THAT IT COVERED ONLY LAND WITHIN THE
HISTORIC BOUNDARIES."  (FN65) 

AS A FURTHER INDICATION THAT THE THREE-MILES-FROM-COASTLINE AMENDMENT
WAS NOT INTENDED TO AFFECT STATES' CLAIMS TO THEIR HISTORIC BOUNDARIES,
THE RECORD SHOWS THAT OPPONENTS OF THE BILL SUBSEQUENTLY TRIED TO AMEND
IT TO RESTRICT THE LINE FROM WHICH THE THREE-MILE LIMITS WOULD BE
MEASURED, AND FAILED.  SENATOR DOUGLAS OF ILLINOIS, A LEADER OF THE
OPPOSITION, PROPOSED AN AMENDMENT WHICH WOULD HAVE CHANGED THE
DEFINITION OF "COAST LINE" IN THE BILL SO THAT THE THREE MILES WOULD BE
MEASURED ONLY FROM THE MAIN CONTINENT, AND SEPARATELY AROUND ANY
ISLANDS, THUS CUTTING OFF CALIFORNIA'S CLAIM TO THE SUBMERGED LANDS
BETWEEN THE ISLANDS AND THE MAINLAND, WHICH IS LARGELY THE ISSUE BEFORE
US NOW.  SENATOR DOUGLAS INDICATED SPECIFICALLY THAT HIS PROPOSED
AMENDMENT WAS INTENDED TO DESTROY CALIFORNIA'S CLAIM TO THOSE SUBMERGED
LANDS, AND THAT HE HAD WARNED SENATOR KUCHEL OF CALIFORNIA OF HIS
INTENTION TO INTRODUCE IT.  (FN66)  SENATOR LONG OF LOUISIANA OBJECTED
THAT "THE SENATOR FROM ILLINOIS IS SUBMITTING HIS OWN DEFINITION OF
INLAND WATERS."  (FN67)  SENATOR DOUGLAS' AMENDMENT WAS DEFEATED,
(FN68) AND CALIFORNIA'S HISTORIC CLAIMS, FOR WHATEVER THEY MIGHT PROVE
TO BE WORTH, WERE LEFT, AS SENATOR HOLLAND HAD STATED, UNDIMINISHED. 

I THINK THAT THIS REVIEW OF THE RELEVANT HEARINGS AND DEBATES IN THE
SENATE MAKES CLEAR THREE THINGS:  (1) AS ORIGINALLY PROPOSED, THE BILL
WAS INTENDED TO "RESTORE" TO THE STATES TITLE TO SUBMERGED LANDS WITHIN
THEIR HISTORIC BOUNDARIES, WHATEVER THOSE MIGHT PROVE TO BE.  (2) THE
REMOVAL OF THE EXPLICIT DEFINITION OF INLAND WATERS, FAR FROM BEING, AS
THE COURT VIEWS IT, FUNDAMENTAL, WAS NOT A "CHANGE OF SUBSTANCE" (FN69)
AND WAS "NOT DONE IN ANY MANNER TO PREJUDICE THE RIGHTS OF THE STATES";
(FN70) IT WAS INTENDED MERELY TO AVOID POSSIBLE EMBARRASSMENT IN THE
FIELD OF INTERNATIONAL RELATIONS FROM A BILL WHICH HAD NOTHING TO DO
WITH INTERNATIONAL RELATIONS OR INTERNATIONAL LAW, BEING MERELY A
"TRANSFER OF TITLE."  (FN71)  (3) THE ADDITION OF THE LIMITATION OF
BOUNDARIES TO THREE MILES BEYOND THE COASTLINE, FAR FROM BEING, AS THE
COURT VIEWS IT, FUNDAMENTAL, WAS "JUST A MINOR CHANGE OF VERBIAGE"
(FN72) INTENDED TO MAKE CLEAR WHAT THE BILL'S SPONSORS HAD INTENDED ALL
ALONG:  THAT THE BILL WAS NOT DESIGNED TO ALLOW STATES IN THE FUTURE TO
PUSH THEIR BOUNDARIES OUT TO THE LIMITS OF THE CONTINENTAL SHELF, BUT
RATHER TO LIMIT THEM TO EVERYTHING WITHIN THEIR HISTORIC BOUNDARIES,
INCLUDING HISTORIC COASTLINES AND HISTORIC THREE-MILE OR THREE-LEAGUE
CLAIMS TO THE MARGINAL SEA BEYOND. 

NEAR THE CONCLUSION OF THE DEBATES ON THE BILL SENATOR HOLLAND IN
EXPLAINING ITS PURPOSE USED THESE WORDS, WHICH I DO NOT THINK SHOW ANY
FUNDAMENTAL OR EVEN PERCEPTIBLE CHANGES OR MODIFICATIONS OF PHILOSOPHY
FROM THOSE HE HAD USED IN HIS FIRST SPEECH ON THE BILL: 

"THE TRUTH IS THAT SENATE JOINT RESOLUTION 13 SIMPLY RESTORES OR
GIVES BACK TO THE STATES THE SUBMERGED LANDS WITHIN THEIR HISTORIC
BOUNDARIES WHICH THEY HAVE POSSESSED, USED AND DEVELOPED IN GOOD FAITH
FOR OVER 100 YEARS  ...  . 

     *        *        *         *         * 

"  ...  IT WOULD WRITE THE LAW FOR THE FUTURE AS IT WAS BELIEVED TO
EXIST IN THE PAST BY RESTORING TO THE STATES ALL LANDS BENEATH
NAVIGABLE WATERS WITHIN THEIR HISTORIC BOUNDARIES."  (FN73)

       C. THE HOUSE LEGISLATIVE HISTORY. 

THE HEARINGS AND DEBATES IN THE HOUSE WERE LESS EXTENSIVE THAN THOSE
IN THE SENATE, BUT THE INTENTION OF THE LEGISLATORS THERE TO RESTORE TO
THE STATES ALL SUBMERGED LANDS WITHIN THEIR HISTORIC BOUNDARES WAS NO
LESS EXPLICIT.  FORTY DIFFERENT BILLS, OF WHICH ONE (FN74) WAS
IDENTICAL WITH THE SENATE JOINT RESOLUTION PASSED BY BOTH HOUSES THE
YEAR BEFORE AND WITH THE SENATE BILL INTRODUCED BY SENATOR HOLLAND,
WERE CONSIDERED BY THE HOUSE SUBCOMMITTEE AND COMMITTEE.  THE COMMITTEE
CHOSE THE LATTER BILL AND WITH MINOR PERFECTING AMENDMENTS REPORTED IT
FAVORABLY TO THE HOUSE.  (FN75)  TYPICAL OF THE TESTIMONY AT THE
HEARINGS WAS THE STATEMENT BY ATTORNEY GENERAL BROWNELL THAT:    "THE
STATES WANT, AND WE BELIEVE THEY  ARE ENTITLED TO, ALL THE DEVELOPMENT
RIGHTS, YOU MIGHT SAY, IN THESE SUBMERGED LANDS WITHIN THEIR HISTORIC
BOUNDARIES."  (FN76) 

THE HOUSE COMMITTEE REPORT ON THE BILL SAID: 

"TITLE II CONFIRMS AND ESTABLISHES THE RIGHTS AND CLAIMS OF THE 48
STATES, ASSERTED AND EXERCISED BY THEM THROUGHOUT OUR COUNTRY'S
HISTORY, TO THE LANDS BENEATH NAVIGABLE WATERS WITHIN STATE BOUNDARIES
AND THE RESOURCES WITHIN SUCH LANDS AND WATERS."  (FN77) 

IN EXPLAINING THE BILL TO THE MEMBERS OF THE HOUSE, CONGRESSMAN
WILLIS OF LOUISIANA, A MEMBER OF THE COMMITTEE AND A SUPPORTER OF THE
BILL, SAID: 

"FIRST, IT RESTORES TO THE STATES COMPLETE TITLE TO THE SUBMERGED
LANDS UP TO THE LIMIT OF THEIR HISTORIC BOUNDARIES."  (FN78) 

AND ON THE FLOOR CONGRESSMAN WILSON OF TEXAS, ALSO A COMMITTEE MEMBER
AND SUPPORTER OF THE BILL, EXPLAINED ITS PURPOSE IN THE FOLLOWING
EXCHANGE: 

"MR. WILSON OF TEXAS.    ...  BEAR IN MIND THAT THIS IS TITLE II, THE
TITLE THAT RETURNS OR RESTROES THIS SEAWARD BOUNDARY WITHIN THE
HISTORICAL BOUNDARIES OF THE STATES TO THE STATES  ...  . 

     *         *      *         *         * 

"MR. HALLECK.  IF WE STICK TO THE PROVISIONS OF THE BILL, THEN WE ARE
JUST BEING CONSISTENT WITH RESPECT TO THE TITLE TO THE LAND WITHIN THE
HISTORIC BOUNDARIES? 

"MR. WILSON  OF TEXAS.  THAT IS TRUE."  (FN79) 

THE HOUSE BILL, PASSED WITH THIS INTENTION, WAS THEN SENT TO THE
SENATE, WHICH AT THAT TIME WAS CONSIDERING SENATOR HOLLAND'S BILL, A
VIRTUALLY IDENTICAL MEASURE.  AFTER THE SENATE PASSED THE HOLLAND BILL,
WITH THE TWO CHANGES WHICH THE COURT DEEMS FUNDAMENTAL, CONGRESSMAN
REED, CHAIRMAN OF THE HOUSE JUDICIARY COMMITTEE, WHICH HAD REPORTED THE
HOUSE BILL, ASKED THE MEMBERS OF THE HOUSE TO ACCEDE TO THEIR BILL AS
AMENDED BY THE SENATE.  HE PREFACED HIS REMARKS BY SAYING: 

"MR. SPEAKER, I TRUST THAT 3 MINUTES WILL BE SUFFICIENT FOR ME TO SAY
ALL THAT I DEEM NECESSARY ABOUT THIS RESOLUTION."  (FN80) 

HE THEN PROCEEDED IN THESE WORDS TO TELL THE MEMBERS OF THE HOUSE
WHAT HAD HAPPENED TO THEIR BILL AS ADOPTED BY THE SENATE: 

"TITLES I AND II OF THE ORIGINAL BILL, H.R. 4198, ARE NOW BEFORE US.
THERE HAVE BEEN NO SUBSTANTIAL CHANGES MADE BY THE SENATE IN THESE
TITLES.  THEY ARE PRACTICALLY THE SAME AS WHEN PASSED BY THE HOUSE
EXCEPT IN A FEW INSTANCES WHERE A FEW WORDS AND PHRASES HERE AND THERE
HAVE BEEN CHANGED OR DELETED FOR CLARIFICATION. 

"ABOUT THE ONLY THING THAT IS SUBSTANTIALLY NEW IN THIS BILL IS A
REASSERTION BY THE SENATE IN SECTION 9 WHICH CONFIRMS THE RIGHTS OF THE
UNITED STATES TO THE JURISDICTION AND CONTROL OF THE LANDS UNDER THE
CONTINENTAL SHELF OUTSIDE OF STATE BOUNDARIES."  (FN81) 

RELYING ON THESE ASSURANCES BY CHAIRMAN REED THAT THERE HAD BEEN "NO
SUBSTANTIAL CHANGES" MADE IN THE BILL BY THE SENATE, THE HOUSE WITHOUT
FURTHER DISCUSSION OF THE PORTIONS OF THE BILL HERE INVOLVED PROCEEDED
TO ADOPT THE SENATE VERSION, WHICH AFTER BEING SIGNED BY THE PRESIDENT
BECAME THE SUBMERGED LANDS ACT OF 1953. 

THIS, THEN, IS THE LEGISLATIVE HISTORY OF THE SUBMERGED LANDS ACT,
BOTH IN THE SENATE AND IN THE HOUSE, WHICH, ACCORDING TO THE COURT,
SHOWS THAT THE SPONSORS AND SUPPORTERS OF THE ACT COMPLETELY ALTERED
THEIR INTENTION OF RESTORING TO THE STATES THE SUBMERGED LANDS WITHIN
THEIR HISTORIC BOUNDARIES, AND INSTEAD LEFT THE STATES WITH WHAT THE
COURT ALLOWS THEM TODAY.  I THINK THAT THE STATEMENTS AND ACTIONS OF
THE SUPPORTERS OF THE BILL SHOW ON THE CONTRARY THAT THE INTENTION OF
RESTORING ALL SUBMERGED LANDS UNDER ALL WATERS WITHIN HISTORIC STATE
BOUNDARIES WAS PLAINLY AND EXPLICITLY STATED AND UNDERSTOOD BY ALL FROM
THE BEGINNING, AND, DESPITE ATTACKS FROM OPPONENTS OF THE BILL, NEVER
VARIED.  TIME AND TIME AGAIN THE SENATORS AND CONGRESSMEN REPEATED THAT
THE BILL HAD NOT BEEN CHANGED IN ANY WAY TO DIMINISH THE RIGHTS GRANTED
TO THE STATES IN THE BILL AS ORIGINALLY INTRODUCED - RIGHTS WHICH, AS
THE COURT DOES NOT DISPUTE, INCLUDED THE RIGHT TO ALL SUBMERGED LANDS
UNDER ALL WATERS WITHIN HISTORIC STATE BOUNDARIES.  I WOULD FOLLOW THE
UNDERSTANDING OF THE AUTHORS AND SUPPORTERS OF THE BILL, AND I WOULD
TAKE THEM AT THEIR WORD. 

      IV. 

IN LIGHT OF THIS LEGISLATIVE HISTORY, OF WHICH I HAVE SET FORTH ONLY
A SMALL PART, I THINK THAT UNDER THE SUBMERGED LANDS ACT CALIFORNIA IS
ENTITLED TO ALL THE SUBMERGED LANDS WITHIN ITS HISTORIC BOUNDARIES, AND
THAT IT SHOULD BE GIVEN AN OPPORTUNITY TO TRY TO PROVE IN HEARINGS
BEFORE A MASTER WHERE THOSE HISTORIC BOUNDARIES WERE.  THE COURT SAYS
THAT CONGRESS LEFT IT UP TO THIS COURT TO EXPOUND THE LEGAL PRINCIPLES
WHICH SHALL DETERMINE CALIFORNIA'S CLAIMS, WITHOUT ANY REFERENCE TO THE
SUBMERGED LANDS ACT'S STATED PURPOSE TO RESTORE THE MINERAL RIGHTS OF
THE STATES IN SUBMERGED LANDS WITHIN THEIR HISTORIC BOUNDARIES.  I
THINK THE COURT IS COMPLETELY MISREADING THE INTENTIONS OF THE AUTHORS
AND SUPPORTERS OF THE ACT.  IF THERE IS ANYTHING CLEAR IN THE
LEGISLATIVE HISTORY, IT IS THAT CONGRESS WAS NOT SATISFIED WITH THE WAY
IN WHICH THIS COURT HAD DECIDED THE CALIFORNIA CASE AND DID NOT APPROVE
OF THE CONSIDERATIONS OF EXTERNAL SOVEREIGNTY USED THERE IN DETERMINING
A DOMESTIC DISPUTE OVER TITLE.  IT SEEMS TO ME THE HEIGHT OF IRONY TO
HOLD THAT AN ACT PASSED EXPRESSLY TO ESCAPE THE EFFECT OF THIS COURT'S
OPINION IN THIS FIELD IS NOW CONSTRUED AS LEAVING US FREE TO ANNOUNCE
PRINCIPLES DIRECTLY ANTITHETIC TO THE BASIC PURPOSE OF CONGRESS OF
DECIDING THAT QUESTION FOR ITSELF ONCE AND FOR ALL.  TRUE, THE CONGRESS
LEFT TO THE COURTS THE EXERCISE OF THEIR HISTORIC FUNCTION TO DECIDE
THE FACTUAL QUESTION OF WHERE A STATE'S HISTORIC BOUNDARIES, BASED ON
THOSE APPROVED WHEN IT WAS ADMITTED TO THE UNION, LIE.  BUT I THINK THE
COURT ERRS IN ARGUING REPEATEDLY THAT BY LEAVING IT TO THE COURTS TO
DECIDE THE ISSUES OF FACT IN PARTICULAR CASES, CONGRESS MEANT TO LEAVE
IT TO THIS COURT TO DETERMINE THE LEGAL PRINCIPLES GOVERNING
CALIFORNIA'S CLAIM, AND IN PARTICULAR TO DO SO BY ADOPTING A FORMULA OF
ITS OWN DEVISING BASED ON ONE USED BY THE STATE DEPARTMENT IN ITS
HANDLING OF FOREIGN AFFAIRS. 

CALIFORNIA HAS NEVER BEEN GIVEN AN OPPORTUNITY TO APPEAR AT A HEARING
TO DETERMINE WHERE ITS BOUNDARIES WERE WHEN IT CAME INTO THE UNION. 
THE 13-YEAR-OLD REPORT OF THE MASTER QUITE NATURALLY CONSIDERED THIS
ISSUE IRRELEVANT SINCE THE SUBMERGED LANDS ACT HAD NOT BEEN PASSED AT
THE TIME THAT REPORT WAS MADE.  CERTAINLY IT CANNOT BE ASSERTED THAT
CALIFORNIA'S CLAIM THAT ITS 1849 BOUNDARIES INCLUDED THESE AREAS IS
FRIVOLOUS.  BY THE TERMS OF ITS CONSTITUTION APPROVED BY CONGRESS WHEN
THE STATE WAS ADMITTED TO THE UNION IN 1850, AND OVER THE YEARS,
CALIFORNIA APPEARS TO HAVE CLAIMED THAT ITS BOUNDARIES EXTENDED BEYOND
ITS OUTLYING ISLANDS AND HAS CLAIMED AS INLAND WATERS WITHIN THOSE
BOUNDARIES ALL THE BAYS, HARBORS AND CHANNELS IN QUESTION IN THIS
LAWSUIT.  A STATEMENT IN THE ORIGINAL CALIFORNIA CONSTITUTION, (FN82)
SEVERAL OFFICIAL MAPS, INCLUDING THE ONE USED AT THE CALIFORNIA
CONSTITUTIONAL CONVENTION IN 1849, (FN83) AND OTHER EVIDENCE TEND TO
SUPPORT CALIFORNIA'S CONTENTION THAT IT HISTORICALLY OWNED THESE BAYS
AND THE CHANNEL BETWEEN THE ISLANDS AND THE MAINLAND.  BOTH STATE AND
FEDERAL COURT DECISIONS HAVE HELD AS A MATTER OF FACT AND LAW THAT SOME
OF THE VERY BAYS IN QUESTIION HERE, WHICH THE GOVERNMENT ARGUES ARE NOT
INLAND WATERS IN THE INTERNATIONAL SENSE, WERE WITHIN THE BOUNDARIES OF
THE STATE AND SUBJECT TO ITS JURISDICTION.  OCEAN INDUSTRIES, INC. V.
GREENE, 15 F.2D 862 (D.C.N.D. CAL.) (MONTEREY BAY); UNITED STATES V.
CARRILLO, 13 F. SUPP. 121 (D.C.S.D. CAL.)(SAN PEDRO BAY); PEOPLE V.
STRALLA, 14 CAL. 2D 617, 96 P.2D 941 (SANTA MONICA BAY); OCEAN
INDUSTRIES, INC. V. SUPERIOR COURT, 200 CAL. 235, 252 P. 722 (MONTEREY
BAY).  INDEED, IN ONE OF THESE CASES, PEOPLE V. STRALLA, SUPRA, THE
UNITED STATES ATTORNEY WITH THE AUTHORIZATION OF THE ATTORNEY GENERAL
OF THE UNITED STATES APPEARED AS AMICUS CURIAE AGREEING WITH THE
STATE'S ATTORNEY THAT ALL OF THE BAY IN QUESTION THERE AS HERE WAS
WITHIN CALIFORNIA'S BOUNDARIES AND SUBJECT TO ITS EXCLUSIVE TERRITORIAL
JURISDICTION.  (FN84) 

THERE MAY BE EVIDENCE WHICH TENDS TO DISPROVE THE HISTORIC VALIDITY
OF CALIFORNIA'S CLAIMS.  BUT WHAT CALIFORNIA HAS ASKED HERE IS AN
OPPORTUNITY TO PROVE WHERE ITS BOUNDARIES HISTORICALLY WERE, TO USE THE
TEST OF OWNERSHIP FIXED BY CONGRESS IN THE SUBMERGED LANDS ACT RATHER
THAN THE FOREIGN-RELATIONS TESTS SET UP BY THE SPECIAL MASTER 13 YEARS
AGO AND APPROVED BY THIS COURT TODAY FOR THE FIRST TIME.  I THINK THAT
THE LEGISLATIVE HISTORY OF THE SUBMERGED LANDS ACT SHOWS WITHOUT
QUESTION THAT THE DEFINITIONS IN IT WERE TO BE READ AS PRESERVING TO
THE MARITIME STATES THEIR CLAIMS TO SUBMERGED LANDS AND WATERS WITHIN
THEIR HISTORIC BOUNDARIES, AND THAT THOSE WHO OFFERED AND SUPPORTED THE
BILL REGARDED CALIFORNIA'S CLAIM TO THESE BAYS, HARBORS AND THE CHANNEL
OUT TO ITS OFFSHORE ISLANDS AS SOMETHING THE STATE WOULD BE ALLOWED TO
TRY TO PROVE.  IN LITIGATION TO DETERMINE THE EXTENT OF THE OUTER
LIMITS OF THE STATES' HISTORIC BOUNDARIES IN THE MARGINAL SEA IN THE
GULF OF MEXICO, TEXAS AND FLORIDA WERE ALLOWED TO PROVE THEIR HISTORIC
BOUNDARIES AND WON IN UNITED STATES V. LOUISIANA, 363 U.S. 1, AND
UNITED STATES V. FLORIDA, 363 U.S. 121, RESPECTIVELY.  LOUISIANA,
MISSISSIPPI, AND ALABAMA BASED THEIR CLAIMS IN THE GULF OF MEXICO ON
HISTORIC BOUNDARIES AND THIS COURT DECIDED AGAINST THEM ON THE FACTS IN
UNITED STATES V. LOUISIANA, SUPRA.  ALL FIVE OF THOSE STATES WERE GIVEN
AN OPPORTUNITY TO TRY TO PROVE THEIR HISTORIC BOUNDARIES, IN ORDER TO
DETERMINE THE EXTENT OF THE SUBMERGED LANDS TO WHICH THEY WERE ENTITLED
BY THE SUBMERGED LANDS ACT.  CALIFORNIA HAS HAD NO SUCH OPPORTUNITY. 
CALIFORNIA SET UP AS AN AFFIRMATIVE DEFENSE IN 1946 THAT ITS BOUNDARIES
EXTENDED TO THE POINT IT PRESENTLY CLAIMS.  WE DID NOT PASS ON THIS
CONTENTION THEN, FOR WE HELD THAT REGARDLESS OF WHERE THE HISTORIC
BOUNDARIES WERE, THE UNITED STATES HAD PARAMOUNT RIGHTS IN ALL ITS
MARGINAL SEA.  THE COURT TODAY STILL LEAVES THE QUESTION OF THE STATE'S
HISTORIC BOUNDARIES UNDECIDED, EXCEPT INSOFAR AS RELEVANT TO
INTERNATIONAL CLAIMS OF THE UNITED STATES, AND INSTEAD DECIDES THIS
CASE ON THE BASIS OF STANDARDS OF INTERNATIONAL LAW DERIVED FROM THE
REASONING OF THE 1947 CALIFORNIA CASE.  CONGRESS DID NOT, I THINK, MEAN
TO READOPT THE STANDARDS OF THE CALIFORNIA CASE, WHICH THE AUTHORS OF
THE SUBMERGED LANDS ACT SO VIOLENTLY CRITICIZED, AND TO CUT CALIFORNIA
OFF WITHOUT ANY CHANCE AT ALL TO ESTABLISH OWNERSHIP OF THESE BAYS AND
CHANNELS BY PROVING THAT THEY WERE WITHIN THE STATE'S HISTORIC
BOUNDARIES.  IN ORDER TO CARRY OUT WHAT I BELIEVE TO BE THE
CONGRESSIONAL COMMAND IN THE SUBMERGED LANDS ACT, I WOULD REFER THE
CASE TO A SPECIAL MASTER TO GIVE CALIFORNIA THAT CHANCE. 

FN1  SEE APPENDIX A. 

FN2  SEE APPENDIX B, WHICH SHOWS MONTEREY BAY, ONE OF THE BAYS IN
QUESTION.  CALIFORNIA CLAIMS THAT ALL THE SUBMERGED LAND AND WATERS
LANDWARD OF THE LINE DRAWN ACROSS THE HEADLANDS ARE INLAND WATERS
WITHIN THE HISTORIC COASTLINE OF THE STATE, AND THAT ITS HISTORIC
BOUNDARY, THE OUTER LIMIT OF ITS RIGHTS UNDER THE SUBMERGED LANDS ACT,
EXTENDS THREE MILES SEAWARD OF THAT LINE.  THE UNITED STATES CLAIMS
THAT CALIFORNIA OWNS ONLY A BELT OF SUBMERGED LANDS WITHIN THREE MILES
OF THE LOW-WATER MARK OF THE MAINLAND SHORE. 

FN3  SEE APPENDIX C. CALIFORNIA CLAIMS ALL THE SUBMERGED LAND BETWEEN
THE LINE DRAWN ALONG THE ISLANDS FROM THE MAINLAND, AND A BELT OF
MARGINAL SEA THREE MILES TO SEAWARD OF THAT LINE.  THE UNITED STATES
CONTENDS THAT CALIFORNIA IS ENTITLED ONLY TO A BELT WITHIN THREE MILES
OF THE MAINLAND SHORE AND THREE MILES AROUND EACH OF THE ISLANDS. 

FN4  ONE GEOGRAPHIC (OR MARINE OR NAUTICAL) MILE EQUALS APPROXIMATELY
1.15 STATUTE (OR LAND OR ENGLISH) MILES.  ONE MARINE LEAGUE EQUALS
THREE GEOGRAPHIC MILES OR APPROXIMATELY 3.45 STATUTE MILES. 

FN5  SEE S. REP. NO. 133, 83D CONG., 1ST SESS. (HEREAFTER CITED AS
SENATE REPORT), 21. 

FN6  THE MASTER WAS ASKED ALSO TO CONSIDER WHAT CRITERIA WERE PROPER
FOR MEASURING THE ORDINARY LOW-WATER MARK ON THE SHORE. 

FN7  67 STAT. 29, 43 U.S.C. SECS. 1301-1315 (1958 ED.). 

FN8  SEC. 3, 67 STAT. 29, 30, 43 U.S.C. SEC. 1311 (1958 ED.). 

FN9  SEC. 2(A)(2), 67 STAT. 29, 43 U.S.C. SEC. 1301(A)(2) (1958
ED.). 

FN10  SEC. 2(C), 67 STAT. 29, 43 U.S.C. SEC. 1301(C) (1958 ED.). 

FN11  SEC. 2(A)(2). 

FN12  SEC. 2(B), 67 STAT. 29, 43 U.S.C. SEC. 1301(B) (1958 ED.). 

FN13 IBID. 

FN14  THE CONSTITUTIONAL POWER OF CONGRESS TO ENACT THE SUBMERGED
LANDS ACT WAS UPHELD IN ALABAMA V. TEXAS, 347 U.S. 272. 

FN15  S.J. RES. 20, 82D CONG., 2D SESS.  FOR A SUMMARY OF EARLIER
PROPOSED LEGISLATION DEALING WITH SUBMERGED LANDS, SEE UNITED STATES V.
LOUISIANA, 363 U.S. 1, 6, N. 4. 

FN16  MESSAGE FROM THE PRESIDENT, MAY 29, 1952, S. DOC. NO. 139, 82D
CONG., 2D SESS. 

FN17  ID., P. 2. 

FN18  S.J. RES. 13, 83D CONG., 1ST SESS.  A SUBSTANTIALLY IDENTICAL
BILL, H.R. 2948, 83D CONG., 1ST SESS., WAS INTRODUCED IN THE HOUSE. 

FN19  67 STAT. 29.  THE LATTER CLAUSE, DEALING WITH THE OUTER
CONTINENTAL SHELF, WAS ADDED TO THE ORIGINAL BILL IN COMMITTEE. 

FN20  HEARINGS BEFORE THE SENATE COMMITTEE ON INTERIOR AND INSULAR
AFFAIRS ON S.J. RES.  13 AND OTHER BILLS, 83D CONG., 1ST SESS.
(HEREAFTER CITED AS SENATE HEARINGS), 31-32. 

FN21  SENATE HEARINGS 49. 

FN22  ID., 34.    FN23  ID., 512.  UNLIKE THE TRUMAN ADMINISTRATION,
THE EISENHOWER ADMINISTRATION SUPPORTED LEGISLATION TO GRANT MINERAL
RIGHTS IN SUBMERGED OFFSHORE LANDS TO THE ADJACENT STATES. 

FN24  BRIEF OF THE STATE OF TEXAS, UNITED STATES V. LOUISIANA, 363
U.S. 1, P. 50. 

FN25  SEE SENATE REPORT 14. 

FN26  SENATE HEARINGS 1378 (SENATOR CORDON).  COMPARE UNITED STATES
V. LOUISIANA, 363 U.S. 1, 33. 

FN27  ID., 1053 (DEPUTY LEGAL ADVISER TATE).  COMPARE UNITED STATES
V. LOUISIANA, 363 U.S. 1, 30-32. 

FN28  ID., 926.  ATTORNEY GENERAL BROWNELL SUGGESTED THAT A LINE BE
DRAWN ON A MAP AS PART OF THE BILL.  HE SAID THAT IF THE COMMITTEE
TRIED "TO DESCRIBE IN WORDS BAYS OR OTHER CHARACTERISTICS OF THE COAST,
UNNECESSARY LITIGATION WILL ALMOST SURELY RESULT."  IBID. 

FN29  SENATE HEARINGS 1304. 

FN30  ID., 1378. 

FN31  ID., 1383. 

FN32  ID., 1384. 

FN33  IBID. 

FN34  ID., 1385. 

FN35  99 CONG. REC. 2746. 

FN36  IBID. 

FN37  ID., 2634. 

FN38  ID., 2744. 

FN39  ID., 2830. 

FN40  SENATE REPORT 2. 

FN41  ID., 18. 

FN42  SENATE HEARINGS 1211-1229. 

FN43  THE COMMITTEE REPORT ALSO REPRINTED THE FAVORABLE REPORT OF A
SENATE COMMITTEE DURING A PREVIOUS SESSION OF A BILL WHICH THE
COMMITTEE SAID WAS "IDENTICAL IN SUBSTANCE WITH SENATE JOINT RESOLUTION
13 AS INTRODUCED."  SENATE REPORT 49.  THAT EARLIER REPORT, S. REP. NO.
1592, 80TH CONG., 2D SESS., AS QUOTED, CRITICISED THE CALIFORNIA
DECISION FOR CREATING GREAT UNCERTAINTY AS TO WHAT AREAS WOULD BE
"INLAND WATERS" WITHIN THE REASONING OF THE OPINION.  UNDER THE FEDERAL
EXTERNAL-SOVEREIGNTY REASONING OF THE CALIFORNIA CASE THE COMMITTEE SAW
NO CLEAR ANSWER TO SUCH QUESTIONS AS: 

"AT WHAT PRECISE POINT DOES A BAY BECOME A PART OF THE OPEN SEA?  ARE
WATERS LANDWARD OF OFFSHORE ISLANDS INLAND WATERS?  ARE UPLANDS FORMED
BY NATURE SUBSEQUENT TO THE DATE OF FIXING THE LOW-WATER MARK SUBJECT
TO 'THE PARAMOUNT POWER' OF THE UNITED STATES AS DEFINED BY THE COURT'S
OPINION?"  SENATE REPORT 61. 

THE COMMITTEE SOUGHT IN THE LEGISLATION TO AVOID THESE "EXTREME
COMPLEXITIES," IBID., BY ENACTING "A LAW CONSONANT WITH WHAT THE STATES
AND THE SUPREME COURT BELIEVED FOR MORE THAN A CENTURY WAS THE LAW,"
IBID., AND RESTORING TO THE STATES ALL THEIR HISTORIC PROPERTY RIGHTS
BOTH TO INLAND WATERS AND TO THE MARGINAL SEA.  THE REPORT SAID: 

"UNLESS S. 1988 AS REPORTED, IS ENACTED, CONFUSION WILL EXIST AS TO
THE OWNERSHIP AND TAXABILITY OF, AND POWERS OVER, BAYS AND THE 3-MILE
BELT  ...  .  WE CONSIDER IT AGAINST THE PUBLIC INTEREST FOR THE
FEDERAL GOVERNMENT TO COMMENCE A SERIES OF VEXATIOUS LAWSUITS AGAINST
THE SOVEREIGN STATES TO RECOVER SUBMERGED LANDS WITHIN THE BOUNDARIES
OF THE STATES, TRADITIONALLY LOOKED UPON AS THE PROPERTY OF THE STATES
UNDER A CENTURY OF PRONOUNCEMENTS BY THE SUPREME COURT REFLECTING ITS
BELIEF THAT THE STATES OWNED THESE LANDS."  ID., AT 62. 

FN44  SENATE REPORT 18. 

FN45  SEE INFRA, P. 212.  "THE SPONSORS UNDERSTOOD THIS COURT TO HAVE
ESTABLISHED, PRIOR TO THE CALIFORNIA DECISION, A RULE OF STATE
OWNERSHIP ITSELF DEFINED IN TERMS OF STATE TERRITORIAL BOUNDARIES  ...
."  UNITED STATES V. LOUISIANA, 363 U.S. 1, 19-20. 

FN46  SENATE HEARINGS 1383 (SENATOR CORDON). 

FN47  99 CONG. REC. 2984. 

FN48  SENATE REPORT 18, SUPRA, N. 44. 

FN49  99 CONG. REC. 4115. 

FN50  ID., AT 4114. 

FN51  IBID. 

FN52  SEC. 2(B), 67 STAT. 29, 43 U.S.C. SEC. 1303(B) (1958 ED.). 

FN53  SEE, E.G., 99 CONG. REC. 2917, 2975-2977, 3040, 3273, 3336
3337, 3381, 3549, 3552-3553, 3655, 3885-3886, 4085. 

FN54  COMPARE THE OUTER CONTINENTAL SHELF LANDS ACT, 67 STAT. 462, 43
U.S.C. SECS.  1331-1343 (1958 ED.), PASSED THE SAME YEAR, CLAIMING FOR
THE UNITED STATES "JURISDICTION, CONTROL, AND POWER OF DISPOSITION" OF
ALL SUBMERGED LANDS SEAWARD OF THE AREA GRANTED THE STATES IN THE
SUBMERGED LANDS ACT. 

FN55  99 CONG. REC. 4115. 

FN56  IBID. 

FN57  IBID. 

FN58  SEE, E.G., SENATE HEARINGS 48-49. 

FN59  99 CONG. REC. 2746. 

FN60  ID., 3039. 

FN61  ID., 3051. 

FN62  SENATE HEARINGS 48. 

FN63  ID., 48-49. 

FN64  ID., 50-51. 

FN65  99 CONG. REC. 4175.  SEE ALSO ID., 4477, 4478 (REMARKS OF
SENATOR DANIEL). 

FN66  ID., 4240.  SENATOR DOUGLAS SAID THAT HIS AMENDMENT WAS AIMED
AT "PREVENTING COASTAL STATES FROM PUSHING THEIR COASTAL BOUNDARIES OUT
TO A LINE ALONG THE OUTER SHORES OF REMOTE ISLANDS AND CLAIMING
EVERYTHING IN BETWEEN."  ID., 4242. 

FN67  ID., 4241. 

FN68  ID., 4242.  AN EARLIER ATTEMPT BY SENATOR DOUGLAS AND OTHERS TO
STRIKE FROM THE BILL REFERENCE TO THE HISTORIC BOUNDARIES OF THE STATES
WHEN THEY ENTERED THE UNION, AND SUBSTITUTE A LIMITATION BASED ON THE
MARGINAL WATERS CLAIMED BY THE FEDERAL GOVERNMENT UNDER INTERNATIONAL
LAW, HAD ALSO FAILED.  SEE 99 CONG. REC. 3957-3960, 4114.  SENATOR
CORDON HAD OBJECTED THAT THE "NET RESULT," OF THE AMENDMENT "WOULD BE
THAT AN ARBITRARY 3-MILE LIMIT WOULD BE ESTABLISHED, RATHER THAN TO
FOLLOW THE PHILOSOPHY OF THE JOINT RESOLUTION ITSELF.  THE RESOLUTION
PROVIDES THAT THE LIMIT BE THE STATUTORY BOUNDARY WITH WHICH A STATE
ENTERED THE UNION, OR AS SUCH BOUNDARY MAY HAVE BEEN SUBSEQUENTLY
APPROVED BY AN ACT OF THE CONGRESS."  99 CONG. REC. 4106. 

SEVERAL SIMILAR ATTEMPTS BY OPPONENTS OF THE BILL TO AMEND IT TO
RESTRICT THE STATES TO A BELT WITHIN THREE MILES OF THEIR MAINLAND
SHORES ALSO FAILED.  SENATOR MONRONEY INTRODUCED AN AMENDMENT TO LIMIT
THE AREA RESTORED TO THE STATES TO THREE MILES SEAWARD OF THE LOW-TIDE
MARK ON THE SHORE.  99 CONG. REC. 4157.  SENATOR LONG, A SUPPORTER OF
THE BILL (WHICH ALREADY CONTAINED THE TWO CHANGES WHICH THE COURT SAYS
WERE FUNDAMENTAL) PROTESTED: 

"IN VIEW OF THE FACT THAT THE CONGRESS HAS ALREADY INDICATED ITS
INTENTION OF VESTING IN THE STATES PROPRIETARY RIGHTS WITHIN THEIR
HISTORIC BOUNDARIES, DOES THE SENATOR HAVE ANY OBJECTION TO THE COURT'S
DECIDING WHAT THE HISTORIC BOUNDARIES ARE?"  99 CONG. REC. 4160. 

THE PROPOSED AMENDMENT WAS DEFEATED.  99 CONG. REC. 4203.  A SIMILAR
MEASURE INTRODUCED BY SENATOR MAGNUSON, WHICH HE EMPHASIZED WOULD HAVE
LIMITED THE STATES TO THE AMOUNT OF MARGINAL SEA WHICH THE UNITED
STATES CLAIMED IN INTERNATIONAL RELATIONS, WAS LIKEWISE DEFEATED.  99
CONG. REC. 4473-4478. 

FN69  SENATE REPORT 2. 

FN70  SENATE HEARINGS 1384 (SENATOR DANIEL). 

FN71  ID., 1304 (SENATOR CORDON). 

FN72  99 CONG. REC. 4115 (SENATOR HOLLAND). 

FN73  ID., 4361. 

FN74  H.R. 2948, 83D CONG., 1ST SESS.  SEE H.R. REP. NO. 215, 83D
CONG., 1ST SESS.  (HEREAFTER CITED AS HOUSE REPORT), 3. 

FN75  H.R. 4198, 83D CONG., 1ST SESS. 

FN76  HEARINGS BEFORE SUBCOMMITTEE NO. 1, HOUSE COMMITTEE ON THE
JUDICIARY, ON H.R. 2948 AND SIMILAR BILLS, 83D CONG., 1ST SESS., 219
220. 

FN77  HOUSE REPORT 14. 

FN78  99 CONG. REC. 2504. 

FN79  ID., 2567. 

FN80  ID., 4897. 

FN81  IBID. 

FN82  ARTICLE XII OF THE CALIFORNIA CONSTITUTION OF 1849, APPROVED
WHEN THE STATE WAS ADMITTED TO THE UNION (ACT OF SEPT. 9, 1850, 9 STAT.
452), PROVIDES: 

"THE BOUNDARY OF THE STATE OF CALIFORNIA SHALL BE AS FOLLOWS: 

"COMMENCING AT THE POINT OF INTERSECTION OF FORTY-SECOND DEGREE OF
NORTH LATITUDE WITH THE ONE HUNDRED AND TWENTIETH DEGREE OF LONGITUDE
WEST FROM GREENWICH, AND RUNNING SOUTH ON THE LINE OF SAID ONE HUNDRED
AND TWENTIETH DEGREE OF WEST LONGITUDE UNTIL IT INTERSECTS THE THIRTY
NINTH DEGREE OF NORTH LATITUDE; THENCE RUNNING IN A STRAIGHT LINE IN A
SOUTHEASTERLY DIRECTION TO THE RIVER COLORADO, AT A POINT WHERE IT
INTERSECTS THE THIRTY-FIFTH DEGREE OF NORTH LATITUDE; THENCE DOWN THE
MIDDLE OF THE CHANNEL OF SAID RIVER TO THE BOUNDARY-LINE BETWEEN THE
UNITED STATES AND MEXICO, AS ESTABLISHED BY THE TREATY OF MAY 30, 1848;
THENCE RUNNING WEST AND ALONG SAID BOUNDARY-LINE TO THE PACIFIC OCEAN,
AND EXTENDING THEREIN THREE ENGLISH MILES; THENCE RUNNING IN A
NORTHWESTERLY DIRECTION, AND FOLLOWING THE DIRECTION OF THE PACIFIC
COAST, TO THE FORTY-SECOND DEGREE OF NORTH LATITUDE; THENCE ON THE LINE
OF SAID FORTY-SECOND DEGREE OF NORTH LATITUDE TO THE PLACE OF
BEGINNING.  ALSO ALL THE ISLANDS, HARBORS, AND BAYS ALONG AND ADJACENT
TO THE PACIFIC COAST."  H.R. DOC. NO. 357, 59TH CONG., 2D SESS., 405. 

CALIFORNIA CONTENDS THAT THE INCLUSION OF THE ISLANDS OFF THE SHORE
ALSO INCLUDES WITHIN THE BOUNDARIES ALL WATERS BETWEEN THE ISLANDS AND
THE MAINLAND. 

FN83  REPRODUCED IN PART IN APPENDIX D, INFRA. 

FN84  THE BRIEF OF THE UNITED STATES ATTORNEY, FILED SUB NOM. PEOPLE
V. ADAMS, IS REPRINTED AS APPENDIX 3 TO THE BRIEF FOR THE STATE OF
CALIFORNIA IN THE PROCEEDINGS BEFORE THE SPECIAL MASTER, PP. 6-22. 
..END :









JABEN V. UNITED STATES 381 U.S. 214 


NO. 347.  ARGUED MARCH 9, 1965.  - DECIDED MAY 17, 1965.  - 333 F.2D
535, AFFIRMED. 


THE DAY BEFORE THE SIX-YEAR LIMITATION PERIOD FOR A WILLFUL ATTEMPT TO
EVADE FEDERAL INCOME TAXES WOULD HAVE EXPIRED, THE GOVERNMENT FILED A
COMPLAINT WITH A COMMISSIONER CHARGING PETITIONER WITH THAT OFFENSE. 
EXTENSION OF THE LIMITATION PERIOD FOR NINE MONTHS FROM THE FILING OF A
COMPLAINT.  THE COMPLAINANT, AN INTERNAL REVENUE SERVICE AGENT, SWORE
THAT HE HAD INVESTIGATED PETITIONER'S LIABILITY FOR THE TAXABLE YEAR BY
EXAMINING PETITIONER'S RETURNS, BY INTERVIEWING PERSONS WITH WHOM
PETITIONER DID BUSINESS AND THOSE FAMILIAR WITH HIS FINANCIAL
CONDITION, AND BY CONSULTING RECORDS REFLECTING PETITIONER'S INCOME;
AND THAT BASED ON SUCH INVESTIGATION THE COMPLAINANT HAD PERSONAL
KNOWLEDGE OF PETITIONER'S WILLFUL ATTEMPT TO EVADE HIS TAXES BY
UNDERSTATING HIS INCOME IN THE AMOUNT STATED.  THE COMMISSIONER
DETERMINED THAT THE COMPLAINT SHOWED PROBABLE CAUSE FOR BELIEVING THAT
PETITIONER HAD COMMITTED THE OFFENSE AND ISSUED A SUMMONS FOR HIM TO
APPEAR AT A PRELIMINARY HEARING, WHICH WAS NOT HELD, THE COMPLAINT
HAVING BEEN SUPERSEDED OVER A MONTH LATER BY AN INDICTMENT WITH A COUNT
APPLICABLE TO THE OFFENSE CHARGED IN THE COMPLAINT.  PETITIONER MOVED
TO DISMISS THAT COUNT AS INSUFFICIENT BECAUSE IT DID NOT SHOW PROBABLE
CAUSE FOR BELIEVING THAT HE HAD COMMITTED THE OFFENSE, A CLAIM WHICH
BOTH THE TRIAL COURT AND THE COURT OF APPEALS REJECTED.  HELD: 

1.  TO INITIATE THE TIME EXTENSION AUTHORIZED BY SEC. 6531, IT IS NOT
ENOUGH THAT THE COMPLAINT STATE THE ESSENTIAL FACTS OF THE OFFENSE OF
WILLFUL ATTEMPTED TAX EVASION BUT THE COMPLAINT MUST SHOW THAT THERE IS
PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT COMMITTED THAT OFFENSE;
AND ALL THE OTHER STEPS OF THE COMPLAINT PROCEDURE PROVIDED BY RULES 3,
4 AND 5 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE MUST BE SATISFIED. 
PP. 217-221. 

(A)  THE COMMISSIONER'S BASIC FUNCTIONS UNDER THE RULES ARE NOT JUST
TO RECEIVE A COMPLAINT SUCH AS THE ONE HERE WHICH STATES THE ESSENTIAL
FACTS OF THE OFFENSE BUT TO DETERMINE THAT PROBABLE CAUSE EXISTS AND TO
WARN THE DEFENDANT OF HIS RIGHTS.  PP. 217-219. 

(B)  THE PURPOSE OF THE EXTENSION PROVISION OF SEC. 6531 HERE
INVOLVED IS NOT TO EXTEND THE LIMITATION PERIOD SO THAT THE GOVERNMENT
CAN DEVELOP ITS CASE BUT TO AFFORD THE GOVERNMENT AN OPPORTUNITY TO
INDICT A CRIMINAL TAX OFFENDER AS TO WHOM ITS CASE IS ALREADY MADE IN
THE EVENT A GRAND JURY IS NOT IN SESSION AT THE END OF THE NORMAL
LIMITATION PERIOD.  PP. 219-220. 

(C)  THE DEFENDANT MUST BE AFFORDED A PRELIMINARY HEARING UNLESS, AS
HERE, A SUPERSEDING INDICTMENT IS OBTAINED PRIOR THERETO.  PP. 220
221. 

2.  THE COMPLAINT FILED BY AN INTERNAL REVENUE SERVICE AGENT UPON THE
BASIS OF HIS INVESTIGATION AND CONTAINING HIS SWORN STATEMENT OF
PERSONAL KNOWLEDGE DERIVED THEREFROM OF PETITIONER'S INCOME AFFORDED
PROBABLE CAUSE FOR BELIEVING THAT PETITIONER HAD COMMITTED THE OFFENSE
CHARGED.  GIORDENELLO V. UNITED STATES, 357 U.S. 480, DISTINGUISHED. 
PP. 221-225. 

3.  THE CHALLENGED COUNT OF THE INDICTMENT WAS NOT BARRED BY THE
STATUTE OF LIMITATIONS.  P. 225. 

JABEN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE STATUTE OF LIMITATIONS ON THE FELONY OF WILLFULLY ATTEMPTING TO
EVADE FEDERAL INCOME TAXES REQUIRES THE GOVERNMENT TO OBTAIN AN
INDICTMENT FOR THAT OFFENSE WITHIN SIX YEARS OF THE DATE OF ITS
COMMISSION, WITH THE PROVISO: 

"  ...  WHERE A COMPLAINT IS INSTITUTED BEFORE A COMMISSIONER OF THE
UNITED STATES WITHIN THE PERIOD ABOVE LIMITED, THE TIME SHALL BE
EXTENDED UNTIL THE DATE WHICH IS 9 MONTHS AFTER THE DATE OF THE MAKING
OF THE COMPLAINT BEFORE THE COMMISSIONER OF THE UNITED STATES  ...  ." 
INTERNAL REVENUE CODE OF 1954, SEC. 6531. 

ON APRIL 15, 1963, THE DAY BEFORE THE SIX-YEAR PERIOD WAS TO EXPIRE,
THE GOVERNMENT FILED A COMPLAINT AGAINST PETITIONER JABEN CHARGING HIM
WITH WILLFULLY FILING A FALSE RETURN FOR THE YEAR 1956.  THE
COMMISSIONER DETERMINED THAT THE COMPLAINT SHOWED PROBABLE CAUSE FOR
BELIEVING THAT JABEN HAD COMMITTED THE OFFENSE, AND, AT THE
GOVERNMENT'S REQUEST, ISSUED A SUMMONS ORDERING JABEN TO APPEAR AT A
PRELIMINARY HEARING ON MAY 15, 1963.  ON MAY 11, 1963, THE PRELIMINARY
HEARING ON THE COMPLAINT WAS CONTINUED TO MAY 22, 1963, AT THE REQUEST
OF THE UNITED STATES ATTORNEY, AND WITHOUT OBJECTION BY PETITIONER. 
THE PRELIMINARY HEARING WAS NEVER HELD SINCE, ON MAY 17, 1963, THE
GRAND JURY SUPERSEDED THE COMPLAINT PROCEDURE BY RETURNING AN
INDICTMENT AGAINST JABEN, ONE COUNT OF WHICH COVERED THE 1956 ATTEMPTED
EVASION WHICH THE COMPLAINT HAD CHARGED.  THE INDICTMENT WAS NOT
RETURNED WITHIN THE NORMAL SIX-YEAR LIMITATION PERIOD, BUT IF THE
COMPLAINT FILED WITH THE COMMISSIONER WAS VALID FOR THE PURPOSE OF
BRINGING THE NINE-MONTH EXTENSION INTO PLAY, THEN THE INDICTMENT WAS
TIMELY.  JABEN MOVED TO DISMISS THE COUNT OF THE INDICTMENT PERTAINING
TO 1956, ARGUING THAT THE COMPLAINT WAS INSUFFICIENT BECAUSE IT DID NOT
SHOW PROBABLE CAUSE FOR BELIEVING THAT HE HAD COMMITTED THE OFFENSE. 
BOTH THE TRIAL COURT AND THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT
REJECTED THIS CLAIM, 333 F.2D 535.  WE GRANTED CERTIORARI, 379 U.S.
878, TO RESOLVE A CONFLICT WITH UNITED STATES V. GREENBERG, 320 F.2D
467, DECIDED BY THE NINTH CIRCUIT, IN WHICH AN IDENTICAL CLAIM, BASED
ON A VIRTUALLY IDENTICAL COMPLAINT, WAS ACCEPTED.  FOR REASONS THAT
FOLLOW WE AGREE WITH THE EIGHTH CIRCUIT AND AFFIRM ITS JUDGMENT. 

       I. 

UNDER THE GOVERNMENT'S INTERPRETATION OF SEC. 6531, PROBABLE CAUSE IS
NOT RELEVANT TO THE COMPLAINT'S ABILITY TO INITIATE THE EXTENSION OF
THE LIMITATION PERIOD.  SECTION 6531 PROVIDES THAT THE NINE-MONTH
EXTENSION IS BROUGHT INTO PLAY "WHERE A COMPLAINT IS INSTITUTED BEFORE
A COMMISSIONER OF THE UNITED STATES" WITHIN THE SIX-YEAR PERIOD OF
LIMITATIONS (SUPRA, PP. 215-216).  RULE 3 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE DEFINES A COMPLAINT AS: 

"  ...  A WRITTEN STATEMENT OF THE ESSENTIAL FACTS CONSTITUTING THE
OFFENSE CHARGED.  IT SHALL BE MADE UPON OATH BEFORE A COMMISSIONER OR
OTHER OFFICER EMPOWERED TO COMMIT PERSONS CHARGED WITH OFFENSES AGAINST
THE UNITED STATES." 

SINCE THE GOVERNMENT'S COMPLAINT STATED THE ESSENTIAL FACTS
CONSTITUTING THE OFFENSE OF ATTEMPTED TAX EVASION AND WAS MADE UPON
OATH BEFORE A COMMISSIONER, THE GOVERNMENT CONTENDS THAT REGARDLESS OF
THE COMPLAINT'S ADEQUACY FOR ANY OTHER PURPOSES, IT WAS VALID FOR THE
PURPOSE OF TRIGGERING THE NINE-MONTH EXTENSION OF THE LIMITATION PERIOD
WHETHER OR NOT IT SHOWED PROBABLE CAUSE.  THE GOVERNMENT WOULD, THUS,
TOTALLY IGNORE THE FURTHER STEPS IN THE COMPLAINT PROCEDURE REQUIRED BY
RULES 4 AND 5.  (FN1)  INDEED IT FOLLOWS FROM ITS POSITION THAT ONCE
HAVING FILED A COMPLAINT, THE GOVERNMENT NEED NOT FURTHER PURSUE THE
COMPLAINT PROCEDURE AT ALL, AND, IN THE EVENT THAT THE DEFENDANT
PRESSED FOR A PRELIMINARY HEARING AND OBTAINED A DISMISSAL OF THE
COMPLAINT, THAT THE GOVERNMENT COULD NONETHELESS RELY UPON THE
COMPLAINT AS HAVING EXTENDED THE LIMITATION PERIOD. 

WE DO NOT ACCEPT THE GOVERNMENT'S INTERPRETATION.  ITS EFFORT TO LOOK
SOLELY TO RULE 3 AND IGNORE THE REQUIREMENTS OF THE RULES THAT FOLLOW
WOULD DEPRIVE THE INSTITUTION OF THE COMPLAINT BEFORE THE COMMISSIONER
OF ANY INDEPENDENT MEANING WHICH MIGHT RATIONALLY HAVE LED CONGRESS TO
FASTEN UPON IT AS THE METHOD FOR INITIATING THE NINE-MONTH EXTENSION. 
THE COMMISSIONER'S FUNCTION, ON THAT VIEW, WOULD BE MERELY TO RUBBER
STAMP THE COMPLAINT.  THE GOVERNMENT SEEKS TO GIVE HIS ROLE IMPORTANCE
IN ITS VERSION OF SEC. 6531 BY POINTING OUT THAT HE WOULD ADMINISTER
THE OATH, RECEIVE THE COMPLAINT, AND MAKE SURE THAT IT STATED FACTS
CONSTITUTING THE OFFENSE (A REQUIREMENT WHICH WOULD BE MET BY A CHARGE
IN THE WORDS OF THE STATUTE); BUT SURELY THESE MATTERS ARE ESSENTIALLY
FORMALITIES.  THE ARGUMENT IGNORES THE FACT THAT THE COMMISSIONER'S
BASIC FUNCTIONS UNDER THE RULES ARE TO MAKE THE JUDGMENT THAT PROBABLE
CAUSE EXISTS AND TO WARN DEFENDANTS OF THEIR RIGHTS.  FURTHERMORE, IF
WE DO NOT LOOK BEYOND RULE 3, THERE IS NO PROVISION FOR NOTIFYING THE
DEFENDANT THAT HE HAS BEEN CHARGED AND THE PERIOD OF LIMITATIONS
EXTENDED.  (INDEED, IT IS NOT UNTIL WE REACH RULE 4 THAT WE FIND A
REQUIREMENT THAT THE COMPLAINT MUST SHOW WHO IT WAS THAT COMMITTED THE
OFFENSE.)  NOTICE TO A CRIMINAL DEFENDANT IS USUALLY ACHIEVED BY
SERVICE UPON HIM OF THE SUMMONS OR ARREST WARRANT PROVIDED FOR IN RULE
4.  NEITHER IS APPROPRIATE ABSENT A JUDGMENT BY THE COMMISSIONER THAT
THE COMPLAINT SHOWS PROBABLE CAUSE, AND NO OTHER FORM OF NOTICE IS
SPECIFIED BY THE RULES. 

MORE BASICALLY, THE EVIDENT STATUTORY PURPOSE OF THE NINE-MONTH
EXTENSION PROVISION IS TO AFFORD THE GOVERNMENT AN OPPORTUNITY TO
INDICT CRIMINAL TAX OFFENDERS IN THE EVENT THAT A GRAND JURY IS NOT IN
SESSION AT THE END OF THE NORMAL LIMITATION PERIOD.  THIS IS CONFIRMED
BY THE IMMEDIATE PRECURSOR OF THE PRESENT SECTION WHICH PROVIDED FOR AN
EXTENSION "UNTIL THE DISCHARGE OF THE GRAND JURY AT ITS NEXT SESSION
WITHIN THE DISTRICT."  I.R.C. 1939, SEC. 3748(A).  (FN2)  CLEARLY THE
STATUTE WAS NOT MEANT TO GRANT THE GOVERNMENT GREATER TIME IN WHICH TO
MAKE ITS CASE (A RESULT WHICH COULD HAVE BEEN ACCOMPLISHED SIMPLY BY
MAKING THE NORMAL PERIOD OF LIMITATION SIX YEARS AND NINE MONTHS), BUT
RATHER WAS INTENDED TO DEAL WITH THE SITUATION IN WHICH THE GOVERNMENT
HAS ITS CASE MADE WITHIN THE NORMAL LIMITATION PERIOD BUT CANNOT OBTAIN
AN INDICTMENT BECAUSE OF THE GRAND JURY SCHEDULE.  THE GOVERNMENT'S
INTERPRETATION DOES NOT REFLECT THIS STATUTORY INTENTION, FOR IT
PROVIDES NO SAFEGUARD WHATEVER TO PREVENT THE GOVERNMENT FROM FILING A
COMPLAINT AT A TIME WHEN IT DOES NOT HAVE ITS CASE MADE, AND THEN USING
THE NINE-MONTH PERIOD TO MAKE IT. 

THE BETTER VIEW OF SEC. 6531 IS THAT THE COMPLAINT, TO INITIATE THE
TIME EXTENSION, MUST BE ADEQUATE TO BEGIN EFFECTIVELY THE CRIMINAL
PROCESS PRESCRIBED BY THE FEDERAL CRIMINAL RULES.  IT MUST BE
SUFFICIENT TO JUSTIFY THE NEXT STEPS IN THE PROCESS - THOSE OF
NOTIFYING THE DEFENDANT AND BRINGING HIM BEFORE THE COMMISSIONER FOR A
PRELIMINARY HEARING.  TO DO SO THE COMPLAINT MUST SATISFY THE PROBABLE
CAUSE REQUIREMENT OF RULE 4.  FURTHERMORE, WE THINK THAT THE GOVERNMENT
MUST PROCEED THROUGH THE FURTHER STEPS OF THE COMPLAINT PROCEDURE BY
AFFORDING THE DEFENDANT A PRELIMINARY HEARING AS REQUIRED BY RULE 5,
UNLESS BEFORE THE PRELIMINARY HEARING IS HELD, THE GRAND JURY
SUPERSEDES THE COMPLAINT PROCEDURE BY RETURNING AN INDICTMENT.  THIS
INTERPRETATION OF THE STATUTE REFLECTS ITS PURPOSE BY INSURING THAT
WITHIN A REASONABLE TIME FOLLOWING THE FILING OF THE COMPLAINT, EITHER
THE COMMISSIONER WILL DECIDE WHETHER THERE IS SUFFICIENT CAUSE TO BIND
THE DEFENDANT OVER FOR GRAND JURY ACTION, OR THE GRAND JURY ITSELF WILL
HAVE DECIDED WHETHER OR NOT TO INDICT.  A DISMISSAL OF THE COMPLAINT
BEFORE THE INDICTMENT IS RETURNED WOULD VITIATE THE TIME EXTENSION. 

IN THIS CASE THE GOVERNMENT OBTAINED A SUPERSEDING INDICTMENT BEFORE
ANY PRELIMINARY HEARING TOOK PLACE.  UNDER THE INTERPRETATION WHICH WE
HAVE ADOPTED IT FOLLOWS THAT IF THE COMPLAINT SATISFIED THE
REQUIREMENTS OF RULES 3 AND 4, IN PARTICULAR THE PROBABLE CAUSE
STANDARD OF RULE 4, THEN THE NINE-MONTH EXTENSION HAD COME INTO PLAY
AND HAD NOT BEEN CUT OFF BY ANY LATER DISMISSAL OF THE COMPLAINT. 
(FN3)  WE TURN THEN TO THE QUESTION WHETHER THE COMPLAINT SHOWED
PROBABLE CAUSE. 

                                          II. 

THE JABEN COMPLAINT READ AS FOLLOWS: 

"THE UNDERSIGNED COMPLAINANT, BEING DULY SWORN, STATES: 

"THAT HE IS A SPECIAL AGENT OF THE INTERNAL REVENUE SERVICE AND, IN
THE PERFORMANCE OF THE DUTIES IMPOSED ON HIM BY LAW, HE HAS CONDUCTED
AN INVESTIGATION OF THE FEDERAL INCOME TAX LIABILITY OF MAX JABEN FOR
THE CALENDAR YEAR 1956, BY EXAMINING THE SAID TAXPAYER'S TAX RETURN FOR
THE YEAR 1956 AND OTHER YEARS; BY IDENTIFYING AND INTERVIEWING THIRD
PARTIES WITH WHOM THE SAID TAXPAYER DID BUSINESS; BY CONSULTING PUBLIC
AND PRIVATE RECORDS REFLECTING THE SAID TAXPAYER'S INCOME; AND BY
INTERVIEWING THIRD PERSONS HAVING KNOWLEDGE OF THE SAID TAXPAYER'S
FINANCIAL CONDITION. 

"THAT BASED ON THE AFORESAID INVESTIGATION, THE COMPLAINANT HAS
PERSONAL KNOWLEDGE THAT ON OR ABOUT THE 16TH DAY OF APRIL, 1957, AT
KANSAS CITY, MISSOURI, IN THE WESTERN DISTRICT OF MISSOURI, MAX JABEN
DID UNLAWFULLY AND WILFULLY ATTEMPT TO EVADE AND DEFEAT THE INCOME
TAXES DUE AND OWING BY HIM TO THE UNITED STATES OF AMERICA FOR THE
CALENDAR YEAR 1956, BY FILING AND CAUSING TO BE FILED WITH THE DISTRICT
DIRECTOR OF INTERNAL REVENUE FOR THE DISTRICT OF KANSAS CITY, MISSOURI,
AT KANSAS CITY, MISSOURI, A FALSE AND FRAUDULENT INCOME TAX RETURN,
WHEREIN HE STATED THAT HIS TAXABLE INCOME FOR THE CALENDAR YEAR 1956
WAS $17,665.31, AND THAT THE AMOUNT OF TAX DUE AND OWING THEREON WAS
THE SUM OF $6,017.32, WHEN IN FACT HIS TAXABLE INCOME FOR THE SAID
CALENDAR YEAR WAS THE SUM OF $40,001.76 UPON WHICH SAID TAXABLE INCOME
HE OWED TO THE UNITED STATES OF AMERICA AN INCOME TAX OF $14,562.99. 

"(SIGNED)  DAVID A. THOMPSON  "SPECIAL AGENT 

"INTERNAL REVENUE SERVICE 

"KANSAS CITY, MISSOURI." 

PETITIONER ARGUES THAT THE COMPLAINT IS BASICALLY INDISTINGUISHABLE
FROM THAT WHICH THE COURT FOUND WANTING IN GIORDENELLO V. UNITED
STATES, 357 U.S. 480.  THE GIORDENELLO COMPLAINT READ IN RELEVANT
PART: 

"THE UNDERSIGNED COMPLAINANT BEING DULY SWORN STATES:  THAT ON OR
ABOUT JANUARY 26, 1956, AT HOUSTON, TEXAS IN THE SOUTHERN DISTRICT OF
TEXAS, VETO GIORDENELLO DID RECEIVE, CONCEAL, ETC., NARCOTIC DRUGS, TO
WIT:  HEROIN HYDROCHLORIDE WITH KNOWLEDGE OF UNLAWFUL IMPORTATION; IN
VIOLATION OF SECTION 174, TITLE 21, UNITED STATES CODE. 

"AND THE COMPLAINANT FURTHER STATES THAT HE BELIEVES THAT---- (FN4)
ARE MATERIAL WITNESSES IN RELATION TO THIS CHARGE." 

THE COMPLAINTS THERE AND HERE ARE MATERIALLY DISTINGUISHABLE. 
INFORMATION IN A COMPLAINT ALLEGING THE COMMISSION OF A CRIME FALLS
INTO TWO CATEGORIES:  (1) THAT INFORMATION WHICH, IF TRUE, WOULD
DIRECTLY INDICATE COMMISSION OF THE CRIME CHARGED, AND (2) THAT WHICH
RELATES TO THE SOURCE OF THE DIRECTLY INCRIMINATING INFORMATION.  THE
GIORDENELLO COMPLAINT GAVE NO SOURCE INFORMATION WHATSOEVER.  ITS
DIRECTLY INCRIMINATING INFORMATION CONSISTED MERELY OF AN ALLEGATION IN
THE WORDS OF THE STATUTE, AND EVEN THEN INCOMPLETE, SUPPLEMENTED BY "ON
OR ABOUT JANUARY 26, 1956, AT HOUSTON."  IF THE JABEN COMPLAINT WERE AS
BARREN, IT WOULD HAVE STATED SIMPLY THAT "ON OR ABOUT APRIL 16, 1957,
AT KANSAS CITY, MISSOURI, JABEN WILLFULLY FILED A FALSE INCOME TAX
RETURN."  IN FACT, IT GAVE DOLLARS-AND-CENTS FIGURES FOR THE AMOUNTS
WHICH ALLEGEDLY SHOULD HAVE BEEN RETURNED AND THE AMOUNTS ACTUALLY
RETURNED.  AS TO SOURCES, THE AFFIANT INDICATED THAT HE, IN HIS
OFFICIAL CAPACITY, HAD PERSONALLY CONDUCTED AN INVESTIGATION IN THE
COURSE OF WHICH HE HAD EXAMINED THE TAXPAYER'S RETURNS FOR 1956 AND
OTHER YEARS, INTERVIEWED THIRD PERSONS WITH WHOM THE TAXPAYER DID
BUSINESS AND OTHERS HAVING KNOWLEDGE OF HIS FINANCIAL CONDITION, AND
CONSULTED PUBLIC AND PRIVATE RECORDS REFLECTING THE TAXPAYER'S INCOME;
AND THAT THE CONCLUSION THAT JABEN HAD COMMITTED THE OFFENSE WAS BASED
UPON THIS INVESTIGATION. 

BEYOND THE SUBSTANCE OF THE COMPLAINT THERE IS A MATERIAL DISTINCTION
IN THE NATURE OF THE OFFENSE CHARGED.  SOME OFFENSES ARE SUBJECT TO
PUTATIVE ESTABLISHMENT BY BLUNT AND CONCISE FACTUAL ALLEGATIONS, E.G.,
"A SAW NARCOTICS IN B'S POSSESSION," WHEREAS "A SAW B FILE A FALSE TAX
RETURN" DOES NOT MEAN VERY MUCH IN A TAX EVASION CASE.  ESTABLISHMENT
OF GROUNDS FOR BELIEF THAT THE OFFENSE OF TAX EVASION HAS BEEN
COMMITTED OFTEN REQUIRES A RECONSTRUCTION OF THE TAXPAYER'S INCOME FROM
MANY INDIVIDUALLY UNREVEALING FACTS WHICH ARE NOT SUSCEPTIBLE OF A
CONCISE STATEMENT IN A COMPLAINT.  FURTHERMORE, UNLIKE NARCOTICS
INFORMANTS, FOR EXAMPLE, WHOSE CREDIBILITY MAY OFTEN BE SUSPECT, THE
SOURCES IN THIS TAX EVASION CASE ARE MUCH LESS LIKELY TO PRODUCE FALSE
OR UNTRUSTWORTHY INFORMATION.   THUS, WHEREAS SOME SUPPORTING
INFORMATION CONCERNING THE CREDIBILITY OF INFORMANTS IN NARCOTICS CASES
OR OTHER COMMON GARDEN VARIETIES OF CRIME MAY BE REQUIRED, SUCH
INFORMATION IS NOT SO NECESSARY IN THE CONTEXT OF THE CASE BEFORE US. 
GIORDENELLO V. UNITED STATES, SUPRA, AND AGUILAR V. TEXAS, 378 U.S.
108, ESTABLISHED THAT A MAGISTRATE IS INTENDED TO MAKE A NEUTRAL
JUDGMENT THAT RESORT TO FURTHER CRIMINAL PROCESS IS JUSTIFIED.  A
COMPLAINT MUST PROVIDE A FOUNDATION FOR THAT JUDGMENT.  IT MUST PROVIDE
THE AFFIANT'S ANSWER TO THE MAGISTRATE'S HYPOTHETICAL QUESTION, "WHAT
MAKES YOU THINK THAT THE DEFENDANT COMMITTED THE OFFENSE CHARGED?" 
THIS DOES NOT REFLECT A REQUIREMENT THAT THE COMMISSIONER IGNORE THE
CREDIBILITY OF THE COMPLAINING WITNESS.  THERE IS A DIFFERENCE BETWEEN
DISBELIEVING THE AFFIANT AND REQUIRING HIM TO INDICATE SOME BASIS FOR
HIS ALLEGATIONS.  OBVIOUSLY ANY RELIANCE UPON FACTUAL ALLEGATIONS
NECESSARILY ENTAILS SOME DEGREE OF RELIANCE UPON THE CREDIBILITY OF THE
SOURCE.  SEE, E.G., JOHNSON V. UNITED STATES, 333 U.S. 10, 13.  NOR
DOES IT INDICATE THAT EACH FACTUAL ALLEGATION WHICH THE AFFIANT PUTS
FORTH MUST BE INDEPENDENTLY DOCUMENTED, OR THAT EACH AND EVERY FACT
WHICH CONTRIBUTED TO HIS CONCLUSIONS BE SPELLED OUT IN THE COMPLAINT. 
COMPARE UNITED STATES V. VENTRESCA, 380 U.S. 102.  IT SIMPLY REQUIRES
THAT ENOUGH INFORMATION BE PRESENTED TO THE COMMISSIONER TO ENABLE HIM
TO MAKE THE JUDGMENT THAT THE CHARGES ARE NOT CAPRICIOUS AND ARE
SUFFICIENTLY SUPPORTED TO JUSTIFY BRINGING INTO PLAY THE FURTHER STEPS
OF THE CRIMINAL PROCESS. 

IN THIS INSTANCE THE ISSUE OF PROBABLE CAUSE COMES DOWN TO THE
ADEQUACY OF THE BASIS GIVEN FOR THE ALLEGATION THAT PETITIONER'S INCOME
WAS $40,001.76 INSTEAD OF THE $17,665.31 HE HAD REPORTED.  THIS IS NOT
THE TYPE OF FACT THAT CAN BE PHYSICALLY OBSERVED.  THE AMOUNT OF
PETITIONER'S INCOME COULD ONLY BE DETERMINED BY EXAMINING RECORDS AND
INTERVIEWING THIRD PERSONS FAMILIAR WITH PETITIONER'S FINANCIAL
CONDITION.  COMPARE HOLLAND V. UNITED STATES, 348 U.S. 121.  HERE THE
AFFIANT, A SPECIAL AGENT OF THE INTERNAL REVENUE SERVICE, SWORE THAT HE
HAD CONDUCTED JUST SUCH AN INVESTIGATION AND THEREAFTER SWORE THAT HE
HAD PERSONAL KNOWLEDGE AS TO PETITIONER'S ACTUAL INCOME.  IN SUCH
CIRCUMSTANCES, THE MAGISTRATE WOULD BE JUSTIFIED IN ACCEPTING THE
AGENT'S JUDGMENT OF WHAT HE "SAW" WITHOUT REQUIRING HIM TO BRING THE
RECORDS AND PERSONS TO COURT, TO LIST AND TOTAL THE ITEMS OF UNREPORTED
INCOME OR TO OTHERWISE EXPLAIN HOW PETITIONER'S ACTUAL INCOME WAS
CALCULATED. 

WE CONCLUDE THAT THE CHALLENGED COUNT OF THIS INDICTMENT IS NOT TIME
BARRED.  AFFIRMED. 

FN1  RULE 4(A) PROVIDES: 

"IF IT APPEARS FROM THE COMPLAINT THAT THERE IS PROBABLE CAUSE TO
BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED AND THAT THE DEFENDANT HAS
COMMITTED IT, A WARRANT FOR THE ARREST OF THE DEFENDANT SHALL ISSUE TO
ANY OFFICER AUTHORIZED BY LAW TO EXECUTE IT.  UPON THE REQUEST OF THE
ATTORNEY FOR THE GOVERNMENT A SUMMONS INSTEAD OF A WARRANT SHALL ISSUE
...  .  IF A DEFENDANT FAILS TO APPEAR IN RESPONSE TO THE SUMMONS, A
WARRANT SHALL ISSUE." 

RULE 5(C) PROVIDES: 

"  ...  IF THE DEFENDANT WAIVES PRELIMINARY EXAMINATION, THE
COMMISSIONER SHALL FORTHWITH HOLD HIM TO ANSWER IN THE DISTRICT COURT. 
IF THE DEFENDANT DOES NOT WAIVE EXAMINATION, THE COMMISSIONER SHALL
HEAR THE EVIDENCE WITHIN A REASONABLE TIME.  THE DEFENDANT MAY CROSS
EXAMINE WITNESSES AGAINST HIM AND MAY INTRODUCE EVIDENCE IN HIS OWN
BEHALF.  IF FROM THE EVIDENCE IT APPEARS TO THE COMMISSIONER THAT THERE
IS PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED AND
THAT THE DEFENDANT HAS COMMITTED IT, THE COMMISSIONER SHALL FORTHWITH
HOLD HIM TO ANSWER IN THE DISTRICT COURT; OTHERWISE THE COMMISSIONER
SHALL DISCHARGE HIM  ...  ." 

FN2  THIS PROVISION WAS INTRODUCED INTO THE TAX LAWS IN 1884 BY WAY
OF AN AMENDMENT TO A BILL PROVIDING FOR A LIMITATION PERIOD.  IN
PROPOSING THE AMENDMENT ON THE FLOOR OF THE SENATE, SENATOR HOAR
STATED: 

"AS HAS ALREADY BEEN SAID, THIS LIMITATION WHICH PURPORTS TO BE A
LIMITATION OF TWO YEARS IS IN POINT OF FACT IN MANY DISTRICTS BUT A
LIMITATION OF ONE YEAR, BECAUSE THE INDICTMENT MUST BE FOUND BY A GRAND
JURY WITHIN TWO YEARS WITHIN THE COMMISSION OF THE OFFENSE.  IF THE
OFFENSE BE CONCEALED, OR IF IT BE DISCOVERED A YEAR BEFORE THE GRAND
JURY MEET, IT WOULD BE TOO LATE TO MAKE THE PROSECUTION.  I MOVE THIS
AMENDMENT: 

"'PROVIDED, THAT WHERE A COMPLAINT SHALL BE INSTITUTED BEFORE A
COMMISSIONER OF THE UNITED STATES WITHIN THE PERIOD ABOVE LIMITED, THE
PERIOD SHALL BE EXTENDED UNTIL THE DISCHARGE OF THE GRAND JURY AT ITS
NEXT SESSION WITHIN THE DISTRICT.' 

"I THINK THERE WILL BE NO OBJECTION TO THAT."  15 CONG. REC. 5771. 
THE TIME FOR WHICH THE PERIOD WAS EXTENDED WAS CHANGED TO NINE MONTHS
IN 1954. 

FN3  A DISSENTING OPINION ACCEPTS OUR INTERPRETATION OF THE STATUTE,
BUT, LIKENING PETITIONER'S POSITION TO ONE WHO IS INCARCERATED AWAITING
A PRELIMINARY HEARING, ARGUES THAT PETITIONER WAS NOT SCHEDULED TO HAVE
A PRELIMINARY HEARING WITHIN THE "REASONABLE TIME" REQUIRED BY RULE
5(C).  WE REJECT THIS VIEW OF THE CASE.  (1) ALTHOUGH THE STATUTE
SHOULD BE INTERPRETED TO REFLECT ITS INTENT, IT GREATLY OVERPLAYS THAT
INTENT TO INVEST THE PROCEDURE REQUIRED TO EFFECTUATE IT WITH THE SAME
SENSE OF URGENCY WHICH MIGHT BE THOUGHT TO ATTEND A PRELIMINARY HEARING
FOR AN INCARCERATED PRISONER.  (2) A DEFENDANT CAN FULLY PROTECT
HIMSELF FROM UNREASONABLE DELAY BY MOVING FOR ADVANCEMENT OF THE
PRELIMINARY HEARING DATE AND BY OBJECTING TO ANY POSTPONEMENTS. 
PETITIONER MADE NO SUCH MOTION OR OBJECTION, AND AT NO POINT IN THE
TRIAL OR APPELLATE REVIEW OF THIS CASE HAS HE OBJECTED TO THE
SCHEDULING OF THE PRELIMINARY HEARING. 

MALLORY V. UNITED STATES, 354 U.S. 449, DID NOT DEAL WITH PRELIMINARY
HEARINGS UNDER RULE 5(C), BUT WITH THE REQUIREMENT OF RULE 5(A) THAT A
PERSON WHO IS ARRESTED MUST BE TAKEN "WITHOUT UNNECESSARY DELAY BEFORE
THE NEAREST AVAILABLE COMMISSIONER" SO THAT HE CAN BE APPRISED OF HIS
RIGHTS. 

FN4  SO IN ORIGINAL. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACK JOINS, CONCURRING IN
THE JUDGMENT. 

THE COURT REJECTS THE CONTENTION OF THE GOVERNMENT THAT THE FILING OF
A COMPLAINT FULFILLING THE REQUIREMENTS OF RULE 3 SUFFICES TO TRIGGER
THE PROVISIONS OF SEC. 6531 EXTENDING THE PERIOD OF LIMITATIONS.  THE
COURT HOLDS THAT THE COMPLAINT MUST ALSO SATISFY THE PROBABLE-CAUSE
REQUIREMENT OF RULE 4 AND THAT THE GOVERNMENT MUST PROCEED WITH THE
PRELIMINARY HEARING UNDER RULE 5.  SECTION 6531 PROVIDES THAT "WHERE A
COMPLAINT IS INSTITUTED" THE TIME SHALL BE EXTENDED.  ASSUMING THAT THE
"COMPLAINT" SPECIFIED IN THIS PROVISION IS ONE SATISFYING RULE 4 AS
WELL AS RULE 3, THE STATUTE AFFORDS NO BASIS WHATEVER FOR THE COURT'S
HOLDING THAT THE GOVERNMENT MUST PROCEED WITH THE PRELIMINARY HEARING
AND THAT "DISMISSAL OF THE COMPLAINT BEFORE THE INDICTMENT IS RETURNED
WOULD VITIATE THE TIME EXTENSION," ANTE, AT 220, EVEN THOUGH AN
INDICTMENT WERE OBTAINED THEREAFTER WITHIN THE NINE-MONTH PERIOD.  THE
STATUTE IS UNEQUIVOCAL THAT THE PERIOD IS EXTENDED WHEN THE COMPLAINT
IS INSTITUTED AND, IN MY VIEW, REQUIRES NOTHING FURTHER OF THE
GOVERNMENT. 

BECAUSE I AGREE WITH THE COURT THAT THE COMPLAINT SUPPLIED AN
ADEQUATE FOUNDATION FOR THE COMMISSIONER'S DETERMINATION THAT PROBABLE
CAUSE EXISTED, I DEEM IT UNNECESSARY TO CONSIDER WHETHER SEC. 6531
CONTEMPLATES A COMPLAINT ESTABLISHING PROBABLE CAUSE OR MERELY
COMPLIANCE WITH RULE 3. 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

                                          I. 

I AGREE WITH THE COURT THAT THE PURPOSE OF THE TOLLING PROVISION IN
THE STATUTE OF LIMITATIONS BEFORE US, AS EVIDENCED BY ITS LANGUAGE AND
ITS LEGISLATIVE HISTORY, IS TO AVOID PENALIZING THE GOVERNMENT WHEN A
CRIMINAL DEFENDANT CANNOT BE INDICTED MERELY BECAUSE NO GRAND JURY IS
SITTING AT THE TIME THE LIMITATION PERIOD EXPIRES.  IN KEEPING WITH
THIS PURPOSE, THE GOVERNMENT OUGHT TO BE ALLOWED TO PRESENT A CASE
PREPARED BEFORE THE EXPIRATION OF THE LIMITATION PERIOD TO THE GRAND
JURY WHEN IT NEXT CONVENES, BUT IT OUGHT NOT TO BE ALLOWED TO TAKE
ADVANTAGE OF A NINE-MONTH EXTENSION TO PREPARE A CASE WHICH WAS NOT
READY FOR SUBMISSION BEFORE THE END OF THE STATUTORY PERIOD.  I BELIEVE
THAT THE COURT, THEREFORE, IS QUITE CORRECT IN REJECTING THE
GOVERNMENT'S ARGUMENT THAT THE FILING OF ANY COMPLAINT WHICH MEETS THE
FORMAL REQUIREMENTS OF RULE 3 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE IS SUFFICIENT TO TOLL THE STATUTE OF LIMITATIONS.  THE
GOVERNMENT'S ARGUMENT WOULD, IN EFFECT, ALLOW IT AN ADDITIONAL NINE
MONTHS IN EVERY CASE.  RATHER, THE VIEW THAT I WOULD ACCEPT AS CORRECT
IS THAT THE ONLY COMPLAINT THAT TOLLS THE STATUTE IS ONE THAT BEGINS
EFFECTIVELY THE CRIMINAL PROCESS PRESCRIBED BY THE FEDERAL RULES. 

I FURTHER AGREE WITH THE COURT THAT A COMPLAINT HAS EFFECTIVELY BEGUN
THE CRIMINAL PROCESS ONLY WHEN ALL OF THE PRE-INDICTMENT STEPS DETAILED
IN RULES 3, 4, AND 5 HAVE BEEN TAKEN.  ONLY WHEN IT HAS BEEN DETERMINED
IN THE PRELIMINARY HEARING REQUIRED BY RULE 5 THAT PROBABLE CAUSE
EXISTS "TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED AND THAT THE
DEFENDANT HAS COMMITTED IT" CAN WE SAY WITH ANY ASSURANCE THAT THE
COMPLAINT WAS NOT FILED MERELY TO EXTEND THE LIMITATION PERIOD, BUT
THAT IT WAS A COMPLAINT WHICH DOES WHAT A COMPLAINT NORMALLY DOES,
NAMELY, STARTS THE CRIMINAL PROCEDURE IN MOTION.  A SPEEDY
DETERMINATION BY A DISINTERESTED MAGISTRATE - THE UNITED STATES
COMMISSIONER - THAT PROBABLE CAUSE EXISTS ALSO PROVIDES ASSURANCE THAT
THE GOVERNMENT IN FACT HAD A CASE READY FOR PRESENTATION TO THE GRAND
JURY BEFORE THE LIMITATION PERIOD EXPIRED.  THUS I JOIN THE COURT'S
OPINION INSOFAR AS IT HOLDS THAT ONLY THOSE COMPLAINTS TOLL THE STATUTE
OF LIMITATIONS WHICH ALSO START THE CRIMINAL MACHINERY IN MOTION BY
LEADING TO A PRELIMINARY HEARING IN COMPLIANCE WITH RULES 3, 4, AND 5. 

                                        II. 

THE FACTS OF THIS CASE LEAD ME TO CONCLUDE, HOWEVER, THAT THE
PROCEDURE OUTLINED IN RULE 5 WAS NOT FOLLOWED, FOR A PRELIMINARY
HEARING WAS NOT SCHEDULED WITHIN A REASONABLE TIME AS THE RULE
REQUIRES.   A PERSON WHO IS ARRESTED MUST BE TAKEN BEFORE A
COMMISSIONER IMMEDIATELY AND INFORMED OF HIS RIGHTS, AND A PRELIMINARY
EXAMINATION TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT
AN OFFENSE HAS BEEN COMMITTED AND THAT HE COMMITTED IT MUST BE HELD AT
THAT TIME OR PROMPTLY THEREAFTER.  SEE MALLORY V. UNITED STATES, 354
U.S. 449, 454.  THIS PRELIMINARY EXAMINATION MUST BE HELD PROMPTLY
BECAUSE IT NORMALLY DETERMINES WHETHER HOLDING A DEFENDANT IN CUSTODY
PENDING ACTION BY THE GRAND JURY IS WARRANTED.  EVEN WHEN A DEFENDANT
IS NOT ACTUALLY IN CUSTODY BUT IS FREE ON BOND A SPEEDY HEARING IS
STILL NECESSARY, FOR HE SHOULD NOT BE REQUIRED TO MAINTAIN BOND UNLESS
IT HAS BEEN DETERMINED BY A DISINTERESTED COMMISSIONER THAT PROBABLE
CAUSE EXISTS.  WHILE NORMALLY WHEN A SUMMONS IS ISSUED, RATHER THAN AN
ARREST WARRANT, THE PERIOD OF TIME WITHIN WHICH A PRELIMINARY
EXAMINATION MUST BE HELD MAY BE LONGER THAN WHEN A DEFENDANT HAS BEEN
ARRESTED, FOR HE IS NOT IN CUSTODY NOR NEED HE POST BOND, IN THE
SPECIAL CIRCUMSTANCES PRESENT HERE INVOLVING A STATUTORY PERIOD OF
REPOSE, IT IS IMPORTANT THAT THE PRELIMINARY HEARING BE HELD WITH
EXPEDITION SIMILAR TO THAT NECESSARY WHEN THE DEFENDANT IS IN CUSTODY
OR FREE ON BOND.  A PROMPT PRELIMINARY HEARING IN THIS TYPE OF CASE
SERVES AS A CHECK TO PREVENT THE GOVERNMENT FROM BEGINNING A
PROSECUTION WHEN A CASE IS NOT READY FOR SUBMISSION TO THE GRAND JURY
BEFORE THE LIMITATION PERIOD EXPIRES.  I SHOULD THINK THAT, IN VIEW OF
THIS PURPOSE, IT WOULD BE SOUND PRACTICE, CONSISTENT WITH THE STATUTORY
POLICY OF REPOSE, TO HOLD THE PRELIMINARY HEARING AND SECURE A
MAGISTRATE'S DETERMINATION OF PROBABLE CAUSE BEFORE THE STATUTORY
PERIOD EXPIRES.  ONLY THEN CAN IT BE CERTAIN THAT THE GOVERNMENT HAS
EVIDENCE SHOWING PROBABLE CAUSE AT HAND BEFORE THE END OF THE
LIMITATION PERIOD.  AND, IN AN EXCEPTIONAL CASE, SUCH AS THE ONE BEFORE
US, WHERE THE COMPLAINT IS FILED SO LATE THAT THE HEARING CANNOT BE
HELD WITHIN THE LIMITATION PERIOD, SURELY, IN ORDER TO SERVE THE
STATUTORY PURPOSE, THE HEARING MUST BE HELD WITH THE SAME PROMPTNESS AS
WHEN A DEFENDANT IS IN CUSTODY OR ON BOND, EVEN THOUGH A SUMMONS,
RATHER THAN AN ARREST WARRANT, WAS ISSUED. 

IN THIS CASE THE COMPLAINT WAS FILED THE DAY BEFORE THE LIMITATION
PERIOD EXPIRED.  IN ACCORDANCE WITH THE GOVERNMENT'S WISHES, THE
SUMMONS WAS MADE RETURNABLE 30 DAYS LATER, AND, AT THE GOVERNMENT'S
SUBSEQUENT REQUEST, THE HEARING DATE WAS POSTPONED AN ADDITIONAL WEEK. 
IN MY VIEW, TO SCHEDULE A HEARING TO BE HELD 36 DAYS AFTER THE
LIMITATION PERIOD EXPIRES, WHEN THAT HEARING NORMALLY SHOULD HAVE BEEN
HELD BEFORE THE END OF THE STATUTORY TIME FOR PROSECUTION, IS NOT TO
SCHEDULE IT WITHIN THE "REASONABLE TIME" WHICH THE COURT ITSELF SAYS IS
REQUIRED.  NOR CAN IT BE SAID UNDER THE CIRCUMSTANCES HERE PRESENT THAT
THE PETITIONER WAIVED THE RIGHT TO HAVE THE PROBABLE CAUSE
DETERMINATION MADE PROMPTLY.  WHATEVER THE BURDEN ON A DEFENDANT MAY BE
UNDER OTHER CIRCUMSTANCES TO MOVE TO ACCELERATE A DATE FIXED BY A
COMMISSIONER UPON AN EX PARTE APPLICATION OF THE GOVERNMENT, IT WOULD
BE UNJUST TO APPLY ANY WAIVER CONCEPT HERE.  UNTIL THE HOLDING TODAY
THERE WAS NO AUTHORITATIVE CONSTRUCTION THAT THE STATUTE, READ IN
CONJUNCTION WITH THE FEDERAL CRIMINAL RULES, ENTITLES THE CHARGED
DEFENDANT TO A HEARING AFTER ISSUANCE OF A SUMMONS.  THERE IS NO BASIS,
THEREFORE, FOR CONCLUDING THAT PETITIONER, BY BEING SILENT UNDER THESE
CIRCUMSTANCES, KNOWINGLY AND CONSCIOUSLY WAIVED HIS RIGHT TO A SPEEDY
HEARING AND DETERMINATION OF WHETHER PROBABLE CAUSE EXISTED. 

I WOULD CONCLUDE THAT A PRELIMINARY HEARING, WHICH WAS TO DETERMINE
WHETHER PROBABLE CAUSE EXISTED, WAS NOT HELD WITHIN A "REASONABLE TIME"
AS RULE 5 REQUIRES, AND THAT SINCE THE GOVERNMENT DID NOT FULFILL ALL
THE REQUIREMENTS OF THIS RULE, THE COMPLAINT DID NOT SERVE TO INSTITUTE
THE PROPER PRE-INDICTMENT CRIMINAL PROCEDURE.  IT THEREFORE, IN MY
VIEW, WAS NOT THE TYPE OF COMPLAINT THAT TOLLS THE STATUTE OF
LIMITATIONS UNDER INTERNAL REVENUE CODE SEC. 6531, AND PETITIONER'S
PROSECUTION SHOULD BE BARRED. 
III. 

WHILE IT IS NOT NECESSARY, UNDER MY VIEW OF THIS CASE, TO DETERMINE
WHETHER THE COMPLAINT SHOWED PROBABLE CAUSE, SINCE THE COURT REACHES
THAT ISSUE, I BELIEVE IT APPROPRIATE TO EXPRESS MY DISAGREEMENT WITH
ITS CONCLUSION.  IF THE COURT MEANS THAT THE STANDARD OF PROBABLE CAUSE
REQUIRED FOR THE ISSUANCE OF A SUMMONS DIRECTING THE DEFENDANT TO
APPEAR FOR A PRELIMINARY HEARING IS THE SAME AS THE STANDARD REQUIRED
FOR ISSUANCE OF A SEARCH WARRANT OR AN ARREST WARRANT, WHICH WILL PLACE
THE DEFENDANT UNDER IMMEDIATE PHYSICAL RESTRAINT, THE COMPLAINT BEFORE
US FAILS TO DEMONSTRATE PROBABLE CAUSE, FOR IT CLEARLY FAILS TO MEET
THE STANDARDS LAID DOWN IN GIORDENELLO V. UNITED STATES, 357 U.S. 480,
AND AGUILAR V. TEXAS, 378 U.S. 108. 

THIS COURT IN GIORDENELLO HELD THAT A FINDING OF "PROBABLE CAUSE"
MUST BE MADE BY A "NEUTRAL AND DETACHED" MAGISTRATE WHO "ASSESSES
INDEPENDENTLY THE PROBABILITY THAT  ...  AN ACCUSED COMMITTED THE CRIME
CHARGED."  GIORDENELLO V. UNITED STATES, SUPRA, AT 486-487.  THE COURT
ALSO STATED: 

"THE PURPOSE OF THE COMPLAINT  ...  IS TO ENABLE THE APPROPRIATE
MAGISTRATE  ...  TO DETERMINE WHETHER THE 'PROBABLE CAUSE' REQUIRED TO
SUPPORT A WARRANT EXISTS.  THE COMMISSIONER MUST JUDGE FOR HIMSELF THE
PERSUASIVENESS OF THE FACTS RELIED ON BY A COMPLAINING OFFICER TO SHOW
PROBABLE CAUSE.  HE SHOULD NOT ACCEPT WITHOUT QUESTION THE
COMPLAINANT'S MERE CONCLUSION THAT THE PERSON WHOSE ARREST IS SOUGHT
HAS COMMITTED A CRIME."  ID., AT 486. 

IN ORDER TO MAKE AN INDEPENDENT DETERMINATION THAT PROBABLE CAUSE
EXISTS, THE MAGISTRATE MUST BE PRESENTED WITH MORE THAN THE FACT THAT
THE AFFIANT OR HIS SOURCES ARE RELIABLE AND THE AFFIANT'S CONCLUSION
THAT THE ACCUSED IS BELIEVED TO HAVE COMMITTED A CRIME.  AS WE STATED
IN AGUILAR V. TEXAS, SUPRA, AT 114, THE MAGISTRATE OR COMMISSIONER MUST
ALSO "BE INFORMED OF SOME OF THE UNDERLYING CIRCUMSTANCES" SUPPORTING
THE AFFIANT'S BELIEF THAT THE ACCUSED HAS COMMITTED A CRIME.  THIS
STATEMENT WAS RECENTLY REAFFIRMED IN UNITED STATES V. VENTRESCA, 380
U.S. 102, 108.  TO ALLOW A MAGISTRATE TO FIND PROBABLE CAUSE WHEN A
RELIABLE AFFIANT DOES NO MORE THAN SWEAR, AS THE AGENT DID HERE, THAT
HIS INVESTIGATIONS LED HIM TO CONCLUDE THAT PETITIONER UNDERSTATED HIS
INCOME, IS TO REMOVE THE FUNCTION OF MAKING AN INDEPENDENT
DETERMINATION OF PROBABLE CAUSE FROM THE HANDS OF THE MAGISTRATE AND TO
PLACE IT IN THE HANDS OF THE AGENT. 

THE AFFIDAVIT PRESENTED BY THE REVENUE AGENT IN THIS CASE DOES NO
MORE THAN LIST THE AGENT'S SOURCES OF INFORMATION - EXAMINATION OF
PUBLIC AND PRIVATE RECORDS AND INTERVIEWS WITH THIRD PERSONS - AND
CONCLUDES THAT THE PETITIONER UNDERSTATED HIS INCOME.  WITHOUT THE
SLIGHTEST INDICATION OF WHAT THE AGENT'S EXAMINATIONS AND INTERVIEWS
REVEALED, IT IS IMPOSSIBLE FOR A "NEUTRAL AND DETACHED MAGISTRATE" TO
DETERMINE FOR HIMSELF WHETHER PROBABLE CAUSE EXISTED.  THE AGENT NEED
NOT SET OUT ALL THE INFORMATION OBTAINED, BUT, AS WE HELD IN AGUILAR,
SOME OF THE UNDERLYING FACTS MUST BE INDICATED. 

I CANNOT ACCEPT THE COURT'S VIEW THAT THE NATURE OF THE OFFENSE
CHARGED IN THIS CASE EXCUSES THE GOVERNMENT FROM SETTING OUT ANY OF THE
FACTS UNDERLYING THE CONCLUSION THAT THE PETITIONER UNDERSTATED HIS
INCOME.  SURELY, DEFENDANTS IN CRIMINAL TAX CASES - WHETHER BASED UPON
A NET WORTH THEORY OR OTHERWISE - ARE AS ENTITLED TO A MAGISTRATE'S
INDEPENDENT DETERMINATION OF "PROBABLE CAUSE" AS ANY OTHER DEFENDANTS. 
FURTHERMORE, I DO NOT BELIEVE IT IMPOSSIBLE, OR EVEN VERY DIFFICULT,
FOR THE GOVERNMENT TO GIVE SOME INDICATION OF THE TYPE OF INFORMATION
OBTAINED THROUGH ITS PERUSAL OF PETITIONER'S BOOKS AND ITS INTERVIEWS
WITH THIRD PERSONS.  BUT I DO BELIEVE THAT IT IS IMPOSSIBLE FOR A
MAGISTRATE OR COMMISSIONER TO DETERMINE WHETHER PROBABLE CAUSE EXISTS
WITHOUT SOME INDICATION OF THE FACTS WHICH LED THE AFFIANT TO HIS
CONCLUSION. 

IT IS AS TRUE OF THE COMPLAINT BEFORE US AS OF THE AFFIDAVIT IN
GIORDENELLO THAT "IT IS DIFFICULT TO UNDERSTAND HOW THE COMMISSIONER
COULD BE EXPECTED TO ASSESS INDEPENDENTLY THE PROBABILITY THAT
PETITIONER COMMITTED THE CRIME CHARGED."  357 U.S., AT 486-487.  IN MY
VIEW, GIORDENELLO AND AGUILAR REQUIRE THAT THE COMPLAINT NOT ONLY STATE
THE ULTIMATE CONCLUSION THAT PETITIONER UNDERSTATED HIS INCOME AND SET
OUT THE SOURCES OF INFORMATION LEADING TO THAT CONCLUSION, BUT THAT IT
ALSO SET OUT SOME OF THE UNDERLYING FACTS UPON WHICH THAT CONCLUSION IS
BASED.  SINCE NONE OF THE UNDERLYING FACTS ARE SET OUT IN THE COMPLAINT
BEFORE US, I CONCLUDE THAT THE PROBABLE CAUSE STANDARD OF GIORDENELLO
AND AGUILAR IS NOT MET.  FOR ALL THE REASONS STATED, I WOULD REVERSE
THE JUDGMENT OF THE COURT OF APPEALS. 
..END :











UNITED STATES V. ATLAS LIFE INSURANCE CO. 381 U.S. 233 


NO. 489.  ARGUED MARCH 31, 1965.  - DECIDED MAY 17, 1965.  - 333 F.2D
389, REVERSED. 


THE LIFE INSURANCE COMPANY INCOME TAX ACT OF 1959 PROVIDES FOR THE
DIVISION OF AN INSURANCE COMPANY'S INVESTMENT INCOME INTO TWO PARTS,
THE POLICYHOLDERS' SHARE (TO BE ADDED TO RESERVES FOR PAYMENT OF FUTURE
CLAIMS), AND THE COMPANY'S SHARE, WITH A PRO RATA ALLOCATION OF EACH
ITEM OF INCOME TO EACH SHARE INCLUDING TAX-EXEMPT INTEREST.  ONLY THE
COMPANY'S SHARE IS SUBJECT TO THE TAX AND FROM THIS SHARE THE ACT
PERMITS A DEDUCTION OF ITS PRO RATA AMOUNT OF TAX-EXEMPT INTEREST TO
ARRIVE AT TAXABLE INCOME.  THE ACT CONTAINS EXCEPTIONS WHERE THE
APPLICATION OF THE DEFINITION OF TAXABLE INVESTMENT INCOME RESULTS IN
THE IMPOSITION OF TAX ON "ANY INTEREST WHICH UNDER SECTION 103 IS
EXCLUDED FROM GROSS INCOME" - INTEREST EARNED ON STATE AND MUNICIPAL
BONDS - IN WHICH CASE AN ADJUSTMENT SHALL BE MADE TO PREVENT SUCH
IMPOSITION.  RESPONDENT CLAIMS THAT IT IS ENTITLED TO DEDUCT FROM TOTAL
INCOME BOTH THE FULL AMOUNT OF THE POLICYHOLDERS' SHARE AND THE FULL
AMOUNT OF EXEMPT INTEREST RECEIVED; OTHERWISE, BY ASSIGNING PART OF THE
EXEMPT INTEREST TO THE POLICYHOLDERS' SHARE, THE STATUTE WOULD PLACE
MORE TAXABLE INCOME IN THE COMPANY'S SHARE AND THUS THE COMPANY WOULD
PAY MORE TAX BECAUSE IT HAS RECEIVED TAX-EXEMPT INTEREST, SINCE IT MUST
ALLOCATE A PORTION THEREOF TO THE RESERVE ACCOUNT.  RESPONDENT SUED IN
DISTRICT COURT FOR A REFUND CLAIMING AN ADJUSTMENT UNDER THE STATUTORY
EXCEPTIONS AND ASSERTING THAT THE TREATMENT OF TAX-EXEMPT INTEREST WAS
UNCONSTITUTIONAL AND CONTRARY TO NATIONAL LIFE INS. CO. V. UNITED
STATES, 277 U.S. 508, AND MISSOURI INS. CO. V. GEHNER, 281 U.S. 313. 
THE DISTRICT COURT REJECTED THESE CLAIMS BUT THE COURT OF APPEALS
REVERSED.  HELD:  THERE IS NO STATUTORY OR CONSTITUTIONAL BARRIER TO
THE APPLICATION IN THIS CASE OF THE PRO RATA FORMULA SET FORTH IN THE
ACT TO COMPUTE RESPONDENT'S TAXABLE INCOME, AND THE STATUTORY
EXCEPTIONS ARE NOT APPLICABLE.  PP. 239-251. 

(A)  THE LEGISLATIVE HISTORY CLEARLY SHOWS THAT CONGRESS INTENDED THE
PRO RATA FORMULA TO BE OF GENERAL APPLICATION AND THAT CONGRESS DID NOT
CONSIDER IT TO LAY A TAX ON EXEMPT INTEREST IN THE USUAL CASE, SUCH AS
THIS ONE.  PP. 239-242. 

(B)  THIS TAX IS NOT INCONSISTENT WITH THE RULE OF NATIONAL LIFE,
SUPRA, THAT "ONE MAY NOT BE SUBJECTED TO GREATER BURDENS UPON HIS
TAXABLE PROPERTY SOLELY BECAUSE HE OWNS SOME THAT IS FREE," SINCE THE
DISPLACEMENT OF TAXABLE INCOME WITH EXEMPT INCOME UNDER THE FORMULA
REDUCES THE TAX BASE AND THE BURDEN PER TAXABLE DOLLAR REMAINS THE
SAME.  PP. 243-244. 

(C)  THE EXTENSION OF THE RULE OF NATIONAL LIFE IN MISSOURI INS. CO.
V. GEHNER, SUPRA, WAS UNEXPLAINED AND WAS NOT FOLLOWED IN DENMAN V.
SLAYTON, 282 U.S. 514, DECIDED BUT ONE TERM AFTER GEHNER, AND HELVERING
V. INDEPENDENT LIFE INS. CO., 292 U.S. 371, WHICH HOLD THAT
DISALLOWANCE OF AN EXPENSE ATTRIBUTABLE TO THE PRODUCTION OF NONTAXABLE
INCOME IS NOT TO IMPOSE AN IMPERMISSIBLE TAX ON THE EXEMPT RECEIPTS. 
PP. 244-247. 

(D)  RESPONDENT HAS AN OBLIGATION TO SET ASIDE EACH YEAR A LARGE
PORTION OF ITS INCOME FOR THE BENEFIT OF POLICYHOLDERS, FROM WHOM IT
OBTAINS MOST OF ITS FUNDS; THE POLICYHOLDERS' CLAIM AGAINST INCOME IS
SUFFICIENTLY DIRECT AND IMMEDIATE TO JUSTIFY TREATING A MAJOR PORTION
OF INCOME NOT AS INCOME TO THE COMPANY BUT AS INCOME TO THE
POLICYHOLDERS.  PP. 247-248. 

(E)  THE PRO RATA FORMULA TREATS TAXABLE AND EXEMPT INCOME IN THE
SAME WAY, DEEMING THAT BOTH ARE SADDLED WITH AN EQUAL SHARE OF THE
COMPANY'S OBLIGATION TO POLICYHOLDERS.  IT DOES NO MORE THAN CHARGE THE
EXEMPT INCOME WITH A FAIR SHARE OF THE BURDENS PROPERLY ALLOCABLE TO
IT, WHICH IS PERMISSIBLE UNDER DENMAN AND INDEPENDENT LIFE, SUPRA.  PP.
249-251. 

UNITED STATES V. ATLAS LIFE INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE LIFE INSURANCE COMPANY INCOME TAX ACT OF 1959, (FN1) WHICH
REPRESENTS A COMPREHENSIVE OVERHAUL OF THE LAWS RELATING TO THE
TAXATION OF LIFE INSURANCE COMPANIES, PLACES A TAX UPON TAXABLE
INVESTMENT INCOME AND UPON ONE-HALF THE AMOUNT BY WHICH TOTAL GAIN FROM
OPERATIONS EXCEEDS TAXABLE INVESTMENT INCOME.  (FN2)  IN ARRIVING AT
TAXABLE INVESTMENT INCOME AND GAIN FROM OPERATIONS, THE 1959 ACT,
CONSISTENT WITH PRIOR LAW IN THIS REGARD, RECOGNIZES THAT LIFE
INSURANCE COMPANIES ARE REQUIRED BY LAW TO MAINTAIN POLICYHOLDER
RESERVES TO MEET FUTURE CLAIMS, THAT THEY NORMALLY ADD TO THESE
RESERVES A LARGE PORTION OF THEIR INVESTMENT INCOME AND THAT THESE
ANNUAL RESERVE INCREMENTS SHOULD NOT BE SUBJECTED TO TAX.  THE QUESTION
IN THIS CASE IS WHETHER THE METHOD BY WHICH CONGRESS CHOSE TO DEAL WITH
THESE ANNUAL RESERVE INCREMENTS AND TO ARRIVE AT TAXABLE INVESTMENT
INCOME PLACES AN IMPERMISSIBLE TAX ON THE INTEREST EARNED BY LIFE
INSURANCE COMPANIES FROM MUNICIPAL BONDS, WITHIN THE MEANING OF THE ACT
ITSELF AND THE RELEVANT CASES IN THIS COURT. 

              I. 

THE 1959 ACT DEFINES LIFE INSURANCE COMPANY RESERVES, (FN3) PROVIDES
A RATHER INTRICATE METHOD FOR ESTABLISHING THE AMOUNT WHICH FOR TAX
PURPOSES IS DEEMED TO BE ADDED EACH YEAR TO THESE RESERVES (FN4) AND IN
SEC. 804 PRESCRIBES A DIVISION OF THE INVESTMENT INCOME OF AN INSURANCE
COMPANY INTO TWO PARTS, THE POLICYHOLDERS' SHARE AND THE COMPANY'S
SHARE.  (FN5)  MORE SPECIFICALLY, THE TOTAL AMOUNT TO BE ADDED TO THE
RESERVE - THE POLICY AND OTHER CONTRACT LIABILITY REQUIREMENTS - IS
DIVIDED BY THE TOTAL INVESTMENT YIELD (FN6) AND THE RESULTING
PERCENTAGE IS USED TO ALLOCATE EACH ITEM OF INVESTMENT INCOME,
INCLUDING TAX-EXEMPT INTEREST, PARTLY TO THE POLICYHOLDERS AND PARTLY
TO THE COMPANY.  IN THIS CASE, APPROXIMATELY 85% OF EACH ITEM OF INCOME
WAS ASSIGNED TO THE POLICYHOLDERS AND WAS, AS THE ACT PROVIDES,
EXCLUDED FROM THE COMPANY'S TAXABLE INCOME.  THE REMAINDER OF EACH ITEM
IS CONSIDERED TO BE THE COMPANY'S SHARE OF INVESTMENT INCOME.  FROM THE
TOTAL AMOUNT ALLOCATED TO THE COMPANY THE ACT ALLOWS A DEDUCTION OF THE
COMPANY'S SHARE OF TAX-EXEMPT INTEREST (AND OF OTHER NONTAXED ITEMS) TO
ARRIVE AT TAXABLE INVESTMENT INCOME.  (FN7)  THE TAXABLE INVESTMENT
INCOME FOR THE PURPOSES OF ARRIVING AT THE PORTION OF GAIN FROM
OPERATIONS WHICH IS TO BE SUBJECTED TO TAX IS ARRIVED AT BY MUCH THE
SAME PROCESS AS ABOVE DESCRIBED. 


"(6)  EXCEPTION.  - IF IT IS ESTABLISHED IN ANY CASE THAT THE
APPLICATION OF THE DEFINITION OF TAXABLE INVESTMENT INCOME CONTAINED IN
PARAGRAPH (2) RESULTS IN THE IMPOSITION OF TAX ON: 

"(A)  ANY INTEREST WHICH UNDER SECTION 103 IS EXCLUDED FROM GROSS
INCOME: 

     *    *         *         *         * 

"ADJUSTMENT SHALL BE MADE TO THE EXTENT NECESSARY TO PREVENT SUCH
IMPOSITION." 

AN IDENTICAL EXCEPTION IS CONTAINED IN SEC. 809(B)(4) PROVIDING FOR
THE CALCULATION OF GAIN FROM OPERATION.  SECTION 103 OF THE CODE
PROVIDES FOR THE EXCLUSION FROM GROSS INCOME OF THE INTEREST EARNED ON
STATE AND MUNICIPAL BONDS. 

ACCORDING TO THE COMMISSIONER, THE COMPANY'S INCOME FROM INVESTMENTS
INCLUDES ONLY ITS PRO RATA SHARE OF TAX-EXEMPT INTEREST AND SINCE THIS
SHARE IS FULLY DEDUCTIBLE BY THE COMPANY, THE LAW IMPOSES NO TAX AT ALL
ON EXEMPT INTEREST.  ATLAS, HOWEVER, CLAIMS OTHERWISE:  THE COMPANY IS
ENTITLED TO DEDUCT FROM TOTAL INVESTMENT INCOME BOTH THE FULL AMOUNT OF
THE ANNUAL ADDITION TO RESERVES AND THE FULL AMOUNT OF EXEMPT INTEREST
RECEIVED; BY ASSIGNING PART OF EXEMPT INTEREST TO THE RESERVE ACCOUNT
RATHER THAN ASSIGNING ONLY TAXABLE INCOME, THE ACT NECESSARILY PLACES
MORE TAXABLE INCOME IN THE COMPANY'S SHARE OF INVESTMENT RETURN; THE
COMPANY THUS PAYS MORE TAX BECAUSE IT HAS RECEIVED TAX-EXEMPT INTEREST
OF WHICH A PORTION MUST BE ALLOCATED TO THE RESERVE ACCOUNT. 

CLAIMING THAT IT WAS ENTITLED TO THE ADJUSTMENTS PROVIDED FOR IN
SECS. 804(A)(6) AND 809(B)(4), THE COMPANY SUED FOR A REFUND IN THE
DISTRICT COURT.  THE COMPLAINT ALSO ALLEGED THE TREATMENT ACCORDED TAX
EXEMPT INTEREST WAS CONTRARY TO THE CONSTITUTION OF THE UNITED STATES
AND TO THE PRINCIPLES SET FORTH IN NATIONAL LIFE INS. CO. V. UNITED
STATES, 277 U.S. 508, AND MISSOURI INS. CO. V. GEHNER, 281 U.S. 313. 
THE DISTRICT COURT REJECTED THESE CLAIMS, 216 F. SUPP. 457 (D.C.N.D.
OKLA.), BUT THE COURT OF APPEALS REVERSED, 333 F.2D 389 (C.A. 10TH
CIR.).  THAT COURT CONSIDERED THE 1959 FORMULA TO IMPOSE A TAX ON TAX
EXEMPT INTEREST WITHIN THE MEANING OF THE NATIONAL LIFE AND GEHNER
CASES AND HENCE BY THE TERMS OF SECS. 804(A)(6) AND 809(B)(4) AN
ADJUSTMENT WAS REQUIRED.  WE GRANTED CERTIORARI TO CONSIDER THIS
IMPORTANT QUESTION RELATING TO THE TAXATION OF LIFE INSURANCE
COMPANIES.  379 U.S. 927. 

WE REVERSE, HOLDING THAT IN THE CIRCUMSTANCES OF THIS CASE THERE IS
NO STATUTORY OR CONSTITUTIONAL BARRIER TO THE APPLICATION OF THE
FORMULA PROVIDED IN SEC. 804 TO ARRIVE AT THE TAXABLE INVESTMENT INCOME
OF ATLAS AND HENCE THE EXCEPTIONS PROVIDED IN SECS. 804(A)(6) AND
809(B)(4) ARE NOT APPLICABLE. 

                                        II. 

UNDER THE 1959 ACT THE UNDIVIDED PART OF A LIFE INSURANCE COMPANY'S
ASSETS REPRESENTED BY ITS RESERVES IS CONSIDERED AS A FUND HELD FOR THE
BENEFIT OF THE POLICYHOLDERS.  THE REQUIRED ANNUAL ADDITION TO RESERVE
IS DRAWN FROM THE INCOME EARNED FROM INVESTMENTS OF THE COMMINGLED
ASSETS.  EACH ITEM OF INVESTMENT INCOME, INCLUDING TAX-EXEMPT INTEREST,
IS DIVIDED INTO A POLICYHOLDERS' SHARE AND A COMPANY'S SHARE.  THE
POLICYHOLDERS' SHARE IS ADDED TO THE RESERVE, IS EXCLUDED FOR TAX
PURPOSES FROM THE GROSS INCOME OF THE COMPANY AND IS NOT TAXED TO
EITHER THE COMPANY OR THE POLICYHOLDERS.  THE COMPANY'S SHARE OF
INVESTMENT INCOME IS THEN REDUCED BY ITS SHARE OF TAX-EXEMPT INTEREST
TO ARRIVE AT TAXABLE INVESTMENT INCOME.  IT IS APPARENT FROM THE FACE
OF THE ACT THAT THIS IS THE FORMULA WHICH CONGRESS INTENDED TO BE OF
GENERAL APPLICATION AND THAT CONGRESS DID NOT CONSIDER THE APPLICATION
OF THE FORMULA IN THE USUAL CASE TO LAY A TAX ON EXEMPT INTEREST, OR TO
HAVE ANY SUCH EFFECT, SO AS TO BRING THE EXCEPTION CLAUSES INTO
OPERATION.  OTHERWISE THE EXCEPTION WOULD BECOME THE RULE AND THE
GENERAL FORMULA OF LITTLE, IF ANY, UTILITY. 

THIS VIEW OF THE SECTION IS FULLY SUPPORTED BY ITS LEGISLATIVE
HISTORY.  AS H.R. 4245 CAME TO THE SENATE AFTER PASSAGE BY THE HOUSE,
IT PROVIDED FOR DEDUCTING THE ANNUAL ADDITION TO RESERVES, BUT TO
PREVENT A "DOUBLE DEDUCTION" REDUCED THE DEDUCTION BY A PORTION OF TAX
EXEMPT INTEREST.  (FN8)  THIS TREATMENT OF TAX-EXEMPT INTEREST WAS ONE
OF MANY SUBJECTS OF COMMENT IN THE EXTENSIVE HEARINGS WHICH FOLLOWED
BEFORE THE SENATE COMMITTEE ON FINANCE.  IT WAS REPEATEDLY AND STRONGLY
ARGUED BY MANY THAT LIFE INSURANCE COMPANIES WERE ENTITLED TO DEDUCT IN
FULL BOTH THE ANNUAL ADDITION TO RESERVES AND THE ENTIRE AMOUNT OF TAX
EXEMPT INTEREST, THAT THE PROVISIONS OF H.R. 4245 WITH REGARD TO TAX
EXEMPT INTEREST DISCRIMINATED AGAINST THE INSURANCE COMPANIES, THAT THE
CASES AND THAT THE FORMULA WOULD HAVE ADVERSE CONSEQUENCES ON THE
MUNICIPAL BOND MARKET.  (FN9)  OTHER WITNESSES, HOWEVER, INCLUDING
THOSE REPRESENTING THE TREASURY DEPARTMENT, SUPPORTED THE BILL AND
CONSIDERED IT TO ACCORD PROPER AND CONSTITUTIONALLY PERMISSIBLE
TREATMENT TO MUNICIPAL BOND INTEREST.  (FN10)  IT IS VERY DOUBTFUL THAT
THERE REMAINED AT THE CONCLUSION OF THE HEARINGS ANY UNEXPLORED FACTS
OR LEGAL ARGUMENTS CONCERNING THIS ASPECT OF THE BILL. 

THE SENATE COMMITTEE, WITH THE HEARINGS BEHIND IT, REPORTED OUT A
BILL WITH AMENDMENTS WHICH, AMONG OTHER THINGS, TOOK A DECIDEDLY
DIFFERENT APPROACH TO THE ASCERTAINMENT OF THE ANNUAL ADDITION TO
RESERVES AND TO THE HANDLING OF TAX-EXEMPT INTEREST.  THIS APPROACH WAS
ESSENTIALLY THAT WHICH IS CONTAINED IN THE STATUTE AS DESCRIBED ABOVE. 
(FN11) 

AS TIME AND AGAIN STATED IN THE COMMITTEE REPORT AND BY THOSE WHO
PRESENTED THE BILL ON THE FLOOR OF THE SENATE, THE PURPOSE OF THE
FORMULA PROVIDED BY THE SENATE WAS TO AVOID TAXING EXEMPT INTEREST. 
(FN12)  SENATOR BYRD, THE COMMITTEE CHAIRMAN, STATED THAT "IN PROVIDING
THE FORMULA I HAVE DESCRIBED TO THE SENATE IT WAS THE INTENTION OF THE
COMMITTEE NOT TO IMPOSE ANY TAX ON TAX-EXEMPT INTEREST."  105 CONG.
REC. 8401.  IT IS EXTREMELY DIFFICULT TO READ THE HEARINGS, THE
REPORTS, AND THE DEBATES WITHOUT CONCLUDING THAT IN THE OPINION OF
CONGRESS THE FORMULA IT PROVIDED, WITHOUT ADJUSTMENT UNDER SEC.
804(A)(6) OR SEC. 809(B)(4), DID NOT IMPOSE A TAX ON EXEMPT INTEREST IN
EITHER THE STATUTORY OR CONSTITUTIONAL SENSE. 

NONE OF THE MATERIALS CALLED TO OUR ATTENTION, HOWEVER, EXPLAIN WHY
OR FOR WHAT PURPOSE SECS. 804(A)(6) AND 809(B)(4) WERE ADDED TO THE
ACT, SAVE FOR MERE RECITATIONS IN THE REPORTS AND THE DEBATES THAT AN
ADJUSTMENT WOULD BE REQUIRED IN ANY CASE WHERE TAX-EXEMPT INTEREST WAS
SHOWN TO BE SUBJECTED TO TAX.  (FN13)  IT MAY BE THAT CONGRESS THOUGHT
THAT PECULIAR FACTS AND CIRCUMSTANCES IN PARTICULAR CASES WOULD REQUIRE
DIFFERENT TREATMENT THAN THE GENERAL FORMULA WOULD PROVIDE.  IF THIS
WAS THE CASE, NO EXAMPLES OR ILLUSTRATIONS OF THESE ABERRATIONAL
SITUATIONS WERE REFERRED TO OR EXPLAINED.  AND IF THIS WAS TO BE THE
SOLE FUNCTION OF SECS. 804(A)(6) AND 809(B)(4) THE COMMISSIONER IS
SURELY ENTITLED TO A JUDGMENT, FOR THERE IS NOTHING IN THIS RECORD
INDICATING THAT THIS CASE IS ANYTHING BUT THE TYPICAL ONE TO WHICH
CONGRESS INTENDED TO APPLY THE GENERAL FORMULA. 

ATLAS, HOWEVER, IN EFFECT VIEWS SECS. 804(A)(6) AND 809(B)(4) AS
BUILT-IN SAFETY VALVES TO BE TRIGGERED AND BECOME FULLY OPERATIONAL BY
A FINAL DETERMINATION IN A LAWSUIT, SUCH AS THIS ONE, THAT THE NEW
FORMULA, CONTRARY TO THE JUDGMENT OF CONGRESS, DOES INDEED PLACE A TAX
ON EXEMPT INTEREST WITHIN THE MEANING OF THE RELEVANT CASES HERETOFORE
DECIDED BY THIS COURT.  THIS IS NOT AN UNREASONABLE VIEW OF THE
PURPOSES WHICH CONGRESS MAY HAVE HAD IN WRITING THE EXCEPTION
PROVISIONS INTO THE ACT, BUT WE CANNOT AGREE WITH ATLAS OR THE COURT OF
APPEALS THAT NATIONAL LIFE, 277 U.S. 508, AND GEHNER, 281 U.S. 313,
PROVIDE THE NECESSARY TRIGGERING TO BRING THESE CLAUSES INTO PLAY. 

                     III. 

IN NATIONAL LIFE, THE COURT STRUCK DOWN A PROVISION OF THE FEDERAL
INCOME TAX LAW WHICH PERMITTED INSURANCE COMPANIES TO EXCLUDE MUNICIPAL
BOND INTEREST FROM THEIR GROSS INCOME AND AT THE SAME TIME REDUCE THE
RESERVE DEDUCTION OTHERWISE AVAILABLE TO THE COMPANY BY THE FULL AMOUNT
OF THE EXEMPT INTEREST WHICH WAS EXCLUDED FROM GROSS INCOME, THE RESULT
BEING THAT THE COMPANY PAID AS MUCH TAX AS IT WOULD HAVE PAID HAD THE
SAME TOTAL INCOME BEEN ENTIRELY FROM TAXABLE SOURCES.  UNDER THAT
PROVISION, A COMPANY SHIFTING ITS INVESTMENTS FROM TAXABLE TO
NONTAXABLE SECURITIES WOULD HAVE LOWERED NEITHER ITS TAXABLE INCOME NOR
ITS TOTAL TAX.  AS COMPARED WITH THE COMPANY DERIVING ITS INCOME ONLY
FROM TAXABLE SOURCES, THE ENTERPRISE WITH THE SAME TOTAL AMOUNT OF
INVESTMENT INCOME DERIVED PARTLY FROM EXEMPT AND PARTLY FROM TAXABLE
SOURCES WOULD PAY MORE TAX PER DOLLAR OF TAXABLE GROSS INCOME, I.E.,
TAXABLE INCOME BEFORE DEDUCTION FOR THE RESERVE.  UNABLE TO PERCEIVE
ANY PURPOSE IN REDUCING ONE DEDUCTION BY THE FULL AMOUNT OF ANOTHER,
SAVE FOR AN INTENT TO IMPOSE A TAX ON EXEMPT RECEIPTS, THE COURT RULED
THAT "ONE MAY NOT BE SUBJECTED TO GREATER BURDENS UPON HIS TAXABLE
PROPERTY SOLELY BECAUSE HE OWNS SOME THAT IS FREE."  277 U.S., AT 519. 

IT IS OBVIOUS THAT THIS IS NOT THE CASE UNDER THE 1959 ACT.  HERE, A
COMPANY RECEIVING INCOME FROM BOTH EXEMPT AND NONEXEMPT SECURITIES PAYS
NOT THE SAME, BUT LESS, TAX THAN THE COMPANY WITH AN IDENTICAL AMOUNT
OF GROSS INCOME DERIVED FROM ONLY TAXABLE SOURCES.  AS THE TAXPAYER
DISPLACES TAXABLE INCOME WITH EXEMPT INCOME, THE SIZE OF THE TAX BASE,
AND THE TAX, ARE REDUCED.  THE TAX BURDEN PER TAXABLE DOLLAR OF TAXABLE
GROSS INCOME DOES NOT INCREASE, BUT REMAINS THE SAME.  (FN14) 

BUT ATLAS URGES THAT THE RULE OF NATIONAL LIFE, WHEN READ IN
CONJUNCTION WITH MISSOURI INS. CO. V. GEHNER, 281 U.S. 313, MEANS THAT
A TAX IS IMPOSED ON TAX-EXEMPT INTEREST WHENEVER THE LIABILITY OF THE
TAXPAYER RECEIVING SUCH INTEREST IS GREATER THAN IT WOULD HAVE BEEN IF
THE TAX-EXEMPT INTEREST HAD NOT BEEN RECEIVED.  IN THE GEHNER CASE A
STATE AD VALOREM PROPERTY TAX WAS IMPOSED ON THE NET PERSONAL PROPERTY
OF AN INSURANCE COMPANY.  EXEMPT GOVERNMENT BONDS WERE EXCLUDED FROM
THE TAX BASE BUT ONLY 84% - THE RATIO OF TAXABLE ASSETS TO TOTAL ASSETS
- OF THE LEGALLY REQUIRED RESERVES WAS ALLOWED AS A DEDUCTION.  THE
COURT CONSIDERED NATIONAL LIFE TO HOLD THAT "A STATE MAY NOT SUBJECT
ONE TO A GREATER BURDEN UPON HIS TAXABLE PROPERTY MERELY BECAUSE HE
OWNS TAX-EXEMPT GOVERNMENT SECURITIES."  281 U.S., AT 321.  THIS
PARAPHRASE OF THE NATIONAL LIFE HOLDING WAS CORRECT AND STATES THE
PRINCIPLE FOR WHICH BOTH OF THESE CASES HAVE BEEN CITED.  (FN15)  BUT
IT IS OBVIOUS THAT THE TAX IN GEHNER DID NOT INFRINGE THIS RULE. 
REDUCING THE RESERVE DEDUCTION BY THE RATIO OF TAXABLE ASSETS TO TOTAL
ASSETS DID NOT RESULT IN AN INCREASED TAX BURDEN ON TAXABLE PROPERTY. 
THE COURT, NEVERTHELESS, INVALIDATED THE TAX BECAUSE "THE OWNERSHIP OF
UNITED STATES BONDS IS MADE THE BASIS OF DENYING THE FULL EXEMPTION
WHICH IS ACCORDED TO THOSE WHO OWN NO SUCH BONDS."  281 U.S., AT 321
322.   THE COMPANY WAS APPARENTLY TO HAVE THE FULL BENEFIT OF BOTH THE
EXCLUSION OF THE GOVERNMENT BONDS AND THE DEDUCTION FOR THE FULL AMOUNT
OF POLICYHOLDER RESERVES.  OTHERWISE, THE LAW WOULD NOT DISREGARD THE
OWNERSHIP OF THE BONDS IN EXACTING THE TAX.  THE GEHNER CASE DOES,
THEREFORE, CONDEMN MORE THAN AN INCREASE IN THE TAX RATE ON TAXABLE
DOLLARS FOR THOSE OWNING EXEMPT SECURITIES. 

THIS EXTENSION OF NATIONAL LIFE WAS SOON REPUDIATED.  (FN16)  IN
DENMAN V. SLAYTON, 282 U.S. 514, DECIDED BUT ONE TERM AFTER GEHNER, THE
COURT UNANIMOUSLY UPHELD SEC. 214(A)(2) OF THE REVENUE ACT OF 1921,
WHICH PERMITTED THE DEDUCTION OF INTEREST GENERALLY EXCEPT INTEREST ON
INDEBTEDNESS INCURRED OR CONTINUED TO PURCHASE OR CARRY TAX-EXEMPT
SECURITIES, AS APPLIED TO A DEALER IN SECURITIES WHOSE DISALLOWED
INTEREST INCURRED TO CARRY EXEMPT BONDS EXCEEDED THE RETURN FROM THE
BONDS.  ALTHOUGH THE PARTIES ARGUED BOTH GEHNER AND NATIONAL LIFE, THE
COURT DID NOT MENTION GEHNER AND SAID NATIONAL LIFE WAS RADICALLY
DIFFERENT, SINCE THE DEALER "WAS NOT IN EFFECT REQUIRED TO PAY MORE
UPON HIS TAXABLE RECEIPTS THAN WAS DEMANDED OF OTHERS WHO ENJOYED LIKE
INCOMES SOLELY BECAUSE HE WAS THE RECIPIENT OF INTEREST FROM TAX-FREE
SECURITIES."  282 U.S., AT 519.  BUT HE WAS, LIKE THE TAXPAYER IN
GEHNER, REQUIRED TO PAY A GREATER TAX THAN WOULD BE THE CASE IF THE
EXEMPT SECURITIES WERE IGNORED ENTIRELY; ABSENT OWNERSHIP OF THE EXEMPT
BONDS, THE DISALLOWED INTEREST WOULD HAVE BEEN DEDUCTIBLE FROM TAXABLE
INCOME.  OWNERSHIP OF EXEMPT BONDS WAS INDEED THE "BASIS OF DENYING THE
FULL EXEMPTION WHICH IS ACCORDED TO THOSE WHO OWN NO SUCH BONDS." 
GEHNER, 281 U.S., AT 321-322.  THUS THE COURT NOT ONLY REFUSED TO
FOLLOW THE IMPLICATIONS OF GEHNER IN THE CONTEXT OF THE FEDERAL INCOME
TAX, BUT ALSO SUSTAINED THE PROPRIETY OF DISALLOWING AN EXPENSE
ATTRIBUTABLE TO THE PRODUCTION OF NONTAXABLE INCOME.  SUCH DISALLOWANCE
WAS NOT TO IMPOSE AN IMPERMISSIBLE BURDEN ON THE EXEMPT RECEIPTS. 
"WHILE GUARANTEED EXEMPTIONS MUST BE STRICTLY OBSERVED, THIS OBLIGATION
IS NOT INCONSISTENT WITH REASONABLE CLASSIFICATION DESIGNED TO SUBJECT
ALL TO THE PAYMENT OF THEIR JUST SHARE OF A BURDEN FAIRLY IMPOSED." 
282 U.S., AT 519. 

THE COURT FOLLOWED DENMAN, AND AGAIN DISTINGUISHED NATIONAL LIFE,
WITHOUT MENTIONING GEHNER, IN HELVERING V. INDEPENDENT LIFE INS. CO.,
292 U.S. 371, WHERE THE REVENUE ACTS OF 1921 AND 1924 PERMITTED
DEDUCTION OF DEPRECIATION AND EXPENSES OF BUILDINGS OWNED BY LIFE
INSURANCE COMPANIES ONLY IF THE COMPANY INCLUDED IN ITS GROSS INCOME
THE RENTAL VALUE OF SPACE IT OCCUPIED.  THE COURT ASSUMED THAT THE
RENTAL VALUE WAS NOT INCOME, AND COULD NOT CONSTITUTIONALLY BE TAXED,
BUT UPHELD THE MEASURE AS A VALID APPORTIONMENT OF EXPENSES
ATTRIBUTABLE TO THE SPACE OCCUPIED BY THE COMPANY AND THE SPACE FOR
WHICH RENTS ARE RECEIVED.  DENMAN V. SLAYTON WAS SAID TO MAKE CLEAR THE
DISTINCTION BETWEEN A PERMISSIBLE EXCLUSION FROM DEDUCTIONS OF THE
AMOUNT ATTRIBUTABLE TO EXEMPT INCOME AND A TAX ON EXEMPT PROPERTY. 
THIS APPORTIONMENT FELL WITHIN THE FORMER AND DID NOT LAY A TAX ON THE
RENTAL VALUE OF THE OWNER'S USE OF HIS BUILDING. 

                                            IV. 

WE AFFIRM THE PRINCIPLE ANNOUNCED IN DENMAN AND INDEPENDENT LIFE THAT
THE TAX LAWS MAY REQUIRE TAX-EXEMPT INCOME TO PAY ITS WAY.  IN OUR
VIEW, CONGRESS HAS DONE NO MORE IN THE 1959 ACT THAN TO PARTICULARIZE
THIS PRINCIPLE IN CONNECTION WITH TAXING THE INCOME OF LIFE INSURANCE
COMPANIES. 

AN INSURANCE COMPANY OBTAINS MOST OF ITS FUNDS FROM PREMIUMS PAID TO
IT BY POLICYHOLDERS IN EXCHANGE FOR THE COMPANY'S PROMISE TO PAY FUTURE
DEATH CLAIMS AND OTHER BENEFITS.  THE COMPANY IS ALSO OBLIGATED TO
MAINTAIN RESERVES, WHICH, IF THEY ARE TO BE ADEQUATE TO PAY FUTURE
CLAIMS, MUST GROW AT A SUFFICIENT RATE EACH YEAR.  THE RECEIPT OF
PREMIUMS NECESSARILY ENTAILS THE CREATION OF RESERVES AND ADDITIONS TO
RESERVES FROM INVESTMENT INCOME.  THUS THE INSURANCE COMPANY IS NOT
ONLY PERMITTED TO INVEST, BUT IT MUST INVEST: AND IT MUST RETURN TO THE
RESERVE A LARGE PORTION OF ITS INVESTMENT INCOME.  AS NO INSURANCE
COMPANY WOULD DENY, THERE IS SUFFICIENT ECONOMIC AND LEGAL SUBSTANCE TO
THE COMPANY'S OBLIGATION TO RETURN A LARGE PORTION OF INVESTMENT INCOME
TO POLICYHOLDER RESERVES TO WARRANT OR REQUIRE THE EXCLUSION OF
INVESTMENT INCOME SO EMPLOYED FROM THE TAXABLE INCOME OF THE COMPANY. 
AND WE THINK THE POLICYHOLDERS' CLAIM AGAINST INVESTMENT INCOME IS
SUFFICIENTLY DIRECT AND IMMEDIATE TO JUSTIFY THE CONGRESS IN TREATING A
MAJOR PART OF INVESTMENT INCOME NOT AS INCOME TO THE COMPANY BUT AS
INCOME TO THE POLICYHOLDERS.  WHETHER VIEWED AS INCOME TO THE
POLICYHOLDERS, OR, AS ATLAS WOULD HAVE IT, AS THE PRINCIPAL COST OF
CARRYING ON THE BUSINESS WHICH PRODUCES THE COMPANY'S NET INVESTMENT
INCOME, (FN17) A LARGE PORTION OF TOTAL INVESTMENT INCOME IS CREDITED
TO THE RESERVE AND ELIMINATED FROM TAXABLE INVESTMENT INCOME. 

UNDER THE 1959 ACT THIS PORTION IS ARRIVED AT BY SUBJECTING EACH
DOLLAR OF INVESTMENT INCOME, WHATEVER ITS SOURCE, TO A PRO RATA SHARE
OF THE OBLIGATION OWED BY THE COMPANY TO THE POLICYHOLDERS, FROM WHOM
THE INVESTED FUNDS ARE CHIEFLY OBTAINED.  IN OUR VIEW, THERE IS NOTHING
INHERENTLY ABITRARY OR IRRATIONAL IN SUCH A FORMULA FOR SETTING ASIDE
THAT SHARE OF INVESTMENT INCOME WHICH MUST BE COMMITTED TO THE
RESERVES.  UNDOUBTEDLY POLICYHOLDERS HAVE NOT CONTRACTED TO HAVE
ASSIGNED TO THEM EITHER TAXABLE OR EXEMPT DOLLARS.  THEIR CLAIM CAN BE
FULLY SATISFIED WITH EITHER, BUT IT RUNS AGAINST ALL INVESTMENT INCOME,
WHATEVER ITS SOURCE.  WE SEE NO SOUND REASON, LEGAL OR ECONOMIC, FOR
DISTINGUISHING BETWEEN THE TAXABLE AND NONTAXABLE DOLLAR OR FOR SAYING
THAT THE RESERVE MUST BE SATISFIED BY RESORT TO TAXABLE INCOME ALONE. 
INTEREST ON MUNICIPAL BONDS MAY BE EXEMPT FROM TAX, BUT THIS DOES NOT
CARRY WITH IT EXEMPTION FROM THE COMPANY'S OBLIGATION TO ADD A LARGE
PORTION OF INVESTMENT INCOME TO POLICYHOLDER RESERVE.  (FN18) 

TAX EXEMPTION CANNOT CHANGE THE SUBSTANCE OF THIS UNDERTAKING.  AND
THE STATUTORY FORMULA ALLOCATING SO MUCH OF EACH DOLLAR OF INVESTMENT
INCOME AS THE RESERVE INCREMENT BEARS TO TOTAL INVESTMENT INCOME IS
QUITE CLEARLY CONSISTENT WITH IT.  FOR THE FORMULA TREATS TAXABLE AND
EXEMPT INCOME IN THE SAME WAY, DEEMING THAT BOTH ARE SADDLED WITH AN
EQUAL SHARE OF THE COMPANY'S OBLIGATION TO POLICYHOLDERS.  WE THINK
THAT CONGRESS CAN TREAT THE RECEIPTS FROM INVESTMENT OF A POOL OF
FUNGIBLE ASSETS IN THIS MANNER AND THAT THE TAXPAYER'S DESIRED
ALLOCATION OF THESE RECEIPTS IS NOT CONSTITUTIONALLY REQUIRED. 

IT IS SAID, HOWEVER, THAT A COMPANY INVESTING "IDLE" ASSETS IN
MUNICIPAL BONDS AND THEREBY ADDING EXEMPT INTEREST TO ITS INCOME WILL
PAY MORE TAX, AND AT A HIGHER RATE PER DOLLAR OF TAXABLE INCOME, THAN
IF IT HAD NOT MADE THE ADDITIONAL INVESTMENT AT ALL.  LIKEWISE, IT IS
CLAIMED, TWO COMPANIES HAVING THE SAME AMOUNT OF INVESTMENT IN TAXABLE
SECURITIES AND THE SAME AMOUNT OF COMMITMENTS TO POLICYHOLDERS, BUT ONE
HAVING SOME MUNICIPAL SECURITIES IN ADDITION, WILL HAVE A DIFFERENT TAX
BILL, THE LATTER PAYING MORE TAX AND AT A HIGHER RATE BECAUSE OF THE
OWNERSHIP OF THE BONDS.  BUT INSURANCE COMPANIES ACCUMULATE FUNDS TO
INVEST AND THEY MUST, AND DO, INVEST.  THEIR CHOICE IS NOT BETWEEN
INVESTING AND NOT INVESTING AT ALL BUT BETWEEN INVESTING IN ONE KIND OF
SECURITIES OR ANOTHER.  UNDER THE 1959 FORMULA INVESTING IN EXEMPT
SECURITIES RESULTS IN A LOWER TOTAL TAX THAN INVESTING IN TAXABLE
SECURITIES AND THE TAX RATE PER TAXABLE DOLLAR DOES NOT INCREASE.  IT
IS LIKEWISE UNREALISTIC TO COMPARE THE TAX BURDENS OF TWO COMPANIES,
EACH WITH THE SAME AMOUNT OF TAXABLE INCOME BUT ONE WITH EXEMPT INCOME
IN ADDITION, AND TO ASSUME IN THE COMPARISON THAT EACH HAS THE SAME
OBLIGATION TO AUGMENT RESERVES.  THE LIKELIHOOD IS THAT IF THE ONE
COMPANY HAS ADDITIONAL EXEMPT INCOME WHICH THE OTHER DOES NOT HAVE, IT
ALSO HAS MORE ASSETS, LARGER RESERVES AND A GREATER RESERVE CLAIM
AGAINST INVESTMENT INCOME, WHICH WILL REDUCE TAXABLE INCOME AND
SUBSTANTIALLY OFFSET THE ALLEGED DISPARITY IN TAX BURDEN BETWEEN THE
TWO COMPANIES. 

UNDOUBTEDLY THE 1959 ACT DOES NOT WHOLLY IGNORE THE RECEIPT OF TAX
EXEMPT INTEREST IN ARRIVING AT TAXABLE INVESTMENT INCOME.  THE FORMULA
DOES PRE-EMPT A SHARE OF TAX-EXEMPT INTEREST FOR POLICYHOLDERS AND THE
COMPANY WILL PAY MORE THAN IT WOULD IF IT HAD THE FULL BENEFIT OF THE
EXCLUSION FOR RESERVE ADDITIONS AND AT THE SAME TIME COULD REDUCE
TAXABLE INCOME BY THE FULL AMOUNT OF EXEMPT INTEREST.  BUT THIS RESULT
NECESSARILY FOLLOWS FROM THE APPLICATION OF THE PRINCIPLE OF CHARGING
EXEMPT INCOME WITH A FAIR SHARE OF THE BURDENS PROPERLY ALLOCABLE TO
IT.  IN THE LAST ANALYSIS ATLAS' INSISTENCE ON BOTH THE FULL RESERVE
AND EXEMPT-INCOME EXCLUSIONS IS TANTAMOUNT TO SAYING THAT THOSE WHO
PURCHASE EXEMPT SECURITIES INSTEAD OF TAXABLE ONES ARE CONSTITUTIONALLY
ENTITLED TO REDUCE THEIR TAX LAIBILITY AND TO PAY LESS TAX PER TAXABLE
DOLLAR THAN THOSE OWNING NO SUCH SECURITIES.  THE DOCTRINE OF
INTERGOVERNMENTAL IMMUNITY DOES NOT REQUIRE SUCH A BENEFIT TO BE
CONFERRED ON THE OWNERSHIP OF MUNICIPAL BONDS.  CONGRESS WAS ENTITLED
TO ALLOCATE INVESTMENT INCOME TO POLICYHOLDERS AS IT DID.  THE FORMULA
"WAS DESIGNED TO SUBJECT ALL TO THE PAYMENT OF THEIR JUST SHARE OF A
BURDEN FAIRLY IMPOSED," DENMAN, SUPRA, AT 519, AND AS APPLIED TO THIS
CASE DID NOT IMPOSE A TAX ON INCOME EXCLUDABLE UNDER SEC. 103 OF THE
INTERNAL REVENUE CODE.  REVERSED. 

FN1  73 STAT. 112, INT. REV. CODE SECS. 801-820. 

FN2  THE ACT PROVIDES A THREE-PHASE PROCEDURE FOR TAXATION OF LIFE
INSURANCE COMPANIES.  UNDER PHASE ONE THE TAX BASE REPRESENTS THE LIFE
INSURANCE COMPANY'S SHARE OF INCOME FROM INTEREST, DIVIDENDS, RENTS,
ROYALTIES, AND OTHER INVESTMENT SOURCES LESS INVESTMENT EXPENSES AND
DEDUCTION OF THE COMPANY'S SHARE OF EXEMPT INTEREST AND OTHER ITEMS. 
SEC. 804.  UNDER PHASE TWO THE TAX BASE REPRESENTS 50% OF THE EXCESS OF
TOTAL NET INCOME FROM ALL SOURCES - "GAIN FROM OPERATIONS" - OVER
TAXABLE INVESTMENT INCOME.  THIS EXCESS, REFERRED TO AS UNDERWRITING
GAIN, CONSISTS OF MORTALITY AND LOADING SAVINGS, I.E., SAVINGS
RESULTING FROM FEWER DEATHS PER AGE GROUP THAN WERE ASSUMED IN
ESTABLISHING PREMIUMS AND RESERVES AND ANY REDUCED EXPENSES IN
SERVICING POLICIES.  SEC. 809.  IT ALSO MAY INCLUDE A PORTION OF
INVESTMENT INCOME WHICH IS NOT TAXED UNDER PHASE ONE, SINCE IN
CALCULATING THE AMOUNT OF INVESTMENT INCOME TO BE ALLOCATED TO
POLICYHOLDERS UNDER PHASE TWO, THE RESERVES ARE MULTIPLIED BY THE
COMPANY'S REQUIRED INTEREST RATE RATHER THAN THE COMPANY'S AVERAGE OR
CURRENT EARNINGS RATE USED IN PHASE ONE.  SEC. 809(A).  THIS DIFFERENCE
IS MINIMIZED BY OTHER ADJUSTMENTS TO THE RESERVE UNDER PHASE ONE
WHENEVER THE APPLICABLE EARNINGS RATE EXCEEDS OR IS LESS THAN THE
ASSUMED RATE.  SEE NOTE 4, INFRA.  IF THERE IS UNDERWRITING LOSS UNDER
PHASE TWO, THE ENTIRE LOSS IS DEDUCTED FROM THE TAXABLE INVESTMENT
INCOME AS COMPUTED UNDER PHASE ONE.  IF THERE IS GAIN, HALF OF THIS
GAIN IS ADDED TO THE PHASE ONE TAX BASE. 

PHASE THREE IMPOSES A TAX ON CERTAIN UNDERWRITING GAINS MADE
AVAILABLE TO SHAREHOLDERS WHICH ARE NOT TAXED UNDER PHASE TWO.  SEC.
815. 

FN3  INT. REV. CODE SEC. 801(B)(1). 

LIFE INSURANCE RESERVES MAY BE DEFINED SIMPLY AS THAT FUND WHICH,
TOGETHER WITH FUTURE PREMIUMS AND INTEREST WILL BE SUFFICIENT TO PAY
FUTURE CLAIMS.  UNDER THE STATUTE SUCH RESERVES ARE DEFINED AS AMOUNTS
COMPUTED OR ESTIMATED ON THE BASIS OF RECOGNIZED MORTALITY TABLES AND
ASSUMED RATES OF INTEREST, SET ASIDE TO MATURE OR LIQUIDATE FUTURE
CLAIMS ARISING FROM LIFE, ANNUITY, AND NONCANCELLABLE HEALTH AND
ACCIDENT INSURANCE POLICIES, AND REQUIRED BY LAW, WITH SOME EXCEPTIONS
NOT PERTINENT HERE. 

FN4  INT. REV. CODE SEC. 805. 

THIS AMOUNT IS CALLED THE "POLICY AND OTHER CONTRACT LIABILITY
REQUIREMENTS" AND IS DETERMINED BY A SERIES OF CALCULATIONS.  THE
COMPANY'S "ADJUSTED LIFE INSURANCE RESERVES" ARE MULTIPLIED BY THE
CURRENT EARNINGS RATE OR THE AVERAGE EARNINGS RATE FOR THE CURRENT AND
FOUR PRECEDING YEARS, WHICHEVER IS LOWER.  "ADJUSTED LIFE INSURANCE
RESERVES" ARE THE LIFE INSURANCE RESERVES REQUIRED BY LAW ADJUSTED FOR
THE DIFFERENCE BETWEEN THE ASSUMED INTEREST RATE USED BY THE COMPANY IN
COMPUTING SUCH RESERVES AND THE ACTUAL EARNINGS RATE.  THE RESERVE IS
REDUCED BY 10% FOR EVERY 1% BY WHICH THE APPLICABLE EARNINGS RATE
EXCEEDS THE COMPANY'S ASSUMED INTEREST RATE.  TO THE AMOUNT SO
CALCULATED ARE ADDED PENSION PLAN RESERVES MULTIPLIED BY THE CURRENT
EARNINGS RATE AND INTEREST PAID DURING THE TAXABLE YEAR. 

FN5  INT. REV. CODE SEC. 804(A)(1): 

"EXCLUSION OF POLICYHOLDERS' SHARE OF INVESTMENT YIELD.  - THE
POLICYHOLDERS' SHARE OF EACH AND EVERY ITEM OF INVESTMENT YIELD
(INCLUDING TAX-EXEMPT INTEREST, PARTIALLY TAX-EXEMPT INTEREST, AND
DIVIDENDS RECEIVED) OF ANY LIFE INSURANCE COMPANY SHALL NOT BE INCLUDED
IN TAXABLE INVESTMENT INCOME.  FOR PURPOSES OF THE PRECEDING SENTENCE,
THE POLICYHOLDERS' SHARE OF ANY ITEM SHALL BE THAT PERCENTAGE OBTAINED
BY DIVIDING THE POLICY AND OTHER CONTRACT LIABILITY REQUIREMENTS BY THE
INVESTMENT YIELD; EXCEPT THAT IF THE POLICY AND OTHER CONTRACT
LIABILITY REQUIREMENTS EXCEED THE INVESTMENT YIELD, THEN THE
POLICYHOLDERS' SHARE OF ANY ITEM SHALL BE 100 PERCENT." 

FN6  INVESTMENT YIELD IS GROSS INVESTMENT INCOME LESS SPECIFIED
DEDUCTIONS, INCLUDING INVESTMENT EXPENSES, REAL ESTATE EXPENSES,
DEPRECIATION, DEPLETION AND TRADE AND BUSINESS EXPENSES, SUBJECT TO
CERTAIN EXCEPTIONS AND LIMITATIONS.  INT. REV. CODE SECS.  804(B),(C). 
FN7  INCLUDED IN THE INVESTMENT YIELD WHICH IS DIVIDED BETWEEN THE
POLICYHOLDERS AND COMPANY, IN ADDITION TO INTEREST ON STATE AND
MUNICIPAL BONDS, ARE PARTIALLY NONTAXED INTEREST ON FEDERAL BONDS AND
INTRACORPORATE DIVIDENDS.  SECTION 804(A)(2) PERMITS DEDUCTION OF THE
COMPANY'S NONTAXED SHARE OF THESE ITEMS ALONG WITH INTEREST ON EXEMPT
BONDS. 

FN8  H.R. REP. NO. 34, 86TH CONG., 1ST SESS., 28-29, 31. 

FN9  SEE HEARINGS ON H.R. 4245 BEFORE THE SENATE COMMITTEE ON
FINANCE, 86TH CONG., 1ST SESS., 45-46, 48, 121, 187, 248-266, 304-318,
404-409, 516-518, 613-614, 694-699, 700-702.    FN10  ID., AT 19-60,
646-654. 

FN11  S. REP. NO. 291, 86TH CONG., 1ST SESS., 6. 

FN12  AS STATED IN THE SENATE REPORT ON H.R. 4245, THE COMMITTEE ON
FINANCE WAS OF THE OPINION THAT THE FORMULA PROVIDED IN SEC. 804 DID
NOT IMPOSE A TAX ON TAX-EXEMPT INTEREST - "THE PURPOSE OF YOUR
COMMITTEE IN PROVIDING THIS TREATMENT IS TO EXEMPT A LIFE INSURANCE
COMPANY FROM TAX ON ANY TAX-EXEMPT INTEREST  ...  ."  S. REP. NO. 291,
86TH CONG., 1ST SESS., 17.  SEE ALSO PP. 6, 18, 46. 

SENATOR BYRD IN EXPLAINING THE BILL TO THE SENATE PRESENTED A LETTER
FROM THE DEPARTMENT OF THE TREASURY WHICH SAID THAT THE FORMULA
PROVIDED BY THE BILL DID NOT PLACE A TAX ON EXEMPT INTEREST, THAT THE
ADDITIONAL LANGUAGE OF SEC. 804(A)(6) ESTABLISHING AN EXCEPTION WAS NOT
AT ALL NECESSARY BUT THAT JUST TO MAKE SURE IT HAD BEEN PROVIDED THAT
IN ANY CASE THE FORMULA RESULTED IN TAXING INTEREST EXCLUDABLE UNDER
SEC. 103, AN ADJUSTMENT WOULD BE MADE.  105 CONG. REC. 8402.  THE MORE
DETAILED EXPLANATION OF THE BILL BY SENATOR BYRD WAS TO THE SAME
EFFECT.  105 CONG. REC. 8404.  SENATOR CURTIS, A MEMBER OF THE SENATE
COMMITTEE, DELIVERED A COMPREHENSIVE SPEECH IN SUPPORT OF THE BILL IN
THE COURSE OF WHICH HE SAID THAT HIS EARLIER CONCERN ABOUT
INADVERTENTLY TAXING EXEMPT INTEREST HAD BEEN FULLY MET BY THE BILL. 
AFTER REVIEWING THE FORMULA, WITH EXAMPLES ILLUSTRATING ITS OPERATION
AND WITHOUT MENTIONING THE EXCEPTION OF SEC.  804(A)(6) HE REMARKED
THAT "NO TAX-EXEMPT INCOME OR CREDITS OF LIFE INSURANCE COMPANIES WILL
BE INCLUDED IN THE TAX BASE OF SUCH COMPANIES, UNDER THIS BILL.  THIS
SHOULD ALLAY ANY FEAR THAT ANY CONSTITUTIONAL PROVISION IS
TRANSGRESSED."  105 CONG. REC. 8429.  THE BILL PASSED IN THE SENATE,
105 CONG. REC. 8438, AND THE CONFERENCE REPORT, WHICH MAY BE SAID TO
HAVE ADOPTED THE SENATE APPROACH TO THE PROBLEM INVOLVED IN THIS CASE,
H.R. REP. NO. 520, 86TH CONG., 1ST SESS., 4, 14-15, 105 CONG. REC.
10412, WAS ADOPTED BY BOTH HOUSES. 

FN13  SEE S. REP. NO. 291, 86TH CONG., 1ST SESS., 17, 24; H.R. REP.
NO. 520, 86TH CONG., 1ST SESS., 15; 105 CONG. REC. 8401, 10400, 10412
10414.  REPRESENTATIVE MILLS, CHAIRMAN OF THE HOUSE WAYS AND MEANS
COMMITTEE, STATED: 

"AS AGREED TO BY THE CONFEREES, THE FINAL VERSION OF H.R. 4245
EXTENSIVELY REWRITES THE PROVISIONS OF THE HOUSE BILL DEALING WITH TAX
EXEMPT INTEREST AND DIVIDENDS RECEIVED, INCLUDING THE ADDITION OF A
PROVISO TO THE EFFECT THAT IF IN ANY PARTICULAR CASE THE FORMULA UNDER
THE BILL DOES NOT PROVIDE THE PROPER TREATMENT OF THESE ITEMS,
APPROPRIATE ADJUSTMENT WILL BE MADE.  IT IS MY BELIEF THAT THE
APPROPRIATE DEDUCTION WAS ALLOWED BY THE HOUSE BILL AND THAT THESE
PROVISIONS OF THE FINAL BILL, WHICH CLOSELY FOLLOW THE SENATE
AMENDMENT, MAKE NO CHANGE OF SUBSTANCE."  105 CONG. REC. 10412. 

FN14  WHERE INCOME FROM TAXABLE SOURCES IS DISPLACED BY THE SAME
AMOUNT OF INCOME FROM EXEMPT BONDS, THE TOTAL INVESTMENT YIELD AND THE
RESERVE EXCLUSION REMAIN THE SAME.  THUS THE PROPORTION OF EACH ITEM OF
INCOME ALLOCATED TO THE POLICYHOLDERS' SHARE AND THE COMPANY'S SHARE
ALSO REMAINS THE SAME.  SINCE THE AMOUNT OF EXEMPT INCOME ALLOCATED TO
THE COMPANY IS LARGER AND THAT SHARE IS FULLY DEDUCTIBLE, THE TAX BASE
IS CORRESPONDINGLY SMALLER. 

THE RESULT IS A DECREASE IN THE TAX COMMENSURATE WITH THE EXTENT TO
WHICH THE COMPANY'S TAXABLE INCOME IS TAXED.  WITH A FULLY TAXABLE
INVESTMENT YIELD OF $1,000,000 AND A POLICYHOLDERS' SHARE OF $800,000,
20% OF THE INVESTMENT YIELD WOULD BE INCLUDED IN GAIN FROM OPERATIONS. 
GAIN FROM OPERATIONS WOULD BE REDUCED BY 20% OF ANY PART OF THE
INVESTMENT YIELD THAT WAS SHIFTED FROM TAXABLE INCOME TO TAX-EXEMPT
INCOME. 

FN15  SEE, E.G., DENMAN V. SLAYTON, 282 U.S. 514, 519; HELVERING V.
INDEPENDENT LIFE INS. CO., 292 U.S. 371, 381; SCHUYLKILL TRUST CO. V.
PENNSYLVANIA, 296 U.S. 113, 119; NEW JERSEY REALTY TITLE INS. CO. V.
DIVISION OF TAX APPEALS, 338 U.S. 665, 674-675, 677. 

FN16  THIS IS TRUE INSOFAR AS GEHNER RESTED ON A DOCTRINE OF IMPLIED
CONSTITUTIONAL IMMUNITY.  THE TAX THERE WAS A STATE AD VALOREM PROPERTY
TAX SAID TO BE ON FEDERAL BONDS AND THEN, AS NOW, A FEDERAL STATUTE
INSULATED SUCH BONDS FROM STATE TAXATION.  SEE 73 STAT. 622, SEC.
105(A), 31 U.S.C. SEC. 742 (1958 ED., SUPP. V). 

FN17  THE STATEMENT OF STANFORD ROTHSCHILD, A REPRESENTATIVE OF ONE
OF THE LIFE INSURANCE COMPANIES OBJECTING TO THE PROPOSED PRO RATA
DISALLOWANCE OF THE RESERVE DEDUCTION IN H.R. 4245, BEFORE THE SENATE
COMMITTEE PROVIDES A CLEAR EXPOSITION OF THIS VIEW: 

"LIFE INSURANCE COMPANIES HAVE TWO KINDS OF GROSS INVESTMENT INCOME:
ON THE ONE HAND, THERE IS THE INCOME WHICH HAS TO BE SET ASIDE TO COVER
ACTUAL EXPENSES AND THE LIABILITIES TO THE POLICYHOLDERS.  ON THE OTHER
HAND, THERE IS FREE INVESTMENT INCOME, NOT NEEDED FOR THE OPERATION OF
THE COMPANY; THIS EXCESS INCOME IS FULLY TAXABLE. 

"ALL TAX LAWS DEALING WITH LIFE INSURANCE COMPANIES HAVE ALLOWED
DEDUCTIONS FROM INCOME FOR REQUIRED INTEREST.  EVEN THE EXCISE TAX
FORMULAS HAVE PROVIDED FOR SUCH DEDUCTIONS.  THE BASIC REASON FOR THIS
DEDUCTION IS THAT REQUIRED INTEREST CANNOT BE CONSTRUED TO BE TRUE
INCOME OR PROFIT, JUST AS THE COST OF GOODS SOLD BY A MERCHANT MUST BE
ELIMINATED FROM HIS GROSS INCOME."  HEARINGS ON H.R. 4245 BEFORE THE
SENATE COMMITTEE ON FINANCE, 86TH CONG., 1ST SESS., 696-697. 

UNDER THIS VIEW OF THE RESERVE INCREMENT, WE THINK THIS CASE IS
STRIKINGLY SIMILAR TO DENMAN V. SLAYTON.  ON THIS THEORY THE RESERVE
INCREMENT IS AN ACCRUED EXPENSE IN THE NATURE OF INTEREST ON THE FUNDS
OBTAINED FROM POLICYHOLDERS FOR INVESTMENT, AND THE DENIAL OF THAT PART
OF THE DEDUCTION WHICH EXEMPT INCOME BEARS TO TOTAL INVESTMENT RECEIPTS
REPRESENTS DISALLOWANCE OF AN EXPENSE ATTRIBUTABLE TO THE PRODUCTION OF
EXEMPT INCOME, WHICH IS PRECISELY WHAT DENMAN PERMITS.  IT IS ARGUED,
HOWEVER, THAT THE RULE OF DENMAN DISALLOWING DEDUCTION OF EXEMPT
INTEREST IS LIMITED TO "BUT FOR" SITUATIONS:  INTEREST INCURRED ON
LOANS USED TO PURCHASE EXEMPT BONDS MAY BE DISALLOWED ONLY WHERE THERE
WOULD HAVE BEEN NO INTEREST CHARGE EXCEPT FOR THE PURCHASE OF EXEMPT
SECURITIES.  IT IS BY NO MEANS CLEAR THAT THIS IS NOT THE CASE HERE,
FOR THERE IS A RELATIONSHIP BETWEEN THE AMOUNT OF THE RESERVE
INCREMENT, REPRESENTING INTEREST ON FUNDS OBTAINED FROM POLICYHOLDERS,
AND THE AMOUNT OF A COMPANY'S INVESTMENTS, EXEMPT OR OTHERWISE, UNLESS
IT BE ASSUMED THAT A COMPANY DOES NOT SELL POLICIES AND OBTAIN FUNDS
FOR THE PURPOSE OF INVESTMENT.  HOWEVER THIS MAY BE, WE DO NOT READ
DENMAN SO NARROWLY.  WE THINK INTEREST CAN BE SAID TO BE INCURRED OR
CONTINUED AS A COST OF PRODUCING EXEMPT INCOME WHENEVER A TAXPAYER
BORROWS FOR THE PURPOSE OF MAKING INVESTMENTS AND IN FACT INVESTS FUNDS
IN EXEMPT SECURITIES. 

THERE WAS NO PROBLEM OF ALLOCATING INTEREST IN DENMAN, BUT SURELY NO
ONE DOUBTS THAT THE CASE WOULD NOT HAVE BEEN ANY DIFFERENT IF THE
DEALER THERE BORROWED AND PURCHASED TAXABLE SECURITIES WITH HALF THE
LOAN AND USED THE OTHER HALF TO PURCHASE EXEMPT SECURITIES. 

FN18  THERE IS NOTHING TO THE ARGUMENT THAT SINCE THE RESERVE
OBLIGATION REMAINS THE SAME WHETHER THERE IS EXEMPT INCOME OR NOT, NO
PART OF THE OBLIGATION IS FAIRLY CHARGEABLE TO EXEMPT INCOME.  IT COULD
AS WELL BE ARGUED THAT BECAUSE THE RESERVE REQUIREMENT IS THE SAME
WHETHER THERE IS TAXABLE INCOME OR NOT, NONE OF THE RESERVE INCREMENT
MAY BE OBTAINED BY PRE-EMPTING TAXABLE INCOME.  THE FACT IS THAT THE
ANNUAL ADDITION TO RESERVE MUST BE MADE UP FROM INVESTMENT INCOME,
WHATEVER ITS SOURCE, AND THE COMPANY OWES TO ITS POLICYHOLDERS A SHARE
OF THE TAX-EXEMPT DOLLAR FULLY AS MUCH AND IN THE SAME SENSE THAT IT
OWES A PART OF THE TAXABLE DOLLAR. 
..END :





















WATERMAN STEAMSHIP CORP. V. UNITED STATES 381 U.S. 252 


NO. 245.  ARGUED APRIL 26-27, 1965.  - DECIDED MAY 17, 1965.  - 330 F.2D
128, AFFIRMED. 


DURING THE PERIOD 1942-1946 PETITIONER PURCHASED 18 GOVERNMENT-BUILT
SHIPS FROM THE UNITED STATES MARITIME COMMISSION FOR $46,973,167 AFTER
A TRADE-IN ALLOWANCE FOR FOUR OF ITS OWN SHIPS.  PETITIONER THEN
CHARTERED THE SHIPS BACK TO THE GOVERNMENT, RECEIVING $13,430,431 IN
CHARTER HIRE, ON WHICH PETITIONER PAID FEDERAL INCOME TAXES.  THE
SUBSEQUENTLY ENACTED MERCHANT SHIP SALES ACT OF 1946 PROVIDED FOR SALE
OF WAR-BUILT SHIPS WELL BELOW THE COMMISSION'S WARTIME PRICES.  BY
TREATING WARTIME SALES AS MADE WHEN THE ACT WAS PASSED, SEC. 9 AFFORDED
SHIP PURCHASERS LIKE PETITIONER AN OPPORTUNITY TO APPLY FOR A DOWNWARD
ADJUSTMENT BY REDUCING THE PURCHASE PRICE PAID TO THE NEW STATUTORY
PRICE AND UNWINDING THE WARTIME TRANSACTIONS, INCLUDING TAX PAYMENTS. 
ALIA, THAT PRE-ACT GOVERNMENT CHARTER HIRE RECEIVED BE TREATED FOR
FEDERAL TAX PURPOSES AS NOT HAVING BEEN RECEIVED OR ACCRUED AS INCOME
BUT AS A REPAYMENT OF THE PURCHASE PRICE.  PETITIONER APPLIED FOR AND
BY AGREEMENT WAS GIVEN SUCH AN ADJUSTMENT, THE STATUTORY SALES PRICE
BEING FIXED AT $17,685,424 (GIVING PETITIONER A GROSS SALES PRICE
ADJUSTMENT OF $29,287,743); AND THE UNWINDING OF THE PRE-ACT
TRANSACTIONS LEFT THE GOVERNMENT A NET CREDIT AFTER APPROPRIATE TAX
ADJUSTMENTS OF $8,818,838, WHICH REDUCED PETITIONER'S NET 1946 SALES
PRICE ADJUSTMENT TO $20,468,904.  IN ITS FEDERAL INCOME TAX RETURNS FOR
1947-1950 PETITIONER TOOK DEPRECIATION ON THE VESSELS ON THE BASIS OF
THE $17,685,424 STATUTORY SALES PRICE, BUT IN 1959 SUES FOR A REFUND,
CONTENDING THAT ITS REAL COST (AND HENCE ITS BASIS FOR DEPRECIATION)
WAS THE DIFFERENCE, AMOUNTING TO $26,504,263, BETWEEN THE ORIGINAL
SALES PRICE AND THE NET 1946 SALES PRICE ADJUSTMENT CREDITED TO
PETITIONER.  THE GOVERNMENT CONTENDED THAT UNDER THE STATUTORY SCHEME
PETITIONER'S REAL COST WAS THE $17,685,424 STATUTORY SALES PRICE.  THE
DIFFERENCE OF $8,818,838 BETWEEN THE TWO FIGURES WAS THE NET CREDIT IN
THE GOVERNMENT'S FAVOR RECEIVED BY PETITIONER IN CHARTER HIRE FROM THE
GOVERNMENT AND WHICH PETITIONER CONTENDED WAS RECEIVED AS INCOME AND
THEREFORE COULD NOT BE TAKEN TO REDUCE ITS COST; WHILE THE GOVERNMENT,
CONCEDING THAT AMOUNT TO HAVE BEEN ORIGINALLY RECEIVED AS INCOME,
CONTENDED THAT IT HAD TO BE TREATED UNDER THE STATUTORY UNWINDING
SCHEME AS A RETURN OF CAPITAL.  THE DISTRICT COURT UPHELD PETITIONER'S
POSITION AND THE COURT OF APPEALS REVERSED.  HELD:  UNDER THE ACT THE
$8,818,838 NET CHARTER HIRE MUST BE TREATED AS A RETURN OF CAPITAL
AGAINST PETITIONER'S ORIGINAL PURCHASE PRICE OF THE SHIPS WHICH THUS,
ALONG WITH THE 1946 LUMP-SUM PAYMENT TO PETITIONER OF $20,468,904,
REDUCED PETITIONER'S COST, AND HENCE ITS BASIS FOR DEPRECIATION, TO
$17,685,424, THE STATUTORY SALES PRICE.  PP. 260-270. 

(A)  TO REALIZE THE STATUTORY PURPOSE OF PUTTING PETITIONER AND THE
GOVERNMENT IN THE POSITIONS THEY WOULD HAVE OCCUPIED HAD THE SALES BEEN
MADE ON THE 1946 STATUTORY ENACTMENT DATE PETITIONER HAD TO REFUND THE
$8,818,838 NET CHARTER HIRE.  P. 261. 

(B)  THOUGH PETITIONER RECEIVED $20,468,904 IN THE FORM OF A LUMP-SUM
PAYMENT AS OF 1946, IT HAD ALSO RECEIVED $8,818,838 IN 1942-1946 IN
GOVERNMENT PAYMENTS WHICH BUT FOR ITS OWNERSHIP OF THE SHIPS (WHICH THE
ACT UNWINDS) IT WOULD NOT HAVE RECEIVED.  P. 262. 

(C)  AS PART OF THE STATUTORY UNWINDING, PETITIONER'S INCOME TAXES
WERE RECOMPUTED ON THE STATUTORY ASSUMPTIONS THAT IT DID NOT RECEIVE
CHARTER HIRE ON THE 18 SHIPS BOUGHT FROM THE GOVERNMENT IN 1942-1946,
BUT THAT IT DID RECEIVE CHARTER HIRE ON THE FOUR SHIPS IT TRADED IN,
AND INTEREST ON ITS INVESTMENT IN THE 18 SHIPS.  P. 263. 

(D)  PETITIONER'S POSITION WOULD RESULT IN THE ANOMALY THAT DUE TO
THE UNWINDING OPERATION IT WOULD PAY NO FEDERAL INCOME TAXES ON THE
$8,818,838, WHICH IT CLAIMS IS INCOME.  P. 264. 

(E)  PETITIONER'S POSITION THAT THE ORIGINAL SHIP ACQUISITION COSTS
BE ADJUSTED TO 1946 PRICES BUT THAT ITS COSTS AS A BASIS FOR
DEPRECIATION SHOULD RELATE BACK TO THE ORIGINAL ACQUISITION DATES
CONTRAVENES THE TERMS AND LEGISLATIVE HISTORY OF THE ACT, THE DATE OF
WHOSE ENACTMENT FIXES THE SALES PRICES, AND ITS PURPOSE OF PUTTING PRE
ACT AND POST-ACT PURCHASERS "ON EXACTLY THE SAME BASIS."  PP. 264-266. 

(F)  CONGRESSIONAL PASSAGE IN 1950 OF A "CLARIFYING" AMENDMENT TO THE
1946 ACT WHICH WOULD HAVE PROVIDED THE TAX RESULT URGED BY PETITIONER,
VETOED BY PRESIDENT TRUMAN, WOULD NOT SUPPLANT THE CONTEMPORANEOUS
INTENT OF THE CONGRESS WHICH ENACTED THE STATUTE.  FOGARTY V. UNITED
STATES, 340 U.S. 8, FOLLOWED.  PP. 268-270. 

WATERMAN STEAMSHIP CORP. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE TAX CONSEQUENCES OF THE PURCHASE BY PETITIONER
OF A NUMBER OF SHIPS FROM THE UNITED STATES GOVERNMENT DURING THE
SECOND WORLD WAR AND THE SUBSEQUENT POST-WAR REFUND BY THE GOVERNMENT,
PURSUANT TO AN ACT OF CONGRESS, OF A SUBSTANTIAL PORTION OF THE
PURCHASE PRICE. 

AT VARIOUS TIMES DURING THE YEARS 1942 THROUGH 1946, PETITIONER
PURCHASED FROM THE UNITED STATES MARITIME COMMISSION A TOTAL OF 18
SHIPS THAT HAD BEEN BUILT BY THE UNITED STATES GOVERNMENT.  IT PAID A
TOTAL OF $46,973,167 FOR THESE VESSELS (AFTER AN ALLOWANCE FOR THE
TRADE-IN BY PETITIONER OF FOUR OF ITS OWN SHIPS).  (FN1)  THE VESSELS
PURCHASED BY PETITIONER WERE IMMEDIATELY CHARTERED BACK, BY BAREBOAT
CHARTERS, TO THE UNITED STATES SO THAT THE GOVERNMENT CONTINUED TO
OPERATE THEM.  (FN2) THE UNITED STATES PAID A TOTAL OF $13,430,431 IN
CHARTER HIRE TO PETITIONER FOR THE WARTIME USE OF THESE SHIPS DURING
THE YEARS 1942 THROUGH 1946, WHICH AMOUNT PETITIONER REPORTED IN ITS
FEDERAL INCOME TAX RETURNS FOR THOSE YEARS. 

ON MARCH 8, 1946, CONGRESS ENACTED THE MERCHANT SHIP SALES ACT OF
1946, 60 STAT. 41, AS AMENDED, 50 U.S.C. APP. SEC. 1735 ET SEQ. (1958
ED.), WHICH GAVE AMERICAN CITIZENS THE RIGHT TO PURCHASE WAR-BUILT
SHIPS FROM THE UNITED STATES AT STATUTORY SALES PRICES WHICH WERE
SUBSTANTIALLY BELOW THE PRICES AT WHICH SUCH VESSELS WERE SOLD BY THE
COMMISSION DURING THE WAR.  SECTION 9 OF THE ACT, 50 U.S.C. APP. SEC.
1742 (1958 ED.), PROVIDED THE OPPORTUNITY, UPON APPLICATION, FOR THOSE,
LIKE PETITIONER, WHO HAD BOUGHT SHIPS DURING THE WAR YEARS TO OBTAIN A
DOWNWARD ADJUSTMENT IN THEIR SALES PRICE "BY TREATING THE VESSEL AS IF
IT WERE BEING SOLD TO THE APPLICANT ON THE DATE OF THE ENACTMENT OF
THIS ACT (MARCH 8, 1946), AND NOT BEFORE THAT TIME."  THE DETAILS OF A
SEC. 9 ADJUSTMENT ARE COMPLEX.  THEY CONSIST, HOWEVER, ESSENTIALLY OF
TWO PARTS:  (1) AN ADJUSTMENT IN THE PURCHASE PRICE DOWN TO THE NEW
STATUTORY PRICE (SECS. 9(B)(1)-(4)); AND (2) AN UNWINDING OF THE
TRANSACTIONS, INCLUDING TAX PAYMENTS, THAT OCCURRED AS A RESULT OF THE
SALE PRIOR TO 1946 (SECS. 9(B)(5), (6), (C)(1)).  (FN3) 

PETITIONER APPLIED FOR A DOWNWARD ADJUSTMENT OF THE SALES PRICE OF
ITS 18 SHIPS PURCHASED PRIOR TO THE ACT.  THE MARITIME COMMISSION
GRANTED SUCH AN ADJUSTMENT, DETERMINING THAT UNDER THE STATUTE THE
SALES PRICE OF THESE VESSELS SHOULD BE $17,685,424.  (FN4)  PETITIONER
THEREFORE WAS CREDITED WITH $29,287,743, THE DIFFERENCE BETWEEN THE
STATUTORY SALES PRICE AND THE ORIGINAL PRICE OF $46,973,167.   (FN5) 

THE PRE-ACT TRANSACTIONS WERE THEN UNWOUND, PURSUANT TO THE STATUTE,
AS FOLLOWS:  (1) THE GOVERNMENT WAS CREDITED $13,430,431, REPRESENTING
THE CHARTER HIRE WHICH HAD BEEN PAID BY THE GOVERNMENT TO PETITIONER
FOR USE OF THE 18 VESSELS FROM 1942 TO 1946; (FN6) (2) THE GOVERNMENT
WAS DEBITED $1,495,125, REPRESENTING CHARTER HIRE WHICH WOULD HAVE BEEN
PAID BY THE GOVERNMENT TO PETITIONER PRIOR TO 1946 FOR USE OF THE FOUR
SHIPS TRADED IN BY PETITIONER ON THE ORIGINAL PURCHASE; (3) THE
GOVERNMENT WAS DEBITED $2,686,262, REPRESENTING A RETURN OF THE
INTEREST PETITIONER PAID ON THE MORTGAGES AND INTEREST INCOME WHICH
PETITIONER COULD HAVE EARNED ON THE CASH INVESTED IN THE 18 VESSELS
PRIOR TO THE DATE OF THE ACT HAD THIS CASH NOT BEEN SO COMMITTED; AND
(4) THE GOVERNMENT WAS DEBITED $430,206, REPRESENTING AN OVERPAYMENT BY
PETITIONER OF FEDERAL INCOME TAXES, WHICH, UNDER THE ACT, WERE
RECALCULATED TO GIVE EFFECT TO THE FOREGOING UNWINDING.  (FN7)  THE SUM
OF THE UNWINDING CREDITS AND DEBITS WAS A NET CREDIT IN FAVOR OF THE
GOVERNMENT OF $8,818,838.  THIS AMOUNT REDUCED PETITIONER'S CREDIT ON
THE ORIGINAL SALES PRICE OF $46,973,167 FROM $29,287,743 TO
$20,468,904.  (FN8) 

IN TABULAR FORM, THE COMPUTATIONS AND CREDITS MADE UNDER THE ACT WERE
AS FOLLOWS:

                               STATUTORY ADJUSTMENTS. 

1.  ORIGINAL SALES PRICE               $46,973,167 

2.  STATUTORY SALES PRICE
17,685,424 

3.  GROSS SALES PRICE ADJUSTMENT (SECS. 9(B)(1)-(4) AND (7))
  $29,287,743 

4.  CREDIT TO GOVERNMENT: 

5.    CHARTER HIRE ON 18 VESSELS (SEC. 9(B)(6))
13,430,431 

6.  DEBITS AGAINST GOVERNMENT: 

7.    CHARTER HIRE ON 4 SHIPS TRADED IN (SEC. 9(B)(6))
(1,495,125) 

8.    INTEREST ON PETITIONER'S INVESTMENT (SEC. 9(B)(5))
(2,686,262) 

9.    OVERPAYMENT BY PETITIONER OF FEDERAL INCOME TAXES

      (SEC. 9(B)(8))             (430,206) 

10.  NET CREDIT IN FAVOR OF GOVERNMENT (LINE 5 MINUS LINES 7-9)
    8,818,838 

11.  NET 1946 SALES PRICE ADJUSTMENT (LINE 3 MINUS LINE 10)
$20,468,904  (FN9) 

NEITHER PARTY HERE DISPUTES THE ACCURACY OF ANY OF THESE
COMPUTATIONS.  THE ISSUE BETWEEN THE PARTIES IS THE EFFECT OF THESE
DETERMINATIONS ON THE TAX TREATMENT OF THE SHIPS FOR THE YEARS
FOLLOWING THIS 1946 ADJUSTMENT.  IN ITS FEDERAL INCOME TAX RETURNS FOR
THE YEARS 1947 THROUGH 1950 PETITIONER TOOK DEPRECIATION ON THESE
VESSELS ON THE ASSUMPTION THAT ITS COST WAS $17,685,424, THE STATUTORY
SALES PRICE.  IN 1959, HOWEVER, PETITIONER SUED IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA FOR A TAX REFUND,
CONTENDING THAT ITS REAL COST AND THEREFORE ITS BASIS FOR DEPRECIATION
WAS NOT THE STATUTORY SALES PRICE, $17,685,424, BUT RATHER $26,504,263,
THE DIFFERENCE BETWEEN $46,973,167, THE ORIGINAL SALES PRICE, AND
$20,468,904, THE NET 1946 SALES PRICE ADJUSTMENT CREDITED TO
PETITIONER.  THE DISTRICT COURT AGREED WITH PETITIONER THAT ITS REAL
COST WAS $26,504,263 AND THAT THIS WAS ITS DEPRECIATION BASIS FOR TAX
PURPOSES.  203 F. SUPP. 915.  THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT REVERSED, HOWEVER, HOLDING THAT, UNDER THE STATUTORY SCHEME,
PETITIONER'S REAL COST WAS $17,685,424, THE STATUTORY SALES PRICE, AND
THAT THIS THEREFORE WAS ITS PROPER DEPRECIATION BASIS.  330 F.2D 128. 
THE DIFFERENCE BETWEEN THE LOWER COURTS' DETERMINATIONS OF THE REAL
COST TO PETITIONER OF THESE 18 SHIPS IS $8,818,838, (FN10) THE NET
CREDIT IN FAVOR OF THE GOVERNMENT IN THE PRECEDING CALCULATIONS OF THE
1946 SALES PRICE ADJUSTMENT.  WE GRANTED CERTIORARI, 379 U.S. 927, TO
RESOLVE A CONFLICT BETWEEN COURTS OF APPEALS AND THE COURT OF CLAIMS ON
THE ISSUE HERE INVOLVED.  (FN11)  FOR THE REASONS SET FORTH BELOW, WE
AGREE WITH THE COURT OF APPEALS IN THIS CASE AND CONSEQUENTLY AFFIRM
THE JUDGMENT. 

PETITIONER'S ARGUMENT, PUT QUITE SIMPLY, IS THAT DURING THE WAR IT
PAID $46,973,167 FOR THE SHIPS.   IN 1946, PETITIONER ASSERTS, IT WAS
PAID BACK $20,468,904.  THUS PETITIONER CONCLUDES THAT ITS COST AND
THEREFORE ITS DEPRECIATION BASIS FOR TAX PURPOSES IN THESE SHIPS IS THE
DIFFERENCE BETWEEN THESE TWO FIGURES, OR $26,504,263.  (FN12)  THE
GOVERNMENT AGREES THAT PETITIONER PAID $46,973,167 DURING THE WAR AND
RECEIVED BACK $20,468,904 IN 1946.  IT POINTS OUT, HOWEVER, THAT FROM
1942 THROUGH 1946 PETITIONER ALSO RECEIVED FROM THE GOVERNMENT IN
CHARTER HIRE FOR THE USE OF THE SHIPS, A NET OF $8,818,838 (THE NET
CREDIT TO THE GOVERNMENT UNDER THE UNWINDING PROVISIONS OF THE ACT),
WHICH PETITIONER WOULD NOT HAVE RECEIVED HAD IT NOT BOUGHT THESE SHIPS
PRIOR TO THE DATE OF THE ACT.  THE GOVERNMENT CONTENDS THAT WHEN THIS
$8,818,838 PAID TO PETITIONER FROM 1942 TO 1946 IS ADDED TO THE AMOUNT
OF $20,468,904 PAID AS A LUMP SUM TO PETITIONER IN 1946, IT IS CLEAR
THAT PETITIONER HAS RECEIVED A TOTAL OF $29,287,743 (FN13) FROM THE
GOVERNMENT.  THE GOVERNMENT CONCLUDES THAT PETITIONER'S COST AND
THEREFORE ITS BASIS FOR DEPRECIATION FOR TAX PURPOSES IN THESE SHIPS IS
THE DIFFERENCE BETWEEN THE ORIGINAL SALES PRICE, $46,973,167, AND THIS
TOTAL REFUND, $29,287,743, OR $17,685,424 - THE STATUTORY SALES PRICE. 
PETITIONER CANNOT AND DOES NOT DISPUTE THE FACT THAT IT RECEIVED THIS
$8,818,838 FROM THE GOVERNMENT FROM 1942 THROUGH 1946.  IT ARGUES,
HOWEVER, THAT THIS SUM WAS RECEIVED AS INCOME AND THUS CANNOT BE TAKEN
TO REDUCE PETITIONER'S COST.  THE GOVERNMENT, ON THE OTHER HAND,
CONTENDS THAT, ALTHOUGH THE $8,818,838 WAS UNDOUBTEDLY ORIGINALLY
RECEIVED AS INCOME, UNDER THE STATUTORY UNWINDING SCHEME THIS AMOUNT
MUST BE DEEMED A RETURN OF CAPITAL WHICH HAS REDUCED PETITIONER'S
COST.  THE ONLY ISSUE DIVIDING THE PARTIES, THEREFORE, IS THE PROPER
TREATMENT OF THIS $8,818,838, AN ISSUE WHICH MUST BE DETERMINED BY
REFERENCE TO THE 1946 ACT.  (FN14) 

THAT, UPON APPLICATION, A STATUTORY ADJUSTMENT "SHALL BE MADE, AS
HEREINAFTER PROVIDED, BY TREATING THE VESSEL AS IF IT WERE BEING SOLD
TO THE APPLICANT ON THE DATE OF THE ENACTMENT OF THIS ACT (MARCH 8,
1946), AND NOT BEFORE THAT TIME."  IT IS CLEAR THAT IF PETITIONER HAD
BOUGHT THE SHIPS ON THE DATE OF THE ACT ITS COST AND DEPRECIATION BASIS
WOULD HAVE BEEN THE STATUTORY SALES PRICE OF $17,685,424 AND THAT
PETITIONER WOULD NOT HAVE RECEIVED NET CHARTER HIRE FROM THE GOVERNMENT
OF $8,818,838 - A PAYMENT ATTRIBUTABLE TO THE FACT THAT THE VESSELS
INVOLVED WERE SOLD TO IT BEFORE THE DATE OF THE 1946 ACT.  (FN15) 

IN ORDER TO ACHIEVE THE STATUTORY PURPOSE OF PUTTING PETITIONER AND
THE GOVERNMENT IN THE POSITIONS THEY WOULD HAVE OCCUPIED HAD PETITIONER
BOUGHT THE SHIPS ON THE 1946 STATUTORY ENACTMENT DATE AND NOT BEFORE
THAT TIME, IT WAS NECESSARY THAT THIS $8,818,838 NET CHARTER HIRE BE
REFUNDED TO THE GOVERNMENT.  IN EFFECT THIS IS JUST WHAT SEC. 9
PROVIDES.  AS APPLIED TO THIS CASE, PETITIONER WAS FIRST CREDITED WITH
$29,287,743, THE DIFFERENCE BETWEEN THE ORIGINAL SALES PRICE,
$46,973,167, AND THE LOWER STATUTORY SALES PRICE, $17,685,424.  THE
GOVERNMENT OWED THIS AMOUNT OF $29,287,743 TO PETITIONER.  BECAUSE OF
THE UNWINDING OF THE PRE-ACT TRANSACTIONS PURSUANT TO THE STATUTORY
SCHEME, HOWEVER, THE GOVERNMENT WAS CREDITED WITH $8,818,838,
REPRESENTING THE NET AMOUNT, AFTER APPROPRIATE TAX ADJUSTMENTS, WHICH
PETITIONER RECEIVED FROM THE UNITED STATES GOVERNMENT FROM 1942 THROUGH
1946 OVER AND ABOVE THE AMOUNT WHICH IT WOULD HAVE EARNED HAD IT NOT
PURCHASED THE SHIPS FROM THE GOVERNMENT PRIOR TO THE STATUTORY
ADJUSTMENT DATE.  PETITIONER OWED THIS AMOUNT OF $8,818,838 TO THE
GOVERNMENT. 

THE GOVERNMENT COULD HAVE PAID ITS OBLIGATION TO PETITIONER BY ITS
CHECK IN THE AMOUNT OF $29,287,743.  PETITIONER, IN TURN, COULD HAVE
PAID ITS OBLIGATION TO THE GOVERNMENT BY ITS CHECK IN THE AMOUNT OF
$8,818,838.  OBVIOUSLY, IT MAKES NO DIFFERENCE THAT THIS SAME RESULT
WAS REACHED THROUGH AN OFFSETTING OF THE MUTUAL DEBTS WHICH RESULTED IN
A NET CREDIT TO PETITIONER OF THEIR DIFFERENCE - $20,468,904.  (FN16)
THUS PETITIONER IS CORRECT IN ITS ASSERTION THAT IT ONLY RECEIVED
$20,468,904 AS A LUMP SUM PAYMENT IN 1946.  IT IS NOT CORRECT, HOWEVER,
IN ITS ASSERTION THAT THIS WAS THE TOTAL AMOUNT IT RECEIVED IN
REPAYMENT OF THE SALES PRICE.  THE TOTAL IT RECEIVED WAS $29,287,743;
IT RECEIVED $20,468,904 OF THIS AMOUNT IN A LUMP SUM IN 1946 AND
$8,818,838 (FN17) IN THE YEARS 1942 THROUGH 1946 IN GOVERNMENT PAYMENTS
WHICH IT WOULD NOT HAVE RECEIVED HAD IT NOT OWNED THE SHIPS DURING
THOSE YEARS - AN OWNERSHIP WHICH THE STATUTE UNWINDS.  THIS $29,287,743
TOTAL REFUND MUST BE CREDITED AGAINST PETITIONER'S ORIGINAL COST OF
$46,973,167, PRODUCING A NET COST TO PETITIONER AND THUS A BASIS FOR
DEPRECIATION OF $17,685,424 - THE STATUTORY SALES PRICE.  (FN18) 

IN ORDER TO GIVE EFFECT TO THE STATUTORY SCHEME, THEREFORE, THIS
$8,818,838 MUST BE TREATED NOT AS INCOME BUT AS A RETURN OF CAPITAL
AGAINST THE ORIGINAL $46,973,167 PURCHASE PRICE.  THAT THIS IS THE
PROPER WAY OF TREATING THIS AMOUNT FOR TAX PURPOSES IS MADE CLEAR BY
THE STATUTORY LANGUAGE WHICH DIRECTS RECOMPUTATION OF AN APPLICANT'S
FEDERAL INCOME TAXES BASED UPON THE UNWINDING OF THE PRE-ACT
TRANSACTIONS.  AS A CONDITION OF RECEIVING AN ADJUSTMENT UNDER THE ACT,
SEC. 9(C)(1) REQUIRES THE APPLICANT TO AGREE (1) THAT THE CHARTER HIRE
ACTUALLY RECEIVED FROM THE UNITED STATES FOR THE SHIPS PRIOR TO THE ACT
"SHALL BE TREATED FOR FEDERAL TAX PURPOSES AS NOT HAVING BEEN RECEIVED
OR ACCRUED AS INCOME"; (2) THAT "DEPRECIATION AND AMORTIZATION ALLOWED
OR ALLOWABLE WITH RESPECT TO THE VESSEL UP TO THE DATE OF THE ENACTMENT
OF THIS ACT FOR FEDERAL TAX PURPOSES SHALL BE TREATED AS NOT HAVING
BEEN ALLOWABLE"; AND (3) THAT THE RETURN OF INTEREST PAID ON THE
MORTGAGES PLUS THE INCOME ATTRIBUTED TO THE APPLICANT WHICH IT WOULD
HAVE RECEIVED AS CHARTER HIRE ON THE SHIPS TRADED IN AND INTEREST ON
THE CASH INVESTED WHICH IT COULD HAVE EARNED HAD IT NOT BOUGHT THE
SHIPS PRIOR TO THE DATE OF THE ACT "SHALL BE TREATED FOR FEDERAL TAX
PURPOSES AS HAVING BEEN RECEIVED AND ACCRUED AS INCOME  ...  ."  THE
NET SUM DERIVED FROM THESE TAX COMPUTATIONS IS ASSIGNED AS A CREDIT TO
THE PARTY IN WHOSE FAVOR THEY RUN, AND PAYMENT OF THIS CREDIT IS
EXPLICITLY DEEMED TO CONSTITUTE PAYMENT OF THE TAX OVERPAYMENT OR
DEFICIENCY CREATED BY THE RECOMPUTATIONS.  (SEC. 9(B)(8)).    ALL OF
THESE PROVISIONS, AS WE HAVE ALREADY STATED, WERE GIVEN EFFECT IN THIS
CASE.  PURSUANT TO AGREEMENT BETWEEN PETITIONER AND THE GOVERNMENT,
PETITIONER'S FEDERAL INCOME TAXES WERE RECOMPUTED ON THE STATUTORY
ASSUMPTIONS THAT IT DID NOT RECEIVE THE CHARTER HIRE ON THE 18 VESSELS
PURCHASED FROM THE GOVERNMENT FROM 1942 THROUGH 1946, BUT DID RECEIVE
CHARTER HIRE ON THE FOUR SHIPS IT TRADED IN AND INTEREST ON ITS
INVESTMENT IN THE 18 SHIPS DURING THIS PERIOD.  BASED ON THIS
RECALCULATION, PETITIONER WAS HELD ENTITLED TO A TAX REFUND OF
$430,206, FOR WHICH THE GOVERNMENT WAS DEBITED IN THE UNWINDING
COMPUTATIONS.  SEE THE TABLE ON P. 257, SUPRA.  THE TOTAL IMPACT OF
THESE TAX PROVISIONS MAKES IT QUITE CLEAR THAT THE NET AMOUNT THE
GOVERNMENT PAID TO PETITIONER AS A RESULT OF ITS OWNING THE SHIPS PRIOR
TO 1946, $8,818,838, AS THE STATUTE SPECIFICALLY STATES, "SHALL BE
TREATED FOR FEDERAL TAX PURPOSES AS NOT HAVING BEEN RECEIVED OR ACCRUED
AS INCOME," BUT RATHER SHALL BE TREATED AS A REPAYMENT OF THE PURCHASE
PRICE, OR, IN OTHER WORDS, A RETURN OF CAPITAL REDUCING BASIS. 
MOREOVER, THE RESULT CONTENDED FOR BY PETITIONER WOULD PRODUCE THE
ANOMALY THAT, DUE TO THE UNWINDING CALCULATIONS, THERE IS NO INCOME TAX
PAID OR TO BE PAID ON THE $8,818,838 WHICH PETITIONER CLAIMS IS INCOME
EARNED DURING 1942 TO 1946.  THIS ANOMALY IS ONLY AVOIDED IF, AS
CONGRESS OBVIOUSLY INTENDED, THIS AMOUNT BE TREATED NOT AS INCOME BUT
RATHER AS A RETURN OF CAPITAL. 

FURTHERMORE, PETITIONER'S ARGUMENT IS NECESSARILY PREDICATED ON THE
THEORY THAT, ALTHOUGH THE ORIGINAL ACQUISITION COST OF THE SHIPS
SHOULD, UNDER THE STATUTORY SCHEME, BE ADJUSTED TO THE LOWER 1946
PRICE, NEVERTHELESS, PETITIONER'S COST AS A BASIS FOR DEPRECIATION
SHOULD REMAIN THE HIGHER ONE DETERMINED ON THE ASSUMPTION THAT THE
SHIPS WERE PURCHASED NOT IN 1946 BUT AT THE TIME OF THEIR ORIGINAL
ACQUISITIONS, DATING BACK TO 1942.  IT COULD ONLY BE UNDER SUCH A
THEORY THAT THE $8,818,838 NET CHARTER HIRE RECEIVED BY PETITIONER FROM
THE GOVERNMENT COULD BE CONSIDERED TO BE INCOME AND NOT A RETURN OF
CAPITAL.  BUT THE ACT VITIATES ANY SUCH THEORY IN ITS EXPRESS STATEMENT
THAT THE STATUTE TREATS "THE VESSEL AS IF IT WERE BEING SOLD TO THE
APPLICANT ON THE DATE OF THE ENACTMENT OF THIS ACT, AND NOT BEFORE THAT
TIME."  NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF THE ACT
SUPPORTS PETITIONER'S CONTENTION THAT THIS STATUTORY TREATMENT WAS TO
APPLY TO GIVE PETITIONER A LOWER ACTUAL COST OF ACQUISITION BUT THAT
THE CONTRARY TREATMENT SOUGHT BY PETITIONER WAS TO APPLY TO GIVE IT, AT
THE SAME TIME, A HIGHER COST BASIS FOR DEPRECIATION PURPOSES. 

INDEED, OUR CONCLUSION DERIVED FROM THE PLAIN WORDS OF THE STATUTE IS
CONFIRMED FULLY BY THE LEGISLATIVE HISTORY OF THE ACT.  AS ORIGINALLY
REPORTED OUT OF THE HOUSE COMMITTEE ON THE MERCHANT MARINE AND
FISHERIES, SEE H.R. REP. NO. 831, 79TH CONG., 1ST SESS., AND THE SENATE
COMMITTEE ON COMMERCE, SEE S. REP. NO. 807, 79TH CONG., 1ST SESS., THE
BILL CONTAINED PETITIONER'S ASSUMPTION THAT THE SALE TOOK PLACE NOT ON
THE DATE OF THE ACT, BUT AT ITS ORIGINAL DATE AND AT THE LOWER
STATUTORY SALES PRICE.  ON THE FLOOR OF THE HOUSE, HOWEVER, A COMMITTEE
AMENDMENT WAS PROFFERED AND ACCEPTED WHICH REJECTED THIS ASSUMPTION AND
PREMISED THE OPERATION OF SEC. 9 ON THE CONTRARY ASSUMPTION THAT THE
SALE TOOK PLACE ON THE DATE OF THE ENACTMENT OF THE ACT AND NOT
BEFORE.  91 CONG. REC. 9281.  THIS COMMITTEE AMENDMENT IS THE VERSION
OF THE ACT THAT WAS ENACTED INTO LAW.  SEE H.R. CONF. REP. NO. 1526,
79TH CONG., 2D SESS., 17. 

REPRESENTATIVE (NOW SENATOR) HENRY JACKSON, THE MANAGER OF THE
COMMITTEE AMENDMENTS ON THE HOUSE FLOOR, EXPLAINED IT AS FOLLOWS: 

"SECTION 9 OF H.R. 3603 PROVIDES FOR A REFUND TO OPERATORS WHO
PURCHASED VESSELS DURING THE WAR, AT WAR COST, BACK TO THE STATUTORY
SALES PRICE CONTAINED IN SECTION 3 OF THE BILL.  SUCH AN ADJUSTMENT IS
FAIR.  WE DO NOT WANT TO PLACE THE WARTIME PURCHASER AT A DISADVANTAGE
WITH HIS COMPETITOR WHO ACQUIRES A SIMILAR VESSEL UNDER THE PROVISIONS
OF THIS BILL. 

"HOWEVER, SECTION 9 CONTAINS MANY LOOPHOLES WHICH IN MY OPINION
PLACES THE WARTIME PURCHASER IN A FAR BETTER POSITION THAN FUTURE
PURCHASERS.  FOR ONE THING, THE WARTIME PURCHASER, UNDER SECTION 9,
WOULD BE ALLOWED TRADE-IN ALLOWANCES FAR IN EXCESS OF THOSE PROVIDED
UNDER THE COMMITTEE AMENDMENT TO SECTION 8. 

"IF THERE IS TO BE EQUALITY BETWEEN PAST AND FUTURE PURCHASES THERE
MUST BE COMPARABLE TERMS AND NOTHING LESS  ...  . 

     *         *         *         * * 

"I HAVE PROPOSED CERTAIN MODIFICATIONS TO SECTION 9 OF H.R. 3603
WHICH HAS BEEN ACCEPTED AS A COMMITTEE AMENDMENT.  THE EFFECT OF THIS
AMENDMENT IS TO TREAT PRIOR SALES AS HAVING TAKEN PLACE ON THE DATE OF
THE ENACTMENT OF THIS BILL.  THE OPERATOR IS COMPENSATED FOR ALL ACTUAL
MONEY INVESTMENT TO DATE BY AN ALLOWANCE OF 3 1/2 PERCENT INTEREST
THEREON. 

     *    *         *         *         * 

"THE COMMITTEE AMENDMENT TREATS ALL OF THESE PRIOR SALES AS BEING
MADE ON THE DATE OF THE BILL'S ENACTMENT AND NOT BEFORE THAT TIME, SO
THAT THE PREVIOUS PURCHASER AND A FUTURE PURCHASER WILL BE PUT ON
EXACTLY THE SAME BASIS.  IN ORDER TO ACCOMPLISH THIS RESULT IT IS
NECESSARY TO 'UNWIND' A PREVIOUS TRANSACTION, AND MOST OF THE
PROVISIONS OF THE COMMITTEE AMENDMENT WHICH APPEAR COMPLICATED ARE THE
PROVISIONS DESCRIBING HOW THIS UNWINDING IS TO BE DONE. 

*         *         *         *         * 

"THESE ARE THE PROVISIONS WHICH THE AMENDMENT INCLUDES FOR THE
PURPOSE OF UNWINDING THE PREVIOUS TRANSACTION.  THE BASIC PRINCIPLE OF
THE AMENDMENT IS VERY SIMPLE - THE PREVIOUS TRANSACTION IS TO BE LOOKED
UPON AS HAVING TAKEN PLACE NOT WHEN IT ACTUALLY DID BUT AS TAKING PLACE
ON THE DATE OF THE BILL'S ENACTMENT AND SUBJECT TO ALL OF THE BILL'S
PROVISIONS  ...  ."  91 CONG. REC. 9182, 9185, 9282. 

TREATING PRE-ACT AND POST-ACT PURCHASERS AS HAVING THE SAME TAX BASIS
IN THE VESSELS - THE STATUTORY SALES PRICE - SERVES THE CONGRESSIONAL
PURPOSE OF PUTTING THE TWO GROUPS "ON EXACTLY THE SAME BASIS." 
OTHERWISE, PRE-ACT PURCHASERS, WITH A HIGHER BASIS FOR FEDERAL INCOME
TAX PURPOSES, WOULD HAVE COMPETITIVE ADVANTAGES OVER POST-ACT
PURCHASERS IN THE ABILITY OF PRE-ACT PURCHASERS TO TAKE HIGHER
DEPRECIATION DEDUCTIONS FROM INCOME, THUS PAYING LOWER TAXES ON THE
SAME INCOME THAN THEIR POST-ACT PURCHASER COMPETITORS.  IN FACT, THIS
ADVANTAGE OVER POST-ACT PURCHASERS IS EXACTLY WHAT PETITIONER SEEKS IN
THIS CASE.  BOTH PETITIONER AND A POST-ACT PURCHASER OF COMPARABLE
SHIPS WOULD PAY A STATUTORY SALES PRICE OF $17,685,424.  YET PETITIONER
SEEKS A DEPRECIATION BASIS OF $26,504,263 WHILE THE POST-ACT PURCHASER
WOULD ONLY HAVE A BASIS OF $17,685,424.  THIS VARYING RESULT IS
PROHIBITED BY THE STATUTE. 

PETITIONER ARGUES, HOWEVER, THAT THE SENATE PREDECESSOR TO SEC. 9 OF
THE 1946 ACT CONTAINED AN EXPRESS PROVISION THAT, IF AN ADJUSTMENT IN
THE PURCHASE PRICE IS MADE FOR A PRE-ACT PURCHASER, FOR PURPOSES OF
FEDERAL INCOME TAXES, "THE VESSEL SHALL BE CONSIDERED AS HAVING BEEN
ACQUIRED AT THE ADJUSTED PURCHASE PRICE (THE STATUTORY SALES PRICE)
...  ."  SEE SEC. 9(E)(1) OF H.R. 3603, AS AMENDED BY THE SENATE
COMMITTEE ON COMMERCE, 79TH CONG., 1ST SESS., 91 CONG. REC. 11535. 
PETITIONER STATES THAT THIS PROVISION, WHICH WOULD CONFIRM THE RESULT
HERE CONTENDED FOR BY THE GOVERNMENT, WAS ELIMINATED FROM THE VERSION
OF THE ACT THAT WAS FINALLY ADOPTED.  FROM THESE FACTS, PETITIONER
WOULD HAVE US INFER THAT CONGRESS REJECTED THE NOTION THAT THE
STATUTORY SALES PRICE SHOULD BE THE COST BASIS OF THE SHIPS FOR
DEPRECIATION.  THIS CONTENTION OF PETITIONER, HOWEVER, COMPLETELY
OVERLOOKS THE FACT THAT THE PROVISION UPON WHICH PETITIONER RELIES WAS
IN AN EARLY VERSION OF THE BILL WHICH AT THAT TIME WAS PREMISED NOT ON
THE ASSUMPTION FINALLY ACCEPTED THAT THE SALLES TOOK PLACE ON THE 1946
STATUTORY ENACTMENT DATE, BUT RATHER ON THE CONTRARY THEORY THAT THE
SALES TOOK PLACE AT THE STATUTORY PRICES BUT ON THEIR ORIGINAL DATES. 
ON THIS LATTER ASSUMPTION WHICH THE BILL THEN CONTAINED, THE EXPRESS
PROVISION OF THE SENATE BILL WAS NECESSARY TO PREVENT THE VERY RESULT
FOR WHICH PETITIONER NOW CONTENDS.  HOWEVER, AS WE HAVE ALREADY POINTED
OUT, IN THE LEGISLATIVE CONSIDERATION OF THE BILL AS FINALLY ENACTED,
THE EARLY VERSION OF THE BILL PREMISED ON THE ASSUMPTION THAT THE SALES
TOOK PLACE AT THEIR ORIGINAL DATES WAS REJECTED AND THE BILL REVISED TO
EMBRACE THE CONTRARY ASSUMPTION THAT THE SALES TOOK PLACE AT THE DATE
OF THE ENACTMENT OF THE ACT AND NOT BEFORE THAT TIME.  SEE PP. 264-266,
SUPRA.  ONCE THIS REVISION IN THE BILL'S BASIC APPROACH WAS MADE THERE
WAS NO LONGER ANY NECESSITY TO PROVIDE, AS THE EARLIER SENATE VERSION
HAD, THAT FOR TAX OR ANY OTHER SPECIFIC PURPOSE "THE VESSEL SHALL BE
CONSIDERED AS HAVING BEEN ACQUIRED AT THE ...  STATUTORY SALES PRICE
...  ."  FOR IN THE BILL AS FINALLY ENACTED, IT WAS EXPRESSLY PROVIDED
THAT THE VESSEL IS TO BE TREATED "AS IF IT WERE BEING SOLD TO THE
APPLICANT ON THE DATE OF THE ENACTMENT OF THIS ACT, AND NOT BEFORE THAT
TIME," AND EXPLICIT PROVISION WAS MADE FOR UNWINDING ALL PRE-ACT
TRANSACTIONS, INCLUDING TAXES.  WE THEREFORE REJECT THIS ARGUMENT OF
PETITIONER. 

FINALLY, PETITIONER ARGUES THAT THE CONGRESSIONAL HISTORY SUBSEQUENT
TO THE ENACTMENT OF THE 1946 STATUTE SUPPORTS ITS INTERPRETATION OF THE
ACT.  IN 1950, CONGRESS PASSED AN AMENDMENT TO THE 1946 ACT, DESIGNED
TO PROVIDE PRECISELY THE TAX RESULT HERE CONTENDED FOR BY PETITIONER. 
(FN19)  THIS AMENDMENT, HOWEVER, WAS VETOED BY PRESIDENT TRUMAN.  WHILE
BOTH HOUSE AND SENATE COMMMITTEE REPORTS CONTAIN STATEMENTS THAT THIS
AMENDMENT WAS DEEMED SIMPLY A CLARIFYING ONE WHICH EXPRESSED THE INTENT
OF THE ORIGINAL ACT, SEE H.R. REP. NO. 1342, 81ST CONG., 1ST SESS., 1;
S. REP. NO. 1915, 81ST CONG., 2D SESS., 1, IT WAS VETOED BY PRESIDENT
TRUMAN ON THE GROUND THAT, ON THE CONTRARY, HE CONSIDERED IT TO VITIATE
THE INTENT OF CONGRESS IN ENACTING THE 1946 ACT.  THE PRESIDENT'S VETO
MESSAGE STATED: 

"OTHER PROVISIONS OF THE MERCHANT SHIP SALES ACT ALREADY PROVIDE THAT
FOR CERTAIN PURPOSES THE COST BASIS OF THE VESSELS OWNED BY PRIOR
PURCHASERS SHALL BE THE STATUTORY SALES PRICE.  THE CONSISTENT PATTERN
OF TREATMENT PROVIDED IN THE ACT WOULD BE DESTROYED BY GRANTING IN THIS
ONE SUBSECTION THE CONCESSION ON COST BASIS ENTAILED IN THIS MEASURE. 
FINALLY, THE BENEFITS ACCRUING TO PRIOR PURCHASERS, IF THEY ARE ALLOWED
TO CAPITALIZE THESE AMOUNTS ABOVE THE STATUTORY SALES PRICE, WOULD
AFFORD THEM THE SPECIAL OPERATING ADVANTAGES WHICH ARISE FROM THE
HIGHER DEPRECIATION ALLOWANCES POSSIBLE UNDER THIS MEASURE."  96 CONG.
REC. 15792. 

THUS, IT IS APPARENT THAT THE PRESIDENT AND CONGRESS DISAGREED OVER
THE MEANING OF A LAW PASSED BY A PRIOR CONGRESS, AND THAT THE
PRESIDENT, DEEMING THE AMENDMENT TO DEPART FROM THE PURPOSE OF THE
ORIGINAL STATUTE, REFUSED TO APPROVE IT SO THAT THE AMENDMENT WAS NOT
ENACTED INTO LAW.  THIS COURT HAS POINTED OUT ON PREVIOUS OCCASIONS
THAT "THE VIEWS OF A SUBSEQUENT CONGRESS FORM A HAZARDOUS BASIS FOR
INFERRING THE INTENT OF AN EARLIER ONE."  UNITED STATES V. PRICE, 361
U.S. 304, 313; UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321, 348-349.  THIS IS PARTICULARLY TRUE WHERE A PRESIDENT (THE SAME
PRESIDENT WHO SIGNED THE ORIGINAL ACT) VETOES A "CLARIFYING" AMENDMENT
ON THE GROUNDS THAT, IN HIS VIEW, IT DOES NOT CLARIFY BUT RATHER
VITIATES THE INTENT OF THE CONGRESS THAT PASSED THE ORIGINAL ACT.  AS
THIS COURT HELD IN FOGARTY V. UNITED STATES, 340 U.S. 8, IN CONSIDERING
A SIMILAR SITUATION, THE ABORTIVE ACTION OF THE SUBSEQUENT CONGRESS
"WOULD NOT SUPPLANT THE CONTEMPORANEOUS INTENT OF THE CONGRESS WHICH
ENACTED THE  ...  ACT."  ID., AT 14.  SEE ALSO UNITED STATES V. WISE,
370 U.S. 405, 411. 

FOR ALL THE REASONS SET FORTH ABOVE, WE CONCLUDE THAT, UNDER THE
STATUTORY SCHEME WHICH UNWINDS THE PRE-ACT TRANSACTIONS, PETITIONER'S
REAL COST AND THUS ITS BASIS FOR DEPRECIATION WAS THE STATUTORY SALES
PRICE OF $17,685,424.  (FN20)  CONSEQUENTLY, THE JUDGMENT OF THE COURT
OF APPEALS IS AFFIRMED. 

FN1  THE TOTAL PURCHASE PRICE (WITHOUT TRADE-IN ALLOWANCE) WAS
$49,582,767.  THE TRADE-IN ALLOWANCE WAS $2,609,600.  THE NET PURCHASE
PRICE OF $46,973,167 CONSISTED OF A CASH PAYMENT OF $6,449,107 AND
MORTGAGE INDEBTEDNESS OF $40,524,060.  FOR SIMPLICITY IN THIS OPINION,
THE $46,973,167 PURCHASE PRICE WILL BE CONSIDERED AS IF IT HAD ALL BEEN
PAID IN CASH. 

FN2  THE LAST TWO VESSELS PURCHASED BY PETITIONER WERE DELIVERED ON
FEBRUARY 27, 1946, AND MARCH 11, 1946, RESPECTIVELY, ONE JUST BEFORE
AND THE OTHER JUST AFTER THE DATE (MARCH 8, 1946) OF THE MERCHANT SHIP
SALES ACT OF 1946, 60 STAT. 41, AS AMENDED, 50 U.S.C. APP.  SEC. 1735
ET SEQ. (1958 ED.), AND THUS WERE NOT CHARTERED TO THE GOVERNMENT
BEFORE THE ACT. 

FN3  SECTION 9, IN RELEVANT PART, IS SET OUT IN THE APPENDIX TO THIS
OPINION. 

FN4  AS WITH THE ORIGINAL PURCHASE PRICE, THIS FIGURE IS AFTER AN
ALLOWANCE FOR THE FOUR VESSELS TRADED IN.  THE STATUTORY PRICE (WITHOUT
TRADE-IN ALLOWANCE) WAS $17,997,981.  THE TRADE-IN ALLOWANCE
(DETERMINED UNDER SEC. 9(B)(7) WAS $312,557.  FOR SIMPLICITY, IN THE
REMAINDER OF THIS OPINION, THE FIGURES USED FOR BOTH THE ORIGINAL SALES
PRICE AND THE STATUTORY SALES PRICE WILL BE THOSE OF THE PRICE AFTER
THESE RESPECTIVE TRADE-IN ALLOWANCES. 

FN5  THE TOTAL $29,287,743 PURCHASE PRICE CREDIT WAS COMPRISED OF A
CASH CREDIT OF $11,735,951 AND A REFUCTION OF MORTGAGE INDEBTEDNESS OF
$17,551,792.  AS WITH THE ORIGINAL PURCHASE PRICE, SEE NOTE 1, SUPRA,
FOR SIMPLICITY THIS TOTAL CREDIT WILL BE CONSIDERED AS IF IT WERE ALL A
CASH CREDIT. 

FN6  SEE NOTE 2, SUPRA. 

FN7  THIS RECALCULATION INCLUDED A READJUSTMENT OF PREVIOUS
DEPRECIATION ALLOWED. 

FN8  THE FIGURE $20,468,904 IS ONE DOLLAR SMALLER THAN THE DIFFERENCE
BETWEEN $29,287,743 AND $8,818,838.  THIS DISCREPANCY IS CAUSED BY THE
OMISSION FROM THE CALCULATION OF FIGURES OF AMOUNTS LESS THAN ONE
DOLLAR.  THIS NET CREDIT OF $20,468,904 WAS DIVIDED INTO A CASH CREDIT
TO PETITIONER OF $2,917,112 AND A REDUCTION OF THE MORTGAGE
INDEBTEDNESS BY $17,551,792.  AGAIN, FOR SIMPLICITY, THIS 1946 NET
CREDIT WILL BE CONSIDERED AS IF IT WERE ALL A CASH CREDIT.  SEE NOTES 1
AND 5, SUPRA.    FN9  SEE NOTE 8, SUPRA. 

FN10  SEE NOTE 14, INFRA. 

FN11  THE COURT OF APPEALS FOR THE THIRD CIRCUIT AGREES WITH THE
RESULT OF THE COURT OF APPEALS IN THIS CASE.  SEE NATIONAL BULK
CARRIERS, INC. V. UNITED STATES, 331 F.2D 407.  HOWEVER, THESE
DECISIONS CONFLICT WITH THAT OF THE COURT OF CLAIMS IN SOCONY MOBIL OIL
CO. V. UNITED STATES, 153 CT. CL. 638, 287 F.2D 910, UPON WHICH THE
DISTRICT COURT IN THE INSTANT CASE RELIED. 

FN12  AS STATED IN NOTE 1, SUPRA, THE ORIGINAL PURCHASE PRICE OF
$46,973,167 CONSISTED OF A $6,449,107 CASH PAYMENT AND $40,524,060 IN
MORTGAGE INDEBTEDNESS.  BY THE STATUTORY ENACTMENT DATE OF MARCH 8,
1946, PETITIONER HAD PAID AN ADDITIONAL $9,786,339 ON THE MORTGAGE.  AT
THAT DATE THEREFORE THE ORIGINAL $46,973,167 PURCHASE PRICE CONSISTED
OF A CASH PAYMENT OF $16,235,446 AND A NOW REDUCED MORTGAGE
INDEBTEDNESS OF $30,737,721.  AS STATED IN NOTE 8, SUPRA, THE 1946
PAYMENT TO PETITIONER WAS COMPRISED OF A CASH CREDIT OF $2,917,112 AND
A REDUCTION OF THE MORTGAGE INDEBTEDNESS BY $17,551,792.  THUS UNDER
PETITIONER'S CALCULATIONS, AFTER THE 1946 ADJUSTMENT ITS COST OF THE
VESSELS WAS THE SUM OF ITS CASH INVESTMENT OF $13,318,334 ($16,235,446
MINUS $2,917,112) AND ITS MORTGAGE INDEBTEDNESS OF $13,185,929
($30,737,721 MINUS $17,551,792), OR $26,504,263. 

FN13  SEE NOTE 8, SUPRA. 

FN14  THE FIGURE OF $8,818,838 IS ONE DOLLAR LOWER THAN THE
DIFFERENCE BETWEEN THE BASIS FIGURES AS ASSERTED BY THE TWO PARTIES. 
THIS DISCREPANCY IS BROUGHT ABOUT BY THE FACT THAT ALL FIGURES HAVE
BEEN ROUNDED OFF TO DOLLAR AMOUNTS.  ALSO, THE ASSERTED BASIS FIGURES
GIVEN IN THE TEXT ARE BASED UPON THE PARTIES' CONTENTIONS AS TO THE
CORRECT COST FIGURE FOR THE 18 SHIPS.  THEY DO NOT TAKE INTO ACCOUNT
THE UNDISPUTED FIGURE OF $175,876 WHICH REPRESENTS THE BASIS OF THE
FOUR SHIPS TRADED IN AND WHICH BOTH PARTIES AGREE SHOULD BE ADDED TO
THEIR RESPECTIVE COST BASES AS GIVEN IN TEXT.  IN TABULAR FORM, THE TAX
CONTENTIONS ARE AS FOLLOWS:

                             GOVERNMENT     PETITIONER 

1.  ORIGINAL SALES PRICE    $46,973,167   $46,973,167 

2.  NET CHARTER PAYMENTS BY THE GOVERNMENT TO PETITIONER

    FROM 1942-1946                                    (8,818,838) (
----------) 

3.  LUMP SUM PAYMENT BY GOVERNMENT TO PETITIONER IN 1946
(20,468,904)  (20,468,904) 

4.  ADJUSTED SALES PRICE
17,685,424    26,504,263 

5.  BASIS OF SHIPS TRADED IN                 175,876       175,876 

6.  BASIS AS OF MARCH 8, 1946
$17,861,300   $26,680,139 

FN15  AS WE HAVE ALREADY DISCUSSED, THIS $8,818,838 REPRESENTS THE
$13,430,431 CHARTER HIRE WHICH PETITIONER RECEIVED FROM THE GOVERNMENT
BECAUSE IT OWNED THESE SHIPS DURING THE WAR, AS OFFSET BY DEBITS TO THE
GOVERNMENT AND CREDITS TO PETITIONER REPRESENTING THE CHARTER HIRE
WHICH PETITIONER WOULD HAVE RECEIVED ON ITS FOUR SHIPS WHICH IT TRADED
IN, INTEREST ON PETITIONER'S INVESTMENT IN THE SHIPS DURING THIS
PERIOD, AND A REFUND OF INCOME TAXES PAID ON THIS UNWOUND CHARTER
HIRE. 

FN16  SEE NOTE 8, SUPRA. 

FN17  SEE NOTE 8, SUPRA. 

FN18  AS NOTED ABOVE, NOTES 1, 5, 8, 12, SUPRA, THESE FIGURES ARE
STATED ON THE BASIS THAT THE WHOLE TRANSACTION WAS FOR CASH.  THE SAME
RESULT IS ACHIEVED, HOWEVER, WHEN THE TRANSACTION IS VIEWED ON THE
MORTGAGE BASIS AS SET FORTH IN NOTE 12, SUPRA.  WHEN THIS IS DONE THE
$8,818,838 IS SEEN AS A CASH PAYMENT BY THE GOVERNMENT TO PETITIONER
WHICH MUST BE CREDITED AGAINST ITS ASSERTED NET CASH INVESTMENT OF
$13,318,334, REDUCING IT TO $4,499,496.  ON THIS BASIS, PETITIONER'S
COST THEREFORE IS ITS NET CASH INVESTMENT OF $4,499,496 PLUS ITS
MORTGAGE INDEBTEDNESS OF $13,185,929, OR $17,685,424 - THE STATUTORY
SALES PRICE.  (AGAIN THERE IS A ONE-DOLLAR DISCREPANCY BECAUSE OF THE
ROUNDING OFF OF ALL FIGURES TO DOLLAR AMOUNTS.) 

FN19  THE AMENDMENT PROVIDED, AS AN ADDITION TO SUBSECTION 9(B) OF
THE ACT: 

"FROM AND AFTER MARCH 8, 1946, THE COST BASIS OF A VESSEL IN RESPECT
OF WHICH THE PRICE ADJUSTMENT IS MADE SHALL BE THE UNDEPRECIATED
ORIGINAL PURCHASE PRICE REDUCED BY THE NET AMOUNT OF SUCH ADJUSTMENT IN
FAVOR OF THE APPLICANT RESULTING FROM THE APPLICATION OF ALL OF THE
FOREGOING PROVISIONS OF THIS SUBSECTION." 

SEE H.R. REP. NO. 1342, 81ST CONG., 1ST SESS., 5; S. REP. NO. 1915,
81ST CONG., 2D SESS., 5. 

FN20  SEE NOTE 14, SUPRA.

                   APPENDIX TO OPINION OF THE COURT. 

U.S.C. APP. SEC. 1742 (1958 ED.), PROVIDES IN RELEVANT PART: 

"SEC. 9.  (A)  A CITIZEN OF THE UNITED STATES WHO ON THE DATE OF THE
ENACTMENT OF THIS ACT: 

(1)  OWNS A VESSEL WHICH HE PURCHASED FROM THE COMMISSION PRIOR TO
SUCH DATE, AND WHICH WAS DELIVERED BY ITS BUILDER AFTER DECEMBER 31,
1940; ...  : 

   *         *         *         *         * 

"SHALL, EXCEPT AS HEREINAFTER PROVIDED, BE ENTITLED TO AN ADJUSTMENT
IN THE PRICE OF SUCH VESSEL UNDER THIS SECTION IF HE MAKES APPLICATION
THEREFOR, IN SUCH FORM AND MANNER AS THE COMMISSION MAY PRESCRIBE,
WITHIN SIXTY DAYS AFTER THE DATE OF PUBLICATION OF THE APPLICABLE
PREWAR DOMESTIC COSTS IN THE FEDERAL REGISTER UNDER SECTION 3(C) OF
THIS ACT  ...  . 

"(B)  SUCH ADJUSTMENT SHALL BE MADE, AS HEREINAFTER PROVIDED, BY
TREATING THE VESSEL AS IF IT WERE BEING SOLD TO THE APPLICANT ON THE
DATE OF THE ENACTMENT OF THIS ACT, AND NOT BEFORE THAT TIME.  THE
AMOUNT OF SUCH ADJUSTMENT SHALL BE DETERMINED AS FOLLOWS: 

"(1)  THE COMMISSION SHALL CREDIT THE APPLICANT WITH THE EXCESS OF
THE CASH PAYMENTS MADE UPON THE ORIGINAL PURCHASE PRICE OF THE VESSEL
OVER 25 PER CENTUM OF THE STATUTORY SALES PRICE OF THE VESSEL AS OF
SUCH DATE OF ENACTMENT.  IF SUCH PAYMENT WAS LESS THAN 25 PER CENTUM OF
THE STATUTORY SALES PRICE OF THE VESSEL, THE APPLICANT SHALL PAY THE
DIFFERENCE TO THE COMMISSION. 

"(2)  THE APPLICANT'S INDEBTEDNESS UNDER ANY MORTGAGE TO THE UNITED
STATES WITH RESPECT TO THE VESSEL SHALL BE ADJUSTED. 

"(3)  THE ADJUSTED MORTGAGE INDEBTEDNESS SHALL BE IN AN AMOUNT EQUAL
TO THE EXCESS OF THE STATUTORY SALES PRICE OF THE VESSEL AS OF THE DATE
OF THE ENACTMENT OF THIS ACT OVER THE SUM OF THE CASH PAYMENT RETAINED
BY THE UNITED STATES UNDER PARAGRAPH (1) PLUS THE READJUSTED TRADE-IN
ALLOWANCE (DETERMINED UNDER PARAGRAPH (7)) WITH RESPECT TO ANY VESSEL
EXCHANGED BY THE APPLICANT ON THE ORIGINAL PURCHASE.  THE ADJUSTED
MORTGAGE INDEBTEDNESS SHALL BE PAYABLE IN EQUAL ANNUAL INSTALLMENTS
THEREAFTER DURING THE REMAINING LIFE OF SUCH MORTGAGE WITH INTEREST ON
THE PORTION OF THE STATUTORY SALES PRICE REMAINING UNPAID AT THE RATE
OF 3 1/2 PER CENTUM PER ANNUM. 

"(4)  THE COMMISSION SHALL CREDIT THE APPLICANT WITH THE EXCESS, IF
ANY, OF THE SUM OF THE CASH PAYMENTS MADE BY THE APPLICANT UPON THE
ORIGINAL PURCHASE PRICE OF THE VESSEL PLUS THE READJUSTED TRADE-IN
ALLOWANCE (DETERMINED UNDER PARAGRAPH (7)) OVER THE STATUTORY SALES
PRICE OF THE VESSEL AS OF THE DATE OF THE ENACTMENT OF THIS ACT TO THE
EXTENT NOT CREDITED UNDER PARAGRAPH (1). 

"(5)  THE COMMISSION SHALL ALSO CREDIT THE APPLICANT WITH AN AMOUNT
EQUAL TO INTEREST AT THE RATE OF 3 1/2 PER CENTUM PER ANNUM (FOR THE
PERIOD BEGINNING WITH THE DATE OF THE ORIGINAL DELIVERY OF THE VESSEL
TO THE APPLICANT AND ENDING WITH THE DATE OF THE ENACTMENT OF THIS ACT)
ON THE EXCESS OF THE ORIGINAL PURCHASE PRICE OF THE VESSEL OVER THE
AMOUNT OF ANY ALLOWANCE ALLOWED BY THE COMMISSION ON THE EXCHANGE OF
ANY VESSEL ON SUCH PURCHASE; THE AMOUNT OF SUCH CREDIT FIRST BEING
REDUCED BY ANY INTEREST ON THE ORIGINAL MORTGAGE INDEBTEDNESS ACCRUED
UP TO SUCH DATE OF ENACTMENT AND UNPAID.  INTEREST SO ACCRUED AND
UNPAID SHALL BE CANCELED. 

"(6)  THE APPLICANT SHALL CREDIT THE COMMISSION WITH ALL AMOUNTS PAID
BY THE UNITED STATES TO HIM AS CHARTER HIRE FOR USE OF THE VESSEL
(EXCLUSIVE OF SERVICE, IF ANY, REQUIRED UNDER THE TERMS OF THE CHARTER)
UNDER ANY CHARTER PARTY MADE PRIOR TO THE DATE OF THE ENACTMENT OF THIS
ACT, AND ANY CHARTER HIRE FOR SUCH USE ACCRUED UP TO SUCH DATE OF
ENACTMENT AND UNPAID SHALL BE CANCELED; AND THE COMMISSION SHALL CREDIT
THE APPLICANT WITH THE AMOUNT THAT WOULD HAVE BEEN PAID BY THE UNITED
STATES TO THE APPLICANT AS CHARTER HIRE FOR BARE-BOAT USE OF VESSELS
EXCHANGED BY THE APPLICANT ON THE ORIGINAL PURCHASE (FOR THE PERIOD
BEGINNING WITH DATE ON WHICH THE VESSELS SO EXCHANGED WERE DELIVERED TO
THE COMMISSION AND ENDING WITH THE DATE OF THE ENACTMENT OF THIS ACT). 

"(7)  THE ALLOWANCE MADE TO THE APPLICANT ON ANY VESSEL EXCHANGED BY
HIM ON THE ORIGINAL PURCHASE SHALL BE READJUSTED SO AS TO LIMIT SUCH
ALLOWANCE TO THE AMOUNT PROVIDED FOR UNDER SECTION 8. 

"(8)  THERE SHALL BE SUBTRACTED FROM THE SUM OF THE CREDITS IN FAVOR
OF THE COMMISSION UNDER THE FOREGOING PROVISIONS OF THIS SUBSECTION THE
AMOUNT OF ANY OVERPAYMENTS OF FEDERAL TAXES BY THE APPLICANT RESULTING
FROM THE APPLICATION OF SUBSECTION (C)(1), AND THERE SHALL BE
SUBTRACTED FROM THE SUM OF THE CREDITS IN FAVOR OF THE APPLICANT UNDER
THE FOREGOING PROVISIONS OF THIS SUBSECTION THE AMOUNT OF ANY
DEFICIENCIES IN FEDERAL TAXES OF THE APPLICANT RESULTING FROM THE
APPLICATION OF SUBSECTION (C)(1).  IF, AFTER MAKING SUCH SUBTRACTIONS,
THE SUM OF THE CREDITS IN FAVOR OF THE APPLICANT EXCEEDS THE SUM OF THE
CREDITS IN FAVOR OF THE COMMISSION, SUCH EXCESS SHALL BE PAID BY THE
COMMISSION TO THE APPLICANT.  IF, AFTER MAKING SUCH SUBTRACTIONS, THE
SUM OF THE CREDITS IN FAVOR OF THE COMMISSION EXCEEDS THE SUM OF THE
CREDITS IN FAVOR OF THE APPLICANT, SUCH EXCESS SHALL BE PAID BY THE
APPLICANT TO THE COMMISSION.  UPON SUCH PAYMENT BY THE COMMISSION OR
THE APPLICANT, SUCH OVERPAYMENTS SHALL BE TREATED AS HAVING BEEN
REFUNDED AND SUCH DEFICIENCIES AS HAVING BEEN PAID. 

"FOR THE PURPOSES OF THIS SUBSECTION, THE PURCHASE PRICE OF A VESSEL
ON ACCOUNT OF WHICH A CONSTRUCTION-DIFFERENTIAL SUBSIDY WAS PAID OR
AGREED TO BE PAID UNDER SECTION 504 OF THE MERCHANT MARINE ACT, 1936,
AS AMENDED, SHALL BE THE NET COST OF THE VESSEL TO THE OWNER. 

"(C)  AN ADJUSTMENT SHALL BE MADE UNDER THIS SECTION ONLY IF THE
APPLICANT ENTERS INTO AN AGREEMENT WITH THE COMMISSION BINDING UPON THE
CITIZEN APPLICANT AND ANY AFFILIATED INTEREST TO THE EFFECT THAT: 

"(1)  DEPRECIATION AND AMORTIZATION ALLOWED OR ALLOWABLE WITH RESPECT
TO THE VESSEL UP TO THE DATE OF THE ENACTMENT OF THIS ACT FOR FEDERAL
TAX PURPOSES SHALL BE TREATED AS NOT HAVING BEEN ALLOWABLE; AMOUNTS
CREDITED TO THE COMMISSION UNDER SUBSECTION (B)(6) SHALL BE TREATED FOR
FEDERAL TAX PURPOSES AS NOT HAVING BEEN RECEIVED OR ACCRUED AS INCOME;
AMOUNTS CREDITED TO THE APPLICANT UNDER SUBSECTION (B)(5) AND (6) SHALL
BE TREATED FOR FEDERAL TAX PURPOSES AS HAVING BEEN RECEIVED AND ACCRUED
AS INCOME IN THE TAXABLE YEAR IN WHICH FALLS THE DATE OF THE ENACTMENT
OF THIS ACT  ...  ." 

("SECRETARY," MEANING SECRETARY OF COMMERCE, WAS SUBSTITUTED FOR
"COMMISSION" IN THE ABOVE STATUTE, EXCEPT WHERE OTHERWISE INDICATED BY
THE CONTEXT, ON AUTHORITY OF 1950 REORG. PLAN NO. 21, EFFECTIVE MAY 24,
1950, 15 FED. REG. 3178, 64 STAT. 1273.) 
..END :
























COMMISSIONER OF INTERNAL REVENUE V. COOPER 381 U.S. 274 


NO. 262.  DECIDED MAY 17, 1965.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW: 330 F.2D 163. 


COMMISSIONER OF INTERNAL REVENUE V. COOPER ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
REVERSED.  PARAGON JEWEL COAL CO. V. COMMISSIONER OF INTERNAL REVENUE,
380 U.S. 624. 

MR. JUSTICE BLACK AND MR. JUSTICE GOLDBERG DISSENT FOR THE REASONS
STATED IN MR. JUSTICE GOLDBERG'S DISSENTING OPINION IN PARAGON JEWEL
COAL CO. V. COMMISSIONER OF INTERNAL REVENUE, 380 U.S., AT 639. 
..END :











ALLEN V. HOFFIUS 381 U.S. 274 


NO. 994, MISC.  DECIDED MAY 17, 1965 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


ALLEN V. HOFFIUS ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















HOWELL V. OHIO 381 U.S. 275 


NO. 789.  DECIDED MAY 17, 1965.  - CERTIORARI GRANTED, JUDGMENT VACATED
AND CASE REMANDED.  - REPORTED BELOW:  177 OHIO ST. 19, 201 N.E.2D
529. 


HOWELL V. OHIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF OHIO FOR
FURTHER CONSIDERATION IN LIGHT OF GRIFFIN V. CALIFORNIA, 380 U.S. 609. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












WATSON V. MISSOURI 381 U.S. 275 


NO. 1031, MISC.  DECIDED MAY 17, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW: 386 S.W.2D 24. 


WATSON V. MISSOURI. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















TURNEY V. ARKANSAS 381 U.S. 276 


NO. 967.  DECIDED MAY 17, 1965.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  237 ARK. 569, 375 S.W.2D 375. 


TURNEY V. ARKANSAS. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MCKINLEY V. REILLY 381 U.S. 276 


NO. 1000.  DECIDED MAY 17, 1965.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  96 ARIZ. 176, 393
P.2D 268. 


MCKINLEY V. REILLY ET AL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















O'CONNELL V. MANNING 381 U.S. 277 


NO. 454.  DECIDED MAY 17, 1965.* - REPORTED BELOW:  329 F.2D 11. 

*TOGETHER WITH NO. 455, AMERICAN AIRLINES, INC. V. MANNING ET AL.,
ALSO ON CERTIORARI TO THE SAME COURT. 


JUDGMENT VACATED AND CASES REMANDED TO DISTRICT COURT WITH DIRECTIONS
TO DISMISS COMPLAINT AS MOOT. 

O'CONNELL ET AL. V. MANNING ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE MOTIONS OF THE PETITIONERS TO VACATE ARE GRANTED.  THE JUDGMENT
OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IS VACATED
AND THE CASES ARE REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK WITH DIRECTIONS TO DISMISS THE COMPLAINT
AS MOOT. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :




KILLGORE V. BLACKWELL, WARDEN 381 U.S. 278 


NO. 363, MISC.  DECIDED MAY 17, 1965.* - CERTIORARI GRANTED, JUDGMENT
REVERSED AND CASE REMANDED.  - REPORTED BELOW:  332 F.2D 585. 

*REPORTER'S NOTE:  THIS OPINION IS REPORTED AS AMENDED ON MAY 24,
1965. 


KILLGORE V. BLACKWELL, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  IN ACCORDANCE WITH THE SUGGESTION
OF THE SOLICITOR GENERAL AND UPON AN EXAMINATION OF THE ENTIRE RECORD
THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA WITH
INSTRUCTIONS TO REINSTATE PETITIONER'S ADULT SENTENCE OF OCTOBER 19,
1962, AND RELEASE HIM IN ACCORDANCE WITH THE TERMS OF THAT SENTENCE. 
..END :








ZEMEL V. RUSK 381 U.S. 1 


NO. 86.  ARGUED MARCH 1, 1965.  - DECIDED MAY 3, 1965.  - 228 F. SUPP.
65, AFFIRMED. 


AFTER THIS COUNTRY HAD BROKEN DIPLOMATIC RELATIONS WITH CUBA AND THE
DEPARTMENT OF STATE HAD ELIMINATED CUBA FROM THE AREA FOR WHICH
PASSPORTS WERE NOT REQUIRED, APPELLANT APPLIED TO HAVE HIS PASSPORT
VALIDATED FOR TRAVEL TO CUBA "TO SATISFY HIS CURIOSITY  ...  AND TO
MAKE HIM A BETTER INFORMED CITIZEN."  HIS REQUEST WAS DENIED, AND HE
FILED SUIT IN FEDERAL DISTRICT COURT SEEKING A JUDGMENT DECLARING THAT
HE WAS ENTITLED UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES TO
TRAVEL TO CUBA AND TO HAVE HIS PASSPORT VALIDATED FOR THAT PURPOSE,
THAT THE SECRETARY OF STATE'S TRAVEL RESTRICTIONS WERE INVALID, AND
THAT THE PASSPORT ACT OF 1926 AND SEC. 215 OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952 WERE UNCONSTITUTIONAL.  IN ADDITION, HE PRAYED
THAT THE SECRETARY AND THE ATTORNEY GENERAL BE ENJOINED FROM
INTERFERING WITH SUCH TRAVEL.  A THREE-JUDGE COURT GRANTED THE
SECRETARY'S MOTION FOR SUMMARY JUDGMENT AND DISMISSED THE ACTION
AGAINST THE ATTORNEY GENERAL.  HELD: 

1.  SINCE THE COMPLAINT LAUNCHED A SUBSTANTIAL CONSTITUTIONAL ATTACK
UPON TWO FEDERAL STATUTES AND PRAYED THAT THEIR OPERATION BE ENJOINED,
THE THREE-JUDGE COURT WAS PROPERLY CONVENED.  PP. 5-7. 

2.  THE PASSPORT ACT OF 1926 GRANTS AUTHORITY TO THE EXECUTIVE TO
REFUSE VALIDATION OF PASSPORTS FOR CUBAN TRAVEL.  PP. 7-13. 

(A)  THE CONSISTENT INTERPRETATION BY THE DEPARTMENT OF STATE OF ITS
AUTHORITY TO IMPOSE AREA RESTRICTIONS, BOTH BEFORE AND AFTER THE 1926
ENACTMENT, MUST BE GIVEN WEIGHT BY THE COURTS IN CONSTRUING THE
STATUTE.  PP. 8-11. 

(B)  IN 1952 CONGRESS ENACTED LEGISLATION RELATING TO PASSPORTS, BUT
DESPITE THE MANY EXECUTIVE IMPOSITIONS OF AREA RESTRICTIONS IT LEFT
UNTOUCHED THE BROAD RULE-MAKING AUTHORITY GRANTED IN THE PASSPORT ACT
OF 1926.  P. 12. 

(C)  THIS CASE, WHERE THE SECRETARY'S REFUSAL IS BASED ON FOREIGN
POLICY CONSIDERATIONS AFFECTING ALL CITIZENS, IT DISTINGUISHED FROM
KENT V. DULLES, 357 U.S. 116, WHERE THE PASSPORT DENIAL WAS BASED ON
THE APPLICANT'S POLITICAL BELIEFS OR ASSOCIATIONS.  PP. 12-13. 

3.  THE RESTRICTION ON TRAVEL TO CUBA DOES NOT ABRIDGE APPELLANT'S
CONSTITUTIONAL RIGHTS.  PP. 13-18. 

(A)  THE FACT THAT A LIBERTY CANNOT BE INHIBITED WITHOUT DUE PROCESS
OF LAW DOES NOT MEAN THAT IT CAN UNDER NO CIRCUMSTANCES BE INHIBITED. 
P. 14. 

(B)  THE RESTRICTION HERE IS JUSTIFIED BY THE WEIGHTIEST
CONSIDERATIONS OF NATIONAL SECURITY.  PP. 14-15. 

(C)  THE FAILURE TO VALIDATE APPELLANT'S PASSPORT RESULTS IN AN
INHIBITION OF ACTION AND NOT A RESTRICTION OF A FIRST AMENDMENT RIGHT. 
THE RIGHT TO SPEAK AND PUBLISH DOES NOT CARRY WITH IT AN UNRESTRAINED
RIGHT TO GATHER INFORMATION.  PP. 16-17. 

(D)  THE PASSPORT ACT OF 1926 CONTAINS SUFFICIENTLY DEFINITE
STANDARDS FOR ACTION, ESPECIALLY SINCE THE AREA IS THAT OF FOREIGN
AFFAIRS WHERE THE EXECUTIVE HAS BROAD AUTHORITY.  P. 17. 

(E)  THE PASSPORT ACT OF 1926 DOES NOT GRANT THE EXECUTIVE COMPLETELY
UNRESTRICTED FREEDOM OF ACTION, AS IT AUTHORIZES ONLY THOSE PASSPORT
RESTRICTIONS WHICH IT COULD FAIRLY BE ARGUED WERE ADOPTED BY CONGRESS
IN LIGHT OF PRIOR ADMINISTRATIVE PRACTICE.  PP. 17-18. 

4.  ADJUDICATION OF THE REACH AND CONSTITUTIONALITY OF SEC. 215(B) OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952 AS APPLIED TO TRAVEL IN
VIOLATION OF AN AREA RESTRICTION MUST AWAIT A CONCRETE FACTUAL
SITUATION.  PP. 18-20. 

ZEMEL V. RUSK, SECRETARY OF STATE, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS FOR DECISION ARE WHETHER THE SECRETARY OF STATE IS
STATUTORILY AUTHORIZED TO REFUSE TO VALIDATE THE PASSPORTS OF UNITED
STATES CITIZENS FOR TRAVEL TO CUBA, AND, IF HE IS, WHETHER THE EXERCISE
OF THAT AUTHORITY IS CONSTITUTIONALLY PERMISSIBLE.  WE ANSWER BOTH
QUESTIONS IN THE AFFIRMATIVE. 

PRIOR TO 1961 NO PASSPORT WAS REQUIRED FOR TRAVEL ANYWHERE IN THE
WESTERN HEMISPHERE.  ON JANUARY 3 OF THAT YEAR, THE UNITED STATES BROKE
DIPLOMATIC AND CONSULAR RELATIONS WITH CUBA.  ON JANUARY 16 THE
DEPARTMENT OF STATE ELIMINATED CUBA FROM THE AREA FOR WHICH PASSPORTS
WERE NOT REQUIRED, AND DECLARED ALL OUTSTANDING UNITED STATES PASSPORTS
(EXCEPT THOSE HELD BY PERSONS ALREADY IN CUBA) TO BE INVALID FOR TRAVEL
TO OR IN CUBA "UNLESS SPECIFICALLY ENDORSED FOR SUCH TRAVEL UNDER THE
AUTHORITY OF THE SECRETARY OF STATE."  A COMPANION PRESS RELEASE STATED
THAT THE DEPARTMENT CONTEMPLATED GRANTING EXCEPTIONS TO "PERSONS WHOSE
TRAVEL MAY BE REGARDED AS BEING IN THE BEST INTERESTS OF THE UNITED
STATES, SUCH AS NEWSMEN OR BUSINESSMEN WITH PREVIOUSLY ESTABLISHED
BUSINESS INTERESTS." 

THROUGH AN EXCHANGE OF LETTERS IN EARLY 1962, APPELLANT, A CITIZEN OF
THE UNITED STATES AND HOLDER OF AN OTHERWISE VALID PASSPORT, APPLIED TO
THE STATE DEPARTMENT TO HAVE HIS PASSPORT VALIDATED FOR TRAVEL TO CUBA
AS A TOURIST.  HIS REQUEST WAS DENIED.  ON OCTOBER 30, 1962, HE RENEWED
THE REQUEST, STATING THAT THE PURPOSE OF THE PROPOSED TRIP WAS "TO
SATISFY MY CURIOSITY ABOUT THE STATE OF AFFAIRS IN CUBA AND TO MAKE ME
A BETTER INFORMED CITIZEN."  THE REQUEST AGAIN WAS DENIED, ON THE
GROUND THAT THE PURPOSE OF THE TRIP DID NOT MEET THE PREVIOUSLY
PRESCRIBED STANDARDS FOR SUCH TRAVEL. 

ON DECEMBER 7, 1962, APPELLANT INSTITUTED THIS SUIT AGAINST THE
SECRETARY OF STATE AND THE ATTORNEY GENERAL IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT, SEEKING A JUDGMENT
DECLARING:  (1) THAT HE WAS ENTITLED UNDER THE CONSTITUTION AND LAWS OF
THE UNITED STATES TO TRAVEL TO CUBA AND TO HAVE HIS PASSPORT VALIDATED
FOR THAT PURPOSE; (2) THAT HIS TRAVEL TO CUBA AND THE USE OF HIS
PASSPORT FOR THAT PURPOSE WOULD NOT VIOLATE ANY STATUTE, REGULATION, OR
PASSPORT RESTRICTION; (3) THAT THE SECRETARY'S RESTRICTIONS UPON TRAVEL
TO CUBA WERE INVALID; (4) THAT THE PASSPORT ACT OF 1926 AND SEC. 215 OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952 WERE UNCONSTITUTIONAL; (5)
THAT THE SECRETARY'S REFUSAL TO GRANT HIM A PASSPORT VALID FOR CUBA
VIOLATED RIGHTS GUARANTEED HIM BY THE CONSTITUTION AND THE UNITED
NATIONS DECLARATION OF HUMAN RIGHTS; AND (6) THAT DENIAL OF THE
PASSPORT ENDORSEMENT WITHOUT A FORMAL HEARING VIOLATED HIS RIGHTS UNDER
THE FIFTH AMENDMENT.  (FN1)  THE COMPLAINT ALSO REQUESTED THAT THE
SECRETARY BE DIRECTED TO VALIDATE APPELLANT'S PASSPORT FOR TRAVEL TO
CUBA AND THAT THE SECRETARY AND THE ATTORNEY GENERAL BE ENJOINED FROM
INTERFERING WITH SUCH TRAVEL.  IN HIS AMENDED COMPLAINT, APPELLANT
ADDED TO HIS CONSTITUTIONAL ATTACK ON THE 1926 AND 1952 ACTS A PRAYER
THAT THE SECRETARY AND THE ATTORNEY GENERAL BE ENJOINED FROM ENFORCING
THEM. 

ON APPELLANT'S MOTION, AND OVER THE OBJECTION OF APPELLEES, A THREE
JUDGE COURT WAS CONVENED.  ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, THE
COURT, BY A DIVIDED VOTE, GRANTED THE SECRETARY OF STATE'S MOTION FOR
SUMMARY JUDGMENT AND DISMISSED THE ACTION AGAINST THE ATTORNEY GENERAL,
228 F. SUPP. 65 (D.C.D. CONN. 1964).  WE POSTPONED CONSIDERATION OF THE
JURISDICTIONAL QUESTION TO THE HEARING OF THE CASE ON THE MERITS, 379
U.S. 809. 

                           I. 

A DIRECT APPEAL TO THIS COURT FROM A DISTRICT COURT LIES UNDER 28
U.S.C. SEC. 1253 (1958 ED.)  ONLY "FROM AN ORDER GRANTING OR DENYING
...  AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION, SUIT
OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES."  THUS WE MUST DEAL
FIRST WITH THE GOVERNMENT'S CONTENTION THAT A THREE-JUDGE COURT WAS
IMPROPERLY CONVENED, FOR IF THE CONTENTION IS CORRECT, THIS COURT LACKS
JURISDICTION OVER THE APPEAL.  PHILLIPS V. UNITED STATES, 312 U.S. 246,
248. 

THREE-JUDGE COURT IN ANY CASE WHERE THE RELIEF SOUGHT IS "AN
INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE ENFORCEMENT,
OPERATION OR EXECUTION OF ANY ACT OF CONGRESS FOR REPUGNANCE TO THE
CONSTITUTION OF THE UNITED STATES  ...  ."  ON ITS FACE, APPELLANT'S
AMENDED COMPLAINT, BY CALLING UPON THE COURT BELOW TO ENJOIN THE
ENFORCEMENT OF THE PASSPORT ACT OF 1926 AND SEC. 215 OF THE IMMIGRATION
AND NATIONALITY ACT OF 1952, ON THE GROUND THAT THOSE STATUTES ARE
UNCONSTITUTIONAL, MEETS THE REQUIREMENTS OF SEC. 2282.  THE SOLICITOR
GENERAL NOTES THAT APPELLANT WOULD BE ACCORDED FULL RELIEF BY THE
VOIDING OF THE SECRETARY'S ORDER.  IT IS TRUE THAT APPELLANT'S ARGUMENT
- THAT EITHER THE SECRETARY'S ORDER IS NOT SUPPORTED BY THE AUTHORITY
GRANTED HIM BY CONGRESS, OR THE STATUTES GRANTING THAT AUTHORITY ARE
UNCONSTITUTIONAL - IS TWO-PRONGED.  BUT WE HAVE OFTEN HELD THAT A
LITIGANT NEED NOT ABANDON HIS NONCONSTITUTIONAL ARGUMENTS IN ORDER TO
OBTAIN A THREE-JUDGE COURT: "THE JOINING IN THE COMPLAINT OF A
NONCONSTITUTIONAL ATTACK ALONG WITH THE CONSTITUTIONAL ONE DOES NOT
DISPENSE WITH THE NECESSITY TO CONVENE SUCH A COURT."  (FN2) 

THE SOLICITOR GENERAL, APPARENTLY CONCEDING - AS ALL THREE JUDGES
BELOW AGREED - THAT APPELLANT'S FIFTH AMENDMENT ATTACK IS SUBSTANTIAL,
CF. KENT V. DULLES, 357 U.S. 116, 125; APTHEKER V. SECRETARY OF STATE,
378 U.S. 500, 505-506, ARGUES THAT IT IS IN REALITY AN ATTACK UPON AN
ADMINISTRATIVE, AS OPPOSED TO A LEGISLATIVE, POLICY, AND THEREFORE,
UNDER CASES LIKE PHILLIPS V. UNITED STATES, 312 U.S. 246, AND EX PARTE
BRANSFORD, 310 U.S. 354, A THREE-JUDGE COURT NEED NOT HAVE BEEN
CONVENED.  WE NEED NOT EVALUATE THIS CONTENTION, FOR APPELLANT'S
COMPLAINT ALSO ATTACKS THE 1926 AND 1952 ACTS ON THE GROUND THAT "THEY
CONTAIN NO STANDARDS AND ARE THEREFORE AN INVALID DELEGATION OF
LEGISLATIVE POWER."  THIS ALLEGATION CANNOT BE BRUSHED ASIDE AS AN
ATTACK UPON THE ACTIONS OF THE SECRETARY; IN ARGUING INVALID
DELEGATION, APPELLANT HAS QUITE CLEARLY ASSAILED THE STATUTES
THEMSELVES.  THE SOLICITOR GENERAL THEREFORE MEETS THE DELEGATION
ARGUMENT ON ANOTHER GROUND:  BY LABELING IT "FRIVOLOUS."  ALTHOUGH WE
DO NOT ACCEPT APPELLANT'S DELEGATION ARGUMENT, INFRA, PP.  17-18, WE
CANNOT AGREE THAT IT IS SO INSUBSTANTIAL AS TO COMPEL A DISTRICT COURT
TO READ IT OUT OF THE COMPLAINT AND REFUSE TO CONVENE A THREE-JUDGE
COURT.  COMPARE WILLIAM JAMESON & CO. V. MORGENTHAU, 307 U.S. 171;
SCHNEIDER V. RUSK, 372 U.S. 224.  INDEED, WE EXPLICITLY NOTED IN KENT
V. DULLES, SUPRA, AT 129, THAT IF WE HAD HELD THAT THE SECRETARY'S
REFUSAL TO ISSUE A PASSPORT TO PETITIONER IN THAT CASE WAS SUPPORTED BY
THE 1926 AND 1952 ACTS, WE WOULD THEN HAVE BEEN OBLIGED TO CONSIDER
WHETHER THOSE ACTS WERE VOID FOR INVALID DELEGATION.  (FN3) 

THE COMPLAINT THEREFORE LAUNCHES A SUBSTANTIAL CONSTITUTIONAL ATTACK
UPON TWO FEDERAL STATUTES, AND PRAYS THAT THEIR OPERATION BE ENJOINED. 
CF. IDLEWILD LIQUOR CORP. V. EPSTEIN, 370 U.S. 713, 715.  WE HOLD THAT
THE THREE-JUDGE COURT WAS PROPERLY CONVENED, AND THAT WE THEREFORE HAVE
JURISDICTION OVER THE APPEAL.  (FN4)

                  II. 

WE THINK THAT THE PASSPORT ACT OF 1926, 44 STAT. 887, 22 U.S.C. SEC.
211A (1958 ED.), EMBODIES A GRANT OF AUTHORITY TO THE EXECUTIVE TO
REFUSE TO VALIDATE THE PASSPORTS OF UNITED STATES CITIZENS FOR TRAVEL
TO CUBA.  THAT ACT PROVIDES, IN PERTINENT PART: 

"THE SECRETARY OF STATE MAY GRANT AND ISSUE PASSPORTS  ...  UNDER
SUCH RULES AS THE PRESIDENT SHALL DESIGNATE AND PRESCRIBE FOR AND ON
BEHALF OF THE UNITED STATES  ...  ."  (FN5) 

THIS PROVISION IS DERIVED FROM SEC. 23 OF THE ACT OF AUGUST 18, 1856,
11 STAT. 52, 60-61, WHICH HAD, PRIOR TO 1926, BEEN RE-ENACTED SEVERAL
TIMES WITHOUT SUBSTANTIAL CHANGE.  THE LEGISLATIVE HISTORY OF THE 1926
ACT AND ITS PREDECESSORS DOES NOT, IT IS TRUE, AFFIRMATIVELY INDICATE
AN INTENTION TO AUTHORIZE AREA RESTRICTIONS.  HOWEVER, ITS LANGUAGE IS
SURELY BROAD ENOUGH TO AUTHORIZE AREA RESTRICTIONS, AND THERE IS NO
LEGISLATIVE HISTORY INDICATING AN INTENT TO EXCLUDE SUCH RESTRICTIONS
FROM THE GRANT OF AUTHORITY; THESE FACTORS TAKE ON ADDED SIGNIFICANCE
WHEN VIEWED IN LIGHT OF THE FACT THAT DURING THE DECADE PRECEDING THE
PASSAGE OF THE ACT, THE EXECUTIVE HAD IMPOSED BOTH PEACETIME AND
WARTIME AREA RESTRICTIONS.  AS A RESULT OF A FAMINE IN BELGIUM IN 1915,
THE STATE DEPARTMENT STOPPED ISSUING PASSPORTS FOR USE IN THAT COUNTRY
EXCEPT TO "APPLICANTS OBLIGED TO GO THITHER BY SPECIAL EXIGENCY OR
AUTHORIZED BY RED CROSS OR BELGIAN RELIEF COMMISSION."  III HACKWORTH,
DIGEST OF INTERNATIONAL LAW, P. 526 (1942).  BEGINNING DECEMBER 9,
1914, AND CONTINUING THROUGH WORLD WAR I, PASSPORTS WERE VALIDATED ONLY
FOR SPECIFIC PURPOSES AND SPECIFIC COUNTRIES.  NO PASSPORTS WERE ISSUED
FOR TRAVEL IN GERMANY AND AUSTRIA UNTIL JULY 18, 1922, AND NONE FOR THE
SOVIET UNION UNTIL APPROXIMATELY SEPTEMBER 1923.  HEARINGS BEFORE THE
SENATE COMMITTEE ON FOREIGN RELATIONS ON DEPARTMENT OF STATE PASSPORT
POLICIES, 85TH CONG., 1ST SESS., PP. 63-64.  THE USE IN THE 1926 ACT OF
LANGUAGE BROAD ENOUGH TO PERMIT EXECUTIVE IMPOSITION OF AREA
RESTRICTIONS, AFTER THE EXECUTIVE HAD SEVERAL TIMES IN THE RECENT PAST
OPENLY ASSERTED THE POWER TO IMPOSE SUCH RESTRICTIONS UNDER PREDECESSOR
STATUTES CONTAINING SUBSTANTIALLY THE SAME LANGUAGE, SUPPORTS THE
CONCLUSION THAT CONGRESS INTENDED IN 1926 TO MAINTAIN IN THE EXECUTIVE
THE AUTHORITY TO MAKE SUCH RESTRICTIONS.  (FN6) 

THIS CONSTRUCTION OF THE ACT IS REINFORCED BY THE STATE DEPARTMENT'S
CONTINUED IMPOSITION OF AREA RESTRICTIONS DURING BOTH TIMES OF WAR AND
PERIODS OF PEACE SINCE 1926.  FOR A PERIOD OF ABOUT SEVEN MONTHS
FOLLOWING THE OUTBREAK OF WAR BETWEEN ITALY AND ETHIOPIA IN 1935, THE
DEPARTMENT DECLINED TO ISSUE PASSPORTS FOR TRAVEL IN ETHIOPIA, EXCEPT
TO JOURNALISTS, RED CROSS REPRESENTATIVES, AND OTHERS ABLE TO SHOW A
"COMPELLING EXIGENCY" NECESSITATING SUCH TRAVEL.  IN CASES WHERE
PERSONS DID NOT INCLUDE ETHIOPIA IN THEIR APPLICATIONS, BUT WERE - BY
REASON OF THE MENTION IN THEIR APPLICATIONS OF ADJACENT COUNTRIES -
SUSPECTED OF INTENDING TO TRAVEL THEREIN, THEIR PASSPORTS WERE STAMPED
"NOT VALID FOR USE IN ETHIOPIA."  III HACKWORTH, SUPRA, PP. 531-532. 
FOLLOWING THE OUTBREAK OF THE SPANISH CIVIL WAR IN 1936, PASSPORTS WERE
STAMPED "NOT VALID FOR TRAVEL IN SPAIN," WITH EXCEPTIONS FOR
NEWSPAPERMEN AND PERSONS FURNISHING MEDICAL ASSISTANCE.  ID., AT 533
534.  A SIMILAR RESTRICTION WAS PLACED ON TRAVEL TO CHINA IN AUGUST
1937, IN VIEW OF "THE DISTURBED SITUATION IN THE FAR EAST."  PASSPORTS
WERE VALIDATED FOR TRAVEL TO CHINA ONLY "IN EXCEPTIONAL CIRCUMSTANCES,"
AND IN NO CASE FOR WOMEN OR CHILDREN.  ID., AT 532-533. 

ON MARCH 31, 1938, THE PRESIDENT, PURPORTING TO ACT PURSUANT TO THE
1926 ACT, SPECIFICALLY AUTHORIZED THE SECRETARY TO IMPOSE AREA
RESTRICTIONS IN THE ISSUANCE OF PASSPORTS, EXEC. ORDER NO. 7856, 3 FED.
REG. 681, 687: 

"THE SECRETARY OF STATE IS AUTHORIZED IN HIS DISCRETION TO REFUSE TO
ISSUE A PASSPORT, TO RESTRICT A PASSPORT FOR USE ONLY IN CERTAIN
COUNTRIES, TO RESTRICT IT AGAINST USE IN CERTAIN COUNTRIES, TO WITHDRAW
OR CANCEL A PASSPORT ALREADY ISSUED, AND TO WITHDRAW A PASSPORT FOR THE
PURPOSE OF RESTRICTING ITS VALIDITY OR USE IN CERTAIN COUNTRIES." 

THIS EXECUTIVE ORDER IS STILL IN FORCE.  22 CFR SEC. 51.75.  IN
SEPTEMBER 1939, TRAVEL TO EUROPE WAS PROHIBITED EXCEPT WITH A PASSPORT
SPECIALLY VALIDATED FOR SUCH TRAVEL; PASSPORTS WERE SO VALIDATED ONLY
UPON A SHOWING OF THE "IMPERATIVENESS" OF TRAVEL.  DEPARTMENTAL ORDER
NO. 811, 4 FED. REG. 3892. 

AREA RESTRICTIONS HAVE ALSO BEEN IMPOSED ON NUMEROUS OCCASIONS SINCE
WORLD WAR II.  TRAVEL TO YUGOSLAVIA WAS RESTRICTED IN THE LATE 1940'S
AS A RESULT OF A SERIES OF INCIDENTS INVOLVING AMERICAN CITIZENS. 
DEPT. STATE PRESS CONF., MAY 9, 1947.  TRAVEL TO HUNGARY WAS RESTRICTED
BETWEEN DECEMBER 1949 AND MAY 1951, AND AFTER DECEMBER 1951.  (FN7) IN
JUNE 1951, THE STATE DEPARTMENT BEGAN TO STAMP PASSPORTS "NOT VALID FOR
TRAVEL IN CZECHOSLOVAKIA," AND DECLARED THAT ALL PASSPORTS OUTSTANDING
AT THAT TIME WERE NOT VALID FOR SUCH TRAVEL.  24 DEPT. STATE BULL. 
932.  IN MAY 1952, THE DEPARTMENT ISSUED A GENERAL ORDER THAT ALL NEW
PASSPORTS WOULD BE STAMPED NOT VALID FOR TRAVEL TO ALBANIA, BULGARIA,
COMMUNIST CHINA, CZECHOSLOVAKIA, HUNGARY, POLAND, RUMANIA AND THE
SOVIET UNION.  26 ID., AT 736.  IN OCTOBER 1955, THE SECRETARY
ANNOUNCED THAT PASSPORTS WOULD NO LONGER REQUIRE SPECIAL VALIDATION FOR
TRAVEL TO CZECHOSLOVAKIA, HUNGARY, POLAND, RUMANIA AND THE SOVIET
UNION, BUT WOULD BE STAMPED INVALID FOR TRAVEL "TO THE FOLLOWING AREAS
UNDER CONTROL OF AUTHORITIES WITH WHICH THE UNITED STATES DOES NOT HAVE
DIPLOMATIC RELATIONS:  ALBANIA, BULGARIA, AND THOSE PORTIONS OF CHINA,
KOREA AND VIET-NAM UNDER COMMUNIST CONTROL."  33 ID., AT 777.  IN
FEBRUARY 1956, THE RESTRICTION ON TRAVEL TO HUNGARY WAS REIMPOSED.  34
ID., AT 246-248.  AND IN LATE 1956, PASSPORTS WERE FOR A BRIEF PERIOD
STAMPED INVALID FOR TRAVEL TO OR IN EGYPT, ISRAEL, JORDAN AND SYRIA. 
35 ID., AT 756.    EVEN IF THERE HAD BEEN NO PASSPORT LEGISLATION
ENACTED SINCE THE 1926 ACT, THE POST-1926 HISTORY OF EXECUTIVE
IMPOSITION OF AREA RESTRICTIONS, AS WELL AS THE PRE-1926 HISTORY, WOULD
BE OF RELEVANCE TO OUR CONSTRUCTION OF THE ACT.  THE INTERPRETATION
EXPRESSLY PLACED ON A STATUTE BY THOSE CHARGED WITH ITS ADMINISTRATION
MUST BE GIVEN WEIGHT BY COURTS FACED WITH THE TASK OF CONSTRUING THE
STATUTE.  UDALL V. TALLMAN, 380 U.S. 1, 16-18; NORWEGIAN NITROGEN CO.
V. UNITED STATES, 288 U.S. 294, 315.  UNDER SOME CIRCUMSTANCES,
CONGRESS' FAILURE TO REPEAL OR REVISE IN THE FACE OF SUCH
ADMINISTRATIVE INTERPRETATION HAS BEEN HELD TO CONSTITUTE PERSUASIVE
EVIDENCE THAT THAT INTERPRETATION IS THE ONE INTENDED BY CONGRESS. 
(FN8)  IN THIS CASE, HOWEVER, THE INFERENCE IS SUPPORTED BY MORE THAN
MERE CONGRESSIONAL INACTION.  FOR IN 1952 CONGRESS, SUBSTANTIALLY RE
ENACTING LAWS WHICH HAD BEEN PASSED DURING THE FIRST AND SECOND WORLD
WARS, (FN9) PROVIDED THAT AFTER THE ISSUANCE OF A PRESIDENTIAL
PROCLAMATION OF WAR OR NATIONAL EMERGENCY, IT WOULD BE UNLAWFUL TO
LEAVE OR ENTER THE UNITED STATES WITHOUT A VALID PASSPORT.  SECTION 215
OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 190, 8 U.S.C.
SEC. 1185 (1958 ED.).  THE SOLICITOR GENERAL URGES THAT IN VIEW OF THE
ISSUANCE IN 1953 OF A PRESIDENTIAL PROCLAMATION OF NATIONAL EMERGENCY
WHICH IS STILL OUTSTANDING, (FN10) TRAVEL IN VIOLATION OF AN AREA
RESTRICTION IMPOSED ON AN OTHERWISE VALID PASSPORT IS UNLAWFUL UNDER
THE 1952 ACT.  THE CORRECTNESS OF THIS INTERPRETATION IS A QUESTION WE
DO NOT REACH ON THIS APPEAL, SEE INFRA, PP. 18-20.  BUT WHETHER OR NOT
THE NEW LEGISLATION WAS INTENDED TO ATTACH CRIMINAL PENALTIES TO THE
VIOLATION OF AREA RESTRICTIONS, IT CERTAINLY WAS NOT MEANT TO CUT BACK
UPON THE POWER TO IMPOSE SUCH RESTRICTIONS.  DESPITE 26 YEARS OF
EXECUTIVE INTERPRETATION OF THE 1926 ACT AS AUTHORIZING THE IMPOSITION
OF AREA RESTRICTIONS, CONGRESS IN 1952, THOUGH IT ONCE AGAIN ENACTED
LEGISLATION RELATING TO PASSPORTS, LEFT COMPLETELY UNTOUCHED THE BROAD
RULE-MAKING AUTHORITY GRANTED IN THE EARLIER ACT.  CF. NORWEGIAN
NITROGEN CO. V. UNITED STATES, SUPRA, AT 313.  (FN11) 

THIS CASE IS THEREFORE NOT LIKE KENT V. DULLES, SUPRA, WHERE WE WERE
UNABLE TO FIND, WITH REGARD TO THE SORT OF PASSPORT REFUSAL INVOLVED
THERE, AN ADMINISTRATIVE PRACTICE SUFFICIENTLY SUBSTANTIAL AND
CONSISTENT TO WARRANT THE CONCLUSION THAT CONGRESS HAD IMPLICITLY
APPROVED IT.  APPELLANT REMINDS US THAT IN SUMMARIZING THE SECRETARY'S
PRACTICE IN KENT, WE OBSERVED: 

"SO FAR AS MATERIAL HERE, THE CASES OF REFUSAL OF PASSPORTS GENERALLY
FELL INTO TWO CATEGORIES.  FIRST, QUESTIONS PERTINENT TO THE
CITIZENSHIP OF THE APPLICANT AND HIS ALLEGIANCE TO THE UNITED STATES
HAD TO BE RESOLVED BY THE SECRETARY  ...  .  SECOND, WAS THE QUESTION
WHETHER THE APPLICANT WAS PARTICIPATING IN ILLEGAL CONDUCT, TRYING TO
ESCAPE THE TOILS OF THE LAW, PROMOTING PASSPORT FRAUDS, OR OTHERWISE
ENGAGING IN CONDUCT WHICH WOULD VIOLATE THE LAWS OF THE UNITED
STATES."  357 U.S., AT 127. 

IT MUST BE REMEMBERED, IN READING THIS PASSAGE, THAT THE ISSUE
INVOLVED IN KENT WAS WHETHER A CITIZEN COULD BE DENIED A PASSPORT
BECAUSE OF HIS POLITICAL BELIEFS OR ASSOCIATIONS.  IN FINDING THAT
HISTORY DID NOT SUPPORT THE POSITION OF THE SECRETARY IN THAT CASE, WE
SUMMARIZED THAT HISTORY "SO FAR AS MATERIAL HERE" - THAT IS, SO FAR AS
MATERIAL TO PASSPORT REFUSALS BASED ON THE CHARACTER OF THE PARTICULAR
APPLICANT.  IN THIS CASE, HOWEVER, THE SECRETARY HAS REFUSED TO
VALIDATE APPELLANT'S PASSPORT NOT BECAUSE OF ANY CHARACTERISTIC
PECULIAR TO APPELLANT, BUT RATHER BECAUSE OF FOREIGN POLICY
CONSIDERATIONS AFFECTING ALL CITIZENS. 

III. 

HAVING CONCLUDED THAT THE SECRETARY OF STATE'S REFUSAL TO VALIDATE
APPELLANT'S PASSPORT FOR TRAVEL TO CUBA IS SUPPORTED BY THE AUTHORITY
GRANTED BY CONGRESS IN THE PASSPORT ACT OF 1926, WE MUST NEXT CONSIDER
WHETHER THAT REFUSAL ABRIDGES ANY CONSTITUTIONAL RIGHT OF APPELLANT. 
ALTHOUGH WE DO NOT IN THIS CASE REACH THE QUESTION OF WHETHER THE 1952
ACT SHOULD BE READ TO ATTACH CRIMINAL PENALTIES TO TRAVEL TO AN AREA
FOR WHICH ONE'S PASSPORT IS NOT VALIDATED, WE MUST, IF WE ARE TO
APPROACH THE CONSTITUTIONAL ISSUES PRESENTED BY THIS APPEAL CANDIDLY,
PROCEED ON THE ASSUMPTION THAT THE SECRETARY'S REFUSAL TO VALIDATE A
PASSPORT FOR A GIVEN AREA ACTS AS A DETERRENT TO TRAVEL TO THAT AREA. 
IN KENT V. DULLES, SUPRA, AT 125, WE HELD THAT "THE RIGHT TO TRAVEL IS
A PART OF THE 'LIBERTY' OF WHICH THE CITIZEN CANNOT BE DEPRIVED WITHOUT
DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT."  SEE ALSO APTHEKER V.
SECRETARY OF STATE, SUPRA, AT 505-506.  HOWEVER, THE FACT THAT A
LIBERTY CANNOT BE INHIBITED WITHOUT DUE PROCESS OF LAW DOES NOT MEAN
THAT IT CAN UNDER NO CIRCUMSTANCES BE INHIBITED.  (FN12) 

THE REQUIREMENTS OF DUE PROCESS ARE A FUNCTION NOT ONLY OF THE EXTENT
OF THE GOVERNMENTAL RESTRICTION IMPOSED, (FN13) BUT ALSO OF THE EXTENT
OF THE NECESSITY FOR THE RESTRICTION.  CUBA IS THE ONLY AREA IN THE
WESTERN HEMISPHERE CONTROLLED BY A COMMUNIST GOVERNMENT.  IT IS,
MOREOVER, THE JUDGMENT OF THE STATE DEPARTMENT THAT A MAJOR GOAL OF THE
CASTRO REGIME IS TO EXPORT ITS COMMUNIST REVOLUTION TO THE REST OF
LATIN AMERICA.  (FN14)  THE UNITED STATES AND OTHER MEMBERS OF THE
ORGANIZATION OF AMERICAN STATES HAVE DETERMINED THAT TRAVEL BETWEEN
CUBA AND THE OTHER COUNTRIES OF THE WESTERN HEMISPHERE IS AN IMPORTANT
ELEMENT IN THE SPREADING OF SUBVERISON, AND MANY HAVE THEREFORE
UNDERTAKEN MEASURES TO DISCOURAGE SUCH TRAVEL.  (FN15)  IT ALSO CANNOT
BE FORGOTTEN THAT IN THE EARLY DAYS OF THE CASTRO REGIME, UNITED STATES
CITIZENS WERE ARRESTED AND IMPRISONED WITHOUT CHARGES.  WE THINK,
PARTICULARLY IN VIEW OF THE PRESIDENT'S STATUTORY OBLIGATION TO "USE
SUCH MEANS, NOT AMOUNTING TO ACTS OF WAR, AS HE MAY THINK NECESSARY AND
PROPER" TO SECURE THE RELEASE OF AN AMERICAN CITIZEN UNJUSTLY DEPRIVED
OF HIS LIBERTY BY A FOREIGN GOVERNMENT, (FN16) THAT THE SECRETARY HAS
JUSTIFIABLY CONCLUDED THAT TRAVEL TO CUBA BY AMERICAN CITIZENS MIGHT
INVOLVE THE NATION IN DANGEROUS INTERNATIONAL INCIDENTS, AND THAT THE
CONSTITUTION DOES NOT REQUIRE HIM TO VALIDATE PASSPORTS FOR SUCH
TRAVEL. 

THE RIGHT TO TRAVEL WITHIN THE UNITED STATES IS OF COURSE ALSO
CONSTITUTIONALLY PROTECTED, CF. EDWARDS V. CALIFORNIA, 314 U.S. 160. 
BUT THAT FREEDOM DOES NOT MEAN THAT AREAS RAVAGED BY FLOOD, FIRE OR
PESTILENCE CANNOT BE QUARANTINED WHEN IT CAN BE DEMONSTRATED THAT
UNLIMITED TRAVEL TO THE AREA WOULD DIRECTLY AND MATERIALLY INTERFERE
WITH THE SAFETY AND WELFARE OF THE AREA OR THE NATION AS A WHOLE.  SO
IT IS WITH INTERNATIONAL TRAVEL.  THAT THE RESTRICTION WHICH IS
CHALLENGED IN THIS CASE IS SUPPORTED BY THE WEIGHTIEST CONSIDERATIONS
OF NATIONAL SECURITY IS PERHAPS BEST POINTED UP BY RECALLING THAT THE
CUBAN MISSILE CRISIS OF OCTOBER 1962 PRECEDED THE FILING OF APPELLANT'S
COMPLAINT BY LESS THAN TWO MONTHS. 

APPELLANT ALSO ASSERTS THAT THE SECRETARY'S REFUSAL TO VALIDATE HIS
PASSPORT FOR TRAVEL TO CUBA DENIES HIM RIGHTS GUARANTEED BY THE FIRST
AMENDMENT.  HIS CLAIM IS DIFFERENT FROM THAT WHICH WAS RAISED IN KENT
V. DULLES, SUPRA, AND APTHEKER V. SECRETARY OF STATE, SUPRA, FOR THE
REFUSAL TO VALIDATE APPELLANT'S PASSPORT DOES NOT RESULT FROM ANY
EXPRESSION OR ASSOCIATION ON HIS PART; APPELLANT IS NOT BEING FORCED TO
CHOOSE BETWEEN MEMBERSHIP IN AN ORGANIZATION AND FREEDOM TO TRAVEL. 
APPELLANT'S ALLEGATION IS, RATHER, THAT THE "TRAVEL BAN IS A DIRECT
INTERFERENCE WITH THE FIRST AMENDMENT RIGHTS OF CITIZENS TO TRAVEL
ABROAD SO THAT THEY MIGHT ACQUAINT THEMSELVES AT FIRST HAND WITH THE
EFFECTS ABROAD OF OUR GOVERNMENT'S POLICIES, FOREIGN AND DOMESTIC, AND
WITH CONDITIONS ABROAD WHICH MIGHT AFFECT SUCH POLICIES."  WE MUST
AGREE THAT THE SECRETARY'S REFUSAL TO VALIDATE PASSPORTS FOR CUBA
RENDERS LESS THAN WHOLLY FREE THE FLOW OF INFORMATION CONCERNING THAT
COUNTRY.  WHILE WE FURTHER AGREE THAT THIS IS A FACTOR TO BE CONSIDERED
IN DETERMINING WHETHER APPELLANT HAS BEEN DENIED DUE PROCESS OF LAW,
(FN17) WE CANNOT ACCEPT THE CONTENTION OF APPELLANT THAT IT IS A FIRST
AMENDMENT RIGHT WHICH IS INVOLVED.  FOR TO THE EXTENT THAT THE
SECRETARY'S REFUSAL TO VALIDATE PASSPORTS FOR CUBA ACTS AS AN
INHIBITION (AND IT WOULD BE UNREALISTIC TO ASSUME THAT IT DOES NOT), IT
IS AN INHIBITION OF ACTION.  THERE ARE FEW RESTRICTIONS ON ACTION WHICH
COULD NOT BE CLOTHED BY INGENIOUS ARGUMENT IN THE GARB OF DECREASED
DATA FLOW.  FOR EXAMPLE, THE PROHIBITION OF UNAUTHORIZED ENTRY INTO THE
WHITE HOUSE DIMINISHES THE CITIZEN'S OPPORTUNITIES TO GATHER
INFORMATION HE MIGHT FIND RELEVANT TO HIS OPINION OF THE WAY THE
COUNTRY IS BEING RUN, BUT THAT DOES NOT MAKE ENTRY INTO THE WHITE HOUSE
A FIRST AMENDMENT RIGHT.  THE RIGHT TO SPEAK AND PUBLISH DOES NOT CARRY
WITH IT THE UNRESTRAINED RIGHT TO GATHER INFORMATION. 

FINALLY, APPELLANT CHALLENGES THE 1926 ACT ON THE GROUND THAT IT DOES
NOT CONTAIN SUFFICIENTLY DEFINITE STANDARDS FOR THE FORMULATION OF
TRAVEL CONTROLS BY THE EXECUTIVE.  IT IS IMPORTANT TO BEAR IN MIND, IN
APPRAISING THIS ARGUMENT, THAT BECAUSE OF THE CHANGEABLE AND EXPLOSIVE
NATURE OF CONTEMPORARY INTERNATIONAL RELATIONS, AND THE FACT THAT THE
EXECUTIVE IS IMMEDIATELY PRIVY TO INFORMATION WHICH CANNOT BE SWIFTLY
PRESENTED TO, EVALUATED BY, AND ACTED UPON BY THE LEGISLATURE, CONGRESS
- IN GIVING THE EXECUTIVE AUTHORITY OVER MATTERS OF FOREIGN AFFAIRS -
MUST OF NECESSITY PAINT WITH A BRUSH BROADER THAN THAT IT CUSTOMARILY
WIELDS IN DOMESTIC AREAS. 

"PRACTICALLY EVERY VOLUME OF THE UNITED STATES STATUTUES CONTAINS ONE
OR MORE ACTS OR JOINT RESOLUTIONS OF CONGRESS AUTHORIZING ACTION BY THE
PRESIDENT IN RESPECT OF SUBJECTS AFFECTING FOREIGN RELATIONS, WHICH
EITHER LEAVE THE EXERCISE OF THE POWER TO HIS UNRESTRICTED JUDGMENT, OR
PROVIDE A STANDARD FAR MORE GENERAL THAN THAT WHICH HAS ALWAYS BEEN
CONSIDERED REQUISITE WITH REGARD TO DOMESTIC AFFAIRS."  UNITED STATES
V. CURTISS-WRIGHT CORP., 299 U.S. 304, 324. 

THIS DOES NOT MEAN THAT SIMPLY BECAUSE A STATUTE DEALS WITH FOREIGN
RELATIONS, IT CAN GRANT THE EXECUTIVE TOTALLY UNRESTRICTED FREEDOM OF
CHOICE.  HOWEVER, THE 1926 ACT CONTAINS NO SUCH GRANT.  WE HAVE HELD,
KENT V. DULLES, SUPRA, AND REAFFIRM TODAY, THAT THE 1926 ACT MUST TAKE
ITS CONTENT FROM HISTORY:  IT AUTHORIZES ONLY THOSE PASSPORT REFUSALS
AND RESTRICTIONS "WHICH IT COULD FAIRLY BE ARGUED WERE ADOPTED BY
CONGRESS IN LIGHT OF PRIOR ADMINISTRATIVE PRACTICE."  KENT V. DULLES,
SUPRA, AT 128.  SO LIMITED, THE ACT DOES NOT CONSTITUTE AN INVALID
DELEGATION. 

 IV. 

APPELLANT'S COMPLAINT SOUGHT NOT ONLY AN ORDER COMPELLING THE
SECRETARY OF STATE TO VALIDATE HIS PASSPORT FOR TRAVEL TO CUBA, BUT
ALSO A DECLARATION THAT APPELLANT "IS ENTITLED UNDER THE CONSTITUTION
AND LAWS OF THE UNITED STATES TO TRAVEL TO CUBA," AND AN ORDER
ENJOINING THE SECRETARY AND THE ATTORNEY GENERAL FROM INTERFERING WITH
SUCH TRAVEL.  READ IN THE CONTEXT OF THE ARGUMENTS APPELLANT MAKES
HERE, IT APPEARS THAT THE INTENT OF THE COMPLAINT WAS THAT THESE LATTER
PRAYERS SHOULD BE CONSIDERED ONLY IN THE EVENT THAT THE COURT DECIDED
THAT THE SECRETARY LACKS AUTHORITY TO REFUSE TO VALIDATE APPELLANT'S
PASSPORT FOR CUBA.  HOWEVER, THE COMPLAINT CAN ALSO BE READ TO
INCORPORATE A REQUEST THAT, EVEN IF THE COURT SHOULD FIND THAT THE
SECRETARY DOES HAVE SUCH AUTHORITY, IT GO ON TO DECIDE WHETHER
APPELLANT CAN BE CRIMINALLY PROSECUTED, UNDER SEC. 215(B) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 190, 8 U.S.C. SEC.
1185(B) (1958 ED.), FOR TRAVEL IN VIOLATION OF AN AREA RESTRICTION. 
THAT SECTION PROVIDES: 

"AFTER SUCH PROCLAMATION AS IS PROVIDED FOR IN SUBSECTION (A) HAS
BEEN MADE AND PUBLISHED AND WHILE SUCH PROCLAMATION IS IN FORCE, IT
SHALL, EXCEPT AS OTHERWISE PROVIDED BY THE PRESIDENT, AND SUBJECT TO
SUCH LIMITATIONS AND EXCEPTIONS AS THE PRESIDENT MAY AUTHORIZE AND
PRESCRIBE, BE UNLAWFUL FOR ANY CITIZEN OF THE UNITED STATES TO DEPART
FROM OR ENTER, OR ATTEMPT TO DEPART FROM OR ENTER, THE UNITED STATES
UNLESS HE BEARS A VALID PASSPORT." 

A PROCLAMATION OF THE SORT REFERRED TO WAS ISSUED IN 1953 AND REMAINS
ON THE BOOKS.  PRES.  PROC. NO. 3004, 67 STAT. C31; CF. EXEC. ORDER NO.
11037, 3 CFR 621 (1959-1963 COMP.).  WE HOLD THAT ON EITHER
INTERPRETATION OF THE COMPLAINT, THE COURT BELOW WAS CORRECT IN
REFUSING TO REACH THE ISSUE OF CRIMINAL LIABILITY. 

THERE ARE CIRCUMSTANCES UNDER WHICH COURTS PROPERLY MAKE EXCEPTIONS
TO THE GENERAL RULE THAT EQUITY WILL NOT INTERFERE WITH THE CRIMINAL
PROCESSES, BY ENTERTAINING ACTIONS FOR INJUNCTION OR DECLARATORY RELIEF
IN ADVANCE OF CRIMINAL PROSECUTION.  SEE EVERS V. DWYER, 358 U.S. 202;
TERRANCE V. THOMPSON, 263 U.S. 197.  HOWEVER, THE DECLARATORY JUDGMENT
ACT, 28 U.S.C. SEC. 2201 (1958 ED.), "IS AN ENABLING ACT, WHICH CONFERS
A DISCRETION ON THE COURTS RATHER THAN AN ABSOLUTE RIGHT UPON THE
LITIGANT."  PUBLIC SERV. COMM'N V. WYCOFF CO., 344 U.S. 237, 241.  THE
COMPLAINT FILED IN THIS CASE DOES NOT SPECIFY THE SORT OF TRAVEL TO
CUBA APPELLANT HAS IN MIND - E.G., WHETHER HE PLANS TO PROCEED TO CUBA
DIRECTLY OR TRAVEL THERE VIA ONE OR MORE OTHER COUNTRIES.  NOR CAN WE
TELL FROM THE PAPERS FILED WHETHER THE GOVERNMENT WILL, IN THE EVENT
APPELLANT JOURNEYS TO CUBA, CHARGE HIM UNDER SEC. 215(B) WITH LEAVING
THE UNITED STATES ON A CARRIER BOUND FOR CUBA WITH A PASSPORT NOT
VALIDATED FOR CUBA; LEAVING THE UNITED STATES WITH THE INTENT OF
TRAVELING TO CUBA BEFORE HE RETURNS HOME; LEAVING THE UNITED STATES
WITH SUCH A PASSPORT ON A JOURNEY WHICH IN FACT TAKES HIM TO CUBA; RE
ENTERING THE UNITED STATES WITH SUCH A PASSPORT AFTER HAVING VISITED
CUBA; SOME OTHER ACT - OR WHETHER IT WILL CHARGE HIM AT ALL.  (FN18)
WHETHER EACH OR ANY OF THESE GRADATIONS OF FACT OR CHARGE WOULD MAKE A
DIFFERENCE AS TO CRIMINAL LIABILITY IS AN ISSUE ON WHICH THE DISTRICT
COURT WISELY TOOK NO POSITION.  NOR DO WE.  FOR IF WE ARE TO AVOID
RENDERING A SERIES OF ADVISORY OPINIONS, ADJUDICATION OF THE REACH AND
CONSTITUTIONALITY OF SEC. 215(B) MUST AWAIT A CONCRETE FACT SITUATION. 
COMPARE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450.    THE DISTRICT
COURT THEREFORE CORRECTLY DISMISSED THE COMPLAINT, AND ITS JUDGMENT IS
AFFIRMED. 

FN1  THIS PROCEDURAL CLAIM WAS ABANDONED IN THE DISTRICT COURT AND
HAS NOT BEEN URGED HERE.    FN2  FLORIDA LIME GROWERS V. JACOBSEN, 362
U.S. 73, 80; SEE ALSO ALLEN V. GRAND CENTRAL AIRCRAFT CO., 347 U.S.
535; LEE V. BICKELL, 292 U.S. 415; STERLING V. CONSTANTIN, 287 U.S.
378. 

FN3  SEE ALSO DOUGLAS V. NOBLE, 261 U.S. 165. 

FN4  THE CONVENING OF A THREE-JUDGE COURT IN THIS CASE SURELY
COINCIDES WITH THE LEGISLATIVE POLICY UNDERLYING THE PASSAGE OF SEC.
2282: 

"THE LEGISLATIVE HISTORY OF SEC. 2282 AND OF ITS COMPLEMENT, SEC.
2281  ...  INDICATES THAT THESE SECTIONS WERE ENACTED TO PREVENT A
SINGLE FEDERAL JUDGE FROM BEING ABLE TO PARALYZE TOTALLY THE OPERATION
OF AN ENTIRE REGULATORY SCHEME, EITHER STATE OR FEDERAL, BY ISSUANCE OF
A BROAD INJUNCTIVE ORDER  ...  .  REPEATEDLY EMPHASIZED DURING THE
CONGRESSIONAL DEBATES ON SEC. 2282 WERE THE HEAVY PECUNIARY COSTS OF
THE UNFORESEEN AND DEBILITATING INTERRUPTIONS IN THE ADMINISTRATION OF
FEDERAL LAW WHICH COULD BE WROUGHT BY A SINGLE JUDGE'S ORDER, AND THE
GREAT BURDENS ENTAILED IN COPING WITH HARASSING ACTIONS BROUGHT ONE
AFTER ANOTHER TO CHALLENGE THE OPERATION OF AN ENTIRE STATUTORY SCHEME,
WHEREVER JURISDICTION OVER GOVERNMENT OFFICIALS COULD BE ACQUIRED,
UNTIL A JUDGE WAS ULTIMATELY FOUND WHO WOULD GRANT THE DESIRED
INJUNCTION."  KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, 154-155. 
APPELLANT IN THIS CASE DOES NOT CHALLENGE MERELY A "SINGLE, UNIQUE
EXERCISE" OF THE SECRETARY'S AUTHORITY, CF. PHILLIPS V. UNITED STATES,
SUPRA, AT 253.  ON THE CONTRARY, THIS SUIT SEEKS TO "PARALYZE TOTALLY
THE OPERATION OF AN ENTIRE REGULATORY SCHEME," INDEED, A REGULATORY
SCHEME DESIGNED AND ADMINISTERED TO PROMOTE THE SECURITY OF THE
NATION. 

FN5  THE SECRETARY OF STATE, RATHER THAN THE PRESIDENT, IMPOSED THE
RESTRICTION ON TRAVEL TO CUBA.   HOWEVER, CONGRESS HAS PROVIDED THAT
"THE SECRETARY OF STATE SHALL PERFORM SUCH DUTIES AS SHALL FROM TIME TO
TIME BE ENJOINED ON OR INTRUSTED TO HIM BY THE PRESIDENT RELATIVE TO
...  SUCH  ... MATTERS RESPECTING FOREIGN AFFAIRS AS THE PRESIDENT OF
THE UNITED STATES SHALL ASSIGN TO THE DEPARTMENT  ...  ."  R.S. SEC.
202, 5 U.S.C. SEC. 156 (1958 ED.).  THE PRESIDENT, IN TURN, HAS
AUTHORIZED THE SECRETARY IN HIS DISCRETION "TO RESTRICT A PASSPORT FOR
USE ONLY IN CERTAIN COUNTRIES OR TO RESTRICT IT AGAINST USE IN CERTAIN
COUNTRIES  ...  ."  EXEC. ORDER NO. 7856, 3 FED. REG. 681, 687, 22 CFR
SEC. 51.75. 

FN6  UNITED STATES V. CERCEDO HERMANOS Y COMPANIA, 209 U.S. 337;
SERVICE V. DULLES, 354 U.S. 363, 380; LABOR BOARD V. GULLETT GIN CO.,
340 U.S. 361, 366. 

FN7  22 DEPT. STATE BULL.  399; 26 ID., AT 7. 

FN8  NORWEGIAN NITROGEN CO. V. UNITED STATES, SUPRA, AT 313; COSTANZO
V. TILLINGHAST, 287 U.S. 341, 345; UNITED STATES V. MIDWEST OIL CO.,
236 U.S. 459, 472-473. 

FN9  ACT OF MAY 22, 1918, 40 STAT. 559; ACT OF JUNE 21, 1941, 55
STAT. 252. 

FN10  PRES.  PROC.  NO. 3004, 67 STAT. C31; CF. EXEC. ORDER NO.
11037, 3 CFR 621 (1959-1963 COMP.). 

FN11  PRES.  PROC.  NO. 3004, 67 STAT. C31, WHICH WAS ISSUED IN 1953
PURSUANT TO SEC. 215, STATED THAT THE DEPARTURE AND ENTRY OF CITIZENS
WOULD BE GOVERNED BY "SECTIONS 53.1 TO 53.9 INCLUSIVE, OF TITLE 22 OF
THE CODE OF FEDERAL REGULATIONS."  22 CFR SEC. 53.8 (1949 ED.) 
PROVIDED: 

"NOTHING IN THIS PART SHALL BE CONSTRUED TO PREVENT THE SECRETARY OF
STATE FROM EXERCISING THE DISCRETION RESTING IN HIM TO REFUSE TO ISSUE
A PASSPORT, TO RESTRICT ITS USE TO CERTAIN COUNTRIES, TO WITHDRAW OR
CANCEL A PASSPORT ALREADY ISSUED, OR TO WITHDRAW A PASSPORT FOR THE
PURPOSE OF RESTRICTING ITS VALIDITY OR USE IN CERTAIN COUNTRIES." 

FN12  APTHEKER V. SECRETARY OF STATE, SUPRA, AT 505-514; SHACHTMAN V.
DULLES, 96 U.S. APP. D.C. 287, 290 (OPINION OF THE COURT), 293
(EDGERTON, J., CONCURRING), 225 F.2D 938, 941, 944 (1955); CF. BOLLING
V. SHARPE, 347 U.S. 497, 499-500; FREEDOM TO TRAVEL (REPORT OF SPECIAL
COMMITTEE TO STUDY PASSPORT PROCEDURES, ASS'N OF THE BAR OF THE CITY OF
NEW YORK), PP. 53, 55 (1958); CHAFEE, THREE HUMAN RIGHTS IN THE
CONSTITUTION OF 1787, P. 192 (1956). 

FN13  COMPARE KENT V. DULLES, SUPRA; APTHEKER V. SECRETARY OF STATE,
SUPRA; UNIVERSAL DECLARATION OF HUMAN RIGHTS, ART. 13 (QUOTED, S. DOC.
NO. 123, 81ST CONG., 1ST SESS., P. 1157); KOREMATSU V. UNITED STATES,
323 U.S. 214, 218. 

FN14 CUBA, DEPT. STATE PUB. NO. 7171, PP. 25-36 (1961); SEE ALSO
BALL, U.S. POLICY TOWARD CUBA, DEPT. STATE PUB. NO. 7690, P. 3 (1964);
47 DEPT. STATE BULL.  598-600. 

FN15  SEE REPORT OF THE SPECIAL COMMITTEE TO STUDY RESOLUTIONS II.1
AND VIII OF THE EIGHTH MEETING OF CONSULTATION OF MINISTERS OF FOREIGN
AFFAIRS, OEA/SER.  G/IV, PP. 14-16 (1963); 48 DEPT. STATE BULL.  517,
719; RESOLUTION I, FINAL ACT, NINTH MEETING OF CONSULTATION OF
MINISTERS OF FOREIGN AFFAIRS, OEA/SER.  F/II.9 (1964). 

FN16  R.S. SEC. 2001, 22 U.S.C. SEC. 1732 (1958 ED.), PROVIDES: 

"WHENEVER IT IS MADE KNOWN TO THE PRESIDENT THAT ANY CITIZEN OF THE
UNITED STATES HAS BEEN UNJUSTLY DEPRIVED OF HIS LIBERTY BY OR UNDER THE
AUTHORITY OF ANY FOREIGN GOVERNMENT, IT SHALL BE THE DUTY OF THE
PRESIDENT FORTHWITH TO DEMAND OF THAT GOVERNMENT THE REASONS OF SUCH
IMPRISONMENT; AND IF IT APPEARS TO BE WRONGFUL AND IN VIOLATION OF THE
RIGHTS OF AMERICAN CITIZENSHIP, THE PRESIDENT SHALL FORTHWITH DEMAND
THE RELEASE OF SUCH CITIZEN, AND IF THE RELEASE SO DEMANDED IS
UNREASONABLY DELAYED OR REFUSED, THE PRESIDENT SHALL USE SUCH MEANS,
NOT AMOUNTING TO ACTS OF WAR, AS HE MAY THINK NECESSARY AND PROPER TO
OBTAIN OR EFFECTUATE THE RELEASE; AND ALL THE FACTS AND PROCEEDINGS
RELATIVE THERETO SHALL AS SOON AS PRACTICABLE BE COMMUNICATED BY THE
PRESIDENT TO CONGRESS." 

FN17  INDEED, IT WAS PRECISELY THIS SORT OF CONSIDERATION WHICH LED
US TO HOLD IN KENT V. DULLES, SUPRA, AT 126-127, THAT THE RIGHT TO
TRAVEL IS PROTECTED BY THE FIFTH AMENDMENT.  SEE ALSO APTHEKER V.
SECRETARY OF STATE, SUPRA, AT 520 (DOUGLAS, J., CONCURRING). 

FN18  THE SOLICITOR GENERAL DOES NOT STATE WITH PARTICULARITY THE
GOVERNMENT'S POSITION AS TO THE REACH OF SEC. 215(B) WITH REGARD TO
AREA RESTRICTIONS; HE SIMPLY ASSERTS THAT SEC. 215(B) "CONFIRMS THE
AUTHORITY OF THE SECRETARY TO IMPOSE AREA RESTRICTIONS IN THE ISSUANCE
OF PASSPORTS AND PROHIBITS TRAVEL IN VIOLATION THEREOF."  BRIEF FOR
APPELLEES, P. 56; SEE ALSO ID., AT 10-11, 60-61. 

MR. JUSTICE BLACK, DISSENTING. 

ARTICLE I OF THE CONSTITUTION PROVIDES THAT "ALL LEGISLATIVE POWERS
HEREIN GRANTED SHALL BE VESTED IN A CONGRESS OF THE UNITED STATES,
WHICH SHALL CONSIST OF A SENATE AND HOUSE OF REPRESENTATIVES."  I HAVE
NO DOUBT THAT THIS PROVISION GRANTS CONGRESS AMPLE POWER TO ENACT
LEGISLATION REGULATING THE ISSUANCE AND USE OF PASSPORTS FOR TRAVEL
ABROAD, UNLESS THE PARTICULAR LEGISLATION IS FORBIDDEN BY SOME SPECIFIC
CONSTITUTIONAL PROHIBITION SUCH AS, FOR EXAMPLE, THE FIRST AMENDMENT. 
SEE APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 517 (CONCURRING
OPINION); CF. KENT V. DULLES, 357 U.S. 116.  SINCE ARTICLE I, HOWEVER,
VESTS "ALL LEGISLATIVE POWERS" IN THE CONGRESS, AND NO LANGUAGE IN THE
CONSTITUTION PURPORTS TO VEST ANY SUCH POWER IN THE PRESIDENT, IT
NECESSARILY FOLLOWS, IF THE CONSTITUTION IS TO CONTROL, THAT THE
PRESIDENT IS COMPLETELY DEVOID OF POWER TO MAKE LAWS REGULATING
PASSPORTS OR ANYTHING ELSE.  AND HE HAS NO MORE POWER TO MAKE LAWS BY
LABELING THEM REGULATIONS THAN TO DO SO BY CALLING THEM LAWS.  LIKE MY
BROTHER GOLDBERG, I CANNOT ACCEPT THE GOVERNMENT'S ARGUMENT THAT THE
PRESIDENT HAS "INHERENT" POWER TO MAKE REGULATIONS GOVERNING THE
ISSUANCE AND USE OF PASSPORTS.  POST.  PP. 28-30.  WE EMPHATICALLY AND
I THINK PROPERLY REJECTED A SIMILAR ARGUMENT ADVANCED TO SUPPORT A
SEIZURE OF THE NATION'S STEEL COMPANIES BY THE PRESIDENT.  YOUNGSTOWN
STEEL & TUBE CO. V. SAWYER, 343 U.S. 579.  AND REGULATION OF PASSPORTS,
JUST LIKE REGULATION OF STEEL COMPANIES, IS A LAW-MAKING - NOT AN
EXECUTIVE, LAW-ENFORCING - FUNCTION. 

NOR CAN I ACCEPT THE GOVERNMENT'S CONTENTION THAT THE PASSPORT
REGULATIONS HERE INVOLVED ARE VALID "BECAUSE THE PASSPORT ACT OF 1926
IN UNEQUIVOCAL WORDS DELEGATES TO THE PRESIDENT AND SECRETARY A GENERAL
DISCRETIONARY POWER OVER PASSPORTS  ...  ."  THAT ACT DOES PROVIDE THAT
"THE SECRETARY OF STATE MAY GRANT AND ISSUE PASSPORTS, AND CAUSE
PASSPORTS TO BE GRANTED, ISSUED, AND VERIFIED IN FOREIGN COUNTRIES  ...
UNDER SUCH RULES AS THE PRESIDENT SHALL DESIGNATE AND PRESCRIBE  ...
."  (FN1)  QUITE OBVIOUSLY, THE GOVERNMENT DOES NOT EXAGGERATE IN
SAYING THAT THIS ACT "DOES NOT PROVIDE ANY SPECIFIC STANDARDS FOR THE
SECRETARY" AND "DELEGATES TO THE PRESIDENT AND SECRETARY A GENERAL
DISCRETIONARY POWER OVER PASSPORTS" - A POWER SO BROAD, IN FACT, AS TO
BE MARKED BY NO BOUNDS EXCEPT AN UNLIMITED DISCRETION.  IT IS PLAIN
THEREFORE THAT CONGRESS HAS NOT ITSELF PASSED A LAW REGULATING
PASSPORTS; IT HAS MERELY REFERRED THE MATTER TO THE SECRETARY OF STATE
AND THE PRESIDENT IN WORDS THAT SAY IN EFFECT, "WE DELEGATE TO YOU OUR
CONSTITUTIONAL POWER TO MAKE SUCH LAWS REGULATING PASSPORTS AS YOU SEE
FIT."  THE SECRETARY OF STATE HAS PROCEEDED TO EXERCISE THE POWER TO
MAKE LAWS REGULATING THE ISSUANCE OF PASSPORTS BY DECLARING THAT HE
WILL ISSUE THEM FOR CUBA ONLY TO "PERSONS WHOSE TRAVEL MAY BE REGARDED
AS BEING IN THE BEST INTERESTS OF THE UNITED STATES," AS HE VIEWS THOSE
INTERESTS.  FOR CONGRESS TO ATTEMPT TO DELEGATE SUCH AN UNDEFINED LAW
MAKING POWER TO THE SECRETARY, THE PRESIDENT, OR BOTH, MAKES APPLICABLE
TO THIS 1926 ACT WHAT MR. JUSTICE CARDOZO SAID ABOUT THE NATIONAL
INDUSTRIAL RECOVERY ACT:  (FN2)  "THIS IS DELEGATION RUNNING RIOT.  NO
SUCH PLENITUDE OF POWER IS SUSCEPTIBLE OF TRANSFER."  A.L.A. SCHECHTER
POULTRY CORP. V. UNITED STATES, 295 U.S. 495, 553 (CONCURRING
OPINION).  SEE ALSO PANAMA REF. CO. V. RYAN, 293 U.S. 388; CF. KENT V.
DULLES, 357 U.S.  116, 129. 

OUR CONSTITUTION HAS ORDAINED THAT LAWS RESTRICTING THE LIBERTY OF
OUR PEOPLE CAN BE ENACTED BY THE CONGRESS AND BY THE CONGRESS ONLY.  I
DO NOT THINK OUR CONSTITUTION INTENDED THAT THIS VITAL LEGISLATIVE
FUNCTION COULD BE FARMED OUT IN LARGE BLOCKS TO ANY GOVERNMENTAL
OFFICIAL, WHOEVER HE MIGHT BE, OR TO ANY GOVERNMENTAL DEPARTMENT OR
BUREAU, WHATEVER ADMINISTRATIVE EXPERTISE IT MIGHT BE THOUGHT TO HAVE. 
THE CONGRESS WAS CREATED ON THE ASSUMPTION THAT ENACTMENT OF THIS FREE
COUNTRY'S LAWS COULD BE SAFELY ENTRUSTED TO THE REPRESENTATIVES OF THE
PEOPLE IN CONGRESS, AND TO NO OTHER OFFICIAL OR GOVERNMENT AGENCY.  THE
PEOPLE WHO ARE CALLED ON TO OBEY LAWS HAVE A CONSTITUTIONAL RIGHT TO
HAVE THEM PASSED ONLY IN THIS CONSTITUTIONAL WAY.  THIS RIGHT BECOMES
ALL THE MORE ESSENTIAL WHEN AS HERE THE PERSON CALLED ON TO OBEY MAY BE
PUNISHABLE BY FIVE YEARS' IMPRISONMENT AND A $5,000 FINE IF HE DARES TO
TRAVEL WITHOUT THE CONSENT OF THE SECRETARY OR ONE OF HIS
SUBORDINATES.  (FN3)  IT IS IRKSOME ENOUGH FOR ONE WHO WISHES TO TRAVEL
TO BE TOLD BY THE CONGRESS, THE CONSTITUTIONAL LAWMAKER WITH POWER TO
LEGISLATE IN THIS FIELD, THAT HE CANNOT GO WHERE HE WISHES.  IT IS
BOUND TO BE FAR MORE IRRITATING - AND I DO NOT THINK THE AUTHORS OF OUR
CONSTITUTION, WHO GAVE "ALL" LEGISLATIVE POWER TO CONGRESS, INTENDED -
FOR A CITIZEN OF THIS COUNTRY TO BE TOLD THAT HE CANNOT GET A PASSPORT
BECAUSE CONGRESS HAS GIVEN AN UNLIMITED DISCRETION TO AN EXECUTIVE
OFFICIAL (OR VIEWED PRACTICALLY, TO HIS SUBORDINATES) TO DECIDE WHEN
AND WHERE HE MAY GO.  I REPEAT MY BELIEF THAT CONGRESS HAS AMPLE POWER
TO REGULATE FOREIGN TRAVEL.  AND OF COURSE, THE FACT THAT THERE MAY BE
GOOD AND ADEQUATE REASONS FOR CONGRESS TO PASS SUCH A LAW IS NO
ARGUMENT WHATEVER FOR HOLDING VALID A LAW WRITTEN NOT BY THE CONGRESS
BUT BY EXECUTIVE OFFICIALS.  SEE PANAMA REF. CO. V. RYAN, SUPRA, 293
U.S., AT 420.  I THINK THE 1926 ACT GIVES THE LAWMAKING POWER OF
CONGRESS TO THE SECRETARY AND THE PRESIDENT AND THAT IT THEREFORE
VIOLATES THE CONSTITUTIONAL COMMAND THAT "ALL" LEGISLATIVE POWER BE
VESTED IN THE CONGRESS.  I WOULD THEREFORE REVERSE THE JUDGMENT. 

FN1  44 STAT. 887, 22 U.S.C. SEC. 211A (1958 ED.). 

FN2  ACT OF JUNE 16, 1933, 48 STAT. 195. 

FN3  66 STAT. 190, 8 U.S.C. SEC. 1185 (1964 ED.). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE GOLDBERG CONCURS,
DISSENTING. 

APPELLANT, THE HOLDER OF A VALID UNITED STATES PASSPORT, REQUESTED
THAT HIS PASSPORT BE VALIDATED FOR TRAVEL TO CUBA:  HE WISHED TO MAKE
THE TRIP "TO SATISFY MY CURIOSITY ABOUT THE STATE OF AFFAIRS IN CUBA
AND TO MAKE ME A BETTER INFORMED CITIZEN."  THE NEED FOR VALIDATION
AROSE FROM THE DEPARTMENT OF STATE'S PRIOR ELIMINATION OF CUBA FROM THE
AREA FOR WHICH PASSPORTS WERE NOT REQUIRED.   22 CFR SEC. 53.3(B), AND
FROM ITS ISSUANCE OF A PUBLIC NOTICE DECLARING ALL OUTSTANDING
PASSPORTS INVALID FOR TRAVEL TO CUBA UNLESS SPECIFICALLY ENDORSED FOR
SUCH TRAVEL UNDER THE AUTHORITY OF THE SECRETARY OF STATE, 26 FED. REG.
492.  A COMPANION PRESS RELEASE OF JANUARY 16, 1961, STATED THAT SUCH
TRAVEL WOULD BE PERMITTED BY "PERSONS WHOSE TRAVEL MAY BE REGARDED AS
BEING IN THE BEST INTERESTS OF THE UNITED STATES, SUCH AS NEWSMEN OR
BUSINESSMEN WITH PREVIOUSLY ESTABLISHED BUSINESS INTERESTS."  THE
PASSPORT OFFICE DENIED APPELLANT'S REQUEST FOR VALIDATION.  REFERRING
TO THE PRESE RELEASE, THE DEPUTY DIRECTOR OF THE PASSPORT OFFICE
INFORMED APPELLANT THAT IT WAS "OBVIOUS THAT YOUR PRESENT PURPOSE OF
VISITING CUBA DOES NOT MEET THE STANDARDS FOR VALIDATION OF YOUR
PASSPORT."    WE HELD IN KENT V. DULLES, 357 U.S. 116, THAT THE RIGHT
TO TRAVEL OVERSEAS, AS WELL AS AT HOME, WAS PART OF THE CITIZEN'S
LIBERTY UNDER THE FIFTH AMENDMENT.  THAT CONCLUSION WAS NOT AN ESOTERIC
ONE DRAWN FROM THE BLUE.  IT REFLECTED A JUDGMENT AS TO THE PERIPHERAL
RIGHTS OF THE CITIZEN UNDER THE FIRST AMENDMENT.  THE RIGHT TO KNOW, TO
CONVERSE WITH OTHERS, TO CONSULT WITH THEM, TO OBSERVE SOCIAL,
PHYSICAL, POLITICAL AND OTHER PHENOMENA ABROAD AS WELL AS AT HOME GIVES
MEANING AND SUBSTANCE TO FREEDOM OF EXPRESSION AND FREEDOM OF THE
PRESS.  WITHOUT THOSE CONTACTS FIRST AMENDMENT RIGHTS SUFFER.  THAT IS
WHY IN KENT V. DULLES, SUPRA, WE SAID THAT FREEDOM OF MOVEMENT HAS
"LARGE SOCIAL VALUES."  ID., AT 126. 

THE ABILITY TO UNDERSTAND THIS PLURALISTIC WORLD, FILLED WITH
CLASHING IDEOLOGIES, IS A PREREQUISITE OF CITIZENSHIP IF WE AND THE
OTHER PEOPLES OF THE WORLD ARE TO AVOID THE NUCLEAR HOLOCAUST.  THE
LATE POPE JOHN XXIII IN HIS FAMOUS ENCYCLICAL PACEM IN TERRIS STATED
THE IDEA ELOQUENTLY: 

"MEN ARE BECOMING MORE AND MORE CONVINCED THAT DISPUTES WHICH ARISE
BETWEEN STATES SHOULD NOT BE RESOLVED BY RECOURSE TO ARMS, BUT RATHER
BY NEGOTIATION. 

"IT IS TRUE THAT ON HISTORICAL GROUNDS THIS CONVICTION IS BASED
CHIEFLY ON THE TERRIBLE DESTRUCTIVE FORCE OF MODERN ARMS; AND IT IS
NOURISHED BY THE HORROR AROUSED IN THE MIND BY THE VERY THOUGHT OF THE
CRUEL DESTRUCTION AND THE IMMENSE SUFFERING WHICH THE USE OF THOSE
ARMAMENTS WOULD BRING TO THE HUMAN FAMILY; AND FOR THIS REASON IT IS
HARDLY POSSIBLE TO IMAGINE THAT IN THE ATOMIC ERA WAR COULD BE USED AS
AN INSTRUMENT OF JUSTICE. 

"NEVERTHELESS, UNFORTUNATELY, THE LAW OF FEAR STILL REIGNS AMONG
PEOPLES, AND IT FORCES THEM TO SPEND FABULOUS SUMS FOR ARMAMENTS:  NOT
FOR AGGRESSION, THEY AFFIRM - AND THERE IS NO REASON FOR NOT BELIEVING
THEM - BUT TO DISSUADE OTHERS FROM AGGRESSION. 

"THERE IS REASON TO HOPE, HOWEVER, THAT BY MEETING AND NEGOTIATING,
MEN MAY COME TO DISCOVER BETTER THE BONDS THAT UNITE THEM TOGETHER,
DERIVING FROM THE HUMAN NATURE WHICH THEY HAVE IN COMMON; AND THAT THEY
MAY ALSO COME TO DISCOVER THAT ONE OF THE MOST PROFOUND REQUIREMENTS OF
THEIR COMMON NATURE IS THIS:  THAT BETWEEN THEM AND THEIR RESPECTIVE
PEOPLES IT IS NOT FEAR WHICH SHOULD REIGN BUT LOVE, A LOVE WHICH TENDS
TO EXPRESS ITSELF IN A COLLABORATION THAT IS LOYAL, MANIFOLD IN FORM
AND PRODUCTIVE OF MANY BENEFITS." 

HE ALSO SAID: 

"FROM THE FACT THAT HUMAN BEINGS ARE BY NATURE SOCIAL, THERE ARISES
THE RIGHT OF ASSEMBLY AND ASSOCIATION." 

SINCE WE DEAL WITH RIGHTS PERIPHERAL TO THE ENJOYMENT OF FIRST
AMENDMENT GUARANTEES, RESTRICTIVE LEGISLATION MUST BE "NARROWLY DRAWN"
(CANTWELL V. CONNECTICUT, 310 U.S. 296, 307) TO MEET A PRECISE EVIL. 
ONLY LAST TERM, IN APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, WE
REAFFIRMED THAT WHEN WE STRUCK DOWN A PROVISION OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT OF 1950 (64 STAT. 987) BECAUSE IT "TOO BROADLY
AND INDISCRIMINATELY" RESTRICTED THE RIGHT TO TRAVEL.  ID., AT 505.  WE
SHOULD DO THE SAME HERE. 

I AGREE THAT THERE ARE AREAS TO WHICH CONGRESS CAN RESTRICT OR BAN
TRAVEL.  PESTILENCES MAY RAGE IN A REGION MAKING IT NECESSARY TO
PROTECT NOT ONLY THE TRAVELER BUT THOSE HE MIGHT INFECT ON HIS RETURN. 
A THEATRE OF WAR MAY BE TOO DANGEROUS FOR TRAVEL.  OTHER LIKE
SITUATIONS CAN BE PUT.  BUT THE ONLY SO-CALLED DANGER PRESENT HERE IS
THE COMMUNIST REGIME IN CUBA.  THE WORLD, HOWEVER, IS FILLED WITH
COMMUNIST THOUGHT; AND COMMUNIST REGIMES ARE ON MORE THAN ONE
CONTINENT.  THEY ARE A PART OF THE WORLD SPECTRUM; AND IF WE ARE TO
KNOW THEM AND UNDERSTAND THEM, WE MUST MINGLE WITH THEM, AS POPE JOHN
SAID.  KEEPING ALIVE INTELLECTUAL INTERCOURSE BETWEEN OPPOSING GROUPS
HAS ALWAYS BEEN IMPORTANT AND PERHAPS WAS NEVER MORE IMPORTANT THAN
NOW. 

THE FIRST AMENDMENT PRESUPPOSES A MATURE PEOPLE, NOT AFRAID OF
IDEAS.  THE FIRST AMENDMENT LEAVES NO ROOM FOR THE OFFICIAL, WHETHER
TRUCULENT OR BENIGN, TO SAY NAY OR YEA BECAUSE THE IDEAS OFFEND OR
PLEASE HIM OR BECAUSE HE BELIEVES SOME POLITICAL OBJECTIVE IS SERVED BY
KEEPING THE CITIZEN AT HOME OR LETTING HIM GO.  YET THAT IS JUST WHAT
THE COURT'S DECISION TODAY ALLOWS TO HAPPEN.  WE HAVE HERE NO
CONGRESSIONAL DETERMINATION THAT CUBA IS AN AREA FROM WHICH OUR
NATIONAL SECURITY DEMANDS THAT AMERICANS BE EXCLUDED.  NOR DO WE HAVE A
CONGRESSIONAL AUTHORIZATION OF THE EXECUTIVE TO MAKE SUCH A
DETERMINATION ACCORDING TO STANDARDS FIXED BY CONGRESS.  RATHER WE HAVE
ONLY THE CLAIM THAT CONGRESS HAS PAINTED WITH SUCH A "BROAD BRUSH" THAT
THE STATE DEPARTMENT CAN BAN TRAVEL TO CUBA SIMPLY BECAUSE IT IS
PLEASED TO DO SO.  BY PERMITTING THIS, THE COURT IGNORES THE "FAMILIAR
AND BASIC PRINCIPLE."  APTHEKER V. SECRETARY OF STATE, SUPRA, AT 508,
THAT "A GOVERNMENTAL PURPOSE TO CONTROL OR PREVENT ACTIVITIES
CONSTITUTIONALLY SUBJECT TO STATE REGULATION MAY NOT BE ACHIEVED BY
MEANS WHICH SWEEP UNNECESSARILY BROADLY AND THEREBY INVADE THE AREA OF
PROTECTED FREEDOMS."  NAACP V. ALABAMA, 377 U.S. 288, 307. 

AS I HAVE SAID, THE RIGHT TO TRAVEL IS AT THE PERIPHERY OF THE FIRST
AMENDMENT, RATHER THAN AT ITS CORE, LARGELY BECAUSE TRAVEL IS, OF
COURSE, MORE THAN SPEECH:  IT IS SPEECH BRIGADED WITH CONDUCT. 
"CONDUCT REMAINS SUBJECT TO REGULATION FOR THE PROTECTION OF SOCITEY
...  .  BUT IN EVERY CASE THE POWER TO REGULATE MUST BE SO EXERCISED AS
NOT, IN ATTAINING A PERMISSIBLE END, UNDULY TO INFRINGE THE PROTECTED
FREEDOM."  CANTWELL V. CONNECTICUT, SUPRA, AT 304.  RESTRICTIONS ON THE
RIGHT TO TRAVEL IN TIMES OF PEACE SHOULD BE SO PARTICULARIZED THAT A
FIRST AMENDMENT RIGHT IS NOT PRECLUDED UNLESS SOME CLEAR COUNTERVAILING
NATIONAL INTEREST STANDS IN THE WAY OF ITS ASSERTION.* 

*TIME AFTER TIME THIS COURT HAS BEEN ALERT TO PROTECT FIRST AMENDMENT
RIGHTS WHICH ARE EXERCISED IN A CONTEXT OF OVERT ACTION WHICH IS
SUBJECT TO GOVERNMENTAL REGULATION.  "IN A SERIES OF DECISIONS THIS
COURT HAS HELD THAT, EVEN THOUGH THE GOVERNMENTAL PURPOSE BE LEGITIMATE
AND SUBSTANTIAL, THAT PURPOSE CANNOT BE PURSUED BY MEANS THAT BROADLY
STIFLE FUNDAMENTAL PERSONAL LIBERTIES WHEN THE END CAN BE MORE NARROWLY
ACHIEVED.  THE BREADTH OF LEGISLATIVE ABRIDGMENT MUST BE VIEWED IN THE
LIGHT OF LESS DRASTIC MEANS FOR ACHIEVING THE SAME BASIC PURPOSE." 
SHELTON V. TUCKER, 364 U.S. 479, 488.  SEE, E.G., LOVELL V. GRIFFIN,
303 U.S. 444; SCHNEIDER V. STATE, 308 U.S. 147; CANTWELL V.
CONNECTICUT, SUPRA; MARTIN V. STRUTHERS, 319 U.S. 141; SAIA V. NEW
YORK, 334 U.S. 558; KUNZ V. NEW YORK, 340 U.S. 290; SCHWARE V. BOARD OF
BAR EXAMINERS, 353 U.S. 232, 239; LOUISIANA EX REL. GREMILLION V.
NAACP, 366 U.S. 293; NAACP V. BUTTON, 371 U.S. 415; APTHEKER V.
SECRETARY OF STATE, SUPRA. 

MR. JUSTICE GOLDBERG, DISSENTING. 

LAST YEAR APPROXIMATELY 2,750,000 AMERICANS TRAVELED ABROAD.  MORE
THAN 1,100,000 PASSPORTS WERE ISSUED OR RENEWED, NEARLY 4,000 OF WHICH
WERE OBTAINED BY JOURNALISTS.  (FN1)  THIS PHENOMENAL AMOUNT OF TRAVEL
NOT ONLY DEMONSTRATES OUR CURIOSITY ABOUT THINGS FOREIGN, AND THE
INCREASING IMPORTANCE OF, AND INDEED OFTEN NECESSITY FOR, TRAVEL, BUT
IT ALSO REFLECTS THE LONG HISTORY OF FREEDOM OF MOVEMENT WHICH
AMERICANS HAVE ENJOYED.  SINCE THE FOUNDING OF THE REPUBLIC OUR
GOVERNMENT HAS ENCOURAGED SUCH TRAVEL.  (FN2)  FOR EXAMPLE, IN 1820,
WHEN JOHN QUINCY ADAMS ISSUED A PASSPORT TO ONE LUTHER BRANDISH HE
CERTIFIED THAT BRANDISH WAS ABOUT TO VISIT FOREIGN COUNTRIES "WITH THE
VIEW OF GRATIFYING A COMMENDABLE CURIOSITY."  (FN3)  IN 1962, HOWEVER,
WHEN APPELLANT REQUESTED THAT HIS PASSPORT BE VALIDATED SO THAT HE
MIGHT TRAVEL TO CUBA "TO SATISFY MY CURIOSITY ABOUT THE STATE OF
AFFAIRS IN CUBA AND TO MAKE ME A BETTER INFORMED CITIZEN," HIS REQUEST
WAS DENIED UPON THE BASIS OF DEPARTMENT OF STATE REGULATIONS, ISSUED
UNDER THE ALLEGED AUTHORITY OF AN EXECUTIVE ORDER, RESTRICTING TRAVEL
TO CUBA. 

APPELLANT ATTACKS THE LIMITATION IMPOSED UPON THE VALIDITY OF HIS
PASSPORT AS BEYOND THE INHERENT POWER OF THE EXECUTIVE, UNAUTHORIZED BY
CONGRESS, AND BEYOND THE CONSTITUTIONAL AUTHORITY OF EITHER THE
EXECUTIVE OR CONGRESS.  I AGREE WITH THE COURT THAT CONGRESS HAS THE
CONSTITUTIONAL POWER TO IMPOSE AREA RESTRICTIONS ON TRAVEL, CONSISTENT
WITH CONSTITUTIONAL GUARANTEES, AND I REJECT APPELLANT'S ARGUMENTS TO
THE CONTRARY.  WITH ALL DEFERENCE, HOWEVER, I DO NOT AGREE WITH THE
COURT'S HOLDING THAT CONGRESS HAS EXERCISED THIS POWER.  MOREOVER, I DO
NOT BELIEVE THAT THE EXECUTIVE HAS INHERENT AUTHORITY TO IMPOSE AREA
RESTRICTIONS IN TIME OF PEACE.  I WOULD HOLD, UNDER THE PRINCIPLES
ESTABLISHED BY PRIOR DECISIONS OF THIS COURT THAT INASMUCH AS CONGRESS
HAS NOT AUTHORIZED THE SECRETARY TO IMPOSE AREA RESTRICTIONS, APPELLANT
WAS ENTITLED TO A PASSPORT VALID FOR TRAVEL TO CUBA. 

                   I. INHERENT AUTHORITY OF THE EXECUTIVE. 

THIS COURT HAS RECOGNIZED THAT THE RIGHT TO TRAVEL ABROAD IS "AN
IMPORTANT ASPECT OF THE CITIZEN'S 'LIBERTY'" GUARANTEED BY THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  KENT V. DULLES, 357 U.S. 116,
127.  IN APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 517, WE
REAFFIRMED THAT "FREEDOM OF TRAVEL IS A CONSTITUTIONAL LIBERTY CLOSELY
RELATED TO RIGHTS OF FREE SPEECH AND ASSOCIATION."  AS NATIONS HAVE
BECOME POLITICALLY AND COMMERCIALLY MORE DEPENDENT UPON ONE ANOTHER AND
FOREIGN POLICY DECISIONS HAVE COME TO HAVE GREATER IMPACT UPON THE
LIVES OF OUR CITIZENS, THE RIGHT TO TRAVEL HAS BECOME CORRESPONDINGLY
MORE IMPORTANT.  THROUGH TRAVEL, BY PRIVATE CITIZENS AS WELL AS BY
JOURNALISTS AND GOVERNMENTAL OFFICIALS, INFORMATION NECESSARY TO THE
MAKING OF INFORMED DECISIONS CAN BE OBTAINED.  AND, UNDER OUR
CONSTITUTIONAL SYSTEM, ULTIMATE RESPONSIBILITY FOR THE MAKING OF
INFORMED DECISIONS RESTS IN THE HANDS OF THE PEOPLE.  AS PROFESSOR
CHAFEE HAS POINTED OUT, "AN AMERICAN WHO HAS CROSSED THE OCEAN IS NOT
OBLIGED TO FORM HIS OPINIONS ABOUT OUR FOREIGN POLICY MERELY FROM WHAT
HE IS TOLD BY OFFICIALS OF OUR GOVERNMENT OR BY A FEW CORRESPONDENTS OF
AMERICAN NEWSPAPERS.  MOREOVER, HIS VIEWS ON DOMESTIC QUESTIONS ARE
ENRICHED BY SEEING HOW FOREIGNERS ARE TRYING TO SOLVE SIMILAR
PROBLEMS.  IN MANY DIFFERENT WAYS DIRECT CONTACT WITH OTHER COUNTRIES
CONTRIBUTES TO SOUNDER DECISIONS AT HOME."  CHAFEE, THREE HUMAN RIGHTS
IN THE CONSTITUTION OF 1787, 195-196 (1956). 

THE CONSTITUTIONAL BASIS OF THE RIGHT TO TRAVEL AND ITS IMPORTANCE TO
DECISION-MAKING IN OUR DEMOCRATIC SOCIETY LED THIS COURT IN KENT V.
DULLES, SUPRA, TO CONCLUDE THAT "IF THAT 'LIBERTY' IS TO BE REGULATED,
IT MUST BE PURSUANT TO THE LAW-MAKING FUNCTIONS OF THE CONGRESS."  357
U.S., AT 129.  IMPLICIT IN THIS STATEMENT, AND AT THE VERY CORE OF THE
HOLDING IN KENT V. DULLES, IS A REJECTION OF THE ARGUMENT THERE
ADVANCED AND ALSO MADE HERE BY THE GOVERNMENT THAT THE EXECUTIVE
POSSESSES AN INHERENT POWER TO PROHIBIT OR IMPEDE TRAVEL BY RESTRICTING
THE ISSUANCE OF PASSPORTS.  THE COURT IN KENT EXPRESSLY RECOGNIZED THAT
A PASSPORT IS NOT ONLY OF GREAT VALUE, BUT ALSO IS NECESSARY (FN4) TO
LEAVE THIS COUNTRY AND TO TRAVEL TO MOST PARTS OF THE WORLD.  KENT V.
DULLES, SUPRA, AT 121.  THE COURT DEMONSTRATES IN KENT V. DULLES, AND I
SHALL SHOW IN DETAIL BELOW, THAT THERE IS NO LONG-STANDING AND
CONSISTENT HISTORY OF THE EXERCISE OF AN ALLEGED INHERENT EXECUTIVE
POWER TO LIMIT TRAVEL OR RESTRICT THE VALIDITY OF PASSPORTS.  IN VIEW
OF THE CONSTITUTIONAL BASIS OF THE RIGHT TO TRAVEL, THE LEGAL AND
PRACTICAL NECESSITY FOR PASSPORTS, AND THE ABSENCE OF A LONG-STANDING
EXECUTIVE PRACTICE OF IMPOSING AREA RESTRICTIONS, I WOULD RULE HERE, AS
THIS COURT DID IN KENT V. DULLES, THAT PASSPORT RESTRICTIONS MAY BE
IMPOSED ONLY WHEN CONGRESS MAKES PROVISION THEREFOR "IN EXPLICIT
TERMS," KENT V. DULLES, SUPRA, AT 130, CONSISTENT WITH CONSTITUTIONAL
GUARANTEES.  CF. YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579. 
I WOULD HOLD EXPRESSLY THAT THE EXECUTIVE HAS NO INHERENT AUTHORITY TO
IMPOSE AREA RESTRICTIONS IN TIME OF PEACE. 

                            II. STATUTORY AUTHORITY. 

I CANNOT ACCEPT THE COURT'S VIEW THAT AUTHORITY TO IMPOSE AREA
RESTRICTIONS WAS GRANTED TO THE EXECUTIVE BY CONGRESS IN THE PASSPORT
ACT OF 1926, 44 STAT. 887, 22 U.S.C. SEC. 211A (1958 ED.), WHICH
PROVIDES, "THE SECRETARY OF STATE MAY GRANT AND ISSUE PASSPORTS  ...
UNDER SUCH RULES AS THE PRESIDENT SHALL DESIGNATE AND PRESCRIBE FOR AND
ON BEHALF OF THE UNITED STATES, AND NO OTHER PERSON SHALL GRANT, ISSUE,
OR VERIFY SUCH PASSPORTS."  I DO NOT BELIEVE THAT THE LEGISLATIVE
HISTORY OF THIS PROVISION, OR ADMINISTRATIVE PRACTICE PRIOR TO ITS MOST
RECENT RE-ENACTMENT IN 1926 WILL SUPPORT THE COURT'S INTERPRETATION OF
THE STATUTE.  MOREOVER, THE NATURE OF THE PROBLEM PRESENTED BY AREA
RESTRICTIONS MAKES IT UNLIKELY THAT AUTHORITY TO IMPOSE SUCH
RESTRICTIONS WAS GRANTED BY CONGRESS IN THE COURSE OF ENACTING SUCH A
BROAD GENERAL STATUTE.  IN MY VIEW, AS THE HISTORY I SHALL RELATE
ESTABLISHES, THIS STATUTE WAS DESIGNED SOLELY TO CENTRALIZE AUTHORITY
TO ISSUE PASSPORTS IN THE HANDS OF THE SECRETARY OF STATE IN ORDER TO
OVERCOME THE ABUSES AND CHAOS CAUSED BY THE FACT THAT PRIOR TO THE
PASSAGE OF THE STATUTE NUMEROUS UNAUTHORIZED PERSONS ISSUED PASSPORTS
AND TRAVEL DOCUMENTS. 

                           A. THE LEGISLATIVE HISTORY. 

THE 1926 PROVISION HAS ITS ORIGIN IN THE ACT OF AUGUST 18, 1856, 11
STAT. 52, 60-61.  PRIOR TO 1856 THE ISSUANCE OF PASSPORTS WAS NOT
REGULATED BY LAW.  GOVERNORS OF STATES, LOCAL MAYORS, AND EVEN NOTARIES
PUBLIC ISSUED DOCUMENTS WHICH SERVED AS PASSPORTS.  THIS PRODUCED
CONFUSION ABROAD.  IN 1835 SECRETARY OF STATE FORSYTH WROTE: 

"IT IS WITHIN THE KNOWLEDGE OF THE DEPARTMENT THAT THE DIPLOMATIC
AGENTS OF FOREIGN GOVERNMENTS IN THE UNITED STATES HAVE DECLINED
AUTHENTICATING ACTS OF GOVERNORS OR OTHER STATE OR LOCAL AUTHORITIES;
AND FOREIGN OFFICERS ABROAD USUALLY REQUIRE THAT PASSPORTS GRANTED BY
SUCH AUTHORITIES SHALL BE AUTHENTICATED BY THE MINISTERS OR CONSULS OF
THE UNITED STATES.  THOSE FUNCTIONARIES, BEING THUS CALLED UPON, FIND
THEMSELVES EMBARRASSED BETWEEN THEIR DESIRE TO ACCOMMODATE THEIR FELLOW
CITIZENS AND THEIR UNWILLINGNESS TO CERTIFY WHAT THEY DO NOT OFFICIALLY
KNOW; AND THE NECESSITY OF SOME UNIFORM PRACTICE, WHICH MAY REMOVE THE
DIFFICULTIES ON ALL SIDES, HAS BEEN STRONGLY URGED UPON THE
DEPARTMENT."  III MOORE, INTERNATIONAL LAW DIGEST 862-863 (1906). 
DESPITE ADMINISTRATIVE EFFORTS TO CURB THE FLOW OF STATE AND LOCAL
PASSPORTS, SECRETARY OF STATE MARCY WROTE IN 1854: 

"TO PRESERVE PROPER RESPECT FOR OUR PASSPORTS IT WILL BE NECESSARY TO
GUARD AGAINST FRAUDS AS FAR AS POSSIBLE IN PROCURING THEM.  I REGRET TO
SAY THAT LOCAL MAGISTRATES OR PERSONS PRETENDING TO HAVE AUTHORITY TO
ISSUE PASSPORTS HAVE IMPOSED UPON PERSONS WHO GO ABROAD WITH THESE
SPURIOUS PAPERS.  OTHERS, AGAIN, WHO KNOW THAT THEY ARE NOT ENTITLED TO
PASSPORTS - NOT BEING CITIZENS OF THE UNITED STATES - SEEK TO GET THESE
FRADULENT PASSPORTS, THINKING THAT THEY WILL PROTECT THEM WHILE
ABROAD."  III MOORE, OP. CIT. SUPRA, AT 863. 

AS IS NOTED IN AN OFFICIAL HISTORY OF THE STATE DEPARTMENT, "THE LACK
OF LEGAL PROVISION ON THE SUBJECT OF PASSPORTS LED TO GROSS ABUSES, AND
'THE IMPOSITIONS PRACTICED UPON THE ILLITERATE AND UNWARY BY THE
FABRICATION OF WORTHLESS PASSPORTS' (IX OP. ATTY. GEN. 350) LED FINALLY
TO THE PASSAGE OF THE ACT OF AUGUST 18, 1856."  THE DEPARTMENT OF STATE
OF THE UNITED STATES:  ITS HISTORY AND FUNCTIONS 178 (1893).  THIS ACT
PROVIDED THAT "THE SECRETARY OF STATE SHALL BE AUTHORIZED TO GRANT AND
ISSUE PASSPORTS, AND CAUSE PASSPORTS TO BE GRANTED, ISSUED, AND
VERIFIED IN FOREIGN COUNTRIES BY SUCH DIPLOMATIC OR CONSULAR OFFICERS
OF THE UNITED STATES, AND UNDER SUCH RULES AS THE PRESIDENT SHALL
DESIGNATE AND PRESCRIBE FOR AND ON BEHALF OF THE UNITED STATES, AND NO
OTHER PERSON SHALL GRANT, ISSUE, OR VERIFY ANY SUCH PASSPORT."  11
STAT. 60.  THAT ACT MADE IT A CRIME FOR A PERSON TO ISSUE A PASSPORT
WHO WAS NOT AUTHORIZED TO DO SO.  THIS PROVISION WAS RE-ENACTED ON JULY
3, 1926, 44 STAT. 887, IN SUBSTANTIALLY IDENTICAL FORM.  (FN5)  THERE
IS NO INDICATION IN THE LEGISLATIVE HISTORY EITHER AT THE TIME THE ACT
WAS ORIGINALLY PASSED IN 1856 OR WHEN IT WAS RE-ENACTED, THAT IT WAS
MEANT TO SERVE ANY PURPOSE OTHER THAN THAT OF CENTRALIZING THE
AUTHORITY TO ISSUE PASSPORTS IN THE HANDS OF THE SECRETARY OF STATE SO
AS TO ELIMINATE ABUSES IN THEIR ISSUANCE.  THUS, IN MY VIEW, THE
AUTHORITY TO MAKE RULES, GRANTED BY THE STATUTE TO THE EXECUTIVE,
EXTENDS ONLY TO THE PROMULGATION OF RULES DESIGNED TO CARRY OUT THIS
STATUTORY PURPOSE. 

                 B. THE ADMINISTRATIVE PRACTICE. 

THE ADMINISTRATIVE PRACTICE OF THE STATE DEPARTMENT PRIOR TO 1926
DOES NOT SUPPORT THE COURT'S VIEW THAT WHEN CONGRESS RE-ENACTED THE
1856 PROVISION IN 1926 IT INTENDED TO GRANT THE EXECUTIVE AUTHORITY TO
IMPOSE AREA RESTRICTIONS.  PRIOR TO THE FIRST WORLD WAR THE STATE
DEPARTMENT HAD NEVER LIMITED THE VALIDITY OF PASSPORTS FOR TRAVEL TO
ANY PARTICULAR AREA.  IN FACT, LIMITATIONS UPON TRAVEL HAD BEEN IMPOSED
ONLY TWICE.  DURING THE WAR OF 1812 CONGRESS SPECIFICALLY PROVIDED BY
STATUTE THAT PERSONS COULD NOT CROSS ENEMY LINES WITHOUT A PASSPORT,
AND IN 1861 AT THE BEGINNING OF THE CIVIL WAR THE SECRETARY OF STATE
RULED THAT PASSPORTS WOULD NOT BE ISSUED TO PERSONS WHOSE LOYALTY WAS
IN DOUBT.  THESE RESTRICTIONS WERE IMPOSED IN TIME OF WAR.  THE FIRST,
RESTRICTING THE AREA OF TRAVEL, EVIDENTLY WAS THOUGHT TO REQUIRE A
SPECIFIC STATUTORY ENACTMENT BY CONGRESS, AND THE SECOND DID NOT LIMIT
THE AREA OF TRAVEL, BUT, RATHER, LIMITED THE PERSONS TO WHOM PASSPORTS
WOULD BE ISSUED.  (FN6)  UNTIL 50 YEARS AGO PEACETIME LIMITATIONS UPON
THE RIGHT OF A CITIZEN TO TRAVEL WERE VIRTUALLY UNKNOWN, SEE CHAFEE,
OP. CIT. SUPRA, AT 193; JAFFE, THE RIGHT TO TRAVEL:  THE PASSPORT
PROBLEM, 35 FOREIGN AFFAIRS 17, AND IT WAS IN THIS ATMOSPHERE THAT THE
ACT OF 1856 WAS PASSED AND ITS RE-ENACTMENT PRIOR TO 1926 TOOK PLACE. 

THE ONLY AREA RESTRICTIONS IMPOSED BETWEEN 1856 AND 1926 AROSE OUT OF
THE FIRST WORLD WAR.  ALTHOUGH AMERICANS WERE NOT REQUIRED BY LAW TO
CARRY PASSPORTS IN 1915, CERTAIN FOREIGN COUNTRIES INSISTED THAT
AMERICANS HAVE THEM.  AMERICAN CONSULATES AND EMBASSIES ABROAD WERE
THEREFORE AUTHORIZED TO ISSUE EMERGENCY PASSPORTS AFTER THE OUTBREAK OF
THE WAR, AND IN 1915 THE SECRETARY OF STATE TELEGRAPHED AMERICAN
AMBASSADORS AND MINISTERS IN FRANCE, GERMANY, GREAT BRITAIN, ITALY, THE
NETHERLANDS, AND DENMARK:  "DO NOT ISSUE EMERGENCY PASSPORTS FOR USE IN
BELGIUM (THEN OCCUPIED BY GERMAN ARMED FORCES) UNLESS APPLICANTS
OBLIGED TO GO THITHER BY SPECIAL EXIGENCY OR AUTHORIZED BY RED CROSS OR
BELGIAN RELIEF COMMISSION."  SEE III HACKWORTH, DIGEST OF INTERNATIONAL
LAW 525-526 (1942).  AFTER THE UNITED STATES ENTERED WORLD WAR I TRAVEL
TO AREAS OF BELLIGERENCY AND TO ENEMY COUNTRIES WAS RESTRICTED. 
PASSPORTS WERE MARKED NOT VALID FOR TRAVEL TO THESE AREAS, AND CONGRESS
PROVIDED BY STATUTE THAT PASSPORTS WERE NECESSARY IN ORDER TO LEAVE OR
ENTER THE UNITED STATES.  THE CONGRESSIONAL ACT REQUIRING PASSPORTS FOR
TRAVEL EXPIRED IN 1921, AND SOON AFTER THE OFFICIAL END OF THE WAR
PASSPORTS WERE MARKED VALID FOR TRAVEL TO ALL COUNTRIES.  SEE III
HACKWORTH, SUPRA, AT 527; HEARINGS BEFORE THE SENATE COMMITTEE ON
FOREIGN RELATIONS ON DEPARTMENT OF STATE PASSPORT POLICIES, 85TH CONG.,
1ST SESS., 64 (HEREAFTER SENATE HEARINGS).  THUS IN 1926 FREEDOM OF
TRAVEL WAS AS COMPLETE AS PRIOR TO WORLD WAR I. IN THIS ATMOSPHERE
CONGRESS RE-ENACTED, IN VIRTUALLY IDENTICAL TERMS, THE 1856 STATUTE,
THE SOLE PURPOSE OF WHICH, AS I HAVE ALREADY NOTED, WAS TO CENTRALIZE
PASSPORT ISSUANCE.  CONGRESS IN DOING SO DID NOT INDICATE THE SLIGHTEST
INTENT OR DESIRE TO ENLARGE THE AUTHORITY OF THE EXECUTIVE TO REGULATE
THE ISSUANCE OF PASSPORTS.  SURELY TRAVEL RESTRICTIONS IMPOSED WHILE
THE UNITED STATES WAS AT WAR AND A SINGLE TELEGRAM INSTRUCTING
MINISTERS TO DENY EMERGENCY PASSPORTS FOR A BRIEF TIME IN 1915 FOR
TRAVEL TO A THEATRE OF WAR, DO NOT SHOW THAT CONGRESS, BY RE-ENACTING
THE 1856 ACT IN 1926, INTENDED TO AUTHORIZE THE EXECUTIVE TO IMPOSE
AREA RESTRICTIONS UPON TRAVEL IN PEACETIME WHENEVER THE EXECUTIVE
BELIEVED SUCH RESTRICTION MIGHT ADVANCE AMERICAN FOREIGN POLICY.  THE
LONG TRADITION OF FREEDOM OF MOVEMENT, THE FACT THAT NO PASSPORT AREA
RESTRICTIONS EXISTED PRIOR TO WORLD WAR I, THE COMPLETE ABSENCE OF ANY
INDICATION IN THE LEGISLATIVE HISTORY THAT CONGRESS INTENDED TO
DELEGATE SUCH SWEEPING AUTHORITY TO THE EXECUTIVE ALL POINT IN
PRECISELY THE OPPOSITE DIRECTION.  (FN7) 

IN KENT V. DULLES, SUPRA, THE COURT HELD THAT THE 1926 ACT DID NOT
AUTHORIZE THE SECRETARY OF STATE TO WITHHOLD PASSPORTS FROM PERSONS
BECAUSE OF THEIR POLITICAL BELIEFS OR ASSOCIATIONS.  ALTHOUGH IT WAS
ARGUED THAT PRIOR TO 1926 THE SECRETARY HAD WITHHELD PASSPORTS FROM
COMMUNISTS AND OTHER SUSPECTED SUBVERSIVES AND THAT SUCH AN
ADMINISTRATIVE PRACTICE HAD BEEN ADOPTED BY CONGRESS, THE COURT FOUND
THAT THE EVIDENCE OF SUCH A PRACTICE WAS INSUFFICIENT TO WARRANT THE
CONCLUSION THAT IT HAD CONGRESSIONAL AUTHORIZATION. 

YET IN KENT V. DULLES THE GOVERNMENT POINTED TO SCATTERED EXECUTIVE
INTERPRETATIONS SHOWING THAT UPON OCCASION THE STATE DEPARTMENT
BELIEVED THAT IT HAD THE AUTHORITY IN PEACETIME TO WITHHOLD PASSPORTS
FROM PERSONS DEEMED BY THE DEPARTMENT TO HOLD SUBVERSIVE BELIEFS.  IN
1901 ATTORNEY GENERAL KNOX ADVISED THE SECRETARY OF STATE THAT A
PASSPORT MIGHT BE WITHHELD FROM "AN AVOWED ANARCHIST."  23 OP. ATTY.
GEN. 509, 511.  ORDERS PROMULGATED BY THE PASSPORT OFFICE PERIODICALLY
HAVE REQUIRED DENIAL OF PASSPORTS TO "REVOLUTIONARY RADICALS."  SEE
PASSPORT OFFICE INSTRUCTIONS OF MAY 4, 1921.  A STATE DEPARTMENT
MEMORANDUM OF MAY 29, 1956, IN SUMMARIZING THE DEPARTMENT'S PASSPORT
POLICY, STATES THAT AFTER THE RUSSIAN REVOLUTION "PASSPORTS WERE
REFUSED TO AMERICAN COMMUNISTS WHO DESIRED TO GO ABROAD FOR
INDOCTRINATION, INSTRUCTION, ETC.  THIS POLICY WAS CONTINUED UNTIL 1931
...  ."  (FN8) 

THESE ISOLATED INSTANCES OF THE ASSUMPTION OF AUTHORITY TO REFUSE
PASSPORTS TO PERSONS THOUGHT SUBVERSIVE WERE HELD INSUFFICIENT TO SHOW
THAT CONGRESS IN 1926 INTENDED TO GRANT THE SECRETARY OF STATE
DISCRETIONARY AUTHORITY TO DENY PASSPORTS TO PERSONS BECAUSE OF THEIR
POLITICAL BELIEFS, KENT V. DULLES, SUPRA, AT 128.  THIS CASE PRESENTS
AN EVEN MORE ATTENUATED SHOWING OF ADMINISTRATIVE PRACTICE, FOR THERE
IS REVEALED ONLY ONE ISOLATED INSTANCE OF A PEACETIME AREA RESTRICTION
AND THIS CLOSELY CONNECTED WITH WORLD WAR I. CLEARLY THIS SINGLE
INSTANCE IS INSUFFICIENT TO SHOW THAT CONGRESS INTENDED TO AUTHORIZE
THE SECRETARY TO IMPOSE PEACETIME AREA RESTRICTIONS. 

MOREOVER, JUST AS THE MORE NUMEROUS INSTANCES OF RESTRICTION ON
TRAVEL BECAUSE OF POLITICAL BELIEFS AND ASSOCIATIONS IN WARTIME WERE
INSUFFICIENT TO SHOW THAT CONGRESS INTENDED TO GRANT THE SECRETARY
AUTHORITY TO CURTAIL SUCH TRAVEL IN TIME OF PEACE, SEE KENT V. DULLES,
SUPRA, AT 128, SO HERE THE FACT THAT AREA RESTRICTIONS WERE IMPOSED
DURING WORLD WAR I DOES NOT SHOW THAT CONGRESS INTENDED TO GRANT THE
SECRETARY AUTHORITY TO IMPOSE SUCH RESTRICTIONS IN TIME OF PEACE.  IN
TIME OF WAR AND IN THE EXERCISE OF THE WAR POWER, RESTRICTIONS MAY BE
IMPOSED THAT ARE NEITHER PERMISSIBLE NOR TOLERABLE IN TIME OF PEACE. 
SEE KENT V. DULLES, SUPRA, AT 128; CF. YOUNGSTOWN SHEET & TUBE CO. V.
SAWYER, 343 U.S. 579.  BUT SEE KENNEDY V. MENDOZA-MARTINEZ, 372 U.S.
144.  THUS EVEN IF THE STATE DEPARTMENT'S WARTIME PRACTICE SHOULD LEAD
TO THE CONCLUSION THAT AREA RESTRICTIONS IN TIME OF WAR WERE
SANCTIONED, IT SURELY DOES NOT SHOW THAT CONGRESS WISHED TO AUTHORIZE
SIMILAR CURTAILMENT OF THE RIGHT TO TRAVEL IN TIME OF PEACE.  (FN9) 

WHILE THE COURT INTIMATES THAT KENT V. DULLES IS DISTINGUISHABLE FROM
THE PRESENT CASE BECAUSE IN KENT V. DULLES PASSPORTS WERE DENIED ON THE
BASIS OF THE APPLICANTS' POLITICAL BELIEFS, ANTE, AT 13, I FIND LITTLE
IN THE LOGIC OF THAT OPINION TO SUPPORT SUCH A DISTINCTION.  THE COURT
IN KENT V. DULLES BASED ITS CONCLUSIONS THAT THE EXECUTIVE DOES NOT
HAVE AN INHERENT POWER TO IMPOSE PEACETIME PASSPORT RESTRICTIONS AND
THAT CONGRESS DID NOT DELEGATE SUCH AUTHORITY TO THE EXECUTIVE ON THE
HISTORY OF PASSPORT RESTRICTIONS AND THE CONSTITUTIONAL BASIS OF THE
RIGHT TO TRAVEL.  WHILE THE COURT THERE MENTIONS THAT IT IS DEALING
"WITH BELIEFS, WITH ASSOCIATIONS, WITH IDEOLOGICAL MATTERS," 357 U.S.,
AT 130, A READING OF THE OPINION CLEARLY REVEALS THAT ITS HOLDING DOES
NOT TURN UPON SUCH FACTORS.  MOREOVER, THE IMPORTANCE OF TRAVEL TO THE
GATHERING OF INFORMATION, AN ACTIVITY CLOSELY CONNECTED WITH THE FIRST
AMENDMENT AND A RIGHT ASSERTED HERE, SEEMS TO BE A MAJOR REASON FOR THE
COURT'S HOLDING IN APTHEKER AND KENT THAT THE RIGHT TO TRAVEL IS
AFFORDED CONSTITUTIONAL PROTECTION.   KENT V. DULLES THUS SEEMS NOT
ONLY RELEVANT, BUT CONTROLLING, IN THE CASE PRESENTED HERE. 

FN1  U.S. DEPT. OF STATE, SUMMARY OF PASSPORT STATISTICS JAN. 1965. 

FN2  VERY RECENTLY THE PRESIDENT HAS REQUESTED CITIZENS VOLUNTARILY
AND TEMPORARILY TO LIMIT THEIR TRAVEL ABROAD BECAUSE OF BALANCE OF
PAYMENTS DIFFICULTIES. 

FN3  SEE U.S. DEPT. OF STATE, THE AMERICAN PASSPORT 10 (1898). 

FN4  EXCEPT FOR THE YEARS 1918 TO 1921 AND SINCE 1941 AMERICAN LAW
DID NOT REQUIRE A PASSPORT FOR TRAVEL ABROAD.  CURRENTLY, HOWEVER, SEC.
215(B) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 190, 8
U.S.C. SEC. 1185(B) (1958 ED.), MAKES IT UNLAWFUL, AFTER THE
PROCLAMATION OF A NATIONAL EMERGENCY "TO DEPART FROM OR ENTER, OR
ATTEMPT TO DEPART FROM OR ENTER, THE UNITED STATES  ... WITHOUT A VALID
PASSPORT."  THE COURT EXPRESSES NO VIEWS NOR DO I UPON THE VALIDITY OR
PROPER INTERPRETATION OF THIS PROVISION, WHICH IS CURRENTLY INVOLVED IN
OTHER LITIGATION NOT NOW BEFORE US.

FN5  THE FOLLOWING CHANGES HAVE BEEN MADE IN THE WORDING OF THIS
PROVISION OF THE STATUTE BETWEEN 1856 AND THE PRESENT:  WHEN THE
STATUTE WAS PLACED IN THE REVISED STATUTES OF 1874, THE WORDS "SHALL BE
AUTHORIZED TO" WERE REPLACED BY "MAY."  R.S. SEC. 4075.  ON JUNE 14,
1902, THE PROVISION WAS AMENDED TO INCREASE THE LIST OF THOSE WHOM THE
SECRETARY COULD CUASE TO GRANT, ISSUE AND VERIFY PASSPORTS IN FOREIGN
COUNTRIES BY ADDING THE WORDS "AND BY SUCH CHIEF OR OTHER EXECUTIVE
OFFICER OF THE INSULAR POSSESSIONS OF THE UNITED STATES."  32 STAT.
386.  WHEN THE PROVISION WAS RE-ENACTED IN 1926, THE LIST OF THOSE WHOM
THE SECRETARY COULD CAUSE TO GRANT, ISSUE AND VERIFY PASSPORTS IN
FOREIGN COUNTRIES WAS MODIFIED BY SUBSTITUTING FOR THE WORDS "BY SUCH
DIPLOMATIC OR CONSULAR OFFICERS OF THE UNITED STATES," THE WORDS "BY
DIPLOMATIC REPRESENTATIVES OF THE UNITED STATES, AND BY SUCH CONSUL
GENERALS, CONSULS, OR VICE CONSULS WHEN IN CHARGE, AS THE SECRETARY OF
STATE MAY DESIGNATE," AND THE WORDS "SUCH PASSPORTS" WERE SUBSTITUTED
FOR THE WORDS "ANY SUCH PASSPORT."  44 STAT. 887. 

FN6  SEE KENT V. DULLES, SUPRA, AT 128, WHERE THE COURT IMPLIES THAT
REGULATION OF TRAVEL BASED UPON DISLOYALTY TO THE COUNTRY DURING
WARTIME PRESENTS QUITE A DIFFERENT QUESTION FROM SUCH REGULATION IN
TIME OF PEACE. 

FN7  THE COURT ALSO ARGUES THAT STATE DEPARTMENT IMPOSITION OF AREA
RESTRICTIONS AFTER 1926 SHOWS THAT THE ACT GRANTED POWER TO IMPOSE SUCH
RESTRICTIONS, FOR A CONSISTENT ADMINISTRATIVE INTERPRETATION MUST BE
GIVEN WEIGHT BY THE COURTS.  ANTE, AT 11.  SEE NORWEGIAN NITROGEN CO.
V. UNITED STATES, 288 U.S. 294.  WITH ALL DEFERENCE, I DO NOT FIND A
CONSISTENT ADMINISTRATIVE INTERPRETATION OF THE 1926 ACT.  WHILE AREA
RESTRICTIONS HAVE BEEN IMPOSED BY THE EXECUTIVE FROM TIME TO TIME SINCE
1926, SEE SENATE HEARINGS 64-65, THE EXECUTIVE HAS ALSO INDICATED
DOUBTS AS TO ITS AUTHORITY TO RESTRICT PASSPORTS.  IN 1958 THE
PRESIDENT FORMALLY ASKED CONGRESS FOR "CLEAR STATUTORY AUTHORITY TO
PREVENT AMERICANS FROM USING PASSPORTS FOR TRAVEL TO AREAS WHERE THERE
IS NO MEANS OF PROTECTING THEM, OR WHERE THEIR PRESENCE WOULD CONFLICT
WITH OUR FOREIGN POLICY OBJECTIVES."  H.R.  DOC. NO. 417, 85TH CONG.,
2D SESS.  IN 1957 THE REPORT OF THE COMMISSION ON GOVERNMENT SECURITY
EXPRESSLY RECOMMENDED THAT IT BE MADE UNLAWFUL "FOR ANY CITIZEN OF THE
UNITED STATES TO TRAVEL TO ANY COUNTRY IN WHICH HIS PASSPORT IS
DECLARED TO BE INVALID."  S. DOC.  NO. 64, 85TH CONG., 1ST SESS., 475. 
MOREOVER, WHEN THE DEPARTMENT OF STATE ANNOUNCED LIMITATIONS ON THE USE
OF PASSPORTS FOR TRAVEL TO RED CHINA, THE ACCOMPANYING PRESS RELEASE
STATED THAT THE RESTRICTIONS DID NOT FORBID AMERICAN TRAVEL TO THE
AREAS RESTRICTED.  SEE SENATE HEARINGS 40; REPORT OF THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK, FREEDOM TO TRAVEL 70 (1958).  IN ANY
EVENT I BELIEVE THAT THE EVIDENCE SET OUT ABOVE THAT CONGRESS DID NOT
MEAN THE 1926 ACT TO AUTHORIZE THE IMPOSITION OF AREA RESTRICTIONS IS
SUFFICIENTLY STRONG SO THAT IT IS NOT OVERCOME BY THE FACT THAT AFTER
1926 THE DEPARTMENT ON OCCASION ASSERTED THAT IT HAD AN INHERENT POWER
TO IMPOSE SUCH RESTRICTIONS. 

FN8  SEE THE REPORT OF THE COMMISSION ON GOVERNMENT SECURITY 470, 471
(1957). 

FN9  ALTHOUGH THE UNITED STATES HAS SEVERED ITS DIPLOMATIC TIES WITH
THE CASTRO GOVERNMENT, AND, AS THE COURT CORRECTLY POINTS OUT, ANTE, AT
14-15, JUSTIFIABLY REGARDS THE CASTRO REGIME AS HOSTILE TO THIS
COUNTRY, THE UNITED STATES IS NOT IN A STATE OF WAR WITH CUBA.  SEE
BANCO NACIONAL DE CUBA V. SABBATINO, 376 U.S. 398, 410. 

     C. THE STATUTE'S INAPPLICABILITY TO THE PROBLEM OF AREA
RESTRICTIONS. 

THE COURT'S INTERPRETATION OF THE 1926 PASSPORT ACT NOT ONLY
OVERLOOKS THE LEGISLATIVE HISTORY OF THE ACT AND DEPARTS FROM THE
LETTER AND SPIRIT OF THIS COURT'S DECISIONS IN KENT V. DULLES, SUPRA,
AND APTHEKER V. SECRETARY OF STATE, SUPRA, BUT IT ALSO IMPLIES THAT
CONGRESS RESOLVED, THROUGH A SWEEPING GRANT OF AUTHORITY, THE MANY
SUBSTANTIAL PROBLEMS INVOLVED IN CURTAILING A CITIZEN'S RIGHT TO TRAVEL
BECAUSE OF CONSIDERATIONS OF NATIONAL POLICY.  PEOPLE TRAVEL ABROAD FOR
NUMEROUS REASONS OF VARYING IMPORTANCE.  SOME TRAVEL FOR PLEASURE,
OTHERS FOR BUSINESS, STILL OTHERS FOR EDUCATION.  FOREIGN
CORRESPONDENTS AND LECTURERS MUST EQUIP THEMSELVES WITH FIRSTHAND
INFORMATION.  SCIENTISTS AND SCHOLARS GAIN CONSIDERABLY FROM
INTERCHANGES WITH COLLEAGUES IN OTHER NATIONS.  SEE CHAFEE, OP. CIT.
SUPRA, AT 195. 

JUST AS THERE ARE DIFFERENT REASONS FOR PEOPLE WANTING TO TRAVEL, SO
THERE ARE DIFFERENT REASONS ADVANCED BY THE GOVERNMENT FOR ITS NEED TO
IMPOSE AREA RESTRICTIONS.  THESE REASONS VARY.  THE GOVERNMENT SAYS
RESTRICTIONS ARE IMPOSED SOMETIMES BECAUSE OF POLITICAL DIFFERENCES
WITH COUNTRIES, SOMETIMES BECAUSE OF UNSETTLED CONDITIONS, AND
SOMETIMES, AS IN THIS CASE, AS PART OF A PROGRAM, UNDERTAKEN TOGETHER
WITH OTHER NATIONS, TO ISOLATE A HOSTILE FOREIGN COUNTRY SUCH AS CUBA
BECAUSE OF ITS ATTEMPTS TO PROMOTE THE SUBVERSION OF DEMOCRATIC
NATIONS.  SEE SENATE HEARINGS 63-69.  THE DEPARTMENT OF STATE ALSO HAS
IMPOSED DIFFERENT TYPES OF TRAVEL RESTRICTIONS IN DIFFERENT
CIRCUMSTANCES.  ALL NEWSMEN, FOR EXAMPLE, WERE PROHIBITED FROM
TRAVELING TO CHINA, SEE SENATE HEARINGS 67, BUT THEY HAVE BEEN ALLOWED
TO VISIT CUBA.  SEE PUBLIC NOTICE 179 (JAN. 16, 1961), 26 FED.  REG.
492; PRESS RELEASE NO. 24, ISSUED BY THE SECRETARY OF STATE, JAN. 16,
1961.  IN VIEW OF THE DIFFERENT TYPES OF NEED FOR TRAVEL RESTRICTIONS,
THE VARIOUS REASONS FOR TRAVELING ABROAD, THE IMPORTANCE AND
CONSTITUTIONAL UNDERPINNINGS OF THE RIGHT TO TRAVEL AND THE RIGHT OF A
CITIZEN AND A FREE PRESS TO GATHER INFORMATION ABOUT FOREIGN COUNTRIES,
IT CANNOT BE PRESUMED THAT CONGRESS, WITHOUT FOCUSING UPON THE COMPLEX
PROBLEMS INVOLVED, RESOLVED THEM BY ADOPTING A BROAD AND SWEEPING
STATUTE WHICH, IN THE COURT'S VIEW, CONFERS UNLIMITED DISCRETION UPON
THE EXECUTIVE, AND WHICH MAKES NO DISTINCTIONS RECONCILING THE RIGHTS
OF THE CITIZEN TO TRAVEL WITH THE GOVERNMENT'S LEGITIMATE NEEDS.  I DO
NOT KNOW HOW CONGRESS WOULD DEAL WITH THIS COMPLEX AREA WERE IT TO
FOCUS ON THE PROBLEMS INVOLVED, OR WHETHER, FOR EXAMPLE, IN LIGHT OF
OUR COMMITMENT TO FREEDOM OF THE PRESS, CONGRESS WOULD CONSENT UNDER
ANY CIRCUMSTANCES TO PROHIBITING NEWSMEN FROM TRAVELING TO FOREIGN
COUNTRIES.  BUT, FACED WITH A COMPLETE ABSENCE OF LEGISLATIVE
CONSIDERATION OF THESE COMPLEX ISSUES, I WOULD NOT PRESUME THAT
CONGRESS, IN 1926, ISSUED A BLANKET AUTHORIZATION TO THE EXECUTIVE TO
IMPOSE AREA RESTRICTIONS AND DEFINE THEIR SCOPE AND DURATION, FOR THE
NATURE OF THE PROBLEM SEEMS PLAINLY TO CALL FOR A MORE DISCRIMINATELY
FASHIONED STATUTE. 

                               III.  CONCLUSION. 

IN MY VIEW IT IS CLEAR THAT CONGRESS DID NOT MEAN THE 1926 ACT TO
AUTHORIZE THE EXECUTIVE TO IMPOSE AREA RESTRICTIONS IN TIME OF PEACE,
AND, WITH ALL DEFERENCE, I DISAGREE WITH THE COURT'S HOLDING THAT IT
DID.  I AGREE WITH THE COURT THAT CONGRESS MAY AUTHORIZE THE IMPOSITION
OF TRAVEL RESTRICTIONS CONSISTENT WITH CONSTITUTIONAL GUARANTEES, BUT I
FIND IT PLAIN AND EVIDENT THAT CONGRESS HAS NEVER CONSIDERED AND
RESOLVED THE PROBLEM.  AFTER CONSIDERATION CONGRESS MIGHT DETERMINE
THAT BROAD GENERAL AUTHORITY SHOULD BE DELEGATED TO THE SECRETARY OF
STATE, OR IT MIGHT FRAME A NARROWER STATUTE.  I BELIEVE THAT HERE, AS
IN OTHER AREAS, APPROPRIATE DELEGATION IS CONSTITUTIONALLY PERMISSIBLE
WHERE SOME STANDARD FOR THE APPLICATION OF DELEGATED POWER IS
PROVIDED.   SEE, E.G., LICHTER V. UNITED STATES, 334 U.S. 742, 785. 
HOWEVER, IN LIGHT OF MY CONCLUSION THAT THE 1926 ACT DID NOT DEAL WITH
AREA RESTRICTIONS I DO NOT FIND IT NECESSARY TO CONSIDER THE QUESTION
OF WHETHER THE LANGUAGE OF THE 1926 ACT MIGHT CONSTITUTE AN
UNCONSTITUTIONALLY BROAD DELEGATION OF POWER. 

IN VIEW OF THE DIFFERENT TYPES OF NEED FOR AREA RESTRICTIONS ASSERTED
BY THE GOVERNMENT, THE VARIOUS REASONS FOR TRAVEL ABROAD, THE
IMPORTANCE AND CONSITUTIONAL UNDERPINNINGS OF THE RIGHT OF CITIZENS AND
A FREE PRESS TO GATHER INFORMATION ABOUT FOREIGN COUNTRIES -
CONSIDERATIONS WHICH CONGRESS DID NOT FOCUS UPON - I WOULD NOT INFER,
AS THE COURT DOES, THAT CONGRESS RESOLVED THE COMPLEX PROBLEM OF AREA
RESTRICTIONS, WHICH NECESSARILY INVOLVES RECONCILING THE RIGHTS OF THE
CITIZEN TO TRAVEL WITH THE GOVERNMENT'S LEGITIMATE NEEDS, BY THE RE
ENACTMENT OF A STATUTE THAT HISTORY SHOWS WAS DESIGNED TO CENTRALIZE
AUTHORITY TO ISSUE PASSPORTS IN THE SECRETARY OF STATE SO AS TO PREVENT
ABUSES ARISING FROM THEIR ISSUANCE BY UNAUTHORIZED PERSONS.  SINCE I
CONCLUDE THAT THE EXECUTIVE DOES NOT POSSESS INHERENT POWER TO IMPOSE
AREA RESTRICTIONS IN PEACETIME, AND THAT CONGRESS HAS NOT CONSIDERED
THE ISSUE AND GRANTED SUCH AUTHORITY TO THE EXECUTIVE, I WOULD REVERSE
THE JUDGMENT OF THE DISTRICT COURT. 
..END :

















MARYLAND, FOR THE USE OF LEVIN V. UNITED STATES 381 U.S. 41 


NO. 345.  ARGUED MARCH 15, 1965.  - DECIDED MAY 3, 1965.  - 329 F.2D
722, AFFIRMED. 


PETITIONERS' DECEDENTS WERE PASSENGERS ON AN AIRLINER WHICH COLLIDED
WITH A JET TRAINER ASSIGNED TO THE MARYLAND AIR NATIONAL GUARD.  THE
ONLY SURVIVOR WAS THE JET TRAINER PILOT, WHOSE NEGLIGENCE IS NOT
DISPUTED.  THE PILOT HELD A COMMISSION FROM THE GOVERNOR OF MARYLAND AS
AN OFFICER IN THE MARYLAND AIR NATIONAL GUARD WHERE HE SERVED ON
ALTERNATE SATURDAYS AS A FIGHTER PILOT AND SQUADRON MAINTENANCE
OFFICER.  HE WAS OTHERWISE EMPLOYED BY THE GUARD AS A CIVILIAN AIRCRAFT
MAINTENANCE CHIEF UNDER 32 U.S.C. SEC 709, AS A SO-CALLED "CARETAKER"
OF GUARD PROPERTY.  THIS SUIT WAS BROUGHT AGAINST THE UNITED STATES
UNDER THE FEDERAL TORT CLAIMS ACT.  THE PRINCIPAL ISSUE BELOW WAS
WHETHER THE PILOT WAS IN HIS MILITARY OR CIVILIAN CAPACITY AT THE TIME
OF THE ACCIDENT.  THE DISTRICT COURT FOUND HE WAS IN A CIVILIAN STATUS
AND AWARDED JUDGMENT FOR PETITIONERS, BUT THE COURT OF APPEALS
REVERSED.  HELD: IN BOTH HIS CIVILIAN AND MILITARY CAPACITIES THE PILOT
WAS AN EMPLOYEE OF THE STATE OF MARYLAND AND THUS THE UNITED STATES IS
NOT LIABLE UNDER THE FEDERAL TORT CLAIMS ACT FOR HIS NEGLIGENCE IN
EITHER CAPACITY.  PP. 46-53. 

(A)  EXCEPT WHEN CALLED INTO FEDERAL SERVICE, THE GUARD IS IN CHARGE
OF THE GOVERNOR OF THE STATE AND ITS MILITARY MEMBERS ARE STATE
EMPLOYEES.  PP. 47-48. 

(B)  CIVILIAN CARETAKERS, WHILE MEETING FEDERAL REQUIREMENTS AND
RECEIVING PAYMENT FROM THE UNITED STATES, ARE UNDER THE JURISDICTION OF
THE STATE ADJUTANT GENERAL AND ARE PERFORMING A STATE FUNCTION.  PP. 48
49. 

(C) UNITED STATES V. HOLLY, 192 F.2D 221, WHICH HELD THAT CIVILIAN
CARETAKERS WERE EMPLOYEES OF THE UNITED STATES, WAS DECIDED ON AN
INCORRECT CONSTRUCTION OF THE NATIONAL DEFENSE ACT.  P. 50. 

(D)  CONGRESSIONAL ENACTMENTS, DESPITE THE HOLLY LINE OF CASES, TREAT
BOTH MILITARY AND CIVILIAN EMPLOYEES OF THE NATIONAL GUARD AS STATE
EMPLOYEES.  PP. 51-52. 

MARYLAND, FOR THE USE OF LEVIN, ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION WE DECIDE HERE IS WHETHER A CIVILIAN EMPLOYEE AND
MILITARY MEMBER OF THE NATIONAL GUARD IS AN "EMPLOYEE" OF THE UNITED
STATES FOR PURPOSES OF THE FEDERAL TORT CLAIMS ACT WHEN HIS NATIONAL
GUARD UNIT IS NOT IN ACTIVE FEDERAL SERVICE.  (FN1) 

PETITIONERS' DECEDENTS WERE PASSENGERS ON A CAPITAL AIRLINES PLANE
THAT COLLIDED OVER MARYLAND WITH A JET TRAINER ASSIGNED TO THE MARYLAND
AIR NATIONAL GUARD.  THE ONLY SURVIVOR OF THE ACCIDENT WAS THE PILOT OF
THE TRAINER, CAPTAIN MCCOY, AND IT IS NOT DISPUTED THAT THE COLLISION
WAS CAUSED BY HIS NEGLIGENCE.  THE ESTATES OF THE PILOT AND CO-PILOT OF
THE CAPITAL PLANE, AND CAPITAL AIRLINES ITSELF, FILED SUIT AGAINST THE
UNITED STATES UNDER THE FEDERAL TORT CLAIMS ACT IN THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA, AND RECOVERED JUDGMENTS.  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED, UNITED STATES V.
MARYLAND FOR THE USE OF MEYER, 116 U.S. APP. D.C. 259, 322 F.2D 1009,
CERT. DENIED, 375 U.S. 954, MOTION FOR LEAVE TO FILE PETITION FOR
REHEARING PENDING, NO. 543, 1963 TERM.  MEANWHILE, PETITIONERS FILED A
SIMILAR SUIT IN THE WESTERN DISTRICT OF PENNSYLVANIA, AND ALL PARTIES
AGREED TO PROCEED SOLELY ON THE RECORD MADE IN THE MEYER CASE.  THE
DISTRICT COURT RENDERED JUDGMENT FOR PETITIONERS, BUT THE COURT OF
APPEALS FOR THE THIRD CIRCUIT REVERSED.  329 F.2D 722.  WE GRANTED
CERTIORARI, 379 U.S. 877, TO RESOLVE THE CONFLICT BETWEEN THE TWO
CIRCUITS ON THIS SINGLE RECORD, AND, MORE BROADLY, TO SETTLE
AUTHORITATIVELY THE BASIC QUESTION STATED AT THE OUTSET OF THIS OPINION
WHICH IS AT THE CORE OF OTHER LITIGATION ARISING OUT OF THIS SAME
DISASTER, NOW PENDING IN A NUMBER OF COURTS IN DIFFERENT PARTS OF THE
COUNTRY.  (FN2) 

CAPTAIN MCCOY HELD A COMMISSION FROM THE GOVERNOR OF MARYLAND AS AN
OFFICER IN THE MARYLAND AIR NATIONAL GUARD, AND HE SERVED ON ALTERNATE
SATURDAYS AS A FIGHTER PILOT AND SQUADRON MAINTENANCE OFFICER WITH THE
104TH FIGHTER INTERCEPTOR SQUADRON.  DURING THE REST OF THE MONTH
CAPTAIN MCCOY WAS EMPLOYED BY THE GUARD IN A CIVILIAN CAPACITY AS
AIRCRAFT MAINTENANCE CHIEF UNDER 32 U.S.C. SEC 709 (1958 ED.), THE SO
CALLED FEDERAL "CARETAKER" STATUTE.  (FN3)  IN HIS CIVILIAN CAPACITY
CAPTAIN MCCOY SUPERVISED THE MAINTENANCE OF THE SQUADRON AIRCRAFT
ASSIGNED TO THE AIR NATIONAL GUARD BUT OWNED BY THE UNITED STATES.  ON
THE DAY OF THE ACCIDENT, CAPTAIN MCCOY HAD OBTAINED PERMISSION FROM HIS
SUPERIOR TO TAKE A PASSENGER ON A FLIGHT IN ORDER TO INTEREST THE
PASSENGER IN JOINING THE AIR NATIONAL GUARD.  THE PRINCIPAL FACTUAL
DISPUTE BELOW WAS WHETHER AT THE TIME OF THE ACCIDENT CAPTAIN MCCOY WAS
PERFORMING HIS DUTIES WITH THE GUARD IN A MILITARY OR CIVILIAN
CAPACITY.  A LINE OF CASES IN THE COURTS OF APPEALS BEGINNING WITH
UNITED STATES V. HOLLY, 192 F.2D 221 (C.A. 10TH CIR., 1951), HAS HELD
THAT CIVILIAN "CARETAKERS" ARE EMPLOYEES OF THE UNITED STATES FOR
PURPOSES OF SUIT UNDER THE FEDERAL TORT CLAIMS ACT.  (FN4)  ANOTHER
LINE OF CASES HAS BEEN EQUALLY CONSISTENT IN TREATING MILITARY MEMBERS
OF THE GUARD AS EMPLOYEES OF THE STATES, NOT THE FEDERAL GOVERNMENT. 
(FN5)  WE DO NOT DEAL WITH THE FACTUAL QUESTION, ON WHICH THE DECISION
BELOW TURNED, (FN6) SINCE, IN AGREEMENT WITH THE VIEWS OF JUDGE SMITH
(FN7) AND IN DISAGREEMENT WITH THE COURT OF APPEALS IN THE MEYER CASE,
WE HOLD THAT IN BOTH CAPACITIES CAPTAIN MCCOY WAS AN EMPLOYEE OF THE
STATE OF MARYLAND, AND NOT OF THE UNITED STATES.  HENCE THE UNITED
STATES CANNOT BE HELD LIABLE UNDER THE TORT CLAIMS ACT FOR HIS
NEGLIGENCE IN EITHER CAPACITY. 

I. 

THE NATIONAL GUARD IS THE MODERN MILITIA RESERVED TO THE STATES BY
ART. I, SEC 8, CL.  15, 16, OF THE CONSTITUTION.  (FN8)  IT HAS ONLY
BEEN IN RECENT YEARS THAT THE NATIONAL GUARD HAS BEEN AN ORGANIZED
FORCE, CAPABLE OF BEING ASSIMILATED WITH EASE INTO THE REGULAR MILITARY
ESTABLISHMENT OF THE UNITED STATES.  FROM THE DAYS OF THE MINUTEMEN OF
LEXINGTON AND CONCORD UNTIL JUST BEFORE WORLD WAR I, THE VARIOUS
MILITIAS EMBODIED THE CONCEPT OF A CITIZEN ARMY, BUT LACKED THE
EQUIPMENT AND TRAINING NECESSARY FOR THEIR USE AS AN INTEGRAL PART OF
THE RESERVE FORCE OF THE UNITED STATES ARMED FORCES.  (FN9)  THE
PASSAGE OF THE NATIONAL DEFENSE ACT OF 1916 (FN10) MATERIALLY ALTERED
THE STATUS OF THE MILITIAS BY CONSTITUTING THEM AS THE NATIONAL GUARD. 
PURSUANT TO POWER VESTED IN CONGRESS BY THE CONSTITUTION (SEE N. 8),
THE GUARD WAS TO BE UNIFORMED, EQUIPPED, AND TRAINED IN MUCH THE SAME
WAY AS THE REGULAR ARMY, SUBJECT TO FEDERAL STANDARDS AND CAPABLE OF
BEING "FEDERALIZED" BY UNITS, RATHER THAN BY DRAFTING INDIVIDUAL
SOLDIERS.  (FN11)  IN RETURN, CONGRESS AUTHORIZED THE ALLOCATION OF
FEDERAL EQUIPMENT TO THE GUARD, AND PROVIDED FEDERAL COMPENSATION FOR
MEMBERS OF THE GUARD, SUPPLEMENTING ANY STATE EMOLUMENTS.  THE
GOVERNOR, HOWEVER, REMAINED IN CHARGE OF THE NATIONAL GUARD IN EACH
STATE EXCEPT WHEN THE GUARD WAS CALLED INTO ACTIVE FEDERAL SERVICE; IN
MOST INSTANCES THE GOVERNOR ADMINISTERED THE GUARD THROUGH THE STATE
ADJUTANT GENERAL, (FN12) WHO WAS REQUIRED BY THE ACT TO REPORT
PERIODICALLY TO THE NATIONAL GUARD BUREAU, A FEDERAL ORGANIZATION, ON
THE GUARD'S RESERVE STATUS.  (FN13)  THE BASIC STRUCTURE OF THE 1916
ACT HAS BEEN PRESERVED TO THE PRESENT DAY. 

FEDERAL FUNDS FOR THE EMPLOYMENT BY THE GUARD OF CIVILIAN "CARETAKERS"
TO BE RESPONSIBLE FOR THE UPKEEP OF FEDERAL EQUIPMENT ALLOCATED TO THE
NATIONAL GUARD.  (FN14)  THIS SECTION WAS LATER AMENDED TO MAKE
EXPLICIT THAT EMPLOYMENT AS A CARETAKER COULD BE HELD BY OFFICERS IN
THE GUARD, WHO WOULD RECEIVE A FULL-TIME SALARY AS CIVILIAN CARETAKERS,
AND IN ADDITION WOULD RECEIVE COMPENSATION FOR SERVICE AS MILITARY
MEMBERS OF THE GUARD.  (FN15)  THE LEGISLATIVE HISTORY OF THESE
AMENDMENTS MAKES CLEAR THAT THE STATE ADJUTANT GENERAL COULD APPOINT
OFFICERS OF THE GUARD TO SERVE AS CIVILIAN CARETAKERS, PROVIDED ONLY
THAT THE APPOINTEES MET THE REQUIREMENTS ESTABLISHED BY THE FEDERAL
AUTHORITIES.  (FN16)

                                       II. 

IT IS NOT ARGUED HERE THAT MILITARY MEMBERS OF THE GUARD ARE FEDERAL
EMPLOYEES, EVEN THOUGH THEY ARE PAID WITH FEDERAL FUNDS AND MUST
CONFORM TO STRICT FEDERAL REQUIREMENTS IN ORDER TO SATISFY TRAINING AND
PROMOTION STANDARDS.  THEIR APPOINTMENT BY STATE AUTHORITIES AND THE
IMMEDIATE CONTROL EXERCISED OVER THEM BY THE STATES MAKE IT APPARENT
THAT MILITARY MEMBERS OF THE GUARD ARE EMPLOYEES OF THE STATES, AND SO
THE COURTS OF APPEALS HAVE UNIFORMLY HELD.  SEE N. 5, SUPRA.  CIVILIAN
CARETAKERS SHOULD NOT BE CONSIDERED AS OCCUPYING A DIFFERENT STATUS. 
CARETAKERS, LIKE MILITARY MEMBERS OF THE GUARD, ARE ALSO PAID WITH
FEDERAL FUNDS AND MUST OBSERVE FEDERAL REQUIREMENTS IN ORDER TO
MAINTAIN THEIR POSITIONS.  (FN17)  ALTHOUGH THEY ARE EMPLOYED TO
MAINTAIN FEDERAL PROPERTY, IT IS PROPERTY FOR WHICH THE STATES ARE
RESPONSIBLE, AND ITS MAINTENANCE IS FOR THE PURPOSE OF KEEPING THE
STATE MILITIA IN A READY STATUS.  THE NATIONAL DEFENSE ACT OF 1916
AUTHORIZED THE ALLOCATION OF FEDERAL PROPERTY TO THE NATIONAL GUARD,
BUT PROVIDED: 

"THAT AS A CONDITION PRECEDENT TO THE ISSUE OF ANY PROPERTY AS
PROVIDED FOR BY THIS ACT, THE STATE, TERRITORY, OR THE DISTRICT OF
COLUMBIA DESIRING SUCH ISSUE SHALL MAKE ADEQUATE PROVISION, TO THE
SATISFACTION OF THE SECRETARY OF WAR, FOR THE PROTECTION AND CARE OF
SUCH PROPERTY  ...  ."  (FN18) 

THE ACT ALSO PROVIDED THAT DAMAGE OR LOSS OF FEDERAL PROPERTY WOULD
BE CHARGED TO THE STATES, UNLESS THE SECRETARY OF WAR DETERMINED THAT
THE DAMAGE OR LOSS WAS UNAVOIDABLE.  (FN19)  CARETAKERS APPOINTED UNDER
SEC 90 OF THE ACT WERE THUS TO PERFORM A STATE FUNCTION, THE
MAINTENANCE OF FEDERAL EQUIPMENT ALLOCATED TO THE GUARD.  (FN20)  THE
CARETAKERS HAVE BEEN TERMED THE "BACKBONE" OF THE GUARD, (FN21) AND ARE
THE ONLY PERSONNEL ON DUTY WITH GUARD UNITS DURING THE GREATER PART OF
THE YEAR.  LIKE THEIR MILITARY COUNTERPART, CARETAKERS ARE APPOINTED BY
THE STATE ADJUTANT GENERAL, (FN22) AND ARE RESPONSIBLE TO HIM IN THE
PERFORMANCE OF THEIR DAILY DUTIES.  THEY CAN BE DISCHARGED AND PROMOTED
ONLY BY HIM.  (FN23)  CIVILIAN CARETAKERS ARE TREATED AS STATE
EMPLOYEES FOR PURPOSES OF THE SOCIAL SECURITY ACT, (FN24) FOR STATE
RETIREMENT FUNDS, (FN25) AND UNDER THE REGULATIONS ISSUED BY THE
DEPARTMENT OF THE AIR FORCE.  (FN26)  AS EARLY AS 1920 THE COMPTROLLER
OF THE TREASURY RULED THAT A CIVILIAN CARETAKER WAS NOT A FEDERAL
EMPLOYEE ENTITLED TO THE ANNUAL LEAVE PROVISIONS APPLICABLE TO THE WAR
DEPARTMENT, (FN27) AN OPINION THAT WAS REITERATED IN 1941 BY THE
COMPTROLLER GENERAL (FN28) AND THAT REFLECTS THE CONSISTENT POSITION OF
THE DEPARTMENT OF DEFENSE.  (FN29) 

UNITED STATES V. HOLLY, SUPRA, DECIDED IN 1951, HELD THAT CIVILIAN
CARETAKERS WERE EMPLOYEES OF THE UNITED STATES, AND HAS SINCE BEEN
FOLLOWED IN OTHER COURTS OF APPEALS (N. 4, SUPRA).  HOLLY RESTED ON A
CONSTRUCTION OF THE NATIONAL DEFENSE ACT WHICH, IN OUR VIEW, IS NOT
SUPPORTED BY THE LEGISLATIVE HISTORY.  ALTHOUGH THE ORIGINAL SECTION
PROVIDED THAT CARETAKERS WERE TO "BE DETAILED BY THE BATTERY OR TROOP
COMMANDER" (WHO WAS A STATE EMPLOYEE), N. 14, SUPRA, IN 1935 CONGRESS
AMENDED THE STATUTE TO PROVIDE THAT THE SECRETARY OF THE MILITARY
ESTABLISHMENT CONCERNED (HERE THE SECRETARY OF THE AIR FORCE) "SHALL
DESIGNATE THE PERSON TO EMPLOY" THE CARETAKER.  (FN30)  THE COURT IN
HOLLY READ THIS AMENDMENT TO MEAN THAT CARETAKERS COULD BE EMPLOYED
DIRECTLY BY FEDERAL AUTHORITIES OR BY THE STATE ADJUTANT GENERAL ACTING
AS A FEDERAL AGENT.  HOWEVER, THE PURPOSE OF THE AMENDMENT WAS SIMPLY
TO PERMIT A STATE TO POOL ITS CARETAKERS, AND NOT TO RESTRICT THE
EMPLOYMENT OF SUCH PERSONNEL ONLY TO THOSE ON THE MILITARY ROSTER OF
THE UNIT WHERE THE EQUIPMENT WAS ALLOTTED.  THE SENATE REPORT INDICATES
THAT CONGRESS ENVISAGED THAT CARETAKERS WOULD CONTINUE TO BE EMPLOYED
ONLY BY THE STATE AUTHORITIES.  IT STATED: 

"SECTION 6 OF S. 2710 WILL AUTHORIZE THE POOLING OF NATIONAL GUARD
CARETAKERS.  UNDER PRESENT LAW STATES ARE REQUIRED TO SELECT THE
CARETAKERS FROM THE UNITS THAT HAVE THE MATERIAL.  SECTION 6 WILL
PERMIT THE HANDLING UNDER THE ADJUTANT GENERAL OR OTHER PROPER STATE
OFFICIAL OF THE CARETAKERS AS A POOL."  (FN31) 

IT SEEMS CLEAR, THEN, THAT NO SIGNIFICANT DISTINCTION WAS INTENDED
BETWEEN THE METHOD OF EMPLOYING MILITARY AND CIVILIAN PERSONNEL OF THE
NATIONAL GUARD. 

CONGRESS AGAIN IN 1954 ACCEPTED THE DEFENSE DEPARTMENT UNDERSTANDING
THAT CIVILIAN CARETAKERS WERE EMPLOYEES OF THE STATES.  IN AMENDING THE
SOCIAL SECURITY ACT (68 STAT.  1059, 42 U.S.C. SEC 418(B)(5) (1958
ED.))  TO PROVIDE COVERAGE FOR CIVILIAN CARETAKERS AS STATE EMPLOYEES,
THE COMMITTEE REPORTS STATED: 

"THIS PROVISION WOULD ESTABLISH AS A SEPARATE COVERAGE GROUP CIVILIAN
EMPLOYEES OF STATE NATIONAL GUARD UNITS WHO ARE EMPLOYED PURSUANT TO
ALLOTTED TO SUCH UNITS BY THE DEPARTMENT OF DEFENSE.  THESE EMPLOYEES
WOULD ALSO BE DEEMED TO BE EMPLOYEES OF THE STATE.  THE DEPARTMENT OF
DEFENSE DOES NOT REGARD THESE EMPLOYEES AS FEDERAL EMPLOYEES  ...  ." 
(FN32) 

IN 1956 CONGRESS AUTHORIZED FEDERAL DISBURSING OFFICERS TO WITHHOLD
FROM THE SALARIES OF CIVILIAN CARETAKERS AMOUNTS NEEDED BY THE STATES
FOR THEIR RETIREMENT SYSTEMS.  ALTHOUGH CONGRESS WAS AWARE OF THE HOLLY
LINE OF CASES, (FN33) THE SENATE REPORT STATED THAT AUTHORITY WAS
NECESSARY SINCE "THESE EMPLOYEES, ALTHOUGH PAID FROM FEDERAL FUNDS, ARE
CONSIDERED TO BE STATE RATHER THAN FEDERAL EMPLOYEES.  ACCORDINGLY,
STATE AUTHORITIES HAVE BEEN UNABLE TO MAKE THE USUAL DEDUCTION OF THE
EMPLOYEE'S CONTRIBUTION INTO THE RETIREMENT SYSTEM."  S. REP. NO. 2045,
84TH CONG., 2D SESS. (1956). 

IN 1960 IT WAS PROPOSED TO EXTEND THE COVERAGE OF THE FEDERAL TORT
CLAIMS ACT TO INCLUDE CIVILIAN AND MILITARY PERSONNEL OF THE NATIONAL
GUARD.  (FN34)  THIS PROPOSAL WAS REJECTED, AND THE BILL THAT FINALLY
PASSED PROVIDES AN ADMINISTRATIVE PROCEDURE WHEREBY THE PROPER
SECRETARY CAN PAY CLAIMS UP TO $5,000 FOR DAMAGE TO PERSONS OR PROPERTY
CAUSED BY NATIONAL GUARD PERSONNEL.  (FN35)  THE ACT INCLUDES LIABILITY
FOR PERSONAL INJURY CAUSED BY CIVILIAN CARETAKERS, EVEN THOUGH THE
JUSTICE DEPARTMENT CALLED TO THE ATTENTION OF CONGRESS THE LINE OF
CASES INDICATING THAT ACTS OF CIVILIAN CARETAKERS WERE ALREADY COVERED
UNDER THE FEDERAL TORT CLAIMS ACT.  (FN36)  THE COMMITTEE REPORTS OF
BOTH THE HOUSE AND SENATE REFLECT ACCEPTANCE OF THE POSITION ADVOCATED
BY THE DEPARTMENT OF THE ARMY THAT CIVILIAN CARETAKERS SHOULD BE
INCLUDED IN THE BILL ALONG WITH THEIR MILITARY COUNTERPARTS.  (FN37) 

IN SUM, WE CONCLUDE THAT THE CONGRESSIONAL PURPOSE IN AUTHORIZING THE
EMPLOYMENT BY STATE AUTHORITIES OF CIVILIAN CARETAKERS, THE
ADMINISTRATIVE PRACTICE OF THE DEFENSE DEPARTMENT IN TREATING
CARETAKERS AS STATE EMPLOYEES, THE CONSISTENT CONGRESSIONAL RECOGNITION
OF THAT STATUS, AND THE LIKE SUPERVISION EXERCISED BY THE STATES OVER
BOTH MILITARY AND CIVILIAN PERSONNEL OF THE NATIONAL GUARD,
UNMISTAKABLY LEAD IN COMBINATION TO THE VIEW THAT CIVILIAN AS WELL AS
MILITARY PERSONNEL OF THE GUARD ARE TO BE TREATED FOR THE PURPOSES OF
THE TORT CLAIMS ACT AS EMPLOYEES OF THE STATES AND NOT OF THE FEDERAL
GOVERNMENT.  THIS REQUIRES A DECISION THAT THE UNITED STATES IS NOT
LIABLE TO PETITIONERS FOR THE NEGLIGENT CONDUCT OF MCCOY.  (FN38)    IN
SO HOLDING WE ARE NOT UNMINDFUL THAT THIS DOUBTLESS LEAVES THOSE WHO
SUFFERED FROM THIS ACCIDENT WITHOUT EFFECTIVE LEGAL REDRESS FOR THEIR
LOSSES.  (FN39)  IT IS NEVERTHELESS OUR DUTY TO TAKE THE LAW AS WE FIND
IT, REMITTING THOSE AGGRIEVED TO WHATEVER REQUITEMENT MAY BE DEEMED
APPROPRIATE BY CONGRESS, WHICH IN AFFORDING THE ADMINISTRATIVE
REMEDIES, UNFORTUNATELY NOT AVAILABLE HERE (SEE N. 37), HAS SHOWN
ITSELF NOT IMPERVIOUS TO THE MORAL DEMANDS OF SUCH DISTRESSING
SITUATIONS.  AFFIRMED. 

FN1  THE FEDERAL TORT CLAIMS ACT PROVIDES IN PERTINENT PART: 

28 U.S.C. SEC 1346 (1958 ED.): 

"(B)  SUBJECT TO THE PROVISIONS OF CHAPTER 171 OF THIS TITLE, THE
DISTRICT COURTS  ...  SHALL HAVE 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." 

28 U.S.C. SEC 2671: 

"AS USED IN THIS CHAPTER AND SECTIONS 1346(B) AND 2401(B) OF THIS
TITLE, THE TERM - 

"'FEDERAL AGENCY' INCLUDES THE EXECUTIVE DEPARTMENTS AND INDEPENDENT
ESTABLISHMENT OF THE UNITED STATES, AND CORPORATIONS PRIMARILY ACTING
AS, INSTRUMENTALITIES OR AGENCIES OF THE UNITED STATES BUT DOES NOT
INCLUDE ANY CONTRACTOR WITH THE UNITED STATES. 

"'EMPLOYEE OF THE GOVERNMENT' INCLUDES OFFICERS OR EMPLOYEES OF ANY
FEDERAL AGENCY, MEMBERS OF THE MILITARY OR NAVAL FORCES OF THE UNITED
STATES, AND PERSONS ACTING ON BEHALF OF A FEDERAL AGENCY IN AN OFFICIAL
CAPACITY, TEMPORARILY OR PERMANENTLY IN THE SERVICE OF THE UNITED
STATES, WHETHER WITH OR WITHOUT COMPENSATION." 

28 U.S.C. SEC 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." 

FN2  WE ARE INFORMED THAT SUCH LITIGATION IS PENDING IN ILLINOIS,
OHIO, AND NEW YORK. 

FN3  NATIONAL DEFENSE ACT OF 1916, SEC 90, 39 STAT. 166, AS AMENDED,
NOW 32 U.S.C. SEC 709 (1958 ED.): 

"(A)  UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY MAY
PRESCRIBE, FUNDS ALLOTTED BY HIM FOR THE ARMY NATIONAL GUARD MAY BE
SPENT FOR THE COMPENSATION OF COMPETENT PERSONS TO CARE FOR MATERIAL,
ARMAMENT, AND EQUIPMENT OF THE ARMY NATIONAL GUARD.  UNDER SUCH
REGULATIONS AS THE SECRETARY OF THE AIR FORCE MAY PRESCRIBE, FUNDS
ALLOTTED BY HIM FOR THE AIR NATIONAL GUARD MAY BE SPENT FOR THE
COMPENSATION OF COMPETENT PERSONS TO CARE FOR MATERIAL, ARMAMENT, AND
EQUIPMENT OF THE AIR NATIONAL GUARD.  A CARETAKER EMPLOYED UNDER THIS
SUBSECTION MAY ALSO PERFORM CLERICAL DUTIES INCIDENTAL TO HIS
EMPLOYMENT AND OTHER DUTIES THAT DO NOT INTERFERE WITH THE PERFORMANCE
OF HIS DUTIES AS CARETAKER. 

"(B)  ENLISTED MEMBERS OF THE NATIONAL GUARD AND CIVILIANS MAY BE
EMPLOYED AS CARETAKERS UNDER THIS SECTION.  HOWEVER, IF A UNIT HAS MORE
THAN ONE CARETAKER, ONE OF THEM MUST BE AN ENLISTED MEMBER. 
COMPENSATION UNDER THIS SECTION IS IN ADDITION TO COMPENSATION
OTHERWISE PROVIDED FOR A MEMBER OF THE NATIONAL GUARD. 

"(C)  UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED,
MATERIAL, ARMAMENT, AND EQUIPMENT OF THE ARMY NATIONAL GUARD OR AIR
NATIONAL GUARD OF A STATE OR TERRITORY, PUERTO RICO, THE CANAL ZONE, OR
THE DISTRICT OF COLUMBIA MAY BE PLACED IN A COMMON POOL FOR CARE,
MAINTENANCE, AND STORAGE.  NOT MORE THAN 15 CARETAKERS MAY BE EMPLOYED
FOR EACH OF THOSE POOLS. 

"(D)  UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED,
ONE COMMISSIONED OFFICER OF THE NATIONAL GUARD IN A GRADE BELOW MAJOR
MAY BE EMPLOYED FOR EACH POOL SET UP UNDER SUBSECTION (C) AND FOR EACH
SQUADRON OF THE AIR NATIONAL GUARD.  COMMISSIONED OFFICERS MAY NOT BE
OTHERWISE EMPLOYED UNDER THIS SECTION. 

"(E)  FUNDS APPROPRIATED BY CONGRESS FOR THE NATIONAL GUARD ARE IN
ADDITION TO FUNDS APPROPRIATED BY THE SEVERAL STATES AND TERRITORIES,
PUERTO RICO, THE CANAL ZONE, AND THE DISTRICT OF COLUMBIA FOR THE
NATIONAL GUARD, AND ARE AVAILABLE FOR THE HIRE OF CARETAKERS AND
CLERKS. 

"(F)  THE SECRETARY CONCERNED SHALL FIX THE SALARIES OF CLERKS AND
CARETAKERS AUTHORIZED TO BE EMPLOYED UNDER THIS SECTION, AND SHALL
DESIGNATE THE PERSON TO EMPLOY THEM." 

FN4  ELMO V. UNITED STATES, 197 F.2D 230 (C.A. 5TH CIR.); UNITED
STATES V. DUNCAN, 197 F.2D 233 (C.A. 5TH CIR.); COURTNEY V. UNITED
STATES, 230 F.2D 112 (C.A.2D CIR.); UNITED STATES V. WENDT, 242 F.2D
854 (C.A. 9TH CIR.). 

FN5  WILLIAMS V. UNITED STATES, 189 F.2D 607 (C.A. 10TH CIR.); DOVER
V. UNITED STATES, 192 F.2D 431 (C.A. 5TH CIR.); MCCRANIE V. UNITED
STATES, 199 F.2D 581 (C.A. 5TH CIR.); STORER BROADCASTING CO. V. UNITED
STATES, 251 F.2D 268 (C.A. 5TH CIR.); BRISTOW V. UNITED STATES, 309
F.2D 465 (C.A. 6TH CIR.); PATTNO V. UNITED STATES, 311 F.2D 604 (C.A.
10TH CIR.); BLACKWELL V. UNITED STATES, 321 F.2D 96 (C.A. 5TH CIR.). 

FN6  A MAJORITY OF THE COURT OF APPEALS HELD, CONTRARY TO THE
DISTRICT COURT, THAT MCCOY WAS ACTING IN HIS MILITARY CAPACITY AT THE
TIME OF THE ACCIDENT. 

FN7  OF THE OTHER TWO MEMBERS OF THE PANEL, JUDGE HASTIE DID NOT
REACH THE QUESTION WHETHER CIVILIAN GUARD EMPLOYEES WERE EMBRACED
WITHIN THE TORT CLAIMS ACT, AND JUDGE STALEY WAS IN ACCORD WITH THE
VIEWS OF THE DISTRICT OF COLUMBIA CIRCUIT IN MEYER. 

FN8  "THE CONGRESS SHALL HAVE POWER: 

"TO PROVIDE FOR CALLING FORTH THE MILITIA TO EXECUTE THE LAWS OF THE
UNION, SUPPRESS INSURRECTIONS AND REPEL INVASIONS: 

"TO PROVIDE FOR ORGANIZING, ARMING, AND DISCIPLINING, THE MILITIA,
AND FOR GOVERNING SUCH PART OF THEM AS MAY BE EMPLOYED IN THE SERVICE
OF THE UNITED STATES, RESERVING TO THE STATES RESPECTIVELY, THE
APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA
ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." 

FN9  SEE GENERALLY, WIENER, THE MILITIA CLAUSE OF THE CONSTITUTION,
54 HARV. L. REV.  181 (1940). 

FN10  39 STAT. 166 (1916). 

FN11  NATIONAL DEFENSE ACT, SEC 111, NOW 10 U.S.C. SEC 672 (1964
ED.).  SEE WIENER, SUPRA, N. 9. 

FN12  SEE 32 U.S.C. SEC 314 (1958 ED.). 

FN13  NATIONAL DEFENSE ACT, SEC 66, AS AMENDED, NOW 32 U.S.C. SEC
314(D) (1958 ED.). 

FN14  "FUNDS ALLOTTED BY THE SECRETARY OF WAR FOR THE SUPPORT OF THE
NATIONAL GUARD SHALL BE AVAILABLE  ...  FOR THE COMPENSATION OF
COMPETENT HELP FOR THE CARE OF THE MATERIAL, ANIMALS, AND EQUIPMENT
THEREOF, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE:
PROVIDED, THAT THE MEN TO BE COMPENSATED, NOT TO EXCEED FIVE FOR EACH
BATTERY OR TROOP, SHALL BE DULY ENLISTED THEREIN AND SHALL BE DETAILED
BY THE BATTERY OR TROOP COMMANDER, UNDER SUCH REGULATIONS AS THE
SECRETARY OF WAR MAY PRESCRIBE, AND SHALL BE PAID BY THE UNITED STATES
DISBURSING OFFICER IN EACH STATE, TERRITORY, AND THE DISTRICT OF
COLUMBIA."  39 STAT. 205. 

FN15  ACT OF JUNE 19, 1935, 49 STAT. 391. 

FN16  SEE S. REP. NO. 635, 74TH CONG., 1ST SESS., PP. 2-3, QUOTED
INFRA, P. 51. 

FN17  DETAILED REQUIREMENTS FOR CIVILIAN CARETAKERS ARE SET OUT IN
AIR NATIONAL GUARD REGULATION NO. 40-01, DATED DECEMBER 20, 1954
(HEREINAFTER ANGR 40-01), AND AIR NATIONAL GUARD MANUAL NO. 40-01,
DATED MARCH 1, 1958. 

FN18  NATIONAL DEFENSE ACT, SEC 83, 39 STAT. 203, 204, NOW 32 U.S.C.
SEC 702(D) (1958 ED.). 

FN19  ID., SEC 87, NOW 32 U.S.C. SEC 710 (1958 ED.). 

FN20  IN 1926 CONGRESS AUTHORIZED THE EMPLOYMENT OF NATIONAL GUARD
OFFICERS AS CARETAKERS, LIMITED TO ONE PER SQUADRON, IN ORDER TO
PROVIDE "AN OFFICER CONSTANTLY ON DUTY AT THE FLYING FIELD FOR THE
SUPERVISION OF FLYING TRAINING."  H.R. REP. NO. 1031, 69TH CONG., 1ST
SESS., P. 3, EXPLAINING THE AMENDMENT TO SEC 90 OF THE NATIONAL DEFENSE
ACT, ENACTED AS ACT OF MAY 28, 1926, 44 STAT. 673, NOW 32 U.S.C. SEC
709(D) (1958 ED.).  SEE ALSO S. REP. NO. 785, 69TH CONG., 1ST SESS.
TRAINING, OF COURSE, WAS A DUTY RESERVED TO THE STATES BY SEC 91 OF THE
NATIONAL DEFENSE ACT AND BY ART. I, SEC 8, CL. 16, OF THE
CONSTITUTION. 

FN21  HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE APPROPRIATIONS
COMMITTEE, 84TH CONG., 2D SESS., P. 1303. 

FN22  ANGR 40-01, PARAS 3(B), 7(A). 

FN23  ID., PARA 3. 

FN24  ACT OF AUG. 14, 1935, C. 531, 49 STAT. 620, AS AMENDED, 42
U.S.C. SEC 418(B)(5) (1958 ED.). 

FN25  ACT OF JUNE 15, 1956, C. 390, 70 STAT. 283, AS AMENDED, 5
U.S.C. SEC 84D (1964 ED.). 

FN26  ANGR 40-01, PARA 4, PROVIDES: 

"AIR NATIONAL GUARD CIVILIAN PERSONNEL ARE CONSIDERED TO BE EMPLOYEES
OF THE STATE, TERRITORY, PUERTO RICO, OR THE DISTRICT OF COLUMBIA (21
COMP GEN DEC. 305)." 

FN27  27 COMP. DEC. 344 (1920). 

FN28  21 COMP. GEN. 305 (1941). 

FN29  SEE S. REP. NO. 1502, 86TH CONG., 2D SESS., P. 6; H.R. REP. NO.
1928, 86TH CONG., 2D SESS., P. 6. 

FN30  SUPRA, N. 15, NOW 32 U.S.C. SEC 709(F) (1958 ED.) 

FN31  S. REP. NO. 635, 74TH CONG., 1ST SESS., PP. 2-3. 

FN32  S. REP. NO. 1987, 83D CONG., 2D SESS., PP. 45-46; H.R. REP. NO.
1698, 83D CONG., 2D SESS., P. 50. 

FN33  S. REP. NO. 2045, 84TH CONG., 2D SESS., P. 4. 

FN34  S. 1764 AND H.R. 5435, 86TH CONG., 2D SESS. 

FN35  ACT OF SEPTEMBER 13, 1960, 74 STAT. 878, 32 U.S.C. SEC 715
(1958 ED., SUPP. IV).  IF THE CLAIM IS FOR MORE THAN $5,000 AND THE
SECRETARY DEEMS IT MERITORIOUS HE MAY AWARD UP TO $5,000 AND CERTIFY
THE BALANCE TO CONGRESS FOR APPROPRIATE ACTION. 

FN36  SEE S. REP. NO. 1502, 86TH CONG., 2D SESS., P. 11; HEARINGS
BEFORE SUBCOMMITTEE NO. 2 OF THE HOUSE COMMITTEE ON THE JUDICIARY ON
H.R. 5435 AND H.R. 9315, 86TH CONG., 2D SESS., PP. 6-7. 

FN37  SEE S. REP. NO. 1502, SUPRA; H.R. REP. NO. 1928, SUPRA.  THE
1960 ACT DOES NOT COVER THE ACCIDENT INVOLVED IN THESE CASES, SINCE THE
COLLISION OCCURRED IN 1958. 

FN38  PETITIONERS CONTEND THAT THE JUDGMENTS OF THE DISTRICT OF
COLUMBIA CIRCUIT IN MEYER SHOULD BE GIVEN COLLATERAL ESTOPPEL EFFECT
HERE, EVEN THOUGH PETITIONERS WERE NOT PARTIES IN MEYER.  SEE
RESTATEMENT, JUDGMENTS SEC 93, COMMENT B; DEVELOPMENTS IN THE LAW - RES
JUDICATA, 65 HARV. L. REV. 818, 865, 870-871 (1952); BUT SEE UNITED
STATES V. UNITED AIR LINES, INC., 216 F. SUPP. 709, AFF'D ON OTHER
GROUNDS SUB NOM.  UNITED AIR LINES, INC. V. WIENER, 335 F.2D 379, WRIT
OF CERT. DISMISSED UNDER RULE 60, 379 U.S. 951.  WE REJECT THE
GOVERNMENT'S CONTENTION THAT THE POINT WAS NOT PRESERVED BELOW.  HAVING
REGARD TO THE FACT THAT THE DECISION IN MEYER CAME DOWN DURING THE
INTERVAL BETWEEN THE ARGUMENT AND DECISION OF LEVIN, WE THINK THAT THE
ESTOPPEL CHALLENGE WAS PROPERLY AND TIMELY RAISED IN THE PETITION FOR
REHEARING IN LEVIN.  HOWEVER, WE NEED NOT REACH THE MERITS OF THE
CHALLENGE SINCE THE JUDGMENT IN MEYER, ALSO PENDING IN THIS COURT (SEE
P. 43, SUPRA), MUST, IN ANY EVENT, NOW FALL IN CONSEQUENCE OF OUR
DECISION IN THE CASES BEFORE US. 

FN39  THE STATE OF MARYLAND HAS NOT, SO FAR AS WE KNOW, WAIVED ITS
SOVEREIGN IMMUNITY, AND PETITIONERS ARE NOT ELIGIBLE FOR BENEFITS UNDER
32 U.S.C. SEC 715, SUPRA, N. 35. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :




















UNITED STATES V. MIDLAND-ROSS CORP. 381 U.S. 54 


NO. 628.  ARGUED MARCH 31, 1965.  - DECIDED MAY 3, 1965.  - 335 F.2D
561, REVERSED. 


RESPONDENT TAXPAYER IN 1952-1954 BOUGHT NONINTEREST-BEARING PROMISSORY
NOTES AT PRICES DISCOUNTED BELOW THE FACE AMOUNTS AND HELD THEM OVER
SIX MONTHS.  BEFORE MATURITY AND IN THE YEAR OF PURCHASE IT SOLD EACH
BELOW THE FACE AMOUNT BUT FOR MORE THAN THE ISSUE PRICE.  THE GAINS,
CONCEDEDLY THE ECONOMIC EQUIVALENT OF INTEREST, WERE REPORTED AS
CAPITAL GAINS.  THE COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT
THE GAINS ATTRIBUTABLE TO ORIGINAL ISSUE DISCOUNT WERE BUT INTEREST IN
ANOTHER FORM AND THEREFORE TAXABLE AS ORDINARY INCOME.  AFTER PAYING
THE DEFICIENCIES RESPONDENT BROUGHT THIS REFUND ACTION WHICH BOTH THE
DISTRICT COURT AND THE COURT OF APPEALS DECIDED IN ITS FAVOR.  HELD:
EARNED ORIGINAL ISSUE DISCOUNT IS NOT ENTITLED TO CAPITAL GAINS
TREATMENT UNDER THE 1939 INTERNAL REVENUE CODE.  PP. 56-67. 

(A)  ALTHOUGH CAPITAL GAINS TREATMENT IS TO BE ACCORDED TO THE SALE
OF A "CAPITAL ASSET," DEFINED IN SEC 117(A)(1) OF THE INTERNAL REVENUE
CODE OF 1939 AS "PROPERTY" HELD BY THE TAXPAYER, THE TERM "CAPITAL
ASSET" IS TO BE CONSTRUED NARROWLY SO AS TO APPLY ONLY WHERE THERE HAS
BEEN REALIZATION OF APPRECIATION IN VALUE ACCRUED OVER A SUBSTANTIAL
PERIOD OF TIME.  PP. 56-57. 

(B)  "CAPITAL ASSET" DOES NOT INCLUDE AN ITEM LIKE EARNED ORIGINAL
ISSUE DISCOUNT, WHICH SERVES THE SAME FUNCTION AS STATED INTEREST, THE
EARNING OF WHICH IS PREDICTABLE AND DOES NOT REPRESENT MARKET
APPRECIATION.  PP. 57-58. 

(C)  IN SPECIFYING ORDINARY INCOME TREATMENT FOR ORIGINAL ISSUE
DISCOUNT IN SEC. 1232(A)(2) OF THE INTERNAL REVENUE CODE OF 1954 AND IN
SPECIAL PROVISIONS OF THE 1939 CODE CONGRESS DID NOT INDICATE ANY
UNDERSTANDING THAT SUCH DISCOUNT WOULD BE ENTITLED TO CAPITAL GAINS
TREATMENT IN THE ABSENCE OF SUCH PROVISIONS.  PP. 58-63. 

(D)  A CASE IN WHICH THE TAX COURT ALLOWED CAPITAL GAINS TREATMENT OF
THE FULL AMOUNT THE TAXPAYER RECEIVED UPON RETIREMENT OF AN
"ACCUMULATIVE INSTALLMENT CERTIFICATE" - CAULKINS V. COMMISSIONER, 1
T.C. 656, ACQ. 1944 CUM. BULL.  5, AFF'D, 144 F.2D 482 (C.A. 6TH CIR.),
ACQ. WITHDRAWN, 1955-1 CUM. BULL.  7 - DID NOT UNAMBIGUOUSLY ESTABLISH
THAT ORIGINAL ISSUE DISCOUNT WAS ITSELF A "CAPITAL ASSET" ENTITLED TO
CAPITAL GAINS TREATMENT, AND WHAT LITTLE OTHER ADMINISTRATIVE PRACTICE
DEALT WITH THE QUESTION APPEARS CONTRARY TO ITS HOLDING.  PP. 63-66. 

(E)  THIS COURT HAS OFTEN RECOGNIZED THE ECONOMIC FUNCTION OF
DISCOUNT AS INTEREST.  PP. 66-67. 

UNITED STATES V. MIDLAND-ROSS CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER, UNDER THE INTERNAL REVENUE CODE
OF 1939, CERTAIN GAINS REALIZED BY THE TAXPAYER ARE TAXABLE AS CAPITAL
GAINS OR AS ORDINARY INCOME.  THE TAXPAYER BOUGHT NONINTEREST-BEARING
PROMISSORY NOTES FROM THE ISSUERS AT PRICES DISCOUNTED BELOW THE FACE
AMOUNTS.  WITH ONE EXCEPTION, EACH OF THE NOTES WAS HELD FOR MORE THAN
SIX MONTHS, AND, BEFORE MATURITY AND IN THE YEAR OF PURCHASE, WAS SOLD
FOR LESS THAN ITS FACE AMOUNT BUT MORE THAN ITS ISSUE PRICE.  (FN1) IT
IS CONCEDED THAT THE GAIN IN EACH CASE WAS THE ECONOMIC EQUIVALENT OF
INTEREST FOR THE USE OF THE MONEY TO THE DATE OF SALE BUT THE TAXPAYER
REPORTED THE GAINS AS CAPITAL GAINS.  THE COMMISSIONER OF INTERNAL
REVENUE DETERMINED THAT THE GAINS ATTRIBUTABLE TO ORIGINAL ISSUE
DISCOUNT WERE BUT INTEREST IN ANOTHER FORM AND THEREFORE WERE TAXABLE
AS ORDINARY INCOME.  RESPONDENT PAID THE RESULTING DEFICIENCIES AND IN
THIS SUIT FOR REFUND PREVAILED IN THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO, 214 F. SUPP. 631, AND IN THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT, 335 F.2D 561.  BECAUSE THIS TREATMENT AS CAPITAL GAINS
CONFLICTS WITH THE RESULT REACHED BY OTHER COURTS OF APPEALS, (FN2) WE
GRANTED CERTIORARI.  379 U.S. 944.  WE REVERSE. 

THE MORE FAVORABLE CAPITAL GAINS TREATMENT APPLIED ONLY TO GAIN ON
"THE SALE OR EXCHANGE OF A CAPITAL ASSET."  SEC 117(A)(4).  ALTHOUGH
ORIGINAL ISSUE DISCOUNT BECOMES PROPERTY WHEN THE OBLIGATION FALLS DUE
OR IS LIQUIDATED PRIOR TO MATURITY AND SEC. 117(A)(1) DEFINED A CAPITAL
ASSET AS "PROPERTY HELD BY THE TAXPAYER," (FN3) WE HAVE HELD THAT: 

"NOT EVERYTHING WHICH CAN BE CALLED PROPERTY IN THE ORDINARY SENSE
AND WHICH IS OUTSIDE THE STATUTORY EXCLUSIONS QUALIFIES AS A CAPITAL
ASSET.  THIS COURT HAS LONG HELD THAT THE TERM 'CAPITAL ASSET' IS TO BE
CONSTRUED NARROWLY IN ACCORDANCE WITH THE PURPOSE OF CONGRESS TO AFFORD
CAPITAL-GAINS TREATMENT ONLY IN SITUATIONS TYPICALLY INVOLVING THE
REALIZATION OF APPRECIATION IN VALUE ACCRUED OVER A SUBSTANTIAL PERIOD
OF TIME, AND THUS TO AMELIORATE THE HARDSHIP OF TAXATION OF THE ENTIRE
GAIN IN ONE YEAR."  COMMISSIONER V. GILLETTE MOTOR CO., 364 U.S. 130,
134. 

SEE ALSO CORN PRODUCTS CO. V. COMMISSIONER, 350 U.S. 46, 52.  IN
APPLYING THIS PRINCIPLE, THIS COURT HAS CONSISTENTLY CONSTRUED "CAPITAL
ASSET" TO EXCLUDE PROPERTY REPRESENTING INCOME ITEMS OR ACCRETIONS TO
THE VALUE OF A CAPITAL ASSET THEMSELVES PROPERLY ATTRIBUTABLE TO
INCOME.  THUS THE COURT HAS HELD THAT "CAPITAL ASSET" DOES NOT INCLUDE
COMPENSATION AWARDED A TAXPAYER AS REPRESENTING THE FAIR RENTAL VALUE
OF ITS FACILITIES DURING THE PERIOD OF THEIR OPERATION UNDER GOVERNMENT
CONTROL, COMMISSIONER V. GILLETTE MOTOR CO., SUPRA; THE AMOUNT OF THE
PROCEEDS OF THE SALE OF AN ORANGE GROVE ATTRIBUTABLE TO THE VALUE OF AN
UNMATURED ANNUAL CROP, WATSON V. COMMISSIONER, 345 U.S. 544; AN
UNEXPIRED LEASE, HORT V. COMMISSIONER, 313 U.S. 28; AND OIL PAYMENT
RIGHTS, COMMISSIONER V. P.G. LAKE, INC., 356 U.S. 260.  SIMILARLY,
EARNED ORIGINAL ISSUE DISCOUNT CANNOT BE REGARDED AS "TYPICALLY
INVOLVING THE REALIZATION OF APPRECIATION IN VALUE ACCRUED OVER A
SUBSTANTIAL PERIOD OF TIME  ...  GIVEN CAPITAL GAINS TREATMENT TO
AMELIORATE THE HARDSHIP OF TAXATION OF THE ENTIRE GAIN IN ONE YEAR." 

EARNED ORIGINAL ISSUE DISCOUNT SERVES THE SAME FUNCTION AS STATED
INTEREST, CONCEDEDLY ORDINARY INCOME AND NOT A CAPITAL ASSET; IT IS
SIMPLY "COMPENSATION FOR THE USE OR FORBEARANCE OF MONEY."  DEPUTY V.
DU PONT, 308 U.S. 488, 498; CF. LUBIN V. COMMISSIONER, 335 F.2D 209
(C.A.2D CIR.).  UNLIKE THE TYPICAL CASE OF CAPITAL APPRECIATION, THE
EARNING OF DISCOUNT TO MATURITY IS PREDICTABLE AND MEASURABLE, AND IS
"ESSENTIALLY A SUBSTITUTE FOR  ...  PAYMENTS WHICH SEC 22(A) EXPRESSLY
CHARACTERIZES AS GROSS INCOME; THUS IT MUST BE REGARDED AS ORDINARY
INCOME, AND IT IS IMMATERIAL THAT FOR SOME PURPOSES THE CONTRACT
CREATING THE RIGHT TO SUCH PAYMENTS MAY BE TREATED AS 'PROPERTY' OR
'CAPITAL.'"  HORT V. COMMISSIONER, SUPRA, AT 31.  THE $6 EARNED ON A
ONE-YEAR NOTE FOR $106 ISSUED FOR $100 IS PRECISELY LIKE THE $6 EARNED
ON A ONE-YEAR LOAN OF $100 AT 6% STATED INTEREST.  THE APPLICATION OF
GENERAL PRINCIPLES WOULD INDICATE, THEREFORE, THAT EARNED ORIGINAL
ISSUE DISCOUNT, LIKE STATED INTEREST, SHOULD BE TAXED UNDER SEC 22(A)
AS ORDINARY INCOME.  (FN4) 

THE TAXPAYER ARGUES, HOWEVER, THAT ADMINISTRATIVE PRACTICE AND
CONGRESSIONAL TREATMENT OF ORIGINAL ISSUE DISCOUNT UNDER THE 1939 CODE
ESTABLISH THAT SUCH DISCOUNT IS TO BE ACCOUNTED FOR AS CAPITAL GAIN
WHEN REALIZED.  SECTION 1232(A)(2)(A) OF THE INTERNAL REVENUE CODE OF
1954 (FN5) PROVIDES THAT "UPON SALE OR EXCHANGE OF  ...  EVIDENCES OF
INDEBTEDNESS ISSUED AFTER DECEMBER 31, 1954, HELD BY THE TAXPAYER MORE
THAN 6 MONTHS, ANY GAIN REALIZED  ...  UP TO THE PRORATED AMOUNT OF
ORIGINAL ISSUE DISCOUNT SHALL BE CONSIDERED AS GAIN FROM THE SALE OR
EXCHANGE OF PROPERTY WHICH IS NOT A CAPITAL ASSET," THAT IS, IT IS TO
BE TAXED AT ORDINARY INCOME RATES.  FROM THIS THE TAXPAYER WOULD INFER
THAT CONGRESS UNDERSTOOD PRIOR ADMINISTRATIVE AND LEGISLATIVE HISTORY
AS EXTENDING CAPITAL GAINS TREATMENT TO REALIZED ORIGINAL ISSUE
DISCOUNT.  IF ADMINISTRATIVE PRACTICE AND LEGISLATIVE HISTORY BEFORE
1954 DID IN FACT IGNORE ECONOMIC REALITY AND TREAT STATED INTEREST AND
ORIGINAL ISSUE DISCOUNT DIFFERENTLY FOR TAX PURPOSES, THE TAXPAYER
SHOULD PREVAIL.  SEE HANOVER BANK V. COMMISSIONER, 369 U.S. 672; DEPUTY
V. DU PONT, SUPRA; CF.  HELVERING V. R.J. REYNOLDS TOBACCO CO., 306
U.S. 110.  BUT THE TAXPAYER MUST PERSUADE US THAT THIS WAS CLEARLY THE
CASE, SEE WATSON V. COMMISSIONER, SUPRA, AT 551, AND HAS NOT DONE SO. 

THE TAXPAYER REFERS US TO VARIOUS STATUTORY PROVISIONS TREATING
ORIGINAL ISSUE DISCOUNT AS ORDINARY INCOME IN SPECIFIC SITUATIONS,
ARGUING THAT THESE ESTABLISH A CONGRESSIONAL UNDERSTANDING THAT IN
SITUATIONS NOT COVERED BY SUCH PROVISIONS, ORIGINAL ISSUE DISCOUNT IS
ENTITLED TO CAPITAL GAINS TREATMENT.  EVEN IF THESE PROVISIONS WERE
MERELY LIMITED APPLICATIONS OF THE PRINCIPLE OF SEC 1232(A)(2), THEY
MAY DEMONSTRATE, NOT THAT THE GENERAL RULE WAS TO THE CONTRARY, BUT
THAT THE GENERAL RULE WAS UNCLEAR, SEE BRANDIS, EFFECT OF DISCOUNT OR
PREMIUM ON BONDHOLDER'S NORTH CAROLINA INCOME TAX, 19 N.C.L. REV. 1, 7
(1940), AND THAT CONGRESS WISHED TO AVOID ANY DOUBT AS TO ITS TREATMENT
OF PARTICULAR SITUATIONS.  CF. S. REP. NO. 1622, 83D CONG., 2D SESS.,
P. 112 (1954). 

FIRST WE ARE REFERRED TO SECS 42(B) AND 42(C) OF THE 1939 CODE. 
(FN6)  SECTION 42(B) APPLIED, INTER ALIA, TO DISCOUNTED NONINTEREST
BEARING OBLIGATIONS PERIODICALLY REDEEMABLE FOR SPECIFIED INCREASING
AMOUNTS, AND PERMITTED CASH-BASIS TAXPAYERS AN ELECTION TO ACCRUE THE
ANNUAL INCREASE.  IF ANYTHING, THE STATUTORY LANGUAGE SUPPORTS THE
GOVERNMENT'S POSITION, FOR IT IMPLIES THAT AN ACCRUAL-BASIS TAXPAYER
HAS NO ELECTION, BUT MUST ACCRUE THE INCREASES; THIS SEEMS TO INDICATE
A CONGRESSIONAL UNDERSTANDING THAT SUCH INCREASES WERE ORDINARY
INCOME.  SECTION 42(C) POSTPONES RECOGNITION OF DISCOUNT ON SHORT-TERM
GOVERNMENT OBLIGATIONS UNTIL MATURITY OR SALE.  THAT PROVISION,
HOWEVER, HAS ITS OWN HISTORY.  EARLIER LAW, REQUIRING THE PRORATION OF
ORIGINAL ISSUE DISCOUNT ACCORDING TO THE TIME THE OBLIGATION WAS HELD,
WAS CONSIDERED TO "IMPOSE ON TAXPAYERS THE DUTY OF MAKING BURDENSOME
COMPUTATIONS."  SEE S. REP. NO. 673, PART 1, 77TH CONG., 1ST SESS., P.
30 (1941).  THE PRORATION PROVISIONS HAD IN TURN SUCCEEDED A STATUTE
ENACTED, NOT TO MAKE AN EXCEPTION TO A GENERAL RULE OF CAPITAL GAINS
TREATMENT FOR ISSUE DISCOUNT, BUT TO INSURE THAT THE THEN-EXISTING
EXEMPTION FOR DISCOUNT AS REPRESENTING INTEREST COULD BE CLAIMED BY
TAXPAYERS OTHER THAN THE ORIGINAL HOLDER.  H.R. CONF. REP. NO. 17, 71ST
CONG., 1ST SESS., P. 2 (1929).  SINCE THE TAX EXEMPTION FOR TREASURY
PAPER WAS ELIMINATED IN 1941, THERE WAS NO LONGER ANY IMPORTANT REASON
TO DISTINGUISH EXEMPT ORIGINAL ISSUE DISCOUNT FROM NONEXEMPT MARKET
DISCOUNT, AND SEC 42(C) WAS ENACTED EXPRESSLY TO SIMPLIFY
ADMINISTRATION BY ELIMINATING THE NECESSITY FOR ALLOCATION BETWEEN
INTEREST AND CAPITAL GAIN OR LOSS, AND TREATING ALL DISCOUNT AS INCOME,
BUT TAXABLE ONLY ON REALIZATION.  (FN7)  IF THE INFERENCES DRAWN BY
RESPONDENT WERE CORRECT, THESE PROVISIONS WOULD BE RENDERED SUPERFLUOUS
BY THE ENACTMENT OF SEC 1232(A)(2), BUT THEY HAVE BEEN CARRIED FORWARD
AS SECS 454(A) AND (B) OF THE 1954 CODE. 

IT IS ALSO ARGUED THAT SECS 201(E) AND 207(D) OF THE 1939 CODE (FN8)
MANIFESTED A CONGRESSIONAL VIEW OPPOSED TO ORDINARY INCOME TREATMENT. 
THESE SECTIONS REQUIRED ANNUAL ACCRUAL OF BOND PREMIUM AND DISCOUNT BY
LIFE AND MUTUAL CASUALTY INSURANCE COMPANIES.  BUT AGAIN, SOMEWHAT LIKE
SEC 42(B), THESE PROVISIONS PROVIDED FOR ACCRUAL BY CASH-BASIS
TAXPAYERS.  SEE MASSACHUSETTS MUTUAL LIFE INS. CO. V. UNITED STATES,
288 U.S. 269.  MOREOVER, THE COMMISSIONER HAD INTERPRETED THESE
PROVISIONS AS REQUIRING HIM TO TREAT MARKET DISCOUNTS OR PREMIUMS, AS
WELL AS INTEREST AGREED UPON BY THE BORROWER IN THE GUISE OF ORIGINAL
ISSUE DISCOUNT, AS ORDINARY INCOME ITEMS.  (FN9) 

THUS, THE TAXPAYER HAS NOT DEMONSTRATED THAT, IN SPECIFYING ORDINARY
INCOME TREATMENT FOR ORIGINAL ISSUE DISCOUNT IN PARTICULAR SITUATIONS,
CONGRESS EVINCED ITS UNDERSTANDING THAT SUCH DISCOUNT WOULD OTHERWISE
BE ENTITLED TO CAPITAL GAINS TREATMENT.  THEREFORE WE TURN TO THE
QUESTION WHETHER TREASURY PRACTICE AND DECISIONAL LAW PRECLUDE ORDINARY
INCOME TREATMENT. 

THE TAXPAYER PREMISES THIS PART OF HIS ARGUMENT PRIMARILY UPON THE
CASE OF CAULKINS V. COMMISSIONER, 1 T.C. 656, ACQ., 1944 CUM. BULL.  5,
AFF'D, 144 F.2D 482 (C.A. 6TH CIR.), ACQ. WITHDRAWN, 1955-1 CUM. BULL. 
7.  (FN10)  THE TAXPAYER THERE PURCHASED AN "ACCUMULATIVE INSTALLMENT
CERTIFICATE" PROVIDING FOR 10 ANNUAL PAYMENTS OF $1,500 IN RETURN FOR
$20,000 AT THE END OF 10 YEARS.  THE CERTIFICATE PROVIDED FOR GRADUALLY
INCREASING CASH SURRENDER AND LOAN VALUES.  IN 1939 THE TAXPAYER
RECEIVED $20,000 AS AGREED AND, RELYING ON THE LONG-TERM CAPITAL GAINS
PROVISIONS OF THE REVENUE ACT OF 1938, C. 289, 52 STAT. 447, REPORTED
ONLY HALF THE PROFIT AS TAXABLE INCOME.  ACTING PRIMARILY ON THE THEORY
THAT THE CERTIFICATE WAS NOT IN REGISTERED FORM AS REQUIRED BY SEC
117(F), THE COMMISSIONER SOUGHT TO TREAT THE INCREMENT AS INTEREST OR
AS INCOME ARISING OUT OF A TRANSACTION ENTERED INTO FOR PROFIT.  THE
TAX COURT UPHELD THE TAXPAYER, FINDING THAT THE CERTIFICATE WAS IN
REGISTERED FORM WITHIN THE MEANING OF SEC 117(F) OF THE REVENUE ACT OF
1938, A PROVISION IDENTICAL TO SEC 117(F) OF THE 1939 CODE, (FN11) BUT
ITS DISCUSSION OF THE CAPITAL GAINS QUESTION IS AT BEST OPAQUE.  (FN12)
THE COURT OF APPEALS ACKNOWLEDGED THAT "THE TRANSACTION PRESENTS NO
TRUE ASPECT OF CAPITAL GAIN" AND THAT "CONGRESS MIGHT WELL HAVE MADE
THE DIFFERENTIATION URGED BY THE COMMISSIONER, SINCE IT IS DIFFICULT TO
PERCEIVE ANY PRACTICAL REASON FOR TAXING INCREMENT OF THE TYPE INVOLVED
HERE DIFFERENTLY FROM ORDINARY INCOME  ...  AS CONSIDERATION PAID FOR
THE USE OF THE AMOUNTS PAID IN  ...  ."  144 F.2D, AT 484. 
NEVERTHELESS IT CONSTRUED THE WORDS "AMOUNTS RECEIVED BY THE HOLDER
UPON  ...  RETIREMENT" IN SEC 117(F) AS UNSUSCEPTIBLE OF PARTITION, AND
THEREFORE AS INCLUDING THE INCREMENT ATTRIBUTABLE TO INTEREST, WHICH,
WITH THE PRINCIPAL AMOUNT, WAS THUS TAXABLE ONLY AS CAPITAL GAIN. 

CAULKINS DID NOT UNAMBIGUOUSLY ESTABLISH THAT ORIGINAL ISSUE DISCOUNT
WAS ITSELF A "CAPITAL ASSET" ENTITLED TO CAPITAL GAINS TREATMENT.  IT
HELD ONLY THAT UNDER SEC 117(F) CONGRESS HAD NOT PROVIDED THAT THE
"AMOUNT" RECEIVED ON RETIREMENT MIGHT BE BROKEN DOWN INTO ITS COMPONENT
PARTS.  THIS WAS INCONSISTENT WITH THE VIEW EXPRESSED IN WILLIAMS V.
MCGOWAN, 152 F.2D 570 (C.A.2D CIR.), AND APPROVED BY THIS COURT IN
WATSON V. COMMISSIONER, SUPRA, AT 552, THAT "CONGRESS PLAINLY DID MEAN
TO COMMINUTE THE ELEMENTS OF A BUSINESS; PLAINLY IT DID NOT REGARD THE
WHOLE AS 'CAPITAL ASSETS.'"  152 F.2D, AT 572.  THE TAX COURT HAS
CONSISTENTLY REGARDED CAULKINS AS HAVING ERRONEOUSLY READ SEC 117(F) TO
PRECLUDE DIFFERENTIATION OF THE SOURCES OF PROCEEDS ON REDEMPTION. 
PAINE V. COMMISSIONER, 23 T.C.  391, 401, REVERSED ON OTHER GROUNDS,
236 F.2D 298 (C.A. 8TH CIR.); STANTON V. COMMISSIONER, 34 T.C.1; SEE 3B
MERTENS, THE LAW OF FEDERAL INCOME TAXATION 184-186, 378-381 (ZIMET
REV.).  THE COMMISSIONER, IN ADDITION TO WITHDRAWING HIS ACQUIESCENCE
IN CAULKINS, HAS ALSO REJECTED THE INTERPRETATION OF "AMOUNT" UNDER
SEC. 117(F) AS NOT SUBJECT TO APPORTIONMENT UNDER GENERAL PRINCIPLES. 
REV. RUL. 119, 1953-2 CUM. BULL.  95; REV. RUL. 55-136, 1955-1 CUM.
BULL.  213; REV. RUL. 56-299, 1956-1 CUM. BULL.  603.  TO THE EXTENT
THE TAX COURT'S DECISION IN CAULKINS RESTED, AS ITS OPINION INDICATES,
ON A READING OF SEC 117(F) TO REQUIRE MORE FAVORABLE TREATMENT ON
REDEMPTION THAN ON SALE, IT IS CLEARLY AT ODDS WITH THE LEGISLATIVE
PURPOSE, WHICH WAS MERELY TO TREAT ALIKE REDEMPTIONS AND SALES OR
EXCHANGES OF SECURITIES IN REGISTERED FORM OR WITH COUPONS ATTACHED,
AND NOT TO EXTEND THE CLASS OF CAPITAL ASSETS.  REV. RUL. 56-299,
SUPRA.  SUCH AN INTERPRETATION, WHICH WOULD NOT BENEFIT THE TAXPAYER IN
THE SALE TRANSACTIONS HERE INVOLVED, MAY UNDERLIE THE TAX COURT'S
DECISION BUT IT HAS NO JUSTIFICATION IN LOGIC OR IN THE LEGISLATIVE
HISTORY, AND EVEN THE TAXPAYER WOULD REJECT SUCH A MEANING, HOWEVER
WELL SUPPORTED BY THE CAULKINS ACQUIESCENCE.  FINALLY, NOTWITHSTANDING
THE ACQUIESCENCE, WHAT LITTLE OTHER ADMINISTRATIVE PRACTICE WE ARE
REFERRED TO SEEMS CONTRARY TO CAULKINS.  SEE I.T. 1684, II-1 CUM.
BULL.  60 (1923).    THE CONCEPT OF DISCOUNT OR PREMIUM AS ALTERING THE
EFFECTIVE RATE OF INTEREST IS NOT TO BE REJECTED AS AN "ESOTERIC
CONCEPT DERIVED FROM SUBTLE AND THEORETIC ANALYSIS."  OLD COLONY R. CO
V. COMMISSIONER, 284 U.S. 552, 561.  FOR, DESPITE SOME EXPRESSIONS
INDICATING A CONTRARY VIEW, (FN13) THIS COURT HAS OFTEN RECOGNIZED THE
ECONOMIC FUNCTION OF DISCOUNT AS INTEREST.  IN OLD MISSION CO. V.
HELVERING, 293 U.S. 289, 290, FOR EXAMPLE, THE COURT REGARDED IT AS "NO
LONGER OPEN TO QUESTION THAT AMORTIZED BOND DISCOUNT MAY BE DEDUCTED IN
THE SEPARATE RETURN OF A SINGLE TAXPAYER."  (FN14) THE RADICAL CHANGES
SINCE CAULKINS IN THE CONCEPT OF TREATMENT OF ACCUMULATED INTEREST
UNDER THE 1939 CODE ARE CONSISTENT WITH THIS.  FOR EXAMPLE, ACCRUED
BOND INTEREST ON STATED INTEREST BONDS SOLD BETWEEN INTEREST DATES HAS
LONG BEEN TAXABLE TO THE SELLER OF THE BONDS.  SEE I.T.  3175, 1938-1
CUM. BULL.  200.  BUT ON "FLAT" SALES OF DEFAULTED NOTES AT PRICES IN
EXCESS OF FACE AMOUNT, WITH NO ATTRIBUTION OF INTEREST ARREARAGES IN
THE SALE PRICE, THE REQUIREMENT OF ALLOCATION TO TREAT A PORTION OF THE
PROCEEDS AS ORDINARY INCOME DATES ONLY FROM 1954.  FISHER V.
COMMISSIONER, 209 F.2D 513 (C.A. 6TH CIR.); SEE JAGLOM V. COMMISSIONER,
303 F.2D 847 (C.A.2D CIR.).  THE PROPRIETY OF SUCH ALLOCATION IN THE
PRESENT CASE IS EVEN MORE EVIDENT; UNLIKE DEFAULTED BOND INTEREST,
THERE IS NO SUGGESTION THAT FULL PAYMENT OF THE ORIGINAL ISSUE DISCOUNT
WILL NOT BE MADE AT MATURITY. 

FOR THESE REASONS WE HOLD THAT EARNED ORIGINAL ISSUE DISCOUNT IS NOT
ENTITLED TO CAPITAL GAINS TREATMENT UNDER THE 1939 CODE.  REVERSED. 

FN1  THE ORIGINAL PLAINTIFF, INDUSTRIAL RAYON CORPORATION, WAS MERGED
INTO RESPONDENT MIDLAND-ROSS CORPORATION IN 1961.  DURING 1952, 1953,
AND 1954, INDUSTRIAL'S IDLE FUNDS WERE USED TO PURCHASE 13 NONINTEREST
BEARING NOTES, VARYING IN FACE AMOUNT FROM $500,000 TO $2,000,000, FROM
GENERAL MOTORS ACCEPTANCE CORPORATION, COMMERCIAL INVESTMENT TRUST
COMPANY AND COMMERCIAL CREDIT COMPANY.  THE ORIGINAL ISSUE DISCOUNT IN
MOST INSTANCES WAS CALCULATED TO YIELD THE EQUIVALENT OF 2% TO 2 1/2%
ON AN ANNUAL BASIS IF THE NOTE WERE HELD TO MATURITY, AND THE GAINS ON
SALE APPROXIMATED THE DISCOUNT EARNED TO DATE.  IT IS NOT CONTENDED
THAT ANY PART OF THE GAIN WAS ATTRIBUTABLE TO MARKET FLUCTUATIONS AS
OPPOSED TO THE PASSAGE OF TIME. 

FN2  REAL ESTATE INVESTMENT TRUST OF AMERICA V. COMMISSIONER, 334
F.2D 986 (C.A. 1ST CIR.), PETITION FOR WRIT OF CERTIORARI PENDING, NO.
620; DIXON V. UNITED STATES, 333 F.2D 1016 (C.A.2D CIR.), AFFIRMED,
POST, P. 68; ROSEN V. UNITED STATES, 288 F.2D 658 (C.A. 3D CIR.);
UNITED STATES V. HARRISON, 304 F.2D 835 (C.A. 5TH CIR.); COMMISSIONER
V. MORGAN, 272 F.2D 936 (C.A. 9TH CIR.).  SEE ALSO PATTIZ V. UNITED
STATES, 160 CT. CL. 121, 311 F.2D 947; SCHWARTZ V. COMMISSIONER, 40
T.C. 191; LEAVIN V. COMMISSIONER, 37 T.C. 766; GIBBONS V. COMMISSIONER,
37 T.C. 569. 

FN3  "SEC.  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  ...  ." 

FN4  OUR DISPOSITION MAKES IT UNNECESSARY TO DECIDE CERTAIN QUESTIONS
RAISED AT ARGUMENT, AS TO WHICH WE INTIMATE NO VIEW: 

(1)  SINCE EACH NOTE WAS SOLD IN THE YEAR OF PURCHASE, WE DO NOT
REACH THE QUESTION WHETHER AN ACCRUAL-BASIS TAXPAYER IS REQUIRED TO
REPORT DISCOUNT EARNED BEFORE THE FINAL DISPOSITION OF AN OBLIGATION: 

(2)  SINCE NO ARGUMENT IS MADE THAT THE GAIN ON THE SALE OF EACH NOTE
VARIED SIGNIFICANTLY FROM THE PORTION OF THE ORIGINAL ISSUE DISCOUNT
EARNED DURING THE HOLDING PERIOD, WE DO NOT REACH THE QUESTION OF THE
TAX TREATMENT UNDER THE 1939 CODE OF "MARKET DISCOUNT" ARISING FROM
POST-ISSUE PURCHASES AT PRICES VARYING FROM ISSUE PRICE PLUS A RATABLE
PORTION OF THE ORIGINAL ISSUE DISCOUNT, OR OF THE TAX TREATMENT OF
GAINS PROPERLY ATTRIBUTABLE TO FLUCTUATIONS IN THE INTEREST RATE AND
MARKET PRICE OF OBLIGATIONS AS DISTINGUISHED FROM THE ANTICIPATED
INCREASE RESULTING FROM MERE PASSAGE OF TIME. 

FN5  "SALE OR EXCHANGE. 

"(A)  AS AMENDED BY SEC 50(A), TECHNICAL AMENDMENTS ACT OF 1958, PUB.
L. 85-866, 72 STAT. 1606 GENERAL RULE.  - EXCEPT AS PROVIDED IN
SUBPARAGRAPH (B), UPON SALE OR EXCHANGE OF BONDS OR OTHER EVIDENCES OF
INDEBTEDNESS ISSUED AFTER DECEMBER 31, 1954, HELD BY THE TAXPAYER MORE
THAN 6 MONTHS, ANY GAIN REALIZED WHICH DOES NOT EXCEED: 

   *         *         *         *         * 

"(II)  ...  AN AMOUNT WHICH BEARS THE SAME RATIO TO THE ORIGINAL
ISSUE DISCOUNT (AS DEFINED IN SUBSECTION (B)) AS THE NUMBER OF COMPLETE
MONTHS THAT THE BOND OR OTHER EVIDENCE OF INDEBTEDNESS WAS HELD BY THE
TAXPAYER BEARS TO THE NUMBER OF COMPLETE MONTHS FROM THE DATE OF
ORIGINAL ISSUE TO THE DATE OF MATURITY: 

"SHALL BE CONSIDERED AS GAIN FROM THE SALE OR EXCHANGE OF PROPERTY
WHICH IS NOT A CAPITAL ASSET.  GAIN IN EXCESS OF SUCH AMOUNT SHALL BE
CONSIDERED GAIN FROM THE SALE OR EXCHANGE OF A CAPITAL ASSET HELD MORE
THAN 6 MONTHS." 

BETWEEN THE ISSUE PRICE AND THE STATED REDEMPTION PRICE AT MATURITY
...  ." 

WE INTIMATE NO VIEW ON THE CONSTRUCTION OF THIS STATUTE.  IN
PARTICULAR, WE IMPLY NO VIEW UPON THE COMMISSIONER'S IMPLICIT
CONTENTION THAT ACCRUAL-BASIS TAXPAYERS ARE REQUIRED TO REPORT DISCOUNT
AS EARNED PRIOR TO FINAL DISPOSITION OF OBLIGATIONS ACQUIRED AFTER
DECEMBER 31, 1954.  CF. LUBIN V. COMMISSIONER, SUPRA. 

FN6  "SEC.  42.  PERIOD IN WHICH ITEMS OF GROSS INCOME INCLUDED. 

     *         *         *         *         * 

"(B)  NONINTEREST-BEARING OBLIGATIONS ISSUED AT DISCOUNT.  - IF, IN
THE CASE OF A TAXPAYER OWNING ANY NONINTEREST-BEARING OBLIGATION ISSUED
AT A DISCOUNT AND REDEEMABLE FOR FIXED AMOUNTS INCREASING AT STATED
INTERVALS OR OWNING AN OBLIGATION DESCRIBED IN PARAGRAPH (2) OF
SUBSECTION (D), THE INCREASE IN THE REDEMPTION PRICE OF SUCH OBLIGATION
OCCURRING IN THE TAXABLE YEAR DOES NOT (UNDER THE METHOD OF ACCOUNTING
USED IN COMPUTING HIS NET INCOME) CONSTITUTE INCOME TO HIM IN SUCH
YEAR, SUCH TAXPAYER MAY, AT HIS ELECTION MADE IN HIS RETURN FOR ANY
TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1940, TREAT SUCH INCREASE AS
INCOME RECEIVED IN SUCH TAXABLE YEAR  ...  .  IN THE CASE OF ANY SUCH
OBLIGATIONS OWNED BY THE TAXPAYER AT THE BEGINNING OF THE FIRST TAXABLE
YEAR TO WHICH HIS ELECTION APPLIES, THE INCREASE IN THE REDEMPTION
PRICE OF SUCH OBLIGATIONS OCCURRING BETWEEN THE DATE OF ACQUISITION
...  AND THE FIRST DAY OF SUCH TAXABLE YEAR SHALL ALSO BE TREATED AS
INCOME RECEIVED IN SUCH TAXABLE YEAR. 

"(C) SHORT-TERM OBLIGATIONS ISSUED ON DISCOUNT BASIS.  - IN THE CASE
OF ANY OBLIGATION OF THE UNITED STATES OR ANY OF ITS POSSESSIONS, OR OF
A STATE OR TERRITORY, OR ANY POLITICAL SUBDIVISION THEREOF, OR OF THE
DISTRICT OF COLUMBIA, ISSUED ON OR AFTER MARCH 1, 1941, ON A DISCOUNT
BASIS AND PAYABLE WITHOUT INTEREST AT A FIXED MATURITY DATE NOT
EXCEEDING ONE YEAR FROM THE DATE OF ISSUE, THE AMOUNT OF DISCOUNT AT
WHICH SUCH OBLIGATION IR ORIGINALLY SOLD SHALL NOT BE CONSIDERED TO
ACCRUE UNTIL THE DATE ON WHICH SUCH OBLIGATION IS PAID AT MATURITY,
SOLD, OR OTHERWISE DISPOSED OF." 

FN7  SINCE THE STATUTE APPLIED ONLY TO PAPER WITH MATURITY OF A YEAR
OR LESS, THE SIMPLIFICATION RESULTING FROM RECOGNIZING INCOME ONLY ON
REALIZATION OUTWEIGHED THE POSSIBLE SHIFTING OF INCOME BETWEEN TAX
YEARS BY ACCRUAL-BASIS TAXPAYERS.  AT THE SAME TIME, SHORT-TERM
GOVERNMENT PAPER WAS EXCLUDED FROM THE DEFINITION OF "CAPITAL ASSET" IN
SEC 117(A)(1)(D) OF THE 1939 CODE, AVOIDING THE NECESSITY OF SEPARATING
OUT THE AMOUNT OF PROCEEDS ATTRIBUTABLE TO MARKET FLUCTUATIONS RATHER
THAN EARNED DISCOUNT.  THIS EXCLUSION IS CARRIED FORWARD AS SEC 1221(5)
OF THE 1954 CODE. 

FN8  "SEC.  201.  LIFE INSURANCE COMPANIES. 

     *         *         *         *         * 

"(E)  AMORTIZATION OF PREMIUM AND ACCRUAL OF DISCOUNT.  - THE GROSS
INCOME, THE DEDUCTION PROVIDED IN SECTION 201(C)(7)(A) AND THE CREDIT
ALLOWED AGAINST NET INCOME IN SECTION 26(A) SHALL EACH BE DECREASED BY
THE APPROPRIATE AMORTIZATION OF PREMIUM AND INCREASED BY THE
APPROPRIATE ACCRUAL OF DISCOUNT ATTRIBUTABLE TO THE TAXABLE YEAR ON
BONDS, NOTES, DEBENTURES OR OTHER EVIDENCES OF INDEBTEDNESS HELD BY A
LIFE INSURANCE COMPANY.  SUCH AMORTIZATION AND ACCRUAL SHALL BE
DETERMINED (1) IN ACCORDANCE WITH THE METHOD REGULARLY EMPLOYED BY SUCH
COMPANY, IF SUCH METHOD IS REASONABLE, AND (2) IN ALL OTHER CASES, IN
ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE COMMISSIONER WITH THE
APPROVAL OF THE SECRETARY. 

     *         *         *         *      * 

"SEC. 207.  MUTUAL INSURANCE COMPANIES OTHER THAN LIFE OR MARINE. 

     *         *         *         *   * 

"(D)  AMORTIZATION OF PREMIUM AND ACCRUAL OF DISCOUNT.  - THE GROSS
AMOUNT OF INCOME DURING THE TAXABLE YEAR FROM INTEREST, THE DEDUCTION
PROVIDED IN SUBSECTION (B)(4)(A), AND THE CREDIT ALLOWED AGAINST NET
INCOME IN SECTION 26(A) SHALL EACH BE DECREASED BY THE APPROPRIATE
AMORTIZATION OF PREMIUM AND INCREASED BY THE APPROPRIATE ACCRUAL OF
DISCOUNT ATTRIBUTABLE TO THE TAXABLE YEAR ON BONDS, NOTES, DEBENTURES
OR OTHER EVIDENCES OF INDEBTEDNESS HELD BY A MUTUAL INSURANCE COMPANY
SUBJECT TO THE TAX IMPOSED BY THIS SECTION.  SUCH AMORTIZATION AND
ACCRUAL SHALL BE DETERMINED (1) IN ACCORDANCE WITH THE METHOD REGULARLY
EMPLOYED BY SUCH COMPANY, IF SUCH METHOD IS REASONABLE, AND (2) IN ALL
OTHER CASES, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE
COMMISSIONER WITH THE APPROVAL OF THE SECRETARY." 

FN9  THIS PROVISION WAS ELIMINATED AND THE LIFE INSURANCE PROVISION
AMENDED BY THE REVENUE ACT OF 1964, SEC 228, 78 STAT. 19, 98-99,
AMENDING SECS 818(B), 822(D)(2) OF THE 1954 CODE.  SEE S. REP. NO. 830,
88TH CONG., 2D SESS., PP. 122-124, FOR A DETAILED EXPLANATION. 

FN10  WE CONSIDER THE DECISIONS AND ACQUIESCENCE ONLY AS EVIDENCE OF
THE EARLIER UNDERSTANDING OF THE TAX LAW.  WITH RESPECT TO THE CLAIM OF
A PARTICULAR TAXPAYER THAT HE RELIED TO HIS DETRIMENT ON THE
ACQUIESCENCE, SEE DIXON V. UNITED STATES, POST, P. 68. 

FN11  "RETIREMENT OF BONDS, ETC. - FOR THE PURPOSES OF THIS CHAPTER,
AMOUNTS RECEIVED BY THE HOLDER UPON THE RETIREMENT OF BONDS,
DEBENTURES, NOTES, OR CERTIFICATES OR OTHER EVIDENCES OF INDEBTEDNESS
ISSUED BY ANY CORPORATION (INCLUDING THOSE ISSUED BY A GOVERNMENT OR
POLITICAL SUBDIVISION THEREOF), WITH INTEREST COUPONS OR IN REGISTERED
FORM, SHALL BE CONSIDERED AS AMOUNTS RECEIVED IN EXCHANGE THEREFOR." 

FN12  THE ENTIRE DISCUSSION OF THE CAPITAL GAINS QUESTION IS AS
FOLLOWS: 

"PRIOR TO THE ENACTMENT OF THE REVENUE ACT OF 1934, THE PAYMENT OF A
BOND BY THE CORPORATION ISSUING IT WAS HELD TO BE BUT THE FULFILLMENT
OF A CONTRACTUAL OBLIGATION TO REPAY MONEY IN ACCORDANCE WITH THE FIXED
TERMS OF THE OBLIGATION AND NOT A SALE OR EXCHANGE OF A CAPITAL ASSET. 
FAIRBANKS V. UNITED STATES, 306 U.S. 436; FELIN V. KYLE, 102 FED. (2D)
349; JOHN H. WATSON, JR., 27 B.T.A. 463; ARTHUR E. BRAUN, TRUSTEE, 29
B.T.A. 1161; FRANK J. COBBS, 39 B.T.A. 642; PETITION TO REVIEW
DISMISSED, 111 FED. (2D) 644.  SECTION 117(F), SUPRA, APPEARED FOR THE
FIRST TIME IN THE REVENUE ACT OF 1934.  IN MCCLAIN V. COMMISSIONER, 311
U.S. 527, THE SUPREME COURT SAID: 'IT IS PLAIN THAT CONGRESS INTENDED
BY THE NEW SUB-SECTION (F) TO TAKE OUT OF THE BAD DEBT PROVISION
CERTAIN TRANSACTIONS AND TO PLACE THEM IN THE CATEGORY OF CAPITAL GAINS
AND LOSSES.'  THIS TRIBUNAL HAS HELD THAT BY A PARITY OF REASONING
CONGRESS ALSO INTENDED TO TAKE OUT OF THE ORDINARY INCOME PROVISIONS OF
THE REVENUE ACT GAINS REALIZED BY A TAXPAYER IN CONNECTION WITH THE
RETIREMENT OF THE SPECIFIED OBLIGATIONS.  WILLIAM H. NOLL, 43 B.T.A.
496."  1 T.C., AT 660-661. 

IT THUS SEEMS UNCLEAR WHETHER THE ACQUIESCENCE RELATED TO THE
ESSENTIALLY UNCONTESTED CAPITAL GAINS QUESTION, AND WHETHER THE
DECISION WAS MEANT TO APPLY BEYOND THE NARROW CONFINES OF SEC 117(F). 
SEE DIXON V. UNITED STATES, POST, AT 76-79. 

FN13  SEE, E.G., NEW YORK LIFE INS. CO. V. EDWARDS, 271 U.S. 109,
116; OLD COLONY R. CO. V. COMMISSIONER, SUPRA.  THOUGH THESE BOND
PREMIUM CASES ARE SAID TO BE INCONSISTENT WITH THE VIEW TAKEN HERE,
THEY ARE EQUALLY INCONSISTENT WITH THE TREATMENT OF DISCOUNT TO THE
BORROWER. 

FN14  SEE ALSO HELVERING V. UNION PACIFIC R. CO., 293 U.S. 282, 285,
288; WESTERN MARYLAND R. CO. V. COMMISSIONER, 33 F.2D 695, 696 (C.A.
4TH CIR.); LONGVIEW HILTON HOTEL CO. V. COMMISSIONER, 9 T.C. 180, 182. 

..END :

















DIXON V. UNITED STATES 381 U.S. 68 


NO. 486.  ARGUED MARCH 30-31, 1965 - DECIDED MAY 3, 1965 - 333 F.2D
1016, AFFIRMED. 


A PARTNERSHIP TO WHICH PETITIONERS BELONG, IN 1952 BOUGHT SHORT-TERM
NONINTEREST-BEARING NOTES AT DISCOUNTS.  THE PURCHASES WERE ASSERTEDLY
MADE IN RELIANCE ON THE PUBLISHED ACQUIESCENCE OF THE COMMISSIONER OF
INTERNAL REVENUE IN CAULKINS V. COMMISSIONER, 1 T.C.  656, AFF'D 144
F.2D 482, WHERE THE TAX COURT HAD ALLOWED CAPITAL GAINS TREATMENT OF
THE FULL AMOUNT A TAXPAYER HAD RECEIVED ON AN "ACCUMULATIVE INSTALLMENT
CERTIFICATE."  AFTER HOLDING THE NOTES SIX MONTHS THEY DISPOSED OF SOME
AT A GAIN BEFORE THE END OF THE TAX YEAR AND THE BALANCE IN THE NEXT
TAX YEAR.  THE PARTNERSHIP REPORTED THE GAIN AS A LONG-TERM CAPITAL
GAIN AND, ALTHOUGH ON AN ACCRUAL BASIS, DID NOT ACCRUE ANY INCOME FOR
THE NOTES UNSOLD THAT YEAR.  PETITIONERS' INDIVIDUAL RETURNS REFLECTED
THE SAME TREATMENT FOR THEIR DISTRIBUTIVE SHARES OF THE PARTNERSHIP
INCOME.  THE COMMISSIONER SUBSEQUENTLY WITHDREW HIS ACQUIESCENCE IN
CAULKINS EXCEPT WITH RESPECT TO DEBT SECURITIES THAT WERE (A) OF THE
SPECIFIC TYPE INVOLVED IN CAULKINS, AND (B) ISSUED BY THE PARTICULAR
ISSUER INVOLVED IN THAT CASE.  THE COMMISSIONER DETERMINED THAT
PETITIONERS' GAIN WAS TAXABLE AS ORDINARY INCOME AND THAT A PORTION OF
THE ORIGINAL ISSUE DISCOUNT ON THE UNSOLD NOTES WAS REPORTABLE AS
EARNED IN THE TAX YEAR.  PETITIONERS PAID THE DEFICIENCIES AND SUED FOR
REFUND.  RESPONDENT PREVAILED IN THE DISTRICT COURT AND THE COURT OF
APPEALS.  HELD: 

1.  ORIGINAL ISSUE DISCOUNT IS NOT ENTITLED TO CAPITAL GAINS
TREATMENT UNDER THE 1939 INTERNAL REVENUE CODE.  UNITED STATES V.
MIDLAND-ROSS CORP., ANTE, P. 54, FOLLOWED.  P. 70. 

2.  THE COMMISSIONER'S ACQUIESCENCE IN AN ERRONEOUS DECISION OF THE
TAX COURT CANNOT BY ITSELF BAR COLLECTION OF A TAX OTHERWISE LAWFULLY
DUE; THE COMMISSIONER HAS DISCRETION UNDER SEC 7805(B) OF THE INTERNAL
REVENUE CODE OF 1954 RETROACTIVELY TO WITHDRAW AN ACQUIESCENCE, AND HE
MAY DO SO EVEN WHERE A TAXPAYER MAY HAVE DETRIMENTALLY RELIED ON THE
COMMISSIONER'S MISTAKE.  PP. 70-75. 

3.  THE COMMISSIONER DID NOT ABUSE HIS DISCRETION IN THIS CASE BY
GIVING RETROACTIVE EFFECT TO THE WITHDRAWAL OF HIS ACQUIESCENCE.  PP.
75-80. 

(A)  NO NOTICE THAT HE WAS ABOUT TO CORRECT HIS MISTAKE OF LAW WAS
REQUIRED IN THE RELEVANT TAX YEAR SINCE THE PETITIONERS WERE NOT
JUSTIFIED IN RELYING ON THE ACQUIESCENCE AS PRECLUDING CORRECTION.  P.
76. 

(B)  SINCE THE COMMISSIONER'S ACQUIESCENCE IN CAULKINS SHOULD NOT
HAVE BEEN READ AS CONSTITUTING ACCEPTANCE OF THE GENERAL PROPOSITION
THAT EARNED ORIGINAL ISSUE DISCOUNT WAS ENTITLED TO CAPITAL GAINS
TREATMENT, THE REVOCATION OF HIS ACQUIESCENCE WAS NOT A REPUDIATION OF
HIS EARLIER ACCEPTANCE OF A DECISION THAT PRESCRIBED CAPITAL GAINS
TREATMENT FOR THE ORIGINAL ISSUE DISCOUNT HERE INVOLVED; CONSEQUENTLY,
HIS EXCEPTION OF SPECIFIC CERTIFICATES OF THE TYPE INVOLVED IN CAULKINS
FROM THE RETROACTIVE APPLICATION OF HIS NONACQUIESCENCE COULD NOT
CONSTITUTE AN ABUSE OF DISCRETION OF WHICH PETITIONERS MAY COMPLAIN. 
PP. 76-79. 

(C)  IN ANY EVENT PETITIONERS DID NOT SATISFY THEIR BURDEN OF SHOWING
THAT THOSE SECURITIES COULD NOT RATIONALLY BE DISTINGUISHED FROM OTHER
DISCOUNTED SECURITIES.  PP. 79-80. 

DIXON ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE ISSUE DECIDED TODAY IN UNITED STATES V.
MIDLAND-ROSS CORP., NO. 628, ANTE, P. 54.  PETITIONERS ARE MEMBERS OF A
PARTNERSHIP WHICH, DURING THE TAX YEAR 1952, BOUGHT 33 SHORT-TERM
NONINTEREST-BEARING NOTES FROM ISSUERS AT DISCOUNTS BETWEEN 2 3/8% AND
3 3/4% OF FACE VALUE.  THE NOTES HAD MATURITIES RANGING FROM 190 TO 272
DAYS.  THEIR TOTAL FACE VALUE WAS $43,050,000, AND THE TOTAL ISSUE
PRICE WAS $42,222,357.  THE PARTNERSHIP SOLD 20 OF THE 33 NOTES BEFORE
THE END OF THE TAX YEAR BUT AFTER HAVING HELD THEM FOR MORE THAN SIX
MONTHS, REALIZING A GAIN OF $494,528.  THE REMAINING 13 NOTES WERE
DISPOSED OF IN THE NEXT TAX YEAR.  IN ITS 1952 RETURN THE PARTNERSHIP
REPORTED THE $494,528 GAIN AS A LONG-TERM CAPITAL GAIN, AND, ALTHOUGH
ON THE ACCRUAL BASIS, DID NOT ACCRUE ANY INCOME ON ACCOUNT OF THE 13
UNSOLD NOTES.  PETITIONERS' INDIVIDUAL INCOME TAX RETURNS REFLECTED THE
SAME TREATMENT FOR THEIR RESPECTIVE DISTRIBUTIVE SHARES OF THE
PARTNERSHIP INCOME DERIVED FROM THE SALE OF THE NOTES. 

THE COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THE GAIN
REALIZED WAS TAXABLE AS ORDINARY INCOME, AND ALSO THAT A PORTION OF THE
ORIGINAL ISSUE DISCOUNT ON THE 13 UNSOLD NOTES WAS EARNED AND
REPORTABLE AS ORDINARY INCOME FOR 1952.  (FN1)  PETITIONERS PAID THE
RESULTING DEFICIENCIES, AND IN THIS SUIT FOR REFUND THE UNITED STATES
PREVAILED IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
224 F. SUPP. 358, AND IN THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
333 F.2D 1016.  WE BROUGHT THE CASE HERE ON CERTIORARI, 379 U.S. 943,
TO RESOLVE A CONFLICT WITH UNITED STATES V. MIDLAND-ROSS CORP., SUPRA.
WE AFFIRM. 

OUR HOLDING TODAY IN MIDLAND-ROSS THAT ORIGINAL ISSUE DISCOUNT IS NOT
ENTITLED TO CAPITAL GAINS TREATMENT UNDER THE 1939 INTERNAL REVENUE
CODE REQUIRES THAT WE AFFIRM THE RESULT BELOW UNLESS AN AFFIRMANCE IS
PRECLUDED BY AN ARGUMENT MADE HERE AND NOT IN MIDLAND-ROSS.  THE
PETITIONERS CONTEND THAT IN PURCHASING THE NOTES THEY RELIED UPON THE
COMMISSIONER'S PUBLISHED ACQUIESCENCE IN THE TAX COURT'S DECISION IN
CAULKINS V. COMMISSIONER, 1 T.C. 656, AFF'D 144 F.2D 482, NOT WITHDRAWN
UNTIL THE TRANSACTION WAS CLOSED, (FN2) WHICH ACQUIESCENCE WOULD
REQUIRE TREATING THE GAIN REALIZED AS GAIN ON THE SALE OR EXCHANGE OF A
CAPITAL ASSET.  ALTHOUGH PETITIONERS CONCEDE THAT UNDER SEC 7805(B) OF
THE INTERNAL REVENUE CODE OF 1954 THE COMMISSIONER HAS DISCRETION TO
APPLY THE WITHDRAWAL OF THE ACQUIESCENCE RETROACTIVELY, CF. AUTOMOBILE
CLUB OF MICHIGAN V. COMMISSIONER, 353 U.S. 180, THEY CONTEND THAT HE
ABUSED HIS DISCRETION IN THIS CASE. 


"RETROACTIVITY OF REGULATIONS OR RULINGS.  - THE SECRETARY OF THE
TREASURY OR HIS DELEGATE MAY PRESCRIBE THE EXTENT, IF ANY, TO WHICH ANY
RULING OR REGULATION, RELATING TO THE INTERNAL REVENUE LAWS, SHALL BE
APPLIED WITHOUT RETROACTIVE EFFECT."  (FN3) 

IN CAULKINS THE TAX COURT ALLOWED CAPITAL GAINS TREATMENT OF THE FULL
AMOUNT RECEIVED BY THE TAXPAYER UPON THE RETIREMENT OF AN "ACCUMULATIVE
INSTALLMENT CERTIFICATE," A DEBT SECURITY UNDER WHICH THE LENDER MADE
10 ANNUAL REMITTANCES TO THE BORROWER IN THE AMOUNT OF $1,500 EACH IN
RETURN FOR A PAYMENT OF $20,000 IN THE TENTH YEAR.  SEE UNITED STATES
V. MIDLAND-ROSS CORP., SUPRA, AT 63.  THIS RESULT GAVE CAPITAL GAINS
TREATMENT TO AN AMOUNT CORRESPONDING TO BUT NOT IN THE FORM OF ORIGINAL
ISSUE DISCOUNT.  THE BASIS FOR THIS RESULT WAS AN INTERPRETATION OF SEC
117(F) OF THE REVENUE ACT OF 1938, C. 289, 52 STAT. 447, WHICH WAS RE
ENACTED AS SEC 117(F) OF THE 1939 CODE, AND WHICH PROVIDED THAT
"AMOUNTS RECEIVED BY THE HOLDER UPON THE RETIREMENT OF BONDS,
DEBENTURES, NOTES, OR CERTIFICATES OR OTHER EVIDENCES OF INDEBTEDNESS
...  WITH INTEREST COUPONS OR IN REGISTERED FORM, SHALL BE CONSIDERED
AS AMOUNTS RECEIVED IN EXCHANGE THEREFOR."  THE COMMISSIONER'S 1955
WITHDRAWAL OF HIS ACQUIESCENCE IN THE TAX COURT'S DECISION IN CAULKINS
WAS MADE RETROACTIVE AS A GENERAL MATTER, BUT AN EXCEPTION WAS MADE FOR
"AMOUNTS RECEIVED UPON REDEMPTION OF ACCUMULATIVE INSTALLMENT
CERTIFICATES ISSUED BY INVESTORS SYNDICATE WHICH WERE PURCHASED DURING
THE PERIOD BEGINNING DECEMBER 25, 1944, THE DATE ACQUIESCENCE IN THE
CAULKINS CASE WAS ANNOUNCED AND MARCH 14, 1955, THE DATE THIS REVENUE
RULING IS PUBLISHED  ...  ."  (FN4)  THE EXCEPTION THUS COVERED ONLY
THE DEBT SECURITIES OF THE SPECIFIC TYPE INVOLVED IN CAULKINS, AND
ISSUED BY THE PARTICULAR ISSUER THERE INVOLVED. 

IN AUTOMOBILE CLUB OF MICHIGAN V. COMMISSIONER, SUPRA, AT 183-184, WE
HELD THAT THE COMMISSIONER IS EMPOWERED RETROACTIVELY TO CORRECT
MISTAKES OF LAW IN THE APPLICATION OF THE TAX LAWS TO PARTICULAR
TRANSACTIONS.  (FN5) 

HE MAY DO SO EVEN WHERE A TAXPAYER MAY HAVE RELIED TO HIS DETRIMENT ON
THE COMMISSIONER'S MISTAKE.   SEE MANHATTAN GENERAL EQUIPMENT CO. V.
COMMISSIONER, 297 U.S. 129.  THIS PRINCIPLE IS NO MORE THAN A
REFLECTION OF THE FACT THAT CONGRESS, NOT THE COMMISSIONER, PRESCRIBES
THE TAX LAWS.  THE COMMISSIONER'S RULINGS HAVE ONLY SUCH FORCE AS
CONGRESS CHOOSES TO GIVE THEM, AND CONGRESS HAS NOT GIVEN THEM THE
FORCE OF LAW.  CONSEQUENTLY IT WOULD APPEAR THAT THE COMMISSIONER'S
ACQUIESCENCE IN AN ERRONEOUS DECISION, PUBLISHED AS A RULING, CANNOT IN
AND OF ITSELF BAR THE UNITED STATES FROM COLLECTING A TAX OTHERWISE
LAWFULLY DUE. 

BUT PETITIONERS POINT TO PREFATORY STATEMENTS IN THE INTERNAL REVENUE
BULLETINS FOR 1952 AND OTHER YEARS STATING THAT TAX COURT DECISIONS
ACQUIESCED IN "SHOULD BE RELIED UPON BY OFFICERS AND EMPLOYEES OF THE
BUREAU OF INTERNAL REVENUE AS PRECEDENTS IN THE DISPOSITION OF OTHER
CASES."  SEE, E.G., 1952-1 CUM. BULL.  IV.  THESE ARE MERELY GUIDELINES
FOR BUREAU PERSONNEL, HOWEVER, AND HARDLY HELP THE PETITIONERS HERE. 
THE TITLE PAGES OF THE SAME REVENUE BULLETINS GIVE TAXPAYERS EXPLICIT
WARNING THAT RULINGS: 

"  ...  ARE FOR THE INFORMATION OF TAXPAYERS AND THEIR COUNSEL AS
SHOWING THE TREND OF OFFICIAL OPINION IN  ... THE BUREAU OF INTERNAL
REVENUE; THE RULINGS OTHER THAN TREASURY DECISIONS HAVE NONE OF THE
FORCE OR EFFECT OF TREASURY DECISIONS AND DO NOT COMMIT THE DEPARTMENT
TO ANY INTERPRETATION OF THE LAW WHICH HAS NOT BEEN FORMALLY APPROVED
AND PROMULGATED BY THE SECRETARY OF THE TREASURY."  (FN6) 

THIS ADMONITION, TOGETHER WITH THE LANGUAGE OF SEC 7805(B)'S
PREDECESSOR, SEC 3791(B) OF THE 1939 CODE, GAVE AMPLE NOTICE THAT THE
COMMISSIONER'S ACQUIESCENCE IN CAULKINS WAS NOT IMMUNE FROM SUBSEQUENT
RETROACTIVE CORRECTION TO ELIMINATE A MISTAKE OF LAW. 

INDEED, LONG BEFORE THE TAX YEAR HERE IN QUESTION THIS COURT HAD MADE
IT CLEAR THAT "THE POWER OF AN ADMINISTRATIVE OFFICER OR BOARD TO
ADMINISTER A FEDERAL STATUTE AND TO PRESCRIBE RULES AND REGULATIONS TO
THAT END IS NOT THE POWER TO MAKE LAW  ...  BUT THE POWER TO ADOPT
REGULATIONS TO CARRY INTO EFFECT THE WILL OF CONGRESS AS EXPRESSED BY
THE STATUTE.  A REGULATION WHICH DOES NOT DO THIS, BUT OPERATES TO
CREATE A RULE OUT OF HARMONY WITH THE STATUTE, IS A MERE NULLITY." 
MANHATTAN GENERAL EQUIPMENT CO. V. COMMISSIONER, SUPRA, AT 134.  (FN7)
THERE WE HELD THAT THE COMMISSIONER COULD MAKE RETROACTIVE A NEW
REGULATION INCREASING TAX LIABILITY BEYOND THAT PROVIDED FOR BY THE
PRIOR REGULATION WHERE THE SUPERSEDING REGULATION CORRECTED AN
ERRONEOUS INTERPRETATION OF THE STATUTE. 

"THE STATUTE DEFINES THE RIGHTS OF THE TAXPAYER AND FIXES A STANDARD
BY WHICH SUCH RIGHTS ARE TO BE MEASURED.  THE REGULATION CONSTITUTES
ONLY A STEP IN THE ADMINISTRATIVE PROCESS.  IT DOES NOT, AND COULD NOT,
ALTER THE STATUTE.  IT IS NO MORE RETROACTIVE IN ITS OPERATION THAN IS
A JUDICIAL DETERMINATION CONSTRUING AND APPLYING A STATUTE TO A CASE IN
HAND."  ID., AT 135. 

THIS REASONING APPLIES WITH EVEN GREATER FORCE TO THE COMMISSIONER'S
RULINGS AND ACQUIESCENCES.  (FN8)  THEREFORE THE ACQUIESCENCE IN
CAULKINS, EVEN ASSUMING FOR THE MOMENT THAT IT EMBODIED THE
COMMISSIONER'S ACCEPTANCE OF THE TREATMENT PETITIONERS URGE UPON US
HERE, DOES NOT PRECLUDE THE COMMISSIONER FROM COLLECTING THE TAX
LAWFULLY DUE UNDER THE STATUTE. 

WE CANNOT AGREE WITH PETITIONERS THAT AUTOMOBILE CLUB OF MICHIGAN V.
COMMISSIONER, SUPRA, SUPPORTS A FINDING THAT THE COMMISSIONER ABUSED
HIS DISCRETION IN GIVING RETROACTIVE EFFECT TO THE WITHDRAWAL OF THE
ACQUIESCENCE.  IN THAT CASE THE COMMISSIONER HAD ISSUED GENERAL
PRONOUNCEMENTS ACCORDING EXEMPT STATUS TO ALL AUTOMOBILE CLUBS
SIMILARLY SITUATED, FOLLOWING LETTER RULINGS TO THAT EFFECT IN FAVOR OF
THE TAXPAYER.  THE COMMISSIONER THEN CORRECTED HIS ERRONEOUS VIEW AND,
IN 1945, SPECIFICALLY REVOKED THE TAXPAYER'S EXEMPTION FOR 1943 AND
SUBSEQUENT YEARS.  WE REJECTED THE TAXPAYER'S CLAIM THAT THE
COMMISSIONER HAD ABUSED THE DISCRETION GIVEN HIM BY SEC 7805(B)'S
PREDECESSOR.  THE COMMISSIONER'S ACTION HAD BEEN FORECAST IN A GENERAL
COUNSEL MEMORANDUM IN 1943, AND THE CORRECTED RULING HAD BEEN APPLIED
TO ALL AUTOMOBILE CLUBS FOR TAX YEARS BACK TO 1943.  353 U.S., AT 185
186. 

PETITIONERS MAKE TWO ARGUMENTS BASED ON AUTOMOBILE CLUB OF MICHIGAN. 
FIRST, THEY CONTEND THAT THE COMMISSIONER'S DECISION TO APPLY HIS
CHANGE OF POSITION RETROACTIVELY TO THEM IS AN ABUSE OF DISCRETION
BECAUSE, UNLIKE THE TAXPAYER IN AUTOMOBILE CLUB, THEY HAD NO NOTICE IN
THE RELEVANT TAX YEAR THAT THE COMMISSIONER WAS ABOUT TO CORRECT HIS
MISTAKE OF LAW, AND THUS HAD PURCHASED THE DISCOUNTED NOTES IN EXPRESS
RELIANCE UPON THE COMMISSIONER'S PUBLISHED ACQUIESCENCE IN CAULKINS. 
SECOND, THEY ARGUE THAT THE COMMISSIONER ABUSED HIS DISCRETION BECAUSE
THE RETROACTIVE WITHDRAWAL OF HIS ACQUIESCENCE IN CAULKINS EXCEPTED
CERTIFICATES OF THE TYPE INVOLVED IN CAULKINS IF ISSUED BY THE ISSUER
THERE INVOLVED AND PURCHASED WHILE THE ACQUIESCENCE WAS IN EFFECT; THIS
IS SAID TO BE AN UNREASONABLE AND ARBITRARY CLASSIFICATION SINCE,
PETITIONERS ASSERT, THERE IS NO SIGNIFICANT DIFFERENCE BETWEEN THE
EXCEPTED CERTIFICATES AND THE NOTES THAT THEY HAD PURCHASED. 

ALTHOUGH WE MENTIONED CERTAIN FACTS IN SUPPORT OF OUR CONCLUSION IN
AUTOMOBILE CLUB THAT THERE HAD NOT BEEN AN ABUSE OF DISCRETION IN THAT
CASE, IT DOES NOT FOLLOW THAT THE ABSENCE OF ONE OR MORE OF THESE FACTS
IN ANOTHER CASE WHEREIN A RULING OR REGULATION IS APPLIED RETROACTIVELY
ESTABLISHES AN ABUSE OF DISCRETION.  AUTOMOBILE CLUB MERELY EXAMINED
ALL THE CIRCUMSTANCES OF THE PARTICULAR CASE TO DETERMINE WHETHER THE
COMMISSIONER HAD THERE ABUSED HIS DISCRETION.  353 U.S., AT 185.  IN
THE PRESENT CASE IT CANNOT BE SAID THAT THE COMMISSIONER ABUSED HIS
DISCRETION IN EITHER OF THE RESPECTS URGED BY PETITIONERS.  THE ABSENCE
OF NOTICE DOES NOT PROVE AN ABUSE, SINCE, FOR THE REASONS WE HAVE
STATED, THE PETITIONERS WERE NOT JUSTIFIED IN RELYING ON THE
ACQUIESCENCE AS PRECLUDING CORRECTION OF THE UNDERLYING MISTAKE OF LAW
AND THE RETROACTIVE APPLICATION OF THE CORRECT LAW TO THEIR CASE. 
SINCE NO RELIANCE WAS WARRANTED, NO NOTICE WAS REQUIRED. 

NOR IS THERE MERIT IN THE ARGUMENT THAT THE COMMISSIONER ABUSED HIS
DISCRETION IN DISTINGUISHING INVESTORS SYNDICATE ACCUMULATIVE
INSTALLMENT CERTIFICATES FROM OTHER DEBT SECURITIES, FOR WE DO NOT
THINK THE COMMISSIONER'S ACQUIESCENCE IN CAULKINS WAS TO BE INTERPRETED
AS HIS ACCEPTANCE OF THE PROPOSITION THAT EARNED ORIGINAL ISSUE
DISCOUNT WAS ENTITLED TO CAPITAL GAINS TREATMENT.  (FN9) THAT
INTERPRETATION MIGHT BE PROPERLY PUT UPON HIS ACQUIESCENCE ONLY IF,
FIRST, THE TAX COURT IN CAULKINS SQUARELY DECIDED THAT ANY DISCOUNT
ELEMENT IN THE AMOUNT REALIZED BY THE TAXPAYER ON THE RETIREMENT OF THE
CERTIFICATE WAS NOT TO BE TAXED AS ORDINARY INCOME BUT AS CAPITAL GAIN,
AND, SECOND, THE DECISION OF THE TAX COURT SHOULD BE READ AS HOLDING
THAT THE TAX TREATMENT OF GAIN ATTRIBUTABLE TO DISCOUNT IS THE SAME ON
SALES AND RETIREMENTS.  BUT CAULKINS EMBODIES NEITHER OF THESE
HOLDINGS.  THEREFORE, WHEN THE COMMISSIONER REVOKED HIS ACQUIESCENCE IN
1955 HE WAS NOT REPUDIATING HIS EARLIER ACCEPTANCE OF A DECISION THAT
PRESCRIBED CAPITAL GAINS TREATMENT FOR THE EARNED ORIGINAL ISSUE
DISCOUNT HERE INVOLVED.  CONSEQUENTLY, HIS DECISION TO EXCEPT
ACCUMULATIVE INSTALLMENT CERTIFICATES FROM THE RETROACTIVE APPLICATION
OF HIS NONACQUIESCENCE IN CAULKINS COULD NOT CONSTITUTE AN ABUSE OF
DISCRETION OF WHICH THE PETITIONERS MAY COMPLAIN. 

AS TO ITEM FIRST: THAT THE TAX COURT IN CAULKINS DID NOT SQUARELY
DECIDE THAT THE DISCOUNT ELEMENT IN THE AMOUNT REALIZED BY THE TAXPAYER
ON THE RETIREMENT OF A DEBT SECURITY IS TO BE TAXED AS A CAPITAL GAIN
IS APPARENT FROM ITS OPINION.  THE TAX COURT SEEMED TO REGARD THE ONLY
SIGNIFICANT ISSUE BEFORE IT AS WHETHER THE TAXPAYER'S CERTIFICATE OF
INDEBTEDNESS WAS A "REGISTERED" CERTIFICATE WITHIN THE MEANING OF SEC
117(F).  THERE WAS NO EXPLICIT CONSIDERATION OF WHETHER ANY DISCOUNT
ELEMENT IN THE AMOUNT REALIZED BY THE TAXPAYER ON THE CERTIFICATE WAS
TO BE TAXED AS ORDINARY INCOME OR AS CAPITAL GAIN.  IT IS AT BEST
HIGHLY QUESTIONABLE, THEREFORE, THAT BY ACQUIESCING IN THIS DECISION
THE COMMISSIONER CONCEDED THAT SEC 117(F) EXTENDED CAPITAL GAINS
TREATMENT TO THE DISCOUNT ELEMENT IN THE CERTIFICATE OF INDEBTEDNESS. 
(FN10)    AS TO ITEM SECOND: THE PETITIONERS WERE NOT WARRANTED IN
READING CAULKINS AS HOLDING THAT THE GAIN REALIZED ON A SALE THAT IS
ATTRIBUTABLE TO ORIGINAL ISSUE DISCOUNT IS TO BE GIVEN THE SAME TAX
TREATMENT AS GAIN SO ATTRIBUTABLE REALIZED ON A RETIREMENT.  THE
OPINION DEALS ONLY WITH, AND RESTS SQUARELY UPON, SEC 117(F), WHICH IS
CONCERNED WITH RETIREMENTS.  IT IS TRUE THAT, IN THE CASE OF SECURITIES
IN REGISTERED FORM OR WITH COUPONS ATTACHED, THAT SECTION WAS ADDED BY
THE REVENUE ACT OF 1934, 48 STAT. 680, 714-715, TO ELIMINATE A
DIFFERENCE IN TREATMENT BETWEEN SALES AND RETIREMENTS.  SEE, E.G.,
FAIRBANKS V. UNITED STATES, 306 U.S. 436; WATSON V. COMMISSIONER, 27
B.T.A. 463.  BUT THE OPINION IN CAULKINS APPEARS ERRONEOUSLY TO CARRY
FORWARD A DISTINCTION AND TO GIVE MORE FAVORABLE TREATMENT TO
RETIREMENTS.  SEE UNITED STATES V. MIDLAND-ROSS CORP., SUPRA, AT 63
66.  THUS PETITIONERS SHOULD NOT HAVE READ CAULKINS AS THEY DID. 
INDEED THE TAX COURT HAS SINCE DISTINGUISHED CAULKINS ON THE GROUND
THAT IT RESTED ON THE SEC 117(F) LANGUAGE OF RETIREMENT AND
CONSEQUENTLY WAS INAPPLICABLE TO A SALE.  SEE PAINE V. COMMISSIONER, 23
T.C. 391, 401, REV'D ON OTHER GROUNDS, 236 F.2D 398 (C.A. 8TH CIR.);
UNITED STATES V. MIDLAND-ROSS CORP., SUPRA, AT 65. 

FURTHERMORE, EVEN ON THE ASSUMPTION THAT CAULKINS MAY BE READ AS
PETITIONERS CONTEND, PETITIONERS HAD THE BURDEN OF DEMONSTRATING THAT
ACCUMULATIVE INSTALLMENT CERTIFICATES COULD NOT RATIONALLY BE
DISTINGUISHED FROM OTHER DISCOUNTED SECURITIES.  CF. AMERICAN STATE
BANK V. UNITED STATES, 279 F.2D 585, 589-590 (C.A. 7TH CIR.); SCHWARTZ
V. COMMISSIONER, 40 T.C. 191, 193.  BUT THE RECORD IS DEVOID OF ANY
EVIDENCE OF EFFORT BY PETITIONERS TO DISCHARGE THIS BURDEN BY SHOWING
THE ABSENCE OF ANY SIGNIFICANT DIFFERENCE BETWEEN THE HOLDERS OF
ACCUMULATIVE INSTALLMENT CERTIFICATES AND THEMSELVES.  INDEED, THE
COMMISSIONER MIGHT WELL HAVE BELIEVED THAT HOWEVER MISTAKEN THE VIEW
THAT HIS ACQUIESCENCE IN CAULKINS WAS TANTAMOUNT TO AN ACCEPTANCE OF
CAPITAL GAINS TREATMENT FOR ORIGINAL ISSUE DISCOUNT, THE ASSUMPTION
THAT SUCH TREATMENT WOULD BE GIVEN THE DISCOUNT ELEMENT OF THEIR DEBT
SECURITIES WAS MORE UNDERSTANDABLE IN THE CASE OF HOLDERS OF
ACCUMULATIVE INSTALLMENT CERTIFICATES - THE SAME OBLIGATIONS AS WERE
INVOLVED IN CAULKINS - THAN IN THE CASE OF OTHER TAXPAYERS.  SO
THINKING, THE COMMISSIONER MIGHT FURTHER HAVE CONCLUDED THAT EQUITABLE
CONSIDERATIONS POINTED TO MAKING AN EXCEPTION TO THE RETROACTIVE
APPLICATION OF THE NONACQUIESCENCE FOR THE HOLDERS OF THESE
CERTIFICATES.  IT IS NOT FOR US TO PASS UPON THE WISDOM OF ANY SUCH
DISTINCTION.  IT SUFFICES THAT ON THIS RECORD WE CANNOT SAY THAT THE
DISTINCTION WAS SO DEVOID OF RATIONAL BASIS THAT WE MUST NOW OVERTURN
THE COMMISSIONER'S JUDGMENT. 

INSOFAR AS PETITIONERS' ARGUMENTS QUESTION THE POLICY OF EMPOWERING
THE COMMISSIONER TO CORRECT MISTAKES OF LAW RETROACTIVELY WHEN A
TAXPAYER ACTS TO HIS DETRIMENT IN RELIANCE UPON THE COMMISSIONER'S
ACQUIESCENCE IN AN ERRONEOUS TAX COURT DECISION, (FN11) THEIR ARGUMENTS
ARE MORE APPROPRIATELY ADDRESSED TO CONGRESS.  CONGRESS HAS SEEN FIT TO
ALLOW THE COMMISSIONER TO CORRECT MISTAKES OF LAW, AND IN SEC 7805(B)
HAS GIVEN HIM A LARGE MEASURE OF DISCRETION IN DETERMINING WHEN TO
APPLY HIS CORRECTIONS RETROACTIVELY.  IN THE CIRCUMSTANCES OF THIS CASE
WE CANNOT SAY THAT THIS DISCRETION WAS ABUSED.  AFFIRMED. 

FN1  THE PETITIONERS CONCEDE THE CORRECTNESS OF THIS TREATMENT OF THE
EARNED DISCOUNT ON THE 13 UNSOLD NOTES IF ORIGINAL ISSUE DISCOUNT IS
REPORTABLE AS ORDINARY INCOME.  AGAIN, AS IN MIDLAND-ROSS, WE DO NOT
REACH OR INTIMATE ANY VIEW UPON THE QUESTION WHETHER AN ACCRUAL-BASIS
TAXPAYER IS REQUIRED TO REPORT DISCOUNT EARNED BEFORE THE FINAL
DISPOSITION OF AN OBLIGATION.  SEE UNITED STATES V. MIDLAND-ROSS, ANTE,
P. 54, AT 58, NOTE 4. 

FN2  THE COMMISSIONER INITIALLY PUBLISHED A NOTIFICATION OF
NONACQUIESCENCE.  SEE REV.  RUL. 11581, 1943 CUM. BULL.  1, 28.  HE
PUBLISHED HIS ACQUIESCENCE AFTER THE COURT OF APPEALS AFFIRMED THE TAX
COURT.  SEE REV. RUL. 11907, 1944 CUM. BULL.  1, 5.  THE WITHDRAWAL OF
HIS ACQUIESCENCE AND THE REINSTATEMENT OF HIS INITIAL NONACQUIESCENCE
CAME IN 1955, IN 1955-1 CUM. BULL.  7, AND REV. RUL. 55-136, 1955-1
CUM. BULL.  213. 

FN3  SECTION 3791(B) OF THE 1939 CODE, 53 STAT. 467, WAS SIMILARLY
WORDED EXCEPT THAT THE 1954 ACT SUBSTITUTED "THE SECRETARY OR HIS
DELEGATE" FOR "THE SECRETARY, OR THE COMMISSIONER WITH THE APPROVAL OF
THE SECRETARY  ...  ." 

WHETHER THE DISCOUNT ELEMENT OF THE GAIN FROM THE NOTES HERE INVOLVED
IS A CAPITAL OR AN INCOME ITEM IS GOVERNED BY THE RELEVANT PROVISIONS
OF THE 1939 CODE, BUT THE STATUTE GOVERNING THE RETROACTIVE APPLICATION
OF THE WITHDRAWAL OF THE ACQUIESCENCE IN 1955 IS SEC 7805(B) OF THE
1954 CODE, AND NOT SEC 3791(B) OF THE 1939 CODE.  THIS MAKES NO
PRACTICAL DIFFERENCE SINCE THE TWO PROVISIONS ARE IDENTICAL APART FROM
THE VARIANCE MENTIONED ABOVE. 

FN4  THE WITHDRAWAL WAS PUBLISHED MARCH 14, 1955.  HOWEVER, THE
EXCEPTION WAS LATER LIMITED TO CERTIFICATES ACQUIRED BEFORE DECEMBER
31, 1954, REV. RUL. 56-299, 1956-1 CUM.  BULL.  603, APPARENTLY BECAUSE
SEC 1232 OF THE 1954 CODE APPLIES TO OBLIGATIONS ISSUED AFTER THAT
DATE. 

FN5  SEE ALSO HELVERING V. REYNOLDS, 313 U.S. 428; MANHATTAN GENERAL
EQUIPMENT CO. V. COMMISSIONER, 297 U.S. 129, 134-135. 

FN6  COMPARE THE CURRENT INTERNAL REVENUE BULLETINS, WHEREIN, WITH
SPECIFIC REGARD TO ACQUIESCENCES, IT IS STATED: 

"ACTIONS OF ACQUIESCENCES IN ADVERSE DECISIONS SHALL BE RELIED ON BY
REVENUE OFFICERS AND OTHERS CONCERNED AS CONCLUSIONS OF THE SERVICE
ONLY TO THE APPLICATION OF THE LAW TO THE FACTS IN THE PARTICULAR
CASE.  CAUTION SHOULD BE EXERCISED IN EXTENDING THE APPLICATION OF THE
DECISION TO A SIMILAR CASE UNLESS THE FACTS AND CIRCUMSTANCES ARE
SUBSTANTIALLY THE SAME  ...  ."  E.G., 1964-1 CUM. BULL.  3. 

AND THE INTRODUCTION TO REVENUE RULINGS NOW EXPRESSLY WARNS THAT
"EXCEPT WHERE OTHERWISE INDICATED, PUBLISHED RULINGS AND PROCEDURES
APPLY RETROACTIVELY."  ID., AT 1.  SEE ALSO REV. PROC. 62-28, 1962-2
CUM. BULL.  496, WHICH STATES AT 504: 

"A RULING  ...  MAY BE REVOKED OR MODIFIED AT ANY TIME IN THE WISE
ADMINISTRATION OF THE TAXING STATUTES  ...  .  IF A RULING IS REVOKED
OR MODIFIED, THE REVOCATION OR MODIFICATION APPLIES TO ALL OPEN YEARS
UNDER THE STATUTES, UNLESS THE COMMISSIONER EXERCISES THE DISCRETIONARY
POWERS GIVEN TO HIM UNDER SECTION 7805(B) OF THE CODE TO LIMIT THE
RETROACTIVE EFFECT OF THE RULING." 

FN7  SEE ALSO MILLER V. UNITED STATES, 294 U.S. 435, 439-440; LYNCH
V. TILDEN PRODUCE CO., 265 U.S. 315, 320-322. 

FN8  THE COMMISSIONER'S ACQUIESCENCE IN CAULKINS AND HIS WITHDRAWAL
AND REINSTATEMENT OF NONACQUIESCENCE WERE STATED IN REVENUE RULINGS. 
PRESENT PRACTICE APPEARS TO BE TO PUBLISH ACQUIESCENCES AND
NONACQUIESCENCES WITHOUT INCORPORATING THEM IN RULINGS.  SEE, E.G.,
1964-1 CUM. BULL.  3. 

FN9  PETITIONERS INVOKE THE PRINCIPLE THAT "THE COMMISSIONER CANNOT
TAX ONE AND NOT TAX ANOTHER WITHOUT SOME RATIONAL BASIS FOR THE
DIFFERENCE.  AND SO, ASSUMING THE CORRECTNESS OF THE PRINCIPLE OF
'EQUALITY,' IT CAN BE AN INDEPENDENT GROUND OF DECISION THAT THE
COMMISSIONER HAS BEEN INCONSISTENT, WITHOUT MUCH CONCERN FOR WHETHER WE
SHOULD HOLD AS AN ORIGINAL MATTER THAT THE POSITION THE COMMISSIONER
NOW WEEKS TO SUSTAIN IS WRONG."  UNITED STATES V. KAISER, 363 U.S. 299,
308 (CONCURRING OPINION).  SEE ALSO SCHUSTER V. COMMISSIONER, 312 F.2D
311 (C.A. 9TH CIR.); EXCHANGE PARTS CO. OF FORT WORTH V. UNITED STATES,
150 CT. CL. 538, 279 F.2D 251; CITY LOAN & SAVINGS CO. V. UNITED
STATES, 177 F. SUPP. 843, AFF'D 287 F.2D 612 (C.A. 6TH CIR.); BRECKLEIN
V. BOOKWALTER, 231 F. SUPP.  404; CONNECTICUT RAILWAY & LIGHTING CO. V.
UNITED STATES, 142 F. SUPP. 907. 

FN10  THE OPINION OF THE COURT OF APPEALS STATED THAT SEC 117(F)
REQUIRED THAT ALL GAIN REALIZED UPON RETIREMENT OF AN OBLIGATION TO
WHICH THE SECTION APPLIED BE GIVEN CAPITAL GAINS TREATMENT; THAT
COURT'S PRIMARY CONCERN, HOWEVER, WAS ALSO WITH THE QUESTION WHETHER
THE SECTION APPLIED TO THE CAULKINS CERTIFICATES.  TECHNICALLY, THE
COMMISSIONER'S ACQUIESCENCE IN CAULKINS WAS IN THE TAX COURT DECISION
AND NOT IN THE DECISION OF THE COURT OF APPEALS.  AS A GENERAL MATTER,
THE COMMISSIONER STILL FOLLOWS THE PRACTICE OF NOTING HIS ACQUIESCENCE
OR NONACQUIESCENCE ONLY IN TAX COURT DECISIONS. 

FN11  CF. GRISWOLD, A SUMMARY OF THE REGULATIONS PROBLEM, 54 HARV. L.
REV. 398, 411-419 (1941). 
..END :














SIMONS V. MIAMI BEACH FIRST NATIONAL BANK, EXECUTOR 381 U.S. 81 


NO. 363.  ARGUED MARCH 10, 1965.  - DECIDED MAY 3, 1965.  - 157 SO. 2D
199, AFFIRMED. 


PETITIONER AND HER HUSBAND, SIMONS, WERE LEGALLY SEPARATED IN NEW
YORK, WHERE THEY WERE DOMICILED, AND HE WAS ORDERED BY THE SEPARATION
DECREE TO MAKE MONTHLY ALIMONY PAYMENTS.  HE ULTIMATELY MOVED TO
FLORIDA, WHERE A YEAR LATER HE SECURED A DIVORCE.  PETITIONER HAD VALID
CONSTRUCTIVE NOTICE OF THE DIVORCE ACTION BUT ENTERED NO APPEARANCE. 
SIMONS MADE THE MONTHLY PAYMENTS UNDER THE NEW YORK DECREE UP TO HIS
DEATH ABOUT EIGHT YEARS AFTER THE DIVORCE.  PETITIONER CLAIMED DOWER
UNDER FLORIDA LAW WHEN RESPONDENT, EXECUTOR, OFFERED SIMONS' WILL FOR
PROBATE.  RESPONDENT OPPOSED THE CLAIM ON THE GROUND THAT BECAUSE OF
THE DIVORCE PETITIONER WAS NOT SIMONS' WIFE WHEN HE DIED.  PETITIONER
THEN BROUGHT THIS ACTION IN A FLORIDA COURT SEEKING A DECLARATION THAT
THE DIVORCE HAD NOT DESTROYED HER DOWER CLAIM.  THE TRIAL COURT'S
DISMISSAL OF THE ACTION WAS AFFIRMED ON APPEAL AND THE STATE SUPREME
COURT DECLINED REVIEW.  HELD: 

1.  THE DENIAL OF PETITIONER'S DOWER BY THE FLORIDA COURTS DID NOT
VIOLATE THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION, SINCE THE
NEW YORK DECREE, WHICH WAS FULLY COMPLIED WITH BY SIMONS, PRESERVED NO
DOWER RIGHTS IN HIS PROPERTY.  P. 84. 

2.  ANY DOWER RIGHTS PETITIONER MAY HAVE HAD IN SIMONS' ESTATE UNDER
FLORIDA LAW DID NOT SURVIVE THE DIVORCE DECREE, SINCE UNDER FLORIDA LAW
DOWER RIGHTS IN FLORIDA PROPERTY ARE INCHOATE, AND ARE EXTINGUISHED BY
A DIVORCE DECREE PREDICATED UPON CONSTRUCTIVE SERVICE.  P. 85. 

SIMONS V. MIAMI BEACH FIRST NATIONAL BANK, EXECUTOR. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD
DISTRICT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION TO BE DECIDED IN THIS CASE IS WHETHER A HUSBAND'S VALID
FLORIDA DIVORCE, OBTAINED IN A PROCEEDING WHEREIN HIS NONRESIDENT WIFE
WAS SERVED BY A PUBLICATION ONLY AND DID NOT MAKE A PERSONAL
APPEARANCE, UNCONSTITUTIONALLY EXTINGUISHED HER DOWER RIGHT IN HIS
FLORIDA ESTATE. 

THE PETITIONER AND SOL SIMONS WERE DOMICILED IN NEW YORK WHEN, IN
1946, SHE OBTAINED A NEW YORK SEPARATION DECREE THAT INCLUDED AN AWARD
OF MONTHLY ALIMONY.  SOL SIMONS MOVED TO FLORIDA IN 1951 AND, A YEAR
LATER, OBTAINED THERE A DIVORCE IN AN ACTION OF WHICH PETITIONER HAD
VALID CONSTRUCTIVE NOTICE BUT IN WHICH SHE DID NOT ENTER A PERSONAL
APPEARANCE.  (FN1)  AFTER SOL SIMONS' DEATH IN FLORIDA IN 1960,
RESPONDENT, THE EXECUTOR OF HIS ESTATE, OFFERED HIS WILL FOR PROBATE IN
THE PROBATE COURT OF DADE COUNTY, FLORIDA.  PETITIONER APPEARED IN THE
PROCEEDING AND FILED AN ELECTION TO TAKE DOWER UNDER FLORIDA LAW,
RATHER THAN HAVE HER RIGHTS IN THE ESTATE GOVERNED BY THE TERMS OF THE
WILL, WHICH MADE NO PROVISION FOR HER.  (FN2)  THE RESPONDENT OPPOSED
THE DOWER CLAIM, ASSERTING THAT SINCE SOL SIMONS HAD DIVORCED
PETITIONER SHE HAD NOT BEEN HIS WIFE AT HIS DEATH, AND CONSEQUENTLY WAS
NOT ENTITLED TO DOWER UNDER FLORIDA LAW.  PETITIONER THEREUPON BROUGHT
THE INSTANT ACTION IN THE CIRCUIT COURT FOR DADE COUNTY IN ORDER TO SET
ASIDE THE DIVORCE DECREE AND TO OBTAIN A DECLARATION THAT THE DIVORCE,
EVEN IF VALID TO ALTER HER MARITAL STATUS, DID NOT DESTROY OR IMPAIR
HER CLAIM TO DOWER.  THE ACTION WAS DISMISSED AFTER TRIAL, AND THE
FLORIDA DISTRICT COURT OF APPEAL FOR THE THIRD DISTRICT AFFIRMED.  157
SO. 2D 199.  (FN3)  THE SUPREME COURT OF FLORIDA DECLINED TO REVIEW THE
CASE, 166 SO. 2D 151.  WE GRANTED CERTIORARI, 379 U.S. 877.  WE
AFFIRM. 

PETITIONER'S COUNSEL ADVISED US DURING ORAL ARGUMENT THAT HE NO
LONGER CHALLENGED THE JUDGMENT BELOW INSOFAR AS IT EMBODIED A HOLDING
THAT THE 1952 FLORIDA DIVORCE WAS VALID AND TERMINATED THE MARITAL
STATUS OF THE PARTIES.  WE THEREFORE PROCEED TO THE DECISION OF THE
QUESTION WHETHER THE FLORIDA COURTS UNCONSTITUTIONALLY DENIED
PETITIONER'S DOWER CLAIM.  (FN4) 

PETITIONER ARGUES THAT SINCE SHE HAD NOT APPEARED IN THE FLORIDA
DIVORCE ACTION THE FLORIDA DIVORCE COURT HAD NO POWER TO EXTINGUISH ANY
RIGHT WHICH SHE HAD ACQUIRED UNDER THE NEW YORK DECREE.   SHE INVOKES
THE PRINCIPLE OF ESTIN V. ESTIN, 334 U.S. 541, WHERE THIS COURT DECIDED
THAT A NEVADA DIVORCE COURT, WHICH HAD NO PERSONAL JURISDICTION OVER
THE WIFE, HAD NO POWER TO TERMINATE A HUSBAND'S OBLIGATION TO PROVIDE
THE WIFE SUPPORT AS REQUIRED BY A PRE-EXISTING NEW YORK SEPARATION
DECREE.  AS THIS WAS SO, WE THERE RULED THAT NEW YORK, IN GIVING
CONTINUED EFFECT TO THE MAINTENANCE PROVISIONS OF ITS SEPARATION
DECREE, DID NOT DENY FULL FAITH AND CREDIT TO THE NEVADA DECREE.  SEE
U.S. CONST., ART. IV, SEC. 1.  (FN5)  THE APPLICATION OF THE ESTIN
PRINCIPLE TO THE INSTANT CASE, PETITIONER CONTENDS DICTATES THAT WE
HOLD THE FLORIDA COURTS TO THEIR CONSTITUTIONAL DUTY TO GIVE EFFECT TO
THE NEW YORK DECREE, INHERENT IN WHICH IS A PRESERVATION OF HER DOWER
RIGHT. 

THE SHORT ANSWER TO THIS CONTENTION IS THAT THE ONLY OBLIGATION
IMPOSED ON SOL SIMONS BY THE NEW YORK DECREE, AND THE ONLY RIGHTS
GRANTED PETITIONER UNDER IT, CONCERNED MONTHLY ALIMONY FOR PETITIONER'S
SUPPORT.  UNLIKE THE EX-HUSBAND IN ESTIN, SOL SIMONS MADE THE SUPPORT
PAYMENTS CALLED FOR BY THE SEPARATE MAINTENANCE DECREE NOTWITHSTANDING
HIS EX PARTE DIVORCE.  IN MAKING THESE PAYMENTS UNTIL HIS DEATH HE
COMPLIED WITH THE FULL MEASURE OF THE NEW YORK DECREE; WHEN HE DIED
THERE WAS CONSEQUENTLY NOTHING LEFT OF THE NEW YORK DECREE FOR FLORIDA
TO DISHONOR. 

THIS CONCLUSION EMBODIES OUR JUDGMENT THAT THERE IS NOTHING IN THE
NEW YORK DECREE ITSELF THAT CAN BE CONSTRUED AS CREATING OR PRESERVING
ANY INTEREST IN THE NATURE OF OR IN LIEU OF DOWER IN ANY PROPERTY OF
THE DECEDENT, WHEREVER LOCATED.  PETITIONER REFERS US TO NO NEW YORK
LAW THAT TREATS SUCH A DECREE AS HAVING THAT EFFECT, OR, FOR THAT
MATTER, TO ANY NEW YORK LAW THAT HAS SUCH AN EFFECT IRRESPECTIVE OF THE
EXISTENCE OF THE DECREE.  WE THINK IT CLEAR THAT THE BURDEN OF SHOWING
THIS RESTED UPON PETITIONER.  CF. STATE FARM INS.  CO. V. DUEL, 324
U.S. 154, 160; ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N, 294
U.S. 532, 547-548.  IT FOLLOWS THAT INSOFAR AS PETITIONER'S ARGUMENT
RESTS ON RIGHTS CREATED BY THE NEW YORK DECREE OR BY NEW YORK LAW, THE
DENIAL OF HER DOWER BY THE FLORIDA COURTS WAS NOT A VIOLATION OF THE
FULL FAITH AND CREDIT CLAUSE.  CF. ARMSTRONG V. ARMSTRONG, 350 U.S.
568. 

INSOFAR AS PETITIONER ARGUES THAT SINCE SHE WAS NOT SUBJECT TO THE
JURISDICTION OF THE FLORIDA DIVORCE COURT ITS DECREE COULD NOT
EXTINGUISH ANY DOWER RIGHT EXISTING UNDER FLORIDA LAW, VANDERBILT V.
VANDERBILT, 354 U.S. 416, 418, THE ANSWER IS THAT UNDER FLORIDA LAW NO
DOWER RIGHT SURVIVED THE DECREE.  THE SUPREME COURT OF FLORIDA HAS SAID
THAT DOWER RIGHTS IN FLORIDA PROPERTY, BEING INCHOATE, ARE EXTINGUISHED
BY A DIVORCE DECREE PREDICATED UPON SUBSTITUTED OR CONSTRUCTIVE
SERVICE.  PAWLEY V. PAWLEY, 46 SO. 2D 464.  (FN6) 

IT FOLLOWS THAT THE FLORIDA COURTS TRANSGRESSED NO CONSTITUTIONAL
BOUNDS IN DENYING PETITIONER DOWER IN HER EX-HUSBAND'S FLORIDA ESTATE. 
AFFIRMED. 

FN1  PETITIONER WAS SERVED BY PUBLICATION WHILE STILL LIVING IN NEW
YORK AND RECEIVED COPIES OF THE ORDER FOR PUBLICATION AND THE DIVORCE
COMPLAINT.  SHE DID NOT ENTER AN APPEARANCE IN THE FLORIDA PROCEEDING
ON ADVICE OF COUNSE. 

FN2  21 FA. STAT. ANN. 1964, SEC. 731.34 PROVIDES AS FOLLOWS: 

"WHENEVER THE WIDOW OF ANY DECEDENT SHALL NOT BE SATISFIED WITH THE
PORTION OF THE ESTATE OF HER HUSBAND TO WHICH SHE IS ENTITLED UNDER THE
LAW OF DESCENT AND DISTRIBUTION OR UNDER THE WILL OF HER HUSBAND, OR
BOTH, SHE MAY ELECT IN THE MANNER PROVIDED BY LAW TO TAKE DOWER, WHICH
DOWER SHALL BE ONE THIRD IN FEE SIMPLE OF THE REAL PROPERTY WHICH WAS
OWNED BY HER HUSBAND AT THE TIME OF HIS DEATH OR WHICH HE HAD BEFORE
CONVEYED, WHEREOF SHE HAD NOT RELINQUISHED HER RIGHT OF DOWER AS
PROVIDED BY LAW, AND ONE THIRD PART ABSOLUTELY OF THE PERSONAL PROPERTY
OWNED BY HER HUSBAND AT THE TIME OF HIS DEATH  ...  ." 

FN3  PETITIONER ATTACKED THE VALIDITY OF THE DIVORCE ON THE GROUNDS:
(1) THAT SOL SIMONS HAD DEFRAUDED THE FLORIDA COURTS BY FALSELY
CLAIMING RESIDENCE, (2) THAT THE NEW YORK DECREE WAS A BAR TO THE
DIVORCE SUIT AND THAT SOL SIMONS HAD DEFRAUDED THE COURT BY FAILING TO
DISCLOSE THE PRIOR NEW YORK DECREE, (3) THAT THE DIVORCE DECREE ON ITS
FACE SHOWED WANT OF JURISDICTION AND (4) THAT AFTER PETITIONER RECEIVED
NOTICE OF THE DIVORCE SUIT SOL SIMONS LULLED HER INTO INACTION.  THE
TRIAL COURT MADE FINDINGS OF FACT ADVERSE TO PETITIONER ON ALL POINTS
AND DISMISSED THE SUIT WITH PREJUDICE.  IN AFFIRMING, THE FLORIDA
DISTRICT COURT OF APPEAL HELD THAT "THE PRIOR NEW YORK SEPARATE
MAINTENANCE DECREE WAS NOT A BAR TO A DIVORCE SUIT BY THE HUSBAND, AND
HIS FAILURE TO DISCLOSE IT IN HIS COMPLAINT WAS NOT A FRAUD ON THE
COURT ...  .  ANY AFFIRMATIVE DEFENSE THE PRIOR SUIT MAY HAVE AFFORDED
SHOULD HAVE BEEN PRESENTED IN THE DIVORCE SUIT."  157 SO. 2D 199, AT
200. 

FN4  NEITHER THE FLORIDA TRIAL COURT NOR THE DISTRICT COURT OF APPEAL
EXPRESSLY DISCUSSED THE MERITS OF PETITIONER'S CLAIM THAT THE DIVORCE,
EVEN IF VALID, DID NOT DESTROY OR IMPAIR HER DOWER RIGHTS.  BUT SINCE
FLORIDA LAW ALLOWS DOWER ONLY TO A DECEDENT'S WIFE, SEE NOTE 6, INFRA,
WE INTERPRET THE FLORIDA COURTS' DECISIONS SUSTAINING THE VALIDITY OF
THE DIVORCE AS ALSO HOLDING THAT THE DIVORCE EXTINGUISHED PETITIONER'S
DOWER RIGHTS. 

FN5  "FULL FAITH AND CREDIT SHALL BE GIVEN IN EACH STATE TO THE
PUBLIC ACTS, RECORDS, AND JUDICIAL PROCEEDINGS OF EVERY OTHER STATE
...  ." 

FN6  IN PAWLEY THE SUPREME COURT OF FLORIDA DISTINGUISHED THE DOWER
RIGHT FROM THE RIGHT TO SUPPORT, SAYING AT 46 SO. 2D 464, 472-473, N.
2: 

"IN THIS, IF NOT IN EVERY JURISDICTION, RIGHT OF DOWER CAN NEVER BE
MADE THE SUBJECT OF A WHOLLY INDEPENDENT ISSUE IN ANY DIVORCE SUIT.  IT
STANDS OR FALLS AS A RESULT OF THE DECREE WHICH DENIES OR GRANTS
DIVORCE.  IT ARISES UPON MARRIAGE, AS AN INSTITUTION OF THE LAW.  THE
INCHOATE RIGHT OF DOWER HAS SOME OF THE INCIDENTS OF PROPERTY.  IT
PARTAKES OF THE NATURE OF A LIEN OR ENCUMBRANCE.  IT IS NOT A RIGHT
WHICH IS ORIGINATED BY OR IS DERIVED FROM THE HUSBAND; NOR IS IT A
PERSONAL OBLIGATION TO BE MET OR FULFILLED BY HIM, BUT IT IS A CREATURE
OF THE LAW, IS BORN AT THE MARRIAGE ALTAR, CRADLED IN THE BOSOM OF THE
MARITAL STATUS AS AN INTEGRAL AND COMPONENT PART THEREOF, SURVIVES
DURING THE LIFE OF THE WIFE AS SUCH AND FINDS ITS SEPULCHER IN
DIVORCE.  ALIMONY TOO IS AN INSTITUTION OF THE LAW BUT IT IS A PERSONAL
OBLIGATION OF THE HUSBAND WHICH IS BASED UPON THE DUTY IMPOSED UPON HIM
BY THE COMMON LAW TO SUPPORT HIS WIFE AND GIVES RISE TO A PERSONAL
RIGHT OF THE WIFE TO INSIST UPON, IF SHE BE ENTITLED TO, IT.  IT HAS
NONE OF THE INCIDENTS OF, AND IS IN NO SENSE A LIEN UPON OR INTEREST
IN, PROPERTY.  CONSEQUENTLY, THE RIGHT OF THE WIFE TO BE HEARD ON THE
QUESTION OF ALIMONY SHOULD NOT, INDEED LAWFULLY IT CANNOT, BE DESTROYED
BY A DIVORCE DECREE SOUGHT AND SECURED BY THE HUSBAND IN AN ACTION
WHEREIN ONLY CONSTRUCTIVE SERVICE OF PROCESS WAS EFFECTED." 

A PETITION FOR WRIT OF CERTIORARI TO THIS COURT ALLEGED, "PETITIONER
IS THUS PERMITTED TO FILE ANOTHER SUIT FOR ALIMONY, BUT HER CONTRACT OF
MARRIAGE IS ANNULLED AND HER INCHOATE DOWER RIGHTS DESTROYED WITHOUT
DUE PROCESS OF LAW."  BRIEF FOR PETITIONER, P. 9, PAWLEY V. PAWLEY, NO.
325, OCTOBER TERM, 1950.  THE PETITION WAS DENIED, 340 U.S. 866. 

MR. JUSTICE HARLAN, CONCURRING. 

I AM HAPPY TO JOIN IN THE OPINION OF THE COURT BECAUSE IT MAKES
PARTIAL RETREAT FROM VANDERBILT V. VANDERBILT, 354 U.S. 416, A DECISION
WHICH I BELIEVE MUST EVENTUALLY BE RERATIONALIZED, IF NOT ENTIRELY
OVERRULED. 

THE VANDERBILT CASE WAS THIS.  THE VANDERBILT COUPLE WAS DOMICILED IN
CALIFORNIA.  MR. VANDERBILT WENT TO NEVADA, ESTABLISHED A NEW DOMICILE,
AND OBTAINED AN EX PARTE (FN1) DIVORCE DECREE WHICH DID NOT PROVIDE FOR
ALIMONY PAYMENTS TO MRS. VANDERBILT.  IN THE MEANTIME MRS. VANDERBILT
WHEN TO NEW YORK.  AFTER THE NEVADA DECREE HAD BECOME FINAL, SHE SUED
IN NEW YORK FOR SUPPORT UNDER NEW YORK LAW, SEQUESTERING MR.
VANDERBILT'S PROPERTY LOCATED THERE.  NEW YORK ORDERED SUPPORT
PAYMENTS, REJECTING FULL-FAITH-AND-CREDIT ARGUMENTS BASED ON THE NEVADA
DECREE.  OVER DISSENTS BY MR. JUSTICE FRANKFURTER AND MYSELF (354 U.S.,
AT 419, 428) THE COURT AFFIRMED THE NEW YORK AWARD, HOLDING THAT
BECAUSE THE NEVADA COURT HAD NO PERSONAL JURISDICTION OVER MRS.
VANDERBILT, "THE NEVADA DECREE, TO THE EXTENT IT PURPORTED TO AFFECT
THE WIFE'S RIGHT TO SUPPORT, WAS VOID  ...  ."  354 U.S., AT 419. 

TWO RULES EMERGED FROM THE CASE, NEITHER OF WHICH, I SUGGEST WITH
DEFERENCE, COMMENDS ITSELF:  (1) AN EX PARTE DIVORCE CAN HAVE NO EFFECT
ON PROPERTY RIGHTS; (2) A STATE IN WHICH A WIFE SUBSEQUENTLY
ESTABLISHES DOMICILE CAN AWARD SUPPORT TO HER REGARDLESS OF HER
CONNECTION WITH THAT STATE AT THE TIME OF THE EX PARTE DIVORCE AND
REGARDLESS OF THE LAW IN HER FORMER STATE OF DOMICILE.  (FN2) 

THE FIRST RULE SLIPS UNOBTRUSIVELY INTO OBLIVION IN TODAY'S DECISION,
FOR FLORIDA IS ALLOWED TO TURN PROPERTY RIGHTS ON ITS EX PARTE DECREE. 
A CONCURRENCE DISPUTES THIS, BUT I DO NOT UNDERSTAND HOW THE COURT'S
LANGUAGE IN THIS CASE CAN BE READ AS ANYTHING LESS.  IF I MAY
PARAPHRASE ONLY SLIGHTLY, THE COURT SAYS, "INSOFAR AS PETITIONER ARGUES
THAT SINCE SHE WAS NOT SUBJECT TO THE JURISDICTION OF THE FLORIDA
DIVORCE COURT, ITS DECREE COULD NOT EXTINGUISH ANY DOWER RIGHT EXISTING
UNDER FLORIDA LAW, VANDERBILT V. VANDERBILT, 354 U.S. 416, 418, THE
ANSWER IS THAT THE FLORIDA DECREE EXTINGUISHED PETITIONER'S DOWER
RIGHTS."  ANTE, P. 85.  THE COURT GOES ON TO STATE AND ACCEPT THE
FLORIDA LAW THAT AN EX PARTE DIVORCE EXTINGUISHES DOWER RIGHTS.  I DO
NOT SEE HOW A WITHDRAWAL FROM THE DUE PROCESS PHASE OF VANDERBILT COULD
BE CLEARER. 

BECAUSE NEW YORK WAS PETITIONER'S STATE OF DOMICILE AT ALL TIMES
RELEVANT TO THIS CASE AND DID NOT PURPORT TO INVEST HER WITH ANY RIGHTS
TO PROPERTY BEYOND THOSE SHE RECEIVED FROM HER HUSBAND, THE SECOND RULE
IS NOT INVOLVED HERE.  MY HOPE IS THAT ITS TIME WILL COME TOO.  I
CONTINUE TO BELIEVE THAT THE VIEWS EXPRESSED IN MY VANDERBILT DISSENT
EMBODY A MORE SATISFACTORY AND WORKABLE APPROACH TO THE LAW OF
"DIVISIBLE DIVORCE" (ESTIN V. ESTIN, 334 U.S. 541) THAN CAN BE
DISTILLED FROM EXISTING COURT OPINIONS. 

FN1  "EX PARTE" THROUGHOUT THIS OPINION IS USED TO DENOTE A SITUATION
IN WHICH THE DIVORCE COURT HAS NOT OBTAINED PERSONAL JURISDICTION OVER
THE DEFENDANT SPOUSE. 

FN2  THE VANDERBILT RESULT MIGHT HAVE BEEN PROPER ON ANY OF THREE
GROUNDS.  (1) IF NEW YORK WAS MR. VANDERBILT'S STATE OF DOMICILE AT THE
TIME OF THE EX PARTE NEVADA DIVORCE, NEW YORK LAW INVESTING A WIFE WITH
SUPPORT RIGHTS SHOULD NOT BE OVERBORNE BY AN EX PARTE DECREE IN ANOTHER
STATE.   (2) IF CALIFORNIA WAS MRS. VANDERBILT'S DOMICILE AT THE TIME
OF THE NEVADA DIVORCE AND UNDER CALIFORNIA LAW SUPPORT COULD HAVE BEEN
AWARDED, NEW YORK SHOULD ALSO BE FREE (THOUGH NOT BOUND) TO AWARD
SUPPORT.  (3) IF MR. VANDERBILT OWNED PROPERTY IN NEW YORK AT THE TIME
OF THE EX PARTE DIVORCE, NEW YORK MIGHT ARGUABLY BE FREE TO HOLD THAT
OWNERSHIP OF NEW YORK PROPERTY CARRIES WITH IT THE OBLIGATION TO
SUPPORT ONE'S WIFE, AT LEAST TO THE EXTENT OF THE VALUE OF THAT
PROPERTY.    THE COURT DID NOT CONCERN ITSELF WITH THE LOCATION OF MRS.
VANDERBILT'S DOMICILE OR MR. VANDERBILT'S PROPERTY AT THE TIME OF THE
NEVADA DIVORCE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 
I AGREE COMPLETELY WITH THE COURT'S JUDGMENT AND OPINION, AND ADD
THESE FEW WORDS ONLY IN REPLY TO THE SUGGESTION OF MY BROTHER HARLAN
THAT THE COURT HERE IS MAKING "A PARTIAL RETREAT FROM VANDERBILT V.
VANDERBILT, 354 U.S. 416."  I DO NOT THINK THAT TODAY'S DECISION MARKS
ANY "RETREAT" AT ALL FROM THE OPINION OR HOLDING IN VANDERBILT, AND I
DO NOT UNDERSTAND THE COURT SO TO REGARD IT.  VANDERBILT HELD THAT A
WIFE'S RIGHT TO SUPPORT COULD NOT BE CUT OFF BY AN EX PARTE DIVORCE. 
IN THE CASE BEFORE US, MRS. SIMONS' FLORIDA DOWER WAS NOT TERMINATED BY
THE EX PARTE DIVORCE.  IT SIMPLY NEVER CAME INTO EXISTENCE.  NO ONE
DISPUTES THAT THE EX PARTE DIVORCE WAS EFFECTIVE TO END THE MARRIAGE,
SO THAT AFTER IT MRS. SIMONS WAS NO LONGER MR. SIMONS' WIFE.  FLORIDA
LAW, AS THE COURT'S OPINION SHOWS, GRANTS DOWER ONLY TO A WOMAN WHO IS
THE LEGAL WIFE OF THE HUSBAND WHEN HE DIES.  MRS. SIMONS THEREFORE HAD
NO PROPERTY RIGHTS CUT OFF BY THE DIVORCE.  SHE SIMPLY HAD HER MARRIAGE
ENDED BY IT, AND FOR THAT REASON WAS NOT A "WIDOW" WITHIN THE MEANING
OF THE FLORIDA LAW.  UNLESS THIS COURT WERE TO MAKE THE NOVEL
DECLARATION THAT FLORIDA CANNOT LIMIT DOWER RIGHTS TO WIDOWS, I SEE NO
POSSIBLE WAY IN WHICH THE VANDERBILT CASE, WHICH DEALT WITH RIGHTS
WHICH A STATE DID GIVE TO DIVORCED WIVES, COULD BE THOUGHT TO APPLY. 

MR. JUSTICE STEWART AND MR. JUSTICE GOLDBERG, DISSENTING. 

WE WOULD DISMISS THE WRIT OF CERTIORARI IN THIS CASE AS IMPROVIDENTLY
GRANTED, BELIEVING THAT, AS THE COURT'S OPINION CLEARLY DEMONSTRATES,
NO FEDERAL QUESTION IS PRESENTED.  THERE EXISTS NO QUESTION UNDER THE
FULL FAITH AND CREDIT CLAUSE, BECAUSE SOL SIMONS, EVEN AFTER HIS
FLORIDA DIVORCE, "COMPLIED WITH THE FULL MEASURE OF THE NEW YORK
DECREE," ANTE, AT 84. 

NO OTHER FEDERAL QUESTION IS EVEN REMOTELY SUGGESTED IN THE PRESENT
POSTURE OF THIS CASE.  PETITIONER ASSERTED IN HER PETITION FOR A WRIT
OF CERTIORARI THAT "THE COURTS OF FLORIDA HAVE DENIED TO THE WIDOW,
LUCY C. SIMONS, HER CONSTITUTIONAL PROPERTY RIGHTS TO WHICH SHE WAS
ENTITLED  ...  BY THE MERE SUBTERFUGE OF AN EX PARTE DIVORCE CASE IN
THE COURTS OF FLORIDA, WHERE THE FLORIDA COURT DID NOT HAVE
JURISDICTION BECAUSE OF THE LACK OF PROPER RESIDENCE."  WE WERE ADVISED
AT ORAL ARGUMENT BY PETITIONER'S COUNSEL, HOWEVER, THAT PETITIONER NO
LONGER CHALLENGED THE JUDGMENT BELOW INSOFAR AS IT EMBODIED A HOLDING
THAT THE 1952 FLORIDA DIVORCE DECREE WAS VALID AND TERMINATED THE
MARITAL STATUS OF THE PARTIES. 

THE ONLY POSSIBLE QUESTIONS WHICH REMAIN IN THIS CASE, THEREFORE, ARE
QUESTIONS OF STATE LAW WHICH ARE OF NO PROPER CONCERN TO THIS COURT. 
..END :




















FEDERAL POWER COMMISSION V. UNION ELECTRIC CO. 381 U.S. 90 


NO. 123.  ARGUED MARCH 2, 1965.  - DECIDED MAY 3, 1965.  - 326 F.2D 535,
REVERSED. 


RESPONDENT FILED A DECLARATION OF INTENTION WITH THE FEDERAL POWER
COMMISSION (FPC) PURSUANT TO SEC. 23(B) OF THE FEDERAL POWER ACT TO
CONSTRUCT A PUMPED STORAGE PLANT ON A NONNAVIGABLE TRIBUTARY OF A
NAVIGABLE STREAM.  A PUMPED STORAGE PLANT USES POWER DURING PERIODS OF
NONPEAK DEMANDS TO PUMP WATER TO AN UPPER POOL TO BE USED TO GENERATE
PEAK-PERIOD ENERGY BY WATER FALLING INTO A LOWER POOL.   THE FPC FOUND
THAT THE NONNAVIGABLE TRIBUTARY IS A STREAM OVER WHICH CONGRESS HAS
JURISDICTION AS IT IS A HEADWATER OF NAVIGABLE RIVER SYSTEM.  THE FPC
HELD THAT THE PROJECT WOULD REQUIRE A LICENSE UNDER SEC. 23(B) BECAUSE
IT WOULD USE WATER POWER FOR THE INTERSTATE TRANSMISSION OF ELECTRICITY
AND BECAUSE IT WOULD AFFECT DOWNSTREAM NAVIGABILITY.  THE COURT OF
APPEALS REVERSED, FINDING THAT THE ONLY RELEVANT "COMMERCE" UNDER SEC.
23(B) IS THAT ON THE DOWNSTREAM NAVIGABLE WATERWAY AND THAT THE PROJECT
WOULD HAVE NO SIGNIFICANT IMPACT ON WATER COMMERCE.  HELD: 

1.  THE COMMERCE POWER OF CONGRESS CLEARLY ENCOMPASSES THE INTERSTATE
TRANSMISSION OF ELECTRIC ENERGY, AND THE PROJECT HERE IS WITHIN THE
PURVIEW OF THAT POWER, WITHOUT REGARD TO FEDERAL CONTROL OF TRIBUTARY
STREAMS AND NAVIGATION.  P. 94. 

2.  THE LANGUAGE OF THE LICENSING REQUIREMENT OF SEC. 23(B) INVOKES
THE FULL CONGRESSIONAL AUTHORITY OVER COMMERCE AND NOT MERELY THE
REGULATION OF NAVIGATION OR WATER COMMERCE.  PP. 95-98. 

3.  THE PURPOSES OF THE PREDECESSOR STATUTE, THE FEDERAL WATER POWER
ACT, WHICH INCLUDED THE COMPREHENSIVE DEVELOPMENT OF WATER POWER AND
HYDROELECTRIC ENERGY, ARE MORE FULLY SERVED BY CONSIDERING THE IMPACT
OF THE PROJECT ON THE FULL RANGE OF COMMERCE INTERESTS.  PP. 98-109. 

4.  SINCE THE ORIGINAL FEDERAL WATER POWER ACT WAS CONCERNED WITH THE
UTILIZATION OF WATER RESOURCES AND PARTICULARLY THE POWER POTENTIAL IN
WATER, THERE IS NO ANOMALY IN THE FPC'S POSITION THAT STEAM PLANTS
GENERATING ENERGY FOR INTERSTATE TRANSMISSION ARE NOT WITHIN THE SCOPE
OF SEC. 23(B), ALTHOUGH LOCATED ON A STREAM OVER WHICH CONGRESS HAS
JURISDICTION, WHILE SIMILAR HYDROELECTRIC FACILITIES ARE COVERED BY
SEC. 23(B).  PP. 109-110. 

FEDERAL POWER COMMISSION V. UNION ELECTRIC CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PERSON DESIRING TO CONSTRUCT A DAM OR OTHER PROJECT ON A NONNAVIGABLE
STREAM, BUT ONE OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS
AUTHORITY TO REGULATE COMMERCE, TO FILE A DECLARATION OF INTENTION WITH
THE FEDERAL POWER COMMISSION.  IF THE COMMISSION FINDS THAT "THE
INTERESTS OF INTERSTATE OR FOREIGN COMMERCE WOULD BE AFFECTED BY SUCH
PROPOSED CONSTRUCTION," THE DECLARANT MAY NOT CONSTRUCT OR OPERATE THE
PROJECT WITHOUT A LICENSE.  THE ISSUE HERE IS WHETHER THE CONSTRUCTION
OF A PUMPED STORAGE HYDROELECTRIC PROJECT GENERATING ENERGY FOR
INTERSTATE TRANSMISSION IS ONE WHICH WOULD AFFECT THE "INTERESTS OF
INTERSTATE OR FOREIGN COMMERCE" WITHIN THE INTENDMENT OF THE ACT. 

                            I. 

RESPONDENT UNION ELECTRIC CO. (UNION), OPERATING GENERATING PLANTS
AND AN INTERCONNECTED TRANSMISSION AND DISTRIBUTION SYSTEM IN MISSOURI,
ILLINOIS, AND IOWA, FILED A DECLARATION OF INTENTION PURSUANT TO SEC.
23(B) TO CONSTRUCT A PUMPED STORAGE HYDROELECTRIC FACILITY, THE TAUM
SAUK INSTALLATION, AS A PART OF UNION'S INTERSTATE SYSTEM.  THE PUMPED
STORAGE PLANT, AN ENGINEERING INNOVATION OF GROWING USE, IS TO
SUPPLEMENT THE ENERGY PRODUCED BY OTHER PLANTS DURING PERIODS OF PEAK
DEMANDS.  DURING SUCH PERIODS IT GENERATES ENERGY THROUGH USE OF
HYDROELECTRIC UNITS DRIVEN BY WATER FALLING FROM AN ELEVATED RESERVOIR
INTO A LOWER POOL.  (FN3)  DURING OFF-PEAK PERIODS IT USES ENERGY FROM
OTHER SOURCES TO PUMP WATER FROM THE LOWER POOL BACK TO THE HEADWATER
POOL.  (FN4)  THE PROJECT IS CAPABLE OF CREATING UP TO 350 MEGAWATTS
AND THE ENERGY CREATED WILL BE UTILIZED IN MISSOURI, ILLINOIS, AND
POSSIBLY IOWA.  TAUM SAUK IS TO BE LOCATED ON THE EAST FORT OF THE
BLACK RIVER, ABOUT FOUR MILES ABOVE THE CONFLUENCE OF THESE WATERS. 
(FN5)  THE EAST FORK IS A NONNAVIGABLE TRIBUTARY OF THE BLACK RIVER,
ITSELF A NAVIGABLE STREAM ALONG WITH THE WHITE RIVER INTO WHICH IT
FLOWS. 

THE FPC FOUND THE EAST FORK WAS A STREAM "OVER WHICH CONGRESS HAS
JURISDICTION UNDER ITS AUTHORITY TO REGULATE COMMERCE," SINCE IT IS A
HEADWATER OF A NAVIGABLE RIVER SYSTEM.  THE PROJECT WOULD AFFECT THE
INTERESTS OF COMMERCE AND WOULD REQUIRE A LICENSE, THE FPC ALSO HELD,
BOTH BECAUSE IT CONTEMPLATED THE UTILIZATION OF WATER POWER FOR THE
INTERSTATE TRANSMISSION OF ELECTRICITY AND BECAUSE IT WOULD AFFECT
DOWNSTREAM NAVIGABILITY, 27 F.P.C.  801.  THE COURT OF APPEALS
REVERSED, 326 F.2D 535 (C.A. 8TH CIR.) HOLDING THAT THE ONLY "COMMERCE"
WHICH IS RELEVANT TO THE FPC'S DETERMINATION UNDER SEC. 23(B) IS
COMMERCE ON THE DOWNSTREAM NAVIGABLE WATERWAY AND THAT THE PROJECT IN
QUESTION WOULD HAVE NO SIGNIFICANT IMPACT ON WATER COMMERCE.  (FN6)
ABSENT AN EFFECT ON DOWNSTREAM NAVIGABILITY, OR ON IRRIGATION
DEVELOPMENT, FLOOD CONTROL PROJECTS OR PLANNED UTILIZATION OF WATER
RESOURCES, MATTERS WHICH MIGHT AFFECT THE INTERESTS OF WATER COMMERCE,
A WATER POWER PROJECT LOCATED ON THE HEADWATERS OF A NAVIGABLE RIVER IS
A "LOCAL" ACTIVITY BEYOND THE LICENSING POWER AND CONSEQUENT REGULATORY
CONTROLS OF THE FPC.  BECAUSE THE QUESTION IS AN UNRESOLVED ONE OF
JURISDICTION OVER AN IMPORTANT CLASS OF HYDROELECTRIC PROJECTS, WE
GRANTED CERTIORARI, 379 U.S. 812, AND NOW REVERSE THE JUDGMENT OF THE
COURT OF APPEALS.  WE HAVE DETERMINED THAT ITS LIMITATION OF THE FPC'S
LICENSING POWER TO PROJECTS AFFECTING COMMERCE ON NAVIGABLE WATERS IS
FOUNDED UPON AN ERRONEOUS READING OF THE LANGUAGE OF SEC. 23(B) AND THE
DESIGN AND PURPOSES OF THE FEDERAL WATER POWER ACT. 

                                       II. 

TO FOCUS THE INQUIRY, IT IS WELL TO STATE WHAT IS NOT INVOLVED IN
THIS CASE.  THERE IS NO QUESTION THAT THE INTERSTATE TRANSMISSION OF
ELECTRIC ENERGY IS FULLY SUBJECT TO THE COMMERCE POWERS OF CONGRESS. 
PUBLIC UTILITIES COMM'N V. ATTLEBORO STEAM & ELEC.  CO., 273 U.S. 83,
86; ELECTRIC BOND & SHARE CO. V. SECURITIES & EXCHANGE COMM'N, 303 U.S.
419, 432-433.  NOR IS THERE ANY DOUBT TODAY THAT PROJECTS GENERATING
ENERGY FOR SUCH TRANSMISSION, SUCH AS TAUM SAUK, AFFECT COMMERCE AMONG
THE STATES AND THERFORE ARE WITHIN THE PURVIEW OF THE COMMERCE POWER,
QUITE WITHOUT REGARD TO THE FEDERAL CONTROL OF TRIBUTARY STREAMS AND
NAVIGATION.  SEE LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S.
1, 40-41; LABOR BOARD V. FRUEHAUF TRAILER CO., 301 U.S. 49;
CONSOLIDATED EDISON V. LABOR BOARD, 305 U.S. 197; KATZENBACH V.
MCCLUNG, 379 U.S. 294, 301-304.  BUT SEE UNITED STATES V. APPALACHIAN
POWER CO., 107 F.2D 769, REV'D ON OTHER GROUNDS, 311 U.S. 377.  (FN7)
THUS, THERE ARE NO CONSTITUTIONAL DOUBTS OR BARRIERS TO THE FPC'S
INTERPRETATION.  THE ONLY QUESTION IS WHETHER CONGRESS HAS REQUIRED A
LICENSE FOR A WATER POWER PROJECT UTILIZING THE HEADWATERS OF A
NAVIGABLE RIVER TO GENERATE ENERGY FOR AN INTERSTATE POWER SYSTEM.  WE
THINK AN AFFIRMATIVE ANSWER IS REQUIRED BY BOTH THE LANGUAGE AND
PURPOSES OF THE ACT. 

THE LANGUAGE OF THE ACT, IN OUR VIEW, PLAINLY REQUIRES A LICENSE IN
THE CIRCUMSTANCES OF THIS CASE.  SECTION 23(B) (FN3) PROHIBITS
CONSTRUCTION OF NONLICENSED HYDROELECTRIC PROJECTS ON NAVIGABLE
STREAMS, REGARDLESS OF ANY EFFECT, DETRIMENTAL OR BENEFICIAL, ON
NAVIGATION OR COMMERCE BY WATER AND REQUIRES THOSE PROPOSING A PROJECT
ON A NONNAVIGABLE STREAM TO FILE A DECLARATION OF INTENTION AND TO COME
BEFORE THE COMMISSION FOR A DETERMINATION OF WHETHER THE "INTERESTS OF
INTERSTATE OF FOREIGN COMMERCE WOULD BE AFFECTED," A DETERMINATION
WHICH OBVIOUSLY DOES NOT SPEAK IN TERMS OF THE INTERESTS OF NAVIGATION
OR WATER COMMERCE.  PLAINLY THE PROVISION DOES NOT REQUIRE A LICENSE
ONLY WHERE "THE INTERESTS OF INTERSTATE OR FOREIGN COMMERCE ON
NAVIGABLE WATERS WOULD BE AFFECTED."  ALTHOUGH TRANSPORTATION ON
INTERSTATE WATERWAYS IS INTERSTATE COMMERCE, THE PHRASE "AFFECT THE
INTERESTS OF COMMERCE" ON ITS FACE HARDLY SUPPORTS ANY CLAIM THAT
CONGRESS SOUGHT TO REGULATE ONLY SUCH TRANSPORTATION.  RATHER, IT
STRONGLY IMPLIES THAT CONGRESS DREW UPON ITS FULL AUTHORITY UNDER THE
COMMERCE CLAUSE, INCLUDING BUT NOT LIMITED TO ITS POWER OVER WATER
COMMERCE.  "HALF A DOZEN ENACTMENTS, OTHER THAN THE NATIONAL LABOR
RELATIONS ACT, ARE SUFFICIENT TO ILLUSTRATE THAT WHEN CONGRESS WANTS TO
BRING ASPECTS OF COMMERCE WITHIN THE FULL SWEEP OF ITS CONSTITUTIONAL
AUTHORITY, IT MANIFESTS ITS PURPOSE BY REGULATING NOT ONLY 'COMMERCE'
BUT ALSO MATTERS WHICH 'AFFECT,' 'INTERRUPT,' OR 'PROMOTE' INTERSTATE
COMMERCE  ...  .  IN SO DESCRIBING THE RANGE OF ITS CONTROL, CONGRESS
IS NOT INDULGING STYLISTIC PREFERENCES."  POLISH NATIONAL ALLIANCE V.
LABOR BOARD, 322 U.S. 643, 647. 

THE SCOPE OF THIS LANGUAGE IS NOT RESTRICTED BY THE EARLIER CLAUSE IN
SEC. 23(B) LIMITING THE FILING REQUIREMENTS TO PROJECTS ON NONNAVIGABLE
STREAMS "OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS AUTHORITY TO
REGULATE COMMERCE" THAT IS, TRIBUTARIES OF RIVER SYSTEMS NECESSITATING
SUPERVISORY POWER TO PRESERVE OR IMPROVE DOWNSTREAM NAVIGABILITY OR
WATER COMMERCE GENERALLY.  SEE UNITED STATES V. RIO GRANDE DAM &
IRRIGATION CO., 174 U.S. 690; PHILLIPS V. GUY F. ATKINSON CO., 313 U.S.
508.  THIS LANGUAGE MERELY DESIGNATES THOSE WHO MUST FILE A DECLARATION
OF INTENTION - ALL THOSE WHO WOULD LOCATE A WATER POWER PROJECT ON A
NONNAVIGABLE STREAM WITHIN THE JURISDICTION OF CONGRESS ARE REQUIRED TO
DECLARE THEIR INTENTION SO THAT THE COMMISSION MAY DETERMINE THE
NECESSITY FOR A LICENSE.  CONGRESS THEN PROCEEDS TO INVOKE ITS FULL
AUTHORITY OVER COMMERCE, WITHOUT QUALIFICATION, TO DEFINE WHAT PROJECTS
ON NONNAVIGABLE STREAMS ARE REQUIRED TO BE LICENSED.  RESPONDENT
ASSERTS THAT COMMERCE MUST MEAN THE SAME THING IN BOTH THE FILING AND
THE LICENSING REQUIREMENTS OF SEC. 23(B); BECAUSE OF THE ALLUSION TO
WATER COMMERCE IN THE FILING PROVISION, THE COMMISSION'S INQUIRY INTO
THE EFFECT OF THE PROJECT ON COMMERCE MUST BE LIMITED TO THE SOURCE OF
CONGRESS' POWER OVER THE STREAM.  NOTHING IN THE STRUCTURE OF SYNTAX OF
SEC. 23(B) COMPELS THIS CONCLUSION.  INDEED, IN DESCRIBING IN DISTINCT
TERMS THE STANDARD FOR WHO MUST FILE AND WHAT MUST BE LICENSED, (FN9)
THE MORE COMPELLING INFERENCE IS THAT CONGRESS INTENDED THE INQUIRY
INTO THE PROJECT'S EFFECT ON COMMERCE TO INCLUDE, BUT NOT BE LIMITED
TO, EFFECT ON DOWNSTREAM NAVIGABILITY.  (FN10) 

TURNING TO THE PURPOSES OF THE FEDERAL WATER POWER ACT, ENACTED IN
1920, WE FIND NOTHING WHICH CASTS SERIOUS DOUBT UPON OUR READING OF
SEC. 23(B) OR WHICH INDICATES THAT THE COMMISSION WAS TO RESTRICT ITS
CONSIDERATIONS UNDER SEC. 23(B) TO EFFECT NAVIGABILITY.  THERE IS MUCH
TO INDICATE THE CONTRARY. 

THE CENTRAL PURPOSE OF THE FEDERAL WATER POWER ACT WAS TO PROVIDE FOR
THE COMPREHENSIVE CONTROL OVER THOSE USES OF THE NATION'S WATER
RESOURCES IN WHICH THE FEDERAL GOVERNMENT HAD A LEGITIMATE INTEREST;
THESE USES INCLUDED NAVIGATION, IRRIGATION, FLOOD CONTROL, AND, VERY
PROMINENTLY, HYDROELECTRIC POWER - USES WHICH, WHILE UNREGULATED, MIGHT
WELL BE CONTRADICTORY RATHER THAN HARMONIOUS.  (FN11)  PRIOR
LEGISLATION IN 1890 AND THE RIVERS AND HARBORS ACT OF 1899, (FN12)
PROHIBITING THE ERECTION OF ANY OBSTRUCTION TO NAVIGATION, INCLUDING
THOSE ON NONNAVIGABLE FEEDERS, UNITED STATES V. RIO GRANDE DAM &
IRRIGATION CO., 174 U.S. 690, AND REQUIRING THE CONSENT OF CONGRESS AND
APPROVAL OF THE SECRETARY OF WAR BEFORE CONSTRUCTING A BRIDGE, DAM, OR
DIKE ALONG OR IN NAVIGABLE WATERS, WAS THOUGHT INADEQUATE, FOR IT
ACCOMMODATED ONLY THE FEDERAL INTEREST IN NAVIGATION.  AS THIS COURT
HAS HAD OCCASION TO NOTE BEFORE, THE 1920 FEDERAL WATER POWER ACT "WAS
THE OUTGROWTH OF A WIDELY SUPPORTED EFFORT OF THE CONSERVATIONISTS TO
SECURE ENACTMENT OF A COMPLETE SCHEME OF NATIONAL REGULATION WHICH
WOULD PROMOTE THE COMPREHENSIVE DEVELOPMENT OF THE WATER RESOURCES OF
THE NATION, IN SO FAR AS IT WAS WITHIN THE REACH OF THE FEDERAL POWER
TO DO SO  ...  ."   FIRST IOWA HYDRO-ELECTRIC COOP.  V. FEDERAL POWER
COMM'N, 328 U.S. 152, 180.  THE PRINCIPAL USE TO BE DEVELOPED AND
REGULATED IN THE ACT, AS ITS TITLE INDICATES, WAS THAT OF HYDROELECTRIC
POWER TO MEET THE NEEDS OF AN EXPANDING ECONOMY.  (FN13) 

THE PROVISIONS OF THE ACT REFLECT THESE OBJECTIVES.  THE PREFACE
STATES THAT BESIDES NAVIGATION AND THE CREATION OF THE COMMISSION, THE
ACT WAS "TO PROVIDE FOR THE  ...  DEVELOPMENT OF WATER POWER; THE USE
OF THE PUBLIC LANDS IN RELATION THERETO  ...  AND FOR OTHER PURPOSES." 
41 STAT. 1063.   SECTION 10(A), AS AMENDED, REQUIRES AS A CONDITION FOR
OBTAINING A LICENSE THAT THE PROPOSED PROJECT "BE SUCH AS IN THE
JUDGMENT OF THE COMMISSION WILL BE BEST ADAPTED TO A COMPREHENSIVE PLAN
FOR IMPROVING OR DEVELOPING A WATERWAY OR WATERWAYS FOR THE USE OR
BENEFIT OF INTERSTATE OR FOREIGN COMMERCE, FOR THE IMPROVEMENT AND
UTILIZATION OF WATER-POWER DEVELOPMENT, AND FOR OTHER BENEFICIAL PUBLIC
USES  ...  ."  (FN14)  OTHER PROVISIONS REGULATE THE OPERATIONS,
SERVICES, CHARGES, AND DURATION OF HYDROELECTRIC PLANTS, (FN15)
"PROVISIONS  ...  NOT ESSENTIAL TO OR EVEN CONCERNED WITH NAVIGATION AS
SUCH," BUT WHICH "HAVE AN OBVIOUS RELATIONSHIP TO THE EXERCISE OF THE
COMMERCE POWER."   UNITED STATES V. APPALACHIAN POWER CO., 311 U.S.
377, 424, 427.  IN ORDER TO INSURE COMPREHENSIVE CONTROL OVER THE
UTILIZATION OF THE NATION'S WATERWAYS, "NAVIGABLE STREAM" WAS BROADLY
DEFINED TO INCLUDE THE INTERRUPTING FALLS, SHALLOWS, RAPIDS AND THE
WATERWAYS AUTHORIZED BY OR RECOMMENDED TO CONGRESS FOR IMPROVEMENT;
(FN16) AND OTHER RECOGNIZED SOURCES OF FEDERAL AUTHORITY WERE INVOKED,
SUCH AS JURISDICTION OVER PUBLIC LANDS AND NATIONAL FORESTS.  (FN17) 

IF THE COMPREHENSIVE DEVELOPMENT OF WATER POWER, "IN SO FAR AS IT WAS
WITHIN THE REACH OF THE FEDERAL POWER TO DO SO," FIRST IOWA HYDRO
ELECTRIC COOP.  V. FEDERAL POWER COMM'N, 328 U.S., AT 180, WAS THE
CENTRAL THRUST OF THE ACT, THERE IS OBVIOUSLY LITTLE MERIT TO THE
ARGUMENT THAT SEC. 23(B) REQUIRES A LICENSE WHEN THE INTERESTS OF WATER
COMMERCE ARE AFFECTED BUT DISPENSES WITH THE LICENSE WHEN OTHER
COMMERCE INTERESTS ARE VITALLY INVOLVED.  THE PURPOSES OF THE ACT ARE
MORE FULLY SERVED IF THE COMMISSION MUST, AS IT HELD IN THIS CASE,
CONSIDER THE IMPACT OF THE PROJECT ON THE FULL SPECTRUM OF COMMERCE
INTERESTS. 

                                     II. 

UNION'S EARNEST POSITION, HOWEVER, IS THAT THE LEGISLATIVE HISTORY OF
THE ACT REVEALS A MORE LIMITED PURPOSE AND REQUIRES A NARROWER
CONSTRUCTION OF SEC. 23(B).  THE CORE OF THE ARGUMENT IS THAT THE
CONSTITUTIONAL BASIS FOR THE ACT GENERALLY AND FOR SEC 23(B) IN
PARTICULAR WAS THE AUTHORITY OF CONGRESS OVER NAVIGATION, THAT CONGRESS
INVOKED ONLY THIS POWER, AND NO OTHER, AND THAT SEC. 23(B) ACCORDINGLY
PROVIDES FOR NO GREATER CONTROL OVER PROJECTS ON NONNAVIGABLE STREAMS
THAN IS NECESSARY TO PROTECT DOWNSTREAM NAVIGABILITY.  ON THESE
MATTERS, IT IS SAID, BOTH CONSERVATIONISTS AND OPPONENTS OF THE ACT
AGREED.  MOREOVER, THE ARGUMENT CONTINUES, THE LIMITED REACH OF SEC.
23(B) IS CONFINED BY THE REPEATED REFERENCES TO NAVIGATION AND TO
CONGRESSIONAL POWER OVER IT IN THE COURSE OF COMMITTEE HEARINGS AND
REPORTS ON THE 1935 AMENDMENTS TO THE ACT.    WE CANNOT DISTILL AS MUCH
AS UNION DOES FROM THE LONG AND INTENSE LEGISLATIVE STRUGGLE TO ENACT
WHAT WAS DECIDED INNOVATION IN FEDERAL POLICY.  THE ACT UNQUESTIONABLY
INVOLVED AN INVOCATION OF THE CONGRESSIONAL POWER OVER NAVIGATION UNDER
THE COMMERCE CLAUSE, SINCE IT REQUIRED A LICENSE TO BUILD ANY WATER
POWER PROJECT ON A NAVIGABLE STREAM, BROADLY DEFINED, (FN18) REGARDLESS
OF ANY ACTUAL EFFECT ON NAVIGATION.  THERE WAS, CONSEQUENTLY,
CONSIDERABLE DEBATE ABOUT THE SCOPE AND EXTENT OF THE FEDERAL POWER
OVER RIVER NAVIGATION, ABOUT THE DEFINITION OF "NAVIGABLE WATERS" AND
ABOUT THE AUTHORITY OF CONGRESS TO IMPOSE CONTROLS AND CONDITIONS
HAVING LITTLE RELEVANCE TO THE PROTECTION OF NAVIGATION.  (FN19)  SOME
THOUGHT THE COMMERCE CLAUSE DID NOT EXTEND TO ANYTHING BUT THE
NAVIGABLE MAINSTREAM ITSELF, AND THEN ONLY FOR THE PURPOSE OF
PRESERVING OR IMPROVING WATER TRANSPORTATION.  THIS BROAD OBJECTION TO
THE ACT FOUND EXPRESSION IN REMARKS DIRECTED AT SEC. 23(B) AND IN
ASSERTIONS THAT THE POWER OVER NAVIGATION WAS NOT SUFFICIENT TO REQUIRE
THE LICENSING OF PROJECTS ON NONNAVIGABLE STREAMS, SAVE PERHAPS WHERE
DOWNSTREAM NAVIGABILITY WAS SUBSTANTIALLY AFFECTED.  (FN20)  SINCE THE
OPPONENTS OF THE ACT MOUNTED A MAJOR ATTACK ON THE FEDERAL POWER OVER
NAVIGATION, AND THIS WAS A WELL-RECOGNIZED BASIS OF COMMERCE CLAUSE
AUTHORITY, THE PROPONENTS DEFENDED ON THIS GROUND.  NAVIGATION AND
FEDERAL POWER OVER IT HENCE PERMEATED THE DEBATES, AND STATEMENTS
REFLECTING THE UNDERSTANDINGS AND DISAGREEMENTS OVER THESE ISSUES
UNDERSTANDABLY CONSTITUTE A CONSIDERABLE PART OF THE CONTEXT IN WHICH
THE ACT WAS ENACTED. 

BUT NONE OF THIS HISTORY CAN FAIRLY BE SAID TO MEET, MUCH LESS
DETERMINE, THE QUESTION PRESENTED HERE.  THAT QUESTION IS NOT WHETHER
CONGRESS EXERCISED ITS AUTHORITY OVER NAVIGATION IN THE FEDERAL WATER
POWER ACT, WHICH IT MOST ASSUREDLY DID, BUT WHETHER IN ENACTING
SEC.23(B) IT ALSO INVOKED ITS FULL COMMERCE CLAUSE AUTHORITY OVER
HYDROELECTRIC PROJECTS LOCATED ON WATERS SUBJECT TO FEDERAL
JURISDICTION.  THE FACT THAT THERE WERE DEBATES OVER THE EXTENT OF
FEDERAL POWER OVER NAVIGATION, OR OVER NAVIGABLE OR NONNAVIGABLE
STREAMS, SHEDS LITTLE LIGHT ON WHETHER CONGRESS DID, OR DID NOT, INTEND
TO RELY ON OTHER ASPECTS OF ITS POWER OVER COMMERCE WHEN IT DIRECTED A
COMMISSION DETERMINATION OF THE EFFECTS OF A PROPOSED PROJECT ON THE
"INTERESTS OF COMMERCE."  IT IS TRUE THAT THE DEBATES ON SEC. 23(B),
TAKING THE COURSE THAT THEY DID, CONTAIN NO EXPRESS REFERENCES TO
INTERSTATE COMMERCE IN ELECTRICAL ENERGY, PERHAPS BECAUSE THE AUTHORITY
TO REGULATE THE PRODUCTION OF GOODS DESTINED FOR INTERSTATE SHIPMENT
WAS FAR LESS DEFINED AND UNDERSTOOD AT THAT TIME, SEE HAMMER V.
DAGENHART, 247 U.S. 251, DECIDED IN 1918, AND PERHAPS BECAUSE NO ONE
WAS INCLINED TO INJECT OTHER CONSTITUTIONAL ISSUES INTO THE ONGOING
DEBATES.  (FN21)  BUT THE ACT WHICH EMERGED FROM THESE DEBATES, AND
SEC. 23(B) IN PARTICULAR, WAS COUCHED IN TERMS WHICH REACHED BEYOND THE
CONTROL OF NAVIGATION AND FORMS NO SUPPORT FOR THE PROPOSITION THAT
CONGRESS INTENDED TO EQUATE THE "INTERESTS OF COMMERCE" WITH THOSE OF
NAVIGATION.  (FN22) 

INDEED, THIS HISTORY INDICATES THAT CONGRESS WAS DIFFERENTIATING
BETWEEN THE TWO.  THE HOUSE VERSION OF SEC. 23(B) GRANTED PERMISSION TO
CONSTRUCT A DAM ON A NONNAVIGABLE STREAM AND PROVIDED FOR A LICENSE IF
THE COMMISSION FOUND THE IMPROVEMENT JUSTIFIED FOR THE PURPOSE OF
IMPROVING OR DEVELOPING THE WATERWAY "FOR THE USE OR BENEFIT OF
NAVIGATION IN INTERSTATE OR FOREIGN COMMERCE."  (FN23)  THE SENATE
COMMITTEE, ALONG WITH THE EXPANSION OF THE DEFINITION OF NAVIGABLE
WATERS, AMENDED THIS TO REQUIRE THE COMMISSION TO MAKE AN IMMEDIATE
INVESTIGATION AND TO PROHIBIT THE CONSTRUCTION WITHOUT A LICENSE IF THE
COMMISSION FOUND THAT "THE INTERSTS OF INTERSTATE OR FOREIGN COMMERCE
WOULD BE AFFECTED."  (FN24)  ONLY IF THE COMMISSION DID NOT SO FIND WAS
THE DECLARANT GRANTED PERMISSION TO CONSTRUCT UPON COMPLIANCE WITH
STATE LAWS.  NO ONE OFFERED ANY EXPLANATION FOR THE SUBSTITUTION OF THE
INCLUSIVE TERM "AFFECT THE INTERESTS OF INTERSTATE COMMERCE."  (FN25)
BUT CONSERVATIONISTS AND OPPONENTS SEEMED TO AGREE THAT THE ACT
EMBODIED THE FULL MEASURE OF CONGRESS' AUTHORITY UNDER THE COMMERCE
CLAUSE TO REGULATE HYDROELECTRIC PROJECTS.  (FN26)  AND THERE IS NO
EVIDENCE THAT THE SPONSORS OF THE ACT, WHO PREVAILED IN SECURING ITS
ENACTMENT IN THE BROAD TERMS THEY DRAFTED, INTENDED A CONSTRUCTION OF
INTERSTATE OR FOREIGN COMMERCE NARROWER THAN THEIR CONSTITUTIONAL
COUNTERPARTS.  IN THE FACE OF NUMEROUS OBJECTIONS TO THIS EXERCISE OF
FEDERAL AUTHORITY, WE FIND IT OF COMPELLING SIGNIFICANCE THAT THE
CONGRESS ADOPTED COMPREHENSIVE LANGUAGE AND REFRAINED FROM WRITING ANY
LIMITATION OR REFERENCE TO NAVIGATION INTO SEC. 23(B). 

THE MATERIALS CONCERNING THE 1935 AMENDMENTS DO NOT ALTER OUR
CONCLUSION.  HERE THE HEARINGS AND REPORTS CONTAINED REFERENCES TO
NAVIGATION AND TO THE FEDERAL AUTHORITY OVER NAVIGABLE AND NONNAVIGABLE
STREAMS.  (FN27)  THE HOUSE REPORT, FOR EXAMPLE, STATED THAT "EVERY
PERSON INTENDING TO CONSTRUCT A PROJECT WHICH MIGHT AFFECT NAVIGATION
WOULD BE REQUIRED TO COME TO THE COMMISSION FOR A DETERMINATION OF THE
INTERESTS OF THE UNITED STATES."  H.R. REP. NO. 1318, 74TH CONG., 1ST
SESS., 26.  TO THE SAME EFFECT, SEE S. REP. NO. 621, 74TH CONG., 1ST
SESS., 46-47.  SUCH STATEMENTS CLEARLY REFER TO THE FILING REQUIREMENT
OF SEC 23(B), WHICH WAS THE SUBJECT OF THE COMMITTEE AMENDMENT.  ONLY
PERSONS CONSTRUCTING PROJECTS ON NONNAVIGABLE FEEDERS OF NAVIGABLE
WATERS NEED FILE A DECLARATION OF INTENTION.  THE COMMITTEE STATEMENTS
ARE THUS QUITE ACCURATE IN THIS RESPECT, BUT THEY DO NOT ILLUMINATE THE
LICENSING PROVISION OF SEC. 23(B), AS DISTINCT FROM ITS FILING
REQUIREMENT, NOR DO THEY RESOLVE THE ISSUE OF WHICH PROJECTS AMONG
THOSE WHICH MIGHT AFFECT NAVIGATION ARE REQUIRED TO BE LICENSED.  THEY
DO NOT, EXPLICITLY OR IMPLICITLY, EXEMPT FROM LICENSING THOSE PROJECTS
HAVING NO EFFECT ON NAVIGATION.  THE REPORTS DO NOT EQUATE THE
"INTERESTS OF COMMERCE" WITH THOSE OF WATER TRANSPORTATION. 

IT IS TRUE THAT THERE ARE NO EXPRESS REFERENCES IN THE REPORTS OR THE
DEBATES TO OTHER ASPECTS OF THE COMMERCE POWER IN CONNECTION WITH SEC.
23(B), BUT THE REPORTS REFLECT THE SAME BROAD INTENT AS THE EARLIER
DELIBERATIONS TO SECURE FEDERAL CONTROL OVER ALL WATER POWER PROJECTS
INVOLVING THE UTILIZATION OF THE NATION'S RIVER SYSTEMS. 

"THE ACT WOULD BE GREATLY STRENGHTENED BY ENABLING THE COMMISSION TO
PRESERVE CONTROL OVER ALL PROJECTS WITH WHICH THE FEDERAL GOVERNMENT
HAS ANY VALID CONCERN."  S. REP. NO. 621, 74TH CONG., 1ST SESS., 47. 

SEE ALSO H.R. REP. NO. 1318, 74TH CONG., 1ST SESS., 26.  AND ON THE
FLOOR OF CONGRESS OBJECTIONS TO FEDERAL CONTROL OVER PROJECTS ON
NONNAVIGABLE STREAMS, SIMILAR TO THOSE VOICED IN 1920, WERE AGAIN
REJECTED AS INCONSISTENT WITH EFFECTIVE WATER POWER REGULATION.  79
CONG. REC. 10568.  MOREOVER, THERE WAS PROMPTLY ELIMINATED AN AMENDMENT
TO SEC. 23 WHICH WOULD HAVE REQUIRED A LICENSE ONLY WHEN THE "INTERESTS
OF INTERSTATE OR FOREIGN COMMERCE WOULD BE DIRECTLY AFFECTED OR
BURDENED BY SUCH PROPOSED CONSTRUCTION."  (FN28) 

NOR CAN WE IGNORE THE ACTUAL EFFECT OF THE FILING REQUIREMENT ADDED
IN 1935.  THE APPLICABLE PROVISION PRIOR TO THIS AMENDMENT, SEC. 9 OF
THE RIVERS AND HARBORS ACT, 30 STAT. 1151, FORBIDDING OBSTRUCTIONS TO
NAVIGATION, WAS ADEQUATE TO INSURE THAT PROJECTS WITH A SUBSTANTIAL
EFFECT ON DOWNSTREAM NAVIGABILITY WOULD BE BROUGHT BEFORE THE
COMMISSION.  PERSONS INTENDING TO CONSTRUCT A PROJECT WHICH WOULD
LIKELY HAVE NO SUCH EFFECT, SUCH AS SOME PURE PUMPED STORAGE
INSTALLATIONS, COULD DECLINE TO FILE A DECLARATION OF INTENTION WITH
IMPUNITY.  THUS THE 1935 AMENDMENT MADE A DIFFERENCE PRINCIPALLY IN
REGARD TO PROJECTS WHICH PREDICTABLY HAVE LITTLE, IF ANY, EFFECT ON
NAVIGATION BUT A SIGNIFICANT EFFECT ON INTERSTATE COMMERCE.  RESPONDENT
WOULD HAVE US ASSUME THIS DIFFERENCE WAS NOT INTENDED, ALTHOUGH BOTH
THE COMMITTEES STATED THAT THE AMENDMENT WOULD ENABLE "THE COMMISSION
TO PRESERVE CONTROL OVER ALL PROJECTS WITH WHICH THE FEDERAL GOVERNMENT
HAS ANY VALID CONCERN."  S. REP. NO. 621, 74TH CONG., 1ST SESS., 47;
H.R. REP. NO. 1318, 74TH CONG., 1ST SESS., 26.  IN LIGHT OF THE
NECESSARY PURPORT OF THIS AMENDMENT AND THE BREADTH OF THE FEDERAL
INTEREST IN HYDROELECTRIC PROJECTS EXPRESSED IN THE 1920 ACT, THE
PREOCCUPATION OF THE COMMISSION AND THE COMMITTEES WITH NAVIGATION,
WHILE NOT WITHOUT SIGNIFICANCE, DOES NOT OVERCOME THE CLEAR IMPORT OF
THE LANGUAGE AND THE PURPOSES OF THE ACT. 

THE RESPONDENT ASSERTS THAT AN ANOMALOUS CONSEQUENCE FLOWS FROM THE
COMMISSION'S CONSTRUCTION OF THE ACT AND ITS VIEW THAT STEAM PLANTS
GENERATING LARGE AMOUNTS OF ENERGY FOR INTERSTATE TRANSMISSION ARE NOT
WITHIN THE SCOPE OF SEC. 23(B), ALTHOUGH LOCATED ALONG A STREAM OVER
WHICH CONGRESS HAS JURISDICTION.  SINCE THE COMMISSION'S JURISDICTION
HERE RESTS SOLELY ON THE INTERSTATE TRANSMISSION OF ENERGY, THERE CAN
BE NO BASIS FOR DISTINGUISHING BETWEEN A STEAM PLANT AND A
HYDROELECTRIC FACILITY BOTH GENERATING ENERGY FOR INTERSTATE USE.  THE
COURT OF APPEALS, AFTER NOTING THAT THE GENERATION OF ELECTRIC ENERGY
IS A LOCAL OR INTRASTATE ACTIVITY, CONCLUDED FROM THIS ARGUMENT THAT
"THE COMMISSION'S JURISDICTION  ...  MUST LOGICALLY REST UPON ITS
DELEGATED CONGRESSIONAL JURISDICTION OVER THE INTERESTS OF COMMERCE ON
NAVIGABLE WATERS."  326 F.2D, AT 551.  ON THIS REASONING EITHER THE ACT
SHOULD, BUT DOES NOT, REQUIRE A LICENSE FOR A STEAM PLANT WHEN SITUATED
ON THE NAVIGABLE MAINSTREAM ITSELF, OR SHOULD NOT, BUT DOES, REQUIRE A
LICENSE FOR A HYDROELECTRIC PLANT, PUMPED STORAGE OR OTHERWISE,
SITUATED ON THE MAINSTREAM BUT WHICH HAS NO DEMONSTRABLE EFFECT, OR A
BENEFICIAL EFFECT, ON NAVIGABILITY.  THE ANSWER TO THIS CONUNDRUM IS
THAT UNLIKE PART II OF TITLE II OF THE PUBLIC UTILITY ACT OF 1935,
UNDER WHICH THE COMMISSION REGULATES VARIOUS ASPECTS OF THE SALE AND
TRANSMISSION OF ENERGY IN INTERSTATE COMMERCE, PART I, THE ORIGINAL
FEDERAL WATER POWER ACT, IS CONCERNED WITH THE UTILIZATION OF WATER
RESOURCES AND PARTICULARLY THE POWER POTENTIAL IN WATER.  IN RELATION
TO THIS CENTRAL CONCERN OF THE ACT, (FN29) THE DISTINCTION BETWEEN A
HYDROELECTRIC PROJECT AND A STEAM PLANT IS OBVIOUS, AND MEANINGFUL,
ALTHOUGH BOTH PRODUCE ENERGY FOR INTERSTATE TRANSMISSION.  (FN30)
REVERSED. 

FN1  49 STAT. 838, 846, 16 U.S.C. SEC. 817 (1958 ED.). 

FN2  THE FEDERAL POWER ACT WAS ORIGINALLY ENACTED IN 1920 AS THE
FEDERAL WATER POWER ACT, 41 STAT. 1063.  THE ORIGINAL ACT WAS AMENDED
BY THE TITLE II OF THE PUBLIC UTILITY ACT OF 1935, 49 STAT. 838, 16
U.S.C. SECS. 791-823 (1958 ED.), AND MADE PART I OF THE FEDERAL POWER
ACT.  PARTS II AND III, DEALING WITH REGULATION OF ELECTRIC UTILITY
COMPANIES, WERE ADDED.  TO DISTINGUISH THE ORIGINAL FEDERAL WATER POWER
ACT, WHICH WAS KEPT LARGELY INTACT, FROM PARTS II AND III, PART I WILL
BE REFERRED TO IN THIS OPINION UNDER ITS ORIGINAL TITLE. 

FN3  A PUMPED STORAGE FACILITY MAY BE LIKENED TO A LARGE STORAGE
BATTERY, TAKING ELECTRIC ENERGY FROM OTHER SOURCES, USUALLY STEAM
ELECTRIC PLANTS, DURING SOME HOURS OF THE DAY, AND SUPPLYING ENERGY TO
AN INTEGRATED SYSTEM DURING OTHER HOURS.  THE WATER IN THE UPPER POOL
MAY THUS BE REGARDED AS THE EQUIVALENT OF STORED ELECTRIC ENERGY. 
PUMPED STORAGE INSTALLATIONS FALL INTO TWO CATEGORIES, THOSE IN WHICH
PUMPED STORAGE FACILITIES ARE ADDED TO A CONVENTIONAL HYDRO
INSTALLATION, AND THOSE WHICH ARE EXCLUSIVELY PUMPED STORAGE,
GENERATING POWER SOLELY BY CIRCULATING WATER BETWEEN A LOWER AND HIGHER
RESERVOIR.  WITHIN THESE CATEGORIES PUMPED STORAGE INSTALLATIONS VARY
WIDELY IN DESIGN AND MODE OF OPERATION.  F.P.C., 1964 NATIONAL POWER
SURVEY, PART I, 120-124.  EXISTING COMBINED PUMPED STORAGE
HYDROELECTRIC PROJECTS INCLUDE ROCKY RIVER, CONN. (1929); BUCHANAN,
TEX. (1950); FLATIRON, COLO. (1954); HIWASSEE, N.C. (1956); AND
LEWISTON, N.Y. (1961).  THE PURE PUMPED STORAGE INSTALLATIONS ARE OF
MORE RECENT VINTAGE, WITH THE FOLLOWING PROJECTS PLANNED OR RECENTLY
CONSTRUCTED:  YARDS CREEK, N.J.; CABIN CREEK, COLO.; MUDDY RUN, PA.;
LUDINGTON, MICH.; CORNWALL, N.Y.; AND THE TAUM SAUK PROJECT.  SEE ID.,
AT 122-123. 

FN4  AT TAUM SAUK THE UPPER RESERVOIR IS A 32-ACRE POOL CONSTRUCTED
ATOP A MOUNTAIN, AT ABOUT 1,500 FEET ABOVE SEA LEVEL, AND THE LOWER
RESERVOIR, IMPOUNDED BY A 60-FOOT DAM, COVERS ABOUT 370 ACRES AND HAS A
USABLE STORAGE CAPACITY OF 4,350 ACRE-FEET OF WATER.  THE TWO ARE
CONNECTED BY A PRESSURE TUNNEL AND CONDUIT, WITH A PUMPING AND
GENERATING STATION ON AN OPEN CHANNEL RUNNING TO THE LOWER POOL. 

FN5  DURING NORMAL STREAM FLOWS AND NORMAL OPERATIONS OF THE PROJECT,
THERE WOULD BE NO INCREASE OR DECREASE OF THE NATURAL STAGE OR FLOW OF
WATERS BELOW THE DAM.  IN THE EVENT OF MALFUNCTION OR ABNORMAL FLOWS,
THE PROJECT MIGHT AFFECT THE LEVEL OF BOTH THE EAST FORK AND BLACK
RIVER. 

FN6  THE TRIAL EXAMINER FOUND THAT THE TAUM SAUK PROJECT WOULD AFFECT
THE NAVIGABLE CAPACITY OF THE BLACK RIVER.  ALTHOUGH THE COMMISSION
DIRECTED MOST OF ITS OPINION TO THE ISSUE OF WHETHER THE PROJECT
AFFECTED THE INTERESTS OF COMMERCE BECAUSE A SUBSTANTIAL PART OF ITS
POWER IS TRANSMITTED IN INTERSTATE COMMERCE, IT CONCURRED IN THE
EXAMINER'S FINDING THAT THE PROJECT MAY, UNDER CERTAIN CONDITIONS,
AFFECT THE NAVIGABILITY OF THE BLACK RIVER.  THE COURT OF APPEALS
REVERSED THE LATTER HOLDING ON THE GROUND THAT THE FINDING WAS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE QUESTION PRESENTED IN THE
PETITION FOR CERTIORARI WAS WHETHER THE GENERATION OF ENERGY FOR
INTERSTATE TRANSMISSION WAS A SUFFICIENT BASIS FOR REQUIRING A LICENSE,
ALTHOUGH THE COMMISSION RESERVED IN A FOOTNOTE THE RIGHT TO ARGUE THE
CORRECTNESS OF THE ALTERNATIVE HOLDING.  WE DO NOT DETERMINE WHETHER
THIS ISSUE IS PROPERLY HERE OR DECIDE WHETHER THERE IS SUBSTANTIAL
EVIDENCE TO SUPPORT A FINDING OF EFFECT ON NAVIGABILITY; OUR DISCUSSION
PROCEEDS ON THE ASSUMPTION THAT THE COURT OF APPEALS WAS CORRECT IN
DETERMINING THAT THERE WAS NOT.    FN7  UTAH POWER & LIGHT CO. V.
PFOST, 286 U.S. 165, CITED BY THE COURT OF APPEALS, IS NOT OPPOSED. 
THE COURT THERE HELD THAT A STATE HAD POWER TO IMPOSE A TAX ON A
COMPANY GENERATING ELECTRIC ENERGY FOR DISTRIBUTION IN INTERSTATE
COMMERCE.  THIS, OF COURSE, DOES NOT CONTROL THE COMMERCE POWERS OF
CONGRESS.  CF. EDISON CO. V. LABOR BOARD, 305 U.S. 197; POLISH ALLIANCE
V. LABOR BOARD, 322 U.S. 643, 649:  "FEDERAL REGULATION DOES NOT
PRECLUDE STATE TAXATION AND STATE TAXATION DOES NOT PRECLUDE FEDERAL
REGULATION."    FN8  SECTION 23(B) READS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON  ...  FOR THE PURPOSE OF
DEVELOPING ELECTRIC POWER, TO CONSTRUCT, OPERATE, OR MAINTAIN ANY DAM,
WATER CONDUIT, RESERVOIR, POWER HOUSE, OR OTHER WORKS INCIDENTAL
THERETO ACROSS, ALONG, OR IN ANY OF THE NAVIGABLE WATERS OF THE UNITED
STATES, OR UPON ANY PART OF THE PUBLIC LANDS OR RESERVATIONS OF THE
UNITED STATES (INCLUDING THE TERRITORIES), OR UTILIZE THE SURPLUS WATER
OR WATER POWER FROM ANY GOVERNMENT DAM, EXCEPT UNDER AND IN ACCORDANCE
WITH  ...  A LICENSE GRANTED PURSUANT TO THIS ACT.  ANY PERSON  ...
INTENDING TO CONSTRUCT A DAM OR OTHER PROJECT WORKS ACROSS, ALONG,
OVER, OR IN ANY STREAM OR PART THEREOF, OTHER THAN THOSE DEFINED HEREIN
AS NAVIGABLE WATERS, AND OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS
AUTHORITY TO REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE
SEVERAL STATES SHALL BEFORE SUCH CONSTRUCTION FILE DECLARATION OF SUCH
INTENTION WITH THE COMMISSION, WHEREUPON THE COMMISSION SHALL CAUSE
IMMEDATE INVESTIGATION OF SUCH PROPOSED CONSTRUCTION TO BE MADE, AND IF
UPON INVESTIGATION IT SHALL FIND THAT THE INTERESTS OF INTERSTATE OR
FOREIGN COMMERCE WOULD BE AFFECTED BY SUCH PROPOSED CONSTRUCTION, SUCH
PERSON  ...  SHALL NOT CONSTRUCT, MAINTAIN, OR OPERATE SUCH DAM OR
OTHER PROJECT WORKS UNTIL IT SHALL HAVE APPLIED FOR AND SHALL HAVE
RECEIVED A LICENSE UNDER THE PROVISIONS OF THIS ACT.  IF THE COMMISSION
SHALL NOT SO FIND, AND IF NO PUBLIC LANDS OR RESERVATIONS ARE AFFECTED,
PERMISSION IS HEREBY GRANTED TO CONSTRUCT SUCH DAM OR OTHER PROJECT
WORKS IN SUCH STREAM UPON COMPLIANCE WITH STATE LAWS." 

FN9  TO BE SURE THE REQUIREMENT THAT THE PROJECT BE ON A STREAM OVER
WHICH CONGRESS HAS JURISDICTION DELIMITS THE CASES IN WHICH THE
COMMISSION NEED INQUIRE INTO THE PROJECT'S EFFECT ON COMMERCE, LEAVING
THE THEORETICAL POSSIBILITY THAT SOME PROJECTS AFFECTING COMMERCE NEED
NOT BE LICENSED BECAUSE THEY ARE LOCATED ON WATERS BEYOND COGNIZANCE
UNDER THE COMMERCE CLAUSE.  BUT IT HAS NOT BEEN SHOWN THAT THIS
POSSIBILITY IS ANYTHING MORE THAN THEORETICAL.  TO THE EXTENT THERE ARE
SUCH PROJECTS, THERE IS NOTHING INCONSISTENT BETWEEN A NARROW EXEMPTION
FOR PROJECTS LOCATED ON INTRASTATE NONNAVIGABLE WATERS WHICH DO NOT
FLOW INTO ANY NAVIGABLE STREAMS AND AN INTENT TO REACH ALL PROJECTS
AFFECTING COMMERCE GENERALLY WHEN LOCATED ON THE MORE TYPICAL STREAM. 

FN10  RESPONDENT ALSO UNDERSCORES THE STATUTORY DIRECTIVE REQUIRING
DETERMINATION OF WHETHER THE "PROPOSED CONSTRUCTION" OF THE DAM OR
PROJECT WORKS WOULD AFFECT COMMERCE AND URGES THAT THE USE OF THIS TERM
INDICATES THE PROVISION REFERS TO EFFECT ON NAVIGATION.  WHETHER
INQUIRY BE LIMITED TO SUCH EFFECTS OR EXTEND TO MATTERS AFFECTING THE
INTERESTS OF COMMERCE GENERALLY, AND INTELLIGIBLE DETERMINATION
PERFORCE ENTAILS CONSIDERATION OF THE NATURE OF THE PROJECT, ITS
INTENDED USE AND ITS MODE OF OPERATION AND NOT ONLY THAT OF THE
PHYSICAL CONSTRUCTION.  FURTHER, THE STATUTE PROVIDES THAT UPON FINDING
THAT THE PROJECT WILL HAVE EFFECT ON COMMERCE, THE DECLARANT "SHALL NOT
CONSTRUCT, MAINTAIN, OR OPERATE SUCH DAM OR OTHER PROJECT WORKS"
WITHOUT A LICENSE. 

FN11  H.R. REP. NO. 61, 66TH CONG., 1ST SESS.; 58 CONG. REC. 1932,
1936-1940; 59 CONG.  REC. 241, 1039-1042, 1173-1174.  SEE ALSO 42 CONG.
REC. 6968; S. DOC. NO. 325, 60TH CONG., 1ST SESS., 25. 

THE MOVEMENT TOWARD THE ENACTMENT OF THE ACT IN 1920 MAY BE SAID TO
HAVE TAKEN ITS KEYNOTE FROM PRESIDENT ROOSEVELT'S VETO OF A BILL WHICH
WOULD HAVE TURNED OVER TO PRIVATE INTERESTS IMPORTANT POWER SITES ON
THE RAINY RIVER.  HE SAID: 

"WE ARE NOW AT THE BEGINNING OF GREAT DEVELOPMENT IN WATERPOWER.  ITS
USE THROUGH ELECTRICAL TRANSMISSION IS ENTERING MORE AND MORE LARGELY
INTO EVERY ELEMENT OF THE DAILY LIFE OF THE PEOPLE.  ALREADY THE EVILS
OF MONOPOLY ARE BECOMING MANIFEST; ALREADY THE EXPERIENCE OF THE PAST
SHOWS THE NECESSITY OF CAUTION IN MAKING UNRESTRICTED GRANTS OF THIS
GREAT POWER. 

*         *         *         *         * 

"IT SHOULD ALSO BE THE DUTY OF SOME DESIGNATED OFFICIAL TO SEE TO IT
THAT IN APPROVING THE PLANS THE MAXIMUM DEVELOPMENT OF THE NAVIGATION
AND POWER IS ASSURED, OR AT LEAST THAT IN MAKING THE PLANS THESE MAY
NOT BE SO DEVELOPED AS ULTIMATELY TO INTERFERE WITH THE BETTER
UTILIZATION OF THE WATER OR COMPLETE DEVELOPMENT OF THE POWER."  42
CONG. REC. 4698. 

THE HISTORY OF THE MOVEMENT AND ITS OBJECTIVES ARE WELL RECOUNTED IN
KERWIN, FEDERAL WATER-POWER LEGISLATION 105-293 (HEREAFTER KERWIN);
PINCHOT, THE LONG STRUGGLE FOR EFFECTIVE FEDERAL WATER POWER
LEGISLATION, 14 GEO. WASH. L. REV. 9 (1945). 

FN12  26 STAT. 453, 454; 30 STAT. 1121, 1151; 33 U.S.C. SECS. 401,
403 (1958 ED.). 

FN13  "THE INCREASING NEED OF POWER, RESULTING THROUGH OUR
PARTICIPATION IN THE WAR AND GROWING SHORTAGE IN CERTAIN SECTIONS OF
OUR COAL AND OIL SUPPLY, COMPELLED ATTENTION TO THE URGENCY OF
IMMEDIATE AND COMPREHENSIVE WATER-POWER LEGISLATION  ...  .  THE NEED
FOR LEGISLATION FOR THE DEVELOPMENT OF HYDROELECTRIC POWER AT THE
PRESENT TIME IS CLEARLY SET FORTH BY SECRETARY HOUSTON IN A RECENT
REPORT."  H.R. REP. NO. 61, 66TH CONG., 1ST SESS., 4. 

"IF 10 YEARS AGO, INSTEAD OF ENACTING RESTRICTIVE LAWS WHICH HAVE
PROHIBITED DEVELOPMENT OF OUR WATER POWERS, CONGRESS HAD INVITED THEIR
DEVELOPMENT THROUGH FAIR AND REASONABLE TERMS, THE BEGINNING OF THE
WORLD WAR WOULD HAVE FOUND THE UNITED STATES WITH 20,000,000 DEVELOPED
HYDROELECTRIC POWER INSTEAD OF 5,000,000  ...  . 

     *         *         *         *         * 

"THE NECESSITY FOR THE DEVELOPMENT OF OUR WATER POWER IS OF PARAMOUNT
IMPORTANCE TO THE PEOPLE OF THE UNITED STATES, AND CONGRESS SHOULD
ENACT A LAW WITHOUT FURTHER DELAY  ...  ."  59 CONG. REC. 241, 244
(REMARKS OF SENATOR JONES IN INTRODUCING THE BILL). 

SEE ALSO 59 CONG. REC. 1222-1224, 1039, 1042, 1048; S. REP. NO. 180,
66TH CONG., 1ST SESS. 

FN14  49 STAT. 842, 16 U.S.C. SEC. 803(A) (1958 ED.). 

FN15  THESE CONDITIONS REQUIRE THAT THE PROJECT SHALL BE MAINTAINED
IN GOOD REPAIR AND OPERATED IN THE INTERESTS OF NAVIGATION,
AMORTIZATION RESERVES SHALL BE MAINTAINED AFTER THE TWENTIETH YEAR OF
OPERATION OUT OF ANY EXCESS RETURN ON NET INVESTMENT, ANNUAL CHARGES
SHALL BE PAID TO THE UNITED STATES, EXCESSIVE PROFITS, UNREGULATED BY
STATE AUTHORITY, SHALL BE EXPROPRIATED TO THE UNITED STATES, SEC. 10,
49 STAT. 842, 16 U.S.C. SECS. 803(B), (C), (D), (E) (1958 ED.), AND
RATES AND SERVICES FOR ENERGY, ABSENT STATE REGULATION, SHALL BE
REASONABLE AND ADEQUATE, SEC. 19, 41 STAT. 1073, 16 U.S.C. SEC. 812
(1958 ED.).  UNDER SEC.  14, 49 STAT. 844, 16 U.S.C. SEC. 807 (1958
ED.), THE UNITED STATES MAY RECAPTURE ANY PROJECT AFTER EXPIRATION OF
THE LICENSE, UPON PAYMENT OF THE NET INVESTMENT IN THE PROPERTY. 

FN16  SEC. 3(8), 49 STAT. 838, 16 U.S.C. SEC. 796(8) (1958 ED.). 

FN17  SEC. 4(E), 49 STAT. 840, 16 U.S.C. SEC. 797(E) (1958 ED.). 

FN18  SEC. 3(8), 49 STAT. 838, 16 U.S.C. SEC. 796(8) (1958 ED.). 

EARLIER VERSIONS OF THE ACT WOULD HAVE DEFINED "NAVIGABLE WATERS" TO
INCLUDE ONLY SUCH STREAMS OR PARTS THEREOF WHICH IN THEIR ORDINARY
NATURAL CONDITION ARE USED FOR THE TRANSPORTATION OF PERSONS AND
PROPERTY IN INTERSTATE COMMERCE OR WHICH THROUGH IMPROVEMENTS SHALL
BECOME USUABLE IN SUCH COMMERCE.  S. 1419, 65TH CONG., 1ST SESS.; H.R.
3184, 66TH CONG., 1ST SESS.  THE CONSERVATIONISTS NOTED THAT THIS
DEFINITION EXCLUDED FALLS, SHALLOWS AND RAPIDS, THOUGHT TO BE RATHER
VALUABLE SITES FOR HYDROELECTRIC PROJECTS.  57 CONG. REC. 4638.  A
FILIBUSTER IN THE CLOSING HOURS OF THE SESSION IN 1919 PREVENTED
ENACTMENT OF S. 1419, KERWIN 253-254, AND THE DEFINITION OF NAVIGATION
IN H.R. 3184 WAS AMENDED BY THE SENATE COMMERCE COMMITTEE TO INCLUDE
INTERRUPTING FALLS AND SHALLOWS AND RAPIDS AS WELL AS STREAMS CITED FOR
IMPROVEMENT.  S. REP. NO. 180, 66TH CONG., 1ST SESS. 

FN19  SEE, E.G., 59 CONG. REC. 1041-1042, 1430-1432, 1472, 6529-6531,
6536, 7723-7729. 

THESE OBJECTIONS MAY BE FOUND IN THE DEBATES ON THE EARLIER VERSIONS
OF WATER POWER LEGISLATION, NOTWITHSTANDING THAT "NAVIGABLE WATERS" IN
THESE BILLS WAS MORE NARROWLY DEFINED AND PERMISSION TO CONSTRUCT A
PROJECT ON A NONNAVIGABLE STREAM WAS GRANTED.  EARLIER BILLS INCLUDE S.
1419, 65TH CONG., 1ST SESS.; H.R. 3184, 66TH CONG., 1ST SESS.  SEE 56
CONG.  REC. 8917, 9038; 57 CONG. REC. 4638; 58 CONG. REC. 2032. 

FN20  THE FOLLOWING ARE REPRESENTATIVE: 

"STRIPPED OF ITS COVERING, THE PROPOSAL RELATES NOT TO COMMERCE
BETWEEN THE STATES OR WITH FOREIGN NATIONS, BUT IT AUTHORIZES A
COMMISSION TO ISSUE LICENSES TO CORPORATIONS AND TO INDIVIDUALS TO
BUILD DAMS AND TO ERECT POWER HOUSES FOR THE GENERATION OF ELECTRICITY
FOR INDUSTRIAL PURPOSES.  AND IN THIS PURPOSE MAY BE FOUND THE
EXPLANATION OF THE STRAINED EFFORT TO ENLARGE THE DEFINITION OF
'NAVIGABLE WATERS' BEYOND ITS PROPER LIMITS.  THE PROPONENTS OF THIS
LEGISLATION ARE NOT CONCERNED WITH NAVIGATION AND SO WITH NAVIGABLE
WATERS IN FACT.  THEIRS IS A SCHEME OF POWER DEVELOPMENT FOR THE
DEMANDS AND THE PROFITS OF INDUSTRY UNDER FEDERAL CONTROL.  THEY
RECOGNIZE THE IMPRACTICABILITY OF SUCH DEVELOPMENTS UPON STREAMS
NAVIGABLE IN FACT AND IN LAW, EXCEPT UNDER UNUSUAL AND EXCEPTIONAL
CONDITIONS  ...  .  LIMIT THIS DEFINITION OF 'NAVIGABLE WATERS' AS WE
MAY AND THE BILL EVEN THEN WILL GO TO THE VERY VERGE OF CONSTITUTIONAL
INHIBITION.  I KNOW OF NO AUTHORITY IN OUR FUNDAMENTAL LAW FOR THE
LICENSING BY CONGRESS OF CORPORATIONS AND INDIVIDUALS FOR THE BUILDING
OF DAMS, THE ERECTION OF POWER HOUSES, AND THE GENERATION OF
ELECTRICITY FOR INDUSTRIAL AND COMMERCIAL PURPOSES.  THERE ARE THOSE
WHO PROFESS TO BELIEVE THAT THIS MAY BE DONE UPON NAVIGABLE STREAMS AS
AN INCIDENT TO THE IMPROVEMENT OF NAVIGATION.  WHETHER THIS VIEW BE
SOUND OR NOT, IT IS CLEAR IN MY MIND THAT SUCH POWERS CAN NOT BE
EXERCISED BY THE FEDERAL GOVERNMENT WITHIN THE LIMITS OF OUR STATES
UPON STREAMS WHICH ARE NOT NAVIGABLE AND OVER WHICH CONGRESS HAS NO
JURISDICTION  ...  ."  59 CONG. REC. 6531 (REMARKS OF REPRESENTATIVE
WHITE). 

"AS A MATTER OF LAW, ASIDE FROM PURPOSES OF NAVIGATION, THE USE OF
THE WATER IN THE DIFFERENT STREAMS OF THE SEVERAL STATES BELONGS TO THE
PEOPLE OF THOSE STATES AND NOT TO THE FEDERAL GOVERNMENT.  THE ARGUMENT
INSISTED UPON AMOUNTS TO THIS:  THAT FEDERAL GOVERNMENT IS TO SELL AND
TO MAKE A CHARGE FOR WATER THAT DOES NOT BELONG TO IT, BUT WHICH
BELONGS TO THE PEOPLE OF THE STATES."  59 CONG. REC. 1430 (REMARKS OF
SENATOR NELSON). 

"MR. KING.  OBVIOUSLY, THEN, UNDER THE SENATOR'S CONTENTION, THE
FEDERAL GOVERNMENT WOULD HAVE JURISDICTION OVER THE SNOW LINE, AND, AS
THE SENATOR FROM COLORADO (MR. THOMAS) SOTTO VOCE SAYS, IT WOULD HAVE
JURISDICTION OF THE CLOUDS WHICH PRODUCE THE SNOW WHICH MELTS AND
PRODUCES THE SPRING WHICH PRODUCES THE TRIBUTARY FLOWING INTO THE RIVER
WHICH IS NAVIGABLE.  SO THAT THE FEDERAL GOVERNMENT MAY STRETCH OUT ITS
POWERFUL AND OMNIPOTENT HAND UNTIL IT CAN GRASP THE SNOW IN THE
MOUNTAINS AND SAY, "WE HAVE JURISDICTION OVER THAT." 

"MR. NELSON.  THAT IS A FORCED CONSTRUCTION. 

"MR. KING.  I THINK THAT THE SENATOR'S POSITION LEADS TO THAT. 

"MR. NELSON.  IT DOES NOT LEAD TO THAT, AND THAT IS NOT MY POSITION. 
THE SENATOR A FEW MOMENTS AGO REFERRED TO THE RIO GRANDE CASE.  THE
COURT INTIMATED INCIDENTALLY IN THAT OPINION THAT THE CONTROL OF
CONGRESS EXTENDED TO THE FEEDERS OF THE STREAM, BUT WHEN IT COMES TO
APPLYING THE PRINCIPLES OF LAW TO THE FACTS IN EACH CASE THEY MUST BE
MEASURED BY THE FACTS.  THE COURT DID NOT MEAN TO DECIDE THAT THE
FEEDERS WERE NAVIGABLE.  WHAT THE COURT MEANT TO SAY WAS THAT THE
FEDERAL GOVERNMENT HAS SUFFICIENT JURISDICTION OVER THE FEEDERS TO SEE
TO IT THAT THE SUPPLY OF WATER SHALL NOT BE DESTROYED OR SO DIMINISHED
IN THE FEEDERS AS TO PREVENT THE MAIN STREAM FROM BEING NAVIGABLE ...
. 

"  ...  DOES THE DIVERSION OF THE WATER OF A CERTAIN FEEDER OF A
CERTAIN STREAM FOR IRRIGATION PURPOSES DIMINISH THE QUANTITY OF THE
WATER TO SUCH AN EXTENT AS TO DESTROY THE NAVIGABILITY OF THE MAIN
STREAM?  IF THE DIVERSION OF THE WATER DID NOT DIMINISH THE
NAVIGABILITY OF THE MAIN STREAM, THE GOVERNMENT WOULD HAVE NO CONTROL
WHATEVER.  FURTHERMORE, IT WOULD ONLY HAVE CONTROL TO THE EXTENT OF THE
SUPPLY OF WATER NEEDED TO SUBSERVE THE PURPOSES OF REAL NAVIGATION. 

"WE ARE NOT SEEKING TO INTERFERE WITH THE PRESENT SITUATION, AND NO
MATTER WHAT WE PUT INTO THIS BILL, IF THE SENATOR FROM MAINE WILL
EXCUSE ME A MOMENT LONGER, WE CAN NOT CHANGE THE DECISIONS OF THE
SUPREME COURT AS TO THEIR DETERMINATION OF THE WORDS 'NAVIGABLE
STREAM.'  WE COULD NOT UNDO BY THIS LEGISLATION, IF WE SHOULD MAKE THE
EFFORT, WHAT THEY HAVE DECIDED.  WE HAVE MADE NO SUCH ATTEMPT."  59
CONG. REC. 7730. 

SEE ALSO 59 CONG. REC. 1041-1042, 1472, 7723-7730.  CF. 57 CONG. REC.
4636-4638, 56 CONG.  REC. 9038. 

FN21  ESPECIALLY AN ISSUE THAT WAS LARGELY THEORETICAL AT THE TIME. 
PRIOR TO THE USE OF THE PUMPED STORAGE TECHNIQUE, HYDROELECTRIC
PROJECTS SUFFICIENTLY LARGE TO SERVE INTERSTATE MARKETS WERE ON THE
INTERRUPTING FALLS, SHALLOWS, AND RAPIDS OF THE NAVIGABLE MAINSTREAM OR
UTILIZED ENOUGH WATER TO AFFECT THE FLOW OR LEVEL OF NAVIGABLE
PORTIONS.    FN22  INDEED, CONGRESS NOT ONLY INVOKED ITS POWERS OVER
COMMERCE IN SEC. 23(B) BUT ALSO DREW UPON ITS POWERS OVER PUBLIC LANDS
AND RESERVATIONS.  ONLY IF THERE IS NO EFFECT ON COMMERCE AND "IF NO
PUBLIC LANDS OR RESERVATIONS ARE AFFECTED" IS PERMISSION GRANTED TO
CONSTRUCT WITHOUT A LICENSE. 

FN23  H.R. 3184, 66TH CONG., 1ST SESS.  SEE ALSO S. 1419, 65TH CONG.,
1ST SESS. 

FN24  S. REP. NO. 180, 66TH CONG., 1ST SESS., 19. 

FN25  IBID., H.R. REP. NO. 910, 66TH CONG., 2D SESS.  THE HOUSE
MANAGERS DID STATE IN A SEPARATE STATEMENT IN REGARD TO THE SENATE
AMENDMENT: 

"THIS AMENDMENT SEEKS TO PRESCRIBE HOW A STREAM OF DOUBTFUL
NAVIGABILITY MAY BE DETERMINED AS WITHIN THE PROVISIONS OF THE LAW, AND
IN SUBSTANCE IT PROVIDES THAT THE COMMISSION SHALL ASCERTAIN WHETHER
THE INTERESTS OF COMMERCE ARE AFFECTED; IF NOT, THEN PERMISSION IS
GRANTED TO CONSTRUCT IN ACCORDANCE WITH THE STATE LAWS."  ID., AT 13. 

BUT WHATEVER THE SCOPE OF SEC. 23(B), THE PROVISION WAS MEANT TO DO
MORE THAN AFFORD A METHOD FOR OBTAINING A DETERMINATION OF THE
NAVIGABILITY OF THE STREAM ON WHICH THE PROJECT WAS TO BE LOCATED.  IT
APPLIES ONLY IF THE STREAM IS A NONNAVIGABLE STREAM OVER WHICH CONGRESS
HAS JURISDICTION AND THE COMMISSION IS TO DETERMINE THE EFFECT OF THE
PROJECT ON COMMERCE, NOT THE NATURE OF THE STREAM. 

FN26  SEE, E.G., 58 CONG. REC. 1935; 59 CONG. REC. 241-244, 1173
1174, 1472, 6529-6531, 7723-7729. 

FN27  SEE HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE ON H.R.  5423, 74TH CONG., 1ST SESS., AT 383-391, 471
490; S. REP. NO. 621, 74TH CONG., 1ST SESS., 46-47; H.R. REP. NO. 1318,
74TH CONG., 1ST SESS., 25-26. 

FN28  THE AMENDMENT WAS PROPOSED BY SENATOR PITTMAN AND ADOPTED BY
THE SENATE WITHOUT DISCUSSION.  79 CONG. REC. 9053.  IT WAS DELETED BY
THE HOUSE COMMITTEE, ALSO WITHOUT EXPLANATION.  H.R. REP. NO. 1318,
74TH CONG., 1ST SESS., 42.  THE SENATE AGREED.  79 CONG.  REC. 14473. 

FN29  RESPONDENT NOTES THAT IF THE USE OF WATER RESOURCES IS AT THE
HEART OF THE MATTER, THEN IT CANNOT BE EXPLAINED WHY THE ACT
DIFFERENTIATES BETWEEN TWO PRECISELY SIMILAR HYDROELECTRIC PLANTS ON A
NONNAVIGABLE STREAM SUBJECT TO FEDERAL JURISDICTION SOLELY BECAUSE ONE
TRANSMITS ENERGY IN INTERSTATE COMMERCE AND THE OTHER GENERATES FOR
LOCAL USE.  WE FAIL TO PERCEIVE THE DIFFICULTY.  THE PROJECT LOCATED ON
A NONNAVIGABLE STREAM, WITHOUT ANY EFFECT ON NAVIGABILITY AND WATER
COMMERCE AND WITHOUT ANY INTERSTATE SALES, MAY WELL HAVE NO EFFECT ON
COMMERCE AMONG THE STATES AND THUS BE BEYOND THE POWER OF CONGRESS
UNDER THE COMMERCE CLAUSE. 

FN30  THE COURT OF APPEALS NOTED THAT THE COMMISSION'S NOVEL
CONSTRUCTION "REPRESENTS A DECIDED DEPARTURE FROM ITS ADMINISTRATIVE
CONSTRUCTION OF THE STATUTE" AND "ONE NOT BASED UPON GENERALLY
ACKNOWLEDGED LIMITS OF JURISDICTION ADHERED TO THROUGHOUT THE YEARS." 
326 F.2D, AT 552.  CONGRESS MUST BE DEEMED TO HAVE ACCEPTED THIS
CONSISTENTLY HELD ADMINISTRATIVE VIEW. 

IT IS TRUE THAT THE FPC HAS NOT PREVIOUSLY REQUIRED A LICENSE FOR
HYDROELECTRIC PROJECTS GENERATING FOR INTERSTATE MARKETS, BUT HAVING NO
EFFECT ON NAVIGABILITY, BUT THE EXISTENCE OF SUCH PROJECTS IN ANY
NUMBER MAY BE DOUBTED.  THE CONSTRUCTION OF PURE PUMPED STORAGE
INSTALLATIONS ON SMALL STREAMS IS A RELATIVELY RECENT DEVELOPMENT. 
THUS PURE PUMPED STORAGE PROJECTS WERE NOT OF SIGNIFICANCE TO THE
FEDERAL INTEREST IN THE HYDROELECTRIC PLANTS IN THE EARLY DAYS OF THE
ACT. 

FURTHER, THE FPC'S VIEW HERE IS NOT NOVEL.  A COURT OF APPEALS
EXPRESSLY DEALT WITH AND REJECTED THIS CONSTRUCTION OF THE ACT IN 1939,
UNITED STATES V. APPALACHIAN POWER CO., 107 F.2D 769, 793 (C.A. 4TH
CIR.).  THERE THE COURT OF APPEALS HELD, IN A DECISION RELIED ON BY THE
COURT BELOW, THAT THE COMMISSION'S CONSTRUCTION WAS UNTENABLE "EITHER
ON THE BASIS OF STATUTORY CONSTRUCTION OR CONSTITUTIONAL AUTHORITY,"
RESTING THIS CONCLUSION IN PART ON A VERY NARROW VIEW OF CONGRESS'
AUTHORITY UNDER THE COMMERCE CLAUSE OVER HYDROELECTRIC PROJECTS,
WHETHER ON NAVIGABLE OR NONNAVIGABLE WATERS.  THIS COURT, ALTHOUGH
FINDING THE STREAM IN QUESTION NAVIGABLE, REJECTED THIS UNDERPINNING OF
THE COURT OF APPEALS' DECISION AND MADE QUITE EXPLICIT THE BROAD NATURE
OF THE FEDERAL INTEREST IN HYDROELECTRIC PROJECTS.  THE COURT ALSO
EXPRESSLY PUT ASIDE THE ISSUES POSED BY THE INTENDED INTERSTATE SALES. 
311 U.S. 377.  THUS THE ISSUE HEREIN PRESENTED CAN FAIRLY BE SAID TO
HAVE BEEN UNSETTLED AND UNRESOLVED SINCE THAT DECISION, AS EVIDENCED BY
AN EXAMINER'S RULING IN 1954 THAT A PROJECT REQUIRED A LICENSE BECAUSE
IT WOULD GENERATE ENERGY FOR INTERSTATE TRANSMISSION.  THE COMMISSION
FOLLOWED THE EARLIER COURT OF APPEALS' DECISION AND REJECTED THIS
RULING IN A CURSORY DICTUM, THE PROJECT REQUIRING A LICENSE ON THE MORE
TRADITIONAL GROUND OF EFFECT ON NAVIGABILITY.  CALIFORNIA OREGON POWER
CO., 13 F.P.C. 1, 3. 

THE FPC ITSELF HAS REGARDED THE QUESTION AS AN OPEN ONE, STATING, IN
REACHING THE ISSUE IN THIS CASE, THAT "AN ISSUE OF SUCH IMPORTANCE MUST
NOT BE ALLOWED TO GO UNRESOLVED ANY LONGER SINCE THERE CAN BE LITTLE
DOUBT THAT THIS COUNTRY IN THE YEARS AHEAD WILL BECOME OVERWHELMINGLY
MORE DEPENDENT UPON THE MAXIMUM DEVELOPMENT OF ITS WATER RESOURCES IN
ALL THEIR USES."  27 F.P.C. 801, 806-807. 

WE DO NOT FIND IN THESE CIRCUMSTANCES A GENERALLY ACKNOWLEDGED
JURISDICTIONAL LIMITATION OR A CONSISTENTLY HELD ADMINISTRATIVE
INTERPRETATION.  SEE AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 344
U.S. 298. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

I AGREE WITH THE COURT THAT THERE "IS NO QUESTION THAT THE INTERSTATE
TRANSMISSION OF ELECTRIC ENERGY IS FULLY SUBJECT TO THE COMMERCE POWERS
OF CONGRESS," AND THAT PROJECTS GENERATING ENERGY FOR SUCH
TRANSMISSION, WHETHER THEY USE WATER OR STEAM, "ARE WITHIN THE PURVIEW
OF THE COMMERCE POWER, QUITE WITHOUT REGARD TO THE FEDERAL CONTROL OF
TRIBUTARY STREAMS AND NAVIGATION."  ANTE, AT 94.  THE BASIC QUESTION
HERE PRESENTED, HOWEVER, IS ONE OF STATUTORY INTERPRETATION:  WHETHER
CONGRESS EXERCISED FULLY ITS COMMERCE POWER, REQUIRING LICENSES OF
THOSE WHOSE PROJECTS, BUILT ON NONNAVIGABLE STREAMS, AFFECT INTERSTATE
OR FOREIGN COMMERCE IN ANY WAY, OR WHETHER CONGRESS WISHED TO REQUIRE
LICENSES ONLY OF THOSE WHOSE PROJECTS AFFECT INTERSTATE OR FOREIGN
COMMERCE ON NAVIGABLE WATERS.  FROM THE TIME THE PROVISION IN QUESTION
WAS ENACTED IN 1920 UNTIL 1962 THE FEDERAL POWER COMMISSION BELIEVED
THE LATTER INTERPRETATION TO BE CORRECT AND DID NOT ATTEMPT TO REQUIRE
A LICENSE UNLESS COMMERCE ON NAVIGABLE WATERS WAS AFFECTED.  IN 1962,
HOWEVER, THE COMMISSION "RULED FOR THE FIRST TIME THAT A HYDROELECTRIC
PROJECT TO BE CONSTRUCTED IN AND TO UTILIZE NONNAVIGABLE WATERS FOR THE
PURPOSE OF DEVELOPING POWER FOR INTERSTATE USE  ...  CANNOT BE
CONSTRUCTED WITHOUT AN FPC LICENSE  ...  BECAUSE IT WOULD AFFECT THE
INTERESTS OF INTERSTATE COMMERCE SINCE THE POWER WOULD BE USED TO
SUPPLY MARKETS IN OTHER STATES."  "NEW REGULATORY POLICIES," FORTY
SECOND ANNUAL REPORT OF THE FEDERAL POWER COMMISSION 23 (1962).  (FN1)
I BELIEVE THAT THE COMMISSION'S EARLIER INTERPRETATION, CONSISTENTLY
FOLLOWED FOR MANY YEARS, CORRECTLY REFLECTED CONGRESSIONAL INTENT. 

THE COURT'S CONCLUSION, SUPPORTING THE COMMISSION'S NEW THEORY THAT A
LICENSE IS REQUIRED IF A PROJECT AFFECTS THE INTERSTS OF INTERSTATE OR
FOREIGN COMMERCE IN ANY WAY SEEMS TO BE BASED UPON AN OVERLY LITERAL
READING OF THE STATUTE.  THE STATUTE PROVIDES THAT A LICENSE IS
REQUIRED IF THE COMMISSION FINDS THAT "THE INTERESTS OF INTERSTATE OR
FOREIGN COMMERCE WOULD BE AFFECTED BY SUCH PROPOSED CONSTRUCTION." 
WITH ALL DEFERENCE, I DO NOT BELIEVE THAT THE INTERPRETATION OF THE
COURT AND THE COMMISSION THAT THIS LANGUAGE ESTABLISHES THAT CONGRESS
INTENDED TO EXERCISE THE FULL REACH OF ITS COMMERCE POWER CAN BE
MAINTAINED, FOR THE LEGISLATIVE HISTORY OF THIS PROVISION CLEARLY
REVEALS THAT THE "INTERESTS OF  ... COMMERCE" TO WHICH CONGRESS REFERS
ARE THE INTERESTS OF COMMERCE ON NAVIGABLE WATERS.  STATEMENTS BY
CONGRESSIONAL PROPONENTS OF THE FEDERAL WATER POWER ACT AND OTHERS,
WHEN THE ACT WAS FIRST ENACTED IN 1920, MAKE CLEAR AN INTENT THAT
LICENSING BE REQUIRED ONLY WHEN INTERESTS OF COMMERCE ON NAVIGABLE
WATERS ARE AFFECTED.  (FN2)  MOREOVER, AFTER A CONSIDERABLE PERIOD
DURING WHICH THE COMMISSION CONSISTENTLY INTERPRETED THE LICENSING
PROVISION IN ACCORDANCE WITH THE CONGRESSIONAL INTENT, THE STATUTE WAS
RE-ENACTED IN 1935.  AT THAT TIME STATEMENTS OF THE DRAFTERS OF THE ACT
(FN3) AND THE SENATE AND HOUSE REPORTS ON THE ACT (FN4) AGAIN CLEARLY
INDICATED AN INTENT TO HAVE THE LICENSING REQUIREMENT APPLY ONLY WHEN A
PROJECT AFFECTS INTERESTS OF COMMERCE ON NAVIGABLE WATERS. 

IT MAY WELL BE, AS THE COURT INTIMATES, THAT SOME OF THE ACT'S
PROPONENTS BELIEVED THAT CONGRESS CONSTITUTIONALLY COULD REQUIRE
LICENSING ONLY WHERE NAVIGABLE WATERS ARE AFFECTED.  (FN5)  IF THE
LEGISLATIVE HISTORY SHOWED AN INTENT TO EXERCISE THE COMMERCE POWER TO
ITS FULL EXTENT, NOTWITHSTANDING DOUBTS AS TO THE REACH OF THIS POWER,
I WOULD ACCEPT THE READING OF THE STATUTE GIVEN BY THE COURT.  HOWEVER,
THE HISTORY, IN MY VIEW, REVEALS AN EXPRESS CONGRESSIONAL INTENT TO
LIMIT THE APPLICATION OF THE LICENSING PROVISION TO NAVIGABLE WATERS
IRRESPECTIVE OF THE SCOPE OF THE COMMERCE POWER.  THERE IS NO
INDICATION THAT ANYONE ENVISAGED OR DESIRED THE APPLICATION OF THE
LICENSING PROVISION TO THE TYPE OF PROJECT HERE INVOLVED WHICH AFFECTS
INTERSTATE COMMERCE ONLY BECAUSE THE ELECTRICITY PRODUCED CROSSES STATE
LINES. 

MOREOVER, TO INTERPRET THE PROVISION AS THE COURT DOES TODAY PRODUCES
A SUBSTANTIAL ANOMALY, FOR STEAM GENERATING PLANTS THAT AFFECT
INTERSTATE COMMERCE IN A MANNER IDENTICAL TO THAT OF HYDROELECTRIC
PLANTS SUCH AS THE ONE INVOLVED HERE WOULD NOT BE REQUIRED TO OBTAIN A
LICENSE FROM THE COMMISSION, YET HYDROELECTRIC PLANTS WOULD HAVE TO
OBTAIN ONE.  THE COURT ATTEMPTS TO EXPLAIN AWAY THIS ANOMALY, BY
STATING THAT IN VIEW OF THE ORIGINAL FEDERAL WATER POWER ACT'S CONCERN
WITH "THE POWER POTENTIAL IN WATER," "THE DISTINCTION BETWEEN A
HYDROELECTRIC PROJECT AND A STEAM PLANT IS OBVIOUS, AND MEANINGFUL,
ALTHOUGH BOTH PRODUCE ENERGY FOR INTERSTATE TRANSMISSION."  ANTE, AT
110.   HOWEVER, EVEN IN TERMS OF THE "POWER POTENTIAL IN WATER," I FAIL
TO FIND A RELEVANT DISTINCTION BETWEEN A PLANT WHICH ARTIFICALLY PUMPS
WATER TO AN ELEVATED RESERVOIR IN OFF-PEAK PERIODS ALLOWING IT TO FALL
AND GENERATE ELECTRICITY AT PEAK PERIODS AND A PLANT WHICH HEATS WATER
TO CREATE STEAM WHICH GENERATES ELECTRICITY.  I SEE NO PURPOSE OF THE
ACT THAT JUSTIFIES PRODUCING THIS ANOMALY IN THE REGULATORY SCHEME. 
UNDER MY VIEW, OF COURSE, WHEN INTERSTATE OR FOREIGN COMMERCE IS
AFFECTED, CONGRESS CAN CONSTITUTIONALLY REQUIRE LICENSES OF BOTH STEAM
AND HYDROELECTRIC PROJECTS, OF EITHER STEAM OR HYDROELECTRIC PROJECTS,
OR OF NEITHER.  THE LEGISLATIVE HISTORY HERE, HOWEVER, ESTABLISHES TO
MY SATISFACTION THAT IT HAS REQUIRED LICENSES OF NEITHER STEAM PLANTS
NOR THE TYPE OF HYDROELECTRIC PLANT HERE INVOLVED, AND IN LIGHT OF THIS
LEGISLATIVE HISTORY I AGREE WITH THE COURT OF APPEALS THAT CONGRESS
INTENDED THAT A LICENSE BE REQUIRED ONLY WHERE THE INTERESTS OF
COMMERCE ON NAVIGABLE WATERS ARE AFFECTED.  (FN6) 

FN1  MOREOVER, IN 1936 CONGRESS RE-ENACTED THE RELEVANT STATUTORY
PROVISIONS.  THE LONG-STANDING ADMINISTRATIVE INTERPRETATION OF THE
LICENSING PROVISION BOTH BEFORE AND AFTER ITS RE-ENACTMENT IS AN
IMPORTANT FACTOR IN CONSTRUING THE STATUTE.  SEE, E.G., HELVERING V.
REYNOLDS, 313 U.S. 428, 432; COMMISSIONER V. NOEL, 380 U.S. 678; 1
DAVIS, ADMINISTRATIVE LAW SEC. 5.07 (1958). 

FN2  SEE APPENDIX A. SEE ALSO 56 CONG. REC. 8917, 9038; 57 CONG. REC.
4638-4639; 59 CONG. REC. 6529-6531, 7723, 7725, 7730. 

FN3  SEE APPENDIX B. 

FN4  BOTH THE SENATE AND HOUSE REPORTS ON THE 1935 AMENDMENTS TO THE
FEDERAL WATER POWER ACT MAKE CLEAR THAT THE LICENSING PROVISION WAS TO
APPLY WHERE NAVIGABLE WATERS ARE AFFECTED.  THE SENATE REPORT STATES:
"UNDER THIS SUBSECTION WITH THE TWO AMENDMENTS HERE MADE EVERY PERSON
INTENDING TO CONSTRUCT A PROJECT WHICH MIGHT CONCEIVABLY AFFECT ANY
NAVIGABLE WATERS WOULD BE UNDER THE DUTY OF COMING TO THE COMMISSION." 
S. REP. NO. 621, 74TH CONG., 1ST SESS., 47.  THE HOUSE REPORT EXPRESSES
SIMILAR VIEWS.  H.R. REP. NO. 1318, 74TH CONG., 1ST SESS., 25-26. 

FN5  SEE N. 2, SUPRA. 

FN6  IN LIGHT OF THE MAJORITY DECISION IN THIS CASE, I DO NOT FEEL IT
NECESSARY TO DEAL WITH THE COURT OF APPEALS DETERMINATION THAT THE
COMMISSION ERRED IN FINDING THAT THE HYDROELECTRIC PROJECT HERE
INVOLVED AFFECTED NAVIGABLE WATERS. 

                         APPENDIX A TO OPINION OF MR. JUSTICE

                            GOLDBERG, DISSENTING. 

EXCERPTS FROM SENATE DEBATE ON MAY 27, 1920, 59 CONG. REC. 7730. 

"MR. KING.  THIS BILL, AS I INTERPRET IT, WOULD MAKE EVERY STREAM
NAVIGABLE, EVEN TO THE HEADWATERS OF THE SMALLEST STREAM, OR UP TO THE
SNOW LINE, WHERE THE SNOW MELTS AND FINDS ITS WAY BY LITTLE TRICKLES
AND RIVULETS INTO SOME OTHER STREAM.  FOR INSTANCE, THIS LANGUAGE, IF
THE SENATOR WILL PARDON ME-----: 

"MR. NELSON.  LET ME CALL THE ATTENTION OF THE SENATOR TO THE FIRST
PART OF THE AMENDMENT, WHICH READS: 

"'NAVIGABLE WATERS' MEANS THOSE PARTS OF STREAMS OR OTHER BODIES OF
WATER OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS AUTHORITY TO
REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES----
: 

"MR. KING.  THE SENATOR WILL SEE THAT THAT DOES NOT IMPOSE ANY
LIMITATION UPON THE FEDERAL GOVERNMENT AS TO WHAT IT MAY REGULATE. 
WHEN IT CONFERS THE POWER TO REGULATE COMMERCE AMONG THE STATES, ET
CETERA, THAT IS NOT A DEFINITION OF WHAT COMMERCE IS OR THE EXTENT TO
WHICH CONGRESS MAY CONTROL STREAMS.  THE SUPREME COURT HAS HELD, AS I
UNDERSTAND, THAT TRIBUTARIES OF OTHER TRIBUTARIES, IF ANY PART OF SUCH
TRIBUTARY OF THE FINAL STREAM WAS NAVIGABLE, WOULD BE UNDER THE
COGNIZANCE OF THE FEDERAL GOVERNMENT.  THAT WOULD CARRY UP TO THE SNOW
LINE.    "MR. NELSON.  THE COURT'S DECISION ONLY GOES TO THIS EXTENT -
AND THE FACTS IN THE CASE MUST BE CONSIDERED - THAT AS TO THE
TRIBUTARIES THAT SUPPLY WATER TO THE MAIN STREAM, WHICH IS IN FACT AND
IN LAW NAVIGABLE, CONGRESS OF NECESSITY MUST HAVE SUFFICIENT
JURISDICTION OVER THOSE FEEDERS TO PREVENT THEIR BEING DAMMED UP AND
THEREBY PREVENTING THE SUPPLY OF WATER RUNNING INTO THE MAIN STREAM. 
THAT IS THE EXTENT OF THE DECISION AND THE SENATOR OUGHT TO SEE THAT
THAT IS INEVITABLE, FOR IF ALL THE FEEDERS OF OUR GREAT RIVERS, SUCH AS
THE MISSISSIPPI, THE MISSOURI, AND OTHER NAVIGABLE RIVERS, COULD BE
DAMMED UP SO THAT WATER WOULD BE KEPT AWAY FROM THEM THEY WOULD CEASE
TO BE NAVIGABLE. 

"MR. KING.  I AM NOT ARGUING THAT QUESTION. 

"MR. NELSON.  SO THE GOVERNMENT HAS JURISDICTION TO THE EXTENT THAT
THE SUPPLY OF WATER CAN NOT BE CUT OFF FROM A NAVIGABLE STREAM. 

"MR. KING.  OBVIOUSLY, THEN, UNDER THE SENATOR'S CONTENTION, THE
FEDERAL GOVERNMENT WOULD HAVE JURISDICTION OVER THE SNOW LINE, AND, AS
THE SENATOR FROM COLORADO (MR. THOMAS) SOTTO VOCE SAYS, IT WOULD HAVE
JURISDICTION OF THE CLOUDS WHICH PRODUCE THE SNOW WHICH MELTS AND
PRODUCES THE SPRING WHICH PRODUCES THE TRIBUTARY FLOWING INTO THE RIVER
WHICH IS NAVIGABLE.  SO THAT THE FEDERAL GOVERNMENT MAY STRETCH OUT ITS
POWERFUL AND OMNIPOTENT HAND UNTIL IT CAN GRASP THE SNOW IN THE
MOUNTAINS AND SAY, 'WE HAVE JURISDICTION OVER THAT.' 

"MR. NELSON.  THAT IS A FORCED CONSTRUCTION. 

"MR. KING.  I THINK THAT THE SENATOR'S POSITION LEADS TO THAT. 

"MR. NELSON.  IT DOES NOT LEAD TO THAT, AND THAT IS NOT MY POSITION. 
THE SENATOR A FEW MOMENTS AGO REFERRED TO THE RIO GRANDE CASE.  THE
COURT INTIMATED INCIDENTALLY IN THAT OPINION THAT THE CONTROL OF
CONGRESS EXTENDED TO THE FEEDERS OF THE STREAM, BUT WHEN IT COMES TO
APPLYING THE PRINCIPLES OF LAW TO THE FACTS IN EACH CASE THEY MUST BE
MEASURED BY THE FACTS.  THE COURT DID NOT MEAN TO DECIDE THAT THE
FEEDERS WERE NAVIGABLE.  WHAT THE COURT MEANT TO SAY WAS THAT THE
FEDERAL GOVERNMENT HAS SUFFICIENT JURISDICTON OVER THE FEEDERS TO SEE
TO IT THAT THE SUPPLY OF WATER SHALL NOT BE DESTROYED OR SO DIMINISHED
IN THE FEEDERS AS TO PREVENT THE MAIN STREAM FROM BEING NAVIGABLE. 
THE SENATOR ON REFLECTION OUGHT TO SEE THAT IF THE GOVERNMENT HAD NO
CONTROL WHATEVER OF THE FEEDERS - IF SUCH A THING WERE POSSIBLE FOR THE
STATES OR INDIVIDUALS TO DAM UP THE FEEDERS AND PREVENT A DROP OF WATER
FLOWING INTO THE MAIN NAVIGABLE STREAM, THEY COULD DRY UP THE MAIN
STREAM AND DESTROY NAVIGATION ON IT.  EXCEPT IN THOSE SECTIONS WHERE
THE WATER IS EXHAUSTED FOR IRRIGATION, THE ERECTION OF DAMS IN FEEDERS,
AS A MATTER OF FACT, FOR INSTANCE, IN THE EAST AND IN THE MIDDLE WEST,
DOES NOT DIMINISH THE SUPPLY OF WATER, FOR THE WATER FLOWS OVER THE DAM
IN ONE WAY OR ANOTHER AND ENTERS THE FEEDERS AND THEN THE MAIN STREAM. 
IT IS ONLY IN THE ARID WEST WHERE IT IS POSSIBLE TO DIVERT WATER
ENTIRELY FOR IRRIGATION PURPOSES FROM THE MAIN STREAM. 

"TO WHAT EXTENT CAN THAT BE DONE?  I TAKE IT THAT IF A CASE OF THAT
KIND SHOULD COME BEFORE THE COURT, THE COURT WOULD CONSIDER BOTH THE
RIGHTS OF THE FARMERS, WHO NEEDED THE WATER FOR IRRIGATION, AND THE
INTERESTS OF COMMERCE REQUIRING WATER FOR NAVIGATION, AND THE QUESTION
WOULD BE ONE OF FACT IN EACH CASE.  DOES THE DIVERSION OF THE WATER OF
A CERTAIN FEEDER OF A CERTAIN STREAM FOR IRRIGATION PURPOSES DIMINISH
THE QUANTITY OF THE WATER TO SUCH AN EXTENT AS TO DESTROY THE
NAVIGABILITY OF THE MAIN STREAM?  IF THE DIVERSION OF THE WATER DID NOT
DIMINISH THE NAVIGABILITY OF THE MAIN STREAM, THE GOVERNMENT WOULD HAVE
NO CONTROL WHATEVER.  FURTHERMORE, IT WOULD ONLY HAVE CONTROL TO THE
EXTENT OF THE SUPPLY OF WATER NEEDED TO SUBSERVE THE PURPOSES OF REAL
NAVIGATION. 

"WE ARE NOT SEEKING TO INTERFERE WITH THE PRESENT SITUATION, AND NO
MATTER WHAT WE PUT INTO THIS BILL, IF THE SENATOR FROM MAINE WILL
EXCUSE ME A MOMENT LONGER, WE CAN NOT CHANGE THE DECISIONS OF THE
SUPREME COURT AS TO THEIR DETERMINATION OF THE WORDS 'NAVIGABLE
STREAM.'  WE COULD NOT UNDO BY THIS LEGISLATION, IF WE SHOULD MAKE THE
EFFORT, WHAT THEY HAVE DECIDED.  WE HAVE MADE NO SUCH ATTEMPT.  WE HAVE
SIMPLY SAID THAT THOSE PARTS OF STREAMS OR BODIES OF WATER OVER WHICH
CONGRESS HAS JURISDICTION UNDER ITS AUTHORITY TO REGULATE COMMERCE WITH
FOREIGN NATIONS AND AMONG THE SEVERAL STATES, AND WHICH IN EITHER THEIR
NATURAL OR IMPROVED CONDITIONS, AND SO FORTH, ARE NAVIGABLE, SHALL BE
CONSIDERED TO BE NAVIGABLE STREAMS.  THAT IS ALL WE HAVE SAID.  WE HAVE
SIMPLY LEFT THE MATTER WHERE THE COURTS HAVE LEFT IT; AND IF WE
UNDERTOOK TO CHANGE THE LAW AS IT IS AND TO SAY THAT A CERTAIN CLASS OF
STREAMS WHICH ARE NAVIGABLE IN FACT ARE NOT NAVIGABLE THE SUPREME COURT
WOULD OVERRULE US." 

                         APPENDIX B TO OPINION OF MR. JUSTICE

                              GOLDBERG, DISSENTING. 

A MEMORANDUM PREPARED BY THE FEDERAL POWER COMMISSION AND SUBMITTED
TO THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE EXPLAINING
THE AMENDMENTS TO THE FEDERAL WATER POWER ACT STATES: 

"SECTION 210 OF THE BILL AMENDS SECTION 23 OF THE WATER POWER ACT
...  .  IN SUBSECTION (B) THE PRESENT PROVISION THAT THOSE INTENDING TO
UNDERTAKE PROJECTS ON NONNAVIGABLE TRIBUTARY OF A NAVIGABLE STREAM MAY
IN THEIR DISCRETION FILE DECLARATION OF SUCH INTENTION WITH THE
COMMISSION IS CHANGED SO AS TO MAKE IT A DUTY TO FILE SUCH A
DECLARATION BEFORE PROCEEDING WITH THE CONSTRUCTION, MAINTENANCE OR
OPERATION OF ANY PROJECT ON SUCH WATERS.  FURTHERMORE, A PROVISION IS
INSERTED EXPRESSLY MAKING IT UNLAWFUL TO CONSTRUCT A PROJECT ON ANY
NAVIGABLE WATERS WITHOUT A LICENSE GRANTED PURSUANT TO THE ACT.  THIS
LATTER PROVISION IS IN SUBSTANCE THE RESULT ACHIEVED BY THE RIVER AND
HARBOR ACT OF 1899 WHEN READ WITH THE WATER POWER ACT.  IT IS THOUGHT
DESIRABLE TO BRING TOGETHER THE REGULATIONS DEALING WITH POWER PROJECTS
IN A SINGLE ACT.  UNDER THIS SECTION AS AMENDED, EVERY PERSON INTENDING
TO CONSTRUCT A PROJECT WHICH MIGHT CONCEIVABLY AFFECT ANY NAVIGABLE
WATERS WOULD BE UNDER THE DUTY OF COMING TO THE COMMISSION.  THE ACT
WOULD BE GREATLY STRENGTHENED BY ENABLING THE COMMISSION TO PRESERVE
CONTROL OVER ALL PROJECTS WITH WHICH THE FEDERAL GOVERNMENT HAS ANY
VALID CONCERN."  HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 74TH CONG., 1ST SESS., 391. 

DOZIER DEVANE, SOLICITER FOR THE FEDERAL POWER COMMISSION TESTIFIED
AS FOLLOWS CONCERNING THE AMENDMENTS WHICH THE COMMISSION HAD
PREPARED: 

"MR. MARTIN.  ALTHOUGH IT MAY BE RATHER IN THE FORM OF REPETITION,
THE MEMORANDUM IMPRESSES ME THAT THE CONTENTION OF MR. MAPES IN SECTION
3 IS BROADER, FROM THE STANDPOINT OF COMMERCE IN THE WAY OF A POWER,
THAN THE LANGUAGE IN SECTION 4. 

"IT OCCURRED TO ME THAT YOU COULD JUST LEAVE THOSE WORDS 'NAVIGABLE
WATERS IN THE UNITED STATES' IN THE SECTION AND THEN ADD AS DEFINED IN

"MR. DEVANE.  NO, SIR; WHAT WE ARE ATTEMPTING TO DO IS TO MAKE IT
CLEAR THAT THE COMMISSION HAS THE AUTHORITY TO ISSUE A LICENSE UNDER

"MR. MARTIN.  THE ADDITION OF THE WORDS DEFINED IN SECTION 3, ADDED
TO 'NAVIGABLE WATERS OF THE UNITED STATES,' HOWEVER, WOULD INCORPORATE
THE SECTION 3 DEFINITION OF NAVIGABLE WATERS. 

"MR. DEVANE.  OF COURSE, WE THINK IT EXISTS WITHOUT THAT AMENDMENT. 

"MR. RYAN CALLS MY ATTENTION TO THE FACT THAT SECTION 3 MIGHT BE
CONSIDERED TO APPLY ONLY TO NAVIGABLE WATERS, WHILE SECTION 23 APPLIES
TO NONNAVIGABLE WATERS AS WELL. 

"THE JURISDICTION OF CONGRESS EXTENDS BEYOND THE NAVIGABLE WATERS. 
IT EXTENDS TO NONNAVIGABLE WATERS WHERE ANYTHING YOU DO IN THOSE RIVERS
OR STREAMS MIGHT AFFECT NAVIGATION AND THOSE ARE THE CASES WHICH FALL
UNDER SECTION 23 OF THE ACT. 

"MR. CROSSER.  WHAT WAS THAT LAST STATEMENT?  I DID NOT QUITE HEAR
IT. 

"MR. DEVANE.  SECTION 23 APPLIES TO NONNAVIGABLE WATERS, WHERE
ANYTHING THAT IS DONE IN THOSE WATERS MIGHT AFFECT INTERSTATE OR
FOREIGN COMMERCE. 

"THE CHAIRMAN.  I THINK THE COMMITTEE HAS YOUR POSITION ON THAT.  YOU
MAY PASS ON. 

     *         *        *        *        * 

MR. MAPES.  DOES THE COMMISSION ARRIVE AT ITS CONCLUSION, REACH ABOUT
THE SAME CONCLUSION, AS TO WHETHER A PLANT SHOULD OBTAIN THE LICENSE OR
NOT, AS CONGRESS AND THE BOARD OF ENGINEERS DO WHEN THEY DETERMINE THAT
A STREAM IS NAVIGABLE AND THAT, THEREFORE, PEOPLE WHO DESIRE TO BUILD A
BRIDGE ACROSS IT, MUST BET THE CONSENT OF CONGRESS TO DO IT? 

"MR. DEVANE.  THE COMMISSION IN THE FIRST INSTANCE REFERS THESE
DECLARATIONS OF INTENTION THE THE WAR DEPARTMENT, THE ENGINEER CORPS OF
THE WAR DEPARTMENT, AND AN INVESTIGATION AND RECOMMENDATION IS MADE BY
THAT DEPARTMENT, WITH REFERENCE TO THE EFFECT UPON INTERSTATE OR
FOREIGN COMMERCE, AND THE COMMISSION, IF IT IS NECESSARY AFTER THAT
INVESTIGATION AND REPORT IS MADE, HOLDS HEARINGS, TAKES EVIDENCE, AND
MAKES ITS FINDINGS. 

"THE COMMISSION ATTEMPTS TO ACT ACCORDING TO THE FACTS AS THEY ARE
SHOWN.  IN VERY FEW OF THE CASES IS THERE EVER ANY CONTROVERSY. 

"MR. MAPES.  ARE THESE TWO EXPRESSIONS SYNONYMOUS, OR NOT:  THE
EFFECT UPON INTERSTATE COMMERCE, AND THE NAVIGABILITY OF A STREAM? 

"MR. DEVANE.  MR. MAPES, I THINK THEY ARE.  DO YOU WANT TO HEAR
ARGUMENT ON THE OTHER SIDE AS TO WHETHER THEY ARE OR NOT? 

"MR. MAPES.  NO. 

"MR. DEVANE.  I SEE THAT YOU HAVE SOME KNOWLEDGE AT LEAST OF THE FACT
THAT THAT QUESTION HAS BEEN DEBATED, BUT TO ME IT IS A QUESTION OF
'TWEEDLEDEE AND TWEEDLEDUM.'  I CANNOT TAKE MY LEGAL PROCESSES TO THAT
REFINEMENT.  THERE MAY BE A DIFFERENCE; YES, SIR.  IT IS CONCEIVABLE,
AT LEAST IN SOMEBODY'S MIND, THAT THE CONSTRUCTION OF A PROJECT IN A
CERTAIN STREAM WILL NOT AT THE TIME IN FACT HAVE ANY EFFECT UPON
INTERSTATE OR FOREIGN COMMERCE, BUT THAT THE CONSTRUCTION OF THE
PROJECT HAS A POTENTIAL POSSIBILITY OF AFFECTING INTERSTATE OR FOREIGN
COMMERCE AT SOME FUTURE TIME WHICH WILL PREVENT A MAN FROM SPENDING
MONEY TO PUT COMMERCE ON THAT STREAM. 

"NOW THAT IS THE WAY THE ARGUMENT RUNS. 

     *        *         * *         * 

"MR. DEVANE.  WE ARE NOT SEEKING BY ANY AMENDMENT THAT WE PROPOSE TO
ENLARGE THE JURISDICTION OF THE COMMISSION IN THE WATERS OF THE UNITED
STATES OVER WHICH CONGRESS HAS CONTROL. 

"MR. HOLMES.  I UNDERSTOOD YOU TO SAY YOU WERE, SO THAT YOU COULD
CONTROL OTHER THAN NAVIGABLE WATERS. 

"MR. DEVANE.  THAT IS THE LAW TODAY. 

"MR. HOLMES.  THEN I MISUNDERSTOOD YOU IN THAT REGARD. 

"MR. DEVANE.  WELL, I WOULD LIKE TO MAKE THAT PERFECTLY CLEAR. 

"WE ARE NOT EXTENDING THE POWER.  WE ARE NOT PROPOSING ANY AMENDMENT
THAT EXTENDS THE POWER OF THE COMMISSION OVER ANY WATERS OF THE UNITED
STATES THAT THEY DO NOT HAVE POWER OVER TODAY - NOT AT ALL. 

     *   *         *         *         * 

"AT THIS POINT, MR. MAPES, I THINK WE MIGHT CLEAR UP THE DIFFICULTY
THAT I HAD IN ANSWERING A QUESTION THAT YOU ASKED ME ON SATURDAY. 

"YOU WILL OBSERVE THAT UNDER SUBSECTION (B) OF SECTION 23, PERSONS
DESIRING TO CONSTRUCT PROJECTS IN WATERS OVER WHICH CONGRESS HAS
JURISDICTION, BUT WHICH MAY NOT BE LOOKED UPON AS NAVIGABLE WATERS, AS
SUCH, MAY COME TO THE COMMISSION UNDER A DECLARATION OF INTENTION AND
HAVE DETERMINED IN ADVANCE OF THE CONSTRUCTION WHETHER OR NOT A LICENSE
IS NECESSARY. 

"THAT PROVISION IN SECTION 23 IS BROADER THAN THE LANGUAGE IN SECTION
3, WHERE THE DEFINITION OF NAVIGABLE WATERS IS USED, THE ONE THAT YOU
WERE ASKING ME ABOUT, ON SATURDAY. 

"THE DEFINITION OF NAVIGABLE WATERS IN SECTION 3 APPLIES ONLY TO
THOSE WATERS THAT ARE IN FACT NAVIGABLE. 

"SECTION 23 APPLIES TO WATERS THAT ARE NOT IN FACT NAVIGABLE, BUT
WHERE CONSTRUCTION MAY AFFECT INTERSTATE OR FOREIGN COMMERCE. 

     *         *         *         *        * 

"MR. MAPES.  YES.  HAS THE COURT SUSTAINED THE COMMISSION IN THAT
RESPECT, THE JURISDICTION OF THE COMMISSION? 

"MR. DEVANE.  OF NONNAVIGABLE WATERS? 

"MR. MAPES.  YES. 

"MR. DEVANE.  YOU ARE ASKING ABOUT THE JURISDICTION OF CONGRESS OVER
THESE NONNAVIGABLE WATERS, THAT AFFECT NAVIGATION? 

"MR. MAPES.  YES. 

"MR. DEVANE.  YES; THE JURISDICTION OF CONGRESS OVER SUCH STREAMS WAS
UPHELD IN THE CASE OF THE UNITED STATES V. RIO GRANDE DAM & IRRIGATION
CO., 174 U.S. 690.  THAT WAS DECIDED UNDER THE RIVERS AND HARBORS ACT
OF 1899, WHICH IN EFFECT IS THE SAME AS SECTION 23 OF THIS ACT." 

     *         *       *         *         * 

HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, 74TH CONG., 1ST SESS., 471-472, 474, 476, 489, 490. 
..END :









CORBETT, GUARDIAN V. STERGIOS, AKA STERYIAKIS 381 U.S. 124 


NO. 179.  ARGUED APRIL 27, 1965.  - DECIDED MAY 3, 1965.  - 256 IOWA 12,
126 N.W.2D 342, REVERSED. 


CORBETT, GUARDIAN V. STERGIOS, AKA STERYIAKIS. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

IN LIGHT OF OUR CONSTRUCTION OF THE TREATY OF FRIENDSHIP, COMMERCE
AND NAVIGATION BETWEEN THE UNITED STATES AND THE KINGDOM OF GREECE,
SIGNED AUGUST 3, 1951, EFFECTIVE OCTOBER 13, 1954,* A CONSTRUCTION
CONFIRMED BY REPRESENTATIONS OF THE SIGNATORIES WHOSE VIEWS WERE NOT
AVAILABLE TO THE SUPREME COURT OF IOWA, THE JUDGMENT IS REVERSED. 
CLARK V. ALLEN, 331 U.S. 503. 

*5 U.S. TREATIES AND OTHER INTERNATIONAL AGREEMENTS 1829; T.I.A.S.
NO. 3057. 
..END :










SUSSER V. CARVEL CORP. 381 U.S. 125 


NO. 355.  ARGUED APRIL 29, 1965.  - DECIDED MAY 3, 1965.  - CERTIORARI
DISMISSED AS IMPROVIDENTLY GRANTED.  - REPORTED BELOW:  332 F.2D 505. 


SUSSER ET AL. V. CARVEL CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :















WATTS V. SEWARD SCHOOL BOARD 381 U.S. 126 


NO. 923.  DECIDED MAY 3, 1965.  - CERTIORARI GRANTED; 395 P.2D 372,
JUDGMENT VACATED AND CASE REMANDED. 


THE CAUSE, INVOLVING SCHOOLTEACHERS WHO CLAIM THAT THEIR DISMISSALS
FOR ACTIVITIES IN ATTEMPTING TO REMOVE A SCHOOL OFFICIAL AND BOARD
MEMBERS VIOLATE THE FIRST AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION, IS REMANDED TO THE SUPREME COURT OF ALASKA TO ALLOW THAT
COURT TO CONSIDER THE EFFECT, IF ANY, OF SUPERVENING CHANGES IN STATE
LAW UPON THIS CASE. 

WATTS ET AL. V. SEWARD SCHOOL BOARD ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALASKA. 

PER CURIAM. 

PETITIONERS WATTS AND BLUE WERE DISMISSED FROM THEIR POSITIONS AS
SCHOOLTEACHERS IN SEWARD, ALASKA, ON GROUNDS OF "IMMORALITY," WHICH
UNDER ALASKA STATUTES 1962, SEC. 14.20.170 WAS DEFINED AS "CONDUCT OF
THE PERSON TENDING TO BRING THE INDIVIDUAL CONCERNED OR THE TEACHING
PROFESSION INTO PUBLIC DISGRACE OR DISRESPECT."  PETITIONERS'
DISMISSALS WERE UPHELD BY THE ALASKA SUPERIOR COURT (THIRD JUDICIAL
DISTRICT), AND ON APPEAL THE ALASKA SUPREME COURT AFFIRMED THE SUPERIOR
COURT'S DECISION.  395 P.2D 372.  THE ALASKA SUPREME COURT NOTED THAT
"THE IMMORAL CONDUCT COMPLAINED OF AS TO THE APPELLANT WATTS WAS HIS
HOLDING OF PRIVATE CONVERSATIONS WITH VARIOUS TEACHERS IN WHICH HE
SOLICITED THEIR SUPPORT IN AN ATTEMPT TO OUST THE SCHOOL SUPERINTENDENT
FROM HIS JOB.  THE ALLEGEDLY IMMORAL CONDUCT OF THE APPELLANT BLUE WAS
HIS MAKING OF A SPEECH TO A LABOR UNION AT SEWARD IN WHICH HE STATED,
'WE HAVE BEEN UNABLE TO GET RID OF THE SCHOOL SUPERINTENDENT, SO WE ARE
GOING TO GET RID OF THE BOARD,' OR WORDS TO THAT EFFECT."  395 P.2D, AT
374.  THE ALASKA SUPREME COURT HELD THAT THIS CONDUCT "HAD A TENDENCY
TO BRING THE PETITIONERS  ...  AND THE TEACHING PROFESSION INTO PUBLIC
DISGRACE OR DISRESPECT," WITHIN THE TERMS OF THE STATUTE, 395 P.2D, AT
375, AND IT THEREFORE SUSTAINED THEIR DISMISSALS.  PETITIONERS CONTEND
THAT THEIR DISMISSALS FOR ENGAGING IN THE CONDUCT HERE DESCRIBED
UNCONSTITUTIONALLY INFRINGE THEIR RIGHTS TO POLITICAL EXPRESSION
GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION. 

WE NEED NOT CONSIDER PETITIONERS' CONTENTIONS AT THIS TIME, FOR SINCE
THEIR PETITION FOR CERTIORARI WAS FILED ALASKA HAS AMENDED ITS STATUTES
IN THIS AREA.  HOUSE BILL 27, ADOPTED BY THE ALASKA LEGISLATURE AND
SIGNED BY THE GOVERNOR ON MARCH 31, 1965, NOW DEFINES "IMMORALITY" AS
GROUNDS FOR REVOCATION OF A TEACHING CERTIFICATE, AS "THE COMMISSION OF
AN ACT WHICH, UNDER THE LAWS OF THE STATE, CONSTITUTES A CRIME
INVOLVING MORAL TURPITUDE."  MOREOVER, ALASKA STATUTES, TIT. 14, C. 20,
HAVE BEEN AMENDED BY THE ADDITION OF A NEW SECTION WHICH READS: 

"SEC. 14.20.095.  RIGHT TO COMMENT AND CRITICIZE NOT TO BE
RESTRICTED.  NO RULE OR REGULATION OF THE COMMISSIONER OF EDUCATION, A
LOCAL SCHOOL BOARD, OR LOCAL SCHOOL ADMINISTRATOR MAY RESTRICT OR
MODIFY THE RIGHT OF A TEACHER TO ENGAGE IN COMMENT AND CRITICISM
OUTSIDE SCHOOL HOURS, RELATIVE TO SCHOOL ADMINISTRATORS, MEMBERS OF THE
GOVERNING BODY OF ANY SCHOOL OR SCHOOL DISTRICT, ANY OTHER PUBLIC
OFFICIAL, OR ANY SCHOOL EMPLOYEE, TO THE SAME EXTENT THAT ANY PRIVATE
INDIVIDUAL MAY EXERCISE THE RIGHT." 

THIS COURT HAS HELD THAT SUPERVENING CHANGES IN STATE LAW THAT MAY BE
RELEVANT TO THE DISPOSITION OF A CASE MAY REQUIRE THAT THE CAUSE BE
REMANDED FOR APPROPRIATE ACTION BY THE STATE COURT.  SEE, E.G.,
MISSOURI EX REL. WABASH R. CO. V. PUBLIC SERVICE COMM'N, 273 U.S. 126,
131.  CF. TRUNKLINE GAS CO. V. HARDIN COUNTY, 375 U.S. 8.  ACCORDINGLY,
IT IS APPROPRIATE TO ALLOW THE ALASKA COURT TO CONSIDER THE EFFECT OF
THE NEW ALASKA STATUTES UPON THIS CASE.  TO THAT END, THE PETITION FOR
CERTIORARI IS GRANTED, THE JUDGMENT OF THE SUPREME COURT OF ALASKA IS
VACATED, AND THIS CASE IS REMANDED TO THAT COURT FOR SUCH FURTHER
CONSIDERATION AS MAY BE DEEMED APPROPRIATE BY THAT COURT UNDER ALASKA
LAW.  VACATED AND REMANDED. 
..END :
























PARROT V. TALLAHASSEE 381 U.S. 129 


NO. 958.  DECIDED MAY 3, 1965.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED. 


A MINOR PROCEDURAL DEFECT WHICH PETITIONERS TRIED TO CORRECT DOES NOT
CONSTITUTE AN ADEQUATE INDEPENDENT STATE GROUND FOR DECISION BARRING
REVIEW BY THIS COURT.  THE PETITION FOR WRIT OF CERTIORARI IS GRANTED
AND THE JUDGMENT IS REVERSED.  ROBINSON V. FLORIDA, 378 U.S. 153. 

PARROT ET AL. V. CITY OF TALLAHASSEE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF THE SECOND
JUDICIAL CIRCUIT, LEON COUNTY, FLORIDA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE FLORIDA CIRCUIT COURT IS REVERSED.  ROBINSON V. FLORIDA, 378 U.S.
153. 

RESPONDENT ASSERTS THAT THE JUDGMENT BELOW RESTS ON AN ADEQUATE
INDEPENDENT STATE GROUND IN THAT PETITIONERS, THROUGH MISUNDERSTANDING
OR OVERSIGHT, FAILED TO OBTAIN CERTIFICATION OF THE CIRCUIT COURT
RECORD SUBMITTED WITH THEIR OTHERWISE TIMELY PETITION FOR WRIT OF
CERTIORARI IN THE FLORIDA DISTRICT COURT OF APPEAL, FIRST DISTRICT. 
PETITIONERS TRIED TO CORRECT THIS NONJURISDICTIONAL DEFECT (SEE, E.G.,
ARIS V. STATE, 162 SO. 2D 670 (FLA. DIST. CT. APP.)) WHEN NOTIFIED OF
IT, BUT THEIR PETITION WAS DISMISSED NONETHELESS.  WE DO NOT FIND THIS
PROCEDURAL GROUND ADEQUATE TO BAR REVIEW BY THIS COURT.  SEE STAUB V.
CITY OF BAXLEY, 355 U.S. 313; NAACP V. ALABAMA, 357 U.S. 449; NAACP V.
ALABAMA, 377 U.S. 288. 
..END :



















MCCLELLAN V. CHESAPEAKE & OHIO RAILWAY CO. 381 U.S. 130 


NO. 994.  DECIDED MAY 3, 1965.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


MCCLELLAN V. CHESAPEAKE & OHIO RAILWAY CO. 

APPEAL FROM THE COURT OF APPEALS OF OHIO, CUYAHOGA COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF NOEL 380 U.S. 678 


NO. 503.  ARGUED APRIL 1, 1965.  - DECIDED APRIL 29, 1965.  - 332 F.2D
950, REVERSED. 


JUST PRIOR TO BOARDING AN AIRPLANE WHICH LATER CRASHED IN FLIGHT
DECEDENT APPLIED FOR FLIGHT INSURANCE POLICIES, NAMING HIS WIFE AS
BENEFICIARY.  THE POLICIES, WHICH GRANTED THE INSURED THE RIGHT TO
ASSIGN THEM OR TO CHANGE THE BENEFICIARY, WERE HANDED TO THE WIFE, WHO
WAS PAID THEIR FACE VALUE FOLLOWING THE DECEDENT'S DEATH FROM THE
CRASH.  THE PETITIONER DETERMINED THAT THE PROCEEDS SHOULD HAVE BEEN
INCLUDED IN THE ESTATE TAX RETURN PURSUANT TO 26 U.S.C. SEC. 2042(2),
WHICH REQUIRES INCLUSION OF AMOUNTS RECEIVED BY BENEFICIARIES FROM
INSURANCE ON THE LIFE OF THE DECEDENT IF AT HIS DEATH HE POSSESSED ANY
OF THE INCIDENTS OF OWNERSHIP.  THE TAX COURT SUSTAINED THE
COMMISSIONER'S RULING, BUT THE COURT OF APPEALS REVERSED,
DISTINGUISHING LIFE INSURANCE, PAYABLE INEVITABLY, FROM ACCIDENT
INSURANCE, WHICH COVERS AN EVITABLE RISK.  HELD: 

1.  IN ACCORDANCE WITH LONG-STANDING AND CONSISTENT ADMINISTRATIVE
INTERPRETATION DEEMED TO HAVE THE EFFECT OF LAW, AS APPLIED TO THIS
SUBSTANTIALLY RE-ENACTED STATUTE, THESE INSURANCE POLICIES WERE ON THE
"LIFE OF THE DECEDENT" WITHIN THE MEANING OF SEC. 2042(2).  ACKERMAN V.
COMMISSIONER, 15 B.T.A. 635, FOLLOWED.  PP. 680-682. 

2.  FOR ESTATE TAX PURPOSES DECEDENT POSSESSED INCIDENTS OF OWNERSHIP
AT THE TIME OF HIS DEATH, WITHOUT REGARD TO HIS ABILITY TO EXERCISE
THEM AT ANY GIVEN MOMENT, AS HE HAD THE POWER OF ASSIGNMENT OF THE
POLICY OR TO CHANGE THE BENEFICIARY.  PP. 682-684. 

COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF NOEL ET A. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FROM THE THIRD
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A FEDERAL ESTATE TAX CASE, RAISING QUESTIONS UNDER SEC.
2042(2) OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. SEC. 2042(2)
(1958 ED.), WHICH REQUIRES INCLUSION IN THE GROSS ESTATE OF A DECEDENT
OF AMOUNTS RECEIVED BY BENEFICIARIES OTHER THAN THE EXECUTOR FROM
"INSURANCE UNDER POLICIES ON THE LIFE OF THE DECEDENT" IF THE DECEDENT
"POSSESSED AT HIS DEATH ANY OF THE INCIDENTS OF OWNERSHIP, EXERCISABLE
EITHER ALONE OR IN CONJUNCTION WITH ANY OTHER PERSON  ...  ."  (FN1)
THE QUESTIONS PRESENTED IN THIS CASE ARE WHETHER CERTAIN FLIGHT
INSURANCE POLICIES PAYABLE UPON THE ACCIDENTAL DEATH OF THE INSURED
WERE POLICIES "ON THE LIFE OF THE DECEDENT" AND WHETHER AT HIS DEATH HE
HAD RESERVED ANY OF THE "INCIDENTS OF OWNERSHIP" IN THE POLICIES. 

THESE ISSUES EMERGE FROM THE FOLLOWING FACTS.  RESPONDENT RUTH M.
NOEL DROVE HER HUSBAND FROM THEIR HOME TO NEW YORK INTERNATIONAL
AIRPORT WHERE HE WAS TO TAKE AN AIRPLANE TO VENEZUELA.  JUST BEFORE
TAKING OFF, MR. NOEL SIGNED APPLICATIONS FOR TWO ROUND-TRIP FLIGHT
INSURANCE POLICIES, AGGREGATING $125,000 AND NAMING HIS WIFE AS
BENEFICIARY.  MRS. NOEL TESTIFIED THAT SHE PAID THE PREMIUMS OF $2.50
EACH ON THE POLICIES AND THAT HER HUSBAND THEN INSTRUCTED THE SALES
CLERK TO "GIVE THEM TO MY WIFE.  THEY ARE HERS NOW, I NO LONGER HAVE
ANYTHING TO DO WITH THEM."  THE CLERK GAVE HER THE POLICIES, WHICH SHE
KEPT.  LESS THAN THREE HOURS LATER MR. NOEL'S PLANE CRASHED INTO THE
ATLANTIC OCEAN AND HE AND ALL OTHERS ABOARD WERE KILLED.  THEREAFTER
THE COMPANIES PAID MRS. NOEL THE $125,000 FACE VALUE OF THE POLICIES,
WHICH WAS NOT INCLUDED IN THE ESTATE TAX RETURN FILED BY HIS
EXECUTORS.  THE COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THE
PROCEEDS OF THE POLICIES SHOULD HAVE BEEN INCLUDED AND THE TAX COURT
SUSTAINED THAT DETERMINATION, HOLDING THAT THE FLIGHT ACCIDENT POLICIES
WERE INSURANCE "ON THE LIFE OF THE DECEDENT"; THAT MR. NOEL HAD
POSSESSED EXERCISABLE "INCIDENTS OF OWNERSHIP" IN THE POLICIES AT HIS
DEATH; AND THAT THE $125,000 PAID TO MRS. NOEL AS BENEFICIARY WAS
THEREFORE INCLUDABLE IN THE GROSS ESTATE.  39 T.C. 466.  ALTHOUGH
AGREEING THAT DECEDENT'S RESERVED RIGHT TO ASSIGN THE POLICIES AND TO
CHANGE THE BENEFICIARY AMOUNTED TO "EXERCISABLE INCIDENTS OF OWNERSHIP
WITHING THE MEANING OF THE STATUTE," THE COURT OF APPEALS NEVERTHELESS
REVERSED, HOLDING THAT GIVEN "ITS ORDINARY, PLAIN AND GENERALLY
ACCEPTED MEANING," THE STATUTORY PHRASE "POLICIES ON THE LIFE OF THE
DECEDENT" DOES NOT APPLY TO INSURANCE PAID ON ACCOUNT OF ACCIDENTAL
DEATH UNDER POLICIES LIKE THOSE HERE.  332 F.2D 950.  THE COURT'S
REASON FOR DRAWING THE DISTINCTION WAS THAT UNDER A LIFE INSURANCE
CONTRACT AN INSURER "AGREES TO PAY A SPECIFIED SUM UPON THE OCCURRENCE
OF AN INEVITABLE EVENT," WHEREAS ACCIDENT INSURANCE COVERS A RISK
"WHICH IS EVITABLE AND NOT LIKELY TO OCCUR."  332 F.2D, AT 952. 
BECAUSE OF THE IMPORTANCE OF AN AUTHORITATIVE ANSWER TO THESE QUESTIONS
IN THE ADMINISTRATION OF THE ESTATE TAX LAWS, WE GRANTED CERTIORARI TO
DECIDE THEM.  370 U.S. 927. 

                                             I. 

IN 1929, 36 YEARS AGO, THE BOARD OF TAX APPEALS, PREDECESSOR TO THE
TAX COURT, HELD IN ACKERMAN V. COMMISSIONER, 15 B.T.A. 635, THAT
"AMOUNTS RECEIVED AS ACCIDENT INSURANCE" BECAUSE OF THE DEATH OF THE
INSURED WERE INCLUDABLE IN THE ESTATE OF THE DECEASED.  (FN2)  THE
BOARD OF TAX APPEALS RECOGNIZED THAT "THERE IS A DISTINCTION BETWEEN
LIFE INSURANCE AND ACCIDENT INSURANCE, THE FORMER INSURING AGAINST
DEATH IN ANY EVENT AND THE LATTER ...  AGAINST DEATH UNDER CERTAIN
CONTINGENCIES ...  ."  THE COURT OF APPEALS IN THE CASE NOW BEFORE US
CONSIDERED THIS DISTINCTION BETWEEN AN "INEVITABLE" AND AN "EVITABLE"
EVENT TO BE OF CRUCIAL SIGNIFICANCE UNDER THE STATUTE.  THE BOARD OF
TAX APPEALS IN ACKERMAN DID NOT, STATING "WE FAIL TO SEE WHY ONE IS NOT
TAKEN OUT UPON THE LIFE OF THE POLICY-HOLDER AS MUCH AS THE OTHER.  IN
EACH CASE THE RISK ASSUMED BY THE INSURER IS THE LOSS OF THE INSURED'S
LIFE, AND THE PAYMENT OF THE INSURANCE MONEY IS CONTINGENT UPON THE
LOSS OF LIFE."  THIS VIEW OF THE BOARD OF TAX APPEALS IS WHOLLY
CONSISTENT WITH THE LANGUAGE OF THE STATUTE ITSELF WHICH MAKES NO
DISTINCTION BETWEEN "POLICIES ON THE LIFE OF THE DECEDENT" WHICH ARE
PAYABLE IN ALL EVENTS AND THOSE PAYABLE ONLY IF DEATH COMES IN A
CERTAIN WAY OR WITHIN A CERTAIN TIME.  EVEN WERE THE STATUTORY LANGUAGE
LESS CLEAR, SINCE THE BOARD OF TAX APPEALS' ACKERMAN CASE IT HAS BEEN
THE SETTLED AND CONSISTENT ADMINISTRATIVE PRACTICE TO INCLUDE INSURANCE
PROCEEDS FOR ACCIDENTAL DEATH UNDER POLICIES LIKE THESE IN THE ESTATES
OF DECEDENTS.  THE TREASURY REGULATIONS REMAIN UNCHANGED FROM THE TIME
OF THE ACKERMAN DECISION (FN3) AND FROM THAT DAY TO THIS CONGRESS HAS
NEVER ATTEMPTED TO LIMIT THE SCOPE OF THAT DECISION OR THE ESTABLISHED
ADMINISTRATIVE CONSTRUCTION OF SEC. 2042(2), ALTHOUGH IT HAS RE-ENACTED
THAT SECTION AND AMENDED IT IN OTHER RESPECTS A NUMBER OF TIMES.  (FN4)
WE HAVE HELD IN MANY CASES THAT SUCH A LONG-STANDING ADMINISTRATIVE
INTERPRETATION, APPLYING TO A SUBSTANTIALLY RE-ENACTED STATUTE, IS
DEEMED TO HAVE RECEIVED CONGRESSIONAL APPROVAL AND HAS THE EFFECT OF
LAW.  SEE, E.G., NATIONAL LEAD CO. V. UNITED STATES, 252 U.S. 140, 146;
UNITED STATES V. DAKOTA-MONTANA OIL CO., 288 U.S. 459, 466.  WE HOLD
HERE THAT THESE INSURANCE POLICIES, WHETHER CALLED "FLIGHT ACCIDENT
INSURANCE" OR "LIFE INSURANCE," WERE IN EFFECT INSURANCE TAKEN OUT ON
THE "LIFE OF THE DECEDENT" WITHIN THE MEANING OF SEC. 2042(2). 

           II. 

THE EXECUTORS' SECOND CONTENTION IS THAT EVEN IF THESE WERE POLICIES
"ON THE LIFE OF THE DECEDENT," MRS. NOEL OWNED THEM COMPLETELY, AND THE
DECEDENT THEREFORE POSSESSED NO EXERCISABLE INCIDENT OF OWNERSHIP IN
THEM AT THE TIME OF HIS DEATH SO AS TO MAKE THE PROCEEDS INCLUDABLE IN
HIS ESTATE.  WHILE NOT CLEARLY SPELLED OUT, THE CONTENTION THAT THE
DECEDENT RESERVED NO INCIDENT OF OWNERSHIP IN THE POLICIES RESTS ON
THREE ALTERNATIVE CLAIMS:  (A) THAT MRS. NOEL PURCHASED THE POLICIES
AND THEREFORE OWNED THEM; (B) THAT EVEN IF HER HUSBAND OWNED THE
POLICIES, HE GAVE THEM TO HER, THEREBY DEPRIVING HIMSELF OF POWER TO
ASSIGN THE POLICIES OR TO CHANGE THE BENEFICIARY; AND (C) EVEN ASSUMING
HE HAD CONTRACTUAL POWER TO ASSIGN THE POLICIES OR MAKE A BENEFICIARY
CHANGE, THIS POWER WAS ILLUSORY AS HE COULD NOT POSSIBLY HAVE EXERCISED
IT IN THE INTERVAL BETWEEN TAKE-OFF AND THE FATAL CRASH IN THE
ATLANTIC. 

(A)  THE CONTENTION THAT MRS. NOEL BOUGHT THE POLICIES AND THEREFORE
OWNED THEM RESTS SOLELY ON HER TESTIMONY THAT SHE FURNISHED THE MONEY
FOR THEIR PURCHASE, INTENDING THEREBY TO PRESERVE HER RIGHT TO CONTINUE
AS BENEFICIARY.  ACCEPTING HER CLAIM THAT SHE SUPPLIED THE MONEY TO BUY
THE POLICIES FOR HER OWN BENEFIT (WHICH THE TAX COURT DID NOT DECIDE),
WHAT SHE BOUGHT NONETHELESS WERE POLICY CONTRACTS CONTAINING AGREEMENTS
BETWEEN HER HUSBAND AND THE COMPANIES.  THE CONTRACTS THEMSELVES
GRANTED TO MR. NOEL THE RIGHT EITHER TO ASSIGN THE POLICIES OR TO
CHANGE THE BENEFICIARY WITHOUT HER CONSENT.  THEREFORE THE CONTRACTS
SHE BOUGHT BY THEIR VERY TERMS REBUT HER CLAIM THAT SHE BECAME THE
COMPLETE, UNCONDITIONAL OWNER OF THE POLICIES WITH AN IRREVOCABLE RIGHT
TO REMAIN THE BENEFICIARY. 

(B)  THE CONTENTION THAT MR. NOEL GAVE OR ASSIGNED THE POLICIES TO
HER AND THEREFORE WAS WITHOUT POWER THEREAFTER TO ASSIGN THEM OR TO
CHANGE THE BENEFICIARY STANDS NO BETTER UNDER THESE FACTS.  THE
CONTRACT TERMS PROVIDED THAT THESE POLICIES COULD NOT BE ASSIGNED NOR
COULD THE BENEFICIARY BE CHANGED WITHOUT A WRITTEN ENDORSEMENT ON THE
POLICIES.  NO SUCH ASSIGNMENT OR CHANGE OF BENEFICIARY WAS ENDORSED ON
THESE POLICIES, AND CONSEQUENTLY THE POWER TO ASSIGN THE POLICIES OR
CHANGE THE BENEFICIARY REMAINED IN THE DECEDENT AT THE TIME OF HIS
DEATH. 

(C)  OBVIOUSLY, THERE WAS NO PRACTICAL OPPORTUNITY FOR THE DECEDENT
TO ASSIGN THE POLICIES OR CHANGE THE BENEFICIARY BETWEEN THE TIME HE
BOARDED THE PLANE AND THE TIME HE DIED.  THAT TIME WAS TOO SHORT AND
HIS WIFE HAD THE POLICIES IN HER POSSESSION AT HOME.  THESE
CIRCUMSTANCES DISABLED HIM FOR THE MOMENT FROM EXERCISING THOSE
"INCIDENTS OF OWNERSHIP" OVER THE POLICIES WHICH WERE UNDOUBTEDLY HIS. 
DEATH INTERVENED BEFORE THIS TEMPORARY DISABILITY WAS REMOVED.  BUT THE
SAME COULD BE SAID ABOUT A MAN OWNING AN ORDINARY LIFE INSURANCE POLICY
WHO BOARDED THE PLANE AT THE SAME TIME OR FOR THAT MATTER ABOUT ANY
MAN'S EXERCISE OF OWNERSHIP OVER HIS PROPERTY WHILE ABOARD AN AIRPLANE
IN THE THREE HOURS BEFORE A FATAL CRASH.  IT WOULD STRETCH THE
IMAGINATION TO THINK THAT CONGRESS INTENDED TO MEASURE ESTATE TAX
LIABILITY BY AN INDIVIDUAL'S FLUCTUATING, DAY-BY-DAY, HOUR-BY-HOUR
CAPACITY TO DISPOSE OF PROPERTY WHICH HE OWNS.  WE HOLD THAT ESTATE TAX
LIABILITY FOR POLICIES "WITH RESPECT TO WHICH THE DECEDENT POSSESSED AT
HIS DEATH ANY OF THE INCIDENTS OF OWNERSHIP" DEPENDS ON A GENERAL,
LEGAL POWER TO EXERCISE OWNERSHIP, WITHOUT REGARD TO THE OWNER'S
ABILITY TO EXERCISE IT AT A PARTICULAR MOMENT.  NOTHING WE HAVE SAID IS
TO BE TAKEN AS MEANING THAT A POLICYHOLDER IS WITHOUT POWER TO DIVEST
HIMSELF OF ALL INCIDENTS OF OWNERSHIP OVER HIS INSURANCE POLICIES BY A
PROPER GIFT OR ASSIGNMENT, SO AS TO BAR ITS INCLUSION IN HIS GROSS
ESTATE UNDER SEC. 2042(2).  WHAT WE DO HOLD IS THAT NO SUCH TRANSFER
WAS MADE OF THE POLICIES HERE INVOLVED.  THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED AND THE JUDGMENT OF THE TAX COURT IS AFFIRMED.  IT
IS SO ORDERED. 

FN1  "SEC.  2042.  PROCEEDS OF LIFE INSURANCE. 

"THE VALUE OF THE GROSS ESTATE SHALL INCLUDE THE VALUE OF ALL
PROPERTY: 

"(1) RECEIVABLE BY THE EXECUTOR. 

"TO THE EXTENT OF THE AMOUNT RECEIVABLE BY THE EXECUTOR AS INSURANCE
UNDER POLICIES ON THE LIFE OF THE DECEDENT. 

"(2) RECEIVABLE BY OTHER BENEFICIARIES. 

"TO THE EXTENT OF THE AMOUNT RECEIVABLE BY ALL OTHER BENEFICIARIES AS
INSURANCE UNDER POLICIES ON THE LIFE OF THE DECEDENT WITH RESPECT TO
WHICH THE DECEDENT POSSESSED AT HIS DEATH ANY OF THE INCIDENTS OF
OWNERSHIP, EXERCISABLE EITHER ALONE OR IN CONJUNCTION WITH ANY OTHER
PERSON  ...  ." 

FN2  SECTION 302(G) OF THE REVENUE ACT OF 1924, WHICH WAS APPLICABLE
IN ACKERMAN, PROVIDED THAT THE ESTATE SHOULD INCLUDE ALL PROCEEDS
RECEIVABLE BY OTHER BENEFICIARIES "UNDER POLICIES TAKEN OUT BY THE
DECEDENT UPON HIS OWN LIFE."  43 STAT. 253, 304-305. 

FN3  26 CFR SEC. 20.2042-1(A)(1).  SEE ALSO TREAS. REG. 105 (1939
CODE), SEC. 81.25; TREAS.  REG. 80 (1934 ED.), ART. 25; TREAS. REG. 70
(1926 ED. AND 1929 ED.), ART. 25; TREAS. REG.  68 (1924 ED.), ART. 25;
TREAS. REG. 63 (1922 ED.), ART. 27; AND TREAS. REG. 37 (1921 ED.), ART.
32. 

FN4  SECTION 2042 WAS FIRST ENACTED AS SEC. 402(F) OF THE REVENUE ACT
OF 1918, C.18, 40 STAT. 1057, 1097-1098.  THIS SECTION WAS RE-ENACTED
IN SEC. 402(F) OF THE REVENUE ACT OF 1921, C. 136, 42 STAT. 227, 278
279; IN SEC. 302(G) OF THE REVENUE ACT OF 1924, C. 234, 43 STAT. 253,
304-305, AND THE REVENUE ACT OF 1926, C. 27, 44 STAT. 9, 70-71; AND IN
SEC. 811(G) OF THE INTERNAL REVENUE CODE OF 1939. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :
























WARREN TRADING POST CO. V. ARIZONA TAX COMMISSION 380 U.S. 685 


NO. 115.  ARGUED MARCH 9, 1965.  - DECIDED APRIL 29, 1965.  - 95 ARIZ.
110, 387 P.2D 809, REVERSED AND REMANDED. 


APPELLANT, THE OPERATOR OF A RETAIL TRADING POST ON THE NAVAJO INDIAN
RESERVATION UNDER A LICENSE GRANTED BY THE COMMISSIONER OF INDIAN
AFFAIRS PURSUANT TO 25 U.S.C. SEC. 261, CHALLENGED THE RIGHT OF ARIZONA
TO LEVY A TAX ON ITS INCOME FROM TRADING WITH RESERVATION INDIANS ON
THE RESERVATION.  THE STATE SUPREME COURT UPHELD THE TAX.  HELD:  SINCE
CONGRESS HAS BROADLY OCCUPIED THE FIELD OF TRADING WITH INDIANS ON
RESERVATIONS BY ALL-INCLUSIVE REGULATIONS AND STATUTES, THE STATES MAY
NOT IMPOSE ADDITIONAL BURDENS ON THE TRADERS OR THE INDIANS, AND
THEREFORE THIS TAX MAY NOT BE IMPOSED ON APPELLANT.  PP. 686-692. 

WARREN TRADING POST CO. V. ARIZONA TAX COMMISSION ET AL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ARIZONA HAS LEVIED A TAX OF 2% ON THE "GROSS PROCEEDS OF SALES, OR
GROSS INCOME" OF APPELLANT WARREN TRADING POST COMPANY, WHICH DOES A
RETAIL TRADING BUSINESS WITH INDIANS ON THE ARIZONA PART OF THE NAVAJO
INDIAN RESERVATION UNDER A LICENSE GRANTED BY THE UNITED STATES
COMMISSIONER OF INDIAN AFFAIRS PURSUANT TO 19 STAT. 200, 25 U.S.C. SEC.
261 (1958 ED.).  (FN1)  APPELLANT CLAIMED THAT AS APPLIED TO ITS INCOME
FROM TRADING WITH RESERVATION INDIANS ON THE RESERVATION THE STATE TAX
WAS INVALID AS (1) IN VIOLATION OF ART. I, SEC. 8, CL. 3, OF THE UNITED
STATES CONSTITUTION, WHICH PROVIDES THAT "CONGRESS SHALL HAVE POWER
...  TO REGULATE COMMERCE ...  WITH THE INDIAN TRIBES"; (2)
INCONSISTENT WITH THE COMPREHENSIVE CONGRESSIONAL PLAN, ENACTED UNDER
AUTHORITY OF ART. I, SEC. 8, TO REGULATE INDIAN TRADE AND TRADERS AND
TO HAVE INDIAN TRIBES ON RESERVATIONS GOVERN THEMSELVES.  THE STATE
SUPREME COURT REJECTED THESE CONTENTIONS AND UPHELD THE TAX, ONE
JUSTICE DISSENTING.  95 ARIZ. 110, 387 P.2D 809.  THE CASE IS PROPERLY
HERE ON APPEAL UNDER 28 U.S.C. SEC. 1257(2) (1958 ED.).  SINCE WE HOLD
THAT THIS STATE TAX CANNOT BE IMPOSED CONSISTENTLY WITH FEDERAL
STATUTES APPLICABLE TO THE INDIANS ON THE NAVAJO RESERVATION, WE FIND
IT UNNECESSARY TO CONSIDER WHETHER THE TAX IS ALSO BARRED BY THAT PART
OF THE COMMERCE CLAUSE GIVING CONGRESS POWER TO REGULATE COMMERCE WITH
THE INDIAN TRIBES. 

THE NAVAJO RESERVATION WAS SET APART AS A "PERMANENT HOME" FOR THE
NAVAJOS IN A TREATY MADE WITH THE "NAVAJO NATION OR TRIBE OF INDIANS"
ON JUNE 1, 1868.  (FN2)  LONG BEFORE THAT, IN FACT FROM THE VERY FIRST
DAYS OF OUR GOVERNMENT, THE FEDERAL GOVERNMENT HAD BEEN PERMITTING THE
INDIANS LARGELY TO GOVERN THEMSELVES, FREE FROM STATE INTERFERENCE,
(FN3) AND HAD EXERCISED THROUGH STATUTES AND TREATIES (FN4) A SWEEPING
AND DOMINANT CONTROL OVER PERSONS WHO WISHED TO TRADE WITH INDIANS AND
INDIAN TRIBES.  AS CHIEF JUSTICE JOHN MARSHALL RECOGNIZED IN WORCESTER
V. GEORGIA, 6 PET. 515, 556-557: 

"FROM THE COMMENCEMENT OF OUR GOVERNMENT, CONGRESS HAS PASSED ACTS TO
REGULATE TRADE AND INTERCOURSE WITH THE INDIANS; WHICH TREAT THEM AS
NATIONS, RESPECT THEIR RIGHTS, AND MANIFEST A FIRM PURPOSE TO AFFORD
THAT PROTECTION WHICH TREATIES STIPULATE." 

HE WENT ON TO SAY THAT: 

"THE TREATIES AND LAWS OF THE UNITED STATES CONTEMPLATE THE INDIAN
TERRITORY AS COMPLETELY SEPARATED FROM THAT OF THE STATES; AND PROVIDE
THAT ALL INTERCOURSE WITH THEM SHALL BE CARRIED ON EXCLUSIVELY BY THE
GOVERNMENT OF THE UNION."  ID., AT 557. 

SEE ALSO, E.G., UNITED STATES V. FORTY-THREE GALLONS OF WHISKEY, 93
U.S. 188.  IN THE VERY FIRST VOLUME OF THE FEDERAL STATUTES IS FOUND AN
ACT, PASSED IN 1790 BY THE FIRST CONGRESS, "TO REGULATE TRADE AND
INTERCOURSE WITH THE INDIAN TRIBES," REQUIRING THAT INDIAN TRADERS
OBTAIN A LICENSE FROM A FEDERAL OFFICIAL, AND SPECIFYING IN DETAIL THE
CONDITIONS ON WHICH SUCH LICENSES WOULD BE GRANTED.  (FN5) 

SUCH COMPREHENSIVE FEDERAL REGULATION OF INDIAN TRADERS HAS CONTINUED
FROM THAT DAY TO THIS.  (FN6)  EXISTING STATUTES MAKE SPECIFIC
RESTRICTIONS ON TRADE WITH THE INDIANS, (FN7) AND ONE OF THEM, PASSED
IN 1876 AND TRACING BACK TO COMPREHENSIVE ENACTMENTS OF 1802 (FN8) AND
1834 (FN9) PROVIDES THAT THE COMMISSIONER OF INDIAN AFFAIRS SHALL HAVE
"THE SOLE POWER AND AUTHORITY TO APPOINT TRADERS TO THE INDIAN TRIBES"
AND TO SPECIFY "THE KIND AND QUANTITY OF GOODS AND THE PRICES AT WHICH
SUCH GOODS SHALL BE SOLD TO THE INDIANS."  (FN10)  ACTING UNDER
AUTHORITY OF THIS STATUTE AND ONE ADDED IN 1901, (FN11) THE
COMMISSIONER HAS PROMULGATED DETAILED REGULATIONS PRESCRIBING IN THE
MOST MINUTE FASHION WHO MAY QUALIFY TO BE A TRADER AND HOW HE SHALL BE
LICENSED; PENALTIES FOR ACTING AS A TRADER WITHOUT A LICENSE;
CONDITIONS UNDER WHICH GOVERNMENT EMPLOYEES MAY TRADE WITH INDIANS;
ARTICLES THAT CANNOT BE SOLD TO INDIANS; AND CONDUCT FORBIDDEN ON A
LICENSED TRADER'S PREMISES.  (FN12)  HE HAS ORDERED THAT DETAILED
BUSINESS RECORDS BE KEPT AND THAT GOVERNMENT OFFICIALS BE ALLOWED TO
INSPECT THESE RECORDS TO MAKE SURE THAT PRICES CHARGED ARE FAIR AND
REASONABLE; THAT TRADERS PAY INDIANS IN MONEY; THAT BONDS BE EXECUTED
BY PROPOSED LICENSEES; AND THAT THE GOVERNING BODY OF AN INDIAN
RESERVATION MAY ASSESS FROM A TRADER "SUCH FEES, ETC., AS IT MAY DEEM
APPROPRIATE."  (FN13)  IT WAS UNDER THESE COMPREHENSIVE STATUTES AND
REGULATIONS THAT THE COMMISSIONER OF INDIAN AFFAIRS LICENSED APPELLANT
TO TRADE WITH THE INDIANS ON THE NAVAJO RESERVATION.  THESE APPARENTLY
ALL-INCLUSIVE REGULATIONS AND THE STATUTES AUTHORIZING THEM WOULD SEEM
IN THEMSELVES SUFFICIENT TO SHOW THAT CONGRESS HAS TAKEN THE BUSINESS
OF INDIAN TRADING ON RESERVATIONS SO FULLY IN HAND THAT NO ROOM REMAINS
FOR STATE LAWS IMPOSING ADDITIONAL BURDENS UPON TRADERS.  (FN14)  IN
FACT, THE SOLICITOR'S OFFICE OF THE DEPARTMENT OF THE INTERIOR IN 1940
(FN15) AND AGAIN IN 1943 (FN16) INTERPRETED THESE STATUTES TO BAR
STATES FROM TAXING FEDERALLY LICENSED INDIAN TRADERS ON THEIR SALES TO
RESERVATION INDIANS ON A RESERVATION.  WE THINK THOSE RULINGS WERE
CORRECT. 

CONGRESS HAS, SINCE THE CREATION OF THE NAVAJO RESERVATION NEARLY A
CENTURY AGO, LEFT THE INDIANS ON IT LARGELY FREE TO RUN THE RESERVATION
AND ITS AFFAIRS WITHOUT STATE CONTROL, A POLICY WHICH HAS AUTOMATICALLY
RELIEVED ARIZONA OF ALL BURDENS FOR CARRYING ON THOSE SAME
RESPONSIBILITIES.  AND IN COMPLIANCE WITH ITS TREATY OBLIGATIONS THE
FEDERAL GOVERNMENT HAS PROVIDED FOR ROADS, EDUCATION AND OTHER SERVICES
NEEDED BY THE INDIANS.  (FN17)  WE THINK THE ASSESSMENT AND COLLECTION
OF THIS TAX WOULD TO A SUBSTANTIAL EXTENT FRUSTRATE THE EVIDENT
CONGRESSIONAL PURPOSE OF ENSURING THAT NO BURDEN SHALL BE IMPOSED UPON
INDIAN TRADERS FOR TRADING WITH INDIANS ON RESERVATIONS EXCEPT AS
AUTHORIZED BY ACTS OF CONGRESS OR BY VALID REGULATIONS PROMULGATED
UNDER THOSE ACTS.  THIS STATE TAX ON GROSS INCOME WOULD PUT FINANCIAL
BURDENS ON APPELLANT OR THE INDIANS WITH WHOM IT DEALS IN ADDITION TO
THOSE CONGRESS OR THE TRIBES HAVE PRESCRIBED, AND COULD THEREBY DISTURB
AND DISARRANGE THE STATUTORY PLAN CONGRESS SET UP IN ORDER TO PROTECT
INDIANS AGAINST PRICES DEEMED UNFAIR OR UNREASONABLE BY THE INDIAN
COMMISSIONER.  AND SINCE FEDERAL LEGISLATION HAS LEFT THE STATE WITH NO
DUTIES OR RESPONSIBILITIES RESPECTING THE RESERVATION INDIANS, WE
CANNOT BELIEVE THAT CONGRESS INTENDED TO LEAVE TO THE STATE THE
PRIVILEGE OF LEVYING THIS TAX.  (FN18)  INSOFAR AS THEY ARE APPLIED TO
THIS FEDERALLY LICENSED INDIAN TRADER WITH RESPECT TO SALES MADE TO
RESERVATION INDIANS ON THE RESERVATION, THESE STATE LAWS IMPOSING TAXES
CANNOT STAND.  CF. RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218.  THE
JUDGMENT OF THE SUPREME COURT OF ARIZONA IS REVERSED AND THE CAUSE
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  ARIZ. REV. STAT. SECS. 42-1309, 42-1312.  THE TAX IS APPLICABLE
TO "EVERY PERSON ENGAGING OR CONTINUING WITHIN THIS STATE IN THE
BUSINESS OF SELLING ANY TANGIBLE PERSONAL PROPERTY WHATEVER AT RETAIL,"
WITH STATED EXCEPTIONS.  ARIZ. REV. STAT. SEC. 42-1312.  APPELLANT'S
CHALLENGE TO THESE STATUTES IS LIMITED TO THE STATE'S ATTEMPT TO APPLY
THEM TO GROSS INCOME FROM SALES MADE ON THE RESERVATION TO RESERVATION
INDIANS. 

FN2  15 STAT. 667. 

FN3  ARIZONA WAS ADMITTED TO THE UNION ON ITS AGREEMENT THAT: 

"THE PEOPLE INHABITING SAID PROPOSED STATE DO AGREE AND DECLARE THAT
THEY FOREVER DISCLAIM ALL RIGHT AND TITLE TO  ...  ALL LANDS LYING
WITHIN SAID BOUNDARIES OWNED OR HELD BY ANY INDIAN OR INDIAN TRIBES,
THE RIGHT OR TITLE TO WHICH SHALL HAVE BEEN ACQUIRED THROUGH OR FROM
THE UNITED STATES OR ANY PRIOR SOVEREIGNTY, AND THAT UNTIL THE TITLE OF
SUCH INDIAN OR INDIAN TRIBES SHALL HAVE BEEN EXTINGUISHED THE SAME
SHALL BE AND REMAIN SUBJECT TO THE DISPOSITION AND UNDER THE ABSOLUTE
JURISDICTION AND CONTROL OF THE CONGRESS OF THE UNITED STATES  ...  ." 
ACT OF JUNE 20, 1910, 36 STAT. 557, 569.  SEE ALSO ACT OF AUG. 21,
1911, 37 STAT. 39. 

CERTAIN STATE LAWS HAVE BEEN PERMITTED TO APPLY TO ACTIVITIES ON
INDIAN RESERVATIONS, WHERE THOSE LAWS ARE SPECIFICALLY AUTHORIZED BY
ACTS OF CONGRESS, OR WHERE THEY CLEARLY DO NOT INTERFERE WITH FEDERAL
POLICIES CONCERNING THE RESERVATIONS.  SEE ORGANIZED VILLAGE OF KAKE V.
EGAN, 369 U.S. 60, 72-75; WILLIAMS V. LEE, 358 U.S. 217, 219-221;
THOMAS V. GAY, 169 U.S. 264; UTAH & N.R. CO. V. FISHER, 116 U.S. 28, 31
32.  COMPARE, E.G., 18 U.S.C.  SEC. 1161 (1958 ED.)(PERMITTING
APPLICATION OF STATE LIQUOR LAW STANDARDS WITHIN AN INDIAN RESERVATION
UNDER CERTAIN CONDITIONS); 45 STAT. 1185, AS AMENDED, 25 U.S.C. SEC.
231 (1958 ED.)  (PERMITTING APPLICATION OF STATE HEALTH AND EDUCATION
LAWS WITH A RESERVATION UNDER CERTAIN CONDITIONS); 18 U.S.C. SEC. 1162
(1958 ED.)  AND 28 U.S.C. SEC. 1360 (1958 ED.)(RESPECTIVELY GRANTING
CERTAIN STATES CRIMINAL AND CIVIL JURISDICTION OVER OFFENSES AND CAUSES
OF ACTION INVOLVING INDIANS WITHIN SPECIFIED INDIAN RESERVATIONS). 

FN4  IN 1778, IN ITS FIRST TREATY WITH AN INDIAN TRIBE, THE UNITED
STATES PROMISED TO PROVIDE FOR THE DELAWARE NATION: 

"A WELL-REGULATED TRADE, UNDER THE CONDUCT OF AN INTELLIGENT, CANDID
AGENT, WITH AN ADEQUATE SALLERY, ONE MORE INFLUENCED BY THE LOVE OF HIS
COUNTRY, AND A CONSTANT ATTENTION TO THE DUTIES OF HIS DEPARTMENT BY
PROMOTING THE COMMON INTEREST, THEN THE SINISTER PURPOSES OF CONVERTING
AND BINDING ALL THE DUTIES OF HIS OFFICE TO HIS PRIVATE EMOLUMENT  ...
."  TREATY OF SEPT. 17, 1778, ART. V, 7 STAT. 13, 14. 

SIMILAR PROVISIONS WERE FOUND IN OTHER EARLY TREATIES, CONCLUDED
BEFORE THE FIRST CONGRESS LEGISLATED ON THE SUBJECT OF INDIAN TRADE. 
SEE UNITED STATES DEPARTMENT OF THE INTERIOR, FEDERAL INDIAN LAW 96
(HEREAFTER CITED AS FEDERAL INDIAN LAW).  IN 1871 CONGRESS FORBADE
FUTURE TREATIES WITH THE INDIAN TRIBES BUT LEFT THE OBLIGATIONS OF
EXISTING TREATIES UNIMPAIRED.  16 STAT.  544, 566, NOW 25 U.S.C. SEC.
71 (1958 ED.). 

FN5  ACT OF JULY 22, 1790, 1 STAT. 137. 

FN6  SEE GENERALLY FEDERAL INDIAN LAW 94-138, 373-381. 

FN7  E.G., 4 STAT. 729, NOW 25 U.S.C. SEC. 263 (1958 ED.)(EMPOWERING
THE PRESIDENT IN THE PUBLIC INTEREST TO FORBID INTRODUCTION OF ANY OR
ALL GOODS INTO THE TERRITORY OF A TRIBE, AND TO REVOKE AND REFUSE ALL
LICENSES TO TRADE WITH THAT TRIBE); 4 STAT. 729, AS AMENDED, NOW 25
U.S.C. SEC. 264 (1958 ED.)(ESTABLISHING PENALTIES FOR TRADING WITHOUT A
LICENSE AND FORBIDDING TRADERS TO HIRE WHITE PERSONS AS CLERKS UNLESS
LICENSED TO DO SO); 18 U.S.C. SEC. 3113 (1958 ED.)(FORBIDDING UNLAWFUL
INTRODUCTION OF LIQUOR INTO INDIAN COUNTRY AND PROVIDING FOR REVOCATION
OF THE LICENSE OF ANY TRADER VIOLATING THIS PROHIBITION). 

FN8  ACT OF MARCH 30, 1802, 2 STAT. 139. 

FN9  ACT OF JUNE 30, 1834, 4 STAT. 729. 

FN10  19 STAT. 200, 25 U.S.C. SEC. 261 (1958 ED.), PROVIDES: 

"THE COMMISSIONER OF INDIAN AFFAIRS SHALL HAVE THE SOLE POWER AND
AUTHORITY TO APPOINT TRADERS TO THE INDIAN TRIBES AND TO MAKE SUCH
RULES AND REGULATIONS AS HE MAY DEEM JUST AND PROPER SPECIFYING THE
KIND AND QUANTITY OF GOODS AND THE PRICES AT WHICH SUCH GOODS SHALL BE
SOLD TO THE INDIANS." 

FN11  31 STAT. 1066, AS AMENDED, 25 U.S.C. SEC. 262 (1958 ED.),
PROVIDES: 

"ANY PERSON DESIRING TO TRADE WITH THE INDIANS ON ANY INDIAN
RESERVATION SHALL, UPON ESTABLISHING THE FACT, TO THE SATISFACTION OF
THE COMMISSIONER OF INDIAN AFFAIRS, THAT HE IS A PROPER PERSON TO
ENGAGE IN SUCH TRADE, BE PERMITTED TO DO SO UNDER SUCH RULES AND
REGULATIONS AS THE COMMISSIONER OF INDIAN AFFAIRS MAY PRESCRIBE FOR THE
PROTECTION OF SAID INDIANS." 

FN12  25 CFR SECS. 251.9, 252.6, 251.3, 252.3, 251.5, 251.8, 251.18,
251.19, 251.21, 252.15. 

FN13  25 CFR SECS. 252.7, 251.22, 251.24, 251.10, 252.9, 252.27C. 
SEE GENERALLY 25 CFR SECS. 251, 252. 

FN14  THESE STATUTES AND REGULATIONS APPLY ONLY TO ACTIVITIES ON
RESERVATIONS.  SEE TAYLOR V. UNITED STATES, 44 F.2D 531 (C.A. 9TH
CIR.), CERT. DENIED, 283 U.S. 820; 57 I.D. 124, 125. 

FN15  57 I.D. 124. 

FN16  58 I.D. 562. 

FN17  SINCE 1950 CONGRESS HAS AUTHORIZED EXPENDITURE OF OVER
$100,000,000 AS PART OF AN EXTENSIVE PLAN TO REHABILITATE THE NAVAJO
AND HOPI TRIBES OF ARIZONA.  64 STAT. 44, AS AMENDED, 25 U.S.C. SECS.
631-640 (1958 ED.).  DETAILED ACCOUNTS OF THE WAYS IN WHICH THE FEDERAL
GOVERNMENT HAS AIDED AND SUPPORTED THE NAVAJOS AND OTHER TRIBES MAY BE
FOUND IN SECRETARY OF THE INTERIOR, ANNUAL REPORT, 1963, PP. 11-47;
ID., 1962, PP. 7-44; ID., 1961, PP. 277-318.  SEE ALSO FEDERAL INDIAN
LAW 268-306; YOUNG, THE NAVAJO YEARBOOK, REPORT NO. VIII, 1951-1961, A
DECADE OF PROGRESS (1961). 

FN18  THE BUCK ACT, NOW 4 U.S.C. SECS. 105-110 (1964 ED.), IN WHICH
CONGRESS PERMITTED STATES TO LEVY SALES OR USE TAXES WITHIN CERTAIN
FEDERAL AREAS, HAS BEEN INTERPRETED BY WHAT APPEARS TO BE THE ONLY
COURT TO CONSIDER THE QUESTION BEFORE THIS CASE, AND BY THE INTERIOR
DEPARTMENT, AS NOT APPLYING TO INDIAN RESERVATIONS.  YOUR FOOD STORES,
INC. V. VILLAGE OF ESPANOLA, 68 N.M. 327, 334, 361 P.2D 950, 955-956;
58 I.D. 562.  CF. 4 U.S.C.  SECS. 109 (1964 ED.), EXCEPTING TAXES ON
INDIANS FROM THE SCOPE OF THE ACT.  WE THINK THAT INTERPRETATION WAS
CORRECT.  SEE S. REP. NO. 1625, 76TH CONG., 3D SESS., 2, 3.  MOREOVER,
WE HOLD THAT INDIAN TRADERS TRADING ON A RESERVATION WITH RESERVATION
INDIANS ARE IMMUNE FROM A STATE TAX LIKE ARIZONA'S, NOT SIMPLY BECAUSE
THOSE ACTIVITIES TAKE PLACE ON A RESERVATION, BUT RATHER BECAUSE
CONGRESS IN THE EXERCISE OF ITS POWER GRANTED IN ART. I, SEC. 8, HAS
UNDERTAKEN TO REGULATE RESERVATION TRADING IN SUCH A COMPREHENSIVE WAY
THAT THERE IS NO ROOM FOR THE STATES TO LEGISLATE ON THE SUBJECT.  CF.
SURPLUS TRADING CO. V. COOK, 281 U.S. 647, 651.  EVEN ASSUMING THAT THE
ARIZONA TAX HERE IS OF A KIND TO WHICH THE BUCK ACT APPLIES, NOTHING
WHATEVER IN THAT ACT SUGGESTS TO US THAT CONGRESS MEANT TO GIVE STATES
NEW POWER TO TAX FEDERALLY LICENSED INDIAN TRADERS.  SEE 58 I.D. 562. 
..END :




ONE 1958 PLYMOUTH SEDAN V. PENNSYLVANIA 380 U.S. 693 


NO. 294.  ARGUED MARCH 31, 1965.  - DECIDED APRIL 29, 1965.  - 414 PA.
540, 201 A.2D 427, REVERSED AND REMANDED. 


STATE LIQUOR ENFORCEMENT OFFICERS, WITHOUT A WARRANT, STOPPED AND
SEARCHED AN AUTOMOBILE WHICH WAS "LOW IN THE REAR, QUITE LOW," AND
FOUND 31 CASES OF LIQUOR THEREIN.  THE STATE FILED A PETITION FOR
FORFEITURE OF THE CAR, WHICH THE TRIAL JUDGE, AFTER FINDING THAT THE
OFFICERS ACTED WITHOUT PROBABLE CAUSE, DISMISSED ON THE GROUND THAT THE
FORFEITURE DEPENDED ON THE ADMISSION OF ILLEGALLY OBTAINED EVIDENCE IN
VIOLATION OF THE FOURTH AMENDMENT AS APPLIED TO THE STATES BY THE
FOURTEENTH.  THE STATE SUPREME COURT, WITHOUT REVIEWING THE FINDING OF
LACK OF PROBABLE CAUSE, REVERSED ON THE BASIS THAT THE EXCLUSIONARY
RULE APPLIED ONLY TO CRIMINAL PROSECUTIONS AND NOT TO FORFEITURES,
WHICH IT HELD ARE CIVIL IN NATURE.  HELD: 

1.  EVIDENCE WHICH IS OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT
MAY NOT BE RELIED ON TO SUSTAIN A FORFEITURE.  BOYD V. UNITED STATES,
116 U.S. 616, FOLLOWED.  PP. 696-702. 

(A)  STATEMENTS IN CASES INVOLVING CONTRABAND PER SE, UNITED STATES
V. JEFFERS, 342 U.S. 48, AND TRUPIANO V. UNITED STATES, 334 U.S. 699,
DISTINGUISHED.  PP. 698-699. 

(B)  A FORFEITURE UNDER THE CIRCUMSTANCES PRESENT HERE IS A PENALTY
FOR A CRIMINAL OFFENSE AND CAN RESULT IN EVEN GREATER PUNISHMENT THAN
THE CRIMINAL PROSECUTION.  PP. 700-702. 

(2)  ON REMAND THE STATE SUPREME COURT MAY REVIEW THE TRIAL COURT'S
FINDING OF LACK OF PROBABLE CAUSE FOR THE SEARCH.  P. 702. 

ONE 1958 PLYMOUTH SEDAN V. PENNSYLVANIA. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

AT APPROXIMATELY 6:30 A.M. ON DECEMBER 16, 1960, TWO LAW ENFORCEMENT
OFFICERS OF THE PENNSYLVANIA LIQUOR CONTROL BOARD STATIONED NEAR
CAMDEN, NEW JERSEY, AT THE APPROACH TO THE BENJAMIN FRANKLIN BRIDGE,
OBSERVED A 1958 PLYMOUTH SEDAN BEARING PENNSYLVANIA LICENSE PLATES
PROCEEDING TOWARD THE BRIDGE IN THE DIRECTION OF PHILADELPHIA,
PENNSYLVANIA.  THE OFFICERS, NOTING THAT "THE CAR WAS LOW IN THE REAR,
QUITE LOW," FOLLOWED IT ACROSS THE BRIDGE INTO PHILADELPHIA.  THEY
STOPPED THE AUTOMOBILE A SHORT DISTANCE WITHIN THE CITY, IDENTIFIED
THEMSELVES AND QUESTIONED THE OWNER, GEORGE MCGONIGLE.  THE OFFICERS
THEN SEARCHED THE CAR AND, IN THE REAR AND THE TRUNK, FOUND 31 CASES OF
LIQUOR NOT BEARING PENNSYLVANIA TAX SEALS.  THE CAR AND LIQUOR WERE
SEIZED AND MCGONIGLE WAS ARRESTED AND CHARGED WITH VIOLATION OF
PENNSYLVANIA LAW.  (FN1)  THE OFFICERS DID NOT HAVE EITHER A SEARCH OR
ARREST WARRANT. 

PURSUANT TO A PENNSYLVANIA STATUTE (FN2) THE COMMONWEALTH FILED A
PETITION FOR FORFEITURE OF THE AUTOMOBILE.  (FN3)  AT THE HEARING
MCGONIGLE, BY TIMELY OBJECTION, SOUGHT DISMISSAL OF THE FORFEITURE
PETITION ON THE GROUND THAT THE FORFEITURE OF THE AUTOMOBILE DEPENDED
UPON THE ADMISSION OF EVIDENCE ILLEGALLY OBTAINED IN VIOLATION OF THE
FOURTH AMENDMENT TO THE CONSTITUTION AS APPLIED TO THE STATES BY THE
FOURTEENTH AMENDMENT.  THE TRIAL COURT SUSTAINED THIS POSITION AND
DISMISSED THE FORFEITURE PETITION.  IN DOING SO, THE TRIAL JUDGE MADE A
SPECIFIC FINDING THAT "THE SEIZURE WAS FOUNDED UPON EVIDENCE ILLEGALLY
OBTAINED, SINCE UNDER THE PARTICULAR CIRCUMSTANCES THE OFFICERS ACTED
WITHOUT PROBABLE CAUSE."  (FN4)  THE SUPERIOR COURT OF PENNSYLVANIA, AN
INTERMEDIATE APPELLATE COURT, BY A 4-TO-3 DECISION REVERSED THE ORDER
DISMISSING THE PETITION AND DIRECTED THAT THE AUTOMOBILE BE FORFEITED. 
199 PA.  SUPER.  428, 186 A.2D 52.  THE SUPREME COURT OF PENNSYLVANIA
AFFIRMED THE ORDER OF THE SUPERIOR COURT, ONE JUDGE DISSENTING.  414
PA. 540, 201 A.2D 427. 

THE BASIS OF THE PENNSYLVANIA SUPREME COURT'S DECISION WAS THAT THE
EXCLUSIONARY RULE, WHICH THIS COURT IN MAPP V. OHIO, 367 U.S. 643, 657,
HELD "IS AN ESSENTIAL PART OF BOTH THE FOURTH AND FOURTEENTH
AMENDMENTS," APPLIES ONLY TO CRIMINAL PROSECUTIONS AND IS NOT
APPLICABLE IN A FORFEITURE PROCEEDING WHICH THE PENNSYLVANIA COURT
DEEMED CIVIL IN NATURE.  IN LIGHT OF THIS DISPOSITION OF THE CASE, THE
STATE SUPREME COURT DID NOT REVIEW THE TRIAL COURT'S FINDING OF LACK OF
PROBABLE CAUSE, STATING: 

"THE THRUST OF THE ARGUMENTS, BOTH OF THE APPELLANT AND THE
COMMONWEALTH, IS DIRECTED TO THE VALIDITY AND PROPRIETY OF THE SEARCH
AND THE SUBSEQUENT SEIZURE BY THE OFFICERS OF THIS PLYMOUTH
AUTOMOBILE.  IN OUR VIEW, SUCH ARGUMENTS ARE BEYOND THE POINT.  BY
REASON OF THE NATURE OF THE PRESENT PROCEEDING, I.E., A FORFEITURE
PROCEDURE, WE CONSIDER IT UNNECESSARY TO DETERMINE THE PROPRIETY AND
VALIDITY OF THE SEARCH AND THE SEIZURE OF THIS AUTOMOBILE."  414 PA.,
AT 542; 201 A.2D, AT 429. 

WE GRANTED CERTIORARI, 379 U.S. 927, TO CONSIDER THE IMPORTANT
QUESTION OF WHETHER THE CONSTITUTIONAL EXCLUSIONARY RULE ENUNCIATED IN
WEEKS V. UNITED STATES, 232 U.S. 383, AND MAPP APPLIES TO FORFEITURE
PROCEEDINGS OF THE CHARACTER INVOLVED HERE - A QUESTION ON WHICH THERE
HAS BEEN CONFLICT IN BOTH STATE AND FEDERAL DECISIONS.  (FN5)  FOR THE
REASONS SET FORTH BELOW, WE HOLD THAT THE CONSTITUTIONAL EXCLUSIONARY
RULE DOES APPLY TO SUCH FORFEITURE PROCEEDINGS AND CONSEQUENTLY REVERSE
THE JUDGMENT OF THE PENNSYLVANIA SUPREME COURT. 

AS THIS COURT HAS ACKNOWLEDGED, "THE LEADING CASE ON THE SUBJECT OF
SEARCH AND SEIZURE IS BOYD V. UNITED STATES, 116 U.S. 616."  CARROLL V.
UNITED STATES, 267 U.S. 132, 147.  SEE MAPP V. OHIO, SUPRA, AT 646
647.  BOYD V. UNITED STATES, 116 U.S. 616, ITSELF WAS NOT A CRIMINAL
CASE BUT WAS A PROCEEDING BY THE UNITED STATES TO FORFEIT 35 CASES OF
PLATE GLASS WHICH HAD ALLEGEDLY BEEN IMPORTED WITHOUT PAYMENT OF THE
CUSTOMS DUTY.  THE DISTRICT JUDGE IN THE CASE ENTERED AN ORDER
COMPELLING THE OWNERS OF THE PLATE GLASS TO PRODUCE CERTAIN RECORDS
WHICH WOULD AID THE UNITED STATES IN PROVING ITS CASE FOR FORFEITURE. 
THE QUESTION BEFORE THE COURT IN BOYD WAS WHETHER THE COMPULSORY
PRODUCTION OF A MAN'S PRIVATE PAPERS FOR THEIR EVIDENTIARY USE AGAINST
HIM IN A PROCEEDING TO FORFEIT HIS PROPERTY FOR ALLEGED FRAUD AGAINST
THE REVENUE LAWS CONSTITUTED AN UNREASONABLE SEARCH AND SEIZURE WITHIN
THE MEANING OF THE FOURTH AMENDMENT OF THE CONSTITUTION.  IN HOLDING
THAT THE FOURTH AMENDMENT APPLIED AND BARRED SUCH ATTEMPTED SEIZURE,
MR. JUSTICE BRADLEY, FOR THE COURT STATED: 

"WE ARE ALSO CLEARLY OF OPINION THAT PROCEEDINGS INSTITUTED FOR THE
PURPOSE OF DECLARING THE FORFEITURE OF A MAN'S PROPERTY BY REASON OF
OFFENCES COMMITTED BY HIM, THOUGH THEY MAY BE CIVIL IN FORM, ARE IN
THEIR NATURE CRIMINAL.  IN THIS VERY CASE, THE GROUND OF FORFEITURE AS
DECLARED IN THE 12TH SECTION OF THE ACT OF 1874, ON WHICH THE
INFORMATION IS BASED, CONSISTS OF CERTAIN ACTS OF FRAUD COMMITTED
AGAINST THE PUBLIC REVENUE IN RELATION TO IMPORTED MERCHANDISE, WHICH
ARE MADE CRIMINAL BY THE STATUTE; AND IT IS DECLARED, THAT THE OFFENDER
SHALL BE FINED NOT EXCEEDING $5000 NOR LESS THAN $50, OR BE IMPRISONED
NOT EXCEEDING TWO YEARS, OR BOTH; AND IN ADDITION TO SUCH FINE SUCH
MERCHANDISE SHALL BE FORFEITED.  THESE ARE THE PENALTIES AFFIXED TO THE
CRIMINAL ACTS; THE FORFEITURE SOUGHT BY THIS SUIT BEING ONE OF THEM. 
IF AN INDICTMENT HAD BEEN PRESENTED AGAINST THE CLAIMANTS, UPON
CONVICTION THE FORFEITURE OF THE GOODS COULD HAVE BEEN INCLUDED IN THE
JUDGMENT.  IF THE GOVERNMENT PROSECUTOR ELECTS TO WAIVE AN INDICTMENT,
AND TO FILE A CIVIL INFORMATION AGAINST THE CLAIMANTS - THAT IS, CIVIL
IN FORM - CAN HE BY THIS DEVICE TAKE FROM THE PROCEEDING ITS CRIMINAL
ASPECT AND DEPRIVE THE CLAIMANTS OF THEIR IMMUNITIES AS CITIZENS, AND
EXTORT FROM THEM A PRODUCTION OF THEIR PRIVATE PAPERS, OR, AS AN
ALTERNATIVE, A CONFESSION OF GUILT?  THIS CANNOT BE.  THE INFORMATION,
THOUGH TECHNICALLY A CIVIL PROCEEDING, IS IN SUBSTANCE AND EFFECT A
CRIMINAL ONE  ... .  AS, THEREFORE, SUITS FOR PENALTIES AND FORFEITURES
INCURRED BY THE COMMISSION OF OFFENCES AGAINST THE LAW, ARE OF THIS
QUASI-CRIMINAL NATURE, WE THINK THAT THEY ARE WITHIN THE REASON OF
CRIMINAL PROCEEDINGS FOR ALL THE PURPOSES OF THE FOURTH AMENDMENT OF
THE CONSTITUTION  ...  ."  BOYD V. UNITED STATES, SUPRA, AT 633-634. 

THIS AUTHORITATIVE STATEMENT AND THE HOLDING BY THE COURT IN BOYD
THAT THE GOVERNMENT COULD NOT SEIZE EVIDENCE IN VIOLATION OF THE FOURTH
AMENDMENT FOR USE IN A FORFEITURE PROCEEDING WOULD SEEM TO BE
DISPOSITIVE OF THIS CASE.  THE COMMONWEALTH, HOWEVER, ARGUES THAT BOYD
IS FACTUALLY DISTINGUISHABLE AS IT INVOLVED A SUBPOENA SOUGHT BY THE
GOVERNMENT FOR THE PRODUCTION OF EVIDENCE WHEREAS THE ISSUE HERE IS THE
ADMISSIBILITY OF ILLEGALLY SEIZED EVIDENCE ALREADY IN THE GOVERNMENT'S
POSSESSION.  ALTHOUGH THERE IS THIS FACTUAL DIFFERENCE BETWEEN BOYD AND
THE CASE AT BAR, NEVERTHELESS THE BASIC HOLDING OF BOYD APPLIED WITH
EQUAL, IF NOT GREATER, FORCE TO THE CASE BEFORE US.  IN BOTH THE BOYD
SITUATION AND HERE THE ESSENTIAL QUESTION IS WHETHER EVIDENCE - IN BOYD
THE BOOKS AND RECORDS, HERE THE RESULTS OF THE SEARCH OF THE CAR - THE
OBTAINING OF WHICH VIOLATES THE FOURTH AMENDMENT MAY BE RELIED UPON TO
SUSTAIN A FORFEITURE.  BOYD HOLDS THAT IT MAY NOT. 

THE COMMONWEALTH FURTHER ARGUES THAT BOYD'S UNEQUIVOCAL STATEMENT
THAT THE FOURTH AMENDMENT APPLIES TO FORFEITURE PROCEEDINGS AS WELL AS
CRIMINAL PROSECUTIONS HAS BEEN UNDERMINED BY THE STATEMENTS OF THIS
COURT IN UNITED STATES V. JEFFERS, 342 U.S. 48, 54, AND TRUPIANO V.
UNITED STATES, 334 U.S. 699, 710.  JEFFERS AND TRUPIANO, UNLIKE BOYD,
WERE NOT FORFEITURE CASES.  THEY WERE FEDERAL CRIMINAL PROSECUTIONS. 
IN BOTH CASES THE COURT HELD THAT EVIDENCE SEIZED IN VIOLATION OF THE
FOURTH AMENDMENT WAS NOT ADMISSIBLE NOTWITHSTANDING THE FACT THAT THE
EVIDENCE INVOLVED WAS CONTRABAND.  BY WAY OF DICTUM, HOWEVER, SINCE THE
POINT WAS NOT BEFORE IT, THE COURT STATED IN THESE CASES THAT ITS
RULING THAT THE CONTRABAND WAS EXCLUDABLE AS ILLEGALLY SEIZED DID NOT
MEAN THAT THE GOVERNMENT WAS REQUIRED TO RETURN THE ILLEGALLY IMPORTED
NARCOTICS TO JEFFERS OR THE UNREGISTERED STILL, ALCOHOL AND MASH TO
TRUPIANO. 

THE NATURE OF THE CONTRABAND INVOLVED IN THESE CASES CLEARLY EXPLAINS
THESE STATEMENTS OF THE COURT.  BOTH TRUPIANO AND JEFFERS CONCERNED
OBJECTS THE POSSESSION OF WHICH, WITHOUT MORE, CONSTITUTES A CRIME. 
(FN6) THE REPOSSESSION OF SUCH PER SE CONTRABAND BY JEFFERS AND
TRUPIANO WOULD HAVE SUBJECTED THEM TO CRIMINAL PENALTIES.  THE RETURN
OF THE CONTRABAND WOULD CLEARLY HAVE FRUSTRATED THE EXPRESS PUBLIC
POLICY AGAINST THE POSSESSION OF SUCH OBJECTS.  SEE UNITED STATES V.
JEFFERS, SUPRA, AT 53-54. 

IT IS APPARENT THAT THE NATURE OF THE PROPERTY HERE, THOUGH TERMED
CONTRABAND BY PENNSYLVANIA, IS QUITE DIFFERENT.  THERE IS NOTHING EVEN
REMOTELY CRIMINAL IN POSSESSING AN AUTOMOBILE.  IT IS ONLY THE ALLEGED
USE TO WHICH THIS PARTICULAR AUTOMOBILE WAS PUT THAT SUBJECTS MR.
MCGONIGLE TO ITS POSSIBLE LOSS.  AND IT IS CONCEDED HERE THAT THE
COMMONWEALTH COULD NOT ESTABLISH AN ILLEGAL USE WITHOUT USING THE
EVIDENCE RESULTING FROM THE SEARCH WHICH IS CHALLENGED AS HAVING BEEN
IN VIOLATION OF THE CONSTITUTION.  FURTHERMORE, THE RETURN OF THE
AUTOMOBILE TO THE OWNER WOULD NOT SUBJECT HIM TO ANY POSSIBLE CRIMINAL
PENALTIES FOR POSSESSION OR FRUSTRATE ANY PUBLIC POLICY CONCERNING
AUTOMOBILES, AS AUTOMOBILES.  THIS DISTINCTION BETWEEN WHAT HAS BEEN
DESCRIBED AS CONTRABAND PER SE AND ONLY DERIVATIVE CONTRABAND HAS
INDEED BEEN RECOGNIZED BY PENNSYLVANIA ITSELF IN ITS REQUIREMENT OF
MANDATORY FORFEITURE OF ILLEGAL LIQUOR, AND STILLS, AND ONLY
DISCRETIONARY FORFEITURE OF SUCH THINGS AS AUTOMOBILES ILLEGALLY USED. 
SEE PURDON'S PA. STAT. ANN., TIT. 47, SEC. 6-602(E) (1964 CUM. SUPP.). 
WE, THEREFORE, DO NOT HAVE A CASE BEFORE US IN ANY WAY ANALOGOUS TO THE
CONTRABAND INVOLVED IN JEFFERS AND TRUPIANO AND THESE CASES CAN IN NO
WAY BE DEEMED TO IMPAIR THE CONTINUED VALIDITY OF BOYD WHICH, LIKE THIS
CASE, INVOLVED PROPERTY NOT INTRINSICALLY ILLEGAL IN CHARACTER.  (FN7) 

FINALLY AS MR. JUSTICE BRADLEY APTLY POINTED OUT IN BOYD, A
FORFEITURE PROCEEDING IS QUASI-CRIMINAL IN CHARACTER.  ITS OBJECT, LIKE
A CRIMINAL PROCEEDING, IS TO PENALIZE FOR THE COMMISSION OF AN OFFENSE
AGAINST THE LAW.  IN THIS CASE MCGONIGLE, THE DRIVER AND OWNER OF THE
AUTOMOBILE, WAS ARRESTED AND CHARGED WITH A CRIMINAL OFFENSE AGAINST
THE PENNSYLVANIA LIQUOR LAWS.  THE RECORD DOES NOT DISCLOSE WHICH
PARTICULAR OFFENSE OR OFFENSES HE WAS CHARGED WITH COMMITTING.  (FN8)
IF CONVICTED OF ANY ONE OF THE POSSIBLE OFFENSES INVOLVED, HOWEVER, HE
WOULD BE SUBJECT, IF A FIRST OFFENDER, TO A MINIMUM PENALTY OF A $100
FINE AND A MAXIMUM PENALTY OF A $500 FINE.  (FN9)  IN THIS FORFEITURE
PROCEEDING HE WAS SUBJECT TO THE LOSS OF HIS AUTOMOBILE, WHICH AT THE
TIME INVOLVED HAD AN ESTIMATED VALUE OF APPROXIMATELY $1,000, (FN10) A
HIGHER AMOUNT THAN THE MAXIMUM FINE IN THE CRIMINAL PROCEEDING.  IT
WOULD BE ANOMALOUS INDEED, UNDER THESE CIRCUMSTANCES, TO HOLD THAT IN
THE CRIMINAL PROCEEDING THE ILLEGALLY SEIZED EVIDENCE IS EXCLUDABLE,
WHILE IN THE FORFEITURE PROCEEDING, REQUIRING THE DETERMINATION THAT
THE CRIMINAL LAW HAS BEEN VIOLATED, THE SAME EVIDENCE WOULD BE
ADMISSIBLE.  (FN11)  THAT THE FORFEITURE IS CLEARLY A PENALTY FOR THE
CRIMINAL OFFENSE AND CAN RESULT IN EVEN GREATER PUNISHMENT THAN THE
CRIMINAL PROSECUTION HAS IN FACT BEEN RECOGNIZED BY THE PENNSYLVANIA
COURTS.  IN COMMONWEALTH V. ONE 1959 CHEVROLET IMPALA COUPE, INVOLVING
A FORFEITURE IN 1962, THE PENNSYLVANIA SUPERIOR COURT IN AFFIRMING THE
EXERCISE OF DISCRETION TO WAIVE A FORFEITURE FOLLOWING A CRIMINAL
PROSECUTION, STATED: 

"IT SEEMED TO THE COURT BELOW THAT TO MAKE THIS MAN PAY THE SUM OF
$500.00 IN FINES, TOGETHER WITH THE COSTS OF THE PROCEEDING AND THE
STORAGE COST FOR THE AUTOMOBILE, WAS SUFFICIENT PUNISHMENT UNDER ALL
THE CIRCUMSTANCES.  TO FORFEIT A 1959 CHEVROLET IMPALA COUPE IN
ADDITION TO THE ABOVE SEEMED TO THE COURT BELOW TO BE ENTIRELY OUT OF
PROPORTION TO THE CRIME INVOLVED.  WE CANNOT SAY THAT THE COURT BELOW
ABUSED ITS DISCRETION IN SO ACTING."  201 PA. SUPER.  145, 150, 191
A.2D 717, 719. 

IN SUM, WE CONCLUDE THAT THE NATURE OF A FORFEITURE PROCEEDING, SO
WELL DESCRIBED BY MR. JUSTICE BRADLEY IN BOYD, AND THE REASONS WHICH
LED THE COURT TO HOLD THAT THE EXCLUSIONARY RULE OF WEEKS V. UNITED
STATES, SUPRA, IS OBLIGATORY UPON THE STATES UNDER THE FOURTEENTH
AMENDMENT, SO WELL ARTICULATED BY MR. JUSTICE CLARK IN MAPP, SUPPORT
THE CONCLUSION THAT THE EXCLUSIONARY RULE IS APPLICABLE TO FORFEITURE
PROCEEDINGS SUCH AS THE ONE INVOLVED HERE.  THIS BEING THE CASE, THE
JUDGMENT OF THE PENNSYLVANIA SUPREME COURT MUST BE REVERSED.  OUR
HOLDING FREES THE PENNSYLVANIA COURT ON REMAND TO REVIEW THE TRIAL
COURT'S FINDING THAT THE OFFICIALS DID NOT IN THIS CASE HAVE PROBABLE
CAUSE FOR THE SEARCH INVOLVED, A QUESTION WHICH IT PREVIOUSLY DID NOT
CONSIDER NECESSARY TO DECIDE.  (FN12)    THE JUDGMENT OF THE SUPREME
COURT OF PENNSYLVANIA IS REVERSED AND THE CAUSE IS REMANDED FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SEE NOTE 9, INFRA, AND ACCOMPANYING TEXT. 

FN2  PURDON'S PA. STAT. ANN., TIT. 47, SEC. 6-601 (1964 CUM. SUPP.),
WHICH PROVIDES IN PERTINENT PART: 

"NO PROPERTY RIGHTS SHALL EXIST IN ANY LIQUOR, ALCOHOL OR MALT OR
BREWED BEVERAGE ILLEGALLY MANUFACTURED OR POSSESSED, OR IN ANY STILL,
EQUIPMENT, MATERIAL, UTENSIL, VEHICLE, BOAT, VESSEL, ANIMALS OR
AIRCRAFT USED IN THE ILLEGAL MANUFACTURE OR ILLEGAL TRANSPORTATION OF
LIQUOR, ALCOHOL OR MALT OR BREWED BEVERAGES, AND THE SAME SHALL BE
DEEMED CONTRABAND AND PROCEEDINGS FOR ITS FORFEITURE TO THE
COMMONWEALTH MAY, AT THE DISCRETION OF THE BOARD, BE INSTITUTED IN THE
MANNER HEREINAFTER PROVIDED." 

FN3  A SEPARATE PETITION WAS FILED FOR THE FORFEITURE OF THE LIQUOR
WHICH WAS UPHELD BY THE TRIAL COURT.  NO APPEAL WAS TAKEN FROM THIS
ORDER. 

FN4  THE TRIAL COURT'S DECISION IS UNREPORTED. 

FN5  SEE COMMONWEALTH V. ONE 1958 PLYMOUTH SEDAN, 414 PA. 540, 201
A.2D 427; BERKOWITZ V. UNITED STATES, 340 F.2D 168 (C.A. 1ST CIR.);
UNITED STATES V. $5,608.30 IN UNITED STATES COIN AND CURRENCY, 326 F.2D
359 (C.A. 7TH CIR.); UNITED STATES V. $1,058.00 IN UNITED STATES
CURRENCY, 323 F.2D 211 (C.A. 3D CIR.); UNITED STATES V. CAREY, 272 F.2D
492 (C.A. 5TH CIR.); UNITED STATES V. ONE 1956 FORD TUDOR SEDAN, 253
F.2D 725 (C.A. 4TH CIR.); UNITED STATES V. PHYSIC, 175 F.2D 338 (C.A.2D
CIR.); UNITED STATES V. BUTLER, 156 F.2D 897 (C.A. 10TH CIR.); UNITED
STATES V. ONE 1963 CADILLAC HARDTOP, 220 F. SUPP. 841 (D.C.E.D. WIS.).
SEE ALSO CLEARY V. BOLGER, 371 U.S. 392, 401, 403 (CONCURRING
OPINION). 

FN6  SEE, AS TO TRUPIANO, INTERNAL REVENUE CODE OF 1939, SECS.
2803(A), 2810(A), 53 STAT.  303, 308; AS TO JEFFERS, INTERNAL REVENUE
CODE OF 1939, SEC. 2553(A), 53 STAT. 271; NARCOTIC DRUGS IMPORT AND
EXPORT ACT, 42 STAT. 596, 21 U.S.C. SEC. 174 (1958 ED.). 

FN7  NOR HAS THE CONTINUED VALIDITY OF BOYD BEEN IN ANY WAY IMPAIRED
BY THE DECISIONS OF THIS COURT IN UNITED STATES V. ONE FORD COUPE
AUTOMOBILE, 272 U.S. 321, OR DODGE V. UNITED STATES, 272 U.S. 530.  THE
QUESTION INVOLVED IN BOTH OF THESE CASES WAS NOT THE INTRODUCTION OF
EVIDENCE SEIZED IN VIOLATION OF THE CONSTITUTION BUT THAT OF WHETHER
EVIDENCE SEIZED BY ONE WITHOUT STATUTORY AUTHORITY COULD BE USED WHEN
ITS SEIZURE WAS LATER RATIFIED BY AN OFFICIAL WITH STATUTORY
AUTHORITY.   INDEED IN DODGE V. UNITED STATES, SUPRA, AT 532, MR.
JUSTICE HOLMES, FOR THE COURT, EXPRESSLY RECOGNIZED THAT THE CASE DID
NOT INVOLVE EXCLUSION OF EVIDENCE OBTAINED BY AN UNLAWFUL SEARCH AND
SEIZURE AND STATED: 

"THE EXCLUSION OF EVIDENCE OBTAINED BY AN UNLAWFUL SEARCH AND SEIZURE
STANDS ON A DIFFERENT GROUND.  IF THE SEARCH AND SEIZURE ARE UNLAWFUL
AS INVADING PERSONAL RIGHTS SECURED BY THE CONSTITUTION THOSE RIGHTS
WOULD BE INFRINGED YET FURTHER IF THE EVIDENCE WERE ALLOWED TO BE
USED." 

FN8  UNDER PENNSYLVANIA LAW ON THE ALLEGED FACTS OF THIS CASE,
MCGONIGLE PRESUMABLY COULD HAVE BEEN CHARGED WITH VIOLATING ONE OR MORE
OF THE FOLLOWING SUBSECTIONS OF PURDON'S PA.  STAT. ANN., TIT. 47, SEC.
4-491:  (2) POSSESSION OR TRANSPORT OF LIQUOR THAT HAS NOT BEEN
PURCHASED FROM A PENNSYLVANIA LIQUOR STORE; (4) POSSESSION OF UNTAXED
LIQUOR; (11) ILLEGAL IMPORTATION OF LIQUOR INTO THE COMMONWEALTH. 

FN9  PURDON'S PA. STAT. ANN., TIT. 47, SEC. 4-494(A) (1964 CUM.
SUPP.) PROVIDES: 

"ANY PERSON WHO SHALL VIOLATE ANY OF THE PROVISIONS OF THIS ARTICLE,
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, SHALL BE GUILTY OF A
MISDEMEANOR AND, UPON CONVICTION THEREOF, SHALL BE SENTENCED TO PAY A
FINE OF NOT LESS THAN ONE HUNDRED DOLLARS ($100), NOR MORE THAN FIVE
HUNDRED DOLLARS ($500), AND ON FAILURE TO PAY SUCH FINE, TO
IMPRISONMENT FOR NOT LESS THAN ONE MONTH, NOR MORE THAN THREE MONTHS,
AND FOR ANY SUBSEQUENT OFFENSE, SHALL BE SENTENCED TO PAY A FINE NOT
LESS THAN THREE HUNDRED DOLLARS ($300), NOR MORE THAN FIVE HUNDRED
DOLLARS ($500), AND TO UNDERGO IMPRISONMENT FOR A PERIOD NOT LESS THAN
THREE MONTHS, NOR MORE THAN ONE YEAR." 

FN10  SEE NATIONAL MARKET REPORTS, INC., RED BOOK, JAN. 1-FEB.  14,
1961, REGION A, 114. 

FN11  THIS COURT IN BOYD V. UNITED STATES, SUPRA, AT 638, REJECTED
ANY ARGUMENT THAT THE TECHNICAL CHARACTER OF A FORFEITURE AS AN IN REM
PROCEEDING AGAINST THE GOODS HAD ANY EFFECT ON THE RIGHT OF THE OWNER
OF THE GOODS TO ASSERT AS A DEFENSE VIOLATIONS OF HIS CONSTITUTIONAL
RIGHTS.  THE COURT STATED: 

"ALTHOUGH THE OWNER OF GOODS, SOUGHT TO BE FORFEITED BY A PROCEEDING
IN REM, IS NOT THE NOMINAL PARTY, HE IS, NEVERTHELESS, THE SUBSTANTIAL
PARTY TO THE SUIT; HE CERTAINLY IS SO, AFTER MAKING CLAIM AND DEFENCE;
AND, IN A CASE LIKE THE PRESENT, HE IS ENTITLED TO ALL THE PRIVILEGES
WHICH APPERTAIN TO A PERSON WHO IS PROSECUTED FOR A FORFEITURE OF HIS
PROPERTY BY REASON OF COMMITTING A CRIMINAL OFFENCE." 

FN12  THE APPLICABLE STANDARD OF WHAT CONSTITUTES PROBABLE CAUSE, AS
STATED BY MR. JUSTICE CLARK FOR THE COURT IN KER V. CALIFORNIA, 374
U.S. 23, 33, "IS THE SAME UNDER THE FOURTH AND FOURTEENTH AMENDMENTS." 
CF. BECK V. OHIO, 379 U.S. 89; AGUILAR V. TEXAS, 378 U.S. 108; HENRY V.
UNITED STATES, 361 U.S. 98; CARROLL V. UNITED STATES, 267 U.S. 132, 153
154. 

MR. JUSTICE BLACK, CONCURRING. 

THE LANGUAGE OF THE FOURTH AMENDMENT FORBIDS "UNREASONABLE SEARCHES
AND SEIZURES" BUT IT DOES NOT EXPRESSLY OR BY IMPLICATION PROVIDE THAT
EVIDENCE SECURED IN SUCH A WAY CANNOT BE USED IN A PROSECUTION AGAINST
AN ACCUSED.  CONGRESS COULD, OF COURSE, PASS A LAW TO PRECLUDE THE USE
OF EVIDENCE SO SECURED IN THE FEDERAL COURTS, BUT I DO NOT BELIEVE THIS
COURT OR ANY OTHER HAS CONSTITUTIONAL POWER TO PASS SUCH A LAW ITSELF. 
SEE WOLF V. COLORADO, 338 U.S. 25, 39 (CONCURRING OPINION).  FOR THESE
REASONS I CANNOT AGREE THAT BECAUSE WE OURSELVES MIGHT BELIEVE THE
PRACTICE OF OBTAINING EVIDENCE IN THAT MANNER "SHOCKS THE CONSCIENCE"
OR IS "SHABBY" OR "ARBITRARY," WE ARE COMMANDED OR EVEN AUTHORIZED BY
THE CONSTITUTION TO PREVENT ITS USE AS EVIDENCE.  THAT SEEMS TO ME TO
BE AMENDING THE CONSTITUTION, WHICH IS THE BUSINESS OF THE PEOPLE, NOT
INTERPRETING IT, WHICH IS THE BUSINESS OF THE COURTS.  BUT THE FIFTH
AMENDMENT DOES SPECIFICALLY PROVIDE THAT "NO PERSON ... SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF," AND
THIS COURT HELD IN BOYD V. UNITED STATES, 116 U.S. 616, 634-635, THAT
"A COMPULSORY PRODUCTION OF THE PRIVATE BOOKS AND PAPERS OF THE OWNER
OF GOODS SOUGHT TO BE FORFEITED IN  ...  A SUIT IS COMPELLING HIM TO BE
A WITNESS AGAINST HIMSELF, WITHIN THE MEANING OF THE FIFTH AMENDMENT TO
THE CONSTITUTION, AND IS THE EQUIVALENT OF A SEARCH AND SEIZURE - AND
AN UNREASONABLE SEARCH AND SEIZURE - WITHIN THE MEANING OF THE FOURTH
AMENDMENT."  BOYD THEREFORE STANDS FOR THE CONSTITUTIONAL PRINCIPLE
THAT EVIDENCE SECURED BY UNREASONABLE SEARCH AND SEIZURE IS COMPELLED
EVIDENCE, AND IS THEREFORE BARRED FROM USE IN CRIMINAL CASES BY THE
FIFTH AMENDMENT'S PROVISION THAT "NO PERSON  ...  SHALL BE COMPELLED IN
ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF  ...  ."  SEE ROCHIN
V. CALIFORNIA, 342 U.S. 165, 174 (CONCURRING OPINION).  THE COURT IN
BOYD THUS BASED ITS EXCLUSION OF UNLAWFULLY SEIZED EVIDENCE SQUARELY ON
THE SPECIFIC PROHIBITIONS OF THE FOURTH AND FIFTH AMENDMENTS, AND NOT
MERELY ON THE PERSONAL PREDILECTIONS OF JUDGES AGAINST SUCH USE. 

THIS COURT IN MAPP V. OHIO, 367 U.S. 643, 646, RECOGNIZED AS THE
COURT HAD IN BOYD THAT "THE FOURTH AND FIFTH AMENDMENTS RUN ALMOST INTO
EACH OTHER."  116 U.S., AT 630.  AT THE VERY OUTSET OF ITS OPINION IN
MAPP THIS COURT RELIED ON AND QUOTED AT LENGTH FROM THE OPINION IN THE
BOYD CASE, WHICH HAD RELIED ON THE FOURTH AND FIFTH AMENDMENTS TOGETHER
TO FORBID THE USE IN COURT OF EVIDENCE OBTAINED THROUGH AN UNREASONABLE
SEARCH OR SEIZURE.  367 U.S., AT 646-647.  USE OF SUCH EVIDENCE, THE
COURT SAID IN MAPP, WOULD BE "TANTAMOUNT TO COERCED TESTIMONY."  367
U.S., AT 656.  AND WE SAID LAST TERM IN MALLOY V. HOGAN, 378 U.S. 1,
8: 

"MAPP HELD THAT THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF
INCRIMINATION IMPLEMENTED THE FOURTH AMENDMENT IN SUCH CASES, AND THAT
THE TWO GUARANTEES OF PERSONAL SECURITY CONJOINED IN THE FOURTEENTH
AMENDMENT TO MAKE THE EXCLUSIONARY RULE OBLIGATORY ON THE STATES.  WE
RELIED UPON THE GREAT CASE OF BOYD V. UNITED STATES, 116 U.S. 616  ...
." 

IT WAS BECAUSE OF THE COURT'S RELIANCE ON THE BOYD DOCTRINE - WHICH
HELD THAT THE FOURTH AND FIFTH AMENDMENTS TOGETHER BARRED USE OF
UNREASONABLY SEIZED EVIDENCE - THAT I JOINED THE COURT'S OPINION IN
MAPP.  SEE 367 U.S. 643, 661 (CONCURRING OPINION).  AND FOR THAT SAME
REASON I AGREE WITH THE COURT TODAY THAT THE FOURTH AMENDMENT'S
PROTECTION AGAINST UNLAWFUL SEARCH AND SEIZURE AND THE FIFTH
AMENDMENT'S PROTECTION AGAINST COMPELLED TESTIMONY APPLY IN FORFEITURE
PROCEEDINGS LIKE THE ONE HERE.  THIS WAS THE HOLDING IN BOYD, WHICH
ITSELF INVOLVED A FORFEITURE PROCEEDING, AND I WOULD FOLLOW IT IN
FORFEITURE PROCEEDINGS AS WELL AS IN CRIMINAL CASES.  IN DOING SO, I
RECOGNIZE THAT THIS INTERPRETATION WAS REACHED IN BOYD ON THE PRINCIPLE
THAT "CONSTITUTIONAL PROVISIONS FOR THE SECURITY OF PERSON AND PROPERTY
SHOULD BE LIBERALLY CONSTRUED."  116 U.S., AT 635.  BUT THAT
INTERPRETIVE PRINCIPLE, I THINK, IS A DESIRABLE ONE IF OUR CONSTITUTION
IS TO BE GIVEN ITS PROPER PLACE IN OUR GOVERNMENT. 

I ALSO AGREE WITH THE COURT THAT OUR REMAND EXPRESSES NO VIEW AS TO
WHETHER THE TRIAL COURT WAS CORRECT IN ITS RULING ON THE ISSUE OF
PROBABLE CAUSE, AND THAT THE SUPREME COURT OF PENNSYLVANIA IS FREE ON
REMAND TO REVIEW THE TRIAL COURT'S FINDING, AND THAT OF COURSE, AS
DECLARED IN MAPP, THE STANDARD OF PROBABLE CAUSE IS THE SAME IN THE
STATE COURTS AS IN THE FEDERAL COURTS. 
..END :



FEDERAL TRADE COMMISSION V. CONSOLIDATED FOODS 380 U.S. 592 


NO. 422.  ARGUED MARCH 10-11, 1965 - DECIDED APRIL 28, 1965 - 329 F.2D
623, REVERSED. 


RESPONDENT, A LARGE, DIVERSIFIED COMPANY, WHICH OWNS FOOD PROCESSING
PLANTS AND A NETWORK OF WHOLESALE AND RETAIL FOOD STORES, IN 1951
ACQUIRED GENTRY, INC., A MANUFACTURER OF DEHYDRATED ONION AND GARLIC. 
GENTRY, BEFORE THE MERGER, HAD ABOUT 32% OF THE SALES OF THOSE
PRODUCTS, AND, WITH ITS CHIEF COMPETITOR, ACCOUNTED FOR ABOUT 90% OF
THE TOTAL INDUSTRY SALES.  BY 1958, IN AN EXPANDING MARKET, GENTRY HAD
35% OF THE SALES AND THE COMBINED SHARE WITH ITS PRINCIPAL COMPETITOR
REMAINED ABOUT 90%.  AFTER THE MERGER RESPONDENT ATTEMPTED TO INDUCE
RECIPROCAL BUYING OF GENTRY'S PRODUCTS BY RESPONDENT'S SUPPLIERS.  THE
FEDERAL TRADE COMMISSION HELD THAT THE ACQUISITION VIOLATED SEC. 7 OF
THE CLAYTON ACT, AS THE OPPORTUNITY FOR RECIPROCAL BUYING IN THIS
OLIGOPOLISTIC INDUSTRY CREATED A PROBABILITY OF A SUBSTANTIAL LESSENING
OF COMPETITION AND ORDERED DIVESTITURE.  THE COURT OF APPEALS REVERSED,
FINDING NO SUBSTANTIAL IMPACT ON THE MARKET IN THE LIGHT OF TEN YEARS
OF POST-ACQUISITION EXPERIENCE.  HELD: 

1.  POST-ACQUISITION EVIDENCE OF THE EFFECT OF THE MERGER UPON
COMPETITION IS ENTITLED TO CONSIDERATION IN DETERMINING WHETHER A
MERGER VIOLATES SEC. 7, BUT IT MUST NOT BE GIVEN CONCLUSIVE WEIGHT OR
ALLOWED TO OVERRIDE ALL PROBABILITIES.  P. 598. 

2.  THE FINDING BY THE COMMISSION OF THE PROBABILITY OF RECIPROCAL
BUYING LEADING TO A LESSENING OF COMPETITION IN THE INSTANT CASE WAS
SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 600. 

3.  RECIPROCAL BUYING IS AN ANTICOMPETITIVE DEVICE CONDEMNED BY SEC. 7
OF THE CLAYTON ACT.  PP. 594-595. 

FEDERAL TRADE COMMISSION V. CONSOLIDATED FOODS CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED INVOLVES AN IMPORTANT CONSTRUCTION AND
APPLICATION OF SEC. 7 OF THE CLAYTON ACT, (FN1) 38 STAT. 731, AS
AMENDED, 15 U.S.C. SEC. 18.  CONSOLIDATED FOODS CORP. - WHICH OWNS FOOD
PROCESSING PLANTS AND A NETWORK OF WHOLESALE AND RETAIL FOOD STORES -
ACQUIRED GENTRY, INC., IN 1951.  GENTRY MANUFACTURES PRINCIPALLY
DEHYDRATED ONION AND GARLIC.  THE FEDERAL TRADE COMMISSION HELD THAT
THE ACQUISITION VIOLATED SEC. 7 BECAUSE IT GAVE RESPONDENT THE
ADVANTAGE OF A MIXED THREAT AND LURE OF RECIPROCAL BUYING IN ITS
COMPETITION FOR BUSINESS AND "THE POWER TO FORECLOSE COMPETITION FROM A
SUBSTANTIAL SHARE OF THE MARKETS FOR DEHYDRATED ONION AND GARLIC."  IT
CONCLUDED, IN OTHER WORDS, THAT THE EFFECT OF THE ACQUISITION "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION" WITHIN THE MEANING OF SEC. 7, AND
IT ORDERED DIVESTITURE AND GAVE OTHER RELIEF.  - F.T.C. - , - . THE
COURT OF APPEALS, RELYING MAINLY ON 10 YEARS OF POST-ACQUISITION
EXPERIENCE, HELD THAT THE COMMISSION HAD FAILED TO SHOW A PROBABILITY
THAT THE ACQUISITION WOULD SUBSTANTIALLY LESSEN COMPETITION.  329 F.2D
623.  THE CASE IS HERE ON CERTIORARI.  379 U.S. 912. 

WE HOLD AT THE OUTSET THAT THE "RECIPROCITY" MADE POSSIBLE BY SUCH AN
ACQUISITION IS ONE OF THE CONGERIES OF ANTICOMPETITIVE PRACTICES AT
WHICH THE ANTITRUST LAWS ARE AIMED.  THE PRACTICE RESULTS IN "AN
IRRELEVANT AND ALIEN FACTOR," -  F.T.C., P. - , INTRUDING INTO THE
CHOICE AMONG COMPETING PRODUCTS, CREATING AT THE LEAST "A PRIORITY ON
THE BUSINESS AT EQUAL PRICES."  INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392, 396-397; NORTHERN PAC. R. CO. V. UNITED STATES,
356 U.S. 1, 3, 6, 12.  RECIPROCAL TRADING MAY ENSUE NOT FROM
BLUDGEONING OR COERCION BUT FROM MORE SUBTLE ARRANGEMENTS.  A
THREATENED WITHDRAWAL OF ORDERS IF PRODUCTS OF AN AFFILIATE CEASE BEING
BOUGHT, AS WELL AS A CONDITIONING OF FUTURE PURCHASES ON THE RECEIPT OF
ORDERS FOR PRODUCTS OF THAT AFFILIATE, IS AN ANTICOMPETITIVE PRACTICE. 
(FN2)  SECTION 7 OF THE CLAYTON ACT IS CONCERNED "WITH PROBABILITIES,
NOT CERTAINTIES."  BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 323;
UNITED STATES V. PHILADELPHIA NAT. BANK, 374 U.S. 321, 362. 
RECIPROCITY IN TRADING AS A RESULT OF AN ACQUISITION VIOLATES SEC. 7,
IF THE PROBABILITY OF A LESSENING OF COMPETITION IS SHOWN.  WE TURN
THEN TO THAT, THE PRINCIPAL, ASPECT OF THE PRESENT CASE. 

CONSOLIDATED IS A SUBSTANTIAL PURCHASER OF THE PRODUCTS OF FOOD
PROCESSORS WHO IN TURN PURCHASE DEHYDRATED ONION AND GARLIC FOR USE IN
PREPARING AND PACKAGING THEIR FOOD.  GENTRY, WHICH AS NOTED IS
PRINCIPALLY ENGAGED IN THE MANUFACTURE OF DEHYDRATED ONION AND GARLIC,
HAD IN 1950, IMMEDIATELY PRIOR TO ITS ACQUISITION BY CONSOLIDATED,
ABOUT 32% OF THE TOTAL SALES OF THE DEHYDRATED GARLIC AND ONION
INDUSTRY AND, TOGETHER WITH ITS PRINCIPAL COMPETITOR, BASIC VEGETABLE
PRODUCTS, INC., ACCOUNTED FOR ALMOST 90% OF THE TOTAL INDUSTRY SALES. 
THE REMAINING 10% WAS DIVIDED BETWEEN TWO OTHER FIRMS.  BY 1958 THE
TOTAL INDUSTRY OUTPUT OF BOTH PRODUCTS HAD DOUBLED, GENTRY'S SHARE
RISING TO 35% AND THE COMBINED SHARE OF GENTRY AND BASIC REMAINING AT
ABOUT 90%.  (FN3) 

AFTER THE ACQUISITION CONSOLIDATED (THOUGH LATER DISCLAIMING
ADHERENCE TO ANY POLICY OF RECIPROCITY) DID UNDERTAKE TO ASSIST GENTRY
IN SELLING.  AN OFFICIAL OF CONSOLIDATED WROTE AS FOLLOWS TO ITS
DISTRIBUTING DIVISIONS: 

"OFTENTIMES, IT IS A GREAT ADVANTAGE TO KNOW WHEN YOU ARE CALLING ON
A PROSPECT, WHETHER OR NOT THAT PROSPECT IS A SUPPLIER OF SOMEONE
WITHIN YOUR OWN ORGANIZATION.  EVERYONE BELIEVES IN RECIPROCITY
PROVIDING ALL THINGS ARE EQUAL. 

"ATTACHED IS A LIST OF PROSPECTS FOR OUR GENTRY PRODUCTS.  WE WOULD
LIKE TO HAVE YOU INDICATE ON THE LIST WHETHER OR NOT YOU ARE PURCHASING
ANY OF YOUR SUPPLIES FROM THEM.  IF SO, INDICATE WHETHER YOUR PURCHASES
ARE RELATIVELY LARGE, SMALL OR INSIGNIFICANT  ...  . 

     *         *         *         *      * 

"WILL YOU PLEASE REFER THE LIST TO THE PROPER PARTY IN YOUR
ORGANIZATION  ...  .  IF YOU HAVE ANY SPECIAL SUGGESTIONS, AS TO HOW
YOU COULD BE HELPFUL IN PROPERLY PRESENTING GENTRY TO ANY OF THOSE
LISTED, IT WILL BE APPRECIATED." 

FOOD PROCESSORS WHO SOLD TO CONSOLIDATED STATED THEY WOULD GIVE THEIR
ONION AND GARLIC BUSINESS TO GENTRY FOR RECIPROCITY REASONS IF IT COULD
MEET THE PRICE AND QUALITY OF ITS COMPETITORS' PRODUCTS.  TYPICAL IS A
LETTER FROM ARMOUR AND CO.: 

"I CAN ASSURE YOU THAT IT IS THE DESIRE OF OUR PEOPLE TO RECIPROCATE
AND COOPERATE WITH YOU IN ANY WAY WE CAN IN LINE WITH GOOD BUSINESS
PRACTICES, AND I AM SURE THAT IF OUR QUALITY OBSTACLES CAN BE OVERCOME,
YOUR QUOTATIONS WILL RECEIVE FAVORABLE CONSIDERATION.  WE VALUE OUR
RELATIONSHIP WITH YOU VERY HIGHLY AND ARE DISAPPOINTED THAT WE HAVE
BEEN UNABLE LATELY TO RECIPROCATE FOR YOUR FINE COOPERATION ON ARMOUR
PANTRY SHELF MEATS." 

SOME SUPPLIERS RESPONDED AND GAVE RECIPROCAL ORDERS.  SOME WHO FIRST
GAVE GENEROUS ORDERS LATER REDUCED THEM OR ABANDONED THE PRACTICE.  IT
IS IMPOSSIBLE TO RECREATE THE PRECISE ANATOMY OF THE MARKET
ARRANGEMENTS FOLLOWING THE ACQUISITION, THOUGH RESPONDENT OFFERS A
FACTUAL BRIEF SEEKING TO PROVE THAT "RECIPROCITY" EITHER FAILED OR WAS
NOT A MAJOR FACTOR IN THE POST-ACQUISITION HISTORY. 

THE COMMISSION FOUND, HOWEVER, THAT "MERELY AS A RESULT OF ITS
CONNECTION WITH CONSOLIDATED, AND WITHOUT ANY ACTION ON THE LATTER'S
PART, GENTRY WOULD HAVE AN UNFAIR ADVANTAGE OVER COMPETITORS ENABLING
IT TO MAKE SALES THAT OTHERWISE MIGHT NOT HAVE BEEN MADE." 

AND THE COMMISSION CONCLUDED: 

"WITH TWO FIRMS ACCOUNTING FOR BETTER THAN 85% OF BOTH PRODUCT LINES
FOR ELEVEN SUCCESSIVE YEARS, MAXIMUM CONCENTRATION SHORT OF MONOPOLY
HAS ALREADY BEEN ACHIEVED.  IF IT IS DESIRABLE TO PREVENT A TREND
TOWARD OLIGOPOLY IT IS A FORTIORI DESIRABLE TO REMOVE, SO FAR AS
POSSIBLE, OBSTACLES TO THE CREATION OF GENUINELY COMPETITIVE CONDITIONS
IN AN OLIGOPOLISTIC INDUSTRY.  RESPONDENT'S RECIPROCAL BUYING POWER,
OBTAINED THROUGH ACQUISITION OF GENTRY, IS JUST SUCH AN ANTICOMPETITIVE
OBSTACLE. 

"THIS CONCLUSION IS BUTTRESSED BY THE PECULIAR NATURE OF THE
DEHYDRATED ONION AND GARLIC INDUSTRY.   IN THE FIRST PLACE, THE RECORD
SHOWS THAT GENTRY'S LEADING COMPETITOR, BASIC VEGETABLE PRODUCTS, INC.,
HAS BEEN THE INNOVATOR AND LEADER IN THE FIELD.  GENTRY HAS RECENTLY
MADE TECHNICAL STRIDES NARROWING, ALTHOUGH PROBABLY NOT CLOSING, THE
GAP BETWEEN THEM.  THERE IS ALSO EVIDENCE THAT THE THIRD FIRM,
PUCCINELLI PACKING CO., IS NOT ONLY MUCH SMALLER - COMMANDING ONLY
ABOUT 10% OF EACH PRODUCT MARKET - BUT IS CONSIDERED BY MANY BUYERS TO
OFFER AN INFERIOR PRODUCT AND INFERIOR SERVICE."  - F.T.C., P. - . 

THE COURT OF APPEALS, ON THE OTHER HAND, GAVE POST-ACQUISITION
EVIDENCE ALMOST CONCLUSIVE WEIGHT.  IT POINTED OUT THAT, WHILE GENTRY'S
SHARE OF THE DEHYDRATED ONION MARKET INCREASED BY SOME 7%, ITS SHARE OF
THE DEHYDRATED GARLIC MARKET DECREASED 12%.  329 F.2D, P. 626.  IT ALSO
RELIED ON APPARENTLY UNSUCCESSFUL ATTEMPTS AT RECIPROCAL BUYING.  IBID.
THE COURT OF APPEALS CONCLUDED THAT "PROBABILITY CAN BEST BE GAUGED BY
WHAT THE PAST HAS TAUGHT."  ID., P. 627. 

THE COURT OF APPEALS WAS NOT IN ERROR IN CONSIDERING THE POST
ACQUISITION EVIDENCE IN THIS CASE.  SEE UNITED STATES V. DU PONT & CO.,
353 U.S. 586, 597 ET SEQ., 602 ET SEQ. BUT WE THINK IT GAVE TOO MUCH
WEIGHT TO IT.  CF. UNITED STATES V. CONTINENTAL CAN CO., 378 U.S. 441,
463.  NO GROUP ACQUIRING A COMPANY WITH RECIPROCAL BUYING OPPORTUNITIES
IS ENTITLED TO A "FREE TRIAL" PERIOD.  TO GIVE IT SUCH WOULD BE TO
DISTORT THE SCHEME OF SEC. 7.  THE "MERE POSSIBILITY" OF THE PROHIBITED
RESTRAINT IS NOT ENOUGH.  (UNITED STATES V. DU PONT & CO., SUPRA, P.
598.)  PROBABILITY OF THE PROSCRIBED EVIL IS REQUIRED, AS WE HAVE
NOTED.  IF THE POST-ACQUISITION EVIDENCE WERE GIVEN CONCLUSIVE WEIGHT
OR ALLOWED TO OVERRIDE ALL PROBABILITIES, THEN ACQUISITIONS WOULD GO
FORWARD WILLY-NILLY, THE PARTIES BIDING THEIR TIME UNTIL RECIPROCITY
WAS ALLOWED FULLY TO BLOOM.  IT IS, OF COURSE, TRUE THAT POST
ACQUISITION CONDUCT MAY AMOUNT TO A VIOLATION OF SEC. 7 EVEN THOUGH
THERE IS NO EVIDENCE TO ESTABLISH PROBABILITY IN LIMINE.  SEE UNITED
STATES V. DU PONT & CO., SUPRA, PP. 597-598.  BUT THE FORCE OF SEC. 7
IS STILL IN PROBABILITIES, NOT IN WHAT LATER TRANSPIRED.  THAT MUST
NECESSARILY BE THE CASE, FOR ONCE THE TWO COMPANIES ARE UNITED NO ONE
KNOWS WHAT THE FATE OF THE ACQUIRED COMPANY AND ITS COMPETITORS WOULD
HAVE BEEN BUT FOR THE MERGER. 

MOREOVER, THE POST-ACQUISITION EVIDENCE HERE TENDS TO CONFIRM, RATHER
THAN CAST DOUBT UPON, THE PROBABLE ANTICOMPETITIVE EFFECT WHICH THE
COMMISSION FOUND THE MERGER WOULD HAVE.  THE COMMISSION FOUND THAT
BASIC'S PRODUCT WAS SUPERIOR TO GENTRY'S - AS GENTRY'S PRESIDENT FREELY
AND REPEATEDLY ADMITTED.  YET GENTRY, IN A RAPIDLY EXPANDING MARKET,
WAS ABLE TO INCREASE ITS SHARE OF ONION SALES BY 7% AND TO HOLD ITS
LOSSES IN GARLIC TO A 12% DECREASE.  THUS THE COMMISSION WAS SURELY ON
SAFE GROUND IN REACHING THE FOLLOWING CONCLUSION: 

"IF RECIPROCAL BUYING CREATES FOR GENTRY A PROTECTED MARKET, WHICH
OTHERS CANNOT PENETRATE DESPITE SUPERIORITY OF PRICE, QUALITY, OR
SERVICE, COMPETITION IS LESSENED WHETHER OR NOT GENTRY CAN EXPAND ITS
MARKET SHARE.  IT IS FOR THIS REASON THAT WE REJECT RESPONDENT'S
ARGUMENT THAT THE DECLINE IN ITS SHARE OF THE GARLIC MARKET PROVES THE
INEFFECTIVENESS OF RECIPROCITY.  WE DO NOT KNOW THAT ITS SHARE WOULD
NOT HAVE FALLEN STILL FARTHER, HAD IT NOT BEEN FOR THE INFLUENCE OF
RECIPROCAL BUYING.  THIS LOSS OF SALES FAILS TO REFUTE THE LIKELIHOOD
THAT CONSOLIDATED'S RECIPROCITY POWER, WHICH IT HAS SHOWN A WILLINGNESS
TO EXPLOIT TO THE FULL, WILL NOT IMMUNIZE A SUBSTANTIAL SEGMENT OF THE
GARLIC MARKET FROM NORMAL QUALITY, PRICE, AND SERVICE COMPETITION."  -
F.T.C., P. - .  (FN4) 

BUT THE COURT OF APPEALS IGNORED THE COMMISSION'S FINDINGS AS TO THE
INFERIORITY OF GENTRY'S PRODUCT; INDEED AT ONE POINT IT EVEN SUPPLANTED
THOSE FINDINGS WITH ITS OWN CONCLUSION THAT GENTRY'S ONIONS WERE
SUPERIOR: 

"CONSOLIDATED'S GENTRY DIVISION IN THE YEARS FOLLOWING THE
ACQUISITION, DURING WHICH TIME IT IMPROVED ITS ONION PROCESSING
EQUIPMENT TO ELIMINATE A PROBLEM ARISING FROM THE PRESENCE OF WOOD
SPLINTERS AND ACHIEVED A PRODUCT OF HIGHER QUALITY THAN THAT OF ITS
COMPETITORS, INCREASED ITS SHARE OF THE RAPIDLY EXPANDING MARKET BY
ONLY SOME 7% WITH RESPECT TO DEHYDRATED ONION  ...  ."  329 F.2D, P.
626. 

BUT THE COMMISSION'S CONTRARY CONCLUSION WAS UNQUESTIONABLY BASED ON
SUBSTANTIAL EVIDENCE, AS THE FOLLOWING EXCERPT FROM THE TESTIMONY OF
GENTRY'S PRESIDENT PARTICULARLY INDICATES: 

"Q. YOU MENTIONED THE FACT, DR. PRATER, THAT GENTRY HAD A REPUTATION
OF BEING SECOND TO BASIC IN QUALITY.  WAS ONE OF THE FACTORS INVOLVED
IN THE QUALITY COMPETITION THE WOOD SPLINTER PROBLEM? 

"A.  YES, THE WOOD SPLINTER PROBLEM HAS BEEN A PROBLEM IN THE
DEHYDRATION INDUSTRY FOR MANY YEARS.   BASIC EXPLOITED THIS
EXTENSIVELY, AND SOLVED IT BY IMPROVEMENTS IN PRODUCTION TECHNIQUES IN
THE USE, OR BY THE USE OF BETTER METHODS, AND BY USING, INSTEAD OF WOOD
TRAYS, TRAYS OF ALUMINUM PLASTIC GLASS FIBERS.  WE MET THIS COMPETITION
PARTIALLY BY THE IMPROVEMENT OF OUR PRODUCTION TECHNIQUES AND
INSTALLATION OF CONTINUOUS CONVEYOR DEHYDRATORS." 

WE DO NOT GO SO FAR AS TO SAY THAT ANY ACQUISITION, NO MATTER HOW
SMALL, VIOLATES SEC. 7 IF THERE IS A PROBABILITY OF RECIPROCAL BUYING. 
SOME SITUATIONS MAY AMOUNT ONLY TO DE MINIMIS.  BUT WHERE, AS HERE, THE
ACQUISITION IS OF A COMPANY THAT COMMANDS A SUBSTANTIAL SHARE OF A
MARKET, A FINDING OF PROBABILITY OF RECIPROCAL BUYING BY THE
COMMISSION, WHOSE EXPERTISE THE CONGRESS TRUSTS, SHOULD BE HONORED, IF
THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT IT. 

THE EVIDENCE IS IN OUR VIEW PLAINLY SUBSTANTIAL.  RECIPROCITY WAS
TRIED OVER AND AGAIN AND IT SOMETIMES WORKED.  THE INDUSTRY STRUCTURE
WAS PECULIAR, BASIC BEING THE LEADER WITH GENTRY CLOSING THE GAP. 
MOREOVER THERE IS EVIDENCE, AS THE COMMISSION FOUND, "THAT MANY BUYERS
HAVE DETERMINED THAT THEIR SOURCE OF SUPPLY MAY BEST BE PROTECTED BY A
POLICY OF BUYING FROM TWO SUPPLIERS."  WHEN RECIPROCAL BUYING - OR THE
INDUCEMENT OF IT - IS ADDED, THE COMMISSION OBSERVED: 

"BUYERS ARE LIKELY TO LEAN TOWARD BASIC ON THE GROUND OF QUALITY,
BUT, IN SEEKING A SECOND, PROTECTIVE SUPPLY CHANNEL, TO PURCHASE FROM
GENTRY IN THE BELIEF THAT THIS WILL FURTHER THEIR SALES TO
CONSOLIDATED.  NOT ONLY DOES GENTRY THUS OBTAIN SALES THAT MIGHT
OTHERWISE GO TO BASIC OR PUCCINELLI, BUT THE TWO-FIRM OLIGOPOLY
STRUCTURE OF THE INDUSTRY IS STRENGTHENED AND SOLIDIFIED AND NEW ENTRY
BY OTHERS IS DISCOURAGED."  - F.T.C., P. - . 

WE CONCLUDE THAT THERE IS SUBSTANTIAL EVIDENCE TO SUSTAIN THAT
CONCLUSION AND THAT THE ORDER OF THE COMMISSION SHOULD NOT HAVE BEEN
DENIED ENFORCEMENT.  THE JUDGMENT OF THE COURT OF APPEALS IS
ACCORDINGLY REVERSED.    FN1  SECTION 7 READS IN PERTINENT PART AS
FOLLOWS: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 
15 U.S.C. SEC. 18. 

FN2 EDWARDS, CONGLOMERATE BIGNESS AS A SOURCE OF POWER, IN NAT. BUR. 
ECO.  RESEARCH, BUSINESS CONCENTRATION AND PRICE POLICY (1955), 331, P.
342: 

"WHERE LARGE AND POWERFUL CONCERNS ENCOUNTER EACH OTHER AS SELLER AND
BUYER, THERE IS SOMETIMES A RECIPROCAL EXCHANGE OF FAVORS, BY WHICH
EACH OF THE GREAT ENTERPRISES STRENGTHENS THE OTHER. 

"THE MOST COMMON FORM OF SUCH A RELATIONSHIP IS PROBABLY RECIPROCAL
BUYING.  A RECIPROCAL BUYING ARRANGEMENT MAY ARISE EITHER THROUGH
FORMAL CONTRACT OR THROUGH AN INFORMAL UNDERSTANDING THAT MAY BE
SCARCELY DISTINGUISHABLE FROM A MERE POLICY OF CULTIVATING THE GOOD
WILL OF A LARGE CUSTOMER.  THE ESSENCE OF THE ARRANGEMENT IS THE
WILLINGNESS OF EACH COMPANY TO BUY FROM THE OTHER, CONDITIONED UPON THE
EXPECTATION THAT THE OTHER COMPANY WILL MAKE RECIPROCAL PURCHASES.  THE
GOODS BOUGHT ARE TYPICALLY DISSIMILAR IN KIND, AND IN THE USUAL CASE
COULD BE OBTAINED FROM OTHER SOURCES ON TERMS WHICH, ASIDE FROM THE
RECIPROCAL PURCHASES, WOULD BE NO LESS ADVANTAGEOUS.  WHERE SUCH A
RELATIONSHIP IS WELL ESTABLISHED, IT PREVENTS THE COMPETITORS OF EACH
COMPANY FROM SELLING TO THE OTHER COMPANY, AND AFFORDS TO EACH COMPANY
WHATEVER INCREASE OF SIZE AND STRENGTH CAN BE DERIVED FROM AN ASSURED
PLACE AS SUPPLIER TO THE OTHER." 

AND SEE STOCKING AND MUELLER, BUSINESS RECIPROCITY AND THE SIZE OF
FIRMS, 30 J. BUS.  U. CHI.  73, 75-77 (1957); AMMER, REALISTIC
RECIPROCITY, 40 HARV. BUS.  REV.  NO. 1, 116 (1962); HAUSMAN,
RECIPROCAL DEALING AND THE ANTITRUST LAWS, 77 HARV. L. REV. 873
(1964). 

FOR A DISCUSSION OF THE CONGLOMERATE ACQUISITION (THE TYPE INVOLVED
IN THE PRESENT CASE) SEE REPORT, FEDERAL TRADE COMMISSION ON THE MERGER
MOVEMENT (A SUMMARY REPORT, 1948), P. 59 ET SEQ. 

FN3  AS STATED BY THE COURT OF APPEALS: 

"IMMEDIATELY PRIOR TO THE CONSOLIDATED-GENTRY MERGER, BASIC ACCOUNTED
FOR 60% AND GENTRY 28% OF DEHYDRATED ONION SALES.  BY 1958, THESE
FIGURES WERE 57% AND 35%, RESPECTIVELY.  IN DEHYDRATED GARLIC SALES,
BASIC HAD 36% OF THE MARKET IN 1950 AND 50% IN 1958, WHILE GENTRY'S
SHARES WERE 51% AND 39% FOR THE SAME YEARS."  329 F.2D, P. 625. 

FN4  THE LAST THREE SENTENCES WERE A FOOTNOTE TO THE FIRST SENTENCE. 

MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT. 

HAD THE COMMISSION'S COMPLAINT BEEN GROUNDED ON SEC. 5 OF THE FEDERAL
TRADE COMMISSION ACT, IT SEEMS MANIFEST TO ME THAT NO CASE WOULD HAVE
BEEN MADE OUT ON THIS RECORD.  BUT GIVEN THE AMBULATORY USE OF SEC. 7
OF THE CLAYTON ACT SANCTIONED BY THE COURT IN THE UNITED STATES V. DU
PONT & CO., 353 U.S. 586, I CONCUR IN THE JUDGMENT. 

I DO SO, HOWEVER, UPON THE PREMISES STATED IN THE CONCURRING OPINION
OF MY BROTHER STEWART, POST, P. 602, BUT WITH ONE RESERVATION.  TO THE
EXTENT THAT ANYTHING IN HIS OPINION MIGHT BE TAKEN AS DRAWING ON
EVIDENCE UPON WHICH THE COMMISSION INDICATED NO RELIANCE, I COULD NOT
SUBSCRIBE TO THAT APPROACH.  THIS COURT MUST REVIEW ADMINISTRATIVE
FINDINGS AS THEY ARE MADE BY THE AGENCY CONCERNED, AND IF THE EVIDENCE
WILL NOT SUPPORT THE FINDINGS AND THEORY UPON WHICH THE AGENCY ACTED,
AN AFFIRMANCE OF THE AGENCY'S ORDER CANNOT PROPERLY REST UPON A
REASSESSMENT OF THE RECORD BY US.  SEE SECURITIES & EXCHANGE COMM'N V.
CHENERY CORP., 332 U.S. 194, 196; LABOR BOARD V. METROPOLITAN LIFE INS.
CO., ANTE, PP. 438, 443-444.  HOWEVER, SINCE BOTH SIDES AGREE THAT
"CONGLOMERATE" MERGERS AND RECIPROCAL BUYING ARE WITHIN THE PURVIEW OF
SEC. 7, I THINK THE COMMISSION'S ORDER IS SUPPORTABLE, THOUGH BARELY
SO, WITHIN THE CONFINES OF THE EVIDENCE UPON WHICH IT APPARENTLY
RELIED. 

BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, FORECLOSES ANY
CONTENTION THAT THE "MARKET AFFECTED" WAS NOT SUBSTANTIAL ENOUGH TO
BRING SEC. 7 INTO PLAY.  IN THIS COURT CONSOLIDATED HAS PITCHED ITS
CASE ON THE PROPOSITION THAT IT USED TO THE FULL WHATEVER POWER IT
ACQUIRED AS A RESULT OF THE MERGER TO BRING ABOUT RECIPROCAL BUYING. 
THE COMMISSION FOUND ONLY SEVEN INSTANCES OF SUCCESSFUL EFFORTS BY
CONSOLIDATED TO PRESSURE SUPPLIERS TO BUY FROM GENTRY.  IF IN FACT
THESE FEW INSTANCES HAD REPRESENTED THE FULL MEASURE OF CONSOLIDATED'S
ABILITY TO INDUCE PURCHASING FROM GENTRY, THEY WOULD FOR ME BE
INSUFFICIENT TO CARRY THE DAY FOR THE COMMISSION'S ORDER, AND I WOULD
VOTE TO AFFIRM.  WHILE I CANNOT SUBSCRIBE TO THE UNDISCRIMINATING USE
MADE IN THE COURT'S OPINION OF THE BUYING STATISTICS, I THINK THERE WAS
ENOUGH IN THESE SEVEN INSTANCES - FOR EXAMPLE, THE PHILLIPS PACKING
COMPANY, J.J. GIELOW & SONS, ILLINOIS MEAT COMPANY, AND MORGAN PACKING
COMPANY EPISODES - FOR THE COMMISSION JUSTIFIABLY TO FIND THAT
CONSOLIDATED HAD NOT USED ALL THE RECIPROCAL BUYING LEVERAGE IT COULD
MUSTER; THE COMMISSION, THEREFORE, COULD REASONABLY CONCLUDE THAT THE
PROBABLE EFFECT OF THE GENTRY ACQUISITION WOULD BE SUBSTANTIALLY TO
LESSEN COMPETITION IN THE RELEVANT MARKET. 

ON THIS BASIS I CONCUR IN THE RESULT REACHED BY THE COURT. 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT. 

THE FEDERAL TRADE COMMISSION, IN INVALIDATING A MERGER BETWEEN
CONSOLIDATED FOODS AND GENTRY, INC., HAS ESPOUSED A NOVEL THEORY TO
BRING THE FACTS OF THIS CASE WITHIN THE SCOPE OF SEC. 7 OF THE CLAYTON
ACT.  ITS RESOLUTION OF THE ISSUE HAS BEEN MUCH DEBATED AND MUCH
DISPUTED.  (FN1)  THE COURT OF APPEALS HAS DISAGREED WITH THE
COMMISSION'S APPRAISAL OF THE FACTS IN THIS CASE AND WITH ITS
CONCLUSIONS CONCERNING THE SEC. 7 IMPLICATIONS OF RECIPROCITY.  OTHER
CASES ARE BEING HELD AWAITING CLARIFICATION FROM THIS COURT.  (FN2)  WE
MUST DECIDE THE APPLICABILITY OF THE ACT TO THE FACTS OF THIS CASE, BUT
WE SHOULD ALSO PROVIDE GUIDANCE TO THE COMMISSION AND TO THE COURTS
WHICH WILL HAVE TO GRAPPLE IN THE FUTURE WITH THE POTENTIALITIES OF
RECIPROCAL BUYING IN SEC. 7 CASES.  WHILE I AGREE WITH THE RESULT THAT
THE COURT HAS REACHED, I AM PERSUADED TO FILE THIS SEPARATE STATEMENT
OF MY VIEWS REGARDING THE ISSUES INVOLVED. 

CLEARLY THE OPPORTUNITY FOR RECIPROCITY IS NOT ALONE ENOUGH TO
INVALIDATE A MERGER UNDER SEC. 7.  THE CLAYTON ACT WAS NOT PASSED TO
OUTLAW DIVERSIFICATION.  YET LARGE SCALE DIVERSITY OF INDUSTRIAL
INTERESTS ALMOST ALWAYS PRESENTS THE POSSIBILITY OF SOME RECIPROCAL
RELATIONSHIPS.  OFTEN THE PURPOSE OF DIVERSIFICATION IS TO ACQUIRE
COMPANIES WHOSE PRESENT MANAGEMENT CAN BENEFIT FROM THE TECHNICAL
SKILLS AND SALES ACUMEN OF THE ACQUIRING CORPORATION.  WITHOUT MORE,
SEC. 7 OF THE CLAYTON ACT DOES NOT PROHIBIT MERGERS WHOSE SOLE EFFECT
IS TO INTRODUCE INTO AN ARENA OF "SOFT" COMPETITION THE EXPERIENCE AND
SKILLS OF A MORE AGGRESSIVE ORGANIZATION. 

IT OBVIOUSLY REQUIRES MORE THAN THIS KIND OF BARE POTENTIAL FOR
RECIPROCAL BUYING TO BRING A MERGER WITHIN THE BAN OF SEC. 7.  BEFORE A
MERGER MAY BE PROPERLY OUTLAWED UNDER SEC. 7 ON THE BASIS SOLELY OF
RECIPROCAL BUYING POTENTIALS, THE LAW REQUIRES A MORE CLOSELY TEXTURED
ECONOMIC ANALYSIS.  THE COURT SUMMARIZES THE "SUBSTANTIAL" EVIDENCE
BEFORE THE COMMISSION AS FOLLOWS: 

"RECIPROCITY WAS TRIED OVER AND AGAIN AND IT SOMETIMES WORKED.  THE
INDUSTRY STRUCTURE WAS PECULIAR, BASIC BEING THE LEADER WITH GENTRY
CLOSING THE GAP.  MOREOVER THERE IS EVIDENCE, AS THE COMMISSION FOUND,
'THAT MANY BUYERS HAVE DETERMINED THAT THEIR SOURCE OF SUPPLY MAY BEST
BE PROTECTED BY A POLICY OF BUYING FROM TWO SUPPLIERS.'  WHEN
RECIPROCAL BUYING - OR THE INDUCEMENT OF IT - IS ADDED, THE COMMISSION
OBSERVED:  '  ...  THE TWO-FIRM OLIGOPOLY STRUCTURE OF THE INDUSTRY IS
STRENGTHENED AND SOLIDIFIED AND NEW ENTRY BY OTHERS IS DISCOURAGED.'" 

I CANNOT AGREE THAT THESE ELEMENTS, SINGLY OR TOGETHER, ARE
SUFFICIENT TO MAKE UNLAWFUL THE MERGER NEGOTIATED BY CONSOLIDATED AND
GENTRY.  CERTAINLY THE MERE EFFORT AT RECIPROCITY CANNOT BE THE BASIS
FOR FINDING THE PROBABILITY OF A SIGNIFICANT ALTERATION IN THE MARKET
STRUCTURE.  SECTION 7 DOES NOT PUNISH INTENT.  NO MATTER HOW BENT ON
RECIPROCITY CONSOLIDATED MIGHT HAVE BEEN, IF ITS ACTIVITIES WOULD NOT
HAVE THE REQUISITE PROBABLE IMPACT ON COMPETITION, IT CANNOT BE HELD TO
HAVE VIOLATED THIS LAW.  AND, I THINK, IT IS NOT ENOUGH TO SAY THAT THE
MERGER IS ILLEGAL MERELY BECAUSE THE RECIPROCITY ATTEMPTS "SOMETIMES
WORKED."  IF THE OPPORTUNITY FOR RECIPROCITY ITSELF IS NOT A VIOLATION
OF THE ACT WHEN THE MERGER OCCURS, THEN SOME STANDARD MUST BE
ESTABLISHED FOR DETERMINING HOW EFFECTIVE RECIPROCITY MUST BE BEFORE
THE MERGER IS SUBJECT TO INVALIDATION.  NOR DO I THINK THAT ILLEGALITY
OF THIS MERGER CAN BE RESTED UPON THE FACT THAT "THE INDUSTRY STRUCTURE
WAS PECULIAR, BASIC BEING THE LEADER WITH GENTRY CLOSING THE GAP." 
THERE IS EVIDENCE THAT IN THE YEARS FOLLOWING 1951, WHEN THE MERGER
TOOK PLACE, INCREASED EMPHASIS WAS PLACED ON SOLVING TECHNICAL PROBLEMS
WHICH HAD PREVENTED SOME PROCESSORS FROM RELYING ON DEHYDRATED, RATHER
THAN RAW, ONIONS.  THE 1950'S WERE A TIME OF FLUX FOR THE INDUSTRY. 
BASIC WAS SOMETIMES THE INNOVATOR OF TECHNOLOGICAL CHANGE LEADING TO
INCREASED SALES; SOMETIMES GENTRY HAD THE UPPER HAND.  IT IS POSSIBLE
THAT THIS SHIFT TO MORE INTENSIVE COMPETITION WAS CONNECTED WITH THE
MERGER.  FACED WITH A NEW COMPETITIVE SITUATION, BASIC MAY HAVE
DETERMINED TO SOLVE QUALITY CONTROL PROBLEMS WHICH HAD LONG BEEN
DORMANT.  INDEED, THE EVIDENCE SEEMS TO SHOW THAT, AFTER THE
ACQUISITION, THE INDUSTRY REFLECTED THE SALUTARY QUALITIES NORMALLY
ASSOCIATED WITH FREE COMPETITION.  OVERALL, BOTH BASIC AND GENTRY WERE
FURNISHING A BETTER PRODUCT AT THE END OF THIS PERIOD THAN AT THE
BEGINNING.  IT IS TRUE THAT THE INDUSTRY HAD OLIGOPOLISTIC FEATURES,
BUT THERE IS NO EVIDENCE TO INDICATE THAT BARRIERS TO ENTRY WERE
PARTICULARLY SEVERE.  (FN3)  AND GENTRY, WHILE IT WAS "CLOSING THE GAP"
WITH REGARD TO DEHYDRATED ONIONS, WAS FALLING EVEN FARTHER BEHIND BASIC
IN THE SALES OF DEHYDRATED GARLIC.  FINALLY, I CAN ATTACH NO
SIGNIFICANCE TO THE FACT THAT PROCESSORS, SEEKING A SECOND SOURCE OF
SUPPLY, NORMALLY RELIED ON GENTRY RATHER THAN PUCCINELLI.  THAT FACT
CAN REST ON SO MANY ALTERNATIVE HYPOTHESES THAT IT IS PERSUASIVE AS TO
NONE.  (FN4) 

THE TOUCHSTONE OF SEC 7 IS THE PROBABILITY THAT COMPETITION WILL BE
LESSENED.  BUT BEFORE A COURT TAKES THE DRASTIC STEP OF ORDERING
DIVESTITURE, THE EVIDENCE MUST BE CLEAR THAT SUCH A PROBABILITY
EXISTS.  THE ACT DOES NOT REQUIRE THAT THERE BE A CERTAINTY OF
ANTICOMPETITIVE EFFECT.  BUT THAT DOES NOT MEAN THAT THE COURTS OR THE
COMMISSION CAN RELY ON SLIPSHOD INFORMATION CONFUSINGLY PRESENTED AND
AMBIGUOUS IN ITS IMPLICATIONS.  THE LAW DOES NOT REQUIRE PROOF THAT
COMPETITION CERTAINLY WILL BE LESSENED BY THE MERGER.  BUT THE RECORD
SHOULD BE CLEAR AND CONVINCING THAT THE REQUISITE PROBABILITY IS
PRESENT. 

TO DETERMINE THAT PROBABILITY, THE COURTS AND THE COMMISSION SHOULD
RELY ON THE BEST INFORMATION AVAILABLE, WHETHER IT IS AN EXAMINATION OF
THE MARKET STRUCTURE BEFORE THE MERGER HAS TAKEN PLACE, OR FACTS
CONCERNING THE CHANGES IN THE MARKET AFTER THE MERGER HAS BEEN
CONSUMMATED.  FOR THAT REASON, I DIFFER WITH THE COURT IN ITS
ASSESSMENT OF THE WEIGHT TO BE ACCORDED POST-ACQUISITION EVIDENCE. 
THAT EVIDENCE IS THE BEST EVIDENCE AVAILABLE TO DETERMINE WHETHER THE
MERGER WILL DISTORT MARKET FORCES IN THE DEHYDRATED ONION AND GARLIC
INDUSTRY.  THE COURT OF APPEALS, IN MY VIEW, WAS NOT WRONG BECAUSE IT
"GAVE TOO MUCH WEIGHT" TO THE POST-ACQUISITION EVIDENCE.  IT ERRED
BECAUSE OF THE GLOSS IT PLACED ON THE STATISTICS AND TESTIMONY ADDUCED
BEFORE THE HEARING EXAMINER AND THE COMMISSION. 

THE COURT DISCOUNTS THE VALUE OF POST-ACQUISITION EVIDENCE ON THE
GROUND THAT THE COMPANIES ARE NOT ENTITLED TO A "FREE TRIAL" PERIOD
AFTER THE MERGER.  THAT CHARACTERIZATION, HOWEVER, MISSTATES THE CASE. 
NO ONE GIVES THE COMPANY A "FREE TRIAL" BY ASSESSING, IN LIGHT OF WHAT
ACTUALLY HAPPENED, WHAT COULD ONLY BE HYPOTHESES AT THE TIME THE MERGER
OCCURRED.  WITHOUT POST-ACQUISITION EVIDENCE, THE TRIER IS FACED WITH A
BLANK SLATE AND UNTESTED SPECULATION.  THE MERGER IN THIS CASE WAS
ACHIEVED IN 1951, YET THE COMMISSION DID NOT ISSUE A CEASE-AND-DESIST
ORDER UNTIL SIX YEARS LATER.  WE MAY BE SURE THAT THE COMMISSION RELIED
ON POST-ACQUISITION FACTORS IN ISSUING ITS ORDER; THERE IS NO REASON
WHY WE SHOULD RELY ON THOSE FACTORS LESS IN ASSESSING THE PROPRIETY OF
THE COMMISSION'S ACTION.  INDEED, IF ANYONE HAD A "FREE TRIAL" PERIOD
TO CHECK THE ANTICOMPETITIVE POTENTIAL OF THE MERGER, IT WAS NOT THE
RESPONDENT BUT THE COMMISSION. 

THE RECORD IN THIS CASE IS SORELY INCOMPLETE, AND A REVIEWING COURT
IS GIVEN LITTLE GUIDANCE IN DETERMINING WHY THIS MERGER SHOULD BE
VOIDED, IF RECIPROCITY-CREATING MERGERS ARE NOT PER SE INVALID.  YET
OUR RESPONSIBILITY TO THE COMMISSION - TO RESPECT ITS FINDINGS WHERE
THERE IS EVIDENCE TO SUPPORT THEM - REQUIRES CLOSE SCRUTINY OF THE
RECORD BEFORE ITS CONCLUSIONS ARE UPSET.  I THINK THE RECORD CONTAINS
JUST ENOUGH TO SUPPORT INVALIDATION OF THE MERGER, BUT BECAUSE OF
EVIDENCE NOT REFERRED TO IN THE COURT'S OPINION.    THE FOOD PROCESSING
INDUSTRY IS COMPOSED BASICALLY OF TWO CLASSES OF MANUFACTURERS.  ONE
CLASS, WHICH INCLUDES SUCH PROCESSORS AS ARMOUR AND SWIFT, HAS BUILT
SIGNIFICANT BRAND NAMES COMMANDING CONSUMER ACCEPTANCE OF THEIR
PRODUCTS.  FOR SUCH COMPANIES, EXPOSURE AT THE RETAIL MARKET IS
ASSURED.  CONSOLIDATED FOODS, AS THE WHOLESALER, IS SUFFICIENTLY
DEPENDENT ON SUCH PROCESSORS THAT ITS ECONOMIC POWER OVER THIS CLASS IS
MINIMAL.  IT CANNOT READILY STRONG-ARM ARMOUR INTO PURCHASING
DEHYDRATED ONIONS FROM GENTRY AT THE PAIN OF LOSING CONSOLIDATED'S
FAVOR.  A SECOND CLASS INCORPORATES THE SMALLER PROCESSORS IN THE
INDUSTRY.  MANY OF THESE SELL THEIR PRODUCT TO CONSOLIDATED IN BULK,
FOR PACKAGING UNDER HOUSE LABELS OF CONSOLIDATED DIVISIONS.  MANY OF
THE PRODUCTS WHICH THESE PROCESSORS PACKAGE UNDER THEIR OWN LABELS ARE
NOT SO WIDELY KNOWN; THEY RELY ON THE WHOLESALER TO PERSUADE
SUPERMARKETS TO TRY THEM ON THEIR COUNTERS.  THESE PROCESSORS ARE
SUSCEPTIBLE TO THE SUBTLE PRESSURES OF RECIPROCITY. 

MY READING OF THE RECORD PERSUADES ME THAT MOST OF THE PROCESSORS IN
THIS SECOND CLASS SHIFTED THEIR BUYING FROM BASIC TO GENTRY, THOUGH THE
EXTENT OF THAT SHIFT VARIED FROM COMPANY TO COMPANY.  IT IS TRUE THAT
TESTIMONY FROM THE PURCHASING AGENTS OF MANY OF THESE COMPANIES
ATTRIBUTED THE SHIFT TO OTHER CAUSES.  HOWEVER, THE PATTERN OF MOVEMENT
IN THIS CLASS, WHEN CONTRASTED TO THE LACK OF A PATTERN AMONG THE MAJOR
PROCESSORS, SEEMS TO ME SUFFICIENT TO SUPPORT THE COMMISSION'S
CONCLUSION THAT THESE SHIFTS WERE IN RESPONSE TO THE INFLUENCE OF
RECIPROCITY, WHETHER EXPRESS OR "TACITLY ACCOMMODATIVE."  THE PATTERN
IS RELEVANT BECAUSE THE INDEPENDENT PROCESSORS ARE SUBSTANTIAL
PURCHASERS IN THE DEHYDRATED ONION AND GARLIC MARKET.  FURTHERMORE,
THIS PATTERN CONFIRMS WHAT WAS ASSUMED BY THE COMMISSION:  THAT
CONSOLIDATED HAS THE POWER TO INFLUENCE THE PURCHASES BY A SUBSTANTIAL
SEGMENT OF ITS SUPPLIERS.  SOME OF THE INDEPENDENT PROCESSORS HAVE
FAILED, AND OTHERS HAVE MERGED WITH LARGE PROCESSORS LEADING TO GREATER
CONCENTRATION IN THE FOOD PROCESSING INDUSTRY.  THE COMMISSION COULD,
THEREFORE, HAVE FAIRLY CONCLUDED THAT THE INHIBITORY EFFECTS OF
RECIPROCITY IN THIS SITUATION MARKED THIS MERGER WITH ILLEGALITY. 

FOR THESE REASONS I CONCUR IN THE JUDGMENT OF THE COURT. 

FN1  SEE HAUSMAN, RECIPROCAL DEALING AND THE ANTITRUST LAWS, 77 HARV.
L. REV. 873; KRASH, THE LEGALITY OF RECIPROCITY UNDER SECTION 7 OF THE
CLAYTON ACT, 9 ANTITRUST BULL.  93 (1964); AMMER, REALISTIC
RECIPROCITY, 40 HARV. BUS.  REV.  NO. 1, 116 (1962). 

FN2  SEE, E.G., UNITED STATES V. GENERAL DYNAMICS CORP.
(D.C.S.D.N.Y.); UNITED STATES V. GENERAL MOTORS CORP. (D.C.N.D. ILL.);
TRABON ENGINEERING CORP. V. EATON MFG. CO. (D.C.N.D. OHIO). 

FN3  INDEED, BY THE TIME OF THE COMMISSION'S DECISION AN ADDITIONAL
FIRM, GILROY FOODS, INC., HAD ENTERED THIS MARKET. 

FN4  FOR EXAMPLE, CUSTOMERS OF GENTRY OFTEN CHOSE BASIC FOR THEIR
ALTERNATIVE SUPPLIER, PROBABLY BECAUSE OF DOUBT THAT PUCCINELLI COULD
SATISFY THEIR NEEDS IF THE OCCASION AROSE.  THERE IS NO REASON TO
ASSUME THAT CUSTOMERS OF BASIC CHOSE GENTRY AS A BACKSTOP FOR MOTIVES
ANY MORE NEFARIOUS. 
..END :








GRIFFIN V. CALIFORNIA 380 U.S. 609 


NO. 202.  ARGUED MARCH 9, 1965.  - DECIDED APRIL 28, 1965.  - 60 CAL. 2D
182, 383 P.2D 432, REVERSED. 


COMMENT TO THE JURY BY A PROSECUTOR IN A STATE CRIMINAL TRIAL UPON A
DEFENDANT'S FAILURE TO TESTIFY AS TO MATTERS WHICH HE CAN REASONABLY BE
EXPECTED TO DENY OR EXPLAIN BECAUSE OF FACTS WITHIN HIS KNOWLEDGE OR BY
THE COURT THAT THE DEFENDANT'S SILENCE UNDER THOSE CIRCUMSTANCES
EVIDENCES GUILT VIOLATES THE SELF-INCRIMINATION CLAUSE OF THE FIFTH
AMENDMENT OF THE FEDERAL CONSTITUTION AS MADE APPLICABLE TO THE STATES
BY THE FOURTEENTH, MALLOY V. HOGAN, 378 U.S. 1.  PP. 610-615. 

GRIFFIN V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF MURDER IN THE FIRST DEGREE AFTER A JURY
TRIAL IN A CALIFORNIA COURT.  HE DID NOT TESTIFY AT THE TRIAL ON THE
ISSUE OF GUILT, THOUGH HE DID TESTIFY AT THE SEPARATE TRIAL (FN1) ON
THE ISSUE OF PENALTY.  THE TRIAL COURT INSTRUCTED THE JURY ON THE ISSUE
OF GUILT, STATING THAT A DEFENDANT HAS A CONSTITUTIONAL RIGHT NOT TO
TESTIFY.  BUT IT TOLD THE JURY:  (FN2) 

"AS TO ANY EVIDENCE OR FACTS AGAINST HIM WHICH THE DEFENDANT CAN
REASONABLY BE EXPECTED TO DENY OR EXPLAIN BECAUSE OF FACTS WITHIN HIS
KNOWLEDGE, IF HE DOES NOT TESTIFY OR IF, THOUGH HE DOES TESTIFY, HE
FAILS TO DENY OR EXPLAIN SUCH EVIDENCE, THE JURY MAY TAKE THAT FAILURE
INTO CONSIDERATION AS TENDING TO INDICATE THE TRUTH OF SUCH EVIDENCE
AND AS INDICATING THAT AMONG THE INFERENCES THAT MAY BE REASONABLY
DRAWN THEREFROM THOSE UNFAVORABLE TO THE DEFENDANT ARE THE MORE
PROBABLE." 

IT ADDED, HOWEVER, THAT NO SUCH INFERENCE COULD BE DRAWN AS TO
EVIDENCE RESPECTING WHICH HE HAD NO KNOWLEDGE.  IT STATED THAT FAILURE
OF A DEFENDANT TO DENY OR EXPLAIN THE EVIDENCE OF WHICH HE HAD
KNOWLEDGE DOES NOT CREATE A PRESUMPTION OF GUILT NOR BY ITSELF WARRANT
AN INFERENCE OF GUILT NOR RELIEVE THE PROSECUTION OF ANY OF ITS BURDEN
OF PROOF. 

PETITIONER HAD BEEN SEEN WITH THE DECEASED THE EVENING OF HER DEATH,
THE EVIDENCE PLACING HIM WITH HER IN THE ALLEY WHERE HER BODY WAS
FOUND.  THE PROSECUTOR MADE MUCH OF THE FAILURE OF PETITIONER TO
TESTIFY: 

"THE DEFENDANT CERTAINLY KNOWS WHETHER ESSIE MAE HAD THIS BEAT UP
APPEARANCE AT THE TIME HE LEFT HER APARTMENT AND WENT DOWN THE ALLEY
WITH HER. 

"WHAT KIND OF A MAN IS IT THAT WOULD WANT TO HAVE SEX WITH A WOMAN
THAT BEAT UP IF SHE WAS BEAT UP AT THE TIME HE LEFT? 

"HE WOULD KNOW THAT.  HE WOULD KNOW HOW SHE GOT DOWN THE ALLEY.  HE
WOULD KNOW HOW THE BLOOD GOT ON THE BOTTOM OF THE CONCRETE STEPS.  HE
WOULD KNOW HOW LONG HE WAS WITH HER IN THAT BOX.  HE WOULD KNOW HOW HER
WIG GOT OFF.  HE WOULD KNOW WHETHER HE BEAT HER OR MISTREATED HER.  HE
WOULD KNOW WHETHER HE WALKED AWAY FROM THAT PLACE COOL AS A CUCUMBER
WHEN HE SAW MR. VILLASENOR BECAUSE HE WAS CONSCIOUS OF HIS OWN GUILT
AND WANTED TO GET AWAY FROM THAT DAMAGED OR INJURED WOMAN. 

"THESE THINGS HE HAS NOT SEEN FIT TO TAKE THE STAND AND DENY OR
EXPLAIN. 

"AND IN THE WHOLE WORLD, IF ANYBODY WOULD KNOW, THIS DEFENDANT WOULD
KNOW. 

"ESSIE MAE IS DEAD, SHE CAN'T TELL YOU HER SIDE OF THE STORY.  THE
DEFENDANT WON'T." 

THE DEATH PENALTY WAS IMPOSED AND THE CALIFORNIA SUPREME COURT
AFFIRMED.  60 CAL.  2D 182, 383 P.2D 432.  THE CASE IS HERE ON A WRIT
OF CERTIORARI WHICH WE GRANTED, 377 U.S. 989, TO CONSIDER WHETHER
COMMENT ON THE FAILURE TO TESTIFY VIOLATED THE SELF-INCRIMINATION
CLAUSE OF THE FIFTH AMENDMENT WHICH WE MADE APPLICABLE TO THE STATES BY
THE FOURTEENTH IN MALLOY V. HOGAN, 378 U.S. 1, DECIDED AFTER THE
SUPREME COURT OF CALIFORNIA HAD AFFIRMED THE PRESENT CONVICTION. 
(FN3) 

IF THIS WERE A FEDERAL TRIAL, REVERSIBLE ERROR WOULD HAVE BEEN
COMMITTED.  WILSON V. UNITED STATES, 149 U.S. 60, SO HOLDS.  IT IS
SAID, HOWEVER, THAT THE WILSON DECISION RESTED NOT ON THE FIFTH
AMENDMENT, BUT ON AN ACT OF CONGRESS, NOW 18 U.S.C. SEC.  3481.  (FN4)
THAT INDEED IS THE FACT, AS THE OPINION OF THE COURT IN THE WILSON CASE
STATES.  AND SEE ADAMSON V. CALIFORNIA, 332 U.S. 46, 50, N. 6; BRUNO V.
UNITED STATES, 308 U.S. 287, 294.  BUT THAT IS THE BEGINNING, NOT THE
END, OF OUR INQUIRY.  THE QUESTION REMAINS WHETHER, STATUTE OR NOT, THE
COMMENT RULE, APPROVED BY CALIFORNIA, VIOLATES THE FIFTH AMENDMENT. 

WE THINK IT DOES.  IT IS IN SUBSTANCE A RULE OF EVIDENCE THAT ALLOWS
THE STATE THE PRIVILEGE OF TENDERING TO THE JURY FOR ITS CONSIDERATION
THE FAILURE OF THE ACCUSED TO TESTIFY.  NO FORMAL OFFER OF PROOF IS
MADE AS IN OTHER SITUATIONS; BUT THE PROSECUTOR'S COMMENT AND THE
COURT'S ACQUIESCENCE ARE THE EQUIVALENT OF AN OFFER OF EVIDENCE AND ITS
ACCEPTANCE.  THE COURT IN THE WILSON CASE STATED:

"  ...  THE ACT WAS FRAMED WITH A DUE REGARD ALSO TO THOSE WHO MIGHT
PREFER TO RELY UPON THE PRESUMPTION OF INNOCENCE WHICH THE LAW GIVES TO
EVERY ONE, AND NOT WISH TO BE WITNESSES.  IT IS NOT EVERY ONE WHO CAN
SAFELY VENTURE ON THE WITNESS STAND THOUGH ENTIRELY INNOCENT OF THE
CHARGE AGAINST HIM.  EXCESSIVE TIMIDITY, NERVOUSNESS WHEN FACING OTHERS
AND ATTEMPTING TO EXPLAIN TRANSACTIONS OF A SUSPICIOUS CHARACTER, AND
OFFENCES CHARGED AGAINST HIM, WILL OFTEN CONFUSE AND EMBARRASS HIM TO
SUCH A DEGREE AS TO INCREASE RATHER THAN REMOVE PREJUDICES AGAINST
HIM.  IT IS NOT EVERY ONE, HOWEVER HONEST, WHO WOULD, THEREFORE,
WILLINGLY BE PLACED ON THE WITNESS STAND.  THE STATUTE, IN TENDERNESS
TO THE WEAKNESS OF THOSE WHO FROM THE CAUSES MENTIONED MIGHT REFUSE TO
ASK TO BE A WITNESS, PARTICULARLY WHEN THEY MAY HAVE BEEN IN SOME
DEGREE COMPROMISED BY THEIR ASSOCIATION WITH OTHERS, DECLARES THAT THE
FAILURE OF THE DEFENDANT IN A CRIMINAL ACTION TO REQUEST TO BE A
WITNESS SHALL NOT CREATE ANY PRESUMPTION AGAINST HIM."  149 U.S., P.
66. 

IF THE WORDS "FIFTH AMENDMENT" ARE SUBSTITUTED FOR "ACT" AND FOR
"STATUTE," THE SPIRIT OF THE SELF-INCRIMINATION CLAUSE IS REFLECTED. 
FOR COMMENT ON THE REFUSAL TO TESTIFY IS A REMNANT OF THE
"INQUISITORIAL SYSTEM OF CRIMINAL JUSTICE,"  MURPHY V. WATERFRONT
COMM'N, 378 U.S. 52, 55, WHICH THE FIFTH AMENDMENT OUTLAWS.  (FN5)  IT
IS A PENALTY IMPOSED BY COURTS FOR EXERCISING A CONSTITUTIONAL
PRIVILEGE.  IT CUTS DOWN ON THE PRIVILEGE BY MAKING ITS ASSERTION
COSTLY.  IT IS SAID, HOWEVER, THAT THE INFERENCE OF GUILT FOR FAILURE
TO TESTIFY AS TO FACTS PECULIARLY WITHIN THE ACCUSED'S KNOWLEDGE IS IN
ANY EVENT NATURAL AND IRRESISTIBLE, AND THAT COMMENT ON THE FAILURE
DOES NOT MAGNIFY THAT INFERENCE INTO A PENALTY FOR ASSERTING A
CONSTITUTIONAL PRIVILEGE.  PEOPLE V. MODESTO, 62 CAL. 2D 436, 452-453,
398 P.2D 753, 762-763.  WHAT THE JURY MAY INFER, GIVEN NO HELP FROM THE
COURT, IS ONE THING.  WHAT IT MAY INFER WHEN THE COURT SOLEMNIZES THE
SILENCE OF THE ACCUSED INTO EVIDENCE AGAINST HIM IS QUITE ANOTHER. 
THAT THE INFERENCE OF GUILT IS NOT ALWAYS SO NATURAL OR IRRESISTIBLE IS
BROUGHT OUT IN THE MODESTO OPINION ITSELF: 

"DEFENDANT CONTENDS THAT THE REASON A DEFENDANT REFUSES TO TESTIFY IS
THAT HIS PRIOR CONVICTIONS WILL BE INTRODUCED IN EVIDENCE TO IMPEACH
HIM.  (CAL. CODE CIV. PROC. SEC.  2051) AND NOT THAT HE IS UNABLE TO
DENY THE ACCUSATIONS.  IT IS TRUE THAT THE DEFENDANT MIGHT FEAR THAT
HIS PRIOR CONVICTIONS WILL PREJUDICE THE JURY, AND THEREFORE ANOTHER
POSSIBLE INFERENCE CAN BE DRAWN FROM HIS REFUSAL TO TAKE THE STAND." 
ID., P. 453, 398 P.2D, P. 763. 

WE SAID IN MALLOY V. HOGAN, SUPRA, P. 11, THAT "THE SAME STANDARDS
MUST DETERMINE WHETHER AN ACCUSED'S SILENCE IN EITHER A FEDERAL OR
STATE PROCEEDING IS JUSTIFIED."  WE TAKE THAT IN ITS LITERAL SENSE AND
HOLD THAT THE FIFTH AMENDMENT, IN ITS DIRECT APPLICATION TO THE FEDERAL
GOVERNMENT, AND IN ITS BEARING ON THE STATES BY REASON OF THE
FOURTEENTH AMENDMENT, FORBIDS EITHER COMMENT BY THE PROSECUTION ON THE
ACCUSED'S SILENCE OR INSTRUCTIONS BY THE COURT THAT SUCH SILENCE IS
EVIDENCE OF GUILT.  (FN6)  REVERSED. 

FN1  SEE PENAL CODE SEC. 190.1, PROVIDING FOR SEPARATE TRIALS ON THE
TWO ISSUES. 

FN2  ARTICLE I, SEC. 13, OF THE CALIFORNIA CONSTITUTION PROVIDES IN
PART: 

"  ...  IN ANY CRIMINAL CASE, WHETHER THE DEFENDANT TESTIFIES OR NOT,
HIS FAILURE TO EXPLAIN OR TO DENY BY HIS TESTIMONY ANY EVIDENCE OR
FACTS IN THE CASE AGAINST HIM MAY BE COMMENTED UPON BY THE COURT AND BY
THE COUNSEL, AND MAY BE CONSIDERED BY THE COURT OR THE JURY." 

FN3  THE CALIFORNIA SUPREME COURT LATER HELD IN PEOPLE V. MODESTO, 62
CAL. 2D 436, 398 P.2D 753, THAT ITS "COMMENT" RULE SQUARED WITH MALLOY
V. HOGAN, 378 U.S. 1.  THE OVERWHELMING CONSENSUS OF THE STATES,
HOWEVER, IS OPPOSED TO ALLOWING COMMENT ON THE DEFENDANT'S FAILURE TO
TESTIFY.  THE LEGISLATURES OR COURTS OF 44 STATES HAVE RECOGNIZED THAT
SUCH COMMENT IS, IN LIGHT OF THE PRIVILEGE AGAINST SELF-INCRIMINATION,
"AN UNWARRANTABLE LINE OF ARGUMENT."  STATE V. HOWARD, 35 S.C. 197,
203, 14 S.E. 481, 483.  SEE 8 WIGMORE, EVIDENCE SEC. 2272, N. 2
(MCNAUGHTON REV. ED. 1961 AND 1964 SUPP.).  OF THE SIX STATES WHICH
PERMIT COMMENT, TWO, CALIFORNIA AND OHIO, GIVE THIS PERMISSION BY MEANS
OF AN EXPLICIT CONSTITUTIONAL QUALIFICATION OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION.  CAL. CONST., ART. I, SEC. 13; OHIO CONST., ART. I,
SEC. 10.  NEW JERSEY PERMITS COMMENT, STATE V. CORBY, 28 N.J. 106, 145
A.2D 289; CF. STATE V. GARVIN, 44 N.J. 268, 208 A.2D 402; BUT ITS
CONSTITUTION CONTAINS NO PROVISION EMBODYING THE PRIVILEGE AGAINST SELF
INCRIMINATION (SEE LABA V. NEWARK BD. OF EDUC., 23 N.J. 364, 389, 129
A.2D 273, 287; STATE V. WHITE, 27 N.J. 158, 168-169, 142 A.2D 65, 70). 
THE ABSENCE OF AN EXPRESS CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION ALSO PUTS IOWA AMONG THE SIX.  SEE STATE V. FERGUSON, 226
IOWA 361, 372-373, 283 N.W. 917, 923.  CONNECTICUT PERMITS COMMENT BY
THE JUDGE BUT NOT BY THE PROSECUTOR.  STATE V. HENO, 119 CONN. 29, 174
A. 181.  NEW MEXICO PERMITS COMMENT BY THE PROSECUTOR BUT HOLDS THAT
THE ACCUSED IS THEN ENTITLED TO AN INSTRUCTION THAT "THE JURY SHALL
INDULGE NO PRESUMPTION AGAINST THE ACCUSED BECAUSE OF HIS FAILURE TO
TESTIFY."  N.M. STAT. ANN. SEC. 41-12-19; STATE V. SANDOVAL, 59 N.M.
85, 279 P.2D 850. 

FN4  SECTION 3481 READS AS FOLLOWS: 

"IN TRIAL OF ALL PERSONS CHARGED WITH THE COMMISSION OF OFFENSES
AGAINST THE UNITED STATES AND IN ALL PROCEEDINGS IN COURTS MARTIAL AND
COURTS OF INQUIRY IN ANY STATE, DISTRICT, POSSESSION OR TERRITORY, THE
PERSON CHARGED SHALL, AT HIS OWN REQUEST, BE A COMPETENT WITNESS.  HIS
FAILURE TO MAKE SUCH REQUEST SHALL NOT CREATE ANY PRESUMPTION AGAINST
HIM."  JUNE 25, 1948, C. 645, 62 STAT. 833. 

THE LEGISLATIVE HISTORY SHOWS THAT 18 U.S.C. SEC. 3481 WAS DESIGNED,
INTER ALIA, TO BAR COUNSEL FOR THE PROSECUTION FROM COMMENTING ON THE
DEFENDANT'S REFUSAL TO TESTIFY.  MR. FRYE OF MAINE, SPOKESMAN FOR THE
BILL, SAID, "THAT IS THE LAW OF MASSACHUSETTS, AND WE PROPOSE TO ADOPT
IT AS A LAW OF THE UNITED STATES."  7 CONG. REC. 385.  THE REFERENCE
WAS TO MASS. STAT. 1866, C. 260, NOW MASS. GEN. LAWS ANN., C. 233, SEC.
20, CL. THIRD (1959), WHICH IS ALMOST IDENTICAL WITH 18 U.S.C. SEC.
3481.  SEE ALSO COMMONWEALTH V. HARLOW, 110 MASS. 411; COMMONWEALTH V.
SCOTT, 123 MASS. 239; OPINION OF THE JUSTICES, 300 MASS. 620, 15 N.E.2D
662. 

FN5  OUR DECISION TODAY THAT THE FIFTH AMENDMENT PROHIBITS COMMENT ON
THE DEFENDANT'S SILENCE IS NO INNOVATION, FOR ON A PREVIOUS OCCASION A
MAJORITY OF THIS COURT INDICATED THEIR ACCEPTANCE OF THIS PROPOSITION. 
IN ADAMSON V. CALIFORNIA, 332 U.S. 46, THE QUESTION WAS, AS HERE,
WHETHER THE FIFTH AMENDMENT PROSCRIBED CALIFORNIA'S COMMENT PRACTICE. 
THE FOUR DISSENTERS (BLACK, DOUGLAS, MURPHY AND RUTLEDGE, JJ.)  WOULD
HAVE ANSWERED THIS QUESTION IN THE AFFIRMATIVE.  A FIFTH MEMBER OF THE
COURT, JUSTICE FRANKFURTER, STATED IN A SEPARATE OPINION:  "FOR
HISTORICAL REASONS A LIMITED IMMUNITY FROM THE COMMON DUTY TO TESTIFY
WAS WRITTEN INTO THE FEDERAL BILL OF RIGHTS, AND I AM PREPARED TO AGREE
THAT, AS PART OF THAT IMMUNITY, COMMENT ON THE FAILURE OF AN ACCUSED TO
TAKE THE WITNESS STAND IS FORBIDDEN IN FEDERAL PROSECUTIONS."  ID., P.
61.  BUT, THOUGH HE AGREED WITH THE DISSENTERS ON THIS POINT, HE ALSO
AGREED WITH JUSTICES VINSON, REED, JACKSON, AND BURTON THAT THE
FOURTEENTH AMENDMENT DID NOT MAKE THE SELF-INCRIMINATION CLAUSE OF THE
FIFTH AMENDMENT APPLICABLE TO THE STATES; THUS HE JOINED THE OPINION OF
THE COURT WHICH SO HELD (THE COURT'S OPINION ASSUMED THAT THE FIFTH
AMENDMENT BARRED COMMENT, BUT IT EXPRESSLY DISCLAIMED ANY INTENTION TO
DECIDE THE POINT.  ID., P. 50). 

FN6  WE RESERVE DECISION ON WHETHER AN ACCUSED CAN REQUIRE, AS IN
BRUNO V. UNITED STATES, 308 U.S. 287, THAT THE JURY BE INSTRUCTED THAT
HIS SILENCE MUST BE DISREGARDED. 

THE CHIEF JUSTICE TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I AGREE WITH THE COURT THAT WITHIN THE FEDERAL JUDICIAL SYSTEM THE
FIFTH AMENDMENT BARS ADVERSE COMMENT BY FEDERAL PROSECUTORS AND JUDGES
ON A DEFENDANT'S FAILURE TO TAKE THE STAND IN A CRIMINAL TRIAL, A RIGHT
ACCORDED HIM BY THAT AMENDMENT.  AND GIVEN LAST TERM'S DECISION IN
MALOY V. HOGAN.  378 U.S. 1, THAT THE FIFTH AMENDMENT APPLIES TO THE
STATES IN ALL ITS REFINEMENTS, I SEE NO LEGITIMATE ESCAPE FROM TODAY'S
DECISION AND THEREFORE CONCUR IN IT.  I DO SO, HOWEVER, WITH GREAT
RELUCTANCE, SINCE FOR ME THE DECISION EXEMPLIFIES THE CREEPING
PARALYSIS WITH WHICH THIS COURT'S RECENT ADOPTION OF THE
"INCORPORATION" DOCTRINE IS INFECTING THE OPERATION OF THE FEDERAL
SYSTEM.  SEE MY OPINION CONCURRING IN THE RESULT IN POINTER V. TEXAS,
ANTE, P. 400, AT 408. 

WHILE I WOULD AGREE THAT THE ACCUSATORIAL RATHER THAN INQUISITORIAL
PROCESS IS A FUNDAMENTAL PART OF THE "LIBERTY" GUARANTEED BY THE
FOURTEENTH AMENDMENT, BY BROTHER STEWART IN DISSENT, POST, P. 617,
FULLY DEMONSTRATES THAT THE NO-COMMENT RULE "MIGHT BE LOST, AND JUSTICE
STILL BE DONE," PALKO V. CONNECTICUT, 302 U.S. 319, 325.  AS A "NON
FUNDAMENTAL" PART OF THE FIFTH AMENDMENT (CF. MY OPINION CONCURRING IN
THE RESULT IN POINTER, AT 409), I WOULD NOT, BUT FOR MALLOY, APPLY THE
NO-COMMENT RULE TO THE STATES.    MALLOY PUT FORWARD A SINGLE ARGUMENT
FOR APPLYING THE FIFTH AMENDMENT, AS SUCH, TO THE STATES: 

"IT WOULD BE INCONGRUOUS TO HAVE DIFFERENT STANDARDS DETERMINE THE
VALIDITY OF A CLAIM OF PRIVILEGE  ...  , DEPENDING ON WHETHER THE CLAIM
WAS ASSERTED IN A STATE OR FEDERAL COURT.  THEREFORE, THE SAME
STANDARDS MUST DETERMINE WHETHER AN ACCUSED'S SILENCE IN EITHER A
FEDERAL OR STATE PROCEEDING IS JUSTIFIED."  MALLOY V. HOGAN, SUPRA, AT
11.    MY ANSWER THEN (378 U.S., AT 27) AND NOW IS THAT "INCONGRUITY,"
WITHIN THE LIMITS OF FUNDAMENTAL FAIRNESS, IS AT THE HEART OF OUR
FEDERAL SYSTEM.  THE POWERS AND RESPONSIBILITIES OF THE STATE AND
FEDERAL GOVERNMENTS ARE NOT CONGRUENT, AND UNDER THE CONSTITUTION THEY
ARE NOT INTENDED TO BE. 

IT HAS ALSO RECENTLY BEEN SUGGESTED THAT MEASURING STATE PROCEDURES
AGAINST STANDARDS OF FUNDAMENTAL FAIRNESS AS REFLECTED IN SUCH LANDMARK
DECISIONS AS TWINING V. NEW JERSEY, 211 U.S. 78, AND PALKO V.
CONNECTICUT, SUPRA, "WOULD REQUIRE THIS COURT TO INTERVENE IN THE STATE
JUDICIAL PROCESS WITH CONSIDERABLE LACK OF PREDICTABILITY AND WITH A
CONSEQUENT LIKELIHOOD OF CONSIDERABLE FRICTION," POINTER V. TEXAS,
SUPRA, AT 413-414 (CONCURRING OPINION OF GOLDBERG, J.).  THIS APPROACH
TO THE REQUIREMENTS OF FEDERALISM, NOT UNLIKE THAT EVINCED BY THE COURT
IN HENRY V. MISSISSIPPI, 379 U.S. 443, APPARENTLY LEADS, IN CASES LIKE
THIS, TO THE CONCLUSION THAT THE WAY TO ELIMINATE FRICTION WITH STATE
JUDICIAL SYSTEMS IS NOT TO ATTEMPT A WORKING HARMONY, BUT TO OVERRIDE
THEM ALTOGETHER. 

ALTHOUGH COMPELLED TO CONCUR IN THIS DECISION, I AM FREE TO EXPRESS
THE HOPE THAT THE COURT WILL EVENTUALLY RETURN TO CONSTITUTIONAL PATHS
WHICH, UNTIL RECENTLY, IT HAS FOLLOWED THROUGHOUT ITS HISTORY. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

THE PETITIONER CHOSE NOT TO TAKE THE WITNESS STAND AT HIS TRIAL UPON
A CHARGE OF FIRST-DEGREE MURDER IN A CALIFORNIA COURT.  ARTICLE I, SEC.
13, OF THE CALIFORNIA CONSTITUTION ESTABLISHES A DEFENDANT'S PRIVILEGE
AGAINST SELF-INCRIMINATION AND FURTHER PROVIDES: 

"IN ANY CRIMINAL CASE, WHETHER THE DEFENDANT TESTIFIES OR NOT, HIS
FAILURE TO EXPLAIN OR TO DENY BY HIS TESTIMONY ANY EVIDENCE OR FACTS IN
THE CASE AGAINST HIM MAY BE COMMENTED UPON BY THE COURT AND BY COUNSEL,
AND MAY BE CONSIDERED BY THE COURT OR THE JURY." 

IN CONFORMITY WITH THIS PROVISION, THE PROSECUTOR IN HIS ARGUMENT TO
THE JURY EMPHASIZED THAT A PERSON ACCUSED OF CRIME IN A PUBLIC FORUM
WOULD ORDINARILY DENY OR EXPLAIN THE EVIDENCE AGAINST HIM IF HE
TRUTHFULLY COULD DO SO.  (FN1)  ALSO IN CONFORMITY WITH THIS CALIFORNIA
CONSTITUTIONAL PROVISION, THE JUDGE INSTRUCTED THE JURY IN THE
FOLLOWING TERMS: 

"IT IS A CONSTITUTIONAL RIGHT OF A DEFENDANT IN A CRIMINAL TRIAL THAT
HE MAY NOT BE COMPELLED TO TESTIFY.  THUS, WHETHER OR NOT HE DOES
TESTIFY RESTS ENTIRELY IN HIS OWN DECISION.  AS TO ANY EVIDENCE OR
FACTS AGAINST HIM WHICH THE DEFENDANT CAN REASONABLY BE EXPECTED TO
DENY OR EXPLAIN BECAUSE OF FACTS WITHIN HIS KNOWLEDGE, IF HE DOES NOT
TESTIFY, OR IF, THOUGH HE DOES TESTIFY, HE FAILS TO DENY OR EXPLAIN
SUCH EVIDENCE, THE JURY MAY TAKE THAT FAILURE INTO CONSIDERATION AS
TENDING TO INDICATE THE TRUTH OF SUCH EVIDENCE AND AS INDICATING THAT
AMONG THE INFERENCES THAT MAY BE REASONABLY DRAWN THEREFROM THOSE
UNFAVORABLE TO THE DEFENDANT ARE THE MORE PROBABLE.  IN THIS
CONNECTION, HOWEVER, IT SHOULD BE NOTED THAT IF A DEFENDANT DOES NOT
HAVE THE KNOWLEDGE THAT HE WOULD NEED TO DENY OR TO EXPLAIN ANY CERTAIN
EVIDENCE AGAINST HIM, IT WOULD BE UNREASONABLE TO DRAW AN INFERENCE
UNFAVORABLE TO HIM BECAUSE OF HIS FAILURE TO DENY OR EXPLAIN SUCH
EVIDENCE.  THE FAILURE OF A DEFENDANT TO DENY OR EXPLAIN EVIDENCE
AGAINST HIM DOES NOT CREATE A PRESUMPTION OF GUILT OR BY ITSELF WARRANT
AN INFERENCE OF GUILT, NOR DOES IT RELIEVE THE PROSECUTION OF ITS
BURDEN OF PROVING EVERY ESSENTIAL ELEMENT OF THE CRIME AND THE GUILT OF
THE DEFENDANT BEYOND A REASONABLE DOUBT." 

THE JURY FOUND THE PETITIONER GUILTY AS CHARGED, AND HIS CONVICTION
WAS AFFIRMED BY THE SUPREME COURT OF CALIFORNIA.  (FN2) 

NO CLAIM IS MADE THAT THE PROSECUTOR'S ARGUMENT OR THE TRIAL JUDGE'S
INSTRUCTIONS TO THE JURY IN THIS CASE DEPRIVED THE PETITIONER OF DUE
PROCESS OF LAW AS SUCH.  THIS COURT LONG AGO DECIDED THAT THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT OF ITS OWN FORCE
FORBID THIS KIND OF COMMENT ON A DEFENDANT'S FAILURE TO TESTIFY. 
TWINING V. NEW JERSEY, 211 U.S. 78; ADAMSON V. CALIFORNIA, 332 U.S.
46.  THE COURT HOLDS, HOWEVER, THAT THE CALIFORNIA CONSTITUTIONAL
PROVISION VIOLATES THE FIFTH AMENDMENT'S INJUNCTION THAT NO PERSON
"SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF," AN INJUNCTION WHICH THE COURT LESS THAN A YEAR AGO FOR THE
FIRST TIME FOUND WAS APPLICABLE TO TRIALS IN THE COURTS OF THE SEVERAL
STATES. 

WITH BOTH CANDOR AND ACCURACY, THE COURT CONCEDES THAT THE QUESTION
BEFORE US IS ONE OF FIRST IMPRESSION HERE.  (FN3)  IT IS A QUESTION
WHICH HAS NOT ARISEN BEFORE, BECAUSE UNTIL LAST YEAR THE SELF
INCRIMINATION PROVISION OF THE FIFTH AMENDMENT HAD BEEN HELD TO APPLY
ONLY TO FEDERAL PROCEEDINGS, AND IN THE FEDERAL JUDICIAL SYSTEM THE
MATTER HAS BEEN COVERED BY A SPECIFIC ACT OF CONGRESS WHICH HAS BEEN IN
EFFECT EVER SINCE DEFENDANTS HAVE BEEN PERMITTED TO TESTIFY AT ALL IN
FEDERAL CRIMINAL TRIALS.  (FN4)  SEE BRUNO V. UNITED STATES, 308 U.S.
287; WILSON V. UNITED STATES, 149 U.S. 60; ADAMSON V. CALIFORNIA,
SUPRA. 

WE MUST DETERMINE WHETHER THE PETITIONER HAS BEEN "COMPELLED  ...  TO
BE A WITNESS AGAINST HIMSELF."  COMPULSION IS THE FOCUS OF THE
INQUIRY.  CERTAINLY, IF ANY COMPULSION BE DETECTED IN THE CALIFORNIA
PROCEDURE, IT IS OF A DRAMATICALLY DIFFERENT AND LESS PALPABLE NATURE
THAN THAT INVOLVED IN THE PROCEDURES WHICH HISTORICALLY GAVE RISE TO
THE FIFTH AMENDMENT GUARANTEE.  WHEN A SUSPECT WAS BROUGHT BEFORE THE
COURT OF HIGH COMMISSION OR THE STAR CHAMBER, HE WAS COMMANDED TO
ANSWER WHATEVER WAS ASKED OF HIM, AND SUBJECTED TO A FAR-REACHING AND
DEEPLY PROBING INQUIRY IN AN EFFORT TO FERRET OUT SOME UNKNOWN AND
FREQUENTLY UNSUSPECTED CRIME.  HE DECLINED TO ANSWER ON PAIN OF
INCARCERATION, BANISHMENT, OR MUTILATION.  AND IF HE SPOKE FALSELY, HE
WAS SUBJECT TO FURTHER PUNISHMENT.  FACED WITH THIS FORMIDABLE ARRAY OF
ALTERNATIVES, HIS DECISION TO SPEAK WAS UNQUESTIONABLY COERCED.  (FN5)

THOSE WERE THE LURID REALITIES WHICH LAY BEHIND ENACTMENT OF THE
FIFTH AMENDMENT, A FAR CRY FROM THE SUBJECT MATTER OF THE CASE BEFORE
US.  I THINK THAT THE COURT IN THIS CASE STRETCHES THE CONCEPT OF
COMPULSION BEYOND ALL REASONABLE BOUNDS, AND THAT WHATEVER COMPULSION
MAY EXIST DERIVES FROM THE DEFENDANT'S CHOICE NOT TO TESTIFY, NOT FROM
ANY COMMENT BY COURT OR COUNSEL.  IN SUPPORT OF ITS CONCLUSION THAT THE
CALIFORNIA PROCEDURE DOES COMPEL THE ACCUSED TO TESTIFY, THE COURT HAS
ONLY THIS TO SAY:  "IT IS A PENALTY IMPOSED BY COURTS FOR EXERCISING A
CONSTITUTIONAL PRIVILEGE.  IT CUTS DOWN ON THE PRIVILEGE BY MAKING ITS
ASSERTION COSTLY."  EXACTLY WHAT THE PENALTY IMPOSED CONSISTS OF IS NOT
CLEAR.  IT IS NOT, AS I UNDERSTAND THE PROBLEM, THAT THE JURY BECOMES
AWARE THAT THE DEFENDANT HAS CHOSEN NOT TO TESTIFY IN HIS OWN DEFENSE,
FOR THE JURY WILL, OF COURSE, REALIZE THIS QUITE EVIDENT FACT, EVEN
THOUGH THE CHOICE GOES UNMENTIONED.  SINCE COMMENT BY COUNSEL AND THE
COURT DOES NOT COMPEL TESTIMONY BY CREATING SUCH AN AWARENESS, THE
COURT MUST BE SAYING THAT THE CALIFORNIA CONSTITUTIONAL PROVISION
PLACES SOME OTHER COMPULSION UPON THE DEFENDANT TO INCRIMINATE HIMSELF,
SOME COMPULSION WHICH THE COURT DOES NOT DESCRIBE AND WHICH I CANNOT
READILY PERCEIVE. 

IT IS NOT AT ALL APPARENT TO ME, ON ANY REALISTIC VIEW OF THE TRIAL
PROCESS, THAT A DEFENDANT WILL BE AT MORE OF A DISADVANTAGE UNDER THE
CALIFORNIA PRACTICE THAN HE WOULD BE IN A COURT WHICH PERMITTED NO
COMMENT AT ALL ON HIS FAILURE TO TAKE THE WITNESS STAND.  HOW CAN IT BE
SAID THAT THE INFERENCES DRAWN BY A JURY WILL BE MORE DETRIMENTAL TO A
DEFENDANT UNDER THE LIMITING AND CAREFULLY CONTROLLING LANGUAGE OF THE
INSTRUCTION HERE INVOLVED THAN WOULD RESULT IF THE JURY WERE LEFT TO
ROAM AT LARGE WITH ONLY ITS UNTUTORED INSTINCTS TO GUIDE IT, TO DRAW
FROM THE DEFENDANT'S SILENCE BROAD INFERENCES OF GUILT?  THE
INSTRUCTIONS IN THIS CASE EXPRESSLY CAUTIONED THE JURY THAT THE
DEFENDANT'S FAILURE TO TESTIFY "DOES NOT CREATE A PRESUMPTION OF GUILT
OR BY ITSELF WARRANT AN INFERENCE OF GUILT"; IT WAS FURTHER ADMONISHED
THAT SUCH FAILURE DOES NOT "RELIEVE THE PROSECUTION OF ITS BURDEN OF
PROVING EVERY ESSENTIAL ELEMENT OF THE CRIME," AND FINALLY THE TRIAL
JUDGE WARNED THAT THE PROSECUTION'S BURDEN REMAINED THAT OF PROOF
"BEYOND A REASONABLE DOUBT."  WHETHER THE SAME LIMITATIONS WOULD BE
OBSERVED BY A JURY WITHOUT THE BENEFIT OF PROTECTIVE INSTRUCTIONS
SHIELDING THE DEFENDANT IS CERTAINLY OPEN TO REAL DOUBT. 

MOREOVER, NO ONE CAN SAY WHERE THE BALANCE OF ADVANTAGE MIGHT LIE AS
A RESULT OF THE ATTORNEYS' DISCUSSION OF THE MATTER.  NO DOUBT THE
PROSECUTION'S ARGUMENT WILL SEEK TO ENCOURAGE THE DRAWING OF INFERENCES
UNFAVORABLE TO THE DEFENDANT.  HOWEVER, THE DEFENDANT'S COUNSEL EQUALLY
HAS AN OPPORTUNITY TO EXPLAIN THE VARIOUS OTHER REASONS WHY A DEFENDANT
MAY NOT WISH TO TAKE THE STAND, AND THUS REBUT THE NATURAL IF
UNEDUCATED ASSUMPTION THAT IT IS BECAUSE THE DEFENDANT CANNOT
TRUTHFULLY DENY THE ACCUSATIONS MADE. 

I THINK THE CALIFORNIA COMMENT RULE IS NOT A COERCIVE DEVICE WHICH
IMPAIRS THE RIGHT AGAINST SELF-INCRIMINATION, BUT RATHER A MEANS OF
ARTICULATING AND BRINGING INTO THE LIGHT OF RATIONAL DISCUSSION A FACT
INESCAPABLY IMPRESSED ON THE JURY'S CONSCIOUSNESS.  THE CALIFORNIA
PROCEDURE IS NOT ONLY DESIGNED TO PROTECT THE DEFENDANT AGAINST
UNWARRANTED INFERENCES WHICH MIGHT BE DRAWN BY AN UNINFORMED JURY; IT
IS ALSO AN ATTEMPT BY THE STATE TO RECOGNIZE AND ARTICULATE WHAT IT
BELIEVES TO BE THE NATURAL PROBATIVE FORCE OF CERTAIN FACTS.  SURELY NO
ONE WOULD DENY THAT THE STATE HAS AN IMPORTANT INTEREST IN THROWING THE
LIGHT OF RATIONAL DISCUSSION ON THAT WHICH TRANSPIRES IN THE COURSE OF
A TRIAL, BOTH TO PROTECT THE DEFENDANT FROM THE VERY REAL DANGERS OF
SILENCE AND TO SHAPE A LEGAL PROCESS DESIGNED TO ASCERTAIN THE TRUTH. 

THE CALIFORNIA RULE ALLOWING COMMENT BY COUNSEL AND INSTRUCTION BY
THE JUDGE ON THE DEFENDANT'S FAILURE TO TAKE THE STAND IS HARDLY AN
IDIOSYNCRATIC ABERRATION.  THE MODEL CODE OF EVIDENCE, AND THE UNIFORM
RULES OF EVIDENCE BOTH SANCTION THE USE OF SUCH PROCEDURES.  (FN6)  THE
PRACTICE HAS BEEN ENDORSED BY RESOLUTION OF THE AMERICAN BAR
ASSOCIATION AND THE AMERICAN LAW INSTITUTE, (FN7) AND HAS THE SUPPORT
OF THE WEIGHT OF SCHOLARLY OPINION.  (FN8) 

THE FORMULATION OF PROCEDURAL RULES TO GOVERN THE ADMINISTRATION OF
CRIMINAL JUSTICE IN THE VARIOUS STATES IS PROPERLY A MATTER OF LOCAL
CONCERN.  WE ARE CHARGED WITH NO GENERAL SUPERVISORY POWER OVER SUCH
MATTERS; OUR ONLY LEGITIMATE FUNCTION IS TO PREVENT VIOLATIONS OF THE
CONSTITUTION'S COMMANDS.  CALIFORNIA HAS HONORED THE CONSTITUTIONAL
COMMAND THAT NO PERSON SHALL "BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF."  THE PETITIONER WAS NOT COMPELLED TO TESTIFY,
AND HE DID NOT DO SO.  BUT WHENEVER IN A JURY TRIAL A DEFENDANT
EXERCISES THIS CONSTITUTIONAL RIGHT, THE MEMBERS OF THE JURY ARE BOUND
TO DRAW INFERENCES FROM HIS SILENCE.  NO CONSTITUTION CAN PREVENT THE
OPERATION OF THE HUMAN MIND.  WITHOUT LIMITING INSTRUCTIONS, THE DANGER
EXISTS THAT THE INFERENCES DRAWN BY THE JURY MAY BE UNFAIRLY BROAD. 
SOME STATES HAVE PERMITTED THIS DANGER TO GO UNCHECKED, BY FORBIDDING
ANY COMMENT AT ALL UPON THE DEFENDANT'S FAILURE TO TAKE THE WITNESS
STAND.  (FN9)  OTHER STATES HAVE DEALT WITH THIS DANGER IN A VARIETY OF
WAYS, AS THE COURT'S OPINION INDICATES.  ANTE, NOTE 3, AT PP. 611-612. 
SOME MIGHT DIFFER, AS A MATTER OF POLICY, WITH THE WAY CALIFORNIA HAS
CHOSEN TO DEAL WITH THE PROBLEM, OR EVEN DISAPPROVE OF THE JUDGE'S
SPECIFIC INSTRUCTIONS IN THIS CASE.  (FN10) BUT, SO LONG AS THE
CONSTITUTIONAL COMMAND IS OBEYED, SUCH MATTERS OF STATE POLICY ARE NOT
FOR THIS COURT TO DECIDE. 

I WOULD AFFIRM THE JUDGMENT. 

FN1  SEE THE EXCERPT FROM THE PROSECUTOR'S ARGUMENT QUOTED IN THE
COURT'S OPINION, ANTE, PP. 610-611. 

FN2  60 CAL. 2D 182, 383 P.2D 432.  AS THIS CASE WAS DECIDED BEFORE
MALLOY V. HOGAN, 378 U.S. 1, THE CALIFORNIA SUPREME COURT DID NOT GIVE
PLENARY CONSIDERATION TO THE QUESTION NOW BEFORE US; HOWEVER, THAT
COURT HAS SINCE UPHELD THE FEDERAL CONSTITUTIONALITY OF THE CALIFORNIA
COMMENT RULE IN A THOROUGHLY REASONED OPINION BY CHIEF JUSTICE
TRAYNOR.  PEOPLE V. MODESTO, 62 CAL 2D 436, 398 P.2D 753. 

FN3  IN THE ADAMSON CASE, THE PRESENT QUESTION WAS NOT REACHED
BECAUSE THE MAJORITY RULED THAT THE FIFTH AMENDMENT IS NOT APPLICABLE
TO THE STATES.  MR. JUSTICE REED'S OPINION MADE CLEAR THAT THE
CALIFORNIA RULE WAS ONLY ASSUMED TO CONTRAVENE THE FIFTH AMENDMENT,
"WITHOUT ANY INTENTION  ...  OF RULING UPON THE ISSUE."  THE DISSENTING
OPINION OF MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS READ THE MAJORITY
OPINION AS "STRONGLY IMPLYING THAT THE FIFTH AMENDMENT DOES NOT, OF
ITSELF, BAR COMMENT UPON FAILURE TO TESTIFY," BUT THEY CONSIDERED THE
CASE ON THE MAJORITY'S ASSUMPTION, THEREBY GIVING NO APPROVAL TO THAT
ASSUMPTION, EVEN IN DICTUM.  THAT NO SUCH APPROVAL WAS GIVEN BY THIS
DISSENTING OPINION IS FURTHER MADE EVIDENT BY THE FACT THAT MR. JUSTICE
MURPHY AND MR. JUSTICE RUTLEDGE, ALSO IN DISSENT, FELT IT NECESSARY TO
MAKE WHAT THEY CHARACTERIZED AS AN "ADDITION," AN EXPRESSION OF THEIR
VIEW THAT THE GUARANTEE AGAINST SELF-INCRIMINATION HAD BEEN VIOLATED IN
THE CASE.  MR. JUSTICE FRANKFURTER, IN CONCURRING, ALSO INDICATED THAT
HE WAS PREPARED TO AGREE THAT THE FIFTH AMENDMENT BARRED COMMENT, THUS
BRINGING TO THREE THE MEMBERS OF THE COURT WHO, IN DICTA, TOOK THE VIEW
EMBRACED BY THE COURT TODAY.    FN4  20 STAT. 30, AS AMENDED, NOW 18
U.S.C. SEC. 3481. 

FN5  SEE GENERALLY 8 WIGMORE, EVIDENCE SEC. 2250 (MCNAUGHTON REV. ED.
1961). 

FN6  MODEL CODE OF EVIDENCE, RULE 201 (1942); UNIFORM RULES OF
EVIDENCE, RULE 23(4) (1953). 

FN7  56 A.B.A. REP. 137-159 (1931); 59 A.B.A. REP. 130-141 (1934); 9
PROCEEDINGS A.L.I.  202, 203 (1931).    FN8  SEE BRUCE, THE RIGHT TO
COMMENT ON THE FAILURE OF THE DEFENDANT TO TESTIFY, 31 MICH. L. REV.
226; DUNMORE, COMMENT ON FAILURE OF ACCUSED TO TESTIFY, 26 YALE L.J.
464; HADLEY, CRIMINAL JUSTICE IN AMERICA, 11 A.B.A.J. 674, 677;
HISCOCK, CRIMINAL LAW AND PROCEDURES IN NEW YORK, 26 COL. L. REV. 253,
258-262; NOTE, COMMENT ON DEFENDANT'S FAILURE TO TAKE THE STAND, 57
YALE L.J. 145. 

FN9  SEE, E.G., STATE V. PEARCE, 56 MINN. 226, 57 N.W. 652; TINES V.
COMMONWEALTH, 25 KY. L. REP. 1233, 77 S.W. 363; HANKS V. COMMONWEALTH,
248 KY. 203, 58 S.W.2D 394. 

FN10  IT SHOULD BE NOTED THAT THE DEFENDANT'S COUNSEL DID NOT REQUEST
ANY ADDITIONS TO THE INSTRUCTIONS WHICH WOULD HAVE BROUGHT OUT OTHER
POSSIBLE REASONS WHICH MIGHT HAVE INFLUENCED THE DEFENDANT'S DECISION
NOT TO BECOME A WITNESS.  THE CALIFORNIA CONSTITUTION DOES NOT IN TERMS
PRESCRIBE WHAT FORM OF INSTRUCTION SHOULD BE GIVEN AND THE PETITIONER
HAS NOT ARGUED THAT ANOTHER FORM WOULD HAVE BEEN DENIED. 
..END :





















PARAGON JEWEL COAL CO. V. COMMISSION OF INTERNAL REVENUE 380 U.S. 624 


NO. 134.  ARGUED MARCH 8, 1965.  - DECIDED APRIL 28, 1965.* - 330 F.2D
161, REVERSED. 

*TOGETHER WITH NO. 237, COMMISSIONER OF INTERNAL REVENUE V. MERRITT
ET AL, ALSO ON CERTIORARI TO THE SAME COURT. 


PETITIONER PARAGON JEWEL COAL COMPANY (PARAGON), LESSEE OF COAL LANDS,
MADE SUBSTANTIAL INVESTMENTS PREPARATORY TO THE MINING OF THE COAL BUT
MADE AGREEMENTS WITH CONTRACT MINERS WHO WERE ACTUALLY TO MINE THE COAL
AT THEIR OWN EXPENSE AND DELIVER IT TO PARAGON AT A PRICE PER TON TO BE
FIXED BY PARAGON.  THE COAL WAS MINED DRIFT-MINING, A COSTLY AND TIME
CONSUMING PROCESS.  ALL EQUIPMENT USED BY THE MINERS EXCEPT BUILDINGS
AND CONNECTING ROADWAYS COULD BE REMOVED, AND SEVERAL MINERS, WHO WERE
NOT BOUND TO CONTINUE, SOLD THEIR EQUIPMENT TO OTHERS.  THE MINERS PAID
NOTHING FOR THE PRIVILEGE OF MINING, THEY ACQUIRED NO TITLE TO THE COAL
BEFORE OR AFTER MINING, AND THEY TOOK DEPRECIATION ON THEIR EQUIPMENT. 
BOTH PARAGON AND THE MINING CONTRACTORS CLAIMED A DEPLETION DEDUCTION
PURSUANT TO 26 U.S.C. SECS. 611 AND 613 IN COMPUTING INCOME TAXES, BUT
THE COMMISSIONER DISALLOWED BOTH CLAIMS.  THE TAX COURT HELD THAT
PARAGON WAS ENTITLED TO THE ENTIRE DEPLETION ALLOWANCE.  ALTHOUGH ON
APPEAL THE COMMISSIONER THEN CONTENDED THAT THE TAX COURT RESULT WAS
RIGHT, THE COURT OF APPEALS REVERSED.  HELD:  DEPLETION DEDUCTIONS ARE
ALLOWED ONLY TO THE OWNER OF AN ECONOMIC INTEREST IN THE MINERAL
DEPOSITS.  PP. 631-638. 

(A)  UNDER SEC. 611(B), READ IN THE LIGHT OF SEC. 631(C), THE LESSEE
IN A TYPICAL LESSOR-LESSEE ARRANGEMENT IS ENTITLED TO THE ENTIRE
DEPLETION ALLOWANCE ON THE GROSS INCOME FROM THE PROPERTY.  PP. 632
633. 

(B)  PARSONS V. SMITH, 359 U.S. 215, 225, SETS FORTH FACTORS TO BE
CONSIDERED IN DETERMINING WHETHER CONTRACT MINERS HAVE AN ECONOMIC
INTEREST IN THE COAL IN PLACE, WHICH ARE APPLICABLE HERE.  PP. 633
634. 

(C)  A TREASURY REGULATION BUTTRESSES THIS CONCLUSION.  IT PROVIDES
THAT AN AGREEMENT BETWEEN THE OWNER OF AN ECONOMIC INTEREST AND ANOTHER
ENTITLING THE LATTER TO COMPENSATION FOR EXTRACTION DOES NOT OF ITSELF
CONVEY A DEPLETABLE ECONOMIC INTEREST AND HAVING SURVIVED SUCCESSIVE
ENACTMENTS OF THE REVENUE CODE THE REGULATION IS ENTITLED TO GREAT
WEIGHT.  PP. 635-636. 

(D)  IN ADDITION THE SUBSEQUENT ENACTMENT OF SEC. 631(C), WHEN
CONTRASTED WITH SEC. 631(B), INDICATES THE INTENTION OF CONGRESS THAT
CONTRACT COAL MINERS WITHOUT MORE ARE NOT ENTITLED TO A TAX ALLOWANCE. 
PP. 636-637. 

(E)  COMMISSIONER V. SOUTHWEST EXPLORATION CO., 350 U.S. 308, BASED
UPON A STATUTE REQUIRING UPLAND DRILL SITES FOR DRILLING OFFSHORE OIL
AND A LEASE WITH UPLAND OWNERS PROVIDING FOR A PERCENTAGE OF NET
PROFITS, IS CLEARLY DISTINGUISHABLE.  PP. 637-638. 

PARAGON JEWEL COAL CO., INC. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THESE CONSOLIDATED TAX CASES IS WHETHER THE LESSEE (FN1)
OF COAL LANDS IS ENTITLED TO PERCENTAGE DEPLETION ON ALL THE GROSS
INCOME DERIVED FROM THE SALE OF THE COAL MINED FROM ITS LEASES, OR
WHETHER CONTRACT MINERS WHO DO THE ACTUAL MINING ACQUIRED A DEPLETABLE
INTEREST WITHIN THE MEANING OF SECS. 611 AND 613(B)(4) OF THE INTERNAL
REVENUE CODE OF 1954 TO THE EXTENT THEY WERE PAID BY THE LESSEE FOR
MINING AND DELIVERING COAL TO IT. 

THE MINING CONTRACTORS, RESPONDENTS IN NO. 237, CLAIMED AN ALLOCABLE
PORTION OF THE ALLOWANCE FOR THE YEARS 1954 THROUGH 1956, WHILE THE
LESSEE, PETITIONER IN NO. 134, CLAIMED THE RIGHT TO THE ENTIRE
DEPLETION DEDUCTION FOR 1955 THROUGH 1957.  IN EACH CASE THE DEDUCTION
WAS DENIED THE TAXPAYER.  HOWEVER, THE COMMISSIONER NOW TAKES THE
POSITION THAT THE LESSEE IS ENTITLED TO THE ENTIRE ALLOWANCE; (FN2) THE
TAX COURT SO HELD, 39 T.C. 257, BUT THE COURT OF APPEALS AGREED WITH
THE CONTRACTORS.  330 F.2D 161.  WE GRANTED CERTIORARI IN NO. 134, 379
U.S. 812, AND IN NO. 237, 379 U.S. 886, AND CONSOLIDATED THEM FOR
ARGUMENT.  WE HAVE CONCLUDED THAT THE TAX COURT WAS CORRECT AND REVERSE
THE JUDGMENT OF THE COURT OF APPEALS. 

THE PARTIES AGREE THAT THE PRINCIPLES OF OUR OPINION IN PARSONS V.
SMITH, 359 U.S. 215 (1959), ARE CONTROLLING HERE.  THERE WE HELD THAT
THE DEDUCTION IS ALLOWED IN RECOGNITION OF THE FACT THAT MINERAL
DEPOSITS ARE WASTING ASSETS AND THAT THE DEDUCTION IS INTENDED AS
COMPENSATION TO THE OWNER FOR THE PART USED IN PRODUCTION; THAT THERE
MAY BE MORE THAN ONE DEPLETABLE INTEREST IN THE SAME COAL DEPOSIT, BUT
THAT THE RIGHT TO AN ALLOCABLE PORTION OF THE ALLOWANCE DEPENDS ON THE
OWNERSHIP OF AN ECONOMIC INTEREST IN THE COAL IN PLACE SINCE THE
STATUTE MAKES THE DEDUCTION AVAILABLE ONLY TO THE OWNER OF A CAPITAL
INTEREST IN SUCH DEPOSIT; AND FINALLY, THAT THE LEGAL FORM OF SUCH
CAPITAL INTEREST IN UNIMPORTANT SO LONG AS IT CONSTITUTES A RIGHT WITH
REGARD TO THE COAL IN PLACE. 

THE PROBLEM ARISES IN APPLYING THOSE PRINCIPLES "ACCORDING TO THE
PECULIAR CONDITIONS IN EACH CASE."  (FN3)  THE MINING CONTRACTORS
CONTEND THAT THEY MADE A CAPITAL INVESTMENT IN THE COAL IN PLACE
BECAUSE OF THE NATURE AND EXTENT OF THEIR EXPENDITURES IN PREPARATION
FOR AND IN THE PERFORMANCE OF ORAL AGREEMENTS WHICH THEY CLAIM GRANTED
THEM THE RIGHT TO MINE CERTAIN DESIGNATED AREAS TO EXHAUSTION.  THEY
CONTEND THAT THEY COULD ONLY LOOK TO THE EXTRACTION AND SALE OF COAL
FOR A RETURN OF THEIR INVESTMENT, AND THUS THAT THE TEST OF PARSONS V.
SMITH, SUPRA, IS SATISFIED. 

PARAGON. ON THE OTHER HAND, SAYS THAT CONGRESS NEVER INTENDED FOR
CONTRACTORS MINING COAL TO HAVE A DEPLETABLE INTEREST AS EVIDENCED BY
STATUTORY ENACTMENTS ADOPTED SUBSEQUENT TO THE TAX YEARS INVOLVED IN
PARSONS V. SMITH, SUPRA; THAT IN THE CASE OF A LEASE THE LESSOR OF COAL
LANDS IS NO LONGER GRANTED A DEDUCTION FOR DEPLETION BUT IS RELEGATED
TO CAPITAL GAINS TREATMENT ONLY.  (FN4) AND, FINALLY, THAT THE
EXPENDITURES MADE BY THE CONTRACTORS WERE ONLY FOR EQUIPMENT WHICH THEY
DEPRECIATED AND COULD NOT CONSTITUTE AN INVESTMENT IN THE COAL IN PLACE
AS REQUIRED UNDER PARSONS V. SMITH, SUPRA.

THE COMMISSIONER OF INTERNAL REVENUE TAKES THE POSITION THAT ONLY A
TAXPAYER WITH A LEGALLY ENFORCEABLE RIGHT TO SHARE IN THE VALUE OF A
MINERAL DEPOSIT HAS A DEPLETABLE CAPITAL OR ECONOMIC INTEREST IN THAT
DEPOSIT AND THE CONTRACT MINERS IN THIS CASE HAD NO SUCH INTEREST IN
THE UNMINED COAL. 

                            THE FACTS. 

PARAGON TOOK AN ASSIGNMENT OF WRITTEN LEASES ON THE COAL IN AND UNDER
CERTAIN LANDS WHICH OBLIGATED IT TO PAY ANNUAL MINIMUM CASH ROYALTIES,
TONNAGE ROYALTIES, LAND TAXES, AND TO MINE ALL OR 85% OF THE MINABLE
COAL IN THE TRACTS.  IT MADE SUBSTANTIAL INVESTMENTS IN PREPARATION FOR
PROCESSING AND MARKETING THE COAL, INCLUDING CONSTRUCTION OF A TIPPLE,
A POWER LINE, A RAILROAD SIDING WITH FOUR SPURS AND THE PURCHASE OF
PROCESSING EQUIPMENT.  IT ALSO BUILT A ROAD FROM THE TIPPLE WHICH
CIRCLED THE MOUNTAIN CLOSE TO THE OUTCROP LINE OF COAL.  THIS ROAD WAS
USED TO TRUCK THE COAL FROM THE CONTRACTORS' MINES TO PARAGON'S
TIPPLE. 

PARAGON MADE ORAL AGREEMENTS WITH VARIOUS INDIVIDUALS AND FIRMS TO
MINE THE COAL IN ALLOCATED AREAS UNDER ITS LEASES.  THEY WERE TO MINE
THE COAL AT THEIR OWN EXPENSE AND DELIVER IT TO PARAGON'S TIPPLE AT A
FIXED FEE PER TON FOR MINING, LESS 2 1/2% FOR REJECTS.  IT WAS
UNDERSTOOD THAT THIS FEE MIGHT VARY FROM TIME TO TIME - AND IT DO SO -
DEPENDING SOMEWHAT ON THE GENERAL TREND OF THE MARKET PRICE FOR THE
COAL OVER EXTENDED PERIODS AND TO SOME EXTENT ON LABOR COSTS.  HOWEVER,
ANY CHANGES IN THE FIXED FEE WERE ALWAYS PROSPECTIVE, THE CONTRACTORS
BEING NOTIFIED SEVERAL DAYS IN ADVANCE OF ANY CHANGE SO THAT THEY
ALWAYS KNEW THE AMOUNT THEY WOULD GET FOR THE MINING OF THE COAL UPON
DELIVERY.  AFTER DELIVERY TO PARAGON'S TIPPLE THE CONTRACTOR HAD NO
FURTHER CONTROL OVER THE COAL, AND NO RESPONSIBILITY FOR ITS SALE OR IN
FIXING ITS PRICE.  THE FIXED FEE WAS EARNED AND PAYABLE UPON DELIVERY
AND THE CONTRACTORS DID NOT EVEN KNOW THE PRICE AT WHICH PARAGON SOLD. 

THE CONTRACTORS AGREED TO BUY POWER AT A FIXED RATE PER TON FROM
PARAGON'S LINE OR PUT IN THEIR OWN DIESEL ENGINE GENERATOR AND
COMPRESSORS.  A CERTAIN AMOUNT PER TON WAS ALSO PAID BY THE CONTRACTORS
FOR ENGINEERING SERVICES INSIDE THE MINE.  AN ENGINEER PROVIDED BY
PARAGON WAS USED TO MAP OUT OR SHOW EACH OF THE CONTRACTORS THE
PARTICULAR DIRECTION HIS MINE WAS TO TAKE, THE LOCATIONS OF ADJACENT
MINES, ETC.  THE SINGLE ENGINEER WAS UTILIZED FOR ALL OF THE MINES TO
ENSURE THAT THEY WOULD NOT RUN INTO EACH OTHER AND ALSO SO THAT NO
MINABLE COAL WOULD BE RENDERED UNRECOVERABLE BY HAPHAZARD MINING
METHODS.  PERIODICALLY, THE ENGINEER WOULD EXTEND HIS PROJECTIONS OF
THE MINE IN ORDER TO KEEP IT WITHIN THE CONTRACTOR'S ORIGINAL
LOCATION. 

BECAUSE OF THE NATURE OF THE COAL DEPOSITS, IT WAS NECESSARY TO USE
THE DRIFT-MINING METHOD (FN5) WHICH REQUIRES THE OPENING OF TWO
PARALLEL TUNNELS, ONE FOR VENTILATION AND THE OTHER FOR WORKING SPACE
AND REMOVAL OF COAL.  IN THIS TYPE OPERATION THE ROOF IS SUPPORTED BY
LEAVING PILLARS OF COAL IN PLACE AND ERECTING WOODEN SUPPORTS ABOUT
EVERY 18 INCHES.  (FN6)  HOWEVER, AS THE MINERS WITHDRAW FROM A MINE
WHERE THE COAL SEAM HAS BEEN EXHAUSTED, THEY TAKE OUT THE WOODEN
SUPPORTS AND ALSO REMOVE THE COAL PILLARS, THUS RECOVERING THE LAST BIT
OF MINABLE COAL.  BECAUSE OF THE METHOD USED IT OFTEN TAKES SIX TO
EIGHT WEEKS TO DEVELOP A MINE TO THE POINT WHERE IT CAN BE OPERATED
PROFITABLY. 

THE NATURE OF THE COAL DEPOSITS HERE INVOLVED WAS SUCH THAT THE
MINERS OFTEN ENCOUNTERED "A SANDSTONE ROLL" WHICH IS AN OUTCROP OF ROCK
WHICH "SQUEEZES" OUT THE COAL.  WHEN ONE OF THESE SITUATIONS IS
ENCOUNTERED THE MINERS MUST MOVE LARGE AMOUNTS OF ROCK TO REACH THE
COAL SEAM.  DURING THIS PERIOD, OF COURSE, THEY ARE RECEIVING NO MONEY
BECAUSE THEY ARE NOT DELIVERING MERCHANTABLE COAL TO PARAGON'S TIPPLE. 
(FN7)  AT OTHER TIMES, WATER MIGHT ACCUMULATE WHICH WOULD HAVE TO BE
PUMPED OUT BEFORE WORK COULD RESUME.  AGAIN, THE CONTRACT MINERS
RECEIVED NOTHING FOR THIS CLEARING OPERATION. 

AFTER THE COAL WAS REMOVED IT WAS PLACED IN THE CONTRACTOR'S BINS AT
THE ENTRANCE TO THE MINE AND WAS LATER TRUCKED OVER A CONNECTING
ROADWAY BUILT BY THE CONTRACTOR TO THE ADJACENT ROAD OF PARAGON AND
THEN TAKEN TO THE LATTER'S TIPPLE.  PARAGON TOOK ALL OF THE
MERCHANTABLE COAL MINED.  IF ITS FACILITIES WERE FULL AT THE MOMENT THE
CONTRACTOR WOULD FILL HIS OWN BINS AND THEN SHUT DOWN HIS MINE.  THE
RCORD SHOWS NO DELIVERIES BY THE CONTRACTORS TO ANYONE OTHER THAN
PARAGON. 

ALTHOUGH THERE WAS NOTHING SAID AT THE TIME OF THE ORAL CONTRACTS
REGARDING WHO WAS TO RECEIVE THE DEPLETION, THE TAX COURT FOUND THAT
PARAGON EXPECTED TO RECEIVE THAT DEDUCTION AND HAD FIXED ITS PER-TON
FEE FOR MINING WITH THIS IN MIND.  THE CONTRACTS WERE ALSO SILENT
REGARDING TERMINATION AND WERE APPARENTLY FOR AN INDEFINITE PERIOD. 
HOWEVER, NUMEROUS CONTRACTORS QUIT MINING, AND SOME SOLD THEIR
EQUIPMENT, BUILDINGS, TRACKS, ETC., TO OTHERS.  UNDER THE AGREEMENTS,
THOSE CEASING TO OPERATE COULD NOT REMOVE THE BUILDINGS, BUT COULD
REMOVE ALL OTHER EQUIPMENT.  IT WAS ANTICIPATED THAT THE CONTRACTORS
WOULD CONTINUE MINING IN THEIR ALLOCATED AREAS AS LONG AS IT WAS
PROFITABLE AND SO LONG AS PROPER MINING METHODS WERE USED AND THE COAL
MET PARAGON'S STANDARDS.  HOWEVER, THE CONTRACTORS WERE UNDER NO
OBLIGATION TO MINE ANY SPECIFIC AMOUNT OF COAL AND WERE NOT
SPECIFICALLY GIVEN THE RIGHT TO MINE ANY PARTICULAR AREA TO
EXHAUSTION. 

THE CONTRACTORS PAID NOTHING FOR THE PRIVILEGE OF MINING THE COAL;
THEY ACQUIRED NO TITLE TO THE COAL EITHER IN PLACE OR AFTER IT WAS
MINED; THEY PAID NONE OF THE ROYALTY OR LAND TAXES REQUIRED BY
PARAGON'S LEASES; THEY CLAIM NO SUBLEASE, NO CO-ADVENTURE, NO
PARTNERSHIP.  THEIR SOLE CLAIM TO ANY INTEREST IN THE COAL IN PLACE IS
BASED ON THEIR INVESTMENT IN EQUIPMENT, CONNECTING ROADWAYS, BUILDINGS
AND THE COSTS OF OPENING THE MINE, AND, IN SOME INSTANCES, ON THEIR
INSTALLATION OF TRACK INSIDE THE MINE TO REMOVE THE COAL.  THEY ADMIT,
HOWEVER, THAT ALL OF THIS WAS REMOVABLE, SAVE THE BUILDINGS AND THE
CONNECTING ROADWAYS, NEITHER OF WHICH REPRESENTED ANY APPRECIABLE
EXPENDITURE.  ALL OF THEIR EXPENDITURES WERE DEDUCTED EITHER AS DIRECT
COSTS, DEVELOPMENT COSTS, DEPRECIATION OF EQUIPMENT OR CAPITAL ASSETS. 

ON THE BASIS OF THESE FACTS THE TAX COURT CONCLUDED AS A MATTER OF
LAW THAT THE CONTRACTORS DID NOT HAVE A DEPLETABLE INTEREST UNDER THEIR
CONTRACTS.  THE COURT OF APPEALS ACCEPTED ALL OF THE TAX COURT'S
FINDINGS BUT HELD THAT THE LATTER ERRED IN ITS CONCLUSIONS.  IT
REVERSED ON THE BASIS THAT THE CONTRACTORS WERE "PERFORMING PARAGON'S
OBLIGATION UNDER ITS LEASES AND THIS CONSTITUTED AMPLE CONSIDERATION"
TOGETHER WITH THEIR "CONTINUING RIGHT TO PRODUCE THE COAL AND TO BE
PAID THEREFOR AT A PRICE WHICH WAS CLOSELY RELATED TO THE MARKET PRICE"
TO GIVE THEM "AN ECONOMIC INTEREST IN THE MINERAL BRINGING THEM WITHIN
THE RATIONALE OF PARSONS V. SMITH  ...  ."  AT 163.  WE BELIEVE THAT
THE COURT OF APPEALS WAS IN ERROR IN SO DOING. 

                   STATUTORY PROVISIONS FOR COAL DEPLETION. 

THIS COURT HAS OFTEN SAID THAT THE PURPOSE OF THE ALLOWANCE FOR
DEPLETION IS TO COMPENSATE THE OWNER OF WASTING MINERAL ASSETS FOR THE
PART EXHAUSTED IN PRODUCTION, SO THAT WHEN THE MINERALS ARE GONE, THE
OWNER'S CAPITAL AND HIS CAPITAL ASSETS REMAIN UNIMPAIRED.  UNITED
STATES V. CANNELTON SEWER PIPE CO., 364 U.S. 76, 81 (1960).  PERCENTAGE
DEPLETION FIRST CAME INTO THE TAX STRUCTURE IN 1926 AND HAS BEEN
CONSISTENTLY REGARDED AS A MATTER OF LEGISLATIVE GRACE.  (FN8)  WE,
THEREFORE, MUST LOOK TO THE CODE PROVISIONS AND REGULATIONS IN EFFECT
DURING THE YEARS INVOLVED TO DETERMINE WHETHER THESE CONTRACT COAL
MINERS ACQUIRED A DEPLETABLE INTEREST IN THE COAL IN PLACE. 

...  ACCORDING TO THE PECULIAR CONDITIONS IN EACH CASE; SUCH REASONABLE
ALLOWANCE IN ALL CASES TO BE MADE UNDER REGULATIONS PRESCRIBED BY THE
SECRETARY  ...  ."  THE PERTINENT REGULATION STATES: 

"(1)  ANNUAL DEPLETION DEDUCTIONS ARE ALLOWED ONLY TO THE OWNER OF AN
ECONOMIC INTEREST IN MINERAL DEPOSITS OR STANDING TIMBER.  AN ECONOMIC
INTEREST IS POSSESSED IN EVERY CASE IN WHICH THE TAXPAYER HAS ACQUIRED
BY INVESTMENT ANY INTEREST IN MINERAL IN PLACE OR STANDING TIMBER AND
SECURES, BY ANY FORM OF LEGAL RELATIONSHIP, INCOME DERIVED FROM THE
EXTRACTION OF THE MINERAL OR SEVERANCE OF THE TIMBER, TO WHICH HE MUST
LOOK FOR A RETURN OF HIS CAPITAL.  BUT A PERSON WHO HAS NO CAPITAL
INVESTMENT IN THE MINERAL DEPOSIT OR STANDING TIMBER DOES NOT POSSESS
AN ECONOMIC INTEREST MERELY BECAUSE THROUGH A CONTRACTUAL RELATION HE
POSSESSES A MERE ECONOMIC OR PECUNIARY ADVANTAGE DERIVED FROM
PRODUCTION.  FOR EXAMPLE, AN AGREEMENT BETWEEN THE OWNER OF AN ECONOMIC
INTEREST AND ANOTHER ENTITLING THE LATTER TO PURCHASE OR PROCESS THE
PRODUCT UPON PRODUCTION OR ENTITLING THE LATTER TO COMPENSATION FOR
EXTRACTION OR CUTTING DOES NOT CONVEY A DEPLETABLE ECONOMIC INTEREST
...  ."  TREAS. REG. SEC. 1.611-1(B)(1). 

ALLOWANCE BETWEEN THE LESSOR AND THE LESSEE IN THE CASE OF A LEASE. 
HOWEVER, SEC. 611(B) MUST NOW BE READ IN LIGHT OF SEC. 631(C) (FN9)
WHICH PROVIDES THAT AN OWNER WHO DISPOSES OF COAL UNDER ANY FORM OF
CONTRACT IN WHICH HE RETAINS AN ECONOMIC INTEREST SHALL NOT RECEIVE
PERCENTAGE DEPLETION, BUT INSTEAD MUST TAKE CAPITAL GAINS TREATMENT FOR
THE ROYALTIES RECEIVED UNDER THAT CONTRACT.  THE RESULT OF THIS IN THE
TYPICAL LESSOR-LESSEE SITUATION IS THAT THE LESSEE IS ENTITLED TO THE
ENTIRE DEPLETION ALLOWANCE ON THE GROSS INCOME FROM THE PROPERTY. 
RESPONDENT CONTRACT MINERS MAKE NO CONTENTION THAT THEY ARE LESSEES OR
THE SUBLESSEES OF PARAGON.    HOWEVER, THEY CLAIM THAT THEY ARE
ENTITLED TO A PORTION OF THE PERCENTAGE DEPLETION BECAUSE THEY HAVE
SOMEHOW ACQUIRED AN ECONOMIC INTEREST IN THE COAL IN PLACE.  THIS TEST
WAS FIRST ENUNCIATED IN PALMER V. BENDER, 287 U.S. 551, 557 (1933), AND
HAS SINCE BECOME THE TOUCHSTONE OF DECISIONS DETERMINING THE
ELIGIBILITY OF A PARTY TO SHARE IN THE DEPLETION ALLOWANCE.  THE
CONTRACT MINERS CONTEND THAT THEIR INVESTMENTS OF TIME AND MONEY IN
DEVELOPING THESE MINES BRING THEM WITHIN THE MEANING OF OUR CASES.  WE
BELIEVE THAT PARSONS V. SMITH, SUPRA, COMPLETELY SETTLES THIS QUESTION
AGAINST THEM. 

IN PARSONS, THE COURT ENUMERATED SEVEN FACTORS TO BE CONSIDERED IN
DETERMINING WHETHER THE COAL-MINING CONTRACTS THERE INVOLVED GAVE THE
CONTRACT MINERS ANY CAPITAL INVESTMENT OR ECONOMIC INTEREST IN THE COAL
IN PLACE.  THEY WERE: 

"(1) THAT THE CONTRACT MINERS' INVESTMENTS WERE IN THEIR EQUIPMENT,
ALL OF WHICH WAS MOVABLE - NOT IN THE COAL IN PLACE; (2) THAT THEIR
INVESTMENTS IN EQUIPMENT WERE RECOVERABLE THROUGH DEPRECIATION - NOT
DEPLETION; (3) THAT THE CONTRACTS WERE COMPLETELY TERMINABLE WITHOUT
CAUSE ON SHORT NOTICE; (4) THAT THE LANDOWNERS DID NOT AGREE TO
SURRENDER AND DID NOT ACTUALLY SURRENDER TO THE CONTRACT MINERS ANY
CAPITAL INTEREST IN THE COAL IN PLACE; (5) THAT THE COAL AT ALL TIMES,
EVEN AFTER IT WAS MINED, BELONGED ENTIRELY TO THE LANDOWNERS, AND THAT
THE CONTRACT MINERS COULD NOT SELL OR KEEP ANY OF IT BUT WERE REQUIRED
TO DELIVER ALL THEY THEY MINED TO THE LANDOWNERS; (6) THAT THE CONTRACT
MINERS WERE NOT TO HAVE ANY PART OF THE PROCEEDS OF THE SALE OF THE
COAL, BUT, ON THE CONTRARY, THEY WERE TO BE PAID A FIXED SUM FOR EACH
TON MINED AND DELIVERED  ...  ; AND (7) THAT THE CONTRACT MINERS, THUS,
AGREED TO LOOK ONLY TO THE LANDOWNERS FOR ALL SUMS TO BECOME DUE THEM
UNDER THEIR CONTRACTS."  AT 225. 

THE TAX COURT FOUND ALL OF THESE FACTORS PRESENT IN THIS CASE AND
RULED THEREFORE THAT PARSONS CONTROLLED. 

THE COURT OF APPEALS AGREED WITH THE CONTRACTORS' POSITION AND HELD,
CONTRARY TO THE TAX COURT, THAT THE CONTRACTS UNDER WHICH THEY MINED
THE COAL WERE NOT TERMINABLE AT THE WILL OF PARAGON BUT GAVE THE
CONTRACTORS "A CONTINUING RIGHT TO PRODUCE THE COAL AND TO BE PAID
THEREFOR AT A PRICE WHICH WAS CLOSELY RELATED TO THE MARKET PRICE."  IT
BASED ITS DECISION ON THE FACT THAT THE OPERATORS MADE "LARGE
EXPENDITURES OF TIME AND MONEY IN PREPARING THEIR RESPECTIVE SITES FOR
MINING" AND THAT "IT WOULD BE INEQUITABLE INDEED TO HOLD THAT PARAGON
MIGHT  ...  THEN TAKE THE BENEFIT OF THE OPERATORS' EFFORTS AT WILL AND
WITHOUT CAUSE."  AT 163.  WE REGRET THAT WE ARE UNABLE TO AGREE. 

IN PARSONS THE CONTRACT WAS EXPRESSLY TERMINABLE ON SHORT NOTICE;
HERE NO SPECIFIC RIGHT TO TERMINATE WAS MENTIONED IN THE AGREEMENT
BETWEEN THE PARTIES.  HOWEVER, AS THE COURT OF APPEALS NOTED, "THE
CONTRACTS DID NOT FIX UPON THE OPERATORS AN OBLIGATION TO MINE TO
EXHAUSTION."  IN FACT, MANY OF THEM QUIT AT ANY TIME THEY CHOSE.  WE
ARE UNABLE TO SAY THAT IT IS ANY MORE INEQUITABLE TO ALLOW PARAGON TO
TERMINATE THE CONTRACTS AT WILL THAN IT IS TO ALLOW THE CONTRACTORS TO
TERMINATE WORK AND THEREBY IMPOSE UPON PARAGON THE OBLIGATION TO GET
OTHER PEOPLE TO WORK THE MINE OR FORFEIT ITS RIGHT UNDER THE LEASES. 

IN ANY EVENT, THE RIGHT TO MINE EVEN TO EXHAUSTION, WITHOUT MORE,
DOES NOT CONSTITUTE A ECONOMIC INTEREST UNDER PARSONS, BUT IS "A MERE
ECONOMIC ADVANTAGE DERIVED FROM PRODUCTION, THROUGH A CONTRACTUAL
RELATION TO THE OWNER, BY ONE WHO HAS NO CAPITAL INVESTMENT IN THE
MINERAL DEPOSIT."  HELVERING V. BANKLINE OIL CO., 303 U.S. 362, 367
(1938). 

THE COURT BELOW ALSO INDICATED THAT IT DISAGREED WITH THE CONCLUSION
OF THE TAX COURT THAT PARAGON COULD SET THE PRICE AT ANY LEVEL IT CHOSE
UNDER THE AGREEMENTS.  IT STATED THAT THE CONTRACTORS WERE "TO BE PAID
THEREFOR AT A PRICE WHICH WAS CLOSELY RELATED TO THE MARKET PRICE." 
THE CONCLUSION OF THE TAX COURT WAS THAT WHILE THE FEE VARIED SOMEWHAT
WITH LABOR COSTS, "THERE WAS NO EVIDENCE THAT THE AMOUNT PAID BY
PARAGON WAS DIRECTLY RELATED EITHER TO THE PRICE IT WAS GETTING FOR THE
COAL OR TO THE SALES PRICE OF A PARTICULAR CONTRACTOR'S COAL, AND THE
AMOUNT WAS APPARENTLY CHANGEABLE AT THE WILL OF PARAGON."  39 T.C., AT
282.  AFTER AN EXAMINATION OF THE ENTIRE RECORD, WE CAN ONLY CONCLUDE
THAT PARAGON AT ALL TIMES RETAINED THE RIGHT TO CHANGE ITS FIXED FEE AT
WILL, AND AFTER DELIVERY TO THE TIPPLE, THE CONTRACTORS COULD ONLY RELY
ON PARAGON'S PERSONAL COVENANT TO PAY THE POSTED PRICE.  THIS IS
INSUFFICIENT.  AS WE SAID IN PALMER V. BENDER, 287 U.S. 551, 557
(1933), THE DEDUCTION IS ALLOWED ONLY TO ONE WHO "HAS ACQUIRED, BY
INVESTMENT, ANY INTEREST IN THE OIL IN PLACE, AND SECURES, BY ANY FORM
OF LEGAL RELATIONSHIP, INCOME DERIVED FROM THE EXTRACTION OF THE OIL,
TO WHICH HE MUST LOOK FOR A RETURN OF HIS CAPITAL."  HERE, PARAGON WAS
BOUND TO PAY THE POSTED FEE REGARDLESS OF THE CONDITION OF THE MARKET
AT THE TIME OF THE PARTICULAR DELIVERY AND THUS THE CONTRACT MINERS DID
NOT LOOK TO THE SALE OF THE COAL FOR A RETURN OF THEIR INVESTMENT, BUT
LOOKED SOLELY TO PARAGON TO ABIDE BY ITS CONVENANT. 

THIS CONSTRUCTION OF THE ACT AS TO COAL DEPLETION IS BUTTRESSED BY
THE LANGUAGE OF THE TREASURY REGULATIONS WHICH, BY EXAMPLE,
SPECIFICALLY PROVIDE THAT "AN AGREEMENT BETWEEN THE OWNER OF AN
ECONOMIC INTEREST AND ANOTHER ENTITLING THE LATTER TO  ...
COMPENSATION FOR EXTRACTION  ...  DOES NOT CONVEY A DEPLETABLE ECONOMIC
INTEREST."  THIS LANGUAGE WAS TAKEN ALMOST VERBATIM FROM HELVERING V.
BANKLINE OIL CO., 303 U.S. 362, 367 (1938), AND INCORPORATED IN THE
FIRST REGULATIONS UNDER THE INTERNAL REVENUE CODE OF 1939, AND SINCE
THAT TIME THERE HAVE BEEN NO MAJOR CHANGES IN THE ECONOMIC-INTEREST
VERSUS-ECONOMIC-ADVANTAGE PARAGRAPH.  COMPARE TREAS. REG. 103, SEC.
19.23(M)-1; TREAS. REG. 111, SEC. 29.23(M)-1; AND TREAS. REG. 118, SEC.
39.23(M)-1(A)-(B), WITH TREAS. REG. SEC. 1.611-1(B)(1).  THIS
REGULATION HAS SURVIVED THROUGH SUCCESSIVE AMENDMENTS OF THE INTERNAL
REVENUE CODE AND THEREFORE IS ENTITLED TO GREAT WEIGHT. 

FURTHER, WE BELIEVE THAT ADDITIONAL SUPPORT IS GIVEN TO OUR
CONSTRUCTION BY SUBSEQUENT STATUTORY ENACTMENTS.  AS NOTED ABOVE, AN
OWNER WHO BY CONTRACT DISPOSES OF THE COAL IN PLACE WHILE RETAINING AN
ECONOMIC INTEREST IS RELEGATED TO CAPITAL GAINS TREATMENT OF THE
ROYALTIES RECEIVED.  HOWEVER, EXEMPTIVE LANGUAGE IN SEC. 631(C) (FN10)
EXCLUDES AN OWNER WHO IS ALSO A CO-ADVENTURER, PARTNER OR PRINCIPAL IN
THE MINING OF COAL, THUS PERMITTING SUCH AN OWNER TO SECURE PERCENTAGE
DEPLETION.  "OWNER" IS DEFINED FOR PURPOSES OF THIS SUBSECTION AS "ANY
PERSON WHO OWNS AN ECONOMIC INTEREST IN COAL IN PLACE, INCLUDING A
SUBLESSOR."  WHILE PARAGON IS CERTAINLY AN OWNER OF AN ECONOMIC
INTEREST IN THE COAL, IT IS ALSO A PRINCIPAL IN THE MINING OF COAL AND
THUS COMES WITHIN THE EXEMPTION AND IS EXPRESSLY ALLOWED DEPLETION. 
THE CONTRACT MINERS DO NOT CLAIM, NOR WILL THE RECORD SUPPORT A
CONTENTION, THAT THEY ARE A "CO-ADVENTURER, PARTNER, OR PRINCIPAL."  IN
CONTRAST TO THE LANGUAGE OF SEC. 631(C), IT IS NOTED THAT IN TREATING
WITH TIMBER IN SEC. 631(B) AN "OWNER" IS ALLOWED CAPITAL GAINS INSTEAD
OF DEPLETION.  IN THIS INSTANCE "OWNER" IS DEFINED TO BE "ANY PERSON
WHO OWNS AN INTEREST IN SUCH TIMBER, INCLUDING A SUBLESSOR AND A HOLDER
OF A CONTRACT TO CUT TIMBER."  THIS LAST PHASE AS TO CONTRACTORS IS NOT
INCLUDED IN SEC. 631(C) THUS INDICATING THAT AS TO COAL, "OWNER" DOES
NOT INCLUDE CONTRACT COAL MINERS.  CLEARLY THE CONGRESS KNEW WHAT
LANGUAGE TO USE WHEN IT WISHED TO GIVE A CONTRACTOR A TAX ALLOWANCE. 
IT GAVE HOLDERS OF CONTRACTS TO CUT TIMBER CAPITAL GAINS TREATMENT IN
SEC. 631(B) BUT DID NOT SO PROVIDE FOR CONTRACT COAL MINERS IN SEC.
631(C). 

NOR DOES THE OPINION IN COMMISSIONER V. SOUTHWEST EXPLORATION CO.,
350 U.S. 308 (1956), UNDERCUT OUR CONCLUSION.  THERE THE STATE OF
CALIFORNIA REQUIRED THAT THE STATE'S OFFSHORE OIL MIGHT BE EXTRACTED
ONLY FROM WELLS DRILLED ON FILLED LANDS OR SLANT DRILLED FROM UPLAND
DRILL SITES TO THE SUBMERGED OIL DEPOSITS.  PURSUANT TO THAT STATUTE
SOUTHWEST ENTERED INTO AN AGREEMENT WITH UPLAND OWNERS WHEREBY IN THE
EVENT IT WAS AWARDED A LEASE BY THE STATE IT WAS GIVEN THE RIGHT TO USE
THE SURFACE OF THE UPLAND AS A BASE FOR ITS DERRICK AND DRILLING
OPERATION IN REACHING THE LEASED OIL PREMISES.  IN CONSIDERATION OF
THIS USE SOUTHWEST ASSIGNED TO THE UPLAND OWNERS, 24 1/2% OF THE NET
PROFITS DERIVED FROM THE OIL RECOVERED.  THIS AGREEMENT WAS THE SINE
QUA NON OF SOUTHWEST'S SECURING A LEASE TO DRILL THE SUBMERGED LAND
FROM THE STATE.  WE HELD THAT SOUTHWEST'S RIGHT TO DRILL BEING
EXPRESSLY CONDITIONED BY LAW UPON THE AGREEMENTS WITH THE UPLAND OWNERS
MADE THE LATTER ESSENTIAL PARTIES TO THE LEASE FROM THE STATE AND WAS A
SUFFICIENT INVESTMENT BY THEM IN THE OBTAINING OF THE LEASE TO GIVE
THEM AN ECONOMIC INTEREST IN THE OIL IN PLACE, WHICH INVESTMENT WAS
RECOVERABLE SOLELY THROUGH THE EXTRACTION OF THE OIL TO WHICH THEY HAD
TO LOOK FOR THE RETURN OF THEIR INVESTMENT.  HERE WE HAVE NO SUCH
STATUTE; THE CONTRACTORS HAD NO PART WHATEVER IN THE LEASE BUT WERE
WHOLLY DISASSOCIATED FROM IT; NO FIXED PERCENTAGE OF THE INCOME FROM
PARAGON'S LEASE WAS ASSIGNED TO THE CONTRACTORS; AND THE LATTER DID NOT
LOOK TO THE COAL BUT TO PARAGON FOR THEIR PAYMENT.  (FN11) 

FOR THESE REASONS THE JUDGMENT IS REVERSED.  IT IS SO ORDERED. 

FN1  PARAGON JEWEL COAL CO. WAS ACTUALLY AN ASSIGNEE OR SUBLESSEE OF
THE COAL LANDS IN THIS PARTICULAR CASE.  HOWEVER, THIS IS A FACTUAL
MATTER WITHOUT SIGNIFICANCE HERE, AND FOR PURPOSES OF CONVENIENCE IT
WILL BE REFERRED TO AS THE LESSEE THROUGHOUT THE OPINION. 

FN2 THE COMMISSIONER TOOK A NEUTRAL POSITION IN THE TAX COURT, BUT
CONTENDED BEFORE THE COURT OF APPEALS, AS HE DOES HERE, THAT THE LESSEE
IS ENTITLED TO THE DEPLETION DEDUCTION ON ALL THE GROSS INCOME DERIVED
FROM THE SALE OF COAL MINED FROM ITS LEASES. 

FN3  I.R.C. 1954, SEC. 611, 26 U.S.C. SEC. 611 (1958 ED.). 

FN4  I.R.C. 1954, SEC. 631(C), 26 U.S.C. SEC. 631(C) (1958 ED.). 

FN5  DRIFT MINING IS AN UNDERGOUND MINING OPERATION IN WHICH A
HORIZONTAL COAL SEAM IS REACHED BY CLEARING AWAY A PART OF THE
MOUNTAINSIDE WITH A BULLDOZER.  TWO OPENINGS ARE MADE INTO THE COAL
SEAM.  ONE IS AN ENTRY AND THE OTHER IS AN AIR COURSE USED TO VENTILATE
THE MINE.  COAL IS REMOVED AS THE DRIFT MINE IS DRIVEN INTO THE
MOUNTAIN FOLLOWING THE SEAM OF COAL. 

FN6  THIS SHORING UP PREVENTS CAVE-INS AND LIKE ALL SAFETY
REQUIREMENTS, BOTH STATE AND FEDERAL, WAS DONE AT THE MINERS' EXPENSE. 

FN7  PARAGON ON AT LEAST ONE OCCASION SHARED IN THE COST INCIDENT TO
GOING THROUGH A SANDSTONE ROLL OF UNUSUAL PROPORTIONS, BUT THAT WAS
APPARENTLY NOT THE PRACTICE. 

FN8  PARSONS V. SMITH, 359 U.S. 215, AND CASES CITED IN N. 5, AT
219. 

FN9  FOR THE TEXT OF SEC. 631(C) SEE N. 10, INFRA. 

FN10 SECTION 631(C) FOR THE PERTINENT PERIOD READ: 

"IN THE CASE OF THE DISPOSAL OF COAL (INCLUDING LIGNITE), HELD FOR
MORE THAN 6 MONTHS BEFORE SUCH DISPOSAL, BY THE OWNER THEREOF UNDER ANY
FORM OF CONTRACT BY VIRTUE OF WHICH SUCH OWNER RETAINS AN ECONOMIC
INTEREST IN SUCH COAL, THE DIFFERENCE BETWEEN THE AMOUNT REALIZED FROM
THE DISPOSAL OF SUCH COAL AND THE ADJUSTED DEPLETION BASIS THEREOF PLUS
THE DEDUCTIONS DISALLOWED FOR THE TAXABLE YEAR UNDER SECTION 272 SHALL
BE CONSIDERED AS THOUGH IT WERE A GAIN OR LOSS, AS THE CASE MAY BE, ON
THE SALE OF SUCH COAL.  SUCH OWNER SHALL NOT BE ENTITLED TO THE
ALLOWANCE FOR PERCENTAGE DEPLETION PROVIDED IN SECTION 613 WITH RESPECT
TO SUCH COAL.  THIS SUBSECTION SHALL NOT APPLY TO INCOME REALIZED BY
ANY OWNER AS A CO-ADVENTURER, PARTNER, OR PRINCIPAL IN THE MINING OF
SUCH COAL, AND THE WORD 'OWNER' MEANS ANY PERSON WHO OWNS AN ECONOMIC
INTEREST IN COAL IN PLACE, INCLUDING A SUBLESSOR.   THE DATE OF
DISPOSAL OF SUCH COAL SHALL BE DEEMED TO BE THE DATE SUCH COAL IS
MINED.  IN DETERMINING THE GROSS INCOME, THE ADJUSTED GROSS INCOME, OR
THE TAXABLE INCOME OF THE LESSEE, THE DEDUCTIONS ALLOWABLE WITH RESPECT
TO RENTS AND ROYALTIES SHALL BE DETERMINED WITHOUT REGARD TO THE
PROVISIONS OF THIS SUBSECTION.  THIS SUBSECTION SHALL HAVE NO
APPLICATION, FOR PURPOSES OF APPLYING SUBCHAPTER G, RELATING TO
CORPORATIONS USED TO AVOID INCOME TAX ON SHAREHOLDERS (INCLUDING THE
DETERMINATIONS OF THE AMOUNT OF THE DEDUCTIONS UNDER SECTION 535(B)(6)
OR SECTION 545(B)(5))." 

IT IS INTERESTING TO NOTE THAT WHEN SEC. 631(C) WAS AMENDED IN 1964
TO INCLUDE DOMESTIC IRON ORE CONGRESS DID NOT CHANGE THE LANGUAGE OF
THIS SECTION TO ALSO INCLUDE THOSE MINING SUCH ORE OR COAL UNDER A
CONTRACT SINCE IT HAD MADE PROVISION FOR SUCH CONTRACTORS IN SEC.
631(B) DEALING WITH TIMBER. 

FN11  WE SAID IN COMMISSIONER V. SOUTHWEST EXPLORATION CO., SUPRA, AT
317: 

"WE DECIDE ONLY THAT WHERE, IN THE CIRCUMSTANCES OF THIS CASE, A
PARTY ESSENTIAL TO THE DRILLING FOR AND EXTRACTION OF OIL HAS MADE AN
INDISPENSABLE CONTRIBUTION OF THE USE OF REAL PROPERTY ADJACENT TO THE
OIL DEPOSITS IN RETURN FOR A SHARE IN THE NET PROFITS FROM THE
PRODUCTION OF OIL, THAT PARTY HAS AN ECONOMIC INTEREST WHICH ENTITLES
HIM TO DEPLETION ON THE INCOME THUS RECEIVED." 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

I RESPECTFULLY DISSENT.  I CANNOT ACCEPT THE COURT'S FORMALISTIC VIEW
OF THE DEPLETION PROVISIONS OF THE INTERNAL REVENUE CODE OF 1954, SECS.
611, 613, AND 614, WHICH, AS APPLIED TO THIS CASE, WOULD GIVE THE
ENTIRE DEPLETION ALLOWANCE TO PARAGON, THE LESSEE OF THE COAL-BEARING
LAND.  I CANNOT AGREE WITH THE COURT'S DECISION THAT A LESSEE OF
MINERAL LANDS, WHOSE TOTAL INVESTMENT MAY CONSIST MERELY OF A PROMISE
TO PAY A SMALL ROYALTY FOR MINERALS PRODUCED, IS ENTITLED TO THE FULL
ALLOWANCE FOR DEPLETION AND THAT NO SHARE OF THIS ALLOWANCE IS TO BE
APPORTIONED TO A MINING COMPANY WITH SUBSTANTIAL INVESTMENT IN DIGGING
AND MAINTAINING A PARTICULAR COAL MINE. I BELIEVE THAT THE ISSUE IN
THIS CASE IS BASICALLY A SIMPLE ONE:  FOR PURPOSES OF THE DEPLETION
ALLOWANCE UNDER THE INTERNAL REVENUE CODE, SHOULD THE MINE OPERATORS
HERE BE VIEWED AS INDEPENDENT CONTRACTORS SELLING THEIR SERVICES TO
PARAGON, THE LESSEE, OR SHOULD THEY BE VIEWED AS ENTREPRENEURS
PARTICIPATING IN A TYPE OF JOINT VENTURE TO WHICH PARAGON CONTRIBUTES
ITS LEASE OF THE LAND AND CERTAIN NECESSARY EQUIPMENT AND FOR WHICH THE
MINE OPERATORS PROVIDE THE OTHER INVESTMENT NECESSARY TO OPEN AND RUN
THE MINES?  A LOOK THROUGH THE FORMAL LEGAL ARRANGEMENTS TO THE
UNDERLYING ECONOMIC REALITIES MAKES CLEAR THAT THE POSITION OF THE
MIENRS IS FAR CLOSER TO THAT OF THE ENTREPRENEUR PARTICIPATING IN A
JOINT VENTURE THAN TO THAT OF A SELLER OF SERVICES.  FOR THIS REASON, I
WOULD HOLD THAT THE MINERS HAVE "AN ECONOMIC INTEREST IN THE  ...
MINERAL, IN PLACE, WHICH IS DEPLETED BY PRODUCTION."  PALMER V. BENDER,
287 U.S. 551, 557, AND THEY ARE THEREFORE ENTITLED TO A FAIRLY
PROPORTIONED SHARE OF THE DEPLETION ALLOWANCE. 

THE FACTUAL SITUATION PRESENTED BY THIS CASE IS FAR DIFFERENT FROM
THAT CONSIDERED BY THE COURT IN PARSONS V. SMITH, 359 U.S. 215. 
PARSONS HELD THAT PERSONS CONTRACTING WITH THE OWNERS OF COAL-BEARING
LAND TO STRIP-MINE THE LAND WERE NOT ENTITLED TO AN ALLOWANCE FOR
DEPLETION.  PARSONS INVOLVED COMPARATIVELY LITTLE INVESTMENT IN ANY
PARTICULAR MINES.  THE COAL WAS OBTAINED THROUGH A STRIP-MINING PROCESS
WHICH CONSISTS OF REMOVING THE EARTH WHICH LIES OVER THE COAL, AND THEN
REMOVING THE COAL UNCOVERED.  THE ENTIRE INVESTMENT OF PETITIONERS IN
PARSONS TOOK THE FORM OF EQUIPMENT, SUCH AS MECHANICAL SHOVELS, TRUCKS
AND BULLDOZERS, WHICH "WAS MOVABLE AND USABLE ELSEWHERE IN STRIP MINING
AND  ...  FOR OTHER PURPOSES."  PARSONS V. SMITH, SUPRA, AT 219.  IN
FACT, ONE OF PETITIONERS IN PARSONS WAS PRIMARILY A ROAD-BUILDING
FIRM.  IT INSISTED UPON A CONTRACT TERMINABLE BY EITHER PARTY ON 10
DAYS' NOTICE SINCE, "'  ...  IF AN OPPORTUNITY OPENED UP, IT WANTED TO
GO BACK TO ROAD BUILDING.'"  ID., AT 216, FOR WHICH ITS SHOVELS AND
BULLDOZERS WERE PRIMARILY DESIGNED.  THE CONTRACTS OF BOTH PETITIONERS
IN PARSONS WERE MADE TERMINABLE ON VERY SHORT NOTICE.  THUS THE
STRIPPERS IN PARSONS WERE CLEARLY INDEPENDENT CONTRACTORS HIRED TO DO
THE STRIPPING, NOT ENTREPRENEURS WITH A FIXED INVESTMENT IN A
PARTICULAR MINE. 

ON THE OTHER HAND, THE MINES HERE INVOLVED WERE NOT STRIP MINES BUT
DEEP UNDERGROUND MINES.  THE MINE OPERATORS IN THE INSTANT CASE HAD TO
USE A DRIFT, RATHER THAN A STRIP, METHOD OF MINING.  UNLIKE A STRIP
MINE CONTRACTOR, WHO CAN BEGIN FULL PRODUCTION IMMEDIATELY UPON REMOVAL
OF THE OVERBURDEN WITH ONE EMPLOYEE AND A MECHANICAL SHOVEL, THE DRIFT
MINE OPERATORS HERE HAD TO EMPLOY A NUMBER OF MINERS AND SPEND MANY
MONTHS OPENING THE UNDERGROUND MINES.  THE OPERATIONS OF THE MINERS
HERE INCLUDED CUTTING SHAFTS, BUILDING A RAILROAD SPUR, OPENING
VENTILATION TUNNELS, SHORING THE ROOF OF THE MINE, REMOVING ROCK AND
UNMARKETABLE COAL, AND DEVELOPING ENTRIES, CROSS SECTIONS, ROOMS AND
AIR COURSES, ETC.  NORMALLY SIX TO EIGHT WEEKS WAS REQUIRED BEFORE ANY
MARKETABLE COAL WAS REACHED AND SEVERAL MONTHS BEFORE THE MINE REACHED
THE PRODUCTION (FN1) STAGE.  MOREOVER, EVEN AFTER THE PRODUCTION STAGE
WAS REACHED, THE MINERS HAD TO FACE AND PREPARE PILLARS OF COAL FOR
SUPPORT, AND FREQUENTLY THEY SPENT MANY WEEKS EXCAVATING WORTHLESS
"ROLLS" OF NONMARKETABLE ROCK OR REMOVING EXCESS WATER FROM THE MINES. 
ALL THIS ACTIVITY REQUIRED CONSIDERABLE CAPITAL INVESTMENT. 

KYVA AND STANDARD, THE TWO PARTNERSHIPS OF MINE OPERATORS INVOLVED
HERE, STATE WITHOUT CHALLENGE THAT AS OF THE END OF 1956, THEY HAD
INVESTED IN MACHINERY, $33,263.81 AND $26,901.30, RESPECTIVELY.   THEIR
EXPENSES DURING THEIR FIRST YEAR OF OPERATION WERE, RESPECTIVELY,
$76,036.64 AND $73,214.02.  THIS EXPENSE WAS PRIMARILY CAPITAL EXPENSE
REPRESENTING INVESTMENT IN THE MINE, MAKING IT READY FOR EXPLOITATION
OF THE COAL IN PLACE.  UNLIKE PARSONS WHERE THE BULLDOZERS, TRUCKS AND
SHOVELS WERE MOVABLE AND PRIMARILY DESIGNED FOR ROAD BUILDING AND OTHER
WORK, THE MAJOR PART OF THE MINE OPERATORS' CAPITAL INVESTMENT HERE
CONSISTED OF LABOR COSTS AND WAS USABLE ONLY IN THIS PARTICULAR
UNDERGROUND MINE OPERATION.  THE MINE OPERATORS COULD LOOK FOR A RETURN
OF THEIR INVESTMENT ONLY TO SALES OF THE COAL WHICH THEY WERE TO MINE. 
MOREOVER, THE COURT OF APPEALS HELD THAT PARAGON'S CONTRACTS WITH THE
OPERATORS WERE NOT TERMINABLE AT WILL OR UPON SHORT NOTICE, AND THAT
"THE OPERATORS HAD A CONTINUING RIGHT TO PRODUCE THE COAL AND TO BE
PAID THEREFOR AT A PRICE WHICH WAS CLOSELY RELATED TO THE MARKET
PRICE."  330 F.2D 161, 163.  UNDER THESE CIRCUMSTANCES I BELIEVE IT
UNDENIABLE THAT THE OPERATORS INVESTED CONSIDERABLE TIME, LABOR, AND
EQUIPMENT IN THE COAL IN PLACE.   IN ORDER TO EXTRACT THE MINERAL, THEY
POOLED THEIR RESOURCES, FUNDS, AND ENERGIES WITH PARAGON, WHICH
SUPPLIED ITS BASE INTEREST AND MADE OTHER INVESTMENT NECESSARY FOR
PROCESSING AND MARKETING THE COAL.  I WOULD HOLD, WITH THE COURT OF
APPEALS, THAT THE OPERATORS AS WELL AS PARAGON FIT WITHIN THE RULE
ENUNCIATED IN PALMER V. BENDER, SUPRA, AND FOLLOWED IN OTHER CASES,
(FN2) AND THAT THEY HAD AN ECONOMIC INTEREST IN THE MINERAL IN PLACE
WHICH ENTITLED THEM TO AN ALLOWANCE FOR DEPLETION. 

THE COURT TRIES TO ASSIMILATE THIS CASE TO PARSONS BY STATING THAT
PARAGON COULD HAVE TERMINATED THE INTEREST OF THE OPERATORS IN THE COAL
AT ANY TIME AND THAT THE OPERATORS HAD NO RIGHT TO MINE THEIR COAL
VEINS TO EXHAUSTION.  THE ACTUAL FACTS, HOWEVER, REVEAL THAT PARAGON
HAS NEVER TAKEN STEPS, NOR GIVEN THE SLIGHTEST INTIMATION THAT IT MIGHT
TAKE STEPS, TO TERMINATE ANYONE'S CONTRACT.  AS A MATTER OF PRACTICAL
FACT THE OPERATORS COULD COUNT ON MINING THE COAL VEIN SO LONG AS COAL
REMAINED AND SELLING THAT COAL TO PARAGON AT A RATE WHICH VARIED
SLIGHTLY WITH THE MARKET PRICE OF COAL.  ADDITIONALLY, THE COURT OF
APPEALS FOUND THAT THE OPERATORS HAD "A RIGHT TO MINE TO EXHAUSTION,"
AND A "CONTINUING RIGHT TO PRODUCE THE COAL AND TO BE PAID THEREFOR AT
A PRICE WHICH WAS CLOSELY RELATED TO THE MARKET PRICE."  330 F.2D, AT
163.  WHETHER OR NOT THE ACTIONS OF THE PARTIES WOULD PRODUCE THESE
LEGAL RESULTS IS, OF COURSE, A QUESTION OF STATE LAW.  AND, IT IS A
CLEAR RULE OF LONG STANDING THAT THIS COURT, IN THE ABSENCE OF
EXCEPTIONAL CIRCUMSTANCES, ACCEPTS THE DETERMINATIONS OF THE COURT OF
APPEALS, THE MEMBERS OF WHICH ARE CLOSER TO THE LOCAL SCENE THAN WE, ON
QUESTIONS OF LOCAL LAW.  GENERAL BOX CO. V. UNITED STATES, 351 U.S.
159, 165; ALLEGHENY COUNTY V. FRANK MASHUDA CO., 360 U.S. 185, 191;
RAGAN V. MERCHANTS TRANSFER CO., 337 U.S. 530, 534.  MOREOVER, IN VIEW
OF THE OPERATORS' CONSIDERABLE INVESTMENT IN THE MINES AND THEIR
SUBSTANTIAL RELIANCE ON BEING ABLE TO WORK THOSE MINES, I SHOULD BE
MOST SURPRISED WERE STATE COURTS, CONTRARY TO THE VIEW OF THE COURT OF
APPEALS, TO ALLOW PARAGON TO TERMINATE THE CONTRACTS AT WILL OR TO
LOWER DRASTICALLY THE PRICE IT PAID FOR THE COAL DELIBERATELY IN ORDER
TO DRIVE PARTICULAR OPERATORS OUT OF BUSINESS.  THUS THIS CASE DIFFERS
FROM PARSONS NOT ONLY BECAUSE HERE THE OPERATORS HAD A SUBSTANTIAL
FIXED AND UNMOVABLE INVESTMENT IN EACH PARTICULAR MINE, BUT ALSO
BECAUSE HERE THE OPERATORS HAD A RIGHT TO MINE THE COAL UNTIL IT WAS
EXHAUSTED IN ORDER TO ATTEMPT TO RECOVER THEIR INVESTMENT AND MAKE A
PROFIT.  IN PARSONS, AS I HAVE NOTED, IT WAS THE STRIP OPERATOR ITSELF
WHICH INSISTED UPON TERMINABILITY SO THAT IT WOULD BE FREE TO MOVE ITS
EQUIPMENT TO MORE PROFITABLE AND UNRELATED OPPORTUNITIES. 

THE COURT, IN REACHING ITS RESULTS, RELIES UPON TREASURY REGULATIONS
SEC. 1.611-(B)(1) AND HELVERING V. BANKLINE OIL CO., 303 U.S. 362. 
WITH ALL DEFERENCE I DO NOT BELIEVE THAT EITHER THE REGULATION OR
BANKLINE OIL BEARS SIGNIFICANTLY UPON THE ISSUE HERE PRESENTED.  THE
REGULATION IN ITS ENTIRETY MAKES CLEAR THAT "AN ECONOMIC INTEREST IS
POSSESSED IN EVERY CASE IN WHICH THE TAXPAYER HAS ACQUIRED BY
INVESTMENT ANY INTEREST IN MINERAL IN PLACE  ...  AND SECURES, BY ANY
FORM OF LEGAL RELATIONSHIP, INCOME DERIVED FROM THE EXTRACTION OF THE
MINERAL  ...  .  BUT A PERSON WHO HAS NO CAPITAL INVESTMENT IN THE
MINERAL DEPOSIT  ...  DOES NOT POSSESS AN ECONOMIC INTEREST MERELY
BECAUSE THROUGH A CONTRACTUAL RELATION HE POSSESSES A MERE ECONOMIC OR
PECUNIARY ADVANTAGE DERIVED FROM PRODUCTION."  (FN3)  THE REGULATION
THUS INDICATES THAT THE QUESTION TO BE ASKED IS WHETHER THE MINE
OPERATORS HAVE A SIGNIFICANT INVESTMENT IN THE COAL IN PLACE.  I THINK
IT CLEAR FROM THE FACTS I HAVE RECITED THAT THEIR INVESTMENT HAS GIVEN
THEM AN ECONOMIC INTEREST IN THE COAL.  BANKLINE OIL HELD THAT A
PROCESSOR OF NATURAL GAS WHO RECEIVED THE GAS AT THE MOUTH OF THE WELL
AND "'  ...  HAD NO ENFORCEABLE RIGHTS WHATSOEVER UNDER ITS CONTRACTS
PRIOR TO THE TIME THE WET GAS WAS ACTUALLY PLACED IN ITS PIPE LINE,'"
"HAD NO CAPITAL INVESTMENT IN THE MINERAL DEPOSIT," FOR HE "HAD NO
INTEREST IN THE GAS IN PLACE."  303 U.S., AT 368.  THE FACTS THAT "THE
TAXPAYER'S CAPITAL INVESTMENT WAS IN EQUIPMENT FACILITATING DELIVERY OF
THE GAS PRODUCED RATHER THAN IN EQUIPMENT FOR PRODUCTION OF GAS,  ...
THAT ITS FUNCTION WAS NOT PRODUCTION OF GAS BUT THE PROCESSING OF GAS,"
G.C.M. 22730, 1941-1 CUM. BULL.  214, 220, AND THAT THE TAXPAYER HAD NO
ENFORCIBLE RIGHT TO RECEIVE ANY GAS FROM THE WELL, (FN4) ALL ADEQUATELY
DISTINGUISH BANKLINE OIL FROM THE CASE HERE BEFORE US. 

FURTHER, I FIND THIS CASE VIRTUALLY INDISTINGUISHABLE FROM
COMMISSIONER V. SOUTHWEST EXPLORATION CO., 350 U.S. 308.  IN SOUTHWEST
EXPLORATION, OWNERS OF UPLANDS NEXT TO OFFSHORE OIL DRILLING SITES
ALLOWED DRILLERS TO USE THEIR LAND AS A BASE FOR OFFSHORE DRILLING
OPERATIONS IN RETURN FOR 24 1/2% OF THE NET PROFITS DERIVED FROM THE
OIL RECOVERED.  THOUGH NO OIL LAY UNDER THE OWNERS' LAND, UNDER
CALIFORNIA LAW OFFSHORE OIL COULD BE EXTRACTED ONLY FROM FILLED LANDS
OR BY SLANT DRILLING FROM UPLAND DRILL SITES.  THE COURT HELD, BECAUSE
THE OWNERS OF THE UPLAND SITES HAD CONTRIBUTED THE USE OF THEIR LAND,
NECESSARY FOR THE EXTRACTION OF THE OIL, IN RETURN FOR A SHARE IN THE
NET PROFITS FROM THE PRODUCTION OF OIL, THAT THEY HAD "AN ECONOMIC
INTEREST WHICH ENTITLED  ...  THEM TO DEPLETION ON THE INCOME THUS
RECEIVED."  350 U.S., AT 317.  THE COAL MINE OPERATORS IN THIS CASE
MADE AS SIGNIFICANT AN INVESTMENT IN THE MINE AS DID THE UPLAND OWNERS
IN SOUTHWEST EXPLORATION.  THEIR CONSTIBUTION WAS AS NECESSARY FOR THE
EXTRACTION OF THE COAL AS WAS THE LAND FOR THE EXTRACTION OF THE OIL. 
THEY WERE DEPENDENT UPON THE COAL FOR THE RECOUPMENT OF THEIR
INVESTMENT AS WERE THE LANDOWNERS UPON THE OIL.  THOUGH THE MINE
OPERATORS HAD LITTLE CONTROL OVER WHO BOUGHT THE COAL, THERE IS NO
INDICATION THAT THE LANDOWNERS HAD ANY CONTROL OVER WHO BOUGHT THE
OIL.  AND THE MINE OPERATORS MADE A SUBSTANTIAL INVESTMENT IN THE MINE
NOT AN INVESTMENT IN MACHINERY WHICH COULD BE MOVED FROM PLACE TO
PLACE OR MINE TO MINE, BUT A FIXED INVESTMENT OF TIME AND LABOR IN
OPENING AND DEVELOPING THE MINE.  THE COAL MINE OPERATORS COULD LOOK
ONLY TO A SALE OF THE COAL FOR THE RETURN OF THEIR INVESTMENT. 

THE COURT ALSO ATTEMPTS TO DRAW SUPPORT FROM SECS. 631(B) AND (C) OF
THE INTERNAL REVENUE CODE OF 1954 AS SHOWING A CONGRESSIONAL INTENT NOT
TO ALLOW MINE OPERATORS TO SHARE IN THE DEPLETION ALLOWANCE.  THESE
THE DEPLETION ALLOWANCE HERE UNDER CONSIDERATION.  THEY STATE ONLY THAT
THE HOLDERS OF CERTAIN PASSIVE KINDS OF INCOME INTEREST, SUCH AS
ROYALTY INTERESTS IN COAL LIKE THAT OF THE LESSOR IN THIS CASE -
INTERESTS QUITE UNLIKE THOSE OWNED EITHER BY PARAGON OR THE MINE
OPERATORS HERE - WILL NOT RECEIVE ANY ALLOWANCE FOR DEPLETION BUT
INSTEAD WILL RECEIVE CAPITAL GAINS TREATMENT FOR THEIR INCOME.  SEE S.
REP. NO. 781, 82D CONG., 1ST SESS., 43.  SECTION 631(B), A RATHER
LENGTHY SUBSECTION, PROVIDES CAPITAL GAINS TREATMENT FOR THE INCOME OF
CERTAIN PASSIVE OWNERS OF TIMBER INTERESTS AND STATES IN PART THAT "FOR
PURPOSES OF THIS SUBSECTION, THE TERM 'OWNER' MEANS ANY PERSON WHO OWNS
AN INTEREST IN SUCH TIMBER, INCLUDING A SUBLESSOR AND A HOLDER OF A
CONTRACT TO CUT TIMBER."  THIS DEFINITION, BY ITS VERY TERMS, APPLIES
ONLY TO SEC. 631(B), A SECTION WITH NO BEARING ON THE QUESTION AT ISSUE
HERE.  SECTION 631(C), ALSO A LENGTHY SUBSECTION, PROVIDES FOR CAPITAL
GAINS TREATMENT FOR INCOME ARISING FROM COAL ROYALTIES.  TO MAKE
CERTAIN THAT ONLY PASSIVE HOLDERS OF ROYALTIES RECEIVED CAPITAL GAINS
TREATMENT AND THAT HOLDERS OF WORKING INTERESTS DID NOT RECEIVE CAPITAL
GAINS TREATMENT BUT INSTEAD RECEIVED A DEPLETION ALLOWANCE, CONGRESS
SPECIFICALLY EXCLUDED HOLDERS OF WORKING INTERESTS FROM THE COVERAGE OF
SEC. 631(C).  CONGRESS STATED THAT CERTAIN OWNERS OF ROYALTY INTERESTS
WOULD RECEIVE CAPITAL GAINS TREATMENT, BUT STATED THAT "THIS SUBSECTION
SHALL NOT APPLY TO INCOME REALIZED BY ANY OWNER AS A CO-ADVENTURER,
PARTNER, OR PRINCIPAL IN THE MINING OF SUCH COAL, AND THE OWRD 'OWNER'
MEANS ANY PERSON WHO OWNS AN ECONOMIC INTEREST IN COAL IN PLACE,
INCLUDING A SUBLESSOR."  THIS DEFINITION IS MEANT TO EXCLUDE FROM THE
COVERAGE OF SEC. 631(C) NOT ONLY MINE OPERATORS, BUT ALSO LESSEES SUCH
AS PARAGON, WHOSE INCOME DOES NOT ARISE FROM PASSIVE ROYALTIES.  IN MY
VIEW, THIS SENTENCE ADEQUATELY DOES THE JOB CONGRESS INTENDED FOR IT TO
DO, FOR THE INCOME OF BOTH MINE OPERATORS AND LESSEES FALLS WITHIN THE
SCOPE OF "INCOME REALIZED BY ANY OWNER AS A CO-ADVENTURER, PARTNER, OR
PRINCIPAL IN THE MINING OF SUCH COAL."  SEE S. REP. NO. 781, SUPRA, AT
43.   (FN5) 

EVEN WERE I TO ASSUME THAT THE DEFINITIONS OF "OWNER" IN SECS. 631(B)
AND (C) HAVE A MORE DIRECT BEARING UPON SECS. 611, 613, AND 614, THE
WOULD NOT SHOW THAT CONGRESS DID NOT INTEND TO GRANT CONTRACT MINERS
FOR COAL ANY DEPLETION ALLOWANCE.  "A HOLDER OF A CONTRACT TO CUT
TIMBER" MAY WELL HAVE BEEN INCLUDED SPECIFICALLY IN SEC. 631(B)'S
DEFINITION BECAUSE CONGRESS WISHED TO MAKE CRYSTAL CLEAR THAT ALL
HOLDERS OF CONTRACTS TO CUT TIMBER WERE TO RECEIVE CAPITAL GAINS
TREATMENT FOR THEIR INCOME.  SEE H.R. REP. NO. 1337, 83D CONG., 2D
SESS., 59.  CONGRESS MAY NOT HAVE INCLUDED A SIMILAR PROVISION IN SEC.
631(C) BECAUSE IT DID NOT BELIEVE THAT THE STRIP MINER, WHOSE FUNCTION
IS SIMILAR TO THAT OF THE HOLDER OF A CONTRACT TO CUT TIMBER, SHOULD BE
BROUGHT WITHIN THE COVERAGE OF SEC. 631(C), OR CONGRESS MAY HAVE FELT
THAT SINCE LESSEES SUCH AS PARAGON WERE NOT INCLUDED WITHIN THE
COVERAGE OF SEC. 631(C), HOLDERS OF CONTRACTS TO MINE COAL SHOULD
SIMILARLY NOT HAVE THEIR INCOME TREATED AS A CAPITAL GAIN; OR THE ISSUE
OF ACCORDING CAPITAL GAINS TREATMENT TO THE INCOME OF CONTRACT MINE
OPERATORS MIGHT NOT HAVE BEEN BEFORE THE COMMITTEE WHEN SEC. 631 WAS
BEING DRAFTED.  IF SECS. 631(B) AND (C) HAVE ANY RELEVANCE TO THIS
CASE, IT MUST BE IN THE FACT THAT SEC. 631(C) DEFINES AN OWNER AS A
PERSON "WHO OWNS AN ECONOMIC INTEREST IN COAL IN PLACE", THUS
INDICATING A SPECIFIC CONGRESSIONAL INTENT THAT FORMAL LEGAL OWNERSHIP
OF THE MINERAL SHOULD NOT BE CONTROLLING. 

FINALLY, IT IS ARGUED THAT THE OPERATORS WERE ABLE TO RECOVER THEIR
INVESTMENTS THROUGH DEPRECIATION AND TO ALLOW THEM DEPLETION AS WELL
WOULD BE TO PERMIT A DOUBLE RECOVERY OF THEIR COSTS.  THIS ARGUMENT
OVERLOOKS THE FACT THAT PARAGON TOO IS ABLE TO RECOVER EVERY CENT OF
ITS INVESTMENT THROUGH DEPRECIATION AND AMORTIZATION ALLOWANCES IN
ADDITION TO DEPLETION.  THE ONLY INVESTMENT MADE BY PARAGON WHICH MIGHT
BE CONSIDERED DIFFERENT IN KIND FROM THAT OF THE MINE OPERATORS IS
PARAGON'S PROMISE TO PAY A ROYALTY TO ITS LESSORS OF BETWEEN 30 AND 40
CENTS PER TON OF COAL.  (FN6)  THIS ROYALTY WAS FULLY DEDUCTIBLE FROM
PARAGON'S INCOME.  DESPITE THE FACT THAT TO ALLOW A LESSEE TO SHARE IN
THE DEPLETION ALLOWANCE IS TO ALLOW A DOUBLE DEDUCTION, CONGRESS
AFFIRMATIVELY STATED ITS INTENT TO ALLOW LESSEES OF LAND TO SHARE IN
THIS ALLOWANCE.  SEE INTERNAL REVENUE CODE OF 1954, SEC. 611(B)(1). 
PERHAPS ALLOWING BOTH A DEPLETION ALLOWANCE AND DEPRECIATION IS
INEQUITABLE, BUT THIS IS A CONGRESSIONAL DECISION WHICH IS NOT FOR US
TO QUESTION. 

I CONCLUDE THAT THE DEPLETION ALLOWANCE SHOULD BE PROPERLY
APPORTIONED BETWEEN THE LESSEE AND THE COAL MINE OPERATORS.  THE
OPERATORS WERE NOT EMPLOYEES OR INDEPENDENT CONTRACTORS HIRED TO
PERFORM SERVICES.  UNLIKE A MAN HIRED TO MOW A LAWN, OR SHOVEL SNOW, OR
STRIP-MINE COAL, THEY MADE A SUBSTANTIAL INVESTMENT IN OPENING AND
DEVELOPING EACH INDIVIDUAL MINE AND COULD LOOK ONLY TO PROCEEDS OF THE
SALE OF COAL EXTRACTED FOR A RETURN OF THAT INVESTMENT.  UNDER THESE
CIRCUMSTANCES I BELIEVE THAT THE OPERATORS MEET THE TEST OF PALMER V.
BENDER, SUPRA, WHICH UNDISPUTEDLY APPLIES HERE, FOR THEY HAVE "AN
ECONOMIC INTEREST IN THE  ...  COAL, IN PLACE, WHICH IS DEPLETED BY
PRODUCTION."  287 U.S., AT 557.  WHILE, CLEARLY, THE "PHRASE 'ECONOMIC
INTEREST' IS NOT TO BE TAKEN AS EMBRACING A MERE ECONOMIC ADVANTAGE
DERIVED FROM PRODUCTION."  HELVERING V. BANKLINE OIL CO., 303 U.S. 362,
367, THE OPERATORS HERE, UNLIKE THE STRIP MINERS IN PARSONS, DO NOT
MERELY DERIVE AN ECONOMIC ADVANTAGE THROUGH PRODUCTION; THEY ALSO HAVE
A SUBSTANTIAL CAPITAL INVESTMENT IN THE MINERAL IN PLACE.  TO REFUSE TO
RECOGNIZE THIS MERELY BECAUSE THE OPERATORS DO NOT HOLD LEGAL TITLE TO
THE COAL IS, IN MY VIEW, A BLIND FOLLOWING OF FORM, WHICH I CANNOT
ACCEPT.  (FN7)  TO HOLD THAT THE OPERATORS HERE ARE, IN FACT, LIKE
SELLERS OF SERVICES IS EQUALLY UNREALISTIC.  I WOULD ACCEPT THE SOUND
VIEW OF THE COURT OF APPEALS - THE MEMBERS OF WHICH COME FROM LOCAL
MINING AREAS - THAT THE OPERATORS ARE SUBSTANTIAL INVESTORS IN THE
COAL, AND, IN ACCORDANCE WITH WHAT I BELIEVE TO BE THE INTENT OF
CONGRESS, I WOULD REQUIRE THAT THEY BE PERMITTED A SHARE OF THE
ALLOWANCE FOR DEPLETION. 

FN1  FOR THE APPLICABLE DEFINITION OF PRODUCTION STAGE, SEE TREAS.
REG. SEC. 1.616-2(B). 

FN2  SEE, E.G., BURTON-SUTTON OIL CO. V. COMMISSIONER, 328 U.S. 25,
32; KIRBY PETROLEUM CO. V. COMMISSIONER, 326 U.S. 599, 603; HELVERING
V. O'DONNELL, 303 U.S. 370, 371; THOMAS V. PERKINS, 301 U.S. 655, 661. 

FN3  TREAS. REG. SEC. 1.611-1(B)(1) READS AS FOLLOWS: 

"ANNUAL DEPLETION DEDUCTIONS ARE ALLOWED ONLY TO THE OWNER OF AN
ECONOMIC INTEREST IN MINERAL DEPOSITS OR STANDING TIMBER.  AN ECONOMIC
INTEREST IS POSSESSED IN EVERY CASE IN WHICH THE TAXPAYER HAS ACQUIRED
BY INVESTMENT ANY INTEREST IN MINERAL IN PLACE OR STANDING TIMBER AND
SECURES, BY ANY FORM OF LEGAL RELATIONSHIP, INCOME DERIVED FROM THE
EXTRACTION OF THE MINERAL OR SEVERANCE OF THE TIMBER, TO WHICH HE MUST
LOOK FOR A RETURN OF HIS CAPITAL.  BUT A PERSON WHO HAS NO CAPITAL
INVESTMENT IN THE MINERAL DEPOSIT OR STANDING TIMBER DOES NOT POSSESS
AN ECONOMIC INTEREST MERELY BECAUSE THROUGH A CONTRACTUAL RELATION HE
POSSESSES A MERE ECONOMIC OR PECUNIARY ADVANTAGE DERIVED FORM
PRODUCTION.  FOR EXAMPLE, AN AGREEMENT BETWEEN THE OWNER OF AN ECONOMIC
INTEREST AND ANOTHER ENTITLING THE LATTER TO PURCHASE OR PROCESS THE
PRODUCT UPON PRODUCTION OR ENTITLING THE LATTER TO COMPENSATION FOR
EXTRACTION OR CUTTING DOES NOT CONVEY A DEPLETABLE ECONOMIC INTEREST. 
FURTHER, DEPLETION DEDUCTIONS WITH RESPECT TO AN ECONOMIC INTEREST OF A
CORPORATION ARE ALLOWED TO THE CORPORATION AND NOT TO ITS
SHAREHOLDERS." 

FN4  THE COURT OF APPEALS FOUND THAT THE MINE OPERATORS HERE HAD AN
ENFORCIBLE RIGHT TO MINE THE COAL TO EXHAUSTION.  SEE DISCUSSION,
SUPRA, AT 642. 

FN5  THE COURT POINTS OUT THAT THE MINE OPERATORS DO NOT CLAIM TO BE
A "CO-ADVENTURER, PARTNER, OR PRINCIPAL" IN THE MINING OF THE COAL. 
ANTE, AT 637.  THE MINE OPERATORS, HOWEVER, DO CLAIM TO BE ENGAGED IN A
TYPE OF JOINT VENTURE WITH PARAGON IN MINING THE COAL.  IT IS
UNDERSTANDABLE THAT THEY DO NOT USE THE EXACT LANGUAGE OF SEC. 631(C),
FOR THAT SECTION HAS NO BEARING UPON THE QUESTION HERE AT ISSUE:
WHETHER THEY OWN AN ECONOMIC INTEREST IN THE COAL IN PLACE. 

FN6  PARAGON PAID THE MINE OPERATORS BETWEEN $4 AND $5 PER TON FOR
THE COAL. 

FN7  COMPARE THIS COURT'S REJECTION OF THE ARGUMENT THAT ONLY A LEGAL
INTEREST CAN CONSTITUTE A "SUBSTANTIAL INTEREST" IN A CORPORATION IN
UNITED STATES V. BOSTON & M.R. CO., 380 U.S. 157. 
..END :








BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS &
STATION EMPLOYEES V. ASSOCIATION FOR THE BENEFIT OF NON-CONTRACT
EMPLOYEES 380 U.S. 650 


NO. 138.  ARGUED MARCH 4, 1965.  - DECIDED APRIL 28, 1965.* - 117 U.S.
APP. D.C. 387, 330 F.2D 853, JUDGMENTS IN NOS. 138 AND 369 REVERSED,
JUDGMENT IN NO. 139 AFFIRMED. 

*TOGETHER WITH NO. 139, UNITED AIR LINES, INC. V. NATIONAL MEDIATION
BOARD ET AL. AND NO. 369, NATIONAL MEDIATION BOARD ET AL. V.
ASSOCIATION FOR THE BENEFIT OF NON-CONTRACT EMPLOYEES, ALSO ON
CERTIORARI TO THE SAME COURT. 


THE BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS (BROTHERHOOD) FILED
WITH THE NATIONAL MEDIATION BOARD (BOARD) AN APPLICATION UNDER SEC. 2,
NINTH OF THE RAILWAY LABOR ACT WHICH AS LATER AMENDED REQUESTED
INVESTIGATION OF A REPRESENTATION DISPUTE AMONG THE "CLERICAL, OFFICE,
STORES, FLEET AND PASSENGER SERVICE" EMPLOYEES OF UNITED AIR LINES
(UNITED).  THE BOARD HAD DETERMINED THAT GROUPING TO BE APPROPRIATE FOR
COLLECTIVE BARGAINING IN A CASE (R-1706) DECIDED IN 1947 AFTER AN
EXTENSIVE HEARING IN WHICH UNITED AND OTHER AIRLINES BY INVITATION GAVE
THEIR VIEWS.  THE BOARD FOUND THAT A REPRESENTATION DISPUTE EXISTED AND
SCHEDULED A SECRET ELECTION, PROPOSING TO USE ITS STANDARD BALLOT
PROVIDING FOR THE PRINTING OF THE NAMES OF THE TWO LABOR ORGANIZATIONS
IN THE DISPUTE, WITH A THIRD SPACE FOR A "WRITE IN" DESIGNATION BUT NO
SPACE FOR A SPECIFIC "NO UNION" VOTE.  SEEKING TO ENJOIN THE BOARD FROM
CONDUCTING AN ELECTION UNLESS IT HELD A HEARING ON THE CRAFT OR CLASS
ISSUE AND UNLESS THE BALLOT ALLOWED AN EMPLOYEE TO VOTE AGAINST
REPRESENTATION, UNITED, AFTER EXTENSIVE CORRESPONDENCE WITH THE BOARD,
FILED SUIT.  THE DISTRICT COURT DISMISSED THE CASE, THE COURT OF
APPEALS AFFIRMED, AND THE CASE IS HERE ON CERTIORARI AS NO. 139.  THE
ASSOCIATION FOR THE BENEFIT OF NON-CONTRACT EMPLOYEES OF UNITED (THE
ASSOCIATION), WHICH HAD BEEN FORMED ONLY TO BE HEARD BY THE BOARD IN A
CRAFT OR CLASS PROCEEDING AND TO HAVE THE BALLOT AMENDED, BROUGHT A
SIMILAR SUIT AFTER UNITED'S CASE WAS DISMISSED, AND THE BROTHERHOOD
INTERVENED.  THE DISTRICT COURT ENJOINED THE BOARD FROM CONDUCTING AN
ELECTION WHICH DID NOT PERMIT AN EMPLOYEE TO VOTE AGAINST COLLECTIVE
BARGAINING REPRESENTATION.  THE BOARD AND THE BROTHERHOOD FILED
SEPARATE APPEALS.  THE COURT OF APPEALS AFFIRMED BOTH CASES, WHICH ARE
HERE ON CERTIORARI AS NOS. 138 AND 369.  THE BOARD LATER AMENDED THE
BALLOT FORM TO STATE THAT NO EMPLOYEE IS REQUIRED TO VOTE AND THAT IF
LESS THAN A MAJORITY OF EMPLOYEES CASTS VALID BALLOTS NO REPRESENTATIVE
WILL BE CERTIFIED.  HELD: 

1.  THE RAILWAY LABOR ACT PRECLUDES JUDICIAL REVIEW OF THE BOARD'S
CERTIFICATION OF A COLLECTIVE BARGAINING REPRESENTATIVE.  SWITCHMEN'S
UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297, FOLLOWED.  PP. 658
660. 

2.  THE BOARD'S ACTION HERE IS REVIEWABLE ONLY TO THE EXTENT OF THE
QUESTION OF THE BOARD'S PERFORMANCE OF ITS STATUTORY DUTY TO
"INVESTIGATE" THE REPRESENTATION DISPUTE.  P. 661. 

3.  THE BOARD PERFORMED ITS STATUTORY DUTY TO CONDUCT AN
INVESTIGATION AND DESIGNATE THE CRAFT OR CLASS IN WHICH THE ELECTION
SHOULD BE HELD.  P. 661. 

(A)  THE BOARD'S DUTY TO INVESTIGATE IS TO MAKE SUCH INFORMAL, NON
ADVERSARY INVESTIGATION AS THE NATURE OF THE CASE MAY REQUIRE.  P.
662. 

(B)  THE BOARD HAS NOT FAILED TO MAKE SUFFICIENT INVESTIGATION AND
HAS NOT BLINDLY FOLLOWED ITS R-1706 RULING.  PP. 662-665. 

(C)  THE BOARD DID NOT ADHERE SOLELY TO THE CRAFT OR CLASS CHOSEN BY
THE UNIONS, HAVING CONSISTENTLY HELD HEARINGS (THOUGH NOT REQUIRED TO
DO SO) TO DETERMINE THE PROPRIETY OF UNITS REQUESTED BY UNIONS WHICH
WERE UNTESTED BY ACTUAL COLLECTIVE BARGAINING, BUT DISPENSING WITH SUCH
HEARINGS WHERE, AS HERE, EXPERIENCE HAS SHOWN THE GROUPING TO BE
SATISFACTORY.  P. 665. 

(D)  THE ACT DOES NOT REQUIRE THAT A CARRIER BE MADE A PARTY TO
WHATEVER PROCEDURE THE BOARD USES TO DETERMINE THE PROPRIETY OF A CRAFT
OR CLASS, THAT STATUS BEING GIVEN ONLY TO THOSE WHO SEEK TO REPRESENT
EMPLOYEES; AND WHETHER AND TO WHAT EXTENT THE CARRIER'S VIEWS MAY BE
PRESENTED IS SOLELY WITHIN THE BOARD'S DISCRETION.  PP. 666-667. 

(E)  THE BOARD DOES NOT SELECT THE BARGAINING REPRESENTATIVE; IT ONLY
INVESTIGATES, DEFINES THE SCOPE OF THE ELECTORATE, HOLDS THE ELECTION,
AND CERTIFIES THE WINNER.  P. 667. 

4.  THE BOARD'S DECISION AS TO THE FORM OF BALLOT OR WHETHER
SELECTION SHALL BE BY BALLOT IS NOT SUBJECT TO JUDICIAL REVIEW, AND, IN
VIEW OF THE BOARD'S LONG-ESTABLISHED ELECTION PROCEDURES, THE DISTRICT
COURT ERRED IN ENJOINING THE BOARD FROM HOLDING AN ELECTION WITH A
BALLOT NOT PROVIDING OPPORTUNITY ON ITS FACE FOR AN EMPLOYEE TO VOTE
AGAINST COLLECTIVE REPRESENTATION.  PP. 668-669. 

5.  THE BOARD'S RULE OF ELECTION PROCEDURE THAT "NO VOTE" IS A VOTE
FOR NO REPRESENTATION IS WITHIN THE BOARD'S STATUTORY AUTHORITY UNDER
SEC. 2, FOURTH AND WAS FAVORABLE TO THE ASSOCIATION'S EMPLOYEES.  PP.
670-671. 

BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS &
STATION EMPLOYEES V. ASSOCIATION FOR THE BENEFIT OF NON-CONTRACT
EMPLOYEES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE CONSOLIDATED CASES INVOLVE CLAIMS OF UNITED AIR LINES (UNITED)
AND THE ASSOCIATION FOR THE BENEFIT OF NON-CONTRACT EMPLOYEES OF UNITED
(THE ASSOCIATION), ATTACKING THE FORM OF BALLOT THAT THE BOARD INTENDS
TO USE IN A REPRESENTATION ELECTION AMONG UNITED'S EMPLOYEES UNDER SEC.
2, NINTH OF THE RAILWAY LABOR ACT, 44 STAT. 577, AS AMENDED, 45 U.S.C.
SEC. 152, NINTH (1958 ED.).  (FN1) UNITED ALSO CONTENDS THAT THE
NATIONAL MEDIATION BOARD (BOARD) SHOULD HOLD A HEARING UNDER THE SAME
CLASS IN WHICH THE ELECTION SHOULD BE HELD.  BEFORE THE BOARD THE
CONFLICTING UNIONS - BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS
(BROTHERHOOD) AND INTERNATIONAL ASSOCIATION OF MACHINISTS (MACHINISTS)
AGREED THAT THE APPROPRIATE CRAFT OR CLASS IN WHICH THE ELECTION
SHOULD BE HELD WAS "CLERICAL, OFFICE, STORES, FLEET AND PASSENGER
SERVICE EMPLOYEES"; OVER THE OBJECTION OF UNITED THE BOARD ORDERED AN
ELECTION IN THIS UNIT TO DETERMINE WHICH UNION, IF EITHER, WOULD BE ITS
BARGAINING REPRESENTATIVE.  UNITED THEN FILED SUIT AGAINST THE BOARD
RAISING THE QUESTIONS IT PRESSES HERE.  THIS CASE WAS DISMISSED AND IS
HERE, AFTER AFFIRMANCE BY THE COURT OF APPEALS, AS NO. 139.  AFTER THIS
DISMISSAL THE ASSOCIATION FILED SUIT AGAINST THE BOARD, THE BROTHERHOOD
BEING PERMITTED TO INTERVENE, AND RAISED SUBSTANTIALLY THE SAME
CLAIMS.  THE DISTRICT COURT ENJOINED THE BOARD FROM CONDUCTING AN
ELECTION WITH A BALLOT THAT DID NOT PERMIT AN EMPLOYEE TO CAST A VOTE
AGAINST COLLECTIVE BARGAINING REPRESENTATION; THE OTHER ISSUES WERE
REMANDED TO THE BOARD FOR FURTHER CONSIDERATION.  218 F. SUPP. 114. 
THE COURT OF APPEALS AFFIRMED THESE CASES BY A DIVIDED COURT AND THEY
ARE HERE AS NOS. 138 AND 369.  117 U.S. APP. D.C. 387, 330 F.2D 853. 
JUDGE WRIGHT, DISSENTING, THOUGHT THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO ENJOIN THE BOARD FROM CONDUCTING A REPRESENTATION
ELECTION, CITING SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320
U.S. 297 (1943).  WE GRANTED CERTIORARI IN ALL THREE OF THE CASES.  379
U.S. 814. 

WE HOLD THAT THE BOARD SATISFIED ITS STATUTORY DUTY TO INVESTIGATE
THE DISPUTE; THAT UNITED IS NOT ENTITLED TO BE A PARTY TO PROCEEDINGS
BY WHICH THE BOARD DETERMINES THE SCOPE OF THE APPROPRIATE CRAFT OR
CLASS; AND THAT THE BOARD'S CHOICE OF BALLOT FOR ITS FUTURE ELECTIONS
DOES NOT EXCEED ITS STATUTORY AUTHORITY AND IS THEREFORE NOT OPEN TO
JUDICIAL REVIEW. 

               1.  THE FACTS. 

IN JANUARY 1947, AFTER LENGTHY HEARINGS IN WHICH UNITED AND OTHER
AIRLINES PARTICIPATED AT THE REQUEST OF THE BOARD, IT WAS DETERMINED
THAT THE "CLERICAL, OFFICE, STORES, FLEET AND PASSENGER SERVICE"
GROUPING OF EMPLOYEES CONSTITUTED AN APPROPRIATE CRAFT OR CLASS, WITHIN
THE MEANING OF THE ACT, FOR COLLECTIVE BARGAINING PURPOSES.  CASE NO. R
1706, N.M.B. DETERMINATIONS OF CRAFT OR CLASS 423 (1948).  ALL OF THE
PARTIES HERE, SAVE THE ASSOCIATION, PARTICIPATED IN THIS PUBLIC
HEARING.  SINCE THAT TIME THEY HAVE PARTICIPATED IN OTHER CASES
INVOLVING THE SAME QUESTIONS DECIDED IN R-1706, BUT, WITH SOME
EXCEPTIONS, THE BOARD HAS CONTINUED THROUGH THE YEARS TO HOLD ELECTIONS
IN THAT CRAFT OR CLASS. 

IN AUGUST 1962 THE BROTHERHOOD FILED WITH THE BOARD AN APPLICATION
UNDER SEC. 2, NINTH TO INVESTIGATE A REPRESENTATION DISPUTE AMONG
EMPLOYEES OF UNITED.  IN ITS ORIGINAL APPLICATION THE BROTHERHOOD
PROPOSED TO EXCLUDE THOSE STORES AND FLEET SERVICE PERSONNEL THEN
REPRESENTED BY THE MACHINISTS.  AFTER THE BOARD HAD ADVISED UNITED AND
THE MACHINISTS OF THE BROTHERHOOD'S APPLICATION EACH INFORMED THE BOARD
THAT IN ITS OPINION THE APPLICATION SHOULD BE DISMISSED BECAUSE IT DID
NOT CONFORM TO WHAT THE BOARD HAD FOUND TO CONSTITUTE A CRAFT OR CLASS
IN CASE NO. R-1706, SUPRA. ALTERNATIVELY, UNITED REQUESTED THAT IF
DISMISSAL WAS NOT IN ORDER THE BOARD SHOULD HOLD HEARINGS TO DETERMINE
THE PROPER CRAFT OR CLASS IN WHICH THE ELECTION SHOULD BE HELD.  UPON
RECEIVING NOTICE OF THIS OPPOSITION THE BROTHERHOOD AMENDED ITS
APPLICATION TO INCLUDE THE FULL CRAFT OR CLASS APPROVED IN R-1706.  THE
MACHINISTS THEN AGREED THAT THIS WAS THE APPROPRIATE UNIT IN WHICH TO
CONDUCT THE ELECTION. 

THE BOARD CONCLUDED THAT A DISPUTE EXISTED REQUIRING AN ELECTION AND
SCHEDULED ONE FOR JANUARY 1963.  IT PROPOSED TO USE ITS STANDARD FORM
OF BALLOT WHICH PROVIDED FOR THE PRINTING OF THE NAMES OF THE LABOR
ORGANIZATIONS - IN THIS CASE, THE BROTHERHOOD AND THE MACHINISTS - WITH
A BOX BELOW EACH NAME FOR THE EMPLOYEE TO CHECK THE REPRESENTATIVE
PREFERRED.  A THIRD SPACE WAS PROVIDED IN WHICH THE EMPLOYEE COULD
WRITE IN THE NAME OF ANY OTHER ORGANIZATION OR INDIVIDUAL HE WISHED TO
REPRESENT HIM.  THERE WAS NOT A PLACE ON THE BALLOT IN WHICH THE
EMPLOYEE COULD VOTE SPECIFICALLY FOR "NO UNION." 

THE BOARD, ON DECEMBER 19, 1962, DIRECTED THAT A LIST OF THE
EMPLOYEES INVOLVED BE SUPPLIED BY UNITED NOT LATER THAN JANUARY 14,
1963.  ON JANUARY 11 UNITED ADVISED THAT THE REQUEST WAS PREMATURE AND
REQUESTED A HEARING AS TO THE SCOPE OF THE UNIT INVOLVED IN THE
BROTHERHOOD'S AMENDED APPLICATION.  IT OUTLINED IN SOME DETAIL THE PAST
PRACTICES OF THE BOARD IN DEALING WITH SUCH REQUESTS AND ATTACKED THE
CONTINUED SUITABILITY OF THE R-1706 DETERMINATION, ASKING THAT THE CASE
BE RE-OPENED AND THAT THE GROUP BE DIVIDED INTO THREE SEPARATE CRAFTS
OR CLASSES.  ON JANUARY 17 THE BOARD DENIED THIS REQUEST.  IT POINTED
OUT THAT UNITED ON SEPTEMBER 7, 1962, HAD OBJECTED TO THE CRAFT
PROPOSED IN THE BROTHERHOOD'S ORIGINAL APPLICATION ON THE SOLE GROUND
THAT IT DID NOT CONFORM TO R-1706; THAT THE BROTHERHOOD HAD THEN
AMENDED ITS REQUEST TO CONFORM WITH R-1706; THAT UNITED HAD BEEN
NOTIFIED OF THIS CHANGE ON OCTOBER 8, 1962; THAT ON OCTOBER 24 THE
BOARD HAD REQUESTED UNITED TO FURNISH THE NUMBER OF EMPLOYEES IN THE
CRAFT OR CLASS AS AMENDED AND THAT IT HAD FURNISHED THIS INFORMATION ON
NOVEMBER 2, STATING THAT THERE WERE 12,451 AS OF A GIVEN DATE; AND THAT
IT HAD FAILED TO FURNISH THE NAMES OF THE EMPLOYEES.  THE BOARD THEN
COMMENTED THAT "THE CARRIER IS NOT A PARTY TO THIS REPRESENTATION
DISPUTE"; THAT "NO REQUEST FOR A REVIEW OF  ...  CASE NO. R-1706, ET
AL. HAS BEEN RECEIVED FROM EITHER ORGANIZATION PARTY TO NMB CASE NO.
3590" (THE PENDING APPLICATION OF THE BROTHERHOOD); AND THAT UNITED'S
REQUEST WAS "NOT TIMELY MADE, SINCE THE BOARD, ON DECEMBER 19, 1962,
FOUND THAT A REPRESENTATION DISPUTE EXISTED AMONG THE EMPLOYEES IN THIS
CRAFT OR CLASS, AND HAS AUTHORIZED AN ELECTION."  UNITED REQUESTED
RECONSIDERATION OF THIS DECISION, BUT WITHOUT SUCCESS. 

MEANWHILE, ON JANUARY 18, 1963, WHEN UNITED ADVISED THE BOARD THAT IT
WAS "WILLING TO ALLOW A BALLOT BOX ELECTION ON COMPANY PROPERTY
PROVIDED THE BALLOT FOLLOWS THE FORM USED BY THE NATIONAL LABOR
RELATIONS BOARD," I.E., THE BALLOT "WOULD HAVE A SPACE FOR THE EMPLOYEE
TO VOTE AGAINST REPRESENTATION AS WELL AS SPACE FOR THE EMPLOYEE TO
VOTE FOR REPRESENTATION" BY THE BROTHERHOOD OR THE MACHINISTS.  THE
BOARD REPLIED THAT ITS FORM OF BALLOT HAD BEEN USED SINCE 1934 AND THAT
IT SAW NO REASON TO DEPART FROM IT.  THEREAFTER UNITED ADVISED THAT IT
WOULD FURNISH THE LIST OF EMPLOYEES BY FEBRUARY 11, BUT ON THAT DATE
THE LIST WAS REFUSED AND ACTION WAS BEGUN THE NEXT DAY AGAINST THE
BOARD IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  THIS CASE
WAS LATER DISMISSED, AS WE HAVE NOTED. 

IT APPEARS THAT WHILE THE ELECTION WAS BEING DELAYED THE ASSOCAITION
WAS BEING ORGANIZED AMONG UNITED'S EMPLOYEES.  BY MARCH 1963 IT CLAIMED
6,400 MEMBERS, ABOUT 50% OF THE TOTAL NUMBER OF UNITED'S EMPLOYEES.  IT
SOUGHT, LIKE UNITED, TO BE HEARD IN A CRAFT OR CLASS PROCEEDING AND TO
HAVE THE BALLOT AMENDED.  IT STATED, HOWEVER, THAT IT DID NOT SEEK
RECOGNITION AS A BARGAINING REPRESENTATIVE, AND IT DID NOT WANT ITS
NAME ON THE BALLOT.  IT INTENDED TO DISSOLVE AFTER THE ELECTION.  THE
BOARD DENIED THE APPLICATIONS. 

AFTER UNITED'S CASE WAS DISMISSED, THE ASSOCIATION FILED A SIMILAR
SUIT IN THE SAME COURT, SEEKING SUBSTANTIALLY THE SAME RELIEF.  THE
BROTHERHOOD WAS PERMITTED TO INTERVENE, AND IT FILED A SEPARATE APPEAL
FROM THAT OF THE BOARD AFTER THE COURT HAD DISPOSED OF THE CASE AS WE
HAVE ALREADY STATED. 

AFTER WE GRANTED CERTIORARI, THE BOARD ADOPTED AN AMENDED FORM OF
BALLOT ON WHICH THERE APPEARS THE FOLLOWING DIRECTLY ABOVE THE NAMES OF
THE UNIONS SEEKING ELECTION AS REPRESENTATIVE:

                          "INSTRUCTIONS FOR VOTING 

"NO EMPLOYEE IS REQUIRED TO VOTE.  IF LESS THAN A MAJORITY OF THE
EMPLOYEES CAST VALID BALLOTS, NO REPRESENTATIVE WILL BE CERTIFIED." 

IN EFFECT, THIS AMENDED BALLOT STATED ON ITS FACE WHAT HAS BEEN THE
PRACTICE OF THE BOARD IN THESE ELECTIONS SINCE ITS INCEPTION.  THE
BOARD HAS ANNOUNCED ITS INTENTION TO USE THIS FORM OF BALLOT IN FUTURE
REPRESENTATION ELECTIONS, INCLUDING ANY THAT MAY BE HELD IN THIS
PARTICULAR MATTER. 

2.  THE PURPOSES OF THE ACT AND THE BOARD'S FUNCTION. 

THE MAJOR OBJECTIVE OF THE RAILWAY LABOR ACT, 44 STAT. 577, AS
AMENDED, 45 U.S.C. SECS. 151-188 (1958 ED.), WAS "THE AVOIDANCE OF
INDUSTRIAL STRIFE, BY CONFERENCE BETWEEN THE AUTHORIZED REPRESENTATIVES
OF EMPLOYER AND EMPLOYEE."  VIRGINIAN R. CO. V. SYSTEM FEDERATION NO.
40, 300 U.S. 515, 547 (1937).  SECTION 2, NINTH SET UP THE MACHINERY
FOR THE SELECTION OF THE REPRESENTATIVES OF EMPLOYEES.  IT AUTHORIZED
THE NATIONAL MEDIATION BOARD, UPON REQUEST, TO INVESTIGATE DISPUTES
OVER REPRESENTATION; TO "DESIGNATE" THOSE WHO WERE AFFECTED; TO USE A
SECRET BALLOT OR ANY OTHER APPROPRIATE MEANS OF ASCERTAINING THE CHOICE
OF EMPLOYEES; TO ESTABLISH RULES GOVERNING ELECTIONS AND TO CERTIFY THE
REPRESENTATIVES SO CHOSEN TO REPRESENT THE EMPLOYEES IN NEGOTIATIONS. 
UPON THE ISSUANCE OF THIS CERTIFICATE THE EMPLOYER, UNDER THE ACT, IS
REQUIRED TO "TREAT" WITH THE REPRESENTATIVE CERTIFIED TO IT BY THE
BOARD.  AS WE SAID IN VIRGINIAN R. CO.:  "THE STATUTE DOES NOT
UNDERTAKE TO COMPEL AGREEMENT BETWEEN THE EMPLOYER AND EMPLOYEES, BUT
IT DOES COMMAND THOSE PRELIMINARY STEPS WITHOUT WHICH NO AGREEMENT CAN
BE REACHED.  IT AT LEAST REQUIRES THE EMPLOYER TO MEET AND CONFER WITH
THE AUTHORIZED REPRESENTATIVE OF ITS EMPLOYEES, TO LISTEN TO THEIR
COMPLAINTS, TO MAKE REASONABLE EFFORT TO COMPOSE DIFFERENCES - IN
SHORT, TO ENTER INTO A NEGOTIATION FOR THE SETTLEMENT OF LABOR DISPUTES
SUCH AS IS CONTEMPLATED BY SEC. 2, FIRST."  ID., AT 548. 

IN SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297
(1943), THE PETITIONER SUED FOR THE CANCELLATION OF A BOARD
REPRESENTATION CERTIFICATE.  THE COURT HELD THAT THE ACT PRECLUDED
REVIEW OF THE BOARD'S CERTIFICATION OF A COLLECTIVE BARGAINING
REPRESENTATIVE UNDER SEC. 2, NINTH.  THE CASE INVOLVED A QUESTION OF
STATUTORY CONSTRUCTION, I.E., WHETHER THE ACT PERMITTED THE DIVISION OF
CRAFTS OR CLASSES OF A SINGLE CARRIER INTO SMALLER UNITS FOR COLLECTIVE
BARGAINING PURPOSES.  THE COURT REFUSED TO CONSIDER THE MERITS OF THE
CLAIM, HOLDING THAT IT WAS FOR THE BOARD, NOT THE COURTS, FINALLY TO
RESOLVE SUCH QUESTIONS.  "THE ACT IN SEC. 2, FOURTH," THE COURT SAID,
"WRITES INTO LAW THE 'RIGHT' OF THE 'MAJORITY OF ANY CRAFT OR CLASS OF
EMPLOYEES' TO 'DETERMINE WHO SHALL BE THE REPRESENTATIVE OF THE CRAFT
OR CLASS FOR THE PURPOSES OF THIS ACT.'  THAT 'RIGHT' IS PROTECTED BY
SEC. 2, NINTH WHICH GIVES THE MEDIATION BOARD THE POWER TO RESOLVE
CONTROVERSIES CONCERNING IT AND AS AN INCIDENT THERETO TO DETERMINE
WHAT IS THE APPROPRIATE CRAFT OR CLASS IN WHICH THE ELECTION SHOULD BE
HELD."  ID., AT 300-301.  THE COURT GOES ON TO NOTE THAT CONGRESS
DECIDED ON THE METHOD WHICH MIGHT BE EMPLOYED TO PROTECT THIS "RIGHT";
AND THAT WHERE CONGRESS "HAS NOT EXPRESSLY AUTHORIZED JUDICIAL REVIEW,"
ID., AT 301, "THIS COURT HAS OFTEN REFUSED TO FURNISH ONE EVEN WHERE
QUESTIONS OF LAW MIGHT BE INVOLVED," ID., AT 303.  THE COURT'S
CONCLUSION WAS THAT "THE INTENT SEEMS PLAIN - THE DISPUTE WAS TO REACH
ITS LAST TERMINAL POINT WHEN THE ADMINISTRATIVE FINDING WAS MADE. 
THERE WAS TO BE NO DRAGGING OUT OF THE CONTROVERSY INTO OTHER TRIBUNALS
OF LAW."  ID., AT 305.  THUS, THE COURT HELD THERE COULD BE NO JUDICIAL
REVIEW. 

IT IS SOMETIMES SAID THAT IN LEEDOM V. KYNE, 358 U.S. 184 (1958), THE
COURT CREATED AN "EXCEPTION" TO THE DOCTRINE OF SWITCHMEN'S UNION.  IN
KYNE, IT WAS HELD THAT THE LAW AFFORDED A REMEDY IN THE COURTS WHEN
UNLAWFUL ACTION BY THE NATIONAL LABOR RELATIONS BOARD INFLICTED INJURY
ON ONE OF THE PARTIES TO A BARGAINING DISPUTE.  BUT THIS WAS NO
EXCEPTION TO SWITCHMEN'S UNION.  RATHER THE COURT WAS CAREFUL TO NOTE
THAT "THIS SUIT IS NOT ONE TO 'REVIEW,' IN THE SENSE OF THAT TERM AS
USED IN THE ACT, A DECISION OF THE BOARD MADE WITHIN ITS JURISDICTION. 
RATHER IT IS ONE TO STRIKE DOWN AN ORDER OF THE BOARD MADE IN EXCESS OF
ITS DELEGATED POWERS AND CONTRARY TO A SPECIFIC PROHIBITION IN THE
ACT."  LEEDOM V. KYNE, 358 U.S. 184, 188.  THE LIMITED NATURE OF THIS
HOLDING WAS RE-EMPHASIZED ONLY LAST TERM WHERE WE REFERRED TO THE
"NARROW LIMITS" AND "PAINSTAKINGLY DELINEATED PROCEDURAL BOUNDARIES OF
KYNE."  BOIRE V. GREYHOUND CORP., 376 U.S. 473, 481 (1964).  IT IS WITH
THESE PRINCIPLES IN MIND THAT WE TURN TO THE QUESTIONS IN THE INSTANT
CASES.            3.  THE CRAFT OR CLASS DETERMINATION. 

THE ORDER OF THE DISTRICT COURT IN NOS. 138 AND 369 ENJOINS THE BOARD
FROM CONDUCTING AN ELECTION "IN WHICH THE FORM OF THE BALLOT DOES NOT
PERMIT A VOTING EMPLOYEE TO CAST A VOTE AGAINST COLLECTIVE BARGAINING
REPRESENTATION  ...  ."  THE ASSOCIATION CONCEDES THAT THE ORDER DOES
NOT ENJOIN THE HOLDING OF THE ELECTION UNTIL THE BOARD RECONSIDERS ITS
CRAFT OR CLASS DETERMINATION; NOR HAS IT PETITIONED HERE FOR A REVIEW
OF THAT PORTION OF THE DECISION.  THUS, WE NEED NOT REACH THE QUESTION
OF THE ASSOCIATION'S RIGHT TO DEMAND OR PARTICIPATE IN PROCEEDINGS
LEADING TO SUCH A DETERMINATION. 

THE SAME IS NOT TRUE OF UNITED, HOWEVER, FOR IT SPECIFICALLY SOUGHT
AND WAS DENIED SUCH RELIEF, AND IT COMES HERE CONTENDING THAT THIS
DENIAL CONSTITUTED ERROR.  UNITED ARGUES THAT SINCE THE ACT COMPELS IT
TO TREAT WITH THE REPRESENTATIVE CHOSEN BY THE MAJORITY OF ITS
EMPLOYEES IN THE CRAFT OR CLASS IN WHICH THE ELECTION IS HELD, IT HAS A
DIRECT AND SUBSTANTIAL INTEREST IN THE SCOPE OF THAT UNIT; AND THAT
SINCE THE ACT PROVIDES FOR NO ADMINISTRATIVE OR JUDICIAL REVIEW, DUE
PROCESS REQUIRES THAT IT BE ACCORDED AN OPPORTUNITY TO PARTICIPATE IN
THE PROCEEDINGS BY WHICH THE BOARD DETERMINES WHICH EMPLOYEES MAY
PARTICIPATE. 

IT ALSO CONTENDS THAT THE BOARD, IN DESIGNATING THE EMPLOYEES WHO
COULD PARTICIPATE IN THE ELECTION, DID NOT DO SO AS A RESULT OF THE
STATUTORILY REQUIRED INVESTIGATION - WHICH, UNITED CONTENDS, REQUIRES
THAT THE BOARD TAKE EVIDENCE AND MAKE FINDINGS - BUT MADE AN ARBITRARY
DETERMINATION, RELYING SOLELY ON THE AGREEMENT OF THE UNIONS. 

UNITED'S POSITION IS THAT SWITCHMEN'S UNION DOES NOT CONTROL A CLAIM
THAT THE BOARD HAS IGNORED AN EXPRESS COMMAND OF THE ACT.  THIS
PARTICULAR QUESTION WAS RESERVED IN THE 1943 CASES.  IN GENERAL
COMMITTEE V. MISSOURI-KANSAS-TEXAS R. CO., 320 U.S. 323 (1943), A
COMPANION CASE TO SWITCHMEN'S UNION, THE COURT STATED:  "WHETHER
JUDICIAL POWER MAY EVER BE EXERTED TO REQUIRE THE MEDIATION BOARD TO
EXERCISE THE 'DUTY' IMPOSED UPON IT UNDER SEC. 2, NINTH AND, IF SO, THE
TYPE OR TYPES OF SITUATIONS IN WHICH IT MAY BE INVOKED PRESENT
QUESTIONS NOT INVOLVED HERE."  ID., AT 336, N. 12.  WE THINK THAT THE
BOARD'S ACTION HERE IS REVIEWABLE ONLY TO THE EXTENT THAT IT BEARS ON
THE QUESTION OF WHETHER IT PERFORMED ITS STATUTORY DUTY TO
"INVESTIGATE" THE DISPUTE.  (FN2)  REVIEWING THAT ACTION, HOWEVER, WE
CONCLUDE THAT THE CONTENTION IS COMPLETELY DEVOID OF MERIT. 

REPRESENTATION DISPUTE AND "TO CERTIFY TO BOTH PARTIES, IN WRITING,
WITHIN THIRTY DAYS AFTER THE RECEIPT OF THE INVOCATION OF ITS SERVICES,
THE NAME OR NAMES OF THE INDIVIDUALS OR ORGANIZATIONS THAT HAVE BEEN
DESIGNATED AND AUTHORIZED TO REPRESENT THE EMPLOYEES INVOLVED IN THE
DISPUTE, AND CERTIFY THE SAME TO THE CARRIER."   THIS COMMAND IS BROAD
AND SWEEPING.  WE SHOULD NOTE AT THE OUTSET THAT THE BOARD'S DUTY TO
INVESTIGATE IS A DUTY TO MAKE SUCH INVESTIGATION AS THE NATURE OF THE
CASE REQUIRES.  (FN3)  AN INVESTIGATION IS "ESSENTIALLY INFORMAL, NOT
ADVERSARY"; IT IS "NOT REQUIRED TO TAKE ANY PARTICULAR FORM."  INLAND
EMPIRE DISTRICT COUNCIL V. MILLIS, 325 U.S. 697, 706 (1945).  THESE
PRINCIPLES ARE PARTICULARLY APT HERE WHERE CONGRESS HAS SIMPLY TOLD THE
BOARD TO INVESTIGATE AND HAS LEFT TO IT THE TASK OF SELECTING THE
METHODS AND PROCEDURES WHICH IT SHOULD EMPLOY IN EACH CASE. 

IN DEALING WITH THE SUFFICIENCY OF THE INVESTIGATION IT IS NECESSARY
TO EXAMINE THE EXPERIENCE OF THE BOARD THROUGH THE YEARS IN RESOLVING
QUESTIONS OF CRAFT OR CLASS APPROPRIATENESS.  THAT EXPERIENCE, INSOFAR
AS IT CONCERNS THE UNIT INVOLVED HERE, DATES BACK TO 1946 IN CASE NO. R
1706, SUPRA, WHEN IT WAS CALLED UPON FOR THE FIRST TIME TO APPLY THE
CRAFT OR CLASS PRINCIPLE OF REPRESENTATION TO THE AIRLINE INDUSTRY.  AT
THAT TIME IT HAD BEFORE IT A FLEDGLING INDUSTRY, A RELATIVELY NEW
STATUTORY COMMAND AND A HUGE GROUP OF EMPLOYEES FOR WHOM THERE WERE NO
RECOGNIZED CRAFTS OR CLASSES WITHIN THE MEANING OF THE ACT.  AT LEAST
FIVE UNIONS WERE INVOLVED, ALL URGING DIFFERENT EMPLOYEE GROUPINGS, AND
ALL OF THE MAJOR AIRLINES WERE INVITED TO PARTICIPATE IN AN EXTENDED
PUBLIC HEARING.  UNITED WAS AMONG THOSE PARTICIPATING AND IN FACT
SUPPORTED THE VERY CRAFT OR CLASS UNIT WHICH THE BOARD EVENTUALLY
DECIDED UPON AND TO WHICH IT HAS ADHERED HERE.  BECAUSE IT WAS THE
FIRST TIME THE BOARD HAD RECOGNIZED SUCH A CRAFT OR CLASS, IT
CAUTIOUSLY PROVIDED IN DENYING RECONSIDERATION OF ITS DETERMINATION
THAT IT WAS SUBJECT TO FUTURE RE-EXAMINATION WHERE TO DO SO WOULD
FURTHER THE PURPOSES OF THE ACT. 

THEREAFTER BEGAN A PERIOD IN WHICH THE WORKABILITY OF THE R-1706
DETERMINATION WAS TESTED IN PRACTICE, AND IT DID NOT GO COMPLETELY
UNCHALLENGED.  IN 1948 UNITED VOLUNTARILY RECOGNIZED THE MACHINISTS AS
THE COLLECTIVE BARGAINING REPRESENTATIVE FOR ITS RAMP AND STORES
EMPLOYEES.  IT SUPPLIED THE BOARD WITH EVIDENCE UPON WHICH THIS
RECOGNITION WAS BASED AND ITS REASONS FOR DEPARTING FROM ITS USUAL
POLICY.  IT IS NOTEWORTHY THAT THE BOARD REPLIED THAT VOLUNTARY
RECOGNITION WOULD NOT PRECLUDE FUTURE DETERMINATION BY THE BOARD OF THE
PROPER CRAFT OR CLASS TO WHICH THOSE EMPLOYEES WOULD BELONG.  IN 1951
THE DETERMINATION OF R-1706 WITHSTOOD CHALLENGE IN MATTER OF
REPRESENTATION OF EMPLOYEES OF NORTHWEST AIRLINES, INC., CASE NO. R
2357, 2 N.M.B. DETERMINATIONS OF CRAFT OR CLASS 60 (1955).  UNITED
SUBMITTED A STATEMENT IN THIS PROCEEDING, EMPHASIZING ITS DISAGREEMENT
WITH THE R-1706 DECISION AND REQUESTING THAT IT BE DISREGARDED.  THE
BOARD REFUSED TO DO SO, BUT IT DID REITERATE WHAT IT HAD IMPLIED IN
1947 - THAT IT WAS "OF THE OPINION THAT UPON PROPER APPLICATION ...  IT
WILL BE ADVISABLE TO REEXAMINE THE DETERMINATION IN CASE R-1706 ET AL.,
WITH THE VIEW OF MAKING SUCH MODIFICATIONS AS MAY BE FOUND TO BE
JUSTIFIED AT THAT TIME."  ID., AT 67.  WE NOTE THAT IN BOTH CASES - R
1706 AND R-2357 - THE UNIONS COMPETING FOR REPRESENTATIVE STATUS WERE
IN DISAGREEMENT AS TO THE APPROPRIATE UNIT IN WHICH ELECTIONS SHOULD BE
HELD.  AGAIN IN 1952, IN CASE NO.  R-2482, 2 N.M.B. DETERMINATIONS OF
CRAFT OR CLASS 72 (1955), UNITED PARTICIPATED WHEN THE AIR LINE
DISPATCH CLERKS ASSOCIATION SOUGHT TO REPRESENT ITS GENERAL DISPATCH
CLERKS, DISPATCH CLERKS A, B, AND C AND CREW SCHEDULERS; THE
BROTHERHOOD THERE DISPUTED THE GROUPING, CONTENDING THAT R-1706
ESTABLISHED THE SCOPE OF THE ELECTION.  THE BOARD SUSTAINED THIS
POSITION, WHICH WAS ALSO THAT OF UNITED, AND HELD THAT R-1706 SHOULD BE
ADHERED TO.  UNITED HAD ARGUED THAT THE DISPATCH CLERKS AND SCHEDULERS
WERE NOT A SEPARATE CRAFT OR CLASS BUT MERELY COMPONENTS OF THE R-1706
UNIT, AND THAT REPRESENTATION COULD BE HAD ONLY THROUGH INVESTIGATION
AND ELECTION IN THAT GROUP.  THE BOARD ULTIMATELY DISCUSSED THE
APPLICATION IN THESE TERMS: 

"THE PRECEDENTS HERETOFORE ESTABLISHED BY THE BOARD, HOWEVER, CANNOT
BE DISREGARDED.  MOREOVER, THE RECORD OF STABLE INDUSTRIAL RELATIONS
WHICH HAS FOLLOWED IN THE YEARS SINCE THE DETERMINATION IN R-1706 MUST
BE GIVEN DUE AND CAREFUL CONSIDERATIONS. 

"  ...  IN AN INDUSTRY WHICH IS STILL EXPANDING, THE AGENCY CHARGED
WITH THE DUTY OF CERTIFYING DESIGNATED REPRESENTATIVES FOR COLLECTIVE
BARGAINING MUST OF NECESSITY HESITATE BEFORE ACQUIESCING IN THE DESIRES
OF CERTAIN EMPLOYEES TO ESTABLISH SMALL SEGREGATED GROUPS, BECAUSE BY
THAT VERY COURSE IT MAY RETARD, OR EVEN DESTROY JOB OPPORTUNITIES. 
FLEXIBILITY IN THE USE OF EMPLOYEE TALENT CARRIES JUST AS MANY
ADVANTAGES FOR THE EMPLOYEES AS IT DOES FOR THE CARRIER.  THE BOARD IS
FULLY AWARE THAT THE ACTION TAKEN HEREIN WILL HAVE, AS AN END RESULT,
THE WITHHOLDING OF AN IMMEDIATE OPPORTUNITY TO SELECT A COLLECTIVE
BARGAINING AGENT BY THIS GROUP OF EMPLOYEES, BUT NEVERTHELESS, IT IS
CONVINCED THAT THE BASIS PURPOSES OF THE RAILWAY LABOR ACT WILL BE
BETTER SERVED BY ADHERENCE TO THE POLICY OF PRESERVING ESTABLISHED
CRAFTS OR CLASSES."  ID., AT 76. 

NOR DO THE SUBSEQUENT CASES BROUGHT TO OUR ATTENTION STRIP THE R-1706
DECISION OF ITS CONTINUING VALIDITY.  IN BOTH THESE MATTERS - CASES NO.
C-2252 AND C-2389, 3 N.M.B.  DETERMINATIONS OF CRAFT OR CLASS 16 (1961)
- THE BOARD DETERMINED THAT STOCK AND STOREROOM EMPLOYEES WERE SEPARATE
CRAFTS OR CLASSES OF EMPLOYEES AT NORTH CENTRAL AND TRANS-TEXAS AIR
LINES.  NEITHER OF THESE AIRLINES HAD PARTICIPATED IN THE 1946
PROCEEDINGS.  BOTH WERE FEEDER LINES, AND IN BOTH CASES THE CONTENDING
UNIONS DISAGREED AS TO THE APPROPRIATE UNIT IN WHICH THE ELECTION
SHOULD BE HELD.  IN ANY EVENT, THE BOARD WAS SIMPLY PURSUING THE POLICY
IT HAD ANNOUNCED WHEN IT DECIDED R-1706 - THAT IT WOULD RE-EXAMINE
CRAFT OR CLASS DETERMINATIONS WHEN IT THOUGHT THE PURPOSE OF THE ACT
WOULD BE FURTHERED THEREBY.  THIS IN ITSELF BELIES THE NOTION THAT THE
BOARD HAS BLINDLY FOLLOWED THE R-1706 RULING.  (FN4) 

IT IS IN LIGHT OF THIS BACKGROUND THAT WE MUST DECIDE WHETHER THE
BOARD'S REAFFIRMATION OF THE R-1706 DETERMINATION IN THESE CASES WAS
MADE AFTER A SUFFICIENT INVESTIGATION, WITHIN THE MEANING OF THE ACT. 
WE REJECT THE CONTENTION THAT IT ADHERED SOLELY TO THE CRAFT OR CLASS
CHOSEN BY THE UNIONS.  TIME AND AGAIN IT HAS ACKNOWLEDGED THAT IT HAS
THE TASK OF DETERMINING THE APPROPRIATENESS OF A CRAFT OR CLASS, AND
NOTHING IN THIS CASE SUGGESTS THAT IT ABDICATED THAT RESPONSIBILITY
HERE.  WHERE UNITS UNTESTED BY ACTUAL COLLECTIVE BARGAINING HAVE BEEN
PROPOSED BY THE UNIONS INVOLVED THE BOARD HAS CONSISTENTLY HELD
HEARINGS TO DETERMINE THE PROPRIETY OF HOLDING ELECTIONS IN THOSE
CRAFTS OR CLASSES.  BUT WHERE THE UNIONS HAVE AGREED AND THE UNIT THEY
HAVE AGREED UPON HAS BEEN ONE WELL-ESTABLISHED IN INDUSTRY BARGAINING
CIRCLES, IT HAS USUALLY HELD ELECTIONS WITHOUT FULL-SCALE HEARINGS, NOT
SIMPLY BECAUSE THE UNIONS AGREE BUT BECAUSE THE UNIT UPON WHICH THEY
AGREE IS ONE THAT IS WELL-RECOGNIZED UNDER PRIOR DETERMINATIONS OF THE
BOARD AND HAS PROVEN SATISFACTORY IN ACTUAL EXPERIENCE.  THIS IS WHAT
IT DID HERE. 

THE BOARD RECEIVED THE BROTHERHOOD'S APPLICATION; IT REQUESTED,
RECEIVED AND CONSIDERED STATEMENTS FROM THE CARRIER AND THE
MACHINISTS.  ON THE BASIS OF THESE PRELIMINARY ACTIONS, IT SCHEDULED AN
ELECTION.  BUT IT CONTINUED TO CORRESPOND WITH UNITED, ACCEPTING AND
STUDYING ITS DETAILED APPLICATION FOR RECONSIDERATION OF THE BOARD'S
DECISION TO PROCEED TO ELECTION IN THE R-1706 CRAFT OR CLASS.  VIEWED
ALONGSIDE PRIOR EXPERIENCE WITH THE R-1706 GROUPING IN THE AIR
TRANSPORT INDUSTRY THIS PROCEDURE CLEARLY COMPLIED WITH THE STATUTORY
COMMAND THAT THE BOARD "INVESTIGATE" THE DISPUTE.   THE ONLY MISSING
ELEMENT OF THE REQUIRED INVESTIGATION IS THE ELECTION AND THAT CAN NOW
BE HELD PROMPTLY. 

UNITED SOUGHT TO HAVE THE DISTRICT COURT REQUIRE THE BOARD TO HOLD A
HEARING ON THE CRAFT OR CLASS ISSUE IN WHICH IT WOULD PARTICIPATE AS A
"PARTY IN INTEREST."  BUT THE ACT DOES NOT REQUIRE A HEARING WHEN THE
BOARD ITSELF DESIGNATES THOSE WHO MAY PARTICIPATE IN THE ELECTION.  IT
PROVIDES THAT "THE BOARD SHALL DESIGNATE WHO MAY PARTICIPATE IN THE
ELECTION  ...  , OR MAY APPOINT A COMMITTEE OF THREE NEUTRAL PERSONS
WHO AFTER HEARING SHALL WITHIN TEN DAYS DESIGNATE THE EMPLOYEES WHO MAY
PARTICIPATE IN THE ELECTION."  INDEED, UNITED SEEMS AWARE OF THIS, FOR
IT STATED IN ITS BRIEF THAT IF "THE RAILWAY LABOR ACT DOES NOT
SPECIFICALLY REQUIRE A HEARING, IT DOES REQUIRE AN 'INVESTIGATION,'"
AND THAT UNITED MUST BE HEARD IN THE COURSE OF THAT PROCEEDING. 
CLEARLY, THEN, THE BOARD CANNOT BE REQUIRED TO HOLD A HEARING. 

NOR DOES THE ACT REQUIRE THAT UNITED BE MADE A PARTY TO WHATEVER
PROCEDURE THE BOARD USES TO DEFINE THE SCOPE OF THE ELECTORATE.  THIS
STATUS IS ACCORDED ONLY TO THOSE ORGANIZATIONS AND INDIVIDUALS WHO SEEK
TO REPRESENT THE EMPLOYEES, FOR IT IS THE EMPLOYEES' REPRESENTATIVE
THAT IS TO BE CHOSEN, NOT THE CARRIERS'.  WHETHER AND TO WHAT EXTENT
CARRIERS WILL BE PERMITTED TO PRESENT THEIR VIEWS ON CRAFT OR CLASS
QUESTIONS IS A MATTER THAT THE ACT LEAVES SOLELY IN THE DISCRETION OF
THE BOARD. 

THE GIST OF UNITED'S CLAIM, THEREFORE, IS THAT IT SHOULD BE ACCORDED
A GREATER ROLE IN THE BOARD'S INVESTIGATION.  THIS ARGUMENT MUST BE
REJECTED.  HERE UNITED PARTICIPATED IN THE PROCEEDING ESTABLISHING THE
CRAFT OR CLASS IN QUESTION AS A COGNIZABLE GROUPING OF EMPLOYEES, AND
IT HAS HAD OPPORTUNITIES SINCE THAT TIME TO PRESENT FURTHER EVIDENCE. 
IT MUST BE REMEMBERED THAT UNITED IS UNDER NO COMPULSION TO REACH AN
AGREEMENT WITH THE CERTIFIED REPRESENTATIVE.  AS CHIEF JUSTICE STONE
SAID IN VIRGINIAN R. CO. V. SYSTEM FEDERATION NO. 40, SUPRA, "THE
QUALITY OF THE ACTION COMPELLED, ITS REASONABLENESS, AND THEREFORE THE
LAWFULNESS OF THE COMPULSION, MUST BE JUDGED IN THE LIGHT OF THE
CONDITIONS WHICH HAVE OCCASIONED THE EXERCISE OF GOVERNMENTAL POWER." 
ID., AT 558-559.  LIKEWISE, AS THE COURT OBSERVED IN HANNAH V. LARCHE,
363 U.S. 420, 442 (1960), THE PROCEDURAL REQUIREMENTS IN A PARTICULAR
PROCEEDING DEPEND ON "THE NATURE OF THE ALLEGED RIGHT INVOLVED, THE
NATURE OF THE PROCEEDING, AND THE POSSIBLE BURDEN ON THAT PROCEEDING
...  ."  THE BOARD, AS WE NOTED IN SWITCHMEN'S UNION, PERFORMS THE
"FUNCTION OF A REFEREE."  IT DOES NOT SELECT ONE ORGANIZATION OR
ANOTHER; IT SIMPLY INVESTIGATES, DEFINES THE SCOPE OF THE ELECTORATE,
HOLDS THE ELECTION AND CERTIFIES THE WINNER.  THUS, WHILE THE BOARD'S
INVESTIGATION AND RESOLUTION OF A DISPUTE IN ONE CRAFT OR CLASS RATHER
THAN ANOTHER MIGHT IMPOSE SOME ADDITIONAL BURDEN UPON THE CARRIER, WE
CANNOT SAY THAT THE LATTER'S INTEREST RISES TO A STATUS WHICH REQUIRES
THE FULL PANOPLY OF PROCEDURAL PROTECTIONS.  WE FIND SUPPORT FOR THIS
CONCLUSION WHEN WE CONSIDER THE BURDEN THAT ACCEPTANCE OF UNITED'S
CONTENTIONS WOULD VISIT UPON THE ADMINISTRATION OF THE ACT.  TO REQUIRE
FULLDRESS HEARINGS ON CRAFT OR CLASS IN EACH REPRESENTATION DISPUTE
WOULD FLY IN THE FACE OF CONGRESS' INSTRUCTION THAT REPRESENTATIVES
SHOULD BE CERTIFIED WITHIN 30 DAYS OF INVOCATION OF THE BOARD'S
SERVICES.  IT PLACES BEYOND REACH THE SPEED WHICH THE ACT'S FRAMERS
THOUGHT AN OBJECTIVE OF THE FIRST ORDER.    IN VIEW OF THESE
CONSIDERATIONS, WE HOLD THAT THE BOARD PERFORMED ITS STATUTORY DUTY TO
CONDUCT AN INVESTIGATION AND DESIGNATE THE CRAFT OR CLASS IN WHICH THE
ELECTION SHOULD BE HELD AND THAT IT DID SO IN A MANNER SATISFYING ANY
POSSIBLE CONSTITUTIONAL REQUIREMENTS THAT MIGHT EXIST.  ITS
DETERMINATION, THEREFORE, IS NOT SUBJECT TO JUDICIAL REVIEW. 
SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, SUPRA.  AS WAS POINTED
OUT THERE, THE "HIGHLY SELECTIVE MANNER IN WHICH CONGRESS HAS PROVIDED
FOR JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS OR DETERMINATIONS UNDER
THE ACT," ID., AT 305, INDICATES THE CONFIDENCE THAT IT REPOSED IN THE
BOARD.  IN TURN THE FAIR AND EQUITABLE MANNER IN WHICH THE BOARD HAS
DISCHARGED ITS DIFFICULT FUNCTION IS ATTESTED BY THE ADMIRABLE RESULTS
IT HAS ATTAINED. 

              4.  THE FORM OF THE BALLOT. 

AS WE HAVE NOTED THE DISTRICT COURT ENJOINED THE BOARD FROM
CONDUCTING AN ELECTION WITH A BALLOT THAT DID NOT PERMIT AN EMPLOYEE TO
CAST A VOTE AGAINST COLLECTIVE REPRESENTATION.  WE BELIEVE THIS WAS
ERROR.  SECTION 2, NINTH EMPOWERS THE BOARD TO ESTABLISH THE RULES
GOVERNING ELECTIONS.  MOREOVER, IT PROVIDES THAT IN RESOLVING
REPRESENTATION DISPUTES THE BOARD IS AUTHORIZED "TO TAKE A SECRET
BALLOT OF THE EMPLOYEES INVOLVED, OR TO UTILIZE ANY OTHER APPROPRIATE
METHOD OF ASCERTAINING THE NAMES OF THEIR DULY DESIGNATED AND
AUTHORIZED REPRESENTATIVES IN SUCH MANNER AS SHALL INSURE THE CHOICE OF
REPRESENTATIVES BY THE EMPLOYEES WITHOUT INTERFERENCE, INFLUENCE, OR
COERCION EXERCISED BY THE CARRIER."  THUS, NOT ONLY DOES THE STATUTE
FAIL TO SPELL OUT THE FORM OF ANY BALLOT THAT MIGHT BE USED BUT IT DOES
NOT EVEN REQUIRE SELECTION BY BALLOT.  IT LEAVES THE DETAILS TO THE
BROAD DISCRETION OF THE BOARD WITH ONLY THE CAVEAT THAT IT "INSURE"
FREEDOM FROM CARRIER INTERFERENCE.  THAT THE DETAILS OF SELECTING
REPRESENTATIVES WERE TO BE LEFT FOR THE FINAL DETERMINATION OF THE
BOARD IS BUTTRESSED BY LEGISLATIVE HISTORY CLEARLY INDICATING AS MUCH. 
(FN5)  SEE HEARINGS ON H.R. 7650, HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 73D CONG., 2D SESS., 34-35. 

IN SUMMARY, THEN, THE SELECTION OF A BALLOT IS A NECESSARY INCIDENT
OF THE BOARD'S DUTY TO RESOLVE DISPUTES.  THE ACT EXPRESSLY SAYS AS
MUCH, INSTRUCTING THE BOARD ALONE TO ESTABLISH THE RULES GOVERNING
ELECTIONS.  THUS, IT IS CLEAR THAT ITS DECISION ON THE MATTER IS NOT
SUBJECT TO JUDICIAL REVIEW WHERE THERE IS NO SHOWING THAT IT HAS ACTED
IN EXCESS OF ITS STATUTORY AUTHORITY. 

UNITED AND THE ASSOCIATION, HOWEVER, APPARENTLY RELYING ON LEEDOM V.
KYNE, SUPRA, CONTEND THAT THE BOARD HAS EXCEEDED ITS STATUTORY
AUTHORITY IN SELECTING THE PROPOSED BALLOT.  THE ARGUMENT IS THAT SEC.
2, FOURTH, WHICH PROVIDES THAT "THE MAJORITY OF ANY CRAFT OR CLASS OF
EMPLOYEES SHALL HAVE THE RIGHT TO DETERMINE WHO SHALL BE THE
REPRESENTATIVE OF THE CRAFT OR CLASS" REQUIRES A BALLOT WITH A "NO
UNION" BOX.  THEY URGE THAT IN VIRGINIAN R. CO. V. SYSTEM FEDERATION
NO. 40, SUPRA, AT 560, CERTIFICATION ON THE BASIS OF A MAJORITY OF THE
VOTES CAST, RATHER THAN A MAJORITY OF THE ELIGIBLE VOTERS, WAS UPHELD
ON THE GROUND THAT NONVOTERS "ARE PRESUMED TO ASSENT TO THE EXPRESSED
WILL OF THE MAJORITY OF THOSE VOTING."  AND THEY SAY THAT THE BOARD'S
BALLOT IS INCONSISTENT WITH THIS RATIONALE.  BUT THE BOARD HAS NOT
FOLLOWED THE PRESUMPTION OF VIRGINIAN R. CO. INDEED THE CAVEAT ON THE
FACE OF THE PROPOSED BALLOT EXPRESSLY REFUTES SUCH AN ASSUMPTION.  THE
BOARD'S RULE OF ELECTION PROCEDURE IS THAT NO VOTE IS A VOTE FOR NO
REPRESENTATION, AND THIS IS NOW MADE PLAIN TO THE VOTING EMPLOYEES.  IT
IS, AS WE HAVE SAID, AN ASSUMPTION MORE FAVORABLE TO THE EMPLOYEES THAT
THE ASSOCIATION REPRESENTS.  THUS, UNDER THE BOARD'S PRACTICE A
MAJORITY OF THE CRAFT OR CLASS, AS REQUIRED BY SEC. 2, FOURTH, DOES
HAVE THE RIGHT TO DETERMINE WHO SHALL BE THE REPRESENTATIVE OF THE
GROUP OR, INDEED, WHETHER THEY SHALL HAVE ANY REPRESENTATION AT ALL. 

IT IS ALSO CLAIMED THAT SINCE SEC. 9(A) OF THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 453, AS AMENDED, 61 STAT. 143, 29 U.S.C. SEC.
159(A) (1958 ED.)  AND SEC. 2, NINTH OF THE RAILWAY LABOR ACT ARE BOTH
DESIGNED TO ENCOURAGE COLLECTIVE BARGAINING AND THE NATIONAL LABOR
RELATIONS BOARD USES A BALLOT WITH A "NO UNION" BOX, THE MEDIATION
BOARD MUST USE ONE ALSO.  EVEN ASSUMING THAT THE "NO UNION" BALLOT
WOULD IMPLEMENT THE PURPOSE OF THE ACT, THIS IS A FAR CRY FROM SAYING
THAT IT IS THE ONLY FORM OF BALLOT THAT WOULD DO SO.  GIVEN BROAD
DISCRETION AS IT IS THE MEDIATION BOARD HAS FOLLOWED A PRESUMPTION
CONTRARY TO THAT ADHERED TO BY THE LABOR RELATIONS BOARD.  THE LATTER
HAS TAILORED ITS BALLOT TO CONFORM TO THE PRESUMPTION OF VIRGINIAN R.
CO. IF IN A LABOR BOARD ELECTION, AN EMPLOYEE DOES NOT VOTE, HE CAN
SAFELY BE PRESUMED TO HAVE ACQUIESCED IN THE WILL OF THE MAJORITY OF
THE VOTERS.  IN A MEDIATION BOARD ELECTION, IF THE EMPLOYEE REFUSES TO
VOTE HE IS TREATED AS HAVING VOTED FOR NO REPRESENTATION. 

WE VENTURE NO OPINION AS TO WHETHER THE BOARD'S PROPOSED BALLOT WILL
BEST EFFECTUATE THE PURPOSES OF THE ACT.  WE DO SAY THAT THERE IS
NOTHING TO SUGGEST THAT IN FRAMING IT THE BOARD HAS EXCEEDED ITS
STATUTORY AUTHORITY. 

UNABLE TO POINT TO ANY SPECIFIC REQUIREMENT OF A "NO UNION" BALLOT IN
THE ACT, UNITED AND THE ASSOCIATION ARE LEFT TO ARGUING IN TERMS OF
POLICY AND BROAD GENERALITIES AS TO WHAT THE RAILWAY LABOR ACT SHOULD
PROVIDE.  THE VERY NATURE OF THE ARGUMENTS INDICATES THAT THE BOARD'S
CHOICE OF ITS PROPOSED BALLOT IS NOT SUBJECT TO JUDICIAL REVIEW, FOR IT
WAS TO AVOID THE HAGGLING AND DELAYS OF LITIGATION THAT SUCH QUESTIONS
WERE LEFT TO THE BOARD.  THESE ARE MATTERS FOR CONGRESS AND THE BOARD
RATHER THAN THE COURTS.  HERE THE BOARD - A CREATURE OF CONGRESS - HAS
BEEN, AS WE HAVE SAID, CAREFUL TO PROVIDE FAIR, YET EFFECTIVE
PROCEDURES AND WE FEEL CERTAIN THAT IT WILL CONTINUE TO DO SO.  IF ITS
DECISION ON THE BALLOT IS NOT ACCEPTABLE, THE PLACE TO GO IS TO
CONGRESS, NOT TO US. 

ACCORDINGLY, WE REVERSE THE JUDGMENTS IN NOS. 138 AND 369 AND AFFIRM
THE JUDGMENT IN NO. 139.  IT IS SO ORDERED. 

FN1  SECTION 2, NINTH PROVIDES: 

"IF ANY DISPUTE SHALL ARISE AMONG A CARRIER'S EMPLOYEES AS TO WHO ARE
THE REPRESENTATIVES OF SUCH EMPLOYEES DESIGNATED AND AUTHORIZED IN
ACCORDANCE WITH THE REQUIREMENTS OF THIS CHAPTER, IT SHALL BE THE DUTY
OF THE MEDIATION BOARD, UPON REQUEST OF EITHER PARTY TO THE DISPUTE, TO
INVESTIGATE SUCH DISPUTE AND TO CERTIFY TO BOTH PARTIES, IN WRITING,
WITHIN THIRTY DAYS AFTER THE RECEIPT OF THE INVOCATION OF ITS SERVICES,
THE NAME OR NAMES OF THE INDIVIDUALS OR ORGANIZATIONS THAT HAVE BEEN
DESIGNATED AND AUTHORIZED TO REPRESENT THE EMPLOYEES INVOLVED IN THE
DISPUTE, AND CERTIFY THE SAME TO THE CARRIER.  UPON RECEIPT OF SUCH
CERTIFICATION THE CARRIER SHALL TREAT WITH THE REPRESENTATIVE SO
CERTIFIED AS THE REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES
OF THIS CHAPTER.  IN SUCH AN INVESTIGATION, THE MEDIATION BOARD SHALL
BE AUTHORIZED TO TAKE A SECRET BALLOT OF THE EMPLOYEES INVOLVED, OR TO
UTILIZE ANY OTHER APPROPRIATE METHOD OF ASCERTAINING THE NAMES OF THEIR
DULY DESIGNATED AND AUTHORIZED REPRESENTATIVES IN SUCH MANNER AS SHALL
INSURE THE CHOICE OF REPRESENTATIVES BY THE EMPLOYEES WITHOUT
INTERFERENCE, INFLUENCE, OR COERCION EXERCISED BY THE CARRIER.  IN THE
CONDUCT OF ANY ELECTION FOR THE PURPOSES HEREIN INDICATED THE BOARD
SHALL DESIGNATE WHO MAY PARTICIPATE IN THE ELECTION AND ESTABLISH THE
RULES TO GOVERN THE ELECTION, OR MAY APPOINT A COMMITTEE OF THREE
NEUTRAL PERSONS WHO AFTER HEARING SHALL WITHIN TEN DAYS DESIGNATE THE
EMPLOYEES WHO MAY PARTICIPATE IN THE ELECTION  ...  ."  45 U.S.C. SEC.
152, NINTH. 

FN2  INDEED IN THE KEYSTONE CASE DEALING WITH THE RAILWAY LABOR ACT,
VIRGINIAN R. CO. V. SYSTEM FEDERATION NO. 40, SUPRA, THE VALIDITY OF
THE BOARD'S CERTIFICATE WAS ATTACKED BECAUSE IT FAILED TO RECITE THE
NUMBER OF ELIGIBLE VOTERS IN THE CRAFT OR CLASS IN WHICH THE ELECTION
WAS HELD.  THE COURT FOUND IT UNNECESSARY TO DECIDE WHETHER THE
CERTIFICATE WOULD BE CONCLUSIVE ABSENT SUCH A FINDING, BUT IT
COMMENTED: 

"BUT WE THINK IT PLAIN THAT IF THE BOARD OMITS TO CERTIFY ANY OF THEM
(THE FACTS CONCERNING THE NUMBER OF ELIGIBLE VOTERS, THE NUMBER
PARTICIPATING AND THE CHOICE OF THE MAJORITY), THE OMITTED FACT IS OPEN
TO INQUIRY BY THE COURT ASKED TO ENFORCE THE COMMAND OF THE STATUTE
...  .  SUCH INQUIRY WAS MADE BY THE TRIAL COURT, WHICH FOUND THE
NUMBER OF ELIGIBLE VOTERS AND THUS ESTABLISHED THE CORRECTNESS OF THE
BOARD'S ULTIMATE CONCLUSION."  ID., AT 562. 

FN3  RUBY V. AMERICAN AIRLINES, INC., 323 F.2D 248, 255; WES CHAPTER,
FLIGHT ENGINEERS' INT'L ASSN. V. NATIONAL MEDIATION BOARD, 114 U.S.
APP. D.C. 229, 232, 314 F.2D 234, 237. 

FN4  IT SHOULD BE NOTED, HOWEVER, THAT IN NEARLY ALL CASES SUBSEQUENT
TO NOS. C-2252 AND C-2389, THE BOARD HAS HELD ELECTIONS AMONG CLERICAL,
OFFICE, STORES, FLEET AND PASSENGER SERVICE EMPLOYEES WITHOUT RE
EXAMINING THAT GROUPING AND WITHOUT NOTICEABLE PROTEST.  MR. THOMPSON,
EXECUTIVE SECRETARY OF THE BOARD, LISTS 19 SUCH CASES IN HIS AFFIDAVIT
IN THE DISTRICT COURT SUPPORTING THE BOARD'S MOTION TO DISMISS.  THIS
HARDLY SUPPORTS UNITED'S CONTENTION THAT THE BOARD IS CLINGING IN THIS
CASE TO A DETERMINATION IT HAS FOUND OBSOLETE. 

FN5  THE LEGISLATIVE HISTORY SUPPORTS THE VIEW THAT THE EMPLOYEES ARE
TO HAVE THE OPTION OF REJECTING COLLECTIVE REPRESENTATION.  THE BALLOT
THAT THE BOARD PROPOSES TO USE IN FUTURE ELECTIONS FULLY COMPORTS WITH
THIS CONCEPTION OF THE ACT.  USING THE BOARD'S BALLOT AN EMPLOYEE MAY
REFRAIN FROM JOINING A UNION AND REFUSE TO BARGAIN COLLECTIVELY.  ALL
HE NEED DO IS NOT VOTE AND THIS IS CONSIDERED A VOTE AGAINST
REPRESENTATION UNDER THE BOARD'S PRACTICE OF REQUIRING THAT A MAJORITY
OF THE ELIGIBLE VOTERS IN A CRAFT OR CLASS ACTUALLY VOTE FOR SOME
REPRESENTATIVE BEFORE THE ELECTION IS VALID.  THE PRACTICALITIES OF
VOTING - THE FACT THAT MANY WHO FAVOR SOME REPRESENTATION WILL NOT VOTE
- ARE IN FAVOR OF THE EMPLOYEE WHO WANTS "NO UNION."  INDEED, THE
METHOD PROPOSED BY THE BOARD MIGHT WELL BE MORE EFFECTIVE THAN
PROVIDING A "NO UNION" BOX, SINCE, IF ONE WERE ADDED, A FAILURE TO VOTE
WOULD THEN BE TAKEN AS A VOTE APPROVING THE CHOICE OF THE MAJORITY OF
THOSE VOTING.  THIS IS THE PRACTICE OF THE NATIONAL LABOR RELATIONS
BOARD. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE STEWART, DISSENTING. 

MY DISSENT STEMS FROM THE COURT'S APPROVAL OF THE FORM OF BALLOT USED
BY THE NATIONAL MEDIATION BOARD IN REPRESENTATION ELECTIONS.  AS I
UNDERSTAND ITS OPINION, THE COURT HOLDS THAT THE FORM OF BALLOT DEVISED
BY THE BOARD IS SUBJECT TO JUDICIAL REVIEW, AT LEAST FOR THE PURPOSE OF
DETERMINING WHETHER THE BOARD "ACTED IN EXCESS OF ITS STATUTORY
AUTHORITY."  WITH THAT I AGREE.  BUT THE COURT GOES ON TO HOLD THAT THE
BALLOT DEVISED BY THE BOARD DOES CONFORM WITH THE STATUTE.  WITH THAT I
CANNOT AGREE. 

                                I. 

NOTHING DECIDED IN SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320
U.S. 297, FORECLOSES A DETERMINATION BY THIS COURT OF THE VALIDITY OF
THE BALLOT FORM USED BY THE BOARD.  ON THE CONTRARY, THAT CASE, WHICH
INSULATED FROM JUDICIAL REVIEW THE BOARD'S ULTIMATE CRAFT OR CLASS
DETERMINATIONS, MAKES IT ALL THE MORE IMPERATIVE THAT THE BOARD BE
REQUIRED TO OPERATE BY FAIR AND LAWFUL PROCEDURES.  COMPARE SILVER V.
NEW YORK STOCK EXCHANGE, 373 U.S. 341, 361.  TO SAY THAT SWITCHMEN'S
UNION, BY INTERPRETING THE RAILWAY LABOR ACT (44 STAT. 577, AS AMENDED)
TO DEPRIVE COURTS OF JURISDICTION TO REVIEW CLASS OR CRAFT
DETERMINATIONS, ALSO DEPRIVED COURTS OF JURISDICTION TO REVIEW THE
FUNDAMENTAL PROCEDURES USED BY THE BOARD IN ARRIVING AT THOSE
DETERMINATIONS "WOULD INDEED BE TO 'TURN THE BLADE INWARD.'"  GRAHAM V.
BROTHERHOOD OF FIREMEN, 338 U.S. 232, 237. 

THE BALLOT LIES AT THE HEART OF THE BOARD'S CERTIFICATION MECHANISM. 
IT IS USED DAY IN AND DAY OUT AND WILL BE USED ON THOUSANDS OF
OCCASIONS IN THE FUTURE.  WHAT HAPPENED IN THIS VERY CASE ILLUSTRATES
THE VITAL AND SALUTARY EFFECT OF JUDICIAL SCRUTINY OF THE BOARD'S
PROCEDURES.  THE BALLOT FORM WHICH THE COURT OF APPEALS HELD ILLEGAL IN
THIS LITIGATION HAD BEEN USED BY THE BOARD FOR MANY YEARS.  YET THE
SOLICITOR GENERAL, AS A CONSEQUENCE OF THE GRANT OF CERTIORARI IN THIS
CASE, PERSUADED THE BOARD TO MODIFY THE BALLOT TO REDUCE ITS
AMBIGUITIES.  (FN1)  IF THE COURT WERE UNDERSTOOD AS HOLDING TODAY THAT
THERE CAN BE NO REVIEW OF THE BALLOT'S STRUCTURE, THE BOARD WOULD, OF
COURSE, BE FREE TO RETURN TO THE OLDER HISTORIC FORM WHICH THE
SOLICITOR GENERAL HAS VIRTUALLY CONCEDED IS UNFAIR AND UNLAWFUL.  (FN2)

    II. 

EVEN AS REVISED IN RESPONSE TO OUR GRANT OF CERTIORARI IN THIS CASE,
HOWEVER, THE FORM OF BALLOT TO BE USED BY THE BOARD CONTINUES TO LIST
SPACES ONLY FOR THE ORGANIZATIONS ACTUALLY COMPETING FOR
REPRESENTATION, WITH A BLANK SPACE LEFT FOR WRITING IN AN UNLISTED
ORGANIZATION.  NO SPACE IS PROVIDED FOR VOTING FOR "NO UNION." 
EMPLOYEES ARE STILL CONFRONTED WITH A BALLOT UPON WHICH THEY CAN MARK A
CHOICE ONLY AMONG REPRESENTATIVES, WITHOUT AN OPPORTUNITY TO MARK A
CHOICE FOR NO REPRESENTATIVE AT ALL.  THIS BALLOT FORM IS DIRECTLY
ATTRIBUTABLE TO THE BOARD'S VIEW OF WHAT THE BARGAINING PATTERN SHOULD
BE IN THE AIRLINE INDUSTRY.  THE BOARD HAS STATED THAT "THE ACT DOES
NOT CONTEMPLATE THAT ITS PURPOSES SHALL BE ACHIEVED, NOR IS IT CLEAR
THAT THEY CAN BE ACHIEVED, WITHOUT EMPLOYEE REPRESENTATIVES ...  ." 
(FN3)  AS A RESULT, THE BOARD HAS DESIGNED ITS BALLOT TO ENCOURAGE
EMPLOYEES TO CHOOSE A LABOR ORGANIZATION TO REPRESENT THEM
COLLECTIVELY.  I BELIEVE BOTH THE LANGUAGE OF THE ACT AND ITS
LEGISLATIVE HISTORY BELIE THIS VIEW AND, FOR THAT REASON, I WOULD ORDER
THE BOARD TO RECONSIDER THE FORM OF ITS BALLOT.    SECTION 2, FOURTH
PROVIDES THAT "EMPLOYEES SHALL HAVE THE RIGHT TO ORGANIZE AND BARGAIN
COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING.  THE
MAJORITY OF ANY CRAFT OR CLASS OF EMPLOYEES SHALL HAVE THE RIGHT TO
DETERMINE WHO SHALL BE THE REPRESENTATIVE OF THE CRAFT OR CLASS ...
."  THE ACT PERFORMS THE FUNCTION, FAMILIAR TO THE REST OF OUR LABOR
LEGISLATION, OF FURNISHING THE OPPORTUNITY FOR MAJORITY DETERMINATION
WITHIN EACH EMPLOYEE GROUP OF WHAT THE NATURE OF BARGAINING SHALL BE.
BUT THE ACT IS NOT COMPULSORY.  EMPLOYEES ARE NOT REQUIRED TO ORGANIZE,
NOR ARE THEY REQUIRED TO SELECT LABOR UNIONS OR ANYONE ELSE AS THEIR
REPRESENTATIVES.  IT HAS ALWAYS BEEN RECOGNIZED THAT UNDER THE LAW THE
EMPLOYEES HAVE THE OPTION OF REJECTING COLLECTIVE REPRESENTATION. 

THE HOUSE REPORT ON THE BILL, STATED: 

"2.  IT (H.R. 9861) PROVIDES THAT THE EMPLOYEES SHALL BE FREE TO JOIN
ANY LABOR UNION OF THEIR CHOICE AND LIKEWISE BE FREE TO REFRAIN FROM
JOINING ANY UNION IF THAT BE THEIR DESIRE AND FORBIDS INTERFERENCE BY
THE CARRIERS' OFFICERS WITH THE EXERCISE OF SAID RIGHTS."  (H.R. REP.
NO. 1944 TO ACCOMPANY H.R. 9861, COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, 73D CONG., 2D SESS., 1934, P. 2.) 

MUCH OF THE TESTIMONY ON THE BILL WAS GIVEN BY COMMISSIONER JOSEPH B.
EASTMAN, FEDERAL COORDINATOR OF TRANSPORTATION AND THE PRINCIPAL
DRAFTSMAN OF THE LEGISLATION.  HIS REPLY TO A QUESTION BY CONGRESSMAN
HUDDLESTON REFLECTS THE CONTEMPORARY UNDERSTANDING OF THE ACT: 

"COMMISSIONER EASTMAN.  NO; IT DOES NOT REQUIRE COLLECTIVE BARGAINING
ON THE PART OF THE EMPLOYEES.  IF THE EMPLOYEES DO NOT WISH TO
ORGANIZE, PREFER TO DEAL INDIVIDUALLY WITH THE MANAGEMENT WITH REGARD
TO THESE MATTERS, WHY, THAT COURSE IS LEFT OPEN TO THEM, OR IT SHOULD
BE."  (HEARINGS ON H.R. 7650, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, 73D CONG., 2D SESS., 1934, P. 57.) 

AND IN THE SENATE, SENATOR WAGNER INSISTED THAT THIS WAS THE BURDEN
OF THE BILL: 

"SENATOR WAGNER  ...  .  I DIDN'T UNDERSTAND THESE PROVISIONS
COMPELLED AN EMPLOYEE TO JOIN ANY PARTICULAR UNION.  I THOUGHT THE
PURPOSE OF IT WAS JUST THE OPPOSITE, TO SEE THAT THE MEN HAVE ABSOLUTE
LIBERTY TO JOIN OR NOT TO JOIN ANY UNION OR TO REMAIN UNORGANIZED. 

"MR. CLEMENT.  THAT IS THE WAY WE HOPE THEY WILL READ WHEN THEY ARE
FINALLY AMENDED."  (HEARINGS ON S. 3266, SENATE COMMITTEE ON INTERSTATE
COMMERCE, 73D CONG., 2D SESS., 1934, P. 76.) 

SEE ALSO HEARINGS, ID., P. 12.  THAT LEGISLATIVE HISTORY IS DIRECTLY
COUNTER TO THE CONCEPTION OF THE ACT REFLECTED BY THE BALLOT FORM USED
BY THE BOARD, AND SPELLED OUT IN THE PARTICULARIZED RECORD OF THE
PRESENT CASE.  (FN4) 

THE FORM OF THE BALLOT IS MARKEDLY DIFFERENT FROM THAT EVOLVED BY THE
NATIONAL LABOR RELATIONS BOARD UNDER A STATUTE WHICH CONTAINED ALMOST
IDENTICAL WORDING AT THE TIME THE BALLOT WAS DESIGNED.  (FN5)
ORIGINALLY THE LABOR BOARD, LIKE THE MEDIATION BOARD, DID NOT INCLUDE A
SPACE FOR A "NO UNION" VOTE.  SINCE JULY 1937, HOWEVER, IT HAS
CONSISTENTLY PLACED SUCH A SLOT ON THE BALLOT TO INSURE THAT AN
EMPLOYEE'S VOTE FOR A PARTICULAR REPRESENTATIVE DOES NOT SPRING FROM A
FEELING THAT THE VYING ORGANIZATIONS PRESENT THE ONLY ALTERNATIVES
AVAILABLE.  "THE POLICY ADOPTED BY THE BOARD IS DESIGNED MERELY TO MAKE
SURE THAT THE VOTES RECORDED FOR A PARTICULAR REPRESENTATIVE EXPRESS A
FREE CHOICE RATHER THAN A CHOICE IN DEFAULT OF THE POSSIBILITY OF
EXPRESSING DISAPPROVAL OF BOTH OR ALL PROPOSED REPRESENTATIVES."  IN RE
INTERLAKE IRON CORP., 4 N.L.R.B. 55, 61.  "THE ACT  ...  DOES NOT
REQUIRE AN UNWILLING MAJORITY OF EMPLOYEES TO BARGAIN THROUGH
REPRESENTATIVES.  IT MERELY GUARANTEES AND PROTECTS THAT RIGHT OF A
MAJORITY IF IT CHOOSES TO EXERCISE IT."  IBID. 

CERTAINLY THE BOARD MAY USE ALTERNATE DEVICES FOR DIVINING THE
DESIRES OF THE EMPLOYEES.  BUT EACH DEVICE MUST BE TESTED WITHIN ITS
OWN FRAMEWORK.  WHERE THE BOARD PURPORTS TO GAIN ITS INFORMATION
THROUGH THE TRADITIONAL SYSTEM OF BALLOTING THE EMPLOYEES, ALL PARTIES
RELY ON THAT ELECTION TO YIELD A MEANINGFUL RESULT.  HERE THE BOARD
DECIDED TO EMPLOY THE SECRET BALLOT AND RELY ON ITS RESULTS
EXCLUSIVELY.  AT THE LEAST THEN, THE BALLOT MUST UNAMBIGUOUSLY CONVEY
TO EACH EMPLOYEE THE CHOICES AVAILABLE TO HIM UNDER THE LAW.  (FN6) 

BECAUSE THE NATIONAL MEDIATION BOARD HAS HEWN TO THE MISTAKEN BELIEF
THAT ITS DUTY IS TO ENCOURAGE COLLECTIVE REPRESENTATION IN THE AIRLINE
INDUSTRY, I WOULD REMAND THIS CASE TO THE BOARD FOR FURTHER
CONSIDERATION IN THE LIGHT OF THE VIEWS HERE EXPRESSED.  I WOULD NOT
ATTEMPT TO DICTATE TO THE BOARD PRECISELY WHAT FORM THE BALLOT SHOULD
ULTIMATELY TAKE.  WITHIN A BROAD RANGE, THAT QUESTION SURELY LIES
WITHIN THE BOARD'S DISCRETION.  BUT IT IS A QUESTION THE BOARD SHOULD
CONFRONT WITH A CORRECT UNDERSTANDING OF THE LAW. 

FN1  THE SOLICITOR GENERAL'S CHANGES WOULD LEAVE THE SLOTS ON THE
BALLOT INTACT (NOT SUPPLYING A "NO UNION" BOX) BUT WOULD APPEND THE
FOLLOWING CAPTION:

           "INSTRUCTIONS FOR VOTING 

"NO EMPLOYEE IS REQUIRED TO VOTE.  IF LESS THAN A MAJORITY OF THE
EMPLOYEES CAST VALID BALLOTS, NO REPRESENTATIVE WILL BE CERTIFIED." 

IT IS THIS REVISED FORM OF BALLOT WHICH THE COURT TODAY APPROVES,
RATHER THAN THE OLD FORM WHICH WAS BEFORE THE COURT OF APPEALS. 

FN2  BEFORE SWITCHMEN'S UNION THERE WERE SEVERAL DECISIONS WHICH
FURNISHED THE NATIONAL MEDIATION BOARD WITH CLARIFYING INTERPRETATIONS
OF THE ACT.  THE BOARD FOUND THESE "DECISIONS ARE VERY HELPFUL  ...  IN
THAT THEY SERVE TO SETTLE ISSUES WHICH, IN THE PAST, HAVE FREQUENTLY
ARISEN TO TROUBLE THE ORDERLY AND PROMPT ADJUSTMENT OF DISPUTES OVER
REPRESENTATION BETWEEN DIFFERENT FACTIONS AMONG EMPLOYEES."  ANNUAL
REPORT OF THE NATIONAL MEDIATION BOARD, 1938, PP. 5-6. 

FN3  ADMINISTRATION OF THE RAILWAY LABOR ACT BY THE NATIONAL
MEDIATION BOARD, 1934-1957, P. 15. 

FN4  IN A LETTER TO UNITED AIR LINES, REJECTING ITS OBJECTIONS TO THE
FORM OF THE BALLOT, THE EXECUTIVE SECRETARY OF THE BOARD STATED:
"INTRODUCTION OF A 'YES' OR 'NO' BALLOT WOULD CONTRIBUTE TO, IF IT DID
NOT ACTUALLY ENCOURAGE, AN ATTEMPT TO CIRCUMVENT THE MANDATE OF
CONGRESS THAT REPRESENTATIVES BE DESIGNATED BY CARRIERS AND THEIR
EMPLOYEES FOR THE PURPOSES DESCRIBED IN SECTION 2, FIRST AND SECOND OF
THE RAILWAY LABOR ACT  ...  ."  LETTER TO CHARLES MASON FROM EXECUTIVE
SECRETARY OF THE NATIONAL MEDIATION BOARD, JANUARY 24, 1963. 

FN5  THE ORIGINAL SEC. 9(C) OF THE WAGNER ACT, 49 STAT. 453, STATED
THE LABOR BOARD'S POWERS IN THE FOLLOWING LANGUAGE: 

"WHENEVER A QUESTION AFFECTING COMMERCE ARISES CONCERNING THE
REPRESENTATION OF EMPLOYEES, THE BOARD MAY INVESTIGATE SUCH CONTROVERSY
AND CERTIFY TO THE PARTIES, IN WRITING, THE NAME OR NAMES OF THE
REPRESENTATIVES THAT HAVE BEEN DESIGNATED OR SELECTED.  IN ANY SUCH
INVESTIGATION, THE BOARD SHALL PROVIDE FOR AN APPROPRIATE HEARING UPON
DUE NOTICE, EITHER IN CONJUNCTION WITH A PROCEEDING UNDER SECTION 10 OR
OTHERWISE, AND MAY TAKE A SECRET BALLOT OF EMPLOYEES, OR UTILIZE ANY
OTHER SUITABLE METHOD TO ASCERTAIN SUCH REPRESENTATIVES."  COMPARE SEC.
2, NINTH OF THE RAILWAY LABOR ACT:

"IF ANY DISPUTE SHALL ARISE AMONG A CARRIER'S EMPLOYEES AS TO WHO ARE
THE REPRESENTATIVES OF SUCH EMPLOYEES DESIGNATED AND AUTHORIZED IN
ACCORDANCE WITH THE REQUIREMENTS OF THIS CHAPTER, IT SHALL BE THE DUTY
OF THE MEDIATION BOARD, UPON REQUEST OF EITHER PARTY TO THE DISPUTE, TO
INVESTIGATE SUCH DISPUTE AND TO CERTIFY TO BOTH PARTIES, IN WRITING,
WITHIN THIRTY DAYS AFTER THE RECEIPT OF THE INVOCATION OF ITS SERVICES,
THE NAME OR NAMES OF THE INDIVIDUALS OR ORGANIZATIONS THAT HAVE BEEN
DESIGNATED AND AUTHORIZED TO REPRESENT THE EMPLOYEES INVOLVED IN THE
DISPUTE, AND CERTIFY THE SAME TO THE CARRIER  ...  .  IN SUCH AN
INVESTIGATION, THE MEDIATION BOARD SHALL BE AUTHORIZED TO TAKE A SECRET
BALLOT OF THE EMPLOYEES INVOLVED, OR TO UTILIZE ANY OTHER APPROPRIATE
METHOD OF ASCERTAINING THE NAMES OF THEIR DULY DESIGNATED AND
AUTHORIZED REPRESENTATIVES IN SUCH MANNER AS SHALL INSURE THE CHOICE OF
REPRESENTATIVES BY THE EMPLOYEES WITHOUT INTERFERENCE, INFLUENCE, OR
COERCION EXERCISED BY THE CARRIER  ...  ."  45 U.S.C. SEC. 152, NINTH
(1958 ED.). 

THE SIMILARITY IN THE PURPOSES OF THE WAGNER ACT AND THE RAILWAY
LABOR ACT WAS POINTED OUT IN THE REPORT OF THE HOUSE COMMITTEE ON LABOR
WHICH STATED THAT "THE BILL IS MERELY AN AMPLIFICATION AND FURTHER
CLARIFICATION OF THE PRINCIPLES ENACTED INTO LAW BY THE RAILWAY LABOR
ACT  ...  ."  H.R. REP. NO. 1147, 74TH CONG., 1ST SESS., P. 3.  SEE 40
OP. ATTY. GEN. 541 (ATTORNEY GENERAL CLARK). 

FN6  PRIOR TO THIS LITIGATION, THE ONLY COURT TO CONSIDER THE BALLOT
EMPLOYED BY THE NATIONAL MEDIATION BOARD FOUND THAT FAILURE TO INCLUDE
A "NO UNION" SLOT DEPRIVED THE EMPLOYEES OF A "FREE CHOICE."  "IT IS
MANIFEST THAT THIS BALLOT DID NOT PRESENT THE ISSUE TO THE ELIGIBLE
VOTERS."  MCNULTY V. NATIONAL MEDIATION BOARD, 18 F. SUPP. 494, 501
(D.C.N.D.N.Y.). 
..END :
















HARMAN V. FORSSENIUS 380 U.S. 528 


NO. 360.  ARGUED MARCH 1-2, 1965.  - DECIDED APRIL 27, 1965.  - 235 F.
SUPP. 66, AFFIRMED. 


IN ANTICIPATION OF THE PROMULGATION OF THE TWENTY-FOURTH AMENDMENT
ABOLISHING THE POLL TAX AS A REQUIREMENT FOR VOTING IN FEDERAL
ELECTIONS, VIRGINIA ELIMINATED THE POLL TAX AS AN ABSOLUTE PREREQUISITE
TO VOTING IN FEDERAL ELECTIONS AND IN ITS STEAD SUBSTITUTED A PROVISION
WHEREBY THE FEDERAL VOTER COULD QUALIFY EITHER BY PAYING THE CUSTOMARY
POLL TAX OR BY FILING A CERTIFICATE OF RESIDENCE SIX MONTHS BEFORE THE
ELECTION.  IN SUITS ATTACKING THE CONSTITUTIONALITY OF THE VIRGINIA
STATUTES, THE THREE-JUDGE DISTRICT COURT REFUSED TO ABSTAIN TO AFFORD
THE VIRGINIA COURTS AN OPPORTUNITY TO PASS ON UNDERLYING ISSUES OF
STATE LAW AND TO CONSTRUE THE STATUTES INVOLVED.  REACHING THE MERITS,
THE DISTRICT COURT HELD THE CERTIFICATE OF RESIDENCE REQUIREMENT
INVALID AS AN ADDITIONAL "QUALIFICATION" IMPOSED SOLELY UPON FEDERAL
VOTERS IN VIOLATION OF ART. I, SEC. 2, AND THE SEVENTEENTH AMENDMENT. 
HELD: 

1.  THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO
ABSTAIN:  THE STATE STATUTES ARE CLEAR AND UNAMBIGUOUS, THE RIGHTS
ALLEGEDLY IMPAIRED ARE THE FUNDAMENTAL CIVIL RIGHTS OF A BROAD CLASS OF
CITIZENS, AND THE IMMEDIACY OF THE PROBLEM FACING THE DISTRICT COURT
WAS EVIDENT.  PP. 534-537. 

2.  THE CERTIFICATE OF RESIDENCE REQUIREMENT IS A MATERIAL
REQUIREMENT IMPOSED UPON THOSE WHO REFUSE TO SURRENDER THEIR
CONSTITUTIONAL RIGHT TO VOTE IN FEDERAL ELECTIONS WITHOUT PAYING A POLL
TAX AND THUS CONSTITUTES AN ABRIDGMENT OF THE RIGHT TO VOTE IN
VIOLATION OF THE TWENTY-FOURTH AMENDMENT.  PP. 538-544. 

(A)  THE POLL TAX IS ABOLISHED ABSOLUTELY AS A PREREQUISITE TO VOTING
IN FEDERAL ELECTIONS, AND NO EQUIVALENT OR MILDER SUBSTITUTE MAY BE
IMPOSED.  P. 542. 

(B)  THE STATUTORY SCHEME MAY NOT BE SAVED ON THE GROUND THAT THE
CERTIFICATE OF RESIDENCE REQUIREMENT IS A NECESSARY METHOD OF PROVING
RESIDENCE, FOR CONSTITUTIONAL DEPRIVATIONS MAY NOT BE JUSTIFIED BY SOME
REMOTE ADMINISTRATIVE BENEFIT TO THE STATE.  PP. 542-544. 

HARMAN ET AL. V. FORSSENIUS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON IN THIS CASE TO CONSTRUE, FOR THE FIRST TIME, THE
TWENTY-FOURTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES: 

"THE RIGHT OF CITIZENS OF THE UNITED STATES TO VOTE IN ANY PRIMARY OR
OTHER ELECTION FOR PRESIDENT OR VICE PRESIDENT, FOR ELECTORS FOR
PRESIDENT OR VICE PRESIDENT, OR FOR SENATOR OR REPRESENTATIVE IN
CONGRESS, SHALL NOT BE DENIED OR ABRIDGED BY THE UNITED STATES OR ANY
STATE BY REASON OF FAILURE TO PAY ANY POLL TAX OR OTHER TAX." 

THE PRECISE ISSUE IS WHETHER SEC. 24-17.2 OF THE VIRGINIA CODE -
WHICH PROVIDES THAT IN ORDER TO QUALIFY TO VOTE IN FEDERAL ELECTIONS
ONE MUST EITHER PAY A POLL TAX OR FILE A WITNESSED OR NOTARIZED
CERTIFICATE OF RESIDENCE (FN1) - CONTRAVENES THIS COMMAND. 

PRIOR TO THE ADOPTION OF THE TWENTY-FOURTH AMENDMENT, THE VIRGINIA
CONSTITUTION (ART. II, SECS. 18-20) AND STATUTES (VA. CODE ANN. SECS.
24-17, 24-67 (1950)) ESTABLISHED UNIFORM STANDARDS FOR QUALIFICATION
FOR VOTING IN BOTH FEDERAL AND STATE ELECTIONS.  THE REQUIREMENTS WERE:
(1) UNITED STATES CITIZENSHIP; (2) A MINIMUM AGE OF TWENTY-ONE; (3)
RESIDENCE IN THE STATE FOR ONE YEAR, IN THE CITY OR COUNTY FOR SIX
MONTHS, AND IN THE VOTING PRECINCT FOR THIRTY DAYS; AND (4) PAYMENT "AT
LEAST SIX MONTHS PRIOR TO THE ELECTION  ...  TO THE PROPER OFFICER ALL
STATE POLL TAXES ($1.50 ANNUALLY) ASSESSED OR ASSESSABLE AGAINST HIM
FOR THREE YEARS NEXT PRECEDING SUCH ELECTION."  (FN2)  THE STATUTES
FURTHER PROVIDED FOR PERMANENT REGISTRATION.  (FN3)  ONCE REGISTERED,
THE VOTERS COULD QUALIFY FOR ELECTIONS IN SUBSEQUENT YEARS MERELY BY
PAYING THE POLL TAXES. 

IN 1963, IN ANTICIPATION OF THE PROMULGATION OF THE TWENTY-FOURTH
AMENDMENT, THE GOVERNOR OF VIRGINIA CONVENED A SPECIAL SESSION OF THE
VIRGINIA GENERAL ASSEMBLY.  ON NOVEMBER 21 OF THAT YEAR, THE GENERAL
ASSEMBLY ENACTED TWO ACTS (FN4) DESIGNED: 

"(1) TO ENABLE PERSONS TO REGISTER AND VOTE IN FEDERAL ELECTIONS
WITHOUT THE PAYMENT OF POLL TAX OR OTHER TAX AS REQUIRED BY THE 24TH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, (2) TO CONTINUE IN
EFFECT IN ALL OTHER ELECTIONS THE PRESENT REGISTRATION AND VOTING
REQUIREMENTS OF THE CONSTITUTION OF VIRGINIA, AND (3) TO PROVIDE
METHODS BY WHICH ALL PERSONS REGISTERED TO VOTE IN FEDERAL OR OTHER
ELECTIONS MAY PROVE THAT THEY MEET THE RESIDENCE REQUIREMENTS OF

NO CHANGES WERE MADE WITH REGARD TO QUALIFICATION FOR VOTING IN STATE
ELECTIONS.  WITH REGARD TO FEDERAL ELECTIONS, HOWEVER, THE PAYMENT OF A
POLL TAX AS AN ABSOLUTE PREREQUISITE TO REGISTRATION AND VOTING WAS
ELIMINATED, AND A PROVISION WAS ADDED REQUIRING THE FEDERAL VOTER TO
FILE A CERTIFICATE OF RESIDENCE IN EACH ELECTION YEAR OR, AT HIS
OPTION, TO PAY THE CUSTOMARY POLL TAXES.  THE STATUTE PROVIDES THAT THE
CERTIFICATE OF RESIDENCE MUST BE FILED NO EARLIER THAN OCTOBER 1 OF THE
YEAR IMMEDIATELY PRECEDING THAT IN WHICH THE VOTER DESIRES TO VOTE AND
NOT LATER THAN SIX MONTHS PRIOR TO THE ELECTION.  THE VOTER MUST STATE
IN THE CERTIFICATE (WHICH MUST BE NOTARIZED OR WITNESSED) HIS PRESENT
ADDRESS, THAT HE IS CURRENTLY A RESIDENT OF VIRGINIA, THAT HE HAS BEEN
A RESIDENT SINCE THE DATE OF HIS REGISTRATION, AND THAT HE DOES NOT
PRESENTLY INTEND TO REMOVE FROM THE CITY OR COUNTY OF WHICH HE IS A
RESIDENT PRIOR TO THE NEXT GENERAL ELECTION.  VA. CODE ANN. SEC. 24
17.2 (1964 SUPP.).  THUS, AS A RESULT OF THE 1963 ACTS, A CITIZEN AFTER
REGISTRATION MAY VOTE IN BOTH FEDERAL AND STATE ELECTIONS UPON THE
PAYMENT OF ALL ASSESSABLE POLL TAXES.  VA.  CODE ANN. SEC. 24-17 (1964
SUPP.).  IF HE HAS NOT PAID SUCH TAXES HE CANNOT VOTE IN STATE
ELECTIONS, AND MAY VOTE IN FEDERAL ELECTIONS ONLY UPON FILING A
CERTIFICATE OF RESIDENCE IN EACH ELECTION YEAR.  VA. CODE ANN. SECS. 24
17.1, 24-17.2 (1964 SUPP.). 

THE PRESENT APPEAL ORIGINATED AS TWO SEPARATE CLASS ACTIONS, BROUGHT
BY APPELLEES IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA, ATTACKING THE FOREGOING PROVISIONS OF THE 1963
VIRGINIA LEGISLATION AS VIOLATIVE OF ART. I, SEC. 2, OF THE
CONSTITUTION OF THE UNITED STATES, AND THE FOURTEENTH, SEVENTEENTH, AND
TWENTY-FOURTH AMENDMENTS THERETO.  THE COMPLAINTS, WHICH PRAYED FOR
DECLARATORY AND INJUNCTIVE RELIEF, NAMED AS DEFENDANTS (APPELLANTS
HERE) THE THREE MEMBERS OF THE VIRGINIA STATE BOARD OF ELECTIONS AND,
IN ONE CASE, THE COUNTY TREASURER OF ROANOKE COUNTY, VIRGINIA, AND, IN
THE OTHER, THE DIRECTOR OF FINANCE OF FAIRFAX COUNTY.  THE JURISDICTION
OF THE DISTRICT COURT WAS INVOKED PURSUANT TO 28 U.S.C. SECS. 1331,
1343, 2201 (1958 ED.), AND A COURT OF THREE JUDGES WAS CONVENED
PURSUANT TO 28 U.S.C. SECS. 2281, 2284 (1958 ED.). 

THE DISTRICT COURT DENIED THE STATE'S MOTION TO STAY THE PROCEEDINGS
IN ORDER TO GIVE THE VIRGINIA COURTS AN OPPORTUNITY TO RESOLVE THE
ISSUES AND INTERPRET THE STATUTES INVOLVED.  THE COURT FURTHER DENIED
THE STATE'S MOTIONS TO DISMISS FOR FAILURE TO JOIN INDISPENSABLE
PARTIES, FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF COULD BE GRANTED,
AND FOR WANT OF A JUSTICIABLE CONTROVERSY.  (FN6) ON THE MERITS, THE
DISTRICT COURT HELD THAT THE CERTIFICATE OF RESIDENCE REQUIREMENT WAS
"A DISTINCT QUALIFICATION" OR AT LEAST AN "INCREASE IN THE QUANTUM OF
NECESSARY PROOF OF RESIDENCE" IMPOSED SOLELY ON THE FEDERAL VOTER, AND
THAT IT THEREFORE VIOLATED ART. I, SEC. 2, AND THE SEVENTEENTH
AMENDMENT, WHICH PROVIDE THAT ELECTORS CHOOSING A REPRESENTATIVE OR
SENATOR IN THE CONGRESS OF THE UNITED STATES "SHALL HAVE THE
QUALIFICATIONS REQUISITE FOR ELECTORS OF THE MOST NUMEROUS BRANCH OF
THE STATE LEGISLATURE."  THE COURT REJECTED THE ARGUMENT THAT THE
RESIDENCY CERTIFICATE WAS MERELY A METHOD, LIKE THE POLL TAX, OF
PROVING THE RESIDENCE QUALIFICATION WHICH IS IMPOSED ON BOTH FEDERAL
AND STATE VOTERS.  ACCORDINGLY, THE DISTRICT COURT ENTERED AN ORDER
DECLARING INVALID THE PORTIONS OF THE 1963 VIRGINIA LEGISLATION WHICH
REQUIRED THE FILING OF A CERTIFICATE OF RESIDENCE AND ENJOINING
APPELLANTS FROM REQUIRING COMPLIANCE BY A VOTER WITH SAID PORTIONS OF
THE 1963 ACTS.  WE NOTED PROBABLE JURISDICTION.  379 U.S. 810. 

WE HOLD THAT SEC. 24-17.2, IS REPUGNANT TO THE TWENTY-FOURTH
AMENDMENT AND AFFIRM THE DECISION OF THE DISTRICT COURT ON THAT BASIS. 
WE THEREFORE FIND IT UNNECESSARY TO DETERMINE WHETHER THAT SECTION
VIOLATES ART. I, SEC. 2, AND THE SEVENTEENTH AMENDMENT. 

                   I. 

AT THE OUTSET, WE ARE FACED WITH THE STATE'S CONTENTION THAT THE
DISTRICT COURT SHOULD HAVE STAYED THE PROCEEDINGS UNTIL THE COURTS OF
VIRGINIA HAD BEEN AFFORDED A REASONABLE OPPORTUNITY TO PASS ON
UNDERLYING ISSUES OF STATE LAW AND TO CONSTRUE THE STATUTES INVOLVED. 
WE HOLD THAT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
REFUSING TO POSTPONE THE EXERCISE OF ITS JURISDICTION. 

IN APPLYING THE DOCTRINE OF ABSTENTION, A FEDERAL DISTRICT COURT IS
VESTED WITH DISCRETION TO DECLINE TO EXERCISE OR TO POSTPONE THE
EXERCISE OF ITS JURISDICTION IN DEFERENCE TO STATE COURT RESOLUTION OF
UNDERLYING ISSUES OF STATE LAW.  RAILROAD COMM'N V. PULLMAN CO., 312
U.S. 496.  (FN7) WHERE RESOLUTION OF THE FEDERAL CONSTITUTIONAL
QUESTION IS DEPENDENT UPON, OR MAY BE MATERIALLY ALTERED BY, THE
DETERMINATION OF AN UNCERTAIN ISSUE OF STATE LAW, ABSTENTION MAY BE
PROPER IN ORDER TO AVOID UNNECESSARY FRICTION IN FEDERAL-STATE
RELATIONS, INTERFERENCE WITH IMPORTANT STATE FUNCTIONS, TENTATIVE
DECISIONS ON QUESTIONS OF STATE LAW, AND PREMATURE CONSTITUTIONAL
ADJUDICATION.   E.G., RAILROAD COMM'N V. PULLMAN CO., SUPRA.  THE
DOCTRINE, HOWEVER, CONTEMPLATES THAT DEFERENCE TO STATE COURT
ADJUDICATION ONLY BE MADE WHERE THE ISSUE OF STATE LAW IS UNCERTAIN. 
DAVIS V. MANN, 377 U.S. 678, 690; MCNEESE V. BOARD OF EDUCATION, 373
U.S. 668, 673-674; CHICAGO V. ATCHISON, T.&S.F.R. CO., 357 U.S. 77,
84.  (FN8)  IF THE STATE STATUTE IN QUESTION, ALTHOUGH NEVER
INTERPRETED BY A STATE TRIBUNAL, IS NOT FAIRLY SUBJECT TO AN
INTERPRETATION WHICH WILL RENDER UNNECESSARY OR SUBSTANTIALLY MODIFY
THE FEDERAL CONSTITUTIONAL QUESTION, IT IS THE DUTY OF THE FEDERAL
COURT TO EXERCISE ITS PROPERLY INVOKED JURISDICTION.  BAGGETT V.
BULLITT, 377 U.S. 360, 375-379.  THUS, "RECOGNITION OF THE ROLE OF
STATE COURTS AS THE FINAL EXPOSITORS OF STATE LAW IMPLIES NO DISREGARD
FOR THE PRIMACY OF THE FEDERAL JUDICIARY IN DECIDING QUESTIONS OF
FEDERAL LAW."  ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS,
375 U.S. 411, 415-416. 

THE STATE STATUTES INVOLVED HERE ARE CLEAR AND UNAMBIGUOUS IN ALL
MATERIAL RESPECTS.  (FN9)  WHILE THE STATE SUGGESTS THAT THE VIRGINIA
TRIBUNALS ARE "UNQUESTIONABLY FAR BETTER EQUIPPED THAN THE LOWER
FEDERAL COURT TO UNRAVEL THE SKEINS OF LOCAL LAW AND ADMINISTRATIVE
PRACTICES IN WHICH THE APPELLEES' CLAIMS ARE ENTANGLED," (FN10) THE
STATE DOES NOT POINT TO ANY PROVISION IN THE LEGISLATION WHICH LEAVES
"REASONABLE ROOM FOR A CONSTRUCTION BY THE VIRGINIA COURTS WHICH MIGHT
AVOID IN WHOLE OR IN PART THE NECESSITY FOR FEDERAL CONSTITUTIONAL
ADJUDICATION, OR AT LEAST MATERIALLY CHANGE THE NATURE OF THE
PROBLEM."  HARRISON V. NAACP, 360 U.S. 167, 177. 

IN SPITE OF THE CLARITY OF THE 1963 LEGISLATION, THE STATE ARGUES
THAT THE DISTRICT COURT SHOULD HAVE ABSTAINED ON THE GROUND THAT IF THE
CERTIFICATE OF RESIDENCE REQUIREMENT WERE FOUND TO BE A QUALIFICATION
DISTINCT FROM THOSE SPECIFIED IN THE VIRGINIA CONSTITUTION, IT WOULD BE
INVALID AS A MATTER OF VIRGINIA LAW AND "A CRUCIAL FEDERAL
CONSTITUTIONAL ISSUE WOULD ACCORDINGLY DISAPPEAR FROM THE CASE."  WE
FIND LITTLE FORCE IN THIS ARGUMENT.  THE SECTION OF THE VIRGINIA
CONSTITUTION (ART. II, SEC. 18) ON WHICH THE STATE RELIES EXPRESSLY
LIMITS THE FRANCHISE TO CITIZENS WHO HAVE MET CERTAIN RESIDENCY
REQUIREMENTS.  (FN11)  THE STATUTE IN ISSUE, SEC. 24-17.2, REQUIRES THE
VOTER TO CERTIFY THAT HE MEETS THOSE RESIDENCE REQUIREMENTS.  IT IS
THUS DIFFICULT TO ENVISAGE HOW SEC. 24-17.2 COULD BE CONSTRUED AS
SETTING FORTH A QUALIFICATION NOT FOUND IN THE VIRGINIA CONSTITUTION. 
(FN12) 

IN ADDITION TO THE CLARITY OF THE VIRGINIA STATUTES, SUPPORT FOR THE
DISTRICT COURT'S REFUSAL TO STAY THE PROCEEDINGS IS FOUND IN THE NATURE
OF THE CONSTITUTIONAL DEPRIVATION ALLEGED AND THE PROBABLE CONSEQUENCES
OF ABSTAINING.  GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY,
377 U.S. 218, 229; BAGGETT V. BULLITT, 377 U.S. 360, 375-379.  THE
DISTRICT COURT WAS FACED WITH TWO CLASS ACTIONS ATTACKING A STATUTORY
SCHEME ALLEGEDLY IMPAIRING THE RIGHT TO VOTE IN VIOLATION OF ART. I,
SEC. 2, AND THE FOURTEENTH, SEVENTEENTH AND TWENTY-FOURTH AMENDMENTS. 
AS THIS COURT HAS STRESSED ON NUMEROUS OCCASIONS, "THE RIGHT TO VOTE
FREELY FOR THE CANDIDATE OF ONE'S CHOICE IS OF THE ESSENCE OF A
DEMOCRATIC SOCIETY, AND ANY RESTRICTIONS ON THAT RIGHT STRIKE AT THE
HEART OF REPRESENTATIVE GOVERNMENT."  REYNOLDS V. SIMS, 377 U.S. 533,
555.  THE RIGHT IS FUNDAMENTAL "BECAUSE PRESERVATIVE OF ALL RIGHTS." 
YICK WO V. HOPKINS, 118 U.S. 356, 370.  IN APPRAISING THE MOTION TO
STAY PROCEEDINGS, THE DISTRICT COURT WAS THUS FACED WITH A CLAIMED
IMPAIRMENT OF THE FUNDAMENTAL CIVIL RIGHTS OF A BROAD CLASS OF
CITIZENS.  THE MOTION WAS HEARD ABOUT TWO MONTHS PRIOR TO THE DEADLINE
FOR MEETING THE STATUTORY REQUIREMENTS AND JUST EIGHT MONTHS BEFORE THE
1964 GENERAL ELECTIONS.  GIVEN THE IMPORTANCE AND IMMEDIACY OF THE
PROBLEM, AND THE DELAY INHERENT IN REFERRING QUESTIONS OF STATE LAW TO
STATE TRIBUNALS, (FN13) IT IS EVIDENT THAT THE DISTRICT COURT DID NOT
ABUSE ITS DISCRETION IN REFUSING TO ABSTAIN.  GRIFFIN V. COUNTY SCHOOL
BOARD OF PRINCE EDWARD COUNTY, 377 U.S. 218, 229; BAGGETT V. BULLITT,
377 U.S. 360, 375-379.  (FN14)

                                   II. 

REACHING THE MERITS, IT IS IMPORTANT TO EMPHASIZE THAT THE QUESTION
PRESENTED IS NOT WHETHER IT WOULD BE WITHIN A STATE'S POWER TO ABOLISH
ENTIRELY THE POLL TAX AND REQUIRE ALL VOTERS - STATE AND FEDERAL - TO
FILE ANNUALLY A CERTIFICATE OF RESIDENCE.  RATHER, THE ISSUE HERE IS
WHETHER THE STATE OF VIRGINIA MAY CONSTITUTIONALLY CONFRONT THE FEDERAL
VOTER WITH A REQUIREMENT THAT HE EITHER PAY THE CUSTOMARY POLL TAXES AS
REQUIRED FOR STATE ELECTIONS OR FILE A CERTIFICATE OF RESIDENCE.  WE
CONCLUDE THAT THIS REQUIREMENT CONSTITUTES AN ABRIDGMENT OF THE RIGHT
TO VOTE IN FEDERAL ELECTIONS IN CONTRAVENTION OF THE TWENTY-FOURTH
AMENDMENT. 

PRIOR TO THE PROPOSAL OF THE TWENTY-FOURTH AMENDMENT IN 1962, FEDERAL
LEGISLATION TO ELIMINATE POLL TAXES, EITHER BY CONSTITUTIONAL AMENDMENT
OR STATUTE, HAD BEEN INTRODUCED IN EVERY CONGRESS SINCE 1939.  THE
HOUSE OF REPRESENTATIVES PASSED ANTI-POLL TAX BILLS ON FIVE OCCASIONS
AND THE SENATE TWICE PROPOSED CONSTITUTIONAL AMENDMENTS.  (FN15)  EVEN
THOUGH IN 1962 ONLY FIVE STATES RETAINED THE POLL TAX AS A VOTING
REQUIREMENT, CONGRESS REFLECTED WIDESPREAD NATIONAL CONCERN WITH THE
CHARACTERISTICS OF THE TAX.  DISENCHANTMENT WITH THE POLL TAX WAS MANY
FACETED.  (FN16)  ONE OF THE BASIC OBJECTIONS TO THE POLL TAX WAS THAT
IT EXACTED A PRICE FOR THE PRIVILEGE OF EXERCISING THE FRANCHISE. 
CONGRESSIONAL HEARINGS AND DEBATES INDICATE A GENERAL REPUGNANCE TO THE
DISENFRANCHISEMENT OF THE POOR OCCASIONED BY FAILURE TO PAY THE TAX. 
(FN17)    "WHILE IT IS TRUE THAT THE AMOUNT OF POLL TAX NOW REQUIRED TO
BE PAID IN THE SEVERAL STATES IS SMALL AND IMPOSES ONLY A SLIGHT
ECONOMICAL OBSTACLE FOR ANY CITIZEN WHO DESIRES TO QUALIFY IN ORDER TO
VOTE, NEVERTHELESS, IT IS SIGNIFICANT THAT THE VOTING IN POLL TAX
STATES IS RELATIVELY LOW AS COMPARED TO THE OVERALL POPULATION WHICH
WOULD BE ELIGIBLE 

...  .  THE HISTORICAL ANALYSIS  ...  INDICATES THAT WHERE THE POLL
TAX HAS BEEN ABANDONED  ... VOTER PARTICIPATION INCREASED."  H.R. REP.
NO. 1821, 87TH CONG., 2D SESS., P. 3.    ANOTHER OBJECTION TO THE POLL
TAX RAISED IN THE CONGRESSIONAL HEARINGS WAS THAT THE TAX USUALLY HAD
TO BE PAID LONG BEFORE THE ELECTION - AT A TIME WHEN POLITICAL
CAMPAIGNS WERE STILL QUIESCENT - WHICH TENDED TO ELIMINATE FROM THE
FRANCHISE A SUBSTANTIAL NUMBER OF VOTERS WHO DID NOT PLAN SO FAR
AHEAD.  (FN18)  THE POLL TAX WAS ALSO ATTACKED AS A VEHICLE FOR FRAUD
WHICH COULD BE MANIPULATED BY POLITICAL MACHINES BY FINANCING BLOCK
PAYMENTS OF THE TAX.  (FN19)  IN ADDITION, AND OF PRIMARY CONCERN TO
MANY, THE POLL TAX WAS VIEWED AS A REQUIREMENT ADOPTED WITH AN EYE TO
THE DISENFRANCHISEMENT OF NEGROES AND APPLIED IN A DISCRIMINATORY
MANNER.  (FN20)  IT IS AGAINST THIS BACKGROUND THAT CONGRESS PROPOSED,
AND THREE-FOURTHS OF THE STATES RATIFIED, THE TWENTY-FOURTH AMENDMENT
ABOLISHING THE POLL TAX AS A REQUIREMENT FOR VOTING IN FEDERAL
ELECTIONS. 

UPON ADOPTION OF THE AMENDMENT, OF COURSE, NO STATE COULD CONDITION
THE FEDERAL FRANCHISE UPON PAYMENT OF A POLL TAX.  THE STATE OF
VIRGINIA ACCORDINGLY REMOVED THE POLL TAX AS AN ABSOLUTE PREREQUISITE
TO QUALIFICATION FOR VOTING IN FEDERAL ELECTIONS, BUT IN ITS STEAD
SUBSTITUTED A PROVISION WHEREBY THE FEDERAL VOTER COULD QUALIFY EITHER
BY PAYING THE CUSTOMARY POLL TAX OR BY FILING A CERTIFICATE OF
RESIDENCE SIX MONTHS BEFORE THE ELECTION. 

IT HAS LONG BEEN ESTABLISHED THAT A STATE MAY NOT IMPOSE A PENALTY
UPON THOSE WHO EXERCISE A RIGHT GUARANTEED BY THE CONSTITUTION.  FROST
& FROST TRUCKING CO. V. RAILROAD COMM'N OF CALIFORNIA, 271 U.S. 583. 
"CONSTITUTIONAL RIGHTS WOULD BE OF LITTLE VALUE IF THEY COULD BE  ...
INDIRECTLY DENIED,"  SMITH V. ALLWRIGHT, 321 U.S. 649, 664, OR
"MANIPULATED OUT OF EXISTENCE."  GOMILLION V. LIGHTFOOT, 364 U.S. 339,
345.  SIGNIFICANTLY, THE TWENTY-FOURTH AMENDMENT DOES NOT MERELY INSURE
THAT THE FRANCHISE SHALL NOT BE "DENIED" BY REASON OF FAILURE TO PAY
THE POLL TAX; IT EXPRESSLY GUARANTEES THAT THE RIGHT TO VOTE SHALL NOT
BE "DENIED OR ABRIDGED" FOR THAT REASON.  THUS, LIKE THE FIFTEENTH
AMENDMENT, THE TWENTY-FOURTH "NULLIFIES SOPHISTICATED AS WELL AS SIMPLE
MINDED MODES" OF IMPAIRING THE RIGHT GUARANTEED.  LANE V. WILSON, 307
U.S. 268, 275.  "IT HITS ONEROUS PROCEDURAL REQUIREMENTS WHICH
EFFECTIVELY HANDICAP EXERCISE OF THE FRANCHISE" BY THOSE CLAIMING THE
CONSTITUTIONAL IMMUNITY.  IBID.; CF. GRAY V. JOHNSON, 234 F. SUPP. 743
(D.C.S.D. MISS.). 

THUS, IN ORDER TO DEMONSTRATE THE INVALIDITY OF SEC. 24-17.2 OF THE
VIRGINIA CODE, IT NEED ONLY BE SHOWN THAT IT IMPOSES A MATERIAL
REQUIREMENT SOLELY UPON THOSE WHO REFUSE TO SURRENDER THEIR
CONSTITUTIONAL RIGHT TO VOTE IN FEDERAL ELECTIONS WITHOUT PAYING A POLL
TAX.  SECTION 24-17.2 UNQUESTIONABLY ERECTS A REAL OBSTACLE TO VOTING
IN FEDERAL ELECTIONS FOR THOSE WHO ASSERT THEIR CONSTITUTIONAL
EXEMPTION FROM THE POLL TAX.  AS PREVIOUSLY INDICATED, THE REQUIREMENT
FOR THOSE WHO WISH TO PARTICIPATE IN FEDERAL ELECTIONS WITHOUT PAYING
THE POLL TAX IS THAT THEY FILE IN EACH ELECTION YEAR, WITHIN A STATED
INTERVAL ENDING SIX MONTHS BEFORE THE ELECTION, A NOTARIZED OR
WITNESSED CERTIFICATE ATTESTING THAT THEY HAVE BEEN CONTINUOUS
RESIDENTS OF THE STATE SINCE THE DATE OF REGISTRATION (WHICH MIGHT HAVE
BEEN MANY YEARS BEFORE UNDER VIRGINIA'S SYSTEM OF PERMANENT
REGISTRATION) AND THAT THEY DO NOT PRESENTLY INTEND TO LEAVE THE CITY
OR COUNTY IN WHICH THEY RESIDE PRIOR TO THE FORTHCOMING ELECTION. 
UNLIKE THE POLL TAX BILL WHICH IS SENT TO THE VOTER'S RESIDENCE, IT IS
NOT ENTIRELY CLEAR HOW ONE OBTAINS THE NECESSARY CERTIFICATE.  THE
STATUTES MERELY PROVIDE FOR THE DISTRIBUTION OF THE FORMS TO CITY AND
COUNTY COURT CLERKS, AND FOR FURTHER DISTRIBUTION TO LOCAL REGISTRARS
AND ELECTION OFFICIALS.  VA. CODE ANN. SEC. 24-28.1 (1964 SUPP.). 
CONSTRUING THE STATUTES IN THE MANNER LEAST BURDENSOME TO THE VOTER, IT
WOULD SEEM THAT THE VOTER COULD EITHER OBTAIN THE CERTIFICATE OF
RESIDENCE FROM LOCAL ELECTION OFFICIALS OR PREPARE PERSONALLY "A
CERTIFICATE IN FORM SUBSTANTIALLY" AS SET FORTH IN THE STATUTE.  THE
CERTIFICATE MUST THEN BE FILED "IN PERSON, OR OTHERWISE" WITH THE CITY
OR COUNTY TREASURER.  THIS IS PLAINLY A CUMBERSOME PROCEDURE.  IN
EFFECT, IT AMOUNTS TO ANNUAL RE-REGISTRATION WHICH VIRGINIA OFFICIALS
HAVE SHARPLY CONTRASTED WITH THE "SIMPLE" POLL TAX SYSTEM.  (FN21)  FOR
MANY, IT WOULD PROBABLY SEEM FAR PREFERABLE TO MAIL IN THE POLL TAX
PAYMENT UPON RECEIPT OF THE BILL.  IN ADDITION, THE CERTIFICATE MUST BE
FILED SIX MONTHS BEFORE THE ELECTION, THUS PERPETUATING ONE OF THE
DISENFRANCHISING CHARACTERISTICS OF THE POLL TAX WHICH THE TWENTY
FOURTH AMENDMENT WAS DESIGNED TO ELIMINATE.  WE ARE THUS CONSTRAINED TO
HOLD THAT THE REQUIREMENT IMPOSED UPON THE VOTER WHO REFUSES TO PAY THE
POLL TAX CONSTITUTES AN ABRIDGMENT OF HIS RIGHT TO VOTE BY REASON OF
FAILURE TO PAY THE POLL TAX. 

THE REQUIREMENT IMPOSED UPON THOSE WHO REJECT THE POLL TAX METHOD OF
QUALIFYING WOULD NOT BE SAVED EVEN IF IT COULD BE SAID THAT IT IS NO
MORE ONEROUS, OR EVEN SOMEWHAT LESS ONEROUS, THAN THE POLL TAX.  FOR
FEDERAL ELECTIONS, THE POLL TAX IS ABOLISHED ABSOLUTELY AS A
PREREQUISITE TO VOTING, AND NO EQUIVALENT OR MILDER SUBSTITUTE MAY BE
IMPOSED.  ANY MATERIAL REQUIREMENT IMPOSED UPON THE FEDERAL VOTER
SOLELY BECAUSE OF HIS REFUSAL TO WAIVE THE CONSTITUTIONAL IMMUNITY
SUBVERTS THE EFFECTIVENESS OF THE TWENTY-FOURTH AMENDMENT AND MUST FALL
UNDER ITS BAN. 

NOR MAY THE STATUTORY SCHEME BE SAVED, AS THE STATE ASSERTS, ON THE
GROUND THAT THE CERTIFICATE IS A NECESSARY SUBSTITUTE METHOD OF PROVING
RESIDENCE, SERVING THE SAME FUNCTION AS THE POLL TAX.  AS THIS COURT
HAS HELD IN ANALOGOUS SITUATIONS, CONSTITUTIONAL DEPRIVATIONS MAY NOT
BE JUSTIFIED BY SOME REMOTE ADMINISTRATIVE BENEFIT TO THE STATE. 
CARRINGTON V. RASH, ANTE, PP. 89, 96; OYAMA V. CALIFORNIA, 332 U.S.
633, 646-647.  MOREOVER, IN THIS CASE THE STATE HAS NOT DEMONSTRATED
THAT THE ALTERNATIVE REQUIREMENT IS IN ANY SENSE NECESSARY TO THE
PROPER ADMINISTRATION OF ITS ELECTION LAWS.   THE FORTY-SIX STATES
WHICH DO NOT REQUIRE THE PAYMENT OF POLL TAXES HAVE APPARENTLY FOUND NO
GREAT ADMINISTRATIVE BURDEN IN INSURING THAT THE ELECTORATE IS LIMITED
TO BONA FIDE RESIDENTS.  THE AVAILABILITY OF NUMEROUS DEVICES TO
ENFORCE VALID RESIDENCE REQUIREMENTS - SUCH AS REGISTRATION, USE OF THE
CRIMINAL SANCTION, PURGING OF REGISTRATION LISTS, CHALLENGES AND OATHS,
PUBLIC SCRUTINY BY CANDIDATES AND OTHER INTERESTED PARTIES -
DEMONSTRATES QUITE CLEARLY THE LACK OF NECESSITY FOR IMPOSING A
REQUIREMENT WHEREBY PERSONS DESIRING TO VOTE IN FEDERAL ELECTIONS MUST
EITHER PAY A POLL TAX OR FILE A CERTIFICATE OF RESIDENCE SIX MONTHS
PRIOR TO THE ELECTION. 

THE VIRGINIA POLL TAX WAS BORN OF A DESIRE TO DISENFRANCHISE THE
NEGRO.  (FN22)  AT THE VIRGINIA CONSTITUTIONAL CONVENTION OF 1902, THE
SPONSOR OF THE SUFFRAGE PLAN OF WHICH THE POLL TAX WAS AN INTEGRAL PART
FRANKLY EXPRESSED THE PURPOSE OF THE SUFFRAGE PROPOSAL: 

"DISCRIMINATION.  WHY, THAT IS PRECISELY WHAT WE PROPOSE; THAT,
EXACTLY, IS WHAT THIS CONVENTION WAS ELECTED FOR - TO DISCRIMINATE TO
THE VERY EXTREMITY OF PERMISSIBLE ACTION UNDER THE LIMITATIONS OF THE
FEDERAL CONSTITUTION, WITH A VIEW TO THE ELIMINATION OF EVERY NEGRO
VOTER WHO CAN BE GOTTEN RID OF, LEGALLY, WITHOUT MATERIALLY IMPAIRING
THE NUMERICAL STRENGTH OF THE WHITE ELECTORATE."  (FN23) 

THE POLL TAX WAS LATER CHARACTERIZED BY THE VIRGINIA SUPREME COURT OF
APPEALS AS A DEVICE LIMITING "THE RIGHT OF SUFFRAGE TO THOSE WHO TOOK
SUFFICIENT INTEREST IN THE AFFAIRS OF THE STATE TO QUALIFY THEMSELVES
TO VOTE."  CAMPBELL V. GOODE, 172 VA. 463, 466, 2 S.E.2D 456, 457. 
WHETHER, AS THE STATE CONTENDS, THE PAYMENT OF THE POLL TAX IS ALSO A
RELIABLE INDICIUM OF CONTINUING RESIDENCE NEED NOT BE DECIDED, FOR EVEN
IF THE POLL TAX HAS SERVED SUCH AN EVIDENTIARY FUNCTION, THE
CONFRONTATION OF THE FEDERAL VOTER WITH A REQUIREMENT THAT HE EITHER
CONTINUE TO PAY THE CUSTOMARY POLL TAX OR FILE A CERTIFICATE OF
RESIDENCE COULD NOT BE SUSTAINED.  FOR FEDERAL ELECTIONS THE POLL TAX,
REGARDLESS OF THE SERVICES IT PERFORMS, WAS ABOLISHED BY THE TWENTY
FOURTH AMENDMENT.  THAT AMENDMENT WAS ALSO DESIGNED TO ABSOLVE ALL
REQUIREMENTS IMPAIRING THE RIGHT TO VOTE IN FEDERAL ELECTIONS BY REASON
OF FAILURE TO PAY THE POLL TAX.  SECTION 24-17.2 OF THE VIRGINIA CODE
FALLS WITHIN THIS PROSCRIPTION. 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

FN1  VA. CODE ANN. SEC. 24-17.2 (1964 SUPP.) PROVIDES: 

"PROOF OF RESIDENCE REQUIRED; HOW FURNISHED. 

"(A)  NO PERSON SHALL BE DEEMED TO HAVE THE QUALIFICATIONS OF
RESIDENCE REQUIRED BY SEC. 18 OF THE CONSTITUTION OF VIRGINIA AND SECS.
24-17 AND 24-17.1 IN ANY CALENDAR YEAR SUBSEQUENT TO THAT IN WHICH HE
REGISTERED UNDER EITHER SEC. 24-67 OR SEC. 24-67.1, AND SHALL NOT BE
ENTITLED TO VOTE IN ANY ELECTION HELD IN THIS STATE DURING ANY SUCH
SUBSEQUENT CALENDAR YEAR, UNLESS HE HAS OFFERED PROOF OF CONTINUING
RESIDENCE BY FILING IN PERSON, OR OTHERWISE, A CERTIFICATE OF RESIDENCE
AT THE TIME AND IN THE MANNER PRESCRIBED IN PARAGRAPH (B) OF THIS
AT LEAST SIX MONTHS PRIOR TO ANY SUCH ELECTION IN WHICH HE OFFERS TO
VOTE, ALL STATE POLL TAXES ASSESSED OR ASSESSABLE AGAINST HIM FOR THE
THREE YEARS NEXT PRECEDING THAT IN WHICH HE OFFERS TO VOTE.  PROOF OF
CONTINUING RESIDENCE MAY ONLY BE ESTABLISHED BY EITHER OF SUCH TWO
METHODS. 

"(B)  ANY PERSON WHO SHALL OFFER PROOF OF CONTINUING RESIDENCE BY
FILING A CERTIFICATE OF RESIDENCE AS PROVIDED IN PARAGRAPH (A) OF THIS
EARLIER THAN THE FIRST OF OCTOBER OF THE YEAR NEXT PRECEDING THAT IN
WHICH HE OFFERS TO VOTE AND NOT LATER THAN SIX MONTHS PRIOR TO THE
ELECTION, A CERTIFICATE IN FORM SUBSTANTIALLY AS FOLLOWS: 

"I DO CERTIFY THAT I AM NOW AND HAVE BEEN A RESIDENT OF VIRGINIA
SINCE THE DATE OF MY REGISTRATION TO VOTE UNDER THE LAWS OF VIRGINIA,
THAT I AM NOW A RESIDENT OF  ...........  (CITY OR COUNTY), RESIDING AT
....................  (STREET AND NUMBER, OR PLACE OF RESIDENCE
THEREIN), AND THAT IT IS MY PRESENT INTENTION NOT TO REMOVE FROM THE
CITY OR COUNTY STATED HEREIN PRIOR TO THE NEXT GENERAL ELECTION. 

"  ...................................... 

"WITNESSED:  ..............................

                                       "OR 

"SUBSCRIBED AND SWORN TO BEFORE ME THIS  ........................ 

DAY OF  ......................, 19  ....... 

"  .......................................... 

"NOTARY PUBLIC." 

FN2  MEMBERS OF THE ARMED SERVICES ARE EXEMPT FROM THE POLL TAX
REQUIREMENT.  VA. CODE ANN. SEC. 24-23.1 (1950). 

FN3  VA. CODE ANN. SECS. 24-52 - 24-119 (1950).  REGISTRATION,
EFFECTED BY FILING AN APPLICATION SHOWING THAT THE STATUTORY
REQUIREMENTS HAD BEEN MET (SEC. 24-68), WAS PERMANENT.  THEREAFTER, IN
ORDER TO QUALIFY FOR SUBSEQUENT ELECTIONS, THE VOTER MERELY HAD TO PAY
THE ASSESSED POLL TAXES (UNLESS, OF COURSE, HIS NAME HAD BEEN REMOVED
FROM THE REGISTRATION LISTS FOR, INTER ALIA, FAILURE TO MEET THE
STATUTORY AND CONSTITUTIONAL REQUIREMENTS (SECS. 24-94 - 24-96)). 

FN4  VA. ACTS, 1963 EXTRA SESS., CC. 1 AND 2.  CHAPTER 2 IS NOW
CODIFIED IN TITLE 24 OF THE VIRGINIA CODE.  CHAPTER 1 - APPLICABLE TO
1964 ELECTIONS ONLY - HAS NOT BEEN CODIFIED. 

FN5  VA. ACTS, 1963 EXTRA SESS., C. 2, SEC. 1(A). 

FN6  THE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ON WHICH
RELIEF COULD BE GRANTED AND FOR FAILURE TO SET FORTH A JUSTICIABLE
CONTROVERSY WAS DIRECTED SOLELY AT THE COMPLAINT OF APPELLEE HENDERSON,
WHO WAS REGISTERED AND HAD ALREADY PAID HIS POLL TAX.  THE DISTRICT
COURT WAS PATENTLY CORRECT IN REJECTING THE STATE'S ARGUMENT THAT
APPELLEE HENDERSON LACKED STANDING TO MAINTAIN THIS ACTION.  GRAY V.
SANDERS, 372 U.S. 368, 374-376; BAKER V. CARR, 369 U.S. 186, 204-208. 

FN7  SEE HOSTETTER V. IDLEWILD BON VOYAGE LIQUOR CORP., 377 U.S. 324,
328-329; BAGGETT V. BULLITT, 377 U.S. 360, 375; ENGLAND V. LOUISIANA
STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411, 415-416. 

FN8  TO THE SAME EFFECT, SEE ENGLAND V. LOUISIANA STATE BOARD OF
MEDICAL EXAMINERS, 375 U.S. 411, 415-416; UNITED GAS PIPE LINE CO. V.
IDEAL CEMENT CO., 369 U.S. 134, 135-136; SPECTOR MOTOR SERVICE, INC. V.
MCLAUGHLIN, 323 U.S. 101, 105. 

FN9  THE ONLY AMBIGUITY DISCUSSED IN THE BRIEFS OF THE PARTIES OR
DEVELOPED DURING ARGUMENT CONCERNED THE QUESTION WHETHER SEC. 24-17.2
REQUIRED THE VOTER TO SECURE A PREPARED CERTIFICATE OF RESIDENCE FROM
LOCAL ELECTION OFFICIALS OR WHETHER HE COULD PERSONALLY PREPARE ONE "IN
FORM SUBSTANTIALLY" AS SET FORTH IN THE STATUTE.  WE DO NOT REGARD THIS
AS A MATERIAL AMBIGUITY HAVING ANY EFFECT ON THE CONSTITUTIONAL
QUESTION AND ACCEPT, FOR THE PURPOSES OF THIS DECISION, THE STATE'S
ASSERTION THAT THE VOTER MAY SECURE SUCH A FORM FROM LOCAL ELECTION
OFFICIALS OR PREPARE ONE ACCORDING TO THE STATUTORY DESCRIPTION. 
INFRA, P. 541. 

FN10  THE STATE ALSO ARGUES THAT SINCE THE STATES ARE EMPOWERED BY
ART. I, SEC. 2, ART. II, SEC. 1, AND THE SEVENTEENTH AMENDMENT TO
CREATE VOTER QUALIFICATIONS FOR FEDERAL ELECTIONS, THE QUESTION WHETHER
A STATE STATUTORY ENACTMENT CREATES A VOTER QUALIFICATION MUST
INITIALLY BE REFERRED TO THE STATE TRIBUNALS.  TRUE, "THE STATES HAVE
LONG BEEN HELD TO HAVE BROAD POWERS TO DETERMINE THE CONDITIONS UNDER
WHICH THE RIGHT OF SUFFRAGE MAY BE EXERCISED."  LASSITER V. NORTHAMPTON
COUNTY BOARD OF ELECTIONS, 360 U.S. 45, 50; POPE V. WILLIAMS, 193 U.S.
621, 633; MASON V. MISSOURI, 179 U.S. 328, 335.  THE RIGHT TO VOTE,
HOWEVER, IS CONSTITUTIONALLY PROTECTED, EX PARTE YARBROUGH, 110 U.S.
651, 663-665; SMITH V. ALLWRIGHT, 321 U.S. 649, 664; AND THE CONDITIONS
IMPOSED BY THE STATES UPON THAT RIGHT MUST NOT CONTRAVENE ANY
CONSTITUTIONAL PROVISION OR CONGRESSIONAL RESTRICTION ENACTED PURSUANT
TO CONSTITUTIONAL POWER.  CARRINGTON V. RASH, ANTE, P. 89, 91; LASSITER
V. NORTHAMPTON COUNTY BOARD OF ELECTIONS, 360 U.S. 45, 50-51; UNITED
STATES V. CLASSIC, 313 U.S. 299, 315.  THE QUESTION PRESENTED IN THIS
CASE - WHETHER THE VIRGINIA STATUTE IMPOSES A CONDITION UPON THE
FRANCHISE WHICH VIOLATES THE UNITED STATES CONSTITUTION - IS THUS QUITE
CLEARLY A FEDERAL QUESTION.  THE PRECISE NATURE OF THE CONDITION
IMPOSED IS, OF COURSE, A QUESTION OF VIRGINIA LAW.  HOWEVER, THE
STATUTORY REQUIREMENT IS CLEAR AND UNAMBIGUOUS, AND THE SOLE QUESTION
REMAINING IS WHETHER THE STATE REQUIREMENT IS VALID UNDER THE FEDERAL
CONSTITUTION. 

FN11  VA. CONST., ART. II, SEC. 18, SETS FORTH AS A QUALIFICATION FOR
VOTING:  RESIDENCY IN THE STATE FOR ONE YEAR, IN THE CITY OR COUNTY SIX
MONTHS, AND IN THE VOTING PRECINCT THIRTY DAYS. 

FN12  MOREOVER, THE STATE CITES NO VIRGINIA DECISIONS IN SUPPORT OF
ITS CONTENTION THAT THE REQUIREMENT MIGHT CONSTITUTE AN IMPERMISSIBLE
"QUALIFICATION" ACCORDING TO VIRGINIA LAW. 

FN13  SEE BAGGETT V. BULLITT, 377 U.S. 360, 378-379; ENGLAND V.
LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 375 U.S. 411, 425-426
(DOUGLAS, J., CONCURRING). 

FN14  THE STATE ALSO ASSERTS THAT THE DISTRICT COURT ERRED IN DENYING
ITS MOTION TO DISMISS FOR FAILURE TO JOIN INDISPENSABLE PARTIES.  THE
ARGUMENT IS THAT THE RELIEF REQUESTED IN THE COMPLAINTS WAS AN
INJUNCTION AGAINST THE ENFORCEMENT OF ALL PROVISIONS OF THE 1963
LEGISLATION, WHICH INCLUDED A SYSTEM FOR SEPARATE REGISTRATION OF STATE
AND FEDERAL VOTERS.  VA. CODE ANN. SECS. 24-67, 24-67.1 (1964 SUPP.). 
SINCE REGISTRATION IN VIRGINIA IS ENTRUSTED TO LOCAL REGISTRARS, THE
STATE ARGUES, THEIR JOINDER WAS ESSENTIAL IN ORDER TO EFFECT THE RELIEF
REQUESTED.  WILLIAMS V. FANNING, 332 U.S. 490, 493-494. 

WHILE THE STATE IS CORRECT IN ASSERTING THAT THE COMPLAINTS WERE
PHRASED BROADLY ENOUGH TO ENCOMPASS ALL PORTIONS OF THE 1963 ACTS, THE
DISTRICT COURT WAS CERTAINLY WARRANTED IN CONCLUDING THAT THE BASIC AIM
OF THE COMPLAINTS WAS TO SECURE RELIEF FROM THE CERTIFICATE OF
RESIDENCE REQUIREMENT.  THE NAMED DEFENDANTS WERE CLEARLY CAPABLE OF
EFFECTING THIS RELIEF AND HENCE THE DISTRICT COURT DID NOT ERR IN
DENYING THE MOTION TO DISMISS.  CEBALLOS V. SHAUGHNESSY, 352 U.S. 599,
603-604.  MOREOVER, EVEN ACCEPTING THE STATE'S BROAD CONSTRUCTION OF
THE COMPLAINTS, IT IS APPARENT THAT, GIVEN THE STATE BOARD OF
ELECTIONS' POWER TO SUPERVISE AND TO INSURE "LEGALITY" IN THE ELECTION
PROCESS (VA. CODE ANN. SECS. 24-25, 24-26, 24-27 (1950)), THE LOCAL
REGISTRARS WERE NOT INDISPENSABLE PARTIES.  SEE LOUISIANA V. UNITED
STATES, ANTE, PP. 145, 151, N. 10. 

FN15  H.R. REP. NO. 1821, 87TH CONG., 2D SESS., P. 2. 

FN16  SEE GENERALLY OGDEN, THE POLL TAX IN THE SOUTH (1958). 

FN17  SEE, E.G., HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE
COMMITTEE ON THE JUDICIARY ON AMENDMENTS TO ABOLISH TAX AND PROPERTY
QUALIFICATIONS FOR ELECTORS IN FEDERAL ELECTIONS, 87TH CONG., 2D SESS.,
14-22, 48-58 (HEREINAFTER CITED AS HOUSE HEARINGS); HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY ON S.J. RES. 29,
87TH CONG., 2D SESS., 33 (HEREINAFTER CITED AS SENATE HEARINGS). 

FN18  SEE, E.G., HOUSE HEARINGS 14-15.  SEE GENERALLY OGDEN, SUPRA,
NOTE 16, AT 44-52. 

FN19  SEE OGDEN, SUPRA, NOTE 16, AT 59-110. 

FN20  SEE HOUSE HEARINGS 14-22, 26-27, 48-58; SENATE HEARINGS 33. 

FN21  SEE, E.G., THE TESTIMONY OF JUDGE WILLIAM OLD BEFORE THE HOUSE
JUDICIARY COMMITTEE, DEFENDING THE POLL TAX AS ENABLING VIRGINIA "TO
AVOID THE BURDENSOME NECESSITY FOR ANNUAL REGISTRATION."  HOUSE
HEARINGS 81.  SEE ALSO ID., AT 98-99 (ATTORNEY GENERAL BUTTON); 108
CONG. REC. 4532 (SENATOR BYRD); 108 CONG. REC. 4641 (SENATOR
ROBERTSON); R. 73, 76 (GOVERNOR HARRISON). 

FN22  SEE 2 VIRGINIA CONSTITUTIONAL CONVENTION (PROCEEDINGS AND
DEBATES, 1901-1902) 2937-3080. 

FN23  STATEMENT OF THE HONORABLE CARTER GLASS, ID., AT 3076-3077. 
THIS STATEMENT WAS CHARACTERISTIC OF THE ENTIRE DEBATE ON THE SUFFRAGE
ISSUE; THE ONLY REAL CONTROVERSY WAS WHETHER THE PROVISIONS EVENTUALLY
ADOPTED WERE SUFFICIENT TO ACCOMPLISH THE DISENFRANCHISEMENT OF THE
NEGRO.  SEE ID., AT 2937-3080. 

MR. JUSTICE HARLAN AGREES WITH THIS OPINION INSOFAR AS IT RESTS ON
THE PROPOSITION THAT THE TWENTY-FOURTH AMENDMENT FORBIDS THE USE OF A
STATE POLL TAX FOR ANY PURPOSE WHATEVER IN DETERMINING VOTER
QUALIFICATIONS IN ALL ELECTIONS FOR FEDERAL OFFICE.  HE ALSO AGREES
THAT THIS IS NOT A CASE FOR APPLICATION OF THE ABSTENTION DOCTRINE. 
..END :






















ARMSTRONG V. MANZO 380 U.S. 545 


NO. 149.  ARGUED MARCH 9, 1965.  - DECIDED APRIL 27, 1965.  - 371 S.W.2D
407, REVERSED AND REMANDED. 


PETITIONER AND HIS WIFE WERE DIVORCED BY A TEXAS COURT.  CUSTODY OF
THEIR ONLY CHILD WAS GRANTED TO THE RESPONDENT MOTHER AND PETITIONER
WAS ORDERED TO PAY A MONTHLY SUM FOR THE CHILD'S SUPPORT.  THE MOTHER
THEREAFTER MARRIED RESPONDENT MANZO, WHO TWO YEARS LATER SOUGHT TO
BECOME THE CHILD'S ADOPTIVE FATHER.  STATE LAW REQUIRES THE NATURAL
FATHER'S WRITTEN CONSENT TO ADOPTION, AN EXCEPTION EXISTING IF HE HAS
NOT SUBSTANTIALLY CONTRIBUTED TO THE CHILD'S SUPPORT FOR TWO YEARS
COMMENSURATE WITH HIS FINANCIAL ABILITY.  IN THAT CASE THE WRITTEN
CONSENT OF THE JUVENILE COURT JUDGE IN THE COUNTY OF THE CHILD'S
RESIDENCE MAY BE ACCEPTED.  THE MOTHER FILED AN AFFIDAVIT IN HER COUNTY
JUVENILE COURT ALLEGING PETITIONER'S FAILURE FOR MORE THAN TWO YEARS TO
CONTRIBUTE TO THE CHILD'S SUPPORT AND THE JUDGE CONSENTED TO THE
ADOPTION.  RESPONDENTS THE SAME DAY FILED AN ADOPTION PETITION ALLEGING
THAT THE NATURAL FATHER'S CONSENT WAS NOT NECESSARY BECAUSE HE HAD NOT
CONTRIBUTED TO THE CHILD'S SUPPORT COMMENSURATE WITH HIS ABILITY FOR A
PERIOD OF OVER TWO YEARS AND THAT THE JUVENILE COURT JUDGE HAD GIVEN
HIS WRITTEN CONSENT.  NO NOTICE OF THE AFFIDAVIT OR ADOPTION PETITION
WAS GIVEN TO PETITIONER, THOUGH HIS WHEREABOUTS WERE WELL KNOWN TO
RESPONDENTS.  AN ADOPTION DECREE WAS LATER ENTERED MAKING MANZO THE
CHILD'S ADOPTIVE FATHER, UPON BEING ADVISED OF WHICH PETITIONER FILED A
MOTION SEEKING TO HAVE THE COURT ANNUL ITS DECREE.  A HEARING WAS HELD
AT WHICH PETITIONER INTRODUCED EVIDENCE THAT HE HAD NOT FAILED TO
CONTRIBUTE TO HIS CHILD'S SUPPORT BUT THE COURT DENIED PETITIONER'S
MOTION.  THE APPELLATE COURT AFFIRMED NOTWITHSTANDING PETITIONER'S
CONTENTION OF DEPRIVATION OF DUE PROCESS OF LAW BECAUSE OF ENTRY OF THE
DECREE WITHOUT NOTICE, AND THE STATE SUPREME COURT REFUSED TO REVIEW. 
HELD: 

1.  FAILURE TO GIVE PETITIONER NOTICE OF THE PENDING ADOPTION
PROCEEDINGS DEPRIVED HIM OF HIS RIGHTS WITHOUT DUE PROCESS OF LAW.  P.
550. 

2. THE HEARING SUBSEQUENTLY GRANTED TO PETITIONER DID NOT REMOVE THE
CONSTITUTIONAL INFIRMITY SINCE PETITIONER WAS FORCED TO ASSUME BURDENS
OF PROOF WHICH, HAD HE BEEN ACCORDED NOTICE OF THE ADOPTION
PROCEEDINGS, WOULD HAVE RESTED UPON THE MOVING PARTIES.  PP. 550-552. 

ARMSTRONG V. MANZO ET UX. 

CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, EIGHTH SUPREME
JUDICIAL DISTRICT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, R. WRIGHT ARMSTRONG, JR., AND HIS WIFE WERE DIVORCED
BY A TEXAS COURT IN 1959.  CUSTODY OF THEIR ONLY CHILD, MOLLY PAGE
ARMSTRONG, WAS AWARDED TO MRS. ARMSTRONG, AND THE PETITIONER WAS
GRANTED "THE PRIVILEGE OF VISITING WITH SAID CHILD AT REASONABLE TIMES,
PLACES, AND INTERVALS."  THE DIVORCE DECREE ORDERED THE PETITIONER TO
PAY $50 A MONTH FOR HIS DAUGHTER'S SUPPORT.  IN 1960 MRS. ARMSTRONG
MARRIED THE RESPONDENT, SALVATORE E. MANZO.  TWO YEARS LATER THE MANZOS
FILED A PETITION FOR ADOPTION IN THE DISTRICT COURT OF EL PASO COUNTY,
TEXAS, SEEKING TO MAKE SALVATORE MANZO THE LEGAL FATHER OF MOLLY PAGE
ARMSTRONG.  (FN1) 

TEXAS LAW PROVIDES THAT AN ADOPTION SUCH AS THIS ONE SHALL NOT BE
PERMITTED WITHOUT THE WRITTEN CONSENT OF THE CHILD'S NATURAL FATHER,
EXCEPT IN CERTAIN SPECIFIED CIRCUMSTANCES.  ONE SUCH EXCEPTIONAL
CIRCUMSTANCE IS IF THE FATHER "SHALL NOT HAVE CONTRIBUTED SUBSTANTIALLY
TO THE SUPPORT OF SUCH CHILD DURING A PERIOD OF TWO (2) YEARS
COMMENSURATE WITH HIS FINANCIAL ABILITY."  IN THAT EVENT, THE WRITTEN
CONSENT OF THE JUDGE OF THE JUVENILE COURT OF THE COUNTY OF THE CHILD'S
RESIDENCE MAY BE ACCEPTED BY THE ADOPTION COURT IN LIEU OF THE FATHER'S
CONSENT.  (FN2) 

PRELIMINARY TO FILING THE ADOPTION PETITION, MRS. MANZO FILED AN
AFFIDAVIT IN THE JUVENILE COURT, ALLEGING IN CONCLUSORY TERMS THAT THE
PETITIONER HAD "FAILED TO CONTRIBUTE TO THE SUPPORT OF" MOLLY PAGE
ARMSTRONG "FOR A PERIOD IN EXCESS OF TWO YEARS PRECEDING THIS DATE." 
NO NOTICE WAS GIVEN TO THE PETITIONER OF THE FILING OF THIS AFFIDAVIT,
ALTHOUGH THE MANZOS WELL KNEW HIS PRECISE WHEREABOUTS IN FORT WORTH,
TEXAS.  ON THE BASIS OF THE AFFIDAVIT, AND WITHOUT, SO FAR AS THE
RECORD SHOWS, A HEARING OF ANY KIND, THE JUVENILE COURT JUDGE PROMPTLY
ISSUED HIS CONSENT TO THE ADOPTION.  IN THE ADOPTION PETITION, FILED
LATER THE SAME DAY, THE MANZOS ALLEGED THAT "CONSENT OF THE NATURAL
FATHER, R.W. ARMSTRONG, JR., TO THE ADOPTION HEREIN SOUGHT IS NOT
NECESSARY UPON GROUNDS THAT THE SAID FATHER HAS NOT CONTRIBUTED TO THE
SUPPORT OF SAID MINOR CHILD COMMENSURATE WITH HIS ABILITY TO DO SO FOR
A PERIOD IN EXCESS OF TWO (2) YEARS, AND THE JUDGE OF A JUVENILE COURT
OF EL PASO COUNTY, TEXAS ...  HAS CONSENTED IN WRITING TO SAID
ADOPTION."  NO NOTICE OF ANY KIND WAS GIVEN TO THE PETITIONER OF THE
FILING OR PENDENCY OF THIS ADOPTION PETITION. 

AN INVESTIGATOR APPOINTED BY THE COURT MADE A DETAILED WRITTEN REPORT
RECOMMENDING THE ADOPTION, AND A FEW WEEKS LATER THE ADOPTION DECREE
WAS ENTERED.  THE DECREE PROVIDED IN ACCORD WITH TEXAS LAW THAT "ALL
LEGAL RELATIONSHIP AND ALL RIGHTS AND DUTIES BETWEEN SUCH CHILD AND THE
NATURAL FATHER SHALL CEASE AND DETERMINE, AND SUCH CHILD IS HEREAFTER
DEEMED AND HELD TO BE FOR EVERY PURPOSE THE CHILD OF ITS PARENT BY
ADOPTION, AS FULLY AS THOUGH NATURALLY BORN TO HIM IN LAWFUL WEDLOCK,"
(FN3) AND FURTHER PROVIDED THAT "THE SAID MOLLY PAGE ARMSTRONG SHALL BE
KNOWN BY THE CHRISTIAN AND SURNAME AS MOLLY PAGE MANZO, FROM THIS DAY
FORWARD." 

DURING THIS ENTIRE PERIOD THE PETITIONER WAS NOT GIVEN AND DID NOT
HAVE, THE SLIGHTEST INKLING OF THE PENDENCY OF THESE ADOPTION
PROCEEDINGS.  ON THE DAY THE DECREE WAS ENTERED, HOWEVER, SALVATORE
MANZO WROTE TO THE PETITIONER'S FATHER, ADVISING HIM THAT "I HAVE THIS
DATE COMPLETED COURT ACTION TO ADOPT MOLLY PAGE AS MY DAUGHTER AND TO
CHANGE HER NAME TO MOLLY PAGE MANZO."  THE PETITIONER'S FATHER
IMMEDIATELY RELAYED THIS NEWS TO THE PETITIONER, WHO PROMPTLY FILED A
MOTION IN THE DISTRICT COURT OF EL PASO COUNTY, ASKING THAT THE
ADOPTION DECREE BE "SET ASIDE AND ANNULLED AND A NEW TRIAL GRANTED,"
UPON THE GROUND THAT HE HAD BEEN GIVEN NO NOTICE OF THE ADOPTION
PROCEEDINGS.  (FN4) 

THE COURT DID NOT VACATE THE ADOPTION DECREE, BUT SET A DATE FOR
HEARING ON THE MOTION.  AT THAT HEARING THE PETITIONER INTRODUCED
EVIDENCE, THROUGH WITNESSES AND BY DEPOSITIONS, IN AN EFFORT TO SHOW
THAT HE HAD NOT FAILED TO CONTRIBUTE TO HIS DAUGHTER'S SUPPORT
"COMMENSURATE WITH HIS FINANCIAL ABILITY."  (FN5)  AT THE CONCLUSION OF
THE HEARING THE COURT ENTERED AN ORDER DENYING THE PETITIONER'S MOTION
AND PROVIDING THAT THE "ADOPTION DECREE ENTERED HEREIN IS IN ALL THINGS
CONFIRMED." 

THE PETITIONER APPEALED TO THE APPROPRIATE TEXAS COURT OF CIVIL
APPEALS, UPON THE GROUND, AMONG OTHERS, THAT THE TRIAL COURT HAD ERRED
IN NOT SETTING ASIDE THE ADOPTION DECREE, BECAUSE THE ENTRY OF THE
DECREE WITHOUT NOTICE TO THE PETITIONER HAD DEPRIVED HIM "OF HIS CHILD
WITHOUT DUE PROCESS OF LAW."  THE APPELLATE COURT AFFIRMED THE TRIAL
COURT'S JUDGMENT, (FN6) AND THE SUPREME COURT OF TEXAS REFUSED AN
APPLICATION FOR WRIT OF ERROR. 

WE GRANTED CERTIORARI.  379 U.S. 816.  THE QUESTIONS BEFORE US ARE
WHETHER FAILURE TO NOTIFY THE PETITIONER OF THE PENDENCY OF THE
ADOPTION PROCEEDINGS DEPRIVED HIM OF DUE PROCESS OF LAW SO AS TO RENDER
THE ADOPTION DECREE CONSTITUTIONALLY INVALID, AND, IF SO, WHETHER THE
SUBSEQUENT HEARING ON THE PETITIONER'S MOTION TO SET ASIDE THE DECREE
SERVED TO CURE ITS CONSTITUTIONAL INVALIDITY. 

IN DISPOSING OF THE FIRST ISSUE, THERE IS NO OCCASION TO LINGER
LONG.  IT IS CLEAR THAT FAILURE TO GIVE THE PETITIONER NOTICE OF THE
PENDING ADOPTION PROCEEDINGS VIOLATED THE MOST RUDIMENTARY DEMANDS OF
DUE PROCESS OF LAW.  "MANY CONTROVERSIES HAVE RAGED ABOUT THE CRYPTIC
AND ABSTRACT WORDS OF THE DUE PROCESS CLAUSE BUT THERE CAN BE NO DOUBT
THAT AT A MINIMUM THEY REQUIRE THAT DEPRIVATION OF LIFE, LIBERTY OR
PROPERTY BY ADJUDICATION BE PRECEDED BY NOTICE AND OPPORTUNITY FOR
HEARING APPROPRIATE TO THE NATURE OF THE CASE."  MULLANE V. CENTRAL
HANOVER TR. CO., 339 U.S. 306, AT 313.  "AN ELEMENTARY AND FUNDAMENTAL
REQUIREMENT OF DUE PROCESS IN ANY PROCEEDING WHICH IS TO BE ACCORDED
FINALITY IS NOTICE REASONABLY CALCULATED, UNDER ALL THE CIRCUMSTANCES,
TO APPRISE INTERESTED PARTIES OF THE PENDENCY OF THE ACTION AND AFFORD
THEM AN OPPORTUNITY TO PRESENT THEIR OBJECTIONS.  MILLIKEN V. MEYER,
311 U.S. 457; GRANNIS V. ORDEAN, 234 U.S. 385; PRIEST V. LAS VEGAS, 232
U.S. 604; ROLLER V. HOLLY, 176 U.S. 398  ...  ."  ID., AT 314. 
QUESTIONS FREQUENTLY ARISE AS TO THE ADEQUACY OF A PARTICULAR FORM OF
NOTICE IN A PARTICULAR CASE.  SEE, E.G., SCHROEDER V. CITY OF NEW YORK,
371 U.S. 208; NEW YORK V. NEW YORK, N.H.&H.R. CO., 344 U.S. 293; WALKER
V. HUTCHINSON CITY, 352 U.S. 112; MULLANE V. CENTRAL HANOVER TR. CO.,
SUPRA.  BUT AS TO THE BASIC REQUIREMENT OF NOTICE ITSELF THERE CAN BE
NO DOUBT, WHERE, AS HERE, THE RESULT OF THE JUDICIAL PROCEEDING WAS
PERMANENTLY TO DEPRIVE A LEGITIMATE PARENT OF ALL THAT PARENTHOOD
IMPLIES.  CF. MAY V. ANDERSON, 345 U.S. 528, 533. 

THE TEXAS COURT OF CIVIL APPEALS IMPLICITLY RECOGNIZED THIS
CONSTITUTIONAL RULE, BUT HELD, IN ACCORD WITH ITS UNDERSTANDING OF THE
TEXAS PRECEDENTS, (FN7) THAT WHATEVER CONSTITUTIONAL INFIRMITY RESULTED
FROM THE FAILURE TO GIVE THE PETITIONER NOTICE HAD BEEN CURED BY THE
HEARING SUBSEQUENTLY AFFORDED TO HIM UPON HIS MOTION TO SET ASIDE THE
DECREE.  371 S.W.2D, AT 412.  WE CANNOT AGREE. 

HAD THE PETITIONER BEEN GIVEN THE TIMELY NOTICE WHICH THE
CONSTITUTION REQUIRES, THE MANZOS, AS THE MOVING PARTIES, WOULD HAVE
HAD THE BURDEN OF PROVING THEIR CASE AS AGAINST WHATEVER DEFENSES THE
PETITIONER MIGHT HAVE INTERPOSED.  SEE JONES V. WILLSON, 285 S.W.2D
877; EX PARTE PAYNE, 301 S.W.2D 194.  IT WOULD HAVE BEEN INCUMBENT UPON
THEM TO SHOW NOT ONLY THAT SALVATORE MANZO MET ALL THE REQUISITES OF AN
ADOPTIVE PARENT UNDER TEXAS LAW, BUT ALSO TO PROVE WHY THE PETITIONER'S
CONSENT TO THE ADOPTION WAS NOT REQUIRED.  HAD NEITHER SIDE OFFERED ANY
EVIDENCE, THOSE WHO INITIATED THE ADOPTION PROCEEDINGS COULD NOT HAVE
PREVAILED. 

INSTEAD, THE PETITIONER WAS FACED ON HIS FIRST APPEARANCE IN THE
COURTROOM WITH THE TASK OF OVERCOMING AN ADVERSE DECREE ENTERED BY ONE
JUDGE, BASED UPON A FINDING OF NON-SUPPORT MADE BY ANOTHER JUDGE.  AS
THE RECORD SHOWS, THERE WAS PLACED UPON THE PETITIONER THE BURDEN OF
AFFIRMATIVELY SHOWING THAT HE HAD CONTRIBUTED TO THE SUPPORT OF HIS
DAUGHTER TO THE LIMIT OF HIS FINANCIAL ABILITY OVER THE PERIOD
INVOLVED.  THE BURDENS THUS PLACED UPON THE PETITIONER WERE REAL, NOT
PURELY THEORETICAL.  FOR "IT IS PLAIN THAT WHERE THE BURDEN OF PROOF
LIES MAY BE DECISIVE OF THE OUTCOME."  SPEISER V. RANDALL, 357 U.S.
513, 525.  YET THESE BURDENS WOULD NOT HAVE BEEN IMPOSED UPON HIM HAD
HE BEEN GIVEN TIMELY NOTICE IN ACCORD WITH THE CONSTITUTION. 

A FUNDAMENTAL REQUIREMENT OF DUE PROCESS IS "THE OPPORTUNITY TO BE
HEARD."  GRANNIS V. ORDEAN, 234 U.S. 385, 394.  IT IS AN OPPORTUNITY
WHICH MUST BE GRANTED AT A MEANINGFUL TIME AND IN A MEANINGFUL MANNER. 
THE TRIAL COURT COULD HAVE FULLY ACCORDED THIS RIGHT TO THE PETITIONER
ONLY BY GRANTING HIS MOTION TO SET ASIDE THE DECREE AND CONSIDER THE
CASE ANEW.  ONLY THAT WOULD HAVE WIPED THE SLATE CLEAN.  ONLY THAT
WOULD HAVE RESTORED THE PETITIONER TO THE POSITION HE WOULD HAVE
OCCUPIED HAD DUE PROCESS OF LAW BEEN ACCORDED TO HIM IN THE FIRST
PLACE.  HIS MOTION SHOULD HAVE BEEN GRANTED. 

FOR THE REASONS STATED, THE JUDGMENT IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
IT IS SO ORDERED. 

FN1  MRS. MANZO JOINED THE PETITION IN ORDER TO MANIFEST HER CONSENT
TO THE ADOPTION, AND ALSO FILED A SEPARATE WRITTEN CONSENT. 

FN2  VERNON'S ANN. CIV. STAT., ART. 46A, SEC. 6, PROVIDES IN
PERTINENT PART AS FOLLOWS: 

"EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, NO ADOPTION SHALL BE
PERMITTED EXCEPT WITH THE WRITTEN CONSENT OF THE LIVING PARENTS OF THE
CHILD; PROVIDED, HOWEVER, THAT IF A LIVING PARENT OR PARENTS SHALL
VOLUNTARILY ABANDON AND DESERT A CHILD SOUGHT TO BE ADOPTED, FOR A
PERIOD OF TWO (2) YEARS, AND SHALL HAVE LEFT SUCH CHILD TO THE CARE,
CUSTODY, CONTROL AND MANAGEMENT OF OTHER PERSONS, OR IF SUCH PARENT OR
PARENTS SHALL HAVE NOT CONTRIBUTED SUBSTANTIALLY TO THE SUPPORT OF SUCH
CHILD DURING SUCH PERIOD OF TWO (2) YEARS COMMENSURATE WITH HIS
FINANCIAL ABILITY, THEN, IN EITHER EVENT, IT SHALL NOT BE NECESSARY TO
OBTAIN THE WRITTEN CONSENT OF THE LIVING PARENT OR PARENTS IN SUCH
DEFAULT, AND IN SUCH CASES ADOPTION SHALL BE PERMITTED ON THE WRITTEN
CONSENT OF THE JUDGE OF THE JUVENILE COURT OF THE COUNTY OF SUCH
CHILD'S RESIDENCE; OR IF THERE BE NO JUVENILE COURT, THEN ON THE
WRITTEN CONSENT OF THE JUDGE OF THE COUNTY COURT OF THE COUNTY OF SUCH
CHILD'S RESIDENCE." 

THE PETITIONER DOES NOT HERE QUESTION THE CONSTITUTIONAL VALIDITY OF
THE SUBSTANTIVE PROVISIONS OF THIS STATUTE. 

FN3  VERNON'S ANN. CIV. STAT., ART. 46A, SEC. 9. 

FN4  THE THIRD PARAGRAPH OF THE PETITIONER'S MOTION WAS AS FOLLOWS: 

"AT THE TIME THE ABOVE ENTITLED AND NUMBERED PROCEEDING CAME ON TO BE
HEARD AND JUDGMENT RENDERED, YOUR PETITIONER HAD NEVER BEEN ADVISED OR
GIVEN NOTICE, ACTUAL OR CONSTRUCTIVE, AS REQUIRED BY THE LAWS OF TEXAS,
THAT THIS PROCEEDING WAS TO BE HEARD OR THAT IT WAS EVEN PENDING OR OF
THE JUDGMENT HEREIN UNTIL AFTER THE RENDITION OF THE JUDGMENT, NOR WAS
ANY ATTEMPT MADE TO NOTIFY PETITIONER IN ANY WAY OF THIS PROCEEDING
ALTHOUGH HIS ADDRESS AND WHEREABOUTS WHERE WELL KNOWN TO THE PARTIES,
IN FACT THE PARTIES TO THIS PROCEEDING DELIBERATELY AND WRONGFULLY
WITHHELD ALL NOTICE FROM PETITIONER FOR THE EXPRESSED PURPOSE OF
DENYING HIM ANY OPPORTUNITY TO APPEAR, CONTEST AND PRESENT HIS DEFENSES
TO THIS PROCEEDING; AND THAT PETITIONER WAS PREVENTED FROM APPEARING
AND PRESENTING HIS DEFENSES NOT BY HIS OWN FAULT OR NEGLIGENCE BUT
RATHER BY THE DELIBERATE AND WRONGFUL ACTS OF THE PARTIES TO THIS
PROCEEDING." 

THE PRAYER OF THE MOTION WAS AS FOLLOWS: 

"WHEREFORE, PETITIONER PRAYS THAT THE JUDGMENT AND DECREE ENTERED IN
THIS PROCEEDING BE IN ALL THINGS VACATED, SET ASIDE AND ANNULLED AND A
NEW TRIAL GRANTED." 

FN5  SEE NOTE 2, SUPRA. 

FN6  371 S.W.2D 407. 

FN7  SEE LEE V. PURVIN, 285 S.W.2D 405; DENDY V. WILSON, 142 TEX.
460, 179 S.W.2D 269; DEWITT V. BROOKS, 143 TEX. 122, 182 S.W.2D 687;
JOHNSTON V. CHAPMAN, 279 S.W.2D 597. 
..END :











GENERAL MOTORS CORP. V. DISTRICT OF COLUMBIA 380 U.S. 553 


NO. 352.  ARGUED MARCH 10, 1965 - DECIDED APRIL 27, 1965 - 118 U.S. APP.
D.C. 381, 336 F.2D 885, REVERSED AND REMANDED. 


THE DISTRICT OF COLUMBIA INCOME AND FRANCHISE TAX ACT OF 1947 IMPOSES
A FRANCHISE TAX ON CORPORATIONS ENGAGING IN TRADE OR BUSINESS WITHIN
THE DISTRICT, WHICH IS MEASURED BY THAT PORTION OF THE NET INCOME WHICH
"IS FAIRLY ATTRIBUTABLE TO ANY TRADE OR BUSINESS CARRIED ON OR ENGAGED
IN WITHIN THE DISTRICT."  THE ACT PROVIDES THAT IF THE CORPORATION'S
TRADE OR BUSINESS IS CARRIED ON BOTH WITHIN AND WITHOUT THE DISTRICT,
THE NET INCOME DERIVED THEREFROM SHALL BE DEEMED TO BE INCOME FROM
SOURCES WITHIN AND WITHOUT THE DISTRICT.  PURSUANT TO STATUTORY
AUTHORITY THE DISTRICT COMMISSIONERS ISSUED REGULATIONS PROVIDING THAT
WHERE INCOME IS DERIVED FROM THE MANUFACTURE AND SALE OF TANGIBLE
PERSONALTY, THE PORTION TO BE APPORTIONED TO THE DISTRICT SHALL BE SUCH
PERCENTAGE OF THE TOTAL INCOME AS THE DISTRICT SALES ARE OF TOTAL SALES
MADE EVERYWHERE.  THE PETITIONER, A DELAWARE CORPORATION MANUFACTURING
AND SELLING MOTOR VEHICLES AND PARTS, HAS MANUFACTURING PLANTS IN
MICHIGAN, DELAWARE AND MARYLAND, FROM WHICH ORDERS FOR CAR SALES TO
DEALERS IN THE DISTRICT WERE FILLED.  THE PETITIONER ATTACKS THE
ASSESSMENT OF TAXES PURSUANT TO THE REGULATIONS AS UNAUTHORIZED BY THE
STATUTE AND VIOLATIVE OF THE CONSTITUTION.  THE COURT OF APPEALS
SUSTAINED THE ASSESSMENT FORMULA.  HELD:  THE CHALLENGED REGULATIONS
EXCEED THE STATUTORY AUTHORITY BY ALLOCATING INCOME TO THE DISTRICT IN
DISREGARD OF THE EXPRESS RESTRICTIONS OF THE LAW.  PP. 555-562. 

(A)  WITH RESPECT TO THAT PORTION OF PETITIONER'S INCOME WHICH ARISES
FROM SALES WITHIN THE DISTRICT AND MANUFACTURE OUTSIDE THE DISTRICT,
THE STATUTE REQUIRES THAT SOME PART THEREOF BE DEEMED TO ARISE FROM
SOURCES OUTSIDE THE DISTRICT.  PP. 557-559. 

(B)  SINCE MOST STATES IMPOSING CORPORATE INCOME TAXES APPORTION
CORPORATE INCOME BY GIVING EQUAL WEIGHT TO GEOGRAPHICAL DISTRIBUTION OF
PLANT, PAYROLL, AND SALES, THE USE OF A FORMULA BASED WHOLLY ON SALES
WILL RESULT IN MULTIPLE TAXATION AND UNFAIR ALLOCATION OF CORPORATE
INCOME.  PP. 559-560. 

(C)  THE APPORTIONMENT METHOD USED SHOULD HAVE A REASONABLE RELATION
TO THE CORPORATE ACTIVITIES WITHIN A STATE, AND THE GEOGRAPHIC
DISTRIBUTION OF SALES, STANDING ALONE, PROVIDES A DOUBTFUL CRITERION OF
ALLOCATION.  PP. 560-561. 

(D)  THE STATUTORY LANGUAGE DOES NOT ALLOW THE USE OF AN
APPORTIONMENT FORMULA UTILIZING ONLY THE SALES FACTOR.  PP. 561-562. 

GENERAL MOTORS CORP. V. DISTRICT OF COLUMBIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE DISTRICT OF COLUMBIA INCOME AND FRANCHISE TAX ACT OF 1947 IMPOSES
A TAX OF 5% ON THE TAXABLE INCOME OF EVERY CORPORATION, FOREIGN OR
DOMESTIC, FOR THE PRIVILEGE OF ENGAGING IN ANY TRADE OR BUSINESS WITHIN
THE DISTRICT.  (FN1)  THE ACT FURTHER PROVIDES THAT "THE MEASURE OF THE
FRANCHISE TAX SHALL BE THAT PORTION OF THE NET INCOME OF THE
CORPORATION  ...  AS IS FAIRLY ATTRIBUTABLE TO ANY TRADE OR BUSINESS
CARRIED ON OR ENGAGED IN WITHIN THE DISTRICT AND SUCH OTHER NET INCOME
AS IS DERIVED FROM SOURCES WITHIN THE DISTRICT."  (FN2)  THE ACT DOES
NOT ATTEMPT TO DEFINE A SPECIFIC METHOD WHEREBY THE PORTION OF INCOME
"FAIRLY ATTRIBUTABLE" TO THE DISTRICT IS TO BE DETERMINED, BUT
AUTHORIZES THE DISTRICT COMMISSIONERS TO PRESCRIBE REGULATIONS FOR SUCH
DETERMINATION.  (FN3) HOWEVER, THE COMMISSIONERS' DISCRETION IN
DEVISING SUCH REGULATIONS IS NOT UNFETTERED, AS THE ACT FURTHER
COMMANDS:  "IF THE TRADE OR BUSINESS OF ANY CORPORATION  ...  IS
CARRIED ON OR ENGAGED IN BOTH WITHIN AND WITHOUT THE DISTRICT, THE NET
INCOME DERIVED THEREFROM SHALL  ...  BE DEEMED TO BE INCOME FROM
SOURCES WITHIN AND WITHOUT THE DISTRICT."  (FN4) 

ACTING PURSUANT TO THE AUTHORITY DELEGATED TO FORMULATE REGULATIONS
GOVERNING THE ALLOCATION OF INCOME, THE DISTRICT COMMISSIONERS
PROMULGATED REGULATIONS WHICH PROVIDE: "WHERE INCOME FOR ANY TAXABLE
YEAR IS DERIVED FROM THE MANUFACTURE AND SALE OR PURCHASE AND SALE OF
TANGIBLE PERSONAL PROPERTY, THE PORTION THEREOF TO BE APPORTIONED TO
THE DISTRICT SHALL BE SUCH PERCENTAGE OF THE TOTAL OF SUCH INCOME AS
THE DISTRICT SALES MADE DURING SUCH TAXABLE YEAR BEAR TO THE TOTAL
SALES MADE EVERYWHERE DURING SUCH TAXABLE YEAR."  (FN5) 

THE PETITIONER, GENERAL MOTORS CORPORATION (G.M.), SEEKS REVIEW OF AN
EN BANC DECISION OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT WHICH APPROVED THE APPLICATION OF THESE REGULATIONS IN
DETERMINING THE PROPORTION OF ITS TOTAL NET INCOME ALLOCABLE TO THE
DISTRICT FOR THE PURPOSE OF COMPUTING THE FRANCHISE TAX DUE.  (FN6)
GENERAL MOTORS ATTACKS THIS METHOD OF COMPUTATION ON THE GROUNDS THAT
IT ATTRIBUTES TO THE DISTRICT AN UNREASONABLY HIGH PROPORTION OF ITS
TOTAL INCOME AND THAT IT IS THEREFORE BOTH UNAUTHORIZED BY THE RELEVANT
DUE PROCESS CLAUSES OF THE CONSTITUTION.  WE AGREE THAT THIS METHOD OF
ALLOCATION IS NOT AUTHORIZED BY THE D.C. CODE AND THEREFORE REVERSE THE
JUDGMENT OF THE COURT OF APPEALS WITHOUT REACHING THE CONSTITUTIONAL
QUESTIONS RAISED. 

GENERAL MOTORS IS ENGAGED IN THE MANUFACTURE AND SALE OF MOTOR
VEHICLES, PARTS, AND ACCESSORIES.  A DELAWARE CORPORATION, THE
PETITIONER MAINTAINS ITS PRINCIPAL OFFICES IN NEW YORK AND DETROIT.  IT
CARRIES ON NO MANUFACTURING OPERATIONS WITHIN THE DISTRICT OF COLUMBIA,
BUT IT MAKES SUBSTANTIAL SALES TO CUSTOMERS LOCATED WITHIN THE
DISTRICT, CHIEFLY RETAIL AUTOMOBILE DEALERS.  DURING THE YEARS IN
QUESTION, 1957 AND 1958, ITS VOLUME OF SALES TO SUCH CUSTOMERS
AGGREGATED $37,185,704 AND $32,542,519, RESPECTIVELY.  (FN7)  ORDERS
FOR THESE SALES WERE RECEIVED AND FILLED OUTSIDE THE DISTRICT, AND THE
PRODUCTS WERE SHIPPED TO CUSTOMERS FROM G.M. MANUFACTURING PLANTS IN
MARYLAND, DELAWARE, AND MICHIGAN. 

IT IS THE CLAIM OF G.M. THAT THE USE OF THE "SALES-FACTOR FORMULA" IN
THE REGULATIONS IS BEYOND THE AUTHORITY OF THE STATUTE, BECAUSE THAT
FORMULA TAXES MORE OF ITS NET INCOME THAN IS "FAIRLY ATTRIBUTABLE" TO
ITS DISTRICT OF COLUMBIA BUSINESS, PARTICULARLY IN LIGHT OF THE
STATUTORY PROVISION WHICH PROVIDES THAT THE NET INCOME OF A BUSINESS
CARRIED ON BOTH WITHIN AND WITHOUT THE DISTRICT SHALL BE DEEMED TO BE
FROM SOURCES WITHIN AND WITHOUT THE DISTRICT.  WE AGREE THAT THE
COMMISSIONERS EXCEEDED THEIR STATUTORY AUTHORITY BY ALLOCATING INCOME
TO THE DISTRICT IN DISREGARD OF THE EXPRESS RESTRICTIONS OF THE LAW. 

WE ARE NORMALLY CONTENT TO LEAVE UNDISTURBED DECISIONS BY THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT CONCERNING THE IMPORT
OF LEGISLATION GOVERNING THE AFFAIRS OF THE DISTRICT.  HOWEVER, AT
TIMES APPLICATION OF THE DISTRICT CODE HAS AN IMPACT NOT CONFINED TO
THE POTOMAC'S SHORES, BUT REACHING FAR BEYOND.  THIS IS SUCH A CASE,
FOR APPROVAL OF THE DISTRICT COMMISSIONERS' REGULATIONS LENDS SANCTION
TO AN APPORTIONMENT FORMULA SERIOUSLY AT VARIANCE WITH THOSE PREVAILING
IN THE VAST MAJORITY OF STATES AND CREATES SUBSTANTIAL DANGERS OF
MULTIPLE TAXATION.  WHERE A DECISION IS OF SUCH SIGNIFICANCE TO
INTERSTATE COMMERCE, AND WHERE THE RESULT REACHED INVOLVES STATUTORILY
UNSUPPORTABLE EXERTIONS OF ADMINISTRATIVE POWER, THE TRADITIONAL
REASONS UNDERLYING OUR CUSTOMARY REFUSAL TO REVIEW INTERPRETATIONS OF
DISTRICT LAW DO NOT APPLY. 

IT IS OF COURSE CLEAR THAT THE DISTRICT CODE DOES NOT EXPRESSLY
PRESCRIBE THE USE OF ANY PARTICULAR FORMULA FOR THE APPORTIONMENT OF
INCOME TO SOURCES WITHIN AND WITHOUT THE DISTRICT.  ON THE CONTRARY,
THE CODE EXPRESSLY AUTHORIZES THE DISTRICT COMMISSIONERS TO PROMULGATE
REGULATIONS FOR THE DETAILED APPORTIONMENT OF THE INCOME OF MULTISTATE
ENTERPRISES.  BUT NEITHER DOES THE CODE LEAVE THE COMMISSIONERS WHOLLY
UNGUIDED IN THEIR EXERCISE OF THIS AUTHORITY.  THE COMMISSIONERS'
AUTHORITY IS CLEARLY LIMITED BY THE PROVISION  (SEC. 47-1580A) WHICH
REQUIRES THAT THE NET INCOME OF A CORPORATION DOING BUSINESS INSIDE AND
OUTSIDE THE DISTRICT BE DEEMED TO ARISE FROM SOURCES SITUATED IN LIKE
FASHION.  TO UNDERSTAND THE MEANING OF THIS LIMITATION, WE NEED BUT
TAKE THE SIMPLE EXAMPLE OF A CORPORATION WHICH HAS ITS MANUFACTURING
FACILITIES LOCATED WHOLLY IN MARYLAND AND SELLS ALL OF ITS PRODUCTS IN
THE DISTRICT OF COLUMBIA.  APPLICATION OF THE COMMISSIONERS' FORMULA
WOULD RESULT IN THE ALLOCATION OF 100% OF THE CORPORATION'S INCOME TO
THE DISTRICT.  YET THERE CAN BE NO DOUBT THAT THE BUSINESS OF THE
CORPORATION IS CARRIED ON BOTH WITHIN AND WITHOUT THE DISTRICT, VIZ.,
MANUFACTURE IN MARYLAND AND SALES IN THE DISTRICT.  THE STATUTE DOES
NOT SAY THAT NET INCOME SHALL BE DEEMED TO BE DERIVED FROM SOURCES
WITHIN AND WITHOUT THE DISTRICT ONLY WHERE THE SALES OF ANY CORPORATION
ARE MADE BOTH WITHIN AND WITHOUT THE DISTRICT, WHICH IS THE EFFECT OF
THE COMMISSIONERS' REGULATION.  THE STATUTE IS PHRASED MORE BROADLY AND
COMMANDS APPORTIONMENT OF INCOME TO SOURCES WITHIN AND WITHOUT THE
DISTRICT WHENEVER "THE TRADE OR BUSINESS OF ANY CORPORATION  ...  IS
CARRIED ON OR ENGAGED IN BOTH WITHIN AND WITHOUT THE DISTRICT."  AS IT
IS CLEAR THAT SOME PART OF THE TRADE OR BUSINESS OF THIS HYPOTHETICAL
CORPORATION IS CARRIED ON WITHOUT THE DISTRICT, THE CONCLUSION FOLLOWS
THAT THE COMMISSIONERS MUST "DEEM" SOME PART OF THE INCOME OF THIS
CORPORATION TO BE DERIVED FROM SOURCES OUTSIDE THE DISTRICT. 

IT IS SAID THAT THE COMMISSIONERS' REGULATIONS ARE WITHIN THE
STATUTORY GRANT OF AUTHORITY BECAUSE THE LANGUAGE "THE NET INCOME
DERIVED THEREFROM" IN SEC. 47-1580A MUST BE READ TO MEAN THE TOTAL
INCOME OF THE CORPORATION AND NOT THE "NET INCOME ARISING FROM
ACTIVITIES IN THE DISTRICT."  THE SECTION MUST BE SO READ, IT IS
ARGUED, BECAUSE THIS READING LEAST RESTRICTS THE DISCRETION OF THE
COMMISSIONERS IN DEVISING APPORTIONMENT FORMULAE, AND THE TRADITIONAL
CANON OF BROAD CONSTRUCTION OF REVENUE MEASURES DEMANDS THAT
RESTRICTIONS ON THE COMMISSIONERS' DISCRETION BE MINIMIZED.  APPLYING
THIS APPROACH TO THE CASE AT HAND, IT IS ARGUED THAT THE COMMISSIONERS
FULFILLED THEIR STATUTORY OBLIGATION IN APPORTIONING THE TOTAL INCOME
OF G.M. TO SOURCES INSIDE AND OUTSIDE THE DISTRICT IN ACCORDANCE WITH
THE GEOGRAPHICAL DISTRIBUTION OF THE COMPANY'S SALES. 

WHERE, AS IN THIS CASE, SOME PORTION OF A CORPORATION'S INCOME IS
DERIVED FROM MANUFACTURE AND SALE OUTSIDE THE DISTRICT, THERE IS NO
QUESTION THAT THE STATUTE REQUIRES THE COMMISSIONERS TO ALLOCATE THAT
PORTION TO SOURCES OUTSIDE THE DISTRICT.  (FN8)  HOWEVER, IT DOES NOT
FOLLOW THAT THE MAKING OF THAT KIND OF ALLOCATION ALONE RELIEVES THE
COMMISSIONERS OF THEIR STATUTORY RESPONSIBILITY TO APPORTION THAT PART
OF A CORPORATION'S INCOME ARISING FROM MANUFACTURE OUTSIDE AND SALE
INSIDE THE DISTRICT LIMITS.  AS TO THIS SEGMENT OF ITS INCOME, G.M. IS
IN PRECISELY THE SAME SITUATION AS THE HYPOTHETICAL CORPORATION
MANUFACTURING WHOLLY IN MARYLAND AND SELLING SOLELY IN THE DISTRICT;
THAT IS, IT IS CARRYING ON A BUSINESS PARTLY WITHIN AND PARTLY WITHOUT
THE DISTRICT LIMITS.  IT IS NOT ENOUGH UNDER THE STATUTE TO REQUIRE
APPORTIONMENT OF INCOME DERIVED FROM DISTRICT SALES ONLY IN THE CASE
WHERE THE TAXED CORPORATION HAS NO SALES OUTSIDE THE DISTRICT.  THE
INESCAPABLE AND DETERMINATIVE FACT IN BOTH THE HYPOTHETICAL CASE AND
THE CASE BEFORE US IS THAT THE COMPANY CARRIES ON BUSINESS BOTH INSIDE
AND OUTSIDE THE DISTRICT WITH RESPECT TO THE INCOME WHICH IT DERIVES
FROM THE SALES MADE WITHIN THE DISTRICT.  CONSEQUENTLY, SEC. 47-1580A
REQUIRES THAT SOME PORTION OF THIS INCOME BE DEEMED TO ARISE FROM
SOURCES OUTSIDE THE DISTRICT. 

THE CONCLUSION WHICH WE REACH BY ANALYSIS OF THE PLAIN LANGUAGE OF
THE STATUTE ALSO FINDS SUPPORT IN THE CONSEQUENCES WHICH A CONTRARY
VIEW WOULD HAVE FOR THE OVERALL PATTERN OF TAXATION OF INCOME DERIVED
FROM INTERSTATE COMMERCE.  THE GREAT MAJORITY OF STATES IMPOSING
CORPORATE INCOME TAXES APPORTION THE TOTAL INCOME OF A CORPORATION BY
APPLICATION OF A THREE-FACTOR FORMULA WHICH GIVES EQUAL WEIGHT TO THE
GEOGRAPHICAL DISTRIBUTION OF PLANT, PAYROLL, AND SALES.  (FN9)  THE USE
OF AN APPORTIONMENT FORMULA BASED WHOLLY ON THE SALES FACTOR, IN THE
CONTEXT OF GENERAL USE OF THE THREE-FACTOR APPROACH, WILL ORDINARILY
RESULT IN MULTIPLE TAXATION OF CORPORATE NET INCOME; FOR THE STATES IN
WHICH THE PROPERTY AND PAYROLL OF THE CORPORATION ARE LOCATED WILL
ALLOCATE TO THEMSELVES 67% OF THE CORPORATION'S INCOME, WHEREAS THE
JURISDICTIONS IN WHICH THE SALES ARE MADE WILL ALLOCATE 100% OF THE
INCOME TO THEMSELVES.  CONVERSELY, IN SOME CASES ENTERPRISES WILL HAVE
THEIR PAYROLL AND PLANT LOCATED IN THE SALES-FACTOR JURISDICTIONS AND
MAKE THEIR SALES IN THE THREE-FACTOR JURSIDICTIONS SO THAT ONLY 33% OF
THEIR INCOMES WILL BE SUBJECT TO STATE TAXATION.  IN ANY CASE, THE
SHEER INCONSISTENCY OF THE DISTRICT FORMULA WITH THAT GENERALLY
PREVAILING MAY TEND TO RESULT IN THE UNHEALTHY FRAGMENTATION OF
ENTERPRISE AND AN UNECONOMIC PATTERN OF PLANT LOCATION, AND SO PRESENTS
AN ADDED REASON WHY THIS COURT MUST GIVE PROPER MEANING TO THE RELEVANT
PROVISIONS OF THE DISTRICT CODE. 

MOREOVER, THE RESULT REACHED IN THIS CASE IS CONSISTENT WITH THE
CONCERN WHICH THE COURT HAS SHOWN THAT STATE TAXES IMPOSED ON INCOME
FROM INTERSTATE COMMERCE BE FAIRLY APPORTIONED.  IN UPHOLDING TAXES
IMPOSED ON CORPORATE INCOME BY CONNECTICUT AND NEW YORK AND APPORTIONED
IN ACCORDANCE WITH THE GEOGRAPHICAL DISTRIBUTION OF A CORPORATION'S
PROPERTY, THIS COURT CAREFULLY INQUIRED INTO THE REASONABLENESS OF THE
APPORTIONMENT FORMULAE USED. 

"THE PROFITS OF THE CORPORATION WERE LARGELY EARNED BY A SERIES OF
TRANSACTIONS BEGINNING WITH MANUFACTURE IN CONNECTICUT AND ENDING WITH
SALE IN OTHER STATES.  IN THIS IT WAS TYPICAL OF A LARGE PART OF THE
MANUFACTURING BUSINESS CONDUCTED IN THE STATE.  THE LEGISLATURE IN
ATTEMPTING TO PUT UPON THIS BUSINESS ITS FAIR SHARE OF THE BURDEN OF
TAXATION WAS FACED WITH THE IMPOSSIBILITY OF ALLOCATING SPECIFICALLY
THE PROFITS EARNED BY THE PROCESSES CONDUCTED WITHIN ITS BORDERS  ... .
THERE IS  ...  NOTHING IN THIS RECORD TO SHOW THAT THE METHOD OF
APPORTIONMENT ADOPTED BY THE STATE WAS INHERENTLY ARBITRARY, OR THAT
ITS  APPLICATION TO THIS CORPORATION PRODUCED AN UNREASONABLE RESULT." 
UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, 254 U.S. 113, 120-121. 

SEE ALSO BASS, RATCLIFF & GRETTON, LTD. V. STATE TAX COMM'N, 266 U.S.
271.  WHILE THE COURT HAS REFRAINED FROM ATTEMPTING TO DEFINE ANY
SINGLE APPROPRIATE METHOD OF APPORTIONMENT, IT HAS SOUGHT TO ENSURE
THAT THE METHODS USED DISPLAY A MODICUM OF REASONABLE RELATION TO
CORPORATE ACTIVITIES WITHIN THE STATE.  THE COURT HAS APPROVED FORMULAE
BASED ON THE GEOGRAPHICAL DISTRIBUTION OF CORPORATE PROPERTY AND THOSE
BASED ON THE STANDARD THREE-FACTOR FORMULA.  SEE, E.G., UNDERWOOD
TYPEWRITER CO. V.  CHAMBERLAIN, SUPRA; BUTLER BROS. V. MCCOLGAN, 315
U.S. 501.  THE STANDARD THREE-FACTOR FORMULA CAN BE JUSTIFIED AS A
ROUGH, PRACTICAL APPROXIMATION OF THE DISTRIBUTION OF EITHER A
CORPORATION'S SOURCES OF INCOME OR THE SOCIAL COSTS WHICH IT
GENERATES.  BY CONTRAST, THE GEOGRAPHIC DISTRIBUTION OF A CORPORATION'S
SALES IS, BY ITSELF, OF DUBIOUS SIGNIFICANCE IN INDICATING THE LOCUS OF
EITHER FACTOR.  WE OF COURSE DO NOT MEAN TO TAKE ANY POSITION ON THE
CONSTITUTIONALITY OF A STATE INCOME TAX BASED ON THE SALES FACTOR
ALONE.  FOR THE PRESENT PURPOSE, IT IS SUFFICIENT TO NOTE THAT THE
FACTORS ALLUDED TO BY THIS COURT IN JUSTIFYING APPORTIONMENT MEASURES
CONSTITUTIONALLY CHALLENGED IN THE PAST LEND LITTLE SUPPORT TO THE USE
OF AN EXCLUSIVELY SALES-ORIENTED APPROACH.  IN CONSTRUING THE DISTRICT
CODE TO PROHIBIT THE USE OF A SALES-FACTOR FORMULA, WE SACRIFICE NONE
OF THE VALUES WHICH OUR SCRUTINY OF STATE APPORTIONMENT MEASURES HAS
SOUGHT TO PROTECT.    IN SUM, WE FIND THAT THE LANGUAGE OF THE
AUTHORIZING STATUTE DOES NOT PERMIT THE APPLICATION OF AN APPORTIONMENT
FORMULA WHICH MAKES USE OF THE SALES FACTOR ALONE.  THE CONCLUSION
WHICH WE DRAW FROM EXAMINATION OF THE STATUTORY LANGUAGE FINDS SUPPORT
IN THE CONFLICT WITH OTHER TAXING JURISDICTIONS WHICH WOULD REUSLT FROM
A CONTRARY VIEW.  IT FINDS FURTHER SUPPORT IN THE CONTINUING CONCERN
FOR FAIR APPORTIONMENT WHICH THIS COURT HAS DISPLAYED OVER THE YEARS IN
SCRUTINIZING STATE TAXING STATUTES.  AS THE DISTRICT CODE CONFIDES IN
THE COMMISSIONERS THE AUTHORITY TO PRESCRIBE DETAILED REGULATIONS, IT
IS NOT FOR US TO MAKE SPECIFIC PRESCRIPTION, AND WE LIMIT OURSELVES TO
HOLDING THAT THE PRESENT REGULATION IS UNAUTHORIZED BY THE STATUTE. 
ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT IS REVERSED AND THE CASE REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  D.C. CODE 1961, SEC. 47-1571A. 

FN2  D.C. CODE 1961, SEC. 47-1580. 

FN3  D.C. CODE 1961, SEC. 47-1580A. 

FN4  IBID. 

FN5  SECTION 10.2(C) OF THE DISTRICT OF COLUMBIA INCOME AND FRANCHISE
TAX REGULATIONS, RELETTERED BY AMENDMENT OF JULY 24, 1956. 

FN6  118 U.S. APP. D.C. 381, 336 F.2D 885, CERTIORARI GRANTED, 379
U.S. 887.  AN EARLIER DECISION (91 WASH. LAW REP. 650) OF A PANEL OF
THE CIRCUIT COURT, REVERSED BY THE DECISION HERE REVIEWED, HAD REACHED
A CONTRARY CONCLUSION IN AFFIRMING THE DECISION OF THE DISTRICT OF
COLUMBIA TAX COURT (CCH D.C. TAX REP. PARA. 200-006). 

FN7  OUT OF TOTAL SALES OF $9,461,855,874 IN 1957 AND $7,853,393,381
IN 1958. 

FN8  THIS IS NOT TO SAY THAT THE COMMISSIONERS NEED ENGAGE IN
DETAILED SEGMENTATION OF CORPORATE INCOME TO SOURCE AND SPECIFIC
ALLOCATION THEREOF.  ALL THAT IS REQUIRED IS THAT THE FORMULA ADOPTED
FOR GENERAL APPLICATION TAKE ACCOUNT OF THE GEOGRAPHICAL SPREAD OF THE
MAJOR DIMENSIONS OF A BUSINESS. 

FN9  OF THE 38 STATES REQUIRING PAYMENT OF SUCH TAXES, 26 EMPLOY
VARIETIES OF A THREE-FACTOR FORMULA WHICH TAKES INTO ACCOUNT THE
GEOGRAPHICAL DISTRIBUTION OF A CORPORATION'S PAYROLL, PROPERTY AND
SALES, GENERALLY GIVING EQUAL WEIGHT TO EACH FACTOR.  ANOTHER THREE USE
SUBSTANTIALLY THE SAME FORMULA, REPLACING THE PAYROLL FACTOR WITH THE
BROADER CATEGORY OF MANUFACTURING COSTS.  YET ANOTHER THREE MAKE USE OF
A FORMULA WHICH INCORPORATES THE SALES AND PROPERTY FACTORS.  ONLY FOUR
TAXING JURISDICTIONS USE FORMULAE BASED SOLELY ON THE GEOGRAPHIC
DISTRIBUTION OF CORPORATE SALES.  SEE H.R. REP. NO. 1480, 88TH CONG.,
2D SESS., AT 119. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, AGREEING WITH THE COURT OF
APPEALS THAT THE TAX HERE IS AUTHORIZED BY THE CONTROLLING STATUTE,
WOULD AFFIRM THE JUDGMENT. 
..END :























COMMISSIONER OF INTERNAL REVENUE V. BROWN 380 U.S. 563 


NO. 63.  ARGUED MARCH 3, 1965 - DECIDED APRIL 27, 1965 - 325 F.2D 313,
AFFIRMED. 


RESPONDENT BROWN, MEMBERS OF HIS FAMILY AND THREE OTHERS, WHO OWNED
SUBSTANTIALLY ALL THE STOCK OF A LUMBER MILLING COMPANY, OF WHICH BROWN
WAS PRESIDENT, SOLD THEIR STOCK TO A TAX-EXEMPT CHARITABLE ORGANIZATION
(INSTITUTE) FOR $1,300,000.  INSTITUTE PAID $5,000 DOWN FROM THE
COMPANY'S ASSETS.  CONCOMITANTLY WITH THE TRANSFER, INSTITUTE
LIQUIDATED THE COMPANY AND LEASED ITS ASSETS FOR FIVE YEARS TO A NEW
CORPORATION (FORTUNA), FORMED AND WHOLLY OWNED BY RESPONDENTS'
ATTORNEYS, WHICH AGREED TO PAY INSTITUTE 80% OF THE OPERATING PROFITS
BEFORE TAXES AND DEPRECIATION, INSTITUTE TO APPLY 90% OF SUCH PAYMENTS
(AMOUNTING TO 72% OF THE NET PROFITS OF THE BUSINESS) TO A $1,300,000
NONINTEREST-BEARING NOTE INSTITUTE GAVE THE RESPONDENTS WHICH WAS
SECURED BY MORTGAGES AND ASSIGNMENTS OF THE ASSETS LEASED TO FORTUNA. 
THE ENTIRE BALANCE OF THE NOTE WAS PAYABLE IF PAYMENTS THEREON FAILED
TO TOTAL $250,000 OVER ANY CONSECUTIVE TWO YEARS.  THE FOREGOING
TRANSACTION, CONSUMMATED IN FEBRUARY 1953, WAS EFFECTED PURSUANT TO
AGREEMENT BETWEEN RESPONDENTS, INSTITUTE, AND OTHER INTERESTED
PARTIES.   FORTUNA OPERATED THE BUSINESS WITH PRACTICALLY THE SAME
PERSONNEL (INCLUDING BROWN AS GENERAL MANAGER UP TO HIS RESIGNATION
OVER A YEAR AND A HALF LATER) UNTIL 1957, WHEN FORTUNA'S OPERATIONS
ENDED WITH A SEVERE DECLINE IN THE LUMBER MARKET.  RESPONDENTS DID NOT
REPOSSESS UNDER THEIR MORTGAGES BUT AGREED THAT THE PROPERTIES BE SOLD,
WITH INSTITUTE RECEIVING 10% OF THE $300,000 PROCEEDS AND THE
RESPONDENTS THE BALANCE.  IN THEIR FEDERAL INCOME TAX RETURNS
RESPONDENTS SHOWED THE PAYMENTS REMITTED TO THEM OUT OF THE PROFITS OF
THE BUSINESS AS CAPITAL GAINS.  PETITIONER ASSERTED THAT SUCH PAYMENTS
WERE TAXABLE AS ORDINARY INCOME UNDER THE INTERNAL REVENUE CODE.  THE
TAX COURT UPHELD RESPONDENTS' POSITION, CONCLUDING THAT THE TRANSFER TO
THE INSTITUTE OF RESPONDENTS' STOCK WAS A BONA FIDE SALE.  THE COURT OF
APPEALS AFFIRMED.  HELD: 

1.  THE TRANSACTION CONSTITUTED A BONA FIDE SALE UNDER LOCAL LAW, THE
INSTITUTE HAVING ACQUIRED TITLE TO THE COMPANY STOCK AND, BY
LIQUIDATION, TO ALL THE ASSETS IN RETURN FOR ITS PROMISE TO PAY OVER
MONEY FROM THE OPERATING PROFITS.  P. 569. 

2.  THE TRANSACTION ALSO CONSTITUTED A SALE WITHIN THE MEANING OF
SEC. 1222(3) OF THE INTERNAL REVENUE CODE DEFINING A CAPITAL GAIN AS
GAIN FROM THE SALE OF A CAPITAL ASSET.  PP. 570-573. 

(A)  THE FACT THAT PAYMENT WAS MADE FROM BUSINESS EARNINGS DID NOT
DIVEST THE TRANSACTION OF ITS STATUS AS A SALE, WHICH IS A TRANSFER OF
PROPERTY FOR A FIXED MONETARY PRICE OR ITS EQUIVALENT.  PP. 570-572. 

(B)  THE SALES PRICE IN THE ARM'S-LENGTH TRANSACTION BETWEEN
RESPONDENTS AND THE INSTITUTE, AS THE TAX COURT FOUND, WAS WITHIN A
REASONABLE RANGE IN LIGHT OF THE COMPANY'S EARNINGS HISTORY AND THE
ADJUSTED NET WORTH OF ITS ASSETS.  P. 572 

(C)  THERE HAD BEEN AN APPRECIATION IN VALUE OF THE COMPANY'S PROPERTY
ACCRUING OVER A PERIOD OF YEARS WHICH RESPONDENTS COULD HAVE REALIZED
AT CAPITAL GAINS RATES ON A CASH SALE OF THEIR STOCK.  PP. 572-573. 

3.  IT DOES NOT FOLLOW FROM THE FACT THAT THERE WAS NO RISK-SHIFTING
FROM SELLER TO BUYER THAT THE TRANSACTION CONSTITUTED NOT A SALE BUT A
DEVICE TO COLLECT FUTURE EARNINGS AT CAPITAL GAINS RATES FOR WHICH THE
PRICE SET WAS EXCESSIVE.  PP. 573-577. 

(A)  THE TAX COURT DID NOT FIND THE PRICE EXCESSIVE.  P. 573. 

(B)  THE PETITIONER OFFERED NO EVIDENCE TO SHOW THAT AN EXCESSIVE
PRICE RESULTED FROM THE LACK OF RISK-SHIFTING.  PP. 573-574. 

(C)  ACCELERATED PAYMENT OF THE PURCHASE PRICE RESULTED FROM THE
DEDUCTIBILITY OF THE RENTS PAYABLE BY FORTUNA WHICH WERE NOT TAXABLE TO
THE INSTITUTE, THUS CONSTITUTING AN ADVANTAGE TO THE SELLER DESIRING
THE BALANCE OF THE PURCHASE PRICE PAID OFF RAPIDLY.  P. 574. 

(D)  RISK-SHIFTING HAS NOT PREVIOUSLY BEEN DEEMED ESSENTIAL TO THE
CONCEPT OF SALE FOR TAX PURPOSES.  PP. 574-575. 

(E)  THE TRANSACTION HERE IS NOT ANALOGOUS TO CASES INVOLVING A
TRANSFER OF MINERAL DEPOSITS IN EXCHANGE FOR A ROYALTY FROM THE
MINERALS PRODUCED, THE MINERAL-EXTRACTING BUSINESS BEING VIEWED AS AN
INCOME-PRODUCING OPERATION AND NOT AS A CONVERSION OF CAPITAL
INVESTMENT.  THOMAS V. PERKINS, 301 U.S. 655, DISTINGUISHED.  PP. 575
577. 

4.  THE TREASURY DEPARTMENT ITSELF HAS NOTED THE AVAILABILITY OF
CAPITAL GAINS TREATMENT ON THE SALE OF CAPITAL ASSETS WHERE THE SELLER
RETAINED AN INTEREST IN THE INCOME PRODUCED BY THE ASSETS.  PP. 578
579. 

COMMISSIONER OF INTERNAL REVENUE V. BROWN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN 1950, WHEN CONGRESS ADDRESSED ITSELF TO THE PROBLEM OF THE DIRECT
OR INDIRECT ACQUISITION AND OPERATION OF GOING BUSINESSES BY CHARITIES
OR OTHER TAX-EXEMPT ENTITIES, IT WAS RECOGNIZED THAT IN MANY OF THE
TYPICAL SALE AND LEASEBACK TRANSACTIONS, THE EXEMPT ORGANIZATION WAS
TRADING ON AND PERHAPS SELLING PART OF ITS EXEMPTION.  H.R. REP. NO.
2319, 81ST CONG., 2D SESS., PP. 38-39; S. REP. NO. 2375, 81ST CONG., 2D
SESS., PP. 31-32.  FOR THIS AND OTHER REASONS, THE INTERNAL REVENUE
CODE WAS ACCORDINGLY AMENDED IN SEVERAL RESPECTS, OF PRINCIPAL
IMPORTANCE FOR OUR PURPOSES BY TAXING AS "UNRELATED BUSINESS INCOME"
THE PROFITS EARNED BY A CHARITY IN THE OPERATION OF A BUSINESS, AS WELL
AS THE INCOME FROM LONG-TERM LEASES OF THE BUSINESS.  (FN1)  THE SHORT
TERM LEASE, HOWEVER, OF FIVE YEARS OR LESS, WAS NOT AFFECTED AND THIS
FACT HAS MOULDED MANY OF THE TRANSACTIONS IN THIS FIELD SINCE THAT
TIME, INCLUDING THE ONE INVOLVED IN THIS CASE.  (FN2) 

THE COMMISSIONER, HOWEVER, IN 1954, ANNOUNCED THAT WHEN AN EXEMPT
ORGANIZATION PURCHASED A BUSINESS AND LEASED IT FOR FIVE YEARS TO
ANOTHER CORPORATION, NOT INVESTING ITS OWN FUNDS BUT PAYING OFF THE
PURCHASE PRICE WITH RENTAL INCOME, THE PURCHASING ORGANIZATION WAS IN
DANGER OF LOSING ITS EXEMPTION; THAT IN ANY EVENT THE RENTAL INCOME
WOULD BE TAXABLE INCOME; THAT THE CHARITY MIGHT BE UNREASONABLY
ACCUMULATING INCOME; AND FINALLY, AND MOST IMPORTANT FOR THIS CASE,
THAT THE PAYMENTS RECEIVED BY THE SELLER WOULD NOT BE ENTITLED TO
CAPITAL GAINS TREATMENT.  REV. RUL. 54-420, 1954-2 CUM. BULL.  128. 

THIS CASE IS ONE OF THE MANY IN THE COURSE OF WHICH THE COMMISSIONER
HAS QUESTIONED THE SALE OF A BUSINESS CONCERN TO AN EXEMPT
ORGANIZATION.  (FN3)  THE BASIC FACTS ARE UNDISPUTED.  CLAY BROWN,
MEMBERS OF HIS FAMILY AND THREE OTHER PERSONS OWNED SUBSTANTIALLY ALL
OF THE STOCK IN CLAY BROWN & COMPANY, WITH SAWMILLS AND LUMBER
INTERESTS NEAR FORTUNA, CALIFORNIA.  CLAY BROWN, THE PRESIDENT OF THE
COMPANY AND SPOKESMAN FOR THE GROUP, WAS APPROACHED BY A REPRESENTATIVE
OF CALIFORNIA INSTITUTE FOR CANCER RESEARCH IN 1952, AND AFTER
CONSIDERABLE NEGOTIATION THE STOCKHOLDERS AGREED TO SELL THEIR STOCK TO
THE INSTITUTE FOR $1,300,000, PAYABLE $5,000 DOWN FROM THE ASSETS OF
THE COMPANY AND THE BALANCE WITHIN 10 YEARS FROM THE EARNINGS OF THE
COMPANY'S ASSETS.  IT WAS PROVIDED THAT SIMULTANEOUSLY WITH THE
TRANSFER OF THE STOCK, THE INSTITUTE WOULD LIQUIDATE THE COMPANY AND
LEASE ITS ASSETS FOR FIVE YEARS TO A NEW CORPORATION, FORTUNA SAWMILLS,
INC., FORMED AND WHOLLY OWNED BY THE ATTORNEYS FOR THE SELLERS.  (FN4)
FORTUNA WOULD PAY TO THE INSTITUTE 80% OF ITS OPERATING PROFIT WITHOUT
ALLOWANCE FOR DEPRECIATION OR TAXES, AND 90% OF SUCH PAYMENTS WOULD BE
PAID OVER BY THE INSTITUTE TO THE SELLING STOCKHOLDERS TO APPLY ON THE
$1,300,000 NOTE.  THIS NOTE WAS NONINTEREST BEARING, THE INSTITUTE HAD
NO OBLIGATION TO PAY IT EXCEPT FROM THE RENTAL INCOME AND IT WAS
SECURED BY MORTGAGES AND ASSIGNMENT OF THE ASSETS TRANSFERRED OR LEASED
TO FORTUNA.  IF THE PAYMENTS ON THE NOTE FAILED TO TOTAL $250,000 OVER
ANY TWO CONSECUTIVE YEARS, THE SELLERS COULD DECLARE THE ENTIRE BALANCE
OF THE NOTE DUE AND PAYABLE.  THE SELLERS WERE NEITHER STOCKHOLDERS NOR
DIRECTORS OF FORTUNA BUT IT WAS PROVIDED THAT CLAY BROWN WAS TO HAVE A
MANAGEMENT CONTRACT WITH FORTUNA AT AN ANNUAL SALARY AND THE RIGHT TO
NAME ANY SUCCESSOR MANAGER IF HE HIMSELF RESIGNED.  (FN5) 

THE TRANSACTION WAS CLOSED ON FEBRUARY 4, 1953.  FORTUNA IMMEDIATELY
TOOK OVER OPERATIONS OF THE BUSINESS UNDER ITS LEASE, ON THE SAME
PREMISES AND WITH PRACTICALLY THE SAME PERSONNEL WHICH HAD BEEN
EMPLOYED BY CLAY BROWN & COMPANY.  EFFECTIVE OCTOBER 31, 1954, CLAY
BROWN RESIGNED AS GENERAL MANAGER OF FORTUNA AND WAIVED HIS RIGHT TO
NAME HIS SUCCESSOR.  IN 1957, BECAUSE OF A RAPIDLY DECLINING LUMBER
MARKET, FORTUNA SUFFERED SEVERE REVERSES AND ITS OPERATIONS WERE
TERMINATED.  RESPONDENT SELLERS DID NOT REPOSSESS THE PROPERTIES UNDER
THEIR MORTGAGES BUT AGREED THEY SHOULD BE SOLD BY THE INSTITUTE WITH
THE LATTER RETAINING 10% OF THE PROCEEDS.  ACCORDINGLY, THE PROPERTY
WAS SOLD BY THE INSTITUTE FOR $300,000.  THE PAYMENTS ON THE NOTE FROM
RENTALS AND FROM THE SALE OF THE PROPERTIES TOTALED $936,131.85. 
RESPONDENTS RETURNED THE PAYMENTS RECEIVED FROM RENTALS AS THE GAIN
FROM THE SALE OF CAPITAL ASSETS.  THE COMMISSIONER, HOWEVER, ASSERTED
THE PAYMENTS WERE TAXABLE AS ORDINARY INCOME AND WERE NOT CAPITAL GAIN
WITHIN THE MEANING OF I.R.C. 1939, SEC. 117(A)(4) AND I.R.C. 1954, SEC.
1222(3).  THESE SECTIONS PROVIDE THAT "THE TERM 'LONG-TERM CAPITAL
GAIN' MEANS GAIN FROM THE SALE OR EXCHANGE OF A CAPITAL ASSET HELD FOR
MORE THAN 6 MONTHS  ...  ." 

IN THE TAX COURT, THE COMMISSIONER ASSERTED THAT THE TRANSACTION WAS
A SHAM AND THAT IN ANY EVENT RESPONDENTS RETAINED SUCH AN ECONOMIC
INTEREST IN AND CONTROL OVER THE PROPERTY SOLD THAT THE TRANSACTION
COULD NOT BE TREATED AS A SALE RESULTING IN A LONG-TERM CAPITAL GAIN. 
A DIVIDED TAX COURT, 37 T.C. 461, FOUND THAT THERE HAD BEEN
CONSIDERABLE GOOD-FAITH BARGAINING AT ARM'S LENGTH BETWEEN THE BROWN
FAMILY AND THE INSTITUTE, THAT THE PRICE AGREED UPON WAS WITHIN A
REASONABLE RANGE IN THE LIGHT OF THE EARNINGS HISTORY OF THE
CORPORATION AND THE ADJUSTED NET WORTH OF ITS ASSETS, THAT THE PRIMARY
MOTIVATION FOR THE INSTITUTE WAS THE PROSPECT OF ENDING UP WITH THE
ASSETS OF THE BUSINESS FREE AND CLEAR AFTER THE PURCHASE PRICE HAS BEEN
FULLY PAID, WHICH WOULD THEN PERMIT THE INSTITUTE TO CONVERT THE
PROPERTY AND THE MONEY FOR USE IN CANCER RESEARCH, AND THAT THERE HAD
BEEN REAL CHANGE OF ECONOMIC BENEFIT IN THE TRANSACTION.  (FN6)  ITS
CONCLUSION WAS THAT THE TRANSFER OF RESPONDENTS' STOCK IN CLAY BROWN &
COMPANY TO THE INSTITUTE WAS A BONA FIDE SALE ARRIVED AT IN AN ARM'S
LENGTH TRANSACTION AND THAT THE AMOUNTS RECEIVED BY RESPONDENTS WERE
PROCEEDS FROM THE SALE OF STOCK AND ENTITLED TO LONG-TERM CAPITAL GAINS
TREATMENT UNDER THE INTERNAL REVENUE CODE.  THE COURT OF APPEALS
AFFIRMED, 325 F.2D 313, AND WE GRANTED CERTIORARI, 377 U.S. 962. 

HAVING ABANDONED IN THE COURT OF APPEALS THE ARGUMENT THAT THIS
TRANSACTION WAS A SHAM, THE COMMISSIONER NOW ADMITS THAT THERE WAS REAL
SUBSTANCE IN WHAT OCCURRED BETWEEN THE INSTITUTE AND THE BROWN FAMILY. 
THE TRANSACTION WAS A SALE UNDER LOCAL LAW.  THE INSTITUTE ACQUIRED
TITLE TO THE STOCK OF CLAY BROWN & COMPANY AND, BY LIQUIDATION, TO ALL
OF THE ASSETS OF THAT COMPANY, IN RETURN FOR ITS PROMISE TO PAY OVER
MONEY FROM THE OPERATING PROFITS OF THE COMPANY.  IF THE STIPULATED
PRICE WAS PAID, THE BROWN FAMILY WOULD FOREVER LOSE ALL RIGHTS TO THE
INCOME AND PROPERTIES OF THE COMPANY.  PRIOR TO THE TRANSFER, THESE
RESPONDENTS HAD ACCESS TO ALL OF THE INCOME OF THE COMPANY; AFTER THE
TRANSFER, 28% OF THE INCOME REMAINED WITH FORTUNA AND THE INSTITUTE. 
RESPONDENTS HAD NO INTEREST IN THE INSTITUTE NOR WERE THEY STOCKHOLDERS
OR DIRECTORS OF THE OPERATING COMPANY.  ANY RIGHTS TO CONTROL THE
MANAGEMENT WERE LIMITED TO THE MANAGEMENT CONTRACT BETWEEN CLAY BROWN
AND FORTUNA, WHICH WAS RELINQUISHED IN 1954. 

WHATEVER SUBSTANCE THE TRANSACTION MIGHT HAVE HAD, HOWEVER, THE
COMMISSIONER CLAIMS THAT IT DID NOT HAVE THE SUBSTANCE OF A SALE WITHIN
THE MEANING OF SEC. 1222(3).  HIS ARGUMENT IS THAT SINCE THE INSTITUTE
INVESTED NOTHING, ASSUMED NO INDEPENDENT LIABILITY FOR THE PURCHASE
PRICE AND PROMISED ONLY TO PAY OVER A PERCENTAGE OF THE EARNINGS OF THE
COMPANY, THE ENTIRE RISK OF THE TRANSACTION REMAINED ON THE SELLERS. 
APPARENTLY, TO QUALIFY AS A SALE, A TRANSFER OF PROPERTY FOR MONEY OR
THE PROMISE OF MONEY MUST BE TO A FINANCIALLY RESPONSIBLE BUYER WHO
UNDERTAKES TO PAY THE PURCHASE PRICE OTHER THAN FROM THE EARNINGS OR
THE ASSETS THEMSELVES OR THERE MUST BE A SUBSTANTIAL DOWN PAYMENT WHICH
SHIFTS AT LEAST PART OF THE RISK TO THE BUYER AND FURNISHES SOME
CUSHION AGAINST LOSS TO THE SELLER. 

TO SAY THAT THERE IS NO SALE BECAUSE THERE IS NO RISK-SHIFTING AND
THAT THERE IS NO RISK-SHIFTING BECAUSE THE PRICE TO BE PAID IS PAYABLE
ONLY FROM THE INCOME PRODUCED BY THE BUSINESS SOLD, IS VERY LITTLE
DIFFERENT FROM SAYING THAT BECAUSE BUSINESS EARNINGS ARE USUALLY
TAXABLE AS ORDINARY INCOME, THEY ARE SUBJECT TO THE SAME TAX WHEN PAID
OVER AS THE PURCHASE PRICE OF PROPERTY.  THIS ARGUMENT HAS RATIONALITY
BUT IT PLACES AN UNWARRANTED CONSTRUCTION ON THE TERM "SALE," IS
CONTRARY TO THE POLICY OF THE CAPITAL GAINS PROVISIONS OF THE INTERNAL
REVENUE CODE, AND HAS NO SUPPORT IN THE CASES.  WE REJECT IT. 

"CAPITAL GAIN" AND "CAPITAL ASSET" ARE CREATURES OF THE TAX LAW AND
THE COURT HAS BEEN INCLINED TO GIVE THESE TERMS A NARROW, RATHER THAN A
BROAD, CONSTRUCTION.  CORN PRODUCTS CO. V. COMMISSIONER, 350 U.S. 46,
52.  A "SALE," HOWEVER, IS A COMMON EVENT IN THE NON-TAX WORLD; AND
SINCE IT IS USED IN THE CODE WITHOUT LIMITING DEFINITION AND WITHOUT
LEGISLATIVE HISTORY INDICATING A CONTRARY RESULT, ITS COMMON AND
ORDINARY MEANING SHOULD AT LEAST BE PERSUASIVE OF ITS MEANING AS USED
IN THE INTERNAL REVENUE CODE.  "GENERALLY SPEAKING, THE LANGUAGE IN THE
REVENUE ACT, JUST AS IN ANY STATUTE, IS TO BE GIVEN ITS ORDINARY
MEANING, AND THE WORDS 'SALE' AND 'EXCHANGE' ARE NOT TO BE READ ANY
DIFFERENTLY."  HELVERING V. FLACCUS LEATHER CO., 313 U.S. 247, 249;
HANOVER BANK V. COMMISSIONER, 369 U.S. 672, 687; COMMISSIONER V.
KORELL, 339 U.S. 619, 627-628; CRANE V. COMMISSIONER, 331 U.S. 1, 6;
LANG V. COMMISSIONER, 289 U.S. 109, 111; OLD COLONY R. CO. V.
COMMISSIONER, 284 U.S. 552, 560. 

"A SALE, IN THE ORDINARY SENSE OF THE WORD, IS A TRANSFER OF PROPERTY
FOR A FIXED PRICE IN MONEY OR ITS EQUIVALENT," IOWA V. MCFARLAND, 110
U.S. 471, 478; IT IS A CONTRACT "TO PASS RIGHTS OF PROPERTY FOR MONEY,
WHICH THE BUYER PAYS OR PROMISES TO PAY TO THE SELLER  ...  ,"
WILLIAMSON V. BERRY, 8 HOW.  495, 544.  COMPARE THE DEFINITION OF
"SALE" IN SEC. 1(2) OF THE UNIFORM SALES ACT AND IN SEC. 2-106(1) OF
THE UNIFORM COMMERCIAL CODE.  THE TRANSACTION WHICH OCCURRED IN THIS
CASE WAS OBVIOUSLY A TRANSFER OF PROPERTY FOR A FIXED PRICE PAYABLE IN
MONEY. 

UNQUESTIONABLY THE COURTS, IN INTERPRETING A STATUTE, HAVE SOME
"SCOPE FOR ADOPTING A RESTRICTED RATHER THAN A LITERAL OR USUAL MEANING
OF ITS WORDS WHERE ACCEPTANCE OF THAT MEANING WOULD LEAD TO ABSURD
RESULTS  ...  OR WOULD THWART THE OBVIOUS PURPOSE OF THE STATUTE." 
HELVERING V. HAMMEL, 311 U.S. 504, 510-511; CF. COMMISSIONER V. GILETTE
MOTOR CO., 364 U.S. 130, 134, AND COMMISSIONER V. P.G. LAKE, INC., 356
U.S. 260, 265.  BUT IT IS OTHERWISE "WHERE NO SUCH CONSEQUENCES WOULD
FOLLOW AND WHERE  ...  IT APPEARS TO BE CONSONANT WITH THE PURPOSES OF
THE ACT  ...  ."  HELVERING V. HAMMEL, SUPRA, AT 511; OZAWA V. UNITED
STATE, 260 U.S. 178, 194.  WE FIND NOTHING IN THIS CASE INDICATING THAT
THE TAX COURT OR THE COURT OF APPEALS CONSTRUED THE TERM "SALE" TOO
BROADLY OR IN A MANNER CONTRARY TO THE PURPOSE OR POLICY OF CAPITAL
GAINS PROVISIONS OF THE CODE. 

CONGRESS INTENDED TO AFFORD CAPITAL GAINS TREATMENT ONLY IN
SITUATIONS "TYPICALLY INVOLVING THE REALIZATION OF APPRECIATION IN
VALUE ACCRUED OVER A SUBSTANTIAL PERIOD OF TIME, AND THUS TO AMELIORATE
THE HARDSHIP OF TAXATION OF THE ENTIRE GAIN IN ONE YEAR."  COMMISSIONER
V. GILLETTE MOTOR CO., 364 U.S. 130, 134.  IT WAS TO "RELIEVE THE
TAXPAYER FROM  ...  EXCESSIVE TAX BURDENS ON GAINS RESULTING FROM A
CONVERSION OF CAPITAL INVESTMENTS" THAT CAPITAL GAINS WERE TAXED
DIFFERENTLY BY CONGRESS.  BURNET V. HARMEL, 287 U.S. 103, 106;
COMMISSIONER V. P.G. LAKE, INC., 356 U.S. 260, 265. 

AS OF JANUARY 31, 1953, THE ADJUSTED NET WORTH OF CLAY BROWN &
COMPANY AS REVEALED BY ITS BOOKS WAS $619,457.63.  THIS FIGURE INCLUDED
ACCUMULATED EARNINGS OF $448,471.63, PAID IN SURPLUS, CAPITAL STOCK AND
NOTES PAYABLE TO THE BROWN FAMILY.  THE APPRAISED VALUE AS OF THAT
DATE, HOWEVER, RELIED UPON BY THE INSTITUTE AND THE SELLERS, WAS
$1,064,877, WITHOUT FIGURING INTEREST ON DEFERRED BALANCES.  UNDER A
DEFERRED PAYMENT PLAN WITH A 6% INTEREST FIGURE, THE SALE VALUE WAS
PLACED AT $1,301,989.  THE TAX COURT FOUND THE SALE PRICE AGREED UPON
WAS ARRIVED AT IN AN ARM'S-LENGTH TRANSACTION, WAS THE RESULT OF REAL
NEGOTIATING AND WAS "WITHIN A REASONABLE RANGE IN LIGHT OF THE EARNINGS
HISTORY OF THE CORPORATION AND THE ADJUSTED NET WORTH OF THE CORPORATE
ASSETS."  37 T.C. 461, 486. 

OBVIOUSLY, ON THESE FACTS, THERE HAD BEEN AN APPRECIATION IN VALUE
ACCRUING OVER A PERIOD OF YEARS, COMMISSIONER V. GILLETTE MOTOR CO.,
SUPRA, AND AN "INCREASE IN THE VALUE OF THE INCOME-PRODUCING
PROPERTY."  COMMISSIONER V. P.G. LAKE, INC., SUPRA, AT 266.  THIS
INCREASE TAXPAYERS WERE ENTITLED TO REALIZE AT CAPITAL GAINS RATES ON A
CASH SALE OF THEIR STOCK; AND LIKEWISE IF THEY SOLD ON A DEFERRED
PAYMENT PLAN TAKING AN INSTALLMENT NOTE AND A MORTGAGE AS SECURITY. 
FURTHER, IF THE DOWN PAYMENT WAS LESS THAN 30% (THE 1954 CODE REQUIRES
NO DOWN PAYMENT AT ALL) AND THE TRANSACTION OTHERWISE SATISFIED I.R.C.
1939, SEC. 44, THE GAIN ITSELF COULD BE REPORTED ON THE INSTALLMENT
BASIS.    IN THE ACTUAL TRANSACTION, THE STOCK WAS TRANSFERRED FOR A
PRICE PAYABLE ON THE INSTALLMENT BASIS BUT PAYABLE FROM THE EARNINGS OF
THE COMPANY.  EVENTUALLY $936,131.85 WAS REALIZED BY RESPONDENTS.  THIS
TRANSACTION, WE THINK, IS A SALE, AND SO TREATING IT IS WHOLLY
CONSISTENT WITH THE PURPOSES OF THE CODE TO ALLOW CAPITAL GAINS
TREATMENT FOR REALIZATION UPON THE ENHANCED VALUE OF A CAPITAL ASSET. 

THE COMMISSIONER, HOWEVER, EMBELLISHES HIS RISK-SHIFTING ARGUMENT. 
PURPORTING TO PROBE THE ECONOMIC REALITIES OF THE TRANSACTION, HE
REASONS THE IF THE SELLER CONTINUES TO BEAR ALL THE RISK AND THE BUYER
NONE, THE SELLER MUST BE COLLECTING A PRICE FOR HIS RISK-BEARING IN THE
FORM OF AN INTEREST IN FUTURE EARNINGS OVER AND ABOVE WHAT WOULD BE A
FAIR MARKET VALUE OF THE PROPERTY.  SINCE THE SELLER BEARS THE RISK,
THE SO-CALLED PURCHASE PRICE MUST BE EXCESSIVE AND MUST BE SIMPLY A
DEVICE TO COLLECT FUTURE EARNINGS AT CAPITAL GAINS RATES. 

WE WOULD HESITATE TO DISCOUNT UNDULY THE POWER OF PURE REASON AND THE
ARGUMENT IS NOT WITHOUT FORCE.  BUT IT DOES PRESENT DIFFICULTIES.  IN
THE FIRST PLACE, IT DENIES WHAT THE TAX COURT EXPRESSLY FOUND - THAT
THE PRICE PAID WAS WITHIN REASONABLE LIMITS BASED ON THE EARNINGS AND
NET WORTH OF THE COMPANY; AND THERE IS EVIDENCE IN THE RECORD TO
SUPPORT THIS FINDING.  WE DO NOT HAVE, THEREFORE, A CASE WHERE THE
PRICE HAS BEEN FOUND EXCESSIVE. 

SECONDLY, IF AN EXCESSIVE PRICE IS SUCH AN INEVITABLE RESULT OF THE
LACK OF RISK-SHIFTING, IT WOULD SEEM THAT IT WOULD NOT BE AN IMPOSSIBLE
TASK FOR THE COMMISSIONER TO DEMONSTRATE THE FACT.  HOWEVER, IN THIS
CASE HE OFFERED NO EVIDENCE WHATSOEVER TO THIS EFFECT; AND IN A GOOD
MANY OTHER CASES INVOLVING SIMILAR TRANSACTIONS, IN SOME OF WHICH THE
REASONABLENESS OF THE PRICE PAID BY A CHARITY WAS ACTUALLY CONTESTED,
THE TAX COURT HAS FOUND THE SALE PRICE TO BE WITHIN REASONABLE LIMITS,
AS IT DID IN THIS CASE.  (FN7) 

THIRDLY, THE COMMISSIONER IGNORES AS WELL THE FACT THAT IF THE RENTS
PAYABLE BY FORTUNA WERE DEDUCTIBLE BY IT AND NOT TAXABLE TO THE
INSTITUTE, THE INSTITUTE COULD PAY OFF THE PURCHASE PRICE AT A
CONSIDERABLY FASTER RATE THAN THE ORDINARY CORPORATE BUYER SUBJECT TO
INCOME TAXES, A MATTER OF CONSIDERABLE IMPORTANCE TO A SELLER WHO WANTS
THE BALANCE OF HIS PURCHASE PRICE PAID AS RAPIDLY AS HE CAN GET IT.
THE FACT IS THAT BY APRIL 30, 1955, A LITTLE OVER TWO YEARS AFTER
CLOSING THIS TRANSACTION, $412,595.77 HAD BEEN PAID ON THE NOTE AND
WITHIN ANOTHER YEAR THE SELLERS HAD COLLECTED ANOTHER $238,498.80, FOR
A TOTAL OF $651,094.57. 

FURTHERMORE, RISK-SHIFTING OF THE KIND INSISTED ON BY THE
COMMISSIONER HAS NOT HERETOFORE BEEN CONSIDERED AN ESSENTIAL INGREDIENT
OF A SALE FOR TAX PURPOSES.  IN LETULLE V. SCOFIELD, 308 U.S. 415, ONE
CORPORATION TRANSFERRED PROPERTIES TO ANOTHER FOR CASH AND BONDS
SECURED BY THE PROPERTIES TRANSFERRED.  THE COURT HELD THAT THERE WAS
"A SALE OR EXCHANGE UPON WHICH GAIN OR LOSS MUST BE RECKONED IN
ACCORDANCE WITH THE PROVISIONS OF THE REVENUE ACT DEALING WITH THE
RECOGNITION OF GAIN OR LOSS UPON A SALE OR EXCHANGE," ID., AT 421,
SINCE THE SELLER RETAINED ONLY A CREDITOR'S INTEREST RATHER THAN A
PROPRIETARY ONE.  "THAT THE BONDS WERE SECURED SOLELY BY THE ASSETS
TRANSFERRED AND THAT, UPON DEFAULT, THE BONDHOLDER WOULD RETAKE ONLY
THE PROPERTY SOLD, DID NOT CHANGE HIS STATUS FROM THAT OF A CREDITOR TO
ONE HAVING A PROPRIETARY STAKE."  IBID.  COMPARE MARR V. UNITED STATES,
268 U.S. 536.  TO REQUIRE A SALE FOR TAX PURPOSES TO BE TO A
FINANCIALLY RESPONSIBLE BUYER WHO UNDERTAKES TO PAY THE PURCHASE PRICE
FROM SOURCES OTHER THAN THE EARNINGS OF THE ASSETS SOLD OR TO MAKE A
SUBSTANTIAL DOWN PAYMENT SEEMS TO US AT ODDS WITH COMMERCIAL PRACTICE
AND COMMON UNDERSTANDING OF WHAT CONSTITUTES A SALE.  THE TERM "SALE"
IS USED A GREAT MANY TIMES IN THE INTERNAL REVENUE CODE AND A WIDE
VARIETY OF TAX RESULTS HINGE ON THE OCCURRENCE OF A "SALE."  TO ACCEPT
THE COMMISSIONER'S DEFINITION OF SALE WOULD HAVE WIDE RAMIFICATIONS
WHICH WE ARE NOT PREPARED TO VISIT UPON TAXPAYERS, ABSENT CONGRESSIONAL
GUIDANCE IN THIS DIRECTION. 

THE COMMISSIONER RELIES HEAVILY UPON THE CASES INVOLVING A TRANSFER
OF MINERAL INTERESTS, THE TRANSFEROR RECEIVING A BONUS AND RETAINING A
ROYALTY OR OTHER INTEREST IN THE MINERAL PRODUCTION.  BURNET V. HARMEL,
287 U.S. 103; PALMER V. BENDER, 287 U.S. 551; THOMAS V. PERKINS, 301
U.S. 655; KIRBY PETROLEUM CO. V. COMMISSIONER, 326 U.S. 599; BURTON
SUTTON OIL CO. V. COMMISSIONER, 328 U.S. 25; COMMISSIONER V. SOUTHWEST
EXPLORATION CO., 350 U.S. 308.  THOMAS V. PERKINS IS DEEMED
PARTICULARLY PERTINENT.  THERE A LEASEHOLD INTEREST WAS TRANSFERRED FOR
A SUM CERTAIN PAYABLE IN OIL AS PRODUCED, AND IT WAS HELD THAT THE
AMOUNTS PAID TO THE TRANSFEROR WERE NOT INCLUDABLE IN THE INCOME OF THE
TRANSFEREE BUT WERE INCOME OF THE TRANSFEROR.  WE DO NOT, HOWEVER, DEEM
EITHER THOMAS V. PERKINS OR THE OTHER CASES CONTROLLING. 

FIRST, "CONGRESS  ...  HAS RECOGNIZED THE PECULIAR CHARACTER OF THE
BUSINESS OF EXTRACTING NATURAL RESOURCES," BURTON-SUTTON OIL CO. V.
COMMISSIONER, 328 U.S. 25, 33; SEE STRATTON'S INDEPENDENCE, LTD. V.
HOWBERT, 231 U.S. 399, 413-414, WHICH IS VIEWED AS AN INCOME-PRODUCING
OPERATION AND NOT AS A CONVERSION OF CAPITAL INVESTMENT, ANDERSON V.
HELVERING, 310 U.S. 404, AT 407, BUT ONE WHICH HAS ITS OWN BUILT-IN
METHOD OF ALLOWING THROUGH DEPLETION "A TAX-FREE RETURN OF THE CAPITAL
CONSUMED IN THE PRODUCTION OF GROSS INCOME THROUGH SEVERANCE," ANDERSON
V. HELVERING, SUPRA, AT 408, WHICH IS INDEPENDENT OF COST AND DEPENDS
SOLELY ON PRODUCTION, BURTON-SUTTON, AT 34.  PERCENTAGE DEPLETION
ALLOWS AN ARBITRARY DEDUCTION TO COMPENSATE FOR EXHAUSTION OF THE
ASSET, REGARDLESS OF COST INCURRED OR ANY INVESTMENT WHICH THE TAXPAYER
MAY HAVE MADE.  THE COMMISSIONER, HOWEVER, WOULD ASSESS TO RESPONDENTS
AS ORDINARY INCOME THE ENTIRE AMOUNT OF ALL RENTAL PAYMENTS MADE BY THE
INSTITUTE, REGARDLESS OF THE ACCUMULATED VALUES IN THE CORPORATION
WHICH THE PAYMENTS REFLECTED AND WITHOUT REGARD FOR THE PRESENT POLICY
OF THE TAX LAW TO ALLOW THE TAXPAYER TO REALIZE ON APPRECIATED VALUES
AT THE CAPITAL GAIN RATES. 

SECOND, THOMAS V. PERKINS DOES NOT HAVE UNLIMITED SWEEP.  THE COURT
IN ANDERSON V. HELVERING, SUPRA, POINTED OUT THAT IT WAS STILL POSSIBLE
FOR THE OWNER OF A WORKING INTEREST TO DIVEST HIMSELF FINALLY AND
COMPLETELY OF HIS MINERAL INTEREST BY EFFECTING A SALE.  IN THAT CASE
THE OWNER OF ROYALTY INTEREST, FEE INTEREST AND DEFERRED OIL PAYMENTS
CONTRACTED TO CONVEY THEM FOR $160,000 PAYABLE $50,000 DOWN AND THE
BALANCE FROM ONE-HALF THE PROCEEDS WHICH MIGHT BE DERIVED FROM THE OIL
AND GAS PRODUCED AND FROM THE SALE OF THE FEE TITLE TO ANY OF THE LANDS
CONVEYED.  THE COURT REFUSED TO EXTEND THOMAS V. PERKINS BEYOND THE OIL
PAYMENT TRANSACTION INVOLVED IN THAT CASE.  SINCE THE TRANSFEROR IN
ANDERSON HAD PROVIDED FOR PAYMENT OF THE PURCHASE PRICE FROM THE SALE
OF FEE INTEREST AS WELL AS FROM THE PRODUCTION OF OIL AND GAS, "THE
RESERVATION OF THIS ADDITIONAL TYPE OF SECURITY FOR THE DEFERRED
PAYMENTS SERVED TO DISTINGUISH THIS CASE FROM THOMAS V. PERKINS.  IT IS
SIMILAR TO THE RESERVATION IN A LEASE OF OIL PAYMENT RIGHTS TOGETHER
WITH A PERSONAL GUARANTEE BY THE LESSEE THAT SUCH PAYMENTS SHALL AT ALL
EVENTS EQUAL THE SPECIFIED SUM."  ANDERSON V. HELVERING, SUPRA, AT 412
413.  HENCE, THERE WAS HELD TO BE AN OUTRIGHT SALE OF THE PROPERTIES,
ALL OF THE OIL INCOME THEREFROM BEING TAXABLE TO THE TRANSFEREE
NOTWITHSTANDING THE FACT OF PAYMENT OF PART OF IT TO THE SELLER.  THE
RESPONDENTS IN THIS CASE, OF COURSE, NOT ONLY HAD RIGHTS AGAINST
INCOME, BUT IF THE INCOME FAILED TO AMOUNT TO $250,000 IN ANY TWO
CONSECUTIVE YEARS, THE ENTIRE AMOUNT COULD BE DECLARED DUE, WHICH WAS
SECURED BY A LIEN ON THE REAL AND PERSONAL PROPERTIES OF THE COMPANY. 
(FN8)

THERE IS ANOTHER REASON FOR US NOT TO DISTURB THE RULING OF THE TAX
COURT AND THE COURT OF APPEALS.  IN 1963, THE TREASURY DEPARTMENT, IN
THE COURSE OF HEARINGS BEFORE THE CONGRESS, NOTED THE AVAILABILITY OF
CAPITAL GAINS TREATMENT ON THE SALE OF CAPITAL ASSETS EVEN THOUGH THE
SELLER RETAINED AN INTEREST IN THE INCOME PRODUCED BY THE ASSETS.  THE
DEPARTMENT PROPOSED A CHANGE IN THE LAW WHICH WOULD HAVE TAXED AS
ORDINARY INCOME THE PAYMENTS ON THE SALE OF A CAPITAL ASSET WHICH WERE
DEFERRED OVER MORE THAN FIVE YEARS AND WERE CONTINGENT ON FUTURE
INCOME.  PAYMENTS, THOUGH CONTINGENT ON INCOME, REQUIRED TO BE MADE
WITHIN FIVE YEARS WOULD NOT HAVE LOST CAPITAL GAINS STATUS NOR WOULD
PAYMENTS NOT CONTINGENT ON INCOME EVEN THOUGH ACCOMPANIED BY PAYMENTS
WHICH WERE.  HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS,
88TH CONG., 1ST SESS., FEB. 6, 7, 8 AND 18, 1963, PT. I (REV.), ON THE
PRESIDENT'S 1963 TAX MESSAGE, PP. 154-156. 

CONGRESS DID NOT ADOPT THE SUGGESTED CHANGE (FN9) BUT IT IS
SIGNIFICANT FOR OUR PURPOSES THAT THE PROPOSED AMENDMENT DID NOT DENY
THE FACT OR OCCURRENCE OF A SALE BUT WOULD HAVE TAXED AS ORDINARY
INCOME THOSE INCOME-CONTINGENT PAYMENTS DEFERRED FOR MORE THAN FIVE
YEARS.  IF A PURCHASER COULD PAY THE PURCHASE PRICE OUT OF EARNINGS
WITHIN FIVE YEARS, THE SELLER WOULD HAVE CAPITAL GAIN RATHER THAN
ORDINARY INCOME.  THE APPROACH WAS CONSISTENT WITH ALLOWING APPRECIATED
VALUES TO BE TREATED AS CAPITAL GAIN BUT WITH APPROPRIATE SAFEGUARDS
AGAINST RESERVING ADDITIONAL RIGHTS TO FUTURE INCOME.  IN COMPARISON,
THE COMMISSIONER'S POSITION HERE IS A CLEAR CASE OF "OVERKILL" IF AIMED
AT PREVENTING THE THE INVOLVEMENT OF TAX-EXEMPT ENTITIES IN THE
PURCHASE AND OPERATION OF BUSINESS ENTERPRISES.  THERE ARE MORE PRECISE
APPROACHES TO THIS PROBLEM AS WELL AS TO THE QUESTION OF THE POSSIBLY
EXCESSIVE PRICE PAID BY THE CHARITY OR FOUNDATION.  AND IF THE
COMMISSIONER'S APPROACH IS INTENDED AS A LIMITATION UPON THE TAX
TREATMENT OF SALES GENERALLY, IT REPRESENTS A CONSIDERABLE INVASION OF
CURRENT CAPITAL GAINS POLICY, A MATTER WHICH WE THINK IS THE BUSINESS
OF CONGRESS, NOT OURS. 

THE PROBLEMS INVOLVED IN THE PURCHASE OF A GOING BUSINESS BY A TAX
EXEMPT ORGANIZATION HAVE BEEN CONSIDERED AND DEALT WITH BY THE
CONGRESS.  LIKEWISE, IT HAS GIVEN ITS ATTENTION TO VARIOUS KINDS OF
TRANSACTIONS INVOLVING THE PAYMENT OF THE AGREED PURCHASE PRICE FOR
PROPERTY FROM THE FUTURE EARNINGS OF THE PROPERTY ITSELF.  IN BOTH
SITUATIONS IT HAS RESPONDED, IF AT ALL, WITH PRECISE PROVISIONS OF
NARROW APPLICATION.  WE CONSEQUENTLY DEEM IT WISE TO "LEAVE TO THE
CONGRESS THE FASHIONING OF A RULE WHICH, IN ANY EVENT, MUST HAVE WIDE
RAMIFICATIONS."  AMERICAN AUTOMOBILE ASSN. V. UNITED STATES, 367 U.S.
687, 697.  AFFIRMED. 

FN1  THE REVENUE ACT OF 1950, C. 994, 64 STAT. 906, AMENDED SEC. 101
OF THE INTERNAL REVENUE CODE OF 1939 AND ADDED SECS. 421 THROUGH 424,
3813 AND 3814.  THESE SECTIONS ARE NOW SECS. 501 THROUGH 504 AND 511
THROUGH 515 OF THE INTERNAL REVENUE CODE OF 1954. 

FN2  THE SALE AND LEASEBACK TRANSACTION HAS BEEN MUCH EXAMINED. 
LANNING, TAX EROSION AND THE "BOOTSTRAP SALE" OF A BUSINESS - I, 108 U.
PA. L. REV. 623 (1960); MOORE AND DOHAN, SALES, CHURCHES, AND
MONKEYSHINES, 11 TAX L. REV. 87 (1956); MACCRACKEN, SELLING A BUSINESS
TO A CHARITABLE FOUNDATION, 1954 U.S. CAL. TAX INST.  205; COMMENT, THE
THREE-PARTY SALE AND LEASE-BACK, 61 MICH. L. REV. 1140 (1963);
ALEXANDER, THE USE OF FOUNDATIONS IN BUSINESS, 15 N.Y.U. TAX INST.  591
(1957); NEW DEVELOPMENTS IN TAX-EXEMPT INSTITUTIONS, 19 J. TAXATION 302
(1963).  SEE ALSO STERN, THE GREAT TREASURY RAID, P. 245 (1964). 

FN3  UNION BANK V. UNITED STATES, 152 CT. CL. 426, 285 F.2D 126;
COMMISSIONER V. JOHNSON, 267 F.2D 382, AFF'G ESTATE OF HOWES V.
COMMISSIONER, 30 T.C. 909; KOLKEY V. COMMISSIONER, 254 F.2D 51; KNAPP
BROS. SHOE MFG. CORP. V. UNITED STATES, 135 CT. CL. 797, 142 F. SUPP.
899; OSCAR C. STAHL, P-H 1963 TC MEM. DEC. PARA. 63,201; ISIS WINDOWS,
INC., P-H 1963 TC MEM. DEC. PARA. 63,176; RALPH M. SINGER, P-H 1963 TC
MEM. DEC. PARA. 63,158; BREKKE V. COMMISSIONER, 40 T.C. 789; ROYAL
FARMS DAIRY CO. V. COMMISSIONER, 40 T.C. 172; ANDERSON DAIRY, INC. V.
COMMISSIONER, 39 T.C. 1027; ESTATE OF HAWTHORNE, P-H 1960 TC MEM. DEC.
PARA. 60,146; ESTATE OF HAWLEY, P-H 1961 TC MEM. DEC. PARA. 61,038;
OHIO FURNACE CO. V. COMMISSIONER, 25 T.C. 179; TRUSCHEL V.
COMMISSIONER, 29 T.C. 433.  SOME OF THESE CASES ARE NOW PENDING ON
APPEAL IN ONE OR MORE OF THE COURTS OF APPEALS. 

FN4  THE NET CURRENT ASSETS SUBJECT TO LIABILITIES WERE SOLD BY THE
INSTITUTE TO FORTUNA FOR A PROMISSORY NOTE WHICH WAS ASSIGNED TO
SELLERS.  THE LEASE COVERED THE REMAINING ASSETS OF CLAY BROWN &
COMPANY.  FORTUNA WAS CAPITALIZED AT $25,000, ITS CAPITAL BEING PAID IN
BY ITS STOCKHOLDERS FROM THEIR OWN FUNDS. 

FN5  CLAY BROWN'S PERSONAL LIABILITY FOR SOME OF THE INDEBTEDNESS OF
CLAY BROWN & COMPANY, ASSUMED BY FORTUNA, WAS CONTINUED.  HE ALSO
PERSONALLY GUARANTEED SOME ADDITIONAL INDEBTEDNESS INCURRED BY
FORTUNA. 

FN6  THE TAX COURT FOUND NOTHING TO INDICATE THAT THE ARRANGEMENT
BETWEEN THE STOCKHOLDERS AND THE INSTITUTE CONTEMPLATED THE BROWN
FAMILY'S BEING FREE AT ANY TIME TO TAKE BACK AND OPERATE THE BUSINESS. 

FN7  IN ALL BUT FOUR OF THE CASES LISTED IN NOTE 3, SUPRA, THERE WAS
A FINDING THAT THE PRICE WAS WITHIN PERMISSIBLE LIMITS.  THE EXCEPTIONS
ARE:  KOLKEY V. COMMISSIONER, WHERE THE PRICE WAS CONSIDERED GROSSLY
EXCESSIVE AND THE TRANSACTION A SHAM; UNION BANK V. UNITED STATES, IN
WHICH THE COURT OF CLAIMS REFERRED TO THE EVIDENCE OF EXCESSIVE PRICE
BUT NEVERTHELESS HELD A SALE HAD TAKEN PLACE; BREKKE V. COMMISSIONER,
WHERE THE SELLER WAS NOT BEFORE THE COURT, THE PRICE WAS SAID TO BE
TWICE THE FAIR MARKET VALUE AND THE ISSUE WAS THE DEDUCTIBILITY OF THE
RENT PAID BY THE OPERATING COMPANY TO THE EXEMPT ORGANIZATION; AND
ESTATE OF HAWLEY, IN WHICH THERE WAS NO EXPRESS TREATMENT OF THE SALE
PRICE, BUT THE TRANSACTION WAS FOUND TO BE A BONA FIDE SALE.    FN8
RESPONDENTS PLACE CONSIDERABLE RELIANCE ON THE RULE APPLICABLE WHERE
PATENTS ARE SOLD OR ASSIGNED, THE SELLER OR ASSIGNOR RESERVING AN
INCOME INTEREST.  IN REV. RUL.  58-353, 1958-2 CUM. BULL.  408, THE
SERVICE ANNOUNCED ITS ACQUIESCENCE IN VARIOUS TAX COURT CASES HOLDING
THAT THE CONSIDERATION RECIEVED BY THE OWNER OF A PATENT FOR THE
ASSIGNMENT OF A PATENT OR THE GRANTING OF AN EXCLUSIVE LICENSE TO SUCH
PATENT MAY BE TREATED AS THE PROCEEDS OF A SALE OF PROPERTY FOR INCOME
TAX PURPOSES, EVEN THOUGH THE CONSIDERATION RECEIVED BY THE TRANSFEROR
IS MEASURED BY PRODUCTION, USE, OR SALE OF THE PATENTED ARTICLE.  THE
GOVERNMENT NOW SAYS THAT THE REVENUE RULING AMOUNTS ONLY TO A DECISION
TO CEASE LITIGATING THE QUESTION, AT LEAST TEMPORARILY, AND THAT THE
CASES ON WHICH THE RULE IS BASED ARE WRONG IN PRINCIPLE AND
INCONSISTENT WITH THE CASES DEALING WITH THE TAXATION OF MINERAL
INTERESTS.  WE NOTE, HOWEVER, THAT IN REV. RUL. 60-226, 1960-1 CUM.
BULL.  26, THE SERVICE EXTENDED THE SAME TREATMENT TO THE COPYRIGHT
FIELD.  FURTHERMORE, THE SECRETARY OF THE TREASURY IN 1963 RECOGNIZED
THE PRESENT LAW TO BE THAT "THE SALE OF A PATENT BY THE INVENTOR MAY BE
TREATED AS THE SALE OF A CAPITAL ASSET," HEARINGS BEFORE THE HOUSE
COMMITTEE ON WAYS AND MEANS, 88TH CONG., 1ST SESS., FEB. 6, 7, 8 AND
18, 1963, PT. I (REV.), ON THE PRESIDENT'S 1963 TAX MESSAGE, P. 150,
AND THE CONGRESS FAILED TO ENACT THE CHANGES IN THE LAW WHICH THE
DEPARTMENT RECOMMENDED. 

THESE DEVELOPMENTS IN THE PATENT FIELD OBVIOUSLY DO NOT HELP THE
POSITION OF THE COMMISSIONER.  NOR DOES I.R.C. 1954, SEC. 1235, WHICH
EXPRESSLY PERMITS SPECIFIED PATENT SALES TO BE TREATED AS SALES OF
CAPITAL ASSETS ENTITLED TO CAPITAL GAINS TREATMENT.  WE NEED NOT,
HOWEVER, DECIDE HERE WHETHER THE EXTRACTION AND PATENT CASES ARE
IRRECONCILABLE OR WHETHER, INSTEAD, EACH SITUATION HAS ITS OWN PECULIAR
CHARACTERISTICS JUSTIFYING DISCRETE TREATMENT UNDER THE SALE AND
EXCHANGE LANGUAGE OF SEC. 1222.  WHETHER THE PATENT CASES ARE CORRECT
OR NOT, ABSENT SEC. 1235, THE FACT REMAINS THAT THIS CASE INVOLVES THE
TRANSFER OF CORPORATE STOCK WHICH HAS SUBSTANTIALLY APPRECIATED IN
VALUE AND A PURCHASE PRICE PAYABLE FROM INCOME WHICH HAS BEEN HELD TO
REFLECT THE FAIR MARKET VALUE OF THE ASSETS WHICH THE STOCK
REPRESENTS. 

FN9  IT DID, HOWEVER, ACCEPT AND ENACT ANOTHER SUGGESTION MADE BY THE
TREASURY DEPARTMENT.  SECTION 483, WHICH WAS ADDED TO THE CODE,
PROVIDED FOR TREATING A PART OF THE PURCHASE PRICE AS INTEREST IN
INSTALLMENT SALES TRANSACTIONS WHERE NO INTEREST WAS SPECIFIED.  THE
PROVISION WAS TO APPLY AS WELL WHEN THE PAYMENTS PROVIDED FOR WERE
INDEFINITE AS TO THEIR SIZE, AS FOR EXAMPLE "WHERE THE PAYMENTS ARE IN
PART AT LEAST DEPENDENT UPON FUTURE INCOME DERIVED FROM THE PROPERTY." 
S. REP. NO. 830, 88TH CONG., 2D SESS., P. 103.  THIS SECTION WOULD
APPARENTLY NOW APPLY TO A TRANSACTION SUCH AS OCCURRED IN THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

WERE IT NOT FOR THE TAX LAWS, THE RESPONDENTS' TRANSACTION WITH THE
INSTITUTE WOULD MAKE NO SENSE, EXCEPT AS ONE ARISING FROM A CHARITABLE
IMPULSE.  HOWEVER THE TAX LAWS EXIST AS AN ECONOMIC REALITY IN THE
BUSINESSMAN'S WORLD, MUCH LIKE THE EXISTENCE OF A COMPETITOR. 
BUSINESSMEN PLAN THEIR AFFAIRS AROUND BOTH, AND A TAX DOLLAR IS JUST AS
REAL AS ONE DERIVED FROM ANY OTHER SOURCE.  THE CODE GIVES THE
INSTITUTE A TAX EXEMPTION WHICH MAKES IT CAPABLE OF TAKING A GREATER
AFTER-TAX RETURN FROM A BUSINESS THAN COULD A NONTAX-EXEMPT INDIVIDUAL
OR CORPORATION.  RESPONDENTS TRADED A RESIDUAL INTEREST IN THEIR
BUSINESS FOR A FASTER PAYOUT APPARENTLY MADE POSSIBLE BY THE
INSTITUTE'S EXEMPTION.  THE RESPONDENTS GAVE SOMETHING UP; THEY
RECEIVED SOMETHING SUBSTANTIALLY DIFFERENT IN RETURN.  IF WORDS ARE TO
HAVE MEANING, THERE WAS A "SALE OR EXCHANGE." 

OBVIOUSLY THE INSTITUTE TRADED ON ITS TAX EXEMPTION.  THE GOVERNMENT
WOULD DENY THAT THERE WAS AN EXCHANGE, ESSENTIALLY ON THE THEORY THAT
THE INSTITUTE DID NOT PUT ANYTHING AT RISK; SINCE ITS EXEMPTION IS
UNLIMITED, LIKE THE MAGIC PURSE THAT ALWAYS CONTAINS ANOTHER PENNY, THE
INSTITUTE GAVE UP NOTHING BY TRADING ON IT. 

ONE MAY OBSERVE PRELIMINARILY THAT THE GOVERNMENT'S REMEDY FOR THE SO
CALLED "BOOTSTRAP" SALE - DEFINING SALE OR EXCHANGE SO AS TO REQUIRE
THE SHIFTING OF SOME BUSINESS RISKS - WOULD ACCOMPLISH LITTLE BY WAY OF
CLOSING OFF SUCH SALES IN THE FUTURE.  IT WOULD BE NEITHER DIFFICULT
NOR BURDENSOME FOR FUTURE USERS OF THE BOOTSTRAP TECHNIQUE TO ARRANGE
FOR SOME SHIFT OF RISKS.  IF SUCH SALES ARE CONSIDERED A SERIOUS ABUSE,
INEFFECTIVE JUDICIAL CORRECTIVES WILL ONLY POSTPONE THE DAY WHEN
CONGRESS IS MOVED TO DEAL WITH THE PROBLEM COMPREHENSIVELY. 
FURTHERMORE, ONE MAY ASK WHY, IF THE GOVERNMENT DOES NOT LIKE THE TAX
CONSEQUENCES OF SUCH SALES, THE PROPER COURSE IS NOT TO ATTACK THE
EXEMPTION RATHER THAN TO DENY THE EXISTENCE OF A "REAL" SALE OR
EXCHANGE. 

THE FORCE UNDERLYING THE GOVERNMENT'S POSITION IS THAT THE
RESPONDENTS DID CLEARLY RETAIN SOME RISK-BEARING INTEREST IN THE
BUSINESS.  INSTEAD OF LEAPING FROM THIS PREMISE TO THE CONCLUSION THAT
THERE WAS NO SALE OR EXCHANGE, THE GOVERNMENT MIGHT MORE PROFITABLY
HAVE BROKEN THE TRANSACTION INTO COMPONENTS AND ATTEMPTED TO
DISTINGUISH BETWEEN THE INTEREST WHICH RESPONDENTS RETAINED AND THE
INTEREST WHICH THEY EXCHANGED.  THE WORTH OF A BUSINESS DEPENDS UPON
ITS ABILITY TO PRODUCE INCOME OVER TIME.  WHAT RESPONDENTS GAVE UP WAS
NOT THE ENTIRE BUSINESS, BUT ONLY THEIR INTEREST IN THE BUSINESS'
ABILITY TO PRODUCE INCOME IN EXCESS OF THAT WHICH WAS NECESSARY TO PAY
THEM OFF UNDER THE TERMS OF THE TRANSACTION.  THE VALUE OF SUCH A
RESIDUAL INTEREST IS A FUNCTION OF THE RISK ELEMENT OF THE BUSINESS AND
THE AMOUNT OF INCOME IT IS CAPABLE OF PRODUCING PER YEAR, AND WILL
NECESSARILY BE SUBSTANTIALLY LESS THAN THE VALUE OF THE TOTAL
BUSINESS.  HAD THE GOVERNMENT ARGUED THAT IT WAS THAT INTEREST WHICH
RESPONDENTS EXCHANGED, AND ONLY TO THAT EXTENT SHOULD THEY HAVE
RECEIVED CAPITAL GAINS TREATMENT, WE WOULD PERHAPS HAVE HAD A DIFFERENT
CASE. 

I MEAN NEITHER TO ACCEPT NOR REJECT THIS APPROACH, OR ANY OTHER WHICH
FALLS SHORT OF THE ALL-OR-NOTHING THEORY SPECIFICALLY ARGUED BY THE
PETITIONER, SPECIFICALLY OPPOSED BY THE RESPONDENTS, AND ACCEPTED BY
THE COURT AS THE PREMISE FOR ITS DECISION.  ON A HIGHLY COMPLEX ISSUE
WITH AS WIDE RAMIFICATIONS AS THE ONE BEFORE US, IT IS VITALLY
IMPORTANT TO HAVE HAD THE ILLUMINATION PROVIDED BY BRIEFING AND
ARGUMENT DIRECTLY ON POINT BEFORE ANY PARTICULAR PATH IS IRREVOCABLY
TAKEN.  WHERE THE DEFINITION OF "SALE OR EXCHANGE" IS CONCERNED, THE
COURT CAN AFFORD TO PROCEED SLOWLY AND BY STAGES.  THE ILLUMINATION
WHICH HAS BEEN PROVIDED IN THE PRESENT CASE CONVINCES ME THAT THE
POSITION TAKEN BY THE GOVERNMENT IS UNSOUND AND DOES NOT WARRANT
REVERSAL OF THE JUDGMENT BELOW.  THEREFORE I CONCUR IN THE JUDGMENT TO
AFFIRM. 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK JOIN, DISSENTING. 

THE ESSENTIAL FACTS OF THIS CASE WHICH ARE UNDISPUTED ILLUMINATE THE
BASIC NATURE OF THE TRANSACTION AT ISSUE.  RESPONDENTS CONVEYED THEIR
STOCK IN CLAY BROWN & CO., A CORPORATION OWNED ALMOST ENTIRELY BY CLAY
BROWN AND THE MEMBERS OF HIS IMMEDIATE FAMILY, TO THE CALIFORNIA
INSTITUTE FOR CANCER RESEARCH, A TAX-EXEMPT FOUNDATION.  THE INSTITUTE
LIQUIDATED THE CORPORATION AND TRANSFERRED ITS ASSETS UNDER A FIVE-YEAR
LEASE TO A NEW CORPORATION, FORTUNA, WHICH WAS MANAGED BY RESPONDENT
CLAY BROWN, AND THE SHARES OF WHICH WERE IN THE NAME OF CLAY BROWN'S
ATTORNEYS, WHO ALSO SERVED AS FORTUNA'S DIRECTORS.  THE BUSINESS THUS
CONTINUED UNDER A NEW NAME WITH NO ESSENTIAL CHANGE IN CONTROL OF ITS
OPERATIONS.  FORTUNA AGREED TO PAY 80% OF ITS PRETAX PROFITS TO THE
INSTITUTE AS RENT UNDER THE LEASE, AND THE INSTITUTE AGREED TO PAY 90%
OF THIS AMOUNT TO RESPONDENTS IN PAYMENT FOR THEIR SHARES UNTIL THE
RESPONDENTS RECEIVED $1,300,000, AT WHICH TIME THEIR INTEREST WOULD
TERMINATE AND THE INSTITUTE WOULD OWN THE COMPLETE BENEFICIAL INTEREST
AS WELL AS ALL LEGAL INTEREST IN THE BUSINESS.  IF REMITTANCES TO
RESPONDENTS WERE LESS THAN $250,000 IN ANY TWO CONSECUTIVE YEARS OR ANY
OTHER PROVISION IN THE AGREEMENTS WAS VIOLATED, THEY COULD RECOVER THE
PROPERTY.  THE INSTITUTE HAD NO PERSONAL LIABILITY.  IN ESSENCE
RESPONDENTS CONVEYED THEIR INTEREST IN THE BUSINESS TO THE INSTITUTE IN
RETURN FOR 72% OF THE PROFITS OF THE BUSINESS AND THE RIGHT TO RECOVER
THE BUSINESS ASSETS IF PAYMENTS FELL BEHIND SCHEDULE. 

AT FIRST GLANCE IT MIGHT APPEAR ODD THAT THE SELLERS WOULD ENTER INTO
THIS TRANSACTION, FOR PRIOR TO THE SALE THEY HAD A RIGHT TO 100% OF THE
CORPORATION'S INCOME, BUT AFTER THE SALE THEY HAD A RIGHT TO ONLY 72%
OF THAT INCOME AND WOULD LOSE THE BUSINESS AFTER 10 YEARS TO BOOT. 
THIS TRANSACTION, HOWEVER, AFFORDED THE SELLERS SEVERAL ADVANTAGES. 
THE PRINCIPAL ADVANTAGE SOUGHT BY THE SELLERS WAS CAPITAL GAIN, RATHER
THAN ORDINARY INCOME, TREATMENT FOR THAT SHARE OF THE BUSINESS PROFITS
WHICH THEY RECEIVED.  FURTHER, BECAUSE OF THE TAX CODE'S CHARITABLE
EXEMPTION (FN1) AND THE LEASE ARRANGEMENT WITH FORTUNA, (FN2) THE
INSTITUTE BELIEVED THAT NEITHER IT NOR FORTUNA WOULD HAVE TO PAY INCOME
TAX ON THE EARNINGS OF THE BUSINESS.  THUS THE SELLERS WOULD RECEIVE
FREE OF CORPORATE TAXATION, AND SUBJECT ONLY TO PERSONAL TAXATION AT
CAPITAL GAINS RATES, 72% OF THE BUSINESS EARNINGS UNTIL THEY WERE PAID
$1,300,000.  WITHOUT THE SALE THEY WOULD RECEIVE ONLY 48% OF THE
BUSINESS EARNINGS, THE REST GOING TO THE GOVERNMENT IN CORPORATE TAXES,
AND THIS 48% WOULD BE SUBJECT TO PERSONAL TAXATION AT ORDINARY RATES. 
IN EFFECT THE INSTITUTE SOLD THE RESPONDENTS THE USE OF ITS TAX
EXEMPTION, ENABLING THE RESPONDENTS TO COLLECT $1,300,000 FROM THE
BUSINESS MORE QUICKLY THAN THEY OTHERWISE COULD AND TO PAY TAXES ON
THIS AMOUNT AT CAPITAL GAINS RATES.  IN RETURN, THE INSTITUTE RECEIVED
A NOMINAL AMOUNT OF THE PROFITS WHILE THE $1,300,000 WAS BEING PAID,
AND IT WAS TO RECEIVE THE WHOLE BUSINESS AFTER THIS DEBT HAD BEEN PAID
OFF.  IN ANY REALISTIC SENSE THE GOVERNMENT'S GRANT OF A TAX EXEMPTION
WAS USED BY THE INSTITUTE AS PART OF AN ARRANGEMENT THAT ALLOWED IT TO
BUY A BUSINESS THAT IN FACT COST IT NOTHING.  I CANNOT BELIEVE THAT
CONGRESS INTENDED SUCH A RESULT. 

THE COURT TODAY LEGITIMATES THIS BOOTSTRAP TRANSACTION AND PERMITS
RESPONDENTS THE TAX ADVANTAGE WHICH THE PARTIES SOUGHT.  THE FACT THAT
RESPONDENT BROWN, AS A RESULT OF THE COURT'S HOLDING, ESCAPES PAYMENT
OF ABOUT $60,000 IN TAXES MAY NOT SEEM INTRINSICALLY IMPORTANT -
ALTHOUGH EVERY FAILURE TO PAY THE PROPER AMOUNT OF TAXES UNDER A
PROGRESSIVE INCOME TAX SYSTEM IMPAIRS THE INTEGRITY OF THAT SYSTEM. 
BUT THIS CASE IN FACT HAS VERY BROAD IMPLICATIONS.  WE ARE TOLD BY THE
PARTIES AND BY INTERESTED AMICI THAT THIS IS A TEST CASE.  THE OUTCOME
OF THIS CASE WILL DETERMINE WHETHER THIS BOOTSTRAP SCHEME FOR THE
CONVERSION OF ORDINARY INCOME INTO CAPITAL GAIN, WHICH HAS ALREADY BEEN
EMPLOYED ON A NUMBER OF OCCASIONS, WILL BECOME EVEN MORE WIDESPREAD. 
(FN3)  IT IS QUITE CLEAR THAT THE COURT'S DECISION APPROVING THIS TAX
DEVICE WILL GIVE ADDITIONAL MOMENTUM TO ITS SPEEDY PROLIFERATION.  IN
MY VIEW CONGRESS DID NOT SANCTION THE USE OF THIS SCHEME UNDER THE
PRESENT REVENUE LAWS TO OBTAIN THE TAX ADVANTAGES WHICH THE COURT
AUTHORIZES.  MOREOVER, I BELIEVE THAT THE COURT'S HOLDING NOT ONLY
DEVIATES FROM THE INTENT OF CONGRESS, BUT ALSO DEPARTS FROM THIS
COURT'S PRIOR DECISIONS. 

THE PURPOSE OF THE CAPITAL GAINS PROVISIONS OF THE INTERNAL REVENUE
CODE OF 1954, SEC.  1201 ET SEQ., IS TO PREVENT GAINS WHICH ACCRUE OVER
A LONG PERIOD OF TIME FROM BEING TAXED IN THE YEAR OF THEIR REALIZATION
THROUGH A SALE AT HIGH RATES RESULTING FROM THEIR INCLUSION IN THE
HIGHER TAX BRACKETS.  BURNET V. HARMEL, 287 U.S. 103, 106.  THESE
PROVISIONS ARE NOT DESIGNED, HOWEVER, TO ALLOW CAPITAL GAINS TREATMENT
FOR THE RECURRENT RECEIPT OF COMMERCIAL OR BUSINESS INCOME.  IN LIGHT
OF THESE PURPOSES THIS COURT HAS HELD THAT A "SALE" FOR CAPITAL GAINS
PURPOSES IS NOT PRODUCED BY THE MERE TRANSFER OF LEGAL TITLE.  BURNET
V. HARMEL, SUPRA; PALMER V. BENDER, 287 U.S. 551.  RATHER, AT THE VERY
LEAST, THERE MUST BE A MEANINGFUL ECONOMIC TRANSFER IN ADDITION TO A
CHANGE IN LEGAL TITLE.  SEE CORLISS V. BOWERS, 281 U.S. 376.  THUS THE
QUESTION POSED HERE IS NOT WHETHER THIS TRANSACTION CONSTITUTES A SALE
WITHIN THE TERMS OF THE UNIFORM COMMERCIAL CODE OR THE UNIFORM SALES
ACT - WE MAY ASSUME IT DOES - BUT, RATHER, THE QUESTION IS WHETHER, AT
THE TIME LEGAL TITLE WAS TRANSFERRED, THERE WAS ALSO AN ECONOMIC
TRANSFER SUFFICIENT TO CONVERT ORDINARY INCOME INTO CAPITAL GAIN BY
TREATING THIS TRANSACTION AS A "SALE" WITHIN THE TERMS OF I.R.C. SEC.
1222(3). 

IN DEALING WITH WHAT CONSTITUTES A SALE FOR CAPITAL GAINS PURPOSES,
THIS COURT HAS BEEN CAREFUL TO LOOK THROUGH FORMAL LEGAL ARRANGEMENTS
TO THE UNDERLYING ECONOMIC REALITIES.  INCOME PRODUCED IN THE MINERAL
EXTRACTION BUSINESS, WHICH "RESEMBLES A MANUFACTURING BUSINESS CARRIED
ON BY THE USE OF THE SOIL," BURNET V. HARMEL, SUPRA, AT 107, IS TAXED
TO THE PERSON WHO RETAINS AN ECONOMIC INTEREST IN THE OIL.  THUS, WHILE
AN OUTRIGHT SALE OF MINERAL INTERESTS QUALIFIES FOR CAPITAL GAINS
TREATMENT, A PURPORTED SALE OF MINERAL INTERESTS IN EXCHANGE FOR A
ROYALTY FROM THE MINERALS PRODUCED IS TREATED ONLY AS A TRANSFER WITH A
RETAINED ECONOMIC INTEREST, AND THE ROYALTY PAYMENTS ARE FULLY TAXABLE
AS ORDINARY INCOME.  BURNET V. HARMEL, SUPRA.  SEE PALMER V. BENDER,
SUPRA. 

IN THOMAS V. PERKINS, 301 U.S. 655, AN OWNER OF OIL INTERESTS
TRANSFERRED THEM IN RETURN FOR AN "OIL PRODUCTION PAYMENT," AN AMOUNT
WHICH IS PAYABLE ONLY OUT OF THE PROCEEDS OF LATER COMMERCIAL SALES OF
THE OIL TRANSFERRED.  THE COURT HELD THAT THIS TRANSFER, WHICH
CONSTITUTED A SALE UNDER STATE LAW, DID NOT CONSTITUTE A SALE FOR TAX
PURPOSES BECAUSE THERE WAS NOT A SUFFICIENT SHIFT OF ECONOMIC RISK. 
THE TRANSFEROR WOULD BE PAID ONLY IF OIL WAS LATER PRODUCED AND SOLD;
IF IT WAS NOT PRODUCED, HE WOULD NOT BE PAID.  THE RISKS RUN BY THE
TRANSFEROR OF MAKING OR LOSING MONEY FROM THE OIL WERE SHIFTED SO
SLIGHTLY BY THE TRANSFER THAT NO SEC. 1222(3) SALE EXISTED,
NOTWITHSTANDING THE FACT THAT THE TRANSACTION CONVEYED TITLE AS A
MATTER OF STATE LAW, AND ONCE THE PAYOUT WAS COMPLETE, FULL OWNERSHIP
OF THE MINERALS WAS TO VEST IN THE PURCHASER.    I BELIEVE THAT THE
SELLERS HERE RETAINED AN ECONOMIC INTEREST IN THE BUSINESS FULLY AS
GREAT AS THAT RETAINED BY THE SELLER OF OIL INTERESTS IN THOMAS V.
PERKINS.  THE SELLERS WERE TO BE PAID ONLY OUT OF THE PROCEEDS OF THE
BUSINESS.  IF THE BUSINESS MADE MONEY THEY WOULD BE PAID; IF IT DID
NOT, THEY WOULD NOT BE PAID.  IN THE LATTER EVENT, OF COURSE, THEY
COULD RECOVER THE BUSINESS, BUT A SECURED INTEREST IN A BUSINESS WHICH
WAS LOSING MONEY WOULD BE OF DUBIOUS VALUE.  THERE WAS NO OTHER
SECURITY.  THE INSTITUTE WAS NOT BOUND TO PAY ANY SUM WHATSOEVER.  THE
INSTITUTE, IN FACT, PROMISED ONLY TO CHANNEL TO THE SELLERS A PORTION
OF THE INCOME IT RECEIVED FROM FORTUNA. 

MOREOVER, IN NUMEROUS CASES THIS COURT HAS REFUSED TO TRANSFER THE
INCIDENTS OF TAXATION ALONG WITH A TRANSFER OF LEGAL TITLE WHEN THE
TRANSFEROR RETAINS CONSIDERABLE CONTROL OVER THE INCOME-PRODUCING ASSET
TRANSFERRED.  SEE, E.G., COMMISSIONER V. SUNNEN, 333 U.S. 591;
HELVERING V. CLIFFORD, 309 U.S. 331; CORLISS V. BOWERS, SUPRA.  CONTROL
OF THE BUSINESS DID NOT, IN FACT, SHIFT IN THE TRANSACTION HERE
CONSIDERED.  CLAY BROWN, BY THE TERMS OF THE PURCHASE AGREEMENT AND THE
LEASE, WAS TO MANAGE FORTUNA.  CLAY BROWN WAS GIVEN POWER TO HIRE AND
ARRANGE FOR THE TERMS OF EMPLOYMENT OF ALL OTHER EMPLOYEES OF THE
CORPORATION.  THE LEASE PROVIDED THAT "IF FOR ANY REASON CLAY BROWN IS
UNABLE OR UNWILLING TO SO ACT, THE PERSON OR PERSONS HOLDING A MAJORITY
INTEREST IN THE PRINCIPAL NOTE DESCRIBED IN THE PURCHASE AGREEMENT
SHALL HAVE THE RIGHT TO APPROVE HIS SUCCESSOR TO ACT AS GENERAL MANAGER
OF LESSEE COMPANY."  THUS THE SHAREHOLDERS OF CLAY BROWN & CO. ASSURED
THEMSELVES OF EFFECTIVE CONTROL OVER THE MANAGEMENT OF FORTUNA. 
FURTHERMORE, BROWN'S ATTORNEYS WERE THE NAMED SHAREHOLDERS OF FORTUNA
AND ITS BOARD OF DIRECTORS.  THE INSTITUTE HAD NO CONTROL OVER THE
BUSINESS. 

I WOULD CONCLUDE THAT ON THESE FACTS THERE WAS NOT A SUFFICIENT SHIFT
OF ECONOMIC RISK OR CONTROL OF THE BUSINESS TO WARRANT TREATING THIS
TRANSACTION AS A "SALE" FOR TAX PURPOSES.  BROWN RETAINED FULL CONTROL
OVER THE OPERATIONS OF THE BUSINESS; THE RISK OF LOSS AND THE
OPPORTUNITY TO PROFIT FROM GAIN DURING THE NORMAL OPERATION OF THE
BUSINESS SHIFTED BUT SLIGHTLY.  IF THE OPERATION LOST MONEY, BROWN
STOOD TO LOSE; IF IT GAINED MONEY BROWN STOOD TO GAIN, FOR HE WOULD BE
PAID OFF FASTER.   MOREOVER, THE ENTIRE PURCHASE PRICE WAS TO BE PAID
OUT OF THE ORDINARY INCOME OF THE CORPORATION, WHICH WAS TO BE RECEIVED
BY BROWN ON A RECURRENT BASIS AS HE HAD RECEIVED IT DURING THE PERIOD
HE OWNED THE CORPORATION.  I DO NOT BELIEVE THAT CONGRESS INTENDED THIS
RECURRENT RECEIPT OF ORDINARY BUSINESS INCOME TO BE TAXED AT CAPITAL
GAINS RATES MERELY BECAUSE THE BUSINESS WAS TO BE TRANSFERRED TO A TAX
EXEMPT ENTITY AT SOME FUTURE DATE.  FOR THIS REASON I WOULD APPLY HERE
THE ESTABLISHED RULE THAT, DESPITE FORMAL LEGAL ARRANGEMENTS, A SALE
DOES NOT TAKE PLACE UNTIL THERE HAS BEEN A SIGNIFICANT ECONOMIC CHANGE
SUCH AS A SHIFT IN RISK OR IN CONTROL OF THE BUSINESS.  (FN4) 

TO HOLD AS THE COURT DOES THAT THIS TRANSACTION CONSTITUTES A "SALE"
WITHIN THE TERMS OF I.R.C. SEC. 1222(3), THEREBY GIVING RISE TO CAPITAL
GAIN FOR THE INCOME RECEIVED, LEGITIMATES CONSIDERABLE TAX EVASION. 
EVEN IF THE COURT RESTRICTS ITS HOLDING, ALLOWING ONLY THOSE
TRANSACTIONS TO BE SEC. 1222(3) SALES IN WHICH THE PRICE IS NOT
EXCESSIVE, ITS DECISION ALLOWS CONSIDERABLE LATITUDE FOR THE
UNWARRANTED CONVERSION OF ORDINARY INCOME INTO CAPITAL GAIN.  VALUATION
OF A CLOSED CORPORATION IS NOTORIOUSLY DIFFICULT.  THE TAX COURT IN THE
PRESENT CASE DID NOT DETERMINE THAT THE PRICE FOR WHICH THE CORPORATION
WAS SOLD REPRESENTED ITS TRUE VALUE; IT SIMPLY STATED THAT THE PRICE
"WAS THE RESULT OF REAL NEGOTIATING" AND "WITHIN A REASONABLE RANGE IN
LIGHT OF THE EARNINGS HISTORY OF THE CORPORATION AND THE ADJUSTED NET
WORTH OF THE CORPORATE ASSETS."  37 T.C., AT 486.  THE TAX COURT,
HOWEVER, ALSO SAID THAT "IT MAY BE  ...  THAT PETITIONER (CLAY BROWN)
WOULD HAVE BEEN UNABLE TO SELL THE STOCK AT AS FAVORABLE A PRICE TO
ANYONE OTHER THAN A TAX-EXEMPT ORGANIZATION."  37 T.C., AT 485. 
INDEED, THIS LATTER SUPPOSITION IS HIGHLY LIKELY, FOR THE INSTITUTE WAS
SELLING ITS TAX EXEMPTION, AND THIS IS NOT THE SORT OF ASSET WHICH IS
LIMITED IN QUANTITY.  THOUGH THE INSTITUTE MIGHT HAVE NEGOTIATED IN
ORDER TO RECEIVE BENEFICIAL OWNERSHIP OF THE CORPORATION AS SOON AS
POSSIBLE, THE INSTITUTE, AT NO COST TO ITSELF, COULD INCREASE THE PRICE
TO PRODUCE AN OFFER TOO ATTRACTIVE FOR THE SELLER TO DECLINE.  THUS IT
IS NATURAL TO ANTICIPATE SALES SUCH AS THIS TAKING PLACE AT PRICES ON
THE UPPER BOUNDARY OF WHAT COURTS WILL HOLD TO BE A REASONABLE PRICE -
AT PRICES WHICH WILL OFTEN BE CONSIDERABLY GREATER THAN WHAT THE OWNERS
OF A CLOSED CORPORATION COULD HAVE RECEIVED IN A SALE TO BUYERS WHO
WERE NOT SELLING THEIR TAX EXEMPTIONS.  UNLESS CONGRESS REPAIRS THE
DAMAGE DONE BY THE COURT'S HOLDING, I SHOULD THINK THAT CHARITIES WILL
SOON OWN A CONSIDERABLE NUMBER OF CLOSED CORPORATIONS, THE OWNERS OF
WHICH WILL SEE NO GOOD REASON TO CONTINUE PAYING TAXES AT ORDINARY
INCOME RATES.  IT SHOULD NOT BE NECESSARY, HOWEVER, FOR CONGRESS TO
ADDRESS ITSELF TO THIS LOOPHOLE, FOR I BELIEVE THAT UNDER THE PRESENT
LAWS IT IS CLEAR THAT CONGRESS DID NOT INTEND TO ACCORD CAPITAL GAINS
TREATMENT TO THE PROCEEDS OF THE TYPE OF SALE PRESENT HERE. 

ALTHOUGH THE COURT IMPLIES THAT IT WILL HOLD TO BE "SALES" ONLY THOSE
TRANSACTIONS IN WHICH THE PRICE IS REASONABLE, I DO NOT BELIEVE THAT
THE LOGIC OF THE COURT'S OPINION WILL JUSTIFY SO RESTRICTING ITS
HOLDING.  IF THIS TRANSACTION IS A SALE UNDER THE INTERNAL REVENUE
CODE, ENTITLING ITS PROCEEDS TO CAPITAL GAINS TREATMENT BECAUSE IT WAS
ARRIVED AT AFTER HARD NEGOTIATING, TITLE IN A CONVEYANCING SENSE
PASSED, AND THE BENEFICIAL OWNERSHIP WAS EXPECTED TO PASS AT A LATER
DATE, THEN THE QUESTION RECURS, WHICH THE COURT DOES NOT ANSWER, WHY A
SIMILAR TRANSACTION WOULD CEASE TO BE A SALE IF HARD NEGOTIATING
PRODUCED A PURCHASE PRICE MUCH GREATER THAN ACTUAL VALUE.  THE COURT
RELIES UPON KOLKEY V. COMMISSIONER, 254 F.2D 51 (C.A. 7TH CIR.), AS
AUTHORITY HOLDING THAT A BOOTSTRAP TRANSACTION WILL BE STRUCK DOWN
WHERE THE PRICE IS EXCESSIVE.  IN KOLKEY, HOWEVER, THE PRICE TO BE PAID
WAS SO MUCH GREATER THAN THE WORTH OF THE CORPORATION IN TERMS OF ITS
ANTICIPATED INCOME THAT IT WAS HIGHLY UNLIKELY THAT THE PRICE WOULD IN
FACT EVER BE PAID; CONSEQUENTLY IT WAS IMPROBABLE THAT THE SELLERS'
INTEREST IN THE BUSINESS WOULD EVER BY EXTINGUISHED.  THEREFORE, IN
KOLKEY THE COURT, VIEWING THE CASE AS ONE INVOLVING "THIN
CAPITALIZATION," TREATED THE NOTES HELD BY THE SELLERS AS EQUITY IN THE
NEW CORPORATION AND PAYMENTS ON THEM AS DIVIDENDS.  THOSE WHO FASHION
"BOOTSTRAP" PURCHASES HAVE BECOME CONSIDERABLY MORE SOPHISTICATED SINCE
KOLKEY; VASTLY EXCESSIVE PRICES ARE UNLIKELY TO BE FOUND AND
TRANSACTIONS ARE FASHIONED SO THAT THE "THIN CAPITALIZATION" ARGUMENT
IS CONCEPTUALLY INAPPLICABLE.  THUS I DO NOT SEE WHAT RATIONALE THE
COURT MIGHT USE TO STRIKE DOWN PRICE TRANSACTIONS WHICH, THOUGH
EXCESSIVE, DO NOT REACH KOLKEY'S DIMENSIONS, WHEN IT UPHOLDS THE ONE
HERE UNDER CONSIDERATION.  SUCH TRANSACTIONS WOULD HAVE THE SAME DEGREE
OF RISK-SHIFTING, THERE WOULD BE NO LESS A TRANSFER OF OWNERSHIP, AND
CONSIDERATION SUPPLIED BY THE BUYER NEED BE NO LESS THAN HERE. 

FURTHER, A BOOTSTRAP TAX AVOIDANCE SCHEME CAN EASILY BE STRUCTURED
UNDER WHICH THE HOLDER OF ANY INCOME-EARNING ASSET "SELLS" HIS ASSET TO
A TAX-EXEMPT BUYER FOR A PROMISE TO PAY HIM THE INCOME PRODUCED FOR A
PERIOD OF YEARS.  THE BUYER IN SUCH A TRANSACTION WOULD DO NOTHING
WHATSOEVER; THE SELLER WOULD BE DELIGHTED TO LOSE HIS ASSET AT THE END
OF, SAY, 30 YEARS IN RETURN FOR CAPITAL GAINS TREATMENT OF ALL INCOME
EARNED DURING THAT PERIOD.  IT IS DIFFICULT TO SEE, ON THE COURT'S
RATIONALE, WHY SUCH A SCHEME IS NOT A SALE.  AND, IF I AM WRONG IN MY
READING OF THE COURT'S OPINION, AND IF THE COURT WOULD STRIKE DOWN SUCH
A SCHEME ON THE GROUND THAT THERE IS NO ECONOMIC SHIFTING OF RISK OR
CONTROL, IT IS DIFFICULT TO SEE WHY THE COURT UPHOLDS THE SALE
PRESENTLY BEFORE IT IN WHICH CONTROL DOES NOT CHANGE AND ANY SHIFTING
OF RISK IS NOMINAL. 

I BELIEVE THAT THE COURT'S OVERLY CONCEPTUAL APPROACH HAS LED TO A
HOLDING WHICH WILL PRODUCE SERIOUS EROSION OF OUR PROGRESSIVE TAXING
SYSTEM, RESULTING IN GREATER TAX BURDENS UPON ALL TAXPAYERS.  THE TAX
AVOIDANCE ROUTES OPENED BY THE COURT'S OPINION WILL SURELY BE USED TO
ADVANTAGE BY THE OWNERS OF CLOSED CORPORATIONS AND OTHER INCOME
PRODUCING ASSETS IN ORDER TO EVADE ORDINARY INCOME TAXES AND PAY AT
CAPITAL GAINS RATES, WITH A RESULTANT LARGE-SCALE OWNERSHIP OF PRIVATE
BUSINESSES BY TAX-EXEMPT ORGANIZATIONS.  (FN5)  WHILE THE COURT
JUSTIFIES ITS RESULT IN THE NAME OF CONCEPTUAL PURITY, (FN6) IT
SIMULTANEOUSLY VIOLATES LONG-STANDING CONGRESSIONAL TAX POLICIES THAT
CAPITAL GAINS TREATMENT IS TO BE GIVEN TO SIGNIFICANT ECONOMIC
TRANSFERS OF INVESTMENT-TYPE ASSETS BUT NOT TO ORDINARY COMMERCIAL OR
BUSINESS INCOME AND THAT TRANSACTIONS ARE TO BE JUDGED ON THEIR ENTIRE
SUBSTANCE RATHER THAN THEIR NAKED FORM.  THOUGH TURNING TAX
CONSEQUENCES ON FORM ALONE MIGHT PRODUCE GREATER CERTAINTY OF THE TAX
RESULTS OF ANY TRANSACTION, THIS STABILITY EXACTS AS ITS PRICE THE
CERTAINTY THAT TAX EVASION WILL BE PRODUCED.  IN COMMISSIONER V. P.G.
LAKE, INC., 356 U.S. 260, 265, THIS COURT RECOGNIZED THAT THE PURPOSE
OF THE CAPITAL GAINS PROVISIONS OF THE INTERNAL REVENUE CODE IS "'TO
RELIEVE THE TAXPAYER FROM  ...  EXCESSIVE TAX BURDENS ON GAINS
RESULTING FROM A CONVERSION OF CAPITAL INVESTMENTS, AND TO REMOVE THE
DETERRENT EFFECT OF THOSE BURDENS ON SUCH CONVERSIONS.'  ...  AND THIS
EXCEPTION HAS ALWAYS BEEN NARROWLY CONSTRUED SO AS TO PROTECT THE
REVENUE AGAINST ARTFUL DEVICES."  I WOULD HOLD IN KEEPING WITH THIS
PURPOSE AND IN ORDER TO PREVENT SERIOUS EROSION OF THE ORDINARY INCOME
TAX PROVISIONS OF THE CODE, THAT THE BOOTSTRAP TRANSACTION REVEALED BY
THE FACTS HERE CONSIDERED IS NOT A "SALE" WITHIN THE MEANING OF THE
CAPITAL GAINS PROVISIONS OF THE CODE, BUT THAT IT OBVIOUSLY IS AN
"ARTFUL DEVICE," WHICH THIS COURT OUGHT NOT TO LEGITIMATE.  THE COURT
JUSTIFIES THE UNTOWARD RESULT OF THIS CASE AS PERMITTED TAX AVOIDANCE;
I BELIEVE IT TO BE A PLAIN AND SIMPLE CASE OF UNWARRANTED TAX EVASION. 

FN1  SEE I.R.C. 1954, SEC. 501(C)(3). 

FN2  THIS LEASE ARRANGEMENT WAS DESIGNED TO PERMIT THE INSTITUTE TO
TAKE ADVANTAGE OF ITS CHARITABLE EXEMPTION TO AVOID TAXES ON PAYMENT OF
FORTUNA'S PROFITS TO IT, WITH FORTUNA RECEIVING A DEDUCTION FOR THE
RENTAL PAYMENTS AS AN ORDINARY AND NECESSARY BUSINESS EXPENSE, THUS
AVOIDING TAXES ON BOTH.  THOUGH UNRELATED BUSINESS INCOME IS USUALLY
TAXABLE WHEN RECEIVED BY CHARITIES, AN EXCEPTION IS MADE FOR INCOME
RECEIVED FROM THE LEASE OF REAL AND PERSONAL PROPERTY OF LESS THAN FIVE
YEARS.  SEE I.R.C. SEC. 514; LANNING, TAX EROSION AND THE "BOOTSTRAP
SALE" OF A BUSINESS - I, 108 PA. L. REV. 623, 684-689.  THOUGH DENIAL
OF THE CHARITY'S TAX EXEMPTION ON RENT RECEIVED FROM FORTUNA WOULD ALSO
REMOVE THE ECONOMIC INCENTIVE UNDERLYING THIS BOOTSTRAP TRANSACTION,
THERE IS NO INDICATION IN THE COURT'S OPINION THAT SUCH INCOME IS NOT
TAX EXEMPT.  SEE THE COURT'S OPINION, ANTE, AT 565-566. 

FN3  SEE THE ARTICLES CITED IN THE MAJORITY OPINION, ANTE, AT 566, N.
2. 

FN4  THE FACT THAT RESPONDENTS WERE TO LOSE COMPLETE CONTROL OF THE
BUSINESS AFTER THE PAYMENTS WERE COMPLETE WAS TAKEN INTO ACCOUNT BY THE
COMMISSIONER, FOR HE TREATED THE BUSINESS IN RESPONDENTS' HANDS AS A
WASTING ASSET, SEE I.R.C. 1954, SEC. 167, AND ALLOWED THEM TO OFFSET
THEIR BASIS IN THE STOCK AGAINST THE PAYMENTS RECEIVED. 

FN5  ATTORNEYS FOR AMICI HAVE POINTED OUT THAT TAX-EXEMPT CHARITIES
WHICH THEY REPRESENT HAVE BOUGHT NUMEROUS CLOSED CORPORATIONS. 

FN6  IT SHOULD BE NOTED, HOWEVER, THAT THE COURT'S HOLDING PRODUCES
SOME RATHER UNUSUAL CONCEPTUAL RESULTS.  FOR EXAMPLE, AFTER THE PAYOUT
IS COMPLETE THE INSTITUTE PRESUMABLY WOULD HAVE A BASIS OF $1,300,000
IN A BUSINESS THAT IN REALITY COST IT NOTHING.  IF ANYONE DESERVES SUCH
A BASIS, IT IS THE GOVERNMENT, WHOSE GRANT OF TAX EXEMPTION IS BEING
USED BY THE INSTITUTE TO ACQUIRE THE BUSINESS. 
..END :























AMERICAN OIL CO. V. NEILL 380 U.S. 451 


NO. 19.  ARGUED JANUARY 25-26, 1965.  - DECIDED APRIL 26, 1965.  - 86
IDAHO 7, 383 P.2D 350, REVERSED AND REMANDED. 


FROM ITS SEATTLE REGIONAL OFFICE THE GOVERNMENT SERVICES
ADMINISTRATION (GSA) INVITED BIDS TO SUPPLY MOTOR FUEL FOR USE BY
GOVERNMENT AGENCIES IN IDAHO AND OTHER STATES.  UTAH OIL REFINING
COMPANY (UTAH OIL) MADE BIDS FROM ITS SALT LAKE CITY OFFICES INCLUDING
TWO BIDS FOR SUPPLYING GASOLINE TO THE ATOMIC ENERGY COMMISSION (AEC),
EACH BID BEING MADE ALTERNATIVELY FOR DELIVERY F.O.B. SALT LAKE CITY OR
THE AEC SITE IN IDAHO.  GSA, AT SEATTLE, AWARDED UTAH OIL THE CONTRACT
FOR DELIVERY OF THE GASOLINE AT UTAH OIL'S SALT LAKE CITY BULK PLANT,
WHERE TITLE PASSED.  AEC ARRANGED FOR TRANSPORTATION OF THE GASOLINE TO
ITS IDAHO SITE BY COMMON CARRIERS.  UTAH OIL WAS LICENSED AS A "DEALER"
IN IDAHO BUT ITS ACTIVITIES THERE WERE UNRELATED TO THE GSA CONTRACT. 
APPELLEE IDAHO STATE TAX COLLECTOR IMPOSED AN EXCISE TAX ON THE
TRANSACTION UNDER A STATUTE TAXING THE "DEALER" WHO FIRST "RECEIVES"
MOTOR FUEL IN THE STATE, THE STATUTE MAKING A LICENSED DEALER THE
CONSTRUCTIVE RECIPIENT OF MOTOR FUEL UNLOADED IN IDAHO WHICH IT SOLD
OUT-OF-STATE FOR IN-STATE USE TO A PURCHASER WITHOUT A LICENSE.  THE
TAX WAS PAID UNDER PROTEST BY UTAH OIL WHICH APPELLANT, ITS SUCCESSOR
IN INTEREST, NOW SEEKS TO HAVE REFUNDED.  THE TRIAL COURT GRANTED
APPELLANT SUMMARY JUDGMENT, HOLDING THE TAX INVALID SINCE APPLIED TO A
SALE OUTSIDE IDAHO.  THE IDAHO SUPREME COURT REVERSED.  HELD: 

1.  THE OPERATING INCIDENCE OF THE TAX FELL ON THE DEALER, WHO WAS
NOT REQUIRED TO PASS IT ON TO OR COLLECT IT FROM THE CONSUMER.  PP. 455
457. 

2.  A STATE'S IMPOSITION OF AN EXCISE TAX WITH RESPECT TO AN OUT-OF
STATE TRANSACTION UPON A DEALER ENTIRELY DISSOCIATED FROM ANY IN-STATE
ACTIVITIES VIOLATES THE DUE PROCESS CLAUSE.  PP. 457-459. 

(A)  THE VENDOR'S KNOWLEDGE THAT THE COMMODITY SOLD WAS FOR USE IN
THE STATE WOULD NOT OF ITSELF MAKE THE TAX ON THE OUT-OF-STATE SALE
PERMISSIBLE.  P. 457. 

(B)  SINCE EVERY PHASE OF THE TRANSACTION HERE OCCURRED OUTSIDE THE
TAXING STATE, NEITHER THE FACT THAT THE DEALER WAS LICENSED IN THE
STATE NOR THAT IT PERFORMED ACTIVITIES IN THE STATE SUFFICES TO UPHOLD
THE TAX.  PP. 458-459. 

AMERICAN OIL CO. V. NEILL ET AL. 

APPEAL FROM THE SUPREME COURT OF IDAHO. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS THE ISSUE OF WHETHER, WHERE A LICENSED IDAHO
DEALER IN MOTOR FUELS SELLS AND TRANSFERS GASOLINE OUTSIDE THE STATE
FOR IMPORTATION INTO THE STATE BY AN AGENCY OF THE FEDERAL GOVERNMENT,
THE STATE OF IDAHO MAY CONSTITUTIONALLY IMPOSE AN EXCISE TAX UPON THE
TRANSACTION ON THE THEORY THAT THE DEALER CONSTRUCTIVELY "RECEIVES" THE
GASOLINE IN IDAHO UPON ITS IMPORTATION. 

ON JUNE 26, 1959, INVITATIONS FOR BIDS WERE ISSUED BY THE UNITED
STATES GOVERNMENT FROM THE REGIONAL OFFICE OF THE GENERAL SERVICES
ADMINISTRATION (GSA) AT SEATTLE, WASHINGTON, COVERING SOME 607 SEPARATE
ITEMS - EACH DESIGNED TO SUPPLY A DISTINCT MOTOR FUEL NEED OF A
PARTICULAR GOVERNMENT AGENCY AT ONE OF A MULTITUDE OF LOCATIONS IN
IDAHO, MONTANA, OREGON, AND WASHINGTON FOR THE PERIOD FROM NOVEMBER 1,
1959, THROUGH OCTOBER 31, 1960.  BIDS ON EACH ITEM WERE TO BE SUBMITTED
TO THE SEATTLE OFFICE AND WERE TO BE EVALUATED ON THEIR INDIVIDUAL
MERITS AND ACCEPTED OR REJECTED WITHOUT REFERENCE TO OTHER ITEMS. 

APPELLANT'S PREDECESSOR IN INTEREST, UTAH OIL REFINING COMPANY (UTAH
OIL), IS A DELAWARE CORPORATION.  PURSUANT TO THE GSA INVITATION IT
TRANSMITTED BIDS FROM ITS OFFICES IN SALT LAKE CITY, UTAH, ON VARIOUS
ITEMS.  INCLUDED WERE NUMBERS 63 AND 64 DEALING WITH THE SUPPLY OF
APPROXIMATELY 200,000 AND 1,000,000 GALLONS OF GASOLINE, RESPECTIVELY,
FOR THE USE OF THE ATOMIC ENERGY COMMISSION (AEC) AT IDAHO FALLS,
IDAHO.  BIDS ON THESE TWO ITEMS WERE SUBMITTED IN ALTERNATIVE FORM,
QUOTING A PRICE F.O.B. SALT LAKE CITY AND A PRICE F.O.B.  THE AEC
ACTIVITY SITE IN IDAHO.  (FN1) 

ON OCTOBER 26, 1959, UTAH OIL'S BIDS ON THE TWO ITEMS WERE ACCEPTED
IN SEATTLE BY THE GSA.  UNDER THE TERMS OF THE CONTRACT GASOLINE WAS TO
BE SOLD TO THE AEC AT A DESIGNATED PRICE F.O.B. BULK PLANT, SALT LAKE
CITY.  THE TOTAL PRICE DID NOT INCLUDE ANY STATE TAX BUT PROVISION WAS
MADE FOR AN INCREASE IN THE CONTRACT PRICE IF ANY SUCH TAX WAS
IMPOSED. 

IN ACCORDANCE WITH THE CONTRACT, THE AEC, OR ITS OPERATING AGENT,
PHILLIPS PETROLEUM COMPANY, PERIODICALLY ORDERED SOME 1,436,355 GALLONS
OF GASOLINE.  DELIVERY WAS EFFECTED BY UTAH OIL IN SALT LAKE CITY. 
ALTHOUGH THE FACTS SUBSEQUENT TO DELIVERY ARE IN DISPUTE, IT APPEARS
THAT THEREAFTER COMMON CARRIERS, SELECTED AND PAID BY THE AEC,
TRANSPORTED THE FUEL FROM SALT LAKE CITY TO IDAHO FALLS WHERE IT WAS
PLACED IN AEC-OWNED STORAGE TANKS AND USED IN AEC OPERATIONS IN IDAHO. 
(FN2) 

DURING THE TIME THAT UTAH OIL WAS PERFORMING THE CONTRACT, IT WAS
AUTHORIZED TO DO BUSINESS IN THE STATE OF IDAHO AS A "LICENSED DEALER"
AS DEFINED BY THE IDAHO MOTOR FUELS TAX ACT, AS AMENDED, IDAHO CODE,
TIT. 49, C. 12 (1957).  THIS ACT IMPOSES AN INITIAL REQUIREMENT THAT
ALL MOTOR FUEL "DEALERS" HOLD A PERMIT ISSUED BY THE STATE TAX
COLLECTOR.  TO PROCURE SUCH A PERMIT ONE NEED ONLY FILL OUT AN
APPLICATION, POST BOND, AND PAY A FIVE-DOLLAR FILING FEE.  SECURANCE OF
A PERMIT IS NECESSARY BEFORE ANY DEALER CAN "IMPORT, RECEIVE, USE, SELL
OR DISTRIBUTE ANY MOTOR FUELS" WITHIN THE STATE.  IDAHO CODE AN.. SEC.
49-1202 (1957). 

A "DEALER" IS DEFINED BY SEC. 49-1201 AS ANY PERSON WHO FIRST
RECEIVES MOTOR FUELS IN THE STATE WITHIN THE MEANING OF THE WORD
"RECEIVED."  (FN3)  AS A DEALER, ONE IS REQUIRED TO MAKE MONTHLY
REPORTS TO THE STATE TAX COLLECTOR AND PAY AN EXCISE TAX OF SIX CENTS
PER GALLON ON ALL MOTOR FUELS "RECEIVED" WITHIN THE AMBIT OF SEC 49
1201(G).  THE ACT THEN PROVIDES THAT THE PROCEEDS OF THE TAX ARE TO BE
PLACED INTO A STATE HIGHWAY FUND. 

DURING ITS PERFORMANCE OF THE CONTRACTS UTAH OIL SUBMITTED THE
REQUIRED MONTHLY REPORTS.  THE STATE TAX COLLECTOR THEREUPON INSISTED
THAT PAYMENT OF THE SIX-CENT TAX BE FORTHCOMING PURSUANT TO SEC. 49
1201(G) DUE TO THE FACT THAT UTAH OIL WAS A LICENSED DEALER IN THE
STATE OF IDAHO WHICH HAD SOLD MOTOR FUEL TO AN AGENCY "NOT THE HOLDER
OF A  ...  DEALER PERMIT  ...  FOR IMPORTATION INTO THE STATE  ...
FROM A POINT OF ORIGIN OUTSIDE THE STATE."  TAXES TOTALING $86,181.30
WERE PAID UNDER PROTEST.  THE INSTANT LITIGATION WAS THEN INITIATED IN
THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF IDAHO
FOR REFUND.  APPELLANT CLAIMED AT THE THRESHOLD THAT THE IMPOSITION OF
THE TAX ON AN OUT-OF-STATE SALE TO THE FEDERAL GOVERNMENT VIOLATED THE
DUE PROCESS, COMMERCE, AND SUPREMACY CLAUSES OF THE CONSTITUTION. 

THE TRIAL JUDGE GRANTED SUMMARY JUDGMENT FOR THE APPELLANT FINDING
THAT THE IMPOSITION OF THE TAX VIOLATED THE DUE PROCESS AND COMMERCE
CLAUSES SINCE IT WAS APPLIED TO A SALE MADE OUTSIDE OF IDAHO.  ON
APPEAL THE IDAHO SUPREME COURT REVERSED, FINDING THE CONSTITUTIONAL
OBJECTIONS TO BE WITHOUT MERIT.  86 IDAHO 7, 383 P.2D 350.  WE NOTED
PROBABLE JURISDICTION, 377 U.S. 962, BECAUSE THE VALIDITY OF A STATE
STATUTE HAD BEEN UPHELD OVER AN OBJECTION THAT IT WAS REPUGNANT TO THE
CONSTITUTION.  28 U.S.C. SEC. 1257(2) (1958 ED.). 

                      I. 

WHEN PASSING ON THE CONSTITUTIONALITY OF A STATE TAXING SCHEME IT IS
FIRMLY ESTABLISHED THAT THIS COURT CONCERNS ITSELF WITH THE PRACTICAL
OPERATION OF THE TAX, THAT IS, SUBSTANCE RATHER THAN FORM.  WISCONSIN
V. J.C. PENNEY CO., 311 U.S. 435, 443-444; LAWRENCE V. STATE TAX
COMM'N, 286 U.S. 276, 280, AND CASES CITED THEREIN.  THIS APPROACH
REQUIRES US TO DETERMINE THE ULTIMATE EFFECT OF THE LAW AS APPLIED AND
ENFORCED BY A STATE OR, IN OTHER WORDS, TO FIND THE OPERATING INCIDENCE
OF THE TAX.  CONNECTICUT GEN. LIFE INS. CO. V. JOHNSON, 303 U.S. 77,
80. 

WHEN A STATE COURT HAS MADE ITS OWN DEFINITIVE DETERMINATION AS TO
THE OPERATING INCIDENCE, OUR TASK IS SIMPLIFIED.  WE GIVE THIS FINDING
GREAT WEIGHT IN DETERMINING THE NATURAL EFFECT OF A STATUTE, AND IF IT
IS CONSISTENT WITH THE STATUTE'S REASONABLE INTERPRETATION IT WILL BE
DEEMED CONCLUSIVE.  (FN4)  SUCH A SITUATION IS MANIFEST IN THE INSTANT
CASE. 

THE TRIAL JUDGE FOUND THAT THE OPERATING INCIDENCE OF THE TAX CLEARLY
FELL ON THE DEALER: 

"THE DEALER IS NOT IN ANY WAY REQUIRED TO PASS THE TAX ON OR COLLECT
IT FROM THE CONSUMER, AND THE ULTIMATE PURCHASER OR CONSUMER HAS NO
RESPONSIBILITY WHATSOEVER FOR PAYMENT OF THE TAX.  WHILE IT MAY BE THE
OVERALL POLICY OF THE STATE TO COLLECT A TAX OF 6 CENTS PER GALLON ON
ALL GASOLINE USED TO PROPEL MOTOR VEHICLES OVER IDAHO STATE HIGHWAYS,
THE TAXABLE EVENT OR TRANSACTION IS NOT THE USE BY THE LOCAL CONSUMER
OR PURCHASER, BUT THE 'RECEIPT' OF THE GAS BY THE DEALER.  IT CANNOT BE
SAID UNDER THIS STATUTE THAT THE LICENSED DEALER IS THE MERE COLLECTOR
OF A TAX FROM THE PURCHASER OR USER  ...  ." 

THIS CONCLUSION WAS FURTHER BUTTRESSED BY FINDING THAT THE IDAHO
ADMINISTRATIVE INTERPRETATION OF THE STATUTE IN THE PAST HAS BEEN TO
TREAT IT AS A PRIVILEGE TAX UPON THE DEALER.  (FN5) 

ON APPEAL THE IDAHO SUPREME COURT LEFT THE TRIAL COURT'S CONCLUSIONS
UNDISTURBED.  MOREOVER, THE STATE ATTORNEY GENERAL IN HIS BRIEF BEFORE
THIS COURT EXPRESSLY STATES THAT THE TAX "IS A PRIVILEGE TAX, THE
INCIDENCE OF WHICH FALLS ON THE DEALER  ...  ."  (FN6)  THIS UNANIMITY
BETWEEN THE COURTS OF IDAHO AND ITS AGENCIES IS TO US IN ACCORD WITH
THE LITERAL INTERPRETATION OF THE ACT INASMUCH AS SEC. 49-1210 CLEARLY
STATES THAT "EACH DEALER SHALL PAY TO THE COMMISSIONER AN EXCISE TAX OF
SIX CENTS PER GALLON ON ALL MOTOR FUELS  ...  " WITH NO COINCIDING
PROVISION PASSING THE BURDEN OF THE TAX TO THE PURCHASER.  WE THEREFORE
GIVE THE FINDINGS BELOW CONTROLLING EFFECT AND HOLD THAT THE INCIDENCE
OF THE TAX FALLS ON THE DEALER. 

                                           II. 

ALTHOUGH THE IDAHO SUPREME COURT AGREED WITH THE TRIAL JUDGE THAT THE
TAXED EVENTS WERE THE SALES OF GASOLINE IN UTAH, TWO FACTORS WERE
CONSIDERED SUFFICIENT TO BRING THE TRANSACTIONS WITHIN THE PURVIEW OF
IDAHO'S TAXING POWER.  FIRST, UTAH OIL SOLD THE GASOLINE WITH KNOWLEDGE
THAT IT WOULD BE IMPORTED INTO AND USED WITHIN IDAHO; AND, SECOND, UTAH
OIL HAD BEEN AUTHORIZED TO DO BUSINESS IN IDAHO HAVING APPLIED FOR AND
RECEIVED A DEALER'S PERMIT "AUTHORIZING IT TO ENTER INTO THE IDAHO
MARKET AS A DISTRIBUTOR OF MOTOR FUELS  ...  ."  86 IDAHO, AT 23, 383
P.2D, AT 360.  WE CONCLUDE THAT THESE CONSIDERATIONS WERE INSUFFICIENT
TO UPHOLD THE TAX AS AGAINST ATTACK UNDER THE DUE PROCESS CLAUSE. 

THE MERE FACT THAT UTAH OIL KNEW THAT THE GASOLINE WAS TO BE IMPORTED
INTO IDAHO MERITS LITTLE DISCUSSION.  MORE THAN ONCE THIS COURT HAS
STRUCK DOWN TAXES DIRECTLY IMPOSED ON OR RESULTING FROM OUT-OF-STATE
SALES WHICH WERE HELD TO BE INSUFFICIENTLY RELATED TO ACTIVITIES WITHIN
THE TAXING STATE, DESPITE THE FACT THAT THE VENDOR KNEW THAT THE GOODS
WERE DESTINED FOR USE IN THAT STATE.  MILLER BROS. CO. V. MARYLAND, 347
U.S. 340 (USE TAX); NORTON CO. V. DEPARTMENT OF REVENUE, 340 U.S. 534
(GROSS RECEIPTS TAX); MCLEOD V. J E. DILWORTH CO., 322 U.S. 327 (SALES
TAX). 

THESE CASES HAVE ALSO FIRMLY ESTABLISHED THE DOCTRINE THAT WHEN A TAX
IS IMPOSED ON AN OUT-OF-STATE VENDOR, "NEXUS" BETWEEN THE TAXING STATE
AND THE TAXPAYER IS THE OUTSTANDING PREREQUISITE ON STATE POWER TO
TAX.  CONSISTENT WITH THIS REQUIREMENT THERE MUST BE "SOME DEFINITE
LINK, SOME MINIMUM CONNECTION, BETWEEN A STATE AND THE PERSON, PROPERTY
OR TRANSACTION IT SEEKS TO TAX."  MILLER BROS. CO. V. MARYLAND, SUPRA,
AT 344-345.  GRANTED THAT WHEN A CORPORATION, PURSUANT TO PERMISSION
GIVEN, ENTERS A STATE AND PROCEEDS TO DO LOCAL BUSINESS THE "LINK" IS
STRONG.  IN SUCH INSTANCES THERE IS A STRONG INFERENCE THAT IT EXISTS
BETWEEN THE STATE AND TRANSACTIONS WHICH RESULT IN ECONOMIC BENEFITS
OBTAINED FROM A SOURCE WITHIN THE STATE'S TERRITORIAL LIMITS.  THE
CORPORATION CAN, HOWEVER, EXEMPT ITSELF BY A CLEAR SHOWING THAT THERE
ARE NO IN-STATE ACTIVITIES CONNECTED WITH OUT-0F-STATE SALES.  IN SUCH
INSTANCES, THE TRANSACTIONS ARE SAID TO BE "DISSOCIATED FROM THE LOCAL
BUSINESS," NORTON CO. V. DEPARTMENT OF REVENUE, SUPRA, AT 537, AND
THEREFORE MAY NOT, CONSISTENT WITH DUE PROCESS, BE TAXED. 

IN THE PRESENT CASE IT IS PLAIN THAT NEITHER UTAH OIL'S POSITION AS A
LICENSED DEALER IN IDAHO NOR THE FACT THAT IT OTHERWISE ENGAGED IN
BUSINESS THERE WILL SUFFICE TO UPHOLD THE TAX.  UTAH OIL'S TRANSFER OF
GASOLINE WAS UNQUESTIONABLY AN OUT-OF-STATE SALE VIS-A-VIS IDAHO AND
ENTIRELY UNCONNECTED WITH ITS BUSINESS IN THAT STATE.  EACH AND EVERY
PHASE OF THE TRANSACTION HAD ITS LOCUS OUTSIDE OF IDAHO:  INVITATIONS
FOR BIDS WERE ISSUED BY THE GOVERNMENT IN SEATTLE, WASHINGTON; UTAH OIL
SUBMITTED ITS BIDS FROM SALT LAKE CITY; THE BIDS WERE ACCEPTED IN
SEATTLE; THE CONTRACT CALLED FOR DELIVERY OF THE GASOLINE F.O.B. SALT
LAKE CITY; UTAH OIL DELIVERED THE GASOLINE TO SALT LAKE CITY, AND IT
WAS THERE THAT TITLE PASSED.  THERE IS NO REASON TO SUPPOSE, NOR DOES
THE RECORD IN ANY WAY INDICATE, THAT UTAH OIL'S ACTIVITIES IN IDAHO
CONTRIBUTED IN ANY WAY TO THE PROCUREMENT OR PERFORMANCE OF THE
CONTRACT.  COMPARE NORTON CO. V. DEPARTMENT OF REVENUE, SUPRA, WITH
GENERAL MOTORS CORP. V. WASHINGTON, 377 U.S. 436. 

THE IDAHO SUPREME COURT WAS FULLY COGNIZANT OF THESE FACTS BUT CHOSE
TO CHARACTERIZE UTAH OIL'S DEALER'S PERMIT AS AUTHORIZING IT "TO ENGAGE
IN THE VERY ACTIVITY IT NOW CLAIMS IS EXEMPT FROM THE TAX."  86 IDAHO,
AT 23, 383 P.2D, AT 360.  THIS STATEMENT, HOWEVER, FAILS TO REFLECT THE
CLEAR HOLDING BY THIS COURT THAT THE GRANTING BY A STATE "OF THE
PRIVILEGE OF DOING BUSINESS THERE AND ITS CONSEQUENT AUTHORITY TO TAX
THE PRIVILEGE DO NOT WITHDRAW FROM THE PROTECTION OF THE DUE PROCESS
CLAUSE THE PRIVILEGE" OF DOING BUSINESS ELSEWHERE.  CONNECTICUT GEN.
LIFE INS. CO. V. JOHNSON, SUPRA, AT 82.  THIS IS EXACTLY THE SITUATION
PRESENT IN THE INSTANT CASE.  UNDER THE CIRCUMSTANCES WE HOLD THE FACT
THAT UTAH OIL WAS THE HOLDER OF AN IDAHO DEALER'S PERMIT TO BE PURELY
FORTUITOUS. 

SINCE WE DECIDE THAT THE EXACTED TAX VIOLATES THE DUE PROCESS CLAUSE,
THERE IS NO NEED FOR DISCUSSION OF CONSTITUTIONALITY UNDER THE COMMERCE
OR SUPREMACY CLAUSE.  THE DECISION OF THE IDAHO SUPREME COURT IS
REVERSED AND THE CASE REMANDED TO THAT COURT FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

MR. JUSTICE BLACK DISSENTS. 

FN1  ALTHOUGH THE INVITATION FOR BIDS ISSUED BY THE GSA PROPOSED THE
ALTERNATIVE DELIVERY POINTS IT WAS DISCRETIONARY WITH EACH BIDDER AS TO
WHETHER OR NOT QUOTATIONS FOR EACH POINT WERE SUBMITTED. 

FN2  ON THE GROUND THAT THE TAX WAS NOT A "USE TAX" IN THE USUAL
SENSE, THE TRIAL JUDGE DECLINED THE OFFER OF PROOF AS TO WHAT OCCURRED
AFTER DELIVERY WHICH WAS TENDERED BY THE STATE TAX COLLECTOR.   THE
IDAHO SUPREME COURT CONCURRED, HOLDING THAT SUCH EVIDENCE WAS
IMMATERIAL DUE TO THE FACT THAT THE STATUS OF PHILLIPS PETROLEUM WAS
ONLY THAT OF A CONTRACTOR FOR THE AEC. 

FN3  THE SECTION PROVIDES, INTER ALIA:  "2.  MOTOR FUEL IMPORTED INTO
THIS STATE OTHER THAN THAT PLACED IN STORAGE AT REFINERIES OR PIPE LINE
TERMINALS IN THIS STATE SHALL BE CONSIDERED TO BE RECEIVED IMMEDIATELY
AFTER THE SAME IS UNLOADED AND BY THE PERSON WHO IS THE OWNER THEREOF
AT SUCH TIME IF SUCH PERSON IS A LICENSED DEALER; OTHERWISE SUCH MOTOR
FUEL SHALL BE CONSIDERED TO BE RECEIVED BY THE PERSON WHO OWNED SUCH
FUEL IMMEDIATELY PRIOR TO ITS BEING UNLOADED; PROVIDED, HOWEVER, MOTOR
FUELS SHIPPED OR BROUGHT INTO THIS STATE BY A QUALIFIED DEALER, WHICH
FUEL IS SOLD AND DELIVERED IN THIS STATE DIRECTLY TO A PERSON WHO IS
NOT THE HOLDER OF AN UNCANCELED DEALER PERMIT, SHALL BE CONSIDERED TO
HAVE BEEN RECEIVED BY THE DEALER SHIPPING OR BRINGING THE SAME INTO
THIS STATE; FURTHER PROVIDED THAT MOTOR FUEL WHICH IS IN ANY MANNER
SUPPLIED, SOLD OR FURNISHED TO ANY PERSON OR AGENCY, WHATSOEVER, NOT
THE HOLDER OF AN UNCANCELED IDAHO DEALER PERMIT, BY AN IDAHO LICENSED
DEALER, FOR IMPORTATION INTO THE STATE OF IDAHO FROM A POINT OF ORIGIN
OUTSIDE THE STATE, SHALL BE CONSIDERED TO BE RECEIVED BY THE IDAHO
LICENSED DEALER SO SUPPLYING, SELLING, OR FURNISHING SUCH MOTOR FUEL,
IMMEDIATELY AFTER THE IMPORTED MOTOR FUEL HAS BEEN UNLOADED IN THE
STATE OF IDAHO."   IDAHO CODE ANN. SEC. 49-1201(G) (SUPP. 1963). 

FN4  COMPARE RAILWAY EXPERSS AGENCY, INC. V. VIRGINIA, 347 U.S. 359,
369-372 (DISSENTING OPINION), WITH RAILWAY EXPRESS AGENCY, INC. V.
VIRGINIA, 358 U.S. 434, 440-441. 

FN5  LETTER FROM DON J. MCCLENAHAN, ASSISTANT ATTORNEY GENERAL OF THE
STATE OF IDAHO, TO BIGELOW BOYSEN, MAY 9, 1950.  THE CONCLUSION WAS
REACHED IN THIS OPINION THAT "THE ACT PLACES THE LEGAL INCIDENCE OF THE
TAX UPON THE DEALER  ...  AND NOT ON THE VENDEE OR CONSUMER."  A
DECISION BY THE COMPTROLLER GENERAL ALSO AGREES WITH THIS CONCLUSION. 
24 COMP. GEN. 163 (1944). 

FN6  BRIEF FOR THE APPELLEE, P. 5. 
..END :














HANNA V. PLUMER, EXECUTOR 380 U.S. 460 


NO. 171.  ARGUED JANUARY 21, 1965.  - DECIDED APRIL 26, 1965.  - 331
F.2D 157, REVERSED. 


IN A CIVIL ACTION IN A FEDERAL COURT WHERE JURISDICTION IS BASED UPON
DIVERSITY OF CITIZENSHIP, SERVICE OF PROCESS SHALL BE MADE IN THE
MANNER SET FORTH IN FEDERAL RULE OF CIVIL PROCEDURE 4(D)(1) RATHER THAN
IN THE MANNER PRESCRIBED BY STATE LAW. 

(A)  RULE 4(D)(1) IS AUTHORIZED BY THE RULES ENABLING ACT.  PP. 464
465. 

(B)  EVEN IF THERE WERE NO FEDERAL RULE OF CIVIL PROCEDURE MAKING IT
CLEAR THAT IN-HAND SERVICE IS NOT REQUIRED IN DIVERSITY ACTIONS, IT IS
DOUBTFUL THAT ERIE R. CO. V. TOMPKINS, 304 U.S. 64, AND THE LINE OF
CASES FOLLOWING IT WOULD HAVE OBLIGATED THE DISTRICT COURT TO FOLLOW
THE MASSACHUSETTS IN-HAND SERVICE PROCEDURE.  THE "OUTCOME
DETERMINATION" TEST OF GUARANTY TRUST CO. V. YORK, 326 U.S. 99, WAS
NEVER INTENDED TO BE A TALISMAN, BUT MUST BE READ IN LIGHT OF THE
POLICIES UNDERLYING THE ERIE RULE - DISCOURAGEMENT OF FORUM-SHOPPING
AND AVOIDANCE OF INEQUITABLE ADMINISTRATION OF THE LAWS.  PP. 466-469. 

(C)  IN ANY EVENT, THE RULE OF ERIE AND ITS PROGENY DOES NOT
CONSTITUTE THE APPROPRIATE TEST OF THE VALIDITY AND THEREFORE THE
APPLICABILITY OF A FEDERAL RULE OF CIVIL PROCEDURE.  PP. 469-474. 

(D)  RULE 4(D)(1) DOES NOT EXCEED THE CONSTITUTIONAL BOUNDS TO WHICH
THE ERIE OPINION ALLUDED.  THE CONSTITUTIONAL PROVISION FOR A FEDERAL
COURT SYSTEM CARRIES WITH IT CONGRESSIONAL POWER TO MAKE RULES
GOVERNING THE PRACTICE AND PLEADING IN FEDERAL COURTS.  PP. 471-472. 

HANNA V. PLUMER, EXECUTOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION TO BE DECIDED IS WHETHER, IN A CIVIL ACTION WHERE THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT IS BASED UPON
DIVERSITY OF CITIZENSHIP BETWEEN THE PARTIES, SERVICE OF PROCESS SHALL
BE MADE IN THE MANNER PRESCRIBED BY STATE LAW OR THAT SET FORTH IN RULE
4(D)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE. 

ON FEBRUARY 6, 1963, PETITIONER, A CITIZEN OF OHIO, FILED HER
COMPLAINT IN THE DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS,
CLAIMING DAMAGES IN EXCESS OF $10,000 FOR PERSONAL INJURIES RESULTING
FROM AN AUTOMOBILE ACCIDENT IN SOUTH CAROLINA, ALLEGEDLY CAUSED BY THE
NEGLIGENCE OF ONE LOUISE PLUMER OSGOOD, A MASSACHUSETTS CITIZEN
DECEASED AT THE TIME OF THE FILING OF THE COMPLAINT.  RESPONDENT, MRS.
OSGOOD'S EXECUTOR AND ALSO A MASSACHUSETTS CITIZEN, WAS NAMED AS
DEFENDANT.  ON FEBRUARY 8, SERVICE WAS MADE BY LEAVING COPIES OF THE
SUMMONS AND THE COMPLAINT WITH RESPONDENT'S WIFE AT HIS RESIDENCE,
CONCEDEDLY IN COMPLIANCE WITH RULE 4(D)(1), WHICH PROVIDES: 

"THE SUMMONS AND COMPLAINT SHALL BE SERVED TOGETHER.  THE PLAINTIFF
SHALL FURNISH THE PERSON MAKING SERVICE WITH SUCH COPIES AS ARE
NECESSARY.  SERVICE SHALL BE MADE AS FOLLOWS: 

"(1)  UPON AN INDIVIDUAL OTHER THAN AN INFANT OR AN INCOMPETENT
PERSON, BY DELIVERING A COPY OF THE SUMMONS AND OF THE COMPLAINT TO HIM
PERSONALLY OR BY LEAVING COPIES THEREOF AT HIS DWELLING HOUSE OR USUAL
PLACE OF ABODE WITH SOME PERSON OF SUITABLE AGE AND DISCRETION THEN
RESIDING THEREIN ...  ." 

RESPONDENT FILED HIS ANSWER ON FEBRUARY 26, ALLEGING, INTER ALIA,
THAT THE ACTION COULD NOT BE MAINTAINED BECAUSE IT HAD BEEN BROUGHT
"CONTRARY TO AND IN VIOLATION OF THE PROVISIONS OF MASSACHUSETTS
GENERAL LAWS (TER.  ED.)  CHAPTER 197, SECTION 9."  THAT SECTION
PROVIDES: 

"EXCEPT AS PROVIDED IN THIS CHAPTER, AN EXECUTOR OR ADMINISTRATOR
SHALL NOT BE HELD TO ANSWER TO AN ACTION BY A CREDITOR OF THE DECEASED
WHICH IS NOT COMMENCED WITHIN ONE YEAR FROM THE TIME OF HIS GIVING BOND
FOR THE PERFORMANCE OF HIS TRUST, OR TO SUCH AN ACTION WHICH IS
COMMENCED WITHIN SAID YEAR UNLESS BEFORE THE EXPIRATION THEREOF THE
WRIT IN SUCH ACTION HAS BEEN SERVED BY DELIVERY IN HAND UPON SUCH
EXECUTOR OR ADMINISTRATOR OR SERVICE THEREOF ACCEPTED BY HIM OR A
NOTICE STATING THE NAME OF THE ESTATE, THE NAME AND ADDRESS OF THE
CREDITOR, THE AMOUNT OF THE CLAIM AND THE COURT IN WHICH THE ACTION HAS
BEEN BROUGHT HAS BEEN FILED IN THE PROPER REGISTRY OF PROBATE  ...  ." 
MASS. GEN. LAWS ANN., C. 197, SEC.  9 (1958). 

ON OCTOBER 17, 1963, THE DISTRICT COURT GRANTED RESPONDENT'S MOTION
FOR SUMMARY JUDGMENT, CITING RAGAN V. MERCHANTS TRANSFER CO., 337 U.S.
530, AND GUARANTY TRUST CO. V. YORK, 326 U.S. 99, IN SUPPORT OF ITS
CONCLUSION THAT THE ADEQUACY OF THE SERVICE WAS TO BE MEASURED BY SEC.
9, WITH WHICH, THE COURT HELD, PETITIONER HAD NOT COMPLIED.  ON APPEAL,
PETITIONER ADMITTED NONCOMPLIANCE WITH SEC. 9, BUT ARGUED THAT RULE
4(D)(1) DEFINES THE METHOD BY WHICH SERVICE OF PROCESS IS TO BE
EFFECTED IN DIVERSITY ACTIONS.  THE COURT OF APPEALS FOR THE FIRST
CIRCUIT, FINDING THAT "RELATIVELY RECENT AMENDMENTS TO SEC. 9 EVINCE A
CLEAR LEGISLATIVE PURPOSE TO REQUIRE PERSONAL NOTIFICATION WITHIN THE
YEAR," (FN1) CONCLUDED THAT THE CONFLICT OF STATE AND FEDERAL RULES WAS
OVER "A SUBSTANTIVE RATHER THAN A PROCEDURAL MATTER," AND UNANIMOUSLY
AFFIRMED.  331 F.2D 157.  BECAUSE OF THE THREAT TO THE GOAL OF
UNIFORMITY OF FEDERAL PROCEDURE POSED BY THE DECISION BELOW, (FN2) WE
GRANTED CERTIORARI, 379 U.S. 813. 

WE CONCLUDE THAT THE ADOPTION OF RULE 4(D)(1), DESIGNED TO CONTROL
SERVICE OF PROCESS IN DIVERSITY ACTIONS, (FN3) NEITHER EXCEEDED THE
CONGRESSIONAL MANDATE EMBODIED IN THE RULES ENABLING ACT NOR
TRANSGRESSED CONSTITUTIONAL BOUNDS, AND THAT THE RULE IS THEREFORE THE
STANDARD AGAINST WHICH THE DISTRICT COURT SHOULD HAVE MEASURED THE
ADEQUACY OF THE SERVICE.  ACCORDINGLY, WE REVERSE THE DECISION OF THE
COURT OF APPEALS. 

THE RULES ENABLING ACT, 28 U.S.C. SEC. 2072 (1958 ED.), PROVIDES, IN
PERTINENT PART: 

"THE SUPREME COURT SHALL HAVE THE POWER TO PRESCRIBE, BY GENERAL
RULES, THE FORMS OF PROCESS, WRITS, PLEADINGS, AND MOTIONS, AND THE
PRACTICE AND PROCEDURE OF THE DISTRICT COURTS OF THE UNITED STATES IN
CIVIL ACTIONS. 

"SUCH RULES SHALL NOT ABRIDGE, ENLARGE OR MODIFY ANY SUBSTANTIVE
RIGHT AND SHALL PRESERVE THE RIGHT OF TRIAL BY JURY  ...  ." 

UNDER THE CASES CONSTRUING THE SCOPE OF THE ENABLING ACT, RULE 4(D)(1)
CLEARLY PASSES MUSTER.  PRESCRIBING THE MANNER IN WHICH A DEFENDANT IS
TO BE NOTIFIED THAT A SUIT HAS BEEN INSTITUTED AGAINST HIM, IT RELATES
TO THE "PRACTICE AND PROCEDURE OF THE DISTRICT COURTS."  CF. INSURANCE
CO. V. BANGS, 103 U.S. 435, 439. 

"THE TEST MUST BE WHETHER A RULE REALLY REGULATES PROCEDURE, - THE
JUDICIAL PROCESS FOR ENFORCING RIGHTS AND DUTIES RECOGNIZED BY
SUBSTATNTIVE LAW AND FOR JUSTLY ADMINISTERING REMEDY AND REDRESS FOR
DISREGARD OR INFRACTION OF THEM."  SIBBACH V. WILSON & CO., 312 U.S. 1,
14.  (FN4) 

IN MISSISSIPPI PUB. CORP. V. MURPHREE, 326 U.S. 438, THIS COURT
UPHELD RULE 4(F), WHICH PERMITS SERVICE OF A SUMMONS ANYWHERE WITHIN
THE STATE (AND NOT MERELY THE DISTRICT) IN WHICH A DISTRICT COURT
SITS: 

"WE THINK THAT RULE 4(F) IS IN HARMONY WITH THE ENABLING ACT  ...  .
UNDOUBTEDLY MOST ALTERATIONS OF THE RULES OF PRACTICE AND PROCEDURE MAY
AND OFTEN DO AFFECT THE RIGHTS OF LITIGANTS.  CONGRESS' PROHIBITION OF
ANY ALTERATION OF SUBSTANTIVE RIGHTS OF LITIGANTS WAS OBVIOUSLY NOT
ADDRESSED TO SUCH INCIDENTAL EFFECTS AS NECESSARILY ATTEND THE ADOPTION
OF THE PRESCRIBED NEW RULES OF PROCEDURE UPON THE RIGHTS OF LITIGANTS
WHO, AGREEABLY TO RULES OF PRACTICE AND PROCEDURE, HAVE BEEN BROUGHT
BEFORE A COURT AUTHORIZED TO DETERMINE THEIR RIGHTS.  SIBBACH V. WILSON
& CO., 312 U.S. 1, 11-14.  THE FACT THAT THE APPLICATION OF RULE 4(F)
WILL OPERATE TO SUBJECT PETITIONER'S RIGHTS TO ADJUDICATION BY THE
DISTRICT COURT FOR NORTHERN MISSISSIPPI WILL UNDOUBTEDLY AFFECT THOSE
RIGHTS.  BUT IT DOES NOT OPERATE TO ABRIDGE, ENLARGE OR MODIFY THE
RULES OF DECISION BY WHICH THAT COURT WILL ADJUDICATE ITS RIGHTS,"
ID., AT 445-446. 

THUS WERE THERE NO CONFLICTING STATE PROCEDURE, RULE 4(D)(1) WOULD
CLEARLY CONTROL.  NATIONAL RENTAL V. SZUKHENT, 375 U.S. 311, 316. 
HOWEVER, RESPONDENT, FOCUSING ON THE CONTRARY MASSACHUSETTS RULE, CALLS
TO THE COURT'S ATTENTION ANOTHER LINE OF CASES, A LINE WHICH - LIKE THE
FEDERAL RULES - HAD ITS BIRTH IN 1938.  ERIE R. CO. V. TOMPKINS, 304
U.S. 64, OVERRULING SWIFT V. TYSON, 16 PET. 1, HELD THAT FEDERAL COURTS
SITTING IN DIVERSITY CASES, WHEN DECIDING QUESTIONS OF "SUBSTANTIVE"
LAW, ARE BOUND BY STATE COURT DECISIONS AS WELL AS STATE STATUTES.  THE
BROAD COMMAND OF ERIE WAS THEREFORE IDENTICAL TO THAT OF THE ENABLING
ACT:  FEDERAL COURTS ARE TO APPLY STATE SUBSTANTIVE LAW AND FEDERAL
PROCEDURAL LAW.  HOWEVER, AS SUBSEQUENT CASES SHARPENED THE DISTINCTION
BETWEEN SUBSTANCE AND PROCEDURE, THE LINE OF CASES FOLLOWING ERIE
DIVERGED MARKEDLY FROM THE LINE CONSTRUING THE ENABLING ACT.  GUARANTY
TRUST CO. V. YORK, 326 U.S. 99, MADE IT CLEAR THAT ERIE-TYPE PROBLEMS
WERE NOT TO BE SOLVED BY REFERENCE TO ANY TRADITIONAL OR COMMON-SENSE
SUBSTANCE-PROCEDURE DISTINCTION: 

"AND SO THE QUESTION IS NOT WHETHER A STATUTE OF LIMITATIONS IS
DEEMED A MATTER OF 'PROCEDURE' IN SOME SENSE.  THE QUESTION IS  ...
DOES IT SIGNIFICANTLY AFFECT THE RESULT OF A LITIGATION FOR A FEDERAL
COURT TO DISREGARD A LAW OF A STATE THAT WOULD BE CONTROLLING IN AN
ACTION UPON THE SAME CLAIM BY THE SAME PARTIES IN A STATE COURT?"  326
U.S., AT 109.  (FN5) 

RESPONDENT, BY PLACING PRIMARY RELIANCE ON YORK AND RAGAN, SUGGESTS
THAT THE ERIE DOCTRINE ACTS AS A CHECK ON THE FEDERAL RULES OF CIVIL
PROCEDURE, THAT DESPITE THE CLEAR COMMAND OF RULE 4(D)(1), ERIE AND ITS
PROGENY DEMAND THE APPLICATION OF THE MASSACHUSETTS RULE.  REDUCED TO
ESSENTIALS, THE ARGUMENT IS:  (1) ERIE, AS REFINED IN YORK, DEMANDS
THAT FEDERAL COURTS APPLY STATE LAW WHENEVER APPLICATION OF FEDERAL LAW
IN ITS STEAD WILL ALTER THE OUTCOME OF THE CASE.  (2) IN THIS CASE, A
DETERMINATION THAT THE MASSACHUSETTS SERVICE REQUIREMENTS OBTAIN WILL
RESULT IN IMMEDIATE VICTORY FOR RESPONDENT.  IF, ON THE OTHER HAND, IT
SHOULD BE HELD THAT RULE 4(D)(1) IS APPLICABLE, THE LITIGATION WILL
CONTINUE, WITH POSSIBLE VICTORY FOR PETITIONER.  (3) THEREFORE, ERIE
DEMANDS APPLICATION OF THE MASSACHUSETTS RULE.  THE SYLLOGISM POSSESSES
AN APPEALING SIMPLICITY, BUT IS FOR SEVERAL REASONS INVALID. 

IN THE FIRST PLACE, IT IS DOUBTFUL THAT, EVEN IF THERE WERE NO
FEDERAL RULE MAKING IT CLEAR THAT IN-HAND SERVICE IS NOT REQUIRED IN
DIVERSITY ACTIONS, THE ERIE RULE WOULD HAVE OBLIGATED THE DISTRICT
COURT TO FOLLOW THE MASSACHUSETTS PROCEDURE.  "OUTCOME-DETERMINATION"
ANALYSIS WAS NEVER INTENDED TO SERVE AS A TALISMAN.  BYRD V. BLUE RIDGE
COOPERATIVE, 356 U.S. 525, 537.  INDEED, THE MESSAGE OF YORK ITSELF IS
THAT CHOICES BETWEEN STATE AND FEDERAL LAW ARE TO BE MADE NOT BY
APPLICATION OF ANY AUTOMATIC, "LITMUS PAPER" CRITERION, BUT RATHER BY
REFERENCE TO THE POLICIES UNDERLYING THE ERIE RULE.  GUARANTY TRUST CO.
V. YORK, SUPRA, AT 108-112.  (FN6) 

THE ERIE RULE IS ROOTED IN PART IN A REALIZATION THAT IT WOULD BE
UNFAIR FOR THE CHARACTER OR RESULT OF A LITIGATION MATERIALLY TO DIFFER
BECAUSE THE SUIT HAD BEEN BROUGHT IN A FEDERAL COURT. 

"DIVERSITY OF CITIZENSHIP JURISDICTION WAS CONFERRED IN ORDER TO
PREVENT APPREHENDED DISCRIMINATION IN STATE COURTS AGAINST THOSE NOT
CITIZENS OF THE STATE.  SWIFT V. TYSON INTRODUCED GRAVE DISCRIMINATION
BY NON-CITIZENS AGAINST CITIZENS.  IT MADE RIGHTS ENJOYED UNDER THE
UNWRITTEN 'GENERAL LAW' VARY ACCORDING TO WHETHER ENFORCEMENT WAS
SOUGHT IN THE STATE OR IN THE FEDERAL COURT; AND THE PRIVILEGE OF
SELECTING THE COURT IN WHICH THE RIGHT SHOULD BE DETERMINED WAS
CONFERRED UPON THE NON-CITIZEN.  THUS, THE DOCTRINE RENDERED IMPOSSIBLE
EQUAL PROTECTION OF THE LAW."  ERIE R. CO. V. TOMPKINS, SUPRA, AT 74
75.  (FN7) 

THE DECISION WAS ALSO IN PART A REACTION TO THE PRACTICE OF "FORUM
SHOPPING" WHICH HAD GROWN UP IN RESPONSE TO THE RULE OF SWIFT V.
TYSON.  304 U.S., AT 73-74.  (FN8)  THAT THE YORK TEST WAS AN ATTEMPT
TO EFFECTUATE THESE POLICIES IS DEMONSTRATED BY THE FACT THAT THE
OPINION FRAMED THE INQUIRY IN TERMS OF "SUBSTANTIAL" VARIATIONS BETWEEN
STATE AND FEDERAL LITIGATION.  326 U.S., AT 109.  NOT ONLY ARE
NONSUBSTANTIAL, OR TRIVIAL, VARIATIONS NOT LIKELY TO RAISE THE SORT OF
EQUAL PROTECTION PROBLEMS WHICH TROUBLED THE COURT IN ERIE; THEY ARE
ALSO UNLIKELY TO INFLUENCE THE CHOICE OF A FORUM.  THE "OUTCOME
DETERMINATION" TEST THEREFORE CANNOT BE READ WITHOUT REFERENCE TO THE
TWIN AIMS OF THE ERIE RULE:  DISCOURAGEMENT OF FORUM-SHOPPING AND
AVOIDANCE OF INEQUITABLE ADMINISTRATION OF THE LAWS.  (FN9) 

THE DIFFERENCE BETWEEN THE CONCLUSION THAT THE MASSACHUSETTS RULE IS
APPLICABLE, AND THE CONCLUSION THAT IT IS NOT, IS OF COURSE AT THIS
POINT "OUTCOME-DETERMINATIVE" IN THE SENSE THAT IF WE HOLD THE STATE
RULE TO APPLY, RESPONDENT PREVAILS, WHEREAS IF WE HOLD THAT RULE
4(D)(1) GOVERNS, THE LITIGATION WILL CONTINUE.  BUT IN THIS SENSE EVERY
PROCEDURAL VARIATION IS "OUTCOME-DETERMINATIVE."  FOR EXAMPLE, HAVING
BROUGHT SUIT IN A FEDERAL COURT, A PLAINTIFF CANNOT THEN INSIST ON THE
RIGHT TO FILE SUBSEQUENT PLEADINGS IN ACCORD WITH THE TIME LIMITS
APPLICABLE IN THE THE STATE COURTS, EVEN THOUGH ENFORCEMENT OF THE
FEDERAL TIMETABLE WILL, IF HE CONTINUES TO INSIST THAT HE MUST MEET
ONLY THE STATE TIME LIMIT, RESULT IN DETERMINATION OF THE CONTROVERSY
AGAINST HIM.  SO IT IS HERE.  THOUGH CHOICE OF THE FEDERAL OR STATE
RULE WILL AT THIS POINT HAVE A MARKED EFFECT UPON THE OUTCOME OF THE
LITIGATION, THE DIFFERENCE BETWEEN THE TWO RULES WOULD BE OF SCANT, IF
ANY, RELEVANCE TO THE CHOICE OF A FORUM.  PETITIONER, IN CHOOSING HER
FORUM, WAS NOT PRESENTED WITH A SITUATION WHERE APPLICATION OF THE
STATE RULE WOULD WHOLLY BAR RECOVERY; (FN10) RATHER, ADHERENCE TO THE
STATE RULE WOULD HAVE RESULTED ONLY IN ALTERING THE WAY IN WHICH
PROCESS WAS SERVED.  (FN11)  MOREOVER, IT IS DIFFICULT TO ARGUE THAT
PERMITTING SERVICE OF DEFENDANT'S WIFE TO TAKE THE PLACE OF IN-HAND
SERVICE OF DEFENDANT HIMSELF ALTERS THE MODE OF ENFORCEMENT OF STATE
CREATED RIGHTS IN A FASHION SUFFICIENTLY "SUBSTANTIAL" TO RAISE THE
SORT OF EQUAL PROTECTION PROBLEMS TO WHICH THE ERIE OPINION ALLUDED. 

THERE IS HOWEVER, A MORE FUNDAMENTAL FLAW IN RESPONDENT'S SYLLOGISM:
THE INCORRECT ASSUMPTION THAT THE RULE OF ERIE R. CO. V. TOMPKINS
CONSTITUTES THE APPROPRIATE TEST OF THE VALIDITY AND THEREFORE THE
APPLICABILITY OF A FEDERAL RULE OF CIVIL PROCEDURE.  THE ERIE RULE HAS
NEVER BEEN INVOKED TO VOID A FEDERAL RULE.  IT IS TRUE THAT THERE HAVE
BEEN CASES WHERE THIS COURT HAS HELD APPLICABLE A STATE RULE IN THE
FACE OF AN ARGUMENT THAT THE SITUATION WAS GOVERNED BY ONE OF THE
FEDERAL RULES.  BUT THE HOLDING OF EACH SUCH CASE WAS NOT THAT ERIE
COMMANDED DISPLACEMENT OF A FEDERAL RULE BY AN INCONSISTENT STATE RULE,
BUT RATHER THAT THE SCOPE OF THE FEDERAL RULE WAS NOT AS BROAD AS THE
LOSING PARTY URGED, AND THEREFORE, THERE BEING NO FEDERAL RULE WHICH
COVERED THE POINT IN DISPUTE, ERIE COMMANDED THE ENFORCEMENT OF STATE
LAW.    "RESPONDENT CONTENDS, IN THE FIRST PLACE, THAT THE CHARGE WAS
CORRECT BECAUSE OF THE FACT THAT RULE 8(C) OF THE RULES OF CIVIL
PROCEDURE MAKES CONTRIBUTORY NEGLIGENCE AN AFFIRMATIVE DEFENSE.  WE DO
NOT AGREE.  RULE 8(C) COVERS ONLY THE MANNER OF PLEADING.  THE QUESTION
OF THE BURDEN OF ESTABLISHING CONTRIBUTORY NEGLIGENCE IS A QUESTION OF
LOCAL LAW WHICH FEDERAL COURTS IN DIVERSITY OF CITIZENSHIP CASES (ERIE
R. CO. V. TOMPKINS, 304 U.S. 64) MUST APPLY."  PALMER V. HOFFMAN, 318
U.S. 109, 117.  (FN12)    (HERE, OF COURSE, THE CLASH IS UNAVOIDABLE;
RULE 4(D)(1) SAYS - IMPLICITLY, BUT WITH UNMISTAKABLE CLARITY - THAT IN
HAND SERVICE IS NOT REQUIRED IN FEDERAL COURTS.)  AT THE SAME TIME, IN
CASES ADJUDICATING THE VALIDITY OF FEDERAL RULES, WE HAVE NOT APPLIED
THE YORK RULE OR OTHER REFINEMENTS OF ERIE, BUT HAVE TO THIS DAY
CONTINUED TO DECIDE QUESTIONS CONCERNING THE SCOPE OF THE ENABLING ACT
AND THE CONSTITUTIONALITY OF SPECIFIC FEDERAL RULES IN LIGHT OF THE
DISTINCTION SET FORTH IN SIBBACH.  E.G., SCHLAGENHAUF V. HOLDER, 379
U.S. 104. 

NOR HAS THE DEVELOPMENT OF TWO SEPARATE LINES OF CASES BEEN
INADVERTENT.  THE LINE BETWEEN "SUBSTANCE" AND "PROCEDURE" SHIFTS AS
THE LEGAL CONTEXT CHANGES.  "EACH IMPLIES DIFFERENT VARIABLES DEPENDING
UPON THE PARTICULAR PROBLEM FOR WHICH IT IS USED."  GUARANTY TRUST CO.
V. YORK, SUPRA, AT 108; COOK, THE LOGICAL AND LEGAL BASES OF THE
CONFLICT OF LAWS, PP. 154-183 (1942).  IT IS TRUE THAT BOTH THE
ENABLING ACT AND THE ERIE RULE SAY, ROUGHLY, THAT FEDERAL COURTS ARE TO
APPLY STATE "SUBSTANTIVE" LAW AND FEDERAL "PROCEDURAL" LAW, BUT FROM
THAT IT NEED NOT FOLLOW THAT THE TESTS ARE IDENTICAL.  FOR THEY WERE
DESIGNED TO CONTROL VERY DIFFERENT SORTS OF DECISIONS.  WHEN A
SITUATION IS COVERED BY ONE OF THE FEDERAL RULES, THE QUESTION FACING
THE COURT IS A FAR CRY FROM THE TYPICAL, RELATIVELY UNGUIDED ERIE
CHOICE:  THE COURT HAS BEEN INSTRUCTED TO APPLY THE FEDERAL RULE, AND
CAN REFUSE TO DO SO ONLY IF THE ADVISORY COMMITTEE, THIS COURT, AND
CONGRESS ERRED IN THEIR PRIMA FACIE JUDGMENT THAT THE RULE IN QUESTION
TRANSGRESSES NEITHER THE TERMS OF THE ENABLING ACT NOR CONSTITUTIONAL
RESTRICTIONS.  (FN13) 

WE ARE REMINDED BY THE ERIE OPINION (FN14) THAT NEITHER CONGRESS NOR
THE FEDERAL COURTS CAN, UNDER THE GUISE OF FORMULATING RULES OF
DECISION FOR FEDERAL COURTS, FASHION RULES WHICH ARE NOT SUPPORTED BY A
GRANT OF FEDERAL AUTHORITY CONTAINED IN ARTICLE I OR SOME OTHER SECTION
OF THE CONSTITUTION; IN SUCH AREAS STATE LAW MUST GOVERN BECAUSE THERE
CAN BE NO OTHER LAW.  BUT THE OPINION IN ERIE, WHICH INVOLVED NO
FEDERAL RULE AND DEALT WITH A QUESTION WHICH WAS "SUBSTANTIVE" IN EVERY
TRADITIONAL SENSE (WHETHER THE RAILROAD OWED A DUTY OF CARE TO TOMPKINS
AS A TRESPASSER OR A LICENSEE), SURELY NEITHER SAID NOR IMPLIED THAT
MEASURES LIKE RULE 4(D)(1) ARE UNCONSTITUTIONAL.  FOR THE
CONSTITUTIONAL PROVISION FOR A FEDERAL COURT SYSTEM (AUGMENTED BY THE
NECESSARY AND PROPER CLAUSE) CARRIES WITH IT CONGRESSIONAL POWER TO
MAKE RULES GOVERNING THE PRACTICE AND PLEADING IN THOSE COURTS, WHICH
IN TURN INCLUDES A POWER TO REGULATE MATTERS WHICH, THOUGH FALLING
WITHIN THE UNCERTAIN AREA BETWEEN SUBSTANCE AND PROCEDURE, ARE
RATIONALLY CAPABLE OF CLASSIFICATION AS EITHER.  CF. M'CULLOCH V.
MARYLAND, 4 WHEAT.  316, 421.  NEITHER YORK NOR THE CASES FOLLOWING IT
EVER SUGGESTED THAT THE RULE THERE LAID DOWN FOR COPING WITH SITUATIONS
WHERE NO FEDERAL RULE APPLIES IS COEXTENSIVE WITH THE LIMITATION ON
CONGRESS TO WHICH ERIE HAD ADVERTED.  ALTHOUGH THIS COURT HAS NEVER
BEFORE BEEN CONFRONTED WITH A CASE WHERE THE APPLICABLE FEDERAL RULE IS
IN DIRECT COLLISION WITH THE LAW OF THE RELEVANT STATE, (FN15) COURTS
OF APPEALS FACED WITH SUCH CLASHES HAVE RIGHTLY DISCERNED THE
IMPLICATIONS OF OUR DECISIONS. 

"ONE OF THE SHAPING PURPOSES OF THE FEDERAL RULES IS TO BRING ABOUT
UNIFORMITY IN THE FEDERAL COURTS BY GETTING AWAY FROM LOCAL RULES. 
THIS IS ESPECIALLY TRUE OF MATTERS WHICH RELATE TO THE ADMINISTRATION
OF LEGAL PROCEEDINGS, AN AREA IN WHICH FEDERAL COURTS HAVE
TRADITIONALLY EXERTED STRONG INHERENT POWER, COMPLETELY ASIDE FROM THE
POWERS CONGRESS EXPRESSLY CONFERRED IN THE RULES.  THE PURPOSE OF THE
ERIE DOCTRINE, EVEN AS EXTENDED IN YORK AND RAGAN, WAS NEVER TO BOTTLE
UP FEDERAL COURTS WITH 'OUTCOME-DETERMINATIVE' AND 'INTEGRAL-RELATIONS'
STOPPERS - WHEN THERE ARE 'AFFIRMATIVE COUNTERVAILING FEDERAL
CONSIDERATIONS' AND WHEN THERE IS A CONGRESSIONAL MANDATE (THE RULES)
SUPPORTED BY CONSTITUTIONAL AUTHORITY."  LUMBERMEN'S MUTUAL CASUALTY
CO. V. WRIGHT, 322 F.2D 759, 764 (C.A. 5TH CIR. 1963).  (FN16) 

ERIE AND ITS OFFSPRING CAST NO DOUBT ON THE LONG-RECOGNIZED POWER OF
CONGRESS TO PRESCRIBE HOUSEKEEPING RULES FOR FEDERAL COURTS EVEN THOUGH
SOME OF THOSE RULES WILL INEVITABLY DIFFER FROM COMPARABLE STATE
RULES.  CF. HERON V. SOUTHERN PACIFIC CO., 283 U.S. 91.  "WHEN, BECAUSE
THE PLAINTIFF HAPPENS TO BE A NON-RESIDENT, SUCH A RIGHT IS ENFORCEABLE
IN A FEDERAL AS WELL AS IN A STATE COURT, 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. V. YORK,
SUPRA, AT 108; COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541, 555. 
THUS, THOUGH A COURT, IN MEASURING A FEDERAL RULE AGAINST THE STANDARDS
CONTAINED IN THE ENABLING ACT AND THE CONSTITUTION, NEED NOT WHOLLY
BLIND ITSELF TO THE DEGREE TO WHICH THE RULE MAKES THE CHARACTER AND
RESULT OF THE FEDERAL LITIGATION STRAY FROM THE COURSE IT WOULD FOLLOW
IN STATE COURTS, SIBBACH V. WILSON & CO., SUPRA, AT 13-14, IT CANNOT BE
FORGOTTEN THAT THE ERIE RULE, AND THE GUIDELINES SUGGESTED IN YORK,
WERE CREATED TO SERVE ANOTHER PURPOSE ALTOGETHER.  TO HOLD THAT A
FEDERAL RULE OF CIVIL PROCEDURE MUST CEASE TO FUNCTION WHENEVER IT
ALTERS THE MODE OF ENFORCING STATE-CREATED RIGHTS WOULD BE TO
DISEMBOWEL EITHER THE CONSTITUTION'S GRANT OF POWER OVER FEDERAL
PROCEDURE OR CONGRESS' ATTEMPT TO EXERCISE THAT POWER IN THE ENABLING
ACT.  (FN17)  RULE 4(D)(1) IS VALID AND CONTROLS THE INSTANT CASE. 
REVERSED. 

FN1  SECTION 9 IS IN PART A STATUTE OF LIMITATIONS, PROVIDING THAT AN
EXECUTOR NEED NOT "ANSWER TO AN ACTION  ...  WHICH IS NOT COMMENCED
WITHIN ONE YEAR FROM THE TIME OF HIS GIVING BOND  ...  ."  THIS PART OF
THE STATUTE, THE PURPOSE OF WHICH IS TO SPEED THE SETTLEMENT OF
ESTATES, SPAULDING V. MCCONNELL, 307 MASS. 144, 146, 29 N.E.2D 713, 715
(1940); DOYLE V. MOYLAN, 141 F.SUPP.  95 (D.C.D. MASS. 1956), IS NOT
INVOLVED IN THIS CASE, SINCE THE ACTION CLEARLY WAS TIMELY COMMENCED. 
(RESPONDENT FILED BOND ON MARCH 1, 1962; THE COMPLAINT WAS FILED
FEBRUARY 6, 1963; AND THE SERVICE - THE PROPRIETY OF WHICH IS IN
DISPUTE - WAS MADE ON FEBRUARY 8, 1963.)  331 F.2D, AT 159.  CF.
GUARANTY TRUST CO. V. YORK, SUPRA; RAGAN V. MERCHANTS TRANSFER CO.,
SUPRA. 

SERVICE OF PROCESS MUST BE MADE BY "DELIVERY IN HAND," ALTHOUGH THERE
ARE TWO ALTERNATIVES:  ACCEPTANCE OF SERVICE BY THE EXECUTOR, OR FILING
OF A NOTICE OF CLAIM, THE COMPONENTS OF WHICH ARE SET OUT IN THE
STATUTE, IN THE APPROPRIATE PROBATE COURT.  THE PURPOSE OF THIS PART OF
THE STATUTE, WHICH IS INVOLVED HERE, IS, AS THE COURT BELOW NOTED, TO
INSURE THAT EXECUTORS WILL RECEIVE ACTUAL NOTICE OF CLAIMS.  PARKER V.
RICH, 297 MASS. 111, 113-114, 8 N.E.2D 345, 347 (1937).  ACTUAL NOTICE
IS OF COURSE ALSO THE GOAL OF RULE 4(D)(1); HOWEVER, THE FEDERAL RULE
REFLECTS A DETERMINATION THAT THIS GOAL CAN BE ACHIEVED BY A METHOD
LESS CUMBERSOME THAN THAT PRESCRIBED IN SEC. 9.  IN THIS CASE THE GOAL
SEEMS TO HAVE BEEN ACHIEVED; ALTHOUGH THE AFFIDAVIT FILED BY RESPONDENT
IN THE DISTRICT COURT ASSERTS THAT HE HAD NOT BEEN SERVED IN HAND NOR
HAD HE ACCEPTED SERVICE, IT DOES NOT ALLEGE LACK OF ACTUAL NOTICE. 

FN2  THERE ARE A NUMBER OF STATE SERVICE REQUIREMENTS WHICH WOULD NOT
NECESSARILY BE SATISFIED BY COMPLIANCE WITH RULE 4(D)(1).  SEE, E.G.,
CAL. CIV. PROC. CODE SEC. 4118; IDAHO CODE ANN. SEC. 5-507 7 (1948);
ILL. REV. STAT., C. 110, SEC. 13.2 (1963); KY. REV. STAT., RULES CIV.
PROC., RULE 4.04 (1962); MD. ANN. CODE, RULES PROC., RULE 104B (1963);
MICH. REV. JUD.  ACT SEC. 600.1912 (1961); N.C. GEN. STAT. SEC. 1-94
(1953); S.D. CODE SEC. 33.0807(8) (SUPP.  1960); TENN. CODE ANN. SEC.
20-214 (1955). 

FN3  "THESE RULES GOVERN THE PROCEDURE IN THE UNITED STATES DISTRICT
COURTS IN ALL SUITS OF A CIVIL NATURE WHETHER COGNIZABLE AS CASES AT
LAW OR IN EQUITY, WITH THE EXCEPTIONS STATED IN RULE 81 ...  ."  FED.
RULES CIV. PROC. 1. 

THIS CASE DOES NOT COME WITHIN ANY OF THE EXCEPTIONS NOTED IN RULE
81. 

FN4  SEE ALSO SCHLAGENHAUF V. HOLDER, 379 U.S. 104, 112-114. 

FN5  SEE ALSO RAGAN V. MERCHANTS TRANSFER CO., SUPRA; WOODS V.
INTERSTATE REALTY CO., 337 U.S. 535; BERNHARDT V. POLYGRAPHIC CO., 350
U.S. 198, 203-204, 207-208; CF. BYRD V. BLUE RIDGE COOPERATIVE, 356
U.S. 525. 

FN6  SEE IOVINO V. WATERSON, 274 F.2D 41, 46-47 (C.A.2D CIR. 1959),
CERT. DENIED SUB NOM.  CARLIN V. IOVINO, 362 U.S. 949. 

FN7  SEE ALSO KLAXON CO. V. STENTOR CO., 313 U.S. 487, 496; WOODS V.
INTERSTATE REALTY CO., SUPRA, NOTE 5, AT 538. 

FN8  CF. BLACK & WHITE TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., 276
U.S. 518. 

FN9  THE COURT OF APPEALS SEEMED TO FRAME THE INQUIRY IN TERMS OF HOW
"IMPORTANT" SEC. 9 IS TO THE STATE.  IN SUPPORT OF ITS SUGGESTION THAT
SEC. 9 SERVES SOME INTEREST THE STATE REGARDS AS VITAL TO ITS CITIZENS,
THE COURT NOTED THAT SOMETHING LIKE SEC. 9 HAS BEEN ON THE BOOKS IN
MASSACHUSETTS A LONG TIME, THAT SEC. 9 HAS BEEN AMENDED A NUMBER OF
TIMES, AND THAT SEC. 9 IS DESIGNED TO MAKE SURE THAT EXECUTORS RECEIVE
ACTUAL NOTICE.  SEE NOTE 1, SUPRA.  THE APPARENT LACK OF RELATION AMONG
THESE THREE OBSERVATIONS IS NOT SURPRISING, BECAUSE IT IS NOT CLEAR TO
WHAT SORT OF QUESTION THE COURT OF APPEALS WAS ADDRESSING ITSELF.  ONE
CANNOT MEANINGFULLY ASK HOW IMPORTANT SOMETHING IS WITHOUT FIRST ASKING
"IMPORTANT FOR WHAT PURPOSE?"  ERIE AND ITS PROGENY MAKE CLEAR THAT
WHEN A FEDERAL COURT SITTING IN A DIVERSITY CASE IS FACED WITH A
QUESTION OF WHETHER OR NOT TO APPLY STATE LAW, THE IMPORTANCE OF A
STATE RULE IS INDEED RELEVANT, BUT ONLY IN THE CONTEXT OF ASKING
WHETHER APPLICATION OF THE RULE WOULD MAKE SO IMPORTANT A DIFFERENCE TO
THE CHARACTER OR RESULT OF THE LITIGATION THAT FAILURE TO ENFORCE IT
WOULD UNFAIRLY DISCRIMINATE AGAINST CITIZENS FROM THE FORUM STATE, OR
WHETHER APPLICATION OF THE RULE WOULD HAVE SO IMPORTANT AN EFFECT UPON
THE FORTUNES OF ONE OR BOTH OF THE LITIGANTS THAT FAILURE TO ENFORCE IT
WOULD BE LIKELY TO CAUSE A PLAINTIFF TO CHOOSE THE FEDERAL COURT. 

FN10  SEE GUARANTY TRUST CO. V. YORK, SUPRA, AT 108-109; RAGAN V.
MERCHANTS TRANSFER CO., SUPRA, AT 532; WOODS V. INTERSTATE REALTY CO.,
SUPRA, NOTE 5, AT 538. 

SIMILARLY, A FEDERAL COURT'S REFUSAL TO ENFORCE THE NEW JERSEY RULE
INVOLVED IN COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541, REQUIRING THE
POSTING OF SECURITY BY PLAINTIFFS IN STOCKHOLDERS' DERIVATIVE ACTIONS,
MIGHT WELL IMPEL A STOCKHOLDER TO CHOOSE TO BRING SUIT IN THE FEDERAL,
RATHER THAN THE STATE, COURT. 

FN11  CF. MONARCH INSURANCE CO. OF OHIO V. SPACH, 281 F.2D 401, 412
(C.A. 5TH CIR. 1960).  WE CANNOT SERIOUSLY ENTERTAIN THE THOUGHT THAT
ONE SUING AN ESTATE WOULD BE LED TO CHOOSE THE FEDERAL COURT BECAUSE OF
A BELIEF THAT ADHERENCE TO RULE 4(D)(1) IS LESS LIKELY TO GIVE THE
EXECUTOR ACTUAL NOTICE THAN SEC. 9, AND THEREFORE MORE LIKELY TO
PRODUCE A DEFAULT JUDGMENT.  RULE 4(D)(1) IS WELL DESIGNED TO GIVE
ACTUAL NOTICE, AS IT DID IN THIS CASE.  SEE NOTE 1, SUPRA. 

FN12  TO THE SAME EFFECT, SEE RAGAN V. MERCHANTS TRANSFER CO., SUPRA;
COHEN V. BENEFICIAL LOAN CORP., SUPRA, NOTE 10, AT 556; ID., AT 557
(DOUGLAS, J., DISSENTING); CF. BERNHARDT V. POLYGRAPHIC CO., SUPRA,
NOTE 5, AT 201-202; SEE GENERALLY IOVINO V. WATERSON, SUPRA, NOTE 6, AT
47-48. 

FN13  SIBBACH V. WILSON & CO., SUPRA, AT 13-15; SEE APPOINTMENT OF
COMMITTEE TO DRAFT UNIFIED SYSTEM OF EQUITY AND LAW RULES, 295 U.S.
774; ORDERS RE RULES OF PROCEDURE, 302 U.S. 783; LETTER OF SUBMITTAL,
308 U.S. 649; 1A MOORE, FEDERAL PRACTICE PARA. 0.501(2), AT 5027-5028
(2D ED. 1961). 

FN14  ERIE R. CO. V. TOMPKINS, SUPRA, AT 77-79; CF. BERNHARDT V.
POLYGRAPHIC CO., SUPRA, NOTE 5, AT 202; SIBBACH V. WILSON & CO., SUPRA,
AT 10; GUARANTY TRUST CO. V. YORK, SUPRA, AT 105. 

FN15  IN SIBBACH V. WILSON & CO., SUPRA, THE LAW OF THE FORUM STATE
(ILLINOIS) FORBAD THE SORT OF ORDER AUTHORIZED BY RULE 35.  HOWEVER,
SIBBACH WAS DECIDED BEFORE KLAXON CO. V. STENTOR CO., SUPRA, NOTE 7,
AND THE SIBBACH OPINION MAKES CLEAR THAT THE COURT WAS PROCEEDING ON
THE ASSUMPTION THAT IF THE LAW OF ANY STATE WAS RELEVANT, IT WAS THE
LAW OF THE STATE WHERE THE TORT OCCURRED (INDIANA), WHICH, LIKE RULE
35, MADE PROVISION FOR SUCH ORDERS.  312 U.S., AT 6-7, 10-11. 

FN16  TO THE SAME EFFECT, SEE D'ONOFRIO CONSTRUCTION CO. V. RECON
CO., 255 F.2D 904, 909-910 (C.A. 1ST CIR. 1958). 

FN17  MISSISSIPPI PUB. CORP. V. MURPHREE, SUPRA, AT 445-446; IOVINO
V. WATERSON, SUPRA, NOTE 6, AT 46. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN, CONCURRING. 

IT IS UNQUESTIONABLY TRUE THAT UP TO NOW ERIE AND THE CASES FOLLOWING
IT HAVE NOT SUCCEEDED IN ARTICULATING A WORKABLE DOCTRINE GOVERNING
CHOICE OF LAW IN DIVERSITY ACTIONS.  I RESPECT THE COURT'S EFFORT TO
CLARIFY THE SITUATION IN TODAY'S OPINION.  HOWEVER, IN DOING SO I THINK
IT HAS MISCONCEIVED THE CONSTITUTIONAL PREMISES OF ERIE AND HAS FAILED
TO DEAL ADEQUATELY WITH THOSE PAST DECISIONS UPON WHICH THE COURTS
BELOW RELIED.    ERIE WAS SOMETHING MORE THAN AN OPINION WHICH WORRIED
ABOUT "FORUM-SHOPPING AND AVOIDANCE OF INEQUITABLE ADMINISTRATION OF
THE LAWS," ANTE, P. 468, ALTHOUGH TO BE SURE THESE WERE IMPORTANT
ELEMENTS OF THE DECISION.  I HAVE ALWAYS REGARDED THAT DECISION AS ONE
OF THE MODERN CORNERSTONES OF OUR FEDERALISM, EXPRESSING POLICIES THAT
PROFOUNDLY TOUCH THE ALLOCATION OF JUDICIAL POWER BETWEEN THE STATE AND
FEDERAL SYSTEMS.  ERIE RECOGNIZED THAT THERE SHOULD NOT BE TWO
CONFLICTING SYSTEMS OF LAW CONTROLLING THE PRIMARY ACTIVITY OF
CITIZENS, FOR SUCH ALTERNATIVE GOVERNING AUTHORITY MUST NECESSARILY
GIVE RISE TO A DEBILITATING UNCERTAINTY IN THE PLANNING OF EVERYDAY
AFFAIRS.  (FN1)  AND IT RECOGNIZED THAT THE SCHEME OF OUR CONSTITUTION
ENVISIONS AN ALLOCATION OF LAW-MAKING FUNCTIONS BETWEEN STATE AND
FEDERAL LEGISLATIVE PROCESSES WHICH IS UNDERCUT IF THE FEDERAL
JUDICIARY CAN MAKE SUBSTANTIVE LAW AFFECTING STATE AFFAIRS BEYOND THE
BOUNDS OF CONGRESSIONAL LEGISLATIVE POWERS IN THIS REGARD.  THUS, IN
DIVERSITY CASES ERIE COMMANDS THAT IT BE THE STATE LAW GOVERNING
PRIMARY PRIVATE ACTIVITY WHICH PREVAILS. 

THE SHORTHAND FORMULATIONS WHICH HAVE APPEARED IN SOME PAST DECISIONS
ARE PRONE TO CARRY UNTOWARD RESULTS THAT FREQUENTLY ARISE FROM
OVERSIMPLIFICATION.  THE COURT IS QUITE RIGHT IN STATING THAT THE
"OUTCOME-DETERMINATIVE" TEST OF GUARANTY TRUST CO. V. YORK, 326 U.S.
99, IF TAKEN LITTERALLY, PROVES TOO MUCH, FOR ANY RULE, NO MATTER HOW
CLEARLY "PROCEDURAL," CAN AFFECT THE OUTCOME OF LITIGATION IF IT IS NOT
OBEYED.  IN TURNING FROM THE "OUTCOME" TEST OF YORK BACK TO THE
UNADORNED FORUM-SHOPPING RATIONALE OF ERIE, HOWEVER, THE COURT FALLS
PREY TO LIKE OVERSIMPLIFICATION, FOR A SIMPLE FORUM-SHOPPING RULE ALSO
PROVES TOO MUCH; LITIGANTS OFTEN CHOOSE A FEDERAL FORUM MERELY TO
OBTAIN WHAT THEY CONSIDER THE ADVANTAGES OF THE FEDERAL RULES OF CIVIL
PROCEDURE OR TO TRY THEIR CASES BEFORE A SUPPOSEDLY MORE FAVORABLE
JUDGE.  TO MY MIND THE PROPER LINE OF APPROACH IN DETERMINING WHETHER
TO APPLY A STATE OR A FEDERAL RULE, WHETHER "SUBSTANTIVE" OR
"PROCEDURAL," IS TO STAY CLOSE TO BASIC PRINCIPLES BY INQUIRING IF THE
CHOICE OF RULE WOULD SUBSTANTIALLY AFFECT THOSE PRIMARY DECISIONS
RESPECTING HUMAN CONDUCT WHICH OUR CONSTITUTIONAL SYSTEM LEAVES TO
STATE REGULATION.  (FN2)  IF SO, ERIE AND THE CONSTITUTION REQUIRE THAT
THE STATE RULE PREVAIL, EVEN IN THE FACE OF A CONFLICTING FEDERAL
RULE. 

THE COURT WEAKENS, IF INDEED IT DOES NOT SUBMERGE, THIS BASIC
PRINCIPLE BY FINDING, IN EFFECT, A GRANT OF SUBSTANTIVE LEGISLATIVE
POWER IN THE CONSTITUTIONAL PROVISION FOR A FEDERAL COURT SYSTEM
(COMPARE SWIFT V. TYSON, 16 PET. 1 , AND THROUGH IT, SETTING UP THE
FEDERAL RULES AS A BODY OF LAW INVIOLATE. 

"THE CONSTITUTIONAL PROVISION FOR A FEDERAL COURT SYSTEM  ...
CARRIES WITH IT CONGRESSIONAL POWER  ...  TO REGULATE MATTERS WHICH,
THOUGH FALLING WITHIN THE UNCERTAIN AREA BETWEEN SUBSTANCE AND
PROCEDURE, ARE RATIONALLY CAPABLE OF CLASSIFICATION AS EITHER."  ANTE,
P. 472. 

SO LONG AS A REASONABLE MAN COULD CHARACTERIZE ANY DULY ADOPTED
FEDERAL RULE AS "PROCEDURAL," THE COURT, UNLESS I MISAPPREHEND WHAT IS
SAID, WOULD HAVE IT APPLY NO MATTER HOW SERIOUSLY IT FRUSTRATED A
STATE'S SUBSTANTIVE REGULATION OF THE PRIMARY CONDUCT AND AFFAIRS OF
ITS CITIZENS.  SINCE THE MEMBERS OF THE ADVISORY COMMITTEE, THE
JUDICIAL CONFERENCE, AND THIS COURT WHO FORMULATED THE FEDERAL RULES
ARE PRESUMABLY REASONABLE MEN, IT FOLLOWS THAT THE INTEGRITY OF THE
FEDERAL RULES IS ABSOLUTE.  WHEREAS THE UNADULTERATED OUTCOME AND FORUM
SHOPPING TESTS MAY ERR TOO FAR TOWARD HONORING STATE RULES, I SUBMIT
THAT THE COURT'S "ARGUABLY PROCEDURAL, ERGO CONSTITUTIONAL" TEST MOVES
TOO FAST AND FAR IN THE OTHER DIRECTION. 

THE COURTS BELOW RELIED UPON THIS COURT'S DECISIONS IN RAGAN V.
MERCHANTS TRANSFER CO., 337 U.S. 530, AND COHEN V. BENEFICIAL LOAN
CORP., 337 U.S. 541.  THOSE CASES DESERVE MORE ATTENTION THAN THIS
COURT HAS GIVEN THEM, PARTICULARLY RAGAN WHICH, IF STILL GOOD LAW,
WOULD IN MY OPINION CALL FOR AFFIRMANCE OF THE RESULT REACHED BY THE
COURT OF APPEALS.  FURTHER, A DISCUSSION OF THESE TWO CASES WILL SERVE
TO ILLUMINATE THE "DIVERSITY" THESIS I AM ADVOCATING.   IN RAGAN A
KANSAS STATUTE OF LIMITATIONS PROVIDED THAT AN ACTION WAS DEEMED
COMMENCED WHEN SERVICE WAS MADE ON THE DEFENDANT.  DESPITE FEDERAL RULE
3 WHICH PROVIDES THAT AN ACTION COMMENCES WITH THE FILING OF THE
COMPLAINT, THE COURT HELD THAT FOR PURPOSES OF THE KANSAS STATUTE OF
LIMITATIONS A DIVERSITY TORT ACTION COMMENCED ONLY WHEN SERVICE WAS
MADE UPON THE DEFENDANT.  THE EFFECT OF THIS HOLDING WAS THAT ALTHOUGH
THE PLAINTIFF HAD FILED HIS FEDERAL COMPLAINT WITHIN THE STATE PERIOD
OF LIMITATIONS, HIS ACTION WAS BARRED BECAUSE THE FEDERAL MARSHAL DID
NOT SERVE A SUMMONS ON THE DEFENDANT UNTIL AFTER THE LIMITATIONS PERIOD
HAD RUN.  I THINK THAT THE DECISION WAS WRONG.  AT MOST, APPLICATION OF
THE FEDERAL RULE WOULD HAVE MEANT THAT POTENTIAL KANSAS TORT DEFENDANTS
WOULD HAVE TO DEFER FOR A FEW DAYS THE SATISFACTION OF KNOWING THAT
THEY HAD NOT BEEN SUED WITHIN THE LIMITATIONS PERIOD.  THE CHOICE OF
THE FEDERAL RULE WOULD HAVE HAD NO EFFECT ON THE PRIMARY STATES OF
PRIVATE ACTIVITY FROM WHICH TORTS ARISE, AND ONLY THE MOST MINIMAL
EFFECT ON BEHAVIOR FOLLOWING THE COMMISSION OF THE TORT.  IN SUCH
CIRCUMSTANCES THE INTEREST OF THE FEDERAL SYSTEM IN PROCEEDING UNDER
ITS OWN RULES SHOULD HAVE PREVAILED. 

COHEN V. BENEFICIAL LOAN CORP. HELD THAT A FEDERAL DIVERSITY COURT
MUST APPLY A STATE STATUTE REQUIRING A SMALL STOCKHOLDER IN A
STOCKHOLDER DERIVATIVE SUIT TO POST A BOND SECURING PAYMENT OF DEFENSE
COSTS AS A CONDITION TO PROSECUTING AN ACTION.  SUCH A STATUTE IS NOT
"OUTCOME DETERMINATIVE"; THE PLAINTIFF CAN WIN WITH OR WITHOUT IT.  THE
COURT NOW RATIONALIZES THE CASE ON THE GROUND THAT THE STATUTE MIGHT
AFFECT THE PLAINTIFF'S CHOICE OF FORUM (ANTE, P. 469, N. 10), BUT AS
HAS BEEN POINTED OUT, A SIMPLE FORUM-SHOPPING TEST PROVES TOO MUCH. 
THE PROPER VIEW OF COHEN IS, IN MY OPINION, THAT THE STATUTE WAS MEANT
TO INHIBIT SMALL STOCKHOLDERS FROM INSTITUTING "STRIKE SUITS," AND THUS
IT WAS DESIGNED AND COULD BE EXPECTED TO HAVE A SUBSTANTIAL IMPACT ON
PRIVATE PRIMARY ACTIVITY.  ANYONE WHO WAS AT THE TRIAL BAR DURING THE
PERIOD WHEN COHEN AROSE CAN APPRECIATE THE STRONG STATE POLICY
REFLECTED IN THE STATUTE.  I THINK IT WHOLLY LEGITIMATE TO VIEW FEDERAL
RULE 23 AS NOT PURPORTING TO DEAL WITH THE PROBLEM.  BUT EVEN HAD THE
FEDERAL RULES PURPORTED TO DO SO, AND IN SO DOING PROVIDED A
SUBSTANTIALLY LESS EFFECTIVE DETERRENT TO STRIKE SUITS, I THINK THE
STATE RULE SHOULD STILL HAVE PREVAILED.  THAT IS WHERE I BELIEVE THE
COURT'S VIEW DIFFERS FROM MINE; FOR THE COURT ATTRIBUTES SUCH
OVERRIDING FORCE TO THE FEDERAL RULES THAT IT IS HARD TO THINK OF A
CASE WHERE A CONFLICTING STATE RULE WOULD BE ALLOWED TO OPERATE, EVEN
THOUGH THE STATE RULE REFLECTED POLICY CONSIDERATIONS WHICH, UNDER
ERIE, WOULD LIE WITHIN THE REALM OF STATE LEGISLATIVE AUTHORITY. 

IT REMAINS TO APPLY WHAT HAS BEEN SAID TO THE PRESENT CASE.  THE
MASSACHUSETTS RULE PROVIDES THAT AN EXECUTOR NEED NOT ANSWER SUITS
UNLESS IN-HAND SERVICE WAS MADE UPON HIM OR NOTICE OF THE ACTION WAS
FILED IN THE PROPER REGISTRY OF PROBATE WITHIN ONE YEAR OF HIS GIVING
BOND.  THE EVIDENT INTENT OF THIS STATUTE IS TO PERMIT AN EXECUTOR TO
DISTRIBUTE THE ESTATE WHICH HE IS ADMINISTERING WITHOUT FEAR THAT
FURTHER LIABILITIES MAY BE OUTSTANDING FOR WHICH HE COULD BE HELD
PERSONALLY LIABLE.  IF THE FEDERAL DISTRICT COURT IN MASSACHUSETTS
APPLIES RULE 4(D)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE INSTEAD OF
THE MASSACHUSETTS SERVICE RULE, WHAT EFFECT WOULD THAT HAVE ON THE
SPEED AND ASSURANCE WITH WHICH ESTATES ARE DISTRIBUTED?  AS I SEE IT,
THE EFFECT WOULD NOT BE SUBSTANTIAL.  IT WOULD MEAN SIMPLY THAT AN
EXECUTOR WOULD HAVE TO CHECK AT HIS OWN HOUSE OR THE FEDERAL COURTHOUSE
AS WELL AS THE REGISTRY OF PROBATE BEFORE HE COULD DISTRIBUTE THE
ESTATE WITH IMPUNITY.  AS THIS DOES NOT SEEM ENOUGH TO GIVE RISE TO ANY
REAL IMPINGEMENT ON THE VITALITY OF THE STATE POLICY WHICH THE
MASSACHUSETTS RULE IS INTENDED TO SERVE, I CONCUR IN THE JUDGMENT OF
THE COURT. 

FN1  SINCE THE RULES INVOLVED IN THE PRESENT CASE ARE PARALLEL RATHER
THAN CONFLICTING, THIS FIRST RATIONALE DOES NOT COME INTO PLAY HERE. 

FN2  SEE HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM
678. 

BYRD V. BLUE RIDGE COOP., INC., 356 U.S. 525, 536-540, INDICATED THAT
STATE PROCEDURES WOULD APPLY IF THE STATE HAD MANIFESTED A PARTICULARLY
STRONG INTEREST IN THEIR EMPLOYMENT.  COMPARE DICE V. AKRON, C.&Y.R.
CO., 342 U.S. 359.  HOWEVER, THIS APPROACH MAY NOT BE OF CONSTITUTIONAL
PROPORTIONS. 
..END :
























DOMBROWSKI V. PFISTER, CHAIRMAN, JOINT LEGISLATIVE COMMITTEE ON UN
AMERICAN ACTIVITIES OF THE LOUISIANA LEGISLATURE 380 U.S. 479 


NO. 52.  ARGUED JANUARY 25, 1965.  - DECIDED APRIL 26, 1965.  - 227 F.
SUPP. 556, REVERSED AND REMANDED. 


APPELLANTS, A CIVIL RIGHTS ORGANIZATION AND ITS EXECUTIVE DIRECTOR,
BROUGHT SUIT IN FEDERAL DISTRICT COURT, IN WHICH OTHER INDIVIDUALS
LATER JOINED, FOR INJUNCTIVE AND DECLARATORY RELIEF TO RESTRAIN
APPELLEES FROM PROSECUTING OR THREATENING TO PROSECUTE THEM UNDER
LOUISIANA'S SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW AND
COMMUNIST PROPAGANDA CONTROL LAW, WHICH THEY ALLEGED VIOLATED THEIR
RIGHTS OF FREE EXPRESSION UNDER THE FIRST AND FOURTEENTH AMENDMENTS. 
APPELLANTS CONTENDED THAT THE STATUTES WERE EXCESSIVELY BROAD AND
SUSCEPTIBLE OF APPLICATION IN VIOLATION OF THOSE RIGHTS, AND WERE BEING
USED BY APPELLEES IN BAD FAITH, NOT TO SECURE VALID CONVICTIONS, BUT TO
DETER APPELLANTS' CIVIL RIGHTS EFFORTS.  APPELLANTS ALLEGED AND OFFERED
TO PROVE THE ARREST OF THE INDIVIDUAL APPELLANTS UNDER THE STATUTES,
THE RAIDING OF THEIR OFFICES AND ILLEGAL SEIZURE OF THEIR RECORDS, WITH
CONTINUED THREATS OF PROSECUTION AFTER INVALIDATION BY A STATE COURT OF
THE ARRESTS AND SEIZURE OF EVIDENCE PRECEDING THIS ACTION.  A THREE
JUDGE DISTRICT COURT DISMISSED THE COMPLAINT FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF COULD BE GRANTED, ALSO HOLDING THAT ABSTENTION
WAS APPROPRIATE PENDING A POSSIBLE NARROWING CONSTRUCTION BY THE STATE
COURTS WHICH WOULD AVOID UNNECESSARY CONSTITUTIONAL ADJUDICATION. 
THEREAFTER, APPELLANTS ALLEGED, THE INDIVIDUAL APPELLANTS WERE INDICTED
UNDER THE SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW.  THEY ALSO
CLAIMED THAT THERE WAS NO PROSPECT OF FINAL STATE ADJUDICATIONS EITHER
UNDER THOSE INDICTMENTS OR UNDER THREATENED ADDITIONAL PROSECUTIONS. 
HELD: 

1.  THE MERE POSSIBILITY OF ERRONEOUS INITIAL APPLICATION OF
CONSTITUTIONAL STANDARDS BY A STATE COURT WILL NOT ORDINARILY
CONSTITUTE IRREPARABLE INJURY WARRANTING FEDERAL INTERFERENCE WITH A
GOOD-FAITH PROSECUTION AND THE ADJUDICATION DURING ITS COURSE OF
CONSTITUTIONAL DEFENSES.  PP. 484-485. 

2.  BUT EQUITABLE RELIEF WILL BE GRANTED TO PREVENT A SUBSTANTIAL
LOSS OR IMPAIRMENT OF FREEDOMS OF EXPRESSION RESULTING FROM PROSECUTION
UNDER AN EXCESSIVELY BROAD STATUTE REGULATING EXPRESSION.  PP. 485
489. 

(A)  DEFENSE OF A CRIMINAL PROSECUTION WILL NOT GENERALLY ASSURE
AMPLE VINDICATION OF FIRST AMENDMENT RIGHTS.  BAGGETT V. BULLITT, 377
U.S. 360, FOLLOWED.  PP. 485-486. 

(B)  A CHILLING EFFECT UPON FIRST AMENDMENT RIGHTS MIGHT RESULT FROM
SUCH PROSECUTION REGARDLESS OF ITS PROSPECTS OF SUCCESS OR FAILURE, AS
IS INDICATED BY APPELLANTS' REPRESENTATIONS OF THE ACTIONS TAKEN UNDER
THE STATUTES.  PP. 487-489. 

3.  THE ABSTENTION DOCTRINE IS INAPPROPRIATE WHERE A STATUTE IS
JUSTIFIABLY ATTACKED ON ITS FACE, OR AS APPLIED FOR THE PURPOSE OF
DISCOURAGING PROTECTED ACTIVITIES.  PP. 489-491. 

(A)  THE STATE COURT'S ULTIMATE INTERPRETATION OF A STATUTE WOULD BE
IRRELEVANT TO MEET THE CLAIM THAT IT WAS BEING APPLIED TO DISCOURAGE
CIVIL RIGHTS ACTIVITIES.  P. 490. 

(B)  ABSTENTION IS INAPPROPRIATE WHERE A STATUTE REGULATING SPEECH IS
PROPERLY ATTACKED ON ITS FACE AS BEING UNCONSTITUTIONALLY VAGUE.  PP.
490-491. 

(C)  APPELLANTS ARE ENTITLED TO AN INJUNCTION WHERE, AS HERE, NO
READILY APPARENT CONSTRUCTION IS AVAILABLE TO BRING THE STATUTE WITHIN
CONSTITUTIONAL CONFINES IN A SINGLE PROSECUTION, AND IT IS NOT ALLEGED
THAT THEIR CONDUCT WOULD FALL WITHIN ANY CONCEIVABLE NARROWING
CONSTRUCTION.  P. 491. 

(D)  THE STATE MUST ASSUME THE BURDEN OF SECURING A PERMISSIBLE
NARROW CONSTRUCTION OF THE STATUTE IN A NONCRIMINAL PROCEEDING BEFORE
IT MAY SEEK MODIFICATION OF THE INJUNCTION TO PERMIT FUTURE
PROSECUTIONS THEREUNDER.  P. 491. 

4.  THE STATUTORY DEFINITION OF "A SUBVERSIVE ORGANIZATION" IN SEC.
359(5) OF THE LOUISIANA SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL
LAW, INCORPORATED IN THE OFFENSE CREATED BY SEC. 364(4), UNDER WHICH
TWO OF THE INDIVIDUAL APPELLANTS WERE INDICTED, RESULTS IN AN OVERLY
BROAD REGULATION OF SPEECH, INVALID FOR THE SAME REASONS AS HELD IN
BAGGETT V. BULLITT, SUPRA, WHICH INVOLVED A SUBSTANTIALLY SIMILAR
DEFINITION.  PP. 493-494. 

5.  SECTION 364(7), CREATING AN OFFENSE FOR FAILURE TO REGISTER AS A
MEMBER OF A "COMMUNIST FRONT ORGANIZATION," UNDER WHICH EACH OF THE
INDIVIDUAL DEFENDANTS WAS INDICTED, IS ON ITS FACE INVALID BECAUSE OF
ITS CONSTITUTIONALLY IMPERMISSIBLE PRESUMPTION OF SUCH STATUS IF THE
ORGANIZATION HAD BEEN CITED AS A COMMUNIST FRONT BY DESIGNATED FEDERAL
INSTRUMENTALITIES, THERE BEING NO REQUIREMENT IN THE STATUTE OF
COMPLIANCE IN THE PROCESS OF SUCH CITATION WITH PROCEDURAL SAFEGUARDS
AS DEMANDED BY ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 123.  PP.
494-496. 

6.  THE DISTRICT COURT SHALL ENJOIN PROSECUTION OF THE PENDING
INDICTMENTS AGAINST THE INDIVIDUAL APPELLANTS, ORDER IMMEDIATE RETURN
OF DOCUMENTS SEIZED AND PROHIBIT FURTHER ENFORCEMENT OF THE SECTIONS OF
THE SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW HERE FOUND VOID ON
THEIR FACE.  WITHOUT ABSTENTION, IT SHALL DECIDE WHAT RELIEF APPELLANTS
MAY BE ENTITLED TO ON THE BASIS OF THEIR ATTACKS ON OTHER SECTIONS OF
THAT STATUTE, THEIR ATTACKS ON THE COMMUNIST PROPAGANDA CONTROL LAW,
AND THE REMAINING ISSUES RAISED IN THE COMPLAINT.  PP. 497-498. 

DOMBROWSKI ET AL. V. PFISTER, CHAIRMAN, JOINT LEGISLATIVE COMMITTEE ON
UN-AMERICAN ACTIVITIES OF THE LOUISIANA LEGISLATURE, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS FILED A COMPLAINT IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA, INVOKING THE CIVIL RIGHTS ACT, REV. STAT. SEC.
1979, 42 U.S.C. SEC. 1983 (1958 ED.), AND SEEKING DECLARATORY RELIEF
AND AN INJUNCTION RESTRAINING APPELLEES - THE GOVERNOR, POLICE AND LAW
ENFORCEMENT OFFICERS, AND THE CHAIRMAN OF THE LEGISLATIVE JOINT
COMMITTEE ON UN-AMERICAN ACTIVITIES IN LOUISIANA - FROM PROSECUTING OR
THREATENING TO PROSECUTE APPELLANTS FOR ALLEGED VIOLATIONS OF THE
LOUISIANA SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW AND THE
COMMUNIST PROPAGANDA CONTROL LAW.  (FN1) APPELLANT SOUTHERN CONFERENCE
EDUCATIONAL FUND, INC. (SCEF), IS ACTIVE IN FOSTERING CIVIL RIGHTS FOR
NEGROES IN LOUISIANA AND OTHER STATES OF THE SOUTH.  APPELLANT
DOMBROWSKI IS ITS EXECUTIVE DIRECTOR; INTERVENOR SMITH, ITS TREASURER;
AND INTERVENOR WALTZER, SMITH'S LAW PARTNER AND AN ATTORNEY FOR SCEF. 
THE COMPLAINT ALLEGES THAT THE STATUTES ON THEIR FACE VIOLATE THE FIRST
AND FOURTEENTH AMENDMENT GUARANTEES SECURING FREEDOM OF EXPRESSION,
BECAUSE OVERBREADTH MAKES THEM SUSCEPTIBLE OF SWEEPING AND IMPROPER
APPLICATION ABRIDGING THOSE RIGHTS.  SUPPORTED BY AFFIDAVITS AND A
WRITTEN OFFER OF PROOF, THE COMPLAINT FURTHER ALLEGES THAT THE THREATS
TO ENFORCE THE STATUTES AGAINST APPELLANTS ARE NOT MADE WITH ANY
EXPECTATION OF SECURING VALID CONVICTIONS, BUT RATHER ARE PART OF A
PLAN TO EMPLOY ARRESTS, SEIZURES, AND THREATS OF PROSECUTION UNDER
COLOR OF THE STATURES TO HARASS APPELLANTS AND DISCOURAGE THEM AND
THEIR SUPPORTERS FROM ASSERTING AND ATTEMPTING TO VINDICATE THE
CONSTITUTIONAL RIGHTS OF NEGRO CITIZENS OF LOUISIANA. 

A THREE-JUDGE DISTRICT COURT, CONVENED PURSUANT TO 28 U.S.C. SEC.
2281 (1958 ED.), DISMISSED THE COMPLAINT, ONE JUDGE DISSENTING, "FOR
FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED."  227 F.
SUPP. 556, 564.  THE MAJORITY WERE OF THE VIEW THAT THE ALLEGATIONS,
CONCEDED TO RAISE SERIOUS CONSTITUTIONAL ISSUES, DID NOT PRESENT A CASE
OF THREATENED IRREPARABLE INJURY TO FEDERAL RIGHTS WHICH WARRANTED
CUTTING SHORT THE NORMAL ADJUDICATION OF CONSTITUTIONAL DEFENSES IN THE
COURSE OF STATE CRIMINAL PROSECUTIONS; RATHER, THE MAJORITY HELD, THIS
WAS AN APPROPRIATE CASE FOR ABSTENTION, SINCE A POSSIBLE NARROWING
CONSTRUCTION BY THE STATE COURTS WOULD AVOID UNNECESSARY DECISION OF
CONSTITUTIONAL QUESTIONS.  IN ACCORDANCE WITH THIS VIEW THE COURT
WITHDREW ITS INITIAL DETERMINATION THAT THE STATUTES WERE NOT
UNCONSTITUTIONAL ON THEIR FACE.  227 F. SUPP., AT 562-563. 
POSTPONEMENT OF CONSIDERATION OF THE FEDERAL ISSUES UNTIL STATE
PROSECUTION AND POSSIBLE REVIEW HERE OF ADVERSE STATE DETERMINATION WAS
THOUGHT TO BE ESPECIALLY APPROPRIATE SINCE THE STATUTES CONCERNED THE
STATE'S "BASIC RIGHT OF SELF-PRESERVATION" AND THE THREATENED
PROSECUTION WAS "INBUED  ...  WITH AN AURA OF SEDITION OR TREASON OR
ACTS DESIGNED TO SUBSTITUTE A DIFFERENT FORM OF LOCAL GOVERNMENT BY
OTHER THAN LAWFUL MEANS  ...  "; FEDERAL COURT INTERFERENCE WITH
ENFORCEMENT OF SUCH STATUTES "TRULY  ...  WOULD BE A MASSIVE
EMASCULATION OF THE LAST VESTIGE OF THE DIGNITY OF SOVEREIGNTY."  227
F. SUPP., AT 559, 560.  WE NOTED PROBABLE JURISDICTION IN ORDER TO
RESOLVE A SEEMING CONFLICT WITH OUR LATER DECISION IN BAGGETT V.
BULLITT, 377 U.S. 360, AND TO SETTLE IMPORTANT QUESTIONS CONCERNING
FEDERAL INJUNCTIONS AGAINST STATE CRIMINAL PROSECUTIONS THREATENING
CONSTITUTIONALLY PROTECTED EXPRESSION.  377 U.S. 976.  WE REVERSE. 

                                          I. 

IN EX PARTE YOUNG, 209 U.S. 123, THE FOUNTAINHEAD OF FEDERAL
INJUNCTIONS AGAINST STATE PROSECUTIONS, THE COURT CHARACTERIZED THE
POWER AND ITS PROPER EXERCISE IN BROAD TERMS:  IT WOULD BE JUSTIFIED
WHERE STATE OFFICERS "  ...  THREATEN AND ARE ABOUT TO COMMENCE
PROCEEDINGS, EITHER OF A CIVIL OR CRIMINAL NATURE, TO ENFORCE AGAINST
PARTIES AFFECTED AN UNCONSTITUTIONAL ACT, VIOLATING THE FEDERAL
CONSTITUTION  ...  ."  209 U.S., AT 156.  SINCE THAT DECISION, HOWEVER,
CONSIDERATIONS OF FEDERALISM HAVE TEMPERED THE EXERCISE OF EQUITABLE
POWER, (FN2) FOR THE COURT HAS RECOGNIZED THAT FEDERAL INTERFERENCE
WITH A STATE'S GOOD-FAITH ADMINISTRATION OF ITS CRIMINAL LAWS IS
PECULIARLY INCONSISTENT WITH OUR FEDERAL FRAMEWORK.  IT IS GENERALLY TO
BE ASSUMED THAT STATE COURTS AND PROSECUTORS WILL OBSERVE
CONSTITUTIONAL LIMITATIONS AS EXPOUNDED BY THIS COURT, AND THAT THE
MERE POSSIBILITY OF ERRONEOUS INITIAL APPLICATION OF CONSTITUTIONAL
STANDARDS WILL USUALLY NOT AMOUNT TO THE IRREPARABLE INJURY NECESSARY
TO JUSTIFY A DISRUPTION OF ORDERLY STATE PROCEEDINGS.  IN DOUGLAS V.
CITY OF JEANNETTE, 319 U.S. 157, FOR EXAMPLE, THE COURT UPHELD A
DISTRICT COURT'S REFUSAL TO ENJOIN APPLICATION OF A CITY ORDINANCE TO
RELIGIOUS SOLICITATION, EVEN THOUGH THE ORDINANCE WAS THAT VERY DAY
HELD UNCONSTITUTIONAL AS SO APPLIED ON REVIEW OF A CRIMINAL CONVICTION
UNDER IT.  MURDOCK V. PENNSYLVANIA, 319 U.S. 105.  SINCE INJUNCTIVE
RELIEF LOOKS TO THE FUTURE, AND IT WAS NOT ALLEGED THAT PENNSYLVANIA
COURTS AND PROSECUTORS WOULD FAIL TO RESPECT THE MURDOCK RULING, THE
COURT FOUND NOTHING TO JUSTIFY AN INJUNCTION.  AND IN A VARIETY OF
OTHER CONTEXTS THE COURT HAS FOUND NO SPECIAL CIRCUMSTANCES TO WARRANT
CUTTING SHORT THE NORMAL ADJUDICATION OF CONSTITUTIONAL DEFENSES IN THE
COURSE OF A CRIMINAL PROSECUTION.  (FN3)  IN SUCH CASES IT DOES NOT
APPEAR THAT THE PLAINTIFFS "HAVE BEEN THREATENED WITH ANY INJURY OTHER
THAN THAT INCIDENTAL TO EVERY CRIMINAL PROCEEDING BROUGHT LAWFULLY AND
IN GOOD FAITH, OR THAT A FEDERAL COURT OF EQUITY BY WITHDRAWING THE
DETERMINATION OF GUILT FROM THE STATE COURTS COULD RIGHTLY AFFORD
PETITIONERS ANY PROTECTION WHICH THEY COULD NOT SECURE BY PROMPT TRIAL
AND APPEAL PURSUED TO THIS COURT."  DOUGLAS V. CITY OF JEANNETTE,
SUPRA, AT 164. 

BUT THE ALLEGATIONS IN THIS COMPLAINT DEPICT A SITUATION IN WHICH
DEFENSE OF THE STATE'S CRIMINAL PROSECUTION WILL NOT ASSURE ADEQUATE
VINDICATION OF CONSTITUTIONAL RIGHTS.  THEY SUGGEST THAT A SUBSTANTIAL
LOSS OR IMPAIRMENT OF FREEDOMS OF EXPRESSION WILL OCCUR IF APPELLANTS
MUST AWAIT THE STATE COURT'S DISPOSITION AND ULTIMATE REVIEW IN THIS
COURT OF ANY ADVERSE DETERMINATION.  THESE ALLEGATIONS, IF TRUE,
CLEARLY SHOW IRREPARABLE INJURY. 

A CRIMINAL PROSECUTION UNDER A STATUTE REGULATING EXPRESSION USUALLY
INVOLVES IMPONDERABLES AND CONTINGENCIES THAT THEMSELVES MAY INHIBIT
THE FULL EXERCISE OF FIRST AMENDMENT FREEDOMS.  SEE, E.G., SMITH V.
CALIFORNIA, 361 U.S. 147.  WHEN THE STATUTES ALSO HAVE AN OVERBROAD
SWEEP, AS IS HERE ALLEGED, THE HAZARD OF LOSS OR SUBSTANTIAL IMPAIRMENT
OF THOSE PRECIOUS RIGHTS MAY BE CRITICAL.  FOR IN SUCH CASES, THE
STATUTES LEND THEMSELVES TOO READILY TO DENIAL OF THOSE RIGHTS.  THE
ASSUMPTION THAT DEFENSE OF A CRIMINAL PROSECUTION WILL GENERALLY ASSURE
AMPLE VINDICATION OF CONSTITUTIONAL RIGHTS IS UNFOUNDED IN SUCH CASES. 
SEE BAGGETT V. BULLITT, SUPRA, AT 379.  FOR "THE THREAT OF SANCTIONS
MAY DETER  ...  ALMOST AS POTENTLY AS THE ACTUAL APPLICATION OF
SANCTIONS  ...  ."  NAACP V. BUTTON, 371 U.S. 415, 433.  BECAUSE OF THE
SENSITIVE NATURE OF CONSTITUTIONALLY PROTECTED EXPRESSION, WE HAVE NOT
REQUIRED THAT ALL OF THOSE SUBJECT TO OVERBROAD REGULATIONS RISK
PROSECUTION TO TEST THEIR RIGHTS.  FOR FREE EXPRESSION - OF
TRANSCENDENT VALUE TO ALL SOCIETY, AND NOT MERELY TO THOSE EXERCISING
THEIR RIGHTS - MIGHT BE THE LOSER.  CF. GARRISON V. LOUISIANA, 379 U.S.
64, 74-75.  FOR EXAMPLE, WE HAVE CONSISTENTLY ALLOWED ATTACKS ON OVERLY
BROAD STATUTES WITH NO REQUIREMENT THAT THE PERSON MAKING THE ATTACK
DEMONSTRATE THAT HIS OWN CONDUCT COULD NOT BE REGULATED BY A STATUTE
DRAWN WITH THE REQUISITE NARROW SPECIFICITY.  THORNHILL V. ALABAMA, 310
U.S. 88, 97-98; NAACP V. BUTTON, SUPRA, AT 432-433; CF. APTHEKER V.
SECRETARY OF STATE, 378 U.S. 500, 515-517; UNITED STATES V. RAINES, 362
U.S. 17, 21-22.  WE HAVE FASHIONED THIS EXCEPTION TO THE USUAL RULES
GOVERNING STANDING, SEE UNITED STATES V. RAINES, SUPRA, BECAUSE OF THE
"  ...  DANGER OF TOLERATING, IN THE AREA OF FIRST AMENDMENT FREEDOMS,
THE EXISTENCE OF A PENAL STATUTE SUSCEPTIBLE OF SWEEPING AND IMPROPER
APPLICATION."  NAACP V. BUTTON, SUPRA, AT 433.  IF THE RULE WERE
OTHERWISE, THE CONTOURS OF REGULATION WOULD HAVE TO BE HAMMERED OUT
CASE BY CASE - AND TESTED ONLY BY THOSE HARDY ENOUGH TO RISK CRIMINAL
PROSECUTION TO DETERMINE THE PROPER SCOPE OF REGULATION.  CF. EX PARTE
YOUNG, SUPRA, AT 147-148.  BY PERMITTING DETERMINATION OF THE
INVALIDITY OF THESE STATUTES WITHOUT REGARD TO THE PERMISSIBILITY OF
SOME REGULATION ON THE FACTS OF PARTICULAR CASES, WE HAVE, IN EFFECT,
AVOIDED MAKING VINDICATION OF FREEDOM OF EXPRESSION AWAIT THE OUTCOME
OF PROTRACTED LITIGATION.  MOREOVER, WE HAVE NOT THOUGHT THAT THE
IMPROBABILITY OF SUCCESSFUL PROSECUTION MAKES THE CASE DIFFERENT.  THE
CHILLING EFFECT UPON THE EXERCISE OF FIRST AMENDMENT RIGHTS MAY DERIVE
FROM THE FACT OF THE PROSECUTION, UNAFFECTED BY THE PROSPECTS OF ITS
SUCCESS OR FAILURE.  SEE NAACP V. BUTTON, SUPRA, AT 432-433; CF.
BAGGETT V. BULLITT, SUPRA, AT 378-379; BUSH V. ORLEANS SCHOOL BOARD,
194 F. SUPP. 182, 185, AFFIRMED SUB NOM. TUGWELL V. BUSH, 367 U.S. 907;
GREMILLION V. UNITED STATES, 368 U.S. 11. 

APPELLANTS' ALLEGATIONS AND OFFERS OF PROOF OUTLINE THE CHILLING
EFFECT ON FREE EXPRESSION OF PROSECUTIONS INITIATED AND THREATENED IN
THIS CASE.  EARLY IN OCTOBER 1963 APPELLANT DOMBROWSKI AND INTERVENORS
SMITH AND WALTZER WERE ARRESTED BY LOUISIANA STATE AND LOCAL POLICE AND
CHARGED WITH VIOLATIONS OF THE TWO STATUTES.  THEIR OFFICES WERE RAIDED
AND THEIR FILES AND RECORDS SEIZED.  (FN4)  LATER IN OCTOBER A STATE
JUDGE QUASHED THE ARREST WARRANTS AS NOT BASED ON PROBABLE CAUSE, AND
DISCHARGED THE APPELLANTS.  SUBSEQUENTLY, THE COURT GRANTED A MOTION TO
SUPPRESS THE SEIZED EVIDENCE ON THE GROUND THAT THE RAID WAS ILLEGAL. 
LOUISIANA OFFICIALS CONTINUED, HOWEVER, TO THREATEN PROSECUTION OF THE
APPELLANTS, WHO THEREUPON FILED THIS ACTION IN NOVEMBER.  SHORTLY AFTER
THE THREE-JUDGE COURT WAS CONVENED, A GRAND JURY WAS SUMMONED IN THE
PARISH OF ORLEANS TO HEAR EVIDENCE LOOKING TO INDICTMENTS OF THE
INDIVIDUAL APPELLANTS.  ON APPELLANTS' APPLICATION JUDGE WISDOM ISSUED
A TEMPORARY RESTRAINING ORDER AGAINST PROSECUTIONS PENDING HEARING AND
DECISION OF THE CASE IN THE DISTRICT COURT.  FOLLOWING A HEARING THE
DISTRICT COURT, OVER JUDGE WISDOM'S DISSENT, DISSOLVED THE TEMPORARY
RESTRAINING ORDER AND, AT THE SAME TIME, HANDED DOWN AN ORDER
DISMISSING THE COMPLAINT.  THEREAFTER THE GRAND JURY RETURNED
INDICTMENTS UNDER THE SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW
AGAINST THE INDIVIDUAL APPELLANTS.  (FN5) 

THESE EVENTS, TOGETHER WITH REPEATED ANNOUNCEMENTS BY APPELLEES THAT
THE APPELLANT ORGANIZATION IS A SUBVERSIVE OR COMMUNIST-FRONT
ORGANIZATION, WHOSE MEMBERS MUST REGISTER OR BE PROSECUTED UNDER THE
LOUISIANA STATUTES, HAVE, APPELLANTS ALLEGE, FRIGHTENED OFF POTENTIAL
MEMBERS AND CONTRIBUTORS.  CF. ANTI-FASCIST COMMITTEE V. MCGRATH, 341
U.S. 123.  SEIZURES OF DOCUMENTS AND RECORDS HAVE PARALYZED OPERATIONS
AND THREATENED EXPOSURE OF THE IDENTITY OF ADHERENTS TO A LOCALLY
UNPOPULAR CAUSE.  SEE NAACP V. ALABAMA, 357 U.S. 449.  ALTHOUGH THE
PARTICULAR SEIZURE HAS BEEN QUASHED IN THE STATE COURTS, THE CONTINUING
THREAT OF PROSECUTION PORTENDS FURTHER ARRESTS AND SEIZURES, SOME OF
WHICH MAY BE UPHELD AND ALL OF WHICH WILL CAUSE THE ORGANIZATION
INCONVENIENCE OR WORSE.  IN FREEDMAN V. MARYLAND, ANTE, P. 51, WE
STRUCK DOWN A MOTION PICTURE CENSORSHIP STATUTE SOLELY BECAUSE THE
REGULATORY SCHEME DID NOT SUFFICIENTLY ASSURE EXHIBITORS A PROMPT
JUDICIAL RESOLUTION OF FIRST AMENDMENT CLAIMS.  THE INTEREST IN
IMMEDIATE RESOLUTION OF SUCH CLAIMS IS SURELY NO LESS WHERE CRIMINAL
PROSECUTIONS ARE THREATENED UNDER STATUTES ALLEGEDLY OVERBROAD AND
SERIOUSLY INHIBITING THE EXERCISE OF PROTECTED FREEDOMS.  NOT ONLY DOES
THE COMPLAINT ALLEGE FAR MORE THAN AN "INJURY OTHER THAN THAT
INCIDENTAL TO EVERY CRIMINAL PROCEEDING BROUGHT LAWFULLY AND IN GOOD
FAITH," BUT APPELLANTS ALLEGE THREATS TO ENFORCE STATUTORY PROVISIONS
OTHER THAN THOSE UNDER WHICH INDICTMENTS HAVE BEEN BROUGHT.  SINCE
THERE IS NO IMMEDIATE PROSPECT OF A FINAL STATE ADJUDICATION AS TO
THOSE OTHER SECTIONS - IF, INDEED, THERE IS ANY CERTAINTY THAT
PROSECUTION OF THE PENDING INDICTMENTS WILL RESOLVE ALL CONSTITUTIONAL
ISSUES PRESENTED - A SERIES OF STATE CRIMINAL PROSECUTIONS WILL NOT
PROVIDE SATISFACTORY RESOLUTION OF CONSTITUTIONAL ISSUES. 

IT FOLLOWS THAT THE DISTRICT COURT ERRED IN HOLDING THAT THE
COMPLAINT FAILS TO ALLEGE SUFFICIENT IRREPARABLE INJURY TO JUSTIFY
EQUITABLE RELIEF. 

THE DISTRICT COURT ALSO ERRED IN HOLDING THAT IT SHOULD ABSTAIN
PENDING AUTHORITATIVE INTERPRETATION OF THE STATUTES IN THE STATE
COURTS, WHICH MIGHT HOLD THAT THEY DID NOT APPLY TO SCEF, OR THAT THEY
WERE UNCONSTITUTIONAL AS APPLIED TO SCEF.  WE HOLD THE ABSTENTION
DOCTRINE IS INAPPROPRIATE FOR CASES SUCH AS THE PRESENT ONE WHERE,
UNLIKE DOUGLAS V. CITY OF JEANNETTE, STATUTES ARE JUSTIFIABLY ATTACKED
ON THEIR FACE AS ABRIDGING FREE EXPRESSION, OR AS APPLIED FOR THE
PURPOSE OF DISCOURAGING PROTECTED ACTIVITIES.    FIRST, APPELLANTS HAVE
ATTACKED THE GOOD FAITH OF THE APPELLEES IN ENFORCING THE STATUTES,
CLAIMING THAT THEY HAVE INVOKED, AND THREATEN TO CONTINUE TO INVOKE,
CRIMINAL PROCESS WITHOUT ANY HOPE OF ULTIMATE SUCCESS, BUT ONLY TO
DISCOURAGE APPELLANTS' CIVIL RIGHTS ACTIVITIES.  IF THESE ALLEGATIONS
STATE A CLAIM UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. SEC. 1983, AS WE
BELIEVE THEY DO, SEE BEAUREGARD V. WINGARD, 230 F. SUPP. 167 (D.C.S.D.
CALIF. 1964); BARGAINER V. MICHAL, 233 F. SUPP. 270 (D.C.N.D. OHIO
1964), THE INTERPRETATION ULTIMATELY PUT ON THE STATUTES BY THE STATE
COURTS IS IRRELEVANT.  FOR AN INTERPRETATION RENDERING THE STATUTE
INAPPLICABLE TO SCEF WOULD MERELY MEAN THAT APPELLANTS MIGHT ULTIMATELY
PREVAIL IN THE STATE COURTS.  IT WOULD NOT ALTER THE IMPROPRIETY OF
APPELLEES' INVOKING THE STATUTE IN BAD FAITH TO IMPOSE CONTINUING
HARASSMENT IN ORDER TO DISCOURAGE APPELLANTS' ACTIVITIES, AS APPELLEES
ALLEGEDLY ARE DOING AND PLAN TO CONTINUE TO DO. 

SECOND, APPELLANTS HAVE CHALLENGED THE STATUTES AS OVERLY BROAD AND
VAGUE REGULATIONS OF EXPRESSION.  WE HAVE ALREADY SEEN THAT WHERE, AS
HERE, PROSECUTIONS ARE ACTUALLY THREATENED, THIS CHALLENGE, IF NOT
CLEARLY FRIVOLOUS, WILL ESTABLISH THE THREAT OF IRREPARABLE INJURY
REQUIRED BY TRADITIONAL DOCTRINES OF EQUITY.  WE BELIEVE THAT IN THIS
CASE THE SAME REASONS PRECLUDE DENIAL OF EQUITABLE RELIEF PENDING AN
ACCEPTABLE NARROWING CONSTRUCTION.  IN CONSIDERING WHETHER INJUNCTIVE
RELIEF SHOULD BE GRANTED, A FEDERAL DISTRICT COURT SHOULD CONSIDER A
STATUTE AS OF THE TIME ITS JURISDICTION IS INVOKED, RATHER THAN SOME
HYPOTHETICAL FUTURE DATE.  THE AREA OF PROSCRIBED CONDUCT WILL BE
ADEQUATELY DEFINED AND THE DETERRENT EFFECT OF THE STATUTE CONTAINED
WITHIN CONSTITUTIONAL LIMITS ONLY BY AUTHORITATIVE CONSTRUCTIONS
SUFFICIENTLY ILLUMINATING THE CONTOURS OF AN OTHERWISE VAGUE
PROHIBITION.  AS WE OBSERVED IN BAGGETT V. BULLITT, SUPRA, AT 378, THIS
CANNOT BE SATISFACTORILY DONE THROUGH A SERIES OF CRIMINAL
PROSECUTIONS, DEALING AS THEY INEVITABLY MUST WITH ONLY A NARROW
PORTION OF THE PROHIBITION AT ANY ONE TIME, AND NOT CONTRIBUTING
MATERIALLY TO ARTICULATION OF THE STATUTORY STANDARD.  WE BELIEVE THAT
THOSE AFFECTED BY A STATUTE ARE ENTITLED TO BE FREE OF THE BURDENS OF
DEFENDING PROSECUTIONS, HOWEVER, EXPEDITIOUS, AIMED AT HAMMERING OUT
THE STRUCTURE OF THE STATUTE PIECEMEAL, WITH NO LIKELIHOOD OF OBVIATING
SIMILAR UNCERTAINTY FOR OTHERS.  HERE, NO READILY APPARENT CONSTRUCTION
SUGGESTS ITSELF AS A VEHICLE FOR REHABILITATING THE STATUTES IN A
SINGLE PROSECUTION, AND APPELLANTS ARE ENTITLED TO AN INJUNCTION.  THE
STATE MUST, IF IT IS TO INVOKE THE STATUTES AFTER INJUNCTIVE RELIEF HAS
BEEN SOUGHT, ASSUME THE BURDEN OF OBTAINING A PERMISSIBLE NARROW
CONSTRUCTION IN A NONCRIMINAL PROCEEDING (FN6) BEFORE IT MAY SEEK
MODIFICATION OF THE INJUNCTION TO PERMIT FUTURE PROSECUTIONS.  (FN7) 

ON THIS VIEW OF THE "VAGUENESS" DOCTRINE, IT IS READILY APPARENT THAT
ABSTENTION SERVES NO LEGITIMATE PURPOSE WHERE A STATUTE REGULATING
SPEECH IS PROPERLY ATTACKED ON ITS FACE, AND WHERE, AS HERE, THE
CONDUCT CHARGED IN THE INDICTMENTS IS NOT WITHIN THE REACH OF AN
ACCEPTABLE LIMITING CONSTRUCTION READILY TO BE ANTICIPATED AS THE
RESULT OF A SINGLE CRIMINAL PROSECUTION AND IS NOT THE SORT OF "HARD
CORE" CONDUCT THAT WOULD OBVIOUSLY BE PROHIBITED UNDER ANY
CONSTRUCTION.  IN THESE CIRCUMSTANCES, TO ABSTAIN IS TO SUBJECT THOSE
AFFECTED TO THE UNCERTAINTIES AND VAGARIES OF CRIMINAL PROSECUTION,
WHEREAS THE REASONS FOR THE VAGUENESS DOCTRINE IN THE AREA OF
EXPRESSION DEMAND NO LESS THAN FREEDOM FROM PROSECUTION PRIOR TO A
CONSTRUCTION ADEQUATE TO SAVE THE STATUTE.  IN SUCH CASES, ABSTENTION
IS AT WAR WITH THE PURPOSES OF THE VAGUENESS DOCTRINE, WHICH DEMANDS
APPROPRIATE FEDERAL RELIEF REGARDLESS OF THE PROSPECTS FOR EXPEDITIOUS
DETERMINATION OF STATE CRIMINAL PROSECUTIONS.  ALTHOUGH WE HOLD TODAY
THAT APPELLANTS' ALLEGATIONS OF THREATS TO PROSECUTE, IF UPHELD,
DICTATE APPROPRIATE EQUITABLE RELIEF WITHOUT AWAITING DECLARATORY
JUDGMENTS IN THE STATE COURTS, THE SETTLED RULE OF OUR CASES IS THAT
DISTRICT COURTS RETAIN POWER TO MODIFY INJUNCTIONS IN LIGHT OF CHANGED
CIRCUMSTANCES.  SYSTEM FEDERATION V. WRIGHT, 364 U.S. 642; CHRYSLER
CORP. V. UNITED STATES, 316 U.S. 556; UNITED STATES V. SWIFT & CO., 286
U.S. 106.  OUR VIEW OF THE PROPER OPERATION OF THE VAGUENESS DOCTRINE
DOES NOT PRECLUDE DISTRICT COURTS FROM MODIFYING INJUNCTIONS TO PERMIT
PROSECUTIONS IN LIGHT OF SUBSEQUENT STATE COURT INTERPRETATION
CLARIFYING THE APPLICATION OF A STATUTE TO PARTICULAR CONDUCT. 

WE CONCLUDE THAT ON THE ALLEGATIONS OF THE COMPLAINT, IF TRUE,
ABSTENTION AND THE DENIAL OF INJUNCTIVE RELIEF MAY WELL RESULT IN THE
DENIAL OF ANY EFFECTIVE SAFEGUARDS AGAINST THE LOSS OF PROTECTED
FREEDOMS OF EXPRESSION, AND CANNOT BE JUSTIFIED. 

          II. 

EACH OF THE INDIVIDUAL APPELLANTS WAS INDICTED FOR VIOLATING SEC.
364(7) (FN8) OF THE SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW BY
FAILING TO REGISTER AS A MEMBER OF A COMMUNIST-FRONT ORGANIZATION. 
SMITH AND WALTZER WERE INDICTED FOR FAILING TO REGISTER AS MEMBERS "OF
A COMMUNIST FRONT ORGANIZATION KNOWN AS THE NATIONAL LAWYERS GUILD,
WHICH SAID ORGANIZATION HAS BEEN CITED BY COMMITTEES AND SUB-COMMITTEES
OF THE UNITED STATES CONGRESS AS A COMMUNIST FRONT ORGANIZATION  ... ."
DOMBROWSKI AND SMITH WERE INDICTED FOR FAILING TO REGISTER AS MEMBERS
OF "A COMMUNIST FRONT ORGANIZATION KNOWN AS THE SOUTHERN CONFERENCE
EDUCATIONAL FUND, WHICH SAID ORGANIZATION IS ESSENTIALLY THE SAME AS
THE SOUTHERN CONFERENCE FOR HUMAN WELFARE, WHICH SAID SOUTHERN
CONFERENCE FOR HUMAN WELFARE HAS  ... BEEN CITED BY THE COMMITTEES OF
THE UNITED STATES CONGRESS AS A COMMUNIST FRONT ORGANIZATION  ...  ." 
DOMBROWSKI AND SMITH WERE ALSO INDICTED FOR VIOLATING SEC. 364(4),
(FN9) BY ACTING AS EXECUTIVE DIRECTOR AND TREASURER RESPECTIVELY "OF A
SUBVERSIVE ORGANIZATION, TO WIT, THE SOUTHERN CONFERENCE EDUCATIONAL
FUND, SAID ORGANIZATION BEING ESSENTIALLY THE SAME AS THE SOUTHERN
CONFERENCE FOR HUMAN WELFARE, WHICH SAID ORGANIZATION HAS BEEN CITED BY
COMMITTEES OF THE UNITED STATES CONGRESS AS A COMMUNIST FRONT
ORGANIZATION  ...  ." 

THE STATUTORY DEFINITION OF "A SUBVERSIVE ORGANIZATION" IN SEC.
359(5) (FN10) INCORPORATED IN THE OFFENSE CREATED BY SEC. 364(4), IS
SUBSTANTIALLY IDENTICAL TO THAT OF THE WASHINGTON STATUTE WHICH WE
CONSIDERED IN BAGGETT V. BULLITT, SUPRA, AT 362, 363, N. 1.  THERE THE
DEFINITION WAS USED IN A STATE STATUTE REQUIRING STATE EMPLOYEES TO
TAKE AN OATH AS A CONDITION OF EMPLOYMENT.  WE HELD THAT THE
DEFINITION, AS WELL AS THE OATH BASED THEREON, DENIED DUE PROCESS
BECAUSE IT WAS UNDULY VAGUE, UNCERTAIN AND BROAD.  WHERE, AS HERE,
PROTECTED FREEDOMS OF EXPRESSION AND ASSOCIATION ARE SIMILARLY
INVOLVED, WE SEE NO CONTROLLING DISTINCTION IN THE FACT THAT THE
DEFINITION IS USED TO PROVIDE A STANDARD OF CRIMINALITY RATHER THAN THE
CONTENTS OF A TEST OATH.  THIS OVERLY BROAD STATUTE ALSO CREATES A
"DANGER ZONE" WITHIN WHICH PROTECTED EXPRESSION MAY BE INHIBITED.  CF.
SPEISER V. RANDALL, 357 U.S. 513, 526.  SO LONG AS THE STATUTE REMAINS
AVAILABLE TO THE STATE THE THREAT OF PROSECUTIONS OF PROTECTED
EXPRESSION IS A REAL AND SUBSTANTIAL ONE.  EVEN THE PROSPECT OF
ULTIMATE FAILURE OF SUCH PROSECUTIONS BY NO MEANS DISPELS THEIR
CHILLING EFFECT ON PROTECTED EXPRESSION.  A QUANTITY OF COPIES OF BOOKS
V. KANSAS, 378 U.S. 205; BANTAM BOOKS, INC. V. SULLIVAN, 372 U.S. 58;
MARCUS V. SEARCH WARRANT, 367 U.S. 717; SPEISER V. RANDALL, SUPRA.
SINCE SEC. 364(4) IS SO IMTIMATELY BOUND UP WITH A DEFINITION INVALID
UNDER THE REASONING OF BAGGETT V. BULLITT, WE HOLD THAT IT IS INVALID
FOR THE SAME REASONS. 

WE ALSO FIND THE REGISTRATION REQUIREMENT OF SEC. 364(7) INVALID. 
THAT SECTION CREATES AN OFFENSE OF FAILURE TO REGISTER AS A MEMBER OF A
COMMUNIST-FRONT ORGANIZATION, AND, UNDER SEC. 359(3), (FN11) "THE FACT
THAT AN ORGANIZATION HAS BEEN OFFICIALLY CITED OR IDENTIFIED BY THE
ATTORNEY GENERAL OF THE UNITED STATES, THE SUBVERSIVE ACTIVITIES
CONTROL BOARD OF THE UNITED STATES OR ANY COMMITTEE OR SUBCOMMITTEE OF
THE UNITED STATES CONGRESS AS A  ...  COMMUNIST FRONT ORGANIZATION  ...
SHALL BE CONSIDERED PRESUMPTIVE EVIDENCE OF THE FACTUAL STATUS OF ANY
SUCH ORGANIZATION."  THERE IS NO REQUIREMENT THAT THE ORGANIZATION BE
SO CITED ONLY AFTER COMPLIANCE WITH THE PROCEDURAL SAFEGUARDS DEMANDED
BY ANTI-FASCIST COMMITTEE V. MCGRATH, SUPRA.  (FN12) 

A DESIGNATION RESTING ON SUCH SAFEGUARDS IS A MINIMUM REQUIREMENT TO
INSURE THE RATIONALITY OF THE PRESUMPTIONS OF THE LOUISIANA STATUTE
AND, IN ITS ABSENCE, THE PRESUMPTIONS CAST AN IMPERMISSIBLE BURDEN UPON
THE APPELLANTS TO SHOW THAT THE ORGANIZATIONS ARE NOT COMMUNIST
FRONTS.  "WHERE THE TRANSCENDENT VALUE OF SPEECH IS INVOLVED, DUE
PROCESS CERTAINLY REQUIRES  ...  THAT THE STATE BEAR THE BURDEN OF
PERSUASION TO SHOW THAT THE APPELLANTS ENGAGED IN CRIMINAL SPEECH." 
SPEISER V. RANDALL, SUPRA, AT 526.  IT FOLLOWS THAT SEC. 364(7),
RESTING ON THE INVALID PRESUMPTION, IS UNCONSTITUTIONAL ON ITS FACE. 
(FN13)

                                         III. 

THE PRECISE TERMS AND SCOPE OF THE INJUNCTIVE RELIEF TO WHICH
APPELLANTS ARE ENTITLED AND THE IDENTITY OF THE APPELLEES TO BE
ENJOINED CANNOT, OF COURSE, BE DETERMINED UNTIL AFTER THE DISTRICT
COURT CONDUCTS THE HEARING ON REMAND.  THE RECORD SUFFICES, HOWEVER, TO
PERMIT THIS COURT TO HOLD THAT, WITHOUT THE BENEFIT OF LIMITING
CONSTRUCTION, THE STATUTORY PROVISIONS ON WHICH THE INDICTMENTS ARE
FOUNDED ARE VOID ON THEIR FACE; UNTIL AN ACCEPTABLE LIMITING
CONSTRUCTION IS OBTAINED, THE PROVISIONS CANNOT BE APPLIED TO THE
ACTIVITIES OF SCEF, WHATEVER THEY MAY BE.  THE BRIEF FILED IN THIS
COURT BY APPELLEE GARRISON, DISTRICT ATTORNEY OF THE PARISH OF ORLEANS,
THE OFFICIAL HAVING IMMEDIATE RESPONSIBILITY FOR THE INDICTMENTS,
CONCEDES THE FACTS CONCERNING THE ARRESTS OF THE INDIVIDUAL APPELLANTS,
THEIR DISCHARGE BY THE LOCAL JUDGE, AND THE INDICTMENTS OF THE
INDIVIDUAL APPELLANTS BY THE GRAND JURY.  IN VIEW OF OUR DECISION ON
THE MERITS, THE DISTRICT COURT ON REMAND NEED DECIDE ONLY THE RELIEF TO
WHICH APPELLANTS MAY BE ENTITLED ON THE BASIS OF THEIR ATTACKS ON OTHER
ON THEIR ALLEGATIONS THAT APPELLEES THREATEN TO ENFORCE BOTH STATUTES
SOLELY TO DISCOURAGE APPELLANTS FROM CONTINUING THEIR CIVIL RIGHTS
ACTIVITIES.  ON THESE ISSUES, ABSTENTION WILL BE AS INAPPROPRIATE AS ON
THE ISSUES WE HERE DECIDE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  THESE
SHALL INCLUDE PROMPT FRAMING OF A DECREE RESTRAINING PROSECUTION OF THE
PENDING INDICTMENTS AGAINST THE INDIVIDUAL APPELLANTS, ORDERING
IMMEDIATE RETURN OF ALL PAPERS AND DOCUMENTS SEIZED, AND PROHIBITING
FURTHER ACTS ENFORCING THE SECTIONS OF THE SUBVERSIVE ACTIVITIES AND
COMMUNIST CONTROL LAW HERE FOUND VOID ON THEIR FACE.  IN ADDITION,
APPELLANTS ARE ENTITLED TO EXPEDITIOUS DETERMINATION, WITHOUT
ABSTENTION, OF THE REMAINING ISSUES RAISED IN THE COMPLAINT.  IT IS SO
ORDERED. 

FN1  THE SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW IS LA. REV.
STAT. SECS. 14:358 THROUGH 14:374 (CUM. SUPP. 1962).  THE COMMUNIST
PROPAGANDA CONTROL LAW IS LA. REV. STAT.  SECS. 14:390 THROUGH 14:390.8
(CUM. SUPP. 1962). 

FN2  28 U.S.C. SEC. 2283 (1958 ED.)  PROVIDES THAT: 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

THE DISTRICT COURT DID NOT SUGGEST THAT THIS STATUTE DENIED POWER TO
ISSUE THE INJUNCTIONS SOUGHT.   THIS STATUTE AND ITS PREDECESSORS DO
NOT PRECLUDE INJUNCTIONS AGAINST THE INSTITUTION OF STATE COURT
PROCEEDINGS, BUT ONLY BAR STAYS OF SUITS ALREADY INSTITUTED.  SEE EX
PARTE YOUNG, SUPRA.  SEE GENERALLY WARREN, FEDERAL AND STATE COURT
INTERFERENCE, 43 HARV. L. REV. 345, 366-378 (1930); NOTE, FEDERAL POWER
TO ENJOIN STATE COURT PROCEEDINGS, 74 HARV. L. REV. 726, 728-729
(1961).  SINCE THE GRAND JURY WAS NOT CONVENED AND INDICTMENTS WERE NOT
OBTAINED UNTIL AFTER THE FILING OF THE COMPLAINT, WHICH SOUGHT
INTERLOCUTORY AS WELL AS PERMANENT RELIEF, NO STATE "PROCEEDINGS" WERE
PENDING WITHIN THE INTENDMENT OF SEC. 2283.  TO HOLD OTHERWISE WOULD
MEAN THAT ANY THREAT OF PROSECUTION SUFFICIENT TO JUSTIFY EQUITABLE
INTERVENTION WOULD ALSO BE A "PROCEEDING" FOR SEC. 2283.   NOR ARE THE
SUBSEQUENTLY OBTAINED INDICTMENTS "PROCEEDINGS" AGAINST WHICH
INJUNCTIVE RELIEF IS PRECLUDED BY SEC. 2283.  THE INDICTMENTS WERE
OBTAINED ONLY BECAUSE THE DISTRICT COURT ERRONEOUSLY DISMISSED THE
COMPLAINT AND DISSOLVED THE TEMPORARY RESTRAINING ORDER ISSUED BY JUDGE
WISDOM IN AID OF THE JURISDICTION OF THE DISTRICT COURT PROPERLY
INVOKED BY THE COMPLAINT.  WE THEREFORE FIND IT UNNECESSARY TO RESOLVE
THE QUESTION WHETHER SUITS UNDER 42 U.S.C. SEC. 1983 (1958 ED.)  COME
UNDER THE "EXPRESSLY AUTHORIZED" EXCEPTION TO SEC. 2283.  COMPARE
COOPER V. HUTCHINSON, 184 F.2D 119, 124 (C.A. 3D CIR. 1950), WITH SMITH
V. VILLAGE OF LANSING, 241 F.2D 856, 859 (C.A. 7TH CIR. 1957).  SEE
NOTE, 74 HARV. L. REV. 726, 738 (1961). 

FN3  SEE, E.G., BEAL V. MISSOURI PAC. R. CO., 312 U.S. 45 (MERE
THREAT OF SINGLE PROSECUTION); SPIELMAN MOTOR SALES CO., INC. V. DODGE,
295 U.S. 89 (SAME); WATSON V. BUCK, 313 U.S. 387 (NO IRREPARABLE INJURY
OR CONSTITUTIONAL INFIRMITY IN STATUTE); FENNER V. BOYKIN, 271 U.S. 240
(SAME).  IT IS DIFFICULT TO THINK OF A CASE IN WHICH AN ACCUSED COULD
PROPERLY BRING A STATE PROSECUTION TO A HALT WHILE A FEDERAL COURT
DECIDES HIS CLAIM THAT CERTAIN EVIDENCE IS RENDERED INADMISSIBLE BY THE
FOURTEENTH AMENDMENT.  CF. CLEARY V. BOLGER, 371 U.S. 392; STEFANELLI
V. MINARD, 342 U.S. 117.    FN4  THE CIRCUMSTANCES OF THE ARRESTS ARE
SET FORTH IN JUDGE WISDOM'S DISSENTING OPINION: 

"AT GUNPOINT THEIR HOMES AND OFFICES WERE RAIDED AND RANSACKED BY
POLICE OFFICERS AND TRUSTEES FROM THE HOUSE OF DETENTION ACTING UNDER
THE DIRECT SUPERVISION OF THE STAFF DIRECTOR AND THE COUNSEL FOR THE
STATE UN-AMERICAN ACTIVITIES COMMITTEE.  THE HOME AND OFFICE OF THE
DIRECTOR OF SOUTHERN CONFERENCE EDUCATIONAL FUND WERE ALSO RAIDED. 
AMONG THE DANGEROUS ARTICLES REMOVED WAS THOREAU'S JOURNAL.  A
TRUCKLOAD OF FILES, MEMBERSHIP LISTS, SUBSCRIPTION LISTS TO SCEF'S
NEWSPAPER, CORRESPONDENCE, AND RECORDS WERE REMOVED FROM SCEF'S OFFICE,
DESTROYING ITS CAPACITY TO FUNCTION.  AT THE TIME OF THE ARRESTS, MR.
PFISTER, CHAIRMAN OF THE COMMITTEE, ANNOUNCED TO THE PRESS THAT THE
RAIDS AND ARREST RESULTED FROM 'RACIAL AGITATION.'"  227 F. SUPP., AT
573. 

FN5  PROSECUTION UNDER THESE INDICTMENTS IS AWAITING DECISION OF THIS
CASE. 

FN6  THIRTY-SEVEN STATES, INCLUDING LOUISIANA, HAVE ADOPTED THE
UNIFORM DECLARATORY JUDGMENTS ACT.   THE LOUISIANA VERSION, LA. CIV.
PROC. CODE ANN., 1960, ARTS. 1871-1883, ABOLISHES THE FORMER
REQUIREMENT THAT THERE BE NO OTHER ADEQUATE REMEDY. 

FN7  OUR CASES INDICATE THAT ONCE AN ACCEPTABLE LIMITING CONSTRUCTION
IS OBTAINED, IT MAY BE APPLIED TO CONDUCT OCCURRING PRIOR TO THE
CONSTRUCTION, SEE POULOS V. NEW HAMPSHIRE, 345 U.S. 395; COX V. NEW
HAMPSHIRE, 312 U.S. 569; WINTERS V. NEW YORK, 333 U.S. 507, PROVIDED
SUCH APPLICATION AFFORDS FAIR WARNING TO THE DEFENDANTS, SEE LANZETTA
V. NEW JERSEY, 306 U.S. 451; CF. HARRISON V. NAACP, 360 U.S. 167, 179. 

FN8  SECTION 364(7) PROVIDES:  "IT SHALL BE A FELONY FOR ANY PERSON
KNOWINGLY AND WILFULLY TO  ...  FAIL TO REGISTER AS REQUIRED IN R.S.
14:360 OR TO MAKE ANY REGISTRATION WHICH CONTAINS ANY MATERIAL FALSE
STATEMENT OR OMISSION." 

FN9  SECTION 364(4) PROVIDES:  "IT SHALL BE A FELONY FOR ANY PERSON
KNOWINGLY AND WILFULLY TO  ...  ASSIST IN THE FORMATION OR PARTICIPATE
IN THE MANAGEMENT OR TO CONTRIBUTE TO THE SUPPORT OF ANY SUBVERSIVE
ORGANIZATION OR FOREIGN SUBVERSIVE ORGANIZATION KNOWING SAID
ORGANIZATION TO BE A SUBVERSIVE ORGANIZATION OR A FOREIGN SUBVERSIVE
ORGANIZATION  ...  ." 

FN10  SECTION 359(5) PROVIDES:  "'SUBVERSIVE ORGANIZATION' MEANS ANY
ORGANIZATION WHICH ENGAGES IN OR ADVOCATES, ABETS, ADVISES, OR TEACHES,
OR A PURPOSE OF WHICH IS TO ENGAGE IN OR ADVOCATE, ABET, ADVISE, OR
TEACH ACTIVITIES INTENDED TO OVERTHROW, DESTROY, OR TO ASSIST IN THE
OVERTHROW OR DESTRUCTION OF THE CONSTITUTIONAL FORM OF THE GOVERNMENT
OF THE STATE OF LOUISIANA, OR OF ANY POLITICAL SUBDIVISION THEREOF BY
REVOLUTION, FORCE, VIOLENCE OR OTHER UNLAWFUL MEANS, OR ANY OTHER
ORGANIZATION WHICH SEEKS BY UNCONSTITUTIONAL OR ILLEGAL MEANS TO
OVERTHROW OR DESTROY THE GOVERNMENT OF THE STATE OF LOUISIANA OR ANY
POLITICAL SUBDIVISION THEREOF AND TO ESTABLISH IN PLACE THEREOF ANY
FORM OF GOVERNMENT NOT RESPONSIBLE TO THE PEOPLE OF THE STATE OF
LOUISIANA UNDER THE CONSTITUTION OF THE STATE OF LOUISIANA." 

FN11  SECTION 359(3) PROVIDES:  "'COMMUNIST FRONT ORGANIZATION'
SHALL, FOR THE PURPOSE OF THIS ACT INCLUDE ANY COMMUNIST ACTION
ORGANIZATION, COMMUNIST FRONT ORGANIZATION, COMMUNIST INFILTRATED
ORGANIZATION OR COMMUNIST CONTROLLED ORGANIZATION AND THE FACT THAT AN
ORGANIZATION HAS BEEN OFFICIALLY CITED OR IDENTIFIED BY THE ATTORNEY
GENERAL OF THE UNITED STATES, THE SUBVERSIVE ACTIVITIES CONTROL BOARD
OF THE UNITED STATES OR ANY COMMITTEE OR SUBCOMMITTEE OF THE UNITED
STATES CONGRESS AS A COMMUNIST ORGANIZATION, A COMMUNIST ACTION
ORGANIZATION, A COMMUNIST FRONT ORGANIZATION, A COMMUNIST INFILTRATED
ORGANIZATION OR HAS BEEN IN ANY OTHER WAY OFFICIALLY CITED OR
IDENTIFIED BY ANY OF THESE AFOREMENTIONED AUTHORITIES AS A COMMUNIST
CONTROLLED ORGANIZATION, SHALL BE CONSIDERED PRESUMPTIVE EVIDENCE OF
THE FACTUAL STATUS OF ANY SUCH ORGANIZATION." 

FN12  ALTHOUGH WE HOLD THE STATUTE VOID ON ITS FACE, ITS APPLICATION
TO THE NATIONAL LAWYERS GUILD IS INSTRUCTIVE.  IN 1953, THE ATTORNEY
GENERAL OF THE UNITED STATES PROPOSED TO DESIGNATE THE ORGANIZATION AS
SUBVERSIVE.  HIS PROPOSAL WAS MADE UNDER REVISED REGULATIONS,
PROMULGATED UNDER EXECUTIVE ORDER 10450 TO COMPLE WITH ANTI-FASCIST
COMMITTEE, ESTABLISHING A NOTICE AND HEARING PROCEDURE PRIOR TO SUCH
DESIGNATION OF AN ORGANIZATION.  18 FED. REG. 2619; SEE 1954 ANNUAL
REPORT OF THE ATTORNEY GENERAL, P. 14.  THE GUILT BROUGHT AN ACTION IN
THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ATTACKING THE EXECUTIVE
ORDER AND THE PROCEDURES.  A SUMMARY JUDGMENT IN FAVOR OF THE ATTORNEY
GENERAL BECAUSE OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES WAS
SUSTAINED ON APPEAL AND THIS COURT DENIED CERTIORARI, NATIONAL LAWYERS
GUILD V. BROWNELL, 96 U.S. APP. D.C. 252, 225 F.2D 552, CERT. DENIED,
351 U.S. 927.  AFTER A HEARING OFFICER DETERMINED THAT CERTAIN
INTERROGATORIES PROPOUNDED TO THE GUILD SHOULD BE ANSWERED, THE GUILD
BROUGHT ANOTHER ACTION IN THE DISTRICT COURT, NATIONAL LAWYERS GUILD V.
ROGERS, CIVIL ACTION NO. 1738-58, FILED JULY 2, 1958.  ON SEPTEMBER 11,
1958, THE ATTORNEY GENERAL RESCINDED THE PROPOSAL TO DESIGNATE THE
GUILD.  1958 ANNUAL REPORT OF THE ATTORNEY GENERAL, P. 251.  ON
SEPTEMBER 12, 1958, THE COMPLAINT WAS DISMISSED AS MOOT AT THE INSTANCE
OF THE ATTORNEY GENERAL, WHO FILED A MOTION RECITING THE RESCISSION AND
STATING THAT THE ATTORNEY GENERAL HAD "CONCLUDED THAT THE EVIDENCE THAT
WOULD NOW BE AVAILABLE AT A HEARING ON THE MERITS OF THE PROPOSED
DESIGNATION FAILS TO MEET THE STRICT STANDARDS OF PROOF WHICH GUIDE THE
DETERMINATION OF PROCEEDINGS OF THIS CHARACTER."  THE PRESENT FEDERAL
STATUTES PROVIDE THAT THE SUBVERSIVE ACTIVITIES CONTROL BOARD MAY NOT
DESIGNATE AN ORGANIZATION AS A COMMUNIST FRONT WITHOUT FIRST ACCORDING
THE ORGANIZATION THE PROCEDURAL SAFEGUARDS OF NOTICE AND HEARING. 
SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, SEC. 13, 64 STAT. 998, 50
U.S.C. SEC. 792 (1958 ED.).  SEE COMMUNIST PARTY V. SACB, 367 U.S. 1. 

FN13  ALTHOUGH WE READ APPELLEE GARRISON'S BRIEF AS CONCEDING THAT
APPELLANTS' FILES AND RECORDS WERE SEIZED IN AID OF THE PROSECUTIONS
UNDER THE SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW, WE FIND NO
CONCESSION THAT THE SEIZURE, AS ALLEGED IN APPELLANTS' OFFER OF PROOF,
WAS ALSO UNDER COLOR OF THE COMMUNIST PROPAGANDA CONTROL LAW.  SECTION
390.6 OF THAT STATUTE AUTHORIZES THE SEIZURE AND DESTRUCTION ON SUMMARY
PROCESS OF "ALL COMMUNIST PROPAGANDA DISCOVERED IN THE STATE OF
LOUISIANA" IN VIOLATION OF THE OTHER PROVISIONS OF THE ACT, AND SEC.
390.2 MAKES IT A FELONY TO DISSEMINATE SUCH MATERIAL.  "COMMUNIST
PROPAGANDA" IS DEFINED IN SEC. 390.1, WHICH CONTAINS A PRESUMPTION
IDENTICAL TO THAT WHICH WE HAVE FOUND TO BE INVALID IN SEC. 359(3) OF
THE SUBVERSIVE ACTIVITIES AND COMMUNIST CONTROL LAW.  IN LIGHT OF THE
UNCERTAIN STATE OF THE RECORD, HOWEVER, WE BELIEVE THAT THE APPELLANTS'
ATTACKS UPON THE CONSTITUTIONALITY, ON ITS FACE AND AS APPLIED, OF THE
COMMUNIST PROPAGANDA CONTROL LAW SHOULD AWAIT DETERMINATION BY THE
DISTRICT COURT AFTER CONSIDERING THE SUFFICIENCY OF THREATS TO ENFORCE
THE LAW. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

THE BASIC HOLDING IN THIS CASE MARKS A SIGNIFICANT DEPARTURE FROM A
WISE PROCEDURAL PRINCIPLE DESIGNED TO SPARE OUR FEDERAL SYSTEM FROM
PREMATURE FEDERAL JUDICIAL INTERFERENCE WITH STATE STATUTES OR
PROCEEDINGS CHALLENGED ON FEDERAL CONSTITUTIONAL GROUNDS.  THIS
DECISION ABOLISHES THE DOCTRINE OF FEDERAL JUDICIAL ABSTENTION IN ALL
SUITS ATTACKING STATE CRIMINAL STATUTES FOR VAGUENESS ON FIRST
FOURTEENTH AMENDMENT GROUNDS.  AS ONE WHO CONSIDERS THAT IT IS A PRIME
RESPONSIBILITY OF THIS COURT TO MAINTAIN FEDERAL-STATE COURT
RELATIONSHIPS IN GOOD WORKING ORDER, I CANNOT SUBSCRIBE TO A HOLDING
WHICH DISPLAYS SUCH INSENSITIVITY TO THE LEGITIMATE DEMANDS OF THOSE
RELATIONSHIPS UNDER OUR FEDERAL SYSTEM.  I SEE NO SUCH INCOMPATIBILITY
BETWEEN THE ABSTENTION DOCTRINE AND THE FULL VINDICATION OF
CONSTITUTIONALLY PROTECTED RIGHTS AS THE COURT FINDS TO EXIST IN CASES
OF THIS KIND. 

IN PRACTICAL EFFECT THE COURT'S DECISION MEANS THAT A STATE MAY NO
LONGER CARRY ON PROSECUTIONS UNDER STATUTES CHALLENGEABLE FOR VAGUENESS
ON "FIRST AMENDMENT" GROUNDS WITHOUT THE PRIOR APPROVAL OF THE FEDERAL
COURTS.  FOR IF SUCH A STATUTE CAN BE SO QUESTIONED (AND FEW, AT LEAST
COLORABLY, CANNOT) THEN A STATE PROSECUTION, IF INSTITUTED AFTER THE
COMMENCEMENT OF A FEDERAL ACTION, (FN1) MUST BE HALTED UNTIL THE
PROSECUTING AUTHORITIES OBTAIN IN SOME OTHER STATE PROCEEDING A
NARROWING CONSTRUCTION, WHICH IN TURN WOULD PRESUMABLY BE SUBJECT TO
FURTHER MONITORING BY THE FEDERAL COURTS BEFORE THE STATE PROSECUTION
WOULD BE ALLOWED TO PROCEED. 

FOR ME SUCH A PARALYZING OF STATE CRIMINAL PROCESSES CANNOT BE
JUSTIFIED BY ANY OF THE CONSIDERATIONS WHICH THE COURT'S OPINION
ADVANCES IN ITS SUPPORT.  HIGH AS THE PREMIUM PLACED ON FIRST AMENDMENT
RIGHTS MAY BE, I DO NOT THINK THAT THE FEDERAL CONSTITUTION PREVENTS A
STATE FROM TESTING THEIR AVAILABILITY THROUGH THE MEDIUM OF CRIMINAL
PROCEEDINGS, SUBJECT OF COURSE TO THIS COURT'S ULTIMATE REVIEW. 

UNDERLYING THE COURT'S MAJOR PREMISE THAT CRIMINAL ENFORCEMENT OF AN
OVERLY BROAD STATUTE AFFECTING RIGHTS OF SPEECH AND ASSOCIATION IS IN
ITSELF A DETERRENT TO THE FREE EXERCISE THEREOF SEEMS TO BE THE
UNARTICULATED ASSUMPTION THAT STATE COURTS WILL NOT BE AS PRONE AS
FEDERAL COURTS TO VINDICATE CONSTITUTIONAL RIGHTS PROMPTLY AND
EFFECTIVELY.  SUCH AN ASSUMPTION SHOULD NOT BE INDULGED IN THE ABSENCE
OF A SHOWING THAT SUCH IS APT TO BE SO IN A GIVEN CASE.  NO SHOWING OF
THAT KIND HAS BEEN MADE.  ON THE CONTRARY, THE LOUISIANA COURTS IN THIS
VERY CASE HAVE ALREADY REFUSED TO UPHOLD THE SEIZURE OF APPELLANTS'
BOOKS.  ANTE, PP. 487-488.  WE SHOULD NOT ASSUME THAT THOSE COURTS
WOULD NOT BE EQUALLY DILIGENT IN CONSTRUING THE STATUTES HERE IN
QUESTION IN ACCORDANCE WITH THE RELEVANT DECISIONS OF THIS COURT. 
(FN2) 

THE COURT SUGGESTS THAT "A SUBSTANTIAL LOSS OR IMPAIRMENT OF FREEDOMS
OF EXPRESSION WILL OCCUR IF APPELLANTS MUST AWAIT THE STATE COURT'S
DISPOSITION AND ULTIMATE REVIEW IN THIS COURT OF ANY ADVERSE
DETERMINATION."  ANTE, P. 486.  BUT THE POSSIBILITY OF SUCH AN
IMPAIRMENT IS NOT OBVIATED BY TRAVELING THE FEDERAL ROUTE APPROVED
HERE.  EVEN IN THE FEDERAL COURTS THE PROGRESS OF LITIGATION IS NOT
ALWAYS AS SWIFT AS ONE WOULD LIKE TO SEE IT.  IT IS TRUE, OF COURSE,
THAT APPELLANTS WOULD HAVE TO SHOW IN THE STATE CASE THAT THE CONDUCT
CHARGED FALLS OUTSIDE THE SCOPE OF A CRIMINAL STATUTE CONSTRUED WITHIN
CONSTITUTIONAL LIMITS, WHEREAS IN THIS CASE THEY NEED NOT ALLEGE THE
PARTICULAR CONDUCT WHICH THEY DEEM TO BE PROTECTED.  BUT THE ARGUMENT
THAT THESE STATE PROSECUTIONS DO NOT AFFORD AN APPROPRIATE VEHICLE FOR
TESTING APPELLANTS' CLAIMS RESPECTING FREEDOM OF SPEECH AND ASSOCIATION
HARDLY SITS WELL WITH THE SMITH ACT CASES IN WHICH FIRST AMENDMENT
CLAIMS WERE AT THE VERY CORE OF THE FEDERAL PROSECUTIONS.  SEE DENNIS
V. UNITED STATES, 341 U.S. 494; YATES V. UNITED STATES, 354 U.S. 298;
SCALES V. UNITED STATES, 367 U.S. 203. 

BAGGETT V. BULLITT, 377 U.S. 360, IN WHICH THE COURT LAST TERM STRUCK
DOWN A WASHINGTON STATE STATUTE VIRTUALLY IDENTICAL TO THIS ONE, SHOULD
NOT BE DISPOSITIVE OF THIS CASE.  BAGGETT WAS DECIDED IN THE CONTEXT OF
WHAT AMOUNTED TO AN ACADEMIC LOYALTY OATH, APPLICABLE TO COLLEGE
PROFESSORS WITH RESPECT TO SOME OF WHOM (THOSE NOT HAVING TENURE) THERE
WAS AT LEAST GRAVE DOUBT WHETHER A STATE REMEDY WAS AVAILABLE TO REVIEW
THE CONSTITUTIONALITY OF THEIR DISMISSAL BY REASON OF REFUSAL TO TAKE
THE REQUIRED OATH.  I WOULD NOT EXTEND THE DOCTRINE OF THAT CASE TO
THWART THE NORMAL PROCESSES OF STATE CRIMINAL LAW ENFORCEMENT.  (FN3) 

HAD THIS STATUTE BEEN A FEDERAL ENACTMENT AND HAD THIS COURT BEEN
WILLING TO PASS UPON ITS VALIDITY IN A DECLARATORY JUDGMENT OR
INJUNCTION ACTION, I CAN HARDLY BELIEVE THAT IT WOULD HAVE STRICKEN THE
STATUTE WITHOUT FIRST EXPOSING IT TO THE PROCESS OF NARROWING
CONSTRUCTION IN AN EFFORT TO SAVE AS MUCH OF IT AS POSSIBLE.  SEE,
E.G., DENNIS V. UNITED STATES, SUPRA, AT 502.  YET HERE THE COURT HAS
NOT ONLY MADE NO EFFORT TO GIVE THIS STATE STATUTE A NARROWING
CONSTRUCTION, BUT HAS ALSO DECLINED TO GIVE THE LOUISIANA COURTS AN
OPPORTUNITY TO DO SO WITH RESPECT TO THE ACTS CHARGED IN THE PENDING
PROSECUTIONS AGAINST THESE APPELLANTS.  SEE FOX V. WASHINGTON, 236 U.S.
273; POULOS V. NEW HAMPSHIRE, 345 U.S. 395.  THE STATUTE THUS PRO TANTO
GOES TO ITS DOOM WITHOUT EITHER STATE OR FEDERAL COURT INTERPRETATION,
AND DESPITE THE ROOM WHICH THE STATUTE CLEARLY LEAVES FOR A NARROWING
CONSTITUTIONAL CONSTRUCTION.  SEE DENNIS, YATES, AND SCALES, SUPRA.
THIS SEEMS TO ME TO BE HEAVY-HANDED TREATMENT OF THE FIRST ORDER. 

WHAT THE COURT DECIDES SUFFERS FROM A FURTHER INFIRMITY.  INTERWOVEN
WITH THE VAGUENESS DOCTRINE IS A QUESTION OF STANDING.  IN A CRIMINAL
PROSECUTION A DEFENDANT COULD NOT AVOID A CONSTITUTIONAL APPLICATION OF
THIS STATUTE TO HIS OWN CONDUCT SIMPLY BY SHOWING THAT IF APPLIED TO
OTHERS WHOSE CONDUCT WAS PROTECTED IT WOULD BE UNCONSTITUTIONAL.  (FN4)
TO FOLLOW THAT PRACTICE IN A FEDERAL COURT WHICH IS ASKED TO ENJOIN A
STATE CRIMINAL PROSECUTION WOULD, HOWEVER, IN EFFECT REQUIRE THAT THE
PARTIES TRY THE CRIMINAL CASE IN ADVANCE IN THE FEDERAL FORUM, SEE
CLEARY V. BOLGER, 371 U.S. 392; STEFANELLI V. MINARD, 342 U.S. 117, 123
124, A PROCEDURE CERTAINLY SERIOUSLY DISRUPTIVE OF THE ORDERLY
PROCESSES OF THE STATE PROCEEDINGS.  THE COURT SEEMS TO RECOGNIZE THAT
PERSONS WHOSE CONDUCT WOULD BE INCLUDED UNDER EVEN THE NARROWEST
READING OF THE STATUTES - WHAT MIGHT BE CALLED "HARD-CORE" CONDUCT -
COULD HAVE BEEN CONSTITUTIONALLY PROSECUTED UNDER THE STATUTES
INVALIDATED TODAY, WITHOUT BEING ABLE TO ASSERT A VAGUENESS DEFENSE. 
ANTE, N. 7; PP. 491-492.  THUS, IF PERSONS WERE CONSPIRING TO STATE A
FORCIBLE COUP D'ETAT IN A STATE, THEY COULD HARDLY CLAIM IN A CRIMINAL
TRIAL THAT A STATUTE SUCH AS THIS WAS VAGUE AS APPLIED TO THEM.  FOR
ALL WE KNOW, APPELLANTS' CONDUCT IN FACT WOULD FALL WITHIN EVEN THE
NARROWEST READING OF THE LOUISIANA SUBVERSIVE ACTIVITIES AND COMMUNIST
CONTROL LAW, BUT SINCE APPELLANTS WERE ABLE TO REACH A FEDERAL COURT
BEFORE THE STATE INSTITUTED CRIMINAL PROCEEDINGS AGAINST THEM, THEY ARE
NOW IMMUNIZED WITH A FEDERAL VACCINATION FROM STATE PROSECUTION.  TO
MAKE STANDING AND CRIMINALITY TURN ON WHICH PARTY WINS THE RACE TO THE
FORUM OF ITS OWN CHOICE IS TO REPUDIATE THE "CONSIDERATIONS OF
FEDERALISM" (ANTE, P. 484) TO WHICH THE COURT PAYS LIP SERVICE. 

WHILE I CONSIDER THAT ABSTENTION WAS CALLED FOR, I THINK THE DISTRICT
COURT ERRED IN DISMISSING THE ACTION.  IT SHOULD HAVE RETAINED
JURISDICTION FOR THE PURPOSE OF AFFORDING APPELLANTS APPROPRIATE RELIEF
IN THE EVENT THAT THE STATE PROSECUTION DID NOT GO FORWARD IN A PROMPT
AND BONA FIDE MANNER.  SEE HARRISON V. NAACP, 360 U.S. 167. 

FN1  IF THE STATE CRIMINAL PROSECUTION WERE INSTITUTED FIRST, A
FEDERAL COURT COULD NOT ENJOIN THE STATE ACTION.  28 U.S.C. SEC. 2283
(1958 ED.). 

FN2  MOREOVER, IT IS NOT UNLIKELY THAT THE LOUISIANA COURTS WOULD
CONSTRUE THESE STATUTES SO AS TO OBVIATE THE PROBLEMS OF VAGUENESS
NOTED BY THE COURT IN BAGGETT V. BULLITT, 377 U.S. 360, WITH REGARD TO
A SIMILAR WASHINGTON STATUTE.  COMPARE DOUGLAS V. CITY OF JEANNETTE,
319 U.S. 157, AND MURDOCK V. PENNSYLVANIA, 319 U.S. 105, ANTE, P. 485. 

FN3  IN THIS CASE APPELLANTS ARE PURSUING A CONSISTENT COURSE OF
CONDUCT, AND THE ONLY QUESTION IS WHETHER THE LOUISIANA STATUTES APPLY
TO SUCH CONDUCT.  THUS, THIS CASE COMES WITHIN THE "BULK OF ABSTENTION
CASES IN THIS COURT  ...  WHERE THE UNSETTLED ISSUE OF STATE LAW
PRINCIPALLY CONCERNED THE APPLICABILITY OF THE CHALLENGED STATUTE TO A
CERTAIN PERSON OR A DEFINED COURSE OF CONDUCT, WHOSE RESOLUTION IN A
PARTICULAR MANNER WOULD ELIMINATE THE CONSTITUTIONAL ISSUE AND
TERMINATE THE LITIGATION."  BAGGETT V. BULLITT, SUPRA, AT 376-377.  THE
PRESENT CASE IS INDISTINGUISHABLE FROM HARRISON V. NAACP, 360 U.S. 167,
AND ALBERTSON V. MILLARD, 345 U.S. 242, AS EXPLAINED IN BAGGETT, SUPRA,
AT 376, N. 13. 

FN4  SEE NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN THE SUPREME COURT,
109 U. PA. L. REV. 67, 96-104 (1960). 
..END :









AMERICAN COMMITTEE FOR PROTECTION OF FOREIGN BORN V. SUBVERSIVE
ACTIVITIES CONTROL BOARD 380 U.S. 503 


NO. 44.  ARGUED DECEMBER 8-9, 1964.  - DECIDED APRIL 26, 1965.  - 117
U.S. APP. D.C. 393, 331 F.2D 53, VACATED AND REMANDED. 


SINCE THE ORDER OF THE SUBVERSIVE ACTIVITIES CONTROL BOARD, AFFIRMED
BY THE COURT OF APPEALS, REQUIRING THAT PETITIONER REGISTER AS A
"COMMUNIST-FRONT" ORGANIZATION WAS BASED UPON EVIDENCE AT A HEARING
WHICH ENDED IN 1955 WHICH RELATED LARGELY TO THE ACTIVITIES OF ONE
INDIVIDUAL WHO DIED PRIOR TO THE BOARD'S ORDER, THE JUDGMENT IS VACATED
AND THE CAUSE REMANDED TO DETERMINE PETITIONER'S CURRENT STATUS. 

AMERICAN COMMITTEE FOR PROTECTION OF FOREIGN BORN V. SUBVERSIVE
ACTIVITIES CONTROL BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED AN
ORDER OF THE SUBVERSIVE ACTIVITIES CONTROL BOARD REQUIRING THAT THE
PETITIONER REGISTER AS A "COMMUNIST-FRONT" ORGANIZATION UNDER SEC. 7 OF
THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, AS AMENDED, 64 STAT.
993, 50 U.S.C. SEC. 786 (1958 ED.).  117 U.S. APP. D.C. 393, 331 F.2D
53.  WE GRANTED CERTIORARI.  377 U.S. 915. 

UNDER THE STATUTE, A DETERMINATION THAT AN ORGANIZATION IS A
COMMUNIST FRONT MUST REST ON FINDINGS THAT IT "(A) IS SUBSTANTIALLY
DIRECTED, DOMINATED, OR CONTROLLED BY A COMMUNIST-ACTION ORGANIZATION,
AND (B) IS PRIMARILY OPERATED FOR THE PURPOSE OF GIVING AID AND SUPPORT
TO A COMMUNIST-ACTION ORGANIZATION  ...  ."  SEC. 3(4), 64 STAT. 989,
50 U.S.C. SEC. 782(4) (1958 ED.).  IN COMMUNIST PARTY OF THE UNITED
STATES V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1, THIS COURT
SUSTAINED THE BOARD'S DETERMINATION THAT THE COMMUNIST PARTY IS A
"COMMUNIST-ACTION ORGANIZATION" WITHIN THE MEANING OF SEC. 3(3) OF THE
ACT; IN DOING SO, THE COURT UPHELD THE REGISTRATION REQUIREMENT AGAINST
FIRST AMENDMENT ATTACK AND FOUND AN OBJECTION BASED ON THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION NOT RIPE FOR DECISION. 

IN THE PRESENT CASE THE BOARD'S FINDINGS THAT PETITIONER IS A
"COMMUNIST FRONT" WERE BASED PRIMARILY UPON EVIDENCE TAKEN AT A HEARING
WHICH WAS CONCLUDED IN 1955.  THE FINDINGS WHICH SUPPORT THE CONCLUSION
THAT THE PETITIONER IS CONTROLLED BY AND PRIMARILY OPERATED FOR THE
PURPOSE OF GIVING AID AND SUPPORT TO THE COMMUNIST PARTY REST IN
SUBSTANTIAL MEASURE UPON EVIDENCE OF THE ACTIVITIES OF ABNER GREEN,
FOUND TO BE A PARTY MEMBER EXPRESSLY ASSIGNED IN 1941 TO BE
PETITIONER'S EXECUTIVE SECRETARY.  GREEN DIED IN 1959.  THE BOARD'S
ORDER WAS FILED ON JUNE 27, 1960, BUT THE RECORD DISCLOSES NO FINDINGS
OR EVIDENCE CONCERNING PETITIONER'S ACTIVITIES AFTER GREEN'S DEATH. 
(FN1)  IN THE CIRCUMSTANCES WE THINK THAT THE RECORD SHOULD BE BROUGHT
UP TO DATE TO TAKE ACCOUNT OF SUPERVENING EVENTS.  SINCE A REGISTRATION
ORDER OPERATES PROSPECTIVELY, IT IS APPARENT THAT REASONABLY CURRENT
AID AND CONTROL MUST BE ESTABLISHED TO JUSTIFY A REGISTRATION ORDER. 
OUR COMMUNIST PARTY DECISION ON THE COMMUNIST-ACTION PROVISIONS DID NOT
NECESSARILY FORECLOSE PETITIONER'S CONSTITUTIONAL QUESTIONS BEARING ON
THE COMMUNIST-FRONT PROVISIONS.  (FN2)  SINCE PETITIONER'S CURRENT
STATUS IS NOT CLEAR ON THIS RECORD, DECISION OF THE SERIOUS
CONSTITUTIONAL QUESTIONS RAISED BY THE ORDER IS NEITHER NECESSARY NOR
APPROPRIATE. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND THE CAUSE
REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  PETITIONER RAISED THE POINT WHEN, ON FEBRUARY 11, 1960, THE
BOARD HEARD ORAL ARGUMENT ON THE SUFFICIENCY OF THE EVIDENCE.  AT THAT
TIME, PETITIONER'S COUNSEL URGED AS AN INDEPENDENT REASON FOR "THROWING
OUT THIS CASE" THAT "THIS CASE IS STALE AND YOU OUGHT TO THROW IT OUT
BECAUSE YOU CAN'T ENTER AN ORDER UNDER THE ACT  ...  . THE ATTORNEY
GENERAL TALKS ABOUT WHAT A DEVIL ABNER GREEN WAS, OR HARRIET BARRON,
THE TWO PEOPLE HE SAID RAN THE ORGANIZATION.  WELL, THE FACT IS THAT IT
HAS BEEN YEARS SINCE HARRIET BARRON HAS HAD ANY CONNECTION WITH THE
PETITIONER, AND ABNER GREEN TO MY GREAT SORROW IS NOW DEAD.  THINGS
HAVE CHANGED, AND TIMES HAVE CHANGED  ...  YOU CAN'T CONSCIENTIOUSLY
ENTER AN ORDER IN THE PRESENT IN VIEW OF THE TERRIFIC AMOUNT OF TIME
THAT HAS PASSED AND THE CHANGES IN TIME  ...  ."  XVIII TRANSCRIPT 7492
7493.  THE BOARD MADE NO MENTION OF THIS ARGUMENT IN ITS REPORT. 

FN2  THAT THE ISSUES ARE NOT PLAINLY FORECLOSED IS ILLUSTRATED BY
PRESIDENT TRUMAN'S VETO MESSAGE:

"INSOFAR AS THE BILL WOULD REQUIRE REGISTRATION BY THE COMMUNIST
PARTY ITSELF, IT DOES NOT ENDANGER OUR TRADITIONAL LIBERTIES.  HOWEVER,
THE APPLICATION OF THE REGISTRATION REQUIREMENTS TO SO-CALLED COMMUNIST
FRONT ORGANIZATIONS CAN BE THE GREATEST DANGER TO FREEDOM OF SPEECH,
PRESS AND ASSEMBLY, SINCE THE ALIEN AND SEDITION LAWS OF 1798.  THIS
DANGER ARISES OUT OF THE CRITERIA OR STANDARDS TO BE APPLIED IN
DETERMINING WHETHER AN ORGANIZATION IS A COMMUNIST-FRONT ORGANIZATION. 

"THE BILL WOULD PERMIT SUCH A DETERMINATION TO BE BASED SOLELY UPON
'THE EXTENT TO WHICH THE POSITIONS TAKEN OR ADVANCED BY IT FROM TIME TO
TIME ON MATTERS OF POLICY DO NOT DEVIATE FROM THOSE' OF THE COMMUNIST
MOVEMENT. 

"THIS PROVISION COULD EASILY BE USED TO CLASSIFY AS A COMMUNIST-FRONT
ORGANIZATION ANY ORGANIZATION WHICH IS ADVOCATING A SINGLE POLICY OR
OBJECTIVE WHICH IS ALSO BEING URGED BY THE COMMUNIST PARTY OR BY A
COMMUNIST FOREIGN GOVERNMENT  ...  .  THUS, AN ORGANIZATION WHICH
ADVOCATES LOW-COST HOUSING FOR SINCERE HUMANITARIAN REASONS MIGHT BE
CLASSIFIED AS A COMMUNIST-FRONT ORGANIZATION BECAUSE THE COMMUNISTS
REGULARLY EXPLOIT SLUM CONDITIONS AS ONE OF THEIR FIFTH-COLUMN
TECHNIQUES."  H.R. DOC. NO. 708, 81ST CONG., 2D SESS., P. 6.  SEE ALSO
NOTE, 74 YALE L.J. 738 (1965). 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
HARLAN CONCUR, DISSENTING. 

I DISSENT FROM THE REFUSAL OF THE COURT TO FACE UP TO THE IMPORTANT
CONSTITUTIONAL QUESTIONS SQUARELY PRESENTED BY THIS CASE.  THE COURT'S
EXCUSE IS THAT ABNER GREEN, THE EXECUTIVE SECRETARY, WHO WAS PROMINENT
IN PETITIONER'S AFFAIRS, DIED AFTER THE CLOSE OF THE HEARINGS.  (FN1) 

PETITIONER HAS NEVER, SO FAR AS APPEARS, ALLEGED ANY FACTS INDICATING
THAT WITH THE DEATH OF ABNER GREEN THE NATURE OF THE COMMITTEE
UNDERWENT ANY SIGNIFICANT CHANGE.  YET THIS SUGGESTION COULD HAVE BEEN
MADE TO THE BOARD PRIOR TO ITS DECISION; AND IT COULD HAVE BEEN MADE TO
THE COURT OF APPEALS, FOR THE ACT IN SEC. 14(A) SPECIFICALLY PROVIDES:
"IF EITHER PARTY SHALL APPLY TO THE COURT FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE, AND SHALL SHOW TO THE SATISFACTION OF THE COURT
THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL, THE COURT MAY ORDER SUCH
ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE BOARD AND TO BE ADDUCED UPON
THE PROCEEDING IN SUCH MANNER AND UPON SUCH TERMS AND CONDITIONS AS TO
THE COURT MAY SEEM PROPER."  (FN2) 

IN DETERMINING THAT PETITIONER WAS A COMMUNIST-FRONT ORGANIZATION,
THE BOARD WAS DIRECTED BY THE ACT TO CONSIDER OTHER EVIDENCE IN
ADDITION TO EVIDENCE THAT PETITIONER'S EXECUTIVE SECRETARY WAS A MEMBER
OF THE COMMUNIST PARTY.  SECTION 13(F) SETS FORTH FOUR DIFFERENT
CATEGORIES OF EVIDENCE WHICH MUST BE CONSIDERED BY THE BOARD IN
DECIDING WHETHER AN ORGANIZATION IS A FRONT:  (1) THE EXTENT TO WHICH
THOSE WHO ARE ACTIVE IN THE DIRECTION OF THE ALLEGED FRONT ARE ALSO
ACTIVE IN A COMMUNIST-ACTION ORGANIZATION; (2) THE EXTENT TO WHICH
FINANCIAL OR OTHER SUPPORT IS DERIVED FROM A COMMUNIST-ACTION
ORGANIZATION; (3) THE EXTENT TO WHICH THE ALLEGED FRONT'S FUNDS AND
PERSONNEL ARE USED TO PROMOTE THE OBJECTIVES OF A COMMUNIST-ACTION
ORGANIZATION; AND (4) THE EXTENT TO WHICH THE ALLEGED FRONT'S POSITIONS
ON MATTERS OF POLICY DO NOT DEVIATE FROM THE COMMUNIST LINE.  EVIDENCE
IN ALL FOUR OF THESE CATEGORIES WAS ADDUCED. 

THE COURT TAKES A PECULIAR VIEW OF THE EVIDENCE WHEN IT SURMISES THAT
THE DEATH OF PETITIONER'S EXECUTIVE SECRETARY MAY SUDDENLY HAVE CHANGED
THE NATURE OF THE ORGANIZATION.  IT FORGETS WHAT THE COURT SAID IN THE
COMMUNIST PARTY CASE:  "WHERE THE CURRENT CHARACTER OF AN ORGANIZATION
AND THE NATURE OF ITS CONNECTIONS WITH OTHERS IS AT ISSUE, OF COURSE
PAST CONDUCT IS PERTINENT.  INSTITUTIONS, LIKE OTHER ORGANISMS, ARE
PREDOMINANTLY WHAT THEIR PAST HAS MADE THEM.  HISTORY PROVIDES THE
ILLUMINATING CONTEXT WITHIN WHICH THE IMPLICATIONS OF PRESENT CONDUCT
MAY BE KNOWN."  367 U.S. 1, 69.  (FN3) 

THE BOARD FOUND THAT THE PETITIONER HAD EXISTED IN THE UNITED STATES
SINCE 1932 OR 1933 AND THAT IT WAS EIGHT OR NINE YEARS LATER THAT GREEN
BECAME ITS EXECUTIVE SECRETARY.  THE EVIDENCE BEFORE THE BOARD
ESTABLISHED THAT GREEN WAS THE "TOP FUNCTIONARY" OF PETITIONER'S
NATIONAL ORGANIZATION AND THAT HE WAS THE "MOST INFLUENTIAL OFFICIAL"
THEREIN, BUT HE WAS NOT THE ONLY TOP OFFICIAL WHO WAS FOUND TO BE A
MEMBER OF THE COMMUNIST PARTY.  THE NUMBER TWO PERSON IN THE NATIONAL
ORGANIZATION WAS HARRIET BARRON, THE ADMINISTRATIVE SECRETARY, WHO WITH
GREEN CARRIED ON THE ORGANIZATION'S DAY-TO-DAY ACTIVITIES.  SHE WAS
FOUND TO HAVE BEEN A MEMBER OF THE COMMUNIST PARTY AT THE TIME OF THE
HEARINGS AND FOR A NUMBER OF YEARS PRIOR THERETO. 

A GREAT DEAL OF THE EVIDENCE HEARD BY THE BOARD RELATED TO THE LOCAL
BRANCHES OF THE PETITIONER.  THE BOARD FOUND:  "THE MANAGEMENT,
DIRECTION, AND SUPERVISION OF THE BRANCHES (LOCAL COMMITTEES) HAVE BEEN
BY COMMUNIST PARTY MEMBERS SUCH AS RUTH HILLSGROVE FOR THE NEW ENGLAND
COMMITTEE; EVELYN ABELSON AND BESS STEINBERG FOR THE WESTERN
PENNSYLVANIA COMMITTEE; SAUL GROSSMAN FOR THE MICHIGAN COMMITTEE;
MARION KINNEY FOR THE NORTHWEST COMMITTEE; AND DELPHINE SMITH FOR THE
LOS ANGELES COMMITTEE."  THIS EVIDENCE ESTABLISHES THAT THE PETITIONER
CANNOT POSSIBLY BE REGARDED AS A ONE-MAN ORGANIZATION.  IT IS TRUE THAT
GREEN WAS THE LEADER OF THE NATIONAL ORGANIZATION IN NEW YORK AND THAT
HE APPEARED AT SOME MEETINGS OF THE LOCAL COMMITTEES.  BUT THE NATURE
AND EXISTENCE OF THESE LOCAL COMMITTEES, WHICH THE BOARD REGARDED AS
"PART OF" THE NATIONAL ORGANIZATION, INDICATE CLEARLY THAT THE
ORGANIZATION HAD AN EXISTENCE ABOVE AND BEYOND GREEN HIMSELF. 

IN THIS REGARD THE GENESIS OF THE NORTHWEST COMMITTEE IS
INSTRUCTIVE.  THE BOARD FOUND THAT THE ORGANIZATION OF THIS BRANCH
RESULTED FROM DISCUSSIONS IN COMMUNIST PARTY MEETINGS IN SEATTLE ABOUT
THE NEED FOR A LOCAL BRANCH OF THE AMERICAN COMMITTEE TO DEFEND PARTY
MEMBERS.  THIS WAS IN 1949 WHEN THE PARTY DESIGNATED MEMBER KINNEY TO
HEAD THIS ORGANIZATION.  GREEN WAS NOT PRESENT AT THE MEETINGS WHICH
LED TO THE FORMATION OF THIS BRANCH, AND SEEMS TO HAVE HAD LITTLE, IF
ANY, PART IN IT.  THE FIRST MENTION OF OF GREEN IN CONNECTION WITH THIS
BRANCH SEEMS TO BE THE TESTIMONY THAT IN 1952 HE MADE A SPEECH AT A
MEETING THAT WAS IN SOME WAY CONNECTED WITH THE ACTIVITIES OF THE LOCAL
COMMITTEE. 

THE ULTIMATE FINDING OF THE BOARD AS TO THESE LOCAL ORGANIZATIONS WAS:
"WE FIND ON THE ENTIRE RECORD THAT THE AMERICAN COMMITTEE AND THE
VARIOUS AREA OR LOCAL COMMITTEES ARE ASSOCIATED TOGETHER FOR JOINT
ACTION ON PARTICULAR SUBJECTS.  TOGETHER THEY CONSTITUTE A VOLUNTARY
ASSOCIATION AND ONE ORGANIZATION WITHIN THE MEANING OF THE TERM
'ORGANIZATION' SET FORTH IN SECTION 3(2) OF THE STATUTE."  ONE SIMPLY
CANNOT READ THE RECORD AND COME TO THE CONCLUSION THAT THIS CONGERIES
OF INDIVIDUAL ORGANIZATIONS, LOOSELY UNITED UNDER THE AEGIS OF THE
NATIONAL COMMITTEE, WAS MERELY GREEN'S ALTER EGO AND WOULD THEREFORE
CHANGE UPON HIS DEATH. 

A COMMUNIST-FRONT ORGANIZATION IS ONE WHICH IS CONTROLLED BY A
COMMUNIST-ACTION ORGANIZATION AND WHICH IS PRIMARILY OPERATED FOR THE
PURPOSE OF GIVING AID AND SUPPORT TO COMMUNISM.  TO PROVE THIS LATTER
PART OF THE DEFINITION THE ATTORNEY GENERAL INTRODUCED BEFORE THE BOARD
EVIDENCE SHOWING THAT THE COMMITTEE ENGAGED IN THE LEGAL DEFENSE OF
PARTY MEMBERS WHO WERE DEFENDANTS IN DEPORTATION AND DENATURALIZATION
PROCEEDINGS.  MUCH OF THIS EVIDENCE APPEARS TO HAVE CONCERNED THE
ACTIVITIES OF THE LOCAL COMMITTEES.  THE BOARD FOUND, FOR EXAMPLE, THAT
"THE CASES OF JOE WEBER, REFUGIO RAMON MARTINEZ, AND JAMES MACKAY WERE
HANDLED BY THE MIDWEST COMMITTEE; THE MEXICAN DEPORTEES AND A GROUP
REFERRED TO AS THE TERMINAL ISLAND FOUR WERE HANDLED BY THE LOS ANGELES
COMMITTEE; AND THE GIACOMO QUATTRONE-PONZI CASE WAS HANDLED BY THE NEW
ENGLAND COMMITTEE."  THERE IS NO REASON TO BELIEVE THAT THIS WORK OF
THE LOCAL COMMITTEES HAS BEEN DISCONTINUED BECAUSE OF GREEN'S DEATH. 

THE CASE IS VERY MUCH ALIVE; AND THE RECORD IS BY NO MEANS STALE.  WE
SHOULD FACE UP TO THE SERIOUS ISSUES PRESENTED AND IN NO WAY AFFECTED
BY ABNER GREEN'S DEATH. 

FN1  THE ATTORNEY GENERAL BEGAN THE PRESENT PROCEEDING IN 1953 FOR AN
ORDER REQUIRING THE PETITIONER TO REGISTER AS A COMMUNIST-FRONT
ORGANIZATION, ALLEGING THAT THE PETITIONER WAS CONTROLLED BY THE
COMMUNIST PARTY.  (IMMEDIATELY PRIOR TO THE COMMENCEMENT OF THIS
PROCEEDING THE BOARD HAD ISSUED ITS REPORT OF APRIL 20, 1953, FINDING
THE PARTY TO BE A COMMUNIST-ACTION ORGANIZATION.)  HEARINGS WERE HAD
BEFORE AN EXAMINER AND CONCLUDED SOMETIME IN 1956.  THE EXAMINER'S
RECOMMENDED DECISION WAS ISSUED ON SEPTEMBER 10, 1957.  WHILE THE BOARD
HAD THE CASE UNDER ADVISEMENT, THE SECOND REMAND IN THE COMMUNIST PARTY
LITIGATION OCCURRED.  (THE HISTORY OF THIS LITIGATION IS SET OUT IN
FULL IN COMMUNIST PARTY V. CONTROL BOARD, 367 U.S. 1, AT 19-22.)  IT
WAS THEREFORE NECESSARY TO POSTPONE ACTION IN THE PRESENT CASE BECAUSE
PETITIONER HERE WAS ALLEGED TO BE A FRONT FOR THE COMMUNIST PARTY, AND
THE PROVISIONS OF THE ACT WOULD NOT COME INTO PLAY AS TO PETITIONER
UNLESS THE PARTY WERE PROVED TO BE A COMMUNIST-ACTION ORGANIZATION -
WHICH WAS OF COURSE THE PURPOSE OF THE COMMUNIST PARTY LITIGATION. 
IN 1959, AFTER THE BOARD'S SECOND MODIFIED REPORT IN THE COMMUNIST
PARTY PROCEEDING, THE BOARD REACTIVATED THIS CASE AND ORDERED THE
ATTORNEY GENERAL TO MAKE AVAILABLE TO PETITIONER CERTAIN DOCUMENTS
WHICH INTERVENING JUDICIAL DECISIONS HAD SUGGESTED WERE PRODUCIBLE. 
FURTHER PROCEEDINGS WERE HAD IN THIS CONNECTION; FURTHER ORAL ARGUMENT
WAS PRESENTED TO THE BOARD; AND THE BOARD'S REPORT AND ORDER WERE FILED
ON JUNE 27, 1960. 

ON APPEAL THE COURT OF APPEALS ON JANUARY 8, 1962, REMANDED THE CASE
TO THE BOARD TO ALLOW PETITIONER TO INTRODUCE EVIDENCE OF ALLEGED
PERJURED TESTIMONY.  ON MARCH 8, 1962, THE BOARD REAFFIRMED ITS EARLIER
ORDER.  ON DECEMBER 17, 1963, THE COURT OF APPEALS AFFIRMED THE BOARD'S
ORDER.  WE GRANTED CERTIORARI ON APRIL 27, 1964. 

FN2  ON ORAL ARGUMENT BEFORE THE BOARD ON FEBRUARY 11, 1960, COUNSEL
FOR THE PETITIONER DID ARGUE IN A GENERAL WAY THAT THE CASE WAS "STALE"
SIMPLY AS THE RESULT OF THE "PASSAGE OF TIME."  IN THE COURSE OF THIS
ARGUMENT COUNSEL OBSERVED THAT "ABNER GREEN TO MY GREAT SORROW IS NOW
DEAD.  THINGS HAVE CHANGED, AND TIMES HAVE CHANGED.  STANDARDS HAVE
CHANGED, AND EVERYBODY HAS CHANGED, I THINK, BUT THE DEPARTMENT OF
JUSTICE  ...  ."  THIS PASSING REFERENCE TO GREEN'S DEATH FALLS FAR
SHORT OF A SERIOUS EFFORT TO SHOW THAT PETITIONER WAS A LEGALLY
DIFFERENT ENTITY AFTER GREEN'S DEATH:  FOR EXAMPLE, PETITIONER MADE NO
EFFORT TO REOPEN THE RECORD FOR EVIDENCE CONCERNING GREEN'S SUCCESSOR,
ANY NEW POLICIES NOW IN EFFECT, OR THE LIKE.  AND, AS NOTED, NO EFFORT
WAS MADE IN THE COURT OF APPEALS TO HAVE THE CASE REMANDED FOR THE
TAKING OF NEW EVIDENCE. 

FN3  IN THAT CASE THE COURT OF APPEALS OBSERVED: 

"IT IS RARELY, IF EVER, POSSIBLE TO PROVE PRESENT NATURE BY SOME
INSTANTANEOUS, CONTEMPORANEOUS FACT, TOTALLY IGNORING THE WHOLE OF THE
PAST.  NOT ONLY IS THE PAST CLEARLY PERTINENT, IT MAY BE QUITE MATERIAL
TO A DETERMINATION OF PRESENT NATURE.  WHETHER IT IS MATERIAL DEPENDS
UPON WHETHER THERE IS AFFIRMATIVE EVIDENCE OF A DEPARTURE FROM THE
ESTABLISHED PAST.  IN THE ORDINARY AFFAIRS OF LIFE AND IN ORDINARY
LITIGATION, IF A PERSON OR AN ORGANIZATION IS SHOWN TO HAVE HAD OVER
MANY YEARS A CERTAIN POLICY AND PROGRAM, AND NO MORE IS SHOWN, THE
CONCLUSION IS CLEARLY INDICATED THAT HE OR IT HAS THE SAME POLICY AND
PROGRAM IN THE PRESENT."  96 U.S. APP.  D.C. 66, 105, 223 F.2D 531,
570. 

MR. JUSTICE BLACK, DISSENTING.* 

*THIS OPINION APPLIES ALSO TO NO. 65, VETERANS OF THE ABRAHAM LINCOLN
BRIGADE V. SUBVERSIVE ACTIVITIES CONTROL BOARD, POST, P. 513. 

WHILE I HAVE JOINED THE DISSENTS OF MR. JUSTICE DOUGLAS FROM THE
COURT'S ACTION IN REMANDING THESE CASES WITHOUT DECIDING THE IMPORTANT
CONSTITUTIONAL QUESTIONS INVOLVED, I HAVE ADDITIONAL REASONS FOR
OBJECTING TO THE REMANDS.  IN COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES
CONTROL BOARD, 367 U.S. 1, 137 (DISSENTING OPINION), I STATED AT SOME
LENGTH MY REASONS FOR BELIEVING THAT THE SUBVERSIVE ACTIVITIES CONTROL
ACT OF 1950, AS AMENDED, 64 STAT. 987, 50 U.S.C. SECS. 781-826 (1958
ED.), ON WHICH THE GOVERNMENT'S CASE HERE RESTS, VIOLATES A NUMBER OF
PROVISIONS OF OUR CONSTITUTION AND BILL OF RIGHTS IN MANY RESPECTS. 
SEE ALSO APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 517 (CONCURRING
OPINION).  I THINK THAT AMONG OTHER THINGS THE ACT IS A BILL OF
ATTAINDER; THAT IT IMPOSES CRUEL, UNUSUAL AND SAVAGE PUNISHMENTS FOR
THOUGHT, SPEECH, WRITING, PETITION AND ASSEMBLY; AND THAT IT
STIGMATIZES PEOPLE FOR THEIR BELIEFS, ASSOCIATIONS AND VIEWS ABOUT
POLITICS, LAW, AND GOVERNMENT.  THE ACT HAS BORROWED THE WORST FEATURES
OF OLD LAWS INTENDED TO PUT SHACKLES ON THE MINDS AND BODIES OF MEN, TO
MAKE THEM CONFESS TO CRIME, TO MAKE THEM MISERABLE WHILE IN THIS
COUNTRY, AND TO MAKE IT A CRIME EVEN TO ATTEMPT TO GET OUT OF IT.*  IT
IS DIFFICULT TO FIND LAWS MORE THOUGHT-STIFLING THAN THIS ONE EVEN IN
COUNTRIES CONSIDERED THE MOST BENIGHTED.  PREVIOUS EFFORTS TO HAVE THIS
COURT PASS ON THE CONSTITUTIONALITY OF THE VARIOUS PROVISIONS OF THIS
FREEDOM-CRUSHING LAW HAVE MET WITH FRUSTRATION ON ONE EXCUSE OR
ANOTHER.  I PROTEST AGAINST FOLLOWING THIS COURSE AGAIN.  MY VOTE IS TO
HEAR THE CASE NOW AND HOLD THE LAW TO BE WHAT I THINK IT IS - A
WHOLESALE DENIAL OF WHAT I BELIEVE TO BE THE CONSTITUTIONAL HERITAGE OF
EVERY FREEDOM-LOVING AMERICAN. 

*IN APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, THIS COURT HELD
UNCONSTITUTIONAL ON ITS FACE THE WHOLE OF SEC. 6 OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT OF 1950, AS AMENDED, 64 STAT. 993, 50 U.S.C.
SEC. 785 (1958 ED.), WHICH MADE IT UNLAWFUL FOR ANY MEMBER OF AN
ORGANIZATION REGISTERED UNDER THE ACT "TO MAKE APPLICATION FOR A
PASSPORT  ...  OR  ...  TO USE OR ATTEMPT TO USE ANY SUCH PASSPORT." 
..END :



















VETERANS OF THE ABRAHAM LINCOLN BRIGADE V. SUBVERSIVE ACTIVITIES CONTROL
BOARD 380 U.S. 513 


NO. 65.  ARGUED DECEMBER 9, 1964.  - DECIDED APRIL 26, 1965.  - 117 U.S.
APP. D.C. 404, 331 F.2D 64, JUDGMENT VACATED AND CAUSE REMANDED. 


JUDGMENT OF THE COURT OF APPEALS AFFIRMING RESPONDENT'S ORDER THAT
PETITIONER REGISTER AS A COMMUNIST-FRONT ORGANIZATION IS VACATED, IN
VIEW OF THE STALENESS OF THE RECORD IN THIS CASE. 

VETERANS OF THE ABRAHAM LINCOLN BRIGADE V. SUBVERSIVE ACTIVITIES CONTROL
BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

PETITIONER WAS ORDERED BY THE SUBVERSIVE ACTIVITIES CONTROL BOARD TO
REGISTER AS A COMMUNIST-FRONT ORGANIZATION UNDER SEC. 7 OF THE
SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, AS AMENDED, 64 STAT. 993, 50
U.S.C. SEC. 786 (1958 ED.), AND THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT AFFIRMED.  117 U.S. APP. D.C. 404, 331 F.2D 64.  WE
GRANTED CERTIORARI, 377 U.S. 989.  IN THIS CASE, THE ORDER TO REGISTER
WAS BASED ALMOST EXCLUSIVELY ON EVENTS BEFORE 1950, AND VERY LARGELY ON
EVENTS BEFORE 1940.  THE HEARINGS THEMSELVES WERE CONCLUDED IN NOVEMBER
1954, MORE THAN 10 YEARS AGO.  ON SO STALE A RECORD WE DO NOT THINK IT
IS EITHER NECESSARY OR APPROPRIATE THAT WE DECIDE THE SERIOUS
CONSTITUTIONAL QUESTIONS RAISED BY THE ORDER.  SEE AMERICAN COMMITTEE
FOR PROTECTION OF FOREIGN BORN V.  SUBVERSIVE ACTIVITIES CONTROL BOARD,
ANTE, P. 503.  THE JUDGMENT IS VACATED AND THE CAUSE REMANDED FOR
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 

FOR DISSENTING OPINION OF MR. JUSTICE BLACK, SEE ANTE, P. 511. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
HARLAN CONCUR, DISSENTING. 

I THINK THIS CASE IS RIPE FOR DECISION.  THE CONTROVERSY IS REAL, NOT
FEIGNED.  ALL OF THE RELEVANT FACTS ONE NEEDS TO KNOW TO RESOLVE THE
CONSTITUTIONAL QUESTION ARE EXPOSED IN THE PRESENT RECORD. 

THIS IS THE FAMOUS BRIGADE OF AMERICANS WHO FOUGHT IN THE SPANISH
CIVIL WAR AGAINST FRANCO.  APPROXIMATELY 3,000 AMERICAN YOUTHS WERE
MEMBERS; AND OF THESE ONLY ABOUT 1,800 SURVIVED.  PETITIONER WAS FORMED
IN 1939 AS AN UNINCORPORATED ASSOCIATION AND WAS INCORPORATED IN 1940
UNDER THE LAWS OF NEW YORK, ITS CHARTER BEING FORFEITED IN 1952 FOR
FAILURE TO FILE REQUIRED REPORTS. 

THE RECORD IS DETAILED.  THE COURT OF APPEALS, WHICH SUSTAINED THE
SUBVERSIVE ACTIVITIES CONTROL BOARD IN FINDING THAT PETITIONER IS A
"COMMUNIST-FRONT ORGANIZATION" WITHIN THE MEANING OF SEC. 3(4) OF THE
SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, AS AMENDED, 64 STAT.  989,
50 U.S.C. SEC. 782(4) (117 U.S. APP. D.C. 404, 331 F.2D 64), SPOKE OF
"THE TREMENDOUS VOLUME OF THE RECORD" AND THE "ALMOST NUMBERLESS FACETS
OF FACT INVOLVED."  ID., AT 413, 331 F.2D, AT 73.  THE HISTORY OF THE
FORMATION OF THE BRIGADE, ITS RELATIONSHIP WITH THE COMMUNIST PARTY AND
WITH COMMUNISTS, THE MANNER IN WHICH INTERNATIONAL BRIGADES OF THIS
KIND WERE EMPLOYED BY COMMUNISTS, THE ROLE OF COMMUNISTS IN FORMING
THIS BRIGADE, THE AFFILIATIONS OF OFFICERS OF THE BRIGADE, THE IDEAS
AND PROGRAM PROMOTED BY THE BRIGADE'S OFFICIAL ORGAN, VOLUNTEER FOR
LIBERTY, THE EFFORTS OF THE BRIGADE TO GET ITS MEMBERS EMPLOYED IN
UNIONS, OFFICES, OR FACTORIES WHERE A COMMUNIST UNIT OR FUNCTIONARY WAS
LOCATED, THE EXTENT TO WHICH THE BRIGADE RESPONDED TO PARTY DISCIPLINE,
AND THE EXTENT TO WHICH THE BRIGADE AIDED AND SUPPORTED THE PARTY - ALL
WERE FULLY EXPLORED. 

SINCE 1950 THE BRIGADE'S AFFAIRS HAVE BEEN RUN ALMOST ENTIRELY BY AN
EXECUTIVE SECRETARY AND A NATIONAL COMMANDER.  SINCE 1950 ITS
ACTIVITIES HAVE CONSISTED PRINCIPALLY OF SOCIAL AFFAIRS, REHABILITATING
AND RESETTLING VETERANS AND GETTING THEM EMPLOYMENT, MAKING STATEMENTS
IN OPPOSITION TO THE FRANCO REGIME, SUPPORTING ITS MEMBERS WHO WERE
INDICTED UNDER THE SMITH ACT, AND DEFENDING ITSELF IN THIS PROCEEDING. 

THIS PROCEEDING STARTED IN 1953, WHEN THE ATTORNEY GENERAL PETITIONED
THE BOARD FOR AN ORDER REQUIRING THE BRIGADE TO REGISTER AS A COMMUNIST
FRONT ORGANIZATION.  HEARINGS BEFORE THE BOARD COMMENCED MAY 3, 1954,
AND ENDED NOVEMBER 16, 1954.  OVER A YEAR LATER THE BOARD ISSUED A
REGISTRATION ORDER AGAINST THE BRIGADE, AND ITS REPORT IN THE CASE. 
THE FINAL ORDER OF THE BOARD IS DATED DECEMBER 21, 1955.  THE OPINION
OF THE COURT OF APPEALS COMES EIGHT YEARS LATER* AND IS DATED DECEMBER
17, 1963. 

*THE FINDING OF THE BOARD THAT THE COMMUNIST PARTY WAS A COMMUNIST
ACTION ORGANIZATION WAS A PRODUCT OF THE LITIGATION WHICH TERMINATED ON
JUNE 5, 1961, WITH THIS COURT'S DECISION IN COMMUNIST PARTY V. CONTROL
BOARD, 367 U.S. 1.  THAT LITIGATION WAS IN PROGRESS IN THE YEARS
BETWEEN 1950 AND 1961; AND SINCE THE FINDING THAT THE PARTY WAS A
COMMUNIST-ACTION ORGANIZATION WAS NECESSARY TO THE BOARD'S RESULT IN
THIS CASE, THE PRESENT CASE WAS HELD BY THE COURT OF APPEALS PENDING
THE OUTCOME OF THE COMMUNIST PARTY LITIGATION.  SEE 117 U.S. APP. D.C.
404, AT 406, 331 F.2D 64, AT 66.  THE PRESENT CASE WAS THEN ARGUED
BEFORE THE COURT OF APPEALS IN OCTOBER OF 1962, AND DECISION WAS
RENDERED ON DECEMBER 17, 1963. 

BUT NO ONE SUGGESTS THAT THERE HAVE BEEN ANY BASIC CHANGES IN THE
PATTERN OF THE BRIGADE'S ACTIVITIES EITHER SINCE THE BOARD'S ORDER OR
THE COURT'S JUDGMENT.  THE COURT OF APPEALS FOUND NO DIFFICULTY IN
CONCLUDING THAT AS OF THE DATE OF THE RECORD THE BRIGADE CONTINUED TO
BE WHAT IT HAD BEEN IN THE PAST: 

"THE EVENTS IN 1950-1954 WERE NOT FACTUALLY ISOLATED.  THE BRIGADE
CONTINUED TO OPERATE AFTER 1950.  IT HAD THE SAME OFFICERS AND OCCUPIED
THE SAME OFFICES.  IT CONTINUED TO PUBLISH ITS MAGAZINE.  THE CHARACTER
AND TONE OF ITS DECLARATIONS UPON THE SUBJECTS WITH WHICH IT DEALT WERE
THE SAME AS THOSE IT HAD ALWAYS UTILIZED.  SO THAT FACTUALLY, ON THIS
RECORD, THE POST-1950 ACTIVITIES AND POLICIES APPEAR AS A CONTINUED,
ALTHOUGH DIMINISHED, STREAM, RATHER THAN AS A SEPARATE, NEW PHASE OF
LIFE."  117 U.S. APP. D.C., AT 412-413, 331 F.2D, AT 72-73. 

NONE OF THE PARTIES BEFORE US HAS SUGGESTED THAT THE RECORD IS STALE
OR INCOMPLETE; AND AS NOTED IN MY DISSENTING OPINION IN AMERICAN
COMMITTEE V. CONTROL BOARD, ANTE, P. 507, THE ACT CONTAINS A SPECIAL
PROVISION COVERING THAT CONTINGENCY.  NONE OF THE PARTIES BEFORE US HAS
SUGGESTED THAT WE NEED TO KNOW MORE ABOUT THE BRIGADE SINCE THE BOARD'S
DECISION IN 1955.  WE ARE TOLD BY COUNSEL THAT WHAT THE BRIGADE ONCE
WAS, IT STILL IS. 

THERE IS ONE WAY AND ONE WAY ONLY IN WHICH THIS CASE IS GETTING STALE
WITH THE PASSAGE OF TIME.  AND THAT IS THAT THE BRIGADE'S MEMBERSHIP IS
NOT BEING RENEWED BY DEPLETED.  ITS MEMBERSHIP, AS NOTED, IS MADE UP OF
AMERICANS WHO FOUGHT IN THE SPANISH WAR AGAINST FRANCO.  THE MORTALITY
TABLE HAS CAUSED THAT LIST TO SHRINK AND IT WILL CONTINUE TO SHRINK. 
IN 1955 THERE WERE ONLY 600 SURVIVORS OF THE BRIGADE, NOT ALL OF WHOM
WERE MEMBERS OF PETITIONER.  HENCE IN SOME MONTHS OR YEARS THE CASE
WILL RETURN TO US MORE STALE THAN IT IS AT THE PRESENT TIME. 

WITH ALL DUE RESPECT, I THINK IT IS INDEFENSIBLE NOT TO DECIDE THE
IMPORTANT CONSTITUTIONAL QUESTIONS TENDERED HERE AND NOW. 
..END :








CALLENDER V. FLORIDA 380 U.S. 519 


NO. 58.  DECIDED APRIL 26, 1965.  - CERTIORARI GRANTED AND JUDGMENTS
REVERSED. 


CALLENDER ET AL. V. FLORIDA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENTS ARE
REVERSED.  BOYNTON V. VIRGINIA, 364 U.S. 454, ABERNATHY V. ALABAMA,
ANTE, P. 447. 
..END :
















GOLD V. DICARLO, COMMISSIONER OF LICENSES OF CITY OF NEW YORK 380 U.S.
520 


NO. 901.  DECIDED APRIL 26, 1965.  - 235 F. SUPP. 817, AFFIRMED. 


GOLD ET AL. V. DICARLO, COMMISSIONER OF LICENSES OF CITY OF NEW YORK, ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :
















CORPORA V. NEW YORK 380 U.S. 520 


NO. 934.  DECIDED APRIL 26, 1965.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


CORPORA V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















CUMBERLAND FARMS NORTHERN, INC. V. MAINE MILK COMMISSION 380 U.S. 521 


NO. 904.  DECIDED APRIL 26, 1965.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  160 ME. 367, 205 A.2D
146. 


CUMBERLAND FARMS NORTHERN, INC. V. MAINE MILK COMMISSION. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MAINE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BROWN V. CALIFORNIA 380 U.S. 521 


NO. 194, MISC.  DECIDED APRIL 26, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


BROWN V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WESTERN & SOUTHERN LIFE INSURANCE CO. V. NATIONAL LABOR RELATIONS BOARD
380 U.S. 522 


NO. 91.  DECIDED APRIL 26, 1965.  - CERTIORARI GRANTED, JUDGMENT VACATED
AND CASE REMANDED.  - REPORTED BELOW:  328 F.2D 891. 


WESTERN & SOUTHERN LIFE INSURANCE CO. V. NATIONAL LABOR RELATIONS
BOARD. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED AND THE CASE REMANDED TO THAT COURT WITH
INSTRUCTIONS TO REMAND IT TO THE NATIONAL LABOR RELATIONS BOARD FOR
FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT IN LABOR
BOARD V. METROPOLITAN INS. CO., ANTE, P. 438.  THE JUDGMENT SHALL ISSUE
FORTHWITH.  IT IS SO ORDERED. 
..END :










METROPOLITAN LIFE INSURANCE CO. V. NATIONAL LABOR RELATIONS BOARD 380
U.S. 523 


NO. 56.  DECIDED APRIL 26, 1965.  - CERTIORARI GRANTED, JUDGMENT VACATED
AND CASE REMANDED.  - REPORTED BELOW:  328 F.2D 820. 


METROPOLITAN LIFE INSURANCE CO. V. NATIONAL LABOR RELATIONS BOARD. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED AND THE CASE REMANDED TO THAT COURT WITH
INSTRUCTIONS TO REMAND IT TO THE NATIONAL LABOR RELATIONS BOARD FOR
FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT IN LABOR
BOARD V. METROPOLITAN INS. CO., ANTE, P. 438.  THE JUDGMENT SHALL ISSUE
FORTHWITH.  IT IS SO ORDERED. 
..END :











THOMAS V. MISSISSIPPI 380 U.S. 524 


NO. 181.  DECIDED APRIL 26, 1965.  - CERTIORARI GRANTED AND JUDGMENTS
REVERSED.  - REPORTED BELOW: SEE 248 MISS.  850, 160 SO. 2D 657, 161
SO. 2D 159, 521. 


THOMAS ET AL. V. MISSISSIPPI. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
MISSISSIPPI. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENTS ARE
REVERSED.  BOYNTON V. VIRGINIA, 364 U.S. 454, ABERNATHY V. ALABAMA,
ANTE, P. 447. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











METROPOLITAN LIFE INSURANCE CO. V. NATIONAL LABOR RELATIONS BOARD 380
U.S. 525 


NO. 229.  DECIDED APRIL 26, 1965.  - CERTIORARI GRANTED, JUDGMENT
VACATED AND CASE REMANDED.  - REPORTED BELOW:  330 F.2D 62. 


METROPOLITAN LIFE INSURANCE CO. V. NATIONAL LABOR RELATIONS BOARD. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED AND THE CASE REMANDED TO THAT COURT WITH
INSTRUCTIONS TO REMAND IT TO THE NATIONAL LABOR RELATIONS BOARD FOR
FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT IN LABOR
BOARD V. METROPOLITAN INS. CO., ANTE, P. 438.  THE JUDGMENT SHALL ISSUE
FORTHWITH.  IT IS SO ORDERED. 
..END :











CAROLINA & NORTHWESTERN RAILWAY CO. V. UNITED STATES 380 U.S. 526 


NO. 838.  DECIDED APRIL 26, 1965.  - 234 F. SUPP. 112, AFFIRMED. 


CAROLINA & NORTHWESTERN RAILWAY CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















MURRAY V. UNITED STATES 380 U.S. 527 


NO. 260, MISC.  DECIDED APRIL 26, 1965.  - CERTIORARI GRANTED, JUDGMENT
VACATED AND CASE REMANDED.  - REPORTED BELOW:  333 F.2D 409. 


MURRAY V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  UPON CONSIDERATION OF THE
SUGGESTION OF THE SOLICITOR GENERAL AND AN EXAMINATION OF THE ENTIRE
RECORD, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT
OF APPEALS TO CONSIDER THE VALIDITY OF THE ARREST OF HENRY MURRAY AND
OF THE SEARCH FOR AND SEIZURE OF THE MONEY IN QUESTION AS AN INCIDENT
OF SUCH ARREST. 
..END :











FEDERAL TRADE COMMISSION V. COLGATE-PALMOLIVE CO. 380 U.S. 374 


NO. 62.  ARGUED DECEMBER 10, 1964.  - DECIDED APRIL 5, 1965.  - 326 F.2D
517, REVERSED AND REMANDED. 


THE FEDERAL TRADE COMMISSION CHARGED RESPONDENTS, AN ADVERTISER AND AN
ADVERTISING AGENCY, WITH USING COMMERCIALS THAT WERE DECEPTIVE WITHIN
THE MEANING OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT.  THE
COMMERCIALS PURPORTED TO GIVE VIEWERS VISUAL PROOF THAT THE
ADVERTISER'S SHAVING CREAM COULD SOFTEN "SANDPAPER," BUT UNKNOWN TO
VIEWERS THE SUBSTANCE THAT APPEARED TO BE SANDPAPER IN THE COMMERCIALS
WAS IN FACT A SIMULATED PROP, OR "MOCK-UP," MADE OF PLEXIGLASS TO WHICH
SAND HAD BEEN APPLIED.  AFTER A HEARING, THE COMMISSION ISSUED A CEASE
AND-DESIST ORDER AGAINST RESPONDENTS THAT COULD BE INTERPRETED TO
FORBID ALL USE OF UNDISCLOSED SIMULATIONS IN TELEVISION COMMERCIALS. 
THE COURT OF APPEALS SET ASIDE THE ORDER AS TOO BROAD.  FIVE MONTHS
LATER THE COMMISSION ISSUED A REVISED ORDER PROHIBITING RESPONDENTS
FROM PRESENTING ADVERTISEMENTS DEPICTING A TEST, EXPERIMENT OR
DEMONSTRATION REPRESENTED AS ACTUAL PROOF OF A PRODUCT CLAIM BUT NOT IN
FACT CONSTITUTING ACTUAL PROOF BECAUSE OF THE UNDISCLOSED USE OF A PROP
OR MOCK-UP.  FROM THE COURT'S JUDGMENT SETTING ASIDE THAT ORDER THE
COMMISSION PETITIONED THIS COURT FOR CERTIORARI.  HELD: 

1.  THE 90-DAY PERIOD ALLOWED FOR FILING A PETITION FOR CERTIORARI BY
28 U.S.C.  SEC. 2101(C) COMMENCED ON THE DATE OF THE SECOND JUDGMENT BY
THE COURT OF APPEALS SINCE THE COMMISSION'S SECOND ORDER WAS A GOOD
FAITH ATTEMPT TO INCORPORATE THE LEGAL PRINCIPLES CONTAINED IN THE
COURT'S FIRST MANDATE AND, AT THE LEAST, THE COURT'S SECOND OPINION
RESOLVED A GENUINE AMBIGUITY IN THE FIRST.  PP. 378-384. 

2.  IT IS MATERIAL DECEPTIVE PRACTICE TO CONVEY TO TELEVISION VIEWERS
THE FALSE IMPRESSION THAT THEY ARE SEEING AN ACTUAL TEST, EXPERIMENT OR
DEMONSTRATION WHICH PROVES A PRODUCT CLAIM WHEN THEY ARE NOT BECAUSE OF
THE UNDISCLOSED USE OF MOCK-UPS.  PP.  384-392. 

(A)  THE FTC'S JUDGMENT AS TO WHAT CONSTITUTES A DECEPTIVE PRACTICE
IS TO BE ACCORDED GREAT WEIGHT BY REVIEWING COURTS, AND THIS ADMONITION
IS ESPECIALLY TRUE WITH RESPECT TO ALLEGEDLY DECEPTIVE ADVERTISING
SINCE THE FINDING OF A SEC. 5 VIOLATION IN THIS FIELD RESTS SO HEAVILY
ON INFERENCE AND PRAGMATIC JUDGMENT.  P. 385. 

(B)  THE MISREPRESENTATION OF ANY FACT SO LONG AS IT MATERIALLY
INDUCES A PURCHASER'S DECISION TO BUY IS A DECEPTION PROHIBITED BY SEC.
5.  P. 387. 

3.  THE ORDER ISSUED IN THIS CASE WAS WELL WITHIN THE COMMISSION'S
WIDE DISCRETION TO DETERMINE THE TYPE OF ORDER NECESSARY TO COPE WITH
THE UNFAIR PRACTICES FOUND.  P. 392-395. 

(A)  THE CRUCIAL TERMS OF THE PRESENT ORDER ARE AS SPECIFIC AS THE
CIRCUMSTANCES WILL PERMIT.  P. 393. 

(B)  IN BORDERLINE SITUATIONS THE RESPONDENTS CAN OBLIGE THE FTC TO
ADVISE THEM WHETHER A CONTEMPLATED COMMERCIAL COMPLIES WITH THE ORDER. 
P. 394. 

(C)  SINCE THE RESPONDENTS PRODUCED THREE DIFFERENT COMMERCIALS WHICH
EMPLOYED THE SAME DECEPTIVE PRACTICE, THE COMMISSION HAD A SUFFICIENT
BASIS FOR BELIEVING THAT THE RESPONDENTS WOULD BE INCLINED TO USE
SIMILAR COMMERCIALS WITH RESPECT TO OTHER PRODUCTS THEY ADVERTISE.  P.
395. 

FEDERAL TRADE COMMISSION V. COLGATE-PALMOLIVE CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE BASIC QUESTION BEFORE US IS WHETHER IT IS A DECEPTIVE TRADE
PRACTICE, PROHIBITED BY SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT,
(FN1) TO REPRESENT FALSELY THAT A TELEVISED TEST, EXPERIMENT, OR
DEMONSTRATION PROVIDES A VIEWER WITH VISUAL PROOF OF A PRODUCT CLAIM,
REGARDLESS OF WHETHER THE PRODUCT CLAIM IS ITSELF TRUE. 

THE CASE ARISES OUT OF AN ATTEMPT BY RESPONDENT COLGATE-PALMOLIVE
COMPANY TO PROVE TO THE TELEVISION PUBLIC THAT ITS SHAVING CREAM,
"RAPID SHAVE," OUTSHAVES THEM ALL.  RESPONDENT TED BATES & COMPANY,
INC., AN ADVERTISING AGENCY, PREPARED FOR COLGATE THREE ONE-MINUTE
COMMERCIALS DESIGNED TO SHOW THAT RAPID SHAVE COULD SOFTEN EVEN THE
TOUGHNESS OF SANDPAPER.  EACH OF THE COMMERCIALS CONTAINED THE SAME
"SANDPAPER TEST."  THE ANNOUNCER INFORMED THE AUDIENCE THAT, "TO PROVE
RAPID SHAVE'S SUPER-MOISTURIZING POWER, WE PUT IT RIGHT FROM THE CAN
ONTO THIS TOUGH, DRY SANDPAPER.  IT WAS APPLY  ...  SOAK  ...  AND OFF
IN A STROKE."  WHILE THE ANNOUNCER WAS SPEAKING, RAPID SHAVE WAS
APPLIED TO A SUBSTANCE THAT APPEARED TO BE SANDPAPER, AND IMMEDIATELY
THEREAFTER A RAZOR WAS SHOWN SHAVING THE SUBSTANCE CLEAN. 

THE FEDERAL TRADE COMMISSION ISSUED A COMPLAINT AGAINST RESPONDENTS
COLGATE AND BATES CHARGING THAT THE COMMERCIALS WERE FALSE AND
DECEPTIVE.  THE EVIDENCE BEFORE THE HEARING EXAMINER DISCLOSED THAT
SANDPAPER OF THE TYPE DEPICTED IN THE COMMERCIALS COULD NOT BE SHAVED
IMMEDIATELY FOLLOWING THE APPLICATION OF RAPID SHAVE, BUT REQUIRED A
SUBSTANTIAL SOAKING PERIOD OF APPROXIMATELY 80 MINUTES.  THE EVIDENCE
ALSO SHOWED THAT THE SUBSTANCE RESEMBLING SANDPAPER WAS IN FACT A
SIMULATED PROP, OR "MOCK-UP," MADE OF PLEXIGLASS TO WHICH SAND HAD BEEN
APPLIED.  HOWEVER, THE EXAMINER FOUND THAT RAPID SHAVE COULD SHAVE
SANDPAPER, EVEN THOUGH NOT IN THE SHORT TIME REPRESENTED BY THE
COMMERCIALS, AND THAT IF REAL SANDPAPER HAD BEEN USED IN THE
COMMERCIALS THE INADEQUACIES OF TELEVISION TRANSMISSION WOULD HAVE MADE
IT APPEAR TO VIEWERS TO BE NOTHING MORE THAN PLAIN, COLORED PAPER.  THE
EXAMINER DISMISSED THE COMPLAINT BECAUSE NEITHER MISREPRESENTATION -
CONCERNING THE ACTUAL MOISTENING TIME OR THE IDENTITY OF THE SHAVED
SUBSTANCE - WAS IN HIS OPINION A MATERIAL ONE THAT WOULD MISLEAD THE
PUBLIC. 

THE COMMISSION, IN AN OPINION DATED DECEMBER 29, 1961, REVERSED THE
HEARING EXAMINER.  IT FOUND THAT SINCE RAPID SHAVE COULD NOT SHAVE
SANDPAPER WITHIN THE TIME DEPICTED IN THE COMMERCIALS, RESPONDENTS HAD
MISREPRESENTED THE PRODUCT'S MOISTURIZING POWER.  MOREOVER, THE
COMMISSION FOUND THAT THE UNDISCLOSED USE OF A PLEXIGLASS SUBSTITUTE
FOR SANDPAPER WAS AN ADDITIONAL MATERIAL MISREPRESENTATION THAT WAS A
DECEPTIVE ACT SEPARATE AND DISTINCT FROM THE MISREPRESENTATION
CONCERNING RAPID SHAVE'S UNDERLYING QUALITIES.  EVEN IF THE SANDPAPER
COULD BE SHAVED JUST AS DEPICTED IN THE COMMERCIALS, THE COMMISSION
FOUND THAT VIEWERS HAD BEEN MISLED INTO BELIEVING THEY HAD SEEN IT DONE
WITH THEIR OWN EYES.  AS A RESULT OF THESE FINDINGS THE COMMISSION
ENTERED A CEASE-AND-DESIST ORDER AGAINST THE RESPONDENTS. 

AN APPEAL WAS TAKEN TO THE COURT OF APPEALS FOR THE FIRST CIRCUIT
WHICH RENDERED AN OPINION ON NOVEMBER 20, 1962.  THAT COURT SUSTAINED
THE COMMISSION'S CONCLUSION THAT RESPONDENTS HAD MISREPRESENTED THE
QUALITIES OF RAPID SHAVE, BUT IT WOULD NOT ACCEPT THE COMMISSION'S
ORDER FORBIDDING THE FUTURE USE OF UNDISCLOSED SIMULATIONS IN
TELEVISION COMMERCIALS.  IT SET ASIDE THE COMMISSION'S ORDER AND
DIRECTED THAT A NEW ORDER BE ENTERED.  ON MAY 7, 1963, THE COMMISSION,
OVER THE PROTEST OF RESPONDENTS, ISSUED A NEW ORDER NARROWING AND
CLARIFYING ITS ORIGINAL ORDER TO COMPLY WITH THE COURT'S MANDATE.  THE
COURT OF APPEALS AGAIN FOUND UNSATISFACTORY THAT PORTION OF THE ORDER
DEALING WITH SIMULATED PROPS AND REFUSED TO ENFORCE IT.  WE GRANTED
CERTIORARI, 377 U.S. 942, TO CONSIDER THIS ASPECT OF THE CASE AND DO
NOT HAVE BEFORE US ANY QUESTION CONCERNING THE MISREPRESENTATION THAT
RAPID SHAVE COULD SHAVE SANDPAPER IMMEDIATELY AFTER APPLICATION, THAT
BEING CONCEDED. 

                                        I. 

A THRESHOLD QUESTION PRESENTED IS WHETHER THE PETITION FOR CERTIORARI
WAS FILED WITHIN 90 DAYS AFTER THE ENTRY OF THE JUDGMENT BELOW AS
REQUIRED BY 28 U.S.C. SEC. 2101(C) (1958 ED.).  RESPONDENTS CLAIM THAT
THE FAILURE OF THE COMMISSION TO SEEK CERTIORARI FROM THE JUDGMENT OF
THE COURT OF APPEALS RENDERED ON NOVEMBER 20, 1962, BARRED A SUBSEQUENT
ORDER PROHIBITING THE USE OF SIMULATED PROPS IN COMMERCIALS THAT OFFER
VISUAL PROOF OF A PRODUCT CLAIM. 

AFTER A COURT OF APPEALS HAS SET ASIDE AN ORDER OF THE COMMISSION ON
A POINT OF LAW, THE COMMISSION MAY SEEK CERTIORARI IF IT DISAGREES WITH
THE COURT'S LEGAL CONCLUSION.  SECTION 5(I) OF THE FEDERAL TRADE
COMMISSION ACT (FN2) CONTEMPLATES THAT WHEN THE TIME FOR FILING A
PETITION FOR CERTIORARI HAS PASSED WITHOUT A PETITION BEING FILED, THE
COMMISSION WILL ENTER AN ORDER IN ACCORDANCE WITH THE MANDATE OF THE
COURT OF APPEALS.  THE COMMISSION MAY NOT MERELY RESTATE ITS FORMER
POSITION IN A NEW ORDER AND THEN APPLY FOR CERTIORARI WHEN THE COURT OF
APPEALS REITERATES ITS PREVIOUS OBJECTION.  AS WAS SAID IN FEDERAL
POWER COMM'N V. IDAHO POWER CO., 344 U.S. 17, 20, "IF THE COURT DID NO
MORE BY THE SECOND JUDGMENT THAN TO RESTATE WHAT IT HAD DECIDED BY THE
FIRST ONE  ...  THE 90 DAYS WOULD START TO RUN FROM THE FIRST
JUDGMENT."  TO THE SAME EFFECT SEE FEDERAL TRADE COMM'N V. MINNEAPOLIS
HONEYWELL REGULATOR CO., 344 U.S. 206, 211.  HOWEVER, IT HAS ALSO BEEN
HELD THAT WHEN A REVIEWING COURT FINDS A LEGAL ERROR IN AN
ADMINISTRATIVE ORDER, THE AGENCY IS NOT FORECLOSED UPON THE REMAND OF
THE CASE FROM ENFORCING THE LEGISLATIVE POLICY OF THE ACT IT
ADMINISTERS, PROVIDED THE NEW ORDER DOES NOT CONFLICT WITH THE
REVIEWING COURT'S MANDATE.  (FN3) 

OBVIOUSLY, THE COURT WHICH DRAFTED THE MANDATE IS NORMALLY IN THE
BEST POSITION TO DETERMINE WHETHER THE COMMISSION'S SUBSEQUENT ORDER IS
CONSISTENT WITH THE MANDATE, BUT THIS COURT IS NEVER FORECLOSED FROM
DETERMINING THE ISSUE FOR ITSELF.  (FN4)  THE RESOLUTION OF THIS ISSUE
IN THE PRESENT CASE REQUIRES A DETAILED ANALYSIS OF THE VARIOUS
OPINIONS, MANDATES AND ORDERS ISSUED BY THE COMMISSION AND THE COURT OF
APPEALS. 

IN ITS INITIAL OPINION, DATED DECEMBER 29, 1961, THE COMMISSION
COMMENTED THAT THE HEART OF THE COMMERCIALS WAS THE VISUAL "SANDPAPER
TEST" WHICH WAS DESIGNED TO LEAVE THE VIEWER WITH THE IMPRESSION THAT
HE HAD ACTUALLY SEEN SUCH AN EXPERIMENT BEING PERFORMED.  THE
COMMISSION EXPRESSED THE VIEW THAT WITHOUT THIS VISIBLE PROOF OF RAPID
SHAVE'S MOISTURIZING ABILITY SOME VIEWERS MIGHT NOT HAVE BEEN PERSUADED
TO BUY THE PRODUCT.  THE COMMISSION THEN ENTERED INTO A FAR-REACHING
DISCUSSION ON THE USE OF MOCK-UPS IN TELEVISION AND THE RELATIONSHIP
BETWEEN "TRUTH" AND "TELEVISION SALESMANSHIP," AND FINALLY CONCLUDED
THAT THE USE OF THE PLEXIGLASS PROP WAS A DECEPTIVE PRACTICE.  THE
COMMISSION'S ORDER WAS AS INCLUSIVE AS ITS DISCUSSION.  IT ORDERED BOTH
RESPONDENTS TO CEASE AND DESIST FROM: 

"REPRESENTING, DIRECTLY OR BY IMPLICATION, IN DESCRIBING, EXPLAINING,
OR PURPORTING TO PROVE THE QUALITY OR MERITS OF ANY PRODUCT, THAT
PICTURES, DEPICTIONS, OR DEMONSTRATIONS  ...  ARE GENUINE OR ACCURATE
REPRESENTATIONS  ...  OF, OR PROVE THE QUALITY OR MERITS OF, ANY
PRODUCT, WHEN SUCH PICTURES, DEPICTIONS, OR DEMONSTRATIONS ARE NOT IN
FACT GENUINE OR ACCURATE REPRESENTATIONS  ... OF, OR DO NOT PROVE THE
QUALITY OR MERITS OF, ANY SUCH PRODUCT."  (FN5) 

THE COURT OF APPEALS UNDERSTANDABLY WAS CONCERNED WITH THE BROAD
LANGUAGE IN THE COMMISSION'S OPINION AND ORDER, ESPECIALLY SINCE THE
COMMISSION WAS NOT DEALING WITH AN ESTABLISHED DECEPTIVE PRACTICE BUT
WAS APPLYING THE FLEXIBLE STANDARDS OF SEC. 5 TO A HITHERTO UNEXPLORED
AREA.  THE BREADTH OF THE COMMISSION'S ORDER WAS POTENTIALLY LIMITLESS,
APPARENTLY ESTABLISHING A PER SE RULE PROHIBITING THE USE OF SIMULATED
PROPS IN ALL TELEVISION COMMERCIALS, SINCE COMMERCIALS BY DEFINITION
DESCRIBE "THE QUALITIES OR MERITS" OF PRODUCTS.  THE COURT'S IMPRESSION
THAT THE ORDER WAS "QUITE AMBIGUOUS" WAS NOT ALLEVIATED WHEN IN ORAL
ARGUMENT COUNSEL FOR THE COMMISSION STATED THAT IF A PROMINENT PERSON
APPEARED ON TELEVISION SAYING "I LOVE LIPSOM'S ICED TEA," WHILE
DRINKING SOMETHING THAT APPEARED TO BE TEA BUT IN FACT WAS NOT, THE
COMMERCIAL WOULD BE A DECEPTIVE PRACTICE. 

IN LIGHT OF THE COMMISSION'S ORDER AND ITS ORAL ARGUMENT, THE COURT
CONCLUDED THAT IT WAS THE COMMISSION'S INTENTION TO PROHIBIT ALL
SIMULATED PROPS IN TELEVISION COMMERCIALS.  THE COURT COULD NOT AGREE
WITH THIS POSITION SINCE IT BELIEVED THAT "WHERE THE ONLY UNTRUTH IS
THAT THE SUBSTANCE THE VIEWER SEES ON THE SCREEN IS ARTIFICIAL, AND THE
VISUAL APPEARANCE IS OTHERWISE A CORRECT AND ACCURATE REPRESENTATION OF
THE PRODUCT ITSELF, HE IS NOT INJURED."  (FN6)  BUT, IN SETTING ASIDE
THE COMMISSION'S ORDER, THE COURT GAVE LITTLE SPECIFIC GUIDANCE FOR THE
DRAFTING OF A NEW ONE.  IT MERELY CRITICIZED THE COMMISSION FOR HOLDING
THAT MOCK-UPS ARE "ILLEGAL PER SE," (FN7) AND INDICATED THAT THE
COMMISSION'S ORDER "MAY" HAVE BEEN TO BROAD IN OTHER RESPECTS AS WELL. 

FOLLOWING THE DECISION BY THE COURT OF APPEALS, THE COMMISSION
ENTERED A NEW "PROPOSED FINAL ORDER" ON FEBRUARY 18, 1963.  THIS ORDER
WAS ACCOMPANIED BY AN EXPLANATORY OPINION THAT ADMITTED ERROR IN THE
ORIGINAL DISPOSITION OF THE CASE AND EXPRESSED AN INTENTION TO
ELIMINATE THE ERRORS FOUND BY THE COURT OF APPEALS.  THE COMMISSION
EXPLAINED THAT ITS NEW ORDER WAS NOT DIRECTED TOWARD THE BROAD
PROHIBITION OF ALL UNDISCLOSED SIMULATED PROPS IN COMMERCIALS, BUT
MERELY TOWARD PROHIBITING RESPONDENTS FROM MISREPRESENTING TO THE
PUBLIC THAT IT WAS SEEING FOR ITSELF A TEST, EXPERIMENT OR
DEMONSTRATION WHICH PURPORTEDLY PROVED A PRODUCT CLAIM.  ACCORDING TO
THE COMMISSION, THE TELEVISION COMMERCIAL IN QUESTION DID NOT MERELY
TELL VIEWERS THAT THE EXPERIMENT HAD BEEN OR COULD BE PERFORMED, BUT
INSTEAD TOLD THEM THAT THEY WERE SEEING IT FOR THEMSELVES AND DID NOT
HAVE TO TAKE THE SELLER'S WORD FOR IT.  THIS, AND NOT THE MERE USE OF A
PROP, WAS THE MISREPRESENTATION FOUND TO BE A DECEPTIVE PRACTICE.  OVER
THE VIGOROUS OBJECTION OF RESPONDENTS, THE COMMISSION ISSUED ITS FINAL
ORDER ON MAY 7, 1963.  BOTH RESPONDENTS WERE ORDERED TO CEASE AND
DESIST FROM: 

"UNFAIRLY OR DECEPTIVELY ADVERTISING "ANY  ...  PRODUCT BY PRESENTING
A TEST, EXPERIMENT OR DEMONSTRATION THAT (1) IS REPRESENTED TO THE
PUBLIC AS ACTUAL PROOF OF A CLAIM MADE FOR THE PRODUCT WHICH IS
MATERIAL TO INDUCING ITS SALE, AND (2) IS NOT IN FACT A GENUINE TEST,
EXPERIMENT OR DEMONSTRATION BEING CONDUCTED AS REPRESENTED AND DOES NOT
IN FACT CONSTITUTE ACTUAL PROOF OF THE CLAIM, BECAUSE OF THE
UNDISCLOSED USE AND SUBSTITUTION OF A MOCK-UP OR PROP INSTEAD OF THE
PRODUCT, ARTICLE, OR SUBSTANCE REPRESENTED TO BE USED THEREIN."  (FN8) 

RESPONDENTS AGAIN APPEALED TO THE COURT OF APPEALS.  DESPITE THE
URGINGS OF RESPONDENTS THAT IT LIMIT ITS REVIEW TO A DETERMINATION
WHETHER THE COMMISSION'S ORDER WAS CONSISTENT WITH THE PREVIOUS
MANDATE, THE COURT RE-EXAMINED THE COMMISSION'S NEW ORDER ON THE
MERITS.  THE COURT RECOGNIZED THAT THE NEW ORDER NO LONGER PROHIBITED
THE USE OF ALL SIMULATED PROPS IN COMMERCIALS, BUT FOUND THAT IT WOULD
BE IMPOSSIBLE UNDER IT TO DISTINGUISH BETWEEN COMMERCIALS WHICH
DEPICTED A TEST, EXPERIMENT OR DEMONSTRATION, AND THOSE WHICH DID NOT. 
THE COURT HELD THAT SO LONG AS THERE IS AN ACCURATE PORTRAYAL OF A
PRODUCT'S ATTRIBUTES OR PERFORMANCE THERE IS NO DECEIT AND INSTRUCTED
THE COMMISSION, "AS WE THOUGHT WE HAD DIRECTED IT BEFORE," (FN9) TO
ENTER AN ORDER MERELY PROHIBITING RESPONDENTS FROM USING MOCK-UPS TO
DEMONSTRATE SOMETHING WHICH IN FACT COULD NOT BE ACCOMPLISHED. 

WE HOLD THAT THE COMMISSION'S ORDER OF MAY 7, 1963, WAS NOT IN
DISREGARD OF THE COURT OF APPEALS' FIRST MANDATE AND WAS A GOOD-FAITH
ATTEMPT TO INCORPORATE THE LEGAL PRINCIPLES CONTAINED THEREIN.  AN
EXAMINATION OF THE COMMISSION'S FIRST ORDER AND ACCOMPANYING OPINION
SHOWS AN OVERRIDING EMPHASIS ON MOCK-UPS AS SUCH AND A FAILURE TO
ARTICULATE WITH PRECISION THE ACTUAL DECEPTIVE PRACTICE FOUND.  AS A
RESULT, IT IS NOT SURPRISING THAT THE COURT CRITICIZED THE ORDER AS
"AMBIGUOUS," INTERPRETED IT AS PROHIBITING THE SUBSTITUTION OF A MOCK
UP FOR A PRODUCT IN ANY COMMERCIAL, AND FOUND THAT IT RESTED ON A
PREMISE THAT MOCK-UPS WERE "ILLEGAL PER SE."  IT IS TRUE THAT THE COURT
ALSO SAID THAT VIEWERS ARE INTERESTED IN WHAT THEY SEE AND NOT IN THE
MEANS BY WHICH THEY SEE IT, BUT THIS STATEMENT OCCURRED IMMEDIATELY
AFTER THE COURT DISCUSSED THE CONTENTION IN ORAL ARGUMENT THAT IT WOULD
BE A DECEPTIVE PRACTICE TO REPRESENT THAT A PERSON WAS DRINKING
"LIPSOM'S ICED TEA" WHEN IN FACT HE WAS NOT.  THE ONLY CLEAR DIRECTIVE
IN THE COURT'S MANDATE WAS FOR THE COMMISSION TO REMOVE THE
"FUNDAMENTAL ERROR WHICH SO PERMEATES THE ORDER" (FN10) - I.E., THE
ERROR THAT EVERY USE OF MOCK-UPS IS A DECEPTIVE PRACTICE.    WE FIND IT
INCONCEIVABLE THAT THE COMMISSION COULD HAVE SUCCESSFULLY SOUGHT
CERTIORARI FROM THIS JUDGMENT.  HAD IT DONE SO, IT WOULD HAVE BEEN
FORCED TO ARGUE EITHER THAT EVERY USE OF MOCK-UPS IN COMMERCIALS IS A
DECEPTIVE PRACTICE, AN APPARENTLY UNINTENDED THEORY, OR THAT THIS COURT
SHOULD REINSTATE THE COMMISSION'S DECISION ON A THEORY OF ITS OWN,
SOMETHING THE COURT SAID IT WOULD NOT DO IN SECURITIES & EXCHANGE
COMM'N V. CHENERY CORP., 332 U.S. 194, 196. 

SUPPORT IS GIVEN OUR CONCLUSION BY THE REFUSAL OF THE COURT OF
APPEALS TO DECLARE THAT THE COMMISSION'S SUBSEQUENT ORDER WAS
INCONSISTENT WITH THE PREVIOUS MANDATE.  HOWEVER, EVEN IF THE FIRST
OPINION OF THE COURT OF APPEALS COULD SOMEHOW BE CONSTRUED TO HOLD AS A
MATTER OF LAW THAT IT IS NEVER A DECEPTIVE PRACTICE TO USE UNDISCLOSED
PROPS IN A COMMERCIAL DESIGNED TO CONVINCE A VIEWER THAT HE IS SEEING
FOR HIMSELF PROOF OF A SELLER'S CLAIMS, WE FIND THAT THE COMMISSION
ACTED REASONABLY IN CONSTRUING THE MANDATE MORE NARROWLY.  THE
COMMISSION'S VAGUE FIRST ORDER HAD SPAWNED A CORRESPONDINGLY VAGUE
OPINION BY THE COURT OF APPEALS.  IF THE COURT MEANT ITS FIRST OPINION
TO SAY MORE THAN WE HAVE ATTRIBUTED TO IT, IT WAS NOT UNTIL THE SECOND
OPINION THAT THE COURT CLEARLY ARTICULATED ITS REASONING.  THEREFORE,
AT THE LEAST THE COURT'S SECOND OPINION RESOLVED A GENUINE AMBIGUITY IN
THE FIRST, AND THE TIME WITHIN WHICH CERTIORARI HAD TO BE REQUESTED
DATES FROM THE SECOND JUDGMENT.  SEE FEDERAL TRADE COMM'N V.
MINNEAPOLIS-HONEYWELL REGULATOR CO., 344 U.S. 206, 211. 

        II. 

IN REVIEWING THE SUBSTANTIVE ISSUES IN THE CASE, IT IS WELL TO
REMEMBER THE RESPECTIVE ROLES OF THE COMMISSION AND THE COURTS IN THE
ADMINISTRATION OF THE FEDERAL TRADE COMMISSION ACT.  WHEN THE
COMMISSION WAS CREATED BY CONGRESS IN 1914, IT WAS DIRECTED BY SEC. 5
TO PREVENT "UNFAIR METHODS OF COMPETITION IN COMMERCE."  (FN11)
CONGRESS AMENDED THE ACT IN 1938 TO EXTEND THE COMMISSION'S
JURISDICTION TO INCLUDE "UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN
COMMERCE" (FN12) - A SIGNIFICANT AMENDMENT SHOWING CONGRESS' CONCERN
FOR CONSUMERS AS WELL AS FOR COMPETITORS.  IT IS IMPORTANT TO NOTE THE
GENERALITY OF THESE STANDARDS OF ILLEGALITY; THE PROSCRIPTIONS IN SEC.
5 ARE FLEXIBLE, "TO BE DEFINED WITH PARTICULARITY BY THE MYRIAD OF
CASES FROM THE FIELD OF BUSINESS."  FEDERAL TRADE COMM'N V. MOTION
PICTURE ADVERTISING SERVICE CO., 344 U.S. 392, 394. 

THIS STATUTORY SCHEME NECESSARILY GIVES THE COMMISSION AN INFLUENTIAL
ROLE IN INTERPRETING SEC. 5 AND IN APPLYING IT TO THE FACTS OF
PARTICULAR CASES ARISING OUT OF UNPRECEDENTED SITUATIONS.  MOREOVER, AS
AN ADMINISTRATIVE AGENCY WHICH DEALS CONTINUALLY WITH CASES IN THE
AREA, THE COMMISSION IS OFTEN IN A BETTER POSITION THAN ARE COURTS TO
DETERMINE WHEN A PRACTICE IS "DECEPTIVE" WITHIN THE MEANING OF THE
ACT.  THIS COURT HAS FREQUENTLY STATED THAT THE COMMISSION'S JUDGMENT
IS TO BE GIVEN GREAT WEIGHT BY REVIEWING COURTS.  (FN13)  THIS
ADMONITION IS ESPECIALLY TRUE WITH RESPECT TO ALLEGEDLY DECEPTIVE
ADVERTISING SINCE THE FINDING OF A SEC. 5 VIOLATION IN THIS FIELD RESTS
SO HEAVILY ON INFERENCE AND PRAGMATIC JUDGMENT.  NEVERTHELESS, WHILE
INFORMED JUDICIAL DETERMINATION IS DEPENDENT UPON ENLIGHTENMENT GAINED
FROM ADMINISTRATIVE EXPERIENCE, IN THE LAST ANALYSIS THE WORDS
"DECEPTIVE PRACTICES" SET FORTH A LEGAL STANDARD AND THEY MUST GET
THEIR FINAL MEANING FROM JUDICIAL CONSTRUCTION.  CF. FEDERAL TRADE
COMM'N V. R.F. KEPPEL & BRO., INC., 291 U.S. 304, 314. 

WE ARE NOT CONCERNED IN THIS CASE WITH THE CLEAR MISREPRESENTATION IN
THE COMMERCIALS CONCERNING THE SPEED WITH WHICH RAPID SHAVE COULD SHAVE
SANDPAPER, SINCE THE COURT OF APPEALS UPHELD THE COMMISSION'S FINDING
ON THAT MATTER AND THE RESPONDENTS HAVE NOT CHALLENGED THE FINDING
HERE.  WE GRANTED CERTIORARI TO CONSIDER THE COMMISSION'S CONCLUSION
THAT EVEN IF AN ADVERTISER HAS HIMSELF CONDUCTED A TEST, EXPERIMENT OR
DEMONSTRATION WHICH HE HONESTLY BELIEVES WILL PROVE A CERTAIN PRODUCT
CLAIM, HE MAY NOT CONVEY TO TELEVISION VIEWERS THE FALSE IMPRESSION
THAT THEY ARE SEEING THE TEST, EXPERIMENT OR DEMONSTRATION FOR
THEMSELVES, WHEN THEY ARE NOT BECAUSE OF THE UNDISCLOSED USE OF MOCK
UPS. 

WE ACCEPT THE COMMISSION'S DETERMINATION THAT THE COMMERCIALS
INVOLVED IN THIS CASE CONTAINED THREE REPRESENTATIONS TO THE PUBLIC:
(1) THAT SANDPAPER COULD BE SHAVED BY RAPID SHAVE; (2) THAT AN
EXPERIMENT HAD BEEN CONDUCTED WHICH VERIFIED THIS CLAIM; AND (3) THAT
THE VIEWER WAS SEEING THIS EXPERIMENT FOR HIMSELF.  RESPONDENTS ADMIT
THAT THE FIRST TWO REPRESENTATIONS WERE MADE, BUT DENY THAT THE THIRD
WAS.  THE COMMISSION, HOWEVER, FOUND TO THE CONTRARY, AND, SINCE THIS
IS A MATTER OF FACT RESTING ON AN INFERENCE THAT COULD REASONABLY BE
DRAWN FROM THE COMMERCIALS THEMSELVES, THE COMMISSION'S FINDING SHOULD
BE SUSTAINED.  (FN14)  FOR THE PURPOSES OF OUR REVIEW, WE CAN ASSUME
THAT THE FIRST TWO REPRESENTATIONS WERE TRUE; THE FOCUS OF OUR
CONSIDERATION IS ON THE THIRD, WHICH WAS CLEARLY FALSE.  THE PARTIES
AGREE THAT SEC. 5 PROHIBITS THE INTENTIONAL MISREPRESENTATION OF ANY
FACT WHICH WOULD CONSTITUTE A MATERIAL FACTOR IN A PURCHASER'S DECISION
WHETHER TO BUY.  (FN15) THEY DIFFER, HOWEVER, IN THEIR CONCEPTION OF
WHAT "FACTS" CONSTITUTE A "MATERIAL FACTOR" IN A PURCHASER'S DECISION
TO BUY.  RESPONDENTS SUBMIT, IN EFFECT, THAT THE ONLY MATERIAL FACTS
ARE THOSE WHICH DEAL WITH THE SUBSTANTIVE QUALITIES OF A PRODUCT. 
(FN16)  THE COMMISSION, ON THE OTHER HAND, SUBMITS THAT THE
MISREPRESENTATION OF ANY FACT SO LONG AS IT MATERIALLY INDUCES A
PURCHASER'S DECISION TO BUY IS A DECEPTION PROHIBITED BY SEC. 5. 

THE COMMISSION'S INTERPRETATION OF WHAT IS A DECEPTIVE PRACTICE SEEMS
MORE IN LINE WITH THE DECIDED CASES THAN THAT OF RESPONDENTS.  THIS
COURT SAID IN FEDERAL TRADE COMM'N V. ALGOMA LUMBER CO., 291 U.S. 67,
78:  "THE PUBLIC IS ENTITLED TO GET WHAT IT CHOOSES, THOUGH THE COICE
MAY BE DICTATED BY CAPRICE OR BY FASHION OR PERHAPS BY IGNORANCE."  IT
HAS LONG BEEN CONSIDERED A DECEPTIVE PRACTICE TO STATE FALSELY THAT A
PRODUCT ORDINARILY SELLS FOR AN INFLATED PRICE BUT THAT IT IS BEING
OFFERED AT A SPECIAL REDUCED PRICE, EVEN IF THE OFFERED PRICE
REPRESENTS THE ACTUAL VALUE OF THE PRODUCT AND THE PURCHASER IS
RECEIVING HIS MONEY'S WORTH.  (FN17)  APPLYING RESPONDENTS' ARGUMENTS
TO THESE CASES, IT WOULD APPEAR THAT SO LONG AS BUYER PAID NO MORE THAN
THE PRODUCT WAS ACTUALLY WORTH AND THE PRODUCT CONTAINED THE QUALITIES
ADVERTISED, THE MISSTATEMENT OF AN INFLATED ORIGINAL PRICE WAS
IMMATERIAL. 

IT HAS ALSO BEEN HELD A VIOLATION OF SEC. 5 FOR A SELLER TO
MISREPRESENT TO THE PUBLIC THAT HE IS IN A CERTAIN LINE OF BUSINESS,
EVEN THOUGH THE MISSTATEMENT IN NO WAY AFFECTS THE QUALITIES OF THE
PRODUCT.  AS WAS SAID IN FEDERAL TRADE COMM'N V. ROYAL MILLING CO., 288
U.S. 212, 216: 

"IF CONSUMERS OR DEALERS PREFER TO PURCHASE A GIVEN ARTICLE BECAUSE
IT WAS MADE BY A PARTICULAR MANUFACTURER OR CLASS OF MANUFACTURERS,
THEY HAVE A RIGHT TO DO SO, AND THIS RIGHT CANNOT BE SATISFIED BY
IMPOSING UPON THEM AN EXACTLY SIMILAR ARTICLE, OR ONE EQUALLY AS GOOD,
BUT HAVING A DIFFERENT ORIGIN." 

THE COURTS OF APPEALS HAVE APPLIED THIS REASONING TO THE
MERCHANDISING OF REPROCESSED PRODUCTS THAT ARE AS GOOD AS NEW, WITHOUT
A DISCLOSURE THAT THEY ARE IN FACT REPROCESSED.  (FN18)  AND IT HAS
ALSO BEEN HELD THAT IT IS A DECEPTIVE PRACTICE TO MISAPPROPRIATE THE
TRADE NAME OF ANOTHER.  (FN19) 

RESPONDENTS CLAIM THAT ALL THESE CASES ARE IRRELEVANT TO OUR DECISION
BECAUSE THEY INVOLVE MISREPRESENTATIONS RELATED TO THE PRODUCT ITSELF
AND NOT MERELY TO THE MANNER IN WHICH AN ADVERTISING MESSAGE IS
COMMUNICATED.  THIS DISTINCTION MISSES THE MARK FOR TWO REASONS.  IN
THE FIRST PLACE, THE PRESENT CASE IS NOT CONCERNED WITH A MODE OF
COMMUNICATION, BUT WITH A MISREPRESENTATION THAT VIEWERS HAVE OBJECTIVE
PROOF OF A SELLER'S PRODUCT CLAIM OVER AND ABOVE THE SELLER'S WORD. 
SECONDLY, ALL OF THE ABOVE CASES, LIKE THE PRESENT CASE, DEAL WITH
METHODS DESIGNED TO GET A CONSUMER TO PURCHASE A PRODUCT, NOT WITH
WHETHER THE PRODUCT, WHEN PURCHASED, WILL PERFORM UP TO EXPECTATIONS. 
WE FIND AN ESPECIALLY STRONG SIMILARITY BETWEEN THE PRESENT CASE AND
THOSE CASES IN WHICH A SELLER INDUCES THE PUBLIC TO PURCHASE AN
ARGUABLY GOOD PRODUCT BY MISREPRESENTING HIS LINE OF BUSINESS, BY
CONCEALING THE FACT THAT THE PRODUCT IS REPROCESSED, OR BY
MISAPPROPRIATING ANOTHER'S TRADEMARK.  IN EACH THE SELLER HAS USED A
MISREPRESENTATION TO BREAK DOWN WHAT HE REGARDS TO BE AN ANNOYING OR
IRRATIONAL HABIT OF THE BUYING PUBLIC - THE PREFERENCE FOR PARTICULAR
MANUFACTURERS OR KNOWN BRANDS REGARDLESS OF A PRODUCT'S ACTUAL
QUALITIES, THE PREJUDICE AGAINST REPROCESSED GOODS, AND THE DESIRE FOR
VERIFICATION OF A PRODUCT CLAIM.  IN EACH CASE THE SELLER REASONS THAT
WHEN THE HABIT IS BROKEN THE BUYER WILL BE SATISFIED WITH THE
PERFORMANCE OF THE PRODUCT HE RECEIVES.  YET, A MISREPRESENTATION HAS
BEEN USED TO BREAK THE HABIT AND, AS WAS STATED IN ALGOMA LUMBER, A
MISREPRESENTATION FOR SUCH AN END IS NOT PERMITTED. 

WE NEED NOT LIMIT OURSELVES TO THE CASES ALREADY MENTIONED BECAUSE
THERE ARE OTHER SITUATIONS WHICH ALSO ILLUSTRATE THE CORRECTNESS OF THE
COMMISSION'S FINDING IN THE PRESENT CASE.  IT IS GENERALLY ACCEPTED
THAT IT IS A DECEPTIVE PRACTICE TO STATE FALSELY THAT A PRODUCT HAS
RECEIVED A TESTIMONIAL FROM A RESPECTED SOURCE.  (FN20)  IN ADDITION,
THE COMMISSION HAS CONSISTENTLY ACTED TO PREVENT SELLERS FROM FALSELY
STATING THAT THEIR PRODUCT CLAIMS HAVE BEEN "CERTIFIED."  (FN21)  WE
FIND THESE SITUATIONS TO BE INDISTINGUISHABLE FROM THE PRESENT CASE. 
WE CAN ASSUME THAT IN EACH THE UNDERLYING PRODUCT CLAIM IS TRUE AND IN
EACH THE SELLER ACTUALLY CONDUCTED AN EXPERIMENT SUFFICIENT TO PROVE TO
HIMSELF THE TRUTH OF THE CLAIM.  BUT IN EACH THE SELLER HAS TOLD THE
PUBLIC THAT IT COULD RELY ON SOMETHING OTHER THAN HIS WORD CONCERNING
BOTH THE TRUTH OF THE CLAIM AND THE VALIDITY OF HIS EXPERIMENT.  WE
FIND IT AN IMMATERIAL DIFFERENCE THAT IN ONE CASE THE VIEWER IS TOLD TO
RELY ON THE WORD OF A CELBRITY OR AUTHORITY HE RESPECTS, IN ANOTHER ON
THE WORD OF A TESTING AGENCY, AND IN THE PRESENT CASE ON HIS OWN
PERCEPTION OF AN UNDISCLOSED SIMULATION. 

RESPONDENTS AGAIN INSIST THAT THE PRESENT CASE IS NOT LIKE ANY OF THE
ABOVE, BUT IS MORE LIKE A CASE IN WHICH A CELEBRITY OR INDEPENDENT
TESTING AGENCY HAS IN FACT SUBMITTED A WRITTEN VERIFICATION OF AN
EXPERIMENT ACTUALLY OBSERVED, BUT, BECAUSE OF THE INABILITY OF THE
CAMERA TO TRANSMIT ACCURATELY AN IMPRESSION OF THE PAPER ON WHICH THE
TESTIMONIAL IS WRITTEN, THE SELLER REPRODUCES IT ON ANOTHER SUBSTANCE
SO THAT IT CAN BE SEEN BY THE VIEWING AUDIENCE.  THIS ANALOGY IGNORES
THE FINDING OF THE COMMISSION THAT IN THE PRESENT CASE THE SELLER
MISREPRESENTED TO THE PUBLIC THAT IT WAS BEING GIVEN OBJECTIVE PROOF OF
A PRODUCT CLAIM.  IN RESPONDENTS' HYPOTHETICAL THE OBJECTIVE PROOF OF
THE PRODUCT CLAIM THAT IS OFFERED, THE WORD OF THE CELEBRITY OR AGENCY
THAT THE EXPERIMENT WAS ACTUALLY CONDUCTED, DOES EXIST; WHILE IN THE
CASE BEFORE US THE OBJECTIVE PROOF OFFERED, THE VIEWER'S OWN PERCEPTION
OF AN ACTUAL EXPERIMENT, DOES NOT EXIST.  THUS, IN RESPONDENTS'
HYPOTHETICAL, UNLIKE THE PRESENT CASE, THE USE OF THE UNDISCLOSED MOCK
UP DOES NOT CONFLICT WITH THE SELLER'S CLAIM THAT THERE IS OBJECTIVE
PROOF. 

WE AGREE WITH THE COMMISSION, THEREFORE, THAT THE UNDISCLOSED USE OF
PLEXIGLASS IN THE PRESENT COMMERCIALS WAS A MATERIAL DECEPTIVE
PRACTICE, INDEPENDENT AND SEPARATE FROM THE OTHER MISREPRESENTATION
FOUND.  WE FIND UNPERSUASIVE RESPONDENTS' OTHER OBJECTIONS TO THIS
CONCLUSION.  RESPONDENTS CLAIM THAT IT WILL BE IMPRACTICAL TO INFORM
THE VIEWING PUBLIC THAT IT IS NOT SEEING AN ACTUAL TEST, EXPERIMENT OR
DEMONSTRATION, BUT WE THINK IT INCONCEIVABLE THAT THE INGENIOUS
ADVERTISING WORLD WILL BE UNABLE, IF IT SO DESIRES, TO CONFORM TO THE
COMMISSION'S INSISTENCE THAT THE PUBLIC BE NOT MISINFORMED.  IF,
HOWEVER, IT BECOMES IMPOSSIBLE OR IMPRACTICAL TO SHOW SIMULATED
DEMONSTRATIONS ON TELEVISION IN A TRUTHFUL MANNER, THIS INDICATES THAT
TELEVISION IS NOT A MEDIUM THAT LENDS ITSELF TO THIS TYPE OF
COMMERCIAL, NOT THAT THE COMMERCIAL MUST SURVIVE AT ALL COSTS. 
SIMILARLY UNPERSUASIVE IS RESPONDENTS' OBJECTION THAT THE COMMISSION'S
DECISION DISCRIMINATES AGAINST SELLERS WHOSE PRODUCT CLAIMS CANNOT BE
"VERIFIED" ON TELEVISION WITHOUT THE USE OF SIMULATIONS.  ALL METHODS
OF ADVERTISING DO NOT EQUALLY FAVOR EVERY SELLER.  IF THE INHERENT
LIMITATIONS OF A METHOD DO NOT PERMIT ITS USE IN THE WAY A SELLER
DESIRES, THE SELLER CANNOT BY MATERIAL MISREPRESENTATION COMPENSATE FOR
THOSE LIMITATIONS. 

RESPONDENTS ALSO CLAIM THAT THE COMMISSION REACHED OUT TO DECIDE A
QUESTION NOT PROPERLY BEFORE IT AND HAS PRESENTED THIS COURT WITH AN
ABSTRACT QUESTION.  THEY ARGUE THAT SINCE THE COMMERCIALS IN THE
PRESENT CASE MISREPRESENTED THE TIME ELEMENT INVOLVED IN SHAVING
SANDPAPER, THIS COURT SHOULD NOT CONSIDER THE ADDITIONAL
MISREPRESENTATION THAT THE PUBLIC HAD OBJECTIVE PROOF OF THE SELLER'S
CLAIM.  AS WE HAVE ALREADY SAID, THESE MISREPRESENTATIONS ARE SEPARATE
AND DISTINCT, AND WE FAIL TO SEE WHY RESPONDENTS SHOULD BE SHELTERED
FROM A CEASE-AND-DESIST ORDER WITH RESPECT TO ONE DECEPTIVE PRACTICE
MERELY BECAUSE THEY ALSO ENGAGED IN ANOTHER. 

RESPONDENTS FINALLY OBJECT TO WHAT THEY CONSIDER TO BE THE ABSENCE OF
AN ADQUATE RECORD TO SUSTAIN THE COMMISSION'S FINDING.  IT IS TRUE THAT
IN ITS INITIAL STAGES THE CASE WAS CONCERNED MORE WITH THE
MISREPRESENTATION ABOUT THE PRODUCT'S UNDERLYING QUALITIES THAN WITH
THE MISREPRESENTATION THAT OBJECTIVE PROOF WAS BEING GIVEN. 
NEVERTHELESS, BOTH MISREPRESENTATIONS WERE IN THE CASE FROM THE
BEGINNING, AND RESPONDENTS WERE NEVER PREJUDICIALLY MISLED INTO
BELIEVING THAT THE SECOND QUESTION WAS NOT BEING CONSIDERED.  NOR WAS
IT NECESSARY FOR THE COMMISSION TO CONDUCT A SURVEY OF THE VIEWING
PUBLIC BEFORE IT COULD DETERMINE THAT THE COMMERCIALS HAD A TENDENCY TO
MISLEAD, FOR WHEN THE COMMISSION FINDS DECEPTION IT IS ALSO AUTHORIZED,
WITHIN THE BOUNDS OF REASON, TO INFER THAT THE DECEPTION WILL
CONSTITUTE A MATERIAL FACTOR IN A PURCHASER'S DECISION TO BUY.  SEE
FEDERAL TRADE COMM'N V. RALADAM CO., 316 U.S. 149, 152.  WE FIND THE
RECORD IN THIS CASE SUFFICIENT TO SUPPORT THE COMMISSION'S FINDINGS. 
                                  III. 

WE TURN OUR ATTENTION NOW TO THE ORDER ISSUED BY THE COMMISSION.  IT
HAS BEEN REPEATEDLY HELD THAT THE COMMISSION HAS WIDE DISCRETION IN
DETERMINING THE TYPE OF ORDER THAT IS NECESSARY TO COPE WITH THE UNFAIR
PRACTICES FOUND, E.G., JACOB SIEGEL CO. V. FEDERAL TRADE COMM'N, 327
U.S. 608, 611, AND THAT CONGRESS HAS PLACED THE PRIMARY RESPONSIBILITY
FOR FASHIONING ORDERS UPON THE COMMISSION, FEDERAL TRADE COMM'N V.
NATIONAL LEAD CO., 352 U.S. 419, 429.  FOR THESE REASONS THE COURTS
SHOULD NOT "LIGHTLY MODIFY" THE COMMISSION'S ORDERS.  FEDERAL TRADE
COMM'N V. CEMENT INSTITUTE, 333 U.S. 683, 726.  HOWEVER, THIS COURT HAS
ALSO WARNED THAT AN ORDER'S PROHIBITIONS "SHOULD BE CLEAR AND PRECISE
IN ORDER THAT THEY MAY BE UNDERSTOOD BY THOSE AGAINST WHOM THEY ARE
DIRECTED," FEDERAL TRADE COMM'N V. CEMENT INSTITUTE, SUPRA, AT 726, AND
THAT "THE SEVERITY OF POSSIBLE PENALTIES PRESCRIBED ...  FOR VIOLATIONS
OF ORDERS WHICH HAVE BECOME FINAL UNDERLINES THE NECESSITY FOR
FASHIONING ORDERS WHICH ARE, AT THE OUTSET, SUFFICIENTLY CLEAR AND
PRECISE TO AVOID RAISING SERIOUS QUESTIONS AS TO THEIR MEANING AND
APPLICATION."  FEDERAL TRADE COMM'N V. HENRY BROCH & CO., 368 U.S. 360,
367-368. 

THE COURT OF APPEALS HAS CRITICIZED THE REFERENCE IN THE COMMISSION'S
ORDER TO "TEST, EXPERIMENT OR DEMONSTRATION" AS NOT CAPABLE OF
PRACTICAL INTERPRETATION.  IT COULD FIND NO DIFFERENCE BETWEEN THE
RAPID SHAVE COMMERCIAL AND A COMMERCIAL WHICH EXTOLLED THE GOODNESS OF
ICE CREAM WHILE GIVING VIEWERS A PICTURE OF A SCOOP OF MASHED POTATOES
APPEARING TO BE ICE CREAM.  WE DO NOT UNDERSTAND THIS DIFFICULTY.  IN
THE ICE CREAM CASE THE MASHED POTATO PROP IS NOT BEING USED FOR
ADDITIONAL PROOF OF THE PRODUCT CLAIM, WHILE THE PURPOSE OF THE RAPID
SHAVE COMMERCIAL IS TO GIVE THE VIEWER OBJECTIVE PROOF OF THE CLAIMS
MADE.  IF IN THE ICE CREAM HYPOTHETICAL THE FOCUS OF THE COMMERCIAL
BECOMES THE UNDISCLOSED POTATO PROP AND THE VIEWER IS INVITED,
EXPLICITLY OR BY IMPLICATION, TO SEE FOR HIMSELF THE TRUTH OF THE
CLAIMS ABOUT THE ICE CREAM'S RICH TEXTURE AND FULL COLOR, AND PERHPAS
COMPARE IT TO A "RIVAL PRODUCT," THEN THE COMMERCIAL HAS BECOME SIMILAR
TO THE ONE NOW BEFORE US. CLEARLY, HOWEVER, A COMMERCIAL WHICH DEPICTS
HAPPY ACTORS DELIGHTEDLY EATING ICE CREAM THAT IS IN FACT MASHED
POTATOES OR DRINKING A PRODUCT APPEARING TO BE COFFEE BUT WHICH IS IN
FACT SOME OTHER SUBSTANCE IS NOT COVERED BY THE PRESENT ORDER. 

THE CRUCIAL TERMS OF THE PRESENT ORDER - "TEST, EXPERIMENT OR
DEMONSTRATION  ...  REPRESENTED  ...  AS ACTUAL PROOF OF A CLAIM" - ARE
AS SPECIFIC AS THE CIRCUMSTANCES WILL PERMIT.  IF RESPONDENTS IN THEIR
SUBSEQUENT COMMERCIALS ATTEMPT TO COME AS CLOSE TO THE LINE OF
MISREPRESENTATION AS THE COMMISSION'S ORDER PERMITS, THEY MAY WITHOUT
SPECIFICALLY INTENDING TO DO SO CROSS INTO THE AREA PROSCRIBED BY THIS
ORDER.  HOWEVER, IT DOES NOT SEEM "UNFAIR TO REQUIRE THAT ONE WHO
DELIBERATELY GOES PERILOUSLY CLOSE TO AN AREA OF PROSCRIBED CONDUCT
SHALL TAKE THE RISK THAT HE MAY CROSS THE LINE."  BOYCE MOTOR LINES,
INC. V. UNITED STATES, 342 U.S. 337, 340.  IN COMMERCIALS WHERE THE
EMPHASIS IS ON THE SELLER'S WORD, AND NOT ON THE VIEWER'S OWN
PERCEPTION, THE RESPONDENTS NEED NOT FEAR THAT AN UNDISCLOSED USE OF
PROPS IS PROHIBITED BY THE PRESENT ORDER.  ON THE OTHER HAND, WHEN THE
COMMERCIAL NOT ONLY MAKES A CLAIM, BUT ALSO INVITES THE VIEWER TO RELY
ON HIS OWN PERCEPTION FOR DEMONSTRATIVE PROOF OF THE CLAIM, THE
RESPONDENTS WILL BE AWARE THAT THE USE OF UNDISCLOSED PROPS IN
STRATEGIC PLACES MIGHT BE A MATERIAL DECEPTION.  WE BELIEVE THAT
RESPONDENTS WILL HAVE NO DIFFICULTY APPLYING THE COMMISSION'S ORDER TO
THE VAST MAJORITY OF THEIR CONTEMPLATED FUTURE COMMERCIALS.  IF,
HOWEVER, A SITUATION ARISES IN WHICH RESPONDENTS ARE SINCERELY UNABLE
TO DETERMINE WHETHER A PROPOSED COURSE OF ACTION WOULD VIOLATE THE
PRESENT ORDER, THEY CAN, BY COMPLYING WITH THE COMMISSION'S RULES,
(FN22) OBLIGE THE COMMISSION TO GIVE THEM DEFINITIVE ADVICE AS TO
WHETHER THEIR PROPOSED ACTION, IF PURSUED, WOULD CONSTITUTE COMPLIANCE
WITH THE ORDER. 

FINALLY, WE FIND NO DEFECT IN THE PROVISION OF THE ORDER WHICH
PROHIBITS RESPONDENTS FROM ENGAGING IN SIMILAR PRACTICES WITH RESPECT
TO "ANY PRODUCT" THEY ADVERTISE.  THE PROPRIETY OF A BROAD ORDER
DEPENDS UPON THE SPECIFIC CIRCUMSTANCES OF THE CASE, BUT THE COURTS
WILL NOT INTERFERE EXCEPT WHERE THE REMEDY SELECTED HAS NO REASONABLE
RELATION TO THE UNLAWFUL PRACTICES FOUND TO EXIST.  (FN23)  IN THIS
CASE THE RESPONDENTS PRODUCED THREE DIFFERENT COMMERCIALS WHICH
EMPLOYED THE SAME DECEPTIVE PRACTICE.  THIS WE BELIEVE GAVE THE
COMMISSION A SUFFICIENT BASIS FOR BELIEVING THAT THE RESPONDENTS WOULD
BE INCLINED TO USE SIMILAR COMMERCIALS WITH RESPECT TO THE OTHER
PRODUCTS THEY ADVERTISE.  WE THINK IT REASONABLE FOR THE COMMISSION TO
FRAME ITS ORDER BROADLY ENOUGH TO PREVENT RESPONDENTS FROM ENGAGING IN
SIMILARLY ILLEGAL PRACTICES IN FUTURE ADVERTISEMENTS.  AS WAS SAID IN
FEDERAL TRADE COMM'N V. RUBEROID CO., 343 U.S. 470, 473:  "THE
COMMISSION IS NOT LIMITED TO PROHIBITING THE ILLEGAL PRACTICE IN THE
PRECISE FORM IN WHICH IT IS FOUND TO HAVE EXISTED IN THE PAST."  HAVING
BEEN CAUGHT VIOLATING THE ACT, RESPONDENTS "MUST EXPECT SOME FENCING
IN."  FEDERAL TRADE COMM'N V. NATIONAL LEAD CO., 352 U.S. 419, 431. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE
REMANDED FOR THE ENTRY OF A JUDGMENT ENFORCING THE COMMISSION'S ORDER. 
REVERSED AND REMANDED. 

FN1  38 STAT. 717, AS AMENDED, 52 STAT. 111, 15 U.S.C. SEC. 45(A)(1)
(1958 ED.): 

"UNFAIR METHODS OF COMPETITION IN COMMERCE, AND UNFAIR OR DECEPTIVE
ACTS OR PRACTICES IN COMMERCE, ARE DECLARED UNLAWFUL." 

FN2  52 STAT. 114, AS AMENDED, 15 U.S.C. SEC. 45(I) (1958 ED.): 

"IF THE ORDER OF THE COMMISSION IS MODIFIED OR SET ASIDE BY THE COURT
OF APPEALS, AND IF (1) THE TIME ALLOWED FOR FILING A PETITION FOR
CERTIORARI HAS EXPIRED AND NO SUCH PETITION HAS BEEN DULY FILED, OR (2)
THE PETITION FOR CERTIORARI HAS BEEN DENIED, OR (3) THE DECISION OF THE
COURT HAS BEEN AFFIRMED BY THE SUPREME COURT, THEN THE ORDER OF THE
COMMISSION RENDERED IN ACCORDANCE WITH THE MANDATE OF THE COURT OF
APPEALS SHALL BECOME FINAL ON THE EXPIRATION OF THIRTY DAYS FROM THE
TIME SUCH ORDER OF THE COMMISSION WAS RENDERED, UNLESS WITHIN SUCH
THIRTY DAYS EITHER PARTY HAS INSTITUTED PROCEEDINGS TO HAVE SUCH ORDER
CORRECTED SO THAT IT WILL ACCORD WITH THE MANDATE, IN WHICH EVENT THE
ORDER OF THE COMMISSION SHALL BECOME FINAL WHEN SO CORRECTED." 

FN3  SECURITIES & EXCHANGE COMM'N V. CHENERY CORP., 332 U.S. 194,
200; FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309
U.S. 134, 145. 

FN4  SEE LABOR BOARD V. DONNELLY GARMENT CO., 330 U.S. 219, 227;
FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., SUPRA,
NOTE 3, AT 141. 

FN5  59 F.T.C. 1452, 1477-1478. 

FN6  310 F.2D 89, 94. 

FN7  IBID. 

FN8  COLGATE-PALMOLIVE CO., NO 7736, FTC, MAY 7, 1963.  AN ADDITIONAL
CLAUSE WAS ADDED TO THE ORDER FOR THE BENEFIT OF RESPONDENT BATES IN
RECOGNITION OF THE DIFFERENT POSITIONS OF CLIENTS AND ADVERTISING
AGENCIES, WHICH OFTEN DO NOT HAVE ALL THE INFORMATION ABOUT A PRODUCT
THAT THE CLIENT HAS.  THE CLAUSE READS:  "PROVIDED, HOWEVER, THAT IT
SHALL BE A DEFENSE HEREUNDER THAT RESPONDENT NEITHER KNEW NOR HAD
REASON TO KNOW THAT THE PRODUCT, ARTICLE OR SUBSTANCE USED IN THE TEST,
EXPERIMENT OR DEMONSTRATION WAS A MOCK-UP OR PROP." 

FN9  326 F.2D 517, 523. 

FN10  310 F.2D 89, 94. 

FN11  38 STAT. 719 (1914), AS AMENDED, 15 U.S.C. SEC. 45(A)(1) (1958
ED.). 

FN12  52 STAT. 111 (1938), 15 U.S.C. SEC. 45(A)(1) (1958 ED.). 

FN13  SEE, E.G., FEDERAL TRADE COMM'N V. MOTION PICTURE ADVERTISING
SERVICE CO., 344 U.S. 392, 396; FEDERAL TRADE COMM'N V. RALADAM CO.,
316 U.S. 149, 152. 

FN14  SEE UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 488;
FEDERAL TRADE COMM'N V. PACIFIC STATES PAPER TRADE ASSN., 273 U.S. 52,
63. 

FN15  BRIEF FOR PETITIONER, P. 13; BRIEF FOR RESPONDENT COLGATE, P.
22; BRIEF FOR RESPONDENT BATES, P. 14. 

FN16  BRIEF FOR RESPONDENT COLGATE, P. 16:  "WHAT THE BUYER IS
INTERESTED IN IS WHETHER THE ACTUAL PRODUCT HE BUYS WILL LOOK AND
PERFORM THE WAY IT APPEARED ON HIS TELEVISION SET."  ID., AT 17:  "A
BUYER'S REAL CONCERN IS WITH THE TRUTH OF THE SUBSTANTIVE CLAIMS OR
PROMISES MADE TO HIM, NOT WITH THE MEANS USED TO MAKE THEM."  ID., AT
20: "THE COMMISSION'S ERROR WAS TO CONFUSE THE SUBSTANTIVE CLAIM MADE
FOR A PRODUCT WITH THE MEANS BY WHICH SUCH CLAIM WAS CONVEYED." 

BRIEF FOR RESPONDENT BATES, PP. 2-3:  "IF THE VIEWER OR READER OF THE
ADVERTISEMENT BUYS THE PRODUCT, AND IT WILL DO EXACTLY WHAT THE
PORTRAYAL IN THE ADVERTISEMENT ASSERTS IT WILL DO, CAN THERE BE ANY
UNLAWFUL MISREPRESENTATION?"  ID., AT 13-14:  "WHAT INDUCES THE BUYER
TO PURCHASE IS THE CLAIM THAT THE PRODUCT WILL PERFORM AS REPRESENTED
IN THE PORTRAYED TEST.  THAT IS THE MATERIAL CLAIM."  ID., AT 25:  "IT
IS NOT A REPRESENTATION IN ANY WAY RELATING TO THE PRODUCT OR TO ITS
PURCHASE, SO THAT EVEN IF THE STRAINED SUGGESTION THAT THERE IS SUCH AN
IMPLIED REPRESENTATION WERE REALISTIC, THE REPRESENTATION PLAINLY WOULD
BE IMMATERIAL." 

FN17  FEDERAL TRADE COMM'N V. STANDARD EDUCATION SOCIETY, 302 U.S.
112, 115-117; KALWAJTYS V. FEDERAL TRADE COMM'N, 237 F.2D 654, 656
(C.A. 7TH CIR. 1956), CERT. DENIED, 352 U.S. 1025. 

FN18  KERRAN V. FEDERAL TRADE COMM'N, 265 F.2D 246 (C.A. 10TH CIR.
1959), CERT. DENIED SUB NOM. DOUBLE EAGLE REF. CO. V. FEDERAL TRADE
COMM'N, 361 U.S. 818; MOHAWK REF. CORP. V. FEDERAL TRADE COMM'N, 263
F.2D 818 (C.A. 3D CIR. 1959), CERT. DENIED, 361 U.S. 814. 

FN19  E.G., NIRESK INDUSTRIES, INC. V. FEDERAL TRADE COMM'N, 278 F.2D
337 (C.A. 7TH CIR. 1960), CERT. DENIED, 364 U.S. 883. 

FN20  E.G., NIRESK INDUSTRIES, INC. V. FEDERAL TRADE COMM'N, SUPRA,
NOTE 19; HOWE V. FEDERAL TRADE COMM'N, 148 F.2D 561 (C.A. 9TH CIR.
1945), CERT. DENIED, 326 U.S. 741. 

FN21  SEE, E.G., STIPULATION 9083, 55 F.T.C. 2101 (1958); STIPULATION
8966, 54 F.T.C.  1953 (1957). 

FN22  THE COMMISSION'S RULES, 16 CFR SEC. 3.26 (1964 SUPP.),
PROVIDE: 

"(B)  ANY RESPONDENT SUBJECT TO A COMMISSION ORDER MAY REQUEST ADVICE
FROM THE COMMISSION AS TO WHETHER A PROPOSED COURSE OF ACTION, IF
PURSUED BY IT, WILL CONSTITUTE COMPLIANCE WITH SUCH ORDER.  THE REQUEST
FOR ADVICE SHOULD BE SUBMITTED IN WRITING TO THE SECRETARY OF THE
COMMISSION AND SHOULD INCLUDE FULL AND COMPLETE INFORMATION REGARDING
THE PROPOSED COURSE OF ACTION.  ON THE BASIS OF THE FACTS SUBMITTED, AS
WELL AS OTHER INFORMATION AVAILABLE TO THE COMMISSION, THE COMMISSION
WILL INFORM THE RESPONDENT WHETHER OR NOT THE PROPOSED COURSE OF
ACTION, IF PURSUED, WOULD CONSTITUTE COMPLIANCE WITH ITS ORDER. 

"(C)  THE COMMISSION MAY AT ANY TIME RECONSIDER ITS APPROVAL OF ANY
REPORT OF COMPLIANCE OR ANY ADVICE GIVEN UNDER THIS SECTION AND, WHERE
THE PUBLIC INTEREST REQUIRES, RESCIND OR REVOKE ITS PRIOR APPROVAL OR
ADVICE.  IN SUCH EVENT THE RESPONDENT WILL BE GIVEN NOTICE OF THE
COMMISSION'S INTENT TO REVOKE OR RESCIND AND WILL BE GIVEN AN
OPPORTUNITY TO SUBMIT ITS VIEWS TO THE COMMISSION.  THE COMMISSION WILL
NOT PROCEED AGAINST A RESPONDENT FOR VIOLATION OF AN ORDER WITH RESPECT
TO ANY ACTION WHICH WAS TAKEN IN GOOD FAITH RELIANCE UPON THE
COMMISSION'S APPROVAL OR ADVICE UNDER THIS SECTION, WHERE ALL RELEVANT
FACTS WERE FULLY, COMPLETELY AND ACCURATELY PRESENTED TO THE COMMISSION
AND WHERE SUCH ACTION WAS PROMPTLY DISCONTINUED UPON NOTIFICATION OF
RESCISSION OR REVOCATION OF THE COMMISSION'S APPROVAL." 

FN23  FEDERAL TRADE COMM'N V. NATIONAL LEAD CO., 352 U.S. 419, 429;
FEDERAL TRADE COMM'N V. RUBEROID CO., 343 U.S. 470, 473; JACOB SIEGEL
CO. V. FEDERAL TRADE COMM'N, 327 U.S. 608, 612. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING IN
PART. 

UNDER THE LIMITED GRANT OF CERTIORARI IN THIS CASE, THE COURT MUST
ASSUME THAT THE ADVERTISER CAN PERFORM THE EXPERIMENT IN QUESTION AND
THAT THE DEMONSTRATION IS AS SIMPLE TO EXECUTE AS IT APPEARS ON
TELEVISION.  THE ONLY QUESTION HERE IS WHAT TECHNIQUES THE ADVERTISER
MAY USE TO CONVEY ESSENTIAL TRUTH TO THE TELEVISION VIEWER.  IF THE
CLAIM IS TRUE AND VALID, THEN THE TECHNIQUE FOR PROJECTING THAT CLAIM,
WITHIN BROAD BOUNDARIES, FALLS PURELY WITHIN THE ADVERTISER'S ART. THE
WARRANT TO THE FEDERAL TRADE COMMISSION IS TO POLICE THE VERITY OF THE
CLAIM ITSELF. 

I DO NOT AGREE THAT THE USE OF "MOCK-UPS" BY THE TELEVISION
ADVERTISER IS OF ITSELF A DECEPTIVE TRADE PRACTICE.  FURTHER, WHILE
THERE WAS AN INDEPENDENT DECEPTIVE ELEMENT IN THIS COMMERCIAL, I DO NOT
THINK THIS RECORD JUSTIFIES THE BROAD REMEDIAL ORDER ISSUED BY THE
COMMISSION.  I WOULD REMAND THE CASE TO THE COMMISSION FOR FURTHER
PROCEEDINGS. 

   I.

                               "MOCK-UPS" AS SUCH. 

THE FAULTY PROP IN THE COURT'S REASONING IS THAT IT FOCUSES ENTIRELY
ON WHAT IS TAKING PLACE IN THE STUDIO RATHER THAN ON WHAT THE VIEWER IS
SEEING ON HIS SCREEN.  THAT WHICH THE VIEWER SEES WITH HIS OWN EYES IS
NOT, HOWEVER, WHAT IS TAKING PLACE IN THE STUDIO, BUT AN ELECTRONIC
IMAGE.  IF THE IMAGE HE SEES ON THE SCREEN IS AN ACCURATE REPRODUCTION
OF WHAT HE WOULD SEE WITH THE NAKED EYES WERE THE EXPERIMENT PERFORMED
BEFORE HIM WITH SANDPAPER IN HIS HOME OR IN THE STUDIO, THERE CAN
HARDLY BE A MISREPRESENTATION IN ANY LEGALLY SIGNIFICANT SENSE.  WHILE
THE COMMISSION UNDOUBTEDLY POSSESSES BROAD AUTHORITY TO GIVE CONTENT TO
THE PROSCRIPTIONS OF THE ACT, ITS DISCRETION, AS THE COURT RECOGNIZES,
IS NOT UNBRIDLED, AND "IN THE LAST ANALYSIS THE WORDS 'DECEPTIVE
PRACTICES' SET FORTH A LEGAL STANDARD AND THEY MUST GET THEIR FINAL
MEANING FROM JUDICIAL CONSTRUCTION" (ANTE, P. 385).  IN THIS CASE,
ASSUMING THAT RAPID SHAVE COULD SOFTEN SANDPAPER AS QUICKLY AS IT DOES
SAND-COVERED PLEXIGLASS, A VIEWER WHO WANTS TO ENTERTAIN HIS FRIENDS BY
DUPLICATING THE ACTUAL EXPERIMENT COULD DO SO BY BUYING A CAN OF RAPID
SHAVE AND SOME SANDPAPER.  IF HE WISHED TO SHAVE HIMSELF, AND HIS BEARD
WERE REALLY AS TOUGH AS SANDPAPER, HE COULD PERFORM THIS PART OF HIS
MORNING ABLUTIONS WITH RAPID SHAVE IN THE SAME WAY AS HE SAW THE
PLEXIGLASS SHAVED ON TELEVISION. 

I DO NOT SEE HOW SUCH A COMMERCIAL CAN BE SAID TO BE "DECEPTIVE" IN
ANY LEGALLY ACCEPTABLE USE OF THAT TERM.  THE COURT ATTEMPTS TO
DISTINGUISH THE CASE WHERE A "CELEBRITY" HAS WRITTEN A TESTIMONIAL
ENDORSING SOME PRODUCT, BUT THE ORIGINAL TESTIMONIAL CANNOT BE SEEN
OVER TELEVISION AND A COPY IS SHOWN OVER THE AIR BY THE MANUFACTURER. 
THE COURT STATES OF THIS "HYPOTHETICAL":  "IN RESPONDENTS' HYPOTHETICAL
THE OBJECTIVE PROOF OF THE PRODUCT CLAIM THAT IS OFFERED, THE WORD OF
THE CELEBRITY OR AGENCY THAT THE EXPERIMENT WAS ACTUALLY CONDUCTED,
DOES EXIST; WHILE IN THE CASE BEFORE US THE OBJECTIVE PROOF OFFERED,
THE VIEWER'S OWN PERCEPTION OF AN ACTUAL EXPERIMENT, DOES NOT EXIST." 
ANTE, AT 390.  BUT IN BOTH CASES THE VIEWER IS TOLD TO "SEE FOR
HIMSELF," IN THE ONE CASE THAT THE CELEBRITY HAS ENDORSED THE PRODUCT;
IN THE OTHER, THAT THE PRODUCT CAN SHAVE SANDPAPER; IN NEITHER CASE IS
THE VIEWER ACTUALLY SEEING THE PROOF; AND IN BOTH CASES THE OBJECTIVE
PROOF DOES EXIST, BE IT THE ORIGINAL TESTIMONIAL OR THE SANDPAPER TEST
ACTUALLY CONDUCTED BY THE MANUFACTURER.  IN NEITHER CASE, HOWEVER, IS
THERE A MATERIAL MISREPRESENTATION, BECAUSE WHAT THE VIEWER SEES IS AN
ACCURATE IMAGE OF THE OBJECTIVE PROOF. 

NOR CAN I READILY UNDERSTAND HOW THE ACCURATE PORTRAYAL OF AN
EXPERIMENT BY MEANS OF A MOCK-UP CAN BE CONSIDERED MORE DECEPTIVE THAN
THE USE OF MASHED POTATOES TO CONVEY THE GLAMOROUS QUALITIES OF A
PARTICULAR ICE CREAM (ANTE, PP. 392-393); INDEED, TO A POTATO-LOVER
"THE SMILE ON THE FACE OF THE TIGER" MIGHT COME MORE NATURALLY THAN IF
HE WERE ACTUALLY BEING SERVED ICE CREAM. 

IT IS COMMONLY KNOWN THAT TELEVISION PRESENTS CERTAIN DISTORTIONS IN
TRANSMISSION FOR WHICH THE BROADCASTING INDUSTRY MUST COMPENSATE. 
THUS, A WHITE TOWEL WILL LOOK A DINGY GRAY OVER TELEVISION, BUT A BLUE
TOWEL WILL LOOK A SPARKLING WHITE.  ON THE COURT'S ANALYSIS, AN
ADVERTISER MUST ACHIEVE ACCURACY IN THE STUDIO EVEN THOUGH IT RESULTS
IN AN INACCURATE IMAGE BEING PROJECTED ON THE HOME SCREEN.  THIS LED
THE COURT OF APPEALS TO QUESTION WHETHER IT WOULD BE PROPER FOR AN
ADVERTISER TO SHOW A PRODUCT ON TELEVISION THAT SOMEHOW, BECAUSE OF THE
MEDIUM, LOOKS BETTER ON THE SCREEN THAN IT DOES IN REAL LIFE.  310 F.2D
89, 94; 326 F.2D 517, 523, N. 16. 

A PERHAPS MORE COMMONPLACE EXAMPLE SUGGESTS ITSELF:  WOULD IT BE
PROPER FOR RESPONDENT COLGATE, IN ADVERTISING A LAUNDRY DETERGENT, TO
"DEMONSTRATE" THE EFFECTIVENESS OF A MAJOR COMPETITOR'S DETERGENT IN
WASHING WHITE SHEETS; AND THEN "BEFORE THE VIEWER'S EYES," TO WASH A
WHITE (NOT A BLUE) SHEET WITH THE COMPETITOR'S DETERGENT?  THE STUDIO
TEST WOULD ACCURATELY SHOW THE QUALITY OF THE PRODUCT, BUT THE IMAGE ON
THE SCREEN WOULD LOOK AS THOUGH THE SHEET HAD BEEN WASHED WITH AN
INEFFECTIVE DETERGENT.  ALL THAT HAS HAPPENED HERE IS THE CONVERSE:  A
DEMONSTRATION HAS BEEN ALTERED IN THE STUDIO TO COMPENSATE FOR THE
DISTORTIONS OF THE TELEVISION MEDIUM, BUT IN THIS INSTANCE IN ORDER TO
PRESENT AN ACCURATE PICTURE TO THE TELEVISION VIEWER. 

IN SHORT, IT SEEMS TO ME THAT THE PROPER LEGAL TEST IN CASES OF THIS
KIND CONCERNS NOT WHAT GOES ON IN THE BROADCASTING STUDIO, BUT WHETHER
WHAT IS SHOWN ON THE TELEVISION SCREEN IS AN ACCURATE REPRESENTATION OF
THE ADVERTISED PRODUCT AND OF THE CLAIMS MADE FOR IT.

                           II.

 THE COMMISSION'S REMEDY. 

THE COMMISSION ORDERED BOTH RESPONDENTS TO CEASE AND DESIST FROM
USING MOCK-UPS IN ANY "TEST, EXPERIMENT OR DEMONSTRATION" - IN THE CASE
OF RESPONDENT BATES, WHETHER OR NOT RELATING TO COLGATE PRODUCTS - AS A
RESULT OF ITS FINDING THAT THE USE OF A PLEXIGLASS MOCK-UP IN THIS
INSTANCE CONSTITUTED A SEPARATE MISREPRESENTATION.  IF THAT WERE THE
ONLY MISREPRESENTATION FOUND BY THE COMMISSION, I WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS.  THE COMMISSION, HOWEVER, FOUND
ANOTHER MISREPRESENTATION, NOT DISPUTED HERE, NAMELY, THAT RAPID SHAVE
WOULD SHAVE SANDPAPER AS QUICKLY AS PLEXIGLASS, AND ON THIS RECORD I
CANNOT SAY THAT SUCH FINDING MIGHT NOT SUPPORT THE COMMISSION'S BROAD
ORDER. 

IN SO CONCLUDING, SOME FURTHER OBSERVATIONS ARE CALLED FOR.  THE
COURT BRINGS TO THE SUPPORT OF THE COMMISSION'S BROAD ORDER THE
SUGGESTION THAT IT MIGHT BE DIFFICULT FOR THE COMMISSION TO POLICE THE
RELIABILITY OF SIMULATED DEMONSTRATIONS, AND, FURTHER, THAT THE
COMMISSION MIGHT HAVE CAUSE FOR CONCERN AS TO ADVERTISERS WHICH HAVE
DEMONSTRATED A PROPENSITY FOR MISREPRESENTATION.  THE POLICING FACTOR
CERTAINLY SHOULD NOT PERMIT THE COMMISSION TO SWEEP WITH THE BROAD
BRUSH IT HAS USED HERE, SINCE THE SAME RISK OF INACCURATE REPRODUCTION
INHERES IN ALL COMMERCIALS, NOT ONLY THOSE INVOLVING TESTS OR
EXPERIMENTS.  ALTHOUGH THE COMMISSION DOUBTLESS HAS WIDE DISCRETION IN
FASHIONING REMEDIES (ANTE, P. 395), I DO NOT BELIEVE THAT AN ORDER
BANNING USE OF ALL MOCK-UPS CAN BE JUSTIFIED MERELY ON THE SCORE OF
"POLICING." 

THERE IS SOME INDICATION, HOWEVER, THAT THE COMMISSION HAS HAD
TROUBLES WITH BOTH RESPONDENTS IN THE PAST (SEE 59 F.T.C. 1452, 1473
AND N. 30).  IF THE COMMISSION SHOULD FIND THAT A PATTERN OF
MISREPRESENTATIONS BY RESPONDENTS CREATES A SUBSTANTIAL RISK THAT THEY
WILL NOT ACCURATELY PORTRAY EXPERIMENTS IF PERMITTED TO CONTINUE USING
MOCK-UPS, THE COMMISSION'S PRESENT ORDER MIGHT WELL BE JUSTIFIED.  I
THINK THE COMMISSION SHOULD HAVE AN OPPORTUNITY TO MAKE SUCH FINDINGS,
WHICH WERE UNNECESSARY UNDER WHAT I BELIEVE WAS ITS MISTAKEN VIEW OF
THE CASE. 

TO THAT END, I WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND THE CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS IN LIGHT OF
WHAT HAS BEEN SAID IN THIS OPINION. 
..END :












POINTER V. TEXAS 380 U.S. 400 


NO. 577.  ARGUED MARCH 15, 1965.  - DECIDED APRIL 5, 1965.  - 375 S.W.2D
293, REVERSED AND REMANDED. 


PETITIONER WAS ARRESTED AND BROUGHT BEFORE A STATE JUDGE FOR
PRELIMINARY HEARING ON A ROBBERY CHARGE.  THE COMPLAINING WITNESS
TESTIFIED BUT PETITIONER, WHO HAD NO COUNSEL, DID NOT CROSS-EXAMINE. 
PETITIONER WAS LATER INDICTED AND TRIED.  THE WITNESS HAD MOVED TO
ANOTHER STATE AND THE TRANSCRIPT OF HIS TESTIMONY AT THE HEARING WAS
INTRODUCED OVER PETITIONER'S OBJECTIONS THAT HE WAS DENIED THE RIGHT OF
CONFRONTATION.  HE WAS CONVICTED AND THE HIGHEST STATE COURT AFFIRMED. 
HELD: 

1.  THE RIGHT GRANTED TO AN ACCUSED BY THE SIXTH AMENDMENT TO
CONFRONT THE WITNESSES AGAINST HIM, WHICH INCLUDES THE RIGHT OF CROSS
EXAMINATION, IS A FUNDAMENTAL RIGHT, ESSENTIAL TO A FAIR TRIAL AND IS
MADE OBLIGATORY ON THE STATES BY THE FOURTEENTH AMENDMENT.  PP. 403
406. 

2.  THE INTRODUCTION OF THE TRANSCRIPT IN A FEDERAL CRIMINAL CASE
WOULD HAVE BEEN A CLEAR DENIAL OF THE RIGHT OF CONFRONTATION SINCE THE
STATEMENT WAS MADE WITHOUT AN ADEQUATE OPPORTUNITY FOR CROSS
EXAMINATION, AND THE RIGHT MUST BE DETERMINED BY THE SAME STANDARDS IN
A STATE PROCEEDING.  PP. 406-408. 

POINTER V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE SIXTH AMENDMENT PROVIDES IN PART THAT: 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT  ...
TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM  ...  AND TO HAVE THE
ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

TWO YEARS AGO IN GIDEON V. WAINWRIGHT, 372 U.S. 335, WE HELD THAT THE
FOURTEENTH AMENDMENT MAKES THE SIXTH AMENDMENT'S GUARANTEE OF RIGHT TO
COUNSEL OBLIGATORY UPON THE STATES.  THE QUESTION WE FIND NECESSARY TO
DECIDE IN THIS CASE IS WHETHER THE AMENDMENT'S GUARANTEE OF A
DEFENDANT'S RIGHT "TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM,"
WHICH HAS BEEN HELD TO INCLUDE THE RIGHT TO CROSS-EXAMINE THOSE
WITNESSES, IS ALSO MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT. 

THE PETITIONER POINTER AND ONE DILLARD WERE ARRESTED IN TEXAS AND
TAKEN BEFORE A STATE JUDGE FOR A PRELIMINARY HEARING (IN TEXAS CALLED
THE "EXAMINING TRIAL") ON A CHARGE OF HAVING ROBBED KENNETH W. PHILLIPS
OF $375 "BY ASSAULT, OR VIOLENCE, OR BY PUTTING IN FEAR OF LIFE OR
BODILY INJURY," IN VIOLATION OF TEXAS PENAL CODE ART. 1408.  AT THIS
HEARING AN ASSISTANT DISTRICT ATTORNEY CONDUCTED THE PROSECUTION AND
EXAMINED WITNESSES, BUT NEITHER OF THE DEFENDANTS, BOTH OF WHOM WERE
LAYMEN, HAD A LAWYER.  PHILLIPS AS CHIEF WITNESS FOR THE STATE GAVE HIS
VERSION OF THE ALLEGED ROBBERY IN DETAIL, IDENTIFYING PETITIONER AS THE
MAN WHO HAD ROBBED HIM AT GUNPOINT.  APPARENTLY DILLARD TRIED TO CROSS
EXAMINE PHILLIPS BUT POINTER DID NOT, ALTHOUGH POINTER WAS SAID TO HAVE
TRIED TO CROSS-EXAMINE SOME OTHER WITNESSES AT THE HEARING.  PETITIONER
WAS SUBSEQUENTLY INDICTED ON A CHARGE OF HAVING COMMITTED THE ROBBERY. 
SOME TIME BEFORE THE TRIAL WAS HELD, PHILLIPS MOVED TO CALIFORNIA. 
AFTER PUTTING IN EVIDENCE TO SHOW THAT PHILLIPS HAD MOVED AND DID NOT
INTEND TO RETURN TO TEXAS, THE STATE AT THE TRIAL OFFERED THE
TRANSCRIPT OF PHILLIPS' TESTIMONY GIVEN AT THE PRELIMINARY HEARING AS
EVIDENCE AGAINST PETITIONER.  PETITIONER'S COUNSEL IMMEDIATELY OBJECTED
TO INTRODUCTION OF THE TRANSCRIPT, STATING, "YOUR HONOR, WE WILL OBJECT
TO THAT, AS IT IS A DENIAL OF THE CONFRONTMENT OF THE WITNESSES AGAINST
THE DEFENDANT."  SIMILAR OBJECTIONS WERE REPEATEDLY MADE BY
PETITIONER'S COUNSEL BUT WERE OVERRULED BY THE TRIAL JUDGE, APPARENTLY
IN PART BECAUSE, AS THE JUDGE VIEWED IT, PETITIONER HAD BEEN PRESENT AT
THE PRELIMINARY HEARING AND THEREFORE HAD BEEN "ACCORDED THE
OPPORTUNITY OF CROSS EXAMINING THE WITNESSES THERE AGAINST HIM."  THE
TEXAS COURT OF CRIMINAL APPEALS, THE HIGHEST STATE COURT TO WHICH THE
CASE COULD BE TAKEN, AFFIRMED PETITIONER'S CONVICTION, REJECTING HIS
CONTENTION THAT USE OF THE TRANSCRIPT TO CONVICT HIM DENIED HIM RIGHTS
GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS.  375 S.W.2D 293.  WE
GRANTED CERTIORARI TO CONSIDER THE IMPORTANT CONSTITUTIONAL QUESTION
THE CASE INVOLVES.  379 U.S. 815. 

IN THIS COURT WE DO NOT FIND IT NECESSARY TO DECIDE ONE ASPECT OF THE
QUESTION PETITIONER RAISES, THAT IS WHETHER FAILURE TO APPOINT COUNSEL
TO REPRESENT HIM AT THE PRELIMINARY HEARING UNCONSTITUTIONALLY DENIED
HIM THE ASSISTANCE OF COUNSEL WITHIN THE MEANING OF GIDEON V.
WAINWRIGHT, SUPRA.  IN MAKING THAT ARGUMENT PETITIONER RELIES MAINLY ON
WHITE V. MARYLAND, 373 U.S. 59, IN WHICH THIS COURT REVERSED A
CONVICTION BASED IN PART UPON EVIDENCE THAT THE DEFENDANT HAD PLEADED
GUILTY TO THE CRIME AT A PRELIMINARY HEARING WHERE HE WAS WITHOUT
COUNSEL.  SINCE THE PRELIMINARY HEARING THERE, AS IN HAMILTON V.
ALABAMA, 368 U.S. 52, WAS ONE IN WHICH PLEAS TO THE CHARGE COULD BE
MADE, WE HELD IN WHITE AS IN HAMILTON THAT A PRELIMINARY PROCEEDING OF
THAT NATURE WAS SO CRITICAL A STAGE IN THE PROSECUTION THAT A DEFENDANT
AT THAT POINT WAS ENTITLED TO COUNSEL.  BUT THE STATE INFORMS US THAT
AT A TEXAS PRELIMINARY HEARING, SUCH AS IS INVOLVED HERE, PLEAS OF
GUILTY OR NOT GUILTY ARE NOT ACCEPTED AND THAT THE JUDGE DECIDES ONLY
WHETHER THE ACCUSED SHOULD BE BOUND OVER TO THE GRAND JURY AND IF SO
WHETHER HE SHOULD BE ADMITTED TO BAIL.  BECAUSE OF THESE SIGNIFICANT
DIFFERENCES IN THE PROCEDURES OF THE RESPECTIVE STATES, WE CANNOT SAY
THAT THE WHITE CASE IS NECESSARILY CONTROLLING AS TO THE RIGHT TO
COUNSEL.  WHETHER THERE MIGHT BE OTHER CIRCUMSTANCES MAKING THIS TEXAS
PRELIMINARY HEARING SO CRITICAL TO THE DEFENDANT AS TO CALL FOR
APPOINTMENT OF COUNSEL AT THAT STAGE WE NEED NOT DECIDE ON THIS RECORD,
AND THAT QUESTION WE RESERVE.  IN THIS CASE THE OBJECTIONS AND
ARGUMENTS IN THE TRIAL COURT AS WELL AS THE ARGUMENTS IN THE COURT OF
CRIMINAL APPEALS AND BEFORE US MAKE IT CLEAR THAT PETITIONER'S
OBJECTION IS BASED NOT SO MUCH ON THE FACT THAT HE HAD NO LAWYER WHEN
PHILLIPS MADE HIS STATEMENT AT THE PRELIMINARY HEARING, AS ON THE FACT
THAT USE OF THE TRANSCRIPT OF THAT STATEMENT AT THE TRIAL DENIED
PETITIONER ANY OPPORTUNITY TO HAVE THE BENEFIT OF COUNSEL'S CROSS
EXAMINATION OF THE PRINCIPAL WITNESS AGAINST HIM.  IT IS THAT LATTER
QUESTION WHICH WE DECIDE HERE. 

I. 

THE SIXTH AMENDMENT IS A PART OF WHAT IS CALLED OUR BILL OF RIGHTS. 
IN GIDEON V. WAINWRIGHT, SUPRA, IN WHICH THIS COURT HELD THAT THE SIXTH
AMENDMENT'S RIGHT TO THE ASSISTANCE OF COUNSEL IS OBLIGATORY UPON THE
STATES, WE DID SO ON THE GROUND THAT "A PROVISION OF THE BILL OF RIGHTS
WHICH IS 'FUNDAMENTAL AND ESSENTIAL TO A FAIR TRIAL' IS MADE OBLIGATORY
UPON THE STATES BY THE FOURTEENTH AMENDMENT."  372 U.S., AT 342.  AND
LAST TERM IN MALLOY V. HOGAN, 378 U.S. 1, IN HOLDING THAT THE FIFTH
AMENDMENT'S GUARANTEE AGAINST SELF-INCRIMINATION WAS MADE APPLICABLE TO
THE STATES BY THE FOURTEENTH, WE REITERATED THE HOLDING OF GIDEON THAT
THE SIXTH AMENDMENT'S RIGHT-TO-COUNSEL GUARANTEE IS "'A FUNDAMENTAL
RIGHT, ESSENTIAL TO A FAIR TRIAL,'" AND "THUS WAS MADE OBLIGATORY ON
THE STATES BY THE FOURTEENTH AMENDMENT."  378 U.S., AT 6.  SEE ALSO
MURPHY V. WATERFRONT COMM'N, 378 U.S. 52.  WE HOLD TODAY THAT THE SIXTH
AMENDMENT'S RIGHT OF AN ACCUSED TO CONFRONT THE WITNESSES AGAINST HIM
IS LIKEWISE A FUNDAMENTAL RIGHT AND IS MADE OBLIGATORY ON THE STATES BY
THE FOURTEENTH AMENDMENT. 

IT CANNOT SERIOUSLY BE DOUBTED AT THIS LATE DATE THAT THE RIGHT OF
CROSS-EXAMINATION IS INCLUDED IN THE RIGHT OF AN ACCUSED IN A CRIMINAL
CASE TO CONFRONT THE WITNESSES AGAINST HIM.  AND PROBABLY NO ONE,
CERTAINLY NO ONE EXPERIENCED IN THE TRIAL OF LAWSUITS, WOULD DENY THE
VALUE OF CROSS-EXAMINATION IN EXPOSING FALSEHOOD AND BRINGING OUT THE
TRUTH IN THE TRIAL OF A CRIMINAL CASE.  SEE, E.G., 5 WIGMORE, EVIDENCE
SEC. 1367 (3D ED. 1940).  THE FACT THAT THIS RIGHT APPEARS IN THE SIXTH
AMENDMENT OF OUR BILL OF RIGHTS REFLECTS THE BELIEF OF THE FRAMERS OF
THOSE LIBERTIES AND SAFEGUARDS THAT CONFRONTATION WAS A FUNDAMENTAL
RIGHT ESSENTIAL TO A FAIR TRIAL IN A CRIMINAL PROSECUTION.  MOREOVER,
THE DECISIONS OF THIS COURT AND OTHER COURTS* THROUGHOUT THE YEARS HAVE
CONSTANTLY EMPHASIZED THE NECESSITY FOR CROSS-EXAMINATION AS A
PROTECTION FOR DEFENDANTS IN CRIMINAL CASES.  THIS COURT IN KIRBY V.
UNITED STATES, 174 U.S. 47, 55, 56, REFERRED TO THE RIGHT OF
CONFRONTATION AS "ONE OF THE FUNDAMENTAL GUARANTEES OF LIFE AND
LIBERTY," AND "A RIGHT LONG DEEMED SO ESSENTIAL FOR THE DUE PROTECTION
OF LIFE AND LIBERTY THAT IT IS GUARDED AGAINST LEGISLATIVE AND JUDICIAL
ACTION BY PROVISIONS IN THE CONSTITUTION OF THE UNITED STATES AND IN
THE CONSTITUTIONS OF MOST IF NOT OF ALL THE STATES COMPOSING THE
UNION."  MR. JUSTICE STONE, WRITING FOR THE COURT IN ALFORD V. UNITED
STATES, 282 U.S. 687, 692, DECLARED THAT THE RIGHT OF CROSS-EXAMINATION
IS "ONE OF THE SAFEGUARDS ESSENTIAL TO A FAIR TRIAL."  AND IN SPEAKING
OF CONFRONTATION AND CROSS-EXAMINATION THIS COURT SAID IN GREENE V.
MCELROY, 360 U.S. 474: 

*SEE STATE AND ENGLISH CASES COLLECTED IN 5 WIGMORE, EVIDENCE SECS.
1367, 1395 (3D E. 1940).  STATE CONSTITUTIONAL AND STATUTORY PROVISIONS
SIMILAR TO THE SIXTH AMENDMENT ARE COLLECTED IN 5 WIGMORE, SUPRA, SEC.
1397, N. 1. 

"THEY HAVE ANCIENT ROOTS.  THEY FIND EXPRESSION IN THE SIXTH
AMENDMENT WHICH PROVIDES THAT IN ALL CRIMINAL CASES THE ACCUSED SHALL
ENJOY THE RIGHT 'TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM.' 
THIS COURT HAS BEEN ZEALOUS TO PROTECT THESE RIGHTS FROM EROSION."  360
U.S., AT 496-497 (FOOTNOTE OMITTED). 

THERE ARE FEW SUBJECTS, PERHAPS, UPON WHICH THIS COURT AND OTHER
COURTS HAVE BEEN MORE NEARLY UNANIMOUS THAN IN THEIR EXPRESSIONS OF
BELIEF THAT THE RIGHT OF CONFRONTATION AND CROSS-EXAMINATION IS AN
ESSENTIAL AND FUNDAMENTAL REQUIREMENT FOR THE KIND OF FAIR TRIAL WHICH
IS THIS COUNTRY'S CONSTITUTIONAL GOAL.  INDEED, WE HAVE EXPRESSLY
DECLARED THAT TO DEPRIVE AN ACCUSED OF THE RIGHT TO CROSS-EXAMINE THE
WITNESSES AGAINST HIM IS A DENIAL OF THE FOURTEENTH AMENDMENT'S
GUARANTEE OF DUE PROCESS OF LAW.  IN IN RE OLIVER, 333 U.S. 257, THIS
COURT SAID: 

"A PERSON'S RIGHT TO REASONABLE NOTICE OF A CHARGE AGAINST HIM, AND
AN OPPORTUNITY TO BE HEARD IN HIS DEFENSE - A RIGHT TO HIS DAY IN COURT
- ARE BASIS IN OUR SYSTEM OR JURISPRUDENCE; AND THESE RIGHTS INCLUDE,
AS A MINIMUM, A RIGHT TO EXAMINE THE WITNESSES AGAINST HIM, TO OFFER
TESTIMONY, AND TO BE REPRESENTED BY COUNSEL."  333 U.S., AT 273
(FOOTNOTE OMITTED). 

AND EARLIER THIS TERM IN TURNER V. LOUISIANA, 379 U.S. 466, 472-473,
WE HELD: 

"IN THE CONSTITUTIONAL SENSE, TRIAL BY JURY IN A CRIMINAL CASE
NECESSARILY IMPLIES AT THE VERY LEAST THAT THE 'EVIDENCE DEVELOPED'
AGAINST A DEFENDANT SHALL COME FROM THE WITNESS STAND IN A PUBLIC
COURTROOM WHERE THERE IS FULL JUDICIAL PROTECTION OF THE DEFENDANT'S
RIGHT OF CONFRONTATION, OF CROSS-EXAMINATION, AND OF COUNSEL." 

COMPARE WILLNER V. COMMITTEE ON CHARCTER & FITNESS, 373 U.S. 96, 103
104. 

WE ARE AWARE THAT SOME CASES, PARTICULARLY WEST V. LOUISIANA, 194
U.S. 258, 264, HAVE STATED THAT THE SIXTH AMENDMENT'S RIGHT OF
CONFRONTATION DOES NOT APPLY TO TRIALS IN STATE COURTS, ON THE GROUND
THAT THE ENTIRE SIXTH AMENDMENT DOES NOT SO APPLY.  SEE ALSO STEIN V.
NEW YORK, 346 U.S. 156, 195-196.  BUT OF COURSE SINCE GIDEON V.
WAINWRIGHT, SUPRA, IT NO LONGER CAN BROADLY BE SAID THAT THE SIXTH
AMENDMENT DOES NOT APPLY TO STATE COURTS.  AND AS THIS COURT SAID IN
MALLOY V. HOGAN, SUPRA, "THE COURT HAS NOT HESITATED TO RE-EXAMINE PAST
DECISIONS ACCORDING THE FOURTEENTH AMENDMENT A LESS CENTRAL ROLE IN THE
PRESERVATION OF BASIC LIBERTIES THAN THAT WHICH WAS CONTEMPLATED BY ITS
FRAMERS WHEN THEY ADDED THE AMENDMENT TO OUR CONSTITUTIONAL SCHEME." 
378 U.S. AT 5.  IN THE LIGHT OF GIDEON, MALLOY, AND OTHER CASES CITED
IN THOSE OPINIONS HOLDING VARIOUS PROVISIONS OF THE BILL OF RIGHTS
APPLICABLE TO THE STATE BY VIRTUE OF THE FOURTEENTH AMENDMENT, THE
STATEMENTS MADE IN WEST AND SIMILAR CASES GENERALLY DECLARING THAT THE
SIXTH AMENDMENT DOES NOT APPLY TO THE STATES CAN NO LONGER BE REGARDED
AS THE LAW.  WE HOLD THAT PETITIONER WAS ENTITLED TO BE TRIED IN
ACCORDANCE WITH THE PROTECTION OF THE CONFRONTATION GUARANTEE OF THE
SIXTH AMENDMENT, AND THAT THAT GUARANTEE, LIKE THE RIGHT AGAINST
COMPELLED SELF-INCRIMINATION, IS "TO BE ENFORCED AGAINST THE STATES
UNDER THE FOURTEENTH AMENDMENT ACCORDING TO THE SAME STANDARDS THAT
PROTECT THOSE PERSONAL RIGHTS AGAINST FEDERAL ENCROACHMENT."  MALLOY V.
HOGAN, SUPRA, 378 U.S., AT 10. 

   II. 

UNDER THIS COURT'S PRIOR DECISIONS, THE SIXTH AMENDMENT'S GUARANTEE
OF CONFRONTATION AND CROSS-EXAMINATION WAS UNQUESTIONABLY DENIED
PETITIONER IN THIS CASE.  AS HAS BEEN POINTED OUT, A MAJOR REASON
UNDERLYING THE CONSTITUTIONAL CONFRONTATION RULE IS TO GIVE A DEFENDANT
CHARGED WITH CRIME AN OPPORTUNITY TO CROSS-EXAMINE THE WITNESSES
AGAINST HIM.  SEE, E.G., DOWDELL V. UNITED STATES, 221 U.S. 325, 330;
MOTES V. UNITED STATES, 178 U.S. 458, 474; KIRBY V. UNITED STATES, 174
U.S. 47, 55-56; MATTOX V. UNITED STATES, 156 U.S. 237, 242-243.  CF.
HOPT V. UTAH, 110 U.S. 574, 581; QUEEN V. HEPBURN, 7 CRANCH 290, 295. 
THIS COURT HAS RECOGNIZED THE ADMISIBILITY AGAINST AN ACCUSED OF DYING
DECLARATIONS, MATTOX V. UNITED STATES, 146 U.S. 140, 151, AND OF
TESTIMONY OF A DECEASED WITNESS WHO HAS TESTIFIED AT A FORMER TRIAL,
MATTOX V. UNITED STATES, 156 U.S. 237, 240-244.  SEE ALSO DOWDELL
V.UNITED STATES, SUPRA, 221 U.S., AT 330; KIRBY V. UNITED STATES,
SUPRA, 174 U.S. AT 61.  NOTHING WE HOLD HERE IS TO THE CONTRARY.  THE
CASE BEFORE US WOULD BE QUITE A DIFFERENT ONE HAD PHILLIPS' STATEMENT
BEEN TAKEN AT A FULL-FLEDGED HEARING AT WHICH PETITIONER HAD BEEN
REPRESENTED BY COUNSEL WHO HAD BEEN GIVEN A COMPLETE AND ADEQUATE
OPPORTUNITY TO CROSS-EXAMINE.   COMPARE MOTES V. UNITED STATES, SUPRA,
178 U.S., AT 474.  THERE ARE OTHER ANALOGOUS SITUATIONS WHICH MIGHT NOT
FALL WITHIN THE SCOPE OF THE CONSTITUTIONAL RULE REQUIRING
CONFRONTATION OF WITNESSES.  THE CASE BEFORE US, HOWEVER, DOES NOT
PRESENT ANY SITUATION LIKE THOSE MENTIONED ABOVE OR OTHER ANALOGOUS TO
THEM.  BECAUSE THE TRANSCRIPT OF PHILLIPS' STATEMENT OFFERED AGAINST
PETITIONER AT HIS TRIAL HAD NOT BEEN TAKEN AT A TIME AND UNDER
CIRCUMSTANCES AFFORDING PETITIONER THROUGH COUNSEL AN ADEQUATE
OPPORTUNITY TO CROSS-EXAMINE PHILLIPS, ITS INTRODUCTION IN A FEDERAL
COURT IN A CRIMINAL CASE AGAINST POINTER WOULD HAVE AMOUNTED TO DENIAL
OF THE PRIVILEGE OF CONFRONTATION GUARANTEED BY THE SIXTH AMENDMENT. 
SINCE WE HOLD THAT THE RIGHT OF AN ACCUSED TO BE CONFRONTED WITH THE
WITNESSES AGAINST HIM MUST BE DETERMINED BY THE SAME STANDARDS WHETHER
THE RIGHT IS DENIED IN A FEDERAL OR STATE PROCEEDING, IT FOLLOWS THAT
USE OF THE TRANSCRIPT TO CONVICT PETITIONER DENIED HIM A CONSTITUTIONAL
RIGHT, AND THAT HIS CONVICTION MUST BE REVERSED.  REVERSED AND
REMANDED.    MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I AGREE THAT IN THE CIRCUMSTANCES THE ADMISSION OF THE STATEMENT IN
QUESTION DEPRIVED THE PETITIONER OF A RIGHT OF "CONFRONTATION" ASSURED
BY THE FOURTEENTH AMENDMENT.  I CANNOT SUBSCRIBE, HOWEVER, TO THE
CONSTITUTIONAL REASONING OF THE COURT. 

THE COURT HOLDS THAT THE RIGHT OF CONFRONTATION GUARANTEED BY THE
SIXTH AMENDMENT IN FEDERAL CRIMINAL TRIALS IS CARRIED INTO STATE
CRIMINAL CASES BY THE FOURTEENTH AMENDMENT.  THIS IS ANOTHER STEP IN
THE ONWARD MARCH OF THE LONG-SINCE DISCREDITED "INCORPORATION" DOCTRINE
(SEE, E.G., FAIRMAN, DOES THE FOURTEENTH AMENDMENT INCORPORATE THE BILL
OF RIGHTS?  THE ORIGINAL UNDERSTANDING, 2 STAN.  L. REV. 5 (1949);
FRANKFURTER, MEMORANDUM ON "INCORPORATION" OF THE BILL OF RIGHTS INTO
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, 78 HARV. L. REV.
746 (1965)), WHICH FOR SOME REASON THAT I HAVE NOT YET BEEN ABLE TO
FATHOM HAS COME INTO THE SUNLIGHT IN RECENT YEARS.  SEE, E.G., MAPP V.
OHIO, 367 U.S. 643; KER V. CALIFORNIA, 374 U.S. 23; MALLOY V. HOGAN,
378 U.S. 1. 

FOR ME THIS STATE JUDGMENT MUST BE REVERSED BECAUSE OF RIGHT OF
CONFRONTATION IS "IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY," PALKO V.
CONNECTICUT, 302 U.S. 319, 325, REFLECTED IN THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT INDEPENDENTLY OF THE SIXTH.   WHILE EITHER OF
THESE CONSTITUTIONAL APPROACHES BRINGS ONE TO THE SAME END RESULT IN
THIS PARTICULAR CASE, THERE IS A BASIC DIFFERENCE BETWEEN THE TWO IN
THE KIND OF FUTURE CONSTITUTIONAL DEVELOPMENT THEY PORTEND.  THE
CONCEPT OF FOURTEENTH AMENDMENT DUE PROCESS EMBODIED IN PALKO AND A
HOST OF OTHER THOUGHTFUL PAST DECISIONS NOW RAPIDLY FALLING INTO
DISCARD, RECOGNIZES THAT OUR CONSTITUTION TOLERATES, INDEED ENCOURAGES,
DIFFERENCES BETWEEN THE METHODS USED TO EFFECTUATE LEGITIMATE FEDERAL
AND STATE CONCERNS, SUBJECT TO THE REQUIREMENTS OF FUNDAMENTAL FAIRNESS
"IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY."  THE PHILOSOPHY OF
"INCORPORATION," ON THE OTHER HAND, SUBORDINATES ALL SUCH STATE
DIFFERENCES TO THE PARTICULAR REQUIREMENTS OF THE FEDERAL BILL OF
RIGHTS (BUT SEE KER V. CALIFORNIA, SUPRA, AT 34) AND INCREASINGLY
SUBJECTS STATE LEGAL PROCESSES TO ENVELOPING FEDERAL JUDICIAL
AUTHORITY.  "SELECTIVE" INCORPORATION OR "ABSORPTION" AMOUNTS TO LITTLE
MORE THAN A DILUTED FORM OF THE FULL INCORPORATION THEORY.  WHEREAS IT
REJECTS FULL INCORPORATION BECAUSE OF RECOGNITION THAT NOT ALL OF THE
GUARANTEES OF THE BILL OF RIGHTS SHOULD BE DEEMED "FUNDAMENTAL," IT AT
THE SAME TIME IGNORES THE POSSIBILITY THAT NOT ALL PHASES OF ANY GIVEN
GUARANTY DESCRIBED IN THE BILL OF RIGHTS ARE NECESSARILY FUNDAMENTAL. 

IT IS TOO OFTEN FORGOTTEN IN THESE ITEMS THAT THE AMERICAN FEDERAL
SYSTEM IS ITSELF CONSTITUTIONALLY ORDAINED, THAT IT EMBODIES VALUES
PROFOUNDLY MAKING FOR LASTING LIBERTIES IN THIS COUNTRY, AND THAT ITS
LEGITIMATE REQUIREMENTS DEMAND CONTINUING SOLID RECOGNITION IN ALL
PHASES OF THE WORK OF THIS COURT.  THE "INCORPORATION" DOCTRINES,
WHETHER FULL BLOWN OR SELECTIVE, ARE BOTH HISTORICALLY AND
CONSTITUTIONALLY UNSOUND AND INCOMPATIBLE WITHTHE MAINTENANCE OF OUR
FEDERAL SYSTEM ON EVEN COURSE. 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

I JOIN IN THE JUDGMENT REVERSING THIS CONVICTION, FOR THE REASON
THAT THE PETITIONER WAS DENIED THE OPPORTUNITY TO CROSS-EXAMINE,
THROUGH COUNSEL, THE CHIEF WITNESS FOR THE PROSECUTION.  BUT I DO NOT
JOIN IN THE COURT'S PRONOUNCEMENT WHICH MAKES "THE SIXTH AMENDMENT'S
RIGHT OF AN ACCUSED TO CONFRONT THE WITNESSES AGAINST HIM  ...
OBLIGATORY ON THE STATES."  THAT QUESTIONABLE TOUR DE FORCE SEEMS TO ME
ENTIRELY UNNECESSARY TO THE DECISION OF THIS CASE, WHICH I THINK IS
DIRECTLY CONTROLLED BY THE FOURTEENTH AMENDMENT'S GUARANTEE THAT NO
STATE SHALL "DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT
DUE PROCEWS OF LAW." 

THE RIGHT OF DEFENSE COUNSEL IN A CRIMINAL CASE TO CROSS-EXAMINE THE
PROSECUTOR'S LIVING WITNESSES IS "ONE OF THE FUNDAMENTAL GUARANTEES OF
LIFE AND LIBERTY," (FN1) AND "ONE OF THE SAFEGUARDS ESSENTIAL TO A FAIR
TRIAL."  (FN2)  IT IS, I THINK, AS INDISPENSABLE AN INGREDIENT AS THE
"RIGHT TO BE TRIED IN A COURTROOM PRESIDED OVER BY A JUDGE."  (FN3)
INDEED, THIS COURT HAS SAID SO THIS VERY TERM.  TURNER V. LOUISIANA,
379 U.S. 466, 472-473.  (FN4) 

HERE THAT RIGHT WAS COMPLETELY DENIED.  THEREFORE, AS THE COURT
CORRECLTY POINTS OUT, WE NEED NOT CONSIDER THE CASE WHICH COULD BE
PRESENTED IF PHILLIPS' STATEMENT HAD BEEN TAKEN AT A HEARING AT WHICH
THE PETITIONER'S COUNSEL WAS GIVEN A FULL OPPORTUNITY TO CROSS
EXAMINE.  SEE WEST V. LOUISIANA, 194 U.S. 258. 

FN1  KIRBY V. UNITED STATES, 174 U.S. 47, 55. 

FN2  ALFORD V. UNITED STATES, 282 U.S. 687, 692. 

FN3  RIDEAU V. LOUISIANA, 373 U.S. 723, 727. 

FN4  SEE ALSO IN RE MURCHISON, 349 U.S. 133, WHERE THE COURT SAID
THAT "DUE PROCESS REQUIRES AS A MINIMUM THAT AN ACCUSED BE GIVEN A
PUBLIC TRIAL AFTER REASONABLE NOTICE OF THE CHARGES, HAVE A RIGHT TO
EXAMINE WITNESSES AGAINST HIM, CALL WITNESSES ON HIS OWN BEHALF, AND BE
REPRESENTED BY COUNSEL."  349 U.S., AT 134. 

MR. JUSTICE GOLDBERG, CONCURRING. 

I AGREE WITH THE HOLDING OF THE COURT THAT "THE SIXTH AMENDMENT'S
RIGHT OF AN ACCUSED TO CONFRONT THE WITNESSES AGAINST HIM IS  ...  A
FUNDAMENTAL RIGHT AND IS MADE OBLIGATORY ON THE STATES BY THE
FOURTEENTH AMENDMENT."  ANTE, AT 403.  I THEREFORE JOIN IN THE OPINION
AND JUDGMENT OF THE COURT.  MY BROTHER HARLAN, WHILE AGREEING WITH THE
RESULT REACHED BY THE COURT, DEPLORES THE COURT'S REASONING AS "ANOTHER
STEP IN THE ONWARD MARCH OF THE LONG-SINCE DISCREDITED 'INCORPORATION'
DOCTRINE," ANTE, AT 408.  SINCE I WAS NOT ON THE COURT WHEN THE
INCORPORATION ISSUE WAS JOINED, SEE ADAMSON V. CALIFORNIA, 332 U.S. 46,
I DEEM IT APPROPRIATE TO SET FORTH BRIEFLY MY VIEW ON THIS SUBJECT. 

I NEED NOT RECAPITULATE THE ARGUMENTS FOR OR AGAINST INCORPORATION
WHETHER "TOTAL" OR "SELECTIVE."   THEY HAVE BEEN SET FORTH ADEQUATELY
ELSEWHERE.  (FN1)  MY BROTHER BLACK'S VIEW OF INCORPORATION HAS NEVER
COMMANDED A MAJORITY OF THE COURT, THOUGH IN ADAMSON IT WAS ASSENTED TO
BY FOUR JUSTICES.  THE COURT IN ITS DECISIONS HAS FOLLOWED A COURSE
WHEREBY CERTAIN GUARANTEES "HAVE BEEN TAKEN OVER FROM THE EARLIER
ARTICLES OF THE FEDERAL BILL OF RIGHTS AND BROUGHT WITHIN THE
FOURTEENTH AMENDMENT," PALKO V. CONNECTICUT, 302 U.S. 319, 326, BY A
PROCESS WHICH MIGHT APTLY BE DESCRIBED AS "A PROCESS OF ABSORPTION." 
IBID.  SEE COHEN V. HURLEY, 366 U.S. 117, 154 (DISSENTING OPINION OF
MR. JUSTICE BRENNAN); BRENNAN, THE BILL OF RIGHTS AND THE STATES, 36
N.Y.U.L. REV.  761 (1961).  THUS THE COURT HAS HELD THAT THE FOURTEENTH
AMENDMENT GUARANTEES AGAINST INFRINGEMENT BY THE STATES THE LIBERTIES
OF THE FIRST AMENDMENT, (FN2) THE FOURTH AMENDMENT, (FN3) THE JUST
COMPENSATION CLAUSE OF THE FIFTH AMENDMENT, (FN4) THE FIFTH AMENDMENT'S
PRIVILEGE AGAINST SELF-INCRIMINATION, (FN5) THE EIGHTH AMENDMENT'S
PROHIBITION OF CRUEL AND UNUSUAL PUNISHMENTS, (FN6) AND THE SIXTH
AMENDMENT'S GUARANTEE OF THE ASSISTANCE OF COUNSEL FOR AN ACCUSED IN A
CRIMINAL PROSECUTION.  (FN7) 

WITH ALL DEFERENCE TO MY BROTHER HARLAN, I CANNOT AGREE THAT THIS
PROCESS HAS "COME INTO THE SUNLIGHT IN RECENT YEARS."  ANTE, AT 408. 
RATHER, I BELIEVE THAT IT HAS ITS ORIGINS AT LEAST AS FAR BACK AS
TWINING V. NEW JERSEY, 211 U.S. 78, 99, WHERE THE COURT STATED THAT "IT
IS POSSIBLE THAT SOME OF THE PERSONAL RIGHTS SAFEGUARDED BY THE FIRST
EIGHT AMENDMENTS AGAINST NATIONAL ACTION MAY ALSO BE SAFEGUARDED
AGAINST STATE ACTION, BECAUSE A DENIAL OF THEM WOULD BE A DENIAL OF DUE
PROCESS OF LAW.  CHICAGO, BURLINGTON & QUINCY RAILROAD V. CHICAGO, 166
U.S. 226."  THIS PASSAGE AND THE AUTHORITY CITED MAKE CLEAR THAT WHAT
IS PROTECTED BY THE FOURTEENTH AMENDMENT ARE "RIGHTS," WHICH APPLY IN
EVERY CASE, NOT SOLELY IN THOSE CASES WHERE IT SEEMS "FAIR TO A
MAJORITY OF THE COURT TO AFFORD THE PROTECTION.  LATER CASES REAFFIRM
THAT THE PROCESS OF "ABSORPTION" IS ONE OF EXTENDING "RIGHTS."  SEE KER
V. CALIFORNIA, 374 U.S. 23; MALLOY V. HOGAN, 378 U.S. 1, AND CASES
CITED BY MR. JUSTICE BRENNAN IN HIS DISSENTING OPINION IN COHN V.
HURLEY, SUPRA, AT 156.  I AGREE WITH THESE DECISIONS, AS IS APPARENT
FROM MY VOTES IN GIDEON V. WAINWRIGHT, 372 U.S. 335; MALLOY V. HOGAN,
SUPRA, AND MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, AND MY CONCURRING
OPINION IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 297, AND I
SUBSCRIBE TO THE PROCESS BY WHICH FUNDAMENTAL GUARANTEES OF THE BILL OF
RIGHTS ARE ABSORBED BY THE FOURTEENTH AMENDMENT AND THEREBY APPLIED TO
THE STATES. 

FURTHERMORE, I DO NOT AGREE WITH MY BROTHER HARLAN THAT ONCE A
PROVISION OF THE BILL OF RIGHTS HAS BEEN HELD APPLICABLE TO THE STATES
BY THE FOURTEENTH AMENDMENT, IT DOES NOT APPLY TO THE STATES IN FULL
STRENGTH.  SUCH A VIEW WOULD HAVE THE FOURTEENTH AMENDMENT APPLY TO THE
STATES "ONLY A 'WATERED-DOWN, SUBJECTIVE VERSION OF THE INDIVIDUAL
GUARANTEES OF THE BILL OF RIGHTS.'"  MALLOY V. HOGAN, SUPRA, AT 10-11. 
IT WOULD ALLOW THE STATES GREATER LATITUDE THAN THE FEDERAL GOVERNMENT
TO ABRIDGE CONCEDEDLY FUNDAMENTAL LIBERTIES PROTECTED BY THE
CONSTITUTION.  WHILE I QUITE AGREE WITH MR. JUSTICE BRANDEIS THAT "IT
IS ONE OF THE HAPPY INCIDENTS OF THE FEDERAL SYSTEM THAT A  ...  STATE
MAY  ...  SERVE AS A LABORATORY; AND TRY NOVEL SOCIAL AND ECONOMIC
EXPERIMENTS," NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262, 280, 311
(DISSENTING OPINION), I DO NOT BELIEVE THAT THIS INCLUDES THE POWER TO
EXPERIMENT WITH THE FUNDAMENTAL LIBERTIES OF CITIZENS SAFEGUARDED BY
THE BILL OF RIGHTS.  MY BROTHER HARLAN'S VIEW WOULD ALSO REQUIRE THIS
COURT TO MAKE THE EXTREMELY SUBJECTIVE AND EXCESSIVELY DISCRETIONARY
DETERMINATION AS TO WHETHER A PRACTICE, FORBIDDEN THE FEDERAL
GOVERNMENT BY A FUNDAMENTAL CONSTITUTIONAL GUARANTEE, IS, AS VIEWED IN
THE FACTUAL CIRCUMSTANCES SURROUNDING EACH INDIVIDUAL CASE,
SUFFICIENTLY REPUGNANT TO THE NOTION OF DUE PROCESS AS TO BE FORBIDDEN
THE STATES. 

FINALLY, I DO NOT SEE THAT MY BROTHER HARLAN'S VIEW WOULD FURTHER ANY
LEGITIMATE INTERESTS OF FEDERALISM.  IT WOULD REQUIRE THIS COURT TO
INTERVENE IN THE STATE JUDICIAL PROCESS WITH CONSIDERABLE LACK OF
PREDICTABILITY AND WITH A CONSEQUENT LIKELIHOOD OF CONSIDERABLE
FRICTION.  THIS IS WELL ILLUSTRATED BY THE DIFFICULTIES WHICH WERE
FACED AND WERE ARTICULATED BY THE STATE COURTS ATTEMPTING TO APPLY THIS
COURT'S NOW DISCARDED RULE OF BETTS V. BRADY, 316 U.S. 455.  SEE GREEN,
THE BILL OF RIGHTS, THE FOURTEENTH AMENDMENT AND THE SUPREME COURT, 46
MICH. L. REV. 869, 897-898.  THESE DIFFICULTIES LED THE ATTORNEYS
GENERAL OF 22 STATES TO URGE THAT THIS COURT OVERRULE BETTS V. BRADY
AND APPLY FULLY THE SIXTH AMENDMENT'S GUARANTEE OF RIGHT TO COUNSEL TO
THE STATES THROUGH THE FOURTEENTH AMENDMENT.  SEE GIDEON V. WAINWRIGHT,
SUPRA, AT 336.  AND, TO DENY TO THE STATES THE POWER TO IMPAIR A
FUNDAMENTAL CONSTITUTIONAL RIGHT IS NOT TO INCREASE FEDERAL POWER, BUT,
RATHER, TO LIMIT THE POWER OF BOTH FEDERAL AND STATE GOVERNMENTS IN
FAVOR OF SAFEGUARDING THE FUNDAMENTAL RIGHTS AND LIBERTIES OF THE
INDIVIDUAL.  IN MY VIEW THIS PROMOTES RATHER THAN UNDERMINES THE BASIC
POLICY OF AVOIDING EXCESS CONCENTRATION OF POWER IN GOVERNMENT, FEDERAL
OR STATE, WHICH UNDERLIES OUR CONCEPTS OF FEDERALISM. 

I ADHERE TO AND SUPPORT THE PROCESS OF ABSORPTION BY MEANS OF WHICH
THE COURT HOLDS THAT CERTAIN FUNDAMENTAL GUARANTEES OF THE BILL OF
RIGHTS ARE MADE OBLIGATORY ON THE STATES THROUGH THE FOURTEENTH
AMENDMENT.  ALTHOUGH, AS THIS CASE ILLUSTRATES, THERE ARE DIFFERENCES
AMONG MEMBERS OF THE COURT AS TO THE THEORY BY WHICH THE FOURTEENTH
AMENDMENT PROTECTS THE FUNDAMENTAL LIBERTIES OF INDIVIDUAL CITIZENS, IT
IS NOTEWORTHY THAT THERE IS A LARGE AREA OF AGREEMENT, BOTH HERE AND IN
OTHER CASES, THAT CERTAIN BASIC RIGHTS ARE FUNDAMENTAL - NOT TO BE
DENIED THE INDIVIDUAL BY EITHER THE STATE OR FEDERAL GOVERNMENTS UNDER
THE CONSTITUTION.  SEE, E.G., CANTWELL V. CONNECTICUT, 310 U.S. 296;
NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S. 449; GIDEON V. WAINWRIGHT,
SUPRA; NEW YORK TIMES CO. V. SULLIVAN, SUPRA; TURNER V. LOUISIANA, 379
U.S. 466. 

FN1  SEE ADAMSON V. CALIFORNIA, SUPRA, AT 59 (CONCURRING OPINION OF
MR. JUSTICE FRANKFURTER); ID., AT 68 (DISSENTING OPINION OF MR. JUSTICE
BLACK); MALLOY V. HOGAN, 378 U.S. 1; ID., AT 14 (DISSENTING OPINION OF
MR. JUSTICE HARLAN); GIDEON V. WAINWRIGHT, 372 U.S. 335, 345
(CONCURRING OPINION OF MR. JUSTICE DOUGLAS); ID., AT 349 (CONCURRING
OPINION OF MR. JUSTICE HARLAN); POE V. ULLMAN, 367 U.S. 497, 509
(DISSENTING OPINION OF MR. JUSTICE DOUGLAS); FRANKFURTER, MEMORANDUM OF
"INCORPORATION" OF THE BILL OF RIGHTS INTO THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, 78 HARV. L. REV. 746, BLACK, THE BILL OF
RIGHTS, 35 N.Y.U.L. REV. 865 (1960); BRENNAN, THE BILL OF RIGHTS AND
THE STATES, 36 N.Y.U.L. REV. 761 (1961); FAIRMAN, DOES THE FOURTEENTH
AMENDMENT INCORPORATE THE BILL OF RIGHTS?  THE ORIGINAL UNDERSTANDING,
2 STAN.  L. REV. 5 (1949); GREEN, THE BILL OF RIGHTS, THE FOURTEENTH
AMENDMENT AND THE SUPREME COURT, 46 MICH. L. REV. 869 (1948); HENKIN,
"SELECTIVE INCORPORATION" IN THE FOURTEENTH AMENDMENT, 73 YALE L.J. 74
(1963). 

FN2  SEE, E.G., GITLOW V. NEW YORK, 268 U.S. 652, 666; DE JONGE V.
OREGON, 299 U.S. 353, 364; CANTWELL V. CONNECTICUT, 310 U.S. 296, 303;
LOUISIANA EX REL. GREMILLION V. NAACP, 366 U.S. 293, 296; NEW YORK
TIMES CO. V. SULLIVAN, 376 U.S. 254.    FN3  SEE WOLF V. COLORADO, 338
U.S. 25; MAPP V. OHIO, 367 U.S. 643. 

FN4 CHICAGO, B. & Q. R. CO. V. CHICAGO, 166 U.S. 226. 

FN5  MALLOY V. HOGAN, 378 U.S. 1. 

FN6  ROBINSON V. CALIFORNIA, 370 U.S. 660. 

FN7  GIDEON V. WAINWRIGHT, 372 U.S. 335. 
..END :
























DOUGLAS V. ALABAMA 380 U.S. 415 


NO. 313.  ARGUED MARCH 9-10, 1965.  - DECIDED APRIL 5, 1965.  - 42 ALA.
APP. 314, 163 SO. 2D 477, REVERSED AND REMANDED. 


PETITIONER AND AN ALLEGED ACCOMPLICE WERE TRIED SEPARATELY IN STATE
COURT FOR ASSAULT WITH INTENT TO MURDER.  THE ALLEGED ACCOMPLICE WAS
CALLED AS A STATE WITNESS IN PETITIONER'S TRIAL BUT REPEATEDLY REFUSED
ON SELF-INCRIMINATION GROUNDS TO TESTIFY.  UNDER THE GUISE OF CROSS
EXAMINING THE ACCOMPLICE AS A HOSTILE WITNESS, THE PROSECUTOR, OVER
PETITIONER'S OBJECTIONS AND DESPITE THE ACCOMPLICE'S CONTINUING REFUSAL
TO ANSWER, READ IN THE PRESENCE OF THE JURY THE LATTER'S PURPORTED
CONFESSION WHICH IMPLICATED THE PETITIONER.  THREE LAW ENFORCEMENT
OFFICERS THEN IDENTIFIED THE DOCUMENT AS THE CONFESSION SIGNED BY THE
ACCOMPLICE THOUGH IT WAS NOT OFFERED IN EVIDENCE.  THE JURY FOUND
PETITIONER GUILTY.  HELD: 

1.  PETITIONER'S INABILITY TO CROSS-EXAMINE THE ALLEGED ACCOMPLICE
ABOUT THE PURPORTED CONFESSION, THE PROSECUTOR'S READING OF WHICH MAY
WELL HAVE BEEN TREATED BY THE JURY AS SUBSTANTIAL AND COGENT EVIDENCE
OF GUILT, DENIED PETITIONER THE RIGHT OF CROSS-EXAMINATION SECURED BY
THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT WHICH IS MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH.  POINTER V. TEXAS, ANTE, P.
400, FOLLOWED.  PP. 418-420. 

2.  THE OPPORTUNITY TO CROSS-EXAMINE THE LAW ENFORCEMENT OFFICERS DID
NOT REDRESS DENIAL OF PETITIONER'S RIGHT OF CONFRONTATION.  PP. 419
420. 

3.  PETITIONER'S OBJECTIONS TO THE READING OF THE PURPORTED
CONFESSION ADEQUATELY PRESERVED HIS CLAIM OF DENIAL OF A FEDERAL
CONSTITUTIONAL RIGHT REGARDLESS OF THEIR ADEQUACY UNDER STATE LAW AS
CONSTRUED BY THE STATE APPELLATE COURT.  PP. 420-423. 

DOUGLAS V. ALABAMA. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER AND ONE LOYD WERE TRIED SEPARATELY IN ALABAMA'S
CIRCUIT COURT ON CHARGES OF ASSAULT WITH INTENT TO MURDER.  LOYD WAS
TRIED FIRST AND WAS FOUND GUILTY.  THE STATE THEN CALLED LOYD AS A
WITNESS AT PETITIONER'S TRIAL.  BECAUSE LOYD PLANNED TO APPEAL HIS
CONVICTION, HIS LAWYER, WHO ALSO REPRESENTED PETITIONER, ADVISED LOYD
TO RELY ON THE PRIVILEGE AGAINST SELF-INCRIMINATION AND NOT TO ANSWER
ANY QUESTIONS.  WHEN LOYD WAS SWORN, THE LAWYER OBJECTED, ON SELF
INCRIMINATION GROUNDS, "TO THIS WITNESS APPEARING ON THE STAND," BUT
THE OBJECTION WAS OVERRULED.  LOYD GAVE HIS NAME AND ADDRESS BUT,
INVOKING THE PRIVILEGE, REFUSED TO ANSWER ANY QUESTIONS CONCERNING THE
ALLEGED CRIME.  THE TRIAL JUDGE RULED THAT LOYD COULD NOT RELY ON THE
PRIVILEGE BECAUSE OF HIS CONVICTION, AND ORDERED HIM TO ANSWER, BUT
LOYD PERSISTED IN HIS REFUSAL.  (FN1)  THE JUDGE THEREUPON GRANTED THE
STATE SOLICITOR'S MOTION "TO DECLARE LOYD A HOSTILE WITNESS AND GIVE ME
THE PRIVILEGE OF CROSS-EXAMINATION."  THE SOLICITOR THEN PRODUCED A
DOCUMENT SAID TO BE A CONFESSION SIGNED BY LOYD.  UNDER THE GUISE OF
CROSS-EXAMINATION TO REFRESH LOYD'S RECOLLECTION, THE SOLICITOR
PURPORTED TO READ FROM THE DOCUMENT, PAUSING AFTER EVERY FEW SENTENCES
TO ASK LOYD, IN THE PRESENCE OF THE JURY, "DID YOU MAKE THAT
STATEMENT?"  EACH TIME, LOYD ASSERTED THE PRIVILEGE AND REFUSED TO
ANSWER, BUT THE SOLICITOR CONTINUED THIS FORM OF QUESTIONING UNTIL THE
ENTIRE DOCUMENT HAD BEEN READ.  (FN2)  THE SOLICITOR THEN CALLED THREE
LAW ENFORCEMENT OFFICERS WHO IDENTIFIED THE DOCUMENT AS EMBODYING A
CONFESSION MADE AND SIGNED BY LOYD.  ALTHOUGH MARKED AS AN EXHIBIT FOR
IDENTIFICATION, THE DOCUMENT WAS NOT OFFERED IN EVIDENCE. 

THIS PROCEDURE, PETITIONER ARGUES, VIOLATED HIS RIGHTS UNDER THE
CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT AS APPLIED TO THE STATES. 
THE STATEMENTS FROM THE DOCUMENT AS READ BY THE SOLICITOR RECITED IN
CONSIDERABLE DETAIL THE CIRCUMSTANCES LEADING TO AND SURROUNDING THE
ALLEGED CRIME; OF CRUCIAL IMPORTANCE, THEY NAMED THE PETITIONER AS THE
PERSON WHO FIRED THE SHOTGUN BLAST WHICH WOUNDED THE VICTIM.  (FN3)
THE JURY FOUND PETITIONER GUILTY.  THE COURT OF APPEALS OF ALABAMA
AFFIRMED, 42 ALA. APP. 314, 163 SO. 2D 477.  ALTHOUGH STATING THAT
LOYD'S ALLEGED CONFESSION WAS INADMISSIBLE IN EVIDENCE AGAINST
PETITIONER UNDER STATE LAW BECAUSE "THERE MUST BE CONFRONTATION FACE TO
FACE TO ALLOW VIVA VOCE CROSS-EXAMINATION BEFORE THE JURY," AND NOTING
THAT "IT MIGHT BE CLAIMED THAT THE REPEATED AND CUMULATIVE USE OF THE
CONFESSION MIGHT HAVE BEEN AN INDIRECT MODE OF GETTING THE INADMISSIBLE
CONFESSION IN EVIDENCE," THE COURT OF APPEALS AFFIRMED PETITIONER'S
CONVICTION ON THE GROUND THAT PETITIONER'S COUNSEL HAD "STOPPED
OBJECTING" AND THAT IN THAT CIRCUMSTANCE, "THE FAILURE TO OBJECT WAS
WAIVER."  42 ALA. APP., AT 329, 332, 163 SO. 2D, AT 493, 495.  THE
SUPREME COURT OF ALABAMA DDNIED REVIEW, 276 ALA. 703, 163 SO. 2D 496. 
WE GRANTED CERTIORARI, 379 U.S. 815.  WE REVERSE. 

               I. 

WE DECIDE TODAY THAT THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT
IS APPLICABLE TO THE STATES.  POINTER V. TEXAS, ANTE, P. 400.  OUR
CASES CONSTRUING THE CLAUSE HOLD THAT A PRIMARY INTEREST SECURED BY IT
IS THE RIGHT OF CROSS-EXAMINATION; AN ADEQUATE OPPORTUNITY FOR CROSS
EXAMINATION MAY SATISFY THE CLAUSE EVEN IN THE ABSENCE OF PHYSICAL
CONFRONTATION.  AS THE COURT SAID IN MATTOX V. UNITED STATES: 

"THE PRIMARY OBJECT OF THE CONSTITUTIONAL PROVISION IN QUESTION WAS
TO PREVENT DEPOSITIONS OR EX PARTE AFFIDAVITS  ...  BEING USED AGAINST
THE PRISONER IN LIEU OF A PERSONAL EXAMINATION AND CROSS-EXAMINATION OF
THE WITNESS IN WHICH THE ACCUSED HAS AN OPPORTUNITY, NOT ONLY OF
TESTING THE RECOLLECTION AND SIFTING THE CONSCIENCE OF THE WITNESS, BUT
OF COMPELLING HIM TO STAND FACE TO FACE WITH THE JURY IN ORDER THAT
THEY MAY LOOK AT HIM, AND JUDGE BY HIS DEMEANOR UPON THE STAND AND THE
MANNER IN WHICH HE GIVES HIS TESTIMONY WHETHER HE IS WORTHY OF
BELIEF."  156 U.S. 237, 242-243. 

SEE ALSO 5 WIGMORE, EVIDENCE SECS. 1365, 1397 (3D ED. 1940); STATE V.
HESTER, 137 S.C.  145, 189, 134 S.E. 885, 900 (1926). 

IN THE CIRCUMSTANCES OF THIS CASE, PETITIONER'S INABILITY TO CROSS
EXAMINE LOYD AS TO THE ALLEGED CONFESSION PLAINLY DENIED HIM THE RIGHT
OF CROSS-EXAMINATION SECURED BY THE CONFRONTATION CLAUSE.  LOYD'S
ALLEGED STATEMENT THAT THE PETITIONER FIRED THE SHOTGUN CONSTITUTED THE
ONLY DIRECT EVIDENCE THAT HE HAD DONE SO; COUPLED WITH THE DESCRIPTION
OF THE CIRCUMSTANCES SURROUNDING THE SHOOTING, THIS FORMED A CRUCIAL
LINK IN THE PROOF BOTH OF PETITIONER'S ACT AND OF THE REQUISITE INTENT
TO MURDER.  ALTHOUGH THE SOLICITOR'S READING OF LOYD'S ALLEGED
STATEMENT, AND LOYD'S REFUSALS TO ANSWER, WERE NOT TECHNICALLY
TESTIMONY, THE SOLICITOR'S READING MAY WELL HAVE BEEN THE EQUIVALENT IN
THE JURY'S MIND OF TESTIMONY THAT LOYD IN FACT MADE THE STATEMENT; AND
LOYD'S RELIANCE UPON THE PRIVILEGE CREATED A SITUATION IN WHICH THE
JURY MIGHT IMPROPERLY INFER BOTH THAT THE STATEMENT HAD BEEN MADE AND
THAT IT WAS TRUE.  SLOCHOWER V. BOARD OF HIGHER EDUCATION, 350 U.S.
551, 557-558; UNITED STATES V. MALONEY, 262 F.2D 535, 537 (C.A.2D CIR.
1959).  SINCE THE SOLICITOR WAS NOT A WITNESS, THE INFERENCE FROM HIS
READING THAT LOYD MADE THE STATEMENT COULD NOT BE TESTED BY CROSS
EXAMINATION.  SIMILARLY, LOYD COULD NOT BE CROSS-EXAMINED ON A
STATEMENT IMPUTED TO BUT NOT ADMITTED BY HIM.  NOR WAS THE OPPORTUNITY
TO CROSS-EXAMINE THE LAW ENFORCEMENT OFFICERS ADEQUATE TO REDRESS THIS
DENIAL OF THE ESSENTIAL RIGHT SECURED BY THE CONFRONTATION CLAUSE. 
INDEED, THEIR TESTIMONY ENHANCED THE DANGER THAT THE JURY WOULD TREAT
THE SOLICITOR'S QUESTIONING OF LOYD AND LOYD'S REFUSAL TO ANSWER AS
PROVING THE TRUTH OF LOYD'S ALLEGED CONFESSION.  BUT SINCE THEIR
EVIDENCE TENDED TO SHOW ONLY THAT LOYD MADE THE CONFESSION, CROSS
EXAMINATION OF THEM AS TO ITS GENUINENESS COULD NOT SUBSTITUTE FOR
CROSS-EXAMINATION OF LOYD TO TEST THE TRUTH OF THE STATEMENT ITSELF. 
MOTES V. UNITED STATES, 178 U.S. 458; CF. KIRBY V. UNITED STATES, 174
U.S. 47. 

HENCE, EFFECTIVE CONFRONTATION OF LOYD WAS POSSIBLE ONLY IF LOYD
AFFIRMED THE STATEMENT AS HIS.  HOWEVER, LOYD DID NOT DO SO, BUT RELIED
ON HIS PRIVILEGE TO REFUSE TO ANSWER.  WE NEED NOT DECIDE WHETHER LOYD
PROPERLY INVOKED THE PRIVILEGE IN LIGHT OF HIS CONVICTION.  IT IS
SUFFICIENT FOR THE PURPOSES OF DECIDING PETITIONER'S CLAIM UNDER THE
CONFRONTATION CLAUSE THAT NO SUGGESTION IS MADE THAT LOYD'S REFUSAL TO
ANSWER WAS PROCURED BY THE PETITIONER, SEE MOTES V. UNITED STATES,
SUPRA, AT 471; ON THIS RECORD IT APPEARS THAT LOYD WAS ACTING ENTIRELY
IN HIS OWN INTERESTS IN DOING SO.  THIS CASE CANNOT BE CHARACTERIZED AS
ONE WHERE THE PREJUDICE IN THE DENIAL OF THE RIGHT OF CROSS-EXAMINATION
CONSTITUTED A MERE MINOR LAPSE.  THE ALLEGED STATEMENTS CLEARLY BORE ON
A FUNDAMENTAL PART OF THE STATE'S CASE AGAINST PETITIONER.  THE
CIRCUMSTANCES ARE THEREFORE SUCH THAT "INFERENCES FROM A WITNESS'
REFUSAL TO ANSWER ADDED CRITICAL WEIGHT TO THE PROSECUTION'S CASE IN A
FORM NOT SUBJECT TO CROSS-EXAMINATION, AND THUS UNFAIRLY PREJUDICED THE
DEFENDANT."  NAMET V. UNITED STATES, 373 U.S. 179, 187.  SEE ALSO
FLETCHER V. UNITED STATES, 118 U.S. APP. D.C. 137, 332 F.2D 724
(1964). 

                 II. 

WE CANNOT AGREE WITH THE ALABAMA COURT OF APPEALS THAT PETITIONER'S
COUNSEL WAIVED THE RIGHT TO CONFRONTATION THROUGH FAILURE TO MAKE
SUFFICIENT OBJECTION TO THE READING OF LOYD'S ALLEGED CONFESSION.  THE
COURT STATED: "THERE MUST BE A RULING SOUGHT AND ACTED ON BEFORE THE
TRIAL JUDGE CAN BE PUT IN ERROR.  HERE THERE WAS NO RULING ASKED OR
INVOKED AS TO THE QUESTIONS EMBRACING THE ALLEGED CONFESSION."  42 ALA.
APP., AT 332, 163 SO. 2D, AT 495.  YET, AS THE COLLOQUY SET OUT IN THE
MARGIN SHOWS, PETITIONER'S COUNSEL DID OBJECT THREE TIMES TO THE
READING OF THE CONFESSION BEFORE THE JURY.  (FN4)  AFTER THE SECOND
TIME, THE SOLICITOR ASSURED HIM THAT HE ALREADY HAD AN OBJECTION IN -
PLAINLY IMPLYING THAT FURTHER OBJECTION TO THE READING OF THE DOCUMENT
WAS UNNECESSARY.  THE GROUND FOR OBJECTION TO LATER QUESTIONS WOULD
HAVE BEEN THE SAME, THAT THE CONFESSION WAS BEING READ TO THE JURY.  IN
LIGHT OF THIS RECORD IT IS DIFFICULT TO UNDERSTAND THE COURT OF
APPEALS' CONCLUSION; NEVERTHELESS, ACCEPTING THE FINDING AS AN
AUTHORITATIVE INTERPRETATION OF ALABAMA LAW, WE FOLLOW OUR CONSISTENT
HOLDINGS THAT THE ADEQUACY OF STATE PROCEDURAL BARS TO THE ASSERTION OF
FEDERAL QUESTIONS IS ITSELF A FEDERAL QUESTION.  SEE WRIGHT V. GEORGIA,
373 U.S. 284, 289-291.  IN DETERMINING THE SUFFICIENCY OF OBJECTIONS WE
HAVE APPLIED THE GENERAL PRINCIPLE THAT AN OBJECTION WHICH IS AMPLE AND
TIMELY TO BRING THE ALLEGED FEDERAL ERROR TO THE ATTENTION OF THE TRIAL
COURT AND ENABLE IT TO TAKE APPROPRIATE CORRECTIVE ACTION IS SUFFICIENT
TO SERVE LEGITIMATE STATE INTERESTS, AND THEREFORE SUFFICIENT TO
PRESERVE THE CLAIM FOR REVIEW HERE.  DAVIS V. WECHSLER, 263 U.S. 22,
24; LOVE V. GRIFFITH, 266 U.S. 32, 33-34.  NO LEGITIMATE STATE INTEREST
WOULD HAVE BEEN SERVED BY REQUIRING REPETITION OF A PATENTLY FUTILE
OBJECTION, ALREADY THRICE REJECTED, IN A SITUATION IN WHICH REPEATED
OBJECTION MIGHT WELL AFFRONT THE COURT OR PREJUDICE THE JURY BEYOND
REPAIR.  TOO, AFTER THE CONFESSION WAS READ, THE DEFENSE MOVED TO
EXCLUDE IT; IT THEN MOVED FOR A MISTRIAL AND FOR A NEW TRIAL; ALL THREE
MOTIONS WERE DENIED.  AFTER TWO OF THE THREE LAW ENFORCEMENT OFFICERS
HAD TESTIFIED, THE DEFENSE RENEWED ITS OBJECTIONS TO THE HEARSAY
REFERENCES IN LOYD'S ALLEGED CONFESSION AND AGAIN WAS OVERRULED.  ON
THESE FACTS, IT IS CLEAR THAT THE DEFENSE BROUGHT THE OBJECTION TO THE
ATTENTION OF THE COURT AT SEVERAL POINTS, AT ANY OF WHICH CORRECTIVE
ACTION COULD HAVE BEEN TAKEN BY STOPPING THE QUESTIONING, EXCUSING THE
JURY, OR EXCLUDING THE EVIDENCE.  TO THE EXTENT THAT THE ALABAMA RULE
REQUIRES OBJECTION AFTER EACH AND EVERY QUESTION IN THIS PROLONGED
SERIES, IT IS PLAINLY INADEQUATE TO BAR OUR REVIEW OF THE FEDERAL
QUESTION PRESENTED.  REVERSED AND REMANDED. 

FN1  LOYD HAD NOT BEEN SENTENCED AT THE TIME OF PETITIONER'S TRIAL. 
THE TRIAL JUDGE INITIALLY THREATENED TO HOLD LOYD IN CONTEMPT FOR
PERSISTING IN HIS REFUSAL TO ANSWER AFTER THE JUDGE HAD RULED THAT LOYD
COULD NOT RELY ON THE PRIVILEGE SINCE "THE JURY HAS ALREADY DETERMINED
YOUR GUILT."  HOWEVER, THE JUDGE DID NOT PROCEED WITH THE CONTEMPT
CITATION BUT INTERRUPTED PETITIONER'S TRIAL TO SENTENCE LOYD TO 20
YEARS' IMPRISONMENT. 

FN2 THERE WERE 21 QUESTIONS OCCUPYING SEVEN PAGES IN THE PRINTED
RECORD. 

FN3  TWO OF THE SOLICITOR'S QUESTIONS WERE AS FOLLOWS: 

"DID YOU MAKE THE FURTHER STATEMENT, 'WE INTENDED TO SHOOT THESE
TRUCKS BEFORE THEY GOT TO CENTREVILLE, BUT WHEN WE TURNED AND WENT BACK
NORTH AND PASSED THE TRUCKS AGAIN I WAS UNABLE TO BRING MYSELF TO THE
POINT OF SHOOTING THE TRUCKS.  AFTER WE PASSED THE TRUCKS THIS TIME WE
TURNED AROUND AND WENT SOUTH AGAIN TOWARD CENTREVILLE, ALABAMA.  THESE
TRUCKS WERE BOTH STOPPED AT A TRUCK STOP IN CENTREVILLE WHERE WE PASSED
THEM AGAIN AND WE PROCEEDED ON SOUTH ON NO. 5 ABOUT TWENTY MILES.  WE
SAT ALONGSIDE OF THE HIGHWAY WAITING FOR THE TRUCKS TO COME ON AND
SEVERAL TRUCKS PASSED US, SO WE THOUGHT WE OUGHT TO MOVE BEFORE SOMEONE
RECOGNIZED US.  WE WENT BACK NORTH AGAIN AND SAW A STATION WAGON THAT
LOOKED SUSPICIOUS SO WE TURNED OFF NO. 5 ONTO 16.  WE DROVE OVER THIS
ROUTE ABOUT SIX OR EIGHT MILES AND PULLED IN BEHIND A CHURCH.  WE SAT
THERE FOR ABOUT FIVE MINUTES AND THEN HEARD WHAT SOUNDED LIKE TWO
TRUCKS TOGETHER GOING SOUTH ON NO. 5.  WE THOUGHT THIS WAS THE TWO
TRUCKS AND WE WENT BACK TO NO. 5.  WHEN WE GOT TO NO. 5 I TOLD DOUGLAS
THAT I WOULD DRIVE AND HE SAID THAT WAS FINE BECAUSE I KNEW THE CAR
BETTER THAN HE.  I DROVE ON UNTIL WE CAUGHT THESE TRUCKS ABOUT FIVE OR
EIGHT MILES ABOVE THE JUNCTION OF NO. 5 AND NO. 80 AND WE PASSED THEM
PROCEEDING ON TO THE JUNCTION WHERE WE TURNED AROUND AND HEADED BACK
NORTH TO MEET THESE TRUCKS.  JESSE DOUGLAS WAS IN THE BACK SEAT WITH
THE AUTOMATIC SHOTGUN THAT BELONGS TO B.F. JACKSON AND HAD IT LOADED
WITH BUCKSHOT.  HE ROLLED DOWN THE WINDOW AND WHEN WE PASSED THESE
TRUCKS HE SHOT THE LEAD TRUCK AS WE PASSED THEM HEADING BACK NORTH AS
THEY WERE COMING SOUTH.  WE THEN WENT ON TO HIGHWAY 14, TURNED LEFT AND
WENT INTO GREENSBORO, ALABAMA.  WE TURNED LEFT IN GREENSBORO ON NO. 69,
DROVE SOUTH ABOUT FIVE MILES AND REALIZED WE WERE GOING THE WRONG
DIRECTION TO GO TO TUSCALOOSA, ALABAMA.  WE TURNED AROUND AND WENT BACK
UP TO NO. 69 TO TUSCALOOSA.'  DID YOU MAKE THAT STATEMENT?" 

"WERE YOU ASKED THE QUESTION, 'HOW MANY SHOTS WERE FIRED AT THE
TRUCK?'  AND YOUR ANSWER, 'ONLY ONE.'  DID YOU SAY THAT?" 

FN4  THE FOLLOWING OCCURRED: 

"Q.  IS THAT YOUR SIGNATURE (SHOWING WITNESS SIGNATURE ON
CONFESSION)? 

"A.  I'M NOT SURE. 

"Q.  I WILL ASK YOU IF ON JANUARY 20, 1962: 

"MR. ESCO: (INTERRUPTING) IF YOUR HONOR PLEASE, I OBJECT TO THE
READING OF ANY DOCUMENT OR PURPORTED CONFESSION:    "MR. MCLEOD:
(INTERRUPTING) THIS IS CROSS-EXAMINATION. 

"THE COURT:  HOSTILE WITNESS.  OVERRULE. 

"MR. ESCO:  WE EXCEPT, IF YOU PLEASE. 

"Q.  I WILL ASK YOU IF ON THE NIGHT OF JANUARY 20, 1962, IN SELMA,
ALABAMA, IN THE DALLAS COUNTY JAIL IF YOU DIDN'T MAKE THE FOLLOWING
STATEMENT:  (READING) 'I, OLEN RAY LOYD, MAKE THE - ': 

"MR. ESCO:  (INTERRUPTING) I OBJECT TO THIS BEING READ IN THE
PRESENCE OF THE JURY. 

"MR. MCLEOD:  YOU'VE ALREADY GOT AN OBJECTION IN THERE.    "MR. ESCO:
I OBJECT TO THIS BEING READ IN THE PRESENCE OF THE JURY. 

"THE COURT:  OVERRULE. 

"MR. ESCO:  WE EXCEPT." 

AFTER THE QUESTIONS WERE READ, DEFENSE COUNSEL RENEWED HIS
OBJECTIONS: 

"MR. ESCO:  I'D FIRST LIKE TO OBJECT TO THE READING OF THIS PURPORTED
CONFESSION ON THE GROUNDS THAT IT IS HEARSAY EVIDENCE, THAT IT WAS MADE
OUTSIDE THE HEARING OF THIS DEFENDANT, IT WAS NOT SUBJECT TO CROSS
EXAMINATION, AND WE MOVE TO EXCLUDE IT FROM THE EVIDENCE. 

"THE COURT:  THE COURT WILL DENY YOUR MOTION. 

"MR. ESCO:  WE EXCEPT, IF YOU PLEASE.  AND AT THIS TIME, YOUR HONOR,
WE MAKE A MOTION FOR A MISTRIAL ON THE GROUNDS THAT THIS JURY HAS BEEN
SO PREJUDICED FROM THESE PROCEEDINGS, AND FROM THE ATTEMPTS OF THE
PROSECUTION TO USE ILLEGAL EVIDENCE, THAT NO FAIR AND JUST VERDICT
WHATSOEVER COULD COME FROM A JURY THAT HAS BEEN SO PREJUDICED. 

"THE COURT:  MOTION IS DENIED. 

"MR. ESCO:  WE EXCEPT, IF YOU PLEASE. 

     * *         *         *         * 

"MR. ESCO:  WE WOULD LIKE TO MAKE A MOTION FOR A NEW TRIAL ON THE
GROUNDS THAT THE PROCEEDINGS HAVE BEEN VERY IRREGULAR HERE TODAY AND WE
FEEL THAT IT HAS BEEN PREJUDICIAL TO THIS DEFENDANT. 

"THE COURT:  ...  YOUR OBJECTION IS OVERRULED. 

"MR. ESCO:  IT IS A MOTION, YOUR HONOR. 

"THE COURT:  YOUR MOTION IS OVERRULED. 

"MR. ESCO:  WE EXCEPT, IF YOU PLEASE." 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

FOR REASONS STATED IN THE OPINION OF THE COURT, I AGREE THAT
PETITIONER WAS DENIED A RIGHT OF "CONFRONTATION:  EMBODIED IN THE
CONCEPT OF ORDERED LIBERTY.  I CONCUR IN THE JUDGMENT OF REVERSAL ON
THE PREMISES STATED IN MY OPINION CONCURRING IN THE RESULT IN POINTER
V. TEXAS, ANTE, P. 408, DECIDED TODAY. 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

THE COURT SAYS THAT WHAT HAPPENED IN THIS CASE VIOLATED THE
PETITIONER'S "RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT AS APPLIED TO THE STATES."  I CONCUR IN THE COURT'S JUDGMENT,
BECAUSE I THINK THE PETITIONER WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE
PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  THIS
DIFFERENCE IN VIEW IS, OF COURSE, FAR MORE THAN A MATTER OF MERE
SEMANTICS.  SEE MY OPINION CONCURRING IN THE RESULT IN POINTER V.
TEXAS, ANTE, P. 409. 
..END :









BURNETT V. NEW YORK CENTRAL RAILROAD CO. 380 U.S. 424 


NO. 437.  ARGUED MARCH 11, 1965.  - DECIDED APRIL 5, 1965.  - 332 F.2D
529, REVERSED AND REMANDED. 


PETITIONER BROUGHT AN ACTION IN AN OHIO COURT WITH JURISDICTION
AGAINST RESPONDENT, WHO WAS PROPERLY SERVED WITH PROCESS, UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT (FELA) ONLY A FEW DAYS BEFORE THE
EXPIRATION OF THE THREE-YEAR LIMITATION PERIOD PROVIDED BY THE ACT. 
BECAUSE UNDER OHIO LAW VENUE WAS IMPROPER, THE ACTION WAS DISMISSED. 
EIGHT DAYS LATER, AND AFTER THE EXPIRATION OF THE THREE-YEAR PERIOD,
PETITIONER FILED THE FELA ACTION IN THE FEDERAL COURT.  THE DISTRICT
COURT DISMISSED THE COMPLAINT AS UNTIMELY AND THE COURT OF APPEALS
AFFIRMED.  HELD:  WHERE A TIMELY FELA ACTION IS BEGUN IN A STATE COURT
HAVING JURISDICTION, THE DEFENDANT IS SERVED WITH PROCESS, AND THE CASE
IS DISMISSED FOR IMPROPER VENUE, THE FELA TIME LIMITATION IS TOLLED
DURING THE PENDENCY OF THE STATE SUIT AND UNTIL THE STATE COURT ORDER
DISMISSING THE ACTION BECOMES FINAL.  PP. 426-436. 

BURNETT V. NEW YORK CENTRAL RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

ON MARCH 13, 1963, PETITIONER, A RESIDENT OF KENTUCKY, BEGAN AN
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS
AMENDED, 45 U.S.C. SEC. 51 ET SEQ. (1958 ED.), IN THE COMMON PLEAS
COURT OF HAMILTON COUNTY, OHIO.  HE ALLEGED THAT HE HAD BEEN INJURED ON
MARCH 17, 1960, IN INDIANA, WHILE IN THE COURSE OF HIS EMPLOYMENT WITH
RESPONDENT, THE NEW YORK CENTRAL RAILROAD.  THE OHIO COURT HAD
JURISDICTION OF THE ACTION, AND RESPONDENT WAS PROPERLY SERVED WITH
PROCESS.  THE ACTION WAS DISMISSED UPON RESPONDENT'S MOTION, HOWEVER,
BECAUSE VENUE WAS IMPROPER.  WHILE IN OHIO IN MOST TRANSITORY ACTIONS
VENUE IS PROPER WHEREVER THE DEFENDANT CAN BE SUMMONED, SEE OHIO REV.
CODE SECS. 2307.36, 2307.38, 2307.39, VENUE IS PROPERLY LAID IN ACTIONS
AGAINST RAILROADS TO RECOVER FOR PERSONAL INJURIES ONLY IN THE COUNTY
OF THE PLAINTIFF'S RESIDENCE OR THE COUNTY WHERE THE INJURY OCCURRED. 
(FN1)  SEE OHIO REV. CODE SEC. 2307.37, LOFTUS V. PENNSYLVANIA R. CO.,
107 OHIO ST. 352, 140 N.E. 94.  ON JUNE 12, 1963, EIGHT DAYS AFTER HIS
STATE COURT ACTION WAS DISMISSED, PETITIONER BROUGHT AN IDENTICAL
ACTION IN THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
OHIO.  THE DISTRICT COURT DISMISSED PETITIONER'S COMPLAINT ON THE
GROUND THAT ALTHOUGH THE STATE SUIT WAS BROUGHT WITHIN THE LIMITATIONS
PERIOD, THE FEDERAL ACTION WAS NOT TIMELY AND WAS THEN BARRED BY THE
LIMITATION PROVISION OF THE FELA, 35 STAT. 66, AS AMENDED, 45 U.S.C.
SEC. 56 (1958 ED.), WHICH PROVIDES:  "THAT NO ACTION SHALL BE
MAINTAINED UNDER THIS ACT UNLESS COMMENCED WITHIN THREE YEARS FROM THE
DAY THE CAUSE OF ACTION ACCRUED."  230 F. SUPP. 767.  THE COURT OF
APPEALS, REJECTING PETITIONER'S ARGUMENT THAT HIS SUIT IN THE STATE
COURT HAD TOLLED THE FELA LIMITATION PROVISION, AFFIRMED THE DISTRICT
COURT'S DISMISSAL OF HIS SUIT.  332 F.2D 529.  THE COURT OF APPEALS
REASONED THAT SINCE THE LIMITATION PROVISION DOES NOT LIMIT A COMMON
LAW RIGHT, BUT, RATHER, IS CONTAINED IN THE SAME ACT WHICH CREATES THE
RIGHT BEING LIMITED, THE LIMITATION IS "SUBSTANTIVE" AND NOT
"PROCEDURAL."  FOR THIS REASON, IT HELD, "FAILURE TO BRING THE ACTION
WITHIN THE TIME PRESCRIBED EXTINGUISHED THE CAUSE OF ACTION."  332
F.2D, AT 530.  WE GRANTED CERTIORARI TO DETERMINE WHETHER PETITIONER'S
SUIT IN THE OHIO STATE COURT TOLLED THE FELA STATUTE OF LIMITATIONS. 
379 U.S. 913. 

THERE IS NO DOUBT THAT, AS A MATTER OF FEDERAL LAW, THE STATE ACTION
HERE INVOLVED WAS PROPERLY "COMMENCED" WITHIN THE MEANING OF THE
FEDERAL LIMITATION STATUTE WHICH PROVIDES THAT "NO ACTION SHALL BE
MAINTAINED  ...  UNLESS COMMENCED WITHIN THREE YEARS FROM THE DAY THE
CAUSE OF ACTION ACCRUED."  AS THIS COURT HELD IN HERB V. PITCAIRN, 325
U.S. 77, 79, "WHEN PROCESS HAS BEEN ADEQUATE TO BRING IN THE PARTIES
AND TO START THE CASE ON A COURSE OF JUDICIAL HANDLING WHICH MAY LEAD
TO FINAL JUDGMENT WITHOUT ISSUANCE OF NEW INITIAL PROCESS, IT IS ENOUGH
TO COMMENCE THE ACTION WITHIN THE FEDERAL STATUTE."  HAD OHIO LAW
PERMITTED THIS STATE COURT ACTION SIMPLY TO BE TRANSFERRED TO ANOTHER
STATE COURT, HERB V. PITCAIRN HOLDS THAT IT WOULD HAVE BEEN TIMELY. 
THE PROBLEM HERE, HOWEVER, IS THAT THE TIMELY STATE COURT ACTION WAS
NOT TRANSFERABLE UNDER OHIO LAW BUT, RATHER, WAS DISMISSED, AND A NEW
ACTION WAS BROUGHT IN A FEDERAL COURT MORE THAN THREE YEARS AFTER THE
CAUSE OF ACTION ACCRUED.  NONETHELESS, FOR THE REASONS SET OUT BELOW,
WE HOLD THAT THE PRINCIPLES UNDERLYING THE COURT'S DECISION IN HERB V.
PITCAIRN LEAD TO THE CONCLUSION THAT PETITIONER'S STATE COURT ACTION
TOLLED THE FEDERAL LIMITATION PROVISION AND THEREFORE PETITIONER'S
FEDERAL COURT ACTION HERE WAS TIMELY. 

THE BASIC QUESTION TO BE ANSWERED IN DETERMINING WHETHER, UNDER A
GIVEN SET OF FACTS, A STATUTE OF LIMITATIONS IS TO BE TOLLED, IS ONE
"OF LEGISLATIVE INTENT WHETHER THE RIGHT SHALL BE ENFORCEABLE ...
AFTER THE PRESCRIBED TIME."  MIDSTATE HORTICULTURAL CO. V. PENNSYLVANIA
R. CO., 320 U.S. 356, 360.  CLASSIFICATION OF SUCH A PROVISION AS
"SUBSTANTIVE" RATHER THAN "PROCEDURAL" DOES NOT DETERMINE WHETHER OR
UNDER WHAT CIRCUMSTANCES THE LIMITATION PERIOD MAY BE EXTENDED.  (FN2)
AS THIS COURT HAS EXPRESSLY HELD, THE FELA LIMITATION PERIOD IS NOT
TOTALLY INFLEXIBLE, BUT, UNDER APPROPRIATE CIRCUMSTANCES, IT MAY BE
EXTENDED BEYOND THREE YEARS.  GLUS V. BROOKLYN EASTERN TERMINAL, 359
U.S. 231.  SEE OSBOURNE V. UNITED STATES, 164 F.2D 767 (C.A.2D CIR.);
SCARBOROUGH V. ATLANTIC COAST LINE R. CO., 178 F.2D 253 (C.A. 4TH
CIR.); FRABUTT V. NEW YORK, C. & ST. L.R. CO., 84 F. SUPP.  460
(D.C.W.D. PA.).  THESE AUTHORITIES INDICATE THAT THE BASIC INQUIRY IS
WHETHER CONGRESSIONAL PURPOSE IS EFFECTUATED BY TOLLING THE STATUTE OF
LIMITATIONS IN GIVEN CIRCUMSTANCES. 

IN ORDER TO DETERMINE CONGRESSIONAL INTENT, WE MUST EXAMINE THE
PURPOSES AND POLICIES UNDERLYING THE LIMITATION PROVISION, THE ACT
ITSELF, AND THE REMEDIAL SCHEME DEVELOPED FOR THE ENFORCEMENT OF THE
RIGHTS GIVEN BY THE ACT.  SUCH AN EXAMINATION LEADS US TO CONCLUDE THAT
IT EFFECTUATES THE BASIC CONGRESSIONAL PURPOSES IN ENACTING THIS HUMANE
AND REMEDIAL ACT, (FN3) AS WELL AS THOSE POLICIES EMBODIED IN THE ACT'S
LIMITATION PROVISION, TO HOLD THAT WHEN A PLAINTIFF BEGINS A TIMELY
FELA ACTION IN A STATE COURT OF COMPETENT JURISDICTION, SERVICE OF
PROCESS IS MADE UPON THE OPPOSING PARTY, AND THE STATE COURT ACTION IS
LATER DISMISSED BECAUSE OF IMPROPER VENUE, THE FELA LIMITATION IS
TOLLED DURING THE PENDENCY OF THE STATE ACTION. 

STATUTES OF LIMITATIONS ARE PRIMARILY DESIGNED TO ASSURE FAIRNESS TO
DEFENDANTS.  SUCH STATUTES "PROMOTE JUSTICE BY PREVENTING SURPRISES
THROUGH THE REVIVAL OF CLAIMS THAT HAVE BEEN ALLOWED TO SLUMBER UNTIL
EVIDENCE HAS BEEN LOST, MEMORIES HAVE FADED, AND WITNESSES HAVE
DISAPPEARED.  THE THEORY IS THAT EVEN IF ONE HAS A JUST CLAIM IT IS
UNJUST NOT TO PUT THE ADVERSARY ON NOTICE TO DEFEND WITHIN THE PERIOD
OF LIMITATION AND THAT THE RIGHT TO BE FREE OF STALE CLAIMS IN TIME
COMES TO PREVAIL OVER THE RIGHT TO PROSECUTE THEM."  ORDER OF RAILROAD
TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, INC., 321 U.S. 342, 348-349. 
MOREOVER, THE COURTS OUGHT TO BE RELIEVED OF THE BURDEN OF TRYING STALE
CLAIMS WHEN A PLAINTIFF HAS SLEPT ON HIS RIGHTS.  (FN4) 

THIS POLICY OF REPOSE, DESIGNED TO PROTECT DEFENDANTS, IS FREQUENTLY
OUTWEIGHED, HOWEVER, WHERE THE INTERESTS OF JUSTICE REQUIRE VINDICATION
OF THE PLAINTIFF'S RIGHTS.  THUS, THIS COURT HAS HELD THAT AN FELA
ACTION IS NOT BARRED, THOUGH BROUGHT MORE THAN THREE YEARS AFTER THE
CAUSE OF ACTION ACCRUED, WHERE A DEFENDANT MISLED THE PLAINTIFF INTO
BELIEVING THAT HE HAD MORE THAN THREE YEARS IN WHICH TO BRING THE
ACTION.  GLUS V. BROOKLYN EASTERN TERMINAL, SUPRA.  MOREOVER, IT HAS
BEEN HELD THAT THE FELA LIMITATION PROVISION IS TOLLED WHEN WAR HAS
PREVENTED A PLAINTIFF FROM BRINGING HIS SUIT, EVEN THOUGH A DEFENDANT
IN SUCH A CASE MIGHT NOT KNOW OF THE PLAINTIFF'S DISABILITY AND MIGHT
BELIEVE THAT THE STATUTE OF LIMITATIONS RENDERS HIM IMMUNE FROM SUIT. 
SEE OSBOURNE V. UNITED STATES, SUPRA; FRABUTT V. NEW YORK, C. & ST.L.R.
CO., SUPRA.  IN SUCH CASES A PLAINTIFF HAS NOT SLEPT ON HIS RIGHTS BUT,
RATHER, HAS BEEN PREVENTED FROM ASSERTING THEM. 

CONSIDERATIONS IN FAVOR OF TOLLING THE FEDERAL STATUTE OF LIMITATIONS
IN THIS CASE ARE SIMILAR TO THOSE LEADING TO AN EXTENSION OF THE
LIMITATION PERIOD IN THE CASES MENTIONED ABOVE.  PETITIONER HERE DID
NOT SLEEP ON HIS RIGHTS BUT BROUGHT AN ACTION WITHIN THE STATUTORY
PERIOD IN A STATE COURT OF COMPETENT JURISDICTION.  SERVICE OF PROCESS
WAS MADE UPON THE RESPONDENT NOTIFYING HIM THAT PETITIONER WAS
ASSERTING HIS CAUSE OF ACTION.  WHILE VENUE WAS IMPROPER IN THE STATE
COURT, UNDER OHIO LAW VENUE OBJECTIONS MAY BE WAIVED BY THE DEFENDANT,
(FN5) AND EVIDENTLY IN PAST CASES DEFENDANT RAILROADS, INCLUDING THIS
RESPONDENT, HAD WAIVED OBJECTIONS TO VENUE SO THAT SUITS BY
NONRESIDENTS OF OHIO COULD PROCEED IN STATE COURTS.  (FN6) PETITIONER,
THEN, FAILED TO FILE AN FELA ACTION IN THE FEDERAL COURTS, NOT BECAUSE
HE WAS DISINTERESTED, BUT SOLELY BECAUSE HE FELT THAT HIS STATE ACTION
WAS SUFFICIENT.  RESPONDENT COULD NOT HAVE RELIED UPON THE POLICY OF
REPOSE EMBODIED IN THE LIMITATION STATUTE, FOR IT WAS AWARE THAT
PETITIONER WAS ACTIVELY PURSUING HIS FELA REMEDY; IN FACT, RESPONDENT
APPEARED SPECIALLY IN THE OHIO COURT TO FILE A MOTION FOR DISMISSAL ON
GROUNDS OF IMPROPER VENUE. 

BOTH FEDERAL AND STATE JURISDICTIONS HAVE RECOGNIZED THE UNFAIRNESS
OF BARRING A PLAINTIFF'S ACTION SOLELY BECAUSE A PRIOR TIMELY ACTION IS
DISMISSED FOR IMPROPER VENUE AFTER THE APPLICABLE STATUTE OF
LIMITATIONS HAS RUN.  IN BOTH FEDERAL AND STATE SYSTEMS OF JUSTICE
RULES HAVE BEEN DEVISED TO PREVENT THIS FROM HAPPENING.  THUS A FEDERAL
STATUTE, 28 U.S.C.  SEC. 1406(A), ALLOWS A DISTRICT COURT "OF A
DISTRICT IN WHICH IS FILED A CASE LAYING VANUE IN THE WRONG DIVISION OR
DISTRICT  ...  IF IT BE IN THE INTEREST OF JUSTICE," TO "TRANSFER SUCH
CASE TO ANY DISTRICT OR DIVISION IN WHICH IT COULD HAVE BEEN BROUGHT." 
(FN7)  CONGRESS THEREBY RECOGNIZED THAT THE FILING OF A LAWSUIT "ITSELF
SHOWS THE PROPER DILIGENCE ON THE PART OF THE PLAINTIFF WHICH  ...
STATUTES OF LIMITATION WERE INTENDED TO INSURE.  IF BY REASON OF THE
UNCERTAINTIES OF PROPER VENUE A MISTAKE IS MADE  ...  'THE INTEREST OF
JUSTICE' MAY REQUIRE THAT THE COMPLAINT  ...  BE TRANSFERRED IN ORDER
THAT THE PLAINTIFF NOT BE PENALIZED BY  ...  'TIME-CONSUMING AND
JUSTICE-DEFEATING TECHNICALITIES.'"  GOLDLAWR, INC. V. HEIMAN, 369 U.S.
463, 467.  IF PETITIONER IN THIS CASE HAD INSTITUTED HIS SUIT IN A
FEDERAL COURT WHERE VENUE WAS IMPROPER, HIS CASE COULD SIMPLY HAVE BEEN
TRANSFERRED UNDER SEC. 1406(A) TO A COURT WITH PROPER VENUE; THE
STATUTE OF LIMITATIONS WOULD NOT HAVE BARRED HIS ACTION. 

THE STATES HAVE DEVELOPED TWO METHODS FOR PRESERVING CAUSES OF ACTION
WHICH WOULD OTHERWISE BE BARRED BY THE PASSING OF A LIMITATION PERIOD
AFTER A PLAINTIFF HAS BROUGHT HIS ACTION IN A COURT WITH IMPROPER
VENUE.  THE FIRST METHOD IS ANALOGOUS TO THE CONGRESSIONAL STATUTE, 28
U.S.C. SEC. 1406(A), AND PERMITS TRANSFER WITHIN THE STATE FROM A COURT
WITH IMPROPER VENUE TO ONE WHERE VENUE IS PROPER.  (FN8)  THIS COURT
HAS HELD THAT WHEN A TIMELY FELA ACTION IS BROUGHT IN A STATE COURT
WITHOUT PROPER VENUE AND SERVICE OF PROCESS ISSUES, THE STATUTE OF
LIMITATIONS CANNOT BAR THE ACTION WHEN IT IS LATER TRANSFERRED O A
PROPER STATE COURT AFTER THE LIMITATION PERIOD HAS RUN.  HERB V.
PITCAIRN, SUPRA.  THUS, IF VENUE FOR PETITIONER'S ACTION WERE PROPER IN
SOME OTHER COUNTY IN OHIO, AND IF OHIO CHOSE TO PRESERVE IMPROPER VENUE
ACTIONS BY MEANS OF A "TRANSFER" STATUTE, PETITIONER'S ACTION WOULD NOT
HAVE BEEN BARRED BY THE STATUTE OF LIMITATIONS.  THE SECOND METHOD USED
BY MANY STATES TO PRESERVE ACTIONS BROUGHT IN A COURT WHERE VENUE IS
IMPROPER IS A "SAVING" STATUTE.  (FN9) SUCH A STATUTE SPECIFICALLY
GIVES TO A PLAINTIFF WHOSE TIMELY ACTION IS DISMISSED FOR PROCEDURAL
REASONS SUCH AS IMPROPER VENUE A SPECIFIED TIME IN WHICH TO BRING A
SECOND ACTION.  OHIO HAS SUCH A STATUTE, OHIO REV. CODE SEC. 2305.19
AND, HAD PETITIONER'S ACTION BEEN ONE ARISING UNDER OHIO LAW, HE WOULD
HAVE HAD AN ADDITIONAL YEAR IN WHICH TO FILE HIS ACTION IN A PROPER
COURT.  STATE CAUSES OF ACTION BROUGHT IN A COURT WHERE VENUE IS
IMPROPER ARE PRESERVED BY ONE OR THE OTHER OF THESE TWO METHODS IN 44
STATES.  (FN10) 

THESE FACTORS POINT TO THE CONCLUSION THAT CONGRESS DID NOT INTEND
THE STATUTE OF LIMITATIONS TO BAR A PLAINTIFF WHO BRINGS A TIMELY FELA
ACTION IN A STATE COURT OF COMPETENT JURISDICTION, WHO SERVES THE
DEFENDANT WITH PROCESS, AND WHOSE ACTION IS LATER DISMISSED FOR
IMPROPER VENUE.  THIS DOES NOT MEAN THAT WE CAN ACCEPT PETITIONER'S
ARGUMENT THAT THE FEDERAL LIMITATION PROVISION INCORPORATES THE OHIO
SAVING STATUTE.  TO ALLOW THE LIMITATION PROVISION TO INCORPORATE STATE
SAVING STATUTES WOULD PRODUCE NONUNIFORM PERIODS OF LIMITATION IN THE
SEVERAL STATES.  THE SCOPE OF SUCH STATUTES AND THE LENGTH OF
ADDITIONAL TIME THEY ALLOW VARY CONSIDERABLY FROM STATE TO STATE. 
(FN11)  MOREOVER, NOT ALL STATES HAVE SAVING STATUTES.  (FN12)  THIS
COURT HAS LONG RECOGNIZED THAT THE FELA "HAS A UNIFORM OPERATION, AND
NEITHER IS NOR CAN BE DEFLECTED THEREFROM BY LOCAL STATUTES."  PANAMA
R. CO. V. JOHNSON, 264 U.S. 375, 392; SECOND EMPLOYERS' LIABILITY
CASES, 223 U.S. 1, 51, 55.   THIS COURT HAS ALSO SPECIFICALLY HELD THAT
"THE PERIOD OF TIME WITHIN WHICH AN ACTION MAY BE COMMENCED IS A
MATERIAL ELEMENT IN  ...  A UNIFORMITY OF OPERATION" WHICH CONGRESS
WOULD NOT WISH "TO BE DESTROYED BY THE VARYING PROVISIONS OF THE STATE
STATUTES OF LIMITATION."  ENGEL V. DAVENPORT, 271 U.S. 33, 39.  THE
INCORPORATION OF VARIANT STATE SAVING STATUTES WOULD DEFEAT THE AIM OF
A FEDERAL LIMITATION PROVISION DESIGNED TO PRODUCE NATIONAL
UNIFORMITY. 

ON THE OTHER HAND, TO ACCEPT RESPONDENT'S ARGUMENT THAT THE
LIMITATION PROVISION IS NOT TOLLED UNDER THE CIRCUMSTANCES PRESENT HERE
WOULD DO EVEN GREATER VIOLENCE TO THE POLICIES UNDERLYING THE
LIMITATION PROVISION AND THE ACT.  IT WOULD PRODUCE A SUBSTANTIAL
NONUNIFORMITY BY CREATING A PROCEDURAL ANOMALY.  A PLAINTIFF WHO BRINGS
A TIMELY FELA ACTION IN A FEDERAL COURT WHERE VENUE IS IMPROPER WOULD
NOT BE BARRED BY THE SUBSEQUENT RUNNING OF THE LIMITATION PERIOD, 28
U.S.C. SEC. 1406(A), NOR WOULD A PLAINTIFF WHO BRINGS A TIMELY FELA
ACTION IN A STATE COURT WHERE VENUE IS IMPROPER BE BARRED BY THE
SUBSEQUENT RUNNING OF THE LIMITATION PERIOD PROVIDED THAT THE STATE HAS
A "TRANSFER" STATUTE AND VENUE IS PROPER ELSEWHERE IN THE STATE.  HERB
V. PITCAIRN, SUPRA.  HOWEVER, A SIMILAR PLAINTIFF IN A STATE COURT
WOULD BE BARRED FROM FURTHER ACTIONS BY THE RUNNING OF THE LIMITATION
PERIOD IF THE STATE RELIES UPON A "SAVING" STATUTE, RATHER THAN A
"TRANSFER" STATUTE TO PRESERVE SIMILAR STATE ACTIONS.  (FN13)  THUS, IN
EFFECT, A NONUNIFORM LIMITATION PROVISION WOULD BE PRODUCED.  YET, AS
WE HAVE POINTED OUT, A MAJOR REASON FOR HAVING A FEDERAL LIMITATION
PROVISION WAS TO ACHIEVE NATIONAL UNIFORMITY.  ENGEL V. DAVENPORT,
SUPRA.  MOREOVER, TO ACCEPT RESPONDENT'S POSITION COULD ONLY DISCOURAGE
FELA ACTIONS IN THE COURTS OF CERTAIN STATES.  YET CONGRESS, IN
PROVIDING FOR CONCURRENT STATE AND FEDERAL COURT JURISDICTION AND
PROHIBITING REMOVAL OF FELA CASES TO FEDERAL COURTS, HAS SOUGHT TO
PROTECT THE PLAINTIFF'S RIGHT TO BRING AN FELA ACTION IN A STATE
COURT.  SEE GREAT NORTHERN R. CO. V. ALEXANDER, 246 U.S. 276.  CF.
GIBSON, THE VENUE CLAUSE AND TRANSPORTATION OF LAWSUITS, 18 LAW &
CONTEMP.  PROB.  367 (1953).  FURTHER, AS WE HAVE POINTED OUT, BOTH
CONGRESS AND THE STATES HAVE MADE CLEAR, THROUGH VARIOUS PROCEDURAL
STATUTES, THEIR DESIRE TO PREVENT TIMELY ACTIONS BROUGHT IN COURTS WITH
IMPROPER VENUE FROM BEING TIME-BARRED MERELY BECAUSE THE LIMITATION
PERIOD EXPIRED WHILE THE ACTION WAS IN THE IMPROPER COURT.  FINALLY,
THE HUMANITARIAN PURPOSE OF THE FELA MAKES CLEAR THAT CONGRESS WOULD
NOT WISH A PLAINTIFF DEPRIVED OF HIS RIGHTS WHEN NO POLICY UNDERLYING A
STATUTE OF LIMITATIONS IS SERVED IN DOING SO. 

THESE CONSIDERATIONS THUS LEAD US TO CONCLUDE THAT WHEN A PLAINTIFF
BEGINS A TIMELY FELA ACTION IN A STATE COURT HAVING JURISDICTION, AND
SERVES THE DEFENDANT WITH PROCESS AND PLAINTIFF'S CASE IS DISMISSED FOR
IMPROPER VENUE, THE FELA LIMITATION IS TOLLED DURING THE PENDENCY OF
THE STATE SUIT.  WE BELIEVE THAT THE INTERESTS OF UNIFORMITY EMBODIED
IN THE ACT ARE BEST SERVED BY HOLDING THAT THIS RULE, TOLLING THE
STATUTE, APPLIES IN ALL STATES REGARDLESS OF WHETHER OR NOT A STATE HAS
A "SAVING" STATUTE.  WE FURTHER HOLD, UNDER FAMILIAR PRINCIPLES WHICH
HAVE BEEN APPLIED TO STATUTES OF LIMITATIONS, THAT THE LIMITATION
PROVISION IS TOLLED UNTIL THE STATE COURT ORDER DISMISSING THE STATE
ACTION BECOMES FINAL BY THE RUNNING OF THE TIME DURING WHICH AN APPEAL
MAY BE TAKEN OR THE ENTRY OF A FINAL JUDGMENT ON APPEAL.  (FN14)  WHILE
THIS RULE PRODUCES A MINOR NONUNIFORMITY SINCE THE TIME ALLOWED FOR
TAKING AN APPEAL IS NOT THE SAME IN ALL STATES, TO ADOPT STATE "SAVING"
STATUTES WOULD BE FAR LESS UNIFORM.  THE PERIOD "SAVED" UNDER SUCH
STATUTES VARIES WIDELY AMONG THE STATES, AND SOME STATES DO NOT HAVE
"SAVING" STATUTES.  SIMILARLY, TO TOLL THE FEDERAL STATUTE FOR A
"REASONABLE TIME" AFTER THE STATE COURT ORDERS THE PLAINTIFF'S ACTION
DISMISSED WOULD CREATE UNCERTAINTY AS TO EXACTLY WHEN THE LIMITATION
PERIOD AGAIN BEGINS TO RUN.  THIS UNCERTAINTY WOULD BE COMPOUNDED BY
APPLYING THE EQUITABLE DOCTRINE OF "LACHES" TO THE FEDERAL LAWSUIT
BROUGHT AFTER THE DISMISSAL OF THE STATE COURT ACTION.  WHETHER LACHES
BARS AN ACTION IN A GIVEN CASE DEPENDS UPON THE CIRCUMSTANCES OF THAT
CASE AND "IS A QUESTION PRIMARILY ADDRESSED TO THE DISCRETION OF THE
TRIAL COURT."  GARDNER V. PANAMA R. CO., 342 U.S. 29, 30.  TO APPLY IT
HERE WOULD BE AT VARIANCE WITH THE POLICIES OF CERTAINTY AND UNIFORMITY
UNDERLYING THIS STATUTE OF LIMITATIONS.  WE CONCLUDE THAT A UNIFORM
RULE TOLLING THE FEDERAL STATUTE FOR THE PERIOD OF THE PENDENCY OF THE
STATE COURT ACTION AND UNTIL THE STATE COURT DISMISSAL ORDER BECOMES
FINAL IS FAIR TO BOTH PLAINTIFF AND DEFENDANT, CARRIES OUT THE PURPOSES
OF THE FELA, AND BEST SERVES THE POLICIES OF UNIFORMITY AND CERTAINTY
UNDERLYING THE FEDERAL LIMITATION PROVISION. 

APPLYING THESE PRINCIPLES TO THE PRESENT CASE, SINCE PETITIONER
BROUGHT A TIMELY SUIT IN THE OHIO COURT, SERVED DEFENDANT WITH PROCESS,
AND, AFTER FINDING THE STATE ACTION DISMISSED FOR IMPROPER VENUE, FILED
HIS SUIT IN THE FEDERAL DISTRICT COURT ONLY EIGHT DAYS AFTER THE OHIO
COURT DISMISSED HIS ACTION, BEFORE HIS TIME FOR APPEALING FROM THE OHIO
ORDER HAD EXPIRED, HIS FEDERAL COURT ACTION WAS TIMELY.  THE COURT OF
APPEALS DECISION AFFIRMING THE DISTRICT COURT'S DISMISSAL OF
PETITIONER'S ACTION IS THEREFORE REVERSED, AND THIS CASE IS REMANDED
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  COUNSEL FOR PETITIONER STATED AT ORAL ARGUMENT THAT THE
CONSTITUTIONALITY OF THIS VENUE PROVISION FOR ACTIONS AGAINST RAILROADS
WAS BEING CHALLENGED IN OTHER LITIGATION.  NO CONSTITUTIONAL ISSUE WAS
RAISED IN THESE PROCEEDINGS, AND WE EXPRESS NO VIEWS UPON ANY SUCH
QUESTION. 

FN2  THE DISTINCTION BETWEEN SUBSTANTIVE AND PROCEDURAL STATUTES OF
LIMITATIONS APPEARS TO HAVE ARISEN IN CASES INVOLVING CONFLICTS OF
LAWS, SEE THE HARRISBURG, 119 U.S. 199; DAVIS V. MILLS, 194 U.S. 451;
RESTATEMENT OF THE LAW, CONFLICT OF LAWS SEC. 605.  WHILE THE
EMBODIMENT OF A LIMITATION PROVISION IN THE STATUTE CREATING THE RIGHT
WHICH IT MODIFIES MIGHT CONCEIVABLY INDICATE A LEGISLATIVE INTENT THAT
THE RIGHT AND LIMITATION BE APPLIED TOGETHER WHEN THE RIGHT IS SUED
UPON IN A FOREIGN FORUM, THE FACT THAT THE RIGHT AND LIMITATION ARE
WRITTEN INTO THE SAME STATUTE DOES NOT INDICATE A LEGISLATIVE INTENT AS
TO WHETHER OR WHEN THE STATUTE OF LIMITATIONS SHOULD BE TOLLED.  THUS
THE "SUBSTANTIVE"- "PROCEDURAL" DISTINCTION WOULD SEEM TO BE OF LITTLE
HELP IN DECIDING QUESTIONS OF EXTENDING THE LIMITATION PERIOD.  SEE
GLUS V. BROOKLYN EASTERN TERMINAL, 359 U.S. 231; DEVELOPMENTS IN THE
LAW - STATUTES OF LIMITATIONS, 63 HARV. L. REV. 1177, 1186-1188 (1950);
NOTE, 72 YALE L.J. 600, 604-605 (1963). 

FN3  SEE, E.G., ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500, 507. 
SEE ALSO GRIFFITH, THE VINDICATION OF A NATIONAL PUBLIC POLICY UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT, 18 LAW & CONTEMP.  PROB.  160
(1953). 

FN4  SEE THE ACT OF LIMITATION WITH A PROVISO, 32 HEN.  8, C. 2
(1540): 

"FORASMUCH AS THE TIME OF LIMITATION APPOINTED FOR SUING  ...
EXTEND, AND BE OF SO FAR AND LONG TIME PAST, THAT IT IS ABOVE THE
REMEMBRANCE OF ANY LIVING MAN, TRULY TO TRY AND KNOW THE PERFECT
CERTAINTY OF SUCH THINGS, AS HATH OR SHALL COME IN TRIAL  ...  TO THE
GREAT DANGER OF MENS CONSCIENCES THAT HAVE OR SHALL BE IMPANELLED IN
ANY JURY FOR THE TRIAL OF THE SAME  ...  ." 

FN5  SKELLY V. JEFFERSON STATE BANK, 9 OHIO ST. 606; OHIO SOUTHERN R.
CO. V. MOREY, 47 OHIO ST. 207, 24 N.E. 269. 

FN6  BECAUSE OF THE PROVISIONS OF OHIO REV. CODE SEC. 2307.37, VENUE
IN A SUIT FOR INJURIES TO PERSON OR PROPERTY AGAINST A RAILROAD IS
PROPER ONLY IN THE COUNTY WHERE THE CAUSE OF ACTION AROSE OR WHERE THE
PLAINTIFF RESIDES.  THUS VENUE IN AN ACTION BY A RESIDENT OF A FOREIGN
STATE AGAINST A RAILROAD ARISING OUT OF AN ACCIDENT OUTSIDE THE STATE
IS NOT PROPER ANYWHERE WITHIN OHIO.  RAILROADS CAN AGREE TO VENUE IN AN
OHIO STATE COURT IN SUCH A CASE, HOWEVER, AND EVIDENTLY THEY HAVE SO
AGREED, AS WE WERE TOLD ON ORAL ARGUMENT, FOR CASES CAN BE FOUND WHICH
INVOLVE ACCIDENTS OCCURRING, AND PLAINTIFFS WHO RESIDE, OUTSIDE THE
COUNTY WHERE SUIT WAS BROUGHT.  SEE, E.G., WOODWORTH V. NEW YORK
CENTRAL R. CO., 149 OHIO ST. 543, 80 N.E.2D 142. 

FN7  NUMEROUS CASES HOLD THAT WHEN DISMISSAL OF AN ACTION FOR
IMPROPER VENUE WOULD TERMINATE RIGHTS WITHOUT A HEARING ON THE MERITS
BECAUSE PLAINTIFF'S ACTION WOULD BE BARRED BY A STATUTE OF LIMITATIONS,
"THE INTEREST OF JUSTICE" REQUIRES THAT THE CAUSE BE TRANSFERRED.  SEE,
E.G., GOLD V. GRIFFITH, 190 F. SUPP. 482 (D.C.N.D. IND.); DENNIS V.
GALVANEK, 171 F. SUPP. 115 (D.C.M.D. PA.); SCHULTZ V. MCAFEE, 160 F.
SUPP. 210 (D.C.D. ME.). 

FN8  THIRTY-ONE STATES HAVE TRANSFER-OF-VENUE STATUTES WHICH APPEAR
TO BE RELEVANT: ALASKA STAT. SEC. 22.10.040; ARIZ. REV. STAT. 1956,
SEC. 12-404; DEERING'S CAL. CODE CIV.  PROC. ANN. 1959, SEC. 396; COLO.
RULES CIV. PROC., RULE 98(F); CONN. GEN. STAT. 1958, SEC. 52-32; FLA.
STAT. 1963, SEC. 53.17; IDAHO CODE 1947, SEC. 5-406; SMITH-HURD'S ILL.
ANN. STAT. 1956, C. 110, SEC. 10; BURNS' IND. ANN. STAT. 1933, SEC. 2
1401; KAN. CODE CIV. PROC. ANN. 1963, SEC. 60-611; MASS. GEN. LAWS ANN.
1959, C. 223, SEC. 15; MICH. STAT. ANN. 1962, SEC. 27A.1651; MINN.
STAT. ANN. 1947, SEC. 542.10; MISS.  CODE 1942, SEC. 1441; MONT. REV.
CODES 1947, SEC. 93-2906; NEV. REV. STAT. SEC. 13.050; N.H. REV. STAT.
ANN. 1955, SEC. 507:11; N.J. COURT RULES REV. 1:27D; MCKINNEY'S N.Y.
CIV. PRAC.  LAW & RULES 1963, SEC. 510; N.C. GEN. STAT. SEC. 1-25; N.D.
CENTURY CODE 1960, SEC. 28-04-07; ORE.  REV.STAT.  SEC. 14.110; S.C.
CODE 1962, SEC. 10-310; S.D. CODE SEC. 33.0306; VERNON'S TEX. RULES
CIV.  PROC., RULE 257; UTAH CODE ANN. 1953, SEC. 78-13-8; VA. CODE
1950, SEC. 8-157; WASH. REV. CODE SEC. 4.12.030; W.VA. CODE 1961, SEC.
5699; WIS. STAT. 1963, SEC. 261.03; WYO. STAT.  1957, CIV. PROC. CODE
SEC. 1-53. 

FN9  THIRTY-ONE STATES HAVE "SAVING" STATUTES WHICH APPEAR TO BE
RELEVANT:  ALASKA STAT.  SEC. 09.10.240 (ONE YEAR); ARK. STAT. 1947,
SEC. 37-222 (ONE YEAR); CONN. GEN. STAT. 1958, SEC. 52-592 (ONE YEAR);
DEL. CODE ANN. 1953, TIT. 10, SEC. 8117 (ONE YEAR); GA. CODE ANN.  SEC.
3-808 (SIX MONTHS); SMITH-HURD'S ILL. ANN. STAT. 1956, C. 83, SEC. 24A
(ONE YEAR); BURNS' IND. ANN. STAT. 1933, SEC. 2-608 (FIVE YEARS); IOWA
CODE ANN. 1950, SEC. 614.10 (SIX MONTHS); KAN. CODE CIV. PROC. ANN.
1963, SEC. 60-518 (SIX MONTHS); KY. REV. STAT.  SEC. 413.270 (90 DAYS);
SLOVENKO'S LA. CIV. CODE 1961, ART. 3555, R.S. 9:5801 (COMPLETE
TOLLING); ME. REV. STAT. 1954, C. 112, SEC. 99 (SIX MONTHS); MASS. GEN.
LAWS ANN. 1959, C. 260, SEC. 32 (ONE YEAR); MICH. STAT. ANN. 1962, SEC.
27A.5856 (90 DAYS); MISS.  CODE 1942, SEC. 744 (ONE YEAR); MONT. REV.
CODES 1947, SEC. 93-2708 (ONE YEAR); N.H. REV. STAT.  ANN. 1955, SEC.
508.10 (ONE YEAR); N.M. STAT. 1953, SEC. 23-1-14 (SIX MONTHS);
MCKINNEY'S N.Y.  CIV. PRAC.  LAW & RULES 1963, SEC. 205 (SIX MONTHS);
N.C. GEN. STAT. SEC. 1-25 (ONE YEAR); OHIO REV. CODE 1954, SEC. 2305.19
(ONE YEAR); OKLA. STAT. ANN., TIT. 12, SEC. 100 (ONE YEAR); ORE.  REV. 
STAT. SEC. 12.220 (ONE YEAR); R.I. GEN. LAWS SEC. 9-1-22 (ONE YEAR);
TENN. CODE ANN. 1955, SEC. 28-106 (ONE YEAR); VERNON'S TEX. CIV. STAT.
ANN., TIT. 91, ART. 5539A (60 DAYS); UTAH CODE ANN. 1953, SEC. 78-12-40
(ONE YEAR); VT. STAT. ANN. 1958, TIT.  12, SEC. 558 (ONE YEAR); VA.
CODE 1950, SEC. 8-34 (ONE YEAR); W.VA. CODE 1961, SEC. 5410 (ONE YEAR);
WYO. STAT. 1957, SEC. 1-26 (ONE YEAR). 

FN10  SEE NOTES 8, 9, SUPRA, NOTE 12, INFRA. 

FN11  AN ADDITIONAL YEAR IS ALLOWED IN 20 STATES, SIX MONTHS IN SIX
STATES, 90 DAYS IN TWO STATES, 60 DAYS IN ONE STATE, FIVE YEARS IN ONE
STATE, AND ONE STATE IMPOSES NO DEFINITE LIMITATION UPON THE ADDITIONAL
TIME ALLOWED.  SEE NOTE 9, SUPRA. 

FN12  NINETEEN STATES APPEAR TO HAVE NO APPLICABLE SAVING STATUTE. 
ALABAMA, HAWAII, MARYLAND, MISSOURI, NEBRASKA, AND PENNSYLVANIA APPEAR
TO HAVE NEITHER A SAVING NOR A TRANSFER STATUTE. 

FN13  THIS WOULD BE TRUE IN THE 19 STATES WHICH LACK TRANSFER
STATUTES.  OF THOSE 19, 13 HAVE SAVING STATUTES AND SIX DO NOT.  SEE
NOTES 8, 9, AND 11, SUPRA. 

FN14  CF. CLAYTON ACT, AS AMENDED, SEC. 5(B), 69 STAT. 283, 15 U.S.C.
SEC. 16(B) (1958 ED.); ELECTRIC THEATER CO. V. TWENTIETH CENTURY-FOX
FILM CORP., 113 F. SUPP. 937, 944 (D.C.W.D. MO.); SUBVERSIVE ACTIVITIES
CONTROL ACT OF 1950, SEC. 14, 64 STAT. 1001, 50 U.S.C.  SEC. 793(B)
(1958 ED.). 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 

THE FEDERAL QUESTION PRESENTED IS WHETHER THIS ACTION, TIMELY STARTED
IN THE STATE COURT BUT NOT TIMELY STARTED IF THE FILING DATE IN THE
FEDERAL COURT GOVERNS, WAS "COMMENCED WITHIN THREE YEARS FROM THE DAY
THE CAUSE OF ACTION ACCRUED" WITHIN THE MEANING OF 45 U.S.C.  SEC. 56. 
I THINK IT WAS SO "COMMENCED," AS MUCH AS WAS THE ACTION IN HERB V.
PITCAIRN, 325 U.S. 77. 

IN REACHING THIS CONCLUSION I DO NOT FIND IT NECESSARY TO RELY ON THE
FACT THAT PETITIONER FILED IN THE FEDERAL COURT "BEFORE HIS TIME FOR
APPEALING FROM THE OHIO ORDER HAD EXPIRED," ANTE, THIS PAGE.  INSTEAD I
REST SIMPLY ON THE GROUND THAT "WHEN PROCESS HAS BEEN ADEQUATE TO BRING
IN THE PARTIES AND TO START THE CASE ON A COURSE OF JUDICIAL HANDLING
WHICH MAY LEAD TO FINAL JUDGMENT WITHOUT ISSUANCE OF NEW INITIAL
PROCESS, IT IS ENOUGH TO COMMENCE THE ACTION WITHIN THE FEDERAL
STATUTE."  325 U.S., AT 79.  AND SEE HERB V. PITCAIRN, 324 U.S. 117,
132-133 (DISSENTING OPINION OF BLACK, J.), SETTING FORTH THE
REQUIREMENTS FOR COMMENCING AN FELA ACTION WITHIN THE MEANING OF 45
U.S.C. SEC. 56:  (1) A BONA FIDE EFFORT TO PROSECUTE THE CLAIM, (2) IN
A COURT HAVING JURISDICTION, (3) RESULTING IN NOTICE TO THE DEFENDANT. 

IF AFTER DISMISSAL THE PLAINTIFF DELAYS INEXCUSABLY IN REFILING HIS
SUIT IN THE PROPER COURT AND THE DEFENDANT IS PREJUDICED BY THE DELAY,
THE ACTION WILL OF COURSE BE BARRED BY LACHES.  GARDNER V. PANAMA R.
CO., 342 U.S. 29, 30-31.  THAT FAMILIAR EQUITABLE DOCTRINE PROVIDES THE
DEFENDANT WITH ADEQUATE PROTECTION AGAINST DELAY.  THE COURT REJECTS
THIS ESTABLISHED DOCTRINE, HOWEVER, CREATING A NEW STATUTE OF
LIMITATIONS OF ITS OWN WHICH MAKES THE TIMELINESS OF A FEDERAL CAUSE OF
ACTION DEPEND ON STATE TIME REQUIREMENTS WHICH WERE ADOPTED FOR OTHER,
UNRELATED PURPOSES AND WHICH VARY FROM STATE TO STATE.  THE LONG
ESTABLISHED FEDERAL RULE OF LACHES, IN CONTRAST, IS UNCOMPLICATED,
UNIFORM, AND DIRECTLY RESPONSIVE TO THE PROBLEM.  LACHES, OF COURSE,
HAS NO APPLICATION IN THE INSTANT CASE, AS PETITIONER FILED IN THE
FEDERAL COURT ONLY EIGHT DAYS AFTER HIS STATE COURT ACTION HAD BEEN
DISMISSED. 
..END :






NATIONAL LABOR RELATIONS BOARD V. METROPOLITAN LIFE INSURANCE CO. 380
U.S. 438 


NO. 98.  ARGUED JANUARY 21, 1965.  - DECIDED APRIL 5, 1965.  - 327 F.2D
906, VACATED AND REMANDED. 


A UNION OVER THE PROTEST OF RESPONDENT COMPANY WAS CERTIFIED BY THE
NATIONAL LABOR RELATIONS BOARD (NLRB) UNDER SEC. 9(C) OF THE NATIONAL
LABOR RELATIONS ACT AS THE BARGAINING REPRESENTATIVE OF ALL DEBIT
INSURANCE AGENTS AT RESPONDENT'S DISTRICT OFFICE IN WOONSOCKET, R.I.
FOLLOWING RESPONDENT'S REFUSAL TO BARGAIN WITH THE CERTIFIED UNIT, THE
UNION FILED UNFAIR LABOR PRACTICE CHARGES WITH THE NLRB, WHICH,
ADHERING TO ITS DETERMINATION, DIRECTED RESPONDENT TO BARGAIN WITH THE
UNION.  THE COURT OF APPEALS REFUSED TO ENFORCE THE NLRB ORDER, HAVING
CONCLUDED THAT, CONTRARY TO SEC. 9(C)(5), THE NLRB HAD REGARDED AS
CONTROLLING THE EXTENT TO WHICH THE EMPLOYEES HAD ORGANIZED.  THIS
CONCLUSION WAS BASED ON THE NLRB'S FAILURE TO ARTICULATE REASONS FOR
THE UNIT DETERMINATION IN THIS CASE; ITS APPARENTLY INCONSISTENT
DETERMINATIONS OF APPROPRIATE UNITS OF RESPONDENT'S EMPLOYEES IN OTHER
AREAS; ITS FAILURE TO EVALUATE THE FACTOR THERE OF THE EXTENT OF UNION
ORGANIZATION; AND ITS CONSISTENT CERTIFICATION OF THE UNIT REQUESTED BY
THE UNION.  HELD: 

1.  UNDER SEC. 9(C)(5) THE EXTENT OF UNION ORGANIZATION MAY BE
CONSIDERED AS ONE FACTOR, BUT NOT AS THE CONTROLLING FACTOR, IN
DETERMINING THE APPROPRIATE BARGAINING UNIT.  PP. 441-442. 

2.  THE CONSIDERATIONS RELIED UPON BY THE COURT OF APPEALS DID NOT
COMPEL THE CONCLUSION THAT THE NLRB HAD VIOLATED SEC. 9(C)(5).  P.
442. 

3.  THE NLRB HAS, HOWEVER, FAILED TO ARTICULATE REASONS FOR DECISION
IN AND DISTINCTIONS AMONG THIS AND OTHER CASES IN THIS AREA.  PP. 442
443. 

4.  THE INTEGRITY OF THE ADMINISTRATIVE PROCESS REQUIRES THAT COURTS
MAY NOT ACCEPT APPELLATE COUNSEL'S POST HOC RATIONALIZATIONS FOR AGENCY
ACTION.  PP. 443-444. 

5.  BECAUSE OF THE FAILURE OF THE NLRB TO STATE THE BASIS OF ITS
DECISION IN THIS AND OTHER CASES IN THIS AREA, ITS ACTION CANNOT BE
PROPERLY REVIEWED AND THUS THE JUDGMENT OF THE COURT OF APPEALS MUST BE
VACATED AND THE CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND
IT TO THE NLRB.  P. 444. 

NATIONAL LABOR RELATIONS BOARD V. METROPOLITAN LIFE INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

ON PETITION OF INSURANCE WORKERS INTERNATIONAL UNION, AFL-CIO, AND
OVER THE PROTEST OF RESPONDENT, METROPOLITAN LIFE INSURANCE COMPANY, AS
TO THE APPROPRIATENESS OF THE BARGAINING UNIT, THE NATIONAL LABOR
RELATIONS BOARD, IN A PROCEEDING UNDER SEC. 9(C) OF THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 453, AS AMENDED, 29 U.S.C. SEC. 159(C) (1958
ED.), CERTIFIED THE UNION AS THE BARGAINING REPRESENTATIVE OF ALL DEBIT
INSURANCE AGENTS, INCLUDING ALL CANVASSING REGULAR AND OFFICE ACCOUNT
AGENTS, AT RESPONDENT'S DISTRICT OFFICE IN WOONSOCKET, RHODE ISLAND. 
(FN1)  RESPONDENT DELIBERATELY REFUSED TO BARGAIN WITH THE UNION IN
ORDER TO CHALLENGE THE APPROPRIATENESS OF THE EMPLOYEE UNIT CERTIFIED
BY THE BOARD.  SEE PITTSBURGH GLASS CO. V. LABOR BOARD, 313 U.S. 146. 
THE UNION THEREUPON FILED UNFAIR LABOR PRACTICE CHARGES WITH THE
BOARD.  THE BOARD, ADHERING TO ITS PRIOR UNIT DETERMINATION, HELD THAT
RESPONDENT VIOLATED SECS. 8(A)(1) AND (5) OF THE LABOR RELATIONS ACT,
49 STAT. 452, AS AMENDED, 29 U.S.C. SECS. 158(A)(1) AND (5) (1958 ED.),
AND DIRECTED RESPONDENT TO BARGAIN WITH THE UNION.  142 N.L.R.B. 491. 
THE COURT OF APPEALS FOR THE FIRST CIRCUIT REFUSED TO ENFORCE THE ORDER
ON THE GROUNDS THAT IN LIGHT OF THE "BOARD'S FAILURE TO ARTICULATE
SPECIFIC REASONS FOR ITS UNIT DETERMINATION," 327 F.2D 906, 909, THE
BOARD'S APPARENTLY INCONSISTENT DETERMINATIONS OF APPROPRIATE UNITS OF
RESPONDENT'S EMPLOYEES IN OTHER CITIES OR REGIONS, SEE 138 N.L.R.B. 565
(DELAWARE); 138 N.L.R.B. 734 (SIOUX CITY); 144 N.L.R.B. 149 (CHICAGO);
138 N.L.R.B. 512 (CLEVELAND), (FN2) ITS FAILURE TO DISCUSS IN THESE
CASES WHAT WEIGHT, IF ANY, IT GAVE TO THE FACTOR OF THE EXTENT OF UNION
ORGANIZATION, AND THE FACT THAT IN THESE CASES THE BOARD CONSISTENTLY
CERTIFIED THE UNIT REQUESTED BY THE UNION, THE COURT OF APPEALS COULD
"ONLY CONCLUDE THAT THE  ... BOARD  ...  HAS INDEED  ...  REGARDED THE
EXTENT OF UNION ORGANIZATION AS CONTROLLING IN VIOLATION OF SEC.
9(C)(5) OF THE ACT."  327 F.2D, AT 911.  WE GRANTED CERTIORARI BECAUSE
OF AN APPARENT CONFLICT BETWEEN THIS DECISION AND THE DECISIONS OF THE
COURT OF APPEALS FOR THE THIRD CIRCUIT IN METROPOLITAN LIFE INS.  CO.
V. LABOR BOARD, 328 F.2D 820, PETITION FOR CERTIORARI PENDING, NO. 56
THIS TERM, WHICH SUSTAINED THE BOARD'S DETERMINATION IN THE DELAWARE
CASE, 138 N.L.R.B. 565, AND THE COURT OF APPEALS FOR THE SIXTH CIRCUIT,
METROPOLITAN LIFE INS. CO. V. LABOR BOARD, 330 F.2D 62, PETITION FOR
CERTIORARI PENDING, NO. 229 THIS TERM, WHICH SUSTAINED THE BOARD'S
DETERMINATION IN THE CLEVELAND CASE, 138 N.L.R.B. 512.  SEE ALSO LABOR
BOARD V. WESTERN & SOUTHERN LIFE INS. CO., 328 F.2D 891 (C.A. 3D CIR.),
PETITION FOR CERTIORARI PENDING, NO. 91 THIS TERM. 

AMENDED, 29 U.S.C.  SEC. 159(B) (1958 ED.)  PROVIDES: 

"THE BOARD SHALL DECIDE IN EACH CASE WHETHER, IN ORDER TO ASSURE TO
EMPLOYEES THE FULLEST FREEDOM IN EXERCISING THE RIGHTS GUARANTEED BY
THIS SUBCHAPTER, THE UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE
BARGAINING SHALL BE THE EMPLOYER UNIT, CRAFT UNIT, PLANT UNIT, OR
SUBDIVISION THEREOF ... ." 

THIS BROAD DELEGATION OF AUTHORITY, SEE PITTSBURGH GLASS CO. V. LABOR
BOARD, SUPRA, WAS LIMITED IN 1947 BY THE ENACTMENT OF SEC. 9(C)(5) OF
THE ACT, 61 STAT. 144, 29 U.S.C. SEC.  159(C)(5) (1958 ED.), WHICH
PROVIDES THAT "IN DETERMINING WHETHER A UNIT IS APPROPRIATE FOR THE
PURPOSES SPECIFIED IN SUBSECTION (B) OF THIS SECTION THE EXTENT TO
WHICH THE EMPLOYEES HAVE ORGANIZED SHALL NOT BE CONTROLLING." 

ALTHOUGH IT IS CLEAR THAT IN PASSING THIS AMENDMENT CONGRESS INTENDED
TO OVERRULE BOARD DECISIONS WHERE THE UNIT DETERMINED COULD ONLY BE
SUPPORTED ON THE BASIS OF THE EXTENT OF ORGANIZATION, BOTH THE LANGUAGE
AND LEGISLATIVE HISTORY (FN3) OF SEC. 9(C)(5) DEMONSTRATE THAT THE
PROVISION WAS NOT INTENDED TO PROHIBIT THE BOARD FROM CONSIDERING THE
EXTENT OF ORGANIZATION AS ONE FACTOR, THOUGH NOT THE CONTROLLING
FACTOR, IN ITS UNIT DETERMINATION.  (FN4) 

THE COURT OF APPEALS HERE PROPERLY RECOGNIZED THIS EFFECT OF SEC.
9(C)(5), BUT HELD, IN LIGHT OF THE UNARTICULATED BASES OF DECISION, AND
WHAT APPEARED TO IT TO BE INCONSISTENT DETERMINATIONS APPROVING UNITS
REQUESTED BY THE UNION, THAT THE ONLY CONCLUSION THAT IT COULD REACH
WAS THAT THE BOARD HAS MADE THE EXTENT OF ORGANIZATION THE CONTROLLING
FACTOR, IN VIOLATION OF THE CONGRESSIONAL MANDATE.  WE AGREE WITH THE
COURT OF APPEALS THAT THE ENFORCING COURT SHOULD NOT OVERLOOK OR IGNORE
AN EVASION OF THE SEC. 9(C)(5) COMMAND.  WE FURTHER AGREE THAT IN
DETERMINING WHETHER OR NOT THERE HAS BEEN SUCH AN EVASION, THE RESULTS
IN OTHER RECENT DECISIONS OF THE BOARD ARE RELEVANT.  WE CANNOT,
HOWEVER, AGREE THAT THE ONLY POSSIBLE CONCLUSION HERE IS THAT THE BOARD
HAS VIOLATED SEC. 9(C)(5).  CF. METROPOLITAN LIFE INS. CO. V. LABOR
BOARD (CLEVELAND), SUPRA; METROPOLITAN LIFE INS. CO. V. LABOR BOARD
(DELAWARE), SUPRA. 

ON THE OTHER HAND, DUE TO THE BOARD'S LACK OF ARTICULATED REASONS FOR
THE DECISIONS IN AND DISTINCTIONS AMONG THESE CASES, (FN5) THE BOARD'S
ACTION HERE CANNOT BE PROPERLY REVIEWED.  WHEN THE BOARD SO EXERCISES
THE DISCRETION GIVEN TO IT BY CONGRESS, IT MUST "DISCLOSE THE BASIS OF
ITS ORDER" AND "GIVE CLEAR INDICATION THAT IT HAS EXERCISED THE
DISCRETION WITH WHICH CONGRESS HAS EMPOWERED IT."  (FN6)  PHELPS DODGE
CORP. V. LABOR BOARD, 313 U.S. 177, 197.  SEE BURLINGTON TRUCK LINES V.
UNITED STATES, 371 U.S. 156, 167-169; INTERSTATE COMMERCE COMM'N V. J-T
TRANSPORT CO., 368 U.S. 81, 93.  ALTHOUGH BOARD COUNSEL IN HIS BRIEF
AND ARGUMENT BEFORE THIS COURT HAS RATIONALIZED THE DIFFERENT UNIT
DETERMINATIONS IN THE VARIANT FACTUAL SITUATIONS OF THESE CASES ON
CRITERIA OTHER THAN A CONTROLLING EFFECT BEING GIVEN TO THE EXTENT OF
ORGANIZATION, THE INTEGRITY OF THE ADMINISTRATIVE PROCESS REQUIRES THAT
"COURTS MAY NOT ACCEPT APPELLATE COUNSEL'S POST HOC RATIONALIZATIONS
FOR AGENCY ACTION  ...  ."  BURLINGTON TRUCK LINES V. UNITED STATES,
SUPRA, AT 168; SEE SECURITIES & EXCHANGE COMM'N V. CHENERY CORP., 332
U.S. 194, 196.  FOR REVIEWING COURTS TO SUBSTITUTE COUNSEL'S RATIONALE
OR THEIR DISCRETION FOR THAT OF THE BOARD IS INCOMPATIBLE WITH THE
ORDERLY FUNCTION OF THE PROCESS OF JUDICIAL REVIEW.  SUCH ACTION WOULD
NOT VINDICATE, BUT WOULD DEPRECATE THE ADMINISTRATIVE PROCESS FOR IT
WOULD "PROPEL THE COURT INTO THE DOMAIN WHICH CONGRESS HAS SET ASIDE
EXCLUSIVELY FOR THE ADMINISTRATIVE AGENCY."  SECURITIES & EXCHANGE
COMM'N V. CHENERY CORP., SUPRA, AT 196. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE
CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND IT TO THE BOARD
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1 THE DECISION AND DIRECTION OF ELECTION ISSUED BY THE BOARD ON
OCTOBER 24, 1962, IS UNREPORTED. 

FN2  IN THE DELAWARE CASE THE BOARD CERTIFIED AS A UNIT TWO OF
RESPONDENT'S THREE DISTRICT OFFICES IN THE STATE; IN THE SIOUX CITY
CASE THE UNIT CERTIFIED WAS RESPONDENT'S SINGLE DISTRICT OFFICE IN
SIOUX CITY, IOWA, TOGETHER WITH TWO DETACHED OFFICES UNDER ITS
ADMINISTRATIVE CONTROL IN FARGO, NORTH DAKOTA, AND SIOUX FALLS, SOUTH
DAKOTA, 284 AND 120 MILES DISTANT, RESPECTIVELY, FROM SIOUX CITY; IN
THE CHICAGO CASE THE UNIT CERTIFIED WAS THAT OF ALL OF THE DISTRICT
OFFICES WITHIN THE CITY LIMITS OF CHICAGO, ALTHOUGH SOME OF THE CITY
OFFICES HAD TERRITORIES EXTENDING INTO THE SUBURBS AND SOME OF THE
SUBURBAN OFFICES' TERRITORIES EXTENDED INTO THE CITY; IN THE CLEVELAND
CASE THE CERTIFIED UNIT CONSISTED OF RESPONDENT'S SIX OFFICES IN THE
CITY AS WELL AS THREE OFFICES IN THE SUBURBS; FINALLY, IN THE INSTANT
CASE THE UNIT CERTIFIED WAS RESPONDENT'S SINGLE DISTRICT OFFICE IN
WOONSOCKET, RHODE ISLAND, OUT OF THE EIGHT OFFICES IN THE STATE AND THE
75 OFFICES IN RESPONDENT'S "NEW ENGLAND TERRITORY."  IN ADDITION TO THE
INSTANT CASE AND THE SIOUX CITY CASE, THE BOARD HAS CERTIFIED SINGLE
DISTRICT OFFICES IN WESTERN & SOUTHERN LIFE INS. CO., 138 N.L.R.B. 538;
METROPOLITAN LIFE INS. CO. (MERIDEN AND NEW LONDON), 147 N.L.R.B. 69;
METROPOLITAN LIFE INS. CO. (HOLYOKE), 147 N.L.R.B. 688; METROPOLITAN
LIFE INS. CO. (CHICAGO HEIGHTS), 148 N.L.R.B. NO. 145.  SEE ALSO
METROPOLITAN LIFE INS. CO. (DETROIT), 146 N.L.R.B. 1577; METROPOLITAN
LIFE INS. CO. (TOLEDO), 146 N.L.R.B. 967; EQUITABLE LIFE INS. CO., 138
N.L.R.B. 529. 

FN3  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS., 37-38; H.R. CONF.
REP. NO. 510, 80TH CONG., 1ST SESS., 48; 93 CONG. REC. 6444, 6860. 

FN4  SEE NATIONAL LABOR RELATIONS BOARD, TWENTY-EIGHTH ANNUAL REPORT
51 (1963), WHICH PROPERLY STATES THIS STATUTORY TEST: "ALTHOUGH EXTENT
OF ORGANIZATION MAY BE A FACTOR EVALUATED, UNDER SECTION 9(C)(5) IT
CANNOT BE GIVEN CONTROLLING WEIGHT." 

FN5  THE BOARD'S ENTIRE BASIS OF DECISION ON THIS ISSUE IN THIS CASE
WAS SET FORTH IN THE FOLLOWING FOOTNOTE IN ITS UNIT DETERMINATION
DECISION: 

"THE EMPLOYER HAS EIGHT DISTRICT OFFICES AND TWO DETACHED OFFICES IN
RHODE ISLAND, AND HAS ONLY ONE DISTRICT OFFICE IN WOONSOCKET.  THE
NEAREST DISTRICT OFFICE IS LOCATED 12 MILES AWAY IN PAWTUCKET.  IN THE
PRIOR PROCEEDING IN CASE NO. 4-RC-4865, BASED ON THE SAME RECORD
INCORPORATED BY REFERENCE HEREIN, WE FOUND THAT EACH OF EMPLOYER'S
INDIVIDUAL DISTRICT OFFICES WAS IN EFFECT A SEPARATE ADMINISTRATIVE
ENTITY THROUGH WHICH THE EMPLOYER CONDUCTED ITS BUSINESS OPERATIONS,
AND THEREFORE WAS INHERENTLY APPROPRIATE FOR PURPOSES OF COLLECTIVE
BARGAINING.  SEE METROPOLITAN LIFE INSURANCE COMPANY, 138 NLRB  ...
565.  APPLYING THE TESTS SET FORTH THEREIN, WE FIND THAT, SINCE THERE
IS NO RECENT HISTORY OF COLLECTIVE BARGAINING, NO UNION SEEKING A
LARGER UNIT, AND THE DISTRICT OFFICE SOUGHT IS LOCATED IN A SEPARATE
AND DISTINCT GEOGRAPHICAL AREA, THE EMPLOYEES LOCATED AT THE WOONSOCKET
DISTRICT OFFICE CONSTITUTE AN APPROPRIATE UNIT.  SEE ALSO METROPOLITAN
LIFE INSURANCE COMPANY,  ...  138 NLRB  ...  734." 

THE CASES CITED ARE THE BOARD'S DECISIONS IN THE DELAWARE AND SIOUX
CITY CASES DISCUSSED SUPRA. THEY DO NOT APPEAR, BECAUSE OF THEIR
VARIANT FACTUAL CIRCUMSTANCES, TO BE DIRECT AUTHORITY FOR DECISION IN
THIS CASE.  MOREOVER, THE BOARD MADE NO ATTEMPT TO DISTINGUISH OTHER
CASES, PARTICULARLY THE CHICAGO AND CLEVELAND CASES DISCUSSED SUPRA, IN
WHICH IT CERTIFIED DIFFERENT TYPES OF UNITS.  THE UNFAIR LABOR PRACTICE
PROCEEDING ADDED NOTHING TO THE ANALYSIS, AS THE TRIAL EXAMINER DID NOT
REVIEW THE ISSUE, AS HE FELT "BOUND BY THE BOARD'S RULING IN THE
REPRESENTATION PROCEEDING," 142 N.L.R.B., AT 492, AND THE BOARD
AFFIRMED THE TRIAL EXAMINER'S RULING WITHOUT DISCUSSION, ID., AT 491. 

FN6  OF COURSE, THE BOARD MAY ARTICULATE THE BASIS OF ITS ORDER BY
REFERENCE TO OTHER DECISIONS OR ITS GENERAL POLICIES LAID DOWN IN ITS
RULES AND ITS ANNUAL REPORTS, REFLECTING ITS "CUMULATIVE EXPERIENCE,"
LABOR BOARD V. SEVEN-UP CO., 344 U.S. 344, 349, SO LONG AS THE BASIS OF
THE BOARD'S ACTION, IN WHATEVER MANNER THE BOARD CHOOSES TO FORMULATE
IT, MEETS THE CRITERIA FOR JUDICIAL REVIEW.  CF. SWAYNE & HOYT, LTD. V.
UNITED STATES, 300 U.S. 297, 299, 304; RADIO & TV LOCAL 1264 V.
BROADCAST SERV., ANTE, P. 255. 

MR. JUSTICE DOUGLAS, DISSENTING. 

A READING OF THE COURT'S OPINION REVEALS THE FALLACIES ON WHICH THE
BOARD PROCEEDED.  THE EMPLOYER SOUGHT REVIEW OF THE BOARD'S ORDER,
ASKING THAT IT BE SET ASIDE.  CONCEDEDLY IT SHOULD BE.  BUT WE NEED NOT
ACT AS AMICUS FOR THE BOARD, TELLING IT WHAT TO DO.  THE BOARD IS
POWERFUL AND RESOURCEFUL AND CAN START OVER AGAIN SHOULD IT WISH.  HOW
STALE THIS RECORD MAY BE WE DO NOT KNOW.  NEITHER OF THE PARTIES ASKS
FOR A REMAND.  THEY ARE WILLING TO STAND OR FALL ON THE PRESENT RECORD;
AND WE SHOULD RESOLVE THE CONTROVERSY IN THAT POSTURE. 
..END :




JENKINS V. UNITED STATES 380 U.S. 445 


NO. 761.  ARGUED APRIL 1, 1965.  - DECIDED APRIL 5, 1965.  - 117 U.S.
APP. D.C. 346, 330 F.2D 220, REVERSED AND REMANDED. 


AFTER SOME DELIBERATION ON A TWO-COUNT INDICTMENT, THE JURY SENT A
NOTE TO THE TRIAL JUDGE ADVISING THAT IT WAS UNABLE TO ARRIVE AT A
VERDICT "ON BOTH COUNTS BECAUSE OF INSUFFICIENT EVIDENCE."  IN HIS
RESPONSE THE JUDGE STATED THAT THE JURY HAD TO REACH A DECISION. 
THEREAFTER THE PETITIONER WAS FOUND GUILTY ON ONE COUNT.  HELD:  IN ITS
CONTEXT AND UNDER ALL THE CIRCUMSTANCES OF THIS CASE, THE JUDGE'S
STATEMENT HAD A COERCIVE EFFECT ON THE JURY AND THEREFORE THE
CONVICTION MUST BE REVERSED. 

JENKINS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

PETITIONER WAS CHARGED IN A TWO-COUNT INDICTMENT IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WITH ROBBING A HIGH'S DAIRY
PRODUCTS STORE ON DECEMBER 27, 1962 (COUNT 1), AND WITH ASSAULT WITH
INTENT TO ROB UPON THE PROPRIETRESS OF A GROCERY STORE ON JANUARY 24,
1963 (COUNT 2), IN VIOLATION OF SECS. 22-2901 AND 22-501, RESPECTIVELY,
OF THE DISTRICT OF COLUMBIA CODE.  FOLLOWING A TRIAL BY JURY, HE WAS
FOUND GUILTY ON COUNT 1 AND NOT GUILTY ON COUNT 2.  HE WAS SENTENCED TO
IMPRISONMENT FOR FROM 3 TO 10 YEARS.  A DIVIDED COURT OF APPEALS
AFFIRMED THE CONVICTION, 117 U.S. APP. D.C. 346, 330 F.2D 220.  A
PETITION FOR REHEARING EN BANC WAS DENIED, FOUR JUDGES DISSENTING. 

SLIGHTLY MORE THAN TWO HOURS AFTER THE JURY RETIRED TO DELIBERATE,
THE JURY SENT A NOTE TO THE TRIAL JUDGE ADVISING THAT IT HAD BEEN
UNABLE TO AGREE UPON A VERDICT "ON BOTH COUNTS BECAUSE OF INSUFFICIENT
EVIDENCE."  THE JUDGE THEREUPON RECALLED THE JURY TO THE COURTROOM AND
IN THE COURSE OF HIS RESPONSE STATED THAT "YOU HAVE GOT TO REACH A
DECISION IN THIS CASE."  WE GRANTED CERTIORARI, 379 U.S. 944, TO
CONSIDER WHETHER IN ITS CONTEXT AND UNDER ALL THE CIRCUMSTANCES OF THIS
CASE THE STATEMENT WAS COERCIVE.  THE SOLICITOR GENERAL IN HIS BRIEF IN
THIS COURT STATED: 

"OF COURSE, IF THIS COURT SHOULD CONCLUDE THAT THE JUDGE'S STATEMENT
HAD THE COERCIVE EFFECT ATTRIBUTED TO IT, THE JUDGMENT SHOULD BE
REVERSED AND THE CAUSE REMANDED FOR A NEW TRIAL; THE PRINCIPLE THAT
JURORS MAY NOT BE COERCED INTO SURRENDERING VIEWS CONSCIENTIOUSLY HELD
IS SO CLEAR AS TO REQUIRE NO ELABORATION." 

UPON REVIEW OF THE RECORD, WE CONCLUDE THAT IN ITS CONTEXT AND UNDER
ALL THE CIRCUMSTANCES THE JUDGE'S STATEMENT HAD THE COERCIVE EFFECT
ATTRIBUTED TO IT.  ACCORDINGLY THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CAUSE REMANDED FOR A NEW TRIAL.  CF. BRASFIELD V.
UNITED STATES, 272 U.S. 448, 450; BURTON V. UNITED STATES, 196 U.S.
283, 307-308; UNITED STATES V. ROGERS, 289 F.2D 433, 435 (C.A. 4TH
CIR.)  IT IS SO ORDERED. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT. 
..END :
















ABERNATHY V. ALABAMA 380 U.S. 447 


NO. 9.  ARGUED OCTOBER 12-13, 1964.  - DECIDED APRIL 5, 1965.  - 42 ALA.
APP. 149, 155 SO. 2D 586, REVERSED. 


ABERNATHY ET AL. V. ALABAMA. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

PER CURIAM. 

THE JUDGMENTS ARE REVERSED.  BOYNTON V. VIRGINIA, 364 U.S. 454. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :















CHICAGO & NORTH WESTERN RAILWAY CO. V. CHICAGO, MILWAUKEE, ST. PAUL &
PACIFIC RAILROAD CO. 380 U.S. 448 


NO. 21.  ARGUED NOVEMBER 17, 1964.  - DECIDED APRIL 5, 1965.  - 214 F.
SUPP. 244, REVERSED. 


CHICAGO & NORTH WESTERN RAILWAY CO. V. CHICAGO, MILWAUKEE, ST. PAUL &
PACIFIC RAILROAD CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF WISCONSIN. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  TEXAS & P.R. CO. V. GULF, C.&S.F.R. CO.,
270 U.S. 266, 278. 
..END :














MCKINNIE V. TENNESSEE 380 U.S. 449 


NO. 148.  ARGUED MARCH 8, 1965.  - DECIDED APRIL 5, 1965.  - TENN. - ,
379 S.W.2D 214, REVERSED. 


MC KINNIE ET AL. V. TENNESSEE. 

CERTIORARI TO THE SUPREME COURT OF TENNESSEE. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  HAMM V. CITY OF ROCK HILL AND LUPPER V.
ARKANSAS, 379 U.S. 306. 

MR. JUSTICE STEWART WOULD VACATE THE JUDGMENT AND REMAND THE CASE TO
THE SUPREME COURT OF TENNESSEE FOR RECONSIDERATION IN THE LIGHT OF
SUPERVENING FEDERAL LEGISLATION, IN ACCORDANCE WITH THE VIEWS EXPRESSED
IN HIS DISSENTING OPINION IN HAMM V. CITY OF ROCK HILL, 379 U.S. 306,
326. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE WHITE WOULD
AFFIRM THE JUDGMENT OF THE SUPREME COURT OF TENNESSEE FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN HAMM V. CITY OF ROCK HILL, 379
U.S. 306, 318, 322, 327. 
..END :






U.S.A.C. TRANSPORT, INC. V. UNITED STATES 380 U.S. 450 


NO. 856.  DECIDED APRIL 5, 1965.  - 235 F. SUPP. 689, AFFIRMED. 


U.S.A.C. TRANSPORT, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















TEXTILE WORKERS UNION OF AMERICA V. DARLINGTON MANUFACTURING CO. 380
U.S. 263 


NO. 37.  ARGUED DECEMBER 9-10, 1964.  - DECIDED MARCH 29, 1965.* - 325
F.2D 682, JUDGMENTS VACATED AND REMANDED. 

*TOGETHER WITH NO. 41, NATIONAL LABOR RELATIONS BOARD V. DARLINGTON
MANUFACTURING CO. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


A MAJORITY OF THE STOCK OF DARLINGTON MANUFACTURING COMPANY, A TEXTILE
MILL, WAS OWNED BY DEERING MILLIKEN, A MARKETING CORPORATION, AND THE
NATIONAL LABOR RELATIONS BOARD FOUND THAT THE LATTER COMPANY WAS IN
TURN CONTROLLED BY ROGER MILLIKEN, DARLINGTON'S PRESIDENT, AND MEMBERS
OF HIS FAMILY.   AN ORGANIZATIONAL CAMPAIGN BY PETITIONER UNION AT
DARLINGTON, ALTHOUGH STRONGLY RESISTED BY THE COMPANY, INCLUDING
THREATS TO CLOSE THE MILL, WAS SUCCESSFUL.  SHORTLY THEREAFTER THE
COMPANY WAS LIQUIDATED, THE PLANT CLOSED AND THE EQUIPMENT SOLD.  THE
NATIONAL LABOR RELATIONS BOARD FOUND THAT THE CLOSING WAS DUE TO ROGER
MILLIKEN'S ANTIUNION ANIMUS, A VIOLATION OF SEC. 8(A)(3) OF THE
NATIONAL LABOR RELATIONS ACT; THAT DARLINGTON WAS PART OF A SINGLE
INTEGRATED EMPLOYER GROUP CONTROLLED BY THE MILLIKEN FAMILY THROUGH
DEERING MILLIKEN, OPERATING 17 TEXTILE COMPANIES WITH 27 MILLS; AND,
ALTERNATIVELY, SINCE DARLINGTON WAS PART OF THE INTEGRATED ENTERPRISE,
DEERING MILLIKEN VIOLATED THE ACT BY CLOSING PART OF ITS BUSINESS FOR A
DISCRIMINATORY PURPOSE.  THE COURT OF APPEALS HELD THAT, EVEN ASSUMING
DEERING MILLIKEN WAS A SINGLE EMPLOYER, IT HAD THE RIGHT TO TERMINATE
ALL OR PART OF ITS BUSINESS REGARDLESS OF ANTIUNION MOTIVES.  HELD: 

1.  IT IS NOT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO CLOSE HIS
ENTIRE BUSINESS, EVEN IF THE CLOSING IS DUE TO ANTIUNION ANIMUS.  PP.
269-274. 

2.  CLOSING PART OF A BUSINESS IS AN UNFAIR LABOR PRACTICE UNDER SEC.
8(A)(3) OF THE ACT IF THE PURPOSE IS TO DISCOURAGE UNIONISM IN ANY OF
THE EMPLOYER'S REMAINING PLANTS AND IF THE EMPLOYER MAY REASONABLY HAVE
FORESEEN SUCH EFFECT.  PP. 274-275. 

3.  IF THOSE EXERCISING CONTROL OVER A PLANT THAT IS BEING CLOSED FOR
ANTIUNION REASONS HAVE AN INTEREST IN ANOTHER BUSINESS, WHETHER OR NOT
AFFILIATED WITH OR IN THE SAME LINE OF COMMERCE AS THE CLOSED PLANT, OF
SUFFICIENT SUBSTANTIALITY TO PROMISE A BENEFIT FROM NONUNIONIZATION OF
THAT BUSINESS; ACT TO CLOSE THEIR PLANT FOR THAT PURPOSE; AND HAVE A
RELATIONSHIP TO THE OTHER BUSINESS WHICH MAKES IT PROBABLE THAT ITS
EMPLOYEES WILL FEAR CLOSING DOWN IF ORGANIZATIONAL ACTIVITIES ARE
CONTINUED, AN UNFAIR LABOR PRACTICE HAS BEEN MADE OUT.  PP. 275-276. 

4.  SINCE NO FINDINGS WERE MADE BY THE BOARD AS TO THE PURPOSE AND
EFFECT OF THE DARLINGTON CLOSING WITH RESPECT TO THE EMPLOYEES OF THE
OTHER PLANTS IN THE DEERING MILLIKEN GROUP, THE JUDGMENTS ARE VACATED
AND THE CASES REMANDED TO PERMIT SUCH FINDINGS TO BE MADE.  PP. 276
277. 

TEXTILE WORKERS UNION OF AMERICA V. DARLINGTON MANUFACTURING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WE HERE REVIEW JUDGMENTS OF THE COURT OF APPEALS SETTING ASIDE AND
REFUSING TO ENFORCE AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
WHICH FOUND RESPONDENT DARLINGTON GUILTY OF AN UNFAIR LABOR PRACTICE BY
REASON OF HAVING PERMANENTLY CLOSED ITS PLANT FOLLOWING PETITIONER
UNION'S ELECTION AS THE BARGAINING REPRESENTATIVE OF DARLINGTON'S
EMPLOYEES. 

DARLINGTON MANUFACTURING COMPANY WAS A SOUTH CAROLINA CORPORATION
OPERATING ONE TEXTILE MILL.  A MAJORITY OF DARLINGTON'S STOCK WAS HELD
BY DEERING MILLIKEN, A NEW YORK "SELLING HOUSE" MARKETING TEXTILES
PRODUCED BY OTHERS.  (FN1)  DEERING MILLIKEN IN TURN WAS CONTROLLED BY
ROGER MILLIKEN, PRESIDENT OF DARLINGTON, AND BY OTHER MEMBERS OF THE
MILLIKEN FAMILY.  (FN2)  THE NATIONAL LABOR RELATIONS BOARD FOUND THAT
THE MILLIKEN FAMILY, THROUGH DEERING MILLIKEN, OPERATED 17 TEXTILE
MANUFACTURERS, INCLUDING DARLINGTON, WHOSE PRODUCTS, MANUFACTURED IN 27
DIFFERENT MILLS, WERE MARKETED THROUGH DEERING MILLIKEN. 

IN MARCH 1956 PETITIONER TEXTILE WORKERS UNION INITIATED AN
ORGANIZATIONAL CAMPAIGN AT DARLINGTON WHICH THE COMPANY RESISTED
VIGOROUSLY IN VARIOUS WAYS, INCLUDING THREATS TO CLOSE THE MILL IF THE
UNION WON A REPRESENTATION ELECTION.  (FN3)  ON SEPTEMBER 6, 1956, THE
UNION WON AN ELECTION BY A NARROW MARGIN.  WHEN ROGER MILLIKEN WAS
ADVISED OF THE UNION VICTORY, HE DECIDED TO CALL A MEETING OF THE
DARLINGTON BOARD OF DIRECTORS TO CONSIDER CLOSING THE MILL.  MR.
MILLIKEN TESTIFIED BEFORE THE LABOR BOARD: 

"I FELT THAT AS A RESULT OF THE CAMPAIGN THAT HAD BEEN CONDUCTED AND
THE PROMISES AND STATEMENTS MADE IN THESE LETTERS THAT HAD BEEN
DISTRIBUTED FAVORING UNIONIZATION, THAT IF BEFORE WE HAD HAD SOME HOPE,
POSSIBLE HOPE OF ACHIEVING COMPETITIVE COSTS  ...  BY TAKING ADVANTAGE
OF NEW MACHINERY THAT WAS BEING PUT IN, THAT THIS HOPE HAD DIMINISHED
AS A RESULT OF THE ELECTION BECAUSE A MAJORITY OF THE EMPLOYEES HAD
VOTED IN FAVOR OF THE UNION  ...  ."  (R. 457.) 

THE BOARD OF DIRECTORS MET ON SEPTEMBER 12 AND VOTED TO LIQUIDATE THE
CORPORATION, ACTION WHICH WAS APPROVED BY THE STOCKHOLDERS ON OCTOBER
17.  THE PLANT CEASED OPERATIONS ENTIRELY IN NOVEMBER, AND ALL PLANT
MACHINERY AND EQUIPMENT WERE SOLD PIECEMEAL AT AUCTION IN DECEMBER. 

THE UNION FILED CHARGES WITH THE LABOR BOARD CLAIMING THAT DARLINGTON
HAD VIOLATED SECS. 8(A)(1) AND (3) OF THE NATIONAL LABOR RELATIONS ACT
BY CLOSING ITS PLANT, (FN4) AND SEC. 8(A)(5) BY REFUSING TO BARGAIN
WITH THE UNION AFTER THE ELECTION.  (FN5)  THE BOARD, BY A DIVIDED
VOTE, FOUND THAT DARLINGTON HAD BEEN CLOSED BECAUSE OF THE ANTIUNION
ANIMUS OF ROGER MILLIKEN, AND HELD THAT TO BE A VIOLATION OF SEC.
8(A)(3).  (FN6)  THE BOARD ALSO FOUND DARLINGTON TO BE PART OF A SINGLE
INTEGRATED EMPLOYER GROUP CONTROLLED BY THE MILLIKEN FAMILY THROUGH
DEERING MILLIKEN; THEREFORE DEERING MILLIKEN COULD BE HELD LIABLE FOR
THE UNFAIR LABOR PRACTICES OF DARLINGTON.  (FN7)  ALTERNATIVELY, SINCE
DARLINGTON WAS A PART OF THE DEERING MILLIKEN ENTERPRISE, DEERING
MILLIKEN HAD VIOLATED THE ACT BY CLOSING PART OF ITS BUSINESS FOR A
DISCRIMINATORY PURPOSE.  THE BOARD ORDERED BACK PAY FOR ALL DARLINGTON
EMPLOYEES UNTIL THEY OBTAINED SUBSTANTIALLY EQUIVALENT WORK OR WERE PUT
ON PREFERENTIAL HIRING LISTS AT THE OTHER DEERING MILLIKEN MILLS. 
RESPONDENT DEERING MILLIKEN WAS ORDERED TO BARGAIN WITH UNION IN REGARD
TO DETAILS OF COMPLIANCE WITH THE BOARD ORDER.  139 N.L.R.B. 241. 

ON REVIEW, THE COURT OF APPEALS, SITTING EN BANC, SET ASIDE THE ORDER
AND DENIED ENFORCEMENT BY A DIVIDED VOTE.  325 F.2D 682.  THE COURT OF
APPEALS HELD THAT EVEN ACCEPTING ARGUENDO THE BOARD'S DETERMINATION
THAT DEERING MILLIKEN HAD THE STATUS OF A SINGLE EMPLOYER, A COMPANY
HAS THE ABSOLUTE RIGHT TO CLOSE OUT A PART OR ALL OF ITS BUSINESS
REGARDLESS OF ANTIUNION MOTIVES.  THE COURT THEREFORE DID NOT REVIEW
THE BOARD'S FINDING THAT DEERING MILLIKEN WAS A SINGLE INTEGRATED
EMPLOYER.   WE GRANTED CERTIORARI, 377 U.S. 903, TO CONSIDER THE
IMPORTANT QUESTIONS INVOLVED.  WE HOLD THAT SO FAR AS THE LABOR
RELATIONS ACT IS CONCERNED, AN EMPLOYER HAS THE ABSOLUTE RIGHT TO
TERMINATE HIS ENTIRE BUSINESS FOR ANY REASON HE PLEASES, BUT DISAGREE
WITH THE COURT OF APPEALS THAT SUCH RIGHT INCLUDES THE ABILITY TO CLOSE
PART OF A BUSINESS NO MATTER WHAT THE REASON.  WE CONCLUDE THAT THE
CAUSE MUST BE REMANDED TO THE BOARD FOR FURTHER PROCEEDINGS. 

PRELIMINARILY IT SHOULD BE OBSERVED THAT BOTH PETITIONERS ARGUE THAT
THE DARLINGTON CLOSING VIOLATED SEC. 8(A)(1) AS WELL AS SEC. 8(A)(3) OF
THE ACT.  WE THINK, HOWEVER, THAT THE BOARD WAS CORRECT IN TREATING THE
CLOSING ONLY UNDER SEC. 8(A)(3).  (FN8)  SECTION 8(A)(1) PROVIDES THAT
IT IS AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER "TO INTERFERE WITH,
RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF" SEC. 7 RIGHTS.  (FN9)
NATURALLY, CERTAIN BUSINESS DECISIONS WILL, TO SOME DEGREE, INTERFERE
WITH CONCERTED ACTIVITIES BY EMPLOYEES.  BUT IT IS ONLY WHEN THE
INTERFERENCE WITH SEC. 7 RIGHTS OUTWEIGHS THE BUSINESS JUSTIFICATION
FOR THE EMPLOYER'S ACTION THAT SEC. 8(A)(1) IS VIOLATED.   SEE, E.G.,
LABOR BOARD V. STEELWORKERS, 357 U.S. 357; REPUBLIC AVIATION CORP. V.
LABOR BOARD, 324 U.S. 793.  A VIOLATION OF SEC. 8(A)(1) ALONE THEREFORE
PRESUPPOSES AN ACT WHICH IS UNLAWFUL EVEN ABSENT A DISCRIMINATORY
MOTIVE.  WHATEVER MAY BE THE LIMITS OF SEC. 8(A)(1), SOME EMPLOYER
DECISIONS ARE SO PECULIARLY MATTERS OF MANAGEMENT PREROGATIVE THAT THEY
WOULD NEVER CONSTITUTE VIOLATIONS OF SEC. 8(A)(1), WHETHER OR NOT THEY
INVOLVED SOUND BUSINESS JUDGMENT, UNLESS THEY ALSO VIOLATED SEC.
8(A)(3).  THUS IT IS NOT QUESTIONED IN THIS CASE THAT AN EMPLOYER HAS
THE RIGHT TO TERMINATE HIS BUSINESS, WHATEVER THE IMPACT OF SUCH ACTION
ON CONCERTED ACTIVITIES, IF THE DECISION TO CLOSE IS MOTIVATED BY OTHER
THAN DISCRIMINATORY REASONS.  (FN10)  BUT SUCH ACTION, IF
DISCRIMINATORILY MOTIVATED, IS ENCOMPASSED WITHIN THE LITERAL LANGUAGE
OF SEC. 8(A)(3).  WE THEREFORE DEAL WITH THE DARLINGTON CLOSING UNDER
THAT SECTION. 

                                             I. 

WE CONSIDER FIRST THE ARGUMENT, ADVANCED BY THE PETITIONER UNION BUT
NOT BY THE BOARD, AND REJECTED BY THE COURT OF APPEALS, THAT AN
EMPLOYER MAY NOT GO COMPLETELY OUT OF BUSINESS WITHOUT RUNNING AFOUL OF
THE LABOR RELATIONS ACT IF SUCH ACTION IS PROMPTED BY A DESIRE TO AVOID
UNIONIZATION.  (FN11)  GIVEN THE BOARD'S FINDINGS ON THE ISSUE OF
MOTIVE, ACCEPTANCE OF THIS CONTENTION WOULD CARRY THE DAY FOR THE
BOARD'S CONCLUSION THAT THE CLOSING OF THIS PLANT WAS AN UNFAIR LABOR
PRACTICE, EVEN ON THE ASSUMPTION THAT DARLINGTON IS TO BE REGARDED AS
AN INDEPENDENT UNRELATED EMPLOYER.  A PROPOSITION THAT A SINGLE
BUSINESSMAN CANNOT CHOOSE TO GO OUT OF BUSINESS IF HE WANTS TO WOULD
REPRESENT SUCH A STARTLING INNOVATION THAT IT SHOULD NOT BE ENTERTAINED
WITHOUT THE CLEAREST MANIFESTATION OF LEGISLATIVE INTENT OR UNEQUIVOCAL
JUDICIAL PRECEDENT SO CONSTRUING THE LABOR RELATIONS ACT.  WE FIND
NEITHER. 

SO FAR AS LEGISLATIVE MANIFESTATION IS CONCERNED, IT IS SUFFICIENT TO
SAY THAT THERE IS NOT THE SLIGHTEST INDICATION IN THE HISTORY OF THE
WAGNER ACT OR OF THE TAFT-HARTLEY ACT THAT CONGRESS ENVISAGED ANY SUCH
RESULT UNDER EITHER STATUTE. 

AS FOR JUDICIAL PRECEDENT, THE BOARD RECOGNIZED THAT "THERE IS NO
DECIDED CASE DIRECTLY DISPOSITIVE OF DARLINGTON'S CLAIM THAT IT HAD AN
ABSOLUTE RIGHT TO CLOSE ITS MILL, IRRESPECTIVE OF MOTIVE."  139
N.L.R.B., AT 250.  THE ONLY LANGUAGE BY THIS COURT IN ANY WAY ADVERTING
TO THIS PROBLEM IS FOUND IN SOUTHPORT PETROLEUM CO. V. LABOR BOARD, 315
U.S. 100, 106, WHERE IT WAS STATED: 

"WHETHER THERE WAS A BONA FIDE DISCONTINUANCE AND A TRUE CHANGE OF
OWNERSHIP - WHICH WOULD TERMINATE THE DUTY OF REINSTATEMENT CREATED BY
THE BOARD'S ORDER - OR MERELY A DISGUISED CONTINUANCE OF THE OLD
EMPLOYER, DOES NOT CLEARLY APPEAR  ...  ." 

THE COURTS OF APPEALS HAVE GENERALLY ASSUMED THAT A COMPLETE
CESSATION OF BUSINESS WILL REMOVE AN EMPLOYER FROM FUTURE COVERAGE BY
THE ACT.  THUS THE COURT OF APPEALS SAID IN THESE CASES:  THE ACT "DOES
NOT COMPEL A PERSON TO BECOME OR REMAIN AN EMPLOYEE.  IT DOES NOT
COMPEL ONE TO BECOME OR REMAIN AN EMPLOYER.  EITHER MAY WITHDRAW FROM
THAT STATUS WITH IMMUNITY, SO LONG AS THE OBLIGATIONS OF ANY EMPLOYMENT
CONTRACT HAVE BEEN MET."  325 F.2D, AT 685.  THE EIGHTH CIRCUIT, IN
LABOR BOARD V. NEW MADRID MFG. CO., 215 F.2D 908, 914, WAS EQUALLY
EXPLICIT:

"BUT NONE OF THIS CAN BE TAKEN TO MEAN THAT AN EMPLOYER DOES NOT HAVE
THE ABSOLUTE RIGHT, AT ALL TIMES, TO PERMANENTLY CLOSE AND GO OUT OF
BUSINESS  ...  FOR WHATEVER REASON HE MAY CHOOSE, WHETHER UNION
ANIMOSITY OR ANYTHING ELSE, AND WITHOUT HIS BEING THEREBY LEFT SUBJECT
TO A REMEDIAL LIABILITY UNDER THE LABOR MANAGEMENT RELATIONS ACT FOR
SUCH UNFAIR LABOR PRACTICES AS HE MAY HAVE COMMITTED IN THE ENTERPRISE,
EXCEPT UP TO THE TIME THAT SUCH ACTUAL AND PERMANENT CLOSING  ...  HAS
OCCURRED."  (FN12) 

THE AFL-CIO SUGGESTS IN ITS AMICUS BRIEF THAT DARLINGTON'S ACTION WAS
SIMILAR TO A DISCRIMINATORY LOCKOUT, WHICH IS PROHIBITED "'BECAUSE
DESIGNED TO FRUSTRATE ORGANIZATIONAL EFFORTS, TO DESTROY OR UNDERMINE
BARGAINING REPRESENTATION, OR TO EVADE THE DUTY TO BARGAIN.'"  (FN13)
ONE OF THE PURPOSES OF THE LABOR RELATIONS ACT IS TO PROHIBIT THE
DISCRIMINATORY USE OF ECONOMIC WEAPONS IN AN EFFORT TO OBTAIN FUTURE
BENEFITS.  THE DISCRIMINATORY LOCKOUT DESIGNED TO DESTROY A UNION, LIKE
A "RUNAWAY SHOP," IS A LEVER WHICH HAS BEEN USED TO DISCOURAGE
COLLECTIVE EMPLOYEE ACTIVITIES IN THE FUTURE.  BUT A COMPLETE
LIQUIDATION OF A BUSINESS YIELDS NO SUCH FUTURE BENEFIT FOR THE
EMPLOYER, IF THE TERMINATION IS BONA FIDE.  (FN14)  IT MAY BE MOTIVATED
MORE BY SPITE AGAINST THE UNION THAN BY BUSINESS REASONS, BUT IT IS NOT
THE TYPE OF DISCRIMINATION WHICH IS PROHIBITED BY THE ACT.  THE
PERSONAL SATISFACTION THAT SUCH AN EMPLOYER MAY DERIVE FROM STANDING ON
HIS BELIEFS AND THE MERE POSSIBILITY THAT OTHER EMPLOYERS WILL FOLLOW
HIS EXAMPLE ARE SURELY TOO REMOTE TO BE CONSIDERED DANGERS AT WHICH THE
LABOR STATUTES WERE AIMED.  (FN15)  ALTHOUGH EMPLOYEES MAY BE
PROHIBITED FROM ENGAGING IN A STRIKE UNDER CERTAIN CONDITIONS, NO ONE
WOULD CONSIDER IT A VIOLATION OF THE ACT FOR THE SAME EMPLOYEES TO QUIT
THEIR EMPLOYMENT EN MASSE, EVEN IF MOTIVATED BY A DESIRE TO RUIN THE
EMPLOYER.  THE VERY PERMANENCE OF SUCH ACTION WOULD NEGATE ANY FUTURE
ECONOMIC BENEFIT TO THE EMPLOYEES.  THE EMPLOYER'S RIGHT TO GO OUT OF
BUSINESS IS NO DIFFERENT. 

WE ARE NOT PRESENTED HERE WITH THE CASE OF A "RUNAWAY SHOP," (FN16)
WHEREBY DARLINGTON WOULD TRANSFER ITS WORK TO ANOTHER PLANT OR OPEN A
NEW PLANT IN ANOTHER LOCALITY TO REPLACE ITS CLOSED PLANT.  (FN17)  NOR
ARE WE CONCERNED WITH A SHUTDOWN WHERE THE EMPLOYEES, BY RENOUNCING THE
UNION, COULD CAUSE THE PLANT TO REOPEN.  (FN18)  SUCH CASES WOULD
INVOLVE DISCRIMINATORY EMPLOYER ACTION FOR THE PURPOSE OF OBTAINING
SOME BENEFIT FROM THE EMPLOYEES IN THE FUTURE.  (FN19)  WE HOLD HERE
ONLY THAT WHEN AN EMPLOYER CLOSES HIS ENTIRE BUSINESS, EVEN IF THE
LIQUIDATION IS MOTIVATED BY VINDICTIVENESS TOWARD THE UNION, SUCH
ACTION IS NOT AN UNFAIR LABOR PRACTICE.  (FN20)

                                            II. 

WHILE WE THUS AGREE WITH THE COURT OF APPEALS THAT VIEWING DARLINGTON
AS AN INDEPENDENT EMPLOYER THE LIQUIDATION OF ITS BUSINESS WAS NOT AN
UNFAIR LABOR PRACTICE, WE CANNOT ACCEPT THE LOWER COURT'S VIEW THAT THE
SAME CONCLUSION NECESSARILY FOLLOWS IF DARLINGTON IS REGARDED AS AN
INTEGRAL PART OF THE DEERING MILLIKEN ENTERPRISE. 

THE CLOSING OF AN ENTIRE BUSINESS, EVEN THOUGH DISCRIMINATORY, ENDS
THE EMPLOYER-EMPLOYEE RELATIONSHIP; THE FORCE OF SUCH A CLOSING IS
ENTIRELY SPENT AS TO THAT BUSINESS WHEN TERMINATION OF THE ENTERPRISE
TAKES PLACE.  ON THE OTHER HAND, A DISCRIMINATORY PARTIAL CLOSING MAY
HAVE REPERCUSSIONS ON WHAT REMAINS OF THE BUSINESS, AFFORDING EMPLOYER
LEVERAGE FOR DISCOURAGING THE FREE EXERCISE OF SEC. 7 RIGHTS AMONG
REMAINING EMPLOYEES OF MUCH THE SAME KIND AS THAT FOUND TO EXIST IN THE
"RUNAWAY SHOP" AND "TEMPORARY CLOSING" CASES.  SEE SUPRA, PP. 272-273. 
MOREOVER, A POSSIBLE REMEDY OPEN TO THE BOARD IN SUCH A CASE, LIKE THE
REMEDIES AVAILABLE IN THE "RUNAWAY SHOP" AND "TEMPORARY CLOSING" CASES,
IS TO ORDER REINSTATEMENT OF THE DISCHARGED EMPLOYEES IN THE OTHER
PARTS OF THE BUSINESS.  (FN21)  NO SUCH REMEDY IS AVAILABLE WHEN AN
ENTIRE BUSINESS HAS BEEN TERMINATED.  BY ANALOGY TO THOSE CASES
INVOLVING A CONTINUING ENTERPRISE WE ARE CONSTRAINED TO HOLD, IN
DISAGREEMENT WITH THE COURT OF APPEALS, THAT A PARTIAL CLOSING IS AN
UNFAIR LABOR PRACTICE UNDER SEC. 8(A)(3) IF MOTIVATED BY A PURPOSE TO
CHILL UNIONISM IN ANY OF THE REMAINING PLANTS OF THE SINGLE EMPLOYER
AND IF THE EMPLOYER MAY REASONABLY HAVE FORESEEN THAT SUCH CLOSING
WOULD LIKELY HAVE THAT EFFECT. 

WHILE WE HAVE SPOKEN IN TERMS OF A "PARTIAL CLOSING" IN THE CONTEXT
OF THE BOARD'S FINDING THAT DARLINGTON WAS PART OF A LARGER SINGLE
ENTERPRISE CONTROLLED BY THE MILLIKEN FAMILY, WE DO NOT MEAN TO SUGGEST
THAT AN ORGANIZATIONAL INTEGRATION OF PLANTS OR CORPORATIONS IS A
NECESSARY PREREQUISITE TO THE ESTABLISHEMENT OF SUCH A VIOLATION OF
SEC. 8(A)(3).  IF THE PERSONS EXERCISING CONTROL OVER A PLANT THAT IS
BEING CLOSED FOR ANTIUNION REASONS (1) HAVE AN INTEREST IN ANOTHER
BUSINESS, WHETHER OR NOT AFFILIATED WITH OR ENGAGED IN THE SAME LINE OF
COMMERCIAL ACTIVITY AS THE CLOSED PLANT, OF SUFFICIENT SUBSTANTIALITY
TO GIVE PROMISE OF THEIR REAPING A BENEFIT FROM THE DISCOURAGEMENT OF
UNIONIZATION IN THAT BUSINESS; (2) ACT TO CLOSE THEIR PLANT WITH THE
PURPOSE OF PRODUCING SUCH A RESULT; AND (3) OCCUPY A RELATIONSHIP TO
THE OTHER BUSINESS WHICH MAKES IT REALISTICALLY FORESEEABLE THAT ITS
EMPLOYEES WILL FEAR THAT SUCH BUSINESS WILL ALSO BE CLOSED DOWN IF THEY
PERSIST IN ORGANIZATIONAL ACTIVITIES, WE THINK THAT AN UNFAIR LABOR
PRACTICE HAS BEEN MADE OUT. 

ALTHOUGH THE BOARD'S SINGLE EMPLOYER FINDING NECESSARILY EMBRACED
FINDINGS AS TO ROGER MILLIKEN AND THE MILLIKEN FAMILY WHICH, IF
SUSTAINED BY THE COURT OF APPEALS, WOULD SATISFY THE ELEMENTS OF
"INTEREST" AND "RELATIONSHIP" WITH RESPECT TO OTHER PARTS OF THE
DEERING MILLIKEN ENTERPRISE, THAT AND THE OTHER BOARD FINDINGS FALL
SHORT OF ESTABLISHING THE FACTORS OF "PURPOSE" AND "EFFECT" WHICH ARE
VITAL REQUISITES OF THE GENERAL PRINCIPLES THAT GOVERN A CASE OF THIS
KIND. 

THUS, THE BOARD'S FINDINGS AS TO THE PURPOSE AND FORESEEABLE EFFECT
OF THE DARLINGTON CLOSING PERTAINED ONLY TO ITS IMPACT ON THE
DARLINGTON EMPLOYEES.  NO FINDINGS WERE MADE AS TO THE PURPOSE AND
EFFECT OF THE CLOSING WITH RESPECT TO THE EMPLOYEES IN THE OTHER PLANTS
COMPRISING THE DEERING MILLIKEN GROUP.  IT DOES NOT SUFFICE TO
ESTABLISH THE UNFAIR LABOR PRACTICE CHARGED HERE TO ARGUE THAT THE
DARLINGTON CLOSING NECESSARILY HAD AN ADVERSE IMPACT UPON UNIONIZATION
IN SUCH OTHER PLANTS.  WE HAVE HERETOFORE OBSERVED THAT EMPLOYER ACTION
WHICH HAS A FORESEEABLE CONSEQUENCE OF DISCOURAGING CONCERTED
ACTIVITIES GENERALLY (FN22) DOES NOT AMOUNT TO A VIOLATION OF SEC.
8(A)(3) IN THE ABSENCE OF A SHOWING OF MOTIVATION WHICH IS AIMED AT
ACHIEVING THE PROHIBITED EFFECT.  SEE TEAMSTERS LOCAL V. LABOR BOARD,
365 U.S. 667, AND THE CONCURRING OPINION THEREIN, AT 677.  IN AN AREA
WHICH TRENCHES SO CLOSELY UPON OTHERWISE LEGITIMATE EMPLOYER
PREROGATIVES, WE CONSIDER THE ABSENCE OF BOARD FINDINGS ON THIS SCORE A
FATAL DEFECT IN ITS DECISION.  THE COURT OF APPEALS FOR ITS PART DID
NOT DEAL WITH THE QUESTION OF PURPOSE AND EFFECT AT ALL, SINCE IT
CONCLUDED THAT AN EMPLOYER'S RIGHT TO CLOSE DOWN HIS ENTIRE BUSINESS
BECAUSE OF DISTASTE FOR UNIONISM, ALSO EMBRACED A PARTIAL CLOSING SO
MOTIVATED. 

APART FROM THIS, THE BOARD'S HOLDING SHOULD NOT BE ACCEPTED OR
REJECTED WITHOUT COURT REVIEW OF ITS SINGLE EMPLOYER FINDING, JUDGED,
HOWEVER, IN ACCORDANCE WITH THE GENERAL PRINCIPLES SET FORTH ABOVE. 
REVIEW OF THAT FINDING, WHICH THE LOWER COURT FOUND UNNECESSARY ON ITS
VIEW OF THE CAUSE, NOW BECOMES NECESSARY IN LIGHT OF OUR HOLDING IN
THIS PART OF OUR OPINION, AND IS A TASK THAT DEVOLVES UPON THE COURT OF
APPEALS IN THE FIRST INSTANCE.  UNIVERSAL CAMERA CORP. V. LABOR BOARD,
340 U.S. 474. 

IN THESE CIRCUMSTANCES, WE THINK THE PROPER DISPOSITION OF THIS CAUSE
IS TO REQUIRE THAT IT BE REMANDED TO THE BOARD SO AS TO AFFORD THE
BOARD THE OPPORTUNITY TO MAKE FURTHER FINDINGS ON THE ISSUE OF PURPOSE
AND EFFECT.  SEE, E.G., LABOR BOARD V. VIRGINIA ELEC.  & POWER CO., 314
U.S. 469, 479-480.  THIS IS PARTICULARLY APPROPRIATE HERE SINCE THE
CASES INVOLVE ISSUES OF FIRST IMPRESSION.  IF SUCH FINDINGS ARE MADE,
THE CASES WILL THEN BE IN A POSTURE FOR FURTHER REVIEW BY THE COURT OF
APPEALS ON ALL ISSUES.  ACCORDINGLY, WITHOUT INTIMATING ANY VIEW AS TO
HOW ANY OF THESE MATTERS SHOULD EVENTUATE, WE VACATE THE JUDGMENTS OF
THE COURT OF APPEALS AND REMAND THE CASES TO THAT COURT WITH
INSTRUCTIONS TO REMAND THEM TO THE BOARD FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  DEERING MILLIKEN & CO. OWNED 41% OF THE DARLINGTON STOCK. 
COTWOOL MANUFACTURING CORP., ANOTHER TEXTILE MANUFACTURER, OWNED 18% OF
THE STOCK.  IN 1960 DEERING MILLIKEN & CO. WAS MERGED INTO COTWOOL, THE
SURVIVOR BEING NAMED DEERING MILLIKEN, INC. 

FN2  THE MILLIKEN FAMILY OWNED ONLY 6% OF THE DARLINGTON STOCK, BUT
HELD A MAJORITY STOCK INTEREST IN BOTH DEERING MILLIKEN & CO. AND
COTWOOL, SEE N. 1, SUPRA. 

FN3  THE BOARD FOUND THAT DARLINGTON HAD INTERROGATED EMPLOYEES AND
THREATENED TO CLOSE THE MILL IF THE UNION WON THE ELECTION.  AFTER THE
DECISION TO LIQUIDATE WAS MADE (SEE INFRA), DARLINGTON EMPLOYEES WERE
TOLD THAT THE DECISION TO CLOSE WAS CAUSED BY THE ELECTION, AND THEY
WERE ENCOURAGED TO SIGN A PETITION DISAVOWING THE UNION.  THESE
PRACTICES WERE HELD TO VIOLATE SEC. 8(A)(1) OF THE NATIONAL LABOR
RELATIONS ACT, N. 4, INFRA, AND THAT PART OF THE BOARD DECISION IS NOT
CHALLENGED HERE. 

FN4  NATIONAL LABOR RELATIONS ACT, SECS. 8(A)(1) AND (3), AS AMENDED,
61 STAT. 140 (1947), 29 U.S.C. SECS. 158(A)(1) AND (3) (1958 ED.),
PROVIDE IN PERTINENT PART: 

"(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 7 (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  ...  ." 

FN5  THE UNION ASKED FOR A BARGAINING CONFERENCE ON SEPTEMBER 12,
1956 (THE DAY THAT THE BOARD OF DIRECTORS VOTED TO LIQUIDATE), BUT WAS
TOLD TO AWAIT CERTIFICATION BY THE BOARD.  THE UNION WAS CERTIFIED ON
OCTOBER 24, AND DID MEET WITH DARLINGTON OFFICIALS IN NOVEMBER, BUT NO
ACTUAL BARGAINING TOOK PLACE.  THE BOARD FOUND THIS TO BE A VIOLATION
OF SEC. 8(A)(5).  SUCH A FINDING WAS IN PART BASED ON THE DETERMINATION
THAT THE PLANT CLOSING WAS AN UNFAIR LABOR PRACTICE, AND NO ARGUMENT IS
MADE THAT SEC. 8(A)(5) REQUIRES AN EMPLOYER TO BARGAIN CONCERNING A
PURELY BUSINESS DECISION TO TERMINATE HIS ENTERPRISE.  CF. FIBREBOARD
PAPER PRODUCTS CORP. V. LABOR BOARD, 379 U.S. 203. 

FN6  SINCE THE CLOSING WAS HELD TO BE ILLEGAL, THE BOARD FOUND THAT
THE GRADUAL DISCHARGES OF ALL EMPLOYEES DURING NOVEMBER AND DECEMBER
CONSTITUTED SEC. 8(A)(1) VIOLATIONS.  THE PROPRIETY OF THIS
DETERMINATION DEPENDS ENTIRELY ON WHETHER THE DECISION TO CLOSE THE
PLANT VIOLATED SEC. 8(A)(3). 

FN7  MEMBERS LEEDOM AND RODGERS AGREED WITH THE TRIAL EXAMINER THAT
DEERING MILLIKEN WAS NOT A SINGLE EMPLOYER.  MEMBER RODGERS DISSENTED
IN ARGUING THAT DARLINGTON HAD NOT VIOLATED SEC. 8(A)(3) BY CLOSING. 

FN8  THE BOARD DID FIND THAT DARLINGTON'S DISCHARGES OF EMPLOYEES
FOLLOWING THE DECISION TO CLOSE VIOLATED SEC. 8(A)(1).  SEE N. 6,
SUPRA. 

FN9  NLRA SEC. 7, AS AMENDED, 29 U.S.C. SEC. 157 (1958 ED.),
PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3) (SECTION
158(A)(3) OF THIS TITLE)." 

FN10  IT IS ALSO CLEAR THAT THE AMBIGUOUS ACT OF CLOSING A PLANT
FOLLOWING THE ELECTION OF A UNION IS NOT, ABSENT AN INQUIRY INTO THE
EMPLOYER'S MOTIVE, INHERENTLY DISCRIMINATORY.  WE ARE THUS NOT
CONFRONTED WITH A SITUATION WHERE THE EMPLOYER "MUST BE HELD TO INTEND
THE VERY CONSEQUENCES WHICH FORESEEABLY AND INESCAPABLY FLOW FROM HIS
ACTIONS  ...  " (LABOR BOARD V. ERIE RESISTOR CORP., 373 U.S. 221,
228), IN WHICH THE BOARD COULD FIND A VIOLATION OF SEC. 8(A)(3) WITHOUT
AN EXAMINATION INTO MOTIVE.  SEE RADIO OFFICERS V. LABOR BOARD, 347
U.S. 17, 42-43; TEAMSTERS LOCAL V. LABOR BOARD, 365 U.S. 667, 674-676. 

FN11  THE BOARD PREDICATES ITS ARGUMENT ON THE FINDING THAT DEERING
MILLIKEN WAS AN INTEGRATED ENTERPRISE, AND DOES NOT CONSIDER IT
NECESSARY TO ARGUE THAT AN EMPLOYER MAY NOT GO COMPLETELY OUT OF
BUSINESS FOR ANTIUNION REASONS.  BRIEF FOR NATIONAL LABOR RELATIONS
BOARD, P. 3, N. 2. 

FN12  IN NEW MADRID THE BUSINESS WAS TRANSFERRED TO A NEW EMPLOYER,
WHICH WAS HELD LIABLE FOR THE UNFAIR LABOR PRACTICES COMMITTED BY ITS
PREDECESSOR BEFORE CLOSING.  THE CLOSING ITSELF WAS NOT FOUND TO BE AN
UNFAIR LABOR PRACTICE. 

FN13  BRIEF FOR AFL-CIO, P. 7, QUOTING FROM LABOR BOARD V. TRUCK
DRIVERS LOCAL, 353 U.S. 87, 93.  THIS BRIEF WAS INCORPORATED BY
REFERENCE AS POINT I OF THE PETITIONER UNION'S BRIEF IN THIS COURT. 

FN14  THE DARLINGTON PROPERTY AND EQUIPMENT COULD NOT BE SOLD AS A
UNIT, AND WERE EVENTUALLY AUCTIONED OFF PIECEMEAL.  WE THEREFORE ARE
NOT CONFRONTED WITH A SALE OF A GOING CONCERN, WHICH MIGHT PRESENT
DIFFERENT CONSIDERATIONS UNDER SECS. 8(A)(3) AND (5).  CF. JOHN WILEY &
SONS, INC. V. LIVINGSTON, 376 U.S. 543; LABOR BOARD V. DEENA ARTWARE,
INC., 361 U.S. 398. 

FN15  CF. NLRA SEC. 8(C), 29 U.S.C. SEC. 158(C) (1958 ED.). 
DIFFERENT CONSIDERATIONS WOULD ARISE WERE IT MADE TO APPEAR THAT THE
CLOSING EMPLOYER WAS ACTING PURSUANT TO SOME ARRANGEMENT OR
UNDERSTANDING WITH OTHER EMPLOYERS TO DISCOURAGE EMPLOYEE
ORGANIZATIONAL ACTIVITIES IN THEIR BUSINESSES. 

FN16  E.G., LABOR BOARD V. PRESTON FEED CORP., 309 F.2D 346; LABOR
BOARD V. WALLICK, 198 F.2D 477.   AN ANALOGOUS PROBLEM IS PRESENTED
WHERE A DEPARTMENT IS CLOSED FOR ANTIUNION REASONS BUT THE WORK IS
CONTINUED BY INDEPENDENT CONTRACTORS.  SEE, E.G., LABOR BOARD V. KELLY
& PICERNE, INC., 298 F.2D 895; JAYS FOODS, INC. V. LABOR BOARD, 292
F.2D 317; LABOR BOARD V. R.C. MAHON CO., 269 F.2D 44; LABOR BOARD V.
BANK OF AMERICA, 130 F.2D 624; WILLIAMS MOTOR CO. V. LABOR BOARD, 128
F.2D 960. 

FN17  AFTER THE DECISION TO CLOSE THE PLANT, DARLINGTON ACCEPTED NO
NEW ORDERS, AND MERELY CONTINUED OPERATIONS FOR A TIME TO FILL PENDING
ORDERS.  139 N.L.R.B., AT 244. 

FN18  E.G., LABOR BOARD V. NORMA MINING CORP., 206 F.2D 38. 
SIMILARLY, IF ALL EMPLOYEES ARE DISCHARGED BUT THE WORK CONTINUES WITH
NEW PERSONNEL, THE EFFECT IS TO DISCOURAGE ANY FUTURE UNION
ACTIVITIES.  SEE LABOR BOARD V. WATERMAN S.S. CO., 309 U.S. 206; LABOR
BOARD V. NATIONAL GARMENT CO., 166 F.2D 233; LABOR BOARD V. STREMEL,
141 F.2D 317. 

FN19  ALL OF THE CASES TO WHICH WE HAVE BEEN CITED INVOLVED CLOSINGS
FOUND TO HAVE BEEN MOTIVATED, AT LEAST IN PART, BY THE EXPECTATION OF
ACHIEVING FUTURE BENEFITS.  SEE CASES CITED IN NOTES 16, 18, SUPRA.
THE TWO CASES WHICH ARE URGED AS INDISTINGUISHABLE FROM DARLINGTON ARE
LABOR BOARD V. SAVOY LAUNDRY, 327 F.2D 370, AND LABOR BOARD V. MISSOURI
TRANSIT CO., 250 F.2D 261.  IN SAVOY LAUNDRY THE EMPLOYER OPERATED ONE
LAUNDRY PLANT WHERE HE PROCESSED BOTH RETAIL LAUNDRY PICKUPS AND
WHOLESALE LAUNDERING.  ONCE THE LAUNDRY WAS MARKED, ALL OF IT WAS
PROCESSED TOGETHER.  AFTER SOME OF THE EMPLOYEES ORGANIZED, THE
EMPLOYER DISCONTINUED MOST OF THE WHOLESALE SERVICE, AND THEREAFTER
DISCHARGED SOME OF HIS EMPLOYEES.  THERE WAS NO SEPARATE WHOLESALE
DEPARTMENT, AND THE DISCRIMINATORY MOTIVE WAS OBVIOUSLY TO DISCOURAGE
UNIONIZATION IN THE ENTIRE PLANT.  MISSOURI TRANSIT PRESENTS A SIMILAR
SITUATION.  A BUS COMPANY OPERATED AN INTERSTATE LINE AND AN INTRASTATE
SHUTTLE SERVICE CONNECTING A MILITARY BASE WITH THE INTERSTATE
TERMINAL.  WHEN THE UNION ATTEMPTED TO ORGANIZE ALL OF THE DRIVERS, THE
SHUTTLE SERVICE WAS SOLD AND THE SHUTTLE DRIVERS WERE DISCHARGED. 
ALTHOUGH THE TWO SERVICES WERE CREATED AS SEPARATE DEPARTMENTS, IT IS
CLEAR FROM THE FACTS OF THE CASE THAT THE UNION WAS ATTEMPTING TO
ORGANIZE ALL OF THE DRIVERS, AND THE DISCRIMINATORY MOTIVE OF THE
EMPLOYER WAS TO DISCOURAGE UNIONIZATION IN THE INTERSTATE SERVICE AS
WELL AS THE SHUTTLE SERVICE. 

FN20  NOTHING WE HAVE SAID IN THIS OPINION WOULD JUSTIFY AN
EMPLOYER'S INTERFERING WITH EMPLOYEE ORGANIZATIONAL ACTIVITIES BY
THREATENING TO CLOSE HIS PLANT, AS DISTINGUISHED FROM ANNOUNCING A
DECISION TO CLOSE ALREADY REACHED BY THE BOARD OF DIRECTORS OR OTHER
MANAGEMENT AUTHORITY EMPOWERED TO MAKE SUCH A DECISION.  WE RECOGNIZE
THAT THIS SAFEGUARD DOES NOT WHOLLY REMOVE THE POSSIBILITY THAT OUR
HOLDING MAY RESULT IN SOME DETERRENT EFFECT ON ORGANIZATIONAL
ACTIVITIES INDEPENDENT OF THAT ARISING FROM THE CLOSING ITSELF.  AN
EMPLOYER MAY BE ENCOURAGED TO MAKE A DEFINITIVE DECISION TO CLOSE ON
THE THEORY THAT ITS MERE ANNOUNCEMENT BEFORE A REPRESENTATION ELECTION
WILL DISCOURAGE THE EMPLOYEES FROM VOTING FOR THE UNION, AND THUS HIS
DECISION MAY NOT HAVE TO BE IMPLEMENTED.  SUCH A POSSIBILITY IS NOT
LIKELY TO OCCUR, HOWEVER, EXCEPT IN A MARGINAL BUSINESS; A SOLIDLY
SUCCESSFUL EMPLOYER IS NOT APT TO HAZARD THE POSSIBILITY THAT THE
EMPLOYEES WILL CALL HIS BLUFF BY VOTING TO ORGANIZE.  WE SEE NO
PRACTICAL WAY OF ELIMINATING THIS POSSIBLE CONSEQUENCE OF OUR HOLDING
SHORT OF ALLOWING THE BOARD TO ORDER AN EMPLOYER WHO CHOOSES SO TO
GAMBLE WITH HIS EMPLOYEES NOT TO CARRY OUT HIS ANNOUNCED INTENTION TO
CLOSE.  WE DO NOT CONSIDER THE MATTER OF SUFFICIENT SIGNIFICANCE IN THE
OVERALL LABOR-MANAGEMENT RELATIONS PICTURE TO REQUIRE OR JUSTIFY A
DECISION DIFFERENT FROM THE ONE WE HAVE MADE. 

FN21  IN THE VIEW WE TAKE OF THESE CASES WE DO NOT REACH ANY OF THE
CHALLENGES MADE TO THE BOARD'S REMEDY AFFORDED HERE. 

FN22  SEE N. 10, SUPRA. 

MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THESE CASES. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :










NATIONAL LABOR RELATIONS BOARD V. BROWN, DBA BROWN FOOD STORE 380 U.S.
278 


NO. 7.  ARGUED JANUARY 19, 1965.  - DECIDED MARCH 29, 1965.  - 319 F.2D
7, AFFIRMED. 


RESPONDENTS WERE MEMBERS OF A MULTIEMPLOYER BARGAINING GROUP WITH A
HISTORY OF SUCCESSFUL BARGAINING.  AFTER THE UNION STRUCK ANOTHER
MEMBER OF THE GROUP, WHICH CONTINUED OPERATIONS USING TEMPORARY
REPLACEMENTS, RESPONDENTS LOCKED OUT THEIR EMPLOYEES AND UTILIZED
TEMPORARY REPLACEMENTS TO CONTINUE BUSINESS OPERATIONS.  THE NATIONAL
LABOR RELATIONS BOARD FOUND THAT, WHILE THE USE OF TEMPORARY
REPLACEMENTS BY THE STRUCK EMPLOYER WAS LAWFUL, THE LOCKOUT OF REGULAR
EMPLOYEES AND THEIR TEMPORARY REPLACEMENT BY RESPONDENTS VIOLATED SECS.
8(A)(1) AND (3) OF THE NATIONAL LABOR RELATIONS ACT.  THE COURT OF
APPEALS DISAGREED AND REFUSED TO ENFORCE THE BOARD'S ORDER.  HELD: 

1.  ALTHOUGH THE BOARD NEED NOT INQUIRE INTO EMPLOYER MOTIVATION TO
SUPPORT A FINDING OF AN UNFAIR LABOR PRACTICE WHERE THE EMPLOYER'S
CONDUCT IS DEMONSTRABLY DESTRUCTIVE OF EMPLOYEE RIGHTS AND IS NOT
JUSTIFIED BY THE SERVICE OF SIGNIFICANT OR IMPORTANT BUSINESS ENDS,
RESPONDENTS' LOCKOUT AND SUBSEQUENT OPERATIONS WITH TEMPORARY HELP IN
THE FACE OF THE STRUCK EMPLOYER'S CONTINUED OPERATIONS DURING THE
WHIPSAW STRIKE DO NOT CONSTITUTE SUCH CONDUCT.  PP. 282-286. 

(A)  SINCE THE STRUCK EMPLOYER CONTINUED TO OPERATE, RESPONDENTS
MIGHT REASONABLY HAVE BEEN CONCERNED THAT THE INTEGRITY OF THE EMPLOYER
GROUP WAS THREATENED UNLESS THEY MANAGED TO STAY OPEN DURING THE
LOCKOUT.  P. 284. 

(B)  RESPONDENTS' CONTINUED OPERATIONS WITH THE USE OF TEMPORARY
EMPLOYEES AFTER THE LOCKOUT WAS WHOLLY CONSISTENT WITH A LEGITIMATE
BUSINESS PURPOSE.  P. 285. 

(C)  RESPONDENTS' USE OF TEMPORARY REPLACEMENTS RATHER THAN SOME OF
THEIR REGULAR EMPLOYEES DOES NOT JUSTIFY AN INFERENCE OF HOSTILE
MOTIVATION; TO LIMIT THE RESPONDENTS TO THE USE OF REGULAR EMPLOYEES
UNDER THE CIRCUMSTANCES HERE PRESENT WOULD BE TO RENDER LARGELY
ILLUSORY THE RIGHT OF LOCKOUT RECOGNIZED BY LABOR BOARD V. TRUCK
DRIVERS UNION, 353 U.S. 87.  P. 285. 

(D)  ABSENT EVIDENTIARY FINDINGS OF HOSTILE MOTIVE THERE IS NO
SUPPORT FOR A CONCLUSION THAT RESPONDENTS VIOLATED SEC. 8(A)(1) OF THE
ACT.  P. 286. 

2.  INDISPENSABLE TO A VIOLATION OF SEC. 8(A)(3) IS A DETERMINATION
THAT THE EMPLOYER'S ACTIONS WERE MOTIVATED BY AN UNLAWFUL INTENT, AND
WHILE NO SPECIFIC EVIDENCE OF THIS UNLAWFUL INTENT IS NECESSARY WHEN AN
EMPLOYER PRACTICE IS INHERENTLY DESTRUCTIVE OF EMPLOYEE RIGHTS AND IS
NOT JUSTIFIED BY LEGITIMATE BUSINESS REASONS, WHERE, AS HERE, THE
TENDENCY TO DISCOURAGE MEMBERSHIP IS COMPARATIVELY SLIGHT, AND THE
EMPLOYER'S CONDUCT IS REASONABLY ADAPTED TO ACHIEVE LEGITIMATE BUSINESS
ENDS, THE IMPROPER INTENT OF THE EMPLOYER MUST BE ESTABLISHED BY
INDEPENDENT EVIDENCE.  NOT ONLY IS THE RECORD DEVOID OF ANY EVIDENCE
THAT RESPONDENTS ACTED WITH AN IMPROPER INTENT, BUT IT CONTAINS
POSITIVE EVIDENCE OF THEIR GOOD FAITH.  PP. 286-290. 

3.  WHILE COURTS SHOULD BE SLOW TO OVERTURN AN ADMINISTRATIVE
DECISION, THEY ARE NOT LEFT TO SHEER ACCEPTANCE OF THE BOARD'S
CONCLUSIONS, AND MUST SET ASIDE A BOARD DECISION WHICH RESTS ON AN
ERRONEOUS LEGAL FOUNDATION.  PP. 290-292. 

NATIONAL LABOR RELATIONS BOARD V. BROWN ET AL., DBA BROWN FOOD STORE, ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS, WHO ARE MEMBERS OF A MULTIEMPLOYER BARGAINING GROUP,
LOCKED OUT THEIR EMPLOYEES IN RESPONSE TO A WHIPSAW STRIKE AGAINST
ANOTHER MEMBER OF THE GROUP.  THEY AND THE STRUCK EMPLOYER CONTINUED
OPERATIONS WITH TEMPORARY REPLACEMENTS.  THE NATIONAL LABOR RELATIONS
BOARD FOUND THAT THE STRUCK EMPLOYER'S USE OF TEMPORARY REPLACEMENTS
WAS LAWFUL UNDER LABOR BOARD V. MACKAY RADIO & TELEGRAPH CO., 304 U.S.
333, BUT THAT THE RESPONDENTS HAD VIOLATED SECS. 8(A)(1) AND (3) OF THE
NATIONAL LABOR RELATIONS ACT (FN1) BY LOCKING OUT THEIR REGULAR
EMPLOYEES AND USING TEMPORARY REPLACEMENTS TO CARRY ON BUSINESS.  137
N.L.R.B. 73.  THE COURT OF APPEALS FOR THE TENTH CIRCUIT DISAGREED AND
REFUSED TO ENFORCE THE BOARD'S ORDER.  319 F.2D 7.  WE GRANTED
CERTIORARI, 375 U.S. 962.  WE AFFIRM THE COURT OF APPEALS. 

FIVE OPERATORS OF SIX RETAIL FOOD STORES IN CARLSBAD, NEW MEXICO,
MAKE UP THE EMPLOYER GROUP.  THE STORES HAD BARGAINED SUCCESSFULLY ON A
GROUP BASIS FOR MANY YEARS WITH LOCAL 462 OF THE RETAIL CLERKS
INTERNATIONAL ASSOCIATION.  NEGOTIATIONS FOR A NEW COLLECTIVE
BARGAINING AGREEMENT TO REPLACE THE EXPIRING ONE BEGAN IN JANUARY
1960.  AGREEMENT WAS REACHED BY MID-FEBRUARY ON ALL TERMS EXCEPT THE
AMOUNT AND EFFECTIVE DATE OF A WAGE INCREASE.  BARGAINING CONTINUED
WITHOUT RESULT, AND ON MARCH 2 THE LOCAL INFORMED THE EMPLOYERS THAT A
STRIKE HAD BEEN AUTHORIZED.  THE EMPLOYERS RESPONDED THAT A STRIKE
AGAINST ANY MEMBER OF THE EMPLOYER GROUP WOULD BE REGARDED AS A STRIKE
AGAINST ALL.  ON MARCH 16, THE UNION STRUCK FOOD JET, INC., ONE OF THE
GROUP.  THE FOUR RESPONDENTS, OPERATING FIVE STORES, IMMEDIATELY LOCKED
OUT ALL EMPLOYEES REPRESENTED BY THE LOCAL, TELLING THEM AND THE LOCAL
THAT THEY WOULD BE RECALLED TO WORK WHEN THE STRIKE AGAINST FOOD JET
ENDED.  THE STORES, INCLUDING FOOD JET, CONTINUED TO CARRY ON BUSINESS
BY USING MANAGEMENT PERSONNEL, RELATIVES OF SUCH PERSONNEL, AND A FEW
TEMPORARY EMPLOYEES; ALL OF THE TEMPORARY REPLACEMENTS WERE EXPRESSLY
TOLD THAT THE ARRANGEMENT WOULD BE DISCONTINUED WHEN THE WHIPSAW STRIKE
ENDED.  (FN2)  BARGAINING CONTINUED UNTIL APRIL 22 WHEN AN AGREEMENT
WAS REACHED.  THE EMPLOYERS IMMEDIATELY RELEASED THE TEMPORARY
REPLACEMENTS AND RESTORED THE STRIKERS AND THE LOCKED-OUT EMPLOYEES TO
THEIR JOBS. 

THE BOARD AND THE COURT OF APPEALS AGREED THAT THE CASE WAS TO BE
DECIDED IN LIGHT OF OUR DECISION IN THE SO-CALLED BUFFALO LINEN CASE,
LABOR BOARD V. TRUCK DRIVERS UNION, 353 U.S. 87.  THERE WE SUSTAINED
THE BOARD'S FINDING THAT, IN THE ABSENCE OF SPECIFIC PROOF OF UNLAWFUL
MOTIVATION, THE USE OF A LOCKOUT BY MEMBERS OF A MULTIEMPLOYER
BARGAINING UNIT IN RESPONSE TO A WHIPSAW STRIKE DID NOT VIOLATE EITHER
SEC. 8(A)(1) OR SEC. 8(A)(3).  WE HELD THAT, ALTHOUGH THE LOCKOUT
TENDED TO IMPAIR THE EFFECTIVENESS OF THE WHIPSAW STRIKE, THE RIGHT TO
STRIKE "IS NOT SO ABSOLUTE AS TO DENY SELF-HELP BY EMPLOYERS WHEN
LEGITIMATE INTERESTS OF EMPLOYEES AND EMPLOYERS COLLIDE  ...  .  THE
ULTIMATE PROBLEM IS THE BALANCING OF THE CONFLICTING LEGITIMATE
INTERESTS."  353 U.S., AT 96.  WE CONCLUDED THAT THE BOARD CORRECTLY
BALANCED THOSE INTERESTS IN UPHOLDING THE LOCKOUT, SINCE IT FOUND THAT
THE NONSTRUCK EMPLOYERS RESORTED TO THE LOCKOUT TO PRESERVE THE
MULTIEMPLOYER BARGAINING UNIT FROM THE DISINTEGRATION THREATENED BY THE
WHIPSAW STRIKE.  BUT IN THE PRESENT CASE THE BOARD HELD, TWO MEMBERS
DISSENTING, THAT THE RESPONDENTS' CONTINUED OPERATIONS WITH TEMPORARY
REPLACEMENTS CONSTITUTED A "CRITICAL DIFFERENCE" FROM BUFFALO LINEN -
WHERE ALL MEMBERS OF THE EMPLOYER GROUP SHUT DOWN OPERATIONS - AND THAT
IN THIS CIRCUMSTANCE IT WAS REASONABLE TO INFER THAT THE RESPONDENTS
DID NOT ACT TO PROTECT THE MULTIEMPLOYER GROUP, BUT "FOR THE PURPOSE OF
INHIBITING A LAWFUL STRIKE."   137 N.L.R.B., AT 76.  THUS THE
RESPONDENTS' ACT WAS BOTH A COERCIVE PRACTICE CONDEMNED BY SEC. 8(A)(1)
AND DISCRIMINATORY CONDUCT IN VIOLATION OF SEC. 8(A)(3). 

THE BOARD'S DECISION DOES NOT REST UPON INDEPENDENT EVIDENCE THAT THE
RESPONDENTS ACTED EITHER OUT OF HOSTILITY TOWARD THE LOCAL OR IN
REPRISAL FOR THE WHIPSAW STRIKE.  IT RESTS UPON THE BOARD'S APPRAISAL
THAT THE RESPONDENTS' CONDUCT CARRIED ITS OWN INDICIA OF UNLAWFUL
INTENT, THEREBY ESTABLISHING, WITHOUT MORE, THAT THE CONDUCT
CONSTITUTED AN UNFAIR LABOR PRACTICE.  IT WAS DISAGREEMENT WITH THIS
APPRAISAL, WHICH WE SHARE, THAT LED THE COURT OF APPEALS TO REFUSE TO
ENFORCE THE BOARD'S ORDER. 

IT IS TRUE THAT THE BOARD NEED NOT INQUIRE INTO EMPLOYER MOTIVATION
TO SUPPORT A FINDING OF AN UNFAIR LABOR PRACTICE WHERE THE EMPLOYER
CONDUCT IS DEMONSTRABLY DESTRUCTIVE OF EMPLOYEE RIGHTS AND IS NOT
JUSTIFIED BY THE SERVICE OF SIGNIFICANT OR IMPORTANT BUSINESS ENDS. 
SEE, E.G., LABOR BOARD V. ERIE RESISTOR CORP., 373 U.S. 221; LABOR
BOARD V. BURNUP & SIMS, INC., 379 U.S. 21.  WE AGREE WITH THE COURT OF
APPEALS THAT, IN THE SETTING OF THIS WHIPSAW STRIKE AND FOOD JET'S
CONTINUED OPERATIONS, THE RESPONDENTS' LOCKOUT AND THEIR CONTINUED
OPERATIONS WITH THE USE OF TEMPORARY REPLACEMENTS, VIEWED SEPARATELY OR
AS A SINGLE ACT, DO NOT CONSTITUTE SUCH CONDUCT. 

WE BEGIN WITH THE PROPOSITION THAT THE ACT DOES NOT CONSTITUTE THE
BOARD AS AN "ARBITER OF THE SORT OF ECONOMIC WEAPONS THE PARTIES CAN
USE IN SEEKING TO GAIN ACCEPTANCE OF THEIR BARGAINING DEMANDS."  LABOR
BOARD V. INSURANCE AGENTS, 361 U.S. 477, 497.  IN THE ABSENCE OF PROOF
OF UNLAWFUL MOTIVATION, THERE ARE MANY ECONOMIC WEAPONS WHICH AN
EMPLOYER MAY USE THAT EITHER INTERFERE IN SOME MEASURE WITH CONCERTED
EMPLOYEE ACTIVITIES, OR WHICH ARE IN SOME DEGREE DISCRIMINATORY AND
DISCOURAGE UNION MEMBERSHIP, AND YET THE USE OF SUCH ECONOMIC WEAPONS
DOES NOT CONSTITUTE CONDUCT THAT IS WITHIN THE PROHIBITION OF EITHER
SEC.  8(A)(1) OR SEC. 8(A)(3).  SEE, E.G., LABOR BOARD V. MACKAY RADIO
& TELEGRAPH CO., SUPRA; LABOR BOARD V. DALTON BRICK & TILE CORP., 301
F.2D 886, 896.  EVEN THE BOARD CONCEDES THAT AN EMPLOYER MAY
LEGITIMATELY BLUNT THE EFFECTIVENESS OF AN ANTICIPATED STRIKE BY
STOCKPILING INVENTORIES, READJUSTING CONTRACT SCHEDULES, OR
TRANSFERRING WORK FROM ONE PLANT TO ANOTHER, EVEN IF HE THEREBY MAKES
HIMSELF "VIRTUALLY STRIKEPROOF."  (FN3) AS A GENERAL MATTER HE MAY
COMPLETELY LIQUIDATE HIS BUSINESS WITHOUT VIOLATING EITHER SEC. 8(A)(1)
OR SEC. 8(A)(3), WHATEVER THE IMPACT OF HIS ACTION ON CONCERTED
EMPLOYEE ACTIVITIES.  TEXTILE WORKERS V. DARLINGTON MFG. CO., NOS. 37
AND 41, DECIDED TODAY, ANTE, P. 263.  SPECIFICALLY, HE MAY IN VARIOUS
CIRCUMSTANCES USE THE LOCKOUT AS A LEGITIMATE ECONOMIC WEAPON.  SEE,
E.G., LABOR BOARD V. TRUCK DRIVERS UNION, SUPRA; LABOR BOARD V. DALTON
BRICK & TILE CORP., SUPRA; LEONARD V. LABOR BOARD, 205 F.2D 355; BETTS
CADILLAC OLDS, INC., 96 N.L.R.B. 268; INTERNATIONAL SHOE CO., 93
N.L.R.B. 907; PEPSI-COLA BOTTLING CO., 72 N.L.R.B. 601, 602; DULUTH
BOTTLING ASSN., 48 N.L.R.B. 1335; LINK-BELT CO., 26 N.L.R.B. 227.  AND
IN AMERICAN SHIP BUILDING CO. V. LABOR BOARD, NO. 255, DECIDED TODAY,
POST, P. 300, WE HOLD THAT A LOCKOUT IS NOT AN UNFAIR LABOR PRACTICE
SIMPLY BECAUSE USED BY AN EMPLOYER TO BRING PRESSURE TO BEAR IN SUPPORT
OF HIS BARGAINING POSITION AFTER AN IMPASSE IN BARGAINING NEGOTIATIONS
HAS BEEN REACHED. 

IN THE CIRCUMSTANCES OF THIS CASE, WE DO NOT SEE HOW THE CONTINUED
OPERATIONS OF RESPONDENTS AND THEIR USE OF TEMPORARY REPLACEMENTS IMPLY
HOSTILE MOTIVATION ANY MORE THAN THE LOCKOUT ITSELF; NOR DO WE SEE HOW
THEY ARE INHERENTLY MORE DESTRUCTIVE OF EMPLOYEE RIGHTS.  RATHER, THE
COMPELLING INFERENCE IS THAT THIS WAS ALL PART AND PARCEL OF
RESPONDENTS' DEFENSIVE MEASURE TO PRESERVE THE MULTIEMPLOYER GROUP IN
THE FACE OF THE WHIPSAW STRIKE.  SINCE FOOD JET LEGITIMATELY CONTINUED
BUSINESS OPERATIONS, IT IS ONLY REASONABLE TO REGARD RESPONDENTS'
ACTION AS EVINCING CONCERN THAT THE INTEGRITY OF THE EMPLOYER GROUP WAS
THREATENED UNLESS THEY ALSO MANAGED TO STAY OPEN FOR BUSINESS DURING
THE LOCKOUT.  FOR WITH FOOD JET OPEN FOR BUSINESS AND RESPONDENTS'
STORES CLOSED, THE PROSPECT THAT THE WHIPSAW STRIKE WOULD SUCCEED IN
BREAKING UP THE EMPLOYER ASSOCIATION WAS NOT AT ALL FANCIFUL.  THE
RETAIL FOOD INDUSTRY IS VERY COMPETITIVE AND REPETITIVE PATRONAGE IS
HIGHLY IMPORTANT.  FACED WITH THE PROSPECT OF A LOSS OF PATRONAGE TO
FOOD JET, IT IS LOGICAL THAT RESPONDENTS SHOULD HAVE BEEN CONCERNED
THAT ONE OR MORE OF THEIR NUMBER MIGHT BOLT THE GROUP AND COME TO TERMS
WITH THE LOCAL, THUS DESTROYING THE COMMON FRONT ESSENTIAL TO
MULTIEMPLOYER BARGAINING.  THE COURT OF APPEALS CORRECTLY PICTURED THE
RESPONDENTS' DILEMMA IN SAYING, "IF  ... THE STRUCK EMPLOYER DOES
CHOOSE TO OPERATE WITH REPLACEMENTS AND THE OTHER EMPLOYERS CANNOT
REPLACE AFTER LOCKOUT, THE ECONOMIC ADVANTAGE PASSES TO THE STRUCK
MEMBER, THE NON-STRUCK MEMBERS ARE DETERRED IN EXERCISING THE DEFENSIVE
LOCKOUT, AND THE WHIPSAW STRIKE  ...  ENJOYS AN ALMOST INESCAPABLE
PROSPECT OF SUCCESS."  319 F.2D, AT 11.  CLEARLY RESPONDENTS' CONTINUED
OPERATIONS WITH THE USE OF TEMPORARY REPLACEMENTS FOLLOWING THE LOCKOUT
WERE WHOLLY CONSISTENT WITH A LEGITIMATE BUSINESS PURPOSE. 

NOR ARE WE PERSUADED BY THE BOARD'S ARGUMENT THAT JUSTIFICATION FOR
THE INFERENCE OF HOSTILE MOTIVATION APPEARS IN THE RESPONDENTS' USE OF
TEMPORARY EMPLOYEES RATHER THAN SOME OF THE REGULAR EMPLOYEES.  IT IS
NOT COMMONSENSE, WE THINK, TO SAY THAT THE REGULAR EMPLOYEES WERE
"WILLING TO WORK AT THE EMPLOYERS' TERMS."  137 N.L.R.B., AT 76.  IT
SEEMS PROBABLE THAT THIS "WILLINGNESS" WAS MOTIVATED AS MUCH BY THEIR
UNDERSTANDABLE DESIRE TO FURTHER THE OBJECTIVE OF THE WHIPSAW STRIKE -
TO BREAK THROUGH THE EMPLOYERS' UNITED FRONT BY FORCING FOOD JET TO
ACCEPT THE LOCAL'S TERMS - AS IT WAS BY A DESIRE TO WORK FOR THE
EMPLOYERS UNDER THE EXISTING UNACCEPTABLE TERMS.  AS THE BOARD'S
DISSENTING MEMBERS PUT IT, "THESE EMPLOYEES ARE WILLING ONLY TO RECEIVE
WAGES WHILE THEIR BRETHREN IN THE REST OF THE ASSOCIATIONWIDE UNIT ARE
EXERTING WHIPSAW PRESSURE ON ONE EMPLOYER TO GAIN BENEFITS THAT WILL
ULTIMATELY ACCRUE TO ALL EMPLOYEES IN THE ASSOCIATIONWIDE UNIT,
INCLUDING THOSE HERE LOCKED OUT."  137 N.L.R.B., AT 78.  MOREOVER, THE
COURSE OF ACTION TO WHICH THE BOARD WOULD LIMIT THE RESPONDENTS WOULD
FORCE THEM INTO THE POSITION OF AIDING AND ABETTING THE SUCCESS OF THE
WHIPSAW STRIKE AND CONSEQUENTLY WOULD RENDER "LARGELY ILLUSORY,"  137
N.L.R.B., AT 78-79, THE RIGHT OF LOCKOUT RECOGNIZED BY BUFFALO LINEN;
THE RIGHT WOULD BE MEANINGLESS IF BARRED TO NONSTRUCK STORES THAT FIND
IT NECESSARY TO OPERATE BECAUSE THE STRUCK STORE DOES SO. 

THE BOARD'S FINDING OF A SEC. 8(A)(1) VIOLATION EMPHASIZED THE IMPACT
OF RESPONDENTS' CONDUCT UPON THE EFFECTIVENESS OF THE WHIPSAW STRIKE. 
IT IS NO DOUBT TRUE THAT THE COLLECTIVE STRENGTH OF THE STORES TO
RESIST THAT STRIKE IS MAINTAINED, AND EVEN INCREASED, WHEN ALL STORES
STAY OPEN WITH TEMPORARY REPLACEMENTS.  THE PRESSURES ON THE EMPLOYEES
ARE NECESSARILY GREATER WHEN NONE OF THE UNION EMPLOYEES IS WORKING AND
THE STORES REMAIN OPEN.  BUT THESE PRESSURES ARE NO MORE THAN THE
RESULT OF THE LOCAL'S INABILITY TO MAKE EFFECTIVE USE OF THE WHIPSAW
TACTIC.  MOREOVER, THESE EFFECTS ARE NO DIFFERENT FROM THOSE THAT
RESULT FROM THE LEGITIMATE USE OF ANY ECONOMIC WEAPON BY AN EMPLOYER. 
CONTINUED OPERATIONS WITH THE USE OF TEMPORARY REPLACEMENTS MAY RESULT
IN THE FAILURE OF THE WHIPSAW STRIKE, BUT THIS DOES NOT MEAN THAT THE
EMPLOYERS' CONDUCT IS DEMONSTRABLY SO DESTRUCTIVE OF EMPLOYEE RIGHTS
AND SO DEVOID OF SIGNIFICANT SERVICE TO ANY LEGITIMATE BUSINESS END
THAT IT CANNOT BE TOLERATED CONSISTENTLY WITH THE ACT.  CERTAINLY THEN,
IN THE ABSENCE OF EVIDENTIARY FINDINGS OF HOSTILE MOTIVE, THERE IS NO
SUPPORT FOR THE CONCLUSION THAT RESPONDENTS VIOLATED SEC. 8(A)(1). 

NOR DOES THE RECORD SHOW ANY BASIS FOR CONCLUDING THAT RESPONDENTS
VIOLATED SEC. 8(A)(3).  UNDER THAT SECTION BOTH DISCRIMINATION AND A
RESULTING DISCOURAGEMENT OF UNION MEMBERSHIP ARE NECESSARY, BUT THE
ADDED ELEMENT OF UNLAWFUL INTENT IS ALSO REQUIRED.  IN BUFFALO LINEN
ITSELF THE EMPLOYERS TREATED THE LOCKED-OUT EMPLOYEES LESS FAVORABLY
BECAUSE OF THEIR UNION MEMBERSHIP, AND THIS MAY HAVE TENDED TO
DISCOURAGE CONTINUED MEMBERSHIP, BUT WE REJECTED THE NOTION THAT THE
USE OF THE LOCKOUT VIOLATED THE STATUTE.  THE DISCRIMINATORY ACT IS NOT
BY ITSELF UNLAWFUL UNLESS INTENDED TO PREJUDICE THE EMPLOYEES' POSITION
BECAUSE OF THEIR MEMBERSHIP IN THE UNION; SOME ELEMENT OF ANTIUNION
ANIMUS IS NECESSARY.  SEE RADIO OFFICERS' UNION V. LABOR BOARD, 347
U.S. 17, 42-44; LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S.
1, AT 46.  WE HAVE DETERMINED THAT THE "REAL MOTIVE" OF THE EMPLOYER IN
AN ALLEGED SEC. 8(A)(3) VIOLATION IS DECISIVE, ASSOCIATED PRESS V.
LABOR BOARD, 301 U.S. 103, 132; IF ANY DOUBT STILL PERSISTED, WE LAID
IT TO REST IN RADIO OFFICERS' UNION V. LABOR BOARD, SUPRA, WHERE WE
REVIEWED THE LEGISLATIVE HISTORY OF THE PROVISION AND CONCLUDED THAT
CONGRESS CLEARLY INTENDED THE EMPLOYER'S PURPOSE IN DISCRIMINATING TO
BE CONTROLLING.  ID., AT 44.  SEE ALSO TEXTILE WORKERS V. DARLINGTON
MFG. CO., ANTE, AT 275, 276; AMERICAN SHIP BUILDING CO. V. LABOR BOARD,
POST, AT 311-313; LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS V.
LABOR BOARD, 365 U.S. 667, 674-676.    WE RECOGNIZE THAT, ANALOGOUS TO
THE DETERMINATION OF UNFAIR PRACTICES UNDER SEC. 8(A)(1), WHEN AN
EMPLOYER PRACTICE IS INHERENTLY DESTRUCTIVE OF EMPLOYEE RIGHTS AND IS
NOT JUSTIFIED BY THE SERVICE OF IMPORTANT BUSINESS ENDS, NO SPECIFIC
EVIDENCE OF INTENT TO DISCOURAGE UNION MEMBERSHIP IS NECESSARY TO
ESTABLISH A VIOLATION OF SEC. 8(A)(3).  THIS PRINCIPLE, WE HAVE SAID,
IS "BUT AN APPLICATION OF THE COMMON-LAW RULE THAT A MAN IS HELD TO
INTEND THE FORESEEABLE CONSEQUENCES OF HIS CONDUCT."  RADIO OFFICERS'
UNION V. LABOR BOARD, SUPRA, AT 45.  FOR EXAMPLE, IN LABOR BOARD V.
ERIE RESISTOR CORP., SUPRA, WE HELD THAT AN EMPLOYER'S ACTION IN
AWARDING SUPERSENIORITY TO EMPLOYEES WHO WORKED DURING A STRIKE WAS
DISCRIMINATORY CONDUCT THAT CARRIED WITH IT ITS OWN INDICIA OF IMPROPER
INTENT.  THE ONLY REASONABLE INFERENCE THAT COULD BE DRAWN BY THE BOARD
FROM THE AWARD OF SUPERSENIORITY - BALANCING THE PREJUDICIAL EFFECT
UPON THE EMPLOYEES AGAINST ANY ASSERTED BUSINESS PURPOSE - WAS THAT IT
WAS DIRECTED AGAINST THE STRIKING EMPLOYEES BECAUSE OF THEIR UNION
MEMBERSHIP; CONDUCT SO INHERENTLY DESTRUCTIVE OF EMPLOYEE INTERESTS
COULD NOT BE SAVED FROM ILLEGALITY BY AN ASSERTED OVERRIDING BUSINESS
PURPOSE PURSUED IN GOOD FAITH.  BUT WHERE, AS HERE, THE TENDENCY TO
DISCOURAGE UNION MEMBERSHIP IS COMPARATIVELY SLIGHT, AND THE EMPLOYERS'
CONDUCT IS REASONABLY ADAPTED TO ACHIEVE LEGITIMATE BUSINESS ENDS OR TO
DEAL WITH BUSINESS EXIGENCIES, WE ENTER INTO AN AREA WHERE THE IMPROPER
MOTIVATION OF THE EMPLOYERS MUST BE ESTABLISHED BY INDEPENDENT
EVIDENCE.  WHEN SO ESTABLISHED, ANTIUNION MOTIVATION WILL CONVERT AN
OTHERWISE ORDINARY BUSINESS ACT INTO AN UNFAIR LABOR PRACTICE.  LABOR
BOARD V. ERIE RESISTOR CORP., SUPRA, AT 227, AND CASES THERE CITED. 

WE AGREE WITH THE COURT OF APPEALS THAT RESPONDENTS' CONDUCT HERE
CLEARLY FITS INTO THE LATTER CATEGORY, WHERE ACTUAL SUBJECTIVE INTENT
IS DETERMINATIVE, AND WHERE THE BOARD MUST FIND FROM EVIDENCE
INDEPENDENT OF THE MERE CONDUCT INVOLVED THAT THE CONDUCT WAS PRIMARILY
MOTIVATED BY AN ANTIUNION ANIMUS.  WHILE THE USE OF TEMPORARY NONUNION
PERSONNEL IN PREFERENCE TO THE LOCKED-OUT UNION MEMBERS IS
DISCRIMINATORY, WE THINK THAT ANY RESULTING TENDENCY TO DISCOURAGE
UNION MEMBERSHIP IS COMPARATIVELY REMOTE, AND THAT THIS USE OF
TEMPORARY PERSONNEL CONSTITUTES A MEASURE REASONABLY ADAPTED TO THE
EFFECTUATION OF A LEGITIMATE BUSINESS END.  HERE DISCONTENT ON THE PART
OF THE LOCAL'S MEMBERSHIP IN ALL LIKELIHOOD IS ATTRIBUTABLE LARGELY TO
THE FACT THAT THE MEMBERSHIP WAS LOCKED OUT AS THE RESULT OF THE
LOCAL'S WHIPSAW STRATAGEM.  BUT THE LOCKOUT ITSELF IS CONCEDEDLY WITHIN
THE RULE OF BUFFALO LINEN.  WE THINK THAT THE ADDED DISSATISFACTION,
WITH ITS RESULTANT PRESSURE ON MEMBERSHIP, ATTRIBUTABLE TO THE FACT
THAT THE NONSTRUCK EMPLOYERS REMAIN IN BUSINESS WITH TEMPORARY
REPLACEMENTS IS COMPARATIVELY INSUBSTANTIAL.  FIRST, THE REPLACEMENTS
WERE EXPRESSLY USED FOR THE DURATION OF THE LABOR DISPUTE ONLY; THUS,
THE DISPLACED EMPLOYEES COULD NOT HAVE LOOKED UPON THE REPLACEMENTS AS
THREATENING THEIR JOBS.  AT MOST THE UNION WOULD BE FORCED TO
CAPITULATE AND RETURN ITS MEMBERS TO WORK ON TERMS WHICH, WHILE NOT AS
DESIRABLE AS HOPED FOR, WERE STILL BETTER THAN UNDER THE OLD CONTRACT. 
SECOND, THE MEMBERSHIP, THROUGH ITS CONTROL OF UNION POLICY, COULD END
THE DISPUTE AND TERMINATE THE LOCKOUT AT ANY TIME SIMPLY BY AGREEING TO
THE EMPLOYERS' TERMS AND RETURNING TO WORK ON A REGULAR BASIS.  THIRD,
IN LIGHT OF THE UNION-SHOP PROVISION THAT HAD BEEN CARRIED FORWARD INTO
THE NEW CONTRACT FROM THE OLD COLLECTIVE-BARGAINING AGREEMENT, IT WOULD
APPEAR THAT A UNION MEMBER WOULD HAVE NOTHING TO GAIN, AND MUCH TO
LOSE, BY QUITTING THE UNION.  UNDER ALL THESE CIRCUMSTANCES, WE CANNOT
SAY THAT THE EMPLOYERS' CONDUCT HAD ANY GREAT TENDENCY TO DISCOURAGE
UNION MEMBERSHIP.  NOT ONLY WAS THE PROSPECT OF DISCOURAGEMENT OF
MEMBERSHIP COMPARATIVELY REMOTE, BUT THE RESPONDENTS' ATTEMPT TO REMAIN
OPEN FOR BUSINESS WITH THE HELP OF TEMPORARY REPLACEMENTS WAS A MEASURE
REASONABLY ADAPTED TO THE ACHIEVEMENT OF A LEGITIMATE END - PRESERVING
THE INTEGRITY OF THE MULTIEMPLOYER BARGAINING UNIT.  (FN4) 

WHEN THE RESULTING HARM TO EMPLOYEE RIGHTS IS THUS COMPARATIVELY
SLIGHT, AND A SUBSTANTIAL AND LEGITIMATE BUSINESS END IS SERVED, THE
EMPLOYERS' CONDUCT IS PRIMA FACIE LAWFUL.  UNDER THESE CIRCUMSTANCES
THE FINDING OF AN UNFAIR LABOR PRACTICE UNDER SEC. 8(A)(3) REQUIRES A
SHOWING OF IMPROPER SUBJECTIVE INTENT.  HERE, THERE IS NO ASSERTION BY
EITHER THE UNION OR THE BOARD THAT THE RESPONDENTS WERE MOTIVATED BY
ANTIUNION ANIMUS, NOR IS THERE ANY EVIDENCE THAT THIS WAS THE CASE.  ON
THE CONTRARY, THE BACKGROUND OF THE EMPLOYER ASSOCIATION'S RELATIONS
WITH THE UNION AND ALL THE CIRCUMSTANCES OF THE RESPONDENTS' BEHAVIOR
DURING THE DISPUTE TEND TO SUPPORT THE CONTRARY CONCLUSION:  THE
HISTORY OF LABOR RELATIONS BETWEEN THE EMPLOYERS AND THE LOCAL DIVULGES
THAT THE RELATIONSHIP HAS ALWAYS BEEN MORE THAN AMICABLE; UNION-SHOP
PROVISIONS HAVE BEEN INCORPORATED IN THE COLLECTIVE-BARGAINING
AGREEMENT BETWEEN THE LOCAL AND THE EMPLOYERS FOR MANY YEARS; IN THESE
VERY NEGOTIATIONS, THE EMPLOYERS' ASSOCIATION WAIVED THE FAILURE OF THE
LOCAL TO GIVE TIMELY NOTICE OF ITS DESIRE TO BARGAIN OVER NEW TERMS OF
EMPLOYMENT AND CONSENTED TO HEAR THE LOCAL'S CLAIMS AT THE BARGAINING
TABLE; THE RECORD CONTAINS UNDISPUTED TESTIMONY BY THE STORE OWNERS
THAT THEY HAD NO BONE TO PICK WITH THE LOCAL, THAT ON THE CONTRARY THEY
THOUGHT THAT UNIONS WERE A GOOD THING, BUT FELT FORCED TO TAKE ACTION
IN ORDER TO PRESERVE THE MULTIEMPLOYER GROUP FROM DISINTEGRATION AND TO
SAVE THEIR CONSIDERABLE STOCK OF PERISHABLE FOOD PRODUCE.  EVEN THE
STRUCK MEMBER OF THE ASSOCIATION DID NOT RESORT TO PERMANENT
REPLACEMENTS FOR THE STRIKING WORKERS, THOUGH IT COULD HAVE UNDER
MACKAY; RATHER IT SOUGHT TO RIDE OUT THE DISPUTE WITH TEMPORARY
REPLACEMENTS TO AVOID DEPRIVING THE REGULAR EMPLOYEES OF THEIR JOBS. 
THUS, NOT ONLY IS THERE ABSENT IN THE RECORD ANY INDEPENDENT EVIDENCE
OF IMPROPER MOTIVE, BUT THE RECORD CONTAINS POSITIVE EVIDENCE OF THE
EMPLOYERS' GOOD FAITH.  IN SUM, THE COURT OF APPEALS WAS REQUIRED TO
CONCLUDE THAT THERE WAS NOT SUFFICIENT EVIDENCE GATHERED FROM THE
RECORD AS A WHOLE TO SUPPORT THE BOARD'S FINDING THAT RESPONDENTS'
CONDUCT VIOLATES SEC. 8(A)(3).  SEE UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474. 

IT IS ARGUED, FINALLY, THAT THE BOARD'S DECISION IS WITHIN THE AREA
OF ITS EXPERT JUDGMENT AND THAT, IN SETTING IT ASIDE, THE COURT OF
APPEALS EXCEEDED THE AUTHORIZED SCOPE OF JUDICIAL REVIEW.  THIS
PROPOSITION RESTS UPON OUR STATEMENT IN BUFFALO LINEN THAT IN
RECONCILING THE CONFLICTING INTERESTS OF LABOR AND MANAGEMENT THE
BOARD'S DETERMINATION IS TO BE SUBJECTED TO "LIMITED JUDICIAL REVIEW." 
353 U.S., AT 96.  WHEN WE USED THE PHRASE "LIMITED JUDICIAL REVIEW" WE
DID NOT MEAN THAT THE BALANCE STRUCK BY THE BOARD IS IMMUNE FROM
JUDICIAL EXAMINATION AND REVERSAL IN PROPER CASES.  (FN5)  COURTS ARE
EXPRESSLY EMPOWERED TO ENFORCE, MODIFY OR SET ASIDE, IN WHOLE OR IN
PART, THE BOARD'S ORDERS, EXCEPT THAT THE FINDINGS OF THE BOARD WITH
RESPECT TO QUESTIONS OF FACT, IF SUPPORTED BY SUBSTANTIAL EVIDENCE ON
THE RECORD CONSIDERED AS A WHOLE, SHALL BE CONCLUSIVE.  NATIONAL LABOR
RELATIONS ACT, AS AMENDED, SECS. 10(E), (F), 29 U.S.C. SECS. 160(E),
(F) (1958 ED.).  COURTS SHOULD BE "SLOW TO OVERTURN AN ADMINISTRATIVE
DECISION," LABOR BOARD V. BABCOCK & WILCOX CO., 351 U.S. 105, 112, BUT
THEY ARE NOT LEFT "TO 'SHEER ACCEPTANCE' OF THE BOARD'S CONCLUSIONS,"
REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793, 803.  REVIEWING
COURTS ARE NOT OBLIGED TO STAND ASIDE AND RUBBER-STAMP THEIR AFFIRMANCE
OF ADMINISTRATIVE DECISIONS THAT THEY DEEM INCONSISTENT WITH A
STATUTORY MANDATE OR THAT FRUSTRATE THE CONGRESSIONAL POLICY UNDERLYING
A STATUTE.  SUCH REVIEW IS ALWAYS PROPERLY WITHIN THE JUDICIAL
PROVINCE, AND COURTS WOULD ABDICATE THEIR RESPONSIBILITY IF THEY DID
NOT FULLY REVIEW SUCH ADMINISTRATIVE DECISIONS.  OF COURSE DUE
DEFERENCE IS TO BE RENDERED TO AGENCY DETERMINATIONS OF FACT, SO LONG
AS THERE IS SUBSTANTIAL EVIDENCE TO BE FOUND IN THE RECORD AS A WHOLE. 
BUT WHERE, AS HERE, THE REVIEW IS NOT OF A QUESTION OF FACT, BUT OF A
JUDGMENT AS TO THE PROPER BALANCE TO BE STRUCK BETWEEN CONFLICTING
INTERESTS, "THE DEFERENCE OWED TO AN EXPERT TRIBUNAL CANNOT BE ALLOWED
TO SLIP INTO A JUDICIAL INERTIA WHICH RESULTS IN THE UNAUTHORIZED
ASSUMPTION BY AN AGENCY OF MAJOR POLICY DECISIONS PROPERLY MADE BY
CONGRESS."  AMERICAN SHIP BUILDING CO. V. LABOR BOARD, POST, AT 318. 

COURTS MUST, OF COURSE, SET ASIDE BOARD DECISIONS WHICH REST ON AN
"ERRONEOUS LEGAL FOUNDATION."  LABOR BOARD V. BABCOCK & WILCOX CO.,
SUPRA, AT 112-113.  CONGRESS HAS NOT GIVEN THE BOARD UNTRAMMELLED
AUTHORITY TO CATALOGUE WHICH ECONOMIC DEVICES SHALL BE DEEMED FREIGHTED
WITH INDICIA OF UNLAWFUL INTENT.  LABOR BOARD V. INSURANCE AGENTS,
SUPRA, AT 498.  IN DETERMINING HERE THAT THE RESPONDENTS' CONDUCT
CARRIED ITS OWN BADGE OF IMPROPER MOTIVE, THE BOARD'S DECISION, FOR THE
REASONS STATED, MISAPPLIED THE CRITERIA GOVERNING THE APPLICATION OF
SECS. 8(A)(1) AND (3).  SINCE THE ORDER THEREFORE RESTED ON AN
ERRONEOUS LEGAL FOUNDATION, THE COURT OF APPEALS PROPERLY REFUSED TO
ENFORCE IT.  (FN6)  AFFIRMED. 

FN1  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 8(A), 61 STAT.
140, 29 U.S.C. SEC.  158(A) (1958 ED.)  PROVIDES:  "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  ...  ." 

NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 7, 61 STAT. 140, 29
U.S.C. SEC. 157 (1958 ED.)  PROVIDES:  "EMPLOYEES SHALL HAVE THE RIGHT
TO SELF-ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, TO
BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, AND
TO ENGAGE IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION, AND SHALL ALSO HAVE THE
RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES EXCEPT TO THE
EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN AGREEMENT REQUIRING
MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT  ...
." 

FN2  FOOD JET USED SUPERVISORY PERSONNEL AND HIRED SOME "SACK BOYS";
RESPONDENT SAFEWAY STORES, WHICH OPERATED TWO STORES IN CARLSBAD,
CLOSED ONE AND TRANSFERRED ITS MANAGERIAL PERSONNEL TO THE OTHER;
RESPONDENT THRIFTY WAY FOOD STORES USED MANAGEMENT PERSONNEL AND THEIR
WIVES AND ALSO HIRED SOME PART-TIME "BOX BOYS"; RESPONDENT BROWN FOOD
STORE RELIED ON MANAGEMENT PERSONNEL AND THEIR RELATIVES, AND A "SACK
BOY" TRANSFERRED FROM AN OUT-OF-TOWN BRANCH STORE; RESPONDENT CASHWAY
FOOD STORES ALSO RELIED ON MANAGEMENT PERSONNEL AND THEIR RELATIVES AND
SOME TRANSFEREES FROM OUT-OF-TOWN BRANCHES. 

FN3  SEE BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN AMERICAN
SHIP BUILDING CO. V. LABOR BOARD, NO. 255, POST, P. 300, ALSO DECIDED
TODAY, AT P. 17.  SEE ALSO 76 HARV. L. REV. 1494, 1497. 

FN4  FOR A HISTORY OF REJECTION BY CONGRESS OF PROPOSALS TO LIMIT OR
OUTLAW MULTIEMPLOYER BARGAINING SEE BUFFALO LINEN, 353 U.S., AT 95-96. 

FN5  THIS IS EVIDENT FROM THE AUTHORITIES CITED IN BUFFALO LINEN, 353
U.S., AT 96, N. 28. 

IN LABOR BOARD V. BABCOCK & WILCOX CO., 351 U.S. 105, WE SET ASIDE,
AS RESTING ON AN ERRONEOUS LEGAL FOUNDATION, A BOARD DECISION FINDING
THAT THE EMPLOYER'S REFUSAL TO ALLOW DISTRIBUTION OF UNION LITERATURE
ON A COMPANY-OWNED PARKING LOT VIOLATED SEC. 8(A)(1).  IN REPUBLIC
AVIATION CORP. V. LABOR BOARD, 324 U.S. 793, WE SUSTAINED THE BOARD'S
DECISION BUT EMPHASIZED THAT JUDICIAL REVIEW IS CONTEMPLATED BY 29
U.S.C. SECS. 160(E), (F), 324 U.S., AT 799.  PHELPS DODGE CORP. V.
LABOR BOARD, 313 U.S. 177, INVOLVED A QUESTION OF REMEDY AS TO WHICH
THE STATUTE EXPRESSLY GRANTS THE BOARD BROAD AUTHORITY, 29 U.S.C.  SEC.
160(C).  SINCE BUFFALO LINEN NUMEROUS BOARD ORDERS HAVE BEEN SET ASIDE
AS OUTSIDE OF THE BOARD'S STATUTORY AUTHORITY.  SEE, E.G., LABOR BOARD
V. INSURANCE AGENTS, 361 U.S. 477; LABOR BOARD V. DRIVERS LOCAL UNION,
362 U.S. 274; LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS V.
LABOR BOARD, 365 U.S. 667; LABOR BOARD V. FRUIT PACKERS, 377 U.S. 58. 
EVEN WHERE THE BOARD IS SUSTAINED, ITS ANALYSIS IN SUPPORT OF ITS
CONCLUSION IS SUBJECTED TO FULL, INDEPENDENT JUDICIAL REVIEW.  SEE
LABOR BOARD V. ERIE RESISTOR CORP., SUPRA. 

FN6  WE DO NOT HERE DECIDE WHETHER THE CASE WOULD BE THE SAME HAD THE
STRUCK EMPLOYER EXERCISED ITS PREROGATIVE TO HIRE PERMANENT
REPLACEMENTS FOR THE STRIKERS UNDER OUR RULE IN LABOR BOARD V. MACKAY
RADIO & TELEGRAPH CO., 304 U.S. 333, AND THE NONSTRUCK EMPLOYERS HAD
THEN HIRED PERMANENT REPLACEMENTS FOR THEIR LOCKED-OUT EMPLOYEES. 

MR. JUSTICE GOLDBERG, WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

I AGREE WITH THE COURT THAT, GIVEN THE BUFFALO LINEN CASE, LABOR
BOARD V. TRUCK DRIVERS UNION, 353 U.S. 87, AND APPLYING IT IN LIGHT OF
THE ACTUALITIES OF INDUSTRIAL RELATIONS, THE EMPLOYERS' CONDUCT HERE IS
SHOWN TO BE JUSTIFIED AND NECESSARY TO PRESERVE THE INTEGRITY OF THE
EMPLOYERS' BARGAINING UNIT.  AFTER THE UNION ATTEMPTED A WHIPSAW STRIKE
AGAINST ONE MEMBER OF THE MULTIEMPLOYER BARGAINING UNIT, THE OTHER
MEMBERS LOCKED OUT THEIR EMPLOYEES.  THE STRUCK EMPLOYER ATTEMPTED TO
CARRY ON BUSINESS BY USING MANAGEMENT PERSONNEL, RELATIVES OF SUCH
PERSONNEL, AND A FEW TEMPORARY EMPLOYEES.  TO AVOID THE WHIPSAW EFFECT
OF THE STRIKE, THE NONSTRUCK EMPLOYERS THEN DID THE SAME.  DURING THE
PERIOD OF THE LOCKOUT, ALL OF THE EMPLOYERS, STRUCK AS WELL AS
NONSTRUCK, BARGAINED WITH THE UNION AND, WHEN AGREEMENT WAS REACHED, IN
ALL CASES THE TEMPORARY EMPLOYEES WERE DISMISSED AND THE UNION
EMPLOYEES RETURNED TO THEIR JOBS.    AS THE COURT SEEMS TO RECOGNIZE,
ANTE, P. 292, N. 6, THIS WOULD BE AN ENTIRELY DIFFERENT CASE HAD THE
NONSTRUCK EMPLOYERS LOCKED OUT THEIR EMPLOYEES AND HIRED PERMANENT
REPLACEMENTS EVEN IF THE STRUCK EMPLOYER HAD EXERCISED HIS RIGHT TO
HIRE PERMANENT REPLACEMENTS UNDER THE DOCTRINE OF LABOR BOARD V. MACKAY
RADIO & TELEGRAPH CO., 304 U.S. 333.  IF THE LABOR BOARD DETERMINED IN
SUCH A CASE THAT THE INTERFERENCE WITH EMPLOYEE RIGHTS WAS NOT
JUSTIFIED BY THE LEGITIMATE ECONOMIC INTERESTS OF THE EMPLOYER, THE
LABOR BOARD DETERMINATION MIGHT WELL BE CONTROLLING.  SEE MY CONCURRING
OPINION IN AMERICAN SHIP BUILDING CO. V. LABOR BOARD, POST, AT 327. 
CF. LABOR BOARD V. ERIE RESISTOR CORP., 373 U.S. 221.  THERE WOULD BE
GRAVE DOUBTS AS TO WHETHER THE ACT OF LOCKING OUT EMPLOYEES AND HIRING
PERMANENT REPLACEMENTS IS JUSTIFIED BY ANY LEGITIMATE INTEREST OF THE
NONSTRUCK EMPLOYERS, FOR BUFFALO LINEN MAKES CLEAR THAT THE TEST IN
SUCH A SITUATION IS NOT WHETHER PARITY IS ACHIEVED BETWEEN STRUCK AND
NONSTRUCK EMPLOYERS, BUT, RATHER, WHETHER THE NONSTRUCK EMPLOYERS'
ACTIONS ARE NECESSARY TO COUNTERACT THE WHIPSAW EFFECTS OF THE STRIKE
AND TO PRESERVE THE EMPLOYER BARGAINING UNIT.  SINCE IN THIS CASE THE
NONSTRUCK EMPLOYERS DID NOTHING MORE THAN HIRE TEMPORARY REPLACEMENTS,
AN ACTIVITY NECESSARY TO COUNTER WHIPSAWING BY THE UNION AND TO
PRESERVE THE BARGAINING UNIT, I AGREE THAT, APPLYING BUFFALO LINEN, THE
JUDGMENT OF THE COURT OF APPEALS SHOULD BE AFFIRMED. 

MR. JUSTICE WHITE, DISSENTING. 

I CANNOT AGREE WITH THE SEVERE RESTRICTIONS WHICH THE COURT IMPOSES
ON THE BOARD'S ROLE IN DETERMINING THE EMPLOYER CONDUCT BANNED BY SECS.
8(A)(1) AND (3) OF THE NLRA.  THIS COURT HAS LONG RECOGNIZED THAT "A
STATUTE EXPRESSIVE OF SUCH LARGE PUBLIC POLICY AS THAT ON WHICH THE
NATIONAL LABOR RELATIONS BOARD IS BASED MUST BE BROADLY PHRASED AND
NECESSARILY CARRIES WITH IT THE TASK OF ADMINISTRATIVE APPLICATION,"
PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194, AND HAS
REPEATEDLY HELD THAT THE BOARD MAY FIND SOME CONDUCT SUFFICIENTLY
DESTRUCTIVE OF CONCERTED ACTIVITIES AND UNION MEMBERSHIP AS TO FALL
WITHIN THE BROAD LANGUAGE OF SECS. 8(A)(1) AND (3) NOTWITHSTANDING THAT
THE EMPLOYER HAS A BUSINESS JUSTIFICATION FOR HIS ACTIONS.  REPUBLIC
AVIATION CORP. V. LABOR BOARD, 324 U.S. 793; LABOR BOARD V. TRUCK
DRIVERS UNION, 353 U.S. 87 (BUFFALO LINEN); LABOR BOARD V. ERIE
RESISTOR CORP., 373 U.S. 221; LABOR BOARD V. BURNUP & SIMS, INC., 379
U.S. 21.  THE BOARD HOLDS THAT A LOCKOUT TOGETHER WITH THE HIRING OF
REPLACEMENTS BY THE NONSTRUCK EMPLOYERS OF A MULTIEMPLOYER BARGAINING
UNIT VIOLATES SECS. 8(A)(1) AND (3).  THE COURT DECIDES THAT THIS
HOLDING IS AN "UNAUTHORIZED ASSUMPTION BY AN AGENCY OF MAJOR POLICY
DECISIONS PROPERLY MADE BY CONGRESS," ANTE, AT 292, AND THAT THE
"PROPER BALANCE TO BE STRUCK BETWEEN CONFLICTING INTERESTS" REQUIRES
AFFIRMANCE OF THE DENIAL OF ENFORCEMENT OF THE BOARD'S ORDER.  THIS
DECISION REPRESENTS A DEPARTURE FROM THE MANY DECISIONS OF THIS COURT
HOLDING THAT THE BOARD HAS PRIMARY RESPONSIBILITY TO WEIGH THE INTEREST
OF EMPLOYEES IN CONCERTED ACTIVITIES AGAINST THAT OF THE EMPLOYER IN
OPERATING HIS BUSINESS, PHELPS DODGE, 313 U.S. 177; BUFFALO LINEN, 353
U.S. 87, 95; ERIE RESISTOR, 373 U.S. 221; BURNUP & SIMS, 379 U.S. 21. 
THE BOARD'S DISCRETION UNDER THESE SECTIONS IS NOT WITHOUT SUBSTANTIAL
LIMITS IMPOSED BY THE POLICY OF THE ACT AND THE REQUIREMENT THAT THE
BOARD "DISCLOSE THE BASIS OF ITS ORDER" AND "GIVE CLEAR INDICATION THAT
IT HAS EXERCISED THE DISCRETION WITH WHICH CONGRESS HAS EMPOWERED IT." 
PHELPS DODGE, 313 U.S. 177, 197; CF. BURLINGTON TRUCK LINES V. UNITED
STATES, 371 U.S. 156, 168.  BUT IN MY VIEW THE BOARD HAS SET OUT THE
BASIS AND REQUISITE FINDINGS FOR ITS ORDER IN THIS CASE AND HAS NOT
EXCEEDED ITS POWER IN FINDING THE LOCKOUT AND REPLACEMENT OF UNION
EMPLOYEES AN UNFAIR LABOR PRACTICE. 

THE COURT REASONS THAT BUFFALO LINEN GAVE THE NONSTRUCK EMPLOYER IN A
MULTIEMPLOYER UNIT A "RIGHT" TO LOCK OUT WHENEVER A MEMBER OF THE UNIT
IS STRUCK SO THAT A PARITY OF ECONOMIC ADVANTAGE OR DISADVANTAGE
BETWEEN THE STRUCK AND NONSTRUCK EMPLOYERS CAN BE MAINTAINED.  IN ORDER
TO MAINTAIN PARITY WHERE THE STRUCK EMPLOYER HIRES REPLACEMENTS, THE
NONSTRUCK EMPLOYERS MUST ALSO BE FREE TO HIRE REPLACEMENTS, LEST THE
RIGHT TO LOCK OUT TO PROTECT THE UNIT BE ILLUSORY.  AND THEY NEED NOT
OFFER THESE JOBS TO THE LOCKED-OUT EMPLOYEES DESIRING TO WORK, LEST THE
PARITY BETWEEN THE STRUCK AND NONSTRUCK EMPLOYERS BE LOST AND THE RIGHT
TO LOCK OUT BE MEANINGLESS.  IF THIS REASONING IS SOUND, THE NONSTRUCK
EMPLOYERS CAN NOT ONLY LOCK OUT EMPLOYEES WHO BELONG TO THE UNION
BECAUSE OF THEIR UNION MEMBERSHIP BUT ALSO HIRE PERMANENT AS WELL AS
TEMPORARY NONUNION REPLACEMENTS WHENEVER THE STRUCK EMPLOYER HIRES SUCH
REPLACEMENTS, FOR PARITY MAY WELL SO REQUIRE.  BUT I CANNOT ACCEPT THIS
REASONING. 

ONE, BUFFALO LINEN ESTABLISHED NO UNQUALIFIED "RIGHT" OF EMPLOYERS IN
A MULTIEMPLOYER UNIT TO LOCK OUT.  RATHER IT HELD THAT THE BOARD WAS
WELL WITHIN THE POLICY AND LANGUAGE OF THE ACT IN FINDING NO UNFAIR
LABOR PRACTICE IN THE NONSTRUCK MEMBERS' CEASING OPERATIONS AFTER THE
UNION HAD SUCCESSFULLY SHUT DOWN THE OPERATIONS OF ONE OF THE
EMPLOYERS.  ALTHOUGH A DEPARTURE FROM THE BOARD'S GENERAL BAN ON
LOCKOUTS BECAUSE OF THEIR SEVERE EFFECT ON PROTECTED EMPLOYEE RIGHTS,
THE BOARD FOUND SUCH A LOCKOUT JUSTIFIED BY THE UNION-IMPOSED PRESSURE
ON THE EMPLOYER UNIT WHERE ONE EMPLOYER COULD NOT OPERATE AND THE
OTHERS MAINTAINED FULL OPERATIONS.  THE BOARD DECIDED THAT THE ACT DID
NOT REQUIRE THE EMPLOYERS TO CONTRIBUTE TO THIS PRESSURE BY MAINTAINING
FULL OPERATIONS. 

TWO, THE THREAT TO THE INTEGRITY OF THE MULTIEMPLOYER UNIT, THE
CONSIDERATION THAT WAS DECISIVE IN BUFFALO LINEN, IS OBVIOUSLY VERY
DIFFERENT WHERE THE STRUCK EMPLOYER CONTINUES OPERATIONS WITH
REPLACEMENTS; IT CERTAINLY CANNOT BE ASSUMED THAT THE STRUCK EMPLOYER
OPERATING WITH REPLACEMENTS IS AT THE SAME DISADVANTAGE VIS-A-VIS THE
NONSTRUCK EMPLOYERS AS THE EMPLOYER IN BUFFALO LINEN WHOSE OPERATIONS
WERE TOTALLY SHUT DOWN BY THE UNION.  INDEED, THERE WAS NO SHOWING HERE
THAT THE STRUCK EMPLOYER WAS SUBSTANTIALLY DISADVANTAGED AT ALL, AND
THE BOARD FOUND THAT THERE WAS "NO ECONOMIC NECESSITY  ...  FOR THE
OTHER MEMBERS SHUTTING DOWN."  137 N.L.R.B. 73, AT 77.  THE COURT MAKES
IRRELEVANT THE CONSIDERATION THAT JUSTIFIED THE LOCKOUT IN BUFFALO
LINEN - THE EFFECT OF THE SINGLE EMPLOYER STRIKE ON THE UNIT - ON THE
FAULTY PREMISE THAT BUFFALO LINEN ESTABLISHED THE NONSTRUCK MEMBERS'
RIGHT TO LOCK OUT.  NEITHER THE BOARD NOR THIS COURT SAID THE RIGHT TO
LOCK OUT INELUCTABLY FOLLOWS FROM A SINGLE EMPLOYER STRIKE. 

THREE, THE DISPARITY BETWEEN THE STRUCK EMPLOYER WHO RESUMES
OPERATIONS AND THE NONSTRUCK EMPLOYERS WHO CHOOSE TO LOCK OUT TO
MAINTAIN A UNITED FRONT IS CAUSED BY THE UNILATERAL ACTION OF ONE OF
THE EMPLOYER MEMBERS OF THE UNIT AND NOT BY THE UNION'S WHIPSAWING
TACTIC.  THE INTEGRITY OF THE MULTIEMPLOYER UNIT MAY BE IMPORTANT, BUT
SURELY THAT CONSIDERATION CANNOT JUSTIFY EMPLOYER TANDEM ACTION
DESTRUCTIVE OF CONCERTED ACTIVITY. 

FOUR, THE COURT ASSERTS THAT THE RIGHT OF NONSTRUCK EMPLOYERS TO HIRE
TEMPORARY REPLACEMENTS, AND TO REFUSE TO HIRE UNION MEN, IS BUT A
CONCOMITANT OF THE RIGHT TO LOCK OUT TO PRESERVE THE MULTIEMPLOYER
GROUP.  THIS SANCTIFICATION OF THE MULTIEMPLOYER UNIT IGNORES THE
FUNDAMENTAL RULE THAT AN EMPLOYER MAY NOT DISPLACE UNION MEMBERS WITH
NONUNION MEMBERS SOLELY ON ACCOUNT OF UNION MEMBERSHIP, THE PROTOTYPE
OF DISCRIMINATION UNDER SEC. 8(A)(3), LABOR BOARD V. MACKAY RADIO &
TELEGRAPH CO., 304 U.S. 333, AND MAY NOT MAINTAIN OPERATIONS AND REFUSE
TO RETAIN OR HIRE NONSTRIKING UNION MEMBERS, NOTWITHSTANDING THAT MOST
OF THE UNION MEMBERS AND MOST OF THE WORKERS AT THAT VERY PLANT ARE ON
STRIKE.  THE STRUCK EMPLOYER NEED NOT CONTINUE OPERATIONS, BUT IF HE
DOES, HE MAY NOT GIVE A PREFERENCE TO EMPLOYEES NOT AFFILIATED WITH THE
STRIKING UNION, ANY MORE THAN HE MAY DO SO AFTER THE STRIKE, FOR SEC. 7
EXPLICITLY AND UNEQUIVOCALLY PROTECTS THE RIGHT OF EMPLOYEES TO ENGAGE
AND NOT TO ENGAGE IN A CONCERTED ACTIVITY AND SEC. 8(A)(3) CLEARLY
PROHIBITS DISCRIMINATION WHICH DISCOURAGES UNION MEMBERSHIP.  SEE FIRTH
CARPET CO. V. LABOR BOARD, 129 F.2D 633 (C.A.2D CIR.); LABOR BOARD V.
SHENANDOAH-DIVES MINING CO., 145 F.2D 542 (C.A. 10TH CIR.); LABOR BOARD
V. CLAUSEN, 188 F.2D 439 (C.A. 3D CIR.), CERT. DENIED, 342 U.S. 868;
LABOR BOARD V. ANCHOR ROME MILLS, 228 F.2D 775, 780 (C.A. 5TH CIR.);
LABOR BOARD V. ROBINSON, 251 F.2D 639 (C.A. 6TH CIR.). IF DISMISSING
AND REPLACING NONSTRIKING UNION MEMBERS AT A STRUCK PLANT DISCOURAGES
UNION MEMBERSHIP AND INTERFERES WITH CONCERTED ACTIVITIES, I FAIL TO
UNDERSTAND HOW THIS SAME CONDUCT AT A NONSTRUCK PLANT, EVEN IF IN THE
NAME OF MULTIEMPLOYER PARITY AND UNITY, HAS A DIFFERENT EFFECT ON
EMPLOYEE RIGHTS.  THE EMPLOYEES ARE NOT ON STRIKE, AND DESIRE TO WORK,
FOR WHATEVER REASONS, AND NOTHING IN THE RIGHT TO LOCK OUT CAN ALTER
THESE FACTS.  THE COURT FINDS IT UNNECESSARY TO EXPLAIN HOW THEY ARE
REMOVED FROM THE EXPLICIT PROTECTIONS OF THE ACT, EXCEPT TO SAY THEY
BELONG TO THE UNION OR THE UNIT THE UNION REPRESENTS AND TO ASSUME
CONCLUSIVELY THEY SHARE ITS WHIPSAWING PURPOSE.  MEMBERSHIP HAS NEVER
QUITE MEANT THIS BEFORE.  THE COURT'S JUSTIFICATION FOR THIS INVASION
OF EMPLOYEE RIGHTS BY A MEMBER OF A MULTIEMPLOYER UNIT IS THE
EMPLOYER'S RIGHT TO BURDEN THE UNION STRIKE FUND WITH ALL ITS MEMBERS
TO BRING ECONOMIC PRESSURE TO BEAR ON THE UNION.  UNFORTUNATELY, THIS
REASONING HAS EQUAL, IF NOT GREATER, FORCE IN THE SINGLE EMPLOYER
PARTIAL STRIKE SITUATION. 

FINALLY, I CANNOT AGREE WITH THE COURT'S FUNDAMENTAL PREMISE ON WHICH
ITS BALANCE OF RIGHTS IS FOUNDED:  THAT A LOCKOUT FOLLOWED BY THE
HIRING OF NONUNION MEN TO OPERATE THE PLANT HAS BUT A "SLIGHT" TENDENCY
TO DISCOURAGE UNION MEMBERSHIP, WHICH INCLUDES PARTICIPATION IN UNION
ACTIVITIES, RADIO OFFICERS' UNION V. LABOR BOARD, 347 U.S. 17, AND TO
IMPINGE ON CONCERTED ACTIVITY GENERALLY.  THIS PROPOSITION OVERTURNS
THE BOARD'S LONG-HELD VIEWS ON THE EFFECT OF LOCKOUTS AND DISMISSAL OF
UNION MEMBERS.  MOREOVER, IT IS DIFFICULT TO FATHOM THE LOGIC OR
INDUSTRIAL EXPERIENCE WHICH ON THE ONE HAND DICTATES THAT A GUARANTEE
TO STRIKE REPLACEMENTS THAT THEY WILL NOT BE LAID OFF AFTER A STRIKE IS
"INHERENTLY DESTRUCTIVE OF EMPLOYEE INTERESTS," ALTHOUGH BASED ON A
LEGITIMATE AND IMPORTANT BUSINESS JUSTIFICATION, ERIE RESISTOR, 373
U.S. 221, AND YET AT THE SAME TIME DICTATES THAT THE DISMISSAL OF AND
REFUSAL TO HIRE NONSTRIKING UNION MEMBERS, WHO DESIRE TO WORK, BECAUSE
OTHER UNION MEMBERS WORKING FOR A DIFFERENT EMPLOYER HAVE STRUCK, HAVE
BUT A SLIGHT UNIMPORTANT INHIBITING EFFECT ON THE AFFILIATION WITH THE
UNION AND ON CONCERTED ACTIVITIES.  I THINK THE BOARD'S FINDING THAT
THIS ACTIVITY SUBSTANTIALLY BURDENS CONCERTED ACTIVITIES AND
DISCOURAGES UNION MEMBERSHIP IS FAR MORE CONSISTENT WITH ERIE RESISTOR
AND INDUSTRIAL REALITIES.  HENCE THE BOARD WAS WELL WITHIN ITS
AUTHORITY IN OPTING FOR EXPLICITLY PROTECTED STATUTORY RIGHTS OF
EMPLOYEES AS AGAINST A LIMITED EMPLOYER PRIVILEGE ALLOWABLE ONLY IN
EXCEPTIONAL CIRCUMSTANCES UNDER AN UNBROKEN LINE OF BOARD DECISIONS
SINCE THE INCEPTION OF THE ACT. 

"ALTHOUGH THE ACT PROTECTS THE RIGHT OF THE EMPLOYEES TO STRIKE IN
SUPPORT OF THEIR DEMANDS, THIS PROTECTION IS NOT SO ABSOLUTE AS TO DENY
SELF-HELP BY EMPLOYERS WHEN LEGITIMATE INTERESTS OF EMPLOYEES AND
EMPLOYERS COLLIDE.  CONFLICT MAY ARISE, FOR EXAMPLE, BETWEEN THE RIGHT
TO STRIKE AND THE INTEREST OF SMALL EMPLOYERS IN PRESERVING MULTI
EMPLOYER BARGAINING  ...  .  THE ULTIMATE PROBLEM IS THE BALANCING OF
THE CONFLICTING LEGITIMATE INTERESTS.  THE FUNCTION OF STRIKING THAT
BALANCE TO EFFECTUATE NATIONAL LABOR POLICY IS OFTEN A DIFFICULT AND
DELICATE RESPONSIBILITY, WHICH THE CONGRESS COMMITTED PRIMARILY TO THE
NATIONAL LABOR RELATIONS BOARD, SUBJECT TO LIMITED JUDICIAL REVIEW." 
BUFFALO LINEN, 353 U.S. 87, 96. 

THIS IS ESPECIALLY SO WHERE INTEGRITY OF A MULTIEMPLOYER BARGAINING
UNIT IS THE PRINCIPAL FACTOR TO BE CONSIDERED, SINCE "THE COMPELLING
CONCLUSION IS THAT CONGRESS  ...  'INTENDED TO LEAVE TO THE BOARD'S
SPECIALIZED JUDGMENT THE INEVITABLE QUESTIONS CONCERNING MULTI-EMPLOYER
BARGAINING BOUND TO ARISE IN THE FUTURE.'"  IBID.  I THINK THE COURT
NOW REPUDIATES THIS DECISION AND ASSUMES FOR ITSELF THE "DELICATE TASK
...  OF WEIGHING THE INTERESTS OF EMPLOYEES IN CONCERTED ACTIVITY
AGAINST THE INTEREST OF THE EMPLOYER IN OPERATING HIS BUSINESS IN A
PARTICULAR MANNER."  ERIE RESISTOR, 373 U.S. 221, 229.  I WOULD ADHERE
TO OUR PRIOR CASES AND AFFIRM THE DECISION OF THE BOARD. 
..END :















AMERICAN SHIP BUILDING CO. V. NATIONAL LABOR RELATIONS BOARD 380 U.S.
300 


NO. 255.  ARGUED JANUARY 21, 1965.  - DECIDED MARCH 29, 1965.  - 118
U.S. APP. D.C. 78, 331 F.2D 839, REVERSED. 


PETITIONER, OPERATOR OF FOUR SHIPYARDS, ENTERED NEGOTIATIONS WITH THE
UNIONS REPRESENTING ITS EMPLOYEES FOR THE PURPOSE OF SECURING A NEW
AGREEMENT TO REPLACE THE CURRENT CONTRACT, SOON TO EXPIRE.  AFTER A
BARGAINING IMPASSE WAS REACHED, PETITIONER TEMPORARILY CLOSED DOWN ONE
YARD AND LAID OFF EMPLOYEES AT THE OTHERS.  THE NATIONAL LABOR
RELATIONS BOARD FOUND THAT THE EMPLOYER COULD NOT HAVE REASONABLY
ANTICIPATED A STRIKE, THAT THE SOLE PURPOSE OF THE LAYOFFS WAS TO BRING
ECONOMIC PRESSURE TO SECURE A PROMPT AND FAVORABLE SETTLEMENT OF THE
LABOR DISPUTE, AND THAT THEREFORE PETITIONER VIOLATED SECS. 8(A)(1) AND
(3) OF THE NATIONAL LABOR RELATIONS ACT.  THE COURT OF APPEALS GRANTED
ENFORCEMENT OF THE BOARD'S ORDER.  HELD:  AN EMPLOYER DOES NOT COMMIT
AN UNFAIR LABOR PRACTICE UNDER EITHER SEC. 8(A)(1) OR SEC. 8(A)(3) OF
THE ACT WHEN, AFTER AN IMPASSE HAS BEEN REACHED IN NEGOTIATIONS, HE
TEMPORARILY SHUTS DOWN HIS PLANT AND LAYS OFF HIS EMPLOYEES FOR THE
SOLE PURPOSE OF APPLYING ECONOMIC PRESSURE IN SUPPORT OF HIS LEGITIMATE
BARGAINING POSITION.  PP. 308-318. 

AMERICAN SHIP BUILDING CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE AMERICAN SHIP BUILDING COMPANY SEEKS REVIEW OF A DECISION OF THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD WHICH FOUND
THAT THE COMPANY HAD COMMITTED AN UNFAIR LABOR PRACTICE UNDER SECS.
8(A)(1) AND (3) OF THE NATIONAL LABOR RELATIONS ACT.  (FN1)  THE
QUESTION PRESENTED IS THAT EXPRESSLY RESERVED IN LABOR BOARD V. TRUCK
DRIVERS LOCAL UNION, 353 U.S. 87, 93; NAMELY, WHETHER AN EMPLOYER
COMMITS AN UNFAIR LABOR PRACTICE UNDER THESE SECTIONS OF THE ACT WHEN
HE TEMPORARILY LAYS OFF OR "LOCKS OUT" HIS EMPLOYEES DURING A LABOR
DISPUTE TO BRING ECONOMIC PRESSURE IN SUPPORT OF HIS BARGAINING
POSITION.  TO RESOLVE AN ASSERTED CONFLICT AMONG THE CIRCUITS (FN2)
UPON THIS IMPORTANT QUESTION OF FEDERAL LABOR LAW WE GRANTED
CERTIORARI, 379 U.S. 814. 

THE AMERICAN SHIP BUILDING COMPANY OPERATES FOUR SHIPYARDS ON THE
GREAT LAKES - AT CHICAGO, AT BUFFALO, AND AT TOLEDO AND LORAIN, OHIO. 
THE COMPANY IS PRIMARILY ENGAGED IN THE REPAIRING OF SHIPS, A HIGHLY
SEASONAL BUSINESS CONCENTRATED IN THE WINTER MONTHS WHEN THE FREEZING
OF THE GREAT LAKES RENDERS SHIPPING IMPOSSIBLE.  WHAT LIMITED BUSINESS
IS OBTAINED DURING THE SHIPPING SEASON IS FREQUENTLY SUCH THAT SPEED OF
EXECUTION IS OF THE UTMOST IMPORTANCE TO MINIMIZE IMMOBILIZATION OF THE
SHIPS. 

SINCE 1952 THE EMPLOYER HAS ENGAGED IN COLLECTIVE BARGAINING WITH A
GROUP OF EIGHT UNIONS.  PRIOR TO THE NEGOTIATIONS HERE IN QUESTION, THE
EMPLOYER HAD CONTRACTED WITH THE UNIONS ON FIVE OCCASIONS, EACH
AGREEMENT HAVING BEEN PRECEDED BY A STRIKE.  THE PARTICULAR CHAPTER OF
THE COLLECTIVE BARGAINING HISTORY WITH WHICH WE ARE CONCERNED OPENED
SHORTLY BEFORE MAY 1, 1961, WHEN THE UNIONS NOTIFIED THE COMPANY OF
THEIR INTENTION TO SEEK MODIFICATION OF THE CURRENT CONTRACT, DUE TO
EXPIRE ON AUGUST 1. 

AT THE INITIAL BARGAINING MEETING ON JUNE 6, 1961, THE COMPANY TOOK
THE POSITION THAT ITS COMPETITIVE SITUATION WOULD NOT ALLOW INCREASED
COMPENSATION.  THE UNIONS COUNTERED WITH DEMANDS FOR INCREASED FRINGE
BENEFITS AND SOME UNSPECIFIED WAGE INCREASE.  SEVERAL MEETINGS WERE
HELD IN JUNE AND EARLY JULY DURING WHICH NEGOTIATIONS FOCUSSED UPON THE
FRINGE BENEFIT QUESTIONS WITHOUT ANY SUBSTANTIAL PROGRESS.  AT THE LAST
MEETING, THE PARTIES RESOLVED TO CALL IN THE FEDERAL MEDIATION AND
CONCILIATION SERVICE, WHICH SET THE NEXT MEETING FOR JULY 19.  AT THIS
MEETING, THE UNIONS FIRST UNVEILED THEIR DEMAND FOR A 20-CENTS-AN-HOUR
WAGE INCREASE AND PROPOSED A SIX-MONTH EXTENSION OF THE CONTRACT
PENDING CONTINUED NEGOTIATIONS.  THE EMPLOYER REJECTED THE PROPOSED
EXTENSION BECAUSE IT WOULD HAVE LED TO EXPIRATION DURING THE PEAK
SEASON. 

FURTHER NEGOTIATIONS NARROWED THE DISPUTE TO FIVE OR SIX ISSUES, ALL
INVOLVING SUBSTANTIAL ECONOMIC DIFFERENCES.  ON JULY 31, THE EVE OF THE
CONTRACT'S EXPIRATION, THE EMPLOYER MADE A PROPOSAL; THE UNIONS
COUNTERED WITH ANOTHER, REVIVED THEIR PROPOSAL FOR A SIX-MONTH
EXTENSION, AND PROPOSED IN THE ALTERNATIVE THAT THE EXISTING CONTRACT,
WITH ITS NO-STRIKE CLAUSE, BE EXTENDED INDEFINITELY WITH THE TERMS OF
THE NEW CONTRACT TO BE MADE RETROACTIVE TO AUGUST 1.  (FN3)  AFTER
REJECTION OF THE PROPOSED EXTENSIONS, THE EMPLOYER'S PROPOSAL WAS
SUBMITTED TO THE UNIONS' MEMBERSHIP; ON AUGUST 8 THE UNIONS ANNOUNCED
THAT THIS PROPOSAL HAD BEEN OVERWHELMINGLY REJECTED.  THE FOLLOWING
DAY, THE EMPLOYER MADE ANOTHER PROPOSAL WHICH THE UNIONS REFUSED TO
SUBMIT TO THEIR MEMBERSHIP; THE UNIONS MADE NO COUNTEROFFER AND THE
PARTIES SEPARATED WITHOUT SETTING A DATE FOR FURTHER MEETINGS, LEAVING
THIS TO THE DISCRETION OF THE CONCILIATOR. 

THUS ON AUGUST 9, AFTER EXTENDED NEGOTIATIONS, THE PARTIES SEPARATED
WITHOUT HAVING RESOLVED SUBSTANTIAL DIFFERENCES ON THE CENTRAL ISSUES
DIVIDING THEM AND WITHOUT HAVING SPECIFIC PLANS FOR FURTHER ATTEMPTS TO
RESOLVE THEM - A SITUATION WHICH THE TRIAL EXAMINER FOUND WAS AN
IMPASSE.  THROUGHOUT THE NEGOTIATIONS, THE EMPLOYER DISPLAYED ANXIETY
AS TO THE UNIONS' STRIKE PLANS, FEARING THAT THE UNIONS WOULD CALL A
STRIKE AS SOON AS A SHIP ENTERED THE CHICAGO YARD OR DELAY NEGOTIATIONS
INTO THE WINTER TO INCREASE STRIKE LEVERAGE.  THE UNION NEGOTIATOR
CONSISTENTLY INSISTED THAT IT WAS HIS INTENTION TO REACH AN AGREEMENT
WITHOUT CALLING A STRIKE; HOWEVER, HE DID CONCEDE INCOMPLETE CONTROL
OVER THE WORKERS - A FACT BORNE OUT BY THE OCCURRENCE OF A WILDCAT
STRIKE IN FEBRUARY 1961.  BECAUSE OF THE DANGER OF AN UNAUTHORIZED
STRIKE AND THE CONSISTENT AND DELIBERATE USE OF STRIKES IN PRIOR
NEGOTIATIONS, THE EMPLOYER REMAINED APPREHENSIVE OF THE POSSIBILITY OF
A WORK STOPPAGE. 

IN LIGHT OF THE FAILURE TO REACH AN AGREEMENT AND THE LACK OF
AVAILABLE WORK, THE EMPLOYER DECIDED TO LAY OFF CERTAIN OF ITS
WORKERS.  ON AUGUST 11 THE EMPLOYEES RECEIVED A NOTICE WHICH READ:
"BECAUSE OF THE LABOR DISPUTE WHICH HAS BEEN UNRESOLVED SINCE AUGUST 1,
1961, YOU ARE LAID OFF UNTIL FURTHER NOTICE."  THE CHICAGO YARD WAS
COMPLETELY SHUT DOWN AND ALL BUT TWO EMPLOYEES LAID OFF AT THE TOLEDO
YARD.  A LARGE FORCE WAS RETAINED AT LORAIN TO COMPLETE A MAJOR PIECE
OF WORK THERE AND THE EMPLOYEES IN THE BUFFALO YARD WERE GRADUALLY LAID
OFF AS MISCELLANEOUS TASKS WERE COMPLETED.  NEGOTIATIONS WERE RESUMED
SHORTLY AFTER THESE LAYOFFS AND CONTINUED FOR THE FOLLOWING TWO MONTHS
UNTIL A TWO-YEAR CONTRACT WAS AGREED UPON ON OCTOBER 27.  THE EMPLOYEES
WERE RECALLED THE FOLLOWING DAY. 

UPON CLAIMS FILED BY THE UNIONS, THE GENERAL COUNSEL OF THE BOARD
ISSUED A COMPLAINT CHARGING THE EMPLOYER WITH VIOLATIONS OF SECS.
8(A)(1), (3), AND (5).  (FN4)  THE TRIAL EXAMINER FOUND THAT ALTHOUGH
THERE HAD BEEN NO WORK IN THE CHICAGO YARD SINCE JULY 19, ITS CLOSING
WAS NOT DUE TO LACK OF WORK.  DESPITE SIMILARLY SLACK SEASONS IN THE
PAST, THE EMPLOYER HAD FOR 17 YEARS RETAINED A NUCLEUS CREW TO DO
MAINTENANCE WORK AND REMAIN READY TO TAKE SUCH WORK AS MIGHT COME IN.
THE EXAMINER WENT ON TO FIND THAT THE EMPLOYER WAS REASONABLY
APPREHENSIVE OF A STRIKE AT SOME POINT.  ALTHOUGH THE UNIONS HAD GIVEN
ASSURANCES THAT THERE WOULD BE NO STRIKE, PAST BARGAINING HISTORY WAS
THOUGHT TO JUSTIFY CONTINUING APPREHENSION THAT THE UNIONS WOULD FAIL
TO MAKE GOOD THEIR ASSURANCES.   IT WAS FURTHER FOUND THAT THE
EMPLOYER'S PRIMARY PURPOSE IN LOCKING OUT ITS EMPLOYEES WAS TO AVERT
PECULIARLY HARMFUL ECONOMIC CONSEQUENCES WHICH WOULD BE IMPOSED ON IT
AND ITS CUSTOMERS IF A STRIKE WERE CALLED EITHER WHILE A SHIP WAS IN
THE YARD DURING THE SHIPPING SEASON OR LATER WHEN THE YARD WAS FULLY
OCCUPIED.  THE EXAMINER CONCLUDED THAT THE EMPLOYER: 

"WAS ECONOMICALLY JUSTIFIED AND MOTIVATED IN LAYING OFF ITS EMPLOYEES
WHEN IT DID, AND THAT THE FACT THAT ITS JUDGMENT WAS PARTIALLY COLORED
BY ITS INTENTION TO BREAK THE IMPASSE WHICH EXISTED IS IMMATERIAL IN
THE PECULIAR AND SPECIAL CIRCUMSTANCES OF THIS CASE.  RESPONDENT, BY
ITS ACTIONS, THEREFORE, DID NOT VIOLATE SECTION 8(A)(1), (3), AND (5)
OF THE ACT." 

A THREE-TO-TWO MAJORITY OF THE BOARD REJECTED THE TRIAL EXAMINER'S
CONCLUSION THAT THE EMPLOYER COULD REASONABLY ANTICIPATE A STRIKE. 
FINDING THE UNIONS' ASSURANCES SUFFICIENT TO DISPEL ANY SUCH
APPREHENSION, THE BOARD WAS ABLE TO FIND ONLY ONE PURPOSE UNDERLYING
THE LAYOFF: A DESIRE TO BRING ECONOMIC PRESSURE TO SECURE PROMPT
SETTLEMENT OF THE DISPUTE ON FAVORABLE TERMS.  THE BOARD DID NOT
QUESTION THE EXAMINER'S FINDING THAT THE LAYOFFS HAD NOT OCCURRED UNTIL
AFTER A BARGAINING IMPASSE HAD BEEN REACHED.  NOR DID THE BOARD
REMOTELY SUGGEST THAT THE COMPANY'S DECISION TO LAY OFF ITS EMPLOYEES
WAS BASED EITHER ON UNION HOSTILITY OR ON A DESIRE TO AVOID ITS
BARGAINING OBLIGATIONS UNDER THE ACT.  THE BOARD CONCLUDED THAT THE
EMPLOYER "BY CURTAILING ITS OPERATIONS AT THE SOUTH CHICAGO YARD WITH
THE CONSEQUENT LAYOFF OF THE EMPLOYEES, COERCED EMPLOYEES IN THE
EXERCISE OF THEIR BARGAINING RIGHTS IN VIOLATION OF SECTION 8(A)(1) OF
THE ACT, AND DISCRIMINATED AGAINST ITS EMPLOYEES WITHIN THE MEANING OF

THE DIFFERENCE BETWEEN THE BOARD AND THE TRIAL EXAMINER IS THUS A
NARROW ONE TURNING ON THEIR DIFFERING ASSESSMENTS OF THE CIRCUMSTANCES
WHICH THE EMPLOYER CLAIMS GAVE IT REASON TO ANTICIPATE A STRIKE.  BOTH
THE BOARD AND THE EXAMINER ASSUMED, WITHIN THE ESTABLISHED PATTERN OF
BOARD ANALYSIS, (FN6) THAT IF THE EMPLOYER HAD SHUT DOWN ITS YARD AND
LAID OFF ITS WORKERS SOLELY FOR THE PURPOSE OF BRINGING TO BEAR
ECONOMIC PRESSURE TO BREAK AN IMPASSE AND SECURE MORE FAVORABLE
CONTRACT TERMS, AN UNFAIR LABOR PRACTICE WOULD BE MADE OUT.  "THE BOARD
HAS HELD THAT, ABSENT SPECIAL CIRCUMSTANCES, AN EMPLOYER MAY NOT DURING
BARGAINING NEGOTIATIONS EITHER THREATEN TO LOCK OUT OR LOCK OUT HIS
EMPLOYEES IN AID OF HIS BARGAINING POSITION.  SUCH CONDUCT THE BOARD
HAS HELD PRESUMPTIVELY INFRINGES UPON THE COLLECTIVE-BARGAINING RIGHTS
OF EMPLOYEES IN VIOLATION OF SECTION 8(A)(1) AND THE LOCKOUT, WITH ITS
CONSEQUENT LAYOFF, AMOUNTS TO DISCRIMINATION WITHIN THE MEANING OF
SUBJECTS THE UNION AND THE EMPLOYEES IT REPRESENTS TO UNWARRANTED AND
ILLEGAL PRESSURE AND CREATES AN ATMOSPHERE IN WHICH THE FREE
OPPORTUNITY FOR NEGOTIATION CONTEMPLATED BY SECTION 8(A)(5) DOES NOT
EXIST."  QUAKER STATE OIL REFINING CORP., 121 N.L.R.B. 334, 337. 

THE BOARD HAS, HOWEVER, EXEMPTED CERTAIN CLASSES OF LOCKOUTS FROM
PROSCRIPTION.  "ACCORDINGLY, IT HAS HELD THAT LOCKOUTS ARE PERMISSIBLE
TO SAFEGUARD AGAINST  ...  LOSS WHERE THERE IS REASONABLE GROUND FOR
BELIEVING THAT A STRIKE WAS THREATENED OR IMMINENT."  IBID.  DEVELOPING
THIS DISTINCTION IN ITS RULINGS, THE BOARD HAS APPROVED LOCKOUTS
DESIGNED TO PREVENT SEIZURE OF A PLANT BY A SITDOWN STRIKE, LINK-BELT
CO., 26 N.L.R.B. 227; TO FORESTALL REPETITIVE DISRUPTIONS OF AN
INTEGRATED OPERATION BY "QUICKIE" STRIKES, INTERNATIONAL SHOE CO., 93
N.L.R.B. 907; TO AVOID SPOILAGE OF MATERIALS WHICH WOULD RESULT FROM A
SUDDEN WORK STOPPAGE, DULUTH BOTTLING ASSN., 48 N.L.R.B. 1335; AND TO
AVERT THE IMMOBILIZATION OF AUTOMOBILES BROUGHT IN FOR REPAIR, BETTS
CADILLAC OLDS, INC., 96 N.L.R.B. 268.  IN ANOTHER DISTINCT CLASS OF
CASES THE BOARD HAS SANCTIONED THE USE OF THE LOCKOUT BY A
MULTIEMPLOYER BARGAINING UNIT AS A RESPONSE TO A WHIPSAW STRIKE AGAINST
ONE OF ITS MEMBERS.  BUFFALO LINEN SUPPLY CO., 109 N.L.R.B.  447, REV'D
SUB NOM. TRUCK DRIVERS UNION V. LABOR BOARD, 231 F.2D 110, REV'D, 353
U.S. 87.  (FN7) 

IN ANALYZING THE STATUS OF THE BARGAINING LOCKOUT UNDER SECS. 8(A)(1)
AND (3) OF THE NATIONAL LABOR RELATIONS ACT, IT IS IMPORTANT THAT THE
PRACTICE WITH WHICH WE ARE HERE CONCERNED BE DISTINGUISHED FROM OTHER
FORMS OF TEMPORARY SEPARATION FROM EMPLOYMENT.  NO ONE WOULD DENY THAT
AN EMPLOYER IS FREE TO SHUT DOWN HIS ENTERPRISE TEMPORARILY FOR REASONS
OF RENOVATION OR LACK OF PROFITABLE WORK UNRELATED TO HIS COLLECTIVE
BARGAINING SITUATION.  SIMILARLY, WE PUT TO ONE SIDE CASES WHERE THE
BOARD HAS CONCLUDED ON THE BASIS OF SUBSTANTIAL EVIDENCE THAT THE
EMPLOYER HAS USED A LOCKOUT AS A MEANS TO INJURE A LABOR ORGANIZATION
OR TO EVADE HIS DUTY TO BARGAIN COLLECTIVELY.  HOPWOOD RETINNING CO., 4
N.L.R.B. 922; SCOTT PAPER BOX CO., 81 N.L.R.B. 535.  WHAT WE ARE HERE
CONCERNED WITH IS THE USE OF A TEMPORARY LAYOFF OF EMPLOYEES SOLELY AS
A MEANS TO BRING ECONOMIC PRESSURE TO BEAR IN SUPPORT OF THE EMPLOYER'S
BARGAINING POSITION, AFTER AN IMPASSE HAS BEEN REACHED.  THIS IS THE
ONLY ISSUE BEFORE US, AND ALL THAT WE DECIDE.  (FN8) 

TO ESTABLISH THAT THIS PRACTICE IS A VIOLATION OF SEC. 8(A)(1), IT
MUST BE SHOWN THAT THE EMPLOYER HAS INTERFERED WITH, RESTRAINED, OR
COERCED EMPLOYEES IN THE EXERCISE OF SOME RIGHT PROTECTED BY SEC. 7 OF
THE ACT.  THE BOARD'S POSITION IS PREMISED ON THE VIEW THAT THE LOCKOUT
INTERFERES WITH TWO OF THE RIGHTS GUARANTEED BY SEC. 7:  THE RIGHT TO
BARGAIN COLLECTIVELY AND THE RIGHT TO STRIKE.  IN THE BOARD'S VIEW, THE
USE OF THE LOCKOUT "PUNISHES" EMPLOYEES FOR THE PRESENTATION OF AND
ADHERENCE TO DEMANDS MADE BY THEIR BARGAINING REPRESENTATIVES AND SO
COERCES THEM IN THE EXERCISE OF THEIR RIGHT TO BARGAIN COLLECTIVELY. 
IT IS IMPORTANT TO NOTE THAT THERE IS HERE NO ALLEGATION THAT THE
EMPLOYER USED THE LOCKOUT IN THE SERVICE OF DESIGNS INIMICAL TO THE
PROCESS OF COLLECTIVE BARGAINING.  THERE WAS NO EVIDENCE AND NO FINDING
THAT THE EMPLOYER WAS HOSTILE TO ITS EMPLOYEES' BANDING TOGETHER FOR
COLLECTIVE BARGAINING OR THAT THE LOCKOUT WAS DESIGNED TO DISCIPLINE
THEM FOR DOING SO.  IT IS THEREFORE INACCURATE TO SAY THAT THE
EMPLOYER'S INTENTION WAS TO DESTROY OR FRUSTRATE THE PROCESS OF
COLLECTIVE BARGAINING.  WHAT CAN BE SAID IS THAT IT INTENDED TO RESIST
THE DEMANDS MADE OF IT IN THE NEGOTIATIONS AND TO SECURE MODIFICATION
OF THESE DEMANDS.  WE CANNOT SEE THAT THIS INTENTION IS IN ANY WAY
INCONSISTENT WITH THE EMPLOYEES' RIGHTS TO BARGAIN COLLECTIVELY. 

MOREOVER, THERE IS NO INDICATION, EITHER AS A GENERAL MATTER OR IN
THIS SPECIFIC CASE, THAT THE LOCKOUT WILL NECESSARILY DESTROY THE
UNIONS' CAPACITY FOR EFFECTIVE AND RESPONSIBLE REPRESENTATION.  THE
UNIONS HERE INVOLVED HAVE VIGOROUSLY REPRESENTED THE EMPLOYEES SINCE
1952, AND THERE IS NOTHING TO SHOW THAT THEIR ABILITY TO DO SO HAS BEEN
IMPAIRED BY THE LOCKOUT.  NOR IS THE LOCKOUT ONE OF THOSE ACTS WHICH
ARE DEMONSTRABLY SO DESTRUCTIVE OF COLLECTIVE BARGAINING THAT THE BOARD
NEED NOT INQUIRE INTO EMPLOYER MOTIVATION, AS MIGHT BE THE CASE, FOR
EXAMPLE, IF AN EMPLOYER PERMANENTLY DISCHARGED HIS UNIONIZED STAFF AND
REPLACED THEM WITH EMPLOYEES KNOWN TO BE POSSESSED OF A VIOLENT
ANTIUNION ANIMUS.  CF. LABOR BOARD V. ERIE RESISTOR CORP., 373 U.S.
221.  THE LOCKOUT MAY WELL DISSUADE EMPLOYEES FROM ADHERING TO THE
POSITION WHICH THEY INITIALLY ADOPTED IN THE BARGAINING, BUT THE RIGHT
TO BARGAIN COLLECTIVELY DOES NOT ENTAIL ANY "RIGHT" TO INSIST ON ONE'S
POSITION FREE FROM ECONOMIC DISADVANTAGE.  PROPER ANALYSIS OF THE
PROBLEM DEMANDS THAT THE SIMPLE INTENTION TO SUPPORT THE EMPLOYER'S
BARGAINING POSITION AS TO COMPENSATION AND THE LIKE BE DISTINGUISHED
FROM A HOSTILITY TO THE PROCESS OF COLLECTIVE BARGAINING WHICH COULD
SUFFICE TO RENDER A LOCKOUT UNLAWFUL.  SEE LABOR BOARD V. BROWN, ANTE,
P. 278. 

THE BOARD HAS TAKEN THE COMPLEMENTARY VIEW THAT THE LOCKOUT
INTERFERES WITH THE RIGHT TO STRIKE PROTECTED UNDER SECS. 7 AND 13 OF
THE ACT (FN9) IN THAT IT ALLOWS THE EMPLOYER TO PRE-EMPT THE
POSSIBILITY OF A STRIKE AND THUS LEAVE THE UNION WITH "NOTHING TO
STRIKE AGAINST."  INSOFAR AS THIS MEANS THAT ONCE EMPLOYEES ARE LOCKED
OUT, THEY ARE DEPRIVED OF THEIR RIGHT TO CALL A STRIKE AGAINST THE
EMPLOYER BECAUSE HE IS ALREADY SHUT DOWN, THE ARGUMENT IS WHOLLY
SPECIOUS, FOR THE WORK STOPPAGE WHICH WOULD HAVE BEEN THE OBJECT OF THE
STRIKE HAS IN FACT OCCURRED.  (FN10)  IT IS TRUE THAT RECOGNITION OF
THE LOCKOUT DEPRIVES THE UNION OF EXCLUSIVE CONTROL OF THE TIMING AND
DURATION OF WORK STOPPAGES CALCULATED TO INFLUENCE THE RESULT OF
COLLECTIVE BARGAINING NEGOTIATIONS, BUT THERE IS NOTHING IN THE STATUTE
WHICH WOULD IMPLY THAT THE RIGHT TO STRIKE "CARRIES WITH IT" THE RIGHT
EXCLUSIVELY TO DETERMINE THE TIMING AND DURATION OF ALL WORK
STOPPAGES.  THE RIGHT TO STRIKE AS COMMONLY UNDERSTOOD IS THE RIGHT TO
CEASE WORK - NOTHING MORE.  NO DOUBT A UNION'S BARGAINING POWER WOULD
BE ENHANCED IF IT POSSESSED NOT ONLY THE SIMPLE RIGHT TO STRIKE BUT
ALSO THE POWER EXCLUSIVELY TO DETERMINE WHEN WORK STOPPAGES SHOULD
OCCUR, BUT THE ACT'S PROVISIONS ARE NOT INDEFINITELY ELASTIC, CONTENT
FREE FORMS TO BE SHAPED IN WHATEVER MANNER THE BOARD MIGHT THINK BEST
CONFORMS TO THE PROPER BALANCE OF BARGAINING POWER. 

THUS, WE CANNOT SEE THAT THE EMPLOYER'S USE OF A LOCKOUT SOLELY IN
SUPPORT OF A LEGITIMATE BARGAINING POSITION IS IN ANY WAY INCONSISTENT
WITH THE RIGHT TO BARGAIN COLLECTIVELY OR WITH THE RIGHT TO STRIKE. 
ACCORDINGLY, WE CONCLUDE THAT ON THE BASIS OF THE FINDINGS MADE BY THE
BOARD IN THIS CASE, THERE HAS BEEN NO VIOLATION OF SEC. 8(A)(1). 

CONDITIONS OF EMPLOYMENT TO DISCOURAGE UNION MEMBERSHIP.  UNDER THE
WORDS OF THE STATUTE THERE MUST BE BOTH DISCRIMINATION AND A RESULTING
DISCOURAGEMENT OF UNION MEMBERSHIP.  IT HAS LONG BEEN ESTABLISHED THAT
A FINDING OF VIOLATION UNDER THIS SECTION WILL NORMALLY TURN ON THE
EMPLOYER'S MOTIVATION.  SEE LABOR BOARD V. BROWN, ANTE, P. 278; RADIO
OFFICERS' UNION V. LABOR BOARD, 347 U.S. 17, 43; LABOR BOARD V. JONES &
LAUGHLIN STEEL CORP., 301 U.S. 1, 46.  THUS WHEN THE EMPLOYER
DISCHARGES A UNION LEADER WHO HAS BROKEN SHOP RULES, THE PROBLEM POSED
IS TO DETERMINE WHETHER THE EMPLOYER HAS ACTED PURELY IN DISINTERESTED
DEFENSE OF SHOP DISCIPLINE OR HAS SOUGHT TO DAMAGE EMPLOYEE
ORGANIZATION.  IT IS LIKELY THAT THE DISCHARGE WILL NATURALLY TEND TO
DISCOURAGE UNION MEMBERSHIP IN BOTH CASES, BECAUSE OF THE LOSS OF UNION
LEADERSHIP AND THE EMPLOYEES' SUSPICION OF THE EMPLOYER'S TRUE
INTENTION.  BUT WE HAVE CONSISTENTLY CONSTRUED THE SECTION TO LEAVE
UNSCATHED A WIDE RANGE OF EMPLOYER ACTIONS TAKEN TO SERVE LEGITIMATE
BUSINESS INTERESTS IN SOME SIGNIFICANT FASHION, EVEN THOUGH THE ACT
COMMITTED MAY TEND TO DISCOURAGE UNION MEMBERSHIP.  SEE, E.G., LABOR
BOARD V. MACKAY RADIO & TELEGRAPH CO., 304 U.S. 333, 347.  SUCH A
CONSTRUCTION OF SEC. 8(A)(3) IS ESSENTIAL IF DUE PROTECTION IS TO BE
ACCORDED THE EMPLOYER'S RIGHT TO MANAGE HIS ENTERPRISE.  SEE TEXTILE
WORKERS V. DARLINGTON MFG. CO., ANTE, P. 263. 

THIS IS NOT TO DENY THAT THERE ARE SOME PRACTICES WHICH ARE
INHERENTLY SO PREJUDICIAL TO UNION INTERESTS AND SO DEVOID OF
SIGNIFICANT ECONOMIC JUSTIFICATION THAT NO SPECIFIC EVIDENCE OF INTENT
TO DISCOURAGE UNION MEMBERSHIP OR OTHER ANTIUNION ANIMUS IS REQUIRED. 
IN SOME CASES, IT MAY BE THAT THE EMPLOYER'S CONDUCT CARRIES WITH IT AN
INFERENCE OF UNLAWFUL INTENTION SO COMPELLING THAT IT IS JUSTIFIABLE TO
DISBELIEVE THE EMPLOYER'S PROTESTATIONS OF INNOCENT PURPOSE.  RADIO
OFFICERS' UNION V. LABOR BOARD, SUPRA, AT 44-45; LABOR BOARD V. ERIE
RESISTOR CORP., SUPRA.  THUS WHERE MANY HAVE BROKEN A SHOP RULE, BUT
ONLY UNION LEADERS HAVE BEEN DISCHARGED, THE BOARD NEED NOT LISTEN TOO
LONG TO THE PLEA THAT SHOP DISCIPLINE WAS SIMPLY BEING ENFORCED.  IN
OTHER SITUATIONS, WE HAVE DESCRIBED THE PROCESS AS THE "FAR MORE
DELICATE TASK  ...  OF WEIGHING THE INTERESTS OF EMPLOYEES IN CONCERTED
ACTIVITY AGAINST THE INTEREST OF THE EMPLOYER IN OPERATING HIS BUSINESS
IN A PARTICULAR MANNER ... ."  LABOR BOARD V. ERIE RESISTOR CORP.,
SUPRA, AT 229. 

BUT THIS LOCKOUT DOES NOT FALL INTO THAT CATEGORY OF CASES ARISING
UNDER SEC. 8(A)(3) IN WHICH THE BOARD MAY TRUNCATE ITS INQUIRY INTO
EMPLOYER MOTIVATION.  AS THIS CASE WELL SHOWS, USE OF THE LOCKOUT DOES
NOT CARRY WITH IT ANY NECESSARY IMPLICATION THAT THE EMPLOYER ACTED TO
DISCOURAGE UNION MEMBERSHIP OR OTHERWISE DISCRIMINATE AGAINST UNION
MEMBERS AS SUCH.  THE PURPOSE AND EFFECT OF THE LOCKOUT WERE ONLY TO
BRING PRESSURE UPON THE UNION TO MODIFY ITS DEMANDS.  SIMILARLY, IT
DOES NOT APPEAR THAT THE NATURAL TENDENCY OF THE LOCKOUT IS SEVERELY TO
DISCOURAGE UNION MEMBERSHIP WHILE SERVING NO SIGNIFICANT EMPLOYER
INTEREST.  IN FACT, IT IS DIFFICULT TO UNDERSTAND WHAT TENDENCY TO
DISCOURAGE UNION MEMBERSHIP OR OTHERWISE DISCRIMINATE AGAINST UNION
MEMBERS WAS PERCEIVED BY THE BOARD.  THERE IS NO CLAIM THAT THE
EMPLOYER LOCKED OUT ONLY UNION MEMBERS, OR LOCKED OUT ANY EMPLOYEE
SIMPLY BECAUSE HE WAS A UNION MEMBER; NOR IS IT ALLEGED THAT THE
EMPLOYER CONDITIONED REHIRING UPON RESIGNATION FROM THE UNION.  IT IS
TRUE THAT THE EMPLOYEES SUFFERED ECONOMIC DISADVANTAGE BECAUSE OF THEIR
UNION'S INSISTENCE ON DEMANDS UNACCEPTABLE TO THE EMPLOYER, BUT THIS IS
ALSO TRUE OF MANY STEPS WHICH AN EMPLOYER MAY TAKE DURING A BARGAINING
CONFLICT, AND THE EXISTENCE OF AN ARGUABLE POSSIBILITY THAT SOMEONE MAY
FEEL HIMSELF DISCOURAGED IN HIS UNION MEMBERSHIP OR DISCRIMINATED
AGAINST BY REASON OF THAT MEMBERSHIP CANNOT SUFFICE TO LABEL THEM
VIOLATIONS OF SEC. 8(A)(3) ABSENT SOME UNLAWFUL INTENTION.  THE
EMPLOYER'S PERMANENT REPLACEMENT OF STRIKERS (LABOR BOARD V. MACKAY
RADIO & TELEGRAPH CO., SUPRA), HIS UNILATERAL IMPOSITION OF TERMS
(LABOR BOARD V. TEX-TAN, INC., 318 F.2D 472, 479-482), OR HIS SIMPLE
REFUSAL TO MAKE A CONCESSION WHICH WOULD TERMINATE A STRIKE - ALL
IMPOSE ECONOMIC DISADVANTAGE DURING A BARGAINING CONFLICT, BUT NONE IS
NECESSARILY A VIOLATION OF SEC. 8(A)(3). 

TO FIND A VIOLATION OF SEC. 8(A)(3), THEN, THE BOARD MUST FIND THAT
THE EMPLOYER ACTED FOR A PROSCRIBED PURPOSE.  INDEED, THE BOARD ITSELF
HAS ALWAYS RECOGNIZED THAT CERTAIN "OPERATIVE" OR "ECONOMIC" PURPOSES
WOULD JUSTIFY A LOCKOUT.  BUT THE BOARD HAS ERRED IN RULING THAT ONLY
THESE PURPOSES WILL REMOVE A LOCKOUT FROM THE AMBIT OF SEC. 8(A)(3),
FOR THAT SECTION REQUIRES AN INTENTION TO DISCOURAGE UNION MEMBERSHIP
OR OTHERWISE DISCRIMINATE AGAINST THE UNION.  THERE WAS NOT THE
SLIGHTEST EVIDENCE AND THERE WAS NO FINDING THAT THE EMPLOYER WAS
ACTUATED BY A DESIRE TO DISCOURAGE MEMBERSHIP IN THE UNION AS
DISTINGUISHED FROM A DESIRE TO AFFECT THE OUTCOME OF THE PARTICULAR
NEGOTIATIONS IN WHICH IT WAS INVOLVED.  WE RECOGNIZE THAT THE "UNION
MEMBERSHIP" WHICH IS NOT TO BE DISCOURAGED REFERS TO MORE THAN THE
PAYMENT OF DUES AND THAT MEASURES TAKEN TO DISCOURAGE PARTICIPATION IN
PROTECTED UNION ACTIVITIES MAY BE FOUND TO COME WITHIN THE THE
PROSCRIPTION.  RADIO OFFICERS' UNION V. LABOR BOARD, SUPRA, AT 39-40. 
HOWEVER, THERE IS NOTHING IN THE ACT WHICH GIVES EMPLOYEES THE RIGHT TO
INSIST ON THEIR CONTRACT DEMANDS, FREE FROM THE SORT OF ECONOMIC
DISADVANTAGE WHICH FREQUENTLY ATTENDS BARGAINING DISPUTES.  THEREFORE,
WE CONCLUDE THAT WHERE THE INTENTION PROVEN IS MERELY TO BRING ABOUT A
SETTLEMENT OF A LABOR DISPUTE ON FAVORABLE TERMS, NO VIOLATION OF SEC.
8(A)(3) IS SHOWN. 

THE CONCLUSIONS WHICH WE DRAW FROM ANALYSIS OF SECS. 8(A)(1) AND (3)
ARE CONSONANT WITH WHAT LITTLE OF RELEVANCE CAN BE DRAWN FROM THE
BALANCE OF THE STATUTE AND ITS LEGISLATIVE HISTORY.  IN THE ORIGINAL
VERSION OF THE ACT, THE PREDECESSOR OF SEC. 8(A)(1) DECLARED IT AN
UNFAIR LABOR PRACTICE "TO ATTEMPT, BY INTERFERENCE, INFLUENCE,
RESTRAINT, FAVOR, COERCION, OR LOCKOUT, OR BY ANY OTHER MEANS, TO
IMPAIR THE RIGHT OF EMPLOYEES GUARANTEED IN SECTION 4."  (FN11)
PROMINENT IN THE CRITICISM LEVELED AT THE BILL IN THE SENATE COMMITTEE
HEARINGS WAS THE CHARGE THAT IT DID NOT ACCORD EVEN-HANDED TREATMENT TO
EMPLOYERS AND EMPLOYEES BECAUSE IT PROHIBITED THE LOCKOUT WHILE
PROTECTING THE STRIKE.  (FN12)  IN THE FACE OF SUCH CRITICISM, THE
COMMITTEE ADDED A PROVISION PROHIBITING EMPLOYEE INTERFERENCE WITH
EMPLOYER BARGAINING ACTIVITIES (FN13) AND DELETED THE REFERENCE TO THE
LOCKOUT.  (FN14)  A PLAUSIBLE INFERENCE TO BE DRAWN FROM THIS HISTORY
IS THAT THE LANGUAGE WAS DELETED TO MOLLIFY THOSE WHO SAW IN THE BILL
AN INEQUITABLE DENIAL OF RESORT TO THE LOCKOUT, AND TO REMOVE ANY
LANGUAGE WHICH MIGHT GIVE RISE TO FEARS THAT THE LOCKOUT WAS BEING
PROSCRIBED PER SE.  IT IS IN ANY EVENT CLEAR THAT THE COMMITTEE WAS
CONCERNED WITH THE STATUS OF THE LOCKOUT AND THAT THE BILL, AS REPORTED
AND AS FINALLY ENACTED, CONTAINED NO PROHIBITION ON THE USE OF THE
LOCKOUT AS SUCH. 

ALTHOUGH NEITHER SEC. 8(A)(1) NOR SEC. 8(A)(3) REFERS SPECIFICALLY TO
THE LOCKOUT, VARIOUS OTHER PROVISIONS OF THE NATIONAL LABOR RELATIONS
ACT DO REFER TO THE LOCKOUT, AND THESE REFERENCES CAN BE INTERPRETED AS
A RECOGNITION OF THE LEGITIMACY OF THE DEVICE AS A MEANS OF APPLYING
ECONOMIC PRESSURE IN SUPPORT OF BARGAINING POSITIONS.  THUS 29 U.S.C.
SEC.  158(D)(4) (1958 ED.)  PROHIBITS THE USE OF A STRIKE OR LOCKOUT
UNLESS REQUISITE NOTICE PROCEDURES HAVE BEEN COMPLIED WITH; 29 U.S.C.
SEC. 173(C) (1958 ED.)  DIRECTS THE FEDERAL MEDIATION AND CONCILIATION
SERVICE TO SEEK VOLUNTARY RESOLUTION OF LABOR DISPUTES WITHOUT RESORT
TO STRIKES OR LOCKOUTS; AND 29 U.S.C. SECS. 176, 178 (1958 ED.),
AUTHORIZE PROCEDURES WHEREBY THE PRESIDENT CAN INSTITUTE A BOARD OF
INQUIRY TO FORESTALL CERTAIN STRIKES OR LOCKOUTS.  THE CORRELATIVE USE
OF THE TERMS "STRIKE" AND "LOCKOUT" IN THESE SECTIONS CONTEMPLATES THAT
LOCKOUTS WILL BE USED IN THE BARGAINING PROCESS IN SOME FASHION.  THIS
IS NOT TO SAY THAT THESE PROVISIONS SERVE TO DEFINE THE PERMISSIBLE
SCOPE OF A LOCKOUT BY AN EMPLOYER.  THAT, IN THE CONTEXT OF THE PRESENT
CASE, IS A QUESTION ULTIMATELY TO BE RESOLVED BY ANALYSIS OF SECS.
8(A)(1) AND (3). 

THE BOARD HAS JUSTIFIED ITS RULING IN THIS CASE AND ITS GENERAL
APPROACH TO THE LEGALITY OF LOCKOUTS ON THE BASIS OF ITS SPECIAL
COMPETENCE TO WEIGH THE COMPETING INTERESTS OF EMPLOYERS AND EMPLOYEES
AND TO ACCOMMODATE THESE INTERESTS ACCORDING TO ITS EXPERT JUDGMENT. 
"THE BOARD HAS REASONABLY CONCLUDED THAT THE AVAILABILITY OF SUCH A
WEAPON WOULD SO SUBSTANTIALLY TIP THE SCALES IN THE EMPLOYER'S FAVOR AS
TO DEFEAT THE CONGRESSIONAL PURPOSE OF PLACING EMPLOYEES ON A PAR WITH
THEIR ADVERSARY AT THE BARGAINING TABLE."  (FN15)  TO BUTTRESS ITS
DECISION AS TO THE BALANCE STRUCK IN THIS PARTICULAR CASE, THE BOARD
POINTS OUT THAT THE EMPLOYER HAS BEEN GIVEN OTHER WEAPONS TO
COUNTERBALANCE THE EMPLOYEES' POWER OF STRIKE.  THE EMPLOYER MAY
PERMANENTLY REPLACE WORKERS WHO HAVE GONE OUT ON STRIKE, OR, BY
STOCKPILING AND SUBCONTRACTING, MAINTAIN HIS COMMERCIAL OPERATIONS
WHILE THE STRIKERS BEAR THE ECONOMIC BRUNT OF THE WORK STOPPAGE. 
SIMILARLY, THE EMPLOYER CAN INSTITUTE UNILATERALLY THE WORKING
CONDITIONS WHICH HE DESIRES ONCE HIS CONTRACT WITH THE UNION HAS
EXPIRED.  GIVEN THESE ECONOMIC WEAPONS, IT IS ARGUED, THE EMPLOYER HAS
BEEN ADEQUATELY EQUIPPED WITH TOOLS OF ECONOMIC SELF-HELP. 

THERE IS OF COURSE NO QUESTION THAT THE BOARD IS ENTITLED TO THE
GREATEST DEFERENCE IN RECOGNITION OF ITS SPECIAL COMPETENCE IN DEALING
WITH LABOR PROBLEMS.  IN MANY AREAS ITS EVALUATION OF THE COMPETING
INTERESTS OF EMPLOYER AND EMPLOYEE SHOULD UNQUESTIONABLY BE GIVEN
CONCLUSIVE EFFECT IN DETERMINING THE APPLICATION OF SECS. 8(A)(1), (3),
AND (5).  HOWEVER, WE THINK THAT THE BOARD CONSTRUES ITS FUNCTIONS TOO
EXPANSIVELY WHEN IT CLAIMS GENERAL AUTHORITY TO DEFINE NATIONAL LABOR
POLICY BY BALANCING THE COMPETING INTERESTS OF LABOR AND MANAGEMENT. 

WHILE A PRIMARY PURPOSE OF THE NATIONAL LABOR RELATIONS ACT WAS TO
REDRESS THE PERCEIVED UNBALANCE OF ECONOMIC POWER BETWEEN LABOR AND
MANAGEMENT, IT SOUGHT TO ACCOMPLISH THAT RESULT BY CONFERRING CERTAIN
AFFIRMATIVE RIGHTS ON EMPLOYEES AND BY PLACING CERTAIN ENUMERATED
RESTRICTIONS ON THE ACTIVITIES OF EMPLOYERS.  THE ACT PROHIBITED ACTS
WHICH INTERFERED WITH, RESTRAINED, OR COERCED EMPLOYEES IN THE EXERCISE
OF THEIR RIGHTS TO ORGANIZE A UNION, TO BARGAIN COLLECTIVELY, AND TO
STRIKE; IT PROSCRIBED DISCRIMINATION IN REGARD TO TENURE AND OTHER
CONDITIONS OF EMPLOYMENT TO DISCOURAGE MEMBERSHIP IN ANY LABOR
ORGANIZATION.  THE CENTRAL PURPOSE OF THESE PROVISIONS WAS TO PROTECT
EMPLOYEE SELF-ORGANIZATION AND THE PROCESS OF COLLECTIVE BARGAINING
FROM DISRUPTIVE INTERFERENCES BY EMPLOYERS.  HAVING PROTECTED EMPLOYEE
ORGANIZATION IN COUNTERVAILANCE TO THE EMPLOYERS' BARGAINING POWER, AND
HAVING ESTABLISHED A SYSTEM OF COLLECTIVE BARGAINING WHEREBY THE NEWLY
COEQUAL ADVERSARIES MIGHT RESOLVE THEIR DISPUTES, THE ACT ALSO
CONTEMPLATED RESORT TO ECONOMIC WEAPONS SHOULD MORE PEACEFUL MEASURES
NOT AVAIL.  SECTIONS 8(A)(1) AND (3) DO NOT GIVE THE BOARD A GENERAL
AUTHORITY TO ASSESS THE RELATIVE ECONOMIC POWER OF THE ADVERSARIES IN
THE BARGAINING PROCESS AND TO DENY WEAPONS TO ONE PARTY OR THE OTHER
BECAUSE OF ITS ASSESSMENT OF THAT PARTY'S BARGAINING POWER.  LABOR
BOARD V. BROWN, ANTE, P. 278.  IN THIS CASE THE BOARD HAS, IN ESSENCE,
DENIED THE USE OF THE BARGAINING LOCKOUT TO THE EMPLOYER BECAUSE OF ITS
CONVICTION THAT USE OF THIS DEVICE WOULD GIVE THE EMPLOYER "TOO MUCH
POWER."  IN SO DOING, THE BOARD HAS STRETCHED SECS. 8(A)(1) AND (3) FAR
BEYOND THEIR FUNCTIONS OF PROTECTING THE RIGHTS OF EMPLOYEE
ORGANIZATION AND COLLECTIVE BARGAINING.  WHAT WE HAVE RECENTLY SAID IN
A CLOSELY RELATED CONTEXT IS EQUALLY APPLICABLE HERE:  "WHEN THE BOARD
MOVES IN THIS AREA  ...  IT IS FUNCTIONING AS AN ARBITER OF THE SORT OF
ECONOMIC WEAPONS THE PARTIES CAN USE IN SEEKING TO GAIN ACCEPTANCE OF
THEIR BARGAINING DEMANDS.  IT HAS SOUGHT TO INTRODUCE SOME STANDARD OF
PROPERLY 'BALANCED' BARGAINING POWER, OR SOME NEW DISTINCTION OF
JUSTIFIABLE AND UNJUSTIFIABLE, PROPER AND 'ABUSIVE' ECONOMIC WEAPONS
INTO  ...  THE ACT  ...  .  WE HAVE EXPRESSED OUR BELIEF THAT THIS
AMOUNTS TO THE BOARD'S ENTRANCE INTO THE SUBSTANTIVE ASPECTS OF THE
BARGAINING PROCESS TO AN EXTENT CONGRESS HAS NOT COUNTENANCED."  LABOR
BOARD V. INSURANCE AGENTS' INTERNATIONAL UNION, 361 U.S. 477, 497-498. 

WE ARE UNABLE TO FIND THAT ANY FAIR CONSTRUCTION OF THE PROVISIONS
RELIED ON BY THE BOARD IN THIS CASE CAN SUPPORT ITS FINDING OF AN
UNFAIR LABOR PRACTICE.  INDEED, THE ROLE ASSUMED BY THE BOARD IN THIS
AREA IS FUNDAMENTALLY INCONSISTENT WITH THE STRUCTURE OF THE ACT AND
THE FUNCTION OF THE SECTIONS RELIED UPON.  THE DEFERENCE OWED TO AN
EXPERT TRIBUNAL CANNOT BE ALLOWED TO SLIP INTO A JUDICIAL INERTIA WHICH
RESULTS IN THE UNAUTHORIZED ASSUMPTION BY AN AGENCY OF MAJOR POLICY
DECISIONS PROPERLY MADE BY CONGRESS.  ACCORDINGLY, WE HOLD THAT AN
EMPLOYER VIOLATES NEITHER SEC. 8(A)(1) NOR SEC. 8(A)(3) WHEN, AFTER A
BARGAINING IMPASSE HAS BEEN REACHED, HE TEMPORARILY SHUTS DOWN HIS
PLANT AND LAYS OFF HIS EMPLOYEES FOR THE SOLE PURPOSE OF BRINGING
ECONOMIC PRESSURE TO BEAR IN SUPPORT OF HIS LEGITIMATE BARGAINING
POSITION.  REVERSED. 

FN1  142 N.L.R.B. 1362, ENFORCED, 118 U.S. APP. D.C. 78, 331 F.2D 839
(1964). 

NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 8(A), 61 STAT. 140, 29
U.S.C. SEC. 158(A) (1958 ED.):  "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  ...  ."  NATIONAL LABOR RELATIONS
ACT, AS AMENDED, SEC. 7, 61 STAT. 140, 29 U.S.C. SEC. 157 (1958 ED.):
"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN, OR
ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT  ...  ." 

FN2  COMPARE LABOR BOARD V. DALTON BRICK & TILE CORP., 301 F.2D 886
(C.A. 5TH CIR. 1962); MORAND BROS. BEVERAGE CO. V. LABOR BOARD, 190
F.2D 576 (C.A. 7TH CIR. 1951), 204 F.2D 529 (1953), WITH QUAKER STATE
OIL REFINING CORP. V. LABOR BOARD, 270 F.2D 40 (C.A. 3D CIR. 1959);
UTAH PLUMBING & HEATING CONTRACTORS ASSN. V. LABOR BOARD, 294 F.2D 165
(C.A. 10TH CIR. 1961). 

FN3  THE DISSENTING MEMBERS OF THE BOARD TOOK THE VIEW THAT THE
INDEFINITE EXTENSION WOULD NOT HAVE AFFORDED THE EMPLOYER ENFORCIBLE
PROTECTION AGAINST A STRIKE.  142 N.L.R.B., AT 1368. 

FN4  THE COMPLAINT WAS LIMITED TO THE CHICAGO YARD. 

FN5  ALTHOUGH THE COMPLAINT STATED A VIOLATION OF SEC. 8(A)(5) AS
WELL, THE BOARD MADE NO FINDINGS AS TO THIS CLAIM, BELIEVING THAT THERE
WOULD HAVE BEEN NO POINT IN ENTERING A BARGAINING ORDER BECAUSE THE
PARTIES HAD LONG SINCE EXECUTED AN AGREEMENT.  THE PASSAGE QUOTED BELOW
IN THE TEXT OF THIS OPINION FROM LABOR BOARD V. INSURANCE AGENTS'
INTERNATIONAL UNION, 361 U.S. 477 (SEE PP. 317-318, INFRA), HAS EVEN
MORE DIRECT APPLICATION TO THE SEC. 8(A)(5) QUESTION.  SEE ALSO LABOR
BOARD V. DALTON BRICK & TILE CORP., 301 F.2D 886, 894-895 (C.A. 5TH
CIR. 1962). 

FN6  E.G., UTAH PLUMBING & HEATING CONTRACTORS ASSN., 126 N.L.R.B.
973; QUAKER STATE OIL REFINING CORP., 121 N.L.R.B. 334. 

FN7  THE BOARD'S INITIAL VIEW WAS THAT SUCH LOCKOUTS ARE UNLAWFUL. 
MORRAND BROS. BEVERAGE CO., 91 N.L.R.B. 409; DAVIS FURNITURE CO., 100
N.L.R.B. 1016.  THE BOARD LATER EMBRACED THE CONTRARY VIEW, BUFFALO
LINEN SUPPLY CO., SUPRA, A POSITION EARLIER TAKEN BY THE NINTH CIRCUIT
IN REVERSING THE DAVIS FURNITURE CASE SUB NOM. LEONARD V. LABOR BOARD,
265 F.2D 355 (1953). 

FN8  CONTRARY TO THE VIEWS EXPRESSED IN A CONCURRING OPINION FILED IN
THIS CASE, WE INTIMATE NO VIEW WHATEVER AS TO THE CONSEQUENCES WHICH
WOULD FOLLOW HAD THE EMPLOYER REPLACED ITS EMPLOYEES WITH PERMANENT
REPLACEMENTS OR EVEN TEMPORARY HELP.  CF. LABOR BOARD V. MACKAY RADIO &
TELEGRAPH CO., 304 U.S. 333. 

FN9  NATIONAL LABOR RELATIONS ACT, AS AMENDED, SEC. 13, 61 STAT. 151,
29 U.S.C. SEC. 163 (1958 ED.):  "NOTHING IN THIS SUBCHAPTER, EXCEPT AS
SPECIFICALLY PROVIDED FOR HEREIN, SHALL BE CONSTRUED SO AS EITHER TO
INTERFERE WITH OR IMPEDE OR DIMINISH IN ANY WAY THE RIGHT TO STRIKE, OR
TO AFFECT THE LIMITATIONS OR QUALIFICATIONS ON THAT RIGHT." 

FN10  OF COURSE TO THE EXTENT THAT THE EMPLOYER-INDUCED WORK STOPPAGE
DID NOT ACCOMPLISH OBJECTIVES WHICH COULD BE ACHIEVED BY ANCILLARY
MEASURES, SUCH AS PICKETING, THE UNION WOULD NOT BE PRECLUDED FROM
EMPLOYING THOSE MEASURES. 

FN11  1 LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT,
1935, 3 (HEREAFTER LEG.  HIST.). SECTION 4 OF THE BILL PROVIDED: 

"EMPLOYEES SHALL HAVE THE RIGHT TO ORGANIZE AND JOIN LABOR
ORGANIZATIONS, AND TO ENGAGE IN CONCERTED ACTIVITIES, EITHER IN LABOR
ORGANIZATIONS OR OTHERWISE, FOR THE PURPOSE OF ORGANIZING AND
BARGAINING COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING
OR FOR OTHER PURPOSES OF MUTUAL AID OR PROTECTION."  IBID. 

FN12  1 LEG.  HIST.  406, 545, 570, 946. 

FN13  S. 2926, SEC. 3(2): 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR EMPLOYEES TO ATTEMPT, BY
INTERFERENCE OR COERCION, TO IMPAIR THE EXERCISE BY EMPLOYERS OF THE
RIGHT TO JOIN OR FORM EMPLOYER ORGANIZATIONS AND TO DESIGNATE
REPRESENTATIVES OF THEIR OWN CHOOSING FOR THE PURPOSE OF COLLECTIVE
BARGAINING."  1 LEG.  HIST. 1087. 

FN14  S. 2926, SEC. 3(1): 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO ATTEMPT, BY
INTERFERENCE OR COERCION, TO IMPAIR THE EXERCISE BY EMPLOYEES OF THE
RIGHT TO FORM OR JOIN LABOR ORGANIZATIONS, TO DESIGNATE REPRESENTATIVES
OF THEIR OWN CHOOSING, AND TO ENGAGE IN CONCERTED ACTIVITIES FOR THE
PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION." 
IBID. 

FN15  RESPONDENT'S BRIEF 17. 

MR. JUSTICE WHITE, CONCURRING IN THE RESULT. 

THE COURT TODAY HOLDS THAT THE USE OF ECONOMIC WEAPONS BY AN EMPLOYER
FOR THE PURPOSE OF IMPROVING HIS BARGAINING POSITION CAN NEVER VIOLATE
THE BROAD PROVISIONS OF SECS. 8(A)(1) AND (3) OF THE NLRA AND HENCE A
BARGAINING LOCKOUT OF EMPLOYEES IN RESISTANCE TO DEMANDS OF A UNION IS
INVARIABLY EXEMPT FROM THE PROSCRIPTIONS OF THE ACT.  AS MY BROTHER
GOLDBERG WELL POINTS OUT, THE COURT APPLIES LEGAL STANDARDS THAT CANNOT
BE RECONCILED WITH DECISIONS OF THIS COURT DEFINING THE BOARD'S
FUNCTIONS IN APPLYING THESE SECTIONS OF THE ACT AND DOES SO WITHOUT
PAUSING TO ASCERTAIN IF THE BOARD'S FACTUAL PREMISES ARE SUPPORTED BY
SUBSTANTIAL EVIDENCE.  I ALSO THINK THE COURT, IN THE PROCESS OF
ESTABLISHING THE LEGALITY OF A BARGAINING LOCKOUT, OVERLOOKS THE
UNCONTRADICTED FACTS IN THIS RECORD AND THE ACCEPTED FINDINGS OF THE
TRIAL EXAMINER WHICH INDICATE TO ME THAT THE EMPLOYER'S CLOSING OF THE
CHICAGO YARD WAS NOT A "LOCKOUT" FOR THE PURPOSE OF BRINGING ECONOMIC
PRESSURE TO BREAK AN IMPASSE AND TO SECURE MORE FAVORABLE CONTRACT
TERMS. 

IN MY VIEW THE ISSUE POSED IN THIS CASE IS WHETHER AN EMPLOYER WHO IN
FACT ANTICIPATES A STRIKE MAY INFORM CUSTOMERS OF THIS BELIEF TO
PROTECT HIS COMMERCIAL RELATIONSHIP WITH CUSTOMERS AND TO SAFEGUARD
THEIR PROPERTY, THEREBY DISCOURAGING BUSINESS, AND THEN LAY OFF
EMPLOYEES FOR WHOM THERE IS NO AVAILABLE WORK.  I, LIKE THE TRIAL
EXAMINER, THINK HE MAY, AND DO NOT THINK THIS CONDUCT CAN BE IMPEACHED
UNDER SECS. 8(A)(1) AND (3) BY MERELY ASSERTING THAT THE EMPLOYER AND
HIS CUSTOMERS WERE ERRONEOUS IN BELIEVING A STRIKE WAS IMMINENT. 

THE BOARD, THE COURT OF APPEALS, AND PRESUMABLY THIS COURT, ACCEPT
ALL THE FINDINGS OF THE TRIAL EXAMINER, EXCEPT THE FINDING THAT THE
EMPLOYER'S HONEST BELIEF THAT A STRIKE WOULD OCCUR HAD A REASONABLE
BASIS IN FACT.  THE EXAMINER FOUND THAT AT THE TIME OF THE LAYOFFS AT
THE CHICAGO YARD THERE WAS NO WORK THERE AND VERY LITTLE AT THE OTHER
YARDS, WHICH REMAINED OPEN UNTIL ALL AVAILABLE WORK WAS COMPLETED. 
DURING PAST SLACK SUMMER SEASONS A NUCLEUS CREW HAD BEEN RETAINED IN
THE YARDS TO PERFORM EMERGENCY REPAIR JOBS FOR SHIP BUILDING'S 14 OR 15
REGULAR CUSTOMERS.  ABSENT A JOB, THESE EMPLOYEES ALSO DID MAINTENANCE
WORK, BUT THE ACCOMMODATION OF THESE REGULAR CUSTOMERS AND RETENTION OF
THEIR GOOD WILL WAS THE ONLY REASON FOR REMAINING OPEN, THE OPERATIONS
BEING OTHERWISE UNPROFITABLE.  THE CUSTOMERS LEARNED OF THE LABOR
UNREST AT THE YARDS THROUGH NEWSPAPER ACCOUNTS AND SHIP BUILDING'S
PLANT MANAGERS, WHO FELT CONSTRAINED TO TELL LONG-STANDING CUSTOMERS OF
THE POSSIBILITY OF A STRIKE DURING THE COURSE OF REPAIR WORK.  THE
MANAGER OF THE BUFFALO YARD WAS OF THE OPINION THAT "THE OWNER THAT
BROUGHT THE BOAT INTO THE DOCK WOULD HAVE ROCKS IN HIS HEAD IF HE WOULD
HAVE TAKEN THE CHANCE."  WORK WAS NOT REFUSED, HOWEVER.  THERE WERE
FEW, IF ANY, REQUESTS FOR REPAIRS DURING THAT SUMMER, A SUBSTANTIAL
NUMBER OF SHIPOWNERS BEING RELUCTANT TO BRING THEIR VESSELS INTO THE
YARD.  THE LAST JOB LEFT THE CHICAGO YARD THREE WEEKS BEFORE CLOSING. 
THE EXAMINER FOUND THAT AT THE TIME OF CLOSING, SHIP BUILDING HAD "MEN
WORKING ON MAINTENANCE IN THE YARDS, WITH NO WORK ON HAND, NONE
ANTICIPATED, AND CUSTOMERS REFUSING TO SEND WORK IN."  ONLY THOSE
WORKERS FOR WHOM THERE WAS NO WORK WERE LAID OFF AND NO NEW JOBS WERE
TAKEN ON. THE EXAMINER NOTED THAT THE EMPLOYER WAS NOT UNAWARE OF THE
UNION'S NEGOTIATING STRATEGY AND OF THE POSSIBLE EFFECT OF A CLOSING ON
THIS STRATEGY.  BUT IN CAREFULLY ASSESSING ALL THE TESTIMONY HE FOUND
THAT AT MOST THESE CONSIDERATIONS PARTIALLY COLORED THE EMPLOYER'S
MOTIVATION.  THE EXAMINER CONCLUDED FROM THESE FACTS THAT "THE ECONOMIC
INDUCEMENTS SO OVERSHADOWED ANYTHING IMPROPER THAT THEY MUST BE
CONSIDERED PRIMARY, PARTICULARLY WHEN THE ECONOMIC FACTORS WHICH
SUPPORTED THEM AROSE THROUGH NO FAULT OF RESPONDENT AND ANTECEDED THE
LAYOFF." 

GIVEN THE FINDING THAT THE CLOSING WAS DUE TO LACK OF WORK AT THE
CHICAGO YARD, IT IS NO ANSWER TO SAY, AS THE BOARD DOES, THAT THERE WAS
NO REASONABLE BASIS TO ANTICIPATE A STRIKE AND HENCE THE CLOSING WAS AN
OFFENSIVE BARGAINING LOCKOUT.  WHETHER THERE WAS A REASONABLE BASIS TO
FEAR A STRIKE OR NOT, THE FACT REMAINS THAT THE EMPLOYER, AND ITS
CUSTOMERS, DID FEAR A STRIKE, AND CONSEQUENTLY THERE WAS NO WORK FOR
THE EMPLOYEES.  IT HAS LONG BEEN THE LAW THAT AN EMPLOYER IS FREE TO
MODIFY OR SHUT DOWN OPERATIONS TEMPORARILY FOR BUSINESS REASONS
UNRELATED TO THE EXERCISE BY HIS EMPLOYEES OF STATUTORY RIGHTS, AND THE
REASONABLENESS OF AN EMPLOYER'S RESPONSE TO BUSINESS EXIGENCIES IS NOT
ORDINARILY SUBJECT TO REVIEW.  SEE PEPSI-COLA BOTTLING CO., 145
N.L.R.B. 785 (1964); ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC.,
105 N.L.R.B. 767 (1953); CF. FIBREBOARD PAPER PRODUCTS V. LABOR BOARD,
379 U.S. 203; TEXTILE WORKERS UNION V. DARLINGTON MFG. CO., DECIDED
TODAY, ANTE, P. 263.  THERE IS NOTHING IN THE DECISIONS OF THE NLRB,
INCLUDING THIS CASE, WHICH WOULD INDICATE THAT THERE ARE OCCASIONS WHEN
AN EMPLOYER MAY NOT TRUTHFULLY INFORM HIS CUSTOMERS OF A LABOR DISPUTE
AND HIS FEAR OF A STRIKE TO PROTECT HIS BUSINESS AND THEIR PROPERTY AND
MAY NOT LAY OFF EMPLOYEES FOR LACK OF WORK.  INDEED, THESE DECISIONS
HOLD THAT AN EMPLOYER MAY SHUT DOWN IN RESPONSE TO SUCH ECONOMIC
CONDITIONS, EVEN THOUGH THESE CONDITIONS ARE THE RESULT OF PROTECTED
CONCERTED ACTIVITIES, PEPSI-COLA BOTTLING CO., 145 N.L.R.B. 785 (1964);
ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., 105 N.L.R.B. 767
(1953); H.H. ZIMMERLI, 133 N.L.R.B.  1217 (1961), SO LONG AS THE
CREATION OF OR ALLEGED RELIANCE ON THESE CONDITIONS IS NOT A SUBTERFUGE
FOR A LOCKOUT, RIPLEY MFG. CO., 138 N.L.R.B. 1452 (1962); SAVOY
LAUNDRY, INC., 137 N.L.R.B. 306 (1962); NEW ENGLAND WEB, INC., 135
N.L.R.B. 1019 (1962).  THERE IS NO EVIDENCE HERE THAT THE LACK OF WORK
WAS A RESULT OF THE EMPLOYER'S DECISION OR DESIRE TO LAY OFF ITS
EMPLOYEES AND THE BOARD DID NOT SO FIND.  I DO NOT NOW DETERMINE
WHETHER A TEMPORARY ECONOMIC SHUTDOWN COULD EVER BE FOUND TO VIOLATE
THE ACT.  HERE THE BOARD HAS GIVEN NO REASONS, NO RATIONALE, TO SHOW
HOW THIS CLOSING VIOLATED THE ACT, EXCEPT TO SAY THE CLOSING WAS A
BARGAINING LOCKOUT.  A LOCKOUT IS THE REFUSAL BY AN EMPLOYER TO FURNISH
AVAILABLE WORK TO HIS REGULAR EMPLOYEES.  IT IS APPARENT THAT THE
CONSIDERATIONS WHICH FAULT AN EMPLOYER FOR REFUSING TO FURNISH
AVAILABLE WORK ARE QUITE DIFFERENT FROM THOSE WHICH WOULD PROHIBIT HIM
FROM LAYING OFF WORKERS FOR WHOM THERE IS NO WORK.  HENCE, RELIANCE ON
THE BOARD'S LOCKOUT CASES DOES NOT EXPLAIN, NO LESS SUPPORT, THE RESULT
REACHED IN THIS CASE.  THE COMPELLING CONCLUSION IS THAT THE BOARD HAS
FAILED TO "DISCLOSE THE BASIS OF ITS ORDER" AND TO "GIVE CLEAR
INDICATION THAT IT HAS EXERCISED THE DISCRETION WITH WHICH CONGRESS HAS
EMPOWERED IT."  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 197. 
THIS IS NOT TO SAY THE BOARD HAS REACHED AN ERRONEOUS BALANCE IN REGARD
TO THE BARGAINING LOCKOUT; IT IS TO SAY THAT THE BARGAINING LOCKOUT
ANALYSIS WILL NOT SUFFICE TO JUDGE THE LEGALITY OF THE LAYOFFS IN THIS
CASE. 

THE COURT, LIKE THE BOARD, ASSIMILATES THE EMPLOYER'S CONDUCT HERE TO
THE BARGAINING LOCKOUT AND RESTRIKES THE BALANCE; IT DISMISSES THE
ACTUAL JUSTIFICATION FOR THE CLOSING WITH THE ASSERTION THAT THE
"EXAMINER FOUND  ...  THE CLOSING WAS NOT DUE TO LACK OF WORK.  DESPITE
SIMILARLY SLACK SEASONS IN THE PAST, THE EMPLOYER HAD FOR 17 YEARS
RETAINED A NUCLEUS CREW TO DO MAINTENANCE WORK AND REMAIN READY TO TAKE
SUCH WORK AS MIGHT COME IN."  ANTE, AT 304.  THIS IS PUZZLING, SINCE
THE EXAMINER FOUND PRECISELY THE CONTRARY, AND NEITHER THE BOARD NOR
THE COURT OF APPEALS TOOK ISSUE WITH THESE FINDINGS.  THE EXAMINER SAID
THAT A NUCLEUS CREW WAS MAINTAINED IN THE PAST ONLY IN THE EXPECTATION
OF EMERGENCY WORK, THE PERFORMANCE OF SUCH WORK BEING THOUGHT NECESSARY
TO MAINTAIN CUSTOMER GOOD WILL.  BECAUSE OF THE LABOR UNCERTAINTY AND
THE DECISION THAT UNDERTAKING EMERGENCY JOBS WOULD JEOPARDIZE CUSTOMER
RELATIONS, THERE WAS NO EXPECTATION OF WORK DURING THE SUMMER OF 1961,
UNLIKE PAST YEARS.  SINCE I THINK AN EMPLOYER'S DECISION TO LAY OFF
EMPLOYEES BECAUSE OF LACK OF WORK IS NOT ORDINARILY BARRED BY THE ACT,
AND SINCE NEITHER THE BOARD NOR THE COURT PROPERLY CAN IGNORE THIS
CLAIM, I WOULD REVERSE THE BOARD'S ORDER, BUT WITHOUT REACHING OUT TO
DECIDE AN ISSUE NOT AT ALL PRESENTED BY THIS CASE. 

SINCE THE COURT DOES RULE ON THE STATUS OF THE BARGAINING LOCKOUT
UNDER THE NATIONAL LABOR RELATIONS ACT, I FEEL CONSTRAINED TO STATE MY
VIEWS.  THIS COURT HAS LONG RECOGNIZED THAT THE LABOR RELATIONS ACT
"DID NOT UNDERTAKE THE IMPOSSIBLE TASK OF SPECIFYING IN PRECISE AND
UNMISTAKABLE LANGUAGE EACH INCIDENT WHICH WOULD CONSTITUTE AN UNFAIR
LABOR PRACTICE," BUT "LEFT TO THE BOARD THE WORK OF APPLYING THE ACT'S
GENERAL PROHIBITORY LANGUAGE IN THE LIGHT OF THE INFINITE COMBINATIONS
OF EVENTS WHICH MIGHT BE CHARGED AS VIOLATIVE OF ITS TERMS."  REPUBLIC
AVIATION CORP. V. LABOR BOARD, 324 U.S. 793, 798.  THUS THE LEGAL
STATUS OF THE BARGAINING LOCKOUT, AS THE COURT INDICATED IN LABOR BOARD
V. TRUCK DRIVERS UNION, 353 U.S. 87, 96, IS TO BE DETERMINED BY "THE
BALANCING OF THE CONFLICTING LEGITIMATE INTERESTS." 

THE BOARD HAS BALANCED THESE INTERESTS HERE - THE VALUE OF THE
LOCKOUT AS AN ECONOMIC WEAPON AGAINST ITS IMPACT ON PROTECTED CONCERTED
ACTIVITIES, INCLUDING THE RIGHT TO STRIKE, FOR WHICH THE ACT HAS
SPECIAL SOLICITUDE, LABOR BOARD V. ERIE RESISTOR CORP., 373 U.S. 221,
234 - AND HAS DETERMINED THAT THE EMPLOYER'S INTEREST IN OBTAINING A
BARGAINING VICTORY DOES NOT OUTWEIGH THE DAMAGING CONSEQUENCES OF THE
LOCKOUT.  IT DETERMINED THAT FOR AN EMPLOYER TO DEPRIVE EMPLOYEES OF
THEIR LIVELIHOOD BECAUSE OF DEMANDS MADE BY THEIR REPRESENTATIVES AND
IN ORDER TO COMPEL SUBMISSION TO THE EMPLOYER'S DEMANDS, COERCES
EMPLOYEES IN THEIR EXERCISE OF THE RIGHT TO BARGAIN COLLECTIVELY AND
DISCOURAGES RESORT TO THAT RIGHT.  AND THIS INTERFERES WITH THE RIGHT
TO STRIKE, SHARPLY REDUCING THE EFFECTIVENESS OF THAT WEAPON AND
DENYING THE UNION CONTROL OVER THE TIMING OF THE ECONOMIC CONTEST.  THE
COURT REJECTS THIS REASONING ON THE GROUND THAT THE LOCKOUT IS NOT
CONDUCT "DEMONSTRABLY SO DESTRUCTIVE OF COLLECTIVE BARGAINING THAT THE
BOARD NEED NOT INQUIRE INTO EMPLOYER MOTIVATION."  ANTE, AT 309.  SINCE
THE EMPLOYER'S TRUE MOTIVE IS TO BRING ABOUT SETTLEMENT OF THE DISPUTE
ON FAVORABLE TERMS, THERE CAN BE NO SUBSTANTIAL DISCOURAGEMENT OF UNION
MEMBERSHIP OR INTERFERENCE WITH CONCERTED ACTIVITIES.  AND THE RIGHT TO
STRIKE IS ONLY THE RIGHT TO CEASE WORK, WHICH THE LOCKOUT ONLY
ENCOURAGES RATHER THAN DISPLACES. 

THIS TOUR DE FORCE DENIES THE BOARD'S ASSESSMENT OF THE IMPACT ON
EMPLOYEE RIGHTS AND THIS TRUNCATED DEFINITION OF THE RIGHT TO STRIKE,
NOWHERE SUPPORTED IN THE ACT, IS UNPRECEDENTED.  UNTIL TODAY THE
EMPLOYER'S TRUE MOTIVE OR SOLE PURPOSE HAS NOT ALWAYS BEEN
DETERMINATIVE OF THE IMPACT ON EMPLOYEE RIGHTS.  REPUBLIC AVIATION
CORP. V. LABOR BOARD, 324 U.S. 793; RADIO OFFICERS' UNION V. LABOR
BOARD, 347 U.S. 17; LABOR BOARD V. TRUCK DRIVERS UNION, 353 U.S. 87;
LABOR BOARD V. ERIE RESISTOR CORP., 373 U.S. 221; LABOR BOARD V. BURNUP
& SIMS, INC., 379 U.S. 21.  THE IMPORTANCE OF THE EMPLOYER'S RIGHT TO
HIRE REPLACEMENTS TO CONTINUE OPERATIONS, OR OF HIS RIGHT TO FIRE
EMPLOYEES HE HAS GOOD REASON TO BELIEVE ARE GUILTY OF GROSS MISCONDUCT
WAS NOT DOUBTED IN ERIE RESISTOR AND BURNUP & SIMS.  NONETHELESS THE
BOARD WAS UPHELD IN ITS DETERMINATION THAT THE AWARD OF SUPERSENIORITY
TO STRIKE REPLACEMENTS AND DISCHARGE OF THE SUSPECTED EMPLOYEE WERE
UNFAIR LABOR PRACTICES.  OF COURSE, SUCH CONDUCT IS TAKEN IN THE
PURSUIT OF LEGITIMATE BUSINESS ENDS, BUT NONETHELESS THE "CONDUCT DOES
SPEAK FOR ITSELF  ...  IT CARRIES WITH IT UNAVOIDABLE CONSEQUENCES
WHICH THE EMPLOYER NOT ONLY FORESAW BUT WHICH HE MUST HAVE INTENDED." 
ERIE RESISTOR, 373 U.S., AT 228.  I WOULD HAVE THOUGHT IT APPARENT THAT
LOSS OF JOBS FOR AN INDEFINITE PERIOD, AND THE THREATENED LOSS OF JOBS,
WHICH THE COURT'S DECISION ASSUREDLY SANCTIONS, CF.  TEXTILE WORKERS
UNION V. DARLINGTON MFG. CO., DECIDED TODAY, ANTE, AT 274, N. 20,
BECAUSE OF THE UNION'S NEGOTIATING ACTIVITY, ITSELF PROTECTED CONDUCT
UNDER SEC. 7, HARDLY ENCOURAGE AFFILIATION WITH A UNION. 

IF THE COURT MEANS WHAT IT SAYS TODAY, AN EMPLOYER MAY NOT ONLY LOCK
OUT AFTER IMPASSE CONSISTENT WITH SECS. 8(A)(1) AND (3), BUT REPLACE
HIS LOCKED-OUT EMPLOYEES WITH TEMPORARY HELP, CF. LABOR BOARD V. BROWN,
ANTE, P. 278, OR PERHAPS PERMANENT REPLACEMENTS, AND ALSO LOCK OUT LONG
BEFORE AN IMPASSE IS REACHED.  MAINTAINING OPERATIONS DURING A LABOR
DISPUTE IS AT LEAST EQUALLY AS IMPORTANT AN INTEREST AS ACHIEVING A
BARGAINING VICTORY, SEE LABOR BOARD V. MACKAY RADIO & TELEGRAPH CO.,
304 U.S. 333, AND A SHUTDOWN DURING OR BEFORE NEGOTIATIONS ADVANCES AN
EMPLOYER'S BARGAINING POSITION AS MUCH AS A LOCKOUT AFTER IMPASSE.  AND
THE HIRING OF REPLACEMENTS IS WHOLLY CONSISTENT WITH THE EMPLOYER'S
INTENT "TO RESIST THE DEMANDS MADE OF IT IN THE NEGOTIATIONS AND TO
SECURE MODIFICATION OF THESE DEMANDS."  ANTE, AT 309.  I WOULD ALSO
ASSUME THAT UNDER SECS. 8(A)(1) AND (3) HE MAY LOCK OUT FOR THE SOLE
PURPOSE OF RESISTING THE UNION'S ASSERTION OF GRIEVANCES UNDER A
COLLECTIVE BARGAINING CONTRACT, ABSENT A NO-LOCKOUT CLAUSE.  GIVEN
THESE LEGITIMATE BUSINESS PURPOSES, THERE IS NO ANTIUNION MOTIVATION,
AND ABSENT SUCH MOTIVATION, A LOCKOUT CANNOT BE DEEMED DESTRUCTIVE OF
EMPLOYEE RIGHTS.  "INQUIRY INTO EMPLOYER MOTIVATION" MAY NOT BE
TRUNCATED.  ANTE, AT 312.  "PROPER ANALYSIS OF THE PROBLEM DEMANDS THAT
THE SIMPLE INTENTION TO SUPPORT THE EMPLOYER'S BARGAINING POSITION AS
TO COMPENSATION AND THE LIKE BE DISTINGUISHED FROM A HOSTILITY TO THE
PROCESS OF COLLECTIVE BARGAINING WHICH COULD SUFFICE TO RENDER A
LOCKOUT UNLAWFUL."  ANTE, AT 309.  I THINK THAT THE BOARD MAY ASSESS
THE IMPACT OF A BARGAINING LOCKOUT ON PROTECTED EMPLOYEE RIGHTS,
WITHOUT REGARD TO MOTIVATION, AND THAT THE COURT ERRS IN FAILING TO
GIVE DUE CONSIDERATION TO THE BOARD'S CONCLUSIONS IN THIS REGARD. 

THE BALANCE AND ACCOMMODATION OF "CONFLICTING LEGITIMATE INTERESTS"
IN LABOR RELATIONS DOES NOT ADMIT OF A SIMPLE SOLUTION AND A MYOPIC
FOCUS ON THE TRUE INTENT OR MOTIVE OF THE EMPLOYER HAS NOT BEEN THE
DETERMINATIVE STANDARD OF THE BOARD OR THIS COURT.  AS THE COURT POINTS
OUT, THERE ARE THINGS AN EMPLOYER MAY DO FOR BUSINESS REASONS WHICH ARE
INCONSISTENT WITH A RIGID OR LITERAL INTERPRETATION OF EMPLOYEE RIGHTS
UNDER THE ACT, SUCH AS THE RIGHT TO HIRE STRIKE REPLACEMENTS.  LABOR
BOARD V. MACKAY RADIO & TELEGRAPH CO., 304 U.S. 333.  BUT THERE ARE
JUST AS CLEARLY OTHERS WHICH HE MAY NOT.  REPUBLIC AVIATION, 324 U.S.
793; ERIE RESISTOR, 373 U.S. 221; BURNUP & SIMS, 379 U.S. 21.  A
LITERAL INTERPRETATION WILL NOT SUFFICE TO RECONCILE THESE CASES, NOR
TO JUSTIFY THE RESULT IN THE PRESENT CASE.  FOR IN SAYING AN EMPLOYER
MAY LOCK OUT ALL HIS EMPLOYEES, THE COURT FULLY IGNORES THE MOST
EXPLICIT STATUTORY RIGHT OF EMPLOYEES "TO REFRAIN FROM ANY OR ALL
CONCERTED ACTIVITIES."  NOR CAN THESE CASES BE EXPLAINED BY THE COURT'S
TEST THAT EMPLOYER CONDUCT IS NOT PROSCRIBED UNLESS IT IS "INHERENTLY
SO PREJUDICIAL TO UNION INTERESTS AND SO DEVOID OF SIGNIFICANT ECONOMIC
JUSTIFICATION," ANTE, AT 311, THAT TRUE MOTIVATION NEED NOT BE
INDEPENDENTLY SHOWN.  THE TEST IS CLEARLY ONE OF CHOOSING AMONG SEVERAL
MOTIVATIONS OR PURPOSES AND WEIGHING THE RESPECTIVE INTERESTS OF
EMPLOYERS AND EMPLOYEES.  AND I THINK THAT IS THE STANDARD THE COURT
APPLIES TO THE BARGAINING LOCKOUT IN THIS CASE, BUT WITHOUT HEEDING THE
FACT THE BALANCE IS FOR THE BOARD TO STRIKE IN THE FIRST INSTANCE. 

THE BOARD'S ROLE IN THIS AREA IS A "DELICATE TASK, REFLECTED IN PART
IN DECISIONS OF THIS COURT, OF WEIGHING THE INTERESTS OF EMPLOYEES IN
CONCERTED ACTIVITY AGAINST THE INTEREST OF THE EMPLOYER IN OPERATING
HIS BUSINESS IN A PARTICULAR MANNER."  ERIE RESISTOR, 373 U.S., AT
229.  ITS DECISIONS ARE NOT IMMUNE FROM ATTACK IN THIS COURT.  ITS
FINDINGS MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE AND ITS EXPLICATION
MUST FIT THE CASE BEFORE IT, BE ADEQUATE, AND BE BASED UPON THE POLICY
OF THE ACT AND AN ACCEPTABLE READING OF INDUSTRIAL REALITIES.  I WOULD
REVERSE THE BOARD'S DECISION HERE BECAUSE IT HAS NOT ARTICULATED A
RATIONAL CONNECTION BETWEEN THE FACTS FOUND AND THE DECISION MADE. 
"THIS IS NOT TO DEPRECATE, BUT TO VINDICATE (SEE PHELPS DODGE CORP. V.
LABOR BOARD, 313 U.S. 177, 197), THE ADMINISTRATIVE PROCESS, FOR THE
PURPOSE OF THE RULE IS TO AVOID 'PROPELLING THE COURT INTO THE DOMAIN
WHICH CONGRESS HAS SET ASIDE EXCLUSIVELY FOR THE ADMINISTRATIVE
AGENCY.'  332 U.S., AT 196."  BURLINGTON TRUCK LINES V. UNITED STATES,
371 U.S. 156, 169.  IT IS TO ASK THE BOARD TO SHOW THAT IT HAS
EXERCISED THE DISCRETION WHICH IT HAS UNDER THE ACT.  SUCH INSISTENCE
ON A REASONED DECISION IS A FOREMOST FUNCTION OF JUDICIAL REVIEW,
ESPECIALLY WHERE CONFLICTING SIGNIFICANT INTERESTS ARE SOUGHT TO BE
ACCOMMODATED.  COMPARE SECURITIES & EXCHANGE COMM'N V. CHENERY CORP.,
318 U.S. 80, WITH SECURITIES & EXCHANGE COMM'N V. CHENERY CORP., 332
U.S. 194.  BUT THIS FUNCTION IS NOT TO REJECT THE BOARD'S REASONED
ASSESSMENT OF THE IMPACT OF A PARTICULAR ECONOMIC WEAPON ON EMPLOYEE
RIGHTS.  IT IS CERTAINLY NOT TO RESTRIKE THE BALANCE WHICH THE BOARD
HAS REACHED. 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING
IN THE RESULT. 

I CONCUR IN THE COURT'S CONCLUSION THAT THE EMPLOYER'S LOCKOUT IN
THIS CASE WAS NOT A VIOLATION OF EITHER SEC. 8(A)(1) OR SEC. 8(A)(3) OF
THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 452, AS AMENDED, 29 U.S.C.
SECS. 158(A)(1) AND (3) (1958 ED.), AND I THEREFORE JOIN IN THE
JUDGMENT REVERSING THE COURT OF APPEALS.  I REACH THIS RESULT NOT FOR
THE COURT'S REASONS, BUT BECAUSE, FROM THE PLAIN FACTS REVEALED BY THE
RECORD, IT IS CRYSTAL CLEAR THAT THE EMPLOYER'S LOCKOUT HERE WAS
JUSTIFIABLE.  THE VERY FACTS RECITED BY THE COURT IN ITS OPINION SHOW
THAT THIS EMPLOYER LOCKED OUT ITS EMPLOYEES IN THE FACE OF A THREATENED
STRIKE UNDER CIRCUMSTANCES WHERE, HAD THE CHOICE OF TIMING BEEN LEFT
SOLELY TO THE UNIONS, THE EMPLOYER AND ITS CUSTOMERS WOULD HAVE BEEN
SUBJECT TO ECONOMIC INJURY OVER AND BEYOND THE LOSS OF BUSINESS
NORMALLY INCIDENT TO A STRIKE UPON THE TERMINATION OF THE COLLECTIVE
BARGAINING AGREEMENT.  A LOCKOUT UNDER THESE CIRCUMSTANCES HAS BEEN
RECOGNIZED BY THE BOARD ITSELF TO BE JUSTIFIABLE AND NOT A VIOLATION OF
THE LABOR STATUTES.  BETTS CADILLAC OLDS, INC., 96 N.L.R.B. 268; SEE
PACKARD BELL ELECTRONICS CORP., 130 N.L.R.B. 1122; INTERNATIONAL SHOE
CO., 93 N.L.R.B. 907; DULUTH BOTTLING ASSN., 48 N.L.R.B. 1335; QUAKER
STATE OIL REFINING CORP., 121 N.L.R.B. 334, 337. 

THE TRIAL EXAMINER FOR THE LABOR BOARD FOUND THAT THE EMPLOYER
REASONABLY AND "HONESTLY BELIEVED THAT A STRIKE MIGHT TAKE PLACE
IMMEDIATELY, OR WHEN A VESSEL WAS DOCKED, OR THAT BARGAINING WOULD BE
DELAYED UNTIL CLOSER TO THE WINTER MONTHS WHEN RESPONDENT WOULD BE MORE
VULNERABLE," 142 N.L.R.B., AT 1382, AND THAT THE COMPANY "BY ITS
ACTIONS, THEREFORE, DID NOT VIOLATE  ...  THE ACT," 142 N.L.R.B., AT
1383.  THE BOARD DID NOT DISPUTE THE TRIAL EXAMINER'S FINDING THAT THE
EMPLOYER IN FACT BELIEVED THAT A STRIKE WAS THREATENED.  NOR DID IT
DENY THAT IF THE EMPLOYER REASONABLY BELIEVED THAT "THERE WAS A REAL
STRIKE THREAT," THE LOCKOUT WOULD BE JUSTIFIED.  142 N.L.R.B., AT
1364.  THE BOARD, HOWEVER, REJECTED THE ULTIMATE FINDING OF THE TRIAL
EXAMINER BECAUSE IT DISAGREED WITH HIS CONCLUSION THAT THE EMPLOYER
"HAD REASONABLE GROUNDS TO FEAR A STRIKE."  142 N.L.R.B., AT 1363.  THE
COURT OF APPEALS IN A SINGLE SENTENCE SUSTAINED THE BOARD'S HOLDING ON
THIS POINT CONCLUDING, WITHOUT DETAILED ANALYSIS, "THAT THE BOARD'S
FINDING THAT RESPONDENT HAD NO REASONABLE BASIS FOR FEARING A STRIKE IS
NOT WITHOUT THE REQUISITE RECORD SUPPORT."  331 F.2D 839, 840.  IN MY
VIEW THE BOARD'S CONCLUSION THAT THE EMPLOYER'S ADMITTED FEAR OF A
STRIKE WAS UNREASONABLE IS NOT ONLY WITHOUT THE REQUISITE RECORD
SUPPORT BUT IS AT COMPLETE VARIANCE WITH "THE ACTUALITIES OF INDUSTRIAL
RELATIONS," LABOR BOARD V. STEELWORKERS, 357 U.S. 357, 364, WHICH THE
BOARD IS TO TAKE INTO ACCOUNT IN EFFECTUATING THE NATIONAL LABOR
POLICY.    WE DO NOT DEAL WITH A CASE IN WHICH THE FACTS ARE DISPUTED
AND THE BOARD HAS RESOLVED TESTIMONIAL CONTROVERSIES.  THE FACTS HERE
ARE UNDISPUTED, AND A REVIEW OF THEM DEMONSTRATES THAT THE EMPLOYER'S
FEAR OF A STRIKE AT A TIME STRATEGICALLY SELECTED BY THE UNIONS TO
CAUSE IT MAXIMUM DAMAGE AND TO GIVE THE UNIONS THE MAXIMUM ECONOMIC
ADVANTAGE WAS TOTALLY REASONABLE. 

THE EMPLOYER COMPANY IS PRIMARILY ENGAGED IN REPAIRING SHIPS AND
OPERATES FOUR SHIPYARDS ON THE GREAT LAKES AT BUFFALO, NEW YORK, LORAIN
AND TOLEDO, OHIO, AND SOUTH CHICAGO, ILLINOIS.  AS THE COURT POINTS
OUT, THE EMPLOYER'S BUSINESS IS HIGHLY SEASONAL, CONCENTRATED IN THE
WINTER MONTHS WHEN THE GREAT LAKES ARE FROZEN OVER AND SHIPPING IS
IMPOSSIBLE.  SPEED IS OF THE UTMOST IMPORTANCE IN THIS BUSINESS, FOR
THE SHIPPING SEASON IS SHORT AND THE TIE-UP OF A SHIP'S RE-ENTRY INTO
SERVICE IN THE SPRING PRODUCES A SEVERE ECONOMIC IMPACT.  A WORK
STOPPAGE WHILE A SHIP IS IN THE YARDS CAN HAVE SERIOUS ECONOMIC
CONSEQUENCES BOTH FOR THE EMPLOYER AND FOR HIS CUSTOMERS.  CUSTOMERS
ARE JUSTIFIABLY WARY OF ENTRUSTING THEIR SHIPS TO THE YARDS AT A TIME
WHEN A COLLECTIVE BARGAINING DISPUTE IS UNRESOLVED.  FOR THIS REASON
THE EXPIRATION DATE OF A CONTRACT IN SITUATIONS SUCH AS THIS IS A VITAL
ISSUE IN COLLECTIVE BARGAINING.  THE EMPLOYER SEEKS AN EXPIRATION DATE
DURING THE SLACK SEASON; THE UNION SEEKS AN EXPIRATION DATE DURING THE
BUSY SEASON.  IN THIS CASE AS A RESULT OF PAST BARGAINING, THE
EMPLOYER'S CONTRACT EXPIRED ON AUGUST 1, RATHER THAN DURING THE BUSY
SEASON. 

FROM 1952 UNTIL 1961, WHEN THE NEGOTIATIONS NOW UNDER CONSIDERATION
BEGAN, THE EMPLOYER HAD NEGOTIATED FIVE TIMES WITH THE EIGHT UNIONS
HERE INVOLVED, AND IT HAD EXPERIENCED EXACTLY ONE STRIKE PER
NEGOTIATION.  THE STRIKES IN 1952, 1953, 1955, AND 1956 LASTED ABOUT
THREE WEEKS EACH, AND THE 1958 STRIKE CONTINUED FOR 10 WEEKS.  IN 1955
EMPLOYEES HAD ENGAGED IN A SLOWDOWN BEFORE THE AGREEMENT EXPIRED AND
THEREBY CAUGHT AN $8,000,000 SHIP IN THE YARD, THE USE OF WHICH WAS
LOST TO THE CUSTOMER FOR FOUR WEEKS DURING ITS BUSIEST SEASON.  IN
FEBRUARY 1961, AT THE HEIGHT OF THE BUSY SEASON, WILDCAT WORK STOPPAGES
OCCURRED IN CHICAGO AND BUFFALO. 

SHORTLY BEFORE MAY 1961 THE UNIONS NOTIFIED THE EMPLOYER THAT THEY
WISHED TO MODIFY THE CONTRACT DUE TO EXPIRE ON AUGUST 1.  AT THE FIRST
BARGAINING MEETING ON JUNE 6, 1961, THE EMPLOYER SPOKESMAN MAINTAINED
THAT COMPETITIVE CONDITIONS PREVENTED ANY INCREASE IN WAGES OR
BENEFITS.  THE UNIONS TOOK AN OPPOSITE VIEW AND ASKED FOR A SUBSTANTIAL
INCREASE IN PENSION AND OTHER BENEFITS.  THE PARTIES MET ON NUMEROUS
OCCASIONS THROUGHOUT JUNE AND JULY.  AS THE NEGOTIATIONS PROGRESSED,
THE EMPLOYER RECEDED FROM ITS ORIGINAL POSITION AND OFFERED IMPROVED
WAGES AND BENEFITS; THE UNIONS RECEDED FROM SOME OF THEIR DEMANDS, BUT
A MEETING OF THE MINDS WAS NOT REACHED.  ON JULY 20 AND SUBSEQUENTLY,
WITH THE AUGUST 1 EXPIRATION DATE APPROACHING, THE UNIONS PROPOSED A
SIX-MONTH EXTENSION OF THE CURRENT CONTRACT.  THIS WOULD HAVE GIVEN THE
UNIONS AN EXPIRATION DATE AT A TIME MOST ADVANTAGEOUS TO THEM; THE
EMPLOYER REJECTED THIS PROPOSAL ON THE GROUNDS THAT THE CONTRACT WOULD
THEN EXPIRE ON FEBRUARY 1, 1962, THE VERY HEIGHT OF ITS BUSY SEASON,
AND THAT NO CUSTOMER WOULD RISK ITS SHIPS BY PUTTING THEM IN THE
COMPANY'S YARDS KNOWING THAT THE LABOR CONTRACT WAS ABOUT TO EXPIRE. 
ON JULY 28 THE UNIONS' NEGOTIATOR INFORMED THE EMPLOYER THAT THE UNION
MEMBERS HAD VOTED "OVERWHELMINGLY TO TAKE A STRIKE IF NECESSARY."  ON
JULY 31 THE EMPLOYER MADE A NEW AND INCREASED OFFER ON WAGES AND
BENEFITS, ASKED THAT ITS PROPOSALS BE SUBMITTED TO THE EMPLOYEES FOR A
VOTE AND OFFERED TO EXTEND THE CONTRACT FOR THE LIMITED PERIOD
SUFFICIENT TO ENABLE THIS VOTE TO BE TAKEN.  THE UNIONS IN TURN ASKED
THAT THE LABOR AGREEMENT BE EXTENDED INDEFINITELY UNTIL A NEW AGREEMENT
WAS REACHED.  THE EMPLOYER REFUSED TO AGREE TO AN INDEFINITE EXTENSION
OF ITS PRESENT CONTRACT ON THE GROUND THAT IT COULD THEN BE STRUCK AT
ANY TIME OF THE UNIONS' CHOOSING.  (FN1) 

ALTHOUGH THE CONTRACT EXPIRED ON AUGUST 1, THE UNIONS DID NOT CALL A
STRIKE ON THAT DATE BUT CONTINUED TO WORK ON A DAY-TO-DAY BASIS AND
SUBMITTED THE EMPLOYER'S REVISED OFFER TO A VOTE OF THE MEMBERSHIP.  ON
AUGUST 8 THE UNIONS INFORMED THE EMPLOYER THAT ITS PROPOSALS HAD BEEN
"OVERWHELMINGLY" REJECTED BY THE EMPLOYEES.  ON AUGUST 9 THE EMPLOYER
MADE A NEW PACKAGE OFFER ON MANY ISSUES.  THE UNION NEGOTIATORS
REJECTED THIS NEW OFFER, REFUSED TO TAKE IT TO THE EMPLOYEES FOR A
VOTE, AND MADE NO COUNTEROFFER.  NEGOTIATIONS WERE BROKEN OFF WITHOUT
ANY DEFINITE PLANS FOR FURTHER MEETINGS BETWEEN THE PARTIES.  FUTURE
MEETINGS WERE LEFT TO THE CALL OF A FEDERAL MEDIATOR. 

FACED WITH THE SITAUTION OF AN EXPIRED CONTRACT AND THE UNIONS FREE
TO STRIKE AT ANY TIME, IN PARTICULAR AT A TIME OF THEIR OWN CHOOSING
DURING THE BUSY SEASON, OR WHENEVER THE YARD WAS FILLED WITH SHIPS, THE
EMPLOYER DECIDED TO SHUT DOWN THE CHICAGO YARD COMPLETELY AND LAY OFF
ALL BUT TWO EMPLOYEES AT TOLEDO.  NOTICES WERE ISSUED TO EMPLOYEES AT
CHICAGO, TOLEDO, AND TO SOME IN BUFFALO, WHICH STATED, "BECAUSE OF THE
LABOR DISPUTE WHICH HAS BEEN UNRESOLVED SINCE AUGUST 1, 1961, YOU ARE
LAID OFF UNTIL FURTHER NOTICE."  NEGOTIATIONS WERE RESUMED AFTER THIS
LOCKOUT AND CONTINUED UNTIL AGREEMENT WAS REACHED ON OCTOBER 27.  THE
LAID OFF EMPLOYEES WERE THEN RECALLED TO WORK.  SINCE THEN THE PARTIES
HAVE ENGAGED IN OTHER NEGOTIATIONS AND HAVE AGREED UPON CONTRACTS
WITHOUT EITHER STRIKE OR LOCKOUT. 

ON THIS RECORD THE TRIAL EXAMINER HELD THAT THE EMPLOYER REASONABLY
FEARED THAT THE UNIONS WOULD STRIKE WHEN THE TIME WAS RIPE.  HE FOUND
THAT THE EMPLOYER REASONABLY BELIEVED THAT: 

"THE UNIONS' STRATEGY WAS: 

"KEEP WORKING AT LORAIN, KEEP THE NONPRODUCTIVE MEN ON THE PAYROLL AS
LONG AS POSSIBLE AT THE OTHER YARDS UNTIL ONE OF TWO THINGS OCCURRED:
(A) A SHIPOWNER WOULD SEND A SHIP INTO ONE OF THE YARDS, AND THEN BY
STRIKING, THE RESPONDENT WOULD BE FORCED TO HIS KNEES IN EFFECTING A
LABOR SETTLEMENT SATISFACTORY TO THE UNION, AND IF THIS DIDN'T OCCUR,
THEN, (B) CONTINUE TO BARGAIN, INTO THE WINTER MONTHS, AND THEN EXECUTE
AN AGREEMENT EFFECTIVE IN NOVEMBER, DECEMBER, JANUARY, OR FEBRUARY, AND
IN THIS WAY, WHEN THE AGREEMENT WAS REOPENED, RESPONDENT WOULD BE SURE
TO HAVE SHIPS IN ITS DOCKS, AND A STRIKE AT SUCH A TIME WOULD BRING THE
RESPONDENT TO HIS KNEES IN EFFECTING AN AGREEMENT."  142 N.L.R.B., AT
1381. 

ACCORDINGLY THE TRIAL EXAMINER HELD THAT NO UNFAIR LABOR PRACTICE WAS
COMMITTED.  THIS HOLDING FOLLOWED SETTLED BOARD DOCTRINE THAT "LOCKOUTS
ARE PERMISSIBLE TO SAFEGUARD AGAINST UNUSUAL OPERATIONAL PROBLEMS OR
HAZARDS OR ECONOMIC LOSS WHERE THERE IS REASONABLE GROUND FOR BELIEVING
THAT A STRIKE IS  ...  THREATENED OR IMMINENT."  QUAKER STATE OIL
REFINING CORP., SUPRA, AT 337. 

THE BOARD OVERTURNED THE TRIAL EXAMINER'S ULTIMATE HOLDING, REACHING
WHAT, ON THIS RECORD, IS A TOTALLY UNSUPPORTABLE CONCLUSION - THAT THE
EMPLOYER'S FEAR OF A STRIKE WAS UNREASONABLE.  THE BOARD RESTED ITS
CONCLUSION UPON THE GROUNDS THAT "THE UNIONS MADE EVERY EFFORT TO
CONVEY TO THE RESPONDENT THEIR INTENTION NOT TO STRIKE; AND THEY ALSO
GAVE ASSURANCES THAT IF A STRIKE WERE CALLED, ANY WORK BROUGHT INTO
RESPONDENT'S YARD BEFORE THE STRIKE WOULD BE COMPLETED.  THE UNIONS
FURTHER OFFERED TO EXTEND THE EXISTING CONTRACT (WHICH CONTAINED A NO
STRIKE PROVISION) FOR 6 MONTHS, OR INDEFINITELY, UNTIL CONTRACT TERMS
WERE REACHED  ...  ."  142 N.L.R.B., AT 1364.  UPON ANALYSIS IT IS
CLEAR THAT NONE OF THESE GROUNDS WILL SUPPORT THE BOARD'S CONCLUSION
THAT THE EMPLOYER HAD NO REASONABLE BASIS TO FEAR A STRIKE. 

THE BOARD'S FINDING THAT "THE UNIONS MADE EVERY EFFORT TO CONVEY TO
THE RESPONDENT THEIR INTENTION NOT TO STRIKE" IS BASED UPON STATEMENTS
MADE BY UNION NEGOTIATORS DURING THE COURSE OF THE NEGOTIATIONS.  THE
CHIEF NEGOTIATOR FOR THE UNIONS TESTIFIED THAT ON THE FIRST DAY OF
NEGOTIATIONS, "I STATED THAT IT WAS MY UNDERSTANDING THAT IN THE PAST
THERE SEEMED TO HAVE BEEN A STRIKE AT EVERY - DURING EVERY NEGOTIATION
SINCE WORLD WAR II FROM INFORMATION I HAD RECEIVED, AND IT WAS OUR
SINCERE HOPE THAT WE COULD NEGOTIATE THIS AGREEMENT - GO THROUGH THOSE
NEGOTIATIONS AND NEGOTIATE A NEW AGREEMENT WITHOUT ANY STRIFE, THAT
PERSONALLY I ALWAYS HAD A STRONG DISLIKE TO STRIKE AND THAT I THOUGHT
IF TWO PARTIES SINCERELY DESIRED TO REACH AN AGREEMENT, ONE COULD BE
REACHED WITHOUT STRIKE.   THE COMPANY  ...  STATED THAT THE COMPANY
CONCURRED IN THOSE THOUGHTS, THAT THEY TOO DISLIKED STRIKES, AND IT WAS
THEIR HOPE, ALSO, THAT AN AGREEMENT COULD BE REACHED AMICABLY."  (FN2)
THE NEGOTIATORS FOR THE UNIONS EXPRESSED THIS SAME SENTIMENT ON SEVERAL
OTHER OCCASIONS DURING THE NEGOTIATIONS. 

THESE STATEMENTS, WHICH ONE WOULD NORMALLY EXPECT A UNION AGENT TO
MAKE DURING THE COURSE OF NEGOTIATIONS AS A HOPEFUL AUGURY OF THEIR
OUTCOME RATHER THAN AS A BINDING AGREEMENT NOT TO STRIKE, SCARCELY
VITIATE THE REASONABLENESS OF THE EMPLOYER'S FEAR OF A STRIKE IN LIGHT
OF THE LONG HISTORY OF PAST STRIKES BY THE SAME UNIONS.  FURTHER, THEY
CANNOT BE DEEMED TO RENDER THE EMPLOYER'S FEAR OF A STRIKE UNREASONABLE
AFTER THE NEGOTIATIONS HAD REACHED AN IMPASSE, PARTICULARLY IN VIEW OF
THE FACT THAT A STRIKE VOTE HAD BEEN TAKEN BY THE UNIONS' MEMBERSHIP,
AND THE MEMBERSHIP RATHER THAN THE UNION REPRESENTATIVES HAD FINAL
AUTHORITY TO DETERMINE WHETHER A STRIKE WOULD TAKE PLACE. 

THE FACT THAT THE ASSISTANT BUSINESS MANAGERS OF LOCAL 85 AND LOCAL
374 OF THE BOILERMAKERS UNION "GAVE ASSURANCES THAT IF A STRIKE WERE
CALLED, ANY WORK BROUGHT INTO RESPONDENT'S YARD BEFORE THE STRIKE WOULD
BE COMPLETED" (FN3) LIKEWISE CANNOT BE DEEMED TO OFFSET THE UNIONS'
THREAT OF A STRIKE AND ITS CONSEQUENCES.  THESE MEN WERE OFFICIALS OF
LOCALS IN ONLY ONE OF THE EIGHT SEPARATE UNIONS INVOLVED.  AT MOST THEY
COULD GIVE ASSURANCES AS TO A FEW OF THE MEN AT TWO OF THE COMPANY'S
FOUR YARDS.  AND EVEN HAD ALL OF THE UNIONS JOINED IN THESE STATEMENTS,
WHICH WAS NOT THE CASE, THE EMPLOYER HAD BEEN SUBJECT TO WILDCAT
STRIKES AT A TIME WHEN THE UNIONS WERE BOUND BY A NO-STRIKE CLAUSE IN
THEIR CONTRACT.  THEREFORE, WITHOUT IMPUGNING THE GOOD FAITH OF THESE
UNION AGENTS, IT SURELY WAS NOT UNREASONABLE FOR THE EMPLOYER,
NOTWITHSTANDING THIS ASSURANCE, TO FEAR THAT ITS EMPLOYEES MIGHT NOT
COMPLETE WORK ON SHIPS WHEN THEY WERE NOT BOUND BY A NO-STRIKE CLAUSE. 

THE BOARD ALSO RELIES ON THE FACT THAT THE UNIONS OFFERED A SIX-MONTH
EXTENSION OF THE PRESENT CONTRACT.  AS I HAVE ALREADY POINTED OUT, THIS
WOULD HAVE CAUSED THE CONTRACT TO EXPIRE DURING THE EMPLOYER'S BUSIEST
SEASON.  THE EMPLOYER HAD A PERFECT RIGHT TO REJECT THIS STRATAGEM. 
HAD IT AGREED, THE UNIONS WOULD HAVE ACHIEVED ONE OF THEIR IMPORTANT
OBJECTIVES WITHOUT THE NECESSITY OF STRIKING.  BY THE SAME TOKEN IT IS
CLEAR THAT THE UNIONS WOULD HAVE AGREED NOT TO STRIKE HAD THE EMPLOYER
ACCEPTED THEIR PROPOSALS FOR INCREASES IN WAGES AND BENEFITS.  SURELY
THE EMPLOYER HAD EVERY RIGHT TO REJECT THESE PROPOSALS, AND ITS
REJECTION OF THEM WOULD NOT SHOW THAT IT WAS UNREASONABLE IN FEARING A
STRIKE BASED UPON ITS FAILURE TO ACCEDE TO THE UNION'S DEMANDS. 

FINALLY, THE OFFER OF AN INDEFINITE EXTENSION OF THE CONTRACT IS AN
EQUALLY UNSUPPORTABLE BASIS FOR THE BOARD'S CONCLUSION.  AN INDEFINITE
EXTENSION PRESUMABLY WOULD MEAN UNDER TRADITIONAL CONTRACT THEORY THAT
THE UNIONS COULD STRIKE AT ANY TIME OR AFTER GIVING BRIEF NOTICE. 
(FN4) SURELY THE EMPLOYER WOULD BE REASONABLE IN FEARING THAT SUCH AN
ARRANGEMENT WOULD PECULIARLY PLACE THE TIMING OF THE STRIKE IN THE
UNIONS' HANDS. 

THE SUM OF ALL THIS IS THAT THE RECORD DOES NOT SUPPLY EVEN A
SCINTILLA OF, LET ALONE ANY SUBSTANTIAL, EVIDENCE TO SUPPORT THE
CONCLUSION OF THE BOARD THAT THE EMPLOYER'S FEAR OF A STRIKE WAS
UNREASONABLE, BUT, RATHER, THIS CONCLUSION APPEARS IRRATIONAL.  CF.
LABOR BOARD V. ERIE RESISTOR CORP., 373 U.S. 221, AT 236.  I WOULD
THEREFORE HOLD ON THIS RECORD THAT THE EMPLOYER'S LOCKOUT WAS
COMPLETELY JUSTIFIED. 

THE FACT THAT THE BOARD HELD ON THE UNDISPUTED FACTS THAT THE
EMPLOYER'S FEAR OF A STRIKE WAS UNREASONABLE AND THAT THE COURT OF
APPEALS HAS AFFIRMED THE BOARD DOES NOT PRECLUDE US FROM REVIEWING THIS
DETERMINATION.  SEE PUBLIC SERVICE COMM'N V. UNITED STATES, 356 U.S.
421.  THE STANDARD THAT SHOULD HAVE BEEN APPLIED BY THE COURT OF
APPEALS WAS WHETHER THE BOARD'S FINDING WAS SUPPORTED BY SUBSTANTIAL
EVIDENCE WHEN THE RECORD WAS VIEWED AS A WHOLE.  UNIVERSAL CAMERA CORP.
V. LABOR BOARD, 340 U.S. 474.  SEE BURLINGTON TRUCK LINES, INC. V.
UNITED STATES, 371 U.S. 156, 168; INTERSTATE COMMERCE COMM'N V. J-T
TRANSPORT CO., 368 U.S. 81, 93.  "THE BOARD'S FINDINGS ARE ENTITLED TO
RESPECT; BUT THEY MUST NONETHELESS BE SET ASIDE WHEN THE RECORD BEFORE
A COURT OF APPEALS CLEARLY PRECLUDES THE BOARD'S DECISION FROM BEING
JUSTIFIED BY A FAIR ESTIMATE OF THE WORTH OF THE TESTIMONY OF WITNESSES
OR ITS INFORMED JUDGMENT ON MATTERS WITHIN ITS SPECIAL COMPETENCE OR
BOTH."  UNIVERSAL CAMERA CORP. V. LABOR BOARD, SUPRA, AT 490.  INDEED,
THE BOARD HERE SET ASIDE THE REPORT OF ITS TRIAL EXAMINER, AND IN
UNIVERSAL CAMERA THIS COURT RECOGNIZED "THAT EVIDENCE SUPPORTING A
CONCLUSION MAY BE LESS SUBSTANTIAL WHEN AN IMPARTIAL, EXPERIENCED
EXAMINER WHO HAS OBSERVED THE WITNESSES AND LIVED WITH THE CASE HAS
DRAWN CONCLUSIONS DIFFERENT FROM THE BOARD'S THAN WHEN HE HAS REACHED
THE SAME CONCLUSION."  340 U.S., AT 496.  THE COURT OF APPEALS IN MY
VIEW IN ITS SUMMARY AFFIRMANCE ON THIS ISSUE GROSSLY MISAPPLIED THE
STANDARDS LAID DOWN BY UNIVERSAL CAMERA.  THIS CASE IS PROPERLY BEFORE
US ON A SUBSTANTIAL LEGAL QUESTION, WHICH NECESSARILY INVOLVES A REVIEW
OF THE ENTIRE RECORD.  IN MAKING SUCH A REVIEW, ALTHOUGH WE GIVE PROPER
WEIGHT TO WHAT THE FIRST REVIEWING COURT DECIDES, WE CANNOT IGNORE OUR
DUTY TO APPLY THE STATUTORY STANDARD THAT THE BOARD'S FINDINGS MUST BE
SUPPORTED BY SUBSTANTIAL EVIDENCE.  SINCE THE BOARD'S HOLDING WAS NOT
SO SUPPORTED, BUT, ON THE CONTRARY, AS THE PLAIN FACTS OF THE RECORD
REVEAL, WAS IRRATIONAL, I WOULD REVERSE THE COURT OF APPEALS ON THIS
GROUND.    MY VIEW OF THIS CASE WOULD MAKE IT UNNECESSARY TO DEAL WITH
THE BROAD QUESTION OF WHETHER AN EMPLOYER MAY LOCK OUT HIS EMPLOYEES
SOLELY TO BRING ECONOMIC PRESSURE TO BEAR IN SUPPORT OF HIS BARGAINING
POSITION.  THE QUESTION OF WHICH TYPES OF LOCKOUT ARE COMPATIBLE WITH
THE LABOR STATUTE IS A COMPLEX ONE AS THIS DECISION AND THE OTHER CASES
DECIDED TODAY ILLUSTRATE.  SEE TEXTILE WORKERS UNION V. DARLINGTON MFG.
CO., ANTE, P. 263; LABOR BOARD V. BROWN, ANTE, P. 278.  THIS COURT HAS
SAID THAT THE PROBLEM OF THE LEGALITY OF CERTAIN TYPES OF STRIKE
ACTIVITY MUST BE "REVEALED BY UNFOLDING VARIANT SITUATIONS" AND
REQUIRES "AN EVOLUTIONARY PROCESS FOR ITS RATIONAL RESPONSE, NOT A
QUICK, DEFINITIVE FORMULA AS A COMPREHENSIVE ANSWER."  ELECTRICAL
WORKERS V. LABOR BOARD, 366 U.S. 667, 674; SEE ALSO LABOR BOARD V.
STEELWORKERS, SUPRA, 362-363.  THE SAME IS TRUE OF LOCKOUTS. 

THE TYPES OF SITUATION IN WHICH AN EMPLOYER MIGHT SEEK TO LOCK OUT
HIS EMPLOYEES DIFFER CONSIDERABLY ONE FROM THE OTHER.  THIS CASE
PRESENTS THE SITUATION OF AN EMPLOYER WITH A LONG HISTORY OF UNION
RECOGNITION AND COLLECTIVE BARGAINING, CONFRONTED WITH A HISTORY OF
PAST STRIKES, WHICH LOCKS OUT ONLY AFTER CONSIDERABLE GOOD-FAITH
NEGOTIATION INVOLVING AGREEMENT AND COMPROMISE ON NUMEROUS ISSUES,
AFTER A BARGAINING IMPASSE HAS BEEN REACHED, MORE THAN A WEEK AFTER THE
PRIOR CONTRACT HAS EXPIRED, AND WHEN FACED WITH THE THREAT OF A STRIKE
AT A TIME WHEN IT AND THE PROPERTY OF ITS CUSTOMERS CAN SUFFER UNUSUAL
HARM.  OTHER CASES IN WHICH THE BOARD HAS HELD A LOCKOUT ILLEGAL HAVE
PRESENTED FAR DIFFERENT SITUATIONS.  FOR EXAMPLE, IN QUAKER STATE OIL
REFINING CORP., SUPRA, AN EMPLOYER LOCKED OUT ITS EMPLOYEES THE DAY
AFTER ITS CONTRACT WITH THE UNION EXPIRED ALTHOUGH NO IMPASSE HAD BEEN
REACHED IN THE BARGAINING STILL IN PROGRESS, NO STRIKE HAD BEEN
THREATENED BY THE UNIONS, WHICH HAD NEVER CALLED A SUDDEN STRIKE DURING
THE 13 YEARS THEY HAD BARGAINED WITH THE EMPLOYER, AND THE UNIONS HAD
OFFERED TO RESUBMIT THE EMPLOYER'S PROPOSALS TO ITS EMPLOYEES FOR A
VOTE.  SEE ALSO UTAH PLUMBING & HEATING CONTRACTORS ASSN., 126 N.L.R.B.
973.  THESE DECISIONS OF THE LABOR BOARD PROPERLY TAKE INTO ACCOUNT, IN
DETERMINING THE LEGALITY OF LOCKOUTS UNDER THE LABOR STATUTES, SUCH
FACTORS AS THE LENGTH, CHARACTER, AND HISTORY OF THE COLLECTIVE
BARGAINING RELATION BETWEEN THE UNION AND THE EMPLOYER, AS WELL AS
WHETHER A BARGAINING IMPASSE HAS BEEN REACHED.  INDEED, THE COURT
ITSELF SEEMS TO RECOGNIZE THAT THERE IS A DIFFERENCE BETWEEN LOCKING
OUT BEFORE A BARGAINING IMPASSE HAS BEEN REACHED AND LOCKING OUT AFTER
COLLECTIVE BARGAINING HAS BEEN EXHAUSTED, FOR IT LIMITS ITS HOLDING TO
LOCKOUTS IN THE LATTER TYPE OF SITUATION WITHOUT DECIDING THE QUESTION
OF THE LEGALITY OF LOCKING OUT BEFORE BARGAINING IS EXHAUSTED.  SINCE
THE EXAMPLES OF DIFFERENT LOCKOUT SITUATIONS COULD BE MULTIPLIED, THE
LOGIC OF THE COURT'S LIMITATION OF ITS HOLDING SHOULD LEAD IT TO
RECOGNIZE THAT THE PROBLEM OF LOCKOUTS REQUIRES "AN EVOLUTIONARY
PROCESS," NOT "A QUICK, DEFINITIVE FORMULA," FOR ITS ANSWER. 

THE COURT SHOULD BE CHARY OF SWEEPING GENERALIZATIONS IN THIS COMPLEX
AREA.  WHEN WE DEAL WITH THE LOCKOUT AND THE STRIKE, WE ARE DEALING
WITH WEAPONS OF INDUSTRIAL WARFARE.  WHILE THE PARTIES GENERALLY HAVE
THEIR CHOICE OF ECONOMIC WEAPONS, SEE LABOR BOARD V. INSURANCE AGENTS,
361 U.S. 477, THIS CHOICE, WITH RESPECT TO BOTH THE STRIKE AND THE
LOCKOUT, IS NOT UNRESTRICTED.  WHILE WE HAVE RECOGNIZED "THE DEFERENCE
PAID THE STRIKE WEAPON BY THE FEDERAL LABOR LAWS," LABOR BOARD V. ERIE
RESISTOR, SUPRA, AT 235, NOT ALL FORMS OF ECONOMICALLY MOTIVATED
STRIKES ARE PROTECTED OR EVEN PERMISSIBLE UNDER THE LABOR STATUTES
(FN5) OR THE PRIOR DECISIONS OF THIS COURT.  (FN6)  MOREOVER, A LOCKOUT
PROMPTED BY AN ANTIUNION MOTIVE IS PLAINLY ILLEGAL UNDER THE NATIONAL
LABOR RELATIONS ACT, (FN7) THOUGH NO SIMILAR RESTRICTIONS AS TO MOTIVE
OPERATE TO LIMIT THE LEGALITY OF A STRIKE.  SEE LABOR BOARD V. SOMERSET
SHOE CO., 111 F.2D 681; LABOR BOARD V. STREMEL, 141 F.2D 317; LABOR
BOARD V. SOMERSET CLASSICS, INC., 193 F.2D 613.  THE VARIETIES OF
RESTRICTIONS IMPOSED UPON STRIKES AND LOCKOUTS REFLECT THE COMPLEXITIES
PRESENTED BY VARIANT FACTUAL SITUATIONS. 

THE COURT NOT ONLY OVERLOOKS THE FACTUAL DIVERSITY AMONG DIFFERENT
TYPES OF LOCKOUT, BUT ITS STATEMENT OF THE RULES GOVERNING UNFAIR LABOR
PRACTICES UNDER SECS. 8(A)(1) AND (3) DOES NOT GIVE PROPER RECOGNITION
TO THE FACT THAT "THE ULTIMATE PROBLEM IN THIS AREA IS THE BALANCING OF
THE CONFLICTING LEGITIMATE INTERESTS."  LABOR BOARD V. TRUCK DRIVERS
UNION, 353 U.S. 87, 96.  THE COURT STATES THAT EMPLOYER CONDUCT, NOT
ACTUALLY MOTIVATED BY ANTIUNION BIAS, (FN8) DOES NOT VIOLATE SEC.
8(A)(1) OR SEC. 8(A)(3) UNLESS IT IS "DEMONSTRABLY SO DESTRUCTIVE OF
COLLECTIVE BARGAINING," ANTE, AT 309, OR "SO PREJUDICIAL TO UNION
INTERESTS AND SO DEVOID OF SIGNIFICANT ECONOMIC JUSTIFICATION," ANTE,
AT 311, THAT NO ANTIUNION ANIMUS NEED BE SHOWN.  THIS RULE DEPARTS
SUBSTANTIALLY FROM BOTH THE LETTER AND THE SPIRIT OF NUMEROUS PRIOR
DECISIONS OF THE COURT.  SEE, E.G., LABOR BOARD V. TRUCK DRIVERS UNION,
SUPRA, AT 96; REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793;
LABOR BOARD V. BABCOCK & WILCOX CO., 351 U.S. 105; LABOR BOARD V.
BURNUP & SIMS, INC., 379 U.S. 21. 

THESE DECISIONS DEMONSTRATE THAT THE CORRECT TEST FOR DETERMINING
WHETHER SEC. 8(A)(1) HAS BEEN VIOLATED IN CASES NOT INVOLVING AN
EMPLOYER ANTIUNION MOTIVE IS WHETHER THE BUSINESS JUSTIFICATION FOR THE
EMPLOYER'S ACTION OUTWEIGHS THE INTERFERENCE WITH SEC. 7 RIGHTS
INVOLVED.  IN REPUBLIC AVIATION CORP. V. LABOR BOARD, SUPRA, FOR
EXAMPLE, THE COURT AFFIRMED A BOARD HOLDING THAT A COMPANY "NO
SOLICITATION" RULE WAS INVALID AS APPLIED TO PREVENT SOLICITATION OF
EMPLOYEES ON COMPANY PROPERTY DURING PERIODS WHEN EMPLOYEES WERE FREE
TO DO AS THEY PLEASED, NOT BECAUSE SUCH A RULE WAS "DEMONSTRABLY  ...
DESTRUCTIVE OF COLLECTIVE BARGAINING," BUT SIMPLY BECAUSE THERE WAS NO
SIGNIFICANT EMPLOYER JUSTIFICATION FOR THE RULE AND THERE WAS A SHOWING
OF UNION INTEREST, THOUGH FAR SHORT OF A NECESSITY, IN ITS ABOLITION. 
SEE ALSO, LABOR BOARD V. BURNUP & SIMS, INC., SUPRA. 

A SIMILAR TEST IS APPLICABLE IN SEC. 8(A)(3) CASES WHERE NO ANTIUNION
MOTIVE IS SHOWN.  THE COURT MISREADS RADIO OFFICERS V. LABOR BOARD, 347
U.S. 17, AND LABOR BOARD V. ERIE RESISTOR CORP., SUPRA, IN STATING THAT
THE TEST IN SUCH CASES UNDER SEC. 8(A)(3) IS WHETHER PRACTICES "ARE
INHERENTLY SO PREJUDICIAL TO UNION INTERESTS AND SO DEVOID OF
SIGNIFICANT ECONOMIC JUSTIFICATION THAT NO SPECIFIC EVIDENCE OF INTENT
TO DISCOURAGE UNION MEMBERSHIP OR OTHER ANTIUNION ANIMUS IS REQUIRED." 
ANTE, AT 311.  RADIO OFFICERS DID NOT RESTRICT THE APPLICATION OF SEC.
8(A)(3) IN CASES DEVOID OF ANTIUNION MOTIVE TO THE EXTREME SITUATIONS
ENCOMPASSED BY THE COURT'S TEST.  RATHER, IN HOLDING APPLICABLE THE
COMMON-LAW RULE THAT A MAN IS PRESUMED TO INTEND THE FORESEEABLE
CONSEQUENCES OF HIS OWN ACTIONS, THE COURT EXTENDED THE REACH OF SEC.
8(A)(3) TO ALL CASES IN WHICH A SIGNIFICANT ANTIUNION EFFECT IS
FORESEEABLE REGARDLESS OF THE EMPLOYER'S MOTIVE.  IN SUCH CASES THE
COURT, IN ERIE RESISTOR CORP., HELD THAT CONDUCT MIGHT BE DETERMINED BY
THE BOARD TO VIOLATE SEC. 8(A)(3) WHERE THE BOARD'S DETERMINATION
RESULTED FROM A REASONABLE "WEIGHING OF THE INTERESTS OF EMPLOYEES IN
CONCERTED ACTIVITY AGAINST THE INTEREST OF THE EMPLOYER IN OPERATING
HIS BUSINESS IN A PARTICULAR MANNER AND ...  FROM BALANCING IN THE
LIGHT OF THE ACT AND ITS POLICY THE INTENDED CONSEQUENCES UPON EMPLOYEE
RIGHTS AGAINST THE BUSINESS ENDS TO BE SERVED BY THE EMPLOYER'S
CONDUCT."  373 U.S., AT 229. 

THESE CASES SHOW THAT THE TESTS AS TO WHETHER AN EMPLOYER'S CONDUCT
VIOLATES SEC. 8(A)(1) OR VIOLATES SEC. 8(A)(3) WITHOUT A SHOWING OF
ANTIUNION MOTIVE COME DOWN TO SUBSTANTIALLY THE SAME THING:  WHETHER
THE LEGITIMATE ECONOMIC INTERESTS OF THE EMPLOYER JUSTIFY HIS
INTERFERENCE WITH THE RIGHTS OF HIS EMPLOYEES - A TEST INVOLVING "THE
BALANCING OF THE CONFLICTING LEGITIMATE INTERESTS."  LABOR BOARD V.
TRUCK DRIVERS UNION, SUPRA, AT 96.  AS THE PRIOR DECISIONS OF THIS
COURT HAVE HELD, "THE FUNCTION OF STRIKING  ...  SUCH A BALANCE  ...
OFTEN A DIFFICULT AND DELICATE RESPONSIBILITY, ...  CONGRESS COMMITTED
PRIMARILY TO THE NATIONAL LABOR RELATIONS BOARD, SUBJECT TO LIMITED
JUDICIAL REVIEW."  IBID. 

THIS, OF COURSE, DOES NOT MEAN THAT REVIEWING COURTS ARE TO ABDICATE
THEIR FUNCTION OF DETERMINING WHETHER, GIVING DUE DEFERENCE TO THE
BOARD, THE BOARD HAS STRUCK THE BALANCE CONSISTENTLY WITH THE LANGUAGE
AND POLICY OF THE ACT.  SEE LABOR BOARD V. BROWN, SUPRA; LABOR BOARD V.
TRUCK DRIVERS UNION, SUPRA.  NOR DOES IT MEAN THAT REVIEWING COURTS ARE
TO RUBBER-STAMP DECISIONS OF THE BOARD WHERE THE APPLICATION OF
PRINCIPLES IN A PARTICULAR CASE IS IRRATIONAL OR NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE.  APPLYING THESE
PRINCIPLES TO THE FACTUAL SITUATION HERE PRESENTED, I WOULD ACCEPT THE
BOARD'S CAREFULLY LIMITED RULE, FASHIONED BY THE BOARD AFTER WEIGHING
THE "CONFLICTING LEGITIMATE INTERESTS" OF EMPLOYERS AND UNIONS, THAT A
LOCKOUT DOES NOT VIOLATE THE ACT WHERE USED TO "SAFEGUARD AGAINST
UNUSUAL OPERATIONAL PROBLEMS OR HAZARDS OR ECONOMIC LOSS WHERE THERE IS
REASONABLE GROUND FOR BELIEVING THAT A STRIKE IS  ...  THREATENED OR
IMMINENT."  QUAKER STATE OIL REFINING CORP., SUPRA, AT 337.  THIS RULE
IS CONSISTENT WITH THE POLICIES OF THE ACT AND BASED UPON THE
ACTUALITIES OF INDUSTRIAL RELATIONS.  I WOULD, HOWEVER, REJECT THE
DETERMINATION OF THE BOARD REFUSING TO APPLY THIS RULE TO THIS CASE,
FOR THE UNDISPUTED FACTS REVEALED BY THE RECORD BRING THIS CASE CLEARLY
WITHIN THE RULE. 

IN VIEW OF THE NECESSITY FOR, AND THE DESIRABILITY OF, WEIGHING THE
LEGITIMATE CONFLICTING INTERESTS IN VARIANT LOCKOUT SITUATIONS, THERE
IS NOT AND CANNOT BE ANY SIMPLE FORMULA WHICH READILY DEMARKS THE
PERMISSIBLE FROM THE IMPERMISSIBLE LOCKOUT.  THIS BEING SO, I WOULD NOT
REACH OUT IN THIS CASE TO ANNOUNCE PRINCIPLES WHICH ARE DETERMINATIVE
OF THE LEGALITY OF ALL ECONOMICALLY MOTIVATED LOCKOUTS WHETHER BEFORE
OR AFTER A BARGAINING IMPASSE HAS BEEN REACHED.  IN MY VIEW BOTH THE
COURT AND THE BOARD, IN REACHING THEIR OPPOSITE CONCLUSIONS, HAVE
INADVISABLY AND UNNECESSARILY DONE SO HERE.  RATHER, I WOULD CONFINE
OUR DECISION TO THE SIMPLE HOLDING, SUPPORTED BY BOTH THE RECORD AND
THE ACTUALITIES OF INDUSTRIAL RELATIONS, THAT THE EMPLOYER'S FEAR OF A
STRIKE WAS REASONABLE, AND THEREFORE, UNDER THE SETTLED DECISIONS OF
THE BOARD, WHICH I WOULD APPROVE, THE LOCKOUT OF ITS EMPLOYEES WAS
JUSTIFIED. 

FN1  SEE NOTE 4, INFRA. 

FN2  THIS SAME NEGOTIATOR ALSO TESTIFIED AS FOLLOWS: 

"Q.  DID YOU SAY THAT THE COMPANY WAS CRYING ABOUT NOT BEING ABLE TO
AFFORD A WAGE INCREASE AND YET DID YOU SAY THAT IN 1958 THE COMPANY
USED THE SAME ARGUMENT AND THAT A TEN OR A TWELVE WEEK STRIKE ENSUED AT
THE CONCLUSION OF WHICH AN EIGHT CENT AN HOUR INCREASE WAS GRANTED FOR
EACH OF THREE YEARS AND THAT THE COMPANY WAS STILL NOT OUT OF
BUSINESS? 

"A.  YES." 

FN3  THERE IS SOME EVIDENCE IN THE RECORD THAT ONE OTHER LOCAL
BUSINESS AGENT GAVE A SIMILAR ASSURANCE. 

FN4  SEE 1 WILLISTON, CONTRACTS SECS. 38, 39 (3D ED. 1957); CF.
PACIFIC COAST ASSOCIATION OF PULP & PAPER MANUFACTURERS, 121 N.L.R.B.
990, 993. 

FN5  SEE, E.G., THE SECONDARY BOYCOTT AND ORGANIZATIONAL PICKETING
RESTRICTIONS.  61 STAT.  141, 29 U.S.C. SEC. 158 (B)(4) (1958 ED.), 73
STAT. 542, 544, 29 U.S.C. SECS. 158(B)(4) AND (7) (1958 ED., SUPP. V). 

FN6  SEE AUTOMOBILE WORKERS V. WISCONSIN BOARD, 336 U.S. 245; LABOR
BOARD V. FANSTEEL METALLURGICAL CORP., 306 U.S. 240. 

FN7  SEE LABOR BOARD V. TRUCK DRIVERS UNION, SUPRA, AT 93; TEXTILE
WORKERS UNION V. DARLINGTON MFG. CO., ANTE, P. 263, AT 268-269. 

FN8  NATIONAL LABOR RELATIONS ACT SEC. 8(A)(3), 49 STAT. 452, AS
AMENDED, 29 U.S.C. SEC. 158(A)(3) PROVIDES THAT IT SHALL BE AN UNFAIR
LABOR PRACTICE "BY DISCRIMINATION  ...  TO ENCOURAGE OR DISCOURAGE
MEMBERSHIP IN ANY LABOR ORGANIZATION."  THE ONLY TYPE OF DISCRIMINATORY
MOTIVE WITH WHICH WE ARE HERE CONCERNED IS THAT WHICH DISCOURAGES
MEMBERSHIP IN A UNION. 
..END :



SANSONE V. UNITED STATES 380 U.S. 343 


NO. 365.  ARGUED MARCH 10, 1965.  - DECIDED MARCH 29, 1965.  - 334 F.2D
287, AFFIRMED. 


PETITIONER WAS INDICTED FOR WILLFULLY ATTEMPTING TO EVADE FEDERAL
INCOME TAXES IN VIOLATION OF 26 U.S.C. SEC. 7201.  AT THE END OF HIS
TRIAL HE REQUESTED THAT THE JURY BE INSTRUCTED THAT IT COULD ACQUIT HIM
OF THAT OFFENSE, A FELONY, BUT COULD CONVICT HIM OF THE LESSER-INCLUDED
MISDEMEANORS OF WILLFULLY FILING A FRAUDULENT OR FALSE RETURN IN
VIOLATION OF SEC. 7207, OR WILLFULLY FAILING TO PAY HIS TAXES WHEN DUE
IN VIOLATION OF SEC. 7203.  THE REQUEST WAS DENIED AND PETITIONER WAS
FOUND GUILTY.  THE COURT OF APPEALS UPHELD THE CONVICTION.  HELD: 

1.  SINCE SEC. 7207 APPLIES TO INCOME TAX VIOLATIONS, AS SECS. 7201
AND 7203 CLEARLY DO, WITH OBVIOUS OVERLAPPING AMONG THEM, THE LESSER
INCLUDED OFFENSE DOCTRINE WOULD BE APPLICABLE, IN AN APPROPRIATE CASE. 
PP. 347-349. 

2.  A LESSER-INCLUDED OFFENSE INSTRUCTION IS PROPER ONLY WHERE THE
CHARGED GREATER OFFENSE REQUIRES THAT THE JURY FIND A DISPUTED FACTUAL
ELEMENT WHICH IS NOT A REQUISITE FOR CONVICTION OF THE LESSER-INCLUDED
OFFENSE.  BERRA V. UNITED STATES, 351 U.S. 131, FOLLOWED.  PP. 349
350. 

3.  THERE WERE HERE NO DISPUTED ISSUES OF ACT WHICH WOULD JUSTIFY
INSTRUCTIONS TO THE JURY THAT IT COULD FIND THAT PETITIONER HAD
COMMITTED ALL THE ELEMENTS OF SECS. 7203 AND 7207 WITHOUT HAVING
VIOLATED SEC. 7201, AND SO PETITIONER WAS NOT ENTITLED TO LESSER
INCLUDED OFFENSE INSTRUCTIONS.  PP. 350-354. 

SANSONE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

PETITIONER SANSONE WAS INDICTED FOR WILLFULLY ATTEMPTING TO EVADE
FEDERAL INCOME TAXES FOR THE YEAR 1957 IN VIOLATION OF SEC. 7201 OF THE
INTERNAL REVENUE CODE OF 1954.  SECTION 7201 PROVIDES: 

"ANY PERSON WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR DEFEAT
ANY TAX IMPOSED BY THIS TITLE OR THE PAYMENT THEREOF SHALL, IN ADDITION
TO OTHER PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY AND, UPON
CONVICTION THEREOF, SHALL BE FINED NOT MORE THAN $10,000, OR IMPRISONED
NOT MORE THAN 5 YEARS, OR BOTH, TOGETHER WITH THE COSTS OF
PROSECUTION." 

THE FOLLOWING FACTS WERE ESTABLISHED AT TRIAL.  IN MARCH 1956
PETITIONER AND HIS WIFE PURCHASED A TRACT OF LAND FOR $22,500 AND
SIMULTANEOUSLY SOLD A PORTION OF THE TRACT FOR $20,000.  IN AUGUST 1957
PETITIONER SOLD ANOTHER PORTION OF THE TRACT FOR $27,000.  HE DID NOT
REPORT THE GAIN ON EITHER THE 1956 OR 1957 SALE IN HIS INCOME TAX
RETURNS FOR THOSE YEARS.  (FN1)  PETITIONER CONCEDED THAT THE 1957
TRANSACTION WAS REPORTABLE AND THAT, IN NOT REPORTING IT, HE
UNDERSTATED HIS TAX LIABILITY FOR THAT YEAR BY $2,456.48.  HE
CONTENDED, HOWEVER, THAT THIS UNDERSTATEMENT WAS NOT WILLFUL SINCE HE
BELIEVED AT THE TIME THAT EXTENSIVE REPAIRS ON A CREEK ADJOINING A
PORTION OF THE TRACT HE RETAINED MIGHT BE NECESSARY AND THAT THE COST
OF THESE REPAIRS MIGHT WIPE OUT HIS PROFIT ON THE 1957 SALE. 

TO COUNTER THIS DEFENSE, THE GOVERNMENT INTRODUCED THE FOLLOWING
SIGNED STATEMENT MADE BY PETITIONER DURING THE TREASURY INVESTIGATION
OF HIS TAX RETURN: 

"I DID NOT REPORT THE 1957 SALE IN OUR JOINT INCOME TAX RETURN FOR
1957 BECAUSE I WAS BURDENED WITH A NUMBER OF FINANCIAL OBLIGATIONS AND
DID NOT FEEL I COULD RAISE THE MONEY TO PAY ANY TAX DUE.  IT WAS MY
INTENTION TO REPORT ALL SALES IN A FUTURE YEAR AND PAY THE TAX DUE.  I
KNEW THAT I SHOULD HAVE REPORTED THE 1957 SALE, BUT MY WIFE DID NOT
KNOW THAT IT SHOULD HAVE BEEN REPORTED.  IT WAS NOT MY INTENTION TO
EVADE THE PAYMENT OF OUR PROPER TAXES AND I INTENDED TO PAY ANY
ADDITIONAL TAXES DUE WHEN I WAS FINANCIALLY ABLE TO DO SO." 

AT THE CONCLUSION OF THE TRIAL, PETITIONER REQUESTED THAT THE JURY BE
INSTRUCTED THAT IT COULD ACQUIT HIM OF THE CHARGED OFFENSE OF WILLFULLY
ATTEMPTING TO EVADE OR DEFEAT TAXES IN VIOLATION OF SEC. 7201, BUT
STILL CONVICT HIM OF EITHER OR BOTH OF THE ASSERTED LESSER-INCLUDED
OFFENSES OF WILLFULLY FILING A FRAUDULENT OR FALSE RETURN, IN VIOLATION
OF SEC. 7207, (FN2) OR WILLFULLY FAILING TO PAY HIS TAXES AT THE TIME
REQUIRED BY LAW, IN VIOLATION OF SEC. 7203.  (FN3)  SECTION 7201 IS A
FELONY PROVIDING FOR A MAXIMUM FINE OF $10,000 AND IMPRISONMENT FOR
FIVE YEARS.  BOTH SECS. 7203 AND 7207 ARE MISDEMEANORS WITH MAXIMUM
PRISON SENTENCES OF ONE YEAR UNDER EACH SECTION, AND MAXIMUM FINES OF
$10,000 UNDER SEC. 7203 AND $1,000 UNDER SEC. 7207. 

THE REQUESTED INSTRUCTIONS WERE DENIED.  (FN4)  PETITIONER WAS FOUND
GUILTY BY THE JURY OF VIOLATING SEC. 7201, AND WAS SENTENCED BY THE
COURT TO PAY A FINE OF $2,000 AND TO SERVE 15 MONTHS' IMPRISONMENT. 
THE CONVICTION WAS UPHELD BY THE COURT OF APPEALS.  334 F.2D 287.  WE
GRANTED CERTIORARI TO CONSIDER THE APPLICABILITY OF THE LESSER-INCLUDED
OFFENSE DOCTRINE TO THESE FEDERAL TAX STATUTES.  379 U.S. 886. 

                      I. 

WE ARE FACED WITH THE THRESHOLD QUESTION AS TO WHETHER OR NOT SEC.
7207, WHICH PROSCRIBES THE WILLFUL FILING WITH A TREASURY OFFICIAL OF
ANY KNOWN FALSE OR FRAUDULENT "RETURN," APPLIES TO THE FILING OF AN
INCOME TAX RETURN.  (FN5)  IF SEC. 7207 DOES NOT APPLY TO INCOME TAX
RETURNS, IT IS OBVIOUS THAT THE DEFENDANT WAS NOT HERE ENTITLED TO A
LESSER-INCLUDED OFFENSE CHARGE BASED ON THAT SECTION. 

THIS COURT HELD IN ACHILLI V. UNITED STATES, 353 U.S. 373, THAT SEC.
7207'S STATUTORY PREDECESSOR, SEC. 3616(A) OF THE INTERNAL REVENUE CODE
OF 1939, WHICH MADE IT A MISDEMEANOR FOR ANY PERSON TO DELIVER TO THE
COLLECTOR OF REVENUE "ANY FALSE OR FRAUDULENT LIST, RETURN, ACCOUNT, OR
STATEMENT, WITH INTENT TO DEFEAT OR EVADE THE VALUATION, ENUMERATION,
OR ASSESSMENT INTENDED TO BE MADE  ... ," DESPITE ITS BROAD LANGUAGE,
WAS NOT INTENDED BY CONGRESS TO APPLY TO INCOME TAX RETURNS. 

THERE WERE TWO MAJOR BASES OF THIS COURT'S CONCLUSION IN ACHILLI THAT
SEC. 3616(A) DID NOT APPLY TO SUCH RETURNS.  FIRST, UNLIKE OTHER
CRIMINAL PROVISIONS CLEARLY APPLICABLE TO INCOME TAXES WHICH APPEARED
IN THE INCOME TAX CHAPTER OF THE 1939 CODE AND WERE SPECIFICALLY
DESIGNED TO PUNISH EVASION OF THAT TAX, SEC. 3616(A) WAS PLACED AMONG
THE CODE'S "GENERAL ADMINISTRATIVE PROVISIONS" AND DID NOT SPECIFICALLY
REFER TO INCOME TAXES.  SECOND, SEC.  3616(A) REQUIRED THAT THE FALSE
OR FRAUDULENT RETURN BE FILED "WITH INTENT TO DEFEAT OR EVADE THE
VALUATION, ENUMERATION, OR ASSESSMENT INTENDED TO BE MADE."  THIS
PROVISION, AS THE COURT HAD ALREADY HELD IN BERRA V. UNITED STATES, 351
U.S. 131, IF APPLIED TO INCOME TAX RETURNS WOULD HAVE MADE SEC. 3616(A)
COMPLETELY CO-EXTENSIVE WITH THE PREDECESSOR OF SEC. 7201 WHERE THE
ATTEMPT TO EVADE INCOME TAXES WAS ACCOMPLISHED BY FILING A FRAUDULENT
INCOME TAX RETURN.  IT WAS CLEAR THAT THE PREDECESSOR OF SEC. 7201
APPLIED TO THIS METHOD OF ATTEMPTING TO EVADE INCOME TAXES AND THE
COURT WAS UNWILLING TO PRESUME THAT CONGRESS INTENDED TO ENACT BOTH
FELONY AND MISDEMEANOR PROVISIONS WHICH COMPLETELY OVERLAP IN THIS
IMPORTANT AREA. 

BOTH OF THESE BASES OF DECISION WERE REMOVED BY THE 1954 CODE. 
UNLIKE THEIR PREDECESSORS IN THE 1939 CODE, SECS. 7201, 7203, AND 7207,
TOGETHER WITH OTHER SECTIONS CLEARLY APPLICABLE TO INCOME TAX
VIOLATIONS, WERE ALL PLACED IN THE SAME SECTION (PART I OF CHAPTER 75)
OF THE 1954 CODE.  CONGRESS SPECIFICALLY STATED THAT IT PLACED ALL
THESE PROVISIONS IN THE SAME PART OF THE CODE BECAUSE IT WISHED THEM TO
APPLY TO TAXES GENERALLY, INCLUDING INCOME TAXES.  SEE S. REP. NO.
1622, 83D CONG., 2D SESS., 147; H.R. REP. NO. 1337, 83D CONG., 2D
SESS., 108.  IN CONTRAST, PART II OF CHAPTER 75 CONTAINS PROVISIONS
APPLICABLE ONLY TO SPECIFIED TAXES, NONE OF WHICH INCLUDE INCOME
TAXES. 

FURTHER, CONGRESS, IN ENACTING SEC. 7207 DID NOT RE-ENACT SEC.
3616(A)'S REQUIREMENT THAT THE FALSE OR FRAUDULENT RETURN BE MADE WITH
"INTENT TO DEFEAT OR EVADE" THE TAX DUE.  THUS THE SECOND BASIS FOR THE
COURT'S CONCLUSION IN ACHILLI THAT SEC. 3616(A) DID NOT APPLY TO INCOME
TAXES WAS REMOVED.  SEE BERRA V. UNITED STATES, SUPRA, AT 134, N. 5. 
FINALLY, IN PROVIDING THAT THE FALSE OR FRAUDULENT RETURN BE MADE
"WILLFULLY," SEC. 7207 WAS CONFORMED TO THE LANGUAGE CONTAINED IN THE
OTHER MISDEMEANOR PROVISIONS CLEARLY APPLICABLE TO INCOME TAXES.  SEE,
E.G., SEC. 7203. 

WE CONCLUDE, THEREFORE, THAT SEC. 7207 APPLIES TO INCOME TAX
VIOLATIONS.  SINCE THERE IS NO DOUBT THAT SECS. 7201 AND 7203 ALSO
APPLY TO INCOME TAX VIOLATIONS, WITH OBVIOUS OVERLAPPING AMONG THEM,
THERE CAN BE NO DOUBT THAT THE LESSER-INCLUDED OFFENSE DOCTRINE APPLIES
TO THESE STATUTES IN AN APPROPRIATE CASE.  SEE SPIES V. UNITED STATES,
317 U.S. 492, 495; BERRA V. UNITED STATES, SUPRA.

                   II. 

THE BASIC PRINCIPLES CONTROLLING WHETHER OR NOT A LESSER-INCLUDED
OFFENSE CHARGE SHOULD BE GIVEN IN A PARTICULAR CASE HAVE BEEN SETTLED
BY THIS COURT.  RULE 31(C) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
PROVIDES, IN RELEVANT PART, THAT THE "DEFENDANT MAY BE FOUND GUILTY OF
AN OFFENSE NECESSARILY INCLUDED IN THE OFFENSE CHARGED."  THUS, "IN A
CASE WHERE SOME OF THE ELEMENTS OF THE CRIME CHARGED THEMSELVES
CONSTITUTE A LESSER CRIME, THE DEFENDANT, IF THE EVIDENCE JUSTIFIES IT
...  IS ENTITLED TO AN INSTRUCTION WHICH WOULD PERMIT A FINDING OF
GUILT OF THE LESSER OFFENSE."  BERRA V. UNITED STATES, SUPRA, AT 134. 
SEE STEVENSON V. UNITED STATES, 162 U.S. 313.  BUT A LESSER-OFFENSE
CHARGE IS NOT PROPER WHERE, ON THE EVIDENCE PRESENTED, THE FACTUAL
ISSUES TO BE RESOLVED BY THE JURY ARE THE SAME AS TO BOTH THE LESSER
AND GREATER OFFENSES.  BERRA V. UNITED STATES, SUPRA; SPARF V. UNITED
STATES, 156 U.S. 51, 63-64.  IN OTHER WORDS, THE LESSER OFFENSE MUST BE
INCLUDED WITHIN BUT NOT, ON THE FACTS OF THE CASE, BE COMPLETELY
ENCOMPASSED BY THE GREATER.  A LESSER-INCLUDED OFFENSE INSTRUCTION IS
ONLY PROPER WHERE THE CHARGED GREATER OFFENSE REQUIRES THE JURY TO FIND
A DISPUTED FACTUAL ELEMENT WHICH IS NOT REQUIRED FOR CONVICTION OF THE
LESSER-INCLUDED OFFENSE.  BERRA V. UNITED STATES, SUPRA; SPARF V.
UNITED STATES, SUPRA, AT 63-64.  (FN6)  WE NOW APPLY THE PRINCIPLES
DECLARED IN THESE CASES TO THE INSTANT CASE. 

                                       III. 

THE OFFENSE HERE CHARGED WAS A VIOLATION OF SEC. 7201, WHICH
PROSCRIBES WILLFULLY ATTEMPTING IN ANY MANNER TO EVADE OR DEFEAT ANY
TAX IMPOSED BY THE INTERNAL REVENUE CODE.  AS THIS COURT HAS
RECOGNIZED, THIS FELONY PROVISION IS "THE CAPSTONE OF A SYSTEM OF
SANCTIONS WHICH SINGLY OR IN COMBINATION WERE CALCULATED TO INDUCE
PROMPT AND FORTHRIGHT FULFILLMENT OF EVERY DUTY UNDER THE INCOME TAX
LAW AND TO PROVIDE A PENALTY SUITABLE TO EVERY DEGREE OF DELINQUENCY." 
SPIES V. UNITED STATES, SUPRA, AT 497.  AS SUCH A CAPSTONE, SEC. 7201
NECESSARILY INCLUDES AMONG ITS ELEMENTS ACTIONS WHICH, IF ISOLATED FROM
THE OTHERS, CONSTITUTE LESSER OFFENSES IN THIS HEIRARCHICAL SYSTEM OF
SANCTIONS.  THEREFORE, IF ON THE FACTS OF A GIVEN CASE THERE ARE
DISPUTED ISSUES OF FACT WHICH WOULD ENABLE THE JURY RATIONALLY TO FIND
THAT, ALTHOUGH ALL THE ELEMENTS OF SEC. 7201 HAVE NOT BEEN PROVED, ALL
THE ELEMENTS OF ONE OR MORE LESSER OFFENSES HAVE BEEN, IT IS CLEAR THAT
THE DEFENDANT IS ENTITLED TO A LESSER-INCLUDED OFFENSE CHARGE AS TO
SUCH LESSER OFFENSES. 

AS HAS BEEN HELD BY THIS COURT, THE ELEMENTS OF SEC. 7201 ARE
WILLFULNESS; THE EXISTENCE OF A TAX DEFICIENCY, LAWN V. UNITED STATES,
355 U.S. 339, 361; SPIES V. UNITED STATES, SUPRA, AT 496; AND AN
AFFIRMATIVE ACT CONSTITUTING AN EVASION OR ATTEMPTED EVASION OF THE
TAX, SPIES V. UNITED STATES, SUPRA.  IN COMPARISON, SEC. 7203 MAKES IT
A MISDEMEANOR WILLFULLY TO FAIL TO PERFORM A NUMBER OF SPECIFIED ACTS
AT THE TIME REQUIRED BY LAW - THE ONE HERE RELEVANT BEING THE FAILURE
TO PAY TAX WHEN DUE.  THIS MISDEMEANOR REQUIRES ONLY WILLFULNESS AND
THE OMISSION OF THE REQUIRED ACT - HERE THE PAYMENT OF THE TAX WHEN
DUE.  AS RECOGNIZED BY THIS COURT IN SPIES V. UNITED STATES, SUPRA, AT
499, THE DIFFERENCE BETWEEN A MERE WILLFUL FAILURE TO PAY A TAX (OR
PERFORM OTHER ENUMERATED ACTIONS) WHEN DUE UNDER SEC. 7203 AND A
WILLFUL ATTEMPT TO EVADE OR DEFEAT TAXES UNDER SEC. 7201 IS THAT THE
LATTER FELONY INVOLVES "SOME WILLFUL COMMISSION IN ADDITION TO THE
WILLFUL OMISSIONS THAT MAKE UP THE LIST OF MISDEMEANORS."  WHERE THERE
IS, IN A SEC. 7201 PROSECUTION, A DISPUTED ISSUE OF FACT AS TO THE
EXISTENCE OF THE REQUISITE AFFIRMATIVE COMMISSION IN ADDITION TO THE
SEC. 7203 OMISSION, A DEFENDANT WOULD, OF COURSE, BE ENTITLED TO A
LESSER-INCLUDED OFFENSE CHARGE BASED ON SEC. 7203.  CF. SPIES V. UNITED
STATES, SUPRA.  IN THIS CASE, HOWEVER, IT IS UNDISPUTED THAT PETITIONER
FILED A TAX RETURN AND THAT THE PETITIONER'S FILING OF A FALSE TAX
RETURN CONSTITUTED A SUFFICIENT AFFIRMATIVE COMMISSION TO SATISFY THAT
REQUIREMENT OF SEC. 7201.  THE ONLY ISSUE AT TRIAL WAS WHETHER
PETITIONER'S ACT WAS WILLFUL.  GIVEN THIS AFFIRMATIVE COMMISSION AND
THE CONCEDED TAX DEFICIENCY, IF PETITIONER'S ACT WAS WILLFUL, THAT IS,
IF THE JURY BELIEVED, AS IT OBVIOUSLY DID, THAT HE KNEW THAT THE
CAPITAL GAIN ON THE SALE OF THE PROPERTY WAS REPORTABLE IN 1957, HE WAS
GUILTY OF VIOLATING BOTH SECS. 7201 AND 7203.  IF HIS ACT WAS NOT
WILLFUL, HE WAS NOT GUILTY OF VIOLATING EITHER SEC. 7201 OR SEC. 7203. 
THUS ON THE FACTS OF THIS CASE, SECS. 7201 AND 7203 "COVERED PRECISELY
THE SAME GROUND."  BERRA V. UNITED STATES, SUPRA, AT 134.  THIS BEING
SO, ON THE AUTHORITIES CITED, IT IS CLEAR THAT PETITIONER WAS NOT
ENTITLED TO A LESSER-INCLUDED OFFENSE CHARGE BASED ON SEC. 7203. 

FALSE OR FRAUDULENT IN ANY MATERIAL MANNER.  THE ELEMENTS HERE INVOLVED
ARE WILLFULNESS AND THE COMMISSION OF THE PROHIBITED ACT.  SECTION 7207
DOES NOT, HOWEVER, REQUIRE THAT THE ACT BE DONE AS AN ATTEMPT TO EVADE
OR DEFEAT TAXES.  CONDUCT COULD THEREFORE VIOLATE SEC. 7207 WITHOUT
VIOLATING SEC. 7201 WHERE THE FALSE STATEMENT, THOUGH MATERIAL, DOES
NOT CONSTITUTE AN ATTEMPT TO EVADE OR DEFEAT TAXATION BECAUSE IT DOES
NOT HAVE THE REQUISITE EFFECT OF REDUCING THE STATED TAX LIABILITY. 
THIS MAY BE THE CASE, FOR EXAMPLE, WHERE A TAXPAYER UNDERSTATES HIS
GROSS RECEIPTS AND HE OFFSETS THIS BY ALSO UNDERSTATING HIS DEDUCTIBLE
EXPENSES.  IN THIS EXAMPLE, IF THE GOVERNMENT IN A SEC. 7201 CASE
CHARGED TAX EVASION ON THE GROUNDS THAT THE DEFENDANT HAD UNDERSTATED
HIS TAX BY UNDERSTATING HIS GROSS RECEIPTS, AND THE DEFENDANT CONTENDED
THAT THIS WAS NOT SO, AS THE MISSTATEMENT OF GROSS RECEIPTS HAD BEEN
OFFSET BY AN UNDERSTATEMENT OF DEDUCTIBLE EXPENSES, THE DEFENDANT WOULD
BE ENTITLED TO A LESSER-INCLUDED OFFENSE CHARGE BASED ON SEC. 7207,
THERE BEING THIS RELEVANT DISPUTED ISSUE OF FACT.  THIS WOULD BE SO,
FOR IN SUCH A CASE, IF THE JURY BELIEVED THAT AN UNDERSTATEMENT OF
DEDUCTIBLE EXPENSES HAD OFFSET THE UNDERSTATEMENT OF GROSS RECEIPTS,
WHILE THE DEFENDANT WOULD HAVE VIOLATED SEC. 7207 BY WILLFULLY MAKING A
MATERIAL FALSE AND FRAUDULENT STATEMENT ON HIS RETURN, HE WOULD NOT
HAVE VIOLATED SEC. 7201 AS THERE WOULD NOT HAVE BEEN THE REQUISITE SEC.
7201 ELEMENT OF A TAX DEFICIENCY.  HERE, HOWEVER, THERE IS NO DISPUTE
THAT PETITIONER'S MATERIAL MISSTATEMENT RESULTED IN A TAX DEFICIENCY. 
THUS THERE IS NO DISPUTED ISSUE OF FACT CONCERNING THE EXISTENCE OF AN
ELEMENT REQUIRED FOR CONVICTION OF SEC. 7201 BUT NOT REQUIRED FOR
CONVICTION OF SEC. 7207.  GIVEN PETITIONER'S MATERIAL MISSTATEMENT
WHICH RESULTED IN A TAX DEFICIENCY, IF, AS THE JURY OBVIOUSLY FOUND,
PETITIONER'S ACT WAS WILLFUL IN THE SENSE THAT HE KNEW THAT HE SHOULD
HAVE REPORTED MORE INCOME THAN HE DID FOR THE YEAR 1957, HE WAS GUILTY
OF VIOLATING BOTH SECS. 7201 AND 7207.  IF HIS ACTION WAS NOT WILLFUL,
HE WAS GUILTY OF VIOLATING NEITHER.  AS WAS TRUE WITH SEC. 7203, ON THE
FACTS OF THIS CASE SECS. 7201 AND 7207 "COVERED PRECISELY THE SAME
GROUND," BERRA V. UNITED STATES, SUPRA, AT 134, AND THUS PETITIONER WAS
NOT ENTITLED TO A LESSER-INCLUDED OFFENSE CHARGE BASED ON SEC. 7207. 

PETITIONER MAKES ONE FINAL CONTENTION.  HE ARGUES THAT HE COULD HAVE
BEEN ACQUITTED OF ATTEMPTING TO EVADE OR DEFEAT HIS 1957 TAXES, IN
VIOLATION OF SEC. 7201, BUT STILL HAVE BEEN CONVICTED FOR WILLFULLY
FAILING TO PAY HIS TAX WHEN DUE IN VIOLATION OF SEC. 7203 OR WILLFULLY
FILING A FRAUDULENT RETURN IN VIOLATION OF SEC. 7207, IF THE JURY
BELIEVED HIS STATEMENT CONTAINED IN THE GOVERNMENT-INTRODUCED
AFFIDAVIT, THAT, ALTHOUGH HE KNEW THAT PROFIT ON THE SALE IN QUESTION
WAS REPORTABLE FOR 1957 AND THAT TAX WAS DUE THEREON, HE INTENDED TO
REPORT THE SALE AND PAY THE 1957 TAX AT SOME UNSPECIFIED FUTURE DATE. 
THE BASIC PREMISE OF THIS ARGUMENT IS THAT, ALTHOUGH ALL THREE SECTIONS
REQUIRE WILLFULNESS, ON THE FACTS HERE, THE CONTENTS OF THESE
WILLFULNESS REQUIREMENTS DIFFER.  THE ARGUMENT IS MADE THAT WHILE AN
INTENT TO REPORT AND PAY THE TAX IN THE FUTURE DOES NOT VITIATE THE
WILLFULNESS REQUIREMENTS OF SECS. 7203 AND 7207, IT DOES CONSTITUTE A
DEFENSE TO A WILLFUL ATTEMPT "IN ANY MANNER TO EVADE OR DEFEAT ANY TAX
IMPOSED BY" THE INTERNAL REVENUE CODE, IN VIOLATION OF SEC. 7201. 
WHILE WE AGREE THAT THE INTENT TO REPORT THE INCOME AND PAY THE TAX
SOMETIME IN THE FUTURE DOES NOT VITIATE THE WILLFULNESS REQUIRED BY
SECS. 7203 AND 7207, WE CANNOT AGREE THAT IT VITIATES THE WILLFULNESS
REQUIREMENT OF SEC. 7201. 

NO DEFENSE TO A SEC. 7201 EVASION CHARGE IS MADE OUT BY SHOWING THAT
THE DEFENDANT WILLFULLY AND FRAUDULENTLY UNDERSTATED HIS TAX LIABILITY
FOR THE YEAR INVOLVED BUT INTENDED TO REPORT THE INCOME AND PAY THE TAX
AT SOME LATER TIME.  AS THIS COURT HAS RECOGNIZED, SEC.  7201 INCLUDES
THE OFFENSE OF WILLFULLY ATTEMPTING TO EVADE OR DEFEAT THE ASSESSMENT
OF A TAX AS WELL AS THE OFFENSE OF WILLFULLY ATTEMPTING TO EVADE OR
DEFEAT THE PAYMENT OF A TAX.  LAWN V. UNITED STATES, SUPRA.  THE
INDICTMENT HERE CHARGED AN ATTEMPT TO EVADE INCOME TAXES BY DEFEATING
THE ASSESSMENT FOR 1957.  THE FACT THAT PETITIONER STATED TO A REVENUE
AGENT THAT HE INTENDED TO REPORT HIS 1957 INCOME IN SOME LATER YEAR,
EVEN IF TAKEN AT FACE VALUE, WOULD NOT DETRACT FROM THE CRIMINALITY OF
HIS WILLFUL ACT DEFEATING THE 1957 ASSESSMENT.  THAT CRIME WAS COMPLETE
AS SOON AS THE FALSE AND FRAUDULENT UNDERSTATEMENT OF TAXES (ASSUMING,
OF COURSE, THAT THERE WAS IN FACT A DEFICIENCY) WAS FILED.  SEE UNITED
STATES V. BEACON BRASS CO., 344 U.S. 43, 46.  SEE ALSO SPIES V. UNITED
STATES, SUPRA, AT 498-499. 

IN SUM, IT IS CLEAR HERE THAT THERE WERE NO DISPUTED ISSUES OF FACT
WHICH WOULD JUSTIFY INSTRUCTING THE JURY THAT IT COULD FIND THAT
PETITONER HAD COMMITTED ALL THE ELEMENTS OF EITHER OR BOTH OF THE SECS.
7203 AND 7207 MISDEMEANORS WITHOUT HAVING COMMITTED A VIOLATION OF THE
SEC. 7201 FELONY.  THIS BEING THE CASE, THE PETITIONER WAS NOT ENTITLED
TO A LESSER-INCLUDED OFFENSE CHARGE AND THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED. 

FN1  PETITIONER WAS CHARGED WITH A VIOLATION OF SEC. 7201 FOR 1956 IN
ADDITION TO THE CHARGE FOR 1957.  THE JURY ACQUITTED HIM WITH RESPECT
TO THE 1956 CHARGE, WHICH IS CONSEQUENTLY NOT INVOLVED IN THIS CASE. 

FN2 SECTION 7207 OF THE INTERNAL REVENUE CODE OF 1954 PROVIDES: 

"ANY PERSON WHO WILLFULLY DELIVERS OR DISCLOSES TO THE SECRETARY OR
HIS DELEGATE ANY LIST, RETURN, ACCOUNT, STATEMENT, OR OTHER DOCUMENT,
KNOWN BY HIM TO BE FRAUDULENT OR TO BE FALSE AS TO ANY MATERIAL MATTER,
SHALL BE FINED NOT MORE THAN $1,000, OR IMPRISONED NOT MORE THAN 1
YEAR, OR BOTH." 

FN3  SECTION 7203 OF THE INTERNAL REVENUE CODE OF 1954 PROVIDES: 

"ANY PERSON REQUIRED UNDER THIS TITLE TO PAY ANY ESTIMATED TAX OR
TAX, OR REQUIRED BY THIS TITLE OR BY REGULATIONS MADE UNDER AUTHORITY
THEREOF TO MAKE A RETURN (OTHER THAN A RETURN REQUIRED UNDER AUTHORITY
OF SECTION 6015 OR SECTION 6016), KEEP ANY RECORDS, OR SUPPLY ANY
INFORMATION, WHO WILLFULLY FAILS TO PAY SUCH ESTIMATED TAX OR TAX, MAKE
SUCH RETURN, KEEP SUCH RECORDS, OR SUPPLY SUCH INFORMATION, AT THE TIME
OR TIMES REQUIRED BY LAW OR REGULATIONS, SHALL, IN ADDITION TO OTHER
PENALTIES PROVIDED BY LAW, BE GUILTY OF A MISDEMEANOR AND, UPON
CONVICTION THEREOF, SHALL BE FINED NOT MORE THAN $10,000, OR IMPRISONED
NOT MORE THAN 1 YEAR, OR BOTH, TOGETHER WITH THE COSTS OF
PROSECUTION." 

FN4  THE FULL INSTRUCTIONS REQUESTED BY PETITONER WERE AS FOLLOWS: 

NO. 1.  "UNDER THE LAW YOU MAY FIND A DEFENDANT GUILTY OF A LESSER
CRIME THAN THE CRIMES CHARGED IN THE INDICTMENT. 

"A STATUTE UPON WHICH A LESSER CRIME IS BASED (SECTION 7203 OF THE
INTERNAL REVENUE CODE OF 1954), OMITTING THAT PART OF THE ACT WHICH
DOES NOT APPLY IN THIS CASE, READS AS FOLLOWS: 

"'ANY PERSON REQUIRED UNDER THIS TITLE TO PAY ANY  ...  TAX,  ...
WHO WILLFULLY FAILS TO PAY SUCH TAX,  ...  AT THE TIME OR TIMES
REQUIRED BY LAW OR REGULATIONS, SHALL, IN ADDITION TO OTHER PENALTIES
PROVIDED BY LAW, BE GUILTY OF A MISDEMEANOR.' 

"AND THEN THE STATUTE PROVIDES FOR THE PENALTY. 

"THEREFORE, IF YOU FIND BEYOND A REASONABLE DOUBT THAT (WITH RESPECT
TO EITHER OR BOTH OF THE COUNTS IN THIS INDICTMENT) THE DEFENDANT
WILLFULLY FAILED TO PAY THE CORRECT TAX TO THE UNITED STATES AT THE
TIME OF THE FILING OF HIS RETURN, BUT YOU FURTHER FIND THAT THE
DEFENDANT DID NOT WILLFULLY ATTEMPT TO DEFEAT AND EVADE HIS INCOME
TAXES BY THE FILING OF A FALSE AND FRAUDULENT RETURN, YOU WILL IN YOUR
VERDICT SAY 'GUILTY OF VIOLATING A LESSER-INCLUDED OFFENSE.' 

"IF YOU HAVE A REASONABLE DOUBT AS TO WHETHER DEFENDANT WILLFULLY
FAILED TO PAY THE CORRECT TAX WHEN FILING HIS INCOME TAX RETURN OR
RETURNS UNDER ANY COUNT OR COUNTS OF THIS INDICTMENT, YOU WILL RESOLVE
THE DOUBT IN FAVOR OF THE DEFENDANT AND ACQUIT HIM OF THE LESSER
INCLUDED OFFENSE AS TO SUCH COUNT OR COUNTS." 

NO. 2.  "AS I HAVE SAID PREVIOUSLY, THE LAW PERMITS THE JURY TO FIND
A DEFENDANT GUILTY OF ANY LESSER OFFENSE WHICH IS NECESSARILY INCLUDED
IN THE CRIME CHARGED.  THE OFFENSE CHARGED IN THE INDICTMENT HERE
NECESSARILY INCLUDES A LESSER OFFENSE BASED UPON THE FOLLOWING STATUTE
(SECTION 7207 OF THE INTERNAL REVENUE CODE OF 1954), OMITTING THAT PART
OF THE ACT WHICH DOES NOT APPLY IN THIS CASE; IT READS AS FOLLOWS: 

"'ANY PERSON WHO WILLFULLY DELIVERS OR DISCLOSES TO THE SECRETARY OF
THE TREASURY OR HIS DELEGATE ANY  ...  RETURN,  ...  OR OTHER DOCUMENT
KNOWN BY HIM TO BE FRAUDULENT OR TO BE FALSE AS TO ANY MATERIAL
MATTER:' 

"AND THEN THE STATUTE PROVIDES FOR THE PENALTY. 

"THEREFORE, IF YOU FIND BEYOND A REASONABLE DOUBT THAT (WITH RESPECT
TO EITHER OR BOTH OF THE COUNTS IN THIS INDICTMENT) THE DEFENDANT
WILLFULLY DELIVERED TO THE DISTRICT DIRECTOR OF INTERNAL REVENUE AT ST.
LOUIS, MISSOURI HIS AND HIS WIFE'S FEDERAL JOINT INCOME TAX RETURN OR
RETURNS FOR THE YEARS 1956 AND 1957 WHICH WERE KNOWN BY HIM TO BE
FRAUDULENT OR FALSE AS TO ANY MATERIAL MATTER, BUT YOU FURTHER FIND
THAT THE DEFENDANT DID NOT WILLFULLY ATTEMPT TO DEFEAT AND EVADE HIS
INCOME TAX BY THE FILING OF A FALSE AND FRAUDULENT RETURN, YOU WILL IN
YOUR VERDICT SAY 'GUILTY OF VIOLATING A LESSER-INCLUDED OFFENSE.' 

"IF YOU HAVE A REASONABLE DOUBT AS TO WHETHER DEFENDANT WILLFULLY SO
DELIVERED UNDER ANY COUNT OR COUNTS OF THIS INDICTMENT HIS AND HIS
WIFE'S FEDERAL JOINT INCOME TAX RETURN OR RETURNS WHICH WERE KNOWN BY
HIM TO BE FRAUDULENT OR FALSE AS TO A MATERIAL MATTER, YOU WILL RESOLVE
THE DOUBT IN FAVOR OF THE DEFENDANT AND ACQUIT HIM OF THE LESSER
INCLUDED OFFENSE AS TO SUCH COUNT OR COUNTS." 

FN5  THIS ISSUE DIVIDED THE COURT OF APPEALS, WITH TWO JUDGES HOLDING
THAT SEC. 7207 DOES NOT APPLY TO FALSE INCOME TAX RETURNS AND ONE
JUDGE, CONCURRING IN RESULT, DISSENTING ON THIS POINT. 

FN6  THIS COURT HAS LONG RECOGNIZED THAT TO HOLD OTHERWISE WOULD ONLY
INVITE THE JURY TO PICK BETWEEN THE FELONY AND THE MISDEMEANOR SO AS TO
DETERMINE THE PUNISHMENT TO BE IMPOSED, A DUTY CONGRESS HAS
TRADITIONALLY LEFT TO THE JUDGE.  SEE SPARF V. UNITED STATES, SUPRA, AT
63-64; BERRA V. UNITED STATES, SUPRA, AT 135.  THIS GENERAL PRINCIPLE
IS PARTICULARLY APPLICABLE IN THIS AREA.  IN COMMENTING ON SEC. 7201,
THE HOUSE WAYS AND MEANS COMMITTEE EXPRESSLY STATED THAT MINIMUM
PENALTIES WERE OMITTED FROM SEC. 7201 IN ORDER TO MAKE IT "POSSIBLE FOR
THE JUDGES TO BETTER FIX THE PENALTIES TO FIT THE CIRCUMSTANCES."  H.R.
REP.  NO. 1337, 83D CONG., 2D SESS., 108.  THE LACK OF MINIMUM
PENALTIES ALSO, OF COURSE, DENIES TO THE PROSECUTOR AN UNBRIDLED
DISCRETION AS TO THE PENALTY TO BE IMPOSED UPON PARTICULAR DEFENDANTS
BY DECIDING WHETHER, ON THE SAME FACTS, TO CHARGE A FELONY OR A
MISDEMEANOR. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT, BELIEVING THAT
THERE WAS EVIDENCE SUFFICIENT TO REQUIRE THE COURT TO CHARGE THE JURY,
AS PETITIONER REQUESTED, THAT THEY COULD ACQUIT HIM ON THIS FELONY
CHARGE OF HAVING WILLFULLY ATTEMPTED TO EVADE OR DEFEAT TAXES IN
VIOLATION OF SEC. 7201 BUT STILL CONVICT HIM OF THE LESSER MISDEMEANOR
OFFENSES INCLUDED IN THE FELONY CHARGE.  SEE BERRA V. UNITED STATES,
351 U.S. 131, 135 (DISSENTING OPINION).  CF. ACHILLI V. UNITED STATES,
353 U.S. 373, 379 (DISSENTING OPINION). 
..END :















HENRY V. COLLINS 380 U.S. 356 


NO. 89.  DECIDED MARCH 29, 1965.* - CERTIORARI GRANTED; - MISS.  - , 158
SO. 2D 28, AND - MISS.  - , 158 SO. 2D 695, REVERSED. 

*TOGETHER WITH NO. 90, HENRY V. PEARSON, ALSO ON PETITION FOR WRIT OF
CERTIORARI TO THE SAME COURT. 


AFTER HIS ARREST FOR DISTURBING THE PEACE, PETITIONER STATED THAT IT
WAS "THE RESULT OF A DIABOLICAL PLOT" IN WHICH RESPONDENTS, A COUNTY
ATTORNEY AND A CHIEF OF POLICE, WERE IMPLICATED.  RESPONDENTS BROUGHT
SUITS FOR LIBEL AND OBTAINED JURY VERDICTS.  THE JUDGMENTS ARE REVERSED
SINCE THE JURY MIGHT WELL HAVE UNDERSTOOD THE INSTRUCTIONS TO PERMIT
RECOVERY ON A SHOWING OF INTENT TO INFLICT HARM, RATHER THAN INTENT TO
INFLICT HARM THROUGH FALSEHOOD.  THE CONSTITUTION PERMITS RECOVERY BY
THESE PUBLIC OFFICIALS ONLY FOR A FALSE STATEMENT MADE "WITH KNOWLEDGE
THAT IT WAS FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR
NOT."  GARRISON V. LOUISIANA, 379 U.S. 64, AND NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S. 254, FOLLOWED. 

HENRY V. COLLINS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
MISSISSIPPI. 

PER CURIAM. 

THE PETITIONS FOR CERTIORARI ARE GRANTED.  THE JUDGMENTS ARE
REVERSED. 

AFTER PETITIONER'S ARREST ON A CHARGE OF DISTURBING THE PEACE, HE
ISSUED A STATEMENT TO THE EFFECT THAT THIS ARREST WAS THE RESULT OF "A
DIABOLICAL PLOT," IN WHICH RESPONDENTS, THE COUNTY ATTORNEY AND CHIEF
OF POLICE OF CLARKSDALE, WERE IMPLICATED.  RESPONDENTS BROUGHT SUITS
FOR LIBEL AND OBTAINED JURY VERDICTS.  THE SUPREME COURT OF MISSISSIPPI
AFFIRMED.  - MISS.  - , 158 SO. 2D 28; - MISS.  - , 158 SO. 2D 695. 

THE FOLLOWING INSTRUCTIONS REQUESTED BY THE RESPONDENTS, APPROVED BY
THE TRIAL JUDGE, WERE READ TO THE JURY: 

"THE COURT INSTRUCTS THE JURY FOR THE PLAINTIFF THAT MALICE DOES NOT
NECESSARILY MEAN HATRED OR ILL WILL, BUT THAT MALICE MAY CONSIST MERELY
OF CULPABLE RECKLESSNESS OR A WILFUL AND WANTON DISREGARD OF THE RIGHTS
AND INTERESTS OF THE PERSON DEFAMED." 

THE JURY, WAS ALSO INSTRUCTED, AT RESPONDENTS' REQUEST, THAT: 

"  ...  IF YOU BELIEVE FROM THE EVIDENCE THAT DEFENDANT PUBLISHED A
FALSE STATEMENT CHARGING THAT HIS ARREST  ...  WAS THE RESULT OF A
DIABOLICAL PLOT  ...  , YOU MAY INFER MALICE, AS DEFINED IN THESE
INSTRUCTIONS, FROM THE FALSITY AND LIBELOUS NATURE OF THE STATEMENT,
ALTHOUGH MALICE AS A LEGAL PRESUMPTION DOES NOT ARISE FROM THE FACT
THAT THE STATEMENT IN QUESTION IS FALSE AND LIBELOUS.   IT IS FOR YOU
TO DETERMINE AS A FACT, IF YOU HAVE FIRST DETERMINED FROM THE EVIDENCE
THAT DEFENDANT PUBLISHED THE STATEMENT IN QUESTION AND THAT IT IS
FALSE, WHETHER OR NOT THE STATEMENT IN QUESTION WAS ACTUALLY MADE WITH
MALICE." 

THE JURY MIGHT WELL HAVE UNDERSTOOD THESE INSTRUCTIONS TO ALLOW
RECOVERY ON A SHOWING OF INTENT TO INFLICT HARM, RATHER THAN INTENT TO
INFLICT HARM THROUGH FALSEHOOD.  SEE GARRISON V. LOUISIANA, 379 U.S.
64, 73.  "THE CONSTITUTIONAL GUARANTEES  ...  PROHIBIT A PUBLIC
OFFICIAL FROM RECOVERING DAMAGES FOR A DEFAMATORY FALSEHOOD RELATING TO
HIS OFFICIAL CONDUCT UNLESS HE PROVES THAT THE STATEMENT WAS MADE ...
WITH KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS DISREGARD OF WHETHER
IT WAS FALSE OR NOT."  NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254,
279-280. 

FOR THE REASONS SET OUT IN THEIR RESPECTIVE CONCURRING OPINIONS IN
NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 293-305, AND GARRISON V.
LOUISIANA, 379 U.S. 64, 79-88, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS
AND MR. JUSTICE GOLDBERG CONCUR IN REVERSAL OF THESE JUDGMENTS, NOT
MERELY FOR ERROR IN THE INSTRUCTIONS READ TO THE JURY, BUT ON THE
GROUND THAT IT WOULD VIOLATE THE FIRST AND FOURTEENTH AMENDMENTS TO
SUBJECT PETITIONER TO ANY LIBEL JUDGMENT SOLELY BECAUSE OF HIS
PUBLICATION OF CRITICISMS AGAINST RESPONDENTS' PERFORMANCE OF THEIR
PUBLIC DUTIES. 
..END :


















O'KEEFFE, DEPUTY COMMISSIONER, BUREAU OF EMPLOYEES' COMPENSATION, U.S.
DEPARTMENT OF LABOR V. SMITH, HINCHMAN & GRYLLS ASSOCIATES, INC., 380
U.S. 359 


NO. 307.  DECIDED MARCH 29, 1965.  - CERTIORARI GRANTED; 327 F.2D 1003,
REVERSED. 


AN EMPLOYEE OF A GOVERNMENT CONTRACTOR AT A DEFENSE BASE IN KOREA
DROWNED DURING A SATURDAY OUTING.  HIS EMPLOYER CONSIDERED ALL
EMPLOYEES TO BE IN THE COURSE OF REGULAR OCCUPATION FROM THE TIME THEY
LEFT THE UNITED STATES UNTIL THEY RETURNED, AND EXPECTED EMPLOYEES TO
SEEK RECREATION AWAY FROM THE JOB SITE.  ON STIPULATED FACTS THE DEPUTY
COMMISSIONER, BUREAU OF EMPLOYEES' COMPENSATION, FOUND THAT DEATH AROSE
OUT OF AND IN THE COURSE OF EMPLOYMENT, AND AWARDED DAMAGES PURSUANT TO
THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT.  THE DISTRICT
COURT AFFIRMED THE AWARD, WHICH THE COURT OF APPEALS REVERSED.  HELD:
SINCE THE ACT PROVIDES THAT THE DEPUTY COMMISSIONER'S ORDER MAY BE SET
ASIDE BY A REVIEWING COURT ONLY IF NOT IN ACCORDANCE WITH LAW AND SINCE
THE DEPUTY COMMISSIONER CORRECTLY APPLIED THE STANDARD OF O'LEARY V.
BROWN-PACIFIC-MAXON, INC., 340 U.S. 504, THAT THE CONDITIONS OF
EMPLOYMENT CREATE THE "ZONE OF SPECIAL DANGER" OUT OF WHICH THE INJURY
AROSE, HIS HOLDING CANNOT BE SAID TO BE IRRATIONAL OR WITHOUT
SUBSTANTIAL EVIDENCE AND SHOULD BE UPHELD. 

O'KEEFFE, DEPUTY COMMISSIONER, BUREAU OF EMPLOYEES' COMPENSATION, U.S.
DEPARTMENT OF LABOR V. SMITH, HINCHMAN & GRYLLS ASSOCIATES, INC., ET
AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

ROBERT C. ECKER DROWNED DURING A SATURDAY OUTING WHILE BOATING ON A
SOUTH KOREAN LAKE.  AT THE TIME OF HIS DEATH HE WAS EMPLOYED AT A
DEFENSE BASE IN SOUTH KOREA BY THE RESPONDENT, SMITH, HINCHMAN & GRYLLS
ASSOCIATES, A GOVERNMENT CONTRACTOR. 

THE DECEDENT HAD BEEN HIRED IN THE UNITED STATES UNDER AN ORAL
CONTRACT THE TERMS OF WHICH PROVIDED THAT HE WAS TO BE TRANSPORTED TO
SOUTH KOREA AT HIS EMPLOYER'S EXPENSE, REMAIN THERE FOR TWO YEARS, AND
THEN, AT HIS EMPLOYER'S EXPENSE, BE TRANSPORTED BACK TO THE UNITED
STATES.  THE EMPLOYER PAID HIS RENT AND PROVIDED HIM WITH A PER DIEM
EXPENSE ALLOWANCE FOR EACH DAY OF THE YEAR, INCLUDING WEEKENDS AND
HOLIDAYS, TO COVER "THE NECESSARY LIVING EXPENDITURES IN THE KOREAN
ECONOMY."   HE WORKED ON A "365 DAY PER YEAR BASIS  ...  SUBJECT TO
CALL TO THE JOB SITE AT ANY TIME."  HE "QUITE OFTEN" WORKED ON
SATURDAYS AND SUNDAYS AND AT OTHER TIMES OUTSIDE THE NORMAL WORK DAY. 
THE EMPLOYER CONSIDERED ALL ITS EMPLOYEES TO BE "IN THE COURSE OF
REGULAR OCCUPATION FROM THE TIME THEY LEAVE THE UNITED STATES UNTIL
THEIR RETURN."  THE EMPLOYER EXPECTED THE DECEDENT AND ITS OTHER
EMPLOYEES TO SEEK RECREATION AWAY FROM THE JOB SITE ON WEEKENDS AND
HOLIDAYS. 

BASED UPON THE ABOVE STIPULATED FACTS, THE DEPUTY COMMISSIONER OF THE
BUREAU OF EMPLOYEES' COMPENSATION, UNITED STATES DEPARTMENT OF LABOR,
PETITIONER HEREIN, DETERMINED "THAT THE ACCIDENT AND THE SUBSEQUENT
DEATH OF THE DECEDENT AROSE OUT OF AND IN THE COURSE OF EMPLOYMENT." 
222 F. SUPP. 4, 6.  HE THEREFORE AWARDED DEATH BENEFITS TO THE
DECEDENT'S WIDOW AND A MINOR CHILD IN ACCORDANCE WITH THE TERMS OF THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 44 STAT. 1414, AS
AMENDED, 33 U.S.C. SEC. 901 ET SEQ. (1958 ED.), AS EXTENDED BY THE
DEFENSE BASE ACT, 55 STAT. 622, AS AMENDED, 42 U.S.C. SEC. 1651 ET SEQ.
(1958 ED.).  THE EMPLOYER AND ITS INSURANCE CARRIER, RESPONDENTS
HEREIN, THEN BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA TO SET ASIDE AND ENJOIN THE
ENFORCEMENT OF THIS COMPENSATION AWARD.  THE DISTRICT COURT AFFIRMED
THE COMPENSATION AWARD AND GRANTED THE DEPUTY COMMISSIONER'S MOTION FOR
SUMMARY JUDGMENT.  222 F. SUPP. 4.  A PANEL OF THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT SUMMARILY REVERSED AND SET ASIDE THE AWARD.  327 F.2D
1003.  BUT COMPARE THE LATER DECISION OF ANOTHER PANEL OF THE FIFTH
CIRCUIT IN O'KEEFFE V. PAN AMERICAN WORLD AIRWAYS, INC., 338 F.2D 319. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE COURT OF APPEALS IS REVERSED.  SECTION 2(2) OF THE ACT, 33 U.S.C.
SEC. 902(2) (1958 ED.), PROVIDES WORKMEN'S COMPENSATION FOR ANY
"ACCIDENTAL INJURY OR DEATH ARISING OUT OF AND IN THE COURSE OF
EMPLOYMENT."  SECTION 19(A), 33 U.S.C. SEC. 919(A) (1958 ED.), PROVIDES
FOR THE FILING OF A "CLAIM FOR COMPENSATION" AND SPECIFIES THAT "THE
DEPUTY COMMISSIONER SHALL HAVE FULL POWER AND AUTHORITY TO HEAR AND
DETERMINE ALL QUESTIONS IN RESPECT OF SUCH CLAIM."  SECTION 20(A), 33
U.S.C. SEC. 920(A) (1958 ED.), PROVIDES THAT "IN ANY PROCEEDING FOR THE
ENFORCEMENT OF A CLAIM FOR COMPENSATION UNDER THIS CHAPTER IT SHALL BE
PRESUMED, IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY  ...
THAT THE CLAIM COMES WITHIN THE PROVISIONS OF THIS CHAPTER."  FINALLY,
SEC. 21(B), 33 U.S.C. SEC. 921(B) (1958 ED.), PROVIDES THAT THE DEPUTY
COMMISSIONER'S COMPENSATION ORDER MAY BE SUSPENDED AND SET ASIDE BY A
REVIEWING COURT ONLY "IF NOT IN ACCORDANCE WITH LAW." 

IN CASES DECIDED BOTH BEFORE AND AFTER THE PASSAGE OF THE
ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, AS AMENDED, 5 U.S.C. SEC.
1001 ET SEQ. (1958 ED.), THE COURT HAS HELD THAT THE FOREGOING
STATUTORY PROVISIONS LIMIT THE SCOPE OF JUDICIAL REVIEW OF THE DEPUTY
COMMISSIONER'S DETERMINATION THAT A "PARTICULAR INJURY AROSE OUT OF AND
IN THE COURSE OF EMPLOYMENT."  CARDILLO V. LIBERTY MUTUAL INS. CO., 330
U.S. 469, 477-478; O'LEARY V. BROWN-PACIFIC-MAXON, INC., 340 U.S. 504,
507-508. 

"IT MATTERS NOT THAT THE BASIC FACTS FROM WHICH THE DEPUTY
COMMISSIONER DRAWS THIS INFERENCE ARE UNDISPUTED RATHER THAN
CONTROVERTED  ...  .  IT IS LIKEWISE IMMATERIAL THAT THE FACTS PERMIT
THE DRAWING OF DIVERSE INFERENCES.  THE DEPUTY COMMISSIONER ALONE IS
CHARGED WITH THE DUTY OF INITIALLY SELECTING THE INFERENCE WHICH SEEMS
MOST REASONABLE AND HIS CHOICE, IF OTHERWISE SUSTAINABLE, MAY NOT BE
DISTURBED BY A REVIEWING COURT  ...  .  MOREOVER, THE FACT THAT THE
INFERENCE OF THE TYPE HERE MADE BY THE DEPUTY COMMISSIONER INVOLVES AN
APPLICATION OF A BROAD STATUTORY TERM OR PHRASE TO A SPECIFIC SET OF
FACTS GIVES RISE TO NO GREATER SCOPE OF JUDICIAL REVIEW  ...  ." 
CARDILLO V. LIBERTY MUTUAL INS. CO., SUPRA, AT 478. 

THE RULE OF JUDICIAL REVIEW HAS THEREFORE EMERGED THAT THE INFERENCES
DRAWN BY THE DEPUTY COMMISSIONER ARE TO BE ACCEPTED UNLESS THEY ARE
IRRATIONAL OR "UNSUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD ...
AS A WHOLE."  O'LEARY V. BROWN-PACIFIC-MAXON, INC., SUPRA, AT 508. 

THE BROWN-PACIFIC-MAXON CASE HELD THAT THE STANDARD BE APPLIED BY THE
DEPUTY COMMISSIONER DOES NOT REQUIRE "A CAUSAL RELATION BETWEEN THE
NATURE OF EMPLOYMENT OF THE INJURED PERSON AND THE ACCIDENT.  THOM V.
SINCLAIR, 1917 A.C. 127, 142.  NOR IS IT NECESSARY THAT THE EMPLOYEE BE
ENGAGED AT THE TIME OF THE INJURY IN ACTIVITY OF BENEFIT TO HIS
EMPLOYER.  ALL THAT IS REQUIRED IS THAT THE 'OBLIGATIONS OR CONDITIONS'
OF EMPLOYMENT CREATE THE 'ZONE OF SPECIAL DANGER' OUT OF WHICH THE
INJURY AROSE."  ID., AT 507.  AND, BORROWING FROM LANGUAGE IN MATTER OF
WATERS V. TAYLOR CO., 218 N.Y. 248, 252, 112 N.E. 727, 728, THE COURT
IN BROWN-PACIFIC-MAXON DREW THE LINE ONLY AT CASES WHERE AN EMPLOYEE
HAD BECOME "SO THOROUGHLY DISCONNECTED FROM THE SERVICE OF HIS EMPLOYER
THAT IT WOULD BE ENTIRELY UNREASONABLE TO SAY THAT INJURIES SUFFERED BY
HIM AROSE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT."   340 U.S., AT
507.  THIS STANDARD IS IN ACCORD WITH THE HUMANITARIAN NATURE OF THE
ACT AS EXEMPLIFIED BY THE STATUTORY COMMAND THAT "IN ANY PROCEEDING FOR
THE ENFORCEMENT OF A CLAIM FOR COMPENSATION UNDER THIS CHAPTER IT SHALL
BE PRESUMED, IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY
...  THAT THE CLAIM COMES WITHIN THE PROVISIONS OF THIS CHAPTER."  SEC.
20(A), 33 U.S.C. SEC. 920(A). 

IN THIS CASE, THE DEPUTY COMMISSIONER, APPLYING THE BROWN-PACIFIC
MAXON STANDARD TO THE UNDISPUTED FACTS, CONCLUDED "THAT THE ACCIDENT
AND THE SUBSEQUENT DEATH OF THE DECEDENT AROSE OUT OF AND IN THE COURSE
OF EMPLOYMENT."  222 F. SUPP. 4, 6.  THE DISTRICT COURT, LIKEWISE
APPLYING THE BROWN-PACIFIC-MAXON STANDARD, HELD "THAT THE DEPUTY
COMMISSIONER WAS CORRECT IN HIS FINDING THAT THE CONDITIONS OF THE
DECEASED'S EMPLOYMENT CREATED A ZONE WHERE THE DECEASED ECKER HAD TO
SEEK RECREATION UNDER EXACTING AND UNCONVENTIONAL CONDITIONS AND THAT
THEREFORE THE ACCIDENT AND DEATH OF THE DECEDENT AROSE OUT OF AND IN
THE COURSE OF EMPLOYMENT."  222 F. SUPP., AT 9. 

WE AGREE THAT THE DISTRICT COURT CORRECTLY AFFIRMED THE FINDING OF
THE DEPUTY COMMISSIONER.  WHILE THIS COURT MAY NOT HAVE REACHED THE
SAME CONCLUSION AS THE DEPUTY COMMISSIONER, IT CANNOT BE SAID THAT HIS
HOLDING THAT THE DECEDENT'S DEATH, IN A ZONE OF DANGER, AROSE OUT OF
AND IN THE COURSE OF HIS EMPLOYMENT IS IRRATIONAL OR WITHOUT
SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE.  THE DECENDENT WAS HIRED
TO WORK IN THE EXACTING AND UNCONVENTIONAL CONDITIONS OF KOREA.  HIS
TRANSPORTATION OVER AND BACK WAS TO BE AT THE EMPLOYER'S EXPENSE, AND
WHILE THERE HE WAS CONSIDERED TO BE WORKING ON A 365-DAY-PER-YEAR
BASIS, SUBJECT TO CALL AT THE JOB SITE AT ANY TIME, AND QUITE OFTEN HE
WORKED SATURDAYS AND SUNDAYS AND AT OTHER TIMES OUTSIDE THE WORKING
DAY.  THE EMPLOYER CONSIDERED DECEDENT AND ALL OTHER EMPLOYEES AT THIS
HAZARDOUS OVERSEAS BASE TO BE "IN THE COURSE OF REGULAR OCCUPATION FROM
THE TIME THEY LEAVE THE UNITED STATES UNTIL THEIR RETURN."  FINALLY,
THE EMPLOYER PROVIDED NEITHER HOUSING NOR RECREATIONAL ACTIVITIES FOR
ITS EMPLOYEES, BUT EXPECTED THEM TO LIVE, WHILE NECESSARILY IN THE
COUNTRY TO PERFORM ITS WORK, UNDER THE EXACTING AND DANGEROUS
CONDITIONS OF KOREA.  THE EMPLOYER PAID DECEDENT'S RENT AND PROVIDED
HIM WITH A PER DIEM EXPENSE ALLOWANCE FOR EACH DAY OF THE YEAR,
INCLUDING WEEKENDS AND HOLIDAYS, TO COVER THE NECESSARY LIVING EXPENSES
IN THE KOREAN ECONOMY.  THE ACCIDENT HERE OCCURRED ON AN OUTING FOR A
SHORT PERIOD OF TIME ON A LAKE LOCATED ONLY 30 MILES FROM THE
EMPLOYER'S JOB SITE.  IN THE WORDS OF THE DISTRICT COURT, "IT WAS
REASONABLE TO CONCLUDE THAT RECREATIONAL ACTIVITIES CONTRIBUTED TO A
HIGHER EFFICIENCY OF THE EMPLOYER'S WORK AND THAT WHEN CONDUCTED IN THE
RESTRICTED AREA OF EMPLOYMENT, ON A WORK DAY, SO TO SPEAK, AND IN A
MANNER NOT PROHIBITED BY THE EMPLOYER, SUCH ACTIVITY WAS AN INCIDENT OF
THE EMPLOYMENT."  222 F. SUPP. 4, 9. 

THE DISSENT, WHILE GIVING LIP SERVICE TO THE BROWN-PACIFIC-MAXON
STANDARDS, WOULD REVERSE THE DETERMINATION OF THE DEPUTY COMMISSIONER
AND DISTRICT COURT HERE, AS WELL AS THE DEPUTY COMMISSIONER AND THE
COURTS OF APPEALS IN OTHER CASES, THAT THE SEVERAL ACCIDENTS INVOLVED
WERE WITHIN THE "ZONE OF SPECIAL DANGER."  AS BROWN-PACIFIC-MAXON MADE
CLEAR, IT IS JUST THIS TYPE OF DETERMINATION WHICH THE STATUTE LEAVES
TO THE DEPUTY COMMISSIONER SUBJECT ONLY TO LIMITED JUDICIAL REVIEW. 
INDEED, THIS TYPE OF DETERMINATION, DEPENDING AS IT DOES ON AN ANALYSIS
OF THE MANY FACTORS INVOLVED IN THE AREA OF THE EMPLOYMENT, WOULD SEEM
TO BE ONE PECULIARLY FOR THE DEPUTY COMMISSIONER. 

THE DISTRICT COURT THEREFORE CORRECTLY UPHELD THE DETERMINATION OF
THE DEPUTY COMMISSIONER AND THE COURT OF APPEALS ERRED IN SUMMARILY
REVERSING ITS JUDGMENT.  CF. O'KEEFFE V. PAN AMERICAN AIRWAYS, INC.,
338 F.2D 319 (C.A. 5TH CIR. 1964); PAN AMERICAN WORLD AIRWAYS, INC. V.
O'HEANE, 335 F.2D 70 (C.A. 4TH CIR. 1964); SELF V. HANSON, 305 F.2D 699
(C.A. 9TH CIR. 1962); HASTORF-NETTLES, INC. V. PILLSBURY, 203 F.2D 641
(C.A. 9TH CIR. 1953). 

SINCE WE BELIEVE THAT THE DEPUTY COMMISSIONER AND DISTRICT COURT
PROPERLY APPLIED THE BROWN-PACIFIC-MAXON STANDARD, AND SINCE WE DEEM IT
NECESSARY TO PRESERVE THE INTEGRITY OF THE ADMINSTRATIVE PROCESS
ESTABLISHED BY CONGRESS TO EFFECTUATE THE STATUTORY SCHEME, THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

ECKER WAS EMPLOYED IN SEOUL, KOREA, AS AN ASSISTANT ADMINISTRATIVE
OFFICER FOR SMITH, HINCHMAN & GRYLLS ASSOCIATES, INC., AN ENGINEERING
MANAGEMENT CONCERN WORKING UNDER CONTRACTS WITH THE UNITED STATES AND
KOREAN GOVERNMENTS.  HIS DUTIES WERE RESTRICTED TO SEOUL WHERE HE WAS
RESPONSIBLE FOR PERSONNEL IN THE STENOGRAPHIC AND CLERICAL
DEPARTMENTS.  HE WAS SUBJECT TO CALL AT THE JOB SITE AT ANY TIME, BUT
THE USUAL WORK WEEK WAS 44 HOURS, AND EMPLOYEES WERE ACCUSTOMED TO
TRAVEL FAR FROM THE JOB SITE ON WEEKENDS AND HOLIDAYS FOR RECREATIONAL
PURPOSES.  ECKER DID NOT LIVE AT THE JOB SITE; HE WAS GIVEN AN
ALLOWANCE TO LIVE ON THE ECONOMY IN SEOUL.  ON HIS MEMORIAL DAY WEEKEND
HE WENT TO A LAKE 30 MILES EAST OF SEOUL WHERE A FRIEND OF HIS (NOT A
CO-EMPLOYEE) HAD A HOUSE.  ECKER INTENDED TO SPEND THE HOLIDAY THERE
WITH HIS FRIEND AND ANOTHER VISITOR.  THEIR SATURDAY AFTERNOON PROJECT
WAS TO FILL IN THE BEACH IN FRONT OF THE HOUSE WITH SAND, BUT NONE WAS
READILY AVAILABLE.  IN ORDER TO OBTAIN IT THE THREE CROSSED THE LAKE IN
A SMALL ALUMINUM BOAT TO A SANDY PART OF THE SHORE.  THERE THEY FILLED
THE BOAT WITH A LOAD OF SAND, INTENDING TO TRANSPORT IT BACK TO THE
HOUSE.  THE RETURN TRIP, HOWEVER, PUT ARCHIMEDES' PRINCIPLE TO THE
TEST; IN THE MIDDLE OF THE LAKE THE BOAT CAPSIZED AND SANK.  TWO OF THE
THREE MEN DROWNED, INCLUDING ECKER. 

THE LONGSHOREMEN'S AND HABOR WORKERS' COMPENSATION ACT, (FN1) AS
EXTENDED BY THE DEFENSE BASES ACT, (FN2) PROVIDES WORKMEN'S
COMPENSATION FOR ANY: 

"ACCIDENTAL INJURY OR DEATH ARISING OUR OF AND IN THE COURSE OF
EMPLOYMENT, AND SUCH OCCUPATIONAL DISEASE OR INFECTION AS ARISES
NATURALLY OUT OF SUCH EMPLOYMENT OR AS NATURALLY OR UNAVOIDABLY RESULTS
FROM SUCH ACCIDENTAL INJURY, AND INCLUDES AN INJURY CAUSED BY THE
WILLFUL ACT OF A THIRD PERSON DIRECTED AGAINST AN EMPLOYEE BECAUSE OF
HIS EMPLOYMENT."  33 U.S.C. SEC. 902(2). 

THE COURT HOLDS, PER CURIAM, THAT ECKER DIED IN THE COURSE OF HIS
EMPLOYMENT.  I SEE NO MEANINGFUL INTERPRETATION OF THE STATUTE WHICH
WILL SUPPORT THIS RESULT EXCEPT A RULE THAT ANY DECISION MADE BY A
DEPUTY COMMISSIONER MUST BE UPHELD (COMPARE ROGERS V. MISSOURI PAC. R.
CO., 352 U.S. 500).  THAT INTERPRETATION, ALTHOUGH MEANINGFUL, IS
UNSUPPORTABLE. 

O'LEARY V. BROWN-PACIFIC-MAXON, INC., 340 U.S. 504, RELIED UPON BY
THE COURT, DID NOT ESTABLISH SUCH A RULE.  THE COURT THERE UPHELD A
COMPENSATION AWARD ARISING FROM THE ACCIDENTAL DEATH OF AN EMPLOYEE OF
A GOVERNMENT CONTRACTOR ON THE ISLAND OF GUAM.  THE EMPLOYER MAINTAINED
FOR ITS EMPLOYEES A RECREATION CENTER NEAR THE SHORELINE ALONG WHICH
RAN A VERY DANGEROUS CHANNEL.  AFTER SPENDING THE AFTERNOON AT THE
EMPLOYER'S RECREATION CENTER, AND WHILE WAITING FOR THE EMPLOYER'S BUS,
THE EMPLOYEE HEARD CRIES FOR HELP FROM TWO MEN IN TROUBLE IN THE
CHANNEL.  HE DROWNED IN HIS ATTEMPT TO RESCUE THEM.  MR. JUSTICE
FRANKFURTER, WRITING FOR THE COURT, STATED THE STANDARD OF COVERAGE
AS:    "ALL THAT IS REQUIRED IS THAT THE 'OBLIGATIONS OR CONDITIONS' OF
EMPLOYMENT CREATE THE 'ZONE OF SPECIAL DANGER' OUT OF WHICH THE INJURY
AROSE."  340 U.S., AT 507. 

THAT LANGUAGE WAS INTENDED TO MEAN ONLY THAT WHERE THE EMPLOYER HAD
PLACED A FACILITY FOR EMPLOYEES IN AN ESPECIALLY DANGEROUS LOCATION AND
THUS HAD CREATED A DANGER OF ACCIDENTS, A "REASONABLE RESCUE ATTEMPT"
COULD BE "ONE OF THE RISKS OF THE EMPLOYMENT."  THIS WAS MADE CRYSTAL
CLEAR BY THE CAVEAT:  "WE HOLD ONLY THAT RESCUE ATTEMPTS SUCH AS THAT
BEFORE US ARE NOT NECESSARILY EXCLUDED FROM THE COVERAGE OF THE ACT AS
THE KIND OF CONDUCT THAT EMPLOYEES ENGAGE IN AS FROLICS OF THEIR OWN." 
IBID. 

HE WENT ON TO STATE THAT THE STANDARD OF REVIEW TO BE APPLIED TO THE
DEPUTY COMMISSIONER'S FINDING THAT THE EMPLOYEE DIED IN THE COURSE OF
HIS EMPLOYMENT WAS THE SAME AS THAT SET OUT IN UNIVERSAL CAMERA CORP.
V. LABOR BOARD, 340 U.S. 474, FOR REVIEW OF LABOR BOARD DECISIONS.  MR.
JUSTICE FRANKFURTER WROTE BOTH UNIVERSAL CAMERA AND BROWN-PACIFIC
MAXON, AND DELIVERED THE OPINIONS ON THE SAME DAY.  RELIANCE UPON
UNIVERSAL CAMERA IN BROWN-PACIFIC-MAXON SHOWS BEYOND DOUBT THAT THE
COURT WAS NOT ESTABLISHING A RULE THAT ANY COMPENSATION AWARD BY A
DEPUTY COMMISSIONER WOULD BE AUTOMATICALLY UPHELD, FOR IT WAS THE WHOLE
PURPOSE OF UNIVERSAL CAMERA TO EFFECTUATE CONGRESSIONAL INTENT THAT THE
COURTS EXPAND THEIR SCOPE OF REVIEW OVER ADMINISTRATIVE DECISIONS. 
THAT OPINION DEFINED JUDICIAL RESPONSIBILITY FOR EXAMINING THE WHOLE
RECORD IN LABOR BOARD CASES, AND NOT JUST THOSE PARTS OF THE RECORD
WHICH TENDED TO SUPPORT THE BOARD.  IT REMAINS TODAY AS THE LEADING
JUDICIAL GUIDE FOR ADMINISTRATIVE REVIEW, AND THE MOST PROMINENT
DIRECTIVE TO LOWER COURTS NOT TO UNDERESTIMATE THEIR RESPONSIBILITIES
IN THIS REGARD.  I THINK IT UNTENABLE TO READ A CASE WHICH PURPORTS TO
APPLY THE UNIVERSAL CAMERA STANDARD OF REVIEW AS EMBODYING A PHILOSOPHY
OF JUDICIAL ABDICATION. 

I READ BROWN-PACIFIC-MAXON TO MEAN THAT SOME QUESTIONS OF APPLICATION
OF "ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT" TO THE FACTS OF A
CASE WILL BE LEFT TO THE DISCRETION OF THE ADMINISTRATOR, AND REVIEW OF
HIS DECISION TREATED AS REVIEW OF A FINDING OF FACT.  THE CASES IN
WHICH THIS LIMITED REVIEW OF THE ADMINISTRATOR'S DECISION IS
APPROPRIATE ARE THOSE IN WHICH ONE APPLICATION OF THE STATUTE TO THE
EXTERNAL FACTS OF THE CASE EFFECTUATES THE JUDICIALLY RECOGNIZABLE
PURPOSE OF THE STATUTE AS WELL AS ANOTHER.  DOMINION OVER THE BOARD OR
CLEAR PURPOSES OF THE STATUTE THUS REMAINS FIRMLY IN THE COURTS' HANDS,
WHILE WITHIN THE CONFINES OF SUCH STATUTORY PURPOSES, ADMINISTRATORS
ARE LEFT DISCRETION TO PROVIDE THE INTIMATE PARTICULARIZATIONS OF
STATUTORY APPLICATION.  (FN3)  BROWN-PACIFIC-MAXON IS ILLUSTRATIVE. 
THE EMPLOYEE DROWNED IN A PARTICULARLY TREACHEROUS CHANNEL WITH WHICH
HIS JOB BROUGHT HIM INTO PROXIMITY.  THE DANGER WAS NOT GREAT THAT
CIRCUMSTANCE WOULD FORCE HIM TO SWIM IN THE CHANNEL, BUT THE DANGER
EXISTED AND WAS PECULIAR TO THE LOCALITY TO WHICH HIS JOB BROUGHT HIM;
AND IT WAS OUT OF THIS SPECIAL DANGER THAT THE EMPLOYEE'S INJURY
AROSE.  THIS, TAKEN TOGETHER WITH THE OTHER ELEMENTS OF JOB CONNECTION
WHICH THE ADMINISTRATOR THOUGHT RELEVANT, RENDERED AN AWARD IN THE CASE
CONSISTENT WITH THE BROAD PURPOSES OF THE COMPENSATION STATUTE.  YET
HAD THE DEPUTY COMMISSIONER COME OUT THE OTHER WAY, I THINK THAT HIS
DECISION WOULD HAVE BEEN EQUALLY SUPPORTABLE.  ALTHOUGH IT WAS TRUE
THAT THE INJURY WAS RELATED TO AN ESPECIALLY DANGEROUS CHANNEL WITH
WHICH THE EMPLOYEE'S JOB BROUGHT HIM INTO PROXIMITY, THE ADMINISTRATOR
COULD HAVE RULED THAT THE DANGER, ALTHOUGH SPECIAL, WAS SO REMOTE THAT
THE CONNECTION BETWEEN THE JOB AND THE INJURY WAS NOT SUFFICIENT TO
JUSTIFY COMPENSATION.  EITHER RESULT WOULD HAVE BEEN CONSISTENT WITH
THE STATUTORY PURPOSE OF COMPENSATING ALL JOB-CONNECTED INJURIES ON THE
ACTUAL JOB SITE AND, ADDITIONALLY, THOSE INJURIES OFF THE JOB SITE
WHICH RESULT FROM THE "SPECIAL" DANGERS OF THE EMPLOYMENT.  IN THE
SENSE THAT BOTH RESULTS WOULD HAVE BEEN SUPPORTABLE, THE REVIEW OF THE
CHOICE ACTUALLY MADE BY THE DEPUTY COMMISSIONER WAS TREATED AS REVIEW
OF A FINDING OF FACT. 

IN THE CASE BEFORE US, THE DEPUTY COMMISSIONER'S RULING IS NOT
CONSISTENT WITH THE STATUTORY PURPOSE.  THE INJURY DID NOT TAKE PLACE
ON THE ACTUAL JOB SITE, AND IT DID NOT ARISE OUT OF ANY SPECIAL DANGER
CREATED BY THE JOB.  IN NO SENSE CAN IT BE SAID THAT ECKER'S JOB
CREATED ANY "SPECIAL" DANGER OF HIS DROWNING IN A LAKE, OR MORE
PARTICULARLY, OF HIS LOADING A SMALL BOAT WITH SAND AND CAPSIZING IT.
NOTHING INDICATES THAT THE LAKE WAS ROUGHER, THE BOAT TIPPIER, OR THE
SAND HEAVIER THAN THEIR COUNTERPARTS IN THE UNITED STATES.  IF THERE
WERE "EXACTING AND UNCONVENTIONAL CONDITIONS" IN KOREA IT DOES NOT
APPEAR THAT THE LAKE, BOAT, OR SAND WAS ONE OF THEM.  THERE IS NOTHING
MORE THAN A "BUT FOR" RELATIONSHIP BETWEEN THE ACCIDENT AND THE
EMPLOYMENT.  TO PERMIT THE AWARD OF COMPENSATION TO STAND READS THE
"JOB-CONNECTED" EMPHASIS RIGHT OUT OF THE STATUTE, AN EMPHASIS WHICH IS
CLEARLY THERE.  ONLY INJURIES "ARISING OUT OF" THE EMPLOYMENT ARE
COMPENSATED.  A DISEASE OR INFECTION IS COVERED IF IT ARISES "NATURALLY
OUT OF SUCH EMPLOYMENT."  INJURIES WILLFULLY INFLICTED BY THIRD PERSONS
UPON AN EMPLOYEE ARE COVERED ONLY IF INFLICTED "BECAUSE OF HIS
EMPLOYMENT."  A "BUT FOR" RELATIONSHIP BETWEEN THE INJURY AND THE
EMPLOYMENT SHOULD NOT IN ITSELF BE SUFFICIENT TO BRING ABOUT COVERAGE. 

WHETHER THE INJURY IS COMPENSABLE SHOULD DEPEND TO SOME DEGREE ON THE
CAUSE OF THE INJURY AS WELL AS THE TIME OF DAY, LOCATION, AND MOMENTARY
ACTIVITY OF THE EMPLOYEE AT THE TIME OF THE ACCIDENT.  I WOULD
DISTINGUISH BETWEEN A CASE IN WHICH ECKER SMASHED HIS HAND IN A FILING
CABINET WHILE AT THE OFFICE AND ONE IN WHICH HE TRIPPED OVER A PEBBLE
WHILE OFF ON A WEEKEND HIKE.  IN THE FIRST CASE ECKER'S INJURY WOULD
HAVE ARISEN OUT OF AND IN THE COURSE OF HIS EMPLOYMENT, WHEREAS THE
STATUTE WOULD NOT APPLY TO THE SECOND CASE UNLESS THE INJURY WERE
TRACEABLE TO SOME SPECIAL DANGER PECULIAR TO THE EMPLOYMENT, WHICH WAS
CLEARLY NOT THE CASE.  THUS, IF WHILE OFF ON THAT SAME WEEKEND HIKE
ECKER STEPPED ON A MINE LEFT OVER FROM THE KOREAN CONFLICT, A DIFFERENT
RESULT COULD FOLLOW. 

THIS VIEW OF THE STATUTE MAKES FAR MORE SENSE TO ME THAN THE VIEW
ADOPTED BY THE COURT AS INDICATED BY THE RESULT IN THISE CASE AND ITS
APPROVING CITATION OF SUCH CASES AS SELF V. HANSON, 305 F.2D 699, AND
PAN AMERICAN WORLD AIRWAYS, INC. V. O'HEARNE, 335 F.2D 70, CERT. DENIED
TODAY.  IT IS DIFFICULT TO DETERMINE JUST WHAT SUCH CASES STAND FOR. 
IN SELF V. HANSON, FOR INSTANCE, MISS WILLIAMS WAS IN THE COMPANY OF A
GENTLEMAN IN A PICK-UP TRUCK PARKED AT THE END OF A BREAKWATER ON GUAM
ISLAND AT 11 O'CLOCK IN THE EVENING.  THE GENTLEMAN SAID THAT HE WANTED
TO SHOW HER A SHIP IN THE HARBOR.  APPARENTLY THEY HAD BEEN LOOKING AT
IT FOR OVER HALF AN HOUR WHEN THE DRIVER OF ANOTHER VEHICLE ON THE
BREAKWATER LOST CONTROL AND RAN INTO THE PICK-UP TRUCK, CAUSING MISS
WILLIAMS SPINAL INJURIES.  THE NINTH CIRCUIT UPHELD THE DEPUTY
COMMISSIONER'S RULING THAT SHE WAS INJURED IN THE COURSE OF HER
EMPLOYMENT AS A SECRETARY ON A GUAM DEFENSE PROJECT. 

TO PERMIT COMPENSATION FOR SUCH INJURIES IS TO IMPOSE ABSOLUTE
LIABILITY UPON THE EMPLOYER FOR ANY AND ALL INJURIES, WHATEVER THEIR
NATURE, WHATEVER THEIR CAUSE, JUST SO LONG AS THE DEPUTY COMMISSIONER
MAKES AN AWARD AND THE JOB LOCATION IS ONE TO WHICH THE REVIEWING JUDGE
WOULD NOT CHOOSE TO GO IF HE HAD HIS CHOICE OF VACATION SPOTS.  BEFORE
SETTING ITS STAMP OF APPROVAL ON SUCH AN INTERPRETATION OF THE STATUTE,
THE COURT AT THE VERY LEAST SHOULD HEAR ARGUMENT AND RECEIVE BRIEFS ON
THE MERITS.  THE SOLICITOR GENERAL HAS POINTED OUT THAT "THERE ARE
SEVERAL THOUSANDS OF INJURY CASES REPORTED ANNUALLY" UNDER THIS ACT. 
(FN4)  HE URGED THAT THIS QUESTION BE DEFINITIVELY RESOLVED BY THIS
COURT.  BECAUSE OF THE IMPORTANCE PLACED BY ALL PARTIES UPON RESOLUTION
OF THE PROPER APPLICATION OF THE ACT TO THESE CASES, AND BECAUSE I DO
NOT BELIEVE BROWN-PACIFIC-MAXON, SUPRA, DICTATES THE COURT'S RESULT, I
RESPECTFULLY DISSENT FROM ITS DECISION TO TREAT O'KEEFFE V. SMITH,
HINCHMAN & GRYLLS ASSOCIATES, INC., SUMMARILY, FROM ITS DECISION ON THE
MERITS IN THAT CASE, AND FROM ITS DENIAL OF CERTIORARI IN PAN-AMERICAN
WORLD AIRWAYS, INC. V. O'HEARNE, NO. 474, AND PAN AMERICAN WORLD
AIRWAYS, INC. V. O'KEEFFE, NO. 852. 

MR. JUSTICE DOUGLAS, DUBITANTE. 

THE PROBLEMS UNDER THIS ACT SHOULD REST MAINLY WITH THE COURTS OF
APPEALS.*  WHAT WE SAID IN UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340
U.S. 474, 490, OF REVIEW BY COURTS OF APPEALS OF DECISIONS OF THE
NATIONAL LABOR RELATIONS BOARD, SHOULD BE APPLICABLE HERE: 

"REVIEWING COURTS MUST BE INFLUENCED BY A FEELING THAT THEY ARE NOT
TO ABDICATE THE CONVENTIONAL JUDICIAL FUNCTION.  CONGRESS HAS IMPOSED
ON THEM RESPONSIBILITY FOR ASSURING THAT THE BOARD KEEPS WITHIN
REASONABLE GROUNDS.  THAT RESPONSIBILITY IS NOT LESS REAL BECAUSE IT IS
LIMITED TO ENFORCING THE REQUIREMENT THAT EVIDENCE APPEAR SUBSTANTIAL
WHEN VIEWED, ON THE RECORD AS A WHOLE, BY COURTS INVESTED WITH THE
AUTHORITY AND ENJOYING THE PRESTIGE OF THE COURTS OF APPEALS.  THE
BOARD'S FINDINGS ARE ENTITLED TO RESPECT; BUT THEY MUST NONETHELESS BE
SET ASIDE WHEN THE RECORD BEFORE A COURT OF APPEALS CLEARLY PRECLUDES
THE BOARD'S DECISION FROM BEING JUSTIFIED BY A FAIR ESTIMATE OF THE
WORTH OF THE TESTIMONY OF WITNESSES OR ITS INFORMED JUDGMENT ON MATTERS
WITHIN ITS SPECIAL COMPETENCE OR BOTH." 

*THESE PROBLEMS ARE UNLIKE THOSE UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT WHERE SUITS CAN BE BROUGHT BOTH IN STATE AND IN FEDERAL
COURTS (45 U.S.C. SEC. 56) AND WHERE THE LAW, POORLY RECEIVED BY THE
JUDICIARY, HAS BEEN SEVERELY ERODED.  SEE WILKERSON V. MCCARTHY, 336
U.S. 53, 68 EG SEQ. (CONCURRING OPINION). 

APPLYING THAT TEST I WOULD NOT BE INCLINED TO REVERSE A COURT OF
APPEALS THAT DISAGREED WITH A DEPUTY COMMISSIONER OVER FINDINGS AS
EXOTIC AS WE HAVE HERE. 

FN1  44 STAT. 1424, AS AMENDED, 33 U.S.C. SEC. 901 ET SEQ. (1958
ED.). 

FN2  55 STAT. 622, AS AMENDED, 42 U.S.C. SEC. 1651 ET SEQ. (1958
ED.). 

FN3  SEE GENERALLY, JAFFE, JUDICIAL REVIEW:  QUESTION OF LAW, 69
HARV. L. REV. 239 (1955). 

FN4  PETITION FOR CERTIORARI IN NO. 307, P. 11. 
..END :





















CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. V. UNITED STATES 380 U.S.
373 


NO. 770.  DECIDED MARCH 29, 1965 - 233 F. SUPP. 381, AFFIRMED. 


CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. ET AL. V. UNITED STATES ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :
















RADIO & TELEVISION BROADCAST TECHNICIANS LOCAL UNION 1264, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO V. BROADCAST SERVICE OF
MOBILE, INC. 380 U.S. 255 


NO. 61.  ARGUED MARCH 2-3, 1965.  - DECIDED MARCH 15, 1965.  - 276 ALA.
93, 159 SO. 2D 452, REVERSED. 


THE NATIONAL LABOR RELATIONS BOARD DECLINES JURISDICTION OVER RADIO
STATIONS WITH YEARLY GROSS RECEIPTS BELOW $100,000, BUT TAKES
JURISDICTION WHERE SEVERAL NOMINALLY SEPARATE ENTITIES COMPRISE AN
INTEGRATED ENTERPRISE OF A SINGLE EMPLOYER HAVING RECEIPTS IN EXCESS OF
THAT FIGURE.  WHERE, AS HERE, THE CRITERIA OF INTERRELATION OF
OPERATIONS, COMMON MANAGEMENT AND OWNERSHIP, AND CENTRALIZED CONTROL OF
LABOR RELATIONS ARE MET, THE BOARD WILL ASSERT JURISDICTION, AND STATE
JURISDICTION MUST YIELD. 

RADIO & TELEVISION BROADCAST TECHNICIANS LOCAL UNION 1264, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, ET AL. V. BROADCAST SERVICE
OF MOBILE, INC. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE UNION, RADIO AND TELEVISION BROADCAST TECHNICIANS, CHALLENGED THE
ALABAMA CIRCUIT COURT'S JURISDICTION OVER A SUIT BY BROADCAST SERVICE
OF MOBILE, THE CORPORATE NAME OF RADIO STATION WSIM, TO RESTRAIN
PEACEFUL PICKETING BY THE UNION AND ITS SOLICITATION OF ADVERTISERS
AIMED AT PERSUADING THEM TO CEASE DOING BUSINESS WITH THE STATION.  IT
CONTENDED THAT ALTHOUGH THE ANNUAL GROSS RECEIPTS OF WSIM ARE BELOW THE
NATIONAL LABOR RELATIONS BOARD'S JURISDICTIONAL MINIMUM OF $100,000 PER
YEAR FOR RADIO STATIONS, WSIM IS AN INTEGRAL PART OF A GROUP OF RADIO
STATIONS OWNED AND OPERATED BY CHARLES W. HOLT AND THE HOLT
BROADCASTING SERVICE AND THAT THE ANNUAL RECEIPTS OF THE COMMON
ENTERPRISE ARE IN EXCESS OF $100,000, WHICH IS DETERMINATIVE UNDER THE
BOARD'S STANDARDS.  STATING THAT EVERY COURT HAS JUDICIAL POWER TO
DETERMINE ITS JURISDICTION AND THAT THE UNION FAILED TO ALLEGE "THAT
THE APPELLANT'S (WSIM'S) GROSS BUSINESS EXCEEDED $100,000 PER ANNUM,"
THE ALABAMA SUPREME COURT HELD THAT THE STATE COURTS HAD JURISDICTION
OVER WSIM'S COMPLAINT.  WE GRANTED CERTIORARI.  379 U.S. 812.  THE
JUDGMENT BELOW MUST BE REVERSED. 

ALTHOUGH A STATE COURT MAY ASSUME JURISDICTION OVER LABOR DISPUTES
OVER WHICH THE NATIONAL LABOR RELATIONS BOARD HAS, BUT DECLINES TO
ASSERT, JURISDICTION, 29 U.S.C. SECS. 164(C)(1) AND (2) (1958 ED.,
SUPP. V), THERE MUST BE A PROPER DETERMINATION OF WHETHER THE CASE IS
ACTUALLY ONE OF THOSE WHICH THE BOARD WILL DECLINE TO HEAR. 
HATTIESBURG BUILDING TRADES COUNCIL V. BROOME, 377 U.S. 126.   THE
BOARD WILL ASSERT JURISDICTION OVER AN EMPLOYER OPERATING A RADIO
STATION IF HIS GROSS RECEIPTS EQUAL OR EXCEED $100,000 PER YEAR,
RARITAN VALLEY BROADCASTING CO., 122 N.L.R.B. 90, AND IN DETERMINING
THE RELEVANT EMPLOYER, THE BOARD CONSIDERS SEVERAL NOMINALLY SEPARATE
BUSINESS ENTITIES TO BE A SINGLE EMPLOYER WHERE THEY COMPRISE AN
INTEGRATED ENTERPRISE, N.L.R.B. TWENTY-FIRST ANN. REP. 14-15 (1956). 
THE CONTROLLING CRITERIA, SET OUT AND ELABORATED IN BOARD DECISIONS,
ARE INTERRELATION OF OPERATIONS, COMMON MANAGEMENT, CENTRALIZED CONTROL
OF LABOR RELATIONS AND COMMON OWNERSHIP.  SAKRETE OF NORTHERN
CALIFORNIA, INC., 137 N.L.R.B. 1220, AFF'D 332 F.2D 902 (C.A. 9TH
CIR.), CERT. DENIED, 379 U.S. 961; FAMILY LAUNDRY, INC., 121 N.L.R.B.
1619; CANTON, CARP'S, INC., 125 N.L.R.B. 483; V.I.P. RADIO, INC., 128
N.L.R.B. 113; PERFECT T.V., INC., 134 N.L.R.B. 575; OVERTON MARKETS,
INC., 142 N.L.R.B.  615.  THE RECORD MADE BELOW IS MORE THAN ADEQUATE
TO SHOW THAT ALL OF THESE FACTORS ARE PRESENT IN REGARD TO THE HOLT
ENTERPRISE* AND THAT THIS IS NOT A CASE WHICH THE BOARD HAS ANNOUNCED
IT WOULD DECLINE TO HEAR.  SINCE THE CONDUCT SET OUT IN THE COMPLAINT
IS REGULATED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, 29 U.S.C.
SEC. 141 ET SEQ. (1958 ED.), "DUE REGARD FOR THE FEDERAL ENACTMENT
REQUIRES THAT STATE JURISDICTION MUST YIELD."  SAN DIEGO BUILDING
TRADES V. GARMON, 359 U.S. 236, 244; CONSTRUCTION & GENERAL LABORERS'
UNION V. CURRY, 371 U.S. 542.  REVERSED. 

*THE UNITED STATES, AS AMICUS CURIAE, CONFIRMS THE VIEW THAT THE
BOARD'S STANDARDS FOR DETERMINING A SINGLE EMPLOYER ENTERPRISE WERE
FULLY SATISFIED BY THE STRUCTURE AND OPERATION OF THE HOLT STATIONS. 
..END :





















RESERVE LIFE INSURANCE CO. V. BOWERS, TAX COMMISSIONER OF OHIO 380 U.S.
258 


NO. 96.  ARGUED MARCH 4, 1965.  - DECIDED MARCH 15, 1965.  - 175 OHIO
ST. 468, 196 N.E.2D 87, REVERSED AND CASE REMANDED. 


RESERVE LIFE INSURANCE CO. V. BOWERS, TAX COMMISSIONER OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE COURT OF
APPEALS, FIRST APPELLATE DISTRICT, OHIO.  WHEELING STEEL CORP. V.
GLANDER, 337 U.S. 562. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE STEWART TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :











TRANS-LUX DISTRIBUTING CORP. V. BOARD OF REGENTS OF THE UNIVERSITY OF
NEW YORK 380 U.S. 259 


NO. 314.  DECIDED MARCH 15, 1965.  - 14 N.Y.2D 88, 198 N.E.2D 242,
REVERSED. 


TRANS-LUX DISTRIBUTING CORP. V. BOARD OF REGENTS OF THE UNIVERSITY OF
NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  FREEDMAN V. MARYLAND, ANTE, P. 51. 
..END :
















SANTOS V. TEXAS 380 U.S. 259 


NO. 340, MISC.  DECIDED MARCH 15, 1965.  - CERTIORARI GRANTED, JUDGMENT
VACATED AND CASE REMANDED.  - REPORTED BELOW:  379 S.W.2D 667. 


SANTOS V. TEXAS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF TEXAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF CRIMINAL APPEALS OF TEXAS FOR FURTHER
CONSIDERATION IN LIGHT OF THE OPINION OF THIS COURT IN AGUILAR V.
TEXAS, 378 U.S. 108. 
..END :













BAKER, DBA BAKER & FORD V. ALASKA 380 U.S. 260 


NO. 849.  DECIDED MARCH 15, 1965.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  64 WASH. 2D 207, 390
P.2D 1009. 


BAKER ET AL., DBA BAKER & FORD V. ALASKA. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :















MARTINEZ V. UNITED STATES 380 U.S. 260 


NO. 397, MISC.  DECIDED MARCH 15, 1965.  - CERTIORARI GRANTED, JUDGMENT
VACATED AND CASE REMANDED.  - REPORTED BELOW:  333 F.2D 405. 


MARTINEZ V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA WITH INSTRUCTIONS TO MAKE FINDINGS WITH RESPECT
TO PETITIONER'S CONSENT TO THE SEARCH. 
..END :













HARRISON V. MCNAMARA, SECRETARY OF DEFENSE 380 U.S. 261 


NO. 527, MISC.  DECIDED MARCH 15, 1965.  - 228 F. SUPP. 406, AFFIRMED. 


HARRISON V. MCNAMARA, SECRETARY OF DEFENSE, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















GENOVESE V. OHIO 380 U.S. 261 


NO. 794, MISC.  DECIDED MARCH 15, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


GENOVESE V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MARVEL V. UNITED STATES 380 U.S. 262 


NO. 476, MISC.  DECIDED MARCH 15, 1965.  - CERTIORARI GRANTED, JUDGMENT
VACATED AND CASE REMANDED.  - REPORTED BELOW:  335 F.2D 101. 


MARVEL V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF ALABAMA FOR A HEARING AS TO WHETHER PETITIONER WAS MISLED
BY THE TRIAL JUDGE AS TO THE MAXIMUM SENTENCE. 
..END :













UNITED STATES V. MISSISSIPPI 380 U.S. 128 


NO. 73.  ARGUED JANUARY 26, 1965.  - DECIDED MARCH 8, 1965.  - 229 F.
SUPP. 925, REVERSED AND REMANDED. 


CHARGING THAT APPELLEES, THE STATE OF MISSISSIPPI, THE ELECTION
COMMISSIONERS, AND SIX VOTING REGISTRARS OF THAT STATE WERE DESTROYING
THE RIGHT OF MISSISSIPPI NEGROES TO VOTE, THE UNITED STATES BROUGHT
THIS ACTION FOR RELIEF UNDER 42 U.S.C. SEC 1971(D) AND OTHER
PROVISIONS.  THE COMPLAINT ALLEGED A LONG-STANDING, CAREFULLY EXECUTED
PLAN TO KEEP NEGROES IN MISSISSIPPI FROM VOTING.  IT STATED THAT IN
1890, IN ORDER TO RESTRICT THE NEGRO FRANCHISE, A NEW CONSTITUTION WAS
ADOPTED, SEC 244 OF WHICH ESTABLISHED AS A VOTING PREREQUISITE READING,
UNDERSTANDING, OR GIVING A REASONABLE INTERPRETATION OF A SECTION OF
THE STATE CONSTITUTION; THAT THIS PROVISION, WHEN COUPLED WITH NEGRO
INELIGIBILITY UNTIL ABOUT 1952 TO VOTE IN THE DECISIVE DEMOCRATIC
PRIMARY ELECTION, WITHIN NINE YEARS REDUCED THE PERCENTAGE OF QUALIFIED
VOTERS WHO WERE NEGROES FROM OVER 50% TO ABOUT 9% AND BY 1954 ONLY
ABOUT 5% OF NEGROES OF VOTING AGE WERE REGISTERED; THAT IN 1954, SEC
244 WAS AMENDED TO MAKE ALL OF ITS PREVIOUSLY ALTERNATIVE REQUIREMENTS
APPLY AND TO MAKE AN APPLICANT ADDITIONALLY DEMONSTRATE "A REASONABLE
UNDERSTANDING OF THE DUTIES AND OBLIGATIONS OF CITIZENSHIP," A
REQUIREMENT WHICH REGISTRARS ALLEGEDLY HAVE APPLIED IN A RACIALLY
DISCRIMINATORY MANNER; THAT IN 1960 TWO DISCRIMINATORY VOTING STATUTES
WERE ADOPTED, ONE IMPOSING A "GOOD MORAL CHARACTER" QUALIFICATION, AND
THE OTHER (CONTRARY TO FEDERAL LAW) PERMITTING DESTRUCTION OF SOME
VOTING RECORDS; AND THAT IN 1962 A "PACKAGE" OF LEGISLATION WAS ENACTED
FURTHER TO IMPEDE NEGRO VOTING REGISTRATION.  THE DISTRICT COURT
DISMISSED THE COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF
COULD BE GRANTED, HELD THAT THE ELECTION COMMISSIONERS WERE NOT PROPER
PARTIES, THAT THE REGISTRARS COULD NOT BE SUED JOINTLY, AND THAT VENUE
WAS IMPROPER AS TO SOME.  HELD: 

1.  SECTION 1971(A) OF TITLE 42 U.S.C. GUARANTEES THE RIGHT OF
CITIZENS "WHO ARE OTHERWISE QUALIFIED BY LAW" TO VOTE AT ANY ELECTION
WITHOUT RACIAL DISTINCTION, AND SUBSECTION (C) AUTHORIZES THE ATTORNEY
GENERAL TO SUE FOR PREVENTIVE RELIEF TO PROTECT THAT RIGHT REGARDLESS
OF WHETHER IT IS THREATENED BY INVALID LAWS OR VALID LAWS
DISCRIMINATORILY APPLIED.  PP.  136-138. 

2.  SECTION 1971(C) AUTHORIZES THE ATTORNEY GENERAL TO MAKE THE STATE
A DEFENDANT WHETHER OR NOT THE OFFICE OF REGISTRAR IS VACANT.  PP. 138
141. 

3.  SINCE UNDER STATE LAW THE ELECTION COMMISSIONERS HAVE THE DUTY TO
HELP ADMINISTER THE VOTER REGISTRATION LAWS BY FORMULATING RULES FOR
TESTS APPLIED TO APPLICANTS, THE COMMISSIONERS WERE PROPERLY NAMED AS
DEFENDANTS.  PP. 141-142. 

4.  THE REGISTRARS, WHO WERE CHARGED WITH TAKING PART IN A STATEWIDE
SCHEME TO KEEP NEGROES FROM VOTING FOR RACIAL REASONS, WERE PROPERLY
JOINED AS DEFENDANTS IN ONE SUIT, RULE 20(A) OF THE FEDERAL RULES OF
CIVIL PROCEDURE PROVIDING FOR JOINDER WHERE THERE IS ASSERTED A RIGHT
TO RELIEF ARISING OUT OF THE SAME TRANSACTION OR SERIES OF TRANSACTIONS
AND WHERE ANY QUESTION OF LAW OR FACT COMMON TO ALL WILL ARISE IN THE
ACTION; AND THEREFORE THE VENUE AS TO THOSE OUTSIDE THE DISTRICT AND
DIVISION WHERE THE DISTRICT COURT SAT WAS PROPERLY LAID UNDER 28 U.S.C.
SEC 1392(A) AND 1393(B).  PP. 142-143. 

5.  THE COMPLAINT CHARGING THAT THE STATE OF MISSISSIPPI AND ITS
OFFICIALS FOR OVER THREE QUARTERS OF A CENTURY HAD ENACTED AND ENFORCED
CONSTITUTIONAL PROVISIONS, STATUTES, RULES AND REGULATIONS, AND ENGAGED
IN DISCRIMINATORY PRACTICES, TO KEEP THE NUMBER OF WHITE VOTERS AS HIGH
AND THE NUMBER OF NEGRO VOTERS AS LOW AS POSSIBLE, STATED A CAUSE OF
ACTION AND IT WAS ERROR TO DISMISS THE COMPLAINT WITHOUT TRIAL.  PP.
143-144. 

UNITED STATES V. MISSISSIPPI ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BY THE ATTORNEY GENERAL BROUGHT THIS ACTION IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI,
JACKSON DIVISION, AGAINST THE STATE OF MISSISSIPPI, THE THREE MEMBERS
OF THE MISSISSIPPI STATE BOARD OF ELECTION COMMISSIONERS, AND SIX
COUNTY REGISTRARS OF VOTERS.  THE COMPLAINT CHARGED THAT THE DEFENDANTS
AND THEIR AGENTS HAD ENGAGED AND, UNLESS RESTRAINED, WOULD CONTINUE TO
ENGAGE IN ACTS AND PRACTICES HAMPERING AND DESTROYING THE RIGHT OF
NEGRO CITIZENS OF MISSISSIPPI TO VOTE, IN VIOLATION OF 42 U.S.C. SEC
1971(A) (1958 ED.), AND OF THE FOURTEENTH (FN1) AND FIFTEENTH (FN2)
AMENDMENTS AND ARTICLE I OF THE UNITED STATES CONSTITUTION. 
JURISDICTION OF THE COURT WAS INVOKED UNDER 42 U.S.C. SEC 1971(D) (1958
ED.)  AND 28 U.S.C. SEC 1345 (1958 ED.), AND BECAUSE THE COMPLAINT
CHARGED THAT PROVISIONS OF THE STATE CONSTITUTION AND STATUTES
PERTAINING TO VOTER REGISTRATION VIOLATED THE UNITED STATES
CONSTITUTION, THE CASE WAS HEARD BY THREE JUDGES, PURSUANT TO 28 U.S.C.
SEC 2281 (1958 ED.).  ALL THE DEFENDANTS MOVED TO DISMISS ON THE GROUND
THAT THE COMPLAINT FAILED TO STATE A CLAIM ON WHICH RELIEF COULD BE
GRANTED.  IN ADDITION THE STATE MOVED SEPARATELY TO DISMISS ON THE
GROUND THAT THE UNITED STATES HAD NO POWER TO MAKE IT A DEFENDANT IN
SUCH A SUIT, AND THE THREE ELECTION COMMISSIONERS ANSWERED THAT THE
COMPLAINT FAILED TO SHOW THAT THEY HAD ENFORCED OR THAT THEY HAD A DUTY
TO ENFORCE THE PROVISIONS OF STATE LAW ALLEGED TO BE UNCONSTITUTIONAL. 
FIVE OF THE REGISTRARS MOVED FOR A SEVERANCE AND SEPARATE TRIALS, AND
THE FOUR WHO WERE NOT RESIDENTS OF THE SOUTHERN DISTRICT OF
MISSISSIPPI, JACKSON DIVISION, MOVED FOR CHANGES OF VENUE TO THE
RESPECTIVE DISTRICTS AND DIVISIONS WHERE THEY LIVED.  THE DISTRICT
COURT IN AN OPINION BY THE LATE CIRCUIT JUDGE CAMERON, IN WHICH
DISTRICT JUDGE COX JOINED, (FN3) DISMISSED THE COMPLAINT ON ALL THE
GROUNDS WHICH THE DEFENDANTS HAD ASSIGNED AND ALSO RULED THAT THE
REGISTRARS COULD NOT BE SUED JOINTLY AND THAT VENUE WAS IMPROPER AS TO
THE REGISTRARS WHO DID NOT LIVE IN THE DISTRICT AND DIVISION IN WHICH
THE COURT WAS SITTING.  229 F. SUPP.  925.  CIRCUIT JUDGE BROWN
DISSENTED.  WE NOTED PROBABLE JURISDICTION, 377 U.S. 988, AND SET THE
CASE DOWN FOR ARGUMENT IMMEDIATELY PRECEDING LOUISIANA V. UNITED
STATES, POST, P. 145. 

THE BASIC ISSUE BEFORE US IN THIS CASE IS WHETHER THE DISMISSAL FOR
FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED WAS
PROPER.  THE UNITED STATES ALLEGES THAT IN 1890 A MAJORITY OF THE
QUALIFIED VOTERS IN MISSISSIPPI WERE NEGROES, BUT THAT IN THAT YEAR A
CONSTITUTIONAL CONVENTION ADOPTED A NEW STATE CONSTITUTION, ONE OF THE
CHIEF PURPOSES OF WHICH WAS, IN THE WORDS OF THE COMPLAINT, TO
"RESTRICT THE NEGRO FRANCHISE AND TO ESTABLISH AND PERPETUATE WHITE
POLITICAL SUPREMACY AND RACIAL SEGREGATION IN MISSISSIPPI."  SECTION
244 OF THAT CONSTITUTION ESTABLISHED A NEW PREREQUISITE FOR VOTING:
THAT A PERSON OTHERWISE QUALIFIED BE ABLE TO READ ANY SECTION OF THE
MISSISSIPPI CONSTITUTION, OR UNDERSTAND THE SAME WHEN READ TO HIM, OR
GIVE A REASONABLE INTERPRETATION THEREOF.  (FN4)  THIS NEW REQUIREMENT,
COUPLED WITH THE FACT THAT UNTIL ABOUT 1952 NEGROES WERE NOT ELIGIBLE
TO VOTE IN THE PRIMARY ELECTION OF THE DEMOCRATIC PARTY, VICTORY IN
WHICH WAS "TANTAMOUNT TO ELECTION," WORKED SO WELL IN KEEPING NEGROES
FROM VOTING, THE COMPLAINT CHARGES, THAT BY 1899 THE PERCENTAGE OF
QUALIFIED VOTERS IN THE STATE WHO WERE NEGROES HAD DECLINED FROM OVER
50% TO ABOUT 9%, AND BY 1954 ONLY ABOUT 5% OF THE NEGROES OF VOTING AGE
IN MISSISSIPPI WERE REGISTERED. 

BY THE 1950'S A MUCH HIGHER PROPORTION OF NEGROES OF VOTING AGE IN
MISSISSIPPI WAS LITERATE THAN HAD BEEN THE CASE IN 1890, AND SINCE A
DECISION OF THE FIFTH CIRCUIT IN 1951 (FN5) HAD POINTED OUT THAT THE
1890 REQUIREMENT ALLOWED PERSONS TO VOTE IF THEY MET ANY ONE OF THE
THREE ALTERNATIVE REQUIREMENTS, THE STATE TOOK STEPS TO MULTIPLY THE
BARRIERS KEEPING ITS NEGRO CITIZENS FROM VOTING.  IN 1954 THE STATE
CONSTITUTION WAS AMENDED TO PROVIDE THAT THEREAFTER AN APPLICANT FOR
REGISTRATION HAD TO BE ABLE TO READ AND COPY IN WRITING ANY SECTION OF
THE MISSISSIPPI CONSTITUTION, AND GIVE A REASONABLE INTERPRETATION OF
THAT SECTION TO THE COUNTY REGISTRAR, AND, IN ADDITION, DEMONSTRATE TO
THE REGISTRAR "A REASONABLE UNDERSTANDING OF THE DUTIES AND OBLIGATIONS
OF CITIZENSHIP UNDER A CONSTITUTIONAL FORM OF GOVERNMENT."  (FN6)  THE
COMPLAINT CHARGES THAT THESE PROVISIONS LEND THEMSELVES TO MISUSE AND
TO DISCRIMINATORY ADMINISTRATION BECAUSE THEY LEAVE THE REGISTRARS
COMPLETELY AT LARGE, FREE TO BE AS DEMANDING OR AS LENIENT AS THEY
CHOOSE IN JUDGING AN APPLICANT'S UNDERSTANDING OF THE STATE
CONSTITUTION AND OF THE "DUTIES AND OBLIGATIONS OF CITIZENSHIP," AND
THAT SINCE THE ADOPTION OF THIS AMENDMENT THE REGISTRARS HAVE IN FACT
APPLIED STANDARDS WHICH VARIED IN DIFFICULTY ACCORDING TO WHETHER AN
APPLICANT WAS WHITE OR COLORED. 

IN 1960 THE STATE CONSTITUTION WAS AMENDED TO ADD A NEW VOTING
QUALIFICATION OF "GOOD MORAL CHARACTER," (FN7) AN ADDITION WHICH IT IS
CHARGED WAS TO SERVE AS YET ANOTHER DEVICE TO GIVE A REGISTRAR POWER TO
PERMIT AN APPLICANT TO VOTE OR NOT, DEPENDING SOLELY ON THE REGISTRAR'S
OWN WHIM OR CAPRICE, UNGOVERNED BY ANY LEGAL STANDARD.  A STATUTE ALSO
PASSED IN 1960 (FN8) REPEALED A PRIOR MISSISSIPPI STATUTE WHICH HAD
PROVIDED THAT APPLICATION FORMS BE RETAINED AS PERMANENT PUBLIC
RECORDS, AND ADOPTED A NEW RULE THAT UNLESS APPEAL IS TAKEN FROM AN
ADVERSE RULING AND NO NEW APPLICATION IS MADE PRIOR TO FINAL JUDGMENT
ON THAT APPEAL, REGISTRARS NO LONGER NEED KEEP ANY RECORD MADE IN
CONNECTION WITH THE APPLICATION OF ANYONE TO REGISTER TO VOTE.  THIS
LAW IS ALLEGED TO BE IN DIRECT VIOLATION OF TITLE III OF THE CIVIL
RIGHTS ACT OF 1960, WHICH REQUIRES THAT RECORDS OF VOTING REGISTRATION
BE KEPT.  (FN9)  THE COMPLAINT ALLEGED FURTHER THAT THE DEFENDANTS HAD
DESTROYED AND UNLESS RESTRAINED BY THE COURT WOULD CONTINUE TO DESTROY
THESE RECORDS.  FINALLY, IT WAS ALLEGED THAT IN 1962 THE MISSISSIPPI
LEGISLATURE ADOPTED A PACKAGE OF LEGISLATION (FN10) AFFECTING
REGISTRATION, THE PURPOSE AND EFFECT OF WHICH WAS TO "DETER, HINDER,
PREVENT, DELAY AND HARASS NEGROES AND TO MAKE IT MORE DIFFICULT FOR
NEGROES IN THEIR EFFORTS TO BECOME REGISTERED VOTERS, TO FACILITATE
DISCRIMINATION AGAINST NEGROES, AND TO MAKE IT MORE DIFFICULT FOR THE
UNITED STATES TO PROTECT THE RIGHT OF ALL ITS CITIZENS TO VOTE WITHOUT
DISTINCTION OF RACE OR COLOR."  THESE 1962 LAWS PROVIDE, AMONG OTHER
THINGS, THAT APPLICATION FORMS MUST BE FILLED OUT "PROPERLY AND
RESPONSIVELY" BY THE APPLICANT WITHOUT ANY ASSISTANCE, AND THAT A
REGISTRAR MAY NOT TELL AN APPLICANT WHY HE FAILED THE TEST BECAUSE TO
DO SO MIGHT CONSTITUTE ASSISTANCE, AND THEY ALLEGEDLY GIVE REGISTRARS
EVEN GREATER DISCRETION TO DENY NEGROES THE RIGHT TO REGISTER ON
FORMAL, TECHNICAL, INCONSEQUENTIAL ERRORS.  (FN11) 

BY WAY OF RELIEF THE COURT WAS ASKED (1) TO DECLARE THE CHALLENGED
STATE LAWS UNCONSTITUTIONAL AS VIOLATIONS OF FEDERAL CONSTITUTIONAL
PROVISIONS AND STATUTES; (2) TO FIND THAT BY THESE LAWS NEGROES HAD
BEEN DENIED THE RIGHT TO VOTE PURSUANT TO A "PATTERN AND PRACTICE" OF
RACIAL DISCRIMINATION; (FN12) (3) TO ENJOIN THE DEFENDANTS FROM
ENFORCING ANY OF THESE STATE LAWS OR IN ANY OTHER WAY ACTING TO "DELAY,
PREVENT, HINDER, DISCOURAGE, OR HARASS NEGRO CITIZENS, ON ACCOUNT OF
THEIR RACE OR COLOR, FROM APPLYING FOR REGISTRATION AND BECOMING
REGISTERED VOTERS IN THE STATE OF MISSISSIPPI," OR USING ANY OTHER
INTERPRETATION OR UNDERSTANDING TEST WHICH "BEARS A DIRECT RELATIONSHIP
TO THE QUALITY OF PUBLIC EDUCATION AFFORDED NEGRO APPLICANTS"; AND (4)
TO ORDER THE DEFENDANTS TO REGISTER ANY NEGRO APPLICANT WHO IS OVER AGE
21, ABLE TO READ, A RESIDENT FOR THE PERIOD OF TIME PRESCRIBED BY STATE
LAW, AND NOT DISQUALIFIED BY STATE LAWS DISFRANCHISING THE INSANE AND
CERTAIN CONVICTED CRIMINALS. 

IT IS APPARENT THAT THE COMPLAINT WHICH THE MAJORITY OF THE DISTRICT
COURT DISMISSED CHARGED A LONG-STANDING, CAREFULLY PREPARED, AND
FAITHFULLY OBSERVED PLAN TO BAR NEGROES FROM VOTING IN THE STATE OF
MISSISSIPPI, A PLAN WHICH THE REGISTRATION STATISTICS INCLUDED IN THE
COMPLAINT WOULD SEEM TO SHOW HAD BEEN REMARKABLY SUCCESSFUL.  THIS
BRINGS US TO A CONSIDERATION OF THE SPECIFIC GROUNDS ASSIGNED BY THE
DISTRICT COURT FOR ITS DISMISSAL. 

                     I. 

ONE GROUND UPON WHICH THE MAJORITY OF THE DISTRICT COURT DISMISSED
THE GOVERNMENT'S COMPLAINT WAS THAT THE UNITED STATES IS WITHOUT
AUTHORITY, ABSENT THE CLEAREST POSSIBLE CONGRESSIONAL AUTHORIZATION, TO
BRING AN ACTION LIKE THIS ONE WHICH CHALLENGES THE VALIDITY OF STATE
LAWS ALLEGEDLY USED AS DEVICES TO KEEP NEGROES FROM VOTING ON ACCOUNT
OF THEIR RACE.  WE NEED NOT DISCUSS THE POWER OF THE UNITED STATES TO
BRING SUCH AN ACTION WITHOUT AUTHORIZATION BY CONGRESS, FOR IN 42
U.S.C. SEC 1971 (1958 ED.)  THERE IS EXPRESS CONGRESSIONAL
AUTHORIZATION FOR THE UNITED STATES TO FILE A SUIT PRECISELY OF THIS
KIND.  SECTION 1971(A) GUARANTEES THE RIGHT OF CITIZENS "WHO ARE
OTHERWISE QUALIFIED BY LAW TO VOTE AT ANY ELECTION" TO BE ALLOWED TO
VOTE "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."  (FN13) AND SUBSECTION (C) OF SEC 1971 SPECIFICALLY
AUTHORIZES THE ATTORNEY GENERAL TO FILE PROPER PROCEEDINGS FOR
PREVENTIVE RELIEF TO PROTECT THIS RIGHT TO VOTE WITHOUT DISCRIMINATION
ON ACCOUNT OF COLOR WHENEVER ANY PERSON HAS ENGAGED OR THERE ARE
REASONABLE GROUNDS TO BELIEVE THAT ANY PERSON IS ABOUT TO ENGAGE IN ANY
ACT OR PRACTICE WHICH WOULD DEPRIVE ANY OTHER PERSON OF THAT RIGHT. 
(FN14) THE DISTRICT COURT'S HOLDING THAT DESPITE THE CLEAR LANGUAGE
QUOTED ABOVE THE UNITED STATES STILL WAS NOT AUTHORIZED TO FILE THIS
SUIT SEEMS TO REST ON THE EMPHASIS IT PLACES ON THE PHRASE "OTHERWISE
QUALIFIED BY LAW" IN SEC 1971(A).  BY STRESSING THESE WORDS THE
MAJORITY BELOW REACHED THE CONCLUSION THAT IF NEGROES WERE KEPT FROM
VOTING BY STATE LAWS, EVEN THOUGH THOSE LAWS WERE UNCONSTITUTIONAL,
INSTEAD OF BEING BARRED BY UNLAWFUL DISCRIMINATORY APPLICATION OF LAWS
OTHERWISE VALID, THEN THEY WERE NOT "OTHERWISE QUALIFIED" AND SO SEC
1971 DID NOT APPLY TO THEM.  IN OTHER WORDS, WHILE PRIVATE PERSONS
MIGHT FILE SUITS UNDER SEC 1971 AGAINST INDIVIDUAL REGISTRARS WHO
DISCRIMINATED IN APPLYING OTHERWISE VALID LAWS, AND WHILE SUCH SUITS
MIGHT EVEN BE FILED BY THE GOVERNMENT, SEE UNITED STATES V. RAINES, 362
U.S. 17, THE STATUTE DID NOT AUTHORIZE THE UNITED STATES TO BRING SUITS
CHALLENGING THE VALIDITY OF THE STATE'S VOTING LAWS AS SUCH, HOWEVER
DISCRIMINATORY THEY MIGHT BE.  WE CAN FIND NO POSSIBLE JUSTIFICATION
FOR SUCH A CONSTRUCTION OF SEC. 1971(A) AND SEC. 1971(C).  SUBSECTION
(A) EXPLICITLY STATED THE LEGISLATIVE PURPOSE OF PROTECTING THE RIGHTS
OF COLORED CITIZENS TO VOTE NOTWITHSTANDING "ANY CONSTITUTION, LAW,
CUSTOM, USAGE, OR REGULATION OF ANY STATE."  THE PHRASE "OTHERWISE
QUALIFIED BY LAW TO VOTE" OBVIOUSLY MEANT THAT NEGROES MUST POSSESS THE
QUALIFICATIONS REQUIRED OF ALL VOTERS BY VALID STATE OR FEDERAL LAWS. 
IT IS DIFFICULT TO TAKE SERIOUSLY THE ARGUMENT THAT CONGRESS INTENDED
TO DILUTE ITS GUARANTEE OF THE RIGHT TO VOTE REGARDLESS OF RACE BY
SAYING AT THE SAME TIME THAT A STATE WAS FREE TO DISQUALIFY ITS NEGRO
CITIZENS BY LAWS WHICH VIOLATED THE UNITED STATES CONSTITUTION.  CF.
NEAL V. DELAWARE, 103 U.S. 370.  THE FIFTEENTH AMENDMENT PROTECTS THE
RIGHT TO VOTE REGARDLESS OF RACE AGAINST ANY DENIAL OR ABRIDGMENT BY
THE UNITED STATES OR BY ANY STATE.  SECTION 1971 WAS PASSED BY CONGRESS
UNDER THE AUTHORITY OF THE FIFTEENTH AMENDMENT TO ENFORCE THAT
AMENDMENT'S GUARANTEE, WHICH PROTECTS AGAINST ANY DISCRIMINATION BY A
STATE, ITS LAWS, ITS CUSTOMS, OR ITS OFFICIALS IN ANY WAY.  WE REJECT
THE ARGUMENT THAT THE ATTORNEY GENERAL WAS WITHOUT POWER TO INSTITUTE
THESE PROCEEDINGS IN ORDER TO PROTECT THE FEDERALLY GUARANTEED RIGHT TO
VOTE WITHOUT DISCRIMINATION ON ACCOUNT OF COLOR. 

                                       II. 

THE DISTRICT COURT HELD, AND IT IS CONTENDED HERE, THAT EVEN IF THE
ATTORNEY GENERAL DID HAVE POWER TO FILE THIS SUIT ON BEHALF OF THE
UNITED STATES, AS WE HAVE HELD HE DID, NEVERTHELESS HE WAS WITHOUT
POWER TO MAKE THE STATE A PARTY DEFENDANT.  THE DISTRICT COURT GAVE
GREAT WEIGHT TO MISSISSIPPI'S ARGUMENT THAT THE FIFTEENTH AMENDMENT "IS
DIRECTED TO PERSONS THROUGH WHOM A STATE MAY ACT AND NOT TO THE
SOVEREIGN ENTITY OF THE STATE ITSELF."  229 F. SUPP., AT 933.  LARGELY
TO AVOID WHAT IT CALLED THIS "SUBSTANTIAL CONSTITUTIONAL CLAIM," THE
DISTRICT COURT PROCEEDED TO CONSTRUE THE LANGUAGE OF SEC 1971 AS NOT
GRANTING THE ATTORNEY GENERAL AUTHORITY TO MAKE THE STATE A DEFENDANT. 
WE DO NOT AGREE WITH THAT CONSTRUCTION.    SECTION 1971(C) SAYS THAT
WHENEVER THE ATTORNEY GENERAL INSTITUTES A SUIT UNDER THIS SECTION
AGAINST A STATE OFFICIAL WHO HAS DEPRIVED A CITIZEN OF HIS RIGHT TO
VOTE BECAUSE OF RACE OR COLOR: 

"THE ACT OR PRACTICE SHALL ALSO BE DEEMED THAT OF THE STATE AND THE
STATE MAY BE JOINED AS A PARTY DEFENDANT AND, IF, PRIOR TO THE
INSTITUTION OF SUCH PROCEEDING, SUCH OFFICIAL HAS RESIGNED OR HAS BEEN
RELIEVED OF HIS OFFICE AND NO SUCCESSOR HAS ASSUMED SUCH OFFICE, THE
PROCEEDING MAY BE INSTITUTED AGAINST THE STATE." 

THE DISTRICT COURT ACCEPTED THE STATE'S ARGUMENT THAT THIS MEANT THAT
A STATE CAN BE MADE A DEFENDANT IN SUCH A CASE ONLY WHEN THE OFFICE OF
REGISTRAR IS VACANT, SO THAT THERE IS NO REGISTRAR AGAINST WHOM TO FILE
SUIT.  THIS ARGUMENT RELIES ON THE FACT THAT IN A CASE PENDING IN THIS
COURT WHEN THE STATUTORY LANGUAGE WAS CHANGED, REGISTRARS HAD RESIGNED
THEIR OFFICES IN ORDER TO KEEP FROM BEING SUED UNDER SEC 1971.  UNITED
STATES V. ALABAMA, 267 F.2D 808 (C.A. 5TH CIR.), VACATED AND REMANDED,
362 U.S. 602.  CONGRESS, THE STATE SAYS, PASSED THE PROVISION
AUTHORIZING SUIT AGAINST A STATE SOLELY TO PROVIDE A PARTY DEFENDANT
WHEN REGISTRARS RESIGNED, AS THEY HAD IN THE ALABAMA CASE.   BUT
WHATEVER THE REASONS CONGRESS HAD FOR AMENDING SEC 1971(C), AND WITHOUT
OUR NOW DECIDING WHETHER IT WAS NECESSARY TO DO SO TO PERMIT THE UNITED
STATES TO SUE A STATE UNDER THAT SECTION, THE LANGUAGE CONGRESS ADOPTED
LEAVES NO ROOM FOR THE CONSTRUCTION WHICH THE DISTRICT COURT PUT ON
THESE PROVISIONS.  INDEED, ON REMAND IN THE ALABAMA CASE THE FIFTH
CIRCUIT AFFIRMED THE DISTRICT COURT'S REFUSAL TO DISMISS THE STATE AS A
DEFENDANT EVEN THOUGH NEW REGISTRARS HAD QUALIFIED, AND THIS COURT
AFFIRMED THAT JUDGMENT.  ALABAMA V. UNITED STATES, 371 U.S. 37,
AFFIRMING 304 F.2D 583 (C.A. 5TH CIR.). 

THE STATE ARGUES ALSO THAT EVEN IF CONGRESS HAS AUTHORIZED MAKING THE
STATE A DEFENDANT HERE, AS WE HOLD IT HAS, CONGRESS HAD NO
CONSTITUTIONAL POWER TO DO SO.  THE FIFTEENTH AMENDMENT IN PLAIN,
UNAMBIGUOUS LANGUAGE PROVIDES THAT NO "STATE" SHALL DENY OR ABRIDGE THE
RIGHT OF CITIZENS TO VOTE BECAUSE OF THEIR COLOR.  IN AUTHORIZING THE
UNITED STATES TO MAKE A STATE A DEFENDANT IN A SUIT UNDER SEC 1971,
CONGRESS WAS ACTING UNDER ITS POWER GIVEN IN SEC 2 OF THE FIFTEENTH
AMENDMENT TO ENFORCE THAT AMENDMENT BY APPROPRIATE LEGISLATION.  THE
STATE'S ARGUMENT THAT CONGRESS ACTED HERE BEYOND ITS CONSTITUTIONAL
POWER IS BASED ON A NUMBER OF CASES THAT HAVE ALLOWED PRIVATE
INDIVIDUALS TO ENJOIN STATE OFFICIALS FROM DENYING CONSTITUTIONAL
RIGHTS, WHILE RECOGNIZING THAT WITHOUT ITS CONSENT A STATE COULD NOT BE
SUED BY PRIVATE PERSONS IN SUCH CIRCUMSTANCES, BECAUSE OF THE IMMUNITY
GIVEN THE STATE IN THE ELEVENTH AMENDMENT.  SEE, E.G., EX PARTE YOUNG,
209 U.S. 123.  BUT NONE OF THESE CASES DECIDED OR EVEN SUGGESTED THAT
CONGRESS COULD NOT AUTHORIZE THE UNITED STATES TO INSTITUTE LEGAL
PROCEEDINGS AGAINST STATES TO PROTECT CONSTITUTIONAL RIGHTS OF
CITIZENS.  THE ELEVENTH AMENDMENT IN TERMS FORBIDS SUITS AGAINST STATES
ONLY WHEN "COMMENCED OR PROSECUTED  ...  BY CITIZENS OF ANOTHER STATE,
OR BY CITIZENS OR SUBJECTS OF ANY FOREIGN STATE."  WHILE THIS HAS BEEN
READ TO BAR A SUIT BY A STATE'S OWN CITIZEN AS WELL, HANS V. LOUISIANA,
134 U.S. 1, NOTHING IN THIS OR ANY OTHER PROVISION OF THE CONSTITUTION
PREVENTS OR HAS EVER BEEN SERIOUSLY SUPPOSED TO PREVENT A STATE'S BEING
SUED BY THE UNITED STATES.  THE UNITED STATES IN THE PAST HAS IN MANY
CASES BEEN ALLOWED TO FILE SUITS IN THIS AND OTHER COURTS AGAINST
STATES, SEE, E.G., UNITED STATES V. TEXAS, 143 U.S. 621; UNITED STATES
V. CALIFORNIA, 297 U.S. 175, WITH OR WITHOUT SPECIFIC AUTHORIZATION
FROM CONGRESS, SEE UNITED STATES V. CALIFORNIA, 332 U.S. 19, 26-28. 
SEE ALSO PARDEN V. TERMINAL R. CO., 377 U.S. 184.  IN LIGHT OF THIS
HISTORY, IT SEEMS RATHER SURPRISING THAT THE DISTRICT COURT ENTERTAINED
SERIOUSLY THE ARGUMENT THAT THE UNITED STATES COULD NOT
CONSTITUTIONALLY SUE A STATE.  THE READING OF THE CONSTITUTION URGED BY
MISSISSIPPI IS NOT SUPPORTED BY PRECEDENT, IS NOT REQUIRED BY ANY
LANGUAGE OF THE CONSTITUTION, AND WOULD WITHOUT JUSTIFICATION IN REASON
DIMINISH THE POWER OF COURTS TO PROTECT THE PEOPLE OF THIS COUNTRY
AGAINST DEPRIVATION AND DESTRUCTION BY STATES OF THEIR FEDERALLY
GUARANTEED RIGHTS.  WE HOLD THAT THE STATE WAS PROPERLY MADE A
DEFENDANT IN THIS CASE. 

                                       III. 

THE DISTRICT COURT HELD WITH RESPECT TO THE THREE MEMBERS OF THE
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS THAT THE COMPLAINT FAILED
TO SHOW THAT THEY HAD A SUFFICIENT INTEREST IN ADMINISTERING OR
ENFORCING THE LAWS UNDER ATTACK TO PERMIT MAKING THEM PARTIES
DEFENDANT.  WE DO NOT AGREE.  UNDER STATE LAW THE ELECTION
COMMISSIONERS HAVE POWER, AUTHORITY, AND RESPONSIBILITY TO HELP
ADMINISTER THE VOTER REGISTRATION LAWS BY FORMULATING RULES FOR THE
VARIOUS TESTS APPLIED TO APPLICANTS FOR REGISTRATION.  SECTION 3209.6
OF THE MISSISSIPPI CODE DIRECTS THAT THE FORMS AND THE QUESTIONS ON THE
FORMS SHALL BE PREPARED AND MAINTAINED UNDER THE SUPERVISION OF THE
ELECTION BOARD AND THAT THESE APPLICATION FORMS SHALL BE: 

"DESIGNED TO TEST THE ABILITY OF APPLICANTS FOR REGISTRATION TO VOTE
TO READ AND WRITE ANY SECTION OF THE CONSTITUTION OF THIS STATE AND
GIVE A REASONABLE INTERPRETATION THEREOF, AND DEMONSTRATE TO THE COUNTY
REGISTRAR A REASONABLE UNDERSTANDING OF THE DUTIES AND OBLIGATIONS OF
CITIZENSHIP UNDER A CONSTITUTIONAL FORM OF GOVERNMENT; AND TO
DEMONSTRATE TO THE COUNTY REGISTRAR THAT APPLICANT IS A PERSON OF GOOD
MORAL CHARACTER AS REQUIRED BY SECTION 241-A OF THE CONSTITUTION OF
MISSISSIPPI." 

THESE "INTERPRETATION" AND "DUTIES AND OBLIGATIONS OF CITIZENSHIP"
TESTS, AS HAS BEEN POINTED OUT, ARE VITALLY IMPORTANT ELEMENTS OF THE
MISSISSIPPI LAWS CHALLENGED AS UNCONSTITUTIONAL IN THIS SUIT.  SHOULD
THE GOVERNMENT PROVE ITS CASE AND OBTAIN AN INJUNCTION, IT WOULD BE
NATURAL TO ASSUME THAT SUCH AN ORDER SHOULD RUN AGAINST THE BOARD OF
ELECTION COMMISSIONERS WITH REFERENCE TO THESE TWO TESTS.  THEREFORE
THE ELECTION COMMISSIONERS SHOULD NOT HAVE BEEN STRICKEN AS
DEFENDANTS. 

                                       IV. 

THE DISTRICT COURT SAID THAT THE COMPLAINT IMPROPERLY ATTEMPTED TO
HOLD THE SIX COUNTY REGISTRARS JOINTLY LIABLE FOR WHAT AMOUNTED TO
NOTHING MORE THAN INDIVIDUAL TORTS COMMITTED BY THEM SEPARATELY WITH
REFERENCE TO SEPARATE APPLICANTS.  FOR THIS REASON APPARENTLY IT WOULD
HAVE HELD THE VENUE IMPROPER AS TO THE THREE REGISTRARS WHO LIVED
OUTSIDE THE SOUTHERN DISTRICT OF MISSISSIPPI AND A FOURTH WHO LIVED IN
A DIFFERENT DIVISION OF THE SOUTHERN DISTRICT, AND IT WOULD HAVE
ORDERED THAT EACH OF THE OTHER TWO REGISTRARS BE SUED ALONE.  BUT THE
COMPLAINT CHARGED THAT THE REGISTRARS HAD ACTED AND WERE CONTINUING TO
ACT AS PART OF A STATE-WIDE SYSTEM DESIGNED TO ENFORCE THE REGISTRATION
LAWS IN A WAY THAT WOULD INEVITABLY DEPRIVE COLORED PEOPLE OF THE RIGHT
TO VOTE SOLELY BECAUSE OF THEIR COLOR.  ON SUCH AN ALLEGATION THE
JOINDER OF ALL THE REGISTRARS AS DEFENDANTS IN A SINGLE SUIT IS
AUTHORIZED BY RULE 20(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH
PROVIDES: 

"  ...  ALL PERSONS MAY BE JOINED IN ONE ACTION AS DEFENDANTS IF
THERE IS ASSERTED AGAINST THEM JOINTLY, SEVERALLY, OR IN THE
ALTERNATIVE, ANY RIGHT TO RELIEF IN RESPECT OF OR ARISING OUT OF THE
SAME TRANSACTION, OCCURRENCE, OR SERIES OF TRANSACTIONS OR OCCURRENCES
AND IF ANY QUESTION OF LAW OR FACT COMMON TO ALL OF THEM WILL ARISE IN
THE ACTION." 

THESE REGISTRARS WERE ALLEGED TO BE CARRYING ON ACTIVITIES WHICH WERE
PART OF A SERIES OF TRANSACTIONS OR OCCURRENCES THE VALIDITY OF WHICH
DEPENDED TO A LARGE EXTENT UPON "QUESTIONS OF LAW OR FACT COMMON TO ALL
OF THEM."  SINCE JOINDER OF THE REGISTRARS IN ONE SUIT WAS PROPER, THE
ARGUMENT THAT VENUE AS TO SOME OF THEM WAS NOT PROPERLY LAID IS ALSO
WITHOUT MERIT.  28 U.S.C. SECS 1392(A), 1393(B) (1958 ED.). 

                        V. 

AS A GENERAL GROUND FOR DISMISSAL, THE DISTRICT COURT HELD THAT THE
COMPLAINT FAILED TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED. 
IN CONSIDERING THE CORRECTNESS OF THIS RULING THE ALLEGATIONS OF THE
COMPLAINT ARE TO BE TAKEN AS TRUE, AND INDEED THE RECORD CONTAINS
ANSWERS TO PRETRIAL INTERROGATORIES WHICH INDICATE THAT THE UNITED
STATES STANDS READY TO PRODUCE MUCH EVIDENCE TENDING TO PROVE THE
TRUTHFULNESS OF ALL THE ALLEGATIONS IN THE COMPLAINT.  WHILE THE
GOVERNMENT HAS ARGUED THAT SEVERAL PROVISIONS OF THE MISSISSIPPI LAWS
CHALLENGED HERE MIGHT OR SHOULD BE HELD UNCONSTITUTIONAL ON THEIR FACE
WITHOUT INTRODUCTION OF EVIDENCE OR FURTHER HEARINGS, WITH RESPECT TO
ALL THE OTHERS THE SOLICITOR GENERAL IN THIS COURT SPECIFICALLY HAS
DECLINED TO "URGE THAT THE CONSTITUTIONALITY OF THESE PROVISIONS BE
DECIDED PRIOR TO TRIAL."  IN THIS SITUATION WE HAVE DECIDED THAT IT IS
THE MORE APPROPRIATE COURSE TO PASS ONLY UPON THE SUFFICIENCY OF THE
COMPLAINT'S ALLEGATIONS TO JUSTIFY RELIEF IF PROVED. 

WE HAVE NO DOUBT WHATSOEVER THAT IT WAS ERROR TO DISMISS THE
COMPLAINT WITHOUT A TRIAL.  THE COMPLAINT CHARGED THAT THE STATE OF
MISSISSIPPI AND ITS OFFICIALS FOR THE PAST THREE QUARTERS OF A CENTURY
HAVE BEEN WRITING AND ADOPTING CONSTITUTIONAL PROVISIONS, STATUTES,
RULES, AND REGULATIONS, AND HAVE BEEN ENGAGING IN DISCRIMINATORY
PRACTICES, ALL DESIGNED TO KEEP THE NUMBER OF WHITE VOTERS AT THE
HIGHEST POSSIBLE FIGURE AND THE NUMBER OF COLORED VOTERS AT THE
LOWEST.  IT ALLEGED THAT THE COMMON PURPOSE RUNNING THROUGH THE STATE'S
LEGAL AND ADMINISTRATIVE HISTORY DURING THAT TIME HAS BEEN TO ADOPT
WHATEVER EXPEDIENT SEEMED NECESSARY TO ESTABLISH WHITE POLITICAL
SUPREMACY IN A COMPLETELY SEGREGATED SOCIETY.  THIS PURPOSE, INDEED,
WAS RECOGNIZED BY THE MISSISSIPPI SUPREME COURT IN 1896 WHEN IT SAID,
SPEAKING OF THE CONVENTION WHICH ADOPTED THE 1890 CONSTITUTION: 

"WITHIN THE FIELD OF PERMISSIBLE ACTION UNDER THE LIMITATIONS IMPOSED
BY THE FEDERAL CONSTITUTION, THE CONVENTION SWEPT THE CIRCLE OF
EXPEDIENTS TO OBSTRUCT THE EXERCISE OF THE FRANCHISE BY THE NEGRO
RACE."  (FN15) 

THE SUCCESS OF THE EXPEDIENTS ADOPTED IN 1890 AND IN LATER YEARS TO
ACCOMPLISH THIS PURPOSE APPEARS FROM STATISTICS IN THE COMPLAINT.  FOR
EXAMPLE, THE COMPLAINT STATES THAT AT THE TIME THE SUIT WAS FILED AMITE
COUNTY, MISSISSIPPI, THE REGISTRAR OF WHICH WAS ONE OF THE DEFENDANTS
HERE, HAD A WHITE VOTING AGE POPULATION OF 4,449 WITH WHITE
REGISTRATION OF 3,295, WHILE IT HAD 2,560 COLORED PERSONS OF VOTING
AGE, OF WHOM ONLY ONE WAS A REGISTERED VOTER.  THERE IS NO NEED TO
MULTIPLY EXAMPLES.  THE ALLEGATIONS OF THIS COMPLAINT WERE TOO SERIOUS,
THE RIGHT TO VOTE IN THIS COUNTRY IS TOO PRECIOUS, AND THE NECESSITY OF
SETTLING GRIEVANCES PEACEFULLY IN THE COURTS IS TOO IMPORTANT FOR THIS
COMPLAINT TO HAVE BEEN DISMISSED.  COMPARE DAVIS V. SCHNELL, 81 F.
SUPP. 872 (D.C.S.D. ALA.), AFF'D, 336 U.S. 933; LOUISIANA V. UNITED
STATES, POST, P. 145, THIS DAY DECIDED.  THE CASE SHOULD HAVE BEEN
TRIED.  IT SHOULD NOW BE TRIED WITHOUT DELAY.  REVERSED AND REMANDED. 

FN1  UNITED STATES CONSTITUTION, AMENDMENT XIV, PROVIDES IN PART: 

"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." 

FN2  UNITED STATES CONSTITUTION, AMENDMENT XV, PROVIDES: 

"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." 

FN3  JUDGE COX ALSO WROTE A SEPARATE CONCURRING OPINION. 

FN4 SECTION 244 OF THE MISSISSIPPI CONSTITUTION OF 1890 PROVIDED: 

"ON AND AFTER THE FIRST DAY OF JANUARY, A.D., 1892, EVERY ELECTOR
SHALL, IN ADDITION TO THE FOREGOING QUALIFICATIONS, BE ABLE TO READ ANY
UNDERSTAND THE SAME WHEN READ TO HIM, OR GIVE A REASONABLE
INTERPRETATION THEREOF.  A NEW REGISTRATION SHALL BE MADE BEFORE THE
NEXT ENSUING ELECTION AFTER JANUARY THE FIRST, A.D., 1892." 

FN5  PEAY V. COX, 190 F.2D 123, 126 (C.A. 5TH CIR.), CERT. DENIED,
342 U.S. 896. 

FN6  AS AMENDED SEC. 244 OF THE MISSISSIPPI CONSTITUTION READS IN
PART: 

"EVERY ELECTOR SHALL, IN ADDITION TO THE FOREGOING QUALIFICATIONS BE
ABLE TO READ AND WRITE ANY SECTION OF THE CONSTITUTION OF THIS STATE
AND GIVE A REASONABLE INTERPRETATION THEREOF TO THE COUNTY REGISTRAR. 
HE SHALL DEMONSTRATE TO THE COUNTY REGISTRAR A REASONABLE UNDERSTANDING
OF THE DUTIES AND OBLIGATIONS OF CITIZENSHIP UNDER A CONSTITUTIONAL
FORM OF GOVERNMENT  ...  ." 

FN7  SECTION 241-A OF THE MISSISSIPPI CONSTITUTION PROVIDES: 

"IN ADDITION TO ALL OTHER QUALIFICATIONS REQUIRED OF A PERSON TO BE
ENTITLED TO REGISTER FOR THE PURPOSE OF BECOMING A QUALIFIED ELECTOR,
SUCH PERSON SHALL BE OF GOOD MORAL CHARACTER. 

"THE LEGISLATURE SHALL HAVE THE POWER TO ENFORCE THE PROVISIONS OF
THIS SECTION BY APPROPRIATE LEGISLATION." 

FN8  MISS.  LAWS 1960, C. 449, MISS.  CODE ANN. SEC. 3209.6 (1962
CUM. SUPP.). 

FN9  74 STAT. 88, 42 U.S.C. SECS. 1974-1974E (1958 ED., SUPP. V). 

FN10  MISS.  LAWS 1962, C. 569, SEC. 1, MISS.  CODE ANN. SEC. 3209.6
(1962 CUM. SUPP.) (REQUIRING THAT APPLICATION FORMS PROVIDE THAT
APPLICANTS DEMONSTRATE "GOOD MORAL CHARACTER" AND THAT REGISTRARS
OBSERVE THIS REQUIREMENT); MISS.  LAWS 1962, C. 570, MISS.  CODE ANN.
SEC. 3213 (1962 CUM. SUPP.)(REQUIRING APPLICANTS TO FILL IN ALL BLANKS
ON THE APPLICATION FORM "PROPERLY AND RESPONSIVELY" WITHOUT ANY
ASSISTANCE); MISS.  LAWS 1962, C. 571, MISS.  CODE ANN. SEC. 3212.5
(1962 CUM. SUPP.)(PROHIBITING REGISTRARS FROM TELLING AN APPLICANT WHY
HE WAS REJECTED, "AS SO TO DO MAY CONSTITUTE ASSISTANCE TO THE
APPLICANT ON ANOTHER APPLICATION"); MISS.  LAWS 1962, C. 572, MISS. 
CODE ANN. SEC. 3212.7 (1962 CUM.  SUPP.)(REQUIRING NEWSPAPER
PUBLICATION OF APPLICANTS' NAMES); MISS.  LAWS 1962, C. 573, MISS. 
CODE ANN. SECS. 3217-01 - 3217-15 (1962 CUM. SUPP.)(PROVIDING FOR
CHALLENGE BY ANY VOTER OF AN APPLICANT'S QUALIFICATIONS TO VOTE);
MISS.  LAWS 1962, C. 574, MISS.  CODE ANN. SEC. 3232 (1962 CUM.
SUPP.)(ELIMINATING DESIGNATION OF RACE IN COUNTY POLL BOOKS).    FN11
MISS.  LAWS 1962, C. 570, MISS.  CODE ANN. SEC. 3213 (1962 CUM. SUPP.),
IS CLAIMED BY THE GOVERNMENT TO HAVE HAD THE LATTER EFFECT.  IN ITS
BRIEF IN THIS COURT THE GOVERNMENT ARGUES THAT THIS PROVISION IS
INVALID ON ITS FACE AS CONTRARY TO SEC. 101(A) OF THE CIVIL RIGHTS ACT
OF 1964, 78 STAT. 241, AMENDING SEC. 131 OF THE CIVIL RIGHTS ACT OF
1957, 71 STAT. 637, 42 U.S.C. SEC. 1971(A) (1958 ED.). 

FN12  SUCH A FINDING WOULD BY FORCE OF 42 U.S.C. SEC. 1971(E) (1958
ED., SUPP. V) AUTHORIZE A COURT TO MAKE AN ORDER DECLARING THAT A
PERSON DENIED THE RIGHT TO VOTE BECAUSE OF COLOR IS ENTITLED TO VOTE. 

FN13  "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."  ACT OF MAY 31, 1870,
16 STAT. 140, 42 U.S.C. SEC. 1971(A) (1958 ED.). 

FN14  74 STAT. 90, 42 U.S.C. SEC. 1971(C) (1958 ED., SUPP. V),
PROVIDES: 

"WHENEVER ANY PERSON HAS ENGAGED OR THERE ARE REASONABLE GROUNDS TO
BELIEVE THAT ANY PERSON IS ABOUT TO ENGAGE IN ANY ACT OR PRACTICE WHICH
WOULD DEPRIVE ANY OTHER PERSON OF ANY RIGHT OR PRIVILEGE SECURED BY
SUBSECTION (A) OR (B) OF THIS SECTION, THE ATTORNEY GENERAL MAY
INSTITUTE FOR THE UNITED STATES, OR IN THE NAME OF THE UNITED STATES, A
CIVIL ACTION OR OTHER PROPER PROCEEDING FOR PREVENTIVE RELIEF,
INCLUDING AN APPLICATION FOR A PERMANENT OR TEMPORARY INJUNCTION,
RESTRAINING ORDER, OR OTHER ORDER.  IN ANY PROCEEDING HEREUNDER THE
UNITED STATES SHALL BE LIABLE FOR COSTS THE SAME AS A PRIVATE PERSON. 

"WHENEVER, IN A PROCEEDING INSTITUTED UNDER THIS SUBSECTION ANY
OFFICIAL OF A STATE OR SUBDIVISION THEREOF IS ALLEGED TO HAVE COMMITTED
ANY ACT OR PRACTICE CONSTITUTING A DEPRIVATION OF ANY RIGHT OR
PRIVILEGE SECURED BY SUBSECTION (A) OF THIS SECTION, THE ACT OR
PRACTICE SHALL ALSO BE DEEMED THAT OF THE STATE AND THE STATE MAY BE
JOINED AS A PARTY DEFENDANT AND, IF, PRIOR TO THE INSTITUTION OF SUCH
PROCEEDING, SUCH OFFICIAL HAS RESIGNED OR HAS BEEN RELIEVED OF HIS
OFFICE AND NO SUCCESSOR HAS ASSUMED SUCH OFFICE, THE PROCEEDING MAY BE
INSTITUTED AGAINST THE STATE." 

FN15  RATLIFF V. BEALE, 74 MISS.  247, 266, 20 SO. 865, 868. 

MR. JUSTICE HARLAN CONSIDERS THAT THE CONSTITUTIONAL CONCLUSIONS
REACHED IN THIS OPINION CAN PROPERLY BE BASED ONLY ON THE PROVISIONS OF
THE FIFTEENTH AMENDMENT.  IN ALL OTHER RESPECTS, HE FULLY SUBSCRIBES TO
THIS OPINION. 
..END :


















LOUISIANA V. UNITED STATES 380 U.S. 145 


NO. 67.  ARGUED JANUARY 26-27, 1965.  - DECIDED MARCH 8, 1965.  - 225 F.
SUPP. 353, AFFIRMED. 


PURSUANT TO 42 U.S.C. SEC. 1971(C) THE ATTORNEY GENERAL BROUGHT THIS
ACTION AGAINST APPELLANTS, THE STATE OF LOUISIANA, THE THREE MEMBERS OF
THE STATE REGISTRATION BOARD, AND THE BOARD'S DIRECTOR-SECRETARY,
CHARGING A LONG-STANDING PLAN TO DEPRIVE LOUISIANA NEGROES OF VOTING
RIGHTS IN VIOLATION OF SEC. 1971(A) AND THE FOURTEENTH AND FIFTEENTH
AMENDMENTS.  THE COMPLAINT ALLEGED AND THE DISTRICT COURT HELD THAT THE
DISCRIMINATORY SCHEME BEGAN WITH THE ADOPTION OF A "GRANDFATHER CLAUSE"
IN THE LOUISIANA CONSTITUTION OF 1898, WHEN ABOUT 44% OF THE STATE'S
REGISTERED VOTERS WERE NEGROES.  UPON THIS COURT'S INVALIDATION OF A
SIMILAR CLAUSE, LOUISIANA IN 1921 SUBSTITUTED A NEW "INTERPRETATION
TEST," WHICH REQUIRED AN APPLICANT TO INTERPRET A SECTION OF THE STATE
OR FEDERAL CONSTITUTION TO THE SATISFACTION OF THE REGISTRAR.  FROM
THAT TIME TO 1944 THE PROPORTION OF REGISTERED VOTERS WHO WERE NEGROES
DID NOT EXCEED 1%, MAINLY BECAUSE THE WHITE PRIMARY SYSTEM KEPT NEGROES
FROM PARTICIPATING IN THE DEMOCRATIC PRIMARY, THE ONLY POLITICALLY
SIGNIFICANT ELECTION IN THE STATE.  WHEN AFTER THIS COURT IN 1944
INVALIDATED RACIAL DISCRIMINATION IN PRIMARY ELECTIONS AND MANY
REGISTRARS STILL FAILED TO APPLY THE INTERPRETATION TEST, THE
PERCENTAGE OF VOTERS WHO WERE NEGROES INCREASED TO 15%, A SITUATION
WHICH, ALONG WITH INCREASED SEGREGATIONIST SENTIMENT FOLLOWING THIS
COURT'S SCHOOL DESEGREGATION DECISION, LED THE LEGISLATURE TO CREATE A
"SEGREGATION COMMITTEE."   THAT COMMITTEE COOPERATED WITH CITIZENS
COUNCILS TO INSTRUCT REGISTRARS TO PROMOTE WHITE POLITICAL CONTROL AND
TO BEGIN WHOLESALE PURGES OF NEGROES FROM THE VOTING ROLLS.  AT LEAST
21 PARISHES IN THE MID-1950'S BEGAN APPLYING THE INTERPRETATION TEST,
TO WHICH WAS ADDED IN 1960 A COMPREHENSION REQUIREMENT, APPLICABLE TO
ALL PERSONS, WHICH THE STATE REGISTRATION BOARD ORDERED RIGIDLY
ENFORCED.   THE DISTRICT COURT, IN VIEW OF THE VIRTUALLY UNLIMITED
DISCRETION GIVEN VOTING REGISTRARS BY THE LOUISIANA LAWS AND BECAUSE
THE 21 PARISH REGISTRARS HAD USED THE INTERPRETATION TEST TO KEEP
NEGROES FROM VOTING, HELD THAT TEST ON ITS FACE AND AS APPLIED INVALID
UNDER THE FOURTEENTH AND FIFTEENTH AMENDMENTS AND 42 U.S.C. SEC.
1971(A) AND ENJOINED ITS FUTURE USE IN THE STATE; WITH RESPECT TO THE
21 PARISHES WHERE THE TEST WAS FOUND TO HAVE BEEN APPLIED, IT ALSO
ENJOINED USE OF A NEW "CITIZENSHIP" TEST ABSENT A REREGISTRATION OF
VOTERS SO THAT THE NEW TEST WILL APPLY TO ALL OR NONE, AND REQUIRED
MONTHLY REGISTRATION REPORTS TO BE MADE FOR THOSE PARISHES.  HELD: 

1.  THE ATTORNEY GENERAL HAS POWER TO SUE A STATE AND ITS OFFICIALS
TO PROTECT NEGROES' VOTING RIGHTS GUARANTEED BY 42 U.S.C. SEC. 1971(A)
AND THE FOURTEENTH AND FIFTEENTH AMENDMENTS.  UNITED STATES V.
MISSISSIPPI, ANTE, P. 128, FOLLOWED.  P. 151. 

2.  THE EVIDENCE AMPLY SUPPORTED THE DISTRICT COURT'S FINDING THAT
LOUISIANA'S INTERPRETATION TEST, AS WRITTEN AND APPLIED SO AS TO GIVE
REGISTRARS UNBRIDLED DISCRETION WITHOUT ANY OBJECTIVE STANDARDS TO
DETERMINE VOTING QUALIFICATIONS, WAS PART OF A SUCCESSFUL PLAN
UNLAWFULLY TO DEPRIVE LOUISIANA NEGROES OF THEIR VOTING RIGHTS. 
SCHNELL V. DAVIS, 336 U.S. 933, AFFIRMING 81 F. SUPP. 872 (D.C.S.D.
ALA.), FOLLOWED.  PP. 151-153. 

3.  THE DECREE WAS WELL WITHIN THE DISTRICT COURT'S DISCRETION TO
ELIMINATE PAST VOTING DISCRIMINATION AGAINST NEGROES IN LOUISIANA AND
TO BAR LIKE DISCRIMINATION IN THE FUTURE.  PP. 154-156. 

(A)  THE DECREE PROPERLY ENJOINED FURTHER USE OF THE INTERPRETATION
TEST.  P. 154. 

(B)  SINCE A LARGE PROPORTION OF NEGROES IN THE 21 PARISHES HAD BEEN
KEPT FROM REGISTERING BY THE DISCRIMINATORY INTERPRETATION TEST, UNDER
WHICH VIRTUALLY ALL WHITE APPLICANTS WERE ALLOWED TO REGISTER, THE
DECREE PROPERLY BARRED APPLICATION OF THE NEW "CITIZENSHIP" TEST, WHICH
THE STATE CLAIMS IS OBJECTIVE, ABSENT A COMPLETE REREGISTRATION OF ALL
VOTERS IN THOSE PARISHES.  PP. 154-155. 

(C)  THE REQUIREMENT FOR MONTHLY REGISTRATION REPORTS FOR THE 21
PARISHES WAS PROPER TO INFORM THE COURT AS TO WHETHER THE OLD
DISCRIMINATORY PRACTICES HAD BEEN ELIMINATED.  PP. 155-156. 

LOUISIANA ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PURSUANT TO AUTHORITY GRANTED IN 42 U.S.C. SEC. 1971(C) (1958 ED.,
SUPP. V), THE ATTORNEY GENERAL BROUGHT THIS ACTION ON BEHALF OF THE
UNITED STATES IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA AGAINST THE STATE OF LOUISIANA, THE THREE MEMBERS
OF THE STATE BOARD OF REGISTRATION, AND THE DIRECTOR-SECRETARY OF THE
BOARD.  THE COMPLAINT CHARGED THAT THE DEFENDANTS BY FOLLOWING AND
ENFORCING UNCONSTITUTIONAL STATE LAWS HAD BEEN DENYING AND UNLESS
RESTRAINED BY THE COURT WOULD CONTINUE TO DENY NEGRO CITIZENS OF
LOUISIANA THE RIGHT TO VOTE, IN VIOLATION OF 42 U.S.C. SEC. 1971(A)
(1958 ED.)  (FN1) AND THE FOURTEENTH AND FIFTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.  THE CASE WAS TRIED AND AFTER SUBMISSION OF
EVIDENCE, (FN2) THE THREE-JUDGE DISTRICT COURT, CONVENED PURSUANT TO 28
U.S.C. SEC. 2281 (1958 ED.), GAVE JUDGMENT FOR THE UNITED STATES.  225
F. SUPP. 353.  THE STATE AND THE OTHER DEFENDANTS APPEALED, AND WE
NOTED PROBABLE JURISDICTION.  377 U.S. 987. 

THE COMPLAINT ALLEGED, AND THE DISTRICT COURT FOUND, THAT BEGINNING
WITH THE ADOPTION OF THE LOUISIANA CONSTITUTION OF 1898, WHEN
APPROXIMATELY 44% OF ALL THE REGISTERED VOTERS IN THE STATE WERE
NEGROES, THE STATE HAD PUT INTO EFFECT A SUCCESSFUL POLICY OF DENYING
NEGRO CITIZENS THE RIGHT TO VOTE BECAUSE OF THEIR RACE.  THE 1898
CONSTITUTION ADOPTED WHAT WAS KNOWN AS A "GRANDFATHER CLAUSE," WHICH
IMPOSED BURDENSOME REQUIREMENTS FOR REGISTRATION THEREAFTER BUT
EXEMPTED FROM THESE FUTURE REQUIREMENTS ANY PERSON WHO HAD BEEN
ENTITLED TO VOTE BEFORE JANUARY 1, 1867, OR WHO WAS THE SON OR GRANDSON
OF SUCH A PERSON.  (FN3)  SUCH A TRANSPARENT EXPEDIENT FOR
DISFRANCHISING NEGROES, WHOSE ANCESTORS HAD BEEN SLAVES UNTIL 1863 AND
NOT ENTITLED TO VOTE IN LOUISIANA BEFORE 1867, (FN4) WAS HELD
UNCONSTITUTIONAL IN 1915 AS A VIOLATION OF THE FIFTEENTH AMENDMENT, IN
A CASE INVOLVING A SIMILAR OKLAHOMA CONSTITUTIONAL PROVISION.  GUINN V.
UNITED STATES, 238 U.S. 347.  SOON AFTER THAT DECISION LOUISIANA, IN
1921, ADOPTED A NEW CONSTITUTION REPLACING THE REPUDIATED "GRANDFATHER
CLAUSE" WITH WHAT THE COMPLAINT CALLS AN "INTERPRETATION TEST," WHICH
REQUIRED THAT AN APPLICANT FOR REGISTRATION BE ABLE TO "GIVE A
REASONABLE INTERPRETATION" OF ANY CLAUSE IN THE LOUISIANA CONSTITUTION
OR THE CONSTITUTION OF THE UNITED STATES.  (FN5)  FROM THE ADOPTION OF
THE 1921 INTERPRETATION TEST UNTIL 1944, THE DISTRICT COURT'S OPINION
STATED, THE PERCENTAGE OF REGISTERED VOTERS IN LOUISIANA WHO WERE
NEGROES NEVER EXCEEDED ONE PERCENT.  PRIOR TO 1944 NEGRO INTEREST IN
VOTING IN LOUISIANA HAD BEEN SLIGHT, LARGELY BECAUSE THE STATE'S WHITE
PRIMARY LAW KEPT NEGROES FROM VOTING IN THE DEMOCRATIC PARTY PRIMARY
ELECTION, THE ONLY ELECTION THAT MATTERED IN THE POLITICAL CLIMATE OF
THAT STATE.  IN 1944, HOWEVER, THIS COURT INVALIDATED THE SUBSTANTIALLY
IDENTICAL WHITE PRIMARY LAW OF TEXAS, (FN6) AND WITH THE EXPLICIT
STATUTORY BAR TO THEIR VOTING IN THE PRIMARY REMOVED AND BECAUSE OF A
GENERALLY HEIGHTENED POLITICAL INTEREST, NEGROES IN INCREASING NUMBERS
BEGAN TO REGISTER IN LOUISIANA.  THE WHITE PRIMARY SYSTEM HAD BEEN SO
EFFECTIVE IN BARRING NEGROES FROM VOTING THAT THE "INTERPRETATION TEST"
AS A DISFRANCHISING DEVICE HAD BEEN IGNORED OVER THE YEARS.  MANY
REGISTRARS CONTINUED TO IGNORE IT AFTER 1944, AND IN THE NEXT DOZEN
YEARS THE PROPORTION OF REGISTERED VOTERS WHO WERE NEGROES ROSE FROM
TWO-TENTHS OF ONE PERCENT TO APPROXIMATELY 15% BY MARCH 1956.  THIS
FACT, COUPLED WITH THIS COURT'S 1954 INVALIDATION OF LAWS REQUIRING
SCHOOL SEGREGATION, (FN7) PROMPTED THE STATE TO TRY NEW DEVICES TO KEEP
THE WHITE CITIZENS IN CONTROL.  THE LOUISIANA LEGISLATURE CREATED A
COMMITTEE WHICH BECAME KNOWN AS THE "SEGREGATION COMMITTEE" TO SEEK
MEANS OF ACCOMPLISHING THIS GOAL.  THE CHAIRMAN OF THIS COMMITTEE ALSO
HELPED TO ORGANIZE A SEMIPRIVATE GROUP CALLED THE ASSOCIATION OF
CITIZENS COUNCILS, WHICH THEREAFTER ACTED IN CLOSE COOPERATION WITH THE
LEGISLATIVE COMMITTEE TO PRESERVE WHITE SUPREMACY.  THE LEGISLATIVE
COMMITTEE AND THE CITIZENS COUNCILS SET UP PROGRAMS, WHICH PARISH
VOTING REGISTRARS WERE REQUIRED TO ATTEND, TO INSTRUCT THE REGISTRARS
ON HOW TO PROMOTE WHITE POLITICAL CONTROL.  THE COMMITTEE AND THE
CITIZENS COUNCILS ALSO BEGAN A WHOLESALE CHALLENGING OF NEGRO NAMES
ALREADY ON THE VOTING ROLLS, WITH THE RESULT THAT THOUSANDS OF NEGROES,
BUT VIRTUALLY NO WHITES, WERE PURGED FROM THE ROLLS OF VOTERS. 
BEGINNING IN THE MIDDLE 1950'S REGISTRARS OF AT LEAST 21 PARISHES BEGAN
TO APPLY THE INTERPRETATION TEST.  IN 1960 THE STATE CONSTITUTION WAS
AMENDED TO REQUIRE EVERY APPLICANT THEREAFTER TO "BE ABLE TO
UNDERSTAND" AS WELL AS "GIVE A REASONABLE INTERPRETATION" OF ANY
REGISTRAR."  (FN8)  THE STATE BOARD OF REGISTRATION IN COOPERATION WITH
THE SEGREGATION COMMITTEE ISSUED ORDERS THAT ALL PARISH REGISTRARS MUST
STRICTLY COMPLY WITH THE NEW PROVISIONS. 

THE INTERPRETATION TEST, THE COURT FOUND, VESTED IN THE VOTING
REGISTRARS A VIRTUALLY UNCONTROLLED DISCRETION AS TO WHO SHOULD VOTE
AND WHO SHOULD NOT.  UNDER THE STATE'S STATUTES AND CONSTITUTIONAL
PROVISIONS THE REGISTRARS, WITHOUT ANY OBJECTIVE STANDARD TO GUIDE
THEM, DETERMINE THE MANNER IN WHICH THE INTERPRETATION TEST IS TO BE
GIVEN, WHETHER IT IS TO BE ORAL OR WRITTEN, THE LENGTH AND COMPLEXITY
OF THE SECTIONS OF THE STATE OR FEDERAL CONSTITUTION TO BE UNDERSTOOD
AND INTERPRETED, AND WHAT INTERPRETATION IS TO BE CONSIDERED CORRECT. 
THERE WAS AMPLE EVIDENCE TO SUPPORT THE DISTRICT COURT'S FINDING THAT
REGISTRARS IN THE 21 PARISHES WHERE THE TEST WAS FOUND TO HAVE BEEN
USED HAD EXERCISED THEIR BROAD POWERS TO DEPRIVE OTHERWISE QUALIFIED
NEGRO CITIZENS OF THEIR RIGHT TO VOTE; AND THAT THE EXISTENCE OF THE
TEST AS A HURDLE TO VOTER QUALIFICATION HAS IN ITSELF DETERRED AND WILL
CONTINUE TO DETER NEGROES FROM ATTEMPTING TO REGISTER IN LOUISIANA. 

BECAUSE OF THE VIRTUALLY UNLIMITED DISCRETION VESTED BY THE LOUISIANA
LAWS IN THE REGISTRARS OF VOTERS, AND BECAUSE IN THE 21 PARISHES WHERE
THE INTERPRETATION TEST WAS APPLIED THAT DISCRETION HAD BEEN EXERCISED
TO KEEP NEGROES FROM VOTING BECAUSE OF THEIR RACE, THE DISTRICT COURT
HELD THE INTERPRETATION TEST INVALID ON ITS FACE AND AS APPLIED, AS A
VIOLATION OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND OF 42 U.S.C. SEC.  1971(A).  (FN9)  THE
DISTRICT COURT ENJOINED FUTURE USE OF THE TEST IN THE STATE, AND WITH
RESPECT TO THE 21 PARISHES WHERE THE INVALID INTERPRETATION TEST WAS
FOUND TO HAVE BEEN APPLIED, THE DISTRICT COURT ALSO ENJOINED USE OF A
NEWLY ENACTED "CITIZENSHIP" TEST, WHICH DID NOT REPEAL THE
INTERPRETATION TEST AND THE VALIDITY OF WHICH WAS NOT CHALLENGED IN
THIS SUIT, UNLESS A REREGISTRATION OF ALL VOTERS IN THOSE PARISHES IS
ORDERED, SO THAT THERE WOULD BE NO VOTERS IN THOSE PARISHES WHO HAD NOT
PASSED THE SAME TEST. 

              I. 

WE HAVE HELD THIS DAY IN UNITED STATES V. MISSISSIPPI, ANTE, P. 128,
THAT THE ATTORNEY GENERAL HAS POWER TO BRING SUIT AGAINST A STATE AND
ITS OFFICIALS TO PROTECT THE VOTING RIGHTS OF NEGROES GUARANTEED BY 42
U.S.C. SEC. 1971(A) AND THE FOURTEENTH AND FIFTEENTH AMENDMENTS. 
(FN10)  THERE CAN BE NO DOUBT FROM THE EVIDENCE IN THIS CASE THAT THE
DISTRICT COURT WAS AMPLY JUSTIFIED IN FINDING THAT LOUISIANA'S
INTERPRETATION TEST, AS WRITTEN AND AS APPLIED, WAS PART OF A
SUCCESSFUL PLAN TO DEPRIVE LOUISIANA NEGROES OF THEIR RIGHT TO VOTE. 
THIS DEVICE FOR ACCOMPLISHING UNCONSTITUTIONAL DISCRIMINATION HAS BEEN
LITTLE IF ANY LESS SUCCESSFUL THAN WAS THE "GRANDFATHER CLAUSE"
INVALIDATED BY THIS COURT'S DECISION IN GUINN V. UNITED STATES, SUPRA,
50 YEARS AGO, WHICH WHEN THAT CLAUSE WAS ADOPTED IN 1898 HAD SEEMED TO
THE LEADERS OF LOUISIANA A MUCH PREFERABLE WAY OF ASSURING WHITE
POLITICAL SUPREMACY.  THE GOVERNOR OF LOUISIANA STATED IN 1898 THAT HE
BELIEVED THAT THE "GRANDFATHER CLAUSE" SOLVED THE PROBLEM OF KEEPING
NEGROES FROM VOTING "IN A MUCH MORE UPRIGHT AND MANLY FASHION" (FN11)
THAN THE METHOD ADOPTED PREVIOUSLY BY THE STATES OF MISSISSIPPI AND
SOUTH CAROLINA, WHICH LEFT THE QUALIFICATION OF APPLICANTS TO VOTE
"LARGELY TO THE ARBITRARY DISCRETION OF THE OFFICERS ADMINISTERING THE
LAW."  (FN12)  A DELEGATE TO THE 1898 LOUISIANA CONSTITUTIONAL
CONVENTION ALSO CRITICIZED AN INTERPRETATION TEST BECAUSE THE
"ARBITRARY POWER, LODGED WITH THE REGISTRATION OFFICER, PRACTICALLY
PLACES HIS DECISION BEYOND THE PALE OF JUDICIAL REVIEW; AND HE CAN
ENFRANCHISE OR DISFRANCHISE VOTERS AT HIS OWN SWEET WILL AND PLEASURE
WITHOUT LET OR HINDRANCE."  (FN13) 

BUT LOUISIANANS OF A LATER GENERATION DID PLACE JUST SUCH ARBITRARY
POWER IN THE HANDS OF ELECTION OFFICERS WHO HAVE USED IT WITH
PHENOMENAL SUCCESS TO KEEP NEGROES FROM VOTING IN THE STATE.  THE STATE
ADMITS THAT THE STATUTES AND PROVISIONS OF THE STATE CONSTITUTION
ESTABLISHING THE INTERPRETATION TEST "VEST DISCRETION IN THE REGISTRARS
OF VOTERS TO DETERMINE THE QUALIFICATIONS OF APPLICANTS FOR
REGISTRATION" WHILE IMPOSING "NO DEFINITE AND OBJECTIVE STANDARDS UPON
REGISTRARS OF VOTERS FOR THE ADMINISTRATION OF THE INTERPRETATION
TEST."  AND THE DISTRICT COURT FOUND THAT "LOUISIANA  ...  PROVIDES NO
EFFECTIVE METHOD WHEREBY ARBITRARY AND CAPRICIOUS ACTION BY REGISTRARS
OF VOTERS MAY BE PREVENTED OR REDRESSED."  (FN14)  THE APPLICANT FACING
A REGISTRAR IN LOUISIANA THUS HAS BEEN COMPELLED TO LEAVE HIS VOTING
FATE TO THAT OFFICIAL'S UNCONTROLLED POWER TO DETERMINE WHETHER THE
APPLICANT'S UNDERSTANDING OF THE FEDERAL OR STATE CONSTITUTION IS
SATISFACTORY.  AS THE EVIDENCE SHOWED, COLORED PEOPLE, EVEN SOME WITH
THE MOST ADVANCED EDUCATION AND SCHOLARSHIP, WERE DECLARED BY VOTING
REGISTRARS WITH LESS EDUCATION TO HAVE AN UNSATISFACTORY UNDERSTANDING
OF THE CONSTITUTION OF LOUISIANA OR OF THE UNITED STATES.  THIS IS NOT
A TEST BUT A TRAP, SUFFICIENT TO STOP EVEN THE MOST BRILLIANT MAN ON
HIS WAY TO THE VOTING BOOTH.  THE CHERISHED RIGHT OF PEOPLE IN A
COUNTRY LIKE OURS TO VOTE CANNOT BE OBLITERATED BY THE USE OF LAWS LIKE
THIS, WHICH LEAVE THE VOTING FATE OF A CITIZEN TO THE PASSING WHIM OR
IMPULSE OF AN INDIVIDUAL REGISTRAR.  MANY OF OUR CASES HAVE POINTED OUT
THE INVALIDITY OF LAWS SO COMPLETELY DEVOID OF STANDARDS AND
RESTRAINTS.  SEE, E.G., UNITED STATES V. L. COHEN GROCERY CO., 255 U.S.
81.  SQUARELY IN POINT IS SCHNELL V. DAVIS, 336 U.S. 933, AFFIRMING 81
F. SUPP. 872 (D.C.S.D. ALA.), IN WHICH WE AFFIRMED A DISTRICT COURT
JUDGMENT STRIKING DOWN AS A VIOLATION OF THE FOURTEENTH AND FIFTEENTH
AMENDMENTS AN ALABAMA CONSTITUTIONAL PROVISION RESTRICTING THE RIGHT TO
VOTE IN THAT STATE TO PERSONS WHO COULD "UNDERSTAND AND EXPLAIN ANY
ARTICLE OF THE CONSTITUTION OF THE UNITED STATES" TO THE SATISFACTION
OF VOTING REGISTRARS.  WE LIKEWISE AFFIRM HERE THE DISTRICT COURT'S
HOLDING THAT THE PROVISIONS OF THE LOUISIANA CONSTITUTION AND STATUTES
WHICH REQUIRE VOTERS TO SATISFY REGISTRARS OF THEIR ABILITY TO
"UNDERSTAND AND GIVE A REASONABLE INTERPRETATION OF ANY SECTION" OF THE
FEDERAL OR LOUISIANA CONSTITUTION VIOLATE THE CONSTITUTION.  AND WE
AGREE WITH THE DISTRICT COURT THAT IT SPECIFICALLY CONFLICTS WITH THE
PROHIBITIONS AGAINST DISCRIMINATION IN VOTING BECAUSE OF RACE FOUND
BOTH IN THE FIFTEENTH AMENDMENT AND 42 U.S.C. SEC. 1971(A) TO SUBJECT
CITIZENS TO SUCH AN ARBITRARY POWER AS LOUISIANA HAS GIVEN ITS
REGISTRARS UNDER THESE LAWS. 

                                            II. 

THIS LEAVES FOR CONSIDERATION THE DISTRICT COURT'S DECREE.  WE BEAR
IN MIND THAT THE COURT HAS NOT MERELY THE POWER BUT THE DUTY TO RENDER
A DECREE WHICH WILL SO FAR AS POSSIBLE ELIMINATE THE DISCRIMINATORY
EFFECTS OF THE PAST AS WELL AS BAR LIKE DISCRIMINATION IN THE FUTURE. 
LITTLE IF ANY OBJECTION IS RAISED TO THE PROPRIETY OF THE INJUNCTION
AGAINST FURTHER USE OF THE INTERPRETATION TEST AS IT STOOD AT THE TIME
THIS ACTION WAS BEGUN, AND WITHOUT FURTHER DISCUSSION WE AFFIRM THAT
PART OF THE DECREE. 

APPELLANTS' CHIEF ARGUMENT AGAINST THE DECREE CONCERNS THE EFFECT
WHICH SHOULD BE GIVEN THE NEW VOTER-QUALIFICATION TEST ADOPTED BY THE
BOARD OF REGISTRATION IN AUGUST 1962, PURSUANT TO STATUTE (FN15) AND
SUBSEQUENT CONSTITUTIONAL AMENDMENT (FN16) AFTER THIS SUIT HAD BEEN
FILED.  THE NEW TEST, SAYS THE STATE, IS A UNIFORM, OBJECTIVE,
STANDARDIZED "CITIZENSHIP" TEST ADMINISTERED TO ALL PROSPECTIVE VOTERS
ALIKE.  UNDER IT, ACCORDING TO THE STATE, AN APPLICANT IS "REQUIRED TO
INDISCRIMINATELY DRAW ONE OF TEN CARDS.  EACH CARD HAS SIX MULTIPLE
CHOICE QUESTIONS, FOUR OF WHICH THE APPLICANT MUST ANSWER CORRECTLY." 
CONFINING ITSELF TO THE ALLEGATIONS OF THE COMPLAINT, THE DISTRICT
COURT DID NOT PASS UPON THE VALIDITY OF THE NEW TEST, BUT DID TAKE IT
INTO CONSIDERATION IN FORMULATING THE DECREE.  (FN17)  THE COURT FOUND
THAT PAST DISCRIMINATION AGAINST NEGRO APPLICANTS IN THE 21 PARISHES
WHERE THE INTERPRETATION TEST HAD BEEN APPLIED HAD GREATLY REDUCED THE
PROPORTION OF POTENTIAL NEGRO VOTERS WHO WERE REGISTERED AS COMPARED
WITH THE PROPORTION OF WHITES.  MOST IF NOT ALL OF THOSE WHITE VOTERS
HAD BEEN PERMITTED TO REGISTER ON FAR LESS RIGOROUS TERMS THAN COLORED
APPLICANTS WHOSE APPLICATIONS WERE REJECTED.  SINCE THE NEW
"CITIZENSHIP" TEST DOES NOT PROVIDE FOR A REREGISTRATION OF VOTERS
ALREADY ACCEPTED BY THE REGISTRARS, IT WOULD AFFECT ONLY APPLICANTS NOT
ALREADY REGISTERED, AND WOULD NOT DISTURB THE ELIGIBILITY OF THE WHITE
VOTERS WHO HAD BEEN ALLOWED TO REGISTER WHILE DISCRIMINATORY PRACTICES
KEPT NEGROES FROM DOING SO.  IN THESE 21 PARISHES, WHILE THE
REGISTRATION OF WHITE PERSONS WAS INCREASING, THE NUMBER OF NEGROES
REGISTERED DECREASED FROM 25,361 TO 10,351.  UNDER THESE CIRCUMSTANCES
WE THINK THAT THE COURT WAS QUITE RIGHT TO DECREE THAT, AS TO PERSONS
WHO MET AGE AND RESIDENCE REQUIREMENTS DURING THE YEARS IN WHICH THE
INTERPRETATION TEST WAS USED, USE OF THE NEW "CITIZENSHIP" TEST SHOULD
BE POSTPONED IN THOSE 21 PARISHES WHERE REGISTRARS USED THE OLD
INTERPRETATION TEST UNTIL THOSE PARISHES HAVE ORDERED A COMPLETE
REREGISTRATION OF VOTERS, SO THAT THE NEW TEST WILL APPLY ALIKE TO ALL
OR TO NONE.  CF. UNITED STATES V. DUKE, 332 F.2D 759, 769-770 (C.A. 5TH
CIR.). 

IT ALSO WAS CERTAINLY AN APPROPRIATE EXERCISE OF THE DISTRICT COURT'S
DISCRETION TO ORDER REPORTS TO BE MADE EVERY MONTH CONCERNING THE
REGISTRATION OF VOTERS IN THESE 21 PARISHES, IN ORDER THAT THE COURT
MIGHT BE INFORMED AS TO WHETHER THE OLD DISCRIMINATORY PRACTICES REALLY
HAD BEEN ABANDONED IN GOOD FAITH.  THE NEED TO ERADICATE PAST EVIL
EFFECTS AND TO PREVENT THE CONTINUATION OR REPETITION IN THE FUTURE OF
THE DISCRIMINATORY PRACTICES SHOWN TO BE SO DEEPLY ENGRAINED IN THE
LAWS, POLICIES, AND TRADITIONS OF THE STATE OF LOUISIANA, COMPLETELY
JUSTIFIED THE DISTRICT COURT IN ENTERING THE DECREE IT DID AND IN
RETAINING JURISDICTION OF THE ENTIRE CASE TO HEAR ANY EVIDENCE OF
DISCRIMINATION IN OTHER PARISHES AND TO ENTER SUCH ORDERS AS JUSTICE
FROM TIME TO TIME MIGHT REQUIRE.  AFFIRMED. 

FN1  "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."  16 STAT. 140, 42
U.S.C. SEC. 1971(A) (1958 ED.). 

FN2  THE APPELLANTS DID NOT PRESENT ANY EVIDENCE.  BY STIPULATION ALL
THE GOVERNMENT'S EVIDENCE WAS PRESENTED IN WRITTEN FORM. 

FN3  LA. CONST. 1898, ART. 197, SEC. 5.  SEE GENERALLY EATON, THE
SUFFRAGE CLAUSE IN THE NEW CONSTITUTION OF LOUISIANA, 13 HARV. L. REV.
279. 

FN4  THE LOUISIANA CONSTITUTION OF 1868 FOR THE FIRST TIME PERMITTED
NEGROES TO VOTE.  LA.  CONST. 1868, ART. 98. 

FN5  LA. CONST. 1921, ART. VIII, SECS. 1(C), 1(D). 

FN6  SMITH V. ALLWRIGHT, 321 U.S. 649. 

FN7  BROWN V. BOARD OF EDUCATION, 347 U.S. 483. 

FN8  LA. ACTS 1960, NO. 613, AMENDING LA. CONST. ART. VIII, SEC.
1(D), PREVIOUSLY IMPLEMENTED IN LA. REV. STAT. SEC. 18:36.  UNDER THE
1921 CONSTITUTION THE REQUIREMENT THAT AN APPLICANT BE ABLE "TO
UNDERSTAND" A SECTION "READ TO HIM BY THE REGISTRAR" APPLIED ONLY TO
ILLITERATES.  LA.  CONST. 1921, ART. VIII, SEC. 1(D); COMPARE ID., SEC.
1(C). 

FN9  "ALTHOUGH THE VOTE-ABRIDGING PURPOSE AND EFFECT OF THE
INTERPRETATION TEST RENDER IT PER SE INVALID UNDER THE FIFTEENTH
AMENDMENT, IT IS ALSO PER SE INVALID UNDER THE FOURTEENTH AMENDMENT. 
THE VICES CANNOT BE CURED BY AN INJUNCTION ENJOINING ITS UNFAIR
APPLICATION."  225 F. SUPP., AT 391-392. 

FN10  IT IS ARGUED THAT THE MEMBERS OF THE STATE BOARD OF
REGISTRATION WERE NOT PROPERLY MADE DEFENDANTS BECAUSE THEY WERE "MERE
CONDUITS," WITHOUT AUTHORITY TO ENFORCE STATE REGISTRATION
REQUIREMENTS.  THE BOARD HAS THE POWER AND DUTY TO SUPERVISE
ADMINISTRATION OF THE INTERPRETATION TEST AND PRESCRIBE RULES AND
REGULATIONS FOR THE REGISTRARS TO FOLLOW IN APPLYING IT.  LA.  REV.
STAT. SEC. 18:191A; LA. CONST. ART. VIII, SEC. 18.  THE BOARD ALSO IS
BY STATUTE DIRECTED TO FASHION AND ADMINISTER THE NEW "CITIZENSHIP"
TEST.  LA. REV. STAT. SEC. 18:191A; LA. CONST.  ART. VIII, SEC. 18. 
AND THE BOARD HAS POWER TO REMOVE ANY REGISTRAR FROM OFFICE "AT WILL." 
LA.  CONST. ART. VIII, SEC. 18.  IN THESE CIRCUMSTANCES THE BOARD
MEMBERS WERE PROPERLY MADE DEFENDANTS.  COMPARE UNITED STATES V.
MISSISSIPPI, ANTE, AT 141-142. 

THERE IS ALSO NO MERIT IN THE ARGUMENT THAT THE REGISTRARS, WHO WERE
NOT DEFENDANTS IN THIS SUIT, WERE INDISPENSABLE PARTIES.  THE
REGISTRARS HAVE NO PERSONAL INTEREST IN THE OUTCOME OF THIS CASE AND
ARE BOUND TO FOLLOW THE DIRECTIONS OF THE STATE BOARD OF REGISTRATION. 

FN11  LOUISIANA SENATE JOURNAL, 1898, P. 33. 

FN12  IBID. 

FN13  KERNAN, THE CONSTITUTIONAL CONVENTION OF 1898 AND ITS WORK,
PROCEEDINGS OF THE LOUISIANA BAR ASSOCIATION FOR 1898-1899, PP. 59-60. 

FN14  225 F. SUPP., AT 384. 

FN15  LA. ACTS 1962, NO. 62, AMENDING LA. REV. STAT. 18:191A. 

FN16  LA. ACTS 1962, NO. 539, AMENDING LA. CONST. ART. VIII, SEC.
18. 

FN17  LIKE THE DISTRICT COURT, WE EXPRESS NO OPINION AS TO THE
CONSTITUTIONALITY OF THE NEW "CITIZENSHIP" TEST.  ANY QUESTION AS TO
THAT POINT IS SPECIFICALLY RESERVED.  THAT TEST WAS NEVER CHALLENGED IN
THE COMPLAINT OR ANY OTHER PLEADING.  THE DISTRICT COURT SAID "WE
REPEAT THAT THIS DECISION DOES NOT TOUCH UPON THE CONSTITUTIONALITY OF
THE CITIZENSHIP TEST AS A STATE QUALIFICATION FOR VOTING."  225 F.
SUPP., AT 397.  THE SOLICITOR GENERAL DID NOT CHALLENGE THE VALIDITY OF
THE NEW TEST IN THIS COURT EITHER IN BRIEFS OR IN ORAL ARGUMENT, BUT
INSTEAD RECOGNIZED SPECIFICALLY THAT THAT ISSUE WAS NOT BEFORE US IN
THIS CASE.  AND AT ORAL ARGUMENT IN THIS COURT THE ATTORNEY FOR THE
UNITED STATES STATED THAT THE GOVERNMENT HAS PENDING IN A LOWER COURT A
NEW SUIT CHALLENGING REGISTRATION PROCEDURES IN LOUISIANA "UNDER THE
NEW REGIME," I.E., EMPLOYED SUBSEQUENT TO THE INVALIDATION OF THE
INTERPRETATION TEST IN THIS CASE.  THE NEW "CITIZENSHIP" TEST, HE SAID,
"IS SIMPLY NOT AN ISSUE IN THIS PROCEEDING AND WAS NOT INVALIDATED IN
THE LOWER COURT AND WE ARE NOT HERE CHALLENGING IT." 

MR. JUSTICE HARLAN CONSIDERS THAT THE CONSTITUTIONAL CONCLUSIONS
REACHED IN THIS OPINION CAN PROPERLY BE BASED ONLY ON THE PROVISIONS OF
THE FIFTEENTH AMENDMENT.  IN ALL OTHER RESPECTS, HE FULLY SUBSCRIBES TO
THIS OPINION. 
..END :

















UNITED STATES V. BOSTON & MAINE RAILROAD CO. 380 U.S. 157 


NO. 232.  ARGUED JANUARY 21, 1965.  - DECIDED MARCH 8, 1965.  - 225 F.
SUPP. 577, VACATED AND REMANDED. 


APPELLEES, A RAILROAD AND THREE OF ITS OFFICERS, WERE INDICTED UNDER
SEC. 10 OF THE CLAYTON ACT FOR PARTICIPATING IN THE NONCOMPETITIVE SALE
OF EQUIPMENT TO ANOTHER CORPORATION IN WHICH THE OFFICERS HAD A
"SUBSTANTIAL INTEREST," DESCRIBED IN A BILL OF PARTICULARS AS AN
AGREEMENT FOR SUBSTANTIAL PAYMENT TO THE INDIVIDUAL APPELLEES FOR
EFFECTING THE SALE.  HOLDING THAT SEC. 10 APPLIES TO A "THEN PRESENT
LEGAL INTEREST," AND NOT ONE DEPENDENT ON THE OUTCOME OF AN ILLEGAL
PLAN, THE DISTRICT COURT DISMISSED THE INDICTMENT.  HELD: 

1.  UNDER THE STRICT CONSTRUCTION APPLICABLE TO A CRIMINAL STATUTE,
THE WORDS "SUBSTANTIAL INTEREST" IN SEC. 10 PRESUPPOSE, NOT BRIBERY
(WHICH THE INDICTMENT HERE IN EFFECT CHARGES) UNDER A CONFLICT OF
INTEREST LAW, BUT EITHER AN EXISTING INVESTMENT IN THE PURCHASER, THE
CREATION OF THE PURCHASER FOR THE USE OF THOSE ACTING FOR THE SELLER,
OR A JOINT VENTURE OR CONTINUED COURSE OF DEALINGS FOR PROFIT SHARING
WITH THE PURCHASER, EACH OF WHICH WOULD BE WITHIN THE CONCEPT OF THIS
ANTITRUST STATUTE.  PP. 160-162. 

2.  SINCE AN AMENDED BILL OF PARTICULARS MAY BE FILED UNDER RULE 7(F)
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, THE CASE IS VACATED AND
REMANDED.  P. 162. 

UNITED STATES V. BOSTON & MAINE RAILROAD ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL UNDER THE CRIMINAL APPEALS ACT, 18 U.S.C.
SEC. 3731, FROM THE DISTRICT COURT'S ORDER DISMISSING COUNT I OF AN
INDICTMENT (225 F. SUPP. 577) FOR FAILURE TO STATE AN OFFENSE UNDER
SEC. 10 OF THE CLAYTON ACT, 38 STAT. 734, 15 U.S.C. SEC. 20.  THAT

"NO COMMON CARRIER ENGAGED IN COMMERCE SHALL HAVE ANY DEALINGS IN
SECURITIES, SUPPLIES, OR OTHER ARTICLES OF COMMERCE, OR SHALL MAKE OR
HAVE ANY CONTRACTS FOR CONSTRUCTION OR MAINTENANCE OF ANY KIND, TO THE
AMOUNT OF MORE THAN $50,000, IN THE AGGREGATE, IN ANY ONE YEAR, WITH
ANOTHER CORPORATION, FIRM, PARTNERSHIP, OR ASSOCIATION WHEN THE SAID
COMMON CARRIER SHALL HAVE UPON ITS BOARD OF DIRECTORS OR AS ITS
PRESIDENT, MANAGER, OR AS ITS PURCHASING OR SELLING OFFICER, OR AGENT
IN THE PARTICULAR TRANSACTION, ANY PERSON WHO IS AT THE SAME TIME A
DIRECTOR, MANAGER, OR PURCHASING OR SELLING OFFICER OF, OR WHO HAS ANY
SUBSTANTIAL INTEREST IN, SUCH OTHER CORPORATION, FIRM, PARTNERSHIP, OR
ASSOCIATION, UNLESS AND EXCEPT SUCH PURCHASES SHALL BE MADE FROM, OR
SUCH DEALINGS SHALL BE WITH, THE BIDDER WHOSE BID IS THE MOST FAVORABLE
TO SUCH COMMON CARRIER, TO BE ASCERTAINED BY COMPETITIVE BIDDING UNDER
REGULATIONS TO BE PRESCRIBED BY RULE OR OTHERWISE BY THE INTERSTATE
COMMERCE COMMISSION  ...  ." 

COUNT I CHARGED THAT APPELLEE RAILROAD AND THE THREE OTHER APPELLEES,
OFFICERS OF THE RAILROAD, VIOLATED SEC. 10 BY THE ROAD'S SALE ON AUGUST
14, 1958, OF 10 COACHES VALUED IN EXCESS OF $50,000 TO THE
INTERNATIONAL RAILWAY EQUIPMENT CORP. IN WHICH THE THREE OFFICERS HAD
"A SUBSTANTIAL INTEREST," COMPETITIVE BIDDING NOT HAVING BEEN USED. 
THAT COUNT CHARGED THAT APPELLEE MCGINNIS KNOWINGLY VOTED FOR THE SALE
AND THAT ALL THREE APPELLEE OFFICERS KNOWINGLY DIRECTED THE ACT.  A
BILL OF PARTICULARS (FN1) DESCRIBED THE "SUBSTANTIAL INTEREST" OF THOSE
OFFICERS IN THE PURCHASING CORPORATION AS FOLLOWS: 

"THE SUBSTANTIAL INTEREST OF DEFENDANTS MCGINNIS AND GLACY IN
DEFENDANT INTERNATIONAL CONSISTED OF AN UNDERSTANDING, AGREEMENT,
RELATIONSHIP, ARRANGEMENT AND CONCERT OF ACTION AMONG THE SAID
DEFENDANTS MCGINNIS, GLACY, AND INTERNATIONAL, AND OTHERS, FOR, AMONG
OTHER THINGS, THE PURPOSE OF PRODUCING PROFITS FOR INTERNATIONAL FROM
DEALINGS BY IT IN PROPERTY ACQUIRED FROM THE B&M THROUGH THE
INTERVENTION, DIRECTION OR ASSISTANCE OF DEFENDANTS MCGINNIS, GLACY,
AND BENSON, AND PURSUANT TO WHICH DEFENDANTS MCGINNIS, GLACY, AND
BENSON WERE TO AND DID RECEIVE SUBSTANTIAL MONIES." 

THE DISTRICT COURT HELD: 

"THE STATUTE IS LIMITED TO ONE WHO HAS A THEN PRESENT LEGAL INTEREST
IN THE BUYING CORPORATION AND DOES NOT INCLUDE ONE WHOSE ONLY INTEREST
IS IN THE OUTCOME OF WHAT MAY HAVE BEEN AN ILLEGAL AND ILLICIT PLAN TO
SIPHON OFF FOR HIS PERSONAL BENEFIT PROPERTY OF THE BOSTON AND MAIN
RAILROAD THROUGH THE MEDIUM OF INTERNATIONAL."  225 F. SUPP., AT 578. 

A CRIMINAL STATUTE IS TO BE CONSTRUED STRICTLY, NOT LOOSELY.  SUCH
ARE THE TEACHINGS OF OUR CASES FROM UNITED STATES V. WILTBERGER, 5
WHEAT.  76, DOWN TO THIS DAY.  CHIEF JUSTICE MARSHALL SAID IN THAT
CASE: 

"THE RULE THAT PENAL LAWS ARE TO BE CONSTRUED STRICTLY, IS, PERHAPS,
NOT MUCH LESS OLD THAN CONSTRUCTION ITSELF.  IT IS FOUNDED ON THE
TENDERNESS OF THE LAW FOR THE RIGHTS OF INDIVIDUALS; AND ON THE PLAIN
PRINCIPLE THAT THE POWER OF PUNISHMENT IS VESTED IN THE LEGISLATIVE,
NOT IN THE JUDICIAL DEPARTMENT."  ID., P. 95. 

THE FACT THAT A PARTICULAR ACTIVITY MAY BE WITHIN THE SAME GENERAL
CLASSIFICATION AND POLICY OF THOSE COVERED DOES NOT NECESSARILY BRING
IT WITHIN THE AMBIT OF THE CRIMINAL PROHIBITION.  UNITED STATES V.
WEITZEL, 246 U.S. 533. 

WHAT IS THE REACH OF SEC. 10?  IT IS NOT STRICTLY A CONFLICT OF
INTEREST STATUTE SUCH AS WE DEALT WITH IN UNITED STATES V. MISSISSIPPI
VALLEY CO., 364 U.S. 520.  IN MINNEAPOLIS & ST. LOUIS R. CO. V. UNITED
STATES, 361 U.S. 173, 190, WE DESCRIBED SEC. 10 AS "AN ANTITRUST LAW." 

CONGRESS OF JANUARY 20, 1914, ON THE SUBJECT OF "TRUSTS," IN WHICH HE
DENOUNCED THE ABUSES OF "INTERLOCKINGS OF THE PERSONNEL OF THE
DIRECTORATES OF GREAT CORPORATIONS."  51 CONG. REC. 1962-1964; H.R.
REP. NO. 627, 63D CONG., 2D SESS., PP. 17-18.  SECTION 10 STARTED AS
PART OF SEC. 9 OF THE HOUSE BILL AND FORBADE CERTAIN TYPES OF
INTERLOCKING OFFICE-HOLDING.  SEE S. DOC. NO. 584, 63D CONG., 2D SESS.,
P. 10.  THE SENATE MADE TWO MAIN CHANGES.  FIRST, IT DID NOT PROHIBIT
INTERLOCKING OFFICEHOLDING BUT SEIZED RATHER ON COMPETITIVE BIDDING AS
THE CONTROL.  S. REP. NO. 698, 63D CONG., 2D SESS., PP. 47-48.  SECOND,
THE SENATE REQUIRED COMPETITIVE BIDDING NOT ONLY WHEN A DIRECTOR OR
OTHER OFFICER OR AGENT OF A COMMON CARRIER WAS ALSO A DIRECTOR OR OTHER
OFFICER OF ANY FIRM WITH WHICH THE CARRIER HAD DEALINGS TO THE AMOUNT
OF MORE THAN $50,000 IN ANY ONE YEAR, BUT ALSO WHEN THE DIRECTOR OR
OTHER OFFICER OF A COMMON CARRIER HAD "ANY DIRECT OR INDIRECT INTEREST
IN" THE OTHER FIRM.  S. DOC. NO. 584, 63D CONG., 2D SESS., P. 13.  THE
CONFERENCE CHANGED THE PHRASE "ANY DIRECT OR INDIRECT INTEREST IN" TO
THE PRESENT WORDING "ANY SUBSTANTIAL INTEREST IN."  ID., PP. 13-14.  AS
SENATOR CHILTON, ONE OF THE CONFEREES, REPORTED: 

"  ...  IT NOT ONLY PREVENTS CORPORATIONS WHICH ARE INTERLOCKED BY
OFFICERS AND DIRECTORS, BUT IT SAYS:  'OR WHO HAS ANY SUBSTANTIAL
INTEREST IN SUCH OF THEM.' 

"THE SENATOR WILL RECALL ALL WE HAD BEFORE US, THE EASE BY WHICH
INTERLOCKING DIRECTORATES COULD BE GOTTEN AROUND; IN OTHER WORDS, YOU
COULD HAVE YOUR SON, OR YOUR COUSIN, OR YOUR LAWYER, OR YOUR AGENT UPON
THE CORPORATION AND ACCOMPLISH THE SAME THING AS IF YOU WERE ON THE
BOARD YOURSELF  ... 

     *         *         *  *         * 

"  ...  THEY CAN NOT DODGE IT BY HAVING A SUPPLY COMPANY, AND EVEN
THOUGH THEY HAVE DISCARDED THE FORM OF INTERLOCKING DIRECTORS, IF THERE
BE THE INTEREST OF THE RAILROAD OR THE COMMON CARRIER IN THE SUPPLY
COMPANY, AS THE SENATOR CHOOSES TO CALL IT, THEN IT IS PROHIBITED."  51
CONG. REC. 15943. 

AS WE HAVE SEEN, COUNT I CHARGES A "TRANSACTION" TO SELL 10 COACHES
TO INTERNATIONAL, AND THE BILL OF PARTICULARS SUGGESTS THAT IT WAS
AGREED THAT THE THREE INDIVIDUAL APPELLEES WOULD RECEIVE "SUBSTANTIAL
MONIES" FOR THEIR PART IN EFFECTING THE SALE.  IT IS EARNESTLY URGED
THAT SINCE THOSE APPELLEES STOOD TO PROFIT FROM THE DEAL WITH
INTERNATIONAL, THEY HAD A "SUBSTANTIAL INTEREST IN" INTERNATIONAL
WITHIN THE MEANING OF SEC. 10.  IT IS POINTED OUT THAT THE RAILROAD
SCANDALS OF THAT AGE WERE NOT LIMITED TO INTERLOCKING DIRECTORATES AND
MULTIPLE SHAREHOLDING, BUT THAT SUPPLIERS OF RAILROAD MATERIALS HAD
MADE SUBSTANTIAL GIFTS TO THE RAILROAD OFFICIALS WITH WHOM THEY DEALT. 
SEE IN RE FINANCIAL TRANSACTIONS OF THE NEW YORK, N.H.&H.R. CO., 31
I.C.C.  32.  (FN2)  BUT WE ARE CONFINED BY THE WORDS THAT CONGRESS USED
IN SEC. 10.  IF THE RULE OF STRICT CONSTRUCTION IS TO BE FOLLOWED, THE
WORDS "SUBSTANTIAL INTEREST IN," AS USED IN SEC. 10, PRESUPPOSE EITHER
AN EXISTING INVESTMENT OF SOME KIND IN INTERNATIONAL, OR THE CREATION
OF INTERNATIONAL BY THE THREE INDIVIDUAL APPELLEES FOR THEIR USE, OR A
JOINT VENTURE OR CONTINUED COURSE OF DEALINGS, LICIT OR ILLICIT, WITH
INTERNATIONAL FOR PROFIT SHARING.  BUT IT IS DOUBTFUL THAT THIS
INDICTMENT, AS ILLUMINATED BY THE BILL OF PARTICULARS, ALLEGES ANYTHING
MORE IN SUBSTANCE THAN A BRIBE.  BRIBERY MIGHT WELL BE IN THE FAMILY OF
OFFENSES COVERED UNDER A CONFLICT OF INTEREST STATUTE.  BUT IT IS MORE
REMOTE FROM AN ANTITRUST FRAME OF REFERENCE.  WHILE HISTORY SHOWS A
RATHER WIDE PATTERN OF RAILROAD MISCONDUCT LEADING TO SEC. 10, THAT
CONCEPTUALLY WITHIN THE ANTITRUST PHILOSOPHY.  WE CANNOT BROADEN IT TO
INCLUDE THE PRESENT CASE, UNLESS WE ATTRIBUTE TO CONGRESS A PURPOSE TO
MAKE IT A MORE GENERAL PANACEA FOR CONFLICT OF INTEREST ACTIVITIES; BUT
NEITHER DO WE TAKE THE SAME NARROW VIEW OF THE STATUTE AS THE DISTRICT
COURT. 

SINCE THE GOVERNMENT MAY CHOOSE TO FILE, AND THE DISTRICT COURT MAY
CHOOSE TO ALLOW, AN AMENDED BILL OF PARTICULARS, (FN3) WE VACATE AND
REMAND THE CASE, LEAVING OPEN ALL QUESTIONS EXCEPT OUR CONSTRUCTION OF
THE STATUTE.  VACATED AND REMANDED. 

FN1  THIS CASE WAS DECIDED BELOW AND ARGUED HERE ON THE ASSUMPTION
THAT, ALTHOUGH THE INDICTMENT ITSELF WAS SUFFICIENT AGAINST A MOTION TO
DISMISS, IT BECAME INSUFFICIENT FOR THAT PURPOSE BY REASON OF THE BILL
OF PARTICULARS.  WE HAVE HELD, HOWEVER, THAT "THE BILL OF PARTICULARS
...  FORMS NO PART OF THE RECORD FOR THE PURPOSES OF THE DEMURRER." 
UNITED STATES V. COMYNS, 248 U.S. 349, 353; DUNLOP V. UNITED STATES,
165 U.S. 486.  SINCE THE PARTIES HAVE MADE NO ATTEMPT TO INVOKE THIS
RULE AT ANY STAGE IN THIS PROCEEDING, WE ARE NOT REQUIRED TO EXPRESS
ANY VIEW AS TO WHETHER THIS RULE FOR DEMURRERS IS APPLICABLE ON MOTIONS
TO DISMISS UNDER RULE 12, FED.  RULES CRIM. PROC. 

FN2  THE COMMISSION REPORTED:  "PURCHASES OF CARS AND COAL ARE TWO
LARGE EXPENDITURES THAT RAILROADS MAKE.  THE NEW HAVEN PURCHASED CARS
ALMOST EXCLUSIVELY FROM JAMES B. BRADY WITHOUT COMPETITION AND TO THE
EXTENT OF SOME $37,000,000.  MR. BRADY, AS A WITNESS, MADE NO SECRET OF
HIS GENEROSITY TO THE OFFICIALS WITH WHOM HE HAD BUSINESS.  HIS METHODS
WERE JUSTIFIED BY HIM ON THE GROUND THAT THE OFFICERS OF THE NEW HAVEN
WERE OLD FRIENDS."  31 I.C.C., AT 61. 

FN3  RULE 7(F) OF THE RULES OF CRIMINAL PROCEDURE PROVIDES, "A BILL
OF PARTICULARS MAY BE AMENDED AT ANY TIME SUBJECT TO SUCH CONDITIONS AS
JUSTICE REQUIRES." 
..END :





UNITED STATES V. SEEGER 380 U.S. 163 


NO. 50.  ARGUED NOVEMBER 16-17, 1964.  - DECIDED MARCH 8, 1965.* - 326
F.2D 846 AND 325 F.2D 409, AFFIRMED; 324 F.2D 173, REVERSED. 

*TOGETHER WITH NO. 51, UNITED STATES V. JAKOBSON, ON CERTIORARI TO
THE SAME COURT, AND NO. 29, PETER V. UNITED STATES, ON CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 


THESE THREE CASES INVOLVE THE EXEMPTION CLAIMS UNDER SEC. 6(J) OF THE
UNIVERSAL MILITARY TRAINING AND SERVICE ACT OF CONSCIENTIOUS OBJECTORS
WHO DID NOT BELONG TO AN ORTHODOX RELIGIOUS SECT.  SECTION 6(J) EXCEPTS
FROM COMBATANT SERVICE IN THE ARMED FORCES THOSE WHO ARE
CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR BY REASON OF THEIR
"RELIGIOUS TRAINING AND BELIEF," I.E., BELIEF IN AN INDIVIDUAL'S
RELATION TO A SUPREME BEING INVOLVING DUTIES BEYOND A HUMAN
RELATIONSHIP BUT NOT ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR
PHILOSOPHICAL VIEWS OR A MERELY PERSONAL MORAL CODE.  IN ALL THE CASES
CONVICTIONS WERE OBTAINED IN THE DISTRICT COURTS FOR REFUSAL TO SUBMIT
TO INDUCTION IN THE ARMED FORCES; IN NOS. 50 AND 51 THE COURT OF
APPEALS REVERSED AND IN NO. 29 THE CONVICTION WAS AFFIRMED.  HELD: 

1.  THE TEST OF RELIGIOUS BELIEF WITHIN THE MEANING OF THE EXEMPTION
IN SEC. 6(J) IS WHETHER IT IS A SINCERE AND MEANINGFUL BELIEF OCCUPYING
IN THE LIFE OF ITS POSSESSOR A PLACE PARALLEL TO THAT FILLED BY THE GOD
OF THOSE ADMITTEDLY QUALIFIED FOR THE EXEMPTION.  PP. 173-180. 

(A)  THE EXEMPTION DOES NOT COVER THOSE WHO OPPOSE WAR FROM A MERELY
PERSONAL MORAL CODE NOR THOSE WHO DECIDE THAT WAR IS WRONG ON THE BASIS
OF ESSENTIALLY POLITICAL, SOCIOLOGICAL OR ECONOMIC CONSIDERATIONS
RATHER THAN RELIGIOUS BELIEF.  P. 173. 

(B)  THERE IS NO ISSUE HERE OF ATHEISTIC BELIEFS AND ACCORDINGLY THE
DECISION DOES NOT DEAL WITH THAT QUESTION.  PP. 173-174. 

(C)  THIS TEST ACCORDS WITH LONG-ESTABLISHED LEGISLATIVE POLICY OF
EQUAL TREATMENT FOR THOSE WHOSE OBJECTION TO MILITARY SERVICE IS BASED
ON RELIGIOUS BELIEFS.  PP. 177-180. 

2.  LOCAL BOARDS AND COURTS ARE TO DECIDE WHETHER THE OBJECTOR'S
BELIEFS ARE SINCERELY HELD AND WHETHER THEY ARE, IN HIS OWN SCHEME OF
THINGS, RELIGIOUS; THEY ARE NOT TO REQUIRE PROOF OF THE RELIGIOUS
DOCTRINES NOR ARE THEY TO REJECT BELIEFS BECAUSE THEY ARE NOT
COMPREHENSIBLE.  PP. 184-185. 

3.  UNDER THE BROAD CONSTRUCTION APPLICABLE TO SEC. 6(J) THE
APPLICATIONS INVOLVED IN THESE CASES, NONE OF WHICH WAS BASED ON MERELY
PERSONAL MORAL CODES, QUALIFIED FOR EXEMPTION.  PP. 185-188. 

UNITED STATES V. SEEGER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE CLAIMS OF CONSCIENTIOUS OBJECTORS UNDER SEC. 6(J)
OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 50 U.S.C. APP. SEC.
456(J) (1958 ED.), WHICH EXEMPTS FROM COMBATANT TRAINING AND SERVICE IN
THE ARMED FORCES OF THE UNITED STATES THOSE PERSONS WHO BY REASON OF
THEIR RELIGIOUS TRAINING AND BELIEF ARE CONSCIENTIOUSLY OPPOSED TO
PARTICIPATION IN WAR IN ANY FORM.  THE CASES WERE CONSOLIDATED FOR
ARGUMENT AND WE CONSIDER THEM TOGETHER ALTHOUGH EACH INVOLVES DIFFERENT
FACTS AND CIRCUMSTANCES.  THE PARTIES RAISE THE BASIC QUESTION OF THE
CONSTITUTIONALITY OF THE SECTION WHICH DEFINES THE TERM "RELIGIOUS
TRAINING AND BELIEF," AS USED IN THE ACT, AS "AN INDIVIDUAL'S BELIEF IN
A RELATION TO A SUPREME BEING INVOLVING DUTIES SUPERIOR TO THOSE
ARISING FROM ANY HUMAN RELATION BUT NOT INCLUDING ESSENTIALLY
POLITICAL, SOCIOLOGICAL, OR PHILOSOPHICAL VIEWS OR A MERELY PERSONAL
MORAL CODE."  THE CONSTITUTIONAL ATTACK IS LAUNCHED UNDER THE FIRST
AMENDMENT'S ESTABLISHMENT AND FREE EXERCISE CLAUSES AND IS TWOFOLD:
(1) THE SECTION DOES NOT EXEMPT NONRELIGIOUS CONSCIENTIOUS OBJECTORS;
AND (2) IT DISCRIMINATES BETWEEN DIFFERENT FORMS OF RELIGIOUS
EXPRESSION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  JAKOBSON (NO. 51) AND PETER (NO. 29) ALSO CLAIM THAT THEIR
BELIEFS COME WITHIN THE MEANING OF THE SECTION.  JAKOBSON CLAIMS THAT
HE MEETS THE STANDARDS OF SEC. 6(J) BECAUSE HIS OPPOSITION TO WAR IS
BASED ON BELIEF IN A SUPREME REALITY AND IS THEREFORE AN OBLIGATION
SUPERIOR TO ONE RESULTING FROM MAN'S RELATIONSHIP TO HIS FELLOW MAN. 
PETER CONTENDS THAT HIS OPPOSITION TO WAR DERIVES FROM HIS ACCEPTANCE
OF THE EXISTENCE OF A UNIVERSAL POWER BEYOND THAT OF MAN AND THAT THIS
ACCEPTANCE IN FACT CONSTITUTES BELIEF IN A SUPREME BEING, QUALIFYING
HIM FOR EXEMPTION.  WE GRANTED CERTIORARI IN EACH OF THE CASES BECAUSE
OF THEIR IMPORTANCE IN THE ADMINISTRATION OF THE ACT.  377 U.S. 922. 

WE HAVE CONCLUDED THAT CONGRESS, IN USING THE EXPRESSION "SUPREME
BEING" RATHER THAN THE DESIGNATION "GOD," WAS MERELY CLARIFYING THE
MEANING OF RELIGIOUS TRAINING AND BELIEF SO AS TO EMBRACE ALL RELIGIONS
AND TO EXCLUDE ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR PHILOSOPHICAL
VIEWS.  WE BELIEVE THAT UNDER THIS CONSTRUCTION, THE TEST OF BELIEF "IN
A RELATION TO A SUPREME BEING" IS WHETHER A GIVEN BELIEF THAT IS
SINCERE AND MEANINGFUL OCCUPIES A PLACE IN THE LIFE OF ITS POSSESSOR
PARALLEL TO THAT FILLED BY THE ORTHODOX BELIEF IN GOD OF ONE WHO
CLEARLY QUALIFIES FOR THE EXEMPTION.  WHERE SUCH BELIEFS HAVE PARALLEL
POSITIONS IN THE LIVES OF THEIR RESPECTIVE HOLDERS WE CANNOT SAY THAT
ONE IS "IN A RELATION TO A SUPREME BEING" AND THE OTHER IS NOT.  WE
HAVE CONCLUDED THAT THE BELIEFS OF THE OBJECTORS IN THESE CASES MEET
THESE CRITERIA, AND, ACCORDINGLY, WE AFFIRM THE JUDGMENTS IN NOS. 50
AND 51 AND REVERSE THE JUDGMENT IN NO. 29. 

                               THE FACTS IN THE CASES. 

NO. 50:  SEEGER WAS CONVICTED IN THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK OF HAVING REFUSED TO SUBMIT TO INDUCTION IN THE
ARMED FORCES.  HE WAS ORIGINALLY CLASSIFIED 1-A IN 1953 BY HIS LOCAL
BOARD, BUT THIS CLASSIFICATION WAS CHANGED IN 1955 TO 2-S (STUDENT) AND
HE REMAINED IN THIS STATUS UNTIL 1958 WHEN HE WAS RECLASSIFIED 1-A.  HE
FIRST CLAIMED EXEMPTION AS A CONSCIENTIOUS OBJECTOR IN 1957 AFTER
SUCCESSIVE ANNUAL RENEWALS OF HIS STUDENT CLASSIFICATION.  ALTHOUGH HE
DID NOT ADOPT VERBATIM THE PRINTED SELECTIVE SERVICE SYSTEM FORM, HE
DECLARED THAT HE WAS CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN
ANY FORM BY REASON OF HIS "RELIGIOUS" BELIEF; THAT HE PREFERRED TO
LEAVE THE QUESTION AS TO HIS BELIEF IN A SUPREME BEING OPEN, "RATHER
THAN ANSWER 'YES' OR 'NO'"; THAT HIS "SKEPTICISM OR DISBELIEF IN THE
EXISTENCE OF GOD" DID "NOT NECESSARILY MEAN LACK OF FAITH IN ANYTHING
WHATSOEVER"; THAT HIS WAS A "BELIEF IN AND DEVOTION TO GOODNESS AND
VIRTUE FOR THEIR OWN SAKES, AND A RELIGIOUS FAITH IN A PURELY ETHICAL
CREED."  R. 69-70, 73.  HE CITED SUCH PERSONAGES AS PLATO, ARISTOTLE
AND SPINOZA FOR SUPPORT OF HIS ETHICAL BELIEF IN INTELLECTUAL AND MORAL
INTEGRITY "WITHOUT BELIEF IN GOD, EXCEPT IN THE REMOTEST SENSE."  R.
73.  HIS BELIEF WAS FOUND TO BE SINCERE, HONEST, AND MADE IN GOOD
FAITH; AND HIS CONSCIENTIOUS OBJECTION TO BE BASED UPON INDIVIDUAL
TRAINING AND BELIEF, BOTH OF WHICH INCLUDED RESEARCH IN RELIGIOUS AND
CULTURAL FIELDS.  SEEGER'S CLAIM, HOWEVER, WAS DENIED SOLELY BECAUSE IT
WAS NOT BASED UPON A "BELIEF IN A RELATION TO A SUPREME BEING" AS
REQUIRED BY SEC. 6(J) OF THE ACT.  AT TRIAL SEEGER'S COUNSEL ADMITTED
THAT SEEGER'S BELIEF WAS NOT IN RELATION TO A SUPREME BEING AS COMMONLY
UNDERSTOOD, BUT CONTENDED THAT HE WAS ENTITLED TO THE EXEMPTION BECAUSE
"UNDER THE PRESENT LAW MR. SEEGER'S POSITION WOULD ALSO INCLUDE
DEFINITIONS OF RELIGION WHICH HAVE BEEN STATED MORE RECENTLY," R. 49,
AND COULD BE "ACCOMMODATED" UNDER THE DEFINITION OF RELIGIOUS TRAINING
AND BELIEF IN THE ACT, R. 53.  HE WAS CONVICTED AND THE COURT OF
APPEALS REVERSED, HOLDING THAT THE SUPREME BEING REQUIREMENT OF THE
COMPELLED BELIEFS" AND WAS, THEREFORE, AN "IMPERMISSIBLE
CLASSIFICATION" UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 
326 F.2D 846. 

NO. 51:  JAKOBSON WAS ALSO CONVICTED IN THE SOUTHERN DISTRICT OF NEW
YORK ON A CHARGE OF REFUSING TO SUBMIT TO INDUCTION.  ON HIS APPEAL THE
COURT OF APPEALS REVERSED ON THE GROUND THAT REJECTION OF HIS CLAIM MAY
HAVE RESTED ON THE FACTUAL FINDING, ERRONEOUSLY MADE, THAT HE DID NOT
BELIEVE IN A SUPREME BEING AS REQUIRED BY SEC. 6(J).  325 F.2D 409. 

JAKOBSON WAS ORIGINALLY CLASSIFIED 1-A IN 1953 AND INTERMITTENTLY
ENJOYED A STUDENT CLASSIFICATION UNTIL 1956.  IT WAS NOT UNTIL APRIL
1958 THAT HE MADE CLAIM TO NONCOMBATANT CLASSIFICATION (1-A-O) AS A
CONSCIENTIOUS OBJECTOR.  HE STATED ON THE SELECTIVE SERVICE SYSTEM FORM
THAT HE BELIEVED IN A "SUPREME BEING" WHO WAS "CREATOR OF MAN" IN THE
SENSE OF BEING "ULTIMATELY RESPONSIBLE FOR THE EXISTENCE OF" MAN AND
WHO WAS "THE SUPREME REALITY" OF WHICH "THE EXISTENCE OF MAN IS THE
RESULT."  R. 44.  HE EXPLAINED THAT HIS RELIGIOUS AND SOCIAL THINKING
HAD DEVELOPED AFTER MUCH MEDITATION AND THOUGHT.  HE HAD CONCLUDED THAT
MAN MUST BE "PARTLY SPIRITUAL" AND, THEREFORE, "PARTLY AKIN TO THE
SUPREME REALITY"; AND THAT HIS "MOST IMPORTANT RELIGIOUS LAW" WAS THAT
"NO MAN OUGHT EVER TO WILFULLY SACRIFICE ANOTHER MAN'S LIFE AS A MEANS
TO ANY OTHER END  ...  ."  R. 45-46.  IN DECEMBER 1958 HE REQUESTED A 1
O CLASSIFICATION SINCE HE FELT THAT PARTICIPATION IN ANY FORM OF
MILITARY SERVICE WOULD INVOLVE HIM IN "TOO MANY SITUATIONS AND
RELATIONSHIPS THAT WOULD BE A STRAIN ON HIS CONSCIENCE THAT HE FELT HE
MUST AVOID."  R. 70.  HE SUBMITTED A LONG MEMORANDUM OF "NOTES ON
RELIGION" IN WHICH HE DEFINED RELIGION AS THE "SUM AND ESSENCE OF ONE'S
BASIC ATTITUDES TO THE FUNDAMENTAL PROBLEMS OF HUMAN EXISTENCE," R. 72;
HE SAID THAT HE BELIEVED IN "GODNESS" WHICH WAS "THE ULTIMATE CAUSE FOR
THE FACT OF THE BEING OF THE UNIVERSE"; THAT TO DENY ITS EXISTENCE
WOULD BUT DENY THE EXISTENCE OF THE UNIVERSE BECAUSE "ANYTHING THAT IS,
HAS AN ULTIMATE CAUSE FOR ITS BEING."  R. 73.  THERE WAS A RELATIONSHIP
TO GODNESS, HE STATED, IN TWO DIRECTIONS, I.E., "VERTICALLY, TOWARDS
GODNESS DIRECTLY," AND "HORIZONTALLY, TOWARDS GODNESS THROUGH MANKIND
AND THE WORLD."  R. 74.  HE ACCEPTED THE LATTER ONE.  THE BOARD
CLASSIFIED HIM 1-A-O AND JAKOBSON APPEALED.  THE HEARING OFFICER FOUND
THAT THE CLAIM WAS BASED UPON A PERSONAL MORAL CODE AND THAT HE WAS NOT
SINCERE IN HIS CLAIM.  THE APPEAL BOARD CLASSIFIED HIM 1-A.  IT DID NOT
INDICATE UPON WHAT GROUND IT BASED ITS DECISION, I.E., INSINCERITY OR A
CONCLUSION THAT HIS BELIEF WAS ONLY A PERSONAL MORAL CODE.  THE COURT
OF APPEALS REVERSED, FINDING THAT HIS CLAIM CAME WITHIN THE
REQUIREMENTS OF SEC. 6(J).  BECAUSE IT COULD NOT DETERMINE WHETHER THE
APPEAL BOARD HAD FOUND THAT JAKOBSON'S BELIEFS FAILED TO COME WITHIN
THE STATUTORY DEFINITION, OR WHETHER IT HAD CONCLUDED THAT HE LACKED
SINCERITY, IT DIRECTED DISMISSAL OF THE INDICTMENT. 

NO. 29:  FOREST BRITT PETER WAS CONVICTED IN THE NORTHERN DISTRICT OF
CALIFORNIA ON A CHARGE OF REFUSING TO SUBMIT TO INDUCTION.  IN HIS
SELECTIVE SERVICE SYSTEM FORM HE STATED THAT HE WAS NOT A MEMBER OF A
RELIGIOUS SECT OR ORGANIZATION; HE FAILED TO EXECUTE SECTION VII OF THE
QUESTIONNAIRE BUT ATTACHED TO IT A QUOTATION EXPRESSING OPPOSITION TO
WAR, IN WHICH HE STATED THAT HE CONCURRED.  IN A LATER FORM HE HEDGED
THE QUESTION AS TO HIS BELIEF IN A SUPREME BEING BY SAYING THAT IT
DEPENDED ON THE DEFINITION AND HE APPENDED A STATEMENT THAT HE FELT IT
A VIOLATION OF HIS MORAL CODE TO TAKE HUMAN LIFE AND THAT HE CONSIDERED
THIS BELIEF SUPERIOR TO HIS OBLIGATION TO THE STATE.  AS TO WHETHER HIS
CONVICTION WAS RELIGIOUS, HE QUOTED WITH APPROVAL REVEREND JOHN HAYNES
HOLMES' DEFINITION OF RELIGION AS "THE CONSCIOUSNESS OF SOME POWER
MANIFEST IN NATURE WHICH HELPS MAN IN THE ORDERING OF HIS LIFE IN
HARMONY WITH ITS DEMANDS  ...  ; IT IS THE SUPREME EXPRESSION OF HUMAN
NATURE; IT IS MAN THINKING HIS HIGHEST, FEELING HIS DEEPEST, AND LIVING
HIS BEST."  R. 27.  THE SOURCE OF HIS CONVICTION HE ATTRIBUTED TO
READING AND MEDITATION "IN OUR DEMOCRATIC AMERICAN CULTURE, WITH ITS
VALUES DERIVED FROM THE WESTERN RELIGIOUS AND PHILOSOPHICAL
TRADITION."  IBID.  AS TO HIS BELIEF IN A SUPREME BEING, PETER STATED
THAT HE SUPPOSED "YOU COULD CALL THAT A BELIEF IN THE SUPREME BEING OR
GOD.  THESE JUST DO NOT HAPPEN TO BE THE WORDS I USE."  R. 11.  IN 1959
HE WAS CLASSIFIED 1-A, ALTHOUGH THERE WAS NO EVIDENCE IN THE RECORD
THAT HE WAS NOT SINCERE IN HIS BELIEFS.  AFTER HIS CONVICTION FOR
FAILURE TO REPORT FOR INDUCTION THE COURT OF APPEALS, ASSUMING ARGUENDO
THAT HE WAS SINCERE, AFFIRMED, 324 F.2D 173. 

          BACKGROUND OF SEC. 6(J). 

CHIEF JUSTICE HUGHES, IN HIS OPINION IN UNITED STATES V. MACINTOSH,
283 U.S. 605 (1931), ENUNCIATED THE RATIONALE BEHIND THE LONG
RECOGNITION OF CONSCIENTIOUS OBJECTION TO PARTICIPATION IN WAR ACCORDED
BY CONGRESS IN OUR VARIOUS CONSCRIPTION LAWS WHEN HE DECLARED THAT "IN
THE FORUM OF CONSCIENCE, DUTY TO A MORAL POWER HIGHER THAN THE STATE
HAS ALWAYS BEEN MAINTAINED."  AT 633 (DISSENTING OPINION).  IN A
SIMILAR VEIN HARLAN FISKE STONE, LATER CHIEF JUSTICE, DREW FROM THE
NATION'S PAST WHEN HE DECLARED THAT: 

"BOTH MORALS AND SOUND POLICY REQUIRE THAT THE STATE SHOULD NOT
VIOLATE THE CONSCIENCE OF THE INDIVIDUAL.  ALL OUR HISTORY GIVES
CONFIRMATION TO THE VIEW THAT LIBERTY OF CONSCIENCE HAS A MORAL AND
SOCIAL VALUE WHICH MAKES IT WORTHY OF PRESERVATION AT THE HANDS OF THE
STATE.  SO DEEP IN ITS SIGNIFICANCE AND VITAL, INDEED, IS IT TO THE
INTEGRITY OF MAN'S MORAL AND SPIRITUAL NATURE THAT NOTHING SHORT OF THE
SELF-PRESERVATION OF THE STATE SHOULD WARRANT ITS VIOLATION; AND IT MAY
WELL BE QUESTIONED WHETHER THE STATE WHICH PRESERVES ITS LIFE BY A
SETTLED POLICY OF VIOLATION OF THE CONSCIENCE OF THE INDIVIDUAL WILL
NOT IN FACT ULTIMATELY LOSE IT BY THE PROCESS."  STONE, THE
CONSCIENTIOUS OBJECTOR, 21 COL. UNIV.  Q. 253, 269 (1919). 

GOVERNMENTAL RECOGNITION OF THE MORAL DILEMMA POSED FOR PERSONS OF
CERTAIN RELIGIOUS FAITHS BY THE CALL TO ARMS CAME EARLY IN THE HISTORY
OF THIS COUNTRY.  VARIOUS METHODS OF AMELIORATING THEIR DIFFICULTY WERE
ADOPTED BY THE COLONIES, AND WERE LATER PERPETUATED IN STATE STATUTES
AND CONSTITUTIONS.  THUS BY THE TIME OF THE CIVIL WAR THERE EXISTED A
STATE PATTERN OF EXEMPTING CONSCIENTIOUS OBJECTORS ON RELIGIOUS
GROUNDS.  IN THE FEDERAL MILITIA ACT OF 1862 CONTROL OF CONSCRIPTION
WAS LEFT PRIMARILY IN THE STATES.  HOWEVER, GENERAL ORDER NO. 99,
ISSUED BY THE ADJUTANT GENERAL PURSUANT TO THAT ACT, PROVIDED FOR
STRIKING FROM THE CONSCRIPTION LIST THOSE WHO WERE EXEMPTED BY THE
STATES; IT ALSO ESTABLISHED A COMMUTATION OR SUBSTITUTION SYSTEM
FASHIONED FROM EARLIER STATE ENACTMENTS.  WITH THE FEDERAL CONSCRIPTION
ACT OF 1863, WHICH ENACTED THE COMMUTATION AND SUBSTITUTION PROVISIONS
OF GENERAL ORDER NO. 99, THE FEDERAL GOVERNMENT OCCUPIED THE FIELD
ENTIRELY, AND IN THE 1864 DRAFT ACT, 13 STAT. 9, IT EXTENDED EXEMPTIONS
TO THOSE CONSCIENTIOUS OBJECTORS WHO WERE MEMBERS OF RELIGIOUS
DENOMINATIONS OPPOSED TO THE BEARING OF ARMS AND WHO WERE PROHIBITED
FROM DOING SO BY THE ARTICLES OF FAITH OF THEIR DENOMINATIONS. 
SELECTIVE SERVICE SYSTEM MONOGRAPH NO. 11, CONSCIENTIOUS OBJECTION 40
41 (1950).  IN THAT SAME YEAR THE CONFEDERACY EXEMPTED CERTAIN PACIFIST

THE NEED FOR CONSCRIPTION DID NOT AGAIN ARISE UNTIL WORLD WAR I. THE
DRAFT ACT OF 1917, 40 STAT. 76, 78, AFFORDED EXEMPTIONS TO
CONSCIENTIOUS OBJECTORS WHO WERE AFFILIATED WITH A "WELL-RECOGNIZED
RELIGIOUS SECT OR ORGANIZATION THEN ORGANIZED AND EXISTING AND WHOSE
EXISTING CREED OR PRINCIPLES FORBADE ITS MEMBERS TO PARTICIPATE IN WAR
IN ANY FORM  ...  ."  THE ACT REQUIRED THAT ALL PERSONS BE INDUCTED
INTO THE ARMED SERVICES, BUT ALLOWED THE CONSCIENTIOUS OBJECTORS TO
PERFORM NONCOMBATANT SERVICE IN CAPACITIES DESIGNATED BY THE PRESIDENT
OF THE UNITED STATES.  ALTHOUGH THE 1917 ACT EXCUSED RELIGIOUS
OBJECTORS ONLY, IN DECEMBER 1917, THE SECRETARY OF WAR INSTRUCTED THAT
"PERSONAL SCRUPLES AGAINST WAR" BE CONSIDERED AS CONSTITUTING
"CONSCIENTIOUS OBJECTION."  SELECTIVE SERVICE SYSTEM MONOGRAPH NO. 11,
CONSCIENTIOUS OBJECTION 54-55 (1950).  THIS ACT, INCLUDING ITS
CONSCIENTIOUS OBJECTOR PROVISIONS, WAS UPHELD AGAINST CONSTITUTIONAL
ATTACK IN THE SELECTIVE DRAFT LAW CASES, 245 U.S. 366, 389-390 (1918). 
IN ADOPTING THE 1940 SELECTIVE TRAINING AND SERVICE ACT CONGRESS
BROADENED THE EXEMPTION AFFORDED IN THE 1917 ACT BY MAKING IT
UNNECESSARY TO BELONG TO A PACIFIST RELIGIOUS SECT IF THE CLAIMANT'S
OWN OPPOSITION TO WAR WAS BASED ON "RELIGIOUS TRAINING AND BELIEF."  54
STAT. 889.  THOSE FOUND TO BE WITHIN THE EXEMPTION WERE NOT INDUCTED
INTO THE ARMED SERVICES BUT WERE ASSIGNED TO NONCOMBATANT SERVICE UNDER
THE SUPERVISION OF THE SELECTIVE SERVICE SYSTEM.  THE CONGRESS
RECOGNIZED THAT ONE MIGHT BE RELIGIOUS WITHOUT BELONGING TO AN
ORGANIZED CHURCH JUST AS SURELY AS MINORITY MEMBERS OF A FAITH NOT
OPPOSED TO WAR MIGHT THROUGH RELIGIOUS READING REACH A CONVICTION
AGAINST PARTICIPATION IN WAR.  CONGRESS LOOKS AT THE CONSCIENTIOUS
OBJECTOR (NATIONAL SERVICE BOARD FOR RELIGIOUS OBJECTORS, 1943) 71, 79,
83, 87, 88, 89.  INDEED, THE CONSENSUS OF THE WITNESSES APPEARING
BEFORE THE CONGRESSIONAL COMMITTEES WAS THAT INDIVIDUAL BELIEF - RATHER
THAN MEMBERSHIP IN A CHURCH OR SECT - DETERMINED THE DUTIES THAT GOD
IMPOSED UPON A PERSON IN HIS EVERYDAY CONDUCT; AND THAT "THERE IS A
HIGHER LOYALTY THAN LOYALTY TO THIS COUNTRY, LOYALTY TO GOD."  ID., AT
29-31.  SEE ALSO THE PROPOSALS WHICH WERE MADE TO THE HOUSE MILITARY
AFFAIRS COMMITTEE BUT REJECTED.  ID., AT 21-23, 82-83, 85.  THUS, WHILE
SHIFTING THE TEST FROM MEMBERSHIP IN SUCH A CHURCH TO ONE'S INDIVIDUAL
BELIEF THE CONGRESS NEVERTHELESS CONTINUED ITS HISTORIC PRACTICE OF
EXCUSING FROM ARMED SERVICE THOSE WHO BELIEVED THAT THEY OWED AN
OBLIGATION, SUPERIOR TO THAT DUE THE STATE, OF NOT PARTICIPATING IN WAR
IN ANY FORM. 

BETWEEN 1940 AND 1948 TWO COURTS OF APPEALS (FN1) HELD THAT THE
PHRASE "RELIGIOUS TRAINING AND BELIEF" DID NOT INCLUDE PHILOSOPHICAL,
SOCIAL OR POLITICAL POLICY.  THEN IN 1948 THE CONGRESS AMENDED THE
LANGUAGE OF THE STATUTE AND DECLARED THAT "RELIGIOUS TRAINING AND
BELIEF" WAS TO BE DEFINED AS "AN INDIVIDUAL'S BELIEF IN A RELATION TO A
SUPREME BEING INVOLVING DUTIES SUPERIOR TO THOSE ARISING FROM ANY HUMAN
RELATION, BUT NOT INCLUDING ESSENTIALLY POLITICAL, SOCIOLOGICAL, OR
PHILOSOPHICAL VIEWS OR A MERELY PERSONAL MORAL CODE."  THE ONLY
SIGNIFICANT MENTION OF THIS CHANGE IN THE PROVISION APPEARS IN THE
REPORT OF THE SENATE ARMED SERVICES COMMITTEE RECOMMENDING ADOPTION. 
IT SAID SIMPLY THIS:  "THIS SECTION REENACTS SUBSTANTIALLY THE SAME
PROVISIONS AS WERE FOUND IN SUBSECTION 5(G) OF THE 1940 ACT.  EXEMPTION
EXTENDS TO ANYONE WHO, BECAUSE OF RELIGIOUS TRAINING AND BELIEF IN HIS
RELATION TO A SUPREME BEING, IS CONSCIENTIOUSLY OPPOSED TO COMBATANT
MILITARY SERVICE OR TO BOTH COMBATANT AND NONCOMBATANT MILITARY
SERVICE.  (SEE UNITED STATES V. BERMAN, 156 F.(2D) 377, CERTIORARI
DENIED, 329 U.S. 795.)"  S. REP. NO. 1268, 80TH CONG., 2D SESS., 14. 

           INTERPRETATION OF SEC. 6(J). 

1.  THE CRUX OF THE PROBLEM LIES IN THE PHRASE "RELIGIOUS TRAINING
AND BELIEF" WHICH CONGRESS HAS DEFINED AS "BELIEF IN A RELATION TO A
SUPREME BEING INVOLVING DUTIES SUPERIOR TO THOSE ARISING FROM ANY HUMAN
RELATION."  IN ASSIGNING MEANING TO THIS STATUTORY LANGUAGE WE MAY
NARROW THE INQUIRY BY NOTING BRIEFLY THOSE SCRUPLES EXPRESSLY EXCEPTED
FROM THE DEFINITION.  THE SECTION EXCLUDES THOSE PERSONS WHO,
DISAVOWING RELIGIOUS BELIEF, DECIDE ON THE BASIS OF ESSENTIALLY
POLITICAL, SOCIOLOGICAL OR ECONOMIC CONSIDERATIONS THAT WAR IS WRONG
AND THAT THEY WILL HAVE NO PART OF IT.  THESE JUDGMENTS HAVE
HISTORICALLY BEEN RESERVED FOR THE GOVERNMENT, AND IN MATTERS WHICH CAN
BE SAID TO FALL WITHIN THESE AREAS THE CONVICTION OF THE INDIVIDUAL HAS
NEVER BEEN PERMITTED TO OVERRIDE THAT OF THE STATE.   UNITED STATES V.
MACINTOSH, SUPRA (DISSENTING OPINION).  THE STATUTE FURTHER EXCLUDES
THOSE WHOSE OPPOSITION TO WAR STEMS FROM A "MERELY PERSONAL MORAL
CODE," A PHRASE TO WHICH WE SHALL HAVE OCCASION TO TURN LATER IN
DISCUSSING THE APPLICATION OF SEC. 6(J) TO THESE CASES.  WE ALSO PAUSE
TO TAKE NOTE OF WHAT IS NOT INVOLVED IN THIS LITIGATION.  NO PARTY
CLAIMS TO BE AN ATHEIST OR ATTACKS THE STATUTE ON THIS GROUND.  THE
QUESTION IS NOT, THEREFORE, ONE BETWEEN THEISTIC AND ATHEISTIC
BELIEFS.  WE DO NOT DEAL WITH OR INTIMATE ANY DECISION ON THAT
SITUATION IN THESE CASES.  NOR DO THE PARTIES CLAIM THE MONOTHEISTIC
BELIEF THAT THERE IS BUT ONE GOD; WHAT THEY CLAIM (WITH THE POSSIBLE
EXCEPTION OF SEEGER WHO BASES HIS POSITION HERE NOT ON FACTUAL BUT ON
PURELY CONSTITUTIONAL GROUNDS) IS THAT THEY ADHERE TO THEISM, WHICH IS
THE "BELIEF IN THE EXISTENCE OF A GOD OR GODS; ...  BELIEF IN
SUPERHUMAN POWERS OR SPIRITUAL AGENCIES IN ONE OR MANY GODS," AS
OPPOSED TO ATHEISM.  (FN2)  OUR QUESTION, THEREFORE, IS THE NARROW ONE:
DOES THE TERM "SUPREME BEING" AS USED IN SEC. 6(J) MEAN THE ORTHODOX
GOD OR THE BROADER CONCEPT OF A POWER OR BEING, OR A FAITH, "TO WHICH
ALL ELSE IS SUBORDINATE OR UPON WHICH ALL ELSE IS ULTIMATELY
DEPENDENT"?  WEBSTER'S NEW INTERNATIONAL DISTIONARY (SECOND EDITION). 
IN CONSIDERING THIS QUESTION WE RESOLVE IT SOLELY IN RELATION TO THE
LANGUAGE OF SEC. 6(J) AND NOT OTHERWISE. 

2.  FEW WOULD QUARREL, WE THINK, WITH THE PROPOSITION THAT IN NO
FIELD OF HUMAN ENDEAVOR HAS THE TOOL OF LANGUAGE PROVED SO INADEQUATE
IN THE COMMUNICATION OF IDEAS AS IT HAS IN DEALING WITH THE FUNDAMENTAL
QUESTIONS OF MAN'S PREDICAMENT IN LIFE, IN DEATH OR IN FINAL JUDGMENT
AND RETRIBUTION.  THIS FACT MAKES THE TASK OF DISCERNING THE INTENT OF
CONGRESS IN USING THE PHRASE "SUPREME BEING" A COMPLEX ONE.  NOR IS IT
MADE THE EASIER BY THE RICHNESS AND VARIETY OF SPIRITUAL LIFE IN OUR
COUNTRY.  OVER 250 SECTS INHABIT OUR LAND.  SOME BELIEVE IN A PURELY
PERSONAL GOD, SOME IN A SUPERNATURAL DEITY; OTHERS THINK OF RELIGION AS
A WAY OF LIFE ENVISIONING AS ITS ULTIMATE GOAL THE DAY WHEN ALL MEN CAN
LIVE TOGETHER IN PERFECT UNDERSTANDING AND PEACE.  THERE ARE THOSE WHO
THINK OF GOD AS THE DEPTH OF OUR BEING; OTHERS, SUCH AS THE BUDDHISTS,
STRIVE FOR A STATE OF LASTING REST THROUGH SELF-DENIAL AND INNER
PURIFICATION; IN HINDU PHILOSOPHY, THE SUPREME BEING IS THE
TRANSCENDENTAL REALITY WHICH IS TRUTH, KNOWLEDGE AND BLISS.  EVEN THOSE
RELIGIOUS GROUPS WHICH HAVE TRADITIONALLY OPPOSED WAR IN EVERY FORM
HAVE SPLINTERED INTO VARIOUS DENOMINATIONS:  FROM 1940 TO 1947 THERE
WERE FOUR DENOMINATIONS USING THE NAME "FRIENDS," SELECTIVE SERVICE
SYSTEM MONOGRAPH NO. 11, CONSCIENTIOUS OBJECTION 13 (1950); THE "CHURCH
OF THE BRETHREN" WAS THE OFFICIAL NAME OF THE OLDEST AND LARGEST CHURCH
BODY OF FOUR DENOMINATIONS COMPOSED OF THOSE COMMONLY CALLED BRETHREN,
ID., AT 11; AND THE "MENNONITE CHURCH" WAS THE LARGEST OF 17
DENOMINATIONS, INCLUDING THE AMISH AND HUTTERITES, GROUPED AS
"MENNONITE BODIES" IN THE 1936 REPORT ON THE CENSUS OF RELIGIOUS
BODIES, ID., AT 9.  THIS VAST PANOPLY OF BELIEFS REVEALS THE MAGNITUDE
OF THE PROBLEM WHICH FACED THE CONGRESS WHEN IT SET ABOUT PROVIDING AN
EXEMPTION FROM ARMED SERVICE.  IT ALSO EMPHASIZES THE CARE THAT
CONGRESS REALIZED WAS NECESSARY IN THE FASHIONING OF AN EXEMPTION WHICH
WOULD BE IN KEEPING WITH ITS LONG-ESTABLISHED POLICY OF NOT PICKING AND
CHOOSING AMONG RELIGIOUS BELIEFS. 

IN SPITE OF THE ELUSIVE NATURE OF THE INQUIRY, WE ARE NOT WITHOUT
CERTAIN GUIDELINES.  IN AMENDING THE 1940 ACT, CONGRESS ADOPTED ALMOST
INTACT THE LANGUAGE OF CHIEF JUSTICE HUGHES IN UNITED STATES V.
MACINTOSH, SUPRA: 

"THE ESSENCE OF RELIGION IS BELIEF IN A RELATION TO GOD INVOLVING
DUTIES SUPERIOR TO THOSE ARISING FROM ANY HUMAN RELATION."  AT 633
634. 

BY COMPARING THE STATUTORY DEFINITION WITH THOSE WORDS, HOWEVER, IT
BECOMES READILY APPARENT THAT THE CONGRESS DELIBERATELY BROADENED THEM
BY SUBSTITUTING THE PHRASE "SUPREME BEING" FOR THE APPELLATION "GOD." 
AND IN SO DOING IT IS ALSO SIGNIFICANT THAT CONGRESS DID NOT ELABORATE
ON THE FORM OR NATURE OF THIS HIGHER AUTHORITY WHICH IT CHOSE TO
DESIGNATE AS "SUPREME BEING."  BY SO REFRAINING IT MUST HAVE HAD IN
MIND THE ADMONITIONS OF THE CHIEF JUSTICE WHEN HE SAID IN THE SAME
OPINION THAT EVEN THE WORD "GOD" HAD MYRIAD MEANINGS FOR MEN OF FAITH: 

"PUTTING ASIDE DOGMAS WITH THEIR PARTICULAR CONCEPTIONS OF DEITY,
FREEDOM OF CONSCIENCE ITSELF IMPLIES RESPECT FOR AN INNATE CONVICTION
OF PARAMOUNT DUTY.  THE BATTLE FOR RELIGIOUS LIBERTY HAS BEEN FOUGHT
AND WON WITH RESPECT TO RELIGIOUS BELIEFS AND PRACTICES, WHICH ARE NOT
IN CONFLICT WITH GOOD ORDER, UPON THE VERY GROUND OF THE SUPREMACY OF
CONSCIENCE WITHIN ITS PROPER FIELD."  AT 634. 

MOREOVER, THE SENATE REPORT ON THE BILL SPECIFICALLY STATES THAT SEC.
6(J) WAS INTENDED TO RE-ENACT "SUBSTANTIALLY THE SAME PROVISIONS AS
WERE FOUND" IN THE 1940 ACT.  THAT STATUTE, OF COURSE, REFERS TO
"RELIGIOUS TRAINING AND BELIEF" WITHOUT MORE.  ADMITTEDLY, ALL OF THE
PARTIES HERE PURPORT TO BASE THEIR OBJECTION ON RELIGIOUS BELIEF.  IT
APPEARS, THEREFORE, THAT WE NEED ONLY LOOK TO THIS CLEAR STATEMENT OF
CONGRESSIONAL INTENT AS SET OUT IN THE REPORT.  UNDER THE 1940 ACT IT
WAS NECESSARY ONLY TO HAVE A CONVICTION BASED UPON RELIGIOUS TRAINING
AND BELIEF; WE BELIEVE THAT IS ALL THAT IS REQUIRED HERE.  WITHIN THAT
PHRASE WOULD COME ALL SINCERE RELIGIOUS BELIEFS WHICH ARE BASED UPON A
POWER OR BEING, OR UPON A FAITH, TO WHICH ALL ELSE IS SUBORDINATE OR
UPON WHICH ALL ELSE IS ULTIMATELY DEPENDENT.  THE TEST MIGHT BE STATED
IN THESE WORDS:  A SINCERE AND MEANINGFUL BELIEF WHICH OCCUPIES IN THE
LIFE OF ITS POSSESSOR A PLACE PARALLEL TO THAT FILLED BY THE GOD OF
THOSE ADMITTEDLY QUALIFYING FOR THE EXEMPTION COMES WITHIN THE
STATUTORY DEFINITION.  THIS CONSTRUCTION AVOIDS IMPUTING TO CONGRESS AN
INTENT TO CLASSIFY DIFFERENT RELIGIOUS BELIEFS, EXEMPTING SOME AND
EXCLUDING OTHERS, AND IS IN ACCORD WITH THE WELL-ESTABLISHED
CONGRESSIONAL POLICY OF EQUAL TREATMENT FOR THOSE WHOSE OPPOSITION TO
SERVICE IS GROUNDED IN THEIR RELIGIOUS TENETS. 

3.  THE GOVERNMENT TAKES THE POSITION THAT SINCE BERMAN V. UNITED
STATES, SUPRA, WAS CITED IN THE SENATE REPORT ON THE 1948 ACT, CONGRESS
MUST HAVE DESIRED TO ADOPT THE BERMAN INTERPRETATION OF WHAT
CONSTITUTES "RELIGIOUS BELIEF."  SUCH A CLAIM, HOWEVER, WILL NOT BEAR
SCRUTINY.  FIRST, WE THINK IT CLEAR THAN AN EXPLICIT STATEMENT OF
CONGRESSIONAL INTENT DESERVES MORE WEIGHT THAN THE PARENTHETICAL
CITATION OF A CASE WHICH MIGHT STAND FOR A NUMBER OF THINGS.  CONGRESS
SPECIFICALLY STATED THAT IT INTENDED TO RE-ENACT SUBSTANTIALLY THE SAME
PROVISIONS AS WERE FOUND IN THE 1940 ACT.  MOREOVER, THE HISTORY OF
THAT ACT REVEALS NO EVIDENCE OF A DESIRE TO RESTRICT THE CONCEPT OF
RELIGIOUS BELIEF.  ON THE CONTRARY THE CHAIRMAN OF THE HOUSE MILITARY
AFFAIRS COMMITTEE WHICH REPORTED OUT THE 1940 EXEMPTION PROVISIONS
STATED: 

"WE HEARD THE CONSCIENTIOUS OBJECTORS AND ALL OF THEIR
REPRESENTATIVES THAT WE COULD POSSIBLY HEAR, AND, SUMMING IT ALL UP,
THEIR WHOLE OBJECTION TO THE BILL, ASIDE FROM THEIR OBJECTION TO
COMPULSORY MILITARY TRAINING, WAS BASED UPON THE RIGHT OF CONSCIENTIOUS
OBJECTION AND IN MOST INSTANCES TO THE RIGHT OF THE MINISTERIAL
STUDENTS TO CONTINUE IN THEIR STUDIES, AND WE HAVE PROVIDED AMPLE
PROTECTION FOR THOSE CLASSES AND THOSE GROUPS."  86 CONG. REC. 11368
(1940). 

DURING THE HOUSE DEBATE ON THE BILL, MR. FADDIS OF PENNSYLVANIA MADE
THE FOLLOWING STATEMENT: 

"WE HAVE MADE PROVISION TO TAKE CARE OF CONSCIENTIOUS OBJECTORS.  I
AM SURE THE COMMITTEE HAS HAD ALL THE SYMPATHY IN THE WORLD WITH THOSE
WHO APPEARED CLAIMING TO HAVE RELIGIOUS SCRUPLES AGAINST RENDERING
MILITARY SERVICE IN ITS VARIOUS DEGREES.  SOME APPEARED WHO HAD
CONSCIENTIOUS SCRUPLES AGAINST HANDLING LETHAL WEAPONS, BUT WHO HAD NO
SCRUPLES AGAINST PERFORMING OTHER DUTIES WHICH DID NOT ACTUALLY BRING
THEM INTO COMBAT.  OTHERS APPEARED WHO CLAIMED TO HAVE CONSCIENTIOUS
SCRUPLES AGAINST PARTICIPATING IN ANY OF THE ACTIVITIES THAT WOULD GO
ALONG WITH THE ARMY.  THE COMMITTEE TOOK ALL OF THESE INTO
CONSIDERATION AND HAS WRITTEN A BILL WHICH, I BELIEVE, WILL TAKE CARE
OF ALL THE REASONABLE OBJECTIONS OF THIS CLASS OF PEOPLE."  86 CONG.
REC. 11418 (1940). 

THUS THE HISTORY OF THE ACT BELIES THE NOTION THAT IT WAS TO BE
RESTRICTIVE IN APPLICATION AND AVAILABLE ONLY TO THOSE BELIEVING IN A
TRADITIONAL GOD. 

AS FOR THE CITATION TO BERMAN, IT MIGHT MEAN A NUMBER OF THINGS.  BUT
WE THINK THAT CONGRESS' ACTION IN CITING IT MUST BE CONSTRUED IN SUCH A
WAY AS TO MAKE IT CONSISTENT WITH ITS EXPRESS STATEMENT THAT IT MEANT
SUBSTANTIALLY TO RE-ENACT THE 1940 PROVISION.  AS FAR AS WE CAN FIND,
THERE IS NOT ONE WORD TO INDICATE CONGRESSIONAL CONCERN OVER ANY
CONFLICT BETWEEN KAUTEN AND BERMAN.  SURELY, IF IT THOUGHT THAT TWO
CLASHING INTERPRETATIONS AS TO WHAT AMOUNTED TO "RELIGIOUS BELIEF" HAD
TO BE RESOLVED, IT WOULD HAVE SAID SO SOMEWHERE IN ITS DELIBERATIONS. 
THUS, WE THINK THAT RATHER THAN CITING BERMAN FOR WHAT IT SAID
"RELIGIOUS BELIEF" WAS, CONGRESS CITED IT FOR WHAT IT SAID "RELIGIOUS
BELIEF" WAS NOT.  FOR BOTH KAUTEN AND BERMAN HOLD IN COMMON THE
CONCLUSION THAT EXEMPTION MUST BE DENIED TO THOSE WHOSE BELIEFS ARE
POLITICAL, SOCIAL OR PHILOSOPHICAL IN NATURE, RATHER THAN RELIGIOUS. 
BOTH, IN FACT, DENIED EXEMPTION ON THAT VERY GROUND.  IT SEEMS MORE
LIKELY, THEREFORE, THAT IT WAS THIS POINT WHICH LED CONGRESS TO CITE
BERMAN.  THE FIRST PART OF THE SEC. 6(J) DEFINITION - BELIEF IN A
RELATION TO A SUPREME BEING - WAS INDEED SET OUT IN BERMAN, WITH THE
EXCEPTION THAT THE COURT USED THE WORD "GOD" RATHER THAN "SUPREME
BEING."  HOWEVER, AS THE GOVERNMENT RECOGNIZES, BERMAN TOOK THAT
LANGUAGE WORD FOR WORD FROM MACINTOSH.  FAR FROM REQUIRING A CONCLUSION
CONTRARY TO THE ONE WE REACH HERE, CHIEF JUSTICE HUGHES' OPINION, AS WE
HAVE POINTED OUT, SUPPORTS OUR INTERPRETATION.    ADMITTEDLY, THE
SECOND HALF OF THE STATUTORY DEFINITION - THE REJECTION OF SOCIOLOGICAL
AND MORAL VIEWS - WAS TAKEN DIRECTLY FROM BERMAN.  BUT, AS WE HAVE
NOTED, THIS SAME VIEW WAS ADHERED TO IN UNITED STATES V. KAUTEN, SUPRA.
INDEED THE SELECTIVE SERVICE SYSTEM HAS STATED ITS VIEW OF THE CASES'
SIGNIFICANCE IN THESE TERMS:  "THE UNITED STATES V. KAUTEN AND HERMAN
BERMAN V. UNITED STATES CASES RULED THAT A VALID CONSCIENTIOUS OBJECTOR
CLAIM TO EXEMPTION MUST BE BASED SOLELY ON 'RELIGIOUS TRAINING AND
BELIEF' AND NOT ON PHILOSOPHICAL, POLITICAL, SOCIAL, OR OTHER GROUNDS
... ."  SELECTIVE SERVICE SYSTEM MONOGRAPH NO. 11, CONSCIENTIOUS
OBJECTION 337 (1950).  SEE ID., AT 278.   THAT THE CONCLUSIONS OF THE
SELECTIVE SERVICE SYSTEM ARE NOT TO BE TAKEN LIGHTLY IS EVIDENCED IN
THIS STATEMENT BY SENATOR GURNEY, CHAIRMAN OF THE SENATE ARMED SERVICES
COMMITTEE AND SPONSOR OF THE SENATE BILL CONTAINING THE PRESENT VERSION
OF SEC. 6(J): 

"THE BILL WHICH IS NOW PENDING FOLLOWS THE 1940 ACT, WITH VERY FEW
TECHNICAL AMENDMENTS, WORKED OUT BY THOSE IN SELECTIVE SERVICE WHO HAD
CHARGE OF THE CONSCIENTIOUS-OBJECTOR PROBLEM DURING THE WAR."  94 CONG.
REC. 7305 (1948). 

THUS WE CONCLUDE THAT IN ENACTING SEC. 6(J) CONGRESS SIMPLY MADE
EXPLICIT WHAT THE COURTS OF APPEALS HAD CORRECTLY FOUND IMPLICIT IN THE
1940 ACT.  MOREOVER, IT IS PERFECTLY REASONABLE THAT CONGRESS SHOULD
HAVE SELECTED BERMAN FOR ITS CITATION, SINCE THIS COURT DENIED
CERTIORARI IN THAT CASE, A CIRCUMSTANCE NOT PRESENT IN KAUTEN. 

PROVISION INVOLVING ONLY CERTAIN "TECHNICAL AMENDMENTS," TO USE THE
WORDS OF SENATOR GURNEY.  AS SUCH IT CONTINUES THE CONGRESSIONAL POLICY
OF PROVIDING EXEMPTION FROM MILITARY SERVICE FOR THOSE WHOSE OPPOSITION
IS BASED ON GROUNDS THAT CAN FAIRLY BE SAID TO BE "RELIGIOUS."  (FN3)
TO HOLD OTHERWISE WOULD NOT ONLY FLY IN THE FACE OF CONGRESS' ENTIRE
ACTION IN THE PAST; IT WOULD IGNORE THE HISTORIC POSITION OF OUR
COUNTRY ON THIS ISSUE SINCE ITS FOUNDING. 

4.  MOREOVER, WE BELIEVE THIS CONSTRUCTION EMBRACES THE EVER
BROADENING UNDERSTANDING OF THE MODERN RELIGIOUS COMMUNITY.  THE
EMINENT PROTESTANT THEOLOGIAN, DR. PAUL TILLICH, WHOSE VIEWS THE
GOVERNMENT CONCEDES WOULD COME WITHIN THE STATUTE, IDENTIFIES GOD NOT
AS A PROJECTION "OUT THERE" OR BEYOND THE SKIES BUT AS THE GROUND OF
OUR VERY BEING.  THE COURT OF APPEALS STATED IN NO. 51 THAT JAKOBSON'S
VIEWS "PARALLEL THOSE OF THIS EMINENT THEOLOGIAN RATHER STRIKINGLY." 
325 F.2D, AT 415-416.  IN HIS BOOK, SYSTEMATIC THEOLOGY, DR. TILLICH
SAYS: 

"I HAVE WRITTEN OF THE GOD ABOVE THE GOD OF THEISM  ...  .  IN SUCH A
STATE OF SELF-AFFIRMATION THE GOD OF BOTH RELIGIOUS AND THEOLOGICAL
LANGUAGE DISAPPEARS.  BUT SOMETHING REMAINS, NAMELY, THE SERIOUSNESS OF
THAT DOUBT IN WHICH MEANING WITHIN MEANINGLESSNESS IS AFFIRMED.  THE
SOURCE OF THIS AFFIRMATION OF MEANING WITHIN MEANINGLESSNESS, OF
CERTITUDE WITHIN DOUBT, IS NOT THE GOD OF TRADITIONAL THEISM BUT THE
'GOD ABOVE GOD,' THE POWER OF BEING, WHICH WORKS THROUGH THOSE WHO HAVE
NO NAME FOR IT, NOT EVEN THE NAME GOD."  II SYSTEMATIC THEOLOGY 12
(1957). 

ANOTHER EMINENT CLERIC, THE BISHOP OF WOOLWICH, JOHN A.T. ROBINSON,
IN HIS BOOK, HONEST TO GOD (1963), STATES: 

"THE BIBLE SPEAKS OF A GOD 'UP THERE.'  NO DOUBT ITS PICTURE OF A
THREE-DECKER UNIVERSE, OF 'THE HEAVEN ABOVE, THE EARTH BENEATH AND THE
WATERS UNDER THE EARTH,' WAS ONCE TAKEN QUITE LITERALLY  ...  ."  AT
11.  "(LATER) IN PLACE OF A GOD WHO IS LITERALLY OR PHYSICALLY 'UP
THERE' WE HAVE ACCEPTED, AS PART OF OUR MENTAL FURNITURE, A GOD WHO IS
SPIRITUALLY OR METAPHYSICALLY 'OUT THERE.'  ...  BUT NOW IT SEEMS THERE
IS NO ROOM FOR HIM, NOT MERELY IN THE INN, BUT IN THE ENTIRE UNIVERSE:
FOR THERE ARE NO VACANT PLACES LEFT.  IN REALITY, OF COURSE, OUR NEW
VIEW OF THE UNIVERSE HAD MADE NOT THE SLIGHTEST DIFFERENCE  ...  ."  AT
13-14. 

"BUT THE IDEA OF A GOD SPIRITUALLY OR METAPHYSICALLY 'OUT THERE' DIES
VERY MUCH HARDER.  INDEED, MOST PEOPLE WOULD BE SERIOUSLY DISTURBED BY
THE THOUGHT THAT IT SHOULD NEED TO DIE AT ALL.  FOR IT IS THEIR GOD,
AND THEY HAVE NOTHING TO PUT IN ITS PLACE  ...  .  EVERY ONE OF US
LIVES WITH SOME MENTAL PICTURE OF A GOD 'OUT THERE,' A GOD WHO 'EXISTS'
ABOVE AND BEYOND THE WORLD HE MADE, A GOD 'TO' WHOM WE PRAY AND TO WHOM
WE 'GO' WHEN WE DIE."  AT 14. 

"BUT THE SIGNS ARE THAT WE ARE REACHING THE POINT AT WHICH THE WHOLE
CONCEPTION OF A GOD 'OUT THERE," WHICH HAS SERVED US SO WELL SINCE THE
COLLAPSE OF THE THREE-DECKER UNIVERSE, IS ITSELF BECOMING MORE OF A
HINDRANCE THAN A HELP."  AT 15-16. 

THE SCHEMA OF THE RECENT ECUMENICAL COUNCIL INCLUDED A MOST
SIGNIFICANT DECLARATION ON RELIGION: (FN4) 

"THE COMMUNITY OF ALL PEOPLES IS ONE.  ONE IS THEIR ORIGIN, FOR GOD
MADE THE ENTIRE HUMAN RACE LIVE ON ALL THE FACE OF THE EARTH.  ONE,
TOO, IS THEIR ULTIMATE END, GOD.  MEN EXPECT FROM THE VARIOUS RELIGIONS
ANSWERS TO THE RIDDLES OF THE HUMAN CONDITION:  WHAT IS MAN?  WHAT IS
THE MEANING AND PURPOSE OF OUR LIVES?  WHAT IS THE MORAL GOOD AND WHAT
IS SIN?  WHAT ARE DEATH, JUDGMENT, AND RETRIBUTION AFTER DEATH? 

     *         *         *        *         * 

"EVER SINCE PRIMORDIAL DAYS, NUMEROUS PEOPLES HAVE HAD A CERTAIN
PERCEPTION OF THAT HIDDEN POWER WHICH HOVERS OVER THE COURSE OF THINGS
AND OVER THE EVENTS THAT MAKE UP THE LIVES OF MEN; SOME HAVE EVEN COME
TO KNOW OF A SUPREME BEING AND FATHER.  RELIGIONS IN AN ADVANCED
CULTURE HAVE BEEN ABLE TO USE MORE REFINED CONCEPTS AND A MORE
DEVELOPED LANGUAGE IN THEIR STRUGGLE FOR AN ANSWER TO MAN'S RELIGIOUS
QUESTIONS. 

     *         *         *         *         * 

"NOTHING THAT IS TRUE AND HOLY IN THESE RELIGIONS IS SCORNED BY THE
CATHOLIC CHURCH.  CEASELESSLY THE CHURCH PROCLAIMS CHRIST, 'THE WAY,
THE TRUTH, AND THE LIFE,' IN WHOM GOD RECONCILED ALL THINGS TO
HIMSELF.  THE CHURCH REGARDS WITH SINCERE REVERENCE THOSE WAYS OF
ACTION AND OF LIFE, PRECEPTS AND TEACHINGS WHICH, ALTHOUGH THEY DIFFER
FROM THE ONES SHE SETS FORTH, REFLECT NONETHELESS A RAY OF THAT TRUTH
WHICH ENLIGHTENS ALL MEN." 

DR. DAVID SAVILLE MUZZEY, A LEADER IN THE ETHICAL CULTURE MOVEMENT,
STATES IN HIS BOOK, ETHICS AS A RELIGION (1951), THAT "EVERYBODY EXCEPT
THE AVOWED ATHEISTS (AND THEY ARE COMPARATIVELY FEW) BELIEVES IN SOME
KIND OF GOD," AND THAT "THE PROPER QUESTION TO ASK, THEREFORE, IS NOT
THE FUTILE ONE, DO YOU BELIEVE IN GOD?  BUT RATHER, WHAT KIND OF GOD DO
YOU BELIEVE IN?"  ID., AT 86-87.  DR. MUZZEY ATTEMPTS TO ANSWER THAT
QUESTION: 

"INSTEAD OF POSITING A PERSONAL GOD, WHOSE EXISTENCE MAN CAN NEITHER
PROVE NOR DISPROVE, THE ETHICAL CONCEPT IS FOUNDED ON HUMAN
EXPERIENCE.  IT IS ANTHROPOCENTRIC, NOT THEOCENTRIC.  RELIGION, FOR ALL
THE VARIOUS DEFINITIONS THAT HAVE BEEN GIVEN OF IT. MUST SURELY MEAN
THE DEVOTION OF MAN TO THE HIGHEST IDEAL THAT HE CAN CONCEIVE.  AND
THAT IDEAL IS A COMMUNITY OF SPIRITS IN WHICH THE LATENT MORAL
POTENTIALITIES OF MEN SHALL HAVE BEEN ELICITED BY THEIR RECIPROCAL
ENDEAVORS TO CULTIVATE THE BEST IN THEIR FELLOW MEN.  WHAT ULTIMATE
REALITY IS WE DO NOT KNOW; BUT WE HAVE THE FAITH THAT IT EXPRESSES
ITSELF IN THE HUMAN WORLD AS THE POWER WHICH INSPIRES IN MEN MORAL
PURPOSE."   AT 95. 

"THUS THE 'GOD' THAT WE LOVE IS NOT THE FIGURE ON THE GREAT WHITE
THRONE, BUT THE PERFECT PATTERN, ENVISIONED BY FAITH, OF HUMANITY AS IT
SHOULD BE, PURGED OF THE EVIL ELEMENTS WHICH RETARD ITS PROGRESS TOWARD
'THE KNOWLEDGE, LOVE AND PRACTICE OF THE RIGHT.'"  AT 98. 

THESE ARE BUT A FEW OF THE VIEWS THAT COMPRISE THE BROAD SPECTRUM OF
RELIGIOUS BELIEFS FOUND AMONG US.  BUT THEY DEMONSTRATE VERY CLEARLY
THE DIVERSE MANNERS IN WHICH BELIEFS, EQUALLY PARAMOUNT IN THE LIVES OF
THEIR POSSESSORS, MAY BE ARTICULATED.  THEY FURTHER REVEAL THE
DIFFICULTIES INHERENT IN PLACING TOO NARROW A CONSTRUCTION ON THE
PROVISIONS OF SEC. 6(J) AND THEREBY LEND CONCLUSIVE SUPPORT TO THE
CONSTRUCTION WHICH WE TODAY FIND THAT CONGRESS INTENDED. 

5.  WE RECOGNIZE THE DIFFICULTIES THAT HAVE ALWAYS FACED THE TRIER OF
FACT IN THESE CASES.  WE HOPE THAT THE TEST THAT WE LAY DOWN PROVES
LESS ONEROUS.  THE EXAMINER IS FURNISHED A STANDARD THAT PERMITS
CONSIDERATION OF CRITERIA WITH WHICH HE HAS HAD CONSIDERABLE
EXPERIENCE.  WHILE THE APPLICANT'S WORDS MAY DIFFER, THE TEST IS SIMPLE
OF APPLICATION.  IT IS ESSENTIALLY AN OBJECTIVE ONE, NAMELY, DOES THE
CLAIMED BELIEF OCCUPY THE SAME PLACE IN THE LIFE OF THE OBJECTOR AS AN
ORTHODOX BELIEF IN GOD HOLDS IN THE LIFE OF ONE CLEARLY QUALIFIED FOR
EXEMPTION? 

MOREOVER, IT MUST BE REMEMBERED THAT IN RESOLVING THESE EXEMPTION
PROBLEMS ONE DEALS WITH THE BELIEFS OF DIFFERENT INDIVIDUALS WHO WILL
ARTICULATE THEM IN A MULTITUDE OF WAYS.  IN SUCH AN INTENSELY PERSONAL
AREA, OF COURSE, THE CLAIM OF THE REGISTRANT THAT HIS BELIEF IS AN
ESSENTIAL PART OF A RELIGIOUS FAITH MUST BE GIVEN GREAT WEIGHT. 
RECOGNITION OF THIS WAS IMPLICIT IN THIS LANGUAGE, CITED BY THE BERMAN
COURT FROM STATE V. AMANA SOCIETY, 132 IOWA 304, 109 N.W. 894 (1906): 

"SURELY A SCHEME OF LIFE DESIGNED TO OBVIATE MAN'S INHUMANITY TO MAN,
AND BY REMOVING TEMPTATIONS, AND ALL THE ALLUREMENTS OF AMBITION AND
AVARICE, TO NURTURE THE VIRTUES OF UNSELFISHNESS, PATIENCE, LOVE, AND
SERVICE, OUGHT NOT TO BE DENOUNCED AS NOT PERTAINING TO RELIGION WHEN
ITS DEVOTEES REGARD IT AS AN ESSENTIAL TENET OF THEIR RELIGIOUS
FAITH."  132 IOWA, AT 315, 109 N.W., AT 898, CITED IN BERMAN V. UNITED
STATES, 156 F.2D 377, 381. 

THE VALIDITY OF WHAT HE BELIEVES CANNOT BE QUESTIONED.  SOME
THEOLOGIANS, AND INDEED SOME EXAMINERS, MIGHT BE TEMPTED TO QUESTION
THE EXISTENCE OF THE REGISTRANT'S "SUPREME BEING" OR THE TRUTH OF HIS
CONCEPTS.  BUT THESE ARE INQUIRIES FORECLOSED TO GOVERNMENT.  AS MR.
JUSTICE DOUGLAS STATED IN UNITED STATES V. BALLARD, 322 U.S. 78, 86
(1944):  "MEN MAY BELIEVE WHAT THEY CANNOT PROVE.  THEY MAY NOT BE PUT
TO THE PROOF OF THEIR RELIGIOUS DOCTRINES OR BELIEFS.  RELIGIOUS
EXPERIENCES WHICH ARE AS REAL AS LIFE TO SOME MAY BE INCOMPREHENSIBLE
TO OTHERS."  LOCAL BOARDS AND COURTS IN THIS SENSE ARE NOT FREE TO
REJECT BELIEFS BECAUSE THEY CONSIDER THEM "INCOMPREHENSIBLE."  THEIR
TASK IS TO DECIDE WHETHER THE BELIEFS PROFESSED BY A REGISTRANT ARE
SINCERELY HELD AND WHETHER THEY ARE, IN HIS OWN SCHEME OF THINGS,
RELIGIOUS. 

BUT WE HASTEN TO EMPHASIZE THAT WHILE THE "TRUTH" OF A BELIEF IS NOT
OPEN TO QUESTION, THERE REMAINS THE SIGNIFICANT QUESTION WHETHER IT IS
"TRULY HELD."  THIS IS THE THRESHOLD QUESTION OF SINCERITY WHICH MUST
BE RESOLVED IN EVERY CASE.  IT IS, OF COURSE, A QUESTION OF FACT - A
PRIME CONSIDERATION TO THE VALIDITY OF EVERY CLAIM FOR EXEMPTION AS A
CONSCIENTIOUS OBJECTOR.  THE ACT PROVIDES A COMPREHENSIVE SCHEME FOR
ASSISTING THE APPEAL BOARDS IN MAKING THIS DETERMINATION, PLACING AT
THEIR SERVICE THE FACILITIES OF THE DEPARTMENT OF JUSTICE, INCLUDING
THE FEDERAL BUREAU OF INVESTIGATION AND HEARING OFFICERS.  FINALLY, WE
WOULD POINT OUT THAT IN ESTEP V. UNITED STATES, 327 U.S. 114 (1946),
THIS COURT HELD THAT: 

"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." 
AT 122-123. 

             APPLICATION OF SEC. 6(J) TO THE INSTANT CASES. 

AS WE NOTED EARLIER, THE STATUTORY DEFINITION EXCEPTS THOSE
REGISTRANTS WHOSE BELIEFS ARE BASED ON A "MERELY PERSONAL MORAL CODE." 
THE RECORDS IN THESE CASES, HOWEVER, SHOW THAT AT NO TIME DID ANY ONE
OF THE APPLICANTS SUGGEST THAT HIS OBJECTION WAS BASED ON A "MERELY
PERSONAL MORAL CODE."  INDEED AT THE OUTSET EACH OF THEM CLAIMED IN HIS
APPLICATION THAT HIS OBJECTION WAS BASED ON A RELIGIOUS BELIEF.  WE
HAVE CONSTRUED THE STATUTORY DEFINITION BROADLY AND IT FOLLOWS THAT ANY
EXCEPTION TO IT MUST BE INTERPRETED NARROWLY.  THE USE BY CONGRESS OF
THE WORDS "MERELY PERSONAL" SEEMS TO US TO RESTRICT THE EXCEPTION TO A
MORAL CODE WHICH IS NOT ONLY PERSONAL BUT WHICH IS THE SOLE BASIS FOR
THE REGISTRANT'S BELIEF AND IS IN NO WAY RELATED TO A SUPREME BEING. 
IT FOLLOWS, THEREFORE, THAT IF THE CLAIMED RELIGIOUS BELIEFS OF THE
RESPECTIVE REGISTRANTS IN THESE CASES MEET THE TEST THAT WE LAY DOWN
THEN THEIR OBJECTIONS CANNOT BE BASED ON A "MERELY PERSONAL" MORAL
CODE. 

IN SEEGER, NO. 50, THE COURT OF APPEALS FAILED TO FIND SUFFICIENT
"EXTERNALLY COMPELLED BELIEFS."  HOWEVER, IT DID FIND THAT "IT WOULD
SEEM IMPOSSIBLE TO SAY WITH ASSURANCE THAT SEEGER IS NOT BOWING TO
'EXTERNAL COMMANDS' IN VIRTUALLY THE SAME SENSE AS IS THE OBJECTOR WHO
DEFERS TO THE WILL OF A SUPERNATURAL POWER."  326 F.2D, AT 853.  IT
FOUND LITTLE DISTINCTION BETWEEN JAKOBSON'S DEVOTION TO A MYSTICAL
FORCE OF "GODNESS" AND SEEGER'S COMPULSION TO "GOODNESS."  OF COURSE,
AS WE HAVE SAID, THE STATUTE DOES NOT DISTINGUISH BETWEEN EXTERNALLY
AND INTERNALLY DERIVED BELIEFS.  SUCH A DETERMINATION WOULD, AS THE
COURT OF APPEALS OBSERVED, PROVE IMPOSSIBLE AS A PRACTICAL MATTER, AND
WE HAVE FOUND THAT CONGRESS INTENDED NO SUCH DISTINCTION. 

THE COURT OF APPEALS ALSO FOUND THAT THERE WAS NO QUESTION OF THE
APPLICANT'S SINCERITY.  HE WAS A PRODUCT OF A DEVOUT ROMAN CATHOLIC
HOME; HE WAS A CLOSE STUDENT OF QUAKER BELIEFS FROM WHICH HE SAID "MUCH
OF HIS THOUGHT IS DERIVED"; HE APPROVED OF THEIR OPPOSITION TO WAR IN
ANY FORM; HE DEVOTED HIS SPARE HOURS TO THE AMERICAN FRIENDS SERVICE
COMMITTEE AND WAS ASSIGNED TO HOSPITAL DUTY.    IN SUMMARY, SEEGER
PROFESSED "RELIGIOUS BELIEF" AND "RELIGIOUS FAITH."  HE DID NOT DISAVOW
ANY BELIEF "IN A RELATION TO A SUPREME BEING"; INDEED HE STATED THAT
"THE COSMIC ORDER DOES, PERHAPS, SUGGEST A CREATIVE INTELLIGENCE."  HE
DECRIED THE TREMENDOUS "SPIRITUAL" PRICE MAN MUST PAY FOR HIS
WILLINGNESS TO DESTROY HUMAN LIFE.  IN LIGHT OF HIS BELIEFS AND THE
UNQUESTIONED SINCERITY WITH WHICH HE HELD THEM, WE THINK THE BOARD, HAD
IT APPLIED THE TEST WE PROPOSE TODAY, WOULD HAVE GRANTED HIM THE
EXEMPTION.  WE THINK IT CLEAR THAT THE BELIEFS WHICH PROMPTED HIS
OBJECTION OCCUPY THE SAME PLACE IN HIS LIFE AS THE BELIEF IN A
TRADITIONAL DEITY HOLDS IN THE LIVES OF HIS FRIENDS, THE QUAKERS.  WE
ARE REMINDED ONCE MORE OF DR. TILLICH'S THOUGHTS: 

"AND IF THAT WORD (GOD) HAS NOT MUCH MEANING FOR YOU, TRANSLATE IT,
AND SPEAK OF THE DEPTHS OF YOUR LIFE, OF THE SOURCE OF YOUR BEING, OF
YOUR ULTIMATE CONCERN, OF WHAT YOU TAKE SERIOUSLY WITHOUT ANY
RESERVATION.  PERHAPS, IN ORDER TO DO SO, YOU MUST FORGET EVERYTHING
TRADITIONAL THAT YOU HAVE LEARNED ABOUT GOD  ...  ."  TILLICH, THE
SHAKING OF THE FOUNDATIONS 57 (1948). 

IT MAY BE THAT SEEGER DID NOT CLEARLY DEMONSTRATE WHAT HIS BELIEFS
WERE WITH REGARD TO THE USUAL UNDERSTANDING OF THE TERM "SUPREME
BEING."  BUT AS WE HAVE SAID CONGRESS DID NOT INTEND THAT TO BE THE
TEST.  WE THEREFORE AFFIRM THE JUDGMENT IN NO. 50. 

IN JAKOBSON, NO. 51, THE COURT OF APPEALS FOUND THAT THE REGISTRANT
DEMONSTRATED THAT HIS BELIEF AS TO OPPOSITION TO WAR WAS RELATED TO A
SUPREME BEING.  WE AGREE AND AFFIRM THAT JUDGMENT. 

WE REACH A LIKE CONCLUSION IN NO. 29.  IT WILL BE REMEMBERED THAT
PETER ACKNOWLEDGED "SOME POWER MANIFEST IN NATURE  ... THE SUPREME
EXPRESSION" THAT HELPS MAN IN ORDERING HIS LIFE.  AS TO WHETHER HE
WOULD CALL THAT BELIEF IN A SUPREME BEING, HE REPLIED, "YOU COULD CALL
THAT A BELIEF IN THE SUPREME BEING OR GOD.  THESE JUST DO NOT HAPPEN TO
BE THE WORDS I USE."  WE THINK THAT UNDER THE TEST WE ESTABLISH HERE
THE BOARD WOULD GRANT THE EXEMPTION TO PETER AND WE THEREFORE REVERSE
THE JUDGMENT IN NO. 29.  IT IS SO ORDERED. 

FN1  SEE UNITED STATES V. KAUTEN, 133 F.2D 703 (C.A.2D CIR. 1943);
BERMAN V. UNITED STATES, 156 F.2D 377 (C.A. 9TH CIR. 1946). 

FN2  SEE WEBSTER'S NEW INTERNATIONAL DICTIONARY (SECOND EDITION);
WEBSTER'S NEW COLLEGIATE DICTIONARY (1949). 

FN3  A DEFINITION OF "RELIGIOUS TRAINING AND BELIEF" IDENTICAL TO
THAT IN SEC. 6(J) IS FOUND IN SEC. 337 OF THE IMMIGRATION AND
NATIONALITY ACT, 66 STAT. 258, 8 U.S.C. SEC. 1448(A) (1958 ED.).  IT IS
NOTEWORTHY THAT IN CONNECTION WITH THIS ACT, THE SENATE SPECIAL
SUBCOMMITTEE TO INVESTIGATE IMMIGRATION AND NATURALIZATION STATED:
"THE SUBCOMMITTEE REALIZES AND RESPECTS THE FACT THAT THE QUESTION OF
WHETHER OR NOT A PERSON MUST BEAR ARMS IN DEFENSE OF HIS COUNTRY MAY BE
ONE WHICH INVADES THE PROVINCE OF RELIGION AND PERSONAL CONSCIENCE." 
THUS, IT RECOMMENDED THAT AN ALIEN NOT BE REQUIRED TO VOW TO BEAR ARMS
WHEN HE ASSERTED "HIS OPPOSITION TO PARTICIPATION IN WAR IN ANY FORM
BECAUSE OF HIS PERSONAL RELIGIOUS TRAINING AND BELIEF."  S. REP. NO.
1515, 81ST CONG., 2D SESS., 742, 746. 

FN4  DRAFT DECLARATION ON THE CHURCH'S RELATIONS WITH NON-CHRISTIANS,
COUNCIL DAYBOOK, VATICAN II, 3D SESS., P. 282, N.C.W.C., WASHINGTON,
D.C., 1965. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IF I READ THE STATUTE DIFFERENTLY FROM THE COURT, I WOULD HAVE
DIFFICULTIES.  FOR THEN THOSE WHO EMBRACED ONE RELIGIOUS FAITH RATHER
THAN ANOTHER WOULD BE SUBJECT TO PENALTIES; AND THAT KIND OF
DISCRIMINATION, AS WE HELD IN SHERBERT V. VERNER, 374 U.S. 398, WOULD
VIOLATE THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT.  IT WOULD ALSO
RESULT IN A DENIAL OF EQUAL PROTECTION BY PREFERRING SOME RELIGIONS
OVER OTHERS - AN INVIDIOUS DISCRIMINATION THAT WOULD RUN AFOUL OF THE
DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  SEE BOLLING V. SHARPE, 347
U.S. 497. 

THE LEGISLATIVE HISTORY OF THIS ACT LEAVES MUCH IN THE DARK.  BUT IT
IS, IN MY OPINION, NOT A TOUR DE FORCE IF WE CONSTRUE THE WORDS
"SUPREME BEING" TO INCLUDE THE COSMOS, AS WELL AS AN ANTHROPOMORPHIC
ENTITY.  IF IT IS A TOUR DE FORCE SO TO HOLD, IT IS NO MORE SO THAN
OTHER INSTANCES WHERE WE HAVE GONE TO EXTREMES TO CONSTRUE AN ACT OF
CONGRESS TO SAVE IT FROM DEMISE ON CONSTITUTIONAL GROUNDS.  IN A MORE
EXTREME CASE THAN THE PRESENT ONE WE SAID THAT THE WORDS OF A STATUTE
MAY BE STRAINED "IN THE CANDID SERVICE OF AVOIDING A SERIOUS
CONSTITUTIONAL DOUBT."  UNITED STATES V. RUMELY, 345 U.S. 41, 47. 
(FN1) 

THE WORDS "A SUPREME BEING" HAVE NO NARROW TECHNICAL MEANING IN THE
FIELD OF RELIGION.  LONG BEFORE THE BIRTH OF OUR JUDEO-CHRISTIAN
CIVILIZATION THE IDEA OF GOD HAD TAKEN HOLD IN MANY FORMS.  MENTION OF
ONLY TWO - HINDUISM AND BUDDHISM - ILLUSTRATES THE FLUIDITY AND
EVANESCENT SCOPE OF THE CONCEPT.  IN THE HINDU RELIGION THE SUPREME
BEING IS CONCEIVED IN THE FORMS OF SEVERAL CULT DEITIES.   THE CHIEF OF
THESE, WHICH STAND FOR THE HINDU TRIAD, ARE BRAHMA, VISHNU AND SIVA. 
ANOTHER DEITY, AND THE ONE MOST WIDELY WORSHIPPED, IS SAKTI, THE MOTHER
GODDESS, CONCEIVED AS POWER, BOTH DESTRUCTIVE AND CREATIVE.  THOUGH
HINDU RELIGION ENCOMPASSES THE WORSHIP OF MANY DEITIES, IT BELIEVES IN
ONLY ONE SINGLE GOD, THE ETERNALLY EXISTENT ONE BEING WITH HIS MANIFOLD
ATTRIBUTES AND MANIFESTATIONS.  THIS IDEA IS EXPRESSED IN RIGVEDA, THE
EARLIEST SACRED TEXT OF THE HINDUS, IN VERSE 46 OF A HYMN ATTRIBUTED TO
THE MYTHICAL SEER DIRGHATAMAS (RIGVEDA, I, 164): 

"THEY CALL IT INDRA, MITRA, VARUNA AND AGNI: 

AND ALSO HEAVENLY BEAUTIFUL GARUTMAN: 

THE REAL IS ONE, THOUGH SAGES NAME IT VARIOUSLY: 

THEY CALL IT AGNI, YAMA, MATARISVAN." 

SEE SMART, REASONS AND FAITHS, P. 35, N. 1 (1958); 32 HARVARD
ORIENTAL SERIES, PP. 434-435 (LANMAN ED. 1925).  SEE GENERALLY 31 AND
32 ID.; EDITORS OF LIFE MAGAZINE, THE WORLD'S GREAT RELIGIONS, VOL. 1,
PP. 17-48 (1963). 

INDIAN PHILOSOPHY, WHICH COMPRISES SEVERAL SCHOOLS OF THOUGHT, HAS
ADVANCED DIFFERENT THEORIES OF THE NATURE OF THE SUPREME BEING. 
ACCORDING TO THE UPANISADS, HINDU SACRED TEXTS, THE SUPREME BEING IS
DESCRIBED AS THE POWER WHICH CREATES AND SUSTAINS EVERYTHING, AND TO
WHICH THE CREATED THINGS RETURN UPON DISSOLUTION.  THE WORD WHICH IS
COMMONLY USED IN THE UPANISADS TO INDICATE THE SUPREME BEING IS
BRAHMAN.  PHILOSOPHICALLY, THE SUPREME BEING IS THE TRANSCENDENTAL
REALITY WHICH IS TRUTH, KNOWLEDGE, AND BLISS.  IT IS THE SOURCE OF THE
ENTIRE UNIVERSE.  IN THIS ASPECT BRAHMAN IS ISVARA, A PERSONAL LORD AND
CREATOR OF THE UNIVERSE, AN OBJECT OF WORSHIP.  BUT, IN THE VIEW OF ONE
SCHOOL OF THOUGHT, THAT OF SANKARA, EVEN THIS IS AN IMPERFECT AND
LIMITED CONCEPTION OF BRAHMAN WHICH MUST BE TRANSCENDED:  TO THINK OF
BRAHMAN AS THE CREATOR OF THE MATERIAL WORLD IS NECESSARILY TO FORM A
CONCEPT INFECTED WITH ILLUSION, OR MAYA - WHICH IS WHAT THE WORLD
REALLY IS, IN HIGHEST TRUTH.  ULTIMATELY, MYSTICALLY, BRAHMAN MUST BE
UNDERSTOOD AS WITHOUT ATTRIBUTES, AS NETI NETI (NOT THIS, NOT THAT). 
SEE SMART, OP. CIT., SUPRA, P. 133. 

BUDDHISM - WHOSE ADVENT MARKED THE REFORM OF HINDUISM -CONTINUED
SOMEWHAT THE SAME CONCEPT.  AS STATED BY NANCY WILSON ROSS, "GOD - IF I
MAY BORROW THAT WORD FOR A MOMENT - THE UNIVERSE, AND MAN ARE ONE
INDISSOLUBLE EXISTENCE, ONE TOTAL WHOLE.  ONLY THIS - CAPITAL THIS -
IS.  ANYTHING AND EVERYTHING THAT APPEARS TO US AS AN INDIVIDUAL ENTITY
OR PHENOMENON, WHETHER IT BE A PLANET OR AN ATOM, A MOUSE OR A MAN, IS
BUT A TEMPORARY MANIFESTATION OF THIS IN FORM; EVERY ACTIVITY THAT
TAKES PLACE, WHETHER IT BE BIRTH OR DEATH, LOVING OR EATING BREAKFAST,
IS BUT A TEMPORARY MANIFESTATION OF THIS IN ACTIVITY.  WHEN WE LOOK AT
THINGS THIS WAY, NATURALLY WE CANNOT BELIEVE THAT EACH INDIVIDUAL
PERSON HAS BEEN ENDOWED WITH A SPECIAL AND INDIVIDUAL SOUL OR SELF. 
EACH ONE OF US IS BUT A CELL, AS IT WERE, IN THE BODY OF THE GREAT
SELF, A CELL THAT COMES INTO BEING, PERFORMS ITS FUNCTIONS, AND PASSES
AWAY, TRANSFORMED INTO ANOTHER MANIFESTATION.  THOUGH WE HAVE TEMPORARY
INDIVIDUALITY, THAT TEMPORARY, LIMITED INDIVIDUALITY IS NOT EITHER A
TRUE SELF OR OUR TRUE SELF.  OUR TRUE SELF IS THE GREAT SELF; OUR TRUE
BODY IS THE BODY OF REALITY, OR THE DHARMAKAYA, TO GIVE IT ITS
TECHNICAL BUDDHIST NAME."  THE WORLD OF ZEN, P. 18 (1960). 

DOES A BUDDHIST BELIEVE IN "GOD" OR A "SUPREME BEING"?  THAT, OF
COURSE, DEPENDS ON HOW ONE DEFINES "GOD," AS ONE EMINENT STUDENT OF
BUDDHISM HAS EXPLAINED: 

"IT HAS OFTEN BEEN SUGGESTED THAT BUDDHISM IS AN ATHEISTIC SYSTEM OF
THOUGHT, AND THIS ASSUMPTION HAS GIVEN RISE TO QUITE A NUMBER OF
DISCUSSIONS.  SOME HAVE CLAIMED THAT SINCE BUDDHISM KNEW NO GOD, IT
COULD NOT BE A RELIGION; OTHERS THAT SINCE BUDDHISM OBVIOUSLY WAS A
RELIGION WHICH KNEW NO GOD, THE BELIEF IN GOD WAS NOT ESSENTIAL TO
RELIGION.  THESE DISCUSSIONS ASSUME THAT GOD IS AN UNAMBIGUOUS TERM,
WHICH IS BY NO MEANS THE CASE."  CONZE, BUDDHISM, PP. 38-39 (1959). 

DR. CONZE THEN SAYS THAT IF "GOD" IS TAKEN TO MEAN A PERSONAL CREATOR
OF THE UNIVERSE, THEN THE BUDDHIST HAS NO INTEREST IN THE CONCEPT. 
ID., P. 39.  BUT IF "GOD" MEANS SOMETHING LIKE THE STATE OF ONENESS
WITH GOD AS DESCRIBED BY SOME CHRISTIAN MYSTICS, THEN THE BUDDHIST
SURELY BELIEVES IN "GOD," SINCE THIS STATE IS ALMOST INDISTINGUISHABLE
FROM THE BUDDHIST CONCEPT OF NIRVANA, "THE SUPREME REALITY; ...  THE
ETERNAL, HIDDEN AND INCOMPREHENSIBLE PEACE."  ID., PP. 39-40.  AND
FINALLY, IF "GOD" MEANS ONE OF THE MANY DEITIES IN AN AT LEAST
SUPERFICIALLY POLYTHEISTIC RELIGION LIKE HINDUISM, THEN BUDDHISM
TOLERATES A BELIEF IN MANY GODS:  "THE BUDDHISTS BELIEVE THAT A FAITH
CAN BE KEPT ALIVE ONLY IF IT CAN BE ADAPTED TO THE MENTAL HABITS OF THE
AVERAGE PERSON.  IN CONSEQUENCE, WE FIND THAT, IN THE EARLIER
SCRIPTURES, THE DEITIES OF BRAHMANISM ARE TAKEN FOR GRANTED AND THAT,
LATER ON, THE BUDDHISTS ADOPTED THE LOCAL GODS OF ANY DISTRICT TO WHICH
THEY CAME."  ID., P. 42. 

WHEN THE PRESENT ACT WAS ADOPTED IN 1948 WE WERE A NATION OF
BUDDHISTS, CONFUCIANISTS, AND TAOISTS, AS WELL AS CHRISTIANS.  HAWAII,
THEN A TERRITORY, WAS INDEED FILLED WITH BUDDHISTS, BUDDHISM BEING
"PROBABLY THE MAJOR FAITH, IF PROTESTANTISM AND ROMAN CATHOLICISM ARE
DEEMED DIFFERENT FAITHS."  STOKES AND PFEFFER, CHURCH AND STATE IN THE
UNITED STATES, P. 560 (1964).  ORGANIZED BUDDHISM FIRST CAME TO HAWAII
IN 1887 WHEN JAPANESE LABORERS WERE BROUGHT TO WORK ON THE
PLANTATIONS.  THERE ARE NOW NUMEROUS BUDDHIST SECTS IN HAWAII, AND THE
TEMPLE OF THE SHIN SECT IN HONOLULU IS SAID TO HAVE THE LARGEST
CONGREGATION OF ANY RELIGIOUS ORGANIZATION IN THE CITY.  SEE
MULHOLLAND, RELIGION IN HAWAII, PP. 44-50 (1961). 

IN THE CONTINENTAL UNITED STATES BUDDHISM IS FOUND "IN REAL STRENGTH"
IN UTAH, ARIZONA, WASHINGTON, OREGON, AND CALIFORNIA.  "MOST OF THE
BUDDHISTS IN THE UNITED STATES ARE JAPANESE OR JAPANESE-AMERICANS;
HOWEVER, THERE ARE 'ENGLISH' DEPARTMENTS IN SAN FRANCISCO, LOS ANGELES,
AND TACOMA."  MEAD, HANDBOOK OF DENOMINATIONS, P. 61 (1961).  THE
BUDDHIST CHURCHES OF NORTH AMERICA, ORGANIZED IN 1914 AS THE BUDDHIST
MISSION OF NORTH AMERICA AND INCORPORATED UNDER THE PRESENT NAME IN
1942, REPRESENT THE JODO SHINSHU SECT OF BUDDHISM IN THIS COUNTRY. 
THIS SECT IS THE ONLY BUDDHIST GROUP REPORTING INFORMATION TO THE
ANNUAL YEARBOOK OF AMERICAN CHURCHES.  IN 1961, THE LATEST YEAR FOR
WHICH FIGURES ARE AVAILABLE, THIS GROUP ALONE HAD 55 CHURCHES AND AN
INCLUSIVE MEMBERSHIP OF 60,000; IT MAINTAINED 89 CHURCH SCHOOLS WITH A
TOTAL ENROLLMENT OF 11,150.  YEARBOOK OF AMERICAN CHURCHES, P. 30
(1965).  ACCORDING TO ONE SOURCE, THE TOTAL NUMBER OF BUDDHISTS OF ALL

WHEN THE CONGRESS SPOKE IN THE VAGUE GENERAL TERMS OF A SUPREME BEING
I CANNOT, THEREFORE, ASSUME THAT IT WAS SO PAROCHIAL AS TO USE THE
WORDS IN THE NARROW SENSE URGED ON US.  I WOULD ATTRIBUTE TOLERANCE AND
SOPHISTICATION TO THE CONGRESS, COMMENSURATE WITH THE RELIGIOUS
COMPLEXION OF OUR COMMUNITIES.  IN SUM, I AGREE WITH THE COURT THAT ANY
PERSON OPPOSED TO WAR ON THE BASIS OF A SINCERE BELIEF, WHICH IN HIS
LIFE FILLS THE SAME PLACE AS A BELIEF IN GOD FILLS IN THE LIFE OF AN
ORTHODOX RELIGIONIST, IS ENTITLED TO EXEMPTION UNDER THE STATUTE.  NONE
COMES TO US AN AVOWEDLY IRRELIGIOUS PERSON OR AS AN ATHEIST; (FN2) ONE,
AS A SINCERE BELIEVER IN "GOODNESS AND VIRTUE FOR THEIR OWN SAKES." 
HIS QUESTIONS AND DOUBTS ON THEOLOGICAL ISSUES, AND HIS WONDER, ARE NO
MORE ALIEN TO THE STATUTORY STANDARD THAN ARE THE AWE-INSPIRED
QUESTIONS OF A DEVOUT BUDDHIST. 

FN1  AND SEE CROWELL V. BENSON, 285 U.S. 22, 62; ULLMANN V. UNITED
STATES, 350 U.S. 422, 433; ASHWANDER V. TVA, 297 U.S. 288, 341, 348
(CONCURRING OPINION). 

FN2  IF HE WERE AN ATHEIST, QUITE DIFFERENT PROBLEMS WOULD BE
PRESENTED.  CF. TORCASO V. WATKINS, 367 U.S. 488. 
..END :



















DEPARTMENT OF MENTAL HYGIENE OF CALIFORNIA V. KIRCHNER, ADMINISTRATRIX
380 U.S. 194 


NO. 111.  ARGUED JANUARY 19, 1965.  - DECIDED MARCH 8, 1965.  - 60 CAL.
2D 716, 388 P.2D 720, JUDGMENT VACATED AND CASE REMANDED. 


PETITIONER SUED THE ADMINISTRATRIX OF THE ESTATE OF A DECEASED
DAUGHTER OF AN ADJUDGED INCOMPETENT FOR THE COST OF SUPPORT FURNISHED
THE INCOMPETENT IN A STATE MENTAL INSTITUTION AND RECOVERED A JUDGMENT
WHICH WAS REVERSED BY THE SUPREME COURT OF CALIFORNIA.  THAT COURT
FOUND THAT THE STATE STATUTE CREATING SUPPORT LIABILITY "VIOLATES THE
BASIC CONSTITUTIONAL GUARANTY OF EQUAL PROTECTION OF THE LAW  ...  ." 
HELD:  SINCE THE CALIFORNIA COURT DID NOT SPECIFY WHETHER ITS HOLDING
WAS BASED ON THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES
CONSTITUTION OR THE EQUIVALENT PROVISION OF THE STATE CONSTITUTION, OR
BOTH, THIS COURT CANNOT BE CERTAIN THAT THE JUDGMENT BELOW WAS NOT
BASED ON AN ADEQUATE AND INDEPENDENT NONFEDERAL GROUND.  IN LIGHT OF
THE DOUBT AS TO THIS COURT'S JURISDICTION, THE JUDGMENT IS VACATED AND
THE CASE REMANDED.  PP. 195-201. 

DEPARTMENT OF MENTAL HYGIENE OF CALIFORNIA V. KIRCHNER, ADMINISTRATRIX. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

MRS. AUGUSTE SCHAECHE WAS ADJUDGED INCOMPETENT IN 1953 AND COMMITTED
TO A CALIFORNIA STATE MENTAL INSTITUTION OPERATED BY PETITIONER. 
CALIFORNIA WELFARE AND INSTITUTIONS CODE SEC. 6650 PROVIDES IN
PERTINENT PART: 

"THE HUSBAND, WIFE, FATHER, MOTHER, OR CHILDREN OF A MENTALLY ILL
PERSON OR INEBRIATE, AND THE ADMINISTRATORS OF THEIR ESTATES, AND THE
ESTATE OF SUCH MENTALLY ILL PERSON OR INEBRIATE, SHALL BE LIABLE FOR
HIS CARE, SUPPORT, AND MAINTENANCE IN A STATE INSTITUTION OF WHICH HE
IS AN INMATE.  THE LIABILITY OF SUCH PERSONS AND ESTATES SHALL BE A
JOINT AND SEVERAL LIABILITY  ...  ." 

ELLINOR VANCE, THE DAUGHTER OF MRS. SCHAECHE, DIED IN 1960 AND
RESPONDENT WAS APPOINTED ADMINISTRATRIX OF HER ESTATE.  PETITIONER
FILED A CLAIM FOR $7,554.22 WITH RESPONDENT, THAT BEING THE COST OF
SUPPORT FURNISHED TO THE INCOMPETENT FROM 1956 TO 1960, WHICH WAS
REJECTED BY RESPONDENT.  PETITIONER THEN FILED SUIT FOR THAT AMOUNT AND
OBTAINED JUDGMENT ON THE PLEADINGS.  THE DISTRICT COURT OF APPEAL
AFFIRMED, 29 CAL. RPTR.  312, BUT THE SUPREME COURT OF CALIFORNIA
REVERSED, FINDING THAT SEC. 6650 "VIOLATES THE BASIC CONSTITUTIONAL
GUARANTY OF EQUAL PROTECTION OF THE LAW ...  ."  60 CAL. 2D 716, 717,
388 P.2D 720.  WE GRANTED CERTIORARI TO CONSIDER THE IMPORTANT
QUESTIONS INVOLVED, 379 U.S. 811.  AFTER PLENARY BRIEFING AND ARGUMENT,
HOWEVER, WE ARE UNABLE TO SAY WITH REQUISITE ASSURANCE THAT THIS COURT
HAS JURISDICTION IN THE PREMISES. 

THE CALIFORNIA SUPREME COURT DID NOT STATE WHETHER ITS HOLDING WAS
BASED ON THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES OR THE EQUIVALENT PROVISIONS OF THE
CALIFORNIA CONSTITUTION, (FN1) OR BOTH.  WHILE WE MIGHT SPECULATE FROM
THE CHOICE OF WORDS USED IN THE OPINION, AND THE AUTHORITIES CITED BY
THE COURT, WHICH PROVISION WAS THE BASIS FOR THE JUDGMENT OF THE STATE
COURT, WE ARE UNABLE TO SAY WITH ANY DEGREE OF CERTAINTY THAT THE
JUDGMENT OF THE CALIFORNIA SUPREME COURT WAS NOT BASED ON AN ADEQUATE
AND INDEPENDENT NONFEDERAL GROUND.  THIS COURT IS ALWAYS WARY OF
ASSUMING JURISDICTION OF A CASE FROM A STATE COURT UNLESS IT IS PLAIN
THAT A FEDERAL QUESTION IS NECESSARILY PRESENTED, AND THE PARTY SEEKING
REVIEW HERE MUST SHOW THAT WE HAVE JURISDICTION OF THE CASE.  (FN2)
WERE WE TO ASSUME THAT THE FEDERAL QUESTION WAS THE BASIS FOR THE
DECISION BELOW, IT IS CLEAR THAT THE CALIFORNIA SUPREME COURT, EITHER
ON REMAND OR IN ANOTHER CASE PRESENTING THE SAME ISSUES, COULD INFORM
US THAT ITS OPINION WAS IN FACT BASED, AT LEAST IN PART, ON THE
CALIFORNIA  ONSTITUTION, THUS LEAVING THE RESULT UNTOUCHED BY WHATEVER
CONCLUSIONS THIS COURT MIGHT HAVE REACHED ON THE MERITS OF THE FEDERAL
QUESTION.  FOR REASONS THAT FOLLOW WE CONCLUDE THAT FURTHER CLARIFYING
PROCEEDINGS IN THE CALIFORNIA SUPREME COURT ARE CALLED FOR UNDER THE
PRINCIPLES STATED IN MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551. 

THE FIRST MENTION OF ANY SPECIFIC CONSTITUTIONAL PROVISION IN THIS
CASE APPEARS TO HAVE BEEN MADE IN RESPONDENT'S REPLY BRIEF IN THE STATE
DISTRICT COURT OF APPEAL, AND IT RELATED SOLELY TO THE CONSTITUTION. 
THAT COURT DISPOSED OF CONSTITUTIONAL CLAIM IN ONE PARAGRAPH, (FN4)
CITING DEPARTMENT OF MENTAL HYGIENE V. MCGILVERY, 50 CAL. 2D 742, 754
761, 329 P.2D 689, 695-699.  IN MCGILVERY REHEARING WAS GRANTED BY THE
CALIFORNIA SUPREME COURT TO CONSIDER THE CLAIM THAT "AN ABSOLUTE
LIABILITY ON A MOTHER TO PAY FOR THE CARE, SUPPORT AND MAINTENANCE OF
HER MENTALLY ILL DAUGHTER IN A STATE INSTITUTION, IS A DEPRIVATION OF
PROPERTY WITHOUT EQUAL PROTECTION OF LAW AND WITHOUT JUST COMPENSATION
IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS."  50 CAL. 2D, AT
747, 329 P.2D, AT 691.  ON THE PAGES CITED BY THE DISTRICT COURT OF
APPEAL, THE CALIFORNIA SUPREME COURT IN MCGILVERY HAD CONCLUDED: 

"ARTICLE I, SECTION 11 OF THE CALIFORNIA CONSTITUTION REQUIRES THAT
ALL LAWS OF A GENERAL NATURE HAVE A UNIFORM OPERATION.  THIS HAS BEEN
HELD GENERALLY TO REQUIRE A REASONABLE CLASSIFICATION OF PERSONS UPON
WHOM THE LAW IS TO OPERATE.  THE CLASSIFICATION MUST BE ONE THAT IS
FOUNDED UPON SOME NATURAL OR INTRINSIC OR CONSTITUTIONAL DISTINCTION. 
(CITATIONS.)  LIKEWISE, THOSE WITHIN THE CLASS, THAT IS THOSE PERSONS
SIMILARLY SITUATED WITH RESPECT TO THAT LAW, MUST BE SUBJECTED TO EQUAL
BURDENS.  (CITATION.)  THE CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION WHICH PROHIBITS A STATE FROM DENYING TO 'ANY
PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS' HAS
BEEN SIMILARLY CONSTRUED."  (FN5) 

AN EXAMINATION OF THE OPINION OF THE CALIFORNIA SUPREME COURT IN THE
CASE BEFORE US DOES NOT INDICATE WHETHER THAT COURT RELIED ON THE STATE
CONSTITUTION ALONE, THE FEDERAL CONSTITUTION ALONE, OR BOTH; AND WE
WOULD HAVE JURISDICTION TO REVIEW ONLY IF THE FEDERAL GROUND HAD BEEN
THE SOLE BASIS FOR THE DECISION, OR THE STATE CONSTITUTION WAS
INTERPRETED UNDER WHAT THE STATE COURT DEEMED THE COMPULSION OF THE
FEDERAL CONSTITUTION.  (FN6) 

THE COURT FIRST DISCUSSED DEPARTMENT OF MENTAL HYGIENE V. HAWLEY, 59
CAL. 2D 247, 379 P.2D 22, A CASE DECIDED UNDER THE FOURTEENTH
AMENDMENT, AND THEN STATED, "THIS HOLDING IS DISPOSITIVE OF THE ISSUE
BEFORE US."  60 CAL. 2D, AT 720, 388 P.2D, AT 722. 

THE COURT WENT ON, HOWEVER, TO DISCUSS OTHER CASES.  AFTER NOTING
THAT IN DEPARTMENT OF MENTAL HYGIENE V. SHANE, 142 CAL. APP. 2D 881,
299 P.2D 747 (RELIED ON IN MCGILVERY), THERE WAS NO "MENTION OF EITHER
THE UNITED STATES OR THE CALIFORNIA CONSTITUTIONS," THE COURT
DISTINGUISHED BOTH SNANE AND MCGILVERY AS CASES IN WHICH THE
CONSTITUTIONAL CLAIMS WERE NOT PRESENTED.  60 CAL. 2D, AT 721, 388
P.2D, AT 723.  IT THEN DISCUSSED HOEPER V. TAX COMM'N, 284 U.S. 206,
WHICH DEALT WITH REASONABLE CLASSIFICATION, AND COMPARED A SIMILAR
TREATMENT IN ESTATE OF TETSUBUMI YANO, 188 CAL. 645, 656-657 (14), 206
P. 995.  IN YANO THE CALIFORNIA SUPREME COURT FOUND AN ALIEN LAND LAW
IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, THE PRIVILEGES AND IMMUNITIES CLAUSE, AND OF THE CALIFORNIA
CONSTITUTION.  THE COURT'S DISCUSSION OF THE EQUAL PROTECTION CLAUSE,
HOWEVER, WAS CONFINED TO PP. 654-656 OF THE OPINION, AND IN HEADNOTE
(14) ON PAGE 656 (CITED BY THE COURT IN THE PRESENT CASE) THE COURT
DEALT PRINCIPALLY WITH THE STATE CONSTITUTIONAL GROUND. 

AFTER EXAMINING THE STATUTORY FRAMEWORK OF THE SUPPORT STATUTES, THE
COURT IN THIS CASE FINALLY CONCLUDED WITH THE FOLLOWING STATEMENT: 

"A STATUTE OBVIOUSLY VIOLATES THE EQUAL PROTECTION CLAUSE IF IT
SELECTS ONE PARTICULAR CLASS OF PERSONS FOR A SPECIES OF TAXATION AND
NO RATIONAL BASIS SUPPORTS SUCH CLASSIFICATION.  (SEE BLUMENTHAL V.
BOARD OF MEDICAL EXAMINERS (1962) 57 CAL. 2D 228, 237(13) (18 CAL.
RPTR.  501, 368 P.2D 101); BILYEU V. STATE EMPLOYEES' RETIREMENT SYSTEM
(1962) 58 CAL. 2D 618, 623(2) (25 CAL. RPTR.  562, 375 P.2D 442).) 
SUCH A CONCEPT FOR THE STATE'S TAKING OF A FREE MAN'S PROPERTY
MANIFESTLY DENIES HIM EQUAL PROTECTION OF THE LAW."  60 CAL. 2D, AT 722
723, 388 P.2D, AT 724. 

BLUMENTHAL V. BOARD OF MEDICAL EXAMINERS, 57 CAL. 2D 228, 368 P.2D
101, INVOLVED AN ATTACK ON A LICENSING STATUTE UNDER BOTH THE
FOURTEENTH AMENDMENT AND SECS. 11 AND 21 OF ARTICLE I OF THE CALIFORNIA
CONSTITUTION.  SEE 57 CAL. 2D, AT 232, 368 P.2D, AT 103.  THE COURT DID
NOT SPECIFICALLY RELY ON ONE CONSTITUTIONAL PROVISION, BUT MERELY HELD
THE STATUTE UNCONSTITUTIONAL.  BILYEU V. STATE EMPLOYEES' RETIREMENT
SYSTEM, 58 CAL. 2D 618, 375 P.2D 442, INVOLVED AN ATTACK ON A
CLASSIFICATION OF STATE EMPLOYEES SUBJECT TO RETIREMENT BENEFITS.  AT
HEADNOTE (2) OF THE OPINION, CITED BY THE COURT IN KIRCHNER, APPEARS
THE FOLLOWING LANGUAGE: 

"THERE IS NO CONSTITUTIONAL REQUIREMENT OF UNIFORM TREATMENT, BUT
ONLY THAT THERE BE A REASONABLE BASIS FOR EACH CLASSIFICATION."  (FN7) 

THE USE OF SUCH LANGUAGE SUGGESTS THAT THE COURT MAY HAVE BEEN
ADVERTING TO THE CALIFORNIA CONSTITUTIONAL PROVISION THAT "ALL LAWS OF
A GENERAL NATURE SHALL HAVE A UNIFORM OPERATION."  CALIF.  CONST., ART.
I, SEC. 11. 

ON THE BASIS OF THE FOREGOING, IT IS CLEAR THAT WE CANNOT SAY WITH
THE REQUISITE CERTAINTY THAT THE CALIFORNIA JUDGMENT RESTED SOLELY ON
THE FOURTEENTH AMENDMENT, OR, AMOUNTING TO THE SAME THING, THAT IN
STRIKING THE STATUTE DOWN UNDER THE STATE CONSTITUTION THE COURT BELOW
ACTED UNDER WHAT IT CONCEIVED TO BE THE COMPULSION OF THE FEDERAL
CONSTITUTION (CF. JANKOVICH V. INDIANA TOLL ROAD COMM'N, 379 U.S. 487,
492); ONE OR THE OTHER DETERMINATION WOULD BE NECESSARY TO OUR
EXERCISING JURISDICTION.  WHILE THE AMBIGUITY OF THE OPINION MIGHT
NORMALLY LEAD US TO DISMISS THE WRIT OF CERTIORARI AS IMPROVIDENTLY
GRANTED, WE THINK THE PREFERABLE COURSE IS TO LEAVE THE WAY OPEN FOR
OBTAINING CLARIFICATION FROM THE CALIFORNIA SUPREME COURT (MINNESOTA V.
NATIONAL TEA CO., SUPRA), IN VIEW OF THE IMPORTANCE OF AND WIDESPREAD
INTEREST IN THE CASE.  (FN8)  UNFORTUNATELY, BECAUSE OF CALIFORNIA LAW,
WE CANNOT HOLD THE CASE ON OUR CALENDAR UNTIL THE PARTIES SUBMIT A
CLARIFYING CERTIFICATE FROM THE CALIFORNIA SUPREME COURT, SEE DIXON V.
DUFFY, 344 U.S. 143, 145, BUT WE CAN OBVIATE UNDUE DELAY BY VACATING
THE JUDGMENT OF THE CALIFORNIA SUPREME COURT, DIRECTING THAT OUR
MANDATE ISSUE FORTHWITH, AND GIVING LEAVE TO THE PARTIES TO FILE A NEW
PETITION FOR CERTIORARI INCORPORATING BY REFERENCE THE RECORD AND
BRIEFS NOW ON FILE IN THIS COURT, SUPPLEMENTED BY SUCH ADDITIONAL
PAPERS AS MAY BE NECESSARY OR APPROPRIATE, IF ON FURTHER PROCEEDINGS
THE CALIFORNIA SUPREME COURT HOLDS THAT ITS JUDGMENT DOES NOT REST ON
AN ADEQUATE INDEPENDENT NONFEDERAL GROUND. 

THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA IS VACATED AND THE
CAUSE REMANDED TO THAT COURT FOR SUCH FURTHER PROCEEDINGS AS MAY BE
APPROPRIATE UNDER STATE LAW.  THE JUDGMENT AND MANDATE OF THIS COURT
SHALL ISSUE FORTHWITH.  VACATED AND REMANDED. 

FN1  CALIFORNIA CONSTITUTION, ART. I, SECS. 11, 21, PROVIDES IN
PERTINENT PART: 

"SEC. 11.  ALL LAWS OF A GENERAL NATURE SHALL HAVE A UNIFORM
OPERATION. 

     *         *   *         *         * 

"SEC. 21.  NO SPECIAL PRIVILEGES OR IMMUNITIES SHALL EVER BE GRANTED
WHICH MAY NOT BE ALTERED, REVOKED, OR REPEALED BY THE LEGISLATURE; NOR
SHALL ANY CITIZEN, OR CLASS OF CITIZEN, BE GRANTED PRIVILEGES OR
IMMUNITIES WHICH, UPON THE SAME TERMS, SHALL NOT BE GRANTED TO ALL
CITIZENS." 

THESE PROVISIONS HAVE BEEN INTERPRETED BY THE CALIFORNIA COURTS AS
BEING THE EQUIVALENT OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  SEE DEPARTMENT OF MENTAL HYGIENE V. MCGILVERY, 50 CAL. 2D
742, 754, 329 P.2D 689, 695, QUOTED INFRA, P. 198; LELANDE V. LOWERY,
26 CAL. 2D 224, 157 P.2D 639; SAN BERNARDINO V. WAY, 18 CAL. 2D 647,
117 P.2D 354; PEOPLE V. SULLIVAN, 60 CAL. APP. 2D 539, 141 P.2D 230;
PEOPLE V. ENGLAND, 140 CAL. APP. 310, 35 P.2D 565; 11 CAL. JUR.  2D
SEC. 272, AND CASES CITED THEREIN.  SEE ALSO LOS ANGELES V. SOUTHERN
CAL. TEL.  CO., 32 CAL. 2D 378, 196 P.2D 773, APPEAL DISMISSED, 336
U.S. 929. 

FN2  SEE NOTE, SUPREME COURT TREATMENT OF STATE COURT CASES
EXHIBITING AMBIGUOUS GROUNDS OF DECISION, 62 COL. L. REV. 822 (1962). 

FN3  APPELLANT'S REPLY BRIEF, P. 2, PRESENTED THE RHETORICAL
QUESTION:  "IS NOT THE TAKING OF MONEY FROM A DAUGHTER, OR HER ESTATE,
FOR THE SUPPORT OF A MOTHER WHO HAS AN ESTATE OF HER OWN VIOLATIVE OF
THE CONSTITUTION OF THE STATE OF CALIFORNIA?" 

FN4  29 CAL. RPTR.  312, 317. 

FN5  50 CAL. 2D 742, 754, 329 P.2D 689, 695. 

FN6  STATE TAX COMM'N V. VAN COTT, 306 U.S. 511; FOX FILM CORP. V.
MULLER, 296 U.S. 207. 

FN7  58 CAL. 2D, AT 623, 375 P.2D, AT 445. 

FORTY-TWO STATES, PUERTO RICO, AND THE DISTRICT OF COLUMBIA HAVE
SIMILAR STATUTES ON THEIR BOOKS, AND EIGHT STATES HAVE FILED AMICUS
BRIEFS IN THIS COURT, EITHER SUPPORTING THE PETITION FOR CERTIORARI OR
THE PETITIONER'S POSITION ON THE MERITS. 

MR. JUSTICE DOUGLAS, BELIEVING IT CLEAR THAT THE SUPREME COURT OF
CALIFORNIA DID NOT REST SOLELY ON THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES, WOULD DISMISS THE WRIT. 
..END :








SWAIN V. ALABAMA 380 U.S. 202 


NO. 64.  ARGUED DECEMBER 8, 1964.  - DECIDED MARCH 8, 1965.  - 275 ALA.
508, 156 SO. 2D 368, AFFIRMED. 


PETITIONER, A NEGRO, WAS INDICTED AND CONVICTED OF RAPE IN THE CIRCUIT
COURT OF TALLADEGA COUNTY, ALABAMA, AND SENTENCED TO DEATH.  OF THOSE
IN THE COUNTY ELIGIBLE FOR JURY SELECTION FOR GRAND AND PETIT JURIES
26% ARE NEGROES, WHILE THE JURY PANELS SINCE 1953 HAVE AVERAGED 10% TO
15% NEGROES.  IN THIS CASE THERE WERE FOUR OR FIVE NEGROES ON THE GRAND
JURY PANEL AND TWO SERVED ON THE GRAND JURY.  ALTHOUGH PETIT JURY
VENIRES IN CRIMINAL CASES INCLUDE AN AVERAGE OF SIX TO SEVEN NEGROES,
NO NEGRO HAS SERVED ON A PETIT JURY IN THE COUNTY SINCE ABOUT 1950. 
HERE OF THE EIGHT NEGROES ON THE VENIRE, TWO WERE EXEMPT AND SIX WERE
PEREMPTORILY STRUCK BY THE PROSECUTOR.  PETITIONER'S MOTIONS TO SQUASH
THE INDICTMENT, TO STRIKE THE TRIAL JURY VENIRE, AND TO VOID THE TRIAL
JURY, ALL BASED ON DISCRIMINATION IN THE SELECTION OF JURORS, WERE
DENIED AND HIS CONVICTION WAS AFFIRMED BY THE ALABAMA SUPREME COURT. 
HELD: 

1.  A DEFENDANT IN A CRIMINAL CASE IS NOT CONSTITUTIONALLY ENTITLED
TO A PROPORTIONATE NUMBER OF HIS RACE ON THE TRIAL JURY OR THE JURY
PANEL.  P. 208. 

2.  PURPOSEFUL RACIAL DISCRIMINATION IS NOT SATISFACTORILY
ESTABLISHED BY SHOWING ONLY THAT AN IDENTIFIABLE GROUP HAS BEEN
UNDERREPRESENTED BY AS MUCH AS 10%.  P. 208. 

3.  THERE IS NO EVIDENCE IN THIS CASE THAT THE JURY COMMISSIONERS
APPLIED DIFFERENT JURY SELECTION STANDARDS AS BETWEEN NEGROES AND
WHITES.  P. 209. 

4.  AN IMPERFECT SYSTEM OF SELECTION OF JURY PANELS IS NOT EQUIVALENT
TO PURPOSEFUL RACIAL DISCRIMINATION.  P. 209. 

5.  THE PROSECUTOR'S STRIKING OF NEGROES FROM THE JURY PANEL IN ONE
PARTICULAR CASE UNDER THE PEREMPTORY CHALLENGE SYSTEM, WHICH PERMITS A
CHALLENGE WITHOUT A REASON STATED, DOES NOT CONSTITUTE DENIAL OF EQUAL
PROTECTION OF THE LAWS.  P. 221. 

6.  EVEN IF A STATE'S SYSTEMATIC STRIKING OF NEGROES IN SELCTING
TRIAL JURIES RAISES A PRIMA FACIE CASE OF DISCRIMINATIOON UNDER THE
FOURTEENTH AMENDMENT THE RECORD HERE IS INSUFFICIENT TO ESTABLISH SUCH
SYSTEMATIC STRIKING IN THE COUNTY.  PP. 222-228. 

(A)  PETITIONER HAS THE BURDEN OF PROOF AND HE HAS FAILED TO MEET IT.
P. 226. 

(B)  TOTAL EXCLUSION OF NEGROES FROM VENIRES BY STATE OFFICIALS
CREATES AN INFERENCE OF DISCRIMINATION, BUT THIS RULE OF PROOF CANNOT
BE APPLIED WHERE IT IS NOT SHOWN THAT THE STATE IS RESPONSIBLE FOR THE
EXCLUSION OF NEGROES THROUGH PEREMPTORY CHALLENGES.  PP. 226-227. 

SWAIN V. ALABAMA. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, ROBERT SWAIN, A NEGRO, WAS INDICTED AND CONVICTED OF
RAPE IN THE CIRCUIT COURT OF TALLADEGA COUNTY, ALABAMA, AND SENTENCED
TO DEATH.  HIS MOTIONS TO QUASH THE INDICTMENT, TO STRIKE THE TRIAL
JURY VENIRE AND TO DECLARE VOID THE PETIT JURY CHOSEN IN THE CASE, ALL
BASED ON ALLEGED INVIDIOUS DISCRIMINATION IN THE SELECTION OF JURORS,
WERE DENIED.  THE ALABAMA SUPREME COURT AFFIRMED THE CONVICTION, 275
ALA. 508, 156 SO. 2D 368, AND WE GRANTED CERTIORARI, 377 U.S. 915. 

IN SUPPORT OF HIS CLAIMS, PETITIONER INVOKES THE CONSTITUTIONAL
PRINCIPLE ANNOUNCED IN 1880 IN STRAUDER V. WEST VIRGINIA, 100 U.S. 303,
WHERE THE COURT STRUCK DOWN A STATE STATUTE QUALIFYING ONLY WHITE
PEOPLE FOR JURY DUTY.  SUCH A STATUTE WAS HELD TO CONTRAVENE THE
CENTRAL PURPOSES OF THE FOURTEENTH AMENDMENT:  "EXEMPTION FROM
UNFRIENDLY LEGISLATION AGAINST NEGROES DISTINCTIVELY AS COLORED, -
EXEMPTION FROM LEGAL DISCRIMINATIONS, IMPLYING INFERIORITY IN CIVIL
SOCIETY, LESSENING THE SECURITY OF THEIR ENJOYMENT OF THE RIGHTS WHICH
OTHERS ENJOY  ...  ."  100 U.S., AT 308.  ALTHOUGH A NEGRO DEFENDANT IS
NOT ENTITLED TO A JURY CONTAINING MEMBERS OF HIS RACE, A STATE'S
PURPOSEFUL OR DELIBERATE DENIAL TO NEGROES ON ACCOUNT OF RACE OF
PARTICIPATION AS JURORS IN THE ADMINISTRATION OF JUSTICE VIOLATES THE
EQUAL PROTECTION CLAUSE.  EX PARTE VIRGINIA, 100 U.S. 339; GIBSON V.
MISSISSIPPI, 162 U.S. 565.  THIS PRINCIPLE WAS FURTHER ELABORATED IN
CARTER V. TEXAS, 177 U.S. 442, 447, WHERE, IN RESPECT TO EXCLUSION FROM
GRAND JURIES, THE COURT SAID: 

"WHENEVER BY ANY ACTION OF A STATE, WHETHER THROUGH ITS LEGISLATURE,
THROUGH ITS COURTS, OR THROUGH ITS EXECUTIVE OR ADMINISTRATIVE
OFFICERS, ALL PERSONS OF THE AFRICAN RACE ARE EXCLUDED, SOLELY BECAUSE
OF THEIR RACE OR COLOR, FROM SERVING AS GRAND JURORS IN THE CRIMINAL
PROSECUTION OF A PERSON OF THE AFRICAN RACE, THE EQUAL PROTECTION OF
THE LAWS IS DENIED  ...  ." 

AND IT HAS BEEN CONSISTENTLY AND REPEATEDLY APPLIED IN MANY CASES
COMING BEFORE THIS COURT.  (FN1)  THE PRINCIPLE OF THESE CASES IS
BROADLY BASED. 

"FOR RACIAL DISCRIMINATION TO RESULT IN THE EXCLUSION FROM JURY
SERVICE OF OTHERWISE QUALIFIED GROUPS NOT ONLY VIOLATES OUR
CONSTITUTION AND THE LAWS ENACTED UNDER IT BUT IS AT WAR WITH OUR BASIC
CONCEPTS OF A DEMOCRATIC SOCIETY AND A REPRESENTATIVE GOVERNMENT." 
SMITH V. TEXAS, 311 U.S. 128, 130. 

FURTHER, "JURYMEN SHOULD BE SELECTED AS INDIVIDUALS, ON THE BASIS OF
INDIVIDUAL QUALIFICATIONS, AND NOT AS MEMBERS OF A RACE."  CASSELL V.
TEXAS, 339 U.S. 282, 286 (OPINION OF MR. JUSTICE REED, ANNOUNCING
JUDGMENT).  NOR IS THE CONSTITUTIONAL COMMAND FORBIDDING INTENTIONAL
EXCLUSION LIMITED TO NEGROES.  IT APPLIES TO ANY IDENTIFIABLE GROUP IN
THE COMMUNITY WHICH MAY BE THE SUBJECT OF PREJUDICE.  HERNANDEZ V.
TEXAS, 347 U.S. 475. 

BUT PURPOSEFUL DISCRIMINATION MAY NOT BE ASSUMED OR MERELY ASSERTED. 
BROWNFIELD V. SOUTH CAROLINA, 189 U.S. 426; TARRANCE V. FLORIDA, 188
U.S. 519; SMITH V. MISSISSIPPI, 162 U.S. 592; BUSH V. KENTUCKY, 107
U.S. 110.  IT MUST BE PROVEN, TARRANCE V. FLORIDA, SUPRA; MARTIN V.
TEXAS, 200 U.S. 316, THE QUANTUM OF PROOF NECESSARY BEING A MATTER OF
FEDERAL LAW.  NORRIS V. ALABAMA, 294 U.S. 587; SMITH V. TEXAS, 311 U.S.
128.  IT IS NOT THE SOUNDNESS OF THESE PRINCIPLES, WHICH IS
UNQUESTIONED, BUT THEIR SCOPE AND APPLICATION TO THE ISSUES IN THIS
CASE THAT CONCERN US HERE. 

                    I. 

WE CONSIDER FIRST PETITIONER'S CLAIMS CONCERNING THE SELECTION OF
GRAND JURORS AND THE PETIT JURY VENIRE.  THE EVIDENCE WAS THAT WHILE
NEGRO MALES OVER 21 CONSTITUTE 26% OF ALL MALES IN THE COUNTY IN THIS
AGE GROUP, ONLY 10 TO 15% OF THE GRAND AND PETIT JURY PANELS DRAWN FROM
THE JURY BOX SINCE 1953 HAVE BEEN NEGROES, THERE HAVING BEEN ONLY ONE
CASE IN WHICH THE PERCENTAGE WAS A HIGH AS 23%. IN THIS PERIOD OF TIME,
NEGROES SERVED ON 80% OF THE GRAND JURIES SELECTED, THE NUMBER RANGING
FROM ONE TO THREE.  THERE WERE FOUR OR FIVE NEGROES ON THE GRAND JURY
PANEL OF ABOUT 33 IN THIS CASE, OUT OF WHICH TWO SERVED ON THE GRAND
JURY WHICH INDICTED PETITIONER.  ALTHOUGH THERE HAS BEEN AN AVERAGE OF
SIX TO SEVEN NEGROES ON PETIT JURY VENIRES IN CRIMINAL CASES, NO NEGRO
HAS ACTUALLY SERVED ON A PETIT JURY SINCE ABOUT 1950.  IN THIS CASE
THERE WERE EIGHT NEGROES ON THE PETIT JURY VENIRE BUT NONE ACTUALLY
SERVED, TWO BEING EXEMPT AND SIX BEING STRUCK BY THE PROSECUTOR IN THE
PROCESS OF SELECTING THE JURY. 

IT IS WHOLLY OBVIOUS THAT ALABAMA HAS NOT TOTALLY EXCLUDED A RACIAL
GROUP FROM EITHER GRAND OR PETIT JURY PANELS, AS WAS THE CASE IN NORRIS
V. ALABAMA, 294 U.S. 587; HILL V. TEXAS, 316 U.S. 400; PATTON V.
MISSISSIPPI, 332 U.S. 463; HERNANDEZ V. TEXAS, 347 U.S. 475; AND REECE
V. GEORGIA, 350 U.S. 85.  MOREOVER, WE DO NOT CONSIDER AN AVERAGE OF
SIX TO EIGHT NEGROES ON THESE PANELS AS CONSTITUTING FORBIDDEN TOKEN
INCLUSION WITHIN THE MEANING OF THE CASES IN THIS COURT.  THOMAS V.
TEXAS, 212 U.S. 278; AKINS V. TEXAS, 325 U.S. 398; AVERY V. GEORGIA,
345 U.S. 559.  NOR DO WE CONSIDER THE EVIDENCE IN THIS CASE TO MAKE OUT
A PRIMA FACIE CASE OF INVIDIOUS DISCRIMINATION UNDER THE FOURTEENTH
AMENDMENT. 

ALABAMA LAW REQUIRES THAT THE THREE JURY COMMISSIONERS IN TALLADEGA
COUNTY PLACE ON THE JURY ROLL ALL MALE CITIZENS IN THE COMMUNITY OVER
21 WHO ARE REPUTED TO BE HONEST, INTELLIGENT MEN AND ARE ESTEEMED FOR
THEIR INTEGRITY, GOOD CHARACTER AND SOUND JUDGMENT.  ALA. CODE, TIT.
30, SECS. 20, 21 (1958).  (FN2)  IN PRACTICE, HOWEVER, THE
COMMISSIONERS DO NOT PLACE ON THE ROLL ALL SUCH CITIZENS, EITHER WHITE
OR COLORED.  (FN3)  A TYPICAL JURY ROLL AS BEST CONTAINS ABOUT 2,500
NAMES, OUT OF A TOTAL MALE POPULATION OVER 21, ACCORDING TO THE LATEST
CENSUS, OF 16,406 PERSONS.  EACH COMMISSIONER, WITH THE CLERK'S
ASSISTANCE, PRODUCES FOR THE JURY LIST NAMES OF PERSONS WHO IN HIS
JUDGMENT ARE QUALIFIED.  THE SOURCES ARE CITY DIRECTORIES, REGISTRATION
LISTS, CLUB AND CHURCH LISTS, CONVERSATIONS WITH OTHER PERSONS IN THE
COMMUNITY, BOTH WHITE AND COLORED, AND PERSONAL AND BUSINESS
ACQUAINTANCES.  (FN4) 

VENIRES DRAWN FROM THE JURY BOX MADE UP IN THIS MANNER UNQUESTIONABLY
CONTAINED A SMALLER PROPORTION OF THE NEGRO COMMUNITY THAN OF THE WHITE
COMMUNITY.  BUT A DEFENDANT IN A CRIMINAL CASE IS NOT CONSTITUTIONALLY
ENTITLED TO DEMAND A PROPORTIONATE NUMBER OF HIS RACE ON THE JURY WHICH
TRIES HIM NOR ON THE VENIRE OR JURY ROLL FROM WHICH PETIT JURORS ARE
DRAWN.  VIRGINIA V. RIVES, 100 U.S. 313, 322-323; GIBSON V.
MISSISSIPPI, 162 U.S. 565; THOMAS V. TEXAS, 212 U.S. 278, 282; CASSELL
V. TEXAS, 339 U.S. 282.  NEITHER THE JURY ROLL NOR THE VENIRE NEED BE A
PERFECT MIRROR OF THE COMMUNITY OR ACCURATELY REFLECT THE PROPORTIONATE
STRENGTH OF EVERY IDENTIFIABLE GROUP.  "OBVIOUSLY THE NUMBER OF RACES
AND NATIONALITIES APPEARING IN THE ANCESTRY OF OUR CITIZENS WOULD MAKE
IT IMPOSSIBLE TO MEET A REQUIREMENT OF PROPORTIONAL REPRESENTATION. 
SIMILARLY, SINCE THERE CAN BE NO EXCLUSION OF NEGROES AS A RACE AND NO
DISCRIMINATION BECAUSE OF COLOR, PROPORTIONAL LIMITATION IS NOT
PERMISSIBLE."  CASSELL V. TEXAS, 339 U.S. 282, 286-287 (OPINION OF MR.
JUSTICE REED, ANNOUNCING JUDGMENT).  WE CANNOT SAY THAT PURPOSEFUL
DISCRIMINATION BASED ON RACE ALONE IS SATISFACTORILY PROVED BY SHOWING
THAT AN IDENTIFIABLE GROUP IN A COMMUNITY IS UNDERREPRESENTED BY AS
MUCH AS 10%. SEE THOMAS V. TEXAS, 212 U.S. 278, 283; AKINS V. TEXAS,
325 U.S. 398; CASSELL V. TEXAS, 339 U.S. 282.  HERE THE COMMISSIONERS
DENIED THAT RACIAL CONSIDERATIONS ENTERED INTO THEIR SELECTIONS OF
EITHER THEIR CONTACTS IN THE COMMUNITY OR THE NAMES OF PROSPECTIVE
JURORS.  THERE IS NO EVIDENCE THAT THE COMMISSIONERS APPLIED DIFFERENT
STANDARDS OF QUALIFICATIONS TO THE NEGRO COMMUNITY THAN THEY DID TO THE
WHITE COMMUNITY.  NOR WAS THERE ANY MEANINGFUL ATTEMPT TO DEMONSTRATE
THAT THE SAME PROPORTION OF NEGROES QUALIFIED UNDER THE STANDARDS BEING
ADMINISTERED BY THE COMMISSIONERS.  IT IS NOT CLEAR FROM THE RECORD
THAT THE COMMISSIONERS EVEN KNEW HOW MANY NEGROES WERE IN THEIR
RESPECTIVE AREAS, OR ON THE JURY ROLL OR ON THE VENIRES DRAWN FROM THE
JURY BOX.  THE OVERALL PERCENTAGE DISPARITY HAS BEEN SMALL, AND
REFLECTS NO STUDIED ATTEMPT TO INCLUDE OR EXCLUDE A SPECIFIED NUMBER OF
NEGROES.  UNDOUBTEDLY THE SELECTION OF PROSPECTIVE JURORS WAS SOMEWHAT
HAPHAZARD AND LITTLE EFFORT WAS MADE TO ENSURE THAT ALL GROUPS IN THE
COMMUNITY WERE FULLY REPRESENTED.  BUT AN IMPERFECT SYSTEM IS NOT
EQUIVALENT TO PURPOSEFUL DISCRIMINATION BASED ON RACE.  (FN5)  WE DO
NOT THINK THAT THE BURDEN OF PROOF WAS CARRIED BY PETITIONER IN THIS
CASE. 

                                 II. 

PETITIONER MAKES A FURTHER CLAIM RELATING TO THE EXERCISE OF
PEREMPTORY CHALLENGES TO EXCLUDE NEGROES FROM SERVING ON PETIT JURIES. 

IN TALLADEGA COUNTY THE PETIT JURY VENIRE DRAWN IN A CRIMINAL CASE
NUMBERS ABOUT 35 UNLESS A CAPITAL OFFENSE IS INVOLVED, IN WHICH CASE IT
NUMBERS ABOUT 100.  ALA. CODE, TIT. 30, SECS. 60, 62, 63 (1958).  AFTER
EXCUSES AND REMOVALS FOR CAUSE, THE VENIRE IN A CAPITAL CASE IS REDUCED
TO ABOUT 75.  THE JURY IS THEN "STRUCK" - THE DEFENSE STRIKING TWO
VENIREMEN AND THE PROSECUTION ONE IN ALTERNATING TURNS, UNTIL ONLY 12
JURORS REMAIN.  ALA. CODE, TIT. 30, SEC. 64 (1958).  THIS ESSENTIALLY
IS THE ALABAMA STRUCK-JURY SYSTEM, APPLICABLE IN ALL CRIMINAL CASES AND
AVAILABLE IN CIVIL CASES.  ALA. CODE, TIT. 30, SECS. 54, 60 (1958).  IN
THIS CASE, THE SIX NEGROES AVAILABLE FOR JURY SERVICE WERE STRUCK BY
THE PROSECUTOR IN THE PROCESS OF SELECTING THE JURY WHICH WAS TO TRY
PETITIONER. 

IN THE TRIAL COURT AFTER THE JURY WAS SELECTED, PETITIONER MOVED TO
HAVE THE JURY DECLARED VOID ON FOURTEENTH AMENDMENT GROUNDS.  AMONG
OTHER THINGS THE MOTION ALLEGED: 

"(4)  THAT BECAUSE OF THE SYSTEMATIC AND ARBITRARY METHOD OF
SELECTING THE NAMES OF QUALIFIED MALE CITIZENS, NEGRO MALE CITIZENS, BY
THE JURY COMMISSION OF TALLADEGA COUNTY, ALABAMA, THE STATE CAN, AND
DID IN THIS CASE, READILY STRIKE MEMBERS OF THE NEGRO RACE AND THAT
THERE WERE ONLY SIX NEGROES REMAINING ON THE FINAL VENIRE IN THIS
CAUSE, IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF
THE UNITED STATES AND ALSO THE CONSTITUTION OF THE STATE OF ALABAMA
...  ." 

THE MAIN THRUST OF THE MOTION ACCORDING TO ITS TERMS WAS THE STRIKING
OF THE SIX NEGROES FROM THE PETIT JURY VENIRE.  (FN6)  NO EVIDENCE WAS
TAKEN, PETITIONER APPARENTLY BEING CONTENT TO RELY ON THE RECORD WHICH
HAD BEEN MADE IN CONNECTION WITH THE MOTION TO QUASH THE INDICTMENT. 
WE THINK THE MOTION, SEEKING AS IT DID TO INVALIDATE THE ALLEGED
PURPOSEFUL STRIKING OF NEGROES FROM THE JURY WHICH WAS TO TRY
PETITIONER, WAS PROPERLY DENIED. 

IN PROVIDING FOR JURY TRIAL IN CRIMINAL CASES, ALABAMA ADHERES TO THE
COMMON-LAW SYSTEM OF TRIAL BY AN IMPARTIAL JURY OF 12 MEN WHO MUST
UNANIMOUSLY AGREE ON THE VERDICT, (FN7) THE SYSTEM FOLLOWED IN THE
FEDERAL COURTS BY VIRTUE OF THE SIXTH AMENDMENT.  AS PART OF THIS
SYSTEM IT PROVIDES FOR CHALLENGES FOR CAUSE AND SUBSTITUTES A SYSTEM OF
STRIKES FOR THE COMMON-LAW METHOD OF PEREMPTORY CHALLENGE.  (FN8)
ALABAMA CONTENDS THAT ITS SYSTEM OF PEREMPTORY STRIKES - CHALLENGES
WITHOUT CAUSE, WITHOUT EXPLANATION AND WITHOUT JUDICIAL SCRUTINY -
AFFORDS A SUITABLE AND NECESSARY METHOD OF SECURING JURIES WHICH IN
FACT AND IN THE OPINION OF THE PARTIES ARE FAIR AND IMPARTIAL.  THIS
SYSTEM, IT IS SAID, IN AND OF ITSELF, PROVIDES JUSTIFICATION FOR
STRIKING ANY GROUP OF OTHERWISE QUALIFIED JURORS IN ANY GIVEN CASE,
WHETHER THEY BE NEGROES, CATHOLICS, ACCOUNTANTS OR THOSE WITH BLUE
EYES.  BASED ON THE HISTORY OF THIS SYSTEM AND ITS ACTUAL USE AND
OPERATION IN THIS COUNTRY, WE THINK THERE IS MERIT IN THIS POSITION. 

THE PEREMPTORY CHALLENGE HAS VERY OLD CREDENTIALS.  IN ALL TRIALS FOR
FELONIES AT COMMON LAW, THE DEFENDANT WAS ALLOWED TO CHALLENGE
PEREMPTORILY 35 JURORS, (FN9) AND THE PROSECUTOR ORIGINALLY HAD A RIGHT
TO CHALLENGE ANY NUMBER OF JURORS WITHOUT CAUSE, A RIGHT WHICH WAS SAID
TO TEND TO "INFINITE DELAYES AND DANGER."  COKE ON LITTLETON 156 (14TH
ED. 1791).  (FN10)  THUS THE ORDINANCE FOR INQUESTS, 33 EDW.  1, STAT.
4 (1305), PROVIDED THAT IF "THEY THAT SUE FOR THE KING WILL CHALLENGE
ANY  ...  JURORS, THEY SHALL ASSIGN  ...  A CAUSE CERTAIN."  SO
PERSISTENT WAS THE VIEW THAT A PROPER JURY TRIAL REQUIRED PEREMPTORIES
ON BOTH SIDES, HOWEVER, THAT THE STATUTE WAS CONSTRUED TO ALLOW THE
PROSECUTION TO DIRECT ANY JUROR AFTER EXAMINATION TO "STAND ASIDE"
UNTIL THE ENTIRE PANEL WAS GONE OVER AND THE DEFENDANT HAD EXERCISED
HIS CHALLENGES; ONLY IF THERE WAS A DEFICIENCY OF JURORS IN THE BOX AT
THAT POINT DID THE CROWN HAVE TO SHOW CAUSE IN RESPECT TO JURORS
RECALLED TO MAKE UP THE REQUIRED NUMBER.  (FN11)  PEREMPTORIES ON BOTH
SIDES BECAME THE SETTLED LAW OF ENGLAND, CONTINUING IN THE ABOVE FORM
UNTIL AFTER THE SEPARATION OF THE COLONIES.  (FN12) 

THIS COMMON LAW PROVIDED THE STARTING POINT FOR PEREMPTORIES IN THIS
COUNTRY.  IN THE FEDERAL SYSTEM, CONGRESS EARLY TOOK A PART OF THE
SUBJECT IN HAND IN ESTABLISHING THAT THE DEFENDANT WAS ENTITLED TO 35
PEREMPTORIES IN TRIALS FOR TREASON AND 20 IN TRIALS FOR OTHER FELONIES
SPECIFIED IN THE 1790 ACT AS PUNISHABLE BY DEATH, 1 STAT. 119 (1790). 
IN REGARD TO TRIALS FOR OTHER OFFENSES WITHOUT THE 1790 STATUTE, BOTH
THE DEFENDANT AND THE GOVERNMENT WERE THOUGHT TO HAVE A RIGHT OF
PEREMPTORY CHALLENGE, ALTHOUGH THE SOURCE OF THIS RIGHT WAS NOT WHOLLY
CLEAR.  (FN13)  IN 1865, THE GOVERNMENT WAS GIVEN BY STATUTE FIVE
PEREMPTORY CHALLENGES IN CAPITAL AND TREASON CASES, THE DEFENDANT BEING
ENTITLED TO 20, AND TWO IN OTHER CASES WHERE THE RIGHT OF THE DEFENDANT
TO CHALLENGE THEN EXISTED, HE BEING ENTITLED TO 10.  13 STAT. 500
(1965).  (FN14)  SUBSEQUENT ENACTMENTS INCREASED THE NUMBER OF
CHALLENGES THE GOVERNMENT COULD EXERCISE, THE GOVERNMENT NOW HAVING AN
EQUAL NUMBER WITH THE DEFENDANT IN CAPITAL CASES, AND SIX IN CASES
WHERE THE CRIME IS PUNISHABLE BY MORE THAN ONE YEAR'S IMPRISONMENT, THE
DEFENDANT OR DEFENDANTS HAVING TEN.  (FN15) 

THE COURSE IN THE STATES APPARENTLY PARALLELED THAT IN THE FEDERAL
SYSTEM.  THE DEFENDANT'S RIGHT OF CHALLENGE WAS EARLY CONFERRED BY
STATUTE, THE NUMBER OFTEN CORRESPONDING TO THE ENGLISH PRACTICE, (FN16)
THE PROSECUTION WAS THOUGHT TO HAVE RETAINED THE CROWN'S COMMON-LAW
RIGHT TO STAND ASIDE, (FN17) AND BY 1870, MOST, IF NOT ALL, STATES HAD
ENACTED STATUTES CONFERRING ON THE PROSECUTION A SUBSTANTIAL NUMBER OF
PEREMPTORY CHALLENGES, THE NUMBER GENERALLY BEING AT LEAST HALF, BUT
OFTEN EQUAL TO, THE NUMBER HAD BY THE DEFENDANT.  (FN18)  ALTHOUGH
THERE HAS BEEN SOME CRITICISM IN THE TWENTIETH CENTURY LEVELED AT
PEREMPTORY CHALLENGES, ON THE BASIS OF THE DELAYS, EXPENSE AND
ELIMINATION OF QUALIFIED JURORS INCIDENT TO THEIR USE, (FN19) THE
SYSTEM HAS SURVIVED THESE ATTACKS.   IN EVERY STATE, EXCEPT WHERE
PEREMPTORY STRIKES ARE A SUBSTITUTE, PEREMPTORY CHALLENGES ARE GIVEN BY
STATUTE TO BOTH SIDES IN BOTH CRIMINAL AND CIVIL CASES, THE NUMBER IN
CRIMINAL CASES BEING CONSIDERABLY GREATER.  UNDER THESE STATUTES THE
PROSECUTION GENERALLY POSSESSES A SUBSTANTIAL NUMBER OF CHALLENGES. 
(FN20) 

THE SYSTEM OF STRUCK JURIES ALSO HAS ITS ROOTS IN ANCIENT COMMON-LAW
HERITAGE.  (FN21)  SINCE STRIKING A JURY ALLOWED BOTH SIDES A GREATER
NUMBER OF CHALLENGES AND AN OPPORTUNITY TO BECOME FAMILIAR WITH THE
ENTIRE VENIRE LIST, IT WAS DEEMED AN EFFECTIVE MEANS OF OBTAINING MORE
IMPARTIAL AND BETTER QUALIFIED JURORS.  ACCORDINGLY, IT WAS USED IN
CAUSES OF "GREAT NICETY" OR "WHERE THE SHERIFF RESPONSIBLE FOR THE JURY
LIST WAS SUSPECTED OF PARTIALITY."  3 BL. COMM. 357.  IT IS AVAILABLE
IN MANY STATES FOR BOTH CIVIL AND CRIMINAL CASES.  (FN22)  THE ALABAMA
SYSTEM ADHERES TO THE COMMON-LAW FORM, EXCEPT THAT THE VENIREMEN ARE
DRAWN FROM THE REGULAR JURY LIST, ARE SUMMONED TO COURT BEFORE STRIKING
BEGINS AND THE STRIKING CONTINUES UNTIL 12 RATHER THAN 24 REMAIN.  IT
WAS ADOPTED AS A FAIRER SYSTEM TO THE DEFENDANT AND PROSECUTOR AND A
MORE EFFICACIOUS, QUICKER WAY TO OBTAIN AN IMPARTIAL JURY SATISFACTORY
TO THE PARTIES.  (FN23) 

IN CONTRAST TO THE COURSE IN ENGLAND, WHERE BOTH PEREMPTORY CHALLENGE
AND CHALLENGE FOR CAUSE HAVE FALLEN INTO DISUSE, PEREMPTORIES WERE AND
ARE FREELY USED AND RELIED UPON IN THIS COUNTRY, PERHAPS BECAUSE JURIES
HERE ARE DRAWN FROM A GREATER CROSS-SECTION OF A HETEROGENEOUS
SOCIETY.  (FN24)  THE VOIR DIRE IN AMERICAN TRIALS TENDS TO BE
EXTENSIVE AND PROBING, OPERATING AS A PREDICATE FOR THE EXERCISE OF
PEREMPTORIES, AND THE PROCESS OF SLECTING A JURY PROTRACTED.  (FN25)
THE PERSISTENCE OF PEREMPTORIES AND THEIR EXTENSIVE USE DEMONSTRATE THE
LONG AND WIDELY HELD BELIEF THAT PEREMPTORY CHALLENGE IS A NECESSARY
PART OF TRIAL BY JURY.  SEE LEWIS V. UNITED STATES, 146 U.S. 370, 376. 
ALTHOUGH "THERE IS NOTHING IN THE CONSTITUTION OF THE UNITED STATES
WHICH REQUIRES THE CONGRESS (OR THE STATES) TO GRANT PEREMPTORY
CHALLENGES," STILSON V. UNITED STATES, 250 U.S. 583, 586, NONETHELESS
THE CHALLENGE IS "ONE OF THE MOST IMPORTANT OF THE RIGHTS SECURED TO
THE ACCUSED," POINTER V. UNITED STATES, 151 U.S. 396, 408.  THE DENIAL
OR IMPAIRMENT OF THE RIGHT IS REVERSIBLE ERROR WITHOUT A SHOWING OF
PREJUDICE, LEWIS V. UNITED STATES, SUPRA; HARRISON V. UNITED STATES,
163 U.S. 140; CF. GULF, COLORADO & SANTA FE R. CO. V. SHANE, 157 U.S.
348.  "FOR IT IS, AS BLACKSTONE SAYS, AN ARBITRARY AND CAPRICIOUS
RIGHT; AND IT MUST BE EXERCISED WITH FULL FREEDOM, OR IT FAILS OF ITS
FULL PURPOSE."  LEWIS V. UNITED STATES, SUPRA, AT 378. 

THE FUNCTION OF THE CHALLENGE IS NOT ONLY TO ELIMINATE EXTREMES OF
PARTIALITY ON BOTH SIDES, BUT TO ASSURE THE PARTIES THAT THE JURORS
BEFORE WHOM THEY TRY THE CASE WILL DECIDE ON THE BASIS OF THE EVIDENCE
PLACED BEFORE THEM, AND NOT OTHERWISE.  IN THIS WAY THE PEREMPTORY
SATISFIES THE RULE THAT "TO PERFORM ITS HIGH FUNCTION IN THE BEST WAY
'JUSTICE MUST SATISFY THE APPEARANCE OF JUSTICE.'"  IN RE MURCHISON,
349 U.S. 133, 136.  INDEED THE VERY AVAILABILITY OF PEREMPTORIES ALLOWS
COUNSEL TO ASCERTAIN THE POSSIBILITY OF BIAS THROUGH PROBING QUESTIONS
ON THE VOIR DIRE AND FACILITATES THE EXERCISE OF CHALLENGES FOR CAUSE
BY REMOVING THE FEAR OF INCURRING A JUROR'S HOSTILITY THROUGH
EXAMINATION AND CHALLENGE FOR CAUSE.  ALTHOUGH HISTORICALLY THE
INCIDENCE OF THE PROSECUTOR'S CHALLENGE HAS DIFFERED FROM THAT OF THE
ACCUSED, THE VIEW IN THIS COUNTRY HAS BEEN THAT THE SYSTEM SHOULD
GUARANTEE "NOT ONLY FREEDOM FROM ANY BIAS AGAINST THE ACCUSED, BUT ALSO
FROM ANY PREJUDICE AGAINST HIS PROSECUTION.  BETWEEN HIM AND THE STATE
THE SCALES ARE TO BE EVENLY HELD."  HAYES V. MISSOURI, 120 U.S. 68,
70. 

THE ESSENTIAL NATURE OF THE PEREMPTORY CHALLENGE IS THAT IT IS ONE
EXERCISED WITHOUT A REASON STATED, WITHOUT INQUIRY AND WITHOUT BEING
SUBJECT TO THE COURT'S CONTROL.  STATE V. THOMPSON, 68 ARIZ. 386, 206
P.2D 1037 (1949); LEWIS V. UNITED STATES, 146 U.S. 370, 378.  WHILE
CHALLENGES FOR CAUSE PERMIT REJECTION OF JURORS ON A NARROWLY
SPECIFIED, PROVABLE AND LEGALLY COGNIZABLE BASIS OF PARTIALITY, THE
PEREMPTORY PERMITS REJECTION FOR A REAL OR IMAGINED PARTIALITY THAT IS
LESS EASILY DESIGNATED OR DEMONSTRABLE.  HAYES V. MISSOURI, 120 U.S.
68, 70.  IT IS OFTEN EXERCISED UPON THE "SUDDEN IMPRESSIONS AND
UNACCOUNTABLE PREJUDICES WE ARE APT TO CONCEIVE UPON THE BARE LOOKS AND
GESTURES OF ANOTHER," LEWIS, SUPRA, AT 376, UPON A JUROR'S "HABITS AND
ASSOCIATIONS," HAYES V. MISSOURA, SUPRA, AT 70, OR UPON THE FEELING
THAT "THE BARE QUESTIONING A JUROR'S INDIFFERENCE MAY SOMETIMES PROVOKE
A RESENTMENT," LEWIS, SUPRA, AT 376.  IT IS NO LESS FREQUENTLY
EXERCISED ON GROUNDS NORMALLY THOUGHT IRRELEVANT TO LEGAL PROCEEDINGS
OR OFFICIAL ACTION, NAMELY, THE RACE, RELIGION, NATIONALITY, OCCUPATION
OR AFFILIATIONS OF PEOPLE SUMMONED FOR JURY DUTY.  (FN26)  FOR THE
QUESTION A PROSECUTOR OR DEFENSE COUNSEL MUST DECIDE IS NOT WHETHER A
JUROR OF A PARTICULAR RACE OR NATIONALITY IS IN FACT PARTIAL, BUT
WHETHER ONE FROM A DIFFERENT GROUP IS LESS LIKELY TO BE.  (FN27)  IT IS
WELL KNOWN THAT THESE FACTORS ARE WIDELY EXPLORED DURING THE VOIR DIRE,
BY BOTH PROSECUTOR AND ACCUSED, MILES V. UNITED STATES, 103 U.S. 304;
ALDRIDGE V. UNITED STATES, 283 U.S. 308.  (FN28) THIS COURT HAS HELD
THAT THE FAIRNESS OF TRIAL BY JURY REQUIRES NO LESS.  ALDRIDGE, SUPRA.
(FN29) HENCE VENIREMEN ARE NOT ALWAYS JUDGED SOLELY AS INDIVIDUALS FOR
THE PURPOSE OF EXERCISING PEREMPTORY CHALLENGES.  RATHER THEY ARE
CHALLENGED IN LIGHT OF THE LIMITED KNOWLEDGE COUNSEL HAS OF THEM, WHICH
MAY INCLUDE THEIR GROUP AFFILIATIONS, IN THE CONTEXT OF THE CASE TO BE
TRIED. 

WITH THESE CONSIDERATION IN MIND, WE CANNOT HOLD THAT THE STRIKING OF
NEGROES IN A PARTICULAR CASE IS A DENIAL OF EQUAL PROTECTION OF THE
LAWS.  IN THE QUEST FOR AN IMPARTIAL AND QUALIFIED JURY, NEGRO AND
WHITE, PROTESTANT AND CATHOLIC, ARE ALIKE SUBJECT TO BEING CHALLENGED
WITHOUT CAUSE.  TO SUBJECT THE PROSECUTOR'S CHALLENGE IN ANY PARTICULAR
CASE TO THE DEMANDS AND TRADITIONAL STANDARDS OF THE EQUAL PROTECTION
CLAUSE WOULD ENTAIL A RADICAL CHANGE IN THE NATURE AND OPERATION OF THE
CHALLENGE.  THE CHALLENGE, PRO TANTO, WOULD NO LONGER BE PEREMPTORY,
EACH AND EVERY CHALLENGE BEING OPEN TO EXAMINATION, EITHER AT THE TIME
OF THE CHALLENGE OR AT A HEARING AFTERWARDS.  THE PROSECUTOR'S JUDGMENT
UNDERLYING EACH CHALLENGE WOULD BE SUBJECT TO SCRUTINY FOR
REASONABLENESS AND SINCERITY.  AND A GREAT MANY USES OF THE CHALLENGE
WOULD BE BANNED. 

IN THE LIGHT OF THE PURPOSE OF THE PEREMPTORY SYSTEM AND THE FUNCTION
IT SERVES IN A PLURALISTIC SOCIETY IN CONNECTION WITH THE INSTITUTION
OF JURY TRIAL, WE CANNOT HOLD THAT THE CONSTITUTION REQUIRES AN
EXAMINATION OF THE PROSECUTOR'S REASONS FOR THE EXERCISE OF HIS
CHALLENGES IN ANY GIVEN CASE.  THE PRESUMPTION IN ANY PARTICULAR CASE
MUST BE THAT THE PROSECUTOR IS USING THE STATE'S CHALLENGES TO OBTAIN A
FAIR AND IMPARTIAL JURY TO TRY THE CASE BEFORE THE COURT.  THE
PRESUMPTION IS NOT OVERCOME AND THE PROSECUTOR THEREFORE SUBJECTED TO
EXAMINATION BY ALLEGATIONS THAT IN THE CASE AT HAND ALL NEGROES WERE
REMOVED FROM THE JURY OR THAT THEY WERE REMOVED BECAUSE THEY WERE
NEGROES.  ANY OTHER RESULT, WE THINK, WOULD ESTABLISH A RULE WHOLLY AT
ODDS WITH THE PEREMPTORY CHALLENGE SYSTEM AS WE KNOW IT.  HENCE THE
MOTION TO STRIKE THE TRIAL JURY WAS PROPERLY DENIED IN THIS CASE. 

                                     III. 

PETITIONER, HOWEVER, PRESSES A BROADER CLAIM IN THIS COURT.  (FN30)
HIS ARGUMENT IS THAT NOT ONLY WERE THE NEGROES REMOVED BY THE
PROSECUTOR IN THIS CASE BUT THAT THERE NEVER HAS BEEN A NEGRO ON A
PETIT JURY IN EITHER A CIVIL OR CRIMINAL CASE IN TALLADEGA COUNTY AND
THAT IN CRIMINAL CASES PROSECUTORS HAVE CONSISTENTLY AND SYSTEMATICALLY
EXERCISED THEIR STRIKES TO PREVENT ANY AND ALL NEGROES ON PETIT JURY
VENIRES FROM SERVING ON THE PETIT JURY ITSELF.  THIS SYSTEMATIC
PRACTICE, IT IS CLAIMED, IS INVIDIOUS DISCRIMINATION FOR WHICH THE
PEREMPTORY SYSTEM IS INSUFFICIENT JUSTIFICATION. 

WE AGREE THAT THIS CLAIM RAISES A DIFFERENT ISSUE AND IT MAY WELL
REQUIRE A DIFFERENT ANSWER.  WE HAVE DECIDED THAT IT IS PERMISSIBLE TO
INSULATE FROM INQURY THE REMOVAL OF NEGROES FROM A PARTICULAR JURY ON
THE ASSUMPTION THAT THE PROSECUTOR IS ACTING ON ACCEPTABLE
CONSIDERATIONS RELATED TO THE CASE HE IS TRYING, THE PARTICULAR
DEFENDANT INVOLVED AND THE PARTICULAR CRIME CHARGED.  BUT WHEN THE
PROSECUTOR IN A COUNTY, IN CASE AFTER CASE, WHATEVER THE CIRCUMSTANCES,
WHATEVER THE CRIME AND WHOEVER THE DEFENDANT OR THE VICTIM MAY BE, IS
RESPONSIBLE FOR THE REMOVAL OF NEGROES WHO HAVE BEEN SELECTED AS
QUALIFIED JURORS BY THE JURY COMMISSIONERS AND WHO HAVE SURVIVED
CHALLENGES FOR CAUSE, WITH THE RESULT THAT NO NEGROES EVER SERVE ON
PETIT JURIES, THE FOURTEENTH AMENDMENT CLAIM TAKES ON ADDED
SIGNIFICANCE.  CF. YICK WO V. HOPKINS, 118 U.S. 356.  IN THESE
CIRCUMSTANCES, GIVING EVEN THE WIDEST LEEWAY TO THE OPERATION OF
IRRATIONAL BUT TRIAL-RELATED SUSPICIONS AND ANTAGONISMS, IT WOULD
APPEAR THAT THE PURPOSES OF THE PEREMPTORY CHALLENGE ARE BEING
PERVERTED.  IF THE STATE HAS NOT SEEN FIT TO LEAVE A SINGLE NEGRO ON
ANY JURY IN A CRIMINAL CASE, THE PRESUMPTION PROTECTING THE PROSECUTOR
MAY WELL BE OVERCOME.  SUCH PROOF MIGHT SUPPORT A REASONABLE INFERENCE
THAT NEGROES ARE EXCLUDED FROM JURIES FOR REASONS WHOLLY UNRELATED TO
THE OUTCOME OF THE PARTICULAR CASE ON TRIAL AND THAT THE PEREMPTORY
SYSTEM IS BEING USED TO DENY THE NEGRO THE SAME RIGHT AND OPPORTUNITY
TO PARTICIPATE IN THE ADMINISTRATION OF JUSTICE ENJOYED BY THE WHITE
POPULATION.  THESE ENDS THE PEREMPTORY CHALLENGE IS NOT DESIGNED TO
FACILITATE OR JUSTIFY. 

WE NEED PURSUE THIS MATTER NO FURTHER, HOWEVER, FOR EVEN IF A STATE'S
SYSTEMATIC STRIKING OF NEGROES IN THE SELECTION OF PETIT JURIES RAISES
A PRIMA FACIE CASE UNDER THE FOURTEENTH AMENDMENT, WE THINK IT IS
READILY APPARENT THAT THE RECORD IN THIS CASE IS NOT SUFFICIENT TO
DEMONSTRATE THAT THE RULE HAS BEEN VIOLATED BY THE PEREMPTORY SYSTEM AS
IT OPERATES IN TALLADEGA COUNTY.  CF. GLASSER V. UNITED STATES, 315
U.S. 60, 87. 

THE DIFFICULTY WITH THE RECORD BEFORE US, PERHAPS FLOWING FROM THE
FACT THAT IT WAS MADE IN CONNECTION WITH THE MOTION TO QUASH THE
INDICTMENT, IS THAT IT DOES NOT WITH ANY ACCEPTABLE DEGREE OF CLARITY,
SHOW WHEN, HOW OFTEN, AND UNDER WHAT CIRCUMSTANCES THE PROSECUTOR ALONE
HAS BEEN RESPONSIBLE FOR STRIKING THOSE NEGROES WHO HAVE APPEARED ON
PETIT JURY PANELS IN TALLADEGA COUNTY.  THE RECORD IS ABSOLUTELY SILENT
AS TO THOSE INSTANCES IN WHICH THE PROSECUTION PARTICIPATED IN STRIKING
NEGROES, EXCEPT FOR THE INDICATION THAT THE PROSECUTOR STRUCK THE
NEGROES IN THIS CASE AND EXCEPT FOR THOSE OCCASIONS WHEN THE DEFENDANT
HIMSELF INDICATED THAT HE DID NOT WANT NEGROES ON THE JURY.  APPARENTLY
IN SOME CASES, THE PROSECUTION AGREED WITH THE DEFENSE TO REMOVE
NEGROES.  THERE IS NO EVIDENCE, HOWEVER, OF WHAT THE PROSECUTION DID OR
DID NOT DO ON ITS OWN ACCOUNT IN ANY CASES OTHER THAN THE ONE AT BAR. 
(FN31)  IN ONE INSTANCE THE PROSECUTION OFFERED THE DEFENDANT AN ALL
NEGRO JURY BUT THE DEFENDANT IN THAT CASE DID NOT WANT A JURY WITH ANY
NEGRO MEMBERS.  THERE WAS OTHER TESTIMONY THAT IN MANY CASES THE NEGRO
DEFENDANT PREFERRED AN ALL-WHITE TO A MIXED JURY.  ONE LAWYER, WHO HAD
REPRESENTED BOTH WHITE AND NEGRO DEFENDANTS IN CRIMINAL CASES, COULD
RECALL NO NEGRO CLIENT WHO WANTED NEGROES ON THE JURY WHICH WAS TO TRY
HIM.  THE PROSECUTOR HIMSELF, WHO HAD SERVED SINCE 1953, SAID THAT IF
THE NEGRO DEFENDANT WANTED NEGROES ON THE JURY IT WOULD DEPEND "UPON
THE CIRCUMSTANCES AND THE CONDITIONS AND THE CASE AND WHAT I THOUGHT
JUSTICE DEMANDED AND WHAT IT WAS IN THAT PARTICULAR CASE," AND THAT
STRIKING IS DONE DIFFERENTLY DEPENDING ON THE RACE OF THE DEFENDANT AND
THE VICTIM OF THE CRIME.  THESE STATEMENTS DO NOT SUPPORT AN INFERENCE
THAT THE PROSECUTOR WAS BENT ON STRIKING NEGROES, REGARDLESS OF TRIAL
RELATED CONSIDERATIONS.  THE FACT REMAINS, OF COURSE, THAT THERE HAS
NOT BEEN A NEGRO ON A JURY IN TALLADEGA COUNTY SINCE ABOUT 1950.  BUT
THE RESPONSIBILITY OF THE PROSECUTOR IS NOT ILLUMINATED IN THIS
RECORD.  THERE IS NO ALLEGATION OR EXPLANATION, AND HENCE NO
OPPORTUNITY FOR THE STATE TO REBUT, AS TO WHEN, WHY AND UNDER WHAT
CIRCUMSTANCES IN CASES PREVIOUS TO THIS ONE THE PROSECUTOR USED HIS
STRIKES TO REMOVE NEGROES.  IN SHORT, PETITIONER HAS NOT LAID THE
PROPER PREDICATE FOR ATTACKING THE PEREMPTORY STRIKES AS THEY WERE USED
IN THIS CASE.  PETITIONER HAS THE BURDEN OF PROOF AND HE HAS FAILED TO
CARRY IT.    A DISSENT ASSERTS THAT A SHOWING THAT THERE ARE QUALIFIED
NEGROES AND THAT NONE HAVE SERVED MAKES OUT A PRIMA FACIE CASE OF
PURPOSEFUL DISCRIMINATION ON THE PART OF THE STATE AND THAT THE
CONTINUED VITALITY OF STRAUDER V. WEST VIRGINIA, 100 U.S. 303, AS WELL
AS "A PRACTICAL ACCOMMODATION" BETWEEN THE CONSTITUTIONAL RIGHT OF
EQUAL PROTECTION AND THE STATUTORY RIGHT OF PEREMPTORY CHALLENGE,
REQUIRES APPLICATION OF SUCH A RULE HERE.  WHERE DISCRIMINATION IS SAID
TO OCCUR IN THE SELECTION OF VENIREMEN BY STATE JURY COMMISSIONERS,
"PROOF THAT NEGROES CONSTITUTED A SUBSTANTIAL SEGMENT OF THE POPULATION
...  , THAT SOME NEGROES WERE QUALIFIED TO SERVE AS JURORS, AND THAT
NONE HAD BEEN CALLED FOR JURY SERVICE OVER AN EXTENDED PERIOD OF TIME
...  CONSTITUTES PRIMA FACIE PROOF OF THE SYSTEMATIC EXCLUSION OF
NEGROES FROM JURY SERVICE," HERNANDEZ V. TEXAS, 347 U.S. 475, 480, AS
DOES PROOF "THAT NO NEGRO HAD SERVED ON A CRIMINAL COURT GRAND OR PETIT
JURY FOR A PERIOD OF THIRTY YEARS," PATTON V. MISSISSIPPI, 332 U.S.
463, 466.  SEE ALSO NORRIS V. ALABAMA, 294 U.S. 587; HARPER V.
MISSISSIPPI, 251 MISS.  699, 171 SO. 2D 129 (1965).  TOTAL EXCLUSION OF
NEGROES BY THE STATE OFFICERS RESPONSIBLE FOR SELECTING NAMES OF JURORS
GIVES RISE TO A FAIR INFERENCE OF DISCRIMINATION ON THEIR PART, AN
INFERENCE WHICH IS DETERMINATIVE ABSENT SUFFICIENT REBUTTAL EVIDENCE. 
BUT THIS RULE OF PROOF CANNOT BE WOODENLY APPLIED TO CASES WHERE THE
DISCRIMINATION IS SAID TO OCCUR DURING THE PROCESS OF PEREMPTORY
CHALLENGE OF PERSONS CALLED FOR JURY SERVICE.  UNLIKE THE SELECTION
PROCESS, WHICH IS WHOLLY IN THE HANDS OF STATE OFFICERS, DEFENSE
COUNSEL PARTICIPATE IN THE PEREMPTORY CHALLENGE SYSTEM, AND INDEED
GENERALLY HAVE A FAR GREATER ROLE THAN ANY OFFICERS OF THE STATE.  IT
IS FOR THIS REASON THAT A SHOWING THAT NEGROES HAVE NOT SERVED DURING A
SPECIFIED PERIOD OF TIME DOES NOT, ABSENT A SUFFICIENT SHOWING OF THE
PROSECUTOR'S PARTICIPATION, GIVE RISE TO THE INFERENCE OF SYSTEMATIC
DISCRIMINATION ON THE PART OF THE STATE.  THE ORDINARY EXERCISE OF
CHALLENGES BY DEFENSE COUNSEL DOES NOT, OF COURSE, IMPLY PURPOSEFUL
DISCRIMINATION BY STATE OFFICIALS.  THIS IS NOT TO SAY THAT A DEFENDANT
ATTACKING THE PROSECUTOR'S USE OF PEREMPTORY CHALLENGES OVER A PERIOD
OF TIME NEED ELICIT AN ADMISSION FROM THE PROSECUTOR THAT
DISCRIMINATION ACCOUNTED FOR HIS REJECTION OF NEGROES, ANY MORE THAN A
DEFENDANT ATTACKING JURY SELECTION NEED OBTAIN SUCH AN ADMISSION FROM
THE JURY COMMISSIONERS.  BUT THE DEFENDANT MUST, TO POSE THE ISSUE,
SHOW THE PROSECUTOR'S SYSTEMATIC USE OF PEREMPTORY CHALLENGES AGAINST
NEGROES OVER A PERIOD OF TIME.   THIS IS THE TEACHING OF HERNANDEZ V.
TEXAS, 347 U.S. 475; NORRIS V. ALABAMA, 294 U.S. 587; PATTON V.
MISSISSIPPI, 332 U.S. 463.  WE SEE NO REASON, EXCEPT FOR BLIND
APPLICATION OF A PROOF STANDARD DEVELOPED IN A CONTEXT WHERE THERE IS
NO QUESTION OF STATE RESPONSIBILITY FOR THE ALLEGED EXCLUSION, WHY THE
DEFENDANT ATTACKING THE PROSECUTOR'S SYSTEMATIC USE OF CHALLENGES
AGAINST NEGROES SHOULD NOT BE REQUIRED TO ESTABLISH ON THE RECORD THE
PROSECUTOR'S CONDUCT IN THIS REGARD, ESPECIALLY WHERE THE SAME
PROSECUTOR FOR MANY YEARS IS SAID TO BE RESPONSIBLE FOR THIS PRACTICE
AND IS QUITE AVAILABLE FOR QUESTIONING ON THIS MATTER.  (FN32)
ACCORDINGLY THE JUDGMENT IS AFFIRMED. 

FN1  NEAL V. DELAWARE, 103 U.S. 370; NORRIS V. ALABAMA, 294 U.S. 587;
HALE V. KENTUCKY, 303 U.S. 613; PIERRE V. LOUISIANA, 306 U.S. 354;
SMITH V. TEXAS, 311 U.S. 128; HILL V. TEXAS, 316 U.S. 400; AKINS V.
TEXAS, 325 U.S. 398; PATTON V. MISSISSIPPI, 332 U.S. 463; CASSELL V.
TEXAS, 339 U.S. 282; AVERY V. GEORGIA, 345 U.S. 559; HERNANDEZ V.
TEXAS, 347 U.S. 475; REECE V. GEORGIA, 350 U.S. 85; EUBANKS V.
LOUISIANA, 356 U.S. 584; ARNOLD V. NORTH CAROLINA, 376 U.S. 773. 

FN2  THERE IS A SPECIAL STATUTE GOVERNING JURY SELECTION IN TALLADEGA
COUNTY.  ALA. ACTS, 1955 SESS., ACT NO. 475, VOL. 2, AT 1081.  THE
PROVISIONS PERTINENT TO THIS CASE FOLLOW THE GENERAL STATE STATUTE AND
THUS ALL REFERENCES WILL BE TO THE LATTER. 

ALA. CODE, TIT. 30, SEC. 21 (1958) PROVIDES: 

"QUALIFICATIONS OF PERSONS ON JURY ROLL.  - THE JURY COMMISSION SHALL
PLACE ON THE JURY ROLL AND IN THE JURY BOX THE NAMES OF ALL MALE
CITIZENS OF THE COUNTY WHO ARE GENERALLY REPUTED TO BE HONEST AND
INTELLIGENT MEN AND ARE ESTEEMED IN THE COMMUNITY FOR THEIR INTEGRITY,
GOOD CHARACTER AND SOUND JUDGMENT; BUT NO PERSONS MUST BE SELECTED WHO
IS UNDER TWENTY-ONE OR WHO IS AN HABITUAL DRUNKARD, OR WHO, BEING
AFFLICTED WITH A PERMANENT DISEASE OR PHYSICAL WEAKNESS IS UNFIT TO
DISCHARGE THE DUTIES OF A JUROR; OR CANNOT READ ENGLISH OR WHO HAS EVER
BEEN CONVICTED OF ANY OFFENSE INVOLVING MORAL TURPITUDE.  IF A PERSON
CANNOT READ ENGLISH AND HAS ALL THE OTHER QUALIFICATIONS PRESCRIBED
HEREIN AND IS A FREEHOLDER OR HOUSEHOLDER HIS NAME MAY BE PLACED ON THE
JURY ROLL AND IN THE JURY BOX.  NO PERSON OVER THE AGE OF SIXTY-FIVE
YEARS SHALL BE REQUIRED TO SERVE ON A JURY OR TO REMAIN ON THE PANEL OF
JURORS UNLESS HE IS WILLING TO DO SO." 

FN3  ALTHOUGH THE STATUTE AIMS AT AN EXHAUSTIVE JURY LIST, FAILURE TO
INCLUDE THE NAME OF EVERY QUALIFIED PERSON ON THE JURY ROLL IS NOT A
GROUND TO QUASH AN INDICTMENT OR VENIRE, ABSENT FRAUD OR PURPOSEFUL
DISCRIMINATION.  FIKES V. ALABAMA, 263 ALA. 89, 81 SO. 2D 303 (1955),
REV'D ON OTHER GROUNDS, 352 U.S. 191. 

FN4  THE COMMISSIONERS TESTIFIED THAT SINCE 1959 THEY HAVE MET ONCE
OR TWICE YEARLY, FOR ABOUT AN HOUR EACH MEETING, AT WHICH TIME EACH
COMMISSIONER PRESENTED A LIST OF PERSONS HE DEEMED QUALIFIED FOR JURY
SERVICE.  THEIR NAMES WERE OBTAINED FROM DISPARATE SOURCES, EACH
COMMISSIONER GOING ABOUT HIS TASK IN HIS AREA OF THE COUNTY IN HIS OWN
WAY.  THE CHIEF COMMISSIONER TESTIFIED THAT WITH THE ASSISTANCE OF CITY
DIRECTORIES, AND REGISTRATION LISTS, HE WENT OUT INTO THE BEATS TO
WHICH HE WAS ASSIGNED AND ASKED PERSONS HE KNEW FOR SUGGESTIONS AND
INFORMATION.  HE ALSO SECURED NAMES FROM CUSTOMERS OF HIS PAINT STORE. 
HE AVERRED THAT HE WAS FAMILIAR WITH NEGRO AND WHITE MEMBERS OF THE
COMMUNITY, TALKED WITH BOTH, AND USED THE SAME METHOD FOR DETERMINING
THE QUALIFICATIONS OF BOTH NEGRO AND WHITE CITIZENS.  ANOTHER
COMMISSIONER, WORKING A PREDOMINANTLY RURAL AREA, TESTIFIED THAT
MEMBERSHIP LISTS OF FARM BUREAU COOPERATIVES IN THE AREA AND THE RURAL
ELECTRIC COOPERATIVE WERE HIS MAIN SOURCES OF NAMES, BOTH ORGANIZATIONS
HAVING A SUBSTANTIAL NUMBER OF NEGRO AND WHITE PERSONS.  HE ALSO RELIED
ON THE CITY DIRECTORY FOR TALLADEGA CITY AND ON THE PEOPLE HE KNEW
THROUGH HIS 40 YEARS OF RESIDENCE AND FARMING IN THE AREA.  HE NOTED
THAT HE DID NOT RELY ON PREDOMINANTLY WHITE SOCIAL CLUBS OR ON NEGRO
CHURCHES, ADDING THAT HE WAS NOT FAMILIAR WITH THE RELATIVE PERCENTAGE
OF NEGROES OR WHITES IN HIS BEATS AND COULD NOT IDENTIFY THE PERSONS ON
THE JURY LIST BY RACE.  HE ALSO STATED THAT THE JURY LIST DID NOT
CONTAIN THE NAMES OF ALL QUALIFIED CITIZENS AND THAT COMPILATION OF AN
ALL-INCLUSIVE LIST WOULD BE IMPOSSIBLE.  THE THIRD COMMISSIONER
TESTIFIED THAT HE USED THE TELEPHONE DIRECTORY AND WENT OUT INTO THE
VARIOUS BEATS TO GATHER NAMES THROUGH LOCAL MERCHANTS AND CITIZENS,
BOTH NEGRO AND WHITE.  HE ALSO RELIED ON THE CUSTOMERS OF HIS
BUSINESS.  HE TOO WAS UNABLE TO IDENTIFY THE PERSONS ON THE JURY LIST
BY RACE.  THE CLERK STATED THAT SHE ASSISTED BY SUPPLYING SOME
ADDITIONAL NAMES TO THE COMMISSIONERS; SHE COMPILED THESE NAMES FROM
VARIOUS DIRECTORIES, CHURCH ROLLS, CLUB ROLLS AND FROM LISTS SENT BY
THE MANAGERS OF LOCAL PLANTS AND INDUSTRIES.  SHE TESTIFIED THAT SHE
WAS ACQUAINTED WITH MORE WHITE PERSONS THAN NEGROES BUT THAT SHE DID
NOT VISIT THE BEATS OR TALK WITH PERSONS IN THE BEATS TO GATHER NAMES
FOR THE COMMISSION'S APPROVAL.  ALL THE COMMISSIONERS AVERRED THAT THEY
DID NOT WATCH THE COLOR LINE IN OBTAINING NAMES, DID NOT KNOW THE
NUMBER OF NEGROES IN THEIR BEATS, AND, ACCORDINGLY, DID NOT COUNT THE
NUMBER OF WHITES AND COLORED PEOPLE IN PREPARING THE LISTS.  THE RECORD
CONTAINS NO ADMISSION BY THE COMMISSIONERS THAT THEY HAD RELATIVELY FEW
NEGRO ACQUAINTANCES OR THAT THEY TENDED PRIMARILY TO USE WHITE CHURCH
LISTS OR WHITE CLUB LISTS. 

FN5  "'IT MAY BE THAT THE JURY COMMISSIONERS DID NOT GIVE THE NEGRO
RACE A FULL PRO RATA WITH THE WHITE RACE IN THE SELECTION OF THE GRAND
AND PETIT JURORS IN THIS CASE, STILL THIS WOULD NOT BE EVIDENCE OF
DISCRIMINATION.  IF THEY FAIRLY AND HONESTLY ENDEAVORED TO DISCHARGE
THEIR DUTY, AND DID NOT IN FACT DISCRIMINATE AGAINST THE NEGRO RACE IN
THE SELECTION OF THE JURY LISTS, THEN THE CONSTITUTION OF THE UNITED
STATES HAS NOT BEEN VIOLATED.'"  THOMAS V. TEXAS, 212 U.S. 278, 283. 

FN6  THE ISSUE IN REGARD TO STRIKING NEGROES WAS RAISED IN A
DIFFERENT FORM IN THE MOTION TO QUASH THE VENIRE.  IT READ IN PERTINENT
PART: 

"4.  DEFENDANT AVERS THE EXISTENCE OF A SYSTEM OR PRACTICE IN THE
DRAWING OR ORGANIZATION OF JURIES TO SERVE IN  TALLADEGA COUNTY,
ALABAMA, DELIBERATELY DESIGNED TO DISCRIMINATE AGAINST MEMBERS OF THE
NEGRO RACE IN ORDER TO PREVENT THEM FROM SERVING ON JURIES BY EITHER
EXCLUDING THEM FROM THE VENIRE ALTOGETHER OR BY KEEPING THE NUMBER
INCLUDED SO SMALL THAT THEY CAN BE SYSTEMATICALLY AND UNIFORMLY STRUCK
FROM THE VENIRE AND PREVENTED FROM SERVING IN THE TRIAL OF ANY CASE." 

THIS CLAIM WAS REPEATED IN THE MOTION TO DECLARE VOID THE PETIT JURY
SELECTED. 

"(3)  THAT BECAUSE OF THE SYSTEMATIC AND ARBITRARY METHOD OF
SELECTING THE NAMES OF QUALIFIED MALE CITIZENS BY THE JURY COMMISSION
OF TALLADEGA COUNTY, ALABAMA, IT IS IMPOSSIBLE FOR QUALIFIED MEMBERS OF
THE NEGRO RACE TO SERVE AS JURORS IN THIS CAUSE OR ANY CAUSE  ...  ." 

THE ABOVE CLAIM AS WELL AS THE OBJECTION TO THE PROSECUTOR'S EXERCISE
OF HIS STRIKES AGAINST THE SIX NEGROES IN THIS CASE WAS REPEATED IN THE
MOTION FOR A NEW TRIAL.  NO FURTHER CLAIMS WERE MADE AND NO FURTHER
EVIDENCE WAS TAKEN ON ANY OF THESE MOTIONS. 

FN7  IN ALL PROSECUTIONS BY INDICTMENT THE ACCUSED HAS A RIGHT TO A
SPEEDY PUBLIC TRIAL BY AN IMPARTIAL JURY IN THE COUNTY IN WHICH THE
OFFENSE WAS COMMITTED.  ALA. CONST. OF 1901, SEC. 6.  SEE ALSO ALA.
CONST. OF 1901, SECS. 11, 12; COLLINS V. STATE, 88 ALA. 212, 7 SO. 260
(1890). 

FN8  ALABAMA HAD LONG PROVIDED BOTH THE DEFENDANT AND PROSECUTOR WITH
A SUBSTANTIAL NUMBER OF PEREMPTORY CHALLENGES.  UNDER THE 1867 CODE,
THE DEFENDANT WAS ENTITLED TO 21 PEREMPTORIES IN CAPITAL CASES AND 15
IN NONCAPITAL FELONY CASES; CORRESPONDINGLY THE STATE HAD 14
PEREMPTORIES IN CAPITAL TRIALS AND 10 IN OTHER FELONY TRIALS.  1867
ALA. REV. CODE SECS. 4178, 4179.  THESE NUMBERS WERE ALTERED IN THE
1907 ACT, THE DEFENDANT HAVING EIGHT PEREMPTORIES IN A NONCAPITAL
FELONY CASE AND THE STATE FOUR.  THE NUMBERS IN CAPITAL CASES REMAINED
THE SAME.  1907 ALA. CODE SEC. 7275.  THE STRUCK-JURY SYSTEM WAS
INTRODUCED IN 1909 AS A PART OF A COMPREHENSIVE AMENDMENT OF THE
STATUTES GOVERNING THE SELECTION AND IMPANELING OF JURIES IN THE
STATE.  1909 LEG.  ACTS, SPEC. SESS., P. 319.   THE HISTORY AND
PURPOSES OF THIS LEGISLATION, AS SET OUT BY THE SPONSOR OF THE ACT, MAY
BE FOUND IN JOHN, THE JURY LAW, 1910-1911 ALABAMA BAR ASSN. REP. 198: 

"THE PROVISION FOR STRUCK JURIES IN CRIMINAL CASES, IS FOUND TO BE
MUCH FAIRER TO THE SOLICITOR AND THE ATTORNEYS FOR DEFENDANTS, AND
UNDER IT A JURY CAN BE MORE EASILY AND QUICKLY OBTAINED, AND IT WOULD
BE A DECIDED STEP BACKWARD TO RESTORE THE CHALLENGE SYSTEM, WITH ITS
DELAY AND CHANCES FOR ERRORS."  ID., AT 205. 

FN9  IT WAS THOUGHT THAT PEREMPTORY CHALLENGES WERE ALLOWED AT COMMON
LAW IN CAPITAL FELONIES ONLY.  THUS BLACKSTONE STATES:  "IN CRIMINAL
CASES, OR AT LEAST IN CAPITAL ONES, THERE IS, IN FAVOREM VITAE, ALLOWED
TO THE PRISONER AN ARBITRARY AND CAPRICIOUS SPECIES OF CHALLENGE TO A
CERTAIN NUMBER OF JURORS, WITHOUT SHOWING ANY CAUSE AT ALL; WHICH IS
CALLED A PEREMPTORY CHALLENGE:  A PROVISION FULL OF THAT TENDERNESS AND
HUMANITY TO PRISONERS, FOR WHICH OUR ENGLISH LAWS ARE JUSTLY FAMOUS." 
4 BLACKSTONE COMMENTARIES 353 (15TH ED. 1809)(HEREAFTER BL. COMM.). 

THIS STATEMENT WAS NOT FAR AMISS, SINCE MOST FELONIES WERE GENERALLY
PUNISHABLE BY DEATH.  4 BL. COMM. 98.  BUT PEREMPTORIES WERE ALLOWABLE
IN TRIALS OF FELONIES THAT WERE NOT CAPITAL.  GRAY V. REG., 11 CL. &
FIN.  427 (H.L. 1844).  SEE I THOMPSON, TRIALS SEC.  42 (2D ED.
1912)(HEREAFTER THOMPSON); I STEPHEN, HISTORY OF CRIMINAL LAW OF
ENGLAND 302 (1883)(HEREAFTER STEPHEN). 

FN10  THE DEFENDANT'S RIGHT REMAINED UNALTERED UNTIL 22 HEN.  8, C.
14, SEC. 6 (1530); 25 HEN.  8, C. 3 (1533), WHEN THE NUMBER WAS LIMITED
TO 20 IN ALL CASES EXCEPT HIGH TREASON.  SEE GENERALLY PROFFATT, TRIAL
BY JURY SEC. 156 (1877)(HEREAFTER PROFFATT). 

FN11  LORD GREY'S CASE, 9 HOW.  ST. TR. 128 (1682); REG. V. FROST, 9
CAR.  & P. 129 (1839); MANSELL V. REG., 8 EL. & BL. 54 (1857); 4 BL.
COMM. 353.  THE NUMBER OF JURORS CALLED WAS IN THE DISCRETION OF THE
COURT AND IT IS REPORTED THAT THE RIGHT TO STAND ASIDE WAS EXERCISED
LIBERALLY.  PROFFATT SEC. 160.  ALL ATTEMPTS TO LIMIT OR ABOLISH THE
CROWN'S RIGHT WERE REJECTED.  REG. V. FROST, SUPRA; O'COIGLY'S CASE, 26
HOW.  ST. TR. 1191, 1231; I THOMPSON SEC. 49; BUSCH, LAW AND TACTICS IN
JURY TRIALS SEC. 69 (1949) (HEREAFTER BUSCH). 

FN12  IT REMAINS THE LAW OF ENGLAND TODAY, EXCEPT THE NUMBER THE
DEFENDANT MAY NOW EXERCISE IS SEVEN.  SEE 6 GEO. 4, C. 50, SEC. 29
(1825); 11 AND 12 GEO. 6, C. 58, SEC.  35 (CRIMINAL JUSTICE ACT OF
1948).  THE ACTUAL USE OF CHALLENGES BY EITHER SIDE HAS BEEN RARE, FOR
AT LEAST A CENTURY, BUT THE CONTINUED AVAILABILITY OF THE RIGHT IS
CONSIDERED IMPORTANT.  I STEPHEN 303; DEVLIN, TRIAL BY JURY 29-37
(1956)(HEREAFTER DEVLIN); HOWARD, CRIMINAL JUSTICE IN ENGLAND 362-364
(1931)(HEREAFTER HOWARD).    FN13  UNITED STATES V. JOHNS, 4 DALL. 
412, 414 (CIR. CT. PA. 1806).  MR. JUSTICE WASHINGTON, SITTING ON
CIRCUIT, STATED: 

"THE RIGHT OF CHALLENGE WAS A PRIVILEGE HIGHLY ESTEEMED, AND
ANXIOUSLY GUARDED, AT THE COMMON LAW; AND IT CANNOT BE DOUBTED, BUT
THAT AT THE COMMON LAW, A PRISONER IS ENTITLED, ON A CAPITAL CHARGE, TO
CHALLENGE PEREMPTORILY, THIRTY-FIVE JURORS.  IF, THEREFORE, THE ACT OF
CONGRESS HAS SUBSTITUTED NO OTHER RULE  ...  THE COMMON LAW RULE MUST
BE PURSUED."  SEE ALSO UNITED STATES V. WILSON & PORTER, 1 BALD.  78,
82 (CIR. CT. PA. 1830); UNITED STATES V. DOUGLASS, FED. CASE.  NO.
14989, 2 BLATCH.  C.C. 207 (CIR. CT. S.D.N.Y. 1851).  BUT SEE UNITED
STATES V. COTTINGHAM, FED. CAS. NO. 14872, 2 BLATCH.  C.C. 470 (CIR.
CT. N.D.N.Y. 1852). 

IN UNITED STATES V. MARCHANT, 12 WHEAT.  480, THIS COURT INDICATED
THAT THE CROWN'S POWER TO STAND ASIDE WAS A PART OF THE COMMON LAW
INHERITED FROM THE ENGLISH.  FEDERAL COURTS ALLOWED THE GOVERNMENT TO
STAND ASIDE ON THE BASIS OF THIS DECISION.  UNITED STATES V. WILSON &
PORTER, SUPRA; UNITED STATES V. DOUGLASS, SUPRA.  IN 1856, THE COURT
HELD IN UNITED STATES V. SHACKLEFORD, 18 HOW.  588, THAT FEDERAL
STATUTES AFFORDING THE DEFENDANT A RIGHT OF CHALLENGE DID NOT
INCORPORATE THE GOVERNMENT'S RIGHT TO STAND ASIDE.  THE GOVERNMENT
COULD DO THIS ONLY BY VIRTUE OF THE  1840 ACT, 5 STAT. 394, EMPOWERING
THE FEDERAL COURTS TO ADOPT THE STATE PRACTICE IN REGARD TO SELECTION
AND IMPANELING OF JURIES. 

FN14  A FEW YEARS LATER CONGRESS EXTENDED THE DEFENDANT'S RIGHT TO 10
CHALLENGES IN ALL NONCAPITAL FELONY CASES AND THE GOVERNMENT WAS
ENTITLED TO THREE IN SUCH CASES; IT ALSO EXTENDED THE RIGHT TO
MISDEMEANORS AND CIVIL CASES, EACH PARTY BEING ENTITLED TO THREE.  17
STAT. 282 (1872). 

FN15  SEE 36 STAT. 1166, SEC. 287 (1911) PROVIDING THAT WHERE THE
OFFENSE IS A CAPITAL OFFENSE OR TREASON, THE DEFENDANT IS ENTITLED TO
20 PEREMPTORY CHALLENGES AND THE UNITED STATES TO SIX; IN ALL OTHER
FELONY TRIALS, THE DEFENDANT HAS 10, THE UNITED STATES SIX. 

RULE 24(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES: 

"(B)  PEREMPTORY CHALLENGES.  IF THE OFFENSE CHARGED IS PUNISHABLE BY
DEATH, EACH SIDE IS ENTITLED TO 20 PEREMPTORY CHALLENGES.  IF THE
OFFENSE CHARGED IS PUNISHABLE BY IMPRISONMENT FOR MORE THAN ONE YEAR,
THE GOVERNMENT IS ENTITLED TO 6 PEREMPTORY CHALLENGES AND THE DEFENDANT
OR DEFENDANTS JOINTLY TO 10 PEREMPTORY CHALLENGES.  IF THE OFFENSE
CHARGED IS PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN ONE YEAR OR BY
FINE OR BOTH, EACH SIDE IS ENTITLED TO 3 PEREMPTORY CHALLENGES.  IF
THERE IS MORE THAN ONE DEFENDANT, THE COURT MAY ALLOW THE DEFENDANTS
ADDITIONAL PEREMPTORY CHALLENGES AND PERMIT THEM TO BE EXERCISED
SEPARATELY OR JOINTLY." 

THE GOVERNMENT'S RIGHT TO STAND ASIDE WAS DEEMED TO SURVIVE EARLY
STATUTES GIVING THE GOVERNMENT PEREMPTORY CHALLENGES.  SAWYER V. UNITED
STATES, 202 U.S. 150. 

FN16  SEE WATERFORD & WHITEHALL TURNPIKE CO. V. PEOPLE, 9 BARB.  161
(SUP. CT. N.Y.  1850); PEOPLE V. MCQUADE, 110 N.Y. 284, 293, 18 N.E.
156, 158 (1888); STATE V. HUMPHREYS, 1 TENN. 306 (1808); BROWN V.
STATE, 62 N.J.L. 666, 678-688, 42 A. 811, 814-818 (1899), AFF'D, 175
U.S. 172; HENDRICK V. COMMONWEALTH, 5 LEIGH 707, 715 (VA. GEN. CT.
1834); ROBINSON V. STATE, 1 GA. 563, 571 (1846); STATE V. ARTHUR, 13
N.C. 217 (1829); STATE V. BENTON, 19 N.C. 196 (1836).  BUT CF. STATE V.
GEORGE, 1 DEL. CAS. 161 (CT. Q. SESS. 1797).  SEE ALSO II BISHOP,
CRIMINAL PROCEDURE SEC. 941 (1913)(HEREAFTER BISHOP); I THOMPSON SEC.
42. 

FN17  WATERFORD & WHITEHALL TURNPIKE CO., SUPRA; COMMONWEALTH V.
EISENHOWER, 181 PA.  470, 37 A. 521 (1897); JEWELL V. COMMONWEALTH, 22
PA. 94 (1853); STATE V. ARTHUR, 13 N.C.  217 (1829); PROFFATT SEC. 162;
I THOMPSON SEC. 49; II BISHOP SECS. 938, 939. 

FN18  E.G., 1873 N.Y. LAWS, C. 427; 1874 ILL. REV. STAT., P. 411;
MATON V. PEOPLE, 15 ILL. 536 (1854); BROWN V. STATE, 62 N.J.L. 666, 684
685, 42 A. 811, 817 (1899), AFF'D, 175 U.S. 172; 1869 MASS. ACTS, C.
151; 1860 PA. LAWS 427, ACT NO. 375, SECS. 36, 37; WARREN V.
COMMONWEALTH, 37 PA. 45 (1860); STATE V. BRIGGS, 27 S.C. 80, 2 S.E. 854
(1887); BOON V. STATE, 1 GA. 618 (1846); CAL. LAWS 1850-1853, C. 121,
SEC. 343; 1863-1864 CAL. STATS., C. 348, P. 394, SEC. 1; PROFFATT SEC.
161. 

THE STATE'S RIGHT TO STAND ASIDE WAS DEEMED TO SURVIVE THESE
STATUTES, WARREN V. COMMONWEALTH, 37 PA. 45 (1860); HAINES V.
COMMONWEALTH, 100 PA. 317, 322 (1882); STATE V. MCNINCH, 12 S.C. 89
(1879); STATE V. BENTON, 19 N.C. 196, 203 (1836); I THOMPSON SEC. 49,
ALTHOUGH OPINION WAS DIVIDED, SEALY V. STATE, 1 GA. 213 (1846); MATHIS
V. STATE, 31 FLA.  291, 315, 12 SO. 681, 688 (1893).  IN MANY STATES
THIS RIGHT HAS BEEN EXPRESSLY BARRED BY STATUTE.  E.G., N.C. GEN STAT.
SECS. 15-163, 15-164 (1953); PA. STAT. ANN., TIT. 19, SEC.  811 (1964);
S.C. CODE SEC. 38-211 (1962). 

FN19  THE CHARGES LEVELED AT PEREMPTORY CHALLENGES HAVE BEEN THAT
THEY REQUIRED SUMMONING A LARGE NUMBER OF VENIREMEN, THAT THEY WERE
USED BY DEFENDANTS TO ELIMINATE INTELLIGENT AND HIGHLY QUALIFIED
JURORS, THAT THE IMBALANCE IN NUMBER IN FAVOR OF DEFENDANTS WAS UNFAIR,
THAT THE VOIR DIRE AS A PREDICATE FOR THEIR EXERCISE WAS TOO EXTENSIVE
AND THAT THEY GENERALLY PROTRACTED THE SELECTION PROCESS.  SEE PROPOSED
LEGISLATION FOR JURY REFORM IN NEW YORK, 30 COL. L. REV. 721, 726
(1930); MISSOURI CRIME SURVEY 356-357 (1926); EVANS, RECOMMENDATIONS
FOR REFORMS IN CRIMINAL PROCEDURE, 24 ILL. L. REV. 112, 113-114 (1929);
CHALLENGES AND THE POWERS OF JUDGES, 23 GREEN  BAG 84 (1911); 3 PROC.
AM. LAW INST.  501 (1925); REPORT OF ILLINOIS JUDICIAL ADVISORY COUNCIL
17-18 (1931); EXTRACTS FROM REP.  OF COMM. TO THIRD ANN. MEETING OF
A.L.I., DEFECTS IN CRIMINAL JUSTICE, 11 A.B.A.J. 297, 298 (1925);
SMITH, CRIMINAL JUSTICE IN AMERICA:  A REPLY, 11 A.B.A.J. 797-798
(1925). 

FN20  CLASSIFICATION OF OFFENSES AND PUNISHMENT ON WHICH THE NUMBER
EXERCISABLE DEPENDS VARIES AMONG THE STATES, AS DOES THE NUMBER OF
CHALLENGES WITHIN THESE CATEGORIES, AND HENCE MEANINGFUL GENERALIZATION
IN REGARD TO CURRENT STATUTES IS NOT FEASIBLE.  FOR AN EXAMPLE OF THESE
VARIATIONS, SEE ARIZ. REV. STAT., RULE CRIM. PROC. 225 (1956); CONN.
GEN. STAT. SEC.  51-242 (1958); DEL. CODE ANN., SUPER.  CT. RULES CRIM.
PROC. 24(B) (1953); CAL. PENAL CODE SEC.  1070 (1956); FLA. STAT. SEC.
913.08 (1963); GA. CODE ANN. SEC. 59-805 (1937); ILL. ANN.  STAT., C.
38, SEC. 115-4(E) (1964); MASS. GEN. LAWS ANN., C. 234, SEC. 29 (1959);
MD. ANN.  CODE, RULES PROC. 746 (1963); MO. ANN. STAT. SEC. 546.180
(1953); N.J. STAT. ANN. 2A:78-7 C AND D (1952); N.Y. CRIM. CODE AND
PENAL LAW SECS. 370, 373 (1964); N.C. GEN STAT. SECS.  15-163, 15-164
(1953); OHIO REV. CODE ANN., TIT. 29, SECS. 2945.21, 2945.22 (1954);
PA.  STAT. ANN., TIT. 19, SEC. 811 (1964); S.C. CODE SEC. 38-211
(1962); TENN. CODE ANN. SEC.  40-2510 (1955); TEX. CODE CRIM. PROC.,
TIT. 8, ARTS. 615, 634 (1941); UTAH CODE ANN. SEC.  77-30-15 (1953). 

FOR A LISTING OF THE STATE STATUTES IN EFFECT IN 1930 AND THE
VARIATIONS IN NUMBER AND CLASSIFICATIONS AMONG THE STATES, SEE A.L.I.
CODE OF CRIMINAL PROCEDURE, COMMENTARY TO SEC. 282, AT 855-862 (1930). 

FN21  HISTORICALLY 48 NAMES WOULD BE SELECTED FROM A SPECIAL JURY
LIST AND EACH SIDE WOULD ALTERNATELY STRIKE 12 NAMES, THE REMAINING 24
BEING SUMMONED FOR THE CASE.  BROWN V. STATE, 62 N.J.L. 666, 688-690,
42 A. 811, 818 (1899), AFF'D, 175 U.S. 172; 3 BL. COMM.  357; FORSYTH,
HISTORY OF TRIAL BY JURY 173.  USE OF THE STRUCK JURY SYSTEM WAS NOT
CONFINED TO CRIMINAL CASES AT COMMON LAW, AS THE PEREMPTORY CHALLENGE
WAS.  BUSCH SEC. 62; PROFFATT SEC. 72. 

FN22  SEE N.J. STAT. ANN. 2A:75-1, 2A:75-2, 2A:75-3; MD. ANN. CODE,
RULES PROC. 543 (1963); BUSCH SEC. 62; 31 AM. JUR.  SEC.  90.  CF. 28
U.S.C. SEC. 1866 (1958 ED.). 

FN23  JOHN, THE JURY LAW, 1910-1911 ALABAMA BAR ASSN. REP. 198, 205. 

FN24  DEVLIN, SUPRA, AT 20-36.  ANOTHER REASON SUGGESTED FOR THE
DIFFERENCE LIES IN THE GREATER CONTROL IN ENGLAND OVER PRETRIAL
PUBLICITY.  "ONE OF THE SALIENT REASONS WHY BOTH COURT AND COUNSEL HAVE
CONFIDENCE IN THE IMPARTIALITY AND INTEGRITY OF TRIAL JURORS IS THE
AUTHORITY THE COURTS EXERCISE IN PREVENTING THE NEWSPAPERS FROM
PREJUDGING A PENDING CASE."  HOWARD 363 (1931). 

FN25  SEE DEVLIN, SUPRA, AT 32-34; BUSCH SECS. 145-154; BODIN,
SELECTING A JURY 44-72 (PLI 1954)(HEREAFTER BODIN). 

FN26  SEE, E.G., ALDREDGE V. UNITED STATES, 283 U.S. 308; HALL V.
UNITED STATES, 83 U.S. APP. D.C. 166, 168 F.2D 161, CERT. DENIED, 334
U.S. 853; STATE V. HIGGS, 143 CONN. 138, 120 A.2D 152 (1956); GURLEY V.
STATE, 164 ARK. 397, 262 S.W. 636 (1924); PEOPLE V. CAR SOY, 57 CAL.
102 (1880); PEOPLE V. REYES, 5 CAL. 347 (1855); FENDRICK V. STATE, 39
TEX. CR. R. 147, 45 S.W. 589 (1898); STATE V. CARSON, 131 S.C. 42, 126
S.E.  757 (1925); WASY V. STATE.  234 IND. 52, 123 N.E.2D 462 (1955);
PEOPLE V. ROXBOROUGH, 307 MICH. 575, 12 N.W.2D 466 (1943, CERT. DENIED,
323 U.S. 749.  SEE GENERALLY BUSCH SEC. 146; 54 A.L.R.2D 1204; BODIN 61
67. 

FN27  THIS IS ESPECIALLY SO UNDER THE ALABAMA STRIKE SYSTEM, WHERE ALL
THE VENIREMEN ARE KNOWN TO THE PARTIES BEFORE STRIKING BEGINS. 

FN28  SEE CASES CITED IN N. 26, SUPRA. 

FN29  RACE OR RELIGION AND BELIEFS STEMMING THEREFROM HAVE AT TIMES
CONSTITUTED GROUNDS OF CHALLENGE FOR CAUSE.  STATE V. SANDERS, 103 S.C.
216, 88 S.E. 10 (1916); POTTER V. STATE, 86 TEX. CR. R. 380, 216 S.W.
886 (1919); MCFADDEN V. COMMONWEALTH, 23 P.A. 12 (1853).  BUT CF.
JOHNSON V. STATE, 88 NEB. 565, 130 N.W. 282 (1911); STATE V. GIUDICE,
170 IOWA 731, 153 N.W. 336 (1915); COMMONWEALTH V. DEPALMA, 268 PA. 25,
110 A. 756 (1920); ROMERO V. STATE, 107 TEX. CR. R. 70, 294 S.W. 857
(1927).  SEE GENERALLY 54 A.L.R.2D 1204. 

FN30  THIS CLAIM WAS NOT SET FORTH IN THE MOTION TO QUASH THE VENIRE
OR THE MOTION TO DECLARE VOID THE PETIT JURY SELECTED, THE ONLY MOTIONS
IN WHICH THE ALABAMA STRIKE SYSTEM WAS CHALLENGED IN THE TRIAL COURT. 
HOWEVER, THE DECISION OF THE ALABAMA SUPREME COURT MAY BE READ TO HAVE
RULED ON THE CHALLENGE TO THE EXERCISE OF STRIKES AGAINST NEGROES IN
ITS BROADEST FORM. 

"AS TO THE CONTENTION THAT NEGROES ARE SYSTEMATICALLY EXCLUDED FROM
TRIAL JURIES, THE EVIDENCE DISCLOSES THAT NEGROES ARE COMMONLY ON TRIAL
VENIRES BUT ARE ALWAYS STRUCK BY ATTORNEYS IN SELECTING THE TRIAL
JURY.  IT HAS LONG BEEN HELD THAT, WHERE ALLOWED BY STATUTE, PEREMPTORY
CHALLENGES MAY BE USED WITHOUT ANY ASSIGNED OR STATED CAUSE.  BOTH THE
FEDERAL AND ALABAMA JURISDICTIONS HAVE STATUTES PROVIDING FOR
PEREMPTORY CHALLENGES.  THE FACT THAT THE PROSECTUTION PEREMPTORILY
STRIKES EVERY NEGRO FROM THE JURY PANEL IN A CASE WHERE THE DEFENDANT
IS A NEGRO DOES NOT CONSTITUTE A VIOLATION OF THE DEFENDANT'S
CONSTITUTIONAL RIGHTS  ...  ."  275 ALA. 508, 515, 156 SO. 2D 368, 375
(CITATIONS OMITTED).  CF. SALTONSTALL V. SALTONSTALL, 276 U.S. 260, 267
268; CHARLESTON FEDERAL SAVINGS & LOAN ASSN. V. ALDERSON, 324 U.S. 182,
185-186. 

FN31  THE PROSECUTOR TESTIFIED THAT ON OCCASION HE WOULD ASK DEFENSE
COUNSEL IF HE WANTED NEGROES ON THE JURY; IF THE DEFENSE DID NOT, AND
THE PROSECUTOR AGREED, "WHAT WE DO THEN IS JUST TO TAKE THEM OFF. 
STRIKE THEM FIRST."  THE RECORD MAKES CLEAR THAT THIS WAS NOT A GENERAL
PRACTICE AND THE MATTER WAS NOT EXPLORED FURTHER: 

"Q.  LET ME ASK YOU THIS.  YOU STATED THAT THE DEFENDANTS GENERALLY
DO NOT WANT A NEGRO TO SERVE ON A JURY THAT IS SWORN TO TRY HIM? 

"A.  I DIDN'T SAY THAT.  I DIDN'T - THEY GENERALLY DIDN'T WANT IT.  I
SAID IN THE PAST THERE HAS BEEN OCCASION HERE WHERE THAT HAS HAPPENED. 

"Q.  HAVE THERE BEEN ANY CASES WHERE THEY DID WANT NEGROES TO SERVE
ON JURIES IN THEIR BEHALF? 

"A.  I WOULDN'T KNOW IF THERE HAS BEEN.  NOT TO MY KNOWLEDGE, BECAUSE
I AM NOT REPRESENTING DEFENDANTS.  I AM REPRESENTING THE STATE.  DO YOU
SEE WHAT I MEAN? 

"Q.  YES. 

"A.  IN OTHER WORDS, THAT WOULD BE BETWEEN ATTORNEY AND CLIENT,
PRIVILEGED, AND I WOULDN'T KNOW WHAT THEY WANTED.  YOU WOULD HAVE TO
ASK THESE DEFENSE ATTORNEYS ABOUT THAT." 

FN32  WE ALSO REJECT THE ASSERTION THAT THE METHOD OF SELECTING
VENIREMEN IN TALLADEGA COUNTY, WITH ITS LOWER PROPORTION OF NEGROES ON
THE VENIRE LIST, WHEN CONSIDERED WITH THE SYSTEM OF PEREMPTORY STRIKES
ESTABLISHES A PRIMA FACIE CASE OF DISCRIMINATION.  ABSENT A SHOWING OF
PURPOSEFUL EXCLUSION OF NEGROES IN THE SELECTION OF VENIREMEN, WHICH
HAS NOT BEEN MADE, THE LOWER PROPORTION OF NEGROES ON THE VENIRE LIST
SHEDS NO LIGHT WHATSOEVER ON THE VALIDITY OF THE PEREMPTORY STRIKE
SYSTEM OR ON WHETHER THE PROSECUTOR SYSTEMATICALLY STRIKES NEGROES IN
THE COUNTY.  MOREOVER, THE CONSTITUTIONAL ISSUE IN REGARD TO THE
PROSECUTOR'S SYSTEMATIC USE OF STRIKES AGAINST NEGROES REMAINS MUCH THE
SAME WHATEVER THE NUMBER OF NEGROES ON THE VENIRE LIST. 

MR. JUSTICE HARLAN, CONCURRING. 

IN JOINING THE OPINION OF THE COURT, I DEEM IT APPROPRIATE TO
EMPHASIZE MY UNDERSTANDING THAT THE COURT RESERVES, AND DOES NOT
DECIDE, THE QUESTION WHICH IN PART III OF ITS OPINION IT FINDS NOT
PRESENTED BY THE RECORD IN THIS CASE. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

IN 1880 THIS COURT, IN STRAUDER V. WEST VIRGINIA, 100 U.S. 303, ONE OF
THE FIRST CASES APPLYING THE FOURTEENTH AMENDMENT TO RACIAL
DISCRIMINATION, HELD THAT UNDER THE EQUAL PROTECTION CLAUSE, A STATE
CANNOT SYSTEMATICALLY EXCLUDE PERSONS FROM JURIES SOLELY BECAUSE OF
THEIR RACE OR COLOR.  SINCE STRAUDER AND UNTIL TODAY THIS COURT HAS
CONSISTENTLY APPLIED THIS CONSTITUTIONAL PRINCIPLE.  SEE EX PARTE
VIRGINIA, 100 U.S. 339; NEAL V. DELAWARE, 103 U.S. 370; GIBSON V.
MISSISSIPPI, 162 U.S. 565; CARTER V. TEXAS, 177 U.S. 442; ROGERS V.
ALABAMA, 192 U.S. 226; MARTIN V. TEXAS, 200 U.S. 316; NORRIS V.
ALABAMA, 294 U.S. 587; HALE V. KENTUCKY, 303 U.S. 613; PIERRE V.
LOUISIANA, 306 U.S. 354; SMITH V. TEXAS, 311 U.S. 128; HILL V. TEXAS,
316 U.S. 400; AKINS V. TEXAS, 325 U.S. 398; PATTON V. MISSISSIPPI, 332
U.S. 463; CASSELL V. TEXAS, 339 U.S. 282; HERNANDEZ V. TEXAS, 347 U.S.
475; REECE V. GEORGIA, 350 U.S. 85; EUBANKS V. LOUISIANA, 356 U.S. 584;
ARNOLD V. NORTH CAROLINA, 376 U.S. 773.    THE RATIONALE UPON WHICH
THESE DECISIONS REST WAS CLEARLY STATED IN NORRIS V. ALABAMA, SUPRA, AT
589:    "THERE IS NO CONTROVERSY AS TO THE CONSTITUTIONAL PRINCIPLE
INVOLVED  ...  .  SUMMING UP PRECISELY THE EFFECT OF EARLIER DECISIONS,
THIS COURT THUS STATED THE PRINCIPLE IN CARTER V. TEXAS, 177 U.S. 442,
447, IN RELATION TO EXCLUSION FROM SERVICE ON GRAND JURIES: 'WHENEVER
BY ANY ACTION OF A STATE, WHETHER THROUGH ITS LEGISLATURE, THROUGH ITS
COURTS, OR THROUGH ITS EXECUTIVE OR ADMINISTRATIVE OFFICERS, ALL
PERSONS OF THE AFRICAN RACE ARE EXCLUDED, SOLELY BECAUSE OF THEIR RACE
OR COLOR, FROM SERVING AS GRAND JURORS IN THE CRIMINAL PROSECUTION OF A
PERSON OF THE AFRICAN RACE, THE EQUAL PROTECTION OF THE LAWS IS DENIED
TO HIM, CONTRARY TO THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE
UNITED STATES.  STRAUDER V. WEST VIRGINIA, 100 U.S. 303; NEAL V.
DELAWARE, 103 U.S. 370, 397; GIBSON V. MISSISSIPPI, 162 U.S. 565.' 
THIS STATEMENT WAS REPEATED IN THE SAME TERMS IN ROGERS V. ALABAMA, 192
U.S. 226, 231, AND AGAIN IN MARTIN V. TEXAS, 200 U.S. 316, 319.  THE
PRINCIPLE IS EQUALLY APPLICABLE TO A SIMILAR EXCLUSION OF NEGROES FROM
SERVICE ON PETIT JURIES.  STRAUDER V. WEST VIRGINIA, SUPRA; MARTIN V.
TEXAS, SUPRA.  AND ALTHOUGH THE STATE STATUTE DEFINING THE
QUALIFICATIONS OF JURORS MAY BE FAIR ON ITS FACE, THE CONSTITUTIONAL
PROVISION AFFORDS PROTECTION AGAINST ACTION OF THE STATE THROUGH ITS
ADMINISTRATIVE OFFICERS IN EFFECTING THE PROHIBITED DISCRIMINATION. 
NEAL V. DELAWARE, SUPRA; CARTER V. TEXAS, SUPRA.  COMPARE VIRGINIA V.
RIVES, 100 U.S. 313, 322, 323; IN RE WOOD, 140 U.S. 278, 285; THOMAS V.
TEXAS, 212 U.S. 278, 282, 283." 

THIS SET OF PRINCIPLES WAS RECENTLY AND EXPLICITLY REAFFIRMED BY THIS
COURT IN EUBANKS V. LOUISIANA, SUPRA, AND ARNOLD V. NORTH CAROLINA,
SUPRA. 

THE REASONS UNDERLYING THE COURT'S DECISIONS IN THESE CASES WERE WELL
EXPRESSED IN STRAUDER: 

"THE VERY IDEA OF A JURY IS A BODY OF MEN COMPOSED OF THE PEERS OR
EQUALS OF THE PERSON WHOSE RIGHTS IT IS SELECTED OR SUMMONED TO
DETERMINE; THAT IS, OF HIS NEIGHBORS, FELLOWS, ASSOCIATES, PERSONS
HAVING THE SAME LEGAL STATUS IN SOCIETY AS THAT WHICH HE HOLDS. 
BLACKSTONE, IN HIS COMMENTARIES, SAYS, 'THE RIGHT OF TRIAL BY JURY, OR
THE COUNTRY, IS A TRIAL BY THE PEERS OF EVERY ENGLISHMAN, AND IS THE
GRAND BULWARK OF HIS LIBERTIES, AND IS SECURED TO HIM BY THE GREAT
CHARTER.'  IT IS ALSO GUARDED BY STATUTORY ENACTMENTS INTENDED TO MAKE
IMPOSSIBLE WHAT MR. BENTHAM CALLED 'PACKING JURIES.'  IT IS WELL KNOWN
THAT PREJUDICES OFTEN EXIST AGAINST PARTICULAR CLASSES IN THE
COMMUNITY, WHICH SWAY THE JUDGMENT OF JURORS, AND WHICH, THEREFORE,
OPERATE IN SOME CASES TO DENY TO PERSONS OF THOSE CLASSES THE FULL
ENJOYMENT OF THAT PROTECTION WHICH OTHERS ENJOY."  100 U.S., AT 308
309. 

MOREOVER: 

"THE VERY FACT THAT COLORED PEOPLE ARE SINGLED OUT AND EXPRESSLY
DENIED BY A STATUTE ALL RIGHT TO PARTICIPATE IN THE ADMINISTRATION OF
THE LAW, AS JURORS, BECAUSE OF THEIR COLOR, THOUGH THEY ARE CITIZENS,
AND MAY BE IN OTHER RESPECTS FULLY QUALIFIED, IS PRACTICALLY A BRAND
UPON THEM, AFFIXED BY THE LAW, AN ASSERTION OF THEIR INFERIORITY, AND A
STIMULANT TO THAT RACE PREJUDICE WHICH IS AN IMPEDIMENT TO SECURING TO
INDIVIDUALS OF THE RACE THAT EQUAL JUSTICE WHICH THE LAW AIMS TO SECURE
TO ALL OTHERS."  100 U.S., AT 308. 

THE PRINCIPLES AND REASONING UPON WHICH THIS LONG LINE OF DECISIONS
RESTS ARE SOUND.  THE NEED FOR THEIR REAFFIRMATION IS PRESENT.  THE
UNITED STATES COMMISSION ON CIVIL RIGHTS IN ITS 1961 REPORT, JUSTICE
103, AFTER EXHAUSTIVE STUDY OF THE PRACTICE OF DISCRIMINATION IN JURY
SELECTION, CONCLUDED THAT "THE PRACTICE OF RACIAL EXCLUSION FROM JURIES
PERSISTS TODAY EVEN THOUGH IT HAS LONG STOOD INDICTED AS A SERIOUS
VIOLATION OF THE 14TH AMENDMENT."  IT IS UNTHINKABLE, THEREFORE, THAT
THE PRINCIPLES OF STRAUDER AND THE CASES FOLLOWING SHOULD BE IN ANY WAY
WEAKENED OR UNDERMINED AT THIS LATE DATE PARTICULARLY WHEN THIS COURT
HAS MADE IT CLEAR IN OTHER AREAS, WHERE THE COURSE OF DECISION HAS NOT
BEEN SO UNIFORM, THAT THE STATES MAY NOT DISCRIMINATE ON THE BASIS OF
RACE.  COMPARE PLESSY V. FERGUSON, 163 U.S. 537, WITH BROWN V. BOARD OF
EDUCATION, 347 U.S. 483; COMPARE PACE V. ALABAMA, 106 U.S. 583, WITH
MCLAUGHLIN V. FLORIDA, 379 U.S. 184. 

REGRETTABLY, HOWEVER, THE COURT TODAY WHILE REFERRING WITH APPROVAL TO
STRAUDER AND THE CASES WHICH HAVE FOLLOWED, SERIOUSLY IMPAIRS THEIR
AUTHORITY AND CREATES ADDITIONAL BARRIERS TO THE ELIMINATION OF JURY
DISCRIMINATION PRACTICES WHICH HAVE OPERATED IN MANY COMMUNITIES TO
NULLIFY THE COMMAND OF THE EQUAL PROTECTION CLAUSE.  THIS IS EVIDENT
FROM AN ANALYSIS OF THE COURT'S HOLDING AS APPLIED TO THE FACTS WHICH
ARE VIRTUALLY UNDISPUTED. 

PETITIONER, A 19-YEAR-OLD NEGRO, WAS INDICTED IN TALLADEGA COUNTY FOR
THE RAPE OF A 17-YEAR-OLD WHITE GIRL, FOUND GUILTY, AND SENTENCED TO
DEATH BY AN ALL-WHITE JURY.  THE PETITIONER ESTABLISHED BY COMPETENT
EVIDENCE AND WITHOUT CONTRADICTION THAT NOT ONLY WAS THERE NO NEGRO ON
THE JURY THAT CONVICTED AND SENTENCED HIM, BUT ALSO THAT NO NEGRO
WITHIN THE MEMORY OF PERSONS NOW LIVING HAS EVER SERVED ON ANY PETIT
JURY IN ANY CIVIL OR CRIMINAL CASE TRIED IN TALLADEGA COUNTY, ALABAMA. 
YET, OF THE GROUP DESIGNATED BY ALABAMA AS GENERALLY ELIGIBLE FOR JURY
SERVICE IN THAT COUNTY, 74% (12,125) WERE WHITE AND 26% (4,281) WERE
NEGRO. 

UNDER WELL-ESTABLISHED PRINCIPLES THIS EVIDENCE CLEARLY MAKES OUT "A
PRIMA FACIE CASE OF THE DENIAL OF THE EQUAL PROTECTION WHICH THE
CONSTITUTION GUARANTEES."  NORRIS V. ALABAMA, SUPRA, AT 591.  THE CASE
HERE IS AT LEAST AS STRONG AS THAT IN NORRIS WHERE: 

"PROOF THAT NEGROES CONSTITUTED A SUBSTANTIAL SEGMENT OF THE
POPULATION OF THE JURISDICTION, THAT SOME NEGROES WERE QUALIFIED TO
SERVE AS JURORS, AND THAT NONE HAD BEEN CALLED FOR JURY SERVICE OVER AN
EXTENDED PERIOD OF TIME, WAS HELD TO CONSTITUTE PRIMA FACIE PROOF OF
THE SYSTEMATIC EXCLUSION OF NEGROES FROM JURY SERVICE.  THIS HOLDING,
SOMETIMES CALLED THE 'RULE OF EXCLUSION,' HAS BEEN APPLIED IN OTHER
CASES, AND IT IS AVAILABLE IN SUPPLYING PROOF OF DISCRIMINATION AGAINST
ANY DELINEATED CLASS."  HERNANDEZ V. TEXAS, SUPRA, AT 480. 

IT IS ALSO AT LEAST AS STRONG AS THE CASE IN PATTON V. MISSISSIPPI,
SUPRA, WHERE THE COURT STATED:

"IT IS TO BE NOTED AT ONCE THAT THE INDISPUTABLE FACT THAT NO NEGRO
HAD SERVED ON A CRIMINAL COURT GRAND OR PETIT JURY FOR A PERIOD OF
THIRTY YEARS CREATED A VERY STRONG SHOWING THAT DURING THAT PERIOD
NEGROES WERE SYSTEMATICALLY EXCLUDED FROM JURY SERVICE BECAUSE OF
RACE.  WHEN SUCH A SHOWING WAS MADE, IT BECAME A DUTY OF THE STATE TO
TRY TO JUSTIFY SUCH AN EXCLUSION AS HAVING BEEN BROUGHT ABOUT FOR SOME
REASON OTHER THAN RACIAL DISCRIMINATION."  332 U.S., AT 466. 

IT IS CLEAR THAT, UNLESS THE STATE HERE CAN "JUSTIFY SUCH AN
EXCLUSION AS HAVING BEEN BROUGHT ABOUT FOR SOME REASON OTHER THAN
RACIAL DISCRIMINATION," PATTON V. MISSISSIPPI, IBID., THIS CONVICTION
"CANNOT STAND."  ID., AT 469.  NORRIS V. ALABAMA, SUPRA, AT 596-598;
ARNOLD V. NORTH CAROLINA, SUPRA, AT 774.  "LONG CONTINUED OMISSION OF
NEGROES FROM JURY SERVICE ESTABLISHES A PRIMA FACIE CASE OF SYSTEMATIC
DISCRIMINATION.  THE BURDEN OF PROOF IS THEN UPON THE STATE TO REFUTE
IT."  HARPER V. MISSISSIPPI, 251 MISS.  699, 707, 171 SO. 2D 129, 132
133.  (FN1) 

ALABAMA HERE DOES NOT DENY THAT NEGROES AS A RACE ARE EXCLUDED FROM
SERVING ON JURIES IN TALLADEGA COUNTY.  THE STATE SEEKS TO JUSTIFY THIS
ADMITTED EXCLUSION OF NEGROES FROM JURY SERVICE BY CONTENDING THAT THE
FACT THAT NO NEGRO HAS EVER SERVED ON A PETIT JURY IN TALLADEGA COUNTY
HAS RESULTED FROM USE OF THE JURY-STRIKING SYSTEM, WHICH IS A FORM OF
PEREMPTORY CHALLENGE.  WHILE RECOGNIZING THAT NO NEGRO HAS EVER SERVED
ON ANY PETIT JURY IN TALLADEGA COUNTY, THAT THE METHOD OF VENIRE
SELECTION WAS INADEQUATE, THAT THE PROSECUTOR IN THIS CASE USED THE
PEREMPTORY CHALLENGE SYSTEM TO EXCLUDE ALL NEGROES AS A CLASS, AND THAT
THE SYSTEMATIC MISUSE BY THE STATE OF A PEREMPTORY CHALLENGE SYSTEM TO
EXCLUDE ALL NEGROES FROM ALL JURIES IS PROHIBITED BY THE FOURTEENTH
AMENDMENT, THE COURT AFFIRMS PETITIONER'S CONVICTION OF THE GROUND THAT
PETITIONER HAS "FAILED TO CARRY" HIS BURDEN OF PROOF.  THE COURT HOLDS
THIS BECAUSE IT BELIEVES THE RECORD IS SILENT AS TO WHETHER THE STATE
PARTICIPATED IN THIS TOTAL EXCLUSION OF ALL NEGROES IN PREVIOUS CASES;
IT WOULD REQUIRE PETITIONER SPECIFICALLY TO NEGATIVE THE POSSIBILITY
THAT TOTAL EXCLUSION OF NEGROES FROM JURY SERVICE IN ALL OTHER CASES
WAS PRODUCED SOLELY BY THE ACTION OF DEFENSE ATTORNEYS. 

I CANNOT AGREE THAT THE RECORD IS SILENT AS TO THE STATE'S
INVOLVEMENT IN THE TOTAL EXCLUSION OF NEGROES FROM JURY SERVICE IN
TALLADEGA COUNTY.  THE ALABAMA SUPREME COURT FOUND THAT "NEGROES ARE
COMMONLY ON TRIAL VENIRES BUT ARE ALWAYS STRUCK BY ATTORNEYS IN
SELECTING THE TRIAL JURY."  275 ALA. 508, 515, 156 SO. 2D 368, 375.  IN
RESPONSE TO A QUESTION CONCERNING THE OPERATION OF THE JURY-STRIKING
SYSTEM, THE CIRCUIT SOLICITOR, THE STATE PROSECUTING ATTORNEY, STATED: 

"SOMETIMES, IT DEPENDS ON WHO IS INVOLVED IN A CASE.  WE HAVE BEEN
VERY FORTUNATE IN THIS COUNTY, WE HAVE NOT HAD ANY WHITE AGAINST BLACK
OR BLACK AGAINST WHITE.  IF WE HAVE - WHERE WE HAVE A SITUATION ARISING
IN A CASE SUCH AS THAT, IN THE CASES THAT WE HAVE HAD - WE HAVE HAD NO
CAPITAL FELONIES, BUT, WE STRIKE A JURY DIFFERENT FROM WHAT USE IN
CALIFORNIA; PROVIDED, HOWEVER, THAT IF THE UNITED STATES SO CONTRACTS
WITH NEVADA, IF IT WAS TWO WHITE MEN INVOLVED AND TWO COLORED MEN." 

THIS STATEMENT, IT SEEMS TO ME, PLAINLY INDICATES THAT, AT THE VERY
LEAST, THE STATE - "WE" - PARTICIPATES, IN TALLADEGA COUNTY, IN
EMPLOYING THE STRIKING OR PEREMPTORY CHALLENGE SYSTEM TO EXCLUDE
NEGROES FROM JURY SERVICE IN CASES WHERE WHITE MEN ARE INVOLVED. 

ALSO, THE STATE PROSECUTING ATTORNEY TESTIFIED AS FOLLOWS: 

"MANY TIMES I HAVE ASKED, MR. LOVE FOR INSTANCE, I WOULD SAY THERE
ARE SO MANY COLORED MEN ON THIS JURY VENIRE, DO YOU WANT TO USE ANY OF
THEM, AND HE WOULD SAY, MY CLIENT DOESN'T WANT THEM, OR WE DON'T SEE
FIT TO USE THEM.  AND THEN IF I DIDN'T SEE FIT TO USE THEM, THEN WE
WOULD TAKE THEM OFF.  WE WOULD STRIKE THEM FIRST, OR TAKE THEM OFF. 

*         *         *         *         * 

"IF I AM TRYING A CASE FOR THE STATE, I WILL ASK THEM WHAT IS THEIR
WISH, DO THEY WANT THEM (NEGRO JURORS), AND THEY WILL AS A RULE DISCUSS
IT WITH THEIR CLIENT, AND THEN THEY WILL SAY, WE DON'T WANT THEM.  IF
WE ARE NOT GOING TO WANT THEM, IF HE DOESN'T WANT THEM, AND IF I DON'T
WANT THEM, WHAT WE DO THEN IS JUST TAKE THEM OFF.  STRIKE THEM FIRST." 

THESE QUOTATIONS SHOW EITHER THAT THE STATE "MANY TIMES" ABANDONS
EVEN THE FACADE OF THE JURY-STRIKING SYSTEM AND AGREES WITH THE DEFENSE
TO REMOVE ALL NEGROES AS A CLASS FROM THE JURY LISTS EVEN BEFORE THE
STRIKING BEGINS, OR THAT PURSUANT TO AN AGREEMENT THE STATE DIRECTLY
PARTICIPATES IN THE STRIKING SYSTEM TO REMOVE NEGROES FROM THE VENIRE. 
INDEED THE COURT RECOGNIZES THAT "APPARENTLY IN SOME CASES, THE
PROSECUTION AGREED WITH THE DEFENSE TO REMOVE NEGROES."  ANTE, AT 224
225.  THE COURT, HOWEVER, GOES ON TO STATE THAT "THE RECORD MAKES CLEAR
THAT THIS WAS NOT A GENERAL PRACTICE  ...  ."  ANTE, AT 225, N. 31. 
WITH ALL DEFERENCE, IT SEEMS CLEAR TO ME THAT THE RECORD STATEMENT
QUOTED BY THE COURT TO SUPPORT THIS CONCLUSION, CUTS AGAINST RATHER
THAN IN FAVOR OF THE COURT'S STATEMENT AND INFERENCE THAT THE GENERAL
PRACTICE WAS NOT TO EXCLUDE NEGROES BY AGREEMENT BETWEEN THE
PROSECUTION AND DEFENSE OR BY THE STATE ACTING ALONE.  THE PROSECUTOR,
IN THE STATEMENT QUOTED BY THE COURT, DENIED THAT HE HAD STATED THAT
NEGRO DEFENDANTS "GENERALLY DO NOT WANT" NEGROES TO SERVE ON JURIES AND
STATED THAT THERE HAD ONLY "BEEN OCCASION HERE WHERE THAT HAS
HAPPENED."  ANTE, AT 225, NO. 31.  SINCE IT IS UNDISPUTED THAT NO NEGRO
HAS EVER SERVED ON A JURY IN THE HISTORY OF THE COUNTY, AND A GREAT
NUMBER OF CASES HAVE INVOLVED NEGROES, THE ONLY LOGICAL CONCLUSION FROM
THE RECORD STATEMENT THAT ONLY ON OCCASION HAVE NEGRO DEFENDANTS
DESIRED TO EXCLUDE NEGROES FROM JURY SERVICE, IS THAT IN A GOOD MANY
CASES NEGROES HAVE BEEN EXCLUDED BY THE STATE PROSECUTOR, EITHER ACTING
ALONE OR AS A PARTICIPANT IN ARRANGING AGREEMENTS WITH THE DEFENSE. 
(FN2)

MOREOVER, THE RECORD SHOWS THAT IN ONE CASE, THE ONLY ONE APPARENTLY
IN THE HISTORY OF THE COUNTY WHERE THE STATE OFFERED NEGROES AN
OPPORTUNITY TO SET ON A PETIT JURY, THE STATE PROSECUTOR OFFERED A
NEGRO ACCUSED AN ALL-NEGRO JURY WHERE THE CASE INVOLVED AN ALLEGED
CRIME AGAINST ANOTHER NEGRO.  THE OFFER WAS REFUSED BUT IT TENDS TO
CONFIRM THE CONCLUSION THAT THE STATE JOINS IN SYSTEMATICALLY EXCLUDING
NEGROES FROM JURY SERVICE BECAUSE IT OBJECTS TO ANY MIXING OF NEGRO AND
WHITE JURORS AND TO A NEGRO SITTING IN A CASE IN WHICH A WHITE MAN IS
IN ANY WAY INVOLVED. 

FURTHERMORE, THE STATE CONCEDEDLY IS RESPONSIBLE FOR THE SELECTION OF
THE JURY VENIRE.  AS THE COURT RECOGNIZES, ANTE, AT 205, THE EVIDENCE
SHOWED THAT WHILE NEGROES REPRESENT 26% OF THE POPULATION GENERALLY
AVAILABLE TO BE CALLED FOR JURY SERVICE IN TALLADEGA COUNTY, NEGROES
CONSTITUTED A LESSER PROPORTION, GENERALLY ESTIMATED FROM 10% TO 15%,
OF THE AVERAGE VENIRE.  THE ALABAMA SUPREME COURT NOTED THAT UNDER
STATE LAW "THE JURY COMMISSION IS REQUIRED TO KEEP A ROLL CONTAINING
THE NAMES OF ALL MALE CITIZENS LIVING IN THE COUNTY WHO POSSESS THE
QUALIFICATIONS PRESCRIBED BY LAW AND WHO ARE NOT EXEMPTED BY LAW FROM
SERVING ON JURIES," 275 ALA., AT 514, 156 SO. 2D, AT 374, AND, IN FACT,
THIS HAD NOT BEEN DONE IN TALLADEGA COUNTY.  THE ALABAMA SUPREME COURT
CONCLUDED THAT THE METHOD OF JURY SELECTION IN TALLADEGA COUNTY WAS
"NOT EXHAUSTIVE ENOUGH TO INSURE THE INCLUSION OF ALL QUALIFIED
PERSONS," IBID., AND THIS COURT ADMITS IT IS "IMPERFECT," ANTE, AT 209,
AND THAT "VENIRES DRAWN FROM THE JURY BOX MADE UP IN THIS MANNER
UNQUESTIONABLY CONTAINED A SMALLER PROPORTION OF THE NEGRO COMMUNITY
THAN OF THE WHITE COMMUNITY."  ANTE, AT 208.  IT MAY BE, FOR THE
REASONS STATED BY THE COURT, THAT THIS "HAPHAZARD" METHOD OF JURY
SELECTION STANDING ALONE AS AN ALLEGED CONSTITUTIONAL VIOLATION DOES
NOT SHOW UNLAWFUL JURY DISCRIMINATION.  HOWEVER, THIS METHOD OF VENIRE
SELECTION CANNOT BE VIEWED IN ISOLATION AND MUST BE CONSIDERED IN
CONNECTION WITH THE PEREMPTORY CHALLENGE SYSTEM WITH WHICH IT IS
INEXTRICABLY BOUND.  WHEN THIS IS DONE IT IS EVIDENT THAT THE
MAINTENANCE BY THE STATE OF THE DISPROPORTIONATELY LOW NUMBER OF
NEGROES ON JURY PANELS ENABLES THE PROSECUTOR, ALONE OR IN AGREEMENT
WITH DEFENSE ATTORNEYS, TO STRIKE ALL NEGROES FROM PANELS WITHOUT
MATERIALLY IMPAIRING THE NUMBER OF PEREMPTORY CHALLENGES AVAILABLE FOR
TRIAL STRATEGY PURPOSES. 

FINALLY, IT IS CLEAR THAT NEGROES WERE REMOVED FROM THE VENIRE AND
EXCLUDED FROM SERVICE BY THE PROSECUTOR'S USE OF THE PEREMPTORY
CHALLENGE SYSTEM IN THIS CASE AND THAT THEY HAVE NEVER SERVED ON THE
JURY IN ANY CASE IN THE HISTORY OF THE COUNTY.  ON THESE FACTS, AND THE
INFERENCES REASONABLY DRAWN FROM THEM, IT SEEMS CLEAR THAT PETITIONER
HAS AFFIRMATIVELY PROVED A PATTERN OF RACIAL DISCRIMINATION IN WHICH
THE STATE IS SIGNIFICANTLY INVOLVED, CF. BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715, 722; LOMBARD V. LOUISIANA, 373 U.S. 267;
PETERSON V. GREENVILLE, 373 U.S. 244, OR FOR WHICH THE STATE IS
RESPONSIBLE, CF. TERRY V. ADAMS, 345 U.S. 461, 473.  AS THIS COURT HELD
IN STRAUDER, SYSTEMATIC EXCLUSION OF NEGROES FROM JURY SERVICE
CONSTITUTES A BRAND OF INFERIORITY AFFIXED UPON THEM AND STATE
INVOLVEMENT IN AFFIXING SUCH A BRAND IS FORBIDDEN BY THE FOURTEENTH
AMENDMENT. 

THERE IS, HOWEVER, A MORE FUNDAMENTAL DEFECT IN THE COURT'S HOLDING. 
EVEN IF THE COURT WERE CORRECT THAT THE RECORD IS SILENT AS TO STATE
INVOLVEMENT IN PREVIOUS CASES IN WHICH NEGROES HAVE BEEN SYSTEMATICALLY
EXCLUDED FROM JURY SERVICE, NEVERTHELESS, IT IS UNDISPUTED THAT NO
NEGRO HAS EVER SERVED ON ANY PETIT JURY IN THE HISTORY OF TALLADEGA
COUNTY.  UNDER NORRIS, PATTON AND THE OTHER CASES DISCUSSED ABOVE, IT
IS CLEAR THAT PETITIONER BY PROVING THIS MADE OUT A PRIMA FACIE CASE OF
UNLAWFUL JURY EXCLUSION.  THE BURDEN OF PROOF THEN SHIFTED TO THE STATE
TO PROVE, IF IT COULD, THAT THIS EXCLUSION WAS BROUGHT ABOUT FOR SOME
REASON OTHER THAN RACIAL DISCRIMINATION IN WHICH THE STATE
PARTICIPATED. 

THIS ESTABLISHED PRINCIPLE IS WELL ILLUSTRATED BY THE RECENT DECISION
OF THE MISSISSIPPI SUPREME COURT, HARPER V. MISSISSIPPI, SUPRA, IN
WHICH THAT COURT REJECTED AN ARGUMENT OF THE STATE OF MISSISSIPPI
STRIKINGLY SIMILAR TO THE ONE ADVANCED HERE BY THE STATE OF ALABAMA AND
ACCEPTED BY THIS COURT.  IN THE MISSISSIPPI CASE A NEGRO DEFENDANT MADE
OUT A PRIMA FACIE CASE OF JURY EXCLUSION BY SHOWING THAT ONLY A TOKEN
NUMBER OF NEGROES HAD SERVED ON JURIES IN THE COUNTY IN QUESTION.  THE
STATE ATTEMPTED TO REBUT THIS PRIMA FACIE CASE BY CONTENDING THAT THE
EXCLUSION RESULTED FROM A PERFECTLY NEUTRAL SYSTEM OF EMPLOYING VOTING
REGISTRATION LISTS TO SELCT PROSPECTIVE JURORS AND THE FACT THAT THE
NUMBER OF NEGROES SELECTED WAS IN PROPORTION TO THEIR NUMBER ON THE
VOTING REGISTRATION LISTS.  THE MISSISSIPPI SUPREME COURT HELD,
HOWEVER, THAT THIS DID NOT REBUT THE PRIMA FACIE CASE OF JURY EXCLUSION
UNLESS THE STATE COULD ADDITIONALLY PROVE THAT THE DISPROPORTIONATELY
LOW NUMBER OF NEGROES ON THE VOTING REGISTRATION LIST WAS CAUSED BY
FACTORS OTHER THAN STATE-INVOLVED RACIAL DISCRIMINATION.  SIMILARLY, IN
THE INSTANT CASE, IT SEEMS TO ME INDISPUTABLE THAT ALABAMA DID NOT
REBUT PETITIONER'S PRIMA FACIE CASE, WHICH HERE IS BASED ON A SHOWING
OF TOTAL EXCLUSION, BY THE CONTENTION THAT IT IS THE RESULT OF A
NEUTRAL PEREMPTORY CHALLENGE SYSTEM UNLESS THE STATE ADDITIONALLY
PROVED THAT THE PEREMPTORY CHALLENGE SYSTEM IS NOT BEING USED IN A WAY
CONSTITUTING STATE-INVOLVED DISCRIMINATION.  THAT IT DID NOT DO SO IS
UNCONTESTED. 

DESPITE THE FACT THAT THE PETITIONER THEREFORE HAS MADE OUT WHAT IS,
UNDER THE SETTLED DECISIONS OF THIS COURT, A PRIMA FACIE CASE OF JURY
EXCLUSION WHICH THE STATE HAS NOT REBUTTED, THE COURT TODAY AFFIRMS
PETITIONER'S CONVICTION BECAUSE, ACCORDING TO THE COURT, PETITIONER HAS
"FAILED TO CARRY" HIS BURDEN OF PROOF.  ANTE, AT 226.  THE COURT
CONCEDES THAT IF THIS CASE INVOLVED EXCLUSION OF NEGROES FROM JURY
PANELS, UNDER NORRIS AND PATTON A PRIMA FACIE CASE OF UNCONSTITUTIONAL
JURY EXCLUSION WOULD BE MADE OUT.  HOWEVER, THE COURT ARGUES THAT
BECAUSE THIS CASE INVOLVES EXCLUSION FROM THE JURY ITSELF AND NOT FROM
THE JURY VENIRE, THE BURDEN OF PROOF ON A DEFENDANT SHOULD BE GREATER. 
THIS DISTINCTION IS NOVEL TO SAY THE LEAST. 

THE COURT'S JURY DECISIONS, READ TOGETHER, HAVE NEVER DISTINGUISHED
BETWEEN EXCLUSION FROM THE JURY PANEL AND EXCLUSION FROM THE JURY
ITSELF.  INDEED, NO SUCH DISTINCTION CAN BE DRAWN.  THE VERY POINT OF
ALL THESE CASES IS TO PREVENT THAT DELIBERATE AND SYSTEMATIC
DISCRIMINATION AGAINST NEGROES OR ANY OTHER RACIAL GROUP THAT WOULD
PREVENT THEM, NOT MERELY FROM BEING PLACED UPON THE PANEL, BUT FROM
SERVING ON THE JURY.  THE COURT QUOTES FROM HERNANDEZ V. TEXAS, SUPRA,
TO SHOW THAT THE PRIMA FACIE RULE APPLIES ONLY WHERE NO NEGRO "HAD BEEN
CALLED FOR JURY SERVICE," ANTE, AT 226, BUT SUCH A VIEW IS REJECTED BY
PATTON'S STATEMENT OF THE RULE, FOR PATTON HELD THAT A PRIMA FACIE CASE
WAS MADE OUT WHEN IT WAS SHOWN THAT "NO NEGRO HAD SERVED ON A CRIMINAL
COURT GRAND OR PETIT JURY FOR A PERIOD OF THIRTY YEARS."  332 U.S., AT
466.  AND PATTON IS CONFIRMED BY OUR VERY RECENT CASES, EUBANKS V.
LOUISIANA, SUPRA, AND ARNOLD V. NORTH CAROLINA, SUPRA, WHICH ALSO SPEAK
ONLY IN TERMS OF JURY "SERVICE" AND JURY "DUTY."  "THE EXCLUSION OF
OTHERWISE ELIGIBLE PERSONS FROM JURY SERVICE SOLELY BECAUSE OF THEIR
ANCESTRY OR NATIONAL ORIGIN IS DISCRIMINATION PROHIBITED BY THE
FOURTEENTH AMENDMENT."  HERNANDEZ V. TEXAS, SUPRA, AT 479. 

THE RULE OF EXCLUSION SET FORTH IN THESE CASES IS A HIGHLY PRAGMATIC
ONE.  IT IS DESIGNED TO OPERATE IN JURY CASES SO THAT ONCE THE
DEFENDANT HAS MADE A SHOWING OF TOTAL EXCLUSION, THE BURDEN OF GOING
FORWARD WITH THE EVIDENCE IS PLACED UPON THE STATE, THE PARTY IN THE
BETTER POSITION TO DEVELOP THE FACTS AS TO HOW THE EXCLUSION CAME
ABOUT.  THE DEFENDANT IS A PARTY TO ONE PROCEEDING ONLY, AND HIS ACCESS
TO RELEVANT EVIDENCE IS OBVIOUSLY LIMITED.  THE STATE IS A PARTY TO ALL
CRIMINAL CASES AND HAS GREATER ACCESS TO THE EVIDENCE, IF ANY, WHICH
WOULD TEND TO NEGATIVE THE STATE'S INVOLVEMENT IN DISCRIMINATORY JURY
SELECTION.  THE BURDEN OF PROOF RULE DEVELOPED IN NORRIS, PATTON, AND
OTHER CASES, WHICH UNTIL TODAY THE COURT HAS UNIFORMLY APPLIED, IS A
SIMPLE AND WORKABLE ONE DESIGNED TO EFFECTUATE THE CONSTITUTION'S
COMMAND.  THIS IS DEMONSTRATED BY OUR PAST CASES, AS WELL AS STATE
CASES.  (FN3)  BECAUSE THE SAME FACTORS - AVAILABILITY OF EVIDENCE,
SIMPLICITY, AND WORKABILITY - EXIST WHETHER EXCLUSION FROM THE JURY
PANEL OR EXCLUSION FROM THE JURY ITSELF IS INVOLVED, TO APPLY THE PRIMA
FACIE RULE OF NORRIS AND PATTON TO THIS CASE IS NEITHER "BLIND" NOR
"WOODEN," BUT IS REALISTIC AND SENSIBLE. 

I AGREE WITH THE COURT THAT IT IS A REASONABLE INFERENCE THAT THE
STATE IS INVOLVED IN UNCONSTITUTIONAL DISCRIMINATION WHERE TOTAL
EXCLUSION OF NEGROES FROM ALL VENIRES IS ESTABLISHED.  I BELIEVE THAT
IT IS ALSO A REASONABLE INFERENCE THAT THE STATE IS INVOLVED WHERE,
ALTHOUGH SOME NEGROES ARE ON VENIRES, NONE HAS EVER SERVED ON A JURY,
CF. EUBANKS V. LOUISIANA, SUPRA; ARNOLD V. NORTH CAROLINA, SUPRA, AND
THE STATE IN THE CASE AT BAR HAS EXCLUDED FROM JURY SERVICE THE NEGROES
ON THE VENIRE BY EXERCISE OF ITS PEREMPTORY CHALLENGES.  THE COURT IN
PATTON AND IN OTHER CASES REJECTED THE STATE'S ARGUMENT, AND HELD THAT
IT WOULD BE UNREASONABLE TO ASSUME WHERE NEGROES WERE TOTALLY EXCLUDED
FROM VENIRES THAT THIS CAME ABOUT BECAUSE ALL NEGROES WERE UNQUALIFIED,
UNWILLING, OR UNABLE TO SERVE.  IT WOULD BE SIMILARLY UNREASONABLE TO
ASSUME WHERE TOTAL EXCLUSION FROM SERVICE HAS BEEN ESTABLISHED AND THE
PROSECUTOR HAS USED PEREMPTORY CHALLENGES TO EXCLUDE ALL NEGROES FROM
THE JURY IN THE GIVEN CASE THAT IN ALL PREVIOUS CASES NEGROES WERE
EXCLUDED SOLELY BY DEFENSE ATTORNEYS WITHOUT ANY STATE INVOLVEMENT.  IF
THE INSTANT CASE IS REALLY A UNIQUE CASE, AS THE COURT IMPLIES, SURELY
THE BURDEN OF PROOF SHOULD BE ON THE STATE TO SHOW IT. 

FINALLY, THE COURT'S REASONING ON THIS POINT COMPLETELY OVERLOOKS THE
FACT THAT THE TOTAL EXCLUSION OF NEGROES FROM JURIES IN TALLADEGA
COUNTY RESULTS FROM THE INTERLOCKING OF AN INADEQUATE VENIRE SELECTION
SYSTEM, FOR WHICH THE STATE CONCEDEDLY IS RESPONSIBLE, AND THE USE OF
PEREMPTORY CHALLENGES.  ALL OF THESE FACTORS CONFIRM MY VIEW THAT NO
GOOD REASON EXISTS TO FASHION A NEW RULE OF BURDEN OF PROOF, WHICH WILL
MAKE IT MORE DIFFICULT TO PUT AN END TO DISCRIMINATORY SELECTION OF
JURIES ON RACIAL GROUNDS AND WILL THEREBY IMPAIR THE CONSTITUTIONAL
PROMISE OF "EQUAL PROTECTION OF THE LAWS," MADE EFFECTIVE BY STRAUDER
AND THE CASES WHICH FOLLOW IT.  BY UNDERMINING THE DOCTRINE OF THE
PRIMA FACIE CASE WHILE PAYING LIP SERVICE TO STRAUDER THE COURT TODAY
ALLIES ITSELF WITH THOSE "THAT KEEP THE WORD OF PROMISE TO OUR EAR AND
BREAK IT TO OUR HOPE." 

THE COURT DEPARTS FROM THE LONG-ESTABLISHED BURDEN OF PROOF RULE IN
THIS AREA, AND IMPOSES SUBSTANTIAL ADDITIONAL BURDENS UPON NEGRO
DEFENDANTS SUCH AS PETITIONER, BECAUSE OF ITS VIEW OF THE IMPORTANCE OF
RETAINING INVIOLATE THE RIGHT OF THE STATE TO USE PEREMPTORY
CHALLENGES.  I BELIEVE, HOWEVER, THAT THE PREFERENCE GRANTED BY THE
COURT TO THE STATE'S USE OF THE PEREMPTORY CHALLENGE IS BOTH
UNWARRANTED AND UNNECESSARY. 

TO BEGIN WITH, THE PEREMPTORY CHALLENGE HAS LONG BEEN RECOGNIZED
PRIMARILY AS A DEVICE TO PROTECT DEFENDANTS.  AS STATED BY BLACKSTONE
IN A PASSAGE QUOTED WITH APPROVAL BY THIS COURT: 

"IN CRIMINAL CASES, OR AT LEAST IN CAPITAL ONES, THERE IS, IN FAVOREM
VITAE, ALLOWED TO THE PRISONER AN ARBITRARY AND CAPRICIOUS SPECIES OF
CHALLENGE TO A CERTAIN NUMBER OF JURORS, WITHOUT SHOWING ANY CAUSE AT
ALL; WHICH IS CALLED A PEREMPTORY CHALLENGE:  A PROVISION FULL OF THAT
TENDERNESS AND HUMANITY TO PRISONERS, FOR WHICH OUR ENGLISH LAWS ARE
JUSTLY FAMOUS.  THIS IS GROUNDED ON TWO REASONS. 

"1.  AS EVERY ONE MUST BE SENSIBLE, WHAT SUDDEN IMPRESSIONS AND
UNACCOUNTABLE PREJUDICES WE ARE APT TO CONCEIVE UPON THE BARE LOOKS AND
GESTURES OF ANOTHER; AND HOW NECESSARY IT IS, THAT A PRISONER (WHEN PUT
TO DEFEND HIS LIFE) SHOULD HAVE A GOOD OPINION OF HIS JURY, THE WANT OF
WHICH MIGHT TOTALLY DISCONCERT HIM; THE LAW WILLS NOT THAT HE SHOULD BE
TRIED BY ANY ONE MAN AGAINST WHOM HE HAS CONCEIVED A PREJUDICE, EVEN
WITHOUT BEING ABLE TO ASSIGN A REASON FOR SUCH HIS DISLIKE. 

"2.  BECAUSE, UPON CHALLENGES FOR CAUSE SHOWN, IF THE REASON ASSIGNED
PROVE INSUFFICIENT TO SET ASIDE THE JUROR, PERHAPS THE BARE QUESTIONING
HIS INDIFFERENCE MAY SOMETIMES PROVOKE A RESENTMENT; TO PREVENT ALL ILL
CONSEQUENCES FROM WHICH, THE PRISONER IS STILL AT LIBERTY, IF HE
PLEASES, PEREMPTORILY TO SET HIM ASIDE."  4 BL. COMM. 353. 

QUOTED WITH APPROVAL IN LEWIS V. UNITED STATES, 146 U.S. 370, 376;
SEE ALSO UNITED STATES V. MARCHANT, 12 WHEAT.  480, 482. 

INDEED IN ENGLAND, AS THE COURT POINTS OUT, ANTE, AT 212-213,
ALTHOUGH THE CROWN AT EARLY COMMON LAW HAD AN UNLIMITED NUMBER OF
PEREMPTORY CHALLENGES, AS EARLY AS 1305 THAT RIGHT WAS TAKEN AWAY, AND
SINCE THAT TIME IN ENGLAND PEREMPTORIES MAY BE EXERCISED ONLY BY THE
DEFENDANT.  ORFIELD, CRIMINAL PROCEDURE FROM ARREST TO APPEAL 355
(1947).  HARRIS, CRIMINAL LAW 443 (20TH ED. 1960).  (FN4)  IT APPEARS
THAT IN MODERN TIMES PEREMPTORIES ARE RARELY USED IN ENGLAND, EVEN BY
DEFENDANTS.  IBID. 

WHILE PEREMPTORY CHALLENGES ARE COMMONLY USED IN THIS COUNTRY BOTH BY
THE PROSECUTION AND BY THE DEFENSE, WE HAVE LONG RECOGNIZED THAT THE
RIGHT TO CHALLENGE PEREMPTORILY IS NOT A FUNDAMENTAL RIGHT,
CONSTITUTIONALLY GUARANTEED, EVEN AS APPLIED TO A DEFENDANT, MUCH LESS
TO THE STATE.  STILSON V. UNITED STATES, 250 U.S. 583.  THIS COURT HAS
SANCTIONED NUMEROUS INCURSIONS UPON THE RIGHT TO CHALLENGE
PEREMPTORILY.  DEFENDANTS MAY BE TRIED TOGETHER EVEN THOUGH THE
EXERCISE BY ONE OF HIS RIGHT TO CHALLENGE PEREMPTORILY MAY DEPRIVE HIS
CODEFENDANT OF A JUROR HE DESIRES OR MAY REQUIRE THAT  CODEFENDANT TO
USE HIS CHALLENGES IN A WAY OTHER THAN HE WISHES.  UNITED STATES V.
MARCHANT, SUPRA.  A DEFENDANT MAY BE REQUIRED TO EXERCISE HIS
CHALLENGES PRIOR TO THE STATE, SO THAT SOME MAY BE WASTED ON JURORS
WHOM THE STATE WOULD HAVE CHALLENGED.  POINTER V. UNITED STATES, 151
U.S. 396.  CONGRESS MAY REGULATE THE NUMBER OF PEREMPTORY CHALLENGES
AVAILABLE TO DEFENDANTS BY STATUTE AND MAY REQUIRE CODEFENDANTS TO BE
TREATED AS A SINGLE DEFENDANT SO THAT EACH HAS ONLY A SMALL PORTION OF
THE NUMBER OF PEREMPTORIES HE WOULD HAVE IF TRIED SEPARATELY.  STILSON
V. UNITED STATES, SUPRA.  IN STILSON, THIS COURT STATED, "THERE IS
NOTHING IN THE CONSTITUTION OF THE UNITED STATES WHICH REQUIRES THE
CONGRESS TO GRANT PEREMPTORY CHALLENGES TO DEFENDANTS IN CRIMINAL
CASES; TRIAL BY AN IMPARTIAL JURY IS ALL THAT IS SECURED."  250 U.S.,
AT 586.  THE FOURTEENTH AMENDMENT WOULD IMPOSE NO GREATER OBLIGATION
UPON THE STATES.  TODAY THIS COURT REVERSES STILSON'S MAXIM, IN EFFECT
HOLDING THAT "THERE IS NOTHING IN THE CONSTITUTION OF THE UNITED STATES
WHICH REQUIRES THE STATE TO GRANT TRIAL BY AN IMPARTIAL JURY SO LONG AS
THE INVIOLABILITY OF THE PEREMPTORY CHALLENGE IS SECURED."    WERE IT
NECESSARY TO MAKE AN ABSOLUTE CHOICE BETWEEN THE RIGHT OF A DEFENDANT
TO HAVE A JURY CHOSEN IN CONFORMITY WITH THE REQUIREMENTS OF THE
FOURTEENTH AMENDMENT AND THE RIGHT TO CHALLENGE PEREMPTORILY, THE
CONSTITUTION COMPELS A CHOICE OF THE FORMER.  MARBURY V. MADISON, 1
CRANCH 137, SETTLED BEYOND DOUBT THAT WHEN A CONSTITUTIONAL CLAIM IS
OPPOSED BY A NONCONSTITUTIONAL ONE, THE FORMER MUST PREVAIL.  BUT NO
SUCH CHOICE IS COMPELLED IN THIS SITUATION.  THE HOLDING CALLED FOR BY
THIS CASE, IS THAT WHERE, AS HERE, A NEGRO DEFENDANT PROVES THAT
NEGROES CONSTITUTE A SUBSTANTIAL SEGMENT OF THE POPULATION, THAT
NEGROES ARE QUALIFIED TO SERVE AS JURORS, AND THAT NONE OR ONLY A TOKEN
NUMBER (FN5) HAS SERVED ON JURIES OVER AN EXTENDED PERIOD OF TIME, A
PRIMA FACIE CASE OF THE EXCLUSION OF NEGROES FROM JURIES IS THEN MADE
OUT; THAT THE STATE, UNDER OUR SETTLED DECISIONS, IS THEN CALLED UPON
TO SHOW THAT SUCH EXCLUSION HAS BEEN BROUGHT ABOUT "FOR SOME REASON
OTHER THAN RACIAL DISCRIMINATION," PATTON V. MISSISSIPPI, SUPRA, AT
466; AND THAT THE STATE WHOLLY FAILS TO MEET THE PRIMA FACIE CASE OF
SYSTEMATIC AND PURPOSEFUL RACIAL DISCRIMINATION BY SHOWING THAT IT HAS
BEEN ACCOMPLISHED BY THE USE OF A PEREMPTORY CHALLENGE SYSTEM UNLESS
THE STATE ALSO SHOWS THAT IT IS NOT INVOLVED IN THE MISUSE OF SUCH A
SYSTEM TO PREVENT ALL NEGROES FROM EVER SITTING ON ANY JURY.  SUCH A
HOLDING WOULD NOT INTERFERE WITH THE RIGHTS OF DEFENDANTS TO USE
PEREMPTORIES, NOR THE RIGHT OF THE STATE TO  USE PEREMPTORIES AS THEY
NORMALLY AND TRADITIONALLY HAVE BEEN USED. 

IT WOULD NOT MEAN, AS THE COURT'S PRIOR DECISIONS, TO WHICH I WOULD
ADHERE, MAKE CLEAR, THAT NEGROES ARE ENTITLED TO PROPORTIONATE
REPRESENTATION ON  A JURY.  CASSELL V. TEXAS, SUPRA, AT 286-287
(OPINION OF MR. JUSTICE REED).  NOR WOULD IT MEAN THAT WHERE SYSTEMATIC
EXCLUSION OF NEGROES FROM JURY SERVICE HAS NOT BEEN SHOWN, A
PROSECUTOR'S MOTIVES ARE SUBJECT TO QUESTION OR JUDICIAL INQUIRY WHEN
HE EXCLUDES NEGROES OR ANY OTHER GROUP FROM SITTING ON A JURY IN A
PARTICULAR CASE.  ONLY WHERE SYSTEMATIC EXCLUSION HAS BEEN SHOWN, WOULD
THE STATE BE CALLED UPON TO JUSTIFY ITS USE OF PEREMPTORIES OR TO
NEGATIVE THE STATE'S INVOLVEMENT IN DISCRIMINATORY JURY SELECTION. 

THIS HOLDING WOULD MEAN, HOWEVER, THAT A CONVICTION CANNOT STAND
WHERE, AS HERE, A NEGRO DEFENDANT, BY SHOWING WIDESPREAD SYSTEMATIC
EXCLUSION, MAKES OUT A PRIMA FACIE CASE OF UNCONSTITUTIONAL
DISCRIMINATION WHICH THE STATE DOES NOT REBUT.  DRAWING THE LINE IN
THIS FASHION, IN MY VIEW, ACHIEVES A PRACTICAL ACCOMMODATION OF THE
CONSTITUTIONAL RIGHT AND THE OPERATION OF THE PEREMPTORY CHALLENGE
SYSTEM WITHOUT DOING VIOLENCE TO EITHER. 

I DEPLORE THE COURT'S DEPARTURE FROM ITS HOLDINGS IN STRAUDER AND
NORRIS.  BY AFFIRMING PETITIONER'S CONVICTION ON THIS CLEAR RECORD OF
JURY EXCLUSION BECAUSE OF RACE, THE COURT CONDONES THE HIGHLY
DISCRIMINATORY PROCEDURES USED IN TALLADEGA COUNTY UNDER WHICH NEGROES
NEVER HAVE SERVED ON ANY PETIT JURY IN THAT COUNTY.  BY ADDING TO THE
PRESENT HEAVY BURDEN OF PROOF REQUIRED OF DEFENDANTS IN THESE CASES,
THE COURT CREATES ADDITIONAL BARRIERS TO THE ELIMINATION OF PRACTICES
WHICH HAVE OPERATED IN MANY COMMUNITIES THROUGHOUT THE NATION TO
NULLIFY THE COMMAND OF THE EQUAL PROTECTION CLAUSE IN THIS IMPORTANT
AREA IN THE ADMINISTRATION OF JUSTICE.  SEE 1961 UNITED STATES
COMMISSION ON CIVIL RIGHTS  REPORT, JUSTICE 81-103. 

I WOULD BE FAITHFUL TO THE TEACHINGS OF THIS COURT IN ITS PRIOR JURY
EXCLUSION CASES AND THE VIEW, REPEATEDLY EXPRESSED BY THIS COURT, THAT
DISTINCTIONS BETWEEN CITIZENS SOLELY BECAUSE OF THEIR RACE, RELIGION,
OR ANCESTRY, ARE ODIOUS TO THE FOURTEENTH AMENDMENT.  I WOULD REAFFIRM
AND APPLY HERE WHAT THIS COURT SAID IN SMITH V. TEXAS, SUPRA, AT 130: 

"IT IS PART OF THE ESTABLISHED TRADITION IN THE USE OF JURIES AS
INSTRUMENTS OF PUBLIC JUSTICE THAT THE JURY BE A BODY TRULY
REPRESENTATIVE OF THE COMMUNITY.  FOR RACIAL DISCRIMINATION TO RESULT
IN THE EXCLUSION FROM JURY SERVICE OF OTHERWISE QUALIFIED GROUPS NOT
ONLY VIOLATES OUR CONSTITUTION AND THE LAWS ENACTED UNDER IT BUT IS AT
WAR WITH OUR BASIC CONCEPTS OF A DEMOCRATIC SOCIETY AND A
REPRESENTATIVE GOVERNMENT  ...  .  THE FACT THAT THE WRITTEN WORDS OF A
STATE'S LAWS HOLD OUT A PROMISE THAT NO SUCH DISCRIMINATION WILL BE
PRACTICED IS NOT ENOUGH.  THE FOURTEENTH AMENDMENT REQUIRES THAT EQUAL
PROTECTION TO ALL MUST BE GIVEN - NOT MERELY PROMISED." 

APPLYING THESE PRINCIPLES, I WOULD REVERSE.  THIS, OF COURSE, WOULD
"NOT MEAN THAT A GUILTY DEFENDANT MUST GO FREE."  PATTON V.
MISSISSIPPI, SUPRA, AT 469; SEE HILL V. TEXAS, SUPRA, AT 406.  FOR, AS
THE COURT POINTED OUT IN PATTON V. MISSISSIPPI, SUPRA, AT 469, THE
STATE, IF IT SO DESIRED, COULD RETRY PETITIONER BY A JURY "SELECTED AS
THE CONSTITUTION COMMANDS." 

FN1  SEE ALSO STATE V. LOWRY, 263 N.C. 536, 139 S.E.2D 870. 

FN2  I BELIEVE THAT THE RECORD SHOWS THAT AGREEMENT BETWEEN THE STATE
AND THE DEFENSE TO EXCLUDE NEGROES HAS OCCURRED "MANY TIMES."  THE
COURT ITSELF ADMITS THAT AT LEAST "IN SOME CASES, THE PROSECUTION
AGREED WITH THE DEFENSE TO REMOVE NEGROES."  ANTE, AT 224-225.  IT
CONCLUDES, HOWEVER, THAT THIS IS NOT SUFFICIENT ON THE GROUND THAT
"THERE IS NO EVIDENCE, HOWEVER, OF WHAT THE PROSECUTION DID OR DID NOT
DO ON ITS OWN ACCOUNT IN ANY CASES OTHER THAN THE ONE AT BAR."  IBID.
THIS COURT, HOWEVER, HAS NEVER HELD IN ANY CASE INVOLVING RACIAL
DISCRIMINATION UNDER THE FOURTEENTH AMENDMENT THAT SUCH DISCRIMINATION
IS UNCONSTITUTIONAL ONLY IF IT IS BROUGHT ABOUT BY THE STATE ACTING
ALONE.  THE TEST WHICH HAS BEEN APPLIED IS WHETHER THE STATE "TO SOME
SIGNIFICANT EXTENT  ...  HAS BEEN  ...  INVOLVED."  BURTON V.
WILMINGTON PARKING AUTHORITY, 365 U.S. 715, 722.  SEE PETERSON V.
GREENVILLE, 373 U.S. 244; LOMBARD V. LOUISIANA, 373 U.S. 267.  "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
... RIGHTS MERELY BECAUSE THEY ARE COLORED."  TERRY V. ADAMS, 345 U.S.
461, 473 (SEPARATE OPINION OF MR. JUSTICE FRANKFURTER).  THE STATE'S
AGREEMENT WITH THE DEFENSE, WHICH THE RECORD ESTABLISHES, TO REMOVE
NEGROES FROM JURY VENIRES, UNDER THE COURT'S SETTLED DECISIONS MEETS
THE "STATE ACTION" REQUIREMENT OF THE FOURTEENTH AMENDMENT.  UNDER THE
PRINCIPLES OF STRAUDER AND THE CASES FOLLOWING, IT CONSTITUTES "ACTION
OF A STATE  ...  THROUGH ITS  ...  ADMINISTRATIVE OFFICERS" EXCLUDING
PERSONS "SOLELY BECAUSE OF THEIR RACE OR COLOR" FROM SERVING ON
JURIES.  CARTER V. TEXAS, SUPRA, AT 447. 

FN3  SEE HARPER V. MISSISSIPPI, SUPRA; STATE V. LOWRY, SUPRA. 

FN4  THE CROWN'S RIGHT TO CHALLENGE PEREMPTORILY WAS REMOVED IN THAT
YEAR BY 33 EDW.  1, STAT. 4, BECAUSE THE KING'S RIGHT TO CHALLENGE
WITHOUT SHOWING CAUSE "WAS MISCHIEVOUS TO THE SUBJECT, TENDING TO
INFINITE DELAYES AND DANGER."  COKE ON LITTLETON 156 (14TH ED.  1791). 
SINCE 33 EDW.  1, STAT. 4, THE CROWN CAN ONLY REQUIRE JURORS WHOM IT
WISHES TO CHALLENGE TO STAND ASIDE FROM THE PANEL UNTIL THE DEFENDANT
HAS EXERCISED ALL HIS CHALLENGES.  THEN, IF A JURY HAS NOT BEEN
SELECTED, THE JURORS, WHO HAVE BEEN "STOOD ASIDE" WILL BE USED UNLESS
THE CROWN CAN CHALLENGE THEM FOR CAUSE.  ORFIELD, SUPRA, AT 356,
HARRIS, SUPRA, AT 443, III BACON'S ABRIDGMENT 764 (5TH ED. 1798).  EVEN
THIS LIMITED PROCEDURE AS THE COURT NOTES, ANTE, AT 213, N. 12,
HOWEVER, IS RARELY USED TODAY.  ORFIELD, SUPRA, AT 355; HARRIS, SUPRA,
AT 443. 

FN5  SEE CASSELL V. TEXAS, SUPRA; HARPER V. MISSISSIPPI, SUPRA.
..END :






















HUGHES TOOL CO. V. TRANS WORLD AIRLINES, INC. 380 U.S. 248 


NO. 443.  ARGUED MARCH 3, 1965.  - DECIDED MARCH 8, 1965.  - CERTIORARI
DISMISSED AS IMPROVIDENTLY GRANTED.  - REPORTED BELOW:  332 F.2D 602. 


HUGHES TOOL CO. ET AL. V. TRANS WORLD AIRLINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 
..END :

















HUGHES TOOL CO. V. TRANS WORLD AIRLINES, INC. 380 U.S. 249 


NO. 501.  ARGUED MARCH 4, 1965.  - DECIDED MARCH 8, 1965.  - CERTIORARI
DISMISSED AS IMPROVIDENTLY GRANTED.  - REPORTED BELOW:  332 F.2D 602. 


HUGHES TOOL CO. V. TRANS WORLD AIRLINES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 
..END :

















ARTHUR V. COLORADO 380 U.S. 250 


NO. 486, MISC.  DECIDED MARCH 8, 1965.  - CERTIORARI GRANTED AND
JUDGMENT REVERSED.  - REPORTED BELOW: - COLO. - , 393 P.2D 371. 


ARTHUR V. COLORADO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
GIDEON V. WAINWRIGHT, 372 U.S. 335; PICKELSIMER V. WAINWRIGHT, 375 U.S.
2. 
..END :















HALL V. ILLINOIS 380 U.S. 250 


NO. 848, MISC.  DECIDED MARCH 8, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HALL V. ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















DAVIS, ASSESSOR-COLLECTOR OF TAXES, BEXAR COUNTY, TEXAS V. MABRY 380
U.S. 251 


NO. 774.  DECIDED MARCH 8, 1965.  - 232 F. SUPP. 930, AFFIRMED. 


DAVIS, ASSESSOR-COLLECTOR OF TAXES, BEXAR COUNTY, TEXAS, ET AL. V. MABRY
ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  CARRINGTON V. RASH, ANTE, P. 89. 

MR. JUSTICE HARLAN WOULD REVERSE THE JUDGMENT OF THE DISTRICT COURT
FOR THE REASONS STATED IN HIS DISSENTING OPINION IN CARRINGTON V. RASH,
ANTE, AT 97. 
..END :












STADLER, EXECUTORS V. STATE BOARD OF EQUALIZATION OF CALIFORNIA 380 U.S.
252 


NO. 797.  DECIDED MARCH 8, 1965.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  227 CAL. APP. 2D 314,
38 CAL. RPTR.  587. 


STADLER ET AL., EXECUTORS V. STATE BOARD OF EQUALIZATION OF CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














BARNES V. TEXAS 380 U.S. 253 


NO. 346, MISC.  DECIDED MARCH 8, 1965.  - CERTIORARI GRANTED AND
JUDGMENT REVERSED. 


BARNES V. TEXAS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF TEXAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED. 
GIORDENELLO V. UNITED STATES, 357 U.S. 480; AGUILAR V. TEXAS, 378 U.S.
108. 
..END :














SEALS V. ALABAMA 380 U.S. 254 


NO. 465, MISC.  DECIDED MARCH 8, 1965.  - CERTIORARI GRANTED AND
JUDGMENT REVERSED.  - REPORTED BELOW: 276 ALA. 654, 165 SO. 2D 742. 


SEALS V. ALABAMA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE COURT IS OF THE VIEW THAT ON
THE RECORD THE PETITIONER IS AN INDIGENT.  THEREFORE, THE JUDGMENT MUST
BE REVERSED.  GRIFFIN V. ILLINOIS, 351 U.S. 12. 
..END :















UDALL, SECRETARY OF THE INTERIOR V. TALLMAN 380 U.S. 1 


NO. 34.  ARGUED OCTOBER 22, 26, 1964.  - DECIDED MARCH 1, 1965.  - 116
U.S. APP. D.C. 379, 324 F.2D 411, REVERSED. 


SINCE THEIR PROMULGATION, THE SECRETARY OF THE INTERIOR HAS
CONSISTENTLY CONSTRUED EXECUTIVE ORDER NO. 8979 AND PUBLIC LAND ORDER
NO. 487, RELATING TO THE DISPOSITION OF PUBLIC LANDS LOCATED IN THE
KENAI NATIONAL MOOSE RANGE IN ALASKA, NOT TO BAR THE ISSUANCE OF OIL
AND GAS LEASES.  HIS INTERPRETATION HAS BEEN MADE A REPEATED MATTER OF
PUBLIC RECORD, AND A NUMBER OF LEASES HAVE BEEN DEVELOPED, AT GREAT
EXPENSE, IN RELIANCE ON IT.  IF, THEREFORE, HIS INTERPRETATION OF THE
ORDERS IS NOT UNREASONABLE, COURTS MUST RESPECT IT.  PP. 4-18. 

(A)  THE SECRETARY'S INTERPRETATION OF EXECUTIVE ORDER NO. 8979,
WHICH WITHDREW THE LANDS COVERED BY IT FROM "SETTLEMENT, LOCATION,
SALE, OR ENTRY, OR OTHER DISPOSTION (EXCEPT FOR FISH TRAP SITES) UNDER
ANY OF THE PUBLIC-LAND LAWS APPLICABLE TO ALASKA," THOUGH NOT THE ONLY
INTERPRETATION PERMITTED BY THE LANGUAGE OF THE ORDER, IS A REASONABLE
INTERPRETATION.  PP.  19-23. 

(B)  WILBUR V. UNITED STATES EX REL. BARTON, 60 APP. D.C. 11, 46 F.2D
217 (1930), AFF'D SUB NOM. UNITED STATES EX REL. MCLENNAN V. WILBUR,
283 U.S. 414, DISTINGUISHED.  PP. 21-23. 

(C)  THE REASONABLENESS OF THE SECRETARY'S INTERPRETATION OF PUBLIC
LAND ORDER NO. 487 FOLLOWS A FORTIORI FROM THE REASONABLENESS OF HIS
INTERPRETATION OF EXECUTIVE ORDER NO. 8979.  P. 23. 

UDALL, SECRETARY OF THE INTERIOR V. TALLMAN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

AT ISSUE IN THIS CASE IS THE EFFECT OF EXECUTIVE ORDER NO. 8979 AND
PUBLIC LAND ORDER NO. 487 UPON THE SECRETARY OF THE INTERIOR'S
AUTHORITY TO ISSUE OIL AND GAS LEASES. 

BETWEEN OCTOBER 15, 1954, AND JANUARY 28, 1955, D.J. GRIFFIN AND
OTHER PERSONS - HEREINAFTER COLLECTIVELY REFERRED TO AS THE GRIFFIN
LESSEES - FILED APPLICATIONS FOR OIL AND GAS LEASES ON APPROXIMATELY
25,000 ACRES LOCATED IN THE KENAI NATIONAL MOOSE RANGE IN ALASKA.  ON
AUGUST 14, 1958, THE RESPONDENTS FILED OFFERS TO LEASE THE SAME LANDS. 
PART, THAT "THE PERSON FIRST MAKING APPLICATION FOR THE LEASE WHO IS
QUALIFIED TO HOLD A LEASE  ...  SHALL BE ENTITLED TO A LEASE OF SUCH
LANDS WITHOUT COMPETITIVE BIDDING  ... ."  41 STAT. 443 (1920), AS
AMENDED BY 60 STAT. 951 (1946), 30 U.S.C. SEC. 226 (1958 ED.).  THE
BUREAU OF LAND MANAGEMENT OF THE DEPARTMENT OF THE INTERIOR DETERMINED
THAT THE GRIFFIN LESSEES WERE THE PERSONS WHO HAD APPLIED FIRST, AND
ISSUED TO THEM LEASES ON THE TRACTS, EFFECTIVE SEPTEMBER 1, 1958. 
RESPONDENTS' APPLICATIONS WERE REACHED FOR PROCESSING IN OCTOBER 1959,
AND WERE REJECTED ON THE GROUND THAT THE LANDS HAD BEEN LEASED TO PRIOR
APPLICANTS.  (FN1) 

FROM THE REJECTION OF THEIR APPLICATIONS, RESPONDENTS APPEALED TO THE
DIRECTOR OF THE BUREAU OF LAND MANAGEMENT AND THEN TO THE SECRETARY OF
THE INTERIOR, BOTH OF WHOM AFFIRMED THE DECISION.  68 I.D. 256 (1961). 
RESPONDENTS THEN BROUGHT AN ACTION IN THE NATURE OF MANDAMUS, IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, TO COMPEL
THE SECRETARY TO ISSUE OIL AND GAS LEASES TO THEM.  THE DISTRICT COURT
GRANTED SUMMARY JUDGMENT IN FAVOR OF THE SECRETARY DISMISSING THE
COMPLAINT.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
REVERSED, HOLDING THAT EXECUTIVE ORDER NO. 8979, THE ORDER CREATING THE
MOOSE RANGE IN 1941, AND PUBLIC LAND ORDER NO. 487, ISSUED BY THE
SECRETARY IN 1948, (FN2) HAD WITHDRAWN THE LANDS IN CONTROVERSY FROM
AVILABILITY FOR LEASING UNDER THE MINERAL LEASING ACT, AND THAT THE
LANDS REMAINED CLOSED TO LEASING UNTIL THEY WERE REOPENED BY A REVISED
DEPARTMENTAL REGULATION ON AUGUST 14, 1958.  THE COURT THEREFORE HELD
THAT THE GRIFFIN APPLICATIONS, FILED WHILE THE LAND WAS CLOSED, WERE
INEFFECTIVE, RENDERING THE LEASES ISSUED ON THEM NULLITIES; THE
RESPONDENTS, AS THE PERSONS FIRST MAKING APPLICATION AFTER THE
PROMULGATION OF THE 1958 REGULATION, WERE HELD TO BE ENTITLED TO THE
LEASES.  116 U.S. APP. D.C. 379, 324 F.2D 411 (1963).  WE GRANTED
CERTIORARI, 376 U.S. 961. 

WE CONCLUDE THAT THE DISTRICT COURT CORRECTLY REFUSED TO ISSUE A WRIT
OF MANDAMUS, AND ACCORDINGLY REVERSE THE DECISION OF THE COURT OF
APPEALS.  SINCE THEIR PROMULGATION, THE SECRETARY HAS CONSISTENTLY
CONSTRUED BOTH ORDERS NOT TO BAR OIL AND GAS LEASES; MOREOVER, THIS
INTERPRETATION HAS BEEN MADE A REPEATED MATTER OF PUBLIC RECORD.  WHILE
THE GRIFFIN LEASES AND OTHERS LOCATED IN THE MOOSE RANGE HAVE BEEN
DEVELOPED IN RELIANCE UPON THE SECRETARY'S INTERPRETATION, RESPONDENTS
DO NOT CLAIM TO HAVE RELIED TO THEIR DETRIMENT UPON A CONTRARY
CONSTRUCTION.  THE SECRETARY'S INTERPRETATION MAY NOT BE THE ONLY ONE
PERMITTED BY THE LANGUAGE OF THE ORDERS, BUT IS IS QUITE CLEARLY A
REASONABLE INTERPRETATION; COURTS MUST THEREFORE RESPECT IT.  MCLAREN
V. FLEISCHER, 256 U.S. 477, 481; BOWLES V. SEMINOLE ROCK CO., 325 U.S.
410, 413-414. 

        I. 

THE MINERAL LEASING ACT OF 1920, 41 STAT. 437, 30 U.S.C. SEC. 181 ET
SEQ. (1958 ED.), GAVE THE SECRETARY OF THE INTERIOR BROAD POWER TO
ISSUE OIL AND GAS LEASES ON PUBLIC LANDS NOT WITHIN ANY KNOWN
GEOLOGICAL STRUCTURE OF A PRODUCING OIL AND GAS FIELD.  ALTHOUGH THE
ACT DIRECTED THAT IF A LEASE WAS ISSUED ON SUCH A TRACT, IT HAD TO BE
ISSUED TO THE FIRST QUALIFIED APPLICANT, IT LEFT THE SECRETARY
DISCRETION TO REFUSE TO ISSUE ANY LEASE AT ALL ON A GIVEN TRACT. 
UNITED STATES EX REL. MCLENNAN V. WILBUR, 283 U.S. 414.  THE ACT
EXCLUDED FROM ITS APPLICATION CERTAIN DESIGNATED LANDS, (FN3) BUT DID
NOT EXCLUDE LANDS WITHIN WILDLIFE REFUGE AREAS. 

THE KENAI NATIONAL MOOSE RANGE WAS CREATED IN 1941 BY EXECUTIVE ORDER
NO. 8979, 6 FED. REG.  6471, BY WHICH APPROXIMATELY TWO MILLION ACRES
OF THE PUBLIC DOMAIN WERE SET ASIDE "AS A REFUGE AND BREEDING GROUND
FOR MOOSE."  THE ORDER PROVIDED THAT "NONE OF THE ABOVE-DESCRIBED LANDS
EXCEPTING A DEFINED AREA SHALL BE SUBJECT TO SETTLEMENT, LOCATION,
SALE, OR ENTRY, OR OTHER DISPOSITION (EXCEPT FOR FISH TRAP SITES) UNDER
ANY OF THE PUBLIC-LAND LAWS APPLICABLE TO ALASKA  ...  ."  ON NOVEMBER
8, 1947, THE SECRETARY PROMULGATED THE FIRST GENERAL REGULATION DEALING
WITH THE ISSUANCE OF OIL AND GAS LEASES WITHIN WILDLIFE REFUGES.  IT
PROVIDED SIMPLY THAT SUCH LEASES HAD TO BE SUBJECTED TO AN APPROVED
UNIT PLAN AND CONTAIN A PROVISION PROHIBITING DRILLING OR PROSPECTING
WITHOUT THE ADVANCE CONSENT OF THE SECRETARY.  12 FED. REG. 7334. 

ON JUNE 16, 1948, THE SECRETARY ISSUED PUBLIC LAND ORDER NO. 487, 13
FED. REG. 3462: 

"THE PUBLIC LANDS WITHIN THE FOLLOWING-DESCRIBED AREAS IN ALASKA
INCLUDING MOST OF THAT PORTION OF THE MOOSE RANGE WHICH HAD BEEN
EXCEPTED FROM EXECUTIVE ORDER NO. 8979 ARE HEREBY TEMPORARILY WITHDRAWN
FROM SETTLEMENT, LOCATION, SALE OR ENTRY, FOR CLASSIFICATION AND
EXAMINATION, AND IN AID OF PROPOSED LEGISLATION: 

     *         *         *     *         * 

"THIS ORDER SHALL TAKE PRECEDENCE OVER, BUT SHALL NOT MODIFY  ...
THE RESERVATION FOR THE KENAI NATIONAL MOOSE RANGE MADE BY EXECUTIVE
ORDER NO. 8979 OF DECEMBER 16, 1941  ...  ." 

THUS NEITHER EXECUTIVE ORDER NO. 8979 NOR PUBLIC LAND ORDER NO. 487
EXPRESSLY WITHDREW THE LANDS TO WHICH IT APPLIED FROM OIL AND GAS
LEASING.  IN 1951, HOWEVER, THE SECRETARY SET ASIDE, FOR USES
INCONSISTENT WITH MINERAL LEASING, MINOR PORTIONS OF THE LANDS COVERED
BY PUBLIC LAND ORDER NO. 487:

"THE FOLLOWING-DESCRIBED PUBLIC LANDS IN ALASKA ARE HEREBY WITHDRAWN
FROM ALL FORMS OF APPROPRIATION UNDER THE PUBLIC-LAND LAWS, INCLUDING
THE MINING LAWS AND THE MINERAL-LEASING LAWS ...  ."  (FN4) 

HAD THE SECRETARY THOUGHT THAT PUBLIC LAND ORDER NO. 487 HAD ALREADY
WITHDRAWN THE LANDS COVERED BY IT FROM APPROPRIATION UNDER THE MINERAL
LEASING LAWS, HIS REFERENCE TO SUCH LAWS IN THE 1951 ORDERS WOULD HAVE
BEEN SUPERFLUOUS. 

BY AN INTRA-AGENCY MEMORANDUM DATED AUGUST 31, 1953, THE DIRECTOR OF
THE BUREAU OF LAND MANAGEMENT ADVISED THE REGIONAL ADMINISTRATORS OF
THE BUREAU AND MANAGERS OF THE LOCAL LAND OFFICES THAT "A POSSIBLE
REVISION OF POLICY AND REGULATIONS" ON LEASING IN WILDLIFE REFUGES WAS
BEING STUDIED, AND DIRECTED THEM THAT "PENDING THE COMPLETION OF THIS
STUDY AND THE POSSIBLE REVISION OF EXISTING REGULATIONS, YOU WILL
SUSPEND ACTION ON ALL PENDING OIL AND GAS LEASE OFFERS AND APPLICATIONS
FOR LANDS WITHIN SUCH REFUGES."  IT IS NOT DISPUTED, AND SUBSEQUENT
MEMORANDA MAKE CLEAR, THAT THE 1953 MEMORANDUM DID NOT PURPORT TO
PREVENT EITHER THE ISSUANCE OF LEASES WITH THE APPROVAL OF THE NATIONAL
OFFICE OR THE CONTINUED FILING OF LEASE OFFERS.  (FN5)  DURING LATE
1954 AND EARLY 1955, A NUMBER OF INDIVIDUALS FILED APPLICATIONS FOR OIL
AND GAS LEASES IN THE NORTHERN HALF OF THE MOOSE RANGE; AMONG THESE
APPLICATIONS WERE THOSE OF THE GRIFFIN LESSEES.  ACTION ON THEM WAS
SUSPENDED IN ACCORDANCE WITH THE 1953 DIRECTIVE, BUT NONE WAS REJECTED
ON THE GROUND THAT THE LAND IN QUESTION WAS CLOSED TO LEASING.  (FN6) 

ON SEPTEMBER 9, 1955, THE SECRETARY ISSUED PUBLIC LAND ORDER NO.
1212, 20 FED. REG. 6795, REVOKING IN ITS ENTIRETY PUBLIC LAND ORDER NO.
487.  AFTER GRANTING CERTAIN PREFERENCES, IT PROVIDED: 

"6.  ANY OF THE LANDS DESCRIBED IN PARAGRAPHS 4(A), 4(B) OR 4(D) OF
THIS ORDER THEN REMAINING UNAPPROPRIATED, SHALL BECOME SUBJECT TO SUCH
APPLICATION, PETITION, SELECTION, OR OTHER FORM OF APPROPRIATION BY THE
PUBLIC GENERALLY AS MAY BE AUTHORIZED BY THE PUBLIC-LAND LAWS,
INCLUDING THE MINERAL-LEASING LAWS  ...  . 

"7.  COMMENCING AT 10:00 A.M. ON THE 182ND DAY AFTER THE DATE OF THIS
ORDER, ANY OF THE UNSURVEYED LANDS DESCRIBED IN PARAGRAPH 4(C) NOT
SETTLED UPON BY VETERANS OR OTHER PERSONS ENTITLED TO CREDIT FOR
SERVICE SHALL BECOME SUBJECT TO SETTLEMENT AND OTHER FORMS OF
APPROPRIATION BY THE PUBLIC GENERALLY, INCLUDING LEASING UNDER THE
MINERAL-LEASING LAWS  ...  ." 

RESPONDENTS MAKE MUCH OF THE ITALICIZED LANGUAGE, WHICH DOES APPEAR
TO BE INCONSISTENT WITH THE DEPARTMENT'S PRIOR INTERPRETATION OF PUBLIC
LAND ORDER NO. 487 AND ITS ACTUAL LEASING PRACTICES.  HOWEVER, ON
OCTOBER 14, 1955 - 35 DAYS AFTER IT WAS PROMULGATED BUT BEFORE IT WENT
INTO EFFECT, AND YEARS BEFORE THE RESPONDENTS ENTERED THE PICTURE -
PUBLIC LAND ORDER NO. 1212 WAS AMENDED TO DELETE THE REFERENCES TO THE
MINERAL-LEASING LAWS.  20 FED. REG. 7904. 

ON DECEMBER 8, 1955, THE ANTICIPATED REVISION OF THE 1947 REFUGE
LEASING REGULATION WAS PROMULGATED.  20 FED. REG. 9009.  IT WAS MORE
RESTRICTIVE THAN THE OLD REGULATION, AND GAVE INCREASED POWER TO THE
FISH AND WILDLIFE SERVICE TO APPROVE OR DISAPPROVE OIL AND GAS
DEVELOPMENT OF REFUGES.  IT LISTED IN AN APPENDIX A A NUMBER OF REFUGES
(NOT INCLUDING KENAI) IN WHICH, BECAUSE OF THEIR IMPORTANCE TO THE
PRESERVATION OF RARE SPECIES OF PLANT AND ANIMAL LIFE, NO LEASING AT
ALL WOULD BE PERMITTED.  IN APPENDIX B IT LISTED CERTAIN AREAS
(INCLUDING A SMALL PART OF THE MOOSE RANGE NOT INVOLVED HERE) "WITH
RESPECT TO WHICH THE FISH AND WILDLIFE SERVICE REPORTS THAT OIL AND GAS
DEVELOPMENT MIGHT SERIOUSLY IMPAIR OR DESTROY THE USEFULNESS OF THE
LANDS FOR WILDLIFE CONSERVATION PURPOSES  ...  ."  IN SUCH APPENDIX B
AREAS, LEASING WAS TO BE PERMITTED ONLY UPON THE APPROVAL BY THE
DIRECTOR OF THE FISH AND WILDLIFE SERVICE OF "A COMPLETE AND DETAILED
OPERATING PROGRAM FOR THE AREA."  IN ALL OTHER WILDLIFE AREAS THE
REGULATION PROVIDED THAT "OIL AND GAS LEASES MAY BE ISSUED" PROVIDED
THEY CONTAIN SPECIFIED CONDITIONS REQUIRING APPROVAL BY THE FISH AND
WILDLIFE SERVICE OF THE TYPE OF PROSPECTING TO BE CONDUCTED, AND
ADOPTION BY THE LESSEE OF A UNIT PLAN APPROVED BY THE SERVICE. 
RESPONDENTS ARGUE THAT EVEN IF IT BE ASSUMED THAT (AS IS CLEARLY THE
CASE) THE 1955 REGULATION TREATED THE LANDS IN CONTROVERSY AS OPEN TO
LEASING, THE REGULATION IS NOT PROBATIVE OF THE AVAILABILITY OF THE
LANDS FOR LEASING PRIOR TO 1955, AND IS THEREFORE NO EVIDENCE THAT THE
SECRETARY VIEWED THE LANDS AS OPEN TO LEASING AT THE TIME THE GRIFFIN
APPLICATIONS WERE FILED.  WE THINK, HOWEVER, THAT IF THE SECRETARY HAD
BEEN OF THE OPINION THAT HE WAS CHANGING THE STATUS OF THAT PART OF THE
MOOSE RANGE NOT COVERED BY APPENDIX B, RATHER THAN MERELY IMPOSING
ADDITIONAL RESTRICTIONS ON LEASING THEREIN, HE WOULD HAVE DONE SO IN
TERMS MORE EXPRESS THAN THOSE USED IN THE 1955 REGULATION.  HE DID NOT
REFER TO THE RANGE AS A WHOLE; THE ONLY REFERENCE BY NAME WAS TO THOSE
PARTS OF THE RANGE WHICH WERE SPECIFIED IN ORDER TO EXCEPT THEM FROM
THE GENERAL PROVISION THAT "OIL AND GAS LEASES MAY BE ISSUED" IN
WILDLIFE REFUGES.  THOUGH THIS SPECIFICATION SUPPORTS THE INFERENCE
THAT THE REGULATION WAS DRAFTED ON THE ASSUMPTION THAT THE REMAINDER OF
THE RANGE WAS OPEN TO LEASING, SUCH INDIRECT IMPLICATION - HOWEVER
CLEARLY IT CONFIRMS THE PRE-EXISTING AVAILABILITY OF THE RANGE - WOULD
HAVE BEEN A TECHNIQUE INAPPROPRIATE FOR EFFECTING A CHANGE OF THE
RANGE'S STATUS.  MOREOVER, THE PRESIDENT'S 1952 DELEGATION TO THE
SECRETARY OF POWER TO MAKE OR MODIFY WITHDRAWALS HAD DIRECTED THAT "ALL
ORDERS ISSUED BY THE SECRETARY OF THE INTERIOR UNDER THE AUTHORITY OF
THIS ORDER SHALL BE DESIGNATED AS PUBLIC LAND ORDERS AND SHALL BE
SUBMITTED  ...  FOR FILING AND FOR PUBLICATION IN THE FEDERAL
REGISTER."  EXECUTIVE ORDER NO. 10355, 17 FED. REG. 4831.  IT MAY BE
THAT A DOCUMENT NOT LABELED A PUBLIC LAND ORDER COULD IN LEGAL EFFECT
CONSTITUTE AN EXERCISE OF THAT POWER; HOWEVER, IF THE SECRETARY HAD
MEANT TO EXERCISE SUCH POWER, IT IS LIKELY THAT HE WOULD HAVE DONE SO
IN THE MANNER DIRECTED BY THE PRESIDENT'S DELEGATION.  (FN7) 

WHEN BILLS WERE INTRODUCED IN CONGRESS EARLY IN 1956 TO RESTRICT OIL
AND GAS LEASING IN WILDLIFE REFUGES, THE HOUSE COMMITTEE ON MERCHANT
MARINE AND FISHERIES AND THE SUBCOMMITTEE ON MERCHANT MARINE AND
FISHERIES OF THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
HELD EXTENSIVE HEARINGS THEREON.  THE BILLS AS INTRODUCED ONLY FORBADE
THE SECRETARY TO "DISPOSE OF" LANDS IN WILDLIFE REFUGES, AND THE
QUESTION AROSE DURING THE HEARINGS WHETHER THAT LANGUAGE WOULD APPLY TO
THE ISSUANCE OF OIL AND GAS LEASES.  A REPRESENTATIVE OF THE DEPARTMENT
ASSERTED, WITHOUT CONTRADICTION, THAT THE GRANTING OF AN OIL AND GAS
LEASE WAS NOT A "DISPOSITION" AND WOULD NOT BE AFFECTED BY THE LANGUAGE
AS PROPOSED.  HEARINGS BEFORE THE HOUSE COMMITTEE ON MERCHANT MARINE
AND FISHERIES ON H.R. 5306, ETC., 84TH CONG., 2D SESS., P. 98.  AN
AMENDMENT WAS ACCORDINGLY PROPOSED SPECIFICALLY RESTRICTING OIL AND GAS
LEASING.  NEITHER COMMITTEE REPORTED FAVORABLY ON THE BILLS.  HOWEVER,
THE HOUSE COMMITTEE SUBMITTED A REPORT STATING THAT IT HAD BEEN DECIDED
TO TRY, FOR AN EXPERIMENTAL PERIOD OF TIME, AN ARRANGEMENT WHEREBY EACH
PROPOSED ALIENATION OF RELINQUISHMENT OF ANY INTEREST THE FISH AND
WILDLIFE SERVICE HAD IN LANDS UNDER ITS JURISDICTION WOULD BE SUBMITTED
TO THE COMMITTEE, WHICH WOULD WITHIN 60 DAYS APPROVE OR DISAPPROVE THE
ACTION CONTEMPLATED.  H.R.  REP. NO. 1941, 84TH CONG., 2D SESS., PP. 12
13.  THIS RESOLUTION OF THE ISSUE SUGGESTS THAT THE COMMITTEE ACCEPTED
THE DEPARTMENT'S VIEW THAT THE SECRETARY HAD PRE-EXISTING AUTHORITY TO
GRANT OIL AND GAS LEASES IN THE MOOSE RANGE, AND WAS CONCERNED ONLY
WITH THE WAY IN WHICH HE EXERCISED HIS DISCRETION.    PURSUANT TO THE
AGREEMENT, THE HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES HELD
PUBLIC HEARINGS ON JULY 20 AND 25, 1956, ON A PROPOSAL FROM THE FISH
AND WILDLIFE SERVICE FOR THE ISSUANCE OF 30 OIL AND GAS LEASES ON
71,680 ACRES IN THE NORTHERN HALF OF THE MOOSE RANGE - LOCATED WITHIN
THE AREA ENCOMPASSED BY EXECUTIVE ORDER NO. 8979 - FOR WHICH LEASE
APPLICATIONS HAD BEEN FILED IN 1954 BY AMICUS CURIAE RICHFIELD OIL
CORPORATION AND OTHERS.  THE PROPOSAL CONTEMPLATED THAT THE LEASES
WOULD BE SUBJECT TO THE SWANSON RIVER UNIT PLAN OF OPERATION, WHICH HAD
BEEN APPROVED BY THE BUREAU OF LAND MANAGEMENT, THE GEOLOGICAL SURVEY
AND THE FISH AND WILDLIFE SERVICE, ALL BRANCHES OF THE DEPARTMENT OF
THE INTERIOR.  AT THE HEARING ON THE PROPOSAL A SPOKESMAN FOR THE
NATIONAL WILDLIFE FEDERATION URGED THAT EXECUTIVE ORDER NO. 8979
PRECLUDED THE ISSUANCE OF THE LEASES.  TRANSCRIPT OF HEARINGS BEFORE
THE HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, JULY 20 AND 25,
1956, LEASE OF PORTIONS OF KENAI NATIONAL MOOSE RANGE, PP. 17, 19, 24
26.  BUT SEE ID., PP. 35-36; LETTER, JULY 24, 1956, DEPUTY SOLICITOR,
DEPARTMENT OF THE INTERIOR, TO HON. E.L. BARTLETT, DELEGATE TO CONGRESS
FROM ALASKA, FOLLOWING ID., P. 30.  ON JULY 25, 1956, HOWEVER, THE
COMMITTEE'S CHAIRMAN ADVISED THE DIRECTOR OF THE FISH AND WILDLIFE
SERVICE THAT THE COMMITTEE UNANIMOUSLY HAD CONCLUDED THAT ISSUANCE OF
THE LEASES WOULD NOT BE DETRIMENTAL TO THE WILDLIFE VALUES OF THE MOOSE
RANGE, AND HAD CONCURRED IN THE PROPOSAL TO ISSUE THE LEASES.  (FN8) 

FOLLOWING THE COMMITTEE'S APPROVAL THE LEASES WERE ISSUED, AN
EXPLORATORY WELL WAS DRILLED AND OIL WAS DISCOVERED IN COMMERCIAL
QUANTITIES IN JULY 1957.  SEE REP. ALASKA GOV. 88 (1957); REP. SECY. 
INT. 356 (1957); REP. SECY.  INT.  104, 199, 258, 356 (1958).  THE
SWANSON RIVER LEASES SOON BECAME AGAIN A SUBJECT OF CONGRESSIONAL
CONCERN, WHEN THE SECRETARY OF THE INTERIOR - REALIZING THAT ALTHOUGH
HE HAD AUTHORITY TO ISSUE LEASES ON DRY LAND, HE LACKED SUCH AUTHORITY
WITH RESPECT TO LANDS BENEATH ALASKAN INLAND NAVIGABLE WATERS - ASKED
CONGRESS FOR AUTHORITY TO ISSUE LEASES ON ALASKAN WATER BOTTOMS, AND TO
ADD TO THE LEASES ALREADY ISSUED IN ALASKA AND TO APPLICATIONS PENDING
THERE THE WATER BOTTOMS WITHIN THEIR BOUNDARIES.  (FN9)  THE SENATE
COMMITTEE REPORTED FAVORABLY ON THE PROPOSED BILL, SAYING: 

"IN ALASKA, THERE IS AT THE PRESENT TIME ONLY ONE AREA WHICH IS NOW
SUBJECT TO THE MINERAL LEASING ACT WHERE OIL AND GAS IS KNOWN TO EXIST
IN PAYING QUANTITIES, THIS BEING ON THE KENAI PENINSULA AS PREVIOUSLY
DESCRIBED.  IF PRIOR TO THE EFFECTIVE DATE OF THIS ACT, THE PRODUCING
STRUCTURE ON THE KENAI IS DEFINED, THEN THE HOLDERS OF UPLAND LEASES IN
SUCH AREAS MIGHT BE FORCED TO COMPETE FOR AREAS BENEATH ADJACENT LAKES
AND STREAMS.  THE COMMITTEE FELT THAT THIS RESULT WOULD WORK TO THE
DISADVANTAGE OF THOSE LESSEES AND DEVELOPERS WHO HAVE GONE AHEAD AND
DEVELOPED THIS AREA  ...  ."  S. REP. NO. 1720, 85TH CONG., 2D SESS.,
P. 5. 

THE BILL WAS SUBSEQUENTLY ENACTED INTO LAW.  72 STAT. 322 (1958), 48
U.S.C. SEC. 456 AND 30 U.S.C. SEC. 251 (1958 ED.). 

MEANWHILE, THE CONTROVERSY OVER THE LEASING POLICIES TO BE FOLLOWED
IN WILDLIFE REFUGES WAS RESOLVED BY THE ADOPTION, ON JANUARY 8, 1958,
OF ANOTHER COMPLETE REVISION OF THE REGULATION.  23 FED. REG. 227, 43
CFR SEC. 192.9.  THE REVISION REPRESENTED A NEAR-TOTAL VICTORY FOR THE
CONSERVATIONISTS.  IT ALTOGETHER PROHIBITED OIL AND GAS LEASING, UNLESS
NECESSARY TO PREVENT DRAINING, IN WILDLIFE REFUGES - WITH TWO
EXCEPTIONS:  LANDS WITHDRAWN FOR A DUAL PURPOSE, AND WILDLIFE REFUGES
LOCATED IN ALASKA.  AS TO LANDS FALLING WITHIN THESE TWO EXCEPTED
CATEGORIES, THE BUREAU OF LAND MANAGEMENT AND THE FISH AND WILDLIFE
SERVICE WERE TO REACH AGREEMENTS SPECIFYING THE LANDS WHICH "SHALL NOT
BE SUBJECT TO OIL AND GAS LEASING" AND TO DECIDE ON PROVISIONS TO BE
REQUIRED IN LEASES ISSUED ON THE REMAINING LANDS.  THE AGREEMENTS WERE
TO BECOME EFFECTIVE UPON APPROVAL BY THE SECRETARY AND PUBLICATION IN
THE FEDERAL REGISTER.  THE REGULATION FURTHER PROVIDED THAT "ALL
PENDING OFFERS OR APPLICATIONS HERETOFORE FILED FOR OIL AND GAS LEASES
COVERING GAME RANGES, COORDINATION LANDS, AND ALASKA WILDLIFE AREAS,
WILL CONTINUE TO BE SUSPENDED UNTIL THE AGREEMENTS REFERRED TO  ...
SHALL HAVE BEEN COMPLETED," AND THAT NO NEW LEASE APPLICATIONS WOULD
"BE ACCEPTED FOR FILING UNTIL THE TENTH DAY AFTER THE AGREEMENTS  ...
ARE NOTED ON THE LAND OFFICE RECORDS." 

PURSUANT TO THE REGULATION, THERE WAS PUBLISHED IN THE FEDERAL
REGISTER ON AUGUST 2, 1958, AN ORDER OF THE SECRETARY ANNOUNCING THE
AGREEMENT REACHED WITH RESPECT TO THE MOOSE RANGE.  23 FED. REG. 5883. 
THE ORDER DECREED THAT CERTAIN LANDS WITHIN THE RANGE (ESSENTIALLY THE
SOUTHERN HALF) "ARE HEREBY CLOSED TO OIL AND GAS LEASING BECAUSE SUCH
ACTIVITIES WOULD BE INCOMPATIBLE WITH MANAGEMENT THEREOF FOR WILDLIFE
PURPOSES."  IT THEN PROVIDED: 

"THE BALANCE OF THE LANDS WITHIN THE KENAI NATIONAL MOOSE RANGE ARE
SUBJECT TO THE FILING OF OIL AND GAS LEASE OFFERS  ...  .  OFFERS TO
LEASE COVERING ANY OF THESE LANDS WHICH HAVE BEEN PENDING AND UPON
WHICH ACTION WAS SUSPENDED IN ACCORDANCE WITH THE REGULATION 43 CFR
192.9(D) WILL NOW BE ACTED UPON AND ADJUDICATED IN ACCORDANCE WITH THE
REGULATIONS. 

     *    *         *         *         * 

"  ...  LEASE OFFERS FOR LANDS WHICH HAVE NOT BEEN EXCLUDED FROM
LEASING WILL NOT BE ACCEPTED FOR FILING UNTIL THE TENTH DAY AFTER THE
AGREEMENT AND MAP ARE NOTED ON THE RECORDS OF THE LAND OFFICE ...  ." 
(FN10) 

THE AGREEMENT WAS NOTED IN THE ANCHORAGE LAND OFFICE ON AUGUST 4,
1958, AND 10 DAYS LATER RESPONDENTS FILED THEIR APPLICATIONS. 

SOON AFTER THE ISSUANCE OF THE REGULATION AND THE IMPLEMENTING ORDER,
THE PENDING APPLICATIONS WERE ACTED UPON; WITHIN THE NEXT TWO MONTHS,
294 LEASES COVERING 621,234 ACRES WERE ISSUED IN THE AREA SUBJECT TO
EXECUTIVE ORDER NO. 8979, IN RESPONSE TO APPLICATIONS (INCLUDING THOSE
OF THE GRIFFIN LESSEES) FILED IN 1954 AND 1955.  WHEN THESE FIGURES ARE
ADDED TO THOSE COVERING LEASES ISSUED PRIOR TO 1958 (PRIMARILY THOSE IN
THE SWANSON RIVER AREA), IT APPEARS THAT IN THE AREA SUBJECT TO
EXECUTIVE ORDER NO. 8979, THE SECRETARY ISSUED A TOTAL OF 331 LEASES
COVERING 696,680 ACRES ON APPLICATIONS FILED DURING THE PERIOD THE
COURT OF APPEALS HELD THAT THE AREA WAS CLOSED TO LEASING.  THUS, PRIOR
TO THE COMMENCEMENT OF THE INSTANT SUIT, THE SECRETARY HAD LEASED
SUBSTANTIALLY THE ENTIRE AREA IN CONTROVERSY; (FN11) THE SOLICITOR
GENERAL FURTHER ASSURES US THAT THE LESSEES AND THEIR ASSIGNEES HAD, IN
TURN, EXPENDED TENS OF MILLIONS OF DOLLARS IN THE DEVELOPMENT OF THE
LEASES. 

                      II. 

WHEN FACED WITH THE PROBLEM OF STATUTORY CONSTRUCTION, THIS COURT
SHOWS GREAT DEFERENCE TO THE INTERPRETATION GIVEN THE STATUTE BY THE
OFFICERS OR AGENCY CHARGED WITH ITS ADMINISTRATION.  "TO SUSTAIN THE
COMMISSION'S APPLICATION OF THIS STATUTORY TERM, WE NEED NOT FIND THAT
ITS CONSTRUCTION IS THE ONLY REASONABLE ONE, OR EVEN THAT IT IS THE
RESULT WE WOULD HAVE REACHED HAD THE QUESTION ARISEN IN THE FIRST
INSTANCE IN JUDICIAL PROCEEDINGS."  UNEMPLOYMENT COMM'N V. ARAGON, 329
U.S. 143, 153.  SEE ALSO, E.G., GRAY V. POWELL, 314 U.S. 402; UNIVERSAL
BATTERY CO. V. UNITED STATES, 281 U.S. 580, 583.  "PARTICULARLY IS THIS
RESPECT DUE WHEN THE ADMINISTRATIVE PRACTICE AT STAKE 'INVOLVES A
CONTEMPORANEOUS CONSTRUCTION OF A STATUTE BY THE MEN CHARGED WITH THE
RESPONSIBILITY OF SETTING ITS MACHINERY IN MOTION, OF MAKING THE PARTS
WORK EFFICIENTLY AND SMOOTHLY WHILE THEY ARE YET UNTRIED AND NEW.'" 
POWER REACTOR CO. V. ELECTRICIANS, 367 U.S. 396, 408.  WHEN THE
CONSTRUCTION OF AN ADMINISTRATIVE REGULATION RATHER THAN A STATUTE IS
IN ISSUE, DEFERENCE IS EVEN MORE CLEARLY IN ORDER. 

"SINCE THIS INVOLVES AN INTERPRETATION OF AN ADMINISTRATIVE
REGULATION A COURT MUST NECESSARILY LOOK TO THE ADMINISTRATIVE
CONSTRUCTION OF THE REGULATION IF THE MEANING OF THE WORDS USED IS IN
DOUBT  ...  .  THE ULTIMATE CRITERION IS THE ADMINISTRATIVE
INTERPRETATION, WHICH BECOMES OF CONTROLLING WEIGHT UNLESS IT IS
PLAINLY ERRONEOUS OR INCONSISTENT WITH THE REGULATION."  BOWLES V.
SEMINOLE ROCK CO., 325 U.S. 410, 413-414. 

IN THE INSTANT CASE, THERE IS NO STATUTORY LIMITATION INVOLVED. 
WHILE EXECUTIVE ORDER NO. 8979 WAS ISSUED BY THE PRESIDENT, HE SOON
DELEGATED TO THE SECRETARY FULL POWER TO WITHDRAW LANDS OR TO MODIFY OR
REVOKE ANY EXISTING WITHDRAWALS.  SEE EXECUTIVE ORDER, NO. 9146, 7 FED.
REG. 3067; EXECUTIVE ORDER NO. 9337, 8 FED. REG. 5516; EXECUTIVE ORDER
NO. 10355, 17 FED.  REG. 4831.  PUBLIC LAND ORDER NO. 487 WAS ISSUED BY
THE SECRETARY HIMSELF. 

MOREOVER, AS THE DISCUSSION IN SECTION I OF THIS OPINION
DEMONSTRATES, THE SECRETARY HAS CONSISTENTLY CONSTRUED EXECUTIVE ORDER
NO. 8979 AND PUBLIC LAND ORDER NO. 487 NOT TO BAR OIL AND GAS LEASES. 

"IT MAY BE ARGUED THAT WHILE THESE FACTS AND RULINGS PROVE A USAGE
THEY DO NOT ESTABLISH ITS VALIDITY.  BUT GOVERNMENT IS A PRACTICAL
AFFAIR INTENDED FOR PRACTICAL MEN.  BOTH OFFICERS, LAW-MAKERS AND
CITIZENS NATURALLY ADJUST THEMSELVES TO ANY LONG-CONTINUED ACTION OF
THE EXECUTIVE DEPARTMENT - ON THE PRESUMPTION THAT UNAUTHORIZED ACTS
WOULD NOT HAVE BEEN ALLOWED TO BE SO OFTEN REPEATED AS TO CRYSTALLIZE
INTO A REGULAR PRACTICE.  THAT PRESUMPTION IS NOT REASONING IN A CIRCLE
BUT THE BASIS OF A WISE AND QUIETING RULE THAT IN DETERMINING THE
MEANING OF A STATUTE OR THE EXISTENCE OF A POWER, WEIGHT SHALL BE GIVEN
TO THE USAGE ITSELF - EVEN WHEN THE VALIDITY OF THE PRACTICE IS THE
SUBJECT OF INVESTIGATION."  UNITED STATES V. MIDWEST OIL CO., 236 U.S.
459, 472-473. 

THE SECRETARY'S INTERPRETATION HAD, LONG PRIOR TO RESPONDENTS'
APPLICATIONS, BEEN A MATTER OF PUBLIC RECORD AND DISCUSSION.  THE
AGREEMENT WORKED OUT WITH THE HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES IN 1956, AND THE APPROVAL OF THE SWANSON RIVER LEASES
PURSUANT THERETO, THOUGH PROBABLY CONSTITUTING NO "LEGISLATIVE
RATIFICATION" IN ANY FORMAL SENSE, (FN12) SERVE TO DEMONSTRATE THE
NOTORIETY OF THE SECRETARY'S CONSTRUCTION, AND THEREBY DEFEAT ANY
POSSIBLE CLAIM OF DETRIMENTAL RELIANCE UPON ANOTHER INTERPRETATION. 
FINALLY, ALMOST THE ENTIRE AREA COVERED BY THE ORDERS IN ISSUE HAS BEEN
DEVELOPED, AT VERY GREAT EXPENSE, IN RELIANCE UPON THE SECRETARY'S
INTERPRETATION.  IN MCLAREN V. FLEISCHER, 256 U.S. 477, 480-481, IT WAS
HELD: 

"IN THE PRACTICAL ADMINISTRATION OF THE ACT THE OFFICERS OF THE LAND
DEPARTMENT HAVE ADOPTED AND GIVEN EFFECT TO THE LATTER VIEW.  THEY
ADOPTED IT BEFORE THE PRESENT CONTROVERSY AROSE OR WAS THOUGHT OF, AND,
EXCEPT FOR A DEPARTURE SOON RECONSIDERED AND CORRECTED, THEY HAVE
ADHERED TO AND FOLLOWED IT EVER SINCE.  MANY OUTSTANDING TITLES ARE
BASED UPON IT AND MUCH CAN BE SAID IN SUPPORT OF IT.  IF NOT THE ONLY
REASONABLE CONSTRUCTION OF THE ACT, IT IS AT LEAST AN ADMISSIBLE ONE. 
IT THEREFORE COMES WITHIN THE RULE THAT THE PRACTICAL CONSTRUCTION
GIVEN TO AN ACT OF CONGRESS, FAIRLY SUSCEPTIBLE OF DIFFERENT
CONSTRUCTIONS, BY THOSE CHARGED WITH THE DUTY OF EXECUTING IT IS
ENTITLED TO GREAT RESPECT AND, IF ACTED UPON FOR A NUMBER OF YEARS,
WILL NOT BE DISTURBED EXCEPT FOR COGENT REASONS." 

IF, THEREFORE, THE SECRETARY'S INTERPRETATION IS NOT UNREASONABLE, IF
THE LANGUAGE OF THE ORDERS BEARS HIS CONSTRUCTION, WE MUST REVERSE THE
DECISION OF THE COURT OF APPEALS.  (FN13)

                       III. 

EXECUTIVE ORDER NO. 8979, 6 FED. REG. 6471, PROVIDED: 

"NONE OF THE ABOVE-DESCRIBED LANDS EXCEPTING A DESCRIBED AREA SHALL
BE SUBJECT TO SETTLEMENT, LOCATION, SALE, OR ENTRY, OR OTHER
DISPOSITION (EXCEPT FOR FISH TRAP SITES) UNDER ANY OF THE PUBLIC-LAND
LAWS APPLICABLE TO ALASKA, OR TO CLASSIFICATION AND LEASE UNDER THE
PROVISIONS OF THE ACT OF JULY 3, 1926, ENTITLED 'AN ACT TO PROVIDE FOR
THE LEASING OF PUBLIC LANDS IN ALASKA FOR FUR FARMING, AND FOR OTHER
PURPOSES', 44 STAT. 821, U.S.C., TITLE 48, SECS. 360-361, OR THE ACT OF
MARCH 4, 1927, ENTITLED 'AN ACT TO PROVIDE FOR THE PROTECTION,
DEVELOPMENT, AND UTILIZATION OF THE PUBLIC LANDS IN ALASKA BY
ESTABLISHING AN ADEQUATE SYSTEM FOR GRAZING LIVESTOCK THEREON', 44
STAT. 1452, U.S.C., TITLE 48, SECS. 471-471O  ...  ." 

"SETTLEMENT," "LOCATION," "SALE" AND "ENTRY" ARE ALL TERMS
CONTEMPLATING TRANSFER OF TITLE TO THE LANDS IN QUESTION.  IT WAS
THEREFORE REASONABLE FOR THE SECRETARY TO CONSTRUE "OR OTHER
DISPOSTION" TO ENCOMPASS ONLY DISPOSITIONS WHICH, LIKE THE FOUR
ENUMERATED, CONVEY OR LEAD TO THE CONVEYANCE OF THE TITLE OF THE UNITED
STATES - FOR EXAMPLE, "GRANTS" AND "ALLOTMENTS."  CF. OPINION OF THE
SOLICITOR, 48 I.D. 459 (1921).  (FN14)  AN OIL AND GAS LEASE DOES NOT
VEST TITLE TO THE LANDS IN THE LESSEE.  SEE BOESCHE V. UDALL, 373 U.S.
472, 477-478.  MOREOVER, THE TERM "PUBLIC-LAND LAWS" IS ORDINARILY USED
TO REFER TO STATUTES GOVERNING THE ALIENATION OF PUBLIC LAND, AND
GENERALLY IS DISTINGUISHED FROM BOTH "MINING LAWS," REFERRING TO
STATUTES GOVERNING THE MINING OF HARD MINERALS ON PUBLIC LANDS, AND
"MINERAL LEASING LAWS," A TERM USED TO DESIGNATE THAT GROUP OF STATUTES
GOVERNING THE LEASING OF PUBLIC LANDS FOR GAS AND OIL.  COMPARE TITLE
43 U.S.C., PUBLIC LANDS, WITH TITLE 30 U.S.C., MINERAL LANDS AND
MINING.  (FN15)    THE REFERENCE IN EXECUTIVE ORDER NO. 8979 TO THE
1926 AND 1927 STATUTES ALSO LENDS SUPPORT TO THE SECRETARY'S
INTERPRETATION.  FOR BOTH STATUTES RELATE TO LEASING RATHER THAN
ALIENATION OF TITLE; IT WOULD BE REASONABLE TO INFER FROM THEIR
SPECIFIC ADDITION THAT "DISPOSITION" WAS NOT INTENDED TO ENCOMPASS
LEASING.  (FN16)  THE SECRETARY ALSO MIGHT REASONABLY HAVE BEEN
INFLUENCED BY A BELIEF THAT IN VIEW OF HIS OVERRIDING DISCRETIONARY
AUTHORITY TO REFUSE TO ISSUE AN OIL AND GAS LEASE ON A GIVEN TRACT
WHENEVER HE THOUGH THAT GRANTING A LEASE WOULD UNDERCUT THE PURPOSES OF
THE WITHDRAWAL, INCLUSION OF SUCH LEASES IN THE WITHDRAWAL ORDER WOULD
HAVE BEEN UNNECESSARY.  CF. HALEY V. SEATON, 108 U.S. APP.  D.C. 257,
281 F.2D 620 (1960). 

RESPONDENTS' RELIANCE UPON WILBUR V. UNITED STATES EX REL. BARTON, 60
APP. D.C. 11, 46 F.2D 217 (1930), AFF'D SUB NOM. UNITED STATES EX REL.
MCLENNAN V. WILBUR, 283 U.S. 414, IS MISPLACED.  INVOLVED IN WILBUR WAS
THE MEANING OF LANGUAGE CONTAINED IN THE PICKETT ACT, 36 STAT. 847
(1910), 43 U.S.C. SEC. 141 (1958 ED.). 

"THE PRESIDENT MAY, AT ANY TIME IN HIS DISCRETION, TEMPORARILY
WITHDRAW FROM SETTLEMENT, LOCATION, SALE, OR ENTRY ANY OF THE PUBLIC
LANDS OF THE UNITED STATES INCLUDING THE DISTRICT OF ALASKA  ... ." 

IT IS TRUE THAT THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT SQUARELY HELD THIS LANGUAGE TO BE SUFFICIENT TO AUTHORIZE
WITHDRAWALS FROM OIL AND GAS LEASING.  MOREOVER, THIS COURT AFFIRMED,
ALBEIT ON AN ALTERNATIVE THEORY:  THAT THE MINERAL LEASING ACT MERELY
AUTHORIZED AND DID NOT COMPEL THE ISSUANCE OF PROSPECTING PERMITS.  283
U.S., AT 419.  HOWEVER, A WORD OF HISTORY WILL PLACE WILBUR IN CONTEXT
AND THEREBY DEMONSTRATE ITS IRREVELANCE TO THE PROBLEM HERE.  PRIOR TO
1920, OIL AND GAS RIGHTS IN PUBLIC LANDS WERE ACQUIRED IN THE SAME WAY
AS RIGHTS IN OTHER MINERALS - BY A FORM OF "LOCATION."  ONE STAKED OUT
A LOCATION AND PROSPECTED FOR OIL OR OTHER MINERALS; UPON MAKING A
DISCOVERY, HE BECAME ENTITLED TO A PATENT TO THE LAND AS WELL AS THE
MINERALS.  IN 1909, RESPONDING TO RAPID RESERVE DEPLETION IN CERTAIN
AREAS, THE INTERIOR DEPARTMENT ISSUED AN ORDER PURSUANT TO PRESIDENTIAL
AUTHORIZATION: 

"IN AID OF PROPOSED LEGISLATION AFFECTING THE USE AND DISPOSITION OF
THE PETROLEUM DEPOSITS ON THE PUBLIC DOMAIN, ALL PUBLIC LANDS IN A
DEFINED AREA OF OVER 3 MILLION ACRES IN CALIFORNIA AND WYOMING ARE
HEREBY TERMPORARILY WITHDRAWN FROM ALL FORMS OF LOCATION, SETTLEMENT,
SELECTION, FILING, ENTRY, OR DISPOSAL UNDER THE MINERAL OR NONMINERAL
PUBLIC LAND LAWS  ...  ."  U.S. GEOLOGICAL SURVEY, BULL.  623, H.R.
DOC. NO. 868, 64TH CONG., 1ST SESS., 135 (1916); QUOTED, 236 U.S., AT
467. 

THE POWER OF THE EXECUTIVE TO MAKE THE WITHDRAWAL WAS UPHELD BY THIS
COURT IN 1915 IN UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459.  IN
THE MEANTIME, HOWEVER, CONGRESS HAD, PURSUANT TO THE PRESIDENT'S
REQUEST, SOUGHT TO REMOVE ALL DOUBTS ABOUT THE LEGALITY OF SUCH ORDERS
BY GRANTING TO HIM, IN THE PICKETT ACT, DISCRETIONARY AUTHORITY TO
WITHDRAW PUBLIC LANDS FROM "SETTLEMENT, LOCATION, SALE, OR ENTRY." 

THE MINERAL LEASING ACT OF 1920 CHANGED THE PROCEDURE FOR ACQUIRING
OIL AND GAS RIGHTS IN PUBLIC LANDS:  THE SECRETARY WAS EMPOWERED TO
ISSUE PROSPECTING PERMITS AND REQUIRED, IN THE EVENT A DISCOVERY WAS
MADE UNDER THE PERMIT, TO ISSUE A LEASE WHICH ENTITLED THE LESSEE TO
EXTRACT THE MINERAL, BUT GAVE HIM NO RIGHT IN THE LAND ITSELF.  (FN17)
FROM 1920 ON, THEREFORE, THE LANGUAGE OF THE PICKETT ACT NO LONGER
TECHNICALLY ENCOMPASSED LEASING.  NONETHELESS, IT WAS CLEAR THAT THE
ACT HAD BEEN SPECIFICALLY DESIGNED TO LEGITIMIZE ORDERS LIKE THE 1909
WITHDRAWAL ORDER.  THE COURT OF APPEALS REASONABLY CONCLUDED IN WILBUR
THAT THE FACT THAT CONGRESS HAD IN 1920 CHANGED THE PROCEDURE - FROM
"LOCATION" TO "LEASING" - FOR ACQUISITION OF OIL AND GAS RIGHTS
AFFORDED NO REASON FOR CONCLUDING THAT THEY HAD THEREBY INTENDED TO CUT
BACK THE POWER GRANTED IN 1910.  60 APP. D.C., AT 14-15, 46 F.2D, AT
220-221.  THUS NEITHER THAT HOLDING BY THE COURT OF APPEALS NOR THIS
COURT'S AFFIRMANCE IN ANY WAY CASTS DOUBT UPON THE REASONABLENESS OF
THE SECRETARY'S INTERPRETATION OF THE ORDERS AT BAR, WHICH WERE DRAFTED
LONG AFTER THE MINERAL LEASING ACT HAD DONE AWAY WITH LOCATION AS A
MEANS OF ACQUIRING OIL AND GAS RIGHTS. 

THE PLACEMENT OF THE FISH TRAP EXCEPTION - "(EXCEPT FOR FISH TRAP
SITES)" - A PHRASE ADMITTEDLY NOT RELATING TO ALIENATION OF TITLE TO
LAND, DOES TEND TO CUT AGAINST THE SECRETARY'S INTERPRETATION OF
EXECUTIVE ORDER NO. 8979.  HOWEVER, IT APPEARS THAT THE EXCEPTION WAS
DESIGNED TO ASSURE THE ALASKANS, WHOSE LIVELIHOOD IS LARGELY DEPENDENT
ON THE SALMON CATCH, THAT THEY COULD CONTINUE - DESPITE THE ORDER - TO
USE FISH TRAPS.  CF.  ORGANIZED VILLAGE OF KAKE V. EGAN, 369 U.S. 60. 
SINCE IT WAS A REASSURANCE NOT TECHNICALLY NECESSARY AND THEREFORE NOT
FUNCTIONALLY RELATED TO ANY PART OF THE REGULATION, IT IS NO SURPRISE
TO FIND IT CARELESSLY PLACED.  COMPARE EXECUTIVE ORDER NO. 8857, 6 FED.
REG.  4287, ESTABLISHING THE KODIAK NATIONAL WILDLIFE REFUGE.  WE DO
NOT THINK THE POSITION OF THE FISH TRAP EXCEPTION IS SUFFICIENT TO
JUSTIFY A COURT'S OVERTURNING THE SECRETARY'S CONSTRUCTION AS
UNREASONABLE. 

PUBLIC LAND ORDER NO. 487 WITHDREW THE LANDS IT COVERED FROM
"SETTLEMENT, LOCATION, SALE OR ENTRY," BUT CONTAINED NO REFERENCE TO
"OTHER DISPOSITION."  NOR DID IT CONTAIN ANYTHING ANALOGOUS TO THE FISH
TRAP EXCEPTION.  THE REASONABLENESS OF THE SECRETARY'S INTERPRETATION
OF PUBLIC LAND ORDER NO. 487 THEREFORE FOLLOWS A FORTIORI FROM THE
REASONABLENESS OF HIS CONSTRUCTION OF EXECUTIVE ORDER NO. 8979. 
REVERSED. 

FN1  LEASE OFFERS ARE PROCESSED IN THE ORDER OF FILING AND A LEASE ON
A GIVEN TRACT IS ISSUED AS SOON AS AN ACCEPTABLE OFFER IS REACHED.  IN
THE INSTANT CASE, THE SECRETARY'S ORDER OF AUGUST 2, 1958, 23 FED. REG.
5883, DIRECTED THAT ALL LEASE OFFERS FILED WITHIN 10 DAYS OF AUGUST 14
1958, WOULD BE TREATED AS SIMULTANEOUSLY FILED, AND THAT A PUBLIC
DRAWING WOULD BE HELD TO DETERMINE THE PRIORITIES AMONG THEM.  SEE 43
CFR SEC. 295.8 (1964).  THE DRAWING WAS HELD ON SEPTEMBER 4, 1959, AND
RESPONDENTS PREVAILED.  THUS THEIR OFFERS WERE PROCESSED BEFORE ALL
OTHER OFFERS FILED BETWEEN AUGUST 14 AND AUGUST 24,1958; UPON
PROCESSING, HOWEVER, IT WAS DISCOVERED THAT THE LAND WAS ALREADY
COVERED BY THE LEASES ISSUED TO THE GRIFFIN LESSEES. 

FN2  PUBLIC LAND ORDER NO. 487 ENCOMPASSED THE LAND FOR WHICH
RESPONDENT COYLE APPLIED; THE LAND FOR WHICH THE OTHER NINE RESPONDENTS
FILED IS COVERED BY EXECUTIVE ORDER NO. 8979. 

FN3  SECTION 1 OF THE ACT EXCLUDES "LANDS ACQUIRED UNDER THE ACT
KNOWN AS THE APPALACHIAN FOREST ACT, APPROVED MARCH 1, 1911 (36 STAT.
961), AND THOSE IN INCORPORATED CITIES, TOWNS, AND VILLAGES AND IN
NATIONAL PARKS AND MONUMENTS, THOSE ACQUIRED UNDER OTHER ACTS
SUBSEQUENT TO FEBRUARY 25, 1920, AND LANDS WITHIN THE NAVAL PETROLEUM
AND OIL-SHALE RESERVES, EXCEPT AS HEREINAFTER PROVIDED ...  ," 41 STAT.
437-438 (1920), AS AMENDED, 60 STAT. 950 (1946), 30 U.S.C. SEC. 181
(1958 ED.). 

FN4  SEE PUBLIC LAND ORDER NO. 751 OF AUGUST 29, 1951, 16 FED. REG.
9044, WHICH WITHDREW 160 ACRES FOR THE CIVIL AERONAUTICS
ADMINISTRATION, AND 88.86 ACRES FOR TOWNSITE PURPOSES, AND PUBLIC LAND
ORDER NO. 778 OF DECEMBER 29, 1951, 17 FED. REG. 159, WHICH WITHDREW A
NUMBER OF TRACTS, AGGREGATING 4,280 ACRES, FOR THE USE OF THE ARMY. 

FN5  SEE MEMORANDUM, FEBRUARY 15, 1954, DIRECTOR, BUREAU OF LAND
MANAGEMENT, TO ASSISTANT SECRETARY OF THE INTERIOR; MEMORANDUM, AUGUST
12, 1955, DIRECTOR, BUREAU OF LAND MANAGEMENT, TO AREA ADMINISTRATOR,
AREA 4 (ALASKA); 102 CONG. REC. A6582. 

FN6  IN HIS REPORT FOR THE FISCAL YEAR ENDING JUNE 30, 1955, THE
GOVERNOR OF ALASKA STATED: 

"RESIDENTS OF ALASKA AND MAJOR OIL COMPANIES HAVE CONTINUED TO FILE
LEASE APPLICATIONS AND SEND EXPLORATORY PARTIES INTO VARIOUS PARTS OF
THE TERRITORY.  THE KENAI MOOSE RESERVE ON THE KENAI PENINSULA IS
COVERED WITH 325 LEASE APPLICATIONS AWAITING DECISION OF THE SECRETARY
OF THE INTERIOR AS TO WHAT STIPULATIONS FOR THE PROTECTION OF WILDLIFE
SHOULD BE INSERTED IN LEASES, IF THEY ARE ISSUED." 

REP. ALASKA GOV. 60-61 (1955); SEE ALSO REP. SECY.  INT.  65 (1953). 

FN7  IT APPEARS THAT THE BUREAU REGARDED THE AMENDED REGULATIONS AS
AUTOMATICALLY VACATING THE 1953 SUSPENSION ORDER; HOWEVER, UPON THE
ALMOST IMMEDIATE INTRODUCTION IN CONGRESS OF BILLS FURTHER TO RESTRICT
LEASING IN WILDLIFE REFUGES, THE FIELD OFFICES WERE DIRECTED ONCE AGAIN
TO WITHHOLD FINAL ACTION ON LEASE APPLICATIONS.  SEE RICHARD K. TODD ET
AL., 68 I.D.  291, 298 (1961). 

IN FURTHER SUPPORT OF THE CLAIM THAT THE 1955 REGULATION IS WORTHLESS
AS AN INDICATION OF THE PRE-EXISTING STATUS OF THE LANDS COVERED
THEREBY, RESPONDENTS URGE THAT APPENDIX B LISTED "WILDLIFE REFUGES
WHICH WERE CLOSED BY THE TERMS OF THE ORDERS CREATING THEM."  HOWEVER,
OF THE 176 REFUGES LISTED IN APPENDIX B, RESPONDENTS POINT TO ONLY ONE:
THE SALT PLAINS IN OKLAHOMA.  MOREOVER, ONLY A SMALL PART OF THE SALT
PLAINS (543 ACRES OUT OF OVER 30,000) WAS SPECIFICALLY WITHDRAWN FROM
APPROPRIRATION UNDER THE MINING AND MINERAL-LEASING LAWS.  PUBLIC LAND
ORDER NO. 144, 8 FED. REG. 9430.  IT IS THEREFORE DOUBTFUL THAT A
SIMPLE LISTING IN APPENDIX B OF THE "SALT PLAINS," LARGE PARTS OF WHICH
WERE ADMITTEDLY OPEN TO LEASING PRIOR TO 1955, WAS INTENDED TO OPEN THE
SMALL AREA CLOSED BY PUBLIC LAND ORDER NO. 144. 

FN8  RESPONDENTS SEEK TO CAPITALIZE ON THE FACT THAT ALTHOUGH THE
SWANSON RIVER UNIT WAS NOT LOCATED IN ANY OF THE AREAS DESIGNATED IN
APPENDIX B OF THE 1955 REGULATION, THE APPLICANTS SUBMITTED, AND
OBTAINED SERVICE APPROVAL OF, A DETAILED OPERATING PROGRAM FOR THE
UNIT.  THERE ARE AT LEAST TWO POSSIBLE EXPLANATIONS FOR THE SUBMISSION
OF THE PLAN.  FIRST, THE FISH AND WILDLIFE SERVICE COULD AT ANY TIME
DESIGNATE AREAS NOT LISTED IN APPENDIX B IN WHICH LEASING "MIGHT
SERIOUSLY IMPAIR OR DESTROY" CONSERVATION PURPOSES AND ACCORDINGLY
REQUIRE ADVANCE APPROVAL OF OPERATING PROGRAMS FOR THEM.  SUBMISSION OF
A PLAN AS TO THE SWANSON RIVER UNIT MIGHT HAVE BEEN REGARDED AS A MEANS
OF INSURING THAT THE SERVICE WOULD NOT SO DESIGNATE THE AREA.  SECOND,
THE SECRETARY HAD DIRECTED HIS SUBORDINATES TO WITHHOLD FINAL ACTION ON
LEASE APPLICATIONS PENDING A FURTHER REVISION OF THE REGULATIONS.  THE
APPLICANTS MAY HAVE SUBMITTED THE PLAN IN ORDER TO PERSUADE THE
DEPARTMENT AND THE HOUSE COMMITTEE THAT THE PROPOSED LEASING WAS
CONSISTENT NOT ONLY WITH EXISTING REGULATIONS BUT ALSO WITH ANY THAT
WERE LIKELY TO BE ADOPTED. 

FN9  IN THE HEARINGS BEFORE THE SENATE COMMITTEE ON INTERIOR AND
INSULAR AFFAIRS ON THE PROPOSED BILL, MR. GORDON GOODWIN, ATTORNEY FOR
AMICUS CURIAE RICHFIELD OIL CORPORATION, TESTIFIED: 

"WELL, WE HAVE PENDING, AND HAVE HAD FOR 2 OR 3 OR MORE YEARS,
APPLICATIONS FOR LEASES IN THE KENAI MOOSE RANGE, AND A FEW LEASES WERE
ISSUED IN THERE, AND THAT IS WHERE THE DISCOVERY WAS MADE.  BUT,
SHORTLY AFTER THAT TIME, THE SECRETARY SUSPENDED ALL LEASING IN THE
MOOSE RANGE ...  AND HE HAS NEVER LIFTED IT YET  ...  .  SO WE HAVE NOT
BEEN ABLE TO DO MUCH BUSINESS UP THERE EXCEPT TO A VERY LIMITED
EXTENT." 

HEARINGS BEFORE THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS
ON H.R. 8054, 85TH CONG., 2D SESS., P. 77. 

FN10  IN ANNOUNCING THE ORDER, THE SECRETARY WARNED THAT THERE WOULD
BE LITTLE LAND AVAILABLE TO NEW APPLICANTS:  "MOST OF THESE LANDS ARE
NOW COVERED BY APPLICATIONS THAT WILL BE ADJUDICATED UNDER THE
REGULATIONS OF THE DEPARTMENT."  DEPARTMENT OF THE INTERIOR PRESS
RELEASE, JULY 25, 1958. 

RESPONDENTS POINT TO THE FACT THAT IN A PRESS RELEASE DATED JANUARY
29, 1958, ANNOUNCING THE FORTHCOMING (AUGUST) ORDER, THE SECRETARY HAD
INDICATED THAT HE WAS "OPENING" A PART OF THE MOOSE RANGE TO LEASING. 
THE CHOICE OF THIS TERM IS WHOLLY UNDERSTANDABLE IN VIEW OF THE FACTS
THAT GENERAL INSTRUCTIONS TO LOCAL OFFICES NOT TO TAKE FINAL ACTION ON
LEASE APPLICATIONS HAD BEEN OUTSTANDING SINCE 1953, AND THAT THE
REGULATIONS OF JANUARY 8, 1958, HAD PROVIDED THAT NO NEW APPLICATIONS
WOULD BE ACCEPTED FOR FILING UNTIL A SUBSEQUENT ORDER WAS ISSUED
SPECIFYING THE LANDS WHICH WOULD NOT BE SUBJECT TO LEASING.  THEREFORE,
THE ORDER OF AUGUST 2, 1958, DID, IN THESE TWO SENSES, "OPEN" THE RANGE
TO LEASING. 

FN11  IN THE AREA EXCEPTED FROM EXECUTIVE ORDER NO. 8979 BUT
ENCOMPASSED BY PUBLIC LAND ORDER NO. 487, THE TOTAL NUMBER OF LEASES
ISSUED ON APPLICATIONS FILED BEFORE THE REVOCATION OF THE LATTER ORDER
WAS 74 COVERING 116,878 ACRES. 

FN12  SEE EX PARTE ENDO, 323 U.S. 283, 303, N. 24; BOESCHE V. UDALL,
373 U.S. 472, 482-483; CF. PETERS V. HOBBY, 349 U.S. 331, 345; BUT CF.
BROOKS V. DEWAR, 313 U.S. 354, 360-361. 

FN13  THE FAILURE OF THE COURT BELOW TO ATTACH PROPER SIGNIFICANCE TO
THE ADMINISTRATIVE PRACTICE SEEMS TO BE ATTRIBUTABLE TO THE FACT THAT
IT WAS MISINFORMED CONCERNING THAT PRACTICE.  THE RESPONDENTS' BRIEF IN
THE COURT OF APPEALS STATED THAT "NO LEASES ISSUED FOR ANY LANDS WITHIN
THE KENAI RANGE BETWEEN 1941 AND 1958" (P. 30), AND THAT "THE DISCOVERY
AS WELL AS THE INCREASED ACTIVITY WERE IN AREAS OF THE PENINSULA
OUTSIDE OF THE KENAI NATIONAL MOOSE RANGE" (P. 40). 

FN14  THIS VIEW IS TAKEN IN HOFFMAN, OIL AND GAS LEASING ON THE
PUBLIC DOMAIN, P. 33 (1951). 

FN15  REFERENCE TO THE LANGUAGE OF OTHER WITHDRAWAL ORDERS IS NOT
VERY FRUITFUL.  AMICI CURIAE LIST 173 EXECUTIVE AND PUBLIC LAND ORDERS
ISSUED BETWEEN 1940 AND 1952 WHICH CONTAINED LANGUAGE EXPRESSLY BARRING
MINERAL LEASING.  BRIEF FOR MARATHON OIL CO. AND UNION OIL CO. OF
CALIFORNIA AS AMICI CURIAE, PP. 6A-7A.  HOWEVER, RESPONDENTS LIST 146
ORDERS ISSUED BETWEEN 1936 AND 1959 EXPRESSLY PERMITTING MINERAL
LEASING.  BRIEF FOR RESPONDENTS, PP. 7A-10A. 

FN16  THE COURT OF APPEALS SOUGHT TO EXPLAIN THE REFERENCE TO THE
1926 AND 1927 ACTS BY CONSTRUING THE PHRASE "ANY OF THE PUBLIC-LAND
LAWS APPLICABLE TO ALASKA" TO MEAN LAWS APPLICABLE BOTH THROUGHOUT THE
COUNTRY AND IN ALASKA, AND OPINED THAT THE 1926 AND 1927 ACTS WERE
SPECIFICALLY ADDED BECAUSE THEY HAD APPLICATION ONLY IN ALASKA. 
HOWEVER, THE SECRETARY'S INTERPRETATION OF "ANY OF THE PUBLIC-LAND LAWS
APPLICABLE TO ALASKA" (AS INCLUDING, INTER ALIA, LAWS RELATING TO
PUBLIC LANDS LOCATED ONLY IN ALASKA) IS AT LEAST AS NATURAL AS THE
COURT OF APPEALS' INTERPRETATION (LIMITING THE PHRASE TO LAWS
APPLICABLE THROUGHOUT THE COUNTRY) AND IS BEYOND CAVIL A "REASONABLE"
INTERPRETATION, WHICH IS THE TEST THE COURT OF APPEALS SHOULD HAVE BEEN
APPLYING.  MOREOVER, THE COURT OF APPEALS' CONCLUSION THAT
"DISPOSITION" WAS MEANT TO INCLUDE LEASING RENDERS THE WORDS "OR TO
CLASSIFICATION AND LEASE," INITIATING THE REFERENCE TO THE ACTS OF 1926
AND 1927, SUPERFLUOUS. 

FN17  IN 1935, THE PROSPECTING PERMIT PROCEDURE WAS ELIMINATED AND
THE PRESENT DIRECT LEASING PROCEDURE SUBSTITUTED.  ACT OF AUGUST 21,
1935, 49 STAT. 676-677, 30 U.S.C. SECS.  223, 226 (1958 ED.). 

MR. JUSTICE DOUGLAS AND MR. JUSTICE HARLAN TOOK NO PART IN THE
DECISION OF THIS CASE. 
..END :



SINGER V. UNITED STATES 380 U.S. 24 


NO. 42.  ARGUED NOVEMBER 18, 1964.  - DECIDED MARCH 1, 1965.  - 326 F.2D
132, AFFIRMED. 


PETITIONER, A DEFENDANT IN A FEDERAL CRIMINAL MAIL FRAUD CASE, CLAIMS
THAT HE HAD AN ABSOLUTE RIGHT TO BE TRIED BY A JUDGE ALONE IF HE
CONSIDERED SUCH A TRIAL TO BE TO HIS ADVANTAGE.  HELD: FEDERAL RULE OF
CRIMINAL PROCEDURE 23(A) SETS FORTH A REASONABLE PROCEDURE GOVERNING
PROFFERED WAIVERS OF JURY TRIALS.  A DEFENDANT'S ONLY CONSTITUTIONAL
RIGHT CONCERNING THE METHOD OF TRIAL IS TO AN IMPARTIAL TRIAL BY JURY. 
ALTHOUGH HE MAY WAIVE HIS RIGHT TO TRIAL BY JURY, PATTON V. UNITED
STATES, 281 U.S. 276, THERE IS NO CONSTITUTIONAL IMPEDIMENT TO
CONDITIONING A WAIVER OF THIS RIGHT ON THE CONSENT OF THE PROSECUTING
ATTORNEY AND THE TRIAL JUDGE WHEN, IF EITHER REFUSES TO CONSENT, THE
RESULT IS THAT THE DEFENDANT IS SUBJECT TO AN IMPARTIAL TRIAL BY JURY -
THE VERY THING THAT THE CONSTITUTION GUARANTEES HIM.  PP. 24-38. 

SINGER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

RULE 23(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES: 

"CASES REQUIRED TO BE TRIED BY JURY SHALL BE SO TRIED UNLESS THE
DEFENDANT WAIVES A JURY TRIAL IN WRITING WITH THE APPROVAL OF THE COURT
AND THE CONSENT OF THE GOVERNMENT." 

PETITIONER CHALLENGES THE PERMISSIBILITY OF THIS RULE, ARGUING THAT
THE CONSTITUTION GIVES A DEFENDANT IN A FEDERAL CRIMINAL CASE THE RIGHT
TO WAIVE A JURY TRIAL WHENEVER HE BELIEVES SUCH ACTION TO BE IN HIS
BEST INTEREST, REGARDLESS OF WHETHER THE PROSECUTION AND THE COURT ARE
WILLING TO ACQUIESCE IN THE WAIVER. 

PETITIONER WAS CHARGED IN A FEDERAL DISTRICT COURT WITH 30
INFRACTIONS OF THE MAIL FRAUD STATUTE, 18 U.S.C. SEC. 1341 (1958 ED.). 
THE GIST OF THE INDICTMENT WAS THAT HE USED THE MAILS TO DUPE AMATEUR
SONGWRITERS INTO SENDING HIM MONEY FOR THE MARKETING OF THEIR SONGS. 
ON THE OPENING DAY OF TRIAL PETITIONER OFFERED IN WRITING TO WAIVE A
TRIAL BY JURY "FOR THE PURPOSE OF SHORTENING THE TRIAL."  (FN1)  THE
TRIAL COURT WAS WILLING TO APPROVE THE WAIVER, BUT THE GOVERNMENT
REFUSED TO GIVE ITS CONSENT.  PETITIONER WAS SUBSEQUENTLY CONVICTED BY
A JURY ON 29 OF THE 30 COUNTS AND THE COURT OF APPEALS FOR THE NINTH
CIRCUIT AFFIRMED.  WE GRANTED CERTIORARI, 377 U.S. 903. 

PETITIONER'S ARGUMENT IS THAT A DEFENDANT IN A FEDERAL CASE HAS NOT
ONLY AN UNCONDITIONAL CONSTITUTIONAL RIGHT, GUARANTEED BY ART. III,
SEC. 2, AND THE SIXTH AMENDMENT, (FN2) TO A TRIAL BY JURY, BUT ALSO A
CORRELATIVE RIGHT TO HAVE HIS CASE DECIDED BY A JUDGE ALONE IF HE
CONSIDERS SUCH A TRIAL TO BE TO HIS ADVANTAGE.  HE CLAIMS THAT AT
COMMON LAW THE RIGHT TO REFUSE A JURY TRIAL PRECEDED THE RIGHT TO
DEMAND ONE, AND THAT BOTH BEFORE AND AT THE TIME OUR CONSTITUTION WAS
ADOPTED CRIMINAL DEFENDANTS IN THIS COUNTRY HAD THE RIGHT TO WAIVE A
JURY TRIAL.  ALTHOUGH THE CONSTITUTION DOES NOT IN TERMS GIVE
DEFENDANTS AN OPTION BETWEEN DIFFERENT MODES OF TRIAL, PETITIONER
ARGUES THAT THE PROVISIONS RELATING TO JURY TRIAL ARE FOR THE
PROTECTION OF THE ACCUSED.  PETITIONER FURTHER URGES THAT SINCE A
DEFENDANT CAN WAIVE OTHER CONSTITUTIONAL RIGHTS WITHOUT THE CONSENT OF
THE GOVERNMENT, HE MUST NECESSARILY HAVE A SIMILAR RIGHT TO WAIVE A
JURY TRIAL AND THAT THE CONSTITUTION'S GUARANTEE OF A FAIR TRIAL GIVES
DEFENDANTS THE RIGHT TO SAFEGUARD THEMSELVES AGAINST POSSIBLE JURY
PREJUDICE BY INSISTING ON A TRIAL BEFORE A JUDGE ALONE.  TURNING HIS
ATTENTION TO RULE 23(A), PETITONER CLAIMS THAT THE FIFTH, SIXTH, NINTH,
AND TENTH AMENDMENTS ARE VIOLATED BY PLACING CONDITIONS ON THE ABILITY
TO WAIVE TRIAL BY JURY. 

WE HAVE EXAMINED PETITIONER'S ARGUMENTS AND FIND THEM TO BE WITHOUT
MERIT.  WE CAN FIND NO EVIDENCE THAT THE COMMON LAW RECOGNIZED THAT
DEFENDANTS HAD THE RIGHT TO CHOOSE BETWEEN COURT AND JURY TRIAL. 
ALTHOUGH INSTANCES OF WAIVER OF JURY TRIAL CAN BE FOUND IN CERTAIN OF
THE COLONIES PRIOR TO THE ADOPTION OF THE CONSTITUTION, THEY WERE
ISOLATED INSTANCES OCCURRING PURSUANT TO COLONIAL "CONSTITUTIONS" OR
STATUTES AND WERE CLEAR DEPARTURES FROM THE COMMON LAW.  THERE IS NO
INDICATION THAT THE COLONISTS CONSIDERED THE ABILITY TO WAIVE A JURY
TRIAL TO BE OF EQUAL IMPORTANCE TO THE RIGHT TO DEMAND ONE.  HAVING
FOUND THAT THE CONSTITUTION NEITHER CONFERS NOR RECOGNIZES A RIGHT OF
CRIMINAL DEFENDANTS TO HAVE THEIR CASES TRIED BEFORE A JUDGE ALONE, WE
ALSO CONCLUDE THAT RULE 23(A) SETS FORTH A REASONABLE PROCEDURE
GOVERNING ATTEMPTED WAIVERS OF JURY TRIALS. 

                                       I. 

ENGLISH COMMON LAW.  THE ORIGIN OF TRIAL BY JURY IN ENGLAND IS NOT
ALTOGETHER CLEAR.  AT ITS INCEPTION IT WAS AN ALTERNATIVE TO ONE OF THE
OLDER METHODS OF PROOF - TRIAL BY COMPURGATION, ORDEAL OR BATTLE.  I
HOLDSWORTH, A HISTORY OF ENGLISH LAW 326 (7TH ED. 1956).  SOON AFTER
THE THIRTEENTH CENTURY TRIAL BY JURY HAD BECOME THE PRINCIPAL
INSTITUTION FOR CRIMINAL CASES, JENKS, A SHORT HISTORY OF ENGLISH LAW
52 (5TH ED. 1938); YET, EVEN AFTER THE OLDER PROCEDURES OF
COMPURGATION, ORDEAL AND BATTLE HAD PASSED INTO DISUSE, THE DEFENDANT
TECHNICALLY RETAINED THE RIGHT TO BE TRIED BY ONE OF THEM.  BEFORE A
DEFENDANT COULD BE SUBJECTED TO JURY TRIAL HIS "CONSENT" WAS REQUIRED,
BUT THE ENGLISHMEN OF THE PERIOD HAD A CONCEPT OF "CONSENT" SOMEWHAT
DIFFERENT FROM OWN OWN.  THE STATUTE OF WESTMINISTER I, 1275, 3 EDW. 
1, C. 12, WHICH DESCRIBED DEFENDANTS WHO REFUSED TO SUBMIT TO JURY
TRIAL AS "REFUSING TO STAND TO THE COMMON LAW OF THE LAND," MARKS THE
BEGINNING OF THE HORRENDOUS PRACTICE KNOWN AS PEINE FORTE ET DURE BY
WHICH RECALCITRANT DEFENDANTS WERE TORTURED UNTIL DEATH OR UNTIL THEY
"CONSENTED" TO A JURY TRIAL. 

IT IS SIGNIFICANT THAT DEFENDANTS WHO REFUSED TO SUBMIT TO A JURY
WERE NOT ENTITLED TO AN ALTERNATIVE METHOD OF TRIAL, (FN3) AND IT WAS
ONLY IN 1772 THAT PEINE FORTE ET DURE WAS OFFICIALLY ABOLISHED IN
ENGLAND.  BY A STATUTE ENACTED IN THAT YEAR, 12 GEO. 3, C. 20, A
DEFENDANT WHO STOOD MUTE WHEN CHARGED WITH A FELONY WAS DEEMED TO HAVE
PLEADED GUILTY.  NOT UNTIL 1827, LONG AFTER THE ADOPTION OF OUR
CONSTITUTION, DID ENGLAND PROVIDE BY STATUTE, 7 & 8 GEO. 4, C. 28, FOR
THE TRIAL OF THOSE WHO STOOD MUTE.  EVEN THIS STATUTE DID NOT GIVE THE
DEFENDANT THE RIGHT TO PLEAD HIS CASE BEFORE A JUDGE ALONE, BUT MERELY
PROVIDED THAT HE WOULD BE SUBJECT TO JURY TRIAL WITHOUT HIS FORMAL
CONSENT. 

THUS, AS LATE AS 1827 THE ENGLISH COMMON LAW GAVE CRIMINAL DEFENDANTS
NO OPTION AS TO THE MODE OF TRIAL.  THE CLOSEST THE COMMON LAW CAME TO
SUCH A PROCEDURE WAS THAT OF THE "IMPLIED CONFESSION," DESCRIBED
BRIEFLY IN 2 HAWKINS, PLEAS OF THE CROWN, C. 31 (6TH ED. 1787), BY
WHICH DEFENDANTS ACCUSED OF MINOR OFFENSES DID NOT EXPLICITLY ADMIT
THEIR GUILT BUT THREW THEMSELVES ON THE KING'S MERCY AND EXPRESSED
THEIR WILLINGNESS TO SUBMIT TO A SMALL FINE.  DESPITE THE "IMPLIED
CONFESSION," THE COURT HEARD EVIDENCE AND COULD DISCHARGE THE DEFENDANT
IF IT FOUND THE EVIDENCE WANTING.  GRISWOLD, THE HISTORICAL DEVELOPMENT
OF WAIVER OF JURY TRIAL IN CRIMINAL CASES, 20 VA. L. REV. 655, 660
(1934).  IT CANNOT SERIOUSLY BE ARGUED THAT THIS OBSCURE AND
INSIGNIFICANT PROCEDURE, HAVING NO APPLICABILITY TO SERIOUS OFFENSES,
ESTABLISHES THE PROPOSITION THAT AT COMMON LAW DEFENDANTS HAD THE RIGHT
TO CHOOSE THE METHOD OF TRIAL IN ALL CRIMINAL CASES.  ON THE CONTRARY,
"BY ITS INTRINSIC FAIRNESS AS CONTRASTED WITH OLDER MODES, AND BY THE
FAVOR OF THE CROWN AND THE JUDGES, TRIAL BY JURY GREW FAST TO BE
REGARDED AS THE ONE REGULAR COMMON-LAW MODE OF TRIAL, ALWAYS TO BE HAD
WHEN NO OTHER WAS FIXED."  THAYER, A PRELIMINARY TREATISE ON EVIDENCE
AT THE COMMON LAW 60 (1898). 

THE COLONIAL EXPERIENCE.  THE COLONIES WHICH MOST FREELY PERMITTED
WAIVER OF JURY TRIAL AS A MATTER OF COURSE WERE MASSACHUSETTS AND
MARYLAND.  THE "FIRST CONSTITUTION" OF MASSACHUSETTS - THE BODY OF
LIBERTIES OF 1641 - CONTAINED AS LIBERTY XXIX THE FOLLOWING: 

"IN ALL ACTIONS AT LAW, IT SHALL BE THE LIBERTY OF THE PLAINTIFF AND
DEFENDANT, BY MUTUAL CONSENT, TO CHOOSE WHETHER THEY WILL BE TRIED BY
THE BENCH OR BY A JURY, UNLESS IT BE WHERE THE LAW UPON JUST REASON HAS
OTHERWISE DETERMINED.  THE LIKE LIBERTY SHALL BE GRANTED TO ALL PERSONS
IN CRIMINAL CASES." 

IT SHOULD BE NOTED THAT LIBERTY XXIX'S LANGUAGE EXPLICITLY PROVIDED
THAT THE RIGHT TO CHOOSE TRIAL BY JUDGE ALONE WAS SUBJECT TO CHANGE
"WHERE THE LAW UPON JUST REASON HAS OTHERWISE DETERMINED."  MOREOVER,
THOSE DRAFTING AND ADMINISTERING THE LIBERTY RECOGNIZED THAT IT WAS A
DEPARTURE FROM THE ENGLISH COMMON LAW.  GRINNELL, TO WHAT EXTENT IS THE
RIGHT TO JURY TRIAL OPTIONAL IN CRIMINAL CASES IN MASSACHUSETTS?  8
MASS. L.Q. NO. 5, 7, 23-25 (1923).  SEVERAL CASES CAN BE CITED, AT
LEAST UP UNTIL 1692, IN WHICH DEFENDANTS IN MASSACHUSETTS WAIVED JURY
TRIAL AND WERE TRIED BY THE BENCH.  SEE GRINNELL, SUPRA, AT 27-29;
GRISWOLD, SUPRA, AT 661-664.  HOWEVER, FROM 1692 ON, IN LIGHT OF
INCREASING HOSTILITY TO THE CROWN, THE COLONISTS OF MASSACHUSETTS
STRESSED THEIR RIGHT TO TRIAL BY JURY, NOT THEIR RIGHT TO CHOOSE
BETWEEN ALTERNATE METHODS OF TRIAL.  INSTEAD OF BEING A SETTLED PART OF
THE JURISPRUDENCE OF MASSACHUSETTS AT THE TIME OF THE CONSTITUTIONAL
CONVENTION, THE ABILITY TO CHOOSE BETWEEN JUDGE AND JURY HAD BECOME A
FORGOTTEN OPTION IN MASSACHUSETTS: 

"WITH THE STATE OF MIND THEN EXISTING AMONG THE COLONISTS, PRESUMABLY
NOBODY BOTHERED ABOUT THIS QUESTION OF ANY ONE'S WANTING TO WAIVE A
JURY.  THE GENERAL COURT WAS THEN CONCERNED WITH THE QUESTION OF A
MAN'S RIGHT TO A JURY WHEN HE ASKED FOR IT, WHICH THEY THOUGHT IN
DANGER.  THE 'BODY OF LIBERTIES' NEVER HAVING BEEN PRINTED AND THE
NINETEEN ORIGINAL OFFICIAL MANUSCRIPT COPIES HAVING DOUBTLESS BEEN LOST
OR FORGOTTEN, THE 'BAR' (WHICH DID NOT BEGIN TO DEVELOP UNTIL THE
BEGINNING OF THE 18TH CENTURY) AND THE 18TH CENTURY PEOPLE, PROBABLY
GREW UP WITHOUT ANY GENERAL KNOWLEDGE OF THE EXPRESSLY OPTIONAL
CHARACTER OF THE RIGHT TO A JURY ESTABLISHED AS A 'FUNDAMENTAL' BY THE
COMMON LAW OF MASSACHUSETTS IN THE COLONIAL PERIOD."  (FN4) 

IT APPEARS THAT FROM THE EARLY DAYS OF MARYLAND'S COLONIZATION MINOR
CASES WERE TRIED BY JUDGES SITTING ALONE.  BOND, THE MARYLAND PRACTICE
OF TRYING CRIMINAL CASES BY JUDGES ALONE, WITHOUT JURIES, 11 A.B.A.J.
699, 700 (1925).  BUT THE DEFENDANT WHO SUBMITTED HIS CASE TO THE JUDGE
WAS NOT CONSIDERED ON A PAR WITH THE DEFENDANT WHO CHOSE TO HAVE A JURY
HEAR HIS CASE, AS IS EVIDENCED BY A MARYLAND STATUTE OF 1793 WHICH
PROVIDED THAT SUBMISSION TO A JUDGE WOULD BE CONSIDERED AN ADMISSION OF
CRIME (ANALOGOUS TO THE "IMPLIED CONFESSION" OF MINOR OFFENSES UNDER
ENGLISH COMMON LAW) AT LEAST INSOFAR AS TO RENDER THE PERSON SUBMITTING
HIS CASE TO A JUDGE LIABLE FOR THE COSTS OF PROSECUTION.  IN 1809,
MARYLAND DECLARED BY STATUTE THAT WAIVER OF JURY TRIAL WAS TO BE
ENCOURAGED AND THE WILLING DEFENDANT WAS TO SUFFER NO INCREASED
LIABILITY FOR SO DOING.  IT WAS NOT UNTIL 1823, HOWEVER, THAT MAJOR
CASES BEGAN ALSO TO BE SUBMITTED TO JUDGES ALONE, AND THE FIRST MAJOR
CASE SO SUBMITTED CAUSED SOME SURPRISE AND SHARP COMMENT IN MARYLAND
LEGAL CIRCLES.  SEE BOND, SUPRA, AT 701. 

OTHER POSSIBLE EXAMPLES OF OPTIONAL JURY TRIAL PROCEDURES CAN BE
CITED IN COLONIAL NEW HAMPSHIRE, VERMONT, CONNECTICUT, NEW JERSEY AND
PENNSYLVANIA.  (FN5)  SEE GRISWOLD, SUPRA, AT 664-667.  THE MOST THAT
CAN BE SAID FOR THESE EXAMPLES IS THAT THEY ARE EVIDENCE THAT THE
COLONISTS BELIEVED IT WAS POSSIBLE TO TRY CRIMINAL DEFENDANTS WITHOUT A
JURY.  THEY IN NO WAY SHOW THAT THERE WAS ANY GENERAL RECOGNITION OF A
DEFENDANT'S RIGHT TO BE TRIED BY THE COURT INSTEAD OF BY A JURY. 
INDEED, IF THERE HAD BEEN RECOGNITION OF SUCH A RIGHT, IT WOULD BE
DIFFICULT TO UNDERSTAND WHY ARTICLE III AND THE SIXTH AMENDMENT WERE
NOT DRAFTED IN TERMS WHICH RECOGNIZED AN OPTION. 

THE CONSTITUTION AND ITS JUDICIAL INTERPRETATION.  THE PRECEDINGS AT
THE CONSTITUTIONAL CONVENTION GIVE LITTLE INSIGHT INTO WHAT WAS MEANT
BY THE DIRECTION IN ART. III, SEC. 2, THAT THE "TRIAL OF ALL CRIMES
...  SHALL BE BY JURY."  THE CLAUSE WAS CLEARLY INTENDED TO PROTECT THE
ACCUSED FROM OPPRESSION BY THE GOVERNMENT, SEE III FARRAND, RECORDS OF
THE FEDERAL CONVENTION 101 (JAMES WILSON), 221-222 (LUTHER MARTIN)
(1911); BUT, SINCE THE PRACTICE OF PERMITTING DEFENDANTS A CHOICE AS TO
THE MODE OF TRIAL WAS NOT WIDESPREAD, IT IS NOT SURPRISING THAT SOME OF
THE FRAMERS APPARENTLY BELIEVED THAT THE CONSTITUTION DESIGNATED TRIAL
BY JURY AS THE EXCLUSIVE METHOD OF DETERMINING GUILT, SEE THE
FEDERALIST, NO. 83 (ALEXANDER HAMILTON)(COOKE ED. 1961); IV ELLIOT'S
DEBATES 145, 171 (JAMES IREDELL)(2D ED. 1876); III ELLIOT'S DEBATES 521
(EDMUND PENDLETON)(2D ED. 1876). 

IN NO KNOWN FEDERAL CRIMINAL CASE IN THE PERIOD IMMEDIATELY FOLLOWING
THE ADOPTION OF THE CONSTITUTION DID A DEFENDANT CLAIM THAT HE HAD THE
RIGHT TO INSIST UPON A TRIAL WITHOUT A JURY.  INDEED, IN UNITED STATES
V. GIBERT, 25 FED. CAS. 1287 (NO. 15204)(C.C.D. MASS. 1834), MR.
JUSTICE STORY, WHILE SITTING ON CIRCUIT, INDICATED HIS VIEW THAT THE
CONSTITUTION MADE TRIAL BY JURY THE ONLY PERMISSIBLE METHOD OF TRIAL. 
SIMILAR VIEWS WERE EXPRESSED BY OTHER FEDERAL JUDGES.  SEE EX PARTE
MCCLUSKY, 40 F. 71, 74-75 (C.C.D. ARK. 1889)(BY IMPLICATION); UNITED
STATES V. TAYLOR, 11 F. 470, 471 (C.C.D. KAN. 1882)(DICTUM).  (FN6) 

ALTHOUGH NOT NECESSARY TO THE HOLDING IN THE CASE, IN THOMPSON V.
UTAH, 170 U.S. 343, THIS COURT ALSO EXPRESSED A VIEW THAT THE
CONSTITUTION MADE JURY TRIAL THE EXCLUSIVE METHOD OF DETERMINING GUILT
IN ALL FEDERAL CRIMINAL CASES.  HOWEVER, IN SCHICK V. UNITED STATES,
195 U.S. 65, THE COURT DECIDED THERE WAS NO CONSITUTIONAL REQUIREMENT
THAT PETTY OFFENSES BE TRIED BY JURY.  THESE TWO DECISIONS WERE
CONSTRUED BY THE LOWER FEDERAL COURTS AS ESTABLISHING A RULE THAT IN
ALL BUT PETTY OFFENSES JURY TRIAL WAS A CONSTITUTIONAL IMPERATIVE.  SEE
COATES V. UNITED STATES, 290 F. 134 (C.A. 4TH CIR. 1923); BLAIR V.
UNITED STATES, 241 F. 217, 230 (C.A. 9TH CIR. 1917); FRANK V. UNITED
STATES, 192 F. 864, 867-868 (C.A. 6TH CIR. 1911)(DICTUM); LOW V. UNITED
STATES, 169 F. 86 (C.A. 6TH CIR. 1909); DICKINSON V. UNITED STATES, 159
F. 801 (C.A. 1ST CIR. 1908), CERT. DENIED, 213 U.S. 92.    THE ISSUE
WHETHER A DEFENDANT COULD WAIVE A JURY TRIAL IN FEDERAL CRIMINAL CASES
WAS FINALLY PRESENTED TO THIS COURT IN PATTON V. UNITED STATES, 281
U.S. 276.  THE PATTON CASE CAME BEFORE THE COURT ON A CERTIFIED
QUESTION FROM THE EIGHTH CIRCUIT.  THE WORDING OF THE QUESTION, ID., AT
287, IS SIGNIFICANT: 

"AFTER THE COMMENCEMENT OF A TRIAL IN A FEDERAL COURT BEFORE A JURY
OF TWELVE MEN UPON AN INDICTMENT CHARGING A CRIME, PUNISHMENT FOR WHICH
MAY INVOLVE A PENITENTIARY SENTENCE, IF ONE JUROR BECOMES INCAPACITATED
AND UNABLE TO FURTHER PROCEED WITH HIS WORK AS A JUROR, CAN DEFENDANT
OR DEFENDANTS AND THE GOVERNMENT THROUGH ITS OFFICIAL REPRESENTATIVE IN
CHARGE OF THE CASE CONSENT TO THE TRIAL PROCEEDING TO A FINALITY WITH
ELEVEN JURORS, AND CAN DEFENDANT OR DEFENDANTS THUS WAIVE THE RIGHT TO
A TRIAL AND VERDICT BY A CONSTITUTIONAL JURY OF TWELVE MEN?" 

THE QUESTION EXPLICITLY STATED THAT THE GOVERNMENT HAD AGREED WITH
THE DEFENDANT THAT HIS TRIAL SHOULD PROCEED WITH 11 JURORS.  THE CASE
DID NOT INVOLVE TRIAL BEFORE A JUDGE ALONE, BUT THE COURT BELIEVED THAT
TRIAL BEFORE 11 JURORS WAS AS FOREIGN TO THE COMMON LAW AS WAS TRIAL
BEFORE A JUDGE ALONE, AND THEREFORE BOTH FORMS OF WAIVER "IN SUBSTANCE
AMOUNTED TO THE SAME THING."  ID., AT 290.  THE COURT EXAMINED ART.
III, SEC. 2, AND THE SIXTH AMENDMENT AND CONCLUDED THAT A JURY TRIAL
WAS A RIGHT WHICH THE ACCUSED MIGHT "FOREGO AT HIS ELECTION."  ID., AT
298.  THE COURT ALSO SPOKE OF JURY TRIAL AS A "PRIVILEGE," NOT AN
"IMPERATIVE REQUIREMENT," IBID., AND REMARKED THAT JURY TRIAL WAS
PRINCIPALLY FOR THE BENEFIT OF THE ACCUSED, ID., AT 312.  NEVERTHELESS,
THE COURT WAS CONSCIOUS OF THE PRECISE QUESTION THAT WAS PRESENTED BY
THE EIGHTH CIRCUIT, AND CONCLUDED ITS OPINION, ID., AT 312-313, WITH
CAREFULLY CHOSEN LANGUAGE THAT DISPELLED ANY NOTION THAT THE DEFENDANT
HAD AN ABSOLUTE RIGHT TO DEMAND TRIAL BEFORE A JUDGE SITTING ALONE: 

"NOT ONLY MUST THE RIGHT OF THE ACCUSED TO A TRIAL BY A
CONSTITUTIONAL JURY BE JEALOUSLY PRESERVED, BUT THE MAINTENANCE OF THE
JURY AS A FACT FINDING BODY IN CRIMINAL CASES IS OF SUCH IMPORTANCE AND
HAS SUCH A PLACE IN OUR TRADITIONS, THAT, BEFORE ANY WAIVER CAN BECOME
EFFECTIVE, THE CONSENT OF GOVERNMENT COUNSEL AND THE SANCTION OF THE
COURT MUST BE HAD, IN ADDITION TO THE EXPRESS AND INTELLIGENT CONSENT
OF THE DEFENDANT.  AND THE DUTY OF THE TRIAL COURT IN THAT REGARD IS
NOT TO BE DISCHARGED AS A MERE MATTER OF ROTE, BUT WITH SOUND AND
ADVISED DISCRETION, WITH AN EYE TO AVOID UNREASONABLE OR UNDUE
DEPARTURES FROM THAT MODE OF TRIAL OR FROM ANY OF THE ESSENTIAL
ELEMENTS THEREOF, AND WITH A CAUTION INCREASING IN DEGREE AS THE
OFFENSES DEALT WITH INCREASE IN GRAVITY." 

IN ADAMS V. UNITED STATES EX REL. MCCANN, 317 U.S. 269, 277-278, THIS
COURT REAFFIRMED THE POSITION TAKEN IN PATTON THAT "ONE CHARGED WITH A
SERIOUS FEDERAL CRIME MAY DISPENSE WITH HIS CONSTITUTIONAL RIGHT TO
JURY TRIAL, WHERE THIS ACTION IS TAKEN WITH HIS EXPRESS, INTELLIGENT
CONSENT, WHERE THE GOVERNMENT ALSO CONSENTS, AND WHERE SUCH ACTION IS
APPROVED BY THE RESPONSIBLE JUDGMENT OF THE TRIAL COURT." 

                                       II. 

THUS, THERE IS NO FEDERALLY RECOGNIZED RIGHT TO A CRIMINAL TRIAL
BEFORE A JUDGE SITTING ALONE, BUT A DEFENDANT CAN, AS WAS HELD IN
PATTON, IN SOME INSTANCES WAIVE HIS RIGHT TO A TRIAL BY JURY.  THE
QUESTION REMAINS WHETHER THE EFFECTIVENESS OF THIS WAIVER CAN BE
CONDITIONED UPON THE CONSENT OF THE PROSECUTING ATTORNEY AND THE TRIAL
JUDGE. 

THE ABILITY TO WAIVE A CONSTITUTIONAL RIGHT DOES NOT ORDINARILY CARRY
WITH IT THE RIGHT TO INSIST UPON THE OPPOSITE OF THAT RIGHT.  FOR
EXAMPLE, ALTHOUGH A DEFENDANT CAN, UNDER SOME CIRCUMSTANCES, WAIVE HIS
CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL, HE HAS NO ABSOLUTE RIGHT TO
COMPEL A PRIVATE TRIAL, SEE UNITED STATES V. KOBLI, 172 F.2D 919, 924
(C.A. 3D CIR. 1949) (BY IMPLICATION); ALTHOUGH HE CAN WAIVE HIS RIGHT
TO BE TRIED IN THE STATE AND DISTRICT WHERE THE CRIME WAS COMMITTED, HE
CANNOT IN ALL CASES COMPEL TRANSFER OF THE CASE TO ANOTHER DISTRICT,
SEE PLATT V. MINNESOTA MINING & MFG. CO., 376 U.S. 240, 245; KERSTEN V.
UNITED STATES, 161 F.2D 337, 339 (C.A. 10TH CIR. 1947), CERT. DENIED,
331 U.S. 851; AND ALTHOUGH HE CAN WAIVE HIS RIGHT TO BE CONFRONTED BY
THE WITNESSES AGAINST HIM, IT HAS NEVER BEEN SERIOUSLY SUGGESTED THAT
HE CAN THEREBY COMPEL THE GOVERNMENT TO TRY THE CASE BY STIPULATION. 
MOREOVER, IT HAS LONG BEEN ACCEPTED THAT THE WAIVER OF CONSTITUTIONAL
RIGHTS CAN BE SUBJECTED TO REASONABLE PROCEDURAL REGULATIONS:  RULE
7(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE SETS FORTH THE
PROCEDURE TO BE FOLLOWED FOR WAIVER OF THE RIGHT TO BE PROSECUTED BY
INDICTMENT; RULE 20 DESCRIBES THE PROCEDURE FOR WAIVER OF THE RIGHT TO
BE TRIED IN THE DISTRICT IN WHICH AN INDICTMENT OR INFORMATION IS
PENDING AGAINST A DEFENDANT; AND RULE 44 DEALS WITH THE WAIVER OF THE
RIGHT TO COUNSEL. 

TRIAL BY JURY HAS BEEN ESTABLISHED BY THE CONSTITUTION AS THE "NORMAL
AND  ...  PREFERABLE MODE OF DISPOSING OF ISSUES OF FACT IN CRIMINAL
CASES."  PATTON V. UNITED STATES, 281 U.S. 276, 312.  AS WITH ANY MODE
THAT MIGHT BE DEVISED TO DETERMINE GUILT, TRIAL BY JURY HAS ITS
WEAKNESSES AND THE POTENTIAL FOR MISUSE.  HOWEVER, THE MODE ITSELF HAS
BEEN SURROUNDED WITH SAFEGUARDS TO MAKE IT AS FAIR AS POSSIBLE - FOR
EXAMPLE, VENUE CAN BE CHANGED WHEN THERE IS A WELL-GROUNDED FEAR OF
JURY PREJUDICE, RULE 21(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE,
AND PROSPECTIVE JURORS ARE SUBJECT TO VOIR DIRE EXAMINATION, TO
CHALLENGE FOR CAUSE, AND TO PEREMPTORY CHALLENGE, RULE 24(A) AND (B). 

IN LIGHT OF THE CONSTITUTION'S EMPHASIS ON JURY TRIAL, WE FIND IT
DIFFICULT TO UNDERSTAND HOW THE PETITIONER CAN SUBMIT THE BALD
PROPOSITION THAT TO COMPEL A DEFENDANT IN A CRIMINAL CASE TO UNDERGO A
JURY TRIAL AGAINST HIS WILL IS CONTRARY TO HIS RIGHT TO A FAIR TRIAL OR
TO DUE PROCESS.  A DEFENDANT'S ONLY CONSTITUTIONAL RIGHT CONCERNING THE
METHOD OF TRIAL IS TO AN IMPARTIAL TRIAL BY JURY.  WE FIND NO
CONSTITUTIONAL IMPEDIMENT TO CONDITIONING A WAIVER OF THIS RIGHT ON THE
CONSENT OF THE PROSECUTING ATTORNEY AND THE TRIAL JUDGE WHEN, IF EITHER
REFUSES TO CONSENT, THE RESULT IS SIMPLY THAT THE DEFENDANT IS SUBJECT
TO AN IMPARTIAL TRIAL BY JURY - THE VERY THING THAT THE CONSTITUTION
GUARANTEES HIM.  THE CONSTITUTION RECOGNIZES AN ADVERSARY SYSTEM AS THE
PROPER METHOD OF DETERMINING GUILT, AND THE GOVERNMENT, AS A LITIGANT,
HAS A LEGITIMATE INTEREST IN SEEING THAT CASES IN WHICH IT BELIEVES A
CONVICTION IS WARRANTED ARE TRIED BEFORE THE TRIBUNAL WHICH THE
CONSTITUTION REGARDS AS MOST LIKELY TO PRODUCE A FAIR RESULT.  THIS
RECOGNITION OF THE GOVERNMENT'S INTEREST AS A LITIGANT HAS AN ANALOGY
IN RULE 24(B) OF THE FEDERAL RULES, WHICH PERMITS THE GOVERNMENT TO
CHALLENGE JURORS PEREMPTORILY. 

WE ARE AWARE THAT THE STATES HAVE ADOPTED A VARIETY OF PROCEDURES
RELATING TO THE WAIVER OF JURY TRIALS IN STATE CRIMINAL CASES.  SOME
HAVE MADE WAIVER CONTINGENT ON APPROVAL BY THE PROSECUTOR, E.G.,
CALIFORNIA (CAL. CONST. ART. I, SEC. 7), INDIANA (IND. ANN. STAT.  SEC.
9-1803 (1956 REPL.  VOL.), ALLDREDGE V. INDIANA, 239 IND. 256, 156
N.E.2D 888 (1959), AND VIRGINIA (VA. CONST. SEC. 8, VA. CODE ANN. SEC.
19.1-192 (1950 REPL.  VOL.), BOAZE V. COMMONWEALTH, 165 VA. 786, 183
S.E. 263 (1936)).  OTHERS, WHILE NOT GIVING THE PROSECUTOR A VOICE,
HAVE MADE COURT APPROVAL A PREREQUISITE FOR WAIVER, E.G., GEORGIA (GA.
CODE ANN.  SEC. 102-106 (1955), PALMER V. STATE, 195 GA. 661, 25 S.E.2D
295 (1943), AND WASHINGTON (WASH. REV. CODE SEC. 10.01.060 (1963
SUPP.)).  STILL OTHERS HAVE PROVIDED THAT THE QUESTION OF WAIVER IS A
MATTER SOLELY FOR THE DEFENDANT'S INFORMED DECISION, E.G., CONNECTICUT
(CONN.  GEN. STAT. REV. SEC. 54-82 (1958)), AND ILLINOIS (ILL. ANN.
STAT. C. 38, SEC. 103-6 (SMITH-HURD ED. 1964), ILLINOIS V. SPEGAL, 5
ILL. 2D 211, 125 N.E.2D 468 (1955)).  HOWEVER, THE FRAMERS OF THE
FEDERAL RULES WERE AWARE OF POSSIBLE ALTERNATIVES WHEN THEY RECOMMENDED
THE PRESENT RULE TO THIS COURT, SEE ORFIELD, TRIAL BY JURY IN FEDERAL
CRIMINAL PROCEDURE, 1962 DUKE L.J. 29, 69-72; THIS COURT PROMULGATED
THE RULE AS RECOMMENDED; AND CONGRESS CAN BE DEEMED TO HAVE ADOPTED IT,
18 U.S.C. SEC. 3771 (1958 ED.). 

IN UPHOLDING THE VALIDITY OF RULE 23(A), WE REITERATE THE SENTIMENT
EXPRESSED IN BERGER V. UNITED STATES, 295 U.S. 78, 88, THAT THE
GOVERNMENT ATTORNEY IN A CRIMINAL PROSECUTION IS NOT AN ORDINARY PARTY
TO A CONTROVERSY, BUT A "SERVANT OF THE LAW" WITH A "TWOFOLD AIM  ...
THAT GUILT SHALL NOT ESCAPE OR INNOCENCE SUFFER."  IT WAS IN LIGHT OF
THIS CONCEPT OF THE ROLE OF PROSECUTOR THAT RULE 23(A) WAS FRAMED, AND
WE ARE CONFIDENT THAT IT IS IN THIS LIGHT THAT IT WILL CONTINUE TO BE
INVOKED BY GOVERNMENT ATTORNEYS.  BECAUSE OF THIS CONFIDENCE IN THE
INTEGRITY OF THE FEDERAL PROSECUTOR, RULE 23(A) DOES NOT REQUIRE THAT
THE GOVERNMENT ARTICULATE ITS REASONS FOR DEMANDING A JURY TRIAL AT THE
TIME IT REFUSES TO CONSENT TO A DEFENDANT'S PROFFERED WAIVER.  NOR
SHOULD WE ASSUME THAT FEDERAL PROSECUTORS WOULD DEMAND A JURY TRIAL FOR
AN IGNOBLE PURPOSE.  WE NEED NOT DETERMINE IN THIS CASE WHETHER THERE
MIGHT BE SOME CIRCUMSTANCES WHERE A DEFENDANT'S REASONS FOR WANTING TO
BE TRIED BY A JUDGE ALONE ARE SO COMPELLING THAT THE GOVERNMENT'S
INSISTENCE ON TRIAL BY JURY WOULD RESULT IN THE DENIAL TO A DEFENDANT
OF AN IMPARTIAL TRIAL.  PETITIONER ARGUES THAT THERE MIGHT ARISE
SITUATIONS WHERE "PASSION, PREJUDICE  ...  PUBLIC FEELING" (FN7) OR
SOME OTHER FACTOR MAY RENDER IMPOSSIBLE OR UNLIKELY AN IMPARTIAL TRIAL
BY JURY.  HOWEVER, SINCE PETITIONER GAVE NO REASON FOR WANTING TO FORGO
JURY TRIAL OTHER THAN TO SAVE TIME, THIS IS NOT SUCH A CASE, AND
PETITIONER DOES NOT CLAIM THAT IT IS. 

PETITIONER HAS ALSO RAISED QUESTIONS INVOLVING THE INSTRUCTIONS TO
THE JURY AND ALLEGED MISCONDUCT BY THE PROSECUTING ATTORNEY.  WE HAVE
EXAMINED THE RECORD AND FIND THAT THE JURY WAS ADEQUATELY INSTRUCTED. 
IN ANY EVENT, NO TIMELY OBJECTION WAS MADE AS REQUIRED BY RULE 30 OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE AND, IN THE ABSENCE OF PLAIN
ERROR, THE COURT OF APPEALS CORRECTLY AFFIRMED THE JUDGMENT OF THE
TRIAL COURT.  SIMILARLY WITHOUT MERIT ARE PETITIONER'S SPECIFICATIONS
OF MISCONDUCT BY THE PROSECUTING ATTORNEY DURING THE TRIAL, SINCE THE
RECORD REVEALS THAT THE MISCONDUCT, IF ANY, WAS NEITHER PURPOSEFUL NOR
FLAGRANT, AND THE TRIAL COURT'S ADMONITIONS TO THE JURY SEEM TO HAVE
BEEN WELL DESIGNED TO CURE WHATEVER PREJUDICIAL IMPACT SOME OF THE
PROSECUTOR'S REMARKS MAY HAVE HAD IN THIS CASE. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  R. 17. 

FN2  ART. III, SEC. 2, OF THE UNITED STATES CONSTITUTION PROVIDES: 

"THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY
JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID CRIMES
SHALL HAVE BEEN COMMITTED; BUT WHEN NOT COMMITTED WITHIN ANY STATE, THE
TRIAL SHALL BE AT SUCH PLACE OR PLACES AS THE CONGRESS MAY BY LAW HAVE
DIRECTED." 

THE SIXTH AMENDMENT PROVIDES: 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE
BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

FN3  IT APPEARS THAT MANY HARDY DEFENDANTS WERE WILLING TO BE
TORTURED TO DEATH RATHER THAN SUBMIT TO A JURY TRIAL, NOT BECAUSE OF
ANY INHERENT DISTRUST OF THE JURY SYSTEM BUT BECAUSE OF THEIR DESIRE TO
AVOID A CONVICTION AND THEREBY PERVENT FORFEITURE OF THEIR LANDS AND
THE RESULTANT HARDSHIPS FOR THEIR DESCENDANTS.  CF. I HOLDSWORTH,
SUPRA, AT 326. 

FN4  GRINNELL, SUPRA, AT 33. 

FN5  THE PENNSYLVANIA CASE OF PROPRIETOR V. WILKINS, PENNYPACKER'S
PENNSYLVANIA COLONIAL CASES 88 (1892), DECIDED IN 1685-1686, IS OF
INTEREST IN THAT THE COURT TRIED A FORNICATION CASE WITHOUT A JURY OVER
THE OBJECTION OF THE PROSECUTION.  THE PUNISHMENT INVOLVED IN THE CASE
WAS A 10-POUND FINE.  THE CASE IS, THEREFORE, LITTLE AUTHORITY FOR THE
PROPOSITION THAT DEFENDANTS HAD THE RIGHT TO WAIVE JURY TRIALS IN ALL
CASES. 

FN6  IN CONSTRUING THEIR OWN CONSTITUTIONS, WHICH GENERALLY HAD
CLAUSES DESIGNED TO PRESERVE THE COMMON-LAW RIGHT TO TRIAL BY JURY, THE
STATE COURTS TOOK A SIMILARY LIMITED VIEW OF THE ABILITY OF A DEFENDANT
TO WAIVE JURY TRIAL.  SOME STATE COURTS RULED THAT IN THE ABSENCE OF A
STATUTE THERE COULD BE NO WAIVER OF JURY TRIAL.  SEE, E.G., WILSON V.
STATE, 16 ARK. 601 (1855); STATE V. MAINE, 27 CONN. 281 (1858); PEOPLE
V. SMITH, 9 MICH.  193 (1861).  SEVERAL OTHER COURTS DETERMINED THAT
THE STATE COULD BY STATUTE PROHIBIT WAIVER OF JURY TRIALS.  SEE, E.G.,
ARNOLD V. NEBRASKA, 38 NEB. 752, 57 N.W. 378 (1894); IN RE MCQUOWN, 19
OKLA, 347, 91 P. 689 (1907); STATE V. BATTEY, 32 R.I. 475, 80 A. 10
(1911); STATE V. HIRSCH, 91 VT. 330, 100 A. 877 (1917); MAYS V.
COMMONWEALTH, 82 VA. 550 (1886).  SOME STATE COURTS INTERPRETED THEIR
CONSTITUTIONS TO SAY THAT UNDER NO CIRCUMSTANCES COULD WAIVER BE
ALLOWED.  SEE, E.G., STATE V. HOLT, 90 N.C. 749 (1884); WILLIAMS V.
STATE, 12 OHIO ST. 622 (1861).  SEVERAL COURTS, OF COURSE, HELD THAT
WAIVER OF A JURY WAS PERMISSIBLE, EVEN IN THE ABSENCE OF ENABLING
LEGISLATION.  SEE, E.G., STATE EX REL. WARNER V. BAER, 103 OHIO ST.
585, 134 N.E. 786 (1921)(OVERRULING WILLIAMS V. STATE, SUPRA); EX PARTE
KING, 42 OKLA. CR. 46, 274 P. 682 (OKLA. CRIM. APP. 1929).  IN
HALLINGER V. DAVIS, 146 U.S. 314, THIS COURT HELD THAT A STATE STATUTE
PERMITTING WAIVER OF JURY TRIAL IN CRIMINAL CASES DID NOT VIOLATE THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.    FN7  PETITIONER'S
BRIEF, P. 24. 
..END :



















CRIDER V. ZURICH INSURANCE CO. 380 U.S. 39 


NO. 116.  ARGUED JANUARY 19, 1965.  - DECIDED MARCH 1, 1965.  - 324 F.2D
499, REVERSED. 


PETITIONER, AN ALABAMA RESIDENT, WAS INJURED IN THAT STATE WHILE
WORKING FOR A GEORGIA CORPORATION, AGAINST WHICH HE THEN SECURED A
DEFAULT JUDGMENT IN AN ALABAMA COURT UNDER THE GEORGIA WORKMEN'S
COMPENSATION ACT.  PETITIONER THEN BROUGHT THIS DIVERSITY ACTION ON THE
JUDGMENT AGAINST RESPONDENT, HIS EMPLOYER'S INSURER, IN THE DISTRICT
COURT, WHICH GRANTED A MOTION TO DISMISS ON THE GROUND THAT THE ALABAMA
COURT LACKED JURISDICTION TO AWARD DAMAGES UNDER THE GEORGIA ACT
PROVIDING FOR A REMEDY WHICH COULD BE AFFORDED EXCLUSIVELY BY THE
GEORGIA COMPENSATION BOARD.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE
STATE WHERE AN EMPLOYEE RESIDES AND IS INJURED MAY ADOPT SUCH CHOICE OF
REMEDY AS IT DESIRES, AND ALABAMA WAS FREE TO ADOPT AND ENFORCE THE
REMEDY PROVIDED BY GEORGIA WITHOUT ANY REQUIREMENT IMPOSED BY THE FULL
FAITH AND CREDIT CLAUSE THAT THE SPECIAL GEORGIA PROCEDURE BE
FOLLOWED.  PP. 41-43. 

CRIDER V. ZURICH INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A RESIDENT OF ALABAMA AND EMPLOYED THERE BY LAWLER
CONSTRUCTION CO., INC., A GEORGIA CORPORATION, WAS INJURED.  BOTH HE
AND LAWLER WERE UNDER GEORGIA'S WORKMEN'S COMPENSATION ACT AT THE
TIME.  PETITIONER SUED IN AN ALABAMA COURT UNDER THE GEORGIA ACT AND
OBTAINED A JUDGMENT BY DEFAULT AGAINST LAWLER.  RESPONDENT, THE INSURER
OF LAWLER, WAS SUED IN THE FEDERAL DISTRICT COURT BY PETITIONER ON HIS
ALABAMA JUDGMENT, FEDERAL JURISDICTION BEING BASED ON DIVERSITY OF
CITIZENSHIP.  THE DISTRICT COURT GRANTED RESPONDENT'S MOTION TO DISMISS
(224 F. SUPP. 87) AND THE COURT OF APPEALS AFFIRMED.  324 F.2D 499. 
THE CASE IS HERE ON A WRIT OF CERTIORARI.  377 U.S. 942. 

THE DISTRICT COURT AND THE COURT OF APPEALS STOOD ON GREEN V. J.A.
JONES CONSTRUCT.  CO., 161 F.2D 359, WHICH HELD THAT A MISSISSIPPI
STATE COURT HAD NO JURISDICTION TO AWARD DAMAGES UNDER THE GEORGIA
WORKMEN'S COMPENSATION ACT AND THAT THE FEDERAL DISTRICT COURT FOR
MISSISSIPPI WAS UNDER THE SAME DISABILITY, GEORGIA DECISIONS SETTLING
THE POINT THAT THE REMEDY PROVIDED BY THE GEORGIA ACT IS "AN EXCLUSIVE
ONE WHICH CAN BE AFFORDED ONLY" BY THE GEORGIA COMPENSATION BOARD. 
IBID. 

WE ASSUME THAT THE LOWER COURTS WERE CORRECT IN STATING WHAT THE
GEORGIA LAW IS.  BUT THE MERE FACT THAT PETITIONER, IF HE HAD SUED IN
GEORGIA, WOULD HAVE HAD TO FOLLOW THAT COURSE DOES NOT NECESSARILY MEAN
THAT THE ALABAMA STATE COURT WAS IN ERROR IN TAKING JURISDICTION OF THE
CAUSE. 

THE ALABAMA STATE COURT DEALT WITH AN INJURY OCCURRING TO AN ALABAMA
RESIDENT WHILE WORKING IN ALABAMA.  UNDER BRADFORD ELECTRIC CO. V.
CLAPPER, 286 U.S. 145, A STATE COULD FIX ONE EXCLUSIVE REMEDY FOR
PERSONAL INJURIES INVOLVING ITS RESIDENTS WHEREVER THE ACCIDENT
HAPPENED AND THE FULL FAITH AND CREDIT CLAUSE (ART. IV, SEC. 1)
REQUIRED THE OTHER STATES TO REFUSE TO ENFORCE ANY INCONSISTENT
REMEDY.  THAT CASE WOULD HAVE BEEN ON ALL FOURS WITH THE PRESENT ONE
HAD PETITIONER BEEN A RESIDENT OF GEORGIA, RATHER THAN ALABAMA.  ALASKA
PACKERS ASSN. V. COMMISSION, 294 U.S. 532, AND PACIFIC EMPLOYERS INS.
CO. V. COMMISSION, 306 U.S. 493, MARK A BREAK WITH THE CLAPPER
PHILOSOPHY.  ALASKA PACKERS ALLOWED THE STATE OF RESIDENCE OF THE
INJURED EMPLOYEE TO SUPPLY A REMEDY DIFFERENT FROM THE COMPENSATION ACT
OF THE PLACE OF THE INJURY, EVEN THOUGH THE EMPLOYEE HAD AGREED TO BE
BOUND BY THE LATTER REMEDY.  PACIFIC INSURANCE HELD THAT A PERSON
INJURED WHILE WORKING IN CALIFORNIA COULD RECOVER UNDER CALIFORNIA'S
COMPENSATION ACT EVEN THOUGH THE INJURED PERSON WAS A MASSACHUSETTS
RESIDENT, REGULARLY EMPLOYED THERE BY A MASSACHUSETTS CORPORATION AND
EVEN THOUGH THE MASSACHUSETTS COMPENSATION ACT PURPORTED TO GIVE AN
EXCLUSIVE REMEDY.  IN CARROLL V. LANZA, 349 U.S. 408, ARKANSAS, THE
PLACE WHERE THE INJURY OCCURRED, WAS ALLOWED TO GRANT COMMON-LAW
DAMAGES EVEN THOUGH MISSOURI, THE HOME STATE, HAD A COMPENSATION ACT
THAT PURPORTED TO BE EXCLUSIVE.  AS WE STATED IN THAT CASE: 

"MISSOURI CAN MAKE HER COMPENSATION ACT EXCLUSIVE, IF SHE CHOOSES,
AND ENFORCE IT AS SHE PLEASES WITHIN HER BORDERS.  ONCE THAT POLICY IS
EXTENDED INTO OTHER STATES, DIFFERENT CONSIDERATIONS COME INTO PLAY. 
ARKANSAS CAN ADOPT MISSOURI'S POLICY IF SHE LIKES.  OR, AS THE PACIFIC
EMPLOYERS INSURANCE CO. CASE TEACHES, SHE MAY SUPPLEMENT IT OR DISPLACE
IT WITH ANOTHER, INSOFAR AS REMEDIES FOR ACTS OCCURRING WITHIN HER
BOUNDARIES ARE CONCERNED.  WERE IT OTHERWISE, THE STATE WHERE THE
INJURY OCCURRED WOULD BE POWERLESS TO PROVIDE ANY REMEDIES OR
SAFEGUARDS TO NONRESIDENT EMPLOYEES WORKING WITHIN ITS BORDERS.  WE DO
NOT THINK THE FULL FAITH AND CREDIT CLAUSE DEMANDS THAT SUBSERVIENCY
FROM THE STATE OF THE INJURY."  ID., PP. 413-414. 

THE STATE WHERE THE EMPLOYEE LIVES AND WHERE HE WAS INJURED HAS A
LARGE AND CONSIDERABLE INTEREST IN THE EVENT.  AS WE SAID IN CARROLL V.
LANZA, SUPRA, P. 413, "THE STATE WHERE THE TORT OCCURS CERTAINLY HAS A
CONCERN IN THE PROBLEMS FOLLOWING IN THE WAKE OF THE INJURY.  THE
PROBLEMS OF MEDICAL CARE AND OF POSSIBLE DEPENDENTS ARE AMONG THESE
...  ."  THE STATE WHERE THE EMPLOYEE LIVES HAS PERHAPS EVEN A LARGER
CONCERN, FOR IT IS THERE THAT HE IS EXPECTED TO RETURN; AND IT IS ON
HIS COMMUNITY THAT THE IMPACT OF THE INJURY IS APT TO BE MOST KEENLY
FELT.  CERTAINLY WHEN THE INJURY OCCURS IN THE HOME STATE OF THE
EMPLOYEE, THE INTEREST OF THAT STATE IS AT LEAST COMMENSURATE WITH THE
INTEREST OF THE STATE IN WHICH AN INJURY OCCURS INVOLVING A
NONRESIDENT, AS IN CARROLL V. LANZA.   IF ARKANSAS HAD A SUFFICIENT
INTEREST THERE TO OVERRIDE MISSOURI'S EXCLUSIVE REMEDY, ALABAMA MAY
OVERRIDE GEORGIA'S HERE. 

THE ALABAMA POLICY IN THAT REGARD IS REFLECTED IN THE JUDGMENT
RENDERED BY THE ALABAMA COURT ON WHICH THIS FEDERAL SUIT WAS
INSTITUTED.  THAT ALABAMA JUDGMENT ADOPTED AND ENFORCED THE REMEDY
PROVIDED BY GEORGIA - A PROCEDURE WE INDICATED IN PACIFIC EMPLOYERS
INS. CO. V. COMMISSION, SUPRA, P. 500, A STATE MIGHT FOLLOW.  HERE AS
IN ALASKA PACKERS ASSN. V. COMMISSION, SUPRA, P. 544, "  ... THE
COMPENSATION ACTS OF EITHER JURISDICTION MAY, CONSISTENTLY WITH DUE
PROCESS, BE APPLIED IN EITHER  ...  ."  WE WERE CONSISTENT WITH THAT
VIEW IN CARROLL V. LANZA, SUPRA, WHEN WE SAID, IN WHAT WE HAVE ALREADY
QUOTED, THAT THE STATE OF THE FORUM MAY "SUPPLEMENT" OR "DISPLACE" THE
REMEDY OF THE OTHER STATE, CONSISTENTLY WITH CONSTITUTIONAL
REQUIREMENTS.  349 U.S., P. 414. 

IT IS EARNESTLY ARGUED BY THE DISSENT THAT THE GREEN DECISION, SUPRA,
WHICH THE COURT OF APPEALS FOLLOWED IN THE PRESENT CASE, "DID NOT REST
ON CONSTITUTIONAL GROUNDS," POST, P. 46.  RATHER IT IS SAID THAT GREEN
EXPRESSES MERELY A STATE CONFLICTS RULE.*  WE DO NOT SO READ GREEN. 
THERE THE COURT SAID THAT ITS DECISION WAS CONTROLLED BY THE PRINCIPLE
THAT "WHERE THE PROVISION FOR THE LIABILITY CLAIMED IS COUPLED WITH A
PROVISION FOR A SPECIAL REMEDY TO BE AFFORDED NOT BY A COURT BUT BY A
COMMISSION, THAT REMEDY AND THAT ALONE MUST BE EMPLOYED  ...  ."  161
F.2D 359.  THIS PRINCIPLE IS ALMOST A VERBATIM RESTATEMENT OF THE RULE
ADVERTED TO IN TENNESSEE COAL CO. V. GEORGE, 233 U.S. 354, 359:
"'WHERE THE PROVISION FOR THE LIABILITY IS COUPLED WITH A PROVISION FOR
A SPECIAL REMEDY, THAT REMEDY, AND THAT ALONE, MUST BE EMPLOYED.'"  AND
OUR OLDER CASES ASSUMED THAT THIS BROAD RULE WAS COMPELLED BY THE FULL
FAITH AND CREDIT CLAUSE.  SEE, E.G., IBID., AND CASES CITED; ATCHISON,
T.&S.F.R. CO. V. SOWERS, 213 U.S. 55; AND ALSO THE DISCUSSION IN
PEARSON V. NORTHEAST AIRLINES, INC., 309 F.2D 553.  BUT, AS WE HAVE
DEMONSTRATED, THAT RULE HAS BEEN ERODED BY THE LINE OF CASES BEGINNING
WITH ALASKA PACKERS AND PACIFIC INSURANCE.  OUR HOLDING FREES THE COURT
OF APPEALS ON REMAND TO RECONSIDER ITS HOLDING FREE FROM ANY SUPPOSED
CONSTITUTIONAL COMPULSION.  REVERSED. 

*WE STATED IN WELLS V. SIMONDS ABRASIVE CO., 345 U.S. 514, 516: 

"THE STATES ARE FREE TO ADOPT SUCH RULES OF CONFLICT OF LAWS AS THEY
CHOOSE, KRYGER V. WILSON, 242 U.S. 171 (1916), 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." 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

THE RESOLUTION OF THE ISSUE BEFORE THE COURT IN THIS CASE
NECESSITATES SETTING OUT THE HISTORY OF THIS LITIGATION IN MORE DETAIL
THAN DOES THE COURT.  PETITIONER ORIGINALLY BROUGHT HIS ACTION AGAINST
THE EMPLOYER IN AN ALABAMA COURT IN A THREE-COUNT COMPLAINT, THE FIRST
COUNT RELYING ON ALABAMA'S WORKMEN'S COMPENSATION ACT AND THE OTHER TWO
ON ALABAMA COMMON LAW.  HE THEN VOLUNTARILY DISMISSED THESE COUNTS AND
REINSTITUTED THE ACTION IN THE ALABAMA COURT WITH SOLE AND EXPRESS
RELIANCE ON THE GOERGIA WORKMEN'S COMPENSATION ACT.  A DEFAULT JUDGMENT
WAS THEN ENTERED IN PETITIONER'S FAVOR ON THE BASIS OF THIS NEW
COMPLAINT.  NO APPEAL WAS TAKEN FROM THIS DEFAULT JUDGMENT. 

PETITIONER THEN FILED A COMPLAINT IN AN ALABAMA COURT AGAINST
RESPONDENT, THE EMPLOYER'S INSURANCE COMPANY, TO ENFORCE THE PREVIOUSLY
OBTAINED DEFAULT JUDGMENT.  RESPONDENT ASSERTED IN DEFENSE THAT, SINCE
THE GEORGIA ACT UPON WHICH THE ACTION WAS BASED PROVIDES FOR PRIMARY
JURISDICTION IN AN ADMINISTRATIVE BOARD AND PRECLUDES ORIGINAL COURT
JURISDICTION, THE ALABAMA COURT LACKED SUBJECT MATTER JURISDICTION TO
ENTER THE DEFAULT JUDGMENT .  THE DEFAULT JUDGMENT, THEREFORE,
RESPONDENT CONTENDED, WAS VOID AND COULD BE COLLATERALLY ATTACKED IN
THE ENFORCEMENT PROCEEDING.  PETITIONER'S DEMURRER TO THIS DEFENSE WAS
OVERRULED BY THE ALABAMA COURT.  FOLLOWING THIS, PETITIONER VOLUNTARILY
DISMISSED THE ACTION IN THE ALABAMA COURT AND THE NEXT DAY FILED THE
DIVERSITY SUIT HERE BEFORE US, IDENTICAL TO THE PREVIOUS ALABAMA
ACTION.  RESPONDENT AGAIN ASSERTED THE DEFENSE OF LACK OF SUBJECT
MATTER JURISDICTION TO ENTER THE DEFAULT JUDGMENT.  BASED ON THIS
DEFENSE, AND AFTER THE SUBMISSION OF BRIEFS AND ORAL ARGUMENT, JUDGE
GROOMS DISMISSED THE COMPLAINT.  IN HOLDING THAT THERE HAD NOT BEEN
SUBJECT MATTER JURISDICTION TO ENTER THE DEFAULT JUDGMENT, JUDGE GROOMS
RELIED ON GREEN V. J.A. JONES CONSTRUCT.  CO., 161 F.2D 359, A DECISION
OF THE FIFTH CIRCUIT.  224 F. SUPP. 87, 88.  HE THEN WENT ON TO HOLD,
RELYING ON ALABAMA CASES, THAT SINCE THERE HAD BEEN NO SUBJECT MATTER
JURISDICTION IN THE ORIGINAL ACTION, THE DEFAULT JUDGMENT WAS, UNDER
ALABAMA LAW, SUBJECT TO COLLATERAL ATTACK.  THE COURT OF APPEALS
AFFIRMED PER CURIAM ON THE BASIS OF ITS PRIOR DECISION IN GREEN V. J.A.
JONES CONSTRUCT.  CO., SUPRA.  324 F.2D 499. 

THIS CASE DOES NOT PRESENT THE ISSUE OF WHETHER ALABAMA COULD HAVE
APPLIED ITS OWN COMPENSATION ACT OR ITS OWN COMMON LAW.  RESPONDENT
CONCEDES THAT, ON THE FACTS OF THIS CASE, (FN1) IT COULD HAVE APPLIED
EITHER AND OUR DECISIONS PLAINLY SO HOLD.  SEE PACIFIC EMPLOYERS INS.
CO. V. COMMISSION, 306 U.S. 493; CARROLL V. LANZA, 349 U.S. 408.  BUT,
AS I HAVE ALREADY NOTED, PETITIONER, WHO ORIGINALLY SUED UNDER BOTH
ALABAMA'S WORKMEN'S COMPENSATION ACT AND COMMON LAW, DISMISSED THOSE
COUNTS AND BASED HIS ACTION SOLELY ON THE GEORGIA WORKMEN'S
COMPENSATION ACT.  THE FEDERAL ISSUE RAISED BY RESPONDENT IS WHETHER,
CONSISTENTLY WITH THE FULL FAITH AND CREDIT CLAUSE, A STATE MAY ENFORCE
IN ITS COURTS THE LIABILITY CLAIMS CREATED BY ANOTHER STATE IN
VIOLATION OF THAT OTHER STATE'S FIXED POLICY TO HAVE THOSE CLAIMS
ENFORCED ONLY BY AN ADMINISTRATIVE BOARD.  THERE IS NO DECISION OF THIS
COURT WHICH SETTLES THIS FEDERAL ISSUE AND, IN MY VIEW, THE QUESTION IS
NOT FREE FROM DIFFICULTY.  SEE TENNESSEE COAL CO. V. GEORGE, 233 U.S.
354, 359, AND CASES THERE CITED; BUT CF. PEARSON V. NORTHEAST AIRLINES,
INC., 309 F.2D 553 (C.A.2D CIR.); KILBERG V. NORTHEAST AIRLINES, INC.,
9 N.Y.2D 34, 172 N.E.2D 526. 

ON THE RECORD HERE PRESENTED IT SEEMS CLEAR TO ME THAT THE COURT
SHOULD NOT REACH THIS CONSTITUTIONAL QUESTION.  IN THE CASE BEFORE US,
IF ALABAMA'S OWN LAW INDEPENDENTLY FORBIDS THE PIECEMEAL BORROWING OF
GEORGIA STATUTES AND DENIES TO THE ALABAMA COURTS JURISDICTION TO
ENTERTAIN PETITIONER'S SUIT ON THE GEORGIA STATUTE, THE QUESTION OF
WHETHER THE FEDERAL CONSTITUTION FORBIDS SUCH PIECEMEAL BORROWING NEED
NOT BE REACHED.  THE COURT RECOGNIZES, ANTE, AT 42-43, THAT THIS ISSUE
IS IN THE CASE, BUT BYPASSES THIS THRESHOLD STATE LAW ISSUE AND REACHES
THE ULTIMATE FEDERAL CONSTITUTIONAL PROBLEM.  IN SO DOING, THE COURT
DISREGARDS THE LONG-SETTLED RULE THAT THIS COURT WILL NOT PASS UPON
FEDERAL CONSTITUTIONAL QUESTIONS IF THERE ARE STATE LAW GROUNDS
PRESENTED UPON WHICH THE CASE MAY BE DISPOSED OF.  SEE SILER V.
LOUISVILLE & NASHVILLE R. CO., 213 U.S. 175; ASHWANDER V. VALLEY
AUTHORITY, 297 U.S. 288, 347 (BRANDEIS, J., CONCURRING), AND CASES
THERE CITED. 

THE SOLE BASIS FOR THE COURT'S INVERSION OF THIS LONG-SETTLED RULE OF
REACHING STATE LAW ISSUES BEFORE CONSTITUTIONAL ONES, IS THAT IT READS
THE DECISIONS BELOW AS BASED UPON "SUPPOSED CONSTITUTIONAL COMPULSION,"
ANTE, AT 43, AND NOT UPON INDEPENDENT STATE LAW.  I BELIEVE THAT THE
LOWER COURTS DID REST THEIR DECISIONS UPON INDEPENDENT STATE LAW AND
THAT THEY DETERMINED THAT THE DEFAULT JUDGMENT WAS VOID UNDER ALABAMA
LAW. 

THE OPINION OF JUDGE GROOMS, AN EXPERIENCED ALABAMA LAWYER, MAKES IT
CLEAR THAT HE RELIED UPON ALABAMA LAW IN DECIDING THAT THE ORIGINAL
DEFAULT JUDGMENT COULD BE COLLATERALLY ATTACKED.  (FN2) THE COURT
APPARENTLY DOES NOT DISPUTE THIS.  IT, HOWEVER, READS THE OPINIONS
BELOW AS RELYING UPON FEDERAL AND NOT UPON INDEPENDENT STATE LAW FOR
THE DETERMINATION THAT THE ALABAMA COURT WAS WITHOUT SUBJECT MATTER
JURISDICTION TO ENTER THE DEFAULT JUDGMENT.  IN REACHING THIS
CONCLUSION, THE COURT RELIES UPON THE FACT THAT BOTH JUDGE GROOMS AND
THE COURT OF APPEALS CITED AS CONTROLLING THE FIFTH CIRCUIT'S PRIOR
DECISION IN GREEN V. J.A. JONES CONSTRUCT.  CO., SUPRA.  ANTE, AT 40. 
THE COURT THEN READS GREEN AS RESTING UPON FULL FAITH AND CREDIT
COMPULSION.  A CAREFUL READING OF GREEN, HOWEVER, DISCLOSES THAT IT DID
NOT REST ON CONSTITUTIONAL GROUNDS.    THE COURT OF APPEALS IN GREEN
HAD AFFIRMED THE DISMISSAL BY THE UNITED STATES DISTRICT COURT IN
MISSISSIPPI OF A DIVERSITY ACTION BASED UPON THE SAME GEORGIA STATUTE
WHICH IS INVOLVED IN THIS CASE.  THE GREEN COURT STATED ITS CONCLUSION
THAT "IT IS QUITE CLEAR THAT THE CASE IS RULED BY THE PRINCIPLE THAT
WHERE THE PROVISION FOR THE LIABILITY CLAIMED IS COUPLED WITH A
PROVISION FOR A SPECIAL REMEDY TO BE AFFORDED NOT BY A COURT BUT BY A
COMMISSION, THAT REMEDY AND THAT ALONE MUST BE EMPLOYED AND RESORT TO
COURT ACTION MAY NOT BE HAD FOR RELIEF."  ID., AT 359.  AS AUTHORITY
FOR THIS "PRINCIPLE" THE COURT CITED THE RESTATEMENT OF THE LAW,
CONFLICT OF LAWS, SEC. 618, COMMENT A, AN ARKANSAS AND A MISSOURI CASE,
BOTH RESTING ON STATE LAW, AND TWO FEDERAL COURT DIVERSITY CASES,
CLEARLY APPLYING STATE LAW.  (FN3) 

WHILE THE LANGUAGE OF THIS GENERAL PRINCIPLE STATED BY THE GREEN
COURT IS SIMILAR TO THAT OF TENNESSEE COAL CO. V. GEORGE, SUPRA, AT
359, QUOTED IN THE COURT'S OPINION, ANTE, AT 43, THERE IS NO INDICATION
WHATSOEVER THAT THIS GENERAL STATE LAW PRINCIPLE WAS CONCEIVED TO BE
BASED ON FEDERAL COMPULSION EMANATING FROM THE DICTUM IN THE GEORGE
CASE.  NOWHERE IN THE GREEN OPINION IS THERE ANY MENTION OF THE FULL
FAITH AND CREDIT CLAUSE, THE GEORGE CASE, OR, INDEED, ANY FEDERAL LAW. 
MOREOVER, THE AUTHORITIES CITED BY THE GREEN COURT FOR THIS GENERAL
PRINCIPLE SIMILARLY DO NOT REST ON ANY CONCEPT OF FEDERAL COMPULSION. 
THE RESTATEMENT'S POSITION IS NOT CONCEIVED TO BE BASED ON FULL FAITH
AND CREDIT GROUNDS.  (FN4)  NEITHER OF THE FEDERAL COURT CASES CITED
HAS ANY REFERENCE AT ALL TO ANY FEDERAL LAW, INCLUDING THE GEORGE
CASE.  THE SAME IS TRUE OF THE MISSOURI CASE CITED, AND THE ARKANSAS
CASE CITED ONLY REFERS TO THE GEORGE CASE FOR A DIFFERENT POINT IN THE
GEORGE CASE.  FINALLY, THE TEXT WRITERS ARE IN ACCORD WITH THESE
AUTHORITIES IN NOT BASING THE GENERAL STATE LAW PRINCIPLE ON THE FULL
FAITH AND CREDIT CLAUSE.  (FN5) 

THE GREEN CASE IS NOT A CASE LIKE THOSE IN WHICH THE OPINION AS A
WHOLE "LEAVES THE IMPRESSION THAT THE COURT PROBABLY FELT CONSTRAINED
TO RULE AS IT DID BECAUSE OF DECISIONS OF THIS COURT," MINNESOTA V.
NATIONAL TEA CO., 309 U.S. 551, 554-555, OR "BECAUSE IT FELT UNDER
COMPULSION OF FEDERAL LAW AS ENUNCIATED BY THIS COURT SO TO HOLD,"
MISSOURI V. MAYFIELD, 340 U.S. 1, 5.  SEE JANKOVICH V. INDIANA TOLL
ROAD COMM'N, 379 U.S. 487, 492. 

THUS THE GREEN COURT CLEARLY SEEMS TO HAVE DECIDED THE CASE NOT ON
FULL FAITH AND CREDIT PRINCIPLES, BUT ON THE ASSUMPTION THAT
MISSISSIPPI LAW WAS IN ACCORD WITH THE GENERAL INDEPENDENT STATE LAW
RULE.  (FN6)  WHEN JUDGE GROOMS AND THE COURT OF APPEALS IN THE INSTANT
CASE, REFERRED TO GREEN, THEY WERE NOT THEREFORE, REFERRING TO IT AS
STATING CONSTITUTIONAL COMPULSION, BUT AS STATING THE GENERAL STATE LAW
RULE TO WHICH BOTH MISSISSIPPI AND ALABAMA ADHERE.  AGAIN, AS IN GREEN
THERE IS NOTHING IN EITHER OPINION BELOW THAT MIGHT BE TAKEN AS EVEN A
REMOTE REFERENCE TO THE FULL FAITH AND CREDIT CLAUSE OR ANY OTHER
FEDERAL RULE OR AUTHORITY.  I WOULD NOT PRESUME THAT THE LOWER FEDERAL
COURTS, PARTICULARLY IN A DIVERSITY CASE, WOULD, IN LIGHT OF THE
SETTLED DECISIONS OF THIS COURT, DECIDE A CASE BY DETERMINING
CONSTITUTIONAL ISSUES WITHOUT FIRST DECIDING THRESHOLD ISSUES OF STATE
LAW.  SEE ALMA MOTOR CO. V. TIMKEN CO., 329 U.S. 129, 136-137.  IT
SEEMS CLEAR TO ME, THEREFORE, THAT THE DISMISSAL OF PETITIONER'S ACTION
WAS BASED ON INDEPENDENT STATE LAW AND NOT ON FEDERAL GROUNDS. 

EVEN IF I AM WRONG ON THIS POINT, HOWEVER, AND THE COURT IS CORRECT
IN ASSUMING THAT THE LOWER COURTS HERE DID NOT RULE ON THE QUESTION OF
INDEPENDENT STATE LAW, THIS WOULD NOT JUSTIFY THE COURT'S IGNORING THE
FACT THAT THE DECISION BELOW IS CLEARLY SUPPORTED BY INDEPENDENT STATE
LAW AND, AS A CONSEQUENCE, THE CONSTITUTIONAL ISSUE SHOULD NOT BE
REACHED AND DECIDED.  CF. NEESE V. SOUTHERN R. CO., 350 U.S. 77. 

IN SINGLETON V. HOPE ENGINEERING CO., 223 ALA. 538, 540, 137 SO. 441,
442-443, THE ALABAMA SUPREME COURT HELD THAT THE ALABAMA COURTS DO NOT
HAVE SUBJECT MATTER JURISDICTION TO ENFORCE THE IDENTICAL GEORGIA
WORKMEN'S COMPENSATION ACT HERE IN ISSUE, ON THE GROUNDS THAT THE
ENFORCEMENT OF THE GEORGIA ACT IS VESTED EXCLUSIVELY IN THE GEORGIA
WORKMEN'S COMPENSATION COMMISSION.  IN REACHING THIS CONCLUSION OF
STATE LAW THE ALABAMA SUPREME COURT DID NOT CITE THE FULL FAITH AND
CREDIT CLAUSE, TENNESSEE COAL CO. V. GEORGE, SUPRA, OR INDEED ANY
FEDERAL AUTHORITY WHATSOEVER.  WHILE SINGLETON AROSE ON DIRECT APPEAL,
THIS FACT IS NOT SIGNIFICANT.  IN THE INSTANT CASE, JUDGE GROOMS
EXPRESSLY HELD THAT WHERE THE COURT THAT ENTERED THE DEFAULT JUDGMENT
LACKED SUBJECT MATTER JURISDICTION OF THE CONTROVERSY, ALABAMA LAW
PERMITS COLLATERAL ATTACK ON THE VALIDITY OF THE DEFAULT JUDGMENT. 
(FN7)  AS NOTED ABOVE, SINGLETON IS IN ACCORD WITH THE GENERAL STATE
RULE ON THIS POINT AND THERE IS NO CLAIM THAT ITS VITALITY AS A
PRECEDENT HAS BEEN IMPAIRED IN ANY WAY.  (FN8)  FINALLY, WHILE IT IS
TRUE THAT THE ALABAMA ENFORCEMENT ACTION WAS DISMISSED WITHOUT
PREJUDICE, THE ALABAMA COURT IN THAT CASE, IN OVERRULING THE DEMURRER
TO THIS ASSERTED DEFENSE, NECESSARILY HELD THAT UNDER ALABAMA LAW THE
DEFAULT JUDGMENT WAS SUBJECT TO COLLATERAL ATTACK AS IT WAS ENTERED BY
A COURT THAT LACKED SUBJECT MATTER JURISDICTION OF THE CONTROVERSY. 
FOR THESE REASONS I BELIEVE THE DECISION BELOW IS CLEARLY SUPPORTED BY
INDEPENDENT ALABAMA LAW. 

CERTIORARI WAS GRANTED IN THIS CASE ON THE ASSUMPTION THAT IT
NECESSITATED DECIDING THE CONSTITUTIONAL ISSUE INVOLVING THE FULL FAITH
AND CREDIT CLAUSE.  SINCE, IN MY VIEW, IT IS UNNECESSARY AND IMPROPER
TO REACH THAT ISSUE IN THIS CASE, I WOULD DISMISS THE WRIT AS
IMPROVIDENTLY GRANTED. 

BUT EVEN IF MY ANALYSIS OF THE DECISIONS BELOW IS ERRONEOUS AND THE
ALABAMA LAW IS NOT AS CLEAR AS I CONCEIVE IT TO BE, I WOULD STILL NOT
AGREE THAT IT IS APPROPRIATE TO DETERMINE THE ULTIMATE CONSTITUTIONAL
ISSUE.  THERE IS NO DOUBT, AS EVEN THE COURT RECOGNIZES, THAT THERE
EXISTS HERE AT LEAST A LURKING QUESTION OF INDEPENDENT STATE LAW. 
UNDER SUCH CIRCUMSTANCES, THE LEAST THAT SHOULD BE DONE IS TO VACATE
THE JUDGMENT BELOW AND REMAND THE CASE TO THE DISTRICT COURT FOR
CLARIFICATION OF ITS OPINION AS TO THE STATUS OF ALABAMA LAW.  CF. ALMA
MOTOR CO. V. TIMKEN CO., SUPRA. 

FOR THESE REASONS, I RESPECTFULLY DISSENT FROM THE COURT'S
DISPOSITION OF THIS CASE. 

FN1  AS THE COURT POINTS OUT, ANTE, AT 39, 40, PETITIONER WAS AN
ALABAMA RESIDENT, AND WAS INJURED WHILE WORKING IN ALABAMA. 

FN2  JUDGE GROOMS STATED, 224 F. SUPP., AT 88: 

"SINCE THE DEKALB COUNTY CIRCUIT COURT DID NOT HAVE JURISDICTION OF
THE SUBJECT MATTER, THE ISSUE OF JURISDICTION IS OPEN TO INQUIRY AND
WHERE, AS HERE, THE RECORD DISCLOSES A LACK OF JURISDICTION, THE
JUDGMENT IS VOID.  CITY OF BIRMINGHAM V. REED, 35 ALA. APP. 31, 44 SO.
2D 607; MURPHY V. LOUISVILLE & N.R. CO., 258 ALA. 138, 61 SO. 2D 3;
CRUMP V. KNIGHT, 256 ALA. 601, 56 SO. 2D 625; FREEMAN V. MCBROOM, 11
ALA. 943. 

"A PARTY OR HIS PRIVIES MAY ASSAIL SUCH A JUDGMENT.  FIFE V. PIONEER
LUMBER CO., 237 ALA. 92, 185 SO. 759; COBBS V. NORVILLE, 227 ALA. 621,
151 SO. 576." 

FN3  THE CASES CITED AT 359, N. 2, WERE:  ELLIOTT V. DE SOTO CRUDE
OIL PURCHASING CORP., 20 F. SUPP. 743; FRANZEN V. E.I. DU PONT DE
NEMOURS & CO., 146 F.2D 837; LOGAN V. MISSOURI VALLEY BRIDGE & IRON
CO., 157 ARK. 528, 249 S.W. 21; AND OREN V. SWIFT & CO., 330 MO. 869,
51 S.W.2D 59. 

FN4  THIS IS CLEAR WHEN SEC. 618, COMMENT A, IS READ IN CONJUNCTION
WITH SECS. 1, 2, AND 5 AND THE COMMENTS THERETO.  IN THIS REGARD, SECS.
117L AND 117M OF RESTATEMENT SECOND, CONFLICT OF LAWS, TENTATIVE DRAFT
NO. 4 (1957), SHOULD ALSO BE COMPARED. 

FN5  SEE 2 LARSON, WORKMEN'S COMPENSATION LAW 356 (1961); GOODRICH,
CONFLICT OF LAWS 189 (1964); EHRENZWEIG, CONFLICT OF LAWS 145, NN. 23,
32 (1962). 

FN6  IN ADDITION TO THE CASES CITED IN NOTE 2, SUPRA, AND SINGLETON
V. HOPE ENGINEERING CO., 223 ALA. 538, 137 SO. 441, DISCUSSED INFRA,
SEE MOSELY V. EMPIRE GAS & FUEL CO., 313 MO. 225, 281 S.W. 762; DAVIS
V. SWIFT & CO., 175 TENN. 210, 133 S.W.2D 483; GRENIER V. ALTA CREST
FARMS, INC., 115 VT. 324, 58 A.2D 884. 

FN7 SEE NOTE 2, SUPRA.  IT SHOULD BE NOTED THAT THE CASES CITED BY
JUDGE GROOMS ALL CONCERNED SITUATIONS WHERE THE LACK OF SUBJECT MATTER
JURISDICTION WAS A MATTER OF STATE LAW SIMILAR TO THE SINGLETON
SITUATION. 

FN8  IT IS SIGNIFICANT IN THIS REGARD THAT THE TENTATIVE DRAFT OF THE
SECOND RESTATEMENT OF THE LAW OF CONFLICT OF LAWS REAFFIRMS THIS
GENERAL RULE.  SEE RESTATEMENT SECOND, CONFLICT OF LAWS, TENTATIVE
DRAFT NO. 4, SEC. 117M (1957). 
..END :








FREEDMAN V. MARYLAND 380 U.S. 51 


NO. 69.  ARGUED NOVEMBER 19, 1964.  - DECIDED MARCH 1, 1965.  - 233 MD.
498, 197 A.2D 232, REVERSED. 


APPELLANT WAS CONVICTED OF EXHIBITING A MOTION PICTURE WITHOUT
SUBMITTING IT TO THE MARYLAND STATE BOARD OF CENSORS FOR PRIOR
APPROVAL, DESPITE HIS CONTENTION THAT THE MOTION PICTURE CENSORSHIP
STATUTE UNCONSTITUTIONALLY IMPAIRED FREEDOM OF EXPRESSION.  THE
MARYLAND COURT OF APPEALS AFFIRMED.  HELD: 

1.  WHERE MOTION PICTURES ARE CONCERNED, A REQUIREMENT OF PRIOR
SUBMISSION TO A CENSORSHIP BOARD IS NOT NECESSARILY UNCONSTITUTIONAL. 
TIMES FILM CORP. V. CITY OF CHICAGO, 365 U.S. 43.  PP. 53-54. 

2.  ONE CAN CHALLENGE A LICENSING STATUTE WHICH ENDANGERS FREEDOM OF
EXPRESSION, WHETHER OR NOT HIS CONDUCT COULD BE PROHIBITED BY A
PROPERLY DRAWN STATUTE AND WHETHER OR NOT HE APPLIED FOR A LICENSE.  P.
56. 

3.  THERE IS HEAVY PRESUMPTION AGAINST THE CONSTITUTIONAL VALIDITY OF
PRIOR RESTRAINTS OF EXPRESSION.  BANTAM BOOKS, INC. V. SULLIVAN, 372
U.S. 58, 70.  P. 57. 

4.  A NONCRIMINAL PROCESS REQUIRING PRIOR SUBMISSION OF A FILM TO A
CENSOR AVOIDS CONSTITUTIONAL INVALIDITY ONLY WITH PROCEDURAL SAFEGUARDS
DESIGNED TO ELIMINATE THE DANGERS OF CENSORSHIP.  PP. 58-60. 

(A)  THE CENSOR MUST HAVE THE BURDEN OF PROVING THAT THE FILM IS
EXPRESSION UNPROTECTED BY THE CONSTITUTION.  P. 58. 

(B)  ANY RESTRAINT PRIOR TO JUDICIAL REVIEW MUST BE LIMITED TO
PRESERVATION OF THE STATUS QUO AND FOR THE SHORTEST PERIOD COMPATIBLE
WITH SOUND JUDICIAL PROCEDURE.  PP. 58-59. 

(C)  A PROMPT FINAL JUDICIAL DETERMINATION OF OBSCENITY MUST BE
ASSURED.  P. 59. 

5.  THE ABSENCE IN THE MARYLAND PROCEDURE OF ADEQUATE SAFEGUARDS
AGAINST UNDUE INHIBITION OF PROTECTED EXPRESSION RENDERS THE STATUTORY
REQUIREMENT OF PRIOR SUBMISSION TO CENSORSHIP AN INVALID PREVIOUS
RESTRAINT.  PP. 59-60. 

FREEDMAN V. MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANT SOUGHT TO CHALLENGE THE CONSTITUTIONALITY OF THE MARYLAND
MOTION PICTURE CENSORSHIP STATUTE, MD. ANN. CODE, 1957, ART. 66A, AND
EXHIBITED THE FILM "REVENGE AT DAYBREAK" AT HIS BALTIMORE THEATRE
WITHOUT FIRST SUBMITTING THE PICTURE TO THE STATE BOARD OF CENSORS AS
REQUIRED BY SEC. 2 THEREOF.  (FN1)  THE STATE CONCEDES THAT THE PICTURE
DOES NOT VIOLATE THE STATUTORY STANDARDS (FN2) AND WOULD HAVE RECEIVED
A LICENSE IF PROPERLY SUBMITTED, BUT THE APPELLANT WAS CONVICTED OF A
SEC. 2 VIOLATION DESPITE HIS CONTENTION THAT THE STATUTE IN ITS
ENTIRETY UNCONSTITUTIONALLY IMPAIRED FREEDOM OF EXPRESSION.  THE COURT
OF APPEALS OF MARYLAND AFFIRMED, 233 MD. 498, 197 A.2D 232, AND WE
NOTED PROBABLE JURISDICTION, 377 U.S. 987.  WE REVERSE. 

                                          I. 

IN TIMES FILM CORP. V. CITY OF CHICAGO, 365 U.S. 43, WE CONSIDERED
AND UPHELD A REQUIREMENT OF SUBMISSION OF MOTION PICTURES IN ADVANCE OF
EXHIBITION.  THE COURT OF APPEALS HELD, ON THE AUTHORITY OF THAT
DECISION, THAT "THE MARYLAND CENSORSHIP LAW MUST BE HELD TO BE NOT VOID
ON ITS FACE AS VIOLATIVE OF THE FREEDOMS PROTECTED AGAINST STATE ACTION
BY THE FIRST AND FOURTEENTH AMENDMENTS."  233 MD., AT 505, 197 A.2D, AT
235.  THIS RELIANCE ON TIMES FILM WAS MISPLACED.  THE ONLY QUESTION
TENDERED FOR DECISION IN THAT CASE WAS "WHETHER A PRIOR RESTRAINT WAS
NECESSARILY UNCONSTITUTIONAL UNDER ALL CIRCUMSTANCES."  BANTAM BOOKS,
INC. V. SULLIVAN, 372 U.S. 58, 70, N. 10.  THE EXHIBITOR'S ARGUMENT
THAT THE REQUIREMENT OF SUBMISSION WITHOUT MORE AMOUNTED TO A
CONSTITUTIONALLY PROHIBITED PRIOR RESTRAINT WAS INTERPRETED BY THE
COURT IN TIMES FILM AS A CONTENTION THAT THE "CONSTITUTIONAL PROTECTION
INCLUDES COMPLETE AND ABSOLUTE FREEDOM TO EXHIBIT, AT LEAST ONCE, ANY
AND EVERY KIND OF MOTION PICTURE  ...  EVEN IF THIS FILM CONTAINS THE
BASEST TYPE OF PORNOGRAPHY, OR INCITEMENT TO RIOT, OR FORCEFUL
OVERTHROW OF ORDERLY GOVERNMENT  ...  ."  365 U.S., AT 46, 47.  THE
COURT HELD THAT ON THIS "NARROW" QUESTION, ID., AT 46, THE ARGUMENT
STATED THE PRINCIPLE AGAINST PRIOR RESTRAINTS TOO BROADLY; CITING A
NUMBER OF OUR DECISIONS, THE COURT QUOTED THE STATEMENT FROM NEAR V.
MINNESOTA, 283 U.S. 697, 716, THAT "THE PROTECTION EVEN AS TO PREVIOUS
RESTRAINT IS NOT ABSOLUTELY UNLIMITED."  IN REJECTING THE PROFFERED
PROPOSITION IN TIMES FILM THE COURT EMPHASIZED, HOWEVER, THAT "IT IS
THAT QUESTION ALONE WHICH WE DECIDE," 365 U.S., AT 46, AND IT WOULD
THEREFORE BE INACCURATE TO SAY THAT TIMES FILM UPHELD THE SPECIFIC
FEATURES OF THE CHICAGO CENSORSHIP ORDINANCE. 

UNLIKE THE PETITIONER IN TIMES FILM, APPELLANT DOES NOT ARGUE THAT
SEC. 2 IS UNCONSTITUTIONAL SIMPLY BECAUSE IT MAY PREVENT EVEN THE FIRST
SHOWING OF A FILM WHOSE EXHIBITION MAY LEGITIMATELY BE THE SUBJECT OF
AN OBSCENITY PROSECUTION.  HE PRESENTS A QUESTION QUITE DISTINCT FROM
THAT PASSED ON IN TIMES FILM; ACCEPTING THE RULE IN TIMES FILM, HE
ARGUES THAT SEC. 2 CONSTITUTES AN INVALID PRIOR RESTRAINT BECAUSE, IN
THE CONTEXT OF THE REMAINDER OF THE STATUTE, IT PRESENTS A DANGER OF
UNDULY SUPPRESSING PROTECTED EXPRESSION.  HE FOCUSES PARTICULARLY ON
THE PROCEDURE FOR AN INITIAL DECISION BY THE CENSORSHIP BOARD, WHICH,
WITHOUT ANY JUDICIAL PARTICIPATION, EFFECTIVELY BARS EXHIBITION OF ANY
DISAPPROVED FILM, UNLESS AND UNTIL THE EXHIBITOR UNDERTAKES A TIME
CONSUMING APPEAL TO THE MARYLAND COURTS AND SUCCEEDS IN HAVING THE
BOARD'S DECISION REVERSED.  UNDER THE STATUTE, THE EXHIBITOR IS
REQUIRED TO SUBMIT THE FILM TO THE BOARD FOR EXAMINATION, BUT NO TIME
LIMIT IS IMPOSED FOR COMPLETION OF BOARD ACTION, SEC. 17.  IF THE FILM
IS DISAPPROVED, OR ANY ELIMINATION ORDERED, SEC. 19 PROVIDES THAT: 

"THE PERSON SUBMITTING SUCH FILM OR VIEW FOR EXAMINATION WILL RECEIVE
IMMEDIATE NOTICE OF SUCH ELIMINATION OR DISAPPROVAL, AND IF APPEALED
FROM, SUCH FILM OR VIEW WILL BE PROMPTLY RE-EXAMINED, IN THE PRESENCE
OF SUCH PERSON, BY TWO OR MORE MEMBERS OF THE BOARD, AND THE SAME
FINALLY APPROVED OR DISAPPROVED PROMPTLY AFTER SUCH RE-EXAMINATION,
WITH THE RIGHT OF APPEAL FROM THE DECISION OF THE BOARD TO THE
BALTIMORE CITY COURT OF BALTIMORE CITY.  THERE SHALL BE A FURTHER RIGHT
OF APPEAL FROM THE DECISION OF THE BALTIMORE CITY COURT TO THE COURT OF
APPEALS OF MARYLAND, SUBJECT GENERALLY TO THE TIME AND MANNER PROVIDED
FOR TAKING APPEAL TO THE COURT OF APPEALS." 

THUS THERE IS NO STATUTORY PROVISION FOR JUDICIAL PARTICIPATION IN
THE PROCEDURE WHICH BARS A FILM, NOR EVEN ASSURANCE OF PROMPT JUDICIAL
REVIEW.  RISK OF DELAY IS BUILT INTO THE MARYLAND PROCEDURE, AS IS
BORNE OUT BY EXPERIENCE; IN THE ONLY REPORTED CASE INDICATING THE
LENGTH OF TIME REQUIRED TO COMPLETE AN APPEAL, THE INITIAL JUDICIAL
DETERMINATION HAS TAKEN FOUR MONTHS AND FINAL VINDICATION OF THE FILM
ON APPELLATE REVIEW, SIX MONTHS.  UNITED ARTISTS CORP. V. MARYLAND
STATE BOARD OF CENSORS, 210 MD. 586, 124 A.2D 292. 

IN THE LIGHT OF THE DIFFERENCE BETWEEN THE ISSUES PRESENTED HERE IN
TIMES FILM, THE COURT OF APPEALS ERRED IN SAYING THAT, SINCE
APPELLANT'S REFUSAL TO SUBMIT THE FILM TO THE BOARD WAS A VIOLATION
ONLY OF SEC. 2, "HE HAS RESTRICTED HIMSELF TO AN ATTACK ON THAT SECTION
ALONE, AND LACKS STANDING TO CHALLENGE ANY OF THE OTHER PROVISIONS (OR
ALLEGED SHORTCOMINGS) OF THE STATUTE."  233 MD., AT 505, 197 A.2D, AT
236.  APPELLANT HAS NOT CHALLENGED THE SUBMISSION REQUIREMENT IN A
VACUUM BUT IN A CONCRETE STATUTORY CONTEXT.  HIS CONTENTION IS THAT
SEC. 2 EFFECTS AN INVALID PRIOR RESTRAINT BECAUSE THE STRUCTURE OF THE
OTHER PROVISIONS OF THE STATUTE CONTRIBUTES TO THE INFIRMITY OF SEC. 2;
HE DOES NOT ASSERT THAT THE OTHER PROVISIONS ARE INDEPENDENTLY
INVALID. 

IN THE AREA OF FREEDOM OF EXPRESSION IT IS WELL ESTABLISHED THAT ONE
HAS STANDING TO CHALLENGE A STATUTE ON THE GROUND THAT IT DELEGATES
OVERLY BROAD LICENSING DISCRETION TO AN ADMINISTRATIVE OFFICE, WHETHER
OR NOT HIS CONDUCT COULD BE PROSCRIBED BY A PROPERLY DRAWN STATUTE, AND
WHETHER OR NOT HE APPLIED FOR A LICENSE.  "ONE WHO MIGHT HAVE HAD A
LICENSE FOR THE ASKING MAY  ...  CALL INTO QUESTION THE WHOLE SCHEME OF
LICENSING WHEN HE IS PROSECUTED FOR FAILURE TO PROCURE IT."  THORNHILL
V. ALABAMA, 310 U.S. 88, 97; SEE STAUB V. CITY OF BAXLEY, 355 U.S. 313,
319; SAIA V. NEW YORK, 334 U.S. 558; THOMAS V. COLLINS, 323 U.S. 516;
HAGUE V. CIO, 307 U.S. 496; LOVELL V. CITY OF GRIFFIN, 303 U.S. 444,
452-453.  STANDING IS RECOGNIZED IN SUCH CASES BECAUSE OF THE "  ...
DANGER OF TOLERATING, IN THE AREA OF FIRST AMENDMENT FREEDOMS, THE
EXISTENCE OF A PENAL STATUTE SUSCEPTIBLE OF SWEEPING AND IMPROPER
APPLICATION."  NAACP V. BUTTON, 371 U.S. 415, 433; SEE ALSO AMSTERDAM,
NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN THE SUPREME COURT, 109 U. PA.
L. REV. 67, 75-76, 80-81, 96-104 (1960).  ALTHOUGH WE HAVE NO OCCASION
TO DECIDE WHETHER THE VICE OF OVERBROADNESS INFECTS THE MARYLAND
STATUTE, (FN3) WE THINK THAT APPELLANT'S ASSERTION OF A SIMILAR DANGER
IN THE MARYLAND APPARATUS OF CENSORSHIP - ONE ALWAYS FRAUGHT WITH
DANGER AND VIEWED WITH SUSPICION - GIVES HIM STANDING TO MAKE THAT
CHALLENGE.  IN SUBSTANCE HIS ARGUMENT IS THAT, BECAUSE THE APPARATUS
OPERATES IN A STATUTORY CONTEXT IN WHICH JUDICIAL REVIEW MAY BE TOO
LITTLE AND TOO LATE, THE MARYLAND STATUTE LACKS SUFFICIENT SAFEGUARDS
FOR CONFINING THE CENSOR'S ACTION TO JUDICIALLY DETERMINED
CONSTITUTIONAL LIMITS, AND THEREFORE CONTAINS THE SAME VICE AS A
STATUTE DELEGATING EXCESSIVE ADMINISTRATIVE DISCRETION. 

                              II. 

ALTHOUGH THE COURT HAS SAID THAT MOTION PICTURES ARE NOT "NECESSARILY
SUBJECT TO  THE PRECISE RULES GOVERNING ANY OTHER PARTICULAR METHOD OF
EXPRESSION," JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495, 503, IT IS
AS TRUE HERE AS OF OTHER FORMS OF EXPRESSION THAT "ANY SYSTEM OF PRIOR
RESTRAINTS OF EXPRESSION COMES TO THIS COURT BEARING A HEAVY
PRESUMPTION AGAINST ITS CONSTITUTIONAL VALIDITY."  BANTAM BOOKS, INC.
V. SULLIVAN, SUPRA, AT 70.  "  ...  UNDER THE FOURTEENTH AMENDMENT, A
STATE IS NOT FREE TO ADOPT WHATEVER PROCEDURES IT PLEASES FOR DEALING
WITH OBSCENITY  ...  WITHOUT REGARD TO THE POSSIBLE CONSEQUENCES FOR
CONSTITUTIONALLY PROTECTED SPEECH."  MARCUS V. SEARCH WARRANT, 367 U.S.
717, 731.  THE ADMINSTRATION OF A CENSORSHIP SYSTEM FOR MOTION PICTURES
PRESENTS PECULIAR DANGERS TO CONSTITUTIONALLY PROTECTED SPEECH.  UNLIKE
A PROSECUTION FOR OBSCENITY, A CENSORSHIP PROCEEDING PUTS THE INITIAL
BURDEN ON THE EXHIBITOR OR DISTRIBUTOR.  BECAUSE THE CENSOR'S BUSINESS
IS TO CENSOR, THERE INHERES THE DANGER THAT HE MAY WELL BE LESS
RESPONSIVE THAN A COURT - PART OF AN INDEPENDENT BRANCH OF GOVERNMENT -
TO THE CONSTITUTIONALLY PROTECTED INTERESTS IN FREE EXPRESSION.  (FN4)
AND IF IT IS MADE UNDULY ONEROUS, BY REASON OF DELAY OR OTHERWISE, TO
SEEK JUDICIAL REVIEW, THE CENSOR'S DETERMINATION MAY IN PRACTICE BE
FINAL. 

APPLYING THE SETTLED RULE OF OUR CASES, WE HOLD THAT A NONCRIMINAL
PROCESS WHICH REQUIRES THE PRIOR SUBMISSION OF A FILM TO A CENSOR
AVOIDS CONSTITUTIONAL INFIRMITY ONLY IF IT TAKES PLACE UNDER PROCEDURAL
SAFEGUARDS DESIGNED TO OBVIATE THE DANGERS OF A CENSORSHIP SYSTEM. 
FIRST, THE BURDEN OF PROVING THAT THE FILM IS UNPROTECTED EXPRESSION
MUST REST ON THE CENSOR.  AS WE SAID IN SPEISER V. RANDALL, 357 U.S.
513, 526, "WHERE THE TRANSCENDENT VALUE OF SPEECH IS INVOLVED, DUE
PROCESS CERTAINLY REQUIRES  ...  THAT THE STATE BEAR THE BURDEN OF
PERSUASION TO SHOW THAT THE APPELLANTS ENGAGED IN CRIMINAL SPEECH." 
SECOND, WHILE THE STATE MAY REQUIRE ADVANCE SUBMISSION OF ALL FILMS, IN
ORDER TO PROCEED EFFECTIVELY TO BAR ALL SHOWINGS OF UNPROTECTED FILMS,
THE REQUIREMENT CANNOT BE ADMINISTERED IN A MANNER WHICH WOULD LEND AN
EFFECT OF FINALITY TO THE CENSOR'S DETERMINATION WHETHER A FILM
CONSTITUTES PROTECTED EXPRESSION.  THE TEACHING OF OUR CASES IS THAT,
BECAUSE ONLY A JUDICIAL DETERMINATION IN AN ADVERSARY PROCEEDING
ENSURES THE NECESSARY SENSITIVITY TO FREEDOM OF EXPRESSION, ONLY A
PROCEDURE REQUIRING A JUDICIAL DETERMINATION SUFFICES TO IMPOSE A VALID
FINAL RESTRAINT.  SEE BANTAM BOOKS, INC. V. SULLIVAN, SUPRA; A QUANTITY
OF BOOKS V. KANSAS, 378 U.S. 205; MARCUS V. SEARCH WARRANT, SUPRA;
MANUAL ENTERPRISES, INC. V. DAY, 370 U.S. 478, 518-519.  TO THIS END,
THE EXHIBIT MUST BE ASSURED, BY STATUTE OR AUTHORITATIVE JUDICIAL
CONSTRUCTION, THAT THE CENSOR WILL, WITHIN A SPECIFIED BRIEF PERIOD,
EITHER ISSUE A LICENSE OR GO TO COURT TO RESTRAIN SHOWING THE FILM. 
ANY RESTRAINT IMPOSED IN ADVANCE OF A FINAL JUDICIAL DETERMINATION ON
THE MERITS MUST SIMILARLY BE LIMITED TO PRESERVATION OF THE STATUS QUO
FOR THE SHORTEST FIXED PERIOD COMPATIBLE WITH SOUND JUDICIAL
RESOLUTION.  MOREOVER, WE ARE WELL AWARE THAT, EVEN AFTER EXPIRATION OF
A TEMPORARY RESTRAINT, AN ADMINISTRATIVE REFUSAL TO LICENSE, SIGNIFYING
THE CENSOR'S VIEW THAT THE FILM IS UNPROTECTED, MAY HAVE A DISCOURAGING
EFFECT ON THE EXHIBITOR.  SEE BANTAM BOOKS, INC. V. SULLIVAN, SUPRA.
THEREFORE, THE PROCEDURE MUST ALSO ASSURE A PROMPT FINAL JUDICIAL
DECISION, TO MINIMIZE THE DETERRENT EFFECT OF AN INTERIM AND POSSIBLY
ERRONEOUS DENIAL OF A LICENSE. 

WITHOUT THESE SAFEGUARDS, IT MAY PROVE TOO BURDENSOME TO SEEK REVIEW
OF THE CENSOR'S DETERMINATION.  PARTICULARLY IN THE CASE OF MOTION
PICTURES, IT MAY TAKE VERY LITTLE TO DETER EXHIBITION IN A GIVEN
LOCALITY.  THE EXHIBITOR'S STAKE IN ANY ONE PICTURE MAY BE INSUFFICIENT
TO WARRANT A PROTRACTED AND ONEROUS COURSE OF LITIGATION.  THE
DISTRIBUTOR, ON THE OTHER HAND, MAY BE EQUALLY UNWILLING TO ACCEPT THE
BURDENS AND DELAYS OF LITIGATION IN A PARTICULAR AREA WHEN, WITHOUT
SUCH DIFFICULTIES, HE CAN FREELY EXHIBIT HIS FILM IN MOST OF THE REST
OF THE COUNTRY; FOR WE ARE TOLD THAT ONLY FOUR STATES AND A HANDFUL OF
MUNICIPALITIES HAVE ACTIVE CENSORSHIP LAWS.  (FN5) 

IT IS READILY APPARENT THAT THE MARYLAND PROCEDURAL SCHEME DOES NOT
SATISFY THESE CRITERIA.  FIRST, ONCE THE CENSOR DISAPPROVES THE FILM,
THE EXHIBITOR MUST ASSUME THE BURDEN OF INSTITUTING JUDICIAL
PROCEEDINGS AND OF PERSUADING THE COURTS THAT THE FILM IS PROTECTED
EXPRESSION.  SECOND, ONCE THE BOARD HAS ACTED AGAINST A FILM,
EXHIBITION IS PROHIBITED PENDING JUDICIAL REVIEW, HOWEVER PROTRACTED. 
UNDER THE STATUTE, APPELLANT COULD HAVE BEEN CONVICTED IF HE HAD SHOWN
THE FILM AFTER UNSUCCESSFULLY SEEKING A LICENSE, EVEN THOUGH NO COURT
HAD EVER RULED ON THE OBSCENITY OF THE FILM.  THIRD, IT IS ABUNDANTLY
CLEAR THAT THE MARYLAND STATUTE PROVIDES NO ASSURANCE OF PROMPT
JUDICIAL DETERMINATION.  WE HOLD, THEREFORE, THAT APPELLANT'S
CONVICTION MUST BE REVERSED.  THE MARYLAND SCHEME FAILS TO PROVIDE
ADEQUATE SAFEGUARDS AGAINST UNDUE INHIBITION OF PROTECTED EXPRESSION,
AND THIS RENDERS THE SEC. 2 REQUIREMENT OF PRIOR SUBMISSION OF FILMS TO
THE BOARD AN INVALID PREVIOUS RESTRAINT. 

                          III. 

HOW OR WHETHER MARYLAND IS TO INCORPORATE THE REQUIRED PROCEDURAL
SAFEGUARDS IN THE STATUTORY SCHEME IS, OF COURSE, FOR THE STATE TO
DECIDE.  BUT A MODEL IS NOT LACKING:  IN KINGSLEY BOOKS, INC. V. BROWN,
354 U.S. 436, WE UPHELD A NEW YORK INJUNCTIVE PROCEDURE DESIGNED TO
PREVENT THE SALE OF OBSCENE BOOKS.  THAT PROCEDURE POSTPONES ANY
RESTRAINT AGAINST SALE UNTIL A JUDICIAL DETERMINATION OF OBSCENITY
FOLLOWING NOTICE AND AN ADVERSARY HEARING.  THE STATUTE PROVIDES FOR A
HEARING ONE DAY AFTER JOINDER OF ISSUE; THE JUDGE MUST HAND DOWN HIS
DECISION WITHIN TWO DAYS AFTER TERMINATION OF THE HEARING.  THE NEW
YORK PROCEDURE OPERATES WITHOUT PRIOR SUBMISSION TO A CENSOR, BUT THE
CHILLING EFFECT OF A CENSORSHIP ORDER, EVEN ONE WHICH REQUIRES JUDICIAL
ACTION FOR ITS ENFORCEMENT, SUGGESTS ALL THE MORE REASON FOR
EXPEDITIOUS DETERMINATION OF THE QUESTION WHETHER A PARTICULAR FILM IS
CONSTITUTIONALLY PROTECTED.    THE REQUIREMENT OF PRIOR SUBMISSION TO A
CENSOR SUSTAINED IN TIMES FILM IS CONSISTENT WITH OUR RECOGNITION THAT
FILMS DIFFER FROM OTHER FORMS OF EXPRESSION.  SIMILARLY, WE THINK THAT
THE NATURE OF THE MOTION PICTURE INDUSTRY MAY SUGGEST DIFFERENT TIME
LIMITS FOR A JUDICIAL DETERMINATION.  IT IS COMMON KNOWLEDGE THAT FILMS
ARE SCHEDULED WELL BEFORE ACTUAL EXHIBITION, AND THE REQUIREMENT OF
ADVANCE SUBMISSION IN SEC. 2 RECOGNIZES THIS.  ONE POSSIBLE SCHEME
WOULD BE TO ALLOW THE EXHIBITOR OR DISTRIBUTOR TO SUBMIT HIS FILM EARLY
ENOUGH TO ENSURE AN ORDERLY FINAL DISPOSITION OF THE CASE BEFORE THE
SCHEDULED EXHIBITION DATE - FAR ENOUGH IN ADVANCE SO THAT THE EXHIBITOR
COULD SAFELY ADVERTISE THE OPENING ON A NORMAL BASIS.  FAILING SUCH A
SCHEME OR SUFFICIENTLY EARLY SUBMISSION UNDER SUCH A SCHEME, THE
STATUTE WOULD HAVE TO REQUIRE ADJUDICATION CONSIDERABLY MORE PROMPT
THAN HAS BEEN THE CASE UNDER THE MARYLAND STATUTE.  OTHERWISE,
LITIGATION MIGHT BE UNDULY EXPENSIVE AND PROTRACTED, OR THE VICTORIOUS
EXHIBITOR MIGHT FIND THE MOST PROPITIOUS OPPORTUNITY FOR EXHIBITION
PAST.  WE DO NOT MEAN TO LAY DOWN RIGID TIME LIMITS OR PROCEDURES, BUT
TO SUGGEST CONSIDERATIONS IN DRAFTING LEGISLATION TO ACCORD WITH LOCAL
EXHIBITION PRACTICES, AND IN DOING SO TO AVOID THE POTENTIALLY CHILLING
EFFECT OF THE MARYLAND STATUTE ON PROTECTED EXPRESSION.  REVERSED. 

FN1  MD. ANN. CODE, 1957, ART. 66A, SEC. 2: 

"IT SHALL BE UNLAWFUL TO SELL, LEASE, LEND, EXHIBIT OR USE ANY MOTION
PICTURE FILM OR VIEW IN THE STATE OF MARYLAND UNLESS THE SAID FILM OR
VIEW HAS BEEN SUBMITTED BY THE EXCHANGE, OWNER OR LESSEE OF THE FILM OR
VIEW AND DULY APPROVED AND LICENSED BY THE MARYLAND STATE BOARD OF
CENSORS, HEREINAFTER IN THIS ARTICLE CALLED THE BOARD." 

FN2  MD. ANN. CODE, 1957, ART. 66A, SEC. 6: 

"(A)  BOARD TO EXAMINE, APPROVE OR DISAPPROVE FILMS - THE BOARD SHALL
EXAMINE OR SUPERVISE THE EXAMINATION OF ALL FILMS OR VIEWS TO BE
EXHIBITED OR USED IN THE STATE OF MARYLAND AND SHALL APPROVE AND
LICENSE SUCH FILMS OR VIEWS WHICH ARE MORAL AND PROPER, AND SHALL
DISAPPROVE SUCH AS ARE OBSCENE, OR SUCH AS TEND, IN THE JUDGMENT OF THE
BOARD, TO DEBASE OR CORRUPT MORALS OR INCITE TO CRIMES.  ALL FILMS
EXCLUSIVELY PORTRAYING CURRENT EVENTS OR PICTORIAL NEWS OF THE DAY,
COMMONLY CALLED NEWS REELS, MAY BE EXHIBITED WITHOUT EXAMINATION AND NO
LICENSE OR FEES SHALL BE REQUIRED THEREFOR. 

"(B)  WHAT FILMS CONSIDERED OBSCENE.  - FOR THE PURPOSES OF THIS
ARTICLE, A MOTION PICTURE FILM OR VIEW SHALL BE CONSIDERED TO BE
OBSCENE IF, WHEN CONSIDERED AS A WHOLE, ITS CALCULATED PURPOSE OR
DOMINANT EFFECT IS SUBSTANTIALLY TO AROUSE SEXUAL DESIRES, AND IF THE
PROBABILITY OF THIS EFFECT IS SO GREAT AS TO OUTWEIGH WHATEVER OTHER
MERITS THE FILM MAY POSSESS. 

"(C)  WHAT FILMS TEND TO DEBASE OR CORRUPT MORALS.  - FOR THE
PURPOSES OF THIS ARTICLE, A MOTION PICTURE FILM OR VIEW SHALL BE
CONSIDERED TO BE OF SUCH A CHARACTER THAT ITS EXHIBITION WOULD TEND TO
DEBASE OR CORRUPT MORALS IF ITS DOMINANT PURPOSE OR EFFECT IS EROTIC OR
PORNOGRAPHIC; OR IF IT PORTRAYS ACTS OF SEXUAL IMMORALITY, LUST OR
LEWDNESS, OR IF IT EXPRESSLY OR IMPLIEDLY PRESENTS SUCH ACTS AS
DESIRABLE, ACCEPTABLE OR PROPER PATTERNS OF BEHAVIOR. 

"(D)  WHAT FILMS TEND TO INCITE TO CRIME.  - FOR THE PURPOSES OF THIS
ARTICLE, A MOTION PICTURE FILM OR VIEW SHALL BE CONSIDERED OF SUCH A
CHARACTER THAT ITS EXHIBITION WOULD TEND TO INCITE TO CRIME IF THE
THEME OR THE MANNER OF ITS PRESENTATION PRESENTS THE COMMISSION OF
CRIMINAL ACTS OR CONTEMPT FOR LAW AS CONSTITUTING PROFITABLE,
DESIRABLE, ACCEPTABLE, RESPECTABLE OR COMMONLY ACCEPTED BEHAVIOR, OR IF
IT ADVOCATES OR TEACHES THE USE OF, OR THE METHODS OF USE OF, NARCOTICS
OR HABIT-FORMING DRUGS." 

FN3  APPELLANT ALSO CHALLENGES THE CONSTITUTIONALITY OF SEC. 6,
ESTABLISHING STANDARDS, AS INVALID FOR VAGUENESS UNDER THE DUE PROCESS
CLAUSE; SEC. 11, IMPOSING FEES FOR THE INSPECTION AND LICENSING OF A
FILM, AS CONSTITUTING AN INVALID TAX UPON THE EXERCISE OF FREEDOM OF
SPEECH; AND SEC. 23, ALLOWING EXEMPTIONS TO VARIOUS CLASSES OF
EXHIBITORS, AS DENYING HIM THE EQUAL PROTECTION OF THE LAWS.  IN VIEW
OF OUR RESULT, WE EXPRESS NO VIEWS UPON THESE CLAIMS. 

FN4  SEE EMERSON, THE DOCTRINE OF PRIOR RESTRAINT, 20 LAW & CONTEMP. 
PROB.  648, 656-659 (1955).  THIS IS WELL ILLUSTRATED BY THE FACT THAT
THE MARYLAND COURT OF APPEALS HAS REVERSED THE BOARD'S DISAPPROVAL IN
EVERY REPORTED CASE.  UNITED ARTISTS CORP. V. MARYLAND STATE BOARD OF
CENSORS, SUPRA; MARYLAND STATE BOARD OF CENSORS V. TIMES FILM CORP.,
212 MD. 454, 129 A.2D 833; FANFARE FILMS, INC. V. MOTION PICTURE CENSOR
BOARD, 234 MD. 10, 197 A.2D 839. 

FN5  AN APPENDIX TO THE BRIEF AMICI CURIAE OF THE AMERICAN CIVIL
LIBERTIES UNION AND ITS MARYLAND BRANCH LISTS NEW YORK, VIRGINIA AND
KANSAS AS THE THREE STATES HAVING STATUTES SIMILAR TO THE MARYLAND
STATUTE, AND THE CITIES OF CHICAGO, DETROIT, FORT WORTH AND PROVIDENCE
AS HAVING SIMILAR ORDINANCES.  TWENTY-EIGHT OF THE REMAINING 39
MUNICIPAL ORDINANCES AND CODES ARE LISTED AS "INACTIVE." 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 

ON SEVERAL OCCASIONS I HAVE INDICATED MY VIEW THAT MOVIES ARE
ENTITLED TO THE SAME DEGREE AND KIND OF PROTECTION UNDER THE FIRST
AMENDMENT AS OTHER FORMS OF EXPRESSION.  SUPERIOR FILMS V. DEPARTMENT
OF EDUCATION, 346 U.S. 587, 588; KINGSLEY PICTURES CORP. V. REGENTS,
360 U.S. 684, 697; TIMES FILM CORP. V. CHICAGO, 365 U.S. 43, 78.*  FOR
THE REASONS THERE STATED, I DO NOT BELIEVE ANY FORM OF CENSORSHIP - NO
MATTER HOW SPEEDY OR PROLONGED IT MAY BE - IS PERMISSIBLE.  AS I SEE
IT, A PICTORIAL PRESENTATION OCCUPIES AS PREFERRED A POSITION AS ANY
OTHER FORM OF EXPRESSION.  IF CENSORS ARE BANNED FROM THE PUBLISHING
BUSINESS, FROM THE PULPIT, FROM THE PUBLIC PLATFORM - AS THEY ARE -
THEY SHOULD BE BANNED FROM THE THEATRE.  I WOULD NOT ADMIT THE CENSOR
EVEN FOR THE LIMITED ROLE ACCORDED HIM IN KINGSLEY BOOKS, INC. V.
BROWN, 354 U.S. 436.  I ADHERE TO MY DISSENT IN THAT CASE.  ID., AT 446
447.  ANY AUTHORITY TO OBTAIN A TEMPORARY INJUNCTION GIVES THE STATE
"THE PARALYZING POWER OF A CENSOR."  ID., AT 446.  THE REGIME OF
KINGSLEY BOOKS "SUBSTITUTES PUNISHMENT BY CONTEMPT FOR PUNISHMENT BY
JURY TRIAL."  ID., AT 447.  I WOULD PUT AN END TO ALL FORMS AND TYPES
OF CENSORSHIP AND GIVE FULL LITERAL MEANING TO THE COMMAND OF THE FIRST
AMENDMENT. 

*THE COURT TODAY HOLDS THAT A SYSTEM OF MOVIE CENSORSHIP MUST CONTAIN
AT LEAST THREE PROCEDURAL SAFEGUARDS IF IT IS NOT TO RUN AFOUL OF THE
FIRST AMENDMENT:  (1) THE CENSOR MUST HAVE THE BURDEN OF INSTITUTING
JUDICIAL PROCEEDINGS; (2) ANY RESTRAINT PRIOR TO JUDICIAL REVIEW CAN BE
IMPOSED ONLY BRIEFLY IN ORDER TO PRESERVE THE STATUS QUO; AND (3) A
PROMPT JUDICIAL DETERMINATION OF OBSCENITY MUST BE ASSURED.  THUS THE
CHICAGO CENSORSHIP SYSTEM, UPHELD BY THE NARROWEST OF MARGINS IN TIMES
FILM CORP. V. CHICAGO, 365 U.S. 43, COULD NOT SURVIVE UNDER TODAY'S
STANDARDS, FOR IT PROVIDED NOT ONE OF THESE SAFEGUARDS, AS THE
DISSENTERS THERE EXPRESSLY POINTED OUT.  ID., AT 73-75. 
..END :

















UNITED STATES V. GAINEY 380 U.S. 63 


NO. 13.  ARGUED OCTOBER 15, 1964.  - DECIDED MARCH 1, 1965.  - 322 F.2D
292, REVERSED. 


RESPONDENT WAS CONVICTED OF ILLEGAL POSSESSION OF A STILL AND CARRYING
ON THE BUSINESS OF A DISTILLER WITHOUT A BOND, IN VIOLATION OF 26
U.S.C. SECS. 5601(A)(1) AND (4).  THE TRIAL JUDGE'S INSTRUCTIONS
INFORMED THE JURY OF STATUTORY PROVISIONS AUTHORIZING IT TO INFER GUILT
FROM RESPONDENT'S UNEXPLAINED PRESENCE AT THE STILL SITE.  THE COURT OF
APPEALS REVERSED THE CONVICTIONS AS VIOLATIVE OF DUE PROCESS
REQUIREMENTS.  HELD: 

1.  THE STATUTORY PRESUMPTION IN SEC. 5601(B)(2) IS CONSTITUTIONALLY
PERMISSIBLE SINCE THERE IS A RATIONAL CONNECTION BETWEEN A DEFENDANT'S
UNEXPLAINED PRESENCE AT A STILL AND THE COMPREHENSIVE CRIME OF THE
ILLEGAL DISTILLING OPERATION.  PP. 65-68. 

2.  THE STATUTE DEPRIVES THE TRIAL JUDGE OF NONE OF HIS NORMAL POWERS
WITH RESPECT TO SUBMITTING THE CASE TO THE JURY OR GRANTING A JUDGMENT
NOTWITHSTANDING A VERDICT.  P. 68. 

3.  THE STATUTE DOES NOT PREVENT THE JURY FROM BEING INSTRUCTED ON
THE STANDARDS FOR REASONABLE DOUBT AND THE JURY HERE WAS INSTRUCTED
THAT THE STATUTORY INFERENCE WAS NOT CONCLUSIVE.  PP. 68-70. 

UNITED STATES V. GAINEY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

AFTER A JURY TRIAL IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF GEORGIA, RESPONDENT JACKIE GAINEY WAS CONVICTED OF
VIOLATING 26 U.S.C. SEC. 5601(A)(1) (POSSESSION, CUSTODY OR CONTROL OF
A SET UP, UNREGISTERED STILL AND DISTILLING APPARATUS) AND 26 U.S.C.
SEC. 5601(A)(4) (CARRYING ON "THE BUSINESS OF A DISTILLER OR RECTIFIER
WITHOUT HAVING GIVEN BOND AS REQUIRED BY LAW").  (FN1)  IN THE COURSE
OF HIS INSTRUCTIONS THE TRIAL JUDGE INFORMED THE JURY OF TWO STATUTORY
PROVISIONS WHICH AUTHORIZE A JURY TO INFER GUILT OF THE SUBSTANTIVE
OFFENSES FROM THE FACT OF A DEFENDANT'S UNEXPLAINED PRESENCE AT THE
SITE OF AN ILLEGAL STILL.  (FN2)  THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT REVERSED THE CONVICTIONS ON THE GROUND THAT THESE STATUTORY
INFERENCES ARE UNCONSTITUTIONAL, (FN3) BECAUSE IT THOUGHT THE
CONNECTION BETWEEN UNEXPLAINED PRESENCE AT AN ILLEGAL STILL AND THE
SUBSTANTIVE OFFENSES OF "POSSESSION" AND "CARRYING ON" IS
INSUFFICIENTLY RATIONAL TO SATISFY THE DUE PROCESS REQUIREMENTS
FORMULATED BY THIS COURT IN TOT V. UNITED STATES, 319 U.S. 463.   WE
GRANTED CERTIORARI, SUB NOM.  UNITED STATES V. BARRETT, TO REVIEW THE
EXERCISE OF THE GRAVE POWER OF ANNULLING AN ACT OF CONGRESS.  375 U.S.
962. 

IF EITHER STATUTORY INFERENCE IS VALID, THE JUDGMENT OF THE COURT OF
APPEALS MUST BE REVERSED, BECAUSE CONCURRENT SENTENCES WERE IMPOSED BY
THE DISTRICT COURT.  EMSPAK V. UNITED STATES, 349 U.S. 190, 195;
SINCLAIR V. UNITED STATES, 279 U.S. 263, 299 (1929).  WE FIND THE
INFERENCE AUTHORIZED BY SEC. 5601(B)(2) CONSTITUTIONALLY PERMISSIBLE,
AND THEREFORE REVERSE THE JUDGMENT WITHOUT REACHING THE VALIDITY OF
SEC. 5601(B)(1). 

THE LEGISLATIVE RECORD SHOWS THAT CONGRESS ENACTED THESE PROVISIONS
BECAUSE OF "THE PRACTICAL IMPOSSIBILITY OF PROVING  ...  ACTUAL
PARTICIPATION IN THE ILLEGAL ACTIVITIES EXCEPT BY INFERENCE DRAWN FROM
THE DEFENDANT'S PRESENCE WHEN THE ILLEGAL ACTS WERE COMMITTED  ...  ." 
(FN4)  THE STATUTES WERE PASSED AGAINST A BACKDROP OF VARYING
FORMULATIONS AMONT THE CIRCUITS OF THE STANDARD WHICH SHOULD SHAPE A
TRIAL JUDGE'S INSTRUCTIONS TO A JURY IN TELLING IT WHAT WEIGHT TO
ACCORD THE FACT OF A DEFENDANT'S UNEXPLAINED PRESENCE AT AN ILLEGAL
STILL SITE.  LONG BEFORE 1958, THE YEAR THE STATUTES WERE ENACTED,
TRIAL JUDGES HAD BEEN INSTRUCTING JURIES THAT A DEFENDANT'S PRESENCE AT
A STILL COULD BE CONSIDERED BY THEM IN DETERMINING WHETHER THE
DEFENDANT HAD PARTICIPATED IN CARRYING ON THE ILLEGAL OPERATION. 
BARTON V. UNITED STATES, 267 F. 174, 175-176 (C.A. 4TH CIR.).  COMPARE
WILSON V. UNITED STATES, 162 U.S. 613.  THE FOURTH CIRCUIT HAD ENDORSED
SUCH A CHARGE.  BARTON V. UNITED STATES, SUPRA.  IN THE THIRD AND FIFTH
CIRCUITS THE PRECEDENTS WERE LESS CLEAR.  SEE GRACEFFO V. UNITED
STATES, 46 F.2D 852 (C.A. 3D CIR.); FOWLER V. UNITED STATES, 234 F.2D
697, 699 (C.A. 5TH CIR.). 

THE VARIATIONS AMONG THE COURTS OF APPEALS CONCERNED THE
REASONABLENESS OF INFERRING GUILT OF THE SUBSTANTIVE OFFENSE FROM THE
FACT OF UNEXPLAINED PRESENCE AT THE SITE OF THE CRIMINAL ENTERPRISE. 
IT IS THAT QUESTION WHICH CONGRESS HAS NOW RESOLVED IN FAVOR OF THE
ESTABLISHED PRACTICE OF TRIAL JUDGES TO INCLUDE THE INFERENCE IN THEIR
CHARGES.  (FN5)  AND IT IS THE SAME QUESTION OF REASONABLENESS WHICH
THE PETITIONER ASKS THIS COURT TO DETERMINE IN PASSING ON THE
CONSTITUTIONALITY OF SEC. 5601(B)(2). 

AS THE COURT OF APPEALS CORRECTLY STATED IN THIS CASE, THE
CONSTITUTIONALITY OF THE LEGISLATION DEPENDS UPON THE RATIONALITY OF
THE CONNECTION "BETWEEN THE FACTS PROVED AND THE ULTIMATE FACT
PRESUMED."  TOT V. UNITED STATES, 319 U.S. 463, 466.  THE PROCESS OF
MAKING THE DETERMINATION OF RATIONALITY IS, BY ITS NATURE, HIGHLY
EMPIRICAL, AND IN MATTERS NOT WITHIN SPECIALIZED JUDICIAL COMPETENCE OR
COMPLETELY COMMONPLACE, SIGNIFICANT WEIGHT SHOULD BE ACCORDED THE
CAPACITY OF CONGRESS TO AMASS THE STUFF OF ACTUAL EXPERIENCE AND CULL
CONCLUSIONS FROM IT.  AS THE RECORD IN THE CIRCUITS SHOWS, COURTS HAVE
DIFFERED IN ASSESSING THE WEIGHT TO BE PLACED UPON THE FACT OF THE
DEFENDANT'S UNEXPLAINED PRESENCE AT A STILL.  SEE UNITED STATES V.
FREEMAN, 286 F.2D 262 (C.A. 4TH CIR.).  YET IT IS PRECISELY WHEN COURTS
HAVE BEEN UNABLE TO AGREE AS TO THE EXACT RELEVANCE OF A FREQUENTLY
OCCURRING FACT IN AN ATMOSPHERE PREGNANT WITH ILLEGALITY THAT CONGRESS'
RESOLUTION IS APPROPRIATE. 

THE RATIONALITY OF THE INFERENCE PROVIDED BY SEC. 5601(B)(2) MUST BE
VIEWED IN THE CONTEXT OF THE BROAD SUBSTANTIVE OFFENSE IT SUPPORTS. 
DISTILLATION - AN OFFENSE WHICH IS ONE OF THE MOST COMPREHENSIVE OF THE
CRIMINAL STATUTES DESIGNED TO STOP THE PRODUCTION AND SALE OF UNTAXED
LIQUOR.  SEE VUKICH V. UNITED STATES, 28 F.2D 666, 669 (C.A. 9TH CIR.).
THOSE WHO AID AND ABET THE ENTERPRISER COME WITHIN THE STATUTE'S REACH
BY VIRTUE OF 18 U.S.C.  SEC. 2 (1958 ED.).  UNITED STATES V. GIULIANO,
263 F.2D 582 (C.A. 3D CIR.). SUPPLIERS, HAULERS, AND A HOST OF OTHER
FUNCTIONARIES HAVE BEEN CONVICTED UNDER THE STATUTE.  SEE UNITED STATES
V. PRITCHARD, 55 F. SUPP. 201 (D.C.W.D.S.C.), AFF'D, 145 F.2D 240 (C.A.
4TH CIR.). CONGRESS WAS UNDOUBTEDLY AWARE THAT MANUFACTURERS OF
ILLEGAL LIQUOR ARE NOTORIOUS FOR THE DEFTNESS WITH WHICH THEY LOCATE
ARCANE SPOTS FOR PLYING THEIR TRADE.  LEGISLATIVE RECOGNITION OF THE
IMPLICATIONS OF SECLUSION ONLY CONFIRMS WHAT THE FOLKLORE TEACHES -
THAT STRANGERS TO THE ILLEGAL BUSINESS RARELY PENETRATE THE CURTAIN OF
SECRECY.  (FN6)  WE THEREFORE HOLD THAT SEC. 5601(B)(2) SATISFIES THE
TEST OF TOT V. UNITED STATES, SUPRA. 

BUT IT IS SAID THAT THIS STATUTE IS UNCONSTITUTIONAL UPON A DIFFERENT
GROUND - THAT IT IMPINGES UPON THE TRIAL JUDGE'S POWERS OVER THE
JUDICIAL PROCEEDING.  WE CANNOT AGREE.  OUR CONSTITUTION PLACES IN THE
HANDS OF THE TRIAL JUDGE THE RESPONSIBILITY FOR SAFEGUARDING THE
INTEGRITY OF THE JURY TRIAL, INCLUDING THE RIGHT TO HAVE A CASE
WITHHELD FROM THE JURY WHEN THE EVIDENCE IS INSUFFICIENT AS A MATTER OF
LAW TO SUPPORT A CONVICTION.  THE STATUTE BEFORE US DEPRIVES THE TRIAL
JUDGE OF NONE OF HIS NORMAL JUDICIAL POWERS.  WE DO NOT INTERPRET THE
PROVISION IN THE STATUTE THAT UNEXPLAINED "PRESENCE  ...  SHALL BE
DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION" AS IN ANY WAY
INVADING THE PROVINCE OF THE JUDGE'S DISCRETION.  THE LANGUAGE PERMITS
THE JUDGE TO SUBMIT A CASE TO THE JURY ON THE BASIS OF THE ACCUSED'S
PRESENCE ALONE, AND TO THIS EXTENT IT CONSTITUTES CONGRESSIONAL
RECOGNITION THAT THE FACT OF PRESENCE DOES HAVE PROBATIVE WORTH IN THE
DETERMINATION OF GUILT.  BUT WHERE THE ONLY EVIDENCE IS OF PRESENCE THE
STATUTE DOES NOT REQUIRE THE JUDGE TO SUBMIT THE CASE TO THE JURY, NOR
DOES IT PRECLUDE THE GRANT OF A JUDGMENT NOTWITHSTANDING THE VERDICT. 
AND THE COURT OF APPEALS MAY STILL REVIEW THE TRIAL JUDGE'S DENIAL OF
MOTIONS FOR A DIRECTED VERDICT OR FOR A JUDGMENT N.O.V. 

THE STATUTE DOES NOT PREVENT THE JURY FROM BEING "PROPERLY INSTRUCTED
ON THE STANDARDS FOR REASONABLE DOUBT."  HOLLAND V. UNITED STATES, 348
U.S. 121, 139.  IN THIS CASE, THE TRIAL JUDGE INSTRUCTED THE JURY AS
FOLLOWS: 

"THERE IS ONE OTHER MATTER WHICH I SHOULD MENTION.  I CHARGE YOU THAT
THE PRESENCE OF DEFENDANTS AT A STILL, IF PROVED, WITH OR WITHOUT
FLIGHT THEREFROM, OR ATTEMPTED FLIGHT THEREFROM, IF PROVED, WOULD BE A
CIRCUMSTANCE FOR YOU TO CONSIDER ALONG WITH ALL THE OTHER TESTIMONY IN
THE CASE.  OF COURSE, THE BARE PRESENCE AT A DISTILLERY AND FLIGHT
THEREFROM OF AN INNOCENT MAN IS NOT IN AND OF ITSELF ENOUGH TO MAKE HIM
GUILTY.  IT IS POSSIBLE UNDER THE LAW FOR AN INNOCENT MAN TO BE PRESENT
AT A DISTILLERY, AND IT IS POSSIBLE FOR HIM TO RUN WHEN ABOUT TO BE
APPREHENDED, AND SUCH AN INNOCENT MAN OUGHT NEVER TO BE CONVICTED, BUT
PRESENCE AT A DISTILLERY, IF YOU THINK THESE MEN WERE PRESENT, IS A
CIRCUMSTANCE TO BE CONSIDERED ALONG WITH ALL THE OTHER CIRCUMSTANCES IN
THE CASE IN DETERMINING WHETHER THEY WERE CONNECTED WITH THE DISTILLERY
OR NOT.  DID THEY HAVE ANY EQUIPMENT WITH THEM THAT WAS NECESSARY AT
THE DISTILLERY?  WHAT WAS THE HOUR OF DAY THAT THEY WERE THERE?  DID
THE OFFICERS SEE THEM DO ANYTHING?  DID THEY MAKE ANY STATEMENTS? 

"IT IS YOUR DUTY TO EXPLORE THIS CASE, ANALYZE THE EVIDENCE PRO AND
CON FAIRLY.  PRESENCE AT A STILL, TOGETHER WITH OTHER CIRCUMSTANCES IN
THE CASE, IF THEY ARE SUFFICIENT IN YOUR OPINION TO EXCLUDE EVERY
REASONABLE CONCLUSION EXCEPT THAT THEY WERE THERE CONNECTED WITH THE
DISTILLERY, IN AN ILLEGAL MANNER,  ...  CARRYING ON THE BUSINESS AS
CHARGED  ...  , IF YOU BELIEVE THOSE THINGS, WOULD AUTHORIZE YOU IN
FINDING THE DEFENDANTS GUILTY. 

"AND UNDER A STATUTE ENACTED BY CONGRESS A FEW YEARS BACK, WHEN A
PERSON IS ON TRIAL FOR  ... CARRYING ON THE BUSINESS OF A DISTILLER
WITHOUT GIVING BOND AS REQUIRED BY LAW, AS CHARGED IN THIS CASE, AND
THE DEFENDANT IS SHOWN TO HAVE BEEN AT THE SITE OF THE PLACE  ...
WHERE AND AT THE TIME WHEN THE BUSINESS OF A DISTILLER WAS ENGAGED IN
OR CARRIED ON WITHOUT BOND HAVING BEEN GIVEN, UNDER THE LAW SUCH
PRESENCE OF THE DEFENDANT SHALL BE DEEMED SUFFICIENT EVIDENCE TO
AUTHORIZE CONVICTION, UNLESS THE DEFENDANT BY THE EVIDENCE IN THE CASE
AND BY PROVEN FACTS AND CIRCUMSTANCES EXPLAINS SUCH PRESENCE TO THE
SATISFACTION OF THE JURY. 

"NOW THIS DOES NOT MEAN THAT THE PRESENCE OF THE DEFENDANT AT THE
SITE AND PLACE AT THE TIME REFERRED TO REQUIRES THE JURY TO CONVICT THE
DEFENDANT, IF THE DEFENDANT BY THE EVIDENCE IN THE CASE, FACTS AND
CIRCUMSTANCES PROVED, FAILS TO EXPLAIN HIS PRESENCE TO THE SATISFACTION
OF THE JURY.   IT SIMPLY MEANS THAT A JURY MAY, IF IT SEES FIT, CONVICT
UPON SUCH EVIDENCE, AS IT SHALL BE DEEMED IN LAW SUFFICIENT TO
AUTHORIZE A CONVICTION, BUT DOES NOT REQUIRE SUCH A RESULT." 

THE JURY WAS THUS SPECIFICALLY TOLD THAT THE STATUTORY INFERENCE WAS
NOT CONCLUSIVE.  "PRESENCE" WAS ONE CIRCUMSTANCE TO BE CONSIDERED AMONG
MANY.  EVEN IF IT FOUND THAT THE DEFENDANT HAD BEEN PRESENT AT THE
STILL, AND THAT HIS PRESENCE REMAINED UNEXPLAINED, THE JURY COULD
NONETHELESS ACQUIT HIM IF IT FOUND THAT THE GOVERNMENT HAD NOT PROVED
HIS GUILT BEYOND A REASONABLE DOUBT.  HOLLAND V. UNITED STATES, SUPRA.
IN THE ABSENCE OF THE STATUTE, SUCH AN INSTRUCTION TO THE JURY WOULD
SURELY HAVE BEEN PERMISSIBLE.  CF. WILSON V. UNITED STATES, SUPRA.
FURTHERMORE, IN THE CONTEXT OF THE INSTRUCTIONS AS A WHOLE, WE DO NOT
CONSIDER THAT THE SINGLE PHRASE "UNLESS THE DEFENDANT BY THE EVIDENCE
IN THE CASE AND BY PROVEN FACTS AND CIRCUMSTANCES EXPLAINS SUCH
PRESENCE TO THE SATISFACTION OF THE JURY" CAN BE FAIRLY UNDERSTOOD AS A
COMMENT ON THE PETITIONER'S FAILURE TO TESTIFY.  (FN7)  CF. BRUNO V.
UNITED STATES, 308 U.S. 287.  THE JUDGE'S OVERALL REFERENCE WAS
CAREFULLY DIRECTED TO THE EVIDENCE AS A WHOLE, WITH NEITHER ALLUSION
NOR INNUENDO BASED ON THE DEFENDANT'S DECISION NOT TO TAKE THE STAND. 

IN MCNAMARA V. HENKEL, 226 U.S. 520, 525, THE COURT APPROVED A
PROCEEDING WHICH DID NO MORE THAN "ACCORD TO THE EVIDENCE, IF
UNEXPLAINED, ITS NATURAL PROBATIVE FORCE."  THAT IS ALL THAT CONGRESS
HAS DONE HERE.  WE CANNOT FIND THAT THE LAW IT ENACTED VIOLATES THE
CONSTITUTION.  REVERSED. 

FN1  THE EVIDENCE FOR THE PROSECUTION SHOWED THAT AN OLD DODGE TRUCK
WITH DARKENED HEADLIGHTS DROVE UP TO  THE SITE OF A SECLUDED STILL,
HIDDEN IN A SWAMP IN DOOLY COUNTY, GEORGIA.  THE RESPONDENT, JACKIE
GAINEY, LEFT THE TRUCK, TURNED ON A FLASHLIGHT, AND WALKED TOWARD THE
STILL.  THERE HE WAS CONFRONTED BY STATE AND FEDERAL REVENUE AGENTS. 
THE RESPONDENT ATTEMPTED TO FLEE, BUT AFTER A SHORT CHASE, HE AND HIS
WAITING COLLEAGUES WERE APPREHENDED.  SINCE THE TRIAL, ONE OF GAINEY'S
CO-DEFENDANTS, ROY LEE BARRETT, HAS DIED; THE OTHER, CLEVELAND JOHNS,
ELECTED TO SERVE AND HAS COMPLETED HIS SENTENCE. 

FN2  SECTION 5601(B)(1) PROVIDES: 

"(1)  UNREGISTERED STILLS. 

"WHENEVER ON TRIAL FOR VIOLATION OF SUBSECTION (A)(1) THE DEFENDANT
IS SHOWN TO HAVE BEEN AT THE SITE OR PLACE WHERE, AND AT THE TIME WHEN,
A STILL OR DISTILLING APPARATUS WAS SET UP WITHOUT HAVING BEEN
REGISTERED, SUCH PRESENCE OF THE DEFENDANT SHALL BE DEEMED SUFFICIENT
EVIDENCE TO AUTHORIZE CONVICTION, UNLESS THE DEFENDANT EXPLAINS SUCH
PRESENCE TO THE SATISFACTION OF THE JURY (OR OF THE COURT WHEN TRIED
WITHOUT JURY)." 


"(2) FAILURE OR REFUSAL OF DISTILLER OR RECTIFIER TO GIVE BOND. 

"WHENEVER ON TRIAL FOR VIOLATION OF SUBSECTION (A)(4) THE DEFENDANT IS
SHOWN TO HAVE BEEN AT THE SITE OR PLACE WHERE, AND AT THE TIME WHEN,
THE BUSINESS OF A DISTILLER OR RECTIFIER WAS SO ENGAGED IN OR CARRIED
ON, SUCH PRESENCE OF THE DEFENDANT SHALL BE DEEMED SUFFICIENT EVIDENCE
TO AUTHORIZE CONVICTION, UNLESS THE DEFENDANT EXPLAINS SUCH PRESENCE TO
THE SATISFACTION OF THE JURY (OR OF THE COURT WHEN TRIED WITHOUT
JURY)." 

THESE SECTIONS WERE INTRODUCED INTO THE CODE IN 1958.  THE STATUTORY
INFERENCES ARE MODELED AFTER 18 U.S.C. SEC. 545 (1958 ED.), ORIGINALLY
SEC. 4 OF THE SMUGGLING ACT OF 1866, 14 STAT. 178, 179.  SIMILAR
WORDING APPEARS IN 21 U.S.C. SEC. 174 (1958 ED.), THE NARCOTIC DRUGS
IMPORT AND EXPORT ACT OF 1909, 35 STAT. 614, THE CONSTITUTIONALITY OF
WHICH WAS SUSTAINED IN YEE HEM V. UNITED STATES, 268 U.S. 178.    FN3
A THIRD COUNT CHARGED A VIOLATION OF SEC. 5602, WHICH PROHIBITS
CARRYING ON THE BUSINESS OF A DISTILLER WITH INTENT TO DEFRAUD THE
UNITED STATES.  THE COURT OF APPEALS REVERSED THE CONVICTION ON THIS
COUNT ALSO, AND THE GOVERNMENT DID NOT SEEK REVIEW OF THIS REVERSAL.  A
FOURTH COUNT, CHARGING THAT THE DEFENDANTS, IN VIOLATION OF 26 U.S.C.
SEC. 5180 (1958 ED.), WORKED IN A DISTILLERY ON WHICH NO SIGN WAS
PLACED SHOWING THE NAME OF THE PERSON ENGAGED IN THE DISTILLING,
RESULTED IN A DIRECTED VERDICT OF ACQUITTAL. 

FN4  HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON WAYS
AND MEANS ON EXCISE TAX TECHNICAL AND ADMINISTRATIVE PROBLEMS, PART 3,
P. 95, 84TH CONG., 2D SESS. 

FN5  BOZZA V. UNITED STATES, 330 U.S. 160, CONTRIBUTED TO
CONGRESSIONAL CONCERN.  SEE HEARINGS, NOTE 4, SUPRA.  BUT THAT CASE DID
NOT DEAL WITH THE PROBLEM OF PRESENCE ALONE AS INSUFFICIENT EVIDENCE
WHERE THE SUBSTANTIVE OFFENSE IS "CARRYING ON" THE ENTERPRISE OF
ILLEGAL DISTILLATION.  BOZZA'S CONVICTION FOR "CARRYING ON" THE
ENTERPRISE OF ILLEGAL DISTILLATION WAS AFFIRMED BY THIS COURT. 

FN6  "VERY FEW OF THE ILLICIT DISTILLERS ALLOW ANY ONE, EXCEPT THEIR
MOST INTIMATE FRIENDS, TO APPROACH THEIR DISTILLERIES.  SUCH PLACES, AS
A RULE, ARE FORBIDDEN GROUND, FOR THE REASON THAT WHEN THE VIOLATORS
ARE ARRESTED IT IS A DIFFICULT MATTER TO PROVE THEM GUILTY, WHEN SO FEW
PERSONS HAVE EVER SEEN THEM OPERATING THEIR DISTILLERIES."  ATKINSON,
AFTER THE MOONSHINERS, BY ONE OF THE RAIDERS, AT P. 23. 

"THE FIRST REQUISITE FOR AN ILLICIT STILL IS A GOOD STREAM OF COOL
WATER  ...  . 

"THE NEXT REQUISITE IS SECLUSION.  IT MUST BE PLACED WHERE NO ONE
EVER TRAVELS, OR EVEN THINKS OF TRAVELING."  ID., AT P. 18. 

FN7  INDEED THE BETTER PRACTICE WOULD BE TO INSTRUCT THE JURORS THAT
THEY MAY DRAW THE INFERENCE UNLESS THE EVIDENCE IN THE CASE PROVIDES A
SATISFACTORY EXPLANATION FOR THE DEFENDANT'S PRESENCE AT THE STILL,
OMITTING ANY EXPLICIT REFERENCE TO THE STATUTE ITSELF IN THE CHARGE. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

THE STATUTE WHICH THE COURT FINDS CONSTITUTIONAL PROVIDES: 

"WHENEVER ON TRIAL FOR VIOLATION OF SUBSECTION (A)(4) (MAKING IT AN
OFFENSE TO CARRY ON THE BUSINESS OF A DISTILLER OR RECTIFIER WITHOUT
HAVING GIVEN BOND AS REQUIRED BY LAW) THE DEFENDANT IS SHOWN TO HAVE
BEEN AT THE SITE OR PLACE WHERE, AND AT THE TIME WHEN, THE BUSINESS OF
A DISTILLER OR RECTIFIER WAS SO ENGAGED IN OR CARRIED ON, SUCH PRESENCE
OF THE DEFENDANT SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE
CONVICTION, UNLESS THE DEFENDANT EXPLAINS SUCH PRESENCE TO THE
SATISFACTION OF THE JURY (OR OF THE COURT WHEN TRIED WITHOUT JURY)." 
26 U.S.C. SEC. 5601(B)(2). 

IT WOULD BE POSSIBLE TO INTERPRET THE STATUTE AS COMPELLING JUDGES TO
GIVE THE FOLLOWING INSTRUCTION TO JURIES:  "IF YOU FIND THAT THE
DEFENDANT WAS PRESENT AT THE STILL, THEN THE LAW REQUIRES YOU TO ASSUME
THAT HE WAS THERE CARRYING ON THE BUSINESS OF A DISTILLER WITHIN THE
MEANING OF THE STATUTE; BUT YOU NEED NOT MAKE THIS ASSUMPTION IF THE
DEFENDANT HAS GIVEN ANOTHER EXPLANATION OF HIS PRESENCE THERE AND YOU
ARE SATISFIED OF THE TRUTH OF THAT EXPLANATION."  IF THE STATUTE WERE
READ AS COMPELLING SUCH AN INSTRUCTION, I WOULD FIND IT
CONSTITUTIONALLY INTOLERABLE, FOR THE REASONS SO WELL STATED BY MY
BROTHER BLACK. 

THE COURT, HOWEVER, INTERPRETS THE STATUTE AS MERELY ALLOWING, NOT
COMPELLING, THE JURY TO DRAW THE INFERENCE OF "CARRYING ON" FROM THE
FACT OF "PRESENCE."   THE JURY IS LEFT FREE TO REJECT THE INFERENCE IF,
IN LIGHT OF ALL THE CIRCUMSTANCES OF THE CASE, A REASONABLE DOUBT
REMAINS AS TO THE DEFENDANT'S GUILT.  THAT IS THE WAY THE JURY WOULD
NORMALLY FUNCTION, APART FROM THE STATUTE.  SO, I HAVE CONCLUDED THAT
THE STATUTE, AS CONSTRUED, MERELY PROVIDES A RULE OF EVIDENCE AND NO
MORE. 

THERE ARE, TO BE SURE, DANGERS INHERENT IN ANY STATUTORY
PRESUMPTION.  PERHAPS THE JURY WILL BE OVERAWED IF IT IS TOLD THAT SOME
PARTICULAR FACTUAL INFERENCE HAS BEEN ENSHRINED IN AN ACT OF CONGRESS. 
THEREFORE THE COURT QUITE RIGHTLY SUGGESTS THAT THE BETTER PRACTICE
WOULD BE TO OMIT "ANY EXPLICIT REFERENCE TO THE STATUTE ITSELF IN THE
CHARGE."  ANTE, P. 71, N. 7.  OR PERHAPS THE JUDGE MAY FEEL THAT THE
STATUTE RESTRICTS HIS POWER TO WITHHOLD AN INSUFFICIENT CASE FROM THE
JURY OR TO GRANT A JUDGMENT NOTWITHSTANDING THE VERDICT.  THE COURT
REASSURES THE TRIAL JUDGE THAT THE STATUTE DOES NOT THUS INVADE THE
PROVINCE OF HIS DISCRETION.  NOR IS THE FUNCTION OF THE APPELLATE
COURTS IN ANY WAY CIRCUMSCRIBED. 

IN MY VIEW, THE ACUTE DANGER IN THE STATUTE AS CONSTRUED AND APPLIED
LURKS IN ITS PROVISION THAT THE JURY MAY DRAW THE INFERENCE IN QUESTION
"UNLESS THE DEFENDANT EXPLAINS SUCH PRESENCE TO THE SATISFACTION OF THE
JURY  ...  ."  IF THIS MEANT THAT THE JUDGE SHOULD INSTRUCT THAT THE
INFERENCE MAY BE DRAWN UNLESS THE DEFENDANT HIMSELF BECOMES A WITNESS
AND PERSONALLY EXPLAINS HIS PRESENCE AT THE STILL, THEN, AS MY BROTHER
BLACK SAYS, THE STATUTE WOULD CLEARLY SUBJECT THE DEFENDANT TO AN
IMPERMISSIBLE COMPULSION TO TESTIFY.  BUT MORE SUBTLY COMPELLING
INSTRUCTIONS THAN THAT ARE OUTLAWED BY THE SAME POLICY.  IT HAS LONG
BEEN THE RULE IN THE FEDERAL COURTS THAT THE DEFENDANT'S FAILURE TO
TESTIFY OUGHT NOT TO BE EVEN THE SUBJECT OF UNFAVORABLE COMMENT: 

"IT IS NOT EVERY ONE WHO CAN SAFELY VENTURE ON THE WITNESS STAND
THOUGH ENTIRELY INNOCENT OF THE CHARGE AGAINST HIM.  EXCESSIVE
TIMIDITY, NERVOUSNESS WHEN FACING OTHERS AND ATTEMPTING TO EXPLAIN
TRANSACTIONS OF A SUSPICIOUS CHARACTER, AND OFFENCES CHARGED AGAINST
HIM, WILL OFTEN CONFUSE AND EMBARRASS HIM TO SUCH A DEGREE AS TO
INCREASE RATHER THAN REMOVE PREJUDICES AGAINST HIM  ...  . COUNSEL IS
FORBIDDEN BY THE STATUTE (NOW 18 U.S.C. SEC. 3481)* TO MAKE ANY COMMENT
WHICH WOULD CREATE OR TEND TO CREATE A PRESUMPTION AGAINST THE
DEFENDANT FROM HIS FAILURE TO TESTIFY."  WILSON V. UNITED STATES, 149
U.S. 60, 66-67. 

*"IN TRIAL OF ALL PERSONS CHARGED WITH THE COMMISSION OF OFFENSES
AGAINST THE UNITED STATES AND IN ALL PROCEEDINGS IN COURTS MARTIAL AND
COURT OF INQUIRY IN ANY STATE, DISTRICT, POSSESSION OR TERRITORY, THE
PERSON CHARGED SHALL, AT HIS OWN REQUEST, BE A COMPETENT WITNESS.  HIS
FAILURE TO MAKE SUCH REQUEST SHALL NOT CREATE ANY PRESUMPTION AGAINST
HIM." 

JUST AS IT IS IMPROPER FOR COUNSEL TO ARGUE FROM THE DEFENDANT'S
SILENCE, SO IT IS IMPROPER FOR THE TRIAL JUDGE TO CALL ATTENTION TO THE
FACT OF DEFENDANT'S SILENCE.  INDEED, UNDER 18 U.S.C. SEC. 3481 THE
DEFENDANT IS ENTITLED AS A MATTER OF RIGHT TO HAVE THE TRIAL JUDGE
EXPRESSLY TELL THE JURY THAT IT MUST NOT ATTACH ANY IMPORTANCE TO THE
DEFENDANT'S FAILURE TO TESTIFY; OR, IF THE DEFENDANT SEES FIT, HE MAY
CHOOSE TO HAVE NO MENTION MADE OF HIS SILENCE BY ANYONE.  BRUNO V.
UNITED STATES, 308 U.S. 287. 

I HAVE PREVIOUSLY EXPRESSED MY VIEW THAT THIS RULE AGAINST COMMENT ON
THE DEFENDANT'S SILENCE IS MANDATED BY THE FIFTH AMENDMENT, BECAUSE
"USING A DEFENDANT'S SILENCE AS EVIDENCE AGAINST HIM IS ONE WAY OF
HAVING HIM TESTIFY AGAINST HIMSELF."  SCOTT V. CALIFORNIA, 364 U.S.
471, 472 (DISSENTING OPINION). 

THE CHARGE IN THE PRESENT CASE DOES NOT, IN MY VIEW, SATISFY THE
REQUIREMENTS OF THE FIFTH AMENDMENT.  THE JUDGE TOLD THE JURY THAT THE
INFERENCE COULD BE DRAWN "UNLESS THE DEFENDANT BY THE EVIDENCE IN THE
CASE AND BY PROVEN FACTS AND CIRCUMSTANCES EXPLAINS SUCH PRESENCE TO
THE SATISFACTION OF THE JURY."  I BELIEVE THE CHARGE IN THAT FORM RUNS
COUNTER TO THE FEDERAL POLICY THAT FORBIDS CONVICTION ON COMPELLED
TESTIMONY, NOT ONLY BECAUSE, AS MY BROTHER BLACK POINTS OUT, IT PUTS
DIRECT PRESSURE ON THE DEFENDANT TO COME FORWARD AND TESTIFY, BUT ALSO
BECAUSE IT AMOUNTS IN PRACTICAL EFFECT TO AN IMPROPER COMMENT ON THE
DEFENDANT'S SILENCE WHERE, AS HERE, HE RESISTS THE PRESSURE AND DOES
NOT TAKE THE STAND IN HIS OWN BEHALF.  UNLIKE THE COURT, THEREFORE, I
WOULD NOT INTERPRET THE STATUTE BEFORE US AS ATTEMPTING A PRO TANTO
REPEAL OF 18 U.S.C. SEC. 3481 BY AUTHORIZING SUCH AN INSTRUCTION. 

MR. JUSTICE BLACK, DISSENTING. 

RESPONDENT GAINEY WAS TRIED AND CONVICTED OF POSSESSION OF AN
UNREGISTERED STILL (FN1) AND OF CARRYING ON THE BUSINESS OF A DISTILLER
WITHOUT HAVING GIVEN BOND (FN2) IN VIOLATION OF A FEDERAL STATUTE. 
OTHER PROVISIONS OF THE STATUTE, (FN3) ENTITLED "PRESUMPTIONS," DECLARE
THAT PRESENCE AT THE SITE OF SUCH A DISTILLERY "SHALL BE DEEMED
SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION, UNLESS THE DEFENDANT
EXPLAINS SUCH PRESENCE TO THE SATISFACTION OF THE JURY  ...  ."  AT THE
TRIAL FEDERAL AND STATE OFFICERS TESTIFIED, AMONG OTHER THINGS, THAT
THEY HAD SEEN GAINEY AT A STILL SITE.  GAINEY DID NOT TESTIFY.  THE
TRIAL COURT, QUITE APPROPRIATELY IF THE FOREGOING PROVISIONS ARE VALID,
INSTRUCTED THE JURY THAT GAINEY'S UNEXPLAINED PRESENCE AT THE STILL WAS
"DEEMED IN LAW SUFFICIENT" TO CONVICT.  I THINK THAT THE STATUTORY
PROVISIONS WHICH AUTHORIZE SUCH A CHARGE DEPRIVED GAINEY (1) OF HIS
CONSTITUTIONAL RIGHT TO TRIAL BY JURY, GUARANTEED HIM BOTH IN ART. III,
SEC. 2, AND IN THE SIXTH AMENDMENT; (2) OF DUE PROCESS OF LAW
GUARANTEED BY THE FIFTH AMENDMENT, WHICH INCLUDES THE RIGHT TO BE TRIED
FOR A CRIME IN A COURT ACCORDING TO THE LAW OF THE LAND, WITHOUT ANY
INTERFERENCE WITH THAT COURT'S JUDICIAL FUNCTIONS BY THE CONGRESS; AND
(3) OF HIS RIGHT GUARANTEED BY THE FIFTH AMENDMENT NOT TO BE COMPELLED
TO BE A WITNESS AGAINST HIMSELF. 

FIRST OF ALL, LET ME SAY THAT I AM AT A LOSS TO UNDERSTAND THE
COURT'S PUZZLING STATEMENT THAT "WHERE THE ONLY EVIDENCE IS OF PRESENCE
THE STATUTE DOES NOT REQUIRE THE JUDGE TO SUBMIT THE CASE TO THE JURY,
NOR DOES IT PRECLUDE THE GRANT OF A JUDGMENT NOTWITHSTANDING THE
VERDICT."  THE PROVISIONS IN QUESTION BOTH SAY UNQUALIFIEDLY THAT
"PRESENCE OF THE DEFENDANT SHALL BE DEEMED SUFFICIENT EVIDENCE TO
AUTHORIZE CONVICTION" UNLESS THE DEFENDANT EXPLAINS HIS PRESENCE.  THE
COURT HOLDS THAT THIS STATUTORY COMMAND IN SEC. 5601(B)(2) IS VALID,
(FN4) BUT THEN FOR SOME REASON ADDS THAT JUDGES ARE FREE TO IGNORE IT
OR, AFTER TELLING JURIES THAT THEY MAY RELY ON IT, ARE FREE TO SET
ASIDE THE VERDICTS OF THOSE JURIES WHICH DO.  IN OTHER WORDS, UNDER THE
COURT'S HOLDING THE JUDGE IS LEFT FREE TO TAKE THE EXTRAORDINARY COURSE
OF FOLLOWING A VALID STATUTE OR NOT, AS HE CHOOSES.  JUDGES ARE NOT
USUALLY GIVEN SUCH UNLIMITED DISCRETION TO DISREGARD VALID STATUTES. 
AND AS THE COURT INDICATES ELSEWHERE IN ITS OPINION, IT WAS TO PREVENT
JUDGES FROM SETTING ASIDE JURY VERDICTS BASED ON PRESENCE ALONE THAT
CONGRESS PASSED THIS STATUTE IN THE FIRST PLACE.  BESIDES BEING ALMOST
SELF-CONTRADICTORY, IT AMOUNTS TO AN EMASCULATION OF THESE STATUTORY
PROVISIONS, I THINK, TO SAY THAT THE JUDGE WAS NOT REQUIRED TO TELL THE
JURY ABOUT THEM.  BUT WHETHER OR NOT HE WAS BOUND TO DO SO, THE FACT IS
THAT HERE HE DID, AND SO THIS JURY DELIBERATED WITH THE JUDGE'S SOLEMN
INSTRUCTION THAT CONGRESS HAD DECIDED THAT PROOF OF MERE UNEXPLAINED
PRESENCE AT A STILL WAS SUFFICIENT TO CONVICT GAINEY OF HAVING
ILLEGALLY POSSESSED IT OR CARRIED ON ITS BUSINESS.  FEW JURORS COULD
HAVE FAILED TO BELIEVE THAT IT WAS THEIR DUTY TO CONVICT UNDER THIS
CHARGE IF PRESENCE WAS PROVED, AND FEW JUDGES COULD HAVE FAILED TO
BELIEVE IT WAS THEIR DUTY TO UPHOLD SUCH A CONVICTION, EVEN THOUGH ALL
OF THEM IN A PARTICULAR CASE MIGHT HAVE FELT THAT MERE PRESENCE ALONE
WAS NOT ENOUGH TO SHOW GUILT. 

IT HAS ALWAYS BEEN RECOGNIZED THAT THE GUARANTY OF TRIAL BY JURY IN
CRIMINAL CASES MEANS THAT THE JURY IS TO BE THE FACTFINDER.  THIS IS
THE ONLY WAY IN WHICH A JURY CAN PERFORM ITS BASIC CONSTITUTIONAL
FUNCTION OF DETERMINING THE GUILT OR INNOCENCE OF A DEFENDANT.  SEE,
E.G., UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S. 11, 15-19; REID
V. COVERT, 354 U.S. 1, 5-10 (OPINION ANNOUNCING JUDGMENT).  AND OF
COURSE THIS CONSTITUTIONALLY ESTABLISHED POWER OF A JURY TO DETERMINE
GUILT OR INNOCENCE OF A DEFENDANT CHARGED WITH CRIME CANNOT BE TAKEN
AWAY BY CONGRESS, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART. 
OBVIOUSLY, A NECESSARY PART OF THIS POWER, VESTED BY THE CONSTITUTION
IN JURIES (OR IN JUDGES WHEN JURIES ARE WAIVED), IS THE EXCLUSIVE RIGHT
TO DECIDE WHETHER EVIDENCE PRESENTED AT TRIAL IS SUFFICIENT TO
CONVICT.  I THINK IT FLAUNTS THE CONSTITUTIONAL POWER OF COURTS AND
JURIES FOR CONGRESS TO TELL THEM WHAT "SHALL  BE DEEMED SUFFICIENT
EVIDENCE TO AUTHORIZE CONVICTION."  AND IF CONGRESS COULD NOT THUS
DIRECTLY ENCROACH UPON THE JUDGE'S OR JURY'S EXCLUSIVE RIGHT TO DECLARE
WHAT EVIDENCE IS SUFFICIENT TO PROVE THE FACTS NECESSARY FOR
CONVICTION, IT SHOULD NOT BE ALLOWED TO DO SO MERELY BY LABELING ITS
ENCROACHMENT A "PRESUMPTION."  NEITHER TOT V. UNITED STATES, 319 U.S.
463, RELIED ON BY THE COURT AS SUPPORTING THIS PRESUMPTION, NOR ANY
CASE CITED IN TOT APPROVED SUCH ENCROACHMENT ON THE POWER OF JUDGES OR
JURIES.  IN FACT, SO FAR AS I CAN TELL, THE PROBLEM OF WHETHER CONGRESS
CAN SO RESTRICT THE POWER OF COURT AND JURY IN A CRIMINAL CASE IN A
FEDERAL COURT HAS NEVER BEEN SQUARELY PRESENTED TO OR CONSIDERED BY
THIS COURT, PERHAPS BECAUSE CHALLENGES TO PRESUMPTIONS HAVE ARISEN IN
MANY CRUCIALLY DIFFERENT CONTEXTS BUT NEVERTHELESS HAVE GENERALLY
FAILED TO DISTINGUISH BETWEEN PRESUMPTIONS USED IN DIFFERENT WAYS,
TREATING THEM AS IF THEY ARE EITHER ALL VALID OR ALL INVALID,
REGARDLESS OF THE RIGHTS ON WHICH THEIR USE MAY IMPINGE.  BECAUSE THE
COURT ALSO FAILS TO DIFFERENTIATE AMONG THE DIFFERENT CIRCUMSTANCES IN
WHICH PRESUMPTIONS MAY BE UTILIZED AND THE DIFFERENT CONSEQUENCES WHICH
WILL FOLLOW, I FEEL IT NECESSARY TO SAY A FEW WORDS ON THAT SUBJECT
BEFORE CONSIDERING SPECIFICALLY THE VALIDITY OF THE USE OF THESE
PRESUMPTIONS IN THE LIGHT OF THE CIRCUMSTANCES AND CONSEQUENCES OF
THEIR USE.    IN ITS SIMPLEST FORM A PRESUMPTION IS AN INFERENCE
PERMITTED OR REQUIRED BY LAW OF THE EXISTENCE OF ONE FACT, WHICH IS
UNKNOWN OR WHICH CANNOT BE PROVED, FROM ANOTHER FACT WHICH HAS BEEN
PROVED.  THE FACT PRESUMED MAY BE BASED ON A VERY STRONG PROBABILITY, A
WEAK SUPPOSITION OR AN ARBITRARY ASSUMPTION.  THE BURDEN ON THE PARTY
SEEKING TO PROVE THE FACT MAY BE SLIGHT, AS IN A CIVIL SUIT, OR VERY
HEAVY - PROOF BEYOND A REASONABLE DOUBT - AS IN A CRIMINAL
PROSECUTION.  THIS POINTS UP THE FACT THAT STATUTES CREATING
PRESUMPTIONS CANNOT BE TREATED AS FUNGIBLE, THAT IS, AS INTERCHANGEABLE
FOR ALL USES AND ALL PURPOSES.   THE VALIDITY OF EACH PRESUMPTION MUST
BE DETERMINED IN THE LIGHT OF THE PARTICULAR CONSEQUENCES THAT FLOW
FROM ITS USE.  WHEN MATTERS OF TRIFLING MOMENT ARE INVOLVED,
PRESUMPTIONS MAY BE MORE FREELY ACCEPTED, BUT WHEN CONSEQUENCES OF
VITAL IMPORTANCE TO LITIGANTS AND TO THE ADMINISTRATION OF JUSTICE ARE
AT STAKE, A MORE CAREFUL SCRUTINY IS NECESSARY. 

IN JUDGING THE CONSTITUTIONALITY OF LEGISLATIVELY CREATED
PRESUMPTIONS THIS COURT HAS EVOLVED AN INITIAL CRITERION WHICH APPLIES
ALIKE TO ALL KINDS OF PRESUMPTIONS:  THAT BEFORE A PRESUMPTION MAY BE
RELIED ON, THERE MUST BE A RATIONAL CONNECTION BETWEEN THE FACTS
INFERRED AND THE FACTS WHICH HAVE BEEN PROVED BY COMPETENT EVIDENCE,
THAT IS, THE FACTS PROVED MUST BE EVIDENCE WHICH IS RELEVANT, TENDING
TO PROVE (THOUGH NOT NECESSARILY CONCLUSIVELY) THE EXISTENCE OF THE
FACT PRESUMED.   AND COURTS HAVE UNDOUBTEDLY SHOWN AN INCLINATION TO BE
LESS STRICT ABOUT THE LOGICAL STRENGTH OF PRESUMPTIVE INFERENCES THEY
WILL PERMIT IN CIVIL CASES THAN ABOUT THOSE WHICH AFFECT THE TRIAL OF
CRIMES.  THE STRICTER SCRUTINY IN THE LATTER SITUATIONS FOLLOWS FROM
THE FACT THAT THE BURDEN OF PROOF IN A CIVIL LAWSUIT IS ORDINARILY
MERELY A PREPONDERANCE OF THE EVIDENCE, WHILE IN A CRIMINAL CASE WHERE
A MAN'S LIFE, LIBERTY, OR PROPERTY IS AT STAKE, THE PROSECUTION MUST
PROVE HIS GUILT BEYOND A REASONABLE DOUBT.  SEE MORRISON V. CALIFORNIA,
291 U.S. 82, 96-97.  THE CASE OF BAILEY V. ALABAMA, 219 U.S. 219, IS A
GOOD ILLUSTRATION OF THIS PRINCIPLE.  THERE BAILEY WAS ACCUSED OF
VIOLATING AN ALABAMA STATUTE WHICH MADE IT A CRIME TO FAIL TO PERFORM
PERSONAL SERVICES AFTER OBTAINING MONEY BY CONTRACTING TO PERFORM THEM,
WITH AN INTENT TO DEFRAUD THE EMPLOYER.  THE STATUTE ALSO PROVIDED THAT
REFUSAL OR FAILURE TO PERFORM THE SERVICES, OR TO REFUND MONEY PAID FOR
THEM, WITHOUT JUST CAUSE, CONSTITUTED "PRIMA FACIE EVIDENCE" (I.E.,
GAVE RISE TO A PRESUMPTION) OF THE INTENT TO INJURE OR DEFRAUD.  THIS
COURT, AFTER CALLING ATTENTION TO PRIOR CASES DEALING WITH THE
REQUIREMENT OF RATIONALITY, PASSED OVER THE TEST OF RATIONALITY AND
HELD THE STATUTE INVALID ON ANOTHER GROUND.  LOOKING BEYOND THE
RATIONAL-RELATIONSHIP DOCTRINE THE COURT HELD THAT THE USE OF THIS
PRESUMPTION BY ALABAMA AGAINST A MAN ACCUSED OF CRIME WOULD AMOUNT TO A
VIOLATION OF THE THIRTEENTH AMENDMENT TO THE CONSTITUTION, WHICH
FORBIDS "INVOLUNTARY SERVITUDE, EXCEPT AS A PUNISHMENT FOR CRIME."  IN
SO DECIDING THE COURT MADE IT CRYSTAL CLEAR THAT RATIONALITY IS ONLY
THE FIRST HURDLE WHICH A LEGISLATIVELY CREATED PRESUMPTION MUST CLEAR -
THAT A PRESUMPTION, EVEN IF RATIONAL, CANNOT BE USED TO CONVICT A MAN
OF CRIME IF THE EFFECT OF USING THE PRESUMPTION IS TO DEPRIVE THE
ACCUSED OF A CONSTITUTIONAL RIGHT.  IN BAILEY THE CONSTITUTIONAL RIGHT
WAS GIVEN BY THE THIRTEENTH AMENDMENT.  IN THE CASE BEFORE US THE
ACCUSED, IN MY JUDGMENT, HAS BEEN DENIED HIS RIGHT TO THE KIND OF TRIAL
BY JURY GUARANTEED BY ART. III, SEC. 2, AND THE SIXTH AMENDMENT, AS
WELL AS TO DUE PROCESS OF LAW AND FREEDOM FROM SELF-INCRIMINATION
GUARANTEED BY THE FIFTH AMENDMENT.  AND OF COURSE THE PRINCIPLE
ANNOUNCED IN THE BAILEY CASE WAS NOT LIMITED TO RIGHTS GUARANTEED BY
THE THIRTEENTH AMENDMENT.  THE COURT SAID IN BAILEY: 

"IT IS APPARENT THAT A CONSTITUTIONAL PROHIBITION CANNOT BE
TRANSGRESSED INDIRECTLY BY THE CREATION OF A STATUTORY PRESUMPTION ANY
MORE THAN IT CAN BE VIOLATED BY DIRECT ENACTMENT.  THE POWER TO CREATE
PRESUMPTIONS IS NOT A MEANS OF ESCAPE FROM CONSTITUTIONAL
RESTRICTIONS."  219 U.S., AT 239. 

THUS THE COURT HELD THAT PRESUMPTIONS, WHILE OFTEN VALID (AND SOME OF
WHICH, I THINK, LIKE THE PRESUMPTION OF DEATH BASED ON LONG UNEXPLAINED
ABSENCE, MAY PERHAPS BE EVEN SALUTARY IN EFFECT), MUST NOT BE ALLOWED
TO STAND WHERE THEY ABRIDGE OR DENY A SPECIFIC CONSTITUTIONAL
GUARANTEE.  IT IS ONE THING TO RELY ON A PRESUMPTION TO JUSTIFY
CONDITIONAL ADMINISTRATION OF THE ESTATE OF A PERSON ABSENT WITHOUT
EXPLANATION FOR SEVEN YEARS, SEE CUNNIUS V. READING SCHOOL DISTRICT,
198 U.S. 458; COMPARE SCOTT V. MCNEAL, 154 U.S. 34; IT WOULD BE QUITE
ANOTHER TO USE THE PRESUMPTION OF DEATH FROM SEVEN YEARS' ABSENCE TO
CONVICT A MAN OF MURDER.  I DO NOT THINK IT CAN BE DENIED THAT USE OF
THE STATUTORY PRESUMPTIONS IN THE CASE BEFORE US AT THE VERY LEAST
SERIOUSLY IMPAIRED GAINEY'S CONSTITUTIONAL RIGHT TO HAVE A JURY WEIGH
THE FACTS OF HIS CASE WITHOUT ANY CONGRESSIONAL INTERFERENCE THROUGH
PREDETERMINATION OF WHAT EVIDENCE WOULD BE SUFFICIENT TO PROVE THE
FACTS NECESSARY TO CONVICT IN A PARTICULAR CASE. 

THE BAILEY CASE ALSO EMPHATICALLY ANSWERS THE COURT'S INSISTENCE THAT
THIS ENCROACHMENT ON GAINEY'S CONSTITUTIONAL RIGHTS WAS JUSTIFIED OR
NEUTRALIZED BY THE TRIAL COURT'S INSTRUCTION THAT WHILE EVIDENCE OF
UNEXPLAINED PRESENCE WAS SUFFICIENT UNDER THE STATUTE TO CONVICT, THE
JURY NONETHELESS WAS NOT COMPELLED TO CONVICT.  THIS SAME KIND OF
CONTENTION WAS MADE TO THIS COURT AND REJECTED IN BAILEY, WHERE THE
ALABAMA SUPREME COURT HAD UPHELD THAT STATE'S PRESUMPTION ON THE GROUND
THAT "WITH SUCH EVIDENCE BEFORE THEM, THE JURY ARE STILL LEFT FREE TO
FIND THE ACCUSED GUILTY OR NOT GUILTY, ACCORDING AS THEY MAY BE
SATISFIED OF HIS GUILT OR NOT, BY THE WHOLE EVIDENCE."  BAILEY V.
STATE, 161 ALA.  75, 78, 49 SO. 886, 887.  THIS COURT ANSWERED THAT
CONTENTION THEN, AS I THINK IT SHOULD NOW, SAYING: 

"THE POINT IS THAT, IN SUCH A CASE, THE STATUTE AUTHORIZES THE JURY
TO CONVICT.  IT IS NOT ENOUGH TO SAY THAT THE JURY MAY NOT ACCEPT THAT
EVIDENCE AS ALONE SUFFICIENT; FOR THE JURY MAY ACCEPT IT, AND THEY HAVE
THE EXPRESS WARRANT OF THE STATUTE TO ACCEPT IT AS A BASIS FOR THEIR
VERDICT."  219 U.S., AT 235. 

AND THE COURT ADDED THAT "THE NORMAL ASSUMPTION IS THAT THE JURY WILL
FOLLOW THE STATUTE AND, ACTING IN ACCORDANCE WITH THE AUTHORITY IT
CONFERS, WILL ACCEPT AS SUFFICIENT WHAT THE STATUTE EXPRESSLY SO
DESCRIBES."  ID., AT 237. 

EVEN IF I COULD ACCEPT THE DOCTRINE THAT CONGRESS AFTER DECLARING
THAT CERTAIN CONDUCT SHALL BE A CRIME HAS FURTHER POWER TO TELL JUDGES
AND JURIES THAT CERTAIN EVIDENCE SHALL BE SUFFICIENT TO PROVE THAT
CONDUCT AND CONVICT A DEFENDANT, I COULD NOT AGREE THAT THESE STATUTORY
PRESUMPTIONS ARE CONSTITUTIONAL.  THEY DECLARE MERE PRESENCE AT A STILL
SITE WITHOUT MORE TO BE SUFFICIENT EVIDENCE TO CONVICT OF THE CRIMES OF
CARRING ON A DISTILLERY BUSINESS AND POSSESSING A STILL.  (FN5)  WHILE
PRESENCE AT A STILL IS UNQUESTIONABLY A RELEVANT CIRCUMSTANCE TO ADD TO
OTHERS TO PROVE POSSESSION OR OPERATION OF A STILL, I COULD NOT
POSSIBLY AGREE THAT MERE PRESENCE IS SUFFICIENT IN AND OF ITSELF,
WITHOUT ANY SUPPORTING EVIDENCE, TO PERMIT A FINDING THAT, BEYOND A
REASONABLE DOUBT, THE PERSON PRESENT CARRIED ON A DISTILLERY BUSINESS
OR POSSESSED A STILL OR  EVEN AIDED AND ABETTED IN COMMITTING THOSE
CRIMES.  INDEED, WITH RESPECT TO THE CRIME OF POSSESSION, AS THE COURT
CONCEDES, WE HELD SQUARELY TO THE CONTRARY IN BOZZA V. UNITED STATES,
330 U.S. 160, QUITE PROPERLY, I THINK.  IN SETTING ASIDE THE BOZZA
CONVICTION FOR POSSESSION OF A STILL, WHICH HAD BEEN BASED ON MERE
PRESENCE AT A STILL, THIS COURT WAS ACTING IN ACCORDANCE WITH THE
HISTORIC PRINCIPLE THAT "INDEPENDENT TRIAL JUDGES AND INDEPENDENT
APPELLATE JUDGES HAVE A MOST IMPORTANT PLACE UNDER OUR CONSTITUTIONAL
PLAN SINCE THEY HAVE POWER TO SET ASIDE CONVICTIONS."  UNITED STATES EX
REL. TOTH V. QUARLES, 350 U.S. 11, 19.  THIS JUDICIAL RESPONSIBILITY TO
PASS ON THE SUFFICIENCY OF THE EVIDENCE MUST BE EXERCISED IN EACH CASE,
NO MORE TO BE CONTROLLED BY A GENERAL CONGRESSIONAL ENACTMENT THAN IT
COULD BE BY A SPECIAL ACT DIRECTED TO ONE CASE ONLY.  (FN6)  THIS
PROTECTIVE FUNCTION OF THE COURT IS AMPLY DEMONSTRATED IN THE CASE
BEFORE US:  WHILE GAINEY WAS ORIGINALLY INDICTED ON FOUR COUNTS, THE
TRIAL JUDGE DIRECTED A VERDICT OF ACQUITTAL ON ONE (FN7) AND THE COURT
OF APPEALS ORDERED ACQUITTAL ON ANOTHER.  (FN8) 

IT INDEED IS TRUE, AS THE COURT SUGGESTS, THAT IT WAS TO MAKE
CONVICTIONS POSSIBLE ON NO MORE EVIDENCE THAN PRESENCE THAT THE
PRESUMPTION STATUTE HERE UNDER CONSIDERATION WAS PASSED.  UNDOUBTEDLY A
PRESUMPTION WHICH CAN BE USED TO PRODUCE CONVICTIONS WITHOUT THE
NECESSITY OF PROVING A CRUCIAL ELEMENT OF THE CRIME CHARGED - AND A
SOMETIMES DIFFICULT-TO-PROVE ELEMENT AT THAT (FN9) - IS A BOON TO
PROSECUTORS AND AN INCONGRUOUS SNARE FOR DEFENDANTS IN A COUNTRY THAT
CLAIMS TO REQUIRE PROOF OF GUILT BEYOND A REASONABLE DOUBT.   QUITE
ACCURATELY SUCH A USE OF A PRESUMPITON HAS BEEN DESCRIBED AS "FIRST AID
TO THE DISTRICT ATTORNEY."  (FN10)  INSTEAD OF SUPPORTING THE
CONSTITUTIONALITY OF SUCH A USE OF STATUTORY PRESUMPTIONS, HOWEVER, I
THINK THIS ARGUMENT BASED ON NECESSITY AND CONVENIENCE POINTS OUT ITS
FATAL DEFECTS.  I SUPPOSE NO ONE WOULD DENY THAT THE GOVERNMENT'S
BURDEN WOULD ALSO BE MADE LIGHTER IF THE DEFENDANT WAS NOT REPRESENTED
BY COUNSEL, COMPARE GIDEON V. WAINWRIGHT, 372 U.S. 335, OR IF THE JURY
COULD RECEIVE AND CONSIDER CONFESSIONS EXTORTED BY TORTURE, COMPARE
BROWN V. MISSISSIPPI, 297 U.S. 278, OR IF EVIDENCE OBTAINED FROM
DEFENDANTS THROUGH ILLEGAL SEARCHES AND SEIZURES COULD BE USED AGAINST
THEM, COMPARE MAPP V. OHIO, 367 U.S. 643, BUT THIS COURT HAS NOT
HESITATED TO STRIKE DOWN SUCH ENCROACHMENTS ON THOSE CONSTITUTIONAL
RIGHTS.  YET HERE THE COURT SANCTIONS A METHOD LESS CRUDE, BUT JUST AS
EFFECTIVE, TO DENY GAINEY HIS CONSTITUTIONAL RIGHT TO A TRIAL BY JURY. 
(FN11) 

I CANNOT SUBSCRIBE TO THE IDEA THAT ANY ONE OF THE CONSTITUTIONAL
GRANTS OF POWER TO CONGRESS ENUMERATED IN ART. I, SEC. 8, INCLUDING THE
NECESSARY AND PROPER CLAUSE, CONTAINS EITHER AN EXPRESS OR AN IMPLIED
POWER OF CONGRESS TO INSTRUCT JURIES AS TO WHAT EVIDENCE IS SUFFICIENT
TO CONVICT DEFENDANTS IN PARTICULAR CASES.  (FN12)  CONGRESS CAN
UNDOUBTEDLY CREATE CRIMES, BUT IT CANNOT CONSTITUTIONALLY TRY THEM. 
THE CONSTITUTION SPECIFICALLY PROHIBITS BILLS OF ATTAINDER.  CONGRESS
CAN DECLARE CERTAIN CONDUCT A CRIME, UNLESS BARRED BY SOME
CONSTITUTIONAL PROVISION, BUT IT MUST, IF TRUE TO OUR CONSTITUTION OF
DIVIDED POWERS AND THE FIFTH AMENDMENT'S COMMAND THAT CASES BE TRIED
ACCORDING TO DUE PROCESS OF LAW, LEAVE THE TRIAL OF THOSE CRIMES TO THE
COURTS, IN WHICH JUDGES OR JURIES CAN DECIDE THE FACTS ON THEIR OWN
JUDGMENT WITHOUT LEGISLATIVE CONSTRAINT AND JUDGES CAN SET ASIDE
CONVICTIONS WHICH THEY BELIEVE ARE NOT JUSTIFIED BY THE EVIDENCE.  SEE
TOT V. UNITED STATES, 319 U.S. 463, 473 (CONCURRING OPINION).  "IT IS
NOT WITHIN THE PROVINCE OF A LEGISLATURE TO DECLARE AN INDIVIDUAL
GUILTY OR PRESUMPTIVELY GUILTY OF A CRIME."  MCFARLAND V. AMERICAN
SUGAR REFINING CO., 241 U.S. 79, 86.  SEE MANLEY V. GEORGIA, 279 U.S.
1.  YET, VIEWED REALISTICALLY, THAT IS WHAT THE PRESUMPTION WHICH THE
COURT TODAY APPROVES DOES IN THIS CASE.  I THINK THAT THE PRESUMPTION
WHICH SHOULD GOVERN INSTEAD IN CRIMINAL TRIALS IN THE COURTS OF THIS
COUNTRY IS THE TIME-HONORED PRESUMPTION OF INNOCENCE ACCORDED TO ALL
CRIMINAL DEFENDANTS UNTIL THEY ARE PROVED GUILTY BY COMPETENT
EVIDENCE. 

NOR CAN A POWER OF CONGRESS TO DETRACT FROM THE CONSTITUTIONAL POWER
OF JURIES AND JUDGES TO DECIDE WHAT FACTS ARE ENOUGH TO CONVICT BE
IMPLIED BECAUSE OF THE POWER OF CONGRESS TO MAKE PROCEDURAL RULES OR
RULES OF EVIDENCE.  SEE EX PARTE FISK, 113 U.S. 713, 720.  IT IS NOT
DISPUTED THAT CONGRESS HAS POWER TO PRESCRIBE RULES GOVERNING
ADMISSIBILITY OF EVIDENCE AND PURELY PROCEDURAL MATTERS.  THE CONGRESS
UNQUESTIONABLY COULD DECLARE THE FACT OF PRESENCE TO BE ADMISSIBLE
EVIDENCE, FOR CERTAINLY IT IS RELEVANT WHEN CONSIDERED ALONG WITH OTHER
CIRCUMSTANCES.  YET THIS POWER TO SAY WHAT SHALL OR SHALL NOT BE
ADMISSIBLE IN NO WAY EMPOWERS CONGRESS TO DETERMINE WHAT FACTS, ONCE
ADMITTED, SUFFICE TO PROVE GUILT BEYOND A REASONABLE DOUBT.  (FN13)
AND I CERTAINLY CANNOT JOIN THE COURT WHEN IT SAYS: 

"THE PROCESS OF MAKING THE DETERMINATION OF RATIONALITY IS, BY ITS
NATURE, HIGHLY EMPIRICAL, AND IN MATTERS NOT WITHIN SPECIALIZED
JUDICIAL COMPETENCE OR COMPLETELY COMMONPLACE, SIGNIFICANT WEIGHT
SHOULD BE ACCORDED THE CAPACITY OF CONGRESS TO AMASS THE STUFF OF
ACTUAL EXPERIENCE AND CULL CONCLUSIONS FROM IT." 

THE IMPLICATION OF THIS STATEMENT IS THAT SOMEHOW CONGRESS IS BETTER
QUALIFIED TO DECIDE WHAT FACTS ARE SUFFICIENT TO CONVICT DEFENDANTS
THAN ARE COURTS AND JURIES.  I ACCEPT THE PROPOSITION THAT CONGRESS IS
THE PROPER BRANCH OF OUR GOVERNMENT TO DECIDE LEGISLATIVE POLICIES AND
ENACT GENERAL LAWS AND THAT IN SO DOING IT MUST OF NECESSITY DEAL WITH
FACTS TO SOME EXTENT.  THIS IS AS THE CONSTITUTION PROVIDES.  BUT
CONGRESS IS NOT AUTHORIZED NOR HAS IT ANY SPECIAL "EXPERTISE" WITH
WHICH I AM FAMILIAR WHICH ENTITLES IT TO DIRECT JURIES AS TO WHAT
CONCLUSIONS THEY MAY OR MUST DRAW FROM THE UNIQUE FACTS OF SPECIFIC
CRIMINAL CASES TRIED IN FEDERAL COURTS.  MOREOVER, EVEN WERE I TO
ASSUME THAT CONGRESS DOES HAVE AN EXPERTISE TO ASESS FACTS IN LAWSUITS
WHICH IS SUPERIOR TO THAT OF JURIES AND JUDGES, I STILL COULD NOT JOIN
THE COURT'S OPINION, FOR I THINK THAT THE FOUNDERS OF OUR GOVERNMENT
DECIDED FOR US THAT THESE ARE MATTERS "WITHIN SPECIALIZED" - AND
EXCLUSIVE - "JUDICIAL COMPETENCE."  AS THIS COURT HAS SAID WITH
REFERENCE TO JURY TRIAL OF FACTS: 

"WHETHER RIGHT OR WRONG, THE PREMISE UNDERLYING THE CONSTITUTIONAL
METHOD FOR DETERMINING GUILT OR INNOCENCE IN FEDERAL COURTS IS THAT
LAYMEN ARE BETTER THAN SPECIALISTS TO PERFORM THIS TASK."  UNITED
STATES EX REL. TOTH V. QUARLES, 350 U.S. 11, 18.    BESIDES IMPAIRING
GAINEY'S RIGHT TO TRIAL BY JURY ACCORDING TO DUE PROCESS SAFEGUARDS,
THE STATUTES IN THIS CASE I THINK VIOLATED GAINEY'S CONSTITUTIONAL
RIGHTS IN STILL ANOTHER WAY.  THESE STATUTORY PRESUMPTIONS MUST TEND,
WHEN INCORPORATED INTO AN INSTRUCTION, AS THEY WERE HERE, TO INFLUENCE
THE JURY TO REACH AN INFERENCE WHICH THE TRIER OF FACT MIGHT NOT
OTHERWISE HAVE THOUGHT JUSTIFIED, TO PUSH SOME JURORS TO CONVICT WHO
MIGHT NOT OTHERWISE HAVE DONE SO.  CF. POLLOCK V. WILLIAMS, 322 U.S. 4,
15.  THE UNDOUBTED PRACTICAL EFFECT OF LETTING GUILT REST ON
UNEXPLAINED PRESENCE ALONE IS TO FORCE A DEFENDANT TO COME FORWARD AND
TESTIFY, HOWEVER MUCH HE MAY THINK DOING SO MAY JEOPARDIZE HIS CHANCES
OF ACQUITTAL, SINCE IF HE DOES NOT HE ALMOST CERTAINLY DESTROYS THOSE
CHANCES.  THIS IS COMPULSION, WHICH I THINK RUNS COUNTER TO THE FIFTH
AMENDMENT'S PURPOSE TO FORBID CONVICTIONS ON COMPELLED TESTIMONY.  THE
COMPULSION HERE IS OF COURSE MORE SUBTLE AND LESS CRUEL PHYSICALLY THAN
COMPULSION BY TORTURE, BUT IT IS NONETHELESS COMPULSION, AND IT IS
NONETHELESS EFFECTIVE.  I AM AWARE THAT THIS COURT IN YEE HEM V. UNITED
STATES, 268 U.S. 178, 185, HELD THAT USE OF A PRESUMPTIVE SQUEEZE LIKE
THIS ONE DID NOT AMOUNT TO A FORM OF COMPULSION FORBIDDEN BY THE FIFTH
AMENDMENT.  THE COURT'S REASONING WAS CONTAINED IN A SINGLE PARAGRAPH,
THE CENTRAL ARGUMENT OF WHICH WAS THAT DESPITE A PRESUMPTION LIKE THIS
A DEFENDANT IS LEFT "ENTIRELY FREE TO TESTIFY OR NOT AS HE CHOOSES." 
THAT ARGUMENT, IT SEEMS TO ME, WOULD ALSO JUSTIFY ADMITTING IN EVIDENCE
A CONFESSION EXTORTED BY A POLICEMAN'S POINTING A GUN AT THE HEAD OF AN
ACCUSED, ON THE THEORY THAT THE MAN BEING THREATENED WAS ENTIRELY FREE
TO CONFESS OR NOT, AS HE CHOSE.  I THINK THE HOLDING IN YEE HEM IS
COMPLETELY OUT OF HARMONY WITH THE FIFTH AMENDMENT'S PROHIBITION
AGAINST COMPULSORY SELF-INCRIMINATION, AND I WOULD OVERRULE IT.  SEE
FELDMAN V. UNITED STATES, 322 U.S. 487, 494 (DISSENTING OPINION);
COMPARE LEYRA V. DENNO, 347 U.S. 556.  SEE ALSO STATE V. LAPOINTE, 81
N.H. 227, 123 A. 692, QUOTED WITH APPROVAL IN THE OPINION OF THE COURT
BELOW, 322 F.2D 292, 296 (C.A. 5TH CIR.). 

FOR ALL THE FOREGOING REASONS, I THINK THAT THESE TWO STATUTORY
PRESUMPTIONS BY WHICH CONGRESS HAS TRIED TO RELIEVE THE GOVERNMENT OF
ITS BURDEN OF PROVING A MAN GUILTY AND TO TAKE AWAY FROM COURTS AND
JURIES THE FUNCTION AND DUTY OF DECIDING GUILT OR INNOCENCE ACCORDING
TO THE EVIDENCE BEFORE THEM, UNCONSTITUTIONALLY ENCROACH ON THE
FUNCTIONS OF COURTS AND DENY PERSONS ACCUSED OF CRIME RIGHTS WHICH OUR
CONSTITUTION GUARANTEES THEM.  THE MOST IMPORTANT AND MOST CRUCIAL
ACTION THE COURTS TAKE IN TRYING PEOPLE FOR CRIME IS TO RESOLVE FACTS. 
THIS IS A JUDICIAL, NOT A LEGISLATIVE, FUNCTION.  ITHINK THAT IN
PASSING THESE TWO SECTIONS CONGRESS STEPPED OVER ITS CONSTITUTIONALLY
LIMITED BOUNDS AND ENCROACHED ON THE CONSTITUTIONAL POWER OF COURTS TO
TRY CASES.  I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE COURT BELOW
AND GRANT GAINEY A NEW TRIAL BY JUDGE AND JURY WITH ALL THE PROTECTIONS
ACCORDED BY THE LAW OF THE LAND. 

FN1  26 U.S.C. SEC. 5601(A)(1) (1958 ED.)  PROVIDES: 

"OFFENSES. 

"ANY PERSON WHO: 

"(1)  UNREGISTERED STILLS. 

"HAS IN HIS POSSESSION OR CUSTODY, OR UNDER HIS CONTROL, ANY STILL OR
DISTILLING APPARATUS SET UP WHICH IS NOT REGISTERED, AS REQUIRED BY

      *         *         *    *         * 

"SHALL BE FINED NOT MORE THAN $10,000, OR IMPRISONED NOT MORE THAN 5
YEARS, OR BOTH, FOR EACH SUCH OFFENSE." 

FN2  26 U.S.C. SEC. 5601(A)(4) (1958 ED.)  PROVIDES: 

"OFFENSES. 

"ANY PERSON WHO: 

     *         * *         *         * 

"(4)  FAILURE OR REFUSAL OF DISTILLER OR RECTIFIER TO GIVE BOND. 

"CARRIES ON THE BUSINESS OF A DISTILLER OR RECTIFIER WITHOUT HAVING
GIVEN BOND AS REQUIRED BY LAW ... 

     *         *         *         *         * 

"SHALL BE FINED NOT MORE THAN $10,000, OR IMPRISONED NOT MORE THAN 5
YEARS, OR BOTH, FOR EACH SUCH OFFENSE." 

FN3  SECTION 5601(B)(1) PROVIDES: 

"(B)  PRESUMPTIONS. 

"(1)  UNREGISTERED STILLS. 

"WHENEVER ON TRIAL FOR VIOLATION OF SUBSECTION (A)(1) THE DEFENDANT
IS SHOWN TO HAVE BEEN AT THE SITE OR PLACE WHERE, AND AT THE TIME WHEN,
A STILL OR DISTILLING APPARATUS WAS SET UP WITHOUT HAVING BEEN
REGISTERED, SUCH PRESENCE OF THE DEFENDANT SHALL BE DEEMED SUFFICIENT
EVIDENCE TO AUTHORIZE CONVICTION, UNLESS THE DEFENDANT EXPLAINS SUCH
PRESENCE TO THE SATISFACTION OF THE JURY (OR OF THE COURT WHEN TRIED
WITHOUT JURY)." 


"(2)  FAILURE OR REFUSAL OF DISTILLER OR RECTIFIER TO GIVE BOND. 

"WHENEVER ON TRIAL FOR VIOLATION OF SUBSECTION (A)(4) THE DEFENDANT
IS SHOWN TO HAVE BEEN AT THE SITE OR PLACE WHERE, AND AT THE TIME WHEN,
THE BUSINESS OF A DISTILLER OR RECTIFIER WAS SO ENGAGED IN OR CARRIED
ON, SUCH PRESENCE OF THE DEFENDANT SHALL BE DEEMED SUFFICIENT EVIDENCE
TO AUTHORIZE CONVICTION, UNLESS THE DEFENDANT EXPLAINS SUCH PRESENCE TO
THE SATISFACTION OF THE JURY (OR OF THE COURT WHEN TRIED WITHOUT
JURY)." 

FN4  ALTHOUGH THE COURT DOES NOT CONSIDER THE VALIDITY OF SEC.
5601(B)(1), ITS REASONING SURELY WOULD SEEM TO APPLY TO THAT SECTION AS
WELL. 

FN5  I AGREE WITH THE COURT'S HOLDING THAT THE LANGUAGE OF SEC.
5601(B)(2) "PERMITS THE JUDGE TO SUBMIT A CASE TO THE JURY ON THE BASIS
OF THE ACCUSED'S PRESENCE ALONE."  THE COURT DOES NOT SUGGEST ANY
REASON WHY IT WOULD INTERPRET THE IDENTICAL LANGUAGE IN SEC. 5601(B)(1)
ANY DIFFERENTLY. 

FN6  SUCH AN ACT OBVIOUSLY WOULD BE PROSCRIBED AS A BILL OF
ATTAINDER, FORBIDDEN BY ART. I, SEC. 9.  SEE UNITED STATES V.LOVETT,
328 U.S. 303; CUMMINGS V. MISSOURI, 4 WALL.  277; EX PARTE GARLAND, 4
WALL.  333. 

FN7  THE TRIAL JUDGE DIRECTED A VERDICT OF ACQUITTAL ON A COUNT
CHARGING GAINEY WITH WORKING IN A DISTILLERY WHICH DID NOT BEAR A SIGN
SHOWING THE NAME OF THE PERSON ENGAGED IN THE DISTILLING AND DENOTING
THE BUSINESS IN WHICH HE WAS ENGAGED, AN OFFENSE MADE PUNISHABLE BY 26
U.S.C. SECS. 5180(A), 5681(C) (1958 ED.). 

FN8  COUNT THREE OF THE INDICTMENT CHARGED GAINEY WITH CARRYING ON
THE BUSINESS OF A DISTILLER WITH INTENT TO DEFRAUD THE UNITED STATES OF
TAXES, A VIOLATION OF 26 U.S.C.  SEC. 5602 (1958 ED.).  THE COURT OF
APPEALS, HOLDING THAT THE RECORD SHOWED "NO EVIDENCE WHATEVER OF INTENT
TO DEFRAUD," SET ASIDE THE JURY'S VERDICT OF CONVICTION ON THAT COUNT. 
322 F.2D 292, 300. 

FN9  IN THIS CASE, HOWEVER, THE RECORD SHOWS THAT THERE
UNQUESTIONABLY WAS ENOUGH OTHER EVIDENCE TO SUBMIT THE CASE TO THE JURY
WITHOUT NEED FOR ANY ARTIFICIAL PRESUMPTION.  BUT THE COURT DOES NOT
SUGGEST THAT THE USE HERE OF THIS PRESUMPTION EITHER SHOULD BE OR COULD
BE CALLED HARMLESS ERROR. 

FN10  CHAMBERLAIN, PRESUMPTIONS AS FIRST AID TO THE DISTRICT
ATTORNEY, 14 A.B.A.J. 287. 

FN11  "ONCE THE THUMBSCREW AND THE FOLLOWING CONFESSION MADE
CONVICTION EASY; BUT THAT METHOD WAS CRUDE AND, I SUPPOSE,NOW WOULD BE
DECLARED UNLAWFUL UPON SOME GROUND.  HEREAFTER, PRESUMPTION IS TO
LIGHTEN THE BURDEN OF THE PROSECUTOR.  THE VICTIM WILL BE SPARED THE
TROUBLE OF CONFESSING AND WILL GO TO HIS CELL WITHOUT MUTILATION OR
DISQUIETING OUTCRY."  CASEY V. UNITED STATES, 276 U.S. 413, 420
(DISSENTING OPINION). 

FN12  IT MIGHT BE ARGUED, ALTHOUGH THE COURT DOES NOT SO ARGUE OR
HOLD, THAT CONGRESS IF IT WISHED COULD MAKE PRESENCE AT A STILL A CRIME
IN ITSELF, AND SO CONGRESS SHOULD BE FREE TO CREATE CRIMES WHICH ARE
CALLED "POSSESSION" AND "CARRYING ON AN ILLEGAL DISTILLERY BUSINESS"
BUT WHICH ARE DEFINED IN SUCH A WAY THAT UNEXPLAINED PRESENCE IS
SUFFICIENT AND INDISPUTABLE EVIDENCE IN ALL CASES TO SUPPORT CONVICTION
FOR THOSE OFFENSES.  SEE FERRY V. RAMSEY, 277 U.S. 88.  ASSUMING FOR
THE SAKE OF ARGUMENT THAT CONGRESS COULD MAKE UNEXPLAINED PRESENCE A
CRIMINAL ACT, AND IGNORING ALSO THE REFUSAL OF THIS COURT IN OTHER
CASES TO UPHOLD A STATUTORY PRESUMPTION ON SUCH A THEORY, SEE HEINER V.
DONNAN, 285 U.S. 312, THERE IS NO INDICATION HERE THAT CONGRESS
INTENDED TO ADOPT SUCH A MISLEADING METHOD OF DRAFTSMANSHIP, NOR IN MY
JUDGMENT COULD THE STATUTORY PROVISIONS IF SO CONSTRUED ESCAPE
CONDEMNATION FOR VAGUENESS, UNDER THE PRINCIPLES APPLIED IN LANZETTA V.
NEW JERSEY, 306 U.S. 451, AND MANY OTHER CASES. 

FN13  "WHILE IT IS WITHIN THE PROVINCE OF THE LEGISLATURE TO
DETERMINE THE SOURCES OF EVIDENCE, THE MODES OF VERIFICATION, WHO MAY
OR MAY NOT BE COMPETENT WITNESSES, I AM NOT PREPARED TO SAY THEY MAY
WEIGH AND DETERMINE THE QUANTITY OF EVIDENCE, WHICH SHALL SUFFICE TO
PRODUCE CONVICTION IN THE MIND OF THE JUDGE OR JUROR WHO TRIES A
CAUSE."  THOMAS, J., DISSENTING IN COMMONWEALTH V. WILLIAMS, 6 GRAY (72
MASS.) 1, 10, CITED WITH APPROVAL IN STATE V. BESWICK, 13 R.I. 211,
219. 
..END :























CARRINGTON V. RASH 380 U.S. 89 


NO. 82.  ARGUED JANUARY 28, 1965.  - DECIDED MARCH 1, 1965.  - 378
S.W.2D 304, REVERSED. 


PETITIONER, A MEMBER OF THE ARMED SERVICES WHO MOVED TO TEXAS IN 1962
AND IS CONCEDEDLY DOMICILED AND INTENDS TO MAKE HIS PERMANENT HOME
THERE, WAS REFUSED THE RIGHT TO VOTE BECAUSE OF A PROVISION OF THE
TEXAS CONSTITUTION PERMITTING A SERVICEMAN TO VOTE ONLY IN THE COUNTY
WHERE HE RESIDED AT THE TIME OF ENTRY INTO SERVICE.  HELD:  A STATE CAN
IMPOSE REASONABLE RESIDENCE REQUIREMENTS FOR VOTING BUT IT CANNOT,
UNDER THE EQUAL PROTECTION CLAUSE, DENY THE BALLOT TO A BONA FIDE
RESIDENT MERELY BECAUSE HE IS A MEMBER OF THE ARMED SERVICES.  PP. 89
97. 

CARRINGTON V. RASH ET AL. 

CERTIORARI TO THE SUPREME COURT OF TEXAS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

A PROVISION OF THE TEXAS CONSTITUTION PROHIBITS "ANY MEMBER OF THE
ARMED FORCES OF THE UNITED STATES" WHO MOVES HIS HOME TO TEXAS DURING
THE COURSE OF HIS MILITARY DUTY FROM EVER VOTING IN ANY ELECTION IN
THAT STATE "SO LONG AS HE OR SHE IS A MEMBER OF THE ARMED FORCES." 
(FN1)  THE QUESTION PRESENTED IS WHETHER THIS PROVISION, AS CONSTRUED
BY THE SUPREME COURT OF TEXAS IN THE PRESENT CASE, (FN2) DEPRIVES THE
PETITIONER OF A RIGHT SECURED BY THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  THE SUPREME COURT OF TEXAS DECIDED THAT IT DOES
NOT AND REFUSED TO ISSUE A WRIT OF MANDAMUS ORDERING PETITIONER'S LOCAL
ELECTION OFFICIALS TO PERMIT HIM TO VOTE, TWO JUSTICES DISSENTING.  378
S.W.2D 304.  WE GRANTED CERTIORARI, 379 U.S. 812. 

THE PETITIONER, A SERGEANT IN THE UNITED STATES ARMY, ENTERED THE
SERVICE FROM ALABAMA IN 1946 AT THE AGE OF 18.  THE STATE CONCEDES THAT
HE HAS BEEN DOMICILED IN TEXAS SINCE 1962, AND THAT HE INTENDS TO MAKE
HIS HOME THERE PERMANENTLY.  HE HAS PURCHASED A HOUSE IN EL PASO WHERE
HE LIVES WITH HIS WIFE AND TWO CHILDREN.  HE IS ALSO THE PROPRIETOR OF
A SMALL BUSINESS THERE.  THE PETITIONER'S POST OF MILITARY DUTY IS NOT
IN TEXAS, BUT AT WHITE SANDS, NEW MEXICO.  HE REGULARLY COMMUTES FROM
HIS HOME IN EL PASO TO HIS ARMY JOB AT WHITE SANDS.  HE PAYS PROPERTY
TAXES IN TEXAS AND HAS HIS AUTOMOBILE REGISTERED THERE.  BUT FOR HIS
UNIFORM, THE STATE CONCEDES THAT THE PETITIONER WOULD BE ELIGIBLE TO
VOTE IN EL PASO COUNTY, TEXAS. 

TEXAS HAS UNQUESTIONED POWER TO IMPOSE REASONABLE RESIDENCE
RESTRICTIONS ON THE AVAILABILITY OF THE BALLOT.  POPE V. WILLIAMS, 193
U.S. 621.  THERE CAN BE NO DOUBT EITHER OF THE HISTORIC FUNCTION OF THE
STATES TO ESTABLISH, ON A NONDISCRIMINATORY BASIS, AND IN ACCORDANCE
WITH THE CONSTITUTION, OTHER QUALIFICATIONS FOR THE EXERCISE OF THE
FRANCHISE.  INDEED, "THE STATES HAVE LONG BEEN HELD TO HAVE BROAD
POWERS TO DETERMINE THE CONDITIONS UNDER WHICH THE RIGHT OF SUFFRAGE
MAY BE EXERCISED."  LASSITER V. NORTHAMPTON ELECTION BD., 360 U.S. 45,
50.  COMPARE UNITED STATES V. CLASSIC, 313 U.S. 299; EX PART YARBROUGH,
110 U.S. 651.  "IN OTHER WORDS, THE PRIVILEGE TO VOTE IN A STATE IS
WITHIN THE JURISDICTION OF THE STATE ITSELF, TO BE EXERCISED AS THE
STATE MAY DIRECT, AND UPON SUCH TERMS AS TO IT MAY SEEM PROPER,
PROVIDED, OR COURSE, NO DISCRIMINATION IS MADE BETWEEN INDIVIDUALS IN
VIOLATION OF THE FEDERAL CONSTITUTION."  POPE V. WILLIAMS, SUPRA, AT
632. 

THIS TEXAS CONSTITUTIONAL PROVISION, HOWEVER, IS UNIQUE.  (FN3)
TEXAS HAS SAID THAT NO SERVICEMAN MAY EVER ACQUIRE A VOTING RESIDENCE
IN THE STATE SO LONG AS HE REMAINS IN SERVICE.  IT IS TRUE THAT THE
STATE HAS TREATED ALL MEMBERS OF THE MILITARY WITH AN EQUAL HAND.  AND
MERE CLASSIFICATION, AS THIS COURT HAS OFTEN SAID, DOES NOT OF ITSELF
DEPRIVE A GROUP OF EQUAL PROTECTION.  WILLIAMSON V. LEE OPTICAL CO.,
348 U.S. 483.  BUT THE FACT THAT A STATE IS DEALING WITH A DISTINCT
CLASS AND TREATS THE MEMBERS OF THAT CLASS EQUALLY DOES NOT END THE
JUDICIAL INQUIRY.  "THE COURTS MUST REACH AND DETERMINE THE QUESTION
WHETHER THE CLASSIFICATIONS DRAWN IN A STATUTE ARE REASONABLE IN LIGHT
OF ITS PURPOSE  ...  ."  MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 191. 

IT IS ARGUED THAT THIS ABSOLUTE DENIAL OF THE VOTE TO SERVICEMEN LIKE
THE PETITIONER FULFILLS TWO PURPOSES.  FIRST, THE STATE SAYS IT HAS A
LEGITIMATE INTEREST IN IMMUNIZING ITS ELECTIONS FROM THE CONCENTRATED
BALLOTING OF MILITARY PERSONNEL, WHOSE COLLECTIVE VOICE MAY OVERWHELM A
SMALL LOCAL CIVILIAN COMMUNITY.  SECONDLY, THE STATE SAYS IT HAS A
VALID INTEREST IN PROTECTING THE FRANCHISE FROM INFILTRATION BY
TRANSIENTS, AND IT CAN REASONABLY ASSUME THAT THOSE SERVICEMEN WHO FALL
WITHIN THE CONSTITUTIONAL EXCLUSION WILL BE WITHIN THE STATE FOR ONLY A
SHORT PERIOD OF TIME. 

THE THEORY UNDERLYING THE STATE'S FIRST CONTENTION IS THAT THE TEXAS
CONSTITUTIONAL PROVISION IS NECESSARY TO PREVENT THE DANGER OF A
"TAKEOVER" OF THE CIVILIAN COMMUNITY RESULTING FROM CONCENTRATED VOTING
BY LARGE NUMBERS OF MILITARY PERSONNEL IN BASES PLACED NEAR TEXAS TOWNS
AND CITIES.  A BASE COMMANDER, TEXAS SUGGESTS, WHO OPPOSES LOCAL POLICE
ADMINISTRATION OR TEACHING POLICIES IN LOCAL SCHOOLS, MIGHT INFLUENCE
HIS MEN TO VOTE IN CONFORMITY WITH HIS PREDILECTIONS.  LOCAL BOND
ISSUES MAY FAIL, AND PROPERTY TAXES STAGNATE AT LOW LEVELS BECAUSE
MILITARY PERSONNEL ARE UNWILLING TO INVEST IN THE FUTURE OF THE AREA. 
WE STRESS - AND THIS A THEME TO BE REITERATED - THAT TEXAS HAS THE
RIGHT TO REQUIRE THAT ALL MILITARY PERSONNEL ENROLLED TO VOTE BE BONA
FIDE RESIDENTS OF THE COMMUNITY.  BUT IF THEY ARE IN FACT RESIDENTS,
WITH THE INTENTION OF MAKING TEXAS THEIR HOME INDEFINITELY, THEY, AS
ALL OTHER QUALIFIED RESIDENTS, HAVE A RIGHT TO AN EQUAL OPPORTUNITY FOR
POLITICAL REPRESENTATION.  CF. GRAY V. SANDERS, 372 U.S. 368.  "FENCING
OUT" FROM THE FRANCHISE A SECTOR OF THE POPULATION BECAUSE OF THE WAY
THEY MAY VOTE IS CONSTITUTIONALLY IMPERMISSIBLE.  "THE EXERCISE OF
RIGHTS SO VITAL TO THE MAINTENANCE OF DEMOCRATIC INSTITUTIONS,"
SCHNEIDER V. STATE, 308 U.S. 147, 161, CANNOT CONSTITUTIONALLY BE
OBLITERATED BECAUSE OF A FEAR OF THE POLITICAL VIEWS OF A PARTICULAR
GROUP OF BONA FIDE RESIDENTS.  YET, THAT IS WHAT TEXAS CLAIMS TO HAVE
DONE HERE. 

THE STATE'S SECOND ARGUMENT IS THAT ITS VOTING BAN IS JUSTIFIED
BECAUSE OF THE TRANSIENT NATURE OF SERVICE IN THE ARMED FORCES.  (FN4)
AS THE SUPREME COURT OF TEXAS STATED: "PERSONS IN MILITARY SERVICE ARE
SUBJECT AT ALL TIMES TO REASSIGNMENT, AND HENCE TO A CHANGE IN THEIR
ACTUAL RESIDENCE ...  THEY DO NOT ELECT TO BE WHERE THEY ARE.  THEIR
REASONS FOR BEING WHERE THEY ARE  ...  CANNOT BE THE SAME AS THOSE OF
THE PERMANENT RESIDENTS."  378 S.W.2D, AT 306.  THE TEXAS CONSTITUTION
PROVIDES THAT A UNITED STATES CITIZEN CAN BECOME A QUALIFIED ELECTOR IF
HE HAS "RESIDED IN THIS STATE ONE (1) YEAR NEXT PRECEDING AN ELECTION
AND THE LAST SIX (6) MONTHS WITHIN THE DISTRICT OR COUNTY IN WHICH SUCH
PERSON OFFERS TO VOTE."  ARTICLE VI, SEC. 2, TEXAS CONSTITUTION.  IT IS
THE INTEGRITY OF THIS QUALIFICATION OF RESIDENCE WHICH TEXAS CONTENDS
IS PROTECTED BY THE VOTING BAN ON MEMBERS OF THE ARMED FORCES. 

BUT ONLY WHERE MILITARY PERSONNEL ARE INVOLVED HAS TEXAS BEEN
UNWILLING TO DEVELOP MORE PRECISE TESTS TO DETERMINE THE BONA FIDES OF
AN INDIVIDUAL CLAIMING TO HAVE ACTUALLY MADE HIS HOME IN THE STATE LONG
ENOUGH TO VOTE.  THE STATE'S LAW REPORTS DISCLOSE THAT THERE HAVE BEEN
MANY CASES WHERE THE LOCAL ELECTION OFFICIALS HAVE DETERMINED THE ISSUE
OF BONA FIDE RESIDENCE.  THESE OFFICIALS AND THE COURTS REVIEWING THEIR
ACTIONS HAVE REQUIRED A "FREELY EXERCISED INTENTION" OF REMAINING
WITHIN THE STATE, HARRISON V. CHESSHIR, 316 S.W.2D 909, 915.  THE
DECLARATIONS OF VOTERS CONCERNING THEIR INTENT TO RESIDE IN THE STATE
AND IN A PARTICULAR COUNTY IS OFTEN NOT CONCLUSIVE; THE ELECTION
OFFICIALS MAY LOOK TO THE ACTUAL FACTS AND CIRCUMSTANCES.  STRATTON V.
HALL, 90 S.W.2D 865, 866.  BY STATUTE, (FN5) TEXAS DEALS WITH
PARTICULAR CATEGORIES OF CITIZENS WHO, LIKE SOLDIERS, PRESENT
SPECIALIZED PROBLEMS IN DETERMINING RESIDENCE.  STUDENTS AT COLLEGES
AND UNIVERSITIES IN TEXAS, PATIENTS IN HOSPITALS AND OTHER INSTITUTIONS
WITHIN THE STATE, AND CIVILIAN EMPLOYEES OF THE UNITED STATES
GOVERNMENT MAY BE AS TRANSIENT AS MILITARY PERSONNEL.  BUT ALL OF THEM
ARE GIVEN AT LEAST AN OPPORTUNITY TO SHOW THE ELECTION OFFICIALS THAT
THEY ARE BONA FIDE RESIDENTS. 

INDEED, TEXAS HAS BEEN ABLE, IN OTHER AREAS, TO WINNOW SUCCESSFULLY
FROM THE RANKS OF THE MILITARY THOSE WHOSE RESIDENCE IN THE STATE IS
BONA FIDE.  IN DIVORCE CASES, FOR EXAMPLE, THE RESIDENCE REQUIREMENT
FOR JURISDICTIONAL PURPOSES, LIKE THE REQUIREMENT FOR THE VOTE, IS ONE
YEAR IN THE STATE AND SIX MONTHS IN THE FORUM COUNTY.  THE TEXAS COURTS
HAVE HELD THAT MERELY BEING STATIONED WITHIN THE STATE MAY BE
INSUFFICIENT TO SHOW RESIDENCE, EVEN THOUGH THE STATUTORY PERIOD IS
FULFILLED.  EVEN A DECLARED INTENTION TO ESTABLISH A RESIDENCE MAY BE
NOT ENOUGH.  "HOWEVER, THE FACT THAT ONE IS A SOLDIER OR SAILOR DOES
NOT DEPRIVE HIM OF THE RIGHT TO CHANGE HIS RESIDENCE OR DOMICILE AND
ACQUIRE A NEW ONE."  ROBINSON V. ROBINSON, 235 S.W.2D 228, 230. 

WE DEAL HERE WITH MATTERS CLOSE TO THE CORE OF OUR CONSTITUTIONAL
SYSTEM.  "THE RIGHT  ...  TO CHOOSE," UNITED STATES V. CLASSIC, 313
U.S. 299, 314, THAT THIS COURT HAS BEEN SO ZEALOUS TO PROTECT, MEANS,
AT THE LEAST, THAT STATES MAY NOT CASUALLY DEPRIVE A CLASS OF
INDIVIDUALS OF THE VOTE BECAUSE OF SOME REMOTE ADMINISTRATIVE BENEFIT
TO THE STATE.  OYAMA V. CALIFORNIA, 332 U.S. 633.   BY FORBIDDING A
SOLDIER EVER TO CONTROVERT THE PRESUMPTION OF NONRESIDENCE, THE TEXAS
CONSTITUTION IMPOSES AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  "THERE IS NO INDICATION IN THE CONSTITUTION THAT
...  OCCUPATION AFFORDS A PERMISSIBLE BASIS FOR DISTINGUISHING BETWEEN
QUALIFIED VOTERS WITHIN THE STATE."  GRAY V. SANDERS, 372 U.S. 368,
380. 

WE RECOGNIZE THAT SPECIAL PROBLEMS MAY BE INVOLVED IN DETERMINING
WHETHER SERVICEMEN HAVE ACTUALLY ACQUIRED A NEW DOMICILE IN A STATE FOR
FRANCHISE PURPOSES.  WE EMPHASIZE THAT TEXAS IS FREE TO TAKE REASONABLE
AND ADEQUATE STEPS, AS HAVE OTHER STATES, (FN6) TO SEE THAT ALL
APPLICANTS FOR THE VOTE ACTUALLY FULFILL THE REQUIREMENTS OF BONA FIDE
RESIDENCE.  BUT THIS CONSTITUTIONAL PROVISION GOES BEYOND SUCH RULES. 
"THE PRESUMPTION HERE CREATED IS  ...  DEFINITELY CONCLUSIVE -
INCAPABLE OF BEING OVERCOME BY PROOF OF THE MOST POSITIVE CHARACTER." 
HEINER V. DONNAN, 285 U.S. 312, 324.  ALL SERVICEMEN NOT RESIDENTS OF
TEXAS BEFORE INDUCTION COME WITHIN THE PROVISION'S SWEEP.  NOT ONE OF
THEM CAN EVER VOTE IN TEXAS, NO MATTER HOW LONG TEXAS MAY HAVE BEEN HIS
TRUE HOME.  "THE UNIFORM OF OUR COUNTRY  ...  MUST NOT BE THE BADGE OF
DISFRANCHISEMENT FOR THE MAN OR WOMAN WHO WEARS IT."  (FN7)  REVERSED. 

FN1  TEXAS CONSTITUTION, ART. VI, SEC. 2: 

"ANY MEMBER OF THE ARMED FORCES OF THE UNITED STATES OR COMPONENT
BRANCHES THEREOF, OR IN THE MILITARY SERVICE OF THE UNITED STATES, MAY
VOTE ONLY IN THE COUNTY IN WHICH HE OR SHE RESIDED AT THE TIME OF
ENTERING SUCH SERVICE SO LONG AS HE OR SHE IS A MEMBER OF THE ARMED
FORCES." 

THE CONSTITUTIONAL PROVISION HAS BEEN IMPLEMENTED BY ARTICLE 5.02 OF
THE ELECTION CODE OF TEXAS WHICH PROVIDES, IN PART: 

"NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, ANY MEMBER OF
THE ARMED FORCES OF THE UNITED STATES OR COMPONENT BRANCHES THEREOF WHO
IS ON ACTIVE DUTY IN THE MILITARY SERVICE OF THE UNITED STATES MAY VOTE
ONLY IN THE COUNTY IN WHICH HE OR SHE RESIDED AT THE TIME OF ENTERING
SUCH SERVICE SO LONG AS HE OR SHE IS A MEMBER OF THE ARMED FORCES. 
THIS RESTRICTION APPLIES ONLY TO MEMBERS OF THE ARMED FORCES WHO ARE ON
ACTIVE DUTY, AND THE PHRASE 'TIME OF ENTERING SUCH SERVICE' MEANS THE
TIME OF COMMENCING THE CURRENT ACTIVE DUTY.  A RE-ENLISTMENT AFTER A
TEMPORARY SEPARATION FROM SERVICE UPON TERMINATION OF A PRIOR
ENLISTMENT SHALL NOT BE CONSTRUED TO BE THE COMMENCEMENT OF A NEW
PERIOD OF SERVICE, AND IN SUCH CASE THE COUNTY IN WHICH THE PERSON
RESIDED AT THE TIME OF COMMENCING ACTIVE SERVICE UNDER THE PRIOR
ENLISTMENT SHALL BE CONSTRUED TO BE THE COUNTY OF RESIDENCE AT THE TIME
OF ENTERING SERVICE." 

IN MABRY V. DAVIS, 232 F. SUPP. 930 (D.C.W.D. TEXAS 1964), A THREE
JUDGE COURT RECENTLY DECLARED THIS SAME PROVISION UNCONSTITUTIONAL AS
VIOLATING THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

FN2  "THE SELF-EVIDENT PURPOSE OF THE AMENDMENT TO THE CONSTITUTION
WAS TO PREVENT A PERSON ENTERING MILITARY SERVICE AS A RESIDENT CITIZEN
OF A COUNTY IN TEXAS FROM ACQUIRING A DIFFERENT VOTING RESIDENCE IN
TEXAS DURING THE PERIOD OF HIS MILITARY SERVICE, AND TO PREVENT A
PERSON ENTERING MILITARY SERVICE AS A RESIDENT CITIZEN OF ANOTHER STATE
FROM ACQUIRING A VOTING RESIDENCE IN TEXAS DURING THE PERIOD OF
MILITARY SERVICE."  378 S.W.2D 304, 305. 

FN3  WHILE MANY STATES HAVE RULES WHICH PRESCRIBE SPECIAL TESTS FOR
QUALIFYING MILITARY PERSONNEL FOR THE VOTE, NONE GOES SO FAR AS
COMPLETELY TO FORECLOSE FROM THE FRANCHISE ALL SERVICEMEN WHO WERE
NONRESIDENTS BEFORE INDUCTION. 

ONE OTHER STATE, NEVADA, HAS A PROVISION WHICH ON ITS FACE SEEMS AS
PROHIBITORY AS ART. VI, SEC. 2, OF THE TEXAS CONSTITUTION.  THE NEVADA
CONSTITUTION PROVIDES THAT: 

"THE RIGHT OF SUFFRAGE SHALL BE ENJOYED BY ALL PERSONS, OTHERWISE
ENTITLED TO THE SAME, WHO MAY BE IN THE MILITARY OR NAVAL SERVICE OF
THE UNITED STATES; PROVIDED, THE VOTES SO CAST SHALL BE MADE TO APPLY
TO THE COUNTY AND TOWNSHIP OF WHICH SAID VOTERS WERE BONA FIDE
RESIDENTS AT THE TIME OF THEIR ENTRY INTO SUCH SERVICE  ...  ."  NEV.
CONST., ART. 2 SEC. 3. 

BUT THE ATTORNEY GENERAL OF NEVADA HAS RECENTLY INTERPRETED THIS
PROVISION TO MEAN THAT SERVICEMEN SUCH AS PETITIONER CAN ESTABLISH A
VOTING RESIDENCE IN THE STATE IF THEY SHOW THEIR INTENT TO REMAIN BY
"CLEAR AND UNEQUIVOCAL EVIDENCE."  OP. ATTY. GEN. NEV.  194, 197 (1961
1962). 

UNDER THE FEDERAL VOTING ASSISTANCE ACT OF 1955, 69 STAT. 584, THE
DEPARTMENT OF DEFENSE COLLECTS AND DISTRIBUTES TO MILITARY PERSONNEL AN
ANALYSIS OF STATE VOTER QUALIFICATIONS AS APPLIED TO SERVICEMEN.  THE
1964 REPORT STATES:    "FOR VOTING PURPOSES THE LEGAL RESIDENCE OF
MEMBERS OF THE ARMED FORCES IS GENERALLY THE STATE FROM WHICH THEY
ENTERED MILITARY SERVICE.  THIS HOME STATE REMAINS AS THE ONLY STATE IN
WHICH A PERSON IN THE ARMED FORCES HAS THE LEGAL RIGHT TO VOTE UNLESS
CERTAIN CONDITIONS ARE MET.  ALMOST ALL STATES EXCEPT TEXAS WILL PERMIT
PERSONS IN THE ARMED FORCES TO ACQUIRE A NEW VOTING RESIDENCE WITHIN
THEIR JURISDICTION.  WHEN THIS IS ACCOMPLISHED, VOTING RIGHTS IN THE
OLD STATE OF RESIDENCE ARE LOST."  VOTING INFORMATION 1964, DEPARTMENT
OF DEFENSE, P. X.    CONSTITUTIONAL AND STATUTORY PROVISIONS OF OTHER
STATES WHICH TREAT THE MILITARY SPECIALLY, DO NOT ABSOLUTELY PROHIBIT
ANY OPPORTUNITY TO PROVE RESIDENCE.  THE GEORGIA CONSTITUTION, FOR
EXAMPLE, PROVIDES THAT NO MEMBER OF THE ARMED FORCES "SHALL ACQUIRE THE
RIGHTS OF AN ELECTOR BY REASON OF BEING STATIONED ON DUTY IN THIS
STATE."  GEORGIA CONST., SEC. 2-702; SEE INDIANA CONST., ART. 2 SEC. 3;
OREGON CONST., ART. II, SEC. 5; ALABAMA CODE, TIT. 17, SEC. 17.  OTHER
STATES DISTINGUISH BETWEEN SERVICEMEN WHO LIVE ON THE BASE, AND THOSE
WHO HAVE ACQUIRED HOMES IN THE COMMUNITY.  CF. RESTATEMENT, CONFLICT OF
LAWS SEC. 21, COMMENT C. 

FN4  THE CONSTITUTIONAL PROVISION AT ISSUE IN THIS CASE SEEMS
DESIGNED MORE AS A RULE PROHIBITING A SERVICEMAN FROM EVER ACQUIRING A
VOTING RESIDENCE THAN A DISQUALIFICATION FROM THE FRANCHISE.  PRIOR TO
1954, ART. VI, SEC. 1, OF THE TEXAS CONSTITUTION INCLUDED AMONG THE
"CLASSES OF PERSONS ...  NOT  ...  ALLOWED TO VOTE IN THIS STATE":
"5.  ALL SOLDIERS, MARINES AND SEAMEN EMPLOYED IN THE SERVICE OF THE
ARMY OR NAVY OF THE UNITED STATES."  THIS CLAUSE WAS ELIMINATED,
ACCORDING TO THE ANNOTATOR'S NOTES, TO "CONFER THE PRIVILEGE TO VOTE
UPON MEMBERS OF THE REGULAR ESTABLISHMENT OF THE ARMED FORCES."  9
VERNON'S TEXAS CIV. STAT. 19 (1964 SUPP.).  THE 1954 CONSTITUTIONAL
AMENDMENT, INVOLVED IN THIS CASE, WAS ADDED TO THE SECTION WHICH
ESTABLISHES RESIDENCE QUALIFICATIONS FOR VOTERS. 

FN5  9 VERNON'S TEX. CIV. STAT. (ELECTION CODE) ART. 5.08. 

FN6  SEE NOTE 3, SUPRA. 

FN7  MESSAGE OF GOVERNOR ELLIS ARNALL TO GENERAL ASSEMBLY OF GEORGIA,
P. 5 (JANUARY 3, 1944). 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, DISSENTING. 

        I. 

ANYONE NOT FAMILIAR WITH THE PROVISIONS OF THE FOURTEENTH AMENDMENT,
THE HISTORY OF THAT AMENDMENT, AND THE DECISIONS OF THE COURT IN THIS
CONSTITUTIONAL AREA, WOULD GATHER FROM TODAY'S OPINION THAT IT IS AN
ESTABLISHED CONSTITUTIONAL TENET THAT STATE LAWS GOVERNING THE
QUALIFICATIONS OF VOTERS ARE SUBJECT TO THE LIMITATIONS OF THE EQUAL
PROTECTION CLAUSE.  YET ANY DISPASSIONATE SURVEY OF THE PAST WILL
REVEAL THAT THE PRESENT DECISION IS THE FIRST TO SO HOLD. 

IN MAKING THIS HOLDING THE COURT TOTALLY IGNORES, AS IT DID IN LAST
TERM'S REAPPORTIONMENT CASES, REYNOLDS V. SIMS, 377 U.S. 533 (AND
COMPANION CASES), ALL THE HISTORY OF THE FOURTEENTH AMENDMENT AND THE
COURSE OF JUDICIAL DECISIONS WHICH TOGETHER PLAINLY SHOW THAT THE EQUAL
PROTECTION CLAUSE WAS NOT INTENDED TO TOUCH STATE ELECTORAL MATTERS. 
SEE MY DISSENTING OPINION IN REYNOLDS V. SIMS, AT 589.  IF THAT HISTORY
DOES NOT PROVE WHAT I THINK IT DOES, WE ARE AT LEAST ENTITLED TO BE
TOLD WHY.  WHILE I CANNOT EXPRESS SURPRISE OVER TODAY'S DECISION AFTER
THE REAPPORTIONMENT CASES, WHICH THOUGH BOUND TO FOLLOW I CONTINUE TO
BELIEVE ARE CONSTITUTIONALLY INDEFENSIBLE, I CAN AND DO RESPECTFULLY,
BUT EARNESTLY, RECORD MY PROTEST AGAINST THIS FURTHER EXTENSION OF
FEDERAL JUDICIAL POWER INTO THE POLITICAL AFFAIRS OF THE STATES.  THE
REAPPORTIONMENT CASES DO NOT REQUIRE THIS EXTENSION.  THEY WERE
CONCERNED WITH METHODS OF CONSTITUTING STATE LEGISLATURES; THIS CASE
INVOLVES STATE VOTER QUALIFICATIONS.  THE COURT IS QUITE RIGHT IN NOT
EVEN CITING THEM.  (FN1) 

I DEPLORE THE ADDED IMPETUS WHICH THIS DECISION GIVES TO THE CURRENT
TENDENCY OF JUDGING CONSTITUTIONAL QUESTIONS ON THE BASIS OF ABSTRACT
"JUSTICE" UNLEASHED FROM THE LIMITING PRINCIPLES THAT GO WITH OUR
CONSTITUTIONAL SYSTEM.  CONSTITUTIONALLY PRINCIPLED ADJUDICATION, HIGH
IN THE PROCESS OF WHICH IS DUE RECOGNITION OF THE JUST DEMANDS OF
FEDERALISM, LEAVES AMPLE ROOM FOR THE PROTECTION OF INDIVIDUAL RIGHTS. 
A CONSTITUTIONAL DEMOCRACY WHICH IN ORDER TO COPE WITH SEEMING NEEDS OF
THE MOMENT IS WILLING TO TEMPORIZE WITH ITS BASIC DISTRIBUTION AND
LIMITATION OF GOVERNMENTAL POWERS WILL SOONER OR LATER FIND ITSELF IN
TROUBLE. 

FOR REASONS SET FORTH AT LENGTH IN MY DISSENT IN REYNOLDS, I WOULD
DISMISS THE COMPLAINT IN THIS CASE FOR FAILURE TO STATE A CLAIM OF
FEDERAL RIGHT. 

                                          II. 

I ALSO THINK THIS DECISION WRONG EVEN ON THE COURT'S PREMISE THAT IT
IS FREE TO EXTEND THE EQUAL PROTECTION CLAUSE SO AS TO REACH STATE
ESTABLISHED VOTER QUALIFICATIONS.  THE QUESTION HERE IS SIMPLY WHETHER
THE DIFFERENTIATION IN VOTING ELIGIBILITY REQUIREMENTS WHICH TEXAS HAS
MADE IS FOUNDED ON A RATIONAL CLASSIFICATION.  IN JUDGING THIS QUESTION
I THINK THAT THE DICTATES OF HISTORY, EVEN THOUGH THE COURT HAS SEEN
FIT TO DISREGARD THEM FOR THE PURPOSE OF DETERMINING WHETHER IT SHOULD
GET INTO THE MATTER AT ALL, SHOULD CAUSE THE COURT TO TAKE A HARD LOOK
BEFORE STRIKING DOWN A TRADITIONAL STATE POLICY IN THIS AREA AS
RATIONALLY INDEFENSIBLE. 

ESSENTIALLY THE TEXAS STATUTE ESTABLISHES A RULE THAT SERVICEMEN FROM
OTHER STATES STATIONED AT TEXAS BASES ARE TO BE TREATED AS TRANSIENTS
FOR VOTING PURPOSES.  NO ONE DISPUTES THAT IN THE VAST MAJORITY OF
CASES TEXAS' VIEW OF THINGS ACCORDS WITH FACT.  ALTHOUGH IT IS
DOUBTLESS TRUE THAT THIS RULE MAY OPERATE IN SOME INSTANCES CONTRARY TO
THE ACTUAL FACTS, I DO NOT THINK THAT THE FEDERAL CONSTITUTION PREVENTS
THE STATE FROM IGNORING THAT POSSIBILITY IN THE OVERALL PICTURE.  IN MY
OPINION TEXAS COULD RATIONALLY CONCLUDE THAT SUCH INSTANCES WOULD
LIKELY BE TOO MINIMAL TO JUSTIFY THE ADMINISTRATIVE EXPENDITURE
INVOLVED IN COPING WITH THE "SPECIAL PROBLEMS" (ANTE.  P. 96) ENTAILED
IN WINNOWING OUT THE BONA FIDE PERMANENT RESIDENTS FROM AMONG THE
TRANSIENT SERVICEMEN LIVING OFF BASE AND SENDING THEIR CHILDREN TO
LOCAL SCHOOLS. 

BEYOND THIS, I THINK A LEGITIMATE DISTINCTION MAY BE DRAWN BETWEEN
THOSE WHO COME VOLUNTARILY INTO TEXAS IN CONNECTION WITH PRIVATE
OCCUPATIONS AND THOSE ORDERED INTO TEXAS BY MILITARY AUTHORITY. 
RESIDENCES ESTABLISHED BY THE LATTER ARE SUBJECT TO THE DOUBT, NOT
PRESENT TO THE SAME DEGREE WITH THE FORMER, THAT WHEN THE MILITARY
COMPULSION ENDS, SO ALSO MAY THE DESIRE TO REMAIN IN TEXAS. 

AND FINALLY, I THINK THAT TEXAS, GIVEN THE TRADITIONAL AMERICAN
NOTION THAT CONTROL OF THE MILITARY SHOULD ALWAYS BE KEPT IN CIVILIAN
HANDS, EMPHASIZED IN THE CASE OF TEXAS BY ITS OWN SPECIAL HISTORICAL
EXPERIENCE, (FN2) COULD RATIONALLY DECIDE TO PROTECT STATE AND LOCAL
POLITICS AGAINST THE INFLUENCES OF MILITARY VOTING STRENGTH BY, IN
EFFECT, POSTPONING THE PRIVILEGE OF VOTING OTHERWISE ATTACHING TO A
SERVICE-ACQUIRED DOMICILE UNTIL THE SERVICEMAN BECOMES A CIVILIAN AND
BY LIMITING TEXAS SERVICEMEN TO VOTING IN THE COUNTIES OF THEIR
ORIGINAL DOMICILE.  (FN3)  SUCH A POLICY ON TEXAS' PART MAY SEEM TO
MANY UNDULY PROVINCIAL IN LIGHT OF MODERN CONDITIONS, BUT IT CANNOT, IN
MY VIEW, BE SAID TO BE UNCONSTITUTIONAL. 

THUS WHETHER OR NOT THIS COURT HAS SUBJECT MATTER JURISDICTION IN
THIS CASE, THE JUDGMENT OF THE SUPREME COURT OF TEXAS SHOULD NOT BE
DISTURBED. 

FN1  NONE OF THE CASES ON WHICH THE COURT DOES RELY LENDS ANY SUPPORT
TO ITS DECISION. 

IN POPE V. WILLIAMS, 193 U.S. 621, THE COURT UPHELD A MARYLAND
STATUTE WHICH REQUIRED VOTERS TO HAVE BEEN REGISTERED IN THE STATE FOR
AT LEAST A YEAR.  THE COURT SAID OF THE RIGHT TO VOTE: 

"IT IS NOT A PRIVILEGE SPRINGING FROM CITIZENSHIP OF THE UNITED
STATES  ...  .  IT MAY NOT BE REFUSED ON ACCOUNT OF RACE, COLOR OR
PREVIOUS CONDITION OF SERVITUDE, BUT IT DOES NOT FOLLOW FROM MERE
CITIZENSHIP OF THE UNITED STATES.  IN OTHER WORDS, THE PRIVILEGE TO
VOTE IN A STATE IS WITHIN THE JURISDICTION OF THE STATE ITSELF, TO BE
EXERCISED AS THE STATE MAY DIRECT, AND UPON SUCH TERMS AS TO IT MAY
SEEM PROPER, PROVIDED, OF COURSE, NO DISCRIMINATION IS MADE BETWEEN
INDIVIDUALS IN VIOLATION OF THE FEDERAL CONSTITUTION (OBVIOUSLY
REFERRING TO THE FIFTEENTH AND NOT THE FOURTEENTH AMENDMENT)  ...  .
THE QUESTION WHETHER THE CONDITIONS PRESCRIBED BY THE STATE MIGHT BE
REGARDED BY OTHERS AS REASONABLE OR UNREASONABLE IS NOT A FEDERAL
ONE."  193 U.S., AT 632-633. 

LASSITER V. NORTHAMPTON ELECTION BD., 360 U.S. 45, UPHELD THE
LITERACY TEST APPLIED IN NORTH CAROLINA AGAINST AN ATTACK MADE ON ITS
FACE.  THE COURT NOTED THAT: 

"OF COURSE A LITERACY TEST, FAIR ON ITS FACE, MAY BE EMPLOYED TO
PERPETUATE THAT DISCRIMINATION WHICH THE FIFTEENTH AMENDMENT WAS
DESIGNED TO UPROOT."  360 U.S., AT 53. 

GRAY V. SANDERS, 372 U.S. 368, STRUCK DOWN GEORGIA'S COUNTY-UNIT
SYSTEM FOR COUNTING VOTES IN A PARTY PRIMARY ELECTION FOR THE
NOMINATION OF A UNITED STATES SENATOR.  IT DID NOT DEAL WITH VOTER
QUALIFICATIONS. 

UNITED STATES V. CLASSIC, 313 U.S. 299, DEALT WITH STUFFING BALLOT
BOXES, AND EX PARTE YARBROUGH, 110 U.S. 651, WITH INTIMIDATION OF
NEGROES ATTEMPTING TO VOTE.  NEITHER DEALT WITH VOTER QUALIFICATIONS. 

NONE OF THE OTHER FEDERAL CASES CITED BY THE COURT WAS CONCERNED IN
ANY WAY WITH VOTING. 

FN2  THE 1837 ELECTION LAW OF THE REPUBLIC OF TEXAS, SEC. 9, PROVIDED
"THAT REGULAR ENLISTED SOLDIERS, AND VOLUNTEERS FOR DURING THE WAR,
SHALL NOT BE ELIBIBLE TO VOTE FOR CIVIL OFFICERS."  2 LAWS OF REPUBLIC
OF TEXAS, P. 8, IN 1 GAMMEL, LAWS OF TEXAS, P. 1350.  "THIS PROVISION
WAS NO DOUBT INSPIRED BY THE MUTINOUS CONDUCT OF THE NONRESIDENT
VOLUNTEERS WHO HAD BEEN RECRUITED IN THE UNITED STATES AFTER THE BATTLE
OF SAN JACINTO.  THEY HAD DEFIED THE PROVISIONAL GOVERNMENT AND ON ONE
OCCASION IN JULY, 1836, HAD SENT AN OFFICER TO ARREST PRESIDENT DAVID
G. BURNETT AND HIS CABINET TO BRING THEM TO TRIAL BEFORE THE ARMY. 
THEY HAD CONTINUED THEIR REBELLIOUS CONDUCT AFTER SAM HOUSTON BECAME
THE FIRST PRESIDENT UNDER THE CONSTITUTION OF 1836.  IT WAS NOT UNTIL
MAY, 1837, THAT HOUSTON WAS ABLE TO DISSOLVE THE ARMY AND ELIMINATE
THIS THREAT TO CIVIL AUTHORITY.  THIS PROVISION DISFRANCHISING SOLDIERS
IN THE REGULAR ARMY WAS PLACED IN THE 1845 CONSTITUTION OF THE STATE OF
TEXAS AND HAS REMAINED IN EACH SUCCEEDING CONSTITUTION.  IT WAS
MODIFIED IN 1932 TO EXEMPT THE NATIONAL GUARD AND RESERVE AND RETIRED
OFFICERS AND MEN."  MCCALL, HISTORY OF TEXAS ELECTION LAWS, 9 VERNON'S
ANN. TEX. CIV. STAT., PP. XVII-XVIII (1952). 

OTHER STATES WHICH HAD SIMILAR PROVISIONS IN THEIR EARLY
CONSTITUTIONS INCLUDED ALABAMA, CONST. OF 1819, ART. III, SEC. 5;
ARKANSAS, CONST. OF 1836, ART. IV, SEC. 2; INDIANA, CONST. OF 1816,
ART. VI. SEC. 1; LOUISIANA, CONST. OF 1845, ART. 12; MISSOURI, CONST.
OF 1820, ART. III, SEC. 10; SOUTH CAROLINA, CONST. OF 1790 (AS AMENDED
IN 1810), ART. I, SEC. 4; VIRGINIA, CONST. OF 1830, ART. III, SEC. 14. 

THE 1932 AMENDMENT TO THE TEXAS CONSTITUTION WAS REPLACED IN 1954 BY
THE PRESENT PROVISION. 

FN3  TEX. CONST., ART. VI, SEC. 2, QUOTED IN COURT'S OPINION, ANTE,
N. 1. 
..END :




















UNITED STATES V. VENTRESCA 380 U.S. 102 


NO. 28.  ARGUED JANUARY 18-19, 1965.  - DECIDED MARCH 1, 1965.  - 324
F.2D 864, REVERSED. 


AN ALCOHOL AND TOBACCO TAX DIVISION INVESTIGATOR MADE AN AFFIDAVIT
STATING HIS BELIEF, ON THE BASIS OF HIS OWN OBSERVATIONS AND THE
OBSERVATIONS AND INVESTIGATION OF OTHER INVESTIGATORS, THAT THERE WAS
AN ILLEGAL DISTILLERY OPERATION IN RESPONDENT'S HOUSE.  THE AFFIDAVIT
DESCRIBED DIFFERENT OCCASIONS WHEN A CAR WAS DRIVEN TO THE REAR OF
RESPONDENT'S HOUSE WITH LOADS OF SUGAR OR EMPTY TINS; THE LOADING AT
THE HOUSE OF APPARENTLY FULL FIVE-GALLON CANS; THE SMELLING BY
INVESTIGATORS AS THEY WALKED IN FRONT OF THE HOUSE OF FERMENTING MASH;
AND THEIR HEARING THE SOUND OF A MOTOR PUMP AND METALLIC NOISES FROM
THE DIRECTION OF THE HOUSE.  A COMMISSIONER ISSUED A SEARCH WARRANT ON
THE BASIS OF THE AFFIDAVIT, PURSUANT TO WHICH A STILL WAS FOUND FOR THE
ILLEGAL POSSESSION AND OPERATION OF WHICH RESPONDENT WAS CONVICTED. 
THE COURT OF APPEALS REVERSED THE CONVICTION, HOLDING THE WARRANT
INSUFFICIENT TO ESTABLISH PROBABLE CAUSE.  HELD: THE AFFIDAVIT AMPLY
SHOWED FACTS TO ESTABLISH PROBABLE CAUSE TO SUPPORT THE COMMISSIONER'S
ISSUANCE OF THE SEARCH WARRANT.  PP. 105-111. 

(A)  IN A DOUBTFUL OR MARGINAL CASE A SEARCH UNDER A WARRANT MAY BE
SUSTAINABLE WHERE WITHOUT ONE IT WOULD FALL.  PP. 106-107. 

(B)  AN AFFIDAVIT FOR A SEARCH WARRANT MAY BE BASED ON HEARSAY
INFORMATION SO LONG AS THE MAGISTRATE IS INFORMED OF SOME OF THE
UNDERLYING CIRCUMSTANCES SUPPORTING THE AFFIANT'S CONCLUSIONS AND HIS
BELIEF THAT ANY INFORMANT INVOLVED, WHOSE IDENTITY NEED NOT BE
DISCLOSED, WAS CREDIBLE OR HIS INFORMATION RELIABLE.  AGUILAR V. TEXAS,
378 U.S. 108, FOLLOWED.  P. 108. 

(C)  THOUGH IN ORDER FOR A MAGISTRATE TO PERFORM HIS DETACHED
FUNCTION OF DETERMINING PROBABLE CAUSE AN AFFIDAVIT MUST RECITE THE
UNDERLYING CIRCUMSTANCES AND NOT MERE CONCLUSIONS AS TO PROBABLE CAUSE,
THE AFFIDAVIT MUST BE TESTED IN A COMMONSENSE WAY.  PP. 108-109. 

(D)  SINCE A FAIR READING OF THE WHOLE AFFIDAVIT, WHICH IS DETAILED
AND SPECIFIC, SETTING FORTH MANY OF THE UNDERLYING CIRCUMSTANCES,
REVEALS THAT ITS CONCLUSIONS ARE SUBSTANTIALLY BASED UPON OBSERVATIONS
OF GOVERNMENT OFFICERS, PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT
WAS SHOWN.  PP. 110-111. 

UNITED STATES V. VENTRESCA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, VENTRESCA, WAS CONVICTED IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MASSACHUSETTS OF POSSESSING AND OPERATING AN
ILLEGAL DISTILLERY.  THE CONVICTION WAS REVERSED BY THE COURT OF
APPEALS (ONE JUDGE DISSENTING) ON THE GROUND THAT THE AFFIDAVIT FOR A
SEARCH WARRANT PURSUANT TO WHICH THE STILL WAS FOUND WAS INSUFFICIENT
TO ESTABLISH PROBABLE CAUSE.  324 F.2D 864. 

THE AFFIDAVIT UPON WHICH THE WARRANT WAS ISSUED WAS MADE AND
SUBMITTED TO A UNITED STATES COMMISSIONER ON AUGUST 31, 1961, BY WALTER
MAZAKA, AN INVESTIGATOR FOR THE ALCOHOL AND TOBACCO TAX DIVISION OF THE
INTERNAL REVENUE SERVICE.  HE STATED THAT HE HAD REASON TO BELIEVE THAT
AN ILLEGAL DISTILLERY WAS IN OPERATION IN RESPONDENT, VENTRESCA'S,
HOUSE AT 148 1/2 COBURN AVENUE IN WORCESTER, MASSACHUSETTS.  THE
GROUNDS FOR THIS BELIEF WERE SET FORTH IN DETAIL IN THE AFFIDAVIT,
PREFACED WITH THE FOLLOWING STATEMENT: 

"BASED UPON OBSERVATIONS MADE BY ME, AND BASED UPON INFORMATION
RECEIVED OFFICIALLY FROM OTHER INVESTIGATORS ATTACHED TO THE ALCOHOL
AND TOBACCO TAX DIVISION ASSIGNED TO THIS INVESTIGATION, AND REPORTS
ORALLY MADE TO ME DESCRIBING THE RESULTS OF THEIR OBSERVATIONS AND
INVESTIGATION, THIS REQUEST FOR THE ISSUANCE OF A SEARCH WARRANT IS
MADE." 

THE AFFIDAVIT THEN DESCRIBED SEVEN DIFFERENT OCCASIONS BETWEEN JULY
28 AND AUGUST 30, 1961, WHEN A PONTIAC CAR WAS DRIVEN INTO THE YARD TO
THE REAR OF VENTRESCA'S HOUSE.  ON FOUR OCCASIONS THE CAR CARRIED LOADS
OF SUGAR IN 60-POUND BAGS; IT MADE TWO TRIPS LOADED WITH EMPTY TIN
CANS; AND ONCE IT WAS MERELY OBSERVED AS BEING HEAVILY LADEN.  GARRY,
THE CAR'S OWNER, AND INCARDONE, A PASSENGER, WERE SEEN ON SEVERAL
OCCASIONS LOADING THE CAR AT VENTRESCA'S HOUSE AND LATER UNLOADING
APPARENTLY FULL FIVE-GALLON CANS AT GARRY'S HOUSE LATE IN THE EVENING. 
ON AUGUST 28, AFTER A DELIVERY OF EMPTY TIN CANS TO VENTRESCA'S HOUSE,
GARRY AND INCARDONE WERE OBSERVED CARRYING FROM THE HOUSE CANS WHICH
APPEARED TO BE FILLED AND PLACING THEM IN THE TRUNK OF GARRY'S CAR. 
THE AFFIDAVIT WENT ON TO STATE THAT AT ABOUT 4 A.M. ON AUGUST 18, AND
AT ABOUT 4 A.M. ON AUGUST 30, "INVESTIGATORS' SMELLED THE ODOR OF
FERMENTING MASH AS THEY WALKED ALONG THE SIDEWALK IN FRONT OF
VENTRESCA'S HOUSE.  ON AUGUST 18 THEY HEARD, "AT OR ABOUT THE SAME
TIME,  ...  CERTAIN METALLIC NOISES."  ON AUGUST 30, THE DAY BEFORE THE
WARRANT WAS APPLIED FOR, THEY HEARD (AS THEY SMELLED THE MASH) "SOUNDS
SIMILAR TO THAT OF A MOTOR OR A PUMP COMING FROM THE DIRECTION OF"
VENTRESCA'S HOUSE.  THE AFFIDAVIT CONCLUDED: "THE FOREGOING INFORMATION
IS BASED UPON PERSONAL KNOWLEDGE AND INFORMATION WHICH HAS BEEN
OBTAINED FROM INVESTIGATORS OF THE ALCOHOL AND TOBACCO TAX DIVISION,
INTERNAL REVENUE SERVICE, WHO HAVE BEEN ASSIGNED TO THIS
INVESTIGATION." 

THE DISTRICT COURT UPHELD THE VALIDITY OF THE WARRANT ON A MOTION TO
SUPPRESS.  THE DIVIDED COURT OF APPEALS HELD THE WARRANT INSUFFICIENT
BECAUSE IT READ THE AFFADAVIT AS NOT SPECIFICALLY STATING IN SO MANY
WORDS THAT THE INFORMATION IT CONTAINED WAS BASED UPON THE PERSONAL
KNOWLEDGE OF MAZAKA OR OTHER RELIABLE INVESTIGATORS.  THE COURT OF
APPEALS REASONED THAT ALL OF THE INFORMATION RECITED IN THE AFFIDAVIT
MIGHT CONCEIVABLY HAVE BEEN OBTAINED BY INVESTIGATORS OTHER THAN
MAZAKA, AND IT COULD NOT BE CERTAIN THAT THE INFORMATION OF THESE OTHER
INVESTIGATORS WAS NOT IN TURN BASED UPON HEARSAY RECEIVED FROM
UNRELIABLE INFORMANTS RATHER THAN THEIR OWN PERSONAL OBSERVATIONS.  FOR
THIS REASON THE COURT FOUND THAT PROBABLE CAUSE HAD NOT BEEN
ESTABLISHED.  324 F.2D, AT 868-870.  WE GRANTED CERTIORARI TO CONSIDER
THE STANDARDS BY WHICH A REVIEWING COURT SHOULD APPROACH THE
INTERPRETATION OF AFFIDAVITS SUPPORTING WARRANTS WHICH HAVE BEEN DULY
ISSUED BY EXAMINING MAGISTRATES.  377 U.S. 989.  FOR THE REASONS STATED
BELOW, WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

                                    I 

THE FOURTH AMENDMENT STATES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED."  (FN1) 

WE BEGIN OUR ANALYSIS OF THIS CONSTITUTIONAL RULE MINDFUL OF THE FACT
THAT IN THIS CASE A SEARCH WAS MADE PURSUANT TO A SEARCH WARRANT.  IN
DISCUSSING THE FOURTH AMENDMENT POLICY AGAINST UNNECESSARY INVASIONS OF
PRIVACY, WE STATED IN AGUILAR V. TEXAS, 378 U.S. 108: 

"AN EVALUATION OF THE CONSTITUTIONALITY OF A SEARCH WARRANT SHOULD
BEGIN WITH THE RULE THAT 'THE INFORMED AND DELIBERATE DETERMINATIONS OF
MAGISTRATES EMPOWERED TO ISSUE WARRANTS  ...  ARE TO BE PREFERRED OVER
THE HURRIED ACTION OF OFFICERS  ...  WHO MAY HAPPEN TO MAKE ARRESTS.' 
UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 464.  THE REASONS FOR THIS
RULE GO TO THE FOUNDATIONS OF THE FOURTH AMENDMENT."  378 U.S., AT 110
111. 

IN JONES V. UNITED STATES, 362 U.S. 257, 270, THIS COURT, STRONGLY
SUPPORTING THE PREFERENCE TO BE ACCORDED SEARCHES UNDER A WARRANT,
INDICATED THAT IN A DOUBTFUL OR MARGINAL CASE A SEARCH UNDER A WARRANT
MAY BE SUSTAINABLE WHERE WITHOUT ONE IT WOULD FALL.  IN JOHNSON V.
UNITED STATES, 333 U.S. 10, AND CHAPMAN V. UNITED STATES, 365 U.S. 610,
THE COURT, IN CONDEMNING SEARCHES BY OFFICERS WHO INVADED PREMISES
WITHOUT A WARRANT, PLAINLY INTIMATED THAT HAD THE PROPER COURSE OF
OBTAINING A WARRANT FROM A MAGISTRATE BEEN FOLLOWED AND HAD THE
MAGISTRATE ON THE SAME EVIDENCE AVAILABLE TO THE POLICE MADE A FINDING
OF PROBABLE CAUSE, THE SEARCH UNDER THE WARRANT WOULD HAVE BEEN
SUSTAINED.  MR. JUSTICE JACKSON STATED FOR THE COURT IN JOHNSON: 

"THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT GRASPED BY
ZEALOUS OFFICERS, IS NOT THAT IT DENIES LAW ENFORCEMENT THE SUPPORT OF
THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM EVIDENCE.  ITS
PROTECTION CONSISTS IN REQUIRING THAT THOSE INFERENCES BE DRAWN BY A
NEUTRAL AND DETACHED MAGISTRATE INSTEAD OF BEING JUDGED BY THE OFFICER
ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING OUT CRIME. 
ANY ASSUMPTION THAT EVIDENCE SUFFICIENT TO SUPPORT A MAGISTRATE'S
DISINTERESTED DETERMINATION TO ISSUE A SEARCH WARRANT WILL JUSTIFY THE
OFFICERS IN MAKING A SEARCH WITHOUT A WARRANT WOULD REDUCE THE
AMENDMENT TO A NULLITY AND LEAVE THE PEOPLE'S HOMES SECURE ONLY IN THE
DISCRETION OF POLICE OFFICERS."  JOHNSON V. UNITED STATES, SUPRA, AT 13
14. 

THE FACT THAT EXCEPTIONS TO THE REQUIREMENT THAT SEARCHES AND
SEIZURES BE UNDERTAKEN ONLY AFTER OBTAINING A WARRANT ARE LIMITED (FN2)
UNDERSCORES THE PREFERENCE ACCORDED POLICE ACTION TAKEN UNDER A WARRANT
AS AGAINST SEARCHES AND SEIZURES WITHOUT ONE. 

WHILE A WARRANT MAY ISSUE ONLY UPON A FINDING OF "PROBABLE CAUSE,"
THIS COURT HAS LONG HELD THAT "THE TERM 'PROBABLE CAUSE'  ...  MEANS
LESS THAN EVIDENCE WHICH WOULD JUSTIFY CONDEMNATION," LOCKE V. UNITED
STATES, 7 CRANCH 339, 348, AND THAT A FINDING OF "PROBABLE CAUSE" MAY
REST UPON EVIDENCE WHICH IS NOT LEGALLY COMPETENT IN A CRIMINAL TRIAL. 
DRAPER V. UNITED STATES, 358 U.S. 307, 311.  AS THE COURT STATED IN
BRINEGAR V. UNITED STATES, 338 U.S. 160, 173, "THERE IS A LARGE
DIFFERENCE BETWEEN THE TWO THINGS TO BE PROVED (GUILT AND PROBABLE
CAUSE), AS WELL AS BETWEEN THE TRIBUNALS WHICH DETERMINE THEM, AND
THEREFORE A LIKE DIFFERENCE IN THE QUANTA AND MODES OF PROOF REQUIRED
TO ESTABLISH THEM."  THUS HERESAY MAY BE THE BASIS FOR ISSUANCE OF THE
WARRANT "SO LONG AS THERE IS A SUBSTANTIAL BASIS FOR CREDITING THE
HEARSAY."  JONES V. UNITED STATES, SUPRA, AT 272.  AND, IN AGUILAR WE
RECOGNIZED THAT "AN AFFIDAVIT MAY BE BASED ON HEARSAY INFORMATION AND
NEED NOT REFLECT THE DIRECT PERSONAL OBSERVATIONS OF THE AFFIANT," SO
LONG AS THE MAGISTRATE IS "INFORMED OF SOME OF THE UNDERLYING
CIRCUMSTANCES" SUPPORTING THE AFFIANT'S CONCLUSIONS AND HIS BELIEF THAT
ANY INFORMANT INVOLVED "WHOSE IDENTITY NEED NOT BE DISCLOSED  ...  WAS
'CREDIBLE' OR HIS INFORMATION 'RELIABLE.'"   AGUILAR V. TEXAS, SUPRA,
AT 114. 

THESE DECISIONS REFLECT THE RECOGNITION THAT THE FOURTH AMENDMENT'S
COMMANDS, LIKE ALL CONSTITUTIONAL REQUIREMENTS, ARE PRACTICAL AND NOT
ABSTRACT.  IF THE TEACHINGS OF THE COURT'S CASES ARE TO BE FOLLOWED AND
THE CONSTITUTIONAL POLICY SERVED, AFFIDAVITS FOR SEARCH WARRANTS, SUCH
AS THE ONE INVOLVED HERE, MUST BE TESTED AND INTERPRETED BY MAGISTRATES
AND COURTS IN A COMMONSENSE AND REALISTIC FASHION.  THEY ARE NORMALLY
DRAFTED BY NONLAWYERS IN THE MIDST AND HASTE OF A CRIMINAL
INVESTIGATION.  TECHNICAL REQUIREMENTS OF ELABORATE SPECIFICITY ONCE
EXACTED UNDER COMMON LAW PLEADINGS HAVE NO PROPER PLACE IN THIS AREA. 
A GRUDGING OR NEGATIVE ATTITUDE BY REVIEWING COURTS TOWARD WARRANTS
WILL TEND TO DISCOURAGE POLICE OFFICERS FROM SUBMITTING THEIR EVIDENCE
TO A JUDICIAL OFFICER BEFORE ACTING. 

THIS IS NOT TO SAY THAT PROBABLE CAUSE CAN BE MADE OUT BY AFFIDAVITS
WHICH ARE PURELY CONCLUSORY, STATING ONLY THE AFFIANT'S OR AN
INFORMER'S BELIEF THAT PROBABLE CAUSE EXISTS WITHOUT DETAILING ANY OF
THE "UNDERLYING CIRCUMSTANCES" UPON WHICH THAT BELIEF IS BASED.  SEE
AGUILAR V. TEXAS, SUPRA. RECITAL OF SOME OF THE UNDERLYING
CIRCUMSTANCES IN THE AFFIDAVIT IS ESSENTIAL IF THE MAGISTRATE IS TO
PERFORM HIS DETACHED FUNCTION AND NOT SERVE MERELY AS A RUBBER STAMP
FOR THE POLICE.  HOWEVER, WHERE THESE CIRCUMSTANCES ARE DETAILED, WHERE
REASON FOR CREDITING THE SOURCE OF THE INFORMATION IS GIVEN, AND WHEN A
MAGISTRATE HAS FOUND PROBABLE CAUSE, THE COURTS SHOULD NOT INVALIDATE
THE WARRANT BY INTERPRETING THE AFFIDAVIT IN A HYPERTECHNICAL, RATHER
THAN A COMMONSENSE, MANNER.  ALTHOUGH IN A PARTICULAR CASE IT MAY NOT
BE EASY TO DETERMINE WHEN AN AFFIDAVIT DEMONSTRATES THE EXISTENCE OF
PROBABLE CAUSE, THE RESOLUTION OF DOUBTFUL OR MARGINAL CASES IN THIS
AREA SHOULD BE LARGELY DETERMINED BY THE PREFERENCE TO BE ACCORDED TO
WARRANTS.  JONES V. UNITED STATES, SUPRA, AT 270. 

                       II. 

THE APPLICATION OF THE PRINCIPLES STATED ABOVE LEADS US TO REVERSE
THE COURT OF APPEALS.  THE AFFIDAVIT IN THIS CASE, IF READ IN A
COMMONSENSE WAY RATHER THAN TECHNICALLY, SHOWS AMPLE FACTS TO ESTABLISH
PROBABLE CAUSE AND ALLOW THE COMMISSIONER TO ISSUE THE SEARCH WARRANT. 
THE AFFIDAVIT AT ISSUE HERE, UNLIKE THE AFFIDAVIT HELD INSUFFICIENT IN
AGUILAR, IS DETAILED AND SPECIFIC.  IT SETS FORTH NOT MERELY "SOME OF
THE UNDERLYING CIRCUMSTANCES" SUPPORTING THE OFFICER'S BELIEF, BUT A
GOOD MANY OF THEM.  THIS IS APPARENT FROM THE SUMMARY OF THE AFFIDAVIT
ALREADY RECITED AND FROM ITS TEXT WHICH IS REPRODUCED IN THE APPENDIX. 

THE COURT OF APPEALS DID NOT QUESTION THE SPECIFICITY OF THE
AFFIDAVIT.  IT RESTED ITS HOLDING THAT THE AFFIDAVIT WAS INSUFFICIENT
ON THE GROUND THAT "THE AFFIDAVIT FAILED TO CLEARLY INDICATE WHICH OF
THE FACTS ALLEGED THEREIN WERE HEARSAY OR WHICH WERE WITHIN THE
AFFIANT'S OWN KNOWLEDGE," AND THEREFORE "THE COMMISSIONER COULD ONLY
CONCLUDE THAT THE ENTIRE AFFIDAVIT WAS BASED ON HEARSAY."   324 F.2D,
AT 868.  WHILE THE COURT OF APPEALS RECOGNIZED THAT AN AFFIDAVIT BASED
ON HEARSAY WILL BE SUFFICIENT, "SO LONG AS A SUBSTANTIAL BASIS FOR
CREDITING THE HEARSAY IS PRESENTED," JONES V. UNITED STATES, SUPRA, AT
269, IT FELT THAT NO SUCH BASIS EXISTED HERE BECAUSE THE HEARSAY
CONSISTED OF REPORTS BY "INVESTIGATORS," AND THE AFFIDAVIT DID NOT
RECITE HOW THE INVESTIGATORS OBTAINED THEIR INFORMATION.  THE COURT OF
APPEALS CONCEDED THAT THE AFFIDAVIT STATED THAT THE INVESTIGATORS
THEMSELVES SMELLED THE ODOR OF FERMENTING MASH, BUT ARGUED THAT THE
REST OF THEIR INFORMATION MIGHT ITSELF HAVE BEEN BASED UPON HEARSAY
THUS RAISING "THE DISTINCT POSSIBILITY OF HEARSAY-UPON-HEARSAY."   324
F.2D, AT 869.  FOR THIS REASON, IT HELD THAT THE AFFIDAVIT DID NOT
ESTABLISH PROBABLE CAUSE. 

WE DISAGREE WITH THE CONCLUSION OF THE COURT OF APPEALS.  ITS
DETERMINATION THAT THE AFFIDAVIT MIGHT HAVE BEEN BASED WHOLLY UPON
HEARSAY CANNOT BE SUPPORTED IN LIGHT OF THE FACT THAT MAZAKA, A
GOVERNMENT INVESTIGATOR, SWORE UNDER OATH THAT THE RELEVANT INFORMATION
WAS IN PART BASED "UPON OBSERVATIONS MADE BY ME" AND "UPON PERSONAL
KNOWLEDGE" AS WELL AS UPON "INFORMATION WHICH HAS BEEN OBTAINED FROM
INVESTIGATORS OF THE ALCOHOL AND TOBACCO TAX DIVISION, INTERNAL REVENUE
SERVICE, WHO HAVE BEEN ASSIGNED TO THIS INVESTIGATION."  IT ALSO SEEMS
TO US THAT THE ASSUMPTION OF THE COURT OF APPEALS THAT ALL OF THE
INFORMATION IN MAZAKA'S AFFIDAVIT MAY IN FACT HAVE COME FROM UNRELIABLE
ANONYMOUS INFORMERS, PASSED ON TO GOVERNMENT INVESTIGATORS, WHO IN TURN
RELATED THIS INFORMATION TO MAZAKA IS WITHOUT FOUNDATION.  MAZAKA SWORE
THAT, INSOFAR AS THE AFFIDAVIT WAS NOT BASED UPON HIS OWN OBSERVATIONS,
IT WAS "BASED UPON INFORMATION RECEIVED OFFICIALLY FROM OTHER
INVESTIGATORS ATTACHED TO THE ALCOHOL AND TOBACCO TAX DIVISION ASSIGNED
TO THIS INVESTIGATION, AND REPORTS ORALLY MADE TO ME DESCRIBING THE
RESULTS OF THEIR OBSERVATIONS AND INVESTIGATION."  THE COURT OF APPEALS
ITSELF RECOGNIZED THAT THE AFFIDAVIT STATED THAT "'INVESTIGATORS'
(EMPLOYEES OF THE SERVICE) SMELLED THE ODOR OF FERMENTING MASH IN THE
VICINITY OF THE SUSPECTED DWELLING."  324 F.2D, AT 869.  A QUALIFIED
OFFICER'S DETECTION OF THE SMELL OF MASH HAS OFTEN BEEN HELD A VERY
STRONG FACTOR IN DETERMINING THAT PROBABLE CAUSE EXISTS SO AS TO ALLOW
ISSUANCE OF A WARRANT.  (FN3)  MOREOVER, UPON READING THE AFFIDAVIT AS
A WHOLE, IT BECOMES CLEAR THAT THE DETAILED OBSERVATIONS RECOUNTED IN
THE AFFIDAVIT CANNOT FAIRLY BE REGARDED AS HAVING BEEN MADE IN ANY
SIGNIFICANT PART BY PERSONS OTHER THAN FULLTIME INVESTIGATORS OF THE
ALCOHOL AND TOBACCO TAX DIVISION OF THE INTERNAL REVENUE SERVICE. 
OBSERVATIONS OF FELLOW OFFICERS OF THE GOVERNMENT ENGAGED IN A COMMON
INVESTIGATION ARE PLAINLY A RELIABLE BASIS FOR A WARRANT APPLIED FOR BY
ONE OF THEIR NUMBER.  (FN4)  WE CONCLUDE THAT THE AFFIDAVIT SHOWED
PROBABLE CAUSE AND THAT THE COURT OF APPEALS MISAPPREHENDED ITS
JUDICIAL FUNCTION IN REVIEWING THIS AFFIDAVIT BY GIVING IT AN UNDULY
TECHNICAL AND RESTRICTIVE READING. 

THIS COURT IS ALERT TO INVALIDATE UNCONSTITUTIONAL SEARCHES AND
SEIZURES WHETHER WITH OR WITHOUT A WARRANT.  SEE AGUILAR V. TEXAS,
SUPRA; STANFORD V. TEXAS, 379 U.S. 476; PRESTON V. UNITED STATES, 376
U.S. 364; BECK V. OHIO, 379 U.S. 89.  BY DOING SO, IT VINDICATES
INDIVIDUAL LIBERTIES AND STRENGTHENS THE ADMINISTRATION OF JUSTICE BY
PROMOTING RESPECT FOR LAW AND ORDER.  THIS COURT IS EQUALLY CONCERNED
TO UPHOLD THE ACTIONS OF LAW ENFORCEMENT OFFICERS CONSISTENTLY
FOLLOWING THE PROPER CONSTITUTIONAL COURSE.  THIS IS NO LESS IMPORTANT
TO THE ADMINISTRATION OF JUSTICE THAN THE INVALIDATION OF CONVICTIONS
BECAUSE OF DISREGARD OF INDIVIDUAL RIGHTS OR OFFICIAL OVERREACHING.  IN
OUR VIEW THE OFFICERS IN THIS CASE DID WHAT THE CONSTITUTION REQUIRES. 
THEY OBTAINED A WARRANT FROM A JUDICIAL OFFICER "UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE  ...  THINGS TO BE SEIZED."  IT IS VITAL THAT
HAVING DONE SO THEIR ACTIONS SHOULD BE SUSTAINED UNDER A SYSTEM OF
JUSTICE RESPONSIVE BOTH TO THE NEEDS OF INDIVIDUAL LIBERTY AND TO THE
RIGHTS OF THE COMMUNITY.  REVERSED. 

FN1  THE FOURTH AMENDMENT'S POLICY AGAINST UNREASONABLE SEARCHES AND
SEIZURES FINDS EXPRESSION IN RULE 41 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE. 

FN2  THE EXCEPTIONS ARE ILLUSTRATED BY CASES IN WHICH "SEIZURE IS
IMPOSSIBLE EXCEPT WITHOUT WARRANT," CARROLL V. UNITED STATES, 267 U.S.
132, 156, SUCH AS A SEARCH OF A MOVING OBJECT WHERE "IT IS NOT
PRACTICABLE TO SECURE A WARRANT BECAUSE THE VEHICLE CAN BE QUICKLY
MOVED OUT OF THE LOCALITY OR JURISDICTION IN WHICH THE WARRANT MUST BE
SOUGHT," CARROLL V. UNITED STATES, SUPRA, AT 153, AND THOSE IN WHICH
SEARCH IS INCIDENT TO A LAWFUL ARREST.  THIS LATTER EXCEPTION IS ITSELF
A LIMITED ONE.  WE STATED IN PRESTON V. UNITED STATES, 376 U.S. 364: 

"UNQUESTIONABLY, WHEN A PERSON IS LAWFULLY ARRESTED, THE POLICE HAVE
THE RIGHT, WITHOUT A SEARCH WARRANT, TO MAKE A CONTEMPORANEOUS SEARCH
OF THE PERSON OF THE ACCUSED FOR WEAPONS OR FOR THE FRUITS OF OR
IMPLEMENTS USED TO COMMIT THE CRIME.  WEEKS V. UNITED STATES, 232 U.S.
383, 392 (1914); AGNELLO V. UNITED STATES, 269 U.S. 20, 30 (1925). 
THIS RIGHT TO SEARCH AND SEIZE WITHOUT A SEARCH WARRANT EXTENDS TO
THINGS UNDER THE ACCUSED'S IMMEDIATE CONTROL, CARROLL V. UNITED STATES,
SUPRA, 267 U.S., AT 158, AND, TO AN EXTENT DEPENDING ON THE
CIRCUMSTANCES OF THE CASE, TO THE PLACE WHERE HE IS ARRESTED, AGNELLO
V. UNITED STATES, SUPRA, 269 U.S., AT 30; MARRON V. UNITED STATES, 275
U.S. 192, 199 (1927); UNITED STATES V. RABINOWITZ, 339 U.S. 56, 61-62
(1950).  THE RULE ALLOWING CONTEMPORANEOUS SEARCHES IS JUSTIFIED, FOR
EXAMPLE, BY THE NEED TO SEIZE WEAPONS AND OTHER THINGS WHICH MIGHT BE
USED TO ASSAULT AN OFFICER OR EFFECT AN ESCAPE, AS WELL AS BY THE NEED
TO PREVENT THE DESTRUCTION OF EVIDENCE OF THE CRIME - THINGS WHICH
MIGHT EASILY HAPPEN WHERE THE WEAPON OR EVIDENCE IS ON THE ACCUSED'S
PERSON OR UNDER HIS IMMEDIATE CONTROL.  BUT THESE JUSTIFICATIONS ARE
ABSENT WHERE A SEARCH IS REMOTE IN TIME OR PLACE FROM THE ARREST.  ONCE
AN ACCUSED IS UNDER ARREST AND IN CUSTODY, THEN A SEARCH MADE AT
ANOTHER PLACE, WITHOUT A WARRANT, IS SIMPLY NOT INCIDENT TO THE
ARREST."  376 U.S., AT 367. 

FN3 SEE, E.G., MONNETTE V. UNITED STATES, 299 F.2D 847, 850 (C.A. 5TH
CIR.).  CF.  CHAPMAN V. UNITED STATES, 365 U.S. 610; STEEBER V. UNITED
STATES, 198 F.2D 615, 616, 618 (C.A. 10TH CIR.); UNITED STATES V.
KAPLAN, 89 F.2D 869 (C.A.2D CIR.). 

FN4  SEE, E.G., RUGENDORF V. UNITED STATES, 376 U.S. 528; CHIN KAY V.
UNITED STATES, 311 F.2D 317, 320 (C.A. 9TH CIR.); UNITED STATES V.
MCCORMICK, 309 F.2D 367, 372 (C.A. 7TH CIR.); WEISE V. UNITED STATES,
251 F.2D 867, 868 (C.A. 9TH CIR.).

      APPENDIX TO OPINION OF THE COURT

       AFFIDAVIT FOR SEARCH WARRANT 

BEFORE W. ARTHUR GARRITY, WORCESTER, MASSACHUSETTS THE UNDERSIGNED
BEING DULY SWORN DEPOSES AND SAYS: 

THAT HE HAS REASON TO BELIEVE THAT ON THE PREMISES KNOWN AS A ONE
FAMILY LIGHT GREEN WOODEN FRAME DWELLING HOUSE LOCATED AT 148 1/2
COBURN AVENUE, WORCESTER, OCCUPIED BY GIACOMO VENTRESCA AND HIS FAMILY,
TOGETHER WITH ALL APPROACHES AND APPURTENANCES THERETO, IN THE DISTRICT
OF MASSACHUSETTS, THERE IS NOW BEING CONCEALED CERTAIN PROPERTY, NAMELY
AN UNKNOWN QUANTITY OF MATERIAL AND CERTAIN APPARATUS, ARTICLES AND
DEVICES, INCLUDING A STILL AND DISTILLING APPARATUS SETUP WITH ALL
ATTACHMENTS THERETO, TOGETHER WITH AN UNKNOWN QUANTITY OF MASH, AN
UNKNOWN QUANTITY OF DISTILLED SPIRITS, AND OTHER MATERIAL USED IN THE
MANUFACTURE OF NON-TAX-PAID LIQUORS; WHICH ARE BEING HELD AND
POSSESSED, AND WHICH HAVE BEEN USED AND ARE INTENDED FOR USE, IN THE
DISTILLATION, MANUFACTURE, POSSESSION, AND DISTRIBUTION OF NON-TAX-PAID
LIQUORS, IN VIOLATION OF THE PROVISIONS OF 26 U.S.C. 5171(A), 5173,
5178, 5179(A), 5222(A), 5602, AND 5686. 

AND THAT THE FACTS TENDING TO ESTABLISH THE FOREGOING GROUNDS FOR
ISSUANCE OF A SEARCH WARRANT ARE AS FOLLOWS: 

SEE ATTACHED SHEET. 

             /S/ WALTER A. MAZAKA

                 INVESTIGATOR, ALCOHOL AND

   TOBACCO TAX DIV., INTERNAL

                 REVENUE SERVICE 

SWORN TO BEFORE ME, AND SUBSCRIBED IN MY PRESENCE, AUGUST 31ST,
1961. 

             /S/ W. ARTHUR GARRITY

                UNITED STATES COMMISSIONER 

BASED UPON OBSERVATIONS MADE BY ME, AND BASED UPON INFORMATION
RECEIVED OFFICIALLY FROM OTHER INVESTIGATORS ATTACHED TO THE ALCOHOL
AND TOBACCO TAX DIVISION ASSIGNED TO THIS INVESTIGATION, AND REPORTS
ORALLY MADE TO ME DESCRIBING THE RESULTS OF THEIR OBSERVATIONS AND
INVESTIGATION, THIS REQUEST FOR THE ISSUANCE OF A SEARCH WARRANT IS
MADE. 

ON OR ABOUT JULY 28, 1961, ABOUT 6:45 P.M., AN OBSERVATION WAS MADE
COVERING A PONTIAC AUTOMOBILE OWNED BY ONE JOSEPH GARRY.  GARRY AND ONE
JOSEPH INCARDONE PUT THIRTEEN BAGS OF SUGAR INTO THE CAR.  THESE BAGS
OF SUGAR WEIGHED SIXTY POUNDS EACH.  TEN SUCH BAGS WERE PUT INTO THE
TRUNK, AND THREE WERE PLACED IN THE REAR SEAT.  THOSE IN THE REAR SEAT
WERE MARKED "DOMINO."  THE OTHERS APPEARED TO HAVE SIMILAR MARKINGS. 
AFTER THE SUGAR WAS LOADED INTO THE CAR, GARRY TOGETHER WITH INCARDONE
DROVE IT TO THE VICINITY OF 148 COBURN AVENUE, WORCESTER,
MASSACHUSETTS, WHERE THE CAR WAS PARKED.  SOMETIME LATER, THE CAR WITH
ITS CONTENTS WAS DRIVEN INTO THE YARD TO THE REAR OF 148 AND BETWEEN
THE PREMISES 148 AND 148 1/2 COBURN AVENUE.  AFTER REMAINING THERE
ABOUT TWENTY-FIVE MINUTES, THE SAME TWO MEN DROVE IN THE DIRECTION OF
BOSTON. 

ON AUGUST 2, 1961 A PONTIAC CAR OWNED BY GARRY, AND DRIVEN BY GARRY
WITH INCARDONE AS A PASSENGER, WAS FOLLOWED FROM BOSTON TO WORCESTER. 
THE CAR APPEARED HEAVILY LADEN.  THE CAR WAS AGAIN DRIVEN INTO THE
DRIVEWAY AT 148 AND 148 1/2 COBURN AVENUE TO THE REAR OF THE YARD AND
BETWEEN THE ABOVE-NUMBERED HOUSES. 

ON AUGUST 7, 1961 AT LEAST SIX SIXTY-POUND BAGS OF DOMINO SUGAR WERE
LOADED INTO THE PONTIAC OWNED BY GARRY.  THE LOADING WAS DONE BY GARRY
AND INCARDONE.  THE CAR TRAVELED FROM BOSTON TO WORCESTER, THEN TO
HOLDEN, AND RETURNED WITH ITS CONTENTS AND ENTERED THE DRIVEWAY AT 148
AND 148 1/2 COBURN AVENUE, WHERE THE CAR WAS PARKED AT THE REAR BETWEEN
THE TWO HOUSES. 

ON AUGUST 11, 1961 NEW EMPTY METAL OR TIN CANS WERE TRANSFERRED FROM
A CAR OWNED BY INCARDONE TO THE PONTIAC OWNED BY GARRY ON HIGHLAND
STREET IN HYDE PARK.  THE PONTIAC WAS DRIVEN BY GARRY WITH INCARDONE AS
A PASSENGER TO WORCESTER, AND INTO THE YARD AT 148 AND 148 1/2 COBURN
AVENUE TO THE REAR AND BETWEEN THE TWO NUMBERED PREMISES. 

ON AUGUST 16, 1961 THE PONTIAC WAS OBSERVED.  IN THE BACK SEAT BAGS
OF SUGAR WERE OBSERVED COVERED WITH A CLOTH OR TARPAULIN.  A SIXTY
POUND BAG OF SUGAR WAS ON THE FRONT SEAT.  GARRY WAS OBSERVED AFTER
LOADING THE ABOVE-DESCRIBED SUGAR INTO THE CAR PLACING A CARTON WITH
VARIOUS FIVE-POUND BAGS OF SUGAR ON THE TOP OF THE TARPAULIN.  THE CAR
WAS THEN DRIVEN BY GARRY WITH INCARDONE AS A PASSENGER TO WORCESTER
TOGETHER WITH ITS CONTENTS INTO THE YARD AT 148 AND 148 1/2 COBURN
AVENUE TO THE REAR OF AND BETWEEN THE TWO HOUSES.  ABOUT MIDNIGHT ON
THE SAME NIGHT, THE PONTIAC DRIVEN BY GARRY WITH INCARDONE AS A
PASSENGER WAS SEEN PULLING UP TO THE PREMISES AT 59 HIGHLAND STREET,
HYDE PARK, WHERE GARRY LIVES.  GARRY OPENED THE TRUNK OF HIS CAR, AND
REMOVED TEN FIVE-GALLON CANS THEREFROM, AND PLACED THEM ON THE
SIDEWALK.  HE THEN ENTERED THE HOUSE, AND OPENED A DOOR ON THE SIDE. 
INCARDONE MADE FIVE TRIPS FROM THE SIDEWALK TO THE SIDE OF THE HOUSE
CARRYING TWO FIVE-GALLON CANS ON EACH SUCH TRIP.  IT APPEARED THAT THE
CANS WERE FILLED.  ON EACH OF THESE TRIPS, INCARDONE PASSED THE TWO
CANS TO SOMEONE STANDING IN THE DOORWAY.  IMMEDIATELY AFTER THE FIFTH
SUCH TRIP, GARRY CAME OUT OF THE DOOR AND JOINED INCARDONE.  THEY
WALKED TO THE SIDEWALK, AND TALKED FOR A FEW MOMENTS.  INCARDONE THEN
DROVE AWAY, AND GARRY WENT INTO HIS HOME. 

ON AUGUST 18, 1961 INVESTIGATORS SMELLED AN ODOR OF FERMENTING MASH
ON TWO OCCASIONS BETWEEN 4:00 A.M. AND 5:00 A.M.  THE FIRST SUCH ODOR
WAS DETECTED AS THEY WALKED ALONG THE SIDEWALK IN FRONT OF 148 COBURN
AVENUE, AND THE SECOND SUCH ODOR WAS DETECTED FROM THE SIDE OF 148
COBURN AVENUE.  AT OR ABOUT THE SAME TIME, THE INVESTIGATORS HEARD
CERTAIN METALLIC NOISES WHICH CANNOT BE FURTHER IDENTIFIED BY SOURCE OR
SOUND. 

ON AUGUST 24, 1961 THE PONTIAC WAS OBSERVED PARKED AT A BOWLING ALLEY
AND COFFEE SHOP OFF ROUTE 9.   THE BACK OF THE CAR CONTAINED WHAT
APPEARED TO BE BOXES COVERED BY A CLOTH OR TARPAULIN, BUT WHICH CANNOT
BE MORE SPECIFICALLY IDENTIFIED.  ON THE FRONT SEAT OF THE CAR WAS
OBSERVED A SIXTY-POUND BAG OF REVERE SUGAR.  GARRY AND INCARDONE WERE
OBSERVED IN THE RESTAURANT OR COFFEE SHOP EATING.  LATER THE CAR WAS
SEEN DRIVEN TO THE REAR OF 148 BETWEEN 148 AND 148 1/2 COBURN AVENUE,
WORCESTER. 

ABOUT MIDNIGHT THE PONTIAC WAS OBSERVED PULLING UP IN FRONT OF
GARRY'S HOUSE AT 59 HIGHLAND STREET, HYDE PARK.  GARRY WAS DRIVING, AND
INCARDONE WAS A PASSENGER.  THEY BOTH GOT OUT OF THE CAR.   GARRY
OPENED THE TRUNK, AND THEN ENTERED HIS HOUSE.  FROM THE TRUNK OF THE
CAR THERE WAS REMOVED ELEVEN FIVE-GALLON CANS WHICH APPEARED TO BE
FILLED.  INCARDONE MADE SIX TRIPS TO A DOOR ON THE SIDE OF THE HOUSE. 
HE CARRIED TWO FIVE-GALLON CANS ON EACH TRIP, EXCEPT THE SIXTH TRIP. 
ON THAT TRIP HE CARRIED ONE CAN, HAVING PASSED THE OTHERS TO SOMEBODY
IN THE DOORWAY, AND ON THE LAST TRIP HE ENTERED THE HOUSE.  HE REMAINED
THERE AT LEAST FORTY-FIVE MINUTES, AND WAS NOT OBSERVED TO LEAVE. 

ON AUGUST 28, 1961 GARRY DROVE INCARDONE IN HIS CAR TO WORCESTER.  ON
LAKE AVE. THEY MET GIACOMO VENTRESCA, WHO LIVES AT 148 1/2 COBURN
AVENUE, WORCESTER.  VENTRESCA ENTERED THE CAR DRIVEN BY GARRY.  THE CAR
WAS THEN DRIVEN INTO THE YARD TO THE REAR OF 148 AND BETWEEN 148 AND
148 1/2 COBURN AVENUE.  AN OBSERVATION WAS MADE THAT EMPTY METAL CANS,
FIVE-GALLON SIZE, WERE BEING TAKEN FROM THE CAR OWNED BY GARRY, AND
BROUGHT INTO THE PREMISES AT 148 1/2 COBURN AVENUE, WHICH WAS OCCUPIED
BY VENTRESCA.  LATER, NEW CANS SIMILAR IN SIZE, SHAPE AND APPEARANCE
WERE OBSERVED BEING PLACED INTO THE TRUNK OF GARRY'S CAR WHILE PARKED
AT THE REAR OF 148 AND IN FRONT OF 148 1/2 COBURN AVENUE.  THE MANNER
IN WHICH THE CANS WERE HANDLED, AND THE SOUNDS WHICH WERE HEARD DURING
THE HANDLING OF THESE CANS, WERE CONSISTENT WITH THAT OF CANS
CONTAINING LIQUID. 

ON AUGUST 30, 1961, AT ABOUT 4:00 A.M., AN ODOR OF FERMENTING MASH
WAS DETECTED WHILE INVESTIGATORS WERE WALKING ON THE SIDEWALK IN FRONT
OF 148 COBURN AVENUE.  AT THE SAME TIME, THEY HEARD SOUNDS SIMILAR TO
THAT OF A MOTOR OR A PUMP COMING FROM THE DIRECTION OF 148 1/2 COBURN
AVENUE. 

THE FOREGOING INFORMATION IS BASED UPON PERSONAL KNOWLEDGE AND
INFORMATION WHICH HAS BEEN OBTAINED FROM INVESTIGATORS OF THE ALCOHOL
AND TOBACCO TAX DIVISION, INTERNAL REVENUE SERVICE, WHO HAVE BEEN
ASSIGNED TO THIS INVESTIGATION. 

                    /S/ WALTER A. MAZAKA 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

WITH ALL DEFERENCE, THE PRESENT AFFIDAVIT SEEMS HOPELESSLY INADEQUATE
TO ME AS A BASIS FOR A MAGISTRATE'S INFORMED DETERMINATION THAT A
SEARCH WARRANT SHOULD ISSUE. 

WE DEAL WITH THE CONSTITUTIONAL RIGHT OF PRIVACY THAT CAN BE INVADED
ONLY ON A SHOWING OF "PROBABLE CAUSE" AS PROVIDED BY THE FOURTH
AMENDMENT.  THAT IS A STRICT STANDARD; WHAT THE POLICE SAY DOES NOT
NECESSARILY CARRY THE DAY; "PROBABLE CAUSE" IS IN THE KEEPING OF THE
MAGISTRATE.  GIORDENELLO V. UNITED STATES, 357 U.S. 480, 486-487;
JOHNSON V. UNITED STATES, 333 U.S. 10, 14.  YET ANYTHING HE SAYS DOES
NOT NECESSARILY GO EITHER.  HE TOO IS BOUND BY THE CONSTITUTION.  HIS
DISCRETION IS REVIEWABLE.  AGUILAR V. TEXAS, 378 U.S. 108, 111.  BUT
UNLESS THE CONSTITUTIONAL STANDARD OF "PROBABLE CAUSE" IS DEFINED IN
METICULOUS WAYS, THE DISCRETION OF POLICE AND OF MAGISTRATES ALIKE WILL
BECOME ABSOLUTE.  THE PRESENT CASE, ILLUSTRATES HOW THE MERE WEIGHT OF
LENGTHY AND VAGUE RECITALS TAKES THE PLACE OF REASONABLY PROBATIVE
EVIDENCE OF THE EXISTENCE OF CRIME. 
       I. 

INVESTIGATOR MAZAKA SOUGHT A WARRANT FOR THE PURPOSE OF SEARCHING THE
PREMISES AT 148 1/2 COBURN AVENUE, OCCUPIED BY RESPONDENT AND HIS
FAMILY, BECAUSE, HE AVERRED, HE HAD REASON TO BELIEVE THAT THERE WAS
CONCEALED ON THE PREMISES AN ILLEGAL STILL AND OTHER MATERIAL CONNECTED
WITH THE MANUFACTURE OF NONTAX-PAID LIQUORS.  THE GROUNDS FOR THIS
BELIEF WERE RECITED IN 12 PARAGRAPHS ON AN ATTACHED SHEET, AS
REPRODUCED IN THE APPENDIX TO THE COURT'S OPINION, ANTE, P. 112. 

THE FACTUAL RECITALS COMPRISE 10 PARAGRAPHS, EACH PARAGRAPH SETTING
FORTH THE ALLEGED EVENTS OF A SINGLE DAY, EXCEPT THAT AUGUST 24, 1961,
IS DEALT WITH IN TWO PARAGRAPHS.  OF THESE FACTUAL RECITALS MORE WILL
BE SAID IN A MOMENT.  THE FIRST AND LAST PARAGRAPHS OF THE 12 DESCRIBE
THE SOURCES FROM WHICH THE AFFIANT HAS GAINED THE INFORMATION SET FORTH
IN THE FACTUAL PARAGRAPHS.  THESE SOURCES ARE, ACCORDING TO THE FIRST
PARAGRAPH, THREE IN NUMBER:  (1) "OBSERVATIONS MADE BY ME"; (2)
"INFORMATION RECEIVED OFFICIALLY FROM OTHER INVESTIGATORS"; AND (3)
"REPORTS ORALLY MADE TO ME BY OTHER INVESTIGATORS DESCRIBING THE
RESULTS OF THEIR OBSERVATIONS AND INVESTIGATION."  IN THE LAST
PARAGRAPH THE AFFIANT DESCRIBES THE SOURCES OF HIS INFORMATION SLIGHTLY
DIFFERENTLY:  "THE FOREGOING INFORMATION IS BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION WHICH HAS BEEN OBTAINED FROM INVESTIGATORS
...  ." 

OF THE 10 FACTUAL PARAGRAPHS EIGHT DESCRIBE TRIPS SAID TO HAVE BEEN
MADE TO AND FROM THE VICINITY OF 148 1/2 COBURN AVENUE BY ONE GARRY AND
ONE INCARDONE.  ON THESE TRIPS, IT IS DAID, THERE WERE DELIVERED TO THE
VICINITY OF 148 1/2 COBURN AVENUE LARGE QUANTITIES OF SUGAR (FOUR
DELIVERIES) AND EMPTY METAL CANS (TWO DELIVERIES, ON ONE OF WHICH
RESPONDENT HIMSELF IS SAID TO HAVE BEEN A PASSENGER IN THE CAR); ON ONE
OCCASION IT WAS OBSERVED ONLY THAT THE CAR WAS "HEAVILY LADEN."  IT IS
SAID THAT ON TWO OCCASIONS GARRY AND INCARDONE WERE SEEN TAKING
APPARENTLY FILLED CANS INTO GARRY'S HOUSE 59 HIGHLAND STREET, FROM THE
PONTIAC,; ON ONE SUCH OCCASION THE PONTIAC, IT IS SAID, HAD BEEN AT
COBURN AVENUE EARLIER IN THE DAY, APPARENTLY MAKING A SUGAR DELIVERY. 
AND, FINALLY, IT IS AVERRED THAT ON ONE OCCASION SEEMINGLY FILLED CANS
WERE LOADED INTO THE PONTIAC NEAR 148 1/2 COBURN AVENUE SHORTLY AFTER A
DELIVERY OF EMPTIES TO THAT ADDRESS. 

THE "FACTS" RECITED IN THESE EIGHT PARAGRAPHS, IT IS SAID, PERMIT THE
INFERENCE THAT A STILL WAS BEING OPERATED ON RESPONDENT'S PREMISES. 
BUT ARE THESE "FACTS" REALLY FACTS?  A STATEMENT OF "FACT" IS ONLY AS
CREDIBLE AS ITS SOURCE.  INVESTIGATOR MAZAKA EVIDENTLY BELIEVES THESE
STATEMENTS TO BE CORRECT; BUT THE MAGISTRATE MUST, OF COURSE, KNOW
SOMETHING OF THE BASIS OF THAT BELIEF.  NATHANSON V. UNITED STATES, 290
U.S. 41.  IS THE BELIEF OF THIS AFFIANT BASED ON PERSONAL OBSERVATION,
OR ON HEARSAY, OR ON HEARSAY ON HEARSAY?  NOWHERE IN THE AFFIDAVIT IS
THE SOURCE OF THESE EIGHT PARAGRAPHS OF INFORMATION REVEALED.  IN EACH
PARAGRAPH THE ALLEGED EVENTS ARE SIMPLY DESCRIBED DIRECTLY, OR ELSE IT
IS SAID THAT CERTAIN EVENTS "WERE OBSERVED."  SCARCELY A CLUE IS GIVEN
AS TO WHO THE OBSERVER MIGHT HAVE BEEN.  IT MIGHT HAVE BEEN THE
AFFIANT, THOUGH ONE WOULD NOT EXPECT THAT HE WOULD SO STUDIOUSLY
REFRAIN FROM REVEALING THAT HE HIMSELF WITNESSED THESE EVENTS.  THE
OBSERVERS MIGHT HAVE BEEN SOME OTHER INVESTIGATORS, THOUGH THE AFFIANT
DOES NOT SAY SO; YET IN THE TWO PARAGRAPHS NEXT TO BE DISCUSSED THE
OBSERVERS ARE PROMINENTLY IDENTIFIED AS INVESTIGATORS.  PERHAPS THE
ULTIMATE SOURCE OF MOST OF THESE STATEMENTS WAS ONE OR MORE PRIVATE
CITIZENS, WHO WERE INTERVIEWED BY INVESTIGATORS, WHOSE REPORTS ON THESE
INTERVIEWS CAME IN DUE COURSE TO INVESTIGATOR MAZAKA, WHO THEN COMPOSED
THE AFFIDAVIT.  PERHAPS MANY OF THE "FACTS" RECITED IN THE AFFIDAVIT
WERE SUPPLIED BY AN UNKNOWN INFORMANT OVER THE TELEPHONE. 

IN MOST INSTANCES THE LANGUAGE OF THE AFFIDAVIT SUGGESTS THAT SOME
INVESTIGATOR WITNESSED THE ALLEGED EVENTS.  FOR EXAMPLE, THE SECOND
PARAGRAPH BEGINS:  "ON OR ABOUT JULY 28, 1961, ABOUT 6:45 P.M., AN
OBSERVATION WAS MADE COVERING A PONTIAC AUTOMOBILE OWNED BY ONE JOSEPH
GARRY."  BUT THE PRESUMED INVESTIGATOR WHO MAY HAVE BEEN "COVERING"
THIS AUTOMOBILE IS IN NOW WAY IDENTIFIED.  THERE IS NO WAY OF KNOWING
WHETHER THE REPORT OF THIS ALLEGED OBSERVATION WAS MADE DIRECTLY TO THE
AFFIANT OR WHETHER IT WENT THROUGH ONE OR MORE INTERMEDIARIES. 

TURNING NOW TO THE REMAINING TWO "FACTUAL" PARAGRAPHS, WE FIND IT
AVERRED THAT "INVESTIGATORS" SMELLED FERMENTING MASH AND HEARD METALLIC
AND OTHER NOISES IN THE VICINITY OF 148 1/2 COBURN AVENUE.  ON AUGUST
18, IT IS SAID, INVESTIGATORS TWICE SMELLED MASH BETWEEN 4 AND 5 A.M.
AS THEY WALKED ON THE SIDEWALK IN FRONT OF AND BESIDE THE HOUSE AT 148
COBURN AVENUE, WHICH IS APPARENTLY THE HOUSE NEXT TO RESPONDENT'S.  THE
"INVESTIGATORS" ARE NOT FURTHER IDENTIFIED.  ON AUGUST 30 AT ABOUT 4
A.M., IT IS AVERRED, UNIDENTIFIED INVESTIGATORS DETECTED THE ODOR OF
FERMENTING MASH WHILE THEY WERE "WALKING ON THE SIDEWALK IN FRONT OF
148 COBURN AVENUE."  THE SOURCE OF THE ODOR IS AGAIN NOT SPECIFIED; BUT
SOUNDS HEARD AT THE SAME TIME, SIMILAR TO THE SOUNDS MADE BY "A MOTOR
OR A PUMP," ARE STATED TO HAVE COME "FROM THE DIRECTION OF 148 1/2
COBURN AVENUE." 

SUCH IS THE SUBSTANCE OF THE AFFIDAVIT.  NO PARTICULAR ITEM OF
INFORMATION IS IDENTIFIED AS WITHIN THE FIRST-HAND KNOWLEDGE OF THE
AFFIANT.  CERTAIN SMELLS AND SOUNDS ARE EXPLICITLY DESCRIBED AS HAVING
BEEN DIRECTLY PERCEIVED BY UNNAMED INVESTIGATORS.  THE SOURCES OF ALL
THE OTHER INFORMATION ARE LEFT TO SPECULATION. 

THE COURT'S UNCONCERN OVER THE FAILURE OF THE AFFIDAVIT TO IDENTIFY
THE SOURCES OF THE INFORMATION RECITED SEEMS BASED IN PART ON THE
DETAILED, LENGTHY NATURE OF THE FACTUAL RECITALS.  THE COURT SEEMS TO
SAY THAT EVEN IF WE ASSUME THAT ONLY SOME SMALL PART OF THE INFORMATION
IS TRUSTWORTHY, STILL ENOUGH REMAINS TO ESTABLISH PROBABLE CAUSE.  BUT
I WOULD DIRECT ATTENTION TO THE FACT THAT ONLY ONE OF THE 12 PARAGRAPHS
IN THIS AFFIDAVIT DEFINITELY POINTS THE FINGER OF SUSPICION AT 148 1/2
COBURN AVENUE:  THAT IS THE PARAGRAPH DESCRIBING THE ALLEGED EVENTS OF
AUGUST 28, 1961.  IN EVERY OTHER PARAGRAPH THE RECITALS POINT NO MORE
TO 148 1/2 COBURN AVENUE THAN THEY DO TO 148 COBURN AVENUE.  THE AUGUST
28 PARAGRAPH IS CRITICAL TO THE FINDING OF THE EXISTENCE OF PROBABLE
CAUSE FOR THE SEARCH OF 148 1/2 COBURN AVENUE.  YET THE SOURCE OF THE
INFORMATION CONTAINED IN THAT PARAGRAPH IS IN NO WAY IDENTIFIED AND IT
IS THEREFORE IMPOSSIBLE TO DETERMINE THE TRUSTWORTHINESS OF THAT
CRUCIAL INFORMATION. 

                                          II. 

A DISCUSSION OF THE LEGAL PRINCIPLES GOVERNING THE SUFFICIENCY OF THIS
AFFIDAVIT MUST, UNHAPPILY, BEGIN WITH DRAPER V. UNITED STATES, 358 U.S.
307.  THERE AN OFFICER HAD BEEN TOLD BY AN INFORMER, KNOWN TO THE
OFFICER TO BE RELIABLE, THAT A MAN OF A CERTAIN DESCRIPTION WOULD GET
OFF A CERTAIN TRAIN WITH HEROIN IN HIS POSSESSION.  THE OFFICER MET THE
TRAIN, OBSERVED A MAN OF THAT DESCRIPTION GETTING OFF, AND ARRESTED
HIM.  THE COURT HELD THAT THERE WAS PROBABLE CAUSE FOR THE ARREST.  IN
JONES V. UNITED STATES, 362 U.S. 257, THE COURT APPLIED THE HOLDING IN
DRAPER TO FIND AN AFFIDAVIT SUFFICIENT TO ESTABLISH PROBABLE CAUSE FOR
THE ISSUANCE OF A SEARCH WARRANT, EVEN THOUGH THE FACTS STATED IN THE
AFFIDAVIT DID NOT REST ON THE AFFIANT'S PERSONAL OBSERVATIONS BUT
RATHER ON THE OBSERVATIONS OF ANOTHER.  THE COURT HELD THAT AN
AFFIDAVIT COULD REST ON HEARSAY, "SO LONG AS A SUBSTANTIAL BASIS FOR
CREDITING THE HEARSAY IS PRESENTED."  ID., AT 269.  IN JONES THE BASIS
FOR CREDITING THE INFORMANT'S HEARSAY WAS:  (1) THE AFFIANT SWORE THAT
THE INFORMANT HAD PREVIOUSLY GIVEN INFORMATION TO HIM WHICH WAS
CORRECT; (2) THE AFFIANT HAD BEEN GIVEN CORROBORATING INFORMATION BY
OTHER INFORMANTS; AND (3) THE AFFIANT WAS INDEPENDENTLY FAMILIAR WITH
THE PERSONS CLAIMED BY THE INFORMANTS TO BE CONCEALING NARCOTICS IN
THEIR APARTMENT, AND HE KNEW THEM TO HAVE ADMITTED TO THE USE OF
NARCOTICS. 

I DISSENTED FROM THE DECISIONS OF THE COURT IN THESE TWO CASES, FOR
THE REASONS WHICH I SET FORTH MOST FULLY IN DRAPER, SUPRA, AT 314 ET
SEQ. BUT THOUGH I REGARD THESE DECISIONS* AS TAKING A VIEW DESTRUCTIVE
OF THE GUARANTEES OF THE FOURTH AMENDMENT, THEY ARE IN ANY EVENT
CLEARLY NOT DISPOSITIVE OF THE PRESENT CASE.  AS I HAVE ALREADY SHOWN,
THE AFFIDAVIT HERE DOES NOT SET FORTH A SINGLE CORROBORATING FACT THAT
IS SWORN TO BE WITHIN THE PERSONAL KNOWLEDGE OF THE AFFIANT.  MOREOVER,
THERE IS NOT A SINGLE STATEMENT IN THE AFFIDAVIT THAT COULD NOT WELL BE
HEARSAY ON HEARSAY OR SOME OTHER MULTIPLE FORM OF HEARSAY. 

*IN THESE CASES WE MIGHT HAVE DRAWN A CLEAR, UNMISTAKABLE LINE AND
HELD THAT HEARSAY EVIDENCE COULD NOT SUPPORT A SEARCH WARRANT.  BUT WE
DID NOT SO HOLD; INSTEAD WE HELD THAT HEARSAY WAS COMPETENT FOR THIS
PURPOSE IF THERE WAS "A SUBSTANTIAL BASIS" FOR CREDITING IT, THEREBY
MUDDYING THE WATERS WITH CONSIDERATIONS OF CORROBORATION AND INFORMER'S
RELIABILITY.  THUS, BY FORSAKING PRECISE STANDARDS, THE DISCRETION OF
POLICE AND MAGISTRATES BECAME LESS SUBJECT TO JUDICIAL CONTROL. 

WE ARE TOLD, HOWEVER, THAT IT IS AT LEAST CLEAR THAT "INVESTIGATORS"
DETECTED THE SMELL OF MASH IN THE VICINITY OF 148 1/2 COBURN AVENUE. 
AND THE COURT SAYS:  "OBSERVATIONS OF FELLOW OFFICERS OF THE GOVERNMENT
ENGAGED IN A COMMON INVESTIGATION ARE PLAINLY A RELIABLE BASIS FOR A
WARRANT APPLIED FOR ONE OF THEIR NUMBER," ANTE, P. 111.  BUT I WOULD
MAKE TAYLOR V. UNITED STATES, 286 U.S. 1, 6, MY STARTING POINT, WHERE
THE COURT STATED:  "PROHIBITION OFFICERS MAY RELY ON A DISTINCTIVE ODOR
AS A PHYSICAL FACT INDICATIVE OF POSSIBLE CRIME; BUT ITS PRESENCE ALONE
DOES NOT STRIP THE OWNER OF A BUILDING OF CONSTITUTIONAL GUARANTEES
AGAINST UNREASONABLE SEARCH."  IN JOHNSON V. UNITED STATES, 333 U.S.
10, 13, THE COURT EXPLAINED WHAT THE DECISION IN TAYLOR MEANT:  "THAT
DECISION HELD ONLY THAT ODORS ALONE DO NOT AUTHORIZE A SEARCH WITHOUT
WARRANT.  IF THE PRESENCE OF ODORS IS TESTIFIED TO BEFORE A MAGISTRATE
AND HE FINDS THE AFFIANT QUALIFIED TO KNOW THE ODOR, AND IT IS ONE
SUFFICIENTLY DISTINCTIVE TO IDENTIFY A FORBIDDEN SUBSTANCE, THIS COURT
HAS NEVER HELD SUCH A BASIS INSUFFICIENT TO JUSTIFY ISSUANCE OF A
SEARCH WARRANT."  IT IS HARDLY NECESSARY TO POINT OUT THAT A MAGISTRATE
CANNOT BEGIN TO ASSESS THE ODOR-IDENTIFYING QUALIFICATIONS OF PERSONS
WHOSE IDENTITY IS UNKNOWN TO HIM.  NOR IS IT NECESSARY TO BELABOR THE
POINT THAT THESE ODORS OF MASH ARE NOT EVER STATED IN THE AFFIDAVIT TO
HAVE EMANATED FROM 148 1/2 COBURN AVENUE. 

               III. 

THE COURT OF APPEALS WAS SURELY CORRECT WHEN IT OBSERVED THAT "THE
AFFIDAVIT LEAVES AS A COMPLETE MYSTERY THE MANNER IN WHICH THE
INVESTIGATORS DISCOVERED THEIR INFORMATION."  324 F.2D 864, 869.  SUCH
BEING THE CASE, I SEE NO WAY TO AVOID THE CONCLUSION OF THE MAJORITY
BELOW:  "IF HEARSAY EVIDENCE IS TO BE RELIED UPON IN THE PREPARATION OF
AN AFFIDAVIT FOR A SEARCH WARRANT, THE OFFICER OR ATTORNEY PREPARING
SUCH AN AFFIDAVIT SHOULD KEEP IN MIND THAT HEARSAY STATEMENTS ARE ONLY
AS CREDIBLE AS THEIR SOURCE AND ONLY AS STRONG AS THEIR CORROBORATION. 
AND WHERE THE SOURCE OF THE INFORMATION IS IN DOUBT AND THE
CORROBORATION BY THE AFFIANT IS UNCLEAR, THE AFFIDAVIT IS
INSUFFICIENT."  ID., AT 869-870.  THAT CONCLUSION STATES A RELATIVELY
CLEAR STANDARD OF PROBABLE CAUSE AND IS IN SHARP CONTRAST TO THE
AMORPHOUS ONE UPON WHICH TODAY'S DECISION RESTS. 

IN JONES V. UNITED STATES, SUPRA, THIS COURT FORGOT, AS IT FORGETS
AGAIN TODAY, THAT THE DUTY OF THE MAGISTRATE IS NOT DELEGABLE TO THE
POLICE.  NATHANSON V. UNITED STATES, 290 U.S. 41.  IT IS FOR THE
MAGISTRATE, NOT THE POLICE, TO DECIDE WHETHER THERE IS PROBABLE CAUSE
FOR THE ISSUANCE OF THE WARRANT.  THAT FUNCTION CANNOT BE DISCHARGED BY
THE MAGISTRATE UNLESS THE POLICE FIRST DISCHARGE THEIR OWN, DIFFERENT
RESPONSIBILITY: "TO EVIDENCE WHAT IS RELIABLE AND WHY, AND NOT TO
INTRODUCE A HODGE-PODGE UNDER SOME GENERAL FORMALISTIC COVERALL."  324
F.2D, AT 870.  AND SEE MASIELLO V. UNITED STATES, 304 F.2D 399, 401
402.  THAT IS THE DUTY OF THE POLICE - THE REST IS NOT FOR THEM. 

I WOULD AFFIRM THE DECISION BELOW. 
..END :









IN RE RYAN 380 U.S. 124 


NO. 748.  DECIDED MARCH 1, 1965.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


IN RE RYAN. 

APPEAL FROM THE SUPREME COURT OF HAWAII. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION. 
..END :
















MASON V. MIDWESTERN GAS TRANSMISSION CO. 380 U.S. 124 


NO. 759.  DECIDED MARCH 1, 1965.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  31 ILL. 2D 340, 201 N.E.2D 379. 


MASON ET UX. V. MIDWESTERN GAS TRANSMISSION CO. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A
WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CITY OF CORONADO V. SAN DIEGO UNIFIED PORT DISTRICT 380 U.S. 125 


NO. 763.  DECIDED MARCH 1, 1965.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  227 CAL. APP. 2D 455,
38 CAL. RPTR.  834. 


CITY OF CORONADO ET AL. V. SAN DIEGO UNIFIED PORT DISTRICT ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















DRUEDING V. DEVLIN 380 U.S. 125 


NO. 772.  DECIDED MARCH 1, 1965.  - 234 F. SUPP. 721, AFFIRMED. 


DRUEDING ET AL. V. DEVLIN ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 
..END :


















MADDOX V. BIRZGALIS, STATE HOSPITAL SUPERINTENDENT 380 U.S. 126 


NO. 653, MISC.  DECIDED MARCH 1, 1965.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MADDOX V. BIRZGALIS, STATE HOSPITAL SUPERINTENDENT. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A
WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BONANNO V. LOUISIANA 380 U.S. 126 


NO. 728, MISC.  DECIDED MARCH 1, 1965.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  245 LA. 1117, 163 SO.
2D 72. 


BONANNO V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















BLAAUW V. GRAND TRUNK WESTERN RAILROAD CO. 380 U.S. 127 


NO. 740.  DECIDED MARCH 1, 1965.  - CERTIORARI GRANTED, JUDGMENT VACATED
AND CASE REMANDED.  - REPORTED BELOW:  333 F.2D 540. 


BLAAUW ET AL. V. GRAND TRUNK WESTERN RAILROAD CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT FOR RECONSIDERATION IN LIGHT OF THE OPINION OF
THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, IN AMERICAN NATIONAL
BANK & TRUST CO. V. PENNSYLVANIA R. CO., 52 ILL. APP. 2D 406, 202
N.E.2D 79. 
..END :












TEXAS V. NEW JERSEY 379 U.S. 674 


NO. 13, ORIGINAL.  ARGUED NOVEMBER 9, 1964 - DECIDED FEBRUARY 1, 1965. 


JURISDICTION TO ESCHEAT ABANDONED INTANGIBLE PERSONAL PROPERTY LIES IN
THE STATE OF THE CREDITOR'S LAST KNOWN ADDRESS ON THE DEBTOR'S BOOKS
AND RECORDS OR, ABSENT SUCH ADDRESS OR AN ESCHEAT LAW, IN THE STATE OF
CORPORATE DOMICILE - BUT SUBJECT TO LATER ESCHEAT TO THE FORMER STATE
IF IT PROVES SUCH AN ADDRESS TO BE WITHIN ITS BORDERS AND PROVIDES FOR
ESCHEAT OF SUCH PROPERTY.  PP. 680-683. 

TEXAS V. NEW JERSEY ET AL. 

ON BILL OF COMPLAINT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

INVOKING THIS COURT'S ORIGINAL JURISDICTION UNDER ART. III, SEC. 2,
OF THE CONSTITUTION, (FN1) TEXAS BROUGHT THIS ACTION AGAINST NEW
JERSEY, PENNSYLVANIA, AND THE SUN OIL COMPANY FOR AN INJUNCTION AND
DECLARATION OF RIGHTS TO SETTLE A CONTROVERSY AS TO WHICH STATE HAS
JURISDICTION TO TAKE TITLE TO CERTAIN ABANDONED INTANGIBLE PERSONAL
PROPERTY THROUGH ESCHEAT, A PROCEDURE WITH ANCIENT ORIGINS (FN2)
WHEREBY A SOVEREIGN MAY ACQUIRE TITLE TO ABANDONED PROPERTY IF AFTER A
NUMBER OF YEARS NO RIGHTFUL OWNER APPEARS.  THE PROPERTY IN QUESTION
HERE CONSISTS OF VARIOUS SMALL DEBTS TOTALING $26,461.65 (FN3) WHICH
THE SUN OIL COMPANY FOR PERIODS OF APPROXIMATELY SEVEN TO 40 YEARS
PRIOR TO THE BRINGING OF THIS ACTION HAS OWED TO APPROXIMATELY 1,730
SMALL CREDITORS WHO HAVE NEVER APPEARED TO COLLECT THEM.  THE AMOUNTS
OWED, MOST OF THEM RESULTING FROM FAILURE OF CREDITORS TO CLAIM OR CASH
CHECKS, ARE EITHER EVIDENCED ON THE BOOKS OF SUN'S TWO TEXAS OFFICES OR
ARE OWING TO PERSONS WHOSE LAST KNOWN ADDRESS WAS IN TEXAS, OR BOTH. 
(FN4)  TEXAS SAYS THAT THIS INTANGIBLE PROPERTY SHOULD BE TREATED AS
SITUATED IN TEXAS, SO AS TO PERMIT THAT STATE TO ESCHEAT IT.  NEW
JERSEY CLAIMS THE RIGHT TO ESCHEAT THE SAME PROPERTY BECAUSE SUN IS
INCORPORATED IN NEW JERSEY.  PENNSYLVANIA CLAIMS POWER TO ESCHEAT PART
OR ALL OF THE SAME PROPERTY ON THE GROUND THAT SUN'S PRINCIPAL BUSINESS
OFFICES WERE IN THAT STATE.  SUN HAS DISCLAIMED ANY INTEREST IN THE
PROPERTY FOR ITSELF, AND ASKS ONLY TO BE PROTECTED FROM THE POSSIBILITY
OF DOUBLE LIABILITY.  SINCE WE HELD IN WESTERN UNION TEL. CO. V.
PENNSYLVANIA, 368 U.S. 71, THAT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT PREVENTS MORE THAN ONE STATE FROM ESCHEATING A
GIVEN ITEM OF PROPERTY, WE GRANTED TEXAS LEAVE TO FILE THIS COMPLAINT
AGAINST NEW JERSEY, PENNSYLVANIA AND SUN, 371 U.S. 873, AND REFERRED
THE CASE TO THE HONORABLE WALTER A. HUXMAN TO SIT AS SPECIAL MASTER TO
TAKE EVIDENCE AND MAKE APPROPRIATE REPORTS, 372 U.S. 926.  (FN5)
FLORIDA WAS PERMITTED TO INTERVENE SINCE IT CLAIMED THE RIGHT TO
ESCHEAT THE PORTION OF SUN'S ESCHEATABLE OBLIGATIONS OWING TO PERSONS
WHOSE LAST KNOWN ADDRESS WAS IN FLORIDA.  373 U.S. 948.  (FN6)  THE
MASTER HAS FILED HIS REPORT, TEXAS AND NEW JERSEY EACH HAVE FILED
EXCEPTIONS TO IT, AND THE CASE IS NOW READY FOR OUR DECISION.  WE AGREE
WITH THE MASTER'S RECOMMENDATION AS TO THE PROPER DISPOSITION OF THE
PROPERTY. 

WITH RESPECT TO TANGIBLE PROPERTY, REAL OR PERSONAL, IT HAS ALWAYS
BEEN THE UNQUESTIONED RULE IN ALL JURISDICTIONS THAT ONLY THE STATE IN
WHICH THE PROPERTY IS LOCATED MAY ESCHEAT.  BUT INTANGIBLE PROPERTY,
SUCH AS A DEBT WHICH A PERSON IS ENTITLED TO COLLECT, IS NOT PHYSICAL
MATTER WHICH CAN BE LOCATED ON A MAP.  THE CREDITOR MAY LIVE IN ONE
STATE, THE DEBTOR IN ANOTHER, AND MATTERS MAY BE FURTHER COMPLICATED
IF, AS IN THE CASE BEFORE US, THE DEBTOR IS A CORPORATION WHICH HAS
CONNECTIONS WITH MANY STATES AND EACH CREDITOR IS A PERSON WHO MAY HAVE
HAD CONNECTIONS WITH SEVERAL OTHERS AND WHOSE PRESENT ADDRESS IS
UNKNOWN.  SINCE THE STATES SEPARATELY ARE WITHOUT CONSTITUTIONAL POWER
TO PROVIDE A RULE TO SETTLE THIS INTERSTATE CONTROVERSY AND SINCE THERE
IS NO APPLICABLE FEDERAL STATUTE, IT BECOMES OUR RESPONSIBILITY IN THE
EXERCISE OF OUR ORIGINAL JURISDICTION TO ADOPT A RULE WHICH WILL SETTLE
THE QUESTION OF WHICH STATE WILL BE ALLOWED TO ESCHEAT THIS INTANGIBLE
PROPERTY. 

FOUR DIFFERENT POSSIBLE RULES ARE URGED UPON US BY THE RESPECTIVE
STATES WHICH ARE PARTIES TO THIS CASE.  TEXAS, RELYING ON NUMEROUS
RECENT DECISIONS OF STATE COURTS DEALING WITH CHOICE OF LAW IN PRIVATE
LITIGATION, (FN7) SAYS THAT THE STATE WITH THE MOST SIGNIFICANT
"CONTACTS" WITH THE DEBT SHOULD BE ALLOWED EXCLUSIVE JURISDICTION TO
ESCHEAT IT, AND THAT BY THAT TEST TEXAS HAS THE BEST CLAIM TO ESCHEAT
EVERY ITEM OF PROPERTY INVOLVED HERE.  CF.  MULLANE V. CENTRAL HANOVER
BANK & TRUST CO., 339 U.S. 306; ATKINSON V. SUPERIOR COURT, 49 CAL. 2D
338, 316 P.2D 960, APPEALS DISMISSED AND CERT. DENIED SUB NOM. COLUMBIA
BROADCASTING SYSTEM, INC. V. ATKINSON, 357 U.S. 569.  BUT THE RULE THAT
TEXAS PROPOSES, WE BELIEVE, WOULD SERVE ONLY TO LEAVE IN PERMANENT
TURMOIL A QUESTION WHICH SHOULD BE SETTLED ONCE AND FOR ALL BY A CLEAR
RULE WHICH WILL GOVERN ALL TYPES OF INTANGIBLE OBLIGATIONS LIKE THESE
AND TO WHICH ALL STATES MAY REFER WITH CONFIDENCE.  THE ISSUE BEFORE US
IS NOT WHETHER A DEFENDANT HAS HAD SUFFICIENT CONTACT WITH A STATE TO
MAKE HIM OR HIS PROPERTY RIGHTS SUBJECT TO THE JURISDICTION OF ITS
COURTS, A JURISDICTION WHICH NEED NOT BE EXCLUSIVE.  COMPARE MCGEE V.
INTERNATIONAL LIFE INS. CO., 355 U.S. 220; MULLANE V. CENTRAL HANOVER
BANK & TRUST CO., SUPRA; INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S.
310.  (FN8)  SINCE THIS COURT HAS HELD IN WESTERN UNION TEL. CO. V.
PENNSYLVANIA, SUPRA, THAT THE SAME PROPERTY CANNOT CONSTITUTIONALLY BE
ESCHEATED BY MORE THAN ONE STATE, WE ARE FACED HERE WITH THE VERY
DIFFERENT PROBLEM OF DECIDING WHICH STATE'S CLAIM TO ESCHEAT IS
SUPERIOR TO ALL OTHERS.  THE "CONTACTS" TEST AS APPLIED IN THIS FIELD
IS NOT REALLY ANY WORKABLE TEST AT ALL - IT IS SIMPLY A PHRASE
SUGGESTING THAT THIS COURT SHOULD EXAMINE THE CIRCUMSTANCES SURROUNDING
EACH PARTICULAR ITEM OF ESCHEATABLE PROPERTY ON ITS OWN PECULIAR FACTS
AND THEN TRY TO MAKE A DIFFICULT, OFTEN QUITE SUBJECTIVE, DECISION AS
TO WHICH STATE'S CLAIM TO THOSE PENNIES OR DOLLARS SEEMS STRONGER THAN
ANOTHER'S.  UNDER SUCH A DOCTRINE ANY STATE LIKELY WOULD EASILY
CONVINCE ITSELF, AND HOPE TO CONVINCE THIS COURT, THAT ITS CLAIM SHOULD
BE GIVEN PRIORITY - AS IS SHOWN BY TEXAS' ARGUMENT THAT IT HAS A
SUPERIOR CLAIM TO EVERY SINGLE CATEGORY OF ASSETS INVOLVED IN THIS
CASE.  SOME OF THEM TEXAS SAYS IT SHOULD BE ALLOWED TO ESCHEAT BECAUSE
THE LAST KNOWN ADDRESSES OF THE CREDITORS WERE IN TEXAS, OTHERS IT
CLAIMS IN SPITE OF THE FACT THAT THE LAST KNOWN ADDRESSES WERE NOT IN
TEXAS.  THE UNCERTAINTY OF ANY TEST WHICH WOULD REQUIRE US IN EFFECT
EITHER TO DECIDE EACH ESCHEAT CASE ON THE BASIS OF ITS PARTICULAR FACTS
OR TO DEVISE NEW RULES OF LAW TO APPLY TO EVER-DEVELOPING NEW
CATEGORIES OF FACTS, MIGHT IN THE END CREATE SO MUCH UNCERTAINTY AND
THREATEN SO MUCH EXPENSIVE LITIGATION THAT THE STATES MIGHT FIND THAT
THEY WOULD LOSE MORE IN LITIGATION EXPENSES THAN THEY MIGHT GAIN IN
ESCHEATS.  (FN9) 

NEW JERSEY ASKS US TO HOLD THAT THE STATE WITH POWER TO ESCHEAT IS
THE DOMICILE OF THE DEBTOR - IN THIS CASE NEW JERSEY, THE STATE OF
SUN'S INCORPORATION.  THIS PLAN HAS THE OBVIOUS VIRTUES OF CLARITY AND
EASE OF APPLICATION.  BUT IT IS NOT THE ONLY ONE WHICH DOES, AND IT
SEEMS TO US THAT IN DECIDING A QUESTION WHICH SHOULD BE DETERMINED
PRIMARILY ON PRINCIPLES OF FAIRNESS, IT WOULD TOO GREATLY EXALT A MINOR
FACTOR TO PERMIT ESCHEAT OF OBLIGATIONS INCURRED ALL OVER THE COUNTRY
BY THE STATE IN WHICH THE DEBTOR HAPPENED TO INCORPORATE ITSELF. 

IN SOME RESPECTS THE CLAIM OF PENNSYLVANIA, WHERE SUN'S PRINCIPAL
OFFICES ARE LOCATED, IS MORE PERSUASIVE, SINCE THIS STATE IS PROBABLY
FOREMOST IN GIVING THE BENEFITS OF ITS ECONOMY AND LAWS TO THE COMPANY
WHOSE BUSINESS ACTIVITIES MADE THE INTANGIBLE PROPERTY COME INTO
EXISTENCE.  ON THE OTHER HAND, THESE DEBTS OWED BY SUN ARE NOT PROPERTY
TO IT, BUT RATHER A LIABILITY, AND IT WOULD BE STRANGE TO CONVERT A
LIABILITY INTO AN ASSET WHEN THE STATE DECIDES TO ESCHEAT.  CF. CASE OF
THE STATE TAX ON FOREIGN-HELD BONDS, 15 WALL.  300, 320.  MOREOVER,
APPLICATION OF THE RULE PENNSYLVANIA SUGGESTS WOULD RAISE IN EVERY CASE
THE SOMETIMES DIFFICULT QUESTION OF WHERE A COMPANY'S "MAIN OFFICE" OR
"PRINCIPAL PLACE OF BUSINESS" OR WHATEVER IT MIGHT BE DESIGNATED IS
LOCATED.  SIMILAR UNCERTAINTIES WOULD RESULT IF WE WERE TO ATTEMPT IN
EACH CASE TO DETERMINE THE STATE IN WHICH THE DEBT WAS CREATED AND
ALLOW IT TO ESCHEAT.  ANY RULE LEAVING SO MUCH FOR DECISION ON A CASE
BY-CASE BASIS SHOULD NOT BE ADOPTED UNLESS NONE IS AVAILABLE WHICH IS
MORE CERTAIN AND YET STILL FAIR.  WE THINK THE RULE PROPOSED BY THE
MASTER, BASED ON THE ONE SUGGESTED BY FLORIDA, IS. 

THE RULE FLORIDA SUGGESTS IS THAT SINCE A DEBT IS PROPERTY OF THE
CREDITOR, NOT OF THE DEBTOR, (FN10) FAIRNESS AMONG THE STATES REQUIRES
THAT THE RIGHT AND POWER TO ESCHEAT THE DEBT SHOULD BE ACCORDED TO THE
STATE OF THE CREDITOR'S LAST KNOWN ADDRESS AS SHOWN BY THE DEBTOR'S
BOOKS AND RECORDS.  (FN11)  SUCH A SOLUTION WOULD BE IN LINE WITH ONE
GROUP OF CASES DEALING WITH INTANGIBLE PROPERTY FOR OTHER PURPOSES IN
OTHER AREAS OF THE LAW.  (FN12)  ADOPTION OF SUCH A RULE INVOLVES A
FACTUAL ISSUE SIMPLE AND EASY TO RESOLVE, AND LEAVES NO LEGAL ISSUE TO
BE DECIDED.  IT TAKES ACCOUNT OF THE FACT THAT IF THE CREDITOR INSTEAD
OF PERHAPS LEAVING BEHIND AN UNCASHED CHECK HAD NEGOTIATED THE CHECK
AND LEFT BEHIND CASH, THIS STATE WOULD HAVE BEEN THE SOLE POSSIBLE
ESCHEAT CLAIMANT; IN OTHER WORDS, THE RULE RECOGNIZES THAT THE DEBT WAS
AN ASSET OF THE CREDITOR.  THE RULE RECOMMENDED BY THE MASTER WILL TEND
TO DISTRIBUTE ESCHEATS AMONG THE STATES IN THE PROPORTION OF THE
COMMERCIAL ACTIVITIES OF THEIR RESIDENTS.  AND BY USING A STANDARD OF
LAST KNOWN ADDRESS, RATHER THAN TECHNICAL LEGAL CONCEPTS OF RESIDENCE
AND DOMICILE, ADMINISTRATION AND APPLICATION OF ESCHEAT LAWS SHOULD BE
SIMPLIFIED.  IT MAY WELL BE THAT SOME ADDRESSES LEFT BY VANISHED
CREDITORS WILL BE IN STATES OTHER THAN THOSE IN WHICH THEY LIVED AT THE
TIME THE OBLIGATION AROSE OR AT THE TIME OF THE ESCHEAT.  BUT SUCH
SITUATIONS PROBABLY WILL BE THE EXCEPTION, AND ANY ERRORS THUS CREATED,
IF INDEED THEY COULD BE CALLED ERRORS, PROBABLY WILL TEND TO A LARGE
EXTENT TO CANCEL EACH OTHER OUT.  WE THEREFORE HOLD THAT EACH ITEM OF
PROPERTY IN QUESTION IN THIS CASE IS SUBJECT TO ESCHEAT ONLY BY THE
STATE OF THE LAST KNOWN ADDRESS OF THE CREDITOR, AS SHOWN BY THE
DEBTOR'S BOOKS AND RECORDS.  (FN13) 

THIS LEAVES QUESTIONS AS TO WHAT IS TO BE DONE WITH PROPERTY OWED
PERSONS (1) AS TO WHOM THERE IS NO RECORD OF ANY ADDRESS AT ALL, OR (2)
WHOSE LAST KNOWN ADDRESS IS IN A STATE WHICH DOES NOT PROVIDE FOR
ESCHEAT OF THE PROPERTY OWED THEM.  THE MASTER SUGGESTED AS TO THE
FIRST SITUATION - WHERE THERE IS NO LAST KNOWN ADDRESS - THAT THE
PROPERTY BE SUBJECT TO ESCHEAT BY THE STATE OF CORPORATE DOMICILE,
PROVIDED THAT ANOTHER STATE COULD LATER ESCHEAT UPON PROOF THAT THE
LAST KNOWN ADDRESS OF THE CREDITOR WAS WITHIN ITS BORDERS.  ALTHOUGH
NOT MENTIONED BY THE MASTER, THE SAME RULE COULD APPLY TO THE SECOND
SITUATION MENTIONED ABOVE, THAT IS, WHERE THE STATE OF THE LAST KNOWN
ADDRESS DOES NOT, AT THE TIME IN QUESTION, PROVIDE FOR ESCHEAT OF THE
PROPERTY.  IN SUCH A CASE THE STATE OF CORPORATE DOMICILE COULD ESCHEAT
THE PROPERTY, SUBJECT TO THE RIGHT OF THE STATE OF THE LAST KNOWN
ADDRESS TO RECOVER IT IF AND WHEN ITS LAW MADE PROVISION FOR ESCHEAT OF
SUCH PROPERTY.  IN OTHER WORDS, IN BOTH SITUATIONS THE STATE OF
CORPORATE DOMICILE SHOULD BE ALLOWED TO CUT OFF THE CLAIMS OF PRIVATE
PERSONS ONLY, RETAINING THE PROPERTY FOR ITSELF ONLY UNTIL SOME OTHER
STATE COMES FORWARD WITH PROOF THAT IT HAS A SUPERIOR RIGHT TO
ESCHEAT.  SUCH A SOLUTION FOR THESE PROBLEMS, LIKELY TO ARISE WITH
COMPARATIVE INFREQUENCY, SEEMS TO US CONDUCIVE TO NEEDED CERTAINTY AND
WE THEREFORE ADOPT IT. 

WE REALIZE THAT THIS CASE COULD HAVE BEEN RESOLVED OTHERWISE, FOR THE
ISSUE HERE IS NOT CONTROLLED BY STATUTORY OR CONSTITUTIONAL PROVISIONS
OR BY PAST DECISIONS, NOR IS IT ENTIRELY ONE OF LOGIC.  IT IS
FUNDAMENTALLY A QUESTION OF EASE OF ADMINISTRATION AND OF EQUITY.  WE
BELIEVE THAT THE RULE WE ADOPT IS THE FAIREST, IS EASY TO APPLY, AND IN
THE LONG RUN WILL BE THE MOST GENERALLY ACCEPTABLE TO ALL THE STATES. 

THE PARTIES MAY SUBMIT A PROPOSED DECREE APPLYING THE PRINCIPLES
ANNOUNCED IN THIS OPINION.  IT IS SO ORDERED. 

FN1  "THE JUDICIAL POWER SHALL EXTEND  ...  TO CONTROVERSIES BETWEEN
TWO OR MORE STATES  ...  . 

"IN ALL CASES  ...  IN WHICH A STATE SHALL BE PARTY, THE SUPREME
COURT SHALL HAVE ORIGINAL JURISDICTION." 

28 U.S.C. SEC. 1251(A) (1958 ED.)  PROVIDES IN RELEVANT PART: 

"THE SUPREME COURT SHALL HAVE ORIGINAL AND EXCLUSIVE JURISDICTION
OF: 

"(1)  ALL CONTROVERSIES BETWEEN TWO OR MORE STATES  ...  ." 

FN2  SEE GENERALLY ENEVER, BONA VACANTIA UNDER THE LAW OF ENGLAND;
NOTE 61 COL. L. REV.  1319. 

FN3  THE AMOUNT ORIGINALLY REPORTED BY SUN TO THE TREASURER OF TEXAS
WAS $37,853.37, BUT PAYMENTS TO OWNERS SUBSEQUENTLY FOUND REDUCED THE
UNCLAIMED AMOUNT. 

FN4  THE DEBTS CONSISTED OF THE FOLLOWING: 

(1)  AMOUNTS WHICH SUN ATTEMPTED TO PAY THROUGH ITS TEXAS OFFICES
OWING TO CREDITORS SOME OF WHOSE LAST KNOWN ADDRESSES WERE IN TEXAS,
SOME OF WHOSE LAST KNOWN ADDRESSES WERE ELSEWHERE, AND SOME OF WHOM HAD
NO LAST KNOWN ADDRESS INDICATED: 

(A)  UNCASHED CHECKS PAYABLE TO EMPLOYEES FOR WAGES AND REIMBURSABLE
EXPENSES: 

(B)  UNCASHED CHECKS PAYABLE TO SUPPLIERS FOR GOODS AND SERVICES: 

(C)  UNCASHED CHECKS PAYABLE TO LESSORS OF OIL- AND GAS-PRODUCING
LAND AS ROYALTY PAYMENTS: 

(D)  UNCLAIMED "MINERAL PROCEEDS," FRACTIONAL MINERAL INTERESTS SHOWN
AS DEBTS ON THE BOOKS OF THE TEXAS OFFICES.    (2)  AMOUNTS FOR WHICH
VARIOUS OFFICES OF SUN THROUGHOUT THE COUNTRY ATTEMPTED TO MAKE PAYMENT
TO CREDITORS ALL OF WHOM HAD LAST KNOWN ADDRESSES IN TEXAS: 

(A)  UNCASHED CHECKS PAYABLE TO SHAREHOLDERS FOR DIVIDENDS ON COMMON
STOCK: 

(B)  UNCLAIMED REFUNDS OF PAYROLL DEDUCTIONS OWING TO FORMER
EMPLOYEES: 

(C)  UNCASHED CHECKS PAYABLE TO VARIOUS SMALL CREDITORS FOR MINOR
OBLIGATIONS: 

(D)  UNDELIVERED FRACTIONAL STOCK CERTIFICATES RESULTING FROM STOCK
DIVIDENDS. 

FN5  TEXAS' MOTION FOR LEAVE TO FILE THE BILL OF COMPLAINT ALSO
PRAYED FOR TEMPORARY INJUNCTIONS RESTRAINING THE OTHER STATES AND SUN
FROM TAKING STEPS TO ESCHEAT THE PROPERTY.  THE OTHER STATES
VOLUNTARILY AGREED NOT TO ACT PENDING DETERMINATION OF THIS CASE, AND
SO THE MOTION FOR INJUNCTIONS WAS DENIED.  370 U.S. 929. 

FN6  ILLINOIS, WHICH CLAIMS NO INTEREST IN THE PROPERTY INVOLVED IN
THIS CASE, ALSO SOUGHT TO INTERVENE TO URGE THAT JURISDICTION TO
ESCHEAT SHOULD DEPEND ON THE LAWS OF THE STATE IN WHICH THE
INDEBTEDNESS WAS CREATED.  LEAVE TO INTERVENE WAS DENIED.  372 U.S.
973. 

FN7  E.G., SCHMIDT V. DRISCOLL HOTEL, INC., 249 MINN. 376, 82 N.W.2D
365; AUTEN V. AUTEN, 308 N.Y. 155, 124 N.E.2D 99; HAUMSCHILD V.
CONTINENTAL CASUALTY CO., 7 WIS. 2D 130, 95 N.W.2D 814.  SEE ALSO CLAY
V. SUN INSURANCE OFFICE, LTD., 377 U.S. 179; WATSON V. EMPLOYERS
LIABILITY ASSURANCE CORP., 348 U.S. 66; CF. RICHARDS V. UNITED STATES,
369 U.S. 1; VANSTON BONDHOLDERS PROTECTIVE COMMITTEE V. GREEN, 329 U.S.
156. 

FN8  NOR, SINCE WE ARE DEALING ONLY WITH ESCHEAT, ARE WE CONCERNED
WITH THE POWER OF A STATE LEGISLATURE TO REGULATE ACTIVITIES AFFECTING
THE STATE, POWER WHICH LIKE COURT JURISDICTION NEED NOT BE EXCLUSIVE. 
COMPARE OSBORN V. OZLIN, 310 U.S. 53. 

FN9  TEXAS ARGUES IN PARTICULAR THAT AT LEAST THE PART OF THE
INTANGIBLE OBLIGATIONS HERE WHICH ARE ROYALTIES, RENTS, AND MINERAL
PROCEEDS DERIVED FROM LAND LOCATED IN TEXAS SHOULD BE ESCHEATABLE ONLY
BY THAT STATE.  WE DO NOT BELIEVE THAT THE FACT THAT AN INTANGIBLE IS
INCOME FROM REAL PROPERTY WITH A FIXED SITUS IS SIGNIFICANT ENOUGH TO
JUSTIFY TREATING IT AS AN EXCEPTION TO A GENERAL RULE CONCERNING
ESCHEAT OF INTANGIBLES. 

FN10  ON THIS POINT FLORIDA STRESSES WHAT IS ESSENTIALLY A VARIATION
OF THE OLD CONCEPT OF "MOBILIA SEQUUNTUR PERSONAM," ACCORDING TO WHICH
INTANGIBLE PERSONAL PROPERTY IS FOUND AT THE DOMICILE OF ITS OWNER. 
SEE BLODGETT V. SILBERMAN, 277 U.S. 1, 9-10. 

FN11  WE AGREE WITH THE MASTER THAT SINCE OUR INQUIRY HERE IS NOT
CONCERNED WITH THE TECHNICAL DOMICILE OF THE CREDITOR, AND SINCE EASE
OF ADMINISTRATION IS IMPORTANT WHERE MANY SMALL SUMS OF MONEY ARE
INVOLVED, THE ADDRESS ON THE RECORDS OF THE DEBTOR, WHICH IN MOST CASES
WILL BE THE ONLY ONE AVAILABLE, SHOULD BE THE ONLY RELEVANT LAST-KNOWN
ADDRESS. 

FN12  SEE, E.G., BALDWIN V. MISSOURI, 281 U.S. 586; FARMERS LOAN &
TRUST CO. V. MINNESOTA, 280 U.S. 204; BLODGETT V. SILBERMAN, 277 U.S.
1.  HOWEVER, IT HAS BEEN HELD THAT A STATE MAY ALLOW AN UNPAID CREDITOR
TO GARNISH A DEBT OWING TO HIS DEBTOR WHEREVER THE PERSON OWING THAT
DEBT IS FOUND.  HARRIS V. BALK, 198 U.S. 215.  BUT CF. NEW YORK LIFE
INS. CO. V. DUNLEVY, 241 U.S. 518. 

FN13  CF. CONNECTICUT MUTUAL LIFE INS. CO. V. MOORE, 333 U.S. 541. 
AS WAS POINTED OUT IN WESTERN UNION TEL. CO. V. PENNSYLVANIA, 368 U.S.
71, 77-78, NONE OF THIS COURT'S CASES ALLOWING STATES TO ESCHEAT
INTANGIBLE PROPERTY DECIDED THE POSSIBLE EFFECT OF CONFLICTING CLAIMS
OF OTHER STATES.  COMPARE STANDARD OIL CO. V. NEW JERSEY, 341 U.S. 428,
443; CONNECTICUT MUTUAL LIFE INS. CO. V. MOORE, SUPRA; ANDERSON
NATIONAL BANK V. LUCKETT, 321 U.S. 233; SECURITY SAVINGS BANK V.
CALIFORNIA, 263 U.S. 282. 

MR. JUSTICE STEWART, DISSENTING. 

I ADHERE TO THE VIEW THAT ONLY THE STATE OF THE DEBTOR'S
INCORPORATION HAS POWER TO "ESCHEAT" INTANGIBLE PROPERTY WHERE THE
WHEREABOUTS OF THE CREDITOR ARE UNKNOWN.  SEE WESTERN UNION TEL. CO. V.
PENNSYLVANIA, 368 U.S. 71, 80 (SEPARATE MEMORANDUM).  THE SOVEREIGN'S
POWER TO ESCHEAT TANGIBLE PROPERTY HAS LONG BEEN RECOGNIZED AS
EXTENDING ONLY TO THE LIMITS OF ITS TERRITORIAL JURISDICTION. 
INTANGIBLE PROPERTY HAS NO SPATIAL EXISTENCE, BUT CONSISTS OF AN
OBLIGATION OWED ONE PERSON BY ANOTHER.  THE POWER TO ESCHEAT SUCH
PROPERTY HAS TRADITIONALLY BEEN THOUGHT TO BE LODGED IN THE DOMICILIARY
STATE OF ONE OF THE PARTIES TO THE OBLIGATION.  IN A CASE SUCH AS THIS
THE DOMICILE OF THE DEBTOR IS KNOWN.  THIS COURT HAS THRICE RULED THAT
WHERE THE CREDITOR HAS DISAPPEARED, THE STATE OF THE DEBTOR'S DOMICILE
MAY ESCHEAT THE INTANGIBLE PROPERTY.  STANDARD OIL CO. V. NEW JERSEY,
341 U.S.  428; ANDERSON NAT. BANK V. LUCKETT, 321 U.S. 233; SECURITY
SAVINGS BANK V. CALIFORNIA, 263 U.S. 282.  TODAY THE COURT OVERRULES
ALL THREE OF THOSE CASES.  I WOULD NOT DO SO.  ADHERENCE TO SETTLED
PRECEDENT SEEMS TO ME FAR BETTER THAN GIVING THE PROPERTY TO THE STATE
WITHIN WHICH IS LOCATED THE ONE PLACE WHERE WE KNOW THE CREDITOR IS
NOT. 
..END :



BLOW V. NORTH CAROLINA 379 U.S. 684 


NO. 387.  DECIDED FEBRUARY 1, 1965 - CERTIORARI GRANTED; 261 N.C. 463,
135 S.E.2D 14; 261 N.C. 467, 135 S.E.2D 17, JUDGMENTS VACATED AND CAUSE
REMANDED. 


NEGROES DENIED ENTRY TO A RESTAURANT SERVING WHITES ONLY WERE ARRESTED
AFTER REFUSING TO LEAVE THE PROPERTY.  THEY WERE CONVICTED OF VIOLATING
A NORTH CAROLINA STATUTE MAKING IT A CRIME TO ENTER UPON THE LANDS OF
ANOTHER WITHOUT A LICENSE AFTER BEING FORBIDDEN TO DO SO, AND THEIR
CONVICTIONS WERE AFFIRMED BY THE STATE SUPREME COURT.  THE RESTAURANT
AND THE ADJOINING MOTEL WHICH ARE UNDER THE SAME MANAGEMENT ARE ON AN
INTERSTATE HIGHWAY AND ARE EXTENSIVELY ADVERTISED.  HELD:  SINCE THE
RESTAURANT SERVES OR OFFERS TO SERVE INTERSTATE TRAVELERS IT IS A
"PLACE OF PUBLIC ACCOMMODATION" WITHIN SEC. 201 OF THE CIVIL RIGHTS ACT
OF 1964, AND THESE CONVICTIONS ALTHOUGH FOR CONDUCT PRIOR TO THE
ENACTMENT THEREOF ARE ABATED BY PASSAGE OF THAT ACT.  HAMM V. CITY OF
ROCK HILL, ANTE, P. 306, FOLLOWED.  PP. 685-686. 

BLOW ET AL. V. NORTH CAROLINA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA. 

PER CURIAM. 

PETITIONERS, TWO NEGROES, APPROACHED THE PLANTATION RESTAURANT IN THE
COMPANY OF 35 TO 40 OTHER NEGROES.  THIS RESTAURANT SERVED WHITES ONLY
AND CARRIED A SIGN TO THAT EFFECT ON ITS FRONT DOOR.  PURSUANT TO THIS
POLICY THE OWNER OF THE RESTAURANT LOCKED THE DOOR AGAINST THE NEGROES,
THOUGH FROM TIME TO TIME HE WOULD OPEN THE DOOR TO ADMIT WHITE
CUSTOMERS AND RELOCK IT AFTER THEY HAD ENTERED.  THE RESTAURANT WAS
SOME 60 FEET FROM THE HIGHWAY, THE PROPERTY BETWEEN THE RESTAURANT AND
THE HIGHWAY BEING OWNED BY THE RESTAURANT PROPRIETER.  THE NEGROES
WAITED OUTSIDE THE DOOR, SOME ON A SHRUBBERY BOX SIX OR EIGHT FEET
AWAY, OTHERS UP TO 15 FEET DISTANT.  THE OWNER ASKED THE NEGROES TO
LEAVE; BUT THEY CONTINUED TO WAIT QUIETLY OUTSIDE UNTIL THEY WERE
ARRESTED.  FOR THIS CONDUCT PETITIONERS WERE INDICTED AND CONVICTED FOR
VIOLATION OF SEC. 14-134 OF THE NORTH CAROLINA GENERAL STATUTES, MAKING
IT AN OFFENSE TO "GO OR ENTER UPON THE LANDS OF ANOTHER, WITHOUT A
LICENSE THEREFOR" AND "AFTER BEING FORBIDDEN TO DO SO."  THE SUPREME
COURT OF NORTH CAROLINA AFFIRMED PETITIONERS' CONVICTIONS ON MARCH 18,
1964.  261 N.C. 463, 135 S.E.2D 14; 261 N.C. 467, 135 S.E.2D 17. 

THE PLANTATION RESTAURANT IS SITUATED ON INTERSTATE HIGHWAY 301 IN
THE TOWN OF ENFIELD, NORTH CAROLINA.  ADJOINING THE RESTAURANT AND
OWNED BY THE SAME PERSON IS THE ENFIELD MOTEL.  THE RESTAURANT'S MENU
AND OTHER ADVERTISING ARE POSTED IN THE ROOMS OF THIS MOTEL.  THE
PLANTATION RESTAURANT AND ENFIELD MOTEL ARE ADVERTISED ON BILLBOARDS
FOR SOME MILES UP AND DOWN HIGHWAY 301.  THEY ARE FURTHER ADVERTISED ON
THE RADIO AND IN THE NEWSPAPERS. 

SINCE THESE FACTS MAKE IT CLEAR THAT THE PLANTATION RESTAURANT
"SERVES OR OFFERS TO SERVE INTERSTATE TRAVELERS," IT MUST BE HELD THAT
THE RESTAURANT IS A "PLACE OF PUBLIC ACCOMMODATION" WITHIN THE MEANING
OF SECS. 201(B)(2) AND (C)(2) OF THE CIVIL RIGHTS ACT OF 1964. 

"THE CIVIL RIGHTS ACT OF 1964 FORBIDS DISCRIMINATION IN PLACES OF
PUBLIC ACCOMMODATION AND REMOVES PEACEFUL ATTEMPTS TO BE SERVED ON AN
EQUAL BASIS FROM THE CATEGORY OF PUNISHABLE ACTIVITIES.  ALTHOUGH THE
CONDUCT IN THE PRESENT CASES OCCURRED PRIOR TO THE ENACTMENT OF THE
ACT, THE STILL-PENDING CONVICTIONS ARE ABATED BY ITS PASSAGE."  HAMM V.
CITY OF ROCK HILL, ANTE, AT 308.  ACCORDINGLY, THE WRIT OF CERTIORARI
IS GRANTED, THE JUDGMENTS ARE VACATED, AND THE CAUSE REMANDED FOR
DISMISSAL OF THE INDICTMENTS.  IT IS SO ORDERED. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, AND MR. JUSTICE WHITE WOULD
AFFIRM THE JUDGMENTS OF THE SUPREME COURT OF NORTH CAROLINA FOR REASONS
STATED IN THEIR DISSENTING OPINIONS IN HAMM V. CITY OF ROCK HILL, ANTE,
AT 318, 322, 327. 

MR. JUSTICE STEWART WOULD VACATE THE JUDGMENTS OF THE SUPREME COURT
OF NORTH CAROLINA AND REMAND THE CASE TO THAT COURT FOR THE REASONS
STATED IN HIS DISSENTING OPINION IN HAMM V. CITY OF ROCK HILL, ANTE,
326. 
..END :




















FEDERAL POWER COMMISSION V. AMERADA PETROLEUM CORP. 379 U.S. 687 


NO. 585.  DECIDED FEBRUARY 1, 1965 - CERTIORARI GRANTED; 334 F.2D 404,
REVERSED. 


1.  WHERE A SUPPLIER SELLS NATURAL GAS TO AN INTERSTATE PIPELINE
COMPANY WHICH COMMINGLES IT WITH GAS FROM OTHER SOURCES AND USES SOME
OF THE MIXTURE INTRASTATE BUT SELLS A SUBSTANTIAL PORTION THEREOF IN
INTERSTATE COMMERCE, THE PARTIES MAY NOT AVOID THE JURISDICTION OF THE
FEDERAL POWER COMMISSION BY STIPULATING IN THEIR CONTRACT THAT,
CONTRARY TO THE ACTUALITY OF PIPELINE TRANSPORTATION, ALL THE
SUPPLIER'S GAS SOLD UNDER THE CONTRACT WILL BE USED INTRASTATE. 
CALIFORNIA V. LO-VACA GATHERING CO., ANTE, P. 366, FOLLOWED.  P. 690. 

2.  THE DOCTRINE OF COLLATERAL ESTOPPEL IS NOT APPLICABLE HERE SINCE
ONLY THE SCOPE OF FUTURE REGULATION CONCERNING TRANSACTIONS NOT
GOVERNED BY PAST DECISIONS IS INVOLVED.  P. 690. 

FEDERAL POWER COMMISSION V. AMERADA PETROLEUM CORP. ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

MONTANA-DAKOTA (MDU) IS AN INTERSTATE NATURAL GAS PIPELINE COMPANY,
SELLING AND TRANSPORTING GAS IN MONTANA, NORTH DAKOTA, SOUTH DAKOTA,
AND WYOMING.  THE LINES INVOLVED HERE RUN TO THE EAST AND WEST FROM THE
TIOGA PROCESSING PLANT IN NORTH DAKOTA, JOINTLY OWNED BY AMERADA AND
SIGNAL, PRODUCERS OF NATURAL GAS IN NORTH DAKOTA.  ALSO, RUNNING NORTH
FROM THE TIOGA POINT IS A LINE EXTENDING TO THE GASOLINE EXTRACTION
PLANTS OF HUNT-HERBERT AND TXL (NOW TEXACO), BOTH OF NORTH DAKOTA. 

ON A PEAK WINTER DAY IN 1962-1963 MDU WAS EXPECTED TO PURCHASE A
TOTAL OF 70,000 MCF OF NORTH DAKOTA-PRODUCED GAS FROM THESE FOUR
PRODUCERS:  55,000 MCF FROM AMERADA-SIGNAL, 10,000 MCF FROM TXL, AND
5,000 MCF FROM HUNT-HERBERT.  OF THE 55,000 MCF FROM AMERADA-SIGNAL,
50,000 MCF WOULD FLOW TO THE EAST AND BE CONSUMED IN NORTH DAKOTA.  ALL
OF THE HUNT-HERBERT AND TXL GAS, PLUS THE REMAINING 5,000 MCF OF THE
AMERADA-SIGNAL GAS, WOULD FLOW TO THE WEST - A TOTAL OF 20,000 MCF.  OF
THIS WESTWARD-FLOWING GAS, 10,200 MCF WOULD BE CONSUMED IN NORTH
DAKOTA; THE REMAINING 9,800 MCF WOULD FLOW ACROSS THE STATE BOUNDARY
INTO MONTANA FOR CONSUMPTION OUTSIDE OF NORTH DAKOTA. 

ON AN AVERAGE SUMMER DAY MDU WOULD TAKE ABOUT 45,000 MCF FROM AMERADA
SIGNAL, WHILE CONTINUING TO TAKE ABOUT 15,000 MCF FROM HUNT-HERBERT AND
TXL.  OF THE AMERADA-SIGNAL GAS, 13,000 MCF WOULD FLOW WESTWARD,
COMMINGLED WITH THE 15,000 MCF FROM HUNT-HERBERT AND TXL.  ONLY 1,680
MCF OF THIS STREAM WOULD BE CONSUMED IN NORTH DAKOTA; THE REMAINING
26,320 MCF WOULD FLOW INTO MONTANA TO BE HELD IN STORAGE FOR ULTIMATE
REDELIVERY TO ALL PARTS OF MDU'S INTERSTATE SYSTEM.  32,000 MCF OF GAS
WOULD FLOW EASTWARD, ALL FROM AMERADA-SIGNAL.  IN CONTRAST TO THE
SITUATION ON A PEAK WINTER DAY, ONLY 7,280 MCF OF THIS EASTWARD-FLOWING
GAS WOULD BE CONSUMED IN NORTH DAKOTA, WHILE 24,720 MCF WOULD CROSS THE
STATE BOUNDARY AND GO INTO STORAGE. 

THE CONTRACTS FOR THE PURCHASE OF GAS FROM HUNT-HERBERT AND TXL
ADMITTEDLY CONSTITUTE SALES OF GAS FOR RESALE WITHIN THE MEANING OF
SEC. 1(B) OF THE NATURAL GAS ACT, 15 U.S.C.  SEC. 717.  THESE SELLERS
APPLIED FOR AND WERE GRANTED CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY BY THE COMMISSION.  27 F.P.C. 1092. 

PRIOR TO ENTERING INTO THE HUNT-HERBERT-TXL CONTRACTS, MDU ENTERED
INTO CONTRACTS WITH AMERADA AND SIGNAL WHICH ARE HERE IN ISSUE.  FIRST,
MDU CONCLUDED THE SO-CALLED "NORTH DAKOTA CONTRACTS" WITH BOTH AMERADA
AND SIGNAL.  UNDER THESE CONTRACTS MDU MUST BUT AT LEAST TWO-THIRDS OF
ITS ANNUAL NORTH DAKOTA REQUIREMENTS FROM AMERADA-SIGNAL, AND IT MAY
BUY UP TO ALL OF ITS NORTH DAKOTA REQUIREMENTS FROM THEM IF IT SO
ELECTS.  THE CONTRACTS RECITE THAT "ALL GAS PURCHASED BY BUYER UNDER
THIS AGREEMENT SHALL BE TRANSPORTED, USED AND CONSUMED ENTIRELY WITHIN
THE STATE OF NORTH DAKOTA."  SOON THEREAFTER, MDU ENTERED ITS SEPARATE
"INTERSTATE CONTRACTS" WITH AMERADA AND SIGNAL.  THESE CONTRACTS
PROVIDE THAT MDU MUST TAKE OR PAY FOR A CERTAIN NUMBER OF MCF PER YEAR
(AND PER DAY) IF AVAILABLE, "LESS THE QUANTITY OF GAS WHICH BUYER SHALL
PAY FOR WITH RESPECT TO SUCH CALENDAR YEAR UNDER THE AMERADA (OR
SIGNAL) NORTH DAKOTA CONTRACT." 

RESPONDENTS AMERADA AND SIGNAL CONTENDED BEFORE THE FEDERAL POWER
COMMISSION THAT SALES TO MDU UNDER THE "NORTH DAKOTA CONTRACTS" WOULD
BE "NONJURISDICTIONAL" SINCE THEY WERE NOT SALES IN INTERSTATE COMMERCE
FOR RESALE.  RELYING ON ITS DECISION IN LO-VACA GATHERING CO., 26
F.P.C. 606 (REVERSED, 323 F.2D 190, REVERSED, ANTE, P. 366), THE
COMMISSION REJECTED THE CONTENTION AND ASSERTED ITS JURISDICTION OVER
THE SALES.  30 F.P.C. 200.  THE COURT OF APPEALS REVERSED.  334 F.2D
404.  THE COMMISSION HAS PETITIONED FOR WRIT OF CERTIORARI. 

ALL OF THE GAS PURCHASED BY MDU FROM AMERADA-SIGNAL UNDER BOTH SETS
OF CONTRACTS IS DELIVERED INTO THE PIPELINE AT THE TIOGA PLANT. 
ACCORDING TO THE TESTIMONY OF MDU'S ENGINEER, ON A PEAK WINTER DAY THE
PIPELINE WOULD ELECT TO PURCHASE ALL OF THE AMERADA-SIGNAL GAS UNDER
THE "NORTH DAKOTA CONTRACTS."  YET, AS PREVIOUSLY SHOWN, ON SUCH A DAY
SOME OF THE AMERADA-SIGNAL GAS FLOWS WESTWARD, IN A COMMINGLED STREAM
WITH GAS FROM OTHER SOURCES, AND IS RESOLD OUTSIDE OF NORTH DAKOTA.  ON
AN AVERAGE SUMMER DAY MDU WOULD ELECT TO PURCHASE ABOUT 9,000 MCF OF
THE AMERADA-SIGNAL GAS UNDER THE "NORTH DAKOTA CONTRACTS," AND THE
REMAINING 36,000 MCF UNDER THE "INTERSTATE CONTRACTS."  YET, AS
PREVIOUSLY SHOWN, 1,680 MCF OF THE 9,000 MCF CONSUMED IN NORTH DAKOTA
WOULD HAVE TO BE METERED OFF FROM THE WESTWARD-FLOWING COMMINGLED
STREAM THAT IS DESTINED IN MAJOR PART FOR RESALE OUT-OF-STATE. 

FACTUALLY, THEREFORE, THE PRESENT CASE IS ON ALL FOURS WITH
CALIFORNIA V. LO-VACA GATHERING CO., ANTE, P. 366. 

THE COURT OF APPEALS THOUGHT THAT ITS DECISION IN NORTH DAKOTA V.
FEDERAL POWER COMM'N, 247 F.2D 173, BROUGHT COLLATERAL ESTOPPEL INTO
PLAY IN THE PRESENT CASE.  334 F.2D 404, 411-412.  BUT THAT RULE HAS NO
PLACE HERE FOR NO JUDGMENT GOVERNING PAST EVENTS IS IN JEOPARDY, ONLY
THE SCOPE OF FUTURE REGULATION THAT INVOLVES DIFFERENT EVENTS AND
TRANSACTIONS.  SEE COMMISSIONER V. SUNNEN, 333 U.S. 591, 601-602. 

ACCORDINGLY, THE WRIT OF CERTIORARI IS GRANTED, AND THE JUDGMENT OF
THE COURT OF APPEALS IS REVERSED.  IT IS SO ORDERED. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE STEWART JOINS,
CONCURRING. 

I AGREE WITH THE COURT THAT THIS CASE IS CLEARLY CONTROLLED BY OUR
RECENT DECISION IN CALIFORNIA V. LO-VACA GATHERING CO., ANTE, P. 366,
AND THUS JOIN THE OPINION AND JUDGMENT OF THE COURT.  I CONCUR,
HOWEVER, IN ORDER TO MAKE EXPLICIT MY UNDERSTANDING OF THE RATIONALE OF
THE COURT'S DECISION IN THIS CASE. 

AT THE TIME OF THIS ACTION, RESPONDENTS, AS IN LO-VACA, ATTRIBUTED TO
THEMSELVES A GREATER PERCENTAGE OF SO-CALLED NONJURISDICTIONAL GAS THAN
THEIR PROPORTIONATE SHARE OF THE GAS IN THE COMMINGLED STREAM.*  THUS,
HERE, AS IN LO-VACA, WE NEED NOT AND DO NOT REACH THE ISSUE OF WHETHER
"IN SPITE OF ORIGINAL COMMINGLING THERE MIGHT BE A SEPARATE SO-CALLED
NONJURISDICTIONAL TRANSACTION OF A PRECISE AMOUNT OF GAS  ...  ."  379
U.S., AT 370. 

*SOME YEARS PRIOR TO THIS ACTION AMERADA-SIGNAL CLAIMED NO MORE THAN
ITS PROPORTIONATE SHARE, AND UNDER THESE CIRCUMSTANCES THE FPC
DISCLAIMED JURISDICTION.  SEE NORTH DAKOTA V. FPC, 247 F.2D 173 (C.A.
8TH CIR. 1957).  THE FACT THAT THE AMOUNT CLAIMED BY RESPONDENTS AT THE
TIME OF THIS ACTION EXCEEDS AMERADA-SIGNAL'S PROPORTIONATE SHARE IS DUE
TO THE ADDITION OF NEW SOURCES OF SUPPLY TO THE COMMINGLED STREAM. 
THIS CHANGE, STANDING ALONE, MAKES INAPPLICABLE ANY DOCTRINE OF
COLLATERAL ESTOPPEL BASED ON THE FPC'S DISCLAIMER OR THE COURT OF
APPEAL'S AFFIRMANCE IN NORTH DAKOTA V. FPC, SUPRA. 

MR. JUSTICE HARLAN: YIELDING TO THE COURT'S VIEW THAT THE CASE-BY
CASE APPROACH IS AN ACCEPTABLE METHOD OF PROCEDURE IN THIS AREA OF THE
COMMISSION'S FUNCTIONS (SEE THE COURT'S OPINION IN THE LO-VACA CASE AT
366 AND MY DISSENTING OPINION THEREIN AT 371), I JOIN THE CONCURRING
OPINION OF MY BROTHER GOLDBERG. 
..END :
















HEARNE V. SMYLIE 379 U.S. 692 


NO. 617.  DECIDED FEBRUARY 1, 1965 - CAUSE CONTINUED. 


HEARNE ET AL. V. SMYLIE, GOVERNOR OF IDAHO, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
IDAHO. 

PER CURIAM. 

THIS CAUSE IS CONTINUED ON THE DOCKET UNTIL THE COURT CONFERENCE OF
MAY 21, 1965, BEFORE WHICH TIME THE PARTIES ARE ASKED TO ADVISE THE
COURT BY SUPPLEMENTAL BRIEFS AS TO THE PROGRESS MADE IN REAPPORTIONING
THE IDAHO LEGISLATURE. 
..END :















FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO V. LUCAS 379 U.S. 693 


NO. 661.  DECIDED FEBRUARY 1, 1965.  - REPORTED BELOW:  232 F. SUPP.
797. 


JUDGMENT WITH RESPECT TO FEDERAL QUESTIONS AFFIRMED; JUDGMENT WITH
RESPECT TO OTHER QUESTIONS VACATED AND CAUSE REMANDED. 

FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO ET AL. V. LUCAS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO. 

PER CURIAM. 

INSOFAR AS THE JUDGMENT OF THE DISTRICT COURT DECIDES FEDERAL
QUESTIONS, IT IS AFFIRMED.  INSOFAR AS THE JUDGMENT DECIDES OTHER
QUESTIONS, IT IS VACATED AND THE CAUSE IS REMANDED FOR FURTHER
CONSIDERATION IN LIGHT OF THE SUPERVENING DECISION OF THE COLORADO
SUPREME COURT IN WHITE V. ANDERSON, - COLO. - , 394 P.2D 333 (1964). 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE STEWART, AND MR.
JUSTICE GOLDBERG, CONCURRING. 

IT IS OUR UNDERSTANDING THAT THE COURT'S DISPOSITION OF THIS CASE
LEAVES IT OPEN TO THE DISTRICT COURT TO ABSTAIN ON THE QUESTION AS TO
THE SEVERABILITY OF THE VARIOUS PROVISIONS OF AMENDMENT NO. 7, PENDING
RESOLUTION OF THAT ISSUE WITH REASONABLE PROMPTITUDE IN FURTHER STATE
COURT PROCEEDINGS.  WE DEEM IT APPROPRIATE EXPLICITLY TO STATE OUR VIEW
THAT THIS IS THE COURSE WHICH THE DISTRICT COURT SHOULD FOLLOW.  ON
THIS BASIS, WE JOIN THE COURT'S OPINION. 
..END :




















HUGHES V. WMCA 379 U.S. 694 


NO. 623.  DECIDED FEBRUARY 1, 1965* - AFFIRMED. 

*TOGETHER WITH NO. 718, DAVIS, SECRETARY, STATE BOARD OF ELECTIONS,
ET AL. V. MANN ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA. 


HUGHES ET AL. V. WMCA, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENTS ARE AFFIRMED. 

MR. JUSTICE WHITE AND MR. JUSTICE GOLDBERG JOIN THE AFFIRMANCE IN NO.
623 SINCE IT IS THEIR UNDERSTANDING THAT IT IN NO WAY INTERFERES WITH
THE POWER OF THE DISTRICT COURT, IN THE LIGHT OF CIRCUMSTANCES AS THEY
MAY DEVELOP, TO VACATE OR OTHERWISE MODIFY ITS ORDER REQUIRING AN
ELECTION IN THE FALL OF 1965. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

BOTH OF THESE CASES, TODAY AFFIRMED SUMMARILY BY THE COURT, RAISE
SERIOUS PROBLEMS CONCERNING THE SCOPE OF THE DISCRETION OF A FEDERAL
COURT TO FASHION INTERIM RELIEF IN STATE REAPPORTIONMENT CASES, MATTERS
NOT HITHERTO DECIDED BY THIS COURT. 

                                   NO. 623. 

THE NEW YORK CONSTITUTION, ART. III, SEC. 2, PROVIDES THAT THE STATE
LEGISLATURE WILL BE ELECTED EVERY TWO YEARS, SERVING FOR TWO ANNUAL
SESSIONS.  BETWEEN SESSIONS THE LEGISLATURE NORMALLY WORKS IN
COMMITTEE, CONDUCTING HEARINGS AND DRAFTING REPORTS TO BE SUBMITTED AT
THE FOLLOWING SESSION.  IN WMCA, INC. V. LOMENZO, 377 U.S. 633, THIS
COURT HELD THAT THE NEW YORK LEGISLATIVE APPORTIONMENT FORMULA INVALID
UNDER THE FOURTEENTH AMENDMENT, AND REMANDED THE CAUSE TO THE DISTRICT
COURT FOR APPROPRIATE RELIEF.  AMONG OTHER THINGS, THE COURT AUTHORIZED
THE DISTRICT COURT IN ITS DISCRETION TO PERMIT THE NOVEMBER 1964
ELECTIONS TO PROCEED UNDER THE INVALIDATED APPORTIONMENT "IN ORDER TO
GIVE THE NEW YORK LEGISLATURE AN OPPORTUNITY TO FASHION A
CONSTITUTIONALLY VALID LEGISLATIVE APPORTIONMENT PLAN  ...  ."  377
U.S., AT 655. 

THE DISTRICT COURT, ON JULY 27, 1964, ENTERED A DECREE PERMITTING THE
NOVEMBER 1964 ELECTIONS TO BE CONDUCTED UNDER THE INVALIDATED PLAN, BUT
LIMITING THE TERM OF THE LEGISLATURE TO ONE YEAR.  THE DECREE ALSO
ORDERED THAT AN ELECTION BE HELD IN NOVEMBER 1965 UNDER A VALID
APPORTIONMENT PLAN, TO BE ENACTED BY THE LEGISLATURE BY APRIL 1, 1965,*
AND THAT THE LEGISLATURE ELECTED IN 1965 WOULD ALSO SERVE FOR ONLY ONE
YEAR SO THAT THE NOVEMBER 1966 ELECTION WOULD BE HELD AS SCHEDULED BY
STATE LAW.  AS A RESULT OF THIS ORDER NEW YORK WILL HAVE TO CONDUCT
THREE ELECTIONS IN AS MANY YEARS, AND FORGO THE NORMAL WORK OF THE
LEGISLATURE BETWEEN SESSIONS. 

*SUCH A PLAN, ENACTED BY THE NEW YORK LEGISLATURE, HAS RECENTLY BEEN
APPROVED BY THE DISTRICT COURT. 

                                   NO. 718. 

VIRGINIA ELECTS ITS LOWER HOUSE, THE HOUSE OF DELEGATES, EVERY TWO
YEARS TO SERVE FOR ONE BIENNIAL SESSION OF THE GENERAL ASSEMBLY.  THE
SENATE IS ELECTED FOR FOUR YEARS TO SERVE DURING TWO SESSIONS OF THE
GENERAL ASSEMBLY WHICH ARE HELD EACH JANUARY FOLLOWING THE ELECTION OF
THE HOUSE OF DELEGATES.  IN NOVEMBER 1962 THE DISTRICT COURT HELD THE
VIRGINIA APPORTIONMENT OF BOTH HOUSES UNCONSTITUTIONAL, AND ENJOINED
ANY FURTHER ELECTIONS UNDER THE INVALIDATED PLAN.  PENDING APPEAL TO
THIS COURT, THE CHIEF JUSTICE STAYED THE INJUNCTION OF THE DISTRICT
COURT, AND THE 1963 ELECTIONS WERE HELD UNDER THE INVALIDATED PLAN. 
AFTER THE DISTRICT COURT WAS AFFIRMED ON THE MERITS, DAVIS V. MANN, 377
U.S. 678, THAT COURT ENTERED A DECREE ON SEPTEMBER 18, 1964, DIRECTING
THE GENERAL ASSEMBLY TO REAPPORTION IN TIME FOR THE NOVEMBER 1965
ELECTION OF THE HOUSE OF DELEGATES, AND ORDERED FURTHER THAT A SPECIAL
ELECTION BE HELD AT THE SAME TIME TO ELECT A PROPERLY APPORTIONED
SENATE TO SERVE FOR TWO YEARS.  THUS THE PRESENT SENATE, ELECTED IN
NOVEMBER 1963 TO SERVE FOUR YEARS, HAS BEEN LIMITED TO A TWO-YEAR TERM,
AND THE SENATE TO BE ELECTED NEXT NOVEMBER WILL ALSO BE SO LIMITED. 

THE ORDERS OF THE DISTRICT COURTS ENTERED IN THESE TWO CASES PRESENT
FOR ME IMPORTANT QUESTIONS WHICH DESERVE PLENARY CONSIDERATION BY THIS
COURT.  I WOULD NOTE PROBABLE JURISDICTION IN BOTH CASES AND SET THEM
FOR ARGUMENT ON THE EARLIEST PRACTICABLE DATE AT THE NEXT ARGUMENT
SESSION OF THE COURT COMMENCING MARCH 1. 
..END :











TEXAS V. NEW JERSEY 380 U.S. 518 


NO. 13, ORIGINAL.  DECIDED FEBRUARY 1, 1965.  - DECREE ENTERED APRIL 26,
1965.  - DECREE CARRYING INTO EFFECT THIS COURT'S OPINION OF FEBRUARY
1, 1965, 379 U.S. 674. 


TEXAS V. NEW JERSEY ET AL.

FINAL DECREE. 

THIS CAUSE HAVING COME ON TO BE HEARD ON THE REPORT OF THE SPECIAL
MASTER HERETOFORE APPOINTED BY THE COURT, AND THE EXCEPTIONS FILED
THERETO, AND HAVING BEEN ARGUED BY COUNSEL FOR THE SEVERAL PARTIES, AND
THIS COURT HAVING STATED ITS CONCLUSIONS IN ITS OPINION ANNOUNCED ON
FEBRUARY 1, 1965, 379 U.S. 674, AND HAVING CONSIDERED THE POSITIONS OF
THE RESPECTIVE PARTIES AS TO THE TERMS OF THE DECREE: 

IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 

1.  EACH ITEM OF PROPERTY IN QUESTION IN THIS CASE AS TO WHICH A LAST
KNOWN ADDRESS OF THE PERSON ENTITLED THERETO IS SHOWN ON THE BOOKS AND
RECORDS OF DEFENDANT SUN OIL COMPANY IS SUBJECT TO ESCHEAT OR CUSTODIAL
TAKING ONLY BY THE STATE OF THAT LAST-KNOWN ADDRESS, AS SHOWN ON THE
BOOKS AND RECORDS OF DEFENDANT SUN OIL COMPANY, TO THE EXTENT OF THAT
STATE'S POWER UNDER ITS OWN LAWS TO ESCHEAT OR TO TAKE CUSTODIALLY. 

2.  EACH ITEM OF PROPERTY IN QUESTION IN THIS CASE AS TO WHICH THERE
IS NO ADDRESS OF THE PERSON ENTITLED THERETO SHOWN ON THE BOOKS AND
RECORDS OF DEFENDANT SUN OIL COMPANY IS SUBJECT TO ESCHEAT OR CUSTODIAL
TAKING ONLY BY NEW JERSEY, THE STATE IN WHICH SUN OIL COMPANY WAS
INCORPORATED, TO THE EXTENT OF NEW JERSEY'S POWER UNDER ITS OWN LAWS TO
ESCHEAT OR TO TAKE CUSTODIALLY, SUBJECT TO THE RIGHT OF ANY OTHER STATE
TO RECOVER SUCH PROPERTY FROM NEW JERSEY UPON PROOF THAT THE LAST-KNOWN
ADDRESS OF THE CREDITOR WAS WITHIN THAT OTHER STATE'S BORDERS. 

3.  EACH ITEM OF PROPERTY IN QUESTION IN THIS CASE AS TO WHICH THE
LAST-KNOWN ADDRESS OF THE PERSON ENTITLED THERETO AS SHOWN ON THE BOOKS
AND RECORDS OF DEFENDANT SUN OIL COMPANY IS IN A STATE, THE LAWS OF
WHICH DO NOT PROVIDE FOR THE ESCHEAT OF SUCH PROPERTY, IS SUBJECT TO
ESCHEAT OR CUSTODIAL TAKING ONLY BY NEW JERSEY, THE STATE IN WHICH SUN
OIL COMPANY WAS INCOPRORATED, TO THE EXTENT OF NEW JERSEY'S POWER UNDER
ITS OWN LAWS TO ESCHEAT OR TO TAKE CUSTODIALLY, SUBJECT TO THE RIGHT OF
THE STATE OF THE LAST-KNOWN ADDRESS TO RECOVER THE PROPERTY FROM NEW
JERSEY IF AND WHEN THE LAW OF THE STATE OF THE LAST-KNOWN ADDRESS MAKES
PROVISION FOR ESCHEAT OR CUSTODIAL TAKING OF SUCH PROPERTY. 

4.  ANY RELIEF PRAYED FOR BY ANY PARTY TO THIS ACTION WHICH IS NOT
HEREBY GRANTED IS DENIED. 
..END :




REPUBLIC STEEL V. MADDOX 379 U.S. 650 


NO. 43.  ARGUED NOVEMBER 18, 1964.  - DECIDED JANUARY 25, 1965.  - 275
ALA. 685, 158 SO. 2D 492, REVERSED. 


RESPONDENT EMPLOYEE SUED HIS EMPLOYER FOR SEVERANCE PAY UNDER A
COLLECTIVE BARGAINING AGREEMENT EXISTING BETWEEN HIS UNION AND
EMPLOYER, WHICH WAS SUBJECT TO THE LABOR MANAGEMENT RELATIONS ACT
(LMRA).  JUDGMENT FOR RESPONDENT WAS AFFIRMED IN THE STATE COURTS ON
THE GROUND THAT THE STATE LAW DID NOT REQUIRE HIM TO EXHAUST CONTRACT
GRIEVANCE PROCEDURES BEFORE SUIT, WHICH HE HAD NOT DONE.  HELD:  UNDER
FEDERAL POLICY REFLECTED IN THE LMRA, CONTRACT GRIEVANCE PROCEDURES,
WHICH APPLY TO SEVERANCE AS WELL AS OTHER TYPES OF CLAIMS, MUST, UNLESS
SPECIFIED AS NONEXCLUSIVE, BE EXHAUSTED BEFORE DIRECT LEGAL REDRESS IS
SOUGHT.  MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630, AND
TRANSCONTINENTAL & WESTERN AIR, INC. V. KOPPAL, 345 U.S. 653,
DISTINGUISHED.  PP. 652-659. 

REPUBLIC STEEL CORP. V. MADDOX. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT MADDOX BROUGHT SUIT IN AN ALABAMA STATE COURT AGAINST HIS
EMPLOYER, THE REPUBLIC STEEL CORPORATION, FOR SEVERANCE PAY AMOUNTING
TO $694.08, ALLEGEDLY OWED HIM UNDER THE TERMS OF THE COLLECTIVE
BARGAINING AGREEMENT EXISTING BETWEEN REPUBLIC AND MADDOX' UNION. 
MADDOX HAD BEEN LAID OFF IN DECEMBER 1953.  THE COLLECTIVE BARGAINING
AGREEMENT CALLED FOR SEVERANCE PAY IF THE LAYOFF WAS THE RESULT OF A
DECISION TO CLOSE THE MINE, AT WHICH MADDOX WORKED, "PERMANENTLY." 
(FN1)  THE AGREEMENT ALSO CONTAINED A THREE-STEP GRIEVANCE PROCEDURE TO
BE FOLLOWED BY BINDING ARBITRATION, (FN2) BUT MADDOX MADE NO EFFORT TO
UTILIZE THIS MODE OF REDRESS.  INSTEAD, IN AUGUST 1956, HE SUED FOR
BREACH OF THE CONTRACT.  AT ALL TIMES MATERIAL TO HIS CLAIM, REPUBLIC
WAS ENGAGED IN INTERSTATE COMMERCE WITHIN THE MEANING OF THE LABOR
MANAGEMENT RELATIONS ACT, (FN3) AND REPUBLIC'S INDUSTRIAL RELATIONS
WITH MADDOX AND HIS UNION WERE SUBJECT TO THE PROVISIONS OF THAT ACT. 

THE CASE WAS TRIED ON STIPULATED FACTS WITHOUT A JURY.  JUDGMENT WAS
AWARDED IN FAVOR OF MADDOX, AND THE APPELLATE COURTS OF ALABAMA
AFFIRMED ON THE THEORY THAT STATE LAW APPLIES TO SUITS FOR SEVERANCE
PAY SINCE, WITH THE EMPLOYMENT RELATIONSHIP NECESSARILY ENDED, NO
FURTHER DANGER OF INDUSTRIAL STRIFE EXISTS WARRANTING THE APPLICATION
OF FEDERAL LABOR LAW.  (FN4)  MOORE V. ILLINOIS CENTRAL R. CO., 312
U.S. 630 (1941), AND TRANSCONTINENTAL & WESTERN AIR, INC. V. KOPPAL,
345 U.S. 653 (1953), CASES DECIDED UNDER THE RAILWAY LABOR ACT, (FN5)
WERE CITED TO SUPPORT THE PROPOSITION.  FURTHERMORE, IT WAS HELD THAT
UNDER ALABAMA LAW MADDOX WAS NOT REQUIRED TO EXHAUST THE CONTRACT
GRIEVANCE PROCEDURES.  WE GRANTED REPUBLIC'S PETITION FOR CERTIORARI,
377 U.S. 904, TO DETERMINE WHETHER THE RATIONALE OF MOORE V. ILLINOIS
CENTRAL R. CO. CARRIES OVER TO A SUIT FOR SEVERANCE PAY ON A CONTRACT
SUBJECT TO SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT.  (FN6)
WE CONCLUDE THAT THE STATE JUDGMENT MUST BE REVERSED. 

                                I. 

AS A GENERAL RULE IN CASES TO WHICH FEDERAL LAW APPLIES, FEDERAL
LABOR POLICY REQUIRES THAT INDIVIDUAL EMPLOYEES WISHING TO ASSERT
CONTRACT GRIEVANCES MUST ATTEMPT USE OF THE CONTRACT GRIEVANCE
PROCEDURE AGREED UPON BY EMPLOYER AND UNION AS THE MODE OF REDRESS. 
(FN7)  IF THE UNION REFUSES TO PRESS OR ONLY PERFUNCTORILY PRESSES THE
INDIVIDUAL'S CLAIM, DIFFERENCES MAY ARISE AS TO THE FORMS OF REDRESS
THEN AVAILABLE.  SEE HUMPHREY V. MOORE, 375 U.S. 335; LABOR BOARD V.
MIRANDA FUEL CO., 326 F.2D 172.  (FN8)  BUT UNLESS THE CONTRACT
PROVIDES OTHERWISE, (FN9) THERE CAN BE NO DOUBT THAT THE EMPLOYEE MUST
AFFORD THE UNION THE OPPORTUNITY TO ACT ON HIS BEHALF.  CONGRESS HAS
EXPRESSLY APPROVED CONTRACT GRIEVANCE PROCEDURES AS A PREFERRED METHOD
FOR SETTLING DISPUTES AND STABILIZING THE "COMMON LAW" OF THE PLANT. 
LMRA SEC. 203(D), 29 U.S.C. SEC. 173(D); SEC. 201(C), 29 U.S.C. SEC.
171(C) (1958 ED.).  UNION INTEREST IN PROSECUTING EMPLOYEE GRIEVANCES
IS CLEAR.  SUCH ACTIVITY COMPLEMENTS THE UNION'S STATUS AS EXCLUSIVE
BARGAINING REPRESENTATIVE BY PERMITTING IT TO PARTICIPATE ACTIVELY IN
THE CONTINUING ADMINISTRATION OF THE CONTRACT.  IN ADDITION,
CONSCIENTIOUS HANDLING OF GRIEVANCE CLAIMS WILL ENHANCE THE UNION'S
PRESTIGE WITH EMPLOYEES.  EMPLOYER INTERESTS, FOR THEIR PART, ARE
SERVED BY LIMITING THE CHOICE OF REMEDIES AVAILABLE TO AGGRIEVED
EMPLOYEES.  AND IT CANNOT BE SAID, IN THE NORMAL SITUATION, THAT
CONTRACT GRIEVANCE PROCEDURES ARE INADEQUATE TO PROTECT THE INTERESTS
OF AN AGGRIEVED EMPLOYEE UNTIL THE EMPLOYEE HAS ATTEMPTED TO IMPLEMENT
THE PROCEDURES AND FOUND THEM SO. 

A CONTRARY RULE WHICH WOULD PERMIT AN INDIVIDUAL EMPLOYEE TO
COMPLETELY SIDESTEP AVAILABLE GRIEVANCE PROCEDURES IN FAVOR OF A
LAWSUIT HAS LITTLE TO COMMEND IT.  IN ADDITION TO CUTTING ACROSS THE
INTERESTS ALREADY MENTIONED, IT WOULD DEPRIVE EMPLOYER AND UNION OF THE
ABILITY TO ESTABLISH A UNIFORM AND EXCLUSIVE METHOD FOR ORDERLY
SETTLEMENT OF EMPLOYEE GRIEVANCES.  IF A GRIEVANCE PROCEDURE CANNOT BE
MADE EXCLUSIVE, IT LOSES MUCH OF ITS DESIRABILITY AS A METHOD OF
SETTLEMENT.  A RULE CREATING SUCH A SITUATION "WOULD INEVITABLY EXERT A
DISRUPTIVE INFLUENCE UPON BOTH THE NEGOTIATION AND ADMINISTRATION OF
COLLECTIVE AGREEMENTS."  TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S.
95, 103. 

                                            II. 

ONCE IT IS ESTABLISHED THAT THE FEDERAL RULE DISCUSSED ABOVE APPLIES
TO GRIEVANCES IN GENERAL, IT SHOULD NEXT BE INQUIRED WHETHER THE
SPECIFIC TYPE OF GRIEVANCE HERE IN QUESTION - ONE RELATING TO SEVERANCE
PAY - IS SO DIFFERENT IN KIND AS TO JUSTIFY AN EXCEPTION.  MOORE V.
ILLINOIS CENTRAL R. CO., AND TRANSCONTINENTAL & WESTERN AIR, INC. V.
KOPPAL, SUPRA, ARE PUT FORWARD FOR THE PROPOSITION THAT IT IS. 

IN MOORE, THE COURT RULED THAT A TRAINMAN WAS NOT REQUIRED BY THE
RAILWAY LABOR ACT TO EXHAUST THE ADMINISTRATIVE REMEDIES GRANTED HIM BY
THE ACT BEFORE BRINGING SUIT FOR WRONGFUL DISCHARGE.  MR. JUSTICE
BLACK, FOR THE COURT, BASED THE DECISION ON THE USE OF PERMISSIVE
LANGUAGE IN THE ACT - DISPUTES "MAY BE REFERRED  ...  TO THE  ...
ADJUSTMENT BOARD  ...  ."  (FN10)  MR. JUSTICE BLACK WROTE AGAIN IN
SLOCUM V. DELAWARE, L.&W.R. CO., 339 U.S. 239 (1950), A DECLARATORY
JUDGMENT SUIT BROUGHT IN A STATE COURT BY A RAILROAD COMPANY AGAINST
TWO UNIONS TO RESOLVE A REPRESENTATION DISPUTE.  THE COURT HELD THAT
JURISDICTION OF THE ADJUSTMENT BOARD TO RESOLVE SUCH DISPUTES WAS
EXCLUSIVE.  MOORE WAS DISTINGUISHED THUS: 

"MOORE 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."  339 U.S. 239, AT 244. 

THIS DISTINCTION WAS CONFIRMED IN TRANSCONTINENTAL & WESTERN AIR,
INC. V. KOPPAL, SUPRA: 

"SUCH A WRONGFULLY DISCHARGED 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."  (FN11)
345 U.S. 653, AT 661. 

FEDERAL JURISDICTION IN BOTH MOORE AND KOPPAL WAS BASED ON DIVERSITY;
FEDERAL LAW WAS NOT THOUGHT TO APPLY MERELY BY REASON OF THE FACT THAT
THE COLLECTIVE BARGAINING AGREEMENTS WERE SUBJECT TO THE RAILWAY LABOR
ACT.  SINCE THAT TIME THE COURT HAS MADE IT CLEAR THAT SUBSTANTIVE
FEDERAL LAW APPLIES TO SUITS ON COLLECTIVE BARGAINING AGREEMENTS
COVERED BY SEC. 204 OF THE RAILWAY LABOR ACT, INTERNATIONAL ASSN. OF
MACHINISTS V. CENTRAL AIRLINES, INC., 372 U.S. 682, AND BY SEC. 301(A)
OF THE LMRA, TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448.  THUS A
MAJOR UNDERPINNING FOR THE CONTINUED VALIDITY OF THE MOORE CASE IN THE
FIELD OF THE RAILWAY LABOR ACT, AND MORE IMPORTANTLY IN THE PRESENT
CONTEXT, FOR THE EXTENSION OF ITS RATIONALE TO SUITS UNDER SEC. 301(A)
OF THE LMRA, HAS BEEN REMOVED. 

WE HOLD THAT ANY SUCH EXTENSION IS INCOMPATIBLE WITH THE PRECEPTS OF
LINCOLN MILLS AND CANNOT BE ACCEPTED.  GRIEVANCES DEPENDING ON
SEVERANCE CLAIMS ARE NOT CRITICALLY UNLIKE OTHER TYPES OF GRIEVANCES. 
ALTHOUGH IT IS TRUE THAT THE EMPLOYEE ASSERTING THE CLAIM WILL
NECESSARILY HAVE ACCEPTED HIS DISCHARGE AS FINAL, IT DOES NOT FOLLOW
THAT THE RESOLUTION OF HIS CLAIM CAN HAVE NO EFFECT ON FUTURE RELATIONS
BETWEEN THE EMPLOYER AND OTHER EMPLOYEES.  SEVERANCE PAY AND OTHER
CONTRACT TERMS GOVERNING DISCHARGE ARE OF OBVIOUS CONCERN TO ALL
EMPLOYEES, AND A POTENTIAL CAUSE OF DISPUTE SO LONG AS ANY EMPLOYEE
MAINTAINS A CONTINUING EMPLOYMENT RELATIONSHIP.  ONLY IN THE SITUATION
IN WHICH NO EMPLOYEES REPRESENTED BY THE UNION REMAIN EMPLOYED, AS
WOULD BE THE CASE WITH A FINAL AND PERMANENT PLANT SHUTDOWN, IS THERE
NO POSSIBILITY OF A WORK STOPPAGE RESULTING FROM A SEVERANCE-PAY
CLAIM.  BUT EVEN IN THAT NARROW SITUATION, IF APPLICABLE LAW DID NOT
REQUIRE RESORT TO CONTRACT PROCEDURES, THE INABILITY OF THE UNION AND
EMPLOYER AT THE CONTRACT NEGOTIATION STAGE TO AGREE UPON ARBITRATION AS
THE EXCLUSIVE METHOD OF HANDLING PERMANENT SHUTDOWN SEVERANCE CLAIMS IN
ALL SITUATIONS COULD HAVE AN INHIBITING EFFECT ON REACHING AN
AGREEMENT.  IF APPLICABLE LAW PERMITTED A COURT SUIT FOR SEVERANCE PAY
IN ANY CIRCUMSTANCES WITHOUT PRIOR RECOURSE TO AVAILABLE CONTRACT
REMEDIES, AN EMPLOYER SEEKING TO LIMIT THE MODES OF REDRESS THAT COULD
BE USED AGAINST HIM COULD DO SO ONLY BY ELIMINATING CONTRACT GRIEVANCE
PROCEDURES FOR SEVERANCE-PAY CLAIMS.  THE UNION WOULD HARDLY FAVOR THE
ELIMINATION, FOR IT IS IN THE UNION'S INTEREST TO AFFORD COMPREHENSIVE
PROTECTION TO THOSE IT REPRESENTS, TO PARTICIPATE IN INTERPRETATIONS OF
THE CONTRACT, AND TO HAVE AN ARBITRATOR RATHER THAN A COURT DECIDE SUCH
QUESTIONS AS WHETHER THE COMPANY HAS DETERMINED TO "CLOSE
PERMANENTLY."  (FN12) 

THERE ARE, THEN, POSITIVE REASONS WHY THE GENERAL FEDERAL RULE SHOULD
GOVERN GRIEVANCES BASED ON SEVERANCE CLAIMS AS IT DOES OTHERS. 
FURTHERMORE, NO POSITIVE REASONS APPEAR WHY THE GENERAL FEDERAL RULE
SHOULD NOT APPLY.  "COMPREHENSIVENESS IS INHERENT IN THE PROCESS BY
WHICH THE LAW IS TO BE FORMULATED UNDER THE MANDATE OF LINCOLN MILLS,"
AND "THE SUBJECT MATTER OF SEC. 301(A) 'IS PECULIARLY ONE THAT CALLS
FOR UNIFORM LAW.'"  TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S., AT
103.   MADDOX' SUIT IN THE PRESENT CASE IS SIMPLY ON THE CONTRACT, AND
THE REMEDY SOUGHT, AWARD OF $694.08, DID NOT DIFFER FROM ANY THAT THE
GRIEVANCE PROCEDURE HAD POWER TO PROVIDE.  FEDERAL LAW GOVERNS "SUITS
FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION
REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE AS DEFINED IN
THIS CHAPTER  ...  ."  (FN13)  SECTION 301(A) OF THE LMRA, 29 U.S.C.
SEC. 185(A) (1958 ED.), TEXTILE WORKERS V. LINCOLN MILLS, SUPRA.  THE
SUIT BY MADDOX CLEARLY FALLS WITHIN THE TERMS OF THE STATUTE AND WITHIN
THE PRINCIPLES OF LINCOLN MILLS, AND BECAUSE WE SEE NO REASON FOR
CREATING AN EXCEPTION, WE CONCLUDE THAT THE GENERAL FEDERAL RULE
APPLIES.  (FN14)

                                           III. 

THE FEDERAL RULE WOULD NOT OF COURSE PRECLUDE MADDOX' COURT SUIT IF
THE PARTIES TO THE COLLECTIVE BARGAINING AGREEMENT EXPRESSLY AGREED
THAT ARBITRATION WAS NOT THE EXCLUSIVE REMEDY.  (FN15)  THE SECTION OF
THIS CONTRACT GOVERNING GRIEVANCES PROVIDES, INTER ALIA: 

"IT IS THE PURPOSE OF THIS SECTION TO PROVIDE PROCEDURE FOR PROMPT,
EQUITABLE ADJUSTMENT OF CLAIMED GRIEVANCES.  IT IS UNDERSTOOD AND
AGREED THAT UNLESS OTHERWISE SPECIFICALLY SPECIFIED ELSEWHERE IN THIS
AGREEMENT GRIEVANCES TO BE CONSIDERED HEREUNDER MUST BE FILED WITHIN
THIRTY DAYS AFTER THE DATE ON WHICH THE FACT OR EVENTS UPON WHICH SUCH
ALLEGED GRIEVANCE IS BASED SHALL HAVE EXISTED OR OCCURRED. 

     * *         *         *         * 

"ANY EMPLOYEE WHO HAS A COMPLAINT MAY DISCUSS THE ALLEGED COMPLAINT
WITH HIS FOREMAN IN AN ATTEMPT TO SETTLE IT.  ANY COMPLAINT NOT SO
SETTLED SHALL CONSTITUTE A GRIEVANCE WITHIN THE MEANING OF THIS

"GRIEVANCES SHALL BE HANDLED IN THE FOLLOWING MANNER: 

"STEP 1.  BETWEEN THE AGGRIEVED EMPLOYEE, HIS GRIEVANCE COMMITTEEMAN
OR ASSISTANT GRIEVANCE COMMITTEEMAN AND THE FOREMAN." 

THE PROCEDURE CALLS FOR TWO MORE GRIEVANCE-COMMITTEE STEPS CAPPED
WITH BINDING ARBITRATION OF MATTERS NOT SATISFACTORILY SETTLED BY THE
INITIAL STEPS. 

THE LANGUAGE STATING THAT AN EMPLOYEE "MAY DISCUSS" A COMPLAINT WITH
HIS FOREMAN IS SUSCEPTIBLE TO VARIOUS INTERPRETATIONS; THE MOST LIKELY
IS THAT AN EMPLOYEE MAY, IF HE CHOOSES, SPEAK TO HIS FOREMAN HIMSELF
WITHOUT BRINGING IN HIS GRIEVANCE COMMITTEEMAN AND FORMALLY EMBARKING
ON STEP 1.  USE OF THE PERMISSIVE "MAY" DOES NOT OF ITSELF REVEAL A
CLEAR UNDERSTANDING BETWEEN THE CONTRACTING PARTIES THAT INDIVIDUAL
EMPLOYEES, UNLIKE EITHER THE UNION OR THE EMPLOYER, ARE FREE TO AVOID
THE CONTRACT PROCEDURE AND ITS TIME LIMITATIONS IN FAVOR OF A JUDICIAL
SUIT.  ANY DOUBTS MUST BE RESOLVED AGAINST SUCH AN INTERPRETATION.  SEE
UNITED STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574;
BELK V. ALLIED AVIATION SERVICE CO., 315 F.2D 513, CERT. DENIED, 375
U.S. 847. 

FINALLY, MADDOX SUGGESTS THAT IT WAS NOT POSSIBLE FOR HIM TO MAKE USE
OF THE GRIEVANCE PROCEDURE, THE FIRST STEP OF WHICH CALLED FOR A
DISCUSSION WITHIN 30 DAYS OF HIS DISCHARGE WITH HIS FOREMAN, BECAUSE A
MINE THAT HAS PERMANENTLY CLOSED HAS NO FOREMAN - INDEED, NO EMPLOYEES
OF ANY KIND.  THIS CASUISTIC READING OF THE CONTRACT CANNOT BE
ACCEPTED.  THE FOREMAN DID NOT VANISH; AND IT IS UNLIKELY THAT THE
UNION GRIEVANCE PROCEDURE BROKE DOWN WITHIN 30 DAYS OF MADDOX'
DISCHARGE.  IN ANY EVENT, THE CASE IS BEFORE US ON STIPULATED FACTS; IN
NEITHER THE FACTS NOR THE PLEADINGS IS THERE ANY SUGGESTION THAT MADDOX
COULD NOT HAVE AVAILED HIMSELF OF THE GRIEVANCE PROCEDURE INSTEAD OF
WAITING NEARLY THREE YEARS AND BRINGING A COURT SUIT.  REVERSED.    FN1
THE SECTION OF THE CONTRACT DEALING WITH SEVERANCE ALLOWANCE PROVIDED
IN RELEVANT PART: 

"WHEN, IN THE SOLE JUDGMENT OF THE COMPANY, IT DECIDES TO CLOSE
PERMANENTLY A PLANT OR DISCONTINUE PERMANENTLY A DEPARTMENT OF A MINE
OR PLANT, OR SUBSTANTIAL PORTION THEREOF AND TERMINATE THE EMPLOYMENT
OF INDIVIDUALS, AN EMPLOYEE WHOSE EMPLOYMENT IS TERMINATED EITHER
DIRECTLY AS A RESULT THEREOF BECAUSE HE WAS NOT ENTITLED TO OTHER
EMPLOYMENT WITH THE COMPANY UNDER THE PROVISIONS OF SECTION 9 OF THIS
AGREEMENT - SENIORITY AND SUBSECTION C OF THIS SECTION 14, SHALL BE
ENTITLED TO A SEVERANCE ALLOWANCE IN ACCORDANCE WITH AND SUBJECT TO THE
PROVISIONS HEREINAFTER SET FORTH IN THIS SECTION 14." 

FN2  SEE INFRA, P. 658. 

FN3  61 STAT. 136 (1947), AS AMENDED, 29 U.S.C. SEC. 141 ET SEQ.
(1958 ED.). 

FN4  275 ALA. 685, 158 SO. 2D 492. 

FN5  48 STAT. 1185 (1934), 45 U.S.C. SEC. 151 ET SEQ. (1958 ED.). 

FN6  SEE INFRA, P. 657. 

FN7  SMITH V. EVENING NEWS ASSN., 371 U.S. 195, 196, N. 1 (BY
IMPLICATION); BELK V. ALLIED AVIATION SERVICE CO., 315 F.2D 513, CERT.
DENIED, 375 U.S. 847; SEE COX, RIGHTS UNDER A LABOR AGREEMENT, 69 HARV.
L. REV. 601, 647-648 (1956).  THE PROVISO OF SEC. 9(A) OF THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED, 29 U.S.C. SEC. 159(A) (1958 ED.), IS
NOT CONTRA; BLACK-CLAWSON CO. V. MACHINISTS, 313 F.2D 179. 

FN8  SEE, E.G., SUMMERS, INDIVIDUAL RIGHTS IN COLLECTIVE AGREEMENTS
AND ARBITRATION, 37 N.Y.U.L. REV. 362 (1962); COX, RIGHTS UNDER A LABOR
AGREEMENT, 69 HARV. L. REV. 601 (1956); NOTE, FEDERAL PROTECTION OF
INDIVIDUAL RIGHTS UNDER LABOR CONTRACTS, 73 YALE L.J. 1215 (1964). 

FN9  SEE INFRA, PP. 657-658. 

FN10  45 U.S.C. SEC. 153(I) (1958 ED.). 

FN11  MISSISSIPPI LAW, WHICH CONTROLLED IN MOORE V. ILLINOIS CENTRAL
R. CO., DID NOT REQUIRE EXHAUSTION (BUT SEE ILLINOIS CENTRAL R. CO. V.
BOLTON, 240 MISS.  195, 126 SO. 2D 524 (1961)).  MISSOURI LAW
CONTROLLED IN KOPPAL AND DID REQUIRE EXHAUSTION.  THE SUING EMPLOYEE
THEREFORE LOST. 

FN12  SEE N. 1, SUPRA. 

FN13  "BETWEEN" IN THE STATUTE REFERS TO "CONTRACTS," NOT "SUITS." 
SMITH V. EVENING NEWS ASSN., 371 U.S. 195, 200. 

FN14  BY REFUSING TO EXTEND MOORE V. ILLINOIS CENTRAL R. CO. TO SEC.
301 SUITS, WE DO NOT MEAN TO OVERRULE IT WITHIN THE FIELD OF THE
RAILWAY LABOR ACT.  CONSIDERATION OF SUCH ACTION SHOULD PROPERLY AWAIT
A CASE PRESENTED UNDER THE RAILWAY LABOR ACT IN WHICH THE VARIOUS
DISTINCTIVE FEATURES OF THE ADMINISTRATIVE REMEDIES PROVIDED BY THAT
ACT CAN BE APPRAISED IN CONTEXT, E.G., THE MAKE-UP OF THE ADJUSTMENT
BOARD, THE SCOPE OF REVIEW FROM MONETARY AWARDS, AND THE ABILITY OF THE
BOARD TO GIVE THE SAME REMEDIES AS COULD BE OBTAINED BY COURT SUIT. 

FN15  OF COURSE A COURT SUIT ON THE COLLECTIVE BARGAINING AGREEMENT
WOULD STILL BE GOVERNED BY FEDERAL LAW.  TEXTILE WORKERS V. LINCOLN
MILLS, 353 U.S. 448. 

MR. JUSTICE BLACK, DISSENTING. 

THIS IS AN ORDINARY, COMMON, RUN-OF-THE-MILL LAWSUIT FOR BREACH OF
CONTRACT BROUGHT BY RESPONDENT CHARLIE MADDOX, AN IRON MINER EMPLOYED
BY PETITIONER REPUBLIC STEEL, TO RECOVER $694.08 OF WAGES WHICH HE SAID
THE COMPANY OWED HIM.  THIS AMOUNT HE SAID WAS DUE BY THE TERMS OF A
CONTRACT MADE BETWEEN THE COMPANY AND THE UNION REPRESENTING WORKERS AT
THE MINE AT WHICH MADDOX WORKED, A CONTRACT WHICH PROVIDED THAT IF ANY
EMPLOYEE SHOULD BE DISCHARGED BECAUSE THE COMPANY "PERMANENTLY" CLOSED
THE MINE, HE SHOULD CONTINUE TO BE PAID THE AMOUNT OF HIS REGULAR WAGES
FOR A NUMBER OF WEEKS AFTER THE DISCHARGE.  THE MINE CLOSED DOWN,
MADDOX LOST HIS JOB, BUT THE COMPANY NEVERTHELESS REFUSED TO CONTINUE
TO PAY HIM THE WAGES HE SAID IT HAD OBLIGATED ITSELF TO PAY UNDER THE
CONTRACT.  TO COLLECT THE MONEY HE HIRED A LAWYER AND WENT TO COURT. 
THE TRIAL COURT IN ALABAMA AWARDED HIM THE $694.08 (THE STIPULATED
AMOUNT DUE, IF ANY) AND THE SUPREME COURT OF THE STATE AFFIRMED.  THIS
COURT NOW REVERSES.  IT HOLDS THAT BECAUSE THE CONTRACT, AGREED TO BY
THE UNION, PROVIDED FOR BINDING ARBITRATION OF ALL "GRIEVANCES,"
FEDERAL LAW HAS DEPRIVED MADDOX OF HIS RIGHT TO HIRE HIS OWN LAWYER AND
TO SUE IN A COURT OF LAW FOR THE BALANCE OF WAGES DUE, (FN1) AND HAS
INSTEAD LEFT HIM WITH ONLY THE REMEDIES SET OUT IN THE CONTRACT: A
LONG, INVOLVED GRIEVANCE PROCEDURE, CONTROLLED BY THE COMPANY AND THE
UNION, FOLLOWED BY COMPULSORY ARBITRATION, WITH HIS CLAIM PUT IN THE
HANDS OF UNION OFFICIALS AND UNION LAWYERS WHETHER HE WANTS THEM TO
HANDLE IT OR NOT. 

IN THUS DECIDING ON ITS OWN, OR DECIDING THAT CONGRESS SOMEHOW HAS
DECIDED, TO EXPAND APPARENTLY WITHOUT LIMIT THE KINDS OF CLAIMS SUBJECT
TO COMPULSORY ARBITRATION, TO INCLUDE EVEN WAGE CLAIMS, AND IN THUS
DEPRIVING INDIVIDUAL LABORERS OF THE RIGHT TO HANDLE THEIR WAGE CLAIMS
FOR THEMSELVES, TODAY'S DECISION OF THE COURT INTERPRETS FEDERAL LAW IN
A WAY THAT IS REVOLUTIONARY.  YET THE COURT DISPOSES OF THIS CASE AS
EASILY AS IT WOULD REACH THE CONCLUSION THAT 2 PLUS 2 EQUAL 4.  FIRST
THE COURT SAYS THAT THE CONTRACT BETWEEN THE UNION AND THE COMPANY
PROVIDES THAT A LABORER WHO WANTS TO ASSERT A "CONTRACT GRIEVANCE" IS
BOUND TO ATTEMPT TO USE THE CONTRACT GRIEVANCE PROCEDURE, WHICH
REQUIRES SEVERAL STAGES OF COMPANY-UNION MEETINGS, NEGOTIATIONS, ETC.,
(FN2) TO BE FOLLOWED BY SUBMITTING THE DISPUTE FOR FINAL DECISION TO AN
ARBITRATOR "APPOINTED BY MUTUAL AGREEMENT" OF THE UNION AND THE
COMPANY.  NEXT THE COURT LABELS MADDOX' CLAIM FOR WAGES DUE HIM A
"GRIEVANCE" - AND, INDEED, NO ONE WOULD DENY THAT MADDOX WAS UNHAPPY
ABOUT THE COMPANY'S FAILURE TO PAY HIM WHAT IT HAD PROMISED.  FINALLY
THE COURT, CITING AS ITS AUTHORITY SEC. 301(A) OF THE LABOR MANAGEMENT
RELATIONS ACT, (FN3) LAYS DOWN FOR THIS AND FUTURE CASES THE FLAT RULE
THAT NO MATTER WHAT HIS CONTRACTUAL CLAIM - OR "GRIEVANCE," AS THE
COURT PREFERS TO CALL IT - AN INDIVIDUAL LABORER, EVEN THOUGH NO LONGER
AN EMPLOYEE, HAS NO CHOICE BUT TO FOLLOW THE LONG, TIME-CONSUMING,
DISCOURAGING ROAD TO ARBITRATION SET OUT IN THE UNION-COMPANY CONTRACT,
INCLUDING HAVING THE UNION REPRESENT HIM WHETHER HE WANTS IT TO OR NOT
AND WHETHER OR NOT HE IS STILL IN ITS GOOD GRACES.  AND OF COURSE THE
COURT'S LOGIC LEADS IRRESISTIBLY TO THE CONCLUSION (ALTHOUGH IT HAS NOT
YET HAD OCCASION TO SAY SO) THAT IF INSTEAD OF SEEKING WAGES DUE ON
DISCHARGE AN EMPLOYEE WANTS TO SUE HIS EMPLOYER FOR UNPAID WAGES WHILE
HE IS STILL WORKING, HE CANNOT DO THAT EITHER, BUT MUST INSTEAD WAIT
UNTIL THE UNION PROCESSES HIS CLAIM THROUGH THE INTERMINABLE STAGES OF
"GRIEVANCE PROCEDURE" AND THEN TURNS HIM OVER TO THE ARBITRATOR, WHOM
HE DOES NOT WANT.  EMPLOYEES ARE THUS DENIED A JUDICIAL HEARING AND
STATE COURTS HAVE THEIR ANCIENT POWER TO TRY SIMPLE BREACH-OF-CONTRACT
CASES TAKEN AWAY FROM THEM - TAKEN AWAY, NOT BY CONGRESS, I THINK, BUT
BY THIS COURT.  TODAY'S HOLDING IS IN MY JUDGMENT COMPLETELY
UNPRECEDENTED, AND IS THE BRAINCHILD OF THIS COURT'S RECENT
CONSISTENTLY EXPRESSED PREFERENCE FOR ARBITRATION OVER LITIGATION IN
ALL TYPES OF CASES (FN4) AND FOR ACCOMMODATING THE WISHES OF EMPLOYERS
AND UNIONS IN ALL THINGS OVER THE DESIRES OF INDIVIDUAL WORKERS.  SINCE
I DO NOT BELIEVE THAT CONGRESS HAS PASSED ANY LAW WHICH JUSTIFIES ANY
INFERENCE AT ALL THAT WORKERS ARE BARRED FROM BRINGING AND COURTS FROM
DECIDING CASES LIKE THIS ONE, AND SINCE I AM NOT SURE THAT IT
CONSTITUTIONALLY COULD, IT IS IMPOSSIBLE FOR ME TO CONCUR IN THIS
DECISION. 

I THINK ONE CRUCIAL FLAW IN THE COURT'S LOGICAL PRESENTATION IS THAT
IT TREATS THINGS AS THE SAME WHICH ARE IN FACT DIFFERENT.  "GRIEVANCE"
IS A WORD OF MANY MEANINGS IN MANY CONTEXTS, AND YET THE COURT USES IT
WITHOUT ANY DISCRIMINATION AMONG THEM.  AS USED IN THE INDUSTRIAL FIELD
"GRIEVANCE" GENERALLY SIGNIFIES SOMETHING THAT HAS HAPPENED THAT IS
UNSATISFACTORY TO EMPLOYERS OR EMPLOYEES IN CONNECTION WITH THEIR
WORK.  FAILURE TO SETTLE SERIOUS AND WIDESPREAD GRIEVANCES HAS
SOMETIMES BROUGHT ABOUT INDUSTRIAL TENSIONS, STRIKES AND VIOLENCE,
OFTEN DISRUPTING THE PEACE AND DOING IRREPARABLE HARM TO THE ECONOMY OF
THE NATION.  IN ORDER TO TRY TO PREVENT SUCH WIDESPREAD DISASTROUS
RESULTS TO THE PUBLIC, ARBITRATION HAS COME TO BE ACCEPTED AS A GOOD
WAY TO SETTLE SUCH SEMI-PUBLIC CONTROVERSIES, WHICH ARE MORE IN THE
NATURE OF POWER STRUGGLES BETWEEN GIANTS THAN ORDINARY JUSTICIABLE
CONTROVERSIES INVOLVING INDIVIDUAL LABORERS.  (FN5)  WHEN A CONTRACT
PROVIDED FOR ARBITRATION TO SETTLE DISPUTES WHICH AFFECTED MANY WORKERS
AND WHICH COULD LEAD TO STRIKES, THIS COURT APPROVED IT AND HELD THAT
SINCE BOTH SIDES - COMPANY AND UNION - HAD AGREED TO THIS METHOD OF
PEACEFUL SETTLEMENT, FEDERAL LAW WOULD HONOR AND ENFORCE IT.  TEXTILE
WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448.  BUT TO HOLD THAT THE
UNION AND COMPANY CAN BIND THEMSELVES TO ARBITRATE A DISPUTE OF GENERAL
IMPORTANCE AFFECTING ALL OR MANY OF THE UNION'S MEMBERS AND VITALLY
THREATENING THE PUBLIC WELFARE IS A FAR CRY FROM SAYING, AS THE COURT
DOES TODAY, THAT AN ORDINARY LABORER WHOSE EMPLOYER DISCHARGES HIM AND
THEN FAILS TO PAY HIS PAST-DUE WAGES OR WAGE SUBSTITUTES MUST, IF THE
UNION'S CONTRACT WITH THE EMPLOYER PROVIDES FOR ARBITRATION OF
GRIEVANCES, HAVE THE DOORS OF THE COURTS OF HIS COUNTRY SHUT IN HIS
FACE TO PREVENT HIS SUING THE EMPLOYER TO GET HIS OWN WAGES FOR BREACH
OF CONTRACT.  LINCOLN MILLS WAS A CASE INVOLVING A REAL AND ACTIVE
COLLECTIVE BARGAINING DISPUTE BETWEEN UNION AND EMPLOYER OVER GENERAL
WORKING CONDITIONS; BUT THE PRESENT CASE IS A CONTROVERSY NOT ABOUT
GENERAL WORKING CONDITIONS BUT ABOUT WHETHER THE COMPANY WILL PAY ONE
INDIVIDUAL HIS WAGES. 

FOR THE INDIVIDUAL, WHETHER HIS CASE IS SETTLED BY A PROFESSIONAL
ARBITRATOR OR TRIED BY A JURY CAN MAKE A CRUCIAL DIFFERENCE. 
ARBITRATION DIFFERS FROM JUDICIAL PROCEEDINGS IN MANY WAYS: ARBITRATION
CARRIES NO RIGHT TO A JURY TRIAL AS GUARANTEED BY THE SEVENTH
AMENDMENT; ARBITRATORS NEED NOT BE INSTRUCTED IN THE LAW; THEY ARE NOT
BOUND BY RULES OF EVIDENCE; THEY NEED NOT GIVE REASONS FOR THEIR
AWARDS; WITNESSES NEED NOT BE SWORN; THE RECORD OF PROCEEDINGS NEED NOT
BE COMPLETE; AND JUDICIAL REVIEW, IT HAS BEEN HELD, IS EXTREMELY
LIMITED.  (FN6)  TO SAY THAT BECAUSE THE UNION CHOSE A CONTRACT
PROVIDING FOR GRIEVANCE ARBITRATION AN INDIVIDUAL EMPLOYEE FREELY AND
WILLINGLY CHOSE THIS METHOD OF SETTLING ANY CONTRACTUAL CLAIMS OF HIS
OWN WHICH MIGHT LATER ARISE IS SURELY A TRANSPARENT AND CRUEL FICTION. 
AND EVEN IF THE EMPLOYEE COULD WITH ANY TRUTH BE REGARDED AS HAVING
HIMSELF AGREED TO SUCH A THING, UNTIL RECENTLY THIS COURT REFUSED TO
RECOGNIZE AND ENFORCE CONTRACTS UNDER WHICH INDIVIDUALS WERE TO BE
DENIED ACCESS TO COURTS AND INSTEAD LEFT TO THE COMPARATIVELY
STANDARDLESS PROCESS OF ARBITRATION.  AN INSURANCE COMPANY CANNOT
ENFORCE A CONTRACT MADE WITH ITS INSURED TO ARBITRATE ALL DISPUTES
WHICH MIGHT ARISE IN THE FUTURE, THIS COURT SAID, SINCE SUCH AN
AGREEMENT WOULD BE "AN ATTEMPT TO OUST THE COURTS OF JURISDICTION BY
EXCLUDING THE ASSURED FROM ALL RESORT TO THEM FOR HIS REMEDY." 
RIDDLESBARGER V. HARTFORD INS. CO., 7 WALL.  386, 391.  CF. INSURANCE
CO. V. MORSE, 20 WALL.  445.  THE COURT HOLDS TODAY, HOWEVER, THAT A
UNION REPRESENTING A WORKER IN A MINE OR FACTORY CAN BY THE UNION'S
CONTRACT TAKE AWAY FROM THAT WORKER HIS RIGHT TO SUE, WHICH HE WOULD
NOT BE ABLE TO CONTRACT AWAY HIMSELF UNLESS THE RIDDLESBARGER CASE IS
TO BE OVERRULED.  COMPARE MOSELEY V. ELECTRONIC & MISSILE FACILITIES,
INC., 374 U.S. 167, 172-173 (CONCURRING OPINION).  AND THERE IS NOTHING
IN THE LEGISLATIVE HISTORY OF SEC. 301 WHICH INDICATES ANY
CONGRESSIONAL PURPOSE TO OVERRULE OR AVOID THE RIDDLESBARGER RULE. 
MOREOVER, THERE IS NOT ONE WORD IN SEC. 301 ABOUT AGREEMENTS TO
ARBITRATE.  IT IS TRUE THAT THIS COURT SAID IN LINCOLN MILLS, "PLAINLY
THE AGREEMENT TO ARBITRATE GRIEVANCE DISPUTES IS THE QUID PRO QUO FOR
AN AGREEMENT NOT TO STRIKE," AND "THE ENTIRE TENOR OF THE HISTORY
INDICATES THAT THE AGREEMENT TO ARBITRATE GRIEVANCE DISPUTES WAS
CONSIDERED AS QUID PRO QUO OF A NO-STRIKE AGREEMENT."  (FN7)  IN THAT
CASE, HOWEVER, THE COURT EXPRESSLY RECOGNIZED THAT ITS DECISION AND
REASONING DID "NOT REACH" THE RIGHT OF INDIVIDUAL EMPLOYEES TO BRING
SUIT IN COURT ON THEIR INDIVIDUAL CLAIMS.  (FN8)  FORCING CHARLIE
MADDOX, WHO IS OUT OF A JOB, TO SUBMIT HIS CLAIM TO ARBITRATION IS NOT
GOING TO PROMOTE INDUSTRIAL PEACE.  CHARLIE MADDOX IS NOT THREATENING
TO GO OUT IN THE STREET BY HIMSELF AND STAGE A STRIKE AGAINST THE
REPUBLIC STEEL CORPORATION TO GET HIS UNPAID WAGES.  MERELY BECAUSE
THIS COURT IN LINCOLN MILLS HAS EXPRESSED ITS PREFERENCE FOR
ARBITRATION WHEN USED TO AVOID INDUSTRIAL WARFARE BY HEADING OFF
VIOLENT CLASHES BETWEEN POWERFUL EMPLOYERS AND POWERFUL UNIONS, (FN9)
IT DOES NOT FOLLOW THAT SEC. 301 SHOULD BE EXPANDED TO REQUIRE A WORKER
TO ARBITRATE HIS WAGE CLAIM OR TO SURRENDER HIS RIGHT TO BRING HIS OWN
SUIT TO ENFORCE THAT CLAIM IN COURT.  SUCH AN EXPANSION WOULD RUN
COUNTER TO THIS COURT'S LONG-ESTABLISHED POLICY OF PRESERVING THE
ANCIENT, TREASURED RIGHT TO JUDICIAL TRIALS IN INDEPENDENT COURTS
ACCORDING TO DUE PROCESS OF LAW. 

THE PAST DECISIONS OF THIS COURT WHICH ARE CLOSEST TO THE CASE BEFORE
US ARE NOT LINCOLN MILLS AND CASES LIKE IT, WHICH INVOLVED BROAD
CONFLICTS BETWEEN UNIONS AND EMPLOYERS WITH REFERENCE TO CONTRACTUAL
TERMS VITAL TO SETTLEMENT OF GENUINE EMPLOYER-UNION DISPUTES.  THE
CASES REALLY IN POINT ARE THOSE WHICH INVOLVED AGREEMENTS GOVERNED BY
THE RAILWAY LABOR ACT (FN10) AND WHICH EXPRESSLY REFUSED TO HOLD THAT A
DISCHARGED WORKER MUST PURSUE COLLECTIVE BARGAINING GRIEVANCE
PROCEDURES BEFORE SUING IN A COURT FOR WRONGFUL DISCHARGE. 
TRANSCONTINENTAL & WESTERN AIR, INC. V. KOPPAL, 345 U.S. 653; MOORE V.
ILLINOIS CENTRAL R. CO., 312 U.S. 630.  WHILE THOSE WERE WRONGFUL
DISCHARGE CASES AND THE SUIT HERE IS FOR WAGES DUE ON A CONTRACT AFTER
DISCHARGE, THE PRINCIPLE OF THOSE CASES IS PRECISELY APPLICABLE HERE,
SINCE AS WAS POINTED OUT IN SLOCUM V. DELAWARE, L.&W.R. CO., 339 U.S.
239, 244, THE CLAIM OF A PERSON NO LONGER EMPLOYED WILL ALMOST NEVER
INVOLVE QUESTIONS SUBSTANTIALLY AFFECTING FUTURE RELATIONS BETWEEN AN
EMPLOYER AND THE REMAINING EMPLOYEES.  THE COURT RECOGNIZES THE
RELEVANCE OF MOORE AND KOPPAL AND, WHILE DECLINING EXPRESSLY TO
OVERRULE THEM IN THIS CASE, HAS RAISED THE OVERRULING AXE SO HIGH THAT
ITS FALLING IS JUST ABOUT AS CERTAIN AS THE CHANGING OF THE SEASONS. 
YET ALTHOUGH MEMBERS OF CONGRESS AND ALERT COUNSEL FOR THE NATIONAL
UNIONS AND EMPLOYERS ARE BOUND TO HAVE BEEN FAMILIAR WITH MOORE AT THE
TIME THE COMPREHENSIVE LABOR STATUTE OF WHICH SEC. 301 IS A PART WAS
ENACTED, CONGRESS DID NOT SEE FIT TO DISOWN THE MOORE RULE AND DID NOT
EXPRESS A PREFERENCE FOR A DIFFERENT POLICY WITH REFERENCE TO
INDIVIDUAL SUITS ON COLLECTIVE BARGAINING AGREEMENTS COVERED BY THE
LMRA. 

THE COURT'S OPINION MANIFESTS GREAT CONCERN FOR THE INTERESTS OF
EMPLOYERS AND UNIONS, BUT NOT, I FEAR, ENOUGH UNDERSTANDING AND
APPRECIATION FOR AN INDIVIDUAL WORKER CAUGHT IN THE PLIGHT MADDOX IS
IN.  THE COURT REFERS WITH SEEMING APPROVAL TO THE "'COMMON LAW' OF THE
PLANT," AND DIRECTS ATTENTION TO THE CLEAR INTEREST THAT THE UNION HAS
IN HANDLING EMPLOYEES' GRIEVANCES IN ORDER TO "ENHANCE THE UNION'S
PRESTIGE WITH EMPLOYEES."  IT ALSO REFERS TO THE GREAT INTEREST THAT AN
EMPLOYER HAS (AND I AGREE) IN HAVING A COMPLICATED PROCEDURAL SYSTEM
WHICH DISSATISFIED EMPLOYEES ARE HERE COMPELLED TO FOLLOW, WHICH ENDS
UP IN BINDING ARBITRATION AND WHICH RELIEVES THE EMPLOYER OF A
LAWSUIT.  THE COURT THEN EXPRESSES ITS VIEW THAT ALLOWING THIS FORMER
EMPLOYEE TO SUE WITHOUT GOING THROUGH THE GRIEVANCE PROCEDURE AND
ARBITRATION, AS HE WOULD BE PERMITTED TO DO IN THIS CASE BY THE LAW OF
HIS STATE, (FN11) HAS "LITTLE TO COMMEND IT" AND "WOULD DEPRIVE
EMPLOYER AND UNION OF THE ABILITY TO ESTABLISH A UNIFORM AND EXCLUSIVE
METHOD FOR ORDERLY SETTLEMENT OF EMPLOYEE GRIEVANCES."  I EMPHASIZE THE
WORDS "EMPLOYER" AND "UNION" TO POINT OUT THAT HERE, AS ELSEWHERE IN
THE OPINION, THEIRS SEEM TO BE THE CHIEF INTERESTS ON WHICH THE COURT'S
ATTENTION IS FOCUSED.  THE PROCEDURE THEY (EMPLOYER AND UNION) WANT
MUST BE "MADE EXCLUSIVE," OR ELSE THEY MIGHT NOT LIKE IT. (FN12)
INDIVIDUAL WORKERS ARE TO TAKE SOME COMFORT, I SUPPOSE, IN THE COURT'S
STATEMENT THAT "IT CANNOT BE SAID, IN THE NORMAL SITUATION, THAT
CONTRACT GRIEVANCE PROCEDURES ARE INADEQUATE TO PROTECT THE INTERESTS
OF AN AGGRIEVED EMPLOYEE UNTIL THE EMPLOYEE HAS ATTEMPTED TO IMPLEMENT
THE PROCEDURES AND FOUND THEM SO."  I THINK IT CAN BE SAID, HOWEVER,
AND I SAY IT.  I THINK AN EMPLOYEE IS JUST AS CAPABLE OF TRYING TO
ENFORCE PAYMENT OF HIS WAGES OR WAGE SUBSTITUTES UNDER A COLLECTIVE
BARGAINING AGREEMENT AS HIS UNION, AND HE CERTAINLY IS MORE INTERESTED
IN THIS EFFORT THAN ANY UNION WOULD LIKELY BE.  THIS IS PARTICULARLY
TRUE WHERE THE EMPLOYEE HAS LOST HIS JOB AND IS MOST LIKELY OUTSIDE THE
UNION DOOR LOOKING IN INSTEAD OF ON HAND TO PUSH FOR HIS CLAIM. 
EXAMPLES CERTAINLY HAVE NOT BEEN WANTING FROM WHICH THE COURT MIGHT
LEARN THAT OFTEN EMPLOYEES FOR ONE REASON OR ANOTHER HAVE FELT
THEMSELVES COMPELLED TO SUE THE UNION AS A PREREQUISITE TO OBTAINING
ANY HELP FROM THE UNION AT ALL.  SEE, E.G., HUMPHREY V. MOORE, 375 U.S.
335; SYRES V. OIL WORKERS INT'L UNION, 350 U.S. 892; BROTHERHOOD OF R.
TRAINMEN V. HOWARD, 343 U.S. 768; TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE
FIREMEN & ENGINEMEN, 323 U.S. 210; STEELE V. LOUISVILLE & N.R. CO., 323
U.S. 192.  BUT, SAYS THE COURT, THE EMPLOYEE ATTEMPTING TO RECOVER
WAGES OWED HIM MUST, UNLESS THE COLLECTIVE BARGAINING CONTRACT OF THE
COMPANY AND THE UNION PROVIDES OTHERWISE, "AFFORD THE UNION THE
OPPORTUNITY TO ACT ON HIS BEHALF."  THE COURT THEN IMPLIES THAT IF THE
UNION "REFUSES TO PRESS OR ONLY PERFUNCTORILY PRESSES THE INDIVIDUAL'S
CLAIM," THERE MAY BE SOME FORM OF REDRESS AVAILABLE TO THE WORKER, BUT
WE ARE LEFT IN THE DARK AS TO WHAT FORM THAT REDRESS MIGHT TAKE.  IT
MAY BE THAT THE WORKER WOULD BE ALLOWED TO SUE AFTER HE HAD PRESENTED
HIS CLAIM TO THE UNION AND AFTER HE HAD SUFFERED THE INEVITABLE
DISCOURAGEMENT AND DELAY WHICH NECESSARILY ACCOMPANIES THE UNION'S
REFUSAL TO PRESS HIS CLAIM.  BUT I CANNOT AGREE THAT THIS IS THE SORT
OF REMEDY A WORKER SHOULD HAVE TO INVOKE TO BRING A SIMPLE LAWSUIT. 

I AM WHOLLY UNABLE TO READ SEC. 301 AS LAYING ANY SUCH RESTRICTIVE
BURDENS ON AN EMPLOYEE.  AND I THINK THE DIFFERENCE BETWEEN MY BRETHREN
AND ME IN THIS CASE IS NOT SIMPLY ONE CONCERNING THIS COURT'S FUNCTION
IN INTERPRETING OR FORMULATING LAWS.  THERE IS ALSO APPARENTLY A VAST
DIFFERENCE BETWEEN THEIR PHILOSOPHY AND MINE CONCERNING LITIGATION AND
THE ROLE OF COURTS IN OUR COUNTRY.  AT LEAST SINCE MAGNA CARTA PEOPLE
HAVE DESIRED TO HAVE A SYSTEM OF COURTS WITH SET RULES OF PROCEDURE OF
THEIR OWN AND WITH CERTAIN INSTITUTIONAL ASSURANCES OF FAIR AND
UNBIASED RESOLUTION OF CONTROVERSIES.  IT WAS IN MAGNA CARTA, THE
ENGLISH BILL OF RIGHTS, AND OTHER SUCH CHARTERS OF LIBERTY, THAT THERE
ORIGINALLY WAS EXPRESSED IN THE ENGLISH-SPEAKING WORLD A DEEP DESIRE OF
PEOPLE TO BE ABLE TO SETTLE DIFFERENCES ACCORDING TO STANDARD, WELL
KNOWN PROCEDURES IN COURTS PRESIDED OVER BY INDEPENDENT JUDGES WITH
JURORS TAKEN FROM THE PUBLIC.  BECAUSE OF THESE DEEP-SEATED DESIRES,
THE RIGHT TO SUE AND BE SUED IN COURTS ACCORDING TO THE "LAW OF THE
LAND," KNOWN LATER AS "DUE PROCESS OF LAW," BECAME RECOGNIZED.  THAT
RIGHT WAS WRITTEN INTO THE BILL OF RIGHTS OF OUR CONSTITUTION AND IN
THE CONSTITUTIONS OF THE STATES.  SEE CHAMBERS V. FLORIDA, 309 U.S.
227, 235-238.  EVEN IF IT BE TRUE, WHICH I DO NOT CONCEDE, THAT
CONGRESS COULD FORCE A MAN IN THIS COUNTRY TO HAVE HIS ORDINARY LAWSUIT
ADJUDICATED NOT UNDER DUE PROCESS OF LAW, I.E., WITHOUT THE
CONSTITUTIONAL SAFEGUARDS OF A COURT TRIAL, I DO NOT THINK THAT THIS
COURT SHOULD EVER FEEL FREE TO INFER OR IMPLY THAT CONGRESS HAS TAKEN
SUCH A STEP UNTIL THE WORDS OF THE STATUTE ARE WRITTEN SO CLEARLY THAT
NO ONE WHO READS THEM CAN DOUBT.  CF. UNITED STATES EX REL. TOTH V.
QUARLES, 350 U.S. 11; UNITED STATES V. LOVETT, 328 U.S. 303; DUNCAN V.
KAHANAMOKU, 327 U.S. 304; REID V. COVERT, 354 U.S. 1, 5-10 (OPINION
ANNOUNCING JUDGMENT); BARSKY V. BOARD OF REGENTS, 347 U.S. 442, 456
(DISSENTING OPINION); STEIN V. NEW YORK, 346 U.S. 156, 197 (DISSENTING
OPINION); SHAUGHNESSY V. UNITED STATES EX REL. MEZEI, 345 U.S. 206, 216
(DISSENTING OPINION); GALLOWAY V. UNITED STATES, 319 U.S. 372, 396
(DISSENTING OPINION).  MADDOX HAS A JUSTICIABLE CONTROVERSY.  HE HAS
NOT AGREED SINCE THE CONTROVERSY AROSE, OR EVEN FOR THAT MATTER BEFORE
IT AROSE, TO ARBITRATE IT, AND SO HE SHOULD NOT HAVE THE DOORS OF THE
COURTS SHUT IN HIS FACE.  NOR DO I BELIEVE THAT HE OR ANY OTHER MEMBER
OF THE UNION SHOULD BE TREATED AS AN INCOMPETENT UNABLE TO PURSUE HIS
OWN SIMPLE BREACH-OF-CONTRACT LOSSES.  I CANNOT AND DO NOT BELIEVE ANY
LAW CONGRESS HAS PASSED PROVIDES THAT WHEN A MAN BECOMES A MEMBER OF A
LABOR UNION IN THIS COUNTRY HE THEREBY HAS SOMEHOW SURRENDERED HIS OWN
FREEDOM AND LIBERTY TO CONDUCT HIS OWN LAWSUIT FOR WAGES.  OF COURSE
THIS IS NOT THE WORST KIND OF SERVITUDE TO WHICH A MAN COULD BE
SUBJECTED, BUT IT IS CERTAINLY CONTRARY TO THE SPIRIT OF FREEDOM IN
THIS COUNTRY TO INFER FROM THE BLUE THAT WORKERS LOSE THEIR RIGHTS TO
APPEAL TO THE COURTS FOR REDRESS WHEN THEY BELIEVE THEY ARE
MISTREATED.  COMPARE SMITH V. EVENING NEWS ASSN., 371 U.S. 195, 204-205
(DISSENTING OPINION). 

I WOULD AFFIRM. 

FN1  ALTHOUGH THE COURT CALLS THIS "SEVERANCE PAY," IT CAN BE SEEN
THAT THE CLAIM WAS SIMPLY ONE FOR WAGES WHICH WERE TO CONTINUE FOR A
STATED PERIOD AFTER DISCHARGE. 

FN2  THE GRIEVANCE PROCEDURE SET OUT IN THE CONTRACT WAS AS FOLLOWS: 

"ANY EMPLOYEE WHO HAS A COMPLAINT MAY DISCUSS THE ALLEGED COMPLAINT
WITH HIS FOREMAN IN AN ATTEMPT TO SETTLE IT.  ANY COMPLAINT NOT SO
SETTLED SHALL CONSTITUTE A GRIEVANCE WITHIN THE MEANING OF THIS

"GRIEVANCES SHALL BE HANDLED IN THE FOLLOWING MANNER: 

"STEP 1.  BETWEEN THE AGGRIEVED EMPLOYEE, HIS GRIEVANCE COMMITTEEMAN
OR ASSISTANT GRIEVANCE COMMITTEEMAN AND THE FOREMAN. 

"STEP 2.  BETWEEN THE EMPLOYEE, HIS GRIEVANCE COMMITTEEMAN OR
ASSISTANT GRIEVANCE COMMITTEEMAN AND THE SUPERINTENDENT OR HIS
REPRESENTATIVE. 

"STEP 3.  BETWEEN THE GRIEVANCE COMMITTEE, A REPRESENTATIVE OF THE
INTERNATIONAL UNION, THE SUPERINTENDENT OF INDUSTRIAL RELATIONS, THE
SUPERINTENDENT, AND SUCH COMPANY REPRESENTATIVES AS HE MAY SELECT. 
ACCURATE MINUTES OF THIS MEETING SHALL BE PREPARED BY THE COMPANY NOT
LATER THAN FIVE DAYS AFTER THE DATE OF THE MEETING AND SHALL BE SIGNED
BY REPRESENTATIVES OF THE UNION AND THE COMPANY. 

"GRIEVANCES NOT APPEALED FROM THE DECISION RENDERED IN WRITING IN ANY
OF THE THREE STEPS SPECIFIED HEREIN, WITHIN TEN DAYS FROM THE DATE OF
SUCH DECISION, SHALL BE CONSIDERED SETTLED ON THE BASIS OF THE DECISION
LAST MADE AND SHALL NOT BE ELIGIBLE FOR FURTHER APPEAL. 

"IF ANY GRIEVANCE IS NOT ANSWERED WITHIN THE TIME LIMITS HEREINAFTER
SPECIFIED IN THIS SECTION, UNLESS AN EXTENSION OF TIME HAS BEEN
MUTUALLY AGREED UPON, EITHER PARTY AFTER NOTIFYING THE OTHER PARTY BY
NOTATION ON THE GRIEVANCE PAPERS OF SUCH INTENT MAY APPEAL TO THE NEXT
STEP. 

"GRIEVANCES PRESENTED IN THE FIRST STEP HEREOF SHALL BE REDUCED TO
WRITING ON FORMS PROVIDED BY THE COMPANY, DATED AND SIGNED BY THE
EMPLOYEE INVOLVED AND TWO COPIES GIVEN TO THE FOREMAN, THE FOREMAN WILL
HAVE INSERTED IN THE APPROPRIATE PLACE ON THE FORM HIS DISPOSITION OF
THE MATTER AND WILL SIGN AND DATE SAME, RETURNING ONE COPY TO THE
ASSISTANT GRIEVANCE COMMITTEEMAN OR GRIEVANCE COMMITTEEMAN. 

"THE FOLLOWING TIME SHALL BE ALLOWED THE COMPANY TO GIVE AN ANSWER IN
EACH OF THE RESPECTIVE STEPS BEFORE THE GRIEVANCE MAY BE PROCESSED TO
THE NEXT STEP:  STEP 1, THREE DAYS EXCLUSIVE OF SUNDAYS AND HOLIDAYS;
STEP 2, SEVEN DAYS; STEP 3, FIFTEEN DAYS. 

"STEP 4.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT
GRIEVANCES NOT SATISFACTORILY SETTLED IN STEP 3 MAY BY WRITTEN NOTICE
WITHIN TEN DAYS FROM THE DATE OF THE WRITTEN DECISION IN STEP 3, BE
APPEALED TO AN IMPARTIAL ARBITRATOR TO BE APPOINTED BY MUTUAL AGREEMENT
OF THE PARTIES HERETO WITHIN FIFTEEN DAYS AFTER EITHER PARTY HAS
REQUESTED ARBITRATION.  THE DECISION OF THE ARBITRATOR SHALL BE
FINAL." 

FN3  61 STAT. 156, 29 U.S.C. SEC. 185(A) (1958 ED.).  SECTION 301(A)
IN ITS ENTIRETY READS AS FOLLOWS: 

"SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE
AS DEFINED IN THIS CHAPTER, OR BETWEEN ANY SUCH LABOR ORGANIZATIONS,
MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED STATES HAVING
JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE AMOUNT IN
CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE PARTIES." 

FN4  SEE, E.G., TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S. 95;
UNITED STEELWORKERS V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593;
UNITED STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574;
UNITED STEELWORKERS V. AMERICAN MFG. CO., 363 U.S. 564. 

FN5  COMPARE THE DISTINCTION IN CASES UNDER THE RAILWAY LABOR ACT, 44
STAT. 577, AS AMENDED, 45 U.S.C. SEC. 151 ET SEQ. (1958 ED.)  BETWEEN
"MAJOR" AND "MINOR" DISPUTES.  SEE, E.G., BROTHERHOOD OF R. TRAINMEN V.
CHICAGO R.&I.R. CO., 353 U.S. 30. 

FN6  SEE BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198, 203; WILKO V.
SWAN, 346 U.S. 427, 436.  BUT SEE INDEPENDENT PETROLEUM WORKERS V.
AMERICAN OIL CO., 324 F.2D 903 (C.A. 7TH CIR.), AFFIRMED BY AN EQUALLY
DIVIDED COURT, 379 U.S. 130. 

FN7  353 U.S., AT 455. 

FN8  ID., AT 459, N. 9. 

FN9  SEE, E.G., UNITED STEELWORKERS V. ENTERPRISE WHEEL & CAR CORP.,
363 U.S. 593; UNITED STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., 363
U.S. 574; UNITED STEELWORKERS V. AMERICAN MFG. CO., 363 U.S. 564. 

FN10  44 STAT. 577, AS AMENDED, 45 U.S.C. SEC. 151 ET SEQ. (1958
ED.).  THE ACT OF APRIL 10, 1936, C. 166, MAKES THE RAILWAY LABOR ACT
APPLICABLE TO AVIATION WORKERS.  49 STAT. 1189, 45 U.S.C. SEC. 181
(1958 ED.). 

FN11  ALABAMA LAW DOES NOT REQUIRE EXHAUSTION OF GRIEVANCE PROCEDURES
AND ARBITRATION IN A CASE LIKE THIS ONE.  REPUBLIC STEEL CORP. V.
MADDOX, 275 ALA. 685, 158 SO. 2D 492; WOODWARD IRON CO. V.
STRINGFELLOW, 271 ALA. 596, 126 SO. 2D 96. 

FN12 THE AFL-CIO HAS FILED AN AMICUS BRIEF SUPPORTING THE EMPLOYER IN
THIS CASE. 
..END :








DAVIS V. BALTIMORE & OHIO RAILROAD CO. 379 U.S. 671 


NO. 560.  DECIDED JANUARY 25, 1965 - CERTIORARI GRANTED; 235 MD. 568,
202 A.2D 348, REVERSED. 


IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, IN WHICH
THERE WAS CONFLICTING EVIDENCE CONCERNING A FORKLIFT TRUCK WHICH FELL
INTO AN OPEN ELEVATOR SHAFT ON TOP OF PETITIONER, PETITIONER WAS
AWARDED DAMAGES BY THE JURY.  THE MARYLAND COURT OF APPEALS HELD THAT
THE ISSUE OF EMPLOYER NEGLIGENCE SHOULD NOT HAVE BEEN SUBMITTED TO THE
JURY AND THAT THE TRIAL COURT ERRED IN DENYING THE RAILROAD'S MOTIONS
FOR A DIRECTED VERDICT AND JUDGMENT N.O.V.  HELD:  THE STATE APPELLATE
COURT IMPROPERLY INVADED THE FUNCTION AND PROVINCE OF THE JURY. 

DAVIS V. BALTIMORE & OHIO RAILROAD CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
MARYLAND. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
MARYLAND COURT OF APPEALS IS REVERSED. 

IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C.
SEC. 51 ET SEQ., THE PETITIONER WAS AWARDED DAMAGES BY A JURY IN THE
SUPERIOR COURT OF BALTIMORE CITY.  THE COURT OF APPEALS HELD THAT THE
ISSUE OF EMPLOYER NEGLIGENCE SHOULD NOT HAVE BEEN SUBMITTED TO THE JURY
AND THAT THE TRIAL COURT ERRED IN DENYING THE MOTIONS OF THE RAILROAD
FOR A DIRECTED VERDICT AND FOR A JUDGMENT N.O.V., 235 MD. 568, 202 A.2D
348. 

THE PETITIONER WORKED FOR THE RAILROAD AS A TALLYMAN AND TRUCKER AT
ITS LOCUST POINT TERMINAL IN BALTIMORE CITY.  HIS FOREMAN DIRECTED HIM
TO FIND SOME BOXES OF MERCHANDISE.  WHILE WORKING ON THIS ASSIGNMENT
NEAR AN OPEN ELEVATOR SHAFT HE FELL INTO THE SHAFT AND ONE OF THE
RAILROAD'S FORKLIFT TRUCKS FELL IN ON TOP OF HIM.  THE CRUCIAL FACT
QUESTION IN THE CASE CONCERNED THE FORKLIFT TRUCK.  THERE WAS TESTIMONY
THAT THE PETITIONER HAD MOUNTED THE TRUCK AND BACKED IT INTO THE
SHAFT.  THERE WAS ALSO EVIDENCE, HOWEVER, WHICH, IF BELIEVED BY THE
JURY, WOULD SUPPORT A FINDING THAT THE OPERATOR ASSIGNED TO USE THE
TRUCK NEGLIGENTLY LEFT IT UNATTENDED, AND THAT IT ROLLED TOWARD THE
PETITIONER, EITHER BECAUSE IT WAS NOT SECURED OR BECAUSE IT WAS SET IN
MOTION BY AN UNAUTHORIZED THIRD PERSON, AND STRUCK PETITIONER IN THE
BACK, PROPELLING HIM INTO THE SHAFT.  IN THESE CIRCUMSTANCES, THE COURT
OF APPEALS IMPROPERLY INVADED THE FUNCTION AND PROVINCE OF THE JURY. 
ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500; GALLICK V. BALTIMORE &
OHIO R. CO., 372 U.S. 108. 

MR. JUSTICE HARLAN, CONCURRING. 

I CONTINUE TO HOLD THE VIEWS FIRST EXPRESSED IN MY SEPARATE OPINION
IN ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500, 559-562, AND
FREQUENTLY REITERATED SINCE:*  (1) CASES OF THIS KIND ARE NOT THE
PROPER BUSINESS OF THIS COURT; (2) ONCE ACCEPTED FOR REVIEW, HOWEVER,
BY THE VOTES OF AT LEAST FOUR MEMBERS OF THE COURT, I DEEM IT MY DUTY
TO PARTICIPATE IN THEIR DECISION.  ON THIS BASIS I JOIN THE OPINION OF
THE COURT. 

*E.G., GIBSON V. THOMPSON, 355 U.S. 18, 19; CRUMADY V. THE JOACHIM
HENDRIK FISSER, 358 U.S. 423, 429; HARRIS V. PENNSYLVANIA R. CO., 361
U.S. 15, 25; MICHALIC V. CLEVELAND TANKERS, INC., 364 U.S. 325, 332;
GUZMAN V. PICHIRILO, 369 U.S. 698, 703; GALLICK V. BALTIMORE & O.R.
CO., 372 U.S. 108, 122; DENNIS V. DENVER & R.G.W.R. CO., 375 U.S. 208,
212. 

MR. JUSTICE STEWART, CONCURRING. 

I SHARE THE VIEWS OF MR. JUSTICE HARLAN.  SEE SENTILLES V. INTER
CARIBBEAN SHIPPING CORP., 361 U.S. 107, 111 (CONCURRING OPINION). 
..END :



LISBON SALESBOOK CO. V. OHIO 379 U.S. 673 


NO. 698.  DECIDED JANUARY 25, 1965 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  176 OHIO ST. 482, 200 N.E.2D 590. 


LISBON SALESBOOK CO. ET AL. V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CALIFORNIA V. LO-VACA GATHERING CO. 379 U.S. 366 


NO. 46.  ARGUED NOVEMBER 17-18, 1964 - DECIDED JANUARY 18, 1965* - 323
F.2D 190, REVERSED. 

*TOGETHER WITH NO. 47, SOUTHERN CALIFORNIA GAS CO. ET AL. V. LO-VACA
GATHERING CO. ET AL., AND NO. 57, FEDERAL POWER COMMISSION V. LO-VACA
GATHERING CO. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


AN INTERSTATE PIPELINE COMPANY WHICH SUPPLIES NATURAL GAS AT THE
CALIFORNIA BORDER ENTERED INTO CONTRACTS TO BUY GAS IN TEXAS FOR
DELIVERY TO ITS PIPELINE SYSTEM.  ALTHOUGH THE GAS WAS TO BE COMMINGLED
WITH OTHER PURCHASES THE CONTRACTS PROVIDED FOR "RESTRICTED USE" OF THE
GAS FOR INTERNAL COMPANY USE, EITHER INTRASTATE, OR, IF INTERSTATE, NOT
FOR RESALE.  IT WAS CONCEDED THAT SOME OF THE GAS INPUT WOULD BE RESOLD
OUTSIDE OF TEXAS.  THE FEDERAL POWER COMMISSION ASSERTED JURISDICTION
OVER THESE SALES AS SALES IN INTERSTATE COMMERCE FOR RESALE UNDER SEC.
1(B) OF THE NATURAL GAS ACT.  THE COURT OF APPEALS REVERSED.  HELD: 

1.  THE ACTUALITY OF THE INTERSTATE TRANSPORTATION AND RESALE OF A
SUBSTANTIAL PORTION OF THE GAS INVOKES FEDERAL JURISDICTION OVER THE
TRANSACTIONS, THE FORM OF THE CONTRACTS NOTWITHSTANDING.  PP. 369-370. 

2.  THE JURISDICTIONAL BOUNDARIES OF THE FEDERAL POWER COMMISSION MAY
BE ESTABLISHED BY ADJUDICATION RATHER THAN BY RULE-MAKING.  P. 371. 

CALIFORNIA ET AL. V. LO-VACA GATHERING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

EL PASO NATURAL GAS CO. IS AN INTERSTATE NATURAL GAS PIPELINE COMPANY
THAT DELIVERS GAS AT THE ARIZONA-CALIFORNIA BORDER TO THREE CALIFORNIA
DISTRIBUTION COMPANIES.  THE PRESENT CONTROVERSY CONCERNS GAS TO BE
PURCHASED BY IT IN TEXAS FROM LO-VACA GATHERING CO. AND HOUSTON PIPE
LINE CO. UNDER LO-VACA'S CONTRACT GAS PRODUCED IN TEXAS IS TO BE
DELIVERED TO A SUBSIDIARY OF EL PASO'S AT A TEXAS POINT FOR DELIVERY
INTO ITS PIPELINE.  THE CONTRACT CONTAINS THE FOLLOWING TWO CLAUSES: 

"ALL OF THE GAS TO BE PURCHASED BY EL PASO FROM GATHERER LO-VACA
UNDER THIS AGREEMENT SHALL BE USED BY EL PASO SOLELY AS FUEL IN EL
PASO'S COMPRESSORS, TREATING PLANTS, BOILERS, CAMPS AND OTHER
FACILITIES LOCATED OUTSIDE OF THE STATE OF TEXAS.  IT IS UNDERSTOOD,
HOWEVER, THAT SAID GAS WILL BE COMMINGLED WITH OTHER GAS BEING
TRANSPORTED IN EL PASO'S PIPE LINE SYSTEM." 

"IT IS THE INTENT AND UNDERSTANDING OF THE PARTIES HERETO THAT THE
SALE OF NATURAL GAS HEREOF IS NOT SUBJECT TO THE JURISDICTION OF THE
FEDERAL POWER COMMISSION BECAUSE THIS SALE IS NOT FOR RESALE." 

THIS "RESTRICTED USE" AGREEMENT PROVIDES FOR A SEPARATE METERING OF
THE CONTRACT VOLUMES PRIOR TO THEIR DELIVERY INTO EL PASO'S SYSTEM.  EL
PASO WILL METER THE GAS USED FOR FUEL PURPOSES IN ITS NEW MEXICO AND
ARIZONA FACILITIES TO MAKE CERTAIN THIS AMOUNT INVARIABLY EXCEEDS THE
VOLUMES OF GAS TAKEN FROM LO-VACA UNDER THIS AGREEMENT. 

EL PASO AND HOUSTON MADE A SIMILAR CONTRACT CONTAINING A SIMILAR
"RESTRICTED USE" PROVISION BY WHICH EL PASO COVENANTS THAT THIS HOUSTON
GAS WILL BE CONSUMED BY EL PASO SOLELY AS FUEL IN ITS TEXAS OPERATIONS
OR IN ANOTHER TEXAS PLANT.  THIS CONTRACT, LIKE THE OTHER ONE, ALSO
PROVIDES FOR METERING THE VOLUME OF GAS DELIVERED IN TEXAS; AND IT
INCLUDES A COVENANT BY EL PASO THAT THE TEXAS USES WILL AT ALL TIMES
EXCEED THE AMOUNTS SUPPLIED BY HOUSTON. 

IN SPITE OF THESE "RESTRICTED USE" COVENANTS IT IS CONCEDED THAT THE
GAS SOLD BY LO-VACA AND HOUSTON TO EL PASO WILL FLOW IN A COMMINGLED
STREAM WITH GAS FROM OTHER SOURCES AND THAT AT LEAST A PORTION OF THE
GAS WILL IN FACT BE RESOLD OUT OF TEXAS. 

THE FEDERAL POWER COMMISSION ASSERTED JURISDICTION OVER THESE SALES
AS SALES IN INTERSTATE COMMERCE "FOR RESALE," AS THAT TERM IS USED IN
SEC. 1(B) OF THE NATURAL GAS ACT, 52 STAT. 821, 15 U.S.C. SEC. 717
(1958 ED.).  (FN1)  26 F.P.C. 606, REHEARING DENIED, ID., AT 840.  THE
COURT OF APPEALS REVERSED, ONE JUDGE DISSENTING.  323 F.2D 190.  THE
CASE IS HERE ON A WRIT OF CERTIORARI.  377 U.S. 951. 

WE SAID IN CONNECTICUT CO. V. FEDERAL POWER COMM'N, 324 U.S. 515,
529, "FEDERAL JURISDICTION WAS TO FOLLOW THE FLOW OF ELECTRIC ENERGY,
AN ENGINEERING AND SCIENTIFIC, RATHER THAN A LEGALISTIC OR
GOVERNMENTAL, TEST."  AND THAT IS THE TEST WE HAVE FOLLOWED UNDER BOTH
THE FEDERAL POWER ACT AND THE NATURAL GAS ACT, EXCEPT AS CONGRESS
ITSELF HAS SUBSTITUTED A SO-CALLED LEGAL STANDARD FOR THE TECHNOLOGICAL
ONE.  ID., AT 530-531.  IN INTERSTATE NATURAL GAS CO. V. FEDERAL POWER
COMM'N, 331 U.S. 682, 687, WE CONSIDERED THE ANATOMY OF THE PIPELINE
SYSTEM TO DISCOVER THE CHANNEL OF THE CONSTANT FLOW; AGAIN IN FEDERAL
POWER COMM'N V. EAST OHIO GAS CO., 338 U.S. 464, 467; AND MOST RECENTLY
IN FEDERAL POWER COMM'N V. SOUTHERN CAL. EDISON CO., 376 U.S. 205, 209,
N. 5.  THE RESULT OF OUR DECISIONS IS TO MAKE THE SALE OF GAS WHICH
CROSSES A STATE LINE AT ANY STAGE OF ITS MOVEMENT FROM WELLHEAD TO
ULTIMATE CONSUMPTION "IN INTERSTATE COMMERCE" WITHIN THE MEANING OF THE
ACT. 

ATTEMPTS HAVE BEEN MADE BY ONE CONVENTION OR ANOTHER TO CONVERT A
LOCAL TRANSACTION INTO ONE OF INTERSTATE COMMERCE (SPROUT V. SOUTH
BEND, 277 U.S. 163; SUPERIOR OIL CO. V. MISSISSIPPI, 280 U.S. 390) OR
TO MAKE A SEGMENT OF INTERSTATE COMMERCE APPEAR TO BE ONLY INTRASTATE
(BALTIMORE & OHIO R. CO. V. SETTLE, 260 U.S. 166).  BUT THOSE ATTEMPTS
HAVE FAILED.  SIMILARLY, WE CONCLUDE THAT WHEN IT COMES TO THE QUESTION
WHAT GAS IS FOR "RESALE" THE PRESENT CONTRACTS SHOULD NOT BE ABLE TO
CHANGE THE JURISDICTIONAL RESULT. 

THE FACT THAT A SUBSTANTIAL PART OF THE GAS WILL BE RESOLD, IN OUR
VIEW, INVOKES FEDERAL JURISDICTION AT THE OUTSET OVER THE ENTIRE
TRANSACTION.  WERE SUPPLIERS OF GAS AND PIPELINE COMPANIES FREE TO
ALLOCATE BY CONTRACT GAS FROM A PARTICULAR SOURCE TO A PARTICULAR USE,
HAVOC WOULD BE RAISED WITH THE FEDERAL REGULATORY SCHEME, AS IT WAS
CONSTRUED AND APPLIED IN PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S.
672.  A PIPELINE WOULD THEN BE ABLE TO DISCRIMINATE IN FAVOR OF ITS
"NONJURISDICTIONAL" CUSTOMERS.  MOREOVER, A PIPELINE COMPANY BY A
CONTRACT CLAUSE COULD IMMUNIZE A PARTICULAR SUPPLIER FROM THE REACH OF
FEDERAL REGULATION (FN2) AS DEFINED BY PHILLIPS PETROLEUM CO. V.
WISCONSIN, SUPRA.  THERE WOULD BE CREATED IN THOSE AND IN OTHER WAYS AN
"ATTRACTIVE GAP" IN THE FEDERAL REGULATORY SCHEME (FEDERAL POWER COMM'N
V. TRANSCONTINENTAL GAS PIPE LINE CORP., 365 U.S. 1, 28) WHICH THE
PRODUCING STATES MIGHT HAVE LITTLE INCENTIVE TO CLOSE, SINCE THE GAP
WOULD OFTEN INVOLVE EITHER LOWER COSTS TO INTRASTATE CUSTOMERS OR ELSE
MERELY HIGHER PIPELINE COSTS WHICH ULTIMATELY WOULD BE REFLECTED IN
RATES PAID BY CONSUMERS IN OTHER STATES.  WHETHER CASES COULD BE
CONJURED UP WHERE IN SPITE OF ORIGINAL COMMINGLING THERE MIGHT BE A
SEPARATE SO-CALLED NONJURISDICTIONAL TRANSACTION (FN3) OF A PRECISE
AMOUNT OF GAS NOT-FOR-RESALE (FN4) WITHIN THE MEANING OF THE ACT IS A
QUESTION WE NEED NOT REACH. 

FINALLY IT IS SAID THAT THE COMMISSION SHOULD DRAW THE APPROPRIATE
LINES BETWEEN "JURISDICTIONAL" AND "NONJURISDICTIONAL" SALES THROUGH
THE USE OF ITS RULE-MAKING POWER.  BUT WE CANNOT SAY THAT THE
ADJUDICATORY PROCESS IS NOT AN APPROPRIATE METHOD FOR DRAWING THE LINE
CASE-BY-CASE (UNITED STATES V. PUBLIC UTILITIES COMM'N, 345 U.S. 295)
AS IN A HOST OF OTHER ADMINISTRATIVE DETERMINATIONS.  THE COMMISSION
HAS ACTED RESPONSIBLY IN THIS SITUATION AND ITS DECISION MUST BE
UPHELD.  REVERSED. 

FN1  SECTION 1(B) OF THE ACT PROVIDES: 

"THE PROVISIONS OF THIS ACT SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 


"WHEN USED IN THIS ACT, UNLESS THE CONTEXT OTHERWISE REQUIRES: 

     *   *         *         *         * 

"(7)  'INTERSTATE COMMERCE' MEANS COMMERCE BETWEEN ANY POINT IN A
STATE AND ANY POINT OUTSIDE THEREOF, OR BETWEEN POINTS WITHIN THE SAME
STATE BUT THROUGH ANY PLACE OUTSIDE THEREOF, BUT ONLY INSOFAR AS SUCH
COMMERCE TAKES PLACE WITHIN THE UNITED STATES." 

FN2  THE COMMISSION'S REPORT, STATISTICS OF NATURAL GAS COMPANIES -
1962, SHOWS THAT THE 40 MAJOR NATURAL GAS PIPELINE COMPANIES CONSUMED
MORE THAN $85,000,000 WORTH OF GAS IN OPERATING THEIR FACILITIES
(PRINCIPALLY COMPRESSOR STATIONS, P. XVIII.  THIS REPRESENTS ALMOST 4%
OF THE TOTAL GAS-PURCHASE-COSTS OF THOSE COMPANIES.  THE COMMISSION
THEREFORE POINTS OUT IN ITS BRIEF THAT PIPELINE COMPANIES, MERELY BY
USING "RESTRICTED USE" CONTROLS, COULD WITHOUT CHANGING THEIR ACTUAL
OPERATIONS CREATE A SUBSTANTIAL UNREGULATED MARKET FOR THE BENEFIT OF
PARTICULAR PRODUCERS. 

FN3  OUR REFERENCE IN FEDERAL POWER COMM'N V. TRANSCONTINENTAL GAS
PIPE LINE CORP., 365 U.S. 1, 4, TO "DIRECT" SALES OF GAS TO INDUSTRIAL
USERS AS NONJURISDICTIONAL SALES IS NOT DISPOSITIVE OF THE PRESENT
ISSUE.  FOR THE COMMISSION HAD REFUSED A CERTIFICATE FOR TRANSPORTATION
OF THE GAS BECAUSE FROM THE STANDPOINT OF CONSERVATION IT CONSIDERED
THE END USE AS BOILER FUEL TO BE INFERIOR.  WHETHER THE COMMISSION HAD
AUTHORITY TO ASSERT JURISDICTION OVER THE SO-CALLED "DIRECT" SALE
BECAUSE IT WAS "FOR RESALE" AS A RESULT OF ITS COMMINGLING WITH OTHER
GAS WAS NOT IN ISSUE. 

FN4  CF. UNITED STATES V. PUBLIC UTILITIES COMM'N, 345 U.S. 295, 317
318; CITY OF HASTINGS V. FEDERAL POWER COMM'N, 221 F.2D 31. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE HARLAN, DISSENTING. 

TODAY'S DECISION FURNISHES A TOO-READY ANSWER TO AN INTRICATE PROBLEM
OF ADMINISTRATIVE REGULATION.  IT REFLECTS THE SORT OF DECISION THAT IS
TO BE EXPECTED WHEN THE COURT IS WILLING TO MAKE A BARE CHOICE BETWEEN
TWO UNREFINED POINTS OF VIEW AS TO REGULATORY METHOD, WITHOUT FIRST
BEING INFORMED BY THE REGULATING AGENCY CONCERNED AS TO ITS EVALUATION
OF THE COMPETING FACTORS - SOMETHING THAT IS INDISPENSABLE TO ACHIEVING
A WELL-BALANCED SOLUTION OF A PROBLEM SUCH AS THIS.  THE RESPECTIVE
POSITIONS OF THE PARTIES HERE EACH POSSESSES THE CAPACITY TO FRUSTRATE
THE SCOPE OF NATURAL GAS REGULATION ORDAINED BY THE CONGRESS.  THE
COMMISSION'S MOLECULAR THEORY, ACCEPTED BY THE COURT WITH UNDEFINED
RESERVATIONS, RESULTS IN EXPANDING THE REGULATORY SCHEME BY SWEEPING
WITHIN THE COMMISSION'S AUTHORITY GAS THAT HAS NOT BEEN SUPPLIED OR
USED FOR INTERSTATE RESALE ("NONJURISDICTIONAL" GAS).  THE RESPONDENTS'
CONTRACT-ALLOCATION POSITION, ON THE OTHER HAND, MIGHT SERVE TO
CONTRACT THE LEGITIMATE SCOPE OF REGULATION BY INTERFERING WITH THE
ABILITY OF THE COMMISSION TO DEAL WITH GAS RESTRICTED UNDER A SUPPLY
CONTRACT TO "NOT-FOR-SALE," BUT WHICH HAS BEEN ACTUALLY USED BY THE
PIPELINE-PURCHASER FOR INTERSTATE RESALE ("JURISDICTIONAL" GAS). 

WHETHER OR NOT THERE IS A MIDDLE GROUND THAT WOULD MORE CLOSELY
FULFILL THE PURPOSES OF THE NATURAL GAS ACT THAN EITHER OF THE
PROPOSALS NOW BEFORE US IS SOMETHING THAT THIS COURT IS NOT COMPETENT
TO ASSESS WITHOUT EXPERT GUIDANCE FROM THE COMMISSION, AND WE HAVE BEEN
GIVEN NONE.  LACKING THIS, I AM UNWILLING TO ACCEPT AT THIS JUNCTURE
THE POSITION OF EITHER PARTY TO THIS LITIGATION.  I THINK THE COURT
SHOULD DECLINE TO PASS UPON THESE CASES UNTIL THE COMMISSION HAS FIRST
ILLUMINED THE REGULATORY PROBLEMS INVOLVED THROUGH AN APPROPRIATE
EXERCISE OF ITS RULE-MAKING POWERS.  (FN1) 

THE COMPLEXITY AND ELUSIVENESS OF THE MATTERS WITH WHICH WE ARE ASKED
TO DEAL ARE BEST EXPOSED FROM THE VANTAGE POINT OF THIS COURT BY
CONSIDERING SOME OF THE QUESTIONS TO WHICH ALLOCATION CONTRACTS IN
VARYING CONTEXTS GIVE RISE. 

THE COMMISSION HAS, AT LEAST UNTIL THIS CASE, ACCEPTED THE
PROPOSITION THAT A SINGLE SUPPLIER TO A PIPELINE MAY ALLOCATE BY
CONTRACT BETWEEN THE AMOUNT OF GAS USED FOR JURISDICTIONAL PURPOSES AND
THE AMOUNT USED NONJURISDICTIONALLY.  FOR EXAMPLE, IN CITY OF HASTINGS
V. FEDERAL POWER COMM'N, 221 F.2D 31, A PIPELINE COMPANY SOLD GAS TO
THE CITY THROUGH ONE PIPELINE UNDER TWO CONTRACTS, ONE COVERING THE GAS
TO BE RESOLD BY THE CITY, AND THE OTHER GAS TO BE USED BY THE CITY IN
ITS OWN PLANTS.  ALTHOUGH THE GAS WAS MINGLED IN THE COMMON PIPELINE,
THE ALLOCATION WAS APPROVED, AND THE LATTER GAS WAS, WITHOUT MORE,
CONSIDERED NOT SUBJECT TO COMMISSION REGULATION.  A SIMILAR SITUATION
WAS PRESENTED IN UNITED STATES V. PUBLIC UTILITIES COMM'N OF
CALIFORNIA, 345 U.S. 295, WHERE A POWER COMPANY SOLD ELECTRICITY TO THE
NAVY FOR USE IN ITS POWER PLANTS AND ALSO FOR RESALE TO DEPENDENT
FAMILIES.  THE ABSENCE OF ANY ALLOCATION WAS FATAL IN THAT CASE, BUT
THE COURT RECOGNIZED THAT A DIFFERENT QUESTION WOULD BE PRESENTED IF
THERE HAD BEEN TWO SEPARATE TRANSACTIONS.  345 U.S., AT 316-318. 

THE RESULT DOES NOT CHANGE WHEN TWO OR MORE SUPPLIERS ARE INVOLVED,
PROVIDED THAT THE ALLOCATION OF NONJURISDICTIONAL GAS IS PRORATED AMONG
ALL OF THE SUPPLIERS.  FOR EXAMPLE, IF A PIPELINE COMPANY CONSUMED 30%
OF ITS TOTAL VOLUME OF GAS IN ITS OWN PLANTS, AND SOLD 10% OF THE TOTAL
VOLUME IN THE STATE OF PRODUCTION, EACH SUPPLIER COULD ALLOCATE 40% OF
ITS GAS SUPPLY TO NONJURISDICTIONAL USE.  SUCH WAS ESSENTIALLY THE CASE
IN NORTH DAKOTA V. FEDERAL POWER COMM'N, 247 F.2D 173, WHERE THE
ALLOCATION WAS UPHELD WITH COMMISSION APPROVAL.  IF THESE CASES ARE
ACCEPTED BY THE COURT, TWO COROLLARIES FOLLOW:  SINCE GAS IS A FUNGIBLE
COMMODITY, THE MINGLING OF GAS DOES NOT ALONE RENDER INEFFECTIVE FOR
PURPOSES OF COMMISSION JURISDICTION THE ALLOCATION CONTRACTS, ALTHOUGH
THE MOLECULAR IDENTIFICATION OF THE NONJURISDICTIONAL GAS IS DESTROYED;
AND THE FACT THAT THE PRICES PAID FOR NONJURISDICTIONAL GAS (FN2) MAY
AFFECT THE RATE BASE FOR THE JURISDICTIONAL GAS, IS ALSO NOT A CRITICAL
FACTOR AT THIS STAGE.  (FN3) 

THE ISSUE NOW BEFORE THE COURT ARISES ONLY WHEN SOME SUPPLIERS ARE
ALLOCATING PART OR ALL OF THEIR GAS TO NONJURISDICTIONAL USE, BUT
OTHERS ARE NOT.  THIS ISSUE COULD ARISE COMMONLY IN TWO CONTEXTS: IF
EXISTING SUPPLIERS WERE ALLOCATING PRO RATA, AND NEW SUPPLIERS WERE
ADDED WHICH DID NOT ALLOCATE, THE ADDITION OF THE NEW SUPPLIERS MIGHT
BE THOUGHT NOT TO DESTROY THE VALIDITY OF THE EXISTING ALLOCATION
CONTRACTS SINCE THE NEW SUPPLIERS MIGHT BE SATISFYING AN INCREASE IN
THE DEMAND FOR JURISDICTIONAL GAS.  (FN4)  THE CONVERSE SITUATION IS
PRESENTED IN THIS CASE, WHERE THE NEW SUPPLIERS ARE ATTEMPTING TO
ALLOCATE, AND EXISTING SUPPLIERS ARE NOT.  ONE POSSIBLE TEST IN SUCH
CASES MIGHT BE TO DETERMINE THE SOURCE OF THE DEMAND FOR THE GAS
SUPPLIED TO EL PASO BY HOUSTON AND LO-VACA.  TO MODIFY THE ARGUMENT
USED BY RESPONDENTS, IF A SEPARATE PIPELINE WERE CONSTRUCTED FROM THE
COQUAT STATION (AT WHICH THE GAS ENTERS THE EL PASO SYSTEM) TO THE
POINT ALONG EL PASO'S SYSTEM WHERE THE OUTFLOW WILL INCREASE, WOULD THE
SALE BE JURISDICTIONAL OR NOT?  IF IN FACT EL PASO HAS FORMERLY BEEN
USING THE SAME AMOUNT OF GAS IN ITS COMPRESSORS THAT IT INTENDS TO USE
IN THE FUTURE, THEN THE PURPOSE OF THE LO-VACA ALLOCATION WILL BE
MERELY TO RELEASE FOR INTERSTATE SALE - TO SATISFY THE INTERSTATE
DEMAND - GAS FROM OTHER SUPPLIERS WHICH FORMERLY WAS USED FOR
NONJURISDICTIONAL PURPOSES. 

THE RECORD BEFORE US DOES NOT ANSWER THE QUESTION PUT.  THERE IS SOME
INDICATION THAT EL PASO INTENDS TO CONSTRUCT NEW COMPRESSOR PLANTS, AND
MAY HAVE TO USE MORE NONJURISDICTIONAL GAS AT ITS EXISTING PLANTS TO
HANDLE THE ADDED GAS RECEIVED FROM LO-VACA UNDER THE UNRESTRICTED
CONTRACT.  SUCH A USE WOULD SATISFY A NONJURISDICTIONAL DEMAND. 
HOWEVER, THERE IS ALSO EVIDENCE THAT IN FACT EL PASO'S CONSUMPTION FOR
NONJURISDICTIONAL PURPOSES WILL REMAIN CONSTANT, AND THAT LO-VACA'S
SUPPLIES WILL BE USED TO SATISFY AN INCREASED DEMAND FROM INTERSTATE
CONSUMERS.  THE FACT THAT LO-VACA GAS PURPORTEDLY REPLACES THE
COMPRESSOR GAS SUPPLIES FORMERLY FURNISHED BY OTHER SUPPLIERS, THUS
RELEASING THAT GAS FOR INTERSTATE RESALE, SHOULD NOT DEFEAT COMMISSION
JURISDICTION UNDER THIS ANALYSIS. 

ANOTHER POSSIBLE STANDARD WHICH SUGGESTS ITSELF WOULD BE TO DETERMINE
THE PROBABLE PERCENTAGES OF GAS FROM EACH SUPPLIER WHICH WILL BE USED
FOR NONJURISDICTIONAL PURPOSES, AND ONLY PERMIT EACH SUPPLIER TO
ALLOCATE BY CONTRACT TO NONJURISDICTIONAL USE HIS PRO RATA SHARE OF THE
TOTAL ESTIMATED NONJURISDICTIONAL GAS.  FOR EXAMPLE, IF WE SUPPOSE A
PIPELINE RUNNING FROM THE GULF COAST OF TEXAS THROUGH NEW MEXICO INTO
CALIFORNIA, AS DOES THE EL PASO SYSTEM, THEN EACH SUPPLIER SHOULD
DETERMINE WHAT PERCENTAGE OF THE TOTAL VOLUME OF GAS FLOWING WEST FROM
THE POINT OF ITS INPUT WILL BE ULTIMATELY USED FOR A NONJURISDICTIONAL
PURPOSE.  IT WOULD THEN BE MATHEMATICALLY PROBABLE THAT THIS GAS WOULD
BE USED FOR NONJURISDICTIONAL PURPOSES IN THE SAME PERCENTAGE, AND HE
COULD ALLOCATE THAT AMOUNT BY CONTRACT, SUBJECT TO CHANGE SHOULD NEW
SUPPLIES BE ADDED TO THE SYSTEM.  (FN5) 

I RECOGNIZE, OF COURSE, THAT THERE MAY BE PITFALLS IN BOTH OF THESE
POSSIBLE METHODS, AND THAT THERE MAY BE OTHER FORMULAE THAT ARE
PREFERABLE TO EITHER.  I HAVE VENTURED THEM ONLY AS SUPPORT FOR MY
BELIEF THAT THE COMMISSION'S MOLECULAR THEORY, WHICH IN THE NAME OF
PROTECTING THE COMMISSION'S JURISDICTION IN REALITY INVOLVES A JUDICIAL
EXPANSION OF ITS AUTHORITY, SHOULD NOT BE ACCEPTED UNTIL THE
COMMISSION, AFTER DUE EXPLORATION IN A RULE-MAKING PROCEEDING, IS ABLE
TO SATISFY THIS COURT THAT NO OTHER FEASIBLE METHOD - MORE PARTICULARLY
NO MODIFICATION OF THE RESPONDENTS' CONTRACT-ALLOCATION THEORY - EXISTS
THAT WOULD BETTER FIT THE BOUNDARIES OF THE COMMISSION'S JURISDICTION
AS FIXED BY CONGRESS. 

IT IS UNDOUBTEDLY TRUE THAT NORMALLY AN ADMINISTRATIVE AGENCY MAY
DECIDE FOR ITSELF WHETHER TO PROCEED IN A GIVEN FIELD OF ITS REGULATORY
FUNCTIONS THROUGH THE PROMULGATION OF GENERAL RULES (FN6) OR BY THE
PROCESS OF CASE-BY-CASE ADJUDICATION.  (FN7)  THIS COMMISSION FROM THE
OUTSET HAS USUALLY PROCEEDED, WITH THE COURT'S APPROVAL, (FN8) IN
DEVELOPING ITS PROCEDURES BY THE ADJUDICATORY PROCESS.  NEVERTHELESS,
THERE ARE GOOD REASONS WHY THE RULE-MAKING POWER APPEARS TO BE THE MORE
PROMISING AVENUE OF APPROACH IN THIS INSTANCE.  FIRST, THE ADJUDICATORY
PROCESS HAS NOT YIELDED ANY SATISFACTORY BASIC PRINCIPLE TO SERVE AS A
POINT OF DEPARTURE FOR JUDICIAL ASSESSMENT OF CASES OF THIS KIND, OR
INDEED FOR A CONSISTENT ADMINISTRATIVE APPROACH; (FN9) EVEN IN THIS
LITIGATION THE COMMISSION'S POSITION IS FAR FROM CLEAR AS TO WHAT ROOM,
IF ANY, THERE MAY BE FOR RESTRICTIVE ALLOCATION CONTRACTS.  SECOND, THE
GAS INDUSTRY IS ENTITLED TO KNOW THE FUNDAMENTAL GROUND RULES BY WHICH
IT SHOULD CONDUCT ITSELF IN THIS REGARD WITH SOME DEGREE OF
PREDICTABILITY, AS WITNESS THE SITUATION OF THESE RESPONDENTS WHOSE
GOOD FAITH IN THE TRANSACTIONS GIVING RISE TO THIS LITIGATION HAS NOT
BEEN IMPUGNED IN ANY WAY.  THIRD, THAT UNLIKE THE LINE OF CASES IN
WHICH AGENCY JURISDICTION IS CONCEDED, (FN10) HERE THE COMMISSION
SHOULD NOT BE PERMITTED TO ADOPT A THEORY WHICH EXPANDS ITS
JURISDICTION BEYOND STATUTORY LIMITS (FN11) WITHOUT FULL HEARINGS AND
THE FORMULATION OF A RULE INTERPRETING ITS JURISDICTION IN THIS AREA
WHICH CONFORMS TO THE JURISDICTIONAL LIMITS OF SEC. 1(B) OF THE NATURAL
GAS ACT.  FOURTH, BECAUSE THESE MATTERS ARE FRAUGHT WITH TECHNICAL
"PERPLEXITIES, BOTH GEOLOGICAL AND ECONOMIC," RAILROAD COMM'N OF TEXAS
V. ROWAN & NICHOLS OIL CO., 311 U.S. 570, 574, THE INFORMED EXPERTISE
OF THE COMMISSION IS A NECESSARY ADJUNCT TO SATISFACTORY JUDICIAL
RESOLUTION OF PARTICULAR CASES.  "HAD THE COMMISSION, ACTING UPON ITS
EXPERIENCE AND PECULIAR COMPETENCE, PROMULGATED A GENERAL RULE OF WHICH
ITS ORDER HERE WAS A PARTICULAR APPLICATION, THE PROBLEM FOR OUR
CONSIDERATION WOULD BE VERY DIFFERENT."  SECURITIES & EXCHANGE COMM'N
V. CHENERY CORP., 318 U.S. 80, 92.  THE COURTS HAVE A RIGHT TO THE
INFORMED JUDGMENT OF THE COMMISSION BEFORE ACTING FURTHER IN THIS
PRESENTLY OPAQUE AREA. 

I WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE
CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS AFTER THE PROMULGATION
OF INTERPRETIVE RULES TO COVER THIS, AND LIKE CASES.  (FN12) 

FN1  SEE ELMAN, COMMENT, RULEMAKING PROCEDURES IN THE FTC'S
ENFORCEMENT OF THE MERGER LAW, 78 HARV. L. REV. 385 (1964). 

FN2  SEE COURT'S OPINION, ANTE, P. 370.  IN FACT, THE PRICE CHARGED
BY LO-VACA FOR ITS NONJURISDICTIONAL GAS IS EXACTLY THE SAME AS THE
PRICE ESTABLISHED FOR ITS CONCEDEDLY JURISDICTIONAL SALE, AND THE
HOUSTON SALE IS FOR A PRICE LOWER THAN EITHER OF THE LO-VACA SALES. 

FN3  BOTH LO-VACA AND EL PASO ARE CONSTRUCTING PIPELINES TO CONNECT
WITH THE EL PASO SYSTEM AT ITS COQUAT STATION, AND BOTH MUST OBTAIN
COMMISSION CERTIFICATION UNDER SEC. 7 OF THE NATURAL GAS ACT IN ORDER
TO CONSTRUCT SUCH PIPELINES.  THE COMMISSION COULD TAKE MANY OF THE
FACTORS PRESENTED IN THIS CASE INTO ACCOUNT WHEN RULING ON THE
APPLICATIONS, SEE FEDERAL POWER COMM'N V. TRANSCONTINENTAL GAS PIPE
LINE CORP., 365 U.S. 1.  THE COMMISSION COULD ALSO TAKE INTO ACCOUNT
THE REASONABLENESS OF THE PRICES CHARGED FOR NONJURISDICTIONAL GAS
SHOULD EL PASO APPLY FOR A RATE INCREASE ON ITS JURISDICTIONAL SALES. 

FN4  SEE AMERADA PETROLEUM CORP. V. FEDERAL POWER COMM'N, 334 F.2D
404 (C.A. 8TH CIR. 1964), CERT. PENDING, NO. 585, THIS TERM, WHERE THE
SUPPLIERS IN THE NORTH DAKOTA CASE, SUPRA, HAD BEEN ALLOCATING, AND THE
PIPELINE THEN ADDED NEW SUPPLIERS WHICH DID NOT ALLOCATE.  THE COURT OF
APPEALS UPHELD THE ALLOCATION CONTRACTS. 

FN5  CORRECTIONS WOULD HAVE TO BE MADE, OF COURSE, WHERE GAS IS
WITHDRAWN FOR INTRASTATE CONSUMPTION FROM A TRUNK LINE BEFORE THE GAS
IS MINGLED WITH THE INTERSTATE SYSTEM.  SUCH GAS WOULD ALL BE
ATTRIBUTED TO THE SUPPLIERS FEEDING THE TRUNK LINE, AND THIS GAS WOULD
NOT BE USED IN COMPUTING THE TOTAL PERCENTAGES.  CF. PEOPLES NATURAL
GAS CO. V. PUBLIC SERVICE COMM'N OF PENNSYLVANIA, 270 U.S. 550.  THIS
METHOD OF ALLOCATION WOULD ONLY OPERATE WITH NATURAL GAS, WHICH FLOWS
IN ONE DIRECTION ONLY; DIFFERENT CONSIDERATIONS WOULD BE APPLICABLE
WERE WE DEALING WITH ELECTRIC POWER, WHICH CAN FLOW IN BOTH DIRECTIONS
ALONG A SYSTEM. 

FN6  SEE UNITED STATES V. STORER BROADCASTING CO., 351 U.S. 192.  SEE
GENERALLY 1 DAVIS, ADMINISTRATIVE LAW TREATISE, SEC. 5.01 (1958). 

FN7  SEE SECURITIES & EXCHANGE COMM'N V. CHENERY CORP., 332 U.S.
194. 

FN8  SEE, E.G., UNITED STATES V. PUBLIC UTILITIES COMM'N OF
CALIFORNIA, SUPRA, AT 318, N. 28. 

FN9  SEE LO-VACA GATHERING CO., 26 F.P.C. 606, 615: 

"TO THE EXTENT THAT NORTH DAKOTA MAY BE INCONSISTENT WITH THE ACTION
WE TAKE HERE, WE BELIEVE IT WAS ERRONEOUSLY DECIDED."  COMPARE, SUPRA,
P. 373. 

FN10  AS FOR EXAMPLE, IN RATE-MAKING PROCEEDINGS. 

FN11  NATURAL GAS ACT, SEC. 1(B), QUOTED IN THE COURT'S OPINION,
ANTE, P. 368, N. 1. 

FN12  SEE ADDISON V. HOLLY HILL FRUIT PRODS., INC., 322 U.S. 607,
619. 
..END :

















UNITED STATES V. FIRST NATIONAL CITY BANK 379 U.S. 378 


NO. 59.  ARGUED NOVEMBER 16, 1964 - DECIDED JANUARY 18, 1965 - 325 F.2D
1020, REVERSED. 


THE COMMISSIONER OF INTERNAL REVENUE, HAVING MADE JEOPARDY ASSESSMENTS
OF SOME $19,000,000 AGAINST A URUGUAYAN CORPORATION, SERVED WITH
NOTICES OF LEVY AND OF FEDERAL TAX LIEN RESPONDENT BANK IN NEW YORK, IN
WHOSE MONTEVIDEO BRANCH THE CORPORATION MAINTAINED A DEPOSIT. 
CONCURRENTLY, PETITIONER BROUGHT A FORECLOSURE ACTION IN FEDERAL
DISTRICT COURT AGAINST THE CORPORATION, RESPONDENT, AND OTHERS, PENDING
DETERMINATION OF WHICH AN INJUNCTION WAS SOUGHT AGAINST TRANSFER BY
RESPONDENT OF ANY PROPERTY OR RIGHTS HELD FOR THE CORPORATION'S
ACCOUNT.  RESPONDENT, BUT NOT THE CORPORATION, WAS PERSONALLY SERVED. 
THE DISTRICT COURT GRANTED A TEMPORARY INJUNCTION UNDER 26 U.S.C. SEC.
7402(A), WHICH GIVES DISTRICT COURTS POWER TO GRANT INJUNCTIONS
"NECESSARY OR APPROPRIATE FOR THE ENFORCEMENT OF THE INTERNAL REVENUE
LAWS"; AND THE COURT OF APPEALS REVERSED.  HELD:  THE DISTRICT COURT
HAS JURISDICTION TO PRESERVE THE STATUS QUO AND PREVENT FURTHER
DISSIPATION OF ASSETS BY ISSUING ITS TEMPORARY INJUNCTION "FREEZING"
THE CORPORATION'S ACCOUNT IN RESPONDENT'S FOREIGN BRANCH PENDING
PERSONAL SERVICE ON THE CORPORATION.  PP. 381-385. 

(A)  RULES 4(E) AND (F) OF THE FEDERAL RULES OF CIVIL PROCEDURE
PROVIDE FOR SERVICE IN ACCORDANCE WITH A STATE STATUTE OF A
NONINHABITANT OR PERSON NOT FOUND IN THE STATE.  P. 381. 

(B)  UNDER SEC. 302(A) OF THE NEW YORK CIVIL PRACTICE LAW AND RULES,
WHICH BECAME EFFECTIVE AFTER THE TEMPORARY INJUNCTION WAS ISSUED, OUT
OF-STATE PERSONAL SERVICE MAY BE MADE AS PROVIDED IN SEC. 313 ON A
NONDOMICILIARY TRANSACTING BUSINESS WITHIN THE STATE, A REMEDY WHICH
NEW YORK LAW MAKES APPLICABLE TO FURTHER PROCEEDINGS, SUCH AS ARE
INVOLVED HERE, IN AN ACTION PENDING ON THE EFFECTIVE DATE OF THE
STATUTE.  PP. 382-383. 

(C)  ISSUANCE OF THE INJUNCTION UNDER 26 U.S.C. SEC. 7402(A) WAS A
PROPER EXERCISE OF THE EQUITY POWER OF THE DISTRICT COURT, PARTICULARLY
AS IT WAS ACTING IN THE PUBLIC INTEREST.  P. 383. 

(D)  RESPONDENT'S FOREIGN BRANCH WAS NOT A "SEPARATE ENTITY" WITHOUT
THE REACH OF THE DISTRICT COURT'S IN PERSONAM ORDER.  P. 384. 

(E)  THE DISTRICT COURT RESERVED POWER TO ENTER A PROTECTIVE ORDER
UPON A SHOWING, THOUGH NONE HAS BEEN MADE, THAT THE "FREEZING" OF THE
FOREIGN BRANCH ACCOUNT WOULD VIOLATE FOREIGN LAW OR SUBJECT RESPONDENT
TO THE RISK OF DOUBLE LIABILITY, AND THAT COURT IS OPEN TO ANY
REPRESENTATIONS WHICH THE EXECUTIVE BRANCH MIGHT MAKE THAT SUCH
"FREEZING" WOULD EMBARRASS THIS COUNTRY'S FOREIGN RELATIONS.  P. 384. 

UNITED STATES V. FIRST NATIONAL CITY BANK. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A COLLATERAL PHASE OF LITIGATION INVOLVING
JEOPARDY ASSESSMENTS OF SOME $19,000,000 MADE BY THE COMMISSIONER OF
INTERNAL REVENUE AGAINST OMAR, S.A., A URUGUAYAN CORPORATION.  THE
ASSESSMENTS CHARGED THAT INCOME HAD BEEN REALIZED WITHIN THE UNITED
STATES ON WHICH A TAX WAS DUE.  ON THE SAME DAY RESPONDENT WAS SERVED
WITH NOTICE OF LEVY AND NOTICE OF THE FEDERAL TAX LIEN.  AT THE SAME
TIME PETITIONER COMMENCED AN ACTION IN THE NEW YORK DISTRICT COURT
NAMING OMAR, AS WELL AS RESPONDENT AND OTHERS, AS DEFENDANTS.  PERSONAL
JURISDICTION OVER RESPONDENT WAS ACQUIRED; BUT AS OF THE DATE OF
ARGUMENT OF THE CASE HERE, OMAR HAD NOT YET BEEN SERVED.  THAT ACTION
REQUESTED, INTER ALIA, FORECLOSURE OF THE TAX LIEN UPON ALL OF OMAR'S
PROPERTY, INCLUDING SUMS HELD FOR THE ACCOUNT OR CREDIT OF OMAR IN
FOREIGN BRANCH OFFICES OF RESPONDENT.  (FN1)  IT ALSO REQUESTED THAT,
PENDING DETERMINATION OF THE ACTION, RESPONDENT BE ENJOINED FROM
TRANSFERRING ANY PROPERTY OR RIGHTS TO PROPERTY HELD FOR THE ACCOUNT OF
OMAR; AND AFFIDAVITS FILED WITH THE COMPLAINT AVERRED THAT OMAR WAS
REMOVING ITS ASSETS FROM THE UNITED STATES. 

THE DISTRICT COURT, ON THE BASIS OF THE AFFIDAVITS, ISSUED A TEMPORARY
INJUNCTION ENJOINING RESPONDENT FROM TRANSFERRING ANY PROPERTY OR
RIGHTS TO PROPERTY OF OMAR NOW HELD BY IT OR BY ANY BRANCH OFFICES
WITHIN OR WITHOUT THE UNITED STATES, INDICATING IT WOULD MODIFY THE
ORDER SHOULD COMPLIANCE BE SHOWN TO VIOLATE FOREIGN LAW.  210 F. SUPP.
773.  THE COURT OF APPEALS REVERSED BY A DIVIDED VOTE BOTH BY A PANEL
OF THREE, 321 F.2D 14, AND EN BANC, 325 F.2D 1020.  THE CASE IS HERE ON
A WRIT OF CERTIORARI.  377 U.S. 951. 

TITLE 26 U.S.C. SEC. 7402(A) GIVES THE DISTRICT COURT POWER TO GRANT
INJUNCTIONS "NECESSARY OR APPROPRIATE FOR THE ENFORCEMENT OF THE
INTERNAL REVENUE LAWS."  SINCE IT HAS PERSONAL JURISDICTION OVER
RESPONDENT, HAS IT POWER TO GRANT THE INTERIM RELIEF REQUESTED?  WE ARE
ADVISED THAT RESPONDENT'S ONLY DEBT TO OMAR IS PAYABLE AT RESPONDENT'S
BRANCH IN MONTEVIDEO.  IT IS SAID THAT THE UNITED STATES, THE CREDITOR,
CAN ASSERT AGAINST RESPONDENT IN NEW YORK ONLY THOSE RIGHTS THAT OMAR,
THE DEBTOR, HAS AGAINST RESPONDENT IN NEW YORK AND THAT UNDER NEW YORK
LAW A DEPOSITOR IN A FOREIGN BRANCH HAS AN ACTION AGAINST THE HEAD
OFFICE ONLY WHERE THERE HAS BEEN A DEMAND AND WRONGFUL REFUSAL AT THE
FOREIGN BRANCH.  SOKOLOFF V. NATIONAL CITY BANK, 239 N.Y. 158, 145 N.E.
917, 250 N.Y. 69, 164 N.E. 745.  THE POINT IS EMPHASIZED BY THE
ARGUMENT THAT ANY OBLIGATION OF RESPONDENT TO OMAR IS DUE ONLY IN
MONTEVIDEO - AN OBLIGATION APPARENTLY DISCHARGEABLE IN URUGUAYAN
CURRENCY, NOT IN DOLLARS.  THEREFORE, THE ARGUMENT RUNS, THERE IS NO
CLAIM OF THE DEBTOR (OMAR) IN NEW YORK WHICH THE CREDITOR CAN REACH. 

WE NEED NOT CONSIDER AT THIS JUNCTURE ALL THE REFINEMENTS OF THAT
REASONING.  FOR THE NARROW ISSUE FOR US IS WHETHER THE CREDITOR (THE
UNITED STATES) MAY BY INJUNCTION PENDENTE LITE PROTECT WHATEVER RIGHTS
THE DEBTOR (OMAR) MAY HAVE AGAINST RESPONDENT WHO IS BEFORE THE COURT
ON PERSONAL SERVICE.  IF IT WERE CLEAR THAT THE DEBTOR (OMAR) WERE
BEYOND REACH OF THE DISTRICT COURT SO FAR AS PERSONAL SERVICE IS
CONCERNED, WE WOULD HAVE QUITE A DIFFERENT CASE - ONE ON WHICH WE
INTIMATE NO OPINION.  BUT UNDER SEC. 302(A) OF THE NEW YORK CIVIL
PRACTICE LAW AND RULES, 7B MCKINNEY'S CONSOL.  LAWS ANN., SEC. 302,
PERSONAL JURISDICTION MAY BE EXERCISED OVER A "NON-DOMICILIARY" WHO
"TRANSACTS ANY BUSINESS WITHIN THE STATE" AS TO A CAUSE OF ACTION
ARISING OUT OF SUCH TRANSACTION, IN WHICH EVENT OUT-OF-STATE PERSONAL
SERVICE MAY BE MADE AS PROVIDED IN SEC. 313.  (FN2)  THE FEDERAL RULES
OF CIVIL PROCEDURE BY RULE 4(E) AND RULE 4(F) ALLOW A PARTY NOT AN
INHABITANT OF THE STATE OR FOUND THEREIN TO BE SERVED WITH A SUMMONS IN
A FEDERAL COURT IN THE MANNER AND UNDER THE CIRCUMSTANCES PRESCRIBED BY
A STATE STATUTE.  (FN3)  SEE UNITED STATES V. MONTREAL TRUST CO., 35
F.R.D. 216. 

TO BE SURE, THIS CAUSE OF ACTION AROSE, THE COMPLAINT WAS FILED, AND
THE TEMPORARY INJUNCTION WAS ISSUED BEFORE THE NEW YORK STATUTE BECAME
EFFECTIVE.  THE NEW YORK COURT OF APPEALS HAS, HOWEVER, INDICATED THAT
WHERE THE SUIT IS INSTITUTED AFTER THE EFFECTIVE DATE OF THE STATUTE,
THE STATUTE WILL NORMALLY APPLY TO TRANSACTIONS OCCURRING BEFORE THE
EFFECTIVE DATE.  SIMONSON V. INTERNATIONAL BANK, 14 N.Y.2D 281, 290,
200 N.E.2D 427, 432.  THAT COURT HAS FURTHER INDICATED THAT WHERE, AS
IN THE INSTANT CASE, THE SUIT BASED ON THE PRIOR TRANSACTION WAS
PENDING ON THE EFFECTIVE DATE OF THE STATUTE, "THE NEW ACT SHALL -
EXCEPT WHERE IT 'WOULD NOT BE FEASIBLE OR WOULD WORK INJUSTICE' - APPLY
'TO ALL FURTHER PROCEEDINGS' IN SUCH ACTIONS  ...  ."  (FN4)  IBID.  IT
SEEMS OBVIOUS THAT A FUTURE ATTEMPT BY THE GOVERNMENT TO SERVE PROCESS
ON OMAR WOULD BE CONSIDERED A "FURTHER PROCEEDING" IN THE INSTANT
LITIGATION.  ACCORDINGLY, WE JUDGE THE TEMPORARY INJUNCTION, WHICH HAS
ONLY A PROSPECTIVE APPLICATION, AS OF NOW AND IN LIGHT OF THE PRESENT
REMEDY WHICH SEC. 302(A) AFFORDS.  (FN5)  AND OUR REVIEW OF THE
INJUNCTION AS AN EXERCISE OF THE EQUITY POWER GRANTED BY 26 U.S.C. SEC.
7402(A) MUST BE IN LIGHT OF THE PUBLIC INTEREST INVOLVED:  "COURTS OF
EQUITY MAY, AND FREQUENTLY DO, GO MUCH FARTHER BOTH TO GIVE AND
WITHHOLD RELIEF IN FURTHERANCE OF THE PUBLIC INTEREST THAN THEY ARE
ACCUSTOMED TO GO WHEN ONLY PRIVATE INTERESTS ARE INVOLVED."  VIRGINIAN
R. CO. V. FEDERATION, 300 U.S. 515, 552.  AND SEE UNITED STATES V.
MORGAN, 307 U.S. 183, 194; HECHT CO. V. BOWLES, 321 U.S. 321, 330. 

IF PERSONAL JURISDICTION OVER OMAR IS ACQUIRED, THE CREDITOR (THE
UNITED STATES) WILL BE ABLE TO COLLECT FROM RESPONDENT WHAT THE DEBTOR
(OMAR) COULD COLLECT.  THE OPPORTUNITY TO MAKE THAT COLLECTION SHOULD
NOT BE LOST IN LIMINE MERELY BECAUSE THE DEBTOR (OMAR) HAS NOT MADE THE
AGREED-UPON DEMAND ON RESPONDENT AT THE TIME AND PLACE AND IN THE
MANNER PROVIDED IN THEIR CONTRACT. 

WHETHER THE MONTEVIDEO BRANCH IS A "SEPARATE ENTITY," AS THE COURT OF
APPEALS THOUGHT, IS NOT GERMANE TO THE PRESENT NARROW ISSUE.  IT IS NOT
A SEPARATE ENTITY IN THE SENSE THAT IT IS INSULATED FROM RESPONDENT'S
MANAGERIAL PREROGATIVES.  RESPONDENT HAS ACTUAL, PRACTICAL CONTROL OVER
ITS BRANCHES; IT IS ORGANIZED UNDER A FEDERAL STATUTE, 12 U.S.C.  SEC.
24, WHICH AUTHORIZES IT "TO SUE AND BE SUED, COMPLAIN AND DEFEND, IN
ANY COURT OF LAW AND EQUITY, AS FULLY AS NATURAL PERSONS" - AS ONE
ENTITY, NOT BRANCH BY BRANCH.  THE BRANCH BANK'S AFFAIRS ARE,
THEREFORE, AS MUCH WITHIN THE REACH OF THE IN PERSONAM ORDER ENTERED BY
THE DISTRICT COURT AS ARE THOSE OF THE HOME OFFICE.  ONCE PERSONAL
JURISDICTION OF A PARTY IS OBTAINED, THE DISTRICT COURT HAS AUTHORITY
TO ORDER IT TO "FREEZE" PROPERTY UNDER ITS CONTROL, WHETHER THE
PROPERTY BE WITHIN OR WITHOUT THE UNITED STATES.  SEE NEW JERSEY V. NEW
YORK CITY, 283 U.S. 473, 482. 

THAT IS NOT TO SAY THAT A FEDERAL COURT IN THIS COUNTRY SHOULD TREAT
ALL THE AFFAIRS OF A BRANCH BANK THE SAME AS IT WOULD THOSE OF THE HOME
OFFICE.  FOR OVERSEAS TRANSACTIONS ARE OFTEN CAUGHT IN A WEB OF
EXTRATERRITORIAL ACTIVITIES AND FOREIGN LAW BEYOND THE KEN OF OUR
FEDERAL COURTS OR THEIR COMPETENCE.  WE HAVE, HOWEVER, NO SUCH
INVOLVEMENT HERE, FOR THERE IS NO SHOWING THAT THE MERE "FREEZING" OF
THE MONTEVIDEO ACCOUNTS, PENDING SERVICE ON OMAR, WOULD VIOLATE FOREIGN
LAW, CF. SOCIETE INTERNATIONALE V. ROGERS, 357 U.S. 197, 211, OR PLACE
RESPONDENT UNDER ANY RISK OF DOUBLE LIABILITY.  CF. WESTERN UNION CO.
V. PENNSYLVANIA, 368 U.S. 71.  THE DISTRICT COURT RESERVED POWER TO
ENTER ANY PROTECTIVE ORDER OF THAT CHARACTER.  210 F. SUPP. 773, 775. 
AND IF, AS IS ARGUED IN DISSENT, THE LITIGATION MIGHT IN TIME BE
EMBARRASSING TO UNITED STATES DIPLOMACY, THE DISTRICT COURT REMAINS
OPEN TO THE EXECUTIVE BRANCH, WHICH, IT MUST BE REMEMBERED, IS THE
MOVING PARTY IN THE PRESENT PROCEEDING. 

THE TEMPORARY INJUNCTION ISSUED BY THE DISTRICT COURT SEEMS TO US TO
BE EMINENTLY APPROPRIATE TO PREVENT FURTHER DISSIPATION OF ASSETS.  SEE
UNITED STATES V. MORRIS & ESSEX R. CO., 135 F.2D 711, 713-714.  IF SUCH
RELIEF WERE BEYOND THE AUTHORITY OF THE DISTRICT COURT, FOREIGN
TAXPAYERS FACING JEOPARDY ASSESSMENTS MIGHT EITHER TRANSFER ASSETS
ABROAD OR DISSIPATE THOSE IN FOREIGN ACCOUNTS UNDER CONTROL OF AMERICAN
INSTITUTIONS BEFORE PERSONAL SERVICE ON THE FOREIGN TAXPAYER COULD BE
MADE.  SUCH A SCHEME WAS UNDERFOOT HERE, THE AFFIDAVITS AVER.  UNLIKE
DE BEERS MINES V. UNITED STATES, 325 U.S. 212, THERE IS HERE PROPERTY
WHICH WOULD BE "THE SUBJECT OF THE PROVISIONS OF ANY FINAL DECREE IN
THE CAUSE."  ID., 220.  WE CONCLUDE THAT THIS TEMPORARY INJUNCTION IS
"A REASONABLE MEASURE TO PRESERVE THE STATUS QUO" (DECKERT V.
INDEPENDENCE SHARES CORP., 311 U.S. 282, 290) PENDING SERVICE OF
PROCESS ON OMAR AND AN ADJUDICATION OF THE MERITS.  REVERSED. 

FN1  THESE BRANCHES ARE NOT SEPARATE CORPORATIONS BUT PARTS OF
RESPONDENT'S SINGLE, FEDERALLY CHARTERED CORPORATION.  SEE 12 U.S.C.
SECS. 601-604; FIRST NATIONAL CITY BANK V. INTERNAL REVENUE SERVICE,
271 F.2D 616. 

FN2  THERE IS ALSO OF COURSE THE POSSIBILITY THAT OMAR MIGHT ENTER A
GENERAL APPEARANCE AS IT APPARENTLY DID IN THE TAX COURT WHEN IT FILED
ITS PETITION OF MAY 21, 1963, FOR A REDETERMINATION OF THE DEFICIENCIES
ON THE BASIS OF WHICH THE PRESENT JEOPARDY ASSESSMENTS WERE MADE. 

FN3  RULE 4(E), EFFECTIVE JULY 1, 1963, READS IN RELEVANT PART: 

"WHENEVER A STATUTE OR RULE OF COURT OF THE STATE IN WHICH THE
DISTRICT COURT IS HELD PROVIDES (1) FOR SERVICE OF A SUMMONS, OR OF A
NOTICE, OR OF AN ORDER IN LIEU OF SUMMONS UPON A PARTY NOT AN
INHABITANT OF OR FOUND WITHIN THE STATE, OR (2) FOR SERVICE UPON OR
NOTICE TO HIM TO APPEAR AND RESPOND OR DEFEND IN AN ACTION BY REASON OF
THE ATTACHMENT OR GARNISHMENT OR SIMILAR SEIZURE OF HIS PROPERTY
LOCATED WITHIN THE STATE, SERVICE MAY IN EITHER CASE BE MADE UNDER THE
CIRCUMSTANCES AND IN THE MANNER PRESCRIBED IN THE STATUTE OR RULE." 

RULE 4(F), ALSO EFFECTIVE JULY 1, 1963, READS IN RELEVANT PART: 

"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 AUTHORIZED BY A STATUTE OF THE UNITED STATES OR BY THESE
RULES, BEYOND THE TERRITORIAL LIMITS OF THAT STATE." 

FN4  THE COURT OF APPEALS REACHED THESE CONCLUSIONS ON THE BASIS OF
CIVIL PRACTICE LAW AND RULES, SEC. 10003, 7B MCKINNEY'S CONSOL.  LAWS
ANN., SEC. 10003:  "THIS ACT SHALL APPLY TO ALL ACTIONS HEREAFTER
COMMENCED.  THIS ACT SHALL ALSO APPLY TO ALL FURTHER PROCEEDINGS IN
PENDING ACTIONS, EXCEPT TO THE EXTENT THAT THE COURT DETERMINES THAT
APPLICATION IN A PARTICULAR PENDING ACTION WOULD NOT BE FEASIBLE OR
WOULD WORK INJUSTICE, IN WHICH EVENT THE FORMER PROCEDURE APPLIES. 
PROCEEDINGS PURSUANT TO LAW IN AN ACTION TAKEN PRIOR TO THE TIME THIS
ACT TAKES EFFECT SHALL NOT BE RENDERED INEFFECTUAL OR IMPAIRED BY THIS
ACT." 

FN5  THAT THE GOVERNMENT HAS NOT YET ATTEMPTED TO OBTAIN PERSONAL
JURISDICTION OVER OMAR IS NOT SIGNIFICANT IN LIGHT OF THE FACT THAT
UNTIL NOW THE GOVERNMENT'S PRIMARY CONTENTION HAS BEEN THAT THE
DISTRICT COURT'S PERSONAL JURISDICTION OVER THE RESPONDENT BANK WAS BY
ITSELF AN ADEQUATE BASIS FOR THE ISSUANCE OF THE TEMPORARY INJUNCTION. 
AS THE GOVERNMENT SAID IN ITS PETITION FOR REHEARING BEFORE THE COURT
OF APPEALS:  "THE JURISDICTIONAL BASIS, THEN, FOR THE INJUNCTION ISSUED
BY THE DISTRICT COURT WAS PERSONAL JURISDICTION OVER THE BANK. 
CERTAINLY, AT THIS STAGE OF THE PROCEEDING, IT IS INCONSEQUENTIAL
WHETHER THE DISTRICT COURT HAS JURISDICTION OVER A RES OR OVER THE
TAXPAYER."  THE GOVERNMENT WENT ON TO SAY THAT IF THIS CONTENTION WAS
REJECTED, THEN IT WISHED TO ARGUE THAT THE TAX LIEN HAD ATTACHED TO
OMAR'S DEPOSITS AND THAT THESE DEPOSITS "CONSTITUTE RIGHTS TO PROPERTY
WHICH WERE WITHIN THE JURISDICTION OF THE DISTRICT COURT."  FINALLY THE
GOVERNMENT STATED:  "IT IS ONLY IN THE EVENT THAT THE COURT CONCLUDES
THAT THE LIEN DOES NOT ATTACH TO SUCH DEPOSITS THAT PERSONAL
JURISDICTION OVER OMAR BECOMES RELEVANT.  IN SUCH EVENT THE GOVERNMENT
SHOULD BE AFFORDED AN OPPORTUNITY TO OBTAIN PERSONAL JURISDICTION OVER
OMAR AND THE INJUNCTION SHOULD STAND PENDING SUCH EFFORTS."  EVEN
BEFORE THIS COURT THE GOVERNMENT ARGUES ALTERNATIVELY THAT "THE
DISTRICT COURT HAD AUTHORITY TO ENTER THE TEMPORARY INJUNCTION TO
PRESERVE FUNDS OVER WHICH IT HAD JURISDICTION QUASI IN REM," A
CONTENTION UPON WHICH, AS NOTED PREVIOUSLY, WE DO NOT PASS. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE GOLDBERG JOINS,
DISSENTING. 

THE COURT'S OPINION REFLECTS AN EXPANSIVE VIEW OF THE JURISDICTION OF
A FEDERAL COURT TO TIE UP FOREIGN OWNED AND SITUATED PROPERTY WITH
WHICH I CANNOT AGREE. 

THE INTERNAL REVENUE SERVICE FIRST FOCUSED ON OMAR, S.A., A URUGUAYAN
CORPORATION, IN 1959 WHEN OMAR FILED A RETURN SEEKING A $10,000 CREDIT
FROM A REGULATED INVESTMENT COMPANY.  INVESTIGATION OF THIS RELATIVELY
SMALL REFUND CLAIM REVEALED THE POSSIBILITY THAT IN FACT OMAR OWED A
VERY SUBSTANTIAL AMOUNT IN TAXES TO THE GOVERNMENT.  OMAR MAINTAINED
ACCOUNTS WITH SEVERAL NEW YORK SECURITIES BROKERS, AND PURCHASE AND
SALE ORDERS COMMUNICATED FROM ABROAD HAD RESULTED IN THE REALIZATION OF
LARGE PROFITS.  THE LAWYER ACTING FOR OMAR CONTENDED THAT THESE
TRANSACTIONS GAVE RISE TO NO TAX LIABILITY BECAUSE OMAR WAS NOT A
PERSONAL HOLDING COMPANY.  IN A MEETING WITH THE INVESTIGATING AGENT IN
MAY 1962, THE LAWYER WARNED THAT IF THE SERVICE PERSISTED IN ITS
ATTEMPT TO TAX OMAR AS A PERSONAL HOLDING COMPANY, "OMAR WOULD QUITE
LIKELY LIQUIDATE ITS HOLDINGS IN THE UNITED STATES, AND SEND THE MONEY
OUT OF THE COUNTRY."  (FN1)    THE SERVICE DID PERSIST.  ON OCTOBER 31,
1962, IT ISSUED JEOPARDY ASSESSMENTS AGAINST OMAR TOTALING $19,300,000,
AND ON THE SAME DAY FILED A COMPLAINT IN THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK NAMING AS DEFENDANTS OMAR, THE BROKERAGE
HOUSES WITH WHICH OMAR HAD DEALT, AND SEVERAL BANKS INCLUDING THE FIRST
NATIONAL CITY BANK (HEREINAFTER CITIBANK) WHICH IS THE RESPONDENT
HERE.  BY THIS TIME OMAR HAD IN LARGE PART SUCCEEDED IN LIQUIDATING ITS
SECURITIES AND TRANSFERRING THE FUNDS OUT OF THE COUNTRY.  SOME OF THE
FUNDS WERE APPARENTLY TRANSFERRED TO CITIBANK'S BRANCH IN MONTEVIDEO,
URUGUAY, AND WERE ON DEPOSIT THERE ON THE DAY THE COMPLAINT WAS FILED. 
AS PART OF THE RELIEF SOUGHT, THE GOVERNMENT ASKED THE DISTRICT COURT
TO "FREEZE" THIS ACCOUNT (WE ARE NOT INFORMED AS TO ITS SIZE) UNTIL
SUCH TIME AS PERSONAL JURISDICTION COULD BE OBTAINED OVER OMAR. 
CITIBANK CONTESTED THE AUTHORITY OF THE COURT TO MAKE SUCH AN ORDER ON
THE GROUND THAT THE ACCOUNT HAD ITS SITUS IN MONTEVIDEO AND WAS
THEREFORE BEYOND THE JURISDICTION OF THE COURT.  PERSONAL JURISDICTION
OVER OMAR HAD NOT BEEN OBTAINED AT THE TIME THE COMPLAINT WAS FILED,
AND HAS NOT BEEN OBTAINED IN THE TWO YEARS SINCE.  OMAR IS THUS NOT A
PARTY TO THE PRESENT LITIGATION.  PERSONAL JURISDICTION OVER CITIBANK
WAS OBTAINED BY SERVICE UPON ITS HOME OFFICE AT 55 WALL STREET, NEW
YORK CITY. 

THE ISSUE PRESENTED BY THE CASE IS:  DID THE FEDERAL DISTRICT COURT
HAVE JURISDICTION TO FREEZE THE ACCOUNT IN MONTEVIDEO BY ENJOINING
CITIBANK FROM TRANSFERRING ANY PROPERTY OR RIGHTS TO PROPERTY HELD
THEREIN FOR OMAR?  THE GOVERNMENT ARGUES THAT JURISDICTION COULD STEM
FROM EITHER OF TWO SOURCES:  JURISDICTION QUASI IN REM OVER THE DEBT
OWING FROM CITIBANK'S MONTEVIDEO BRANCH TO OMAR; OR PERSONAL
JURISDICTION OVER CITIBANK, WHICH IS CAPABLE OF CONTROLLING THE DEBT
EVEN THOUGH ITS SITUS MAY BE OUTSIDE THE COURT'S JURISDICTION.  DESPITE
ITS ENIGMATIC AND UNSUPPORTED STATEMENT THAT "THERE IS HERE PROPERTY
WHICH WOULD BE 'THE SUBJECT OF THE PROVISIONS OF ANY FINAL DECREE IN
THE CAUSE,'" ANTE, P. 385, THE COURT DOES NOT DECIDE THE QUASI IN REM
ISSUE ON WHICH THE DISTRICT COURT RELIED.  THE OPINION RESTS ENTIRELY
ON THE PERSONAL JURISDICTION THEORY.  BOTH THEORIES ARE, IN MY VIEW,
DEMONSTRABLY INSUFFICIENT. 

       I.

                             PERSONAL JURISDICTION. 

THE COURT UPHOLDS THE FREEZE ORDER ON THE BASIS THAT THE DISTRICT
COURT, PENDING ACQUISITION OF PERSONAL JURISDICTION OVER OMAR, HAD
AUTHORITY TO ENJOIN CITIBANK (OVER WHICH IT DID HAVE PERSONAL
JURISDICTION) FROM ALLOWING ITS MONTEVIDEO BRANCH TO TRANSFER THE FUNDS
TO OMAR. 

THERE CAN BE NO DOUBT THAT THE ENFORCEMENT POWERS AVAILABLE TO THE
DISTRICT COURT WERE ADEQUATE TO ACCOMPLISH THAT MUCH OF THE END IN
VIEW.  CITIBANK WAS BEFORE THE COURT.  IT HAD SUFFICIENT CONTROL OVER
THE MONTEVIDEO BRANCH TO REQUIRE COMPLIANCE WITH THE FREEZE ORDER, AND
IF IT DID NOT EXERCISE THAT CONTROL, THE SANCTIONS OF CONTEMPT COULD BE
INFLICTED ON OFFICERS AND PROPERTY OF CITIBANK WITHIN THE NEW YORK
DISTRICT.  (FN2)  BUT "JURISDICTION" IS NOT SYNONYMOUS WITH NAKED
POWER.  IT IS A COMBINATION OF POWER AND POLICY.  JUDGE LEARNED HAND
MADE THIS POINT IN AMEY V. COLEBROOK GUARANTY SAV. BANK, 92 F.2D 62, A
CASE CONTAINING SOME OF THE SAME ELEMENTS AS THE CASE BEFORE US.  IN
REVERSING SO MUCH OF AN INTERLOCUTORY DECREE OF A FEDERAL JUDGE SITTING
IN VERMONT AS PROVIDED FOR THE CUTTING OF TIMBER IN MAINE, JUDGE HAND
SAID: 

"THE WORD, 'JURISDICTION,' IS IN THIS CONNECTION SOMEWHAT EQUIVOCAL;
IN ONE SENSE THE JUDGE HAD IT; THE BANK HAD PERSONALLY APPEARED AND WAS
SUBJECT TO HIS ORDERS, AS FAR AS ANY CORPORATION CAN BE; HE MIGHT
SEQUESTER ITS PROPERTY IN VERMONT, IF HE COULD FIND ANY, OR HE MIGHT
PROCEED AGAINST ITS OFFICERS AS FOR A CONTEMPT.  BUT ALTHOUGH HE THUS
HAD THE POWER TO PREVENT THE DEFENDANT FROM ASSERTING ITS RIGHTS IN
MAINE, IT MIGHT STILL BE IMPROPER FOR HIM TO DO SO.  COURTS DO NOT
ALWAYS EXERT THEMSELVES TO THE FULL, OR DIRECT PARTIES TO DO ALL THAT
THEY CAN EFFECTIVELY COMPEL, AND SUCH FORBEARANCE IS SOMETIMES CALLED
LACK OF 'JURISDICTION.'  WHAT RESERVES A COURT SHALL MAKE, WHEN DEALING
WITH REAL PROPERTY BEYOND ITS TERRITORY, IS NOT ALTOGETHER PLAIN; AS TO
SOME THINGS, IT WILL ACT FREELY WHEN IT HAS BEFORE IT THOSE WHO HOLD
THE LEGAL INTERESTS."  92 F.2D, AT 63. 

THE REAL PROBLEM WITH THIS PHASE OF THE CASE IS THEREFORE THIS:
GRANTING THAT THE DISTRICT COURT HAD THE NAKED POWER TO CONTROL THE
MONTEVIDEO ACCOUNT BY BRINGING TO BEAR COERCIVE ACTION ON CITIBANK,
OUGHT THE COURT TO HAVE EXERCISED IT?  OR TO PUT THE QUESTION IN THE
STATUTORY TERMS, (FN3) WAS THE COURT'S ORDER "APPROPRIATE" FOR THE
ENFORCEMENT OF THE INTERNAL REVENUE LAWS? 

1.  NEED FOR PERSONAL JURISDICTION OVER OMAR. 

WE SHOULD FIRST CONSIDER THE QUESTION IN ITS STARKEST FORM.  ASSUMING
THAT THERE IS NO QUASI IN REM JURISDICTION OVER THE PROPERTY (SEE PART
IV, INFRA, P. 404) AND NO REASONABLE LIKELIHOOD OF OBTAINING PERSONAL
JURISDICTION OVER OMAR, WHY SHOULD THE COURT NOT USE ITS NAKED POWER,
TO THE EXTENT THAT IT COULD BE BROUGHT TO BEAR ON OTHERS SITUATED AS
WAS CITIBANK, TO TIE UP OMAR'S PROPERTY ALL OVER THE WORLD FOR THE
AVOWED PURPOSE OF COERCING OMAR INTO PAYING ITS TAXES? 

USE OF JUDICIAL EQUITY POWERS TO COERCE A PARTY OVER WHOM THE COURT
HAS NO JURISDICTION OR LIKELIHOOD OF OBTAINING JURISDICTION IS UNHEARD
OF.  THE STATUTE AUTHORIZING COURTS TO RENDER SUCH DECREES AS MAY BE
"NECESSARY OR APPROPRIATE FOR THE ENFORCEMENT OF THE INTERNAL REVENUE
LAWS" CLEARLY INTENDS THAT COURTS USE ONLY THEIR TRADITIONAL EQUITY
POWERS TO THAT END.  (FN4)  IT SHOULD NOT BE INTERPRETED AS AN
AUTHORIZATION TO EMPLOY RADICALLY NEW AND EXTREMELY FAR-REACHING FORMS
OF COERCIVE ACTION IN A MORE FREEWHEELING APPROACH TO INTERNATIONAL
THAN TO DOMESTIC CASES.  (FN5) NEITHER THE GOVERNMENT NOR THE COURT
ARGUES FOR SUCH AN EXTRAORDINARY JUDICIAL USE OF POWER.  SUFFICE IT TO
SAY THAT IF THE CONTRARY POSITION WERE TAKEN, SERIOUS CONSTITUTIONAL
PROBLEMS WOULD ARISE. 

2.  IMPROBABILITY OF OBTAINING PERSONAL JURISDICTION OVER OMAR AS OF
THE TIME THE INJUNCTION WAS ISSUED. 

IT IS BASIC TO TRADITIONAL NOTIONS OF EQUITY THAT TO JUSTIFY THE
ISSUANCE OF A PROTECTIVE TEMPORARY INJUNCTION THERE MUST EXIST A
SUBSTANTIAL PROBABILITY THAT JURISDICTION, JUDGMENT, AND ENFORCEMENT
WILL BE OBTAINED WITH RESPECT TO THE PERSON SOUGHT TO BE AFFECTED. 
(FN6)  THE COURT DOES NOT AND COULD NOT CONTEST THIS PROPOSITION, AND
VIRTUALLY CONCEDES THAT AT THE TIME THE INJUNCTION WAS ISSUED, THE
GOVERNMENT HAD INSUFFICIENT PROBABILITY OF OBTAINING PERSONAL
JURISDICTION OVER OMAR TO JUSTIFY THE ISSUANCE OF THE FREEZE ORDER. 
THE COURT ALONE RELIES, DID NOT BECOME EFFECTIVE UNTIL 10 MONTHS
LATER.  (FN7) 

NO OTHER THEORY IS OFFERED BY THE COURT WHICH COULD JUSTIFY THE
FREEZE ORDER AS OF THE TIME AT WHICH IT WAS ISSUED.  (FN8) 

3.  EVALUATING THE INJUNCTION "AS OF NOW." 

THE ONLY COURSE LEFT OPEN TO THE COURT ON ITS THEORY OF THE CASE IS
TO JUDGE THE INJUNCTION "AS OF NOW."  INDEED THE NEW YORK COURT OF
APPEALS RULED IN SIMONSON V. INTERNATIONAL BANK, 14 N.Y.2D 281, 200
N.E.2D 427, THAT SEC. 302(A) DOES NOT RETROACTIVELY VALIDATE ACTIONS IN
PENDING CASES TAKEN BEFORE ITS ENACTMENT, AND MAY BE APPLIED TO FURTHER
PROCEEDINGS IN PENDING CASES ONLY IF IT IS EQUITABLE TO DO SO.  (FN9)
THUS EVEN ON THE GLIB ASSUMPTION THAT NEW YORK COURTS WOULD INTERPRET
SEC. 302(A) TO GIVE PERSONAL JURISDICTION OVER ONE WHO MERELY TRADED
LONG DISTANCE FOR HIS OWN ACCOUNT ON THE NEW YORK EXCHANGES, (FN10) THE
COURT MUST NONETHELESS SHOW, AS A MATTER OF BOTH STATE AND FEDERAL LAW,
THAT THERE IS EQUITY IN CONTINUING THE EXISTENCE OF THE FREEZE ORDER. 
THERE ARE TWO INESCAPABLE REASONS WHY SUCH A SHOWING IS IMPOSSIBLE. 

(A)  THE SO-CALLED "TEMPORARY" FREEZE ORDER HAS NOW BEEN IN EFFECT
FOR OVER TWO YEARS.  DURING THIS TIME NO FORM OF JURISDICTION OVER OMAR
HAS BEEN OBTAINED.  IT MAY BE ARGUED THAT IT IS THIS APPELLATE REVIEW
WHICH HAS BEEN THE CAUSE OF DELAY.  BUT OMAR IS NOT PARTY TO THIS
REVIEW.  THE CONTESTING PARTIES ARE THE GOVERNMENT AND CITIBANK. 
NOTHING PERTAINING TO THESE PROCEEDINGS PRECLUDED OR EXCUSED THE
GOVERNMENT FROM OBTAINING PERSONAL JURISDICTION OVER OMAR AND
PROCEEDING WITH THE CASE IF IT WAS OTHERWISE ABLE TO DO SO.  AS FAR AS
OMAR IS CONCERNED, ITS PROPERTY HAS BEEN TAKEN FROM ITS CONTROL BY A
COURT HAVING JURISDICTION NEITHER OVER THE CORPORATION NOR OVER THE
PROPERTY (SEE PART IV, INFRA, P. 404), PRIOR TO ANY JUDGMENT OF
LIABILITY BEING ENTERED AGAINST IT, AND DURING A TIME WHEN THE
URUGUAYAN PESO HAS FALLEN OVER 60%.  (FN11)  THE GOVERNMENT HAD ITS
CHANCE TO REACH OMAR'S PROPERTY BEFORE IT WAS REMOVED FROM THE
COUNTRY.  INDEED, IT WAS WARNED (SUPRA, P. 386), AND MADE NO LEGAL MOVE
UNTIL SEVERAL MONTHS LATER.  IT MADE NO EFFORT TO OBTAIN PERSONAL
JURISDICTION OVER OMAR WITHIN A REASONABLE TIME AFTER THE "TEMPORARY"
INJUNCTION WAS ISSUED; OR AFTER SEC. 302(A) WAS ENACTED; OR AFTER THE
DATE AT WHICH IT SUPPOSEDLY ALTERED THE THEORY ON WHICH IT CHOSE TO
ARGUE ITS CASE.  THE COURT EXPRESSES THE OPINION THAT THIS LATTER
EVENT, OBVIOUSLY IRRELEVANT TO THE EQUITIES OF OMAR AND CITIBANK,
SOMEHOW EXPLAINS AND EXCUSES THE GOVERNMENT'S FAILURE TO HAVE ACQUIRED
PERSONAL JURISDICTION OVER OMAR.  THIS IS SURELY UNTENABLE.  THE
PETITION FOR REHEARING WAS FILED ON JULY 10, 1963, FOLLOWING THE
INITIAL COURT OF APPEALS' OPINION AND PRIOR TO THE OPINION OF THE COURT
EN BANC.  OVER 18 MONTHS HAVE ELAPSED SINCE THAT TIME.  WERE THIS IN
ITSELF NOT CONCLUSIVE, THE GOVERNMENT STATED UNEQUIVOCALLY AND AS ITS
VERY FIRST GROUND FOR REHEARING: 

"THE UNITED STATES, WHICH IN THIS ACTION SEEKS INTER ALIA A JUDGMENT
IN PERSONAM AGAINST OMAR, IS TAKING NECESSARY STEPS TO EFFECTUATE
PERSONAL JURISDICTION OVER OMAR." 

IN THE FACE OF THIS STATEMENT THERE IS NO WAY THAT THE COURT CAN
EXCUSE OR AVOID THE FACT THAT THE GOVERNMENT, BY REASON OF EITHER
NEGLECT OR INABILITY, HAS FAILED TO ACQUIRE JURISDICTION OVER OMAR IN
THE AMPLE TIME WHICH HAS BEEN AVAILABLE TO IT.  YET THE COURT
INEXPLICABLY FINDS EQUITY IN CONTINUING THE FREEZE ORDER.  (FN12)
OMAR, AS A FOREIGN CORPORATION WHICH ALLEGEDLY WITHDREW ITS ASSETS TO
AVOID TAXATION BY THIS COUNTRY, NATURALLY DOES NOT PRESENT A
SYMPATHETIC ASPECT TO THIS COURT, BUT THAT IS NO JUSTIFICATION FOR
PERPETUATING A "TEMPORARY" ORDER WHICH, WITHOUT ANY JURISDICTIONAL
BASIS, HAS TIED UP OMAR'S PROPERTY FOR OVER TWO YEARS.  (FN13)  ALLEGED
TAX DODGERS, AS MUCH AS THOSE CHARGED WITH CRIME, ARE ENTITLED TO DUE
PROCESS TREATMENT.  AND THE HAND OF EQUITY SHOULD BE STAYED LONG BEFORE
IT REACHES CONSTITUTIONAL LIMITS. 

(B)  WHETHER THE SITUATION IS EXAMINED AS OF THE TIME THE ORDER
ORIGINALLY ISSUED OR AS OF NOW, THE GOVERNMENT HAS TO SHOW THAT THE
FUNDS TO BE FROZEN MAY BE SUBJECT TO ULTIMATE EXECUTION.  IF THE
PROPERTY CANNOT BE SUBJECTED TO GOVERNMENT LEVY, THERE IS OBVIOUSLY NO
EQUITY IN FREEZING IT.  THAT IS THE SITUATION PRESENTED HERE.  THE
QUASI IN REM STATUTE DOES NOT PERMIT THE COURT TO ATTACH THE PROPERTY
DIRECTLY (SEE PART IV, INFRA, P. 404), AND NO VIEW IS EXPRESSED BY THE
COURT AS TO HOW OR WHETHER THIS DIFFICULTY COULD BE AVOIDED. 

THE GOVERNMENT ARGUES THAT THIS OBSTACLE CAN BE SKIRTED IN THE
FOLLOWING FASHION.  PERSONAL JURISDICTION UNDER SEC. 302 CAN BE
OBTAINED OVER OMAR BY MAILING A LETTER TO URUGUAY PURSUANT TO NEW
YORK'S SUBSTITUTED SERVICE STATUTE.  (FN14)  JUDGMENT CAN THEN BE
OBTAINED TOGETHER WITH AN ORDER TO OMAR TO TRANSFER THE FUNDS IN THE
MONTEVIDEO ACCOUNT TO THE GOVERNMENT.  WHEN OMAR REFUSES TO COMPLY
VOLUNTARILY - IT HAS NO OFFICERS IN NEW YORK WHO COULD BE PUNISHED FOR
CONTEMPT - A COURT OFFICER APPOINTED UNDER RULE 70 OF THE FEDERAL RULES
OF CIVIL PROCEDURE COULD BE SENT TO MONTEVIDEO TO MAKE DEMAND UPON THE
CITIBANK BRANCH IN THE NAME OF THE UNITED STATES.  (FN15)  IF THE
BRANCH REFUSES PAYMENT, IT WILL BREACH ITS CONTRACT TO PAY ON DEMAND. 
AN ACTION FOR BREACH OF THE CONTRACT COULD THEN BE BROUGHT BY THE
DEPOSITOR AGAINST CITIBANK IN NEW YORK (SEE N. 27, INFRA).  ONCE THAT
OBLIGATION ACCRUES IN NEW YORK, THE GOVERNMENT CAN GARNISH IT TO
SATISFY THE PERSONAL JUDGMENT.  OF COURSE, IF THE COURT COULD DIRECTLY
ORDER CITIBANK IN NEW YORK TO PAY THE DEBT, THE OBLIGATION WOULD BE
PAYABLE "WITHIN THE DISTRICT" (SEE PART IV, INFRA, P. 404), IN WHICH
CASE THE QUASI IN REM STATUTE WOULD SERVE WITHOUT NECESSITATING
ELABORATE PERSONAL JURISDICTION THEORIES. 

THE REASONS WHY THIS PROCEDURAL CAKE-WALKING SHOULD NOT COMMEND
ITSELF ARE MANIFEST.  FOREIGN COURTS IN CUSTOMARY INTERNATIONAL
PRACTICE (WHICH URUGUAY PRESUMABLY FOLLOWS) DO NOT ENFORCE FOREIGN TAX
JUDGMENTS.  (FN16)  THEREFORE URUGUAY WOULD UNDOUBTEDLY NOT CONSIDER
VALID A DEMAND MADE BY THE COURT-APPOINTED OFFICER FOR THE PROPERTY
WITHIN URUGUAYAN BORDERS.  IF THE REFUSAL TO PAY THE COURT OFFICER IS
PROPER UNDER THE URUGUAYAN LAW WHICH GOVERNS THE CONTRACT, THERE CAN BE
NO BREACH WHICH WOULD GIVE RISE TO A CAUSE OF ACTION IN NEW YORK,
ZIMMERMANN V. SUTHERLAND, 274 U.S. 253. 

FURTHERMORE THE PROSPECT IS MORE THAN STARTLING THAT A DISTRICT
COURT, AWARE THAT A FOREIGN COUNTRY WOULD NOT ENFORCE ITS JUDGMENT,
WOULD NONETHELESS DISPATCH A COURT OFFICER TO THE FOREIGN JURISDICTION
TO ACCOMPLISH THAT END BY SELF-HELP.  (FN17)
           II.

           THE DE BEERS AND DECKERT CASES. 

IT IS SURPRISING THAT THE COURT HAS BEEN CONTENT TO SO CURSORILY LAY
ASIDE DE BEERS CONSOLIDATED MINES, LTD. V. UNITED STATES, 325 U.S. 212,
FOR UPON EXAMINATION THAT CASE WILL BE FOUND TO BE INDISTINGUISHABLE
FROM THE PRESENT CASE AND SHOULD CONTROL THIS LITIGATION ON THE
PERSONAL JURISDICTION ISSUE.    THE UNITED STATES BROUGHT A SHERMAN
ANTITRUST ACTION AGAINST DE BEERS AND OTHER AFRICAN-BASED DIAMOND
COMPANIES ALLEGING MONOPOLIZATION AND CONSPIRACY IN RESTRAINT OF
TRADE.  ALL WERE ALLEGEDLY DOING BUSINESS WITHIN THE UNITED STATES. 
WITH THE COMPLAINT THE GOVERNMENT REQUESTED A PRELIMINARY INJUNCTION
FREEZING ALL PROPERTY IN THE UNITED STATES BELONGING TO THE
DEFENDANTS.  AS STATED IN THE OPINION, THE REASONS GIVEN IN SUPPORT OF
THE MOTION WERE: 

"THE INJURY TO THE UNITED STATES OF AMERICA FROM THE WITHDRAWAL OF
SAID DEPOSITS, DIAMONDS OR OTHER PROPERTY WOULD BE IRREPARABLE BECAUSE
SEQUESTRATION OF SAID PROPERTY IS THE ONLY MEANS OF ENFORCING THIS
COURT'S ORDERS OR DECREE AGAINST SAID FOREIGN CORPORATE DEFENDANTS. 
THE PRINCIPAL BUSINESS OF SAID DEFENDANTS IS CARRIED ON IN FOREIGN
COUNTRIES AND THEY COULD QUICKLY WITHDRAW THEIR ASSETS FROM THE UNITED
STATES AND SO PREVENT ENFORCEMENT OF ANY ORDER OR DECREE WHICH THIS
COURT MAY RENDER.' 

"AMONGST OTHER SUPPORTING PAPERS WAS AN AFFIDAVIT BY COUNSEL FOR THE
UNITED STATES WHICH STATED THAT 'THE INVESTIGATION WHICH HE HAS MADE
SHOWS THE FOREIGN CORPORATE DEFENDANTS NAMED HEREIN HAVE ENDEAVORED TO
AVOID SUBJECTING THEMSELVES TO THE JURISDICTION OF THE COURTS OF THE
UNITED STATES BY MAKING THEIR SALES ABROAD ONLY AND REQUIRING CUSTOMERS
TO PAY IN ADVANCE FOR ALL PURCHASES.'"  325 U.S., AT 215-216. 

UNDER THE SHERMAN ACT DISTRICT COURTS HAD POWER "TO PREVENT AND
RESTRAIN VIOLATIONS OF THIS ACT" (26 STAT. 209, 15 U.S.C. SEC. 4 (1958
ED.)), AND, UNDER THE "ALL-WRITS" SECTION OF THE JUDICIAL CODE, TO
"ISSUE ALL WRITS NECESSARY OR APPROPRIATE IN AID OF THEIR RESPECTIVE
JURISDICTIONS AND AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW" (NOW
28 U.S.C. SEC. 1651 (1958 ED.)).  THE COURT CONSTRUED THESE GRANTS OF
AUTHORITY AS LIMITED TO TRADITIONAL EQUITABLE POWERS.  IT THEN
DEMONSTRATED THE REMOTENESS OF ANY LEVY BY THE GOVERNMENT AGAINST THE
PROPERTY OF THE DEFENDANTS, AND BECAUSE OF THE REMOTENESS VACATED THE
FREEZE ORDER.  IT SHOULD BE NOTED THAT UNLIKE THE PRESENT CASE THE
PROPERTY SOUGHT TO BE FROZEN WAS WITHIN THE BORDERS OF THE UNITED
STATES, AND, THAT WITHOUT A HOLD ON IT, AN ORDER TO THE DEFENDANTS TO
STOP THEIR ALLEGED MONOPOLISTIC PRACTICES WOULD HAVE BEEN AS LITTLE
LIKELY TO MEET WITH VOLUNTARY COMPLIANCE AS AN ORDER TO OMAR TO PAY
$19,300,000. 

THE GOVERNMENT WOULD DISTINGUISH DE BEERS ON THE GROUND THAT UNDER
THE SHERMAN ACT THE TRIAL COURT COULD AWARD ONLY INJUNCTIVE RELIEF,
WHEREAS IN THE PRESENT CASE THE JUDGMENT, WERE THE GOVERNMENT
SUCCESSFUL, WOULD BE A MONEY AWARD.  HOWEVER, THE DE BEERS COURT
RECOGNIZED THAT LEVY AGAINST THE PROPERTY COULD ULTIMATELY BE HAD AS A
MEANS OF ENFORCING THE INJUNCTIVE ORDER.  CLEARLY THE COURT'S POINT IN
EMPHASIZING THE SCOPE OF THE ORDER WHICH COULD ISSUE IN THE FIRST
INSTANCE WAS THAT THE POSSIBILITY OF AN ULTIMATE LEVY WAS TOO REMOTE IN
PRACTICAL TERMS TO JUSTIFY FREEZING THE PROPERTY FROM THE OUTSET OF THE
LITIGATION.  REMOTENESS IS THE DETERMINATIVE POINT, WHATEVER ITS CAUSE,
AND IN TERMS OF REMOTENESS THE CASE BEFORE US ARGUES EVEN STRONGER THAN
DE BEERS AGAINST THE ISSUANCE OF WHAT AMOUNTS TO AN INTERIM
SEQUESTRATION ORDER.  THE PRINCIPLES OF DE BEERS SHOULD GOVERN THIS
LITIGATION.  (FN18) 

THE GOVERNMENT PUTS FORTH DECKERT V. INDEPENDENCE SHARES CORP., 311
U.S. 282, INSTEAD OF DE BEERS AS THE CASE MOST ANALOGOUS TO THE PRESENT
ONE.  IN DECKERT A BILL IN EQUITY WAS BROUGHT AGAINST AN INSOLVENT AND
ALLEGEDLY FRAUDULENT SECURITIES VENDOR AND AGAINST A THIRD PARTY WHO
HELD ASSETS OF THE VENDOR.  BY WAY OF INTERLOCUTORY RELIEF THE
PLAINTIFFS ASKED THAT THE ASSETS IN THE HANDS OF THE THIRD PARTY BE
FROZEN, AND THIS COURT SUSTAINED THE REQUEST.  DISTINGUISHING FEATURES
ARE MANY.  DECKERT INVOLVED NO INTERNATIONAL PROBLEMS.  THE COURT HAD
PERSONAL JURISDICTION OVER ALL PARTIES CONCERNED.  THERE WAS NO
QUESTION OF POWER TO ENFORCE A JUDGMENT AGAINST THE FROZEN FUNDS.  THE
ONLY CONTINGENCY ON WHICH ENFORCEMENT DEPENDED WAS WHETHER THE
PLAINTIFF WOULD WIN THE SUIT; THUS, THERE WAS VIRTUALLY NO PROBLEM OF
REMOTENESS.  AND UNLIKE THE PRESENT CASE (SEE INFRA, PP. 404-409), THE
FROZEN FUNDS COULD HAVE BEEN ATTACHED DIRECTLY BY A SUIT QUASI IN REM
IN A STATE COURT.  (FN19)

                                       III. 

           THE OVERALL BALANCE OF EQUITIES AND

      CONSIDERATIONS AFFECTING JURISDICTION.  (FN20) 

CERTAINLY THE COURT'S REMARK THAT IT MUST ACT IN LIGHT OF THE "PUBLIC
INTEREST" CANNOT MEAN THAT BECAUSE THE GOVERNMENT IS A PARTY HERE, THE
COURT MAY IGNORE ITS DUTY TO CONSIDER THE BALANCE OF EQUITIES.  IT IS,
THEREFORE, WELL TO CONSIDER JUST WHAT OVERALL BENEFITS WILL ACCRUE IN
THE PUBLIC INTEREST AS A RESULT OF TODAY'S DECISION. 

EXCEPT IN THE CONTEXT OF THE COMPARATIVELY RARE CASE IN WHICH THE
GOVERNMENT HAS THE ELEMENT OF SURPRISE ON ITS SIDE, IT MUST BE
RECOGNIZED THAT THE UTILITY OF THE EXTRA-TERRITORIAL FREEZE ORDER AS A
TAX-COLLECTING WEAPON IS MINIMAL.  UNDER THE TAX REGULATION ADOPTED
DURING THIS ACTION THE GOVERNMENT DECLARES THAT IT WOULD USE THE FREEZE
ORDER POWER TO REACH ONLY FUNDS WHICH WERE TRANSFERRED OUT OF THIS
COUNTRY IN ORDER TO HINDER OR DELAY THE COLLECTION OF TAXES AND WHICH
WERE IN BANKS HAVING AN AMERICAN OFFICE.  (FN21)  IN OTHER WORDS, THE
REGULATION WOULD SNARE ONLY THOSE TAXPAYERS SMART AND UNSCRUPULOUS
ENOUGH TO WITHDRAW THEIR FUNDS FROM THE UNITED STATES, BUT STUPID AND
UNINFORMED ENOUGH, EVEN AFTER THIS DECISION, TO PUT THE TRANSFERRED
FUNDS IN A BANK HAVING A UNITED STATES OFFICE.  IN ORDER TO PROVIDE THE
GOVERNMENT WITH THIS TOY PISTOL, THE COURT FLEXES ITS MUSCLES IN A
MANNER NEVER BEFORE IMAGINED. 

IF THE OVERALL BENEFITS OF THIS EXERCISE OF POWER ARE MINIMAL, THE
DETRIMENTS ARE SUBSTANTIAL. 

(A)  IT WOULD EXPOSE CITIBANK, AN INNOCENT STAKEHOLDER, TO EXACTLY
THE KIND OF ADMINISTRATIVE HAZARDS WHICH NEW YORK'S "SEPARATE ENTITY"
THEORY IS DESIGNED TO OBVIATE. 

(B)  IT WOULD SUBJECT CITIBANK TO THE POSSIBILITY OF DOUBLE LIABILITY
IF URUGUAY DID NOT RECOGNIZE THE UNITED STATES' JUDGMENT, AND MULTIPLE
LIABILITY IF URUGUAY PERMITTED ACTIONS FOR SLANDER OF CREDIT.  THE
DISTRICT COURT'S OFFER TO MODIFY THE FREEZE ORDER IF CITIBANK SHOWS
THAT IT CONFLICTS WITH URUGUAYAN LAW IS SOME HEDGE AGAINST THE FIRST OF
THESE DANGERS, BUT OPERATING AT ITS BEST IT PLACES THE HEAVY BURDEN ON
CITIBANK, BLAMELESS IN THIS SITUATION, OF DISCOVERING URUGUAYAN LAW. 
IN PRACTICAL OPERATION THE URUGUAYAN LAW MAY WELL BE UNCLEAR TO THE
POINT THAT CITIBANK CAN ONLY BE SURE OF ITS OBLIGATION TO OMAR IF IT IS
SUED FOR PAYMENT AND THE MATTER IS LITIGATED.  IF OMAR IS LOATH TO SUE
FOR ONE REASON OR ANOTHER (IT MAY FEAR THAT ITS DEMAND FOR THE MONEY
AND THE BANK'S REFUSAL TO PAY IT WILL CAUSE THE OBLIGATION TO BECOME
PAYABLE IN NEW YORK), IT MAY BE IMPOSSIBLE FOR CITIBANK TO ESTABLISH
URUGUAYAN LAW BEFORE IT IS TOO LATE.  IF THE GOVERNMENT MANAGES TO LEVY
ON THE ACCOUNT, AND ONLY AFTERWARDS IS IT ESTABLISHED THAT THE BANK WAS
LIABLE TO OMAR, CITIBANK WOULD BE LEFT TO SUE THE UNITED STATES FOR
RECOUPMENT, AN EVENTUALITY FOR WHICH NO PROVISION HAS BEEN MADE AND
WHICH THE GOVERNMENT STATED AT THE ORAL ARGUMENT OF THIS CASE THAT IT
WOULD OPPOSE. 

(C)  CITIBANK ALLEGES THAT ITS FOREIGN BANKING BUSINESS WILL BE HURT
BECAUSE FOREIGN DEPOSITORS WILL BE DISCOURAGED FROM USING UNITED STATES
BANKS FOR FEAR THAT THEIR FUNDS CAN BE REACHED BY UNITED STATES
COURTS.  THERE IS NO SURE WAY TO GAUGE THE SERIOUSNESS OF THIS
POSSIBILITY, BUT SINCE CITIBANK IS AN INNOCENT STAKEHOLDER HERE, DOUBT
SHOULD BE RESOLVED IN ITS FAVOR. 

(D)  THE URUGUAY CODE OF CIVIL PROCEDURE PROVIDES, IN ROUGH
TRANSLATION: 

ART. 511.  JUDGMENTS RENDERED IN FOREIGN STATES SHALL HAVE IN THE
REPUBLIC (URUGUAY) THE EFFECT PRESCRIBED BY APPLICABLE TREATIES. 

ART. 512.  IF THERE ARE NOT TREATIES WITH THE NATION IN WHICH THEY
ARE RENDERED, THEY SHALL HAVE THE SAME EFFECT WHICH BY THE LAWS OF THAT
NATION, IT WOULD GIVE TO THE DECREES RENDERED IN THE REPUBLIC. 

ART. 513.  IF THE JUDGMENT PROCEEDS FROM A NATION IN WHICH BY ITS
JURISPRUDENCE, IT WOULD NOT GIVE EFFECT TO THE DECREES OF THE TRIBUNALS
OF THE REPUBLIC, THEY SHALL HAVE NO FORCE HERE.  (FN22) 

WHEN OMAR SUES CITIBANK IN MONTEVIDEO FOR ITS ACCOUNT, CITIBANK WILL
PLEAD THE UNITED STATES DECREE AS A DEFENSE, AND THE COURT SPECULATES
THAT URUGUAY WILL GIVE IT EFFECT (ANTE, PP. 384-385).  IN LIGHT OF
URUGUAY'S RECIPROCITY PRINCIPLE THE COURT'S DECISION IMPLICITLY
SIGNIFIES THAT OUR COURTS WOULD RECOGNIZE A SIMILAR ORDER BY A
URUGUAYAN COURT.  (FN23) OPERATING UNDER A TAX REGULATION SIMILAR TO
THAT ADOPTED BY THE GOVERNMENT, A URUGUAYAN COURT WITH JURISDICTION
OVER THE MONTEVIDEO BRANCH OF CITIBANK COULD FREEZE ACCOUNTS IN NEW
YORK.  (FN24)  I AM EXTREMELY RELUCTANT TO UPHOLD SUCH A POWER.  THE
FREEZE ORDERS OF THE TYPE IN QUESTION HERE ISSUE PRIOR TO ANY COURT
JUDGMENT, INDEED BEFORE ANY SIGNIFICANT PROCEEDINGS AT ALL.  A NATION
ASKED TO RECOGNIZE SUCH A FREEZE ORDER WILL HAVE VIRTUALLY NOTHING TO
GO ON BUT THE BARE REQUEST.  THE PROPRIETY OF THE DECREE DOES NOT EVEN
REST ON THE RELIABILITY OF THE FOREIGN COURT, AS IS THE USUAL CASE IN
JUDGMENT RECOGNITION PROBLEMS, (FN25) BUT ON THE RELIABILITY OF THE
FOREIGN TAXING AUTHORITIES, SOMETHING A DOMESTIC COURT HAS NO WAY OF
JUDGING. 

THE COURT SHOULD NOT LOSE SIGHT OF THE FACT THAT OUR MODERN NOTIONS
OF SUBSTITUTED SERVICE AND PERSONAL JURISDICTION WERE DEVELOPED WITHIN
A FRAMEWORK OF STATES WHOSE VARIOUS PROCESSES ARE GOVERNED BY THE DUE
PROCESS CLAUSE AND WHOSE JUDGMENTS MUST BE GIVEN FULL FAITH AND CREDIT
BY THE OTHER STATES WITHIN THE FEDERAL STRUCTURE.  GREAT CARE AND
RESERVE SHOULD BE EXERCISED WHEN EXTENDING OUR NOTIONS OF PERSONAL
JURISDICTION INTO THE INTERNATIONAL FIELD, BOTH AS A BASIS FOR
ASSERTING FEDERAL JUDICIAL POWER WITH RESPECT TO PROPERTY IN FOREIGN
COUNTRIES AND FOR PERMITTING PROPERTY IN THIS COUNTRY TO BE TIED UP BY
FOREIGN COURTS. 

                                    IV.

         QUASI IN REM JURISDICTION. 

THERE REMAINS FOR CONSIDERATION THE QUASI IN REM ISSUE WHICH THE
GOVERNMENT ARGUES BUT WHICH THE COURT CHOOSES NOT TO DECIDE.  WHETHER
THE DISTRICT COURT HAD QUASI IN REM JURISDICTION TURNS ON WHETHER OMAR
HAD PROPERTY OR RIGHTS TO PROPERTY WITHIN THE SOUTHERN DISTRICT OF NEW
YORK TO WHICH A FEDERAL LIEN COULD ATTACH.  (FN26)  UNDER NEW YORK LAW,
OMAR HAD ONLY A CONDITIONAL RIGHT TO PAYMENT IN NEW YORK IN THE EVENT
THAT A DEMAND MADE UPON THE MONTEVIDEO BRANCH WHERE THE ACCOUNT IS
MAINTAINED WAS WRONGFULLY REFUSED, SOKOLOFF V. NATIONAL CITY BANK, 250
N.Y. 69, 164 N.E. 745; (FN27) AND TWO RECENT DECISIONS BY THIS COURT
ESTABLISH THAT IT IS NEW YORK LAW WHICH HERE DETERMINES THE NATURE AND
EXISTENCE OF PROPERTY RIGHTS FOR FEDERAL TAX LIEN PURPOSES. 

IN UNITED STATES V. BESS, 357 U.S. 51, THE TAXPAYER DIED LEAVING
INCOME TAXES UNPAID FOR A PRIOR YEAR.  SEVERAL LIFE INSURANCE POLICIES
WERE PART OF HIS ESTATE.  THE COURT SAID: 

"WE MUST NOW DECIDE WHETHER MR. BESS POSSESSED IN HIS LIFETIME,
WITHIN THE MEANING OF SEC. 3670, ANY 'PROPERTY' OR 'RIGHTS TO PROPERTY'
IN THE INSURANCE POLICIES TO WHICH THE PERFECTED LIEN FOR THE 1946
TAXES MIGHT ATTACH.  SINCE SEC. 3670 CREATES NO PROPERTY RIGHTS BUT
MERELY ATTACHES CONSEQUENCES, FEDERALLY DEFINED, TO RIGHTS CREATED
UNDER STATE LAW,  ...  WE MUST LOOK FIRST TO MR. BESS' RIGHT IN THE
POLICIES AS DEFINED BY STATE LAW."  357 U.S., AT 55.  (FN28) 

SINCE BESS HAD HAD NO RIGHT TO THE PROCEEDS OF THE POLICIES DURING
HIS LIFETIME, NO FEDERAL TAX LIEN COULD HAVE ATTACHED TO THEM.  BUT
BESS COULD HAVE DRAWN ON THE CASH SURRENDER VALUE; THUS UNDER STATE LAW
HE HAD "RIGHTS TO PROPERTY" DURING HIS LIFETIME TO THAT EXTENT. 
HOWEVER, IT WAS ALSO TRUE UNDER STATE LAW THAT NO CREDITOR WAS
PERMITTED TO ATTACH THE CASH SURRENDER VALUE OF THE POLICIES.  IN
ANSWER TO THE CONTENTION THAT THE GOVERNMENT SHOULD BE TREATED NO
DIFFERENTLY THAN ANY OTHER CREDITOR, THE COURT SAID: 

"ONCE IT HAS BEEN DETERMINED THAT STATE LAW CREATES SUFFICIENT
INTERESTS IN THE INSURED TO SATISFY THE REQUIREMENTS OF SEC. 3670,
STATE LAW IS INOPERATIVE TO PREVENT THE ATTACHMENT OF LIENS CREATED BY
FEDERAL STATUTES IN FAVOR OF THE UNITED STATES."  357 U.S., AT 56-57. 

ON THE BASIS OF THIS ANALYSIS - THAT STATE LAW CREATES PROPERTY
RIGHTS, BUT FEDERAL LAW DETERMINES WHETHER LIENS SHOULD ATTACH TO THEM
THE COURT CONCLUDED THAT THE LIEN COULD BE ENFORCED AGAINST THE
BENEFICIARY OF THE POLICIES TO THE EXTENT OF THE CASH SURRENDER VALUE. 

EVEN UNDER BESS AN ARGUMENT COULD BE MADE FOR PERMITTING A FEDERAL
LIEN IN THIS INSTANCE TO ATTACH IN NEW YORK.  NEW YORK LAW, WHICH
TREATS BRANCH BANKS AS SEPARATE ENTITIES AND MAKES OMAR'S ACCOUNT
PAYABLE IN THE FIRST INSTANCE ONLY IN MONTEVIDEO, WAS DEVELOPED
PRIMARILY TO MEET THE PROBLEMS CREATED BY ORDINARY GARNISHING
CREDITORS, AND ARGUABLY HAS NO APPLICATION TO A CLAIM BY THE UNITED
STATES.  BUT THE COURT, IN AQUILINO V. UNITED STATES, 363 U.S. 509,
CHOSE TO ACCEPT STATE PROPERTY LAW JUST AS IT FOUND IT, AND NOT TO
EVALUATE ITS UNDERLYING RATIONALE IN LIGHT OF THE NEEDS OF FEDERAL
REVENUE COLLECTION.  THERE THE GOVERNMENT SUED A GENERAL CONTRACTOR WHO
HAD DEFAULTED BOTH ON THE PAYMENT OF FEDERAL TAXES AND ON THE PAYMENT
OF AMOUNTS DUE TO SUBCONTRACTORS WITH MECHANICS' LIENS.  MONEY PAYABLE
BY THE PROPERTY OWNER TO THE GENERAL CONTRACTOR WAS THE SUBJECT OF THE
SUIT.  THE SUBCONTRACTORS CONTENDED THAT UNDER NEW YORK LIEN LAW THE
GENERAL CONTRACTOR HAD "MERE TITLE" TO THE CONTESTED FUND, HOLDING IT
IN TRUST FOR THE SUBCONTRACTORS; THUS, IT WAS ARGUED, HE HIMSELF HAD NO
RIGHT TO THE PROPERTY WITHIN THE MEANING OF THE FEDERAL LIEN STATUTE. 
IN REMANDING THE CASE TO DETERMINE IF THE NEW YORK LAW WAS AS THE
SUBCONTRACTORS CONTENDED, THE COURT INDICATED IT WOULD ACCEPT THIS
ARGUMENT DESPITE THE FACT THAT THE ONLY PRACTICAL EFFECT THAT NEW
YORK'S DEFINITION OF THE GENERAL CONTRACTOR'S PROPERTY RIGHTS COULD
HAVE WOULD BE TO CONTROL WHICH CREDITORS PREVAILED AGAINST THE
PROPERTY.  (SEE MY DISSENTING OPINION, 363 U.S., AT 516.)  THE COURT
SAID: 

"THE APPLICATION OF STATE LAW IN ASCERTAINING THE TAXPAYER'S PROPERTY
RIGHTS AND OF FEDERAL LAW IN RECONCILING THE CLAIMS OF COMPETING
LIENORS IS BASED BOTH UPON LOGIC AND SOUND LEGAL PRINCIPLES.  THIS
APPROACH STRIKES A PROPER BALANCE BETWEEN THE LEGITIMATE AND
TRADITIONAL INTEREST WHICH THE STATE HAS IN CREATING AND DEFINING THE
PROPERTY INTEREST OF ITS CITIZENS, AND THE NECESSITY FOR A UNIFORM
ADMINISTRATION OF THE FEDERAL REVENUE STATUTES."  363 U.S., AT 514. 

THE STATE OF NEW YORK HAS DETERMINED THAT BRANCH BANKS SHOULD BE
TREATED AS SEPARATE ENTITIES, PRIMARILY IN ORDER TO AVOID THE CRIPPLING
EFFECTS WHICH COULD RESULT FROM REQUIRING EACH BRANCH TO BE AWARE OF
AND LIABLE TO MAKE PAYMENTS TO DEPOSITORS AND GARNISHING CREDITORS ON
ACCOUNTS MAINTAINED IN OTHER BRANCHES.  (FN29)  IF NEW YORK, BASED UPON
THIS POLICY, HAS DETERMINED THAT OMAR HAS NO IMMEDIATE RIGHT TO PAYMENT
IN NEW YORK, FEDERAL LIEN LAW, UNDER BESS AND AQUILINO, CANNOT CREATE
ONE.  THE RULE OF THOSE CASES WOULD NOT, I THINK, GO SO FAR AS TO ALLOW
AN INCIDENTAL CONTRACT PROVISION ADOPTED BY TWO CONTRACTING PARTIES
SIMPLY FOR THEIR OWN CONVENIENCE TO THWART THE OPERATION OF FEDERAL
LIEN LAW - FOR INSTANCE, AN AGREEMENT THAT THE PARTIES WOULD MEET AT A
CERTAIN PLACE TO CONSUMMATE THEIR TRANSACTION - BUT IN THE PRESENT CASE
THE POLICY DETERMINATION HAS BEEN MADE BY THE STATE, NOT BY PRIVATE
PARTIES, AND CANNOT BE TREATED AS INCIDENTAL.  THE ONLY RIGHT TO
PROPERTY WHICH NEW YORK RECOGNIZES IN OMAR IS THE CONDITIONAL RIGHT TO
PAYMENT PREDICATED ON A WRONGFUL REFUSAL IN MONTEVIDEO.  THE GOVERNMENT
CAN, OF COURSE, LEVY ON THAT CONDITIONAL RIGHT, BUT THE SATISFACTION IT
WILL DERIVE FROM DOING SO IS OBVIOUSLY LIMITED. 

THE GOVERNMENT SEEKS TO ANALOGIZE VARIOUS INSURANCE COMPANY CASES IN
WHICH LIENS ARE PERMITTED TO ATTACH TO THE CASH SURRENDER VALUE OF
POLICIES DESPITE A CONTRACT CONDITION THAT THE POLICYHOLDER MUST
SURRENDER HIS POLICY IN ORDER TO COLLECT.  (FN30)  IT IS CONTENDED THAT
JUST AS FEDERAL COURTS CAN OVERRIDE THE REQUIREMENT OF POLICY
SURRENDER, THEY CAN OVERRIDE THE REQUIREMENT OF DEMAND AND WRONGFUL
REFUSAL IN MONTEVIDEO.  THE INSURANCE CASES, HOWEVER, ARE READILY
DISTINGUISHABLE.  THE POLICY SURRENDER REQUIREMENT IS OF THE ORDER OF
AN INCIDENTAL RULE OF CONTRACT BETWEEN TWO PRIVATE CONTRACTING PARTIES;
INDEED, IT HAS BEEN CHARACTERIZED AS A HOUSEKEEPING DETAIL.  (FN31)
AND IF THE PURPOSE OF REQUIRING SURRENDER OF AN INSURANCE POLICY IS TO
PROTECT THE COMPANY AGAINST SUIT AT SOME LATER TIME, A COURT DECREE
WOULD FULLY SATISFY IT.  THE DISTRICT COURT GUARANTEED AND COULD
GUARANTEE CITIBANK NO SUCH PROTECTION FROM SUIT BY OMAR. 

IN CONCLUSION ON THE QUASI IN REM BRANCH OF THIS CASE, IT SHOULD BE
REMEMBERED THAT IT IS A STATUTE WHICH WE ARE INTERPRETING.  (FN32)
DEFENDANTS," PROVIDES FOR QUASI IN REM JURISDICTION IN FEDERAL DISTRICT
COURTS OVER PROPERTY "WITHIN THE DISTRICT."  COURTS OF OTHER COUNTRIES
WOULD RECOGNIZE THAT THE SITUS OF THE OMAR ACCOUNT WAS IN MONTEVIDEO. 
(FN33)  COURTS OF NEW YORK STATE WOULD SO HOLD, (FN34) AND WHERE, AS
HERE, THE COMMON UNDERSTANDING WOULD BE THAT THE SITUS OF AN ACCOUNT
PAYABLE TO A URUGUAYAN CORPORATION IN MONTEVIDEO IS IN MONTEVIDEO, WE
SHOULD NOT INDULGE A WHOLLY NOVEL INTERPRETATION OF THE GOVERNING
STATUTE. 

CONCLUSION. 

THE ONLY CASE CITED BY THE COURT RELATING TO INJUNCTIONS INVOLVING
PROPERTY OUTSIDE THE UNITED STATES IS NEW JERSEY V. NEW YORK CITY, 283
U.S. 473, IN WHICH THIS COURT ENJOINED NEW YORK CITY FROM DUMPING ITS
GARBAGE IN THE SEA OFF THE COAST OF NEW JERSEY.  (FN35)  IN THE FACE OF
THIS SLENDER REED STANDS DE BEERS, BASICALLY INDISTINGUISHABLE FROM THE
CASE AT BAR, PLUS THE POWERFUL EQUITABLE CONSIDERATIONS ENUMERATED
ABOVE.  THE CLEAR PREPONDERANCE OF THE COMPETING CONSIDERATIONS LEADS
TO THE CONCLUSION THAT THE ISSUANCE OF THIS FREEZE ORDER WAS NOT
"APPROPRIATE FOR THE ENFORCEMENT OF THE INTERNAL REVENUE LAWS" (SEC.
7402(A), N. 3, SUPRA), AND THEREFORE THAT THE DISTRICT COURT, EVEN
THOUGH IT POSSESSED THE NAKED POWER TO ACT AS IT DID, HAD NO
"JURISDICTION" (IBID.) TO ISSUE THE CHALLENGED ORDER.  THE SAME RESULT
FOLLOWS EVEN IF NAKED POWER BE CONSIDERED AS SYNONYMOUS WITH
JURISDICTION (A PROPOSITION WHICH FOR ME IS WHOLLY UNACCEPTABLE) FOR IN
THAT EVENT THE ACTION OF THE DISTRICT COURT MUST BE REGARDED AS
ENTAILING AN ABUSE OF DISCRETION OF SUCH MAGNITUDE AND MISCHIEVOUS
RADIATIONS IN OUR GENERAL JURISPRUDENCE AS TO MAKE THE ORDER A PROPER
SUBJECT OF REVIEW BY THIS COURT UNDER ITS SUPERVISORY POWERS.  (FN36) 

WHILE I HAVE THE UTMOST SYMPATHY WITH THE GOVERNMENT'S EFFORTS TO
PROTECT THE REVENUE, I DO NOT THINK THE COURSE IT HAS TAKEN HERE CAN BE
SUSTAINED WITHOUT EXTENDING FEDERAL COURT JURISDICTION BEYOND
PERMISSIBLE LIMITS. 

I VOTE TO AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  AFFIDAVIT OF WILLIAM R. T. GOTTLIEB, ONE OF THE INVESTIGATING
AGENTS. 

FN2  CF. PENN V. LORD BALTIMORE, 1 VES.  SEN.  444, 454 (CH. 1750)
(1ST AM. ED. 1831); DESCHENES V. TALLMAN, 248 N.Y. 33, 161 N.E. 321. 

FN3  INTERNAL REVENUE CODE OF 1954, SEC. 7402(A), PROVIDES: 

"TO ISSUE ORDERS, PROCESSES, AND JUDGMENTS.  - THE DISTRICT COURTS OF
THE UNITED STATES AT THE INSTANCE OF THE UNITED STATES SHALL HAVE SUCH
JURISDICTION TO MAKE AND ISSUE IN CIVIL ACTIONS, WRITS AND ORDERS OF
INJUNCTION, AND OF NE EXEAT REPUBLICA, ORDERS APPOINTING RECEIVERS, AND
SUCH OTHER ORDERS AND PROCESSES, AND TO RENDER SUCH JUDGMENTS AND
DECREES AS MAY BE NECESSARY OR APPROPRIATE FOR THE ENFORCEMENT OF THE
INTERNAL REVENUE LAWS.  THE REMEDIES HEREBY PROVIDED ARE IN ADDITION TO
AND NOT EXCLUSIVE OF ANY AND ALL OTHER REMEDIES OF THE UNITED STATES IN
SUCH COURTS OR OTHERWISE TO ENFORCE SUCH LAWS." 

FN4  COMPARE DE BEERS CONSOL.  MINES, LTD. V. UNITED STATES, 325 U.S.
212; APPALACHIAN COALS, INC. V. UNITED STATES, 288 U.S. 344, 377. 

FN5  COMPARE BANCO NACIONAL DE CUBA V. SABBATINO, 376 U.S. 398. 

FN6  HALL SIGNAL CO. V. GENERAL R. SIGNAL CO., 153 F. 907; A. H. BULL
STEAMSHIP CO. V. NATIONAL MARINE ENGINEERS' BENEFICIAL ASSN., 250 F.2D
332, 337. 

FN7  IT BECAME EFFECTIVE ON SEPTEMBER 1, 1963.  THE FREEZE ORDER WAS
ISSUED ON OCTOBER 31, 1962.  SECTION 302 PROVIDES: 

"(A)  ACTS WHICH ARE THE BASIS OF JURISDICTION.  A COURT MAY EXERCISE
PERSONAL JURISDICTION OVER ANY NON-DOMICILIARY, OR HIS EXECUTOR OR
ADMINISTRATOR, AS TO A CAUSE OF ACTION ARISING FROM ANY OF THE ACTS
ENUMERATED IN THIS SECTION, IN THE SAME MANNER AS IF HE WERE A
DOMICILIARY OF THE STATE, IF, IN PERSON OR THROUGH AN AGENT, HE: 

"1.  TRANSACTS ANY BUSINESS WITHIN THE STATE; OR: 

"2.  COMMITS A TORTIOUS ACT WITHIN THE STATE, EXCEPT AS TO A CAUSE OF
ACTION FOR DEFAMATION OF CHARACTER ARISING FROM THE ACT; OR: 

"3.  OWNS, USES OR POSSESSES ANY REAL PROPERTY SITUATED WITHIN THE
STATE. 

"(B)  EFFECT OF APPEARANCE.  WHERE PERSONAL JURISDICTION IS BASED
SOLELY UPON THIS SECTION, AN APPEARANCE DOES NOT CONFER SUCH
JURISDICTION WITH RESPECT TO CAUSES OF ACTION NOT ARISING FROM AN ACT
ENUMERATED IN THIS SECTION." 

FN8  THE LAME SUGGESTION IS MADE BY THE GOVERNMENT THAT OMAR WOULD
VOLUNTARILY MAKE A GENERAL APPEARANCE TO DEFEND THE SUIT.  IN LIGHT OF
THE FACT THAT OMAR HAD QUITE EVIDENTLY PURPOSEFULLY WITHDRAWN MOST OF
ITS PROPERTY FROM THE JURISDICTION, INCLUDING THE PROPERTY HERE IN
QUESTION, AN APPEARANCE VOLUNTARILY PUTTING THIS VERY PROPERTY IN
JEOPARDY WOULD HAVE BEEN MOST SURPRISING.  THE GOVERNMENT MAKES THE
FURTHER ARGUMENT THAT OMAR MIGHT HAVE ATTEMPTED TO MAKE A LIMITED
APPEARANCE TO CONTEST THE TITLE TO SOME OTHER PROPERTY OVER WHICH THE
DISTRICT COURT HAD CLEAR QUASI IN REM JURISDICTION (AN ACCOUNT WITH
LEHMAN BROS. IN NEW YORK HAS BEEN ATTACHED; AND SINCE THE LIMITED
APPEARANCE MIGHT NOT BE RECOGNIZED, BUT INSTEAD TREATED AS A GENERAL
APPEARANCE, PERSONAL JURISDICTION WOULD BE OBTAINED.  (THERE IS A SPLIT
OF AUTHORITY AS TO WHETHER LIMITED APPEARANCES ARE PERMITTED.  SEE
UNITED STATES V. BALANOVSKI, 236 F.2D 298 (C.A.2D CIR.), CERT. DENIED,
352 U.S. 968, AND CASES CITED THEREIN.  SEE ALSO DEVELOPMENTS IN THE
LAW:  STATE-COURT JURISDICTION, 73 HARV. L. REV. 909, 953 (1960).) 
WHETHER OR NOT A RULE AGAINST LIMITED APPEARANCES SHOULD PREVAIL IN OUR
FEDERAL COURTS, IT IS CLEAR THAT NO ARGUMENT FOR HAVING SUCH A RULE
COULD EXTEND SO FAR AS TO AUTHORIZE A COURT, BY REASON OF ITS HAVING
QUASI IN REM JURISDICTION OVER ONE PIECE OF PROPERTY, TO USE WHATEVER
NAKED POWER IS AT ITS COMMAND TO FREEZE ALL PROPERTY WHEREVER LOCATED,
WHICH COULD CONCEIVABLY BE AFFECTED BY A PERSONAL JUDGMENT. 

FN9  SIMONSON INVOLVED A SUIT BROUGHT IN 1960 IN NEW YORK AGAINST AN
ARIZONA BANK.  THE TRIAL COURT HELD THAT THERE WAS NO PERSONAL
JURISDICTION OVER THE DEFENDANT UNDER EXISTING STATUTES.  BY THE TIME
THE PLAINTIFF'S APPEAL ON THIS ISSUE REACHED THE COURT OF APPEALS, SEC.
302 HAD BECOME EFFECTIVE AND APPELLANT TRIED TO RELY ON IT.  THE COURT
HELD THAT SEC. 302 DID NOT RETROACTIVELY APPLY TO VALIDATE THE SERVICE
THAT HAD BEEN MADE UPON THE ARIZONA BANK, AND AFFIRMED THE DISMISSAL OF
THE COMPLAINT. 

FN10  SEE SIMONSON V. INTERNATIONAL BANK, 14 N.Y.2D 281, 288, 200
N.E.2D 427, 431; PURDY CO. V. ARGENTINA, 333 F.2D 95, CERT. DENIED, 379
U.S. 962 (DECIDED UNDER THE ILLINOIS STATUTE ON WHICH SEC. 302 WAS
PATTERNED).  COMPARE GROBARK V. ADDO MACHINE CO., 16 ILL.  2D 426, 158
N.E.2D 73; INSULL V. NEW YORK WORLD-TELEGRAM CORP., 273 F.2D 166;
NATIONAL GAS APPLICANCE CORP. V. AB ELECTROLUX, 270 F.2D 472. 

FN11  FOREIGN EXCHANGE RATES, N.Y. TIMES, OCT. 31, 1962, P. 47, COL.
5; N.Y. TIMES, JAN. 11, 1965, P. 37, COL. 4. 

FN12  THE COURT'S VERY ASSERTION THAT THE GOVERNMENT CHANGED ITS
THEORY IS BELIED BY THE STATEMENT, PROMINENTLY FEATURED IN THE PETITION
FOR REHEARING, THAT "THE GOVERNMENT CONTENDED IN THE BRIEF HERETOFORE
FILED IN THIS COURT THAT THERE IS EVERY LIKELIHOOD THAT PERSONAL
JURISDICTION OVER OMAR CAN BE EFFECTUATED  ...  ."  OF COURSE, THE
GOVERNMENT ARGUED ALTERNATIVE THEORIES BELOW JUST AS IT HAS DONE HERE. 
THE STATEMENTS QUOTED BY THE COURT (GLEANED FROM A FOOTNOTE) INDICATE
ONLY THAT THE GOVERNMENT (RIGHTLY, I THINK) REGARDED THE PERSONAL
JURISDICTION ARGUMENT AS ITS WEAKER POINT. 

FN13  THE GOVERNMENT'S DELAY IN OBTAINING PERSONAL JURISDICTION IS
PARTICULARLY SIGNIFICANT BECAUSE OF THE UNKNOWNS AND IMPONDERABLES WITH
WHICH THE CASE IN ITS PRESENT POSTURE IS SATURATED.  THUS, WE HAVE NO
FIRM INDICATION OF WHAT URUGUAYAN LAW IS WITH RESPECT TO ANY ASPECT OF
THIS ACTION, NO INDICATION OF THE EFFECT FREEZE ORDERS WOULD HAVE ON
THIS COUNTRY'S BANKING INTERESTS, AND OMAR, THE FOREIGN TAXPAYER WHOSE
INTERESTS ARE MOST AT STAKE, IS NOT BEFORE THE COURT.  CAN IT BE
DOUBTED THAT A DECISION UPON THE PROPRIETY OF THE NOVEL USE OF JUDICIAL
POWER HERE INVOLVED COULD BE MUCH BETTER MADE IF THE ISSUE WERE
PRESENTED IN A CONTEXT WITH SOME OF THE UNKNOWNS REMOVED?  HAD THE
GOVERNMENT NOT DELAYED BUT, INSTEAD, PROCEEDED (IF POSSIBLE) TO ACQUIRE
PERSONAL JURISDICTION OVER OMAR, AND THEN JUDGMENT AND EXECUTION (IF
POSSIBLE) AGAINST THE MONTEVIDEO ACCOUNT, THE CASE COULD COME BEFORE US
WITH MOST OF THIS OPAQUENESS REMOVED.  OMAR COULD HAVE PRESENTED THE
ISSUE OF THE VALIDITY OF THE FREEZE ORDER AS A DEFENSE TO AN ULTIMATE
LEVY UPON THE ACCOUNT; THE ISSUE WOULD NOT BE MOOT AT THAT STAGE
BECAUSE THERE WOULD HAVE BEEN NO EARLIER TIME AT WHICH OMAR COULD HAVE
ATTACKED THE ORDER WITHOUT RUNNING THE RISK OF BEING SUBJECTED TO THE
PERSONAL JURISDICTION OF THE COURT, AND, AS A MATTER OF SOUND JUDICIAL
PRINCIPLE, THE GOVERNMENT SHOULD NOT BE PERMITTED TO LEVY SUCCESSFULLY
UPON THE ACCOUNT WHEN ITS ABILITY TO DO SO STEMS FROM AN IMPROPER
FREEZE ORDER. 

FN14  SECTION 313 OF NEW YORK CIVIL PRACTICE LAW AND RULES PROVIDES: 

"A PERSON DOMICILED IN THE STATE OR SUBJECT TO THE JURISDICTION OF
THE COURTS OF THE STATE UNDER SECTION 301 OR 302, OR HIS EXECUTOR OR
ADMINISTRATOR, MAY BE SERVED WITH THE SUMMONS WITHOUT THE STATE, IN THE
SAME MANNER AS SERVICE IS MADE WITHIN THE STATE, BY ANY PERSON
AUTHORIZED TO MAKE SERVICE WITHIN THE STATE WHO IS A RESIDENT OF THE
STATE OR BY ANY PERSON AUTHORIZED TO MAKE SERVICE BY THE LAWS OF THE
STATE, TERRITORY, POSSESSION OR COUNTRY IN WHICH SERVICE IS MADE OR BY
ANY DULY QUALIFIED ATTORNEY, SOLICITOR, BARRISTER, OR EQUIVALENT IN
SUCH JURISDICTION." 

FN15 RULE 70 PROVIDES IN RELEVANT PART: 

"IF A JUDGMENT DIRECTS A PARTY TO EXECUTE A CONVEYANCE OF LAND OR TO
DELIVER DEEDS OR OTHER DOCUMENTS OR TO PERFORM ANY OTHER SPECIFIC ACT
AND THE PARTY FAILS TO COMPLY WITHIN THE TIME SPECIFIED, THE COURT MAY
DIRECT THE ACT TO BE DONE AT THE COST OF THE DISOBEDIENT PARTY BY SOME
OTHER PERSON APPOINTED BY THE COURT AND THE ACT WHEN SO DONE HAS LIKE
EFFECT AS IF DONE BY THE PARTY."    FN16  UNITED STATES V. HARDEN,
(1963) CAN.  SUP.  CT. 366, 41 D.L.R.2D 721; GOVERNMENT OF INDIA V.
TAYLOR, (1955) A.C. 491 (H.L.); PETER BUCHANAN LTD. & MACHARG V. MCVEY,
(1955) A.C. 516 (EIRE SUP. CT.).  FOR ENFORCEMENT OF TAX CLAIMS BETWEEN
STATES SEE MOORE V. MITCHELL, 30 F.2D 600, AFF'D ON OTHER GROUNDS, 281
U.S. 18; COLORADO V. HARBECK, 232 N.Y. 71, 133 N.E. 357.  CONTRA:
OKLAHOMA V. RODGERS, 238 MO. APP. 1115, 103 S.W.2D 919.  TAX TREATIES
MAY BE USED TO CHANGE THE GENERAL INTERNATIONAL UNDERSTANDING.  SEE
OWENS, UNITED STATES INCOME TAX TREATIES:  THEIR ROLE IN RELIEVING
DOUBLE TAXATION, 17 RUTGERS L. REV. 428, 449-451 (1963).  WE HAVE NO
TAX TREATY WITH URUGUAY, TREATIES IN FORCE, 205 (DEPT. OF STATE 1964). 
FN17  NATIONS, GENERALLY CHARY OF HAVING FOREIGN OFFICIALS ENTER
THEIR BORDERS EVEN FOR PURPOSES OF SERVING PROCESS, ARE EVEN MORE
UNLIKELY TO LOOK WITH FAVOR UPON A FOREIGN OFFICIAL ENTERING IN AN
ATTEMPT TO ENFORCE A TAX JUDGMENT.  SEE SMIT, INTERNATIONAL ASPECTS OF
FEDERAL CIVIL PROCEDURE, 61 COL. L. REV. 1031, 1040 (1961); HARVARD
RESEARCH IN INTERNATIONAL LAW, DRAFT CONVENTION ON JUDICIAL ASSISTANCE,
33 AM. J. INT'L L., SPEC. SUPP. II, 43-65 (1939); JONES, INTERNATIONAL
JUDICIAL ASSISTANCE:  PROCEDURAL CHAOS AND A PROGRAM FOR REFORM, 62
YALE L.J. 515, 534-537 (1953); LONGLEY, SERVING PROCESS, SUBPOENAS AND
OTHER DOCUMENTS IN FOREIGN TERRITORY, A.B.A. SECTION OF INT'L AND COMP.
LAW 34 (1959). 

THE COURT DERIVES SUPPORT FOR SUCH A BIZARRE PROCEDURE FROM THE FACT
THAT "THE DISTRICT COURT REMAINS OPEN TO THE EXECUTIVE BRANCH" (ANTE,
PP. 384-385).  BUT CERTAINLY THE COURT CANNOT JUSTIFY A PROCEDURE AT
ODDS WITH PROPER INTERNATIONAL PRACTICE SIMPLY BECAUSE THE EXECUTIVE
HAS NOT EXPRESSED A CONTRARY WISH. 

I DOUBT VERY MUCH WHETHER BEFORE TODAY'S DECISION EVEN OUR OWN STATE
DEPARTMENT WOULD HAVE FOUND IT EASY TO LEND ITS AID, BY WAY OF ISSUING
A PASSPORT OR OTHERWISE, TO SUCH A NOVEL INTERNATIONAL ADVENTURE. 

FN18  THE COURT PLACES RELIANCE ON NEW JERSEY V. NEW YORK CITY, 283
U.S. 473, AN INAPPOSITE CASE IN WHICH THE COURT ENJOINED NEW YORK CITY
FROM TAKING ITS GARBAGE OUT TO SEA AND DUMPING IT OFF THE NEW JERSEY
COAST.  NO INTERNATIONAL PROBLEM WAS INVOLVED, NOR ANY QUESTION OF
PERSONAL JURISDICTION, ENFORCEMENT, OR RIGHTS OF THIRD PARTIES.  THE
GARBAGE LEFT OUR TERRITORIAL JURISDICTION ON A CIRCULAR ROUTE
CALCULATED TO RETURN IT IN AN OFFENSIVE MANNER.  THE COURT HAD CLEAR
JURISDICTION TO PREVENT IT FROM BEGINNING THAT JOURNEY. 

FN19  THIS LAST FEATURE WAS HEAVILY RELIED UPON IN UNITED STATES V.
MORRIS & ESSEX R. CO., 135 F.2D 711, A TAX CASE IN WHICH THE TAX-LIEN
STATUTE COULD HAVE BEEN USED DIRECTLY. 

PRIOR TO THE RECENT AMENDMENTS OF THE FEDERAL RULES OF CIVIL
PROCEDURE (SEE RULE 4(E)), A FEDERAL DISTRICT COURT COULD NOT OBTAIN
QUASI IN REM JURISDICTION OVER A DEBT OWED TO AN ABSENT DEFENDANT.  BIG
VEIN COAL CO. V. READ, 229 U.S. 31. 

FN20  THOSE POLICY CONSIDERATIONS WHICH ENTER INTO A JURISDICTIONAL
DETERMINATION ONCE IT IS DECIDED THAT NAKED POWER EXISTS ARE THOSE
WHICH WOULD APPLY IN THE GENERALITY OF CASES RAISING THE JURISDICTIONAL
QUESTION.  THOSE CONSIDERATIONS WHICH ARE PECULIAR TO THIS CASE RELATE
TO THE QUESTION WHETHER, IN THIS INSTANCE, JURISDICTION, ONCE
ESTABLISHED, SHOULD BE EXERCISED. 

FN21  THE REGULATION PROVIDES: 

26 CFR SEC. 301.6332-1 (AS AMENDED BY T.D. 6746, 29 FED. REG. 9792)
SURRENDER OF PROPERTY SUBJECT TO LEVY. 

"(A)  REQUIREMENT - (1) IN GENERAL.  ANY PERSON IN POSSESSION OF (OR
OBLIGATED WITH RESPECT TO) PROPERTY OR RIGHTS TO PROPERTY SUBJECT TO
LEVY UPON WHICH A LEVY HAS BEEN MADE SHALL, UPON DEMAND OF THE DISTRICT
DIRECTOR, SURRENDER SUCH PROPERTY OR RIGHTS (OR DISCHARGE SUCH
OBLIGATION) TO THE DISTRICT DIRECTOR, EXCEPT SUCH PART OF THE PROPERTY
OR RIGHT AS IS, AT THE TIME OF SUCH DEMAND, SUBJECT TO AN ATTACHMENT OR
EXECUTION UNDER ANY JUDICIAL PROCESS. 

"(2)  PROPERTY HELD BY BANKS.  NOTWITHSTANDING SUBPARAGRAPH (1) OF
THIS PARAGRAPH, IF A LEVY HAS BEEN MADE UPON PROPERTY OR RIGHTS TO
PROPERTY SUBJECT TO LEVY WHICH A BANK ENGAGED IN THE BANKING BUSINESS
IN THE UNITED STATES OR A POSSESSION OF THE UNITED STATES IS IN
POSSESSION OF (OR OBLIGATED WITH RESPECT TO), THE COMMISSIONER SHALL
NOT ENFORCE THE LEVY WITH RESPECT TO ANY DEPOSITS HELD IN AN OFFICE OF
THE BANK OUTSIDE THE UNITED STATES OR A POSSESSION OF THE UNITED
STATES, UNLESS THE NOTICE OF LEVY SPECIFIES THAT THE DISTRICT DIRECTOR
INTENDS TO REACH SUCH DEPOSITS.  THE NOTICE OF LEVY SHALL NOT SPECIFY
THAT THE DISTRICT DIRECTOR INTENDS TO REACH SUCH DEPOSITS UNLESS THE
DISTRICT DIRECTOR BELIEVES: 

"(I)  THAT THE TAXPAYER IS WITHIN THE JURISDICTION OF A UNITED STATES
COURT AT THE TIME THE LEVY IS MADE AND THAT THE BANK IS IN POSSESSION
OF (OR OBLIGATED WITH RESPECT TO) DEPOSITS OF THE TAXPAYER IN AN OFFICE
OF THE BANK OUTSIDE THE UNITED STATES OR A POSSESSION OF THE UNITED
STATES; OR: 

"(II)  THAT THE TAXPAYER IS NOT WITHIN THE JURISDICTION OF A UNITED
STATES COURT AT THE TIME THE LEVY IS MADE, THAT THE BANK IS IN
POSSESSION OF (OR OBLIGATED WITH RESPECT TO) DEPOSITS OF THE TAXPAYER
IN AN OFFICE OUTSIDE THE UNITED STATES OR A POSSESSION OF THE UNITED
STATES, AND THAT SUCH DEPOSITS CONSIST, IN WHOLE OR IN PART, OF FUNDS
TRANSFERRED FROM THE UNITED STATES OR A POSSESSION OF THE UNITED STATES
IN ORDER TO HINDER OR DELAY THE COLLECTION OF A TAX IMPOSED BY THE
CODE. 

"FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM 'POSSESSION OF THE
UNITED STATES' INCLUDES GUAM, THE MIDWAY ISLANDS, THE PANAMA CANAL
ZONE, THE COMMONWEALTH OF PUERTO RICO, AMERICAN SAMOA, THE VIRGIN
ISLANDS, AND WAKE ISLAND." 

FN22 CODIGO DE PROCEDIMIENTO CIVIL (COUTURE, 1952).  THERE HAVE BEEN
NO AMENDMENTS, INDEX TO LATIN AMERICAN LEGISLATION, LIBRARY OF
CONGRESS. 

FN23  SEE EHRENZWEIG, CONFLICT OF LAWS, SECS. 45, 46 (1962); HILTON
V. GUYOT, 159 U.S. 113. 

FN24  THE REGULATION MAKES NO DISTINCTION BETWEEN PARENT AND BRANCH
OFFICES. 

FN25  REESE, THE STATUS IN THIS COUNTRY OF JUDGMENTS RENDERED ABROAD,
50 COL. L. REV. 783 (1950). 

FN26  28 U.S.C. SEC. 1655 (1958 ED.)  PROVIDES: 

"SEC. 1655.  LIEN ENFORCEMENT; ABSENT DEFENDANTS. 

"IN AN ACTION IN A DISTRICT COURT TO ENFORCE ANY LIEN UPON OR CLAIM
TO, OR TO REMOVE ANY INCUMBRANCE OR LIEN OR CLOUD UPON THE TITLE TO,
REAL OR PERSONAL PROPERTY WITHIN THE DISTRICT, WHERE ANY DEFENDANT
CANNOT BE SERVED WITHIN THE STATE, OR DOES NOT VOLUNTARILY APPEAR, THE
COURT MAY ORDER THE ABSENT DEFENDANT TO APPEAR OR PLEAD BY A DAY
CERTAIN. 

"SUCH ORDER SHALL BE SERVED ON THE ABSENT DEFENDANT PERSONALLY IF
PRACTICABLE, WHEREVER FOUND, AND ALSO UPON THE PERSON OR PERSONS IN
POSSESSION OR CHARGE OF SUCH PROPERTY, IF ANY.  WHERE PERSONAL SERVICE
IS NOT PRACTICABLE, THE ORDER SHALL BE PUBLISHED AS THE COURT MAY
DIRECT, NOT LESS THAN ONCE A WEEK FOR SIX CONSECUTIVE WEEKS. 

"IF AN ABSENT DEFENDANT DOES NOT APPEAR OR PLEAD WITHIN THE TIME
ALLOWED, THE COURT MAY PROCEED AS IF THE ABSENT DEFENDANT HAD BEEN
SERVED WITH PROCESS WITHIN THE STATE, BUT ANY ADJUDICATION SHALL, AS
REGARDS THE ABSENT DEFENDANT WITHOUT APPEARANCE, AFFECT ONLY THE
PROPERTY WHICH IS THE SUBJECT OF THE ACTION.  WHEN A PART OF THE
PROPERTY IS WITHIN ANOTHER DISTRICT, BUT WITHIN THE SAME STATE, SUCH
ACTION MAY BE BROUGHT IN EITHER DISTRICT. 

"ANY DEFENDANT NOT SO PERSONALLY NOTIFIED MAY, AT ANY TIME WITHIN ONE
YEAR AFTER FINAL JUDGMENT, ENTER HIS APPEARANCE, AND THEREUPON THE
COURT SHALL SET ASIDE THE JUDGMENT AND PERMIT SUCH DEFENDANT TO PLEAD
ON PAYMENT OF SUCH COSTS AS THE COURT DEEMS JUST." 

FN27  SEE BLUEBIRD UNDERGARMENT CORP. V. GOMEZ, 139 MISC. 742, 249
N.Y.S. 319; CRONAN V. SCHILLING, 100 N.Y.S.2D 474, AFF'D 282 APP. DIV.
940, 126 N.Y.S.2D 192; NEWTOWN JACKSON CO. V. ANIMASHAUN, 148 N.Y.S.2D
66; MCCLOSKEY V. CHASE MANHATTAN BANK, 11 N.Y.2D 936, 183 N.E.2D 227;
ZIMMERMAN V. HICKS, 7 F.2D 443, AFF'D SUB NOM., ZIMMERMANN V.
SUTHERLAND, 274 U.S. 253.  AND SEE RICHARDSON V. RICHARDSON (1927)
PROB.  228, 137 L.T.R. (N.S.)  492; COMMENT, 56 MICH. L. REV. 90
(1957); NOTE, 48 CORNELL L.Q. 333 (1963). 

THE BANK ACCOUNT IS A CONTRACT FOR PAYMENT ON DEMAND AT THE
MONTEVIDEO BRANCH.  IF DEMAND WERE WRONGFULLY REFUSED, A CAUSE OF
ACTION FOR BREACH OF CONTRACT WOULD BE CREATED ON WHICH OMAR COULD SUE
IN NEW YORK.  THUS, ANALYTICALLY, IT IS NOT THE ACCOUNT ITSELF WHICH
WOULD BECOME PAYABLE IN NEW YORK, BUT DAMAGES FOR BREACH OF THE
CONTRACT TO PAY ON DEMAND IN MONTEVIDEO. 

FN28  SECTION 3670 IS NOW INTERNAL REVENUE CODE OF 1954, SEC. 6321. 
IT PROVIDES: 

"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT (INCLUDING ANY INTEREST, ADDITIONAL
AMOUNT, ADDITION TO TAX, OR ASSESSABLE PENALTY, 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." 

FN29  SEE COMMENT, 56 MICH. L. REV. 90 (1957). 

FN30  E.G., EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES V.
UNITED STATES, 331 F.2D 29; UNITED STATES V. METROPOLITAN LIFE INS.
CO., 256 F.2D 17; BUT SEE UNITED STATES V. METROPOLITAN LIFE INS. CO.,
130 F.2D 149. 

FN31  EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES V. UNITED
STATES, 331 F.2D 29, 33. 

FN32  CRANE V. COMMISSIONER, 331 U.S. 1.  SEE ALSO AMERICAN BANANA
CO. V. UNITED FRUIT CO., 213 U.S. 347, AT 356-357. 

FN33  RICHARDSON V. RICHARDSON, (1927) PROB.  228, 137 L.T.R. (N.S.) 
492. 

FN34  IF THE LAW OF URUGUAY WERE KNOWN, NEW YORK MIGHT LOOK TO IT AS
A MATTER OF CONFLICTS LAW. 

I WOULD NOT DECIDE AT THIS JUNCTURE WHETHER FEDERAL COURTS IN ALL
SITUATIONS WOULD BE REQUIRED TO ENFORCE LIENS AGAINST PROPERTY WHICH
THE STATE WOULD HOLD TO BE WITHIN ITS JURISDICTION. 

FN35  SEE N. 18, SUPRA. 

FN36  UNDER THE COURT'S OPINION THERE APPEARS, EVEN NOW, TO BE NO
LIMIT ON THE FURTHER LENGTH OF TIME IN WHICH THE GOVERNMENT CAN DELAY
BEFORE ACQUIRING PERSONAL JURISDICTION OVER OMAR. 
..END :







WHITNEY NATIONAL BANK IN JEFFERSON PARISH V. BANK OF NEW ORLEANS & TRUST
CO. 379 U.S. 411 


NO. 26.  ARGUED NOVEMBER 12, 1964 - DECIDED JANUARY 18, 1965* - 116 U.S.
APP. D.C. 285, 323 F.2D 290, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 30, SAXON, COMPTROLLER OF THE CURRENCY V. BANK OF
NEW ORLEANS & TRUST CO. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


A NEW ORLEANS-BASED NATIONAL BANK, DESIRING TO EXPAND BUT PROHIBITED
FROM OPERATING BRANCHES BEYOND ITS HOME PARISH, FORMED A HOLDING
COMPANY WHICH IN TURN ORGANIZED A NEW NATIONAL BANK TO OPERATE IN AN
ADJOINING PARISH.  PURSUANT TO THE BANK HOLDING COMPANY ACT OF 1956,
THE FEDERAL RESERVE BOARD (FRB), AFTER RECEIVING FAVORABLE ADVICE FROM
THE COMPTROLLER OF THE CURRENCY (COMPTROLLER), HELD HEARINGS ON THE
APPLICATION BY THE HOLDING COMPANY.  THE FRB APPROVED THE PLAN ON MAY
3, 1962.  THE SOLE REMAINING ACTION NEEDED TO ENABLE THE NEW BANK TO
OPERATE WAS A CERTIFICATE OF AUTHORITY FROM THE COMPTROLLER ACTING
UNDER THE NATIONAL BANK ACT.  ON JUNE 9, 1962, THREE STATE BANKS
BROUGHT THIS ACTION IN FEDERAL DISTRICT COURT TO RESTRAIN THE
COMPTROLLER FROM ISSUING THE CERTIFICATE.  ON JUNE 13, 1962, TWO
RESPONDENT BANKS FILED A PETITION WITH THE FRB FOR RECONSIDERATION,
WHICH WAS DENIED AS UNTIMELY AND WITHOUT SUBSTANTIAL MERIT. 
THEREAFTER, ON JUNE 30, 1962, THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT WAS ASKED TO REVIEW THE FRB ACTION UNDER THE BANK HOLDING
COMPANY ACT OF 1956, WHICH SUIT IS STILL PENDING.  ON JULY 10, 1962, A
LOUISIANA LAW WAS PASSED MAKING IT UNLAWFUL FOR ANY BANK OWNED OR
CONTROLLED BY A BANK HOLDING COMPANY TO OPEN, WHETHER OR NOT IT HAD A
CHARTER OR CERTIFICATE TO ENGAGE IN BANKING.  THE DISTRICT COURT IN
THIS SUIT HELD THAT THE BANK HOLDING COMPANY ACT OF 1956 RESERVED TO
THE STATES FINAL AUTHORITY TO BAR SUBSIDIARIES OF BANK HOLDING
COMPANIES AND THAT THE LOUISIANA STATUTE PREVENTED THE COMPTROLLER FROM
ISSUING THE CERTIFICATE.  ACCORDINGLY, IT ISSUED A PERMANENT INJUNCTION
AGAINST THE COMPTROLLER.  ON APPEAL THE COURT OF APPEALS HELD THAT THE
NEW BANK WOULD BE BUT A BRANCH OF THE OLD ONE, WHICH WAS PROHIBITED BY
THE BANKING ACT OF 1933, AND THEREFORE FOUND IT UNNECESSARY TO RULE ON
THE EFFECT OF THE NEW LOUISIANA LAW.  HELD:  SINCE THE ISSUES HERE
CONCERN ESSENTIALLY THE ORGANIZATION AND RELATIONSHIP OF THE HOLDING
COMPANY AND THE NEW NATIONAL BANK, MATTERS WITHIN THE COGNIZANCE OF THE
FRB RATHER THAN THE COMPTROLLER, UPON WHOM THE FRB'S APPROVAL OF A
HOLDING COMPANY PLAN IS BINDING, THE STATUTORY SCHEME SET FORTH IN THE
BANK HOLDING COMPANY ACT OF 1956 - FRB DETERMINATION, SUBJECT TO REVIEW
BY A COURT OF APPEALS - SHOULD BE FOLLOWED.  THE FRB SHOULD HAVE AN
OPPORTUNITY TO CONSIDER THE EFFECT OF THE SUPERVENING LOUISIANA STATUTE
AND THE PARTIES ARE GIVEN 60 DAYS TO PROCEED BEFORE THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT TO SECURE A REMAND TO THE FRB.  THAT
COURT HAS AMPLE POWER TO PROTECT ITS JURISDICTION AND PREVENT THE
OPENING OF THE NEW BANK PENDING RESOLUTION OF THE ISSUES.  PP. 417
426. 

WHITNEY NATIONAL BANK IN JEFFERSON PARISH V. BANK OF NEW ORLEANS & TRUST
CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS SUIT IS A FACET OF THE COMPLICATED CONTROVERSY BETWEEN THE
WHITNEY NATIONAL BANK OF NEW ORLEANS (WHITNEY-NEW ORLEANS) AND THREE OF
ITS STATE-CHARTERED BANKING COMPETITIORS OVER THE ESTABLISHMENT BY
WHITNEY-NEW ORLEANS OF A NATIONAL BANK (WHITNEY-JEFFERSON) IN JEFFERSON
PARISH, LOUISIANA, WHICH ADJOINS THE PARISH OF ORLEANS.  IN ORDER TO
AVOID THE RESTRICTIONS OF THE NATIONAL BANKING LAWS AS TO BRANCH
BANKING (FN1) AND STILL TAP THE BANKING MARKET IN JEFFERSON PARISH,
WHITNEY-NEW ORLEANS RESORTED TO THE ORGANIZATION OF A BANK HOLDING
COMPANY.  AFTER APPROVAL OF THE PLAN BY THE FEDERAL RESERVE BOARD ON
MAY 3, 1962, TWO OF THE RESPONDENT BANKS FILED THIS DECLARATORY
JUDGMENT ACTION ON JUNE 9, 1962, SEEKING A DECLARATION JUDGMENT ACTION
ON JUNE 9, 1962, SEEKING A DECLARATION THAT THE COMPTROLLER OF THE
CURRENCY HAD NO POWER TO GRANT THE NECESSARY AUTHORITY AND PRAYING IN
ADDITION FOR INJUNCTIVE RELIEF RESTRAINING HIM FROM ISSUING A
CERTIFICATE OF AUTHORITY FOR THE NEW BANK. 

FOUR DAYS LATER TWO OF THE RESPONDENT BANKS PETITIONED THE BOARD FOR
RECONSIDERATION OF ITS APPROVAL OF THE WHITNEY APPLICATION.  THEIR
PETITION WAS DENIED, AND ON JUNE 30, 1962, THEY SOUGHT JUDICIAL REVIEW
OF THE FEDERAL RESERVE BOARD DECISION IN THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT.   (FN2)  THAT SUIT IS PRESENTLY PENDING THERE AWAITING
OUR DECISION HERE. 

MEANWHILE, IN THIS SUIT THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA ASSUMED JURISDICTION AND HELD ON THE MERITS THAT
SEC. 7 OF THE BANK HOLDING COMPANY ACT OF 1956 (FN3) RESERVED TO THE
STATES FINAL AUTHORITY TO PROHIBIT THE OPENING OF SUBSIDIARIES OF BANK
HOLDING COMPANIES WITHIN THEIR BORDERS AND THAT LOUISIANA HAD ADOPTED
SUCH A LAW (ALBEIT SUBSEQUENT TO THE APPROVAL OF THE PLAN INVOLVED HERE
BY THE FEDERAL RESERVE BOARD) (FN4) WHICH PREVENTED THE COMPTROLLER
FROM ISSUING THE CERTIFICATE.  A PERMANENT INJUNCTION WAS ISSUED
AGAINST THE COMPTROLLER RESTRAINING THE ISSUANCE OF THE AUTHORITY.  211
F. SUPP. 576.  ON APPEAL THE COURT OF APPEALS UPHELD THE JURISDICTION
OF THE DISTRICT COURT, REJECTING THE CONTENTION THAT THE COMPETITOR
BANKS LACKED STANDING TO SUE.  IT RELATED BANK CHARTERS TO SEMI
EXCLUSIVE FRANCHISES CONFERRING UPON THEIR HOLDERS A RIGHT TO BE FREE
FROM THE COMPETITION OF A BRANCH BANK THE OPERATION OF WHICH WAS
VIOLATIVE OF THE BANKING ACT OF 1933, 12 U.S.C. SEC. 36 (1958 ED.).  ON
THE MERITS IT CONCLUDED THAT THE PROPOSED JEFFERSON PARISH BANK WOULD
BE BUT A BRANCH OF WHITNEY-NEW ORLEANS WHICH WAS PROHIBITED BY THE
ACT.  IT THEREFORE FOUND IT UNNECESSARY TO PASS UPON THE EFFECT OF
LOUISIANA'S LAW PROHIBITING THE OPENING OR OPERATION OF SUBSIDIARIES BY
BANK HOLDING COMPANIES.  116 U.S. APP. D.C. 285, 323 F.2D 290.  IN VIEW
OF THE TANGLE IN WHICH THE PARTIES HAD THUS INVOLVED THEMSELVES AND THE
NATIONAL BANKING LAWS AS WELL, WE GRANTED CERTIORARI.  376 U.S. 948. 
WE HAVE CONCLUDED THAT THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HAD NO JURISDICTION TO PASS ON THE MERITS OF THE HOLDING COMPANY
PROPOSAL; THAT APPROPRIATE DISPOSTION OF THE CONTROVERSY CANNOT BE MADE
WITHOUT FURTHER CONSIDERATION OF THE CASE BY THE FEDERAL RESERVE BOARD,
WHERE ORIGINAL EXCLUSIVE JURISDICTION RESTS; AND THAT SINCE THE
APPLICATION FOR REVIEW OF ITS DECISION IS NOW PENDING IN THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT, REASONABLE TIME SHOULD BE ALLOWED FOR
THAT COURT TO ACT.  WE, THEREFORE, REVERSE THESE JUDGMENTS AND ORDER
DISMISSAL OF THE COMPLAINT.  BUT ISSUANCE OF OUR JUDGMENT IS STAYED FOR
A PERIOD OF 60 DAYS IN ORDER TO GIVE THE PARTIES TIME TO MOVE IN THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT FOR AN ORDER REMANDING THAT CASE
TO THE FEDERAL RESERVE BOARD; AND, IN THE EVENT OF SUCH A REMAND, TO
PERMIT THE COURT OF APPEALS TO ISSUE SUCH ORDERS AS WILL PROTECT ITS
JURISDICTION PENDING FINAL DETERMINATION OF THE MATTER. 

                                  I. 

THE FACTS ARE UNDISPUTED.  WHITNEY-NEW ORLEANS DESIRED TO EXTEND ITS
BANKING BUSINESS INTO THE EXPANDING URBAN AREAS BEYOND THE PARISH OF
ORLEANS, ITS HOME BASE.  IT COULD NOT OPEN BRANCHES BEYOND THE PARISH
LINE BECAUSE LOUISIANA LAW, LA. REV. STAT. SEC. 6:54 (1950), APPLICABLE
TO NATIONAL BANKS, PROHIBITED ITS OPERATING A BRANCH BANK OUTSIDE OF
ITS HOME PARISH.  AFTER DISCUSSIONS WITH THE DEPUTY COMPTROLLER OF THE
CURRENCY IT WAS DECIDED THAT THE BANK SHOULD ESTABLISH A HOLDING
COMPANY (WHITNEY HOLDING CORPORATION) UNDER FEDERAL LAW WITH A CAPITAL
OF $350,000 TAKEN FROM THE BANK'S UNDIVIDED PROFITS AND REPRESENTED BY
5,600 SHARES OF STOCK OF THE HOLDING COMPANY TO BE DISTRIBUTED TO THE
BANK'S SHAREHOLDERS.  THE HOLDING COMPANY WOULD THEN ORGANIZE A NEW
NATIONAL BANK, THE CRESCENT CITY NATIONAL BANK, WITH THE $350,000 IT
HAD ON HAND.  WHITNEY-NEW ORLEANS WOULD THEN BE MERGED INTO THE
CRESCENT CITY AND THE RESULTING BANK WOULD BE KNOWN AS WHITNEY-NEW
ORLEANS.  THE NEW WHITNEY-NEW ORLEANS BANK WOULD DECLARE A DIVIDEND OF
$650,000 FROM ITS UNDIVIDED PROFITS WHICH WOULD GO TO ITS OWNER, THE
HOLDING COMPANY.  THE LATTER WOULD THEN ORGANIZE, WITH THIS $650,000
ANOTHER NATIONAL BANK, WHITNEY-JEFFERSON, WHICH WOULD BE LOCATED IN
JEFFERSON PARISH.  THE NET RESULT OF THE MANEUVER WOULD BE THAT THE
ORIGINAL STOCKHOLDERS OF THE OLD WHITNEY-NEW ORLEANS WOULD OWN THE
HOLDING COMPANY WHICH IN TURN WOULD OWN AND OPERATE BOTH BANKS, I.E.,
THE NEW WHITNEY-NEW ORLEANS AND WHITNEY-JEFFERSON. 

APPROVAL OF THE STOCKHOLDERS OF WHITNEY-NEW ORLEANS WAS FIRST
OBTAINED, OVER 88% OF THE SHARES VOTING FOR THE PLAN.  IT WAS THEN
SUBMITTED TO THE COMPTROLLER WHO ON OCTOBER 3, 1961, GAVE PRELIMINARY
APPROVAL, SUBJECT TO THE ACTION OF THE FEDERAL RESERVE BOARD AND THE
CONSUMMATION OF THE VARIOUS TRANSACTIONS OUTLINED.  ON JULY 14, 1961,
APPLICATIONS WERE FILED WITH THE BOARD; THEREAFTER NOTICE WAS PUBLISHED
IN THE FEDERAL REGISTER AND THREE POTENTIAL COMPETITORS EXPRESSED
OPPOSITION.  HOWEVER, NONE OF THE RESPONDENTS APPEARED OR MADE ANY
FILINGS.  AFTER RECEIVING THE ADVICE OF THE COMPTROLLER PURSUANT TO
SEC. 3(B) OF THE BANK HOLDING COMPANY ACT OF 1956, 12 U.S.C. SEC.
1842(B) (1958 ED.), WHICH WAS FAVORABLE, THE BOARD ORDERED A PUBLIC
PROCEEDING TO BE HELD ON JANUARY 17, 1962, "TO AFFORD FURTHER
OPPORTUNITY FOR THE EXPRESSION OF VIEWS AND OPINIONS BY INTERESTED
PERSONS."  AT THIS HEARING TESTIMONY WAS HEARD AND OPPOSITION SUBMITTED
BY OBJECTING STOCKHOLDERS AND POTENTIAL COMPETITORS BUT NONE OF THE
RESPONDENTS TOOK ANY PART THEREIN.  THE BOARD BY A 6-1 VOTE APPROVED
THE PLAN ON MAY 3, 1962.  THIS SUIT WAS FILED ON JUNE 9, 1962. 
THEREAFTER ON JUNE 13, 1962, A PETITION FOR RECONSIDERATION WAS FILED
WITH THE FEDERAL RESERVE BOARD BY TWO OF THE RESPONDENT BANKS AND WAS
LATER JOINED BY THE BANK COMMISSIONER OF LOUISIANA.  THIS APPLICATION
WAS DENIED ON THE GROUND OF UNTIMELINESS AND BECAUSE THE BOARD FOUND IT
"WITHOUT SUBSTANTIAL MERIT."  THE APPLICATION FOR JUDICIAL REVIEW WAS
THEN FILED ON JUNE 30, 1962, WITH THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT PURSUANT TO SEC. 9 OF THE BANK HOLDING COMPANY ACT OF 1956, 12
U.S.C.  SEC. 1848 (1958 ED.).  THAT CASE, AS WE HAVE SAID, AWAITS OUR
DECISION HERE. 

                                          II. 

THE BANK HOLDING COMPANY ACT OF 1956 PROHIBITS A BANK HOLDING COMPANY
FROM ACQUIRING OWNERSHIP OR CONTROL OF A NATIONAL BANK, NEW OR
EXISTING, WITHOUT THE APPROVAL OF THE FEDERAL RESERVE BOARD.  12 U.S.C.
SEC. 1842(A) (1958 ED.).  PROVISION IS MADE FOR A FULL ADMINISTRATIVE
PROCEEDING BEFORE THE BOARD IN WHICH ALL INTERESTED PERSONS MAY
PARTICIPATE AND THE VIEWS OF THE INTERESTED SUPERVISORY AUTHORITIES MAY
BE OBTAINED.  12 U.S.C. SEC. 1842(B) (1958 ED.).  THE BOARD'S
DETERMINATION IS SUBJECT TO JUDICIAL REVIEW BY SPECIFIED COURTS OF
APPEALS WHICH MUST ACCEPT THE ADMINISTRATIVE FINDINGS IF THEY ARE
SUPPORTED BY SUBSTANTIAL EVIDENCE.  12 U.S.C. SEC. 1848 (1958 ED.). 

THUS, IF THE PLAN HERE MERELY ENCOMPASSED THE ACQUISITION OF AN
EXISTING NATIONAL BANK ALREADY ENJOYING THE COMPTROLLER'S CERTIFICATE
OF AUTHORITY TO DO BUSINESS, ONLY THE APPROVAL OF THE BOARD WOULD BE
NECESSARY, AND THE COMPTROLLER WOULD BE INVOLVED ONLY TO THE EXTENT
THAT HE PROVIDED HIS VIEWS AND RECOMMENDATIONS.  BUT, OF COURSE, THIS
IS NOT THE CASE.  HERE IT IS A NEWLY CREATED NATIONAL BANK NOT YET
AUTHORIZED TO DO BUSINESS THAT IS SOUGHT TO BE ORGANIZED AND OPERATED
BY A BANK HOLDING COMPANY.  THIS AUTHORIZATION IS THE SOLE FUNCTION OF
THE COMPTROLLER, REQUIRING HIS APPRAISAL OF THE BANK'S ASSETS,
DIRECTORATE, ETC., AND HIS ACTION IS THEREFORE NECESSARY IN ADDITION TO
THAT OF THE BOARD APPROVING THE ORGANIZATION OF THE BANK BY THE HOLDING
COMPANY.  IT IS AGAINST THIS BACKGROUND THAT WE INQUIRE WHETHER THE
QUESTIONS RAISED BY THE RESPONDENTS IN THE DISTRICT COURT AGAINST THE
COMPTROLLER WERE COGNIZABLE BY THE BOARD. 

              III. 

WE THINK IT CLEAR THAT THE THRUST OF RESPONDENTS' COMPLAINT GOES TO
THE ORGANIZATION OF WHITNEY-JEFFERSON BY THE HOLDING COMPANY RATHER
THAN MERELY THE ISSUANCE OF AUTHORITY TO WHITNEY-JEFFERSON TO DO
BUSINESS.  RESPONDENTS' CHIEF CONTENTION IS THAT WHITNEY-JEFFERSON
WOULD BE BUT A BRANCH BANK OF WHITNEY-NEW ORLEANS.  BUT THIS WOULD NOT
FOLLOW SIMPLY BY VIRTUE OF THE ISSUANCE OF AUTHORITY FOR THE OPENING OF
THE NEW BANK.  SUCH A SITUATION WOULD OCCUR, IF AT ALL, WHEN THE BOARD
APPROVED THE HOLDING COMPANY PLAN INCLUDING THE ORGANIZATION OF WHITNEY
JEFFERSON AS ITS SUBSIDIARY.  THUS, IT IS THE PLAN OF ORGANIZATION BY
THE HOLDING COMPANY WHICH LIES AT THE HEART OF RESPONDENTS' ARGUMENT. 

THE BANK HOLDING COMPANY ACT OF 1956 DIRECTS THE BOARD TO CONSIDER
BOTH "THE CONVENIENCE, NEEDS, AND WELFARE OF THE COMMUNITIES AND THE
AREA CONCERNED" AND "WHETHER OR NOT THE EFFECT OF SUCH ACQUISITION  ...
WOULD BE TO EXPAND THE SIZE OR EXTENT OF THE BANK HOLDING COMPANY
SYSTEM INVOLVED BEYOND LIMITS CONSISTENT WITH  ...  THE PUBLIC INTEREST
...  ."  12 U.S.C.  SECS. 1842(C)(4) AND (5) (1958 ED.).  CLEARLY, IF
RESPONDENTS' ARGUMENT THAT WHITNEY-JEFFERSON WOULD BE A BRANCH BANK
WERE SOUND, THE BOARD WOULD BE COMPELLED TO DISAPPROVE THE ARRANGEMENT,
FOR A PLAN OF ORGANIZATION VIOLATIVE OF FEDERAL LAW WOULD HARDLY BE
CONSISTENT WITH THE STATUTORY COMMAND THAT NO BANK HOLDING COMPANY
SHOULD BE EXPANDED BEYOND THE LIMITS CONSISTNET WITH THE PUBLIC
INTEREST. 

THE RESPONDENTS ALSO ARGUE THAT THE OPERATION OF WHITNEY-JEFFERSON IS
BARRED BY A VALID STATE LAW PROHIBITING ANY SUBSIDIARY OF A BANK
HOLDING COMPANY FROM OPENING FOR BUSINESS "WHETHER OR NOT, A CHARTER,
PERMIT, LICENSE OR CERTIFICATE TO OPEN FOR BUSINESS HAS ALREADY BEEN
ISSUED."  HERE, AS WITH THEIR FIRST ARGUMENT, RESPONDENTS' QUARREL IS
IN ACTUALITY NOT MERELY WITH THE OPENING OF THE BANK, BUT RATHER WITH
ITS OPENING AS A SUBSIDIARY OF WHITNEY HOLDING CORPORATION.  OTHERWISE,
THE OPENING WOULD NOT BE PROHIBITED BY LOUISIANA LAW.  AGAIN, THE BOARD
COULD NOT APPROVE A HOLDING COMPANY ARRANGEMENT INVOLVING THE
ORGANIZATION AND OPENING OF A NEW BANK IF THE OPENING OF THE BANK, BY
REASON OF ITS OWNERSHIP BY A BANK HOLDING COMPANY, WOULD BE PROHIBITED
BY A VALID STATE LAW.  (FN5) 

WE THEREFORE CONCLUDE THAT RESPONDENTS' COMPLAINT TENDERS ISSUES
COGNIZABLE BY THE FEDERAL RESERVE BOARD, AND WE TURN TO THE QUESTION OF
WHETHER SUCH OBJECTIONS MUST FIRST BE RAISED THERE. 

      IV. 

WE BELIEVE CONGRESS INTENDED THE STATUTORY PROCEEDINGS BEFORE THE
BOARD TO BE THE SOLE MEANS BY WHICH QUESTIONS AS TO THE ORGANIZATION OR
OPERATION OF A NEW BANK BY A BANK HOLDING COMPANY MAY BE TESTED. 
ADMITTEDLY THE ACQUISITION OF AN EXISTING BANK IS EXCLUSIVELY WITHIN
THE JURISDICTION OF THE BOARD.  WE KNOW OF NO PERSUASIVE REASON FOR
FINDING A DIFFERENT PROCEDURE REQUIRED WHERE IT IS A NEW BANK THAT IS
SOUGHT TO BE ORGANIZED AND OPERATED SIMPLY BECAUSE THE COMPTROLLER
THERE PERFORMS A FUNCTION IN ADDITION TO THAT OF THE BOARD, I.E., THE
ISSUANCE OF THE CERTIFICATE TO DO BUSINESS. 

MOREOVER, THE BANK HOLDING COMPANY ACT MAKES THE BOARD'S APPROVAL OF
A HOLDING COMPANY ARRANGEMENT BINDING UPON THE COMPTROLLER.  A
PROVISION DESIGNED TO MAKE THE DECISION OF THE COMPTROLLER, RATHER THAN
THAT OF THE BOARD, FINAL WAS REJECTED WHEN THE ACT WAS BEING FRAMED. 
101 CONG. REC. 8186-8187.   THIS LEGISLATIVE HISTORY CLEARLY INDICATES
THAT CONGRESS HAD NO INTENTION TO GIVE THE COMPTROLLER A VETO OVER THE
BOARD IN SUCH CASES.  IT FOLLOWS THAT IT IS THE EXCLUSIVE FUNCTION OF
THE BOARD TO ACT IN SUCH CASES AND CONTESTS MUST BE PURSUED BEFORE IT,
NOT BEFORE THE COMPTROLLER.  THIS POSITION IS ALSO SUPPORTED BY
LEGISLATIVE HISTORY WHICH SHOWS THAT CONGRESS REJECTED A PROPOSAL FOR A
DE NOVO REVIEW IN THE DISTRICT COURTS OF BOARD DECISIONS ON HOLDING
COMPANY PROPOSALS.  COMPARE 12 U.S.C. SEC. 1848 (1958 ED.)  AND S. REP.
NO. 1095, PT. 1, 84TH CONG., 1ST SESS., 9, AND PT. 2, 84TH CONG., 2D
SESS., 5, WITH SEC. 9 OF H.R. 6227, 101 CONG. REC. 8187, AND H.R. REP.
NO. 609, 84TH CONG., 1ST SESS., 22, 25-26.  SUCH A PROCEDURE WOULD HAVE
BEEN SIMILAR TO THAT EMPLOYED HERE AGAINST THE COMPTROLLER BY
RESPONDENTS.  HOWEVER, THE CONGRESS DECIDED OTHERWISE, PROVIDING
INSTEAD FOR REVIEW IN THE COURTS OF APPEALS BASED ON THE FACTS FOUND BY
THE BOARD SUPPORTED BY SUBSTANTIAL EVIDENCE.  WE THINK THESE
CONGRESSIONAL ACTIONS POINT CLEARLY TO THE CONCLUSION THAT IT INTENDED
THAT CHALLENGES TO BOARD APPROVAL OF THE ORGANIZATION AND OPERATION OF
A NEW BANK BY A BANK HOLDING COMPANY BE PURSUED SOLELY AS PROVIDED IN
THE STATUTE.    THIS VIEW IS CONFIRMED BY OUR CASES HOLDING THAT WHERE
CONGRESS HAS PROVIDED STATUTORY REVIEW PROCEDURES DESIGNED TO PERMIT
AGENCY EXPERTISE TO BE BROUGHT TO BEAR ON PARTICULAR PROBLEMS, THOSE
PROCEDURES ARE TO BE EXCLUSIVE.  SEE, E.G., CALLANAN ROAD IMPROVEMENT
CO. V. UNITED STATES, 345 U.S. 507 (1953); MYERS V. BETHLEHEM
SHIPBUILDING CORP., 303 U.S. 41 (1938); TEXAS & PAC. R. CO. V. ABILENE
COTTON OIL CO., 204 U.S. 426 (1907).  CONGRESS HAS SET OUT IN THE BANK
HOLDING COMPANY ACT OF 1956 A CAREFULLY PLANNED AND COMPREHENSIVE
METHOD FOR CHALLENGING BOARD DETERMINATIONS.  THAT ACTION BY CONGRESS
WAS DESIGNED TO PERMIT AN AGENCY, EXPERT IN BANKING MATTERS, TO EXPLORE
AND PASS ON THE RAMIFICATIONS OF A PROPOSED BANK HOLDING COMPANY
ARRANGEMENT.  TO PERMIT A DISTRICT COURT TO MAKE THE INITIAL
DETERMINATION OF A PLAN'S PROPRIETY WOULD SUBSTANTIALLY DECREASE THE
EFFECTIVENESS OF THE STATUTORY DESIGN.  AS WE STATED IN FAR EAST
CONFERENCE V. UNITED STATES, 342 U.S. 570 (1952):

"IN CASES RAISING ISSUES OF FACT NOT WITHIN THE CONVENTIONAL
EXPERIENCE OF JUDGES OR CASES REQUIRING THE EXERCISE OF ADMINISTRATIVE
DISCRETION, AGENCIES CREATED BY CONGRESS FOR REGULATING THE SUBJECT
MATTER SHOULD NOT BE PASSED OVER.  THIS IS SO EVEN THOUGH THE FACTS
AFTER THEY HAVE BEEN APPRAISED BY SPECIALIZED COMPETENCE SERVE AS A
PREMISE FOR LEGAL CONSEQUENCES TO BE JUDICIALLY DEFINED.  UNIFORMITY
AND CONSISTENCY IN THE REGULATION OF BUSINESS ENTRUSTED TO A PARTICULAR
AGENCY ARE SECURED, AND THE LIMITED FUNCTIONS OF REVIEW BY THE
JUDICIARY ARE MORE RATIONALLY EXERCISED, BY PRELIMINARY RESORT FOR
ASCERTAINING AND INTERPRETING THE CIRCUMSTANCES UNDERLYING LEGAL ISSUES
TO AGENCIES THAT ARE BETTER EQUIPPED THAN COURTS BY SPECIALIZATION, BY
INSIGHT GAINED THROUGH EXPERIENCE, AND BY MORE FLEXIBLE PROCEDURE."  AT
574-575. 

HERE THE COURT OF APPEALS HELD THAT THE RELATIONSHIP OF WHITNEY
JEFFERSON TO WHITNEY-NEW ORLEANS WOULD BE THAT OF A BRANCH BANK
NOTWITHSTANDING THE FACT THAT THEY WERE ORGANIZED UNDER A BANK HOLDING
COMPANY ARRANGEMENT.  THE DISTRICT COURT FOUND THE PROPOSAL BARRED BY
LOUISIANA ACT NO. 275 OF 1962.  WE BELIEVE THAT THESE ARE THE VERY
TYPES OF QUESTIONS THAT CONGRESS HAS COMMITTED TO THE BOARD, AND WE
HOLD THAT THE BOARD SHOULD MAKE THE DETERMINATION OF THE PLAN'S
PROPRIETY IN THE FIRST INSTANCE.  THE SOUNDNESS OF THIS CONCLUSION IS
ESPECIALLY EVIDENT WHEN IT IS REMEMBERED THAT THE BOARD HAS PLAYED A
VITAL ROLE IN THE DEVELOPMENT OF THE NATIONAL BANKING LAWS, A ROLE
WHICH MAKES ITS VIEWS OF PARTICULAR BENEFIT TO THE COURTS WHERE
ULTIMATELY THE VALIDITY OF THE ARRANGEMENT WILL BE TESTED. 

MOREOVER, WE REJECT THE NOTION THAT THE BOARD'S DETERMINATION MAY BE
COLLATERALLY ATTACKED IN THE DISTRICT COURT BY A SUIT AGAINST THE
COMPTROLLER.  OPPONENTS OF THE OPENING OF A NEW BANK BY A BANK HOLDING
COMPANY MUST FIRST ATTACK THE ARRANGEMENT BEFORE THE BOARD, SUBJECT
ONLY TO REVIEW BY THE COURTS OF APPEALS.  CITY OF TACOMA V. TAXPAYERS
OF TACOMA, 357 U.S. 320 (1958); UNITED STATES V. CORRICK, 298 U.S. 435
(1936).  THAT CONGRESS HAS NOT EXPRESSLY PROVIDED THAT THE STATUTORY
PROCEDURE IS TO BE EXCLUSIVE DOES NOT REQUIRE A DIFFERENT CONCLUSION. 
FOR CONGRESS HAS EXPRESSLY REJECTED PROPOSED PROVISIONS FOR REVIEW IN
THESE CASES IN THE DISTRICT COURTS.  MOREOVER, IT HAS ENACTED A
SPECIFIC STATUTORY SCHEME FOR OBTAINING REVIEW, AND WHERE CONGRESS HAS
DIRECTED SUCH A PROCEDURE AS THAT FOUND IN THE BANK HOLDING COMPANY ACT
OF 1956, THE DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES COMES
INTO PLAY AND REQUIRES THAT THE STATUTORY MODE OF REVIEW BE ADHERED TO
NOTWITHSTANDING THE ABSENCE OF AN EXPRESS STATUTORY COMMAND OF
EXCLUSIVENESS. 

A REJECTION OF THIS DOCTRINE HERE WOULD RESULT IN UNNECESSARY
DUPLICATION AND CONFLICTING LITIGATION.  SOME OPPONENTS MIGHT
PARTICIPATE BEFORE THE BOARD; OTHERS MIGHT WELL WAIT FOR TERMINATION OF
THE BOARD'S ACTIVITIES AND THEN SUE IN THE DISTRICT COURTS FOR AN
INJUNCTION ACCOMPLISHING THE SAME ULTIMATE END.  THE DIFFERENT RECORDS,
APPLICATIONS OF DIFFERENT STANDARDS AND CONFLICTING DETERMINATIONS THAT
WOULD SURELY RESULT FROM SUCH DUPLICATIVE PROCEDURES ALL MILITATE IN
FAVOR OF THE CONCLUSION THAT THE STATUTORY STEPS PROVIDED IN THE ACT
ARE EXCLUSIVE. 

RESPONDENTS ATTEMPT TO GROUND SUPPORT FOR THE DISTRICT COURT'S
ASSERTED JURISDICTION ON THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C.
SECS. 1001, 1009 (1958 ED.), WHICH PROVIDES THAT "EVERY  ... FINAL
AGENCY ACTION FOR WHICH THERE IS NO OTHER ADEQUATE REMEDY IN ANY COURT
SHALL BE SUBJECT TO JUDICIAL REVIEW  ...  ."  THE SHORT ANSWER TO THIS,
OF COURSE, IS, AS WE HAVE POINTED OUT, THAT THE COMPTROLLER'S ACTION IN
ISSUING A CERTIFICATE IS NOT "FINAL"; IT IS THE ACTION OF THE BOARD
PERMITTING CONSUMMATION OF THE ORGANIZATION OF THE NEW BANK BY THE
HOLDING COMPANY THAT IS FINAL, AND ITS DECISION IS SUBJECT TO REVIEW
ONLY IN THE COURTS OF APPEALS, NOT BEFORE THE COMPTROLLER OR IN THE
DISTRICT COURTS. 

FURTHERMORE, THE RESPONDENTS CONTEND THAT NO PROVISIONS FOR REVIEW OF
THE COMPTROLLER'S DECISION ARE INCLUDED IN ANY OF THE PERTINENT ACTS;
INDEED, THEY SAY, HE HAS ADMITTED AS MUCH IN THIS CASE.  RESPONDENTS
AGAIN OVERLOOK THE FACT THAT THE DECISION HERE APPROVING THE
ORGANIZATION OF THE WHITNEY-JEFFERSON BANK IS NOT FOR THE COMPTROLLER. 
HE ONLY CHECKS THE CONDITION OF THE NEW BANK, ITS CAPITAL, DIRECTORATE,
ETC., AS PROVIDED BY THE NATIONAL BANK ACT.  12 U.S.C. SEC. 26 (1958
ED.).   THAT THE ACTION OF THE COMPTROLLER IS NOT FINAL IS MADE CRYSTAL
CLEAR HERE WHERE, ASSUMING HE SHOULD ISSUE THE DESIRED AUTHORITY TO
WHITNEY-JEFFERSON TO OPEN FOR BUSINESS, IT WOULD BE COMPLETELY NEGATED
IN THE EVENT THAT ON REVIEW THE BOARD'S APPROVAL OF THE HOLDING COMPANY
PLAN WAS REVERSED.  AS WE HAVE SAID, IT IS THE OWNERSHIP OF WHITNEY
JEFFERSON BY THE HOLDING COMPANY THAT IS AT THE HEART OF THE PROJECT,
NOT THE PERMISSION TO OPEN FOR BUSINESS WHICH IS ACTED UPON ROUTINELY
BY THE COMPTROLLER ONCE THE AUTHORITY TO ORGANIZE IS GIVEN BY THE
BOARD. 

WE DO NOT SAY THAT UNDER NO CIRCUMSTANCEO MAY THE COMPTROLLER BE
RESTRAINED IN EQUITY FROM ISSUING A CERTIFICATE TO A NEW BANK.  WE DO
HOLD, HOWEVER, THAT WHERE A BANK HOLDING 

WE DO NOT SAY THAT UNDER NO CIRCUMSTANCES MAY THE COMPTROLLER BE
RESTRAINED IN EQUITY MUST, UNDER THE BANK HOLDING COMPANY ACT, BE
DETERMINED BY THE BOARD, THE STATUTORY REVIEW PROCEDURE SET OUT IN THE
ACT MUST BE UTILIZED BY THOSE DISSATISFIED WITH THE BOARD'S RULING
DESPITE THE FACT THAT THE COMPTROLLER'S CERTIFICATE IS A NECESSARY
PREREQUISITE TO THE OPENING OF THE BANK.  OTHERWISE THE COMMANDS OF THE
CONGRESS WOULD BE COMPLETELY FRUSTRATED. 

V. 

IT IS FOR THIS REASON THAT THE FIFTH CIRCUIT CASE REVIEWING THE
BOARD'S FORMER ACTION SHOULD BE REMANDED TO IT.  SECTION 3(5) OF
LOUISIANA ACT NO. 275 OF 1962, LA. REV. STAT.  SEC. 6:1003(5) (1962
SUPP.), PROVIDES THAT "IT SHALL BE UNLAWFUL  ...  FOR ANY BANK HOLDING
COMPANY OR SUBSIDIARY THEREOF TO OPEN FOR BUSINESS ANY BANK NOT NOW
OPENED FOR BUSINESS, WHETHER OR NOT, A CHARTER, PERMIT, LICENSE OR
CERTIFICATE TO OPEN FOR BUSINESS HAS ALREADY BEEN ISSUED  ...  ." 
(FN6)  THIS ACT WAS PASSED ON JULY 10, 1962, SEVERAL DAYS AFTER THE
BOARD DENIED RESPONDENTS' PETITION FOR RECONSIDERATION.  IT WAS NOT
CONSIDERED BY THE BOARD AS ONE OF THE FACTORS IN THE APPLICATION FOR
REGISTRATION AS A BANK HOLDING COMPANY.  THE PETITION FOR REVIEW,
ATTACKING THE BOARD'S DETERMINATION BEFORE THE FIFTH CIRCUIT, IS, OF
COURSE, NOT BEFORE THIS COURT.  NEVERTHELESS IT IS PERFECTLY OBVIOUS
THAT THE TWO CASES ARE CLOSELY RELATED.  WE HAVE DISCUSSED EARLIER THE
IMPORTANCE WHICH CONGRESS HAS ATTACHED IN THE BANK HOLDING COMPANY ACT
OF 1956 TO THE PRINCIPLE THAT THE FEDERAL RESERVE BOARD, WITH ITS
EXPERTISE IN THE BANKING FIELD, SHOULD MAKE THE INITIAL DETERMINATION
OF THE PROPRIETY OF THE PLAN OF ORGANIZATION GIVING FULL CONSIDERATION
TO THE LEGISLATIVE GUIDELINES SET OUT IN THE ACT.  SECTION 7 OF THE
BANK HOLDING COMPANY ACT OF 1956, 12 U.S.C. SEC. 1846 (1958 ED.),
PROVIDES: 

"THE ENACTMENT BY THE CONGRESS OF THIS CHAPTER SHALL NOT BE CONSTRUED
AS PREVENTING ANY STATE FROM EXERCISING SUCH POWERS AND JURISDICTION
WHICH IT NOW HAS OR MAY HEREAFTER HAVE WITH RESPECT TO BANKS, BANK
HOLDING COMPANIES, AND SUBSIDIARIES THEREOF." 

HERE THE BOARD HAS NOT HAD AN OPPORTUNITY TO DETERMINE THE
APPLICABILITY AND EFFECT OF THE NEW LOUISIANA STATUTE.  WE ARE OF THE
OPINION THAT THIS IS THE VERY TYPE OF QUESTION THAT CONGRESS ENVISIONED
AS BEING RESOLVED IN THE FIRST INSTANCE BY THE BOARD.  IN LINE WITH
THIS LEGISLATIVE POLICY, AND IN THE INTEREST OF JUDICIAL ECONOMY AND
PROPER ADMINISTRATIVE PRACTICE, THE BOARD SHOULD HAVE AN OPPORTUNITY TO
ACT IN THE LIGHT OF LOUISIANA'S NEW LAW.  IT IS FOR THIS REASON THAT WE
GIVE THE PARTIES NOT EXCEEDING 60 DAYS TO PROCEED BEFORE THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT TO SECURE SUCH A REMAND. 

IT APPEARS FROM THE RECORD THAT THE COMPTROLLER ADVISED THE DISTRICT
COURT THAT "IF THE PRELIMINARY INJUNCTION ENTERED HEREIN IS VACATED,
AND IF WHITNEY NATIONAL BANK IN JEFFERSON PARISH SO REQUESTS, INASMUCH
AS UPON A CAREFUL EXAMINATION OF THE FACTS WITHIN MY KNOWLEDGE IT
APPEARS THAT SUCH ASSOCIATION IS LAWFULLY ENTITLED TO COMMENCE THE
BUSINESS OF BANKING, IT IS MY PRESENT INTENTION TO ISSUE SUCH
CERTIFICATE."  R. 310.  OUR DISPOSITION, HOWEVER, DOES NOT FREE THE
COMPTROLLER TO AUTHORIZE THE OPENING OF THE BANK, FOR THE COURT OF
APPEALS HAS THE POWER TO PREVENT THE ISSUANCE OF THE CERTIFICATE
PENDING FINAL DISPOSITION OF THE MATTER.  AS THE COMPTROLLER HIMSELF
NOTES, THE CERTIFICATE MAY ISSUE ONLY WHEN THE APPLICANT IS "LAWFULLY
ENTITLED TO COMMENCE THE BUSINESS OF BANKING."  IT WOULD NOT BE
"LAWFULLY ENTITLED" TO OPEN IN THE EVENT THE COURT OF APPEALS STAYED
THE ORDER OF APPROVAL OF THE FEDERAL RESERVE BOARD PENDING FINAL
DISPOSITION OF THE REVIEW PROCEEDING.  THE COURT, OF COURSE, IS
EMPOWERED UNDER 28 U.S.C. SEC. 1651 (1958 ED.)  TO DO SO.  SEE SCRIPPS
HOWARD RADIO, INC. V. FCC, 316 U.S. 4 (1942); BOARD OF GOVERNORS OF
FEDERAL RESERVE SYSTEM V. TRANSAMERICA CORP., 184 F.2D 311 (1950).  IN
THE EVENT SUCH A STAY WERE ISSUED WE FEEL CERTAIN THAT THE COMPTROLLER
WOULD NOT ATTEMPT TO ISSUE THE CERTIFICATE.  (FN7)  BUT IF HE DID AND
THE COURT OF APPEALS SHOULD FIND IT NECESSARY TO TAKE DIRECT ACTION TO
MAINTAIN THE STATUS QUO AND PREVENT THE OPENING OF THE BANK, IT HAS
AMPLE POWER TO DO SO.  THE WHITNEY HOLDING CORPORATION, A PARTY
PRESENTLY BEFORE THE FIFTH CIRCUIT, OWNS AND CONTROLS BOTH BANKS AND
THROUGH IT THE COURT COULD REACH THE TECHNICAL APPLICANT, WHITNEY
JEFFERSON.  WE THINK IT CLEAR THAT THE COURT OF APPEALS CAN
APPROPRIATELY FASHION AN ORDER DESIGNED TO COMPEL WHITNEY HOLDING
CORPORATION NOT ONLY TO REFRAIN FROM ACTING ITSELF BUT TO REQUIRE THAT
ITS SUBSIDIARY REFRAIN FROM REQUESTING THE CERTIFICATE AND FROM OPENING
THE BANK.  INDEED, UPON PROPER APPLICATION BY THE RESPONDENTS THE COURT
OF APPEALS COULD STAY THE HAND OF WHITNEY-JEFFERSON ITSELF SINCE IT IS
WITHIN THE JURISDICTION OF THAT COURT.  IT IS SUFFICIENT TO SAY HERE
THAT THE FIFTH CIRCUIT'S POWER TO PROTECT ITS JURISDICTION IS BEYOND
QUESTION. 

IN THE INSTANT PROCEEDINGS, THE JUDGMENTS OF THE COURT OF APPEALS ARE
REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTION
TO DISMISS THE COMPLAINT.  ISSUANCE OF OUR JUDGMENT IS STAYED FOR 60
DAYS TO AFFORD THE PARTIES OPPORTUNITY TO PROCEED AS OUTLINED IN THIS
OPINION.  IT IS SO ORDERED. 

FN1  LA. REV. STAT. SEC. 6:54 (1950) PROHIBITS BANKS FROM OPENING
BRANCH OFFICES IN PARISHES OTHER THAN THEIR HOME PARISH, AND THESE
GEOGRAPHICAL LIMITATIONS ARE MADE APPLICABLE TO NATIONAL BANKS BY SEC.
23 OF THE BANKING ACT OF 1933, 12 U.S.C. SEC. 36(C)(2) (1958 ED.). 

FN2  SECTION 9 OF THE BANK HOLDING COMPANY ACT OF 1956, 12 U.S.C.
SEC. 1848 (1958 ED.)  PROVIDES FOR REVIEW OF FEDERAL RESERVE BOARD
ACTION IN THE COURT OF APPEALS. 

FN3  12 U.S.C. SEC. 1846 (1958 ED.)  PROVIDES: 

"THE ENACTMENT BY THE CONGRESS OF THIS CHAPTER SHALL NOT BE CONSTRUED
AS PREVENTING ANY STATE FROM EXERCISING SUCH POWERS AND JURISDICTION
WHICH IT NOW HAS OR MAY HEREAFTER HAVE WITH RESPECT TO BANKS, BANK
HOLDING COMPANIES, AND SUBSIDIARIES THEREOF." 

FN4  THE BOARD APPROVAL WAS ON MAY 3, 1962, WHILE LOUISIANA ACT NO.
275 OF 1962, LA. REV.  STAT. SECS. 6:1001-6:1006 (1962 SUPP.), DID NOT
BECOME EFFECTIVE UNTIL JULY 10, 1962, AT WHICH TIME THE BOARD'S
APPROVAL WAS NOT FINAL, BEING ON REVIEW IN THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT IN BANK OF NEW ORLEANS & TRUST CO. ET AL. V. BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM, NO. 19788 (C.A. 5TH CIR.). 

FN5  THE BOARD HAS INDICATED THAT IN ITS VIEW SEC. 7 OF THE ACT
PERMITS THE STATES TO PROHIBIT THE FORMATION OF BANK HOLDING
COMPANIES.  SEE TRANS-NEBRASKA CO., 49 FED. RES.  BULL.  633 (1963). 

FN6  OUR DISPOSITION OBVIATES THE NECESSITY OF PASSING UPON THE
CONTENTION OF THE PETITIONERS THAT LOUISIANA'S LAW IS INVALID UNDER THE
SUPREMACY CLAUSE AND THE EQUAL PROTECTION CLAUSE. 

FN7  AS WE HAVE SAID THERE MAY BE EXCEPTIONAL CIRCUMSTANCES UNDER
WHICH EQUITY MAY STAY THE HAND OF THE COMPTROLLER IN ISSUING A
CERTIFICATE TO A NEW BANK.  OBVIOUSLY IF THE HOLDING COMPANY
APPLICATION HAS NOT BEEN ACTED UPON BY THE BOARD, THE COMPTROLLER WOULD
HAVE NO POWER TO ISSUE THE CERTIFICATE AND HIS PERSISTENCE IN DOING SO
WOULD SUBJECT HIM TO THE TEMPORARY ORDERS OF A COURT OF COMPETENT
JURISDICTION.    SUCH AN ACTION WOULD NOT REQUIRE AN IMPERMISSIBLE
COLLATERAL ATTACK ON THE MERITS OF THE PROPOSAL, WHICH ARE RESERVED FOR
THE BOARD.  ITS SOLE PURPOSE WOULD BE TO PREVENT THE COMPTROLLER FROM
ACTING WITHOUT THE BOARD'S APPROVAL - AN OBJECTIVE THAT WOULD PROTECT
THE JURISDICTION OF THE REVIEWING COURT OF APPEALS RATHER THAN RUN
AFOUL OF IT. 

MR. JUSTICE DOUGLAS, DISSENTING.    I DISSENT FROM THE RULING OF THE
COURT THAT THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HAS NO
JURISDICTION OVER THIS PRESENT CONTROVERSY WITH THE COMPTROLLER OF THE
CURRENCY. 

TWO FEDERAL AGENCIES ARE INVOLVED IN THIS BANK ACQUISITION PROGRAM: 

THE FEDERAL RESERVE BOARD HAS JURISDICTION UNDER THE BANK HOLDING
COMPANY ACT OF 1956 TO GRANT OR DENY AN APPLICATION BY A HOLDING
COMPANY OF THE RIGHT TO ACQUIRE THE SHARES OF ANY BANK.  12 U.S.C. SEC.
1842. 

THE COMPTROLLER OF THE CURRENCY HAS JURISDICTION UNDER THE NATIONAL
BANK ACT TO LICENSE THE OPENING OF A BANKING OPERATION WHERE IT APPEARS
THAT THE APPLICANT "IS LAWFULLY ENTITLED TO COMMENCE THE BUSINESS OF
BANKING."  12 U.S.C. SEC. 27. 

IT IS THUS APPARENT THAT THE TWO ADMINISTRATIVE PROCEEDINGS INVOLVE
DIFFERENT, THOUGH RELATED, MATTERS; DIFFERENT, THOUGH RELATED,
APPLICANTS; AND DIFFERENT, THOUGH RELATED, ISSUES. 

THE DECISION OF THE BOARD IS SUBJECT TO REVIEW IN THE COURT OF
APPEALS AS PROVIDED IN 12 U.S.C. SEC. 1848.  BUT, AS STATED BY THE
SOLICITOR GENERAL, "THE NATIONAL BANK ACT  ...  MAKES NO PROVISION FOR
AN ADMINISTRATIVE HEARING OR FOR JUDICIAL REVIEW, AND THE COMPTROLLER'S
DECISIONS ARE MADE INFORMALLY, WITHOUT AN ADMINISTRATIVE RECORD."  THE
COURTS, HOWEVER, HAVE HELD THAT JUDICIAL COGNIZANCE OF A CONTROVERSY
WITH THE COMPTROLLER MAY BE TAKEN AND JUDICIAL POWER EXERCISED TO KEEP
THE COMPTROLLER WITHIN STATUTORY BOUNDS.  CAMDEN TRUST CO. V. GIDNEY,
112 U.S. APP. D.C. 197, 301 F.2D 521; UNION SAVINGS BANK V. SAXON, 118
U.S. APP. D.C. 296, 298, 335 F.2D 718, 720, AND CASES CITED.  THAT
CONCLUSION IS CONSISTENT WITH OUR HOLDING IN COLUMBIA BROADCASTING
SYSTEM, INC. V. UNITED STATES, 316 U.S. 407, 423-424, THAT, ABSENT A
CONGRESSIONAL DESIGN TO BAR ALL JUDICIAL REVIEW (SWITCHMEN'S UNION V.
NATIONAL MEDIATION BOARD, 320 U.S. 297), INJUNCTIVE RELIEF IS AVAILABLE
WHERE ADMINISTRATIVE REMEDIES ARE EITHER INAPPLICABLE OR INADEQUATE. 
THIS RULE KEEPS THE COMPTROLLER FROM BEING A FREE-WHEELING AGENCY
DISPENSING FEDERAL FAVORS; AND IT GIVES SOME ASSURANCE THAT HE WILL
RENDER PRINCIPLED DECISIONS WITHIN THE RULE OF LAW LAID DOWN BY
CONGRESS. 

THE FACTS OF THIS CASE DRAMATIZE THE IMPORTANCE OF THE JURISDICTION
OF THE DISTRICT COURT.  SHORTLY AFTER THE BOARD'S FINAL ACTION IN THIS
CASE, AND BEFORE REVIEW OF ITS ACTION BY THE COURT OF APPEALS HAD BEEN
SOUGHT, LOUISIANA PASSED A LAW (LA. REV. STAT. SECS 6:1001 TO 6:1006
(1962 SUPP.)) WHICH PROVIDES IN PERTINENT PART:  "IT SHALL BE UNLAWFUL
...  FOR ANY BANK HOLDING COMPANY OR SUBSIDIARY THEREOF TO OPEN FOR
BUSINESS ANY BANK NOT NOW OPENED FOR BUSINESS  ...  ."  THE BANK
HOLDING COMPANY ACT, 12 U.S.C. SEC. 1846, SPECIFICALLY RESERVES TO THE
STATES A BROAD POWER SEEMINGLY SUFFICIENT TO BAR BANK HOLDING COMPANIES
OR THEIR SUBSIDIARIES FROM EXTENDING THEIR DOMAINS.  (FN1) 

IN SPITE OF THE PENDING REVIEW OF THE BOARD'S ORDER IN THE COURT OF
APPEALS AND IN SPITE OF THE INTERVENING LOUISIANA LAW, THE COMPTROLLER
ON AUGUST 9, 1962, ADVISED THE DISTRICT COURT IN AFFIDAVIT FORM: 

"UPON CONSIDERATION OF THESE SUBSEQUENT DEVELOPMENTS, AND AFTER
CAREFUL EXAMINATION OF THE LOUISIANA STATUTE, I HAVE CONCLUDED THAT
THERE HAS OCCURRED NO REASON TO ALTER THE COMPTROLLER'S PRIOR
DETERMINATION THAT A CERTIFICATE OF AUTHORITY SHOULD BE ISSUED TO
WHITNEY NATIONAL BANK IN JEFFERSON PARISH, PURSUANT TO 12 U.S.C. SEC.
27. 

"ACCORDINGLY, IF THE PRELIMINARY INJUNCTION ENTERED HEREIN IS
VACATED, AND IF WHITNEY NATIONAL BANK IN JEFFERSON PARISH SO REQUESTS,
INASMUCH AS UPON A CAREFUL EXAMINATION OF THE FACTS WITHIN MY KNOWLEDGE
IT APPEARS THAT SUCH ASSOCIATION IS LAWFULLY ENTITLED TO COMMENCE THE
BUSINESS OF BANKING, IT IS MY PRESENT INTENTION TO ISSUE SUCH
CERTIFICATE."  (FN2) 

THIS THREAT MAKES A MOCKERY OF THE SOLICITOR GENERAL'S ASSURANCE THAT
THE PARTIES HAVE A FULL AND ADEQUATE REMEDY IN THE COURT OF APPEALS
REVIEW OF THE BOARD'S ORDER AND OF HIS POSITION THAT THE PRESENT SUIT
IS DESIGNED AS A COLLATERAL ATTACK ON THE REVIEW OF THAT ORDER.  FOR
WITHOUT THE INJUNCTION ISSUED BY THE DISTRICT COURT THE COMPTROLLER
CANDIDLY STATES THAT THE NEW BRANCH BANK WOULD BE IN BUSINESS, FLOUTING
THE NEW LOUISIANA LAW, WHOSE PROTOTYPE WE HAVE ALREADY SUSTAINED. 
(FN3) 

THE RULING OF THE COURT THAT THE DISTRICT COURT HAD NO JURISDICTION
IN THIS CASE PROMISES SERIOUS CONSEQUENCES.  IT MEANS THERE MAY BE AN
HIATUS DURING WHICH THE COMPTROLLER CAN TAKE THE LAW INTO HIS OWN HANDS
WITHOUT RESTRAINT FROM ANYONE.  THE COURT LOOKS TO THE COURT OF APPEALS
TO GIVE PROTECTION DURING THAT HIATUS.  IN THIS CASE THE BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM APPROVED THE HOLDING COMPANY
APPLICATION ON MAY 3, 1962.  THE ACTION IN THE DISTRICT COURT WAS FILED
ON JUNE 9, 1962.  BUT JUDICIAL REVIEW OF THE BOARD'S ACTION BY THE
COURT OF APPEALS WAS NOT SOUGHT UNTIL JUNE 30, 1962. 

IF RESPONDENTS HAD ACCELERATED THEIR REVIEW OF THE BOARD'S ACTION,
THEY STILL WOULD NOT HAVE HAD ANY PROTECTION AGAINST THE COMPTROLLER
FOR HE WAS NOT A PARTY TO THE ACTION IN THE COURT OF APPEALS; AND AS
THE RECORD SHOWS IF HE HAD BEEN FREED FROM THE RESTRAINT OF THE
DISTRICT COURT, HIS ALLIANCE WITH WHITNEY-JEFFERSON WOULD HAVE RESULTED
IN A FLOUTING OF THE LAW. 

WHITNEY-JEFFERSON, MOREOVER, WAS NOT A PARTY IN THE FIFTH CIRCUIT
PROCEEDING.  NOR WILL EITHER THE APPLICANT "BRANCH BANK" OR THE HOLDING
COMPANY NORMALLY BE A PARTY TO THE APPEAL IN THE COURT OF APPEALS.  THE
STATUTE PROVIDING FOR JUDICIAL REVIEW OF A BOARD ORDER AT THE INSTANCE
OF THE "PARTY AGGRIEVED" DOES NOT MAKE THEM PARTIES.  12 U.S.C. SEC.
1848.  THE GOVERNING RULE OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
SAYS THAT THE "AGENCY, BOARD, COMMISSION OR OFFICER CONCERNED SHALL BE
NAMED AS RESPONDENT"; BUT IT IS NOWHERE PROVIDED THAT THOSE WHO WERE
SUCCESSFUL BEFORE THE BOARD OR AGENCY SHALL ALSO BE MADE RESPONDENTS. 
RULE 39, 28 U.S.C.A. AS IT HAPPENS, WHITNEY HOLDING CORPORATION SEEMS
TO HAVE INTERVENED IN THE APPEAL TO SUPPORT THE BOARD.  BUT THIS IS A
FORTUITOUS CIRCUMSTANCE.  AFTER TODAY'S DECISION IT WILL NO DOUBT OCCUR
TO THOSE WHO FIND THEMSELVES IN WHITNEY'S POSITION THAT POSSIBLY THEY
MAY, WITH THE HELP OF THE COMPTROLLER, BE ABLE TO OPEN THEIR DOORS FOR
BUSINESS IN DEFIANCE OF STATE LAW SIMPLY BY STAYING OUT OF THE REVIEW
PROCEEDING IN THE COURT OF APPEALS AND KEEPING THEIR HOLDING COMPANY
MASTER OUT OF IT ALSO.  PERHAPS, AS THE COURT SUGGESTS, THE COURT OF
APPEALS WILL ALWAYS BE ABLE TO FIND THE MEANS TO PREVENT SUCH AN
EVENTUALITY BY RESORT TO 28 U.S.C. SEC. 1651; PERHAPS IT WILL NOT.  BUT
THERE CAN BE NO DOUBT THAT MAINTENANCE OF THE JURISDICTION OF THE
DISTRICT COURT IS ESSENTIAL BOTH FOR KEEPING THE DUAL JURISDICTION OF
THE BOARD AND OF THE COMPTROLLER FROM A COLLISION COURSE AND FOR
KEEPING THE COMPTROLLER WITHIN BOUNDS OF THE LAW. 

I ALSO DISSENT FROM REMITTING THE CONSTITUTIONALITY OF THE LOUISIANA
ACT TO THE FEDERAL RESERVE BOARD AND THUS GIVING ADMINISTRATIVE
"EXPERTISE" NEW AND SURPRISING DIMENSIONS. 

HERETOFORE WE HAVE REMITTED CAUSES TO FEDERAL AGENCIES WHERE "ISSUES
OF FACT NOT WITHIN THE CONVENTIONAL EXPERIENCE OF JUDGES" ARE RAISED OR
WHERE THE CASE REQUIRES "THE EXERCISE OF ADMINISTRATIVE DISCRETION." 
FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570, 574.  HERE THE
FACTS ARE KNOWN AND THE BARE, BALD QUESTION OF THE CONSTITUTIONALITY OF
LOUISIANA'S LAW IS TENDERED.   IT IS PRESENTED IN THIS ACTION IN THE
DISTRICT COURT; THE COMPTROLLER THREATENS TO FLOUT THAT LAW; YET IF IT
IS A VALID LAW, THE NEW BANK IS NOT "LAWFULLY ENTITLED TO COMMENCE THE
BUSINESS OF BANKING" WITHIN THE MEANING OF THE NATIONAL BANK ACT, 12
U.S.C. SEC. 27.  I WOULD DECIDE THAT ISSUE HERE AND NOW. 

FN1  SECTION 7 OF THE ACT READS AS FOLLOWS: 

"THE ENACTMENT BY THE CONGRESS OF THIS CHAPTER SHALL NOT BE CONSTRUED
AS PREVENTING ANY STATE FROM EXERCISING SUCH POWERS AND JURISDICTION
WHICH IT NOW HAS OR MAY HEREAFTER HAVE WITH RESPECT TO BANKS, BANK
HOLDING COMPANIES, AND SUBSIDIARIES THEREOF."  12 U.S.C. SEC. 1846. 

FN2  THE COMPTROLLER AND THE APPLICANT BANK, WHITNEY-JEFFERSON, MADE
A SPEEDY ACCOMMODATION AS SHOWN IN WHITNEY-JEFFERSON'S BRIEF IN THIS
COURT: 

"ON MAY 10, 1962, WHITNEY-JEFFERSON EXECUTED AND DELIVERED TO THE NEW
COMPTROLLER OF THE CURRENCY ITS ARTICLES OF ASSOCIATION AND ITS
CERTIFICATE OF ORGANIZATION, THEREBY ESTABLISHING ITS CORPORATE
EXISTENCE AS A NATIONAL BANKING ASSOCIATION IN ACCORDANCE WITH 12
U.S.C. SEC. 24.  ON MAY 18, 1962, THE COMPTROLLER APPROVED THE FINAL
CORPORATE FORMALITIES NECESSARY TO COMPLETE THE PROGRAM.  ON MAY 24,
1962, THE DULY ELECTED AND QUALIFIED DIRECTORS OF WHITNEY-JEFFERSON
ADOPTED BY-LAWS AND TOOK ACTION BY WHICH THE NEW BANK BECAME A MEMBER
OF THE FEDERAL RESERVE SYSTEM. 

"THEREAFTER, THE SOLE REMAINING LEGAL STEP NECESSARY TO PERMIT THE
OPENING OF WHITNEY-JEFFERSON FOR BUSINESS WAS THE ISSUANCE TO IT BY THE
COMPTROLLER, UNDER 12 U.S.C. SEC 27, OF A CERTIFICATE AUTHORIZING IT TO
COMMENCE THE BUSINESS OF BANKING.  THE COMPTROLLER WAS ABOUT TO ISSUE
SUCH A CERTIFICATE WHEN THIS ACTION WAS COMMENCED ON JUNE 9, 1962. 
WHITNEY-JEFFERSON WAS PREPARED TO OPEN ITS DOORS FOR BUSINESS, AND
WOULD HAVE COMMENCED OPERATIONS VIRTUALLY AS SOON AS IT RECEIVED A
CERTIFICATE." 

FN3  SEE BRAEBURN SECURITIES CORP. V. SMITH, 15 ILL. 2D 55, 153
N.E.2D 806, WHERE A STATE STATUTE FORBADE HOLDING-COMPANY SHAREHOLDERS
FROM ACQUIRING STOCK OF NATIONAL BANKS.  WE DISMISSED THE APPEAL "FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION."  359 U.S. 311.  ACCORD: TRANS
NEBRASKA CO., 49 FED. RES. BULL.  633, 638 (1963).  THAT DECISION WAS
IN LINE WITH FEDERAL POLICY OF MAKING STATE LAW THE STANDARD WHEN IT
COMES TO CERTAIN KINDS OF BRANCH BANKING.  SEE UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 328. 

MR. JUSTICE BLACK, DISSENTING. 

FOR THE REASONS GIVEN IN HIS DISSENTING OPINION, I AGREE WITH MY
BROTHER DOUGLAS THAT THE DISTRICT COURT HAS JURISDICTION OVER THIS
CONTROVERSY AND THAT THE QUESTION OF THE LOUISIANA ACT'S
CONSTITUTIONALITY SHOULD NOT BE REMITTED TO THE FEDERAL RESERVE BOARD,
AND I JOIN HIS DISSENT ON BOTH THOSE POINTS.  I WOULD GO FURTHER,
HOWEVER, AND AFFIRM THE DISTRICT COURT'S JUDGMENT.  AS POINTED OUT IN
MR. JUSTICE DOUGLAS' DISSENT, LOUISIANA NOW HAS A LAW MAKING IT
UNLAWFUL FOR ANY BANK HOLDING COMPANY TO OPEN FOR BUSINESS IN THAT
STATE AND CONGRESS HAS CONSENTED FOR STATES TO PASS SUCH A LAW. 
ACCORDINGLY, NEITHER THE COMPTROLLER NOR THE FEDERAL RESERVE BOARD HAS
POWER TO PERMIT THE WHITNEY HOLDING CORPORATION TO OPEN A BANK IN
LOUISIANA.  UNDER THESE CIRCUMSTANCES THERE IS NO REASON WHATEVER,
EXCEPT AN ENTIRELY TECHNICAL ONE, TO LET THE LITIGATION OVER THIS
MATTER PROCEED ANY FURTHER.  I WOULD THEREFORE END IT BY AFFIRMING THE
JUDGMENTS OF THE COURT OF APPEALS AFFIRMING THE JUDGMENT OF THE
DISTRICT COURT, A DISPOSITION WHICH WOULD, OF COURSE, CALL FOR A
DISMISSAL OF THE RELATED CONTROVERSY NOW PENDING IN THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 
..END :







FORTSON V. DORSEY 379 U.S. 433 


NO. 178.  ARGUED DECEMBER 10, 1964 - DECIDED JANUARY 18, 1965 - 228 F.
SUPP. 259, REVERSED. 


UNDER GEORGIA'S 1962 SENATORIAL REAPPORTIONMENT ACT THE STATE IS
DIVIDED INTO SENATORIAL DISTRICTS THAT ARE CONCEDED TO BE SUBSTANTIALLY
EQUAL IN POPULATION.  EXCEPT FOR THE SEVEN MOST POPULOUS COUNTIES, FROM
ONE TO EIGHT COUNTIES COMPRISE A DISTRICT AND THE VOTERS THEREIN, ON A
DISTRICT-WIDE BASIS, ELECT THE SENATOR FOR THAT DISTRICT.  THE SEVEN
MOST POPULOUS COUNTIES ARE DIVIDED INTO FROM TWO TO SEVEN DISTRICTS
EACH AND THE VOTERS IN EACH SUCH COUNTY, INSTEAD OF ELECTING ONLY ONE
SENATOR FROM THE DISTRICT IN WHICH THEY RESIDE, ELECT, ON A COUNTY-WIDE
BASIS, THAT NUMBER OF SENATORS THAT THE COUNTY HAS DISTRICTS. 
APPELLEES, REGISTERED VOTERS IN MULTI-DISTRICT COUNTIES OF GEORGIA,
BROUGHT THIS ACTION IN THE FEDERAL DISTRICT COURT AGAINST THE SECRETARY
OF STATE AND LOCAL ELECTION OFFICIALS, SEEKING A DECREE THAT THE COUNTY
WIDE VOTING REQUIREMENT IN THE SEVEN MULTI-DISTRICT COUNTIES VIOLATES
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  A THREE-JUDGE
DISTRICT COURT GRANTED APPELLEES' MOTION FOR SUMMARY JUDGMENT, HOLDING
THAT THE DIFFERENCE BETWEEN ELECTING SENATORS IN DISTRICTS COMPRISING A
COUNTY OR GROUP OF COUNTIES AND IN THE MULTI-DISTRICT COUNTIES
CONSTITUTES INVIDIOUS DISCRIMINATION.  HELD:  EQUAL PROTECTION DOES NOT
NECESSARILY REQUIRE FORMATION OF ALL SINGLE-MEMBER DISTRICTS IN A
STATE'S LEGISLATIVE APPORTIONMENT SCHEME.  REYNOLDS V. SIMS, 377 U.S.
533, FOLLOWED.  PP. 436-439. 

FORTSON, SECRETARY OF STATE OF GEORGIA V. DORSEY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

GEORGIA'S 1962 SENATORIAL REAPPORTIONMENT ACT (FN1) APPORTIONS THE 54
SEATS OF THE GEORGIA SENATE AMONG THE STATE'S 159 COUNTIES.  THE 54
SENATORIAL DISTRICTS CREATED BY THE ACT ARE DRAWN, SO FAR AS POSSIBLE,
ALONG EXISTING COUNTY LINES.  THIRTY-THREE OF THE SENATORIAL DISTRICTS
ARE MADE UP OF FROM ONE TO EIGHT COUNTIES EACH, (FN2) AND VOTERS IN
THESE DISTRICTS ELECT THEIR SENATORS BY A DISTRICT-WIDE VOTE.  THE
REMAINING 21 SENATORIAL DISTRICTS ARE ALLOTTED IN GROUPS OF FROM TWO TO
SEVEN AMONG THE SEVEN MOST POPULOUS COUNTIES, BUT VOTERS IN THESE
DISTRICTS DO NOT ELECT A SENATOR BY A DISTRICT-WIDE VOTE; INSTEAD THEY
JOIN WITH THE VOTERS OF THE OTHER DISTRICTS OF THE COUNTY IN ELECTING
ALL THE COUNTY'S SENATORS BY A COUNTY-WIDE VOTE. 

THE APPELLEES, REGISTERED VOTERS OF GEORGIA, BROUGHT THIS ACTION IN
THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AGAINST THE
SECRETARY OF STATE OF GEORGIA AND LOCAL ELECTION OFFICIALS SEEKING A
DECREE THAT THE REQUIREMENT OF COUNTY-WIDE VOTING IN THE SEVEN MULTI
DISTRICT COUNTIES VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  A THREE-JUDGE COURT GRANTED APPELLEES' MOTION
FOR SUMMARY JUDGMENT, STATING THAT "THE STATUTE CAUSES A CLEAR
DIFFERENCE IN THE TREATMENT ACCORDED VOTERS IN EACH OF THE TWO CLASSES
OF SENATORIAL DISTRICTS.  IT IS THE SAME LAW APPLIED DIFFERENTLY TO
DIFFERENT PERSONS.  THE VOTERS SELECT THEIR OWN SENATOR IN ONE CLASS OF
DISTRICTS.  IN THE OTHER THEY DO NOT.  THEY MUST JOIN WITH OTHERS IN
SELECTING A GROUP OF SENATORS AND THEIR OWN CHOICE OF A SENATOR MAY BE
NULLIFIED BY WHAT VOTERS IN OTHER DISTRICTS OF THE GROUP DESIRE.  THIS
DIFFERENCE IS A DISCRIMINATION AS BETWEEN VOTERS IN THE TWO CLASSES
...  .  THE STATUTE HERE IS NOTHING MORE THAN A CLASSIFICATION OF
VOTERS IN SENATORIAL DISTRICTS ON THE BASIS OF HOMESITE, TO THE END
THAT SOME ARE ALLOWED TO SELECT THEIR REPRESENTATIVES WHILE OTHERS ARE
NOT.  IT IS AN INVIDIOUS DISCRIMINATION TESTED BY ANY STANDARD."  228
F. SUPP. 259, 263.  WE NOTED PROBABLE JURISDICTION, 379 U.S. 810.  WE
REVERSE. 

ONLY LAST TERM, IN OUR OPINION IN REYNOLDS V. SIMS, 377 U.S. 533,
DECIDED AFTER THE DECISION BELOW, WE REJECTED THE NOTION THAT EQUAL
PROTECTION NECESSARILY REQUIRES THE FORMATION OF SINGLE-MEMBER
DISTRICTS.  IN DISCUSSING THE IMPACT ON BICAMERALISM OF THE EQUAL
PROTECTION STANDARDS, WE SAID, "ONE BODY COULD BE COMPOSED OF SINGLE
MEMBER DISTRICTS WHILE THE OTHER COULD HAVE AT LEAST SOME MULTI-MEMBER
DISTRICTS."  377 U.S., AT 577.  AGAIN, IN HOLDING THAT A STATE MIGHT
LEGITIMATELY DESIRE TO MAINTAIN THE INTEGRITY OF VARIOUS POLITICAL
SUBDIVISIONS, SUCH AS COUNTIES, WE SAID:  "SINGLE-MEMBER DISTRICTS MAY
BE THE RULE IN ONE STATE, WHILE ANOTHER STATE MIGHT DESIRE TO ACHIEVE
SOME FLEXIBILITY BY CREATING MULTI-MEMBER OR FLOTERIAL DISTRICTS. 
WHATEVER THE MEANS OF ACCOMPLISHMENT, THE OVERRIDING OBJECTIVE MUST BE
SUBSTANTIAL EQUALITY OF POPULATION AMONG THE VARIOUS DISTRICTS, SO THAT
THE VOTE OF ANY CITIZEN IS APPROXIMATELY EQUAL IN WEIGHT TO THAT OF ANY
OTHER CITIZEN IN THE STATE."  377 U.S., AT 579. 

IT IS NOT CONTENDED THAT THERE IS NOT "SUBSTANTIAL EQUALITY OF
POPULATION" AMONG THE 54 SENATORIAL DISTRICTS.  THE EQUAL PROTECTION
ARGUMENT IS FOCUSED SOLELY UPON THE QUESTION WHETHER COUNTY-WIDE VOTING
IN THE SEVEN MULTI-DISTRICT COUNTIES RESULTS IN DENYING THE RESIDENTS
THEREIN A VOTE "APPROXIMATELY EQUAL IN WEIGHT TO THAT OF" VOTERS
RESIDENT IN THE SINGLE-MEMBER CONSTITUENCIES.  CONTRARY TO THE DISTRICT
COURT, WE CANNOT SAY THAT IT DOES.  THERE IS CLEARLY NO MATHEMATICAL
DISPARITY.  FULTON COUNTY, THE STATE'S LARGEST CONSTITUENCY, HAS A
POPULATION NEARLY SEVEN TIMES LARGER THAN THAT OF A SINGLE-DISTRICT
CONSTITUENCY AND FOR THAT REASON ELECTS SEVEN SENATORS.  EVERY FULTON
COUNTY VOTER, THEREFORE, MAY VOTE FOR SEVEN SENATORS TO REPRESENT HIS
INTERESTS IN THE LEGISLATURE.  BUT THE APPELLEES ASSERT THAT THIS
SCHEME IS DEFECTIVE BECAUSE COUNTY-WIDE VOTING IN MULTI-DISTRICT
COUNTIES COULD, AS A MATTER OF MATHEMATICS, RESULT IN THE NULLIFICATION
OF THE UNANIMOUS CHOICE OF THE VOTERS OF A DISTRICT, THEREBY THRUSTING
UPON THEM A SENATOR FOR WHOM NO ONE IN THE DISTRICT HAD VOTED.  BUT
THIS IS ONLY A HIGHLY HYPOTHETICAL ASSERTION (FN3) THAT, IN ANY EVENT,
IGNORES THE PRACTICAL REALITIES OF REPRESENTATION IN A MULTI-MEMBER
CONSTITUENCY.  IT IS NOT ACCURATE TO TREAT A SENATOR FROM A MULTI
DISTRICT COUNTY AS THE REPRESENTATIVE OF ONLY THAT DISTRICT WITHIN THE
COUNTY WHEREIN HE RESIDES.  THE STATUTE USES DISTRICTS IN MULTI
DISTRICT COUNTIES MERELY AS THE BASIS OF RESIDENCE FOR CANDIDATES, NOT
FOR VOTING OR REPRESENTATION.  EACH DISTRICT'S SENATOR MUST BE A
RESIDENT OF THAT DISTRICT, BUT SINCE HIS TENURE DEPENDS UPON THE COUNTY
WIDE ELECTORATE HE MUST BE VIGILANT TO SERVE THE INTERESTS OF ALL THE
PEOPLE IN THE COUNTY, AND NOT MERELY THOSE OF PEOPLE IN HIS HOME
DISTRICT; THUS IN FACT HE IS THE COUNTY'S AND NOT MERELY THE DISTRICT'S
SENATOR.  IF THE WEIGHT OF THE VOTE OF ANY VOTER IN A FULTON COUNTY
DISTRICT, WHEN HE VOTES FOR SEVEN SENATORS TO REPRESENT HIM IN THE
GEORGIA SENATE, IS NOT THE EXACT EQUIVALENT OF THAT OF A RESIDENT OF A
SINGLE-MEMBER CONSTITUENCY, WE CANNOT SAY THAT HIS VOTE IS NOT
"APPROXIMATELY EQUAL IN WEIGHT TO THAT OF ANY OTHER CITIZEN IN THE
STATE." 

IN REVERSING THE DISTRICT COURT WE SHOULD EMPHASIZE THAT THE EQUAL
PROTECTION CLAIM BELOW WAS BASED UPON AN ALLEGED INFIRMITY THAT
ATTACHES TO THE STATUTE ON ITS FACE.  AGREEING WITH APPELLEES'
CONTENTION THAT THE MULTI-MEMBER CONSTITUENCY FEATURE OF THE GEORGIA
SCHEME WAS PER SE BAD, THE DISTRICT COURT ENTERED THE DECREE ON SUMMARY
JUDGMENT.  WE TREAT THE QUESTION AS PRESENTED IN THAT CONTEXT, AND OUR
OPINION IS NOT TO BE UNDERSTOOD TO SAY THAT IN ALL INSTANCES OR UNDER
ALL CIRCUMSTANCES SUCH A SYSTEM AS GEORGIA HAS WILL COMPORT WITH THE
DICTATES OF THE EQUAL PROTECTION CLAUSE.  IT MIGHT WELL BE THAT,
DESIGNEDLY OR OTHERWISE, A MULTI-MEMBER CONSTITUENCY APPORTIONMENT
SCHEME, UNDER THE CIRCUMSTANCES OF A PARTICULAR CASE, WOULD OPERATE TO
MINIMIZE OR CANCEL OUT THE VOTING STRENGTH OF RACIAL OR POLITICAL
ELEMENTS OF THE VOTING POPULATION.  WHEN THIS IS DEMONSTRATED IT WILL
BE TIME ENOUGH TO CONSIDER WHETHER THE SYSTEM STILL PASSES
CONSTITUTIONAL MUSTER.  THIS QUESTION, HOWEVER, IS NOT PRESENTED BY THE
RECORD BEFORE US.  IT IS TRUE THAT APPELLEES ASSERTED IN ONE SHORT
PARAGRAPH OF THEIR BRIEF IN THIS COURT THAT THE COUNTY-WIDE ELECTION
METHOD WAS RESORTED TO BY GEORGIA IN ORDER TO MINIMIZE THE STRENGTH OF
RACIAL AND POLITICAL MINORITIES IN THE POPULOUS URBAN COUNTIES.  BUT
APPELLEES NEVER SERIOUSLY PRESSED THIS POINT BELOW AND OFFERED NO PROOF
TO SUPPORT IT, THE DISTRICT COURT DID NOT CONSIDER OR RULE ON ITS
MERITS, AND IN ORAL ARGUMENT HERE COUNSEL FOR APPELLEES STRESSED THAT
THEY DO NOT RELY ON THIS ARGUMENT.  THE RECORD THUS DOES NOT CONTAIN
ANY SUBSTANTIATION OF THE BALD ASSERTION IN APPELLEES' BRIEF.  SINCE,
UNDER THESE CIRCUMSTANCES, THIS ISSUE HAS "NOT BEEN FORMULATED TO BRING
IT INTO FOCUS, AND THE EVIDENCE HAS NOT BEEN OFFERED OR APPRAISED TO
DECIDE IT, OUR HOLDING HAS NO BEARING ON THAT WHOLLY SEPARATE
QUESTION."  WRIGHT V. ROCKEFELLER, 376 U.S. 52, 58.  REVERSED. 

FN1  GA. LAWS, SEPT.-OCT.  1962, EXTRA.  SESS., PP. 7-31; GA. CODE
ANN. SEC. 47-102 (CUM. SUPP. 1963).  SECTION 9, THE PROVISION IN
QUESTION HERE, PROVIDES IN PERTINENT PART THAT: 

"EACH SENATOR MUST BE A RESIDENT OF HIS OWN SENATORIAL DISTRICT AND
SHALL BE ELECTED BY THE VOTERS OF HIS OWN DISTRICT, EXCEPT THAT THE
SENATORS FROM THOSE SENATORIAL DISTRICTS CONSISTING OF LESS THAN ONE
COUNTY SHALL BE ELECTED BY ALL THE VOTERS OF THE COUNTY IN WHICH SUCH
SENATORIAL DISTRICT IS LOCATED." 

SHORTLY AFTER THE ENACTMENT OF THIS STATUTE, AND PRIOR TO THE
ELECTION OF SENATORS UNDER IT IN THE 1962 GENERAL ELECTIONS, AN ACTION
WAS BROUGHT IN A STATE COURT THAT CHALLENGED THE VALIDITY OF THE ABOVE
PROVISION UNDER THE GEORGIA CONSTITUTION.  THE STATE COURT HELD THAT
THE EXCEPTION IN THE 1962 STATUTE WAS UNCONSTITUTIONAL AS A MATTER OF
STATE LAW UNDER THE THEN-EXISTING GEORGIA CONSTITUTION.  FINCH V. GRAY,
NO. A 96441 (FULTON COUNTY SUPER.  CT., OCT. 30, 1962).  THE COURT
ENTERED A PERMANENT INJUNCTION REQUIRING THAT ELECTIONS IN FULTON AND
DEKALB COUNTIES BE HELD ON A DISTRICT-WIDE BASIS ONLY.  APPEAL WAS
TAKEN FROM THIS DECISION BUT WAS WITHDRAWN.  IN ITS OPINION THE GEORGIA
COURT NOTED THAT THE GEORGIA LEGISLATURE HAD AUTHORIZED THE SUBMISSION
OF A CONSTITUTIONAL AMENDMENT TO THE PEOPLE RATIFYING THE 1962
REAPPORTIONMENT STATUTE WITH ITS MULTI-DISTRICT-VOTING EXCEPTION AND
ALL ELECTIONS HELD UNDER THAT STATUTE.  (THE AMENDMENT WAS RATIFIED. 
SEE GA. CONST. ART. III, SEC. II, PAR. I; GA. CODE ANN. SEC. 2-1401
(CUM. SUPP. 1963).)  THE COURT STATED CONCERNING THE PROPOSED
AMENDMENT: 

"IT IS TO BE OBSERVED THAT BY PARAGRAPH (B) OF SAID PROPOSED
AMENDMENT TO THE CONSTITUTION, THE GENERAL ASSEMBLY SUBMITTED TO THE
PEOPLE THE QUESTION WHETHER THEY WOULD RATIFY THE REAPPORTIONMENT ACT
AND ELECTIONS THEREUNDER.  THIS PROPOSED AMENDMENT, OF COURSE, IS
PROSPECTIVE AND WILL BECOME A PART OF THE CONSTITUTION ONLY IF RATIFIED
BY THE VOTERS IN THE COMING GENERAL ELECTION. 

"THE EFFECT OF RATIFICATION BY THE PEOPLE OF THE REAPPORTIONMENT ACT
CONTAINING THE UNCONSTITUTIONAL EXCEPTION AFORESAID IS NOT NOW BEFORE
THE COURT FOR DETERMINATION.  SEE, HOWEVER, ON THIS SUBJECT:  WALKER V.
WILCOX CO., 95 APPS.  185; HAMMOND V. CLARK, 136 GA. 313; BAILEY V.
HOUSING AUTHORITY OF CITY OF BAINBRIDGE, 214 GA. 790; GRAYSON-ROBINSON
STORES, INC. V. ONEIDA, LTD., 209 GA. 613; 9 MERCER L. REV. 194, 195;
11 AM. JURIS., PAGE 832, SECTION 151.  THE IMPORTANCE HERE OF THE
AFORESAID PROPOSED CONSTITUTIONAL AMENDMENT IS SIMPLY FOR THE LIGHT IT
SHEDS UPON THE INTENTION OF THE GENERAL ASSEMBLY IN ENACTING THE
REAPPORTIONMENT STATUTE." 

THE QUESTION OF GEORGIA LAW RAISED BY THE DECISIONS CITED BY THE
COURT AS TO WHETHER A STATUTE DECLARED UNCONSTITUTIONAL UNDER GEORGIA
LAW MAY BE REVIVED BY A SUBSEQUENT CONSTITUTIONAL AMENDMENT WAS NOT
RAISED BELOW AND HAS NOT BEEN URGED HERE.  OF COURSE, THIS QUESTION OF
GEORGIA LAW IS NOT FOR US; OUR DECISION CONCERNS ONLY THE FEDERAL
CONSTITUTIONAL QUESTION PRESENTED AND ARGUED. 

FN2  THESE 33 SENATORIAL DISTRICTS EMBRACE 152 OF THE STATE'S 159
COUNTIES.  OF THE 33 DISTRICTS, ONLY TWO CONSIST OF SINGLE COUNTIES;
THE REMAINING 31 DISTRICTS ARE COMPRISED OF FROM TWO TO EIGHT COUNTIES
EACH. 

FN3  APPELLEES TAKE AS THEIR EXAMPLE SENATORIAL DISTRICT 34, IN WHICH
THERE ARE 82,195 OF FULTON COUNTY'S TOTAL OF 556,326 VOTERS.  THEY SAY,
AS A MATTER OF MATHEMATICS, THAT EVEN IF EVERY VOTER IN DISTRICT 34
VOTED FOR THE SAME CANDIDATE FROM THAT DISTRICT, LESS THAN 18% OF THE
VOTERS IN THE OTHER SIX DISTRICTS WITHIN THE COUNTY (I.E.,
APPROXIMATELY 85,000 OF THE REMAINING 474,131 VOTERS IN THE COUNTY)
COULD OUTVOTE THE UNANIMOUS CHOICE OF DISTRICT 34 VOTERS.  FIRST OF
ALL, THERE IS NO DEMONSTRATION THAT THIS IS LIKELY IN LIGHT OF THE
POLITICAL COMPOSITION OF DISTRICT 34 VIS-A-VIS THAT OF THE REST OF THE
COUNTY.  (IN FACT, THE 1962 ELECTIONS IN BOTH FULTON AND DEKALB
COUNTIES - WHEREIN ALL APPELLEES RESIDE - WERE CONDUCTED ON A DISTRICT
WIDE BASIS RATHER THAN A COUNTY-WIDE BASIS.  SEE NOTE 1, SUPRA.)  BUT
APART FROM THIS, APPELLEES' MATHEMATICS ARE MISLEADING, FOR NOT ONLY
WILL THE 18%, OR 85,000, OF THE REMAINING FULTON COUNTY VOTERS VOTE FOR
A SENATORIAL CANDIDATE RESIDENT IN DISTRICT 34, BUT ALSO THE REMAINING
389,131 VOTERS WILL PRESUMABLY PARTICIPATE IN HIS ELECTION.  ASSUMING
THESE ADDITIONAL VOTERS SPLIT THEIR VOTES ALMOST EVENLY BETWEEN TWO
CANDIDATES RUNNING FROM DISTRICT 34 - THE MOST "FAVORABLE" ASSUMPTION
FOR APPELLEES IN THAT IT WILL PRODUCE THE SMALLEST POSSIBLE PERCENTAGE
OF VOTERS WHO CAN OUTVOTE THE UNANIMOUS CHOICE OF THE VOTERS IN
DISTRICT 34 - THERE WILL BE APPROXIMATELY 280,000 VOTES AGAINST THE
CHOICE OF THE VOTERS IN THE 34TH DISTRICT, OR ABOUT 59% OF THE
REMAINING, OUT-OF-DISTRICT VOTE.  THIS IS A FAR CRY FROM THE 18% FIGURE
CALCULATED BY APPELLEES.  AND, EVEN IF, ON SOME ODD CHANCE, ONLY 85,000
VOTERS OUTSIDE OF DISTRICT 34 PARTICIPATE IN THE SELECTION OF A SENATOR
FROM THAT DISTRICT, AND ALL VOTE AGAINST THE UNANIMOUS CHOICE OF
DISTRICT 34 VOTERS, THE 18% FIGURE IS STILL MISLEADING.  FOR IN THIS
EVENTUALITY, THE RELEVANT VOTING CONSTITUENCY CONSISTS OF SOMETHING
UNDER 170,000 VOTERS, AND CLOSE TO 100% - NOT 18% - OF THE OUT-OF
DISTRICT VOTE HAS TO BE CAST AGAINST THE CHOICE OF THE IN-DISTRICT VOTE
IN ORDER TO OUTVOTE THE LATTER.  OUR DECISION SHOULD NOT BE READ,
HOWEVER, AS RESTING UPON THE MISLEADING ASPECTS OF APPELLEES'
CALCULATIONS. 

MR. JUSTICE HARLAN, CONCURRING. 

UNDER THE COMPULSION OF LAST TERM'S REAPPORTIONMENT DECISIONS I JOIN
THE OPINION AND JUDGMENT OF THE COURT, BUT WITH ONE RESERVATION.  THERE
IS LANGUAGE IN TODAY'S OPINION, UNNECESSARY TO THE COURT'S RESOLUTION
OF THIS CASE, THAT MIGHT BE TAKEN TO MEAN THAT THE CONSTITUTIONALITY OF
STATE LEGISLATIVE APPORTIONMENTS MUST, IN THE LAST ANALYSIS, ALWAYS BE
JUDGED IN TERMS OF SIMPLE ARITHMETIC.    AS THIS COURT EMBARKS ON THE
DIFFICULT BUSINESS OF PUTTING FLESH ON THE BONES OF REYNOLDS V. SIMS,
377 U.S. 533, AND ITS COMPANION DECISIONS OF LAST JUNE, I DESIRE
EXPRESSLY TO RESERVE FOR A CASE WHICH SQUARELY PRESENTS THE ISSUE, THE
QUESTION OF WHETHER THE PRINCIPLES ANNOUNCED IN THOSE DECISIONS REQUIRE
SUCH A STERILE APPROACH TO THE CONCEPT OF EQUAL PROTECTION IN THE
POLITICAL FIELD. 

MR. JUSTICE DOUGLAS, DISSENTING. 

GEORGIA - WHOSE POLITICAL HIERARCHY WAS LONG CONSTRUCTED ON THE
COUNTY-UNIT* BASIS - HAS MADE AN IMPORTANT CHANGE.  THE GEORGIA
CONSTITUTION WAS AMENDED TO READ: 

"THE SENATE SHALL CONSIST OF 54 MEMBERS.  THE GENERAL ASSEMBLY SHALL
HAVE AUTHORITY TO CREATE, REARRANGE AND CHANGE SENATORIAL DISTRICTS AND
TO PROVIDE FOR THE ELECTION OF SENATORS FROM EACH SENATORIAL DISTRICT,
OR FROM SEVERAL DISTRICTS EMBRACED WITHIN ONE COUNTY, IN SUCH MANNER AS
THE GENERAL ASSEMBLY MAY DEEM ADVISABLE."  ART. III, SEC. II, PAR. I. 

*SOUTH V. PETERS, 339 U.S. 276. 

THE "SENATORIAL DISTRICT" IS THUS MADE THE UNIT IN THE ELECTION OF
SENATORS.  BUT THE SENATORIAL REAPPORTIONMENT ACT PROVIDES IN RELEVANT
PART: 

"EACH SENATOR MUST BE A RESIDENT OF HIS OWN SENATORIAL DISTRICT AND
SHALL BE ELECTED BY THE VOTERS OF HIS OWN DISTRICT, EXCEPT THAT THE
SENATORS FROM THOSE SENATORIAL DISTRICTS CONSISTING OF LESS THAN ONE
COUNTY SHALL BE ELECTED BY ALL THE VOTERS OF THE COUNTY IN WHICH SUCH
SENATORIAL DISTRICT IS LOCATED." 

THUS "SENATORIAL DISTRICTS" ARE PUT INTO TWO CLASSIFICATIONS:  FIRST,
THOSE COMPRISING ONE OR MORE COUNTIES; SECOND, THOSE CONSISTING OF LESS
THAN ONE COUNTY.  THE "EQUAL PROTECTION" PROBLEM UNDER THE FOURTEENTH
AMENDMENT ARISES BY REASON OF THE FACT THAT ALL ELECTORS OF THE
DISTRICTS IN THE FIRST GROUP CHOOSE THEIR OWN SENATORS, WHILE THE
ELECTORS OF THE DISTRICTS IN THE SECOND GROUP MUST SHARE THE CHOICE OF
THEIR SENATORS WITH ALL THE OTHER ELECTORS IN THEIR COUNTY.  I AGREE
WITH THE DISTRICT COURT:  "  ...  VOTERS IN SOME SENATORIAL DISTRICTS
CANNOT BE TREATED DIFFERENTLY FROM VOTERS IN OTHER SENATORIAL
DISTRICTS.  THE STATUTE HERE IS NOTHING MORE THAN A CLASSIFICATION OF
VOTERS IN SENATORIAL DISTRICTS ON THE BASIS OF HOMESITE, TO THE END
THAT SOME ARE ALLOWED TO SELECT THEIR REPRESENTATIVES WHILE OTHERS ARE
NOT."  228 F. SUPP. 259, 263. 

THERE ARE SEVEN SENATORIAL DISTRICTS WITHIN FULTON COUNTY: 

DISTRICT 34 CONTAINING 82,195 VOTERS. 

DISTRICT 35 CONTAINING 82,888 VOTERS. 

DISTRICT 36 CONTAINING 79,023 VOTERS. 

DISTRICT 37 CONTAINING 78,540 VOTERS. 

DISTRICT 38 CONTAINING 78,953 VOTERS. 

DISTRICT 39 CONTAINING 79,713 VOTERS. 

DISTRICT 40 CONTAINING 74,834 VOTERS. 

THERE ARE THREE SENATORIAL DISTRICTS IN DE KALB COUNTY: 

DISTRICT 41 CONTAINING 75,117 VOTERS. 

DISTRICT 42 CONTAINING 95,032 VOTERS. 

DISTRICT 43 CONTAINING 86,633 VOTERS. 

AS APPELLEES POINT OUT, EVEN IF A CANDIDATE FOR ONE OF THOSE
DISTRICTS OBTAINED ALL OF THE VOTES IN THAT DISTRICT, HE COULD STILL BE
DEFEATED BY THE FOREIGN VOTE, WHILE HE WOULD OF COURSE BE ELECTED IF HE
WERE RUNNING IN A DISTRICT IN THE FIRST GROUP.  I HAVE NO IDEA HOW THIS
WEIGHTED VOTING MIGHT PRODUCE PREJUDICE RACE-WISE, RELIGION-WISE,
POLITICS-WISE.  BUT TO ALLOW SOME CANDIDATES TO BE CHOSEN BY THE
ELECTORS IN THEIR DISTRICTS AND OTHERS TO BE DEFEATED BY THE VOTERS OF
FOREIGN DISTRICTS IS IN MY VIEW AN "INVIDIOUS DISCRIMINATION" - THE
TEST OF UNEQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT.  BAKER V.
CARR, 369 U.S. 186, 244.  I HAD ASSUMED WE HAD SETTLED THIS QUESTION IN
GRAY V. SANDERS, 372 U.S. 368, 379, WHERE WE SAID:  "ONCE THE
GEOGRAPHICAL UNIT FOR WHICH A REPRESENTATIVE IS TO BE CHOSEN IS
DESIGNATED, ALL WHO PARTICIPATE IN THE ELECTION ARE TO HAVE AN EQUAL
VOTE - WHATEVER THEIR RACE, WHATEVER THEIR SEX, WHATEVER THEIR
OCCUPATION, WHATEVER THEIR INCOME, AND WHEREVER THEIR HOME MAY BE IN
THAT GEOGRAPHICAL UNIT.  THIS IS REQUIRED BY THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT." 
..END :





HENRY V. MISSISSIPPI 379 U.S. 443 


NO. 6.  ARGUED OCTOBER 13, 1964.  - DECIDED JANUARY 18, 1965.  - 154 SO.
2D 289, REVERSED AND REMANDED. 


THE MISSISSIPPI SUPREME COURT, REVIEWING PETITIONER'S APPEAL FROM A
CONVICTION FOR DISTURBING THE PEACE, FIRST FILED AN OPINION WHICH
REVERSED THE CONVICTION AND REMANDED FOR A NEW TRIAL.  THE COURT HELD
THAT PETITIONER'S WIFE'S CONSENT TO A SEARCH OF HIS AUTOMOBILE DID NOT
WAIVE HIS RIGHTS AND, IN THE BELIEF THAT PETITIONER HAD OUT-OF-STATE
COUNSEL UNFAMILIAR WITH LOCAL PRACTICE, REVERSED IN SPITE OF
PETITIONER'S FAILURE TO COMPLY WITH THE STATE REQUIREMENT OF
CONTEMPORANEOUS OBJECTION TO THE INTRODUCTION OF ILLEGAL EVIDENCE.  THE
COURT NOTED THAT PETITIONER MOVED FOR A DIRECTED VERDICT AT THE CLOSE
OF THE STATE'S CASE, ASSIGNING AS ONE GROUND THE USE OF THE ILLEGAL
EVIDENCE.  AFTER THE STATE FILED A SUGGESTION OF ERROR, POINTING OUT
THAT PETITIONER WAS REPRESENTED BY LOCAL AS WELL AS OUT-OF-STATE
COUNSEL, THE COURT SUBSTITUTED ANOTHER OPINION, AFFIRMING THE
CONVICTION AND HOLDING THAT MISTAKES OF COUNSEL, EVEN IF HONEST, ARE
BINDING ON THE CLIENT.  HELD:  THE QUESTION WHETHER THE NONFEDERAL
PROCEDURAL GROUND (THE CONTEMPORANEOUS-OBJECTION REQUIREMENT) IS
ADEQUATE TO BAR REVIEW - THAT IS, WHETHER ITS IMPOSITION IN THIS CASE
SERVES A LEGITIMATE STATE INTEREST - IS NOT DECIDED, FOR THE RECORD
INDICATES, BUT IS INSUFFICIENT TO ESTABLISH, THAT PETITIONER,
PERSONALLY OR THROUGH COUNSEL, MAY HAVE KNOWINGLY FORGONE HIS
OPPORTUNITY TO RAISE HIS FEDERAL CLAIMS.  FAY V. NOIA, 372 U.S. 391,
439.  THE INTERESTS OF SOUND JUDICIAL ADMINISTRATION CALL FOR A REMAND
TO PERMIT THE STATE TO ESTABLISH WHETHER OR NOT THERE WAS A WAIVER. 
THIS MAY AVOID THE NECESSITY FOR A DECISION BY THIS COURT ON THE
ADEQUACY OF THE STATE PROCEDURAL GROUND, AND IT PERMITS THE STATE TO
DETERMINE THE WAIVER QUESTION, WHICH WOULD OTHERWISE BE OPEN ON FEDERAL
HABEAS CORPUS, EVEN IF THE STATE GROUND WERE ADEQUATE.  PP. 449-453. 

HENRY V. MISSISSIPPI. 

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF DISTURBING THE PEACE, BY INDECENT
PROPOSALS TO AND OFFENSIVE CONTACT WITH AN 18-YEAR-OLD HITCHHIKER TO
WHOM HE IS SAID TO HAVE GIVEN A RIDE IN HIS CAR.  THE TRIAL JUDGE
CHARGED THE JURY THAT "YOU CANNOT FIND THE DEFENDANT GUILTY ON THE
UNSUPPORTED AND UNCORROBORATED TESTIMONY OF THE COMPLAINANT ALONE." 
THE PETITIONER'S FEDERAL CLAIM DERIVES FROM THE ADMISSION OF A POLICE
OFFICER'S TESTIMONY, INTRODUCED TO CORROBORATE THE HITCHHIKER'S
TESTIMONY.  THE MISSISSIPPI SUPREME COURT HELD THAT THE OFFICER'S
TESTIMONY WAS IMPROPERLY ADMITTED AS THE FRUIT OF "AN UNLAWFUL SEARCH
AND WAS IN VIOLATION OF SEC. 23, MISS.  CONSTITUTION 1890."  154 SO. 2D
289, 294.  (FN1)  THE TAINTED EVIDENCE TENDED TO SUBSTANTIATE THE
HITCHHIKER'S TESTIMONY BY SHOWING ITS ACCURACY IN A DETAIL WHICH COULD
HAVE BEEN SEEN ONLY BY ONE INSIDE THE CAR.  IN PARTICULAR, IT SHOWED
THAT THE RIGHT-HAND ASHTRAY OF THE CAR IN WHICH THE INCIDENT TOOK PLACE
WAS FULL OF DENTYNE CHEWING GUM WRAPPERS, AND THAT THE CIGARETTE
LIGHTER DID NOT FUNCTION.  THE POLICE OFFICER TESTIFIED THAT AFTER
PETITIONER'S ARREST HE HAD RETURNED TO THE PETITIONER'S HOME AND
OBTAINED THE PERMISSION OF PETITIONER'S WIFE TO LOOK IN PETITIONER'S
CAR.  THE WIFE PROVIDED THE OFFICER WITH THE KEYS, WITH WHICH THE
OFFICER OPENED THE CAR.  HE TESTIFIED THAT HE TRIED THE LIGHTER AND IT
WOULD NOT WORK, AND ALSO THAT THE ASHTRAY "WAS FILLED WITH RED DENTYNE
CHEWING GUM WRAPPERS." 

THE MISSISSIPPI SUPREME COURT FIRST FILED AN OPINION WHICH REVERSED
PETITIONER'S CONVICTION AND REMANDED FOR A NEW TRIAL.  THE COURT HELD
THAT THE WIFE'S CONSENT TO THE SEARCH OF THE CAR DID NOT WAIVE
PETITIONER'S CONSTITUTIONAL RIGHTS, AND NOTED THAT THE "TESTIMONY OF
THE STATE'S WITNESS  ... IS, IN EFFECT, UNCORROBORATED WITHOUT THE
EVIDENCE DISCLOSED BY THE INSPECTION OF DEFENDANT'S AUTOMOBILE."  154
SO. 2D, AT 296 (ADVANCE SHEET).  (FN2)  ACTING IN THE BELIEF THAT
PETITIONER HAD BEEN REPRESENTED BY NONRESIDENT COUNSEL UNFAMILIAR WITH
LOCAL PROCEDURE, THE COURT REVERSED DESPITE PETITIONER'S FAILURE TO
COMPLY WITH THE MISSISSIPPI REQUIREMENT THAT AN OBJECTION TO ILLEGAL
EVIDENCE BE MADE AT THE TIME IT IS INTRODUCED.  THE COURT NOTED THAT
PETITIONER HAD MOVED FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S
CASE, ASSIGNING AS ONE GROUND THE USE OF ILLEGALLY OBTAINED EVIDENCE;
IT DID NOT MENTION PETITIONER'S RENEWAL OF HIS MOTION AT THE CLOSE OF
ALL EVIDENCE. 

AFTER THE FIRST OPINION WAS HANDED DOWN, THE STATE FILED A SUGGESTION
OF ERROR, POINTING OUT THAT PETITIONER WAS IN FACT REPRESENTED AT HIS
TRIAL BY COMPETENT LOCAL COUNSEL, AS WELL AS BY OUT-OF-STATE LAWYERS. 
THEREUPON THE MISSISSIPPI SUPREME COURT WITHDREW ITS FIRST OPINION AND
FILED A NEW OPINION IN SUPPORT OF A JUDGMENT AFFIRMING PETITIONER'S
CONVICTION.  THE NEW OPINION IS IDENTICAL WITH THE FIRST SAVE FOR THE
RESULT, THE STATEMENT THAT PETITIONER HAD LOCAL COUNSEL, AND THE
DISCUSSION OF THE EFFECT OF FAILURE FOR WHATEVER REASON TO MAKE TIMELY
OBJECTION TO THE EVIDENCE.  "IN SUCH CIRCUMSTANCES, EVEN IF HONEST
MISTAKES OF COUNSEL IN RESPECT TO POLICY OR STRATEGY OR OTHERWISE
OCCUR, THEY ARE BINDING UPON THE CLIENT AS A PART OF THE HAZARDS OF
COURTROOM BATTLE."  154 SO. 2D, AT 296 (BOUND VOLUME).  MOREOVER, THE
COURT REASONED, PETITIONER'S CROSS-EXAMINATION OF THE STATE'S WITNESS
BEFORE THE INITIAL MOTION FOR DIRECTED VERDICT, AND INTRODUCTION OF
OTHER EVIDENCE OF THE CAR'S INTERIOR APPEARANCE AFTERWARD, "CURED" THE
ORIGINAL ERROR AND ESTOPPED PETITIONER FROM COMPLAINING OF THE TAINTED
EVIDENCE.  WE GRANTED CERTIORARI, 376 U.S. 904.  WE VACATE THE JUDGMENT
OF CONVICTION AND REMAND FOR A HEARING ON THE QUESTION WHETHER THE
PETITIONER IS TO BE DEEMED TO HAVE KNOWINGLY WAIVED DECISION OF HIS
FEDERAL CLAIM WHEN TIMELY OBJECTION WAS NOT MADE TO THE ADMISSION OF
THE ILLEGALLY SEIZED EVIDENCE. 

IT IS, OF COURSE, A FAMILIAR PRINCIPLE THAT THIS COURT WILL DECLINE
TO REVIEW STATE COURT JUDGMENTS WHICH REST ON INDEPENDENT AND ADEQUATE
STATE GROUNDS, EVEN WHERE THOSE JUDGMENTS ALSO DECIDE FEDERAL
QUESTIONS.  THE PRINCIPLE APPLIES NOT ONLY IN CASES INVOLVING STATE
SUBSTANTIVE GROUNDS, MURDOCK V. CITY OF MEMPHIS, 20 WALL.  590, BUT
ALSO IN CASES INVOLVING STATE PROCEDURAL GROUNDS.  COMPARE HERB V.
PITCAIRN, 324 U.S. 117, 125-126, WITH DAVIS V. WECHSLER, 263 U.S. 22. 
BUT IT IS IMPORTANT TO DISTINGUISH BETWEEN STATE SUBSTANTIVE GROUNDS
AND STATE PROCEDURAL GROUNDS.  WHERE THE GROUND INVOLVED IS
SUBSTANTIVE, THE DETERMINATION OF THE FEDERAL QUESTION CANNOT AFFECT
THE DISPOSITION IF THE STATE COURT DECISION ON THE STATE LAW QUESTION
IS ALLOWED TO STAND.  UNDER THE VIEW TAKEN IN MURDOCK OF THE STATUTES
CONFERRING APPELLATE JURISDICTION ON THIS COURT, WE HAVE NO POWER TO
REVISE JUDGMENTS ON QUESTIONS OF STATE LAW.  THUS, THE ADEQUATE
NONFEDERAL GROUND DOCTRINE IS NECESSARY TO AVOID ADVISORY OPINIONS. 

THESE JUSTIFICATIONS HAVE NO APPLICATION WHERE THE STATE GROUND IS
PURELY PROCEDURAL.  A PROCEDURAL DEFAULT WHICH IS HELD TO BAR CHALLENGE
TO A CONVICTION IN STATE COURTS, EVEN ON FEDERAL CONSTITUTIONAL
GROUNDS, PREVENTS IMPLEMENTATION OF THE FEDERAL RIGHT.  ACCORDINGLY, WE
HAVE CONSISTENTLY HELD THAT THE QUESTION OF WHEN AND HOW DEFAULTS IN
COMPLIANCE WITH STATE PROCEDURAL RULES CAN PRECLUDE OUR CONSIDERATION
OF A FEDERAL QUESTION IS ITSELF A FEDERAL QUESTION.  CF. LOVELL V. CITY
OF GRIFFIN, 303 U.S. 444, 450.  AS MR. JUSTICE HOLMES SAID: 

"WHEN AS HERE THERE IS A PLAIN ASSERTION OF FEDERAL RIGHTS IN THE
LOWER COURT, LOCAL RULES AS TO HOW FAR IT SHALL BE REVIEWED ON APPEAL
DO NOT NECESSARILY PREVAIL  ...  .  WHETHER THE RIGHT WAS DENIED OR NOT
GIVEN DUE RECOGNITION BY THE STATE COURT  ...  IS A QUESTION AS TO
WHICH THE PLAINTIFFS ARE ENTITLED TO INVOKE OUR JUDGMENT."  LOVE V.
GRIFFITH, 266 U.S. 32, 33-34. 

ONLY LAST TERM, WE REAFFIRMED THIS PRINCIPLE, HOLDING THAT A STATE
APPELLATE COURT'S REFUSAL, ON THE GROUND OF MOOTNESS, TO CONSIDER A
FEDERAL CLAIM, DID NOT PRECLUDE OUR INDEPENDENT DETERMINATION OF THE
QUESTION OF MOOTNESS; THAT IS ITSELF A QUESTION OF FEDERAL LAW WHICH
THIS COURT MUST ULTIMATELY DECIDE.  LINER V. JAFCO, INC., 375 U.S.
301.  THESE CASES SETTLE THE PROPOSITION THAT A LITIGANT'S PROCEDURAL
DEFAULTS IN STATE PROCEEDINGS DO NOT PREVENT VINDICATION OF HIS FEDERAL
RIGHTS UNLESS THE STATE'S INSISTENCE ON COMPLIANCE WITH ITS PROCEDURAL
RULE SERVES A LEGITIMATE STATE INTEREST.  IN EVERY CASE WE MUST INQUIRE
WHETHER THE ENFORCEMENT OF A PROCEDURAL FORFEITURE SERVES SUCH A STATE
INTEREST.  IF IT DOES NOT, THE STATE PROCEDURAL RULE OUGHT NOT BE
PERMITTED TO BAR VINDICATION OF IMPORTANT FEDERAL RIGHTS.  (FN3) 

THE MISSISSIPPI RULE REQUIRING CONTEMPORANEOUS OBJECTION TO THE
INTRODUCTION OF ILLEGAL EVIDENCE CLEARLY DOES SERVE A LEGITIMATE STATE
INTEREST.  BY IMMEDIATELY APPRISING THE TRIAL JUDGE OF THE OBJECTION,
COUNSEL GIVES THE COURT THE OPPORTUNITY TO CONDUCT THE TRIAL WITHOUT
USING THE TAINTED EVIDENCE.  IF THE OBJECTION IS WELL TAKEN THE FRUITS
OF THE ILLEGAL SEARCH MAY BE EXCLUDED FROM JURY CONSIDERATION, AND A
REVERSAL AND NEW TRIAL AVOIDED.  BUT ON THE RECORD BEFORE US IT APPEARS
THAT THIS PURPOSE OF THE CONTEMPORANEOUS-OBJECTION RULE MAY HAVE BEEN
SUBSTANTIALLY SERVED BY PETITIONER'S MOTION AT THE CLOSE OF THE STATE'S
EVIDENCE ASKING FOR A DIRECTED VERDICT BECAUSE OF THE ERRONEOUS
ADMISSION OF THE OFFICER'S TESTIMONY.  FOR AT THIS STAGE THE TRIAL
JUDGE COULD HAVE CALLED FOR ELABORATION OF THE SEARCH AND SEIZURE
ARGUMENT AND, IF PERSUADED, COULD HAVE STRICKEN THE TAINTED TESTIMONY
OR HAVE TAKEN OTHER APPROPRIATE CORRECTIVE ACTION.  FOR EXAMPLE, IF
THERE WAS SUFFICIENT COMPETENT EVIDENCE WITHOUT THIS TESTIMONY TO GO TO
THE JURY, THE MOTION FOR A DIRECTED VERDICT MIGHT HAVE BEEN DENIED, AND
THE CASE SUBMITTED TO THE JURY WITH A PROPERLY WORDED APPROPRIATE
CAUTIONARY INSTRUCTION.  (FN4)  IN THESE CIRCUMSTANCES, THE DELAY UNTIL
THE CLOSE OF THE STATE'S CASE IN PRESENTING THE OBJECTION CANNOT BE
SAID TO HAVE FRUSTRATED THE STATE'S INTEREST IN AVOIDING DELAY AND
WASTE OF TIME IN THE DISPOSITION OF THE CASE.  IF THIS IS SO, AND
ENFORCEMENT OF THE RULE HERE WOULD SERVE NO SUBSTANTIAL STATE INTEREST,
THEN SETTLED PRINCIPLES WOULD PRECLUDE TREATING THE STATE GROUND AS
ADEQUATE; GIVING EFFECT TO THE CONTEMPORANEOUS-OBJECTION RULE FOR ITS
OWN SAKE "WOULD BE TO FORCE RESORT TO AN ARID RITUAL OF MEANINGLESS
FORM."  STAUB V. CITY OF BAXLEY, 355 U.S. 313, 320; SEE ALSO WRIGHT V.
GEORGIA, 373 U.S. 284, 289-291.  (FN5) 

WE HAVE NO REASON, HOWEVER, TO DECIDE THAT QUESTION NOW OR TO EXPRESS
ANY VIEW ON THE MERITS OF PETITIONER'S SUBSTANTIAL CONSTITUTIONAL
CLAIM.  (FN6)  FOR EVEN ASSUMING THAT THE MAKING OF THE OBJECTION ON
THE MOTION FOR A DIRECTED VERDICT SATISFIED THE STATE INTEREST SERVED
BY THE CONTEMPORANEOUS-OBJECTION RULE, THE RECORD SUGGESTS A
POSSIBILITY THAT PETITIONER'S COUNSEL DELIBERATELY BYPASSED THE
OPPORTUNITY TO MAKE TIMELY OBJECTION IN THE STATE COURT, AND THUS THAT
THE PETITIONER SHOULD BE DEEMED TO HAVE FORFEITED HIS STATE COURT
REMEDIES.  ALTHOUGH THE MISSISSIPPI SUPREME COURT CHARACTERIZED THE
FAILURE TO OBJECT AS AN "HONEST MISTAKE," 154 SO. 2D, AT 296 (BOUND
VOLUME), THE STATE, IN THE BRIEF IN SUPPORT OF ITS SUGGESTION OF ERROR
IN THE SUPREME COURT OF MISSISSIPPI ASSERTED ITS WILLINGNESS TO AGREE
THAT ITS SUGGESTION OF ERROR "SHOULD NOT BE SUSTAINED IF EITHER OF THE
THREE COUNSEL FOR PETITIONER PARTICIPATING IN THIS TRIAL WOULD RESPOND
HERETO WITH AN AFFIDAVIT THAT HE DID NOT KNOW THAT AT SOME POINT IN A
TRIAL IN CRIMINAL COURT IN MISSISSIPPI THAT AN OBJECTION TO SUCH
TESTIMONY MUST HAVE BEEN MADE."  THE SECOND OPINION OF THE MISSISSIPPI
SUPREME COURT DOES NOT REFER TO THE STATE'S PROPOSAL AND THUS IT
APPEARS THAT THE COURT DID NOT BELIEVE THAT THE ISSUE WAS PROPERLY
PRESENTED FOR DECISION.  ANOTHER INDICATION OF POSSIBLE WAIVER APPEARS
IN AN AFFIDAVIT ATTACHED TO THE STATE'S BRIEF IN THIS COURT; THERE, THE
RESPONDENT ASSERTED THAT ONE OF PETITIONER'S LAWYERS STOOD UP AS IF TO
OBJECT TO THE OFFICER'S TAINTED TESTIMONY, AND WAS PULLED DOWN BY CO
COUNSEL.  AGAIN, THIS FURNISHES AN INSUFFICIENT BASIS FOR DECISION OF
THE WAIVER QUESTIONS AT THIS TIME.  BUT, TOGETHER WITH THE PROPOSAL IN
THE SUGGESTION OF ERROR, IT IS ENOUGH TO JUSTIFY AN EVIDENTIARY HEARING
TO DETERMINE WHETHER PETITIONER "AFTER CONSULTATION WITH COMPETENT
COUNSEL OR OTHERWISE, UNDERSTANDINGLY AND KNOWINGLY FOREWENT THE
PRIVILEGE OF SEEKING TO VINDICATE HIS FEDERAL CLAIMS IN THE STATE
COURTS, WHETHER FOR STRATEGIC, TACTICAL, OR ANY OTHER REASONS THAT CAN
FAIRLY BE DESCRIBED AS THE DELIBERATE BY-PASSING OF STATE PROCEDURES
...  ."  FAY V. NOIA, 372 U.S. 391, 439. 

THE EVIDENCE SUGGESTS REASONS FOR A STRATEGIC MOVE.  BOTH THE
COMPLAINING WITNESS AND THE POLICE OFFICER TESTIFIED THAT THE CIGARETTE
LIGHTER IN THE CAR DID NOT WORK.  AFTER DENIAL OF ITS MOTION FOR A
DIRECTED VERDICT THE DEFENSE CALLED A MECHANIC WHO HAD REPAIRED THE
CIGARETTE LIGHTER.  THE DEFENSE MIGHT HAVE PLANNED TO ALLOW THE
COMPLAINING WITNESS AND THE OFFICER TO TESTIFY THAT THE CIGARETTE
LIGHTER DID NOT WORK, AND THEN, IF THE MOTION FOR DIRECTED VERDICT WERE
NOT GRANTED, TO DISCREDIT BOTH WITNESSES BY SHOWING THAT IT DID WORK,
THEREBY PERSUADING THE JURY TO ACQUIT.  OR, BY DELAYING OBJECTION TO
THE EVIDENCE, THE DEFENSE MIGHT HAVE HOPED TO INVITE ERROR AND LAY THE
FOUNDATION FOR A SUBSEQUENT REVERSAL.  IF EITHER REASON MOTIVATED THE
ACTION OF PETITIONER'S COUNSEL, AND THEIR PLANS BACKFIRED, COUNSEL'S
DELIBERATE CHOICE OF THE STRATEGY WOULD AMOUNT TO A WAIVER BINDING ON
PETITIONER AND WOULD PRECLUDE HIM FROM A DECISION ON THE MERITS OF HIS
FEDERAL CLAIM EITHER IN THE STATE COURTS OR HERE.  (FN7)  ALTHOUGH
TRIAL STRATEGY ADOPTED BY COUNSEL WITHOUT PRIOR CONSULTATION WITH AN
ACCUSED WILL NOT, WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL, PRECLUDE THE
ACCUSED FROM ASSERTING CONSTITUTIONAL CLAIMS, SEE WHITUS V. BALKCOM,
333 F.2D 496 (C.A. 5TH CIR. 1964), WE THINK THAT THE DELIBERATE
BYPASSING BY COUNSEL OF THE CONTEMPORANEOUS-OBJECTION RULE AS A PART OF
TRIAL STRATEGY WOULD HAVE THAT EFFECT IN THIS CASE. 

ONLY EVIDENCE EXTRINSIC TO THE RECORD BEFORE US CAN ESTABLISH THE
FACT OF WAIVER, AND THE STATE SHOULD HAVE AN OPPORTUNITY TO ESTABLISH
THAT FACT.  IN COMPARABLE CASES ARISING IN FEDERAL COURTS WE HAVE
VACATED THE JUDGMENTS OF CONVICTION AND REMANDED FOR A HEARING,
SUSPENDING THE DETERMINATION OF THE VALIDITY OF THE CONVICTION PENDING
THE OUTCOME OF THE HEARING.  SEE UNITED STATES V. SHOTWELL MFG. CO.,
355 U.S. 233; CAMPBELL V. UNITED STATES, 365 U.S. 85.  WE RECENTLY
ADOPTED A SIMILAR PROCEDURE TO DETERMINE AN ISSUE ESSENTIAL TO THE
FAIRNESS OF A STATE CONVICTION.  SEE JACKSON V. DENNO, 378 U.S. 368,
393-394; BOLES V. STEVENSON, 379 U.S. 43.  WE THINK A SIMILAR COURSE IS
PARTICULARLY DESIRABLE HERE, SINCE A DISMISSAL ON THE BASIS OF AN
ADEQUATE STATE GROUND WOULD NOT END THIS CASE; PETITIONER MIGHT STILL
PURSUE VINDICATION OF HIS FEDERAL CLAIM IN A FEDERAL HABEAS CORPUS
PROCEEDING IN WHICH THE PROCEDURAL DEFAULT WILL NOT ALONE PRECLUDE
CONSIDERATION OF HIS CLAIM, AT LEAST UNLESS IT IS SHOWN THAT PETITIONER
DELIBERATELY BYPASSED THE ORDERLY PROCEDURE OF THE STATE COURTS.  FAY
V. NOIA, SUPRA, AT 438.    OF COURSE, IN SO REMANDING WE NEITHER HOLD
NOR EVEN REMOTELY IMPLY THAT THE STATE MUST FORGO INSISTENCE ON ITS
PROCEDURAL REQUIREMENTS IF IT FINDS NO WAIVER.  SUCH A FINDING WOULD
ONLY MEAN THAT PETITIONER COULD HAVE A FEDERAL COURT APPLY SETTLED
PRINCIPLES TO TEST THE EFFECTIVENESS OF THE PROCEDURAL DEFAULT TO
FORECLOSE CONSIDERATION OF HIS CONSTITUTIONAL CLAIM.  IF IT FINDS THE
PROCEDURAL DEFAULT INEFFECTIVE, THE FEDERAL COURT WILL ITSELF DECIDE
THE MERITS OF HIS FEDERAL CLAIM, AT LEAST SO LONG AS THE STATE COURT
DOES NOT WISH TO DO SO.  BY PERMITTING THE MISSISSIPPI COURTS TO MAKE
AN INITIAL DETERMINATION OF WAIVER, WE SERVE THE CAUSES OF EFFICIENT
ADMINISTRATION OF CRIMINAL JUSTICE, AND OF HARMONIOUS FEDERAL-STATE
JUDICIAL RELATIONS.  SUCH A DISPOSITION MAY MAKE UNNECESSARY THE
PROCESSING OF THE CASE THROUGH FEDERAL COURTS ALREADY LABORING UNDER
CONGESTED DOCKETS, (FN8) OR IT MAY MAKE UNNECESSARY THE RELITIGATION IN
A FEDERAL FORUM OF CERTAIN ISSUES.  SEE TOWNSEND V. SAIN, 372 U.S. 293,
312-319.  THE COURT IS NOT BLIND TO THE FACT THAT THE FEDERAL HABEAS
CORPUS JURISDICTION HAS BEEN A SOURCE OF IRRITATION BETWEEN THE FEDERAL
AND STATE JUDICIARIES.  IT HAS BEEN SUGGESTED THAT THIS FRICTION MIGHT
BE AMELIORATED IF THE STATES WOULD LOOK UPON OUR DECISIONS IN FAY V.
NOIA, SUPRA, AND TOWNSEND V. SAIN, SUPRA, AS AFFORDING THEM AN
OPPORTUNITY TO PROVIDE STATE PROCEDURES, DIRECT OR COLLATERAL, FOR A
FULL AIRING OF FEDERAL CLAIMS.  (FN9)  THAT PROSPECT IS BETTER SERVED
BY A REMAND THAN BY RELEGATING PETITIONER TO HIS FEDERAL HABEAS
REMEDY.  THEREFORE, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO
THE MISSISSIPPI SUPREME COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE MISSISSIPPI SUPREME COURT WROTE TWO OPINIONS.  THE FIRST IS
REPORTED IN THE JULY 11, 1963, ISSUE OF THE SOUTHERN REPORTER ADVANCE
SHEETS, 154 SO. 2D 289.  THIS WAS WITHDRAWN WHEN THE COURT FILED THE
SECOND OPINION, WHICH APPEARS AT THE SAME PAGE IN THE BOUND VOLUME OF
THE SOUTHERN REPORTER.  CITATIONS HEREINAFTER WILL DESIGNATE THE BOUND
VOLUME OR THE ADVANCE SHEET IF THE CITED MATERIAL APPEARS IN ONLY ONE
OPINION.  THE MATERIAL REFERRED TO AT THIS POINT IN THE TEXT APPEARS IN
BOTH OPINIONS. 

FN2  THE COMPLAINING WITNESS ALSO TESTIFIED AS TO THE LAST FOUR
DIGITS OF PETITIONER'S LICENSE PLATE, AND TO THE FACT THAT THE FIRST
THREE DIGITS WERE OBSCURED; THESE FACTS WERE INDEPENDENTLY
SUBSTANTIATED.  SINCE THE LICENSE PLATE COULD BE SEEN FROM OUTSIDE THE
CAR, AND PETITIONER DENIED THAT THE COMPLAINING WITNESS HAD EVER BEEN
IN HIS CAR, THE MISSISSIPPI SUPREME COURT APPARENTLY ACCEPTED THE
OFFICER'S TESTIMONY CONCERNING THE DENTYNE WRAPPERS AND CIGARETTE
LIGHTER AS THE ONLY COGENT CORROBORATIVE EVIDENCE. 

FN3  THIS WILL NOT LEAD INEVITABLY TO A PLETHORA OF ATTACKS ON THE
APPLICATION OF STATE PROCEDURAL RULES; WHERE THE STATE RULE IS A
REASONABLE ONE AND CLEARLY ANNOUNCED TO DEFENDANT AND COUNSEL,
APPLICATION OF THE WAIVER DOCTRINE WILL YIELD THE SAME RESULT AS THAT
OF THE ADEQUATE NONFEDERAL GROUND DOCTRINE IN THE VAST MAJORITY OF
CASES. 

FN4  THE VIEW OF THE MISSISSIPPI COURT IN ITS FIRST OPINION SEEMS TO
HAVE BEEN THAT THERE WAS INSUFFICIENT EVIDENCE APART FROM THE TAINTED
TESTIMONY TO SUPPORT THE CONVICTION.  HENCE, APPROPRIATE CORRECTIVE
ACTION AS A MATTER OF STATE LAW MIGHT HAVE INCLUDED GRANTING
PETITIONER'S MOTION.  WE HAVE NOT OVERLOOKED THE FACT THAT THE FIRST
OPINION REMANDED FOR A NEW TRIAL, ALTHOUGH THE USUAL PRACTICE OF THE
MISSISSIPPI SUPREME COURT WHERE A MOTION FOR DIRECTED VERDICT, RENEWED
AT THE CLOSE OF ALL THE EVIDENCE, IS IMPROPERLY DENIED IS TO DISMISS
THE PROSECUTION.  SEE LEWIS V. STATE, 198 MISS.  767, 23 SO. 2D 401;
ADAMS V. STATE, 202 MISS.  68, 30 SO. 2D 593; SMITH V. STATE, 205
MISS.  170, 38 SO. 2D 698.  THE OPINION OFFERS NO EXPLANATION OF THE
MANDATE; THE ANSWER IS PROBABLY THAT THE COURT REFERS ONLY TO THE
MOTION AT THE END OF THE STATE'S CASE, 154 SO. 2D, AT 294, 295, AND
OVERLOOKS THE FACT THAT IT WAS RENEWED AT THE CLOSE OF ALL THE
EVIDENCE, JUST AS IT OVERLOOKS THE PRESENCE OF LOCAL COUNSEL.  IF THE
MOTION WERE NOT RENEWED, THE APPELLATE COURT COULD NOT DISMISS THE
PROSECUTION.  SEE SMITH V. STATE, SUPRA. 

FN5  WE DO NOT RELY ON THE PRINCIPLE THAT OUR REVIEW IS NOT PRECLUDED
WHEN THE STATE COURT HAS FAILED TO EXERCISE DISCRETION TO DISREGARD THE
PROCEDURAL DEFAULT.  SEE WILLIAMS V. GEORGIA, 349 U.S. 375.  WE READ
THE SECOND MISSISSIPPI SUPREME COURT OPINION AS HOLDING THAT THERE IS
NO SUCH DISCRETION WHERE IT APPEARS THAT PETITIONER WAS REPRESENTED BY
COMPETENT LOCAL COUNSEL FAMILIAR WITH LOCAL PROCEDURE. 

FN6  THUS, CONSISTENTLY WITH THE POLICY OF AVOIDING PREMATURE
DECISION ON THE MERITS OF CONSTITUTIONAL QUESTIONS, WE INTIMATE NO VIEW
WHETHER THE PERTINENT CONTROLLING FEDERAL STANDARD GOVERNING THE
LEGALITY OF A SEARCH OR SEIZURE, SEE KER V. CALIFORNIA, 374 U.S. 23, IS
THE SAME AS THE MISSISSIPPI STANDARD APPLIED HERE, WHICH HOLDS THAT THE
WIFE'S CONSENT CANNOT VALIDATE A SEARCH AS AGAINST HER HUSBAND.  NOR DO
WE RULE AT THIS TIME ON THE QUESTION WHETHER PETITIONER'S CROSS
EXAMINATION OF THE OFFICER, BEFORE RAISING ANY OBJECTION, "CURED" THE
EFFECT OF THE INADMISSIBLE TESTIMONY; THIS COURT HAS NOT YET RULED ON
THE ROLE OF HARMLESS ERROR IN SEARCH AND SEIZURE CASES.  CF. JACKSON V.
DENNO, 378 U.S. 368, 376.  OF COURSE, NOTHING OCCURRING AFTER THE
JUDGE'S REFUSAL TO HONOR PETITIONER'S OBJECTION COULD HAVE THIS
CURATIVE EFFECT. 

FN7  THE STATE COURT'S HOLDING THAT PETITIONER WAS ESTOPPED BECAUSE
HIS COUNSEL BROUGHT UP THE QUESTION OF THE CAR'S INTERIOR APPEARANCE ON
DIRECT EXAMINATION AND CROSS-EXAMINATION, SEE P. 446, SUPRA, AMOUNTS TO
A HOLDING THAT PETITIONER WAIVED HIS FEDERAL RIGHT.  IN THE ABSENCE OF
A SHOWING THAT THIS WAS PROMPTED BY LITIGATION STRATEGY, THE PRESENT
RECORD IS INSUFFICIENT TO SUPPORT SUCH A HOLDING.  THE CROSS
EXAMINATION DURING THE STATE'S CASE, AMOUNTING TO LITTLE MORE THAN A
HALF-PAGE IN THE PRINTED RECORD, ADDS LITTLE TO PETITIONER'S FAILURE TO
MAKE CONTEMPORANEOUS OBJECTION.  THE EVIDENCE BROUGHT IN ON DIRECT
EXAMINATION WAS ONLY AFTER PETITIONER HAD MOVED FOR A DIRECTED VERDICT,
POINTING TO THE ILLEGAL EVIDENCE.  THIS WOULD SCARCELY SUPPORT A
FINDING OF WAIVER. 

FN8  HABEAS CORPUS PETITIONS FILED BY STATE PRISONERS IN FEDERAL
DISTRICT COURTS INCREASED FROM 1,903 TO 3,531, OR 85.5%, FROM THE 1963
TO THE 1964 FISCAL YEAR.  ANNUAL REPORT OF THE DIRECTOR, ADMINISTRATIVE
OFFICE OF THE UNITED STATES COURTS, P. 46 (1964); OUR OWN MISCELLANEOUS
DOCKET, WHERE CASES OF STATE PRISONERS ARE PRIMARILY LISTED, CONTINUES
TO SHOW SUBSTANTIAL INCREASES.  THE NUMBER HAS INCREASED FROM 878 FOR
THE 1956 TERM TO 1,532 FOR THE 1963 TERM. 

FN9  SEE MEADOR, ACCOMMODATING STATE CRIMINAL PROCEDURE AND FEDERAL
POSTCONVICTION REVIEW, 50 A.B.A.J. 928 (OCTOBER 1964).  AND SEE
BRENNAN, SOME ASPECTS OF FEDERALISM, 39 N.Y.U.L. REV. 945, 957-959
(1964). 

MR. JUSTICE BLACK, DISSENTING. 

PETITIONER CONTENDS THAT HIS CONVICTION WAS BASED IN PART ON EVIDENCE
OBTAINED BY AN ALLEGEDLY UNLAWFUL SEARCH IN VIOLATION OF THE UNITED
STATES CONSTITUTION.  I WOULD DECIDE THIS FEDERAL QUESTION HERE AND
NOW.  I DO NOT BELIEVE THAT THE MISSISSIPPI PROCEDURAL TRIAL RULE
RELIED ON BY THE STATE CAN SHUT OFF THIS COURT'S REVIEW, NOR DO I FIND
A PARTICLE OF SUPPORT FOR THE COURT'S SUGGESTION THAT PETITIONER
KNOWINGLY WAIVED HIS RIGHT TO HAVE THIS CONSTITUTIONAL QUESTION DECIDED
BY THE STATE TRIAL COURT. 

AS FAR AS THE ISSUE OF WAIVER IS CONCERNED, I AGREE WITH THE
MISSISSIPPI SUPREME COURT, WHICH CONSIDERED THE FAILURE TO OBJECT ONE
OF THE "HONEST MISTAKES" WHICH ANY LAWYER MIGHT MAKE, (FN1) SINCE I
BELIEVE THAT THE RECORD IS COMPLETELY BARREN OF EVIDENCE TO SUPPORT A
FINDING OF A CONSCIOUS AND INTENTIONAL WAIVER OF PETITIONER'S DUE
PROCESS RIGHT TO HAVE THE TRIAL COURT DECIDE WHETHER EVIDENCE USED
AGAINST HIM HAD BEEN UNCONSTITUTIONALLY SEIZED.  THEREFORE I WOULD NOT
REMAND FOR A HEARING BY THE STATE SUPREME COURT OR THE TRIAL COURT ON
THE ISSUE OF WAIVER.  (FN2)  AND EVEN IF I CONSIDERED THAT A REAL ISSUE
OF WAIVER HAD BEEN SHOWN AND WAS PROPERLY BEFORE US, I WOULD DECIDE IT
HERE.  I CANNOT AGREE TO THE COURT'S JUDGMENT REMANDING THE CASE TO THE
STATE COURTS FOR A HEARING ON THAT ISSUE ALONE, THEREBY GIVING THE
STATE A CHANCE TO SUPPLEMENT THE TRIAL RECORD TO SAVE ITS CONVICTION
FROM CONSTITUTIONAL CHALLENGE IN A SUMMARY HEARING BEFORE A COURT
WITHOUT A JURY.  THIS IS THE KIND OF PIECEMEAL PROSECUTION INVENTED AND
USED BY THIS COURT SEVERAL YEARS AGO IN UNITED STATES V. SHOTWELL MFG.
CO., 355 U.S. 233.  I EXPRESSED MY DISSENT FROM SUCH AN UNJUST, IF NOT
UNCONSTITUTIONAL, FRAGMENTIZING TECHNIQUE IN SHOTWELL, 355 U.S., AT 246
252, AND AGAIN LAST YEAR WHEN THE COURT AGAIN APPLIED IT IN JACKSON V.
DENNO, 378 U.S. 368, DISSENTING OPINION AT 401, 409-410.  SEE ALSO
BOLES V. STEVENSON, 379 U.S. 43, DISSENT NOTED AT 46.  I HAVE THE SAME
OBJECTIONS TO "SHOTWELLING" THE PRESENT CASE.  AND I DO NOT THINK THIS
DANGEROUS SHOTWELLING DEVICE SHOULD BE EXPANDED SO THAT THE STATE MAY
INVOKE IT MERELY BY CHALLENGING PETITIONER'S COUNSEL HERE TO DENY
KNOWLEDGE OF MISSISSIPPI'S PROCEDURAL RULE. 

NOR DO I BELIEVE THAT MISSISSIPPI'S PROCEDURAL RULE CONCERNING THE
STAGE OF A TRIAL AT WHICH CONSTITUTIONAL OBJECTIONS SHOULD BE MADE IS
THE KIND OF RULE THAT WE SHOULD ACCEPT AS AN INDEPENDENT, ADEQUATE
GROUND FOR THE STATE SUPREME COURT'S REFUSAL TO DECIDE THE
CONSTITUTIONAL QUESTION RAISED BY PETITIONER.  IN WILLIAMS V. GEORGIA,
349 U.S. 375, THIS COURT HELD THAT WHERE A STATE ALLOWS CONSTITUTIONAL
QUESTIONS "TO BE RAISED AT A LATE STAGE AND BE DETERMINED BY ITS COURTS
AS A MATTER OF DISCRETION, WE ARE NOT CONCLUDED FROM ASSUMING
JURISDICTION AND DECIDING WHETHER THE STATE COURT ACTION IN THE
PARTICULAR CIRCUMSTANCES IS, IN EFFECT, AN AVOIDANCE OF THE FEDERAL
RIGHT."  (FN3)  NO MISSISSIPPI COURT OPINIONS OR STATE STATUTES HAVE
BEEN CALLED TO OUR ATTENTION THAT I READ AS DENYING POWER OF THE STATE
SUPREME COURT, SHOULD THAT COURT WISH TO DO SO, TO CONSIDER AND
DETERMINE CONSTITUTIONAL QUESTIONS PRESENTED AT THE TIME THIS ONE WAS. 
IN FACT, AS I UNDERSTAND COUNSEL FOR THE STATE, THE SUPREME COURT OF
MISSISSIPPI DOES HAVE POWER IN ITS DISCRETION TO CONSIDER SUCH
QUESTIONS REGARDLESS OF WHEN THEY ARE PRESENTED.  (FN4)  AS THAT COURT
HAS SAID MOST PERSUASIVELY: 

"CONSTITUTIONAL RIGHTS IN SERIOUS CRIMINAL CASES RISE ABOVE MERE
RULES OF PROCEDURE  ...  . ERRORS AFFECTING FUNDAMENTAL RIGHTS ARE
EXCEPTIONS TO THE RULE THAT QUESTIONS NOT RAISED IN THE TRIAL COURT
CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL."  BROOKS V. STATE, 209
MISS.  150, 155, 46 SO. 2D 94, 97. 

AFTER STATING THIS TO BE THE RULE IT FOLLOWED, AND CITING A NUMBER OF
ITS PAST DECISIONS WHICH STATED AND APPLIED THE SAME RULE, THE HIGHEST
COURT OF MISSISSIPPI, IN THE OPINION QUOTED FROM, BECAUSE OF THAT RULE
REVERSED A CONVICTION OBTAINED THROUGH THE USE OF UNCONSTITUTIONALLY
SEIZED EVIDENCE, EVEN THOUGH AS IN THE PRESENT CASE THERE HAD BEEN NO
OBJECTION MADE AT THE TIME THE EVIDENCE WAS PRESENTED.  THE COURT NOTED
THAT IT HAD APPLIED THIS SAME RULE IN OTHER CASES WHERE PROPER
OBJECTION HAD NOT BEEN MADE AT THE TRIAL, CITING ITS HOLDINGS IN FISHER
V. STATE, 145 MISS.  116, 110 SO. 361, AND CARTER V. STATE, 198 MISS. 
523, 21 SO. 2D 404.  IN ALL OF THOSE CASES THE DEFENDANT APPEARS TO
HAVE BEEN REPRESENTED BY LOCAL COUNSEL.  YET THIS COURT NOW APPARENTLY
HOLDS THAT THE STATE COURT MAY, IF IT CHOOSES TO DO SO, DEPART FROM ITS
PRIOR CASES AND APPLY A NEW, STRICTER RULE AGAINST THIS DEFENDANT AND
THEREBY PREVENT THIS COURT FROM REVIEWING THE CASE TO SEE THAT HIS
FEDERAL CONSTITUTIONAL RIGHTS WERE SAFEGUARDED.  I DO NOT BELIEVE THE
CHERISHED FEDERAL CONSTITUTIONAL RIGHT OF A DEFENDANT TO OBJECT TO
UNCONSTITUTIONALLY SEIZED EVIDENCE OFFERED AGAINST HIM CAN BE CUT OFF
IRREVOCABLY BY STATE-COURT DISCRETIONARY RULINGS WHICH MIGHT BE
DIFFERENT IN PARTICULAR UNDEFINED CIRCUMSTANCES IN OTHER CASES.  I
THINK SUCH A PROCEDURAL DEVICE FOR SHUTTING OFF OUR REVIEW OF QUESTIONS
INVOLVING CONSTITUTIONAL RIGHTS IS TOO DANGEROUS TO BE TOLERATED. 

FOR THESE REASONS I DISSENT FROM THE DISPOSITION OF THIS CASE. 

FN1  154 SO. 2D 289, 296 (BOUND VOLUME). 

FN2  I THINK THAT THE VERY "EVIDENCE" CITED IN THE COURT'S OPINION
POINTS UP THE FACT THAT THERE WAS NO EVIDENCE FROM WHICH IT CAN BE
INFERRED THAT A CONSCIOUS WAIVER WAS MADE.  I CAN FIND NO SUPPORT, AS
THE COURT DOES, FROM AN AFFIDAVIT FILED FOR THE FIRST TIME AS AN
APPENDIX TO THE STATE'S BRIEF IN THIS COURT, STATING THAT THE DISTRICT
ATTORNEY WHO TRIED THE CASE HAD SEEN ONE OF PETITIONER'S COUNSEL START
TO RISE FROM HIS CHAIR WHEN THE EVIDENCE FROM THE SEARCH WAS
INTRODUCED, BUT THAT ANOTHER OF PETITIONER'S COUNSEL GAVE A "JERK ON
THE COAT TAIL" OF THE LAWYER, "RETURNING HIM TO HIS SEAT."  IT IS HARD
FOR ME TO SEE HOW ONE COULD INFER FROM THIS "JERK ON THE COAT TAIL"
EVEN A SUSPICION THAT PETITIONER HAD CONSCIOUSLY AND KNOWINGLY WAIVED
HIS RIGHT TO OBJECT TO THE EVIDENCE OFFERED AGAINST HIM. 

FN3  349 U.S., AT 383 (FOOTNOTE OMITTED). 

FN4  THE ATTORNEYS FOR THE STATE OF MISSISSIPPI HAVE NO DOUBT THAT
THE STATE SUPREME COURT HAS THIS POWER.  WHEN THE CASE WAS ARGUED
BEFORE THIS COURT, THE FOLLOWING EXCHANGE TOOK PLACE BETWEEN A JUSTICE
AND COUNSEL FOR THE STATE: 

"Q.  DOES THAT MEAN THERE IS A DISCRETION IN THE STATE COURT WHERE IT
CAN WAIVE A FAILURE TO OBJECT IF IT SEES FIT UNDER THE CIRCUMSTANCES? 

"A.  IT DID SO IN THAT CASE I'M TALKING ABOUT (BROOKS V. STATE, INFRA
IN TEXT) WHERE IN SEVERAL RESPECTS THE DEFENDANT'S RIGHTS WERE JUST
COMPLETELY TRAMPLED.    "Q.  IT MEANS THAT IT'S NOT AN ABSOLUTELY
RIGID, UNBREAKABLE, IRREVOCABLE RULE? 

"A.  THAT'S RIGHT.  THAT'S RIGHT, YOUR HONOR. 

"Q.  AND THAT THE COURT CAN WAIVE IT IF THE CIRCUMSTANCES IN ITS
JUDGMENT JUSTIFY? 

"A.  THAT'S CORRECT." 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE CLARK AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

FLYING BANNERS OF FEDERALISM, THE COURT'S OPINION ACTUALLY RAISES
STORM SIGNALS OF A MOST DISQUIETING NATURE.  WHILE PURPORTING TO
RECOGNIZE THE TRADITIONAL PRINCIPLE THAT AN ADEQUATE PROCEDURAL, AS
WELL AS SUBSTANTIVE, STATE GOUND OF DECISION BARS DIRECT REVIEW HERE OF
ANY FEDERAL CLAIM ASSERTED IN THE STATE LITIGATION, THE COURT, UNLESS I
WHOLLY MISCONCEIVE WHAT IS LURKING IN TODAY'S OPINION, PORTENDS A
SEVERE DILUTION, IF NOT COMPLETE ABOLITION, OF THE CONCEPT OF
"ADEQUACY" AS PERTAINING TO STATE PROCEDURAL GROUNDS. 

IN MAKING THESE PRELIMINARY OBSERVATIONS I DO NOT BELIEVE I AM SEEING
GHOSTS.  FOR I CANNOT ACCOUNT FOR THE REMAND OF THIS CASE IN THE FACE
OF WHAT IS A DEMONSTRABLY ADEQUATE STATE PROCEDURAL GROUND OF DECISION
BY THE MISSISSIPPI SUPREME COURT EXCEPT AS AN EARLY STEP TOWARD
EXTENDING IN ONE WAY OR ANOTHER THE DOCTRINE OF FAY V. NOIA, 372 U.S.
391, TO DIRECT REVIEW.  IN THAT CASE, DECIDED ONLY TWO TERMS AGO, THE
COURT TURNED ITS BACK ON HISTORY (SEE DISSENTING OPINION OF THIS
WRITER, AT 448 ET SEQ.), AND DID AWAY WITH THE ADEQUATE STATE GROUND
DOCTRINE IN FEDERAL HABEAS CORPUS PROCEEDINGS. 

BELIEVING THAT ANY STEP TOWARD EXTENDING NOIA TO DIRECT REVIEW SHOULD
BE FLUSHED OUT AND CHALLENGED AT ITS EARLIEST APPEARANCE IN AN OPINION
OF THIS COURT, I RESPECTFULLY DISSENT. 

                                          I. 

THE MISSISSIPPI SUPREME COURT DID NOT BASE ITS ULTIMATE DECISION UPON
PETITIONER'S FEDERAL CLAIM THAT HIS WIFE'S CONSENT COULD NOT VALIDATE
AN OTHERWISE IMPROPER POLICE SEARCH OF THE FAMILY CAR, BUT ON THE
PROCEDURAL GROUND THAT PETITIONER (WHO WAS REPRESENTED BY THREE
EXPERIENCED LAWYERS) HAD NOT OBJECTED AT THE TIME THE FRUITS OF THIS
SEARCH WERE RECEIVED IN EVIDENCE.  THIS COURT NOW STRONGLY IMPLIES, BUT
DOES NOT DECIDE (IN VIEW OF ITS REMAND ON THE "WAIVER" ISSUE) THAT
ENFORCEMENT OF THE STATE'S "CONTEMPORANEOUS-OBJECTION" RULE WAS
INADEQUATE AS A STATE GROUND OF DECISION BECAUSE THE PETITIONER'S
MOTION FOR A DIRECTED VERDICT OF ACQUITTAL AFFORDED THE TRIAL JUDGE A
SATISFACTORY OPPORTUNITY TO TAKE "APPROPRIATE CORRECTIVE ACTION" WITH
REFERENCE TO THE ALLEGEDLY INADMISSIBLE EVIDENCE.  THUS, IT IS
SUGGESTED, THIS MAY BE A SITUATION WHERE "GIVING EFFECT TO THE
CONTEMPORANEOUS-OBJECTION RULE FOR ITS OWN SAKE 'WOULD BE TO FORCE
RESORT TO AN ARID RITUAL OF MEANINGLESS FORM.'"  (ANTE, P. 449.) 

FROM THE STANDPOINT OF THE REALITIES OF THE COURTROOM, I CAN ONLY
REGARD THE COURT'S ANALYSIS AS LITTLE SHORT OF FANCIFUL.  THE
PETITIONER'S MOTION FOR A VERDICT COULD HAVE PROVOKED ONE OF THREE
COURSES OF ACTION BY THE TRIAL JUDGE, NONE OF WHICH CAN REASONABLY BE
CONSIDERED AS DEPRIVING THE STATE'S CONTEMPORANEOUS-OBJECTION RULE OF
ITS CAPACITY TO SERVE AS AN ADEQUATE STATE GROUND. 

1.  THE TRIAL JUDGE MIGHT HAVE GRANTED THE DIRECTED VERDICT.  BUT HAD
THIS ACTION BEEN APPROPRIATE, THE SUPREME COURT OF MISSISSIPPI, IN ITS
FIRST OPINION, WOULD HAVE ORDERED THE PROSECUTION DISMISSED.  SINCE IT
DID NOT, AND THE MATTER IS ENTIRELY ONE OF STATE LAW, FURTHER
SPECULATION BY THIS COURT SHOULD BE FORECLOSED.  (FN1) 

2.  THE TRIAL JUDGE MIGHT HAVE DIRECTED A MISTRIAL.  THE STATE'S
INTEREST IN PREVENTING MISTRIALS THROUGH THE CONTEMPORANEOUS-OBJECTION
REQUIREMENT IS OBVIOUS. 

3.  THE REMAINING COURSE OF ACTION IS THE EXAMPLE GIVEN BY THE COURT;
THE TRIAL JUDGE COULD HAVE DENIED THE MOTION FOR A DIRECTED VERDICT,
BUT, SUA SPONTE, CALLED FOR ELABORATION OF THE ARGUMENT, DETERMINED
THAT THE SEARCH OF THE AUTOMOBILE WAS UNCONSTITUTIONAL, AND GIVEN
CAUTIONARY INSTRUCTIONS TO THE JURY TO DISREGARD THE INADMISSIBLE
EVIDENCE WHEN THE CASE WAS SUBMITTED TO IT. 

THE PRACTICAL DIFFICULTIES WITH THIS APPROACH ARE MANIFESTLY
SUFFICIENT TO SHOW A SUBSTANTIAL STATE INTEREST IN THEIR AVOIDANCE, AND
THUS TO SHOW AN "ADEQUATE" BASIS FOR THE STATE'S ADHERENCE TO THE
CONTEMPORANEOUS-OBJECTION RULE.  TO MAKE MY POINT I MUST QUOTE THE
MOTION FOR DIRECTED VERDICT IN FULL. 

"ATTY CARTER:  WE'RE GOING TO MAKE A MOTION, YOUR HONOR, FOR A
DIRECTED VERDICT IN THIS CASE.  WE ARE GOING TO BASE OUR MOTION ON
SEVERAL GROUNDS.  FIRST, WE THINK THAT THIS WHOLE PROCESS BY WHICH THIS
DEFENDANT WAS BROUGHT OR ATTEMPTED TO BE BROUGHT INTO THE JURISDICTION
OF THIS COURT IS ILLEGAL AND VOID.  THERE IS NOTHING IN THE RECORD IN
THIS CASE TO SHOW THAT THE WARRANT THAT WAS ISSUED AGAINST THIS
DEFENDANT WAS BASED UPON - IT MUST BE BASED IN THIS STATE AND ANY OTHER
STATE ON AN AFFIDAVIT, ON A PROPER AFFIDAVIT OR A PROPER COMPLAINT BY
ANY PARTY.  TRUE, THERE IS SOME TESTIMONY THAT SOME AFFIDAVIT WAS MADE,
AND THE COMPLAINING WITNESS SAID SO, BUT IN THE RECORD IN THIS CASE
WHICH IS BEFORE THE COURT, NO SUCH AFFIDAVIT IS PRESENT AND THERE IS A
VERIFICATION FROM THE JUSTICE OF THE PEACE THAT NO SUCH AFFIDAVIT IS
PRESENT IN THIS CASE; THEREFORE, WE CONTEND THAT THE WARRANT UNDER
WHICH THIS DEFENDANT WAS SUBJECTED TO ARREST WAS ILLEGAL AND WITHOUT
FORCE AND EFFECT.  SECONDLY, WE CONTEND THAT THE WARRANT HAVING BEEN
ISSUED AND THE TESTIMONY OF THIS MR. COLLINS ON THE STAND TO THE EFFECT
THAT AFTER HE HAD PLACED THIS MAN UNDER ARREST, HE THEN PROCEEDED TO GO
AND SEARCH HIS CAR, AND CLEARLY, THIS IS A VIOLATION OF HIS RIGHTS
UNDER THE FOURTH AMENDMENT, AND IT IS UNLAWFUL SEARCH AND SEIZURE SO
THE EVIDENCE THAT THEY HAVE SECURED AGAINST THIS DEFENDANT IS ILLEGAL
AND UNLAWFUL.  FINALLY, WE CONTEND THAT ON THE BASIS OF THESE FACTS
THAT THE AFFIDAVIT UNDER WHICH THE DEFENDANT WAS TRIED BEFORE THE
JUSTICE OF THE PEACE COURT, AS WE CONTENDED YESTERDAY, BASED UPON THE
STATEMENT THAT WAS SWORN TO BY THE COUNTY ATTORNEY, NOT ON INFORMATION
AND BELIEF, BUT DIRECTLY THAT THIS IS VOID AND DEFECTIVE AND COULD GIVE
THE JUSTICE OF THE PEACE NO JURISDICTION IN THIS CASE.  WE CONTEND
UNDER THESE CIRCUMSTANCES THAT THE STATE - THAT THIS IS AN ILLEGAL
PROCESS; THAT THIS MAN'S RIGHTS HAVE BEEN VIOLATED UNDER THE FOURTEENTH
AMENDMENT, AND FINALLY, WE CONTEND THAT THE STATE HAS FAILED TO PROVE
BEYOND A REASONABLE DOUBT TO ANY EXTENT TO IMPLICATE THIS MAN IN THIS
CASE.  NOW, ON THESE BASES WE CONTEND THAT THIS WHOLE PROCESS IS
ILLEGAL AND VOID, AND THAT IT HAS PERMEATED AND CONTENDED THE WHOLE
PROCESS INSOFAR AS THE JURISDICTION OF THIS COURT IS CONCERNED OR
JURISDICTION OVER THIS INDIVIDUAL IS CONCERNED; THEREFORE, HE SHOULD BE
RELEASED, AND WE MOVE FOR A DIRECTED VERDICT. 

"COURT:  MOTION OVERRULED.  BRING THE JURY BACK." 

THE MOTION WAS RENEWED AT THE COMPLETION OF THE DEFENSE IN THE
FOLLOWING LANGUAGE: 

"ATTY CARTER:  YOUR HONOR, AT THIS TIME AT THE CLOSE OF THE CASE WE
WANT TO MAKE A MOTION FOR A DIRECTED VERDICT.  WE BASE IT ON THE
GROUNDS AND THE REASONS WHICH WE SET FORTH IN OUR MOTION FOR A DIRECTED
VERDICT AT THE CLOSE OF THE STATE'S CASE.  WE MAKE IT NOW AT THE CLOSE
OF THE ENTIRE CASE ON THOSE GROUNDS AND ON THE GROUNDS THAT THE
EVIDENCE HAS NOT SHOWN BEYOND ANY REASONABLE DOUBT UNDER THE LAW THAT
THE DEFENDANT IS GUILTY OF THE CHARGE.  WE THEREFORE MAKE A MOTION FOR
A DIRECTED VERDICT AT THIS TIME. 

"COURT:  MOTION IS OVERRULED." 

THE SINGLE SENTENCE IN THE FIRST MOTION (SUPRA, P. 460) IS THE ONLY
DIRECT REFERENCE TO THE SEARCH AND SEIZURE QUESTION FROM BEGINNING TO
END OF THE TRIAL. 

AS EVERY TRIAL LAWYER OF ANY EXPERIENCE KNOWS, MOTIONS FOR DIRECTED
VERDICTS ARE GENERALLY MADE AS A MATTER OF COURSE AT THE CLOSE OF THE
PROSECUTION'S CASE, AND ARE GENERALLY DENIED WITHOUT CLOSE
CONSIDERATION UNLESS THE CASE IS CLEARLY BORDERLINE.  IT IS SIMPLY
UNREALISTIC IN THIS CONTEXT TO HAVE EXPECTED THE TRIAL JUDGE TO PICK
OUT THE SINGLE VAGUE SENTENCE FROM THE DIRECTED VERDICT MOTION AND TO
HAVE ACTED UPON IT WITH THE REFINED IMAGINATION THE COURT WOULD REQUIRE
OF HIM.  HENRY'S THREE LAWYERS APPARENTLY REGARDED THE SEARCH AND
SEIZURE CLAIM AS MAKE-WEIGHT.  THEY HAD NOT MENTIONED IT EARLIER IN THE
TRIAL AND GAVE NO EXPLANATION FOR THEIR LAXITY IN RAISING IT.  AND WHEN
THEY DID MENTION IT, THEY DID SO IN A CURSORY AND CONCLUSIONAL SENTENCE
PLACED IN A SECONDARY POSITION IN A DIRECTED VERDICT MOTION.  THE
THEORY UNDERLYING THE SEARCH AND SEIZURE ARGUMENT - THAT A WIFE'S
FREELY GIVEN PERMISSION TO SEARCH THE FAMILY CAR IS INVALID - IS SUBTLE
TO SAY THE VERY LEAST, AND AS THE MATTER WAS PRESENTED TO THE TRIAL
JUDGE IT WOULD HAVE BEEN EXTRAORDINARY HAD HE CAUGHT IT, OR EVEN
REALIZED THAT THERE WAS A SERIOUS PROBLEM TO CATCH.  BUT THIS IS NOT
ALL THE COURT WOULD REQUIRE OF HIM.  HE MUST, IN ADDITION, REALIZE THAT
DESPITE THE INAPPROPRIATENESS OF GRANTING THE DIRECTED VERDICT
REQUESTED OF HIM, HE COULD PARTIALLY SERVE THE CAUSE OF THE DEFENSE BY
TAKING IT UPON HIMSELF TO FRAME AND GIVE CAUTIONARY INSTRUCTIONS TO THE
JURY TO DISREGARD THE EVIDENCE OBTAINED AS FRUITS OF THE SEARCH. 
(FN2) 

CONTRAST WITH THIS THE SITUATION PRESENTED BY A CONTEMPORANEOUS
OBJECTION.  THE OBJECTION MUST NECESSARILY BE DIRECTED TO THE SINGLE
QUESTION OF ADMISSIBILITY; THE JUDGE MUST INEVITABLY FOCUS ON IT; THERE
WOULD BE NO DOUBT AS TO THE APPROPRIATE FORM OF RELIEF, AND THE EFFECT
OF THE TRIAL JUDGE'S DECISION WOULD BE IMMEDIATE RATHER THAN REMOTE. 
USUALLY THE PROPER TIMING OF AN OBJECTION WILL FORCE AN ELABORATION OF
IT.  HAD OBJECTION BEEN MADE IN THIS CASE DURING THE OFFICER'S
TESTIMONY ABOUT THE SEARCH, IT WOULD HAVE CALLED FORTH OF ITS OWN FORCE
THE SPECIFIC ANSWER THAT THE WIFE HAD GIVEN HER PERMISSION AND, IN
TURN, THE ASSERTION THAT THE PERMISSION WAS INEFFECTIVE.  THE ISSUE, IN
SHORT, WOULD HAVE BEEN ADVERTENTLY FACED BY THE TRIAL JUDGE AND THE
LIKELIHOOD OF ACHIEVING A CORRECT RESULT MAXIMIZED. 

THUS THE STATE INTEREST WHICH SO POWERFULLY SUPPORTS THE
CONTEMPORANEOUS-OBJECTION RULE IS THAT OF MAXIMIZING CORRECT DECISIONS
AND CONCOMITANTLY MINIMIZING ERRORS REQUIRING MISTRIALS AND RETRIALS. 
THE ALTERNATIVE FOR THE STATE IS TO REVERSE A TRIAL JUDGE WHO, FROM A
LONG MOTION, FAILS TO PICK OUT AND ACT WITH REMARKABLE IMAGINATION UPON
A SINGLE VAGUE SENTENCE RELATING TO ADMISSIBILITY OF EVIDENCE LONG
SINCE ADMITTED.  A TRIAL JUDGE IS A DECISION-MAKER, NOT AN ADVOCATE. 
TO FORCE HIM OUT OF HIS PROPER ROLE BY REQUIRING HIM TO COAX OUT THE
ARGUMENTS AND IMAGINATIVELY REFRAME THE REQUESTED REMEDIES FOR THE
COUNSEL BEFORE HIM IS TO PLACE UPON HIM MORE RESPONSIBILITY THAN A
TRIAL JUDGE CAN BE EXPECTED TO DISCHARGE. 

THERE WAS NO "APPROPRIATE CORRECTIVE ACTION" THAT COULD HAVE
REALISTICALLY SATISFIED THE PURPOSES OF THE CONTEMPORANEOUS-OBJECTION
RULE.  WITHOUT QUESTION THE STATE HAD AN INTEREST IN MAINTAINING THE
INTEGRITY OF ITS PROCEDURE, AND THUS WITHOUT DOUBT RELIANCE ON THE RULE
IN QUESTION IS "ADEQUATE" TO BAR DIRECT REVIEW OF PETITIONER'S FEDERAL
CLAIM BY THIS COURT.  (FN3)

II. 

THE REAL REASON FOR REMANDING THIS CASE EMERGES ONLY IN THE CLOSING
PAGES OF THE COURT'S OPINION.  IT IS POINTED OUT THAT EVEN WERE THE
CONTEMPORANEOUS-OBJECTION RULE CONSIDERED TO BE AN ADEQUATE STATE
GROUND, THIS WOULD NOT, UNDER FAY V. NOIA, PRECLUDE CONSIDERATION OF
HENRY'S FEDERAL CLAIM IN FEDERAL HABEAS CORPUS UNLESS IT WERE MADE TO
APPEAR THAT HENRY HAD DELIBERATELY WAIVED HIS FEDERAL CLAIM IN THE
STATE PROCEEDINGS.  IT IS THEN SAID THAT IN THE INTEREST OF "EFFICIENT
ADMINISTRATION OF CRIMINAL JUSTICE" AND "HARMONIOUS" RELATIONS BETWEEN
THE FEDERAL AND STATE JUDICIARIES THE MISSISSIPPI COURTS SHOULD BE
GIVEN THE OPPORTUNITY TO PASS, IN THE FIRST INSTANCE, ON THE WAIVER
ISSUE; THE PROSPECT IS ENTERTAINED THAT SUCH ACTION ON THE PART OF THIS
COURT WILL ENCOURAGE THE STATES TO GRASP THE "OPPORTUNITY" AFFORDED BY
FAY V. NOIA AND TOWNSEND V. SAIN BY PROVIDING "STATE PROCEDURES, DIRECT
OR COLLATERAL, FOR A FULL AIRING OF FEDERAL CLAIMS."  IT IS "SUGGESTED"
THAT WERE THIS TO BE DONE "IRRITATION" AND "FRICTION" RESPECTING THE
EXERCISE OF FEDERAL HABEAS CORPUS POWER VIS-A-VIS STATE CONVICTIONS
"MIGHT BE AMELIORATED." 

WHAT DOES ALL THIS SIGNIFY?  THE STATES ARE BEING INVITED TO
VOLUNTARILY OBLITERATE ALL STATE PROCEDURES, HOWEVER CONDUCIVE THEY MAY
BE TO THE ORDERLY CONDUCT OF LITIGATION, WHICH MIGHT THWART STATE-COURT
CONSIDERATION OF FEDERAL CLAIMS.  BUT WHAT IF THE STATES DO NOT ACCEPT
THE INVITATION?  DESPITE THE COURT'S SOFT-SPOKEN ASSERTION THAT
"SETTLED PRINCIPLES" WILL BE APPLIED IN THE FUTURE, I DO NOT THINK THE
INTIMATION WILL BE MISSED BY ANY DISCERNING READER OF THE COURT'S
OPINION THAT AT THE LEAST A SUBSTANTIAL DILUTION OF THE ADEQUATE STATE
GROUND DOCTRINE MAY BE EXPECTED.  A CONTRARY PREDICTION IS BELIED BY
THE IMPLICATION OF THE OPINION THAT UNDER "SETTLED PRINCIPLES," THE
CONTEMPORANEOUS-OBJECTION RULE RELIED UPON IN THIS CASE COULD BE
DECLARED INADEQUATE. 

TO ME THIS WOULD NOT BE A MOVE TOWARD "HARMONIOUS" FEDERALISM; ANY
FURTHER DISRESPECT FOR STATE PROCEDURES, NO LONGER COGNIZABLE AT ALL IN
FEDERAL HABEAS CORPUS, WOULD BE THE VERY ANTITHESIS OF IT.  WHILE SOME
MAY SAY THAT, GIVEN FAY V. NOIA, WHAT THE COURT IS ATTEMPTING TO DO IS
JUSTIFIABLE AS A MEANS OF PROMOTING "EFFICIENCY" IN THE ADMINISTRATION
OF CRIMINAL JUSTICE, IT IS THE SORT OF EFFICIENCY WHICH, THOUGH PERHAPS
APPROPRIATE IN SOME WATERED-DOWN FORM OF FEDERALISM, IS NOT CONGENIAL
TO THE KIND OF FEDERALISM I HAD SUPPOSED WAS OURS.  I VENTURE TO SAY
THAT TO ALL WHO BELIEVE THE FEDERAL SYSTEM AS WE HAVE KNOWN IT TO BE A
PRICELESS ASPECT OF OUR CONSTITUTIONALISM, THE SPECTRE IMPLICIT IN
TODAY'S DECISION WILL BE NO LESS DISTURBING THAN WHAT THE COURT HAS
ALREADY DONE IN FAY V. NOIA.    BELIEVING THAT THE JUDGMENT BELOW RESTS
ON AN ADEQUATE INDEPENDENT STATE GROUND, I WOULD DISMISS THE WRIT
ISSUED IN THIS CASE AS IMPROVIDENTLY GRANTED. 

FN1  THE COURT, AS A MATTER OF STATE LAW, COULD HAVE FOUND (A) THAT
THERE WAS SUFFICIENT CORROBORATIVE EVIDENCE, (B) THAT NONE WAS
NECESSARY, OR (C) THAT RETRIAL WAS NECESSARY TO PREVENT DEFENDANTS IN
CRIMINAL CASES FROM HANGING BACK UNTIL THE COMPLETION OF THE STATE'S
CASE AND THEN FOR THE FIRST TIME MOVING TO STRIKE A PIECE OF EVIDENCE
CRUCIAL TO GETTING THE CASE TO THE JURY. 

THE COURT'S SUGGESTION (ANTE, P. 449, N. 4) THAT WE MAY PROCEED ON
THE SPECULATION THAT THE MISSISSIPPI SUPREME COURT "OVERLOOKED" THE
RENEWAL OF THE MOTION FOR DIRECTED VERDICT MADE AT THE COMPLETION OF
THE CASE HARDLY REQUIRES COMMENT. 

FN2  FURTHERMORE, EVEN IF COUNSEL HAD FULLY ELABORATED THE ARGUMENT
AND HAD MADE IT IN THE CONTEXT OF A MOTION TO STRIKE RATHER THAN A
MOTION FOR DIRECTED VERDICT, THE TRIAL JUDGE COULD PROPERLY HAVE
EXERCISED HIS DISCRETION (AS THE MISSISSIPPI SUPREME COURT DID) AND
DENIED ANY RELIEF.  THIS POWER IS RECOGNIZED IN TRIAL JUDGES IN THE
FEDERAL SYSTEM IN ORDER TO PREVENT THE "AMBUSHING" OF A TRIAL THROUGH
THE WITHHOLDING OF AN OBJECTION THAT SHOULD HAVE BEEN MADE WHEN
QUESTIONABLE EVIDENCE WAS FIRST INTRODUCED.  FEDERALISM IS TURNED
UPSIDE DOWN IF IT IS DENIED TO JUDGES IN THE STATE SYSTEMS.  SEE FED.
RULES CRIM. PROC. 41(E) AND 26; UNITED STATES V. MILANOVICH, 303 F.2D
626, CERT. DENIED, 371 U.S. 876; HOLLINGSWORTH V. UNITED STATES, 321
F.2D 342, 350; ISAACS V. UNITED STATES, 301 F.2D 706, 734-735, CERT.
DENIED, 371 U.S. 818; UNITED STATES V. MURRAY, 297 F.2D 812, 818, CERT.
DENIED, 369 U.S. 828; METCALF V. UNITED STATES, 195 F.2D 213, 216-217. 

FN3  AS THE FIRST OPINION BY THE MISSISSIPPI SUPREME COURT SHOWS,
THERE IS DISCRETION IN CERTAIN CIRCUMSTANCES TO LOWER THE PROCEDURAL
BAR.  IT DOES NOT FOLLOW THAT THIS COURT IS COMPLETELY FREE TO EXERCISE
THAT DISCRETION.  EVEN IN CASES FROM LOWER FEDERAL COURTS WE DO SO ONLY
IF THERE HAS BEEN AN ABUSE.  IF, IN ORDER TO INSULATE ITS DECISIONS
FROM REVERSAL BY THIS COURT, A STATE COURT MUST STRIP ITSELF OF THE
DISCRETIONARY POWER TO DIFFERENTIATE BETWEEN DIFFERENT SETS OF
CIRCUMSTANCES, THE RULE OPERATES IN A MOST PERVERSE WAY. 
..END :
























TURNER V. LOUISIANA 379 U.S. 466 


NO. 53.  ARGUED NOVEMBER 19, 1964 - DECIDED JANUARY 18, 1965 - 244 LA.
447, 152 SO. 2D 555, REVERSED AND REMANDED. 


DURING PETITIONER'S THREE-DAY MURDER TRIAL, WHICH RESULTED IN HIS
BEING FOUND GUILTY AND BEING SENTENCED TO DEATH, TWO DEPUTY SHERIFFS
WHO WERE THE PRINCIPAL PROSECUTION WITNESSES HAD CUSTODY OF THE JURORS
AND AS A RESULT WERE IN CLOSE AND CONTINUOUS ASSOCIATION WITH THEM,
FREELY MINGLING AND CONVERSING WITH THEM THROUGHOUT THE TRIAL PERIOD. 
THOUGH DISAPPROVING OF THE PRACTICE OF OFFICERS WHO ARE WITNESSES
HAVING CHARGE OF THE JURY, THE STATE SUPREME COURT FOUND NO PREJUDICE
TO PETITIONER AND AFFIRMED HIS CONVICTION.  HELD:  THE CLOSE AND
CONTINUOUS ASSOCIATION BETWEEN KEY WITNESSES AND THE JURY DEPRIVED THE
PETITIONER OF THE RIGHT TO TRIAL BY AN IMPARTIAL JURY WHICH THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES.  PP. 471-474. 

TURNER V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, WAYNE TURNER, WAS INDICTED IN TANGIPAHOA PARISH,
LOUISIANA, UPON A CHARGE OF MURDER COMMITTED DURING THE COURSE OF A
ROBBERY.  AFTER A THREE-DAY TRIAL A JURY FOUND HIM GUILTY AS CHARGED. 
HE WAS SENTENCED TO DEATH.  THE CONVICTION WAS AFFIRMED BY THE SUPREME
COURT OF LOUISIANA, (FN1) AND WE GRANTED CERTIORARI (FN2) TO CONSIDER
THE CLAIM THAT THE CIRCUMSTANCES ATTENDING THE TRIAL WERE SUCH AS TO
DEPRIVE TURNER OF A RIGHT SECURED TO HIM BY THE FOURTEENTH AMENDMENT. 

THE TWO PRINCIPAL WITNESSES FOR THE PROSECUTION AT THE TRIAL WERE
VINCENT RISPONE AND HULON SIMMONS.  BOTH WERE DEPUTY SHERIFFS OF
TANGIPAHOA PARISH.  ON DIRECT EXAMINATION RISPONE DESCRIBED IN DETAIL
AN INVESTIGATION HE SAID HE HAD MADE AT THE SCENE OF THE MURDER.  HE
FURTHER TESTIFIED THAT HE AND SIMMONS LATER TOOK TURNER INTO CUSTODY,
AND THAT TURNER HAD LED THEM TO A PLACE IN THE WOODS WHERE THE
CARTRIDGE CLIP FROM THE MURDER WEAPON WAS RECOVERED.  SIMMONS
CORROBORATED RISPONE'S TESTIMONY ABOUT APPREHENDING TURNER AND FINDING
THE CARTRIDGE CLIP, AND ALSO TOLD OF CERTAIN DAMAGING ADMISSIONS WHICH
HE SAID HAD BEEN MADE BY TURNER AT THE TIME OF HIS APPREHENSION.  IN
ADDITION, SIMMONS DESCRIBED THE CIRCUMSTANCES UNDER WHICH HE SAID HE
HAD LATER PREVAILED UPON TURNER TO MAKE A WRITTEN CONFESSION.  THIS
CONFESSION WAS INTRODUCED IN EVIDENCE.  BOTH RISPONE AND SIMMONS WERE
CROSS-EXAMINED AT LENGTH WITH RESPECT TO ALL ASPECTS OF THEIR
TESTIMONY.  TURNER DID NOT TAKE THE WITNESS STAND IN HIS OWN BEHALF. 
(FN3) 

THE MEMBERS OF THE JURY WERE SEQUESTERED IN ACCORDANCE WITH LOUISIANA
LAW DURING THE COURSE OF THE TRIAL, (FN4) AND WERE "PLACED IN CHARGE OF
THE SHERIFF" BY THE TRIAL JUDGE.  IN PRACTICE, THIS MEANT THAT THE
JURORS WERE CONTINUOUSLY IN THE COMPANY OF DEPUTY SHERIFFS OF
TANGIPAHOA PARISH DURING THE THREE DAYS THAT THE TRIAL LASTED.  THE
DEPUTIES DROVE THE JURORS TO A RESTAURANT FOR EACH MEAL, AND TO THEIR
LODGINGS EACH NIGHT.  THE DEPUTIES ATE WITH THEM, CONVERSED WITH THEM,
AND DID ERRANDS FOR THEM.  (FN5) 

TWO OF THE DEPUTY SHERIFFS WHO WERE IN THIS CLOSE AND CONTINUAL
ASSOCIATION WITH THE JURORS WERE VINCENT RISPONE AND HULON SIMMONS. 
TURNER'S COUNSEL MOVED FOR A MISTRIAL WHEN RISPONE TESTIFIED AS A
WITNESS FOR THE PROSECUTION, AND MADE THE SAME MOTION WHEN SIMMONS
TESTIFIED.  THE BRIEF HEARINGS ON THESE MOTIONS ESTABLISHED THAT BOTH
RISPONE AND SIMMONS HAD IN FACT FREELY MINGLED AND CONVERSED WITH THE
JURORS IN AND OUT OF THE COURTHOUSE DURING THE TRIAL.  (FN6)  THE COURT
DENIED THE MOTIONS, HOWEVER, UPON THE GROUND THAT THERE WAS NO SHOWING
THAT EITHER DEPUTY HAD TALKED WITH ANY MEMBER OF THE JURY ABOUT THE
CASE ITSELF. 

THE COURT DID NOT DIRECT RISPONE OR SIMMONS TO CEASE ASSOCIATING WITH
THE JURY, AND, SO FAR AS THE RECORD SHOWS, THE ASSOCIATION CONTINUED
FOR THE REMAINDER OF THE TRIAL.  AFTER THE JURY RETURNED ITS VERDICT OF
GUILTY, TURNER'S COUNSEL FILED A MOTION FOR A NEW TRIAL UPON
SUBSTANTIALLY THE SAME GROUND AS HAD BEEN URGED IN SUPPORT OF THE
EARLIER MOTIONS FOR A MISTRIAL - THAT THE TWO PRINCIPAL WITNESSES FOR
THE PROSECUTION "WERE IN ACTUAL CHARGE OF THE JURY; THAT THEY WERE
PHYSICALLY PRESENT WITH THE JURORS IN AND OUT OF THE JURY ROOM, IN
AUTOMOBILES AND IN EATING PLACES WITH THE JURY MEMBERS, MINGLING WITH
THE JURORS  ...  ."  THIS MOTION WAS DENIED WITHOUT ANY FURTHER
EVIDENTIARY HEARING, AND TURNER WAS SENTENCED TO DEATH BY
ELECTROCUTION. 

THE BILL OF EXCEPTIONS FILED BY THE TRIAL COURT, UPON WHICH TURNER'S
APPEAL TO THE SUPREME COURT OF LOUISIANA WAS BASED, CLEARLY INCLUDED A
FOURTEENTH AMENDMENT CLAIM.  (FN7)  IN AFFIRMING THE CONVICTION, THE
STATE SUPREME COURT SAID: 

"AS WE HAVE POINTED OUT, UNDER THE JURISPRUDENCE OF THIS COURT UNLESS
THERE IS A SHOWING OF PREJUDICE, A CONVICTION WILL NOT BE SET ASIDE
SIMPLY BECAUSE OFFICERS WHO ARE WITNESSES IN THE CASE HAVE THE JURY
UNDER THEIR CHARGE.  THIS COURT IS INCLINED TO LOOK UPON THE PRACTICE
WITH DISAPPROVAL, HOWEVER, BECAUSE IN SUCH CASES THERE MAY BE PREJUDICE
OF A KIND EXCEEDINGLY DIFFICULT TO ESTABLISH.  THE PRACTICE SHOULD BE
ESPECIALLY CONDEMNED WHERE, FOR INSTANCE, THE TESTIMONY OF THE OFFICER
AND THAT OF THE ACCUSED ARE IN DIRECT CONFLICT AND THE JURY IS CALLED
UPON TO WEIGH THE CREDIBILITY OF EACH, OR WHERE THE OFFICER IS THE
PRINCIPAL PROSECUTING WITNESS."  244 LA., AT 454; 152 SO. 2D, AT 557
558. 

WHILE THUS CASTING ITS JUDGMENT IN TERMS OF STATE LAW, THE COURT'S
AFFIRMANCE OF TURNER'S CONVICTION NECESSARILY REJECTED HIS CLAIM THAT
THE CONDUCT OF THE TRIAL HAD VIOLATED THE FOURTEENTH AMENDMENT.  (FN8)
WE HOLD OTHERWISE WITH RESPECT TO THE FEDERAL CONSTITUTIONAL ISSUE, AND
ACCORDINGLY REVERSE THE JUDGMENT BEFORE US. 

THIS CASE DOES NOT INVOLVE THE QUESTION WHETHER THE FOURTEENTH
AMENDMENT REQUIRES A STATE TO ACCORD A JURY TRIAL TO A DEFENDANT
CHARGED WITH MURDER.  (FN9)  THE QUESTION, RATHER, GOES TO THE NATURE
OF THE JURY TRIAL WHICH THE FOURTEENTH AMENDMENT COMMANDS WHEN TRIAL BY
JURY IS WHAT THE STATE HAS PURPORTED TO ACCORD.  WE HAD OCCASION TO
CONSIDER THIS BASIC QUESTION LESS THAN FOUR YEARS AGO IN IRVIN V. DOWD,
366 U.S. 717.  THAT CASE DID NOT INVOLVE THE CONDUCT OF THE TRIAL
ITSELF, FOR THERE WE FOUND THAT THE CONVICTION COULD NOT
CONSTITUTIONALLY STAND BECAUSE THE JURY HAD BEEN INFECTED BY PREJUDICE
BEFORE THE ACTUAL TRIAL PROCEEDINGS HAD COMMENCED.  BUT WHAT THE COURT
SAID IN THAT CASE IS CONTROLLING HERE: 

"IN ESSENCE, THE RIGHT TO JURY TRIAL GUARANTEES TO THE CRIMINALLY
ACCUSED A FAIR TRIAL BY A PANEL OF IMPARTIAL, 'INDIFFERENT' JURORS. 
THE FAILURE TO ACCORD AN ACCUSED A FAIR HEARING VIOLATES EVEN THE
MINIMAL STANDARDS OF DUE PROCESS.  IN RE OLIVER, 333 U.S. 257; TUMEY V.
OHIO, 273 U.S. 510.  'A FAIR TRIAL IN A FAIR TRIBUNAL IS A BASIC
REQUIREMENT OF DUE PROCESS.'  IN RE MURCHISON, 349 U.S. 133, 136.  IN
THE ULTIMATE ANALYSIS, ONLY THE JURY CAN STRIP A MAN OF HIS LIBERTY OR
HIS LIFE.  IN THE LANGUAGE OF LORD COKE, A JUROR MUST BE AS
'INDIFFERENT AS HE STANDS UNSWORNE.'  CO. LITT.  155B.  HIS VERDICT
MUST BE BASED UPON THE EVIDENCE DEVELOPED AT THE TRIAL.  CF. THOMPSON
V. CITY OF LOUISVILLE, 362 U.S. 199.  THIS IS TRUE, REGARDLESS OF THE
HEINOUSNESS OF THE CRIME CHARGED, THE APPARENT GUILT OF THE OFFENDER OR
THE STATION IN LIFE WHICH HE OCCUPIES.  IT WAS SO WRITTEN INTO OUR LAW
AS EARLY AS 1807 BY CHIEF JUSTICE MARSHALL IN 1 BURR'S TRIAL 416  ...
."  366 U.S., AT 722. 

THE REQUIREMENT THAT A JURY'S VERDICT "MUST BE BASED UPON THE
EVIDENCE DEVELOPED AT THE TRIAL" GOES TO THE FUNDAMENTAL INTEGRITY OF
ALL THAT IS EMBRACED IN THE CONSTITUTIONAL CONCEPT OF TRIAL BY JURY. 
(FN10)  "THE JURY IS AN ESSENTIAL INSTRUMENTALITY - AN APPENDAGE - OF
THE COURT, THE BODY ORDAINED TO PASS UPON GUILT OR INNOCENCE.  EXERCISE
OF CALM AND INFORMED JUDGMENT BY ITS MEMBERS IS ESSENTIAL TO PROPER
ENFORCEMENT OF LAW."  SINCLAIR V. UNITED STATES, 279 U.S. 749, 765. 
MR. JUSTICE HOLMES STATED NO MORE THAN A TRUISM WHEN HE OBSERVED THAT
"ANY JUDGE WHO HAS SAT WITH JURIES KNOWS THAT IN SPITE OF FORMS THEY
ARE EXTREMELY LIKELY TO BE IMPREGNATED BY THE ENVIRONING ATMOSPHERE." 
FRANK V. MANGUM, 237 U.S. 309, AT 349 (DISSENTING OPINION). 

IN THE CONSTITUTIONAL SENSE, TRIAL BY JURY IN A CRIMINAL CASE
NECESSARILY IMPLIES AT THE VERY LEAST THAT THE "EVIDENCE DEVELOPED
AGAINST A DEFENDANT SHALL COME FROM THE WITNESS STAND IN A PUBLIC
COURTROOM WHERE THERE IS FULL JUDICIAL PROTECTION OF THE DEFENDANT'S
RIGHT OF CONFRONTATION, OF CROSS-EXAMINATION, AND OF COUNSEL.  WHAT
HAPPENED IN THIS CASE OPERATED TO SUBVERT THESE BASIC GUARANTEES OF
TRIAL BY JURY.  IT IS TO BE EMPHASIZED THAT THE TESTIMONY OF VINCENT
RISPONE AND HULON SIMMONS WAS NOT CONFINED TO SOME UNCONTROVERTED OR
MERELY FORMAL ASPECT OF THE CASE FOR THE PROSECUTION.  ON THE CONTRARY,
THE CREDIBILITY WHICH THE JURY ATTACHED TO THE TESTIMONY OF THESE TWO
KEY WITNESSES MUST INEVITABLY HAVE DETERMINED WHETHER WAYNE TURNER WAS
TO BE SENT TO HIS DEATH.  TO BE SURE, THEIR CREDIBILITY WAS ASSAILED BY
TURNER'S COUNSEL THROUGH CROSS-EXAMINATION IN OPEN COURT.   BUT THE
POTENTIALITIES OF WHAT WENT ON OUTSIDE THE COURTROOM DURING THE THREE
DAYS OF THE TRIAL MAY WELL HAVE MADE THESE COURTROOM PROCEEDINGS LITTLE
MORE THAN A HOLLOW FORMALITY.  CF.  RIDEAU V. LOUISIANA, 373 U.S. 723. 

IT IS TRUE THAT AT THE TIME THEY TESTIFIED IN OPEN COURT RISPONE AND
SIMMONS TOLD THE TRIAL JUDGE THAT THEY HAD NOT TALKED TO THE JURORS
ABOUT THE CASE ITSELF.  BUT THERE IS NOTHING TO SHOW WHAT THE TWO
DEPUTIES DISCUSSED IN THEIR CONVERSATIONS WITH THE JURORS THEREAFTER. 
AND EVEN IF IT COULD BE ASSUMED THAT THE DEPUTIES NEVER DID DISCUSS THE
CASE DIRECTLY WITH ANY MEMBERS OF THE JURY, IT WOULD BE BLINKING
REALITY NOT TO RECOGNIZE THE EXTREME PREJUDICE INHERENT IN THIS
CONTINUAL ASSOCIATION THROUGHOUT THE TRIAL BETWEEN THE JURORS AND THESE
TWO KEY WITNESSES FOR THE PROSECUTION.  WE DEAL HERE NOT WITH A BRIEF
ENCOUNTER, BUT WITH A CONTINUOUS AND INTIMATE ASSOCIATION THROUGHOUT A
THREE-DAY TRIAL - AN ASSOCIATION WHICH GAVE THESE WITNESSES AN
OPPORTUNITY, AS SIMMONS PUT IT, TO RENEW OLD FRIENDSHIPS AND MAKE NEW
ACQUAINTANCES AMONG THE MEMBERS OF THE JURY.  (FN11) 

IT WOULD HAVE UNDERMINED THE BASIC GUARANTEES OF TRIAL BY JURY TO
PERMIT THIS KIND OF AN ASSOCIATION BETWEEN THE JURORS AND TWO KEY
PROSECUTION WITNESSES WHO WERE NOT DEPUTY SHERIFFS.  BUT THE ROLE THAT
SIMMONS AND RISPONE PLAYED AS DEPUTIES MADE THE ASSOCIATION EVEN MORE
PREJUDICIAL.  FOR THE RELATIONSHIP WAS ONE WHICH COULD NOT BUT FOSTER
THE JURORS' CONFIDENCE IN THOSE WHO WERE THEIR OFFICIAL GUARDIANS
DURING THE ENTIRE PERIOD OF THE TRIAL.  (FN12)  AND TURNER'S FATE
DEPENDED UPON HOW MUCH CONFIDENCE THE JURY PLACED IN THESE TWO
WITNESSES. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE SUPREME
COURT OF LOUISIANA FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  244 LA. 447, 152 SO. 2D 555. 

FN2  376 U.S. 949. 

FN3  OUT OF THE PRESENCE OF THE JURY, TURNER DID TESTIFY UPON THE
ISSUE OF THE VOLUNTARINESS OF HIS CONFESSION, STATING AMONG OTHER
THINGS THAT HE HAD HAD NO SLEEP AND NOTHING TO EAT FOR A PERIOD OF 48
HOURS BEFORE HE CONFESSED, BUT HE WAS NOT IN CUSTODY DURING MUCH OF
THAT PERIOD.  HE ALSO STATED THAT HE WAS NOT ADVISED OF HIS "LEGAL
RIGHTS" BEFORE HE CONFESSED. 

FN4  "FROM THE MOMENT OF THE ACCEPTANCE OF ANY JUROR UNTIL THE
RENDITION OF VERDICT OR THE ENTRY OF A MISTRIAL, AS THE CASE MAY BE,
THE JURORS SHALL BE KEPT TOGETHER UNDER THE CHARGE OF AN OFFICER IN
SUCH A WAY AS TO BE SECLUDED FROM ALL OUTSIDE COMMUNICATION; PROVIDED
THAT IN CASES NOT CAPITAL THE JUDGE MAY, IN HIS DISCRETION, PERMIT THE
JURORS TO SEPARATE AT ANY TIME BEFORE THE ACTUAL DELIVERY OF HIS
CHARGE."  LA. REV. STAT. SEC. 15:394. 

FN5  IN ADJOURNING COURT AFTER THE FIRST DAY OF TRIAL, THE JUDGE TOLD
THE JURY:  "ANYTHING THAT YOU NEED YOU WILL HAVE TO OBTAIN THROUGH THE
DEPUTY, AND ANY CALLS THAT YOU WANT TO MAKE THE DEPUTIES WILL HAVE TO
MAKE FOR YOU." 

FN6  RISPONE TESTIFIED IN PART AS FOLLOWS: 

"Q. HAVE YOU BEEN ASSISTING THE OTHER DEPUTIES DURING THE COURSE OF
THIS TRIAL, IN RETIRING THE JURY AND IN CARING FOR THEIR NEEDS?  A. I
HAVE. 

"Q.  AS MUCH AS ANY OTHER DEPUTY ON THE SHERIFF'S STAFF?  A. I WOULD
SAY AS MUCH. 

"Q.  ISN'T IT A FACT THAT YOU HAVE BEEN SITTING IN THIS VICINITY
THROUGH THE COURSE OF THE TRIAL?  A.  THAT IS A FACT. 

"Q.  HAVE YOU SPOKEN AT ANY TIME DURING THE COURSE OF THE TRIAL TO
ANY OF THE JURORS?  ABOUT ANYTHING?  A. ABOUT ANYTHING? 

"BY THE COUNSEL:  YES.  A. I HAVE. 

"Q.  IN CONNECTION WITH PROVIDING FOR THEIR NEEDS  ...  SEEING THAT
THEY WERE COMFORTABLE  ... SHOWING THEM WHEN TO GO INTO THE JURY ROOM
ET CETERA?  A. YES." 

SIMMONS TESTIFIED IN PART AS FOLLOWS: 

"Q.  DY. SIMMONS HAVE YOU BEEN WITH THE JURY DURING THE COURSE OF
THIS TRIAL?  A. I HAVE BEEN WITH THEM, YES SIR. 

"Q.  ON HOW MANY OCCASIONS, DO YOU KNOW?  A. I CAN'T ANSWER THAT. 

"Q.  A NUMBER OF OCCASIONS?  A. I HAVE BEEN WITH THEM OR AROUND THEM
THROUGHOUT THE TRIAL. 

"Q.  SPEAKING TO THEM ABOUT VARIOUS AND SUNDRY MATTERS?  A. YES SIR. 

"Q.  HAVE YOU EVER DISCUSSED THIS CASE WITH ANY ONE OF THEM?  A. NO
SIR. 

"Q.  BUT YOU HAVE SPOKEN TO THEM?  A. I HAVE TALKED TO THEM, YES
SIR. 

"Q.  MADE THE ACQUAINTANCE OF SOME OF THEM?  A. I KNEW MOST OF THEM. 

"Q.  BUT, YOU HAVE MADE NEW ACQUAINTANCES?  A. I WOULD SAY YES.  ONE
OF TWO THAT I DIDN'T KNOW. 

"Q.  DO YOU GET ALONG WELL WITH THE JURY MEMBERS?  A. I TRY TO GET
ALONG WITH EVERBODY: 

"Q.  THERE HAS BEEN NO FRICTION IN YOUR RELATIONSHIP DURING THESE
LAST TWO DAYS?  A. NOT AS FAR AS I KNOW SIR. 

"Q.  HAVE YOU STAYED HERE ANY NIGHT AND WATCHED OVER THE JURY?  A. NO
SIR. 

"Q.  HAVE YOU HAD SEVERAL MEALS WITH THE JURY?  A. I HAVE HAD AT
LEAST TWO MEALS WITH THEM. 

"Q.  SITTING AT THE SAME TABLE WITH THEM?  A. THAT IS CORRECT. 

"Q.  YOU HAVE RIDDEN IN AUTOMOBILIES WITH THEM TO AND FROM THE
RESTAURANT?  A. I HAVE.    "Q.  DY. SIMMONS YOU ARE THE CHIEF DEPUTY? 
A. CHIEF CRIMINAL DEPUTY, YES SIR. 

"Q.  AS SUCH YOU HAVE A POSITION SUPERIOR TO THE OTHER DEPUTIES ON
THE STAFF?  IN OTHER WORDS, ARE YOU CONSIDERED THE BOSS OR THE
SUPERVISOR, OR THE SUPERIOR OF THE OTHER DEPUTIES?  A. I MAKE AN EFFORT
TO SUPERVISE THEM, YES SIR. 

"Q.  THAT IS YOUR JOB?  A. THAT IS MY JOB. 

"Q.  IN THE CONDUCT OF THE JURY IS IT NOT TRUE THAT YOU HAVE BEEN IN
CHARGE OF THIS?  A. YES SIR, I WOULD SAY SO. 

"Q.  YOU ARE THE CHIEF DEPUTY SHERIFF HANDLING THE JURY?  A. YES
SIR.  I DESIGNATE CERTAIN DEPUTIES TO DO CERTAIN THINGS WITH THE JURY. 

"Q.  AND SOME OF THE THINGS YOU DO YOURSELF?  A. THAT IS CORRECT." 

FN7  AFTER RECITING IN DETAIL WHAT HAD BEEN SHOWN AS TO RISPONE'S AND
SIMMONS' FRATERNIZATION WITH THE JURORS THROUGHOUT THE TRIAL, THE BILL
OF EXCEPTIONS STATED "THAT THE PRESENCE OF STATE'S WITNESSES, WHETHER
THEY BE DEPUTIES OR NOT, IS OF ITSELF PREJUDICIAL TO THE CONSTITUTIONAL
RIGHTS OF DEFENDANT AND VIOLATIVE OF DUE PROCESS OF LAW." 

FN8  THE COURT'S OPINION DID DISCUSS AND SEEMINGLY RELY ON A CASE
DECIDED BY THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT,
ODELL V. HUDSPETH, 189 F.2D 300.  IN THAT CASE, AN APPEAL FROM A
FEDERAL DISTRICT COURT'S DENIAL OF HABEAS CORPUS TO A PRISONER
CONVICTED IN A KANSAS COURT, IT WAS HELD ON FACTS APPARENTLY SIMILAR TO
THOSE IN THE PRESENT CASE THAT THERE HAD BEEN NO VIOLATION OF THE
FOURTEENTH AMENDMENT. 

FN9  IT APPEARS THAT EVERY STATE CONSTITUTION PROVIDES FOR TRIAL BY
JURY.  SEE, E.G., ALASKA CONST., ART. I, SEC. 11; IDAHO CONST., ART. 1,
SEC. 7; NEVADA CONST., ART. I, SEC. 3; NORTH DAKOTA CONST., ART. I,
SEC. 7; SEE COLUMBIA UNIVERSITY LEGISLATIVE DRAFTING RESEARCH FUND,
INDEX DIGEST OF STATE CONSTITUTIONS, 579 (1959). 

FN10  THE SIXTH AMENDMENT PROVIDES: 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED  ...  ." 

FN11  SEE NOTE 6, SUPRA. 

FN12  SEE NOTES 5 AND 6, SUPRA. 

MR. JUSTICE CLARK, DISSENTING. 

IT IS WITH REGRET THAT I DISSENT IN THIS CASE.  IF I WERE SITTING ON
THE SUPREME COURT OF LOUISIANA I WOULD VOTE TO REVERSE IT AND DO
EVERYTHING POSSIBLE TO PUT A STOP TO THE PRACTICE OF PERMITTING AN
OFFICER WHO TESTIFIES IN A CASE ALSO TO BE IN CHARGE OF THE JURY. 

HOWEVER, I CANNOT SAY THAT WHERE NO PREJUDICE WHATEVER IS SHOWN - AS
IS THE CASE HERE - THE PRACTICE REACHES FEDERAL DUE PROCESS
PROPORTIONS.  I UNDERSTAND THAT IT HAS THE APPROVAL OF THE HIGHEST
COURTS OF A NUMBER OF OTHER JURISDICTIONS (FN1) AND IS RECOGNIZED BY
WHARTON, AMERICAN JURISPRUDENCE AND CORPUS JURIS SECUNDUM.  (FN2)
INDEED, IN A SIMILIAR CASE FROM THE TENTH CIRCUIT, (FN3) IN WHICH THIS
COURT DENIED CERTIORARI IN 1951, THE COURT UPHELD THE CONVICTION ON THE
GROUND THAT THERE WAS NO EVIDENCE THAT A TESTIFYING SHERIFF HAD ACTED
IRREGULARLY IN PERFORMING AS CUSTODIAN OF THE JURY. 

IN VIEW OF THIS WIDESPREAD ACCEPTANCE OF THE PRACTICE I CANNOT SAY
THAT IT IS VIOLATIVE OF THE FOURTEENTH AMENDMENT'S DUE PROCESS CLAUSE. 
CF. MY DISSENT IN RIDEAU V. LOUISIANA, 373 U.S. 723 (1963). 

FN1  E.G., HENDRIX V. STATE, 200 ARK. 973, 141 S.W.2D 852 (1940);
STATE V. HART, 226 N.C. 200, 37 S.E.2D 487 (1946); NEWBY V. STATE, 17
OKLA. CR. R. 291, 188 P. 124 (1920); UNDERWOOD V. STATE, 118 TEX. CR.
R. 348, 39 S.W.2D 45 (1931). 

FN2  5 WHARTON'S CRIMINAL LAW AND PROCEDURE SEC. 2109, AT 290, N. 2
(ANDERSON ED. 1957); 53 AM. JUR., TRIAL, SEC. 858, AT 625; 23A C.J.S.,
CRIMINAL LAW, SEC. 1352, AT 946.  SEE ALSO ANN. CAS. 1912 C, AT 882;
ANN. CAS. 1917 B, AT 254. 
..END :









STANFORD V. TEXAS 379 U.S. 476 


NO. 40.  ARGUED NOVEMBER 12, 1964 - DECIDED JANUARY 18, 1965 - ORDER
VACATED AND CAUSE REMANDED. 


PURSUANT TO A TEXAS STATUTE A DISTRICT JUDGE ISSUED A WARRANT
DESCRIBING PETITIONER'S HOME AND AUTHORIZING THE SEARCH AND SEIZURE
THERE OF "BOOKS, RECORDS, PAMPHLETS, CARDS, RECEIPTS, LISTS, MEMORANDA,
PICTURES, RECORDINGS AND OTHER WRITTEN INSTRUMENTS CONCERNING THE
COMMUNIST PARTY OF TEXAS."  OFFICERS CONDUCTED A SEARCH FOR MORE THAN
FOUR HOURS, SEIZING MORE THAN 2,000 ITEMS, INCLUDING STOCK IN TRADE OF
PETITIONER'S BUSINESS AND PERSONAL BOOKS, PAPERS AND DOCUMENTS, BUT NO
"RECORDS OF THE COMMUNIST PARTY" OR ANY "PARTY LISTS AND DUES
PAUMENTS."  PETITIONER FILED A MOTION WITH THE MAGISTRATE WHO ISSUED
THE WARRANT TO HAVE IT ANNULLED AND THE PROPERTY RETURNED; BUT THE
MOTION WAS DENIED.  HELD:  THE PROTECTIONS OF THE FOURTH AMENDMENT ARE
BY THE FOURTEENTH AMENDMENT GUARANTEED AGAINST INVASION BY THE STATES,
AND THE STATES MAY NOT CONSTITUTIONALLY ISSUE GENERAL WARRANTS WHICH DO
NOT DESCRIBE WITH PARTICULARITY THE THINGS TO BE SEIZED, A REQUIREMENT
OF THE MOST SCRUPULOUS EXACTITUDE WHERE THE SEIZURE ALSO IMPINGES UPON
FIRST AMENDMENT FREEDOMS.  PP. 480-486. 

STANFORD V. TEXAS. 

CERTIORARI TO THE FIFTY-SEVENTH JUDICIAL DISTRICT COURT OF TEXAS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 27, 1963, SEVERAL TEXAS LAW-ENFORCEMENT OFFICERS
PRESENTED THEMSELVES AT THE PETITIONER'S SAN ANTONIO HOME FOR THE
PURPOSE OF SEARCHING IT UNDER AUTHORITY OF A WARRANT ISSUED BY A LOCAL
MAGISTRATE.  BY THE TIME THEY HAD FINISHED, FIVE HOURS LATER, THEY HAD
SEIZED SOME 2,000 OF THE PETITIONER'S BOOKS, PAMPHLETS, AND PAPERS. 
THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE SEARCH AND SEIZURE
WERE CONSTITUTIONALLY VALID. 

THE WARRANT WAS ISSUED UNDER SEC. 9 OF ART. 6889-3A OF THE REVISED
CIVIL STATUTES OF TEXAS.  THAT ARTICLE, ENACTED IN 1955 AND KNOWN AS
THE SUPPRESSION ACT, IS A SWEEPING AND MANY-FACETED LAW WHICH, AMONG
OTHER THINGS, OUTLAWS THE COMMUNIST PARTY AND CREATES VARIOUS
INDIVIDUAL CRIMINAL OFFENSES, EACH PUNISHABLE BY IMPRISONMENT FOR UP TO
20 YEARS.  SECTION 9 AUTHORIZES THE ISSUANCE OF A WARRANT "FOR THE
PURPOSE OF SEARCHING FOR AND SEIZING ANY BOOKS, RECORDS, PAMPHLETS,
CARDS, RECEIPTS, LISTS, MEMORANDA, PICTURES, RECORDINGS, OR ANY WRITTEN
INSTRUMENTS SHOWING THAT A PERSON OR ORGANIZATION IS VIOLATING OR HAS
VIOLATED ANY PROVISION OF THIS ACT."  THE SECTION SETS FORTH VARIOUS
PROCEDURAL REQUIREMENTS, AMONG THEM THAT "IF THE PREMISES TO BE
SEARCHED CONSTITUTE A PRIVATE RESIDENCE, SUCH APPLICATION FOR A SEARCH
WARRANT SHALL BE ACCOMPANIED BY THE AFFIDAVITS OF TWO CREDIBLE
CITIZENS." 

THE APPLICATION FOR THE WARRANT WAS FILED IN A BEXAR COUNTY COURT BY
THE CRIMINAL DISTRICT ATTORNEY OF THAT COUNTY.  IT RECITED THAT THE
APPLICANT: 

"  ...  HAS GOOD REASON TO BELIEVE AND DOES BELIEVE THAT A CERTAIN
PLACE AND PREMISES IN BEXAR COUNTY, TEXAS, DESCRIBED AS TWO WHITE FRAME
HOUSES AND ONE GARAGE, LOCATED AT THE ADDRESS OF 1118 WEST ROSEWOOD, IN
THE CITY OF SAN ANTONIO, BEXAR COUNTY, TEXAS, AND BEING THE PREMISES
UNDER THE CONTROL AND IN CHARGE OF JOHN WILLIAM STANFORD, JR., IS A
PLACE WHERE BOOKS, RECORDS, PAMPHLETS, CARDS, RECEIPTS, LISTS,
MEMORANDA, PICTURES, RECORDINGS AND OTHER WRITTEN INSTRUMENTS
CONCERNING THE COMMUNIST PARTY OF TEXAS, AND THE OPERATIONS OF THE
COMMUNIST PARTY IN TEXAS ARE UNLAWFULLY POSSESSED AND USED IN VIOLATION
OF ARTICLES 6889-3 (FN1) AND 6889-3A, REVISED CIVIL STATUTES OF THE
STATE OF TEXAS, AND THAT SUCH BELIEF OF THIS OFFICER IS FOUNDED UPON
THE FOLLOWING INFORMATION: 

"THAT THIS OFFICER HAS RECEIVED INFORMATION FROM TWO CREDIBLE PERSONS
THAT THE PARTY NAMED ABOVE HAS SUCH BOOKS AND RECORDS IN HIS POSSESSION
WHICH ARE BOOKS AND RECORDS OF THE COMMUNIST PARTY INCLUDING PARTY
LISTS AND DUES PAYMENTS, AND IN ADDITION OTHER ITEMS LISTED ABOVE. 
THAT SUCH INFORMATION IS OF RECENT ORIGIN AND HAS BEEN CONFIRMED BY
RECENT MAILINGS BY STANFORD ON THE 12TH OF DECEMBER, 1963 OF PRO
COMMUNIST MATERIAL." 

ATTACHED TO THE APPLICATION WAS AN AFFIDAVIT SIGNED BY TWO ASSISTANT
ATTORNEYS GENERAL OF TEXAS.  THE AFFIDAVIT REPEATED THE WORDS OF THE
APPLICATION, EXCEPT THAT THE BASIS FOR THE AFFIANTS' BELIEF WAS STATED
TO BE AS FOLLOWS: 

"RECENT MAILINGS BY STANFORD ON THE 12TH OF DECEMBER, 1963, OF
MATERIAL FROM HIS HOME ADDRESS, SUCH MATERIAL BEING IDENTIFIED AS PRO
COMMUNIST MATERIAL AND OTHER INFORMATION RECEIVED IN THE COURSE OF
INVESTIGATION THAT STANFORD HAS IN HIS POSSESSION THE BOOKS AND RECORDS
OF THE TEXAS COMMUNIST PARTY." 

THE DISTRICT JUDGE ISSUED A WARRANT WHICH SPECIFICALLY DESCRIBED THE
PREMISES TO BE SEARCHED, RECITED THE ALLEGATIONS OF THE APPLICANT'S AND
AFFIANTS' BELIEF THAT THE PREMISES WERE "A PLACE WHERE BOOKS, RECORDS,
PAMPHLETS, CARDS, RECEIPTS, LISTS, MEMORANDA, PICTURES, RECORDINGS AND
OTHER WRITTEN INSTRUMENTS CONCERNING THE COMMUNIST PARTY OF TEXAS, AND
THE OPERATIONS OF THE COMMUNIST PARTY IN TEXAS ARE UNLAWFULLY POSSESSED
AND USED IN VIOLATION OF ARTICLE 6889-3 AND ARTICLE 6889-3A, REVISED
CIVIL STATUTES OF THE STATE OF TEXAS," AND ORDERED THE EXECUTING
OFFICERS "TO ENTER IMMEDIATELY AND SEARCH THE ABOVE DESCRIBED PREMISES
FOR SUCH ITEMS LISTED ABOVE UNLAWFULLY POSSESSED IN VIOLATION OF
ARTICLE 6889-3 AND ARTICLE 6889-3A, REVISED CIVIL STATES, STATE OF
TEXAS, AND TO TAKE POSSESSION OF SAME." 

THE WARRANT WAS EXECUTED BY THE TWO ASSISTANT ATTORNEYS GENERAL WHO
HAD SIGNED THE AFFIDAVIT, ACCOMPANIED BY A NUMBER OF COUNTY OFFICERS. 
THEY WENT TO THE PLACE DESCRIBED IN THE WARRANT, WHICH WAS WHERE THE
PETITIONER RESIDED AND CARRIED ON A MAIL ORDER BOOK BUSINESS UNDER THE
TRADE NAME "ALL POINTS OF VIEW."  (FN2)  THE PETITIONER WAS NOT AT HOME
WHEN THE OFFICERS ARRIVED, BUT HIS WIFE WAS, AND SHE LET THE OFFICERS
IN AFTER ONE OF THEM HAD READ THE WARRANT TO HER. 

AFTER SOME DELAY OCCASIONED BY AN UNSUCCESSFUL EFFORT TO LOCATE THE
PETITIONER IN ANOTHER PART OF TOWN, THE SEARCH BEGAN.  UNDER THE
GENERAL SUPERVISION OF ONE OF THE ASSISTANT ATTORNEYS GENERAL THE
OFFICERS SPENT MORE THAN FOUR HOURS IN GATHERING UP ABOUT HALF THE
BOOKS THEY FOUND IN THE HOUSE.  MOST OF THE MATERIAL THEY TOOK CAME
FROM THE STOCK IN TRADE OF THE PETITIONER'S BUSINESS, BUT THEY TOOK A
NUMBER OF BOOKS FROM HIS PERSONAL LIBRARY AS WELL.  THE BOOKS AND
PAMPHLETS TAKEN COMPRISED APPROXIMATELY 300 SEPARATE TITLES, IN
ADDITION TO NUMEROUS ISSUES OF SEVERAL DIFFERENT PERIODICALS.  AMONG
THE BOOKS TAKEN WERE WORKS BY SUCH DIVERSE WRITERS AS KARL MARX, JEAN
PAUL SARTRE, THEODORE DRAPER, FIDEL CASTRO, EARL BROWDER, POPE JOHN
XXIII, AND MR. JUSTICE HUGO L. BLACK.  THE OFFICERS ALSO TOOK
POSSESSION OF MANY OF THE PETITIONER'S PRIVATE DOCUMENTS AND PAPERS,
INCLUDING HIS MARRIAGE CERTIFICATE, HIS INSURANCE POLICIES, HIS
HOUSEHOLD BILLS AND RECEIPTS, AND FILES OF HIS PERSONAL
CORRESPONDENCE.  ALL THIS MATERIAL WAS PACKED INTO 14 CARTONS AND
HAULED OFF TO AN INVESTIGATOR'S OFFICE IN THE COUNTY COURTHOUSE.  THE
OFFICERS DID NOT FIND ANY "RECORDS OF THE COMMUNIST PARTY" OR ANY
"PARTY LISTS AND DUES PAYMENTS." 

THE PETITIONER FILED A MOTION WITH THE MAGISTRATE WHO HAD ISSUED THE
WARRANT, ASKING HIM TO ANNUL THE WARRANT AND ORDER THE RETURN OF ALL
THE PROPERTY WHICH HAD BEEN SEIZED UNDER IT.  THE MOTION ASSERTED
SEVERAL FEDERAL CONSTITUTIONAL CLAIMS.  AFTER A HEARING THE MOTION WAS
DENIED WITHOUT OPINION.  THIS ORDER OF DENIAL WAS, AS THE PARTIES
AGREE, FINAL AND NOT APPEALABLE OR OTHERWISE REVIEWABLE UNDER TEXAS
LAW.  SEE EX PARTE WOLFSON, 127 TEX.  CR. R. 277, 75 S.W.2D 440. 
ACCORDINGLY, WE GRANTED CERTIORARI, 377 U.S. 989.  SEE THOMPSON V. CITY
OF LOUISVILLE, 362 U.S. 199, 202-203. 

THE PETITIONER HAS ATTACKED THE CONSTITUTIONAL VALIDITY OF THIS
SEARCH AND SEIZURE UPON SEVERAL GROUNDS.  WE REST OUR DECISION UPON
JUST ONE, WITHOUT PAUSING TO ASSESS THE SUBSTANTIALITY OF THE OTHERS. 
FOR WE THINK IT IS CLEAR THAT THIS WARRANT WAS A KIND WHICH IT WAS THE
PURPOSE OF THE FOURTH AMENDMENT TO FORBID - A GENERAL WARRANT. 
THEREFORE, EVEN ACCEPTING THE PREMISE THAT SOME OR EVEN ALL OF THE
SUBSTANTIVE PROVISIONS OF ARTICLES 6889-3 AND 6889-3A OF THE REVISED
CIVIL STATUTES OF TEXAS ARE CONSTITUTIONAL AND HAVE NOT BEEN PRE-EMPTED
BY FEDERAL LAW, (FN3) EVEN ACCEPTING THE PREMISE THAT THE WARRANT
SUFFICIENTLY SPECIFIED THE OFFENSE BELIEVED TO HAVE BEEN COMMITTED AND
WAS ISSUED UPON PROBABLE CAUSE, (FN4) THE MAGISTRATE'S ORDER DENYING
THE MOTION TO ANNUL THE WARRANT AND RETURN THE PROPERTY MUST
NONETHELESS BE SET ASIDE. 

IT IS NOW SETTLED THAT THE FUNDAMENTAL PROTECTIONS OF THE FOURTH
AMENDMENT ARE GUARANTEED BY THE FOURTEENTH AMENDMENT AGAINST INVASION
BY THE STATES.  WOLF V. COLORADO, 338 U.S. 25, 27; MAPP V. OHIO, 367
U.S. 643; KER V. CALIFORNIA, 374 U.S. 23.  THE FOURTH AMENDMENT
PROVIDES THAT "NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

THESE WORDS ARE PRECISE AND CLEAR.  THEY REFLECT THE DETERMINATION OF
THOSE WHO WROTE THE BILL OF RIGHTS THAT THE PEOPLE OF THIS NEW NATION
SHOULD FOREVER "BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND
EFFECTS" FROM INTRUSION AND SEIZURE BY OFFICERS ACTING UNDER THE
UNBRIDLED AUTHORITY OF A GENERAL WARRANT.  VIVID IN THE MEMORY OF THE
NEWLY INDEPENDENT AMERICANS WERE THOSE GENERAL WARRANTS KNOWN AS WRITS
OF ASSISTANCE UNDER WHICH OFFICERS OF THE CROWN HAD SO BEDEVILED THE
COLONISTS.  THE HATED WRITS OF ASSISTANCE HAD GIVEN CUSTOMS OFFICIALS
BLANKET AUTHORITY TO SEARCH WHERE THEY PLEASED FOR GOODS IMPORTED IN
VIOLATION OF THE BRITISH TAX LAWS.  THEY WERE DENOUNCED BY JAMES OTIS
AS "THE WORST INSTRUMENT OF ARBITRARY POWER, THE MOST DESTRUCTIVE OF
ENGLISH LIBERTY, AND THE FUNDAMENTAL PRINCIPLES OF LAW, THAT EVER WAS
FOUND IN AN ENGLISH LAW BOOK," BECAUSE THEY PLACED "THE LIBERTY OF
EVERY MAN IN THE HANDS OF EVERY PETTY OFFICER."  THE HISTORIC OCCASION
OF THAT DENUNCIATION, IN 1761 AT BOSTON, HAS BEEN CHARACTERIZED AS
"PERHAPS THE MOST PROMINENT EVENT WHICH INAUGURATED THE RESISTANCE OF
THE COLONIES TO THE OPPRESSIONS OF THE MOTHER COUNTRY.  'THEN AND
THERE,' SAID JOHN ADAMS, 'THEN AND THERE WAS THE FIRST SCENE OF THE
FIRST ACT OF OPPOSITION TO THE ARBITRARY CLAIMS OF GREAT BRITAIN.  THEN
AND THERE THE CHILD INDEPENDENCE WAS BORN.'"  BOYD V. UNITED STATES,
116 U.S. 616, 625. 

BUT WHILE THE FOURTH AMENDMENT WAS MOST IMMEDIATELY THE PRODUCT OF
CONTEMPORARY REVULSION AGAINST A REGIME OF WRITS OF ASSISTANCE, ITS
ROOTS GO FAR DEEPER.  ITS ADOPTION IN THE CONSTITUTION OF THIS NEW
NATION REFLECTED THE CULMINATION IN ENGLAND A FEW YEARS EARLIER OF A
STRUGGLE AGAINST OPPRESSION WHICH HAD ENDURED FOR CENTURIES.  THE STORY
OF THAT STRUGGLE HAS BEEN FULLY CHRONICLED IN THE PAGES OF THIS COURT'S
REPORTS, (FN5) AND IT WOULD BE A NEEDLESS EXERCISE IN PEDANTRY TO
REVIEW AGAIN THE DETAILED HISTORY OF THE USE OF GENERAL WARRANTS AS
INSTRUMENTS OF OPPRESSION FROM THE TIME OF THE TUDORS, THROUGH THE STAR
CHAMBER, THE LONG PARLIAMENT, THE RESTORATION, AND BEYOND. 

WHAT IS SIGNIFICANT TO NOTE IS THAT THIS HISTORY IS LARGELY A HISTORY
OF CONFLICT BETWEEN THE CROWN AND THE PRESS.  IT WAS IN ENFORCING THE
LAWS LICENSING THE PUBLICATION OF LITERATURE AND, LATER, IN
PROSECUTIONS FOR SEDITIOUS LIBEL THAT GENERAL WARRANTS WERE
SYSTEMATICALLY USED IN THE SIXTEENTH, SEVENTEENTH, AND EIGHTEENTH
CENTURIES.  IN TUDOR ENGLAND OFFICERS OF THE CROWN WERE GIVEN ROVING
COMMISSIONS TO SEARCH WHERE THEY PLEASED IN ORDER TO SUPPRESS AND
DESTROY THE LITERATURE OF DISSENT, BOTH CATHOLIC AND PURITAN.  (FN6)
IN LATER YEARS WARRANTS WERE SOMETIMES MORE SPECIFIC IN CONTENT, BUT
THEY TYPICALLY AUTHORIZED THE ARREST AND SEARCH OF THE PREMISES OF ALL
PERSONS CONNECTED WITH THE PUBLICATION OF A PARTICULAR LIBEL, OR THE
ARREST AND SEIZURE OF ALL THE PAPERS OF A NAMED PERSON THOUGHT TO BE
CONNECTED WITH A LIBEL.  (FN7) 

IT WAS IN THE CONTEXT OF THE LATTER KINDS OF GENERAL WARRANTS THAT
THE BATTLE FOR INDIVIDUAL LIBERTY AND PRIVACY WAS FINALLY WON - IN THE
LANDMARK CASES OF WILKES V. WOOD (FN8) AND ENTICK V. CARRINGTON.  (FN9)
THE WILKES CASE AROSE OUT OF THE CROWN'S ATTEMPT TO STIFLE A
PUBLICATION CALLED THE NORTH BRITON, ANONYMOUSLY PUBLISHED BY JOHN
WILKES, THEN A MEMBER OF PARILIAMENT - PARTICULARLY ISSUE NO. 45 OF
THAT JOURNAL.  LORD HALIFAX, AS SECRETARY OF STATE, ISSUED A WARRANT
ORDERING FOUR OF THE KING'S MESSENGERS "TO MAKE STRICT AND DILIGENT
SEARCH FOR THE AUTHORS, PRINTERS, AND PUBLISHERS OF A SEDITIOUS AND
TREASONABLE PAPER, ENTITLED, THE NORTH BRITON, NO. 45,  ...  AND THEM,
OR ANY OF THEM, HAVING FOUND, TO APPREHEND AND SEIZE, TOGETHER WITH
THEIR PAPERS."  (FN10)  "ARMED WITH THEIR ROVING COMMISSION, THEY SET
FORTH IN QUEST OF UNKNOWN OFFENDERS; AND UNABLE TO TAKE EVIDENCE,
LISTENED TO RUMORS, IDLE TALES, AND CURIOUS GUESSES.  THEY HELD IN
THEIR HANDS THE LIBERTY OF EVERY MAN WHOM THEY WERE PLEASED TO
SUSPECT."  (FN11)  HOLDING THAT THIS WAS "A RIDICULOUS WARRANT AGAINST
THE WHOLE ENGLISH NATION," (FN12) THE COURT OF COMMON PLEAS AWARDED
WILKES DAMAGES AGAINST THE SECRETARY OF STATE.  JOHN ENTICK WAS THE
AUTHOR OF A PUBLICATION CALLED MONITOR OR BRITISH FREEHOLDER.  A
WARRANT WAS ISSUED SPECIFICALLY NAMING HIM AND THAT PUBLICATION, AND
AUTHORIZING HIS ARREST FOR SEDITIOUS LIBEL AND THE SEIZURE OF HIS
"BOOKS AND PAPERS."  THE KING'S MESSENGERS EXECUTING THE WARRANT
RANSACKED ENTICK'S HOME FOR FOUR HOURS AND CARTED AWAY QUANTITIES OF
HIS BOOKS AND PAPERS.  IN AN OPINION WHICH THIS COURT HAS CHARACTERIZED
AS A WELLSPRING OF THE RIGHTS NOW PROTECTED BY THE FOURTH AMENDMENT,
(FN13)  LORD CAMDEN DECLARED THE WARRANT TO BE UNLAWFUL.  "THIS POWER,"
HE SAID, "SO ASSUMED BY THE SECRETARY OF STATE IS AN EXECUTION UPON ALL
THE PARTY'S PAPERS, IN THE FIRST INSTANCE.  HIS HOUSE IS RIFLED; HIS
MOST VALUABLE SECRETS ARE TAKEN OUT OF HIS POSSESSION, BEFORE THE PAPER
FOR WHICH HE IS CHARGED IS FOUND TO BE CRIMINAL BY ANY COMPETENT
JURISDICTION, AND BEFORE HE IS CONVICTED EITHER OF WRITING, PUBLISHING,
OR BEING CONCERNED IN THE PAPER."  ENTICK V. CARRINGTON.  (FN14)
THEREAFTER, THE HOUSE OF COMMONS PASSED TWO RESOLUTIONS CONDEMNING
GENERAL WARRANTS, THE FIRST LIMITING ITS CONDEMNATION TO THEIR USE IN
CASES OF LIBEL, AND THE SECOND CONDEMNING THEIR USE GENERALLY.  (FN15) 
THIS IS THE HISTORY WHICH PROMPTED THE COURT LESS THAN FOUR YEARS AGO
TO REMARK THAT "THE USE BY GOVERNMENT OF THE POWER OF SEARCH AND
SEIZURE AS AN ADJUNCT TO A SYSTEM FOR THE SUPPRESSION OF OBJECTIONABLE
PUBLICATIONS IS NOT NEW."  MARCUS V. SEARCH WARRANT, 367 U.S. 717, AT
724.  "THIS HISTORY WAS, OF COURSE, PART OF THE INTELLECTUAL MATRIX
WITHIN WHICH OUR OWN CONSTITUTIONAL FABRIC WAS SHAPED.  THE BILL OF
RIGHTS WAS FASHIONED AGAINST THE BACKGROUND OF KNOWLEDGE THAT
UNRESTRICTED POWER OF SEARCH AND SEIZURE COULD ALSO BE AN INSTRUMENT
FOR STIFLING LIBERTY OF EXPRESSION."  ID., AT 729.  AS MR. JUSTICE
DOUGLAS HAS PUT IT, "THE COMMANDS OF OUR FIRST AMENDMENT (AS WELL AS
THE PROHIBITIONS OF THE FOURTH AND THE FIFTH) REFLECT THE TEACHINGS OF
ENTICK V. CARRINGTON, SUPRA. THESE THREE AMENDMENTS ARE INDEED CLOSELY
RELATED, SAFEGUARDING NOT ONLY PRIVACY AND PROTECTION AGAINST SELF
INCRIMINATION BUT 'CONSCIENCE AND HUMAN DIGNITY AND FREEDOM OF
EXPRESSION AS WELL.'"  FRANK V. MARYLAND, 359 U.S. 360, 376 (DISSENTING
OPINION). 

IN SHORT, WHAT THIS HISTORY INDISPENSABLY TEACHES IS THAT THE
CONSTITUTIONAL REQUIREMENT THAT WARRANTS MUST PARTICULARLY DESCRIBE THE
"THINGS TO BE SIEZED" IS TO BE ACCORDED THE MOST SCRUPULOUS EXACTITUDE
WHEN THE "THINGS" ARE BOOKS, AND THE BASIS FOR THEIR SEIZURE IS THE
IDEAS WHICH THEY CONTAIN.  (FN16)  SEE MARCUS V. SEARCH WARRANT, 367
U.S. 717; A QUANTITY OF BOOKS V. KANSAS, 378 U.S. 205.  NO LESS A
STANDARD COULD BE FAITHFUL TO FIRST AMENDMENT FREEDOMS.  THE
CONSTITUTIONAL IMPOSSIBILITY OF LEAVING THE PROTECTION OF THOSE
FREEDOMS TO THE WHIM OF THE OFFICERS CHARGED WITH EXECUTING THE WARRANT
IS DRAMATICALLY UNDERSCORED BY WHAT THE OFFICERS SAW FIT TO SEIZE UNDER
THE WARRANT IN THIS CASE.  (FN17) 

THE REQUIREMENT THAT WARRANTS SHALL PARTICULARLY DESCRIBE THE THINGS
TO BE SIEZED MAKES GENERAL SEARCHES UNDER THEM IMPOSSIBLE AND PREVENTS
THE SEIZURE OF ONE THING UNDER A WARRANT DESCRIBING ANOTHER.  AS TO
WHAT IS TO BE TAKEN, NOTHING IS LEFT TO THE DISCRETION OF THE OFFICER
EXECUTING THE WARRANT."  MARRON V. UNITED STATES, 275 U.S. 192, AT
196.  WE NEED NOT DECIDE IN THE PRESENT CASE WHETHER THE DESCRIPTION OF
THE THINGS TO BE SEIZED WOULD HAVE BEEN TOO GENERALIZED TO PASS
CONSTITUTIONAL MUSTER, HAD THE THINGS BEEN WEAPONS, NARCOTICS OR "CASES
OF WHISKEY."  SEE STEELE V. UNITED STATES NO. 1, 267 U.S. 498, 504. 
(FN18)  THE POINT IS THAT IT WAS NOT ANY CONTRABAND OF THAT KIND WHICH
WAS ORDERED TO BE SEIZED, BUT LITERARY MATERIAL - "BOOKS, RECORDS,
PAMPHLETS, CARDS, RECEIPTS, LISTS, MEMORANDA, PICTURES, RECORDINGS AND
OTHER WRITTEN INSTRUMENTS CONCERNING THE COMMUNIST PARTY OF TEXAS, AND
THE OPERATIONS OF THE COMMUNIST PARTY IN TEXAS."  THE INDISCRIMINATE
SWEEP OF THAT LANGUAGE IS CONSTITUTIONALLY INTOLERABLE.  TO HOLD
OTHERWISE WOULD BE FALSE TO THE TERMS OF THE FOURTH AMENDMENT, FALSE TO
ITS MEANING, AND FALSE TO ITS HISTORY. 

TWO CENTURIES HAVE PASSED SINCE THE HISTORIC DECISION IN ENTICK V.
CARRINGTON, ALMOST TO THE VERY DAY.  THE WORLD HAS GREATLY CHANGED, AND
THE VOICE OF NONCONFORMITY NOW SOMETIMES SPEAKS A TONGUE WHICH LORD
CAMDEN MIGHT FIND HARD TO UNDERSTAND.  BUT THE FOURTH AND FOURTEENTH
AMENDMENTS GUARANTEE TO JOHN STANFORD THAT NO OFFICIAL OF THE STATE
SHALL RANSACK HIS HOME AND SEIZE HIS BOOKS AND PAPERS UNDER THE
UNBRIDLED AUTHORITY OF A GENERAL WARRANT - NO LESS THAN THE LAW 200
YEARS AGO SHIELDED JOHN ENTICK FROM THE MESSENGERS OF THE KING. 

THE ORDER IS VACATED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  ARTICLE 6889-3 OF THE REVISED CIVIL STATUTES OF TEXAS, ENACTED
IN 1951 AND KNOWN AS THE TEXAS COMMUNIST CONTROL LAW, PROVIDES AMONG
OTHER THINGS, THAT VARIOUS PEOPLE AND ORGANIZATIONS DEFINED BY THE LAW
WHO FAIL TO REGISTER WITH THE TEXAS DEPARTMENT OF PUBLIC SAFETY ARE
GUILTY OF CRIMINAL OFFENSES PUNISHABLE BY IMPRISONMENT OF UP TO 10
YEARS. 

FN2  THE PETITIONER HAD OBTAINED A CERTIFICATE TO TRANSACT BUSINESS
UNDER THIS TRADE NAME IN ACCORDANCE WITH THE TEXAS "ASSUMED NAME LAW." 

FN3  SEE PENNSYLVANIA V. NELSON, 350 U.S. 497. 

FN4  SEE AGUILAR V. TEXAS, 378 U.S. 108. 

FN5  SEE MARCUS V. SEARCH WARRANT, 367 U.S. 717, 724-729; FRANK V.
MARYLAND, 359 U.S. 360, 363-366 AND 376-377 (DISSENTING OPINION); SEE
ALSO BOYD V. UNITED STATES, 116 U.S. 616. 

FN6  SEE SIEBERT, FREEDOM OF THE PRESS IN ENGLAND, 1476-1776, PP. 83,
85-86, 97. 

FN7  SEE SIEBERT, SUPRA, PP. 374-376. 

FN8  19 HOW.  ST. TR. 1153 (1763). 

FN9  19 HOW.  ST. TR. 1029 (1765). 

FN10  SEE LASSON, DEVELOPMENT OF THE FOURTH AMENDMENT, P. 43. 

FN11  II MAY'S CONSTITUTIONAL HISTORY OF ENGLAND, 246 (AM. ED.
1864). 

FN12  ID., AT 247. 

FN13  "AS EVERY AMERICAN STATESMAN, DURING OUR REVOLUTIONARY AND
FORMATIVE PERIOD AS A NATION, WAS UNDOUBTEDLY FAMILIAR WITH THIS
MONUMENT OF ENGLISH FREEDOM, AND CONSIDERED IT AS THE TRUE AND ULTIMATE
EXPRESSION OF CONSTITUTIONAL LAW, IT MAY BE CONFIDENTLY ASSERTED THAT
ITS PROPOSITIONS WERE IN THE MINDS OF THOSE WHO FRAMED THE FOURTH
AMENDMENT TO THE CONSTITUTION  ...  ."  BOYD V. UNITED STATES, 116 U.S.
616, AT 626-627. 

FN14  19 HOW.  ST. TR., AT 1064. 

FN15  SEE XVI HANSARD'S PARLIAMENTARY HISTORY OF ENGLAND 207 ET SEQ. 

FN16  THE WORD "BOOKS" IN THE CONTEXT OF A PHRASE LIKE "BOOKS AND
RECORDS" HAS, OF COURSE, A QUITE DIFFERENT MEANING.  A "BOOK" WHICH IS
NOT MORE THAN A LEDGER OF AN UNLAWFUL ENTERPRISE THUS MIGHT STAND ON A
QUITE DIFFERENT CONSTITUTIONAL FOOTING FROM THE BOOKS INVOLVED IN THE
PRESENT CASE.  SEE MARRON V. UNITED STATES, 275 U.S. 192, 198-199.  AND
IN SOME SITUATIONS BOOKS EVEN OF THE KIND SEIZED HERE MIGHT, FOR
PURPOSES OF THE FOURTH AMENDMENT, BE CONSTITUTIONALLY INDISTINGUISHABLE
FROM OTHER GOODS - E.G., IF THE BOOKS WERE STOLEN PROPERTY. 

FN17  SEE PP. 479-480, SUPRA. 

FN18  "THE AUTHORITY TO THE POLICE OFFICERS UNDER THE WARRANTS ISSUED
IN THIS CASE  ...  POSES PROBLEMS NOT RAISED BY  ...  WARRANTS TO SEIZE
'GAMBLING IMPLEMENTS' AND 'ALL INTOXICATING LIQUORS' ...  .  FOR THE
USE OF THESE WARRANTS IMPLICATES QUESTIONS WHETHER THE PROCEDURES
LEADING TO THEIR ISSUANCE AND SURROUNDING THEIR EXECUTION WERE ADEQUATE
TO AVOID SUPPRESSION OF CONSTITUTIONALLY PROTECTED PUBLICATIONS." 
MARCUS V. SEARCH WARRANT, 367 U.S. 717, AT 731. 
..END :
















JANKOVICH, DBA CALUMET AVIATION CO. V. INDIANA TOLL ROAD COMMISSION 379
U.S. 487 


NO. 60.  ARGUED DECEMBER 10, 1964 - DECIDED JANUARY 18, 1965 -
CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED.  - REPORTED BELOW:  244
IND. 574, 193 N.E.2D 237. 


PETITIONERS, OPERATORS OF A MUNICIPAL AIRPORT, BROUGHT SUIT IN A STATE
COURT FOR INJUNCTIVE RELIEF AND DAMAGES AGAINST RESPONDENT TOLL ROAD
COMMISSION WHICH HAD CONSTRUCTED A TOLL ROAD WHOSE HEIGHT AT A POINT
FROM A PLANNED RUNWAY PETITIONERS CONTENDED EXCEEDED THAT PERMITTED BY
THE MUNICIPAL AIRPORT ZONING ORDINANCE.  THE STATE SUPREME COURT
REVERSED THE TRIAL COURT'S AWARD OF DAMAGES TO PETITIONERS, HOLDING
THAT THE ORDINANCE PURPORTED TO AUTHORIZE AN APPROPRIATION OF PROPERTY
(AIRSPACE) WITHOUT COMPENSATION WHICH WAS UNLAWFUL UNDER THE INDIANA
CONSTITUTION AND UNDER THE FOURTEENTH AMENDMENT.  HELD: 

1.  IN HOLDING THAT THE ORDINANCE EFFECTED A TAKING OF RESPONDENT'S
PROPERTY RIGHT IN THE AIRSPACE ABOVE ITS LAND WITHOUT COMPENSATION, THE
STATE SUPREME COURT RESTED ITS DECISION UPON INDEPENDENT AND ADEQUATE
STATE GROUNDS, EVEN THOUGH IT ALSO RELIED ON SIMILAR FEDERAL GROUNDS,
AND THIS COURT IS THEREFORE DEPRIVED OF JURISDICTION TO REVIEW THE
STATE COURT JUDGMENT.  PP. 489-492. 

2.  THE STATE COURT DECISION IS COMPATIBLE WITH THE FEDERAL AIRPORT
ACT WHICH DOES NOT DEFEAT THIS RESPONDENT'S RIGHT UNDER STATE LAW TO
COMPENSATION FOR THE TAKING OF AIRSPACE.  PP. 493-495. 

JANKOVICH ET AL., DOING BUSINESS AS CALUMET AVIATION CO. V. INDIANA TOLL
ROAD COMMISSION. 

CERTIORARI TO THE SUPREME COURT OF INDIANA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PURSUANT TO A 20-YEAR LEASE WITH THE CITY OF GARY, INDIANA,
PETITIONERS ARE THE OPERATORS OF GARY MUNICIPAL AIRPORT, ONE OF THE
AIRPORTS INCLUDED IN THE NATIONAL AIRPORT PLAN.  THEY SEEK REVIEW OF A
DECISION INVALIDATING THE CITY'S AIRPORT ZONING ORDINANCE, WHICH, WITH
REGARD TO BUILDINGS AND OTHER STRUCTURES IN THE IMMEDIATE VICINITY OF
THE AIRPORT, PRESCRIBES HEIGHT LIMITATIONS BASED UPON A 40-TO-1 GLIDE
ANGLE FOR APPROACHING AIRCRAFT (I.E., AT A DISTANCE OF 40 FEET FROM THE
END OF THE PLANNED RUNWAY, STRUCTURES MAY NOT EXCEED ONE FOOT IN
HEIGHT).  AFTER PASSAGE OF THE ORDINANCE, RESPONDENT, THE INDIANA TOLL
ROAD COMMISSION, CONSTRUCTED A TOLL ROAD PARALLEL TO THE SOUTH SIDE OF
THE AIRPORT AND 443 FEET FROM THE END OF THE PLANNED RUNWAY. 
CONTENDING THAT AT THAT LOCATION THE ORDINANCE PRESCRIBES A MAXIMUM
HEIGHT OF 18.08 FEET ABOVE THE SURROUNDING LAND AND THAT RESPONDENT'S
TOLL ROAD (WHICH IS RAISED 29.8 FEET ABOVE THE SURROUNDING LAND
SURFACE) VIOLATES THE ORDINANCE, PETITIONERS BROUGHT SUIT IN THE
INDIANA COURTS FOR INJUNCTIVE RELIEF AND DAMAGES.  ALTHOUGH IT REFUSED
TO GRANT AN INJUNCTION, THE TRIAL COURT AWARDED PETITIONERS DAMAGES OF
$164,000 AND COSTS.  THAT JUDGMENT WAS REVERSED BY THE SUPREME COURT OF
INDIANA, WHICH CONCLUDED THAT "THE ORDINANCE PURPORTED TO AUTHORIZE AN
UNLAWFUL AND UNCONSTITUTIONAL APPROPRIATION OF PROPERTY RIGHTS WITHOUT
PAYMENT OF COMPENSATION."  244 IND. 574, 584, 193 N.E.2D 237, 242. 
BECAUSE IT APPEARED THAT THE CASE INVOLVED THE VALIDITY OF AIRPORT
ZONING REGULATIONS UNDER THE FOURTEENTH AMENDMENT OF THE CONSTITUTION
OF THE UNITED STATES AND THEREFORE PRESENTED IMPORTANT QUESTIONS
AFFECTING THE NATIONAL AIRPORT PLAN NOT PREVIOUSLY CONSIDERED BY THIS
COURT, WE GRANTED CERTIORARI.  377 U.S. 942. 

RESPONDENT SUGGESTS, HOWEVER, THAT WE ARE WITHOUT JURISDICTION TO
REVIEW THE JUDGMENT OF THE SUPREME COURT OF INDIANA BECAUSE THAT
JUDGMENT WAS BASED ON AN INDEPENDENT AND ADEQUATE STATE GROUND.  IT IS
UNDOUBTEDLY: 

"'THE SETTLED RULE THAT WHERE THE JUDGMENT OF A STATE COURT RESTS
UPON TWO GROUNDS, ONE OF WHICH IS FEDERAL AND THE OTHER NON-FEDERAL IN
CHARACTER, OUR JURISDICTION FAILS IF THE NON-FEDERAL GROUND IS
INDEPENDENT OF THE FEDERAL GROUND AND ADEQUATE TO SUPPORT THE
JUDGMENT.'  FOX FILM CORP. V. MULLER, 296 U.S. 207, 210."  CRAMP V.
BOARD OF PUBLIC INSTRUCTION, 368 U.S. 278, 281. 

AS WE HAVE CONCLUDED THAT RESPONDENT IS CORRECT IN ITS CONTENTION
THAT THE JUDGMENT SOUGHT TO BE REVIEWED IS SUPPORTED BY AN INDEPENDENT
AND ADEQUATE STATE GROUND, WE DISMISS THE WRIT OF CERTIORARI AS
IMPROVIDENTLY GRANTED. 

IN THE INDIANA SUPREME COURT RESPONDENT RELIED ON THE JUST
COMPENSATION REQUIREMENT OF THE INDIANA CONSTITUTION AS WELL AS ON THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE INDIANA SUPREME
COURT STATED THE ISSUE FOR DECISION AS WHETHER "THE ORDINANCE PURPORTS
TO EFFECT A TAKING OF PRIVATE PROPERTY FOR PUBLIC USE IN VIOLATION OF
THE PROVISIONS OF ARTICLE I, SEC. 21 OF THE INDIANA CONSTITUTION (FN1)
AND THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES."  244 IND., AT 577, 193 N.E.2D, AT 238.  IN RESOLVING THAT
ISSUE, HOWEVER, THE INDIANA SUPREME COURT, QUITE UNDERSTANDABLY, DID
NOT ANALYZE SEPARATELY THE EFFECT OF THE TWO PROVISIONS BUT CONSIDERED
THEM TOGETHER.  FROM THAT FACT PETITIONERS WOULD HAVE US CONCLUDE THAT
THE STATE GROUND OF DECISION - INVALIDITY OF THE ZONING ORDINANCE UNDER
ART. 1, SEC. 21, OF THE INDIANA CONSTITUTION - "IS SO INTERWOVEN WITH
THE OTHER AS NOT TO BE AN INDEPENDENT MATTER  ...  ."  ENTERPRISE
IRRG.  DISTRICT V. CANAL CO., 243 U.S. 157, 164 (DICTUM).  WE CANNOT
AGREE. 

QUOTING BOTH ART. 1, SEC. 21, OF THE INDIANA CONSTITUTION AND SEC. 1
OF THE FOURTEENTH AMENDMENT AND CITING BOTH A DECISION OF THIS COURT,
PENNSYLVANIA COAL CO. V. MAHON, 260 U.S. 393, AND ONE OF ITS OWN
DECISIONS, GENERAL OUTDOOR ADVERTISING CO. V. CITY OF INDIANAPOLIS, 202
IND. 85, 172 N.E. 309 (1930), THE INDIANA SUPREME COURT BEGAN ITS
ANALYSIS WITH THE PROPOSITION THAT PRIVATE PROPERTY MAY NOT BE TAKEN
FOR PUBLIC USE WITHOUT COMPENSATION.  TWO ISSUES WERE SINGLED OUT AS
DETERMINATIVE OF WHETHER THE ORDINANCE UNDER CONSIDERATION VIOLATED
THAT CONSTITUTIONAL PROTECTION:  "(1) WHETHER AIR SPACE ABOVE LAND IS A
CONSTITUTIONALLY PROTECTED PROPERTY RIGHT, AND (2) WHETHER IN THE
INSTANT CASE THERE HAS BEEN A CONSTITUTIONALLY PROSCRIBED TAKING."  244
IND., AT 578, 193 N.E.2D, AT 239. 

IN HOLDING THAT LANDOWNERS DID HAVE A PROTECTED PROPERTY INTEREST IN
THE AIRSPACE ABOVE THEIR LAND, THE COURT FIRST DISCUSSED AN INDIANA
STATUTE, ACT 1927, C. 43, SEC  3, BURNS IND. STAT. ANN. SEC. 14-103
(1950 REPL.)("THE OWNERSHIP OF THE SPACE ABOVE THE LANDS AND WATERS OF
THIS STATE IS DECLARED TO BE VESTED IN THE SEVERAL OWNERS OF THE
SURFACE BENEATH,  ..."), AND PRIOR INTERPRETATION OF STATE LAW, CAPITOL
AIRWAYS, INC. V. INDIANAPOLIS P.&L. CO., 215 IND. 462, 466, 18 N.E.2D
776, 778 (1939)(AIRPORT OPERATOR HAS NO RIGHT TO DAMAGES FROM PUBLIC
UTILITY WHOSE POWER LINE OBSTRUCTS FLIGHT INTO AND OUT OF AIRPORT).  IN
ADDITION, THE INDIANA SUPREME COURT CITED AND DISCUSSED TWO CASES OF
THIS COURT HOLDING LOW ALTITUDE OVERFLIGHTS TO CONSTITUTE A TAKING OF
AN AIR EASEMENT REQUIRING JUST COMPENSATION UNDER THE UNITED STATES
CONSTITUTION.  GRIGGS V. ALLEGHENY COUNTY, 369 U.S.  84; UNITED STATES
V. CAUSBY, 328 U.S. 256.  BUT NOTHING IN THE COURT'S OPINION SUGGESTS
THAT ITS CONCLUSION THAT "IN THE LIGHT OF THE ABOVE AUTHORITIES  ...
THE REASONABLY AND ORDINARY USE OF AIR SPACE ABOVE LAND IS A PROPERTY
RIGHT WHICH CANNOT BE TAKEN WITHOUT THE PAYMENT OF COMPENSATION," 244
IND., AT 581, 193 N.E.2D, AT 240, FLOWS FROM A FEDERAL RATHER THAN A
STATE SOURCE.  INDEED, THE ORGANIZATION AND LANGUAGE OF THE OPINION
INDICATES THAT, AT THE LEAST, STATE LAW IS AN EQUAL GROUND OF
DECISION. 

THE DISCUSSION OF THE SECOND QUESTION - WHETHER THE ORDINANCE EFFECTS
A PROSCRIBED TAKING, AS OPPOSED TO A REASONABLE REGULATION UNDER THE
POLICE POWER - SIMILARLY INTERLACES INDIANA AND FEDERAL DECISIONS, AS
WELL AS DECISIONS OF OTHER STATE COURTS.  AGAIN THERE IS NOT INTIMATION
THAT THE CONCLUSION THAT THE ORDINANCE ENTAILS "AN UNLAWFUL AND
UNCONSTITUTIONAL APPROPRIATION OF PROPERTY RIGHTS WITHOUT PAYMENT OF
COMPENSATION,"  244 IND., AT 584, 193 N.E.2D, AT 242, IS BASED LESS
FORCEFULLY ON THE INDIANA CONSTITUTION THAN ON THE FOURTEENTH
AMENDMENT. 

IN SUCH CIRCUMSTANCES, EVEN THOUGH A STATE COURT'S OPINION RELIES ON
SIMILAR PROVISIONS IN BOTH THE STATE AND FEDERAL CONSTITUTIONS, THE
STATE CONSTITUTIONAL PROVISION HAS BEEN HELD TO PROVIDE AN INDEPENDENT
AND ADEQUATE GROUND OF DECISION DEPRIVING THIS COURT OF JURISDICTION TO
REVIEW THE STATE JUDGMENT.  NEW YORK CITY V. CENTRAL SAVINGS BANK, 306
U.S. 661, EXPLAINED IN MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551, 556
557; LYNCH V. NEW YORK EX REL. PIERSON, 293 U.S. 52.  THIS IS NOT A
CASE LIKE THOSE CITED BY PETITIONERS WHERE THE LOWER COURT OPINION AS A
WHOLE "LEAVES THE IMPRESSION THAT THE COURT PROBABLY FELT CONSTRAINED
TO RULE AS IT DID BECAUSE OF (DECISIONS APPLYING THE FOURTEENTH
AMENDMENT)," MINNESOTA V. NATIONAL TEA CO., SUPRA, AT 554-555, OR
"BECAUSE IT FELT UNDER COMPULSION OF FEDERAL LAW AS ENUNCIATED BY THIS
COURT SO TO HOLD," MISSOURI EX REL. SOUTHERN R. CO. V. MAYFIELD, 340
U.S. 1, 5, WITH THE RESULT THAT THE STATE AND FEDERAL GROUNDS ARE "SO
INTERWOVEN THAT WE ARE UNABLE TO CONCLUDE THAT THE JUDGMENT RESTS UPON
AN INDEPENDENT INTERPRETATION OF THE STATE LAW," STATE TAX COMM'N V.
VAN COTT, 306 U.S. 511, 514.  SEE ALSO PERKINS V. BENGUET MINING CO.,
342 U.S. 437, 443, 448-449; ENTERPRISE IRRIG.  DISTRICT V. CANAL CO.,
SUPRA.  UNDER OUR SETTLED DECISIONS THE STATE GROUND IN THIS CASE MUST
BE REGARDED AS AN INDEPENDENT AND ADEQUATE GROUND OF DECISION, AND WE
SO HOLD. 

PETITIONERS NEVERTHELESS CONTEND THAT THE STATE GROUND OF DECISION IS
NOT ADEQUATE BECAUSE IT IS INCONSISTENT WITH THE POLICY OF THE FEDERAL
AIRPORT ACT, 60 STAT. 170, AS AMENDED, 49 U.S.C. SEC. 1101 ET SEQ.
(1958 ED. AND SUPP. V), AND THEREFORE FOUNDERS ON THE SUPREMACY
CLAUSE.  (FN2)  THE PREMISES UNDERLYING PETITIONERS' ARGUMENT ARE THAT
THE FEDERAL AIRPORT ACT IS PREDICATED ON A DETERMINATION BY CONGRESS
THAT AIRPORT ZONING IS ESSENTIAL TO ASSURE COMPATIBLE LAND USE IN THE
VICINITY OF AIRPORTS WITHOUT PROHIBITIVE COST AND THAT THE DECISION OF
THE INDIANA SUPREME COURT IN THIS CASE SIGNIFIES THE TOTAL
NULLIFICATION OF AIRPORT ZONING.  WE THINK THE SECOND PREMISE IS
UNFOUNDED.  THE INDIANA SUPREME COURT HAD BEFORE IT A CASE IN WHICH THE
EFFECT OF THE ORDINANCE WAS TO ESTABLISH A MAXIMUM HEIGHT OF 18 FEET
FOR STRUCTURES ON RESPONDENT'S LAND.  ALTHOUGH IT RECOGNIZED THAT
ZONING REGULATIONS MAY BE UPHELD AS A REASONABLE EXERCISE OF THE POLICE
POWER "WHERE THE OWNER OF PROPERTY IS MERELY RESTRICTED IN THE USE AND
ENJOYMENT OF HIS PROPERTY," 244 IND., AT 581, 193 N.E.2D, AT 240-241,
THE COURT HELD THAT A TAKING REQUIRING COMPENSATION - RATHER THAN MERE
REGULATION - WAS EFFECTED HERE BECAUSE "THE CITY OF GARY HAS ATTEMPTED,
BY THE PASSAGE OF THE ORDINANCE UNDER CONSIDERATION, TO TAKE AND
APPROPRIATE TO ITS OWN USE THE ORDINARILY USABLE AIR SPACE OF PROPERTY
ADJACENT TO THE GARY AIRPORT  ...  ."  244 IND., AT 582, 193 N.E.2D, AT
241.  AS WE READ THE OPINION OF THE INDIANA SUPREME COURT, IT CERTAINLY
DOES NOT PORTEND THE WHOLESALE INVALIDATION OF ALL AIRPORT ZONING
LAWS.  AND NO SUBSTANTIAL CLAIM CAN BE MADE THAT CONGRESS INTENDED TO
PRECLUDE SUCH AN APPLICATION OF STATE LAW AS IS INVOLVED IN THE PRESENT
CASE.  ON MARCH 11 OF LAST YEAR CONGRESS DID INDICATE ITS INTEREST IN
FURTHERING AIRPORT ZONING WHEN IT AMENDED SEC. 11 OF THE FEDERAL
AIRPORT ACT TO REQUIRE AS AN ADDITIONAL CONDITION OF APPROVAL OF AN
AIRPORT PROJECT SEEKING FEDERAL AID THAT: 

"(4)  APPROPRIATE ACTION, INCLUDING THE ADOPTION OF ZONING LAWS, HAS
BEEN OR WILL BE TAKEN, TO THE EXTENT REASONABLE, TO RESTRICT THE USE OF
LAND ADJACENT TO OR IN THE IMMEDIATE VICINITY OF THE AIRPORT TO
ACTIVITIES AND PURPOSES COMPATIBLE WITH NORMAL AIRPORT OPERATIONS
INCLUDING LANDING AND TAKE-OFF OF AIRCRAFT."  P.L. 88-280, 1964 U.S.C.
CONG. & ADM. NEWS 514. 

THAT REQUIREMENT, HOWEVER, IS PRESENTLY IMPLEMENTED BY THE FEDERAL
AVIATION AGENCY BY OBTAINING AN ASSURANCE FROM THE PROJECT SPONSOR THAT
HE WILL PREVENT THE CONSTRUCTION OF OBSTRUCTIONS TO AIR NAVIGATION
"EITHER BY THE ACQUISITION AND RETENTION OF EASEMENTS OR OTHER
INTERESTS IN OR RIGHTS FOR THE USE OF LAND OR AIRSPACE OR BY THE
ADOPTION AND ENFORCEMENT OF ZONING REGULATIONS."  FORM FAA-1624, PART
III 7, SPONSOR ASSURANCES.  AND AMOUNTS EXPENDED TO ACQUIRE "LAND OR
INTERESTS THEREIN OR EASEMENTS THROUGH OR OTHER INTERESTS IN AIR SPACE"
ARE AMONG "THE ALLOWABLE PROJECT COSTS" THAT MAY BE RECOMPENSED UNDER
SEC. 13 OF THE FEDERAL AIRPORT ACT, 60 STAT. 177, AS AMENDED, 49 U.S.C.
SEC. 1112(A)(2) (1958 ED., SUPP. V).  APPEARING AS AMICUS CURIAE, THE
UNITED STATES AFFIRMS THAT "THERE IS NO BASIS FOR A CONTENTION THAT
FEDERAL LAW REMOVES STATE LAW RESTRICTIONS ON THE EXERCISE OF THE
ZONING POWER OR DEFEATS ANY STATE LAW RIGHT TO COMPENSATION."  WE
CONCLUDE THAT THE DECISION OF THE SUPREME COURT OF INDIANA IN THIS CASE
IS COMPATIBLE WITH THE CONGRESSIONAL POLICY EMBODIED IN THE FEDERAL
AIRPORT ACT.  (FN3) 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED.  IT IS
SO ORDERED. 

FN1  ART. 1, SEC. 21, IND. CONST.: 

"NO MAN'S PARTICULAR SERVICES SHALL BE DEMANDED, WITHOUT JUST
COMPENSATION.  NO MAN'S PROPERTY SHALL BE TAKEN BY LAW, WITHOUT JUST
COMPENSATION; NOR, EXCEPT IN CASE OF THE STATE, WITHOUT SUCH
COMPENSATION FIRST ASSESSED AND TENDERED." 

FN2  PETITIONERS' PRE-EMPTION ARGUMENT IS NOT PRESSED IN THEIR
PETITION FOR CERTIORARI AS A SEPARATE ISSUE FOR REVIEW BUT ONLY AS
BEARING ON THE ADEQUACY OF THE STATE GROUND OF DECISION.  NOR HAVE
PETITIONERS DEMONSTRATED THAT THIS ISSUE WAS PRESENTED TO THE INDIANA
SUPREME COURT.  IN THIS REGARD PETITIONERS QUOTE THAT COURT'S STATEMENT
THAT "THE FEDERAL GOVERNMENT HAS RECOGNIZED THE REQUIREMENT THAT
EASEMENTS FOR THE GLIDE ANGLE NEEDED FOR LANDING AND TAKE-OFF MUST BE
ACQUIRED BY CONDEMNATION PROCEEDINGS AND PAYMENT OF JUST COMPENSATION,"
244 IND., AT 584, 193 N.E.2D, AT 242, BUT THAT CONCLUSION WAS BASED ON
TWO CASES CONDEMNING EASEMENTS OVER PROPERTY ADJOINING FEDERAL BASES
THAT WERE DECIDED SEVERAL YEARS BEFORE THE RECENT AMENDMENT TO THE
FEDERAL AIRPORT ACT, UNITED STATES V. 48.10 ACRES OF LAND, 144 F. SUPP.
258 (D.C.S.D.N.Y. 1956); UNITED STATES V. 4.43 ACRES OF LAND, 137 F.
SUPP. 567 (D.C.N.D. TEX. 1956), NOT ON ANY ASSESSMENT OF THE POLICY OF
THAT ACT.  THESE CIRCUMSTANCES OF COURSE BAR PETITIONERS FROM SEEKING
REVERSAL OF THE JUDGMENT BELOW ON THE BASIS OF THEIR PRE-EMPTION CLAIM,
AND IT IS THEREFORE QUESTIONABLE WHETHER PETITIONERS MAY ADVANCE THE
SAME ARGUMENT UNDER THE GUISE OF AN ATTACK ON THE ADEQUACY OF THE STATE
GROUND OF DECISION.  WE NEED NOT CONSIDER THIS PROBLEM FURTHER,
HOWEVER, BECAUSE, AS IS EXPLAINED IN THE TEXT, INFRA, THE PRE-EMPTION
CLAIM IS INSUBSTANTIAL.    FN3  NEEDLESS TO SAY, WE EXPRESS NO OPINION
IN THIS CASE REGARDING THE VALIDITY UNDER THE UNITED STATES
CONSTITUTION OF THE CITY'S AIRPORT ZONING ORDINANCE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

ALTHOUGH THE OPINION OF THE SUPREME COURT OF INDIANA RELIES ON STATE
AND FEDERAL PRECEDENTS, I CAN FIND NOWHERE IN ITS OPINION ANY CLEAR
INDICATION OF WHETHER THAT COURT'S ULTIMATE CONCLUSION IS BASED UPON
THE FEDERAL CONSITUTION, THE CONSTITUTION OF INDIANA, OR BOTH. 
THEREFORE, I THINK THE POSTURE OF THIS CASE IS IDENTICAL TO THAT
PRESENTED IN MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551, AND THAT WE
SHOULD, AS THE COURT DID THERE, VACATE THE JUDGMENT OF THE STATE
SUPREME COURT AND REMAND THE CAUSE FOR FURTHER PROCEEDINGS. 

"IT IS IMPORTANT THAT THIS COURT NOT INDULGE IN NEEDLESS
DISSERTATIONS ON CONSTITUTIONAL LAW.  IT IS FUNDAMENTAL THAT STATE
COURTS BE LEFT FREE AND UNFETTERED BY US IN INTERPRETING THEIR STATE
CONSTITUTIONS.  BUT IT IS EQUALLY IMPORTANT THAT AMBIGUOUS OR OBSCURE
ADJUDICATIONS BY STATE COURTS DO NOT STAND AS BARRIERS TO A
DETERMINATION BY THIS COURT OF THE VALIDITY UNDER THE FEDERAL
CONSTITUTION OF STATE ACTION.  INTELLIGENT EXERCISE OF OUR APPELLATE
POWERS COMPELS US TO ASK FOR THE ELIMINATION OF THE OBSCURITIES AND
AMBIGUITIES FROM THE OPINIONS IN SUCH CASES.  ONLY THEN CAN WE
ASCERTAIN WHETHER OR NOT OUR JURISDICTION TO REVIEW SHOULD BE INVOKED. 
ONLY BY THAT PROCEDURE CAN THE RESPONSIBILITY FOR STRIKING DOWN OR
UPHOLDING STATE LEGISLATION BE FAIRLY PLACED.  FOR NO OTHER COURSE
ASSURES THAT IMPORTANT FEDERAL ISSUES, SUCH AS HAVE BEEN ARGUED HERE,
WILL REACH THIS COURT FOR ADJUDICATION; THAT STATE COURTS WILL NOT BE
THE FINAL ARBITERS OF IMPORTANT ISSUES UNDER THE FEDERAL CONSTITUTION;
AND THAT WE WILL NOT ENCROACH ON THE CONSTITUTIONAL JURISDICTION OF THE
STATES.  THIS IS NOT A MERE TECHNICAL RULE NOR A RULE FOR OUR
CONVENIENCE.  IT TOUCHES THE DIVISION OF AUTHORITY BETWEEN STATE COURTS
AND THIS COURT AND IS OF EQUAL IMPORTANCE TO EACH.  ONLY BY SUCH
EXPLICITNESS CAN THE HIGHEST COURTS OF THE STATES AND THIS COURT KEEP
WITHIN THE BOUNDS OF THEIR RESPECTIVE JURISDICTIONS."  309 U.S., AT
557. 
..END :








EL PASO V. SIMMONS 379 U.S. 497 


NO. 38.  ARGUED NOVEMBER 17, 1964 - DECIDED JANUARY 18, 1965 - APPEAL
DISMISSED AND CERTIORARI GRANTED:  320 F.2D 541, REVERSED. 


IN 1910 THE TEXAS STATE LAND BOARD SOLD SOME PUBLIC LAND BY CONTRACT
CALLING FOR A SMALL DOWN PAYMENT PLUS ANNUAL INTEREST AND PRINCIPAL
PAYMENTS.  STATE LAW PROVIDED FOR THE TERMINATION OF THE CONTRACT AND
FORFEITURE OF THE LAND FOR NONPAYMENT OF INTEREST, AND IN SUCH CASE THE
PURCHASER OR HIS VENDEE COULD REINSTATE HIS CLAIM ON WRITTEN REQUEST
AND PAYMENT OF DELINQUENT INTEREST, UNLESS RIGHTS OF THIRD PARTIES
INTERVENED.  IN 1941 THE LAW WAS AMENDED LIMITING REINSTATEMENT RIGHTS
TO FIVE YEARS FROM THE FORFEITURE DATE.  HERE THE LAND WAS FORFEITED IN
1947 AND APPELLEE, WHO THEREAFTER TOOK QUITCLAIM DEEDS TO THE LAND,
FILED FOR REINSTATEMENT AND TENDERED PAYMENT MORE THAN FIVE YEARS
LATER.  HIS APPLICATION WAS DENIED.  THE STATE SOLD THE LAND TO THE
CITY OF EL PASO IN 1955 AND APPELLEE FILED THIS SUIT TO DETERMINE TITLE
THERETO.  THE DISTRICT COURT GRANTED APPELLANT'S MOTION FOR SUMMARY
JUDGMENT ON THE BASIS OF THE 1941 STATUTE.  THE COURT OF APPEALS
REVERSED, RULING THAT THE 1941 LAW IMPAIRED THE OBLIGATION OF CONTRACTS
IN CONTRAVENTION OF ART. I, SEC. 10, OF THE CONSTITUTION, BUT REMANDED
THE CASE TO THE DISTRICT COURT FOR CONSIDERATION OF THE CITY'S DEFENSES
OF LACHES AND ADVERSE POSSESSION.  HELD: 

1.  ALTHOUGH THIS APPEAL WAS IMPROPERLY BROUGHT UNDER 28 U.S.C. SEC.
1254(2), THE COURT TREATS THE PAPERS WHEREON THE APPEAL WAS FILED AS A
PETITION FOR CERTIORARI UNDER 28 U.S.C. SEC. 2103, DISMISSES THE APPEAL
AND GRANTS CERTIORARI.  PP. 501-503. 

2.  IT IS NOT EVERY MODIFICATION OF A CONTRACTUAL PROMISE THAT
IMPAIRS THE OBLIGATION OF A CONTRACT, ANY MORE THAN IT IS EVERY
ALTERATION OF EXISTING REMEDIES THAT VIOLATES THE CONTRACT CLAUSE.  THE
PROHIBITION AGAINST IMPAIRMENT OF THE OBLIGATION OF CONTRACT "IS NOT AN
ABSOLUTE ONE AND IS NOT TO BE READ WITH LITERAL EXACTNESS LIKE A
MATHEMATICAL FORMULA."  HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290
U.S. 398, 428.  PP. 506-508. 

3.  THE STATE HAS RESERVED POWER TO SAFEGUARD THE VITAL INTERESTS OF
ITS PEOPLE, WHICH MAY MODIFY OR AFFECT THE OBLIGATION OF CONTRACT BUT
NOT DESTROY THE CONSTITUTIONAL LIMITATION; AND THE RESERVED POWER AND
THIS LIMITATION MUST BE CONSTRUED IN HARMONY WITH EACH OTHER.  PP. 508
509. 

4.  WITHOUT AFFECTING THE CENTRAL UNDERTAKING OF THE SELLER OR THE
PRIMARY CONSIDERATION FOR THE BUYER'S UNDERTAKING, THE TEXAS STATUTE OF
REPOSE SERVES SIGNIFICANT STATE OBJECTIVES:  CLARIFICATION OF LAND
TITLES, ELIMINATION OF MASSIVE LITIGATION OVER TITLES AND EFFECTIVE
UTILIZATION OF PROPERTY.   HENCE, IT IMPAIRS NO PROTECTED RIGHT UNDER
THE CONTRACT CLAUSE.  PP. 509-517. 

CITY OF EL PASO V. SIMMONS. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

UNDER THE APPLICABLE STATUTES EXISTING IN TEXAS IN 1910, THE YEAR IN
WHICH THE CONTRACTS IN THIS CASE WERE MADE, THE STATE LAND BOARD WAS
AUTHORIZED TO SELL THE PUBLIC LANDS ALLOCATED TO THE PERMANENT FREE
SCHOOL FUND ON LONG-TERM CONTRACTS CALLING FOR A DOWN PAYMENT OF ONE
FORTIETH OF THE PRINCIPAL AND ANNUAL PAYMENT OF INTEREST AND
PRINCIPAL.  THE TIME FOR PAYMENT OF PRINCIPAL WAS EXTENDED PERIODICALLY
AND THE PRINCIPAL WAS NEVER CALLED DUE.  IN THE EVENT OF NONPAYMENT OF
INTEREST, HOWEVER, THE STATUTES AUTHORIZED THE TERMINATION OF THE
CONTRACT AND THE FORFEITURE OF THE LANDS TO THE STATE WITHOUT THE
NECESSITY OF RE-ENTRY OR JUDICIAL PROCEEDINGS, THE LAND AGAIN TO BECOME
A PART OF THE PUBLIC DOMAIN AND TO BE RESOLD FOR THE ACCOUNT OF THE
SCHOOL FUND.  (FN1)  THE PROVISION CHIEFLY IN ISSUE IN THIS CASE
PROVIDED: 

"IN ANY CASES WHERE LANDS HAVE BEEN FORFEITED TO THE STATE FOR THE
NON-PAYMENT OF INTEREST, THE PURCHASERS OR THEIR VENDEES MAY HAVE THEIR
CLAIMS REINSTATED ON THEIR WRITTEN REQUEST, BY PAYING INTO THE TREASURY
THE FULL AMOUNT OF INTEREST DUE ON SUCH CLAIM UP TO THE DATE OF
REINSTATEMENT; PROVIDED, THAT NO RIGHTS OF THIRD PERSONS MAY HAVE
INTERVENED.  IN ALL SUCH CASES THE ORIGINAL OBLIGATIONS AND PENALTIES
SHALL THEREBY BECOME AS BINDING AS IF NO FORFEITURE HAD EVER
OCCURRED."  TEX. GEN. LAWS 1897, CH. 129, ART. 4218F. 

IN 1941, THE FOREGOING PROVISIONS WERE AMENDED.  AMONG OTHER THINGS,
THE OFFERING OF FORFEITED LAND FOR SALE ON A SUBSEQUENT SALE DATE WAS
MADE PERMISSIVE INSTEAD OF MANDATORY AND A PROVISION WAS ADDED STATING
THAT THE RIGHT TO REINSTATE LANDS FORFEITED THEREAFTER "MUST BE
EXERCISED WITHIN FIVE (5) YEARS FROM THE DATE OF THE FORFEITURE."  TEX
GEN.  & SPEC. LAWS 1941, CH. 191, SEC. 3, VERNON'S ANN. CIV. STAT.,
ART. 5326.  IN 1951, THE RIGHT OF REINSTATEMENT WAS LIMITED TO THE LAST
PURCHASER FROM THE STATE AND HIS VENDEES OR HEIRS.  TEX. GEN. & SPEC.
LAWS 1951, CH. 59, SEC. 2, VERNON'S ANN. CIV. STAT., ART. 5326.  (FN2)

IN 1910, CERTAIN PREDECESSORS IN TITLE OF SIMMONS, THE APPELLEE,
EXECUTED THEIR INSTALLMENT CONTRACTS TO PURCHASE SCHOOL LANDS FROM THE
STATE OF TEXAS.  THE ORIGINAL PURCHASERS MADE A DOWN PAYMENT OF ONE
FORTIETH OF THE PRINCIPAL AND MADE ANNUAL INTEREST PAYMENTS.  THE
PURCHASE CONTRACTS WERE ASSIGNED SEVERAL TIMES AND INTEREST PAYMENTS
FELL INTO ARREARS DURING THE FORTIES.  ON JULY 21, 1947, AFTER A NOTICE
OF ARREARS AND REQUEST FOR PAYMENT, THE LAND WAS FORFEITED FOR
NONPAYMENT OF INTEREST.  A NOTICE OF FORFEITURE AND A COPY OF THE 1941
ACT ALLOWING REINSTATEMENT WITHIN FIVE YEARS WERE SENT TO THE LAST
PURCHASER OF RECORD, BUT WERE RETURNED UNCLAIMED.  APPELLEE SIMMONS, A
CITIZEN OF KENTUCKY, THEREAFTER TOOK QUITCLAIM DEEDS TO THE LAND IN
QUESTION AND FILED HIS APPLICATIONS FOR REINSTATEMENT, TENDERING THE
REQUIRED PAYMENTS.  THE APPLICATIONS WERE DENIED BECAUSE THEY HAD NOT
BEEN MADE WITHIN FIVE YEARS OF THE FORFEITURE AS REQUIRED BY THE 1941
STATUTE.  IN 1955, PURSUANT TO SPECIAL LEGISLATION, THE LAND WAS SOLD
BY THE STATE TO THE CITY OF EL PASO.  SIMMONS THEN FILED THIS SUIT IN
THE FEDERAL DISTRICT COURT TO DETERMINE TITLE TO THE LAND IN QUESTION. 
IN ITS ANSWER THE CITY RELIED UPON THE 1941 STATUTE AS BARRING SIMMONS'
CLAIM AND ALSO PLEADED ADVERSE POSSESSION AND LACHES AS ADDITIONAL
DEFENSES.  THE DISTRICT COURT GRANTED THE CITY'S MOTION FOR SUMMARY
JUDGMENT ON THE GROUND OF THE 1941 STATUTE.  (FN3)  THE COURT OF
APPEALS REVERSED, 320 F.2D 541 (C.A. 5TH CIR.), RULING THAT THE RIGHT
TO REINSTATE WAS A VESTED CONTRACTUAL RIGHT AND THAT THE PROHIBITION
AGAINST IMPAIRMENT OF CONTRACTS CONTAINED IN ART. I, SEC. 10, OF THE
CONSTITUTION OF THE UNITED STATES PROHIBITED THE APPLICATION OF THE
1941 STATUTE TO THE CONTRACT HERE IN QUESTION.  WE NOTED PROBABLE
JURISDICTION.  377 U.S. 902.  WE REVERSE. 

                                         I. 

ALTHOUGH NEITHER PARTY HAS RAISED THE ISSUE, WE DEAL AT THE OUTSET
WITH A JURISDICTIONAL MATTER.  THE APPEAL IN THIS CASE IS HERE UNDER 28
U.S.C. SEC. 1254(2) (1958 ED.).  (FN4)  THE COURT OF APPEALS, AFTER
HOLDING THE TEXAS STATUTE UNCONSTITUTIONAL, REMANDED THE CASE TO THE
DISTRICT COURT TO DETERMINE THE CITY'S DEFENSES OF LACHES AND ADVERSE
POSSESSION.  UNDER A PRIOR INTERPRETATION OF SEC. 240(B) OF THE
JUDICIAL CODE, THE PREDECESSOR PROVISION OF SEC. 1254(2), A FINAL
JUDGMENT OR DECREE OF THE COURT OF APPEALS IS NECESSARY TO THE EXERCISE
OF OUR JURISDICTION OVER THE CASE BY WAY OF APPEAL, SLAKER V. O'CONNOR,
278 U.S. 188, WHICH WAS FOLLOWED WITHOUT COMMENT IN SOUTH CAROLINA
ELECTRIC & GAS CO. V. FLEMMING, 351 U.S. 901, AND QUESTIONED BUT NOT
PUT TO REST IN CHICAGO V. ATCHISON, TOPEKA & SANTA FE R. CO., 357 U.S.
77, THE JUDGMENT IN THAT CASE BEING DEEMED A FINAL ONE.  THESE
QUESTIONS UNDER SEC. 1254(2) WERE NEITHER BRIEFED NOR ARGUED IN THIS
CASE AND IT IS NOT APPROPRIATE TO RESOLVE THEM HERE. 

IN 1962 CONGRESS EXPANDED THE SCOPE OF 28 U.S.C. SEC. 2103 TO APPLY
TO APPEALS FROM THE UNITED STATES COURTS OF APPEALS.  (FN5)  THAT
APPEALS AS WELL AS FROM A STATE COURT SHALL NOT BE DISMISSED FOR THAT
REASON ALONE, BUT THAT THE APPEAL PAPERS SHALL BE REGARDED AND ACTED ON
AS A PETITION FOR A WRIT OF CERTIORARI.  THE RESTRICTION IN 28 U.S.C.
SEC. 1254(2) (1958 ED.)  PROVIDING THAT AN APPEAL FROM THE COURT OF
APPEALS "SHALL PRECLUDE REVIEW BY WRIT OF CERTIORARI AT THE INSTANCE OF
SUCH APPELLANT" IS NO BAR TO OUR TREATING THIS CASE AS HERE ON A
PETITION FOR CERTIORARI.  FOR THIS PROVISION MEANS ONLY THAT IF AN
APPEAL IS PROPER AND HAS BEEN TAKEN, CERTIORARI WILL NOT THEREAFTER BE
AVAILABLE; WHERE THE APPEAL IS NOT PROPER, THIS COURT WILL STILL
CONSIDER A TIMELY APPLICATION FOR CERTIORARI.  (FN6)  BRADFORD ELECTRIC
LIGHT CO. V. CLAPPER, 284 U.S. 221.  NO TIMELY APPLICATION FOR
CERTIORARI HAS BEEN FILED IN THE INSTANT CASE.  BUT 28 U.S.C. SEC. 2103
(1958 ED., SUPP. V) NOW REQUIRES THAT WE TREAT THE PAPERS WHEREON THE
APPEAL WAS TAKEN AS A PETITION FOR CERTIORARI.  ACCORDINGLY WE DISMISS
THE APPEAL AND GRANT THE WRIT OF CERTIORARI. 

             II. 

WE TURN TO THE MERITS.  THE CITY SEEKS TO BRING THIS CASE WITHIN THE
LONG LINE OF CASES RECOGNIZING A DISTINCTION BETWEEN CONTRACT
OBLIGATION AND REMEDY AND PERMITTING A MODIFICATION OF THE REMEDY AS
LONG AS THERE IS NO SUBSTANTIAL IMPAIRMENT OF THE VALUE OF THE
OBLIGATION.  STURGES V. CROWNINSHIELD, 4 WHEAT.  122, 200; VON HOFFMAN
V. CITY OF QUINCY, 4 WALL.  535, 553-554; HONEYMAN V. JACOBS, 306 U.S.
539.  MORE SPECIFICALLY, IT INVOKES THREE CASES IN THIS COURT, TWO FROM
TEXAS, THAT HELD IT CONSTITUTIONALLY PERMISSIBLE TO APPLY STATE
STATUTES ALLOWING FORFEITURE OF LAND PURCHASE RIGHTS TO LAND CONTRACTS
BETWEEN PRIVATE PERSONS AND THE STATE MADE WHEN THE LAW DID NOT PROVIDE
FOR FORFEITURE OR PERMITTED IT ONLY UPON COURT ORDER.  WILSON V.
STANDEFER, 184 U.S. 399; WAGGONER V. FLACK, 188 U.S. 595; AIKINS V.
KINGSBURY, 247 U.S. 484.  (FN7)  IN THOSE CASES THE COURT REASONED THAT
THE STATE STATUTES EXISTING WHEN THE CONTRACTS WERE MADE WERE NOT TO BE
CONSIDERED THE EXCLUSIVE REMEDIES AVAILABLE IN THE EVENT OF THE
PURCHASER'S DEFAULT SINCE THERE WAS NO PROMISE, EXPRESS OR IMPLIED, ON
THE PART OF THE STATE NOT TO ENLARGE THE REMEDY OR GRANT ANOTHER IN
CASE OF BREACH. 

THE COURT OF APPEALS REJECTED THE CITY'S CONTENTION.  THE TEXAS
CASES, ACCORDING TO THE COURT OF APPEALS, HOLD THAT THE REINSTATEMENT
PROVISION CONFERS A VESTED RIGHT WHICH IS NOT SUBJECT TO LEGISLATIVE
ALTERNATION.  (FN8)  FROM THIS IT CONCLUDED THAT UNDER STATE LAW THE
FIVE-YEAR LIMITATION ON REINSTATEMENT WAS NOT A MERE MODIFICATION OF
REMEDY BUT A CHANGE IN THE OBLIGATION OF A CONTRACT.  RELYING ON THE
THEORY THAT IT IS STATE LAW THAT DETERMINES THE OBLIGATIONS OF THE
PARTIES, THE COURT OF APPEALS FOUND THAT THE 1941 STATUTE ABROGATED AN
OBLIGATION OF THE CONTRACT AND THUS VIOLATED THE CONTRACT CLAUSE OF THE
CONSTITUTION. 

WE DO NOT PAUSE TO CONSIDER FURTHER WHETHER THE COURT OF APPEALS
CORRECTLY ASCERTAINED THE TEXAS LAW AT THE TIME THESE CONTRACTS WERE
MADE, OR TO CHART AGAIN THE DIVIDING LINE UNDER FEDERAL LAW BETWEEN
"REMEDY" AND "OBLIGATION," OR TO DETERMINE THE EXTENT TO WHICH THIS
LINE IS CONTROLLED BY STATE COURT DECISIONS, DECISIONS OFTEN RENDERED
IN CONTEXTS NOT INVOLVING CONTRACT CLAUSE CONSIDERATIONS.  (FN9)  FOR
IT IS NOT EVERY MODIFICATION OF A CONTRACTUAL PROMISE THAT IMPAIRS THE
OBLIGATION OF CONTRACT UNDER FEDERAL LAW, ANY MORE THAN IT IS EVERY
ALTERATION OF EXISTING REMEDIES THAT VIOLATES THE CONTRACT CLAUSE. 
STEPHENSON V. BINFORD, 287 U.S. 251, 276; STONE V. MISSISSIPPI, 101
U.S. 814, 819; MANIGAULT V. SPRINGS, 199 U.S. 473.  ASSUMING THE
PROVISION FOR REINSTATEMENT AFTER DEFAULT TO BE PART OF THE STATE'S
OBLIGATION, WE DO NOT THINK ITS MODIFICATION BY A FIVE-YEAR STATUTE OF
REPOSE CONTRAVENES THE CONTRACT CLAUSE. 

THE DECISIONS "PUT IT BEYOND QUESTION THAT THE PROHIBITION IS NOT AN
ABSOLUTE ONE AND IS NOT TO BE READ WITH LITERAL EXACTNESS LIKE A
MATHEMATICAL FORMULA," AS CHIEF JUSTICE HUGHES SAID IN HOME BUILDING &
LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 428.  THE BLAISDELL OPINION,
WHICH AMOUNTED TO A COMPREHENSIVE RESTATEMENT OF THE PRINCIPLES
UNDERLYING THE APPLICATION OF THE CONTRACT CLAUSE, MAKES IT QUITE CLEAR
THAT "NOT ONLY IS THE CONSTITUTIONAL PROVISION QUALIFIED BY THE MEASURE
OF CONTROL WHICH THE STATE RETAINS OVER REMEDIAL PROCESSES, BUT THE
STATE ALSO CONTINUES TO POSSESS AUTHORITY TO SAFEGUARD THE VITAL
INTERESTS OF ITS PEOPLE.  IT DOES NOT MATTER THAT LEGISLATION
APPROPRIATE TO THAT END 'HAS THE RESULT OF MODIFYING OR ABROGATING
CONTRACTS ALREADY IN EFFECT.'  STEPHENSON V. BINFORD, 287 U.S. 251,
276.  NOT ONLY ARE EXISTING LAWS READ INTO CONTRACTS IN ORDER TO FIX
OBLIGATIONS AS BETWEEN THE PARTIES, BUT THE RESERVATION OF ESSENTIAL
ATTRIBUTES OF SOVEREIGN POWER IS ALSO READ INTO CONTRACTS AS A
POSTULATE OF THE LEGAL ORDER  ...  .  THIS PRINCIPLE OF HARMONIZING THE
CONSTITUTIONAL PROHIBITION WITH THE NECESSARY RESIDUUM OF STATE POWER
HAS HAD PROGRESSIVE RECOGNITION IN THE DECISIONS OF THIS COURT."  290
U.S., AT 434-435.  MOREOVER, THE "ECONOMIC INTERESTS OF THE STATE MAY
JUSTIFY THE EXERCISE OF ITS CONTINUING AND DOMINANT PROTECTIVE POWER
NOTWITHSTANDING INTERFERENCE WITH CONTRACTS."  ID., AT 437.  THE STATE
HAS THE "SOVEREIGN RIGHT  ... TO PROTECT THE  ...  GENERAL WELFARE OF
THE PEOPLE  ...  .  ONCE WE ARE IN THIS DOMAIN OF THE RESERVE POWER OF
A STATE WE MUST RESPECT THE 'WIDE DISCRETION ON THE PART OF THE
LEGISLATURE IN DETERMINING WHAT IS AND WHAT IS NOT NECESSARY.'"  EAST
NEW YORK SAVINGS BANK V. HAHN, 326 U.S. 230, 232-233.  AS MR. JUSTICE
JOHNSON SAID ON OGDEN V. SAUNDERS, "IT IS THE MOTIVE, THE POLICY, THE
OBJECT, THAT MUST CHARACTERIZE THE LEGISLATIVE ACT, TO AFFECT IT WITH
THE IMPUTATION OF VIOLATING THE OBLIGATION OF CONTRACTS."  12 WHEAT. 
213, 291. 

OF COURSE, THE POWER OF A STATE TO MODIFY OR AFFECT THE OBLIGATION OF
CONTRACT IS NOT WITHOUT LIMIT.  "WHATEVER IS RESERVED OF STATE POWER
MUST BE CONSISTENT WITH THE FAIR INTENT OF THE CONSTITUTIONAL
LIMITATION OF THAT POWER.  THE RESERVED POWER CANNOT BE CONSTRUED SO AS
TO DESTROY THE LIMITATION, NOR IS THE LIMITATION TO BE CONSTRUED TO
DESTROY THE RESERVED POWER IN ITS ESSENTIAL ASPECTS.  THEY MUST BE
CONSTRUED IN HARMONY WITH EACH OTHER.  THIS PRINCIPLE PRECLUDES A
CONSTRUCTION WHICH WOULD PERMIT THE STATE TO ADOPT AS ITS POLICY THE
REPUDIATION OF DEBTS OR THE DESTRUCTION OF CONTRACTS OR THE DENIAL OF
MEANS TO ENFORCE THEM."  BLAISDELL, SUPRA, AT 439.  BUT WE THINK THE
OBJECTS OF THE TEXAS STATUTE MAKE ABUNDANTLY CLEAR THAT IT IMPAIRS NO
PROTECTED RIGHT UNDER THE CONTRACT CLAUSE. 

            III. 

TEXAS, UPON ENTERING THE UNION, RESERVED ITS ENTIRE PUBLIC DOMAIN,
ONE-HALF OF WHICH WAS SET ASIDE UNDER THE 1876 CONSTITUTION TO FINANCE
A UNIVERSAL SYSTEM OF FREE PUBLIC EDUCATION.  (FN10)  THESE LANDS, OVER
42,000,000 ACRES, WERE TO BE SOLD AS QUICKLY AS PRACTICABLE IN ORDER TO
PROVIDE REVENUES FOR THE PUBLIC SCHOOL SYSTEM AND TO ENCOURAGE THE
SETTLEMENT OF THE VAST PUBLIC DOMAIN.  THE TERMS OF SALE WERE
UNDEMANDING AND DESIGNED TO ACCOMPLISH THE WIDESPREAD SALE AND
DEVELOPMENT OF THE PUBLIC DOMAIN.  THE STATE REQUIRED A DOWN PAYMENT OF
ONE-FORTIETH OF THE PURCHASE PRICE, AN ANNUAL PAYMENT OF ONE-FORTIETH
OF PRINCIPAL AND AN ANNUAL PAYMENT OF INTEREST.  (FN11)  THE TERMS WERE
FREQUENTLY MODIFIED IN FAVOR OF PURCHASERS.  PERIODICALLY, DURING THE
COURSE OF ALMOST A CENTURY, THE TIME FOR PAYMENT OF THE NOMINAL
PRINCIPAL AMOUNT WAS EXTENDED.  (FN12)  IN 1919, THE REQUIREMENT THAT
THE PURCHASER SETTLE ON THE LAND OR ADJOINING LAND WAS LIFTED, (FN13)
PROVISIONS ALLOWING FORFEITING PURCHASERS A FIRST OPPORTUNITY TO
REPURCHASE FORFEITED LAND AT A NEWLY APPRAISED VALUE WERE THRICE ADDED,
(FN14) INTEREST IN ARREARS WAS FORGIVEN UNDER ONE OF THESE ACTS, (FN15)
AND RECLASSIFICATION OF LANDS WAS HELD NOT TO DEPRIVE FORFEITING
PURCHASERS, UPON REINSTATEMENT, OF THEIR MINERAL RIGHTS IN THE LAND. 
(FN16)  BUT EVENTUALLY THE EVOLUTION OF A FRONTIER SOCIETY TO A MODERN
STATE, ATTENDED BY THE DISCOVERY OF OIL AND GAS DEPOSITS WHICH LED TO
SPECULATION AND EXPLOITATION OF THE CHANGES IN THE USE AND VALUE OF THE
LANDS, CALLED FORTH AMENDMENTS TO THE TEXAS LAND LAWS MODIFYING THE
CONDITIONS OF SALE IN FAVOR OF THE STATE.  BESIDE INCREASING THE
REQUIRED DOWN PAYMENT FROM ONE-FORTIETH TO ONE-FIFTH OF THE PURCHASE
PRICE, (FN17) THE STATE RESTRICTED THE RIGHT OF REINSTATEMENT TO THE
LAST PURCHASER FROM THE STATE OR HIS ASSIGNS AND REQUIRED THAT THIS
RIGHT BE EXERCISED WITHIN FIVE YEARS FROM THE DATE OF FORFEITURE. 
THE CIRCUMSTANCES BEHIND THE 1941 AMENDMENT ARE WELL DESCRIBED IN THE
REPORTS OF THE COMMISSIONER OF THE GENERAL LAND OFFICE.  THE GENERAL
PURPOSE OF THE LEGISLATION ENACTED IN 1941 WAS TO RESTORE CONFIDENCE IN
THE STABILITY AND INTEGRITY OF LAND TITLES AND TO ENABLE THE STATE TO
PROTECT AND ADMINISTER ITS PROPERTY IN A BUSINESSLIKE MANNER.  1938
1940 REP. 5.  "THE RECORDS OF THE LAND OFFICE SHOW THAT THROUGH THE
YEARS MANY THOUSANDS OF PURCHASE CONTRACTS, COVERING, IN THE AGGREGATE,
MILLIONS OF ACRES OF SCHOOL LAND, HAVE BEEN FORFEITED BY FAILURE OF THE
PURCHASERS TO MEET THE SMALL ANNUAL INTERST PAYMENTS REQUISITE TO THE
MAINTENANCE OF THE CONTRACTS."  ID., AT 11-12.  IN 1939, 15,000 SALES
CONTRACTS WERE FOUND DELINQUENT AND SUBJECT TO FORFEITURE AND THERE
WERE ABOUT 600,000 ACRES OF UNSOLD SURVEYED SCHOOL LANDS, THE MAJOR
PORTION OF WHICH HAD PRODUCED NO REVENUE FOR A DECADE.  IBID.  THIS
STATE OF AFFAIRS WAS PRINCIPALLY ATTRIBUTABLE TO THE OPPORTUNITY FOR
SPECULATION TO WHICH UNLIMITED REINSTATEMENT RIGHTS GAVE RISE. 
FORFEITED PURCHASE CONTRACTS WHICH HAD REMAINED DORMANT FOR YEARS COULD
BE REINSTATED IF AND WHEN THE LAND BECAME POTENTIALLY PRODUCTIVE OF GAS
AND OIL.  WHERE FORFEITED LANDS WERE PURCHASED WITHOUT RESERVATION OF
MINERALS TO THE STATE, AS WAS THE CASE IN RESPECT TO EARLY PURCHASES
BEFORE DISCOVERY OF THE EXTENSIVE MINERAL WEALTH IN THE STATE, ALL OF
THE MINERAL RIGHTS REVERTED TO THE OWNER OF THE REINSTATED CLAIMS,
REGARDLESS OF THE STATE'S LATER ATTEMPTS IN FORFEITED SALES TO SHARE IN
THE MINERAL INTEREST.  GULF PRODUCTION CO. V. STATE, 231 S.W. 124 (TEX.
CIV. APP.).  HENCE THE LAND COMMISSIONER NOTED THAT THE MAJORITY OF
SALES AND RESALES UNDER THE LAW REQUIRING SALE TO THE HIGHEST BIDDER
(FN18) WERE TO PURCHASERS BUYING A "SPECULATIVE OPTION," "TAKEN FOR
POSSIBLE PROFITS ON THE RIGHTS OF THE SURFACE OWNERS TO LEASE THE LAND
FOR OIL AND GAS."  "UNDER SUCH CONDITIONS LANDS WERE BID IN AT HIGHLY
INFLATED PRICES SUCH AS NO ONE WHO EXPECTED TO KEEP THE LAND COULD
AFFORD TO OFFER."  1940-1942 REP. 5.  THE ATTEMPTS TO ASSURE SOME
STABILITY IN LAND SALES THROUGH REPURCHASE ACTS, ALLOWING DELINQUENT
OWNERS A PREFERENTIAL RIGHT TO BUY FORFEITED LAND AT A REAPPRAISED
VALUE, AND, UNDER ONE ACT, WITHOUT PAYMENT OF ACCUMULATED INTEREST IN
ARREARS, PROVED UNSUCCESSFUL, AND EXPENSIVE.  IN REGARD TO ONE OF THE
STATE'S ATTEMPTS TO QUIET TITLES THROUGH A REPURCHASE ACT, THE LAND
COMMISSIONER IN 1925 EXPRESSED THE BELIEF THAT THE "OWNERS CAN REALIZE
SUCH RETURNS FROM THE LANDS AS WILL ENABLE THEM TO PAY INTEREST THEREON
INSTEAD OF CONTINUING THE RECURRING ANNUAL FORFEITURE AND RESALE AND SO
ON INDEFINITELY."  1924-1926 REP. 5.  IN 1939, A NEW COMMISSIONER NOTED
THAT 1,872,326 ACRES HAD BEEN FORFEITED AND 1,195,993 ACRES REPURCHASED
UNDER THE THREE REPURCHASE ACTS.  THE NET LOSS TO THE SCHOOL FUND FROM
REPURCHASES WAS SAID TO BE $1,661,980 PLUS THE LOSS IN INTEREST ARREARS
OF $418,000.  1938-1940 REP. 12. 

NO LESS SIGNIFICANT WAS THE IMBROGLIO OVER LAND TITLES IN TEXAS.  THE
LONG SHADOW CAST BY PERPETUAL REINSTATEMENT GAVE RISE TO A SPATE OF
LITIGATION BETWEEN FORFEITING PURCHASERS AND THE STATE OR BETWEEN ONE
OR MORE FORFEITING PURCHASERS AND OTHER FORFEITING PURCHASERS.  SEE,
E.G., WEAVER V. ROBISON, 114 TEX. 272, 268 S.W. 133; ANDERSON V.
NEIGHBORS, 94 TEX. 236, 59 S.W. 543; MOUND OIL CO. V. TERRELL, 99 TEX.
625, 92 S.W. 451.  WHERE THE SAME LAND HAD BEEN SOLD AND CONTRACTS
FORFEITED SEVERAL TIMES, AS WAS FREQUENTLY THE CASE, THE RIGHT TO
REINSTATE COULD BE EXERCISED BY ANY ONE OF THE FORFEITING PURCHASERS OR
HIS VENDEES.  HOEFER V. ROBISON, 104 TEX. 159, 135 S.W. 371.   CF.
FAULKNER V. LEAR, 258 S.W.2D 147 (TEX. CIV. APP.).  IT WAS THIS
SITUATION TO WHICH THE TEXAS LEGISLATURE ADDRESSED ITSELF IN 1941 AND
IT IS IN LIGHT OF THIS SITUATION THAT WE JUDGE THE VALIDITY OF THE
AMENDMENT. 

THE CONTRACT CLAUSE OF THE CONSTITUTION DOES NOT RENDER TEXAS
POWERLESS TO TAKE EFFECTIVE AND NECESSARY MEASURES TO DEAL WITH THE
ABOVE.  WE NOTE AT THE OUTSET THAT THE PROMISE OF REINSTATEMENT,
WHETHER DEEMED REMEDIAL OR SUBSTANTIVE, WAS NOT THE CENTRAL UNDERTAKING
OF THE SELLER NOR THE PRIMARY CONSIDERATION FOR THE BUYER'S
UNDERTAKING.  SEE WILSON V. STANDEFER, 184 U.S. 399; WAGGONER V. FLACK,
188 U.S. 595; AIKINS V. KINGSBURY, 247 U.S. 484.  UNDER THIS AGREEMENT
THE STATE PROMISED TO TRANSFER TITLE TO THE BUYER UPON HIS PAYMENT OF
THE PURCHASE PRICE; IN TURN THE BUYER WAS OBLIGED TO MAKE A NOMINAL
DOWN PAYMENT OF ONE-FORTIETH OF THE PURCHASE PRICE AND TO MAINTAIN
ANNUAL INTEREST PAYMENTS.  WHERE THE BUYER BREACHED WHAT WAS
PRACTICALLY HIS ONLY OBLIGATION UNDER THE CONTRACT, THE LAND REVERTED
BACK TO THE SCHOOL FUND.  BOYKIN V. SOUTHWEST TEXAS OIL & GAS CO., 256
S.W. 581, AND A RIGHT OF REINSTATEMENT AROSE, CONDITIONED ON THE
STATE'S REFUSAL OR FAILURE TO DISPOSE OF THE LAND BY SALE OR LEASE. 
HOEFER V. ROBISON, 104 TEX. 159, 135 S.W. 371.  WE DO NOT BELIEVE THAT
IT CAN SERIOUSLY BE CONTENDED THAT THE BUYER WAS SUBSTANTIALLY INDUCED
TO ENTER INTO THESE CONTRACTS ON THE BASIS OF A DEFEASIBLE RIGHT TO
REINSTATEMENT IN CASE OF HIS FAILURE TO PERFORM, OR THAT HE INTERPRETED
THAT RIGHT TO BE OF EVERLASTING EFFECT.  AT THE TIME THE CONTRACT WAS
ENTERED INTO THE STATE'S POLICY WAS TO SELL THE LAND AS QUICKLY AS
POSSIBLE, AND THE STATE TOOK MANY STEPS TO INDUCE SALES.  SEE BECTON V.
DUBLIN, 163 S.W.2D 907, 910 (TEX. CIV. APP.).  THUS, FOR EXAMPLE, THE
LAND COMMISSIONER WAS REQUIRED TO RECLASSIFY FORFEITED LANDS BY THE
NEXT SALE DAY AND TO PUBLICIZE WIDELY THE FORFEITURE AND SALE.  WEAVER
V. ROBISON, 114 TEX. 272, 268 S.W. 133.  THIS POLICY CLEARLY INDICATES
THAT THE RIGHT OF REINSTATEMENT WAS NOT CONCEIVED TO BE AN ENDLESS
PRIVILEGE CONFERRED ON DEFAULTING BUYER.  A CONTRARY CONSTRUCTION WOULD
RENDER THE BUYER'S OBLIGATIONS UNDER THE CONTRACT QUITE ILLUSORY WHILE
OBLIGING THE STATE TO TRANSFER THE LAND WHENEVER THE PURCHASER DECIDED
TO COMPLY WITH THE CONTRACT, ALL THIS FOR A NOMINAL DOWN PAYMENT.  WE,
LIKE THE COURT IN FAITOUTE IRON & STEEL CO. V. CITY OF ASBURY PARK, 316
U.S. 502, 514, BELIEVE THAT "THE CONSTITUTION IS 'INTENDED TO PRESERVE
PRACTICAL AND SUBSTANTIAL RIGHTS, NOT TO MAINTAIN THEORIES.'  DAVIS V.
MILLS, 194 U.S. 451, 457." 

THE STATE'S POLICY OF QUICK RESALE OF FORFEITED LANDS DID NOT PROVE
ENTIRELY SUCCESSFUL; FORFEITING PURCHASERS WHO REPURCHASED THE LANDS
AGAIN DEFAULTED AND OTHER PURCHASERS BOUGHT WITHOUT ANY INTENTION OF
COMPLYING WITH THEIR CONTRACTS UNLESS MINERAL WEALTH WAS DISCOVERED. 
THE MARKET FOR LAND CONTRACTED DURING THE DEPRESSION.  1938-1940 REP.
12.  THESE DEVELOPMENTS HARDLY TO BE EXPECTED OR FORESEEN, OPERATED TO
CONFER CONSIDERABLE ADVANTAGES ON THE PURCHASER AND HIS SUCCESSORS AND
A COSTLY AND DIFFICULT BURDEN ON THE STATE.  THIS COURT'S DECISIONS
HAVE NEVER GIVEN A LAW WHICH IMPOSES UNFORESEEN ADVANTAGES OR BURDENS
ON A CONTRACTING PARTY CONSTITUTIONAL IMMUNITY AGAINST CHANGE. 
HONEYMAN V. JACOBS, 306 U.S. 539; GELFERT V. NATIONAL CITY BANK, 313
U.S. 221; EAST NEW YORK SAVINGS BANK V. HAHN, 326 U.S. 230.  LAWS WHICH
RESTRICT A PARTY TO THOSE GAINS REASONABLY TO BE EXPECTED FROM THE
CONTRACT ARE NOT SUBJECT TO ATTACK UNDER THE CONTRACT CLAUSE,
NOTWITHSTANDING THAT THEY TECHNICALLY ALTER AN OBLIGATION OF A
CONTRACT.  THE FIVE-YEAR LIMITATION ALLOWS DEFAULTING PURCHASERS WITH A
BONA FIDE INTEREST IN THEIR LANDS A REASONABLE TIME TO REINSTATE.  IT
DOES NOT AND NEED NOT ALLOW DEFAULTING PURCHASERS WITH A SPECULATIVE
INTEREST IN THE DISCOVERY OF MINERALS TO REMAIN IN ENDLESS DEFAULT
WHILE RETAINING A CLOUD ON TITLE. 

THE CLOUDS ON TITLE ARISING FROM REINSTATEMENT RIGHTS WERE NOT
WITHOUT SIGNIFICANCE TO THE STATE'S VITAL INTEREST IN ADMINSTERING ITS
SCHOOL LANDS TO PRODUCE MAXIMUM REVENUE AND IN UTILIZING ITS PROPERTIES
IN WAYS BEST SUITED TO THE NEEDS OF A GROWING POPULATION.  THE
UNCERTAINTY OF LAND TITLES, THE MASSIVE LITIGATION TO WHICH THIS GAVE
RISE, AND THE PATTERN OF SALE AND FORFEITURE WERE QUITE COSTLY TO THE
SCHOOL FUND AND TO THE DEVELOPMENT OF LAND USE.  TIMELESS REINSTATEMENT
RIGHTS PREVENTED THE STATE FROM MAINTAINING AN ORDERLY SYSTEM OF LAND
SALES AND THE RESULTANT CONFUSION IMPEDED THE EFFECTIVE DISPOSITION OF
LANDS AND UTILIZATION OF MINERAL WEALTH WITHIN THEM.  WHERE SALES BY
THE STATE WERE NOT FEASIBLE OR DESIRABLE, THE STATE WAS PREVENTED FROM
UTILIZING THE LANDS OR PERMITTING ITS SUBDIVISIONS TO UTILIZE THEM BY
THE POSSIBILITY THAT SOME ONE OF SEVERAL PURCHASERS MIGHT AT SOME
UNKNOWABLE FUTURE DATE ASSERT THE RIGHT TO REINSTATEMENT.  IN THIS VERY
CASE, THE LEGISLATURE AUTHORIZED BY SPECIAL ACT THE TRANSFER OF THIS
LAND TO THE CITY OF EL PASO, RESERVING THE MINERALS TO THE STATE, IN
RECOGNITION OF "THE FACT THAT THE CITY OF EL PASO IS IN URGENT NEED OF
EXPANDING ITS SOURCES OF WATER AND OF PROTECTING WATER WELLS PREVIOUSLY
DRILLED," TEX. GEN. & SPEC. LAWS 1955, CH. 278.  THIS TRANSFER WOULD
HAVE BEEN INVALID ABSENT THE 1941 ACT. 

THE PROGRAM ADOPTED AT THE TURN OF THE CENTURY FOR THE SALE,
SETTLEMENT, FORFEITURE, AND REINSTATEMENT OF LAND WAS NOT WHOLLY
EFFECTUAL TO SERVE THE OBJECTIVES OF THE STATE'S LAND PROGRAM MANY
DECADES LATER.  SETTLEMENT WAS NO LONGER THE OBJECTIVE, BUT REVENUES
FOR THE SCHOOL FUND, EFFICIENT UTILIZATION OF PUBLIC LANDS, AND
COMPLIANCE WITH CONTRACTS OF SALE REMAINED VIABLE AND IMPORTANT GOALS,
AS DID THE POLICY OF RELIEVING PURCHASERS FROM THE HARDSHIPS OF
TEMPORARY ADVERSITY.  GIVEN THESE OBJECTIVES AND THE IMPEDIMENTS POSED
TO THEIR FULFILLMENT BY TIMELESS REINSTATEMENT RIGHTS, A STATUTE OF
REPOSE WAS QUITE CLEARLY NECESSARY.  THE MEASURE TAKEN TO INDUCE
DEFAULTING PURCHASERS TO COMPLY WITH THEIR CONTRACTS, REQUIRING PAYMENT
OF INTEREST IN ARREARS WITHIN FIVE YEARS, WAS A MILD ONE INDEED, HARDLY
BURDENSOME TO THE PURCHASER WHO WANTED TO ADHERE TO HIS CONTRACT OF
PURCHASE, BUT NONETHELESS AN IMPORTANT ONE TO THE STATE'S INTEREST. 
THE CONTRACT CLAUSE DOES NOT FORBID SUCH A MEASURE. 

THE JUDGMENT IS REVERSED. 

FN1  THE ACT OF 1895 PROVIDED IN PERTINENT PART: 

"SEC. 11.  IF UPON THE FIRST DAY OF NOVEMBER OF ANY YEAR THE INTEREST
DUE ON ANY OBLIGATION REMAINS UNPAID, THE COMMISSIONER OF THE GENERAL
LAND OFFICE SHALL ENDORSE ON SUCH OBLIGATION 'LAND FORFEITED,' AND
SHALL CAUSE AN ENTRY TO THAT EFFECT TO BE MADE ON THE ACCOUNT KEPT WITH
THE PURCHASER, AND THEREUPON SAID LAND SHALL THEREBY BE FORFEITED TO
THE STATE WITHOUT THE NECESSITY OF RE-ENTRY OR JUDICIAL ASCERTAINMENT,
AND SHALL REVERT TO THE PARTICULAR FUND TO WHICH IT ORIGINALLY
BELONGED, AND BE RESOLD UNDER THE PROVISIONS OF THIS ACT OR ANY FUTURE
LAW:  ...  PROVIDED, FURTHER, THAT NOTHING IN THIS SECTION CONTAINED
SHALL BE CONSTRUED TO INHIBIT THE STATE FROM INSTITUTING SUCH LEGAL
PROCEEDINGS AS MAY BE NECESSARY TO ENFORCE SUCH FORFEITURE, OR TO
RECOVER THE FULL AMOUNT OF THE INTEREST AND SUCH PENALTIES AS MAY BE
DUE THE STATE AT THE TIME SUCH FORFEITURE OCCURRED, OR TO PROTECT ANY
OTHER RIGHT TO SUCH LAND, WHICH SUITS MAY BE INSTITUTED BY THE ATTORNEY
GENERAL OR UNDER HIS DIRECTION, IN THE PROPER COURT OF THE COUNTY IN
WHICH THE LAND LIES OR OF THE COUNTY TO WHICH SUCH COUNTY IS ATTACHED
FOR JUDICIAL PURPOSES:  PROVIDED, THIS SECTION SHALL BE PRINTED ON THE
BACK OF RECEIPT."  TEX.  GEN. LAWS 1895, CH. 47. 

FN2  ART. 5326 NOW READS: 

"IF ANY PORTION OF THE INTEREST ON ANY SALE SHOULD NOT BE PAID WHEN
DUE, THE LAND SHALL BE SUBJECT TO FORFEITURE BY THE COMMISSIONER
ENTERING ON THE WRAPPER CONTAINING THE PAPERS 'LAND FORFEITED,' OR
WORDS OF SIMILAR IMPORT, WITH THE DATE OF SUCH ACTION AND SIGN IT
OFFICIALLY, AND THEREUPON THE LAND AND ALL PAYMENTS SHALL BE FORFEITED
TO THE STATE, AND THE LANDS MAY BE OFFERED FOR SALE ON A SUBSEQUENT
SALE DATE.  IN ANY CASE WHERE LANDS HAVE HERETOFORE BEEN FORFEITED OR
MAY HEREAFTER BE FORFEITED TO THE STATE FOR NON-PAYMENT OF INTEREST,
THE PURCHASERS, OR THEIR VENDEES, HEIRS OR LEGAL REPRESENTATIVES, MAY
HAVE THEIR CLAIMS RE-INSTATED ON THEIR WRITTEN REQUEST BY PAYING INTO
THE TREASURY THE FULL AMOUNT OF INTEREST DUE ON SUCH CLAIM UP TO THE
DATE OF RE-INSTATEMENT, PROVIDED THAT NO RIGHTS OF THIRD PERSONS MAY
HAVE INTERVENED.  THE RIGHT TO RE-INSTATE SHALL BE LIMITED TO THE LAST
PURCHASER FROM THE STATE OR HIS VENDEES OR THEIR HEIRS OR LEGAL
REPRESENTATIVES.  SUCH RIGHT MUST BE EXERCISED WITHIN FIVE (5) YEARS
FROM THE DATE OF THE FORFEITURE  ...  .  IN ALL CASES THE ORIGINAL
OBLIGATIONS AND PENALTIES SHALL THEREBY BECOME AS BINDING AS IF NO
FORFEITURE HAD EVER OCCURRED.  IF ANY PURCHASER SHALL DIE, HIS HEIRS OR
LEGAL REPRESENTATIVES SHALL HAVE ONE (1) YEAR IN WHICH TO MAKE PAYMENT
AFTER THE FIRST DAY OF NOVEMBER NEXT AFTER SUCH DEATH, BEFORE THE
COMMISSIONER SHALL FORFEIT THE LAND BELONGING TO SUCH DECEASED
PURCHASER; AND SHOULD SUCH FORFEITURE BE MADE BY THE COMMISSIONER
WITHIN SAID TIME, UPON PROPER PROOF OF SUCH DEATH BEING MADE, SUCH
FORFEITURE SHALL BE SET ASIDE, PROVIDED THAT NO RIGHTS OF THIRD PERSONS
MAY HAVE INTERVENED.  NOTHING IN THIS ARTICLE SHALL INHIBIT THE STATE
FROM INSTITUTING SUCH LEGAL PROCEEDINGS AS MAY BE NECESSARY TO ENFORCE
SUCH FORFEITURE, OR TO RECOVER THE FULL AMOUNT OF THE INTEREST AND SUCH
PENALTIES AS MAY BE DUE THE STATE AT THE TIME SUCH FORFEITURE OCCURRED,
OR TO PROTECT ANY OTHER RIGHT TO SUCH LAND."    FN3  THE DISTRICT
COURT'S JUDGMENT DOES NOT EXPLICITLY REFER TO THE 1941 STATUTE, BUT THE
COURT OF APPEALS INTERPRETED THAT ACT TO BE THE BASIS OF THE JUDGMENT. 
WE ACCEPT THIS INTERPRETATION. 

FN4  "CASES IN THE COURTS OF APPEALS MAY BE REVIEWED BY THE SUPREME
COURT BY THE FOLLOWING METHODS:  ...  . 

"(2)  BY APPEAL BY A PARTY RELYING ON A STATE STATUTE HELD BY A COURT
OF APPEALS TO BE INVALID AS REPUGNANT TO THE CONSTITUTION, TREATIES OR
LAWS OF THE UNITED STATES, BUT SUCH APPEAL SHALL PRECLUDE REVIEW BY
WRIT OF CERTIORARI AT THE INSTANCE OF SUCH APPELLANT, AND THE REVIEW ON
APPEAL SHALL BE RESTRICTED TO THE FEDERAL QUESTIONS PRESENTED  ...  ." 

FN5  28 U.S.C. SEC. 2103 (1958 ED., SUPP. V) READS: 

"IF AN APPEAL TO THE SUPREME COURT IS IMPROVIDENTLY TAKEN FROM THE
DECISION OF THE HIGHEST COURT OF A STATE, OR OF A UNITED STATES COURT
OF APPEALS, IN A CASE WHERE THE PROPER MODE OF A REVIEW IS BY PETITION
FOR CERTIORARI, THIS ALONE SHALL NOT BE GROUND FOR DISMISSAL; BUT THE
PAPERS WHEREON THE APPEAL WAS TAKEN SHALL BE REGARDED AND ACTED ON AS A
PETITION FOR WRIT OF CERTIORARI AND AS IF DULY PRESENTED TO THE SUPREME
COURT AT THE TIME THE APPEAL WAS TAKEN.  WHERE IN SUCH A CASE THERE
APPEARS TO BE NO REASONABLE GROUND FOR GRANTING A PETITION FOR WRIT OF
CERTIORARI IT SHALL BE COMPETENT FOR THE SUPREME COURT TO ADJUDGE TO
THE RESPONDENT REASONABLE DAMAGES FOR HIS DELAY, AND SINGLE OR DOUBLE
COSTS." 

FN6  THE PREDECESSOR OF SEC. 1254(1), SEC. 240(A) OF THE ACT OF
FEBRUARY 13, 1925 (THE JUDGES ACT), WAS AMENDED ON THE FLOOR OF THE
SENATE TO STATE THAT REVIEW BY CERTIORARI FROM THE COURTS OF APPEALS
WOULD CARRY THE SAME SCOPE OF REVIEW "AS IF THE CAUSE HAD BEEN BROUGHT
THERE BY UNRESTRICTED WRIT OF ERROR OR APPEAL."  THE WORD
"UNRESTRICTED" WAS ADDED IMMEDIATELY BEFORE SEC. 240(B) (NOW SEC.
1254(2)) WAS INTRODUCED, AND THE SPONSOR OF BOTH AMENDMENTS, SENATOR
CUMMINS, EXPLAINED THAT REVIEW BY APPEAL AS PROVIDED IN THAT SECTION
WOULD BE LIMITED "TO THE FEDERAL QUESTION, AND THAT IT OUGHT NOT TO
EXTEND TO THE ENTIRE CONTROVERSY THAT MAY BE IN THE CASE," AS HE
ENVISAGED WOULD BE THE CASE WITH CERTIORARI REVIEW.  SEE 66 CONG. REC.
2919 (REMARKS OF SENATOR CUMMINS). 

FN7  IN WILSON V. STANDEFER, 184 U.S. 399, TEXAS SOLD LAND PURSUANT
TO THE ACT OF 1879, WHICH MADE IT THE DUTY OF THE STATE IN CASE OF
DEFAULT TO PROCEED TO ENFORCE ITS RIGHTS BY COURT ACTION.  THE TEXAS
COURTS ALLOWED THE STATE TO PROCEED WITH FORFEITURE UNDER THE 1897
STATUTE PROVIDING FOR FORFEITURE BY ENDORSEMENT ON OFFICIAL DOCUMENTS
RATHER THAN BY COURT DECREE.  NEITHER THE TEXAS COURTS NOR THIS COURT
READ THE 1879 STATUTE AS PROVIDING AN EXCLUSIVE REMEDY OR AS A PROMISE
BY THE STATE NOT TO MODIFY THE REMEDY OR PROVIDE ANOTHER ONE IN THE
EVENT OF DEFAULT.  WAGGONER V. FLACK, 188 U.S. 595, INVOLVED A CONTRACT
FOR THE SALE OF STATE SCHOOL LANDS AT A TIME WHEN THE EXISTING STATUTES
GAVE THE STATE NO REMEDY AT ALL UPON DEFAULT IN ANNUAL PAYMENTS.  THIS
COURT FOUND NO VIOLATION OF THE CONTRACT CLAUSE IN THE STATE PROCEEDING
TO DECLARE A FORFEITURE UNDER THE 1897 STATUTE.  HERE AGAIN "THERE WAS
NO PROMISE OR CONTRACT EXPRESSED IN THE STATUTE THAT THE STATE WOULD
NOT ENLARGE THE REMEDY OR GRANT ANOTHER ON ACCOUNT OF THE PURCHASER'S
VIOLATION OF HIS CONTRACT, AND WE THINK NO SUCH CONTRACT IS TO BE
IMPLIED."  188 U.S., AT 603.  THE PRINCIPLE OF WILSON V. STANDEFER WAS
HELD CONTROLLING, THE COURT SEEING NO DEFFERENCE IN PRINCIPLE BETWEEN
THE CASE WHERE THE STATE ALTERED AN EXISTING REMEDY AFTER THE CONTRACT
WAS ENTERED INTO AND THE CASE WHERE THE STATE SUPPLIED THE REMEDY WHERE
NONE EXISTED WHEN THE CONTRACT WAS MADE.  THE THIRD CASE CAME HERE FROM
THE CALIFORNIA COURTS, AIKINS V. KINGSBURY, 247 U.S. 484.  THERE THE
COURT FOUND NO VIOLATION OF THE CONTRACT CLAUSE IN THE STATE PROCEEDING
DECLARING A FORFEITURE BY NONJUDICIAL ACTION AS PERMITTED BY A STATUTE
PASSED AFTER THE CONTRACT WAS MADE, THE PRIOR LAW REQUIRING THE STATE
TO PROCEED WITH JUDICIAL ACTION WITH A RIGHT IN THE PURCHASER TO REDEEM
WITHIN 20 DAYS AFTER DECREE.  WILSON AND WAGGONER WERE CONSIDERED
CONTROLLING AUTHORITY. 

FN8  THE STATE CASES ON THIS ISSUE ARE UNCLEAR.  IN FRISTOE V. BLUM,
92 TEX. 76, 45 S.W. 998, THE TEXAS SUPREME COURT HELD THAT THE 1887 ACT
PROVIDING FOR FORFEITURE UPON DEFAULT IN MAKING PAYMENT OF "ANY
OBLIGATION" APPLIED TO CONTRACTS MADE BEFORE AS WELL AS AFTER THE
ENACTMENT OF THE ACT.  SUCH A CONSTRUCTION WAS NOT DEEMED TO IMPAIR THE
OBLIGATION OF CONTRACT, FOR THE STATE HAD BY COMMON LAW THE RIGHT AS
VENDOR, UPON THE PURCHASER'S FAILURE TO PERFORM HIS PART OF THE
CONTRACT, A RIGHT TO RESCIND THE CONTRACT OF SALE AND RESUME CONTROL OF
THE LAND.  THE STATUTE GIVING THE COMMISSIONER AUTHORITY TO DECLARE A
FORFEITURE MERELY SUPPLIED A MORE EFFECTIVE WAY OF ENFORCING THE
STATE'S COMMON-LAW RIGHT OF RESCISSION. 

IN REGARD TO THE RIGHT OF REINSTATEMENT, ANDERSON V. NEIGHBORS, 94
TEX. 236 59 S.W.  543, AND DAVIS V. YATES, 63 TEX. CIV. APP. 6, 133
S.W. 281, HELD THAT INTERVENING THIRD-PARTY RIGHTS MUST BE SO FAR
PERFECTED AS TO BE VESTED IN ORDER TO DEFEAT REINSTATEMENT RIGHTS. 
CRUZAN V. WALKER, 119 TEX. 189, 26 S.W.2D 908, AND FREELS V. WALKER,
120 TEX. 291, 26 S.W.2D 627, ARE OF SIMILAR IMPORT.  HOOKS V. KIRBY, 58
TEX.  CIV. APP. 335, 124 S.W. 156, DEALT WITH THE RIGHT OF THE
PURCHASER OF TIMBER TO PURCHASE THE LAND ITSELF; IT DID NOT DEAL WITH
REINSTATEMENT UNDER THE SECTION HERE INVOLVED.  GULF PRODUCTION CO. V.
STATE, 231 S.W. 124 (TEX. CIV. APP.), THE PRINCIPAL SUPPORT FOR THE
COURT OF APPEALS DECISION, HELD THAT THE LEGISLATURE HAD NOT INTENDED
TO DEFEAT THE RIGHT TO REINSTATEMENT BY RECLASSIFYING THE LAND AS
MINERAL LAND, THE SALE OF WHICH THEN INVOLVED RETENTION OF MINERAL
RIGHTS BY THE STATE.  THE COURT IN GULF DID INDICATE THAT IT CONSIDERED
THE RIGHT TO REINSTATEMENT A VESTED RIGHT WITH WHICH THE STATE COULD
NOT ARBITRARILY INTERFERE.  BUT IT WAS NOT FACED WITH A STATUTE WHICH
ACTUALLY ATTEMPTED TO MODIFY THIS RIGHT, MUCH LESS ONE WHICH PUT A
REASONABLE TIME LIMIT UPON THAT RIGHT.  IN FAULKNER V. LEAR, 258 S.W.2D
147 (TEX. CIV. APP.), A CASE INVOLVING A FORFEITURE UNDER THE 1941
STATUTE, THE TEXAS COURT SAID THAT THE LAND CONTRACT, WHICH WAS MADE
PRIOR TO 1941, "COULD HAVE BEEN REINSTATED ONLY IN COMPLIANCE WITH THE
STATUTE  ...  AS AMENDED IN 1941."  ID., AT 149.  NO CONSTITUTIONAL OR
STATE LAW DIFFICULTIES WERE NOTED. 

IN ADDITION TO THE STATE'S COMMON-LAW RIGHT OF RESCISSION, FRISTOE V.
BLUM, SUPRA, THE FORFEITURE STATUTE STATES THAT NOTHING IN THE
FORFEITURE PROVISION "SHALL BE CONSTRUED TO INHIBIT THE STATE FROM
INSTITUTING SUCH LEGAL PROCEEDINGS AS MAY BE NECESSARY TO ENFORCE SUCH
FORFEITURE, OR TO RECOVER THE FULL AMOUNT OF THE INTEREST AND SUCH
PENALTIES AS MAY BE DUE THE STATE AT THE TIME SUCH FORFEITURE OCCURRED,
OR TO PROTECT ANY OTHER RIGHT TO SUCH LAND."  TEX. GEN. LAWS 1895, CH.
47, SEC. 11.  THIS STATUTORY LANGUAGE SEEMS SUFFICIENTLY BROAD TO
PRESERVE, WITH NOTICE TO PURCHASERS, THE COMMON-LAW RIGHT OF
RESCISSION, WHICH, UNLIKE STATUTORY FORFEITURE, WAS NOT SUBJECT TO
REINSTATEMENT. 

FN9  THE PROVISIONS DEALING WITH FORFEITURE, WHICH IS ONE OF THE
STATE'S REMEDIES IN CASE OF BREACH, AND REINSTATEMENT, WHICH IS THE
PURCHASER'S REMEDY TO CURE HIS BREACH, BOTH OPERATE ON THE RIGHTS OF A
PARTY AFTER BREACH AND THUS CONCERN THE ENFORCEMENT OF THE CONTRACT. 
IN THIS SENSE THEY ARE REMEDIAL AND THE STATUTE OF REPOSE CHALLENGED
HERE IS AN ALTERATION OF REMEDY RATHER THAN OBLIGATION. 

BUT DECISIONS DATING FROM HOME BUILDING & LOAN ASSN. V. BLAISDELL,
290 U.S. 398, HAVE NOT PLACED CRITICAL RELIANCE ON THE DISTINCTION
BETWEEN OBLIGATION AND REMEDY.  AT ISSUE IN BLAISDELL WAS A STATUTE
ENLARGING THE MORTGAGOR'S RIGHT BY EXTENDING THE TIME OF REDEMPTION, A
MEASURE THAT THE STATE COURT CHARACTERIZED AS AN IMPAIRMENT OF THE
OBLIGATION OF THE MORTGAGE CONTRACT.  ID., AT 420.   THUS THE QUESTION
BEFORE THIS COURT WAS WHETHER THIS IMPAIRMENT CONTRAVENED THE CONTRACT
CLAUSE.  THE COURT IN BLAISDELL STATED THAT "'NOTHING CAN BE MORE
MATERIAL TO THE OBLIGATION THAN THE MEANS OF ENFORCEMENT  ...  .  THE
IDEAS OF VALIDITY AND REMEDY ARE INSEPARABLE, AND BOTH ARE PARTS OF THE
OBLIGATION, WHICH IS GUARANTEED BY THE CONSTITUTION.'"  290 U.S., AT
430.  WHILE NOTING THAT A STATE'S CONTROL OVER REMEDIAL PROCESSES IS
ONE JUSTIFICATION FOR MODIFICATION OF THE OBLIGATION OF CONTRACT, ID.,
AT 430-431, THE COURT WENT ON TO NOTE THAT THE STATE POSSESSED
AUTHORITY "TO SAFEGUARD THE VITAL INTEREST OF ITS PEOPLE,"  ID., AT
434, AND ITS "ECONOMIC INTERESTS," ID., AT 437.  "IT DOES NOT MATTER
THAT LEGISLATION APPROPRIATE TO THAT END 'HAS THE RESULT OF MODIFYING
OR ABROGATING CONTRACTS ALREADY IN EFFECT.'  STEPHENSON V. BINFORD, 287
U.S. 251, 276."  ID., AT 434-435.  FURTHER THE COURT STRESSED THAT
VALIDITY DOES NOT TURN ON WHETHER THE LEGISLATION "AFFECTS CONTRACTS
INCIDENTALLY, OR DIRECTLY OR INDIRECTLY, BUT WHETHER THE LEGISLATION IS
ADDRESSED TO A LEGITIMATE END AND THE MEASURES TAKEN ARE REASONABLE AND
APPROPRIATE TO THAT END."  ID., AT 438. 

IN VEIX V. SIXTH WARD BUILDING & LOAN ASSOCIATION OF NEWARK, 310 U.S.
32, THE COURT UPHELD A STATE STATUTE WHICH RESTRICTED THE CONTRACTUAL
RIGHTS OF INVESTORS IN A BUILDING AND LOAN ASSOCIATION TO WITHDRAW AND
RECOVER BY SUIT THE AMOUNT OF THEIR INVESTMENT.  NO ATTEMPT WAS MADE TO
CLASSIFY THE MEASURE AS REMEDIAL.  RATHER THE COURT NOTED THAT THE
CONTRACT WAS WITH A FINANCIAL INSTITUTION OF MAJOR IMPORTANCE TO THE
CREDIT SYSTEM OF THE STATE AND HELD THAT THE "OBLIGATION OF THE
ASSOCIATION TO RESPOND TO AN APPLICATION FOR WITHDRAWAL WAS SUBJECT TO
THE PARAMOUNT POLICE POWER."  ID., AT 38.   IN UPHOLDING A STATUTE
DISALLOWING A DEFICIENCY JUDGMENT WHERE THE VALUE OF THE PROPERTY
BOUGHT BY THE MORTGAGEE AT A FORECLOSURE SALE EQUALS THE AMOUNT OF THE
DEBT AND INTEREST IN HONEYMAN V. JACOBS, 306 U.S. 539, THE COURT FOUND
THE FACT THAT THE PROVISION CONFINED THE CREDITOR TO SECURING A FAIR
SATISFACTION OF HIS DEBT DETERMINATIVE, NOTWITHSTANDING THAT UNDER THE
LAW IN FORCE WHEN THE CONTRACT WAS MADE THE CREDITOR COULD HAVE
RECOVERED THE DIFFERENCE BETWEEN THE PRICE AT THE FORECLOSURE SALE AND
THE AMOUNT OF INDEBTEDNESS.  THIS HOLDING WAS REAFFIRMED BY A UNANIMOUS
COURT IN GELFERT V. NATIONAL CITY BANK, 313 U.S. 221, AGAIN WITHOUT ANY
REGARD TO WHETHER THE MEASURE WAS SUBSTANTIVE OR REMEDIAL.  THE COURT
HELD THAT THE MORTGAGEE'S RIGHT UNDER PRIOR LAW TO THE ADVANTAGES OF A
FORCED SALE WAS NOT ENTITLED TO CONSTITUTIONAL PROTECTION UNDER THE
CONTRACT CLAUSE.   ID., AT 234.  SIMILARLY IN EAST NEW YORK SAVINGS
BANK V. HAHN, 326 U.S. 230, NO NOTICE WAS TAKEN OF THE REMEDY
OBLIGATION DISTINCTION.  RATHER THE COURT UPHELD A MORATORY STATUTE IN
POSTDEPRESSION TIMES SUSPENDING FOR THE TENTH YEAR IN SUCCESSION THE
MORTGAGEE'S RIGHT OF FORECLOSURE ON THE GOUND THAT CONTRACTS ARE NOT
CONSTITUTIONALLY IMMUNE FROM IMPAIRMENT BY STATE MEASURES DESIGNED "TO
SAFEGUARD THE VITAL INTERESTS OF ITS PEOPLE."  ID., AT 232. 

FN10  TEXAS CONSTITUTION, ART. 7, SEC. 2; TEX. GEN. & SPEC. LAWS
1935, CH. 312, SEC. 2, VERNON'S ANN. CIV. STAT., ART. 5416. 

"IN ORDER TO PERPETUATE THE DREAM OF A UNIVERSAL SYSTEM OF FREE
PUBLIC EDUCATION WHICH WAS IN THE MINDS OF MOST EARLY TEXANS, THE
CONSTITUTION OF 1876 PROVIDED THAT ONE-HALF OF THE PUBLIC DOMAIN OF THE
STATE, IN ADDITION TO ALL FUNDS, LANDS, AND OTHER PROPERTY THEREAFTER
SET APART FOR THE SUPPORT OF THE PUBLIC SCHOOLS, ALL THE ALTERNATE
OR TO CORPORATIONS, AND ALL SUMS OF MONEY THAT MAY COME TO THE STATE
FROM THE SALE OF ANY PORTION OF THE SAME, SHOULD CONSTITUTE A PERPETUAL
SCHOOL FUND.  THE LANDS BELONGING TO THIS FUND WERE TO BE SOLD UNDER
REGULATIONS AS PRESCRIBED BY LAW. 

     *         *         *         *         * 

"UNDER THESE ACTS THE PERMANENT FREE SCHOOL FUND HAS BEEN GRANTED
MORE THAN 42,500,000 ACRES OF LAND.  THE FIRST SALE OF SCHOOL LAND WAS
A 160-ACRE TRACT IN BOWIE COUNTY IN 1874.  SINCE 1905, THE METHOD OF
SALE HAS BEEN THAT OF SEALED COMPETITIVE BIDDING, AND MOST OF THE LAND
MAKING UP THIS GREAT ENDOWMENT HAS NOW BEEN SOLD AND THE SUM OF
APPROXIMATELY $95,000,000 PLACED IN THE PERMANENT FREE SCHOOL FUND." 
GILES, HISTORY AND DISPOSITION OF TEXAS PUBLIC DOMAIN, 14-15 (1945). 

FN11  E.G., TEX. GEN. LAWS 1895, CH. 47, SEC. 9; TEX. GEN. LAWS 1919,
CH. 163, SEC. 4.  IN 1941, THE REQUIRED DOWN PAYMENT WAS INCREASED FROM
ONE-FORTIETH TO ONE-FIFTH OF THE PURCHASE PRICE, AND THE AMOUNT OF THE
ANNUAL PAYMENTS WAS REDUCED FROM ONE-FORTIETH OF THE ASSESSED PRICE TO
ONE-FORTIETH OF THE UNPAID BALANCE.  TEX. GEN. & SPEC. LAWS 1941, CH.
191, SEC. 2, VERNON'S ANN. CIV. STAT., ART. 5312. 

FN12  E.G., TEX. GEN. & SPEC. LAWS 1941, CH. 191, SEC. 1; TEX. GEN. &
SPEC. LAWS 1951, CH. 59, SEC. 1, VERNON'S ANN. CIV. STAT., ART. 5320A;
TEX. GEN. & SPEC. LAWS 1961, CH. 399, SEC. 1, VERNON'S ANN. CIV. STAT.,
ART. 5421C-9. 

FN13  TEX. GEN. LAWS 1919, CH. 163, SEC. 5, AS AMENDED BY TEX. GEN.
LAWS 1925, CH. 130, SEC. 3, VERNON'S ANN. CIV. STAT., ARTS. 5306,
5311A. 

FN14  1938-1940 REPORT OF THE COMMISSIONER OF THE GENERAL LAND OFFICE
12 (HEREAFTER CITED AS REP.).  SEE ALSO TEX. GEN. LAWS 1925, CH. 94;
TEX. GEN. LAWS 1926, CH. 25, SEC. 1, VERNON'S ANN. CIV. STAT., ART.
5326A. 

UNDER THE ACT OF APRIL 18, 1913, FORFEITURE FOR NONPAYMENT OF
INTEREST DID NOT EMPOWER THE COMMISSIONER TO PUT LAND ON THE MARKET
AGAIN UNTIL AFTER LAPSE OF SPECIFIC PERIOD DURING WHICH THE FORFEITING
PURCHASER WAS GIVEN A RIGHT TO REPURCHASE THE TRACT.  JOHNSON V.
ROBISON, 111 TEX. 438, 240 S.W. 300.    FN15  "UNDER THE REAPPRAISEMENT
ACT OF 1913, FORFEITING OWNERS WERE ALLOWED TO REPURCHASE THEIR LAND AT
THE REAPPRAISED VALUE SET BY A BOARD, AND THE ACCUMULATED DELINQUENT
INTEREST ON FORFEITED CONTRACTS WAS IGNORED."  1938-1940 REP. 12. 

FN16  GULF PRODUCTION CO. V. STATE, 231 S.W. 124 (TEX. CIV. APP.). 

FN17  TEX. GEN. & SPEC. LAWS 1941, CH. 191, SEC. 2, VERNON'S ANN CIV.
STAT., ART 5312. 

FN18  TEX. GEN. LAWS 1905, CH. 103, SEC. 4; TEX. GEN. LAWS 1919, CH.
163, SEC. 6, VERNON'S ANN. CIV. STAT., ARTS. 5313, 5314.  GIRAUD V.
ROBISON, 102 TEX. 488, 119 S.W.  1145. 

MR. JUSTICE BLACK, DISSENTING.    I HAVE PREVIOUSLY HAD A NUMBER OF
OCCASIONS TO DISSENT FROM JUDGMENTS OF THIS COURT BALANCING AWAY THE
FIRST AMENDMENT'S UNEQUIVOCALLY GUARANTEED RIGHTS OF FREE SPEECH,
PRESS, ASSEMBLY AND PETITION.  (FN1)  IN THIS CASE I AM COMPELLED TO
DISSENT FROM THE COURT'S BALANCING AWAY THE PLAIN GUARANTEE OF ART. I,
SEC. 10, THAT: 

"NO STATE SHALL  ...  PASS ANY  ...  LAW IMPAIRING THE OBLIGATION OF
CONTRACTS  ...  ." 

A BALANCING WHICH RESULTS IN THE STATE OF TEXAS' TAKING A MAN'S
PRIVATE PROPERTY FOR PUBLIC USE WITHOUT COMPENSATION IN VIOLATION OF
THE EQUALLY PLAIN GUARANTEE OF THE FIFTH AMENDMENT, MADE APPLICABLE TO
THE STATES BY THE FOURTEENTH, THAT: 

"  ...  PRIVATE PROPERTY SHALL NOT BE TAKEN FOR PUBLIC USE, WITHOUT
JUST COMPENSATION." 

THE RESPONDENT, SIMMONS, IS THE LOSER AND THE TREASURY OF THE STATE
OF TEXAS THE ULTIMATE BENEFICIARY OF THE COURT'S ACTION. 

                                  I. 

IN 1910 TEXAS OBLIGATED ITSELF BY CONTRACT TO SELL THE LAND HERE
INVOLVED, THE PURCHASERS TO PAY ONE-FORTIETH OF THE PRICE IN CASH, THE
BALANCE DUE AT UNNAMED DATES, WITH ANNUAL INTEREST AT 3% OF THE UNPAID
BALANCE TO BE PAID EACH SUCCEEDING YEAR.  THE CONTRACTS OF SALE
APPROVED ON BEHALF OF THE STATE BY THE TEXAS LAND COMMISSIONER PROVIDED
THAT THE LAND WAS SOLD "IN ACCORDANCE WITH THE PROVISIONS OF" TWO TEXAS
STATUTES.  (FN2)  THE PROVISIONS OF THESE STATUTES RELATING TO THE SALE
WERE THUS INCORPORATED IN AND BECAME A PART OF THE OBLIGATION ASSUMED
BY TEXAS AND THE PURCHASERS, JUST AS IF THEY HAD BEEN SPELLED OUT WORD
FOR WORD IN THE CONTRACTS.  ONE OF THESE INCORPORATED STATUTES PROVIDED
THAT UPON FAILURE TO PAY ANY INTEREST DUE, A PURCHASER'S RIGHTS UNDER
HIS CONTRACT SHOULD BE "FORFEITED TO THE STATE," BUT THAT EVEN AFTER
SUCH FORFEITURE THE PURCHASER COULD HAVE HIS CLAIM UNDER THE ORIGINAL
CONTRACT: 

"RE-INSTATED ON  ...  WRITTEN REQUEST BY PAYING INTO THE TREASURY THE
FULL AMOUNT OF INTEREST DUE ON SUCH CLAIM UP TO THE DATE OF RE
INSTATEMENT, PROVIDED THAT NO RIGHTS OF THIRD PERSONS MAY HAVE
INTERVENED."  (FN3) 

SOME 37 YEARS AFTER EXECUTION OF THE CONTRACTS INVOLVED IN THIS CASE,
INTEREST PAYMENTS FELL INTO ARREARS AND THE STATE DECLARED THE
CONTRACTS FORFEITED.  FIVE YEARS AND TWO DAYS LATER SIMMONS, HAVING
BECOME THE OWNER OF THE CONTRACTS BY VALID SALE AND ASSIGNMENT,
TENDERED PAYMENT OF ALL INTEREST DUE (FN4) AND ASKED THE STATE TO CARRY
OUT ITS CONTRACTUAL OBLIGATION TO REINSTATE HIS CLAIM TO THE LAND. 
SINCE THE STATE STILL OWNED THE LAND AND ADMITTEDLY NO RIGHTS OF THIRD
PERSONS HAD INTERVENED, SIMMONS WAS UNQUESTIONABLY ENTITLED TO
REINSTATEMENT OF HIS CLAIM UNDER THE TERMS OF THE STATE'S ORIGINAL
OBLIGATION.  THE STATE NEVERTHELESS REFUSED TO HONOR ITS CONTRACTS
PROVIDING FOR REINSTATEMENT ON TENDER OF INTEREST, AND SEVERAL YEARS
LATER SOLD THE LAND, LESS MINERAL RIGHTS, TO THE CITY OF EL PASO FOR A
PRICE MUCH HIGHER THAN IT WOULD HAVE RECEIVED BY HONORING THE CONTRACT
AND SELLING TO SIMMONS AT THE CONTRACT PRICE.  (FN5)  SIMMONS BROUGHT
AN ACTION IN FEDERAL COURT TO ESTABLISH HIS TITLE.  THE COURT OF
APPEALS, REVERSING THE DISTRICT COURT, HELD THAT THE CONTRACT CLAUSE OF
THE CONSTITUTION, ART. I, SEC. 10, PREVENTED TEXAS FROM THUS
REPUDIATING THE OBLIGATION IT HAD ASSUMED IN ITS 1910 CONTRACTS. 

THIS COURT NOW REVERSES THE COURT OF APPEALS AND HOLDS THAT TEXAS WAS
JUSTIFIED IN DISHONORING ITS CONTRACTUAL OBLIGATION BECAUSE OF A STATE
LAW PASSED IN 1941 WHICH ATTEMPTED TO CHANGE THE OBLIGATION OF THIS
CONTRACT AND THE MANY OTHERS LIKE IT FROM ONE UNCONDITIONALLY ALLOWING
REINSTATEMENT, PROVIDED NO RIGHTS OF THIRD PARTIES HAD INTERVENED, TO
ONE WHICH CAST OFF THAT RIGHT UNLESS "EXERCISED WITHIN FIVE (5) YEARS
FROM THE DATE OF THE FORFEITURE."  (FN6)  THE COURT SAYS THAT THE
STATE, AFTER MAKING A CONTRACTUAL OBLIGATION VOLUNTARILY AND EAGERLY
WHEN THE PROPERTY WAS A DRUG ON THE MARKET, WAS NEVERTHELESS FREE TO
ENACT THE 1941 STATUTE WHICH NOT ONLY IMPAIRED BUT FLATLY REPUDIATED
ITS FORMER OBLIGATION AFTER THE LAND HAD GREATLY INCREASED IN VALUE. 
AND STRANGE AS IT SOUNDS, ONE OF THE REASONS THE COURT GIVES AS
JUSTIFICATION FOR TEXAS' REPUDIATION OF ITS OBLIGATION TO SIMMONS AND
MANY OTHERS IS THAT THESE CONTRACTS HAD TURNED OUT TO BE A BAD BARGAIN
AND TEXAS HAD LOST MILLIONS OF DOLLARS BY HONORING THEM IN THE PAST. 
IF THE HOPE AND REALIZATION OF PROFIT TO A CONTRACT BREAKER ARE
HEREAFTER TO BE GIVEN EITHER PARTIAL OR SUFFICIENT WEIGHT TO CANCEL OUT
THE UNEQUIVOCAL CONSTITUTIONAL COMMAND AGAINST IMPAIRING THE
OBLIGATIONS OF CONTRACTS, THAT COMMAND WILL BE NULLIFIED BY WHAT IS THE
MOST COMMON CAUSE FOR BREAKING CONTRACTS.  I CANNOT SUBSCRIBE TO SUCH A
DEVITALIZING CONSTITUTIONAL DOCTRINE. 

THE COURT DOES NOT DENY THAT UNDER TEXAS LAW THE STATE'S CONTRACTUAL
PROMISE TO PERMIT REINSTATEMENT GAVE THE PURCHASER A RIGHT WHICH THE
STATE UNDER ITS LAW WAS BOUND BY THE CONTRACT TO HONOR.  (FN7)  THE
COURT CAREFULLY DOES NOT DENY THAT THIS PROMISE BY TEXAS IS THE KIND OF
"OBLIGATION" WHICH THE CONTRACT CLAUSE WAS WRITTEN TO PROTECT.  THE
COURT DOES NOT, UNLESS BY A MOST OBLIQUE REFERENCE IN ITS FOOTNOTE 9,
NOR COULD IT IN MY JUDGMENT, ALLOW TEXAS TO ESCAPE ITS OBLIGATION BY
TREATING THIS AS A MERE CHANGE IN COURT REMEDIES FOR ENFORCEMENT. 
INSTEAD OF RELYING ON SUCH GROUNDS, THE COURT SAYS THAT SINCE THE STATE
ACTS OUT OF WHAT THIS COURT THINKS ARE GOOD MOTIVES, AND HAS NOT
REPUDIATED ITS CONTRACT EXCEPT IN A WAY WHICH THIS COURT THINKS IS
"REASONABLE," THEREFORE THE STATE WILL BE ALLOWED TO IGNORE THE
CONTRACT CLAUSE OF THE CONSTITUTION.   THERE FOLLOW CITATION OF ONE OR
TWO DICTA FROM PAST CASES AND A BIT OF SKILLFUL "BALANCING," AND THE
COURT ARRIVES AT ITS CONCLUSION:  ALTHOUGH THE OBLIGATION OF THE
CONTRACT HAS BEEN IMPAIRED HERE, THIS IMPAIRMENT DOES NOT SEEM TO THE
COURT TO BE VERY SERIOUS OR EVIL, AND SO THEREFORE "THE CONTRACT CLAUSE
DOES NOT FORBID SUCH A MEASURE." 

                                II. 

IN ITS OPINION THE COURT'S DISCUSSION OF THE CONTRACT CLAUSE AND THIS
COURT'S PAST DECISIONS APPLYING IT IS BRIEF.  FOR THE MOST PART THE
COURT INSTEAD DISCUSSES THE DIFFICULTIES AND REGRET WHICH THE
GOVERNMENT OF TEXAS HAS EXPERIENCED ON ACCOUNT OF THE CONTRACTS IT
ENTERED.  I THEREFORE THINK THAT THE FIRST THING IT IS IMPORTANT TO
POINT OUT IS THAT THERE IS NO SUPPORT WHATEVER IN HISTORY OR IN THIS
COURT'S PRIOR HOLDINGS FOR THE DECISION REACHED IN THIS CASE.  INDEED,
I BELIEVE THAT THE RELEVANT PRECEDENTS ALL POINT THE OPPOSITE WAY. 

THE CONTRACT CLAUSE WAS INCLUDED IN THE SAME SECTION OF THE
CONSTITUTION WHICH FORBIDS STATES TO PASS BILLS OF ATTAINDER OR EX POST
FACTO LAWS.  AL THREE OF THESE PROVISIONS REFLECT THE STRONG BELIEF OF
THE FRAMERS OF THE CONSTITUTION THAT MEN SHOULD NOT HAVE TO ACT AT
THEIR PERIL, FEARING ALWAYS THAT THE STATE MIGHT CHANGE ITS MIND AND
ALTER THE LEGAL CONSEQUENCES OF THEIR PAST ACTS SO AS TO TAKE AWAY
THEIR LIVES, THEIR LIBERTY OR THEIR PROPERTY.  JAMES MADISON EXPLAINED
THAT THE PEOPLE WERE "WEARY OF THE FLUCTUATING POLICY" OF STATE
LEGISLATURES AND WANTED IT MADE CLEAR THAT UNDER THE NEW GOVERNMENT MEN
COULD SAFELY RELY ON STATES TO KEEP FAITH WITH THOSE WHO JUSTIFIABLY
RELIED ON THEIR PROMISES.  THE FEDERALIST, NO. 44, AT 301 (COOKE ED.
1961). 

THE FIRST GREAT CASE CONSTRUING THE CONTRACT CLAUSE INVOLVED, MUCH
LIKE THE PRESENT CASE, AN ATTEMPT BY A STATE TO RELIEVE ITSELF OF THE
DUTY OF HONORING LAND GRANTS WHICH IT REGRETTED HAVING MADE.  IN
FLETCHER V. PECK, 6 CRANCH 87, DECIDED IN 1810, THIS COURT SPEAKING
THROUGH CHIEF JUSTICE JOHN MARSHALL HELD THAT A LAW OF THE STATE OF
GEORGIA WHICH ATTEMPTED TO TERMINATE GRANTS OF LAND MADE BY THE STATE
UNDER AUTHORITY OF A PRIOR STATE LAW WAS INVALID AS A VIOLATION OF THE
CONTRACT CLAUSE.  (FN8)  LATER IN STURGES V. CROWNINSHIELD, 4 WHEAT. 
122, DECIDED IN 1819, CHIEF JUSTICE MARSHALL AGAIN SPEAKING FOR THE
COURT WENT ON TO SAY THAT "WITHOUT IMPAIRING THE OBLIGATION OF THE
CONTRACT, THE REMEDY MAY CERTAINLY BE MODIFIED AS THE WISDOM OF THE
NATION SHALL DIRECT," (FN9) THUS DRAWING A DISTINCTION BETWEEN STATE
ACTION DEEMED TO BE A MERE CHANGE OF REMEDY, THAT IS, THE METHOD FOR
ENFORCING THE CONTRACT, AND STATE IMPAIRMENT OF A CONTRACTUAL
OBLIGATION.  (FN10)  AS TO THE LATTER HE EMPHASIZED THAT A THING
PROMISED TO BE DONE BY A PARTY TO A CONTRACT IS: 

"OF COURSE, THE OBLIGATION OF HIS CONTRACT  ...  .  ANY LAW WHICH
RELEASES A PART OF THIS OBLIGATION, MUST, IN THE LITERAL SENSE OF THE
WORD, IMPAIR IT  ...  . 

"THE WORDS OF THE CONSTITUTION, THEN, ARE EXPRESS, AND INCAPABLE OF
BEING MISUNDERSTOOD."  (FN11) 

ON OTHER OCCASIONS THIS COURT HELD THAT THE CONTRACT CLAUSE PROHIBITS
A STATE FROM REPUDIATING A TAX EXEMPTION INCLUDED BY THE STATE IN A
GRANT OF LAND.  GORDON V. APPEAL TAX COURT, 3 HOW.  133; NEW JERSEY V.
WILSON, 7 CRANCH 164. 

THE COURT DOES NOT PURPORT TO OVERRULE ANY OF THESE PAST CASES, BUT I
THINK UNLESS OVERRULED THEY REQUIRE A HOLDING THAT THE TEXAS STATUTE
VIOLATES THE CONTRACT CLAUSE.  IT IS THEREFORE AT LEAST A LITTLE
SURPRISING THAT THE COURT DOES NOT FIND IT NECESSARY TO DISCUSS THEM. 
INSTEAD THE COURT QUOTES A FEW ABSTRACT STATEMENTS FROM SOME OTHER
CASES, HARDLY A SOLID AND PERSUASIVE BASIS FOR DEVITALIZING ONE OF THE
FEW PROVISIONS WHICH THE FRAMERS DEEMED OF SUFFICIENT IMPORTANCE TO
PLACE IN THE ORIGINAL CONSTITUTION ALONG WITH COMPANION CLAUSES
FORBIDDING STATES TO PASS BILLS OF ATTAINDER AND EX POST FACTO LAWS. 

THE CASES THE COURT MENTIONS DO NOT SUPPORT ITS REASONING.  HOME
BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, WHICH THE COURT SEEMS
TO THINK PRACTICALLY READ THE CONTRACT CLAUSE OUT OF THE CONSTITUTION,
ACTUALLY DID NO SUCH THING, AS THE BLAISDELL OPINION READ IT ITS
ENTIRETY SHOWS AND AS SUBSEQUENT DECISIONS OF THIS COURT WERE CAREFUL
TO POINT OUT.  BLAISDELL WITHOUT RESORT TO "BALANCING" SIMPLY HELD THAT
A STATE COULD CONSTITUTIONALLY PASS A LAW EXTENDING THE PERIOD OF
REDEMPTION OF A MORTGAGE FOR TWO YEARS WHERE IT PROVIDED FOR
COMPENSATION TO THE MORTGAGEE FOR THE RESULTING DELAY IN ENFORCEMENT. 
IN SO HOLDING THE BLAISDELL COURT RELIED ON AND APPROVED THE
ESTABLISHED DISTINCTION BETWEEN AN INVALID IMPAIRMENT OF A CONTRACT'S
OBLIGATION AND A VALID CHANGE IN THE REMEDY TO ENFORCE IT.  (FN12)
VIEWED THIS WAY THE COURT IN BLAISDELL FOUND NO CONTRACTUAL PROMISE OR
"OBLIGATION" BY THE STATE TO KEEP THE OLD LAW AS TO REMEDY STATIC.  IT
COULD AND DID TREAT THE CHALLENGED STATE LAW AS A GENERAL ONE WHICH DID
NO MORE THAN CHANGE THE REMEDY TO ENFORCE CONTRACTS, A CHANGE WHICH HAD
CAREFULLY PROVIDED THAT PARTIES ENTITLED UNDER THE OLD LAW TO FORECLOSE
MORTGAGES SHOULD DURING THOSE TWO YEARS BE PAID THE FAIR RENTAL VALUE
OF THE PROPERTY JUST AS IF THE FORECLOSURE HAD TAKEN PLACE.  IN SO
HOLDING THE COURT RECOGNIZED THAT CONTRACTS ARE SUBJECT TO THE RIGHT OF
PARTIAL OR TOTAL EMINENT DOMAIN, WEST RIVER BRIDGE CO. V. DIX, 6 HOW. 
507, SO LONG AS COMPENSATION IS PAID, AND IT HELD THAT SINCE THERE WAS
PROVISION THAT THE MORTGAGEES WOULD BE PAID THE CONTRACT CLAUSE WOULD
PERMIT SUCH "LIMITED AND TEMPORARY INTERPOSITIONS" (FN13) DESIGNED TO
GIVE "TEMPORARY RELIEF" (FN14) THROUGH A "TEMPORARY AND CONDITIONAL
RESTRAINT" ON THE REMEDY.  (FN15)  THE COURT NOTED THAT THE MORTGAGE
CONTRACT WAS ONE BETWEEN PRIVATE PERSONS RATHER THAN ONE BETWEEN A
PRIVATE PERSON AND THE STATE ITSELF, AND RELIED ON PAST DECISIONS WHICH
HAD HELD THAT "ONE WHOSE RIGHTS, SUCH AS THEY ARE, ARE SUBJECT TO STATE
RESTRICTION, CANNOT REMOVE THEM FROM THE POWER OF THE STATE BY MAKING A
CONTRACT ABOUT THEM."  HUDSON COUNTY WATER CO. V. MCCARTER, 209 U.S.
349, 357.  SEE ALSO, E.G., DILLINGHAM V. MCLAUGHLIN, 264 U.S. 370, 374;
MARCUS BROWN HOLDING CO. V. FELDMAN, 256 U.S. 170, 198; MANIGAULT V.
SPRINGS, 199 U.S. 473, 480.  THE CONTRACT CLAUSE, SAID THE COURT IN
BLAISDELL, WOULD NOT BE CONSTRUED TO "PERMIT THE STATE TO ADOPT AS ITS
POLICY THE REPUDIATION OF DEBTS OR THE DESTRUCTION OF CONTRACTS OR THE
DENIAL OF MEANS TO ENFORCE THEM."  290 U.S., AT 439.  THAT, THE COURT
HELD, WOULD IMPAIR THE CONTRACT INSTEAD OF MERELY DELAYING ENFORCEMENT
WHILE COMPENSATING THE CREDITOR FOR THE DELAY.  NO SUCH THING CAN BE
SAID ABOUT THIS TEXAS LAW, AS THE COURT IMPLICITLY RECOGNIZES BY
PLACING NO RELIANCE UPON THE DISTINCTION BETWEEN THE OBLIGATION AND THE
REMEDY, PREFERRING INSTEAD ITS "BALANCING" TECHNIQUE.  (FN16)  CHIEF
JUSTICE HUGHES, THE AUTHOR OF BLAISDELL, LATER REITERATED AND
EMPHASIZED THAT THAT CASE HAD UPHELD ONLY A TEMPORARY RESTRAINT WHICH
PROVIDED FOR COMPENSATION, WHEN FOUR MONTHS LATER HE SPOKE FOR THE
COURT IN STRIKING DOWN A LAW WHICH DID NOT.  W.B. WORTHEN CO. V.
THOMAS, 292 U.S. 426.  OTHER STATE LAWS WHICH DID NOT MEET THE
CONSTITUTIONAL STANDARD APPLIED IN BLAISDELL WERE SUBSEQUENTLY STRUCK
DOWN.  SEE, E.G., W.B. WORTHEN CO. V. KAVANAUGH, 295 U.S. 56; TREIGLE
V. ACME HOMESTEAD ASSN., 297 U.S. 189; WOOD V. LOVETT, 313 U.S. 362. 
(FN17) 

NONE OF THE OTHER CASES WHICH THE COURT QUOTES OR MENTIONS IN PASSING
ALTERED IN ANY WAY THE RULE ESTABLISHED IN FLETCHER V. PECK, SUPRA, AND
ADHERED TO IN BLAISDELL AND THEREAFTER, THAT A STATE MAY NOT PASS A LAW
REPUDIATING CONTRACTUAL OBLIGATIONS WITHOUT COMPENSATING THE INJURED
PARTIES.  (FN18)  ESPECIALLY SHOULD THIS BE TRUE WHEN, AS IN THE CASE
BEFORE US, THE CONTRACTUAL OBLIGATION REPUDIATED IS THE STATE'S OWN. 
COMPARE PERRY V. UNITED STATES, 294 U.S. 330, WITH NORMAN V. BALTIMORE
& O.R. CO., 294 U.S. 240. 
III. 

TO SUBVERT THE PROTECTION OF THE CONTRACT CLAUSE HERE, AS WELL AS THE
FIFTH AND FOURTEENTH AMENDMENTS' PROHIBITION AGAINST TAKING PRIVATE
PROPERTY FOR PUBLIC USE WITHOUT JUST COMPENSATION, (FN19) THE COURT
HAS, AS I SAID, IMPORTED INTO THIS CONSTITUTIONAL FIELD WHAT I BELIEVE
TO BE A CONSTITUTIONALLY INSUPPORTABLE DUE PROCESS "BALANCING"
TECHNIQUE TO WHICH I HAVE OBJECTED IN CASES ARISING UNDER THE DUE
PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS, (FN20) AND
WHICH HAS DONE SO MUCH TO WATER DOWN THE SAFEGUARDS OF FIRST AMENDMENT
FREEDOMS.  SEE NOTE 1, SUPRA.  THE COURT SAYS, "LAWS WHICH RESTRICT A
PARTY TO THOSE GAINS REASONABLY TO BE EXPECTED FROM THE CONTRACT ARE
NOT SUBJECT TO ATTACK UNDER THE CONTRACT CLAUSE, NOTWITHSTANDING THAT
THEY TECHNICALLY ALTER AN OBLIGATION OF A CONTRACT."  OTHERWISE STATED,
A PERSON CAN MAKE A GOOD DEAL WITH A STATE BUT IF IT TURNS OUT TO BE A
VERY GOOD DEAL FOR HIM OR A VERY BAD DEAL FOR THE STATE, THE STATE IS
FREE TO RENEGE AT ANY TIME.  AND WHETHER GAINS CAN "REASONABLY BE
EXPECTED FROM THE CONTRACT" IS OF COURSE, IN THE COURT'S VIEW, FOR THIS
COURT TO DECIDE.  THUS THIS COURT'S JUDGMENT AS TO "REASONABLENESS" OF
A LAW IMPAIRING OR EVEN REPUDIATING A VALID CONTRACT BECOMES THE
MEASURE OF THE CONTRACT CLAUSE'S PROTECTION. 

THE COURT IN ITS DUE PROCESS "REASONABLENESS" FORMULA, TRUE TO THE
PRINCIPLE OF THAT INDEFINABLE STANDARD, WEIGHS WHAT IT CONSIDERS TO BE
THE ADVANTAGES AND DISADVANTAGES TO TEXAS OF ENFORCING THE CONTRACT
PROVISION, AGAINST THE ADVANTAGES AND DISADVANTAGES TO THE PURCHASERS. 
THE COURT THEN CONCLUDES THAT IN ITS JUDGMENT THE SCALES TIP ON THE
SIDE OF TEXAS AND THEREFORE REFUSES TO GIVE FULL FAITH TO THE
CONSTITUTIONAL PROVISION.  ON THE SIDE OF THE PURCHASERS THE COURT
FINDS NOTHING THAT WEIGHS MUCH:  THE PROMISE TO REINSTATE WAS NOT
"CENTRAL" OR "PRIMARY"; THE CONTRACTS AS VIEWED TODAY SEEM TO HAVE BEEN
VERY GENEROUS TO THE BUYERS; BUYERS WERE PROBABLY NOT SUBSTANTIALLY
INDUCED TO ENTER INTO THESE CONTRACTS BY THE "DEFEASIBLE RIGHT TO
REINSTATEMENT."  THE COURT TRIES TO DOWNGRADE THE IMPORTANCE OF THE
REINSTATEMENT OBLIGATION IN THE CONTRACT BY VOLUNTEERING THE OPINION
THAT THIS OBLIGATION "WAS NOT THE CENTRAL UNDERTAKING OF THE SELLER
(TEXAS) NOR THE PRIMARY CONSIDERATION FOR THE BUYER'S UNDERTAKING." 
WHY THE COURT GUESSES THIS WE ARE NOT TOLD.  MY GUESS IS DIFFERENT. 
THIS PARTICULAR PROVISION WAS BOUND, I THINK, TO HAVE BEEN A GREAT
INDUCEMENT TO PROSPECTIVE PURCHASERS OF LOTS AND BLOCKS OF LAND THAT
THE STATE OF TEXAS WAS UNDERSTANDABLY EAGER TO SELL FOR MANY REASONS. 
IT TOOK PURCHASERS TO BUILD UP THE POPULATION OF TEXAS AND THEREBY
IMPROVE ITS BUSINESS AND INCREASE ITS LAND VALUES.  IT IS NOT
SURPRISING, THEREFORE, THAT THE STATE WAS WILLING TO SELL ITS
OVERSUPPLY OF LAND ON LIBERAL TERMS, NOR SHOULD IT BE SURPRISING TO
SUGGEST THAT TEXAS KNEW THAT ITS LAND COULD BE SOLD FOR MORE, AND MORE
QUICKLY, BY PROMISING PURCHASERS THAT SO LONG AS TEXAS KEPT THE
PROPERTY THE RIGHT OF THESE FIRST PURCHASERS AND THEIR ASSIGNS TO BUY
AT THE ORIGINAL PRICES SHOULD NEVER BE FORFEITED.  TO MY WAY OF
THINKING IT DEMONSTRATES A STRIKING LACK OF KNOWLEDGE OF CREDIT BUYING
AND SELLING EVEN TO IMPLY THAT THESE EXPRESS CONTRACTUAL PROVISIONS
SAFEGUARDING CREDIT PURCHASERS AGAINST FORFEITURES WERE NOT ONE OF THE
GREATEST, IF NOT THE GREATEST, SELLING ARGUMENTS TEXAS HAD TO PROMOTE
PURCHASE OF ITS GREAT SURFEIT OF LANDS.  THE COURT'S FACTUAL INFERENCE
IS ALL THE MORE PUZZLING SINCE ITS OPINION EMPHASIZES THAT MANY PEOPLE
ENTERED THESE CONTRACTS FOR SPECULATIVE PURPOSES WHICH WITHOUT THE
REDEMPTION PROVISION WOULD NOT HAVE BEEN NEARLY SO ATTRACTIVE. 

THE COURT OBSERVES THAT IT BELIEVES "THE CONSTITUTION IS 'INTENDED TO
PRESERVE PRACTICAL AND SUBSTANTIAL RIGHTS, NOT TO MAINTAIN THEORIES.'" 
(FN21)  OF COURSE I AGREE WITH THAT.  BUT WHILE DEPRIVATION OF SIMMONS'
RIGHT TO HAVE TEXAS CARRY OUT ITS OBLIGATION TO PERMIT HIM TO REINSTATE
HIS CLAIM AND PURCHASE THE LAND MAY SEEM NO MORE THAN A "THEORY" TO THE
COURT, IT VERY LIKELY SEEMS MORE THAN THAT TO TEXAS, WHICH BY
REPUDIATING ITS CONTRACT HAS UNDOUBTEDLY GAINED MILLIONS OF DOLLARS,
AND TO PURCHASERS WHO HAVE CONCEDELY, AND I THINK UNCONSTITUTIONALLY,
LOST THOSE MILLIONS.  IT APPEARS ODD TO ME ALSO TO HAVE THE COURT
SUPPORT ITS HOLDING ON WHAT IS NOTHING MORE THAN THE COURT'S THEORY
THAT ALL TEXAS HAS DONE IS "TECHNICALLY ALTER AN OBLIGATION OF A
CONTRACT."  MUCH AS HAS BEEN SAID ABOUT THE WEALTH OF TEXAS, I WAS
UNAWARE UNTIL NOW THAT A MULTI-MILLION DOLLAR WINDFALL FOR THAT STATE
COULD BE DISMISSED AS A MERE TECHNICALITY; IT SOUNDS LIKE MORE THAN A
TECHNICALITY TO ME, AND PERHAPS TO THE PURCHASERS WHOSE RIGHTS TEXAS
TOOK AWAY FROM THEM. 

LET US NOW LOOK AT SOME OF THE WEIGHTS THE COURT THROWS ON THE SCALES
ON THE SIDE OF TEXAS: THOUSANDS OF PURCHASE CONTRACTS WERE FORFEITED
FROM TIME TO TIME BY FAILURE OF PURCHASERS TO PAY INTEREST; FORFEITED
CLAIMS UNDER MANY OF THESE CONTRACTS COULD BE REINSTATED BY PURCHASERS
"IF AND WHEN THE LAND BECAME POTENTIALLY PRODUCTIVE OF GAS AND OIL";
SOME OF THE PURCHASES WERE MADE FOR SPECULATIVE PURPOSES; PURCHASERS
THWARTED EFFORTS OF TEXAS TO REPURCHASE THE LANDS IN ORDER TO RESELL
THEM AT A HIGHER VALUE; THE LANDS WENT UP IN VALUE AS THE YEARS ROLLED
BY, WHICH CAUSED TEXAS TO "LOSE" MILLIONS OF DOLLARS; MUCH LITIGATION
AROSE BETWEEN THE STATE AND CONTRACT PURCHASERS; THE STATE'S POLICY OF
QUICK RESALE OF FORFEITED LANDS, IN ORDER TO CAUSE RIGHTS OF THIRD
PARTIES TO INTERVENE, DID NOT PROVE SUCCESSFUL; THE MARKET FOR LAND
CONTRACTED DURING THE DEPRESSION; CLOUDS ON TITLES AROSE BECAUSE OF
REINSTATEMENT RIGHTS ON LAND WHICH TEXAS HAD RESOLD; "INTEREST" AND
NECESSITY" PROMPTED TEXAS TO PASS THE 1941 LAW REPUDIATING ITS
CONTRACTUAL REINSTATEMENT RIGHTS; CARRYING OUT THE OBLIGATIONS WOULD
HAVE BEEN "QUITE COSTLY TO THE SCHOOL FUND AND TO THE DEVELOPMENT OF
LAND USE"; WHEN THE LAND HERE INVOLVED WAS SOLD TO EL PASO IN BREACH OF
THE STATE'S OBLIGATION TO SIMMONS, EL PASO WAS "'IN URGENT NEED OF
EXPANDING ITS SOURCES OF WATER'"; THE STATE NEEDED MORE MONEY FOR ITS
SCHOOL FUND AND FOR EFFICIENT UTILIZATION OF ITS PUBLIC LANDS, MONEY
WHICH IT COULD GET PAINLESSLY IF IT WAS ALLOWED TO REPUDIATE THESE
OBLIGATIONS, WHICH WERE "IMPEDIMENTS" TO THE STATE'S DESIRE TO RAISE
MONEY BY RESELLING THESE LANDS FOR A HIGHER PRICE. 

I DO NOT BELIEVE THAT ANY OR ALL OF THE THINGS SET OUT ABOVE ON WHICH
THE COURT RELIES ARE REASONS FOR RELIEVING TEXAS OF THE UNCONDITIONAL
DUTY OF KEEPING ITS CONTRACTUAL OBLIGATIONS AS REQUIRED BY THE CONTRACT
CLAUSE.  AT MOST THE COURT'S REASONS BOIL DOWN TO THE FACT THAT TEXAS'
CONTRACTS, PERHAPS VERY WISELY MADE A LONG TIME AGO, (FN22) TURNED OUT
WHEN LAND SOARED IN VALUE, AND PARTICULARLY AFTER OIL WAS DISCOVERED,
TO BE COSTLY TO THE STATE.  AS THE COURT EUPHEMISTICALLY PUTS IT, THE
CONTRACTS WERE "NOT WHOLLY EFFECTUAL TO SERVE THE OBJECTIVES OF THE
STATE'S LAND PROGRAM MANY DECADES LATER.  SETTLEMENT WAS NO LONGER THE
OBJECTIVE, BUT REVENUES  ...  " AMONG OTHER THINGS WERE.  IN PLAINER
LANGUAGE, THE STATE DECIDED IT HAD MADE A BAD DEAL AND WANTED OUT. 
THERE IS NOTHING UNUSUAL IN THIS.  IN IS A COMMONPLACE THAT LAND VALUES
STEADILY RISE WHEN POPULATION INCREASES AND RISE SHARPLY WHEN VALUABLE
MINERALS ARE DISCOVERED, AND THAT MANY SELLERS WOULD BE MUCH RICHER AND
HAPPIER IF WHEN LANDS GO UP IN VALUE THEY WERE ABLE TO WELCH ON THEIR
SALES.  NO PLETHORA OF WORDS ABOUT STATE SCHOOL FUNDS CAN CONCEAL THE
FACT THAT TO GET MONEY EASILY WITHOUT HAVING TO TAX THE WHOLE PUBLIC
TEXAS TOOK THE EASY WAY OUT AND VIOLATED THE CONTRACT CLAUSE OF THE
CONSTITUTION AS WRITTEN AND AS APPLIED UP TO NOW.  IF THE VALUES OF
THESE LANDS AND OF VALID CONTRACTS TO BUY THEM HAVE INCREASED, THAT
INCREASE BELONGS IN EQUITY AS WELL AS IN SOUND CONSTITUTIONAL
INTERPRETATION NOT TO TEXAS, BUT TO THE MANY PEOPLE WHO AGREED TO THESE
CONTRACTS UNDER WHAT NOW TURNS OUT TO HAVE BEEN A MISTAKEN BELIEF THAT
TEXAS WOULD KEEP THE OBLIGATIONS IT GAVE TO THOSE WHO DEALT WITH IT. 

ALL THIS FOR ME IS JUST ANOTHER EXAMPLE OF THE DELUSIVENESS OF
CALLING "BALANCING" A "TEST."  WITH ITS DEPRECATORY VIEW OF THE
EQUITIES ON THE SIDE OF SIMMONS AND OTHER CLAIMANTS AND ITS REMARKABLE
SYMPATHY FOR THE STATE, THE COURT THROUGH ITS BALANCING PROCESS STATES
THE CASE IN A WAY INEVITABLY DESTINED TO BYPASS THE CONTRACT CLAUSE AND
LET TEXAS BREAK ITS SOLEMN OBLIGATION.  AS THE COURT'S OPINION
DEMONSTRATES, CONSTITUTIONAL ADJUDICATION UNDER THE BALANCING METHOD
BECOMES SIMPLY A MATTER OF THIS COURT'S DECIDING FOR ITSELF WHICH
RESULT IN A PARTICULAR CASE SEEMS IN THE CIRCUMSTANCES THE MORE
ACCEPTABLE GOVERNMENTAL POLICY AND THEN STATING THE FACTS IN SUCH A WAY
THAT THE CONSIDERATIONS IN THE BALANCE LEAD TO THE RESULT.  EVEN IF I
BELIEVED THAT WE AS JUSTICES OF THIS COURT HAD THE AUTHORITY TO RELY ON
OUR JUDGMENT OF WHAT IS BEST FOR THE COUNTRY INSTEAD OF TRYING TO
INTERPRET THE LANGUAGE AND PURPOSE OF OUR WRITTEN CONSITUTION, I WOULD
NOT AGREE THAT TEXAS SHOULD BE PERMITTED TO DO WHAT IT HAS DONE HERE. 
BUT MORE IMPORTANTLY, I MOST CERTAINLY CANNOT AGREE THAT CONSTITUTIONAL
LAW IS SIMPLY A MATTER OF WHAT THE JUSTICES OF THIS COURT DECIDE IS NOT
HARMFUL FOR THE COUNTRY, AND THEREFORE IS "REASONABLE."  CF. FERGUSON
V. SKRUPA, 372 U.S. 726; FEDERAL POWER COMM'N V. NATURAL GAS PIPELINE
CO., 315 U.S. 575, 599 (CONCURRING OPINION).  JAMES MADISON SAID THAT
THE CONTRACT CLAUSE WAS INTENDED TO PROTECT PEOPLE FROM THE
"FLUCTUATING POLICY" OF THE LEGISLATURE.  THE FEDERALIST, NO. 44, AT
301 (COOKE ED. 1961).  TODAY'S MAJORITY HOLDS THAT PEOPLE ARE NOT
PROTECTED FROM THE FLUCTUATING POLICY OF THE LEGISLATURE, SO LONG AS
THE LEGISLATURE ACTS IN ACCORDANCE WITH THE FLUCTUATING POLICY OF THIS
COURT. 

                                IV. 

IN SPITE OF ALL THE COURT'S DISCUSSION OF CLOUDS ON LAND TITLES AND
NEED FOR "EFFICIENT UTILIZATION" OF LAND, THE REAL ISSUE IN THIS CASE
IS NOT WHETHER TEXAS HAS CONSTITUTIONAL POWER TO PASS LEGISLATION TO
CORRECT THESE PROBLEMS, BY LIMITING REINSTATEMENTS TO FIVE YEARS
FOLLOWING FORFEITURE.  I THINK THAT THERE WAS AND IS A CONSTITUTIONAL
WAY FOR TEXAS TO DO THIS.  BUT I THINK THE FIFTH AMENDMENT FORBIDS
TEXAS TO DO SO WITHOUT COMPENSATING THE HOLDERS OF CONTRACTUAL RIGHTS
FOR THE INTERESTS IT WANTS TO DESTROY.  CONTRACTUAL RIGHTS, THIS COURT
HAS HELD, ARE PROPERTY, AND THE FIFTH AMENDMENT REQUIRES THAT PROPERTY
SHALL NOT BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION.  LYNCH V.
UNITED STATES, 292 U.S. 571; SEE ALSO PERRY V. UNITED STATES, 294 U.S.
330; CF. UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373.  THIS
CONSTITUTIONAL REQUIREMENT IS MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT.  SEE GRIGGS V. ALLEGHENY COUNTY, 369 U.S. 84, 85;
PENNSYLVANIA COAL CO. V. MAHON, 260 U.S. 393, 415; CHICAGO, B.&Q.R. CO.
V. CHICAGO, 166 U.S. 226, 241.  THIS NEED TO CLEAR TITLES AND STABILIZE
THE MARKET IN LAND WOULD CERTAINLY BE A VALID PUBLIC PURPOSE TO SUSTAIN
EXERCISE OF THE STATE'S POWER OF EMINENT DOMAIN, AND WHILE THE CONTRACT
CLAUSE PROTECTS THE VALUE OF THE PROPERTY RIGHT IN CONTRACTS, IT DOES
NOT STAND IN THE WAY OF A STATE'S TAKING THOSE PROPERTY RIGHTS AS IT
WOULD ANY OTHER PROPERTY, PROVIDED IT IS WILLING TO PAY FOR WHAT IT HAS
TAKEN.  CONTRIBUTORS TO THE PENNSYLVANIA HOSPITAL V. CITY OF
PHILADELPHIA, 245 U.S. 20; CITY OF CINCINNATI V. LOUISVILLE & N.R. CO.,
223 U.S. 390; LONG ISLAND WATER SUPPLY CO. V. BROOKLYN, 166 U.S. 685;
WEST RIVER BRIDGE CO. V. DIX, 6 HOW.  507.  THE TEXAS STATUTE WHICH THE
COURT UPHOLDS, HOWEVER, TOOK AWAY SIMMONS' CONTRACT RIGHTS WITHOUT ANY
COMPENSATION. 

THE COURT SEEMS TO SAY THAT BECAUSE IT WAS "NECESSARY" TO RAISE MONEY
AND CLEAR TITLES, TEXAS WAS NOT OBLIGATED TO PAY FOR RIGHTS WHICH IT
TOOK.  I SUPPOSE THAT IF TEXAS WERE BUILDING A HIGHWAY AND A MAN'S
HOUSE STOOD IN THE WAY, IT WOULD BE "NECESSARY" TO TEAR IT DOWN.  UNTIL
TODAY I HAD THOUGHT THERE COULD BE NO DOUBT THAT HE WOULD BE ENTITLED
TO JUST COMPENSATION.  YET THE FIFTH AND FOURTEENTH AMENDMENTS PROTECT
HIS RIGHTS NO MORE NOR LESS THAN THEY DO THOSE OF PEOPLE TO WHOM TEXAS
WAS CONTRACTUALLY OBLIGATED.  TEXAS'"NECESSITY" AS SEEN BY THIS COURT
IS THE MOTHER OF A REGRETTABLE JUDICIAL INVENTION WHICH I THINK HAS NO
PLACE IN OUR CONSTITUTIONAL LAW.  (FN23)  OUR CONSTITUTION PROVIDES
THAT PROPERTY NEEDED FOR PUBLIC USE, WHETHER FOR SCHOOLS OR HIGHWAYS OR
ANY OTHER PUBLIC PURPOSE, SHALL BE PAID FOR OUT OF TAX-RAISED FUNDS
FAIRLY CONTRIBUTED BY ALL THE TAXPAYERS, NOT JUST BY A FEW PURCHASERS
OF LAND WHO TRUSTED THE STATE NOT WISELY BUT TOO WELL.  IT IS NOT THE
HAPPIEST OF DAYS FOR ME WHEN ONE OF OUR WEALTHIEST STATES IS PERMITTED
TO ENFORCE A LAW THAT BREAKS FAITH WITH THOSE WHO CONTRACTED WITH IT.
CF. FEDERAL POWER COMM'N V. TUSCARORA INDIAN NATION, 362 U.S. 99, 124
(DISSENTING OPINION). 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  "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."  U.S. CONST., AMEND. I. SEE, E.G., SCALES V. UNITED
STATES, 367 U.S. 203, 259 (DISSENTING OPINION); IN RE ANASTAPLO, 366
U.S. 82, 97 (DISSENTING OPINION); KONIGSBERG V. STATE BAR, 366 U.S. 36,
56 (DISSENTING OPINION); BRADEN V. UNITED STATES, 365 U.S. 431, 438
(DISSENTING OPINION); WILKINSON V. UNITED STATES, 365 U.S. 399, 415
(DISSENTING OPINION); BARENBLATT V. UNITED STATES, 360 U.S. 109, 134
(DISSENTING OPINION); UPHAUS V. WYMAN, 360 U.S. 72, 108 (DISSENTING
OPINION); BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 267 (DISSENTING
OPINION).    FN2  TEX. GEN. LAWS 1895, CH. 47; TEX. GEN. LAWS 1897, CH.
129, AS AMENDED, VERNON'S ANN. CIV. STAT., ART. 5326. 

FN3  TEX. GEN. LAWS 1897, CH. 129, ART. 4218F, AS AMENDED, VERNON'S
ANN. CIV. STAT., ART. 5326. 

FN4  THE TENDER WAS RECEIVED BY THE TEXAS LAND COMMISSIONER FIVE
YEARS AND TWO DAYS AFTER THE FORFEITURE.  THE RECORD DOES NOT INDICATE
WHEN OR HOW THE TENDER WAS SENT OR PRESENTED. 

FN5  THE CONTRACT PRICE FOR THE 620.65 ACRES INVOLVED IN THIS CASE
WAS $1.50 PER ACRE.  THE TEXAS LEGISLATURE IN 1955 SOLD IT TO EL PASO
FOR THE FAIR MARKET VALUE TO BE APPRAISED, "BUT NO LESS THAN $6.50 PER
ACRE."  TEX GEN. & SPEC. LAWS 1955, CH. 278. 

FN6  TEX. GEN. & SPEC. LAWS 1941, CH. 191, SEC. 3, AS AMENDED,
VERNON'S ANN. CIV. STAT., ART. 5326. 

FN7  I CANNOT AGREE WITH THE COURT'S DICTUM THAT THE TEXAS CASES ON
THIS POINT ARE UNCLEAR.  I DO NOT THINK THEY COULD BE MUCH CLEARER.  IN
GULF PRODUCTION CO. V. STATE, 231 S.W. 124, 131, THE TEXAS COURT OF
CIVIL APPEALS SAID: 

"THE PROVISIONS FOR REINSTATEMENT WERE IN EFFECT WHEN KIDD PURCHASED
THE LAND, AND WERE EMBRACED IN THE CONTRACT BETWEEN THE STATE AND KIDD
WHEN THE LATTER PURCHASED, AND NEITHER KIDD NOR THE STATE COULD
THEREAFTER ARBITRARILY AND WITHOUT THE CONSENT OF THE OTHER WRITE INTO
THE CONTRACT ANY PROVISION OR CONDITION VARYING, RESTRICTING, OR
ENLARGING THE TERMS THEREOF." 

THE COURT ALSO OBSERVED: 

"THE PRIMARY OBJECT OF THE STATE IN PLACING ITS PUBLIC DOMAIN UPON
THE MARKET WAS THE SECURING OF ACTUAL SETTLERS OF THESE LANDS.  THE
REVENUES TO BE DERIVED FROM SALES WAS BUT A SECONDARY CONSIDERATION, A
MERE INCIDENT TO THE GREATER PURPOSE OF SUPPLYING HOMES TO THOSE WHO
SOUGHT AND LIVED IN THEM IN GOOD FAITH.  THE WISDOM OF THIS POLICY OF
OUR FOREFATHERS HAS NEVER BEEN SERIOUSLY QUESTIONED, AND THE PROVISION
FOR THE REINSTATEMENT OF SALES FORFEITED WAS AN EXPRESSION OF THE
SPIRIT OF THAT POLICY.  IT WAS RIGHT AND JUST THAT THOSE WHO HAD
SETTLED UPON AND IMPROVED THE STATE'S LANDS IN RESPONSE TO THE
INVITATION OF THE STATE, AND WHO HAD ENDURED THE HARDSHIPS INCIDENT TO
SUCH SETTLEMENT, AND THE PRIVATIONS INCIDENT TO SUCH IMPROVEMENT,
SHOULD BE GIVEN AN OPPORTUNITY TO RETRIEVE THEIR LANDS WHEN FORFEITED
BY REASON OF TEMPORARY MISFORTUNES AND THE CONSEQUENT INABILITY TO MEET
THEIR PAYMENTS IN STRICT COMPLIANCE WITH THEIR OBLIGATIONS. 
FORFEITURES BY STATUTE OR CONTRACT ARE NOT FAVORED.  THEY MUST BE
VIEWED WITH A COLD AND LITERAL SCRUTINY, THAT THE INJURY WROUGHT MAY BE
HELD TO THE MINIMUM.  ON THE OTHER HAND, STATUTES OR CONTRACTS DESIGNED
TO RELIEVE FROM THE RIGORS OF FORFEITURE ARE LOOKED UPON WARMLY AND
CONSTRUED LIBERALLY, SO AS TO AFFORD THE MAXIMUM RELIEF.  AND THIS
RECIPROCAL RULE APPLIES AS WELL TO THE GREAT STATE OF TEXAS AS TO ITS
HUMBLEST CITIZEN."  231 S.W., AT 131.  CF. STATE V. WALDEN, 325 S.W.2D
705 (TEX. CIV. APP.). 

FN8  FLETCHER V. PECK ALSO MADE CLEAR THAT THE CONSTITUTION FORBIDS
IMPAIRMENT OF A CONTRACT WHETHER THE CONTRACT BE EXECUTED OR, AS HERE,
EXECUTORY.  6 CRANCH, AT 136-137. 

FN9  4 WHEAT., AT 200. 

FN10  SEE ALSO, E.G., HONEYMAN V. JACOBS, 306 U.S. 539, 542, AND
CASES THERE CITED; HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S.
398, 430, 434, AND CASES THERE CITED AT N. 13; OSHKOSH WATERWORKS CO.
V. OSHKOSH, 187 U.S. 437, 439. 

FN11  4 WHEAT., AT 197-198. 

FN12  THE BLAISDELL OPINION SAID, 290 U.S., AT 430: 

"CHIEF JUSTICE MARSHALL POINTED OUT THE DISTINCTION BETWEEN
OBLIGATION AND REMEDY.  STURGES V. CROWNINSHIELD, SUPRA, P. 200.  SAID
HE:  'THE DISTINCTION BETWEEN THE OBLIGATION OF A CONTRACT, AND THE
REMEDY GIVEN BY THE LEGISLATURE TO ENFORCE THAT OBLIGATION, HAS BEEN
TAKEN AT THE BAR, AND EXISTS IN THE NATURE OF THINGS.  WITHOUT
IMPAIRING THE OBLIGATION OF THE CONTRACT, THE REMEDY MAY CERTAINLY BE
MODIFIED AS THE WISDOM OF THE NATION SHALL DIRECT.'  AND IN VON HOFFMAN
V. CITY OF QUINCY, SUPRA, PP. 553, 554, THE GENERAL STATEMENT ABOVE
QUOTED WAS LIMITED BY THE FURTHER OBSERVATION THAT 'IT IS COMPETENT FOR
THE STATES TO CHANGE THE FORM OF THE REMEDY, OR TO MODIFY IT OTHERWISE,
AS THEY MAY SEE FIT, PROVIDED NO SUBSTANTIAL RIGHT SECURED BY THE
CONTRACT IS THEREBY IMPAIRED.  NO ATTEMPT HAS BEEN MADE TO FIX
DEFINITELY THE LINE BETWEEN ALTERATIONS OF THE REMEDY, WHICH ARE TO BE
DEEMED LEGITIMATE, AND THOSE WHICH, UNDER THE FORM OF MODIFYING THE
REMEDY, IMPAIR SUBSTANTIAL RIGHTS.  EVERY CASE MUST BE DETERMINED UPON
ITS OWN CIRCUMSTANCES.'" 

LATER, IN HONEYMAN V. JACOBS, 306 U.S. 539, 543, CHIEF JUSTICE
HUGHES, THE AUTHOR OF BLAISDELL, QUOTED WITH APPROVAL THE FOLLOWING
LANGUAGE FROM THE OPINION WHICH HE HAD JOINED IN RICHMOND MORTGAGE &
LOAN CORP. V. WACHOVIA BANK & TRUST CO., 300 U.S. 124, 128: 

"THE LEGISLATURE MAY MODIFY, LIMIT OR ALTER THE REMEDY FOR
ENFORCEMENT OF A CONTRACT WITHOUT IMPAIRING ITS OBLIGATION, BUT IN SO
DOING, IT MAY NOT DENY ALL REMEDY OR SO CIRCUMSCRIBE THE EXISTING
REMEDY WITH CONDITIONS AND RESTRICTIONS AS SERIOUSLY TO IMPAIR THE
VALUE OF THE RIGHT." 

CHIEF JUSTICE HUGHES IN THE JACOBS CASE ALSO REFERRED TO NUMEROUS
PAST CASES AS HAVING DRAWN THIS DISTINCTION, INCLUDING AMONG THEM
BLAISDELL.  SEE 306 U.S., AT 542.  HE CONCLUDED THAT "THE REASONING OF
THE COURT IN RICHMOND MORTGAGE CORP. V. WACHOVIA BANK, SUPRA, IS
APPLICABLE AND GOVERNS OUR DECISION."  306 U.S., AT 543. 

FN13  290 U.S., AT 439. 

FN14  IBID. 

FN15  ID., AT 440.  MR JUSTICE BRANDEIS IN DISCUSSING BLAISDELL THE
FOLLOWING YEAR SAID THAT THE STATUTE IN THAT CASE HAD BEEN UPHELD
BECAUSE IT HAD BEEN FOUND "TO PRESERVE SUBSTANTIALLY THE RIGHT" OF THE
MORTGAGEE TO OBTAIN PAYMENT.  LOUISVILLE JOINT STOCK LAND BANK V.
RADFORD, 295 U.S. 555, 581.   SEE ALSO ID., AT 597-598. 

FN16  ONE SCHOLAR WHO MADE A STUDY OF ALL THE DECISIONS OF THIS COURT
CONCERNING THE CONTRACT CLAUSE HAD THIS TO SAY ABOUT BLAISDELL: 

"THE BLAISDELL CASE, IN THE LIGHT OF SUBSEQUENT DECISIONS, APPEARS
NOW TO HAVE DECIDED MERELY THE VERY NARROW QUESTION OF THE VALIDITY OF
THE PARTICULAR STATUTE UNDER THE SPECIFIC CIRCUMSTANCES THERE
EXISTING.  SO FAR AS ANY GENERAL RULE MAY BE SAID TO HAVE EMERGED, IT
IS MERELY AN APPARENTLY LIMITED EXTENSION OF THE PRINCIPLE THAT
REASONABLE MODIFICATION OF THE REMEDY, ESPECIALLY IF ADEQUATE TIME IS
LEFT FOR COMPLIANCE, DOES NOT CONSTITUTE AN IMPAIRMENT OF THE
OBLIGATION OF CONTRACTS.  IF ANY ADVANCE HAS BEEN MADE, IT CONSISTS IN
THAT ECONOMIC CONDITIONS MAY CREATE AN EMERGENCY IN WHICH A
SCRUPULOUSLY DRAFTED STATUTE MAY CALL UPON THE POLICE POWER TO GRANT
WIDE DISCRETION TO COURTS IN EXTENDING TEMPORARY AND CONDITIONAL RELIEF
TO DEBTORS."  WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION, 119. 

COMPARE THE FOLLOWING LANGUAGE OF MR. JUSTICE BRANDEIS IN WRIGHT V.
VINTON BRANCH, 300 U.S. 440, 469: 

"IT IS URGED THAT THE LIMITATIONS HERE PLACED UPON THE ENFORCEMENT OF
THE MORTGAGE ARE NOT MERELY A MODIFICATION OF THE REMEDY RECOGNIZED AS
PERMISSIBLE.  COMPARE HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S.
398, 434." 

FN17  I DISSENTED IN WOOD V. LOVETT, 313 U.S., AT 372, BECAUSE, AS I
THERE POINTED OUT, I BELIEVED THAT THE STATE LAW IN THAT CASE, WHICH
PROTECTED PURCHASERS OF LAND AGAINST LOSS EVEN THOUGH THEIR TITLES WERE
BASED ONLY ON QUITCLAIM DEEDS, SHOULD HAVE BEEN UPHELD UNDER
BLAISDELL.  EVEN HAD MY DISSENT PREVAILED, HOWEVER, THAT CASE WOULD NOT
HAVE SUPPORTED THE COURT'S HOLDING IN THE CASE BEFORE US. 

FN18  NONE OF THE CASES MENTIONED BY THE COURT INVOLVED LEGISLATION
BY WHICH A STATE ATTEMPTED TO REPUDIATE ITS OWN CONTRACTUAL OBLIGATION
WITHOUT GIVING COMPENSATION, NOR DID ANY OF THEM COME NEAR SUGGESTING
OR IMPLYING THAT A STATE MIGHT DO SO.  HONEYMAN V. JACOBS, 306 U.S.
539, IN AN OPINION BY CHIEF JUSTICE HUGHES, UPHELD A STATE STATUTE
PROVIDING THAT A MORTGAGEE WHO BID AT A FORECLOSURE SALE COULD NOT
OBTAIN A DEFICIENCY JUDGMENT IF THE VALUE OF THE PROPERTY EQUALED OR
EXCEEDED THE AMOUNT OF THE DEBT PLUS COSTS AND INTEREST; THE COURT SAID
THAT THE MORTGAGEE UNDER THIS LAW RECEIVED ALL THE COMPENSATION TO
WHICH HIS CONTRACT ENTITLED HIM, AND THAT THE STATUTE "MERELY
RESTRICTED THE EXERCISE OF THE CONTRACTUAL REMEDY  ...  ."  ID., AT
544, QUOTING FROM RICHMOND MORTGAGE & LOAN CORP. V. WACHOVIA BANK &
TRUST CO., 300 U.S. 124, 131.  VEIX V. SIXTH WARD BUILDING & LOAN
ASSN., 310 U.S. 32, HELD ONLY THAT BY ISSUING SHARES OF STOCK AT A TIME
WHEN STATE LAW PERMITTED SHAREHOLDERS TO WITHDRAW THEIR SHARES IN
EXCHANGE FOR A CASH REFUND A PRIVATE COMPANY REGULATED BY THE STATE
COULD NOT PREVENT THE STATE FROM APPLYING LATER GENERAL LEGISLATION
FORBIDDING SHAREHOLDERS TO SUE FOR THE WITHDRAWAL VALUE; THIS RULE OF
COURSE HAD BEEN RECOGNIZED IN BLAISDELL AND IN CASES WHICH IT CITED,
E.G., HUDSON COUNTY WATER CO. V. MCCARTER, 209 U.S. 349, AND MANIGAULT
V. SPRINGS, 199 U.S. 473.  GELFERT V. NATIONAL CITY BANK, 313 U.S. 221,
UPHELD A NEW YORK LAW WHICH REDEFINED FAIR MARKET VALUE OF PROPERTY
PURCHASED BY MORTGAGEES AT FORCLOSURE SALES; AGAIN EMPHASIZING THAT
CONTRACTS BETWEEN PRIVATE PERSONS COULD NOT PREVENT APPLICATION OF
GENERAL REGULATORY LAWS, THE COURT HELD THAT THIS LAW WAS MERELY A
REGULATION OF THE REMEDY, AND DID NOT AFFECT ANY SUBSTANTIAL RIGHT
GIVEN BY THE CONTRACT, RELYING ON HONEYMAN V. JACOBS, 306 U.S. 539;
RICHMOND MORTGAGE & LOAN CORP. V. WACHOVIA BANK & TRUST CO., 300 U.S.
124; AND BLAISDELL.  FAITOUTE IRON & STEEL CO. V. CITY OF ASBURY PARK,
316 U.S. 502, WHICH UPHELD A LAW BINDING ALL THE CREDITORS OF A
MUNICIPAL CORPORATION TO AN ADJUSTMENT OF CLAIMS IF 85% OF THEM AGREED,
SAID SIMPLY THAT AS A PRACTICAL MATTER THE LAW RATHER THAN IMPAIRING
THE CREDITORS' CONTRACTS WAS NECESSARY TO KEEP THEM FROM BECOMING
WORTHLESS.  EAST NEW YORK SAVINGS BANK V. HAHN, 326 U.S. 230, UPHELD A
MORTGAGE MORATORIUM LAW MUCH LIKE THAT IN BLAISDELL; THE COURT POINTED
OUT THAT THE LAW PROTECTED CREDITORS FROM LOSS BY REQUIRING DEBTORS TO
PAY TAXES, INSURANCE, INTEREST AND INSTALLMENTS ON THE PRINCIPAL, AND
AGAIN EMPHASIZED, CITING MANIGAULT V. SPRINGS, SUPRA, THAT PRIVATE
PERSONS COULD NOT ESCAPE STATE ECONOMIC REGULATORY LEGISLATION SIMPLY
BECAUSE THEY PREVIOUSLY HAD ENTERED CONTRACTS. 

FN19  SEE PART IV, PP. 533-535, INFRA. 

FN20  SEE, E.G., ROCHIN V. CALIFORNIA, 342 U.S. 165, 174 (CONCURRING
OPINION). 

FN21  QUOTING FAITOUTE IRON & STEEL CO. V. CITY OF ASBURY PARK, 316
U.S. 502, 514, WHICH IN TURN QUOTED DAVIS V. MILLS, 194 U.S. 451, 457. 

FN22  SEE GULF PRODUCTION CO. V. STATE, 231 S.W. 124, 131 (TEX. CIV.
APP.), QUOTED N. 7, SUPRA. 

FN23  THE COURT'S OPINION BEARS AN UNCANNY RESEMBLANCE TO ONE I ONCE
SAID I FEARED MIGHT BE RENDERED SOME DAY IF THIS COURT CONTINUED TO
DECIDE CASES BY "BALANCING."  SEE BLACK, THE BILL OF RIGHTS, 35
N.Y.U.L. REV. 865, 877-878, REPRINTED IN CAHN ED., THE GREAT RIGHTS, 57
59.  I THERE SAID, EVIDENTLY TOO OPTIMISTICALLY, "OF COURSE, I WOULD
NOT DECIDE THIS CASE THIS WAY NOR DO I THINK ANY OTHER JUDGE WOULD SO
DECIDE IT TODAY." 
..END :



COX V. LOUISIANA 379 U.S. 536 


NO. 24.  ARGUED OCTOBER 21, 1964 - DECIDED JANUARY 18, 1965 - 244 LA.
1087, 156 SO. 2D 448, REVERSED. 


APPELLANT WAS THE LEADER OF A CIVIL RIGHTS DEMONSTRATION IN BATON
ROUGE, LOUISIANA, OF 2,000 NEGRO STUDENTS PROTESTING SEGREGATION AND
THE ARREST AND IMPRISONMENT THE PREVIOUS DAY OF OTHER NEGRO STUDENTS
WHO HAD PARTICIPATED IN A PROTEST AGAINST RACIAL SECREGATION.  THE
GROUP ASSEMBLED A FEW BLOCKS FROM THE COURTHOUSE, WHERE APPELLANT
IDENTIFIED HIMSELF TO OFFICERS AS THE GROUP'S LEADER AND EXPLAINED THE
PURPOSE OF THE DEMONSTRATION.  FOLLOWING HIS REFUSAL TO DISBAND THE
GROUP, APPELLANT LED IT IN AN ORDERLY MARCH TOWARD THE COURTHOUSE.  IN
THE VICINITY OF THE COURTHOUSE OFFICERS STOPPED APPELLANT WHO, AFTER
EXPLAINING THE PURPOSE AND PROGRAM OF THE DEMONSTRATION, WAS TOLD BY
THE POLICE CHIEF THAT HE COULD HOLD THE MEETING SO LONG AS HE CONFINED
IT TO THE WEST SIDE OF THE STREET.  APPELLANT DIRECTED THE GROUP TO THE
WEST SIDEWALK, ACROSS THE STREET FROM THE COURTHOUSE AND 101 FEET FROM
ITS STEPS.  THERE THE GROUP, STANDING FIVE FEET DEEP AND OCCUPYING
ALMOST THE ENTIRE BLOCK BUT NOT OBSTRUCTING THE STREET, DISPLAYED SIGNS
AND SANG SONGS WHICH EVOKED RESPONSE FROM THE STUDENTS IN THE
COURTHOUSE JAIL.  APPELLANT ADDRESSED THE GROUP.  THE SHERIFF,
CONSTRUING AS INFLAMMATORY APPELLANT'S CONCLUDING EXHORTATION TO THE
STUDENTS TO "SIT IN" AT UPTOWN LUNCH COUNTERS, ORDERED DISPERSAL OF THE
GROUP WHICH, NOT BEING DIRECTLY FORTHCOMING, WAS EFFECTED BY TEAR GAS. 
APPELLANT WAS ARRESTED THE NEXT DAY AND WAS CONVICTED OF PEACE
DISTURBANCE, OBSTRUCTING PUBLIC PASSAGES, AND COURTHOUSE PICKETING. 
THE LOUISIANA SUPREME COURT AFFIRMED THE CONVICTIONS, TWO OF WHICH
(PEACE DISTURBANCE AND OBSTRUCTING PUBLIC PASSAGES) ARE INVOLVED IN
THIS CASE; THE THIRD (COURTHOUSE PICKETING) BEING INVOLVED IN NO. 49,
POST, AT 559.  HELD: 

1.  IN ARRESTING AND CONVICTING APPELLANT UNDER THE CIRCUMSTANCES
DISCLOSED BY THIS RECORD, LOUISIANA DEPRIVED HIM OF HIS RIGHTS OF FREE
SPEECH AND FREE ASSEMBLY IN VIOLATION OF THE FIRST AND FOURTEENTH
AMENDMENTS.  EDWARDS V. SOUTH CAROLINA, 372 U.S. 229; FIELDS V. SOUTH
CAROLINA, 375 U.S. 44, FOLLOWED.  PP. 544-551. 

2.  THE BREACH OF THE PEACE STATUTE IS UNCONSTITUTIONALLY VAGUE IN
ITS OVERLY BROAD SCOPE, FOR LOUISIANA HAS DEFINED "BREACH OF THE PEACE"
AS "TO AGITATE, TO AROUSE FROM A STATE OF REPOSE, TO MOLEST, TO
INTERRUPT, TO HINDER, TO DISQUIET"; YET ONE OF THE VERY FUNCTIONS OF
FREE SPEECH IS TO INVITE DISPUTE.  TERMINIELLO V. CHICAGO, 337 U.S. 1;
STROMBERG V. CALIFORNIA, 283 U.S. 359, FOLLOWED.  PP. 551-552. 

3.  THE PRACTICE IN BATON ROUGE OF ALLOWING LOCAL OFFICIALS
UNFETTERED DISCRETION IN REGULATING THE USE OF STREETS FOR PEACEFUL
PARADES AND MEETINGS NOTWITHSTANDING THE PROHIBITIONS CONTAINED IN THE
STATUTE AGAINST OBSTRUCTING PUBLIC PASSAGES ABRIDGED APPELLANT'S
FREEDOM OF SPEECH AND ASSEMBLY IN VIOLATION OF THE FIRST AND FOURTEENTH
AMENDMENTS.  PP. 553-558. 

(A)  THE LOUISIANA SUPREME COURT CONSTRUED THE OBSTRUCTING PUBLIC
PASSAGES STATUTE AS APPLYING TO PUBLIC ASSEMBLIES WHICH DO NOT HAVE THE
SPECIFIC PURPOSE OF OBSTRUCTING TRAFFIC.  P. 553. 

(B)  A STATE HAS THE RIGHT TO IMPOSE NONDISCRIMINATORY RESTRICTIONS
ON TRAVEL ON CITY STREETS.  P. 554. 

(C)  THE RIGHTS OF FREE SPEECH AND ASSEMBLY DO NOT MEAN THAT EVERYONE
MAY ADDRESS A GROUP AT ANY PUBLIC PLACE AT ANY TIME.  PP. 554-555. 

(D)  COMMUNICATION OF IDEAS BY PICKETING AND MARCHING ON STREETS IS
NOT AFFORDED THE SAME KIND OF PROTECTION UNDER THE FIRST AND FOURTEENTH
AMENDMENTS AS IS PURE SPEECH.  P. 555. 

(E)  ALTHOUGH THE STATUTE ON ITS FACE PRECLUDES ALL STREET ASSEMBLIES
AND PARADES, THE BATON ROUGE AUTHORITIES HAVE NOT SO ENFORCED IT BUT IN
THEIR UNCONTROLLED DISCRETION HAVE PERMITTED PARADES AND STREET
MEETINGS.  PP. 555-557. 

(F)  THE LODGING OF SUCH BROAD DISCRETION IN PUBLIC OFFICIALS
SANCTIONS SUPPRESSION OF FREE EXPRESSION AND FACILITATES DENIAL OF
EQUAL PROTECTION.  PP. 557-558. 

COX V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

APPELLANT, THE REVEREND MR. B. ELTON COX, THE LEADER OF A CIVIL
RIGHTS DEMONSTRATION, WAS ARRESTED AND CHARGED WITH FOUR OFFENSES UNDER
LOUISIANA LAW - CRIMINAL CONSPIRACY, DISTURBING THE PEACE, OBSTRUCTING
PUBLIC PASSAGES, AND PICKETING BEFORE A COURTHOUSE.  IN A CONSOLIDATED
TRIAL BEFORE A JUDGE WITHOUT A JURY, AND ON THE SAME SET OF FACTS, HE
WAS ACQUITTED OF CRIMINAL CONSPIRACY BUT CONVICTED OF THE OTHER THREE
OFFENSES.  HE WAS SENTENCED TO SERVE FOUR MONTHS IN JAIL AND PAY A $200
FINE FOR DISTURBING THE PEACE, TO SERVE FIVE MONTHS IN JAIL AND PAY A
$500 FINE FOR OBSTRUCTING PUBLIC PASSAGES, AND TO SERVE ONE YEAR IN
JAIL AND PAY A $5,000 FINE FOR PICKETING BEFORE A COURTHOUSE.  THE
SENTENCES WERE CUMULATIVE. 

IN ACCORDANCE WITH LOUISIANA PROCEDURE, THE LOUISIANA SUPREME COURT
REVIEWED THE "DISTURBING THE PEACE" AND "OBSTRUCTING PUBLIC PASSAGES"
CONVICTIONS ON CERTIORARI, AND THE "COURTHOUSE PICKETING" CONVICTION ON
APPEAL.  THE LOUISIANA COURT, IN TWO JUDGMENTS, AFFIRMED ALL THREE
CONVICTIONS.  244 LA. 1087, 156 SO. 2D 448; 245 LA. 303, 158 SO. 2D
172.  APPELLANT FILED TWO SEPARATE APPEALS TO THIS COURT FROM THESE
JUDGMENTS CONTENDING THAT THE THREE STATUTES UNDER WHICH HE WAS
CONVICTED WERE UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED.  WE NOTED
PROBABLE JURISDICTION OF BOTH APPEALS, 377 U.S. 921.  THIS CASE, NO.
24, INVOLVES THE CONVICTIONS FOR DISTURBING THE PEACE AND OBSTRUCTING
PUBLIC PASSAGES, AND NO. 49 CONCERNS THE CONVICTION FOR PICKETING
BEFORE A COURTHOUSE. 

                                          I.

                             THE FACTS 

ON DECEMBER 14, 1961, 23 STUDENTS FROM SOUTHERN UNIVERSITY, A NEGRO
COLLEGE, WERE ARRESTED IN DOWNTOWN BATON ROUGE, LOUISIANA, FOR
PICKETING STORES THAT MAINTAINED SEGREGATED LUNCH COUNTERS.  THIS
PICKETING, URGING A BOYCOTT OF THOSE STORES, WAS PART OF A GENERAL
PROTEST MOVEMENT AGAINST RACIAL SEGREGATION, DIRECTED BY THE LOCAL
CHAPTER OF THE CONGRESS OF RACIAL EQUALITY, A CIVIL RIGHTS
ORGANIZATION.  THE APPELLANT, AN ORDAINED CONGREGATIONAL MINISTER, THE
REVEREND MR. B. ELTON COX, A FIELD SECRETARY OF CORE, WAS AN ADVISOR TO
THIS MOVEMENT.  ON THE EVENING OF DECEMBER 14, APPELLANT AND RONNIE
MOORE, STUDENT PRESIDENT OF THE LOCAL CORE CHAPTER, SPOKE AT A MASS
MEETING AT THE COLLEGE.  THE STUDENTS RESOLVED TO DEMONSTRATE THE NEXT
DAY IN FRONT OF THE COURTHOUSE IN PROTEST OF SEGREGATION AND THE ARREST
AND IMPRISONMENT OF THE PICKETERS WHO WERE BEING HELD IN THE PARISH
JAIL LOCATED ON THE UPPER FLOOR OF THE COURTHOUSE BUILDING. 

THE NEXT MORNING ABOUT 2,000 STUDENTS LEFT THE CAMPUS, WHICH WAS
LOCATED APPROXIMATELY FIVE MILES FROM DOWNTOWN BATON ROUGE.  MOST OF
THEM HAD TO WALK INTO THE CITY SINCE THE DRIVERS OF THEIR BUSSES WERE
ARRESTED.  MOORE WAS ALSO ARRESTED AT THE ENTRANCE TO THE CAMPUS WHILE
PARKED IN A CAR EQUIPPED WITH A LOUDSPEAKER, AND CHARGED WITH VIOLATION
OF AN ANTINOISE STATUTE.  BECAUSE MOORE WAS IMMEDIATELY TAKEN OFF TO
JAIL AND THE VICE PRESIDENT OF THE CORE CHAPTER WAS ALREADY IN JAIL FOR
PICKETING, COX FELT IT HIS DUTY TO TAKE OVER THE DEMONSTRATION AND SEE
THAT IT WAS CARRIED OUT AS PLANNED.  HE QUICKLY DROVE TO THE CITY "TO
PICK UP THIS LEADERSHIP AND KEEP THINGS ORDERLY." 

WHEN COX ARRIVED, 1,500 OF THE 2,000 STUDENTS WERE ASSEMBLING AT THE
SITE OF THE OLD STATE CAPITOL BUILDING, TWO AND ONE-HALF BLOCKS FROM
THE COURTHOUSE.  COX WALKED UP AND DOWN CAUTIONING THE STUDENTS TO KEEP
TO ONE SIDE OF THE SIDEWALK WHILE GETTING READY FOR THEIR MARCH TO THE
COURTHOUSE.  THE STUDENTS CIRCLED THE BLOCK IN A FILE TWO OR THREE
ABREAST OCCUPYING ABOUT HALF OF THE SIDEWALK.  THE POLICE HAD LEARNED
OF THE PROPOSED DEMONSTRATION THE NIGHT BEFORE FROM NEWS MEDIA AND
OTHER SOURCES.  CAPTAIN FONT OF THE CITY POLICE DEPARTMENT AND CHIEF
KLING OF THE SHERIFF'S OFFICE, TWO HIGH-RANKING SUBORDINATE OFFICIALS,
APPROACHED THE GROUP AND SPOKE TO COX AT THE NORTHEAST CORNER OF THE
CAPITOL GROUNDS.  COX IDENTIFIED HIMSELF AS THE GROUP'S LEADER, AND,
ACCORDING TO FONT AND KLING, HE EXPLAINED THAT THE STUDENTS WERE
DEMONSTRATING TO PROTEST "THE ILLEGAL ARREST OF SOME OF THEIR PEOPLE
WHO WERE BEING HELD IN JAIL."  THE VERSION OF COX AND HIS WITNESSES
THROUGHOUT WAS THAT THEY CAME NOT "TO PROTEST JUST THE ARREST BUT  ...
ALSO TO PROTEST THE EVIL OF DISCRIMINATION."  KLING ASKED COX TO
DISBAND THE GROUP AND "TAKE THEM BACK FROM WHENCE THEY CAME."  COX DID
NOT ACQUIESCE IN THIS REQUEST BUT TOLD THE OFFICERS THAT THEY WOULD
MARCH BY THE COURTHOUSE, SAY PRAYERS, SING HYMNS, AND CONDUCT A
PEACEFUL PROGRAM OF PROTEST.  THE OFFICER REPEATED HIS REQUEST TO
DISBAND, AND COX AGAIN REFUSED.  KLING AND FONT THEN RETURNED TO THEIR
CAR IN ORDER TO REPORT BY RADIO TO THE SHERIFF AND CHIEF OF POLICE WHO
WERE IN THE IMMEDIATE VICINITY; WHILE THIS WAS GOING ON, THE STUDENTS,
LED BY COX, BEGAN THEIR WALK TOWARD THE COURTHOUSE. 

THEY WALKED IN AN ORDERLY AND PEACEFUL FILE, TWO OR THREE ABREAST,
ONE BLOCK EAST, STOPPING ON THE WAY FOR A RED TRAFFIC LIGHT.  IN THE
CENTER OF THIS BLOCK THEY WERE JOINED BY ANOTHER GROUP OF STUDENTS. 
THE AUGMENTED GROUP NOW TOTALING ABOUT 2,000 (FN1) TURNED THE CORNER
AND PROCEEDED SOUTH, COMING TO A HALT IN THE NEXT BLOCK OPPOSITE THE
COURTHOUSE. 

AS COX, STILL AT THE HEAD OF THE GROUP, APPROACHED THE VICINITY OF
THE COURTHOUSE, HE WAS STOPPED BY CAPTAIN FONT AND INSPECTOR TRIGG AND
BROUGHT TO POLICE CHIEF WINGATE WHITE, WHO WAS STANDING IN THE MIDDLE
OF ST. LOUIS STREET.  THE CHIEF THEN INQUIRED AS TO THE PURPOSE OF THE
DEMONSTRATION.  COX, READING FROM A PREPARED PAPER, OUTLINED HIS
PROGRAM TO WHITE, STATING THAT IT WOULD INCLUDE A SINGING OF THE STAR
SPANGLED BANNER AND A "FREEDOM SONG," RECITATION OF THE LORD'S PRAYER
AND THE PLEDGE OF ALLEGIANCE, AND A SHORT SPEECH.  WHITE TESTIFIED THAT
HE TOLD COX THAT "HE MUST CONFINE" THE DEMONSTRATION "TO THE WEST SIDE
OF THE STREET."  WHITE ADDED, "THIS, OF COURSE, WAS NOT - I DIDN'T MEAN
IT IN THE IMPORT THAT I WAS GIVING HIM ANY PERMISSION TO DO IT, BUT I
WAS PRESENTED WITH SITUATION THAT WAS ACCOMPLISHED, AND I HAD TO MAKE A
DECISION."  COX TESTIFIED THAT THE OFFICIALS AGREED TO PERMIT THE
MEETING.  JAMES ERWIN, NEWS DIRECTOR OF RADIO STATION WIBR, A WITNESS
FOR THE STATE, WAS PRESENT AND OVERHEARD THE CONVERSATION.  HE
TESTIFIED THAT "MY UNDERSTANDING WAS THAT THEY WOULD BE ALLOWED TO
DEMONSTRATE IF THEY STAYED ON THE WEST SIDE OF THE STREET AND STAYED
WITHIN THE RECOGNIZED TIME," (FN2) AND THAT THIS WAS "AGREED TO" BY
WHITE.  (FN3) 

THE STUDENTS WERE THEN DIRECTED BY COX TO THE WEST SIDEWALK, ACROSS
THE STREET FROM THE COURTHOUSE, 101 FEET FROM ITS STEPS.  THEY WERE
LINED UP ON THIS SIDEWALK ABOUT FIVE DEEP AND SPREAD ALMOST THE ENTIRE
LENGTH OF THE BLOCK.  THE GROUP DID NOT OBSTRUCT THE STREET.  IT WAS
CLOSE TO NOON AND, BEING LUNCH TIME, A SMALL CROWD OF 100 TO 300
CURIOUS WHITE PEOPLE, MOSTLY COURTHOUSE PERSONNEL, GATHERED ON THE EAST
SIDEWALK AND COURTHOUSE STEPS, ABOUT 100 FEET FROM THE DEMONSTRATORS. 
SEVENTY-FIVE TO EIGHTY POLICEMEN, INCLUDING CITY AND STATE PATROLMEN
AND MEMBERS OF THE SHERIFF'S STAFF, AS WELL AS MEMBERS OF THE FIRE
DEPARTMENT AND A FIRE TRUCK WERE STATIONED IN THE STREET BETWEEN THE
TWO GROUPS.  RAIN FELL THROUGHOUT THE DEMONSTRATION. 

SEVERAL OF THE STUDENTS TOOK FROM BENEATH THEIR COATS PICKET SIGNS
SIMILAR TO THOSE WHICH HAD BEEN USED THE DAY BEFORE.  THESE SIGNS BORE
LEGENDS SUCH AS "DON'T BUY DISCRIMINATION FOR CHRISTMAS," "SACRIFICE
FOR CHRIST, DON'T BUY," AND NAMED STORES WHICH WERE PROCLAIMED
"UNFAIR."  THEY THEN SANG "GOD BLESS AMERICA," PLEDGED ALLEGIANCE TO
THE FLAG, PRAYED BRIEFLY, AND SANG ONE OR TWO HYMNS, INCLUDING "WE
SHALL OVERCOME."  THE 23 STUDENTS, WHO WERE LOCKED IN JAIL CELLS IN THE
COURTHOUSE BUILDING OUT OF THE SIGHT OF THE DEMONSTRATORS, RESPONDED BY
THEMSELVES SINGING; THIS IN TURN WAS GREETED WITH CHEERS AND APPLAUSE
BY THE DEMONSTRATORS.  APPELLANT GAVE A SPEECH, DESCRIBED BY A STATE'S
WITNESS AS FOLLOWS: 

"HE SAID THAT IN EFFECT THAT IT WAS A PROTEST AGAINST THE ILLEGAL
ARREST OF SOME OF THEIR MEMBERS AND THAT OTHER PEOPLE WERE ALLOWED TO
PICKET  ...  AND HE SAID THAT THEY WERE NOT GOING TO COMMIT ANY
VIOLENCE, (FN4) THAT IF ANYONE SPIT ON THEM, THEY WOULD NOT SPIT BACK
ON THE PERSON THAT DID IT."  (FN5) 

COX THEN SAID: 

"ALL RIGHT.  IT'S LUNCH TIME.  LET'S GO EAT.  THERE ARE TWELVE STORES
WE ARE PROTESTING.  A NUMBER OF THESE STORES HAVE TWENTY COUNTERS; THEY
ACCEPT YOUR MONEY FROM NINETEEN.  THEY WON'T ACCEPT IT FROM THE
TWENTIETH COUNTER.  THIS IS AN ACT OF RACIAL DISCRIMINATION.  THESE
STORES ARE OPEN TO THE PUBLIC.  YOU ARE MEMBERS OF THE PUBLIC.  WE PAY
TAXES TO THE FEDERAL GOVERNMENT AND YOU WHO LIVE HERE PAY TAXES TO THE
STATE."  (FN6) 

IN APPARENT REACTION TO THESE LAST REMARKS, THERE WAS WHAT STATE
WITNESSES DESCRIBED AS "MUTTERING" AND "GRUMBLING" BY THE WHITE
ONLOOKERS.  (FN7) 

THE SHERIFF, DEEMING, AS HE TESTIFIED, COX'S APPEAL TO THE STUDENTS
TO SIT IN AT THE LUNCH COUNTERS TO BE "INFLAMMATORY," THEN TOOK A POWER
MICROPHONE AND SAID, "NOW, YOU HAVE BEEN ALLOWED TO DEMONSTRATE.  UP
UNTIL NOW YOUR DEMONSTRATION HAS BEEN MORE OR LESS PEACEFUL, BUT WHAT
YOU ARE DOING NOW IS A DIRECT VIOLATION OF THE LAW, A DISTURBANCE OF
THE PEACE, AND IT HAS GOT TO BE BROKEN UP IMMEDIATELY."  THE TESTIMONY
AS TO WHAT THEN HAPPENED IS DISPUTED.  SOME OF THE STATE'S WITNESSES
TESTIFIED THAT COX SAID, "DON'T MOVE"; OTHERS STATED THAT HE MADE A
"GESTURE OF DEFIANCE."  IT IS CLEAR FROM THE RECORD, HOWEVER, THAT COX
AND THE DEMONSTRATORS DID NOT THEN AND THERE BREAK UP THE
DEMONSTRATION.  TWO OF THE SHERIFF'S DEPUTIES IMMEDIATELY STARTED
ACROSS THE STREET AND TOLD THE GROUP, "YOU HAVE HEARD WHAT THE SHERIFF
SAID, NOW, DO WHAT HE SAID."  A STATE WITNESS TESTIFIED THAT THEY PUT
THEIR HANDS ON THE SHOULDERS OF SOME OF THE STUDENTS "AS THOUGH TO
SHOVE THEM AWAY." 

ALMOST IMMEDIATELY THEREAFTER - WITHIN A TIME ESTIMATED VARIOUSLY AT
TWO TO FIVE MINUTES - ONE OF THE POLICEMEN EXPLODED A TEAR GAS SHELL AT
THE CROWD.  THIS WAS FOLLOWED BY SEVERAL OTHER SHELLS.  THE
DEMONSTRATORS QUICKLY DISPERSED, RUNNING BACK TOWARDS THE STATE CAPITOL
AND THE DOWNTOWN AREA; COX TRIED TO CALM THEM AS THEY RAN AND WAS
HIMSELF ONE OF THE LAST TO LEAVE. 

NO NEGROES PARTICIPATING IN THE DEMONSTRATION WERE ARRESTED ON THAT
DAY.  THE ONLY PERSON THEN ARRESTED WAS A YOUNG WHITE MAN, NOT A PART
OF THE DEMONSTRATION, WHO WAS ARRESTED "BECAUSE HE WAS CAUSING A
DISTURBANCE."  THE NEXT DAY APPELLANT WAS ARRESTED AND CHARGED WITH THE
FOUR OFFENSES ABOVE DESCRIBED. 

            II.

                        THE BREACH OF THE PEACE CONVICTION. 

APPELLANT WAS CONVICTED OF VIOLATING A LOUISIANA "DISTURBING THE
PEACE" STATUTE, WHICH PROVIDES: 

"WHOEVER WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR UNDER
CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED THEREBY
...  CROWDS OR CONGREGATES WITH OTHERS  ...  IN OR UPON  ...  A PUBLIC
STREET OR PUBLIC HIGHWAY, OR UPON A PUBLIC SIDEWALK, OR ANY OTHER
PUBLIC PLACE OR BUILDING  ...  AND WHO FAILS OR REFUSES TO DISPERSE AND
MOVE ON  ...  WHEN ORDERED SO TO DO BY ANY LAW ENFORCEMENT OFFICER OF
ANY MUNICIPALITY, OR PARISH, IN WHICH SUCH ACT OR ACTS ARE COMMITTED,
OR BY ANY LAW ENFORCEMENT OFFICER OF THE STATE OF LOUISIANA, OR ANY
OTHER AUTHORIZED PERSON  ...  SHALL BE GUILTY OF DISTURBING THE
PEACE."  LA.  REV. STAT. SEC. 14:103.1 (CUM. SUPP. 1962). 

IT IS CLEAR TO US THAT ON THE FACTS OF THIS CASE, WHICH ARE
STRIKINGLY SIMILAR TO THOSE PRESENT IN EDWARDS V. SOUTH CAROLINA, 372
U.S. 229, AND FIELDS V. SOUTH CAROLINA, 375 U.S. 44, LOUISIANA
INFRINGED APPELLANT'S RIGHTS OF FREE SPEECH AND FREE ASSEMBLY BY
CONVICTING HIM UNDER THIS STATUTE.  AS IN EDWARDS, WE DO NOT FIND IT
NECESSARY TO PASS UPON APPELLANT'S CONTENTION THAT THERE WAS A COMPLETE
ABSENCE OF EVIDENCE SO THAT HIS CONVICTION DEPRIVED HIM OF LIBERTY
WITHOUT DUE PROCESS OF LAW.  CF. THOMPSON V. LOUISVILLE, 362 U.S. 199. 
WE HOLD THAT LOUISIANA MAY NOT CONSTITUTIONALLY PUNISH APPELLANT UNDER
THIS STATUTE FOR ENGAGING IN THE TYPE OF CONDUCT WHICH THIS RECORD
REVEALS, AND ALSO THAT THE STATUTE AS AUTHORITATIVELY INTERPRETED BY
THE LOUISIANA SUPREME COURT IS UNCONSTITUTIONALLY BROAD IN SCOPE. 

THE LOUISIANA COURTS HAVE HELD THAT APPELLANT'S CONDUCT CONSTITUTED A
BREACH OF THE PEACE UNDER STATE LAW, AND, AS IN EDWARDS, "WE MAY ACCEPT
THEIR DECISION AS BINDING UPON US TO THAT EXTENT," EDWARDS V. SOUTH
CAROLINA, SUPRA, AT 235; BUT OUR INDEPENDENT EXAMINATION OF THE RECORD,
WHICH WE ARE REQUIRED TO MAKE, (FN8) SHOWS NO CONDUCT WHICH THE STATE
HAD A RIGHT TO PROHIBIT AS A BREACH OF THE PEACE. 

APPELLANT LED A GROUP OF YOUNG COLLEGE STUDENTS WHO WISHED "TO
PROTEST SEGREGATION" AND DISCRIMINATION AGAINST NEGROES AND THE ARREST
OF 23 FELLOW STUDENTS.  THEY ASSEMBLED PEACEABLY AT THE STATE CAPITOL
BUILDING AND MARCHED TO THE COURTHOUSE WHERE THEY SANG, PRAYED AND
LISTENED TO A SPEECH.  A READING OF THE RECORD REVEALS AGREEMENT ON THE
PART OF THE STATE'S WITNESSES THAT COX HAD THE DEMONSTRATION "VERY WELL
CONTROLLED," AND UNTIL THE END OF COX'S SPEECH, THE GROUP WAS PERFECTLY
"ORDERLY."  SHERIFF CLEMMONS TESTIFIED THAT THE CROWD'S ACTIVITIES WERE
NOT "OBJECTIONABLE" BEFORE THAT TIME.  THEY BECAME OBJECTIONABLE,
ACCORDING TO THE SHERIFF HIMSELF, WHEN COX, CONCLUDING HIS SPEECH,
URGED THE STUDENTS TO GO UPTOWN AND SIT IN AT LUNCH COUNTERS.  THE
SHERIFF TESTIFIED THAT THE SOLE ASPECT OF THE PROGRAM TO WHICH HE
OBJECTED WAS "THE INFLAMMATORY MANNER IN WHICH HE (COX) ADDRESSED THAT
CROWD AND TOLD THEM TO GO ON UP TOWN, GO TO FOUR PLACES ON THE PROTEST
LIST, SIT DOWN AND IF THEY DON'T FEED YOU, SIT THERE FOR ONE HOUR." 
YET THIS PART OF COX'S SPEECH OBVIOUSLY DID NOT DEPRIVE THE
DEMONSTRATION OF ITS PROTECTED CHARACTER UNDER THE CONSTITUTION AS FREE
SPEECH AND ASSEMBLY.  SEE EDWARDS V. SOUTH CAROLINA, SUPRA; CANTWELL V.
CONNECTICUT, 310 U.S. 296; THORNHILL V. ALABAMA, 310 U.S. 88; GARNER V.
LOUISIANA, 368 U.S. 157, 185 (CONCURRING OPINION OF MR. JUSTICE
HARLAN). 

THE STATE ARGUES, HOWEVER, THAT WHILE THE DEMONSTRATORS STARTED OUT
TO BE ORDERLY, THE LOUD CHEERING AND CLAPPING BY THE STUDENTS IN
RESPONSE TO THE SINGING FROM THE JAIL CONVERTED THE PEACEFUL ASSEMBLY
INTO A RIOTOUS ONE.  (FN9)  THE RECORD, HOWEVER, DOES NOT SUPPORT THIS
ASSERTION.  IT IS TRUE THAT THE STUDENTS, IN RESPONSE TO THE SINGING OF
THEIR FELLOWS WHO WERE IN CUSTODY, CHEERED AND APPLAUDED.  HOWEVER, THE
MEETING WAS AN OUTDOOR MEETING AND A KEY STATE WITNESS TESTIFIED THAT
WHILE THE SINGING WAS LOUD, IT WAS NOT DISORDERLY.  THERE IS, MOREOVER,
NO INDICATION THAT THE MOOD OF THE STUDENTS WAS EVER HOSTILE,
AGGRESSIVE, OR UNFRIENDLY.  OUR CONCLUSION THAT THE ENTIRE MEETING FROM
THE BEGINNING UNTIL ITS DISPERSAL BY TEAR GAS WAS ORDERLY (FN10) AND
NOT RIOTOUS IS CONFIRMED BY A FILM OF THE EVENTS TAKEN BY A TELEVISION
NEWS PHOTOGRAPHER, WHICH WAS OFFERED IN EVIDENCE AS A STATE EXHIBIT. 
WE HAVE VIEWED THE FILM, AND IT REVEALS THAT THE STUDENTS, THOUGH THEY
UNDOUBTEDLY CHEERED AND CLAPPED, WERE WELL-BEHAVED THROUGHOUT.  MY
BROTHER BLACK, CONCURRING IN THIS OPINION AND DISSENTING IN NO. 49,
POST, AGREES "THAT THE RECORD DOES NOT SHOW BOISTEROUS OR VIOLENT
CONDUCT OR INDECENT LANGUAGE ON THE PART OF THE  ...  " STUDENTS. 
POST, AT 583.  THE SINGING AND CHEERING DO NOT SEEM TO US TO DIFFER
SIGNIFICANTLY FROM THE CONSTITUTIONALLY PROTECTED ACTIVITY OF THE
DEMONSTRATORS IN EDWARDS, (FN11) WHO LOUDLY SANG "WHILE STAMPING THEIR
FEET AND CLAPPING THEIR HANDS."  EDWARDS V. SOUTH CAROLINA, SUPRA, AT
233.  (FN12) 

OUR CONCLUSION THAT THE RECORD DOES NOT SUPPORT THE CONTENTION THAT
THE STUDENTS' CHEERING, CLAPPING AND SINGING CONSTITUTED A BREACH OF
THE PEACE IS CONFIRMED BY THE FACT THAT THESE WERE NOT RELIED ON AS A
BASIS FOR CONVICTION BY THE TRIAL JUDGE, WHO, RATHER, STATED AS HIS
REASON FOR CONVICTING COX OF DISTURBING THE PEACE THAT "IT MUST BE
RECOGNIZED TO BE INHERENTLY DANGEROUS AND A BREACH OF THE PEACE TO
BRING 1,500 PEOPLE, COLORED PEOPLE, DOWN IN THE PREDOMINANTLY WHITE
BUSINESS DISTRICT IN THE CITY OF BATON ROUGE AND CONGREGATE ACROSS THE
STREET FROM THE COURTHOUSE AND SING SONGS AS DESCRIBED TO ME BY THE
DEFENDANT AS THE CORE NATIONAL ANTHEM CARRYING LINES SUCH AS 'BLACK AND
WHITE TOGETHER' AND TO URGE THOSE 1,500 PEOPLE TO DESCEND UPON OUR
LUNCH COUNTERS AND SIT THERE UNTIL THEY ARE SERVED.  THAT HAS TO BE AN
INHERENT BREACH OF THE PEACE, AND OUR STATUTE 14:103.1 HAS MADE IT
SO." 

FINALLY, THE STATE CONTENDS THAT THE CONVICTION SHOULD BE SUSTAINED
BECAUSE OF FEAR EXPRESSED BY SOME OF THE STATE WITNESSES THAT "VIOLENCE
WAS ABOUT TO ERUPT" BECAUSE OF THE DEMONSTRATION.  IT IS VIRTUALLY
UNDISPUTED, HOWEVER, THAT THE STUDENTS THEMSELVES WERE NOT VIOLENT AND
THREATENED NO VIOLENCE.  THE FEAR OF VIOLENCE SEEMS TO HAVE BEEN BASED
UPON THE REACTION OF THE GROUP OF WHITE CITIZENS LOOKING ON FROM ACROSS
THE STREET.  ONE STATE WITNESS TESTIFIED THAT "HE FELT THE SITUATION
WAS GETTING OUT OF HAND" AS ON THE COURTHOUSE SIDE OF ST. LOUIS STREET
"WERE SMALL KNOTS OR GROUPS OF WHITE CITIZENS WHO WERE MUTTERING WORDS,
WHO SEEMED A LITTLE BIT AGITATED."  A POLICE OFFICER STATED THAT THE
REACTION OF THE WHITE CROWD WAS NOT VIOLENT, BUT "WAS RUMBLINGS." 
OTHERS FELT THE ATMOSPHERE BECAME "TENSE" BECAUSE OF "MUTTERINGS,"
"GRUMBLING," AND "JEERING" FROM THE WHITE GROUP.  THERE IS NOT
INDICATION, HOWEVER, THAT ANY MEMBER OF THE WHITE GROUP THREATENED
VIOLENCE.  AND THIS SMALL CROWD ESTIMATED AT BETWEEN 100 AND 300 WAS
SEPARATED FROM THE STUDENTS BY "SEVENTY-FIVE TO EIGHTY" ARMED
POLICEMEN, INCLUDING "EVERY AVAILABLE SHIFT OF THE CITY POLICE," THE
"SHERIFF'S OFFICE IN FULL COMPLEMENT," AND "ADDITIONAL HELP FROM THE
STATE POLICE," ALONG WITH A "FIRE TRUCK AND THE FIRE DEPARTMENT."  AS
INSPECTOR TRIGG TESTIFIED, THEY COULD HAVE HANDLED THE CROWD. 

THIS SITUATION, LIKE THAT IN EDWARDS, IS "A FAR CRY FROM THE
SITUATION IN FEINER V. NEW YORK, 340 U.S. 315."  SEE EDWARDS V. SOUTH
CAROLINA, SUPRA, AT 236.  NOR IS THERE ANY EVIDENCE HERE OF "FIGHTING
WORDS."  SEE CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568.  HERE AGAIN, AS
IN EDWARDS, THIS EVIDENCE "SHOWED NO MORE THAN THAT THE OPINIONS WHICH
...  THE STUDENTS WERE PEACEABLY EXPRESSING WERE SUFFICIENTLY OPPOSED
TO THE VIEWS OF THE MAJORITY OF THE COMMUNITY TO ATTRACT A CROWD AND
NECESSITATE POLICE PROTECTION."  EDWARDS V. SOUTH CAROLINA, SUPRA, AT
237.  CONCEDING THIS WAS SO, THE "COMPELLING ANSWER  ...  IS THAT
CONSTITUTIONAL RIGHTS MAY NOT BE DENIED SIMPLY BECAUSE OF HOSTILITY TO
THEIR ASSERTION OR EXERCISE."  WATSON V. MEMPHIS, 373 U.S. 526, 535. 

THERE IS AN ADDITIONAL REASON WHY THIS CONVICTION CANNOT BE
SUSTAINED.  THE STATUTE AT ISSUE IN THIS CASE, AS AUTHORITATIVELY
INTERPRETED BY THE LOUISIANA SUPREME COURT, IS UNCONSTITUTIONALLY VAGUE
IN ITS OVERLY BROAD SCOPE.  THE STATUTORY CRIME CONSISTS OF TWO
ELEMENTS:  (1)  CONGRETATING WITH OTHERS "WITH INTENT TO PROVOKE A
BREACH OF THE PEACE, OR UNDER CIRCUMSTANCES SUCH THAT A BREACH OF THE
PEACE MAY BE OCCASIONED," AND (2) A REFUSAL TO MOVE ON AFTER HAVING
BEEN ORDERED TO DO SO BY A LAW ENFORCEMENT OFFICER.  WHILE THE SECOND
PART OF THIS OFFENSE IS NARROW AND SPECIFIC, THE FIRST ELEMENT IS NOT. 
THE LOUISIANA SUPREME COURT IN THIS CASE DEFINED THE TERM "BREACH OF
THE PEACE" AS "TO AGITATE, TO AROUSE FROM A STATE OF REPOSE, TO MOLEST,
TO INTERRUPT, TO HINDER, TO DISQUIET."  244 LA., AT 1105, 156 SO. 2D,
AT 455.  IN EDWARDS, DEFENDANTS HAD BEEN CONVICTED OF A COMMON-LAW
CRIME SIMILARLY DEFINED BY THE SOUTH CAROLINA SUPREME COURT.  BOTH
DEFINITIONS WOULD ALLOW PERSONS TO BE PUNISHED MERELY FOR PEACEFULLY
EXPRESSING UNPOPULAR VIEWS.  YET, A "FUNCTION OF FREE SPEECH UNDER OUR
SYSTEM OF GOVERNMENT IS TO INVITE DISPUTE.  IT MAY INDEED BEST SERVE
ITS HIGH PURPOSE WHEN IT INDUCES A CONDITION OF UNREST, CREATES
DISSATISFACTION WITH CONDITIONS AS THEY ARE, OR EVEN STIRS PEOPLE TO
ANGER.  SPEECH IS OFTEN PROVOCATIVE AND CHALLENGING.  IT MAY STRIKE AT
PREJUDICES AND PRECONCEPTIONS AND HAVE PROFOUND UNSETTLING EFFECTS AS
IT PRESSES FOR ACCEPTANCE OF AN IDEA.  THIS IS WHY FREEDOM OF SPEECH
...  IS  ...  PROTECTED AGAINST CENSORSHIP OR PUNISHMENT  ...  .  THERE
IS NO ROOM UNDER OUR CONSTITUTION FOR A MORE RESTRICTIVE VIEW.  FOR THE
ALTERNATIVE WOULD LEAD TO STANDARDIZATION OF IDEAS EITHER BY
LEGISLATURES, COURTS, OR DOMINANT POLITICAL OR COMMUNITY GROUPS." 
TERMINIELLO V. CHICAGO, 337 U.S. 1, 4-5.  IN TERMINIELLO CONVICTIONS
WERE NOT ALLOWED TO STAND BECAUSE THE TRIAL JUDGE CHARGED THAT SPEECH
OF THE DEFENDANTS COULD BE PUNISHED AS A BREACH OF THE PEACE "'IF IT
STIRS THE PUBLIC TO ANGER, INVITES DISPUTE, BRINGS ABOUT A CONDITION OF
UNREST, OR CREATES A DISTURBANCE, OR IF IT MOLESTS THE INHABITANTS IN
THE ENJOYMENT OF PEACE AND QUIET BY AROUSING ALARM.'"  ID., AT 3.  THE
LOUISIANA STATUTE, AS INTERPRETED BY THE LOUISIANA COURT, IS AT LEAST
AS LIKELY TO ALLOW CONVICTION FOR INNOCENT SPEECH AS WAS THE CHARGE OF
THE TRIAL JUDGE IN TERMINIELLO.  THEREFORE, AS IN TERMINIELLO AND
EDWARDS THE CONVICTION UNDER THIS STATUTE MUST BE REVERSED AS THE
STATUTE IS UNCONSTITUTIONAL IN THAT IT SWEEPS WITHIN ITS BROAD SCOPE
ACTIVITIES THAT ARE CONSTITUTIONALLY PROTECTED FREE SPEECH AND
ASSEMBLY.  MAINTENANCE OF THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION
IS A BASIC TENET OF OUR CONSTITUTIONAL DEMOCRACY.  AS CHIEF JUSTICE
HUGHES STATED IN STROMBERG V. CALIFORNIA, 283 U.S. 359, 369:  "A
STATUTE WHICH UPON ITS FACE, AND AS AUTHORITATIVELY CONSTRUED, IS SO
VAGUE AND INDEFINITE AS TO PERMIT THE PUNISHMENT OF THE FAIR USE OF
THIS OPPORTUNITY IS REPUGNANT TO THE GUARANTY OF LIBERTY CONTAINED IN
THE FOURTEENTH AMENDMENT." 

FOR ALL THESE REASONS WE HOLD THAT APPELLANT'S FREEDOMS OF SPEECH AND
ASSEMBLY, SECURED TO HIM BY THE FIRST AMENDMENT, AS APPLIED TO THE
STATES BY THE FOURTEENTH AMENDMENT, WERE DENIED BY HIS CONVICTION FOR
DISTURBING THE PEACE.  THE CONVICTION ON THIS CHARGE CANNOT STAND. 

                            III. 

    THE OBSTRUCTING PUBLIC PASSAGES CONVICTION. 

WE NOW TURN TO THE ISSUE OF THE VALIDITY OF APPELLANT'S CONVICTION
FOR VIOLATING THE LOUISIANA STATUTE, LA. REV. STAT. SEC. 14:100.1 (CUM.
SUPP. 1962), WHICH PROVIDES:

         OBSTRUCTING PUBLIC PASSAGES. 

"NO PERSON SHALL WILFULLY OBSTRUCT THE FREE, CONVENIENT AND NORMAL
USE OF ANY PUBLIC SIDEWALK, STREET, HIGHWAY, BRIDGE, ALLEY, ROAD, OR
OTHER PASSAGEWAY, OR THE ENTRANCE, CORRIDOR OR PASSAGE OF ANY PUBLIC
BUILDING, STRUCTURE, WATERCRAFT OR FERRY, BY IMPEDING, HINDERING,
STIFLING, RETARDING OR RESTRAINING TRAFFIC OR PASSAGE THEREON OR
THEREIN. 

"PROVIDING HOWEVER NOTHING HEREIN CONTAINED SHALL APPLY TO A BONA
FIDE LEGITIMATE LABOR ORGANIZATION OR TO ANY OF ITS LEGAL ACTIVITIES
SUCH AS PICKETING, LAWFUL ASSEMBLY OR CONCERTED ACTIVITY IN THE
INTEREST OF ITS MEMBERS FOR THE PURPOSE OF ACCOMPLISHING OR SECURING
MORE FAVORABLE WAGE STANDARDS, HOURS OF EMPLOYMENT AND WORKING
CONDITIONS." 

APPELLANT WAS CONVICTED UNDER THIS STATUTE, NOT FOR LEADING THE MARCH
TO THE VICINITY OF THE COURTHOUSE, WHICH THE LOUISIANA SUPREME COURT
STATED TO HAVE BEEN "ORDERLY," 244 LA., AT 1096, 156 SO. 2D, AT 451,
BUT FOR LEADING THE MEETING ON THE SIDEWALK ACROSS THE STREET FROM THE
COURTHOUSE.  ID., AT 1094, 1106-1107, 156 SO. 2D, AT 451, 455.  IN
UPHOLDING APPELLANT'S CONVICTION UNDER THIS STATUTE, THE LOUISIANA
SUPREME COURT THUS CONSTRUED THE STATUTE SO AS TO APPLY TO PUBLIC
ASSEMBLIES WHICH DO NOT HAVE AS THEIR SPECIFIC PURPOSE THE OBSTRUCTION
OF TRAFFIC.  THERE IS NO DOUBT FROM THE RECORD IN THIS CASE THAT THIS
FAR SIDEWALK WAS OBSTRUCTED, AND THUS, AS SO CONSTRUED, APPELLANT
VIOLATED THE STATUTE. 

APPELLANT, HOWEVER, CONTENDS THAT AS SO CONSTRUED AND APPLIED IN THIS
CASE, THE STATUTE IS AN UNCONSTITUTIONAL INFRINGEMENT ON FREEDOM OF
SPEECH AND ASSEMBLY.  THIS CONTENTION ON THE FACTS HERE PRESENTED
RAISES AN ISSUE WITH WHICH THIS COURT HAS DEALT IN MANY DECISIONS, THAT
IS, THE RIGHT OF A STATE OR MUNICIPALITY TO REGULATE THE USE OF CITY
STREETS AND OTHER FACILITIES TO ASSURE THE SAFETY AND CONVENIENCE OF
THE PEOPLE IN THEIR USE AND THE CONCOMITANT RIGHT OF THE PEOPLE OF FREE
SPEECH AND ASSEMBLY.  SEE LOVELL V. GRIFFIN, 303 U.S. 444; HAGUE V.
CIO, 307 U.S. 496; SCHNEIDER V. STATE, 308 U.S. 147; THORNHILL V.
ALABAMA, 310 U.S. 88; CANTWELL V. CONNECTICUT, 310 U.S. 296; COX V. NEW
HAMPSHIRE, 312 U.S. 569; LARGENT V. TEXAS, 318 U.S. 418; SAIA V. NEW
YORK, 334 U.S. 558; KOVACS V. COOPER, 336 U.S. 77; NIEMOTKO V.
MARYLAND, 340 U.S. 268; KUNZ V. NEW YORK, 340 U.S. 290; POULOS V. NEW
HAMPSHIRE, 345 U.S. 395. 

FROM THESE DECISIONS CERTAIN CLEAR PRINCIPLES EMERGE.  THE RIGHTS OF
FREE SPEECH AND ASSEMBLY, WHILE FUNDAMENTAL IN OUR DEMOCRATIC SOCIETY,
STILL DO NOT MEAN THAT EVERYONE WITH OPINIONS OR BELIEFS TO EXPRESS MAY
ADDRESS A GROUP AT ANY PUBLIC PLACE AND AT ANY TIME.  THE
CONSTITUTIONAL GUARANTEE OF LIBERTY IMPLIES THE EXISTENCE OF AN
ORGANIZED SOCIETY MAINTAINING PUBLIC ORDER, WITHOUT WHICH LIBERTY
ITSELF WOULD BE LOST IN THE EXCESSES OF ANARCHY.  THE CONTROL OF TRAVEL
ON THE STREETS IS A CLEAR EXAMPLE OF GOVERNMENTAL RESPONSIBILITY TO
INSURE THIS NECESSARY ORDER.  A RESTRICTION IN THAT RELATION, DESIGNED
TO PROMOTE THE PUBLIC CONVENIENCE IN THE INTEREST OF ALL, AND NOT
SUSCEPTIBLE TO ABUSES OF DISCRIMINATORY APPLICATION, 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 LIGHT BECAUSE THIS WAS THOUGHT
TO BE A MEANS OF SOCIAL PROTEST.  NOR COULD ONE, CONTRARY TO TRAFFIC
REGULATIONS, INSIST UPON A STREET MEETING IN THE MIDDLE OF TIMES SQUARE
AT THE RUSH HOUR AS A FORM OF FREEDOM OF SPEECH OR ASSEMBLY. 
GOVERNMENTAL AUTHORITIES HAVE THE DUTY AND RESPONSIBILITY TO KEEP THEIR
STREETS OPEN AND AVAILABLE FOR MOVEMENT.  A GROUP OF DEMONSTRATORS
COULD NOT INSIST UPON THE RIGHT TO CORDON OFF A STREET, OR ENTRANCE TO
A PUBLIC OR PRIVATE BUILDING, AND ALLOW NO ONE TO PASS WHO DID NOT
AGREE TO LISTEN TO THEIR EXHORTATIONS.  SEE LOVELL V. GRIFFIN, SUPRA,
AT 451; COX V. NEW HAMPSHIRE, SUPRA, AT 574; SCHNEIDER V. STATE, SUPRA,
AT 160-161; CANTWELL V. CONNECTICUT, SUPRA, AT 306-307; GIBONEY V.
EMPIRE STORAGE & ICE CO., 336 U.S. 490; POULOS V. NEW HAMPSHIRE, SUPRA,
AT 405-408; SEE ALSO, EDWARDS V. SOUTH CAROLINA, SUPRA, AT 236. 

WE EMPHATICALLY REJECT THE NOTION URGED BY APPELLANT THAT THE FIRST
AND FOURTEENTH AMENDMENTS AFFORD THE SAME KIND OF FREEDOM TO THOSE WHO
WOULD COMMUNICATE IDEAS BY CONDUCT SUCH AS PATROLLING, MARCHING, AND
PICKETING ON STREETS AND HIGHWAYS, AS THESE AMENDMENTS AFFORD TO THOSE
WHO COMMUNICATE IDEAS BY PURE SPEECH.  SEE THE DISCUSSION AND CASES
CITED IN NO. 49, POST, AT 563.  WE REAFFIRM THE STATEMENT OF THE COURT
IN GIBONEY V. EMPIRE STORAGE & ICE CO., SUPRA, AT 502, THAT "IT HAS
NEVER BEEN DEEMED AN ABRIDGMENT OF FREEDOM OF SPEECH OR PRESS TO MAKE A
COURSE OF CONDUCT ILLEGAL MERELY BECAUSE THE CONDUCT WAS IN PART
INITIATED, EVIDENCED, OR CARRIED OUT BY MEANS OF LANGUAGE, EITHER
SPOKEN, WRITTEN, OR PRINTED."    WE HAVE NO OCCASION IN THIS CASE TO
CONSIDER THE CONSTITUTIONALITY OF THE UNIFORM, CONSISTENT, AND
NONDISCRIMINATORY APPLICATION OF A STATUTE FORBIDDING ALL ACCESS TO
STREETS AND OTHER PUBLIC FACILITIES FOR PARADES AND MEETINGS.  (FN13)
ALTHOUGH THE STATUTE HERE INVOLVED ON ITS FACE PRECLUDES ALL STREET
ASSEMBLIES AND PARADES, (FN14) IT HAS NOT BEEN SO APPLIED AND ENFORCED
BY THE BATON ROUGE AUTHORITIES.  CITY OFFICIALS WHO TESTIFIED FOR THE
STATE CLEARLY INDICATED THAT CERTAIN MEETINGS AND PARADES ARE PERMITTED
IN BATON ROUGE, EVEN THOUGH THEY HAVE THE EFFECT OF OBSTRUCTING
TRAFFIC, PROVIDED PRIOR APPROVAL IS OBTAINED.  THIS WAS CONFIRMED IN
ORAL ARGUMENT BEFORE THIS COURT BY COUNSEL FOR THE STATE.  HE STATED
THAT PARADES AND MEETINGS ARE PERMITTED, BASED ON "ARRANGEMENTS  ...
MADE WITH OFFICIALS."  THE STATUTE ITSELF PROVIDES NO STANDARDS FOR THE
DETERMINATION OF LOCAL OFFICIALS AS TO WHICH ASSEMBLIES TO PERMIT OR
WHICH TO PROHIBIT.  NOR ARE THERE ANY ADMINISTRATIVE REGULATIONS ON
THIS SUBJECT WHICH HAVE BEEN CALLED TO OUR ATTENTION.  (FN15)  FROM ALL
THE EVIDENCE BEFORE US IT APPEARS THAT THE AUTHORITIES IN BATON ROUGE
PERMIT OR PROHIBIT PARADES OR STREET MEETINGS IN THEIR COMPLETELY
UNCONTROLLED DISCRETION. 

THE SITUATION IS THUS THE SAME AS IF THE STATUTE ITSELF EXPRESSLY
PROVIDED THAT THERE COULD ONLY BE PEACEFUL PARADES OR DEMONSTRATIONS IN
THE UNBRIDLED DISCRETION OF THE LOCAL OFFICIALS.  THE PERVASIVE
RESTRAINT ON FREEDOM OF DISCUSSION BY THE PRACTICE OF THE AUTHORITIES
UNDER THE STATUTE IS NOT ANY LESS EFFECTIVE THAN A STATUTE EXPRESSLY
PERMITTING SUCH SELECTIVE ENFORCEMENT.  A LONG LINE OF CASES IN THIS
COURT MAKES IT CLEAR THAT A STATE OR MUNICIPALITY CANNOT "REQUIRE ALL
WHO WISH TO DISSEMINATE IDEAS TO PRESENT THEM FIRST TO POLICE
AUTHORITIES FOR THEIR CONSIDERATION AND APPROVAL, WITH A DISCRETION IN
THE POLICE TO SAY SOME IDEAS MAY, WHILE OTHERS MAY NOT BE  ...
DISSEMINATED ...  ."  SCHNEIDER V. STATE, SUPRA, AT 164.  SEE LOVELL V.
GRIFFIN, SUPRA; HAGUE V. CIO, SUPRA; LARGENT V. TEXAS, SUPRA; SAIA V.
NEW YORK, SUPRA; NIEMOTKO V. MARYLAND, SUPRA; KUNZ V. NEW YORK, SUPRA. 

THIS COURT HAS RECOGNIZED THAT THE LODGING OF SUCH BROAD DISCRETION
IN A PUBLIC OFFICIAL ALLOWS HIM TO DETERMINE WHICH EXPRESSIONS OF VIEW
WILL BE PERMITTED AND WHICH WILL NOT.  THIS THUS SANCTIONS A DEVICE FOR
THE SUPPRESSION OF THE COMMUNICATION OF IDEAS AND PERMITS THE OFFICIAL
TO ACT AS A CENSOR.  SEE SAIA V. NEW YORK, SUPRA, AT 562.  ALSO
INHERENT IN SUCH A SYSTEM ALLOWING PARADES OR MEETINGS ONLY WITH THE
PRIOR PERMISSION OF AN OFFICIAL IS THE OBVIOUS DANGER TO THE RIGHT OF A
PERSON OR GROUP NOT TO BE DENIED EQUAL PROTECTION OF THE LAWS.  SEE
NIEMOTKO V. MARYLAND, SUPRA, AT 272, 284; CF. YICK WO V. HOPKINS, 118
U.S. 356.  IT IS CLEARLY UNCONSTITUTIONAL TO ENABLE A PUBLIC OFFICIAL
TO DETERMINE WHICH EXPRESSIONS OF VIEW WILL BE PERMITTED AND WHICH WILL
NOT OR TO ENGAGE IN INVIDIOUS DISCRIMINATION AMONG PERSONS OR GROUPS
EITHER BY USE OF A STATUTE PROVIDING A SYSTEM OF BROAD DISCRETIONARY
LICENSING POWER OR, AS IN THIS CASE, THE EQUIVALENT OF SUCH A SYSTEM BY
SELECTIVE ENFORCEMENT OF AN EXTREMELY BROAD PROHIBITORY STATUTE. 

IT IS, OF COURSE, UNDISPUTED THAT APPROPRIATE, LIMITED DISCRETION,
UNDER PROPERLY DRAWN STATUTES OR ORDINANCES, CONCERNING THE TIME,
PLACE, DURATION, OR MANNER OF USE OF THE STREETS FOR PUBLIC ASSEMBLIES
MAY BE VESTED IN ADMINISTRATIVE OFFICIALS, PROVIDED THAT SUCH LIMITED
DISCRETION IS "EXERCISED WITH 'UNIFORMITY OF METHOD OF TREATMENT UPON
THE FACTS OF EACH APPLICATION, FREE FROM IMPROPER OR INAPPROPRIATE
CONSIDERATIONS AND FROM UNFAIR DISCRIMINATION'  ...  (AND WITH) A
'SYSTEMATIC, CONSISTENT AND JUST ORDER OF TREATMENT, WITH REFERENCE TO
THE CONVENIENCE OF PUBLIC USE OF THE HIGHWAYS  ...  .'"  COX V. NEW
HAMPSHIRE, SUPRA, AT 576.  SEE POULOS V. NEW HAMPSHIRE, SUPRA. 

BUT HERE IT IS CLEAR THAT THE PRACTICE IN BATON ROUGE ALLOWING
UNFETTERED DISCRETION IN LOCAL OFFICIALS IN THE REGULATION OF THE USE
OF THE STREETS FOR PEACEFUL PARADES AND MEETINGS IS AN UNWARRANTED
ABRIDGMENT OF APPELLANT'S FREEDOM OF SPEECH AND ASSEMBLY SECURED TO HIM
BY THE FIRST AMENDMENT, AS APPLIED TO THE STATES BY THE FOURTEENTH
AMENDMENT.  IT FOLLOWS, THEREFORE, THAT APPELLANT'S CONVICTION FOR
VIOLATING THE STATUTE AS SO APPLIED AND ENFORCED MUST BE REVERSED. 

FOR THE REASONS DISCUSSED ABOVE THE JUDGMENT OF THE SUPREME COURT OF
LOUISIANA IS REVERSED.  REVERSED. 

FN1  ESTIMATES OF THE CROWD'S SIZE VARIED FROM 1,500 TO 3,800.  TWO
THOUSAND SEEMS TO HAVE BEEN THE CONSENSUS AND WAS THE FIGURE ACCEPTED
BY THE LOUISIANA SUPREME COURT, 244 LA., AT 1095, 156 SO. 2D, AT 451. 

FN2  THERE WERE VARYING VERSIONS IN THE RECORD AS TO THE TIME THE
DEMONSTRATION WOULD TAKE.  THE STATE'S VERSION WAS THAT COX ASKED FOR
SEVEN MINUTES.  COX'S VERSION WAS THAT HE SAID HIS SPEECH WOULD TAKE
SEVEN MINUTES BUT THAT THE WHOLE PROGRAM WOULD TAKE BETWEEN 17 AND 25
MINUTES. 

FN3  THE "PERMISSION" GRANTED THE STUDENTS TO DEMONSTRATE IS
DISCUSSED AT GREATER LENGTH IN NO. 49, WHERE ITS LEGAL EFFECT IS
CONSIDERED. 

FN4  A FEW DAYS BEFORE, COX HAD PARTICIPATED WITH SOME OF THE
DEMONSTRATORS IN A "DIRECT NON-VIOLENT CLINIC" SPONSORED BY CORE AND
HELD AT ST. MARK'S CHURCH. 

FN5  SHERIFF CLEMMONS HAD NO OBJECTION TO THIS PART OF THE SPEECH. 
HE TESTIFIED ON CROSS-EXAMINATION AS FOLLOWS: 

"Q.  DID YOU HAVE ANY OBJECTION TO THAT PART OF HIS TALK? 

"A.  NONE WHATEVER.  IF HE WOULD HAVE DONE WHAT HE SAID, THERE WOULD
HAVE BEEN NO TROUBLE AT ALL.  THE WHOLE THING WOULD HAVE BEEN OVER AND
DONE WITH. 

"Q.  DID YOU HAVE ANY OBJECTION TO THEM BEING ASSEMBLED ON THAT SIDE
OF THE STREET WHILE HE WAS MAKING THAT SPEECH, SIR? 

"A.  I HAD NO OBJECTION TO IT." 

FN6  SHERIFF CLEMMONS OBJECTED STRONGLY TO THESE WORDS.  HE TESTIFIED
ON CROSS-EXAMINATION AS FOLLOWS: 

"Q.  NOW, WHAT PART OF HIS SPEECH BECAME OBJECTIONABLE TO HIM BEING
ASSEMBLED THERE? 

"A.  THE INFLAMMATORY MANNER IN WHICH HE ADDRESSED THAT CROWD AND
TOLD THEM TO GO ON UP TOWN, GO TO FOUR PLACES ON THE PROTEST LIST, SIT
DOWN AND IF THEY DON'T FEED YOU, SIT THERE FOR ONE HOUR." 

FN7  THE EXACT SEQUENCE OF THESE EVENTS IS UNCLEAR FROM THE RECORD,
BEING DESCRIBED DIFFERENTLY NOT ONLY BY THE STATE AND THE DEFENSE, BUT
ALSO BY THE STATE WITNESSES THEMSELVES.  IT SEEMS REASONABLY CERTAIN,
HOWEVER, THAT THE RESPONSE TO THE SINGING FROM THE JAIL, THE END OF
COX'S SPEECH, AND THE "MUTTERING" AND "GRUMBLING" OF THE WHITE
ONLOOKERS ALL TOOK PLACE AT APPROXIMATELY THE SAME TIME. 

FN8  BECAUSE A CLAIM OF CONSTITUTIONALLY PROTECTED RIGHT IS INVOLVED,
IT "REMAINS OUR DUTY IN A CASE SUCH AS THIS TO MAKE AN INDEPENDENT
EXAMINATION OF THE WHOLE RECORD."  EDWARDS V. SOUTH CAROLINA, 372 U.S.
229, 235; BLACKBURN V. ALABAMA, 361 U.S. 199, 205, N.5; PENNEKAMP V.
FLORIDA, 328 U.S. 331, 335; FISKE V. KANSAS, 274 U.S. 380, 385-386.  IN
THE AREA OF FIRST AMENDMENT FREEDOMS AS WELL AS AREAS INVOLVING OTHER
CONSTITUTIONALLY PROTECTED RIGHTS, "WE CANNOT AVOID OUR
RESPONSIBILITIES BY PERMITTING OURSELVES 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.'"  HAYNES V. WASHINGTON, 373 U.S. 503, 515-516; STEIN V.
NEW YORK, 346 U.S. 156, 181. 

FN9  THE CHEERING AND SHOUTING WERE DESCRIBED DIFFERENTLY BY
DIFFERENT WITNESSES, BUT THE MOST EXTRAVAGANT DESCRIPTIONS WERE THE
FOLLOWING:  "A JUMBLED ROAR LIKE PEOPLE CHEERING AT A FOOTBALL GAME,"
"LOUD CHEERING AND SPONTANEOUS CLAPPING AND SCREAMING AND A GREAT
HULLABALOO," "A GREAT OUTBURST," A CHEER OF "CONQUEST  ...  MUCH WILDER
THAN A FOOTBALL GAME," "A LOUD REACTION, NOT DISORDERLY, LOUD," "A
SHOUT, A ROAR," AND AN EMOTIONAL RESPONSE "IN JUBILATION AND
EXHORTATION."  APPELLANT AGREED THAT SOME OF THE GROUP "BECAME
EMOTIONAL" AND "TEARS FLOWED FROM YOUNG LADIES' EYES." 

FN10  THERE IS MUCH TESTIMONY THAT THE DEMONSTRATORS WERE WELL
CONTROLLED AND BASICALLY ORDERLY THROUGHOUT.  G. DUPRE LITTON, AN
ATTORNEY AND WITNESS FOR THE STATE, TESTIFIED, "I WOULD SAY THAT IT WAS
AN ORDERLY DEMONSTRATION.  IT WAS TOO LARGE A GROUP, IN MY OPINION, TO
CONGREGATE AT THAT PLACE AT THAT PARTICULAR TIME, WHICH IS NOTHING BUT
MY OPINION  ...  BUT GENERALLY  ...  IT WAS ORDERLY."  ROBERT DURHAM, A
NEWS PHOTOGRAPHER FOR WBRZ, A STATE WITNESS, TESTIFIED THAT ALTHOUGH
THE DEMONSTRATION WAS NOT "QUIET AND PEACEFUL," IT WAS BASICALLY
"ORDERLY."  JAMES ERWIN, NEWS DIRECTOR OF WIBR, A WITNESS FOR THE
STATE, TESTIFIED AS FOLLOWS: 

"Q.  WAS THE DEMONSTRATION GENERALLY ORDERLY? 

"A.  YES, REVEREND COX HAD IT VERY WELL CONTROLLED." 

ON THE OTHER HAND, THERE IS SOME EVIDENCE TO THE CONTRARY:  ERWIN
ALSO STATED: 

"Q.  WAS IT ORDERLY UP TO THE POINT OF THROWING THE TEAR GAS? 

"A.  NO, THERE WAS ONE MINOR OUTBURST AFTER HE CALLED FOR THE SIT-INS,
AND THEN A MINOR REACTION, AND THEN A LOUD REACTION, NOT DISORDERLY,
LOUD  ...  .  A LOUD REACTION WHEN THE SINGING OCCURRED UPSTAIRS." 

AND JAMES DUMIGAN, A POLICE OFFICER, THOUGHT THAT THE DEMONSTRATORS
SHOWED A CERTAIN DISORDER BY "HOLLERING LOUD, CLAPPING THEIR HANDS." 
BUT THIS LATTER EVIDENCE IS SURELY NOT SUFFICIENT, PARTICULARLY IN FACE
OF THE FILM, TO LEAD US TO CONCLUDE THAT THE CHEERING WAS SO DISORDERLY
AS TO BE BEYOND THAT HELD CONSTITUTIONALLY PROTECTED IN EDWARDS V.
SOUTH CAROLINA, SUPRA. 

FN11  MOREOVER, THERE ARE NOT SIGNIFICANTLY MORE DEMONSTRATORS HERE
THAN IN FIELDS V. SOUTH CAROLINA, SUPRA, WHICH INVOLVED MORE THAN 1,000
STUDENTS. 

FN12  WITNESSES WHO CONCLUDED THAT A BREACH OF THE PEACE WAS
THREATENED OR HAD OCCURRED BASED THEIR CONCLUSIONS, NOT UPON THE
SHOUTING OR CHEERING, BUT UPON THE FACT THAT THE GROUP WAS
DEMONSTRATING AT ALL, UPON COX'S SUGGESTION THAT THE GROUP SIT IN, OR
UPON THE REACTION OF THE WHITE ONLOOKERS ACROSS THE STREET.  RUSH
BIOSSAT, A STATE WITNESS, TESTIFIED THAT WHILE APPELLANT "DIDN'T SAY
ANYTHING OF A VIOLENT NATURE," THERE WAS "EMOTIONAL UPSET," "A FEELING
OF DISTURBANCE IN THE AIR," AND "AGITATION"; HE THOUGHT, HOWEVER, THAT
ALL THIS WAS CAUSED BY COX'S REMARKS ABOUT "BLACK AND WHITE TOGETHER." 
JAMES ERWIN, A STATE WITNESS, AND NEWS DIRECTOR OF WIBR, TESTIFIED THAT
THERE WAS "CONSIDERABLE STIRRING" AND A "RESTIVENESS," BUT AMONG THE
WHITE GROUP.  HE ALSO STATED THAT THE REACTION OF THE WHITE GROUP TO
COX'S SPEECH "WAS ELECTRIFYING."  "YOU COULD HEAR GRUMBLING FROM THE
SMALL GROUPS OF WHITE PEOPLE, SOME TOTAL OF TWO HUNDRED FIFTY, PERHAPS
... AND THERE WAS A DEFINITE FEELING OF ILL WILL THAT HAD SPRUNG UP." 
HE WAS AFRAID THAT "VIOLENCE WAS ABOUT TO ERUPT" BUT ALSO THOUGHT THAT
COX HAD HIS GROUP UNDER CONTROL AND DID NOT WANT VIOLENCE.  G.L.
JOHNSTON, A POLICE OFFICER AND A WITNESS FOR THE STATE, FELT THAT THE
DISORDERLY PART OF THE DEMONSTRATION WAS COX'S SUGGESTION THAT THE
GROUP SIT IN.  VAY CARPENTER, AND MARY O'BRIEN, LEGAL SECRETARIES AND
WITNESSES FOR THE STATE, THOUGHT THAT THE MOOD OF THE CROWD CHANGED AT
THE TIME OF COX'S SPEECH AND BECAME "TENSE."  THEY THOUGHT THIS WAS
BECAUSE OF THE SIT-IN SUGGESTION.  CHIEF KLING OF THE SHERIFF'S OFFICE,
TESTIFYING FOR THE STATE, SAID THAT THE SITUATION BECAME ONE "THAT WAS
EXPLOSIVE AND ONE THAT HAD GOTTEN TO THE POINT WHERE IT HAD TO BE
HANDLED OR IT WOULD HAVE GOTTEN OUT OF HAND"; HOWEVER, HE BASED HIS
OPINION UPON "THE MERE PRESENCE OF THESE PEOPLE IN DOWNTOWN BATON ROUGE
...  IN SUCH GREAT NUMBERS."  POLICE CAPTAIN FONT ALSO TESTIFIED FOR
THE STATE THAT THE SITUATION WAS "EXPLOSIVE"; HE BASED THIS OPINION ON
"HOW THEY CAME, SUCH A LARGE GROUP LIKE THAT, JUST COMING OUT OF
NOWHERE, JUST COMING, FILLING THE STREETS, FILLING THE SIDEWALKS.  WE
ARE PREPARED - WE HAVE TRAFFIC OFFICERS.  WE CAN HANDLE TRAFFIC
SITUATIONS IF WE ARE ADVISED THAT WE ARE GOING TO HAVE A TRAFFIC
SITUATION, IF THE SIDEWALK IS GOING TO BE BLOCKED, IF THE STREET IS
GOING TO BE BLOCKED, BUT WE WASN'T ADVISED OF IT.  THEY JUST CAME AND
BLOCKED IT."  HE ADDED THAT HE FEARED "BLOODSHED," BUT BASED THIS FEAR
UPON "WHEN THE SHERIFF REQUESTED THEM TO MOVE, THEY DIDN'T MOVE; WHEN
THEY CHEERED IN A CONQUEST TYPE OF TONE; THEIR DISPLAYING OF THE SIGNS;
THE DELIBERATE AGITATION THAT TWENTY-FIVE PEOPLE HAD BEEN ARRESTED THE
DAY BEFORE, AND THEN THEY TURNED RIGHT AROUND AND JUST AGITATED THE
NEXT DAY IN THE SAME PRESCRIBED MANNER."  HE ALSO FELT THAT THE
STUDENTS DISPLAYED THEIR SIGNS IN A WAY WHICH WAS "AGITATING." 
INSPECTOR TRIGG TESTIFIED FOR THE STATE THAT "FROM THEIR ACTIONS, I
FIGURED THEY WERE GOING TO TRY TO STORM THE COURTHOUSE AND TAKE OVER
THE JAIL AND TRY TO GET THE PRISONERS THAT THEY HAD COME DOWN HERE TO
PROTEST."  HOWEVER, TRIGG BASED HIS CONCLUSIONS UPON THE STUDENTS
HAVING MARCHED DOWN FROM THE CAPITOL AND PARADED IN FRONT OF THE
COURTHOUSE; HE THOUGHT THEY WERE "VIOLENT" BECAUSE "THEY CONTINUED TO
MARCH AROUND THIS COURTHOUSE, AND THEY CONTINUED TO MARCH DOWN HERE AND
DO THINGS THAT DISRUPTS OUR WAY OF LIVING DOWN HERE."  SHERIFF CLEMMONS
TESTIFIED THAT THE ASSEMBLY "BECAME OBJECTIONABLE" AT THE TIME OF COX'S
SPEECH.  THE SHERIFF OBJECTED TO "THE INFLAMMATORY MANNER IN WHICH HE
ADDRESSED THAT CROWD AND TOLD THEM TO GO ON UP TOWN, GO TO FOUR PLACES
ON THE PROTEST LIST, SIT DOWN AND IF THEY DON'T FEED YOU, SIT THERE FOR
ONE HOUR.  PRIOR TO THAT, THOUGH, OUT FROM UNDER THESE COATS, SOME
SIGNS OF - PICKETING SIGNS.  I DON'T KNOW WHAT'S COMING OUT OF THERE
NEXT.  IT COULD BE ANYTHING UNDER A COAT.  IT BECAME INFLAMMATORY, AND
WHEN HE GESTURED, GO ON UP TOWN AND TAKE CHARGE OF THESE PLACES  ...
OF BUSINESS.  THAT IS WHAT THEY WERE TRYING TO DO IS TAKE CHARGE OF
THIS COURTHOUSE." 

A CLOSE READING OF THE RECORD SEEMS TO REVEAL NEXT TO NO EVIDENCE
THAT ANYONE THOUGHT THAT THE SHOUTING AND CHEERING WERE WHAT
CONSTITUTED THE THREATENED BREACH OF THE PEACE.    FN13  IT HAS BEEN
ARGUED THAT, IN THE EXERCISE OF ITS REGULATORY POWER OVER STREETS AND
OTHER PUBLIC FACILITIES, A STATE OR MUNICIPALITY COULD RESERVE THE
STREETS COMPLETELY FOR TRAFFIC AND OTHER FACILITIES FOR REST AND
RELAXATION OF THE CITIZENRY.  SEE KOVACS V. COOPER, SUPRA, AT 98
(OPINION OF MR. JUSTICE JACKSON); KUNZ V. NEW YORK, SUPRA, AT 298 (MR.
JUSTICE JACKSON, DISSENTING).   THE CONTRARY, HOWEVER, HAS BEEN
INDICATED, AT LEAST TO THE POINT THAT SOME OPEN AREA MUST BE PRESERVED
FOR OUTDOOR ASSEMBLIES.  SEE HAGUE V. CIO, SUPRA, AT 515-516 (OPINION
OF MR. JUSTICE ROBERTS); KUNZ V. NEW YORK, SUPRA, AT 293; NIEMOTKO V.
MARYLAND, SUPRA, AT 283 (MR. JUSTICE FRANKFURTER, CONCURRING).  SEE
GENERALLY, POULOS V. NEW HAMPSHIRE, SUPRA, AT 403; NIEMOTKO V.
MARYLAND, SUPRA, AT 272-273. 

FN14  WITH THE EXPRESS EXCEPTION, OF COURSE, OF LABOR PICKETING. 
THIS EXCEPTION POINTS UP THE FACT THAT THE STATUTE REACHES BEYOND MERE
TRAFFIC REGULATION TO RESTRICTIONS ON EXPRESSION. 

FN15  ALTHOUGH CITED BY NEITHER PARTY, RESEARCH HAS DISCLOSED THE
EXISTENCE OF A LOCAL ORDINANCE OF BATON ROUGE, BATON ROUGE CITY CODE,
TIT. 11, SEC. 210 (1957), WHICH PROHIBITS "PARADES  ... ALONG ANY
STREET EXCEPT IN ACCORDANCE WITH A PERMIT ISSUED BY THE CHIEF OF POLICE
...  ."  A SIMILAR ORDINANCE WAS IN EXSITENCE IN FIELDS V. SOUTH
CAROLINA, SUPRA.  AS IN FIELDS, THIS ORDINANCE IS IRREVELANT TO THE
CONVICTION IN THIS CASE AS NOT ONLY WAS APPELLANT NOT CHARGED WITH ITS
VIOLATION BUT THE EXISTENCE OF THE ORDINANCE WAS NEVER REFERRED TO BY
THE STATE IN ANY OF THE COURTS INVOLVED IN THE CASE, INCLUDING THIS
ONE, AND NEITHER THE LOUISIANA TRIAL COURT NOR THE SUPREME COURT RELIED
ON THE ORDINANCE IN SUSTAINING APPELLANT'S CONVICTIONS UNDER THE THREE
STATUTES HERE INVOLVED.  MOREOVER, SINCE THE ORDINANCE APPARENTLY SETS
FORTH NO STANDARDS FOR THE DETERMINATION OF THE CHIEF OF POLICE AS TO
WHICH PARADES TO PERMIT OR WHICH TO PROHIBIT, OBVIOUS CONSTITUTIONAL
PROBLEMS WOULD ARISE IF APPELLANT HAD BEEN CONVICTED FOR PARADING IN
VIOLATION OF IT.  SEE THE DISCUSSION IN TEXT ABOVE; LOVELL V. GRIFFIN,
SUPRA, AT 452-453; HAGUE V. CIO, SUPRA, AT 518; SAIA V. NEW YORK,
SUPRA, AT 559-560. 

FOR CONCURRING OPINION OF MR. JUSTICE BLACK, SEE POST, P. 575. 

FOR CONCURRING OPINION OF MR. JUSTICE CLARK, SEE POST, P. 585. 

FOR OPINION OF MR. JUSTICE WHITE, CONCURRING IN PART AND DISSENTING
IN PART, SEE POST, P. 591. 
..END :




COX V. LOUISIANA 379 U.S. 559 


NO. 49.  ARGUED OCTOBER 21-22, 1964 - DECIDED JANUARY 18, 1965 - 245 LA.
303, 158 SO. 2D 172, REVERSED. 


APPELLANT WAS CONVICTED OF VIOLATING A LOUISIANA STATUTE PROHIBITING
PICKETING "NEAR" A COURTHOUSE WITH THE INTENT TO OBSTRUCT JUSTICE, THE
CHARGE BEING BASED ON THE FACTS SET FORTH IN NO. 24, ANTE, AT 536; AND
THE CONVICTION WAS UPHELD BY THE LOUISIANA SUPREME COURT.  HELD: 

1.  THE STATUTE IS NARROWLY DRAWN, FURTHERS THE STATE'S LEGITIMATE
INTEREST OF PROTECTING ITS JUDICIAL SYSTEM FROM PRESSURES WHICH
PICKETING NEAR A COURTHOUSE MIGHT CREATE, IS A VALID REGULATION OF
CONDUCT AS DISTINGUISHED FROM PURE SPEECH, AND DOES NOT INFRINGE RIGHTS
OF FREE SPEECH AND ASSEMBLY.  PP. 562-564. 

2.  EVEN ASSUMING THE APPLICABILITY OF A "CLEAR AND PRESENT DANGER"
TEST, THERE IS NO CONSTITUTIONAL OBJECTION TO APPLYING THE STATUTE TO
CONDUCT OF THE SORT ENGAGED IN BY THE DEMONSTRATORS.  PP. 565-566. 

3.  THE EVIDENCE OF INTENT TO OBSTRUCT JUSTICE OR INFLUENCE ANY
JUDICIAL OFFICIAL REQUIRED BY THE STATUTE WAS CONSTITUTIONALLY
SUFFICIENT.  PP. 566-567. 

4.  APPELLANT WAS IN EFFECT ADVISED BY THE CITY'S HIGHEST POLICE
OFFICIALS THAT A DEMONSTRATION AT THE PLACE WHERE IT WAS HELD WAS NOT
"NEAR" THE COURTHOUSE, AND TO PERMIT HIM TO BE CONVICTED FOR EXERCISING
THE PRIVILEGE THEY TOLD HIM WAS AVAILABLE WOULD BE TO ALLOW A TYPE OF
ENTRAPMENT VIOLATIVE OF THE DUE PROCESS CLAUSE.  RALEY V. OHIO, 360
U.S. 423, FOLLOWED.  PP. 569-571. 

5.  THE DISPERSAL ORDER DID NOT LIMIT THE TIME OR PLACE OF THE
DEMONSTRATION AND REMOVE THE PROTECTION ACCORDED APPELLANT BY THE
ORIGINAL GRANT OF PERMISSION BUT WAS BASED ON THE OFFICIALS' ERRONEOUS
CONCLUSION THAT APPELLANT'S REMARKS CONSTITUTED A BREACH OF THE PEACE. 
PP. 572-573. 

COX V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

APPELLANT WAS CONVICTED OF VIOLATING A LOUISIANA STATUTE WHICH
PROVIDES: 

"WHOEVER, WITH THE INTENT OF INTERFERING WITH, OBSTRUCTING, OR
IMPEDING THE ADMINISTRATION OF JUSTICE, OR WITH THE INTENT OF
INFLUENCING ANY JUDGE, JUROR, WITNESS, OR COURT OFFICER, IN THE
DISCHARGE OF HIS DUTY PICKETS OR PARADES IN OR NEAR A BUILDING HOUSING
A COURT OF THE STATE OF LOUISIANA  ...  SHALL BE FINED NOT MORE THAN
FIVE THOUSAND DOLLARS OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 
LA. REV. STAT. SEC. 14:401 (CUM. SUPP. 1962). 

THIS CHARGE WAS BASED UPON THE SAME SET OF FACTS AS THE "DISTURBING
THE PEACE" AND "OBSTRUCTING A PUBLIC PASSAGE" CHARGES INVOLVED AND SET
FORTH IN NO. 24, ANTE, AND WAS TRIED ALONG WITH THOSE OFFENSES. 
APPELLANT WAS CONVICTED ON THIS CHARGE ALSO AND WAS SENTENCED TO THE
MAXIMUM PENALTY UNDER THE STATUTE OF ONE YEAR IN JAIL AND A $5,000
FINE, WHICH PENALTY WAS CUMULATIVE WITH THOSE IN NO. 24.  THESE
CONVICTIONS WERE AFFIRMED BY THE LOUISIANA SUPREME COURT, 245, LA. 303,
158 SO. 2D 172.  APPELLANT APPEALED TO THIS COURT CONTENDING THAT THE
STATUTE WAS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED TO HIM.  WE
NOTED PROBABLE JURISDICTION, 377 U.S. 921. 

                                        I. 

WE SHALL FIRST CONSIDER APPELLANT'S CONTENTION THAT THIS STATUTE MUST
BE DECLARED INVALID ON ITS FACE AS AN UNJUSTIFIED RESTRICTION UPON
FREEDOMS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION. 

THIS STATUTE WAS PASSED BY LOUISIANA IN 1950 AND WAS MODELED AFTER A
BILL PERTAINING TO THE FEDERAL JUDICIARY, WHICH CONGRESS ENACTED LATER
IN 1950, 64 STAT. 1018, 18 U.S.C.  SEC. 1507 (1958 ED.).  SINCE THAT
TIME, MASSACHUSETTS AND PENNSYLVANIA HAVE PASSED SIMILAR STATUTES. 
MASS. ANN. LAWS, C. 268, SEC. 13A; PURDON'S PA. STAT. ANN., TIT. 18,
SEC. 4327.  THE FEDERAL STATUTE RESULTED FROM THE PICKETING OF FEDERAL
COURTHOUSES BY PARTISANS OF THE DEFENDANTS DURING TRIALS INVOLVING
LEADERS OF THE COMMUNIST PARTY.  THIS PICKETING PROMPTED AN ADVERSE
REACTION FROM BOTH THE BAR AND THE GENERAL PUBLIC.  A NUMBER OF GROUPS
URGED LEGISLATION TO PROHIBIT IT.  AT A SPECIAL MEETING HELD IN MARCH
1949, THE JUDICIAL CONFERENCE OF THE UNITED STATES PASSED THE FOLLOWING
RESOLUTION: "RESOLVED, THAT WE CONDEMN THE PRACTICE OF PICKETING THE
COURTS, AND BELIEVE THAT EFFECTIVE MEANS SHOULD BE TAKEN TO PREVENT
IT."  REPORT OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, 203
(1949).   A SPECIAL COMMITTEE ON PROPOSED LEGISLATION TO PROHIBIT
PICKETING OF THE COURTS WAS APPOINTED TO MAKE RECOMMENDATIONS TO THE
CONFERENCE ON THIS SUBJECT.  IBID.  IN ITS REPORT TO THE JUDICIAL
CONFERENCE, DATED SEPTEMBER 23, 1949, AT P. 3, THE SPECIAL COMMITTEE
STATED:  "THE SENTIMENT OF BAR ASSOCIATIONS AND INDIVIDUAL LAWYERS HAS
BEEN AND IS PRACTICALLY UNANIMOUS IN FAVOR OF LEGISLATION TO PROHIBIT
PICKETING OF COURTS."  UPON THE RECOMMENDATION OF THIS SPECIAL
COMMITTEE, THE JUDICIAL CONFERENCE URGED THE PROMPT ENACTMENT OF THE
THEN-PENDING BILL.  REPORT OF THE JUDICIAL CONFERENCE OF THE UNITED
STATES, 17-18 (1949).  SIMILAR RECOMMENDATIONS WERE MADE BY THE
AMERICAN BAR ASSOCIATION, NUMEROUS STATE AND LOCAL BAR ASSOCIATIONS,
AND INDIVIDUAL LAWYERS AND JUDGES.  SEE JOINT HEARINGS BEFORE THE
SUBCOMMITTEES OF THE COMMITTEES ON THE JUDICIARY ON S. 1681, AND H.R.
3766, 81ST CONG., 1ST SESS.; H.R. REP.  NO. 1281, 81ST CONG., 1ST
SESS.; S. REP. NO. 732, 81ST CONG., 1ST SESS.; BILLS CONDEMNING
PICKETING OF COURTS BEFORE CONGRESS, 33 J. AM. JUD.  SOC.  53 (1949). 

THIS STATUTE, UNLIKE THE TWO PREVIOUSLY CONSIDERED, IS A PRECISE,
NARROWLY DRAWN REGULATORY STATUTE WHICH PROSCRIBES CERTAIN SPECIFIC
BEHAVIOR.  CF. EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 236.  IT
PROHIBITS A PARTICULAR TYPE OF CONDUCT, NAMELY, PICKETING AND PARADING,
IN A FEW SPECIFIED LOCATIONS, IN OR NEAR COURTHOUSES. 

THERE CAN BE NO QUESTION THAT A STATE HAS A LEGITIMATE INTEREST IN
PROTECTING ITS JUDICIAL SYSTEM FROM THE PRESSURES WHICH PICKETING NEAR
A COURTHOUSE MIGHT CREATE.  SINCE WE ARE COMMITTED TO A GOVERNMENT OF
LAWS AND NOT OF MEN, IT IS OF THE UTMOST IMPORTANCE THAT THE
ADMINISTRATION OF JUSTICE BE ABSOLUTELY FAIR AND ORDERLY.  THIS COURT
HAS RECOGNIZED THAT THE UNHINDERED AND UNTRAMMELED FUNCTIONING OF OUR
COURTS IS PART OF THE VERY FOUNDATION OF OUR CONSTITUTIONAL DEMOCRACY. 
SEE WOOD V. GEORGIA, 370 U.S. 375, 383.  THE CONSTITUTIONAL SAFEGUARDS
RELATING TO THE INTEGRITY OF THE CRIMINAL PROCESS ATTEND EVERY STAGE OF
A CRIMINAL PROCEEDING, STARTING WITH ARREST AND CULMINATING WITH A
TRIAL "IN A COURTROOM PRESIDED OVER BY A JUDGE."  RIDEAU V. LOUISIANA,
373 U.S. 723, 727.  THERE CAN BE NO DOUBT THAT THEY EMBRACE THE
FUNDAMENTAL CONCEPTION OF A FAIR TRIAL, AND THAT THEY EXCLUDE INFLUENCE
OR DOMINATION BY EITHER A HOSTILE OR FRIENDLY MOB.  THERE IS NO ROOM AT
ANY STAGE OF JUDICIAL PROCEEDINGS FOR SUCH INTERVENTION; MOB LAW IS THE
VERY ANTITHESIS OF DUE PROCESS.  SEE FRANK V. MANGUM, 237 U.S. 309, 347
(HOLMES, J., DISSENTING).  A STATE MAY ADOPT SAFEGUARDS NECESSARY AND
APPROPRIATE TO ASSURE THAT THE ADMINISTRATION OF JUSTICE AT ALL STAGES
IS FREE FROM OUTSIDE CONTROL AND INFLUENCE.  A NARROWLY DRAWN STATUTE
SUCH AS THE ONE UNDER REVIEW IS OBVIOUSLY A SAFEGUARD BOTH NECESSARY
AND APPROPRIATE TO VINDICATE THE STATE'S INTEREST IN ASSURING JUSTICE
UNDER LAW. 

NOR DOES SUCH A STATUTE INFRINGE UPON THE CONSTITUTIONALLY PROTECTED
RIGHTS OF FREE SPEECH AND FREE ASSEMBLY.  THE CONDUCT WHICH IS THE
SUBJECT OF THIS STATUTE - PICKETING AND PARADING - IS SUBJECT TO
REGULATION EVEN THOUGH INTERTWINED WITH EXPRESSION AND ASSOCIATION. 
THE EXAMPLES ARE MANY OF THE APPLICATION BY THIS COURT OF THE PRINCIPLE
THAT CERTAIN FORMS OF CONDUCT MIXED WITH SPEECH MAY BE REGULATED OR
PROHIBITED.  THE MOST CLASSIC OF THESE WAS POINTED OUT LONG AGO BY MR.
JUSTICE HOLMES:  "THE MOST STRINGENT PROTECTION OF FREE SPEECH WOULD
NOT PROTECT A MAN IN FALSELY SHOUTING FIRE IN A THEATRE AND CAUSING A
PANIC."  SCHENCK V. UNITED STATES, 249 U.S. 47, 52.  A MAN MAY BE
PUNISHED FOR ENCOURAGING THE COMMISSION OF A CRIME, FOX V. WASHINGTON,
236 U.S. 273, OR FOR UTTERING "FIGHTING WORDS," CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568.  THIS PRINCIPLE HAS BEEN APPLIED TO PICKETING
AND PARADING IN LABOR DISPUTES.  SEE HUGHES V. SUPERIOR COURT, 339 U.S.
460; GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490; BUILDING
SERVICE EMPLOYEES V. GAZZAM, 339 U.S. 532.  BUT CF. THORNHILL V.
ALABAMA, 310 U.S. 88.  THESE AUTHORITIES MAKE IT CLEAR, AS THE COURT
SAID IN GIBONEY, THAT "IT HAS NEVER BEEN DEEMED AN ABRIDGMENT OF
FREEDOM OF SPEECH OR PRESS TO MAKE A COURSE OF CONDUCT ILLEGAL MERELY
BECAUSE THE CONDUCT WAS IN PART INITIATED, EVIDENCED, OR CARRIED OUT BY
MEANS OF LANGUAGE, EITHER SPOKEN, WRITTEN, OR PRINTED."  GIBONEY V.
EMPIRE STORAGE & ICE CO., SUPRA, AT 502. 

BRIDGES V. CALIFORNIA, 314 U.S. 252, AND PENNEKAMP V. FLORIDA, 328
U.S. 331, DO NOT HOLD TO THE CONTRARY.  BOTH THESE CASES DEALT WITH THE
POWER OF A JUDGE TO SENTENCE FOR CONTEMPT PERSONS WHO PUBLISHED OR
CAUSED TO BE PUBLISHED WRITINGS COMMENTING ON JUDICIAL PROCEEDINGS. 
THEY INVOLVED NEWSPAPER EDITORIALS, AN EDITORIAL CARTOON, AND A
TELEGRAM SENT BY A LABOR LEADER TO THE SECRETARY OF LABOR.  HERE WE
DEAL NOT WITH THE CONTEMPT POWER - A POWER WHICH IS "BASED ON A COMMON
LAW CONCEPT OF THE MOST GENERAL AND UNDEFINED NATURE."  BRIDGES V.
CALIFORNIA, SUPRA, AT 260.  RATHER, WE ARE REVIEWING A STATUTE NARROWLY
DRAWN TO PUNISH SPECIFIC CONDUCT THAT INFRINGES A SUBSTANTIAL STATE
INTEREST IN PROTECTING THE JUDICIAL PROCESS.  SEE CANTWELL V.
CONNECTICUT, 310 U.S. 296, 307-308; GIBONEY V. EMPIRE STORAGE & ICE
CO., SUPRA.  WE ARE NOT CONCERNED HERE WITH SUCH A PURE FORM OF
EXPRESSION AS NEWSPAPER COMMENT OR A TELEGRAM BY A CITIZEN TO A PUBLIC
OFFICIAL.  WE DEAL IN THIS CASE NOT WITH FREE SPEECH ALONE, BUT WITH
EXPRESSION MIXED WITH PARTICULAR CONDUCT.  IN GIBONEY, THIS COURT
EXPRESSLY RECOGNIZED THIS DISTINCTION WHEN IT SAID, "IN HOLDING THIS,
WE ARE MINDFUL OF THE ESSENTIAL IMPORTANCE TO OUR SOCIETY OF A VIGILANT
PROTECTION OF FREEDOM OF SPEECH AND PRESS.  BRIDGES V. CALIFORNIA, 314
U.S. 252, 263.  STATES CANNOT CONSISTENTLY WITH OUR CONSTITUTION
ABRIDGE THOSE FREEDOMS TO OBVIATE SLIGHT INCONVENIENCES OR ANNOYANCES. 
SCHNEIDER V. STATE, 308 U.S. 147, 162.  BUT PLACARDS USED AS AN
ESSENTIAL AND INSEPARABLE PART OF A GRAVE OFFENSE AGAINST AN IMPORTANT
PUBLIC LAW CANNOT IMMUNIZE THAT UNLAWFUL CONDUCT FROM STATE CONTROL." 
336 U.S., AT 501-502. 

WE HOLD THAT THIS STATUTE ON ITS FACE IS A VALID LAW DEALING WITH
CONDUCT SUBJECT TO REGULATION SO AS TO VINDICATE IMPORTANT INTERESTS OF
SOCIETY AND THAT THE FACT THAT FREE SPEECH IS INTERMINGLED WITH SUCH
CONDUCT DOES NOT BRING WITH IT CONSTITUTIONAL PROTECTION. 

                                            II. 

WE NOW DEAL WITH THE LOUISIANA STATUTE AS APPLIED TO THE CONDUCT IN
THIS CASE.  THE GROUP OF 2,000, LED BY APPELLANT, PARADED AND
DEMONSTRATED BEFORE THE COURTHOUSE.  JUDGES AND COURT OFFICERS WERE IN
ATTENDANCE TO DISCHARGE THEIR RESPECTIVE FUNCTIONS.  IT IS UNDISPUTED
THAT A MAJOR PURPOSE OF THE DEMONSTRATION WAS TO PROTEST WHAT THE
DEMONSTRATORS CONSIDERED AN "ILLEGAL" ARREST OF 23 STUDENTS THE
PREVIOUS DAY.  WHILE THE STUDENTS HAD NOT BEEN ARRAIGNED OR THEIR TRIAL
SET FOR ANY DAY CERTAIN, THEY WERE CHARGED WITH VIOLATION OF THE LAW,
AND THE JUDGES RESPONSIBLE FOR TRYING THEM AND PASSING UPON THE
LEGALITY OF THEIR ARREST WERE THEN IN THE BUILDING. 

IT IS, OF COURSE, TRUE THAT MOST JUDGES WILL BE INFLUENCED ONLY BY
WHAT THEY SEE AND HEAR IN COURT.  HOWEVER, JUDGES ARE HUMAN; AND THE
LEGISLATURE HAS THE RIGHT TO RECOGNIZE THE DANGER THAT SOME JUDGES,
JURORS, AND OTHER COURT OFFICIALS, WILL BE CONSCIOUSLY OR UNCONSCIOUSLY
INFLUENCED BY DEMONSTRATIONS IN OR NEAR THEIR COURTROOMS BOTH PRIOR TO
AND AT THE TIME OF THE TRIAL.  A STATE MAY ALSO PROPERLY PROTECT THE
JUDICIAL PROCESS FROM BEING MISJUDGED IN THE MINDS OF THE PUBLIC. 
SUPPOSE DEMONSTRATORS PARADED AND PICKETED FOR WEEKS WITH SIGNS ASKING
THAT INDICTMENTS BE DISMISSED, AND THAT A JUDGE, COMPLETELY
UNINFLUENCED BY THESE DEMONSTRATIONS, DISMISSED THE INDICTMENTS.  A
STATE MAY PROTECT AGAINST THE POSSIBILITY OF A CONCLUSION BY THE PUBLIC
UNDER THESE CIRCUMSTANCES THAT THE JUDGE'S ACTION WAS IN PART A PRODUCT
OF INTIMIDATION AND DID NOT FLOW ONLY FROM THE FAIR AND ORDERLY WORKING
OF THE JUDICIAL PROCESS.  SEE S. REP. NO. 732, 81ST CONG., 1ST SESS.,
4. 

APPELLANT INVOKES THE CLEAR AND PRESENT DANGER DOCTRINE IN SUPPORT OF
HIS ARGUMENT THAT THE STATUTE CANNOT CONSTITUTIONALLY BE APPLIED TO THE
CONDUCT INVOLVED HERE.  HE SAYS, RELYING UPON PENNEKAMP AND BRIDGES,
THAT "NO REASON EXISTS TO APPLY A DIFFERENT STANDARD TO THE CASE OF A
CRIMINAL PENALTY FOR A PEACEFUL DEMONSTRATION IN FRONT OF A COURTHOUSE
THAN THE STANDARD OF CLEAR AND PRESENT DANGER APPLIED IN THE CONTEMPT
CASES."  (APPELLANT'S BR., P. 22.)  HE DEFINES THE STANDARD TO BE
APPLIED TO BOTH SITUATIONS TO BE WHETHER THE EXPRESSION OF OPINION
PRESENTS A CLEAR AND PRESENT DANGER TO THE ADMINISTRATION OF JUSTICE. 

WE HAVE ALREADY POINTED OUT THE IMPORTANT DIFFERENCES BETWEEN THE
CONTEMPT CASES AND THE PRESENT ONE, SUPRA, AT 563-564.  HERE WE DEAL
NOT WITH THE CONTEMPT POWER BUT WITH A NARROWLY DRAFTED STATUTE AND NOT
WITH SPEECH IN ITS PRISTINE FORM BUT WITH CONDUCT OF A TOTALLY
DIFFERENT CHARACTER.  EVEN ASSUMING THE APPLICABILITY OF A GENERAL
CLEAR AND PRESENT DANGER TEST, IT IS ONE THING TO CONCLUDE THAT THE
MERE PUBLICATION OF A NEWSPAPER EDITORIAL OR A TELEGRAM TO A SECRETARY
OF LABOR, HOWEVER CRITICAL OF A COURT, PRESENTS NO CLEAR AND PRESENT
DANGER TO THE ADMINISTRATION OF JUSTICE AND QUITE ANOTHER THING TO
CONCLUDE THAT CROWDS, SUCH AS THIS, DEMONSTRATING BEFORE A COURTHOUSE
MAY NOT BE PROHIBITED BY A LEGISLATIVE DETERMINATION BASED ON
EXPERIENCE THAT SUCH CONDUCT INHERENTLY THREATENS THE JUDICIAL
PROCESS.  WE THEREFORE REJECT THE CLEAR AND PRESENT DANGER ARGUMENT OF
APPELLANT. 

                                            III. 

APPELLANT ADDITIONALLY ARGUES THAT HIS CONVICTION VIOLATED DUE PROCESS
AS THERE WAS NO EVIDENCE OF INTENT TO OBSTRUCT JUSTICE OR INFLUENCE ANY
JUDICIAL OFFICIAL AS REQUIRED BY THE STATUTE.  THOMPSON V. LOUISVILLE,
362 U.S. 199.  WE CANNOT AGREE THAT THERE WAS NO EVIDENCE WITHIN THE
"DUE PROCESS" RULE ENUNCIATED IN THOMPSON V. LOUISVILLE.  WE HAVE
ALREADY NOTED THAT VARIOUS WITNESSES AND COX HIMSELF STATED THAT A
MAJOR PURPOSE OF THE DEMONSTRATION WAS TO PROTEST WHAT WAS CONSIDERED
TO BE AN ILLEGAL ARREST OF 23 STUDENTS.  THUS, THE VERY SUBJECT MATTER
OF THE DEMONSTRATION WAS AN ARREST WHICH IS NORMALLY THE FIRST STEP IN
A SERIES OF LEGAL PROCEEDINGS.  THE DEMONSTRATION WAS HELD IN THE
VICINITY OF THE COURTHOUSE WHERE THE STUDENT'S TRIALS WOULD TAKE
PLACE.  THE COURTHOUSE CONTAINED THE JUDGES WHO IN NORMAL COURSE WOULD
BE CALLED UPON TO TRY THE STUDENTS' CASES JUST AS THEY TRIED
APPELLANT.  RONNIE MOORE, THE STUDENT LEADER OF THE DEMONSTRATION, A
DEFENSE WITNESS, STATED, AS WE UNDERSTAND HIS TESTIMONY, THAT THE
DEMONSTRATION WAS IN PART TO PROTEST INJUSTICE; HE FELT IT WAS A FORM
OF "MORAL PERSUASION" AND HOPED IT WOULD HAVE ITS EFFECTS.  THE FACT
THAT THE STUDENTS WERE NOT THEN ON TRIAL AND HAD NOT BEEN ARRAIGNED IS
NOT CONTROLLING IN THE FACE OF THIS AFFIRMATIVE EVIDENCE MANIFESTING
THE PLAIN INTENT OF THE DEMONSTRATORS TO CONDEMN THE ARREST AND ENSUING
JUDICIAL PROCEEDINGS AGAINST THE PRISONERS AS UNFAIR AND UNWARRANTED. 
THE FACT THAT BY THEIR LIGHTS APPELLANT AND THE 2,000 STUDENTS WERE
SEEKING JUSTICE AND NOT ITS OBSTRUCTION IS AS IRRELEVANT AS WOULD BE
THE MOTIVES OF THE MOB CONDEMNED BY JUSTICE HOLMES IN FRANK V. MANGUM,
SUPRA.  LOUISIANA, AS WE HAVE POINTED OUT SUPRA, HAS THE RIGHT TO
CONSTRUE ITS STATUTE TO PREVENT PARADING AND PICKETING FROM UNDULY
INFLUENCING THE ADMINISTRATION OF JUSTICE AT ANY POINT OR TIME IN ITS
PROCESS, REGARDLESS OF WHETHER THE MOTIVES OF THE DEMONSTRATORS ARE
GOOD OR BAD. 

WHILE THIS CASE CONTAINS DIRECT EVIDENCE TAKING IT OUT OF THE
THOMPSON V. LOUISVILLE DOCTRINE, EVEN WITHOUT THIS EVIDENCE, WE WOULD
BE COMPELLED TO REJECT THE CONTENTION THAT THERE WAS NO PROOF OF
INTENT.  LOUISIANA SURELY HAS THE RIGHT TO INFER THE APPROPRIATE INTENT
FROM CIRCUMSTANTIAL EVIDENCE.  AT THE VERY LEAST, A GROUP OF
DEMONSTRATORS PARADING AND PICKETING BEFORE A COURTHOUSE WHERE A
CRIMINAL CHARGE IS PENDING, IN PROTEST AGAINST THE ARREST OF THOSE
CHARGED, MAY BE PRESUMED TO INTEND TO INFLUENCE JUDGES, JURORS,
WITNESSES OR COURT OFFICIALS.  CF. SCREWS V. UNITED STATES, 325 U.S.
91, 107 (OPINION OF MR. JUSTICE DOUGLAS). 

ABSENT AN APPROPRIATELY DRAWN AND APPLICABLE STATUTE, ENTIRELY
DIFFERENT CONSIDERATIONS WOULD APPLY IF, FOR EXAMPLE, THE DEMONSTRATORS
WERE PICKETING TO PROTEST THE ACTIONS OF A MAYOR OR OTHER OFFICIAL OF A
CITY COMPLETELY UNRELATED TO ANY JUDICIAL PROCEEDINGS, WHO JUST
HAPPENED TO HAVE AN OFFICE LOCATED IN THE COURTHOUSE BUILDING.  CF. IN
RE BRINN, 305 N.Y. 887, 114 N.E.2D 430; JOINT HEARINGS, SUPRA, AT 20. 

IV. 

THERE ARE, HOWEVER, MORE SUBSTANTIAL CONSTITUTIONAL OBJECTIONS
ARISING FROM APPELLANT'S CONVICTION ON THE PARTICULAR FACTS OF THIS
CASE.  APPELLANT WAS CONVICTED FOR DEMONSTRATING NOT "IN," BUT "NEAR"
THE COURTHOUSE.  IT IS UNDISPUTED THAT THE DEMONSTRATION TOOK PLACE ON
THE WEST SIDEWALK, THE FAR SIDE OF THE STREET, EXACTLY 101 FEET FROM
THE COURTHOUSE STEPS AND, JUDGING FROM THE PICTURES IN THE RECORD,
APPROXIMATELY 125 FEET FROM THE COURTHOUSE ITSELF.  THE QUESTION IS
RAISED AS TO WHETHER THE FAILURE OF THE STATUTE TO DEFINE THE WORD
"NEAR" RENDERS IT UNCONSTITUTIONALLY VAGUE.  SEE LANZETTA V. NEW
JERSEY, 306 U.S. 451.  NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN THE
SUPREME COURT, 109 U. PA. L. REV. 67.  IT IS CLEAR THAT THERE IS SOME
LACK OF SPECIFICITY IN A WORD SUCH AS "NEAR."  (FN1)  WHILE THIS LACK
OF SPECIFICITY MAY NOT RENDER THE STATUTE UNCONSTITUTIONALLY VAGUE, AT
LEAST AS APPLIED TO A DEMONSTRATION WITHIN THE SIGHT AND HEARING OF
THOSE IN THE COURTHOUSE, (FN2) IT IS CLEAR THAT THE STATUTE, WITH
RESPECT TO THE DETERMINATION OF HOW NEAR THE COURTHOUSE A PARTICULAR
DEMONSTRATION CAN BE, FORESEES A DEGREE OF ON-THE-SPOT ADMINISTRATIVE
INTERPRETATION BY OFFICIALS CHARGED WITH RESPONSIBILITY FOR
ADMINISTERING AND ENFORCING IT.  IT IS APPARENT THAT DEMONSTRATORS,
SUCH AS THOSE INVOLVED HERE, WOULD JUSTIFIABLY TEND TO RELY ON THIS
ADMINISTRATIVE INTERPRETATION OF HOW "NEAR" THE COURTHOUSE A PARTICULAR
DEMONSTRATION MIGHT TAKE PLACE.  LOUISIANA'S STATUTORY POLICY OF
PRESERVING ORDER AROUND THE COURTHOUSE WOULD COUNSEL ENCOURAGEMENT OF
JUST SUCH RELIANCE.  THIS ADMINISTRATIVE DISCRETION TO CONSTRUE THE
TERM "NEAR" CONCERNS A LIMITED CONTROL OF THE STREETS AND OTHER AREAS
IN THE IMMEDIATE VICINITY OF THE COURTHOUSE AND IS THE TYPE OF NARROW
DISCRETION WHICH THIS COURT HAS RECOGNIZED AS THE PROPER ROLE OF
RESPONSIBLE OFFICIALS IN MAKING DETERMINATIONS CONCERNING THE TIME,
PLACE, DURATION, AND MANNER OF DEMONSTRATIONS.  SEE COX V. NEW
HAMPSHIRE, 312 U.S. 569; POULOS V. NEW HAMPSHIRE, 345 U.S. 395.  SEE
GENERALLY THE DISCUSSION ON THIS POINT IN NO. 24, PP. 553-558, ANTE. 
IT IS NOT THE TYPE OF UNBRIDLED DISCRETION WHICH WOULD ALLOW AN
OFFICIAL TO PICK AND CHOOSE AMONG EXPRESSIONS OF VIEW THE ONES HE WILL
PERMIT TO USE THE STREETS AND OTHER PUBLIC FACILITIES, WHICH WE HAVE
INVALIDATED IN THE OBSTRUCTION OF PUBLIC PASSAGES STATUTE AS APPLIED IN
NO. 24, ANTE.  NOR DOES THIS LIMITED ADMINISTRATIVE REGULATION OF
TRAFFIC WHICH THE COURT HAS CONSISTENTLY RECOGNIZED AS NECESSARY AND
PERMISSIBLE, CONSTITUTE A WAIVER OF LAW WHICH IS BEYOND THE POWER OF
THE POLICE.  OBVIOUSLY TELLING DEMONSTRATORS HOW FAR FROM THE
COURTHOUSE STEPS IS "NEAR" THE COURTHOUSE FOR PURPOSES OF A PERMISSIBLE
PEACEFUL DEMONSTRATION IS A FAR CRY FROM ALLOWING ONE TO COMMIT, FOR
EXAMPLE, MURDER, OR ROBBERY.  (FN3) 

THE RECORD HERE CLEARLY SHOWS THAT THE OFFICIALS PRESENT GAVE
PERMISSION FOR THE DEMONSTRATION TO TAKE PLACE ACROSS THE STREET FROM
THE COURTHOUSE.  COX TESTIFIED THAT THEY GAVE HIM PERMISSION TO CONDUCT
THE DEMONSTRATION ON THE FAR SIDE OF THE STREET.  THIS TESTIMONY IS NOT
ONLY UNCONTRADICTED BUT IS CORROBORATED BY THE STATE'S WITNESSES WHO
WERE PRESENT.  POLICE CHIEF WHITE TESTIFIED THAT HE TOLD COX "HE MUST
CONFINE" THE DEMONSTRATION "TO THE WEST SIDE OF THE STREET."  (FN4)
JAMES ERWIN, NEWS DIRECTOR OF RADIO STATION WIBR, AGREED THAT COX WAS
GIVEN PERMISSION FOR THE ASSEMBLY AS LONG AS IT REMAINED WITHIN A
DESIGNATED TIME.  WHEN SHERIFF CLEMMONS SOUGHT TO BREAK UP THE
DEMONSTRATION, HE FIRST ANNOUNCED, "NOW, YOU HAVE BEEN ALLOWED TO
DEMONSTRATE."  (FN5)  THE SHERIFF TESTIFIED THAT HE HAD "NO OBJECTION"
TO THE STUDENTS "BEING ASSEMBLED ON THAT SIDE OF THE STREET."  FINALLY,
IN ITS BRIEF BEFORE THIS COURT, THE STATE DID NOT CONTEND THAT
PERMISSION WAS NOT GRANTED.  RATHER IN ITS STATEMENT OF THE FACTS AND
ARGUMENT IT CONCEDED THAT THE OFFICIALS GAVE COX AND HIS GROUP SOME
TIME TO DEMONSTRATE ACROSS THE STREET FROM THE COURTHOUSE.  THIS
AGREEMENT BY THE STATE THAT IN FACT PERMISSION HAD BEEN GRANTED TO
DEMONSTRATE ACROSS THE STREET FROM THE COURTHOUSE - AT LEAST FOR A
LIMITED PERIOD OF TIME, WHICH THE STATE CONTENDS WAS SET AT SEVEN
MINUTES - WAS CONFIRMED BY COUNSEL FOR THE STATE IN ORAL ARGUMENT
BEFORE THIS COURT. 

THE RECORD SHOWS THAT AT NO TIME DID THE POLICE RECOMMEND, OR EVEN
SUGGEST, THAT THE DEMONSTRATION BE HELD FURTHER FROM THE COURTHOUSE
THAN IT ACTUALLY WAS.  THE POLICE ADMITTEDLY HAD PRIOR NOTICE THAT THE
DEMONSTRATION WAS PLANNED TO BE HELD IN THE VICINITY OF THE
COURTHOUSE.  THEY WERE PREPARED FOR IT AT THAT POINT AND SO STATIONED
THEMSELVES AND THEIR EQUIPMENT AS TO KEEP THE DEMONSTRATORS ON THE FAR
SIDE OF THE STREET.  AS COX APPROACHED THE VICINITY OF THE COURTHOUSE,
HE WAS MET BY THE CHIEF OF POLICE AND OTHER OFFICIALS.  AT THIS POINT
NOT ONLY WAS IT NOT SUGGESTED THAT THEY HOLD THEIR ASSEMBLY ELSEWHERE,
OR DISBAND, BUT THEY WERE AFFIRMATIVELY TOLD THAT THEY COULD HOLD THE
DEMONSTRATION ON THE SIDEWALK OF THE FAR SIDE OF THE STREET, 101 FEET
FROM THE COURTHOUSE STEPS.  THIS AREA WAS EFFECTIVELY BLOCKED OFF BY
THE POLICE AND TRAFFIC REROUTED. 

THUS, THE HIGHEST POLICE OFFICIALS OF THE CITY, IN THE PRESENCE OF
THE SHERIFF AND MAYOR, IN EFFECT TOLD THE DEMONSTRATORS THAT THEY COULD
MEET WHERE THEY DID, 101 FEET FROM THE COURTHOUSE STEPS, BUT COULD NOT
MEET CLOSER TO THE COURTHOUSE.  IN EFFECT, APPELLANT WAS ADVISED THAT A
DEMONSTRATION AT THE PLACE IT WAS HELD WOULD NOT BE ONE "NEAR" THE
COURTHOUSE WITHIN THE TERMS OF THE STATUTE. 

IN RALEY V. OHIO, 360 U.S. 423, THIS COURT HELD THAT THE DUE PROCESS
CLAUSE PREVENTED CONVICTION OF PERSONS FOR REFUSING TO ANSWER QUESTIONS
OF A STATE INVESTIGATING COMMISSION WHEN THEY RELIED UPON ASSURANCES OF
THE COMMISSION, EITHER EXPRESS OR IMPLIED, THAT THEY HAD A PRIVILEGE
UNDER STATE LAW TO REFUSE TO ANSWER, THOUGH IN FACT THIS PRIVILEGE WAS
NOT AVAILABLE TO THEM.  THE SITUATION PRESENTED HERE IS ANALOGOUS TO
THAT IN RALEY, WHICH WE DEEM TO BE CONTROLLING.  AS IN RALEY, UNDER ALL
THE CIRCUMSTANCES OF THIS CASE, AFTER THE PUBLIC OFFICIALS ACTED AS
THEY DID, TO SUSTAIN APPELLANT'S LATER CONVICTION FOR DEMONSTRATING
WHERE THEY TOLD HIM HE COULD "WOULD BE TO SANCTION AN INDEFENSIBLE SORT
OF ENTRAPMENT BY THE STATE - CONVICTING A CITIZEN FOR EXERCISING A
PRIVILEGE WHICH THE STATE HAD CLEARLY TOLD HIM WAS AVAILABLE TO HIM." 
ID., AT 426.  THE DUE PROCESS CLAUSE DOES NOT PERMIT CONVICTIONS TO BE
OBTAINED UNDER SUCH CIRCUMSTANCES. 

THIS IS NOT TO SAY THAT HAD THE APPELLANT, ENTIRELY ON HIS OWN, HELD
THE DEMONSTRATION ACROSS THE STREET FROM THE COURTHOUSE WITHIN THE
SIGHT AND HEARING OF THOSE INSIDE, OR A FORTIORI, HAD HE DEFIED AN
ORDER OF THE POLICE REQUIRING HIM TO HOLD THIS DEMONSTRATION AT SOME
POINT FURTHER AWAY OUT OF THE SIGHT AND HEARING OF THOSE INSIDE THE
COURTHOUSE, WE WOULD REVERSE THE CONVICTION AS IN THIS CASE.  IN SUCH
CASES A STATE INTERPRETATION OF THE STATUTE TO APPLY TO THE
DEMONSTRATION AS BEING "NEAR" THE COURTHOUSE WOULD BE SUBJECT TO QUITE
DIFFERENT CONSIDERATIONS.  SEE P. 568, SUPRA. 

THERE REMAINS JUST ONE FINAL POINT:  THE EFFECT OF THE SHERIFF'S
ORDER TO DISPERSE.  THE STATE IN EFFECT ARGUES THAT THIS ORDER SOMEHOW
REMOVED THE PRIOR GRANT OF PERMISSION AND RELIANCE ON THE OFFICIALS'
CONSTRUCTION THAT THE DEMONSTRATION ON THE FAR SIDE OF THE STREET WAS
NOT ILLEGAL AS BEING "NEAR" THE COURTHOUSE.  THIS, HOWEVER, WE CANNOT
ACCEPT.  APPELLANT WAS LED TO BELIEVE THAT HIS DEMONSTRATION ON THE FAR
SIDE OF THE STREET VIOLATED NO STATUTE.  HE WAS EXPRESSLY ORDERED TO
LEAVE, NOT BECAUSE HE WAS PEACEFULLY DEMONSTRATING TOO NEAR THE
COURTHOUSE, NOR BECAUSE A TIME LIMIT ORIGINALLY SET HAD EXPIRED, BUT
BECAUSE OFFICIALS ERRONEOUSLY CONCLUDED THAT WHAT HE SAID THREATENED A
BREACH OF THE PEACE.  THIS IS APPARENT FROM THE FACE OF THE SHERIFF'S
STATEMENT WHEN HE ORDERED THE MEETING DISPERSED:  "NOW, YOU HAVE BEEN
ALLOWED TO DEMONSTRATE.  UP UNTIL NOW YOUR DEMONSTRATION HAS BEEN MORE
OR LESS PEACEFUL, BUT WHAT YOU ARE DOING NOW IS A DIRECT VIOLATION OF
THE LAW, A DISTURBANCE OF THE PEACE, AND IT HAS GOT TO BE BROKEN UP
IMMEDIATELY."  SEE DISCUSSION IN NO. 24, ANTE, AT 545-551.  APPELLANT
CORRECTLY CONCEIVED, AS WE HAVE HELD IN NO. 24, ANTE, THAT THIS WAS NOT
A VALID REASON FOR THE DISPERSAL ORDER.  HE THEREFORE WAS STILL
JUSTIFIED IN HIS CONTINUED BELIEF THAT BECAUSE OF THE ORIGINAL OFFICIAL
GRANT OF PERMISSION HE HAD A RIGHT TO STAY WHERE HE WAS FOR THE FEW
ADDITIONAL MINUTES REQUIRED TO CONCLUDE THE MEETING.  IN ADDITION, EVEN
IF WE WERE TO ACCEPT THE STATE'S VERSION THAT THE SOLE REASON FOR
TERMINATING THE DEMONSTRATION WAS THAT APPELLANT EXCEEDED THE NARROW
TIME LIMITS (FN6) SET BY THE POLICE, HIS CONVICTION COULD NOT BE
SUSTAINED.  ASSUMING THE PLACE OF THE MEETING WAS APPROPRIATE - AS
APPELLANT JUSTIFIABLY CONCLUDED FROM THE OFFICIAL GRANT OF PERMISSION -
NOTHING IN THIS COURTHOUSE STATUTE, NOR IN THE BREACH OF THE PEACE OR
OBSTRUCTION OF PUBLIC PASSAGES STATUTES WITH THEIR BROAD SWEEP AND
APPLICATION THAT WE HAVE CONDEMNED IN NO. 24, ANTE, AT 553-558,
AUTHORIZES THE POLICE TO DRAW THE NARROW TIME LINE, UNRELATED TO ANY
POLICY OF THESE STATUTES, THAT WOULD BE APPROVED IF WE WERE TO SUSTAIN
APPELLANT'S CONVICTION ON THIS GROUND.  INDEED, THE ALLOWANCE OF SUCH
UNFETTERED DISCRETION IN THE POLICE WOULD ITSELF CONSTITUTE A PROCEDURE
SUCH AS THAT CONDEMNED IN NO. 24, ANTE, AT 553-558.  IN ANY EVENT, AS
WE HAVE STATED, IT IS OUR CONCLUSION FROM THE RECORD THAT THE DISPERSAL
ORDER HAD NOTHING TO DO WITH ANY TIME OR PLACE LIMITATION, AND THUS, ON
THIS GROUND ALONE, IT IS CLEAR THAT THE DISPERSAL ORDER DID NOT REMOVE
THE PROTECTION ACCORDED APPELLANT BY THE ORIGINAL GRANT OF PERMISSION. 

OF COURSE THIS DOES NOT MEAN THAT THE POLICE CANNOT CALL A HALT TO A
MEETING WHICH THOUGH ORIGINALLY PEACEFUL, BECOMES VIOLENT.  NOR DOES IT
MEAN THAT, UNDER PROPERLY DRAFTED AND ADMINISTERED STATUTES AND
ORDINANCES, THE AUTHORITIES CANNOT SET REASONABLE TIME LIMITS FOR
ASSEMBLIES RELATED TO THE POLICIES OF SUCH LAWS AND THEN ORDER THEM
DISPERSED WHEN THESE TIME LIMITS ARE EXCEEDED.  SEE THE DISCUSSION IN
NO. 24, ANTE, AT 553-558.  WE MERELY HOLD THAT, UNDER CIRCUMSTANCES
SUCH AS THOSE PRESENT IN THIS CASE, APPELLANT'S CONVICTION CANNOT BE
SUSTAINED ON THE BASIS OF THE DISPERSAL ORDER. 

NOTHING WE HAVE SAID HERE OR IN NO. 24, ANTE, IS TO BE INTERPRETED AS
SANCTIONING RIOTOUS CONDUCT IN ANY FORM OR DEMONSTRATIONS, HOWEVER
PEACEFUL THEIR CONDUCT OR COMMENDABLE THEIR MOTIVES, WHICH CONFLICT
WITH PROPERLY DRAWN STATUTES AND ORDINANCES DESIGNED TO PROMOTE LAW AND
ORDER, PROTECT THE COMMUNITY AGAINST DISORDER, REGULATE TRAFFIC,
SAFEGUARD LEGITIMATE INTERESTS IN PRIVATE AND PUBLIC PROPERTY, OR
PROTECT THE ADMINISTRATION OF JUSTICE AND OTHER ESSENTIAL GOVERNMENTAL
FUNCTIONS. 

LIBERTY CAN ONLY BE EXERCISED IN A SYSTEM OF LAW WHICH SAFEGUARDS
ORDER.  WE AFFIRM THE REPEATED HOLDINGS OF THIS COURT THAT OUR
CONSTITUTIONAL COMMAND OF FREE SPEECH AND ASSEMBLY IS BASIC AND
FUNDAMENTAL AND ENCOMPASSES PEACEFUL SOCIAL PROTEST, SO IMPORTANT TO
THE PRESERVATION OF THE FREEDOMS TREASURED IN A DEMOCRATIC SOCIETY.  WE
ALSO AFFIRM THE REPEATED DECISIONS OF THIS COURT THAT THERE IS NO PLACE
FOR VIOLENCE IN A DEMOCRATIC SOCIETY DEDICATED TO LIBERTY UNDER LAW,
AND THAT THE RIGHT OF PEACEFUL PROTEST DOES NOT MEAN THAT EVERYONE WITH
OPINIONS OR BELIEFS TO EXPRESS MAY DO SO AT ANY TIME AND AT ANY PLACE. 
THERE IS A PROPER TIME AND PLACE FOR EVEN THE MOST PEACEFUL PROTEST AND
A PLAIN DUTY AND RESPONSIBILITY ON THE PART OF ALL CITIZENS TO OBEY ALL
VALID LAWS AND REGULATIONS.  THERE IS AN EQUALLY PLAIN REQUIREMENT FOR
LAWS AND REGULATIONS TO BE DRAWN SO AS TO GIVE CITIZENS FAIR WARNING AS
TO WHAT IS ILLEGAL; FOR REGULATION OF CONDUCT THAT INVOLVES FREEDOM OF
SPEECH AND ASSEMBLY NOT TO BE SO BROAD IN SCOPE AS TO STIFLE FIRST
AMENDMENT FREEDOMS, WHICH "NEED BREATHING SPACE TO SURVIVE," NAACP V.
BUTTON, 371 U.S. 415, 433; FOR APPROPRIATE LIMITATIONS ON THE
DISCRETION OF PUBLIC OFFICIALS WHERE SPEECH AND ASSEMBLY ARE
INTERTWINED WITH REGULATED CONDUCT; AND FOR ALL SUCH LAWS AND
REGULATIONS TO BE APPLIED WITH AN EQUAL HAND.  WE BELIEVE THAT ALL OF
THESE REQUIREMENTS CAN BE MET IN AN ORDERED SOCIETY DEDICATED TO
LIBERTY.  WE REAFFIRM OUR CONVICTION THAT "FREEDOM AND VIABLE
GOVERNMENT ARE  ...  INDIVISIBLE CONCEPTS."  GIBSON V. FLORIDA
LEGISLATIVE COMM., 372 U.S. 539, 546.    THE APPLICATION OF THESE
PRINCIPLES REQUIRES US TO REVERSE THE JUDGMENT OF THE SUPREME COURT OF
LOUISIANA.  REVERSED.    FN1  THIS IS TO BE CONTRASTED, FOR EXAMPLE,
WITH THE EXPRESS LIMITATION PROSCRIBING CERTAIN ACTS WITHIN 500 FEET OF
FOREIGN EMBASSIES, LEGATIONS, OR CONSULATES WITHIN THE DISTRICT OF
COLUMBIA.  52 STAT. 30 (1938); D.C. CODE, 1961, SEC. 22-1115.  SEE ALSO
MCKINNEY'S N.Y. LAWS, PENAL LAW SEC. 600 (PROHIBITING CERTAIN
ACTIVITIES WITHIN 200 FEET OF A COURTHOUSE). 

FN2  CF. UNITED STATES V. NATIONAL DAIRY PRODUCTS CORP., 372 U.S. 29;
NOTE, 109 U. PA. L. REV. 67.  CF. COLE V. ARKANSAS, 333 U.S. 196
(HOLDING CONSTITUTIONAL A STATUTE MAKING CERTAIN TYPES OF ACTION
UNLAWFUL IF DONE "AT OR NEAR" ANY PLACE WHERE A LABOR DISPUTE EXISTS,
THOUGH THE ISSUE OF THE POSSIBLE VAGUENESS OF THE WORD "NEAR" IN THE
CONTEXT OF THAT CASE WAS NOT EXPRESSLY FACED). 

FN3  SEE AMERICAN LAW INSTITUTE, MODEL PENAL CODE SEC. 2.04(3)(B) AND
COMMENT THEREON, TENTATIVE DRAFT NO. 4, PP. 17-18, 138-139; HALL AND
SELIGMAN, MISTAKE OF LAW AND MENS REA, 8 U. CHI.  L. REV. 641, 675-677
(1941); PEOPLE V. FERGUSON, 134 CAL. APP. 41, 24 P.2D 965. 

FN4  IT IS TRUE THAT THE CHIEF TESTIFIED THAT HE DID NOT SUBJECTIVELY
INTEND TO GRANT PERMISSION, BUT THERE IS NO EVIDENCE AT ALL THAT THIS
SUBJECTIVE STATE OF MIND WAS EVER COMMUNICATED TO APPELLANT, OR IN FACT
TO ANYONE ELSE PRESENT. 

FN5  SEE P. 572, INFRA, FOR THE SHERIFF'S FULL STATEMENT AT THIS
TIME. 

FN6  AS WE HAVE POINTED OUT IN NO. 24, ANTE, AT 541, N.2, THE
EVIDENCE IS CONFLICTING AS TO WHETHER APPELLANT AND HIS GROUP WERE
GIVEN ONLY A LIMITED TIME TO HOLD THEIR MEETING AND WHETHER, IF SO,
SUCH A TIME LIMIT WAS EXCEEDED. 

MR. JUSTICE BLACK, CONCURRING IN NO. 24 AND DISSENTING IN NO. 49. 

I CONCUR IN THE COURT'S JUDGMENT REVERSING APPELLANT COX'S
CONVICTIONS FOR VIOLATION OF THE LOUISIANA STATUTES PROHIBITING BREACH
OF THE PEACE AND OBSTRUCTING PUBLIC PASSAGES, BUT I DO SO FOR REASONS
WHICH DIFFER SOMEWHAT FROM THOSE STATED IN THE COURT'S OPINION.  I
THEREFORE DEEM IT APPROPRIATE TO STATE SEPARATELY MY REASONS FOR VOTING
TO HOLD BOTH THESE STATUTES UNCONSTITUTIONAL AND TO REVERSE THE
CONVICTIONS UNDER THEM.  ON THE OTHER HAND, I HAVE NO DOUBT THAT THE
STATE HAS POWER TO PROTECT JUDGES, JURORS, WITNESSES, AND COURT
OFFICERS FROM INTIMIDATION BY CROWDS WHICH SEEK TO INFLUENCE THEM BY
PICKETING, PATROLLING, OR PARADING IN OR NEAR THE COURTHOUSES IN WHICH
THEY DO THEIR BUSINESS OR THE HOMES IN WHICH THEY LIVE, AND I THEREFORE
BELIEVE THAT THE LOUISIANA STATUTE WHICH PROTECTS THE ADMINISTRATION OF
JUSTICE BY FORBIDDING SUCH INTERFERENCES IS CONSTITUTIONAL, BOTH AS
WRITTEN AND AS APPLIED.  SINCE I BELIEVE THAT THE EVIDENCE SHOWED
PRACTICALLY WITHOUT DISPUTE THAT APPELLANT VIOLATED THIS STATUTE, I
THINK THIS CONVICTION SHOULD BE AFFIRMED. 

THERE WAS AMPLE EVIDENCE FOR THE JURY TO HAVE FOUND THE FOLLOWING TO
BE THE FACTS:  ON DECEMBER 14, 1961, 23 PERSONS WERE ARRESTED AND PUT
IN JAIL ON A CHARGE OF ILLEGAL PICKETING.  THAT NIGHT APPELLANT COX AND
OTHERS MADE PLANS TO CARRY ON A "DEMONSTRATION," THAT IS, A PARADE AND
MARCH, THROUGH PARTS OF BATON ROUGE, ENDING AT THE COURTHOUSE.  THEIR
PURPOSE WAS TO "PROTEST" AGAINST WHAT THEY CALLED THE "ILLEGAL ARREST"
OF THE 23 PICKETERS.  THEY NEITHER SOUGHT NOR OBTAINED ANY PERMIT FOR
SUCH A USE OF THE STREETS.  THE NEXT MORNING, DECEMBER 15, THE PLAN WAS
CARRIED OUT.  SOME 2,000 PROTESTERS MARCHED TO A POINT 101 FEET ACROSS
THE STREET FROM THE COURTHOUSE, WHICH ALSO CONTAINED THE JAIL.  STATE
AND COUNTY POLICE OFFICERS, FOR REASONS AS TO WHICH THERE WAS A
CONFLICT IN THE EVIDENCE FROM WHICH DIFFERENT INFERENCES COULD BE
DRAWN, AGREED THAT THE PICKETERS MIGHT STAY THERE FOR A FEW MINUTES. 
THE GROUP SANG SONGS ALONG WITH THE PRISONERS IN THE JAIL AND DID OTHER
THINGS SET OUT IN THE COURT'S OPINION.  LATER STATE AND COUNTY
OFFICIALS TOLD COX, THE GROUP'S LEADER, THAT THE CROWD HAD TO "MOVE
ON."  COX TOLD HIS FOLLOWERS TO STAY WHERE THEY WERE AND THEY DID. 
OFFICERS THEN USED TEAR GAS AND THE PICKETERS RAN AWAY.  COX WAS LATER
ARRESTED. 

                        I. THE BREACH-OF-PEACE CONVICTION. 

I AGREE WITH THAT PART OF THE COURT'S OPINION HOLDING THAT THE
LOUISIANA BREACH-OF-THE-PEACE STATUTE (FN1) ON ITS FACE AND AS
CONSTRUED BY THE STATE SUPREME COURT IS SO BROAD AS TO BE
UNCONSTITUTIONALLY VAGUE UNDER THE FIRST AND FOURTEENTH AMENDMENTS. 
SEE WINTERS V. NEW YORK, 333 U.S. 507, 509-510.  THE STATUTE DOES NOT
ITSELF DEFINE THE CONDITIONS UPON WHICH PEOPLE WHO WANT TO EXPRESS
VIEWS MAY BE ALLOWED TO USE THE PUBLIC STREETS AND HIGHWAYS, BUT LEAVES
THIS TO BE DEFINED BY LAW ENFORCEMENT OFFICERS.  THE STATUTE THEREFORE
NEITHER FORBIDS ALL CROWDS TO CONGREGATE AND PICKET ON STREETS, NOR IS
IT NARROWLY DRAWN TO PROHIBIT CONGREGATING OR PATROLLING UNDER CERTAIN
CLEARLY DEFINED CONDITIONS WHILE PRESERVING THE FREEDOM TO SPEAK OF
THOSE WHO ARE USING THE STREETS AS STREETS IN THE ORDINARY WAY THAT THE
STATE PERMITS.  A STATE STATUTE OF EITHER OF THE TWO TYPES JUST
MENTIONED, REGULATING CONDUCT - PATROLLING AND MARCHING - AS
DISTINGUISHED FROM SPEECH, WOULD IN MY JUDGMENT BE CONSTITUTIONAL,
SUBJECT ONLY TO THE CONDITION THAT IF SUCH A LAW HAD THE EFFECT OF
INDIRECTLY IMPINGING ON FREEDOM OF SPEECH, PRESS, OR RELIGION, IT WOULD
BE UNCONSTITUTIONAL IF UNDER THE CIRCUMSTANCES IT APPEARED THAT THE
STATE'S INTEREST IN SUPPRESSING THE CONDUCT WAS NOT SUFFICIENT TO
OUTWEIGH THE INDIVIDUAL'S INTEREST IN ENGAGING IN CONDUCT CLOSELY
INVOLVING HIS FIRST AMENDMENT FREEDOMS.  AS THIS COURT HELD IN
SCHNEIDER V. STATE, 308 U.S. 147, 161: 

"MERE LEGISLATIVE PREFERENCES OR BELIEFS RESPECTING MATTERS OF PUBLIC
CONVENIENCE MAY WELL SUPPORT REGULATION DIRECTED AT OTHER PERSONAL
ACTIVITIES, BUT BE INSUFFICIENT TO JUSTIFY SUCH AS DIMINISHES THE
EXERCISE OF RIGHTS SO VITAL TO THE MAINTENANCE OF DEMOCRATIC
INSTITUTIONS.  AND SO, AS CASES ARISE, THE DELICATE AND DIFFICULT TASK
FALLS UPON THE COURTS TO WEIGH THE CIRCUMSTANCES AND TO APPRAISE THE
SUBSTANTIALITY OF THE REASONS ADVANCED IN SUPPORT OF THE REGULATION OF
THE FREE ENJOYMENT OF THE RIGHTS." 

SEE ALSO, E.G., BROTHERHOOD OF R. TRAINMEN V. VIRGINIA EX REL.
VIRGINIA STATE BAR, 377 U.S. 1; NAACP V. BUTTON, 371 U.S. 415; NAACP V.
ALABAMA EX REL. PATTERSON, 357 U.S. 449; MARTIN V. CITY OF STRUTHERS,
319 U.S. 141; CANTWELL V. CONNECTICUT, 310 U.S. 296; LOVELL V. CITY OF
GRIFFIN, 303 U.S. 444; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233. 
AS I DISCUSSED AT LENGTH IN MY DISSENTING OPINION IN BARENBLATT V.
UNITED STATES, 360 U.S. 109, 141-142, WHEN PASSING ON THE VALIDITY OF A
REGULATION OF CONDUCT, WHICH MAY INDIRECTLY INFRINGE ON FREE SPEECH,
THIS COURT DOES, AND I AGREE THAT IT SHOULD, "WEIGH THE CIRCUMSTANCES:
IN ORDER TO PROTECT, NOT TO DESTROY, FREEDOM OF SPEECH, PRESS, AND
RELIGION. 

THE FIRST AND FOURTEENTH AMENDMENTS, I THINK, TAKE AWAY FROM
GOVERNMENT, STATE AND FEDERAL, ALL POWER TO RESTRICT FREEDOM OF SPEECH,
PRESS, AND ASSEMBLY WHERE PEOPLE HAVE A RIGHT TO BE FOR SUCH PURPOSES. 
THIS DOES NOT MEAN, HOWEVER, THAT THESE AMENDMENTS ALSO GRANT A
CONSTITUTIONAL RIGHT TO ENGAGE IN THE CONDUCT OF PICKETING OR
PATROLLING, WHETHER ON PUBLICLY OWNED STREETS OR ON PRIVATELY OWNED
PROPERTY.  SEE LABOR BOARD V. FRUIT & VEGETABLE PACKERS & WAREHOUSEMEN,
377 U.S. 58, 76 (CONCURRING OPINION).  WERE THE LAW OTHERWISE, PEOPLE
ON THE STREETS, IN THEIR HOMES AND ANYWHERE ELSE COULD BE COMPELLED TO
LISTEN AGAINST THEIR WILL TO SPEAKERS THEY DID NOT WANT TO HEAR. 
PICKETING, THOUGH IT MAY BE UTILIZED TO COMMUNICATE IDEAS, IS NOT
SPEECH, AND THEREFORE IS NOT OF ITSELF PROTECTED BY THE FIRST
AMENDMENT.  HUGHES V. SUPERIOR COURT, 339 U.S. 460, 464-466; GIBONEY V.
EMPIRE STORAGE & ICE CO., 336 U.S. 490; BAKERY & PASTRY DRIVERS &
HELPERS V. WOHL, 315 U.S. 769, 775-777 (DOUGLAS, J., CONCURRING). 

HOWEVER, BECAUSE LOUISIANA'S BREACH-OF-PEACE STATUTE IS NOT NARROWLY
DRAWN TO ASSURE NONDISCRIMINATORY APPLICATION, I THINK IT IS
CONSTITUTIONALLY INVALID UNDER OUR HOLDING IN EDWARDS V. SOUTH
CAROLINA, 372 U.S. 229.  SEE ALSO MUSSER V. UTAH, 333 U.S. 95, 96-97. 
EDWARDS, HOWEVER, AS I UNDERSTAND IT, DID NOT HOLD THAT EITHER PRIVATE
PROPERTY OWNERS OR THE STATES ARE CONSTITUTIONALLY REQUIRED TO SUPPLY A
PLACE FOR PEOPLE TO EXERCISE FREEDOM OF SPEECH OR ASSEMBLY.  SEE BELL
V. MARYLAND, 378 U.S. 226, 344-346 (DISSENTING OPINION).  WHAT EDWARDS
AS I READ IT DID HOLD, AND CORRECTLY I THINK, WAS NOT THAT THE FEDERAL
CONSTITUTION PROHIBITED SOUTH CAROLINA FROM MAKING IT UNLAWFUL FOR
PEOPLE TO CONGREGATE, PICKET, AND PARADE ON OR NEAR THAT STATE'S
CAPITOL GROUNDS, BUT RATHER THAT IN THE ABSENCE OF A CLEAR, NARROWLY
DRAWN, NONDISCRIMINATORY STATUTE PROHIBITING SUCH GATHERINGS AND
PICKETING, SOUTH CAROLINA COULD NOT PUNISH PEOPLE FOR ASSEMBLING AT THE
CAPITOL TO PETITION FOR REDRESS OF GRIEVANCES.  IN THE CASE BEFORE US
LOUISIANA HAS BY A BROAD, VAGUE STATUTE GIVEN POLICEMEN AN UNLIMITED
POWER TO ORDER PEOPLE OFF THE STREETS, NOT TO ENFORCE A SPECIFIC,
NONDISCRIMINATORY STATE STATUTE FORBIDDING PATROLLING AND PICKETING,
BUT RATHER WHENEVER A POLICEMAN MAKES A DECISION ON HIS OWN PERSONAL
JUDGMENT THAT VIEWS BEING EXPRESSED ON THE STREET ARE PROVOKING OR
MIGHT PROVOKE A BREACH OF THE PEACE.  SUCH A STATUTE DOES NOT PROVIDE
FOR GOVERNMENT BY CLEARLY DEFINED LAWS, BUT RATHER FOR GOVERNMENT BY
THE MOMENT-TO-MOMENT OPINIONS OF A POLICEMAN ON HIS BEAT.   COMPARE
YICK WO V. HOPKINS, 118 U.S. 356, 369-370.  THIS KIND OF STATUTE
PROVIDES A PERFECT DEVICE TO ARREST PEOPLE WHOSE VIEWS DO NOT SUIT THE
POLICEMAN OR HIS SUPERIORS, WHILE LEAVING FREE TO TALK ANYONE WITH
WHOSE VIEWS THE POLICE AGREE.  SEE FEINER V. NEW YORK, 340 U.S. 315,
321 (DISSENTING OPINION); CF. PETERS V. HOBBY, 349 U.S. 331, 349-350
(CONCURRING OPINION); BARSKY V. BOARD OF REGENTS, 347 U.S. 442, 463-464
(DISSENTING OPINION); SHAUGHNESSY V. UNITED STATES EX REL. MEZEI, 345
U.S. 206, 217-218 (DISSENTING OPINION); LUDECKE V. WATKINS, 335 U.S.
160, 173 (DISSENTING OPINION).   IN THIS SITUATION I THINK EDWARDS V.
SOUTH CAROLINA AND OTHER SUCH CASES INVALIDATING STATUTES FOR VAGUENESS
ARE CONTROLLING.  MOREOVER, BECAUSE THE STATUTE MAKES AN EXCEPTION FOR
LABOR ORGANIZATIONS AND THEREFORE TRIES TO LIMIT ACCESS TO THE STREETS
TO SOME VIEWS BUT NOT OTHERS, I BELIEVE IT IS UNCONSTITUTIONAL FOR THE
REASONS DISCUSSED IN PART II OF THIS OPINION, DEALING WITH THE STREET
OBSTRUCTION STATUTE, INFRA.  FOR ALL THE REASONS STATED I CONCUR IN
REVERSING THE CONVICTION BASED ON THE BREACH-OF-PEACE STATUTE. 

                     II.  THE OBSTRUCTING-PUBLIC-PASSAGES
CONVICTION. 

THE LOUISIANA LAW AGAINST OBSTRUCTING THE STREETS AND SIDEWALKS,
(FN2) WHILE APPLIED HERE SO AS TO CONVICT NEGROES FOR ASSEMBLING AND
PICKETING ON STREETS AND SIDEWALKS FOR THE PURPOSE OF PUBLICLY
PROTESTING RACIAL DISCRIMINATION, EXPRESSLY PROVIDES THAT THE STATUTE
SHALL NOT BAR PICKETING AND ASSEMBLY BY LABOR UNIONS PROTESTING UNFAIR
TREATMENT OF UNION MEMBERS.  I BELIEVE THAT THE FIRST AND FOURTEENTH
AMENDMENTS REQUIRE THAT IF THE STREETS OF A TOWN ARE OPEN TO SOME
VIEWS, THEY MUST BE OPEN TO ALL.  IT IS WORTH NOTING IN PASSING THAT
THE OBJECTIVES OF LABOR UNIONS AND OF THE GROUP LED BY COX HERE MAY
HAVE MUCH IN COMMON.  BOTH FREQUENTLY PROTEST DISCRIMINATION AGAINST
THEIR MEMBERS IN THE MATTER OF EMPLOYMENT.  COMPARE NEW NEGRO ALLIANCE
V. SANITARY GROCERY CO., 303 U.S. 552, 561.   THIS LOUISIANA LAW OPENS
THE STREETS FOR UNION ASSEMBLY, PICKETING, AND PUBLIC ADVOCACY, WHILE
DENYING THAT OPPORTUNITY TO GROUPS PROTESTING AGAINST RACIAL
DISCRIMINATION.  AS I SAID ABOVE, I HAVE NO DOUBT ABOUT THE GENERAL
POWER OF LOUISIANA TO BAR ALL PICKETING ON ITS STREETS AND HIGHWAYS. 
STANDING, PATROLLING, OR MARCHING BACK AND FORTH ON STREETS IS CONDUCT,
NOT SPEECH, AND AS CONDUCT CAN BE REGULATED OR PROHIBITED.  BUT BY
SPECIFICALLY PERMITTING PICKETING FOR THE PUBLICATION OF LABOR UNION
VIEWS, LOUISIANA IS ATTEMPTING TO PICK AND CHOOSE AMONG THE VIEWS IT IS
WILLING TO HAVE DISCUSSED ON ITS STREETS.  IT THUS IS TRYING TO
PRESCRIBE BY LAW WHAT MATTERS OF PUBLIC INTEREST PEOPLE WHOM IT ALLOWS
TO ASSEMBLE ON ITS STREETS MAY AND MAY NOT DISCUSS.  THIS SEEMS TO ME
TO BE CENSORSHIP IN A MOST ODIOUS FORM, UNCONSTITUTIONAL UNDER THE
FIRST AND FOURTEENTH AMENDMENTS.  AND TO DENY THIS APPELLANT AND HIS
GROUP USE OF THE STREETS BECAUSE OF THEIR VIEWS AGAINST RACIAL
DISCRIMINATION, WHILE ALLOWING OTHER GROUPS TO USE THE STREETS TO VOICE
OPINIONS ON OTHER SUBJECTS, ALSO AMOUNTS, I THINK, TO AN INVIDIOUS
DISCRIMINATION FORBIDDEN BY THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  (FN3)  MOREOVER, AS THE COURT POINTS OUT, CITY
OFFICIALS DESPITE THIS STATUTE APPARENTLY HAVE PERMITTED FAVORED GROUPS
OTHER THAN LABOR UNIONS TO BLOCK THE STREETS WITH THEIR GATHERINGS. 
FOR THESE REASONS I CONCUR IN REVERSING THE CONVICTION BASED ON THIS
LAW. 

                  III.  THE CONVICTION FOR PICKETING NEAR A
COURTHOUSE. 

I WOULD SUSTAIN THE CONVICTION OF APPELLANT FOR VIOLATION OF
LOUISIANA'S REV. STAT.  SEC. 14:401 (CUM. SUPP. 1962), WHICH MAKES IT
AN OFFENSE FOR ANYONE, UNDER ANY CONDITIONS, TO PICKET OR PARADE NEAR A
COURTHOUSE, RESIDENCE OR OTHER BUILDING USED BY A JUDGE, JUROR,
WITNESS, OR COURT OFFICER, "WITH THE INTENT OF INFLUENCING" ANY OF
THEM.  (FN4)  CERTAINLY THE RECORD SHOWS BEYOND ALL DOUBT THAT THE
PURPOSE OF THE 2,000 OR MORE PEOPLE WHO STOOD RIGHT ACROSS THE STREET
FROM THE COURTHOUSE AND JAIL WAS TO PROTEST THE ARREST OF MEMBERS OF
THEIR GROUP WHO WERE THEN IN JAIL.  AS THE COURT'S OPINION STATES,
APPELLANT COX SO TESTIFIED.  CERTAINLY THE MOST OBVIOUS REASON FOR
THEIR PROTEST AT THE COURTHOUSE WAS TO INFLUENCE THE JUDGE AND OTHER
COURT OFFICIALS WHO USED THE COURTHOUSE AND PERFORMED THEIR OFFICIAL
DUTIES THERE.  THE COURT ATTEMPTS TO SUPPORT ITS HOLDING BY ITS
INFERENCE THAT THE CHIEF OF POLICE GAVE HIS CONSENT TO PICKETING THE
COURTHOUSE.  BUT QUITE APART FROM THE FACT THAT A POLICE CHIEF CANNOT
AUTHORIZE VIOLATIONS OF HIS STATE'S CRIMINAL LAWS, (FN5) THERE WAS
STRONG, EMPHATIC TESTIMONY THAT IF ANY CONSENT WAS GIVEN IT WAS LIMITED
TO TELLING COX AND HIS GROUP TO COME NO CLOSER TO THE COURTHOUSE THAN
THEY HAD ALREADY COME WITHOUT THE CONSENT OF ANY OFFICIAL, CITY, STATE,
OR FEDERAL.  AND THERE WAS ALSO TESTIMONY THAT WHEN TOLD TO LEAVE
APPELLANT COX DEFIED THE ORDER BY TELLING THE CROWD NOT TO MOVE.  I
FAIL TO UNDERSTAND HOW THE COURT CAN JUSTIFY THE REVERSAL OF THIS
CONVICTION BECAUSE OF A PERMISSION WHICH TESTIMONY IN THE RECORD DENIES
WAS GIVEN, WHICH COULD NOT HAVE BEEN AUTHORITATIVELY GIVEN ANYWAY, AND
WHICH EVEN IF GIVEN WAS SOON AFTERWARDS REVOKED.  WHILE I AGREE THAT
THE RECORD DOES NOT SHOW BOISTEROUS OR VIOLENT CONDUCT OR INDECENT
LANGUAGE ON THE PART OF THE "DEMONSTRATORS," THE AMPLE EVIDENCE THAT
THIS GROUP PLANNED THE MARCH ON THE COURTHOUSE AND CARRIED IT OUT FOR
THE EXPRESS PURPOSE OF INFLUENCING THE COURTHOUSE OFFICIALS IN THE
PERFORMANCE OF THEIR OFFICIAL DUTIES BRINGS THIS CASE SQUARELY WITHIN
THE PROHIBITIONS OF THE LOUISIANA STATUTE AND I THINK LEAVES US WITH NO
ALTERNATIVE BUT TO SUSTAIN THE CONVICTION UNLESS THE STATUTE ITSELF IS
UNCONSTITUTIONAL, AND I DO NOT BELIEVE THAT THIS STATUTE IS
UNCONSTITUTIONAL, EITHER ON ITS FACE OR AS APPLIED. 

THIS STATUTE, LIKE THE FEDERAL ONE WHICH IT CLOSELY RESEMBLES, (FN6)
WAS ENACTED TO PROTECT COURTS AND COURT OFFICIALS FROM THE INTIMIDATION
AND DANGERS THAT INHERE IN HUGE GATHERINGS AT COURTHOUSE DOORS AND JAIL
DOORS TO PROTEST ARRESTS AND TO INFLUENCE COURT OFFICIALS IN PERFORMING
THEIR DUTIES.   THE VERY PRUPOSE OF A COURT SYSTEM IS TO ADJUDICATE
CONTROVERSIES, BOTH CRIMINAL AND CIVIL, IN THE CALMNESS AND SOLEMNITY
OF THE COURTROOM ACCORDING TO LEGAL PROCEDURES.  JUSTICE CANNOT BE
RIGHTLY ADMINISTERED, NOR ARE THE LIVES AND SAFETY OF PRISONERS SECURE,
WHERE THRONGS OF PEOPLE CLAMOR AGAINST THE PROCESSES OF JUSTICE RIGHT
OUTSIDE THE COURTHOUSE OR JAILHOUSE DOORS.  THE STREETS ARE NOT NOW AND
NEVER HAVE BEEN THE PROPER PLACE TO ADMINISTER JUSTICE.  USE OF THE
STREETS FOR SUCH PURPOSES HAS ALWAYS PROVED DISASTROUS TO INDIVIDUAL
LIBERTY IN THE LONG RUN, WHATEVER FLEETING BENEFITS MAY HAVE APPEARED
TO HAVE BEEN ACHIEVED.  AND MINORITY GROUPS, I VENTURE TO SUGGEST, ARE
THE ONES WHO ALWAYS HAVE SUFFERED AND ALWAYS WILL SUFFER MOST WHEN
STREET MULTITUDES ARE ALLOWED TO SUBSTITUTE THEIR PRESSURES FOR THE
LESS GLAMOROUS BUT MORE DEPENDABLE AND TEMPERATE PROCESSES OF THE LAW. 
EXPERIENCE DEMONSTRATES THAT IT IS NOT A FAR STEP FROM WHAT TO MANY
SEEMS THE EARNEST, HONEST, PATRIOTIC, KIND-SPIRITED MULTITUDE OF TODAY,
TO THE FANATICAL, THREATENING, LAWLESS MOB OF TOMORROW.   AND THE
CROWDS THAT PRESS IN THE STREETS FOR NOBLE GOALS TODAY CAN BE
SUPPLANTED TOMORROW BY STREET MOBS PRESSURING THE COURTS FOR PRECISELY
OPPOSITE ENDS. 

MINORITY GROUPS IN PARTICULAR NEED ALWAYS TO BEAR IN MIND THAT THE
CONSTITUTION, WHILE IT REQUIRES STATES TO TREAT ALL CITIZENS EQUALLY
AND PROTECT THEM IN THE EXERCISE OF RIGHTS GRANTED BY THE FEDERAL
CONSTITUTION AND LAWS, DOES NOT TAKE AWAY THE STATE'S POWER, INDEED ITS
DUTY, TO KEEP ORDER AND TO DO JUSTICE ACCORDING TO LAW.  THOSE WHO
ENCOURAGE MINORITY GROUPS TO BELIEVE THAT THE UNITED STATES
CONSTITUTION AND FEDERAL LAWS GIVE THEM A RIGHT TO PATROL AND PICKET IN
THE STREETS WHENEVER THEY CHOOSE, IN ORDER TO ADVANCE WHAT THEY THINK
TO BE A JUST AND NOBLE END, DO NO SERVICE TO THOSE MINORITY GROUPS,
THEIR CAUSE, OR THEIR COUNTRY.  I AM CONFIDENT FROM THIS RECORD THAT
THIS APPELLANT VIOLATED THE LOUISIANA STATUTE BECAUSE OF A MISTAKEN
BELIEF THAT HE AND HIS FOLLOWERS HAD A CONSTITUTIONAL RIGHT TO DO SO,
BECAUSE OF WHAT THEY BELIEVED WERE JUST GRIEVANCES.  BUT THE HISTORY OF
THE PAST 25 YEARS IF IT SHOWS NOTHING ELSE SHOWS THAT HIS GROUP'S
CONSTITUTIONAL AND STATUTORY RIGHTS HAVE TO BE PROTECTED BY THE COURTS,
WHICH MUST BE KEPT FREE FROM INTIMIDATION AND COERCIVE PRESSURES OF ANY
KIND.  GOVERNMENT UNDER LAW AS ORDAINED BY OUR CONSTITUTION IS TOO
PRECIOUS, TOO SACRED, TO BE JEOPARDIZED BY SUBJECTING THE COURTS TO
INTIMIDATORY PRACTICES THAT HAVE BEEN FATAL TO INDIVIDUAL LIBERTY AND
MINORITY RIGHTS WHEREVER AND WHENEVER SUCH PRACTICES HAVE BEEN ALLOWED
TO POISON THE STREAMS OF JUSTICE.  I WOULD BE WHOLLY UNWILLING TO JOIN
IN MOVING THIS COUNTRY A SINGLE STEP IN THAT DIRECTION. 

FN1  LA. REV. STAT. SEC. 14:103:1 (CUM. SUPP. 1962) PROVIDES IN
RELEVANT PART: 

"WHOEVER WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR UNDER
CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED
THEREBY:  (1) CROWDS OR CONGREGATES WITH OTHERS, PROVIDING HOWEVER
NOTHING HEREIN CONTAINED SHALL APPLY TO A BONA FIDE LEGITIMATE LABOR
ORGANIZATION OR TO ANY OF ITS LEGAL ACTIVITIES SUCH AS PICKETING,
UNLAWFUL ASSEMBLY OR CONCERTED ACTIVITY IN THE INTEREST OF ITS MEMBERS
FOR THE PURPOSE OF ACCOMPLISHING OR SECURING MORE FAVORABLE WAGE
STANDARDS, HOURS OF EMPLOYMENT AND WORKING CONDITIONS, IN OR UPON  ...
A PUBLIC STREET OR PUBLIC HIGHWAY, OR UPON A PUBLIC SIDEWALK, OR ANY
OTHER PUBLIC PLACE OR BUILDING  ...  AND WHO FAILS OR REFUSES TO
DISPERSE AND MOVE ON, OR DISPERSE OR MOVE ON, WHEN ORDERED SO TO DO BY
ANY LAW ENFORCEMENT OFFICER OF ANY MUNICIPALITY, OR PARISH, IN WHICH
SUCH ACT OR ACTS ARE COMMITTED, OR BY ANY LAW ENFORCEMENT OFFICER OF
THE STATE OF LOUISIANA, OR ANY OTHER AUTHORIZED PERSON  ... SHALL BE
GUILTY OF DISTURBING THE PEACE  ...  ." 

FN2  LA. REV. STAT. SEC. 14:100.1 (CUM. SUPP. 1962) PROVIDES IN
RELEVANT PART: 

"NO PERSON SHALL WILFULLY OBSTRUCT THE FREE, CONVENIENT AND NORMAL
USE OF ANY PUBLIC SIDEWALK, STREET, HIGHWAY, BRIDGE, ALLEY, ROAD, OR
OTHER PASSAGEWAY, OR THE ENTRANCE, CORRIDOR OR PASSAGE OF ANY PUBLIC
BUILDING, STRUCTURE, WATERCRAFT OR FERRY, BY IMPEDING, HINDERING,
STIFLING, RETARDING OR RESTRAINING TRAFFIC OR PASSAGE THEREON OR
THEREIN. 

"PROVIDING HOWEVER NOTHING HEREIN CONTAINED SHALL APPLY TO A BONA
FIDE LEGITIMATE LABOR ORGANIZATION OR TO ANY OF ITS LEGAL ACTIVITIES
SUCH AS PICKETING, LAWFUL ASSEMBLY OR CONCERTED ACTIVITY IN THE
INTEREST OF ITS MEMBERS FOR THE PURPOSE OF ACCOMPLISHING OR SECURING
MORE FAVORABLE WAGE STANDARDS, HOURS OF EMPLOYMENT AND WORKING
CONDITIONS  ...  ." 

FN3  IT IS OF INTEREST THAT APPELLANT COX, ACCORDING TO A STATE
WITNESS, SAID THIS ABOUT THE REASON HIS GROUP PICKETED THE COURTHOUSE:
"HE SAID THAT IN EFFECT THAT IT WAS A PROTEST AGAINST THE ILLEGAL
ARREST OF SOME OF THEIR MEMBERS AND THAT OTHER PEOPLE WERE ALLOWED TO
PICKET AND THAT THEY SHOULD HAVE THE RIGHT TO PICKET  ...  ." 

FN4  LA. REV. STAT. SEC. 14:401 (CUM. SUPP. 1962) PROVIDES IN
RELEVANT PART: 

"WHOEVER, WITH THE INTENT OF INTERFERING WITH, OBSTRUCTING, OR
IMPEDING THE ADMINISTRATION OF JUSTICE, OR WITH THE INTENT OF
INFLUENCING ANY JUDGE, JUROR, WITNESS, OR COURT OFFICER, IN THE
DISCHARGE OF HIS DUTY PICKETS OR PARADES IN OR NEAR A BUILDING HOUSING
A COURT OF THE STATE OF LOUISIANA, OR IN OR NEAR A BUILDING OR
RESIDENCE OCCUPIED OR USED BY SUCH JUDGE, JUROR, WITNESS, OR COURT
OFFICER, OR WITH SUCH INTENT USES ANY SOUND-TRUCK OR SIMILAR DEVICE OR
RESORTS TO ANY OTHER DEMONSTRATION IN OR NEAR ANY SUCH BUILDING OR
RESIDENCE, SHALL BE FINED NOT MORE THAN FIVE THOUSAND DOLLARS OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH  ...  ." 

FN5  CF. UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321,
350-352; CALIFORNIA V. FEDERAL POWER COMM'N, 369 U.S. 482, 484-485;
UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 225-227. 

FN6  18 U.S.C. SEC. 1507 (1958 ED.). 

MR. JUSTICE CLARK, CONCURRING IN NO. 24 AND DISSENTING IN NO. 49. 

ACCORDING TO THE RECORD, THE OPINIONS OF ALL OF LOUISIANA'S COURTS
AND EVEN THE MAJORITY OPINION OF THIS COURT, THE APPELLANT, IN AN
EFFORT TO INFLUENCE AND INTIMIDATE THE COURTS AND LEGAL OFFICIALS OF
BATON ROUGE AND PROCURE THE RELEASE OF 23 PRISONERS BEING HELD FOR
TRIAL, AGITATED AND LED A MOB OF OVER 2,000 STUDENTS IN THE STAGING OF
A MODERN DONNYBROOK FAIR ACROSS FROM THE COURTHOUSE AND JAIL.  HE
PREFERRED TO RESOLVE THE CONTROVERSY IN THE STREETS RATHER THAN SUBMIT
THE QUESTION TO THE NORMAL JUDICIAL PROCEDURES BY CONTACTING THE JUDGE
AND ATTEMPTING TO SECURE BAIL AND AN EARLY TRIAL FOR THE PRISONERS. 

LOUISIANA'S STATUTE, SEC. 14:401, UNDER ATTACK HERE, WAS TAKEN IN
HAEC VERBA FROM A BILL WHICH BECAME 18 U.S.C. SEC. 1507 (1958 ED.). 
THE FEDERAL STATUTE WAS ENACTED BY THE CONGRESS IN 1950 TO PROTECT
FEDERAL COURTS FROM DEMONSTRATIONS SIMILAR TO THE ONE INVOLVED IN THIS
CASE.  IT APPLIES TO THE SUPREME COURT BUILDING WHERE THIS COURT SITS. 
I UNDERSTAND THAT SEC. 1507 WAS WRITTEN BY MEMBERS OF THIS COURT AFTER
DISTURBANCES SIMILAR TO THE ONE HERE OCCURRED AT BUILDINGS HOUSING
FEDERAL COURTS.  NATURALLY, THE COURT COULD HARDLY BE EXPECTED TO HOLD
ITS PROGENY INVALID EITHER ON THE GROUND THAT THE USE IN THE STATUTE OF
THE PHRASE "IN OR NEAR A BUILDING HOUSING A COURT" WAS VAGUE OR THAT IT
VIOLATED FREE SPEECH OR ASSEMBLY.  IT HAS BEEN SAID THAT AN AUTHOR IS
ALWAYS PLEASED WITH HIS OWN WORK. 

BUT THE COURT EXCUSES COX'S BRAZEN DEFIANCE OF THE STATUTE - THE
VALIDITY OF WHICH THE COURT UPHOLDS - ON A MUCH MORE SUBTLE GROUND.  IT
SEIZES UPON THE ACQUIESCENCE OF THE CHIEF OF POLICE ARISING FROM THE
LAUDABLE MOTIVE TO AVOID VIOLENCE AND POSSIBLE BLOODSHED TO FIND THAT
HE MADE AN ON-THE-SPOT ADMINISTRATIVE DETERMINATION THAT A
DEMONSTRATION CONFINED TO THE WEST SIDE OF ST. LOUIS STREET - 101 FEET
FROM THE COURTHOUSE STEPS - WOULD NOT BE "NEAR" ENOUGH TO THE COURT
BUILDING TO VIOLATE THE STATUTE.  IT THEN HOLDS THAT THE ARREST AND
CONVICTION OF APPELLANT FOR DEMONSTRATING THERE CONSTITUTES AN
"INDEFENSIBLE SORT OF ENTRAPMENT," CITING RALEY V. OHIO, 360 U.S. 423
(1959). 

WITH DUE DEFERENCE, THE RECORD WILL NOT SUPPORT THIS NOVEL THEORY. 
NOR IS RALEY APPOSITE.  THIS MOB OF YOUNG NEGROES LED BY COX - 2,000
STRONG - WAS NOT ONLY WITHIN SIGHT BUT IN HEARING DISTANCE OF THE
COURTHOUSE.  THE RECORD IS REPLETE WITH EVIDENCE THAT THE DEMONSTRATORS
WITH THEIR SINGING, CHEERING, CLAPPING AND WAVING OF BANNERS DREW THE
ATTENTION OF THE WHOLE COURTHOUSE SQUARE AS WELL AS THE OCCUPANTS AND
OFFICIALS OF THE COURT BUILDING ITSELF.  INDEED, ONE JUDGE WAS OBLIGED
TO LEAVE THE BUILDING.  THE 23 STUDENTS WHO HAD BEEN ARRESTED FOR SIT
IN DEMONSTRATIONS THE DAY BEFORE AND WHO WERE IN CUSTODY IN THE
BUILDING WERE ALSO AROUSED TO SUCH AN EXTENT THAT THEY SANG AND CHEERED
TO THE DEMONSTRATORS FROM THE JAIL WHICH WAS IN THE COURTHOUSE AND THE
DEMONSTRATORS RETURNED THE NOTICE WITH LIKE ACTIVITY.  THE LAW
ENFORCEMENT OFFICIALS WERE CONFRONTED WITH A DIRECT OBSTRUCTION TO THE
ORDERLY ADMINISTRATION OF THEIR DUTIES AS WELL AS AN INTERFERENCE WITH
THE COURTS.  ONE HARDLY NEEDED AN ON-THE-SPOT ADMINISTRATIVE DECISION
THAT THE DEMONSTRATION WAS "NEAR" THE COURTHOUSE WITH THE DISTURBANCE
BEING CONDUCTED BEFORE THE EYES AND RINGING IN THE EARS OF COURT
OFFICIALS, POLICE OFFICERS AND CITIZENS THROUGHOUT THE COURTHOUSE. 

MOREOVER, THE CHIEF TESTIFIED THAT WHEN COX AND THE 2,000 NEGROES
APPROACHED HIM ON THE WAY TO THE COURTHOUSE HE WAS FACED WITH A
"SITUATION THAT WAS ACCOMPLISHED."  FROM THE BEGINNING THEY HAD BEEN
TOLD NOT TO PROCEED WITH THEIR MARCH; TWICE OFFICERS HAD REQUESTED THEM
TO TURN BACK TO THE SCHOOL; ON EACH OCCASION THEY HAD REFUSED.  FINDING
THAT HE COULD NOT STOP THEM WITHOUT THE USE OF FORCE THE CHIEF TOLD COX
THAT HE MUST CONFINE THE DEMONSTRATION TO THE WEST SIDE OF ST. LOUIS
STREET ACROSS FROM THE COURTHOUSE. 

ALL THE WITNESSES, INCLUDING THE APPELLANT, STATE THAT THE TIME FOR
THE DEMONSTRATION WAS EXPRESSLY LIMITED.  THE STATE'S WITNESSES SAY
SEVEN MINUTES, WHILE COX CLAIMS HIS SPEECH WAS TO BE SEVEN MINUTES BUT
THE PROGRAM WOULD TAKE FROM 17 TO 25 MINUTES.  REGARDLESS OF THE AMOUNT
OF TIME AGREED UPON, IT IS A NOVEL CONSTRUCTION OF THE FACTS TO SAY
THAT THE GRANT OF PERMISSION TO DEMONSTRATE FOR A LIMITED PERIOD OF
TIME WAS AN ADMINISTRATIVE DETERMINATION THAT THE WEST SIDE OF THE
STREET WAS NOT "NEAR" THE COURTHOUSE.  THIS IMPLIES THAT THE AMOUNT OF
TIME MIGHT SOMEHOW BE RELEVANT IN DECIDING WHETHER AN ACTIVITY IS
WITHIN THE PROHIBITIONS OF THE STATUTE.  THE INCLUSION OF A TIME
LIMITATION IS, TO ME, ENTIRELY INCONSISTENT WITH THE VIEW THAT AN
ADMINISTRATIVE DETERMINATION WAS MADE.  THE ONLY WAY THE COURT CAN
SUPPORT ITS FINDING IS TO IGNORE THE TIME LIMITATION AND HOLD - AS IT
DOES SUB SILENTIO - THAT ONCE COX AND THE 2,000 DEMONSTRATORS WERE
PERMITTED TO OCCUPY THE SIDEWALK THEY COULD REMAIN INDEFINITELY.  ONCE
THE ADMINISTRATIVE DETERMINATION WAS MADE THAT THE WEST SIDE OF ST.
LOUIS STREET WAS NOT SO CLOSE TO THE COURTHOUSE AS TO VIOLATE THE
STATUTE IT COULD NOT BE LATER DRAWN WITHIN THE PROHIBITED ZONE BY COX'S
REFUSAL TO LEAVE.  THUS THE 2,000 DEMONSTRATORS MUST BE ALLOWED TO
REMAIN THERE UNLESS IN THE MEANWHILE SOME OTHER STATUTE EMPOWERS THE
STATE TO EJECT THEM.  THIS, I SUBMIT, IS A COMPLETE FRUSTRATION OF THE
POWER OF THE STATE. 

BECAUSE I AM UNABLE TO AGREE THAT THE WORD "NEAR," WHEN APPLIED TO
THE FACTS OF THIS CASE, REQUIRED AN ADMINISTRATIVE INTERPRETATION, AND
SINCE I FEEL THAT THE RECORD REFUTES THE CONCLUSION THAT IT WAS MADE, I
MUST RESPECTFULLY DISSENT FROM SUCH A FINDING.    NOR CAN I FOLLOW THE
COURT'S LOGIC WHEN IT HOLDS THAT THE CASE IS CONTROLLED BY RALEY V.
OHIO, SUPRA.  IN RALEY THE PETITIONERS WHOSE CONVICTIONS WERE REVERSED
WERE TOLD THAT THEY HAD A RIGHT TO EXERCISE THEIR PRIVILEGE AND REFUSE
TO ANSWER QUESTIONS PROPOUNDED TO THEM IN AN ORDERLY WAY DURING THE
CONDUCT OF A HEARING.  THE ADMINISTRATIVE DETERMINATION UPON WHICH THIS
COURT TURNS THE PRESENT CASE WAS IN ACTUALITY MADE, IF AT ALL, IN THE
HEAT OF A RACIAL DEMONSTRATION IN A SOUTHERN CITY FOR THE SOLE PURPOSE
OF AVOIDING WHAT HAD THE POTENTIALITIES OF A RACE RIOT.  IN RALEY,
THERE WAS NO LARGE CROWD OF 2,000 DEMONSTRATORS ENDANGERING A TENUOUS
RACIAL PEACE.  INDEED, THE PETITIONERS IN RALEY MIGHT WELL HAVE CHOSEN
TO WAIVE THEIR PRIVILEGE AND NOT BE SUBJECT TO PROSECUTION AT ALL BUT
FOR THE ADVICE TENDERED THEM BY THOSE CONDUCTING THE HEARING.  HERE THE
DEMONSTRATORS WERE DETERMINED TO GO TO THE COURTHOUSE REGARDLESS OF
WHAT THE OFFICIALS TOLD THEM REGARDING THE LEGALITY OF THEIR ACTS. 
HERE, LIKE THE ONE PETITIONER IN RALEY WHOSE CONVICTION WAS AFFIRMED BY
AN EQUALLY DIVIDED COURT, APPELLANT NEVER RELIED ON THE ADVICE OR
DETERMINATION OF THE OFFICER.  THE DEMONSTRATION, AS I HAVE PREVIOUSLY
NOTED, WAS A FAIT ACCOMPLI.  IN VIEW OF THESE DISTINCTIONS, I CAN SEE
NO ENTICEMENT OR ENCOURAGEMENT BY AGENTS OF THE STATE SUFFICIENT TO
ESTABLISH A RALEY-TYPE ENTRAPMENT. 

AND EVEN THOUGH ARGUENDO ONE ADMITS THAT THE CHIEF'S ACTION WAS AN
ADMINISTRATIVE DETERMINATION, I CANNOT SEE HOW THE COURT CAN HOLD IT
BINDING ON THE STATE.  IT CERTAINLY WAS NOT MADE IN THE FREE EXERCISE
OF HIS DISCRETION. 

READING THE FACTS IN A WAY MOST FAVORABLE TO THE APPELLANT WOULD, IN
MY OPINION, ESTABLISH ONLY THAT THE CHIEF OF POLICE CONSENTED TO THE
DEMONSTRATION AT THAT LOCATION.  HOWEVER, IF THE CHIEF'S ACTION BE
CONSENT, I NEVER KNEW UNTIL TODAY THAT A LAW ENFORCEMENT OFFICIAL -
CITY, STATE OR NATIONAL - COULD FORGIVE A BREACH OF THE CRIMINAL LAWS. 
I MISSED THAT IN MY LAW SCHOOL, IN MY PRACTICE AND FOR THE TWO YEARS
WHILE I WAS HEAD OF THE CRIMINAL DIVISION OF THE DEPARTMENT OF
JUSTICE. 

I HAVE ALWAYS BEEN TAUGHT THAT THIS NATION WAS DEDICATED TO FREEDOM
UNDER LAW NOT UNDER MOBS, WHETHER THEY BE INTEGRATIONISTS OR WHITE
SUPREMACISTS.  OUR CONCEPT OF EQUAL JUSTICE UNDER LAW ENCOMPASSES NO
SUCH PROTECTION AS THE COURT GIVES COX TODAY.  THE CONTEMPORARY DRIVE
FOR PERSONAL LIBERTY CAN ONLY BE SUCCESSFUL WHEN CONDUCTED WITHIN THE
FRAMEWORK OF DUE PROCESS OF LAW.  GOALS, NOT MATTER HOW LAUDABLE,
PURSUED BY MOBOCRACY IN THE END MUST ALWAYS LEAD TO FURTHER RESTRAINTS
OF FREE EXPRESSION.  TO PERMIT, AND EVEN CONDONE, THE USE OF SUCH
ANARCHISTIC DEVICES TO INFLUENCE THE ADMINISTRATION OF JUSTICE CAN BUT
LEAD US TO DISASTER.  FOR THE COURT TO PLACE ITS IMPRIMATUR UPON IT IS
A MISFORTUNE THAT THOSE WHO LOVE THE LAW WILL ALWAYS REGRET. 

I MUST, THEREFORE, RESPECTFULLY DISSENT FROM THIS ACTION AND JOIN MY
BROTHER BLACK ON THIS FACET OF THE CASE.  I ALSO AGREE WITH HIM THAT
THE STATUTE PROHIBITING OBSTRUCTION OF PUBLIC PASSAGES IS INVALID UNDER
THE EQUAL PROTECTION CLAUSE.  (FN1)  AND, AS WILL BE SEEN, I ARRIVE AT
THE SAME CONCLUSION FOR THE SAME REASON ON THE QUESTION REGARDING THE
THE BREACH OF THE PEACE STATUTE.  HOWEVER, I CANNOT AGREE THAT THE
LATTER ACT IS UNCONSTITUTIONALLY VAGUE. 

THE STATUTE DECLARES CONGREGATING "WITH INTENT TO PROVOKE A BREACH OF
THE PEACE" AND REFUSING TO DISPERSE AFTER BEING ORDERED SO TO DO BY AN
OFFICER TO BE AN OFFENSE.  EACH OF THESE ELEMENTS IS SET OUT IN CLEAR
AND UNEQUIVOCAL LANGUAGE.  CERTAINLY THE LANGUAGE IN THE PRESENT
STATUTE IS NO MORE VAGUE THAN THAT IN THE NEW YORK STATUTE WHICH WAS
CHALLENGED ON VAGUENESS GROUNDS IN FEINER V. NEW YORK, 340 U.S. 315. 
(FN2)  THERE THE COURT UPHELD FEINER'S CONVICTION ON A DISORDERLY
CONDUCT CHARGE.  I CONCUR COMPLETELY IN THE COURT'S STATEMENT THAT THE
PRESENT CASE IS A "FAR CRY FROM THE SITUATION" PRESENTED IN FEINER. 

"THERE THE DEMONSTRATION WAS CONDUCTED BY ONLY ONE PERSON AND THE
CROWD WAS LIMITED TO APPROXIMATELY 80, AS COMPARED WITH THE PRESENT
LINEUP OF SOME 2,000 DEMONSTRATORS AND 250 ONLOOKERS ...  .  PERHAPS
APPELLANT'S SPEECH WAS NOT SO ANIMATED BUT IN THIS SETTING THEIR
ACTIONS  ... CREATED A MUCH GREATER DANGER OF RIOT AND DISORDER.  IT IS
MY BELIEF THAT ANYONE CONVERSANT WITH THE ALMOST SPONTANEOUS COMBUSTION
IN SOME SOUTHERN COMMUNITIES IN SUCH A SITUATION WILL AGREE THAT THE
SHERIFF'S ACTION MAY WELL HAVE AVERTED A MAJOR CATASTROPHE."  EDWARDS
V. SOUTH CAROLINA, 372 U.S. 229, 243-244 (DISSENTING OPINION OF CLARK,
J.). 

NOR CAN I AGREE THAT THE INSTANT CASE IS CONTROLLED BY EITHER EDWARDS
V. SOUTH CAROLINA, SUPRA, OR FIELDS V. SOUTH CAROLINA, 375 U.S. 44
(1963).  BOTH WENT OFF ON THEIR PECULIAR FACTS AND NEITHER DEALT WITH A
SITUATION LIKE THE ONE HERE BEFORE THE COURT.  MOREOVER, EDWARDS AND
FIELDS INVOLVED CONVICTIONS FOR COMMON-LAW BREACH OF THE PEACE AND NOT
VIOLATION OF A STATUTE. 

IN ANY EVENT, I BELIEVE THE LANGUAGE OF THE BREACH OF THE PEACE
STATUTE IS AS FREE FROM AMBIGUITY OR VAGUENESS AS IS THE STATUTE
PROHIBITING PICKETING OF A COURTHOUSE WHICH THE COURT TODAY UPHOLDS. 
THERE THE RELEVANT WORDS ARE PARADING "IN OR NEAR A BUILDING HOUSING A
COURT OF THE STATE  ...  " WITH THE INTENT OF OBSTRUCTING JUSTICE. 
CERTAINLY, BOTH OF THE STATUTES ARE AS CLEAR AS THE WORDS "BELOW COST"
WHICH THIS COURT APPROVED IN UNITED STATES V. NATIONAL DAIRY PRODUCTS,
372 U.S. 29 (1963), AND CASES THERE CITED. 

HOWEVER, BECAUSE THIS STATUTE CONTAINS AN EXPRESS EXCLUSION FOR THE
ACTIVITIES OF LABOR UNIONS, I WOULD HOLD THE STATUTE UNCONSTITUTIONAL
ON THE EQUAL PROTECTION GROUND MY BROTHER BLACK ENUNCIATED WITH REGARD
TO THE STATUTE CONDEMNING OBSTRUCTION OF PUBLIC PASSAGES. 

ON THESE GROUNDS I DISSENT. 

FN1  SEE PARTS I AND II OF HIS OPINION. 

FN2  SECTION 722 OF THE PENAL LAW OF NEW YORK IN EFFECT AT THAT TIME
STATED: 

"ANY PERSON WHO WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR
WHEREBY A BREACH OF THE PEACE MAY BE OCCASIONED, COMMITS ANY OF THE
FOLLOWING ACTS SHALL BE DEEMED TO HAVE COMMITTED THE OFFENSE OF
DISORDERLY CONDUCT: 

"1.  USES OFFENSIVE, DISORDERLY, THREATENING, ABUSIVE OR INSULTING
LANGUAGE, CONDUCT OR BEHAVIOR: 

"2.  ACTS IN SUCH A MANNER AS TO ANNOY, DISTURB, INTERFERE WITH,
OBSTRUCT, OR BE OFFENSIVE TO OTHERS: 

"3.  CONGREGATES WITH OTHERS ON A PUBLIC STREET AND REFUSES TO MOVE
ON WHEN ORDERED BY THE POLICE:

"4.  BY HIS ACTIONS CAUSES A CROWD TO COLLECT, EXCEPT WHEN LAWFULLY
ADDRESSING SUCH A CROWD." 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

IN NO. 49, I AGREE WITH THE DISSENT FILED BY MY BROTHER BLACK IN PART
III OF HIS OPINION.  IN NO. 24, ALTHOUGH I DO NOT AGREE WITH EVERYTHING
THE COURT SAYS CONCERNING THE BREACH OF PEACE CONVICTION, PARTICULARLY
ITS STATEMENT CONCERNING THE UNQUALIFIED PROTECTION TO BE EXTENDED TO
COX'S EXHORTATIONS TO ENGAGE IN SIT-INS IN RESTAURANTS, I AGREE THAT
THE CONVICTION FOR BREACH OF PEACE IS GOVERNED BY EDWARDS V. SOUTH
CAROLINA, 372 U.S. 229, AND MUST BE REVERSED. 

REGRETFULLY, I ALSO DISSENT FROM THE REVERSAL OF THE CONVICTION FOR
OBSTRUCTION OF PUBLIC PASSAGES.  THE LOUISIANA STATUTE IS NOT
INVALIDATED ON ITS FACE BUT ONLY IN ITS APPLICATION.  BUT THIS
REMARKABLE EMASCULATION OF A PROHIBITORY STATUTE IS BASED ON ONLY VERY
VAGUE EVIDENCE THAT OTHER MEETINGS AND PARADES HAVE BEEN ALLOWED BY THE
AUTHORITIES.  THE SOLE INDICATION IN THE RECORD FROM THE STATE COURT
THAT SUCH HAS OCCURRED WAS CONTAINED IN THE TESTIMONY OF THE CHIEF OF
POLICE WHO, IN THE PROCESS OF POINTING OUT THAT COX AND HIS GROUP HAD
NOT ANNOUNCED THE FACT OR PURPOSE OF THEIR MEETING, SAID "MOST
ORGANIZATIONS THAT WANT TO HOLD A PARADE OR A MEETING OF ANY KIND, THEY
HAVE NO RELUCTANCE TO EVIDENCE THEIR DESIRES AT THE START."  THERE IS
NO EVIDENCE IN THE RECORD THAT OTHER MEETINGS OF THIS MAGNITUDE HAD
BEEN ALLOWED ON THE CITY STREETS, HAD BEEN ALLOWED IN THE VICINITY OF
THE COURTHOUSE OR HAD BEEN PERMITTED COMPLETELY TO OBSTRUCT THE
SIDEWALK AND TO BLOCK ACCESS TO ABUTTING BUILDINGS.  INDEED, THE
SHERIFF TESTIFIED THAT "WE HAVE NEVER HAD SUCH A DEMONSTRATION SINCE I
HAVE BEEN IN LAW ENFORCEMENT IN THIS PARISH."  HE ALSO TESTIFIED THAT
"ANY OTHER ORGANIZATION" WOULD HAVE RECEIVED THE SAME TREATMENT IF IT
"HAD CONDUCTED SUCH A DEMONSTRATION IN FRONT OF THE PARISH COURTHOUSE,"
WHETHER IT HAD BEEN "COLORED OR WHITE, PROTESTANT, CATHOLIC, JEWISH,
ANY KIND OF ORGANIZATION, IF THEY HAD CONDUCTED THIS SAME TYPE OF
DEMONSTRATION  ...  ."  SIMILARLY THE TRIAL JUDGE NOTED THAT ALTHOUGH
LOUISIANA RESPECTS FREEDOM OF SPEECH AND THE RIGHT TO PICKET, LOUISIANA
COURTS "HAVE HELD THAT PICKETING IS UNLAWFUL WHEN IT IS MASS
PICKETING." 

AT THE ORAL ARGUMENT IN RESPONSE TO MR. JUSTICE GOLDBERG'S QUESTION
AS TO WHETHER PARADES AND DEMONSTRATIONS ARE ALLOWED IN BATON ROUGE,
COUNSEL SAID, "ARRANGEMENTS ARE USUALLY MADE DEPENDING ON THE SIZE OF
THE DEMONSTRATION, OF COURSE, ARRANGEMENTS ARE MADE WITH THE OFFICIALS
AND THEIR COOPERATION IS NOT ONLY REQUIRED IT IS NEEDED WHERE YOU HAVE
SUCH A LARGE CROWD."  IN MY VIEW, HOWEVER, ALL OF THIS EVIDENCE
TOGETHER FALLS FAR SHORT OF JUSTIFICATION FOR CONVERTING THIS
PROHIBITORY STATE STATUTE INTO AN OPEN-ENDED LICENSING STATUTE INVALID
UNDER PRIOR DECISIONS OF THIS COURT AS APPLIED TO THIS CASE.  THIS IS
PARTICULARLY TRUE SINCE THE COURT'S APPROACH IS ITS OWN INVENTION AND
HAS NOT BEEN URGED OR LITIGATED BY THE PARTIES IN THIS COURT OR THE
COURTS BELOW.  CERTAINLY THE PARTIES HAVE HAD NO OPPORTUNITY TO DEVELOP
OR TO REFUTE THE FACTUAL BASIS UNDERLYING THE COURT'S RATIONALE. 

UNDER THE COURT'S BROAD, RATHER UNCRITICAL APPROACH IT WOULD SEEM
UNAVOIDABLE THAT THESE SAME DEMONSTRATORS COULD HAVE MET IN THE MIDDLE
OF ANY STREET DURING THE RUSH HOUR OR COULD HAVE EXTENDED THEIR MEETING
AT ANY LOCATION HOUR AFTER HOUR, DAY AFTER DAY, WITHOUT RISKING ANY
ACTION UNDER THIS STATUTE FOR INTERFERING WITH THE NORMAL USE OF THE
STREETS AND SIDEWALKS.  I DOUBT THAT THIS BIZARRE INTRUSION INTO LOCAL
MANAGEMENT OF PUBLIC STREETS IS EITHER REQUIRED OR JUSTIFIED BY THE
PRIOR CASES IN THIS COURT. 

FURTHERMORE, EVEN IF THE OBSTRUCTION STATUTE, BECAUSE OF PRIOR
PERMISSION GRANTED TO OTHERS, COULD NOT BE APPLIED IN THIS CASE SO AS
TO PREVENT THE DEMONSTRATION, IT DOES NOT NECESSARILY FOLLOW THAT THE
FEDERAL LICENSE TO USE THE STREETS IS UNLIMITED AS TO TIME AND
CIRCUMSTANCE.  TWO THOUSAND PEOPLE TOOK POSSESSION OF THE SIDEWALK IN
AN ENTIRE CITY BLOCK.  BUILDING ENTRANCES WERE BLOCKED AND NORMAL USE
OF THE SIDEWALK WAS IMPOSSIBLE.  IF THE CROWD WAS ENTITLED TO OBSTRUCT
IN ORDER TO DEMONSTRATE AS THE COURT HOLDS, IT IS NEVERTHELESS
UNNECESSARY TO HOLD THAT THE DEMONSTRATION AND THE OBSTRUCTION COULD
CONTINUE AD INFINITUM.  HERE THE DEMONSTRATION WAS PERMITTED TO PROCEED
FOR THE PERIOD OF TIME THAT THE DEMONSTRATORS HAD REQUESTED.  WHEN THEY
WERE ASKED TO DISBAND, COX TWICE REFUSED.  IF HE COULD REFUSE AT THIS
POINT I THINK HE COULD REFUSE AT ANY LATER TIME AS WELL.  BUT IN MY
VIEW AT SOME POINT THE AUTHORITIES WERE ENTITLED TO APPLY THE STATUTE
AND TO CLEAR THE STREETS.  THAT POINT WAS REACHED HERE.  TO REVERSE THE
CONVICTION UNDER THESE CIRCUMSTANCES MAKES IT ONLY RHETORIC TO TALK OF
LOCAL POWER TO CONTROL THE STREETS UNDER A PROPERLY DRAWN ORDINANCE. 
..END :
















SECURITIES AND EXCHANGE COMMISSION V. AMERICAN TRAILER RENTALS CO. 379
U.S. 594 


NO. 35.  ARGUED NOVEMBER 10, 1964 - DECIDED JANUARY 18, 1965 - 325 F.2D
47, REVERSED AND REMANDED. 


RESPONDENT COMPANY, WHICH WAS IN THE TRAILER RENTAL BUSINESS, WAS
FINANCED BY ARRANGING FOR THE SALE OF TRAILERS TO INVESTORS ON A LEASE
BACK AGREEMENT.  THE TRAILERS WERE PLACED BY RESPONDENT AT HUNDREDS OF
GASOLINE STATIONS WHICH ACTED AS RENTAL AGENTS.  THE SECURITIES AND
EXCHANGE COMMISSION (SEC) BLOCKED THE FURTHER OFFERING OF THE SALE AND
LEASE-BACK AGREEMENTS WITHOUT A REGISTRATION STATEMENT, WHICH NEVER
BECAME EFFECTIVE.  RESPONDENT'S VICE PRESIDENT THEN FORMED A NEW
CORPORATION WHICH SOUGHT TO EXCHANGE ITS STOCK FOR THE INVESTOR
CREDITORS' TRAILERS, BUT THE SEC SUSPENDED THE EXEMPTION FROM
REGISTRATION FOR SMALL OFFERINGS BECAUSE THERE WAS REASONABLE CAUSE TO
BELIEVE THERE WERE FALSE STATEMENTS IN THE MATERIAL USED IN MAKING THE
OFFER.  RESPONDENT THEN FILED A PETITION AND PROPOSED PLAN OF
ARRANGEMENT UNDER CHAPTER XI OF THE BANKRUPTCY ACT.  THE PETITION
SHOWED THAT RESPONDENT NEVER OPERATED AT A PROFIT, THAT IT OWED LARGE
SUMS TO TRAILER INVESTORS, THAT IT MADE PAYMENTS TO INVESTORS WHOSE
TRAILERS HAD NOT BEEN OBTAINED, THAT IT PURCHASED ALL TRAILERS FROM AN
AFFILIATE WHICH HAD GONE BANKRUPT OWING IT MONEY, THAT 100 TRAILERS
WERE LOST, AND THAT SUBSTANTIAL FUNDS HAD BEEN MISAPPROPRIATED.  THE
SEC FILED A MOTION UNDER SEC. 328 OF THE BANKRUPTCY ACT TO TRANSFER THE
PROCEEDING TO CHAPTER X. A REFEREE IN BANKRUPTCY, ACTING AS SPECIAL
MASTER, RECOMMENDED DENIAL OF THE MOTION ON THE GROUND THAT THE SEC HAD
NOT MADE A SUFFICIENT SHOWING.  THE DISTRICT COURT, ALTHOUGH EXPRESSING
DISAPPROVAL OF THE PROPOSED STOCK ARRANGEMENT AND THE PREFERENTIAL
TREATMENT OF UNSECURED BANK LOANS, ACCEPTED THE REFEREE'S FINDINGS AND
DENIED THE MOTION.  THE COURT OF APPEALS AFFIRMED, HOLDING THAT THE
DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN THIS BORDERLINE CASE AND
THE SEC DID NOT SHOW THAT ADEQUATE RELIEF WAS NOT AVAILABLE UNDER
CHAPTER XI.  HELD: 

1.  IN CHAPTERS X AND XI CONGRESS ENACTED TWO DISTINCT METHODS OF
CORPORATE REHABILITATION WHICH ARE MUTUALLY EXCLUSIVE.  PP. 604-607. 

(A)  CHAPTER X AFFORDS GREATER PROTECTION TO CREDITORS AND
STOCKHOLDERS BY PROVIDING JUDICIAL CONTROL OVER THE ENTIRE PROCEEDINGS
AND IMPARTIAL AND EXPERT ASSISTANCE IN CORPORATE REORGANIZATIONS
THROUGH DISINTERESTED TRUSTEES AND THE ACTIVE PARTICIPATION OF THE SEC.
PP. 604-605. 

(B)  CHAPTER XI IS A SUMMARY PROCEDURE, USUALLY UNDER THE CONTROL OF
THE DEBTOR, LIMITED TO AN ADJUSTMENT OF UNSECURED DEBTS, WITH ONLY A
BARE MINIMUM OF CONTROL OR SUPERVISION.  PP. 605-607. 

(C)  THESE ARE NOT ALTERNATE ROUTES, WITH THE CHOICE IN THE DEBTOR'S
HANDS.  P. 607. 

(D)  A CHAPTER X PETITION MAY NOT BE FILED UNLESS "ADEQUATE RELIEF"
IS NOT OBTAINABLE UNDER CHAPTER XI.  P. 607. 

(E)  A CAHPTER XI PETITION IS TO BE DISMISSED, OR IN EFFECT
TRANSFERRED, IF THE PROCEEDINGS SHOULD HAVE BEEN BROUGHT UNDER CHAPTER
X. P. 607. 

2.  WHILE THERE IS NO ABSOLUTE RULE THAT CHAPTER X BE USED IN EVERY
CASE IN WHICH THE DEBTOR IS PUBLICLY OWNED, OR WHERE PUBLICLY HELD DEBT
IS ADJUSTED, AS A GENERAL RULE CHAPTER X IS THE APPROPRIATE PROCEEDING
FOR ADJUSTING PUBLICLY HELD DEBT.  SEC V. UNITED STATES REALTY &
IMPROVEMENT CO., 310 U.S. 434, FOLLOWED.  PP. 613-614. 

(A)  PUBLIC INVESTORS ARE GENERALLY WIDELY SCATTERED AND ARE FAR LESS
LIKELY THAN TRADE CREDITORS TO BE AWARE OF THE FINANCIAL CONDITION AND
CAUSE OF THE COLLAPSE OF THE DEBTOR; THEY ARE LESS COMMONLY ORGANIZED
IN GROUPS OR COMMITTEES CAPABLE OF PROTECTING THEIR INTERESTS; THEY DO
NOT HAVE THE SAME INTEREST AS DO TRADE CREDITORS IN CONTINUING THE
BUSINESS RELATIONS WITH THE DEBTOR; AND, WHERE DEBT IS PUBLICLY HELD,
THE SEC IS LIKELY TO HAVE BECOME FAMILIAR WITH THE DEBTOR'S FINANCES,
INDICATING THE DESIRABILITY OF ITS PERFORMING ITS FULL CHAPTER X
FUNCTIONS.  PP. 613-614. 

(B)  IN ENACTING CHAPTER X CONGRESS HAD THE PROTECTION OF PUBLIC
INVESTORS, AND NOT TRADE CREDITORS, PRIMARILY IN MIND.  P. 614. 

3.  THERE ARE ONLY NARROW LIMITS WITHIN WHICH THERE ARE EXCEPTIONS TO
THIS GENERAL RULE THAT THE RIGHTS OF PUBLIC INVESTOR CREDITORS ARE TO
BE ADJUSTED ONLY UNDER CHAPTER X. "SIMPLE" COMPOSITIONS ARE STILL TO BE
EFFECTED UNDER CHAPTER XI; SUCH SITUATIONS MAY EXIST EVEN WHERE PUBLIC
DEBT IS DIRECTLY AFFECTED, FOR EXAMPLE, WHERE THE PUBLIC INVESTORS ARE
FEW IN NUMBER AND FAMILIAR WITH THE OPERATIONS OF THE DEBTOR, OR WHERE,
ALTHOUGH THE PUBLIC INVESTORS ARE GREATER IN NUMBER, THE ADJUSTMENT OF
THEIR DEBT IS RELATIVELY MINOR.  P. 614. 

4.  EVEN WHERE THERE IS NO PUBLIC DEBT PROBLEM, CHAPTER X IS
APPROPRIATE WHERE THERE ARE WIDESPREAD PUBLIC STOCKHOLDERS NEEDING THE
PROTECTION OFFERED THEREBY, SUCH AS ACCOUNTING FOR MISMANAGEMENT OR
OBTAINING A CHANGE IN MANAGEMENT, OR WHERE THE FINANCIAL CONDITION
REQUIRES MORE THAN A SIMPLE COMPOSITION OF UNSECURED DEBTS.  GENERAL
STORES CORP. V. SHLENSKY, 350 U.S. 462, FOLLOWED.  PP. 6L4-615. 

5.  HERE, WHERE PUBLIC DEBTS ARE BEING ADJUSTED; THE INVESTORS ARE
MANY, WIDESPREAD, AND NOT INTIMATELY CONNECTED IWTH THE DEBTOR; AND THE
ADJUSTMENT IS MAJOR, IT IS OBVIOUS ON THE ABOVE-STATED PRINCIPLES THAT
CHAPTER X IS THE APPROPRIATE PROCEEDING FOR THE DEBTOR'S ATTEMPTED
REHABILITATION.  P. 615. 

6.  THE CONTENTION THAT CAHPTER X IS NOT HERE APPROPRIATE AS THE TIME
AND EXPENSE INVOLVED IN SUCH A PROCEEDING WOULD BE TOO GREAT IS JUST
ANOTHER WAY OF STATING THE NATURAL PREFERENCE OF A DEBTOR'S MANAGEMENT
FOR THE "SPEED AND ECONOMY" OF CHAPTER XI TO THE "THOROUGHNESS AND
DISINTERESTEDNESS" OF CHAPTER X, WHICH PREFERENCE HAS BEEN REJECTED BY
THE DETERMINATION OF CONGRESS THAT THE DISINTERESTED PROTECTION OF THE
PUBLIC INVESTOR OUTWEIGHS THE SELF-INTEREST "NEEDS" OF CORPORATE
MANAGEMENT FOR SO-CALLED "SPEED AND ECONOMY."  PP. 617-618. 

(A)  EXPERIENCE IN THIS AREA HAS CONFIRMED THE VIEW OF CONGRESS THAT
THE THOROUGHNESS AND DISINTERESTEDNESS ASSURED BY CHAPTER X NOT ONLY
RESULTS IN GREATER PROTECTION FOR THE INVESTING PUBLIC, BUT OFTEN IN
GREATER ULTIMATE SAVINGS FOR ALL INTERESTS, PUBLIC AND PRIVATE, THAN
DOES THE SO-CALLED "SPEED AND ECONOMY" OF CHAPTER XI.  PP. 617-618. 

(B)  THE REQUIREMENTS OF CHAPTER X ARE THEMSELVES SUFFICIENTLY
FLEXIBLE SO THAT THE DISTRICT COURT CAN ACT TO KEEP EXPENSES WITHIN
PROPER BOUNDS AND INSURE EXPEDITION IN THE PROCEEDINGS.  P. 618. 

(C)  CHAPTERS X AND XI WERE NOT DESIGNED TO PROLONG - WITHOUT GOOD
REASON AND AT THE EXPENSE OF THE INVESTING PUBLIC - THE CORPORATE LIFE
OF EVERY DEBTOR SUFFERING FROM TERMINAL FINANCIAL ILLS.  P. 618. 

7.  DISTRICT COURTS DO NOT HAVE OPEN-ENDED DISCRETION TO DECIDE IN
EACH CASE WHETHER IT IS BETTER FOR A DEBTOR TO BE IN CHAPTER X OR
CAHPTER XI, BUT MUST DECIDE THE ISSUE PURSUANT TO THE PRINCIPLES HERE
REAFFIRMED.  PP. 619-620. 

SECURITIES AND EXCHANGE COMMISSION V. AMERICAN TRAILER RENTALS CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER RESPONDENT'S ATTEMPTED CORPORATE
REHABILITATION UNDER THE BANKRUPTCY ACT, MATERIALLY AFFECTING THE
RIGHTS OF WIDESPREAD PUBLIC INVESTOR CREDITORS, MAY BE CONDUCTED UNDER
CHAPTER XI OF THE BANKRUPTCY ACT, 52 STAT. 905, AS AMENDED, 11 U.S.C.
SEC. 701 ET SEQ. (1958 ED.), OR WHETHER DISMISSAL OR, IN EFFECT,
TRANSFER TO PROCEEDINGS UNDER CHAPTER X OF THAT ACT, 52 STAT. 883, AS
AMENDED, 11 U.S.C. SEC. 501 ET SEQ. (1958 ED.), IS REQUIRED UPON MOTION
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY OTHER PARTY IN
INTEREST, PURSUANT TO SEC. 328 OF THE BANKRUPTCY ACT, 66 STAT. 432, 11
U.S.C. SEC. 728 (1958 ED.).  (FN1)

                         I. 

RESPONDENT, AMERICAN TRAILER RENTALS COMPANY, WAS ORGANIZED IN 1958
TO ENGAGE IN THE AUTOMOBILE-TRAILER RENTAL BUSINESS.  (FN2)  THE
BUSINESS WAS FINANCED LARGELY THROUGH THE SALE OF TRAILERS TO INVESTORS
AND THEIR SIMULTANEOUS LEASE-BACK.  FROM 1959 TO 1961 HUNDREDS OF SMALL
INVESTORS, SCATTERED THROUGHOUT THE ENTIRE WESTERN PART OF THE UNITED
STATES PURCHASED AND LEASED BACK A TOTAL OF 5,866 TRAILERS, PAYING AN
AGGREGATE PRICE OF $3,587,439 (APPROXIMATELY $600 PER TRAILER).  UNDER
THE USUAL FORM OF LEASE-BACK AGREEMENT, THE TRAILER OWNERS WERE TO
RECEIVE A SET 2% OF THEIR INVESTMENT PER MONTH FOR 10 YEARS.  (FN3) 

THE TRAILERS SOLD TO INVESTORS AND THEN LEASED BACK ARE OF THE
GENERAL UTILITY TYPE THAT ARE ATTACHED TO THE REAR BUMPER OF
AUTOMOBILES.  THEY WERE PLACED BY RESPONDENT AT GASOLINE STATIONS, THE
OPERATORS OF WHICH ACTED AS RESPONDENT'S RENTAL AGENTS, WITHOUT THE
INVESTORS EVER HAVING SEEN THEM.  RESPONDENT HAD ABOUT 700 SUCH SERVICE
STATION OPERATORS IN DECEMBER 1961, ALTHOUGH THE NUMBER HAD DECLINED TO
ABOUT 500 BY THE TIME THE PETITION FOR AN ARRANGEMENT WAS FILED A YEAR
LATER. 

RESPONDENT'S FURTHER OFFERING OF THESE SALE AND LEASE-BACK
ARRANGEMENTS TO THE PUBLIC WAS HALTED IN 1961, WHEN THE SEC ADVISED
RESPONDENT THAT THESE SALE AND LEASE-BACK ARRANGEMENTS WERE INVESTMENT
CONTRACTS AND THEREFORE SECURITIES, WHICH COULD NOT BE SOLD TO THE
PUBLIC UNLESS AND UNTIL A REGISTRATION STATEMENT WAS FILED AND BECAME
EFFECTIVE UNDER THE SECURITIES ACT OF 1933, 48 STAT. 74, AS AMENDED, 15
U.S.C. SEC. 77A ET SEQ. (1958 ED.).  RESPONDENT THEN FILED A
REGISTRATION STATEMENT WITH THE SEC PERTAINING TO THESE SALE AND LEASE
BACK ARRANGEMENTS.  THIS REGISTRATION STATEMENT, HOWEVER, NEVER BECAME
EFFECTIVE, AND PROCEEDINGS WERE INSTITUTED BY THE SEC TO STOP
DISTRIBUTION OF RESPONDENT;S PROPOSED PROSPECTUS ON THE GROUNDS THAT IT
CONTAINED FALSE AND MISLEADING STATEMENTS.  SEE SECURITIES ACT OF 1933,
SEC. 8(D), 48 STAT.  79, 15 U.S.C. SEC. 77HD) (1958 ED.).  IN JUNE
1963, RESPONDENT CONSENTED TO THE ENTRY OF AN ORDER STOPPING
DISTRIBUTION OF THIS PROSPECTUS.  SEE SEC, SECURITIES ACT RELEASE NO.
4615 (1963). 

AFTER THIS ATTEMPT TO REGISTER THE SALE AND LEASE-BACK AGREEMENTS HAD
FAILED, RESPONDENT'S EXECUTIVE VICE PRESIDENT AND OTHER PERSONS
ORGANIZED A CORPORATION NAMED CAPITOL LEASING CORPORATION, WHICH
OFFERED RESPONDENT'S INVESTOR CREDITORS AN EXCHANGE OF ITS STOCK FOR
THEIR TRAILERS ON THE BASIS OF ONE SHARE OF ITS STOCK FOR EACH $2 THE
INVESTOR CREDITORS HAD PAID FOR THE TRAILERS.  AFTER CAPITOL HAD
ACQUIRED APPROXIMATELY 300 OF THE 5,866 TRAILERS OUTSTANDING IN
EXCHANGE FOR ITS STOCK, THE SEC SUSPENDED THE EXEMPTION FROM
REGISTRATION FOR SMALL OFFERINGS, UPON WHICH CAPITOL HAD RELIED IN
MAKING THIS OFFER, (FN4) ON THE GROUNDS THAT THERE WAS REASONABLE CAUSE
TO BELIEVE THAT THE MATERIAL USED IN MAKING THIS OFFER AGAIN CONTAINED
FALSE AND MISLEADING STATEMENTS. 

FOLLOWING THIS EVENT, RESPONDENT FILED A PETITION AND A PROPOSED PLAN
OF ARRANGEMENT UNDER CHAPTER XI OF THE BANKRUPTCY ACT.  THE PETITION,
ANNEXED SCHEDULES, AND OTHER DOCUMENTS SHOW THAT RESPONDENT HAD NEVER
OPERATED AT A PROFIT.  FOR THE THREE YEARS ENDED SEPTEMBER 30, 1961, IT
HAD AN AGGREGATE INCOME FROM "GROSS RENTALS" OF $395,610.  IN THE SAME
PERIOD, IT MADE RENTAL PAYMENTS TO INVESTOR-TRAILER OWNERS OF $613,021;
MADE PAYMENTS TO GASOLINE STATION OPERATORS OF $118,400; AND INCURRED
ADDITIONAL "OPERATING EXPENSES" OF $668,698. 

THE $613,021 PAID TO TRAILER OWNERS INCLUDED PAYMENTS TO INVESTORS
WHOSE TRAILERS HAD NOT YET BEEN OBTAINED AND PUT INTO THE SYSTEM.  IN
ORDER TO MAKE THE NECESSARY PAYMENTS TO TRAILER OWNERS AND STATION
OPERATORS, RESPONDENT HAD NOT ONLY BORROWED MONEY FROM ITS OFFICERS,
DIRECTORS, AND STOCKHOLDERS BUT ALSO HAD USED FUNDS OBTAINED FOR
PURCHASE OF NEW TRAILERS.  VIRTUALLY ALL THE TRAILERS WERE PURCHASED
FROM AN AFFILIATE IN WHICH RESPONDENT'S OFFICERS AND DIRECTORS HAD
INTERESTS.  MANY OF THESE TRAILERS PROVED DEFECTIVE IN DESIGN OR
OTHERWISE UNSUITABLE FOR RENTAL.  ABOUT A YEAR PRIOR TO THE FILING OF
RESPONDENT'S CHAPTER XI PROCEEDING, THIS MANUFACTURING AFFILIATE BECAME
BANKRUPT, OWING RESPONDENT APPROXIMATELY $200,000 FOR TRAILERS THAT
WERE NEVER MANUFACTURED AND AN ADDITIONAL AMOUNT OF APPROXIMATELY
$150,000 FOR TRAILERS THAT WERE MANUFACTURED BUT NEVER DELIVERED. 
THESE LATTER TRAILERS HAD BEEN MORTGAGED BY THE AFFILIATE TO A THIRD
PARTY WHO TOOK POSSESSION UPON THE AFFILIATE'S BANKRUPTCY.  IN
ADDITION, IN JUNE 1961, SOME 100 TRAILERS, AS TO WHICH RESPONDENT,
ALTHOUGH OBLIGATED BY THE LEASE-BACK ARRANGEMENTS TO DO SO, DID NOT
HAVE INSURANCE COVERAGE, WERE UNLOCATABLE AND CONSIDERED LOST. 
FINALLY, CERTAIN FUNDS RECEIVED FROM INVESTORS FOR THE PURCHASE OF
TRAILERS HAD BEEN, AT AN EARLIER PERIOD, MISAPPROPRIATED BY A MEMBER OR
MEMBERS OF RESPONDENT'S MANAGEMENT.  RESPONDENT'S EXECUTIVE VICE
PRESIDENT, WHO ESTIMATED THIS MISAPPROPRIATION LOSS TO BE AT LEAST
$141,000, ATTRIBUTED IT "ALMOST COMPLETELY" TO A DECEASED MEMBER OF THE
ORIGINAL MANAGEMENT GROUP, BUT DID NOT FEEL "QUALIFIED TO MAKE THE
JUDGMENT" THAT THE TWO REMAINING MEMBERS OF THAT GROUP, INCLUDING ONE
WHO OWNED OVER 15% OF RESPONDENT'S COMMON STOCK, COULD BE HELD LIABLE. 

AT THE TIME OF FILING ITS CHAPTER XI PETITION, RESPONDENT STATED ITS
TOTAL ASSETS AS $685,608, OF WHICH $500,000 REPRESENTED THE STATED
ESTIMATED "VALUE" OF ITS TRAILER-RENTAL SYSTEM, AN INTANGIBLE ASSET. 
IT STATED IN ITS PETITION THAT ITS TRAILER-RENTAL SYSTEM (WHICH THEN
CONSISTED OF ARRANGEMENTS WITH SOME 500 SERVICE STATION OPERATOR
AGENTS) "WAS BUILT BY RESPONDENT AT AN ESTIMATED COST OF $500,000,"
DESPITE THE FACT THAT RESPONDENT'S BALANCE SHEET IN 1961 SHOWED THE
COST OF ESTABLISHING A SYSTEM OF 700 STATIONS AS ONLY $33,750, AND THAT
IN 1961 RESPONDENT HAD ESTIMATED THAT THE COST OF ESTABLISHING AN
ADDITIONAL 800 RENTAL STATIONS WOULD BE ONLY $56,000.  THE TOTAL
LIABILITIES WERE STATED AT $1,367,890, OF WHICH $710,597 WAS OWED TO
TRAILER OWNERS UNDER THEIR LEASING AGREEMENTS; $200,677 WAS OWED TO THE
INVESTORS WHO HAD PAID FOR TRAILERS THAT HAD NEVER BEEN MANUFACTURED;
$71,805 WAS OWED TO TRADE AND OTHER GENERAL CREDITORS; AND $285,277 WAS
OWED TO RESPONDENT'S OFFICERS AND DIRECTORS. 

UNDER THE PROPOSED PLAN OF ARRANGEMENT SUBMITTED BY RESPONDENT THE
INVESTOR-TRAILER OWNERS WERE TO EXCHANGE THEIR ENTIRE INTERESTS (THEIR
RIGHTS IN THE TRAILERS AS WELL AS THE AMOUNTS OWED THEM UNDER THE
RENTAL AGREEMENTS) FOR STOCK OF CAPITOL ON THE BASIS OF ONE SHARE OF
STOCK FOR EACH $2 OF "REMAINING CAPITAL INVESTMENT IN THE TRAILERS,"
WHICH SUM WAS TO BE DETERMINED BY DEDUCTING FROM THE ORIGINAL PURCHASE
PRICE OF THE TRAILERS THE AMOUNT, IF ANY, WHICH THE OWNERS HAD RECEIVED
AS RENTAL PAYMENTS.  (FN5)  RESPONDENT'S OFFICERS AND DIRECTORS, AS
WELL AS TRADE AND OTHER GENERAL CREDITORS, WERE TO RECEIVE ONE SHARE OF
STOCK FOR EACH $3.50 OF THEIR CLAIMS.  RESPONDENT, ITSELF, IN EXCHANGE
FOR TRANSFERRING TO CAPITOL ITS TRAILER-RENTAL SYSTEM, WAS TO RECEIVE
107,000 SHARES WHICH IT WOULD THEN DISTRIBUTE TO ITS STOCKHOLDERS. 
FINALLY, OBLIGATIONS TO TWO BANKS, TOTALING $55,558, ALTHOUGH CLEARLY
UNSECURED, WERE TO BE PAID IN FULL, PRESUMABLY BECAUSE THE OFFICERS AND
DIRECTORS OF RESPONDENT WOULD OTHERWISE HAVE BEEN LIABLE AS GUARANTORS
OF THESE OBLIGATIONS. 

IF THIS PLAN WERE APPROVED AND ALL OF THE INVESTOR-TRAILER OWNERS
PARTICIPATED, A TOTAL OF APPROXIMATELY 866,000 SHARES OF CAPITOL'S
STOCK WOULD BE ISSUED TO THEM, BUT APPROXIMATELY 81,500 SHARES WOULD BE
ISSUED DIRECTLY TO THE OFFICERS AND DIRECTORS OF RESPONDENT, 22,400 TO
TRADE AND OTHER GENERAL CREDITORS, AND 107,000 TO RESPONDENT ITSELF TO
BE DISTRIBUTED TO ITS STOCKHOLDERS.  MORE THAN 60% OF RESPONDENT'S
STOCK WAS HELD BY EIGHT MEN, SEVEN OF WHOM ARE OFFICERS AND DIRECTORS
AND THE EIGHTH ONE OF THE ORIGINAL PROMOTERS OF THE VENTURE. 

THE SEC THEN FILED A MOTION, UNDER SEC. 328 OF THE BANKRUPTCY ACT, TO
DISMISS THE CHAPTER XI PROCEEDING OR, IN EFFECT, TRANSFER IT TO CHAPTER
X ON THE GROUND THAT IT SHOULD HAVE BEEN BROUGHT UNDER CHAPTER X OF THE
BANKRUPTCY ACT AND THUS CHAPTER XI IS NOT AVAILABLE.  A REFEREE IN
BANKRUPTCY TO WHOM, AS A SPECIAL MASTER, THE MOTION WAS REFERRED,
RECOMMENDED THAT IT BE DENIED ON THE GROUNDS THAT THE COMMISSION HAD
NOT MADE "A SUFFICIENT SHOWING TO WARRANT THE GRANTING OF THE SECTION
328 MOTION."  AT HIS HEARING ON THIS MATTER, THE DISTRICT JUDGE
RECOGNIZED THAT, IN LIGHT OF THE FACT THAT THE INVESTOR-TRAILER OWNERS
WERE WIDELY SCATTERED AND THE NATURE OF THEIR INDIVIDUAL HOLDINGS WAS
SMALL, THE PROPOSED PLAN'S ISSUANCE OF APPROXIMATELY 15% OF CAPITOL'S
STOCK TO RESPONDENT'S OFFICERS AND DIRECTORS WOULD MEAN THAT THEY,
RATHER THAN THE INVESTOR-TRAILER OWNERS, WOULD HAVE EFFECTIVE CONTROL
OVER CAPITOL, AND EXPRESSED HIS "DISAPPROVAL" OF SUCH A RESULT.  HE
ALSO EXPRESSED DISAPPROVAL OF PREFERENTIAL TREATMENT OF THE BANKS IN
ORDER TO AVOID THE OBLIGATIONS OF THE OFFICER AND DIRECTOR GUARANTORS. 
(FN6)  THE DISTRICT COURT, HOWEVER, "ACCEPTED AND ADOPTED" THE
REFEREE'S FINDINGS AND DENIED THE MOTION WITHOUT A WRITTEN OPINION. 
THE COURT OF APPEALS AFFIRMED, HOLDING THAT, "SINCE THE GRANTING OF THE
MOTION RESTS IN THE DISCRETION OF THE DISTRICT COURT, WHILE WE THINK
THIS IS A BORDER-LINE CASE, IT DOES NOT APPEAR THAT THE S.E.C. HAS
SHOWN THAT ADEQUATE RELIEF IS NOT OBTAINABLE IN CHAPTER XI PROCEEDINGS
OR THAT THERE HAS BEEN AN ABUSE OF THAT DISCRETION WARRANTING
REVERSAL."  325 F.2D 47, 52.  WE GRANTED CERTIORARI, 376 U.S. 948. 

                    II. 

THE BACKGROUND AND OPERATIVE PROCEDURES OF CHAPTER X AND CHAPTER XI
AND THE INTERRELATIONSHIP BETWEEN THEM HAVE BEEN REVIEWED BY THIS COURT
IN SEC V. UNITED STATES REALTY & IMPROVEMENT CO., 310 U.S. 434, AND
GENERAL STORES CORP. V. SHLENSKY, 350 U.S. 462.  THIS BACKGROUND WAS
DETAILED IN UNITED STATES REALTY, SUPRA, AS FOLLOWS: 

BEFORE PASSAGE, IN 1934, OF SEC. 77B OF THE BANKRUPTCY ACT, 48 STAT.
912, BANKRUPTCY PROCEDURES OFFERED NO FACILITIES FOR CORPORATE
REHABILITATION, WHICH, THEREFORE, WAS LEFT TO EQUITY RECEIVERSHIPS,
WITH THEIR ATTENDANT PARAPHERNALIA OF CREDITORS' AND SECURITY HOLDERS'
COMMITTEES, AND OF RIVAL PLANS OF REORGANIZATION.  LACK OF JUDICIAL
CONTROL OF THE CONDITIONS ATTENDING FORMULATION OF THE PLANS,
INADEQUATE PROTECTION OF WIDELY SCATTERED SECURITY HOLDERS, FREQUENT
ADOPTION OF PLANS WHICH FAVORED MANAGEMENT AT THE EXPENSE OF OTHER
INTERESTS AND WHICH AFFORDED THE CORPORATION ONLY TEMPORARY RESPITE
FROM FINANCIAL COLLAPSE, SO OFTEN CHARACTERISTIC OF EQUITY RECEIVERSHIP
REORGANIZATIONS, LED TO THE ENACTMENT OF SEC. 77B.  SEE S. DOC. NO. 65,
72D CONG., 1ST SESS., 90; H.R. REP. NO. 1409, 75TH CONG., 1ST SESS.,
2.  AS DOES THE PRESENT CHAPTER X, SEC. 77B PERMITTED THE ADJUSTMENT OF
ALL INTERESTS IN THE DEBTOR, SECURED CREDITORS, UNSECURED CREDITORS,
AND STOCKHOLDERS. 

THE DAY PRECEDING THE ENACTMENT OF SEC. 77B, CONGRESS HAD CREATED THE
SECURITIES AND EXCHANGE COMMISSION AS A SPECIAL AGENCY CHARGED WITH THE
FUNCTION OF PROTECTING THE INVESTING PUBLIC, 48 STAT. 885, AS AMENDED,
15 U.S.C. SEC. 78D (1958 ED.).  AT THE URGING OF, AND BASED ON
EXTENSIVE STUDIES BY THE SEC, SEC. 77B WAS, IN 1938, REVISED AND
ENACTED IN CHANGED FORM AS CHAPTER X. 52 STAT. 883-905.  THE AIMS OF
CHAPTER X AS THUS REVISED WERE TO AFFORD GREATER PROTECTION TO
CREDITORS AND STOCKHOLDERS BY PROVIDING GREATER JUDICIAL CONTROL OVER
THE ENTIRE PROCEEDINGS AND IMPARTIAL AND EXPERT ADMINISTRATIVE
ASSISTANCE IN CORPORATE REORGANIZATIONS THROUGH APPOINTMENT OF A
DISINTERESTED TRUSTEE AND THE ACTIVE PARTICIPATION OF THE SEC.  THE
TRUSTEE IN A CHAPTER X PROCEEDING (FN7) IS REQUIRED TO MAKE A THOROUGH
EXAMINATION AND STUDY OF THE DEBTOR'S FINANCIAL PROBLEMS AND
MANAGEMENT, BANKRUPTCY ACT, SECS. 167(3), (5), AND THEN TRANSMIT HIS
INDEPENDENT REPORT TO THE CREDITORS, STOCKHOLDERS, THE SEC, AND
OTHERS.  FOLLOWING THIS, THE TRUSTEE GIVES NOTICE TO ALL CREDITORS AND
STOCKHOLDERS TO SUBMIT TO HIM PROPOSALS FOR A PLAN OF REORGANIZATION. 
SECS. 167(5), (6).  THE TRUSTEE THEN FORMULATES A PLAN OF
REORGANIZATION WHICH HE PRESENTS TO THE COURT.  IF THE COURT FINDS THE
PLAN WORTHY OF CONSIDERATION, IT MAY REFER IT TO THE SEC FOR ITS
OPINION AND MUST SO REFER IT WHERE THE DEBTOR'S LIABILITIES EXCEED
$3,000,000.  SEC 172.  WHEN THE PROPOSED PLAN, AFTER APPROVAL BY THE
COURT, IS FINALLY SUBMITTED TO THE DEBTOR'S CREDITORS AND STOCKHOLDERS,
IT IS ACCOMPANIED BY THE ADVISORY REPORT OF THE SEC, AS WELL AS THE
OPINION OF THE JUDGE WHO APPROVED THE PLAN.  SEC. 175.  AS TO EACH
CLASS OF CREDITORS AND STOCKHOLDERS WHOSE RIGHTS ARE AFFECTED BY THE
PLAN, THE PLAN MUST RECEIVE THE APPROVAL OF THE HOLDERS OF TWO-THIRDS
IN AMOUNT OF EACH CLASS OF CREDITORS' CLAIMS AND, IF THE DEBTOR HAS NOT
BEEN FOUND TO BE INSOLVENT, THE HOLDERS OF A MAJORITY OF EACH CLASS OF
STOCK.  SEC. 179.  THE PLAN BECOMES EFFECTIVE UPON FINAL CONFIRMATION
BY THE COURT, BASED ON A FINDING, INTER ALIA, THAT "THE PLAN IS FAIR
AND EQUITABLE."  SEC. 221.    AS PART OF THE SAME ACT IN WHICH CHAPTER
X WAS ENACTED CONGRESS ALSO, IN 1938, ENACTED CHAPTER XI.  52 STAT. 905
916.  CHAPTER XI IS A STATUTORY VARIATION OF THE COMMON-LAW COMPOSITION
OF CREDITORS AND, UNLIKE THE BROADER SCOPE OF CHAPTER X, IS LIMITED TO
AN ADJUSTMENT OF UNSECURED DEBTS.  IT WAS SPONSORED BY THE NATIONAL
ASSOCIATION OF CREDIT MEN AND OTHER GROUPS OF CREDITORS'
REPRESENTATIVES WHOSE EXPERIENCE HAD BEEN IN REPRESENTING TRADE
CREDITORS IN SMALL AND MIDDLE-SIZED COMMERCIAL FAILURES.  SEE HEARINGS
BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 6439 (REINTRODUCED
AS H.R. 8046 AND ENACTED IN 1938), 75TH CONG., 1ST SESS., 31, 35; 13
J.N.A. REF. BANKR.  17 (1938).  THE CONTRAST BETWEEN THE PROVISIONS OF
CHAPTER X, CAREFULLY DESIGNED TO PROTECT THE CREDITOR AND STOCKHOLDER
INTERESTS INVOLVED, AND THE SUMMARY PROVISIONS OF CHAPTER XI IS QUITE
MARKED.  THE FORMULATION OF THE PLAN OF ARRANGEMENT, AND INDEED THE
ENTIRE CHAPTER XI PROCEEDING, FOR ALL PRACTICAL PRUPOSES IS IN THE
HANDS OF THE DEBTOR, SUBJECT ONLY TO THE REQUISITE CONSENT OF A
MAJORITY IN NUMBER AND AMOUNT OF UNSECURED CREDITORS, SEC. 362, AND THE
ULTIMATE FINDING BY THE COURT THAT THE PLAN IS, INTER ALIA, "FOR THE
BEST INTERESTS OF THE CREDITORS," SEC. 366.  (FN8) "THE PROCESS OF
FORMULATING AN ARRANGEMENT AND THE SOLICITATION OF CONSENT OF
CREDITORS, SACRIFICES TO SPEED AND ECONOMY EVERY SAFEGUARD, IN THE
INTEREST OF THOROUGHNESS AND DISINTERESTEDNESS, PROVIDED IN CHAPTER
X."  UNITED STATES REALTY, SUPRA, AT 450-451.  THE DEBTOR GENERALLY
REMAINS IN POSSESSION AND OPERATES THE BUSINESS UNDER COURT
SUPERVISION, SEC. 342.  A TRUSTEE IS ONLY PROVIDED IN THE VERY LIMITED
SITUATION WHERE A TRUSTEE IN BANKRUPTCY HAS PREVIOUSLY BEEN APPOINTED,
(FN9) SEC. 332.  THERE IS NO REQUIREMENT FOR A RECEIVER, BUT THE COURT
"MAY" APPOINT ONE IF IT FINDS IT TO BE "NECESSARY," SEC. 332.  THE PLAN
OF ARRANGEMENT IS PROPOSED BY, AND ONLY BY, THE DEBTOR, SECS. 306(1),
323, 357, AND CREDITORS HAVE ONLY THE CHOICE OF ACCEPTING OR REJECTING
IT.  ACCEPTANCES MAY BE SOLICITED BY THE DEBTOR EVEN BEFORE FILING OF
THE CHAPTER XI PETITION AND, IN FACT, MUST BE SOLICITED BEFORE COURT
REVIEW OF THE PLAN, SEC. 336(4).  THERE ARE NO PROVISIONS FOR AN
INDEPENDENT STUDY BY THE COURT OR A TRUSTEE, OR FOR ADVICE BY THEM
BEING GIVEN TO CREDITORS IN ADVANCE OF THE ACCEPTANCE OF THE
ARRANGEMENT.  IN SHORT, CAHPTER XI PROVIDES A SUMMARY PROCEDURE WHEREBY
JUDICIAL CONFIRMATION IS OBTAINED ON A PLAN THAT HAS BEEN FORMULATED
AND ACCEPTED WITH ONLY A BARE MINIMUM OF INDEPENDENT CONTROL OR
SUPERVISION.  THIS, OF COURSE, IS CONSISTENT WITH THE BASIC PURPOSE OF
CHAPTER XI: TO PROVIDE A QUICK AND ECONOMICAL MEANS OF FACILITATING
SIMPLE COMPOSITIONS AMONG GENERAL CREDITORS WHO HAVE BEEN DEEMEED BY
CONGRESS TO NEED ONLY THE MINIMAL DISINTERESTED PROTECTION PROVIDED BY
THAT CHAPTER. 

IN ENACTING THESE TWO DISTINCT METHODS OF CORPORATE REHABILITATIONS,
CONGRESS HAS MADE IT QUITE CLEAR THAT CHAPTERS X AND XI ARE NOT
ALTERNATE ROUTES, THE CHOICE OF WHICH IS IN THE HANDS OF THE DEBTOR. 
RATHER, THEY ARE LEGALLY, MUTUALLY EXCLUSIVE PATHS TO ATTEMPTED
FINANCIAL REHABILITATION.  A CAHPTER X PETITION MAY NOT BE FILED UNLESS
"ADEQUATE RELIEF" IS NOT OBTAINABLE UNDER CHAPTER XI, SEC. 146(2). 
LIKEWISE, A CHAPTER XI PETITION IS TO BE DISMISSED, OR IN EFFECT
TRANSFERRED, IF THE PROCEEDINGS "SHOULD HAVE BEEN BROUGHT" UNDER
CHAPTER X, SEC. 328. 

                    III. 

THE SEC HERE CONTENDS THAT, AS AN ABSOLUTE RULE, ALL PROCEEDINGS FOR
THE FINANCIAL REHABILITATION OF A CORPORATE DEBTOR WHICH WOULD ALTER
THE RIGHTS OF PUBLIC INVESTOR CREDITORS MUST BE IN CHAPTER X.
RESPONDENT, ON THE OTHER HAND, CONTENDS THAT THERE IS NO SUCH ABSOLUTE
RULE AND THAT THE DETERMINATION OF WHETHER PROCEEDINGS, ON THE FACTS OF
A PARTICULAR CASE, SHOULD BE IN CHAPTER X OR IN CHAPTER XI RESTS IN THE
DISCRETION OF THE DISTRICT COURT, WHICH DISCRETION SHOULD NOT BE
REVERSED UNLESS IT IS FOUND TO HAVE BEEN CLEARLY ABUSED.  BOTH PARTIES
RELY ON UNITED STATES REALTY, SUPRA, AND GENERAL STORES CORP., SUPRA,
FOR THEIR RESPECTIVE CONTENTIONS. 

UNITED STATES REALTY INVOLVED A CORPORATION WITH PUBLICLY OWNED
DEBENTURES, PUBLICLY OWNED MORTGAGE CERTIFICATES, AND PUBLICLY OWNED
STOCK, WHICH PROPOSED A PLAN OF ARRANGEMENT THAT WOULD HAVE LEFT THE
DEBENTURES AND STOCK UNAFFECTED BUT WOULD HAVE BOTH EXTENDED THE TIME
FOR PAYMENT OF THE PUBLICLY HELD MORTGAGE CERTIFICATES AND REDUCED
THEIR INTEREST RATE.  THE SEC THERE ARGUED THAT CHAPTER X IS THE
EXCLUSIVE AVENUE FOR FINANCIAL REHABILITATION OF LARGE CORPORATIONS
WITH MANY STOCKHOLDERS.  WHILE REJECTING THIS ARGUMENT AS AN ABSOLUTE
MATTER, THE COURT RECOGNIZED THAT "IN GENERAL  ...  THE TWO CHAPTERS
WERE SPECIFICALLY DEVISED TO AFFORD DIFFERENT PROCEDURES, THE ONE
(CHAPTER X) ADAPTED TO THE REORGANIZATION OF CORPORATIONS WITH
COMPLICATED DEBT STRUCTURES AND MANY STOCKHOLDERS, THE OTHER (CHAPTER
XI) TO COMPOSITION OF DEBTS OF SMALL INDIVIDUAL BUSINESS AND
CORPORATIONS WITH FEW STOCKHOLDERS  ...  ."  310 U.S., AT 447.  THE
COURT THEN HELD THAT, AS THE PROPOSED PLAN OF ARRANGEMENT ADVERSELY
AFFECTED THE RIGHTS OF MANY, WIDELY SCATTERED PUBLIC CREDITORS, TO WIT,
THE HOLDERS OF MORTGAGE CERTIFICATES, THE FORMULATION OF A PLAN WITH
THE JUDICIAL CONTROL, STATUTORY SEC PARTICIPATION, AND EMPLOYMENT OF
DISINTERESTED TRUSTEES, ASSURED BY CHAPTER X, WOULD BETTER SERVE "THE
PUBLIC AND PRIVATE INTERESTS CONCERNED INCLUDING THOSE OF THE DEBTOR,"
ID., AT 455, THAN WOULD THE FORMULATION OF A CHAPTER XI PLAN UNDER THE
ALMOST COMPLETE CONTROL OF THE DEBTOR.  IN REACHING THIS RESULT, THE
COURT EXPLORED AT GREAT LENGTH THE SAFEGUARDS OF CHAPTER X AND THEIR
PROTECTION OF PUBLIC INVESTORS: 

"THE BASIC ASSUMPTION OF CHAPTER X AND OTHER ACTS ADMINISTERED BY THE
COMMISSION IS THAT THE INVESTING PUBLIC DISSOCIATED FROM CONTROL OR
ACTIVE PARTICIPATION IN THE MANAGEMENT, NEEDS IMPARTIAL AND EXPERT
ADMINISTRATIVE ASSISTANCE IN THE ASCERTAINMENT OF FACTS, IN THE
DETECTION OF FRAUD, AND IN THE UNDERSTANDING OF COMPLEX FINANCIAL
PROBLEMS."  ID., AT 448-449, N. 6. 

APPLYING THESE PRINCIPLES, THE COURT THEREFORE REVERSED THE COURT OF
APPEALS' AFFIRMANCE OF THE DISTRICT COURT'S REFUSAL TO DISMISS A
CHAPTER XI PROCEEDING WHICH THE SEC HAD CHALLENGED ON THE GROUNDS THAT
IT SHOULD HAVE BEEN BROUGHT UNDER CHAPTER X. 

IT SHOULD BE NOTED THAT, PRIOR TO UNITED STATES REALTY, A BILL HAD
BEEN INTRODUCED IN CONGRESS TO DRAW A NUMERICAL LINE THAT WOULD CLOSE
CHAPTER XI TO ANY CORPORATION WHICH HAD ANY CLASS OF ITS SECURITIES
OWNED BY 100 OR MORE CREDITORS OR STOCKHOLDERS.  SEE HEARING BEFORE
SPECIAL SUBCOMMITTEE ON BANKRUPTCY AND REORGANIZATION OF THE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 9864, 76TH CONG., 3D SESS.  IN
REPORTING OUT THE BILL, THE SUBCOMMITTEE STATED: 

"SECTIONS 4, 5, 6, AND 7 OF THE BILL, WHICH ARE ELIMINATED BY THE
LAST OF YOUR COMMITTEE'S AMENDMENTS, PROVIDED FOR AMENDMENTS TO CHAPTER
XI OF THE BANKRUPTCY ACT WHICH WERE DESIGNED TO PREVENT CORPORATIONS
WHICH ARE PUBLICLY INDEBTED OR OWNED FROM FILING A PETITION FOR AN
ARRANGEMENT UNDER CHAPTER XI, RATHER THAN A PETITION FOR REORGANIZATION
UNDER CHAPTER X, THE CHAPTER SPECIALLY DESIGNED FOR THE REORGANIZATION
OF SUCH CORPORATIONS, AND TO ESTABLISH A NUMERICAL TEST OF SUCH
'PUBLIC' INDEBTEDNESS OR OWNERSHIP. 

"YOUR COMMITTEE BELIEVES THAT, WHILE THE AMENDMENTS PROPOSED BY
REQUIRING THEIR IMMEDIATE PASSAGE HAS BEEN ELIMINATED BY THE DECISION
OF THE UNITED STATES SUPREME COURT IN SECURITIES AND EXCHANGE
COMMISSION V. U.S. REALTY AND IMPROVEMENT COMPANY.  THAT DECISION WAS
RENDERED ON MAY 27, 1940, AFTER THE INTRODUCTION OF THE BILL.  SINCE
IMMEDIATE ACTION ON THESE PROPOSALS DOES NOT APPEAR TO BE NECESSARY,
THE LAST OF YOUR COMMITTEE'S AMENDMENTS PROVIDES FOR THE STRIKING OUT
OF SECTIONS 4, 5, 6, AND 7.  THE COMMITTEE'S CONCLUSION IS SUPPORTED BY
ALL OF THE WITNESSES WHO TESTIFIED AT THE HEARINGS BEFORE THE
COMMITTEE'S SUBCOMMITTEE ON BANKRUPTCY AND REORGANIZATION AND ALSO BY
THE REPORT OF THE SECURITIES AND EXCHANGE COMMISSION ON THE BILL." 
H.R. REP. NO. 2372, 76TH CONG., 3D SESS., 2. 

IN GENERAL STORES CORP. V. SHLENSKY, SUPRA, A CORPORATION WITH OVER
2,000,000 SHARES OF COMMON STOCK, HELD BY OVER 7,000 SHAREHOLDERS, BUT
WITH NO PUBLICLY HELD DEBT OF ANY KIND, PETITIONED UNDER CHAPTER XI FOR
AN ARRANGEMENT OF ITS UNSECURED DEBT, CONSISTING OF OBLIGATIONS TO
TRADE CREDITORS AND ONE PRIVATE INVESTOR.  THE DISTRICT COURT HAD HELD,
WITH THE COURT OF APPEALS AFFIRMING, THAT CHAPTER XI WAS UNAVAILABLE AS
THE DEBTOR NEEDED MORE EXTENSIVE REORGANIZATION THAN MERELY A SIMPLE
ARRANGEMENT WITH UNSECURED CREDITORS.  THIS COURT AFFIRMED.  IN SO
DOING, THE COURT AGAIN REJECTED THE SEC'S ARGUMENT THAT, AS AN ABSOLUTE
MATTER, CHAPTER XI IS NOT AVAILABLE WHERE THE DEBTOR IS PUBLICLY
OWNED. 

THE COURT STATED: 

"IT MAY WELL BE THAT IN MOST CASES WHERE THE DEBTOR'S SECURITIES ARE
PUBLICLY HELD C. X WILL AFFORD THE MORE APPROPRIATE REMEDY.  BUT THAT
IS NOT NECESSARILY SO.  A LARGE COMPANY WITH PUBLICLY HELD SECURITIES
MAY HAVE AS MUCH NEED FOR A SIMPLE COMPOSITION OF UNSECURED DEBTS AS A
SMALLER COMPANY.  AND THERE IS NO REASON WE CAN SEE WHY C. XI MAY NOT
SERVE THAT END.  THE ESSENTIAL DIFFERENCE IS NOT BETWEEN THE SMALL
COMPANY AND THE LARGE COMPANY BUT BETWEEN THE NEEDS TO BE SERVED."  350
U.S., AT 466. 

THE COURT POINTED OUT THAT THE "NEEDS TO BE SERVED" INCLUDED SUCH
FACTORS AS REQUIREMENTS OF FAIRNESS TO PUBLIC DEBT HOLDERS, NEED FOR A
TRUSTEE'S EVALUATION OF AN ACCOUNTING FROM MANAGEMENT OR DETERMINATION
THAT NEW MANAGEMENT IS NECESSARY, AND THE NEED TO READJUST A
COMPLICATED DEBT STRUCTURE REQUIRING MORE THAN A SIMPLE COMPOSITION OF
UNSECURED DEBT.  ID., AT 466-467. 

                                            IV. 

WE AGREE WITH THE PARTIES THAT THE PRINCIPLES OF UNITED STATES REALTY
AND GENERAL STORES APPLY TO AND GOVERN THE RESULT IN THIS CASE.  WE
REAFFIRM THE HOLDINGS OF THESE CASES THAT THERE IS NO ABSOLUTE RULE
THAT CHAPTER X MUST BE UTILIZED IN EVERY CASE IN WHICH THE CORPORATE
DEBTOR IS PUBLICLY OWNED.  AS THIS COURT HAS RECOGNIZED, CONGRESS HAS
DRAWN NO SUCH HARD-AND-FAST LINE BETWEEN THE TWO CHAPTERS.  THE SEC,
PURPORTING TO BOW TO THESE HOLDINGS, URGES IN THIS CASE, HOWEVER, A
VARIATION OF ITS ABSOLUTE-RULE ARGUMENT THAT, WHILE NOT REQUIRING
CHAPTER X IN ALL CASES IN WHICH THE DEBTOR IS PUBLICLY OWNED, WOULD
REQUIRE THE USE OF CHAPTER X IN 100% OF THE CASES INVOLVING THE RIGHTS
OF PUBLIC INVESTOR CREDITORS. 

IT ARGUES, IN SUPPORT OF THIS VARIATION OF ITS ABSOLUTE RULE, THAT TO
HOLD OTHERWISE WOULD DEPRIVE THE INVESTOR CREDITORS OF CHAPTER X'S
PROTECTION OF THE "FAIR AND EQUITABLE" REQUIREMENT OF A PLAN.  AS NOTED
ABOVE, WHEREAS CHAPTER X CONTAINS THE PROVISO THAT A PLAN MUST BE "FAIR
AND EQUITABLE," CHAPTER XI ONLY REQUIRES THAT IT BE "FOR THE BEST
INTERESTS OF THE CREDITORS."  THE WORDS "FAIR AND EQUITABLE" ARE "WORDS
OF ART" WHICH MEAN THAT SENIOR INTERESTS ARE ENTITLED TO FULL PRIORITY
OVER JUNIOR ONES AND, IN PARTICULAR, "THAT IN ANY PLAN OF CORPORATE
REORGANIZATION UNSECURED CREDITORS ARE ENTITLED TO PRIORITY OVER
STOCKHOLDERS TO THE FULL EXTENT OF THEIR DEBTS AND THAT ANY SCALING
DOWN OF THE CLAIMS OF CREDITORS WITHOUT SOME FAIR COMPENSATING
ADVANTAGE TO THEM WHICH IS PRIOR TO THE RIGHTS OF STOCKHOLDERS IS
INADMISSIBLE."  UNITED STATES REALTY, SUPRA, AT 452.  THE SEC'S
ARGUMENT, HOWEVER, IS PREMISED ON THE ASSERTION, FOR WHICH WE CAN FIND
NO SUPPORT IN EITHER THE LANGUAGE OR LEGISLATIVE HISTORY OF CHAPTERS X
AND XI, THAT CONGRESS HAS DEEMED IT NECESSARY IN ALL CASES INVOLVING
PUBLIC INVESTOR CREDITORS THAT THEY HAVE THE PROTECTION OF THE "FAIR
AND EQUITABLE" DOCTRINE.  IN FACT, THE REQUIREMENT THAT A PLAN BE "FAIR
AND EQUITABLE" WAS PART OF CHAPTER XI, AS WELL AS CHAPTER X, UNTIL
1952, WHEN CONGRESS DELETED IT FROM CHAPTER XI AND REPLACED IT WITH THE
REQUIREMENT THAT THE PLAN BE "FOR THE BEST INTERESTS OF THE
CREDITORS."  CONGRESS CLEARLY DEEMED THIS LATTER REQUIREMENT TO BE
SUFFICIENT PROTECTION IN A PROCEEDING PROPERLY IN CHAPTER XI IN LIGHT
OF THE GENERAL PHILOSOPHY OF CHAPTER XI TO EXPEDITE "SIMPLE"
COMPOSITIONS.  SEE S. REP. NO. 1395, 82D CONG., 2D SESS., 10, 11-12;
H.R. REP. NO. 2320, 82D CONG., 2D SESS., 19, 20-21.  THERE IS NO
INDICATION THAT IN SO DOING, CONGRESS INTENDED IN ANY WAY TO CHANGE THE
LAW ON THE INTERRELATIONSHIP BETWEEN CHAPTERS X AND XI.  IN FACT, THE
HISTORY IS JUST THE OPPOSITE.  (FN10)  IN THE SAME ACT THAT DELETED THE
"FAIR AND EQUITABLE" REQUIREMENT FROM CHAPTER XI, CONGRESS EXPRESSLY
CODIFIED, IN SEC. 328, THE RULE OF UNITED STATES REALTY PROVIDING FOR
DISMISSAL, OR, IN EFFECT TRANSFER, OF A CHAPTER XI PROCEEDING IF IT
"SHOULD HAVE BEEN BROUGHT" IN CHAPTER X. NOTHING IN THIS EVEN SUGGESTS
TRANSFER AS AN ABSOLUTE RULE TO GIVE CHAPTER X'S "FAIR AND EQUITABLE"
PROTECTION TO ALL CASES INVOLVING PUBLIC INVESTORS, WHICH PRESUMABLY IF
CONGRESS HAD SO INTENDED, IT WOULD HAVE SO STATED.  MOREOVER, AS NOTED
ABOVE, SUPRA, PP. 608-609, A HOUSE SUBCOMMITTEE PREVIOUSLY APPROVED THE
UNITED STATES REALTY HOLDING OF A GENERAL, BUT NOT ABSOLUTE, RULE, AND
HAD NOT REPORTED OUT A BILL THAT WOULD HAVE DRAWN AN ABSOLUTE LINE. 
(FN11)    THE SEC FURTHER ARGUES THAT CHAPTER X IS REQUIRED IN ALL
CASES INVOLVING PUBLIC INVESTOR CREDITORS, BECAUSE ITS RIGHT TO
INTERVENE IN A CHAPTER XI PROCEEDING IS LIMITED SOLELY TO MOVING UNDER
SEC. 328 FOR A TRANSFER TO CHAPTER X. WE REJECT THIS ARGUMENT.  THE
DISTRICT COURT, IN THIS CASE, QUITE PROPERLY RECOGNIZED THAT THE SEC
WAS NOT SO LIMITED IN A CHAPTER XI PROCEEDING, AND WE HOLD THAT, UNDER
THE STATUTORY SCHEME, WHILE NOT CHARGED WITH EXPRESS STATUTORY RIGHTS
AND RESPONSIBILITIES AS IN CHAPTER X, THE SEC IS ENTITLED TO INTERVENE
AND BE HEARD IN A CHAPTER XI PROCEEDING.  WE THEREFORE REJECT THE SEC'S
VARIATION OF ITS ABSOLUTE-RULE ARGUMENT, ADVANCED IN THIS CASE, THAT
WOULD REQUIRE THE USE OF CHAPTER X IN ALL CASES IN WHICH THE RIGHTS OF
PUBLIC INVESTOR CREDITORS ARE INVOLVED.  THE SHORT ANSWER IS THAT, AS
WITH THE SEC'S ORIGINAL ABSOLUTE-RULE ARGUMENT, CONGRESS HAS DRAWN NO
SUCH ABSOLUTE LINE OF DEMARCATION BETWEEN CHAPTERS X AND XI. 

THIS DOES NOT MEAN, HOWEVER, THAT WE DISAGREE WITH THE HOLDING OF
UNITED STATES REALTY THAT, ALTHOUGH THERE IS NO ABSOLUTE RULE REQUIRING
THAT CHAPTER X BE UTILIZED IN EVERY CASE IN WHICH THE DEBTOR IS
PUBLICLY OWNED, OR EVEN WHERE PUBLICLY HELD DEBT IS ADJUSTED, AS A
GENERAL RULE CHAPTER X IS THE APPROPRIATE PROCEEDING FOR ADJUSTMENT OF
PUBLICLY HELD DEBT.  SEE SEC V. CANANDAIGUA ENTERPRISES CORP., 339 F.2D
14 (C.A.2D CIR.).  NOT ONLY DO WE NOT DISAGREE WITH THIS HOLDING, BUT
WE EXPRESSLY REAFFIRM IT.  (FN12)  PUBLIC INVESTORS ARE, AS HERE,
GENERALLY WIDELY SCATTERED AND ARE FAR LESS LIKELY THAN TRADE CREDITORS
TO BE AWARE OF THE FINANCIAL CONDITION AND CAUSE OF THE COLLAPSE OF THE
DEBTOR.  THEY ARE LESS COMMONLY ORGANIZED IN GROUPS OR COMMITTEES
CAPABLE OF PROTECTING THEIR INTERESTS.  THEY DO NOT HAVE THE SAME
INTEREST AS DO TRADE CREDITORS IN CONTINUING THE BUSINESS RELATIONS
WITH THE DEBTOR.  WHERE DEBT IS PUBLICLY HELD, THE SEC IS LIKELY, AS
HERE, TO HAVE BECOME FAMILIAR WITH THE DEBTOR'S FINANCES, INDICATING
THE DESIRABILITY OF ITS PERFORMING ITS FULL CHAPTER X FUNCTIONS.  IT
SEEMS CLEAR THAT IN ENACTING CHAPTER X CONGRESS HAD THE PROTECTION OF
PUBLIC INVESTORS, AND NOT TRADE CREDITORS, PRIMARILY IN MIND.  AS NOTED
ABOVE, CHAPTER X IS ONE OF MANY ACTS IN WHICH THE SEC HAS THE STATUTORY
RIGHT AND RESPONSIBILITY TO PROTECT PUBLIC INVESTORS.  (FN13)  FINALLY,
AGAIN IT IS CLEAR THAT CONGRESS WAS THINKING OF CHAPTER XI AS PRIMARILY
CONCERNED WITH ADJUSTMENT OF THE RIGHTS OF TRADE CREDITORS WHEN IT
DEEMED THE "FAIR AND EQUITABLE" DOCTRINE TO BE UNNECESSARY TO "SIMPLE"
COMPOSITIONS IN CHAPTER XI.  (FN14) 

GENERAL STORES INDICATES THE NARROW LIMITS WITHIN WHICH THERE ARE
EXCEPTIONS TO THIS GENERAL RULE THAT THE RIGHTS OF PUBLIC INVESTOR
CREDITORS ARE TO BE ADJUSTED ONLY UNDER CHAPTER X. "SIMPLE"
COMPOSITIONS ARE STILL TO BE EFFECTED UNDER CHAPTER XI.  SUCH A
SITUATION, EVEN WHERE PUBLIC DEBT IS DIRECTLY AFFECTED MAY EXIST, FOR
EXAMPLE, WHERE THE PUBLIC INVESTORS ARE FEW IN NUMBER AND FAMILIAR WITH
THE OPERATIONS OF THE DEBTOR, OR WHERE, ALTHOUGH THE PUBLIC INVESTORS
ARE GREATER IN NUMBER, THE ADJUSTMENT OF THEIR DEBT IS RELATIVELY
MINOR, CONSISTING, FOR EXAMPLE, OF A SHORT EXTENSION OF TIME FOR
PAYMENT. 

ON THE OTHER HAND, GENERAL STORES ALSO MAKES IT CLEAR THAT EVEN
THOUGH THERE MAY BE NO PUBLIC DEBT MATERIALLY AND DIRECTLY AFFECTED,
CHAPTER X IS STILL THE APPROPRIATE PROCEEDING WHERE THE DEBTOR HAS
WIDESPREAD PUBLIC STOCKHOLDERS AND THE PROTECTIONS OF THE PUBLIC AND
PRIVATE INTERESTS INVOLVED AFFORDED BY CHAPTER X ARE REQUIRED BECAUSE,
FOR EXAMPLE, THERE IS EVIDENCE OF MANAGEMENT MISDEEDS FOR WHICH AN
ACCOUNTING MIGHT BE MADE, THERE IS A NEED FOR NEW MANAGEMENT, OR THE
FINANCIAL CONDITION OF THE DEBTOR REQUIRES MORE THAN A SIMPLE
COMPOSITION OF ITS UNSECURED DEBTS. 

APPLYING THE ABOVE PRINCIPLES, IT IS OBVIOUS THAT CHAPTER X IS THE
APPROPRIATE PROCEEDING FOR THE ATTEMPTED REHABILITATION OF RESPONDENT
IN THIS CASE.  HERE PUBLIC DEBTS ARE BEING ADJUSTED.  THE INVESTORS ARE
MANY AND WIDESPREAD, NOT FEW IN NUMBER INTIMATELY CONNECTED WITH THE
DEBTOR, AND THE ADJUSTMENT IS QUITE MAJOR AND CERTAINLY NOT MINOR. 
THESE FACTS ALONE WOULD REQUIRE CHAPTER X PROCEEDINGS UNDER THE ABOVE
STATED PRINCIPLES.  IN ADDITION THERE IS HERE, AS WE HAVE PREVIOUSLY
POINTED OUT, SUBSTANTIAL EVIDENCE OF MISAPPROPRIATION OF ASSETS, AND
NOT ONLY IS THERE A NEED FOR A COMPLETE CORPORATE REORGANIZATION, BUT
IT IS OBVIOUS THAT THE PROPOSED PLAN OF ARRANGEMENT IS JUST THAT.  THE
TRAILER OWNERS ARE EXCHANGING THEIR ENTIRE INTERESTS, INCLUDING A SALE
OF THEIR TRAILERS, IN EXCHANGE FOR STOCK IN A NEW CORPORATION, IN WHICH
OTHER CREDITORS OF RESPONDENT, INCLUDING RESPONDENT'S OFFICERS AND
DIRECTORS, AS WELL AS RESPONDENT ITSELF WILL HAVE SUBSTANTIAL
INTERESTS.  INDEED, THIS IS THE SAME COMPLETE REORGANIZATION, EXCEPT
THAT THE PLAN HERE GIVES THE PUBLIC INVESTOR CREDITORS EVEN LESS THAN
WAS PREVIOUSLY OFFERED, SEE NOTE 5, SUPRA, THAT THE SEC PREVIOUSLY
STOPPED AS A PUBLIC OFFERING ON THE GROUNDS THAT THE OFFERING MATERIAL
CONTAINED FALSE AND MISLEADING INFORMATION.  THE COURT OF APPEALS
ITSELF RECOGNIZED, 325 F.2D, AT 53, "THAT IF THE STOCK INVOLVED HERE
WERE NOT PART OF AN ARRANGEMENT, THE DISCLOSURES MADE WITH REGARD TO IT
IN SOLICITING THE TRAILER OWNERS' CONSENTS TO THE PLAN WOULD BE CLEARLY
INADEQUATE.  NO AUTHORITY HAS BEEN FOUND WHICH WOULD INDICATE THAT
RECIPIENTS OF STOCK ISSUED IN CONNECTION WITH AN ARRANGEMENT ARE NOT
ENTITLED TO AS MUCH INFORMATION AS ARE THOSE PERSONS ACQUIRING STOCK
UNDER ORDINARY CONDITIONS."  WE AGREE. 

INDEED, THE FACTS OF THIS CASE APTLY DEMONSTRATE THE NEED FOR CHAPTER
X PROTECTION AS A GENERAL RULE ON THE ABOVE-STATED PRINCIPLES.  THERE
IS CLEARLY A NEED FOR A STUDY BY A DISINTERESTED TRUSTEE TO MAKE A
THOROUGH EXAMINATION OF RESPONDENT'S FINANCIAL PROBLEMS AND MANAGEMENT
AND SUBMIT A FULL REPORT TO THE PUBLIC-INVESTOR CREDITORS.  RESPONDENT
HAS NEVER OPERATED PROFITABLY, HAS ALWAYS BEEN IN PRECARIOUS FINANCIAL
CONDITION, AND APPARENTLY WAS HOPELESSLY INSOLVENT, IN BOTH THE
BANKRUPTCY AND EQUITY SENSE, WHEN THE ARRANGEMENT WAS PROPOSED.  AT AN
EARLIER PERIOD, ITS MANAGEMENT APPARENTLY MISAPPROPRIATED SUBSTANTIAL
CORPORATE FUNDS.  MOST OF THE TRAILERS WERE PURCHASED FROM AN
AFFILIATED COMPANY; A LARGE NUMBER OF THEM, ALTHOUGH PAID FOR, WERE
EITHER NOT MANUFACTURED OR, IF MANUFACTURED, WERE NOT DELIVERED.  THE
AFFILIATED COMPANY IS BANKRUPT.  ONLY APPROXIMATELY TWO-THIRDS OF THE
$3,587,439 CONTRIBUTED BY THE PUBLIC INVESTORS FOR THE PURCHASE OF
TRAILERS WAS USED FOR THAT PURPOSE; THE BALANCE APPARENTLY HAVING BEEN
DRAINED OFF IN HIGH COMMISSIONS TAKEN BY THE MANAGEMENT ON THE SALE OF
THE TRAILERS TO THE PUBLIC.  PORTIONS OF THESE COMMISSIONS ON NEW
TRAILER SALES WERE, IN TURN, USED BY THE MANAGEMENT TO PAY PRIOR
PURCHASERS OF TRAILERS THE RENTALS WHICH THEY HAD BEEN PROMISED.  WHEN
RESPONDENT FILED ITS PETITION FOR AN ARRANGEMENT, ITS STATED
LIABILITIES OF $1,367,890 WERE APPROXIMATELY DOUBLE ITS STATED ASSETS
OF $685,608; WITH EVEN MOST OF THE LATTER ($500,000) REPRESENTING THE
ALLEGED "ESTIMATED" VALUE OF THE TRAILER-RENTAL SYSTEM, I.E., THE
DEBTOR'S ARRANGEMENTS WITH THE SERVICE STATION OPERATORS.  THE DISTRICT
COURT ITSELF RECOGNIZED THAT "THERE MAY BE IN THIS SITUATION NEED FOR
NEW MANAGEMENT, AND THERE CERTAINLY IS SOME QUESTION ...  AS TO WHETHER
OR NOT THE MANAGEMENT THAT IS PRESENTLY  ...  OPERATING IT, WOULD
CONTINUE TO DO SO FOR THE BEST INTERESTS OF THE INVESTORS."  IT DID NOT
FIND, HOWEVER, THAT CHAPTER X WAS NECESSARY SINCE THIS NEED FOR NEW
MANAGEMENT HAD "NOT BEEN CLEARLY ESTABLISHED YET."  ONE OF THE PURPOSES
OF CHAPTER X IS TO GIVE THE INDEPENDENT TRUSTEE THE OPPORTUNITY TO
CONDUCT A SEARCHING INQUIRY SO AS TO "CLEARLY ESTABLISH" WHETHER OR NOT
NEW MANAGEMENT IS NECESSARY, WHEN THERE IS, AS HERE, A SUBSTANTIAL
BASIS FOR SUCH A BELIEF.  SEE GENERAL STORES, SUPRA, AT 466.  FINALLY,
IT IS CLEAR THAT THERE IS NEED FOR AN INDEPENDENT INVESTIGATION OF
POSSIBLE CAUSES OF ACTION AGAINST THE PAST AND PRESENT MANAGEMENT OF
RESPONDENT, AND IT IS AS TRUE NOW AS WHEN CHAPTER X WAS ENACTED, THAT
"A DEBTOR IN POSSESSION CANNOT BE EXPECTED TO INVESTIGATE ITSELF." 
HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 6439, 75TH
CONG., 1ST SESS., 176 (MY BROTHER DOUGLAS THEN TESTIFYING AS CHAIRMAN
OF THE SEC). 

RESPONDENT, HOWEVER, CONTENDS THAT CHAPTER X IS NOT HERE APPROPRIATE
AS THE TIME AND EXPENSE INVOLVED IN SUCH A PROCEEDING WOULD BE TOO
GREAT.  THIS IS, HOWEVER, JUST ANOTHER WAY OF STATING THE NATURAL
PREFERENCE OF A DEBTOR'S MANAGEMENT FOR THE "SPEED AND ECONOMY" OF
CHAPTER XI, TO THE "THOROUGHNESS AND DISINTERESTEDNESS" OF CHAPTER X.
IN THIS AREA, AS WITH OTHER STATUTES DESIGNED TO PROTECT THE INVESTING
PUBLIC, (FN15) CONGRESS HAS MADE THE DETERMINATION THAT THE
DISINTERESTED PROTECTION OF THE PUBLIC INVESTOR OUTWEIGHTS THE SELF
INTEREST "NEEDS" OF CORPORATE MANAGEMENT FOR SO-CALLED "SPEED AND
ECONOMY."  IN FACT, EXPERIENCE IN THIS AREA HAS CONFIRMED THE VIEW OF
CONGRESS THAT THE THOROUGHNESS AND DISINTERESTEDNESS ASSURED BY CHAPTER
X NOT ONLY RESULT IN GREATER PROTECTION FOR THE INVESTING PUBLIC, BUT
OFTEN IN GREATER ULTIMATE SAVINGS FOR ALL INTERESTS, PUBLIC AND
PRIVATE, THAN DO THE SO-CALLED "SPEED AND ECONOMY" OF CHAPTER XI.  SEE
TWENTY-EIGHT ANNUAL REPORT OF THE SEC 98 (1963); TWENTY-NINTH ANNUAL
REPORT OF THE SEC 90-91 (1964); NOTE, 69 HARV. L. REV. 352, 357-360
(1955).  MOREOVER, THE REQUIREMENTS OF CHAPTER X ARE THEMSELVES
SUFFICIENTLY FLEXIBLE SO THAT THE DISTRICT COURT CAN ACT TO KEEP
EXPENSES WITHIN PROPER BOUNDS AND INSURE EXPEDITION IN THE
PROCEEDINGS.  (FN16)  WE ALSO REJECT RESPONDENT'S FURTHER ARGUMENT THAT
THE TIME AND EXPENSE OF A CHAPTER X PROCEEDING WOULD BE SO GREAT THAT
THE ULTIMATE RESULT MIGHT BE STRAIGHT BANKRUPTCY LIQUIDATION, WHICH,
RESPONDENT CONTENDS, "WOULD MEAN PROBABLE TOTAL LOSS FOR THE TRAILER
OWNERS."  IN ADDITION TO THE ABOVE ANSWERS TO RESPONDENT'S GENERAL-TIME
AND EXPENSE ARGUMENT, WE FEEL COMPELLED TO POINT OUT, WITHOUT
INDICATING ANY OPINION AS TO THE ULTIMATE OUTCOME OF THE ATTEMPTED
FINANCIAL REHABILITATION IN THIS CASE, THAT IT MUST BE RECOGNIZED THAT
CHAPTERS X AND XI WERE NOT DESIGNED TO PROLONG - WITHOUT GOOD REASON
AND AT THE EXPENSE OF THE INVESTING PUBLIC - THE CORPORATE LIFE OF
EVERY DEBTOR SUFFERING FROM TERMINAL FINANCIAL ILLS.  SEE FIDELITY
ASSURANCE ASSN. V. SIMS, 318 U.S. 608.  (FN17)

FINALLY, RESPONDENT ARGUES THAT THE DISTRICT COURT'S DECISION THAT
CHAPTER XI WAS THE APPROPRIATE PROCEEDING HERE SHOULD BE AFFIRMED ON
THE BASIS THAT IT WAS NOT A CLEAR ABUSE OF DISCRETION.  RESPONDENT
RELIES ON CERTAIN LANGUAGE IN THE GENERAL STORES OPINION IN SUPPORT OF
THIS CONTENTION.  HOWEVER, IN MAKING THIS CONTENTION IT CLEARLY
MISREADS THAT OPINION AND MISCONCEIVES ITS HOLDING AND IMPORT.  NOTHING
IN THAT OPINION SUPPORTS RESPONDENT'S VIEW THAT THE ISSUE OF WHETHER
CHAPTER X OR CHAPTER XI IS REQUIRED PERMITS OPEN-ENDED DISCRETION BY A
DISTRICT COURT TO DECIDE ON A CASE-BY-CASE BASIS, WITHOUT RELIANCE ON
THE PRINCIPLES WHICH WE HAVE HERE REAFFIRMED, WHETHER IN ITS OPINION IT
WOULD BE BETTER FOR A PARTICULAR DEBTOR TO BE IN CHAPTER X OR CHAPTER
XI.  (FN18)  WE AGREE WITH THE STATEMENT OF THE COURT OF APPEALS FOR
THE SECOND CIRCUIT IN A RECENT DECISION THAT SUCH OPEN-ENDED DISCRETION
WOULD BE BOUND TO RESULT IN DECISIONS REFLECTING THE "PARTICULAR
EXPERIENCE AND PREDILECTIONS" OF THE DISTRICT JUDGE INVOLVED.  SEC V.
CANANDAIGUA ENTERPRISES CORP., SUPRA, AT 19.  "THE CONSEQUENCE,
PARTICULARLY IN A MULTIJUDGE DISTRICT, WOULD BE THAT THE SUBSTANTIAL
RIGHTS OF THE PARTIES WOULD DEPEND ON THE ACCIDENT OF THE CALENDAR - IN
DEFIANCE OF THE MEMORABLE ADMONITION, 'IT WILL NOT DO TO DECIDE THE
SAME QUESTION ONE WAY BETWEEN ONE SET OF LITIGANTS AND THE OPPOSITE WAY
BETWEEN ANOTHER,' CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 33
(1921)."  IBID.  WE THEREFORE ALSO REJECT THIS CONTENTION OF
RESPONDENT.  (FN19) 

APPLYING THE ABOVE-STATED PRINCIPLES, IT IS CLEAR THAT IN THIS CASE
THE MOTION BY THE SEC TO DISMISS, OR, IN EFFECT, TO TRANSFER THE
PROCEEDINGS TO CHAPTER X, SHOULD HAVE BEEN GRANTED.  (FN20) THEREFORE,
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE REMANDED
TO THAT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  REVERSED
AND REMANDED. 

FN1  "THE JUDGE MAY, UPON APPLICATION OF THE SECURITIES AND EXCHANGE
COMMISSION OR ANY PARTY IN INTEREST, AND UPON SUCH NOTICE TO THE
DEBTOR, TO THE SECURITIES AND EXCHANGE COMMISSION, AND TO SUCH OTHER
PERSONS AS THE JUDGE MAY DIRECT, IF HE FINDS THAT THE PROCEEDINGS
SHOULD HAVE BEEN BROUGHT UNDER CHAPTER 10 OF THIS TITLE, ENTER AN ORDER
DISMISSING THE PROCEEDINGS UNDER THIS CHAPTER, UNLESS, WITHIN SUCH TIME
AS THE JUDGE SHALL FIX, THE PETITION BE AMENDED TO COMPLY WITH THE
REQUIREMENT OF CHAPTER 10 OF THIS TITLE FOR THE FILING OF A DEBTOR'S
PETITION OR A CREDITORS' PETITION UNDER SUCH CHAPTER, BE FILED.  UPON
THE FILING OF SUCH AMENDED PETITION, OR OF SUCH CREDITORS' PETITION,
AND THE PAYMENT OF SUCH ADDITIONAL FEES AS MAY BE REQUIRED TO COMPLY
WITH SECTION 532 OF THIS TITLE, SUCH AMENDED PETITION OR CREDITORS'
PETITION SHALL THEREAFTER, FOR ALL PURPOSES OF CHAPTER 10 OF THIS
TITLE, BE DEEMED TO HAVE BEEN ORIGINALLY FILED UNDER SUCH CHAPTER." 

FN2  RESPONDENT WAS ORIGINALLY ONE OF A GROUP OF INTERRELATED
COMPANIES THAT LATER MERGED INTO IT; FOR SIMPLICITY WE HAVE CONSIDERED
IT AS ONE COMPANY THROUGHOUT ITS HISTORY. 

FN3  ALTHOUGH THE OVERWHELMING MAJORITY OF THE AGREEMENTS ARE OF THIS
TYPE, THEY VARY FROM 2% TO 3% PER MONTH AND FROM 5 TO 10 YEARS.  A FEW
PROVIDE FOR A FLAT 35% OF THE RENTAL DERIVED FROM THE TRAILERS
INVOLVED.    FN4  SEE REGULATION A (17 CFR SEC. 230.251 ET SEQ.),
PROMULGATED PURSUANT TO THE SECURITIES ACT OF 1933, SEC. 3(A), 48 STAT.
75, 15 U.S.C. SEC. 77CA) (1958 ED.). 

FN5  THIS IS, OF COURSE, LESS THAN THE EXCHANGE THAT CAPITOL HAD
OFFERED SOME MONTHS EARLIER UNDER THE EXEMPTION FROM REGISTRATION WHICH
HAD BEEN SUSPENDED, SINCE THERE TRAILER OWNERS HAD BEEN OFFERED ONE
SHARE OF STOCK FOR EACH $2 THAT THEY HAD PAID WITH NO DEDUCTIONS FOR SO
CALLED "RETURN OF CAPITAL."  SEE SUPRA, P. 599. 

FN6  FOLLOWING THIS HEARING, THE PLAN WAS THEN MODIFIED TO PROVIDE
THAT RESPONDENT'S OFFICERS AND DIRECTORS WOULD RECEIVE ONE SHARE OF
CAPITOL STOCK FOR EACH $5.50, INSTEAD OF EACH $3.50, OF THEIR CLAIMS,
WITH THIS STOCK HAVING LIMITED VOTING, DIVIDEND AND LIQUIDATION RIGHTS
FOR FIVE YEARS, AND THAT THE BANKS WOULD BE TREATED IN THE SAME MANNER
AS RESPONDENT'S OTHER GENERAL CREDITORS. 

FN7  WHERE THE DEBTOR'S LIABILITIES ARE LESS THAN THE MINIMAL SUM OF
$250,000, A SITUATION CLEARLY NOT PRESENT HERE, CHAPTER X PERMITS, BUT
DOES NOT REQUIRE, THE COURT TO APPOINT A TRUSTEE. 

FN8  ORIGINALLY CHAPTER XI, AS WELL AS CHAPTER X, REQUIRED THAT THE
PLAN BE "FAIR AND EQUITABLE."  THAT REQUIREMENT OF CHAPTER XI WAS
CHANGED TO THE ONE STATED IN THE TEXT IN 1952.  SEE INFRA, P. 611. 

FN9  THIS COULD ONLY OCCUR WHEN THE CHAPTER XI PROCEEDING HAD BEEN
FILED BY A DEBTOR ALREADY IN STRAIGHT BANKRUPTCY PROCEEDINGS.  SEE SEC.
321; 8 COLLIER, BANKRUPTCY, 587-588 (1964 ED.). 

FN10  THIS, OF COURSE, ALSO ANSWERS RESPONDENT'S ARGUMENT THAT
CONGRESS, BY DELETING THE "FAIR AND EQUITABLE" REQUIREMENT FROM CHAPTER
XI, HAS SOMEHOW OVERTURNED THE HOLDING AND PRINCIPLES OF UNITED STATES
REALTY.  SEE ALSO INFRA, P. 614. 

FN11  THIS, OF COURSE, DOES NOT MEAN THAT CHAPTER X'S GREATER
PROTECTION FOR PUBLIC INVESTOR CREDITORS IN THIS REGARD, AS WELL AS
PROTECTIONS OF GREATER JUDICIAL CONTROL, A DISINTERESTED TRUSTEE, AND
FULL STATUTORY SEC PARTICIPATION, IS IRRELEVANT IN DETERMINING WHETHER,
AS A GENERAL RULE, CHAPTER X OR CHAPTER XI WOULD BETTER SERVE THE
"PUBLIC AND PRIVATE INTERESTS INVOLVED," CF. GENERAL STORES, SUPRA, AT
466.  SEE INFRA, P. 614. 

FN12  WHILE SOMETIMES EXPRESSING DIFFERENT RATIONALES FOR THEIR
CONCLUSIONS IT IS CLEAR THAT THE COURTS OF APPEALS HAVE RECOGNIZED THE
GENERAL RULE STATED ABOVE.  SEE SEC V. CANANDAIGUA ENTERPRISES CORP.,
SUPRA; SEC V. CRUMPTON BUILDERS, INC., 337 F.2D 907 (C.A. 5TH CIR.);
SEC V. LIBERTY BAKING CORP., 240 F.2D 511 (C.A.2D CIR.); MECCA TEMPLE
V. DARROCK, 142 F.2D 869 (C.A.2D CIR.); CF. GRAYSON-ROBINSON STORES,
INC. V. SEC, 320 F.2D 940 (C.A.2D CIR.); SEC V. WILCOX-GAY CORP., 231
F.2D 859 (C.A. 6TH CIR.); IN RE TRANSVISION, INC. 217 F.2D 243 (C.A.2D
CIR.).  SEE ALSO IN RE BARCHRIS CONSTRUCTION CORP., 223 F. SUPP. 229
(D.C.S.D.N.Y.); IN RE HEROLD RADIO & ELECTRONICS CORP., 191 F. SUPP.
780 (D.C.S.D.N.Y.). 

FN13  E.G., SECURITIES ACT OF 1933, 48 STAT. 74, AS AMENDED, 15
U.S.C. SEC. 77A ET SEQ. (1958 ED.); SECURITIES EXCHANGE ACT OF 1934, 48
STAT. 881, AS AMENDED, 15 U.S.C. SEC. 78A ET SEQ. (1958 ED.). 

FN14  SEE H.R. REP. NO. 2320, 82D CONG., 2D SESS., 21; S. REP. NO.
1395, 82D CONG., 2D SESS., 11-12.  CF. UNITED STATES REALTY, SUPRA, AT
454. 

FN15  SEE NOTE 13, SUPRA. 

FN16  THE COURT HAS, FOR EXAMPLE, A MEASURE OF CONTROL OVER THE
AMOUNT OF WORK PERFORMED BY THE TRUSTEE, SEC. 167, AND MUST APPROVE THE
FEES OF ALL PARTICIPANTS IN THE PROCEEDINGS, SECS. 241-250. 

FN17  BOTH CHAPTERS X AND XI ARE DESIGNED AS VEHICLES FOR POSSIBLE
FINANCIAL REHABILITATION.  CHAPTER X EXPLICITLY REQURIES THAT A
PETITION BROUGHT UNDER IT MUST BE DISMISSED IF IT HAS NOT BEEN BROUGHT
IN "GOOD FAITH."  SEC. 141.  "GOOD FAITH" IS DEFINED SO AS TO EXCLUDE
FROM CHAPTER X THOSE CASES, INTER ALIA, WHERE "IT IS UNREASONABLE TO
EXPECT THAT A PLAN OF REORGANIZATION CAN BE EFFECTED."  SEC. 146(3). 
SUCH A SITUATION WOULD EXIST WHERE THE DEBTOR IS SO HOPELESSLY
INSOLVENT THAT STRAIGHT BANKRUPTCY LIQUIDATION IS THE ONLY AVAILABLE
EXPEDIENT.  FIDELITY ASSURANCE ASSN. V. SIMS, SUPRA; GOODMAN V.
MICHAEL, 280 F.2D 106, 108 (C.A. 1ST CIR.); 6 COLLIER, BANKRUPTCY,
PARA. 6.09 (1964).  CHAPTER XI HAS A PROVISION THAT A PLAN CANNOT BE
CONFIRMED UNLESS IT IS "FOR THE BEST INTERESTS OF THE CREDITORS AND IS
FEASIBLE."  SEC. 366(2).  THIS PROVISION HAS BEEN CONSTRUED TO PRECLUDE
CONFIRMATION OF A PLAN OF ARRANGEMENT WHERE THE PLAN WOULD PAY THE
CREDITORS SUBSTANTIALLY LESS THAN THEY MIGHT REASONABLY EXPECT TO
REALIZE IN LIQUIDATION.  SEE IN RE BRUCE HUNT CORP., 163 F. SUPP. 939
(D.C.N.D.N.Y.); 9 COLLIER, BANKRUPTCY, PARA. 9.17 (1964). 

FN18  RESPONDENT RELIES ON LANGUAGE WHEREIN, AFTER POINTING OUT THAT
IT "WAS THE VIEW OF TWO LOWER COURTS" THAT THE DEBTOR THERE "MAY WELL
NEED A MORE THOROUGHGOING CAPITAL READJUSTMENT THAN IS POSSIBLE UNDER
C. XI," 350 U.S., AT 468, MR. JUSTICE DOUGLAS STATED, FOR THE COURT:
"WE COULD REVERSE THEM ONLY IF THEIR EXERCISE OF DISCRETION TRANSCENDED
THE ALLOWABLE BOUNDS.  WE CANNOT SAY THAT IT DOES.  RATHER WE THINK
THAT THE LOWER COURTS TOOK A FAIR READING OF C. X AND THE FUNCTIONS IT
SERVES AND REASONABLY CONCLUDED THAT THIS BUSINESS NEEDED A MORE
PERVASIVE REORGANIZATION THAN IS AVAILABLE UNDER C. XI."  IBID.  IT IS
CLEAR IN THE CONTEXT OF THAT CASE THAT THE DISCRETIONARY ISSUE THERE
REFERRED TO WAS NOT DISCRETION TO DETERMINE THE RULES GOVERNING THE
ISSUE OF WHETHER CHAPTER X OR CHAPTER XI IS APPROPRIATE, OR WHETHER
THESE RULES SHOULD BE APPLIED IN ALL CASES, BUT RATHER MERELY THE
FACTUAL QUESTION OF WHETHER OR NOT THAT PARTICULAR DEBTOR NEEDED A MORE
PERVASIVE REORGANIZATION THAN A SIMPLE COMPOSITION UNDER CHAPTER XI. 

FN19  RESPONDENT'S FURTHER ARGUMENT THAT CHAPTER XI STILL IS
APPROPRIATE SINCE THE PLAN, DESPITE ITS CLEAR TERMS, DOES NOT ADVERSELY
AFFECT THE TRAILER OWNERS BECAUSE EACH OF THEM CAN REMOVE HIS TRAILER
AT WILL IS ALSO WITHOUT MERIT.  FIRST, AS NOTED ABOVE, CHAPTER X WOULD
BE REQUIRED HERE EVEN IF THERE WERE NO INVESTOR-CREDITORS.  SECOND, THE
ARGUMENT THAT THE PLAN IS VOLUNTARY IGNORES THE FACT THAT THE INVESTORS
WERE NOT PURCHASING TRAILERS BUT WERE INVESTING IN THE CORPORATION. 
FINALLY, SOME TRAILERS WERE NEVER MANUFACTURED, OTHERS ARE MISSING, AND
THE REMAINDER ARE SCATTERED AT GASOLINE STATIONS THROUGHOUT THE WESTERN
PART OF THE UNITED STATES.  IT CANNOT SERIOUSLY BE CONTENDED THAT THIS
RIGHT TO FIND A TRAILER THAT WAS NOT INTENDED TO BE PURCHASED MAKES THE
PLAN A COMPLETELY VOLUNTARY ONE. 

FN20  IN SO HOLDING, WE INDICATE NO OPINION AS TO WHETHER OR NOT A
CHAPTER X REORGANIZATION WOULD BE APPROPRIATE IN THIS CASE.  SEE NOTE
17, SUPRA.  WE MERELY HOLD THAT ALL ISSUES RELEVANT TO THE POSSIBLE
FINANCIAL REHABILITATION OF RESPONDENT MUST HERE BE DETERMINED WITHIN
THE CONFINES OF A CHAPTER X, RATHER THAN A CHAPTER XI, PROCEEDING.  SEE
UNITED STATES REALTY, SUPRA, AT 453; 9 COLLIER, SUPRA, AT PARA. 9.17. 
..END :























FORTSON V. TOOMBS 379 U.S. 621 


NO. 300.  ARGUED NOVEMBER 18-19, 1964 - DECIDED JANUARY 18, 1965 -
DECREE VACATED IN PART AND REMANDED. 


AFTER HOLDING THE GEORGIA LEGISLATURE TO BE MALAPPORTIONED THE
DISTRICT COURT ENJOINED APPELLANT ELECTION OFFICIALS FROM PLACING ON
THE 1964 BALLOT OR SUBSEQUENT BALLOTS, UNTIL THE GENERAL ASSEMBLY IS
PROPERLY APPORTIONED, THE QUESTION OF ADOPTING A NEW STATE
CONSTITUTION.  APPELLEES SUGGESTED THAT THE ISSUE WAS MOOT.  HELD:
THIS PART OF THE DECREE IS VACATED AND REMANDED TO THE DISTRICT COURT
TO CONSIDER THE PRESENT NEED FOR THE INJUNCTION. 

FORTSON, SECRETARY OF STATE OF GEORGIA, ET AL. V. TOOMBS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

PER CURIAM. 

THE DISTRICT COURT, HAVING HELD THAT THE GEORGIA LEGISLATURE WAS
MALAPPORTIONED (TOOMBS V. FORTSON, 205 F. SUPP. 248), ENJOINED
APPELLANTS, ELECTION OFFICIALS, "FROM PLACING ON THE BALLOT TO BE USED
IN THE GENERAL ELECTION TO BE HELD ON NOVEMBER 3, 1964, OR AT ANY
SUBSEQUENT ELECTION UNTIL THE GENERAL ASSEMBLY IS REAPPORTIONED IN
ACCORDANCE WITH CONSTITUTIONAL STANDARDS, THE QUESTION WHETHER A
CONSTITUTIONAL AMENDMENT PURPORTING TO AMEND THE PRESENT STATE
CONSTITUTION BY SUBSTITUTING AN ENTIRELY NEW CONSTITUTION THEREFOR
SHALL BE ADOPTED."* APPELLANTS CHALLENGE THAT PROVISION ON THE MERITS. 
APPELLEES, WHILE DEFENDING IT ON THE MERITS, SUGGEST ALTERNATIVELY THAT
THE ISSUE HAS BECOME MOOT. 

*THE ENTIRE PARAGRAPH READS AS FOLLOWS: 

"THE DEFENDANTS ARE HEREBY ENJOINED FROM PLACING ON THE BALLOT TO BE
USED IN THE GENERAL ELECTION TO BE HELD ON NOVEMBER 3, 1964, OR AT ANY
SUBSEQUENT ELECTION UNTIL THE GENERAL ASSEMBLY IS REAPPORTIONED IN
ACCORDANCE WITH CONSTITUTIONAL STANDARDS, THE QUESTION WHETHER A
CONSTITUTIONAL AMENDMENT PURPORTING TO AMEND THE PRESENT STATE
CONSTITUTION BY SUBSTITUTING AN ENTIRELY NEW CONSTITUTION THEREFOR
SHALL BE ADOPTED; PROVIDED, HOWEVER, NOTHING IN THIS ORDER SHALL
PREVENT THE SUBMISSION OF AMENDMENTS TO THE CONSTITUTION OF THE STATE
OF GEORGIA WHICH ARE SEPARATE AS TO SUBJECT MATTER, IN ACCORDANCE WITH
ARTICLE XIII, SECTION I, ARTICLE 1, OF THE CONSTITUTION OF THE STATE OF
GEORGIA, 1945.  (SEE HAMMOND V. CLARKE, 136 GA. 313, FOR A DISCUSSION
BY THE GEORGIA SUPREME COURT OF WHAT CONSTITUTES SEPARATE AMENDMENTS). 
NOR SHALL ANYTHING IN THIS ORDER PREVENT THE CALLING BY THE GENERAL
ASSEMBLY OF A 'CONVENTION OF THE PEOPLE TO REVISE, AMEND OR CHANGE THE
CONSTITUTION' IF THE REPRESENTATION 'IN THE CONVENTION IS BASED ON
POPULATION AS NEAR AS PRACTICABLE' WITH THE MEMBERS BEING ELECTED BY
THE PEOPLE (SEE ARTICLE XIII, SECTION I, ARTICLE 2).  CONSTITUTION OF
THE STATE OF GEORGIA, 1945." 

THE SITUATION HAS CHANGED SOMEWHAT SINCE THE 1964 ELECTION, AS BOTH
THE SENATE AND THE HOUSE HAVE NEW MEMBERS, AND APPELLEES, FOR WHOSE
BENEFIT THE CHALLENGED PROVISION WAS ADDED, SAY IT IS NOW HIGHLY
SPECULATIVE AS TO WHAT THE 1965 LEGISLATURE WILL DO AND SUGGEST THE
PARAGRAPH IN QUESTION BE VACATED AS MOOT. 

WE VACATE THIS PART OF THE DECREE AND REMAND TO THE DISTRICT COURT,
TO WHOM WE GIVE A WIDE RANGE IN MOULDING A DECREE (UNITED STATES V.
CRESCENT AMUSEMENT CO., 323 U.S. 173, 185; INTERNATIONAL BOXING CLUB V.
UNITED STATES, 358 U.S. 242, 253), FOR RECONSIDERATION OF THE
DESIRABILITY AND NEED FOR THE ON-GOING INJUNCTION IN LIGHT OF THE
RESULTS OF THE 1964 ELECTION AND THE REPRESENTATIONS OF APPELLEES.  IT
IS SO ORDERED. 

MR. JUSTICE CLARK, CONCURRING. 

ALTHOUGH I WOULD PREFER TO DECLARE THIS LITIGATION MOOT AND VACATE
THE JUDGMENT BELOW, I AM JOINING THE OPINION AND JUDGMENT OF THE COURT
SOLELY ON THE BASIS THAT IT IS NOT REACHING THE MERITS REGARDING THE
PROPRIETY OF THE ORDER FASHIONED BY THE THREE-JUDGE DISTRICT COURT.  IN
MY VIEW, THE COURT IS SIMPLY VACATING AND REMANDING IN ORDER TO GIVE
THE DISTRICT COURT AN OPPORTUNITY TO RECONSIDER ITS ORDER IN LIGHT OF
THE CHANGE IN CIRCUMSTANCES WHICH HAS OCCURRED SINCE JUDGMENT WAS
ENTERED. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE STEWART JOINS, CONCURRING
IN PART AND DISSENTING IN PART. 

THIS IS THE FIRST TIME THAT THE COURT, AFTER PLENARY BRIEFING AND
ARGUMENT, HAS BEEN CALLED ON TO CONSIDER THE PROPRIETY OF INTERIM
ARRANGEMENTS PRESCRIBED BY A DISTRICT COURT PENDING THE EFFECTUATION OF
ITS DECISION REQUIRING REAPPORTIONMENT OF A BRANCH OF A STATE
LEGISLATURE. 

AFTER HOLDING THAT THE HOUSE OF REPRESENTATIVES OF THE GENERAL
ASSEMBLY OF GEORGIA WAS UNCONSTITUTIONALLY COMPOSED, A DECISION WHICH
IS NOT CALLED INTO QUESTION ON THIS APPEAL, THE THREE-JUDGE DISTRICT
COURT ORDERED:  (1) THAT THE ELCTION IN 1964 OF THE LEGISLATURE TO
SERVE IN 1965 (THE 1965 LEGISLATURE) MIGHT PROCEED UNDER THE STATE'S
EXISTING METHODS OF APPORTIONMENT; (2) THAT UNTIL A PROPERLY
APPORTIONED LEGISLATURE TOOK OFFICE NO OTHER LEGISLATURE COULD PROPOSE
TO THE ELECTORATE, EXCEPT THROUGH THE CALLING OF A CONVENTION OF
POPULARLY ELECTED DELEGATES, THE ADOPTION OF A NEW STATE CONSTITUTION;
AND (3) THAT (EXCEPT FOR REAPPORTIONMENT LEGISLATION) THE 1965 HOUSE
SHOULD BE "LIMITED," NOTWITHSTANDING ANY PROVISION OF STATE LAW, "TO
THE ENACTMENT OF SUCH LEGISLATION AS SHALL PROPERLY COME BEFORE THE
SAID LEGISLATURE DURING THE REGULAR 1965 45-DAY SESSION" PROVIDED BY
GEORGIA LAW.  AFTER THE STATE'S APPEAL WAS FILED IN THIS COURT THIS
LAST PROVISION WAS IN EFFECT ABROGATED BY THE DISTRICT COURT WITH THE
APPROVAL OF THE PARTIES.  (FN1) 

THIS APPEAL DRAWS IN QUESTION THE VALIDITY OF ITEMS (2) AND (3)
ABOVE, SIMILARLY NUMBERED IN THE DISTRICT COURT'S ORDER.  IT IS
CONTENDED BY THE APPELLEES, HOWEVER, THAT BOTH THESE ISSUES HAVE NOW
BECOME MOOT. 

                                              I. 

THE COURT'S DISPOSITION OF THIS CASE, OF COURSE, INVOLVES A HOLDING
THAT AT LEAST AS TO ITEM (2) THE CASE IS NOT MOOT.  FOR, CONTRARY TO
WHAT MY BROTHER GOLDBERG SAYS IN HIS DISSENTING OPINION (POST, PP. 636
638) AND AS MY BROTHER CLARK SEEMS TO RECOGNIZE (ANTE), THE COURT DOES
NOT REMAND THE CASE TO THE DISTRICT COURT FOR A DETERMINATION ON THE
ISSUE OF MOOTNESS, BUT ONLY TO DECIDE WHETHER ANY INJUNCTIVE RELIEF IS
NOW APPROPRIATE IN LIGHT OF WHAT HAS TRANSPIRED SINCE SUCH RELIEF WAS
FIRST GRANTED. 

WHILE IT MAY BE THAT THE COURT'S IMPLICIT HOLDING ON MOOTNESS DOES
NOT REACH BEYOND THE PORTION OF THE DISTRICT COURT'S DECREE THAT GOES
TO THE SUBMISSION OF A PROPOSED NEW STATE CONSTITUTION (PAR. (2) OF THE
DECREE), I WOULD ALSO HOLD NOT MOOT THE PRONOUNCEMENT OF THAT DECREE
PLACING LIMITATIONS ON THE FUNCTIONING OF THE 1965 STATE LEGISLATURE
(ORIGINAL PAR. (3) OF THE DECREE). 

AS TO PARAGRAPH (2), IT IS SUFFICIENT TO SAY THAT THE INJUNCTION HAS
CONTINUING EFFECT, NOT ONLY WITH RESPECT TO THE 1965 LEGISLATURE, BUT
ALSO AS TO ANY SUCCESSOR LEGISLATURE IF IT IS FOUND TO BE
"MALAPPORTIONED."  ANY ALLEGED "SPECULATIVENESS" AS TO WHETHER A NEW
STATE CONSTITUTION MAY BE PROPOSED TO THE ELECTORATE BEFORE A
"CONSTITUTIONAL" LEGISLATURE COMES INTO BEING, GOES NOT TO MOOTNESS BUT
ONLY TO THE QUESTION WHETHER THE DISTRICT COURT (ASSUMING ITS POWER IN
THE PREMISES, SEE BELOW) SHOULD HAVE GRANTED ANY RELIEF ON THIS SCORE. 
(FN2)  SO FAR AS ORIGINAL PARAGRAPH (3) OF THE DECREE IS CONCERNED
(LIMITING THE ACTIVITIES OF THE 1965 LEGISLATURE) IT WAS NOT RENDERED
MOOT BY THE DISTRICT COURT'S MODIFICATION AFTER THE CASE HAD BEEN TAKEN
FOR REVIEW BY THIS COURT.  ANALYTICALLY, THE SITUATION IS TANTAMOUNT TO
A CONFESSION OF ERROR AT THIS LEVEL, AT MOST RELIEVING THIS COURT OF
THE NECESSITY OF MAKING A DEFINITIVE EXPOSITION OF ITS VIEWS ON THIS
SUBJECT (COMPARE THE SUGGESTION OF MY BROTHER GOLDBERG, POST, PP. 638
639), BUT NOT DEPRIVING THE QUESTION OF THE ATTRIBUTE OF
JUSTICIABILITY.  CF. YOUNG V. UNITED STATES, 315 U.S. 257, 258-259. 

THE POSITION ADOPTED BY THE COURT IS THAT ALTHOUGH THE CASE IS NOT
MOOT, AT LEAST AS TO THE "CONSTITUTION-SUBMISSION" ISSUE, DECISION OF
THAT QUESTION COULD BE AVOIDED IF THE DISTRICT COURT CHOSE TO VACATE
THAT PART OF ITS INJUNCTION IN LIGHT OF THE CIRCUMSTANCE WHICH HAS MADE
THE NEED FOR SUCH RELIEF SPECULATIVE; THE COURT THEREFORE REMANDS THE
CASE TO AFFORD THE DISTRICT COURT THAT OPPORTUNITY.  I DO NOT THINK
THAT SUCH AVOIDANCE AS TO EITHER QUESTION IS CALLED FOR IN THIS CASE. 
THE COURT'S REAPPORTIONMENT DECISIONS HAVE PRESSED DISTRICT COURTS ONTO
AN UNCHARTED AND HIGHLY SENSITIVE FIELD OF FEDERAL-STATE RELATIONS WITH
LITTLE MORE TO GUIDE THEM THAN THE ELUSIVE "ONE-PERSON-ONE-VOTE"
APHORISM.  DISTRICT COURTS, AS COURTS OF FIRST INSTANCE, MUST
NECESSARILY FASHION REMEDIES FOR THEMSELVES, AND THE PASSAGE OF TIME
AND THE VARIETY OF REMEDIES CHOSEN BY THEM MAY ULTIMATELY HELP THIS
COURT TO WIND ITS WAY THROUGH THIS TREACHEROUS CONSTITUTIONAL TERRAIN. 
BUT IT IS ESSENTIAL THAT THE LOWER COURTS AT LEAST BE LAUNCHED IN THE
RIGHT GENERAL DIRECTION AND NOT ALLOWED TO RANGE SO FAR AFIELD AS TO
HAMSTRING STATE LEGISLATURES AND DEPRIVE STATES OF EFFECTIVE
LEGISLATIVE GOVERNMENT.  PARAGRAPHS (2) AND (3) OF THE INJUNCTION
INVOLVED IN THIS CASE DO RANGE THAT FAR AFIELD.  ABSENT DISAPPROVAL BY
THIS COURT, THE DECISION BELOW, RENDERED BY A DISTINGUISHED PANEL,
CANNOT FAIL TO FURNISH A STRONG PRACTICAL, IF NOT LEGAL, PRECEDENT FOR
OTHER DISTRICT COURTS.   I DO NOT THINK THIS SHOULD BE ALLOWED TO
HAPPEN. 

                          II. 

I WOULD HOLD THE DECREE BELOW IMPROVIDENT IN BOTH THE ASPECTS BEFORE
US. 

AS TO THE PROVISION FORBIDDING SUBMISSION TO THE ELECTORATE OF A
LEGISLATIVELY PROPOSED NEW STATE CONSTITUTION, I CAN FIND NOTHING IN
THE FOURTEENTH AMENDMENT, ELSEWHERE IN THE CONSTITUTION, OR IN ANY
DECISION OF THIS COURT WHICH REQUIRES A STATE TO INITIATE COMPLETE OR
PARTIAL CONSTITUTIONAL CHANGE ONLY BY SOME METHOD IN WHICH EVERY VOICE
IN THE VOTING POPULATION IS GIVEN AN OPPORTUNITY TO EXPRESS ITSELF. 
CAN THERE BE THE SLIGHTEST CONSTITUTIONAL DOUBT THAT A STATE MAY LODGE
THE POWER TO INITIATE CONSTITUTIONAL CHANGES IN ANY SELECT BODY IT
PLEASES, SUCH AS A COMMITTEE OF THE LEGISLATURE, A GROUP OF
CONSTITUTIONAL LAWYERS, OR EVEN A "MALAPPORTIONED" LEGISLATURE -
PARTICULARLY ONE WHOSE COMPOSITION WAS CONSIDERED, PRIOR TO THIS
COURT'S REAPPORTIONMENT PRONOUNCEMENTS OF JUNE 15, 1964, TO BE ENTIRELY
AND SOLELY A MATTER OF STATE CONCERN?  (FN3) 

SIMILARLY AS TO THE PROVISION OF THE LOWER COURT'S ORIGINAL DECREE
LIMITING THE FUNCTIONS OF THE 1965 LEGISLATURE, IT SEEMS SCARCELY OPEN
TO SERIOUS DOUBT THAT SO LONG AS THE FEDERAL COURTS ALLOW THIS GEORGIA
LEGISLATURE TO SIT, IT MUST BE REGARDED AS THE DE FACTO LEGISLATURE OF
THE STATE, POSSESSING THE FULL PANOPLY OF LEGISLATIVE POWERS ACCORDED
BY GEORGIA LAW. 

I THINK THAT THE STATE OF GEORGIA IS ENTITLED TO A CLEAR-CUT
PRONOUNCEMENT FROM THIS COURT THAT NOTHING IN ITS REAPPORTIONMENT
DECISIONS CONTEMPLATED SUCH UNHEARD-OF FEDERAL COURT INTRUSION INTO
STATE POLITICAL AFFAIRS AS THE DECREE BEFORE US EVINCES.  BEYOND THAT,
FOR THIS COURT TO TEMPORIZE WITH IMPORTANT INTERSTITIAL MATTERS OF THIS
KIND, DEEPLY AFFECTING THE EVEN COURSE OF FEDERAL-STATE RELATIONS, CAN
ONLY SERVE TO AGGRAVATE THE CONFUSION WHICH LAST JUNE'S REAPPORTIONMENT
CASES HAVE LEFT IN THEIR WAKE.  (FN4) 

I WOULD MODIFY THE DECREE BELOW BY STRIKING THEREFROM PARAGRAPH (2)
AND APPROVING THE SUBSTITUTE FOR ORIGINAL PARAGRAPH (3) AS FRAMED BY
THE DISTRICT COURT. 

FN1  THE FULL TEXT OF THE DISTRICT COURT'S ORDER AND THE AMENDMENT OF
ITEM 3 ARE PRINTED IN THE DISSENTING OPINION OF MR. JUSTICE GOLDBERG AS
APPENDICES A AND B, RESPECTIVELY.  POST, PP. 639, 641. 

FN2  SEE LABOR BOARD V. PENNSYLVANIA GREYHOUND LINES, INC., 303 U.S.
261, 271; SOUTHERN PAC. TERMINAL CO. V. INTERSTATE COMMERCE COMM'N, 219
U.S. 498, 514-515. 

FN3  IF, AS I BELIEVE, A STATE IS NOT FEDERALLY RESTRICTED IN ITS
CHOICE OF MEANS FOR INITIATING CONSTITUTIONAL CHANGE, THE QUESTION OF
WHETHER, UNDER GEORGIA LAW, THE PROPOSED NEW GEORGIA CONSTITUTION
SHOULD HAVE BEEN INITIATED BY A POPULARLY ELECTED CONVENTION INSTEAD OF
BY THE LEGISLATURE IS NOT A MATTER FOR FEDERAL COGNIZANCE. 

FN4  TO HOLD AS I THINK THE COURT SHOULD ON THESE ISSUES WOULD NOT IN
ANY WAY IMPAIR THE FEDERAL COURTS' ABILITY TO PREVENT FRUSTRATION OF
THEIR REAPPORTIONMENT DECREES.   MR. JUSTICE GOLDBERG, DISSENTING. 

I DISSENT FROM THE COURT'S DISPOSITION OF THIS CASE.  BY REMANDING,
THE COURT IS, IN EFFECT, ASKING THE DISTRICT COURT TO DECIDE WHETHER
THIS APPEAL, WHICH IS PENDING BEFORE US AND WITH RESPECT TO WHICH WE
NOTED PROBABLE JURISDICTION AND HEARD ARGUMENT, SHOULD BE DISMISSED AS
MOOT DUE TO EVENTS OCCURRING AFTER THE APPEAL HAD BEEN PERFECTED IN
THIS COURT.  MOOTNESS, IN MY VIEW, IS A QUESTION WHICH, UNDER THESE
CIRCUMSTANCES, THIS COURT HAS THE RESPONSIBILITY TO DECIDE.  THE FACTS
RELEVANT TO THIS ISSUE ARE UNDISPUTED.  THE DISTRICT COURT IS IN NO
BETTER POSITION TO RESOLVE THE ISSUE OF MOOTNESS THAN WE.  NO
LEGITIMATE PURPOSE IS SERVED BY ASKING IT TO DETERMINE A QUESTION WHICH
IS PROPERLY BEFORE US AND WHICH A LONG LINE OF UNBROKEN PRECEDENTS
WOULD HAVE US DECIDE.  (FN1)  MOREOVER, IF THE CASE IS MOOT, AS I
BELIEVE, THERE IS NO NEED FOR A FURTHER TIME-CONSUMING HEARING BELOW
AND A POSSIBLE FUTURE SECOND APPEAL TO THIS COURT.  SURELY BOTH THE
DISTRICT COURT AND THIS COURT HAVE ENOUGH TO DO WITHOUT THIS COURT
CREATING UNNECESSARY WORK FOR BOTH.  I WOULD SIMPLY VACATE THE
INJUNCTION ORDER AND DISMISS THIS APPEAL AS MOOT. 

THAT THIS CASE IS IN FACT MOOT BECOMES APPARENT FROM A CONSIDERATION
OF THE HISTORY OF THIS LITIGATION. 

THE APPEAL CALLS INTO QUESTION THE VALIDITY OF PORTIONS OF AN
INJUNCTION ISSUED BY A THREE-JUDGE DISTRICT COURT INVOLVING THE
REAPPORTIONMENT OF THE GEORGIA HOUSE OF REPRESENTATIVES.  THE DISTRICT
COURT ENTERED AN ORDER ON JUNE 30, 1964, HOLDING THAT THE GEORGIA HOUSE
OF REPRESENTATIVES WAS UNCONSTITUTIONALLY APPORTIONED UNDER THE FEDERAL
CONSTITUTION AND DECLARING INVALID STATE CONSTITUTIONAL AND STATUTORY
APPORTIONMENT PROVISIONS.  THE COURT'S ORDER ALLOWED THE NOVEMBER 1964
ELECTIONS FOR THE HOUSE OF REPRESENTATIVES TO TAKE PLACE UNDER THE THEN
EXISTING CONSTITUTIONAL AND STATUTORY PROVISIONS, BUT IT REQUIRED THAT
NEW ELECTIONS BE HELD IN 1965 IN TIME FOR A PROPERLY APPORTIONED
LEGISLATURE TO TAKE OFFICE NO LATER THAN "THE SECOND MONDAY IN JANUARY,
1966."  PARAGRAPH (2) OF THE COURT'S ORDER FURTHER ENJOINED APPELLANTS,
STATE ELECTION OFFICIALS, FROM PLACING ON THE NOVEMBER 1964 ELECTION
BALLOT A NEW STATE CONSTITUTION PROPOSED BY THE THEN-EXISTING
UNCONSTITUTIONALLY APPORTIONED LEGISLATURE, AND IT ALSO ENJOINED THE
SUBMISSION OF A WHOLLY NEW CONSTITUTION TO THE VOTERS BY THE
LEGISLATURE "AT ANY SUBSEQUENT ELECTION UNTIL THE LEGISLATURE  ...  IS
REAPPORTIONED IN ACCORDANCE WITH CONSTITUTIONAL STANDARDS."  PARAGRAPH
(3) OF THE DISTRICT COURT'S ORDER LIMITED THE POWER OF THE 1965
LEGISLATURE TO ENACTING "SUCH LEGISLATION AS SHALL PROPERLY COME BEFORE
IT  ...  DURING THE REGULAR 1965 45-DAY SESSION."  APPELLANTS' MOTION
FOR A STAY OF THE DISTRICT COURT'S ORDER WAS DENIED BY MR. JUSTICE
BLACK ON JULY 6, 1964.  (FN2) 

APPELLANTS APPEALED TO THIS COURT.  IN THEIR JURISDICTIONAL STATEMENT
THEY DID NOT CONTEST THE BASIC HOLDING THAT THE HOUSE OF
REPRESENTATIVES WAS UNCONSTITUTIONALLY APPORTIONED.  THEY CHALLENGED
THE VALIDITY OF PORTIONS OF PARAGRAPHS (2) AND (3) OF THE DISTRICT
COURT'S ORDER.  (FN3)  APPELLEES MOVED TO AFFIRM ON THE GROUND THAT THE
ORDER WAS IN ALL RESPECTS VALID.  WE NOTED PROBABLE JURISDICTION, 379
U.S. 809, AND GRANTED APPELLANTS' MOTION TO ADVANCE THE CAUSE FOR ORAL
ARGUMENT. 

SHORTLY PRIOR TO ARGUMENT, APPELLEES MOVED THAT THIS APPEAL BE
DISMISSED BECAUSE EVENTS SUPERVENING SINCE THE ENTRY OF THE DISTRICT
COURT'S ORDER RENDERED THIS APPEAL MOOT.  APPELLANTS OPPOSED THIS
MOTION.  CONSIDERATION OF APPELLEES' MOTION TO DISMISS WAS POSTPONED
UNTIL THE HEARING. 

UPON ARGUMENT OF THIS CASE IT APPEARED WITHOUT DISPUTE THAT, SINCE
THE ENTRY OF THE ORDER BELOW, THE PARTIES HAD AGREED UPON MODIFICATIONS
WHICH ELIMINATED APPELLANTS' OBJECTIONS TO PARAGRAPH (3) OF THE
DISTRICT COURT'S ORDER AND THAT THE DISTRICT COURT, ON NOVEMBER 3,
1964, HAD ENTERED AN ORDER EMBODYING THE AGREED-UPON MODIFICATIONS. 
(FN4)  IT LIKEWISE WAS AGREED AT THE ARGUMENT THAT THE NEW CONSTITUTION
PROPOSED BY THE LEGISLATURE WAS NOT SUBMITTED TO THE VOTERS IN NOVEMBER
1964 AND THAT UNDER GEORGIA LAW IT HAS LAPSED AND CANNOT BE
RESUBMITTED.  THUS THE ONLY ISSUE REMAINING IN THIS CASE IS THE
VALIDITY OF THAT PORTION OF THE DISTRICT COURT'S ORDER WHICH PREVENTS
THE NEWLY ELECTED OR ANY FUTURE UNCONSTITUTIONALLY APPORTIONED
LEGISLATURE FROM PROPOSING AND SUBMITTING TO THE VOTERS A WHOLLY NEW
STATE CONSTITUTION. 

APPELLEES IN THEIR MOTION TO DISMISS AND AT THE ARGUMENT STATED THAT
ALTHOUGH THEY ORIGINALLY SOUGHT AFFIRMANCE OF THE PORTION OF THE
DISTRICT COURT'S ORDER NOW UNDER CONSIDERATION, THEY NO LONGER DO SO
BECAUSE, DUE TO SUPERVENING EVENTS, IT IS NOW "HIGHLY SPECULATIVE" AS
TO WHETHER THE NEWLY ELECTED LEGISLATURE (FN5) OR ANY FUTURE
UNCONSTITUTIONALLY APPORTIONED LEGISLATURE WILL EVER SUBMIT ANOTHER
WHOLLY NEW CONSTITUTION TO THE VOTERS.  APPELLEES STATE THAT
CONSEQUENTLY THEY NO LONGER NEED THE PROTECTION GIVEN THEM BY THE
DISTRICT COURT'S PROHIBITION OF SUCH A SUBMISSION, AND THAT "THIS
APPEAL PRESENTS ONLY AN ABSTRACT, HYPOTHETICAL CONTROVERSY IN WHICH THE
'LIVELY CONFLICT BETWEEN ANTAGONISTIC DEMANDS, ACTIVELY PRESSED, WHICH
MAKE RESOLUTION OF THE CONTROVERTED ISSUE A PRACTICAL NECESSITY' IS
LACKING."  (FN6)  THEY SUGGEST THAT FOR THESE REASONS CONTROVERSY OVER
THIS PORTION OF THE ORDER HAS NOW BECOME MOOT AND URGE THAT THE APPEAL
BE DISMISSED AND THAT THIS PORTION OF THE ORDER BE VACATED.  APPELLANTS
RESIST THE MOTION TO DISMISS ON GROUNDS OF MOOTNESS.  THEY CONTEND THAT
THIS COURT SHOULD REACH THE MERITS AND REVERSE THE BASIC DETERMINATION
OF THE DISTRICT COURT THAT UNDER THE FEDERAL CONSTITUTION A
MALAPPORTIONED LEGISLATURE IS WITHOUT POWER TO PROPOSE A NEW
CONSTITUTION TO THE VOTERS.  (FN7)  THEY ARGUE THAT A DECISION ON THE
MERITS IS CALLED FOR BECAUSE THE ISSUANCE OF THE PRIOR OPINION OF THE
DISTRICT COURT GRANTING THE INJUNCTION WILL HAVE A PRECEDENTIAL AND
DETERRENT EFFECT, NOTWITHSTANDING THE VACATION OF THE INJUNCTION
ORDER. 

AS THIS HISTORY SHOWS, THE APPEAL, IN ITS PRESENT POSTURE, IS PLAINLY
MOOT UNDER LONG-ESTABLISHED PRINCIPLES AND PRECEDENTS.  THE QUESTION
APPELLANTS WOULD HAVE US DECIDE IS ONE OF GRAVE IMPORT INVOLVING THE
POWER UNDER THE FEDERAL CONSTITUTION OF A MALAPPORTIONED LEGISLATURE TO
SUBMIT A STATE CONSTITUTION TO A POPULAR VOTE - A QUESTION WHICH
NECESSARILY INVOLVES A CONSIDERATION OF THE VARYING SYSTEMS USED IN
DIFFERENT STATES FOR PROPOSING CONSTITUTIONAL AMENDMENTS.  THE DOCTRINE
OF "MOOTNESS," LIKE THE RELATED DOCTRINE OF "RIPENESS," HAS BEEN
EVOLVED BY THIS COURT SO THAT IT WILL NOT HAVE TO PASS UPON THIS TYPE
OF QUESTION EXCEPT UPON THE URGING OF ONE WHO IS HARMED OR IS CURRENTLY
THREATENED WITH HARM CAUSED BY THE ALLEGEDLY UNCONSTITUTIONAL ACTION. 
SEE STEARNS V. WOOD, 236 U.S. 75.  WHILE THIS COURT CANNOT AND WILL NOT
AVOID ITS CONSTITUTIONAL RESPONSIBILITY TO DECIDE APPORTIONMENT CASES
ARISING WHEN JUSTICIABLE PROBLEMS ARE PRESENTED AND PRESSED FOR
DECISION BY LITIGANTS CLAIMING AN ABRIDGMENT OF THEIR CONSTITUTIONAL
RIGHTS, (FN8) IT SHOULD NOT, IN APPORTIONMENT CASES, AS IN OTHER AREAS,
DECIDE MOOT ISSUES, VOLUNTEER JUDGMENTS OR SEEK OUT QUESTIONS WHICH
HAVE CEASED TO BE RIPE FOR ADJUDICATION (FN9) AND ARE NO LONGER
PRESENTED IN THE CONTEXT OF AN ACTUAL PENDING CONTROVERSY.  (FN10)  I
STRONGLY, ALBEIT RESPECTFULLY, DISAGREE WITH MY BROTHER HARLAN'S
INTIMATION, GROUNDED ON HIS BASIC VIEW THAT THE COURT SHOULD NEVER HAVE
ENTERED INTO REAPPORTIONMENT MATTERS AT ALL, THAT NOW THAT IT HAS BEEN
DECIDED THAT SUCH ISSUES ARE JUSTICIABLE, THIS COURT SHOULD BE MORE
WILLING IN THIS "SENSITIVE" AREA THAN IN OTHER AREAS, TO GIVE OPINIONS
OF AN ADVISORY NATURE, SO THAT "THE LOWER COURTS WILL AT LEAST BE
LAUNCHED IN THE RIGHT GENERAL DIRECTION AND NOT ALLOWED TO RANGE SO FAR
AFIELD."  OPINION OF MR. JUSTICE HARLAN, ANTE, P. 625.  MOREOVER, IT
HAS ALREADY BEEN DEMONSTRATED, AS WAS EASILY PREDICTABLE FROM THE
HISTORY OF OTHER CONSTITUTIONAL ISSUES OF A "SENSITIVE" NATURE, THAT
THERE IS IN THIS AREA AMPLE OPPORTUNITY TO GUIDE THE LOWER COURTS
WITHIN THE TRADITIONAL BOUNDS OF CONCRETE LIVE CONTROVERSIES, ACTIVELY
PRESSED BY REAL ADVERSE PARTIES.  SEE FORTSON V. DORSEY, ANTE, P. 433;
SCRANTON V. DREW, ANTE, P. 40. 

THIS COURT DOES NOT PASS UPON CONSTITUTIONAL QUESTIONS UNLESS IT IS
NECESSARY TO DO SO TO PRESERVE THE RIGHTS OF THE PARTIES.  SEE
LIVERPOOL, N.Y.&P.S.S. CO. V. COMMISSIONERS, 113 U.S. 33, 39; ASHWANDER
V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 341, 345-348 (CONCURRING
OPINION OF MR. JUSTICE BRANDEIS); COFFMAN V. BREEZE CORPS., 323 U.S.
316, 325.  NOR DOES IT DECIDE ABSTRACT QUESTIONS MERELY BECAUSE OF THE
EFFECT SUCH JUDGMENTS MIGHT HAVE UPON FUTURE ACTION IN SIMILAR
CIRCUMSTANCES.  LITTLE V. BOWERS, 134 U.S. 547, 558; CALIFORNIA V. SAN
PABLO & T.R. CO., 149 U.S. 308, 314; KIMBALL V. KIMBALL, 174 U.S. 158. 
IN THE PRESENT CASE WE ARE TOLD BY THE PROPONENTS OF THE INJUNCTION
THAT THERE EXISTS ONLY A REMOTE POSSIBILITY THAT THE NEWLY ELECTED
LEGISLATURE OR SOME FUTURE ONE WILL SUBMIT A WHOLLY NEW CONSTITUTION TO
THE VOTERS.  CF. BUS EMPLOYEES V. MISSOURI, 374 U.S. 74, 78.  IF THE
QUESTION OF THE LEGISLATURE'S POWER TO PROPOSE SUCH A CONSTITUTION WERE
BEING SUBMITTED TO A COURT AS AN INITIAL MATTER, THE SPECULATIVENESS OF
THE LEGISLATURE'S FUTURE CONDUCT WOULD UNDOUBTEDLY RENDER THIS ISSUE
UNRIPE FOR ADJUDICATION.  SEE NEW JERSEY V. SARGENT, 269 U.S. 328;
ARIZONA V. CALIFORNIA, 283 U.S. 423; ELECTRIC BOND & SHARE CO. V. SEC,
303 U.S. 419, 443; ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325
U.S. 450, 471; UNITED STATES V. HARRISS, 347 U.S. 612.  THE
SPECULATIVENESS, WHICH HAS ARISEN IN THIS CASE SINCE THE ORDER WAS
ENTERED, MAKES THE ISSUE IN THIS APPEAL, IN MY VIEW, SIMILARLY
UNSUITABLE FOR ADJUDICATION.  UNITED STATES V. ALASKA S.S. CO., 253
U.S. 113. 

THE APPELLEES THEMSELVES, IN WHOSE FAVOR THE JUDGMENT BELOW HAS RUN,
DO NOT ASSERT THE NEED FOR THE PROTECTION OF THE DISTRICT COURT'S ORDER
AGAINST FUTURE SUBMISSION OF A NEW CONSTITUTION; THEY DEEM THE
POSSIBILITY OF SUCH A SUBMISSION TOO REMOTE.  THEY THEREFORE ARE
AGREEABLE TO THE VACATION OF THE INJUNCTION WHICH THEY SOUGHT AND
OBTAINED.  THIS OBVIOUSLY WILL RELIEVE APPELLANTS OF ANY BURDEN WHICH
THE INJUNCTION IMPOSES UPON THEM.  IT ALSO WILL REMOVE ANY PRECEDENTIAL
EFFECT OF THE OPINION OF THE DISTRICT COURT ON THIS ISSUE.  UNITED
STATES V. MUNSINGWEAR, 340 U.S. 36, 39-41; NOTE, 103 U. PA. L. REV.
772, 794.  APPELLANTS WOULD HAVE THE INJUNCTION REVERSED ON THE MERITS
AS IMPROPERLY ISSUED RATHER THAN VACATED AS APPELLEES DESIRE.  ALTHOUGH
THERE IS THIS DIFFERENCE AS TO THE PROPER DISPOSITION OF THIS CASE, THE
NET RESULT IS THAT NO PARTY WISHES THE INJUNCTION TO REMAIN IN EFFECT. 
IN THE PRESENT POSTURE OF THE CASE, THE CONCLUSION WHICH EMERGES IS
THAT ALTHOUGH THE PARTIES DIFFER WITH RESPECT TO THE ABSTRACT LEGAL
QUESTION OF THE VALIDITY OF THE ORDER, THERE IS NO LONGER PRESENT HERE
THAT "REAL, EARNEST AND VITAL CONTROVERSY BETWEEN INDIVIDUALS" WHICH
ASSURES US THAT A CAUSE IS IN A "REAL SENSE ADVERSARY."  (FN11)
CHICAGO & GRAND TRUCK R. CO. V. WELLMAN, 143 U.S. 339, 345; UNITED
STATES V. JOHNSON, 319 U.S. 302, 305.  APPELLANTS' ARGUMENT THAT THE
ORDER, THOUGH VACATED, WILL HAVE AN INHIBITORY EFFECT UPON THE
LEGISLATURE'S ACTIVITY IS BUT A WAY OF SAYING THAT APPELLANTS DESIRE TO
KNOW FOR THEIR OWN PURPOSES, AS A GUIDE TO FUTURE CONDUCT, WHAT THIS
COURT WOULD HAVE SAID ON THE MERITS, HAD THE ISSUE REMAINED EMBEDDED IN
A REAL AND SUBSTANTIAL CONTROVERSY.  WITHOUT SUCH A CONTROVERSY
CURRENTLY EXISTING BETWEEN THOSE WHO APPEAR AS ADVERSE PARTIES, THIS
COURT SHOULD NOT GIVE AN OPINION UPON QUESTIONS OF LAW "WHICH A PARTY
DESIRES TO KNOW FOR  ...  HIS OWN PURPOSES."  (FN12)  CLEVELAND V.
CHAMBERLAIN, 1 BLACK 419, 426; SEE WOODPAPER CO. V. HEFT, 8 WALL.  333;
SOUTH SPRING HILL GOLD MINING CO. V. AMADOR MEDEAN GOLD MINING CO., 145
U.S. 300. 

THE SITUATION IN THIS CASE IS A FAR CRY FROM THAT PRESENTED IN BUS
EMPLOYEES V. MISSOURI, SUPRA, WHERE AN "EXISTING UNRESOLVED DISPUTE"
MADE THE LIKELIHOOD OF REPETITION OF THE CONDUCT IN QUESTION MUCH
GREATER THAN THE MERE "SPECULATIVE" POSSIBILITY EXISTING HERE.  ID., AT
78.  NOR DO OTHER DECISIONS (FN13) RELIED UPON BY APPELLANTS SUPPORT
THEIR POSITION.  IN NONE OF THESE CASES WAS THERE ANY ASSERTION, AS
HERE, BY THE PARTY FOR WHOSE BENEFIT THE INJUNCTION ORDER WAS ISSUED,
THAT IT HAD BECOME HIGHLY PROBLEMATICAL THAT THE CONDUCT WHICH UNDERLAY
THE CONTROVERSY WOULD BE REPEATED.  IN FEDERAL TRADE COMM'N V. GOODYEAR
TIRE & RUBBER CO., 304 U.S. 257; J.I. CASE CO. V. LABOR BOARD, 321 U.S.
332, RELIED UPON BY APPELLANTS, THE PARTY SUPPORTING THE VALIDITY OF
THE ORDER CALLED INTO QUESTION CONTENDED THAT THE ORDER WAS NECESSARY
AND ITS VALIDITY SHOULD BE REVIEWED.  IN THE INSTANT CASE WHETHER OR
NOT THE LEGISLATURE, WHILE STILL MALAPPORTIONED, WILL SUBMIT A WHOLLY
NEW CONSTITUTION TO THE VOTERS IS HIGHLY PROBLEMATICAL, AND THE PARTIES
SUPPORTING THE CORRECTNESS OF THE INJUNCTION THEMSELVES FEEL THAT IT
SHOULD BE VACATED SINCE THEY SEE NO THREAT THAT THE LEGISLATURE WILL
REPEAT CONDUCT THEY CONSIDER ILLEGAL.  THE CASE IS, THEREFORE, MUCH
MORE CLOSELY ANALOGOUS TO UNITED STATES V. ALASKA S.S. CO., SUPRA, IN
WHICH THIS COURT REFUSED TO REVIEW THE QUESTION OF THE POWER OF THE
INTERSTATE COMMERCE COMMISSION TO REQUIRE CARRIERS TO COMPLY WITH AN
ICC ORDER PRESCRIBING CERTAIN BILLS OF LADING.  A THREE-JUDGE DISTRICT
COURT HAD FOUND THE COMMISSION HAD NO SUCH POWER AND HAD ENJOINED THE
COMMISSION FROM EVER ISSUING SUCH AN ORDER.  BEFORE ARGUMENT IN THIS
COURT, HOWEVER, IT BECAME CLEAR THAT PROVISIONS IN THE BILLS OF LADING
PRESCRIBED BY THE COMMISSION CONFLICTED WITH PROVISIONS CONTAINED IN
NEW LEGISLATION PASSED BY CONGRESS AFTER THE DISTRICT COURT'S
DECISION.  SINCE THE PARTICULAR BILLS OF LADING PRESCRIBED WOULD HAVE
TO BE WITHDRAWN BY THE COMMISSION IN VIEW OF THIS LEGISLATION, AND
BECAUSE OF THE UNCERTAINTY AS TO WHETHER THE COMMISSION WOULD PRESCRIBE
NEW BILLS OF LADING OR THE FORM THEY WOULD TAKE, THIS COURT REFUSED TO
DECIDE THE ISSUE OF WHETHER THE COMMISSION HAD THE POWER TO PRESCRIBE
ANY BILLS OF LADING.  THE COURT STATED, "HOWEVER CONVENIENT IT MIGHT BE
TO HAVE DECIDED THE QUESTION OF THE POWER OF THE COMMISSION TO REQUIRE
THE CARRIERS TO COMPLY WITH AN ORDER PRESCRIBING BILLS OF LADING, THIS
COURT 'IS NOT EMPOWERED TO DECIDE MOOT QUESTIONS OR ABSTRACT
PROPOSITIONS, OR TO DECLARE, FOR THE GOVERNMENT OF FUTURE CASES,
PRINCIPLES OR RULES OF LAW WHICH CANNOT AFFECT THE RESULT AS TO THE
THING IN ISSUE IN THE CASE BEFORE IT.'"  253 U.S., AT 116.  THE COURT
REVERSED THE DISTRICT COURT'S ORDER AND REMANDED THE CASE TO THE
DISTRICT COURT "WITH DIRECTIONS TO DISMISS THE PETITION  ... WITHOUT
PREJUDICE TO THE RIGHT OF THE COMPLAINANTS TO ASSAIL IN THE FUTURE ANY
ORDER OF THE COMMISSION PRESCRIBING BILLS OF LADING AFTER THE ENACTMENT
OF THE NEW LEGISLATION."  ID., AT 116-117.  UNLESS ALASKA S.S. CO., IS
TO BE OVERRULED OR IGNORED, THE COURT SHOULD ACT SIMILARLY HERE. 

FINALLY, I FIND THE COURT'S DISPOSITION OF THIS CASE MYSTIFYING, FOR
I CANNOT UNDERSTAND WHAT THE DISTRICT COURT IS TO DO UPON REMAND. 
SINCE THE DISTRICT COURT'S ORDER HAS BEEN VACATED, NO INJUNCTION WILL
BE IN EFFECT.  PRESUMABLY THE DISTRICT COURT WILL HAVE BEFORE IT TWO
GROUPS OF PARTIES, ONE GROUP URGING THAT NO ORDER BE ENTERED AND THE
OTHER GROUP CLAIMING THAT NO ORDER IS NECESSARY BECAUSE THE LIKELIHOOD
OF THE LEGISLATURE'S RESUBMITTING A NEW CONSTITUTION IS TOO REMOTE. 
IT IS INCONCEIVABLE TO ME THAT THE DISTRICT COURT WOULD BE WARRANTED IN
REINSTATING ITS INJUNCTION UNDER THE PRESENT FACTS.  OF COURSE, IF
CIRCUMSTANCES CHANGED, AND THERE WAS A REAL, RATHER THAN A TENUOUS
THREAT OF FURTHER LEGISLATIVE ACTION OF THE TYPE ORIGINALLY COMPLAINED
OF, THE DISTRICT COURT, WHICH HAS RETAINED JURISDICTION OF THIS CASE,
WOULD BE EMPOWERED TO ENTERTAIN AN APPLICATION FOR APPROPRIATE
INJUNCTIVE RELIEF.  HOWEVER, I CANNOT UNDERSTAND THE LOGIC OF THE
COURT'S DECISION IN ASKING THE DISTRICT COURT NOW TO MAKE A
DETERMINATION WHICH, UNDER THE PRESENT CIRCUMSTANCES, IS RIGHTFULLY OUR
RESPONSIBILITY.    MY BROTHER HARLAN SUGGESTS THAT, CONTRARY TO MY
VIEW, "THE COURT DOES NOT REMAND THE CASE TO THE DISTRICT COURT FOR A
DETERMINATION ON THE ISSUE OF MOOTNESS, BUT ONLY TO DECIDE WHETHER ANY
INJUNCTIVE RELIEF IS NOW APPROPRIATE IN LIGHT OF WHAT HAS TRANSPIRED
SINCE SUCH RELIEF WAS FIRST GRANTED."  ANTE, P. 624.  BUT WITH DUE
RESPECT, I SUGGEST THAT HIS INTERPRETATION OF THE COURT'S OPINION IS
NOT JUSTIFIED BY WHAT THE COURT SAYS OR DOES.  THE COURT EXPLICITLY
SETS FORTH APPELLEES' CONTENTION THAT THE CASE IS MOOT BECAUSE "THE
SITUATION HAS CHANGED SOMEWHAT SINCE THE 1964 ELECTION," AND "IT IS NOW
HIGHLY SPECULATIVE AS TO WHAT THE 1965 LEGISLATURE WILL DO" (ANTE, P.
622), AND THEN THE COURT REMANDS THE CASE FOR RECONSIDERATION OF THE
DESIRABILITY OF AND NEED FOR THE INJUNCTION IN TERMS OF THE CONTENTIONS
RAISED BY APPELLEES, I.E., "IN LIGHT OF THE RESULTS OF THE 1964
ELECTION AND THE REPRESENTATIONS OF APPELLEES."  IBID.  THIS SURELY
MUST MEAN THAT THE COURT IS ASKING THE DISTRICT COURT TO CONSIDER
APPELLEES' CONTENTIONS THAT THE CASE IS MOOT.  FURTHER, I MIGHT BETTER
UNDERSTAND MY BROTHER HARLAN'S GENERAL DISTINCTION BETWEEN DETERMINING
WHETHER A CASE IS MOOT AND WHETHER AN INJUNCTION IS STILL APPROPRIATE
IF THERE WERE SOME ISSUE IN THIS CASE OTHER THAN THE POWER OF THE
DISTRICT COURT TO ISSUE THE INJUCTION.  BUT THE ONLY ISSUE PRESENTED
FOR DECISION ON THE MERITS IS WHETHER THE DISTRICT COURT VALIDLY ISSUED
THIS TYPE OF INJUNCTION; THUS TO DECIDE HERE WHETHER, IN LIGHT OF THE
CHANGED CIRCUMSTANCES AND THE PARTIES' PRESENT DESIRES, CONTINUANCE OF
THE INJUNCTION IS STILL APPROPRIATE IS TO DECIDE THE IDENTICAL QUESTION
AS TO WHETHER, IN LIGHT OF THESE CHANGED CIRCUMSTANCES AND THE PRESENT
CONTENTIONS OF THE PARTIES, THE CASE HAS BECOME MOOT.  DETERMINING THE
ISSUE OF MOOTNESS AND DECIDING "WHETHER ANY INJUNCTIVE RELIEF IS NOW
APPROPRIATE IN LIGHT OF WHAT HAS TRANSPIRED SINCE SUCH RELIEF WAS FIRST
GRANTED," BOTH COME DOWN TO THE SAME THING - THE QUESTION IS WHETHER,
AT THIS JUNCTURE, AS APPELLEES CONTEND, "THIS APPEAL PRESENTS ONLY AN
ABSTRACT, HYPOTHETICAL CONTROVERSY IN WHICH THE 'LIVELY CONFLICT
BETWEEN ANTAGONISTIC DEMANDS, ACTIVELY PRESSED, WHICH MAKE RESOLUTION
OF THE CONTROVERTED ISSUE A PRACTICAL NECESSITY' IS LACKING."  THE
QUESTION IS ONE FOR THIS COURT TO DECIDE. 

I BELIEVE THAT THE PROPER RESULT IN THIS CASE WOULD BE TO SUSTAIN THE
APPELLEES' MOTION TO DISMISS FOR MOOTNESS AND TO ENTER AN ORDER
VACATING PARAGRAPH (2) OF THE DISTRICT COURT'S ORDER OF JUNE 30, 1964,
PROHIBITING SUBMISSION OF A WHOLLY NEW CONSTITUTION TO THE VOTERS BY
THE LEGISLATURE AT THE 1964 ELECTION OR "AT ANY SUBSEQUENT ELECTION
UNTIL IT  ...  IS REAPPORTIONED IN ACCORDANCE WITH CONSTITUTIONAL
STANDARDS."  THUS THIS PORTION OF THE SLATE WOULD BE WIPED CLEAN,
UNITED STATES V. MUNSINGWEAR, SUPRA, WITHOUT ANY NECESSITY FOR FURTHER
PROCEEDINGS BELOW TO TRY THE MOOTNESS ISSUE.  IN VIEW OF THE PARTIES'
STIPULATIONS BEFORE THIS COURT THAT THEY ACCEPT THE MODIFICATIONS
ENTERED BY THE DISTRICT COURT ON NOVEMBER 3, 1964, I BELIEVE THAT THE
COURT IS CORRECT IN NOT PASSING UPON THE VALIDITY OF PARAGRAPH (3) OF
THE DISTRICT COURT'S ORDER OF JUNE 30, 1964 - THAT PORTION OF THE ORDER
WHICH APPELLANTS TOOK AS LIMITING THE POWERS OF THE 1965 LEGISLATURE. 
HOWEVER, BECAUSE OF DOUBTS EXPRESSED AS TO THE JURISDICTION OF THE
DISTRICT COURT TO ENTER ITS MODIFIED ORDER WHILE APPEAL IS PENDING IN
THIS COURT, SEE SCHEMPP V. SCHOOL DISTRICT, 184 F. SUPP. 381 (D.C.E.D.
PA.), THE COURT OUGHT ALSO TO VACATE PARAGRAPH (3) OF THE JUNE 30,
1964, ORDER ON THE ASSUMPTION THAT THE DISTRICT COURT WILL RE-ENTER ITS
MODIFIED ORDER OF NOVEMBER 3, 1964, IN ACCORDANCE WITH THE AGREEMENT OF
THE PARTIES. 

THE FEDERAL DISTRICT COURTS HAVE ENOUGH TO DO IN DECIDING RIPE
REAPPORTIONMENT CASES WITHOUT OUR REQUIRING THEM TO DECIDE STALE ONES. 

FN1  SEE, E.G., SAN MATEO COUNTY V. SOUTHERN PAC. R. CO., 116 U.S.
138; UNITED STATES V. ALASKA S.S. CO., 253 U.S. 113; BUS EMPLOYEES V.
WISCONSIN BOARD, 340 U.S. 416; OIL WORKERS UNIONS V. MISSOURI, 361 U.S.
363, AND THE NUMEROUS CASES CITED AT 368, N. 7 THEREIN. 

FN2  THE DISTRICT COURT'S ORDER OF JUNE 30, 1964, IS PRINTED AS
APPENDIX A. 

FN3  APPELLANTS INTERPRETED PARAGRAPH (3) OF THE ORDER TO MEAN THAT
THE 1965 LEGISLATURE COULD ONLY DEAL WITH WHAT WAS LEGALLY CONSIDERED
TO BE "LEGISLATION."  THEY FEARED THAT THE LEGISLATURE WOULD BE UNABLE
TO CONDUCT INVESTIGATIONS, VOTE PARDONS, OR PERFORM OTHER SIMILAR
DUTIES.  THEY ALSO WERE CONCERNED THAT UNDER THE TERMS OF THE DISTRICT
COURT'S ORDER THE 1965 LEGISLATURE MIGHT BE UNABLE TO MEET IN SPECIAL
SESSION IF SUCH A SESSION PROVED NECESSARY. 

FN4  THIS ORDER IS PRINTED HERE AS APPENDIX B. 

FN5  APPELLEES POINTED OUT AT THE ARGUMENT THAT IN THE NEW
LEGISLATURE WHICH WILL MEET IN 1965, 20 OF THE 54 SENATORS AND 67 OF
THE 205 REPRESENTATIVES WILL HAVE BEEN NEWLY ELECTED AT THE NOVEMBER
1964 ELECTION. 

FN6  IN THEIR MOTION TO DISMISS AT P. 5, APPELLEES STATE: 

"BEFORE THE PROPOSED NEW CONSTITUTION CAN BE PLACED ON THE BALLOT FOR
RATIFICATION IN ANY FUTURE GENERAL ELECTION, IT MUST AGAIN BE SUBMITTED
TO THE GENERAL ASSEMBLY AND PASSED BY AN AFFIRMATIVE TWO-THIRDS VOTE OF
BOTH HOUSES.  THIS COURT HAS REPEATEDLY ADMONISHED THAT 'CONSTITUTIONAL
QUESTIONS ARE NOT TO BE DEALT WITH ABSTRACTLY.'  THE MERE POSSIBILITY
THAT A SIMILAR CONSTITUTIONAL PROPOSAL MAY BE PASSED BY THE GENERAL
ASSEMBLY AT SOME FUTURE TIME IS AN INSUFFICIENT BASIS FOR INVOKING THE
AWESOME RESPONSIBILITY OF CONSTITUTIONAL ADJUDICATION BY THIS COURT. 
WITHOUT FURTHER LEGISLATIVE ACTION, THIS APPEAL PRESENTS ONLY AN
ABSTRACT, HYPOTHETICAL CONTROVERSY IN WHICH THE 'LIVELY CONFLICT
BETWEEN ANTAGONISTIC DEMANDS, ACTIVELY PRESSED, WHICH MAKE RESOLUTION
OF THE CONTROVERTED ISSUE A PRACTICAL NECESSITY' IS LACKING." 
(CITATIONS OMITTED.) 

FN7  THIS PORTION OF THE DISTRICT COURT'S ORDER ALSO RESTED UPON A
DETERMINATION THAT UNDER GEORGIA LAW THE LEGISLATURE COULD NOT SUBMIT
TO THE VOTERS A WHOLLY NEW CONSTITUTION IN THE FORM OF AN AMENDMENT TO
THE EXISTING CONSTITUTION.  QUESTIONS ARE RAISED AS TO THE CORRECTNESS
OF THIS DETERMINATION AND THE PROPRIETY OF THE DISTRICT COURT'S HAVING
MADE IT.  SEE LOUISIANA POWER & LIGHT CO. V. THIBODAUX, 360 U.S. 25. 
IN LIGHT OF MY RESOLUTION OF THIS CASE, I WOULD NOT REACH THESE
QUESTIONS. 

FN8  SEE BAKER V. CARR, 369 U.S. 186; REYNOLDS V. SIMS, 377 U.S. 533,
AND COMPANION CASES. 

FN9  SEE UNITED STATES V. ALASKA S.S. CO., 253 U.S. 113. 

FN10  SEE SAN MATEO COUNTY V. SOUTHERN PAC. R. CO., 116 U.S. 138;
MILLS V. GREEN, 159 U.S. 651; JONES V. MONTAGUE, 194 U.S. 147; HARRIS
V. BATTLE, 348 U.S. 803. 

FN11  SINCE THEIR MOTION TO DISMISS WAS RESERVED UNTIL THE HEARING,
APPELLEES HAVE CONSCIENTIOUSLY ARGUED THE MERITS.  HOWEVER, WE CANNOT
IGNORE THE BASIC FACT THAT THEY ARE NOT PRESSING FOR A DECISION ON THE
MERITS SINCE THEY BELIEVE THEY NO LONGER NEED THE PROTECTION OF THE
INJUNCTION. 

FN12  THAT APPELLANTS' ARGUMENT DOES NOT SHOW THAT THIS COURT SHOULD
REACH THE MERITS HERE IS FURTHER DEMONSTRATED BY THE FACT THAT ANY
INHIBITORY EFFECT PRODUCED BY THE DISTRICT COURT'S INJUNCTION AT ISSUE
HERE WOULD ALSO BE PRODUCED BY THAT PART OF THE INJUNCTION PROHIBITING
SUBMISSION OF A NEW CONSTITUTION ONLY AT THE 1964 ELECTION.  YET
APPELLANTS CONCEDE, AS THEY MUST, THAT THIS COURT WOULD NOT NOW REVIEW
THAT PART OF THE INJUNCTION CONCERNED ONLY WITH THE NOVEMBER 1964
ELECTION WHICH HAS ALREADY TAKEN PLACE SINCE THE NEW CONSTITUTION WAS
NOT SUBMITTED TO THE VOTERS IN NOVEMBER 1964 AND UNDER GEORGIA LAW IT
HAS LAPSED AND CANNOT BE RESUBMITTED.  SEE MILLS V. GREEN, SUPRA.

FN13  SOUTHERN PACIFIC TERMINAL CO. V. ICC, 219 U.S. 498; FEDERAL
TRADE COMM'N V. GOODYEAR TIRE & RUBBER CO., 304 U.S. 257; J.I. CASE CO.
V. LABOR BOARD, 321 U.S. 332. 

                           APPENDIX A TO OPINION OF MR. JUSTICE

                                   GOLDBERG, DISSENTING. 

                         FINAL ORDER OF THE COURT OF JUNE 30,
1964. 

   REVISED ORDER. 

ALL PARTIES HAVING CONSENTED THERETO, THE ORDER OF THE COURT DATED
JUNE 24, 1964, IS HEREBY REVISED TO READ AS FOLLOWS: 

IT IS NOW ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 

(1)  ARTICLE III, SECTION III, PARAGRAPH I (CODE SECTION 2-1501) OF
THE CONSTITUTION OF GEORGIA OF 1945, IS HEREBY DECLARED TO BE NULL,
VOID AND INOPERATIVE, AS BEING IN CONFLICT WITH THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. 

TO BE PROSPECTIVELY NULL, VOID AND INOPERATIVE, AS BEING IN CONFLICT
WITH THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES,
FOR ELECTIONS TO THE HOUSE OF REPRESENTATIVES AFTER THE GENERAL
ELECTION TO BE HELD IN NOVEMBER OF 1964. 

(2)  THE DEFENDANTS ARE HEREBY ENJOINED FROM PLACING ON THE BALLOT TO
BE USED IN THE GENERAL ELECTION TO BE HELD ON NOVEMBER 3, 1964, OR AT
ANY SUBSEQUENT ELECTION UNTIL THE GENERAL ASSEMBLY IS REAPPORTIONED IN
ACCORDANCE WITH CONSTITUTIONAL STANDARDS, THE QUESTION WHETHER A
CONSTITUTIONAL AMENDMENT PURPORTING TO AMEND THE PRESENT STATE
CONSTITUTION BY SUBSTITUTING AN ENTIRELY NEW CONSTITUTION THEREFOR
SHALL BE ADOPTED; PROVIDED, HOWEVER, NOTHING IN THIS ORDER SHALL
PREVENT THE SUBMISSION OF AMENDMENTS TO THE CONSTITUTION OF THE STATE
OF GEORGIA WHICH ARE SEPARATE AS TO SUBJECT MATTER, IN ACCORDANCE WITH
ARTICLE XIII, SECTION I, ARTICLE 1, OF THE CONSTITUTION OF THE STATE OF
GEORGIA, 1945.  (SEE HAMMOND V. CLARKE, 136 GA. 313, FOR A DISCUSSION
BY THE GEORGIA SUPREME COURT OF WHAT CONSTITUTES SEPARATE AMENDMENTS). 
NOR SHALL ANYTHING IN THIS ORDER PREVENT THE CALLING BY THE GENERAL
ASSEMBLY OF A "CONVENTION OF THE PEOPLE TO REVISE, AMEND OR CHANGE THE
CONSTITUTION" IF THE REPRESENTATION "IN THE CONVENTION IS BASED ON
POPULATION AS NEAR AS PRACTICABLE" WITH THE MEMBERS BEING ELECTED BY
THE PEOPLE (SEE ARTICLE XIII, SECTION I, ARTICLE 2).  CONSTITUTION OF
THE STATE OF GEORGIA, 1945. 

(3)  THE MOTION OF THE PLAINTIFFS FOR FURTHER INJUNCTIVE RELIEF PRIOR
TO THE CONDUCT OF THE PARTY PRIMARIES OR CONVENTIONS AND THE GENERAL
ELECTION OF NOVEMBER 3, 1964, IS HEREBY DENIED AT THIS TIME, PROVIDED,
HOWEVER, THAT NOTWITHSTANDING ANYTHING IN ARTICLE III, SECTION IV,
PARAGRAPH I (CODE SECTION 2-1601) OF THE CONSTITUTION OF GEORGIA OF
1945 TO THE CONTRARY, THE SERVICE OF THE MEMBERS OF THE HOUSE OF
REPRESENTATIVES OF THE GENERAL ASSEMBLY OF THE STATE OF GEORGIA TO BE
ELECTED AT THE GENERAL ELECTION IN NOVEMBER, 1964, SHALL BE LIMITED TO
THE ENACTMENT OF SUCH LEGISLATION AS SHALL PROPERLY COME BEFORE THE
SAID LEGISLATURE DURING THE REGULAR 1965 45-DAY SESSION, AS PROVIDED IN
THE GEORGIA CONSTITUTION, INCLUDING SUCH LEGISLATION AS MAY BE
NECESSARY FOR THE GENERAL ASSEMBLY TO BE REAPPORTIONED IN ACCORDANCE
WITH CONSTITUTIONAL REQUIREMENTS AND AS MAY BE NECESSARY TO PERMIT THE
HOLDING OF ELECTIONS TO THE NEWLY CONSTITUTED GENERAL ASSEMBLY, SAID
ELECTIONS TO BE HELD AT SUCH TIMES AS MAY BE NECESSARY TO PERMIT THE
MEMBERS OF SUCH GENERAL ASSEMBLY TO TAKE OFFICE AS SOON AS PRACTICABLE,
BUT IN NO EVENT LATER THAN THE SECOND MONDAY IN JANUARY, 1966. 

                            APPENDIX B TO OPINION OF MR. JUSTICE

                                    GOLDBERG, DISSENTING. 

                      ORDER OF THE DISTRICT COURT OF NOVEMBER 3,
1964. 

BOTH PARTIES AGREE THAT THE MOTION FOR ALTERNATIVE RELIEF SHOULD BE
GRANTED.  THEREFORE, PARAGRAPH 3 OF THE ORDER OF JUNE 30, 1964, IS
HEREBY STRICKEN AND THE FOLLOWING PARAGRAPH 3 IS SUBSTITUTED IN LIEU
THEREOF: 

"(3)  THE MOTION OF THE PLAINTIFFS FOR FURTHER INJUNCTIVE RELIEF
PRIOR TO THE CONDUCT OF THE PARTY PRIMARIES OR CONVENTIONS AND THE
GENERAL ELECTION OF NOVEMBER 3, 1964, IS HEREBY DENIED AT THIS TIME,
PROVIDED, HOWEVER, THAT, NOTWITHSTANDING ANYTHING IN ARTICLE III,
GEORGIA OF 1945 TO THE CONTRARY, THE SERVICE OF THE MEMBERS OF THE
HOUSE OF REPRESENTATIVES OF THE GENERAL ASSEMBLY OF THE STATE OF
GEORGIA TO BE ELECTED AT THE GENERAL ELECTION IN NOVEMBER, 1964, SHALL
BE LIMITED TO A TERM OF ONE YEAR'S DURATION AND PROVIDED FURTHER THAT
THE PLAINTIFFS SHALL HAVE THE RIGHT TO REAPPLY TO THIS COURT FOR
FURTHER RELIEF SHOULD THE GENERAL ASSEMBLY, WHICH CONVENES IN JANUARY,
1965, FAIL TO ENACT, DURING THE REGULAR 1965 45-DAY SESSION, AS
PROVIDED IN THE GEORGIA CONSTITUTION, SUCH LEGISLATION AS MAY BE
NECESSARY FOR THE GENERAL ASSEMBLY TO BE REAPPORTIONED IN ACCORDANCE
WITH CONSTITUTIONAL REQUIREMENTS AND AS MAY BE NECESSARY TO PERMIT THE
HOLDING OF ELECTIONS TO THE NEWLY CONSTITUTED GENERAL ASSEMBLY DURING
THE CALENDAR YEAR 1965, WHICH ELECTIONS ARE TO BE HELD AT SUCH TIME AS
MAY BE NECESSARY TO PERMIT THE MEMBERS OF SUCH NEWLY CONSTITUTED
GENERAL ASSEMBLY TO TAKE OFFICE NO LATER THAN THE SECOND MONDAY IN
JANUARY, 1966.  TO THE EXTENT THAT STATE STATUTORY AND CONSTITUTIONAL
PROVISIONS MIGHT OTHERWISE CONFLICT WITH SUCH LEGISLATIVE
REAPPORTIONMENT, THEY ARE HEREBY DECLARED TO BE VOID AND OF NO
EFFECT." 

THIS 3RD DAY OF NOVEMBER, 1964. 
..END :


















ARROW TRANSPORTATION CO. V. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC
RAILWAY CO. 379 U.S. 642 


NO. 544.  DECIDED JANUARY 18, 1965* - 229 F. SUPP. 572, JUDGMENT VACATED
AND CASE REMANDED. 

*TOGETHER WITH NO. 545, INTERSTATE COMMERCE COMMISSION V. CINCINNATI,
NEW ORLEANS & TEXAS PACIFIC RAILWAY CO. ET AL., ALSO ON APPEAL FROM THE
SAME COURT. 


THE DISTRICT COURT'S JUDGMENT ENJOINING THE OPERATION OF AN INTERSTATE
COMMERCE COMMISSION (ICC) ORDER CANCELING CERTAIN RAILROAD RATE
REDUCTIONS IS VACATED AND THE CASE REMANDED TO HAVE THE ICC RECONSIDER
IN LIGHT OF THE DISTRICT COURT'S DETERMINATION THAT THE ICC'S ORDER WAS
NOT SUPPORTED BY ADEQUATE FINDINGS. 

ARROW TRANSPORTATION CO. ET AL. V. CINCINNATI, NEW ORLEANS & TEXAS
PACIFIC RAILWAY CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THESE APPEALS ARE FROM A SINGLE JUDGMENT OF A THREE-JUDGE DISTRICT
COURT, 229 F. SUPP.  572, WHICH SET ASIDE AND PERMANENTLY ENJOINED THE
OPERATION, ENFORCEMENT AND EXECUTION OF THE ORDER OF THE INTERSTATE
COMMERCE COMMISSION, 321 I.C.C. 582, CANCELING CERTAIN RATE REDUCTIONS
WHICH HAD BEEN PUT INTO EFFECT BY THE APPELLEE RAILROADS ON THE GROUNDS
THAT THE NEW LOWER RATES VIOLATED SECS. 1(5) AND 3(1) OF THE INTERSTATE
COMMERCE ACT, 49 U.S.C.  SECS. 1(5), 3(1) (1958 ED.).  THE JUDGMENT OF
THE DISTRICT COURT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT WITH INSTRUCTIONS TO ENTER AN ORDER REMANDING THE CASE TO THE
INTERSTATE COMMERCE COMMISSION FOR RECONSIDERATION BY THE COMMISSION IN
LIGHT OF THE DISTRICT COURT'S DETERMINATIONS (1) THAT THE COMMISSION'S
CONCLUSION THAT SEC. 3(1) WAS VIOLATED WAS NOT SUPPORTED BY ADEQUATE
FINDINGS AND (2) THAT THE COMMISSION'S CONCLUSION THAT SEC. 1(5) WAS
VIOLATED WAS BASED, AT LEAST IN PART, ON ITS PRIOR CONCLUSION THAT
THERE WAS A VIOLATION OF SEC. 3(1).  SEE FPC V. IDAHO POWER CO., 344
U.S. 17, 20. 

MR. JUSTICE BLACK, MR. JUSTICE STEWART, AND MR. JUSTICE WHITE WOULD
NOTE PROBABLE JURISDICTION OF THESE APPEALS AND SET THEM FOR ARGUMENT
ON THE MERITS. 
..END :







NATIONAL LABOR RELATIONS BOARD V. ADAMS DAIRY, INC. 379 U.S. 644 


NO. 25.  DECIDED JANUARY 18, 1965 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  REPORTED BELOW:  322 F.2D 553. 


NATIONAL LABOR RELATIONS BOARD V. ADAMS DAIRY, INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT FOR RECONSIDERATION IN LIGHT OF FIBREBOARD PAPER
PRODUCTS CORP. V. LABOR BOARD, ANTE, P. 203. 
..END :














TISONE V. OHIO 379 U.S. 644 


NO. 564.  DECIDED JANUARY 18, 1965 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


TISONE V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HALPERT V. UDALL 379 U.S. 645 


NO. 552.  DECIDED JANUARY 18, 1965 - 231 F. SUPP. 574, AFFIRMED. 


HALPERT ET AL. V. UDALL, SECRETARY OF THE INTERIOR. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















WINKLE V. BANNAN 379 U.S. 645 


NO. 553.  DECIDED JANUARY 18, 1965. 


MOTION TO STRIKE EXCERPTS FROM MOTION TO DISMISS DENIED; APPEAL
DISMISSED; AND CERTIORARI DENIED. 

WINKLE V. BANNAN, WARDEN. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO STRIKE EXCERPTS FROM THE MOTION TO DISMISS IS DENIED. 
THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :












THORN V. HARRISBURG TRUST CO. 379 U.S. 646 


NO. 557.  DECIDED JANUARY 18, 1965 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 330 F.2D 3. 


THORN ET AL. V. HARRISBURG TRUST CO. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A
WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















WINSHIP V. CORPUS CHRISTI, TEXAS 379 U.S. 646 


NO. 563.  DECIDED JANUARY 18, 1965 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 373 S.W.2D 844. 


WINSHIP ET AL. V. CITY OF CORPUS CHRISTI, TEXAS. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, THIRTEENTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















KITTY HAWK DEVELOPMENT V. COLORADO SPRINGS 379 U.S. 647 


NO. 565.  DECIDED JANUARY 18, 1965 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 154 COLO. 535, 392 P.2D 467. 


KITTY HAWK DEVELOPMENT CO. V. CITY OF COLORADO SPRINGS. 

APPEAL FROM THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SHERIDAN V. GARDNER 379 U.S. 647 


NO. 612.  DECIDED JANUARY 18, 1965 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


SHERIDAN V. GARDNER ET AL. 

APPEAL FROM THE SUPERIOR COURT OF MASSACHUSETTS, SUFFOLK COUNTY. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















VOORHES V. DEMPSEY 379 U.S. 648 


NO. 600.  DECIDED JANUARY 18, 1965 - 231 F. SUPP. 975, AFFIRMED. 


VOORHES ET AL. V. DEMPSEY, GOVERNOR OF CONNECTICUT, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















LYLES V. BETO 379 U.S. 648 


NO. 263, MISC.  DECIDED JANUARY 18, 1965 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  329 F.2D 332. 


LYLES V. BETO, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR RECONSIDERATION IN LIGHT
OF MASSIAH V. UNITED STATES, 377 U.S. 201. 
..END :














MORRISON-KNUDSEN, DBA MORRISON-KAISER-PUGET SOUND-GENERAL V. WASHINGTON
379 U.S. 649 


NO. 566.  DECIDED JANUARY 18, 1965 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  64 WASH. 2D 86, 390 P.2D 712. 


MORRISON-KNUDSEN CO., INC., ET AL., DOING BUSINESS AS MORRISON-KAISER
PUGET SOUND-GENERAL V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














PARSONS V. BUCKLEY 379 U.S. 359 


NO. 624 - DECIDED JANUARY 12, 1965* - 234 F. SUPP. 191, MODIFIED AND
AFFIRMED. 

*TOGETHER WITH NO. 625, HOFF, GOVERNOR OF VERMONT, ET AL. V. BUCKLEY
ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


PARTIES' STIPULATION SEEKING MODIFICATION OF THE REMEDIAL PORTION OF
DISTRICT COURT JUDGMENT HOLDING VERMONT CONSTITUTIONAL PROVISIONS
CONCERNING LEGISLATIVE APPORTIONMENT INVALID UNDER FOURTEENTH AMENDMENT
APPROVED BY THIS COURT; THE JUDGMENT MODIFIED TO CONFORM TO THE
STIPULATION; AND THE JUDGMENT AS SO MODIFIED AFFIRMED.  PP. 359-364. 

PARSONS, TOWN CLERK OF THE TOWN OF HUBBARDTON, ET AL. V. BUCKLEY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
VERMONT. 

PER CURIAM. 

THE DISTRICT COURT ON AUGUST 3, 1964, ENTERED A JUDGMENT HOLDING
INVALID UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, SECS. 13 AND 18 OF CHAPTER II OF THE CONSTITUTION OF
VERMONT RELATING TO APPORTIONMENT OF THE GENERAL ASSEMBLY OF THE STATE
OF VERMONT.  234 F. SUPP. 191.  PARAGRAPH (3) OF THE JUDGMENT OF THE
DISTRICT COURT IS AS FOLLOWS: 

"(3)  THEREFORE, SUBJECT TO THE PROVISIONS HEREINAFTER APPEARING, THE
INJUNCTION THAT PLAINTIFFS HAVE REQUESTED RESTRAINING THE OFFICERS OF
THE STATE AND THOSE OF THE COUNTIES, TOWNS AND CITIES CHARGED WITH THE
CONDUCT OF THE ELECTIONS OF MEMBERS OF THE GENERAL ASSEMBLY FROM
PROCEEDING WITH ELECTIONS PURSUANT TO THE PRESENT METHOD OF
APPORTIONMENT IS GRANTED; AND THE DEFENDANTS PHILIP H. HOFF, GOVERNOR
OF VERMONT, HOWARD E. ARMSTRONG, SECRETARY OF STATE, THE TOWN CLERKS OF
THE TOWNS OF VERMONT, AND THE COUNTY CLERKS OF THE COUNTIES OF VERMONT,
AND THEIR RESPECTIVE SUCCESSORS IN OFFICE, ARE PERPETUALLY ENJOINED
FROM DOING ANY ACT OR TAKING ANY STEPS IN FURTHERANCE OF NOMINATING OR
HOLDING ELECTIONS OF SENATORS OR REPRESENTATIVES TO THE SENATE OR HOUSE
OF REPRESENTATIVES OF THE STATE OF VERMONT PURSUANT TO SAID METHOD, AND
SAID DEFENDANTS ARE FURTHER ENJOINED FROM CERTIFYING OR IN ANY OTHER
MANNER DECLARING THAT THE RESULTS OF SUCH NOMINATIONS OR ELECTIONS ARE
VALID OR THAT THE GENERAL ASSEMBLY OF THE STATE OF VERMONT WHICH, IF
CONSTITUTIONALLY ELECTED, WOULD BE CONVENED ON JANUARY 6, 1965, IS
PROPERLY OR LEGALLY CONSTITUTED, UNLESS BY SOME OTHER AUTHORIZED LAWFUL
AND CONSTITUTIONAL METHOD SENATORS AND REPRESENTATIVES ARE NOMINATED
AND ELECTED TO THE SENATE AND HOUSE OF REPRESENTATIVES OF THE STATE OF
VERMONT PURSUANT TO A REAPPORTIONMENT OR REDISTRICTING OF THE SENATE
AND A REAPPORTIONMENT OR REDISTRICTING OF THE HOUSE OF REPRESENTATIVES
TO BE EFFECTED PROMPTLY, SUCH REAPPORTIONMENT OR REDISTRICTING OF THE
SENATE AND REAPPORTIONMENT OR REDISTRICTING OF THE HOUSE OF
REPRESENTATIVES HAVING BEEN DONE IN SUCH MANNER AS TO ACHIEVE
SUBSTANTIALLY EQUAL WEIGHTING OF THE VOTES OF ALL VOTERS IN THE CHOICE
OF MEMBERS OF THE GENERAL ASSEMBLY AS GUARANTEED BY THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION.  IT IS, HOWEVER, PERMISSIBLE FOR THE SEPTEMBER 1964
PRIMARY ELECTIONS FOR NOMINEES FOR THE OFFICES OF SENATORS AND
REPRESENTATIVES AND FOR THE GENERAL ELECTIONS TO BE HELD ON NOVEMBER 3,
1964 TO BE CONDUCTED AS PRESENTLY SCHEDULED TO BE CONDUCTED, AND IF, IN
THE MEANTIME, NO MEMBERS SHALL HAVE BEEN CHOSEN BY A CONSTITUTIONALLY
VALID METHOD, THE MEMBERS OF THE GENERAL ASSEMBLY CHOSEN AS HERETOFORE
MAY CONVENE ON JANUARY 6, 1965, PROVIDED THAT LEGISLATION SHALL BE
LIMITED TO THE DEVISING OF A CONSTITUTIONAL METHOD OF REAPPORTIONMENT
AND REDISTRICTING, AND THAT THE TERMS OF SAID MEMBERS SHALL EXPIRE ON
MARCH 31, 1965."  234 F. SUPP., AT 200. 

APPELLANTS APPEALED TO THIS COURT FROM PARAGRAPH (3) OF THE JUDGMENT
OF THE DISTRICT COURT.  ON DECEMBER 14, 1964, WE NOTED PROBABLE
JURISDICTION OF BOTH APPEALS, STAYED THAT PORTION OF THE JUDGMENT WHICH
IS THE SUBJECT OF THESE APPEALS, AND SET THESE CASES FOR ORAL ARGUMENT
ON JANUARY 18, 1965.  379 U.S. 942. 

ALL OF THE PARTIES TO AND INTERVENORS IN THESE CASES HAVE NOW MOVED
THAT THIS COURT MODIFY THE DISTRICT COURT'S JUDGMENT TO CONFORM TO A
STIPULATION SIGNED BY THEM AND AFFIRM THE JUDGMENT OF THE DISTRICT
COURT AS SO MODIFIED. 

THE PARTIES STIPULATE THAT PARAGRAPH (3) OF THE JUDGMENT BE DELETED
AND IN LIEU THEREOF THE ORDER INCLUDE THE FOLLOWING: 

"THEREFORE, SUBJECT TO THE PROVISIONS HEREINAFTER APPEARING, THE
INJUNCTION THAT PLAINTIFFS HAVE REQUESTED RESTRAINING THE OFFICERS OF
THE STATE AND THOSE OF THE COUNTIES, TOWNS AND CITIES CHARGED WITH THE
CONDUCT OF THE ELECTIONS OF MEMBERS OF THE GENERAL ASSEMBLY FROM
PROCEEDING WITH ELECTIONS PURSUANT TO THE PRESENT METHOD OF
APPORTIONMENT IS GRANTED; AND THE DEFENDANTS PHILIP H. HOFF, GOVERNOR
OF VERMONT, HOWARD E. ARMSTRONG, SECRETARY OF STATE, THE TOWN CLERKS OF
THE TOWNS OF VERMONT, AND THE COUNTY CLERKS OF THE COUNTIES OF VERMONT,
AND THEIR RESPECTIVE SUCCESSORS IN OFFICE, ARE PERPETUALLY ENJOINED
FROM DOING ANY ACT OR TAKING ANY STEPS IN FURTHERANCE OF NOMINATING OR
HOLDING ELECTIONS OF SENATORS OR REPRESENTATIVES TO THE SENATE OR HOUSE
OF REPRESENTATIVES OF THE STATE OF VERMONT PURSUANT TO SAID METHOD, AND
SAID DEFENDANTS ARE FURTHER ENJOINED FROM CERTIFYING OR IN ANY OTHER
MANNER DECLARING THAT THE RESULTS OF SUCH NOMINATIONS OR ELECTIONS ARE
VALID OR THAT THE GENERAL ASSEMBLY OF THE STATE OF VERMONT WHICH, IF
CONSTITUTIONALLY ELECTED, WOULD BE CONVENED ON JANUARY 6, 1965, IS
PROPERLY OR LEGALLY CONSTITUTED, UNLESS BY SOME OTHER AUTHORIZED LAWFUL
AND CONSTITUTIONAL METHOD SENATORS AND REPRESENTATIVES ARE NOMINATED
AND ELECTED TO THE SENATE AND HOUSE OF REPRESENTATIVES OF THE STATE OF
VERMONT PURSUANT TO A REAPPORTIONMENT OR REDISTRICTING OF THE HOUSE OF
REPRESENTATIVES TO BE EFFECTED PROMPTLY, SUCH REAPPORTIONMENT OR
REDISTRICTING OF THE SENATE AND REAPPORTIONMENT OR REDISTRICTING OF THE
HOUSE OF REPRESENTATIVES HAVING BEEN DONE IN SUCH MANNER AS TO ACHIEVE
SUBSTANTIAL EQUALITY IN THE CHOICE OF MEMBERS OF THE GENERAL ASSEMBLY
AS GUARANTEED BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION.  IT IS, HOWEVER,
PERMISSIBLE FOR THE SEPTEMBER 1964 PRIMARY ELECTIONS FOR NOMINEES FOR
THE OFFICES OF SENATORS AND REPRESENTATIVES AND FOR THE GENERAL
ELECTIONS TO BE HELD ON NOVEMBER 3, 1964 TO BE CONDUCTED AS PRESENTLY
SCHEDULED TO BE CONDUCTED, AND IF, IN THE MEANTIME, NO MEMBERS SHALL
HAVE BEEN CHOSEN BY A CONSTITUTIONALLY VALID METHOD, THE MEMBERS OF THE
GENERAL ASSEMBLY CHOSEN AS HERETOFORE MAY CONVENE ON JANUARY 6, 1965,
PROVIDED THAT: 

"(A)  A REAPPORTIONMENT BILL OR BILLS BE INTRODUCED IN AT LEAST ONE
HOUSE OF THE GENERAL ASSEMBLY BY FEBRUARY 1, 1965. 

"(B)  SHOULD THE GENERAL ASSEMBLY DESIRE TO SUBMIT THE MATTER OF
REAPPORTIONMENT TO A CONSTITUTIONAL CONVENTION, LEGISLATION SHALL BE
ENACTED ON OR BEFORE MARCH 1, 1965 TO PROVIDE FOR THE CONVENING OF A
CONSTITUTIONAL CONVENTION ON OR BEFORE JUNE 1, 1965. 

"(C)  SHOULD LEGISLATION BE ENACTED SETTING UP A CONSTITUTIONAL
CONVENTION, SAID CONVENTION SHALL FINISH ITS DELIBERATIONS BY SEPTEMBER
1, 1965. 

"(D)  IF THE MATTER OF REAPPORTIONMENT IS NOT REFERRED TO A
CONSTITUTIONAL CONVENTION, REAPPORTIONMENT LEGISLATION SHALL BE ENACTED
SO AS TO COMPLY WITH THE MANDATE OF THE COURT ON OR BEFORE JULY 1,
1965. 

"(E)  THE GENERAL ASSEMBLY SHALL BE EMPOWERED TO ENACT ALL
LEGISLATION AS USUAL FOR THE OPERATION OF STATE, TOWN AND COUNTY
GOVERNMENTS BETWEEN JANUARY 6, 1965 AND JULY 1, 1965. 

"(F)  IF REAPPORTIONMENT LEGISLATION IS NOT ENACTED BY JULY 1, 1965,
AND IF A CONSTITUTIONAL CONVENTION SHALL FAIL TO REAPPORTION THE
GENERAL ASSEMBLY BY SEPTEMBER 1, 1965, THE COURT SHALL REAPPORTION THE
GENERAL ASSEMBLY SO AS TO COMPLY WITH THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. 

"(G)  IN ANY EVENT, A REAPPORTIONED GENERAL ASSEMBLY SHALL HAVE BEEN
ELECTED AND READY TO SERVE BY THE FIRST WEDNESDAY AFTER THE FIRST
MONDAY IN JANUARY, 1966. 

"(H)  THE TERMS OF OFFICE OF THE MEMBERS TO THE 1965 GENERAL ASSEMBLY
SHALL EXPIRE ON JULY 1, 1965, EXCEPT THAT THEIR OFFICES MAY CONTINUE IF
CALLED INTO SPECIAL SESSION BY THE GOVERNOR OF THE STATE OF VERMONT TO
ACT UPON A STATE EMERGENCY NOT PERTAINING TO REAPPORTIONMENT." 

THE CASES ARE REMOVED FROM THE ARGUMENT LIST, THE STIPULATION IS
APPROVED, AND, IN ACCORDANCE THEREWITH, THE JUDGMENT OF THE DISTRICT
COURT IS MODIFIED BY VACATING PARAGRAPH (3) AND SUBSTITUTING IN LIEU
THEREOF THE QUOTED LANGUAGE OF THE STIPULATION.  AS SO MODIFIED, THE
JUDGMENT OF THE DISTRICT COURT DATED AUGUST 3, 1964, IS AFFIRMED.  THE
JUDGMENT OF THIS COURT SHALL ISSUE FORTHWITH. 

MEMORANDUM OF MR. JUSTICE HARLAN. 

I WOULD APPROVE THE STIPULATION SUBMITTED BY THE PARTIES EXCEPT FOR
SUBPARAGRAPH (F).  THAT PROVISION ENVISAGES A REAPPORTIONMENT OF THE
VERMONT LEGISLATURE BY THE DISTRICT COURT ITSELF IF AN APPORTIONMENT OF
THAT BODY, SATISFYING THE REQUIREMENTS OF REYNOLDS V. SIMS, 377 U.S.
533, IS NOT ACCOMPLISHED BY THE OTHER MEANS, AND WITHIN THE TIMETABLE,
SET FORTH IN THE STIPULATION.  (FN1)  THE PROSPECT OF THE FEDERAL
COURTS ENGAGING IN SUCH A POLITICAL UNDERTAKING IS FOR ME A SPECTACLE
NOT EASY TO CONTEMPLATE.  WHETHER SUCH A COURSE MAY BE AN INEVITABLE
ULTIMATE CONSEQUENCE OF REYNOLDS V. SIMS IS A MATTER WHICH SHOULD BE
DETERMINED ONLY AFTER THE FULLEST AND MOST DELIBERATE CONSIDERATION ON
THE PART OF THIS COURT.  CF. BROWN V. BOARD OF EDUCATION, 347 U.S. 483,
495-496, AND 349 U.S. 294.  I DO NOT BELIEVE THAT ANY OF THE SUMMARY
DISPOSITIONS MADE IN REAPPORTIONMENT CASES FOLLOWING REYNOLDS V. SIMS,
SEE, E.G., WILLIAMS V. MOSS, 378 U.S. 558, FORECLOSES OR OBVIATES THE
NEED FOR SUCH A CONSIDERATION OF THIS FAR-REACHING QUESTION.  (FN2)
THE PARTIES TO A PARTICULAR LITIGATION SHOULD NOT BE PERMITTED BY
STIPULATION TO THRUST A FEDERAL COURT INTO THIS FOREIGN ACTIVITY. 

EXCEPT IN THE FOREGOING RESPECTS, I JOIN IN THE COURT'S DISPOSITION
OF THE MATTER. 

FN1  "(F)  IF REAPPORTIONMENT LEGISLATION IS NOT ENACTED BY JULY 1,
1965, AND IF A CONSTITUTIONAL CONVENTION SHALL FAIL TO REAPPORTION THE
GENERAL ASSEMBLY BY SEPTEMBER 1, 1965, THE COURT SHALL REAPPORTION THE
GENERAL ASSEMBLY SO AS TO COMPLY WITH THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION." 

FN2 THE DISTRICT COURT IN ITS ORDER OF AUGUST 3, 1964, DECLINED TO
PASS ON THIS QUESTION.  PARAGRAPH (4) OF THE ORDER READ: 

"(4)  NO ACTION IS TAKEN NOW UPON THE ALTERNATIVE REQUEST OF
PLAINTIFFS THAT THIS COURT ORDER THAT ELECTIONS OF SENATORS AND
REPRESENTATIVES BE ON A STATE-WIDE BASIS; AND JURISDICTION IS RETAINED
FOR THE ENTRY OF SUCH FURTHER ORDERS AS MAY BE NECESSARY AND PROPER
HEREAFTER."  234 F. SUPP. 191, 201. 
..END :











FIBREBOARD PAPER PRODUCTS CORP. V. NATIONAL LABOR RELATIONS BOARD 379
U.S. 203 


NO. 14.  ARGUED OCTOBER 19, 1964.  - DECIDED DECEMBER 14, 1964.  - 116
U.S. APP. D.C. 198, 322 F.2D 411, AFFIRMED. 


RESPONDENT UNION, THE BARGAINING REPRESENTATIVE FOR A UNIT OF
PETITIONER'S MAINTENANCE EMPLOYEES, GAVE TIMELY NOTICE OF ITS DESIRE TO
MODIFY THE EXISTING COLLECTIVE BARGAINING AGREEMENT.  FOUR DAYS BEFORE
THE EXPIRATION OF THE CONTRACT, PETITIONER INFORMED THE UNION THAT IT
HAD DETERMINED THAT SUBSTANTIAL SAVINGS COULD BE EFFECTED BY
CONTRACTING OUT THE MAINTENANCE WORK, AND THAT SINCE IT HAD MADE A
DEFINITE DECISION TO DO SO, NEGOTIATION OF A NEW AGREEMENT WOULD BE
POINTLESS.  ON THE CONTRACT EXPIRATION DATE, THE EMPLOYMENT OF
EMPLOYEES REPRESENTED BY THE UNION WAS TERMINATED AND AN INDEPENDENT
CONTRACTOR WAS ENGAGED TO DO THE MAINTENANCE WORK.  THE UNION FILED
UNFAIR LABOR PRACTICE CHARGES AGAINST THE EMPLOYER, ALLEGING VIOLATIONS
OF SECS. 8(A)(1), 8(A)(3) AND 8(A)(5) OF THE NATIONAL LABOR RELATIONS
ACT.  THE NATIONAL LABOR RELATIONS BOARD (NLRB) FOUND THAT, WHILE
PETITIONER'S MOTIVE WAS ECONOMIC RATHER THAN ANTIUNION, PETITIONER'S
FAILURE TO NEGOTIATE WITH THE UNION CONCERNING ITS DECISION TO CONTRACT
OUT THE MAINTENANCE WORK VIOLATED SEC. 8(A)(5) OF THE ACT, WHICH
REQUIRES BARGAINING WITH RESPECT TO "WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT."  THE NLRB ORDERED REINSTATEMENT OF THE
MAINTENANCE EMPLOYEES WITH BACK PAY, AND THE COURT OF APPEALS GRANTED
THE NLRB'S PETITION FOR ENFORCEMENT.  HELD: 

1.  THE TYPE OF "CONTRACTING OUT" INVOLVED IN THIS CASE - THE
REPLACEMENT OF EMPLOYEES IN THE EXISTING BARGAINING UNIT WITH THOSE OF
AN INDEPENDENT CONTRACTOR TO DO THE SAME WORK UNDER SIMILAR CONDITIONS
OF EMPLOYMENT - IT IS A STATUTORY SUBJECT OF COLLECTIVE BARGAINING
UNDER SEC. 8(D) OF THE ACT.  PP. 209-215. 

2.  THE NLRB DID NOT EXCEED ITS REMEDIAL POWERS IN ORDERING
PETITIONER TO REINSTATE ITS MAINTENANCE EMPLOYEES WITH BACK PAY AND TO
BARGAIN WITH THE UNION.  PP. 215-217. 

FIBREBOARD PAPER PRODUCTS CORP. V. NATIONAL LABOR RELATIONS BOARD ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE OBLIGATION OF AN EMPLOYER AND THE
REPRESENTATIVE OF HIS EMPLOYEES UNDER SEC. 8(A)(5), 8(D) AND 9(A) OF
THE NATIONAL LABOR RELATIONS ACT TO "CONFER IN GOOD FAITH WITH RESPECT
TO WAGES, HOURS, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT."  (FN1)
THE PRIMARY ISSUE IS WHETHER THE "CONTRACTING OUT" OF WORK BEING
PERFORMED BY EMPLOYEES IN THE BARGAINING UNIT IS A STATUTORY SUBJECT OF
COLLECTIVE BARGAINING UNDER THOSE SECTIONS. 

PETITIONER, FIBREBOARD PAPER PRODUCTS CORPORATION (THE COMPANY), HAS
A MANUFACTURING PLANT IN EMERYVILLE, CALIFORNIA.  SINCE 1937 THE EAST
BAY UNION MACHINISTS, LOCAL 1304, UNITED STEELWORKERS OF AMERICA, AFL
CIO (THE UNION) HAS BEEN THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A
UNIT OF THE COMPANY'S MAINTENANCE EMPLOYEES.  IN SEPTEMBER 1958, THE
UNION AND THE COMPANY ENTERED THE LATEST OF A SERIES OF COLLECTIVE
BARGAINING AGREEMENTS WHICH WAS TO EXPIRE ON JULY 31, 1959.  THE
AGREEMENT PROVIDED FOR AUTOMATIC RENEWAL FOR ANOTHER YEAR UNLESS ONE OF
THE CONTRACTING PARTIES GAVE 60 DAYS' NOTICE OF A DESIRE TO MODIFY OR
TERMINATE THE CONTRACT.  ON MAY 26, 1959, THE UNION GAVE TIMELY NOTICE
OF ITS DESIRE TO MODIFY THE CONTRACT AND SOUGHT TO ARRANGE A BARGAINING
SESSION WITH COMPANY REPRESENTATIVES.  ON JUNE 2, THE COMPANY
ACKNOWLEDGED RECEIPT OF THE UNION'S NOTICE AND STATED:  "WE WILL
CONTACT YOU AT A LATER DATE REGARDING A MEETING FOR THIS PURPOSE."  AS
REQUIRED BY THE CONTRACT, THE UNION SENT A LIST OF PROPOSED
MODIFICATIONS ON JUNE 15.  EFFORTS BY THE UNION TO SCHEDULE A
BARGAINING SESSION MET WITH NO SUCCESS UNTIL JULY 27, FOUR DAYS BEFORE
THE EXPIRATION OF THE CONTRACT, WHEN THE COMPANY NOTIFIED THE UNION OF
ITS DESIRE TO MEET. 

THE COMPANY, CONCERNED WITH THE HIGH COST OF ITS MAINTENANCE
OPERATION, HAD UNDERTAKEN A STUDY OF THE POSSIBILITY OF EFFECTING COST
SAVINGS BY ENGAGING AN INDEPENDENT CONTRACTOR TO DO THE MAINTENANCE
WORK.  AT THE JULY 27 MEETING, THE COMPANY INFORMED THE UNION THAT IT
HAD DETERMINED THAT SUBSTANTIAL SAVINGS COULD BE EFFECTED BY
CONTRACTING OUT THE WORK UPON EXPIRATION OF ITS COLLECTIVE BARGAINING
AGREEMENTS WITH THE VARIOUS LABOR ORGANIZATIONS REPRESENTING ITS
MAINTENANCE EMPLOYEES.  THE COMPANY DELIVERED TO THE UNION
REPRESENTATIVES A LETTER WHICH STATED IN PERTINENT PART: 

"FOR SOME TIME WE HAVE BEEN SERIOUSLY CONSIDERING THE QUESTION OF
LETTING OUT OUR EMERYVILLE MAINTENANCE WORK TO AN INDEPENDENT
CONTRACTOR, AND HAVE NOW REACHED A DEFINITE DECISION TO DO SO EFFECTIVE
AUGUST 1, 1959. 

"IN THESE CIRCUMSTANCES, WE ARE SURE YOU WILL REALIZE THAT
NEGOTIATION OF A NEW CONTRACT WOULD BE POINTLESS.  HOWEVER, IF YOU HAVE
ANY QUESTIONS, WE WILL BE GLAD TO DISCUSS THEM WITH YOU." 

AFTER SOME DISCUSSION OF THE COMPANY'S RIGHT TO ENTER A CONTRACT WITH
A THIRD PARTY TO DO THE WORK THEN BEING PERFORMED BY EMPLOYEES IN THE
BARGAINING UNIT, THE MEETING CONCLUDED WITH THE UNDERSTANDING THAT THE
PARTIES WOULD MEET AGAIN ON JULY 30. 

BY JULY 30, THE COMPANY HAD SELECTED FLUOR MAINTENANCE, INC., TO DO
THE MAINTENANCE WORK.  FLUOR HAD ASSURED THE COMPANY THAT MAINTENANCE
COSTS COULD BE CURTAILED BY REDUCING THE WORK FORCE, DECREASING FRINGE
BENEFITS AND OVERTIME PAYMENTS, AND BY PREPLANNING AND SCHEDULING THE
SERVICES TO BE PERFORMED.  THE CONTRACT PROVIDED THAT FLUOR WOULD: 

"FURNISH ALL LABOR, SUPERVISION AND OFFICE HELP REQUIRED FOR THE
PERFORMANCE OF MAINTENANCE WORK ...  AT THE EMERYVILLE PLANT OF OWNER
AS OWNER SHALL FROM TIME TO TIME ASSIGN TO CONTRACTOR DURING THE PERIOD
OF THIS CONTRACT; AND SHALL ALSO FURNISH SUCH TOOLS, SUPPLIES AND
EQUIPMENT IN CONNECTION THEREWITH AS OWNER SHALL ORDER FROM CONTRACTOR,
IT BEING UNDERSTOOD HOWEVER THAT OWNER SHALL ORDINARILY DO ITS OWN
PURCHASING OF TOOLS, SUPPLIES AND EQUIPMENT." 

THE CONTRACT FURTHER PROVIDED THAT THE COMPANY WOULD PAY FLUOR THE
COSTS OF THE OPERATION PLUS A FIXED FEE OF $2,250 PER MONTH. 

AT THE JULY 30 MEETING, THE COMPANY'S REPRESENTATIVE, IN EXPLAINING
THE DECISION TO CONTRACT OUT THE MAINTENANCE WORK, REMARKED THAT DURING
BARGAINING NEGOTIATIONS IN PREVIOUS YEARS THE COMPANY HAD ENDEAVORED TO
POINT OUT THROUGH THE USE OF CHARTS AND STATISTICAL INFORMATION "JUST
HOW EXPENSIVE AND COSTLY OUR MAINTENANCE WORK WAS AND HOW IT WAS
CREATING QUITE A TERRIFIC BURDEN UPON THE EMERYVILLE PLANT."  HE
FURTHER STATED THAT UNIONS REPRESENTING OTHER COMPANY EMPLOYEES "HAD
JOINED HANDS WITH MANAGEMENT IN AN EFFORT TO BRING ABOUT AN ECONOMICAL
AND EFFICIENT OPERATION," BUT "WE HAD NOT BEEN ABLE TO ATTAIN THAT IN
OUR DISCUSSIONS WITH THIS PARTICULAR LOCAL."  THE COMPANY ALSO
DISTRIBUTED A LETTER STATING THAT "SINCE WE WILL HAVE NO EMPLOYEES IN
THE BARGAINING UNIT COVERED BY OUR PRESENT AGREEMENT, NEGOTIATION OF A
NEW OR RENEWED AGREEMENT WOULD APPEAR TO US TO BE POINTLESS."  ON JULY
31, THE EMPLOYMENT OF THE MAINTENANCE EMPLOYEES REPRESENTED BY THE
UNION WAS TERMINATED AND FLUOR EMPLOYEES TOOK OVER.  THAT EVENING THE
UNION ESTABLISHED A PICKET LINE AT THE COMPANY'S PLANT. 

THE UNION FILED UNFAIR LABOR PRACTICE CHARGES AGAINST THE COMPANY,
ALLEGING VIOLATIONS OF SECS. 8(A)(1), 8(A)(3) AND 8(A)(5).  AFTER
HEARINGS WERE HELD UPON A COMPLAINT ISSUED BY THE NATIONAL LABOR
RELATIONS BOARD'S REGIONAL DIRECTOR, THE TRIAL EXAMINER FILED AN
INTERMEDIATE REPORT RECOMMENDING DISMISSAL OF THE COMPLAINT.  THE BOARD
ACCEPTED THE RECOMMENDATION AND DISMISSED THE COMPLAINT.  130 N.L.B.
1558. 

PETITIONS FOR RECONSIDERATION, FILED BY THE GENERAL COUNSEL AND THE
UNION, WERE GRANTED.  UPON RECONSIDERATION, THE BOARD ADHERED TO THE
TRIAL EXAMINER'S FINDING THAT THE COMPANY'S MOTIVE IN CONTRACTING OUT
ITS MAINTENANCE WORK WAS ECONOMIC RATHER THAN ANTIUNION BUT FOUND
NONETHELESS THAT THE COMPANY'S "FAILURE TO NEGOTIATE WITH  ...  THE
UNION CONCERNING ITS DECISION TO SUBCONTRACT ITS MAINTENANCE WORK
CONSTITUTED A VIOLATION OF SECTION 8(A)(5) OF THE ACT."  (FN2)  THIS
RULING WAS BASED UPON THE DOCTRINE ESTABLISHED IN TOWN & COUNTRY MFG.
CO., 136 N.L.R.B. 1022, 1027, ENFORCEMENT GRANTED, 316 F.2D 846 (C.A.
5TH CIR. 1963), THAT CONTRACTING OUT WORK, "ALBEIT FOR ECONOMIC
REASONS, IS A MATTER WITHIN THE STATUTORY PHRASE 'OTHER TERMS AND
CONDITIONS OF EMPLOYMENT' AND IS A MANDATORY SUBJECT OF COLLECTIVE
BARGAINING WITHIN THE MEANING OF SECTION 8(A)(5) OF THE ACT." 

THE BOARD ORDERED THE COMPANY TO REINSTITUTE THE MAINTENANCE
OPERATION PREVIOUSLY PERFORMED BY THE EMPLOYEES REPRESENTED BY THE
UNION, TO REINSTATE THE EMPLOYEES TO THEIR FORMER OR SUBSTANTIALLY
EQUIVALENT POSITIONS WITH BACK PAY COMPUTED FROM THE DATE OF THE
BOARD'S SUPPLEMENTAL DECISION, AND TO FULFILL ITS STATUTORY OBLIGATION
TO BARGAIN. 

ON APPEAL, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
GRANTED THE BOARD'S PETITION FOR ENFORCEMENT.  116 U.S. APP. D.C. 198,
322 F.2D 411.  BECAUSE OF THE IMPORTANCE OF THE ISSUES AND BECAUSE OF
AN ALLEGED CONFLICT AMONG THE COURTS OF APPEALS, (FN3) WE GRANTED
CERTIORARI LIMITED TO A CONSIDERATION OF THE FOLLOWING QUESTIONS: 

"1.  WAS PETITIONER REQUIRED BY THE NATIONAL LABOR RELATIONS ACT TO
BARGAIN WITH A UNION REPRESENTING SOME OF ITS EMPLOYEES ABOUT WHETHER
TO LET TO AN INDEPENDENT CONTRACTOR FOR LEGITIMATE BUSINESS REASONS THE
PERFORMANCE OF CERTAIN OPERATIONS IN WHICH THOSE EMPLOYEES HAD BEEN
ENGAGED? 

"3.  WAS THE BOARD, IN A CASE INVOLVING ONLY A REFUSAL TO BARGAIN,
EMPOWERED TO ORDER THE RESUMPTION OF OPERATIONS WHICH HAD BEEN
DISCONTINUED FOR LEGITIMATE BUSINESS REASONS AND REINSTATEMENT WITH
BACK PAY TO THE INDIVIDUALS FORMERLY EMPLOYED THEREIN?" 

WE AGREE WITH THE COURT OF APPEALS THAT, ON THE FACTS OF THIS CASE,
THE "CONTRACTING OUT" OF THE WORK PREVIOUSLY PERFORMED BY MEMBERS OF AN
EXISTING BARGAINING UNIT IS A SUBJECT ABOUT WHICH THE NATIONAL LABOR
RELATIONS ACT REQUIRES EMPLOYERS AND THE REPRESENTATIVES OF THEIR
EMPLOYEES TO BARGAIN COLLECTIVELY.  WE ALSO AGREE WITH THE COURT OF
APPEALS THAT THE BOARD DID NOT EXCEED ITS REMEDIAL POWERS IN DIRECTING
THE COMPANY TO RESUME ITS MAINTENANCE OPERATIONS, REINSTATE THE
EMPLOYEES WITH BACK PAY, AND BARGAIN WITH THE UNION. 

                     I. 

SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER "TO REFUSE TO BARGAIN
COLLECTIVELY WITH THE REPRESENTATIVES OF HIS EMPLOYEES."  COLLECTIVE
BARGAINING IS DEFINED IN SEC. 8(D) AS: 

"THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT." 

"READ TOGETHER, THESE PROVISIONS ESTABLISH THE OBLIGATION OF THE
EMPLOYER AND THE REPRESENTATIVE OF ITS EMPLOYEES TO BARGAIN WITH EACH
OTHER IN GOOD FAITH WITH RESPECT TO 'WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT  ...  .'  THE DUTY IS LIMITED TO THOSE
SUBJECTS, AND WITHIN THAT AREA NEITHER PARTY IS LEGALLY OBLIGATED TO
YIELD.  LABOR BOARD V. AMERICAN INS. CO., 343 U.S. 395.  AS TO OTHER
MATTERS, HOWEVER, EACH PARTY IS FREE TO BARGAIN OR NOT TO BARGAIN  ...
."  LABOR BOARD V. WOOSTER DIV. OF BORG-WARNER CORP., 356 U.S. 342,
349.  BECAUSE OF THE LIMITED GRANT OF CERTIORARI, WE ARE CONCERNED HERE
ONLY WITH WHETHER THE SUBJECT UPON WHICH THE EMPLOYER ALLEGEDLY REFUSED
TO BARGAIN - CONTRACTING OUT OF PLANT MAINTENANCE WORK PREVIOUSLY
PERFORMED BY EMPLOYEES IN THE BARGAINING UNIT, WHICH THE EMPLOYEES WERE
CAPABLE OF CONTINUING TO PERFORM - IS COVERED BY THE PHRASE "TERMS AND
CONDITIONS OF EMPLOYMENT" WITHIN THE MEANING OF SEC. 8(D). 

THE SUBJECT MATTER OF THE PRESENT DISPUTE IS WELL WITHIN THE LITERAL
MEANING OF THE PHRASE "TERMS AND CONDITIONS OF EMPLOYMENT."  SEE ORDER
OF RAILROAD TELEGRAPHERS V. CHICAGO & N.W.R. CO., 362 U.S. 330.  A
STIPULATION WITH RESPECT TO THE CONTRACTING OUT OF WORK PERFORMED BY
MEMBERS OF THE BARGAINING UNIT MIGHT APPROPRIATELY BE CALLED A
"CONDITION OF EMPLOYMENT."  THE WORDS EVEN MORE PLAINLY COVER
TERMINATION OF EMPLOYMENT WHICH, AS THE FACTS OF THIS CASE INDICATE,
NECESSARILY RESULTS FROM THE CONTRACTING OUT OF WORK PERFORMED BY
MEMBERS OF THE ESTABLISHED BARGAINING UNIT. 

THE INCLUSION OF "CONTRACTING OUT" WITHIN THE STATUTORY SCOPE OF
COLLECTIVE BARGAINING ALSO SEEMS WELL DESIGNED TO EFFECTUATE THE
PURPOSES OF THE NATIONAL LABOR RELATIONS ACT.  ONE OF THE PRIMARY
PURPOSES OF THE ACT IS TO PROMOTE THE PEACEFUL SETTLEMENT OF INDUSTRIAL
DISPUTES BY SUBJECTING LABOR-MANAGEMENT CONTROVERSIES TO THE MEDIATORY
INFLUENCE OF NEGOTIATION.  (FN4)  THE ACT WAS FRAMED WITH AN AWARENESS
THAT REFUSALS TO CONFER AND NEGOTIATE HAD BEEN ONE OF THE MOST PROLIFIC
CAUSES OF INDUSTRIAL STRIFE.  LABOR BOARD V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1, 42-43.  TO HOLD, AS THE BOARD HAS DONE, THAT
CONTRACTING OUT IS A MANDATORY SUBJECT OF COLLECTIVE BARGAINING WOULD
PROMOTE THE FUNDAMENTAL PURPOSE OF THE ACT BY BRINGING A PROBLEM OF
VITAL CONCERN TO LABOR AND MANAGEMENT WITHIN THE FRAMEWORK ESTABLISHED
BY CONGRESS AS MOST CONDUCIVE TO INDUSTRIAL PEACE. 

THE CONCLUSION THAT "CONTRACTING OUT' IS A STATUTORY SUBJECT OF
COLLECTIVE BARGAINING IS FURTHER REINFORCED BY INDUSTRIAL PRACTICES IN
THIS COUNTRY.  WHILE NOT DETERMINATIVE, IT IS APPROPRIATE TO LOOK TO
INDUSTRIAL BARGAINING PRACTICES IN APPRAISING THE PROPRIETY OF
INCLUDING A PARTICULAR SUBJECT WITHIN THE SCOPE OF MANDATORY
BARGAINING.  (FN5)  LABOR BOARD V. AMERICAN NAT. INS. CO., 343 U.S.
395, 408.  INDUSTRIAL EXPERIENCE IS NOT ONLY REFLECTIVE OF THE
INTERESTS OF LABOR AND MANAGEMENT IN THE SUBJECT MATTER BUT IT IS ALSO
INDICATIVE OF THE AMENABILITY OF SUCH SUBJECTS TO THE COLLECTIVE
BARGAINING PROCESS.  EXPERIENCE ILLUSTRATES THAT CONTRACTING OUT IN ONE
FORM OR ANOTHER HAS BEEN BROUGHT, WIDELY AND SUCCESSFULLY, WITHIN THE
COLLECTIVE BARGAINING FRAMEWORK.  (FN6)  PROVISIONS RELATING TO
CONTRACTING OUT EXIST IN NUMEROUS COLLECTIVE BARGAINING AGREEMENTS
(FN7) AND "CONTRACTING OUT WORK IS THE BASIS OF MANY GRIEVANCES; AND
THAT TYPE OF CLAIM IS GRIST IN THE MILLS OF THE ARBITRATORS."  UNITED
STEELWORKERS V. WARRIOR & GULF NAV. CO., 363 U.S. 574, 584. 

THE SITUATION HERE IS NOT UNLIKE THAT PRESENTED IN LOCAL 24,
TEAMSTERS UNION V. OLIVER, 358 U.S. 283, WHERE WE HELD THAT CONDITIONS
IMPOSED UPON CONTRACTING OUT WORK TO PREVENT POSSIBLE CURTAILMENT OF
JOBS AND THE UNDERMINING OF CONDITIONS OF EMPLOYMENT FOR MEMBERS OF THE
BARGAINING UNIT CONSTITUTED A STATUTORY SUBJECT OF COLLECTIVE
BARGAINING.  THE ISSUE IN THAT CASE WAS WHETHER STATE ANTITRUST LAWS
COULD BE APPLIED TO A PROVISION OF A COLLECTIVE BARGAINING AGREEMENT
WHICH FIXED THE MINIMUM RENTAL TO BE PAID BY THE EMPLOYER MOTOR CARRIER
WHO LEASED VEHICLES TO BE DRIVEN BY THEIR OWNERS RATHER THAN THE
CARRIER'S EMPLOYEES.  WE HELD THAT THE AGREEMENT WAS UPON A SUBJECT
MATTER AS TO WHICH FEDERAL LAW DIRECTED THE PARTIES TO BARGAIN AND
HENCE THAT STATE ANTITRUST LAWS COULD NOT BE APPLIED TO PREVENT THE
EFFECTUATION OF THE AGREEMENT.  WE POINTED OUT THAT THE AGREEMENT WAS
A:    "DIRECT FRONTAL ATTACK UPON A PROBLEM THOUGHT TO THREATEN THE
MAINTENANCE OF THE BASIC WAGE STRUCTURE ESTABLISHED BY THE COLLECTIVE
BARGAINING CONTRACT.  THE INADEQUACY OF A RENTAL WHICH MEANS THAT THE
OWNER MAKES UP HIS EXCESS COSTS FROM HIS DRIVER'S WAGES NOT ONLY
CLEARLY BEARS A CLOSE RELATION TO LABOR'S EFFORTS TO IMPROVE WORKING
CONDITIONS BUT IS IN FACT OF VITAL CONCERN TO THE CARRIER'S EMPLOYED
DRIVERS; AN INADEQUATE RENTAL MIGHT MEAN THE PROGRESSIVE CURTAILMENT OF
JOBS THROUGH WITHDRAWAL OF MORE AND MORE CARRIER-OWNED VEHICLES FROM
SERVICE."  ID., AT 294. 

THUS, WE CONCLUDED THAT SUCH A MATTER IS A SUBJECT OF MANDATORY
BARGAINING UNDER SEC. 8(D).  ID., AT 294-295.  THE ONLY DIFFERENCE
BETWEEN THAT CASE AND THE ONE AT HAND IS THAT THE WORK OF THE EMPLOYEES
IN THE BARGAINING UNIT WAS LET OUT PIECEMEAL IN OLIVER, WHEREAS HERE
THE WORK OF THE ENTIRE UNIT HAS BEEN CONTRACTED OUT.  IN REACHING THE
CONCLUSION THAT THE SUBJECT MATTER IN OLIVER WAS A MANDATORY SUBJECT OF
COLLECTIVE BARGAINING, WE CITED WITH APPROVAL TIMKEN ROLLER BEARING
CO., 70 N.L.R.B. 500, 518, ENFORCEMENT DENIED ON OTHER GROUNDS, 161
F.2D 949 (C.A. 6TH CIR. 1947), WHERE THE BOARD IN A SITUATION FACTUALLY
SIMILAR TO THE PRESENT CASE HELD THAT SECS. 8(A)(5) AND 9(A) REQUIRED
THE EMPLOYER TO BARGAIN ABOUT CONTRACTING OUT WORK THEN BEING PERFORMED
BY MEMBERS OF THE BARGAINING UNIT. 

THE FACTS OF THE PRESENT CASE ILLUSTRATE THE PROPRIETY OF SUBMITTING
THE DISPUTE TO COLLECTIVE NEGOTIATION.  THE COMPANY'S DECISION TO
CONTRACT OUT THE MAINTENANCE WORK DID NOT ALTER THE COMPANY'S BASIC
OPERATION.  THE MAINTENANCE WORK STILL HAD TO BE PERFORMED IN THE
PLANT.  NO CAPITAL INVESTMENT WAS CONTEMPLATED; THE COMPANY MERELY
REPLACED EXISTING EMPLOYEES WITH THOSE OF AN INDEPENDENT CONTRACTOR TO
DO THE SAME WORK UNDER SIMILAR CONDITIONS OF EMPLOYMENT.  THEREFORE, TO
REQUIRE THE EMPLOYER TO BARGAIN ABOUT THE MATTER WOULD NOT
SIGNIFICANTLY ABRIDGE HIS FREEDOM TO MANAGE THE BUSINESS. 

THE COMPANY WAS CONCERNED WITH THE HIGH COST OF ITS MAINTENANCE
OPERATION.  IT WAS INDUCED TO CONTRACT OUT THE WORK BY ASSURANCES FROM
INDEPENDENT CONTRACTORS THAT ECONOMIES COULD BE DERIVED BY REDUCING THE
WORK FORCE, DECREASING FRINGE BENEFITS, AND ELIMINATING OVERTIME
PAYMENTS.  THESE HAVE LONG BEEN REGARDED AS MATTERS PECULIARLY SUITABLE
FOR RESOLUTION WITHIN THE COLLECTIVE BARGAINING FRAMEWORK, AND
INDUSTRIAL EXPERIENCE DEMONSTRATES THAT COLLECTIVE NEGOTIATION HAS BEEN
HIGHLY SUCCESSFUL IN ACHIEVING PEACEFUL ACCOMMODATION OF THE
CONFLICTING INTERESTS.  YET, IT IS CONTENDED THAT WHEN AN EMPLOYER CAN
EFFECT COST SAVINGS IN THESE RESPECTS BY CONTRACTING THE WORK OUT,
THERE IS NO NEED TO ATTEMPT TO ACHIEVE SIMILAR ECONOMIES THROUGH
NEGOTIATION WITH EXISTING EMPLOYEES OR TO PROVIDE THEM WITH AN
OPPORTUNITY TO NEGOTIATE A MUTUALLY ACCEPTABLE ALTERNATIVE.  THE SHORT
ANSWER IS THAT, ALTHOUGH IT IS NOT POSSIBLE TO SAY WHETHER A
SATISFACTORY SOLUTION COULD BE REACHED, NATIONAL LABOR POLICY IS
FOUNDED UPON THE CONGRESSIONAL DETERMINATION THAT THE CHANCES ARE GOOD
ENOUGH TO WARRANT SUBJECTING SUCH ISSUES TO THE PROCESS OF COLLECTIVE
NEGOTIATION. 

THE APPROPRIATENESS OF THE COLLECTIVE BARGAINING PROCESS FOR
RESOLVING SUCH ISSUES WAS APPARENTLY RECOGNIZED BY THE COMPANY.  IN
EXPLAINING ITS DECISION TO CONTRACT OUT THE MAINTENANCE WORK, THE
COMPANY POINTED OUT THAT IN THE SAME PLANT OTHER UNIONS "HAD JOINED
HANDS WITH MANAGEMENT IN AN EFFORT TO BRING ABOUT AN ECONOMICAL AND
EFFICIENT OPERATION," BUT "WE HAD NOT BEEN ABLE TO ATTAIN THAT IN OUR
DISCUSSIONS WITH THIS PARTICULAR LOCAL."  ACCORDINGLY, BASED ON PAST
BARGAINING EXPERIENCE WITH THIS UNION, THE COMPANY UNILATERALLY
CONTRACTED OUT THE WORK.  WHILE "THE ACT DOES NOT ENCOURAGE A PARTY TO
ENGAGE IN FRUITLESS MARATHON DISCUSSIONS AT THE EXPENSE OF FRANK
STATEMENT AND SUPPORT OF HIS POSITION," LABOR BOARD V. AMERICAN NAT.
INS. CO., 343 U.S. 395, 404, IT AT LEAST DEMANDS THAT THE ISSUE BE
SUBMITTED TO THE MEDIATORY INFLUENCE OF COLLECTIVE NEGOTIATIONS.  AS
THE COURT OF APPEALS POINTED OUT, "IT IS NOT NECESSARY THAT IT BE
LIKELY OR PROBABLE THAT THE UNION WILL YIELD OR SUPPLY A FEASIBLE
SOLUTION BUT RATHER THAT THE UNION BE AFFORDED AN OPPORTUNITY TO MEET
MANAGEMENT'S LEGITIMATE COMPLAINTS THAT ITS MAINTENANCE WAS UNDULY
COSTLY." 

WE ARE THUS NOT EXPANDING THE SCOPE OF MANDATORY BARGAINING TO HOLD,
AS WE DO NOW, THAT THE TYPE OF "CONTRACTING OUT" INVOLVED IN THIS CASE
THE REPLACEMENT OF EMPLOYEES IN THE EXISTING BARGAINING UNIT WITH
THOSE OF AN INDEPENDENT CONTRACTOR TO DO THE SAME WORK UNDER SIMILAR
CONDITIONS OF EMPLOYMENT - IS A STATUTORY SUBJECT OF COLLECTIVE
BARGAINING UNDER SEC. 8(D).  OUR DECISION NEED NOT AND DOES NOT
ENCOMPASS OTHER FORMS OF "CONTRACTING OUT" OR "SUBCONTRACTING" WHICH
ARISE DAILY IN OUR COMPLEX ECONOMY.  (FN8)

    II. 

THE ONLY QUESTION REMAINING IS WHETHER, UPON A FINDING THAT THE
COMPANY HAD REFUSED TO BARGAIN ABOUT A MATTER WHICH IS A STATUTORY
SUBJECT OF COLLECTIVE BARGAINING, THE BOARD WAS EMPOWERED TO ORDER THE
RESUMPTION OF MAINTENANCE OPERATIONS AND REINSTATEMENT WITH BACK PAY. 
WE BELIEVE THAT IT WAS SO EMPOWERED. 

LABOR PRACTICE HAS BEEN COMMITTED: 

"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  ...  ."  (FN9) 

THAT SECTION "CHARGES THE BOARD WITH THE TASK OF DEVISING REMEDIES TO
EFFECTUATE THE POLICIES OF THE ACT."  LABOR BOARD V. SEVEN-UP BOTTLING
CO., 344 U.S. 344, 346.  THE BOARD'S POWER IS A BROAD DISCRETIONARY
ONE, SUBJECT TO LIMITED JUDICIAL REVIEW.  IBID.  "THE RELATION OF
REMEDY TO POLICY IS PECULIARLY A MATTER FOR ADMINISTRATIVE COMPETENCE
...  ."  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194.  "IN
FASHIONING REMEDIES TO UNDO THE EFFECTS OF VIOLATIONS OF THE ACT, THE
BOARD MUST DRAW ON ENLIGHTENMENT GAINED FROM EXPERIENCE."  LABOR BOARD
V. SEVEN-UP BOTTLING CO., 344 U.S. 344, 346.  THE BOARD'S ORDER WILL
NOT BE DISTURBED "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 ELEC.  & POWER CO. V.
LABOR BOARD, 319 U.S. 533, 540.  SUCH A SHOWING HAS NOT BEEN MADE IN
THIS CASE. 

THERE HAS BEEN NO SHOWING THAT THE BOARD'S ORDER RESTORING THE STATUS
QUO ANTE TO INSURE MEANINGFUL BARGAINING IS NOT WELL DESIGNED TO
PROMOTE THE POLICIES OF THE ACT.  NOR IS THERE EVIDENCE WHICH WOULD
JUSTIFY DISTURBING THE BOARD'S CONCLUSION THAT THE ORDER WOULD NOT
IMPOSE AN UNDUE OR UNFAIR BURDEN ON THE COMPANY.  (FN10) 

IT IS ARGUED, NONETHELESS, THAT THE AWARD EXEEEDS THE BOARD'S POWERS
UNDER SEC. 10(C) IN THAT IT INFRINGES THE PROVISION THAT "NO ORDER OF
THE BOARD SHALL REQUIRE THE REINSTATEMENT OF ANY INDIVIDUAL AS AN
EMPLOYEE WHO HAS BEEN SUSPENDED OR DISCHARGED, OR THE PAYMENT TO HIM OF
ANY BACK PAY, IF SUCH INDIVIDUAL WAS SUSPENDED OR DISCHARGED FOR CAUSE
...  ."  THE LEGISLATIVE HISTORY OF THAT PROVISION INDICATES THAT IT
WAS DESIGNED TO PRECLUDE THE BOARD FROM REINSTATING AN INDIVIDUAL WHO
HAD BEEN DISCHARGED BECAUSE OF MISCONDUCT.  (FN11)  THERE IS NO
INDICATION, HOWEVER, THAT IT WAS DESIGNED TO CURTAIL THE BOARD'S POWER
IN FASHIONING REMEDIES WHERE THE LOSS OF EMPLOYMENT STEMS DIRECTLY FROM
AN UNFAIR LABOR PRACTICE AS IN THE CASE AT HAND. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  THE RELEVANT PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, ARE: 

"SEC. 8(A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER: 

     *         *         *         *         * 

"(5)  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A)  ...  . 

     *         *         *         *         * 

"(D)  FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS THE
PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT, OR ANY
QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN CONTRACT
INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY EITHER PARTY, BUT
SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR
REQUIRE THE MAKING OF A CONCESSION  ...  . 

     *         *         * *         * 

"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  ...  ." 

FN2  THE BOARD DID NOT DISTURB ITS ORIGINAL HOLDING THAT THE COMPANY
HAD NOT VIOLATED SEC. 8(A)(1) OR SEC. 8(A)(3), OR ITS HOLDING THAT THE
COMPANY HAD SATISFIED ITS OBLIGATION TO BARGAIN ABOUT TERMINATION PAY. 

FN3  LABOR BOARD V. ADAMS DAIRY, INC., 322 F.2D 553 (C.A. 8TH CIR.
1963), POST, P. 644. 

FN4  SEE DECLARATION OF POLICY SET FORTH IN SECS. 1 AND 101 OF THE
LABOR-MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 136, 29 U.S.C. SECS.
141, 151 (1958 ED.). 

FN5  SEE COX AND DUNLOP, REGULATION OF COLLECTIVE BARGAINING BY THE
NATIONAL LABOR RELATIONS BOARD, 63 HARV. L. REV. 389, 405-406 (1950). 

FN6  SEE LUNDEN, SUBCONTRACTING CLAUSES IN MAJOR CONTRACTS, PTS.  1,
2, 84 MONTHLY LAB.  REV. 579, 715 (1961). 

FN7  A DEPARTMENT OF LABOR STUDY ANALYZED 1,687 COLLECTIVE BARGAINING
AGREEMENTS, WHICH APPLIED TO APPROXIMATELY 7,500,000 WORKERS (ABOUT ONE
HALF OF THE ESTIMATED WORK FORCE COVERED BY COLLECTIVE BARGAINING
AGREEMENTS).  AMONG THE AGREEMENTS STUDIED, APPROXIMATELY ONE-FOURTH
(378) CONTAINED SOME FORM OF A LIMITATION ON SUBCONTRACTING.  LUNDEN,
SUPRA, AT 581. 

FN8  AS THE SOLICITOR GENERAL POINTS OUT, THE TERMS "CONTRACTING OUT"
AND "SUBCONTRACTING" HAVE NO PRECISE MEANING.  THEY ARE USED TO
DESCRIBE A VARIETY OF BUSINESS ARRANGEMENTS ALTOGETHER DIFFERENT FROM
THAT INVOLVED IN THIS CASE.  FOR A DISCUSSION OF THE VARIOUS TYPES OF
"CONTRACTING OUT" OR "SUBCONTRACTING" ARRANGEMENTS, SEE BRIEF FOR
RESPONDENT, PP. 13-17; BRIEF FOR ELECTRONIC INDUSTRIES ASSOCIATION AS
AMICUS CURIAE, PP. 5-10. 

FN9  SECTION 10(C) PROVIDES IN PERTINENT PART:  "IF UPON THE
PREPONDERANCE OF THE TESTIMONY TAKEN THE BOARD SHALL BE OF THE OPINION
THAT ANY PERSON NAMED IN THE COMPLAINT HAS ENGAGED IN OR IS ENGAGING IN
ANY SUCH UNFAIR LABOR PRACTICE, THEN THE BOARD SHALL STATE ITS FINDINGS
OF FACT AND SHALL ISSUE AND CAUSE TO BE SERVED ON SUCH PERSON AN ORDER
REQUIRING SUCH PERSON TO CEASE AND DESIST FROM SUCH UNFAIR LABOR
PRACTICE, AND TO TAKE SUCH AFFIRMATIVE ACTION INCLUDING REINSTATEMENT
OF EMPLOYEES WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES
OF THIS ACT  ...  .  NO ORDER OF THE BOARD SHALL REQUIRE THE
REINSTATEMENT OF ANY INDIVIDUAL AS AN EMPLOYEE WHO HAS BEEN SUSPENDED
OR DISCHARGED, OR THE PAYMENT TO HIM OF ANY BACK PAY, IF SUCH
INDIVIDUAL WAS SUSPENDED OR DISCHARGED FOR CAUSE  ...  ." 

FN10  THE BOARD STATED:  "WE DO NOT BELIEVE THAT REQUIREMENT
RESTORING THE STATUS QUO ANTE IMPOSES AN UNDUE OR UNFAIR BURDEN ON
RESPONDENT.  THE RECORD SHOWS THAT THE MAINTENANCE OPERATION IS STILL
BEING PERFORMED IN MUCH THE SAME MANNER AS IT WAS PRIOR TO THE
SUBCONTRACTING ARRANGEMENT.  RESPONDENT HAS A CONTINUING NEED FOR THE
SERVICES OF MAINTENANCE EMPLOYEES; AND RESPONDENT'S SUBCONTRACT IS
TERMINABLE AT ANY TIME UPON 60 DAYS' NOTICE."  138 N.L.R.B., AT 555, N.
19. 

FN11  THE HOUSE REPORT STATES THAT THE PROVISION WAS "INTENDED TO PUT
AN END TO THE BELIEF, NOW WIDELY HELD AND CERTAINLY JUSTIFIED BY THE
BOARD'S DECISIONS, THAT ENGAGING IN UNION ACTIVITIES CARRIES WITH IT A
LICENSE TO LOAF, WANDER ABOUT THE PLANTS, REFUSE TO WORK, WASTE TIME,
BREAK RULES, AND ENGAGE IN INCIVILITIES AND OTHER DISORDERS AND
MISCONDUCT."  H.R. REP. NO. 245, 80TH CONG., 1ST SESS., 42 (1947).  THE
CONFERENCE REPORT NOTES THAT UNDER SEC. 10(C) "EMPLOYEES WHO ARE
DISCHARGED OR SUSPENDED FOR INTERFERING WITH OTHER EMPLOYEES AT WORK,
WHETHER OR NOT IN ORDER TO TRANSACT UNION BUSINESS, OR FOR ENGAGING IN
ACTIVITIES, WHETHER OR NOT UNION ACTIVITIES, CONTRARY TO SHOP RULES, OR
FOR COMMUNIST ACTIVITIES, OR FOR OTHER CAUSES INTERFERING WITH WAR
PRODUCTION  ...  WILL NOT BE ENTITLED TO REINSTATEMENT."  H.R. CONF.
REP. NO. 510, 80TH CONG., 1ST SESS., 55 (1947). 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
HARLAN JOIN, CONCURRING. 

VIEWED BROADLY, THE QUESTION BEFORE US STIRS LARGE ISSUES.  THE COURT
PURPORTS TO LIMIT ITS DECISION TO "THE FACTS OF THIS CASE."  BUT THE
COURT'S OPINION RADIATES IMPLICATIONS OF SUCH DISTURBING BREADTH THAT I
AM PERSUADED TO FILE THIS SEPARATE STATEMENT OF MY OWN VIEWS. 

MAKES IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO "REFUSE TO BARGAIN
COLLECTIVELY WITH THE REPRESENTATIVE OF THE EMPLOYEES."  COLLECTIVE
BARGAINING IS DEFINED IN SEC. 8(D) AS: 

"THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT." 

THE QUESTION POSED IS WHETHER THE PARTICULAR DECISION SOUGHT TO BE
MADE UNILATERALLY BY THE EMPLOYER IN THIS CASE IS A SUBJECT OF
MANDATORY COLLECTIVE BARGAINING WITHIN THE STATUTORY PHRASE "TERMS AND
CONDITIONS OF EMPLOYMENT."  THAT IS ALL THE COURT DECIDES.  (FN1)  THE
COURT MOST ASSUREDLY DOES NOT DECIDE THAT EVERY MANAGERIAL DECISION
WHICH NECESSARILY TERMINATES AN INDIVIDUAL'S EMPLOYMENT IS SUBJECT TO
THE DUTY TO BARGAIN.  NOR DOES THE COURT DECIDE THAT SUBCONTRACTING
DECISIONS ARE AS A GENERAL MATTER SUBJECT TO THAT DUTY.  THE COURT
HOLDS NO MORE THAN THAT THIS EMPLOYER'S DECISION TO SUBCONTRACT THIS
WORK, INVOLVING "THE REPLACEMENT OF EMPLOYEES IN THE EXISTING
BARGAINING UNIT WITH THOSE OF AN INDEPENDENT CONTRACTOR TO DO THE SAME
WORK UNDER SIMILAR CONDITIONS OF EMPLOYMENT," IS SUBJECT TO THE DUTY TO
BARGAIN COLLECTIVELY.  WITHIN THE NARROW LIMITATIONS IMPLICIT IN THE
SPECIFIC FACTS OF THIS CASE, I AGREE WITH THE COURT'S DECISION. 
FIBREBOARD HAD PERFORMED ITS MAINTENANCE WORK AT ITS EMERYVILLE
MANUFACTURING PLANT THROUGH ITS OWN EMPLOYEES, WHO WERE REPRESENTED BY
A LOCAL OF THE UNITED STEELWORKERS.  ESTIMATING THAT SOME $225,000
COULD BE SAVED ANNUALLY BY DISPENSING WITH INTERNAL MAINTENANCE, THE
COMPANY CONTRACTED OUT THIS WORK, INFORMING THE UNION THAT THERE WOULD
BE NO POINT IN NEGOTIATING A NEW CONTRACT SINCE THE EMPLOYEES IN THE
BARGAINING UNIT HAD BEEN REPLACED BY EMPLOYEES OF THE INDEPENDENT
CONTRACTOR, FLUOR.  MAINTENANCE WORK CONTINUED TO BE PERFORMED WITHIN
THE PLANT, WITH THE WORK ULTIMATELY SUPERVISED BY THE COMPANY'S
OFFICIALS AND "FUNCTIONING AS AN INTEGRAL PART" OF THE COMPANY.  FLUOR
WAS PAID THE COST OF OPERATIONS PLUS $2,250 MONTHLY.  THE SAVINGS IN
COSTS ANTICIPATED FROM THE ARRANGEMENT DERIVED LARGELY FROM THE
ELIMINATION OF FRINGE BENEFITS, ADJUSTMENTS IN WORK SCHEDULING,
ENFORCEMENT OF STRICTER WORK QUOTAS, AND CLOSE SUPERVISION OF THE NEW
PERSONNEL.  UNDER THE COST-PLUS ARRANGEMENT, FIBREBOARD REMAINED
RESPONSIBLE FOR WHATEVER MAINTENANCE COSTS WERE ACTUALLY INCURRED.  ON
THESE FACTS, I WOULD AGREE THAT THE EMPLOYER HAD A DUTY TO BARGAIN
COLLECTIVELY CONCERNING THE REPLACEMENT OF HIS INTERNAL MAINTENANCE
STAFF BY EMPLOYEES OF THE INDEPENDENT CONTRACTOR. 

THE BASIC QUESTION IS WHETHER THE EMPLOYER FAILED TO "CONFER IN GOOD
FAITH WITH RESPECT TO  ... TERMS AND CONDITIONS OF EMPLOYMENT" IN
UNILATERALLY DECIDING TO SUBCONTRACT THIS WORK.  THIS QUESTION GOES TO
THE SCOPE OF THE EMPLOYER'S DUTY IN THE ABSENCE OF A COLLECTIVE
BARGAINING AGREEMENT.  (FN2)  IT IS TRUE, AS THE COURT'S OPINION POINTS
OUT, THAT INDUSTRIAL EXPERIENCE MAY BE USEFUL IN DETERMINING THE PROPER
SCOPE OF THE DUTY TO BARGAIN.  SEE LABOR BOARD V. AMERICAN NAT. INS.
CO., 343 U.S. 395, 408.  BUT DATA SHOWING THAT MANY LABOR CONTRACTS
REFER TO SUBCONTRACTING OR THAT SUBCONTRACTING GRIEVANCES ARE
FREQUENTLY REFERRED TO ARBITRATORS UNDER COLLECTIVE BARGAINING
AGREEMENTS, WHILE NOT WHOLLY IRRELEVANT, DO NOT HAVE MUCH REAL BEARING,
FOR SUCH DATA MAY INDICATE NO MORE THAN THAT THE PARTIES HAVE OFTEN
CONSIDERED IT MUTUALLY ADVANTAGEOUS TO BARGAIN OVER THESE ISSUES ON A
PERMISSIVE BASIS.  IN ANY EVENT, THE ULTIMATE QUESTION IS THE SCOPE OF
THE DUTY TO BARGAIN DEFINED BY THE STATUTORY LANGUAGE. 

IT IS IMPORTANT TO NOTE THAT THE WORDS OF THE STATUTE ARE WORDS OF
LIMITATION.  THE NATIONAL LABOR RELATIONS ACT DOES NOT SAY THAT THE
EMPLOYER AND EMPLOYEES ARE BOUND TO CONFER UPON ANY SUBJECT WHICH
INTERESTS EITHER OF THEM; THE SPECIFICATION OF WAGES, HOURS, AND OTHER
TERMS AND CONDITIONS OF EMPLOYMENT DEFINES A LIMITED CATEGORY OF ISSUES
SUBJECT TO COMPULSORY BARGAINING.  THE LIMITING PURPOSE OF THE
STATUTE'S LANGUAGE IS MADE CLEAR BY THE LEGISLATIVE HISTORY OF THE
PRESENT ACT.  AS ORIGINALLY PASSED, THE WAGNER ACT CONTAINED NO
DEFINITION OF THE DUTY TO BARGAIN COLLECTIVELY.  (FN3)  IN THE 1947
REVISION OF THE ACT, THE HOUSE BILL CONTAINED A DETAILED BUT LIMITED
LIST OF SUBJECTS OF THE DUTY TO BARGAIN, EXCLUDING ALL OTHERS.  (FN4)
IN CONFERENCE THE PRESENT LANGUAGE WAS SUBSTITUTED FOR THE HOUSE'S
DETAILED SPECIFICATION.  WHILE THE LANGUAGE THUS INCORPORATED IN THE
1947 LEGISLATION AS ENACTED IS NOT SO STRINGENT AS THAT CONTAINED IN
THE HOUSE BILL, IT NONETHELESS ADOPTS THE SAME BASIC APPROACH IN
SEEKING TO DEFINE A LIMITED CLASS OF BARGAINABLE ISSUES.  (FN5) 

THE PHRASE "CONDITIONS OF EMPLOYMENT" IS NO DOUBT SUSCEPTIBLE OF
DIVERSE INTERPRETATIONS.  AT THE EXTREME, THE PHRASE COULD BE CONSTRUED
TO APPLY TO ANY SUBJECT WHICH IS INSISTED UPON AS A PREREQUISITE FOR
CONTINUED EMPLOYMENT.  SUCH AN INTERPRETATION, WHICH WOULD IN EFFECT
PLACE THE COMPULSION OF THE BOARD BEHIND ANY AND ALL BARGAINING
DEMANDS, WOULD BE CONTRARY TO THE INTENT OF CONGRESS, AS REFLECTED IN
THIS LEGISLATIVE HISTORY.  YET THERE ARE PASSAGES IN THE COURT'S
OPINION TODAY WHICH SUGGEST JUST SUCH AN EXPANSIVE INTERPRETATION, FOR
THE COURT'S OPINION SEEMS TO IMPLY THAT ANY ISSUE WHICH MAY REASONABLY
DIVIDE AN EMPLOYER AND HIS EMPLOYEES MUST BE THE SUBJECT OF COMPULSORY
COLLECTIVE BARGAINING.  (FN6) 

ONLY A NARROWER CONCEPT OF "CONDITIONS OF EMPLOYMENT" WILL SERVE THE
STATUTORY PURPOSE OF DELINEATING A LIMITED CATEGORY OF ISSUES WHICH ARE
SUBJECT TO THE DUTY TO BARGAIN COLLECTIVELY.  SEEKING TO EFFECT THIS
PURPOSE, AT LEAST SEVEN CIRCUITS HAVE INTERPRETED THE STATUTORY
LANGUAGE TO EXCLUDE VARIOUS KINDS OF MANAGEMENT DECISIONS FROM THE
SCOPE OF THE DUTY TO BARGAIN.  (FN7)  IN COMMON PARLANCE, THE
CONDITIONS OF A PERSON'S EMPLOYMENT ARE MOST OBVIOUSLY THE VARIOUS
PHYSICAL DIMENSIONS OF HIS WORKING ENVIRONMENT.  WHAT ONE'S HOURS ARE
TO BE, WHAT AMOUNT OF WORK IS EXPECTED DURING THOSE HOURS, WHAT PERIODS
OF RELIEF ARE AVAILABLE, WHAT SAFETY PRACTICES ARE OBSERVED, WOULD ALL
SEEM CONDITIONS OF ONE'S EMPLOYMENT.  THERE ARE OTHER LESS TANGIBLE BUT
NO LESS IMPORTANT CHARACTERISTICS OF A PERSON'S EMPLOYMENT WHICH MIGHT
ALSO BE DEEMED "CONDITIONS" - MOST PROMINENTLY THE CHARACTERISTIC
INVOLVED IN THIS CASE, THE SECURITY OF ONE'S EMPLOYMENT.  ON ONE VIEW
OF THE MATTER, IT CAN BE ARGUED THAT THE QUESTION WHETHER THERE IS TO
BE A JOB IS NOT A CONDITION OF EMPLOYMENT; THE QUESTION IS NOT ONE OF
IMPOSING CONDITIONS ON EMPLOYMENT, BUT THE MORE FUNDAMENTAL QUESTION
WHETHER THERE IS TO BE EMPLOYMENT AT ALL.  HOWEVER, IT IS CLEAR THAT
THE BOARD AND THE COURTS HAVE ON NUMEROUS OCCASIONS RECOGNIZED THAT
UNION DEMANDS FOR PROVISIONS LIMITING AN EMPLOYER'S POWER TO DISCHARGE
EMPLOYEES ARE MANDATORILY BARGAINABLE.  THUS, FREEDOM FROM
DISCRIMINATORY DISCHARGE, (FN8) SENIORITY RIGHTS, (FN9) THE IMPOSITION
OF A COMPULSORY RETIREMENT AGE, (FN10) HAVE BEEN RECOGNIZED AS SUBJECTS
UPON WHICH AN EMPLOYER MUST BARGAIN, ALTHOUGH ALL OF THESE CONCERN THE
VERY EXISTENCE OF THE EMPLOYMENT ITSELF. 

WHILE EMPLOYMENT SECURITY HAS THUS PROPERLY BEEN RECOGNIZED IN
VARIOUS CIRCUMSTANCES AS A CONDITION OF EMPLOYMENT, IT SURELY DOES NOT
FOLLOW THAT EVERY DECISION WHICH MAY AFFECT JOB SECURITY IS A SUBJECT
OF COMPULSORY COLLECTIVE BARGAINING.  MANY DECISIONS MADE BY MANAGEMENT
AFFECT THE JOB SECURITY OF EMPLOYEES.  DECISIONS CONCERNING THE VOLUME
AND KIND OF ADVERTISING EXPENDITURES, PRODUCT DESIGN, THE MANNER OF
FINANCING, AND SALES, ALL MAY BEAR UPON THE SECURITY OF THE WORKERS'
JOBS.  YET IT IS HARDLY CONCEIVABLE THAT SUCH DECISIONS SO INVOLVE
"CONDITIONS OF EMPLOYMENT" THAT THEY MUST BE NEGOTIATED WITH THE
EMPLOYEES' BARGAINING REPRESENTATIVE. 

IN MANY OF THESE AREAS THE IMPACT OF A PARTICULAR MANAGEMENT DECISION
UPON JOB SECURITY MAY BE EXTREMELY INDIRECT AND UNCERTAIN, AND THIS
ALONE MAY BE SUFFICIENT REASON TO CONCLUDE THAT SUCH DECISIONS ARE NOT
"WITH RESPECT TO  ...  CONDITIONS OF EMPLOYMENT."  YET THERE ARE OTHER
AREAS WHERE DECISIONS BY MANAGEMENT MAY QUITE CLEARLY IMPERIL JOB
SECURITY, OR INDEED TERMINATE EMPLOYMENT ENTIRELY.  AN ENTERPRISE MAY
DECIDE TO INVEST IN LABOR-SAVING MACHINERY.  ANOTHER MAY RESOLVE TO
LIQUIDATE ITS ASSETS AND GO OUT OF BUSINESS.  NOTHING THE COURT HOLDS
TODAY SHOULD BE UNDERSTOOD AS IMPOSING A DUTY TO BARGAIN COLLECTIVELY
REGARDING SUCH MANAGERIAL DECISIONS, WHICH LIE AT THE CORE OF
ENTREPRENEURIAL CONTROL.  DECISIONS CONCERNING THE COMMITMENT OF
INVESTMENT CAPITAL AND THE BASIC SCOPE OF THE ENTERPRISE ARE NOT IN
THEMSELVES PRIMARILY ABOUT CONDITIONS OF EMPLOYMENT, THOUGH THE EFFECT
OF THE DECISION MAY BE NECESSARILY TO TERMINATE EMPLOYMENT.  IF, AS I
THINK CLEAR, THE PURPOSE OF SEC. 8(D) IS TO DESCRIBE A LIMITED AREA
SUBJECT TO THE DUTY OF COLLECTIVE BARGAINING, THOSE MANAGEMENT
DECISIONS WHICH ARE FUNDAMENTAL TO THE BASIC DIRECTION OF A CORPORATE
ENTERPRISE OR WHICH IMPINGE ONLY INDIRECTLY UPON EMPLOYMENT SECURITY
SHOULD BE EXCLUDED FROM THAT AREA. 

APPLYING THESE CONCEPTS TO THE CASE AT HAND, I DO NOT BELIEVE THAT AN
EMPLOYER'S SUBCONTRACTING PRACTICES ARE, AS A GENERAL MATTER, IN
THEMSELVES CONDITIONS OF EMPLOYMENT.  UPON ANY DEFINITION OF THE
STATUTORY TERMS SHORT OF THE MOST EXPANSIVE, SUCH PRACTICES ARE NOT
CONDITIONS - TANGIBLE OR INTANGIBLE - OF ANY PERSON'S EMPLOYMENT. 
(FN11)  THE QUESTION REMAINS WHETHER THIS PARTICULAR KIND OF
SUBCONTRACTING DECISION COMES WITHIN THE EMPLOYER'S DUTY TO BARGAIN. 
ON THE FACTS OF THIS CASE, I JOIN THE COURT'S JUDGMENT, BECAUSE ALL
THAT IS INVOLVED IS THE SUBSTITUTION OF ONE GROUP OF WORKERS FOR
ANOTHER TO PERFORM THE SAME TASK IN THE SAME PLANT UNDER THE ULTIMATE
CONTROL OF THE SAME EMPLOYER.  THE QUESTION WHETHER THE EMPLOYER MAY
DISCHARGE ONE GROUP OF WORKERS AND SUBSTITUTE ANOTHER FOR THEM IS
CLOSELY ANALOGOUS TO MANY OTHER SITUATIONS WITHIN THE TRADITIONAL
FRAMEWORK OF COLLECTIVE BARGAINING.  COMPULSORY RETIREMENT, LAYOFFS
ACCORDING TO SENIORITY, ASSIGNMENT OF WORK AMONG POTENTIAL ELIGIBLE
GROUPS WITHIN THE PLANT - ALL INVOLVE SIMILAR QUESTIONS OF DISCHARGE
AND WORK ASSIGNMENT, AND ALL HAVE BEEN RECOGNIZED AS SUBJECTS OF
COMPULSORY COLLECTIVE BARGAINING.  (FN12) 

ANALYTICALLY, THIS CASE IS NOT FAR FROM THAT WHICH WOULD BE PRESENTED
IF THE EMPLOYER HAD MERELY DISCHARGED ALL ITS EMPLOYEES AND REPLACED
THEM WITH OTHER WORKERS WILLING TO WORK ON THE SAME JOB IN THE SAME
PLANT WITHOUT THE VARIOUS FRINGE BENEFITS SO COSTLY TO THE COMPANY. 
WHILE SUCH A SITUATION MIGHT WELL BE CONSIDERED A SEC. 8(A)(3)
VIOLATION UPON A FINDING THAT THE EMPLOYER DISCRIMINATED AGAINST THE
DISCHARGED EMPLOYEES BECAUSE OF THEIR UNION AFFILIATION, IT WOULD BE
EQUALLY POSSIBLE TO REGARD THE EMPLOYER'S ACTION AS A UNILATERAL ACT
FRUSTRATING NEGOTIATION ON THE UNDERLYING QUESTIONS OF WORK SCHEDULING
AND REMUNERATION, AND SO AN EVASION OF ITS DUTY TO BARGAIN ON THESE
QUESTIONS, WHICH ARE CONCEDEDLY SUBJECT TO COMPULSORY COLLECTIVE
BARGAINING.  (FN13)  SIMILARLY, HAD THE EMPLOYER IN THIS CASE CHOSEN TO
BARGAIN WITH THE UNION ABOUT THE PROPOSED SUBCONTRACT, NEGOTIATIONS
WOULD HAVE INEVITABLY TURNED TO THE UNDERLYING QUESTIONS OF COST, WHICH
PROMPTED THE SUBCONTRACTING.   INSOFAR AS THE EMPLOYER FRUSTRATED
COLLECTIVE BARGAINING WITH RESPECT TO THESE CONCEDEDLY BARGAINING
ISSUES BY ITS UNILATERAL ACT OF SUBCONTRACTING THIS WORK, IT CAN
PROPERLY BE FOUND TO HAVE VIOLATED ITS STATUTORY DUTY UNDER SEC.
8(A)(5). 

THIS KIND OF SUBCONTRACTING FALLS SHORT OF SUCH LARGER
ENTREPRENEURIAL QUESTIONS AS WHAT SHALL BE PRODUCED, HOW CAPITAL SHALL
BE INVESTED IN FIXED ASSETS, OR WHAT THE BASIC SCOPE OF THE ENTERPRISE
SHALL BE.  IN MY VIEW, THE COURT'S DECISION IN THIS CASE HAS NOTHING TO
DO WITH WHETHER ANY ASPECTS OF THOSE LARGER ISSUES COULD UNDER ANY
CIRCUMSTANCES BE CONSIDERED SUBJECTS OF COMPULSORY COLLECTIVE
BARGAINING UNDER THE PRESENT LAW. 

I AM FULLY AWARE THAT IN THIS AREA OF AUTOMATION AND ONRUSHING
TECHNOLOGICAL CHANGE, NO PROBLEMS IN THE DOMESTIC ECONOMY ARE OF
GREATER CONCERN THAN THOSE INVOLVING JOB SECURITY AND EMPLOYMENT
STABILITY.  BECAUSE OF THE POTENTIALLY CRUEL IMPACT UPON THE LIVES AND
FORTUNES OF THE WORKING MEN AND WOMEN OF THE NATION, THESE PROBLEMS
HAVE UNDERSTANDABLY ENGAGED THE SOLICITOUS ATTENTION OF THE GOVERNMENT,
OF RESPONSIBLE PRIVATE BUSINESS, AND PARTICULARLY OF ORGANIZED LABOR. 
IT IS POSSIBLE THAT IN MEETING THESE PROBLEMS CONGRESS MAY EVENTUALLY
DECIDE TO GIVE ORGANIZED LABOR OR GOVERNMENT A FAR HEAVIER HAND IN
CONTROLLING WHAT UNTIL NOW HAVE BEEN CONSIDERED THE PREROGATIVES OF
PRIVATE BUSINESS MANAGEMENT.  THAT PATH WOULD MARK A SHARP DEPARTURE
FROM THE TRADITIONAL PRINCIPLES OF A FREE ENTERPRISE ECONOMY.  WHETHER
WE SHOULD FOLLOW IT IS, WITHIN CONSTITUTIONAL LIMITATIONS, FOR CONGRESS
TO CHOOSE.  BUT IT IS A PATH WHICH CONGRESS CERTAINLY DID NOT CHOOSE
WHEN IT ENACTED THE TAFT-HARTLEY ACT. 

FN1  EXCEPT FOR THE QUITE SEPARATE REMEDY ISSUE DISCUSSED IN PART II
OF THE COURT'S OPINION. 

FN2  THERE WAS A TIME WHEN ONE MIGHT HAVE TAKEN THE VIEW THAT THE
NATIONAL LABOR RELATIONS ACT GAVE THE BOARD AND THE COURTS NO POWER TO
DETERMINE THE SUBJECTS ABOUT WHICH THE PARTIES MUST BARGAIN - A VIEW
EXPRESSED BY SENATOR WALSH WHEN HE SAID THAT PUBLIC CONCERN ENDS AT THE
BARGAINING ROOM DOOR.  79 CONG. REC. 7659 (1935).  SEE COX AND DUNLOP,
REGULATION OF COLLECTIVE BARGAINING BY THE NATIONAL LABOR RELATIONS
BOARD, 63 HARV. L. REV. 389.  BUT TOO MUCH LAW HAS BEEN BUILT UPON A
CONTRARY ASSUMPTION FOR THIS VIEW ANY LONGER TO PREVAIL, AND I QUESTION
NEITHER THE POWER OF THE COURT TO DECIDE THIS ISSUE NOR THE PROPRIETY
OF ITS DOING SO. 

FN3  HOWEVER, IT DID NOT RECOGNIZE THAT THE PARTY DESIGNATED BY A
MAJORITY OF EMPLOYEES IN A BARGAINING UNIT SHALL BE THEIR EXCLUSIVE
REPRESENTATIVE "FOR THE PURPOSES OF COLLECTIVE BARGAINING IN RESPECT TO
RATES OF PAY, WAGES, HOURS OF EMPLOYMENT, OR OTHER CONDITIONS OF
EMPLOYMENT."  SEC. 9(A). 

FN4  H.R. 3020, 80TH CONG., 1ST SESS., SEC. 2(11)(B)(VI)(1947), IN I
LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, AT 166
167 (1948).  (HEREINAFTER LMRA.) 

FN5  THE CONFERENCE REPORT ACCOMPANYING THE BILL SAID THAT ALTHOUGH
THIS SECTION "DID NOT PRESCRIBE A PURELY OBJECTIVE TEST OF WHAT
CONSTITUTED COLLECTIVE BARGAINING, AS DID THE HOUSE BILL, IT HAD TO A
VERY SUBSTANTIAL EXTENT THE SAME EFFECT  ...  ."  I LMRA 538.  THOUGH
THIS STATEMENT REFERS TO THE ENTIRE SECTION, IT IS CLEAR FROM THE
CONTEXT THAT THE FOCUS OF ATTENTION WAS UPON THE PROCEDURES OF
COLLECTIVE BARGAINING RATHER THAN ITS SCOPE.    FN6  THE OPINION OF THE
COURT SEEMS TO ASSUME THAT THE ONLY ALTERNATIVE TO COMPULSORY
COLLECTIVE BARGAINING IS UNREMITTING ECONOMIC WARFARE.  BUT TO EXCLUDE
SUBJECTS FROM THE AMBIT OF COMPULSORY COLLECTIVE BARGAINING DOES NOT
PRECLUDE THE PARTIES FROM SEEKING NEGOTIATIONS ABOUT THEM ON A
PERMISSIVE BASIS.  AND THERE ARE LIMITATIONS UPON THE USE OF ECONOMIC
FORCE TO COMPEL CONCESSION UPON SUBJECTS WHICH ARE ONLY PERMISSIVELY
BARGAINABLE.  LABOR BOARD V. WOOSTER DIV. OF BORG-WARNER CORP., 356
U.S. 342. 

FN7  LABOR BOARD V. ADAMS DAIRY, 322 F.2D 553 (C.A. 8TH CIR. 1963);
LABOR BOARD V. NEW ENGLAND WEB, 309 F.2D 696 (C.A. 1ST CIR. 1962);
LABOR BOARD V. RAPID BINDERY, 293 F.2D 170 (C.A.2D CIR. 1961); JAYS
FOODS V. LABOR BOARD, 292 F.2D 317 (C.A. 7TH CIR. 1961); LABOR BOARD V.
LASSING, 284 F.2D 781 (C.A. 6TH CIR. 1960); MOUNT HOPE FINISHING CO. V.
LABOR BOARD, 211 F.2D 365 (C.A. 4TH CIR. 1954); LABOR BOARD V. HOUSTON
CHRONICLE, 211 F.2D 848 (C.A. 5TH CIR. 1954). 

FN8  LABOR BOARD V. BACHELDER, 120 F.2D 574 (C.A. 7TH CIR. 1941). 
SEE ALSO NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350. 

FN9  LABOR BOARD V. WESTINGHOUSE AIR BRAKE CO., 120 F.2D 1004 (C.A.
3D CIR. 1941). 

FN10  INLAND STEEL CO. V. LABOR BOARD, 170 F.2D 247 (C.A. 7TH CIR.
1948). 

FN11  AT LEAST FOUR CIRCUITS HAVE HELD THAT SUBCONTRACTING DECISIONS
ARE NOT SUBJECT TO THE DUTY TO BARGAIN.  LABOR BOARD V. ADAMS DAIRY,
322 F.2D 553 (C.A. 8TH CIR. 1963); JAYS FOODS V. LABOR BOARD, 292 F.2D
317 (C.A. 7TH CIR. 1961); LABOR BOARD V. LASSING, 284 F.2D 781 (C.A.
6TH CIR. 1960); LABOR BOARD V. HOUSTON CHRONICLE, 211 F.2D 848 (C.A.
5TH CIR. 1954). 

FN12  SEE NOTES 7, 8, AND 9, SUPRA. 

FN13  LABOR BOARD V. UNITED STATES AIR CONDITIONING CORP., 302 F.2D
280 (C.A. 1ST CIR. 1962); LABOR BOARD V. TAK TRAK, INC. 293 F.2D 270
(C.A. 9TH CIR. 1961).  CF. LABOR BOARD V. KATZ, 369 U.S. 736. 
..END :













FARMER V. ARABIAN AMERICAN OIL CO. 379 U.S. 227 


NO. 32.  ARGUED NOVEMBER 9-10, 1964 - DECIDED DECEMBER 14, 1964* - 324
F.2D 359, REVERSED. 

*TOGETHER WITH NO. 33, ARABIAN AMERICAN OIL CO. V. FARMER, ALSO ON
CERTIORARI TO THE SAME COURT. 


A DOCTOR FORMERLY EMPLOYED BY AN OIL COMPANY TO WORK IN SAUDI ARABIA
SUED FOR BREACH OF HIS EMPLOYMENT CONTRACT.  THE JURY FAILED TO AGREE
AND THE DISTRICT JUDGE GRANTED THE COMPANY'S MOTION FOR A DIRECTED
VERDICT.  COSTS OF MORE THAN $6,600 WERE TAXED AGAINST THE DOCTOR,
INCLUDING TRANSPORTATION EXPENSES OF WITNESSES FROM ARABIA AND DAILY
TRANSCRIPTS REQUESTED BY COMPANY COUNSEL.   THE COURT OF APPEALS
REVERSED, ON THE GROUND THAT A VERDICT SHOULD NOT HAVE BEEN DIRECTED,
AND REMANDED FOR A NEW TRIAL.  ON REMAND THE CASE WAS DISMISSED BECAUSE
OF THE DOCTOR'S INABILITY TO POST A $6,000 BOND AS SECURITY FOR COSTS. 
THE COURT OF APPEALS AGAIN REVERSED, AND INDICATED THAT THE COSTS
ALREADY TAXED WERE EXORBITANT.  AT A SECOND TRIAL THE JURY FOUND FOR
THE COMPANY.  THE CLERK TAXED COSTS AT ALMOST $12,000 FOR THE TWO
TRIALS, WHICH THE SECOND DISTRICT JUDGE REDUCED BY OVER 90%,
ELIMINATING THE EXPENSES OF THE OVERSEAS WITNESSES AND THE COST OF THE
DAILY TRANSCRIPTS.  THE COURT OF APPEALS UPHELD THE COSTS FOR THE
SECOND TRIAL, BUT REVERSED AS TO COSTS FOR THE FIRST TRIAL, ALTHOUGH
REDUCING THE AMOUNT, HOLDING THAT THE SECOND JUDGE FAILED TO GIVE
PROPER DEFERENCE TO THE FIRST JUDGE'S TAXATION OF COSTS.  HELD: 

1.  THE 100-MILE SUBPOENA PROVISION IN RULE 45(E) OF THE FEDERAL
RULES OF CIVIL PROCEDURE DOES NOT COMPLETELY BAR A DISTRICT COURT FROM
TAXING AS COSTS EXPENSES OF TRANSPORTING WITNESSES MORE THAN 100 MILES,
FOR RULE 54(D) DOES LEAVE THE DISTRICT COURT DISCRETION TO TAX SUCH
EXPENSES.  PP. 231-232. 

2.  IT WAS NOT ERROR FOR THE DISTRICT JUDGE AT THE END OF THE SECOND
TRIAL WHEN JUDGMENT WAS FINALLY ENTERED TO DETERMINE COSTS FOR BOTH
TRIALS, THE FIRST JUDGMENT AND TAXATION OF COSTS HAVING BEEN UPSET BY
THE REVERSAL OF THE TRIAL JUDGMENT.  PP. 232-233. 

3.  THE DISTRICT JUDGE'S DISCRETION WAS APPROPRIATELY EXERCISED IN
HIS TAXATION OF COSTS FOR BOTH TRIALS.  PP. 233-236. 

FARMER V. ARABIAN AMERICAN OIL CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS PRESENTED IN THIS CASE RELATE TO THE POWER AND
DISCRETION OF A UNITED STATES DISTRICT COURT TO TAX AS COSTS AGAINST
THE LOSER IN A CIVIL LAWSUIT EXPENSES INCURRED BY THE WINNER IN
CARRYING ON THE LITIGATION. 

HOWARD FARMER, A PHYSICIAN FROM TEXAS SPECIALIZING IN OPHTHALMOLOGY,
STARTED THIS LITIGATION AGAINST THE ARABIAN AMERICAN OIL COMPANY IN A
NEW YORK STATE COURT, CLAIMING $4,000 DAMAGES (FN1) FOR BREACH OF AN
EMPLOYMENT CONTRACT.  THE COMPLAINT ALLEGED THAT IN APRIL 1955 THE
COMPANY ENTERED INTO AN AGREEMENT TO EMPLOY FARMER AS AN
OPHTHALMOLOGIST IN SAUDI ARABIA AT AN ANNUAL SALARY OF $16,000 PLUS A
$4,000 LIVING ALLOWANCE PER YEAR, SO LONG AS THE COMPANY CONTINUED ITS
OIL-WELL OPERATIONS THERE, AND THAT ALTHOUGH HE BEGAN WORK AND PROPERLY
PERFORMED HIS DUTIES, THE COMPANY WRONGFULLY DISCHARGED HIM IN MARCH
1956.  ON THE COMPANY'S MOTION THE CASE WAS REMOVED TO FEDERAL COURT
BECAUSE OF DIVERSITY.  THE COMPANY ADMITTED THAT IT HAD EMPLOYED FARMER
BUT DEFENDED ON THE GROUNDS THAT THE DISCHARGE WAS NOT WRONGFUL BOTH
BECAUSE HE HAD BEEN EMPLOYED AT WILL RATHER THAN FOR A DEFINITE TERM,
AND BECAUSE HE HAD BEEN DISCHARGED FOR GOOD CAUSE.  AT THE TRIAL FARMER
ATTEMPTED TO SHOW THAT THE COMPANY DISCHARGED HIM BECAUSE HE HAD FOUND
THAT A NUMBER OF AMERICANS EMPLOYED BY THE COMPANY IN ARABIA HAD
CONTRACTED TRACHOMA, A MUCH DREADED TROPICAL EYE DISEASE WHICH MAY LEAD
TO BLINDNESS, AND THAT ALTHOUGH URGED BY THE COMPANY'S MEDICAL STAFF TO
FALSIFY OR SUPPRESS HIS FINDINGS, HE HAD REFUSED TO DO SO.  THE
COMPANY'S EVIDENCE TENDED TO DISPROVE THIS CHARGE AND TO SHOW THAT
FARMER HAD BEEN DISCHARGED BECAUSE HE HAD OPERATED ON A YOUNG ARABIAN
BOY'S EYE, WITHOUT FIRST HAVING RECEIVED AND EXAMINED A URINALYSIS AND
BLOOD TEST REPORT.  THIS THE COMPANY ALLEGED TO BE IN VIOLATION OF A
WRITTEN COMPANY RULE AND STANDARD SURGICAL PRACTICE.  SUCH TESTS HAD IN
FACT BEEN COMPLETED BEFORE DR. FARMER PERFORMED THE OPERATION, BUT
WHETHER HE HAD KNOWN OF THE TESTS OR THEIR RESULTS, AND WHETHER THERE
ACTUALLY HAD BEEN A COMPANY RULE REQUIRING THAT HE HAVE THE TEST
RESULTS WERE IN SHARP DISPUTE. 

THE COMPANY, IN ORDER TO REFUTE FARMER'S CHARGE, BROUGHT THREE
WITNESSES FROM SAUDI ARABIA TO NEW YORK TO TESTIFY IN SUPPORT OF ITS
VERSION OF THE DISPUTE.  THE JURY FAILED TO AGREE, AFTER WHICH DISTRICT
JUDGE PALMIERI GRANTED THE COMPANY'S MOTION FOR A DIRECTED VERDICT, 176
F. SUPP. 45, AND APPROVED THE CLERK'S TAXATION OF COSTS AGAINST FARMER
IN THE AMOUNT OF $6,601.08, WHICH INCLUDED AMONG OTHER THINGS
TRANSPORTATION EXPENSES FOR THE WITNESSES FROM ARABIA AND COSTS OF
DAILY STENOGRAPHIC TRANSCRIPTS OF THE TRIAL RECORD FURNISHED TO THE
COMPANY'S LAWYERS AT THEIR REQUEST.  HOLDING THAT A VERDICT SHOULD NOT
HAVE BEEN DIRECTED, THE COURT OF APPEALS REVERSED AND REMANDED THE CASE
FOR A NEW TRIAL, THEREBY UPSETTING THE JUDGMENT AND THE TAXATION OF
COSTS.  277 F.2D 46. 

ON REMAND TO THE DISTRICT COURT THE COMPANY OBTAINED AN ORDER
DIRECTING FARMER TO PUT UP SECURITY FOR COSTS IN THE SUM OF $6,000. 
BECAUSE FARMER WAS UNABLE TO POST SO LARGE A BOND, JUDGE MACMAHON
DISMISSED THE CASE.  THE COURT OF APPEALS REVERSED IN AN OPINION THAT
STRONGLY INDICATED ITS BELIEF THAT THE COSTS ALREADY TAXED WERE
EXORBITANT AND THAT TO REQUIRE FARMER TO GIVE THE BOND WOULD "FOR ALL
PRACTICAL PURPOSES" DENY HIM HIS DAY IN COURT.  285 F.2D 720.  ON A
SECOND TRIAL, THIS TIME BEFORE DISTRICT JUDGE WEINFELD, THE JURY FOUND
FOR THE COMPANY AND NO APPEAL WAS TAKEN.  THE CLERK THEN TAXED
$11,900.12 AGAINST FARMER AS THE AGGREGATE COST OF BOTH TRIALS, BUT ON
REVIEW JUDGE WEINFELD FOUND THESE COSTS "STAGGERING" FOR SO
UNCOMPLICATED A CASE AND REDUCED THEM TO $831.60.  IN MAKING THIS
REDUCTION, JUDGE WEINFELD LOWERED THE COST BILL APPROVED BY JUDGE
PALMIERI IN THE FIRST TRIAL FROM $6,601.08 TO $496.05.  HE DID THIS
CHIEFLY BY ELIMINATING THE TRANSPORTATION EXPENSES OF THE WITNESSES
FROM ARABIA AND THE COSTS OF SUPPLYING THE COMPANY'S COUNSEL WITH
OVERNIGHT TRANSCRIPTS OF THE DAILY TRIAL PROCEEDINGS.  JUDGE WEINFELD
ALSO REFUSED TO REQUIRE FARMER TO REIMBURSE THE COMPANY FOR ITS SIMILAR
EXPENSES IN THE SECOND TRIAL.  31 F.R.D. 191.  SITTING EN BANC, THE
COURT OF APPEALS, BY A VOTE OF 5-4, AFFIRMED JUDGE WEINFELD'S COST
TAXATION FOR THE SECOND TRIAL, BUT HELD THAT HE HAD FAILED TO GIVE
PROPER DEFERENCE TO JUDGE PALMIERI'S TAXATION OF COSTS FOR THE FIRST
TRIAL AND SO REVERSED THAT PART OF HIS ORDER.  THE COURT OF APPEALS
ITSELF, HOWEVER, DIRECTED THAT JUDGE PALMIERI'S COST ALLOWANCE BE
REDUCED BY $2,064 FOR TRANSPORTATION OF TWO OF THE WITNESSES FROM
ARABIA, WHO HAD "OCCUPIED OTHERWISE EMPTY SPACE IN COMPANY PLANES ON
REGULARLY SCHEDULED FLIGHTS TO AND FROM SAUDI ARABIA, SO THAT AS TO
THEM THERE WAS NO ACTUAL TRAVEL EXPENSE INCURRED BY THE COMPANY AND
NONE SHOULD HAVE BEEN ALLOWED."  324 F.2D 359, 364. 

FARMER PETITIONED FOR CERTIORARI TO REVIEW THE COURT OF APPEALS'
REFUSAL TO AFFIRM JUDGE WEINFELD'S TAXATION OF COSTS.  THE COMPANY
SOUGHT CERTIORARI TO REVIEW THOSE PARTS OF THE COURT OF APPEALS'
JUDGMENT REFUSING TO ALLOW ALL COSTS TAXED BY JUDGE PALMIERI ON THE
FIRST TRIAL AND REFUSING TO ALLOW TRANSPORTATION COSTS INCURRED IN
TRANSPORTING ITS WITNESSES FROM ARABIA FOR THE SECOND TRIAL.  WE
GRANTED BOTH PETITIONS, 376 U.S. 942.  FOR REASONS TO BE STATED, WHICH
ARE NOT WHOLLY THE GROUNDS RELIED ON BY FARMER, WE AGREE WITH HIM THAT
JUDGE WEINFELD'S ORDER SHOULD HAVE BEEN UPHELD IN ITS ENTIRETY. 

                                        I 

WE DEAL FIRST WITH FARMER'S CONTENTION THAT THE DISTRICT COURT WAS
WHOLLY WITHOUT POWER TO TAX COSTS AGAINST HIM TO REIMBURSE THE COMPANY
FOR EXPENSES INCURRED IN BRINGING THE WITNESSES FROM ARABIA TO THIS
COUNTRY.  HIS ARGUMENT RUNS THIS WAY.  IT HAS LONG BEEN THE LAW IN THIS
COUNTRY, AS NOW SET OUT IN RULE 45(E) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, (FN2) THAT, WITH EXCEPTIONS NOT HERE RELEVANT, SUBPOENAS
REQUIRING THE ATTENDANCE OF WITNESSES AT A TRIAL CANNOT BE SERVED
OUTSIDE THE JUDICIAL DISTRICT MORE THAN 100 MILES FROM THE PLACE OF
TRIAL.  MANY DECISIONS OF DISTRICT COURTS AND COURTS OF APPEALS HAVE
HELD THAT SINCE WITNESSES CANNOT BE COMPELLED UNDER THIS RULE TO TRAVEL
MORE THAN 100 MILES, A PARTY WHO PERSUADES THEM TO DO SO BY PAYING
THEIR TRANSPORTATION EXPENSES CANNOT HAVE THOSE EXPENSES TAXED AS COSTS
AGAINST HIS ADVERSARY.  (FN3)   THIS WAS THE VIEW OF THREE OF THE
DISSENTING JUDGES BELOW.  324 F.2D 359, 365.  THE MAJORITY, HOWEVER,
WHILE RECOGNIZING THAT THE GREAT BULK OF JUDICIAL AUTHORITY SUPPORTS
THE 100-MILE RULE, NEVERTHELESS HELD THAT DISTRICT COURTS DO HAVE
DISCRETIONARY POWER TO TAX SUCH COSTS UNDER 28 U.S.C. SEC. 1920(3)
(1958 ED.), WHICH PROVIDES THAT "A JUDGE OR CLERK  ...  MAY TAX AS
COSTS  ...  FEES AND DISBURSEMENTS FOR  ...  WITNESSES  ...  ."  THE
MAJORITY ALSO THOUGHT THE PRIOR 100-MILE RULE HAD BEEN UNDERCUT BY THE
1949 CONGRESSIONAL AMENDMENT TO 28 U.S.C. SEC. 1821 (1958 ED.), WHICH
PROVIDES THAT "WITNESSES WHO ARE REQUIRED TO TRAVEL  ...  TO AND FROM
THE CONTINENTAL UNITED STATES, SHALL BE ENTITLED TO THE ACTUAL EXPENSES
OF TRAVEL  ...  ." 

WE CANNOT ACCEPT EITHER THE EXTREME POSITION OF THE COMPANY THAT THE
OLD 100-MILE RULE HAS NO VITALITY FOR ANY PURPOSE OR FARMER'S ARGUMENT
THAT A FEDERAL DISTRICT COURT CAN NEVER UNDER ANY CIRCUMSTANCES TAX AS
COSTS EXPENSES FOR TRANSPORTING WITNESSES MORE THAN 100 MILES.  IN THIS
CASE, HOWEVER, WHERE TAXATION OF SUCH EXPENSES IS BEING DENIED, WE NEED
NOT SET OUT THE SPECIFIC CIRCUMSTANCES UNDER WHICH SUCH COSTS CAN BE
TAXED NOR MARK PRECISELY THE LIMITS OF A DISTRICT COURT'S POWER TO TAX
THEM.  IT IS SUFFICIENT HERE TO POINT TO FEDERAL RULE OF CIVIL
PROCEDURE 54(D), WHICH PROVIDES THAT "EXCEPT WHEN EXPRESS PROVISION
THEREFOR IS MADE EITHER IN A STATUTE OF THE UNITED STATES OR IN THESE
RULES, COSTS SHALL BE ALLOWED AS OF COURSE TO THE PREVAILING PARTY
UNLESS THE COURT OTHERWISE DIRECTS  ...  ."  WHILE THIS RULE COULD BE
FAR MORE DEFINITE AS TO WHAT "COSTS SHALL BE ALLOWED," THE WORDS
"UNLESS THE COURT OTHERWISE DIRECTS" QUITE PLAINLY VEST SOME POWER IN
THE COURT TO ALLOW SOME "COSTS."  WE THEREFORE HOLD THAT JUDGE WEINFELD
WAS CORRECT IN TREATING THIS CASE AS AN APPEAL TO HIS DISCRETION. 

                                        II 

THE COURT OF APPEALS HELD, AND THE COMPANY ARGUES HERE, THAT, EVEN IF
JUDGE WEINFELD DID HAVE DISCRETION, IT WAS NEVERTHELESS ERROR FOR HIM
TO UNDERTAKE "AN INDEPENDENT DETERMINATION DE NOVO OF THE COSTS ALLOWED
AT A PRIOR TRIAL."  324 F.2D, AT 364.  WE CANNOT AGREE.  SINCE JUDGE
PALMIERI'S JUDGMENT AND HIS TAXATION OF COSTS WERE BOTH UPSET BY THE
COURT OF APPEALS' REVERSAL OF THE FIRST TRIAL JUDGMENT, IT BECAME THE
DUTY OF THE CLERK TO TAX COSTS FOR BOTH TRIALS ONLY WHEN JUDGMENT WAS
FINALLY ENTERED FOR THE COMPANY.  THE FACT THAT THE CLERK ACCEPTED
JUDGE PALMIERI'S FORMER COST TAXATION PUT NO DUTY ON JUDGE WEINFELD TO
ACCEPT THE SAME FIGURES.  ON REVIEW OF THE CLERK'S ASSESSMENT, IT WAS
JUDGE WEINFELD'S RESPONSIBILITY TO DECIDE THE COST QUESTION HIMSELF,
AND SO FAR AS AN EXERCISE OF DISCRETION WAS CALLED FOR, IT WAS THEN HIS
DISCRETION AND NOT JUDGE PALMIERI'S THAT HAD TO CONTROL.  TRUE, ANY
JUDGE IN A LIKE SITUATION WOULD ALMOST SURELY HOPE TO AGREE WITH HIS
BROTHER JUDGE'S PRIOR OPINION, BUT WE CANNOT ACCEPT THE IDEA THAT HE IS
COMPELLED TO DO SO.  JUDGE WEINFELD WAS AWARE OF INTERVENING
CIRCUMSTANCES OF WHICH JUDGE PALMIERI COULD NOT HAVE KNOWN, AS FOR
EXAMPLE THE COURT OF APPEALS' TWO OPINIONS FOLLOWING THE FIRST TRIAL,
ONE OF WHICH MENTIONED COST QUESTIONS.  AND JUDGE WEINFELD IN LOWERING
THE PRIOR ASSESSMENT REACHED A RESULT NOT GREATLY DIFFERENT FROM THAT
OF THE COURT OF APPEALS, WHICH ITSELF REDUCED JUDGE PALMIERI'S COST
ALLOWANCE MORE THAN $2,000. 

           III 

FINALLY, WE THINK THAT JUDGE WEINFELD'S TAXATION OF COSTS AS TO BOTH
TRIALS WAS AN APPROPRIATE EXERCISE OF HIS DISCRETION AND SHOULD HAVE
BEEN ALLOWED TO STAND.  THE TWO DISPUTED EXPENSES THAT ARE MOST
IMPORTANT IN PRINCIPLE AND LARGEST IN AMOUNT ARE (A) APPROXIMATELY
$3,000 FOR STENOGRAPHERS' FEES IN SUPPLYING COMPANY COUNSEL WITH DAILY
TRANSCRIPTS OF THE TRIAL, AND (B) APPROXIMATELY $7,000 FOR EXPENSES
INCURRED IN TRANSPORTING WITNESSES FROM AND BACK TO ARABIA. 

(A)  IN DENYING THE ALLOWANCE FOR DAILY TRANSCRIPTS, JUDGE WEINFELD
POINTED OUT THAT WHILE THESE MIGHT HAVE ADDED TO THE CONVENIENCE OF
COUNSEL FOR THE COMPANY, AND PERHAPS EVEN HAVE MADE THE TASK OF THE
TRIAL JUDGES EASIER, THE TRANSCRIPTS WERE BY NO MEANS INDISPENSABLE. 
THE JUDGE'S CONCLUSION WAS BASED ON HIS PERSONAL KNOWLEDGE THAT THIS
WAS NOT A COMPLICATED OR EXTENDED TRIAL WHERE LAWYERS WERE REQUIRED TO
SUBMIT BRIEFS AND PROPOSED FINDINGS.  AS TO THE COMPANY'S ARGUMENT THAT
THE TRANSCRIPT COSTS WERE JUSTIFIED BECAUSE THE JURY READ THEM, JUDGE
WEINFELD CORRECTLY POINTED OUT THAT THE SAME RESULT COULD HAVE BEEN
ACCOMPLISHED WITHOUT THIS EXPENSE BY FOLLOWING THE COMMON PRACTICE OF
CALLING ON THE STENOGRAPHER TO READ FROM HIS NOTES.  WE THINK JUDGE
WEINFELD'S REFUSAL TO MAKE FARMER PAY FOR THESE OVERNIGHT TRANSCRIPTS,
WHICH WERE ORDERED BY THE COMPANY'S COUNSEL, WAS PROPER AND SHOULD NOT
HAVE BEEN DISTURBED BY THE COURT OF APPEALS. 

(B)  JUDGE WEINFELD "IN THE EXERCISE OF DISCRETION" REFUSED TO TAX
THE ACTUAL TRANSPORTATION EXPENSES OF THE WITNESSES FROM ARABIA,
LIMITING THOSE COSTS TO THE PER DIEM FEES FIXED BY LAW AND TO EXPENSES
FOR TRAVEL FOR A DISTANCE NOT TO EXCEED 100 MILES TO AND FROM THE
COURTHOUSE.  HE UNDOUBTEDLY WAS INFLUENCED TO SOME EXTENT BY THE
LONGSTANDING 100 MILE RULE.  THAT RULE, WE THINK, IS A PROPER AND
NECESSARY CONSIDERATION IN EXERCISING DISCRETION IN THIS FIELD.  THE
CENTURY-AND-A-HALF-OLD SPECIAL STATUTORY PROVISION (FN4) RELATING TO
SERVICE OF SUBPOENAS MORE THAN 100 MILES FROM THE COURTHOUSE IS
DESIGNED NOT ONLY TO PROTECT WITNESSES FROM THE HARASSMENT OF LONG,
TIRESOME TRIPS BUT ALSO, IN LINE WITH OUR NATIONAL POLICY, TO MINIMIZE
THE COSTS OF LITIGATION, WHICH POLICY IS STRONGLY EMPHASIZED IN THE
FEDERAL RULES OF CIVIL PROCEDURE.  (FN5)  HERE THE COMPANY ON ITS OWN,
WITHOUT PRIOR NOTICE TO THE COURT, BROUGHT ITS FOREIGN WITNESSES TO
COURT AT ITS OWN EXPENSE.  WITH REFERENCE TO THIS, JUDGE WEINFELD
SAID: 

"UPON AN APPROPRIATE MOTION, THE MEANS OF OBTAINING THE TESTIMONY OF
THE WITNESS WOULD HAVE RESTED WITH THE COURT WHICH, IN ITS DISCRETION,
COULD HAVE IMPOSED CONDITIONS WITH RESPECT TO WHICH PARTY INITIALLY WAS
TO BEAR THE EXPENSE AND PROVIDED FOR ITS ULTIMATE TAXATION IN FAVOR OF
THE PREVAILING PARTY."  31 F.R.D. 191, 195. 

HAVING FAILED TO BRING THIS PROBLEM TO THE COURT'S ATTENTION IN ANY
MANNER, THE COMPANY WENT AHEAD AND PILED UP WHAT JUDGE WEINFELD QUITE
UNDERSTANDABLY REFERRED TO AS THIS "HUGE BILL OF COSTS."  WE THINK THAT
UNDER THE CIRCUMSTANCES, JUDGE WEINFELD COULD NOT BE CHARGED WITH ANY
IMPROPER EXERCISE OF THE DISCRETION VESTED IN HIM BY RULE 54(D).  WE DO
NOT READ THAT RULE AS GIVING DISTRICT JUDGES UNRESTRAINED DISCRETION TO
TAX COSTS TO REIMBURSE A WINNING LITIGANT FOR EVERY EXPENSE HE HAS SEEN
FIT TO INCUR IN THE CONDUCT OF HIS CASE.  ITEMS PROPOSED BY WINNING
PARTIES AS COSTS SHOULD ALWAYS BE GIVEN CAREFUL SCRUTINY.  ANY OTHER
PRACTICE WOULD BE TOO GREAT A MOVEMENT IN THE DIRECTION OF SOME SYSTEMS
OF JURISPRUDENCE THAT ARE WILLING, IF NOT INDEED ANXIOUS, TO ALLOW
LITIGATION COSTS SO HIGH AS TO DISCOURAGE LITIGANTS FROM BRINGING
LAWSUITS, NO MATTER HOW MERITORIOUS THEY MIGHT IN GOOD FAITH BELIEVE
THEIR CLAIMS TO BE.  THEREFORE, THE DISCRETION GIVEN DISTRICT JUDGES TO
TAX COSTS SHOULD BE SPARINGLY EXERCISED WITH REFERENCE TO EXPENSES NOT
SPECIFICALLY ALLOWED BY STATUTE.  SUCH A RESTRAINED ADMINISTRATION OF
THE RULE IS IN OF LITIGATION.  WE THEREFORE HOLD THAT JUDGE WEINFELD'S
ORDER ASSESSING ONLY APPROPRIATE EXPENSES SHOULD HAVE BEEN AFFIRMED BY
THE COURT OF APPEALS.  THAT COURT'S JUDGMENT IS ACCORDINGLY REVERSED
AND THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED.  IT IS SO ORDERED. 

FN1  BY TWO SUCCESSIVE AMENDMENTS MADE SEVERAL YEARS LATER, THE
COMPLAINT WAS AMENDED TO CLAIM, FIRST, $59,683, AND FINALLY, $160,000. 

FN2  RULE 45(E) PROVIDES IN PART THAT: 

"A SUBPOENA REQUIRING THE ATTENDANCE OF A WITNESS AT A HEARING OR
TRIAL MAY BE SERVED AT ANY PLACE WITHIN THE DISTRICT, OR AT ANY PLACE
WITHOUT THE DISTRICT THAT IS WITHIN 100 MILES OF THE PLACE OF THE
HEARING OR TRIAL SPECIFIED IN THE SUBPOENA  ...   ." 

FN3  SEE CASES CITED IN THE OPINION OF THE COURT BELOW, 324, F.2D, AT
362, AND THE DISSENT, 324 F.2D, AT 366, AS WELL AS CASES COLLECTED IN
28 U.S.C.A. SEC. 1821, N. 4, AND 28 FED. CODE ANN. SEC. 1821. 

FN4  1 STAT. 88 (1789); 1 STAT. 335 (1793). 

FN5  SEE, E.G., RULE 1 OF THE FEDERAL RULES OF CIVIL PROCEDURE WHICH
PROVIDES THAT ALL THE RULES "SHALL BE CONSTRUED TO SECURE THE JUST,
SPEEDY, AND INEXPENSIVE DETERMINATION OF EVERY ACTION." 

MR. JUSTICE GOLDBERG, CONCURRING IN THE RESULT. 

I AGREE WITH THE COURT THAT JUDGE WEINFELD DID NOT ABUSE HIS
DISCRETION IN LIMITING THE COSTS FOR TRANSCRIPTS IN BOTH TRIALS.  THE
ISSUES, AS JUDGE WEINFELD PROPERLY FOUND, WERE NOT EXTRAORDINARILY
COMPLICATED NOR WERE THE TRIALS OF GREAT LENGTH, AND JUDGE WEINFELD'S
DICISION THAT MUCH OF THIS EXPENSE WAS NOT REALLY NECESSARY SEEMS TO ME
ENTIRELY CORRECT, LET ALONE NOT SO ERRONEOUS AS TO CONSTITUTE AN ABUSE
OF DISCRETION.  I LIKEWISE AGREE WITH THE COURT THAT IT WAS JUDGE
WEINFELD'S RESPONSIBILITY TO DECIDE THE COST QUESTION AND THAT HE WAS
NOT COMPELLED TO AGREE WITH JUDGE PALMIERI'S PRIOR OPINION WHICH WAS
SET ASIDE BY THE COURT OF APPEALS' REVERSAL OF THE FIRST TRIAL
JUDGMENT.  ALSO, IF I BELIEVED THAT JUDGE WEINFELD HAD DISCRETION TO
TAX COSTS FOR TRAVEL BEYOND THE 100-MILE LIMIT," I WOULD AGREE THAT HE
DID NOT ABUSE HIS DISCRETION IN REDUCING THE TRAVEL ALLOWANCES OF THE
DEFENDANT'S WITNESSES TO THE EQUIVALENT OF MILEAGE FOR 100 MILES. 

BUT I DO NOT AGREE THAT THE 100-MILE LIMIT IS A MATTER FOR EVEN THE
NARROW DISCRETION WHICH THE COURT WOULD ALLOW THE LOWER FEDERAL COURTS
TO EXERCISE.  I WOULD NOT DEPART FROM THE STRONG PRECEDENTS AND LONG
CONTINUED CUSTOM THAT THE 100-MILE RULE IS A LIMITATION TO BE UNIFORMLY
OBSERVED AND NOT TO BE DEPARTED FROM IN TAXING COSTS. 

JUDGES SMITH, CLARK, AND HAYS, DISSENTING IN THE COURT OF APPEALS ON
THIS POINT, HAVE STATED REASONS WHICH TO ME ARE BOTH PERSUASIVE AND
COMPELLING.  JUDGE SMITH SUCCINCTLY SUMMARIZED THE RATIONALE OF THE
DISSENTERS IN STATING THAT THE DECISION OF THE MAJORITY OF THE COURT OF
APPEALS: 

"NOT ONLY BREAKS WITH THE OVERWHELMING WEIGHT OF AUTHORITY, AND
CREATES A DIFFERENT RULE FOR COSTS IN CIVIL CASES FROM THAT IN
ADMIRALTY, BUT ALSO, AS THE MAJORITY INDEED APPEARS TO ADMIT, ABANDONS
THE TRADITIONAL SCHEME OF COSTS IN AMERICAN COURTS TO TURN IN THE
DIRECTION OF THE ENGLISH PRACTICE OF MAKING THE UNSUCCESSFUL LITIGANT
PAY HIS OPPONENT'S LITIGATION EXPENSE AS WELL AS HIS OWN.  IT HAS NOT
BEEN ACCIDENT THAT THE AMERICAN LITIGANT MUST BEAR HIS OWN COST OF
COUNSEL AND OTHER TRIAL EXPENSE SAVE FOR A MINIMAL COURT COSTS, BUT A
DELIVERATE CHOICE TO ENSURE THAT ACCESS TO THE COURTS BE NOT
EFFECTIVELY DENIED THOSE OF MODERATE MEANS."  324 F.2D 359, 365. 

NO UNDUE BURDEN IS IMPOSED UPON A LITIGANT BY THE AMERICAN RULE, FOR
DEPOSITIONS MAY BE TAKEN OF WITNESSES WHO LIVE OUTSIDE THE DISTRICT
WHERE A CASE IS PENDING.  IF THE LITIGANT FEELS THAT THE PERSONAL
APPEARANCE IN COURT OF SUCH A WITNESS IS NECESSARY, IT IS REASONABLE
THAT HE BEAR THE COST INVOLVED. 

THAT A DISCRETIONARY APPLICATION OF THE 100-MILE RULE VIOLATES OTHER
SOUND POLICY IS SHOWN BY THIS VERY CASE.  TWO ABLE AND EXPERIENCED
DISTRICT COURT JUDGES APPLYING DISCRETION CAME TO OPPOSITE RESULTS IN
THE APPLICATION OF THE RULE; A LEARNED COURT OF APPEALS DIVIDED 5 TO 4
ON THIS ISSUE.  I FEAR THAT, IN PLACE OF THE CERTAINTY AND UNIFORMITY
OF TREATMENT OF THIS IMPORTANT COST ITEM, WHICH HAS HERETOFORE
PREVAILED THROUGHOUT THE FEDERAL SYSTEM, THE OPINION OF THE COURT WILL
SPAWN CONSIDERABLE LITIGATION SEEKING REVIEW OF THE DISCRETION WHICH
THE COURT NOW HOLDS IS VESTED IN THE LOWER COURTS.  THIS TYPE OF
LITIGATION IN ITSELF IS BOTH TIME CONSUMING AND EXPENSIVE TO THE
PARTIES AND WILL FURTHER ADD TO THE BURDENS OF LITIGATION, WHICH EVEN
UNDER THE TRADITIONAL 100-MILE RULE WERE HEAVY.  MOREOVER, IT WILL
UNDULY PROLONG LITIGATION, FOR APPEALS OVER COSTS MAY BE DECIDED WELL
AFTER A FINAL JUDGMENT HAS BEEN ENTERED. 

THE FACT IS THAT THE DEFENDANT, IN ALL PROBABILITY, WOULD NOT HAVE
SERIOUSLY RAISED THIS ISSUE, IN LIGHT OF THE UNIFORM AUTHORITY AGAINST
ITS POSITION, WERE IT NOT FOR THE ENACTMENT OF THE PROVISO ADDED IN
1949 TO 28 U.S.C. SEC. 1821 (1958 ED.).  BUT, AS THE DISSENTING JUDGES
DEMONSTRATED, THIS PROVISO HAS NOTHING TO DO WITH "THE EVENTUAL
RECOVERY OF  ...  FEES AS COSTS BY THE PREVAILING PARTY."  324 F.2D, AT
367.  IT WAS ENACTED AT THE REQUEST OF THE ATTORNEY GENERAL TO OBTAIN
AUTHORITY TO PAY THE TRAVEL EXPENSES OF WITNESSES AT THE LOWEST FIRST
CLASS RATE SO THAT THEIR ATTENDANCE COULD BE OBTAINED WITHOUT FINANCIAL
SACRIFICE ON THEIR PART.  S. REP. NO. 187, 81ST CONG., 1ST SESS.
FURTHERMORE, IT IS DOUBTFUL WHETHER THIS STATUTE APPLIES TO FOREIGN
TRAVEL AT ALL SINCE IT SEEMS ON ITS FACE TO BE LIMITED TO TRAVEL
BETWEEN THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES AND
BETWEEN THE CONTINENTAL UNITED STATES AND ITS TERRITORIES AND
POSSESSIONS.  FINALLY, SINCE THE WORD "REQUIRED" IS USED IN THE
STATUTE, AND SINCE THE STATUTE'S PROPONENT WAS THE ATTORNEY GENERAL, IT
IS SUSCEPTIBLE OF THE INTERPRETATION THAT, EVEN IF DEEMED APPLICABLE TO
WITNESSES COMING FROM ABROAD, IT IS LIMITED TO THOSE WITNESSES WHO ARE
SUBJECT TO SUBPOENA IN THE TWO SITUATIONS PROVIDED IN 28 U.S.C.  SEC.
1783 (1958 ED.).  (FN1) 

MOREOVER, FEDERAL RULE OF CIVIL PROCEDURE 54(D) LENDS NO SUPPORT TO
THIS COURT'S CONCLUSION.  THAT RULE PROVIDES THAT "EXCEPT WHEN EXPRESS
PROVISION THEREFOR IS MADE EITHER IN A STATUTE OF THE UNITED STATES OR
IN THESE RULES, COSTS SHALL BE ALLOWED AS OF COURSE TO THE PREVAILING
PARTY UNLESS THE COURT OTHERWISE DIRECTS  ...  ."  IN LIGHT OF THE
UNIFORM APPLICATION OF THE 100-MILE LIMITATION BOTH BEFORE AND AFTER
THE ADOPTION OF 54(D), KNOWN TO THOSE CHARGED WITH FRAMING AND AMENDING
THE RULES, ITS REFERENCE TO "COSTS" CAN ONLY BE INTERPRETED AS
REFERRING TO THOSE TRADITIONAL COURT COSTS, SUCH AS THE COST OF
PROVIDING TRANSCRIPTS OR TRAVEL COSTS LIMITED BY THE 100-MILE RULE,
NORMALLY AWARDED TO A WINNING LITIGANT.  (FN2) 

FOR THESE REASONS, I WOULD ADHERE TO THE TRADITIONAL FORMULATION OF
THE RULE AS SET FORTH BY THE NINTH CIRCUIT THAT THE "MILEAGE ALLOWABLE
SHOULD BE THAT WHICH WAS TRAVELED WITHIN THE DISTRICT, OR ACTUAL
MILEAGE TRAVELED IN AND OUT OF THE DISTRICT UP TO 100 MILES, WHICHEVER
IS THE GREATER."  KEMART CORP. V. PRINTING ARTS RESEARCH LABORATORIES,
INC., 232 F.2D 897, 904. 

EVEN THE NARROW DECISION OF THE COURT TODAY, IN THE WORDS OF JUDGE
CLARK, DISSENTING IN THIS CASE, "REPRESENTS AN APPROACH TO THE ENGLISH
SYSTEM, NEVER ACCEPTED BY US BECAUSE OF OUR CONVICTION THAT IT 'FAVORED
THE WEALTHY AND UNDULY PENALIZED THE LOSING PARTY.'"  324 F.2D, AT
370. 

JUDGE LEARNED HAND ONCE PROPERLY OBSERVED:  "AFTER NOW SOME DOZEN
YEARS OF EXPERIENCE I MUST SAY THAT AS A LITIGANT I SHOULD DREAD A LAW
SUIT BEYOND ALMOST ANYTHING ELSE SHORT OF SICKNESS AND DEATH."  (FN3) 

I WOULD NOT INTENSIFY THAT DREAD. 

FN1  28 U.S.C. SEC. 1783(A) (1958 ED.)  PROVIDES: 

"(A)  A COURT OF THE UNITED STATES MAY SUBPOENA, FOR APPEARANCE
BEFORE IT, A CITIZEN OR RESIDENT OF THE UNITED STATES WHO: 

"(1)  HAS BEEN PERSONALLY NOTIFIED IN A FOREIGN COUNTRY TO APPEAR
BEFORE A COURT THEREOF TO TESTIFY PURSUANT TO LETTERS ROGATORY ISSUED
BY SUCH COURT OF THE UNITED STATES, AND WHO HAS FAILED TO APPEAR OR HAS
FAILED TO ANSWER ANY QUESTION WHICH HE WOULD BE REQUIRED TO ANSWER WERE
HE BEING EXAMINED BEFORE SUCH COURT OF THE UNITED STATES; OR: 

"(2)  IS BEYOND THE JURISDICTION OF THE UNITED STATES AND WHOSE
TESTIMONY IN A CRIMINAL PROCEEDING IS DESIRED BY THE ATTORNEY
GENERAL." 

FN2  AUTHORITIES ON THE RULES SUCH AS PROFESSOR MOORE APPROVE THE 100
MILE RULE AND DO NOT INTIMATE THAT IT DEPARTS IN ANY WAY FROM THE
LETTER OR SPIRIT OF RULE 54(D).  6 MOORE, FEDERAL PRACTICE, 1362-1363. 

FN3  ADDRESS OF LEARNED HAND, 3 ASSOCIATION OF THE BAR OF THE CITY OF
NEW YORK, LECTURES ON LEGAL TOPICS, 105 (1926). 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THE ONLY POSSIBLE JUSTIFICATION FOR BRINGING THIS CASE HERE WAS TO
SETTLE THE QUESTION OF WHETHER THE 100-MILE SUBPOENA RULE DEPRIVES A
DISTRICT COURT OF POWER TO TAX AS COSTS THE TRAVELING EXPENSES OF
WITNESSES REASONABLY BROUGHT BY THE PREVAILING LITIGANT FROM PLACES
BEYOND THAT DISTANCE.  THE COURT, HOWEVER, DECLINES TO MAKE ANY PRECISE
HOLDING ON THIS QUESTION.  THE SCOPE OF THE DISCRETION OF A DISTRICT
JUDGE ACTING WITHIN HIS POWERS, WHICH IS THE FOUNDATION OF TODAY'S
DECISION, IS IN MY OPINION A MATTER WHICH SHOULD BE LEFT WITH THE
COURTS OF APPEALS.  I WOULD AFFIRM THE JUDGMENT BELOW FOR THE REASONS
STATED IN THE OPINION OF CHIEF JUDGE LUMBARD FOR THE MAJORITY OF THE
COURT OF APPEALS, 324 F.2D 359. 
..END :






HEART OF ATLANTA MOTEL, INC. V. UNITED STATES 379 U.S. 241 


NO. 515.  ARGUED OCTOBER 5, 1964.  - DECIDED DECEMBER 14, 1964.  - 231
F. SUPP. 393, AFFIRMED. 


APPELLANT, THE OWNER OF A LARGE MOTEL IN ATLANTA, GEORGIA, WHICH
RESTRICTS ITS CLIENTELE TO WHITE PERSONS, THREE-FOURTHS OF WHOM ARE
TRANSIENT INTERSTATE TRAVELERS, SUED FOR DECLARATORY RELIEF AND TO
ENJOIN ENFORCEMENT OF THE CIVIL RIGHTS ACT OF 1964, CONTENDING THAT THE
PROHIBITION OF RACIAL DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION
AFFECTING COMMERCE EXCEEDED CONGRESS' POWERS UNDER THE COMMERCE CLAUSE
AND VIOLATED OTHER PARTS OF THE CONSTITUTION.  A THREE-JUDGE DISTRICT
COURT UPHELD THE CONSTITUTIONALITY OF TITLE II, SECS. 201(A), (B)(L)
AND (C)(1), THE PROVISIONS ATTACKED, AND ON APPELLEES' COUNTERCLAIM
PERMANENTLY ENJOINED APPELLANT FROM REFUSING TO ACCOMMODATE NEGRO
GUESTS FOR RACIAL REASONS.  HELD: 

1.  TITLE II OF THE CIVIL RIGHTS ACT OF 1964 IS A VALID EXERCISE OF
CONGRESS' POWER UNDER THE COMMERCE CLAUSE AS APPLIED TO A PLACE OF
PUBLIC ACCOMMODATION SERVING INTERSTATE TRAVELERS.  CIVIL RIGHTS CASES,
109 U.S. 3, DISTINGUISHED.  PP. 249-262. 

(A)  THE INTERSTATE MOVEMENT OF PERSONS IS "COMMERCE" WHICH CONCERNS
MORE THAN ONE STATE.  PP. 255-256. 

(B)  THE PROTECTION OF INTERSTATE COMMERCE IS WITHIN THE REGULATORY
POWER OF CONGRESS UNDER THE COMMERCE CLAUSE WHETHER OR NOT THE
TRANSPORTATION OF PERSONS BETWEEN STATES IS "COMMERCIAL."  P. 256. 

(C)  CONGRESS' ACTION IN REMOVING THE DISRUPTIVE EFFECT WHICH IT
FOUND RACIAL DISCRIMINATION HAS ON INTERSTATE TRAVEL IS NOT INVALIDATED
BECAUSE CONGRESS WAS ALSO LEGISLATING AGAINST WHAT IT CONSIDERED TO BE
MORAL WRONGS.  P. 257. 

(D)  CONGRESS HAD POWER TO ENACT APPROPRIATE LEGISLATION WITH REGARD
TO A PLACE OF PUBLIC ACCOMMODATION SUCH AS APPELLANT'S MOTEL EVEN IF IT
IS ASSUMED TO BE OF A PURELY "LOCAL" CHARACTER, AS CONGRESS' POWER OVER
INTERSTATE COMMERCE EXTENDS TO THE REGULATION OF LOCAL INCIDENTS
THEREOF WHICH MIGHT HAVE A SUBSTANTIAL AND HARMFUL EFFECT UPON THAT
COMMERCE.  P. 258. 

(2)  THE PROHIBITION IN TITLE II OF RACIAL DISCRIMINATION IN PUBLIC
ACCOMMODATIONS AFFECTING COMMERCE DOES NOT VIOLATE THE FIFTH AMENDMENT
AS BEING A DEPRIVATION OF PROPERTY OR LIBERTY WITHOUT DUE PROCESS OF
LAW.  PP. 258-261. 

(3)  SUCH PROHIBITION DOES NOT VIOLATE THE THIRTEENTH AMENDMENT AS
BEING "INVOLUNTARY SERVITUDE."  P. 261. 

HEART OF ATLANTA MOTEL, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A DECLARATORY JUDGMENT ACTION, 28 U.S.C. SEC. 2201 AND SEC.
2202 (1958 ED.), ATTACKING THE CONSTITUTIONALITY OF TITLE II OF THE
CIVIL RIGHTS ACT OF 1964, 78 STAT. 241, 243.  (FN1)  IN ADDITION TO
DECLARATORY RELIEF THE COMPLAINT SOUGHT AN INJUNCTION RESTRAINING THE
ENFORCEMENT OF THE ACT AND DAMAGES AGAINST APPELLEES BASED ON ALLEGEDLY
RESULTING INJURY IN THE EVENT COMPLIANCE WAS REQUIRED.  APPELLEES
COUNTERCLAIMED FOR ENFORCEMENT UNDER SEC. 206(A) OF THE ACT AND ASKED
FOR A THREE-JUDGE DISTRICT COURT UNDER SEC. 206(B).  A THREE-JUDGE
COURT, EMPANELED UNDER SEC. 206(B) AS WELL AS 28 U.S.C. SEC. 2282 (1958
ED.), SUSTAINED THE VALIDITY OF THE ACT AND ISSUED A PERMANENT
INJUNCTION ON APPELLEES' COUNTERCLAIM RESTRAINING APPELLANT FROM
CONTINUING TO VIOLATE THE ACT WHICH REMAINS IN EFFECT ON ORDER OF MR.
JUSTICE BLACK, 85 S. CT. 1.  WE AFFIRM THE JUDGMENT. 

1.  THE FACTUAL BACKGROUND AND CONTENTIONS OF THE PARTIES. 

THE CASE COMES HERE ON ADMISSIONS AND STIPULATED FACTS.  APPELLANT
OWNS AND OPERATES THE HEART OF ATLANTA MOTEL WHICH HAS 216 ROOMS
AVAILABLE TO TRANSIENT GUESTS.  THE MOTEL IS LOCATED ON COURTLAND
STREET, TWO BLOCKS FROM DOWNTOWN PEACHTREE STREET.  IT IS READILY
ACCESSIBLE TO INTERSTATE HIGHWAYS 75 AND 85 AND STATE HIGHWAYS 23 AND
41.  APPELLANT SOLICITS PATRONAGE FROM OUTSIDE THE STATE OF GEORGIA
THROUGH VARIOUS NATIONAL ADVERTISING MEDIA, INCLUDING MAGAZINES OF
NATIONAL CIRCULATION; IT MAINTAINS OVER 50 BILLBOARDS AND HIGHWAY SIGNS
WITHIN THE STATE, SOLICITING PATRONAGE FOR THE MOTEL; IT ACCEPTS
CONVENTION TRADE FROM OUTSIDE GEORGIA AND APPROXIMATELY 75% OF ITS
REGISTERED GUESTS ARE FROM OUT OF STATE.  PRIOR TO PASSAGE OF THE ACT
THE MOTEL HAD FOLLOWED A PRACTICE OF REFUSING TO RENT ROOMS TO NEGROES,
AND IT ALLEGED THAT IT INTENDED TO CONTINUE TO DO SO.  IN AN EFFORT TO
PERPETUATE THAT POLICY THIS SUIT WAS FILED. 

THE APPELLANT CONTENDS THAT CONGRESS IN PASSING THIS ACT EXCEEDED ITS
POWER TO REGULATE COMMERCE UNDER ART. I, SEC. 8, CL. 3, OF THE
CONSTITUTION OF THE UNITED STATES; THAT THE ACT VIOLATES THE FIFTH
AMENDMENT BECAUSE APPELLANT IS DEPRIVED OF THE RIGHT TO CHOOSE ITS
CUSTOMERS AND OPERATE ITS BUSINESS AS IT WISHES, RESULTING IN A TAKING
OF ITS LIBERTY AND PROPERTY WITHOUT DUE PROCESS OF LAW AND A TAKING OF
ITS PROPERTY WITHOUT JUST COMPENSATION; AND, FINALLY, THAT BY REQUIRING
APPELLANT TO RENT AVAILABLE ROOMS TO NEGROES AGAINST ITS WILL, CONGRESS
IS SUBJECTING IT TO INVOLUNTARY SERVITUDE IN CONTRAVENTION OF THE
THIRTEENTH AMENDMENT. 

THE APPELLEES COUNTER THAT THE UNAVAILABILITY TO NEGROES OF ADEQUATE
ACCOMMODATIONS INTEREFERES SIGNIFICANTLY WITH INTERSTATE TRAVEL, AND
THAT CONGRESS, UNDER THE COMMERCE CLAUSE, HAS POWER TO REMOVE SUCH
OBSTRUCTIONS AND RESTRAINTS; THAT THE FIFTH AMENDMENT DOES NOT FORBID
REASONABLE REGULATION AND THAT CONSEQUENTIAL DAMAGE DOES NOT CONSTITUTE
A "TAKING" WITHIN THE MEANING OF THAT AMENDMENT; THAT THE THIRTEENTH
AMENDMENT CLAIM FAILS BECAUSE IT IS ENTIRELY FRIVOLOUS TO SAY THAT AN
AMENDMENT DIRECTED TO THE ABOLITION OF HUMAN BONDAGE AND THE REMOVAL OF
WIDESPREAD DISABILITIES ASSOCIATED WITH SLAVERY PLACES DISCRIMINATION
IN PUBLIC ACCOMMODATIONS BEYOND THE REACH OF BOTH FEDERAL AND STATE
LAW. 

AT THE TRIAL THE APPELLANT OFFERED NO EVIDENCE, SUBMITTING THE CASE
ON THE PLEADINGS, ADMISSIONS AND STIPULATION OF FACTS; HOWEVER,
APPELLEES PROVED THE REFUSAL OF THE MOTEL TO ACCEPT NEGRO TRANSIENTS
AFTER THE PASSAGE OF THE ACT.  THE DISTRICT COURT SUSTAINED THE
CONSTITUTIONALITY OF THE SECTIONS OF THE ACT UNDER ATTACK (SECS.
201(A), (B)(1) AND (C)(1)) AND ISSUED A PERMANENT INJUNCTION ON THE
COUNTERCLAIM OF THE APPELLEES.  IT RESTRAINED THE APPELLANT FROM
"REFUSING TO ACCEPT NEGROES AS GUESTS IN THE MOTEL BY REASON OF THEIR
RACE OR COLOR" AND FROM "MAKING ANY DISTINCTION WHATEVER UPON THE BASIS
OF RACE OR COLOR IN THE AVAILABILITY OF THE GOODS, SERVICES,
FACILITIES, PRIVELEGES, ADVANTAGES OR ACCOMMODATIONS OFFERED OR MADE
AVAILABLE TO THE GUESTS OF THE MOTEL, OR TO THE GENERAL PUBLIC, WITHIN
OR UPON ANY OF THE PREMISES OF THE HEART OF ATLANTA MOTEL, INC." 

2.  THE HISTORY OF THE ACT. 

CONGRESS FIRST EVIDENCED ITS INTEREST IN CIVIL RIGHTS LEGISLATION IN
THE CIVIL RIGHTS OR ENFORCEMENT ACT OF APRIL 9, 1866.  (FN2)  THERE
FOLLOWED FOUR ACTS, (FN3) WITH A FIFTH, THE CIVIL RIGHTS ACT OF MARCH
1, 1875, (FN4) CULMINATING THE SERIES.  IN 1883 THIS COURT STRUCK DOWN
THE PUBLIC ACCOMMODATIONS SECTIONS OF THE 1875 ACT IN THE CIVIL RIGHTS
CASES, 109 U.S. 3.  NO MAJOR LEGISLATION IN THIS FIELD HAD BEEN ENACTED
BY CONGRESS FOR 82 YEARS WHEN THE CIVIL RIGHTS ACT OF 1957 (FN5) BECAME
LAW.  IT WAS FOLLOWED BY THE CIVIL RIGHTS ACT OF 1960.  (FN6)  THREE
YEARS LATER, ON JUNE 19, 1963, THE LATE PRESIDENT KENNEDY CALLED FOR
CIVIL RIGHTS LEGISLATION IN A MESSAGE TO CONGRESS TO WHICH HE ATTACHED
A PROPOSED BILL.  ITS STATED PURPOSE WAS: 

"TO PROMOTE THE GENERAL WELFARE BY ELIMINATING DISCRIMINATION BASED
ON RACE, COLOR, RELIGION, OR NATIONAL ORIGIN IN  ...  PUBLIC
ACCOMMODATIONS THROUGH THE EXERCISE BY CONGRESS OF THE POWERS CONFERRED
UPON IT  ...  TO ENFORCE THE PROVISIONS OF THE FOURTEENTH AND FIFTEENTH
AMENDMENTS, TO REGULATE COMMERCE AMONG THE SEVERAL STATES, AND TO MAKE
LAWS NECESSARY AND PROPER TO EXECUTE THE POWERS CONFERRED UPON IT BY
THE CONSTITUTION."  H.R.  DOC. NO. 124, 88TH CONG., 1ST SESS., AT 14. 

BILLS WERE INTRODUCED IN EACH HOUSE OF THE CONGRESS, EMBODYING THE
PRESIDENT'S SUGGESTION, ONE IN THE SENATE BEING S. 1732 (FN7) AND ONE
IN THE HOUSE, H.R. 7152.  HOWEVER, IT WAS NOT UNTIL JULY 2, 1964, UPON
THE RECOMMENDATION OF PRESIDENT JOHNSON, THAT THE CIVIL RIGHTS ACT OF
1964, HERE UNDER ATTACK, WAS FINALLY PASSED. 

AFTER EXTENDED HEARINGS EACH OF THESE BILLS WAS FAVORABLY REPORTED TO
ITS RESPECTIVE HOUSE, H.R. 7152 ON NOVEMBER 20, 1963, H.R. REP. NO.
914, 88TH CONG., 1ST SESS., AND S. 1732 ON FEBRUARY 10, 1964, S. REP.
NO. 872, 88TH CONG., 2D SESS.  ALTHOUGH EACH BILL ORIGINALLY
INCORPORATED EXTENSIVE FINDINGS OF FACT THESE WERE ELIMINATED FROM THE
BILLS AS THEY WERE REPORTED.  THE HOUSE PASSED ITS BILL IN JANUARY 1964
AND SENT IT TO THE SENATE.  THROUGH A BIPARTISAN COALITION OF SENATORS
HUMPHREY AND DIRKSEN, TOGETHER WITH OTHER SENATORS, A SUBSTITUTE WAS
WORKED OUT IN INFORMAL CONFERENCES.  THIS SUBSTITUTE WAS ADOPTED BY THE
SENATE AND SENT TO THE HOUSE WHERE IT WAS ADOPTED WITHOUT CHANGE. 
THIS EXPEDITED PROCEDURE PREVENTED THE USUAL REPORT ON THE SUBSTITUTE
BILL IN THE SENATE AS WELL AS A CONFERENCE COMMITTEE REPORT ORDINARILY
FILED IN SUCH MATTERS.  OUR ONLY FRAME OF REFERENCE AS TO THE
LEGISLATIVE HISTORY OF THE ACT IS, THEREFORE, THE HEARINGS, REPORTS AND
DEBATES ON THE RESPECTIVE BILLS IN EACH HOUSE. 

THE ACT AS FINALLY ADOPTED WAS MOST COMPREHENSIVE, UNDERTAKING TO
PREVENT THROUGH PEACEFUL AND VOLUNTARY SETTLEMENT DISCRIMINATION IN
VOTING, AS WELL AS IN PLACES OF ACCOMMODATION AND PUBLIC FACILITIES,
FEDERALLY SECURED PROGRAMS AND IN EMPLOYMENT.  SINCE TITLE II IS THE
ONLY PORTION UNDER ATTACK HERE, WE CONFINE OUR CONSIDERATION TO THOSE
PUBLIC ACCOMMODATION PROVISIONS. 

3.  TITLE II OF THE ACT. 

THIS TITLE IS DIVIDED INTO SEVEN SECTIONS BEGINNING WITH SEC. 201(A)
WHICH PROVIDES THAT: 

"ALL PERSONS SHALL BE ENTITLED TO THE FULL AND EQUAL ENJOYMENT OF THE
GOODS, SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES, AND ACCOMMODATIONS
OF ANY PLACE OF PUBLIC ACCOMMODATION, AS DEFINED IN THIS SECTION,
WITHOUT DISCRIMINATION OR SEGREGATION ON THE GROUND OF RACE, COLOR,
RELIGION, OR NATIONAL ORIGIN." 

THERE ARE LISTED IN SEC. 201(B) FOUR CLASSES OF BUSINESS
ESTABLISHMENTS, EACH OF WHICH "SERVES THE PUBLIC" AND "IS A PLACE OF
PUBLIC ACCOMMODATION" WITHIN THE MEANING OF SEC.  201(A) "IF ITS
OPERATIONS AFFECT COMMERCE, OR IF DISCRIMINATION OR SEGREGATION BY IT
IS SUPPORTED BY STATE ACTION."   THE COVERED ESTABLISHMENTS ARE: 

"(1)  ANY INN, HOTEL, MOTEL, OR OTHER ESTABLISHMENT WHICH PROVIDES
LODGING TO TRANSIENT GUESTS, OTHER THAN AN ESTABLISHMENT LOCATED WITHIN
A BUILDING WHICH CONTAINS NOT MORE THAN FIVE ROOMS FOR RENT OR HIRE AND
WHICH IS ACTUALLY OCCUPIED BY THE PROPRIETOR OF SUCH ESTABLISHMENT AS
HIS RESIDENCE: 

"(2)  ANY RESTAURANT, CAFETERIA  ...  (NOT HERE INVOLVED): 

"(3)  ANY MOTION PICTURE HOUSE  ...  (NOT HERE INVOLVED): 

"(4)  ANY ESTABLISHMENT ...  WHICH IS PHYSICALLY LOCATED WITHIN THE
PREMISES OF ANY ESTABLISHMENT OTHERWISE COVERED BY THIS SUBSECTION, OR
...  WITHIN THE PREMISES OF WHICH IS PHYSICALLY LOCATED ANY SUCH
COVERED ESTABLISHMENT  ...  (NOT HERE INVOLVED)." 

ABOVE ESTABLISHMENTS.  IT FIRST DECLARES THAT "ANY INN, HOTEL, MOTEL,
OR OTHER ESTABLISHMENT WHICH PROVIDES LODGING TO TRANSIENT GUESTS"
AFFECTS COMMERCE PER SE.  RESTAURANTS, CAFETERIAS, ETC., IN CLASS TWO
AFFECT COMMERCE ONLY IF THEY SERVE OR OFFER TO SERVE INTERSTATE
TRAVELERS OR IF A SUBSTANTIAL PORTION OF THE FOOD WHICH THEY SERVE OR
PRODUCTS WHICH THEY SELL HAVE "MOVED IN COMMERCE."  MOTION PICTURE
HOUSES AND OTHER PLACES LISTED IN CLASS THREE AFFECT COMMERCE IF THEY
CUSTOMARILY PRESENT FILMS, PERFORMANCES, ETC., "WHICH MOVE IN
COMMERCE."  AND THE ESTABLISHMENTS LISTED IN CLASS FOUR AFFECT COMMERCE
IF THEY ARE WITHIN, OR INCLUDE WITHIN THEIR OWN PREMISES, AN
ESTABLISHMENT "THE OPERATIONS OF WHICH AFFECT COMMERCE."  PRIVATE CLUBS
ARE EXCEPTED UNDER CERTAIN CONDITIONS.  SEE SEC. 201(E). 

SUPPORTED BY STATE ACTION WHEN CARRIED ON UNDER COLOR OF ANY LAW,
STATUTE, ORDINANCE, REGULATION OR ANY CUSTOM OR USAGE REQUIRED OR
ENFORCED BY OFFICIALS OF THE STATE OR ANY OF ITS SUBDIVISIONS. 

IN ADDITION, SEC. 202 AFFIRMATIVELY DECLARES THAT ALL PERSONS "SHALL
BE ENTITLED TO BE FREE, AT ANY ESTABLISHMENT OR PLACE, FROM
DISCRIMINATION OR SEGREGATION OF ANY KIND ON THE GROUND OF RACE, COLOR,
RELIGION, OR NATIONAL ORIGIN, IF SUCH DISCRIMINATION OR SEGREGATION IS
OR PURPORTS TO BE REQUIRED BY ANY LAW, STATUTE, ORDINANCE, REGULATION,
RULE, OR ORDER OF A STATE OR ANY AGENCY OR POLITICAL SUBDIVISION
THEREOF." 

FINALLY, SEC. 203 PROHIBITS THE WITHHOLDING OR DENIAL, ETC., OF ANY
RIGHT OR PRIVILEGE SECURED BY SEC. 201 AND SEC. 202 OR THE
INTIMIDATION, THREATENING OR COERCION OF ANY PERSON WITH THE PURPOSE OF
INTERFERING WITH ANY SUCH RIGHT OR THE PUNISHING, ETC., OF ANY PERSON
FOR EXERCISING OR ATTEMPTING TO EXERCISE ANY SUCH RIGHT. 

THE REMAINING SECTIONS OF THE TITLE ARE REMEDIAL ONES FOR VIOLATIONS
OF ANY OF THE PREVIOUS SECTIONS.  REMEDIES ARE LIMITED TO CIVIL ACTIONS
FOR PREVENTIVE RELIEF.  THE ATTORNEY GENERAL MAY BRING SUIT WHERE HE
HAS "REASONABLE CAUSE TO BELIEVE THAT ANY PERSON OR GROUP OF PERSONS IS
ENGAGED IN A PATTERN OR PRACTICE OF RESISTANCE TO THE FULL ENJOYMENT OF
ANY OF THE RIGHTS SECURED BY THIS TITLE, AND THAT THE PATTERN OR
PRACTICE IS OF SUCH A NATURE AND IS INTENDED TO DENY THE FULL EXERCISE
OF THE RIGHTS HEREIN DESCRIBED  ...  ."  SEC. 206(A). 

A PERSON AGGRIEVED MAY BRING SUIT, IN WHICH THE ATTORNEY GENERAL MAY
BE PERMITTED TO INTERVENE.  THIRTY DAYS' WRITTEN NOTICE BEFORE FILING
ANY SUCH ACTION MUST BE GIVEN TO THE APPROPRIATE AUTHORITIES OF A STATE
OR SUBDIVISION THE LAW OF WHICH PROHIBITS THE ACT COMPLAINED OF AND
WHICH HAS ESTABLISHED AN AUTHORITY WHICH MAY GRANT RELIEF THEREFROM. 
SEC. 204(C).  IN STATES WHERE SUCH CONDITION DOES NOT EXIST THE COURT
AFTER A CASE IS FILED MAY REFER IT TO THE COMMUNITY RELATIONS SERVICE
WHICH IS ESTABLISHED UNDER TITLE X OF THE ACT.  SEC. 204(D).  THIS
TITLE ESTABLISHES SUCH SERVICE IN THE DEPARTMENT OF COMMERCE, PROVIDES
FOR A DIRECTOR TO BE APPOINTED BY THE PRESIDENT WITH THE ADVICE AND
CONSENT OF THE SENATE AND GRANTS IT CERTAIN POWERS, INCLUDING THE POWER
TO HOLD HEARINGS, WITH REFERENCE TO MATTERS COMING TO ITS ATTENTION BY
REFERENCE FROM THE COURT OR BETWEEN COMMUNITIES AND PERSONS INVOLVED IN
DISPUTES ARISING UNDER THE ACT. 

4.  APPLICATION OF TITLE II TO HEART OF ATLANTA MOTEL. 

IT IS ADMITTED THAT THE OPERATION OF THE MOTEL BRINGS IT WITHIN THE
PROVISIONS OF SEC.  201(A) OF THE ACT AND THAT APPELLANT REFUSED TO
PROVIDE LODGING FOR TRANSIENT NEGROES BECAUSE OF THEIR RACE OR COLOR
AND THAT IT INTENDS TO CONTINUE THAT POLICY UNLESS RESTRAINED. 

THE SOLE QUESTION POSED IS, THEREFORE, THE CONSTITUTIONALITY OF THE
CIVIL RIGHTS ACT OF 1964 AS APPLIED TO THESE FACTS.  THE LEGISLATIVE
HISTORY OF THE ACT INDICATES THAT CONGRESS BASED THE ACT ON SEC. 5 AND
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AS WELL AS ITS
POWER TO REGULATE INTERSTATE COMMERCE UNDER ART. I, SEC. 8, CL. 3, OF
THE CONSTITUTION. 

THE SENATE COMMERCE COMMITTEE MADE IT QUITE CLEAR THAT THE
FUNDAMENTAL OBJECT OF TITLE II WAS TO VINDICATE "THE DEPRIVATION OF
PERSONAL DIGNITY THAT SURELY ACCOMPANIES DENIALS OF EQUAL ACCESS TO
PUBLIC ESTABLISHMENTS."  AT THE SAME TIME, HOWEVER, IT NOTED THAT SUCH
AN OBJECTIVE HAS BEEN AND COULD BE READILY ACHIEVED "BY CONGRESSIONAL
ACTION BASED ON THE COMMERCE POWER OF THE CONSTITUTION."   S. REP. NO.
872, SUPRA, AT 16-17.  OUR STUDY OF THE LEGISLATIVE RECORD, MADE IN THE
LIGHT OF PRIOR CASES, HAS BROUGHT US TO THE CONCLUSION THAT CONGRESS
POSSESSED AMPLE POWER IN THIS REGARD, AND WE HAVE THEREFORE NOT
CONSIDERED THE OTHER GROUNDS RELIED UPON.  THIS IS NOT TO SAY THAT THE
REMAINING AUTHORITY UPON WHICH IT ACTED WAS NOT ADEQUATE, A QUESTION
UPON WHICH WE DO NOT PASS, BUT MERELY THAT SINCE THE COMMERCE POWER IS
SUFFICIENT FOR OUR DECISION HERE WE HAVE CONSIDERED IT ALONE.  NOR IS
SEC. 201(D) OR SEC. 202, HAVING TO DO WITH STATE ACTION, INVOLVED HERE
AND WE DO NOT PASS UPON EITHER OF THOSE SECTIONS.    5.  THE CIVIL
RIGHTS CASES, 109 U.S. 3 (1883), AND THEIR APPLICATION. 

IN LIGHT OF OUR GROUND FOR DECISION, IT MIGHT BE WELL AT THE OUTSET
TO DISCUSS THE CIVIL RIGHTS CASES, SUPRA, WHICH DECLARED PROVISIONS OF
THE CIVIL RIGHTS ACT OF 1875 UNCONSTITUTIONAL.  18 STAT. 335, 336.  WE
THINK THAT DECISION INAPPOSITE, AND WITHOUT PRECEDENTIAL VALUE IN
DETERMINING THE CONSTITUTIONALITY OF THE PRESENT ACT.  UNLIKE TITLE II
OF THE PRESENT LEGISLATION, THE 1875 ACT BROADLY PROSCRIBED
DISCRIMINATION IN "INNS, PUBLIC CONVEYANCES ON LAND OR WATER, THEATERS,
AND OTHER PLACES OF PUBLIC AMUSEMENT," WITHOUT LIMITING THE CATEGORIES
OF AFFECTED BUSINESSES TO THOSE IMPINGING UPON INTERSTATE COMMERCE.  IN
CONTRAST, THE APPLICABILITY OF TITLE II IS CAREFULLY LIMITED TO
ENTERPRISES HAVING A DIRECT AND SUBSTANTIAL RELATION TO THE INTERSTATE
FLOW OF GOODS AND PEOPLE, EXCEPT WHERE STATE ACTION IS INVOLVED. 
FURTHER, THE FACT THAT CERTAIN KINDS OF BUSINESSES MAY NOT IN 1875 HAVE
BEEN SUFFICIENTLY INVOLVED IN INTERSTATE COMMERCE TO WARRANT BRINGING
THEM WITHIN THE AMBIT OF THE COMMERCE POWER IS NOT NECESSARILY
DISPOSITIVE OF THE SAME QUESTION TODAY.  OUR POPULACE HAD NOT REACHED
ITS PRESENT MOBILITY, NOR WERE FACILITIES, GOODS AND SERVICES
CIRCULATING AS READILY IN INTERSTATE COMMERCE AS THEY ARE TODAY. 
ALTHOUGH THE PRINCIPLES WHICH WE APPLY TODAY ARE THOSE FIRST FORMULATED
BY CHIEF JUSTICE MARSHALL IN GIBBONS V. OGDEN, 9 WHEAT.  1 (1824), THE
CONDITIONS OF TRANSPORTATION AND COMMERCE HAVE CHANGED DRAMATICALLY,
AND WE MUST APPLY THOSE PRINCIPLES TO THE PRESENT STATE OF COMMERCE. 
THE SHEER INCREASE IN VOLUME OF INTERSTATE TRAFFIC ALONE WOULD GIVE
DISCRIMINATORY PRACTICES WHICH INHIBIT TRAVEL A FAR LARGER IMPACT UPON
THE NATION'S COMMERCE THAN SUCH PRACTICES HAD ON THE ECONOMY OF ANOTHER
DAY.  FINALLY, THERE IS LANGUAGE IN THE CIVIL RIGHTS CASES WHICH
INDICATES THAT THE COURT DID NOT FULLY CONSIDER WHETHER THE 1875 ACT
COULD BE SUSTAINED AS AN EXERCISE OF THE COMMERCE POWER.  THOUGH THE
COURT OBSERVED THAT "NO ONE WILL CONTEND THAT THE POWER TO PASS IT WAS
CONTAINED IN THE CONSTITUTION BEFORE THE ADOPTION OF THE LAST THREE
AMENDMENTS (THIRTEENTH, FOURTEENTH, AND FIFTEENTH)," THE COURT WENT ON
SPECIFICALLY TO NOTE THAT THE ACT WAS NOT "CONCEIVED" IN TERMS OF THE
COMMERCE POWER AND EXPRESSLY POINTED OUT: 

"OF COURSE, THESE REMARKS (AS TO LACK OF CONGRESSIONAL POWER) DO NOT
APPLY TO THOSE CASES IN WHICH CONGRESS IS CLOTHED WITH DIRECT AND
PLENARY POWERS OF LEGISLATION OVER THE WHOLE SUBJECT, ACCOMPANIED WITH
AN EXPRESS OR IMPLIED DENIAL OF SUCH POWER TO THE STATES, AS IN THE
REGULATION OF COMMERCE WITH FOREIGN NATIONS, AMONG THE SEVERAL STATES,
AND WITH THE INDIAN TRIBES  ...  .  IN THESE CASES CONGRESS HAS POWER
TO PASS LAWS FOR REGULATING THE SUBJECTS SPECIFIED IN EVERY DETAIL, AND
THE CONDUCT AND TRANSACTIONS OF INDIVIDUALS IN RESPECT THEREOF."  AT
18. 

SINCE THE COMMERCE POWER WAS NOT RELIED ON BY THE GOVERNMENT AND WAS
WITHOUT SUPPORT IN THE RECORD IT IS UNDERSTANDABLE THAT THE COURT
NARROWED ITS INQUIRY AND EXCLUDED THE COMMERCE CLAUSE AS A POSSIBLE
SOURCE OF POWER.  IN ANY EVENT, IT IS CLEAR THAT SUCH A LIMITATION
RENDERS THE OPINION DEVOID OF AUTHORITY FOR THE PROPOSITION THAT THE
COMMERCE CLAUSE GIVES NO POWER TO CONGRESS TO REGULATE DISCRIMINATORY
PRACTICES NOW FOUND SUBSTANTIALLY TO AFFECT INTERSTATE COMMERCE.  WE,
THEREFORE, CONCLUDE THAT THE CIVIL RIGHTS CASES HAVE NO RELEVANCE TO
THE BASIS OF DECISION HERE WHERE THE ACT EXPLICITLY RELIES UPON THE
COMMERCE POWER, AND WHERE THE RECORD IS FILLED WITH TESTIMONY OF
OBSTRUCTIONS AND RESTRAINTS RESULTING FROM THE DISCRIMINATIONS FOUND TO
BE EXISTING.  WE NOW PASS TO THAT PHASE OF THE CASE. 

6.  THE BASIS OF CONGRESSIONAL ACTION. 

WHILE THE ACT AS ADOPTED CARRIED NO CONGRESSIONAL FINDINGS THE RECORD
OF ITS PASSAGE THROUGH EACH HOUSE IS REPLETE WITH EVIDENCE OF THE
BURDENS THAT DISCRIMINATION BY RACE OR COLOR PLACES UPON INTERSTATE
COMMERCE.  SEE HEARINGS BEFORE SENATE COMMITTEE ON COMMERCE ON S. 1732,
88TH CONG., 1ST SESS.; S. REP. NO. 872, SUPRA; HEARINGS BEFORE SENATE
COMMITTEE ON THE JUDICIARY ON S. 1731, 88TH CONG., 1ST SESS.; HEARINGS
BEFORE HOUSE SUBCOMMITTEE NO. 5 OF THE COMMITTEE ON THE JUDICIARY ON
MISCELLANEOUS PROPOSALS REGARDING CIVIL RIGHTS, 88TH CONG., 1ST SESS.,
SER.  4; H.R. REP. NO. 914, SUPRA.  THIS TESTIMONY INCLUDED THE FACT
THAT OUR PEOPLE HAVE BECOME INCREASINGLY MOBILE WITH MILLIONS OF PEOPLE
OF ALL RACES TRAVELING FROM STATE TO STATE; THAT NEGROES IN PARTICULAR
HAVE BEEN THE SUBJECT OF DISCRIMINATION IN TRANSIENT ACCOMMODATIONS,
HAVING TO TRAVEL GREAT DISTANCES TO SECURE THE SAME; THAT OFTEN THEY
HAVE BEEN UNABLE TO OBTAIN ACCOMMODATIONS AND HAVE HAD TO CALL UPON
FRIENDS TO PUT THEM UP OVERNIGHT, S. REP. NO. 872, SUPRA, AT 14-22; AND
THAT THESE CONDITIONS HAD BECOME SO ACUTE AS TO REQUIRE THE LISTING OF
AVAILABLE LODGING FOR NEGROES IN A SPECIAL GUIDEBOOK WHICH WAS ITSELF
"DRAMATIC TESTIMONY TO THE DIFFICULTIES" NEGROES ENCOUNTER IN TRAVEL. 
SENATE COMMERCE COMMITTEE HEARINGS, SUPRA, AT 692-694.  THESE
EXCLUSIONARY PRACTICES WERE FOUND TO BE NATIONWIDE, THE UNDER SECRETARY
OF COMMERCE TESTIFYING THAT THERE IS "NO QUESTION THAT THIS
DISCRIMINATION IN THE NORTH STILL EXISTS TO A LARGE DEGREE" AND IN THE
WEST AND MIDWEST AS WELL.  ID., AT 735, 744.  THIS TESTIMONY INDICATED
A QUALITATIVE AS WELL AS QUANTITATIVE EFFECT ON INTERSTATE TRAVEL BY
NEGROES.  THE FORMER WAS THE OBVIOUS IMPAIRMENT OF THE NEGRO TRAVELER'S
PLEASURE AND CONVENIENCE THAT RESULTED WHEN HE CONTINUALLY WAS
UNCERTAIN OF FINDING LODGING.  AS FOR THE LATTER, THERE WAS EVIDENCE
THAT THIS UNCERTAINTY STEMMING FROM RACIAL DISCRIMINATION HAD THE
EFFECT OF DISCOURAGING TRAVEL ON THE PART OF A SUBSTANTIAL PORTION OF
THE NEGRO COMMUNITY.  ID., AT 744.  THIS WAS THE CONCLUSION NOT ONLY OF
THE UNDER SECRETARY OF COMMERCE BUT ALSO OF THE ADMINISTRATOR OF THE
FEDERAL AVIATION AGENCY WHO WROTE THE CHAIRMAN OF THE SENATE COMMERCE
COMMITTEE THAT IT WAS HIS "BELIEF THAT AIR COMMERCE IS ADVERSELY
AFFECTED BY THE DENIAL TO A SUBSTANTIAL SEGMENT OF THE TRAVELING PUBLIC
OF ADEQUATE AND DESEGREGATED PUBLIC ACCOMMODATIONS."  ID., AT 12-13. 
WE SHALL NOT BURDEN THIS OPINION WITH FURTHER DETAILS SINCE THE
VOLUMINOUS TESTIMONY PRESENTS OVERWHELMING EVIDENCE THAT DISCRIMINATION
BY HOTELS AND MOTELS IMPEDES INTERSTATE TRAVEL. 

7.  THE POWER OF CONGRESS OVER INTERSTATE TRAVEL. 

THE POWER OF CONGRESS TO DEAL WITH THESE OBSTRUCTIONS DEPENDS ON THE
MEANING OF THE COMMERCE CLAUSE.  ITS MEANING WAS FIRST ENUNCIATED 140
YEARS AGO BY THE GREAT CHIEF JUSTICE JOHN MARSHALL IN GIBBONS V. OGDEN,
9 WHEAT.  1 (1824), IN THESE WORDS: 

"THE SUBJECT TO BE REGULATED IS COMMERCE; AND  ...  TO ASCERTAIN THE
EXTENT OF THE POWER, IT BECOMES NECESSARY TO SETTLE THE MEANING OF THE
WORD.  THE COUNSEL FOR THE APPELLEE WOULD LIMIT IT TO TRAFFIC, TO
BUYING AND SELLING, OR THE INTERCHANGE OF COMMODITIES  ...  BUT IT IS
SOMETHING MORE: IT IS INTERCOURSE  ...  BETWEEN NATIONS, AND PARTS OF
NATIONS, IN ALL ITS BRANCHES, AND IS REGULATED BY PRESCRIBING RULES FOR
CARRYING ON THAT INTERCOURSE.  (AT 189-190.) 

     *         *         *         *         * 

"TO WHAT COMMERCE DOES THIS POWER EXTEND?  THE CONSTITUTION INFORMS
US, TO COMMERCE 'WITH FOREIGN NATIONS, AND AMONG THE SEVERAL STATES,
AND WITH THE INDIAN TRIBES.' 

"IT HAS, WE BELIEVE, BEEN UNIVERSALLY ADMITTED, THAT THESE WORDS
COMPREHEND EVERY SPECIES OF COMMERCIAL INTERCOURSE  ...  .  NO SORT OF
TRADE CAN BE CARRIED ON  ...  TO WHICH THIS POWER DOES NOT EXTEND.  (AT
193-194.) 

     *   *         *         *         * 

"THE SUBJECT TO WHICH THE POWER IS NEXT APPLIED, IS TO COMMERCE
'AMONG THE SEVERAL STATES.'  THE WORD 'AMONG' MEANS INTERMINGLED  ...
. 

     *       *         *         *         * 

"  ...  IT MAY VERY PROPERLY BE RESTRICTED TO THAT COMMERCE WHICH
CONCERNS MORE STATES THAN ONE ...  .  THE GENIUS AND CHARACTER OF THE
WHOLE GOVERNMENT SEEM TO BE, THAT ITS ACTION IS TO BE APPLIED TO ALL
THE ...  INTERNAL CONCERNS (OF THE NATION) WHICH AFFECT THE STATES
GENERALLY; BUT NOT TO THOSE WHICH ARE COMPLETELY WITHIN A PARTICULAR
STATE, WHICH DO NOT AFFECT OTHER STATES, AND WITH WHICH IT IS NOT
NECESSARY TO INTERFERE, FOR THE PURPOSE OF EXECUTING SOME OF THE
GENERAL POWERS OF THE GOVERNMENT.  (AT 194-195.) 

     *         *         *         *         * 

"WE ARE NOW ARRIVED AT THE INQUIRY - WHAT IS THIS POWER? 

"IT IS THE POWER TO REGULATE; THAT IS, TO PRESCRIBE THE RULE BY WHICH
COMMERCE IS TO BE GOVERNED.  THIS POWER, LIKE ALL OTHERS VESTED IN
CONGRESS, IS COMPLETE IN ITSELF, MAY BE EXERCISED TO ITS UTMOST EXTENT,
AND ACKNOWLEDGES NO LIMITATIONS, OTHER THAN ARE PRESCRIBED IN THE
CONSTITUTION  ... .  IF, AS HAS ALWAYS BEEN UNDERSTOOD, THE SOVEREIGNTY
OF CONGRESS  ...  IS PLENARY AS TO THOSE OBJECTS (SPECIFIED IN THE
CONSTITUTION), THE POWER OVER COMMERCE  ...  IS VESTED IN CONGRESS AS
ABSOLUTELY AS IT WOULD BE IN A SINGLE GOVERNMENT, HAVING IN ITS
CONSTITUTION THE SAME RESTRICTIONS ON THE EXERCISE OF THE POWER AS ARE
FOUND IN THE CONSTITUTION OF THE UNITED STATES.  THE WISDOM AND THE
DISCRETION OF CONGRESS, THEIR IDENTITY WITH THE PEOPLE, AND THE
INFLUENCE WHICH THEIR CONSTITUENTS POSSESS AT ELECTIONS, ARE, IN THIS,
AS IN MANY OTHER INSTANCES, AS THAT, FOR EXAMPLE, OF DECLARING WAR, THE
SOLE RESTRAINTS ON WHICH THEY HAVE RELIED, TO SECURE THEM FROM ITS
ABUSE.  THEY ARE THE RESTRAINTS ON WHICH THE PEOPLE MUST OFTEN RELY
SOLELY, IN ALL REPRESENTATIVE GOVERNMENTS.  (AT 196-197.)" 

IN SHORT, THE DETERMINATIVE TEST OF THE EXERCISE OF POWER BY THE
CONGRESS UNDER THE COMMERCE CLAUSE IS SIMPLY WHETHER THE ACTIVITY
SOUGHT TO BE REGULATED IS "COMMERCE WHICH CONCERNS MORE STATES THAN
ONE" AND HAS A REAL AND SUBSTANTIAL RELATION TO THE NATIONAL INTEREST. 
LET US NOW TURN TO THIS FACET OF THE PROBLEM. 

THAT THE "INTERCOURSE" OF WHICH THE CHIEF JUSTICE SPOKE INCLUDED THE
MOVEMENT OF PERSONS THROUGH MORE STATES THAN ONE WAS SETTLED AS EARLY
AS 1849, IN THE PASSENGER CASES, 7 HOW.  283, WHERE MR. JUSTICE MCLEAN
STATED:  "THAT THE TRANSPORTATION OF PASSENGERS IS A PART OF COMMERCE
IS NOT NOW AN OPEN QUESTION."  AT 401.  AGAIN IN 1913 MR. JUSTICE
MCKENNA, SPEAKING FOR THE COURT, SAID: "COMMERCE AMONG THE STATES, WE
HAVE SAID, CONSISTS OF INTERCOURSE AND TRAFFIC BETWEEN THEIR CITIZENS,
AND INCLUDES THE TRANSPORTATION OF PERSONS AND PROPERTY."  HOKE V.
UNITED STATES, 227 U.S. 308, 320.  AND ONLY FOUR YEARS LATER IN 1917 IN
CAMINETTI V. UNITED STATES, 242 U.S. 470, MR. JUSTICE DAY HELD FOR THE
COURT: 

"THE TRANSPORTATION OF PASSENGERS IN INTERSTATE COMMERCE, IT HAS LONG
BEEN SETTLED, IS WITHIN THE REGULATORY POWER OF CONGRESS, UNDER THE
COMMERCE CLAUSE OF THE CONSTITUTION, AND THE AUTHORITY OF CONGRESS TO
KEEP THE CHANNELS OF INTERSTATE COMMERCE FREE FROM IMMORAL AND
INJURIOUS USES HAS BEEN FREQUENTLY SUSTAINED, AND IS NO LONGER OPEN TO
QUESTION."  AT 491. 

NOR DOES IT MAKE ANY DIFFERENCE WHETHER THE TRANSPORTATION IS
COMMERCIAL IN CHARACTER.  ID., AT 484-486.  IN MORGAN V. VIRGINIA, 328
U.S. 373 (1946), MR. JUSTICE REED OBSERVED AS TO THE MODERN MOVEMENT OF
PERSONS AMONG THE STATES: 

"THE RECENT CHANGES IN TRANSPORTATION BROUGHT ABOUT BY THE COMING OF
AUTOMOBILES DO NOT SEEM OF GREAT SIGNIFICANCE IN THE PROBLEM.  PEOPLE
OF ALL RACES TRAVEL TODAY MORE EXTENSIVELY THAN IN 1878 WHEN THIS COURT
FIRST PASSED UPON STATE REGULATION OF RACIAL SEGREGATION IN COMMERCE. 
IT BUT EMPHASIZES THE SOUNDNESS OF THIS COURT'S EARLY CONCLUSION IN
HALL V. DECUIR, 95 U.S. 485."  AT 383. 

THE SAME INTEREST IN PROTECTING INTERSTATE COMMERCE WHICH LED
CONGRESS TO DEAL WITH SEGREGATION IN INTERSTATE CARRIERS AND THE WHITE
SLAVE TRAFFIC HAS PROMPTED IT TO EXTEND THE EXERCISE OF ITS POWER TO
GAMBLING, LOTTERY CASE, 188 U.S. 321 (1903); TO CRIMINAL ENTERPRISES,
BROOKS V. UNITED STATES, 267 U.S. 432 (1925); TO DECEPTIVE PRACTICES IN
THE SALE OF PRODUCTS, FEDERAL TRADE COMM'N V. MANDEL BROS., INC., 359
U.S. 385 (1959); TO FRAUDULENT SECURITY TRANSACTIONS, SECURITIES &
EXCHANGE COMM'N V. RALSTON PURINA CO., 346 U.S. 119 (1953); TO
MISBRANDING OF DRUGS, WEEKS V. UNITED STATES, 245 U.S. 618 (1918); TO
WAGES AND HOURS, UNITED STATES V. DARBY, 312 U.S. 100 (1941); TO
MEMBERS OF LABOR UNIONS, LABOR BOARD V. JONES & LAUGHLIN STEEL CORP.,
301 U.S. 1 (1937); TO CROP CONTROL, WICKARD V. FILBURN, 317 U.S. 111
(1942); TO DISCRIMINATION AGAINST SHIPPERS, UNITED STATES V. BALTIMORE
& OHIO R. CO., 333 U.S. 169 (1948); TO THE PROTECTION OF SMALL BUSINESS
FROM INJURIOUS PRICE CUTTING, MOORE V. MEAD'S FINE BREAD CO., 348 U.S.
115 (1954); TO RESALE PRICE MAINTENANCE, HUDSON DISTRIBUTORS, INC. V.
ELI LILLY & CO., 377 U.S. 386 (1964), SCHWEGMANN V. CALVERT DISTILLERS
CORP., 341 U.S. 384 (1951); TO PROFESSIONAL FOOTBALL, RADOVICH V.
NATIONAL FOOTBALL LEAGUE, 352 U.S. 445 (1957); AND TO RACIAL
DISCRIMINATION BY OWNERS AND MANAGERS OF TERMINAL RESTAURANTS, BOYNTON
V. VIRGINIA, 364 U.S. 454 (1960). 

THAT CONGRESS WAS LEGISLATING AGAINST MORAL WRONGS IN MANY OF THESE
AREAS RENDERED ITS ENACTMENTS NO LESS VALID.  IN FRAMING TITLE II OF
THIS ACT CONGRESS WAS ALSO DEALING WITH WHAT IT CONSIDERED A MORAL
PROBLEM.  BUT THAT FACT DOES NOT DETRACT FROM THE OVERWHELMING EVIDENCE
OF THE DISRUPTIVE EFFECT THAT RACIAL DISCRIMINATION HAS HAD ON
COMMERCIAL INTERCOURSE.  IT WAS THIS BURDEN WHICH EMPOWERED CONGRESS TO
ENACT APPROPRIATE LEGISLATION, AND, GIVEN THIS BASIS FOR THE EXERCISE
OF ITS POWER, CONGRESS WAS NOT RESTRICTED BY THE FACT THAT THE
PARTICULAR OBSTRUCTION TO INTERSTATE COMMERCE WITH WHICH IT WAS DEALING
WAS ALSO DEEMED A MORAL AND SOCIAL WRONG.    IT IS SAID THAT THE
OPERATION OF THE MOTEL HERE IS OF A PURELY LOCAL CHARACTER.  BUT,
ASSUMING THIS TO BE TRUE, "IF IT IS INTERSTATE COMMERCE THAT FEELS THE
PINCH, IT DOES NOT MATTER HOW LOCAL THE OPERATION WHICH APPLIES THE
SQUEEZE."  UNITED STATES V. WOMEN'S SPORTSWEAR MFRS.  ASSN., 336 U.S.
460, 464 (1949).  SEE LABOR BOARD V. JONES & LAUGHLIN STEEL CORP.,
SUPRA.  AS CHIEF JUSTICE STONE PUT IT IN UNITED STATES V. DARBY,
SUPRA: 

"THE POWER OF CONGRESS OVER INTERSTATE COMMERCE IS NOT CONFINED TO
THE REGULATION OF COMMERCE AMONG THE STATES.  IT 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.  SEE
MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 421."  AT 118. 

THUS THE POWER OF CONGRESS TO PROMOTE INTERSTATE COMMERCE ALSO
INCLUDES THE POWER TO REGULATE THE LOCAL INCIDENTS THEREOF, INCLUDING
LOCAL ACTIVITIES IN BOTH THE STATES OF ORIGIN AND DESTINATION, WHICH
MIGHT HAVE A SUBSTANTIAL AND HARMFUL EFFECT UPON THAT COMMERCE.  ONE
NEED ONLY EXAMINE THE EVIDENCE WHICH WE HAVE DISCUSSED ABOVE TO SEE
THAT CONGRESS MAY - AS IT HAS - PROHIBIT RACIAL DISCRIMINATION BY
MOTELS SERVING TRAVELERS, HOWEVER "LOCAL" THEIR OPERATIONS MAY APPEAR. 

NOR DOES THE ACT DEPRIVE APPELLANT OF LIBERTY OR PROPERTY UNDER THE
FIFTH AMENDMENT.  THE COMMERCE POWER INVOKED HERE BY THE CONGRESS IS A
SPECIFIC AND PLENARY ONE AUTHORIZED BY THE CONSTITUTION ITSELF.  THE
ONLY QUESTIONS ARE:  (1) WHETHER CONGRESS HAD A RATIONAL BASIS FOR
FINDING THAT RACIAL DISCRIMINATION BY MOTELS AFFECTED COMMERCE, AND (2)
IF IT HAD SUCH A BASIS, WHETHER THE MEANS IT SELECTED TO ELIMINATE THAT
EVIL ARE REASONABLE AND APPROPRIATE.  IF THEY ARE, APPELLANT HAS NO
"RIGHT" TO SELECT ITS GUESTS AS IT SEES FIT, FREE FROM GOVERNMENTAL
REGULATION. 

THERE IS NOTHING NOVEL ABOUT SUCH LEGISLATION.  THIRTY-TWO STATES
(FN8) NOW HAVE IT ON THEIR BOOKS EITHER BY STATUTE OR EXECUTIVE ORDER
AND MANY CITIES PROVIDE SUCH REGULATION.  SOME OF THESE ACTS GO BACK
FOURSCORE YEARS.  IT HAS BEEN REPEATEDLY HELD BY THIS COURT THAT SUCH
LAWS DO NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  PERHAPS THE FIRST SUCH HOLDING WAS IN THE CIVIL RIGHTS
CASES THEMSELVES, WHERE MR. JUSTICE BRADLEY FOR THE COURT INFERENTIALLY
FOUND THAT INNKEEPERS, "BY THE LAWS OF ALL THE STATES, SO FAR AS WE ARE
AWARE, ARE BOUND, TO THE EXTENT OF THEIR FACILITIES, TO FURNISH PROPER
ACCOMMODATION TO ALL UNOBJECTIONABLE PERSONS WHO IN GOOD FAITH APPLY
FOR THEM."  AT 25. 

AS WE HAVE POINTED OUT, 32 STATES NOW HAVE SUCH PROVISIONS AND NO
CASE HAS BEEN CITED TO US WHERE THE ATTACK ON A STATE STATUTE HAS BEEN
SUCCESSFUL, EITHER IN FEDERAL OR STATE COURTS.  INDEED, IN SOME CASES
THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OBJECTIONS HAVE BEEN
SPECIFICALLY DISCARDED IN THIS COURT.  BOB-LO EXCURSION CO. V.
MICHIGAN, 333 U.S. 28, 34, N. 12 (1948).  AS A RESULT THE
CONSTITUTIONALITY OF SUCH STATE STATUTES STANDS UNQUESTIONED.  "THE
AUTHORITY OF THE FEDERAL GOVERNMENT OVER INTERSTATE COMMERCE DOES NOT
DIFFER," IT WAS HELD IN UNITED STATES V. ROCK ROYAL CO-OP., INC., 307
U.S. 533 (1939), "IN EXTENT OR CHARACTER FROM THAT RETAINED BY THE
STATES OVER INTRASTATE COMMERCE."  AT 569-570.  SEE ALSO BOWLES V.
WILLINGHAM, 321 U.S. 503 (1944). 

IT IS DOUBTFUL IF IN THE LONG RUN APPELLANT WILL SUFFER ECONOMIC LOSS
AS A RESULT OF THE ACT.  EXPERIENCE IS TO THE CONTRARY WHERE
DISCRIMINATION IS COMPLETELY OBLITERATED AS TO ALL PUBLIC
ACCOMMODATIONS.  BUT WHETHER THIS BE TRUE OR NOT IS OF NO CONSEQUENCE
SINCE THIS COURT HAS SPECIFICALLY HELD THAT THE FACT THAT A "MEMBER OF
THE CLASS WHICH IS REGULATED MAY SUFFER ECONOMIC LOSSES NOT SHARED BY
OTHERS  ...  HAS NEVER BEEN A BARRIER" TO SUCH LEGISLATION.  BOWLES V.
WILLINGHAM, SUPRA, AT 518.  LIKEWISE IN A LONG LINE OF CASES THIS COURT
HAS REJECTED THE CLAIM THAT THE PROHIBITION OF RACIAL DISCRIMINATION IN
PUBLIC ACCOMMODATIONS INTERFERES WITH PERSONAL LIBERTY.  SEE DISTRICT
OF COLUMBIA V. JOHN R. THOMPSON CO., 346 U.S. 100 (1953), AND CASES
THERE CITED, WHERE WE CONCLUDED THAT CONGRESS HAD DELEGATED LAW-MAKING
POWER TO THE DISTRICT OF COLUMBIA "AS BROAD AS THE POLICE POWER OF A
STATE" WHICH INCLUDED THE POWER TO ADOPT "A LAW PROHIBITING
DISCRIMINATIONS AGAINST NEGROES BY THE OWNERS AND MANAGERS OF
RESTAURANTS IN THE DISTRICT OF COLUMBIA."  AT 110.  NEITHER DO WE FIND
ANY MERIT IN THE CLAIM THAT THE ACT IS A TAKING OF PROPERTY WITHOUT
JUST COMPENSATION.  THE CASES ARE TO THE CONTRARY.  SEE LEGAL TENDER
CASES, 12 WALL.  457, 551 (1870); OMNIA COMMERCIAL CO. V. UNITED
STATES, 261 U.S. 502 (1923); UNITED STATES V. CENTRAL EUREKA MINING
CO., 357 U.S. 155 (1958). 

WE FIND NO MERIT IN THE REMAINDER OF APPELLANT'S CONTENTIONS,
INCLUDING THAT OF "INVOLUNTARY SERVITUDE."  AS WE HAVE SEEN, 32 STATES
PROHIBIT RACIAL DISCRIMINATION IN PUBLIC ACCOMMODATIONS.  THESE LAWS
BUT CODIFY THE COMMON-LAW INNKEEPER RULE WHICH LONG PREDATED THE
THIRTEENTH AMENDMENT.  IT IS DIFFICULT TO BELIEVE THAT THE AMENDMENT
WAS INTENDED TO ABROGATE THIS PRINCIPLE.  INDEED, THE OPINION OF THE
COURT IN THE CIVIL RIGHTS CASES IS TO THE CONTRARY AS WE HAVE SEEN, IT
HAVING NOTED WITH APPROVAL THE LAWS OF "ALL THE STATES" PROHIBITING
DISCRIMINATION.  WE COULD NOT SAY THAT THE REQUIREMENTS OF THE ACT IN
THIS REGARD ARE IN ANY WAY "AKIN TO AFRICAN SLAVERY."  BUTLER V. PERRY,
240 U.S. 328, 332 (1916). 

WE, THEREFORE, CONCLUDE THAT THE ACTION OF THE CONGRESS IN THE
ADOPTION OF THE ACT AS APPLIED HERE TO A MOTEL WHICH CONCEDEDLY SERVES
INTERSTATE TRAVELERS IS WITHIN THE POWER GRANTED IT BY THE COMMERCE
CLAUSE OF THE CONSTITUTION, AS INTERPRETED BY THIS COURT FOR 140
YEARS.  IT MAY BE ARGUED THAT CONGRESS COULD HAVE PURSUED OTHER METHODS
TO ELIMINATE THE OBSTRUCTIONS IT FOUND IN INTERSTATE COMMERCE CAUSED BY
RACIAL DISCRIMINATION.  BUT THIS IS A MATTER OF POLICY THAT RESTS
ENTIRELY WITH THE CONGRESS NOT WITH THE COURTS.  HOW OBSTRUCTIONS IN
COMMERCE MAY BE REMOVED - WHAT MEANS ARE TO BE EMPLOYED - IS WITHIN THE
SOUND AND EXCLUSIVE DISCRETION OF THE CONGRESS.  IT IS SUBJECT ONLY TO
ONE CAVEAT - THAT THE MEANS CHOSEN BY IT MUST BE REASONABLY ADAPTED TO
THE END PERMITTED BY THE CONSTITUTION.  WE CANNOT SAY THAT ITS CHOICE
HERE WAS NOT SO ADAPTED.  THE CONSTITUTION REQUIRES NO MORE. 
AFFIRMED. 

FN1  SEE APPENDIX. 

FN2  14 STAT. 27. 

FN3  SLAVE KIDNAPING ACT, 14 STAT. 50; PEONAGE ABOLITION ACT OF MARCH
2, 1867, 14 STAT.  546; ACT OF MAY 31, 1870, 16 STAT. 140; ANTI
LYNCHING ACT OF APRIL 20, 1871, 17 STAT. 13. 

FN4  18 STAT. 335. 

FN5  71 STAT. 634. 

FN6  74 STAT. 86. 

FN7  S. 1732 DEALT SOLELY WITH PUBLIC ACCOMMODATIONS.  A SECOND
SENATE BILL, S. 1731, CONTAINED THE ENTIRE ADMINISTRATION PROPOSAL. 
THE SENATE JUDICIARY COMMITTEE CONDUCTED THE HEARINGS ON S. 1731 WHILE
THE COMMITTEE ON COMMERCE CONSIDERED S. 1732. 

FN8  THE FOLLOWING STATUTES INDICATE STATES WHICH HAVE ENACTED PUBLIC
ACCOMMODATION LAWS: 

ALASKA STAT., SECS. 11.60.230 TO 11.60.240 (1962); CAL. CIVIL CODE,
SECS. 51 TO 54 (1954); COLO. REV. STAT. ANN., SECS. 25-1-1 TO 25-2-5
(1953); CONN. GEN. STAT. ANN., SEC. 53-35 (1963 SUPP.); DEL. CODE ANN.
TIT. 6, C. 45 (1963); IDAHO CODE ANN., SECS. 18-7301 TO 18-7303 (1963
SUPP.); ILL. ANN. STAT. (SMITH-HURD ED.), C. 38, SECS. 13-1 TO 13-4
(1964), C. 43, SEC. 133 (1944); IND. ANN. STAT. (BURNS ED.), SECS 10
901 TO 10-914 (1956, AND 1963 SUPP.); IOWA CODE ANN., SECS. 735.1 AND
735.2 (1950); KAN. GEN STAT. ANN., SEC. 21-2424 (1961 SUPP.); ME. REV.
STAT. ANN., C. 137, SEC. 50 (1954); MD. ANN. CODE, ART. 49B, SEC. 11
(1964); MASS. ANN.  LAWS, C. 140, SECS. 5 AND 8 (1957), C. 272, SECS.
92A AND 98 (1963 SUPP.); MICH. STAT. ANN., SECS. 28.343 AND 28.344
(1962); MINN. STAT. ANN., SEC. 327.09 (1947); MONT. REV. CODES ANN.,
SEC. 64-211 (1962); NEB. REV. STAT., SECS. 20-101 AND 20-102 (1962);
N.H. REV. STAT. ANN., SECS. 354:1, 354:2, 354:4 AND 354:5 (1955, AND
1963 SUPP.); N.J. STAT. ANN., SECS. 10:1-2 TO 10:1-7 (1960), SECS.
18:25-1 TO 18:25-6 (1964 SUPP.); N.M. STAT. ANN., SECS. 49-8-1 TO 49-8
7 (1963 SUPP.); N.Y. CIVIL RIGHTS LAW (MCKINNEY ED.), ART. 4, SECS. 40
AND 41 (1948, AND 1964 SUPP.), EXEC. LAW, ART. 15, SECS. 290 TO 301
(1951, AND 1964 SUPP.), PENAL LAW, ART. 46, SECS. 513 TO 515 (1944);
N.D. CENT. CODE, SEC. 12-22-30 (1963 SUPP.); OHIO REV.  CODE ANN.
(PAGE'S ED.), SECS. 2901.35 AND 2901.36 (1954); ORE.  REV.  STAT.,
SECS. 30.670, 30.675 AND 30.680 (1963); PA. STAT. ANN., TIT. 18, SEC.
4654 (1963); R.I. GEN. LAWS ANN., SECS. 11-24-1 TO 11-24-6 (1956); S.
DAK.  SESS.  LAWS, C. 58 (1963); VT. STAT. ANN., TIT. 13, SECS. 1451
AND 1452 (1958); WASH. REV. CODE, SECS. 49.60.010 TO 49.60.170, AND
9.91.010; WIS. STAT. ANN., SEC. 942.04 (1958); WYO. STAT. ANN., SECS. 6
83.1 AND 6-83.2 (1963 SUPP.). 

IN 1963 THE GOVERNOR OF KENTUCKY ISSUED AN EXECUTIVE ORDER REQUIRING
ALL GOVERNMENTAL AGENCIES INVOLVED IN THE SUPERVISION OR LICENSING OF
BUSINESSES TO TAKE ALL LAWFUL ACTION NECESSARY TO PREVENT RACIAL
DISCRIMINATION. 

                         APPENDIX TO OPINION OF THE COURT. 

"TITLE II - INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF
PUBLIC ACCOMMODATION. 

"SEC. 201.  (A)  ALL PERSONS SHALL BE ENTITLED TO THE FULL AND EQUAL
ENJOYMENT OF THE GOODS, SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES,
AND ACCOMMODATIONS OF ANY PLACE OF PUBLIC ACCOMMODATION, AS DEFINED IN
THIS SECTION, WITHOUT DISCRIMINATION OR SEGREGATION ON THE GROUND OF
RACE, COLOR, RELIGION, OR NATIONAL ORIGIN. 

"(B)  EACH OF THE FOLLOWING ESTABLISHMENTS WHICH SERVES THE PUBLIC IS
A PLACE OF PUBLIC ACCOMMODATION WITHIN THE MEANING OF THIS TITLE IF ITS
OPERATIONS AFFECT COMMERCE, OR IF DISCRIMINATION OR SEGREGATION BY IT
IS SUPPORTED BY STATE ACTION: 

"(1)  ANY INN, HOTEL, MOTEL, OR OTHER ESTABLISHMENT WHICH PROVIDES
LODGING TO TRANSIENT GUESTS, OTHER THAN AN ESTABLISHMENT LOCATED WITHIN
A BUILDING WHICH CONTAINS NOT MORE THAN FIVE ROOMS FOR RENT OR HIRE AND
WHICH IS ACTUALLY OCCUPIED BY THE PROPRIETOR OF SUCH ESTABLISHMENT AS
HIS RESIDENCE: 

"(2)  ANY RESTAURANT, CAFETERIA, LUNCHROOM, LUNCH COUNTER, SODA
FOUNTAIN, OR OTHER FACILITY PRINCIPALLY ENGAGED IN SELLING FOOD FOR
CONSUMPTION ON THE PREMISES, INCLUDING, BUT NOT LIMITED TO, ANY SUCH
FACILITY LOCATED ON THE PREMISES OF ANY RETAIL ESTABLISHMENT; OR ANY
GASOLINE STATION: 

"(3)  ANY MOTION PICTURE HOUSE, THEATER, CONCERT HALL, SPORTS ARENA,
STADIUM OR OTHER PLACE OF EXHIBITION OR ENTERTAINMENT; AND: 

"(4)  ANY ESTABLISHMENT (A)(I) WHICH IS PHYSICALLY LOCATED WITHIN THE
PREMISES OF ANY ESTABLISHMENT OTHERWISE COVERED BY THIS SUBSECTION, OR
(II) WITHIN THE PREMISES OF WHICH IS PHYSICALLY LOCATED ANY SUCH
COVERED ESTABLISHMENT, AND (B) WHICH HOLDS ITSELF OUT AS SERVING
PATRONS OF SUCH COVERED ESTABLISHMENT. 

"(C)  THE OPERATIONS OF AN ESTABLISHMENT AFFECT COMMERCE WITHIN THE
MEANING OF THIS TITLE IF (1) IT IS ONE OF THE ESTABLISHMENTS DESCRIBED
IN PARAGRAPH (1) OF SUBSECTION (B); (2) IN THE CASE OF AN ESTABLISHMENT
DESCRIBED IN PARAGRAPH (2) OF SUBSECTION (B), IT SERVES OR OFFERS TO
SERVE INTERSTATE TRAVELERS OR A SUBSTANTIAL PORTION OF THE FOOD WHICH
IT SERVES, OR GASOLINE OR OTHER PRODUCTS WHICH IT SELLS, HAS MOVED IN
COMMERCE; (3) IN THE CASE OF AN ESTABLISHMENT DESCRIBED IN PARAGRAPH
(3) OF SUBSECTION (B), IT CUSTOMARILY PRESENTS FILMS, PERFORMANCES,
ATHLETIC TEAMS, EXHIBITIONS, OR OTHER SOURCES OF ENTERTAINMENT WHICH
MOVE IN COMMERCE; AND (4) IN THE CASE OF AN ESTABLISHMENT DESCRIBED IN
PARAGRAPH (4) OF SUBSECTION (B), IT IS PHYSICALLY LOCATED WITHIN THE
PREMISES OF, OR THERE IS PHYSICALLY LOCATED WITHIN ITS PREMISES, AN
ESTABLISHMENT THE OPERATIONS OF WHICH AFFECT COMMERCE WITHIN THE
MEANING OF THIS SUBSECTION.  FOR PURPOSES OF THIS SECTION, 'COMMERCE'
MEANS TRAVEL, TRADE, TRAFFIC, COMMERCE, TRANSPORTATION, OR
COMMUNICATION AMONG THE SEVERAL STATES, OR BETWEEN THE DISTRICT OF
COLUMBIA AND ANY STATE, OR BETWEEN ANY FOREIGN COUNTRY OR ANY TERRITORY
OR POSSESSION AND ANY STATE OR THE DISTRICT OF COLUMBIA, OR BETWEEN
POINTS IN THE SAME STATE BUT THROUGH ANY OTHER STATE OR THE DISTRICT OF
COLUMBIA OR A FOREIGN COUNTRY. 

"(D)  DISCRIMINATION OR SEGREGATION BY AN ESTABLISHMENT IS SUPPORTED
BY STATE ACTION WITHIN THE MEANING OF THIS TITLE IF SUCH DISCRIMINATION
OR SEGREGATION (1) IS CARRIED ON UNDER COLOR OF ANY LAW, STATUTE,
ORDINANCE, OR REGULATION; OR (2) IS CARRIED ON UNDER COLOR OF ANY
CUSTOM OR USAGE REQUIRED OR ENFORCED BY OFFICIALS OF THE STATE OR
POLITICAL SUBDIVISION THEREOF; OR (3) IS REQUIRED BY ACTION OF THE
STATE OF POLITICAL SUBDIVISION THEREOF. 

"(E)  THE PROVISIONS OF THIS TITLE SHALL NOT APPLY TO A PRIVATE CLUB
OR OTHER ESTABLISHMENT NOT IN FACT OPEN TO THE PUBLIC, EXCEPT TO THE
EXTENT THAT THE FACILITIES OF SUCH ESTABLISHMENT ARE MADE AVAILABLE TO
THE CUSTOMERS OR PATRONS OF AN ESTABLISHMENT WITHIN THE SCOPE OF
SUBSECTION (B). 

"SEC. 202.  ALL PERSONS SHALL BE ENTITLED TO BE FREE, AT ANY
ESTABLISHMENT OR PLACE, FROM DISCRIMINATION OR SEGREGATION OF ANY KIND
ON THE GROUND OF RACE, COLOR, RELIGION, OR NATIONAL ORIGIN, IF SUCH
DISCRIMINATION OR SEGREGATION IS OR PURPORTS TO BE REQUIRED BY ANY LAW,
STATUTE, ORDINANCE, REGULATION, RULE, OR ORDER OF A STATE OR ANY AGENCY
OR POLITICAL SUBDIVISION THEREOF. 

"SEC. 203.  NO PERSON SHALL (A) WITHHOLD, DENY, OR ATTEMPT TO
WITHHOLD OR DENY, OR DEPRIVE OR ATTEMPT TO DEPRIVE, ANY PERSON OF ANY
RIGHT OR PRIVILEGE SECURED BY SECTION 201 OR 202, OR (B) INTIMIDATE,
THREATEN, OR COERCE, OR ATTEMPT TO INTIMIDATE, THREATEN, OR COERCE ANY
PERSON WITH THE PURPOSE OF INTERFERING WITH ANY RIGHT OR PRIVILEGE
SECURED BY SECTION 201 OR 202, OR (C) PUNISH OR ATTEMPT TO PUNISH ANY
PERSON FOR EXERCISING OR ATTEMPTING TO EXERCISE ANY RIGHT OR PRIVILEGE
SECURED BY SECTION 201 OR 202.    "SEC. 204.  (A)  WHENEVER ANY PERSON
HAS ENGAGED OR THERE ARE REASONABLE GROUNDS TO BELIEVE THAT ANY PERSON
IS ABOUT TO ENGAGE IN ANY ACT OR PRACTICE PROHIBITED BY SECTION 203, A
CIVIL ACTION FOR PREVENTIVE RELIEF, INCLUDING AN APPLICATION FOR A
PERMANENT OR TEMPORARY INJUNCTION, RESTRAINING ORDER, OR OTHER ORDER,
MAY BE INSTITUTED BY THE PERSON AGGRIEVED AND, UPON TIMELY APPLICATION,
THE COURT MAY, IN ITS DISCRETION, PERMIT THE ATTORNEY GENERAL TO
INTERVENE IN SUCH CIVIL ACTION IF HE CERTIFIES THAT THE CASE IS OF
GENERAL PUBLIC IMPORTANCE.  UPON APPLICATION BY THE COMPLAINANT AND IN
SUCH CIRCIMSTANCES AS THE COURT MAY DEEM JUST, THE COURT MAY APPOINT AN
ATTORNEY FOR SUCH COMPLAINANT AND MAY AUTHORIZE THE COMMENCEMENT OF THE
CIVIL ACTION WITHOUT THE PAYMENT OF FEES, COSTS, OR SECURITY. 

"(B)  IN ANY ACTION COMMENCED PURSUANT TO THIS TITLE, THE COURT, IN
ITS DISCRETION, MAY ALLOW THE PREVAILING PARTY, OTHER THAN THE UNITED
STATES, A REASONABLE ATTORNEY'S FEE AS PART OF THE COSTS, AND THE
UNITED STATES SHALL BE LIABLE FOR COSTS THE SAME AS A PRIVATE PERSON. 

"(C)  IN THE CASE OF AN ALLEGED ACT OR PRACTICE PROHIBITED BY THIS
TITLE WHICH OCCURS IN A STATE, OR POLITICAL SUBDIVISION OF A STATE,
WHICH HAS A STATE OR LOCAL LAW PROHIBITING SUCH ACT OR PRACTICE AND
ESTABLISHING OR AUTHORIZING A STATE OR LOCAL AUTHORITY TO GRANT OR SEEK
RELIEF FROM SUCH PRACTICE OR TO INSTITUTE CRIMINAL PROCEEDINGS WITH
RESPECT THERETO UPON RECEIVING NOTICE THEREOF, NO CIVIL ACTION MAY BE
BROUGHT UNDER SUBSECTION (A) BEFORE THE EXPIRATION OF THIRTY DAYS AFTER
WRITTEN NOTICE OF SUCH ALLEGED ACT OR PRACTICE HAS BEEN GIVEN TO THE
APPROPRIATE STATE OR LOCAL AUTHORITY BY REGISTERED MAIL OR IN PERSON,
PROVIDED THAT THE COURT MAY STAY PROCEEDINGS IN SUCH CIVIL ACTION
PENDING THE TERMINATION OF STATE OR LOCAL ENFORCEMENT PROCEEDINGS. 

"(D)  IN THE CASE OF AN ALLEGED ACT OR PRACTICE PROHIBITED BY THIS
TITLE WHICH OCCURS IN A STATE, OR POLITICAL SUBDIVISION OF A STATE,
WHICH HAS NO STATE OR LOCAL LAW PROHIBITING SUCH ACT OR PRACTICE, A
CIVIL ACTION MAY BE BROUGHT UNDER SUBSECTION (A):  PROVIDED, THAT THE
COURT MAY REFER THE MATTER TO THE COMMUNITY RELATIONS SERVICE
ESTABLISHED BY TITLE X OF THIS ACT FOR AS LONG AS THE COURT BELIEVES
THERE IS A REASONABLE POSSIBILITY OF OBTAINING VOLUNTARY COMPLIANCE,
BUT FOR NOT MORE THAN SIXTY DAYS:  PROVIDED FURTHER, THAT UPON
EXPIRATION OF SUCH SIXTY-DAY PERIOD, THE COURT MAY EXTEND SUCH PERIOD
FOR AN ADDITIONAL PERIOD, NOT TO EXCEED A CUMULATIVE TOTAL OF ONE
HUNDRED AND TWENTY DAYS, IF IT BELIEVES THERE THEN EXISTS A REASONABLE
POSSIBILITY OF SECURING VOLUNTARY COMPLIANCE. 

"SEC. 205.  THE SERVICE IS AUTHORIZED TO MAKE A FULL INVESTIGATION OF
ANY COMPLAINT REFERRED TO IT BY THE COURT UNDER SECTION 204(D) AND MAY
HOLD SUCH HEARINGS WITH RESPECT THERETO AS MAY BE NECESSARY.  THE
SERVICE SHALL CONDUCT ANY HEARINGS WITH RESPECT TO ANY SUCH COMPLAINT
IN EXECUTIVE SESSION, AND SHALL NOT RELEASE ANY TESTIMONY GIVEN THEREIN
EXCEPT BY AGREEMENT OF ALL PARTIES INVOLVED IN THE COMPLAINT WITH THE
PERMISSION OF THE COURT, AND THE SERVICE SHALL ENDEAVOR TO BRING ABOUT
A VOLUNTARY SETTLEMENT BETWEEN THE PARTIES. 

"SEC. 206.  (A)  WHENEVER THE ATTORNEY GENERAL HAS REASONABLE CAUSE
TO BELIEVE THAT ANY PERSON OR GROUP OF PERSONS IS ENGAGED IN A PATTERN
OR PRACTICE OF RESISTANCE TO THE FULL ENJOYMENT OF ANY OF THE RIGHTS
SECURED BY THIS TITLE, AND THAT THE PATTERN OR PRACTICE IS OF SUCH A
NATURE AND IS INTENDED TO DENY THE FULL EXERCISE OF THE RIGHTS HEREIN
DESCRIBED, THE ATTORNEY GENERAL MAY BRING A CIVIL ACTION IN THE
APPROPRIATE DISTRICT COURT OF THE UNITED STATES BY FILING WITH IT A
COMPLAINT (1) SIGNED BY HIM (OR IN HIS ABSENCE THE ACTING ATTORNEY
GENERAL), (2) SETTING FORTH FACTS PERTAINING TO SUCH PATTERN OR
PRACTICE, AND (3) REQUESTING SUCH PREVENTIVE RELIEF, INCLUDING AN
APPLICATION FOR A PERMANENT OR TEMPORARY INJUNCTION, RESTRAINING ORDER
OR OTHER ORDER AGAINST THE PERSON OR PERSONS RESPONSIBLE FOR SUCH
PATTERN OR PRACTICE, AS HE DEEMS NECESSARY TO INSURE THE FULL ENJOYMENT
OF THE RIGHTS HEREIN DESCRIBED. 

"(B)  IN ANY SUCH PROCEEDING THE ATTORNEY GENERAL MAY FILE WITH THE
CLERK OF SUCH COURT A REQUEST THAT A COURT OF THREE JUDGES BE CONVENED
TO HEAR AND DETERMINE THE CASE.  SUCH REQUEST BY THE ATTORNEY GENERAL
SHALL BE ACCOMPANIED BY A CERTIFICATE THAT, IN HIS OPINION, THE CASE IS
OF GENERAL PUBLIC IMPORTANCE.  A COPY OF THE CERTIFICATE AND REQUEST
FOR A THREE-JUDGE COURT SHALL BE IMMEDIATELY FURNISHED BY SUCH CLERK TO
THE CHIEF JUDGE OF THE CIRCUIT (OR IN HIS ABSENCE, THE PRESIDING
CIRCUIT JUDGE OF THE CIRCUIT) IN WHICH THE CASE IS PENDING.  UPON
RECEIPT OF THE COPY OF SUCH REQUEST IT SHALL BE THE DUTY OF THE CHIEF
JUDGE OF THE CIRCUIT OR THE PRESIDING CIRCUIT JUDGE, AS THE CASE MAY
BE, TO DESIGNATE IMMEDIATELY THREE JUDGES IN SUCH CIRCUIT, OF WHOM AT
LEAST ONE SHALL BE A CIRCUIT JUDGE AND ANOTHER OF WHOM SHALL BE A
DISTRICT JUDGE OF THE COURT IN WHICH THE PROCEEDING WAS INSTITUTED, TO
HEAR AND DETERMINE SUCH CASE, AND IT SHALL BE THE DUTY OF THE JUDGES SO
DESIGNATED TO ASSIGN THE CASE FOR HEARING AT THE EARLIEST PRACTICABLE
DATE, TO PARTICIPATE IN THE HEARING AND DETERMINATION THEREOF, AND TO
CAUSE THE CASE TO BE IN EVERY WAY EXPEDITED.  AN APPEAL FROM THE FINAL
JUDGMENT OF SUCH COURT WILL LIE TO THE SUPREME COURT. 

"IN THE EVENT THE ATTORNEY GENERAL FAILS TO FILE SUCH A REQUEST IN
ANY SUCH PROCEEDING, IT SHALL BE THE DUTY OF THE CHIEF JUDGE OF THE
DISTRICT (OR IN HIS ABSENCE, THE ACTING CHIEF JUDGE) IN WHICH THE CASE
IS PENDING IMMEDIATELY TO DESIGNATE A JUDGE IN SUCH DISTRICT TO HEAR
AND DETERMINE THE CASE.  IN THE EVENT THAT NO JUDGE IN THE DISTRICT IS
AVAILABLE TO HEAR AND DETERMINE THE CASE, THE CHIEF JUDGE OF THE
DISTRICT, OR THE ACTING CHIEF JUDGE, AS THE CASE MAY BE, SHALL CERTIFY
THIS FACT TO THE CHIEF JUDGE OF THE CIRCUIT (OR IN HIS ABSENCE, THE
ACTING CHIEF JUDGE) WHO SHALL THEN DESIGNATE A DISTRICT OR CIRCUIT
JUDGE OF THE CIRCUIT TO HEAR AND DETERMINE THE CASE. 

"IT SHALL BE THE DUTY OF THE JUDGE DESIGNATED PURSUANT TO THIS
AND TO CAUSE THE CASE TO BE IN EVERY WAY EXPEDITED. 

"SEC. 207.  (A)  THE DISTRICT COURTS OF THE UNITED STATES SHALL HAVE
JURISDICTION OF PROCEEDINGS INSTITUTED PURSUANT TO THIS TITLE AND SHALL
EXERCISE THE SAME WITHOUT REGARD TO WHETHER THE AGGRIEVED PARTY SHALL
HAVE EXHAUSTED ANY ADMINISTRATIVE OR OTHER REMEDIES THAT MAY BE
PROVIDED BY LAW. 

"(B)  THE REMEDIES PROVIDED IN THIS TITLE SHALL BE THE EXCLUSIVE
MEANS OF ENFORCING THE RIGHTS BASED ON THIS TITLE, BUT NOTHING IN THIS
TITLE SHALL PRECLUDE ANY INDIVIDUAL OR ANY STATE OR LOCAL AGENCY FROM
ASSERTING ANY RIGHT BASED ON ANY OTHER FEDERAL OR STATE LAW NOT
INCONSISTENT WITH THIS TITLE, INCLUDING ANY STATUTE OR ORDINANCE
REQUIRING NONDISCRIMINATION IN PUBLIC ESTABLISHMENTS OR ACCOMMODATIONS,
OR FROM PURSUING ANY REMEDY, CIVIL OR CRIMINAL, WHICH MAY BE AVAILABLE
FOR THE VINDICATION OR ENFORCEMENT OF SUCH RIGHT." 

MR. JUSTICE BLACK, CONCURRING.* 

*(THIS OPINION APPLIES ALSO TO NO. 543, KATZENBACH V. MCCLUNG, POST,
P. 294.) 

IN THE FIRST OF THESE TWO CASES THE HEART OF ATLANTA MOTEL, A LARGE
MOTEL IN DOWNTOWN ATLANTA, GEORGIA, APPEALS FROM AN ORDER OF A THREE
JUDGE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ENJOINING IT FROM CONTINUING TO VIOLATE TITLE II OF THE CIVIL RIGHTS
ACT OF 1964 (FN1) BY REFUSING TO ACCEPT NEGROES AS LODGERS SOLELY
BECAUSE OF THEIR RACE.  IN THE SECOND CASE THE ACTING ATTORNEY GENERAL
OF THE UNITED STATES AND A UNITED STATES ATTORNEY APPEAL FROM A
JUDGMENT OF A THREE-JUDGE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA HOLDING THAT TITLE II CANNOT CONSTITUTIONALLY BE
APPLIED TO OLLIE'S BARBECUE, A RESTAURANT IN BIRMINGHAM, ALABAMA, WHICH
SERVES FEW IF ANY INTERSTATE TRAVELERS BUT WHICH BUYS A SUBSTANTIAL
QUANTITY OF FOOD WHICH HAS MOVED IN INTERSTATE COMMERCE.  IT IS
UNDISPUTED THAT BOTH ESTABLISHMENTS HAD AND INTENDED TO CONTINUE A
POLICY AGAINST SERVING NEGROES.  BOTH CLAIMED THAT CONGRESS HAD
EXCEEDED ITS CONSTITUTIONAL POWERS IN ATTEMPTING TO COMPEL THEM TO USE
THEIR PRIVATELY OWNED BUSINESSES TO SERVE CUSTOMERS WHOM THEY DID NOT
WANT TO SERVE. 

THE MOST IMMEDIATELY RELEVANT PARTS OF TITLE II OF THE ACT, WHICH, IF
VALID, SUBJECT THIS MOTEL AND THIS RESTAURANT TO ITS REQUIREMENTS ARE
SET OUT BELOW.  (FN2)  THE LANGUAGE OF THAT TITLE SHOWS THAT CONGRESS
IN PASSING IT INTENDED TO EXERCISE - AT LEAST IN PART - POWER GRANTED
IN THE CONSTITUTION BY ART. I, SEC. 8, "TO REGULATE COMMERCE  ...
AMONG THE SEVERAL STATES  ...  ."  THUS SEC. 201(B) OF TITLE II BY ITS
TERMS IS LIMITED IN APPLICATION TO A MOTEL OR RESTAURANT OF WHICH THE
"OPERATIONS AFFECT (INTERSTATE) COMMERCE, OR IF DISCRIMINATION OR
SEGREGATION BY IT IS SUPPORTED BY STATE ACTION."  (FN3)  THE "STATE
ACTION" PROVISION NEED NOT CONCERN US HERE SINCE THERE IS NO CONTENTION
THAT GEORGIA OR ALABAMA HAS AT THIS TIME GIVEN ANY SUPPORT WHATEVER TO
THESE ESTABLISHMENTS' RACIALLY DISCRIMINATORY PRACTICES.  THE BASIC
CONSTITUTIONAL QUESTION DECIDED BY THE COURTS BELOW AND WHICH THIS
COURT MUST NOW DECIDE IS WHETHER CONGRESS EXCEEDED ITS POWERS TO
REGULATE INTERSTATE COMMERCE AND PASS ALL LAWS NECESSARY AND PROPER TO
SUCH REGULATION IN SUBJECTING EITHER THIS MOTEL OR THIS RESTAURANT TO
TITLE II'S COMMANDS THAT APPLICANTS FOR FOOD AND LODGING BE SERVED
WITHOUT REGARD TO THEIR COLOR.  AND IF THE REGULATION IS OTHERWISE
WITHIN THE CONGRESSIONAL COMMERCE POWER, THE MOTEL AND THE RESTAURANT
PROPRIETORS FURTHER CONTEND THAT IT WOULD BE A DENIAL OF DUE PROCESS
UNDER THE FIFTH AMENDMENT TO COMPEL THEM TO SERVE NEGROES AGAINST THEIR
WILL.  (FN4) I AGREE THAT ALL THESE CONSTITUTIONAL CONTENTIONS MUST BE
REJECTED. 

        I 

IT REQUIRES NO NOVEL OR STRAINED INTERPRETATION OF THE COMMERCE
CLAUSE TO SUSTAIN TITLE II AS APPLIED IN EITHER OF THESE CASES.  AT
LEAST SINCE GIBBONS V. OGDEN, 9 WHEAT.  1, DECIDED IN 1824 IN AN
OPINION BY CHIEF JUSTICE JOHN MARSHALL, IT HAS BEEN UNIFORMLY ACCEPTED
THAT THE POWER OF CONGRESS TO REGULATE COMMERCE AMONG THE STATES IS
PLENARY, "COMPLETE IN ITSELF, MAY BE EXERCISED TO ITS UTMOST EXTENT,
AND ACKNOWLEDGES NO LIMITATIONS, OTHER THAN ARE PRESCRIBED IN THE
CONSTITUTION."  9 WHEAT., AT 196.  NOR IS "COMMERCE" AS USED IN THE
COMMERCE CLAUSE TO BE LIMITED TO A NARROW, TECHNICAL CONCEPT.  IT
INCLUDES NOT ONLY, AS CONGRESS HAS ENUMERATED IN THE ACT, "TRAVEL,
TRADE, TRAFFIC, COMMERCE, TRANSPORTATION, OR COMMUNICATION," BUT ALSO
ALL OTHER UNITARY TRANSACTIONS AND ACTIVITIES THAT TAKE PLACE IN MORE
STATES THAN ONE.  THAT SOME PARTS OR SEGMENTS OF SUCH UNITARY
TRANSACTIONS MAY TAKE PLACE ONLY IN ONE STATE CANNOT, OF COURSE, TAKE
FROM CONGRESS ITS PLENARY POWER TO REGULATE THEM IN THE NATIONAL
INTEREST.  (FN5)  THE FACILITIES AND INSTRUMENTALITIES USED TO CARRY ON
THIS COMMERCE, SUCH AS RAILROADS, TRUCK LINES, SHIPS, RIVERS, AND EVEN
HIGHWAYS ARE ALSO SUBJECT TO CONGRESSIONAL REGULATION, SO FAR AS IS
NECESSARY TO KEEP INTERSTATE TRAFFIC UPON FAIR AND EQUAL TERMS.  THE
DANIEL BALL, 10 WALL.  557. 

FURTHERMORE, IT HAS LONG BEEN HELD THAT THE NECESSARY AND PROPER
CLAUSE, ART. I, SEC. 8, CL. 18, ADDS TO THE COMMERCE POWER OF CONGRESS
THE POWER TO REGULATE LOCAL INSTRUMENTALITIES OPERATING WITHIN A SINGLE
STATE IF THEIR ACTIVITIES BURDEN THE FLOW OF COMMERCE AMONG THE
STATES.  THUS IN THE SHREVEPORT CASE, HOUSTON, E.&W.T.R. CO. V. UNITED
STATES, 234 U.S. 342, 353-354, THIS COURT RECOGNIZED THAT CONGRESS
COULD NOT FULLY CARRY OUT ITS RESPONSIBILITY TO PROTECT INTERSTATE
COMMERCE WERE ITS CONSTITUTIONAL POWER TO REGULATE THAT COMMERCE TO BE
STRICTLY LIMITED TO PRESCRIBING THE RULES FOR CONTROLLING THE THINGS
ACTUALLY MOVING IN SUCH COMMERCE OR THE CONTRACTS, TRANSACTIONS, AND
OTHER ACTIVITIES, IMMEDIATELY CONCERNING THEM.  REGULATION OF PURELY
INTRASTATE RAILROAD RATES IS PRIMARILY A LOCAL PROBLEM FOR STATE RATHER
THAN NATIONAL CONTROL.  BUT THE SHREVEPORT CASE SUSTAINED THE POWER OF
CONGRESS UNDER THE COMMERCE CLAUSE AND THE NECESSARY AND PROPER CLAUSE
TO CONTROL PURELY INTRASTATE RATES, EVEN THOUGH REASONABLE, WHERE THE
EFFECT OF SUCH RATES WAS FOUND TO IMPOSE A DISCRIMINATION INJURIOUS TO
INTERSTATE COMMERCE.  THIS HOLDING THAT CONGRESS HAD POWER UNDER THESE
CLAUSES, NOT MERELY TO ENACT LAWS GOVERNING INTERSTATE ACTIVITIES AND
TRANSACTIONS, BUT ALSO TO REGULATE EVEN PURELY LOCAL ACTIVITIES AND
TRANSACTIONS WHERE NECESSARY TO FOSTER AND PROTECT INTERSTATE COMMERCE,
WAS AMPLY SUPPORTED BY MR. JUSTICE (LATER MR. CHIEF JUSTICE) HUGHES'
RELIANCE UPON MANY PRIOR HOLDINGS OF THIS COURT EXTENDING BACK TO
GIBBONS V. OGDEN, SUPRA.  (FN6)  AND SINCE THE SHREVEPORT CASE THIS
COURT HAS STEADFASTLY FOLLOWED, AND INDEED HAS EMPHASIZED TIME AND TIME
AGAIN, THAT CONGRESS HAS AMPLE POWER TO PROTECT INTERSTATE COMMERCE
FROM ACTIVITIES ADVERSELY AND INJURIOUSLY AFFECTING IT, WHICH BUT FOR
THIS ADVERSE EFFECT OF INTERSTATE COMMERCE WOULD BE BEYOND THE POWER OF
CONGRESS TO REGULATE.  (FN7) 

CONGRESS IN SEC. 201 DECLARED THAT THE RACIALLY DISCRIMINATORY
"OPERATIONS" OF A MOTEL OF MORE THAN FIVE ROOMS FOR RENT OR HIRE DO
ADVERSELY AFFECT INTERSTATE COMMERCE IF IT "PROVIDES LODGING TO
TRANSIENT GUESTS  ... " AND THAT A RESTAURANT'S "OPERATIONS" AFFECT
SUCH COMMERCE IF (1) "IT SERVES OR OFFERS TO SERVE INTERSTATE
TRAVELERS" OR (2) "A SUBSTANTIAL PORTION OF THE FOOD WHICH IT SERVES
...  HAS MOVED IN INTERSTATE COMMERCE."  CONGRESS THUS DESCRIBED THE
NATURE AND EXTENT OF OPERATIONS WHICH IT WISHED TO REGULATE, EXCLUDING
SOME ESTABLISHMENTS FROM THE ACT EITHER FOR REASONS OF POLICY OR
BECAUSE IT BELIEVED ITS POWERS TO REGULATE AND PROTECT INTERSTATE
COMMERCE DID NOT EXTEND SO FAR.  THERE CAN BE NO DOUBT THAT THE
OPERATIONS OF BOTH THE MOTEL AND THE RESTAURANT HERE FALL SQUARELY
WITHIN THE MEASURE CONGRESS CHOSE TO ADOPT IN THE ACT AND DEEMED
ADEQUATE TO SHOW A CONSTITUTIONALLY PROHIBITABLE ADVERSE EFFECT ON
COMMERCE.  THE CHOICE OF POLICY IS OF COURSE WITHIN THE EXCLUSIVE POWER
OF CONGRESS; BUT WHETHER PARTICULAR OPERATIONS AFFECT INTERSTATE
COMMERCE SUFFICIENTLY TO COME UNDER THE CONSTITUTIONAL POWER OF
CONGRESS TO REGULATE THEM IS ULTIMATELY A JUDICIAL RATHER THAN A
LEGISLATIVE QUESTION, AND CAN BE SETTLED FINALLY ONLY BY THIS COURT.  I
AGREE THAT AS APPLIED TO THIS MOTEL AND THIS RESTAURANT THE ACT IS A
VALID EXERCISE OF CONGRESSIONAL POWER, IN THE CASE OF THE MOTEL BECAUSE
THE RECORD AMPLY DEMONSTRATES THAT ITS PRACTICE OF DISCRIMINATION
TENDED DIRECTLY TO INTERFERE WITH INTERSTATE TRAVEL, AND IN THE CASE OF
THE RESTAURANT BECAUSE CONGRESS HAD AMPLE BASIS FOR CONCLUDING THAT A
WIDESPREAD PRACTICE OF RACIAL DISCRIMINATION BY RESTAURANTS BUYING AS
SUBSTANTIAL A QUANTITY OF GOODS SHIPPED FROM OTHER STATES AS THIS
RESTAURANT BUYS COULD DISTORT OR IMPEDE INTERSTATE TRADE. 

THE HEART OF ATLANTA MOTEL IS A LARGE 216-ROOM ESTABLISHMENT
STRATEGICALLY LOCATED IN RELATION TO ATLANTA AND INTERSTATE TRAVELERS. 
IT ADVERTISES EXTENSIVELY BY SIGNS ALONG INTERSTATE HIGHWAYS AND IN
VARIOUS ADVERTISING MEDIA.  AS A RESULT OF THESE CIRCUMSTANCES
APPROXIMATELY 75% OF THE MOTEL GUESTS ARE TRANSIENT INTERSTATE
TRAVELERS.  IT IS THUS AN IMPORTANT FACILITY FOR USE BY INTERSTATE
TRAVELERS WHO TRAVEL ON HIGHWAYS, SINCE TRAVELERS IN THEIR OWN CARS
MUST FIND LODGING PLACES TO MAKE THEIR JOURNEYS COMFORTABLY AND
SAFELY. 

THE RESTAURANT IS LOCATED IN A RESIDENTIAL AND INDUSTRIAL SECTION OF
BIRMINGHAM, 11 BLOCKS FROM THE NEAREST INTERSTATE HIGHWAY.  ALMOST ALL,
IF NOT ALL, ITS PATRONS ARE LOCAL PEOPLE RATHER THAN TRANSIENTS.  IT
HAS SEATS FOR ABOUT 200 CUSTOMERS AND ANNUAL GROSS SALES OF ABOUT
$350,000.  MOST OF ITS SALES ARE OF BARBECUED MEAT SANDWICHES AND
PIES.  CONSEQUENTLY, THE MAIN COMMODITY IT PURCHASES IS MEAT, OF WHICH
DURING THE 12 MONTHS BEFORE THE DISTRICT COURT HEARING IT BOUGHT
$69,683 WORTH (REPRESENTING 46% OF ITS TOTAL EXPENDITURES FOR
SUPPLIES), WHICH HAD BEEN SHIPPED INTO ALABAMA FROM OUTSIDE THE STATE. 
PLAINLY, 46% OF THE GOODS IT SELLS IS A "SUBSTANTIAL" PORTION AND
AMOUNT.  CONGRESS CONCLUDED THAT RESTAURANTS WHICH PURCHASE A
SUBSTANTIAL QUANTITY OF GOODS FROM OTHER STATES MIGHT WELL BURDEN AND
DISRUPT THE FLOW OF INTERSTATE COMMERCE IF ALLOWED TO PRACTICE RACIAL
DISCRIMINATION, BECAUSE OF THE STIFLING AND DISTORTING EFFECT THAT SUCH
DISCRIMINATION ON A WIDE SCALE MIGHT WELL HAVE ON THE SALE OF GOODS
SHIPPED ACROSS STATE LINES.  CERTAINLY THIS BELIEF WOULD NOT BE
IRRATIONAL EVEN HAD THERE NOT BEEN A LARGE BODY OF EVIDENCE BEFORE THE
CONGRESS TO SHOW THE PROBABILITY OF THIS ADVERSE EFFECT.  (FN8) 

THE FOREGOING FACTS ARE MORE THAN ENOUGH, IN MY JUDGMENT, TO SHOW
THAT CONGRESS ACTING WITHIN ITS DISCRETION AND JUDGMENT HAS POWER UNDER
THE COMMERCE CLAUSE AND THE NECESSARY AND PROPER CLAUSE TO BAR RACIAL
DISCRIMINATION IN THE HEART OF ATLANTA MOTEL AND OLLIE'S BARBECUE.  I
RECOGNIZE THAT EVERY REMOTE, POSSIBLE, SPECULATIVE EFFECT ON COMMERCE
SHOULD NOT BE ACCEPTED AS AN ADEQUATE CONSTITUTIONAL GROUND TO UPROOT
AND THROW INTO THE DISCARD ALL OUR TRADITIONAL DISTINCTIONS BETWEEN
WHAT IS PURELY LOCAL, AND THEREFORE CONTROLLED BY STATE LAWS, AND WHAT
AFFECTS THE NATIONAL INTEREST AND IS THEREFORE SUBJECT TO CONTROL BY
FEDERAL LAWS.  I RECOGNIZE TOO THAT SOME ISOLATED AND REMOTE LUNCHROOM
WHICH SELLS ONLY TO LOCAL PEOPLE AND BUYS ALMOST ALL ITS SUPPLIES IN
THE LOCALITY MAY POSSIBLY BE BEYOND THE REACH OF THE POWER OF CONGRESS
TO REGULATE COMMERCE, JUST AS SUCH AN ESTABLISHMENT IS NOT COVERED BY
THE PRESENT ACT.  BUT IN DECIDING THE CONSTITUTIONAL POWER OF CONGRESS
IN CASES LIKE THE TWO BEFORE US WE DO NOT CONSIDER THE EFFECT ON
INTERSTATE COMMERCE OF ONLY ONE ISOLATED, INDIVIDUAL, LOCAL EVENT,
WITHOUT REGARD TO THE FACT THAT THIS SINGLE LOCAL EVENT WHEN ADDED TO
MANY OTHERS OF A SIMILAR NATURE MAY IMPOSE A BURDEN ON INTERSTATE
COMMERCE BY REDUCING ITS VOLUME OR DISTORTING ITS FLOW.  LABOR BOARD V.
RELIANCE FUEL OIL CORP., 371 U.S. 224; WICKARD V. FILBURN, 317 U.S.
111, 127-128; UNITED STATES V. DARBY, 312 U.S. 100, 123; LABOR BOARD V.
FAINBLATT, 306 U.S. 601, 608-609; CF. HOTEL EMPLOYEES LOCAL NO. 255 V.
LEEDOM, 358 U.S. 99.  THERE ARE APPROXIMATELY 20,000,000 NEGROES IN OUR
COUNTRY.  (FN9)  MANY OF THEM ARE ABLE TO, AND DO, TRAVEL AMONG THE
STATES IN AUTOMOBILES.  CERTAINLY IT WOULD SERIOUSLY DISCOURAGE SUCH
TRAVEL BY THEM IF, AS EVIDENCE BEFORE THE CONGRESS INDICATED HAS BEEN
TRUE IN THE PAST, (FN10) THEY SHOULD IN THE FUTURE CONTINUE TO BE
UNABLE TO FIND A DECENT PLACE ALONG THEIR WAY IN WHICH TO LODGE OR
EAT.  CF. BOYNTON V. VIRGINIA, 364 U.S. 454.  AND THE FLOW OF
INTERSTATE COMMERCE MAY BE IMPEDED OR DISTORTED SUBSTANTIALLY IF LOCAL
SELLERS OF INTERSTATE FOOD ARE PERMITTED TO EXCLUDE ALL NEGRO
CONSUMERS.  MEASURING, AS THIS COURT HAS SO OFTEN HELD IS REQUIRED, BY
THE AGGREGATE EFFECT OF A GREAT NUMBER OF SUCH ACTS OF DISCRIMINATION,
I AM OF THE OPINION THAT CONGRESS HAS CONSTITUTIONAL POWER UNDER THE
COMMERCE AND NECESSARY AND PROPER CLAUSES TO PROTECT INTERSTATE
COMMERCE FROM THE INJURIES BOUND TO BEFALL IT FROM THESE DISCRIMINATORY
PRACTICES. 

LONG AGO THIS COURT, AGAIN SPEAKING THROUGH MR. CHIEF JUSTICE
MARSHALL, SAID: 

"LET THE END BE LEGITIMATE, LET IT BE WITHIN THE SCOPE OF THE
CONSTITUTION, AND ALL MEANS WHICH ARE APPROPRIATE, WHICH ARE PLAINLY
ADAPTED TO THAT END, WHICH ARE NOT PROHIBITED, BUT CONSIST WITH THE
LETTER AND SPIRIT OF THE CONSTITUTION, ARE CONSTITUTIONAL."  M'CULLOCH
V. MARYLAND, 4 WHEAT.  316, 421. 

BY THIS STANDARD CONGRESS ACTED WITHIN ITS POWER HERE.  IN VIEW OF
THE COMMERCE CLAUSE IT IS NOT POSSIBLE TO DENY THAT THE AIM OF
PROTECTING INTERSTATE COMMERCE FROM UNDUE BURDENS IS A LEGITIMATE END. 
IN VIEW OF THE THIRTEENTH, FOURTEENTH AND FIFTEENTH AMENDMENTS, IT IS
NOT POSSIBLE TO DENY THAT THE AIM OF PROTECTING NEGROES FROM
DISCRIMINATION IS ALSO A LEGITIMATE END.  (FN11)  THE MEANS ADOPTED TO
ACHIEVE THESE ENDS ARE ALSO APPROPRIATE, PLAINLY ADOPTED TO ACHIEVE
THEM AND NOT PROHIBITED BY THE CONSTITUTION BUT CONSISTENT WITH BOTH
ITS LETTER AND SPIRIT. 

                  II 

THE RESTAURANT AND MOTEL PROPRIETORS ARGUE ALSO, HOWEVER, THAT
CONGRESS VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT BY
REQUIRING THAT THEY SERVE NEGROES IF THEY SERVE OTHERS.  THIS ARGUMENT
COMES DOWN TO THIS:  THAT THE BROAD POWER OF CONGRESS TO ENACT LAWS
DEEMED NECESSARY AND PROPER TO REGULATE AND PROTECT INTERSTATE COMMERCE
IS PRACTICALLY NULLIFIED BY THE NEGATIVE CONSTITUTIONAL COMMANDS THAT
NO PERSON SHALL BE DEPRIVED OF "LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE
PROCESS OF LAW" AND THAT PRIVATE PROPERTY SHALL NOT BE "TAKEN" FOR
PUBLIC USE WITHOUT JUST COMPENSATION.  IN THE PAST THIS COURT HAS
CONSISTENTLY HELD THAT REGULATION OF THE USE OF PROPERTY BY THE FEDERAL
GOVERNMENT OR BY THE STATES DOES NOT VIOLATE EITHER THE FIFTH OR THE
FOURTEENTH AMENDMENT.  SEE, E.G., FERGUSON V. SKRUPA, 372 U.S. 726;
DISTRICT OF COLUMBIA V. JOHN R. THOMPSON CO., 346 U.S. 100; VILLAGE OF
EUCLID V. AMBLER REALTY CO., 272 U.S. 365; NEBBIA V. NEW YORK, 291 U.S.
502.  A REGULATION SUCH AS THAT FOUND IN TITLE II DOES NOT EVEN COME
CLOSE TO BEING A "TAKING" IN THE CONSTITUTIONAL SENSE.  CF. UNITED
STATES V. CENTRAL EUREKA MINING CO., 357 U.S. 155.  AND A MORE OR LESS
VAGUE CLAUSE LIKE THE REQUIREMENT FOR DUE PROCESS, ORIGINALLY MEANING
"ACCORDING TO THE LAW OF THE LAND" WOULD BE A HIGHLY INAPPROPRIATE
PROVISION ON WHICH TO RELY TO INVALIDATE A "LAW OF THE LAND" ENACTED BY
CONGRESS UNDER A CLEARLY GRANTED POWER LIKE THAT TO REGULATE INTERSTATE
COMMERCE.  MOREOVER, IT WOULD BE HIGHLY IRONICAL TO USE THE GUARANTEE
OF DUE PROCESS - A GUARANTEE WHICH PLAYS SO IMPORTANT A PART IN THE
FOURTEENTH AMENDMENT, AN AMENDMENT ADOPTED WITH THE PREDOMINANT AIM OF
PROTECTING NEGROES FROM DISCRIMINATION - IN ORDER TO STRIP CONGRESS OF
POWER TO PROTECT NEGROES FROM DISCRIMINATION.  (FN12)

                                III 

FOR THE FOREGOING REASONS I CONCUR IN HOLDING THAT THE ANTI-RACIAL
DISCRIMINATION PROVISIONS OF TITLE II OF THE CIVIL RIGHTS ACT OF 1964
ARE VALID AS APPLIED TO THIS MOTEL AND THIS RESTAURANT.  I SHOULD ADD
THAT NOTHING IN THE CIVIL RIGHTS CASES, 109 U.S. 3, WHICH INVALIDATED
THE CIVIL RIGHTS ACT OF 1875, (FN13) GIVES THE SLIGHTEST SUPPORT TO THE
ARGUMENT THAT CONGRESS IS WITHOUT POWER UNDER THE COMMERCE CLAUSE TO
ENACT THE PRESENT LEGISLATION, SINCE IN THE CIVIL RIGHTS CASES THIS
COURT EXPRESSLY LEFT UNDECIDED THE VALIDITY OF SUCH ANTIDISCRIMINATION
LEGISLATION IF RESTED ON THE COMMERCE CLAUSE.  SEE 109 U.S., AT 18-19;
SEE ALSO BUTTS V. MERCHANTS & MINERS TRANSP.  CO., 230 U.S. 126, 132. 
NOR DOES ANY VIEW EXPRESSED IN MY DISSENTING OPINION IN BELL V.
MARYLAND, 378 U.S. 226, 318, IN WHICH MR. JUSTICE HARLAN AND MR.
JUSTICE WHITE JOINED, AFFECT THIS CONCLUSION IN THE SLIGHTEST, FOR THAT
OPINION STATED ONLY THAT THE FOURTEENTH AMENDMENT IN AND OF ITSELF,
WITHOUT IMPLEMENTATION BY A LAW PASSED BY CONGRESS, DOES NOT BAR RACIAL
DISCRIMINATION IN PRIVATELY OWNED PLACES OF BUSINESS IN THE ABSENCE OF
STATE ACTION.  THE OPINION DID NOT DISCUSS THE POWER OF CONGRESS UNDER
THE COMMERCE AND NECESSARY AND PROPER CLAUSES OR UNDER SECTION 5 OF THE
FOURTEENTH AMENDMENT TO PASS A LAW FORBIDDING SUCH DISCRIMINATION.  SEE
378 U.S., AT 318, 326, 342-343 AND N. 44.  BECAUSE THE CIVIL RIGHTS ACT
OF 1964 AS APPLIED HERE IS WHOLLY VALID UNDER THE COMMERCE CLAUSE AND
THE NECESSARY AND PROPER CLAUSE, THERE IS NO NEED TO CONSIDER WHETHER
THIS ACT IS ALSO CONSTITUTIONALLY SUPPORTABLE UNDER SECTION 5 OF THE
FOURTEENTH AMENDMENT WHICH GRANTS CONGRESS "POWER TO ENFORCE, BY
APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS ARTICLE." 

FN1  78 STAT. 243-246, 42 U.S.C. SECS. 2000A - 2000A-6 (1964 ED.). 

FN2  SECTION 201 OT THE ACT, 78 STAT. 243, 42 U.S.C. SEC. 2000A (1964
ED.), PROVIDES IN PART: 

"(A)  ALL PERSONS SHALL BE ENTITLED TO THE FULL AND EQUAL ENJOYMENT
OF THE GOODS, SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES, AND
ACCOMMODATIONS OF ANY PLACE OF PUBLIC ACCOMMODATION, AS DEFINED IN THIS
COLOR, RELIGION, OR NATIONAL ORIGIN. 

"(B)  EACH OF THE FOLLOWING ESTABLISHMENTS WHICH SERVES THE PUBLIC IS
A PLACE OF PUBLIC ACCOMMODATION WITHIN THE MEANING OF THIS TITLE IF ITS
OPERATIONS AFFECT COMMERCE, OR IF DISCRIMINATION OR SEGREGATION BY IT
IS SUPPORTED BY STATE ACTION: 

"(1)  ANY INN, HOTEL, MOTEL, OR OTHER ESTABLISHMENT WHICH PROVIDES
LODGING TO TRANSIENT GUESTS, OTHER THAN AN ESTABLISHMENT LOCATED WITHIN
A BUILDING WHICH CONTAINS NOT MORE THAN FIVE ROOMS FOR RENT OR HIRE AND
WHICH IS ACTUALLY OCCUPIED BY THE PROPRIETOR OF SUCH ESTABLISHMENT AS
HIS RESIDENCE: 

"(2)  ANY RESTAURANT, CAFETERIA, LUNCHROOM, LUNCH COUNTER, SODA
FOUNTAIN, OR OTHER FACILITY PRINCIPALLY ENGAGED IN SELLING FOOD FOR
CONSUMPTION ON THE PREMISES, INCLUDING, BUT NOT LIMITED TO, ANY SUCH
FACILITY LOCATED ON THE PREMISES OF ANY RETAIL ESTABLISHMENT; OR ANY
GASOLINE STATION. 

     *         *         *         *         * 

"(C)  THE OPERATIONS OF AN ESTABLISHMENT AFFECT COMMERCE WITHIN THE
MEANING OF THIS TITLE IF (1) IT IS ONE OF THE ESTABLISHMENTS DESCRIBED
IN PARAGRAPH (1) OF SUBSECTION (B); (2) IN THE CASE OF AN ESTABLISHMENT
DESCRIBED IN PARAGRAPH (2) OF SUBSECTION (B), IT SERVES OR OFFERS TO
SERVE INTERSTATE TRAVELERS OR A SUBSTANTIAL PORTION OF THE FOOD WHICH
IT SERVES, OR GASOLINE OR OTHER PRODUCTS WHICH IT SELLS, HAS MOVED IN
COMMERCE  ...  .  FOR PURPOSES OF THIS SECTION, 'COMMERCE' MEANS
TRAVEL, TRADE, TRAFFIC, COMMERCE, TRANSPORTATION, OR COMMUNICATION
AMONG THE SEVERAL STATES  ...  ." 

FN3  THIS LAST DEFINITIONAL CLAUSE OF SEC. 201(B) TOGETHER WITH SEC.
202 SHOWS A CONGRESSIONAL PURPOSE ALSO TO RELY IN PART ON SEC. 1 OF THE
FOURTEENTH AMENDMENT, WHICH FORBIDS ANY STATE TO DENY DUE PROCESS OR
EQUAL PROTECTION OF THE LAWS.  THERE IS NO CONTENTION IN THESE CASES
THAT CONGRESS RELIED ON THE FIFTH SECTION OF THE FOURTEENTH AMENDMENT
GRANTING IT "POWER TO ENFORCE, BY APPROPRIATE LEGISLATION, THE
PROVISIONS OF" THE AMENDMENT. 

FN4  THE MOTEL ALSO ARGUES THAT THE LAW VIOLATES THE THIRTEENTH
AMENDMENT'S PROHIBITION OF SLAVERY OR INVOLUNTARY SERVITUDE AND TAKES
PRIVATE PROPERTY FOR PUBLIC USE WITHOUT JUST COMPENSATION, IN VIOLATION
OF THE FIFTH AMENDMENT. 

FN5  COMPARE UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 332
U.S. 533, 546-547; BOARD OF TRADE V. OLSEN, 262 U.S. 1, 33-36; SWIFT &
CO. V. UNITED STATES, 196 U.S. 375, 398-399. 

FN6  "THE GENIUS AND CHARACTER OF THE WHOLE GOVERNMENT SEEM TO BE,
THAT ITS ACTION IS TO BE APPLIED TO ALL THE EXTERNAL CONCERNS OF THE
NATION, AND TO THOSE INTERNAL CONCERNS WHICH AFFECT THE STATES
GENERALLY; BUT NOT TO THOSE WHICH ARE COMPLETELY WITHIN A PARTICULAR
STATE, WHICH DO NOT AFFECT OTHER STATES, AND WITH WHICH IT IS NOT
NECESSARY TO INTERFERE, FOR THE PURPOSE OF EXECUTING SOME OF THE
GENERAL POWERS OF THE GOVERNMENT."  GIBBONS V. OGDEN, SUPRA, 9 WHEAT.,
AT 195. 

FN7  SEE, E.G., LABOR BOARD V. RELIANCE FUEL OIL CORP., 371 U.S. 224;
LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S. 143; UNITED STATES V.
WOMEN'S SPORTSWEAR MANUFACTURERS ASSN., 336 U.S. 460; UNITED STATES V.
SULLIVAN, 332 U.S. 689; WICKARD V. FILBURN, 317 U.S. 111; UNITED STATES
V. WRIGHTWOOD DAIRY CO., 315 U.S. 110; UNITED STATES V. DARBY, 312 U.S.
100; LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1; KENTUCHY
WHIP & COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299 U.S. 334.  SEE ALSO
SOUTHERN R. CO. V. UNITED STATES, 222 U.S. 20.    FN8  SEE, E.G.,
HEARINGS BEFORE THE SENATE COMMITTEE ON COMMERCE ON S. 1732, 88TH
CONG., 1ST SESS., PART 1, SER.  26, PP. 18-19 (ATTORNEY GENERAL
KENNEDY), 623-630 (SECRETARY OF LABOR WIRTZ); PART 2, SER.  26, PP. 695
700 (UNDER SECRETARY OF COMMERCE ROOSEVELT). 

FN9  BUREAU OF THE CENSUS, 1964 STATISTICAL ABSTRACT OF THE UNITED
STATES, 25 (18,872,000 NEGROES BY 1960 CENSUS). 

FN10  SEE, E.G., S. REP. NO. 872, 88TH CONG., 2D SESS., 15-18. 
FN11  WE HAVE SPECIFICALLY UPHELD THE POWER OF CONGRESS TO USE THE
COMMERCE POWER TO END RACIAL DISCRIMINATION.  BOYNTON V. VIRGINIA, 364
U.S. 454; HENDERSON V. UNITED STATES, 339 U.S. 816; MITCHELL V. UNITED
STATES, 313 U.S. 80; CF. BAILEY V. PATTERSON, 369 U.S. 31; MORGAN V.
VIRGINIA, 328 U.S. 373.  COMPARE CASES IN WHICH THE COMMERCE POWER HAS
BEEN USED TO ADVANCE OTHER ENDS NOT ENTIRELY COMMERCIAL:  E.G., UNITED
STATES V. DARBY, 312 U.S. 100 (FAIR LABOR STANDARDS ACT); UNITED STATES
V. MILLER, 307 U.S. 174 (NATIONAL FIREARMS ACT); GOOCH V. UNITED
STATES, 297 U.S. 124 (FEDERAL KIDNAPING ACT); BROODS V. UNITED STATES,
267 U.S. 432 (NATIONAL MOTOR VEHICLE THEFT ACT); UNITED STATES V.
SIMPSON, 252 U.S. 465 (ACT FORBIDDING SHIPMENT OF LIQUOR INTO A "DRY"
STATE); CAMINETTI V. UNITED STATES, 242 U.S. 470 (WHITE-SLAVE TRAFFIC
(MANN) ACT); HOKE V. UNITED STATES, 227 U.S. 308 (WHITE-SLAVE TRAFFIC
(MANN) ACT); HIPOLITE EGG CO. V UNITED STATES, 220 U.S. 45 (PURE FOOD
AND DRUGS ACT); LOTTERY CASE, 188 U.S. 321 (ACT FORBIDDING INTERSTATE
SHIPMENT OF LOTTERY TICKETS). 

FN12  THE MOTEL'S ARGUMENT THAT TITLE II VIOLATES THE THIRTEENTH
AMENDMENT IS SO INSUBSTANTIAL THAT IT REQUIRES NO FURTHER DISCUSSION. 

FN13  18 STAT. 335. 

MR. JUSTICE DOUGLAS, CONCURRING.* 

*(THIS OPINION APPLIES ALSO TO NO. 543, KATZENBACH V. MCCLUNG, POST,
P. 294.) 

                           I 

THOUGH I JOIN THE COURT'S OPINIONS, I AM SOMEWHAT RELUCTANT HERE, AS
I WAS IN EDWARDS V. CALIFORNIA, 314 U.S. 160, 177, TO REST SOLELY ON
THE COMMERCE CLAUSE.  MY RELUCTANCE IS NOT DUE TO ANY CONVICTION THAT
CONGRESS LACKS POWER TO REGULATE COMMERCE IN THE INTERESTS OF HUMAN
RIGHTS.  IT IS RATHER MY BELIEF THAT THE RIGHT OF PEOPLE TO BE FREE OF
STATE ACTION THAT DISCRIMINATES AGAINST THEM BECAUSE OF RACE, LIKE THE
"RIGHT OF PERSONS TO MOVE FREELY FROM STATE TO STATE" (EDWARDS V.
CALIFORNIA, SUPRA, AT 177), "OCCUPIES A MORE PROTECTED POSITION IN OUR
CONSTITUTIONAL SYSTEM THAN DOES THE MOVEMENT OF CATTLE, FRUIT, STEEL
AND COAL ACROSS STATE LINES."  IBID.  MOREOVER, WHEN WE COME TO THE
PROBLEM OF ABATEMENT IN HAMM V. CITY OF ROCK HILL, POST, P. 306,
DECIDED THIS DAY, THE RESULT REACHED BY THE COURT IS FOR ME MUCH MORE
OBVIOUS AS A PROTECTIVE MEASURE UNDER THE FOURTEENTH AMENDMENT THAN
UNDER THE COMMERCE CLAUSE.  FOR THE FORMER DEALS WITH THE
CONSTITUTIONAL STATUS OF THE INDIVIDUAL NOT WITH THE IMPACT ON COMMERCE
OF LOCAL ACTIVITIES OR VICE VERSA. 

HENCE I WOULD PREFER TO REST ON THE ASSERTION OF LEGISLATIVE POWER
CONTAINED IN SEC. 5 OF THE FOURTEENTH AMENDMENT WHICH STATES:  "THE
CONGRESS SHALL HAVE POWER TO ENFORCE, BY APPROPRIATE LEGISLATION, THE
PROVISIONS OF THIS ARTICLE" - A POWER WHICH THE COURT CONCEDES WAS
EXERCISED AT LEAST IN PART IN THIS ACT. 

A DECISION BASED ON THE FOURTEENTH AMENDMENT WOULD HAVE A MORE
SETTLING EFFECT, MAKING UNNECESSARY LITIGATION OVER WHETHER A
PARTICULAR RESTAURANT OR INN IS WITHIN THE COMMERCE DEFINITIONS OF THE
ACT OR WHETHER A PARTICULAR CUSTOMER IS AN INTERSTATE TRAVELER.  UNDER
MY CONSTRUCTION, THE ACT WOULD APPLY TO ALL CUSTOMERS IN ALL THE
ENUMERATED PLACES OF PUBLIC ACCOMMODATION.  AND THAT CONSTRUCTION WOULD
PUT AN END TO ALL OBSTRUCTIONIST STRATEGIES AND FINALLY CLOSE ONE DOOR
ON A BITTER CHAPTER IN AMERICAN HISTORY. 

MY OPINION LAST TERM IN BELL V. MARYLAND, 378 U.S. 226, 242, MAKES
CLEAR MY POSITION THAT THE RIGHT TO BE FREE OF DISCRIMINATORY TREATMENT
(BASED ON RACE) IN PLACES OF PUBLIC ACCOMMODATION - WHETHER INTRASTATE
OR INTERSTATE - IS A RIGHT GUARANTEED AGAINST STATE ACTION BY THE
FOURTEENTH AMENDMENT AND THAT STATE ENFORCEMENT OF THE KIND OF TRESPASS
LAWS WHICH MARYLAND HAD IN THAT CASE WAS STATE ACTION WITHIN THE
MEANING OF THE AMENDMENT. 

                        II 

I THINK THE COURT IS CORRECT IN CONCLUDING THAT THE ACT IS NOT
FOUNDED ON THE COMMERCE CLAUSE TO THE EXCLUSION OF THE ENFORCEMENT
CLAUSE OF THE FOURTEENTH AMENDMENT. 

IN DETERMINING THE REACH OF AN EXERTION OF LEGISLATIVE POWER, IT IS
CUSTOMARY TO READ VARIOUS GRANTED POWERS TOGETHER.  SEE VEAZIE BANK V.
FENNO, 8 WALL.  533, 548-549; EDYE V. ROBERTSON, 112 U.S. 580, 595-596;
UNITED STATES V. GETTYSBURG ELECTRIC R. CO., 160 U.S. 668, 683.  AS
STATED IN MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 421: 

"WE ADMIT, AS ALL MUST ADMIT, THAT THE POWERS OF THE GOVERNMENT ARE
LIMITED, AND THAT ITS LIMITS ARE NOT TO BE TRANSCENDED.  BUT WE THINK
THE SOUND CONSTRUCTION OF THE CONSTITUTION MUST ALLOW TO THE NATIONAL
LEGISLATURE THAT DISCRETION, WITH RESPECT TO THE MEANS BY WHICH THE
POWERS IT CONFERS ARE TO BE CARRIED INTO EXECUTION, WHICH WILL ENABLE
THAT BODY TO PERFORM THE HIGH DUTIES ASSIGNED TO IT, IN THE MANNER MOST
BENEFICIAL TO THE PEOPLE.  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." 

THE "MEANS" USED IN THE PRESENT ACT ARE IN MY VIEW "APPROPRIATE" AND
"PLAINLY ADAPTED" TO THE END OF ENFORCING FOURTEENTH AMENDMENT RIGHTS
(FN1) AS WELL AS PROTECTING INTERSTATE COMMERCE. 

EQUAL ACCESS: 

"ALL PERSONS SHALL BE ENTITLED TO THE FULL AND EQUAL ENJOYMENT OF THE
GOODS, SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES, AND ACCOMMODATIONS
OF ANY PLACE OF PUBLIC ACCOMMODATION, AS DEFINED IN THIS SECTION,
WITHOUT DISCRIMINATION OR SEGREGATION ON THE GROUND OF RACE, COLOR,
RELIGION, OR NATIONAL ORIGIN." 

THE RIGHTS PROTECTED ARE CLEARLY WITHIN THE PURVIEW OF OUR DECISIONS
UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  (FN2) 

"STATE ACTION" - THE KEY TO FOURTEENTH AMENDMENT GUARANTEES - IS
DEFINED BY SEC. 201(D) AS FOLLOWS: 

"DISCRIMINATION OR SEGREGATION BY AN ESTABLISHMENT IS SUPPORTED BY
STATE ACTION WITHIN THE MEANING OF THIS TITLE IF SUCH DISCRIMINATION OR
SEGREGATION (1) IS CARRIED ON UNDER COLOR OF ANY LAW, STATUTE,
ORDINANCE, OR REGULATION; OR (2) IS CARRIED ON UNDER COLOR OF ANY
CUSTOM OR USAGE REQUIRED OR ENFORCED BY OFFICIALS OF THE STATE OR
POLITICAL SUBDIVISION THEREOF; OR (3) IS REQUIRED BY ACTION OF THE
STATE OR POLITICAL SUBDIVISION THEREOF." 

THAT DEFINITION IS WITHIN OUR DECISION OF SHELLEY V. KRAEMER, 334
U.S. 1, FOR THE "DISCRIMINATION" IN THE PRESENT CASES IS "ENFORCED BY
OFFICIALS OF THE STATE," I.E., BY THE STATE JUDICIARY UNDER THE
TRESPASS LAWS.  (FN3)  AS WE WROTE IN SHELLEY V. KRAEMER, SUPRA, 19: 

"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.  THE DIFFERENCE BETWEEN JUDICIAL
ENFORCEMENT AND NON-ENFORCEMENT OF THE RESTRICTIVE COVENANTS IS THE
DIFFERENCE TO PETITIONERS BETWEEN BEING DENIED RIGHTS OF PROPERTY
AVAILABLE TO OTHER MEMBERS OF THE COMMUNITY AND BEING ACCORDED FULL
ENJOYMENT OF THOSE RIGHTS ON AN EQUAL FOOTING." 

KINDS OF STATE ACTION AT ANY PUBLIC ESTABLISHMENT - NOT JUST AT THE
PREVIOUSLY ENUMERATED PLACES OF PUBLIC ACCOMMODATION: 

"ALL PERSONS SHALL BE ENTITLED TO BE FREE, AT ANY ESTABLISHMENT OR
PLACE, FROM DISCRIMINATION OR SEGREGATION OF ANY KIND ON THE GROUND OF
RACE, COLOR, RELIGION, OR NATIONAL ORIGIN, IF SUCH DISCRIMINATION OR
SEGREGATION IS OR PURPORTS TO BE REQUIRED BY ANY LAW, STATUTE,
ORDINANCE, REGULATION, RULE, OR ORDER OF A STATE OR ANY AGENCY OR
POLITICAL SUBDIVISION THEREOF." 

THUS THE ESSENCE OF MANY OF THE GUARANTEES EMBODIED IN THE ACT ARE
THOSE CONTAINED IN THE FOURTEENTH AMENDMENT. 

THE COMMERCE CLAUSE, TO BE SURE, ENTERS INTO SOME OF THE DEFINITIONS
OF "PLACE OF PUBLIC ACCOMMODATION" IN SECS. 201(B) AND (C).  THUS A
"RESTAURANT" IS INCLUDED, SEC. 201(B)(2), "IF  ... IT SERVES OR OFFERS
TO SERVE INTERSTATE TRAVELERS OR A SUBSTANTIAL PORTION OF THE FOOD
WHICH IT SERVES  ...  HAS MOVED IN COMMERCE."  SEC. 201(C)(2).  BUT ANY
"MOTEL" IS INCLUDED "WHICH PROVIDES LODGING TO TRANSIENT GUESTS, OTHER
THAN AN ESTABLISHMENT LOCATED WITHIN A BUILDING WHICH CONTAINS NOT MORE
THAN FIVE ROOMS FOR RENT OR HIRE AND WHICH IS ACTUALLY OCCUPIED BY THE
PROPRIETOR OF SUCH ESTABLISHMENT AS HIS RESIDENCE."  SECS. 201(B)(1)
AND (C)(1).  PROVIDING LODGING "TO TRANSIENT GUESTS" IS NOT STRICTLY
COMMERCE CLAUSE TALK, FOR THE PHRASE APTLY DESCRIBES ANY GUEST - LOCAL
OR INTERSTATE. 

THUS SOME OF THE DEFINITIONS OF "PLACE OF PUBLIC ACCOMMODATION" IN
SEC. 201(B) ARE IN COMMERCE CLAUSE LANGUAGE AND SOME ARE NOT.  INDEED
SEC. 201(B) IS EXPLICITLY BIFURCATED.  AN ESTABLISHMENT "WHICH SERVES
THE PUBLIC IS A PLACE OF PUBLIC ACCOMMODATION," SAYS SEC.  201(B),
UNDER EITHER OF TWO CONDITIONS:  FIRST, "IF ITS OPERATIONS AFFECT
COMMERCE," OR SECOND, "IF DISCRIMINATION OR SEGREGATION BY IT IS
SUPPORTED BY STATE ACTION." 

THE HOUSE REPORT EMPHASIZES THESE DUAL BASES ON WHICH THE ACT RESTS
(H.R. REP. NO. 914, 88TH CONG., 1ST SESS., P. 20) - A SITUATION WHICH A
MINORITY RECOGNIZED WAS BEING ATTEMPTED AND WHICH IT OPPOSED.  ID., PP.
98-101. 

THE SENATE COMMITTEE LAID EMPHASIS ON THE COMMERCE CLAUSE.  S. REP.
NO. 872, 88TH CONG., 2D SESS., PP. 12-13.  THE USE OF THE COMMERCE
CLAUSE TO SURMOUNT WHAT WAS THOUGHT TO BE THE OBSTACLE OF THE CIVIL
RIGHTS CASES, 109 U.S. 3, IS MENTIONED.  IBID.  AND THE ECONOMIC
ASPECTS OF THE PROBLEMS OF DISCRIMINATION ARE HEAVILY ACCENTED.  ID.,
P. 17 ET SEQ. BUT IT IS CLEAR THAT THE OBJECTIVES OF THE FOURTEENTH
AMENDMENT WERE BY NO MEANS IGNORED.  AS STATED IN THE SENATE REPORT: 

"DOES THE OWNER OF PRIVATE PROPERTY DEVOTED TO USE AS A PUBLIC
ESTABLISHMENT ENJOY A PROPERTY RIGHT TO REFUSE TO DEAL WITH ANY MEMBER
OF THE PUBLIC BECAUSE OF THAT MEMBER'S RACE, RELIGION, OR NATIONAL
ORIGIN?  AS NOTED PREVIOUSLY, THE ENGLISH COMMON LAW ANSWERED THIS
QUESTION IN THE NEGATIVE.  IT REASONED THAT ONE WHO EMPLOYED HIS
PRIVATE PROPERTY FOR PURPOSES OF COMMERCIAL GAIN BY OFFERING GOODS OR
SERVICES TO THE PUBLIC MUST STICK TO HIS BARGAIN.  IT IS TO BE
REMEMBERED THAT THE RIGHT OF THE PRIVATE PROPERTY OWNER TO SERVE OR
SELL TO WHOM HE PLEASED WAS NEVER CLAIMED WHEN LAWS WERE ENACTED
PROHIBITING THE PRIVATE PROPERTY OWNER FROM DEALING WITH PERSONS OF A
PARTICULAR RACE.  NOR WERE SUCH LAWS EVER STRUCK DOWN AS AN
INFRINGEMENT UPON THIS SUPPOSED RIGHT OF THE PROPERTY OWNER. 

"BUT THERE ARE STRONGER AND MORE PERSUASIVE REASONS FOR NOT ALLOWING
CONCEPTS OF PRIVATE PROPERTY TO DEFEAT PUBLIC ACCOMMODATIONS
LEGISLATION.  THE INSTITUTION OF PRIVATE PROPERTY EXISTS FOR THE
PURPOSE OF ENHANCING THE INDIVIDUAL FREEDOM AND LIBERTY OF HUMAN
BEINGS.  THIS INSTITUTION ASSURES THAT THE INDIVIDUAL NEED NOT BE AT
THE MERCY OF OTHERS, INCLUDING GOVERNMENT, IN ORDER TO EARN A
LIVELIHOOD AND PROSPER FROM HIS INDIVIDUAL EFFORTS.  PRIVATE PROPERTY
PROVIDES THE INDIVIDUAL WITH SOMETHING OF VALUE THAT WILL SERVE HIM
WELL IN OBTAINING WHAT HE DESIRES OR REQUIRES IN HIS DAILY LIFE. 

"IS THIS TIME HONORED MEANS TO FREEDOM AND LIBERTY NOW TO BE TWISTED
SO AS TO DEFEAT INDIVIDUAL FREEDOM AND LIBERTY?  CERTAINLY DENIAL OF A
RIGHT TO DISCRIMINATE OR SEGREGATE BY RACE OR RELIGION WOULD NOT WEAKEN
THE ATTRIBUTES OF PRIVATE PROPERTY THAT MAKE IT AN EFFECTIVE MEANS OF
OBTAINING INDIVIDUAL FREEDOM.  IN FACT, IN ORDER TO ASSURE THAT THE
INSTITUTION OF PRIVATE PROPERTY SERVES THE END OF INDIVIDUAL FREEDOM
AND LIBERTY IT HAS BEEN RESTRICTED IN MANY INSTANCES.  THE MOST
STRIKING EXAMPLE OF THIS IS THE ABOLITION OF SLAVERY.  SLAVES WERE
TREATED AS ITEMS OF PRIVATE PROPERTY, YET SURELY NO MAN DEDICATED TO
THE CAUSE OF INDIVIDUAL FREEDOM COULD CONTEND THAT INDIVIDUAL FREEDOM
AND LIBERTY SUFFERED BY EMANCIPATION OF THE SLAVES. 

"THERE IS NOT ANY QUESTION THAT ORDINARY ZONING LAWS PLACE FAR
GREATER RESTRICTIONS UPON THE RIGHTS OF PRIVATE PROPERTY OWNERS THAN
WOULD PUBLIC ACCOMMODATIONS LEGISLATION.  ZONING LAWS TELL THE OWNER OF
PRIVATE PROPERTY TO WHAT TYPE OF BUSINESS HIS PROPERTY MAY BE DEVOTED,
WHAT STRUCTURES HE MAY ERECT UPON THAT PROPERTY, AND EVEN WHETHER HE
MAY DEVOTE HIS PRIVATE PROPERTY TO ANY BUSINESS PURPOSE WHATSOEVER. 
SUCH LAWS AND REGULATIONS RESTRICTING PRIVATE PROPERTY ARE NECESSARY SO
THAT HUMAN BEINGS MAY DEVELOP THEIR COMMUNITIES IN A REASONABLE AND
PEACEFUL MANNER.  SURELY THE PRESENCE OF SUCH RESTRICTIONS DOES NOT
DETRACT FROM THE ROLE OF PRIVATE PROPERTY IN SECURING INDIVIDUAL
LIBERTY AND FREEDOM.    "NOR CAN IT BE REASONABLY ARGUED THAT RACIAL OR
RELIGIOUS DISCRIMINATION IS A VITAL FACTOR IN THE ABILITY OF PRIVATE
PROPERTY TO CONSTITUTE AN EFFECTIVE VEHICLE FOR ASSURING PERSONAL
FREEDOM.  THE PLEDGE OF THIS NATION IS TO SECURE FREEDOM FOR EVERY
INDIVIDUAL; THAT PLEDGE WILL BE FURTHERED BY ELIMINATION OF SUCH
PRACTICES."  ID., PP. 22-23. 

THUS WHILE I AGREE WITH THE COURT THAT CONGRESS IN FASHIONING THE
PRESENT ACT USED THE COMMERCE CLAUSE TO REGULATE RACIAL SEGREGATION, IT
ALSO USED (AND PROPERLY SO) SOME OF ITS POWER UNDER SEC. 5 OF THE
FOURTEENTH AMENDMENT. 

I REPEAT WHAT I SAID EARLIER, THAT OUR DECISION SHOULD BE BASED ON
THE FOURTEENTH AMENDMENT, THEREBY PUTTING AN END TO ALL OBSTRUCTIONIST
STRATEGIES AND ALLOWING EVERY PERSON - WHATEVER HIS RACE, CREED, OR
COLOR - TO PATRONIZE ALL PLACES OF PUBLIC ACCOMMODATION WITHOUT
DISCRIMINATION WHETHER HE TRAVELS INTERSTATE OR INTRASTATE. 

FN1  FOR A SYNOPSIS OF THE LEGISLATIVE HISTORY SEE THE APPENDIX TO
THIS OPINION. 

FN2  SEE PETERSON V. CITY OF GREENVILLE, 373 U.S. 244 (DISCRIMINATION
IN RESTAURANT); LOMBARD V. LOUISIANA, 373 U.S. 267 (DISCRIMINATION IN
RESTAURANT); BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715
(DISCRIMINATION IN RESTAURANT); WATSON V. CITY OF MEMPHIS, 373 U.S. 526
(DISCRIMINATION IN CITY PARK); BROWN V. BOARD OF EDUCATION, 347 U.S.
483 (DISCRIMINATION IN PUBLIC SCHOOL SYSTEM); NIXON V. HERNDON, 273
U.S. 536 (DISCRIMINATION IN VOTING). 

FN3  THE GEORGIA TRESPASS LAW IS FOUND IN GA. CODE ANN., SEC. 26-3005
(1963 SUPP.), AND THAT OF ALABAMA IN ALA. CODE, TIT. 14, SEC. 426 (1958
RECOMP.).

              APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS,
CONCURRING. 

(1)  THE ADMINISTRATION BILL (AS INTRODUCED IN THE HOUSE BY
CONGRESSMAN CELLER, IT WAS H.R. 7152). 

UNLIKE THE ACT AS IT FINALLY BECAME LAW, THIS BILL (A) CONTAINED
FINDINGS (PP. 10-13) WHICH DESCRIBED DISCRIMINATION IN PLACES OF PUBLIC
ACCOMMODATION AND IN FINDINGS (H) AND (I) CONNECTED THIS DISCRIMINATION
TO STATE ACTION AND INVOKED FOURTEENTH AMENDMENT POWERS TO DEAL WITH
THE PROBLEM; AND (B) IN SETTING FORTH THE PUBLIC ESTABLISHMENTS WHICH
WERE COVERED, IT USED ONLY COMMERCE-TYPE LANGUAGE AND DID NOT CONTAIN
ANYTHING LIKE THE PRESENT SEC. 201(D) AND ITS LINK TO SEC. 201(B) - THE
"OR" CLAUSE IN SEC. 201(B).  NOR DID THE BILL CONTAIN THE PRESENT SEC.
202. 

IN THE HEARINGS BEFORE THE HOUSE JUDICIARY SUBCOMMITTEE THE ATTORNEY
GENERAL STATED CLEARLY AND REPEATEDLY THAT WHILE THE BILL RELIED
"PRIMARILY" ON THE COMMERCE CLAUSE, IT WAS ALSO INTENDED TO REST ON THE
FOURTEENTH AMENDMENT.  SEE HEARINGS BEFORE SUBCOMMITTEE NO. 5, HOUSE
JUDICIARY COMMITTEE, 88TH CONG., 1ST SESS., 1375-1376, 1388, 1396,
1410, 1417-1419. 

(2)  THE SUBCOMMITTEE BILL (AS REPORTED TO THE FULL HOUSE JUDICIARY
COMMITTEE). 

THE ATTORNEY GENERAL TESTIFIED AGAINST PORTIONS OF THIS BILL.  HE
REITERATED THAT THE ADMINISTRATION BILL RESTED ON THE FOURTEENTH
AMENDMENT AS WELL AS ON THE COMMERCE CLAUSE: SEE HEARINGS, HOUSE
JUDICIARY COMMITTEE ON H.R. 7152, AS AMENDED BY SUBCOMMITTEE NO. 5,
88TH CONG., 1ST SESS., 2693, 2700, 2764.  BUT THIS BILL ADDED FOR THE
FIRST TIME A PROVISION SIMILAR TO THE PRESENT SEC. 201(D) - ONLY MUCH
BROADER.  SEE ID., AT 2656, FIRST FULL PARAGRAPH.  (APPARENTLY THIS
ADDITION WAS IN RESPONSE TO THE URGINGS OF THOSE WHO WANTED TO BROADEN
THE BILL AND WHO FAILED TO COMPREHEND THAT THE ADMINISTRATION BILL
ALREADY RESTED, DESPITE ITS COMMERCE LANGUAGE, ON THE FOURTEENTH
AMENDMENT.)  THE ATTORNEY GENERAL FEARED THAT THE NEW PROVISION WENT
TOO FAR.  FURTHER, THE NEW PROVISION, UNLIKE THE PRESENT SEC. 201(D)
BUT LIKE THE PRESENT SEC. 202, DID NOT LIMIT COVERAGE TO THOSE
ESTABLISHMENTS SPECIFICALLY DEFINED AS PLACES OF PUBLIC ACCOMMODATION;
RATHER IT REFERRED TO ALL BUSINESSES OPERATING UNDER STATE
"AUTHORIZATION, PERMISSION, OR LICENSE."  SEE ID., AT 2656.  THE
ATTORNEY GENERAL OBJECTED TO THIS:  CONGRESS OUGHT NOT TO INVOKE THE
FOURTEENTH AMENDMENT GENERALLY BUT RATHER OUGHT TO SPECIFY THE
ESTABLISHMENTS THAT WOULD BE COVERED.  SEE ID., AT 2656, 2675-2676,
2726.  THIS THE ADMINISTRATION BILL HAD DONE BY COVERING ONLY THOSE
ESTABLISHMENTS WHICH HAD CERTAIN COMMERCIAL CHARACTERISTICS. 

SUBSEQUENTLY THE ATTORNEY GENERAL INDICATED THAT HE WOULD ACCEPT A
PORTION OF THE SUBCOMMITTEE ADDITIONS THAT ULTIMATELY BECAME SECS.
201(D) AND 202; BUT HE MADE IT CLEAR THAT HE DID NOT UNDERSTAND THAT
THESE ADDITIONS REMOVED THE FOURTEENTH AMENDMENT FOUNDATION WHICH THE
ADMINISTRATION HAD PLACED UNDER ITS BILL.  HE DID NOT UNDERSTAND THAT
THESE ADDITIONS CONFINED THE FOURTEENTH AMENDMENT FOUNDATION OF THE
BILL TO THE ADDITIONS ALONE; THE COMMERCE LANGUAGE SECTIONS WERE STILL
SUPPORTED IN THE ALTERNATIVE BY THE FOURTEENTH AMENDMENT.  SEE
ESPECIALLY ID., AT 2764; COMPARE P. 2727 WITH P. 2698.  THE
SUBCOMMITTEE SAID THAT IT MADE THESE ADDITIONS IN ORDER TO INSURE THAT
THE FOURTEENTH AMENDMENT WAS RELIED ON.  SEE ID., AT 2763; ALSO
SUBCOMMITTEE HEARINGS, SUPRA, 1413-1421.   AND THE ATTORNEY GENERAL
REPEATED AT P. 2764 THAT HE WOULD AGREE TO WHATEVER LANGUAGE WAS
NECESSARY TO MAKE IT CLEAR THAT THE BILL RELIED ON THE FOURTEENTH
AMENDMENT AS WELL AS THE COMMERCE CLAUSE. 

THEREFORE IT SEEMS CLEAR THAT A DUAL MOTIVE WAS BEHIND THE ADDITION
OF WHAT ULTIMATELY BECAME SECS. 201(D) AND 202:  (1) TO EXPAND THE
COVERAGE OF THE ACT; (2) TO MAKE IT CLEAR THAT CONGRESS WAS INVOKING
ITS POWERS UNDER THE FOURTEENTH AMENDMENT. 

(3)  THE COMMITTEE BILL (AS REPORTED TO THE HOUSE). 

THIS BILL CONTAINS THE PRESENT SECS. 201(D) AND 202, EXCEPT THAT
"STATE ACTION" IS GIVEN AN EVEN BROADER DEFINITION IN SEC. 201(D) AS
THEN WRITTEN THAN IT HAS IN THE PRESENT SEC.  201(D). 

THE HOUSE REPORT HAS THE FOLLOWING STATEMENT:  "SECTION 201(D)
DELINEATES THE CIRCUMSTANCES UNDER WHICH DISCRIMINATION OR SEGREGATION
BY AN ESTABLISHMENT IS SUPPORTED BY STATE ACTION WITHIN THE MEANING OF
TITLE II."  H.R. REP. NO. 914, 88TH CONG., 1ST SESS., 21.  ON P. 117 OF
THE REPORT REPRESENTATIVE CRAMER SAYS:  "THE 14TH AMENDMENT APPROACH TO
PUBLIC ACCOMMODATIONS (IN THE COMMITTEE BILL AS CONTRASTED WITH THE
ADMINISTRATION BILL) IS NOT LIMITED TO THE NARROWER DEFINITION OF
'ESTABLISHMENT' UNDER THE INTERSTATE COMMERCE APPROACH AND COVERS BROAD
STATE 'CUSTOM OR USAGE' OR WHERE DISCRIMINATION IS 'FOSTERED OR
ENCOURAGED' BY STATE ACTION (SEC. 201(D))."  BY IMPLICATION THE
COMMITTEE HAS MERELY BROADENED THE COVERAGE OF THE ADMINISTRATION'S
BILL BY ADDING THE EXPLICIT STATE ACTION LANGUAGE; IT HAS NOT THEREBY
REMOVED THE FOURTEENTH AMENDMENT FOUNDATION FROM THE COMMERCE LANGUAGE
COVERAGE. 

CONGRESSMAN CELLER INTRODUCED INTO THE CONGRESSIONAL RECORD A SERIES
OF MEMORANDA ON THE CONSTITUTIONALITY OF THE VARIOUS TITLES OF THE
BILL; AT PP. 1524-1526* THE FOURTEENTH AMENDMENT IS DISCUSSED; AT P.
1526 IT IS SUGGESTED THAT THE THIRTEENTH AMENDMENT IS TO BE REGARDED AS
"ADDITIONAL AUTHORITY" FOR THE LEGISLATION. 

*ALL CITATIONS ARE TO VOL. 110, CONGRESSIONAL RECORD. 

AT P. 1917 CONGRESSMAN WILLIS INTRODUCES AN AMENDMENT TO STRIKE OUT
"TRANSIENT GUESTS" AND TO REPLACE THESE WORDS WITH "INTERSTATE
TRAVELERS."  AS REPORTED, SAYS CONGRESSMAN WILLIS, THE BILL BOLDLY
UNDERTAKES TO REGULATE INTRASTATE COMMERCE, AT LEAST TO THIS EXTENT. 
IBID.  THE PURPOSE OF THE AMENDMENT IS SIMPLY TO RELATE "THIS BILL TO
THE POWERS OF CONGRESS."  IBID.  CONGRESSMAN CELLER, THE FLOOR MANAGER
OF THE BILL, WILL NOT ACCEPT THE AMENDMENT, WHICH INTRODUCES AN ELEMENT
OF UNCERTAINTY INTO THE SCOPE OF THE BILL'S COVERAGE.  AT P. 1924
CONGRESSMAN LINDSAY MAKES REMARKS INDICATING THAT IT IS HIS
UNDERSTANDING THAT THE COMMERCE LANGUAGE PORTIONS OF SEC. 201 REST ONLY
ON THE COMMERCE CLAUSE, WHILE THE FOURTEENTH AMENDMENT IS INVOKED TO
SUPPORT ONLY SEC. 201(D). 

BUT AT P. 1926 CONGRESSMAN MACGREGOR, A MEMBER OF THE JUDICIARY
SUBCOMMITTEE, STATES, IN RESPONSE TO CONGRESSMAN WILLIS' CHALLENGE TO
THE CONSTITUTIONALITY OF THE "TRANSIENT GUESTS" COVERAGE, THAT: "WHEN
THE GENTLEMAN FROM LOUISIANA SEEKS IN SUBPARAGRAPH (1) ON PAGE 43 (SEC.
201(B)(1)) TO TIGHTLY CIRCUMSCRIBE THE NUMBER OF INNS, HOTELS, AND
MOTELS TO BE COVERED UNDER THIS LEGISLATION HE DOES VIOLENCE TO THE
1883 SUPREME COURT DECISION WHERE IT DEFINES THE AUTHORITY OF THE
CONGRESS UNDER THE 14TH AMENDMENT ...  .  MR. CHAIRMAN, IN LIGHT OF THE
1883 SUPREME COURT DECISION CITED BY THE GENTLEMAN FROM LOUISIANA, AND
IN LIGHT OF A SCORE OF SUBSEQUENT DECISIONS, IT IS PRECISELY THE
LEGISLATIVE AUTHORITY GRANTED IN THE 14TH AMENDMENT THAT WE SEEK HERE
TO EXERCISE." 

AT PP. 1962-1968 THERE IS THE DISCUSSION SURROUNDING THE PASSAGE OF
THE GOODELL AMENDMENT STRIKING THE WORK "ENCOURAGED" FROM SEC.
201(D)(2) OF THE BILL AS REPORTED.  LIKEWISE IN THESE PAGES THERE IS
THE DISCUSSION CONCERNING THE WILLIS AMENDMENT TO THE GOODELL
AMENDMENT: THIS AMENDMENT ELIMINATED THE WORD "FOSTERED."  AFTER THE
ADOPTION OF THESE AMENDMENTS THE CUSTOM OR USAGE HAD TO BE "REQUIRED OR
ENFORCED" BY THE STATE - NOT MERELY "FOSTERED OR ENCOURAGED" IN ORDER
TO CONSTITUTE "STATE ACTION" WITHIN THE MEANING OF THE ACT. 

AT P. 1964 CONGRESSMAN SMITH OF VIRGINIA OFFERED AN AMENDMENT AS A
SUBSTITUTE TO THE GOODELL AMENDMENT THAT WOULD HAVE ELIMINATED THE
"CUSTOM OR USAGE" LANGUAGE ALTOGETHER.  CONGRESSMAN CELLER SAID IN
DEFENSE OF THE BILL AS REPORTED:  "CUSTOM OR USAGE IS NOT CONSTITUTED
MERELY BY A PRACTICE IN A NEIGHBORHOOD OR BY POPULAR ATTITUDE IN A
PARTICULAR COMMUNITY.  IT CONSISTS OF A PRACTICE WHICH, THOUGH NOT
EMBODIED IN LAW, RECEIVES NOTICE AND SANCTION TO THE EXTENT THAT IT IS
ENFORCED BY THE OFFICIALDOM OF THE STATE OR LOCALITY" (PP. 1964-1965). 
THE SMITH AMENDMENT WAS REJECTED BY THE HOUSE (P. 1967). 

IT WOULD SEEM THAT THE ACTION ON THIS SMITH SUBSTITUTE AND THE
STATEMENT BY CONGRESSMAN CELLER MEAN THAT A STATE'S ENFORCEMENT OF THE
CUSTOM OF SEGREGATION IN PLACES OF PUBLIC ACCOMMODATION BY THE USE OF
ITS TRESPASS LAWS IS A VIOLATION OF SEC. 201(D)(2). 

(4)  THE HOUSE BILL. 

THE HOUSE BILL WAS PLACED DIRECTLY ON THE SENATE CALENDAR AND DID NOT
GO TO COMMITTEE.  THE DIRKSEN-MANSFIELD SUBSTITUTE ADOPTED BY THE
SENATE MADE ONLY ONE CHANGE IN SECS. 201 AND 202:  IT CHANGED "A" TO
"THE" IN SEC. 201(D)(3).  SENATOR DIRKSEN NOWHERE MADE ANY EXPLICIT
REFERENCES TO THE CONSTITUTIONAL BASES OF TITLE II.  THUS IT IS FAIR TO
ASSUME THAT THE SENATE'S UNDERSTANDING ON THIS QUESTION WAS NO
DIFFERENT FROM THE HOUSE'S VIEW.  THE SENATE SUBSTITUTE WAS ADOPTED
WITHOUT CHANGE BY THE HOUSE ON JULY 2, 1964, AND SIGNED BY THE
PRESIDENT ON THE SAME DAY. 

MR. JUSTICE GOLDBERG, CONCURRING.* 

*THIS OPINION APPLIES ALSO TO NO. 543, KATZENBACH V. MCCLUNG, POST,
P. 294. 

I JOIN IN THE OPINIONS AND JUDGEMENTS OF THE COURT, SINCE I AGREE
"THAT THE ACTION OF THE CONGRESS IN THE ADOPTION OF THE ACT AS APPLIED
HERE  ...  IS WITHIN THE POWER GRANTED IT BY THE COMMERCE CLAUSE OF THE
CONSTITUTION, AS INTERPRETED BY THIS COURT FOR 140 YEARS," ANTE, AT
261. 

THE PRIMARY PURPOSE OF THE CIVIL RIGHTS ACT OF 1964, HOWEVER, AS THE
COURT RECOGNIZES, AND AS I WOULD UNDERSCORE, IS THE VINDICATION OF
HUMAN DIGNITY AND NOT MERE ECONOMICS.  THE SENATE COMMERCE COMMITTEE
MADE THIS QUITE CLEAR: 

"THE PRIMARY PURPOSE OF ...  (THE CIVIL RIGHTS ACT), THEN, IS TO
SOLVE THIS PROBLEM, THE DEPRIVATION OF PERSONAL DIGNITY THAT SURELY
ACCOMPANIES DENIALS OF EQUAL ACCESS TO PUBLIC ESTABLISHMENTS. 
DISCRIMINATION IS NOT SIMPLY DOLLARS AND CENTS, HAMBURGERS AND MOVIES;
IT IS THE HUMILIATION, FRUSTRATION, AND EMBARRASSMENT THAT A PERSON
MUST SURELY FEEL WHEN HE IS TOLD THAT HE IS UNACCEPTABLE AS A MENBER OF
THE PUBLIC BECAUSE OF HIS RACE OR COLOR.  IT IS EQUALLY THE INABILITY
TO EXPLAIN TO A CHILD THAT REGARDLESS OF EDUCATION, CIVILITY, COURTESY,
AND MORALITY HE WILL BE DENIED THE RIGHT TO ENJOY EQUAL TREATMENT, EVEN
THOUGH HE BE A CITIZEN OF THE UNITED STATES AND MAY WELL BE CALLED UPON
TO LAY DOWN HIS LIFE TO ASSURE THIS NATION CONTINUES."  S. REP. NO.
872, 88TH CONG., 2D SESS., 16. 

MOREOVER, THAT THIS IS THE PRIMARY PURPOSE OF THE ACT IS EMPHASIZED
BY THE FACT THAT WHILE SEC. 201(C) SPEAKS ONLY IN TERMS OF
ESTABLISHMENTS WHICH "AFFECT COMMERCE," IT IS CLEAR THAT CONGRESS BASED
THIS SECTION NOT ONLY ON ITS POWER UNDER THE COMMERCE CLAUSE BUT ALSO
ON SEC. 5 OF THE FOURTEENTH AMENDMENT.  (FN1)  THE CASES CITED IN THE
COURT'S OPINIONS ARE CONCLUSIVE THAT CONGRESS COULD EXERCISE ITS POWERS
UNDER THE COMMERCE CLAUSE TO ACCOMPLISH THIS PURPOSE.  AS SECS. 201(B)
AND (C) ARE UNDOUBTEDLY A VALID EXERCISE OF THE COMMERCE CLAUSE POWER
FOR THE REASONS STATED IN THE OPINIONS OF THE COURT, THE COURT
CONSIDERS THAT IT IS UNNECESSARY TO CONSIDER WHETHER IT IS ADDITIONALLY
SUPPORTABLE BY CONGRESS' EXERTION OF ITS POWER UNDER SEC. 5 OF THE
FOURTEENTH AMENDMENT. 

IN MY CONCURRING OPINION IN BELL V. MARYLAND, 378 U.S. 226, 317,
HOWEVER, I EXPRESSED MY CONVICTION THAT SEC. 1 OF THE FOURTEENTH
AMENDMENT GUARANTEES TO ALL AMERICANS THE CONSTITUTIONAL RIGHT "TO BE
TREATED AS EQUAL MEMBERS OF THE COMMUNITY WITH RESPECT TO PUBLIC
ACCOMMODATIONS," AND THAT "CONGRESS HAS AUTHORITY UNDER SEC. 5 OF THE
FOURTEENTH AMENDMENT, OR UNDER THE COMMERCE CLAUSE, ART. I, SEC. 8, TO
IMPLEMENT THE RIGHTS PROTECTED BY SEC. 1 OF THE FOURTEENTH AMENDMENT. 
IN THE GIVE-AND-TAKE OF THE LEGISLATIVE PROCESS, CONGRESS CAN FASHION A
LAW DRAWING THE GUIDELINES NECESSARY AND APPROPRIATE TO FACILITATE
PRACTICAL ADMINISTRATION AND TO DISTINGUISH BETWEEN GENUINELY PUBLIC
AND PRIVATE ACCOMMODATIONS."  THE CHALLENGED ACT IS JUST SUCH A LAW
AND, IN MY VIEW, CONGRESS CLEARLY HAD AUTHORITY UNDER BOTH SEC. 5 OF
THE FOURTEENTH AMENDMENT AND THE COMMERCE CLAUSE TO ENACT THE CIVIL
RIGHTS ACT OF 1964.    FN1  HEARINGS IN CONGRESS AS WELL AS STATEMENTS
BY ADMINISTRATION SPOKESMEN SHOW THAT THE ORIGINAL BILL, PRESENTED BY
THE ADMINISTRATION, WAS SO BASED EVEN THOUGH IT CONTAINED NO CLAUSE
WHICH RESEMBLED SEC. 201(D) - THE SO-CALLED "STATE ACTION" PROVISION -
OR WHICH EVEN MENTIONED "STATE ACTION."  SEE, E.G., HEARINGS BEFORE
SENATE COMMITTEE ON COMMERCE ON S. 1732, 88TH CONG., 1ST SESS., 23, 27
28, 57, 74, 230, 247-248, 250, 252-253, 256, 259; HEARINGS BEFORE
SENATE JUDICIARY COMMITTEE ON S. 1731, 88TH CONG., 1ST SESS., 151, 152,
186; HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE
JUDICIARY ON H.R. 7152, 88TH CONG., 1ST SESS., 13996, 1410; HEARINGS
BEFORE HOUSE JUDICIARY COMMITTEE ON H.R. 7152, AS AMENDED BY
SUBCOMMITTEE NO. 5, 88TH CONG., 1ST SESS., 2693, 2699-2700; S. REP. NO.
872, 88TH CONG., 2D SESS., 2.  THE LATER ADDITIONS OF "STATE ACTION"
LANGUAGE TO SEC. 201(A) AND SEC. 201(D) DID NOT REMOVE THE DUAL
COMMERCE CLAUSE-FOURTEENTH AMENDMENT SUPPORT FROM THE REST OF THE BILL,
FOR THOSE WHO ADDED THIS CLAUSE DID NOT INTEND THEREBY TO BIFURCATE ITS
CONSTITUTIONAL BASIS.  THIS LANGUAGE AND SEC. 201(D) WERE ADDED, FIRST,
IN ORDER TO MAKE CERTAIN THAT THE ACT WOULD COVER ALL OR ALMOST ALL OF
THE SITUATIONS AS TO WHICH THIS COURT MIGHT HOLD THAT SEC. 1 OF THE
FOURTEENTH AMENDMENT APPLIED.  SENATOR HART STATED THAT NOT TO DO SO
WOULD "EMBARRASS CONGRESS BECAUSE  ...  THE REACH OF THE ADMINISTRATION
BILL WOULD BE LESS INCLUSIVE THAN THAT COURT-ESTABLISHED RIGHT." 
HEARINGS BEFORE SENATE COMMERCE COMMITTEE, SUPRA, AT 256.  SEE ALSO
ID., AT 259-262.  SECOND, THE SPONSORS OF SEC. 201(D) WERE TRYING TO
MAKE EVEN CLEARER THE FOURTEENTH AMENDMENT BASIS OF TITLE II.  SEE,
E.G., HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE, SUPRA,
AT 1413-1418; HEARINGS BEFORE THE SENATE COMMERCE COMMITTEE, SUPRA, AT
259-262.  THERE IS NO INDICATION THAT THEY THOUGHT THE INCLUSION OF
SEC. 201(D) WOULD REMOVE THE FOURTEENTH AMENDMENT FOUNDATION OF THE
REST OF THE TITLE.  THIRD, THE HISTORY OF THE BILL AFTER PROVISIONS
SIMILAR TO SEC. 201(D) WERE ADDED CONTAINS REFERENCES TO THE DUAL
FOUNDATION OF ALL TITLE II PROVISIONS BEFORE US.  SEE HEARINGS BEFORE
SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE, SUPRA, AT 1396, 1410;
HEARINGS BEFORE HOUSE JUDICIARY COMMITTEE, SUPRA, AT 2693, 2699-2700;
110 CONG. REC. 1925-1928. 
..END :





















KATZENBACH V. MCCLUNG 379 U.S. 294 


NO. 543.  ARGUED OCTOBER 5, 1964 - DECIDED DECEMBER 14, 1964 - 233 F.
SUPP. 815, REVERSED. 


APPELLEES, WHOSE RESTAURANT IN BIRMINGHAM, ALABAMA, CATERS TO LOCAL
WHITE CUSTOMERS WITH TAKE-OUT SERVICE FOR NEGROES, SERVING FOOD A
SUBSTANTIAL PORTION OF WHICH HAS MOVED IN INTERSTATE COMMERCE, SUED TO
ENJOIN APPELLANTS FROM ENFORCING AGAINST THEIR RESTAURANT AND OTHERS
TITLE II OF THE CIVIL RIGHTS ACT OF 1964 WHICH THEY CLAIMED WAS
UNCONSTITUTIONAL.  A THREE-JUDGE DISTRICT COURT GRANTED AN INJUNCTION,
HOLDING THAT THERE WAS NO DEMONSTRABLE CONNECTION BETWEEN FOOD
PURCHASED IN INTERSTATE COMMERCE AND SOLD IN A RESTAURANT AND CONGRESS'
CONCLUSION THAT DISCRIMINATION IN THE RESTAURANT WOULD AFFECT COMMERCE
SO AS TO WARRANT REGULATION OF LOCAL ACTIVITIES TO PROTECT INTERSTATE
COMMERCE.  HELD: 

1.  SINCE INTERFERENCE WITH GOVERNMENTAL ACTION HAS OCCURRED AND THE
CONSTITUTIONALITY OF TITLE II IS BEFORE THE COURT IN A COMPANION CASE,
THE COURT REACHES THE MERITS OF THIS CASE BY CONSIDERING THE COMPLAINT
AS AN APPLICATION FOR DECLARATORY JUDGMENT, INSTEAD OF DENYING RELIEF
FOR WANT OF EQUITY JURISDICTION AS IT WOULD ORDINARILY DO ON THE GROUND
THAT APPELLEES SHOULD HAVE WAITED TO PURSUE THE STATUTORY PROCEDURES
FOR ADJUDICATION OF THEIR RIGHTS.  PP. 295-296. 

2.  CONGRESS ACTED WITHIN ITS POWER TO PROTECT AND FOSTER COMMERCE IN
EXTENDING COVERAGE OF TITLE II TO RESTAURANTS SERVING FOOD A
SUBSTANTIAL PORTION OF WHICH HAS MOVED IN INTERSTATE COMMERCE; SINCE IT
HAD AMPLE BASIS TO CONCLUDE THAT RACIAL DISCRIMINATION BY SUCH
RESTAURANTS BURDENED INTERSTATE TRADE.  PP. 300-305. 

KATZENBACH, ACTING ATTORNEY GENERAL, ET AL. V. MCCLUNG ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS ARGUED WITH NO. 515, HEART OF ATLANTA MOTEL V. UNITED
STATES, DECIDED THIS DATE, ANTE, P. 241, IN WHICH WE UPHELD THE
CONSTITUTIONAL VALIDITY OF TITLE II OF THE CIVIL RIGHTS ACT OF 1964
AGAINST AN ATTACK BY HOTELS, MOTELS, AND LIKE ESTABLISHMENTS.  THIS
COMPLAINT FOR INJUNCTIVE RELIEF AGAINST APPELLANTS ATTACKS THE
CONSTITUTIONALITY OF THE ACT AS APPLIED TO A RESTAURANT.  THE CASE WAS
HEARD BY A THREE-JUDGE UNITED STATES DISTRICT COURT AND AN INJUNCTION
WAS ISSUED RESTRAINING APPELLANTS FROM ENFORCING THE ACT AGAINST THE
RESTAURANT.  233 F. SUPP. 815.  ON DIRECT APPEAL, 28 U.S.C. SECS. 1252,
1253 (1958 ED.), WE NOTED PROBABLE JURISDICTION.  379 U.S. 802.  WE NOW
REVERSE THE JUDGMENT. 

1.  THE MOTION TO DISMISS. 

THE APPELLANTS MOVED IN THE DISTRICT COURT TO DISMISS THE COMPLAINT
FOR WANT OF EQUITY JURISDICTION AND THAT CLAIM IS PRESSED HERE.  THE
GROUNDS ARE THAT THE ACT AUTHORIZES ONLY PREVENTIVE RELIEF; THAT THERE
HAS BEEN NO THREAT OF ENFORCEMENT AGAINST THE APPELLEES AND THAT THEY
HAVE ALLEGED NO IRREPARABLE INJURY.  IT IS TRUE THAT ORDINARILY EQUITY
WILL NOT INTERFERE IN SUCH CASES.  HOWEVER, WE MAY AND DO CONSIDER THIS
COMPLAINT AS AN APPLICATION FOR A DECLARATORY JUDGMENT UNDER 28 U.S.C.
SECS. 2201 AND 2202 (1958 ED.).  IN THIS CASE, OF COURSE, DIRECT APPEAL
TO THIS COURT WOULD STILL LIE UNDER 28 U.S.C.  SEC. 1252 (1958 ED.). 
BUT EVEN THOUGH RULE 57 OF THE FEDERAL RULES OF CIVIL PROCEDURE PERMITS
DECLARATORY RELIEF ALTHOUGH ANOTHER ADEQUATE REMEDY EXISTS, IT SHOULD
NOT BE GRANTED WHERE A SPECIAL STATUTORY PROCEEDING HAS BEEN PROVIDED. 
SEE NOTES ON RULE 57 OF ADVISORY COMMITTEE ON RULES, 28 U.S.C. APP.
5178 (1958 ED.).  TITLE II PROVIDES FOR SUCH A STATUTORY PROCEEDING FOR
THE DETERMINATION OF RIGHTS AND DUTIES ARISING THEREUNDER, SECS. 204
207, AND COURTS SHOULD, THEREFORE, ORDINARILY REFRAIN FROM EXERCISING
THEIR JURISDICTION IN SUCH CASES. 

THE PRESENT CASE, HOWEVER, IS IN A UNIQUE POSITION.  THE INTERFERENCE
WITH GOVERNMENTAL ACTION HAS OCCURRED AND THE CONSTITUTIONAL QUESTION
IS BEFORE US IN THE COMPANION CASE OF HEART OF ATLANTA MOTEL AS WELL AS
IN THIS CASE.  IT IS IMPORTANT THAT A DECISION ON THE CONSTITUTIONALITY
OF THE ACT AS APPLIED IN THESE CASES BE ANNOUNCED AS QUICKLY AS
POSSIBLE.  FOR THESE REASONS, WE HAVE CONCLUDED, WITH THE ABOVE CAVEAT,
THAT THE DENIAL OF DISCRETIONARY DECLARATORY RELIEF IS NOT REQUIRED
HERE. 

2.  THE FACTS. 

OLLIE'S BARBECUE IS A FAMILY-OWNED RESTAURANT IN BIRMINGHAM, ALABAMA,
SPECIALIZING IN BARBECUED MEATS AND HOMEMADE PIES, WITH A SEATING
CAPACITY OF 220 CUSTOMERS.  IT IS LOCATED ON A STATE HIGHWAY 11 BLOCKS
FROM AN INTERSTATE ONE AND A SOMEWHAT GREATER DISTANCE FROM RAILROAD
AND BUS STATIONS.  THE RESTAURANT CATERS TO A FAMILY AND WHITE-COLLAR
TRADE WITH A TAKE-OUT SERVICE FOR NEGROES.  IT EMPLOYS 36 PERSONS, TWO
THIRDS OF WHOM ARE NEGROES. 

IN THE 12 MONTHS PRECEDING THE PASSAGE OF THE ACT, THE RESTAURANT
PURCHASED LOCALLY APPROXIMATELY $150,000 WORTH OF FOOD, $69,683 OR 46%
OF WHICH WAS MEAT THAT IT BROUGHT FROM A LOCAL SUPPLIER WHO HAD
PROCURED IT FROM OUTSIDE THE STATE.  THE DISTRICT COURT EXPRESSLY FOUND
THAT A SUBSTANTIAL PORTION OF THE FOOD SERVED IN THE RESTAURANT HAD
MOVED IN INTERSTATE COMMERCE.  THE RESTAURANT HAS REFUSED TO SERVE
NEGROES IN ITS DINING ACCOMMODATIONS SINCE ITS ORIGINAL OPENING IN
1927, AND SINCE JULY 2, 1964, IT HAS BEEN OPERATING IN VIOLATION OF THE
ACT.  THE COURT BELOW CONCLUDED THAT IF IT WERE REQUIRED TO SERVE
NEGROES IT WOULD LOSE A SUBSTANTIAL AMOUNT OF BUSINESS. 

ON THE MERITS, THE DISTRICT COURT HELD THAT THE ACT COULD NOT BE
APPLIED UNDER THE FOURTEENTH AMENDMENT BECAUSE IT WAS CONCEDED THAT THE
STATE OF ALABAMA WAS NOT INVOLVED IN THE REFUSAL OF THE RESTAURANT TO
SERVE NEGROES.  IT WAS ALSO ADMITTED THAT THE THIRTEENTH AMENDMENT WAS
AUTHORITY NEITHER FOR VALIDATING NOR FOR INVALIDATING THE ACT.  AS TO
THE COMMERCE CLAUSE, THE COURT FOUND THAT IT WAS "AN EXPRESS GRANT OF
POWER TO CONGRESS TO REGULATE INTERSTATE COMMERCE, WHICH CONSISTS OF
THE MOVEMENT OF PERSONS, GOODS OR INFORMATION FROM ONE STATE TO
ANOTHER"; AND IT FOUND THAT THE CLAUSE WAS ALSO A GRANT OF POWER "TO
REGULATE INTRASTATE ACTIVITIES, BUT ONLY TO THE EXTENT THAT ACTION ON
ITS PART IS NECESSARY OR APPROPRIATE TO THE EFFECTIVE EXECUTION OF ITS
EXPRESSLY GRANTED POWER TO REGULATE INTERSTATE COMMERCE."  THERE MUST
BE, IT SAID, A CLOSE AND SUBSTANTIAL RELATION BETWEEN LOCAL ACTIVITIES
AND INTERSTATE COMMERCE WHICH REQUIRES CONTROL OF THE FORMER IN THE
PROTECTION OF THE LATTER.  THE COURT CONCLUDED, HOWEVER, THAT THE
CONGRESS, RATHER THAN FINDING FACTS SUFFICIENT TO MEET THIS RULE, HAD
LEGISLATED A CONCLUSIVE PRESUMPTION THAT A RESTAURANT AFFECTS
INTERSTATE COMMERCE IF IT SERVES OR OFFERS TO SERVE INTERSTATE
TRAVELERS OR IF A SUBSTANTIAL PORTION OF THE FOOD WHICH IT SERVES HAS
MOVED IN COMMERCE.  THIS, THE COURT HELD, IT COULD NOT DO BECAUSE THERE
WAS NO DEMONSTRABLE CONNECTION BETWEEN FOOD PURCHASED IN INTERSTATE
COMMERCE AND SOLD IN A RESTAURANT AND THE CONCLUSION OF CONGRESS THAT
DISCRIMINATION IN THE RESTAURANT WOULD AFFECT THAT COMMERCE. 

THE BASIC HOLDING IN HEART OF ATLANTA MOTEL, ANSWERS MANY OF THE
CONTENTIONS MADE BY THE APPELLEES.  (FN1)  THERE WE OUTLINED THE
OVERALL PURPOSE AND OPERATIONAL PLAN OF TITLE II AND FOUND IT A VALID
EXERCISE OF THE POWER TO REGULATE INTERSTATE COMMERCE INSOFAR AS IT
REQUIRES HOTELS AND MOTELS TO SERVE TRANSIENTS WITHOUT REGARD TO THEIR
RACE OR COLOR.  IN THIS CASE WE CONSIDER ITS APPLICATION TO RESTAURANTS
WHICH SERVE FOOD A SUBSTANTIAL PORTION OF WHICH HAS MOVED IN COMMERCE. 

3.  THE ACT AS APPLIED. 

ENTITLED TO THE FULL AND EQUAL ENJOYMENT OF THE GOODS AND SERVICES OF
ANY PLACE OF PUBLIC ACCOMMODATION WITHOUT DISCRIMINATION OR SEGREGATION
ON THE GROUND OF RACE, COLOR, RELIGION, OR NATIONAL ORIGIN; AND SEC.
201(B) DEFINES ESTABLISHMENTS AS PLACES OF PUBLIC ACCOMMODATION IF
THEIR OPERATIONS AFFECT COMMERCE OR SEGREGATION BY THEM IS SUPPORTED BY
STATE ACTION.  SECTIONS 201(B)(2) AND (C) PLACE ANY "RESTAURANT  ...
PRINCIPALLY ENGAGED IN SELLING FOOD FOR CONSUMPTION ON THE PREMISES"
UNDER THE ACT "IF  ...  IT SERVES OR OFFERS TO SERVE INTERSTATE
TRAVELERS OR A SUBSTANTIAL PORTION OF THE FOOD WHICH IT SERVES ...  HAS
MOVED IN COMMERCE." 

OLLIE'S BARBECUE ADMITS THAT IT IS COVERED BY THESE PROVISIONS OF THE
ACT.  THE GOVERNMENT MAKES NO CONTENTION THAT THE DISCRIMINATION AT THE
RESTAURANT WAS SUPPORTED BY THE STATE OF ALABAMA.  THERE IS NO CLAIM
THAT INTERSTATE TRAVELERS FREQUENTED THE RESTAURANT.  THE SOLE
QUESTION, THEREFORE, NARROWS DOWN TO WHETHER TITLE II, AS APPLIED TO A
RESTAURANT ANNUALLY RECEIVING ABOUT $70,000 WORTH OF FOOD WHICH HAS
MOVED IN COMMERCE, IS A VALID EXERCISE OF THE POWER OF CONGRESS.  THE
GOVERNMENT HAS CONTENDED THAT CONGRESS HAD AMPLE BASIS UPON WHICH TO
FIND THAT RACIAL DISCRIMINATION AT RESTAURANTS WHICH RECEIVE FROM OUT
OF STATE A SUBSTANTIAL PORTION OF THE FOOD SERVED DOES, IN FACT, IMPOSE
COMMERCIAL BURDENS OF NATIONAL MAGNITUDE UPON INTERSTATE COMMERCE.  THE
APPELLEES' MAJOR ARGUMENT IS DIRECTED TO THIS PREMISE.  THEY URGE THAT
NO SUCH BASIS EXISTED.  IT IS TO THAT QUESTION THAT WE NOW TURN. 

4.  THE CONGRESSIONAL HEARINGS. 

AS WE NOTED IN HEART OF ATLANTA MOTEL BOTH HOUSES OF CONGRESS
CONDUCTED PROLONGED HEARINGS ON THE ACT.  AND, AS WE SAID THERE, WHILE
NO FORMAL FINDINGS WERE MADE, WHICH OF COURSE ARE NOT NECESSARY, IT IS
WELL THAT WE MAKE MENTION OF THE TESTIMONY AT THESE HEARINGS THE BETTER
TO UNDERSTAND THE PROBLEM BEFORE CONGRESS AND DETERMINE WHETHER THE ACT
IS A REASONABLE AND APPROPRIATE MEANS TOWARD ITS SOLUTION.  THE RECORD
IS REPLETE WITH TESTIMONY OF THE BURDENS PLACED ON INTERSTATE COMMERCE
BY RACIAL DISCRIMINATION IN RESTAURANTS.  A COMPARISON OF PER CAPITA
SPENDING BY NEGROES IN RESTAURANTS, THEATERS, AND LIKE ESTABLISHMENTS
INDICATED LESS SPENDING, AFTER DISCOUNTING INCOME DIFFERENCES, IN AREAS
WHERE DISCRIMINATION IS WIDELY PRACTICED.  THIS CONDITION, WHICH WAS
ESPECIALLY AGGRAVATED IN THE SOUTH, WAS ATTRIBUTED IN THE TESTIMONY OF
THE UNDER SECRETARY OF COMMERCE TO RACIAL SEGREGATION.  SEE HEARINGS
BEFORE THE SENATE COMMITTEE ON COMMERCE ON S. 1732, 88TH CONG., 1ST
SESS., 695.  THIS DIMINUTIVE SPENDING SPRINGING FROM A REFUSAL TO SERVE
NEGROES AND THEIR TOTAL LOSS AS CUSTOMERS HAS, REGARDLESS OF THE
ABSENCE OF DIRECT EVIDENCE, A CLOSE CONNECTION TO INTERSTATE COMMERCE. 
THE FEWER CUSTOMERS A RESTAURANT ENJOYS THE LESS FOOD IT SELLS AND
CONSEQUENTLY THE LESS IT BUYS.  S. REP.  NO. 872, 88TH CONG., 2D SESS.,
AT 19; SENATE COMMERCE COMMITTEE HEARINGS, AT 207.  IN ADDITION, THE
ATTORNEY GENERAL TESTIFIED THAT THIS TYPE OF DISCRIMINATION IMPOSED "AN
ARTIFICIAL RESTRICTION ON THE MARKET" AND INTERFERED WITH THE FLOW OF
MERCHANDISE.  ID., AT 18-19; ALSO, ON THIS POINT, SEE TESTIMONY OF
SENATOR MAGNUSON, 110 CONG. REC. 7402-7403.  IN ADDITION, THERE WERE
MANY REFERENCES TO DISCRIMINATORY SITUATIONS CAUSING WIDE UNREST AND
HAVING A DEPRESSANT EFFECT ON GENERAL BUSINESS CONDITIONS IN THE
RESPECTIVE COMMUNITIES.  SEE, E.G., SENATE COMMERCE COMMITTEE HEARINGS,
AT 623-630, 695-700, 1384-1385. 

MOREOVER, THERE WAS AN IMPRESSIVE ARRAY OF TESTIMONY THAT
DISCRIMINATION IN RESTAURANTS HAD A DIRECT AND HIGHLY RESTRICTIVE
EFFECT UPON INTERSTATE TRAVEL BY NEGROES.  THIS RESULTED, IT WAS SAID,
BECAUSE DISCRIMINATORY PRACTICES PREVENT NEGROES FROM BUYING PREPARED
FOOD SERVED ON THE PREMISES WHILE ON A TRIP, EXCEPT IN ISOLATED AND
UNKEMPT RESTAURANTS AND UNDER MOST UNSATISFACTORY AND OFTEN UNPLEASANT
CONDITIONS.  THIS OBVIOUSLY DISCOURAGES TRAVEL AND OBSTRUCTS INTERSTATE
COMMERCE FOR ONE CAN HARDLY TRAVEL WITHOUT EATING.  LIKEWISE, IT WAS
SAID, THAT DISCRIMINATION DETERRED PROFESSIONAL, AS WELL AS SKILLED,
PEOPLE FROM MOVING INTO AREAS WHERE SUCH PRACTICES OCCURRED AND THEREBY
CAUSED INDUSTRY TO BE RELUCTANT TO ESTABLISH THERE.  S. REP. NO. 872,
SUPRA, AT 18-19. 

WE BELIEVE THAT THIS TESTIMONY AFFORDED AMPLE BASIS FOR THE
CONCLUSION THAT ESTABLISHED RESTAURANTS IN SUCH AREAS SOLD LESS
INTERSTATE GOODS BECAUSE OF THE DISCRIMINATION, THAT INTERSTATE TRAVEL
WAS OBSTRUCTED DIRECTLY BY IT, THAT BUSINESS IN GENERAL SUFFERED AND
THAT MANY NEW BUSINESSES REFRAINED FROM ESTABLISHING THERE AS A RESULT
OF IT.  HENCE THE DISTRICT COURT WAS IN ERROR IN CONCLUDING THAT THERE
WAS NO CONNECTION BETWEEN DISCRIMINATION AND THE MOVEMENT OF INTERSTATE
COMMERCE.  THE COURT'S CONCLUSION THAT SUCH A CONNECTION IS OUTSIDE
"COMMON EXPERIENCE" FLIES IN THE FACE OF STUBBORN FACT. 

IT GOES WITHOUT SAYING THAT, VIEWED IN ISOLATION, THE VOLUME OF FOOD
PURCHASED BY OLLIE'S BARBECUE FROM SOURCES SUPPLIED FROM OUT OF STATE
WAS INSIGNIFICANT WHEN COMPARED WITH THE TOTAL FOODSTUFFS MOVING IN
COMMERCE.  BUT, AS OUR LATE BROTHER JACKSON SAID FOR THE COURT IN
WICKARD V. FILBURN, 317 U.S. 111 (1942): 

"THAT APPELLEE'S OWN CONTRIBUTION TO THE DEMAND FOR WHEAT MAY BE
TRIVIAL BY ITSELF IS NOT ENOUGH TO REMOVE HIM FROM THE SCOPE OF FEDERAL
REGULATION WHERE, AS HERE, HIS CONTRIBUTION, TAKEN TOGETHER WITH THAT
OF MANY OTHERS SIMILARLY SITUATED, IS FAR FROM TRIVIAL."  AT 127-128. 

WE NOTED IN HEART OF ATLANTA MOTEL THAT A NUMBER OF WITNESSES
ATTESTED TO THE FACT THAT RACIAL DISCRIMINATION WAS NOT MERELY A STATE
OR REGIONAL PROBLEM BUT WAS ONE OF NATIONWIDE SCOPE.  AGAINST THIS
BACKGROUND, WE MUST CONCLUDE THAT WHILE THE FOCUS OF THE LEGISLATION
WAS ON THE INDIVIDUAL RESTAURANT'S RELATION TO INTERSTATE COMMERCE,
CONGRESS APPROPRIATELY CONSIDERED THE IMPORTANCE OF THAT CONNECTION
WITH THE KNOWLEDGE THAT THE DISCRIMINATION WAS BUT "REPRESENTATIVE OF
MANY OTHERS THROUGHOUT THE COUNTRY, THE TOTAL INCIDENCE OF WHICH IF
LEFT UNCHECKED MAY WELL BECOME FAR-REACHING IN ITS HARM TO COMMERCE." 
POLISH ALLIANCE V. LABOR BOARD, 322 U.S. 643, 648 (1944). 

WITH THIS SITUATION SPREADING AS THE RECORD SHOWS, CONGRESS WAS NOT
REQUIRED TO AWAIT THE TOTAL DISLOCATION OF COMMERCE.  AS WAS SAID IN
CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197 (1938): 

"BUT IT CANNOT BE MAINTAINED THAT THE EXERTION OF FEDERAL POWER MUST
AWAIT THE DISRUPTION OF THAT COMMERCE.  CONGRESS WAS ENTITLED TO
PROVIDE REASONABLE PREVENTIVE MEASURES AND THAT WAS THE OBJECT OF THE
NATIONAL LABOR RELATIONS ACT."  AT 222. 

5.  THE POWER OF CONGRESS TO REGULATE LOCAL ACTIVITIES. 

ARTICLE I, SEC. 8, CL. 3, CONFERS UPON CONGRESS THE POWER "TO
REGULATE COMMERCE ...  AMONG THE SEVERAL STATES" AND CLAUSE 18 OF THE
SAME ARTICLE GRANTS IT THE POWER "TO MAKE ALL LAWS WHICH SHALL BE
NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS
...  ."  THIS GRANT, AS WE HAVE POINTED OUT IN HEART OF ATLANTA MOTEL
"EXTENDS TO THOSE ACTIVITIES INTRASTATE WHICH SO AFFECT INTERSTATE
COMMERCE, OR THE EXERTION OF THE POWER OF CONGRESS OVER IT, AS TO MAKE
REGULATION OF THEM APPROPRIATE MEANS TO THE ATTAINMENT OF A LEGITIMATE
END, THE EFFECTIVE EXECUTION OF THE GRANTED POWER TO REGULATE
INTERSTATE COMMERCE."  UNITED STATES V. WRIGHTWOOD DAIRY CO., 315 U.S.
110, 119 (1942).  MUCH IS SAID ABOUT A RESTAURANT BUSINESS BEING LOCAL
BUT "EVEN IF APPELLEE'S ACTIVITY BE LOCAL AND THOUGH IT MAY NOT BE
REGARDED AS COMMERCE, IT MAY STILL, WHATEVER ITS NATURE, BE REACHED BY
CONGRESS IF IT EXERTS A SUBSTANTIAL ECONOMIC EFFECT ON INTERSTATE
COMMERCE  ...  ."  WICKARD V. FILBURN, SUPRA, AT 125.  THE ACTIVITIES
THAT ARE BEYOND THE REACH OF CONGRESS ARE "THOSE WHICH ARE COMPLETELY
WITHIN A PARTICULAR STATE, WHICH DO NOT AFFECT OTHER STATES, AND WITH
WHICH IT IS NOT NECESSARY TO INTERFERE, FOR THE PURPOSE OF EXECUTING
SOME OF THE GENERAL POWERS OF THE GOVERNMENT."  GIBBONS V. OGDEN, 9
WHEAT.  1, 195 (1824).  THIS RULE IS AS GOOD TODAY AS IT WAS WHEN CHIEF
JUSTICE MARSHALL LAID IT DOWN ALMOST A CENTURY AND A HALF AGO. 

THIS COURT HAS HELD TIME AND AGAIN THAT THIS POWER EXTENDS TO
ACTIVITIES OF RETAIL ESTABLISHMENTS, INCLUDING RESTAURANTS, WHICH
DIRECTLY OR INDIRECTLY BURDEN OR OBSTRUCT INTERSTATE COMMERCE.  WE HAVE
DETAILED THE CASES IN HEART OF ATLANTA MOTEL, AND WILL NOT REPEAT THEM
HERE. 

NOR ARE THE CASES HOLDING THAT INTERSTATE COMMERCE ENDS WHEN GOODS
COME TO REST IN THE STATE OF DESTINATION APPOSITE HERE.  THAT LINE OF
CASES HAS BEEN APPLIED WITH REFERENCE TO STATE TAXATION OR REGULATION
BUT NOT IN THE FIELD OF FEDERAL REGULATION. 

THE APPELLEES CONTEND THAT CONGRESS HAS ARBITRARILY CREATED A
CONCLUSIVE PRESUMPTION THAT ALL RESTAURANTS MEETING THE CRITERIA SET
OUT IN THE ACT "AFFECT COMMERCE."  STATED ANOTHER WAY, THEY OBJECT TO
THE OMISSION OF A PROVISION FOR A CASE-BY-CASE DETERMINATION - JUDICIAL
OR ADMINISTRATIVE - THAT RACIAL DISCRIMINATION IN A PARTICULAR
RESTAURANT AFFECTS COMMERCE. 

BUT CONGRESS' ACTION IN FRAMING THIS ACT WAS NOT UNPRECEDENTED.  IN
UNITED STATES V. DARBY, 312 U.S. 100 (1941), THIS COURT HELD
CONSTITUTIONAL THE FAIR LABOR STANDARDS ACT OF 1938.  (FN2)  THERE
CONGRESS DETERMINED THAT THE PAYMENT OF SUBSTANDARD WAGES TO EMPLOYEES
ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE, WHILE NOT ITSELF
COMMERCE, SO INHIBITED IT AS TO BE SUBJECT TO FEDERAL REGULATION.  THE
APPELLEES IN THAT CASE ARGUED, AS DO THE APPELLEES HERE, THAT THE ACT
WAS INVALID BECAUSE IT INCLUDED NO PROVISION FOR AN INDEPENDENT INQUIRY
REGARDING THE EFFECT ON COMMERCE OF SUBSTANDARD WAGES IN A PARTICULAR
BUSINESS.  (BRIEF FOR APPELLEES, PP. 76-77, UNITED STATES V. DARBY, 312
U.S. 100).  BUT THE COURT REJECTED THE ARGUMENT, OBSERVING THAT: 

"SOMETIMES CONGRESS ITSELF HAS SAID THAT A PARTICULAR ACTIVITY
AFFECTS THE COMMERCE, AS IT DID IN THE PRESENT ACT, THE SAFETY
APPLIANCE ACT AND THE RAILWAY LABOR ACT.  IN PASSING ON THE VALIDITY OF
LEGISLATION OF THE CLASS LAST MENTIONED THE ONLY FUNCTION OF COURTS IS
TO DETERMINE WHETHER THE PARTICULAR ACTIVITY REGULATED OR PROHIBITED IS
WITHIN THE REACH OF THE FEDERAL POWER."  AT 120-121. 

HERE, AS THERE, CONGRESS HAS DETERMINED FOR ITSELF THAT REFUSALS OF
SERVICE TO NEGROES HAVE IMPOSED BURDENS BOTH UPON THE INTERSTATE FLOW
OF FOOD AND UPON THE MOVEMENT OF PRODUCTS GENERALLY.  OF COURSE, THE
MERE FACT THAT CONGRESS HAS SAID WHEN PARTICULAR ACTIVITY SHALL BE
DEEMED TO AFFECT COMMERCE DOES NOT PRECLUDE FURTHER EXAMINATION BY THIS
COURT.  BUT WHERE WE FIND THAT THE LEGISLATORS, IN LIGHT OF THE FACTS
AND TESTIMONY BEFORE THEM, HAVE A RATIONAL BASIS FOR FINDING A CHOSEN
REGULATORY SCHEME NECESSARY TO THE PROTECTION OF COMMERCE, OUR
INVESTIGATION IS AT AN END.  THE ONLY REMAINING QUESTION - ONE ANSWERED
IN THE AFFIRMATIVE BY THE COURT BELOW - IS WHETHER THE PARTICULAR
RESTAURANT EITHER SERVES OR OFFERS TO SERVE INTERSTATE TRAVELERS OR
SERVES FOOD A SUBSTANTIAL PORTION OF WHICH HAS MOVED IN INTERSTATE
COMMERCE. 

THE APPELLEES URGE THAT CONGRESS, IN PASSING THE FAIR LABOR STANDARDS
ACT AND THE NATIONAL LABOR RELATIONS ACT, (FN3) MADE SPECIFIC FINDINGS
WHICH WERE EMBODIED IN THOSE STATUTES.  HERE, OF COURSE, CONGRESS HAS
INCLUDED NO FORMAL FINDINGS.  BUT THEIR ABSENCE IS NOT FATAL TO THE
VALIDITY OF THE STATUTE, SEE UNITED STATES V. CAROLENE PRODUCTS CO.,
304 U.S. 144, 152 (1938), FOR THE EVIDENCE PRESENTED AT THE HEARINGS
FULLY INDICATED THE NATURE AND EFFECT OF THE BURDENS ON COMMERCE WHICH
CONGRESS MEANT TO ALLEVIATE. 

CONFRONTED AS WE ARE WITH THE FACTS LAID BEFORE CONGRESS, WE MUST
CONCLUDE THAT IT HAD A RATIONAL BASIS FOR FINDING THAT RACIAL
DISCRIMINATION IN RESTAURANTS HAD A DIRECT AND ADVERSE EFFECT ON THE
FREE FLOW OF INTERSTATE COMMERCE.  INSOFAR AS THE SECTIONS OF THE ACT
HERE RELEVANT ARE CONCERNED, SECS. 201(B)(2) AND (C), CONGRESS
PROHIBITED DISCRIMINATION ONLY IN THOSE ESTABLISHMENTS HAVING A CLOSE
TIE TO INTERSTATE COMMERCE, I.E., THOSE, LIKE THE MCCLUNGS', SERVING
FOOD THAT HAS COME FROM OUT OF THE STATE.  WE THINK IN SO DOING THAT
CONGRESS ACTED WELL WITHIN ITS POWER TO PROTECT AND FOSTER COMMERCE IN
EXTENDING THE COVERAGE OF TITLE II ONLY TO THOSE RESTAURANTS OFFERING
TO SERVE INTERSTATE TRAVELERS OR SERVING FOOD, A SUBSTANTIAL PORTION OF
WHICH HAS MOVED IN INTERSTATE COMMERCE. 

THE ABSENCE OF DIRECT EVIDENCE CONNECTING DISCRIMINATORY RESTAURANT
SERVICE WITH THE FLOW OF INTERSTATE FOOD, A FACTOR ON WHICH THE
APPELLEES PLACE MUCH RELIANCE, IS NOT, GIVEN THE EVIDENCE AS TO THE
EFFECT OF SUCH PRACTICES ON OTHER ASPECTS OF COMMERCE, A CRUCIAL
MATTER. 

THE POWER OF CONGRESS IN THIS FIELD IS BROAD AND SWEEPING; WHERE IT
KEEPS WITHIN ITS SPHERE AND VIOLATES NO EXPRESS CONSTITUTIONAL
LIMITATION IT HAS BEEN THE RULE OF THIS COURT, GOING BACK ALMOST TO THE
FOUNDING DAYS OF THE REPUBLIC, NOT TO INTERFERE.  THE CIVIL RIGHTS ACT
OF 1964, AS HERE APPLIED, WE FIND TO BE PLAINLY APPROPRIATE IN THE
RESOLUTION OF WHAT THE CONGRESS FOUND TO BE A NATIONAL COMMERCIAL
PROBLEM OF THE FIRST MAGNITUDE.  WE FIND IT IN NO VIOLATION OF ANY
EXPRESS LIMITATIONS OF THE CONSTITUTION AND WE THEREFORE DECLARE IT
VALID. 

THE JUDGMENT IS THEREFORE REVERSED. 

FN1  THAT DECISION DISPOSES OF THE CHALLENGES THAT THE APPELLEES BASE
ON THE FIFTH, NINTH, TENTH, AND THIRTEENTH AMENDMENTS, AND ON THE CIVIL
RIGHTS CASES, 109 U.S. 3 (1883). 

FN2  52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. (1958 ED.). 

FN3  49 STAT. 449, AS AMENDED, 29 U.S.C. SEC. 151 ET SEQ. (1958
ED.). 

FOR CONCURRING OPINION OF MR. JUSTICE BLACK, SEE ANTE, P. 268. 

FOR CONCURRING OPINION OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 279. 

FOR CONCURRING OPINION OF MR. JUSTICE GOLDBERG, SEE ANTE, P. 291. 
..END :







HAMM V. ROCK HILL 379 U.S. 306 


NO. 2.  ARGUED OCTOBER 12, 1964 - DECIDED DECEMBER 14, 1964* - 241 S.C.
420, 128 S.E.2D 907; 236 ARK. 596, 367 S.W.2D 750, JUDGMENTS VACATED
AND CHARGES ORDERED DISMISSED. 

*TOGETHER WITH NO. 5, LUPPER ET AL. V. ARKANSAS, ON CERTIORARI TO THE
SUPREME COURT OF ARKANSAS. 


THE PETITIONERS, WHO ARE NEGROES, WERE CONVICTED FOR VIOLATIONS OF
STATE TRESPASS STATUTES FOR PARTICIPATING IN "SIT-INS" AT LUNCH
COUNTERS OF RETAIL STORES.  IT WAS CONCEDED THAT THE LUNCH-COUNTER
OPERATIONS WOULD PROBABLY COME WITHIN THE COVERAGE OF THE CIVIL RIGHTS
ACT OF 1964, WHICH WAS PASSED SUBSEQUENT TO THE CONVICTIONS AND THE
AFFIRMANCES THEREOF IN THE STATE COURTS.  HELD: 

1.  THE ACT CREATES FEDERAL STATUTORY RIGHTS WHICH UNDER THE
SUPREMACY CLAUSE MUST PREVAIL OVER ANY CONFLICTING STATE LAWS.  PP. 310
312. 

2.  THESE CONVICTIONS, BEING ON DIRECT REVIEW AT THE TIME THE ACT
MADE THE CONDUCT NO LONGER UNLAWFUL, MUST ABATE.  PP. 312-317. 

(A)  HAD THESE BEEN FEDERAL CONVICTIONS THEY WOULD HAVE ABATED,
CONGRESS PRESUMABLY HAVING INTENDED TO AVOID PUNISHMENT NO LONGER
FURTHERING A LEGISLATIVE PURPOSE, AND THE GENERAL FEDERAL SAVING
STATUTE BEING INAPPLICABLE TO A STATUTE LIKE THIS WHICH SUBSTITUTES A
RIGHT FOR WHAT WAS PREVIOUSLY CRIMINAL.  PP. 312-314. 

(B)  THOUGH THESE WERE STATE CONVICTIONS THEIR ABATEMENT IS LIKEWISE
REQUIRED NOT ONLY UNDER THE SUPREMACY CLAUSE AND BECAUSE THE PENDING
CONVICTIONS ARE CONTRARY TO THE LEGISLATIVE PURPOSE OF THE ACT BUT ALSO
BECAUSE ABATEMENT IS A NECESSARY PART OF EVERY STATUTE WHICH REPEALS
CRIMINAL LEGISLATION.  PP. 314-317. 

HAMM V. CITY OF ROCK HILL. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE ARE "SIT-IN" CASES THAT CAME HERE FROM THE HIGHEST COURTS OF
SOUTH CAROLINA AND ARKANSAS, RESPECTIVELY.  EACH OF THOSE COURTS
AFFIRMED CONVICTIONS BASED UPON STATE TRESPASS STATUTES AGAINST
PETITIONERS, WHO ARE NEGROES, FOR PARTICIPATING IN "SIT-IN"
DEMONSTRATIONS IN THE LUNCHEON FACILITIES OF RETAIL STORES IN THEIR
RESPECTIVE STATES.  WE GRANTED CERTIORARI IN EACH OF THE CASES, 377
U.S. 988, 989, AND CONSOLIDATED THEM FOR ARGUMENT.  THE PETITIONERS
ASSERTED BOTH IN THE STATE COURTS AND HERE THE DENIAL OF RIGHTS,
PRIVILEGES, AND IMMUNITIES SECURED BY THE FOURTEENTH AMENDMENT; IN
ADDITION, THEY CLAIM HERE THAT THE CIVIL RIGHTS ACT OF 1964, 78 STAT.
241, PASSED SUBSEQUENT TO THEIR CONVICTIONS AND THE AFFIRMANCES THEREOF
IN THE STATE COURTS, ABATED THESE ACTIONS. 

1.  THE FACTS. 

IN NO. 2, HAMM V. ROCK HILL, THE PETITIONER, AND A COMPANION WHO IS
NOW DECEASED, ENTERED MCCRORY'S VARIETY STORE AT ROCK HILL, SOUTH
CAROLINA.  AFTER MAKING PURCHASES IN OTHER PARTS OF THE STORE, THEY
PROCEEDED TO THE LUNCH COUNTER AND SOUGHT SERVICE.  IT WAS REFUSED. 
THE MANAGER ASKED THE PETITIONER AND HIS ASSOCIATE TO LEAVE AND WHEN
THEY REFUSED HE CALLED THE POLICE.  THEY WERE PROSECUTED AND CONVICTED
UNDER SEC. 16-388 OF THE S.C. CODE OF LAWS, MAKING IT AN OFFENSE FOR
ANYONE TO ENTER A PLACE OF BUSINESS AFTER HAVING BEEN WARNED NOT TO DO
SO OR TO REFUSE TO LEAVE IMMEDIATELY AFTER HAVING ENTERED THEREIN. 
PETITIONER'S COMPANION DIED SUBSEQUENTLY.  THE CONVICTION OF PETITIONER
WAS AFFIRMED BY BOTH THE COURT OF GENERAL SESSIONS AND THE SUPREME
COURT OF SOUTH CAROLINA, 241 S.C. 420, 128 S.E.2D 907 (1962). 

LUPPER V. ARKANSAS, NO. 5, INVOLVES A GROUP OF NEGROES WHO ENTERED
THE DEPARTMENT STORE OF GUS BLASS COMPANY IN LITTLE ROCK.  THE GROUP
WENT TO THE MEZZANINE TEAROOM OF THE STORE AT THE BUSY LUNCHEON HOUR,
SEATED THEMSELVES AND REQUESTED SERVICE WHICH WAS REFUSED.  WITHIN A
FEW MINUTES THE GROUP, INCLUDING PETITIONERS, WAS ADVISED THAT BLASS
RESERVED THE RIGHT TO REFUSE SERVICE TO ANYONE AND WAS NOT PREPARED TO
SERVE THEM AT THAT TIME.  UPON BEING REQUESTED TO LEAVE, THE
PETITIONERS REFUSED.  THE POLICE OFFICERS WHO WERE SUMMONED LOCATED
PETITIONERS ON THE FIRST FLOOR OF THE STORE AND ARRESTED THEM.  THE
OFFICERS' TESTIMONY THAT PETITIONERS ADMITTED THE WHOLE AFFAIR WAS
DENIED.  THE PROSECUTIONS IN THE LITTLE ROCK MUNICIPAL COURT RESULTED
IN CONVICTIONS OF PETITIONERS BASED UPON SEC. 41-1433, ARK. STAT. ANN.
(1964 REPL.  VOL.), WHICH PROHIBITS A PERSON FROM REMAINING ON THE
PREMISES OF A BUSINESS ESTABLISHMENT AFTER HAVING BEEN REQUESTED TO
LEAVE BY THE OWNER OR MANAGER THEREOF.  ON APPEAL TO THE PULASKI
CIRCUIT COURT, A TRIAL DE NOVO RESULTED IN VERDICTS OF GUILTY AND THE
ARKANSAS SUPREME COURT AFFIRMED, 236 ARK. 596, 367 S.W.2D 750 (1963),
SUB NOM. BRIGGS V. STATE. 

WE HOLD THAT THE CONVICTIONS MUST BE VACATED AND THE PROSECUTIONS
DISMISSED.  THE CIVIL RIGHTS ACT OF 1964 FORBIDS DISCRIMINATION IN
PLACES OF PUBLIC ACCOMMODATION AND REMOVES PEACEFUL ATTEMPTS TO BE
SERVED ON AN EQUAL BASIS FROM THE CATEGORY OF PUNISHABLE ACTIVITIES. 
ALTHOUGH THE CONDUCT IN THE PRESENT CASES OCCURRED PRIOR TO ENACTMENT
OF THE ACT, THE STILL-PENDING CONVICTIONS ARE ABATED BY ITS PASSAGE. 

2.  APPLICATION OF TITLE II OF THE CIVIL RIGHTS ACT OF 1964 TO THE
FACTS HERE. 

WE TREAT THESE CASES AS INVOLVING PLACES OF PUBLIC ACCOMMODATION
COVERED BY THE CIVIL RIGHTS ACT OF 1964.  UNDER THAT STATUTE, A PLACE
OF PUBLIC ACCOMMODATION IS DEFINED TO INCLUDE ONE WHICH SERVES OR
OFFERS TO SERVE INTERSTATE TRAVELERS.  APPLYING THE RULES OF SECS.
201(B)(2), (C) (FN1) WE FIND THAT EACH OF THEM OFFERS TO SERVE
INTERSTATE TRAVELERS.  IN HAMM IT IS NOT DENIED THAT THE LUNCH COUNTER
WAS IN A MCCRORY'S 5-AND-10-CENT STORE, A LARGE VARIETY STORE AT ROCK
HILL BELONGING TO A NATIONAL CHAIN, WHICH OFFERS TO SELL THOUSANDS OF
ITEMS TO THE PUBLIC; THAT IT INVITES ALL MEMBERS OF THE PUBLIC INTO ITS
PREMISES TO DO BUSINESS AND OFFERS TO SERVE ALL PERSONS, EXCEPT AT ITS
LUNCH COUNTER WHICH IS RESTRICTED TO WHITE PERSONS ONLY.  THERE IS NO
CONTENTION HERE THAT IT DOES NOT COME WITHIN THE ACT.  LIKEWISE IN
LUPPER THE LUNCH COUNTER AREA, CALLED A TEAROOM, IS LOCATED WITHIN AND
OPERATED BY THE GUS BLASS COMPANY'S DEPARTMENT STORE AT LITTLE ROCK. 
IT IS A LARGE DEPARTMENT STORE DEALING EXTENSIVELY IN INTERSTATE
COMMERCE.  IT APPEARS FROM THE RECORD THAT IT ALSO OFFERED TO SERVE ALL
PERSONS COMING INTO ITS STORE BUT LIMITED ITS LUNCH COUNTER SERVICE TO
WHITE PERSONS.  ON ARGUMENT IT WAS FRANKLY ADMITTED THAT THE LUNCH
COUNTER OPERATION "PROBABLY WOULD" COME UNDER THE ACT.  FINALLY,
NEITHER RESPONDENT ASKS FOR A REMAND TO DETERMINE THE FACTS AS TO
COVERAGE OF THE RESPECTIVE LUNCH COUNTERS.  (FN2)  IN THE LIGHT OF SUCH
A RECORD AND THE LEGISLATIVE HISTORY INDICATING THAT CONGRESS INTENDED
TO COVER RETAIL STORE LUNCH COUNTERS, SEE 110 CONG. REC. 1519-1520, WE
HOLD THAT THE ACT COVERS BOTH THE MCCRORY AND THE BLASS LUNCH COUNTER
OPERATIONS. 

3.  THE PROVISIONS OF THE ACT. 

UNDER THE CIVIL RIGHTS ACT, PETITIONERS' CONDUCT COULD NOT BE THE
SUBJECT OF TRESPASS PROSECUTIONS, FEDERAL OR STATE, IF IT HAD OCCURRED
AFTER THE ENACTMENT OF THE STATUTE. 

TITLE II INCLUDES SEVERAL SECTIONS, SOME OF WHICH ARE RELEVANT HERE,
THAT CREATE FEDERAL STATUTORY RIGHTS.  (FN3)  THE FIRST IS SEC. 201(A)
DECLARING THAT "ALL PERSONS SHALL BE ENTITLED TO THE FULL AND EQUAL
ENJOYMENT OF THE GOODS, SERVICES, FACILITIES, PRIVILEGES, ADVANTAGES,
AND ACCOMMODATIONS OF ANY PLACE OF PUBLIC ACCOMMODATION," WHICH AS WE
HAVE FOUND INCLUDES THE ESTABLISHMENTS HERE INVOLVED.  NEXT, SEC. 203
PROVIDES: 

"NO PERSON SHALL (A) WITHHOLD, DENY, OR ATTEMPT TO WITHHOLD OR DENY,
OR DEPRIVE OR ATTEMPT TO DEPRIVE, ANY PERSON OF ANY RIGHT OR PRIVILEGE
SECURED BY SECTION 201 OR 202, OR (B) INTIMIDATE, THREATEN, OR COERCE,
OR ATTEMPT TO INTIMIDATE, THREATEN, OR COERCE ANY PERSON WITH THE
PURPOSE OF INTERFERING WITH ANY RIGHT OR PRIVILEGE SECURED BY SECTION
201 OR 202, OR (C) PUNISH OR ATTEMPT TO PUNISH ANY PERSON FOR
EXERCISING OR ATTEMPTING TO EXERCISE ANY RIGHT OR PRIVILEGE SECURED BY

ON ITS FACE, THIS LANGUAGE PROHIBITS PROSECUTION OF ANY PERSON FOR
SEEKING SERVICE IN A COVERED ESTABLISHMENT, BECAUSE OF HIS RACE OR
COLOR.  IT HAS BEEN ARGUED, HOWEVER, THAT VICTIMS OF DISCRIMINATION
MUST MAKE USE OF THE EXCLUSIVE STATUTORY MECHANISMS FOR THE REDRESS OF
GRIEVANCES, AND NOT RESORT TO EXTRALEGAL MEANS.  ALTHOUGH WE AGREE THAT
THE LAW GENERALLY CONDEMNS SELF-HELP, THE LANGUAGE OF SEC. 203(C)
SUPPORTS A CONCLUSION THAT NONFORCIBLE ATTEMPTS TO GAIN ADMITTANCE TO
OR REMAIN IN ESTABLISHMENTS COVERED BY THE ACT, ARE IMMUNIZED FROM
PROSECUTION, FOR THE STATUTE SPEAKS OF EXERCISING OR ATTEMPTING TO
EXERCISE A "RIGHT OR PRIVILEGE" SECURED BY ITS EARLIER PROVISIONS.  THE
AVAILABILITY OF THE ACT AS A DEFENSE AGAINST PUNISHMENT IS NOT LIMITED
SOLELY TO THOSE WHO PURSUE THE STATUTORY REMEDIES.  THE LEGISLATIVE
HISTORY SPECIFICALLY NOTES THAT THE ACT WOULD BE A DEFENSE TO CRIMINAL
TRESPASS, BREACH OF THE PEACE AND SIMILAR PROSECUTIONS.  SENATOR
HUMPHREY, FLOOR MANAGER OF THE BILL IN THE SENATE, SAID IN EXPLAINING
THE BILL: 

"THIS PLAINLY MEANS THAT A DEFENDANT IN A CRIMINAL TRESPASS, BREACH
OF THE PEACE, OR OTHER SIMILAR CASE CAN ASSERT THE RIGHTS CREATED BY
201 AND 202 AND THAT STATE COURTS MUST ENTERTAIN DEFENSES GROUNDED UPON
THESE PROVISIONS  ...  ."  110 CONG.  REC. 9767. 

IN EFFECT THE ACT PROHIBITS THE APPLICATION OF STATE LAWS IN A WAY
THAT WOULD DEPRIVE ANY PERSON OF THE RIGHTS GRANTED UNDER THE ACT.  THE
SUPREMACY CLAUSE, ART. VI, CL. 2, REQUIRES THIS RESULT WHERE "THERE IS
A CLEAR COLLISION" BETWEEN STATE AND FEDERAL LAW, KESLER V. DEPARTMENT
OF SAFETY, 369 U.S. 153, 172 (1962), OR A CONFLICT BETWEEN FEDERAL LAW
AND THE APPLICATION OF AN OTHERWISE VALID STATE ENACTMENT, HILL V.
FLORIDA, 325 U.S. 538 (1945).  THERE CAN BE NO QUESTION THAT THIS WAS
THE INTENDED RESULT HERE IN LIGHT OF SEC. 203(C).  THE PRESENT
CONVICTIONS AND THE COMMAND OF THE CIVIL RIGHTS ACT OF 1964 ARE CLEARLY
IN DIRECT CONFLICT.  THE ONLY REMAINING QUESTION IS THE EFFECT OF THE
ACT ON JUDGMENTS RENDERED, BUT NOT FINALIZED, BEFORE ITS PASSAGE. 

4.  EFFECT OF THE ACT UPON THE PROSECUTIONS. 

LAST TERM, IN BELL V. MARYLAND, 378 U.S. 226, WE NOTED THE EXISTENCE
OF A BODY OF FEDERAL AND STATE LAW TO THE EFFECT THAT CONVICTIONS ON
DIRECT REVIEW AT THE TIME THE CONDUCT IN QUESTION IS RENDERED NO LONGER
UNLAWFUL BY STATUTE, MUST ABATE.  WE CONSIDER FIRST THE EFFECT THE
CIVIL RIGHTS ACT WOULD HAVE ON PETITIONERS' CONVICTIONS IF THEY HAD
BEEN FEDERAL CONVICTIONS, AND THEN THE IMPORT OF THE FACT THAT THESE
ARE STATE AND NOT FEDERAL CONVICTIONS.  WE THINK IT IS CLEAR THAT THE
CONVICTIONS, IF FEDERAL, WOULD ABATE. 

THE DOCTRINE FOUND ITS EARLIEST EXPRESSION IN CHIEF JUSTICE
MARSHALL'S OPINION IN UNITED STATES V. SCHOONER PEGGY, 1 CRANCH 103,
110 (1801):

"BUT IF SUBSEQUENT TO THE JUDGMENT AND BEFORE THE DECISION OF THE
APPELLATE COURT, A LAW INTERVENES AND POSITIVELY CHANGES THE RULE WHICH
GOVERNS, THE LAW MUST BE OBEYED, OR ITS OBLIGATION DENIED.  IF THE LAW
BE CONSTITUTIONAL  ...  I KNOW OF NO COURT WHICH CAN CONTEST ITS
OBLIGATION.  IT IS TRUE THAT IN MERE PRIVATE CASES BETWEEN INDIVIDUALS,
A COURT WILL AND OUGHT TO STRUGGLE HARD AGAINST A CONSTRUCTION WHICH
WILL, BY A RETROSPECTIVE OPERATION, AFFECT THE RIGHTS OF PARTIES, BUT
IN GREAT NATIONAL CONCERNS ...  THE LAW OUGHT ALWAYS TO RECEIVE A
CONSTRUCTION CONFORMING TO ITS MANIFEST IMPORT  ...  .  IN SUCH A CASE
THE COURT MUST DECIDE ACCORDING TO EXISTING LAWS, AND IF IT BE
NECESSARY TO SET ASIDE A JUDGMENT, RIGHTFUL WHEN RENDERED, BUT WHICH
CANNOT BE AFFIRMED BUT IN VIOLATION OF LAW, THE JUDGMENT MUST BE SET
ASIDE." 

ALTHOUGH THE DECISION IN THAT CASE ARGUABLY RESTED ON THE PREMISE
THAT APPEALS IN ADMIRALTY WERE TRIALS DE NOVO, AND THAT PRIZE
LITIGATION APPLIED THE LAW OF THE TIME OF TRIAL, SEE YEATON V. UNITED
STATES, 5 CRANCH 281, 283 (1809); MARYLAND V. BALTIMORE & O.R. CO., 3
HOW.  534, 552 (1845); UNITED STATES V. TYNEN, 11 WALL.  88, 95 (1871);
UNITED STATES V. REISINGER, 128 U.S. 398, 401 (1888); UNITED STATES V.
CHAMBERS, 291 U.S. 217, 222-223 (1934); MASSEY V. UNITED STATES, 291
U.S. 608 (1934), THE LATER CASES APPLIED THE RULE IN QUITE DIFFERENT
CONTEXTS, SEE UNITED STATES V. TYNEN, SUPRA; UNITED STATES V.
REISINGER, SUPRA.  THE REASON FOR THE RULE WAS STATED BY CHIEF JUSTICE
HUGHES, IN UNITED STATES V. CHAMBERS:  "PROSECUTION FOR CRIMES IS BUT
AN APPLICATION OR ENFORCEMENT OF THE LAW, AND IF THE PROSECUTION
CONTINUES THE LAW MUST CONTINUE TO VIVIFY IT."  291 U.S. 217, AT 226. 
ALTHOUGH CHAMBERS SPECIFICALLY LEFT OPEN THE QUESTION OF THE EFFECT OF
ITS RULE ON CASES WHERE FINAL JUDGMENT WAS RENDERED PRIOR TO
RATIFICATION OF THE TWENTY-FIRST AMENDMENT, AND PETITION FOR CERTIORARI
SOUGHT THEREAFTER, SUCH AN EXTENSION OF THE RULE WAS TAKEN FOR GRANTED
IN THE PER CURIAM DECISION IN MASSEY V. UNITED STATES, SUPRA, HANDED
DOWN SHORTLY AFTER CHAMBERS. 

IT IS APPARENT THAT THE RULE EXEMPLIFIED BY CHAMBERS DOES NOT DEPEND
ON THE IMPUTATION OF A SPECIFIC INTENTION TO CONGRESS IN ANY PARTICULAR
STATUTE.  NONE OF THE CASES CITED DREW ON ANY REFERENCE TO THE PROBLEM
IN THE LEGISLATIVE HISTORY OR THE LANGUAGE OF THE STATUTE.  RATHER, THE
PRINCIPLE TAKES THE MORE GENERAL FORM OF IMPUTING TO CONGRESS AN
INTENTION TO AVOID INFLICTING PUNISHMENT AT A TIME WHEN IT CAN NO
LONGER FURTHER ANY LEGISLATIVE PURPOSE, AND WOULD BE UNNECESSARILY
VINDICTIVE.  THIS GENERAL PRINCIPLE, EXPRESSED IN THE RULE, IS TO BE
READ WHEREVER APPLICABLE AS PART OF THE BACKGROUND AGAINST WHICH
CONGRESS ACTS.  THUS, WE DEEM IT IRRELEVANT THAT CONGRESS MADE NO
ALLUSION TO THE PROBLEM IN ENACTING THE CIVIL RIGHTS ACT. 

NOR DO WE BELIEVE THAT THE PROVISIONS OF THE FEDERAL SAVING STATUTE,
61 STAT. 635, 1 U.S.C. SEC. 109 (1958 ED.), WOULD NULLIFY ABATEMENT OF
A FEDERAL CONVICTION.  IN CHAMBERS, A CASE WHERE THE CAUSE FOR
PUNISHMENT WAS REMOVED BY A REPEAL OF THE CONSTITUTIONAL BASIS FOR THE
PUNITIVE STATUTE, THE COURT WAS QUITE CERTAIN AS TO THIS.  SEE 291
U.S., AT 224 AND N. 2, INVOLVING THE IDENTICAL STATUTE.  THE FEDERAL
SAVING STATUTE WAS ORIGINALLY ENACTED IN 1871, 16 STAT. 432.  IT WAS
MEANT TO OBVIATE MERE TECHNICAL ABATEMENT SUCH AS THAT ILLUSTRATED BY
THE APPLICATION OF THE RULE IN TYNEN DECIDED IN 1971.  THERE A
SUBSTITUTION OF A NEW STATUTE WITH A GREATER SCHEDULE OF PENALTIES WAS
HELD TO ABATE THE PREVIOUS PROSECUTION.  IN CONTRAST, THE CIVIL RIGHTS
ACT WORKS NO SUCH TECHNICAL ABATEMENT.  IT SUBSTITUTES A RIGHT FOR A
CRIME.  SO DRASTIC A CHANGE IS WELL BEYOND THE NARROW LANGUAGE OF
AMENDMENT AND REPEAL.  IT IS CLEAR, THEREFORE, THAT IF THE CONVICTIONS
WERE UNDER A FEDERAL STATUTE THEY WOULD BE ABATED. 

WE BELIEVE THE FACT THAT THE CONVICTIONS WERE UNDER STATE STATUTES IS
IN THESE CASES A DISTINCTION WITHOUT A DIFFERENCE.  (FN4)  WE CANNOT
BELIEVE THE CONGRESS, IN ENACTING SUCH A FAR-REACHING AND COMPREHENSIVE
SCHEME, INTENDED THE ACT TO OPERATE LESS EFFECTIVELY THAN THE RUN-OF
THE-MILL REPEALER.  SINCE THE PROVISIONS OF THE ACT WOULD ABATE ALL
FEDERAL PROSECUTIONS IT FOLLOWS THAT THE SAME RULE MUST PREVAIL UNDER
THE SUPREMACY CLAUSE WHICH REQUIRES THAT A CONTRARY STATE PRACTICE OR
STATE STATUTE MUST GIVE WAY.  HERE THE ACT INTERVENED BEFORE EITHER OF
THE JUDGMENTS UNDER ATTACK WAS FINALIZED.  JUST AS IN FEDERAL CASES
ABATEMENT MUST FOLLOW IN THESE STATE PROSECUTIONS.  RATHER THAN A
RETROACTIVE INTRUSION INTO STATE CRIMINAL LAW THIS IS BUT THE
APPLICATION OF A LONG-STANDING FEDERAL RULE, NAMELY, THAT SINCE THE
CIVIL RIGHTS ACT SUBSTITUTES A RIGHT FOR A CRIME ANY STATE STATUTE, OR
ITS APPLICATION, TO THE CONTRARY MUST BY VIRTUE OF THE SUPREMACY CLAUSE
GIVE WAY UNDER THE NORMAL ABATEMENT RULE COVERING PENDING CONVICTIONS
ARISING OUT OF A PRE-ENACTMENT ACTIVITY.  THE GREAT PURPOSE OF THE
CIVIL RIGHTS LEGISLATION WAS TO OBLITERATE THE EFFECT OF A DISTRESSING
CHAPTER OF OUR HISTORY.  THIS DEMANDS NO LESS THAN THE APPLICATION OF A
NORMAL RULE OF STATUTORY CONSTRUCTION TO STRIKE DOWN PENDING
CONVICTIONS INCONSISTENT WITH THE PURPOSES OF THE ACT. 

FAR FROM FINDING A BAR TO THE APPLICATION OF THE RULE WHERE A STATE
STATUTE IS INVOLVED, WE FIND THAT OUR CONSTRUCTION OF THE EFFECT OF THE
CIVIL RIGHTS ACT IS MORE THAN STATUTORY.  IT IS REQUIRED BY THE
SUPREMACY CLAUSE OF THE CONSTITUTION.  SEE KESLER V. DEPARTMENT OF
SAFETY, 369 U.S. 153, 172 (1962); HILL V. FLORIDA, 325 U.S. 538
(1945).  FUTURE STATE PROSECUTIONS UNDER THE ACT BEING UNCONSTITUTIONAL
AND THERE BEING NO SAVING CLAUSE IN THE ACT ITSELF, CONVICTIONS FOR PRE
ENACTMENT VIOLATIONS WOULD BE EQUALLY UNCONSTITUTIONAL AND ABATEMENT
NECESSARILY FOLLOWS. 

NOR DO WE FIND PERSUASIVE REASONS FOR IMPUTING TO THE CONGRESS AN
INTENT TO INSULATE SUCH PROSECUTIONS.  AS WE HAVE SAID, CONGRESS, AS
WELL AS THE TWO PRESIDENTS WHO RECOMMENDED THE LEGISLATION, CLEARLY
INTENDED TO ERADICATE AN UNHAPPY CHAPTER IN OUR HISTORY.  THE PEACEFUL
CONDUCT FOR WHICH PETITIONERS WERE PROSECUTED WAS ON BEHALF OF A
PRINCIPLE SINCE EMBODIED IN THE LAW OF THE LAND.  THE CONVICTIONS WERE
BASED ON THE THEORY THAT THE RIGHTS OF A PROPERTY OWNER HAD BEEN
VIOLATED.  HOWEVER, THE SUPPOSED RIGHT TO DISCRIMINATE ON THE BASIS OF
RACE, AT LEAST IN COVERED ESTABLISHMENTS, WAS NULLIFIED BY THE
STATUTE.  UNDER SUCH CIRCUMSTANCES THE ACTIONABLE NATURE OF THE ACTS IN
QUESTION MUST BE VIEWED IN THE LIGHT OF THE STATUTE AND ITS LEGISLATIVE
PURPOSE. 

WE FIND YET ANOTHER REASON FOR APPLYING THE CHAMBERS RULE OF
CONSTRUCTION.  IN OUR VIEW CONGRESS CLEARLY HAD THE POWER TO EXTEND
IMMUNITY TO PENDING PROSECUTIONS.  SOME MIGHT SAY THAT TO PERMIT THESE
CONVICTIONS TO STAND WOULD HAVE NO EFFECT ON INTERSTATE COMMERCE WHICH
WE HAVE HELD JUSTIFIED THE ADOPTION OF THE ACT.  BUT EVEN IF THIS IS
TRUE, THE PRINCIPLE OF ABATEMENT IS SO FIRMLY IMBEDDED IN OUR
JURISPRUDENCE AS TO BE A NECESSARY AND PROPER PART OF EVERY STATUTE
WORKING A REPEALER OF CRIMINAL LEGISLATION.  WHERE CONGRESS SETS OUT TO
REGULATE A SITUATION WITHIN ITS POWER, THE CONSTITUTION AFFORDS IT A
WIDE CHOICE OF REMEDIES.  THIS BEING TRUE, THE ONLY QUESTION REMAINING
IS WHETHER CONGRESS EXERCISED ITS POWER IN THE ACT TO ABATE THE
PROSECUTIONS HERE.  IF WE HELD THAT IT DID NOT WE WOULD THEN HAVE TO
PASS ON THE CONSTITUTIONAL QUESTION OF WHETHER THE FOURTEENTH
AMENDMENT, WITHOUT THE BENEFIT OF THE CIVIL RIGHTS ACT, OPERATES OF ITS
OWN FORCE TO BAR CRIMINAL TRESPASS CONVICTIONS, WHERE, AS HERE, THEY
ARE USED TO ENFORCE A PATTERN OF RACIAL DISCRIMINATION.  AS WE HAVE
NOTED, SOME OF THE JUSTICES JOINING THIS OPINION BELIEVE THAT THE
FOURTEENTH AMENDMENT DOES SO OPERATE; OTHERS ARE OF THE CONTRARY
OPINION.  SINCE THIS POINT IS NOT FREE FROM DOUBT, AND SINCE AS WE HAVE
FOUND CONGRESS HAS AMPLE POWER TO EXTEND THE STATUTE TO PENDING
CONVICTIONS WE AVOID THAT QUESTION BY FAVORING AN INTERPRETATION OF THE
STATUTE WHICH RENDERS A CONSTITUTIONAL DECISION UNNECESSARY. 

IN SHORT, NOW THAT CONGRESS HAS EXERCISED ITS CONSTITUTIONAL POWER IN
ENACTING THE CIVIL RIGHTS ACT OF 1964 AND DECLARED THAT THE PUBLIC
POLICY OF OUR COUNTRY IS TO PROHIBIT DISCRIMINATION IN PUBLIC
ACCOMMODATIONS AS THEREIN DEFINED, THERE IS NO PUBLIC INTEREST TO BE
SERVED IN THE FURTHER PROSECUTION OF THE PETITIONERS.  AND IN
ACCORDANCE WITH THE LONG-ESTABLISHED RULE OF OUR CASES THEY MUST BE
ABATED AND THE JUDGMENT IN EACH IS THEREFORE VACATED AND THE CHARGES
ARE ORDERED DISMISSED.  IT IS SO ORDERED. 

FN1  SECTION 201: 

"(B)  EACH OF THE FOLLOWING ESTABLISHMENTS WHICH SERVES THE PUBLIC IS
A PLACE OF PUBLIC ACCOMMODATION WITHIN THE MEANING OF THIS TITLE IF ITS
OPERATIONS AFFECT COMMERCE  ...  . 

     *         *         *         *         * 

"(2)  ANY RESTAURANT, CAFETERIA, LUNCHROOM, LUNCH COUNTER, SODA
FOUNTAIN, OR OTHER FACILITY PRINCIPALLY ENGAGED IN SELLING FOOD FOR
CONSUMPTION ON THE PREMISES, INCLUDING, BUT NOT LIMITED TO, ANY SUCH
FACILITY LOCATED ON THE PREMISES OF ANY RETAIL ESTABLISHMENT  ...  . 

     *         *         *         *         * 

"(C)  THE OPERATIONS OF AN ESTABLISHMENT AFFECT COMMERCE WITHIN THE
MEANING OF THIS TITLE IF  ... IT SERVES OR OFFERS TO SERVE INTERSTATE
TRAVELERS  ...  ." 

FN2  IN LUPPER THE STATE'S BRIEF SAYS, "A REMAND OF THESE CASES WOULD
NOT REAP ANY  ... BENEFITS."  AT 13. 

FN3  SOME OF US BELIEVE THAT THE SUBSTANTIVE RIGHTS GRANTED BY THE
ACT HERE, I.E., FREEDOM FROM DISCRIMINATION IN PLACES OF PUBLIC
ACCOMMODATION ARE ALSO INCLUDED IN THE GUARANTEES OF THE FOURTEENTH
AMENDMENT, SEE CONCURRING OPINIONS IN BELL V. MARYLAND, 378 U.S. 226;
OTHERS TAKE THE POSITION THAT THE AMENDMENT CREATES NO SUCH SUBSTANTIVE
RIGHTS, SEE DISSENTING OPINION IN BELL V. MARYLAND, SUPRA.  NO SUCH
QUESTION IS INVOLVED HERE, AND WE DO NOT PASS UPON IT IN ANY MANNER. 
WE DEAL ONLY WITH THE STATUTORY RIGHTS CREATED IN THE ACT. 

FN4  IN BELL V. MARYLAND, SUPRA, WE DEALT WITH THE PROBLEM ARISING
WHEN A STATE ENACTMENT INTERVENED PRIOR TO THE FINALIZING OF STATE
CRIMINAL TRESPASS CONVICTIONS.  BECAUSE WE WERE DEALING WITH THE EFFECT
OF A STATE STATUTE ON A STATE CONVICTION PRIOR TO THE ACT'S PASSAGE WE
FELT THAT THE STATE COURTS SHOULD BE ALLOWED TO PASS ON THE QUESTION. 
HERE, WE HAVE AN INTERVENING FEDERAL STATUTE AND IN ATTEMPTING TO JUDGE
ITS EFFECT ON A STATE CONVICTION WE ARE FACED WITH A FEDERAL NOT A
STATE QUESTION.  BECAUSE OF THIS DISTINCTION WE DO NOT FEEL THAT REMAND
IS REQUIRED OR DESIRABLE. 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE GOLDBERG JOINS, CONCURRING. 

SOME OF MY BRETHREN RAISE CONSTITUTIONAL DOUBTS ABOUT THE POWER OF
CONGRESS TO NULLIFY THE CONVICTIONS OF SIT-IN DEMONSTRATORS FOR
VIOLATION OF STATE TRESPASS LAWS PRIOR TO THE PASSAGE OF THE CIVIL
RIGHTS ACT OF 1964.  MY BROTHER HARLAN OBSERVES THAT IT IS DIFFICULT TO
SEE, IN THE ABSENCE OF ANY EVIDENCE IN THE LEGISLATIVE RECORD OF THE
ACT, HOW "GIVING EFFECT TO PAST STATE TRESPASS CONVICTIONS WOULD RESULT
IN PLACING ANY BURDEN ON PRESENT INTERSTATE COMMERCE," POST, P. 325.  I
MERELY NOTE HERE THAT, IN JOINING THE OPINION OF THE COURT, I AM FACED
WITH NO SUCH DIFFICULTY.  THAT IS BECAUSE, AS MY BROTHER GOLDBERG AND I
SAID IN OUR RESPECTIVE CONCURRING OPINIONS IN HEART OF ATLANTA MOTEL,
INC. V. UNITED STATES, ANTE, PP. 291, 279, CONGRESS HAS, IN PASSING
THIS ACT, NOT MERELY SOUGHT TO REMOVE BURDENS FROM INTERSTATE COMMERCE;
IT HAS ALSO SOUGHT TO PROTECT AND ENFORCE THE FOURTEENTH AMENDMENT
RIGHT TO BE FREE OF DISCRIMINATORY TREATMENT, BASED ON RACE, IN PLACES
OF PUBLIC ACCOMMODATION.  IT IS CERTAINLY NOT DIFFICULT TO SEE HOW
CONGRESS COULD APPROPRIATELY CONCLUDE THAT ALL STATE INTERFERENCE WITH
THE EXERCISE OF THIS RIGHT SHOULD COME TO A HALT ON THE PASSAGE OF THE
ACT, THAT THE STATES SHOULD NOT BE PERMITTED TO INSIST ON PUNISHING ONE
WHOSE ONLY "CRIME" WAS ASSERTION OF A CONSTITUTIONAL RIGHT, ALBEIT
PRIOR TO THE ENACTMENT OF THE PRESENT LEGISLATION, AND THAT THIS COURT
SHOULD NOT PUT ITS IMPRIMATUR ON SUCH STATE PROSECUTIONS, WHENEVER THEY
AROSE. 

MR. JUSTICE BLACK, DISSENTING. 

THE CIVIL RIGHTS ACT OF 1964, VALIDLY, I THINK, (FN1) MADE IT
UNLAWFUL FOR CERTAIN RESTAURANTS THEREAFTER TO REFUSE TO SERVE FOOD TO
COLORED PEOPLE BECAUSE OF THEIR COLOR.  THE COURT NOW INTERPRETS THE
ACT AS A COMMAND MAKING IT UNLAWFUL FOR THE STATES TO PROSECUTE AND
CONVICT "SIT-IN" DEMONSTRATORS WHO HAD VIOLATED VALID STATE TRESPASS
LAWS PRIOR TO PASSAGE OF THE FEDERAL ACT.  THE IDEA THAT CONGRESS HAS
POWER TO ACCOMPLISH SUCH A RESULT HAS NO PRECEDENT, SO FAR AS I KNOW,
IN THE NEARLY 200 YEARS THAT CONGRESS HAS BEEN IN EXISTENCE. 

THE RECORD SHOWS THAT THE TWO PETITIONERS IN LUPPER, NO. 5, WERE PART
OF A GROUP OF PERSONS WHO WENT TO A DEPARTMENT STORE TEAROOM, SEATED
THEMSELVES AT TABLES AND AT THE COUNTER AS PART OF A "SIT-IN"
DEMONSTRATION, AND REFUSED TO LEAVE WHEN ASKED TO DO SO.  THE COURT
SAYS THAT THIS CONDUCT "COULD NOT BE THE SUBJECT OF TRESPASS
PROSECUTIONS, FEDERAL OR STATE, IF IT HAD OCCURRED AFTER THE ENACTMENT
OF THE STATUTE."  I DO NOT UNDERSTAND FROM WHAT THE COURT SAYS THAT IT
INTERPRETS THOSE PROVISIONS OF THE CIVIL RIGHTS ACT WHICH GIVE A RIGHT
TO BE SERVED WITHOUT DISCRIMINATION IN AN ESTABLISHMENT WHICH THE ACT
COVERS (FN2) AS ALSO AUTHORIZING PERSONS WHO ARE UNLAWFULLY REFUSED
SERVICE A "RIGHT" TO TAKE THE LAW INTO THEIR OWN HANDS BY SITTING DOWN
AND OCCUPYING THE PREMISES FOR AS LONG AS THEY CHOOSE TO STAY.  I THINK
ONE OF THE CHIEF PURPOSES OF THE 1964 CIVIL RIGHTS ACT WAS TO TAKE SUCH
DISPUTES OUT OF THE STREETS AND RESTAURANTS AND INTO THE COURTS, WHICH
CONGRESS HAS GRANTED POWER TO PROVIDE AN ADEQUATE AND ORDERLY JUDICIAL
REMEDY. 

EVEN ASSUMING, HOWEVER, THAT THE CIVIL RIGHTS ACT WAS INTENDED TO LET
PEOPLE WHO ENTER RESTAURANTS TAKE THE LAW INTO THEIR OWN HANDS BY
FORCIBLY REMAINING WHEN SERVICE IS REFUSED THEM, THIS WOULD BE NO BASIS
FOR HOLDING THAT CONGRESS ALSO MEANT TO COMPEL STATES TO ABATE
CONVICTIONS LIKE THESE FOR LAWLESS CONDUCT OCCURRING BEFORE THE ACT WAS
PASSED.  SEE BELL V. MARYLAND, 378 U.S. 226, 318 (DISSENTING OPINION). 
THE JUDGE-MADE "COMMON LAW RULE" OF CONSTRUCTION ON WHICH THE COURT
RELIES HAS BEEN APPLIED HERETOFORE ONLY WHERE THERE WAS A REPEAL OF ONE
STATUTE BY ANOTHER - NOT, AS MY BROTHER HARLAN POINTS OUT, WHERE AS
HERE A LATER LAW PASSED BY CONGRESS PLACES CERTAIN RESTRICTIONS ON THE
OPERATION OF THE STILL VALID LAW OF A STATE.  BUT EVEN IF THE OLD
COMMON-LAW RULE OF CONSTRUCTION TAKEN ALONE WOULD OTHERWISE HAVE ABATED
THESE CONVICTIONS, CONGRESS NEARLY A CENTURY AGO PASSED A "SAVING"
STATUTE, 1 U.S.C. SEC. 109 (1958 ED.), TO KEEP COURTS FROM IMPUTING TO
IT AN INTENT TO ABATE CASES RETROACTIVELY, UNLESS SUCH AN INTENT WAS
EXPRESSLY STATED IN THE LAW IT PASSED.  THAT STATUTE SAYS: 

"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 PURPOSE OF THIS STATUTE IS PLAIN ON ITS FACE - IT WAS TO PREVENT
COURTS FROM IMPUTING TO CONGRESS AN INTENT WHICH CONGRESS NEVER
ENTERTAINED.  THIS WAS BROAD, REMEDIAL LEGISLATION, SEE GREAT NORTHERN
R. CO. V. UNITED STATES, 208 U.S. 452; UNITED STATES V. REISINGER, 128
U.S. 398; UNITED STATES V. ULRICI, 3 DILLON 532, 28 FED. CAS.  328 (NO.
16,594)(C.C.E.D. MO.)(OPINION OF MR. JUSTICE MILLER ON CIRCUIT), AND BY
ANY FAIR READING IT IS BROAD ENOUGH TO WIPE OUT ANY AND EVERY
APPLICATION OF THE COMMON-LAW RULE WHICH IT WAS DESIGNED TO DO AWAY
WITH, UNLESS JUDGE-MADE RULES OF CONSTRUCTION HAVE SOME SORT OF
SUPERIORITY OVER CONGRESSIONALLY ENACTED STATUTES.  (FN3)  IN UNITED
STATES V. CHAMBERS, 291 U.S. 217, AND MASSEY V. UNITED STATES, 291 U.S.
608, THE ONLY CASES WHICH THE COURT CITES AS AUTHORITY FOR DISREGARDING
THE FEDERAL SAVING STATUTE, THIS COURT MADE CLEAR THAT THE SAVING
STATUTE WAS NOT INVOLVED IN ANY WAY SINCE THE ABATEMENT THERE WAS BY
FORCE OF THE TWENTY-FIRST AMENDMENT, AND OF COURSE AN AMENDMENT TO THE
CONSTITUTION SUPERSEDES AN ACT OF CONGRESS.  SEE 291 U.S., AT 223-224. 
BY TODAY'S DISCOVERY OF A "LONG-ESTABLISHED RULE OF OUR CASES," THE
COURT HAS NOW PUT BACK ON CONGRESS THE BURDEN OF SPELLING OUT
EXPRESSLY, STATUTE BY STATUTE, IN LAWS PASSED HEREAFTER THAT IT DOES
NOT WANT TO UPSET CONVICTIONS FOR PAST CRIMES, A BURDEN WHICH CONGRESS
RENOUNCED NEARLY 100 YEARS AGO AND WHICH IT DID NOT KNOW IT HAD WHEN IT
PASSED THE 1964 ACT. 

FURTHERMORE, I HAVE GRAVE DOUBT ABOUT THE POWER OF CONGRESS ACTING
UNDER THE COMMERCE CLAUSE AND THE NECESSARY AND PROPER CLAUSE TO TAKE
THE UNPRECEDENTED STEP OF ABATING THESE PAST STATE CONVICTIONS.  YET
THE COURT JUDICIALLY DECLARES THAT "THERE IS NO PUBLIC INTEREST TO BE
SERVED" IN UPHOLDING THE CONVICTIONS OF THESE TRESPASSERS, A CONCLUSION
OF POLICY WHICH I HAD THOUGHT WAS ONLY FOR LEGISLATIVE BODIES TO
DECIDE.  SEE FERGUSON V. SKRUPA, 372 U.S. 726. 

IN THE EARLY DAYS OF THIS COUNTRY THIS COURT DID NOT SO LIGHTLY
INTRUDE UPON THE CRIMINAL LAWS OF A STATE.  IN COHENS V. VIRGINIA, 6
WHEAT.  264, 443, DECIDED IN 1821, CHIEF JUSTICE JOHN MARSHALL SPEAKING
FOR THE COURT SAID: 

"TO INTERFERE WITH THE PENAL LAWS OF A STATE, WHERE THEY ARE NOT
LEVELLED AGAINST THE LEGITIMATE POWERS OF THE UNION, BUT HAVE FOR THEIR
SOLE OBJECT THE INTERNAL GOVERNMENT OF THE COUNTRY, IS A VERY SERIOUS
MEASURE, WHICH CONGRESS CANNOT BE SUPPOSED TO ADOPT LIGHTLY, OR
INCONSIDERATELY.  THE MOTIVES FOR IT MUST BE SERIOUS AND WEIGHTY.  IT
WOULD BE TAKEN DELIBERATELY, AND THE INTENTION WOULD BE CLEARLY AND
UNEQUIVOCALLY EXPRESSED. 

"AN ACT, SUCH AS THAT UNDER CONSIDERATION, OUGHT NOT, WE THINK, TO BE
SO CONSTRUED AS TO IMPLY THIS INTENTION, UNLESS ITS PROVISIONS WERE
SUCH AS TO RENDER THE CONSTRUCTION INEVITABLE."    NOTHING IN THE
LANGUAGE OR HISTORY OF THE 1964 ACT MAKES THE COURT'S READING INTO IT
OF A PURPOSE TO INTERFERE WITH STATE LAWS "INEVITABLE" OR EVEN
SUPPORTABLE, NOR IN ANY WAY JUSTIFIES THE COURT'S OFFHAND ASSERTION
THAT IT IS CARRYING OUT THE "LEGISLATIVE PURPOSE."  FOR I DO NOT FIND
ONE PARAGRAPH, ONE SENTENCE, ONE CLAUSE, OR ONE WORD IN THE 1964 ACT ON
WHICH THE MOST STRAINED EFFORTS OF THE MOST FERTILE IMAGINATION COULD
SUPPORT SUCH A CONCLUSION.  AND IN WHAT IS PERHAPS THE MOST EXTENSIVE
AND CAREFUL LEGISLATIVE HISTORY EVER COMPILED, DEALING WITH ONE OF THE
MOST THOROUGHLY DISCUSSED AND DEBATED BILLS EVER PASSED BY CONGRESS, A
HISTORY INCLUDING MILLIONS AND MILLIONS OF WORDS WRITTEN ON TENS OF
THOUSANDS OF PAGES CONTAINED IN VOLUMES WEIGHING WELL OVER HALF A
HUNDRED POUNDS, IN WHICH EVERY CONCEIVABLE ASPECT AND APPLICATION OF
THE 1964 ACT WERE DISCUSSED AD INFINITUM, NOT EVEN ONCE DID A SINGLE
SPONSOR, PROPONENT OR OPPONENT OF THE ACT INTIMATE A HOPE OR EXPRESS A
FEAR THAT THE ACT WAS INTENDED TO HAVE THE EFFECT WHICH THE COURT GIVES
IT TODAY. 

FN1  SEE MY CONCURRING OPINION IN HEART OF ATLANTA MOTEL, INC. V.
UNITED STATES, ANTE, P. 268. 

FN2  SECTIONS 201-203, 78 STAT. 243-244, 42 U.S.C. SECS. 2000A -
2000A-2 (1964 ED.). 

FN3  THE COURT SAYS THAT: 

"THE FEDERAL SAVING STATUTE WAS ORIGINALLY ENACTED IN 1871, 16 STAT.
432.  IT WAS MEANT TO OBVIATE MERE TECHNICAL ABATEMENT SUCH AS THAT
ILLUSTRATED BY THE APPLICATION OF THE RULE IN TYNEN DECIDED IN 1871. 
THERE A SUBSTITUTION OF A NEW STATUTE WITH A GREATER SCHEDULE OF
PENALTIES WAS HELD TO ABATE THE PREVIOUS PROSECUTION."  ANTE, P. 314. 
THERE IS NO SUPPORT FOR THIS STATEMENT IN THE LANGUAGE OF THE STATUTE,
IN ITS LEGISLATIVE HISTORY, OR IN SUBSEQUENT DECISIONS UNDER IT. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT HOLDS THAT THESE STATE TRESPASS CONVICTIONS, OCCURRING
BEFORE THE PASSAGE OF THE CIVIL RIGHTS ACT OF 1964, MUST BE SET ASIDE
BY VIRTUE OF THE FEDERAL DOCTRINE OF CRIMINAL ABATEMENT.  THIS
REMARKABLE CONCLUSION FINDS NO SUPPORT IN REASON OR AUTHORITY. 

THE COMMON-LAW RULE OF ABATEMENT IS BASICALLY A CANON OF CONSTRUCTION
CONCEIVED BY THE COURTS AS A YARDSTICK FOR DETERMINING WHETHER A
LEGISLATURE, WHICH HAS ENACTED A STATUTE MAKING CONDUCT NONCRIMINAL
WHICH WAS PROSCRIBED BY AN EARLIER CRIMINAL STATUTE, ALSO INTENDED TO
PUT AN END TO NONFINAL CONVICTIONS UNDER THE FORMER LEGISLATION.  IN
EFFECT, THE DOCTRINE OF ABATEMENT ESTABLISHES A PRESUMPTION THAT SUCH
WAS THE PURPOSE OF THE LEGISLATURE IN THE ABSENCE OF A DEMONSTRATED
CONTRARY INTENT, AS EVIDENCED, FOR EXAMPLE, IN THE CASE OF
CONGRESSIONAL ENACTMENTS BY THE FEDERAL SAVING STATUTE, (FN1) SEE
UNITED STATES V. REISINGER, 128 U.S. 398.  AS WAS SAID IN UNITED STATES
V. TYNEN, 11 WALL.  88, 95; 

"BY THE REPEAL OF THE 13TH SECTION OF THE ACT OF 1813 ALL CRIMINAL
PROCEEDINGS TAKEN UNDER IT FELL.  THERE CAN BE NO LEGAL CONVICTION, NOR
ANY VALID JUDGMENT PRONOUNCED UPON CONVICTION, UNLESS THE LAW CREATING
THE OFFENCE BE AT THE TIME IN EXISTENCE.  BY THE REPEAL THE LEGISLATIVE
WILL IS EXPRESSED THAT NO FURTHER PROCEEDINGS BE HAD UNDER THE ACT
REPEALED." 

THE DOCTRINE HAS ITS ORIGINS IN THE ENGLISH COMMON LAW, SEE, E.G.,
REX V. CATOR, 4 BURR.  2026, 98 ENG. REP. 56; KING V. DAVIS, 1 LEACH
CROWN CASES 306 (3D ED.), 168 ENG.  REP. 238, AND HAS BEEN EMBRACED IN
AMERICAN STATE AND FEDERAL JURISPRUDENCE. 

THE ABATEMENT DOCTRINE SERVES A USEFUL AND APPROPRIATE PURPOSE IN A
FRAMEWORK OF THE LEGISLATION OF A SINGLE POLITICAL SOVEREIGNTY.  THE
DOCTRINE STRIKES A JARRING NOTE, HOWEVER, WHEN IT IS APPLIED SO AS TO
AFFECT THE LEGISLATION OF A DIFFERENT SOVEREIGNTY, AS THE FEDERAL
DOCTRINE IS NOW USED TO ABATE THESE STATE CONVICTIONS.  OUR FEDERAL
SYSTEM TOLERATES WIDE DIFFERENCES BETWEEN STATE AND FEDERAL LEGISLATIVE
POLICIES, (FN2) AND THE PRESUMPTION OF RETROACTIVE EXCULPATION THAT
READILY ATTACHES TO A FEDERAL CRIMINAL STATUTE WHICH UNRESERVEDLY
REPEALS EARLIER FEDERAL LEGISLATION CANNOT, IN MY OPINION, BE
AUTOMATICALLY THOUGHT TO EMBRACE EXONERATION FROM EARLIER WRONGDOING
UNDER A STATE STATUTE.  (FN3) 

I KNOW OF NO CASE WHICH SUGGESTS THAT THE DOCTRINE OF ABATEMENT CAN
BE APPLIED TO AFFECT THE EXISTING LEGISLATION OF ANOTHER JURISDICTION. 
UNTIL TODAY THE DOCTRINE HAS ALWAYS BEEN APPLIED ONLY WITH RESPECT TO
LEGISLATION OF THE SAME SOVEREIGNTY, E.G., REX V. CATOR, SUPRA; KING V.
DAVIS, SUPRA; UNITED STATES V. TYNEN, SUPRA; YEATON V. UNITED STATES, 5
CRANCH 281.  AND ALL OF THE CASES RELIED ON BY THE COURT ARE OF THAT
CHARACTER. 

THE SUPREMACY CLAUSE CANNOT SERVE AS A VEHICLE FOR EXTENDING THE
FEDERAL DOCTRINE OF ABATEMENT BEYOND PROPER BOUNDS.  THAT PROVISION OF
THE CONSTITUTION WOULD COME INTO PLAY ONLY IF IT APPEARED FROM THE
CIVIL RIGHTS ACT ITSELF OR FROM ITS LEGISLATIVE HISTORY AND SETTING
THAT CONGRESS' PURPOSE WAS TO DISPLACE PAST AS WELL AS PROSPECTIVE
APPLICATIONS OF STATE LAWS TOUCHING UPON THE MATTERS WITH WHICH THE
FEDERAL STATUTE IS CONCERNED.  FOR ME, THIS WOULD HAVE TO BE MADE TO
APPEAR IN UNMISTAKABLE TERMS, FOR SUCH A PURPOSE WOULD REPRESENT AN
EXERCISE OF FEDERAL LEGISLATIVE POWER WHOLLY UNPRECEDENTED IN OUR
HISTORY. 

I ENTIRELY AGREE WITH MY BROTHER BLACK'S POIGNANT OBSERVATIONS ON
THIS SCORE; THERE IS NOT A SCINTILLA OF EVIDENCE WHICH REMOTELY
SUGGESTS THAT CONGRESS HAD ANY SUCH REVOLUTIONARY COURSE IN MIND. 
THE STATUTE IS TO BE "CONSTRUED AS INVALIDATING ANY PROVISION OF STATE
LAW UNLESS  ...  INCONSISTENT WITH ANY OF THE PURPOSES OF THIS ACT, OR
ANY PROVISION THEREOF."  WHETHER OR NOT STATE TRESPASS LAWS AS APPLIED
TO "RACIAL TRESPASSES" OCCURRING AFTER THE EFFECTIVE DATE OF THE CIVIL
RIGHTS ACT ARE TO BE DEEMED INCONSISTENT WITH THE PROVISIONS OF SEC.
203(C) OF THE ACT, (FN4) A QUESTION WHICH I FIND UNNECESSARY TO DECIDE
AT THIS JUNCTURE, THERE IS CERTAINLY NO SUCH PLAIN INCONSISTENCY
BETWEEN SEC. 203(C) AND STATE TRESPASS LAWS AS APPLIED IN THOSE
SITUATIONS ARISING BEFORE THE PASSAGE OF THE CIVIL RIGHTS ACT AS WOULD
JUSTIFY THIS COURT'S ATTRIBUTING TO CONGRESS A PURPOSE TO PRE-EMPT
STATE LAW IN SUCH INSTANCES. 

MOREOVER, THE CONTRARY CONCLUSION WOULD CONFRONT US WITH
CONSTITUTIONAL QUESTIONS OF THE GRAVEST IMPORT, FOR THE LEGISLATIVE
RECORD IS BARREN OF ANY EVIDENCE SHOWING THAT GIVING EFFECT TO PAST
STATE TRESPASS CONVICTIONS WOULD RESULT IN PLACING ANY BURDEN ON
PRESENT INTERSTATE COMMERCE.  (FN5)  SUCH EVIDENCE, AT THE VERY LEAST,
WOULD BE A PREREQUISITE TO THE VALIDITY OF ANY PURPORTED EXERCISE OF
THE COMMERCE POWER IN THIS REGARD.  SEE HEART OF ATLANTA MOTEL, INC. V.
UNITED STATES, ANTE, P. 241; KATZENBACH V. MCCLUNG, ANTE, P. 294. 
THERE IS, INDEED, NOTHING TO INDICATE THAT CONGRESS EVEN ADVERTED TO
SUCH A QUESTION. 

FINALLY, THE COURT'S DECISION CANNOT BE JUSTIFIED UNDER THE RULE OF
AVOIDANCE OF CONSTITUTIONAL QUESTIONS, SEE COURT'S OPINION, ANTE, P.
316.  THAT RULE DOES NOT REACH TO THE EXTENT OF ENABLING THIS COURT TO
FABRICATE NONCONSTITUTIONAL GROUNDS OF DECISION OUT OF WHOLE CLOTH. 

"'A STATUTE MUST BE CONSTRUED, IF FAIRLY POSSIBLE, SO AS TO AVOID NOT
ONLY THE CONCLUSION THAT IT IS UNCONSTITUTIONAL, BUT ALSO GRAVE DOUBTS
UPON THAT SCORE.'  UNITED STATES V. JIN FUEY MOY, SUPRA 241 U.S. 394,
401.  BUT AVOIDANCE OF A DIFFICULTY WILL NOT BE PRESSED TO THE POINT OF
DISINGENUOUS EVASION."  MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373, 379
(CARDOZO, J.).  (FN6) 

CONCLUDING THAT THESE TRESPASS CONVICTIONS ARE NOT ABATED, I WOULD
AFFIRM THE JUDGMENTS IN BOTH OF THESE CASES FOR THE REASONS GIVEN BY
MR. JUSTICE BLACK IN HIS DISSENTING OPINION IN BELL V. MARYLAND, 378
U.S. 226, 318, IN WHICH I JOINED. 

FN1  1 U.S.C. SEC. 109 (1958 ED.): 

"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." 

I ACCEPT THE COURT'S CONCLUSION THAT THIS SECTION HAS NO APPLICATION
HERE, BUT ONLY BECAUSE THERE HAS BEEN NO REPEAL OR AMENDMENT OF AN
EXISTING FEDERAL STATUTE. 

FN2 ARKANSAS, FOR EXAMPLE, HAS A SAVING CLAUSE, ARK. STAT. ANN. SECS.
1-103, 1-104, SIMILAR TO 1 U.S.C. SEC. 109, WHICH EXPRESSES A STATE
POLICY TO SAVE THE CONVICTION OF LUPPER.  SEE MACK V. CONNOR, 220 GA.
450, 139 S.E.2D 286 (1964).  CF. BELL V. MARYLAND, 378 U.S. 226,
CONVICTION AFFIRMED ON REMAND, 236 MD. 356, 204 A.2D 54; REHEARING
GRANTED AND ARGUMENT DEFERRED "AWAITING THE OUTCOME OF SIMILAR ISSUES
NOW PENDING BEFORE THE UNITED STATES SUPREME COURT," QUITE OBVIOUSLY
REFERRING TO THESE CASES. 

FN3  SEE COHENS V. VIRGINIA, 6 WHEAT.  264, 443, QUOTED IN MY BROTHER
BLACK'S OPINION, ANTE, P. 321. 

FN4  QUOTED IN THE COURT'S OPINION, ANTE, PP. 310-311. 

FN5  NO ATTEMPT IS MADE BY THE COURT TO JUSTIFY THE RETROACTIVE
APPLICATION OF THE CIVIL RIGHTS ACT UNDER THE FOURTEENTH AMENDMENT. 

FN6  SEE ALSO INTERNATIONAL ASSOCIATION OF MACHINISTS V. STREET, 367
U.S. 740, 797 (FRANKFURTER, J., DISSENTING). 

MR. JUSTICE STEWART, DISSENTING. 

THE CHIEF DIFFERENCE BETWEEN THESE CASES AND BELL V. MARYLAND, 378
U.S. 226, IS THAT HERE FEDERAL RATHER THAN STATE LEGISLATION HAS
INTERVENED WHILE THE CONVICTIONS WERE UNDER REVIEW.  AS I UNDERSTAND
THE COURT'S OPINION, IT FIRST ASSERTS THAT, IF THESE HAD BEEN FEDERAL
CONVICTIONS, THE PASSAGE OF THE CIVIL RIGHTS ACT WOULD HAVE ABATED THEM
UNDER PRINCIPLES OF FEDERAL DECISIONAL LAW.  IT THEN PROCEEDS TO APPLY
THOSE ASSERTED PRINCIPLES TO THESE STATE CONVICTIONS THROUGH THE
SUPREMACY CLAUSE OF THE CONSTITUTION.  IF I THOUGHT THAT CONGRESS HAD
PROVIDED THAT SUCH NONFINAL STATE CONVICTIONS ARE TO BE ABATED, I WOULD
FIND NO CONSTITUTIONAL DIFFICULTY IN JOINING THE COURT'S DISPOSITION OF
THESE CASES UNDER THE SUPREMACY CLAUSE.  BUT CONGRESS WAS SILENT ON THE
SUBJECT, AND AM UNABLE TO SUBSCRIBE TO THE COURT'S REASONING. 

IN BELL V. MARYLAND, WE SAID THAT A STATE'S ABATEMENT POLICY WAS FOR
THE STATE TO DETERMINE.  ARKANSAS AND SOUTH CAROLINA MIGHT HOLD THAT
THIS SUPERVENING FEDERAL LEGISLATION PROVIDES A COMPELLING REASON TO
ABATE THESE PROCEEDINGS, BUT I CAN FIND NOTHING IN THE LEGISLATION OR
IN THE CONSTITUTION WHICH REQUIRES THESE STATES TO DO SO. 

WE FOUND IN BELL THAT THE LAW OF MARYLAND WAS "OPEN AND ARGUABLE" ON
THE ISSUE OF ABATEMENT.  THE LAW OF ARKANSAS AND SOUTH CAROLINA IS NO
CLEARER.  LIKE MARYLAND, ARKANSAS HAS A SAVING STATUTE SIMILAR TO THE
FEDERAL COUNTERPART.  AND LIKE MARYLAND, SOUTH CAROLINA APPARENTLY HAS
A POLICY FAVORING ABATEMENT WHEN STATE CRIMINAL STATUTES ARE REPEALED
WHILE PROSECUTIONS ARE PENDING.  SEE STATE V. SPENCER, 177 S.C. 346,
181 S.E. 217. 

FOR THE REASONS STATED IN THE COURT'S OPINION IN BELL V. MARYLAND, I
WOULD VACATE THE JUDGMENTS AND REMAND THE CASES TO THE STATE COURTS FOR
RECONSIDERATION IN THE LIGHT OF THE SUPERVENING FEDERAL LEGISLATION. 

MR. JUSTICE WHITE, DISSENTING. 

ABSENT THE CIVIL RIGHTS ACT THERE WAS, IN MY VIEW, NO CONSTITUTIONAL
INFIRMITY IN THE STATE COURT CONVICTIONS.  BELL V. MARYLAND, 378 U.S.
226, 318 (DISSENTING OPINION OF MR. JUSTICE BLACK).  AND IF CONGRESS
HAD THE POWER TO ABATE THESE CONVICTIONS I AM CONFIDENT IT HAD NO
INTENT OF EXERCISING IT BY PASSING THE NEW LAW.  THERE IS NOTHING BUT
SILENCE TO INDICATE THAT CONGRESS MEANT TO VOID OUTSTANDING JUDGMENTS
OF STATE COURTS.  I WOULD NOT, FOR SEVERAL REASONS, READ SO MUCH INTO
NOTHING AS THE COURT ATTEMPTS TO DO. 

IT IS WRONG TO IMPUTE TO THE SILENCE OF CONGRESS AN UNUSUAL AND
UNPRECEDENTED STEP WHICH AT THE VERY LEAST POSES CONSTITUTIONAL
PROBLEMS OF SOME IMPORT.  BY THE TIME THE ACT WAS PASSED, BELL V.
MARYLAND, SUPRA, HAD FORCEFULLY RAISED THE WHOLE QUESTION OF THE STATUS
OF PREVIOUS CONVICTIONS AFTER A CHANGE IN THE LAW.  I CANNOT BELIEVE,
WITH THAT CASE ON THE BOOKS, REMITTING THE MATTER TO THE STATE COURTS
AS IT DID, CONGRESS WOULD HAVE LEFT UNSTATED ITS INTENTION TO ERASE ALL
STATE COURT TRESPASS JUDGMENTS THEN ON APPEAL IN THE COURTS.  MOREOVER,
THE COMMON-LAW PRESUMPTION OF ABATEMENT WAS REVERSED BY 1 U.S.C. SEC.
109 (1958 ED.), WHICH STANDS AS THE MOST RELEVANT INDICATOR OF
CONGRESSIONAL INTENTION IN SITUATIONS LIKE THIS.  CONGRESSIONAL SILENCE
IN THESE CIRCUMSTANCES SEEMS TO ME TO POINT TO THE CONCLUSION EXACTLY
OPPOSITE TO THAT REACHED BY THE COURT. 

FINALLY, HAD CONGRESS INTENDED TO RATIFY MASSIVE DISOBEDIENCE TO THE
LAW, SO OFTEN ATTENDED BY VIOLENCE, I FEEL SURE IT WOULD HAVE SAID SO
IN UNMISTAKABLE LANGUAGE.  THE TRUTH IS THAT IT IS ONLY JUDICIAL
RHETORIC TO BLAME THIS RESULT UPON CONGRESS.  GIVEN A DISCERNABLE
CONGRESSIONAL DECISION, I WOULD BE HAPPY TO FOLLOW IT, AS IT IS OUR
TASK TO DO, ABSENT CONSTITUTIONAL LIMITATIONS.  BUT WITHOUT IT WE HAVE
ANOTHER CASE.  WHETHER PERSONS OR GROUPS SHOULD ENGAGE IN NONVIOLENT
DISOBEDIENCE TO LAWS WITH WHICH THEY DISAGREE PERHAPS DEFIES ANY
CATEGORICAL ANSWER FOR THE GUIDANCE OF EVERY INDIVIDUAL IN EVERY
CIRCUMSTANCE.  BUT WHETHER A COURT SHOULD GIVE IT WHOLESALE SANCTION IS
A WHOLLY DIFFERENT QUESTION WHICH CALLS FOR ONLY ONE ANSWER. 
..END :









KING V. UNITED STATES 379 U.S. 329 


NO. 16.  ARGUED OCTOBER 19, 1964 - DECIDED DECEMBER 14, 1964 - 322 F.2D
317, AFFIRMED. 


A COMPANY WHICH HELD CERTAIN FEDERAL CONTRACTS FILED A PETITION FOR
REORGANIZATION UNDER CHAPTER XI OF THE BANKRUPTCY ACT.  THE GOVERNMENT
ANNOUNCED THAT IT WOULD TERMINATE THE CONTRACTS FOR DEFAULT, RELET THEM
AND HOLD THE COMPANY LIABLE FOR ANY EXCESS COSTS.  THE COMPANY'S
PRESIDENT WAS APPOINTED BY THE REFEREE AS DISTRIBUTING AGENT.  A PLAN
OF ARRANGEMENT SUBMITTED BY THE COMPANY DID NOT LIST THE GOVERNMENT AS
A CREDITOR, ALTHOUGH THE CONTRACTS WERE NOTED ON A SCHEDULE AS
EXECUTORY.   THE PLAN WAS CONFIRMED AFTER A HEARING AT WHICH THE
REFEREE WAS ADVISED BY THE COMPANY ATTORNEY THAT $94,000 WAS AVAILABLE
TO PAY ANY FEDERAL CLAIM.  THE GOVERNMENT FILED ITS CLAIM FOR MORE THAN
$26,000 WITHIN THE TIME DIRECTED BY THE COURT, BUT PRIOR THERETO THE
DISTRIBUTING AGENT HAD PAID OUT BY CHECK COUNTERSIGNED BY THE REFEREE
ALL BUT ABOUT $6,000 OF APPROXIMATELY $160,000 DEPOSITED WITH HIM,
INCLUDING SUBSTANTIAL PAYMENTS TO HIMSELF AS A COMPANY CREDITOR.  THE
AGENT'S FINAL REPORT WAS ULTIMATELY APPROVED BY THE COURT AND HE AND
HIS SURETY WERE DISCHARGED.  LITIGATION ESTABLISHED THAT THE
GOVERNMENT'S CLAIM WAS TIMELY FILED AND THE UNITED STATES BROUGHT THIS
SUIT AGAINST THE DISTRIBUTING AGENT (ON WHOSE DEATH PETITIONER
EXECUTRIX WAS SUBSTITUTED AS A DEFENDANT) AND THE SURETY UNDER 31
U.S.C. SEC. 192 FOR PAYMENT OF ITS CLAIM.  THE DISTRICT COURT DISMISSED
THE CASE ON THE THEORY THAT A DISTRIBUTING AGENT IS NOT WITHIN SEC. 192
AS AN "EXECUTOR, ADMINISTRATOR, OR ASSIGNEE OR OTHER PERSON," BECAUSE
HE IS NOT A PERSONAL REPRESENTATIVE OF THE DEBTOR, BUT IS AN ARM OF THE
BANKRUPTCY COURT.  THE COURT OF APPEALS REVERSED.  HELD: 

1.  BOTH 31 U.S.C. SEC. 191, WHICH ESTABLISHES PRIORITY FOR ANY DEBT
OWED BY AN INSOLVENT DEBTOR TO THE UNITED STATES, AND SEC. 192, WHICH
ASSURES THAT SUCH DEBT WILL BE PAID, ARE PART OF A SINGLE STATUTORY
PLAN.  BRAMWELL V. U.S. FIDELITY CO., 269 U.S. 483, FOLLOWED.  PP. 334
336. 

2.  THAT DISTRIBUTING AGENTS MAY BE ACTING PRIMARILY FOR THE COURT
RATHER THAN FOR THE DEBTOR DOES NOT CATEGORICALLY EXCLUDE THEM FROM THE
COVERAGE OF SEC. 192.  PP. 337-338. 

3.  HERE THE DISTRIBUTING AGENT AS THE DEBTOR COMPANY'S PRESIDENT
MUST HAVE BEEN AWARE OF THE GOVERNMENT'S CLAIM; PRESUMABLY ACTIVELY
HELPED FORMULATE THE PLAN OF ARRANGEMENT REFERRING TO THE FEDERAL
CONTRACTS; WAS APPARENTLY PRESENT WHEN THE COMPANY'S COUNSEL
REPRESENTED THAT FUNDS WERE AVAILABLE TO PAY THE CLAIM; AND WAS A MAJOR
DISTRIBUTEE UNDER THE PLAN.  ACCORDINGLY, THE AGENT POSSESSED
SUFFICIENT CONTROL OVER THE ASSETS IN HIS POSSESSION TO GIVE RISE TO A
RESPONSIBILITY UNDER SEC. 192, WHICH HE DID NOT DISCHARGE, FOR SEEING
THAT THE FEDERAL PRIORITY CLAIM WAS PAID.  PP. 338-340. 

KING, EXECUTRIX, ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BROUGHT BY THE UNITED STATES AGAINST THE EXECUTRIX
OF GEORGE KING, (FN1) A DECEASED DISTRIBUTING AGENT FOR A DEBTOR IN A
CHAPTER XI PROCEEDING, AND AGAINST HIS SURETY.  THE GOVERNMENT ALLEGED
THAT KING WAS PERSONALLY LIABLE UNDER R.S. SEC. 3467, 31 U.S.C.  SEC.
192 (1958 ED.), BECAUSE HE SATISFIED CLAIMS OF NONPRIORITY CREDITORS
WITH KNOWLEDGE OF AN OUTSTANDING GOVERNMENT PRIORITY CLAIM, IN
CONSEQUENCE OF WHICH THE GOVERNMENT COULD NOT BE PAID IN FULL. 

THE FACTS OF THE CASE WERE STIPULATED AND ARE ESSENTIALLY AS
FOLLOWS.  ON OCTOBER 1, 1946, SEELEY TUBE & BOX COMPANY, INC., A NEW
JERSEY CORPORATION, FILED A PETITION FOR REORGANIZATION UNDER CHAPTER
XI OF THE BANKRUPTCY ACT, 30 STAT. 563, AS AMENDED, 52 STAT. 905.  SOON
THEREAFTER, THE UNITED STATES NOTIFIED SEELEY THAT IT INTENDED TO
TERMINATE, BECAUSE OF SEELEY'S DEFAULT, TWO FEDERAL CONTRACTS BETWEEN
SEELEY AND THE PICATINNY ARSENAL, AN INSTALLATION OF THE WAR DEPARTMENT
OF THE UNITED STATES; THE GOVERNMENT FURTHER SIGNIFIED ITS PURPOSE TO
RELET THE CONTRACTS AND TO HOLD SEELEY LIABLE FOR ANY EXCESS COSTS.  ON
MARCH 17, 1947, THE REFEREE APPOINTED KING, WHO WAS SEELEY'S PRESIDENT,
AS DISTRIBUTING AGENT AND ACCEPTED HIS SURETY BOND FOR $10,000.  ON
MARCH 21, 1947, AFTER A HEARING, A PLAN OF ARRANGEMENT SUBMITTED BY
SEELEY WAS CONFIRMED; THE GOVERNMENT WAS NOT LISTED AS A CREDITOR IN
SEELEY'S PETITION, BUT THE PICATINNY CONTRACTS WERE NOTED IN AN ANNEXED
SCHEDULE AS EXECUTORY.  THE PLAN CALLED FOR SEELEY, THE DEBTOR
CORPORATION, TO DEPOSIT WITH THE DISTRIBUTING AGENT $160,193.68 TO BE
DISTRIBUTED PURSUANT TO ORDERS OF THE COURT BY CHECKS SIGNED BY THE
DISTRIBUTING AGENT AND COUNTERSIGNED BY THE REFEREE.  THE PLAN
CONTAINED NO WRITTEN PROVISION FOR PAYMENT OF THE GOVERNMENT'S AS YET
UNLIQUIDATED AND UNFILED CLAIM. 

AT THE HEARING, THE FOLLOWING COLLOQUY TOOK PLACE BETWEEN THE REFEREE
AND MR. FREEMAN, COUNSEL FOR SEELEY: 

"THE REFEREE.  IS THERE A CLAIM OF THE PICATINNY ARSENAL? 

"MR. FREEMAN.  THE PICATINNY ARSENAL MAY HAVE SOME CLAIM. 

"THE REFEREE.  HAVE WE PUT UP ENOUGH MONEY TO MEET IT? 

"MR. FREEMAN.  NO. 

"THE REFEREE.  IS THERE A PROBLEM THERE? 

"MR. FREEMAN.  WE DO NOT OWE THEM ANY MONEY, AND WE WANT TO BRING
THEM IN.  I WANT TO STATE TO YOUR HONOR FURTHER THAT THE DEBTOR COMPANY
WILL DEPOSIT ANY SUM OF MONEY THAT IS REPRESENTED BY ANY CLAIM THAT THE
PICATINNY ARSENAL MAY FILE IN THESE PROCEEDINGS WITHIN A TIME THAT YOUR
HONOR DIRECTS THEM TO FILE IT. 

"THE REFEREE.  HAVE YOU ANY NOTION OF WHAT THEY MIGHT CLAIM? 

"MR. FREEMAN.  WE THINK THEY MAY CLAIM $20,000. 

"THE REFEREE.  HAVE YOU $20,000 AVAILABLE? 

"MR. FREEMAN.  WE HAVE $94,000 AVAILABLE TO PAY THEM IF NECESSARY,
AND WE REPRESENT TO YOUR HONOR THAT THERE WILL BE AT ALL TIMES $20,000
OR MORE AVAILABLE TO DISPOSE OF THAT CLAIM, IN CASH  ...  ." 

THE RECORD SHOWS THAT KING WAS PRESENT IN THE COURTROOM ON THE DAY OF
THE HEARING. 

THEREAFTER THE COURT ENTERED AN ORDER DIRECTING THE GOVERNMENT TO
FILE ITS CLAIM ON OR BEFORE MAY 9, 1947.  ON MAY 9 THE GOVERNMENT DULY
FILED ITS PRELIMINARY CONTINGENT PROOF OF CLAIM IN THE AMOUNT OF
$26,818.82, LATER AMENDED TO $34,125.03, ALLEGING A PRIORITY UNDER SEC.
64 OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 104 (1958 ED.), AND R.S. SEC.
3466, 31 U.S.C. SEC. 191 (1958 ED.).  HOWEVER, IN THE SEVEN WEEKS
BETWEEN THE HEARING AND THE FILING OF THIS CLAIM, KING, AS DISTRIBUTING
AGENT, HAD PAID OUT BY CHECKS DULY COUNTERSIGNED BY THE REFEREE, ALL
BUT $6,085.01 OF THE $160,193.68 DEPOSITED WITH HIM; $42,829.76 WAS
PAID TO KING HIMSELF AS A CREDITOR OF THE COMPANY.  (FN2)  A LONG
LITIGATION THEN COMMENCED ON THE ISSUE OF WHETHER THE GOVERNMENT HAD
TIMELY FILED ITS CLAIM, WITH AN ULTIMATE DETERMINATION BEING MADE IN
JANUARY 1955, IN FAVOR OF THE GOVERNMENT BY THE COURT OF APPEALS FOR
THE THIRD CIRCUIT.  THE COURT STATED, "THE DISCLOSURE BY THE DEBTOR AT
THE REFEREE'S HEARING ON CONFIRMATION OF THE PLAN THAT THE GOVERNMENT
HAD BECOME A CREDITOR WAS  ...  IN PERFORMANCE OF ITS DUTY UNDER THE
ACT AND AMOUNTED TO AN INFORMAL AMENDMENT OF THE LIST OF CREDITORS
INCLUDED IN THE DEBTOR'S SCHEDULES."  IN RE SEELEY TUBE & BOX CO., 219
F.2D 389, 391, CERT. DENIED, 350 U.S. 821. 

AFTER KING HAD DISTRIBUTED THE $6,085.01 WHICH STILL REMAINED IN HIS
HANDS ($3,620.39 HAD GONE TO THE UNITED STATES) HE FILED HIS FINAL
REPORT AND ACCOUNT.  ON AUGUST 2, 1956, THE BANKRUPTCY COURT APPROVED
THEM AND DISCHARGED KING AND HIS SURETY.  (FN3) 

ON JULY 3, 1958, THE UNITED STATES COMMENCED THIS SUIT AGAINST KING
(FN4) FOR $25,831.08, THE BALANCE OUTSTANDING ON THE CLAIM AS FINALLY
DETERMINED, AND AGAINST THE SURETY FOR $10,000.  THE GOVERNMENT'S
CONTENTION WAS THAT KING INCURRED PERSONAL LIABILITY UNDER SEC. 192 FOR
THE UNPAID AMOUNT BY PAYING THE CLAIMS OF THE DEBTOR'S NONPRIORITY
CREDITORS AND THEREBY SO DEPLETING THE DEBTOR'S ASSETS THAT THE
GOVERNMENT'S SEC. 191 PRIORITY CLAIM COULD NOT BE PAID IN FULL. 

"EVERY EXECUTOR, ADMINISTRATOR, OR ASSIGNEE, OR OTHER PERSON, WHO
PAYS, IN WHOLE OR IN PART, ANY DEBT DUE BY THE PERSON OR ESTATE FOR
WHOM OR FOR WHICH HE ACTS BEFORE HE SATISFIES AND PAYS THE DEBTS DUE TO
THE UNITED STATES FROM SUCH PERSON OR ESTATE, SHALL BECOME ANSWERABLE
IN HIS OWN PERSON AND ESTATE TO THE EXTENT OF SUCH PAYMENTS FOR THE
DEBTS SO DUE TO THE UNITED STATES, OR FOR SO MUCH THEREOF AS MAY REMAIN
DUE AND UNPAID." 

THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE THEORY THAT A
DISTRIBUTING AGENT IS NOT INCLUDED WITHIN SEC. 192 AS AN "EXECUTOR,
ADMINISTRATOR, OR ASSIGNEE, OR OTHER PERSON" BECAUSE HE, UNLIKE THOSE
FIDUCIARIES MENTIONED SPECIFICALLY IN THE STATUTE, IS NOT A PERSONAL
REPRESENTATIVE OF THE DEBTOR BUT AN ARM AND A REPRESENTATIVE OF THE
BANKRUPTCY COURT.  208 F. SUPP. 697.  THE DECISION WAS REVERSED ON
APPEAL, 332 F.2D 317, AND, BECAUSE OF A CONFLICT AMONG THE CIRCUITS ON
THE PROPER INTERPRETATION OF SEC. 192, (FN5) WE GRANTED CERTIORARI, 375
U.S. 983. 

                                             I. 

DEBTS OWED BY AN INSOLVENT DEBTOR TO THE UNITED STATES, AND SEC. 192,
WHICH GIVES ASSURANCE THAT SUCH DEBTS WILL BE PAID, ARE PART OF A
SINGLE STATUTORY STRUCTURE.  THE PRECURSOR OF SEC. 191 FIRST APPEARED
IN 1789 IN AN ACT ESTABLISHING CUSTOMS DUTIES (1 STAT. 29, 42). 
PROVIDED:  "AND IN ALL CASES OF INSOLVENCY, OR WHERE ANY ESTATE IN THE
HANDS OF EXECUTORS OR ADMINISTRATORS SHALL BE INSUFFICIENT TO PAY ALL
THE DEBTS DUE FROM THE DECEASED, THE DEBT DUE TO THE UNITED STATES ON
ANY SUCH BONDS SHALL BE FIRST SATISFIED."  IN 1792 THE GOVERNMENT'S
PRIORITY WAS EXTENDED TO VOLUNTARY ASSIGNMENTS FOR THE BENEFIT OF
CREDITORS AND TO ATTACHMENTS OF THE PROPERTY OF "ABSCONDING, CONCEALED
OR ABSENT" DEBTORS AS WELL AS TO CASES IN WHICH "AN ACT OF LEGAL
BANKRUPTCY SHALL HAVE BEEN COMMITTED," SEC. 18, 1 STAT. 263.  PRIOR TO
PASSAGE OF THE ACT OF 1797, "AN INTERNAL REVENUE HAD BEEN ESTABLISHED,
AND EXTENSIVE TRANSACTIONS HAD TAKEN PLACE; IN THE COURSE OF WHICH,
MANY PERSONS HAD NECESSARILY BECOME INDEBTED TO THE UNITED STATES." 
UNITED STATES V. FISHER, 2 CRANCH 358, 392.  BY THE ACT OF 1797, THE
PERSON HEREAFTER BECOMING INDEBTED TO THE UNITED STATES, BY BOND OR
OTHERWISE."  1 STAT. 515.  SEE PRICE V. UNITED STATES, 269 U.S. 492,
501.  THEN, IN 1799, CONGRESS TOOK THE STEP WHICH CONCERNS US HERE BY
ADDING THE PROVISION NOW EMBODIED IN SEC. 192, ESTABLISHING PERSONAL
LIABILITY FOR THOSE WHO FRUSTRATED THE GOVERNMENT'S PRIORITY: 

"  ...  AND IN ALL CASES OF INSOLVENCY, OR WHERE ANY ESTATE IN THE
HANDS OF THE EXECUTORS, ADMINISTRATORS OR ASSIGNEES, SHALL BE
INSUFFICIENT TO PAY ALL THE DEBTS DUE FROM THE DECEASED, THE DEBT OR
DEBTS DUE TO THE UNITED STATES, ON ANY SUCH BOND OR BONDS, SHALL BE
FIRST SATISFIED; AND ANY EXECUTOR, ADMINISTRATOR, OR ASSIGNEES, OR
OTHER PERSON, WHO SHALL PAY ANY DEBT DUE BY THE PERSON OR ESTATE FROM
WHOM, OR FOR WHICH, THEY ARE ACTING, PREVIOUS TO THE DEBT OR DEBTS DUE
TO THE UNITED STATES FROM SUCH PERSON OR ESTATE BEING FIRST DULY
SATISFIED AND PAID, SHALL BECOME ANSWERABLE IN THEIR OWN PERSON AND
ESTATE, FOR THE DEBT OR DEBTS SO DUE TO THE UNITED STATES, OR SO MUCH
THEREOF AS MAY REMAIN DUE AND UNPAID  ...  ."  1 STAT. 676. 

LATER, IN THE SAME SECTION, THE PROVISO EXTENDING THE STATUTE TO
VOLUNTARY ASSIGNMENTS AND ABSCONDING DEBTORS IS ALSO INCLUDED. 

DIVISION OF THE PROVISIONS INTO SEPARATE SECTIONS IN THE REVISED
STATUTES "DID NOT WORK ANY CHANGE IN THE PURPOSE OR MEANING."  PRICE V.
UNITED STATES, 269 U.S. 492, 501.  THUS, IT IS EVIDENT THAT SECS. 191
AND 192 MUST BE INTERPRETED IN PARI MATERIA.  THE COURT SO STATED IN
UNITED STATES V. BUTTERWORTH-JUDSON CORP., 269 U.S. 504, 513, AND SO
INTERPRETED THEM IN BRAMWELL V. UNITED STATES FIDELITY & GUARANTY CO.,
269 U.S. 483, WHERE IT SAID: 

"THE SPECIFICATION IN SEC. 3466 (SEC. 191) OF THE WAYS INSOLVENCY MAY
BE MANIFESTED IS AIDED BY THE DESIGNATION IN SEC. 3467 (SEC. 192) OF
THE PERSONS MADE ANSWERABLE FOR FAILURE TO PAY THE UNITED STATES FIRST
FROM THE INADEQUATE ESTATES OF DECEASED DEBTORS OR FROM THE INSOLVENT
ESTATES OF LIVING DEBTORS.  THE PERSONS HELD ARE 'EVERY EXECUTOR,
ADMINISTRATOR, OR ASSIGNEE, OR OTHER PERSON.'  THE GENERALITY OF THE
LANGUAGE IS SIGNIFICANT.  TAKEN TOGETHER, THESE SECTIONS MEAN THAT A
DEBT DUE THE UNITED STATES IS REQUIRED FIRST TO BE SATISFIED WHEN THE
POSSESSION AND CONTROL OF THE ESTATE OF THE INSOLVENT IS GIVEN TO ANY
PERSON CHARGED WITH THE DUTY OF APPLYING IT TO THE PAYMENT OF THE DEBTS
OF THE INSOLVENT, AS THE RIGHTS AND PRIORITIES OF CREDITORS MAY BE MADE
TO APPEAR."  269 U.S., AT 490. 

                             II. 

PETITIONERS, IN ORAL ARGUMENT, CONCEDED THE GOVERNMENT'S PRIORITY
CLAIM UNDER SEC. 191.  THEIR CONTENTION, RELYING ON UNITED STATES V.
STEPHENS, 208 F.2D 105, IS THAT DISTRIBUTING AGENTS AS A CLASS ARE
NONETHELESS EXCLUDED FROM THE CATEGORY OF FIDUCIARIES COVERED BY SEC.
192 BECAUSE THEY ARE AGENTS OF THE COURT RATHER THAN PERSONAL
REPRESENTATIVES OF THE DEBTOR, AND THE WORDS "OR OTHER PERSON" ARE
"LIMITED TO THOSE WHO STAND AS PERSONAL REPRESENTATIVES (OF THE DEBTOR)
NOT ONLY BY THE APPLICATION OF THE PRINCIPLE OF EJUSDEM GENERIS BUT BY
THE LANGUAGE QUALIFYING 'PERSON' AS ONE 'WHO PAYS IN WHOLE OR IN PART
ANY DEBT DUE BY THE PERSON OR ESTATE FOR WHOM OR FOR WHICH HE ACTS.'" 
ID., AT 108. 

PETITIONERS' EMPHASIS ON A DISTINCTION BETWEEN A PERSONAL
REPRESENTATIVE AND AN AGENT OF THE COURT IS MISPLACED IN THE CONTEXT OF
SECS. 191 AND 192.  THE PURPOSE OF SEC. 192, AS RECOGNIZED IN BRAMWELL,
IS TO MAKE THOSE INTO WHOSE HANDS CONTROL AND POSSESSION OF THE
DEBTOR'S ASSETS ARE PLACED, RESPONSIBLE FOR SEEING THAT THE
GOVERNMENT'S PRIORITY IS PAID.  WHETHER OR NOT KING FALLS WITHIN THE
CATEGORY OF FIDUCIARIES ON WHOM SUCH RESPONSIBILITY SHOULD BE PLACED
DEPENDS, NOT ON THE TITLE OF HIS POSITION OR THE MODE OF HIS
APPOINTMENT, BUT, IN PRACTICAL TERMS, UPON THE DEGREE OF CONTROL HE IS
IN A POSITION TO ASSERT OVER THE ALLOCATION AMONG CREDITORS OF THE
DEBTOR'S ASSETS IN HIS POSSESSION.  THAT APPOINTMENT AS AN OFFICER OF
THE COURT DOES NOT DECISIVELY INHIBIT OPERATION OF SEC. 192 IS SHOWN BY
THE EXPRESS INCLUSION WITHIN THE SCOPE OF THE STATUTE OF COURT
APPOINTED ADMINISTRATORS.  (FN7)  AND BRAMWELL SHOWED THAT OTHERS
BESIDES PERSONAL REPRESENTATIVES OF THE DEBTOR MAY BE INCLUDED IN SEC.
192, FOR IN THAT CASE THIS COURT INDICATED THAT SEC. 192 WOULD APPLY TO
A STATE OFFICIAL CHARGED WITH THE FUNCTION OF LIQUIDATING A BANK'S
ASSETS, ALTHOUGH THE OFFICIAL WAS CLEARLY NOT ACTING AS THE PERSONAL
REPRESENTATIVE OF THE BANK.  PETITIONERS WOULD DISTINGUISH BRAMWELL IN
THAT THE STATE OFFICIAL HAD A LARGE MEASURE OF CONTROL, WHEREAS KING
DID NOT, (FN8) BUT THIS, ON THE ONE HAND, DOES NOT VITIATE THE POINT
THAT ONE NEED NOT BE A PERSONAL REPRESENTATIVE TO COME WITHIN THE
COVERAGE OF SEC. 192, AND, ON THE OTHER, EMPHASIZES THAT IT IS THE
ELEMENT OF CONTROL OVER THE ASSETS WHICH IS DECISIVE. 

WE AGREE WITH JUDGE BROWNING, WRITING IN UNITED STATES V. CROCKER,
313 F.2D 946, 949, THAT "THE DEBTS PAID BY A LIQUIDATING RECEIVER (AND,
WE ADD, DISTRIBUTING AGENT), LIKE THOSE PAID BY AN EXECUTOR,
ADMINISTRATOR, OR ASSIGNEE FOR THE BENEFIT OF CREDITORS, ARE PRIMARY
OBLIGATIONS OF THE DEBTOR; THE PHRASE 'FOR WHOM, OR FOR WHICH HE ACTS'
SHOULD BE READ AS A GENERAL ACKNOWLEDGMENT OF THIS FACT RATHER THAN AS
IMPOSING A RESTRICTION UPON THE REACH OF SECTION 192 INCONSISTENT WITH
THE OVERALL PURPOSE OF THIS SECTION AND SECTION 191."  WE REJECT,
THEREFORE, THE PROPOSITION THAT BECAUSE DISTRIBUTING AGENTS IN CHAPTER
XI PROCEEDINGS ACT PRIMARILY FOR THE COURT RATHER THAN FOR THE DEBTOR
THEY ARE CATEGORICALLY EXCLUDED FROM THE COVERAGE OF SEC. 192. 
                                    III. 

IT REMAINS TO INQUIRE WHETHER KING, BY ACTING AS AN ARM OF THE COURT
UNDER COURT INSTRUCTION AND APPROVAL LACKED THE DEGREE OF CONTROL
NECESSARY TO MAKE SEC. 192 OPERATIVE AS TO HIM.  PETITIONERS ARGUE THAT
DISTRIBUTING AGENTS EXERCISE NO DISCRETION IN THE DISCHARGE OF THEIR
DUTIES, BUT PERFORM ONLY THE MINISTERIAL FUNCTION OF PAYING OUT THE
DEPOSITED FUNDS IN CONFORMITY WITH THE COURT'S ORDERS.  INDEED, IT IS
CONTENDED THAT INCLUSION OF DISTRIBUTING AGENTS WITHIN THE COVERAGE OF
SEC. 192 WOULD HAVE PLACED KING ON THE HORNS OF A DILEMMA, IN THAT HE
MUST EITHER HAVE INCURRED PERSONAL LIABILITY TO THE GOVERNMENT OR
RISKED BEING HELD IN CONTEMPT BY THE BANKRUPTCY COURT.  BUT THIS
ASSUMES THAT THE PLAN OF ARRANGEMENT, ONCE SUBMITTED TO THE COURT, WAS
IMMUTABLE.  IN FACT, IF KING HAD OBJECTED AT THE CONFIRMATION HEARING
TO PAYING OUT THE DEPOSITED FUNDS TO NONPRIORITY CREDITORS BEFORE THE
GOVERNMENT'S CLAIM WAS SURELY PROVIDED FOR, THERE CAN BE LITTLE DOUBT
THAT HE WOULD HAVE OBTAINED SATISFACTION.  (FN9)  EVEN AFTER
CONFIRMATION IT IS MOST UNLIKELY THAT SUCH AN OBJECTION WOULD HAVE BEEN
IGNORED.  HAD IT BEEN, RESPONSIBILITY FOR THE FRUSTRATION OF THE
GOVERNMENT'S CLAIM WOULD HAVE DEVOLVED COMPLETELY UPON THE COURT, AND
WE WOULD BE FACED WITH A VERY DIFFERENT CASE. 

WE ARE NOT PREPARED TO ARTICULATE ANY GENERAL RULE DEFINING THE
RESPONSIBILITY OF DISTRIBUTING AGENTS TO MAKE AND PRESS SUCH
OBJECTIONS.  WE HOLD ONLY THAT KING, ON THE FACTS OF THIS CASE, DID
HAVE SUCH A RESPONSIBILITY.  (FN10)  AS PRESIDENT OF THE DEBTOR
CORPORATION HE MUST HAVE BEEN AWARE OF THE GOVERNMENT'S POTENTIAL
CLAIM; MOST LIKELY HE TOOK AN ACTIVE ROLE IN THE FORMULATION OF THE
PLAN OF ARRANGEMENT WHICH APPENDED A REFERENCE TO THE PICATINNY
CONTRACTS.  HE HAD BEEN APPOINTED DISTRIBUTING AGENT BEFORE THE DAY OF
THE CONFIRMATION HEARING, AND WAS PRESENT IN COURT ON THAT DAY.   IN
ALL LIKELIHOOD, HE WAS PRESENT AT THE TIME WHEN THE POSSIBILITY OF THE
GOVERNMENT CLAIM AROSE AND MR. FREEMAN, THE COMPANY'S COUNSEL, MADE THE
REPRESENTATION THAT $94,000 WAS AVAILABLE TO MEET IT.  FINALLY, HE
HIMSELF WAS ONE OF THE MAJOR DISTRIBUTEES IN THE DISTRIBUTION PLAN.  IN
THESE CIRCUMSTANCES WE THINK KING WAS POSSESSED OF A SUFFICIENT DEGREE
OF CONTROL OVER THE ALLOCATION AMONG CREDITORS OF THE ASSETS IN HIS
POSSESSION TO GIVE RISE TO RESPONSIBILITY UNDER SEC. 192 FOR SEEING
THAT THE GOVERNMENT PRIORITY WAS PAID, A RESPONSIBILITY WHICH KING, SO
FAR AS THE RECORD REVEALS, MADE NO EFFORT TO DISCHARGE.  THIS IS NOT TO
SAY THAT KING ACTED DISHONESTLY IN ANY WAY OR THAT HE POSITIVELY
INTENDED TO THWART THE GOVERNMENT'S CLAIM.  HE MAY WELL HAVE RELIED
EITHER ON THE REPRESENTATION THAT $94,000 WAS AVAILABLE, OR, AS
PRESIDENT OF THE CORPORATION WITH FULL KNOWLEDGE OF ITS FINANCES, ON
WHATEVER UNDERLYING FACTS LED MR. FREEMAN TO MAKE THAT REPRESENTATION. 
BUT SEC. 192 REQUIRED MORE OF KING THAN AN HONEST BELIEF THAT THE
GOVERNMENT WOULD BE PAID.  IT IMPOSED UPON HIM A DUTY TO SEE THAT THIS
WAS DONE.  AFFIRMED. 

FN1  KING DIED TESTATE AFTER COMMENCEMENT OF THE SUIT AND HIS
EXECUTRIX WAS SUBSTITUTED AS A PARTY DEFENDANT BY COURT ORDER.  AN
ACTION BY THE UNITED STATES AGAINST A FIDUCIARY UNDER R.S. SEC. 3467,
31 U.S.C. SEC. 192 (1958 ED.), SURVIVES AGAINST HIS ESTATE.  SEE UNITED
STATES V. DEWEY, 39 F. 251. 

FN2  THIS FACT WAS NOT STIPULATED, BUT APPEARS IN KING'S FINAL
PETITION AND REPORT, WHICH WAS ATTACHED AS EXHIBIT A TO THE
GOVERNMENT'S COMPLAINT.  SEE BRIEF FOR RESPONDENT, P. 7, N. 4. 

FN3  IT WAS ALLEGED IN THE GOVERNMENT'S COMPLAINT IN THIS ACTION THAT
IT RECEIVED NO NOTICE OF THESE EVENTS, BUT THIS ALLEGATION WAS DENIED
IN THE ANSWER AND IS NOT MENTIONED IN THE STIPULATED FACTS. 

FN4  SEE NOTE 1, SUPRA. 

FN5  COMPARE UNITED STATES V. STEPHENS, 208 F.2D 105 (C.A. 5TH CIR.
1953), WITH UNITED STATES V. CROCKER, 313 F.2D 946 (C.A. 9TH CIR. 1963)
AND THE DECISION OF THE COURT BELOW IN THE PRESENT CASE. 

FN6  SECTION 191 PROVIDES: 

"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 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." 

FN7  A TRUSTEE IN BANKRUPTCY, AN OFFICER OF THE COURT, HAS BEEN
INCLUDED AS AN "OTHER PERSON," UNITED STATES V. KAPLAN, 74 F.2D 664. 

FN8  SEE UNITED STATES V. KING, 322 F.2D 317, AT 322. 

FN9  SEE GENERALLY 8 COLLIER ON BANKRUPTCY, PARA. 5.33 (14TH ED.
1963). 

FN10  CF. FIELD V. UNITED STATES, 9 PET. 182 (1835). 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS SHARE THE VIEWS OF THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT, UNITED STATES V. STEPHENS, 208
F.2D 105, AS TO THE CONSTRUCTION OF THE STATUTE, AND WOULD THEREFORE
REVERSE THE JUDGMENT BELOW. 

MR. JUSTICE WHITE, CONCURRING. 

IN THE TYPICAL CHAPTER XI CASE INITIATED BY THE DEBTOR UNDER SEC. 322
IT IS THE DEBTOR THAT REMAINS IN POSSESSION AND THAT HAS PREPARED AND
FILED THE PETITION AND SCHEDULES AND THAT PROPOSES THE ARRANGEMENT.  IT
IS ONLY AFTER THE ARRANGEMENT HAS BEEN APPROVED BY THE CREDITORS THAT A
DISTRIBUTING AGENT IS APPOINTED AND CHARGED WITH THE DISTRIBUTION TO
SPECIFIED RECIPIENTS OF THE DEPOSIT REQUIRED BY THE ACT.  THE AGENT,
QUA AGENT, HAS NO REASON OR DUTY TO KNOW OR TO LEARN OF UNSCHEDULED
DEBTS, PRIORITY OR OTHERWISE, AND LACKING SUCH KNOWLEDGE FROM SOME
OTHER SOURCE SUCH AS HIS PRIOR OR CURRENT POSITION WITH THE DEBTOR I
WOULD THINK HE WOULD BE BEYOND THE REACH OF 31 U.S.C. SEC. 192 (1958
ED.)  IF A GOVERNMENT PRIORITY CLAIM IS UNSCHEDULED AND UNPAID.* 

*EVEN IF A DISTRIBUTING AGENT DOES LEARN OF THE GOVERNMENT CLAIMS IT
MAY BE THAT HE SHOULD NOT BE HELD LIABLE UNDER SEC. 192, IF SUCH
KNOWLEDGE IS NOT OBTAINED UNTIL AFTER CONFIRMATION.  AS THE CLAIM WAS
NEITHER SCHEDULED NOR FILED PRIOR TO CONFIRMATION THE GOVERNMENT WOULD
NOT BE ENTITLED TO SHARE IN THE DEPOSIT AND A DISBURSEMENT FROM THE
DEPOSIT TO THE UNITED STATES WOULD PROBABLY SUBJECT THE DISTRIBUTING
AGENT TO LIABILITY TO CREDITORS ENTITLED TO SHARE IN THE COMPOSITION. 
IN RE J.B. POLLAK CO., 86 F.2D 99.  ONLY IF THE CONFIRMATION WERE SET
ASIDE PRIOR TO DISTRIBUTION OF THE DEPOSIT, WHICH NORMALLY OCCURS
IMMEDIATELY, COULD PROVISION BE MADE TO PAY THE GOVERNMENT CLAIM.  IN
THIS RESPECT IT SHOULD BE NOTED THAT THE COURT'S OBSERVATION THAT EVEN
IF KING HAD WAITED TO OBJECT "TO PAYING OUT THE DEPOSITED FUNDS TO
NONPRIORITY CREDITORS BEFORE THE GOVERNMENT'S CLAIM WAS SURELY PROVIDED
FOR" UNTIL AFTER CONFIRMATION "IT IS MOST UNLIKELY THAT SUCH AN
OBJECTION WOULD HAVE BEEN IGNORED," ANTE, PP. 338, 339, WHILE PERHAPS
TRUE ON THE PARTICULAR FACTS OF THIS CASE, IS GREATLY OVERSIMPLIFIED IF
MEANT TO APPLY TO THE DISTRIBUTING AGENT'S POSITION GENERALLY. 

BUT THE AGENT DOES HAVE THE TASK OF DISTRIBUTING THE DEPOSIT AND THE
DEPOSIT IS REQUIRED TO INCLUDE A SUFFICIENT SUM TO PAY ALL PRIORITY
CLAIMS (WITH SOME EXCEPTIONS), EVEN THOSE WHICH ARE SCHEDULED AS
DISPUTED AND UNLIQUIDATED.  BANKRUPTCY ACT, SEC. 337(2), 11 U.S.C.
SEC. 737(2) (1958 ED.); 8 COLLIER ON BANKRUPTCY, PARA. 5.33(2), AT 696
(14TH ED. 1963).  HIS RESPONSIBILITY UNDER CHAPTER XI AND UNDER 31
U.S.C. SECS. 191 AND 192 EXTENDS FAR ENOUGH TO IMPOSE THE OBLIGATION TO
ASCERTAIN THAT THE DEPOSIT HE IS HANDLING IS AMPLE TO PAY THE CLAIMS
SPECIFIED IN THE STATUTE AND IS DISBURSED AS REQUIRED BY LAW.  AND AS
TO SCHEDULED CLAIMS, LIQUIDATED OR NOT, DISPUTED OR UNDISPUTED, THE
DISTRIBUTING AGENT IS FURNISHED WITH SUFFICIENT KNOWLEDGE TO FASTEN
UPON HIM THE RESPONSIBILITY OF NOT PAYING OUT THE DEPOSIT SO AS TO
DEFEAT THE PRIORITY OF THE GOVERNMENT UNDER SEC. 191, AT LEAST WITHOUT
A COURT DETERMINATION THAT HE SHOULD DO SO. 

THERE REMAINS, HOWEVER, A DIFFICULTY IN THIS CASE.  ALTHOUGH THE
PAPERS FILED WITH THE PETITION REVEALED THE DEBTOR HAD CERTAIN
CONTRACTS WITH THE GOVERNMENT, THE SCHEDULES DID NOT LIST THE UNITED
STATES AS A CREDITOR.  HOWEVER, THE GOVERNMENT LATER TERMINATED THE
CONTRACTS AND AT THE CONFIRMATION HEARING THE EXISTENCE OF A CLAIM OF
THE UNITED STATES WAS MADE KNOWN.  THE REFEREE HIMSELF BROUGHT UP THE
QUESTION OF PROVIDING FOR PAYMENT OF THE GOVERNMENT'S CLAIM AND WAS
TOLD, AS I READ THE TESTIMONY, THAT THE DEPOSIT DID NOT INCLUDE ANY SUM
TO DEFRAY ANY PART OF THIS CLAIM BUT THAT THE DEBTOR WOULD HAVE AMPLE
SUMS AVAILABLE TO SATISFY THE CLAIM AND WOULD MAKE ANY DEPOSIT FOR THIS
PURPOSE WHICH IT WAS DIRECTED TO MAKE.  THE DEBTOR'S ATTORNEY, HOWEVER,
MADE IT CLEAR THAT THE DEBTOR WAS DISPUTING THE CLAIM OF THE UNITED
STATES.  IN EFFECT, THE SITUATION AT THAT POINT WAS AS THOUGH A
DISPUTED AND UNLIQUIDATED CLAIM HAD BEEN SCHEDULED.  IN RE SEELEY TUBE
& BOX CO., 219 F.2D 389, CERT. DENIED, 350 U.S. 821.  AN ARRANGEMENT
MAY NOT BE CONFIRMED IF A DEPOSIT DOES NOT INCLUDE AN AMOUNT TO TAKE
CARE OF ALL SCHEDULED PRIORITY CLAIMS INCLUDING THOSE WHICH ARE
UNLIQUIDATED.  8 COLLIER ON BANKRUPTCY, PARA. 5.32(8).  IF THE REFEREE,
AS HE APPARENTLY DID HERE, CONFIRMED THE ARRANGEMENT WITHOUT HAVING IN
HAND A DEPOSIT TO PAY THE DEBT TO THE GOVERNMENT IF PROVED AND ALLOWED,
IT COULD WELL BE ARGUED THAT A DISTRIBUTING AGENT SHOULD NOT BE
REQUIRED TO HAVE REMONSTRATED WITH THE REFEREE OR TO BEAR THE BURDEN OF
THE REFEREE'S UNAUTHORIZED ACT, FOR THE DISTRIBUTING AGENT'S "CONTROL
AND POSSESSION" ARE LIMITED TO THE DEPOSIT. 

WE NEED NOT PURSUE THIS PHASE OF THE MATTER FURTHER, HOWEVER, SINCE
OTHER FACTS JUSTIFY HOLDING THE DISTRIBUTING AGENT ACCOUNTABLE IN THIS
PARTICULAR CASE.  AS THE COURT POINTS OUT, THE AGENT WAS AN OFFICER OF
THE DEBTOR, WAS UNDOUBTEDLY FAMILIAR WITH ITS AFFAIRS AND TOOK NO
EXCEPTION TO THE ATTORNEY'S STATEMENT THAT THERE WOULD BE AMPLE FUNDS
TO PAY THE GOVERNMENT CLAIM.  THIS PETITIONER WAS NOT AN UNINFORMED
DISTRIBUTING AGENT DOING ONLY WHAT HE WAS TOLD TO DO BUT WAS BOTH A
DISTRIBUTING AGENT AND AN OFFICER OF THE DEBTOR, WITH AMPLE NOTICE OF
THE GOVERNMENT'S CLAIM AND OF THE REFEREE'S EXPECTATION THAT WHEN
PROVED AND ALLOWED IT WOULD BE PAID.  IN PAYING OUT THE DEPOSIT WITHOUT
PROVISION FOR THE CLAIM OF THE UNITED STATES HE ACTED AT HIS OWN RISK
AND BECAME PERSONALLY LIABLE UNDER SEC. 192 WHEN THE GOVERNMENT'S CLAIM
BECAME LIQUIDATED. 
..END :




ALL STATES FREIGHT V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. 379
U.S. 343 


NO. 22.  ARGUED OCTOBER 21, 1964 - DECIDED DECEMBER 14, 1964 - 221 F.
SUPP. 370, AFFIRMED. 


TO ESTABLISH "JUST AND REASONABLE CLASSIFICATIONS OF PROPERTY FOR
TRANSPORTATION, WITH REFERENCE TO WHICH RATES" ARE OR MAY BE
PRESCRIBED, APPLIES TO THE SETTING OF CLASS RATES (RATES FOR VARIOUS
CLASSES OR CATEGORIES OF PROPERTY) BUT NOT TO ALL-COMMODITY RATES,
ALTHOUGH ALL-COMMODITY RATES ARE SUBJECT TO INTERSTATE COMMERCE
COMMISSION CONTROL UNDER OTHER PROVISIONS OF THE ACT.  PP.  343-355. 

ALL STATES FREIGHT, INC., ET AL. V. NEW YORK, NEW HAVEN & HARTFORD
RAILROAD CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT
SETTING ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION WHICH HAD
DISALLOWED CERTAIN FREIGHT RATES FILED BY THE NEW YORK, NEW HAVEN &
HARTFORD RAILROAD COMPANY (HEREAFTER "THE NEW HAVEN") AND OTHER RAIL
CARRIERS.  THE ISSUE PRESENTED IS WHETHER SEC. 1(6) OF THE INTERSTATE
COMMERCE ACT, AS AMENDED, WHICH REQUIRES CARRIERS "TO ESTABLISH,
OBSERVE, AND ENFORCE JUST AND REASONABLE CLASSIFICATIONS OF PROPERTY
FOR TRANSPORTATION, WITH REFERENCE TO WHICH RATES, TARIFFS,
REGULATIONS, OR PRACTICES ARE OR MAY BE MADE OR PRESCRIBED," (FN1) IS
APPLICABLE TO SO-CALLED ALL-COMMODITY FREIGHT RATES.  THE COMMISSION,
WITH THREE MEMBERS DISSENTING, HELD THAT SEC. 1(6) DOES APPLY TO SUCH
RATES, AND THAT THE SECTION WAS VIOLATED BY THE RATE SCHEDULES HERE IN
QUESTION.  315 I.C.C. 419.  THE DISTRICT COURT HELD THAT SEC. 1(6)
REQUIRES "THE MAINTENANCE IN BEING OF CLASS RATES" BUT DOES NOT
PROHIBIT "COMPETITIVELY COMPELLED DEPARTURES FROM CLASSIFICATIONS,
WITHIN THE ESTABLISHED MAXIMA, ABSENT SOME OTHER VIOLATION OF THE ACT
THAN THE MERE DEPARTURE FROM THE CLASSIFICATION."  221 F. SUPP.  370,
374.  WE AGREE WITH THE DISTRICT COURT AND AFFIRM THE JUDGMENT BEFORE
US. 

A GENERAL WORD AS TO THE BASIC DISTINCTION BETWEEN CLASS RATES AND
COMMODITY RATES MAY BE APPROPRIATE BEFORE PROCEEDING TO THE SPECIFICS
OF THE PRESENT CASE.  CLASS RATES WERE AT THE FOUNDATION OF THE
RAILROAD RATE STRUCTURE AT THE TIME OF THE ENACTMENT OF THE INTERSTATE
COMMERCE ACT IN 1887.  SUCH RATES ARE APPLIED TO TRAFFIC THROUGH TWO
SEPARATE TARIFFS.  ONE TARIFF, THE "CLASSIFICATION," ASSIGNS EACH OF
THE MANY THOUSAND COMMODITIES CARRIED BY RAIL TO ONE OF PRESENTLY SOME
30 CATEGORIES OR CLASSES, BASED UPON THE COMMODITY'S PARTICULAR
CHARACTERISTICS.  (FN2)  A COMPANION TARIFF SPECIFIES THE RATE AT WHICH
EACH CLASS OF FREIGHT WILL BE CARRIED.  BY CONTRAST, COMMODITY RATES,
WHICH WERE ALSO IN EXISTENCE AT THE TIME OF THE ORIGINAL PASSAGE OF THE
INTERSTATE COMMERCE ACT, ARE RATES MADE SPECIFICALLY APPLICABLE FOR THE
CARRIAGE OF A PARTICULAR COMMODITY OR GROUP OF COMMODITIES FROM ONE
DESIGNATED POINT TO ANOTHER.  THE ORIGINAL FUNCTION OF COMMODITY RATES,
WHICH ARE GENERALLY LOWER THAN CLASS RATES, WAS TO ENCOURAGE THE
MOVEMENT OF BULK COMMODITIES, SUCH AS COAL AND GRAIN.  WITH THE ONSET
AND RAPID GROWTH OF INTERMODAL COMPETITION, THE RAILROADS INCREASINGLY
TURNED TO COMMODITY RATES IN AN EFFORT TO PREVENT DIVERSION OF TRAFFIC
TO OTHER MODES OF TRANSPORTATION.  SINCE 1932, NUMEROUS ALL-COMMODITY
OR ALL-FREIGHT RAIL RATES HAVE BEEN ESTABLISHED BETWEEN VARIOUS POINTS
THROUGHOUT THE COUNTRY.  TYPICALLY, SUCH RATES HAVE NOT LITERALLY
APPLIED TO ALL COMMODITIES, BUT TO A BROAD NUMBER, AND THEY HAVE OFTEN
APPLIED ONLY TO MIXED CARLOAD SHIPMENTS.  TODAY ONLY A SMALL FRACTION
OF RAIL CARLOAD TONNAGE MOVES ON CLASS RATES; BY FAR THE MAJOR PORTION
MOVES ON COMMODITY RATES OF SOME KIND. 

IN THE SUMMER OF 1958 THE RAIL CARRIERS COMPETING WITH THE NEW HAVEN
ESTABLISHED A TRAILER-ON-FLATCAR SERVICE.  UNDER THIS SYSTEM TRUCK
TRAILERS LOADED WITH VARIOUS COMMODITIES ARE BROUGHT TO THE RAILROAD'S
LOADING RAMP FOR CARRIAGE ON FREIGHT CARS TO DESTINATION FOR DELIVERY
TO THE CONSIGNEE AT THE RAILROAD'S UNLOADING RAMP.  THIS TYPE OF
SERVICE WAS INSTITUTED IN AN EFFORT TO MEET MOTOR CARRIER COMPETITION. 
EASTERN CENTRAL MOTOR CARRIERS ASSN. V. BALTIMORE & O.R. CO., 314
I.C.C. 5.  THE NEW HAVEN HAD PHYSICAL CLEARANCE PROBLEMS AND EQUIPMENT
SHORTAGES WHICH PREVENTED ITS PARTICIPATION IN THIS TYPE OF FREIGHT
TRANSPORTATION, AND DURING THE FIRST TWO MONTHS THAT THE TRAILER-ON
FLATCAR RATES WERE IN EFFECT ON COMPETING RAILROADS, THE NEW HAVEN LOST
THE EQUIVALENT OF MORE THAN 350 CARS OF TRAFFIC FROM BOSTON TO ST.
LOUIS, AND SUFFERED SUBSTANTIAL FURTHER LOSSES OF TRAFFIC WESTWARD FROM
OTHER NEW ENGLAND POINTS. 

IN ORDER TO COMPETE WITH THE TRAILER-ON-FLATCAR RATES, AND IN AN
EFFORT TO COPE WITH A SIGNIFICANT IMBALANCE BETWEEN EASTBOUND AND
WESTBOUND TRAFFIC OVER ITS LINES, (FN3) THE NEW HAVEN FILED WITH THE
COMMISSION THE ALL-COMMODITY RATES WHICH HAVE BECOME THE SUBJECT OF THE
PRESENT LITIGATION.  THESE RATES APPLIED TO TRAFFIC BETWEEN SPECIFIED
NEW ENGLAND POINTS AND CHICAGO AND ST. LOUIS.  RESTRICTED TO BOXCAR
FREIGHT MOVING WESTWARD, IN STRAIGHT OR MIXED CARLOADS, THE RATES WERE
GRADUATED ACCORDING TO MINIMUM WEIGHT PER CAR.  THEY DID NOT APPLY TO
CERTAIN DESIGNATED KINDS OF TRAFFIC.  (FN4) 

THE COMMISSION INITIALLY SUSPENDED THE RATES, BUT ALLOWED THEM TO
BECOME EFFECTIVE ON JULY 6, 1959, AND THEY HAVE REMAINED IN EFFECT
SINCE THAT DATE.  VARIOUS MOTOR CARRIER ASSOCIATIONS AND SOME OF THEIR
INDIVIDUAL MEMBERS PROTESTED THE RATES, BUT IN FEBRUARY 1961, DIVISION
2 OF THE COMMISSION FILED A REPORT APPROVING THEM.  313 I.C.C. 275.  ON
RECONSIDERATION LATER THAT YEAR, THE FULL COMMISSION HELD BY A DIVIDED
VOTE THAT THE RATES VIOLATED SEC. 1(6) OF THE ACT.  315 I.C.C. 419. 
(FN5)  THE DISTRICT COURT SET ASIDE THE COMMISSION'S ORDER AND ENJOINED
ITS ENFORCEMENT, HOLDING THAT THE ORDER RESTED ON AN ERRONEOUS
INTERPRETATION OF SEC. 1(6) OF THE ACT.  THE INTERVENING PROTESTANTS
BROUGHT THIS APPEAL HERE, AND WE NOTED PROBABLE JURISDICTION.  376 U.S.
961.  (FN6) 

IT IS CLEAR THAT SEC. 1(6) GIVES THE COMMISSION POWER TO REQUIRE THAT
CARRIERS MAINTAIN JUST AND REASONABLE CLASSIFICATIONS IN CONJUNCTION
WITH THE SETTING OF CLASS RATES.  THE QUESTION HERE POSED IS WHETHER
THAT SECTION APPLIES TO COMMODITY RATES AS WELL, AND SPECIFICALLY
WHETHER IT APPLIES TO ALL-COMMODITY RATES.  NO DOUBT THE LANGUAGE OF
THE STATUTE, "JUST AND REASONABLE CLASSIFICATIONS OF PROPERTY" AND
"JUST AND REASONABLE REGULATIONS AND PRACTICES AFFECTING
CLASSIFICATIONS" IS SUSCEPTIBLE OF A CONSTRUCTION WHICH WOULD EMBRACE
THE RATES IN ISSUE HERE.  THE RATES DO NOT APPLY TO A SINGLE, UNIQUELY
IDENTIFIABLE ARTICLE BUT TO A LARGE GROUP OF COMMODITIES, WHICH COULD
BE DESCRIBED AS A CLASSIFICATION OF PROPERTY.  BUT THE FACT THAT THE
TERMS OF THE STATUTE CAN BE INTERPRETED BROADLY ENOUGH TO ENCOMPASS
THESE RATES WITHOUT DOING VIOLENCE TO THE ENGLISH LANGUAGE DOES NOT
SETTLE THE PROBLEM.  IT REMAINS TO INQUIRE WHETHER THE LEGISLATIVE
HISTORY WARRANTS OR THE STATUTORY STRUCTURE SUPPORTS SUCH A BROAD
INTERPRETATION. 

AT THE TIME OF THE ENACTMENT OF THE INTERSTATE COMMERCE ACT THE VAST
PREPONDERANCE OF RAIL FREIGHT TRAFFIC MOVED ON CLASS RATES.  THESE
CLASSES AS WELL AS THE RATES APPLICABLE TO THEM VARIED GREATLY AMONG
DIFFERENT RAILROADS AND DIFFERENT SECTIONS OF THE COUNTRY.  WHEN THE
INTERSTATE COMMERCE ACT WAS FORMULATED, CONSIDERATION WAS GIVEN TO
EMPOWERING THE COMMISSION TO PRESCRIBE CLASSIFICATIONS, BUT IT WAS
FINALLY CONCLUDED THAT THE PROVISIONS OF THE BILL WHICH REQUIRED
PUBLICATION OF RATES AND CLASSIFICATIONS, TOGETHER WITH THE PROVISIONS
REGULATING UNREASONABLE RATES, WOULD ULTIMATELY PROVE ADEQUATE TO
ACHIEVE THE DESIRED UNIFORMITY OF CLASSIFICATIONS.  (FN7)  BEGINNING
WITH ITS FIRST ANNUAL REPORT, HOWEVER, THE COMMISSION EXPRESSED ITS
CONCERN WITH THE CONTINUING LACK OF UNIFORMITY IN FREIGHT
CLASSIFICATIONS, (FN8) AND SEVEN YEARS LATER RECOMMENDED THAT IT BE
EMPOWERED TO MAKE A UNIFORM CLASSIFICATION.  (FN9)  IN 1906 THE HEPBURN
ACT GAVE THE COMMISSION POWER FOR THE FIRST TIME TO PRESCRIBE MAXIMUM
REASONABLE RATES, (FN10) BUT TRANSPORTATION CHARGES COULD STILL BE
INCREASED BY CHANGES IN THE CLASSIFICATION OF ANY COMMODITY. 

THE COMMISSION HAD SUCCEEDED IN EXERCISING POWER OVER CLASSIFICATIONS
IN PROCEEDINGS UNDER SECS. 1, 2, AND 3 OF THE ACT, AND IN MANY CASES
HAD DECLARED CLASSIFICATIONS OF PARTICULAR COMMODITIES TO BE
UNREASONABLE.  (FN11)  HOWEVER, THE POWER OF THE COMMISSION TO HALT
MANIPULATION OF THE CLASSIFICATION RATE SYSTEM HAD BEEN THROWN INTO
SERIOUS DOUBT BY A CASE DECIDED IN 1905.  (FN12) 

IT WAS AGAINST THIS BACKGROUND THAT SEC. 1(6) WAS ENACTED IN 1910 AS
PART OF THE MANN-ELKINS ACT, WHICH ALSO GAVE THE COMMISSION POWER TO
FIND CLASSIFICATIONS UNREASONABLE AND TO PRESCRIBE REASONABLE
CLASSIFICATIONS FOR THE FUTURE.  (FN13)  THE IMMEDIATE GENESIS OF THESE
PROVISIONS SEEMS TO HAVE BEEN A SPECIAL MESSAGE TO CONGRESS BY
PRESIDENT TAFT RECOMMENDING "  ...  THAT THE COMMISSION SHALL BE FULLY
EMPOWERED, BEYOND ANY QUESTION, TO PASS UPON THE CLASSIFICATION OF
COMMODITIES FOR PURPOSES OF FIXING RATES, IN LIKE MANNER AS IT MAY NOW
DO WITH RESPECT TO THE MAXIMUM RATE APPLICABLE TO ANY TRANSPORTATION." 
(FN14) 

DURING THE COURSE OF THE DEBATE ON THE PROPOSED BILL IN THE HOUSE OF
REPRESENTATIVES, CONGRESSMAN RUSSELL, A MEMBER OF THE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, SAID: 

"THE SHIPPER CAN BE EXTORTED FROM; HE CAN BE MADE TO PAY AN UNJUST
RATE JUST AS WELL THROUGH CLASSIFICATION AS HE CAN THROUGH THE FIXING
OF A RATE.  THE CARRIERS CAN PUT AN ARTICLE IN ONE CLASSIFICATION,
SUBJECT TO A GIVEN RATE, AND IF THE INTERSTATE COMMERCE COMMISSION SEES
FIT TO DECLARE THAT RATE UNREASONABLE, AND REDUCE IT, DECLARING WHAT
SHALL BE A REASONABLE RATE TO TAKE ITS PLACE, THE CARRYING CORPORATION
CAN OBTAIN THE SAME BENEFIT AND PUT THE SHIPPER UNDER THE SAME
DISADVANTAGES BY SIMPLY CHANGING THE CLASSIFICATION OF THE ARTICLE." 
(FN15) 

CHAIRMAN MANN STATED THAT "CLASSIFICATION OF FREIGHT IS JUST AS
IMPORTANT AS RATES, BECAUSE BY MOVING A PARTICULAR ARTICLE FROM ONE
CLASS TO ANOTHER YOU AFFECT THE RATES."  (FN16)  HE ADDED THAT "IN THE
COURSE OF TIME UNDOUBTEDLY THE POWER OF THE COMMISSION TO HAVE CONTROL
OF CLASSIFICATIONS WILL LEAD TO GREATER UNIFORMITY AND POSSIBLY TO
COMPLETE UNIFORMITY OF CLASSIFICATIONS."  (FN17) THE SENATE REPORT
ALLUDED ONLY TO THE DOUBT WHICH HAD BEEN RECENTLY CAST UPON THE
COMMISSION'S POWER TO DEAL WITH CLASSIFICATIONS.  (FN18) 

THIS LEGISLATIVE HISTORY MAKES IT APPARENT THAT THE OBJECT OF SEC.
1(6) WAS TO GIVE THE COMMISSION CLEAR POWER TO DEAL WITH THE TWIN
PROBLEMS WHICH HAD ARISEN IN THE ADMINISTRATION OF CLASS RATES - THE
POSSIBILITY OF THEIR MANIPULATION TO AVOID MAXIMUM RATE REGULATION AND
THEIR LACK OF UNIFORMITY.   THOSE PROBLEMS NEVER AFFECTED COMMODITY
RATES, BECAUSE THOSE RATES WERE COMPETITIVELY COMPELLED REDUCTIONS FROM
WHATEVER CLASS RATES WOULD OTHERWISE BE APPLICABLE, AND BECAUSE
STANDARDIZATION OF COMMODITY RATES WOULD HAVE BEEN COMPLETELY
INCONSISTENT WITH THEIR BASIC FUNCTION OF ACCOMMODATING SPECIFIC
PARTICULARIZED COMPETITIVE CONDITIONS.  THE LEGISLATIVE HISTORY THUS
FULLY SUPPORTS THE CONCLUSION THAT THE REACH OF SEC. 1(6) OF THE ACT
WAS CONFINED TO CLASS RATES. 

THIS CONCLUSION IS AMPLY CONFIRMED BY THE PATTERN OF THE COMMISSION'S
DECISIONS SINCE SEC. 1(6) WAS ENACTED.  THE COURSE OF THOSE DECISIONS
MAKES CLEAR THAT THE COMMISSION HAS GIVEN FULL CONSIDERATION TO THE
QUESTION OF WHETHER SEC. 1(6) APPLIES TO ALL-COMMODITY RATES, AND HAS
SQUARELY DECIDED THAT THE SECTION IS INAPPLICABLE.  ALL-COMMODITY RATES
FIRST CAME UNDER SCRUTINY OF THE COMMISSION MORE THAN 25 YEARS AGO.  IN
1937 AND 1938, THE COMMISSION APPROVED ALL-COMMODITY RATES ON FOUR
DIFFERENT OCCASIONS WITHOUT THE SLIGHTEST SUGGESTION THAT THE RATES
WERE SUBJECT TO THE PROVISIONS OF SEC. 1(6).  THE PRINCIPAL CONCERN OF
THE COMMISSION'S INQUIRY IN THESE CASES WAS TO ASCERTAIN WHETHER THE
RATES WERE PREJUDICIAL TO ANY PERSON, LOCALITY, OR DESCRIPTION OF
TRAFFIC.  (FN19)  IN A SIMILAR CASE DECIDED IN 1939, COMMISSIONER
ALLDREDGE FILED A DISSENT EXPRESSING THE VIEW THAT SEC. 1(6) DID APPLY
TO ALL-COMMODITY RATES, AND THAT THE RATES IN QUESTION VIOLATED THAT
TRADITIONALLY BEEN ASSIGNED TO DIFFERENT CATEGORIES UNDER THE CUSTOMARY
CLASSIFICATION CRITERIA.  (FN20)  WITH COMMISSIONER ALLDREDGE'S DISSENT
PUTTING IN ISSUE THE APPLICABILITY OF SEC. 1(6), IT IS CLEAR THAT THE
COMMISSION CONSCIOUSLY REJECTED HIS POSITION.  TWO YEARS LATER,
HOWEVER, THE VIEW TAKEN BY COMMISSIONER ALLDREDGE PREVAILED IN A TWO-TO
ONE ORDER BY DIVISION 3, WHICH STRUCK DOWN ALL-COMMODITY RATES AS
VIOLATIVE OF SEC. 1(6).  (FN21)  WITH THE DECISIONS THUS IN CONFLICT,
THE PROBLEM RECEIVED CONSIDERATION BY THE FULL COMMISSION A YEAR LATER
IN ALL FREIGHT TO PACIFIC COAST, 248 I.C.C. 73.  THERE THE COMMISSION
SQUARELY HELD THAT SEC. 1(6) DOES NOT APPLY TO ALL-COMMODITY RATES. 
ITS REPORT STATED: 

"RESPONDENTS NOW MAINTAIN A FULL LINE OF CLASS RATES GOVERNED BY THE
WESTERN CLASSIFICATION FROM AND TO ALL OF THE POINTS INVOLVED IN THIS
PROCEEDING, AS REQUIRED BY SECTION 1(6) OF THE INTERSTATE COMMERCE
ACT.  THEY ALSO MAINTAIN HUNDREDS OF LOWER RATES AS EXCEPTIONS TO THE
CLASSIFICATION, INCLUDING COMMODITY RATES, THAT ARE NOT SUBJECT TO THE
CLASSIFICATION RATINGS NOR TO RULES AS TO MIXING OF COMMODITIES IN
CARLOADS  ...  . 

     *         *         *         *         * 

"CLASS RATES NORMALLY REFLECT THE MAXIMUM OF REASONABLENESS ON GOODS
FALLING WITHIN THE VARIOUS CLASSES OF TRAFFIC.  COMMODITY RATES ARE
ESTABLISHED, AND NECESSARY OR DESIRABLE EXCEPTIONS TO THE
CLASSIFICATION ARE MADE, WHEN CIRCUMSTANCES AND CONDITIONS SUGGEST THAT
THE CLASS BASIS IS TOO HIGH FOR APPLICATION ON THE TRAFFIC.  WE HAVE
APPROVED THIS BASIS OF RATE MAKING, AND HAVE NEVER REQUIRED COMMODITY
RATES TO CONFORM TO THE RATINGS OF THE CLASSIFICATION."  248 I.C.C., AT
86-87.    IN A SEPARATE CONCURRENCE, COMMISSIONER EASTMAN SAID: 

"AS IS WELL KNOWN, THE CLASSIFICATIONS OF FREIGHT WHICH THE RAILROADS
PUBLISH ARE FOR THE PURPOSE OF GOVERNING THE APPLICATION OF THEIR CLASS
RATES.  THE LATTER ARE USED WHEN NO RATE HAS BEEN PUBLISHED APPLYING
SPECIFICALLY TO THE MOVEMENT IN QUESTION, SUCH SPECIFIC RATES BEING
CALLED COMMODITY RATES.  THE RAILROADS CARRY, OF COURSE, A VAST
MULTITUDE OF SEPARATE AND DISTINCT COMMODITIES, AND THE CLASS RATES ARE
A CONVENIENT DEVICE FOR AVOIDING THE PUBLICATION OF A LIKE MULTITUDE OF
SEPARATE AND DISTINCT RATES  ...  ."  248 I.C.C., AT 88. 

THEREAFTER, THE COMMISSION REJECTED OTHER CHALLENGES TO ALL-COMMODITY
RATES BASED ON SEC. 1(6) UPON THE AUTHORITY OF THE PACIFIC FREIGHT
DECISION, (FN22) AND THE TWO-TO-ONE DECISION BASED ON SEC. 1(6) WHICH
DIVISION 3 HAD PREVIOUSLY RENDERED WAS RECALLED AND DECIDED UPON
ANOTHER GROUND.  (FN23) IN THE YEARS THAT FOLLOWED, THE PACIFIC FREIGHT
CASE WAS REGARDED AS CONTROLLING, AND ALL-COMMODITY RATE CASES WERE
DECIDED WITHOUT REFERENCE TO THE PROVISIONS OF SEC. 1(6).  (FN24)
FINALLY, IT IS SIGNIFICANT THAT IN APPROVING THE TRAILER-ON-FLATCAR
SERVICE INSTITUTED BY THE NEW HAVEN'S RAIL COMPETITORS IN 1958, THE
COMMISSION DID NOT DISCERN ANY PROBLEM CREATED BY SEC. 1(6).  (FN25) 

THUS BOTH THE LEGISLATIVE HISTORY AND THE COURSE OF THE COMMISSION'S
DECISIONS CLEARLY IMPEL THE CONCLUSION THAT SEC. 1(6) DOES NOT APPLY TO
ALL-COMMODITY RATES.  IN REACHING THIS CONCLUSION, WE HARDLY NEED ADD
THAT, AS THE ACT IS STRUCTURED, THESE RATES ARE SUBJECT TO FULL
POLICING BY THE COMMISSION UNDER OTHER PROVISIONS.  IF A COMMODITY RATE
IS TOO HIGH, THE COMMISSION MAY REDUCE IT. (FN26)  IF A COMMODITY RATE
UNJUSTLY DISCRIMINATES AGAINST A SHIPPER, THE COMMISSION MAY ORDER THE
DISCRIMINATION REMOVED.  (FN27)  IF A COMMODITY RATE RESULTS IN AN
UNDUE PREFERENCE IN FAVOR OF OR AN UNREASONABLE PREJUDICE AGAINST ANY
PERSON, LOCALITY, OR DESCRIPTION OF TRAFFIC, THE COMMISSION MAY REQUIRE
THAT APPROPRIATE ADJUSTMENTS BE MADE.  (FN28)  IF A COMMODITY RATE IS
UNREASONABLY LOW, THE COMMISSION MAY ORDER THAT IT BE INCREASED. 
(FN29) 

THE DISTRICT COURT'S OPINION CONTAINS, BY WAY OF DICTA, CONSIDERABLE
DISCUSSION CONCERNING THE CONTINUING VALIDITY OF THE CONCEPT OF VALUE
OF SERVICE AS A FACTOR IN THE SETTING OF RAILROAD FREIGHT RATES, AND
THAT SUBJECT WAS ALSO DISCUSSED IN THE BRIEFS AND ORAL ARGUMENTS IN
THIS COURT.  BUT THE EXTENT TO WHICH VALUE OF SERVICE MAY CONTINUE AS A
VALID ELEMENT IN ASSESSING THE LAWFULNESS OF RATES UNDER THE SECTIONS
OF THE ACT APPLICABLE TO COMMODITY RATES IS A QUESTION WE NEED NOT AND
DO NOT DECIDE.  WE DECIDE ONLY THAT THE DISTRICT COURT WAS CORRECT IN
HOLDING THAT THE ISSUES IN THIS CASE "SHOULD NEVER HAVE BEEN FRAMED
UNDER SEC. 1(6)."  AFFIRMED. 

FN1  "IT IS MADE THE DUTY OF ALL COMMON CARRIERS SUBJECT TO THE
PROVISIONS OF THIS CHAPTER TO ESTABLISH, OBSERVE, AND ENFORCE JUST AND
REASONABLE CLASSIFICATIONS OF PROPERTY FOR TRANSPORTATION, WITH
REFERENCE TO WHICH RATES, TARIFFS, REGULATIONS, OR PRACTICES ARE OR MAY
BE MADE OR PRESCRIBED, AND JUST AND REASONABLE REGULATIONS AND
PRACTICES AFFECTING CLASSIFICATIONS, RATES, OR TARIFFS, THE ISSUANCE,
FORM, AND SUBSTANCE OF TICKETS, RECEIPTS, AND BILLS OF LADING, THE
MANNER AND METHOD OF PRESENTING, MARKING, PACKING, AND DELIVERING
PROPERTY FOR TRANSPORTATION, THE FACILITIES FOR TRANSPORTATION, THE
CARRYING OF PERSONAL, SAMPLE, AND EXCESS BAGGAGE, AND ALL OTHER MATTERS
RELATING TO OR CONNECTED WITH THE RECEIVING, HANDLING, TRANSPORTING,
STORING, AND DELIVERY OF PROPERTY SUBJECT TO THE PROVISIONS OF THIS
CHAPTER WHICH MAY BE NECESSARY OR PROPER TO SECURE THE SAFE AND PROMPT
RECEIPT, HANDLING, TRANSPORTATION, AND DELIVERY OF PROPERTY SUBJECT TO
THE PROVISIONS OF THIS CHAPTER UPON JUST AND REASONABLE TERMS, AND
EVERY UNJUST AND UNREASONABLE CLASSIFICATION, REGULATION, AND PRACTICE
IS PROHIBITED AND DECLARED TO BE UNLAWFUL."  49 U.S.C. SEC. 1(6) (1958
ED.). 

FN2  THE CHARACTERISTICS OF A COMMODITY WHICH ARE GENERALLY
CONSIDERED IN DETERMINING THE CLASSIFICATION TO WHICH IT SHOULD BE
ASSIGNED ARE: 

1.  SHIPPING WEIGHT PER CUBIC FOOT. 

2.  LIABILITY TO DAMAGE. 

3.  LIABILITY TO DAMAGE OTHER COMMODITIES WITH WHICH IT IS
TRANSPORTED. 

4.  PERISHABILITY. 

5.  LIABILITY TO SPONTANEOUS COMBUSTION OR EXPLOSION. 

6.  SUSCEPTIBILITY TO THEFT. 

7.  VALUE PER POUND IN COMPARISON WITH OTHER ARTICLES. 

8.  EASE OR DIFFICULTY IN LOADING OR UNLOADING. 

9.  STOWABILITY. 

10.  EXCESSIVE WEIGHT. 

11.  EXCESSIVE LENGTH. 

12.  CARE OR ATTENTION NECESSARY IN LOADING AND TRANSPORTING. 

13.  TRADE CONDITIONS. 

14.  VALUE OF SERVICE. 

15.  COMPETITION WITH OTHER COMMODITIES TRANSPORTED.  MOTOR CARRIER
RATES IN NEW ENGLAND, 47 M.C.C. 657, 660-661; CLASS RATE INVESTIGATION,
1939, 262 I.C.C. 477, 508; INVESTIGATION AND SUSPENSION DOCKET NO. 76,
25 I.C.C. 442, 472-473. 

FN3  EVERY DAY THE NEW HAVEN WAS DISPATCHING APPROXIMATELY 150 EMPTY
BOXCARS TO CHICAGO AND ST. LOUIS, WITH AN ANNUAL CARRYING CAPACITY OF
3,000,000 TONS. 

FN4  THE RATES DID NOT APPLY TO IMPORT, EXPORT, OR EX-WATER TRAFFIC. 
IN ADDITION, CERTAIN COMMODITIES WERE EXCLUDED, SUCH AS LIVESTOCK,
EXPLOSIVES, SCIENTIFIC EQUIPMENT, AND EASILY DAMAGED GOODS. 

FN5  THE COMMISSION'S REPORT ALSO SPOKE OF THE RATES AS "CONSTITUTING
A DESTRUCTIVE COMPETITIVE PRACTICE IN CONTRAVENTION OF THE NATIONAL
TRANSPORTATION POLICY," BUT IN A BRIEF FILED HERE THE COMMISSION HAS
POINTED OUT THAT THIS STATEMENT WAS "MERELY AN ADJUNCT TO THE
COMMISSION'S RULING THAT THE RATES VIOLATED SECTION 1(6)," AND THAT
THIS CONCLUSION "CANNOT BE SUSTAINED AS AN INDEPENDENT BASIS FOR
DISALLOWING THE RATES, IN THE ABSENCE OF ADDITIONAL FINDINGS." 

FN6  THE COMMISSION AND THE UNITED STATES DID NOT APPEAL.  INSTEAD,
THE COMMISSION REOPENED THE CASE FOR FURTHER HEARINGS, SINCE IT
ENTERTAINED DOUBT AS TO THE ADEQUACY OF ITS FINDINGS.  THOSE FURTHER
HEARINGS HAVE BEEN POSTPONED PENDING RESOLUTION OF THIS APPEAL.  THE
COMMISSION HAS FILED A BRIEF ON THE MERITS, HOWEVER, AGREEING, AS DO
ALL THE PARTIES, THAT THE SEC. 1(6) ISSUE IS NECESSARILY PRESENTED BY
THIS APPEAL.  WE AGREE, AND FURTHER AGREE WITH THE COMMISSION THAT
THERE IS NOTHING IN THE DISTRICT COURT'S JUDGMENT OR IN OUR DISPOSITION
OF THIS APPEAL TO PREVENT FURTHER COMMISSION PROCEEDINGS WITH RESPECT
TO THESE RATES. 

FN7  S. REP. NO. 46, 49TH CONG., 1ST SESS., 188. 

FN8  1 I.C.C. ANN. REP. 30-32 (1887). 

FN9  8 I.C.C. ANN. REP. 38-39.  SEE ALSO 5 I.C.C. ANN. REP. 33. 

FN10  34 STAT. 589, 49 U.S.C. SEC. 15(1) (1958 ED.). 

FN11  JAMES PYLE & SONS V. EAST TENNESSEE, VIRGINIA & GEORGIA R. CO.,
1 I.C.C. 465 (1888); THURBER V. NEW YORK CENTRAL & H.R. CO., 3 I.C.C.
473 (1890); SEE NATIONAL HAY ASSN. V. LAKE SHORE & M.S.R. CO., 9 I.C.C.
264 (1902). 

FN12  INTERSTATE COMMERCE COMMISSION V. LAKE SHORE & M.S.R. CO., 134
F. 942, AFF'D BY AN EQUALLY DIVIDED COURT, 202 U.S. 613.  IN THIS CASE
THE COURT STRUCK DOWN A COMMISSION ORDER COMMANDING THE
RECLASSIFICATION OF HAY AND STRAW TO A LOWER-RATED CLASS. 

FN13  36 STAT. 546, 551, 552, 49 U.S.C. SECS. 1(6), 15(1), 15(7)
(1958 ED.). 

FN14  H.R. REP. NO. 923, 61ST CONG., 2D SESS., 3. 

FN15  45 CONG. REC. 5142. 

FN16  45 CONG. REC. 4578. 

FN17  IBID. 

FN18  THE SENATE REPORT STATED: 

"SOME DOUBT HAS BEEN RAISED AS TO WHETHER, UNDER THE PROVISIONS OF
CLASSIFICATIONS OF FREIGHT AS WELL AS RATES, AND TO MAKE ORDERS DEALING
WITH IMPROPER CLASSIFICATIONS.  (JUDSON ON INTERSTATE COMMERCE, ED. OF
1908, SECS. 209, 210.)  BY SECTION 9 OF THE BILL, THIS DOUBT IS REMOVED
AND THE POWER IS EXPRESSLY VESTED IN THE COMMISSION."  S. REP. NO. 355,
61ST CONG., 2D SESS., 8 (1910).  THE AUTHORITY PRIMARILY RELIED ON BY
THE JUDSON TREATISE WAS THE LAKE SHORE CASE, NOTE 12, SUPRA. 

FN19  FREIGHT FROM BOSTON TO EAST HARTFORD, 223 I.C.C. 421 (DIV. 4,
1937); COMMODITIES BETWEEN CHICAGO, ILL., AND TWIN CITIES, 226 I.C.C.
356 (DIV. 3, 1938); ALL FREIGHT BETWEEN BOSTON & MAINE RAILROAD POINTS,
226 I.C.C. 387 (DIV. 4, 1938); ALL FREIGHT FROM CHICAGO AND ST. LOUIS
TO BIRMINGHAM, 226 I.C.C. 455 (DIV. 3, 1938). 

FN20  ALL FREIGHT BETWEEN HARLEM RIVER, N.Y., AND BOSTON, 234 I.C.C.
673 (DIV. 3, 1939).  SEE ALSO COMMISSIONER ALLDREDGE'S DISSENTS IN THE
FOLLOWING CASES:  ALL FREIGHT FROM CHICAGO AND ST. LOUIS TO SANTA ROSA,
N. MEX., 243 I.C.C. 517 (DIV. 2, 1941); ALL FREIGHT BETWEEN LOS ANGELES
AND ALBUQUERQUE, 28 M.C.C. 161 (DIV. 3, 1941). 

FN21  ALL FREIGHT FROM EASTERN PORTS TO THE SOUTH, 245 I.C.C. 207
(DIV. 3, 1941).  SEE ALSO THE DECISION UNDER SEC. 216(B) OF THE
INTERSTATE COMMERCE ACT BY COMMISSIONERS ALLDREDGE AND JOHNSON IN ALL
FREIGHT FROM CHICAGO AND ST. LOUIS TO EL PASO, TEX., 28 M.C.C. 727
(DIV. 2, 1941). 

FN22  ALL FREIGHT FROM BUTTE, MONT., TO SPOKANE, WASH., 251 I.C.C.
291 (DIV. 2, 1942); ALL FREIGHT RATES TO POINTS IN SOUTHERN TERRITORY,
253 I.C.C. 623 (1942). 

FN23  ALL FREIGHT FROM EASTERN PORTS TO THE SOUTH, 251 I.C.C. 361
(1942). 

FN24  SEE ALL FREIGHT, STRAIGHT CARLOADS, TO AND FROM THE SOUTH, 258
I.C.C. 579 (DIV. 2, 1944); ALL-COMMODITY RATES BETWEEN CALIF. AND ORE.,
WASH., 293 I.C.C. 327 (DIV. 3, 1954). 

FN25  EASTERN CENTRAL MOTOR CARRIERS ASSN. V. BALTIMORE & O.R. CO.,
314 I.C.C. 5, 48-49.  THE TRAILER-ON-FLATCAR RATES, UNLIKE THE ALL
COMMODITY RATES INVOLVED IN THE PRESENT CASE, ARE SUBJECT TO A MIXING
RULE REQUIRING THAT THE LADING CONSIST OF AT LEAST TWO COMMODITIES, NO
ONE OF WHICH SHALL EXCEED 60% OF THE TOTAL VOLUME OF THE LADING.  BUT
THE NEW HAVEN POINTS OUT THAT THIS MIXING RULE IS SATISFIED WHENEVER
TWO STRAIGHT TRAILERLOADS, EACH CONTAINING A DIFFERENT COMMODITY, ARE
TENDERED AT THE SAME LOADING PLATFORM UNDER A SINGLE BILL OF LADING,
EVEN THOUGH THEY MAY BE CONSIGNED BY DIFFERENT SHIPPERS AND DESTINED
FOR DIFFERENT CONSIGNEES. 

FN26  49 U.S.C. SECS. 1(5) AND 15(1) (1958 ED.). 

FN27  49 U.S.C. SECS. 2 AND 15(1) (1958 ED.). 

FN28  49 U.S.C. SECS. 3(1) AND 15(1) (1958 ED.). 

FN29  49 U.S.C. SECS. 1(5), 15A(2), 15A(3), AND 15(1) (1958 ED.). 

MR. JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK AND
MR. JUSTICE BRENNAN JOIN, DISSENTING. 

IN MY VIEW, THE RECORD IN THIS CASE IS INADEQUATE TO SUPPORT THE
ACTION TAKEN BY THE COMMISSION AND I WOULD VACATE THE JUDGMENT BELOW
AND REMAND TO THE COMMISSION FOR FURTHER PROCEEDINGS.  I DISSENT,
HOWEVER, FROM THE COURT'S CATEGORICAL RULING WHICH IN ANY AND ALL
CIRCUMSTANCES BARS THE APPLICATION OF SEC. 1(6) TO ANY SET OF RATES
WHICH BEARS A COMMODITY RATE LABEL. 

OBSERVE, AND ENFORCE JUST AND REASONABLE CLASSIFICATIONS OF PROPERTY
FOR TRANSPORTATION."  THE COURT SEEMS TO ACCEPT THE ACT OF EXCLUDING
COMMODITY RATES FROM THIS BROAD IMPERATIVE AS WELL WITHIN THE
MAINSTREAM OF COMMISSION FUNCTIONS.  I HAVE GREAT DIFFICULTY COMING TO
ANY DIFFERENT ANSWER CONCERNING THE COMMISSION'S TASK WITH RESPECT TO
SEC. 1(6) NOW THAT THE COMMISSION HAS CHANGED ITS MIND, OR MODIFIED ITS
VIEWS, AND BELIEVES IT BEST SERVES TRANSPORTATION POLICY AND THE GOAL
OF JUST AND REASONABLE RATES TO SUBJECT AT LEAST SOME COMMODITY RATES
TO SCRUTINY UNDER SEC. 1(6). 

IT IS NO ANSWER TO SAY THAT CONGRESS INTENDED SEC. 1(6) TO REGULATE
ONLY CLASS RATES, FOR THE COMMISSION AT THIS POINT OBVIOUSLY THINKS
SOME COMMODITY RATES ARE IN FACT CLASS RATES, PARTICULARLY A RATE
WHICH, AS IN THIS CASE, APPLIES TO AN ENORMOUS RANGE OF TRAFFIC BUT AT
THE SAME TIME EXCLUDES MANY SPECIFIC COMMODITIES AND GROUPS THEREOF. 

NOR WILL IT DO TO SAY THAT IF THE PAST DECISIONS OF THE COMMISSION
ARE TO BE CHANGED, THE JOB SHOULD BE LEFT TO CONGRESS.  THIS IS AN
ERRONEOUS VIEW.  IF THERE IS A TASK FOR CONGRESS, IT IS THE ONE THE
COURT HAS ITSELF PERFORMED.  THE DISSENTING COMMISSIONERS, WITH WHOM
THE COURT ESSENTIALLY AGREES, FELT CONSTRAINED TO ACKNOWLEDGE THAT
FURTHER EROSION OF THE PRINCIPLES OF CLASSIFICATION MIGHT WELL BE IN
THE PROVINCE OF CONGRESS BUT DEFENDED THEIR VIEWS AS VIGOROUS AND WISE
TRANSPORTATION POLICY WITHIN THE REALM OF PROPER ADMINISTRATIVE
ACTION.  THEIR DIFFERENCE WITH THE MAJORITY OF THE COMMISSION WAS OVER
POLICY, AND IT IS PRECISELY THIS AREA WHICH IT SEEMS TO ME THE COURT
INVADES.  OUR TASK ON REVIEW IS A FAR MORE LIMITED ONE.  WITH ALL DUE
RESPECT, I DISSENT. 
..END :
















PIANO & MUSICAL INSTRUMENT WORKERS UNION, LOCAL NO. 2549, UNITED
BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO V. W.W. KIMBALL
CO. 379 U.S. 357 


NO. 535.  DECIDED DECEMBER 14, 1964 - CERTIORARI GRANTED AND JUDGMENT
REVERSED - REPORTED BELOW: 333 F.2D 761. 


PIANO & MUSICAL INSTRUMENT WORKERS UNION, LOCAL NO. 2549, UNITED
BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO V. W.W. KIMBALL
CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  STEELWORKERS V. AMERICAN MANUFACTURING CO., 363 U.S. 564,
AND WILEY & SONS, INC. V. LIVINGSTON, 376 U.S. 543. 
..END :











GREEN V. BOMAR 379 U.S. 358 


NO. 87, MISC.  DECIDED DECEMBER 14, 1964.  - CERTIORARI GRANTED,
JUDGMENT VACATED AND CASE REMANDED - REPORTED BELOW:  329 F.2D 796. 


GREEN V. BOMAR, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE FOR A HEARING IN LIGHT OF TOWNSEND V. SAIN, 372
U.S. 293. 
..END :













CALHOON, OR PETERS V. HARVEY 379 U.S. 134 


NO. 17.  ARGUED OCTOBER 20, 1964.  - DECIDED DECEMBER 7, 1964.  - 324
F.2D 486, REVERSED. 


UNDER PETITIONER UNION'S BYLAWS MEMBERS COULD NOMINATE ONLY THEMSELVES
TO OFFICE, ELIGIBILITY FOR WHICH UNDER THE NATIONAL CONSTITUTION WAS
LIMITED BY SPECIFIED PROVISIONS.  CHARGING THAT THESE PROVISIONS, WHICH
THEY DID NOT MEET, DEPRIVED THEM OF "EQUAL RIGHTS" TO NOMINATE
CANDIDATES UNDER TITLE I, SEC. 101(A)(1), OF THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT OF 1959 (LMRDA), RESPONDENT UNION MEMBERS
SUED UNDER SEC. 102 IN THE DISTRICT COURT TO ENJOIN USE OF THE UNION'S
CHALLENGED ELECTORAL SYSTEM.  THAT COURT DISMISSED THE COMPLAINT FOR
WANT OF JURISDICTION.  THE COURT OF APPEALS REVERSED, HOLDING THAT THE
COMBINED EFFECT OF THE ELIGIBILITY REQUIREMENTS UNDER TITLE IV, SEC.
401(E), AND THE RESTRICTION TO SELF-NOMINATION DETERMINED WHETHER SEC.
101(A)(1) HAD BEEN VIOLATED.  HELD: 

1.  A FEDERAL DISTRICT COURT HAS NO JURISDICTION OVER A SUIT BY UNION
MEMBERS UNDER SEC. 102 OF THE LMRDA CHARGING THAT THE UNION'S
ELIGIBILITY QUALIFICATIONS DEPRIVED THEM OF THE RIGHT TO NOMINATE
CANDIDATES GUARANTEED BY SEC. 101(A)(1), THAT PROVISION BEING DIRECTED
SOLELY AGAINST DISCRIMINATION IN THE UNION'S ELECTORAL PROCESS ITSELF. 
PP. 138-139. 

2.  ELIGIBILITY REQUIREMENTS ARE GOVERNED BY TITLE IV, SEC. 401(E). 
THE EXCLUSIVE REMEDY, WITH EXCEPTIONS NOT HERE RELEVANT, FOR PROTECTING
RIGHTS THEREUNDER IS A POST-ELECTION SUIT BY THE SECRETARY OF LABOR
FOLLOWING COMPLAINT OF A MEMBER WHO HAS EXHAUSTED HIS UNION REMEDIES AS
REQUIRED BY THE ACT AND AN INVESTIGATION BY THE SECRETARY SHOWING
PROBABLE CAUSE OF A VIOLATION.  PP. 139-141. 

CALHOON, PRESIDENT, OR PETERS, SECRETARY-TREASURER OF DISTRICT NO. 1,
NATIONAL MARINE ENGINEERS' BENEFICIAL ASSOCIATION, AFL-CIO V. HARVEY ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES IMPORTANT QUESTIONS CONCERNING THE POWERS OF THE
SECRETARY OF LABOR AND FEDERAL COURTS TO PROTECT RIGHTS OF EMPLOYEES
GUARANTEED BY THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF
1959.  (FN1) 

THE RESPONDENTS, THREE MEMBERS OF DISTRICT NO. 1, NATIONAL MARINE
ENGINEERS' BENEFICIAL ASSOCIATION, FILED A COMPLAINT IN FEDERAL
DISTRICT COURT AGAINST THE UNION, ITS PRESIDENT AND ITS SECRETARY
TREASURER, ALLEGING THAT CERTAIN PROVISIONS OF THE UNION'S BYLAWS AND
NATIONAL CONSTITUTION VIOLATED THE ACT IN THAT THEY INFRINGED "THE
RIGHT OF MEMBERS OF DEFENDANT DISTRICT NO. 1, NMEBA, TO NOMINATE
CANDIDATES IN ELECTIONS OF DEFENDANT, WHICH RIGHT IS GUARANTEED TO EACH
MEMBER OF DEFENDANT, AND TO EACH PLAINTIFF, BY SECTION 101(A)(1) OF THE
LMRDA  ...  ."  (FN2)  IT WAS ALLEGED THAT SEC. 102 OF TITLE I OF THE
ACT GAVE THE DISTRICT COURT JURISDICTION TO ADJUDICATE THE
CONTROVERSY.  (FN3)  THE UNION BYLAWS COMPLAINED OF DEPRIVED A MEMBER
OF THE RIGHT TO NOMINATE ANYONE FOR OFFICE BUT HIMSELF.  THE NATIONAL
CONSTITUTION IN TURN PROVIDED THAT NO MEMBER COULD BE ELIGIBLE FOR
NOMINATION OR ELECTION TO A FULL-TIME ELECTIVE OFFICE UNLESS HE HAD
BEEN A MEMBER OF THE NATIONAL UNION FOR FIVE YEARS AND HAD SERVED 180
DAYS OR MORE OF SEATIME IN EACH OF TWO OF THE PRECEEDING THREE YEARS ON
VESSELS COVERED BY COLLECTIVE BARGAINING AGREEMENTS WITH THE NATIONAL
OR ITS SUBSIDIARY BODIES.  ON THE BASIS OF THESE ALLEGATIONS
RESPONDENTS ASKED THAT THE UNION BE ENJOINED FROM PREPARING FOR OR
CONDUCTING ANY ELECTION UNTIL IT REVISED ITS SYSTEM OF ELECTIONS SO AS
TO AFFORD EACH OF ITS MEMBERS A FAIR OPPORTUNITY TO NOMINATE ANY
PERSONS "MEETING FAIR AND REASONABLE ELIGIBILITY REQUIREMENTS FOR ANY
OR ALL OFFICES TO BE FILLED BY SUCH ELECTION."  (FN4) 

THE UNION MOVED TO DISMISS THE COMPLAINT ON THE GROUNDS THAT (1) THE
COURT LACKED JURISDICTION OVER THE SUBJECT MATTER, AND (2) THE
COMPLAINT FAILED TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED. 
THE DISTRICT COURT DISMISSED FOR WANT OF "JURISDICTION," (FN5) HOLDING
THAT THE ALLEGED CONDUCT OF THE UNION, EVEN IF TRUE, FAILED TO SHOW A
DENIAL OF THE EQUAL RIGHTS OF ALL MEMBERS OF THE UNION TO VOTE FOR OR
NOMINATE CANDIDATES GUARANTEED BY SEC. 101(A)(1) OF TITLE I OF THE ACT,
SO AS TO GIVE THE DISTRICT COURT JURISDICTION OF THE CONTROVERSY UNDER
SEC. 102.  THE ALLEGATIONS, SAID THE COURT, SHOWED AT MOST IMPOSITION
OF QUALIFICATIONS OF ELIGIBILITY FOR NOMINATION AND ELECTION SO
RESTRICTIVE THAT THEY MIGHT VIOLATE SEC. 401(E) OF TITLE IV BY DENYING
MEMBERS A REASONABLE OPPORTUNITY TO NOMINATE AND VOTE FOR CANDIDATES. 
(FN6)  THE DISTRICT COURT FURTHER HELD THAT IT COULD NOT EXERCISE
JURISDICTION TO PROTECT SEC. 401(E) RIGHTS BECAUSE SEC. 402(A) (FN7) OF
TITLE IV PROVIDES A REMEDY, DECLARED BY SEC. 403 TO BE "EXCLUSIVE,"
AUTHORIZING MEMBERS TO VINDICATE SUCH RIGHTS BY CHALLENGING ELECTIONS
AFTER THEY HAVE BEEN HELD, (FN8) AND THEN ONLY BY (1) FIRST EXHAUSTING
ALL REMEDIES AVAILABLE WITH THE UNION, (2) FILING A COMPLAINT WITH THE
SECRETARY OF LABOR, WHO (3) MAY, AFTER INVESTIGATING THE VIOLATION
ALLEGED IN THE COMPLAINT, BRING SUIT IN A UNITED STATES DISTRICT COURT
TO ATTACK THE VALIDITY OF THE ELECTION.  THE COURT OF APPEALS REVERSED,
HOLDING THAT "THE COMPLAINT ALLEGED A VIOLATION OF SEC. 101(A)(1) AND
THAT FEDERAL JURISDICTION EXISTED UNDER SEC. 102."  324 F.2D 486, 487. 
(FN9)  BECAUSE OF THE IMPORTANCE OF THE QUESTIONS PRESENTED AND
CONFLICTING VIEWS IN THE COURTS OF APPEALS AND THE DISTRICT COURTS,
(FN10) WE GRANTED CERTIORARI.  375 U.S. 991. 

                                  I. 

JURISDICTION OF THE DISTRICT COURT UNDER SEC. 102 OF TITLE I DEPENDS
ENTIRELY UPON WHETHER THIS COMPLAINT SHOWED A VIOLATION OF RIGHTS
GUARANTEED BY SEC. 101(A)(1), FOR WE DISAGREE WITH THE COURT OF
APPEALS' HOLDING THAT JURISDICTION UNDER SEC. 102 CAN BE UPHELD BY
RELIANCE IN WHOLE OR IN PART ON ALLEGATIONS WHICH IN SUBSTANCE CHARGE A
BREACH OF TITLE IV RIGHTS.  AN ANALYSIS AND UNDERSTANDING OF THE
MEANING OF SEC. 101(A)(1) AND OF THE CHARGES OF THE COMPLAINT ARE
THEREFORE ESSENTIAL TO A DETERMINATION OF THIS ISSUE.  RESPONDENTS
CHARGE THAT THE BYLAWS AND CONSTITUTIONAL PROVISIONS REFERRED TO ABOVE
INFRINGED THEIR RIGHT GUARANTEED BY SEC. 101(A)(1) TO NOMINATE
CANDIDATES.  THE RESULT OF THEIR ALLEGATIONS HERE, HOWEVER, IS AN
ATTEMPT TO SWEEP INTO THE AMBIT OF THEIR RIGHT TO SUE IN FEDERAL COURT
IF THEY ARE DENIED AN EQUAL OPPORTUNITY TO NOMINATE CANDIDATES UNDER
SEC. 101(A)(1), A RIGHT TO SUE IF THEY ARE NOT ALLOWED TO NOMINATE
ANYONE THEY CHOOSE REGARDLESS OF HIS ELIGIBILITY AND QUALIFICATIONS
UNDER UNION RESTRICTIONS.  BUT TITLE IV, NOT TITLE I, SETS STANDARDS
FOR ELIGIBILITY AND QUALIFICATIONS OF CANDIDATES AND OFFICIALS AND
PROVIDES ITS OWN SEPARATE AND DIFFERENT ADMINISTRATIVE AND JUDICIAL
PROCEDURE FOR CHALLENGING THOSE STANDARDS.  AND THE EQUAL-RIGHTS
LANGUAGE OF SEC. 101(A)(1) WOULD HAVE TO BE STRETCHED FAR BEYOND ITS
NORMAL MEANING TO HOLD THAT IT GUARANTEES MEMBERS NOT JUST A RIGHT TO
"NOMINATE CANDIDATES," BUT A RIGHT TO NOMINATE ANYONE, WITHOUT REGARD
TO VALID UNION RULES.  ALL THAT SEC. 101(A)(1) GUARANTEES IS THAT: 

"EVERY MEMBER OF A LABOR ORGANIZATION SHALL HAVE EQUAL RIGHTS AND
PRIVILEGES  ...  TO NOMINATE CANDIDATES, TO VOTE IN ELECTIONS OR
REFERENDUMS OF THE LABOR ORGANIZATION  ...  AND TO PARTICIPATE IN THE
DELIBERATIONS AND VOTING  ...  SUBJECT TO REASONABLE RULES AND
REGULATIONS IN SUCH ORGANIZATION'S CONSTITUTION AND BYLAWS." 

PLAINLY, THIS IS NO MORE THAN A COMMAND THAT MEMBERS AND CLASSES OF
MEMBERS SHALL NOT BE DISCRIMINATED AGAINST IN THEIR RIGHT TO NOMINATE
AND VOTE.  AND CONGRESS CAREFULLY PRESCRIBED THAT EVEN THIS RIGHT
AGAINST DISCRIMINATION IS "SUBJECT TO REASONABLE RULES AND REGULATIONS"
BY THE UNION.  THE COMPLAINING UNION MEMBERS HERE HAVE NOT BEEN
DISCRIMINATED AGAINST IN ANY WAY AND HAVE BEEN DENIED NO PRIVILEGE OR
RIGHT TO VOTE OR NOMINATE WHICH THE UNION HAS GRANTED TO OTHERS.  THEY
HAVE INDEED TAKEN FULL ADVANTAGE OF THE UNIFORM RULE LIMITING
NOMINATIONS BY NOMINATING THEMSELVES FOR OFFICE.  (FN11)  IT IS TRUE
THAT THEY WERE DENIED THEIR REQUEST TO BE CANDIDATES, BUT THAT DENIAL
WAS NOT A DISCRIMINATION AGAINST THEIR RIGHT TO NOMINATE, SINCE THE
SAME QUALIFICATIONS WERE REQUIRED EQUALLY OF ALL MEMBERS.  WHETHER THE
ELIGIBILITY REQUIREMENTS SET BY THE UNION'S CONSTITUTION AND BYLAWS
WERE REASONABLE AND VALID IS A QUESTION SEPARATE AND DISTINCT FROM
WHETHER THE RIGHT TO NOMINATE ON AN EQUAL BASIS GIVEN BY SEC. 101(A)(1)
WAS VIOLATED.  THE DISTRICT COURT THEREFORE WAS WITHOUT JURISDICTION TO
GRANT THE RELIEF REQUESTED HERE UNLESS, AS THE COURT OF APPEALS HELD,
THE "COMBINED EFFECT OF THE ELIGIBILITY REQUIREMENTS AND THE
RESTRICTION TO SELF-NOMINATION" IS TO BE CONSIDERED IN DETERMINING
WHETHER SEC.  101(A)(1) HAS BEEN VIOLATED.  (FN12)

                                       II. 

WE HOLD THAT POSSIBLE VIOLATIONS OF TITLE IV OF THE ACT REGARDING
ELIGIBILITY ARE NOT RELEVANT IN DETERMINING WHETHER OR NOT A DISTRICT
COURT HAS JURISDICTION UNDER SEC. 102 OF TITLE I OF THE ACT.  TITLE IV
SETS UP A STATUTORY SCHEME GOVERNING THE ELECTION OF UNION OFFICERS,
FIXING THE TERMS DURING WHICH THEY HOLD OFFICE, REQUIRING THAT
ELECTIONS BE BY SECRET BALLOT, REGULATING THE HANDLING OF CAMPAIGN
LITERATURE, REQUIRING A REASONABLE OPPORTUNITY FOR THE NOMINATION OF
CANDIDATES, AUTHORIZING UNIONS TO FIX "REASONABLE QUALIFICATIONS
UNIFORMLY IMPOSED" FOR CANDIDATES, AND ATTEMPTING TO GUARANTEE FAIR
UNION ELECTIONS IN WHICH ALL THE MEMBERS ARE ALLOWED TO PARTICIPATE. 
METHOD FOR PROTECTING TITLE IV RIGHTS, BY PERMITTING AN INDIVIDUAL
MEMBER TO FILE A COMPLAINT WITH THE SECRETARY OF LABOR CHALLENGING THE
VALIDITY OF ANY ELECTION BECAUSE OF VIOLATIONS OF TITLE IV.  UPON
COMPLAINT THE SECRETARY INVESTIGATES AND IF HE FINDS PROBABLE CAUSE TO
BELIEVE THAT TITLE IV HAS BEEN VIOLATED, HE MAY FILE SUIT IN THE
APPROPRIATE COURT.  IT IS APPARENT THAT CONGRESS DECIDED TO UTILIZE THE
SPECIAL KNOWLEDGE AND DISCRETION OF THE SECRETARY OF LABOR IN ORDER
BEST TO SERVE THE PUBLIC INTEREST.  CF. SAN DIEGO BUILDING TRADES
COUNCIL V. GARMON, 359 U.S. 236, 242.  IN SO DOING CONGRESS, WITH ONE
EXCEPTION NOT HERE RELEVANT, (FN13) DECIDED NOT TO PERMIT INDIVIDUALS
TO BLOCK OR DELAY UNION ELECTIONS BY FILING FEDERAL-COURT SUITS FOR
VIOLATIONS OF TITLE IV.  RELIANCE ON THE DISCRETION OF THE SECRETARY IS
IN HARMONY WITH THE GENERAL CONGRESSIONAL POLICY TO ALLOW UNIONS GREAT
LATITUDE IN RESOLVING THEIR OWN INTERNAL CONTROVERSIES, AND, WHERE THAT
FAILS, TO UTILIZE THE AGENCIES OF GOVERNMENT MOST FAMILIAR WITH UNION
PROBLEMS TO AID IN BRINGING ABOUT A SETTLEMENT THROUGH DISCUSSION
BEFORE RESORT TO THE COURTS.  WITHOUT SETTING OUT THE LENGTHY
LEGISLATIVE HISTORY WHICH PRECEDED THE PASSAGE OF THIS MEASURE, IT IS
SUFFICIENT TO SAY THAT WE ARE SATISFIED THAT THE ACT ITSELF SHOWS
CLEARLY BY ITS STRUCTURE AND LANGUAGE THAT THE DISPUTES HERE, BASICALLY
RELATING AS THEY DO TO ELIGIBILITY OF CANDIDATES FOR OFFICE, FALL
SQUARELY WITHIN TITLE IV OF THE ACT AND ARE TO BE RESOLVED BY THE
ADMINISTRATIVE AND JUDICIAL PROCEDURES SET OUT IN THAT TITLE. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND
THAT OF THE DISTRICT COURT IS AFFIRMED.  IT IS SO ORDERED. 

FN1  73 STAT. 519, 29 U.S.C. SEC. 401 ET SEQ. (1958 ED., SUPP. V). 

FN2  "EVERY MEMBER OF A LABOR ORGANIZATION SHALL HAVE EQUAL RIGHTS
AND PRIVILEGES WITHIN SUCH ORGANIZATION TO NOMINATE CANDIDATES, TO VOTE
IN ELECTIONS OR REFERENDUMS OF THE LABOR ORGANIZATION, TO ATTEND
MEMBERSHIP MEETINGS, AND TO PARTICIPATE IN THE DELIBERATIONS AND VOTING
UPON THE BUSINESS OF SUCH MEETINGS, SUBJECT TO REASONABLE RULES AND
REGULATIONS IN SUCH ORGANIZATION'S CONSTITUTION AND BYLAWS."  73 STAT.
522, 29 U.S.C. SEC. 411(A)(1) (1958 ED., SUPP. V). 

FN3  73 STAT. 523, 29 U.S.C. SEC. 412 (1958 ED., SUPP. V). 

FN4  THE COMPLAINT ALSO ASKED FOR DAMAGES. 

FN5  221 F. SUPP. 545, 550. 

FN6  "IN ANY ELECTION REQUIRED BY THIS SECTION WHICH IS TO BE HELD BY
SECRET BALLOT A REASONABLE OPPORTUNITY SHALL BE GIVEN FOR THE
NOMINATION OF CANDIDATES AND EVERY MEMBER IN GOOD STANDING SHALL BE
ELIGIBLE TO BE A CANDIDATE AND TO HOLD OFFICE (SUBJECT TO SECTION 504
OF THIS TITLE AND TO REASONABLE QUALIFICATIONS UNIFORMLY IMPOSED) AND
SHALL HAVE THE RIGHT TO VOTE FOR OR OTHERWISE SUPPORT THE CANDIDATE OR
CANDIDATES OF HIS CHOICE  ...  ."  73 STAT. 533, 29 U.S.C. SEC. 481(E)
(1958 ED., SUPP. V). 

FN7  73 STAT. 534, 29 U.S.C. SEC. 482(A) (1958 ED., SUPP. V). 

FN8  SECTION 403 PROVIDES ALSO THAT "EXISTING RIGHTS AND REMEDIES TO
ENFORCE THE CONSTITUTION AND BYLAWS OF A LABOR ORGANIZATION WITH
RESPECT TO ELECTIONS PRIOR TO THE CONDUCT THEREOF SHALL NOT BE AFFECTED
...  ."  73 STAT. 534, 29 U.S.C. SEC. 483 (1958 ED., SUPP. V). 

FN9  WHILE BOTH COURTS BELOW REFERRED TO THE QUESTION BEFORE US AS
"JURISDICTIONAL," IT IS OBVIOUS THAT THE COURTS DIFFERED AS TO WHETHER
THE FACTS ALLEGED IN THE COMPLAINT STATED A "CAUSE OF ACTION," THEREBY
RAISING SOME OF THE SAME PROBLEMS DISCUSSED IN BELL V. HOOD, 327 U.S.
678.  THAT QUESTION NEED NOT CONCERN US HERE, HOWEVER. 

FN10  SEE, E.G., MAMULA V. UNITED STEELWORKERS, 304 F.2D 108 (C.A. 3D
CIR.), CERT. DENIED, 371 U.S. 823; BECKMAN V. INTERNATIONAL ASSN. OF
BRIDGE WORKERS, 314 F.2D 848 (C.A. 7TH CIR.); ROBINS V. RARBACK, 325
F.2D 929 (C.A.2D CIR.), PETITION FOR CERT. PENDING, NNO.  11, MISC.,
1964 TERM; JOHNSON V. SAN DIEGO WAITERS & BARTENDERS UNION, 190 F.
SUPP. 444 (D.C.S.D. CAL.); COLPO V. HIGHWAY TRUCK DRIVERS & HELPERS,
201 F. SUPP. 307 (D.C.D. DEL.), VACATED AS MOOT, 305 F.2D 362 (C.A. 3D
CIR.), CERT. DENIED, 371 U.S. 890; JACKSON V. INTERNATIONAL
LONGSHOREMEN'S ASSN., 212 F. SUPP. 79 (D.C.E.D. LA.). 

FN11  IT APPEARS THAT THE PRESENT UNION PRACTICE IS TO PERMIT
CANDIDATES TO BE NOMINATED BY OTHER UNION MEMBERS, BUT THAT CHANGE IN
PROCEDURE DOES NOT AFFECT OUR DECISION. 

FN12  324 F.2D, AT 489. 

FN13  SECTION 401(C) OF THE ACT PERMITS SUITS PRIOR TO ELECTION IN
THE UNITED STATES DISTRICT COURTS BY ANY BONA FIDE CANDIDATE FOR UNION
OFFICE TO ENFORCE THE RIGHTS, GUARANTEED BY THAT SECTION, TO EQUAL
TREATMENT IN THE DISTRIBUTION OF CAMPAIGN LITERATURE AND ACCESS TO
MEMBERSHIP LISTS.  73 STAT. 532, 29 U.S.C. SEC. 481(C) (1958 ED., SUPP.
V). 

MR. JUSTICE DOUGLAS WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS
FOR THE REASONS STATED IN ITS OPINION AS REPORTED IN 324 F.2D 486. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN JOINS, CONCURRING. 

THIS CASE MARKS THE FIRST INTERPRETATION BY THIS COURT OF THE
SIGNIFICANT CHANGES WROUGHT BY THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959 INCREASING FEDERAL SUPERVISION OF INTERNAL UNION
AFFAIRS.  AT ISSUE ARE SUBTLE QUESTIONS CONCERNING THE INTERPLAY
BETWEEN TITLE I AND TITLE IV OF THAT ACT.  IN PART, BOTH SEEM TO DEAL
WITH THE SAME SUBJECT MATTER:  TITLE I GUARANTEES "EQUAL RIGHTS AND
PRIVILEGES  ...  TO NOMINATE CANDIDATES"; TITLE IV PROVIDES THAT "A
REASONABLE OPPORTUNITY SHALL BE GIVEN FOR THE NOMINATION OF
CANDIDATES."  WHERE THE TWO TITLES OF THE LEGISLATION DIFFER MOST
SUBSTANTIALLY IS IN THE REMEDIES THEY PROVIDE.  IF A TITLE I RIGHT IS
AT ISSUE, THE ALLEGEDLY AGGRIEVED UNION MEMBER HAS DIRECT, VIRTUALLY
IMMEDIATE RECOURSE TO A FEDERAL COURT TO OBTAIN AN ADJUDICATION OF HIS
CLAIM AND AN INJUNCTION IF HIS COMPLAINT HAS MERIT.  73 STAT. 523, 29
U.S.C. SEC. 412 (1958 ED., SUPP. V).  VINDICATION OF CLAIMS UNDER TITLE
IV MAY BE MUCH MORE ONEROUS.  FEDERAL-COURT SUITS CAN BE BROUGHT ONLY
BY THE SECRETARY OF LABOR, AND THEN, ONLY AFTER THE ELECTION HAS BEEN
HELD.  AN ADDITIONAL BARRIER IS THUS PLACED BETWEEN THE UNION MEMBER
AND THE FEDERAL COURT.  REMEDIES SHAPE THE SIGNIFICANCE OF RIGHTS, AND
I THINK THE COURT TOO CASUALLY FORECLOSES THE DIRECT ACCESS TO A
FEDERAL COURT WHICH THE COURT OF APPEALS HELD WAS GIVEN THESE
RESPONDENTS BY CONGRESS. 

AT THE TIME THIS CASE WAS BROUGHT, DISTRICT 1 OF THE NATIONAL MARINE
ENGINEERS' BENEFICIAL ASSOCIATION (NMEBA) HAD TWO RULES OF DIRECT
RELEVANCE HERE GOVERNING SELECTION OF CANDIDATES FOR ELECTION TO UNION
OFFICE.  ONE RULE, OF LONG STANDING IN THE UNION, PRESCRIBED THAT SELF
NOMINATION WAS THE ONLY MANNER BY WHICH A NAME COULD BE PLACED BEFORE
THE MEMBERSHIP FOR ELECTION TO UNION OFFICE.  THE SECOND RULE, ADOPTED
SEVEN MONTHS BEFORE THIS ELECTION WAS SCHEDULED TO OCCUR, SEVERELY
LIMITED ELIGIBILITY FOR OFFICE BY REQUIRING THAT PROSPECTIVE OFFICERS
MUST HAVE BELONGED TO THE NATIONAL UNION FOR FIVE YEARS AND SERVED 180
OR MORE DAYS OF SEA DUTY IN EACH OF TWO YEARS DURING THE THREE-YEAR
PERIOD BEFORE THE ELECTION.  (FN1)  ACCORDING TO THE THREE UNION
MEMBERS WHO BROUGHT THIS ACTION, THE COMBINATION OF THESE RULES
UNREASONABLY LIMITED THEIR RIGHT TO NOMINATE.  THEY ALLEGED THAT,
EXCEPT FOR THOSE MEMBERS OF THE UNION WHO FULFILLED THE STRICT
ELIGIBILITY REQUIREMENTS, THE SELF-NOMINATION RULE EMPTIED OF ALL
MEANING THE EQUAL RIGHT TO NOMINATE.  TO BE SURE, THE "RIGHT TO
NOMINATE" CONTINUED, BUT, THEY SAY, FOR THE COUNTLESS UNION MEMBERS
RENDERED INELIGIBLE FOR OFFICE BY THE NEW SEA-DUTY RULE, THE PRIVILEGE
OF TURNING IN ONE'S NAME FOR PROSPECTIVE CANDIDACY WAS MEANINGLESS. 

THE COURT PRECLUDES THE DISTRICT COURT FROM ASSERTING JURISDICTION
OVER THIS COMPLAINT BY FOCUSING ON THE FACT THAT ONE OF THE IMPOSED
RESTRICTIONS SPEAKS IN TERMS OF ELIGIBILITY.  AND SINCE THESE ARE
"POSSIBLE VIOLATIONS OF TITLE IV OF THE ACT REGARDING ELIGIBILITY" THEY
"ARE NOT RELEVANT IN DETERMINING WHETHER OR NOT A DISTRICT COURT HAS
JURISDICTION UNDER SEC. 102 OF TITLE I OF THE ACT."  BY THIS REASONING,
THE COURT FORECLOSES EARLY ADJUDICATION OF CLAIMS CONCERNING
PARTICIPATION IN THE ELECTION PROCESS.  BUT THERE ARE OCCASIONS WHEN
ELIGIBILITY PROVISIONS CAN INFRINGE UPON THE RIGHT TO NOMINATE.  HAD
THE NMEBA ISSUED A REGULATION THAT ONLY JESSEE CALHOON WAS ELIGIBLE FOR
OFFICE, NO ONE COULD PLACE GREAT STORE ON THE RIGHT TO SELF-NOMINATION
LEFT TO THE REST OF THE MEMBERSHIP.  THIS COURT LONG AGO RECOGNIZED THE
SUBTLE WAYS BY WHICH ELECTION RIGHTS CAN BE REMOVED THROUGH
DISCRIMINATION AT A LESS VISIBLE STAGE OF THE POLITICAL PROCESS.  THE
DECISIONS IN THE TEXAS PRIMARY CASES WERE FOUNDED ON THE BELIEF THAT
THE EQUAL RIGHT TO VOTE WAS IMPAIRED WHERE DISCRIMINATION EXISTED IN
THE METHOD OF NOMINATION.  SMITH V. ALLWRIGHT, 321 U.S. 649; NIXON V.
HERNDON, 273 U.S. 536.  SEE UNITED STATES V. CLASSIC, 313 U.S. 299.  NO
LESS IS THE EQUAL RIGHT TO NOMINATE INFRINGED WHERE ONEROUS BURDENS
DRASTICALLY LIMIT THE CANDIDATES AVAILABLE FOR NOMINATION.  IN
SCRUTINIZING DEVICES DESIGNED TO ERODE THE FRANCHISE, THE COURT HAS
SHOWN IMPATIENCE WITH ARGUMENTS FOUNDED IN THE FORM OF THE DEVICE. 
GOMILLION V. LIGHTFOOT, 364 U.S. 339, 345.  IF CONGRESS HAS TOLD THE
COURTS TO PROTECT A UNION MEMBER FROM INFRINGEMENT OF HIS EQUAL RIGHT
TO NOMINATE, THE COURTS SHOULD DO SO WHETHER SUCH DISCRIMINATION IS
SOPHISTICATED OR SIMPLE-MINDED.  LANE V. WILSON, 307 U.S. 268, 275. 

AFTER TODAY, SIMPLY BY FRAMING ITS DISCRIMINATORY RULES IN TERMS OF
ELIGIBILITY, A UNION CAN IMMUNIZE ITSELF FROM PRE-ELECTION ATTACK IN A
FEDERAL COURT EVEN THOUGH IT MAKES DEEP INCURSIONS ON THE EQUAL RIGHT
OF ITS MEMBERS TO NOMINATE, TO VOTE, AND TO PARTICIPATE IN THE UNION'S
INTERNAL AFFAIRS. 

THE COURT JUSTIFIES THIS CONCLUSION BY LOOKING TO THE "STRUCTURE AND
LANGUAGE" OF THE ACT.  THE LANGUAGE IS CERTAINLY NOT FREE FROM DOUBT. 
AND THE LEGISLATIVE HISTORY INDICATES THAT THE STRUCTURE CAN BE
MISLEADING.  WHAT NOW CONSTITUTES TITLES II THROUGH VI OF THE ACT WAS
SUBSTANTIALLY CONTAINED IN THE ORIGINAL BILL PRESENTED TO THE SENATE BY
SENATOR KENNEDY.  TITLE I, FIRST INTRODUCED BY SENATORY MCCLELLAN, WAS
THE PRODUCT OF DOUBT THAT THE BILL WENT FAR ENOUGH IN GUARANTEEING
INTERNAL DEMOCRACY IN UNION AFFAIRS.  THE CONCEPT OF TITLE I - ITS
STRESS ON EQUAL RIGHTS AND JUDICIAL PROTECTION - WAS THE SUBJECT OF
GREAT CONTROVERSY BOTH IN THE SENATE AND IN THE HOUSE.  REPEATED
ATTEMPTS WERE MADE BY REPRESENTATIVES OF ORGANIZED LABOR, AMONG OTHER
GROUPS, TO HAVE THE STRICT MANDATE OF THIS SO-CALLED BILL OF RIGHTS
MODIFIED, OR ELIMINATED ALTOGETHER.  DESPITE THESE EFFORTS TO REMOVE
TITLE I, IT ENDURED, AND INDEED WAS AMENDED TO PROVIDE STRONGER
REMEDIAL PROVISIONS THAN THOSE CONTAINED IN THE ORIGINAL VERSION.  AS
ORIGINALLY INTRODUCED, SEC. 102 WOULD HAVE REQUIRED AN AGGRIEVED UNION
MEMBER TO MAKE HIS COMPLAINT TO THE SECRETARY OF LABOR, EXACTLY THE
REMEDY PROVIDED BY TITLE IV.  THE KUCHEL AMENDMENT, HOWEVER,
SUBSTITUTED THE PRESENT PROVISION PERMITTING SUIT BY AN AGGRIEVED
MEMBER IN A FEDERAL DISTRICT COURT.  WHEN SENATOR KUCHEL INTRODUCED
THIS CHANGE, HE COMMENTED: 

"HERE IS ONE OF THE MAJOR CHANGES IN THE PROPOSAL.  THE AMENDMENT OF
THE SENATOR FROM ARKANSAS PROVIDED THAT THE SECRETARY OF LABOR MIGHT,
ON BEHALF OF THE INJURED OR AGGRIEVED MEMBER, HAVE THE RIGHT TO
LITIGATE THE ALLEGED GRIEVANCE AND TO SEEK AN INJUNCTION OR OTHER
RELIEF.  WE BELIEVE THAT GIVING THIS TYPE OF RIGHT TO THE AGGRIEVED
EMPLOYEE MEMBER HIMSELF IS IN THE INTEREST OF JUSTICE ...  ."  II LEG. 
HIST., LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 1232. 

SENATOR CLARK OF PENNSYLVANIA NOTED THAT THE KUCHEL AMENDMENT "TAKES
THE FEDERAL BUREAUCRACY OUT OF THIS BILL OF RIGHTS AND LEAVES ITS
ENFORCEMENT TO UNION MEMBERS, AIDED BY THE COURTS."  II LEG.  HIST.
1233. 

NONETHELESS, THE COURT FINDS A "GENERAL CONGRESSIONAL POLICY" TO
AVOID JUDICIAL RESOLUTION OF INTERNAL UNION DISPUTES.  THAT POLICY, THE
COURT SAYS, WAS DESIGNED TO LIMIT THE POWER OF INDIVIDUALS TO BLOCK AND
DELAY ELECTIONS BY SEEKING INJUNCTIVE RELIEF.  SUCH AN APPRAISAL MIGHT
HAVE BEEN ACCURATE BEFORE THE ADDITION OF TITLE I, BUT IT DOES NOT
EXPLAIN THE EMPHASIS ON PROMPT JUDICIAL REMEDIES THERE PROVIDED.  IN
ADDITION TO THE INJUNCTIVE RELIEF AUTHORIZED BY SEC. 102 (FN2) AND THE
SAVING PROVISIONS OF SEC. 103, (FN3) SEC. 101(A)(4) MODIFIES THE
TRADITIONAL REQUIREMENT OF EXHAUSTING INTERNAL REMEDIES BEFORE RESORT
TO LITIGATION.  (FN4)  EVEN SEC. 403 IS NOT CONCLUSIVE ON THE
ELIMINATION OF PRE-ELECTION REMEDIES.  (FN5)  AT THE LEAST,STATE-COURT
ACTIONS MAY BE BROUGHT IN ADVANCE OF AN ELECTION TO "ENFORCE THE
CONSTITUTION AND BYLAWS."  AND AS TO FEDERAL COURTS, IT IS CERTAINLY
ARGUABLE THAT RECOURSE THROUGH THE SECRETARY OF LABOR IS THE EXCLUSIVE
REMEDY ONLY AFTER THE ELECTION HAS BEEN HELD.  (FN6)  BY READING TITLE
I RIGHTS SO NARROWLY, AND BY CONSTRUING TITLE IV TO FORECLOSE
ABSOLUTELY PRE-ELECTION LITIGATION IN THE FEDERAL COURTS, THE COURT
SHARPLY REDUCES MEANINGFUL PROTECTION FOR MANY OF THE RIGHTS WHICH
CONGRESS WAS SO ASSIDUOUS TO CREATE.  (FN7)  BY SO SIMPLIFYING THE
TANGLED PROVISIONS OF THE ACT, THE COURT RENDERS IT VIRTUALLY
IMPOSSIBLE FOR THE AGGRIEVED UNION MEMBER TO GAIN A HEARING WHEN IT IS
MOST NECESSARY - WHEN THERE IS STILL AN OPPORTUNITY TO MAKE THE UNION'S
RULES COMPORT WITH THE REQUIREMENTS OF THE ACT. 

MY DIFFERENCE WITH THE COURT DOES NOT REACH TO THE DISPOSITION OF THIS
PARTICULAR CASE.  WHETHER STATED IN TERMS OF RESTRICTIONS ON THE RIGHT
TO NOMINATE, OR IN TERMS OF LIMITATIONS ON ELIGIBILITY FOR UNION
OFFICE, I THINK THE RULES OF A LABOR ORGANIZATION WOULD OPERATE
ILLEGALLY TO CURTAIL THE MEMBERS' EQUAL RIGHT TO NOMINATE WITHIN THE
MEANING OF TITLE I ONLY IF THOSE RULES EFFECTIVELY DISTORTED THE BASIC
DEMOCRATIC PROCESS.  THE LINE MIGHT BE A SHADOWY ONE IN SOME CASES. 
BUT I THINK THAT IN THIS CASE THE RESPONDENTS DID NOT ALLEGE IN THEIR
COMPLAINT NOR DEMONSTRATE IN THEIR AFFIDAVITS THAT THIS LINE WAS
CROSSED.  I WOULD THEREFORE REMAND THE CASE TO THE DISTRICT COURT WITH
DIRECTIONS TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM OR
RELIEF. 

FN1  AN ADDITIONAL RESTRICTION, APPLICABLE SOLELY TO THE POST OF
PRESIDENT, REQUIRED THAT ALL CANDIDATES FOR THAT OFFICE MUST HAVE
SERVED THE UNION IN SOME PRIOR OFFICIAL CAPACITY. 

FN2  "SEC.  102.  ANY PERSON WHOSE RIGHTS SECURED BY THE PROVISIONS
OF THIS TITLE HAVE BEEN INFRINGED BY ANY VIOLATION OF THIS TITLE MAY
BRING A CIVIL ACTION IN A DISTRICT COURT OF THE UNITED STATES FOR SUCH
RELIEF (INCLUDING INJUNCTIONS) AS MAY BE APPROPRIATE.  ANY SUCH ACTION
AGAINST A LABOR ORGANIZATION SHALL BE BROUGHT IN THE DISTRICT COURT OF
THE UNITED STATES FOR THE DISTRICT WHERE THE ALLEGED VIOLATION
OCCURRED, OR WHERE THE PRINCIPAL OFFICE OF SUCH LABOR ORGANIZATION IS
LOCATED." 

FN3  "SEC.  103.  NOTHING CONTAINED IN THIS TITLE SHALL LIMIT THE
RIGHTS AND REMEDIES OF ANY MEMBER OF A LABOR ORGANIZATION UNDER ANY
STATE OR FEDERAL LAW OR BEFORE ANY COURT OR OTHER TRIBUNAL, OR UNDER
THE CONSTITUTION AND BYLAWS OF ANY LABOR ORGANIZATION." 

FN4  SEE DETROY V. AMERICAN GUILD OF VARIETY ARTISTS, 286 F.2D 75
(C.A.2D CIR. 1961). 

FN5  "SEC.  403.  NO LABOR ORGANIZATION SHALL BE REQUIRED BY LAW TO
CONDUCT ELECTIONS OF OFFICERS WITH GREATER FREQUENCY OR IN A DIFFERENT
FORM OR MANNER THAN IS REQUIRED BY ITS OWN CONSTITUTION OR BYLAWS,
EXCEPT AS OTHERWISE PROVIDED BY THIS TITLE.  EXISTING RIGHTS AND
REMEDIES TO ENFORCE THE CONSTITUTION AND BYLAWS OF A LABOR ORGANIZATION
WITH RESPECT TO ELECTIONS PRIOR TO THE CONDUCT THEREOF SHALL NOT BE
AFFECTED BY THE PROVISIONS OF THIS TITLE.  THE REMEDY PROVIDED BY THIS
TITLE FOR CHALLENGING AN ELECTION ALREADY CONDUCTED SHALL BE
EXCLUSIVE." 

FN6  SEE SUMMERS, PRE-EMPTION AND THE LABOR REFORM ACT - DUAL RIGHTS
AND REMEDIES, 22 OHIO ST. L.J. 119, 138-139 (1961).  IT WOULD BE
STRANGE INDEED IF ONLY STATE COURTS WERE AVAILABLE TO ENFORCE THE
FEDERAL LAW CREATED BY THE ACT DURING THE PRE-ELECTION PERIOD. 

FN7  THE COURT'S READING OF FEDERAL-COURT REMEDIES AVAILABLE UNDER
TITLE I AND TITLE IV IS PARTICULARLY RESTRICTIVE BECAUSE OF THE LIMITED
POWERS OF THE DISTRICT JUDGE ONCE THE BALLOTING HAS OCCURRED.  UNDER
SEC. 402(C), THE COURT IS CONFINED TO SETTING THE ELECTION ASIDE ONLY
IF "THE VIOLATION OF SECTION 401 MAY HAVE AFFECTED THE OUTCOME."  FOR
THE AGGRIEVED UNION MEMBER, THIS PROTECTION MAY BE TOTALLY INADEQUATE. 
THE FUNCTION OF NOMINATING A CANDIDATE IS NOT ALWAYS TO GAIN THE
OFFICE.  A FACTION MAY BE VITALLY INTERESTED IN APPEARING ON THE BALLOT
MERELY TO SHOW THAT IT IS PART OF THE POLITICAL STRUCTURE OF THE
UNION.  UNDER THE COURT'S VIEW, UNTIL SUCH A FACTION APPROACHES
MAJORITY STATUS, JUDICIAL RELIEF IN THE FEDERAL COURTS WILL BE ABSENT. 
SEE SUMMERS, JUDICIAL REGULATION OF UNION ELECTIONS, 70 YALE L.J. 1221,
1257 (1961). 
..END :

















GILLESPIE V. UNITED STATES STEEL CORP. 379 U.S. 148 


NO. 10.  ARGUED OCTOBER 13, 1964.  - DECIDED DECEMBER 7, 1964.  - 321
F.2D 518, MODIFIED AND AFFIRMED. 


PETITIONER, ADMINISTRATRIX, WHOSE SON DIED WHILE WORKING ON
RESPENDENT'S SHIP DOCKED IN OHIO, SUED IN A FEDERAL DISTRICT COURT,
CLAIMING FOR THE ESTATE A RIGHT TO RECOVER DAMAGES FOR THE BENEFIT OF
HERSELF AND DECEDENT'S DEPENDENT BROTHER AND SISTERS FOR WRONGFUL
DEATH.  THIS CLAIM WAS BASED ON NEGLIGENCE UNDER THE JONES ACT AND ON
UNSEAWORTHINESS UNDER THE GENERAL MARITIME LAW COUPLED WITH THE OHIO
WRONGFUL DEATH STATUTE.  PETITIONER ALSO CLAIMED DAMAGES FOR THE ESTATE
FOR DECEDENT'S PAIN AND SUFFERING BEFORE DEATH BASED ON THE JONES ACT
AND THE GENERAL MARITIME LAW, CAUSES OF ACTION WHICH SHE CLAIMED
SURVIVED UNDER THE JONES ACT AND THE OHIO SURVIVAL STATUTE,
RESPECTIVELY.  THE DISTRICT COURT, UPHOLDING RESPONDENT'S MOTION TO
STRIKE, CONFINED THE COMPLAINT TO THE JONES ACT AND ELIMINATED
REFERENCE TO RECOVERY FOR THE BENEFIT OF THE BROTHER AND SISTERS. 
PETITIONER FILED AN APPEAL FROM THE RULING IN THE COURT OF APPEALS,
WHICH RESPONDENT SOUGHT TO DISMISS AS NOT BEING FROM A "FINAL" DECISION
UNDER 28 U.S.C. SEC. 1291.  PETITIONER AND DECEDENT'S DEPENDENTS THEN
SOUGHT MANDAMUS IN THAT COURT TO COMPEL THE DISTRICT COURT EITHER TO
DENY THE MOTION TO STRIKE OR TO CERTIFY ITS ORDER GRANTING THE MOTION
AS APPEALABLE UNDER 28 U.S.C. SEC. 1292(B).  THE COURT OF APPEALS
DENIED MANDAMUS AND AFFIRMED THE DISTRICT COURT'S ORDER.  HELD: 

1.  THE DISTRICT COURT'S ORDER WAS "FINAL" AND APPEALABLE UNDER 28
U.S.C. SEC. 1291.  PP. 152-154. 

(A)  THE REQUIREMENT OF FINALITY IS TO BE GIVEN A PRACTICAL RATHER
THAN A TECHNICAL CONSTRUCTION AND DOES NOT NECESSARILY MEAN THAT AN
ORDER TO BE APPEALABLE MUST BE THE LAST POSSIBLE ONE TO BE MADE IN A
CASE.  COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541,
FOLLOWED.  P. 152. 

(B)  THE INCONVENIENCE AND COSTS OF PIECEMEAL REVIEW MUST BE WEIGHED
AGAINST THE DANGER OF DENYING JUSTICE BY DELAY IN DECIDING THE QUESTION
OF FINALITY.  PP. 152-153. 

(C)  DELAY IN ADJUDICATION OF THE DEPENDENTS' RIGHTS MIGHT WORK AN
INJUSTICE UPON THEM.  P. 153. 

(D)  THIS COURT WILL REVIEW A TRIAL COURT'S RULING IN A CASE NOT
FULLY TRIED WHERE THE QUESTIONS PRESENTED ARE "FUNDAMENTAL TO THE
FURTHER CONDUCT OF THE CASE."  PP. 153-154. 

(E)  THOUGH THE DISTRICT COURT DID NOT CERTIFY ITS ORDER TO STRIKE
UNDER SEC. 1292(B), THE COURT OF APPEALS' TREATMENT OF THE ORDER AS
FINAL AND APPEALABLE FURTHERED THE CONGRESSIONAL POLICY BEHIND THAT
PROVISION.  P. 154. 

2.  THE JONES ACT, WHICH BASES RECOVERY ON NEGLIGENCE AND NOT
UNSEAWORTHINESS, PROVIDES THE EXCLUSIVE RIGHT OF ACTION FOR WRONGFUL
DEATH OF A SEAMAN KILLED IN TERRITORIAL WATERS OF A STATE IN THE COURSE
OF HIS EMPLOYMENT AND SUPERSEDES ALL OTHERWISE APPLICABLE STATE DEATH
STATUTES.  LINDGREN V. UNITED STATES, 281 U.S. 38, FOLLOWED.  PP. 154
155. 

3.  THE RIGHT OF RECOVERY UNDER THE JONES ACT DEPENDS ON SEC. 1 OF
THE FEDERAL EMPLOYERS' LIABILITY ACT (FELA), WHICH EXCLUDES
BENEFICIARIES OF A REMOTE CLASS (HERE THE BROTHER AND SISTERS) IF THERE
ARE BENEFICIARIES IN A NEARER CLASS (HERE THE MOTHER).  CHICAGO,
B.&Q.R. CO. V. WELLS-DICKEY TRUST CO., 275 U.S. 161, FOLLOWED.  P.
156. 

4.  PETITIONER'S CAUSE OF ACTION FOR DECEDENT'S PAIN AND SUFFERING
BEFORE DEATH SURVIVED UNDER THE JONES ACT, THROUGH SEC. 9 OF THE FELA,
AND WILL BE ASSUMED TO HAVE SURVIVED UNDER THE OHIO SURVIVAL STATUTE
BASED ON THE THEORY OF UNSEAWORTHINESS.  PP. 156-157. 

5.  WHETHER OR NOT THE ESTATE CAN RECOVER DAMAGES FOR PAIN AND
SUFFERING SHOULD ABIDE TRIAL, THERE BEING NO INFLEXIBLE RULE THAT WHERE
DEATH OCCURS FROM DROWNING THE PERIOD BETWEEN ACCIDENT AND DEATH IS NOT
SUFFICIENTLY APPRECIABLE TO AFFORD A BASIS FOR THE CLAIM.  THE CORSAIR,
145 U.S. 335, DISTINGUISHED.  P. 158. 

GILLESPIE, ADMINISTRATRIX V. UNITED STATES STEEL CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, ADMINISTRATRIX OF THE ESTATE OF HER SON DANIEL
GILLESPIE, BROUGHT THIS ACTION IN FEDERAL COURT AGAINST THE RESPONDENT
SHIPOWNER-EMPLOYER TO RECOVER DAMAGES FOR GILLESPIE'S DEATH, WHICH WAS
ALLEGED TO HAVE OCCURRED WHEN HE FELL AND WAS DROWNED WHILE WORKING AS
A SEAMAN ON RESPONDENT'S SHIP DOCKED IN OHIO.  SHE CLAIMED A RIGHT TO
RECOVER FOR THE BENEFIT OF HERSELF AND OF THE DECEDENT'S DEPENDENT
BROTHER AND SISTERS UNDER THE JONES ACT, WHICH SUBJECTS EMPLOYERS TO
LIABILITY IF BY NEGLIGENCE THEY CAUSE A SEAMAN'S INJURY OR DEATH. 
(FN1)  SHE ALSO CLAIMED A RIGHT OF RECOVERY UNDER THE OHIO WRONGFUL
DEATH STATUTE (FN2) BECAUSE THE VESSEL ALLEGEDLY WAS NOT SEAWORTHY AS
REQUIRED BY THE "GENERAL MARITIME LAW."  THE COMPLAINT IN ADDITION
SOUGHT DAMAGES FOR GILLESPIE'S PAIN AND SUFFERING BEFORE HE DIED, BASED
ON THE JONES ACT AND THE GENERAL MARITIME LAW, CAUSES OF ACTION WHICH
PETITIONER SAID SURVIVED GILLESPIE'S DEATH BY FORCE OF THE JONES ACT
ITSELF AND THE OHIO SURVIVAL STATUTE, (FN3) RESPECTIVELY.  THE DISTRICT
JUDGE, HOLDING THAT THE JONES ACT SUPPLIED THE EXCLUSIVE REMEDY, ON
MOTION OF RESPONDENT STRUCK ALL PARTS OF THE COMPLAINT WHICH REFERRED
TO THE OHIO STATUTES OR TO UNSEAWORTHINESS.  HE ALSO STRUCK ALL
REFERENCE TO RECOVERY FOR THE BENEFIT OF THE BROTHER AND SISTERS OF THE
DECEDENT, WHO RESPONDENT HAD ARGUED WERE NOT BENEFICIARIES ENTITLED TO
RECOVERY UNDER THE JONES ACT WHILE THEIR MOTHER WAS LIVING. 

PETITIONER IMMEDIATELY APPEALED TO THE COURT OF APPEALS.  RESPONDENT
MOVED TO DISMISS THE APPEAL ON THE GROUND THAT THE RULING APPEALED FROM
WAS NOT A "FINAL" DECISION OF THE DISTRICT COURT AS REQUIRED BY 28
U.S.C. SEC. 1291 (1958 ED.).  (FN4)  THEREUPON PETITIONER
ADMINISTRATRIX, THIS TIME JOINED BY THE BROTHER AND SISTERS, FILED IN
THE COURT OF APPEALS A PETITION FOR MANDAMUS OR OTHER APPROPRIATE WRIT
COMMANDING THE DISTRICT JUDGE TO VACATE HIS ORIGINAL ORDER AND ENTER A
NEW ONE EITHER DENYING THE MOTION TO STRIKE OR IN THE ALTERNATIVE
GRANTING THE MOTION BUT INCLUDING ALSO "THE REQUISITE WRITTEN STATEMENT
TO EFFECTIVELY RENDER HIS SAID ORDER APPEALABLE WITHIN THE PROVISIONS
OF 28 U.S.C.A. SEC. 1291(B)," A STATUTE PROVIDING FOR APPEAL OF CERTAIN
INTERLOCUTORY ORDERS.  (FN5)  WITHOUT DEFINITELY DECIDING WHETHER
MANDAMUS WOULD HAVE BEEN APPROPRIATE IN THIS CASE OR DECIDING THE
"CLOSE" QUESTION OF APPEALABILITY, THE COURT OF APPEALS PROCEEDED TO
DETERMINE THE CONTROVERSY "ON THE MERITS AS THOUGH IT WERE SUBMITTED ON
AN APPEAL"; (FN6) THIS THE COURT SAID IT FELT FREE TO DO SINCE ITS
RESOLUTION OF THE MERITS DID NOT PREJUDICE RESPONDENT IN ANY WAY,
BECAUSE IT SUSTAINED RESPONDENT'S CONTENTIONS BY DENYING THE PETITION
FOR MANDAMUS AND AFFIRMING THE DISTRICT COURT'S ORDER.  (FN7)  321 F.2D
518.  PETITIONER BROUGHT THE CASE HERE, AND WE GRANTED CERTIORARI.  375
U.S. 962. 

                                        I. 

IN THIS COURT RESPONDENT JOINS PETITIONER IN URGING US TO HOLD THAT
28 U.S.C. SEC.  1291 (1958 ED.)  DOES NOT REQUIRE US TO DISMISS THIS
CASE AND THAT WE CAN AND SHOULD DECIDE THE VALIDITY OF THE DISTRICT
COURT'S ORDER TO STRIKE.  WE AGREE.  UNDER SEC.  1291 AN APPEAL MAY BE
TAKEN FROM ANY "FINAL" ORDER OF A DISTRICT COURT.  BUT AS THIS COURT
OFTEN HAS POINTED OUT, A DECISION "FINAL" WITHIN THE MEANING OF SEC.
1291 DOES NOT NECESSARILY MEAN THE LAST ORDER POSSIBLE TO BE MADE IN A
CASE.  COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541, 545. 
AND OUR CASES LONG HAVE RECOGNIZED THAT WHETHER A RULING IS "FINAL"
WITHIN THE MEANING OF SEC. 1291 IS FREQUENTLY SO CLOSE A QUESTION THAT
DECISION OF THAT ISSUE EITHER WAY CAN BE SUPPORTED WITH EQUALLY
FORCEFUL ARGUMENTS, AND THAT IT IS IMPOSSIBLE TO DEVISE A FORMULA TO
RESOLVE ALL MARGINAL CASES COMING WITHIN WHAT MIGHT WELL BE CALLED THE
"TWILIGHT ZONE" OF FINALITY.  BECAUSE OF THIS DIFFICULTY THIS COURT HAS
HELD THAT THE REQUIREMENT OF FINALITY IS TO BE GIVEN A "PRACTICAL
RATHER THAN A TECHNICAL CONSTRUCTION."  COHEN V. BENEFICIAL INDUSTRIAL
LOAN CORP., SUPRA, 337 U.S., AT 546.  SEE ALSO BROWN SHOE CO. V. UNITED
STATES, 370 U.S. 294, 306; BRONSON V. RAILROAD CO., 2 BLACK 524, 531;
FORGAY V. CONRAD, 6 HOW.  201, 203.  DICKINSON V. PETROLEUM CONVERSION
CORP., 338 U.S. 507, 511, POINTED OUT THAT IN DECIDING THE QUESTION OF
FINALITY THE MOST IMPORTANT COMPETING CONSIDERATIONS ARE "THE
INCONVENIENCE AND COSTS OF PIECEMEAL REVIEW ON THE ONE HAND AND THE
DANGER OF DENYING JUSTICE BY DELAY ON THE OTHER."  SUCH COMPETING
CONSIDERATIONS ARE SHOWN BY THE RECORD IN THE CASE BEFORE US.  IT IS
TRUE THAT THE REVIEW OF THIS CASE BY THE COURT OF APPEALS COULD BE
CALLED "PIECEMEAL"; BUT IT DOES NOT APPEAR THAT THE INCONVENIENCE AND
COST OF TRYING THIS CASE WILL BE GREATER BECAUSE THE COURT OF APPEALS
DECIDED THE ISSUES RAISED INSTEAD OF COMPELLING THE PARTIES TO GO TO
TRIAL WITH THEM UNANSWERED.  WE CANNOT SAY THAT THE COURT OF APPEALS
CHOSE WRONGLY UNDER THE CIRCUMSTANCES.  AND IT SEEMS CLEAR NOW THAT THE
CASE IS BEFORE US THAT THE EVENTUAL COSTS, AS ALL THE PARTIES
RECOGNIZE, WILL CERTAINLY BE LESS IF WE NOW PASS ON THE QUESTIONS
PRESENTED HERE RATHER THAN SEND THE CASE BACK WITH THOSE ISSUES
UNDECIDED.  MOREOVER, DELAY OF PERHAPS A NUMBER OF YEARS IN HAVING THE
BROTHER'S AND SISTERS' RIGHTS DETERMINED MIGHT WORK A GREAT INJUSTICE
ON THEM, SINCE THE CLAIMS FOR RECOVERY FOR THEIR BENEFIT HAVE BEEN
EFFECTIVELY CUT OFF SO LONG AS THE DISTRICT JUDGE'S RULING STANDS.  AND
WHILE THEIR CLAIMS ARE NOT FORMALLY SEVERABLE SO AS TO MAKE THE COURT'S
ORDER UNQUESTIONABLY APPEALABLE AS TO THEM, CF. DICKINSON V. PETROLEUM
CONVERSION CORP., SUPRA, THERE CERTAINLY IS AMPLE REASON TO VIEW THEIR
CLAIMS AS SEVERABLE IN DECIDING THE ISSUE OF FINALITY, PARTICULARLY
SINCE THE BROTHER AND SISTERS WERE SEPARATE PARTIES IN THE PETITION FOR
EXTRAORDINARY RELIEF.  CF. SWIFT & CO. PACKERS V. COMPANIA COLOMBIANA
DEL CARIBE, S.A., 339 U.S. 684, 688-689; GUMBEL V. PITKIN, 113 U.S.
545, 548.  FURTHERMORE, IN UNITED STATES V. GENERAL MOTORS CORP., 323
U.S. 373, 377, THIS COURT CONTRARY TO ITS USUAL PRACTICE REVIEWED A
TRIAL COURT'S REFUSAL TO PERMIT PROOF OF CERTAIN ITEMS OF DAMAGES IN A
CASE NOT YET FULLY TRIED, BECAUSE THE RULING WAS "FUNDAMENTAL TO THE
FURTHER CONDUCT OF THE CASE."  FOR THESE SAME REASONS THIS COURT
REVIEWED SUCH A RULING IN LAND V. DOLLAR, 330 U.S. 731, 734, N. 2, AND
LARSON V. DOMESTIC & FOREIGN COMMERCE CORP., 337 U.S. 682, 685, N. 3,
WHERE, AS HERE, THE CASE HAD NOT YET BEEN FULLY TRIED.  AND SEE COHEN
V. BENEFICIAL INDUSTRIAL LOAN CORP., SUPRA, 337 U.S., AT 545-547.  WE
THINK THAT THE QUESTIONS PRESENTED HERE ARE EQUALLY "FUNDAMENTAL TO THE
FURTHER CONDUCT OF THE CASE."  IT IS TRUE THAT IF THE DISTRICT JUDGE
HAD CERTIFIED THE CASE TO THE COURT OF APPEALS UNDER 28 U.S.C. SEC.
1292(B) (1958 ED.), THE APPEAL UNQUESTIONABLY WOULD HAVE BEEN PROPER;
IN LIGHT OF THE CIRCUMSTANCES WE BELIEVE THAT THE COURT OF APPEALS
PROPERLY IMPLEMENTED THE SAME POLICY CONGRESS SOUGHT TO PROMOTE IN SEC.
1292(B) BY TREATING THIS OBVIOUSLY MARGINAL CASE AS FINAL AND
APPEALABLE UNDER 28 U.S.C. SEC. 1291 (1958 ED.).  WE THEREFORE PROCEED
TO CONSIDER THE CORRECTNESS OF THE COURT OF APPEALS' JUDGMENT. 

                          II. 

IN 1930 THIS COURT HELD IN LINDGREN V. UNITED STATES, 281 U.S. 38,
THAT IN PASSING SEC. 33 OF THE MERCHANT MARINE ACT, 1920, NOW 46 U.S.C.
SEC. 688 (1958 ED.), COMMONLY CALLED THE JONES ACT, CONGRESS PROVIDED
AN EXCLUSIVE RIGHT OF ACTION FOR THE DEATH OF SEAMEN KILLED IN THE
COURSE OF THEIR EMPLOYMENT, SUPERSEDING ALL STATE DEATH STATUTES WHICH
MIGHT OTHERWISE BE APPLIED TO MARITIME DEATHS, AND, SINCE THE ACT GAVE
RECOVERY ONLY FOR NEGLIGENCE, PRECLUDING ANY POSSIBLE RECOVERY BASED ON
A THEORY OF UNSEAWORTHINESS.  A STRONG APPEAL IS NOW MADE THAT WE
OVERRULE LINDGREN BECAUSE IT IS SAID TO BE UNFAIR AND INCONGROUS IN THE
LIGHT OF SOME OF OUR LATER CASES WHICH HAVE LIBERALIZED THE RIGHTS OF
SEAMEN AND NONSEAMEN TO RECOVER ON A THEORY OF UNSEAWORTHINESS FOR
INJURIES, THOUGH NOT FOR DEATH.  (FN8)  NO ONE OF THESE CASES, HOWEVER,
HAS CAST DOUBT ON THE CORRECTNESS OF THE INTERPRETATION OF THE JONES
ACT IN LINDGREN, BASED AS IT WAS ON A CAREFUL STUDY OF THE ACT IN THE
CONTEXT OF THEN-EXISTING ADMIRALTY PRINCIPLES, DECISIONS AND STATUTES. 
THE OPINION IN LINDGREN PARTICULARLY POINTED OUT THAT PRIOR TO THE
JONES ACT THERE HAD EXISTED NO FEDERAL RIGHT OF ACTION BY STATUTE OR
UNDER THE GENERAL MARITIME LAW TO RECOVER DAMAGES FOR WRONGFUL DEATH OF
A SEAMAN, (FN9) THOUGH SOME OF THE STATES DID BY STATUTE AUTHORIZE A
RIGHT OF RECOVERY WHICH ADMIRALTY WOULD ENFORCE.  (FN10)  CONGRESS, THE
LINDGREN COURT HELD, PASSED THE JONES ACT IN ORDER TO GIVE A UNIFORM
RIGHT OF RECOVERY FOR THE DEATH OF EVERY SEAMAN.  "IT IS PLAIN," THE
COURT WENT ON TO SAY, "THAT THE MERCHANT MARINE ACT IS ONE OF GENERAL
APPLICATION INTENDED TO BRING ABOUT THE UNIFORMITY IN THE EXERCISE OF
ADMIRALTY JURISDICTION REQUIRED BY THE CONSTITUTION, AND NECESSARILY
SUPERSEDES THE APPLICATION OF THE DEATH STATUTES OF THE SEVERAL
STATES."  281 U.S., AT 44.  THIRTY-FOUR YEARS HAVE PASSED SINCE THE
LINDGREN DECISION, AND CONGRESS HAS LET THE JONES ACT STAND WITH THE
INTERPRETATION THIS COURT GAVE IT.  THE DECISION WAS A REASONABLE ONE
THEN.  IT PROVIDED THE SAME REMEDY FOR INJURY OR DEATH FOR ALL SEAMEN,
THE REMEDY THAT WAS AND IS PROVIDED FOR RAILROAD WORKERS IN THE FEDERAL
EMPLOYERS' LIABILITY ACT.  (FN11)  WHATEVER MAY BE THIS COURT'S SPECIAL
RESPONSIBILITY FOR FASHIONING RULES IN MARITIME AFFAIRS, (FN12) WE DO
NOT BELIEVE THAT WE SHOULD NOW DISTURB THE SETTLED PLAN OF RIGHTS AND
LIABILITIES ESTABLISHED BY THE JONES ACT. 

PETITIONER ARGUES FURTHER THAT EVEN IF THE ONLY AVAILABLE REMEDY FOR
DEATH IS UNDER THE JONES ACT, THE DISTRICT JUDGE ERRED IN REFUSING TO
HOLD THAT THE JONES ACT PROVIDES FOR DAMAGES FOR DEATH FOR THE BENEFIT
OF THE BROTHER AND SISTERS OF THE DECEDENT AS WELL AS FOR THE MOTHER. 
THEIR RIGHT OF RECOVERY, IF ANY, DEPENDS ON SEC. 1 OF THE FELA, 45
U.S.C.  SEC. 51 (1958 ED.), WHICH PROVIDES THAT RECOVERY OF DAMAGES FOR
DEATH SHALL BE: 

"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 THE NEXT OF KIN DEPENDENT UPON SUCH EMPLOYEE ...  ." 

IN CHICAGO, B.&Q.R. CO. V. WELLS-DICKEY TRUST CO., 275 U.S. 161, 163,
THIS COURT, SPEAKING THROUGH MR. JUSTICE BRANDEIS, HELD THAT THIS
PROVISION CREATES "THREE CLASSES OF POSSIBLE BENEFICIARIES.  BUT THE
LIABILITY IS IN THE ALTERNATIVE.  IT IS TO ONE OF THE THREE; NOT TO THE
SEVERAL CLASSES COLLECTIVELY."  WE ARE ASKED TO OVERRULE THIS CASE SO
AS TO GIVE A RIGHT OF RECOVERY FOR THE BENEFIT OF ALL THE MEMBERS OF
ALL THREE CLASSES IN EVERY CASE OF DEATH.  BOTH COURTS BELOW REFUSED TO
DO SO, AND WE AGREE.  IT IS ENOUGH TO SAY THAT WE ADHERE TO THE WELLS
DICKEY HOLDING, AMONG OTHER REASONS BECAUSE WE AGREE THAT THIS
INTERPRETATION OF THE ACT IS PLAINLY CORRECT.  CF. POFF V. PENNSYLVANIA
R. CO., 327 U.S. 399. 

ONE OTHER ASPECT OF THIS CASE REMAINS TO BE MENTIONED.  THE COMPLAINT
SOUGHT TO RECOVER DAMAGES FOR THE ESTATE BECAUSE "DECEDENT SUFFERED
SEVERE PERSONAL INJURIES WHICH CAUSED HIM EXCRUCIATING PAIN AND MENTAL
ANGUISH PRIOR TO HIS DEATH."  PETITIONER CONTENDS THAT THE SEAMAN'S
CLAIM FOR PAIN AND SUFFERING SURVIVES HIS DEATH AND CAN BE BROUGHT ON A
THEORY OF UNSEAWORTHINESS BY FORCE OF THE OHIO SURVIVAL STATUTE.  THE
DISTRICT JUDGE STRUCK THE REFERENCE TO THE OHIO SURVIVAL STATUTE FROM
THE COMPLAINT, AND THE COURT OF APPEALS HELD THAT THERE WAS "NO
SUBSTANTIAL BASIS, IN THIS CASE," FOR A CLAIM FOR PAIN AND SUFFERING
PRIOR TO DEATH.  THERE IS, OF COURSE, NO DOUBT THAT THE JONES ACT
THROUGH SEC. 9 OF THE FELA, 45 U.S.C. SEC. 59 (1958 ED.), (FN13)
PROVIDES FOR SURVIVAL AFTER THE DEATH OF THE SEAMAN OF "ANY RIGHT OF
ACTION GIVEN BY THIS CHAPTER," I.E., OF HIS CLAIM BASED ON A THEORY OF
NEGLIGENCE.  AND WE MAY ASSUME, AS WE HAVE IN THE PAST, (FN14) THAT
AFTER DEATH OF THE INJURED PERSON A STATE SURVIVAL STATUTE CAN PRESERVE
THE CAUSE OF ACTION FOR UNSEAWORTHINESS, (FN15) WHICH WOULD NOT SURVIVE
UNDER THE GENERAL MARITIME LAW.  (FN16)  IN HOLDING THAT PETITIONER HAD
NOT STATED A CLAIM ENTITLING HER TO RECOVERY FOR THE DECEDENT'S PAIN
AND SUFFERING THE COURT OF APPEALS RELIED ON THE CORSAIR, 145 U.S. 335,
348, A CASE BROUGHT IN A FEDERAL COURT TO RECOVER DAMAGES UNDER A
LOUISIANA SURVIVAL STATUTE FOR ALLEGED PAIN AND SUFFERING PRIOR TO
DEATH BY DROWNING WHERE THERE WAS AN INTERVAL OF "ABOUT TEN MINUTES"
BETWEEN THE ACCIDENT AND DEATH.  THE COURT HELD SUCH DAMAGES COULD NOT
BE RECOVERED THERE, SAYING: 

"  ...  THERE IS NO AVERMENT FROM WHICH WE CAN GATHER THAT THESE
PAINS AND SUFFERINGS WERE NOT SUBSTANTIALLY COTEMPORANEOUS WITH HER
DEATH AND INSEPARABLE AS MATTER OF LAW FROM IT." 

PLAINLY THIS COURT DID NOT HOLD IN THE CORSAIR THAT DAMAGES CANNOT
EVER BE RECOVERED FOR PHYSICAL AND MENTAL PAIN SUFFERED PRIOR TO DEATH
BY DROWNING.  THE CASE HELD MERELY THAT THE AVERMENTS OF THE PLAINTIFF
THERE DID NOT JUSTIFY AWARDING SUCH DAMAGES IN AN ACTION UNDER THE
LOUISIANA SURVIVAL STATUTE.  THE COURT'S LANGUAGE CERTAINLY DID NOT
PRECLUDE ALLOWANCE OF SUCH DAMAGES IN ALL CIRCUMSTANCES UNDER OTHER
LAWS, OR EVEN UNDER THE LOUISIANA STATUTE IN A CASE WHERE PAIN AND
SUFFERING WERE "NOT SUBSTANTIALLY COTEMPORANEOUS WITH  ...  DEATH AND
INSEPARABLE AS MATTER OF LAW FROM IT."  IN THIS DAY OF LIBERALITY IN
ALLOWING AMENDMENT OF PLEADINGS TO ACHIEVE THE ENDS OF JUSTICE, (FN17)
THE ISSUE WHETHER THE DECEDENT'S ESTATE COULD RECOVER HERE FOR PAIN AND
SUFFERING PRIOR TO DEATH SHOULD NOT HAVE BEEN DECIDED FINALLY BY THE
COURT OF APPEALS ON THE BASIS OF MERE PLEADING.  THEREFORE THE QUESTION
WHETHER DAMAGES CAN BE RECOVERED FOR PAIN AND SUFFERING PRIOR TO DEATH
ON THE FACTS OF THIS CASE WILL REMAIN OPEN.  IN ALL OTHER RESPECTS THE
JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  41 STAT. 1007, 46 U.S.C. SEC. 688 (1958 ED.): 

"ANY SEAMAN WHO SHALL SUFFER PERSONAL INJURY IN THE COURSE OF HIS
EMPLOYMENT MAY, AT HIS ELECTION, MAINTAIN AN ACTION FOR DAMAGES AT LAW,
WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL STATUTES OF THE
UNITED STATES MODIFYING OR EXTENDING THE COMMON-LAW RIGHT OR REMEDY IN
CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES SHALL APPLY; AND IN CASES
OF THE DEATH OF ANY SEAMAN AS A RESULT OF ANY SUCH PERSONAL INJURY THE
PERSONAL REPRESENTATIVE OF SUCH SEAMAN MAY MAINTAIN AN ACTION FOR
DAMAGES AT LAW WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL
STATUTES OF THE UNITED STATES CONFERRING OR REGULATING THE RIGHT OF
ACTION FOR DEATH IN THE CASE OF RAILWAY EMPLOYEES SHALL BE APPLICABLE. 
JURISDICTION IN SUCH ACTIONS SHALL BE UNDER THE COURT OF THE DISTRICT
IN WHICH THE DEFENDANT EMPLOYER RESIDES OR IN WHICH HIS PRINCIPAL
OFFICE IS LOCATED." 

FN2  OHIO REV. CODE.  SEC.  2125.01. 

FN3  OHIO REV. CODE.  SEC.  2305.21. 

FN4  "THE COURTS OF APPEALS SHALL HAVE JURISDICTION OF APPEALS FROM
ALL FINAL DECISIONS OF THE DISTRICT COURTS OF THE UNITED STATES  ...
EXCEPT WHERE A DIRECT REVIEW MAY BE HAD IN THE SUPREME COURT." 

FN5  SECTION 1292(B) PROVIDES: 

"WHEN A DISTRICT JUDGE, IN MAKING IN A CIVIL ACTION AN ORDER NOT
OTHERWISE APPEALABLE UNDER THIS SECTION, SHALL BE OF THE OPINION THAT
SUCH ORDER INVOLVES A CONTROLLING QUESTION OF LAW AS TO WHICH THERE IS
SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION AND THAT AN IMMEDIATE
APPEAL FROM THE ORDER MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION
OF THE LITIGATION, HE SHALL SO STATE IN WRITING IN SUCH ORDER.  THE
COURT OF APPEALS MAY THEREUPON, IN ITS DISCRETION, PERMIT AN APPEAL TO
BE TAKEN FROM SUCH ORDER, IF APPLICATION IS MADE TO IT WITHIN TEN DAYS
AFTER THE ENTRY OF THE ORDER: PROVIDED, HOWEVER, THAT APPLICATION FOR
AN APPEAL HEREUNDER SHALL NOT STAY PROCEEDINGS IN THE DISTRICT COURT
UNLESS THE DISTRICT JUDGE OR THE COURT OF APPEALS OR A JUDGE THEREOF
SHALL SO ORDER." 

FN6  321 F.2D 518, 532. 

FN7  NO REVIEW IS SOUGHT IN THIS COURT OF THE DENIAL OF THE PETITION
FOR MANDAMUS. 

FN8  SEE, E.G., THE TUNGUS V. SKOVGAARD, 358 U.S. 588, 595, N. 9;
POPE & TALBOT, INC., V. HAWN, 346 U.S. 406; SEAS SHIPPING CO. V.
SIERACKI, 328 U.S. 85; MAHNICH V. SOUTHERN S.S.  CO., 321 U.S. 96. 

FN9  CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372; THE HARRISBURG,
119 U.S. 199; CF.  THE OSCEOLA, 189 U.S. 158. 

FN10  GREAT LAKES DREDGE & DOCK CO. V. KIEREJEWSKI, 261 U.S. 479;
WESTERN FUEL CO. V. GARCIA, 257 U.S. 233; CF. THE HAMILTON, 207 U.S.
398. 

FN11  35 STAT. 65, AS AMENDED, 45 U.S.C. SECS. 51-60 (1958 ED.). 

FN12  SEE FITZGERALD V. UNITED STATES LINES CO., 374 U.S. 16, 20-21,
AND CASES THERE CITED. 

FN13  36 STAT. 291, 45 U.S C.SEC.  59 (1958 ED.): 

"ANY RIGHT OF ACTION GIVEN BY THIS CHAPTER TO A PERSON SUFFERING
INJURY SHALL SURVIVE 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 TO THE NEXT OF KIN DEPENDENT UPON SUCH EMPLOYEE, BUT IN SUCH CASES
THERE SHALL BE ONLY ONE RECOVERY FOR THE SAME INJURY." 

FN14  "PRESUMABLY ANY CLAIMS, BASED ON UNSEAWORTHINESS, FOR DAMAGES
ACCRUED PRIOR TO THE DECEDENT'S DEATH WOULD SURVIVE, AT LEAST IF A
PERTINENT STATE STATUTE IS EFFECTIVE TO BRING ABOUT A SURVIVAL OF THE
SEAMAN'S RIGHT."  KERNAN V. AMERICAN DREDGING CO., 355 U.S. 426, 430,
N. 4.  SEE ALSO CURTIS V. A. GARCIA Y CIA., 241 F.2D 30, 36-37 (C.A. 3D
CIR.); HOLLAND V. STEAG, INC., 143 F. SUPP. 203, 205-206 (D.C.D.
MASS.). 

FN15  CF. JUST V. CHAMBERS, 312 U.S. 383. 

FN16  CORTES V. BALTIMORE INSULAR LINE, INC., 287 U.S. 367. 

FN17  SEE FED. RULES CIV. PROC. 15; FOMAN V. DAVIS, 371 U.S. 178;
UNITED STATES V. HOUGHAM, 364 U.S. 310; CF. CONLEY V. GIBSON, 355 U.S.
41. 

MR. JUSTICE GOLDBERG, DISSENTING IN PART. 

I AGREE THAT THIS CASE IS PROPERLY HERE, BUT DISAGREE WITH THE COURT
ON THE MERITS OF THE BASIC QUESTION PRESENTED FOR DECISION. 

THE PRECISE POINT AT ISSUE IN THIS CASE IS WHETHER A SUIT IN A
FEDERAL COURT FOR THE DEATH OF A SEAMAN RESULTING FROM UNSEAWORTHINESS
OF A VESSEL MAY BE MAINTAINED AGAINST THE EMPLOYER WHERE THE DEATH
OCCURS WITHIN THE WATERS OF A STATE WHICH PROVIDES A STATUTORY REMEDY
FOR WRONGFUL DEATH. 

IN DECIDING THIS QUESTION, THE COURT TODAY PRESERVES AN ANOMALY IN
ADMIRALTY LAW WHICH HAS NEITHER REASON NOR JUSTIFICATION.  A SEAMAN WHO
IS EITHER INJURED OR KILLED WHILE ON THE HIGH SEAS IS GIVEN A REMEDY
FOR EITHER NEGLIGENCE OR UNSEAWORTHINESS, MAHNICH V. SOUTHERN S.S. CO.,
321 U.S. 96, KERNAN V. AMERICAN DREDGING CO., 355 U.S. 426, 430, N. 4;
A SEAMAN WHO IS INJURED IN TERRITORIAL WATERS MAY ALSO SUE FOR EITHER
NEGLIGENCE OR UNSEAWORTHINESS, MCALLISTER V. MAGNOLIA PETROLEUM CO.,
357 U.S. 221, CF. SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85; AN
INJURED SEAMAN MAY ALSO SUE FOR MAINTENANCE AND CURE AND THESE CLAIMS
SURVIVE HIS DEATH, SEE KERNAN V. AMERICAN DREDGING CO., SUPRA, AT 430,
N. 4; A NONSEAMAN'S DEATH IN TERRITORIAL WATERS GIVES RISE TO AN ACTION
BASED UPON THE APPLICABLE STATE WRONGFUL DEATH STATUTE FOR BOTH
NEGLIGENCE AND THE GENERAL MARITIME DOCTRINE OF UNSEAWORTHINESS, THE
TUNGUS V. SKOVGAARD, 358 U.S. 588.  ONLY THE FAMILY SURVIVORS OF A
SEAMAN ARE LEFT WITHOUT A REMEDY FOR HIS DEATH WITHIN TERRITORIAL
WATERS CAUSED BY FAILURE TO MAINTAIN A SEAWORTHY VESSEL.  ONLY THEY ARE
DENIED RECOURSE TO THIS RULE OF ABSOLUTE LIABILITY AND RELEGATED TO
PROOF OF NEGLIGENCE UNDER THE JONES ACT.  THIS DISPARITY IN TREATMENT
HAS BEEN CHARACTERIZED BY THE LOWER FEDERAL COURTS AS "DEPLORABLE,"
"ANOMALOUS," "ARCHAIC," "UNNECESSARY," AND "HARD TO UNDERSTAND."  SEE
FALL V. ESSO STANDARD OIL CO., 297 F.2D 411, 417 (C.A. 5TH CIR.)
(WISDOM, J.); MORTENSON V. PACIFIC FAR EAST LINE, INC., 148 F. SUPP.
71, 73 (D.C.N.D. CAL.); GILL V. UNITED STATES, 184 F.2D 49, 57 (C.A.2D
CIR.)(L. HAND, J., DISSENTING).  I AGREE WITH THESE CHARACTERIZATIONS. 

THE COURT RELIES UPON LINDGREN V. UNITED STATES, 281 U.S. 38, AND THE
DOCTRINE OF STARE DECISIS TO JUSTIFY ITS HOLDING - A HOLDING WHICH, IN
MY VIEW, IS AT VARIANCE WITH THE GENERAL CONGRESSIONAL INTENT IN
ENACTING THE JONES ACT "TO PROVIDE LIBERAL RECOVERY FOR INJURED
WORKERS."  KERNAN V. AMERICAN DREDGING CO., 355 U.S. 426, 432.  I DO
NOT FEEL THAT STARE DECISIS COMPELS THE CONCLUSION REACHED BY THE
COURT, BECAUSE I BELIEVE, FIRST, THAT THE LANGUAGE OF THE COURT IN
LINDGREN IS DICTUM AND, SECOND, THAT EVEN IF THE LANGUAGE EMBODIED A
HOLDING, SUCH A HOLDING SHOULD BE OVERRULED. 

THE PRECISE ISSUE BEFORE THE COURT IN LINDGREN WAS NOT WHETHER A
STATE WRONGFUL DEATH STATUTE SHOULD BE APPLIED TO SUPPLY A REMEDY FOR
UNSEAWORTHINESS - THE ISSUE HERE PRESENTED - BUT RATHER WHETHER SUCH A
STATUTE SHOULD BE APPLIED TO SUPPLY A REMEDY FOR NEGLIGENCE. 

THE LIBEL IN LINDGREN, THE COURT ACKNOWLEDGED, "DOES NOT ALLEGE THE
UNSEAWORTHINESS OF THE VESSEL AND IS BASED UPON NEGLIGENCE ALONE  ...
."  281 U.S., AT 47. 

THE ACTUAL DECISION IN LINDGREN OF PRECEDENTIAL EFFECT IS THAT THE
JONES ACT WHICH PROVIDES A REMEDY FOR WRONGFUL DEATH DUE TO NEGLIGENCE
SUPERSEDES STATE REMEDIES FOR SUCH NEGLIGENCE.  WITH THIS PRECISE
HOLDING THERE CAN BE NO QUARREL.  THE JONES ACT, 41 STAT. 1007, 46
U.S.C.  SEC. 688 (1958 ED.), SAYS THAT "STATUTES OF THE UNITED STATES
CONFERRING OR REGULATING THE RIGHT OF ACTION FOR DEATH IN THE CASE OF
RAILWAY EMPLOYEES SHALL BE APPLICABLE" TO SEAMEN'S CASES.  THIS COURT
HAS HELD THAT CONGRESS INTENDED THAT THE FEDERAL EMPLOYERS' LIABILITY
ACT, 35 STAT. 65, AS AMENDED, 45 U.S.C. SECS. 51-60 (1958 ED.), REPLACE
NEGLIGENCE AND RELATED STATE REMEDIES.  NEW YORK CENTRAL R. CO. V.
WINFIELD, 244 U.S. 147.  THE COURT IN LINDGREN REASONABLY CONCLUDED
THAT THE JONES ACT, INCORPORATING THE STANDARD OF THE FELA, SUPERSEDES
AND PRE-EMPTS STATE REMEDIES FOR NEGLIGENCE.  IT CORRECTLY DECIDED THAT
SINCE THE WRONGFUL DEATH BEFORE IT WAS "BASED UPON NEGLIGENCE ALONE"
RECOVERY COULD ONLY BE HAD UNDER THE JONES ACT AND NOT UNDER THE STATE
WRONGFUL DEATH STATUTE.  ON THIS PRECISE HOLDING, LINDGREN IS A VALID
PRECEDENT AND SHOULD BE FOLLOWED. 

THE COURT IN LINDGREN, HOWEVER, WENT ON TO SAY, AT 46-47: 

"IN THE LIGHT OF THE FOREGOING DECISIONS AND IN ACCORDANCE WITH THE
PRINCIPLES THEREIN ANNOUNCED WE CONCLUDE THAT THE MERCHANT MARINE ACT -
ADOPTED BY CONGRESS IN THE EXERCISE OF ITS PARAMOUNT AUTHORITY IN
REFERENCE TO THE MARITIME LAW AND INCORPORATING IN THAT LAW THE
PROVISIONS OF THE FEDERAL EMPLOYERS' LIABILITY ACT - ESTABLISHES AS A
MODIFICATION OF THE PRIOR MARITIME LAW A RULE OF GENERAL APPLICATION IN
REFERENCE TO THE LIABILITY OF THE OWNERS OF VESSELS FOR INJURIES TO
SEAMEN EXTENDING TERRITORIALLY AS FAR AS CONGRESS CAN MAKE IT GO; THAT
THIS OPERATES UNIFORMLY WITHIN ALL OF THE STATES AND IS AS
COMPREHENSIVE OF THOSE INSTANCES IN WHICH BY REFERENCE TO THE FEDERAL
EMPLOYERS' LIABILITY ACT IT EXCLUDES LIABILITY, AS OF THOSE IN WHICH
LIABILITY IS IMPOSED; AND THAT, AS IT COVERS THE ENTIRE FIELD OF
LIABILITY FOR INJURIES TO SEAMEN, IT IS PARAMOUNT AND EXCLUSIVE, AND
SUPERSEDES THE OPERATION OF ALL STATE STATUTES DEALING WITH THAT
SUBJECT. 

"IT RESULTS THAT IN THE PRESENT CASE NO RESORT CAN BE HAD TO THE
VIRGINIA DEATH STATUTE, EITHER TO CREATE A RIGHT OF ACTION NOT GIVEN BY
THE MERCHANT MARINE ACT, OR TO ESTABLISH A MEASURE OF DAMAGES NOT
PROVIDED BY THAT ACT. 

"NOR CAN THE LIBEL BE SUSTAINED AS ONE TO RECOVER INDEMNITY FOR
BARFORD'S DEATH UNDER THE OLD MARITIME RULES ON THE GROUND THAT THE
INJURIES WERE OCCASIONED BY THE UNSEAWORTHINESS OF THE VESSEL.   ASIDE
FROM THE FACT THAT THE LIBEL DOES NOT ALLEGE THE UNSEAWORTHINESS OF THE
VESSEL AND IS BASED UPON NEGLIGENCE ALONE, AN INSUPERABLE OBJECTION TO
THIS SUGGESTION IS THAT THE PRIOR MARITIME LAW, AS HEREIN ABOVE STATED,
GAVE NO RIGHT TO RECOVER INDEMNITY FOR THE DEATH OF A SEAMAN, ALTHOUGH
OCCASIONED BY UNSEAWORTHINESS OF THE VESSEL." 

IT IS APPARENT FROM THIS STATEMENT ITSELF THAT THE COURT'S
OBSERVATION THAT THE JONES ACT PRE-EMPTED STATE REMEDIES FOR DEATH
RESULTING FROM UNSEAWORTHINESS, AS DISTINGUISHED FROM NEGLIGENCE, WAS
PURELY AND SIMPLY OBITER DICTUM.  CF. THE TUNGUS V. SKOVGAARD, SUPRA,
AT 606-607 (OPINION OF MR. JUSTICE BRENNAN).  EVEN THE ENGLISH COURTS,
WHICH HOLD TO A DOCTRINE OF STARE DECISIS MORE RIGID THAN OUR OWN, HOLD
THAT OBITER DICTA ARE IN NO WISE CONTROLLING.  (FN1)  SURELY THE RULE
OF STARE DECISIS SHOULD NOT PRECLUDE CONSIDERATION OF WHETHER SUCH
DICTA WERE ORIGINALLY SUPPORTED BY LOGIC AND HAVE WITHSTOOD THE TEST OF
TIME. 

IN FACT, MUCH OF THE REASONING SUPPORTING THE LINDGREN DICTUM HAS
BEEN REJECTED IN SUBSEQUENT DECISIONS OF THIS COURT.  THE COURT'S
RATIONALE IN LINDGREN FOR ITS CONCLUSION THAT THE JONES ACT PRE-EMPTED
REMEDIES FOR WRONGFUL DEATH RESULTING FROM UNSEAWORTHINESS, AS WELL AS
NEGLIGENCE, WAS IN PART THAT THE ACT "COVERS THE ENTIRE FIELD OF
LIABILITY FOR INJURIES TO SEAMEN, IT IS PARAMOUNT AND EXCLUSIVE." 
LINDGREN V. UNITED STATES, SUPRA, AT 47.  IN MAHNICH V. SOUTHERN S.S.
CO., SUPRA, HOWEVER, THIS COURT HELD THAT A SEAMAN MAY RECOVER FOR
INJURIES SUSTAINED FROM THE SHIP'S SEAWORTHINESS NOTWITHSTANDING HIS
RIGHT TO A REMEDY UNDER THE JONES ACT FOR NEGLIGENCE.  AND IN SEAS
SHIPPING CO. V. SIERACKI, SUPRA, THE COURT HELD THAT THE SAME IS TRUE
OF LONGSHOREMEN.  (FN2)  THE LOGIC OF JUDGE LEARNED HAND'S COMMENT ON
THE EFFECT OF THESE DECISIONS ON THE RATIONALE OF THE LINDGREN DICTA IS
INESCAPABLE: 

"I FIND IT HARD TO UNDERSTAND WHY THE RATIONALE OF LINDGREN V. UNITED
STATES  ...  OUGHT NOT TO HAVE FORBIDDEN RECOVERY IN EITHER OF THESE
INSTANCES.  IF THE JONES ACT 'COVERS THE ENTIRE FIELD OF LIABILITY FOR
INJURIES TO SEAMEN'  ...  AND 'IS PARAMOUNT AND EXCLUSIVE,' WHY DOES IT
NOT SUPERSEDE INJURIES ARISING FROM UNSEAWORTHINESS WHICH DO NOT RESULT
IN DEATH, AS WELL AS THOSE WHICH DO?" GILL V. UNITED STATES, SUPRA, AT
57. 

THERE IS, HOWEVER, AN ANSWER TO JUDGE HAND'S QUESTION.  THE COURT IN
LINDGREN WAS WRONG IN ITS SWEEPING ASSERTION THAT THE JONES ACT COVERS
THE ENTIRE FIELD OF LIABILITY FOR INJURIES TO SEAMEN AND IS PARAMOUNT
AND EXCLUSIVE.  CONGRESS IN PASSING THE JONES ACT MEANT TO LEAVE
CERTAIN PRE-EXISTING REMEDIES UNTOUCHED.  AND CONGRESS DID NOT INTEND
IN ENACTING THE JONES ACT - A REMEDIAL STATUTE - TO ELIMINATE THE
SEAMAN'S RIGHT TO RECOVERY FOR MAINTENANCE AND CURE OR FOR
UNSEAWORTHINESS.  SEE THE OSCEOLA, 189 U.S. 158, 175.  THE ADMIRALTY
RULE THAT THE VESSEL AND OWNER ARE LIABLE TO THE SEAMAN FOR "INJURY
CAUSED BY UNSEAWORTHINESS OF THE VESSEL OR ITS APPURTENANT APPLIANCES
AND EQUIPMENT, HAS BEEN THE SETTLED LAW SINCE THIS COURT'S RULING TO
THAT EFFECT IN THE OSCEOLA, 189 U.S. 158, 175."  MAHNICH V. SOUTHERN
S.S. CO., SUPRA, AT 99. 

WHAT CONGRESS DID INTEND IN ENACTING THE JONES ACT WAS TO PROVIDE AN
ADDITIONAL REMEDY DENIED IN MARITIME LAW, AS RULED IN THE OSCEOLA,
SUPRA, "BY WAY OF INDEMNITY BEYOND MAINTENANCE AND CURE, FOR THE INJURY
TO A SEAMAN CAUSED BY THE MERE NEGLIGENCE OF A SHIP'S OFFICER OR MEMBER
OF THE CREW."  IBID.    IN OTHER WORDS, PRIOR TO THE JONES ACT, "THE
MARITIME LAW AFFORDED NO REMEDY  ...  FOR  ... INJURY TO A SEAMAN
CAUSED BY  ...  NEGLIGENCE."  IBID.  THE JONES ACT SUPPLIED A MARITIME
REMEDY FOR NEGLIGENCE; IT PRE-EMPTED THOSE PURELY STATE REMEDIES
RELATED TO NEGLIGENCE AND IT IS PARAMOUNT AND EXCLUSIVE ONLY TO THAT
EXTENT.  (FN3)  THE ACT DOES NOT SUPERSEDE, AS MAHNICH HOLDS,
TRADITIONAL MARITIME REMEDIES FOR UNSEAWORTHINESS. 

TRADITIONAL MARITIME LAW NOT ONLY RECOGNIZED THE RIGHT OF A SEAMAN TO
RECOVER FOR INJURIES CAUSED BY UNSEAWORTHINESS, THE OSCEOLA, SUPRA, AT
175; IT ALSO RECOGNIZED A RIGHT OF ACTION TO RECOVER FOR THE DEATH OF A
SEAMAN RESULTING FROM UNSEAWORTHINESS OF A VESSEL WHERE THE DEATH
OCCURS IN THE NAVIGABLE WATERS OF A STATE WHICH PROVIDES A STATUTORY
REMEDY FOR WRONGFUL DEATH.  THIS WAS RECOGNIZED IN THE LINDGREN
OPINION.  281 U.S., AT 43.  SEE ALSO WESTERN FUEL CO. V. GARCIA, 257
U.S. 233, 242. 

SIMPLE LOGIC COMPELS THE CONCLUSION THAT IF THE JONES ACT DOES NOT
PRE-EMPT A SEAMAN'S TRADITIONAL REMEDY FOR INJURIES CAUSED BY
UNSEAWORTHINESS, IT SIMILARLY DOES NOT PRE-EMPT THE RIGHT OF ACTION TO
RECOVER FOR THE DEATH OF A SEAMAN RESULTING FROM UNSEAWORTHINESS TO THE
EXTENT THAT SUCH A REMEDY WAS RECOGNIZED BEFORE THE JONES ACT IN STATES
PROVIDING A STATUTORY REMEDY FOR WRONGFUL DEATH. 

LEGISLATIVE HISTORY AS WELL AS LOGIC SUPPORTS THE CONCLUSION THAT
CONGRESS BY ENACTING THE JONES ACT DID NOT INTEND TO ELIMINATE THEN
EXISTING REMEDIES FOR UNSEAWORTHINESS. 

THE SAME CONGRESS WHICH PASSED THE JONES ACT PROVIDING A REMEDY FOR
INJURIES TO A SEAMAN RESULTING FROM NEGLIGENCE AND A REMEDY FOR
WRONGFUL DEATH CAUSED BY NEGLIGENCE WHERE THE DEATH OCCURS IN STATE
WATERS, ENACTED THE DEATH ON THE HIGH SEAS ACT, 41 STAT. 537, 46 U.S.C.
SECS. 761-768 (1958 ED.).  THIS STATUTE GIVES AN ADMIRALTY REMEDY FOR
WRONGFUL DEATH OF A SEAMAN OR OTHER PERSON OCCURRING ON THE HIGH SEAS
BEYOND A MARINE LEAGUE FROM THE SHORE OF ANY STATE.  THE ACT EXPRESSLY
STIPULATES THAT "THE PROVISIONS OF ANY STATE STATUTE GIVING OR
REGULATING RIGHTS OF ACTION OR REMEDIES FOR DEATH SHALL NOT BE AFFECTED
BY THIS CHAPTER."  41 STAT. 538, 46 U.S.C. SEC. 767 (1958 ED.). 

IN THE TUNGUS V. SKOVGAARD, SUPRA, AT 593, MR. JUSTICE STEWART FOR
THE COURT SAID OF THIS EXCEPTION: 

"THE LEGISLATIVE HISTORY OF THE DEATH ON THE HIGH SEAS ACT DISCLOSES
A CLEAR CONGRESSIONAL PURPOSE TO LEAVE 'UNIMPAIRED THE RIGHTS UNDER
STATE STATUTES AS TO DEATHS ON WATERS WITHIN THE TERRITORIAL
JURISDICTION OF THE STATES.'  S. REP. NO. 216, 66TH CONG., 1ST SESS. 3;
H.R. REP. NO. 674, 66TH CONG., 2D SESS. 3.  THE RECORD OF THE DEBATE IN
THE HOUSE OF REPRESENTATIVES PRECEDING PASSAGE OF THE BILL REFLECTS
DEEP CONCERN THAT THE POWER OF THE STATES TO CREATE ACTIONS FOR
WRONGFUL DEATH IN NO WAY BE AFFECTED BY ENACTMENT OF THE FEDERAL LAW. 
59 CONG. REC. 4482-4486." 

FROM THIS EXPRESSION OF CONGRESSIONAL PURPOSE, THE COURT IN THE
TUNGUS CONCLUDED THAT A SUIT IN ADMIRALTY FOR DEATH OF A LONGSHOREMAN
RESULTING FROM UNSEAWORTHINESS OF A VESSEL MAY BE MAINTAINED AGAINST
THE VESSEL'S OWNER WHERE THE DEATH OCCURS IN THE WATERS OF A STATE
WHICH PROVIDES A STATUTORY REMEDY FOR WRONGFUL DEATH. 

IT SEEMS TO ME TO STRAIN CREDULITY TO IMPUTE TO CONGRESS THE INTENT
TO ELIMINATE STATE DEATH REMEDIES FOR UNSEAWORTHINESS WHERE THE
DECEDENT IS A SEAMAN WHILE REFUSING TO DO SO IN CASES INVOLVING
NONSEAMEN.  YET THIS IS THE RESULT OF THE COURT'S FOLLOWING LINDGREN. 

FINALLY, EVEN THOUGH THE LINDGREN DICTUM HAS BEEN IN EXISTENCE FOR 34
YEARS, NO POLICY OF STARE DECISIS MILITATES AGAINST OVERRULING
LINDGREN.  IN REFUSING TO FOLLOW LINDGREN WE WOULD NOT CREATE NEW
DUTIES OR STANDARDS OF LIABILITY; WE WOULD MERELY ALLOW A NEW REMEDY. 
SHIPOWNERS ARE CURRENTLY REQUIRED TO MAINTAIN A SEAWORTHY SHIP; SEAMEN
AND LONGSHOREMEN CURRENTLY RECOVER FOR DEATH ON THE HIGH SEAS AND
INJURY SUFFERED ANYWHERE DUE TO AN UNSEAWORTHY VESSEL.  THE ACTION OF A
SHIPOWNER IN MAINTAINING HIS VESSEL WILL NOT BE AFFECTED BY NOW
ALLOWING RECOVERY FOR WRONGFUL DEATH IN TERRITORIAL WATER CAUSED BY
UNSEAWORTHINESS.  IT IS THUS DIFFICULT TO FIND MUCH IF ANY RELIANCE
THAT WOULD JUSTIFY THE CONTINUATION OF A LEGAL ANOMALY WHICH WOULD DENY
A HUMANE AND JUSTIFIABLE REMEDY. 

STARE DECISIS DOES NOT MEAN BLIND ADHERENCE TO IRRATIONAL DOCTRINE. 
THE VERY POINT OF STARE DECISIS IS TO PRODUCE A SENSE OF SECURITY IN
THE WORKING OF THE LEGAL SYSTEM BY REQUIRING THE SATISFACTION OF
REASONABLE EXPECTATIONS.  I SHOULD THINK THAT BY ALLOWING A REMEDY
WHERE ONE IS NEEDED, BY ELIMINATING DIFFERENCES NOT BASED ON REASON,
WHILE STILL LEAVING THE UNDERLYING SCHEME OF DUTIES UNCHANGED, THIS
SENSE OF SECURITY WILL NOT BE WEAKENED BUT STRENGTHENED.  THE POLICIES
BEHIND STARE DECISIS POINT TOWARD IGNORING LINDGREN, NOT FOLLOWING IT. 

I CANNOT AGREE THAT CONGRESS IN ENACTING THE JONES ACT, DESIGNED "TO
PROVIDE LIBERAL RECOVERY FOR INJURED WORKERS," INTENDED TO CREATE THE
ANOMALY PERPETUATED BY THE COURT'S DECISION.  I WOULD REVERSE AND FREE
THE LOWER FEDERAL COURTS TO GRANT RELIEF IN THESE CASES - RELIEF WHICH
MANY OF THEM HAVE INDICATED IS JUST AND PROPER "IN TERMS OF GENERAL
PRINCIPLES," FALL V. ESSO STANDARD OIL CO., SUPRA, AT 417, AND WHICH
THEY GLADLY WOULD ACCORD BUT FOR THE UNFORTUNATE AND UNNECESSARY
COMPULSION OF LINDGREN. 

SINCE PETITIONER CLAIMS THAT OHIO LAW ALLOWS RECOVERY FOR A WRONGFUL
DEATH CAUSED BY UNSEAWORTHINESS, NOTHING IN EITHER THE MAJORITY OF
MINORITY OPINION IN THE TUNGUS V. SKOVGAARD, SUPRA, WOULD PRECLUDE
RECOVERY.  ONLY THE LINDGREN DICTUM STANDS IN THE WAY.  I WOULD REJECT
THIS DICTUM AND REVERSE. 

FN1  CATLETT, THE DEVELOPMENT OF THE DOCTRINE OF STARE DECISIS AND
THE EXTENT TO WHICH IT SHOULD BE APPLIED.  21 WASH. L. REV. 158, 162. 

FN2  MOREOVER, FEDERAL COURTS HAVE BORROWED STATE SURVIVAL STATUTES
TO ALLOW FOR THE SURVIVAL OF CLAIMS BASED UPON UNSEAWORTHINESS FOR
CONSCIOUS PAIN AND SUFFERING PRIOR TO THE SEAMAN'S DEATH.  HOLLAND V.
STEAG, INC., 143 F. SUPP. 203 (D.C.D. MASS.) CITED WITH APPROVAL IN
KERNAN V. AMERICAN DREDGING CO., SUPRA, AT 430, N. 4; ACCORD:
MCLAUGHLIN V. BLIDBERG ROTHCHILD CO., 167 F. SUPP. 714 (D.C.S.D.N.Y.);
CF. JUST V. CHAMBERS, 312 U.S. 383.  I SEE NO WAY TO HOLD UNDER
LINDGREN THAT STATE SURVIVAL STATUTES MAY BE APPLIED TO PRESERVE
ACTIONS FOR PAIN AND SUFFERING, YET STATE WRONGFUL DEATH ACTIONS MAY
NOT BE USED TO ALLOW AN ACTION FOR WRONGFUL DEATH. 

FN3  EVEN IF THE ANALOGY WITH FELA CASES WERE FOLLOWED EXACTLY, NEW
YORK CENTRAL R. CO. V. WINFIELD, SUPRA, COULD REQUIRE NO MORE THAN PRE
EMPTION OF PURELY STATE STRICT LIABILITY REMEDIES.  A WRONGFUL DEATH
ACTION BASED ON UNSEAWORTHINESS WAS A MIXED STATE-FEDERAL REMEDY IN
WHICH MARITIME COURTS BORROWED A STATE WRONGFUL DEATH ACTION WHICH IN
TURN WAS BASED UPON A FEDERAL MARITIME STANDARD OF LIABILITY.  NOTHING
IN WINFIELD REQUIRES A FINDING THAT THIS TYPE OF REMEDY WAS PRE
EMPTED. 

MR. JUSTICE HARLAN, DISSENTING. 

I THINK THAT DUE REGARD FOR THE "FINALITY" RULE GOVERNING THE
APPELLATE JURISDICTION OF THE COURTS OF APPEALS REQUIRES THAT THE
JUDGMENT BELOW BE VACATED AND THE CASE REMANDED TO THE COURT OF APPEALS
WITH INSTRUCTIONS TO DISMISS THE APPEAL BECAUSE THE DECISION OF THE
DISTRICT COURT WAS NOT A "FINAL" ONE, AND HENCE NOT REVIEWABLE BY THE
COURT OF APPEALS AT THIS STAGE OF THE LITIGATION. 

PETITIONER SOUGHT TO RECOVER IN THIS ACTION UPON TWO THEORIES:
NEGLIGENCE UNDER THE JONES ACT AND UNSEAWORTHINESS UNDER THE GENERAL
MARITIME LAW.  THE DISTRICT COURT DISMISSED THE UNSEAWORTHINESS CLAIM
IN THE COMPLAINT, AND PETITIONER APPEALED.  ALTHOUGH PETITIONER SEEMED
TO RECOGNIZE THAT THE ORDER WAS NOT APPEALABLE, (FN1) THE COURT OF
APPEALS, OVERRULING RESPONDENT'S MOTION TO DISMISS FOR LACK OF
JURISDICTION, AFFIRMED ON THE MERITS AND THIS COURT GRANTED CERTIORARI
OVER RESPONDENT'S SHOWING THAT THE COURT OF APPEALS SHOULD NOT HAVE
ENTERTAINED THE APPEAL.  THE COURT SUBSTANTIALLY AFFIRMS THE JUDGMENT
OF THE COURT OF APPEALS AND THE PARTIES ARE REMANDED TO A TRIAL ON THE
MERITS, BUT ONLY AFTER THEY HAVE INCURRED NEEDLESS DELAY AND EXPENSE IN
CONSEQUENCE OF THE LOOSE PRACTICES SANCTIONED BY THE COURT OF APPEALS
AND IN TURN BY THIS COURT.  THIS CASE THUS PRESENTS A STRIKING EXAMPLE
OF THE VICE INHERENT IN A SYSTEM WHICH PERMITS PIECEMEAL LITIGATION OF
THE ISSUES IN A LAWSUIT, A VICE WHICH CONGRESS IN 28 U.S.C. SEC. 1291
INTENDED TO AVOID BY LIMITING APPEALS TO THE COURT OF APPEALS (FN2)
ONLY FROM "FINAL DECISIONS" OF THE DISTRICT COURTS, WITH EXCEPTIONS NOT
HERE RELEVANT.  (FN3) 

MANIFESTLY THE DECISION OF THE DISTRICT COURT REVIEWED BY THE COURT
OF APPEALS LACKED THE ESSENTIAL QUALITY OF FINALITY; IT INVOLVED BUT
INTERSTITIAL RULINGS IN AN ACTION NOT YET TRIED.  THE JUSTIFICATIONS
GIVEN BY THE COURT FOR TOLERATING THE LOWER COURT'S DEPARTURE FROM THE
REQUIREMENTS OF SEC. 1291 ARE, WITH ALL RESPECT, UNSATISFACTORY. 

1.  THE COURT RELIES ON THE DISCRETIONARY RIGHT OF A DISTRICT COURT
TO CERTIFY AN INTERLOCUTORY ORDER TO THE COURT OF APPEALS UNDER SEC.
1292(B) WHEN THE "ORDER INVOLVES A CONTROLLING QUESTION OF LAW," BUT
THE DISTRICT COURT IN ITS DISCRETION - AND RIGHTLY IT TURNS OUT - DID
NOT MAKE SUCH A CERTIFICATION IN THIS CASE, (FN4) AND THE COURT OF
APPEALS, EQUALLY CORRECTLY IN MY JUDGMENT, REFUSED TO ORDER IT TO DO
SO.  THE FACT THAT CONGRESS HAS PROVIDED SOME FLEXIBILITY IN THE FINAL
JUDGMENT RULE HARDLY LENDS SUPPORT TO THE COURT'S ATTEMPT TO OBVIATE
JURISDICTIONAL RESTRICTIONS WHENEVER A COURT OF APPEALS ERRONEOUSLY
ENTERTAINS A NONAPPEALABLE ORDER AND HARDSHIP MAY RESULT IF THE
SUBSTANTIVE QUESTIONS ARE NOT THEN DECIDED HERE.  (FN5) 

2.  COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541, DOES NOT
SUPPORT A DIFFERENT RESULT.  AS THE COURT IN THAT CASE STATED, SEC.
1291 DOES NOT PERMIT APPEALS FROM DECISIONS "WHERE THEY ARE BUT STEPS
TOWARDS FINAL JUDGMENT IN WHICH THEY WILL MERGE  ...  AND ARE NOT
CLAIMS OF RIGHT SEPARABLE FROM, AND COLLATERAL TO, RIGHTS ASSERTED IN
THE ACTION, TOO IMPORTANT TO BE DENIED REVIEW AND TOO INDEPENDENT OF
THE CAUSE ITSELF TO REQUIRE THAT APPELLATE CONSIDERATION BE DEFERRED
UNTIL THE WHOLE CASE IS ADJUDICATED."  337 U.S., AT 546.  IT IS CLEAR
IN THIS CASE THAT HAD PETITIONER PROCEEDED TO TRIAL AND WON ON HER
JONES ACT CLAIM, HER ASSERTED CAUSE OF ACTION FOR UNSEAWORTHINESS WOULD
HAVE MERGED IN THE JUDGMENT.  SEE BALTIMORE S.S. CO. V. PHILLIPS, 274
U.S. 316.  CONVERSELY, HER CLAIM WOULD HAVE BEEN PRESERVED FOR APPEAL
HAD SHE LOST ON HER JONES ACT CLAIM.  SURELY THE ASSERTION THAT
PETITIONER IS ENTITLED TO SUBMIT HER UNSEAWORTHINESS THEORY TO THE JURY
IS NOT COLLATERAL TO THE RIGHTS ASSERTED IN HER ACTION, SO AS TO
ENTITLE HER TO AN APPEAL BEFORE TRIAL. 

3.  FINALLY, THE COURT'S SUGGESTION THAT "IT SEEMS CLEAR NOW THAT THE
CASE IS BEFORE US THAT THE EVENTUAL COSTS, AS ALL THE PARTIES
RECOGNIZE, WILL CERTAINLY BE LESS IF WE NOW PASS ON THE QUESTIONS
PRESENTED HERE RATHER THAN SEND THE CASE BACK WITH THOSE ISSUES
UNDECIDED," ANTE, P. 153, FURNISHES NO EXCUSE FOR AVOIDANCE OF THE
FINALITY RULE.  ESSENTIALLY SUCH A POSITION WOULD JUSTIFY REVIEW HERE
OF ANY CASE DECIDED BY A COURT OF APPEALS WHENEVER THIS COURT, AS IT
DID IN THIS INSTANCE, ERRONEOUSLY GRANTS CERTIORARI AND PERMITS COUNSEL
TO BRIEF AND ARGUE THE CASE ON THE MERITS.  THAT, I BELIEVE, IS NEITHER
GOOD LAW NOR SOUND JUDICIAL ADMINISTRATION.  (FN6) 

I WOULD VACATE THIS JUDGMENT OF THE COURT OF APPEALS AND REMAND THE
CASE TO THAT COURT WITH DIRECTIONS TO DISMISS PETITIONER'S APPEAL FOR
LACK OF JURISDICTION. 

FN1  AFTER THE APPEAL WAS FILED, PETITIONER UNSUCCESSFULLY SOUGHT A
WRIT OF MANDAMUS TO COMPEL THE DISTRICT COURT TO CERTIFY ITS ORDER TO
THE COURT OF APPEALS UNDER 28 U.S.C.  SEC. 1292(B), ANTE, PP. 151-152. 

FN2  THE JURISDICTIONAL DEFECT IN THIS CASE ARISES ONLY FROM THE LACK
OF FINALITY OF THE DISTRICT COURT'S ORDER.  IN UNITED STATES V. GENERAL
MOTORS CORP., 323 U.S. 373; LARSON V. DOMESTIC & FOREIGN COMMERCE
CORP., 337 U.S. 682; AND LAND V. DOLLAR, 330 U.S. 731, ALL CITED IN THE
MAJORITY OPINION, ANTE, PP. 153-154, THE DISTRICT COURT HAD ENTERED A
FINAL JUDGMENT, BUT THE COURT OF APPEALS REVERSED AND REMANDED THE CASE
FOR FURTHER PROCEEDINGS.  THUS THE FINALITY QUESTION BEFORE THIS COURT
WAS SIMPLY WHETHER IT SHOULD REVIEW A NONFINAL ORDER OF THE COURT OF
APPEALS, WHICH OF COURSE THE COURT CLEARLY HAS AUTHORITY TO DO UNDER 28
U.S.C. SEC. 1254(1) (1958 ED.). 

FN3  SEE 28 U.S.C. SEC. 1292 (1958 ED.). 

FN4  THE PURPOSE OF SEC. 1292(B) WAS TO PERMIT A DISTRICT JUDGE, IN
HIS DISCRETION, TO OBTAIN IMMEDIATE REVIEW OF AN ORDER WHICH MIGHT
CONTROL THE FURTHER CONDUCT OF THE CASE AND WHICH NORMALLY INVOLVES AN
UNSETTLED QUESTION OF LAW.  CF. 28 U.S.C. SEC. 1254(3) (1958 ED.).  IN
THIS CASE THE DISTRICT COURT'S RULING WAS CONTROLLED BY LINDGREN V.
UNITED STATES, 281 U.S. 38, AND THE VALIDITY OF THAT RULING COULD ONLY
BE TESTED BY HAVING CERTIORARI ISSUE FROM THIS COURT.  IN THAT POSTURE,
I THINK THE DISTRICT COURT WAS QUITE RIGHT IN NOW WANTING TO DELAY THE
LITIGATION ON THE CHANCE THAT THIS COURT WOULD RE-EVALUATE ITS DECISION
IN LINDGREN. 

FN5  COMPARE SCHLAGENHAUF V. HOLDER, ANTE, P. 104, AT 110.  THE
PRESENCE OF THE BROTHER AND SISTERS, ANTE, P. 153, OF THE COURT'S
OPINION, CANNOT SOMEHOW SERVE TO MAKE THE DISTRICT COURT ORDER FINAL. 
THEY WERE PARTIES ONLY TO THE MANDAMUS PROCEEDING, COURT'S OPINION
ANTE, PP. 151, 152, N. 7, THEIR CLAIMS WERE NOT SEVERABLE FROM
PETITIONER'S, ID., P. 153, AND THE MERIT OF THEIR CLAIMS LIKEWISE
DEPENDED ON A HOLDING THAT LINDGREN WAS OVERRULED, SEE NO. 4, SUPRA.  I
CAN SEE NO "INJUSTICE" RESULTING TO THE BROTHER AND SISTERS BY DELAYING
REVIEW OF THE ORDER UNTIL AFTER FINAL JUDGMENT WHICH IS NOT ALSO
PRESENT WITH RESPECT TO PETITIONER.    FN6  UNDERSTANDABLY COUNSEL FOR
THE RESPONDENT, AS HE EXPLAINED IN ORAL ARGUMENT, DID NOT BRIEF THE
FINALITY POINT FOLLOWING THE GRANT OF CERTIORARI; HE ASSUMED THAT THE
GRANTING OF THE PETITION, DESPITE HIS HAVING RAISED THE MATTER IN HIS
RESPONSE THERETO, INDICATED THAT THE COURT HAD NO INTEREST IN THE
QUESTION. 

MEMORANDUM OF MR. JUSTICE STEWART. 

WHILE I AGREE WITH MR. JUSTICE HARLAN THAT THIS CASE IS NOT PROPERLY
HERE, THE COURT HOLDS OTHERWISE AND DECIDES THE ISSUES PRESENTED ON
THEIR MERITS.  AS TO THOSE ISSUES, I JOIN THE OPINION OF THE COURT. 
..END :







AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES AND CANADA V.
WITTSTEIN 379 U.S. 171 


NO. 27.  ARGUED NOVEMBER 16, 1964.  - DECIDED DECEMBER 7, 1964.  - 326
F.2D 26, REVERSED AND REMANDED. 


UNDER A WEIGHTED-VOTING SYSTEM WHEREBY DELEGATES FROM EACH LOCAL OF
PETITIONER INTERNATIONAL UNION CAST VOTES AT ITS ANNUAL CONVENTION
EQUAL TO THE LOCAL'S MEMBERSHIP (WITH A LOCAL'S TOTAL VOTES APPORTIONED
WHERE DELEGATES DISAGREED), A MAJORITY OF THE VOTES CAST BY LESS THAN
ONE-HALF THE DELEGATES FAVORED A DUES INCREASE.  RESPONDENT UNION
MEMBERS SUED TO NULLIFY THE INCREASE, ON THE GROUND THAT WEIGHTED
VOTING VIOLATED THE REQUIREMENT IN SEC.  101(A)(3)(B) OF THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (LMRDA) THAT A DUES
INCREASE BE APPROVED BY "MAJORITY VOTE OF THE DELEGATES VOTING AT A
REGULAR CONVENTION."  THE DISTRICT COURT RENDERED SUMMARY JUDGMENTS FOR
RESPONDENTS, AND THE COURT OF APPEALS AFFIRMED, HOLDING THAT UNDER THAT
PROVISION EACH DELEGATE WAS ENTITLED TO BUT ONE VOTE REGARDLESS OF THE
NUMBER OF MEMBERS HE REPRESENTED.  HELD:  SECTION 101(A)(3)(B) OF THE
LMRDA PERMITS A WEIGHT-VOTING SYSTEM UNDER WHICH DELEGATES CAST A
NUMBER OF VOTES EQUAL TO THE MEMBERSHIP OF THEIR LOCAL UNION.  PP. 175
183. 

AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES AND CANADA ET AL.
V. WITTSTEIN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE ISSUE PRESENTED IN THESE SUITS IS WHETHER SEC. 101(A)(3) OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (FN1) PROVIDING
THAT THE DUES OF AN INTERNATIONAL UNION "SHALL NOT BE INCREASED  ...
EXCEPT  ...  BY MAJORITY VOTE OF THE DELEGATES VOTING AT A REGULAR
CONVENTION" PROHIBITS THE VOTE OF DELEGATES AT A NATIONAL CONVENTION OF
THE UNION, AS AUTHORIZED BY ITS CONSTITUTION, FROM BEING WEIGHTED AND
COUNTED ACCORDING TO THE NUMBER OF MEMBERS IN THE LOCAL THAT THE
DELEGATE REPRESENTS. 

                      I. 

THE PETITIONER AMERICAN FEDERATION OF MUSICIANS (FEDERATION) IS AN
INTERNATIONAL LABOR ORGANIZATION COMPRISING 675 LOCALS IN THE UNITED
STATES AND CANADA.  AS WITH NUMEROUS OTHER NATIONAL AND INTERNATIONAL
LABOR ORGANIZATIONS HAVING MANY SCATTERED LOCALS OF VARYING SIZE,
FEDERATION'S CONSTITUTION AND BYLAWS HAVE LONG AUTHORIZED ALTERNATIVE
METHODS OF ASCERTAINING THE VOTE OF THE DELEGATES REPRESENTING THE
LOCALS AT A UNION CONVENTION.  EACH LOCAL IS ENTITLED TO ONE DELEGATE
FOR EACH 100 MEMBERS OR MAJOR FRACTION THEREOF, NOT TO EXCEED THREE
DELEGATES FROM ANY ONE LOCAL.  FEDERATION'S BYLAWS PERMIT A VOICE VOTE
OF THE DELEGATES ATTENDING A CONVENTION IN ALL CASES, WHICH IS THE
METHOD OFTEN USED ON ROUTINE NONCONTROVERSIAL MATTERS.  WHEN AMENDMENTS
TO THE UNION CONSTITUTION OR BYLAWS ARE AT ISSUE, HOWEVER, THE
DELEGATES REPRESENTING THE LOCALS, UPON A ROLL CALL VOTE, MAY CAST AS
MANY VOTES AS THERE ARE MEMBERS IN THE RESPECTIVE LOCALS.  A ROLL CALL
VOTE IS REQUIRED UPON THE DEMAND OF 10 DELEGATES OR FIVE LOCALS.  ALL
AMENDMENTS TO THE BYLAWS AND CONSTITUTION APPROVED BY A ROLL CALL VOTE
ARE REQUIRED UNDER THE CONSTITUTION TO BE REFERRED TO A CONVENTION
COMMITTEE WHICH MAY APPROVE OR VETO THE PROPOSAL.  (FN2) 

AT PETITIONER'S 1963 ANNUAL CONVENTION, A RESOLUTION INCREASING THE
PER CAPITA DUES OF ALL MEMBERS, APPROXIMATELY 255,000, WAS SUBMITTED TO
THE DELEGATES.  AFTER THE CHAIRMAN RULED THAT TWO VOICE VOTES OF THE
DELEGATES WERE INCONCLUSIVE, A DELEGATE SPEAKING ON BEHALF OF FIVE
LOCALS REQUESTED A ROLL CALL VOTE IN ACCORDANCE WITH FEDERATION'S
CONSTITUTION.  THE RULES GOVERNING A ROLL CALL VOTE WERE EXPLAINED TO
THE DELEGATES.  DELEGATES WERE TO CAST AS MANY VOTES AS THERE WERE
MEMBERS IN THE LOCAL THAT THEY REPRESENTED.  IF THE DELEGATES FROM A
GIVEN LOCAL WERE IN DISAGREEMENT, THE TOTAL VOTES OF THAT LOCAL WERE TO
BE DIVIDED AMONG THE DELEGATES.  THE ROLL CALL WAS TAKEN AND THE
RECOMMENDATION CARRIED BY SOME 44,326 VOTES, WITH LESS THAN ONE-HALF OF
THE DELEGATES PRESENT VOTING IN FAVOR OF THE PROPOSAL. 

RESPONDENTS, MEMBERS OF SEVERAL LOCALS WHOSE DELEGATES VOTED FOR OR
AGAINST THE RESOLUTION AT THE CONVENTION, BROUGHT THESE SUITS AGAINST
FEDERATION AND ONE OF ITS LOCALS TO HAVE THE RESOLUTION DECLARED NULL
AND VOID AND ITS IMPLEMENTATION ENJOINED.  IN THE DISTRICT COURT,
SUMMARY JUDGMENT IN THE CONSOLIDATED ACTIONS WAS RENDERED FOR THE
RESPONDENT UNION MEMBERS.  223 F. SUPP. 27 (D.C.S.D.N.Y.).  FINDING
THAT THE MATERIAL FACTS ABOUT THE ENACTMENT OF THE DUES RESOLUTION IN
REGARD TO THE ISSUE UNDER SEC. 101(A)(3)(B) WERE NOT IN DISPUTE, THAT
COURT RULED THAT WEIGHTED VOTING DID NOT COMPLY WITH SEC.
101(A)(3)(B)'S REQUIREMENT OF APPROVAL BY "MAJORITY VOTE OF THE
DELEGATES VOTING AT A REGULAR CONVENTION."  A DIVIDED COURT OF APPEALS
AFFIRMED.  326 F.2D 26 (C.A.2D CIR.).  ALTHOUGH NOTING THAT WEIGHTED
VOTING "IS TO ALL APPEARANCES THE MOST 'DEMOCRATIC' METHOD, IN THE
SENSE THAT EACH MEMBER IS DULY 'REPRESENTED,'" IT HELD THAT THE PLAIN
LANGUAGE OF SEC. 101(A)(3)(B) REQUIRES THAT EACH DELEGATE BE ALLOWED
BUT ONE VOTE REGARDLESS OF THE NUMBER OF MEMBERS HE REPRESENTS.  THE
QUESTION BEING AN IMPORTANT ONE OF FIRST IMPRESSION UNDER THE LMRDA, WE
GRANTED CERTIORARI.  376 U.S. 942.  WE HOLD THAT SEC. 101(A)(3)(B) DOES
NOT PROHIBIT A WEIGHTED-VOTING SYSTEM UNDER WHICH DELEGATES CAST A
NUMBER OF VOTES EQUAL TO THE MEMBERSHIP OF THE LOCAL UNION FROM WHICH
THEY ARE ELECTED. 

                                         II. 

UNDER SEC. 101(A)(3)(B) AN INTERNATIONAL UNION MAY INCREASE
MEMBERSHIP DUES OR LEVY AN ASSESSMENT BY MAJORITY VOTE OF THE MEMBERS
VOTING IN A MEMBERSHIP REFERENDUM, BY MAJORITY VOTE OF THE MEMBERS OF
THE EXECUTIVE BOARD, EFFECTIVE, HOWEVER, ONLY TO THE NEXT REGULAR
CONVENTION, OR "BY MAJORITY VOTE OF THE DELEGATES VOTING AT A  ...
CONVENTION."  THE QUOTED LANGUAGE, IT IS SAID, AUTHORIZES ONLY ONE
SYSTEM OF VOTING:  A HEAD COUNT OF THE DELEGATES AT A CONVENTION.  JUST
AS EACH MEMBER AND EACH EXECUTIVE BOARD MEMBER IS ENTITLED TO ONE VOTE,
SO TOO EACH DELEGATE MAY CAST ONLY HIS SINGLE VOTE.  THERE CANNOT BE A
MAJORITY VOTE OF THE DELEGATES VOTING, THE ARGUMENT PROCEEDS, UNLESS A
DELEGATE CASTS BUT ONE VOTE, NO MORE OR LESS, AND THE AFFIRMATIVE VOTES
CAST ADD UP TO A MAJORITY OF THE DELEGATES VOTING.  SO FAR THE ARGUMENT
IS BASED SOLELY UPON WHAT IS SAID TO BE THE LITERAL MEANING OF THE
STATUTORY LANGUAGE; THERE IS NO SUGGESTION THAT SEC. 101(A)(3)(B)
EMBODIES AN ACCEPTED OR PREFERABLE SYSTEM OF REPRESENTATION BY
DELEGATES OR THAT THE PROVISION REQUIRES ANY SET NUMBER OF DELEGATES AT
A CONVENTION OR ANY PARTICULAR RELATIONSHIP BETWEEN THE SIZE OF THE
LOCAL AND THE NUMBER OF REPRESENTATIVES AT THE CONVENTION. 

WE DO NOT THINK THIS IS THE ONLY FAIR IMPORT OF THE LANGUAGE IN SEC.
101(A)(3)(B).  THE SECTION REQUIRES A MAJORITY VOTE OF THE DELEGATES
VOTING.  IT DOES NOT STATE THAT A DUES INCREASE MUST BE APPROVED BY A
MAJORITY OF THE DELEGATES VOTING AT A CONVENTION.  THE RESPONDENTS'
CONSTRUCTION RENDERS THE KEY WORD "VOTE" ENTIRELY SUPERFLUOUS, ALTHOUGH
THAT WORD DESCRIBES WHAT IS TO BE COUNTED TO DETERMINE A MAJORITY.  THE
PROVISION ON ITS FACE PRESCRIBES ONLY BY WHOM THE VOTE MUST BE CAST - A
DELEGATE TO A CONVENTION - AND THE PROPORTION OF VOTES NEEDED FOR
PASSAGE - A MAJORITY OF THE VOTES CAST.  THE STATUTE DOES REQUIRE THAT
THOSE VOTING AT A CONVENTION BE DELEGATES, BUT IT SAYS NOTHING ABOUT
THE NUMBER OF VOTES EACH DELEGATE MAY CAST.  WHERE THE "VOTE" CAST AT A
CONVENTION IS WEIGHTED ACCORDING TO THE NUMBER OF PEOPLE THE DELEGATE
REPRESENTS, THAT VOTE, WE THINK, IS A VOTE OF A DELEGATE.  WE BELIEVE
THAT A MAJORITY VOTE SO DETERMINED IN FAVOR OF A DUES INCREASE IS
APPROVAL BY MAJORITY VOTE OF THE DELEGATES VOTING AT A CONVENTION. 

WHATEVER DOUBTS MAY BE LEFT BY SOLE AND PLENARY RELIANCE ON PLAIN
MEANING ARE FULLY RESOLVED BY CONSIDERATION OF THE LEGISLATIVE HISTORY
BEHIND SEC. 101(A)(3)(B) AND OF OTHER PROVISIONS OF THE LMRDA.  THIS
WHICH WOULD HAVE REQUIRED A "GENERAL VOTE" ON RULES RELATING TO THE
RATE OF DUES AND INITIATION FEES AND WOULD HAVE REQUIRED THAT THE VOTE
OF DELEGATES AT A CONVENTION "BE NUMERICALLY EQUIVALENT, OR
PROPORTIONATE, TO THE NUMBER OF THE MEMBERS OF EACH CONSTITUENT UNIT." 
(FN3)  I LEG.  HIST.  269, 278.  ALTHOUGH S. 1137 WAS NOT REPORTED OUT
BY THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, SENATOR
MCCLELLAN'S REQUIREMENT THAT THE VOTING STRENGTH OF CONVENTION
DELEGATES BE PROPORTIONATE TO THE SIZE OF THEIR CONSTITUENCY IS
SIGNIFICANT FOR THE REASON THAT IT WAS THE OUTGROWTH OF THE EXTENSIVE
HEARINGS HELD BY THE MCCLELLAN COMMITTEE (FN4) WHICH UNCOVERED
SUBSTANTIAL EVIDENCE OF VARIOUS FORMS OF INTERNAL MISGOVERNMENT AND
ABUSES IN SEVERAL LABOR ORGANIZATIONS.  THE FINDINGS OF THIS COMMITTEE
BECAME THE PRIMARY BASIS FOR THE MANY BILLS THAT FOLLOWED ITS
INVESTIGATIONS, (FN5) AN AMALGAM OF WHICH ULTIMATELY BECAME THE LMRDA. 
IN LIGHT OF THE FACT THAT THEN AS NOW MANY LARGE UNIONS HAD PROVISIONS
FOR WEIGHTED VOTING BY DELEGATES AT A CONVENTION, IT IS VERY CLEAR THAT
WEIGHTED VOTING WAS NOT THOUGHT TO BE ONE OF THESE ABUSES OR FORMS OF
MISGOVERNMENT.  (FN6) 

SENATE BILL NO. 1555, THE KENNEDY-ERVIN BILL, WAS FAVORABLY REPORTED
OUT OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE WITHOUT ANY
BILL OF RIGHTS FOR UNION MEMBERS, NOW TITLE I OF THE ACT, OF WHICH THE
PROVISION RELATING TO DUES IS A PART.  (FN7)  SENATOR MCCLELLAN SOON
INTRODUCED A COMPREHENSIVE BILL OF RIGHTS PROVISION AS AN AMENDMENT TO
S. 1555, WHICH WAS ADOPTED IN THE SENATE BY A VOTE OF 47 TO 46.  (FN8)
IN RESPECT TO FINANCIAL EXACTIONS, THIS AMENDMENT PLACED A FLAT LIMIT
ON INITIATION FEES AND REQUIRED FOR APPROVAL OF A DUES INCREASE A
MAJORITY VOTE OF THE MEMBERS IN THE CASE OF A LOCAL UNION AND A
"MAJORITY VOTE OF THE DELEGATES PRESENT" AT A GENERAL MEETING IN THE
CASE OF A NATIONAL OR INTERNATIONAL UNION.  IT IS NOT WITHOUT
SIGNIFICANCE THAT THIS LANGUAGE IS SUSCEPTIBLE OF THE SAME CONSTRUCTION
THAT IS URGED HERE IN RESPECT TO SEC. 101(A)(3)(B), FOR IT IS QUITE
CLEAR THAT THE AUTHOR OF THIS PROVISION, SENATOR MCCLELLAN, DID NOT
INTEND TO PROHIBIT WEIGHTED VOTING.  A FEW DAYS LATER THE KUCHEL
AMENDMENT, SUBSTITUTING ANOTHER BILL OF RIGHTS PROVISION, WAS ADOPTED
BY A VOTE OF 77 TO 14.  (FN9)  THIS AMENDMENT ELIMINATED SOME OF THE
MORE STRINGENT REQUIREMENTS OF SENATOR MCCLELLAN'S BILL OF RIGHTS, SUCH
AS THE LIMIT ON INITIATION FEES, AND DEALT WITH VOTING PROCEDURES FOR
APPROVAL OF A DUES INCREASE BY A LOCAL AND AN INTERNATIONAL UNION IN
MORE DETAIL; IN THE CASE OF A LOCAL, MAJORITY APPROVAL OF THE MEMBERS
WAS NECESSARY, WHILE IN THE CASE OF AN INTERNATIONAL, A "MAJORITY VOTE
AT A REGULAR CONVENTION" WAS REQUIRED.  UNDER THIS LANGUAGE, WHICH WAS
SAID TO BE "TAKEN ALMOST VERBATIM FROM  ...  THE MCCLELLAN AMENDMENT,"
(FN10) IT IS VERY CLEAR THAT NO QUESTION OF THE PERMISSIBILITY OF
WEIGHTED VOTING COULD BE RAISED.  AND NO ONE EXPRESSED THE THOUGHT THAT
THE MCCLELLAN PROPOSAL ON VOTING WAS BEING ALTERED IN THIS OR ANY OTHER
RESPECT.  S. 1555 PASSED THE SENATE WITH THE KUCHEL SUBSTITUTE AS TITLE
I. (FN11) 

THE CHANGES IN SEC. 101(A)(3)(B) IN THE HOUSE SUPPORT THE CONCLUSION
THAT THIS PROVISION DOES NOT BAR WEIGHTED VOTING.  S. 1555, AS PASSED
BY THE SENATE, BECAME THE FOCUS OF TESTIMONY BEFORE A JOINT
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON EDUCATION AND LABOR.  (FN12)
THE GIST OF THE OBJECTIONS TO SEC. 101(A)(3)(B) WAS THAT IT FAILED
EXPLICITLY TO ALLOW OTHER METHODS OF ENSURING MEMBERSHIP PARTICIPATION
ON PROPOSALS OF AN INTERNATIONAL OR NATIONAL UNION TO INCREASE DUES,
AND IT WAS TOO RIGID IN DISALLOWING ACTION BY AN EXECUTIVE BOARD OF THE
INTERNATIONAL OR NATIONAL UNION.  (FN13) THE COMMITTEE RESPONDED BY
EXPANDING THE PERMISSIBLE METHODS OF RAISING DUES.  AS REPORTED OUT IN
THE ELLIOTT BILL, SEC. 101(A)(3)(B) ALLOWED AN INTERNATIONAL TO
INCREASE DUES BY MAJORITY VOTE OF THE MEMBERS, BY MAJORITY VOTE OF THE
MEMBERS OF AN EXECUTIVE BOARD, EFFECTIVE ONLY UNTIL THE NEXT
CONVENTION, AND "BY MAJORITY VOTE OF THE DELEGATES VOTING AT A REGULAR
CONVENTION."  (FN14)  THE COMMITTEE VERSION WAS INCORPORATED IN
IDENTICAL LANGUAGE IN THE LANDRUM-GRIFFIN BILL, WHICH PREVAILED ON THE
FLOOR OF THE HOUSE.  (FN15)  IN RESPECT TO HIS BILL, REPRESENTATIVE
GRIFFIN OBSERVED GENERALLY THAT THE "BILL OF RIGHTS IN OUR SUBSTITUTE
IS ESSENTIALLY THE BILL OF RIGHTS IN THE FORM PASSED BY THE SENATE.  IT
GUARANTEES TO UNION MEMBERS, SUBJECT TO REASONABLE RULES AND
REGULATIONS,  ...  THAT THEIR DUES AND INITIATION FEES WILL NOT BE
INCREASED ARBITRARILY."  (FN16) THE HOUSE JOINT CONFERENCE COMMITTEE
REPORT CONFIRMED THE VIEW THAT THE SENATE AND HOUSE VERSIONS OF TITLE I
CONTAIN "SIMILAR PROVISIONS."  (FN17)  SENATOR GOLDWATER, A MEMBER OF
THE JOINT COMMITTEE THAT CONSIDERED S. 1555 AND LANDRUM-GRIFFIN, STATED
IN HIS TEXTUAL ANALYSIS OF BOTH BILLS THAT THE HOUSE VERSION OF SEC.
101(A)(3)(B) WAS TECHNICALLY PREFERABLE AND THAT THE DIFFERENCES WERE
IN RESPECT TO THE EXPANDED METHODS OF APPROVAL UNDER THE HOUSE BILL AND
THE APPLICABILITY OF THE HOUSE BILL ONLY TO DUES INCREASES RATHER THAN
ALL CHANGES.  (FN18)  AND SENATOR KUCHEL, THE AUTHOR OF THE SENATE
VERSION OF THE DUES PROPOSAL, AND A CONFEREE, STATED THAT THE LANDRUM
GRIFFIN BILL "ADOPTED SUBSTANTIALLY THE SAME BILL OF RIGHTS LANGUAGE"
AS HE HAD EARLIER AUTHORED.  (FN19)  IN LIGHT OF THE FACT THAT THE
HOUSE CHANGES WERE IN THE DIRECTION OF AFFORDING UNIONS MORE LATITUDE
FOR RAISING DUES AND THE FACT THAT NO ONE, IN THE HOUSE OR SENATE,
PERCEIVED THAT THE HOUSE VERSION WOULD RESTRICT VOTING AT A CONVENTION
TO A HEAD COUNT OF THE DELEGATES, WE THINK IT ABUNDANTLY CLEAR THAT
SEC. 101(A)(3)(B) WAS INTENDED TO GUARANTEE A MEMBER'S "RIGHT TO
PARTICIPATE IN DECIDING UPON THE RATE OF DUES, INITIATION FEES, AND
ASSESSMENTS."  H.R. REP. NO. 741 ON H.R. 8342, 86TH CONG., 1ST SESS.,
AT 7, I LEG.  HIST.  759, 765, BUT NOT TO BAR A WELL-KNOWN SYSTEM OF
VOTING EMBODIED IN MANY UNION CONSTITUTIONS WHICH WELL SERVES THAT
END. 

OTHER PROVISIONS OF THE LMRDA CONFIRM THIS VIEW.  SECTION
101(A)(3)(B) IS A PART OF TITLE I, ENTITLED THE "BILL OF RIGHTS OF
MEMBERS OF LABOR ORGANIZATIONS."  THIS TITLE GUARANTEES TO EVERY MEMBER
OF A LABOR ORGANIZATION EQUAL RIGHTS AND PRIVILEGES TO VOTE, TO ATTEND
MEETINGS, AND TO PARTICIPATE IN THE DELIBERATIONS AND BUSINESS OF SUCH
MEETINGS.  SECTION 101(A)(3)(B) FORMS A PART OF THIS FRAMEWORK BY
REQUIRING PARTICIPATION BY ALL MEMBERS, EITHER DIRECTLY OR THROUGH
THEIR ELECTED REPRESENTATIVES, ON CERTAIN UNION MATTERS THOUGHT TO BE
OF SPECIAL IMPORTANCE.  WE FIND NOTHING TO INDICATE THAT CONGRESS
THOUGHT THIS OBJECTIVE WOULD BE BETTER FULFILLED BY ALLOWING A DELEGATE
TO CAST ONE VOTE, REGARDLESS OF THE SIZE OF HIS CONSTITUENCY, THAN BY
PERMITTING HIM TO CAST A VOTE EQUAL TO THE NUMBER OF MEMBERS HE
REPRESENTS.  AS A PART OF THE ACT'S PURPOSE OF PROTECTING AND FOSTERING
PARTICIPATION BY THE RANK AND FILE IN THE AFFAIRS OF THE UNION, TITLE
IV CONTAINS ELABORATE STATUTORY SAFEGUARDS FOR THE ELECTION OF UNION
OFFICERS.  BUT NOTHING IN THAT TITLE PROHIBITS ELECTION OF UNION
OFFICERS BY DELEGATES VOTING AT A CONVENTION IN ACCORDANCE WITH THE
NUMBER OF MEMBERS THEY REPRESENT.  (FN20)  RESPONDENTS DO NOT
DEMONSTRATE ANY DIFFERENCES BETWEEN WEIGHTED VOTING FOR OFFICERS OF THE
UNION AND WEIGHTED VOTING ON CHANGES IN FINANCIAL EXACTIONS THAT WOULD
SUPPORT THE ASSERTED DIFFERENCE IN VOTING PROCEDURES APPLICABLE TO
EACH.  IT IS ARGUED THAT DELEGATES MAY NOT ASCERTAIN OR FOLLOW THE
WISHES OF THE MEMBERS IN RESPECT TO DUES AND ASSESSMENTS.  BUT FEW
ISSUES ARE MORE LIKELY TO AROUSE ACTIVE OPPOSITION AND GENERAL
MEMBERSHIP PARTICIPATION THAN A PROPOSAL TO INCREASE DUES.  FURTHER,
THIS ARGUMENT IS TOO BROAD, FOR IT QUESTIONS THE VALIDITY OF A SYSTEM
OF REPRESENTATIVE UNION GOVERNMENT AND HAS LITTLE TO DO WITH THE MANNER
IN WHICH THE REPRESENTATIVE'S VOTE IS COUNTED.  SECTION 101(A)(3)(B),
AS WELL AS TITLE IV, AUTHORIZES A REPRESENTATIVE SYSTEM OF GOVERNMENT
AND DOES NOT REQUIRE A TOWN MEETING FOR ACTION BY AN INTERNATIONAL OR
NATIONAL UNION.  (FN21)  TO THAT END CONGRESS RECOGNIZED THE KEY ROLE
OF ELECTIONS IN THE PROCESS OF UNION SELF-GOVERNMENT AND SURROUNDED IT
WITH MANY SAFEGUARDS TO PROVIDE A FAIR ELECTION AND TO GUARANTEE
MEMBERSHIP PARTICIPATION. 

THE PERVADING PREMISE OF BOTH THESE TITLES IS THAT THERE SHOULD BE
FULL AND ACTIVE PARTICIPATION BY THE RANK AND FILE IN THE AFFAIRS OF
THE UNION.  WE THINK OUR DECISION TODAY THAT THE VOTE OF AN ELECTED
DELEGATE MAY REFLECT THE SIZE OF HIS CONSTITUENCY IS WHOLLY CONSISTENT
WITH THAT PURPOSE. 

ACCORDINGLY, THE JUDGMENTS BELOW ARE REVERSED AND THE CASE IS
REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  73 STAT. 519, 522, 29 U.S.C. SEC. 411(A)(3) (1958 ED., SUPP.
V). 

"(3)  DUES, INITIATION FEES, AND ASSESSMENTS.  - EXCEPT IN THE CASE
OF A FEDERATION OF NATIONAL OR INTERNATIONAL LABOR ORGANIZATIONS, THE
RATES OF DUES AND INITIATION FEES PAYABLE BY MEMBERS OF ANY LABOR
ORGANIZATION IN EFFECT ON SEPTEMBER 14, 1959 SHALL NOT BE INCREASED,
AND NO GENERAL OR SPECIAL ASSESSMENT SHALL BE LEVIED UPON SUCH MEMBERS,
EXCEPT: 

"(A)  IN THE CASE OF A LOCAL LABOR ORGANIZATION, (I) BY MAJORITY VOTE
BY SECRET BALLOT OF THE MEMBERS IN GOOD STANDING VOTING AT A GENERAL OR
SPECIAL MEMBERSHIP MEETING, AFTER REASONABLE NOTICE OF THE INTENTION TO
VOTE UPON SUCH QUESTIONS, OR (II) BY MAJORITY VOTE OF THE MEMBERS IN
GOOD STANDING VOTING IN A MEMBERSHIP REFERENDUM CONDUCTED BY SECRET
BALLOT; OR: 

"(B)  IN THE CASE OF A LABOR ORGANIZATION, OTHER THAN A LOCAL LABOR
ORGANIZATION OR A FEDERATION OF NATIONAL OR INTERNATIONAL LABOR
ORGANIZATIONS, (I) BY MAJORITY VOTE OF THE DELEGATES VOTING AT A
REGULAR CONVENTION, OR AT A SPECIAL CONVENTION OF SUCH LABOR
ORGANIZATION HELD UPON NOT LESS THAN THIRTY DAYS' WRITTEN NOTICE TO THE
PRINCIPAL OFFICE OF EACH LOCAL OR CONSTITUENT LABOR ORGANIZATION
ENTITLED TO SUCH NOTICE, OR (II) BY MAJORITY VOTE OF THE MEMBERS IN
GOOD STANDING OF SUCH LABOR ORGANIZATION VOTING IN A MEMBERSHIP
REFERENDUM CONDUCTED BY SECRET BALLOT, OR (III) BY MAJORITY VOTE OF THE
MEMBERS OF THE EXECUTIVE BOARD OR SIMILAR GOVERNING BODY OF SUCH LABOR
ORGANIZATION, PURSUANT TO EXPRESS AUTHORITY CONTAINED IN THE
CONSTITUTION AND BYLAWS OF SUCH LABOR ORGANIZATION:  PROVIDED, THAT
SUCH ACTION ON THE PART OF THE EXECUTIVE BOARD OR SIMILAR GOVERNING
BODY SHALL BE EFFECTIVE ONLY UNTIL THE NEXT REGULAR CONVENTION  OF SUCH
LABOR ORGANIZATION." 

FN2  ARTICLE 5 OF FEDERATION'S CONSTITUTION PROVIDES: 

"ALL LOCALS OF THIS FEDERATION OF ONE HUNDRED AND FIFTY MEMBERS OR
LESS SHALL BE ENTITLED TO ONE DELEGATE.  ALL LOCALS SHALL BE ENTITLED
TO ONE DELEGATE FOR EACH ONE HUNDRED MEMBERS OR A MAJOR FRACTION
THEREOF, NOT EXCEEDING THREE DELEGATES FOR ANY ONE LOCAL, BUT EACH
LOCAL SHALL BE ENTITLED TO ONE VOTE FOR EACH ONE HUNDRED OR MAJOR
FRACTION THEREOF, BUT NO LOCAL SHALL CAST MORE THAN TEN VOTES, AND THE
NUMBER EACH LOCAL IS ENTITLED TO SHALL BE COMPUTED FROM THE LAST REPORT
MADE ON JANUARY 1ST BEFORE THE CONVENTION BY THE LOCAL, ACCORDING TO
THE BOOKS OF THE TREASURER.  ON QUESTIONS AFFECTING A CHANGE IN THE
LAWS, EACH LOCAL MAY, UPON ROLL CALL, CAST AS MANY VOTES AS IT HAS
MEMBERS, AS PER BOOK OF THE TREASURER, A.F. OF M. ALL LAWS SO PASSED
SHALL BE REFERRED TO A CONVENTION COMMITTEE CONSISTING OF THE EXECUTIVE
BOARD, A.F. OF M., AND CHAIRMEN OF ALL COMMITTEES, WHO MAY SANCTION OR
VETO SAME, THEIR ACTION TO BE FINAL.  ROLL CALL SHALL BE DEMANDABLE AND
HAD UNDER THIS ARTICLE ON DEMAND OF TEN DELEGATES OR FIVE LOCALS." 

FN3  S. 1137, 86TH CONG., 1ST SESS., I LEGISLATIVE HISTORY OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 260, 269, 278
(1959)(HEREAFTER LEG.  HIST.). 


"FREEDOM FROM ARBITRARY FINANCIAL EXACTIONS.  - RULES RELATING TO THE
RATE OF DUES AND INITIATION FEES, OR THE LEVYING OF ANY SPECIAL OR
GENERAL ASSESSMENT, MAY BE ADOPTED OR AMENDED ONLY AFTER DUE NOTICE AND
BY GENERAL VOTE." 


"VOTING AT CONVENTIONS.  - ALL DELEGATES ELECTED OR DESIGNATED BY THE
CONSTITUENT UNITS OF AN INTERNATIONAL LABOR ORGANIZATION  ...  TO
REPRESENT SUCH CONSTITUENT UNIT AT ANY MEETING OR CONVENTION HELD BY
SUCH LABOR ORGANIZATION SHALL HAVE A VOTE IN ALL ELECTIONS FOR OFFICERS
AND UPON OTHER MATTERS BROUGHT BEFORE SUCH MEETING OR CONVENTION FOR
ACTION OR RATIFICATION BY VOTE, WHICH VOTE SHALL BE NUMERICALLY
EQUIVALENT, OR PROPORTIONATE, TO THE NUMBER OF THE MEMBERS OF SUCH
CONSTITUENT UNIT AS DISCLOSED BY THE ROSTER OF MEMBERS  ...  ." 

FN4  THE SELECT COMMITTEE ON IMPROPER ACTIVITIES IN THE LABOR AND
MANAGEMENT FIELD. 

FN5  THAT THE FINDINGS OF THE MCCLELLAN COMMITTEE WERE SIGNIFICANT IN
THE DRAFTING OF THE LMRDA IS WELL REFLECTED IN THE COMMITTEE REPORTS. 

"THE COMMITTEE REPORTED BILL IS PRIMARILY DESIGNED TO CORRECT THE
ABUSES WHICH HAVE CREPT INTO LABOR AND MANAGEMENT AND WHICH HAVE BEEN
THE SUBJECT OF INVESTIGATION BY THE COMMITTEE ON IMPROPER ACTIVITIES IN
THE LABOR AND MANAGEMENT FIELD FOR THE PAST SEVERAL YEARS  ...  .  THE
COMMITTEE-REPORTED BILL IS BASED ON THE LEGISLATION APPROVED BY THE
SENATE LAST YEAR AND THUS IT TOO IMPLEMENTS THE REMAINING
RECOMMENDATIONS OF THE MCCLELLAN COMMITTEE."  S. REP. NO. 187, 86TH
CONG., 1ST SESS., AT 2, I LEG.  HIST.  397, 398. 

"THE COMMITTEE REPORTED BILL IS PRIMARILY INTENDED TO CORRECT THE
ABUSES WHICH HAVE CREPT INTO THE LABOR AND MANAGEMENT FIELD AND WHICH
HAVE BEEN THE SUBJECT OF INVESTIGATION BY THE SENATE COMMITTEE ON
IMPROPER ACTIVITIES IN THE LABOR AND MANAGEMENT FIELD FOR THE PAST
SEVERAL YEARS."  H.R. REP. NO. 741, 86TH CONG., 1ST SESS., AT 1, I
LEG.  HIST.  759.  SEE ALSO 105 CONG. REC. 15530, II LEG.  HIST.  1566
(REMARKS OF CONGRESSMAN GRIFFIN). 

FN6  LEISERSON, AMERICAN TRADE UNION DEMOCRACY 129-132 (1959). 

"EXCEPT IN THE FEW UNIONS WHERE LOCALS ARE ENTITLED TO BUT ONE
DELEGATE WITH ONE VOTE, THE NUMBER OF VOTES IN A CONVENTION IS ALWAYS
GREATER THAN THE NUMBER OF DELEGATES.  ALTHOUGH PROXY VOTING IS
GENERALLY PROHIBITED (LONGSHOREMEN AND BLACKSMITHS ARE EXCEPTIONS),
EVERY CONVENTION DELEGATE CASTS NOT ONLY HIS OWN VOTE, BUT A SHARE OF
THE VOTING STRENGTH OF THE LOCAL UNION HE REPRESENTS AS WELL.  THIS
VOTING STRENGTH VARIES WITH THE SIZE OF THE LOCALS, AND THE TOTAL VOTE
OF A LOCAL UNION MAY BE DIVIDED AMONG ITS DELEGATES OR ONE OF THEM MAY
CAST ALL ITS VOTES.  THE BASIS OF REPRESENTATION AND THE METHODS OF
BASING VOTING STRENGTH ON SIZE OF LOCAL MEMBERSHIPS DIFFER AMONG THE
UNIONS  ...  ."  ID., AT 129-130. 

SEE ALSO UNITED STATES DEPARTMENT OF LABOR, BULLETIN NO. 1239, UNION
CONSTITUTION PROVISIONS: ELECTION AND TENURE OF NATIONAL AND
INTERNATIONAL UNION OFFICERS, AT 15 (1958); NATIONAL INDUSTRIAL
CONFERENCE BOARD, HANDBOOK OF UNION GOVERNMENT, STRUCTURE AND
PROCEDURES, STUDIES IN PERSONNEL POLICY, NO. 150, AT 73 (1955). 

FN7  S. 1555, 86TH CONG., 1ST SESS., I LEG.  HIST.  338. 

FN8  105 CONG. REC. 6475, II LEG.  HIST.  1102. 

FN9  105 CONG. REC. 6693-6694, 6727, II LEG.  HIST.  1220-1221,
1239. 

FN10  105 CONG. REC. 6719, II LEG.  HIST.  1232. 

FN11  S. 1555, 86TH CONG., 1ST SESS., I LEG.  HIST.  516. 

FN12  HEARINGS BEFORE A JOINT SUBCOMMITTEE OF THE COMMITTEE ON
EDUCATION AND LABOR, HOUSE OF REPRESENTATIVES, 86TH CONG., 1ST SESS.,
ON H.R. 3540, H.R. 3302, H.R. 4473, AND H.R. 4474 AND RELATED BILLS
REGARDING LABOR-MANAGEMENT REFORM LEGISLATION. 

FN13  ID., AT 1517-1518. 

FN14  H.R. 8342, 86TH CONG., 1ST SESS., I LEG.  HIST.  687, 697. 

FN15  H.R. 8400, 86TH CONG., 1ST SESS, 105 CONG. REC. 15859-15860, II
LEG.  HIST.  1527, 1691-1692. 

FN16  105 CONG. REC. 15530, II LEG.  HIST.  1566. 

FN17  H.R. REP. NO. 1147 ON S. 1555, 86TH CONG., 1ST SESS., I LEG. 
HIST.  934-935. 

FN18  105 CONG. REC. 16487, II LEG.  HIST.  1357. 

FN19  105 CONG. REC. 16760, II LEG.  HIST.  1373. 

FN20  SEE UNITED STATES DEPARTMENT OF LABOR, TECHNICAL ASSISTANCE AID
NO. 5, ELECTING UNION OFFICERS (REV. SEPT. 1962). 

FN21  THE SENATE COMMITTEE REPORT ACCOMPANYING S. 1555 STATED IN THIS
REGARD: 

"UNDER THE NATIONAL LABOR RELATIONS ACT AND THE RAILWAY LABOR ACT, A
LABOR ORGANIZATION HAS VAST RESPONSIBILITY FOR ECONOMIC WELFARE OF THE
INDIVIDUAL MEMBERS WHOM IT REPRESENTS.  UNION MEMBERS HAVE A VITAL
INTEREST, THEREFORE, IN THE POLICIES AND CONDUCT OF UNION AFFAIRS.  TO
THE EXTENT THAT UNION PROCEDURES ARE DEMOCRATIC THEY PERMIT THE
INDIVIDUAL TO SHARE IN THE FORMULATION OF UNION POLICY.  THIS IS NOT TO
SAY THAT IN ORDER TO HAVE DEMOCRATICALLY RESPONSIVE UNIONS, IT IS
NECESSARY TO HAVE EACH UNION MEMBER MAKE DECISIONS ON DETAIL AS IN A
NEW ENGLAND TOWN MEETING.  WHAT IS REQUIRED IS THE OPPORTUNITY TO
INFLUENCE POLICY AND LEADERSHIP BY FREE AND PERIODIC ELECTIONS."  S.
REP. NO. 187, 86TH CONG., 1ST SESS., AT 6-7, I LEG.  HIST.  397, 402
403. 

THE CHIEF JUSTICE AND MR. JUSTICE GOLDBERG TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :



MCLAUGHLIN V. FLORIDA 379 U.S. 184 


NO. 11.  ARGUED OCTOBER 13-14, 1964.  - DECIDED DECEMBER 7, 1964.  - 153
SO. 2D 1, REVERSED. 


A FLORIDA CRIMINAL STATUTE PROHIBITS AN UNMARRIED INTERRACIAL COUPLE
FROM HABITUALLY LIVING IN AND OCCUPYING THE SAME ROOM IN THE
NIGHTTIME.  NO OTHER FLORIDA STATUTE PENALIZES PRECISELY THE SAME
CONDUCT WHEN ENGAGED IN BY MEMBERS OF THE SAME RACE.  HELD:  THE
FLORIDA STATUTE DENIES THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY
THE FOURTEENTH AMENDMENT AND IS INVALID.  PP. 184-196. 

MCLAUGHLIN ET AL. V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

AT ISSUE IN THIS CASE IS THE VALIDITY OF A CONVICTION UNDER SEC.
798.05 OF THE FLORIDA STATUTES, PROVIDING THAT: 

"ANY NEGRO MAN AND WHITE WOMAN, OR ANY WHITE MAN AND NEGRO WOMAN, WHO
ARE NOT MARRIED TO EACH OTHER, WHO SHALL HABITUALLY LIVE IN AND OCCUPY
IN THE NIGHTTIME THE SAME ROOM SHALL EACH BE PUNISHED BY IMPRISONMENT
NOT EXCEEDING TWELVE MONTHS, OR BY FINE NOT EXCEEDING FIVE HUNDRED
DOLLARS." 

BECAUSE THE SECTION APPLIES ONLY TO A WHITE PERSON AND A NEGRO WHO
COMMIT THE SPECIFIED ACTS AND BECAUSE NO COUPLE OTHER THAN ONE MADE UP
OF A WHITE AND A NEGRO IS SUBJECT TO CONVICTION UPON PROOF OF THE
ELEMENTS COMPRISING THE OFFENSE IT PROSCRIBES, WE HOLD SEC.  798.05
INVALID AS A DENIAL OF THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY
THE FOURTEENTH AMENDMENT. 

THE CHALLENGED STATUTE IS A PART OF CHAPTER 798 ENTITLED "ADULTERY
AND FORNICATION."  (FN1) SECTION 798.01 FORBIDS LIVING IN ADULTERY AND
SEC. 798.02 PROSCRIBES LEWD COHABITATION.  BOTH SECTIONS ARE OF GENERAL
APPLICATION, BOTH REQUIRE PROOF OF INTERCOURSE TO SUSTAIN A CONVICTION,
AND BOTH AUTHORIZE IMPRISONMENT UP TO TWO YEARS.  (FN2)  SECTION
798.03, ALSO OF GENERAL APPLICATION, PROSCRIBES FORNICATION (FN3) AND
AUTHORIZES A THREE-MONTH JAIL SENTENCE.  THE FOURTH SECTION OF THE
CHAPTER, 798.04, MAKES CRIMINAL A WHITE PERSON AND A NEGRO'S LIVING
TOGETHER IN ADULTERY OR FORNICATION.  A ONE-YEAR PRISON SENTENCE IS
AUTHORIZED.  THE CONDUCT IT REACHES APPEARS TO BE THE SAME AS IS
PROSCRIBED UNDER THE FIRST TWO SECTIONS OF THE CHAPTER.  (FN4)  SECTION
798.05, THE SECTION AT ISSUE IN THIS CASE, APPLIES ONLY TO A WHITE
PERSON AND A NEGRO WHO HABITUALLY OCCUPY THE SAME ROOM AT NIGHTTIME. 
THIS OFFENSE, HOWEVER, IS DISTINGUISHABLE FROM THE OTHER SECTIONS OF
THE CHAPTER IN THAT IT IS THE ONLY ONE WHICH DOES NOT REQUIRE PROOF OF
INTERCOURSE ALONG WITH THE OTHER ELEMENTS OF THE CRIME.  (FN5) 

APPELLANTS WERE CHARGED WITH A VIOLATION OF SEC. 798.05.  THE
ELEMENTS OF THE OFFENSE AS DESCRIBED BY THE TRIAL JUDGE ARE THE (1)
HABITUAL OCCUPATION OF A ROOM AT NIGHT, (2) BY A NEGRO AND A WHITE
PERSON (3) WHO ARE NOT MARRIED.  THE STATE PRESENTED EVIDENCE GOING TO
EACH FACTOR, APPELLANTS' CONSTITUTIONAL CONTENTIONS WERE OVERRULED AND
THE JURY RETURNED A VERDICT OF GUILTY.  SOLELY ON THE AUTHORITY OF PACE
V. ALABAMA, 106 U.S. 583, THE FLORIDA SUPREME COURT AFFIRMED AND
SUSTAINED THE VALIDITY OF SEC. 798.05 AS AGAINST APPELLANTS' CLAIMS
THAT THE SECTION DENIED THEM EQUAL PROTECTION OF THE LAWS GUARANTEED BY
THE FOURTEENTH AMENDMENT.  WE NOTED PROBABLE JURISDICTION, 377 U.S.
914.  WE DEAL WITH THE SINGLE ISSUE OF EQUAL PROTECTION AND ON THIS
BASIS SET ASIDE THESE CONVICTIONS.  (FN6)

                      I. 

IT IS READILY APPARENT THAT SEC. 798.05 TREATS THE INTERRACIAL COUPLE
MADE UP OF A WHITE PERSON AND A NEGRO DIFFERENTLY THAN IT DOES ANY
OTHER COUPLE.  NO COUPLE OTHER THAN A NEGRO AND A WHITE PERSON CAN BE
CONVICTED UNDER SEC. 798.05 AND NO OTHER SECTION PROSCRIBES THE PRECISE
CONDUCT BANNED BY SEC. 798.05.  FLORIDA MAKES NO CLAIM TO THE CONTRARY
IN THIS COURT.  HOWEVER, ALL WHITES AND NEGROES WHO ENGAGE IN THE
FORBIDDEN CONDUCT ARE COVERED BY THE SECTION AND EACH MEMBER OF THE
INTERRACIAL COUPLE IS SUBJECT TO THE SAME PENALTY. 

IN THIS SITUATION, PACE V. ALABAMA, SUPRA, IS RELIED UPON AS
CONTROLLING AUTHORITY.  IN OUR VIEW, HOWEVER, PACE REPRESENTS A LIMITED
VIEW OF THE EQUAL PROTECTION CLAUSE WHICH HAS NOT WITHSTOOD ANALYSIS IN
THE SUBSEQUENT DECISIONS OF THIS COURT.  IN THAT CASE, THE COURT LET
STAND A CONVICTION UNDER AN ALABAMA STATUTE FORBIDDING ADULTERY OR
FORNICATION BETWEEN A WHITE PERSON AND A NEGRO AND IMPOSING A GREATER
PENALTY THAN ALLOWED UNDER ANOTHER ALABAMA STATUTE OF GENERAL
APPLICATION AND PROSCRIBING THE SAME CONDUCT WHATEVER THE RACE OF THE
PARTICIPANTS.  THE OPINION ACKNOWLEDGED THAT THE PURPOSE OF THE EQUAL
PROTECTION CLAUSE "WAS TO PREVENT HOSTILE AND DISCRIMINATING STATE
LEGISLATION AGAINST ANY PERSON OR CLASS OF PERSONS" AND THAT EQUALITY
OF PROTECTION UNDER THE LAWS IMPLIES THAT ANY PERSON, "WHATEVER HIS
RACE  ...  SHALL NOT BE SUBJECTED, FOR THE SAME OFFENCE, TO ANY GREATER
OR DIFFERENT PUNISHMENT."  106 U.S., AT 584.  BUT TAKING QUITE
LITERALLY ITS OWN WORDS, "FOR THE SAME OFFENCE", THE COURT POINTED OUT
THAT ALABAMA HAD DESIGNATED AS A SEPARATE OFFENSE THE COMMISSION BY A
WHITE PERSON AND A NEGRO OF THE IDENTICAL ACTS FORBIDDEN BY THE GENERAL
PROVISIONS.  THERE WAS, THEREFORE, NO IMPERMISSIBLE DISCRIMINATION
BECAUSE THE DIFFERENCE IN PUNISHMENT WAS "DIRECTED AGAINST THE OFFENCE
DESIGNATED" AND BECAUSE IN THE CASE OF EACH OFFENSE ALL WHO COMMITTED
IT, WHITE AND NEGRO, WERE TREATED ALIKE.  (FN7)  UNDER PACE THE ALABAMA
LAW REGULATING THE CONDUCT OF BOTH NEGROES AND WHITES SATISFIED THE
EQUAL PROTECTION CLAUSE SINCE IT APPLIED EQUALLY TO AND AMONG THE
MEMBERS OF THE CLASS WHICH IT REACHED WITHOUT REGARD TO THE FACT THAT
THE STATUTE DID NOT REACH OTHER TYPES OF COUPLES PERFORMING THE
IDENTICAL CONDUCT AND WITHOUT ANY NECESSITY TO JUSTIFY THE DIFFERENCE
IN PENALTY ESTABLISHED FOR THE TWO OFFENSES.  BECAUSE EACH OF THE
ALABAMA LAWS APPLIED EQUALLY TO THOSE TO WHOM IT WAS APPLICABLE, THE
DIFFERENT TREATMENT ACCORDED INTERRACIAL AND INTRARACIAL COUPLES WAS
IRRELEVANT.  (FN8) 

THIS NARROW VIEW OF THE EQUAL PROTECTION CLAUSE WAS SOON SWEPT AWAY. 
WHILE ACKNOWLEDGING THE CURRENCY OF THE VIEW THAT "IF THE LAW DEALS
ALIKE WITH ALL OF A CERTAIN CLASS" IT IS NOT OBNOXIOUS TO THE EQUAL
PROTECTION CLAUSE AND THAT "AS A GENERAL PROPOSITION, THIS IS
UNDENIABLY TRUE," THE COURT IN GULF, C.&S.F.R. CO. V. ELLIS, 165 U.S.
150, 155, SAID THAT IT  WAS "EQUALLY TRUE THAT SUCH CLASSIFICATION
CANNOT BE MADE ARBITRARILY  ...  ."  CLASSIFICATION "MUST ALWAYS REST
UPON SOME DIFFERENCE WHICH BEARS A REASONABLE AND JUST RELATION TO THE
ACT IN RESPECT TO WHICH THE CLASSIFICATION IS PROPOSED, AND CAN NEVER
BE MADE ARBITRARILY AND WITHOUT ANY SUCH BASIS."  IBID. "ARBITRARY
SELECTION CAN NEVER BE JUSTIFIED BY CALLING IT CLASSIFICATION."  ID.,
AT 159.  THIS APPROACH WAS CONFIRMED IN ATCHISON, T.&S.F.R. CO. V.
MATTHEWS, 174 U.S. 96, 104-105, AND IN NUMEROUS OTHER CASES.  (FN9)
SEE, E.G., AMERICAN SUGAR REF. CO. V. LOUISIANA, 179 U.S. 89, 92;
SOUTHERN R. CO. V. GREENE, 216 U.S. 400, 417; F.S. ROYSTER GUANO CO. V.
VIRGINIA, 253 U.S. 412, 415; AIR-WAY ELEC.  APPLIANCE CORP. V. DAY, 266
U.S. 71, 85; LOUISVILLE GAS & ELEC.  CO. V. COLEMAN, 277 U.S. 32, 37
39; HARTFORD STEAM BOILER INSPECTION & INS.  CO. V. HARRISON, 301 U.S.
459, 461-463; SKINNER V. OKLAHOMA EX REL. WILLIAMSON, 316 U.S. 535, 541
543; KOTCH V. PILOT COMM'RS, 330 U.S. 552, 556-557; HERNANDEZ V. TEXAS,
347 U.S. 475, 478; GRIFFIN V. ILLINOIS, 351 U.S. 12, 17-19 (OPINION OF
BLACK, J., ANNOUNCING JUDGMENT), 21-22 (FRANKFURTER, J., CONCURRING);
MOREY V. DOUD, 354 U.S. 457; 465-466; CENTRAL R. CO. V. PENNSYLVANIA,
370 U.S. 607, 617-618; DOUGLAS V. CALIFORNIA, 372 U.S. 353, 356-357. 

JUDICIAL INQUIRY UNDER THE EQUAL PROTECTION CLAUSE, THEREFORE, DOES
NOT END WITH A SHOWING OF EQUAL APPLICATION AMONG THE MEMBERS OF THE
CLASS DEFINED BY THE LEGISLATION.  THE COURTS MUST REACH AND DETERMINE
THE QUESTION WHETHER THE CLASSIFICATIONS DRAWN IN A STATUTE ARE
REASONABLE IN LIGHT OF ITS PURPOSE - IN THIS CASE, WHETHER THERE IS AN
ARBITRARY OR INVIDIOUS DISCRIMINATION BETWEEN THOSE CLASSES COVERED BY
FLORIDA'S COHABITATION LAW AND THOSE EXCLUDED.  THAT QUESTION IS WHAT
PACE IGNORED AND WHAT MUST BE FACED HERE. 

NORMALLY, THE WIDEST DISCRETION IS ALLOWED THE LEGISLATIVE JUDGMENT
IN DETERMINING WHETHER TO ATTACK SOME, RATHER THAN ALL, OF THE
MANIFESTATIONS OF THE EVIL AIMED AT; AND NORMALLY THAT JUDGMENT IS
GIVEN THE BENEFIT OF EVERY CONCEIVABLE CIRCUMSTANCE WHICH MIGHT SUFFICE
TO CHARACTERIZE THE CLASSIFICATION AS REASONABLE RATHER THAN ARBITRARY
AND INVIDIOUS.  SEE, E.G., MCGOWAN V. MARYLAND, 366 U.S. 420, 425-426;
TWO GUYS FROM HARRISON-ALLENTOWN, INC. V. MCGINLEY, 366 U.S. 582, 591
592; ALLIED STORES OF OHIO, INC. V. BOWERS, 358 U.S. 522, 528; RAILWAY
EXPRESS AGENCY, INC. V. NEW YORK, 336 U.S. 106, 110; LINDSLEY V.
NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-79.  BUT WE DEAL HERE WITH
CLASSIFICATION BASED UPON THE RACE OF THE PARTICIPANTS, WHICH MUST BE
VIEWED IN LIGHT OF THE HISTORICAL FACT THAT THE CENTRAL PURPOSE OF THE
FOURTEENTH AMENDMENT WAS TO ELIMINATE RACIAL DISCRIMINATION EMANATING
FROM OFFICIAL SOURCES IN THE STATES.  THIS STRONG POLICY RENDERS RACIAL
CLASSIFICATIONS "CONSTITUTIONALLY SUSPECT," BOLLING V. SHARPE, 347 U.S.
497, 499; AND SUBJECT TO THE "MOST RIGID SCRUTINY," KOREMATSO V. UNITED
STATES, 323 U.S. 214, 216; AND "IN MOST CIRCUMSTANCES IRRELEVANT" TO
ANY CONSTITUTIONALLY ACCEPTABLE LEGISLATIVE PURPOSE, HIRABAYASHI V.
UNITED STATES, 320 U.S. 81, 100.  THUS IT IS THAT RACIAL
CLASSIFICATIONS HAVE BEEN HELD INVALID IN A VARIETY OF CONTEXTS.  SEE,
E.G., VIRGINIA BOARD OF ELECTIONS V. HAMM, 379 U.S. 19 (DESIGNATION OF
RACE IN VOTING AND PROPERTY RECORDS); ANDERSON V. MARTIN 375 U.S. 399
(DESIGNATION OF RACE ON NOMINATION PAPERS AND BALLOTS); WATSON V. CITY
OF MEMPHIS, 373 U.S. 526 (SEGREGATION IN PUBLIC PARKS AND PLAYGROUNDS);
BROWN V. BOARD OF EDUCATION, 349 U.S. 294 (SEGREGATION IN PUBLIC
SCHOOLS). 

WE DEAL HERE WITH A RACIAL CLASSIFICATION EMBODIED IN A CRIMINAL
STATUTE.  IN THIS CONTEXT, WHERE THE POWER OF THE STATE WEIGHS MOST
HEAVILY UPON THE INDIVIDUAL OR THE GROUP, WE MUST BE ESPECIALLY
SENSITIVE TO THE POLICIES OF THE EQUAL PROTECTION CLAUSE WHICH, AS
REFLECTED IN CONGRESSIONAL ENACTMENTS DATING FROM 1870, WERE INTENDED
TO SECURE "THE FULL AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS FOR
THE SECURITY OF PERSONS AND PROPERTY" AND TO SUBJECT ALL PERSONS "TO
LIKE PUNISHMENT, PAINS, PENALTIES, TAXES, LICENSES, AND EXACTIONS OF
EVERY KIND, AND TO NO OTHER."  R.S. SEC. 1977, 42 U.S.C.  SEC. 1981
(1958 ED.). 

OUR INQUIRY, THEREFORE, IS WHETHER THERE CLEARLY APPEARS IN THE
RELEVANT MATERIALS SOME OVERRIDING STATUTORY PURPOSE REQUIRING THE
PROSCRIPTION OF THE SPECIFIED CONDUCT WHEN ENGAGED IN BY A WHITE PERSON
AND A NEGRO, BUT NOT OTHERWISE.  WITHOUT SUCH JUSTIFICATION THE RACIAL
CLASSIFICATION CONTAINED IN SEC. 798.05 IS REDUCED TO AN INVIDIOUS
DISCRIMINATION FORBIDDEN BY THE EQUAL PROTECTION CLAUSE. 

THE FLORIDA SUPREME COURT, RELYING UPON PACE V. ALABAMA, SUPRA, FOUND
NO LEGAL DISCRIMINATION AT ALL AND GAVE NO CONSIDERATION TO STATUTORY
PURPOSE.  THE STATE IN ITS BRIEF IN THIS COURT, HOWEVER, SAYS THAT THE
LEGISLATIVE PURPOSE OF SEC. 798.05, LIKE THE OTHER SECTIONS OF CHAPTER
798, WAS TO PREVENT BREACHES OF THE BASIC CONCEPTS OF SEXUAL DECENCY;
(FN10) AND WE SEE NO REASON TO QUARREL WITH THE STATE'S
CHARACTERIZATION OF THIS STATUTE, DEALING AS IT DOES WITH ILLICIT
EXTRAMARITAL AND PREMARITAL PROMISCUITY. 

WE FIND NOTHING IN THIS SUGGESTED LEGISLATIVE PURPOSE, HOWEVER, WHICH
MAKES IT ESSENTIAL TO PUNISH PROMISCUITY OF ONE RACIAL GROUP AND NOT
THAT OF ANOTHER.  THERE IS NO SUGGESTION THAT A WHITE PERSON AND A
NEGRO ARE ANY MORE LIKELY HABITUALLY TO OCCUPY THE SAME ROOM TOGETHER
THAN THE WHITE OR THE NEGRO COUPLE OR TO ENGAGE IN ILLICIT INTERCOURSE
IF THEY DO.  SECTIONS 798.01-798.05 INDICATE NO LEGISLATIVE CONVICTION
THAT PROMISCUITY BY THE INTERRACIAL COUPLE PRESENTS ANY PARTICULAR
PROBLEMS REQUIRING SEPARATE OR DIFFERENT TREATMENT IF THE SUGGESTED
OVER-ALL POLICY OF THE CHAPTER IS TO BE ADEQUATELY SERVED.  SECTIONS
798.01-798.03 DEAL WITH ADULTERY, LEWD COHABITATION AND FORNICATION, IN
THAT ORDER.  ALL ARE OF GENERAL APPLICATION.  SECTION 798.04 PROHIBITS
A WHITE AND A NEGRO FROM LIVING IN A STATE OF ADULTERY OR FORNICATION
AND IMPOSES A LESSER PERIOD OF IMPRISONMENT THAN DOES EITHER SEC.
798.01 OR SEC. 798.02, EACH OF WHICH IS APPLICABLE TO ALL PERSONS. 
SIMPLE FORNICATION BY THE INTERRACIAL COUPLE IS COVERED ONLY BY THE
GENERAL PROVISION OF SEC.  798.03.  THIS IS NOT, THEREFORE, A CASE
WHERE THE CLASS DEFINED IN THE LAW IS THAT FROM WHICH "THE EVIL MAINLY
IS TO BE FEARED," PATSONE V. PENNSYLVANIA, 232 U.S. 138, 144; OR WHERE
THE "EVILS IN THE SAME FIELD MAY BE OF DIFFERENT DIMENSIONS AND
PROPORTIONS, REQUIRING DIFFERENT REMEDIES," WILLIAMSON V. LEE OPTICAL
CO., 348 U.S. 483, 489; OR EVEN ONE WHERE THE STATE HAS DONE AS MUCH AS
IT CAN AS FAST AS IT CAN, BUCK V. BELL, 274 U.S. 200, 208.  THAT A
GENERAL EVIL WILL BE PARTIALLY CORRECTED MAY AT TIMES, AND WITHOUT
MORE, SERVE TO JUSTIFY THE LIMITED APPLICATION OF A CRIMINAL LAW; BUT
LEGISLATIVE DISCRETION TO EMPLOY THE PIECEMEAL APPROACH STOPS SHORT OF
PERMITTING A STATE TO NARROW STATUTORY COVERAGE TO FOCUS ON A RACIAL
GROUP.  SUCH CLASSIFICATIONS BEAR A FAR HEAVIER BURDEN OF
JUSTIFICATION.  "WHEN THE LAW LAYS AN UNEQUAL HAND ON THOSE WHO HAVE
COMMITTED INTRINSICALLY THE SAME QUALITY OF OFFENSE AND STERILIZES ONE
AND NOT THE OTHER, IT HAS MADE AS INVIDIOUS A DISCRIMINATION AS IF IT
HAD SELECTED A PARTICULAR RACE OR NATIONALITY FOR OPPRESSIVE
TREATMENT.  YICK WO V. HOPKINS (118 U.S. 356); GAINES V. CANADA, 305
U.S. 337."  SKINNER V. OKLAHOMA EX REL.  WILLIAMSON, 316 U.S. 535,
541.  (FN11)                                              II. 

FLORIDA'S REMAINING ARGUMENT IS RELATED TO ITS LAW AGAINST
INTERRACIAL MARRIAGE, FLA.  STAT. ANN. SEC. 741.11, (FN12) WHICH, IN
THE LIGHT OF CERTAIN LEGISLATIVE HISTORY OF THE FOURTEENTH AMENDMENT,
IS SAID TO BE IMMUNE FROM ATTACK UNDER THE EQUAL PROTECTION CLAUSE. 
ITS INTERRACIAL COHABITATION LAW, SEC. 798.05, IS LIKEWISE VALID, IT IS
ARGUED, BECAUSE IT IS ANCILLARY TO AND SERVES THE SAME PURPOSE AS THE
MISCEGENATION LAW ITSELF. 

WE REJECT THIS ARGUMENT, WITHOUT REACHING THE QUESTION OF THE
VALIDITY OF THE STATE'S PROHIBITION AGAINST INTERRACIAL MARRIAGE OR THE
SOUNDNESS OF THE ARGUMENTS ROOTED IN THE HISTORY OF THE AMENDMENT.  FOR
EVEN IF WE POSIT THE CONSTITUTIONALITY OF THE BAN AGAINST THE MARRIAGE
OF A NEGRO AND A WHITE, IT DOES NOT FOLLOW THAT THE COHABITATION LAW IS
NOT TO BE SUBJECTED TO INDEPENDENT EXAMINATION UNDER THE FOURTEENTH
AMENDMENT.  "ASSUMING, FOR PURPOSES OF ARGUMENT ONLY, THAT THE BASIC
PROHIBITION IS CONSTITUTIONAL," IN THIS CASE THE LAW AGAINST
INTERRACIAL MARRIAGE, "IT DOES NOT FOLLOW THAT THERE IS NO
CONSTITUTIONAL LIMIT TO THE MEANS WHICH MAY BE USED TO ENFORCE IT "
OYAMA V. CALIFORNIA, 332 U.S. 633, 646-647.  SEE ALSO BUCHANAN V.
WARLEY, 245 U.S. 60, 81.  SECTION 798.05 MUST THEREFORE ITSELF PASS
MUSTER UNDER THE FOURTEENTH AMENDMENT; AND FOR REASONS QUITE SIMILAR TO
THOSE ALREADY GIVEN, WE THINK IT FAILS THE TEST. 

THERE IS INVOLVED HERE AN EXERCISE OF THE STATE POLICE POWER WHICH
TRENCHES UPON THE CONSTITUTIONALLY PROTECTED FREEDOM FROM INVIDIOUS
OFFICIAL DISCRIMINATION BASED ON RACE.  SUCH A LAW, EVEN THOUGH ENACTED
PURSUANT TO A VALID STATE INTEREST, BEARS A HEAVY BURDEN OF
JUSTIFICATION, AS WE HAVE SAID, AND WILL BE UPHELD ONLY IF IT IS
NECESSARY, AND NOT MERELY RATIONALLY RELATED, TO THE ACCOMPLISHMENT OF
A PERMISSIBLE STATE POLICY.  SEE THE CASES CITED, SUPRA, P. 192.  THOSE
PROVISIONS OF CHAPTER 798 WHICH ARE NEUTRAL AS TO RACE EXPRESS A
GENERAL AND STRONG STATE POLICY AGAINST PROMISCUOUS CONDUCT, WHETHER
ENGAGED IN BY THOSE WHO ARE MARRIED, THOSE WHO MAY MARRY OR THOSE WHO
MAY NOT.  THESE PROVISIONS, IF ENFORCED, WOULD REACH ILLICIT RELATIONS
OF ANY KIND AND IN THIS WAY PROTECT THE INTEGRITY OF THE MARRIAGE LAWS
OF THE STATE, INCLUDING WHAT IS CLAIMED TO BE A VALID BAN ON
INTERRACIAL MARRIAGE.  THESE SAME PROVISIONS, MOREOVER, PUNISH
PREMARITAL SEXUAL RELATIONS AS SEVERELY OR MORE SEVERELY IN SOME
INSTANCES THAN DO THOSE PROVISIONS WHICH FOCUS ON THE INTERRACIAL
COUPLE.  FLORIDA HAS OFFERED NO ARGUMENT THAT THE STATE'S POLICY
AGAINST INTERRACIAL MARRIAGE CANNOT BE AS ADEQUATELY SERVED BY THE
GENERAL, NEUTRAL, AND EXISTING BAN ON ILLICIT BEHAVIOR AS BY A
PROVISION SUCH AS SEC. 798.05 WHICH SINGLES OUT THE PROMISCUOUS
INTERRACIAL COUPLE FOR SPECIAL STATUTORY TREATMENT.  IN SHORT, IT HAS
NOT BEEN SHOWN THAT SEC. 798.05 IS A NECESSARY ADJUNCT TO THE STATE'S
BAN ON INTERRACIAL MARRIAGE.  WE ACCORDINGLY INVALIDATE SEC. 798.05
WITHOUT EXPRESSING ANY VIEWS ABOUT THE STATE'S PROHIBITION OF
INTERRACIAL MARRIAGE, AND REVERSE THESE CONVICTIONS.  REVERSED. 

FN1  FLA. STAT. ANN. SEC. 798.01 - LIVING IN OPEN ADULTERY: 

"WHOEVER LIVES IN AN OPEN STATE OF ADULTERY SHALL BE PUNISHED BY
IMPRISONMENT IN THE STATE PRISON NOT EXCEEDING TWO YEARS, OR IN THE
COUNTY JAIL NOT EXCEEDING ONE YEAR, OR BY FINE NOT EXCEEDING FIVE
HUNDRED DOLLARS.  WHERE EITHER OF THE PARTIES LIVING IN AN OPEN STATE
OF ADULTERY IS MARRIED, BOTH PARTIES SO LIVING SHALL BE DEEMED TO BE
GUILTY OF THE OFFENSE PROVIDED FOR IN THIS SECTION." 

FLA. STAT. ANN. SEC. 798.02 - LEWD AND LASCIVIOUS BEHAVIOR: 

"IF ANY MAN AND WOMAN, NOT BEING MARRIED TO EACH OTHER, LEWDLY AND
LASCIVIOUSLY ASSOCIATE AND COHABIT TOGETHER, OR IF ANY MAN OR WOMAN,
MARRIED OR UNMARRIED, IS GUILTY OF OPEN AND GROSS LEWDNESS AND
LASCIVIOUS BEHAVIOR, THEY SHALL BE PUNISHED BY IMPRISONMENT IN THE
STATE PRISON NOT EXCEEDING TWO YEARS, OR IN THE COUNTY JAIL NOT
EXCEEDING ONE YEAR, OR BY FINE NOT EXCEEDING THREE HUNDRED DOLLARS." 

FLA. STAT. ANN. SEC. 798.03 - FORNICATION: 

"IF ANY MAN COMMITS FORNICATION WITH A WOMAN, EACH OF THEM SHALL BE
PUNISHED BY IMPRISONMENT NOT EXCEEDING THREE MONTHS, OR BY FINE NOT
EXCEEDING THIRTY DOLLARS." 

FLA. STAT. ANN. SEC. 798.04 - WHITE PERSONS AND NEGROES LIVING IN
ADULTERY: 

"IF ANY WHITE PERSON AND NEGRO, OR MULATTO, SHALL LIVE IN ADULTERY OR
FORNICATION WITH EACH OTHER, EACH SHALL BE PUNISHED BY IMPRISONMENT NOT
EXCEEDING TWELVE MONTHS, OR BY FINE NOT EXCEEDING ONE THOUSAND
DOLLARS." 

FLA. STAT. ANN. SEC. 798.05 - NEGRO MAN AND WHITE WOMAN OR WHITE MAN
AND NEGRO WOMAN OCCUPYING SAME ROOM: "ANY NEGRO MAN AND WHITE WOMAN, OR
ANY WHITE MAN AND NEGRO WOMAN, WHO ARE NOT MARRIED TO EACH OTHER, WHO
SHALL HABITUALLY LIVE IN AND OCCUPY IN THE NIGHTTIME THE SAME ROOM
SHALL EACH BE PUNISHED BY IMPRISONMENT NOT EXCEEDING TWELVE MONTHS, OR
BY FINE NOT EXCEEDING FIVE HUNDRED DOLLARS." 

FN2  SECTION 798.02 PROSCRIBES TWO OFFENSES:  (1) OPEN AND GROSS
LEWDNESS AND LASCIVIOUS BEHAVIOR BY EITHER A MAN OR A WOMAN; (2) LEWD
AND LASCIVIOUS ASSOCIATION AND COHABITATION BY A MAN AND WOMAN.   THE
LATTER OFFENSE IS IDENTICAL TO THAT PROSCRIBED BY SEC. 798.01, EXCEPT
THAT SEC. 798.01 CONTAINS THE ADDITIONAL REQUIREMENT THAT ONE OF THE
PARTICIPANTS BE MARRIED TO A THIRD PARTY.  CONVICTION UNDER EITHER
MAINTAINED SEXUAL RELATIONS OVER A PERIOD OF TIME AS IN THE CONJUGAL
RELATION BETWEEN HUSBAND AND WIFE.  BRASWELL V. STATE, 88 FLA. 183, 101
SO. 232 (1924), LOCKHART V. STATE, 79 FLA. 824, 85 SO. 153 (1920)(BOTH
CASES INVOLVING WHAT IS NOW SEC. 798.01); WILDMAN V. STATE, 157 FLA.
334, 25 SO. 2D 808 (1946), PENTON V. STATE, 42 FLA. 560, 28 SO. 774
(1900)(CASES INVOLVING, RESPECTIVELY, SEC. 798.02 AND WHAT IS NOW THAT
STATUTE). 

FN3  UNLIKE ALL THE OTHER SECTIONS OF CHAPTER 798, SEC. 798.03 DOES
NOT RELATE ONLY TO HABITUAL CONDUCT.  IT PROSCRIBES SINGLE AND
OCCASIONAL ACTS OF FORNICATION.  SEE COLLINS V. STATE, 83 FLA. 458, 92
SO. 681 (1922). 

FN4  WE HAVE NOT FOUND ANY DECISIONS CONSTRUING SEC. 798.04.  ITS
OPERATIVE LANGUAGE, "LIVE IN ADULTERY OR FORNICATION," IS SUBSTANTIALLY
IDENTICAL TO THE PHRASE "LIVES IN AN OPEN STATE OF ADULTERY" IN SEC.
798.01, WHICH HAS BEEN CONSTRUED TO MEAN HABITUAL CONDUCT.  THAT
LANGUAGE SHARPLY CONTRASTS WITH THE PHRASE "COMMITS FORNICATION" IN
SEC. 798.03, WHICH PROSCRIBES CASUAL ACTS OF FORNICATION.  TEXTUAL
ANALYSIS THEREFORE LEADS US TO CONCLUDE THAT THE FLORIDA COURTS WOULD
GIVE SEC. 798.04 A SIMILAR CONSTRUCTION TO THAT ACCORDED SECS.  798.01
AND 798.02.  THIS CONCLUSION THAT SEC. 798.04 IS DUPLICATIVE OF OTHER
PROVISIONS IS CONSISTENT WITH THE APPARENT LACK OF PROSECUTIONS UNDER
SEC. 798.04. 

FN5  PARRAMORE V. STATE, 81 FLA. 621, 88 SO. 472 (1921).  COMPARE
NOTE 2, SUPRA. 

FN6  APPELLANTS PRESENT TWO OTHER CONTENTIONS WHICH IT IS UNNECESSARY
FOR US TO CONSIDER IN VIEW OF OUR DISPOSITION OF THEIR PRINCIPAL
CLAIM.  FIRST, THEY CHALLENGE THE CONSTITUTIONALITY OF FLA. STAT. ANN.
SEC. 741.11 - MARRIAGES BETWEEN WHITE AND NEGRO PERSONS PROHIBITED: 

"IT IS UNLAWFUL FOR ANY WHITE MALE PERSON RESIDING OR BEING IN THIS
STATE TO INTERMARRY WITH ANY NEGRO FEMALE PERSON; AND IT IS IN LIKE
MANNER UNLAWFUL FOR ANY WHITE FEMALE PERSON RESIDING OR BEING IN THIS
STATE TO INTERMARRY WITH ANY NEGRO MALE PERSON; AND EVERY MARRIAGE
FORMED OR SOLEMNIZED IN CONTRAVENTION OF THE PROVISIONS OF THIS SECTION
SHALL BE UTTERLY NULL AND VOID  ...  ." 

THE BASIS FOR APPELLANTS' COMPLAINT REGARDING THIS STATUTE IS THAT IN
CHARGING THE JURY WITH RESPECT TO APPELLANTS' DEFENSE OF COMMON-LAW
MARRIAGE THE TRIAL JUDGE STATED, WITHOUT OBJECTION BY APPELLANTS, THAT
BECAUSE OF SEC. 741.11 IT WOULD HAVE BEEN UNLAWFUL FOR APPELLANTS TO
HAVE ENTERED INTO A COMMON-LAW MARRIAGE IN FLORIDA.  APPELLANTS CONTEND
THAT THIS APPLICATION OF THE MARRIAGE STATUTE WAS A DENIAL OF DUE
PROCESS AND EQUAL PROTECTION SECURED BY THE FOURTEENTH AMENDMENT. 

APPELLANTS' FINAL CLAIM IS THAT THEIR CONVICTIONS VIOLATED DUE
PROCESS EITHER BECAUSE THERE WAS NO PROOF OF APPELLANT MCLAUGHLIN'S
RACE OR BECAUSE THE FLORIDA DEFINITION OF "NEGRO" IS UNCONSTITUTIONALLY
VAGUE.  FLA. STAT. ANN. SEC. 1.01(6) PROVIDES:  "THE WORDS 'NEGRO,'
'COLORED,' 'COLORED PERSONS,' 'MULATTO' OR 'PERSONS OF COLOR,' WHEN
APPLIED TO PERSONS, INCLUDE EVERY PERSON HAVING ONE-EIGHTH OR MORE OF
AFRICAN OR NEGRO BLOOD."  AT THE TRIAL ONE OF THE ARRESTING OFFICERS
WAS PERMITTED, OVER OBJECTION, TO STATE HIS CONCLUSION AS TO THE RACE
OF EACH APPELLANT BASED ON HIS OBSERVATION OF THEIR PHYSICAL
APPEARANCE.  APPELLANTS CLAIM THAT THE STATUTORY DEFINITION IS CIRCULAR
IN THAT IT PROVIDES NO INDEPENDENT MEANS OF DETERMINING THE RACE OF A
DEFENDANT'S ANCESTORS AND THAT TESTIMONY BASED ON APPEARANCE IS
IMPERMISSIBLE BECAUSE NOT RELATED TO ANY OBJECTIVE STANDARD.  FLORIDA
ARGUES THAT UNDER FLORIDA APPELLATE PROCEDURE THIS CLAIM WAS ABANDONED
WHEN THE APPELLANTS FAILED TO ARGUE IT IN THE BRIEF THEY PRESENTED TO
THE FLORIDA SUPREME COURT. 

FN7  "THE DEFECT IN THE ARGUMENT OF COUNSEL CONSISTS IN HIS
ASSUMPTION THAT ANY DISCRIMINATION IS MADE BY THE LAWS OF ALABAMA IN
THE PUNISHMENT PROVIDED FOR THE OFFENCE FOR WHICH THE PLAINTIFF IN
ERROR WAS INDICTED WHEN COMMITTED BY A PERSON OF THE AFRICAN RACE AND
WHEN COMMITTED BY A WHITE PERSON.  THE TWO SECTIONS OF THE CODE CITED
ARE ENTIRELY CONSISTENT.  THE ONE PRESCRIBES, GENERALLY, A PUNISHMENT
FOR AN OFFENCE COMMITTED BETWEEN PERSONS OF DIFFERENT SEXES; THE OTHER
PRESCRIBES A PUNISHMENT FOR AN OFFENCE WHICH CAN ONLY BE COMMITTED
WHERE THE TWO SEXES ARE OF DIFFERENT RACES.  THERE IS IN NEITHER
INCLUDES THE OFFENCE WHEN THE PERSONS OF THE TWO SEXES ARE BOTH WHITE
AND WHEN THEY ARE BOTH BLACK.  SECT.  4189 APPLIES THE SAME PUNISHMENT
TO BOTH OFFENDERS, THE WHITE AND THE BLACK.  INDEED, THE OFFENCE
AGAINST WHICH THIS LATTER SECTION IS AIMED CANNOT BE COMMITTED WITHOUT
INVOLVING THE PERSONS OF BOTH RACES IN THE SAME PUNISHMENT.  WHATEVER
DISCRIMINATION IS MADE IN THE PUNISHMENT PRESCRIBED IN THE TWO SECTIONS
IS DIRECTED AGAINST THE OFFENCE DESIGNATED AND NOT AGAINST THE PERSON
OF ANY PARTICULAR COLOR OR RACE.  THE PUNISHMENT OF EACH OFFENDING
PERSON, WHETHER WHITE OR BLACK, IS THE SAME "  106 U.S., AT 585. 

FN8  HAD THE COURT BEEN PRESENTED WITH A STATUTE THAT, FOR EXAMPLE,
PROHIBITED ANY NEGRO MALE FROM HAVING CARNAL KNOWLEDGE OF A WHITE
FEMALE AND PENALIZED ONLY THE NEGRO, SUCH A STATUTE WOULD
UNQUESTIONABLY HAVE BEEN HELD TO DENY EQUAL PROTECTION EVEN THOUGH IT
APPLIED EQUALLY TO ALL TO WHOM IT APPLIED.  SEE STRAUDER V. WEST
VIRGINIA, 100 U.S. 303, 306-308; HO OH KOW V. NUNAN, 12 FED. CAS. 252
(NO. 6546)(C.C.D. CAL. 1879)(FIELD, J.)  ("CHINESE PIGTAIL" CASE). 
BECAUSE OF THE MANIFEST INADEQUACY OF ANY APPROACH REQUIRING ONLY EQUAL
APPLICATION TO THE CLASS DEFINED IN THE STATUTE, ONE MAY CONCLUDE THAT
IN PACE THE COURT ACTUALLY RULED SUB SILENTIO THAT THE DIFFERENT
TREATMENT METED OUT TO INTERRACIAL AND INTRARACIAL COUPLES WAS BASED ON
A REASONABLE LEGISLATIVE PURPOSE.  IF THE COURT DID REACH THAT
CONCLUSION IT FAILED TO ARTICULATE IT OR TO GIVE ITS REASONS, AND FOR
THE REASONS STATED INFRA WE REJECT THE CONTENTION PRESENTED HERE THAT
THE CRIMINAL STATUTE PRESENTLY UNDER REVIEW IS GROUNDED IN A REASONABLE
LEGISLATIVE POLICY. 

FN9  THE PACE HOLDING ITSELF MAY HAVE UNDERGONE SOME MODIFICATION
WHEN THE COURT A FEW YEARS LATER CITED IT FOR THE PROPOSITION "THAT A
DIFFERENT PUNISHMENT FOR THE SAME OFFENCE MAY BE INFLICTED UNDER
PARTICULAR CIRCUMSTANCES, PROVIDED IT IS DEALT OUT TO ALL ALIKE WHO ARE
SIMILARLY SITUATED."  MOORE V. MISSOURI, 159 U.S. 673, 678. 

FN10  "SECTION 798.05, FLORIDA STATUTES, UNDER WHICH THE DEFENDANTS
WERE CHARGED, SIMPLY PROHIBITS HABITUAL COHABITING OF THE SAME ROOM BY
MEMBERS OF OPPOSITE RACES WHO ARE ALSO MEMBERS OF OPPOSITE SEXES.  THE
TERMS OF SECTION 798.05, SUPRA, EXPLICITLY SEEK TO AVOID CIRCUMSTANCES
WHEREIN THERE ARE HIGH POTENTIALS OF SEXUAL ENGAGEMENT  ...  .  SECTION
798.02, FLORIDA STATUTES, WHICH PROHIBITS INTRARACIAL LEWD
COHABITATION, HAS GENERALLY BEEN INTERPRETED AS REQUIRING THE
ADDITIONAL ELEMENT OF SEXUAL OCCURRENCE AS DISTINGUISHED FROM THE
PROVISIONS OF SECTION 798.05, SUPRA, WHICH ONLY REQUIRE A HIGH
POTENTIAL OF SUCH OCCURRENCE.  THE LEGISLATIVE PURPOSE IN ENACTING BOTH
OCCURRENCES  ...  .  THE PURPOSE OF THE LEGISLATURE IN ENACTING BOTH
BREACHES OF BASIC CONCEPTS OF SEXUAL DECENCY WHETHER COMMITTED BY
INTERRACIAL OR INTRARACIAL PARTIES."  BRIEF FOR APPELLEE, 55-56. 

FN11  IN THE SKINNER CASE THE COURT INVALIDATED ON EQUAL-PROTECTION
GROUNDS OKLAHAMA'S LAW PROVIDING FOR THE STERILIZATION OF MULTIPLE
OFFENDERS BUT EXEMPTING OFFENSES ARISING OUT OF THE PROHIBITION LAWS,
THE REVENUE ACTS, EMBEZZLEMENT OR POLITICAL OFFENSES.  THE COURT SAID: 

"OKLAHOMA MAKES NO ATTEMPT TO SAY THAT HE WHO COMMITS LARCENY BY
TRESPASS OR TRICK OR FRAUD HAS BIOLOGICALLY INHERITABLE TRAITS WHICH HE
WHO COMMITS EMBEZZLEMENT LACKS.  OKLAHOMA'S LINE BETWEEN LARCENY BY
FRAUD AND EMBEZZLEMENT IS DETERMINED, AS WE HAVE NOTED, 'WITH REFERENCE
TO THE TIME WHEN THE FRAUDULENT INTENT TO CONVERT THE PROPERTY TO THE
TAKER'S OWN USE' ARISES.  RILEY V. STATE, SUPRA, 64 OKLA. CR. AT P.
189, 78 P.2D P. 715.  WE HAVE NOT THE SLIGHTEST BASIS FOR INFERRING
THAT THAT LINE HAS ANY SIGNIFICANCE IN EUGENICS, NOR THAT THE
INHERITABILITY OF CRIMINAL TRAITS FOLLOWS THE NEAT LEGAL DISTINCTIONS
WHICH THE LAW HAS MARKED BETWEEN THOSE TWO OFFENSES.  IN TERMS OF FINES
AND IMPRISONMENT, THE CRIMES OF LARCENY AND EMBEZZLEMENT RATE THE SAME
UNDER THE OKLAHOMA CODE.  ONLY WHEN IT COMES TO STERILIZATION ARE THE
PAINS AND PENALTIES OF THE LAW DIFFERENT.  THE EQUAL PROTECTION CLAUSE
WOULD INDEED BE A FORMULA OF EMPTY WORDS IF SUCH CONSPICUOUSLY
ARTIFICIAL LINES COULD BE DRAWN."  316 U.S., AT 541-542.    FN12  SEE
NOTE 6, SUPRA.  SEE ALSO FLA. CONST., ART. 16, SEC. 24. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION WITH THE FOLLOWING COMMENTS. 

I AGREE WITH THE COURT THAT THE COHABITATION STATUTE HAS NOT BEEN
SHOWN TO BE NECESSARY TO THE INTEGRITY OF THE ANTIMARRIAGE LAW, ASSUMED
ARGUENDO TO BE VALID, AND THAT NECESSITY, NOT MERE REASONABLE
RELATIONSHIP, IS THE PROPER TEST, SEE ANTE, PP. 195-196.  NAACP V.
ALABAMA, 377 U.S. 288, 307-308; SAIA V. NEW YORK, 334 U.S. 558, 562;
MARTIN V. STRUTHERS, 319 U.S. 141, 147; THORNHILL V. ALABAMA, 310 U.S.
88, 96; SCHNEIDER V. STATE, 308 U.S. 147, 161, 162, 164; SEE MCGOWAN V.
MARYLAND, 366 U.S. 420, 466-467 (FRANKFURTER, J., CONCURRING). 

THE FACT THAT THESE CASES AROSE UNDER THE PRINCIPLES OF THE FIRST
AMENDMENT DOES NOT MAKE THEM INAPPLICABLE HERE.  PRINCIPLES OF FREE
SPEECH ARE CARRIED TO THE STATES ONLY THROUGH THE FOURTEENTH
AMENDMENT.  THE NECESSITY TEST WHICH DEVELOPED TO PROTECT FREE SPEECH
AGAINST STATE INFRINGEMENT SHOULD BE EQUALLY APPLICABLE IN A CASE
INVOLVING STATE RACIAL DISCRIMINATION - PROHIBITION OF WHICH LIES AT
THE VERY HEART OF THE FOURTEENTH AMENDMENT.  NOR DOES THE FACT THAT
THESE CASES ALL INVOLVED WHAT THE COURT DEEMED TO BE A CONSTITUTIONALLY
EXCESSIVE EXERCISE OF LEGISLATIVE POWER RELATING TO A SINGLE STATE
POLICY, WHEREAS THIS CASE INVOLVES TWO LEGISLATIVE POLICIES -
PREVENTION OF EXTRAMARITAL RELATIONS AND PREVENTION OF MISCEGENATION -
EFFECTUATED BY SEPARATE STATUTES, SERVE TO VITIATE THE SOUNDNESS OF THE
COURT'S CONCLUSION THAT THE VALIDITY OF THE STATE'S ANTIMARRIAGE LAW
NEED NOT BE DECIDED IN THIS CASE.  IF THE LEGITIMACY OF THE
COHABITATION STATUTE IS CONSIDERED TO DEPEND UPON ITS BEING ANCILLARY
TO THE ANTIMARRIAGE STATUTE, THE FORMER MUST BE DEEMED "UNNECESSARY"
UNDER THE PRINCIPLE ESTABLISHED BY THE CITED CASES IN LIGHT OF THE
NONDISCRIMINATORY EXTRAMARITAL RELATIONS STATUTES.  IF, HOWEVER, THE
INTERRACIAL COHABITATION STATUTE IS CONSIDERED TO REST UPON A DISCRETE
STATE INTEREST, EXISTING INDEPENDENTLY OF THE ANTIMARRIAGE LAW, IT
FALLS OF ITS OWN WEIGHT. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
CONCURRING. 

I CONCUR IN THE JUDGMENT AND AGREE WITH MOST OF WHAT IS SAID IN THE
COURT'S OPINION.  BUT THE COURT IMPLIES THAT A CRIMINAL LAW OF THE KIND
HERE INVOLVED MIGHT BE CONSTITUTIONALLY VALID IF A STATE COULD SHOW
"SOME OVERRIDING STATUTORY PURPOSE."  THIS IS AN IMPLICATION IN WHICH I
CANNOT JOIN, BECAUSE I CANNOT CONCEIVE OF A VALID LEGISLATIVE PURPOSE
UNDER OUR CONSTITUTION FOR A STATE LAW WHICH MAKES THE COLOR OF A
PERSON'S SKIN THE TEST OF WHETHER HIS CONDUCT IS A CRIMINAL OFFENSE. 
THESE APPELLANTS WERE CONVICTED, FINED, AND IMPRISONED UNDER A STATUTE
WHICH MADE THEIR CONDUCT CRIMINAL ONLY BECAUSE THEY WERE OF DIFFERENT
RACES.  SO FAR AS THIS STATUTE GOES, THEIR CONDUCT WOULD NOT HAVE BEEN
ILLEGAL HAD THEY BOTH BEEN WHITE, OR BOTH NEGROES.  THERE MIGHT BE
LIMITED ROOM UNDER THE EQUAL PROTECTION CLAUSE FOR A CIVIL LAW
REQUIRING THE KEEPING OF RACIALLY SEGREGATED PUBLIC RECORDS FOR
STATISTICAL OR OTHER VALID PUBLIC PURPOSES.  CF. TANCIL V. WOOLLS,
ANTE, AT 19.  BUT WE DEAL HERE WITH A CRIMINAL LAW WHICH IMPOSES
CRIMINAL PUNISHMENT.  AND I THINK IT IS SIMPLY NOT POSSIBLE FOR A STATE
LAW TO BE VALID UNDER OUR CONSTITUTION WHICH MAKES THE CRIMINALITY OF
AN ACT DEPEND UPON THE RACE OF THE ACTOR.  DISCRIMINATION OF THAT KIND
IS INVIDIOUS PER SE.* 

*SINCE I THINK THIS CRIMINAL LAW IS CLEARLY INVALID UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, I DO NOT CONSIDER THE
IMPACT OF THE DUE PROCESS CLAUSE OF THAT AMENDMENT, NOR OF THE
THIRTEENTH AND FIFTEENTH AMENDMENTS. 
..END :



RAILWAY LABOR EXECUTIVES' ASSOCIATION V. UNITED STATES 379 U.S. 199 


NO. 130.  DECIDED DECEMBER 7, 1964.  - 226 F. SUPP. 521, VACATED AND
REMANDED. 


DISTRICT COURT'S JUDGMENT DISMISSING APPELLANT RAILWAY EMPLOYEES'
COMPLAINT TO SET ASIDE IN PART INTERSTATE COMMERCE COMMISSION RAILROAD
MERGER ORDERS FOR FAILURE TO PROTECT EMPLOYEES' INTERESTS UNDER CERTAIN
PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT VACATED INSOFAR AS THE
JUDGMENT RELATES TO THOSE PROVISIONS, WITH INSTRUCTIONS TO REMAND CASE
TO ICC FOR CLARIFICATION OF ORDERS. 

RAILWAY LABOR EXECUTIVES' ASSOCIATION ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THIS APPEAL IS FROM A JUDGMENT OF A THREE-JUDGE DISTRICT COURT, 226
F. SUPP. 521, DISMISSING APPELLANTS' COMPLAINT TO SET ASIDE ORDERS OF
THE INTERSTATE COMMERCE COMMISSION, 317 I.C.C. 557, 729, RELATING TO
THE SOUTHERN RAILWAY COMPANY'S ACQUISITION OF CONTROL THROUGH STOCK
OWNERSHIP OF THE CENTRAL OF GEORGIA RAILWAY COMPANY.  APPELLANTS,
REPRESENTING RAILWAY EMPLOYEES, OBJECT THAT UNDER THE COMMISSION'S
ORDERS, THE EMPLOYEES ARE NOT PROTECTED AS PROVIDED BY SECS. 4, 5, AND
9 OF THE WASHINGTON JOB PROTECTION AGREEMENT.  WE AGREE WITH THE
SUGGESTION OF THE SOLICITOR GENERAL THAT THIS CASE SHOULD BE REMANDED
TO THE INTERSTATE COMMERCE COMMISSION FOR CLARIFICATION OF ITS ORDERS
INSOFAR AS THEY RELATE TO THE AGREEMENT.  FOR THIS REASON, THE MOTION
OF THE INTERSTATE COMMERCE COMMISSION TO AFFIRM THE JUDGMENT OF THE
DISTRICT COURT IS DENIED.  THE MOTION OF INTERVENOR-APPELLEES SOUTHERN
RAILWAY COMPANY AND CENTRAL OF GEORGIA RAILWAY COMPANY TO DEFER
CONSIDERATION OF THE JURISDICTIONAL STATEMENT IS DENIED.  APPELLANTS'
MOTION TO LIMIT THE APPEAL TO QUESTIONS RELATED TO SECS. 4, 5, AND 9 OF
THE WASHINGTON JOB PROTECTION AGREEMENT IS GRANTED.  THE JUDGMENT OF
THE DISTRICT COURT IS VACATED INSOFAR AS IT RELATES TO SECS. 4, 5, AND
9 OF THE WASHINGTON AGREEMENT, AND THIS CASE IS REMANDED TO THAT COURT
WITH INSTRUCTIONS TO REMAND IT TO THE INTERSTATE COMMERCE COMMISSION
WITH INSTRUCTIONS TO AMEND ITS REPORTS AND ORDERS AS NECESSARY TO DEAL
WITH APPELLANTS' REQUEST THAT SECS. 4, 5, AND 9 BE INCLUDED AS
PROTECTIVE CONDITIONS, SPECIFICALLY INDICATING WHY EACH OF THESE
PROVISIONS IS EITHER OMITTED OR INCLUDED.  SEE UNITED STATES V.
CHICAGO, M., ST. P. & PAC. R. CO., 294 U.S. 499, 511.  VACATED AND
REMANDED. 
..END :






MOITY V. LOUISIANA 379 U.S. 201 


NO. 337.  DECIDED DECEMBER 7, 1964.  - 245 LA. 546, 159 SO. 2D 149,
REVERSED. 


MOITY V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  GARRISON V. LOUISIANA, ANTE, P. 64. 
..END :


















MUTTER V. WISCONSIN 379 U.S. 201 


NO. 495.  DECIDED DECEMBER 7, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  23 WIS. 2D 407, 127
N.W.2D 15. 


MUTTER V. WISCONSIN. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CROSS V. BRUNING 379 U.S. 202 


NO. 436, MISC.  DECIDED DECEMBER 7, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


CROSS ET AL. V. BRUNING ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













UNITED STATES V. POWELL 379 U.S. 48 


NO. 54.  ARGUED OCTOBER 14-15, 1964.  - DECIDED NOVEMBER 23, 1964.  -
325 F.2D 914, REVERSED AND REMANDED. 


ON THE GROUND THAT THE RESPONDENT CORPORATE TAXPAYER'S RETURNS HAD
BEEN EXAMINED FOR CERTAIN YEARS AND THAT, ABSENT FRAUD, THE STATUTE OF
LIMITATIONS BARRED ASSESSMENT OF ADDITIONAL DEFICIENCIES, RESPONDENT
THE TAXPAYER'S PRESIDENT REFUSED TO PRODUCE RECORDS SUMMONED BY THE
INTERNAL REVENUE SERVICE (IRS) UNLESS IT DISCLOSED ITS BASIS FOR
BELIEVING THAT FRAUD HAD BEEN COMMITTED.  THE GOVERNMENT BROUGHT AN
ENFORCEMENT PROCEEDING UNDER SEC. 7604(B) OF THE INTERNAL REVENUE CODE
IN THE DISTRICT COURT, WHICH HELD THAT THE AGENT BE ALLOWED TO RE
EXAMINE THE RECORDS.  THE COURT OF APPEALS REVERSED, HOLDING THAT SEC.
7605(B) BARRED "UNNECESSARY EXAMINATION" UNLESS THE IRS COULD SHOW
REASONABLE GROUNDS OR PROBABLE CAUSE TO SUSPECT FRAUD, A CONDITION NOT
SATISFIED BY THE AGENT'S AFFIDAVIT FILED WITH THE ENFORCEMENT PETITION
THAT HE SUSPECTED THAT THE TAXPAYER HAD FRAUDULENTLY OVERSTATED
EXPENSES.  HELD: 

1.  SECTION 7604(B) DOES NOT APPLY TO A NON-CONTUMACIOUS REFUSAL LIKE
THE INDIVIDUAL RESPONDENT'S TO COMPLY WITH A SUMMONS; BUT
RECOMMENCEMENT OF THE PROCEEDING WILL NOT BE REQUIRED, SINCE THE
GOVERNMENT SOUGHT NO PREHEARING SANCTIONS OF ARREST AND ATTACHMENT
UNDER THAT STATUTE, WHICH IS OTHERWISE SIMILAR TO SECS. 7402(B) AND
7604(A).  THE PROCEEDING IS THEREFORE CONSIDERED UNDER THOSE ALMOST
IDENTICAL SECTIONS, WHICH GIVE GENERAL POWER TO ENFORCE SUMMONSES "BY
APPROPRIATE PROCESS."  PP. 51-52. 

2.  IN ORDER TO ENFORCE A SUMMONS FOR RECORDS THE COMMISSIONER,
EITHER BEFORE OR AFTER THE LIMITATIONS PERIOD HAS EXPIRED, NEED NOT
SHOW PROBABLE CAUSE TO SUSPECT FRAUD.  UNLESS THE TAXPAYER RAISES A
SUBSTANTIAL QUESTION THAT JUDICIAL ENFORCEMENT OF THE SUMMONS WOULD
ABUSE THE COURT'S PROCESS, THE COMMISSIONER MUST ONLY SHOW THAT THE
INVESTIGATION IS PURSUANT AND RELEVANT TO A LEGITIMATE PURPOSE; THAT
THE INFORMATION IS NOT ALREADY IN THE COMMISSIONER'S POSSESSION; THAT
THE SECRETARY OR HIS DELEGATE HAS DETERMINED THAT THE FURTHER
EXAMINATION IS NECESSARY, AND THAT THE OTHER ADMINISTRATIVE STEPS
REQUIRED BY THE CODE HAVE BEEN FOLLOWED.  PP. 52-58. 

UNITED STATES ET AL. V. POWELL ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN MARCH 1963, THE INTERNAL REVENUE SERVICE, PURSUANT TO POWERS
AFFORDED THE COMMISSIONER BY SEC. 7602(2) OF THE INTERNAL REVENUE CODE
OF 1954, SUMMONED RESPONDENT POWELL TO APPEAR BEFORE SPECIAL AGENT
TIBERINO TO GIVE TESTIMONY AND PRODUCE RECORDS RELATING TO THE 1958 AND
1959 RETURNS OF THE WILLIAM PENN LAUNDRY (THE TAXPAYER), OF WHICH
POWELL WAS PRESIDENT.  POWELL APPEARED BEFORE THE AGENT BUT REFUSED TO
PRODUCE THE RECORDS.  BECAUSE THE TAXPAYER'S RETURNS HAD BEEN ONCE
PREVIOUSLY EXAMINED, AND BECAUSE THE THREE-YEAR STATUTE OF LIMITATIONS
BARRED ASSESSMENT OF ADDITIONAL DEFICIENCIES FOR THOSE YEARS (FN1)
EXCEPT IN CASES OF FRAUD (THE ASSERTED BASIS FOR THIS SUMMONS), (FN2)
POWELL CONTENDED THAT BEFORE HE COULD BE FORCED TO PRODUCE THE RECORDS
THE SERVICE HAD TO INDICATE SOME GROUNDS FOR ITS BELIEF THAT A FRAUD
HAD BEEN COMMITTED.  THE AGENT DECLINED TO GIVE ANY SUCH INDICATION AND
THE MEETING TERMINATED. 

THEREAFTER THE SERVICE PETITIONED THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA FOR ENFORCEMENT OF THE ADMINISTRATIVE
SUMMONS.  WITH THIS PETITION THE AGENT FILED AN AFFIDAVIT STATING THAT
HE HAD BEEN INVESTIGATING THE TAXPAYER'S RETURNS FOR 1958 AND 1959;
THAT BASED ON THIS INVESTIGATION THE REGIONAL COMMISSIONER OF THE
SERVICE HAD DETERMINED AN ADDITIONAL EXAMINATION OF THE TAXPAYER'S
RECORDS FOR THOSE YEARS TO BE NECESSARY AND HAD SENT POWELL A LATTER TO
THAT EFFECT; AND THAT THE AGENT HAD REASON TO SUSPECT THAT THE TAXPAYER
HAD FRAUDULENTLY FALSIFIED ITS 1958 AND 1959 RETURNS BY OVERSTATING
EXPENSES.  AT THE COURT HEARING POWELL AGAIN STATED HIS OBJECTIONS TO
PRODUCING THE RECORDS AND ASKED THE SERVICE TO SHOW SOME BASIS FOR ITS
SUSPICION OF FRAUD.  THE SERVICE CHOSE TO STAND ON THE PETITION AND THE
AGENT'S AFFIDAVIT, AND, AFTER ARGUMENT, THE DISTRICT COURT RULED THAT
THE AGENT BE GIVEN ONE HOUR IN WHICH TO RE-EXAMINE THE RECORDS.  (FN3) 

THE COURT OF APPEALS REVERSED, 325 F.2D 914.  IT REASONED THAT SINCE
THE RETURNS IN QUESTION COULD ONLY BE REOPENED FOR FRAUD, RE
EXAMINATION OF THE TAXPAYER'S RECORDS MUST BE BARRED BY THE PROHIBITION
OF SEC. 7605(B) OF THE CODE (FN4) AGAINST "UNNECESSARY EXAMINATION"
UNLESS THE SERVICE POSSESSED INFORMATION "WHICH MIGHT CAUSE A
REASONABLE MAN TO SUSPECT THAT THERE HAS BEEN FRAUD IN THE RETURN FOR
THE OTHERWISE CLOSED YEAR"; (FN5) AND WHETHER THIS STANDARD HAS BEEN
MET IS TO BE DECIDED "ON THE BASIS OF THE SHOWING MADE IN THE NORMAL
COURSE OF AN ADVERSARY PROCEEDING  ...  ."  (FN6)  THE COURT CONCLUDED
THAT THE AFFIDAVIT IN ITSELF WAS NOT SUFFICIENT TO SATISFY ITS TEST OF
PROBABLE CAUSE.  (FN7)  CONSEQUENTLY, ENFORCEMENT OF THE SUMMONS WAS
WITHHELD. 

BECAUSE OF THE DIFFERING VIEWS IN THE CIRCUITS ON THE STANDARDS THE
INTERNAL REVENUE SERVICE MUST MEET TO OBTAIN JUDICIAL ENFORCEMENT OF
ITS ORDERS, (FN8) WE GRANTED CERTIORARI, 377 U.S. 929. 

WE REVERSE, AND HOLD THAT THE GOVERNMENT NEED MAKE NO SHOWING OF
PROBABLE CAUSE TO SUSPECT FRAUD UNLESS THE TAXPAYER RAISES A
SUBSTANTIAL QUESTION THAT JUDICIAL ENFORCEMENT OF THE ADMINISTRATIVE
SUMMONS WOULD BE AN ABUSIVE USE OF THE COURT'S PROCESS, PREDICATED ON
MORE THAN THE FACT OF RE-EXAMINATION AND THE RUNNING OF THE STATUTE OF
LIMITATIONS ON ORDINARY TAX LIABILITY. 

                                        I. 

THIS ENFORCEMENT PROCEEDING WAS BROUGHT BY THE GOVERNMENT PURSUANT TO
SEC. 7604(B) OF THE CODE.  (FN9)  IN REISMAN V. CAPLIN, 375 U.S. 440,
DECIDED LAST TERM SUBSEQUENT TO THE RENDERING OF THE DECISION BELOW,
THIS COURT STATED THAT SEC. 7604(B) "WAS INTENDED ONLY TO COVER PERSONS
WHO WERE SUMMONED AND WHOLLY MADE DEFAULT OR CONTUMACIOUSLY REFUSED TO
COMPLY."  375 U.S., AT 448.  THERE WAS NO CONTUMACIOUS REFUSAL IN THIS
CASE.  THUS THE GOVERNMENT'S CONCEDED ERROR IN BRINGING ITS ENFORCEMENT
PROCEEDING UNDER SEC. 7604(B) INSTEAD OF SEC. 7402(B) OR SEC. 7604(A),
(FN10) EACH OF WHICH GRANTS COURTS THE GENERAL POWER TO ENFORCE THE
COMMISSIONER'S SUMMONSES "BY APPROPRIATE PROCESS," RAISES A THRESHOLD
QUESTION WHETHER WE MUST DISMISS THIS CASE AND FORCE THE GOVERNMENT TO
RECOMMENCE ENFORCEMENT PROCEEDINGS UNDER THE APPROPRIATE SECTIONS. 
SINCE THE GOVERNMENT DID NOT APPLY FOR THE PREHEARING SANCTIONS OF
ATTACHMENT AND ARREST PECULIAR TO SEC. 7604(B), AND SINCE THESE
CONSTITUTE THE MAJOR SUBSTANTIVE DIFFERENCES BETWEEN THE SECTIONS, WE
THINK IT WOULD BE HOLDING TOO STRICTLY TO THE FORMS OF PLEADING TO
REQUIRE THE SUIT TO BE RECOMMENCED, AND THEREFORE TREAT THE ENFORCEMENT
PROCEEDING AS HAVING BEEN BROUGHT UNDER SECS. 7402(B) AND 7604(A). 

                                 II. 

RESPONDENT PRIMARILY RELIES ON SEC. 7605(B) TO SHOW THAT THE
GOVERNMENT MUST ESTABLISH PROBABLE CAUSE FOR SUSPECTING FRAUD, AND THAT
THE EXISTENCE OF PROBABLE CAUSE IS SUBJECT TO CHALLENGE BY THE TAXPAYER
AT THE HEARING.  (FN11)  THAT SECTION PROVIDES: 

"NO TAXPAYER SHALL BE SUBJECTED TO UNNECESSARY EXAMINATION OR
INVESTIGATIONS, AND ONLY ONE INSPECTION OF A TAXPAYER'S BOOKS OF
ACCOUNT SHALL BE MADE FOR EACH TAXABLE YEAR UNLESS THE TAXPAYER
REQUESTS OTHERWISE OR UNLESS THE SECRETARY OR HIS DELEGATE, AFTER
INVESTIGATION, NOTIFIES THE TAXPAYER IN WRITING THAT AN ADDITIONAL
INSPECTION IS NECESSARY." 

WE DO NOT EQUATE NECESSITY AS CONTEMPLATED BY THIS PROVISION WITH
PROBABLE CAUSE OR ANY LIKE NOTION.  IF A TAXPAYER HAS FILED FRAUDULENT
RETURNS, A TAX LIABILITY EXISTS WITHOUT REGARD TO ANY PERIOD OF
LIMITATIONS.  SECTION 7602 AUTHORIZES THE COMMISSIONER TO INVESTIGATE
ANY SUCH LIABILITY.  (FN12)  IF, IN ORDER TO DETERMINE THE EXISTENCE OR
NONEXISTENCE OF FRAUD IN THE TAXPAYER'S RETURNS, INFORMATION IN THE
TAXPAYER'S RECORDS IS NEEDED WHICH IS NOT ALREADY IN THE COMMISSIONER'S
POSSESSION, WE THINK THE EXAMINATION IS NOT "UNNECESSARY" WITHIN THE
MEANING OF SEC. 7605(B).  ALTHOUGH A MORE STRINGENT INTERPRETATION IS
POSSIBLE, ONE WHICH WOULD REQUIRE SOME SHOWING OF CAUSE FOR SUSPECTING
FRAUD, WE REJECT SUCH AN INTERPRETATION BECAUSE IT MIGHT SERIOUSLY
HAMPER THE COMMISSIONER IN CARRYING OUT INVESTIGATIONS HE THINKS
WARRANTED, FORCING HIM TO LITIGATE AND PROSECUTE APPEALS ON THE VERY
SUBJECT WHICH HE DESIRES TO INVESTIGATE, AND BECAUSE THE LEGISLATIVE
HISTORY OF SEC. 7605(B) INDICATES THAT NO SEVERE RESTRICTION WAS
INTENDED. 

1921, 42 STAT. 310.  ITS PURPOSE AND OPERATION WERE EXPLAINED BY THE
MANAGER OF THE BILL, SENATOR PENROSE, ON THE SENATE FLOOR: 

"MR. PENROSE.  MR. PRESIDENT, THE PROVISION IS ENTIRELY IN THE
INTEREST OF THE TAXPAYER AND FOR HIS RELIEF FROM UNNECESSARY
ANNOYANCE.  SINCE THESE INCOME TAXES AND DIRECT TAXES HAVE BEEN IN
FORCE VERY GENERAL COMPLAINT HAS BEEN MADE, ESPECIALLY IN THE LARGE
CENTERS OF WEALTH AND ACCUMULATION OF MONEY, AT THE REPEATED VISITS OF
TAX EXAMINERS, WHO PERHAPS ARE OVERZEALOUS OR DO NOT USE THE BEST OF
JUDGMENT IN THE EXERCISE OF THEIR FUNCTIONS.  I KNOW THAT FROM MANY OF
THE CITIES OF THE COUNTRY VERY BITTER COMPLAINTS HAVE REACHED ME AND
HAVE REACHED THE DEPARTMENT OF UNNECESSARY VISITS AND INQUISITIONS
AFTER A THOROUGH EXAMINATION IS SUPPOSED TO HAVE BEEN HAD.  THIS
THE INTEREST OF THE PEACE OF MIND OF THE HONEST TAXPAYER. 

"MR. WALSH.  ...  SO THAT UP TO THE PRESENT TIME AN INSPECTOR COULD
VISIT THE OFFICE OF AN INDIVIDUAL OR CORPORATION AND INSPECT THE BOOKS
AS MANY TIMES AS HE CHOSE? 

"MR. PENROSE.  AND HE OFTEN DID SO. 

"MR. WALSH.  ...  AND THIS PROVISION OF THE SENATE COMMITTEE SEEKS TO
LIMIT THE INSPECTION TO ONE VISIT UNLESS THE COMMISSIONER INDICATES
THAT THERE IS NECESSITY FOR FURTHER EXAMINATION? 

"MR. PENROSE.  THAT IS THE PURPOSE OF THE AMENDMENT. 

"MR. WALSH.  ...  I HEARTILY AGREE WITH THE BENEFICIAL RESULTS THAT
THE AMENDMENT WILL PRODUCE TO THE TAXPAYER. 

"MR. PENROSE.  I KNEW THE SENATOR WOULD AGREE TO THE AMENDMENT, AND
IT WILL GO A LONG WAY TOWARD RELIEVING PETTY ANNOYANCES ON THE PART OF
HONEST TAXPAYERS."  61 CONG. REC.  5855 (SEPT. 28, 1921).  (FN13) 

CONGRESS RECOGNIZED A NEED FOR A CURB ON THE INVESTIGATING POWERS OF
LOW-ECHELON REVENUE AGENTS, AND CONSIDERED THAT IT MET THIS NEED SIMPLY
AND FULLY BY REQUIRING SUCH AGENTS TO CLEAR ANY REPETITIVE EXAMINATION
WITH A SUPERIOR.  FOR US TO IMPORT A PROBABLE CAUSE STANDARD TO BE
ENFORCED BY THE COURTS WOULD SUBSTANTIALLY OVERSHOOT THE GOAL WHICH THE
LEGISLATORS SOUGHT TO ATTAIN.  THERE IS NO INTIMATION IN THE
LEGISLATIVE HISTORY THAT CONGRESS INTENDED THE COURTS TO OVERSEE THE
COMMISSIONER'S DETERMINATIONS TO INVESTIGATE.  NO MENTION WAS MADE OF
THE STATUTE OF LIMITATIONS (FN14) AND THE EXCEPTION FOR FRAUD. 

WE ARE ASKED TO READ SEC. 7605(B) TOGETHER WITH THE LIMITATIONS
COMMISSIONER FROM THE EXPIRATION DATE OF THE ORDINARY LIMITATIONS
PERIOD FORWARD.  WITHOUT SOME SOLID INDICATION IN THE LEGISLATIVE
HISTORY THAT SUCH A GLOSS WAS INTENDED, WE FIND IT UNACCEPTABLE. 
(FN15)  OUR READING OF THE STATUTE IS SAID TO RENDER THE FIRST CLAUSE
OF SEC. 7605(B) SURPLUSAGE TO A LARGE EXTENT, FOR, AS INTERPRETED, THE
CLAUSE ADDS LITTLE BEYOND THE RELEVANCE AND MATERIALITY REQUIREMENTS OF
SEC. 7602.  THAT CLAUSE DOES APPEAR TO REQUIRE THAT THE INFORMATION
SOUGHT IS NOT ALREADY WITHIN THE COMMISSIONER'S POSSESSION, BUT WE
THINK ITS PRIMARY PURPOSE WAS NO MORE THAN TO EMPHASIZE THE
RESPONSIBILITY OF AGENTS TO EXERCISE PRUDENT JUDGMENT IN WIELDING THE
EXTENSIVE POWERS GRANTED TO THEM BY THE INTERNAL REVENUE CODE.  (FN16) 

THIS VIEW OF THE STATUTE IS REINFORCED BY THE GENERAL REJECTION OF
PROBABLE CAUSE REQUIREMENTS IN LIKE CIRCUMSTANCES INVOLVING OTHER
AGENCIES.  IN OKLAHOMA PRESS PUB. CO. V. WALLING, 327 U.S. 186, 216, IN
REFERENCE TO THE ADMINISTRATOR'S SUBPOENA POWER UNDER THE FAIR LABOR
STANDARDS ACT, THE COURT SAID "HIS INVESTIGATIVE FUNCTION, IN SEARCHING
OUT VIOLATIONS WITH A VIEW TO SECURING ENFORCEMENT OF THE ACT, IS
ESSENTIALLY THE SAME AS THE GRAND JURY'S, OR THE COURT'S IN ISSUING
OTHER PRETRIAL ORDERS FOR THE DISCOVERY OF EVIDENCE, AND IS GOVERNED BY
THE SAME LIMITATIONS," AND ACCORDINGLY APPLIED THE VIEW THAT INQUIRY
MUST NOT BE "'LIMITED  ...  BY FORECASTS OF THE PROBABLE RESULT OF THE
INVESTIGATION.'"  IN UNITED STATES V. MORTON SALT CO., 338 U.S. 632,
642-643, THE COURT SAID OF THE FEDERAL TRADE COMMISSION, "IT HAS A
POWER OF INQUISITION, IF ONE CHOOSES TO CALL IT THAT, WHICH IS NOT
DERIVED FROM THE JUDICIAL FUNCTION.  IT IS MORE ANALOGOUS TO THE GRAND
JURY, WHICH DOES NOT DEPEND ON A CASE OR CONTROVERSY FOR POWER TO GET
EVIDENCE BUT CAN INVESTIGATE MERELY ON SUSPICION THAT THE LAW IS BEING
VIOLATED, OR EVEN JUST BECAUSE IT WANTS ASSURANCE THAT IT IS NOT." 
WHILE THE POWER OF THE COMMISSIONER OF INTERNAL REVENUE DERIVES FROM A
DIFFERENT BODY OF STATUTES, WE DO NOT THINK THE ANALOGIES TO OTHER
AGENCY SITUATIONS ARE WITHOUT FORCE WHEN THE SCOPE OF THE
COMMISSIONER'S POWER IS CALLED IN QUESTION.  (FN17)

                       III. 

READING THE STATUTES AS WE DO, THE COMMISSIONER NEED NOT MEET ANY
STANDARD OF PROBABLE CAUSE TO OBTAIN ENFORCEMENT OF HIS SUMMONS, EITHER
BEFORE OR AFTER THE THREE-YEAR STATUTE OF LIMITATIONS ON ORDINARY TAX
LIABILITIES HAS EXPIRED.  HE MUST SHOW THAT THE INVESTIGATION WILL BE
CONDUCTED PURSUANT TO A LEGITIMATE PURPOSE, THAT THE INQUIRY MAY BE
RELEVANT TO THE PURPOSE, THAT THE INFORMATION SOUGHT IS NOT ALREADY
WITHIN THE COMMISSIONER'S POSSESSION, AND THAT THE ADMINISTRATIVE STEPS
REQUIRED BY THE CODE HAVE BEEN FOLLOWED - IN PARTICULAR, THAT THE
"SECRETARY OR HIS DELEGATE," AFTER INVESTIGATION, HAS DETERMINED THE
FURTHER EXAMINATION TO BE NECESSARY AND HAS NOTIFIED THE TAXPAYER IN
WRITING TO THAT EFFECT.  THIS DOES NOT MAKE MEANINGLESS THE ADVERSARY
HEARING TO WHICH THE TAXPAYER IS ENTITLED BEFORE ENFORCEMENT IS
ORDERED.  (FN18)  AT THE HEARING HE "MAY CHALLENGE THE SUMMONS ON ANY
APPROPRIATE GROUND," REISMAN V. CAPLIN, 375 U.S. 440, AT 449.  (FN19)
NOR DOES OUR READING OF THE STATUTES MEAN THAT UNDER NO CIRCUMSTANCES
MAY THE COURT INQUIRE INTO THE UNDERLYING REASONS FOR THE EXAMINATION. 
IT IS THE COURT'S PROCESS WHICH IS INVOKED TO ENFORCE THE
ADMINISTRATIVE SUMMONS AND A COURT MAY NOT PERMIT ITS PROCESS TO BE
ABUSED.  (FN20)  SUCH AN ABUSE WOULD TAKE PLACE IF THE SUMMONS HAD BEEN
ISSUED FOR AN IMPROPER PURPOSE, SUCH AS TO HARASS THE TAXPAYER OR TO
PUT PRESSURE ON HIM TO SETTLE A COLLATERAL DISPUTE, OR FOR ANY OTHER
PURPOSE REFLECTING ON THE GOOD FAITH OF THE PARTICULAR INVESTIGATION. 
THE BURDEN OF SHOWING AN ABUSE OF THE COURT'S PROCESS IS ON THE
TAXPAYER, AND IT IS NOT MET BY A MERE SHOWING, AS WAS MADE IN THIS
CASE, THAT THE STATUTE OF LIMITATIONS FOR ORDINARY DEFICIENCIES HAS RUN
OR THAT THE RECORDS IN QUESTION HAVE ALREADY BEEN ONCE EXAMINED. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED.    FN1  I.R.C., SEC. 6501(A). 

FN2  I.R.C., SEC. 6501(C)(1), WHICH IN RELEVANT PART PROVIDES:  "IN
THE CASE OF A FALSE OR FRAUDULENT RETURN WITH THE INTENT TO EVADE TAX,
THE TAX MAY BE ASSESSED, OR A PROCEEDING IN COURT FOR COLLECTION OF
SUCH TAX MAY BE BEGUN WITHOUT ASSESSMENT, AT ANY TIME." 

FN3  THE PARTIES SUBSEQUENTLY AGREED THAT IF THE GOVERNMENT WAS
UPHELD IN ITS CLAIM OF RIGHT TO EXAMINE WITHOUT SHOWING PROBABLE CAUSE,
THE ONE-HOUR TIME LIMITATION WOULD BE REMOVED. 

FN4  SEE PAGE 52, INFRA. 

FN5  325 F.2D 914, 915-916.    FN6  ID., AT 916. 

FN7  "PROBABLE CAUSE" AS USED IN THIS OPINION IS MEANT TO INCLUDE THE
FULL RANGE OF FORMULATIONS OFFERED BY LOWER COURTS. 

FN8  COMPARE FOSTER V. UNITED STATES, 265 F.2D 183 (C.A.2D CIR.
1959); UNITED STATES V. RYAN, 320 F.2D 500 (C.A. 6TH CIR. 1963),
AFFIRMED TODAY, POST, P. 61, WITH O'CONNOR V. O'CONNELL, 253 F.2D 365
(C.A. 1ST CIR. 1958), FOLLOWED IN LASH V. NIGHOSIAN, 273 F.2D 185 (C.A.
1ST CIR. 1959); GLOBE CONSTRUCTION CO. V. HUMPHREY, 229 F.2D 148 (C.A.
5TH CIR. 1956); DE MASTERS V. AREND, 313 F.2D 79 (C.A. 9TH CIR. 1963). 

FN9  SECTION 7604(B) PROVIDES: 

"WHENEVER ANY PERSON SUMMONED UNDER SECTION 6420(E)(2), 6421(F)(2),
OR 7602 NEGLECTS OR REFUSES TO OBEY SUCH SUMMONS, OR TO PRODUCE BOOKS,
PAPERS, RECORDS, OR OTHER DATA, OR TO GIVE TESTIMONY, AS REQUIRED, THE
SECRETARY OR HIS DELEGATE MAY APPLY TO THE JUDGE OF THE DISTRICT COURT
OR TO A UNITED STATES COMMISSIONER FOR THE DISTRICT WITHIN WHICH THE
PERSON SO SUMMONED RESIDES OR IS FOUND FOR AN ATTACHMENT AGAINST HIM AS
FOR A CONTEMPT.  IT SHALL BE THE DUTY OF THE JUDGE OR COMMISSIONER TO
HEAR THE APPLICATION, AND, IF SATISFACTORY PROOF IS MADE, TO ISSUE AN
ATTACHMENT, DIRECTED TO SOME PROPER OFFICER, FOR THE ARREST OF SUCH
PERSON, AND UPON HIS BEING BROUGHT BEFORE HIM TO PROCEED TO A HEARING
OF THE CASE; AND UPON SUCH HEARING THE JUDGE OR THE UNITED STATES
COMMISSIONER SHALL HAVE POWER TO MAKE SUCH ORDER AS HE SHALL DEEM
PROPER, NOT INCONSISTENT WITH THE LAW FOR THE PUNISHMENT OF CONTEMPTS,
TO ENFORCE OBEDIENCE TO THE REQUIREMENTS OF THE SUMMONS AND TO PUNISH
SUCH PERSON FOR HIS DEFAULT OR DISOBEDIENCE." 

FN10  THE TWO SECTIONS ARE VIRTUALLY IDENTICAL.  SECTION 7402(B)
PROVIDES: 

"IF ANY PERSON IS SUMMONED UNDER THE INTERNAL REVENUE LAWS TO APPEAR,
TO TESTIFY, OR TO PRODUCE BOOKS, PAPERS, OR OTHER DATA, THE DISTRICT
COURT OF THE UNITED STATES FOR THE DISTRICT IN WHICH SUCH PERSON
RESIDES OR MAY BE FOUND SHALL HAVE JURISDICTION BY APPROPRIATE PROCESS
TO COMPEL SUCH ATTENDANCE, TESTIMONY, OR PRODUCTION OF BOOKS, PAPERS,
OR OTHER DATA." 

FN11  SEE N. 18, INFRA. 

FN12  SECTION 7602 PROVIDES: 

"FOR THE PURPOSE OF ASCERTAINING THE CORRECTNESS OF ANY RETURN,
MAKING A RETURN WHERE NONE HAS BEEN MADE, DETERMINING THE LIABILITY OF
ANY PERSON FOR ANY INTERNAL REVENUE TAX OR THE LIABILITY AT LAW OR IN
EQUITY OF ANY TRANSFEREE OR FIDUCIARY OF ANY PERSON IN RESPECT OF ANY
INTERNAL REVENUE TAX, OR COLLECTING ANY SUCH LIABILITY, THE SECRETARY
OR HIS DELEGATE IS AUTHORIZED: 

"(1)  TO EXAMINE ANY BOOKS, PAPERS, RECORDS, OR OTHER DATA WHICH MAY
BE RELEVANT OR MATERIAL TO SUCH INQUIRY: 

"(2)  TO SUMMON THE PERSON LIABLE FOR TAX OR REQUIRED TO PERFORM THE
ACT, OR ANY OFFICER OR EMPLOYEE OF SUCH PERSON, OR ANY PERSON HAVING
POSSESSION, CUSTODY, OR CARE OF BOOKS OF ACCOUNT CONTAINING ENTRIES
RELATING TO THE BUSINESS OF THE PERSON LIABLE FOR TAX OR REQUIRED TO
PERFORM THE ACT, OR ANY OTHER PERSON THE SECRETARY OR HIS DELEGATE MAY
DEEM PROPER, TO APPEAR BEFORE THE SECRETARY OR HIS DELEGATE AT A TIME
AND PLACE NAMED IN THE SUMMONS AND TO PRODUCE SUCH BOOKS, PAPERS,
RECORDS, OR OTHER DATA, AND TO GIVE SUCH TESTIMONY, UNDER OATH, AS MAY
BE RELEVANT OR MATERIAL TO SUCH INQUIRY; AND 

"(3)  TO TAKE SUCH TESTIMONY OF THE PERSON CONCERNED, UNDER OATH, AS
MAY BE RELEVANT OR MATERIAL TO SUCH INQUIRY." 

FN13  OTHER RELEVANT LEGISLATIVE HISTORY TO LIKE EFFECT MAY BE FOUND
IN H.R. REP. NO. 350, 67TH CONG., 1ST SESS., 16 (1921); S. REP. NO.
275, 67TH CONG., 1ST SESS., 31 (1921); 61 CONG. REC. 5202 (AUG. 18,
1921), REMARKS OF MR. HAWLEY.  THE PROVISION WAS RE-ENACTED IN 1926. 
IN THE SENATE, A SUBSTITUTE MEASURE WAS ADOPTED WHICH WOULD HAVE
LIMITED THE COMMISSIONER TO TWO EXAMINATIONS APPERTAINING TO RETURNS OF
ANY ONE YEAR.  SENATOR REED'S OBJECTION TO THE ORIGINAL PROVISION WAS:
"BY MERELY CLAIMING FRAUD THE GOVERNMENT AT ANY TIME CAN MAKE
EXAMINATION AFTER EXAMINATION, SUBJECT ONLY TO ONE LIMITATION, THAT IT
MUST GIVE NOTICE THAT IT IS GOING TO MAKE THE EXAMINATION.  THAT, IN
ORDINARY COURSE, IS DONE BY THE MERE WRITING OF A LETTER," 67 CONG.
REC. 3856 (FEB. 12, 1926).  THERE IS NO INDICATION IN THE DISCUSSION
THAT THE COURTS WERE THOUGHT TO PLAY ANY SIGNIFICANT LIMITING ROLE. 
THE SENATE SUBSTITUTE WAS ULTIMATELY DELETED BY THE CONFERENCE
COMMITTEE AND THE ORIGINAL PROVISION RESUBSTITUTED.  H.R. REP. NO. 356,
69TH CONG., 1ST SESS., 55.  THE SECTION WAS RE-ENACTED IN 1939 AND 1954
WITHOUT SUBSTANTIAL CHANGE AND WITHOUT FURTHER ELABORATION OF THE
CONGRESSIONAL INTENT.  RESPONDENT CONTENDS THAT IN RE-ENACTING THE
PROVISION, CONGRESS MUST HAVE BEEN AWARE OF, AND ACQUIESCED IN,
DECISIONS OF LOWER COURTS THAT A SHOWING OF PROBABLE CAUSE IS
REQUIRED.  IN RE ANDREWS' TAX LIABILITY, 18 F. SUPP. 804 (1937);
ZIMMERMANN V. WILSON, 105 F.2D 583 (C.A. 3D CIR. 1939); IN RE BROOKLYN
PAWNBROKERS, 39 F. SUPP. 304 (1941); MARTIN V. CHANDIS SECURITIES CO.,
128 F.2D 731 (C.A. 9TH CIR. 1942).  THESE CASES REPRESENT NEITHER A
SETTLED JUDICIAL CONSTRUCTION, SEE IN RE KEEGAN, 18 F. SUPP. 746
(1937), NOR ONE WHICH WE WOULD BE JUSTIFIED IN PRESUMING CONGRESS, BY
ITS SILENCE, IMPLIEDLY APPROVED.  COMPARE SHAPIRO V. UNITED STATES, 355
U.S. 1. 

FN14  REVENUE ACT OF 1921, SEC. 250(D), 42 STAT. 265, PROVIDED A FOUR
YEAR PERIOD OF LIMITATION ON ORDINARY TAX LIABILITY. 

FN15  THE CONTRARY VIEW DERIVES NO SUPPORT FROM THE CHARACTERIZATION
OF THE LIMITATIONS PROVISION AS A "STATUTE OF REPOSE."  THE PRESENT
THREE-YEAR LIMITATION ON ASSESSMENT OF ORDINARY DEFICIENCIES RELIEVES
THE TAXPAYER OF CONCERN FOR FURTHER ASSESSMENTS OF THAT TYPE, BUT IT BY
NO MEANS FOLLOWS THAT IT LIMITS THE RIGHT OF THE GOVERNMENT TO
INVESTIGATE WITH RESPECT TO DEFICIENCIES FOR WHICH NO STATUTE OF
LIMITATIONS IS IMPOSED. 

FN16  THE COURT OF APPEALS APPEARS TO HAVE BEEN LED ASTRAY BY THE
FACT THAT THE GOVERNMENT ARGUED ITS CASE ON THE PREMISE THAT SEC.
7604(B) WAS THE GOVERNING STATUTE. 

FN17  SEE 1 DAVIS, ADMINISTRATIVE LAW, SEC. 3.12 (1958). 

FN18  BECAUSE SEC. 7604(A) CONTAINS NO PROVISION SPECIFYING THE
PROCEDURE TO BE FOLLOWED IN INVOKING THE COURT'S JURISDICTION, THE
FEDERAL RULES OF CIVIL PROCEDURE APPLY, MARTIN V. CHANDIS SECURITIES
CO., 128 F.2D 731.  THE PROCEEDINGS ARE INSTITUTED BY FILING A
COMPLAINT, FOLLOWED BY ANSWER AND HEARING.  IF THE TAXPAYER HAS
CONTUMACIOUSLY REFUSED TO COMPLY WITH THE ADMINISTRATIVE SUMMONS AND
THE SERVICE FEARS HE MAY FLEE THE JURISDICTION, APPLICATION FOR THE
SANCTIONS AVAILABLE UNDER SEC. 7604(B) MIGHT BE MADE SIMULTANEOUSLY
WITH THE FILING OF THE COMPLAINT. 

FN19  SEE 1 DAVIS, ADMINISTRATIVE LAW, SEC. 3.12 (1958). 

FN20  SEE JAFFE, THE JUDICIAL ENFORCEMENT OF ADMINISTRATIVE ORDERS,
76 HARV. L. REV.  865 (1963). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
GOLDBERG CONCUR, DISSENTING. 

CONGRESS, BY THE THREE-YEAR STATUTE OF LIMITATIONS THAT BARS
ASSESSMENTS OF TAX DEFICIENCIES EXCEPT (SO FAR AS RELEVANT HERE) IN
CASE OF FRAUD, 26 U.S.C. SECS. 6501(A) AND (C), HAS BROUGHT INTO BEING
A "STATUTE OF RESPOSE" (FN1) THAT I WOULD RESPECT MORE HIGHLY THAN MY
BRETHREN.  I WOULD RESPECT IT BY REQUIRING THE DISTRICT COURT TO BE
SATISFIED THAT THE SERVICE IS NOT ACTING CAPRICIOUSLY IN REOPENING THE
CLOSED TAX PERIOD.  SINCE THE AGENCY MUST GO TO THE COURT FOR PROCESS
TO COMPEL THE PRODUCTION OF THE RECORDS FOR THE CLOSED TAX PERIOD, I
WOULD INSIST THAT THE DISTRICT COURT ACT IN A JUDICIAL CAPACITY, FREE
TO DISAGREE WITH THE ADMINISTRATIVE DECISION UNLESS THAT MINIMUM
STANDARD IS MET.  (FN2) 

OKLAHOMA PRESS PUB. CO. V. WALLING, 327 U.S. 186, DOES NOT SEEM TO ME
TO BE RELEVANT.  IT DEALT WITH THE USUAL INVESTIGATIVE POWERS OF
ADMINISTRATIVE AGENCIES; AND AS THE COURT SAID IN THAT CASE, CONGRESS
SET NO STANDARDS FOR ADMINISTRATIVE ACTION WHICH THE JUDICIARY FIRST
HAD TO WEIGH AND APPRAISE.  (FN3)  ID., 215-216.  HERE WE HAVE A
CONGRESSIONAL "STATUTE OF REPOSE" EMBODIED IN THE THREE-YEAR STATUTE OF
LIMITATIONS.  I WOULD MAKE IT MEANINGFUL BY PROTECTING IT FROM INVASION
BY MERE ADMINISTRATIVE FIAT.  WHERE THE LIMITATIONS PERIOD HAS EXPIRED,
AN EXAMINATION IS PRESUMPTIVELY "UNNECESSARY" WITHIN THE MEANING OF
SEC. 7605(B) - A PRESUMPTION THE SERVICE MUST OVERCOME.  THAT IS TO
SAY, A RE-EXAMINATION OF THE TAXPAYER'S RECORDS AFTER THE THREE-YEAR
PERIOD IS "UNNECESSARY" WITHIN THE MEANING OF SEC. 7605(B), UNLESS THE
DISTRICT COURT IS SHOWN SOMETHING MORE THAN MERE CAPRICE FOR BELIEVING
FRAUD WAS PRACTICED ON THE REVENUE.  WITHOUT THAT MINIMUM SAFEGUARD THE
STATUTORY STATUS OF REPOSE BECOMES RATHER MEANINGLESS. 

FN1  SEE THE REMARKS OF SENATORS SMITH, ASHURST, AND REED IN 67 CONG.
REC. 3852-3853. 

FN2  THE FIRST CIRCUIT REQUIRES THE COMMISSIONER TO SHOW THAT "A
REASONABLE BASIS EXISTS FOR A SUSPICION OF FRAUD," O'CONNOR V.
O'CONNELL, 253 F.2D 365, 370; THE NINTH CIRCUIT REQUIRES THAT THE
DECISION TO INVESTIGATE FOR FRAUD APPEAR AS "A MATTER OF RATIONAL
JUDGMENT BASED ON THE CIRCUMSTANCES OF THE PARTICULAR CASE," DE MASTERS
V. AREND, 313 F.2D 79, 90; THE THIRD CIRCUIT REQUIRES THAT THE AGENT'S
SUSPICION OF FRAUD BY "REASONABLE" IN THE EYES OF THE DISTRICT COURT. 
325 F.2D 914, 916. 

FN3  THE CASE IS MORE LIKE UNITED STATES V. MORTON SALT CO., 338 U.S.
632, WHERE, AS RESPECTS THE POWER OF THE FEDERAL TRADE COMMISSION TO
REQUIRE ISSUANCE OF "SPECIAL" REPORTS, THE COURT RESERVED THE RIGHT TO
PREVENT THE "ARBITRARY" EXERCISE OF THAT ADMINISTRATIVE POWER.  ID., AT
654. 
..END :














RYAN V. UNITED STATES 379 U.S. 61 


NO. 12.  ARGUED OCTOBER 14, 1964.  - DECIDED NOVEMBER 23, 1964.  - 320
F.2D 500, AFFIRMED. 


GOVERNMENT NEED NOT SHOW PROBABLE CAUSE FOR SUSPECTING FRAUD IN ORDER
TO EXAMINE TAXPAYER'S RECORDS FOR CLOSED YEARS.  UNITED STATES V.
POWELL, ANTE, P. 48, FOLLOWED.  P. 62. 

RYAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN AUGUST 1961, INTERNAL REVENUE AGENT WHELAN ISSUED A SUMMONS TO
TAXPAYER RYAN ORDERING HIM TO PRODUCE HIS BOOKS FOR THE YEARS 1942
THROUGH 1953 INCLUSIVE.  RYAN APPEARED BUT REFUSED TO PRODUCE THE
RECORDS, CLAIMING THAT BECAUSE TAX LIABILITY FOR THOSE YEARS WAS LONG
SINCE BARRED EXCEPT FOR FRAUD, (FN1) THE AGENT HAD NO RIGHT TO EXAMINE
THE RECORDS UNLESS HE COULD SHOW GROUNDS FOR SUSPECTING FRAUD. 

THE GOVERNMENT THEN INSTITUTED AN ENFORCEMENT PROCEEDING IN A FEDERAL
DISTRICT COURT PURSUANT TO SEC. 7402(B) OF THE INTERNAL REVENUE CODE OF
1954.  (FN2)  THE COMPLAINT ALLEGED THAT ON THE BASIS OF ESTIMATED NET
WORTH CALCULATIONS THE AGENT STRONGLY SUSPECTED FRAUD, AND THAT
EXAMINATION OF THE RECORDS FOR THE YEARS IN QUESTION WAS RELEVANT AND
MATERIAL IN DETERMINING ITS EXISTENCE.  THE TAXPAYER ANSWERED, PUTTING
THE QUESTION OF PROBABLE CAUSE IN ISSUE, AND, IN ADDITION, STATING THAT
HE HAD NOT RECEIVED THE LETTER REQUIRED BY SEC. 7605(B) INFORMING HIM
THAT THE SECRETARY OR HIS DELEGATE HAD DETERMINED THE EXAMINATION TO BE
NECESSARY.  (FN3) 

AT THE HEARING THE DISTRICT JUDGE CLEARLY INDICATED HIS OPINION THAT
THE GOVERNMENT NEED NOT SHOW PROBABLE CAUSE FOR SUSPECTING FRAUD, AND
ORDERED RYAN TO PRODUCE THOSE RECORDS WHICH HE HAD AVAILABLE.  ALTHOUGH
THE HEARING CONFIRMED RYAN'S ASSERTION THAT NO "NECESSITY LETTER" HAD
BEEN SENT TO HIM, THE JUDGE MADE NO MENTION OF THIS, PROBABLY BECAUSE
COUNSEL DID NOT PRESS THE POINT. 

THE COURT OF APPEALS AFFIRMED, 320 F.2D 500, ON THE THEORY THAT NO
FULL-SCALE SHOWING OF PROBABLE CAUSE NEED BE MADE.  EXCEPT FOR THE
RECORDS RELATING TO THE YEAR 1945, WHICH APPEARED TO HAVE BEEN ONCE
PREVIOUSLY EXAMINED, THE COURT RULED THAT NO NECESSITY LETTER WAS
REQUIRED BY SEC. 7605 (B) BECAUSE THE GOVERNMENT HAD MADE NO PREVIOUS
EXAMINATION OF THOSE YEARS. 

WE GRANTED CERTIORARI, 376 U.S. 904, ON THE ONLY ISSUE RAISED BY
PETITIONER, WHETHER THE GOVERNMENT MUST SHOW PROBABLE CAUSE FOR ITS
EXAMINATION OF THE RECORDS.  (FN4)  ON THAT ISSUE WE SUSTAIN THE
JUDGMENT OF THE COURT OF APPEALS FOR THE REASONS GIVEN IN UNITED STATES
V. POWELL, DECIDED TODAY, ANTE, P. 48.  AFFIRMED. 

FN1  R.C., SEC. 6501.  SEE UNITED STATES V. POWELL, DECIDED TODAY,
ANTE, P. 48, AT P. 49, NOTE 2. 

FN2  SEE ID., AT P. 52, NOTE 10. 

FN3  SEE ID., AT P. 52. 

FN4  THE PROPRIETY OF THE COURT'S INTERPRETATION OF THE NECESSITY
LETTER REQUIREMENT OF SEC. 7605(B) IS, THEREFORE, NOT BEFORE US.  SEE
TRAILMOBILE CO. V. WHIRLS, 331 U.S. 40, 48. 

MR. JUSTICE STEWART AND MR. JUSTICE GOLDERG CONCUR IN THE RESULT,
BECAUSE THEY BELIEVE THAT THROUGH THE TESTIMONY OF INTERNAL REVENUE
AGENT WHELAN A SUFFICIENT SHOWING WAS MADE THAT THE GOVERNMENT WAS NOT
PROCEEDING CAPRICIOUSLY IN THIS CASE. 

MR. JUSTICE DOUGLAS DISSENTS FOR THE REASONS GIVEN IN HIS SEPARATE
OPINION IN UNITED STATES V. POWELL, ANTE, P. 59. 
..END :























GARRISON V. LOUISIANA 379 U.S. 64 


NO. 4.  ARGUED APRIL 22, 1964.  - RESTORED TO THE CALENDAR FOR
REARGUMENT JUNE 22, 1964.  - REARGUED OCTOBER 19, 1964 - DECIDED
NOVEMBER 23, 1964 - 244 LA. 787, 154 SO. 2D 400, REVERSED. 


APPELLANT, A DISTRICT ATTORNEY IN LOUISIANA, DURING A DISPUTE WITH
CERTAIN STATE-COURT JUDGES OF HIS PARISH, ACCUSED THEM AT A PRESS
CONFERENCE OF LAZINESS AND INEFFICIENCY AND OF HAMPERING HIS EFFORTS TO
ENFORCE THE VICE LAWS.  A STATE COURT CONVICTED HIM OF VIOLATING THE
LOUISIANA CRIMINAL DEFAMATION STATUTE, WHICH IN THE CONTEXT OF
CRITICISM OF OFFICIAL CONDUCT INCLUDES PUNISHMENT FOR TRUE STATEMENTS
MADE WITH "ACTUAL MALICE" IN THE SENSE OF ILL-WILL AS WELL AS FALSE
STATEMENTS IF MADE WITH ILL-WILL OR WITHOUT REASONABLE BELIEF THAT THEY
WERE TRUE.  THE STATE SUPREME COURT AFFIRMED THE CONVICTION, HOLDING
THAT THE STATUTE DID NOT UNCONSTITUTIONALLY ABRIDGE APPELLANT'S RIGHTS
OF FREE EXPRESSION.  HELD: 

1.  THE CONSTITUTION LIMITS STATE POWER TO IMPOSE SANCTIONS FOR
CRITICISM OF THE OFFICIAL CONDUCT OF PUBLIC OFFICIALS, IN CRIMINAL
CASES AS IN CIVIL CASES, TO FALSE STATEMENTS CONCERNING OFFICIAL
CONDUCT MADE WITH KNOWLEDGE OF THEIR FALSITY OR WITH RECKLESS DISREGARD
OF WHETHER THEY WERE FALSE OR NOT.  NEW YORK TIMES CO. V. SULLIVAN, 376
U.S. 254, FOLLOWED.  PP. 67-75. 

2.  APPELLANT'S ACCUSATIONS CONCERNED THE JUDGES' OFFICIAL CONDUCT
AND DID NOT BECOME PRIVATE DEFAMATION BECAUSE THEY MIGHT ALSO HAVE
REFLECTED ON THE JUDGES' PRIVATE CHARACTER.  PP. 76-77. 

GARRISON V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANT IS THE DISTRICT ATTORNEY OF ORLEANS PARISH, LOUISIANA. 
DURING A DISPUTE WITH THE EIGHT JUDGES OF THE CRIMINAL DISTRICT COURT
OF THE PARISH, HE HELD A PRESS CONFERENCE AT WHICH HE ISSUED A
STATEMENT DISPARAGING THEIR JUDICIAL CONDUCT.  AS A RESULT, HE WAS
TRIED WITHOUT A JURY BEFORE A JUDGE FROM ANOTHER PARISH AND CONVICTED
OF CRIMINAL DEFAMATION UNDER THE LOUISIANA CRIMINAL DEFAMATION
STATUTE.  (FN1)  THE PRINCIPAL CHARGES ALLEGED TO BE DEFAMATORY WERE
HIS ATTRIBUTION OF A LARGE BACKLOG OF PENDING CRIMINAL CASES TO THE
INEFFICIENCY, LAZINESS, AND EXCESSIVE VACATIONS OF THE JUDGES, AND HIS
ACCUSATION THAT, BY REFUSING TO AUTHORIZE DISBURSEMENTS TO COVER THE
EXPENSES OF UNDERCOVER INVESTIGATIONS OF VICE IN NEW ORLEANS, THE
JUDGES HAD HAMPERED HIS EFFORTS TO ENFORCE THE VICE LAWS.  IN IMPUGNING
THEIR MOTIVES, HE SAID: 

"THE JUDGES HAVE NOW MADE IT ELOQUENTLY CLEAR WHERE THEIR SYMPATHIES
LIE IN REGARD TO AGGRESSIVE VICE INVESTIGATIONS BY REFUSING TO
AUTHORIZE USE OF THE DA'S FUNDS TO PAY FOR THE COST OF CLOSING DOWN THE
CANAL STREET CLIP JOINTS  ...  . 

     *         *         *         *      * 

"  ...  THIS RAISES INTERESTING QUESTIONS ABOUT THE RACKETEER
INFLUENCES ON OUR EIGHT VACATION-MINDED JUDGES."  (FN2) 

THE SUPREME COURT OF LOUISIANA AFFIRMED THE CONVICTION, 244 LA. 787,
154 SO. 2D 400.  THE TRIAL COURT AND THE STATE SUPREME COURT BOTH
REJECTED APPELLANT'S CONTENTION THAT THE STATUTE UNCONSTITUTIONALLY
ABRIDGED HIS FREEDOM OF EXPRESSION.  WE NOTED PROBABLE JURISDICTION OF
THE APPEAL.  375 U.S. 900.  ARGUMENT WAS FIRST HEARD IN THE 1963 TERM,
AND THE CASE WAS ORDERED RESTORED TO THE CALENDAR FOR REARGUMENT, 377
U.S. 986.  WE REVERSE. 

                                              I. 

IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, WE HELD THAT THE
CONSTITUTION LIMITS STATE POWER, IN A CIVIL ACTION BROUGHT BY A PUBLIC
OFFICIAL FOR CRITICISM OF HIS OFFICIAL CONDUCT, TO AN AWARD OF DAMAGES
FOR A FALSE STATEMENT "MADE WITH 'ACTUAL MALICE' - THAT IS, WITH
KNOWLEDGE THAT IT WAS FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT
WAS FALSE OR NOT."  376 U.S., AT 279-280.  AT THE OUTSET, WE MUST
DECIDE WHETHER, IN VIEW OF THE DIFFERING HISTORY AND PURPOSES OF
CRIMINAL LIBEL, THE NEW YORK TIMES RULE ALSO LIMITS STATE POWER TO
IMPOSE CRIMINAL SANCTIONS FOR CRITICISM OF THE OFFICIAL CONDUCT OF
PUBLIC OFFICIALS.  WE HOLD THAT IT DOES. 

WHERE CRITICISM OF PUBLIC OFFICIALS IS CONCERNED, WE SEE NO MERIT IN
THE ARGUMENT THAT CRIMINAL LIBEL STATUTES SERVE INTERESTS DISTINCT FROM
THOSE SECURED BY CIVIL LIBEL LAWS, AND THEREFORE SHOULD NOT BE SUBJECT
TO THE SAME LIMITATIONS.  (FN3)  AT COMMON LAW, TRUTH WAS NO DEFENSE TO
CRIMINAL LIBEL.  ALTHOUGH THE VICTIM OF A TRUE BUT DEFAMATORY
PUBLICATION MIGHT NOT HAVE BEEN UNJUSTLY DAMAGED IN REPUTATION BY THE
LIBEL, THE SPEAKER WAS STILL PUNISHABLE SINCE THE REMEDY WAS DESIGNED
TO AVERT THE POSSIBILITY THAT THE UTTERANCE WOULD PROVOKE AN ENRAGED
VICTIM TO A BREACH OF PEACE.  THAT ARGUMENT IS WELL STATED IN EDWARD
LIVINGSTON'S EXPLANATION OF THE DEFAMATION PROVISIONS OF HIS PROPOSED
PENAL CODE FOR LOUISIANA: 

"IN MOST CASES, THE CONNEXION BETWEEN CAUSE AND EFFECT EXISTS BETWEEN
THE SUBJECT OF THIS CHAPTER AND THAT OF A SUBSEQUENT ONE - OF DUELS. 
DEFAMATION, EITHER REAL OR SUPPOSED, IS THE CAUSE OF MOST OF THOSE
COMBATS WHICH NO LAWS HAVE YET BEEN ABLE TO SUPPRESS.  IF LAWGIVERS HAD
ORIGINALLY CONDESCENDED TO PAY SOME ATTENTION TO THE PASSIONS AND
FEELINGS OF THOSE FOR WHOM THEY WERE TO LEGISLATE, THESE APPEALS TO
ARMS WOULD NEVER HAVE USURPED A POWER SUPERIOR TO THE LAWS; BUT BY
AFFORDING NO SATISFACTION FOR THE WOUNDED FEELINGS OF HONOUR, THEY
DROVE INDIVIDUALS TO AVENGE ALL WRONGS OF THAT DESCRIPTION, DENIED A
PLACE IN THE CODE OF CRIMINAL LAW.  INSULTS FORMED A TITLE IN THAT OF
HONOUR, WHICH CLAIMED EXCLUSIVE JURISDICTION OF THIS OFFENCE." 
LIVINGSTON, A SYSTEM OF PENAL LAW FOR THE STATE OF LOUISIANA, AT 177
(1833).  (FN4) 

EVEN IN LIVINGSTON'S DAY, HOWEVER, PREFERENCE FOR THE CIVIL REMEDY,
WHICH ENABLED THE FRUSTRATED VICTIM TO TRADE CHIVALROUS SATISFACTION
FOR DAMAGES, HAD SUBSTANTIALLY ERODED THE BREACH OF THE PEACE
JUSTIFICATION FOR CRIMINAL LIBEL LAWS.  IN FACT, IN EARLIER, MORE
VIOLENT, TIMES, THE CIVIL REMEDY HAD VIRTUALLY PRE-EMPTED THE FIELD OF
DEFAMATION; EXCEPT AS A WEAPON AGAINST SEDITIOUS LIBEL, THE CRIMINAL
PROSECUTION FELL INTO VIRTUAL DESUETUDE.  (FN5)  CHANGING MORES AND THE
VIRTUAL DISAPPEARANCE OF CRIMINAL LIBEL PROSECUTIONS LEND SUPPORT TO
THE OBSERVATION THAT "  ...  UNDER MODERN CONDITIONS, WHEN THE RULE OF
LAW IS GENERALLY ACCEPTED AS A SUBSTITUTE FOR PRIVATE PHYSICAL
MEASURES, IT CAN HARDLY BE URGED THAT THE MAINTENANCE OF PEACE REQUIRES
A CRIMINAL PROSECUTION FOR PRIVATE DEFAMATION."  EMERSON, TOWARD A
GENERAL THEORY OF THE FIRST AMENDMENT, 72 YALE L.J. 877, 924 (1963). 
(FN6)  THE ABSENCE IN THE PROPOSED OFFICIAL DRAFT OF THE MODEL PENAL
CODE OF THE AMERICAN LAW INSTITUTE OF ANY CRIMINAL LIBEL STATUTE ON THE
LOUISIANA PATTERN REFLECTS THIS MODERN CONSENSUS.   THE ALI REPORTERS,
IN EXPLAINING THE OMISSION, GAVE COGENT EVIDENCE OF THE OBSOLESCENCE OF
LIVINGSTON'S JUSTIFICATION: 

"IT GOES WITHOUT SAYING THAT PENAL SANCTIONS CANNOT BE JUSTIFIED
MERELY BY THE FACT THAT DEFAMATION IS EVIL OR DAMAGING TO A PERSON IN
WAYS THAT ENTITLE HIM TO MAINTAIN A CIVIL SUIT.  USUALLY WE RESERVE THE
CRIMINAL LAW FOR HARMFUL BEHAVIOR WHICH EXCEPTIONALLY DISTURBS THE
COMMUNITY'S SENSE OF SECURITY  ...  .  IT SEEMS EVIDENT THAT PERSONAL
CALUMNY FALLS IN NEITHER OF THESE CLASSES IN THE U.S.A., THAT IT IS
THEREFORE INAPPROPRIATE FOR PENAL CONTROL, AND THAT THIS PROBABLY
ACCOUNTS FOR THE PAUCITY OF PROSECUTIONS AND THE NEAR DESUETUDE OF
PRIVATE CRIMINAL LIBEL LEGISLATION IN THIS COUNTRY  ...  ."  MODEL
PENAL CODE, TENT.  DRAFT NO. 13, 1961, SEC. 250.7, COMMENTS, AT 44. 

THE REPORTERS THEREFORE RECOMMENDED ONLY NARROWLY DRAWN STATUTES
DESIGNED TO REACH WORDS TENDING TO CAUSE A BREACH OF THE PEACE, SUCH AS
THE STATUTE SUSTAINED IN CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, OR
DESIGNED TO REACH SPEECH, SUCH AS GROUP VILIFICATION, "ESPECIALLY
LIKELY TO LEAD TO PUBLIC DISORDERS," SUCH AS THE STATUTE SUSTAINED IN
BEAUHARNAIS V. ILLINOIS, 343 U.S. 250.  MODEL PENAL CODE, SUPRA, AT
45.  BUT LOUISIANA'S REJECTION OF THE CLEAR-AND-PRESENT-DANGER STANDARD
AS IRRELEVANT TO THE APPLICATION OF ITS STATUTE, 244 LA., AT 833, 154
SO. 2D, AT 416, COUPLED WITH THE ABSENCE OF ANY LIMITATION IN THE
STATUTE ITSELF TO SPEECH CALCULATED TO CAUSE BREACHES OF THE PEACE,
LEADS US TO CONCLUDE THAT THE LOUISIANA STATUTE IS NOT THIS SORT OF
NARROWLY DRAWN STATUTE. 

WE NEXT CONSIDER WHETHER THE HISTORICAL LIMITATION OF THE DEFENSE OF
TRUTH IN CRIMINAL LIBEL TO UTTERANCES PUBLISHED "WITH GOOD MOTIVES AND
FOR JUSTIFIABLE ENDS" (FN7) SHOULD BE INCORPORATED INTO THE NEW YORK
TIMES RULE AS IT APPLIES TO CRIMINAL LIBEL STATUTES; IN PARTICULAR, WE
MUST ASK WHETHER THIS HISTORY PERMITS NEGATING THE TRUTH DEFENSE, AS
THE LOUISIANA STATUTE DOES, ON A SHOWING OF MALICE IN THE SENSE OF ILL
WILL.  THE "GOOD MOTIVES" RESTRICTION INCORPORATED IN MANY STATE
CONSTITUTIONS AND STATUTES TO REFLECT ALEXANDER HAMILTON'S
UNSUCCESSFULLY URGED FORMULA IN PEOPLE V. CROSWELL, 3 JOHNS.  CAS. 
337, 352 (N.Y. SUPREME COURT 1804), LIBERALIZED THE COMMON-LAW RULE
DENYING ANY DEFENSE FOR TRUTH.  SEE RAY, TRUTH:  A DEFENSE TO LIBEL, 16
MINN. L. REV. 43, 46-49 (1931); KELLY, CRIMINAL LIBEL AND FREE SPEECH,
6 KAN. L. REV. 295, 326-328 (1958).  WE NEED NOT BE CONCERNED WHETHER
THIS LIMITATION SERVES A LEGITIMATE STATE INTEREST TO THE EXTENT THAT
IT REFLECTS ABHORRENCE THAT "A MAN'S FORGOTTEN MISCONDUCT, OR THE
MISCONDUCT OF A RELATION, IN WHICH THE PUBLIC HAD NO INTEREST, SHOULD
BE WANTONLY RAKED UP, AND PUBLISHED TO THE WORLD, ON THE GROUND OF ITS
BEING TRUE."   69 HANSARD, PARLIAMENTARY DEBATES 1230 (3D SERIES)(H.L.
JUNE 1, 1843)(REPORT OF LORD CAMPBELL).  (FN8)  IN ANY EVENT, WHERE THE
CRITICISM IS OF PUBLIC OFFICIALS AND THEIR CONDUCT OF PUBLIC BUSINESS,
THE INTEREST IN PRIVATE REPUTATION IS OVERBORNE BY THE LARGER PUBLIC
INTEREST, SECURED BY THE CONSTITUTION, IN THE DISSEMINATION OF TRUTH. 
(FN9)  IN SHORT, WE AGREE WITH THE NEW HAMPSHIRE COURT IN STATE V.
BURNHAM, 9 N.H. 34, 42-43, 31 AM. DEC. 217, 221 (1837): 

"IF UPON A LAWFUL OCCASION FOR MAKING A PUBLICATION, HE HAS PUBLISHED
THE TRUTH, AND NO MORE, THERE IS NO SOUND PRINCIPLE WHICH CAN MAKE HIM
LIABLE, EVEN IF HE WAS ACTUATED BY EXPRESS MALICE ...  . 

"IT HAS BEEN SAID THAT IT IS LAWFUL TO PUBLISH TRUTH FROM GOOD
MOTIVES, AND FOR JUSTIFIABLE ENDS.  BUT THIS RULE IS TOO NARROW.  IF
THERE IS A LAWFUL OCCASION - A LEGAL RIGHT TO MAKE A PUBLICATION - AND
THE MATTER TRUE, THE END IS JUSTIFIABLE, AND THAT, IN SUCH CASE, MUST
BE SUFFICIENT." 

MOREOVER, EVEN WHERE THE UTTERANCE IS FALSE, THE GREAT PRINCIPLES OF
THE CONSTITUTION WHICH SECURE FREEDOM OF EXPRESSION IN THIS AREA
PRECLUDE ATTACHING ADVERSE CONSEQUENCES TO ANY EXCEPT THE KNOWING OR
RECKLESS FALSEHOOD.  DEBATE ON PUBLIC ISSUES WILL NOT BE UNINHIBITED IF
THE SPEAKER MUST RUN THE RISK THAT IT WILL BE PROVED IN COURT THAT HE
SPOKE OUT OF HATRED; EVEN IF HE DID SPEAK OUT OF HATRED, UTTERANCES
HONESTLY BELIEVED CONTRIBUTE TO THE FREE INTERCHANGE OF IDEAS AND THE
ASCERTAINMENT OF TRUTH.  UNDER A RULE LIKE THE LOUISIANA RULE,
PERMITTING A FINDING OF MALICE BASED ON AN INTENT MERELY TO INFLICT
HARM, RATHER THAN AN INTENT TO INFLICT HARM THROUGH FALSEHOOD, "IT
BECOMES A HAZARDOUS MATTER TO SPEAK OUT AGAINST A POPULAR POLITICIAN,
WITH THE RESULT THAT THE DISHONEST AND INCOMPETENT WILL BE SHIELDED." 
NOEL, DEFAMATION OF PUBLIC OFFICERS AND CANDIDATES, 49 COL. L. REV.
875, 893 (1949).  MOREOVER, "IN THE CASE OF CHARGES AGAINST A POPULAR
POLITICAL FIGURE ...  IT MAY BE ALMOST IMPOSSIBLE TO SHOW FREEDOM FROM
ILL-WILL OR SELFISH POLITICAL MOTIVES."  ID., AT 893, N. 90.  SIMILAR
CONSIDERATIONS SUPPORTED OUR HOLDINGS THAT FEDERAL OFFICERS ENJOY AN
ABSOLUTE PRIVILEGE FOR DEFAMATORY PUBLICATION WITHIN THE SCOPE OF
OFFICIAL DUTY, REGARDLESS OF THE EXISTENCE OF MALICE IN THE SENSE OF
ILL-WILL.  BARR V. MATTEO, 360 U.S. 564; HOWARD V. LYONS, 360 U.S. 593;
CF. GREGOIRE V. BIDDLE, 177 F.2D 579 (C.A.2D CIR. 1949).  WHAT WE SAID
OF ALABAMA'S CIVIL LIBEL LAW IN NEW YORK TIMES, 376 U.S., AT 282-283,
APPLIES EQUALLY TO THE LOUISIANA CRIMINAL LIBEL RULE: "IT WOULD GIVE
PUBLIC SERVANTS AN UNJUSTIFIED PREFERENCE OVER THE PUBLIC THEY SERVE,
IF CRITICS OF OFFICIAL CONDUCT DID NOT HAVE A FAIR EQUIVALENT OF THE
IMMUNITY GRANTED TO THE OFFICIALS THEMSELVES." 

WE HELD IN NEW YORK TIMES THAT A PUBLIC OFFICIAL MIGHT BE ALLOWED THE
CIVIL REMEDY ONLY IF HE ESTABLISHES THAT THE UTTERANCE WAS FALSE AND
THAT IT WAS MADE WITH KNOWLEDGE OF ITS FALSITY OR IN RECKLESS DISREGARD
OF WHETHER IT WAS FALSE OR TRUE.  THE REASONS WHICH LED US SO TO HOLD
IN NEW YORK TIMES, 376 U.S., AT 279-280, APPLY WITH NO LESS FORCE
MERELY BECAUSE THE REMEDY IS CRIMINAL.  THE CONSTITUTIONAL GUARANTEES
OF FREEDOM OF EXPRESSION COMPEL APPLICATION OF THE SAME STANDARD TO THE
CRIMINAL REMEDY.  TRUTH MAY NOT BE THE SUBJECT OF EITHER CIVIL OR
CRIMINAL SANCTIONS WHERE DISCUSSION OF PUBLIC AFFAIRS IS CONCERNED. 
AND SINCE "  ...  ERRONEOUS STATEMENT IS INEVITABLE IN FREE DEBATE, AND
...  IT MUST BE PROTECTED IF THE FREEDOMS OF EXPRESSION ARE TO HAVE
THE 'BREATHING SPACE' THAT THEY 'NEED  ...  TO SURVIVE'  ...  ," 376
U.S., AT 271-272, ONLY THOSE FALSE STATEMENTS MADE WITH THE HIGH DEGREE
OF AWARENESS OF THEIR PROBABLE FALSITY DEMANDED BY NEW YORK TIMES MAY
BE THE SUBJECT OF EITHER CIVIL OR CRIMINAL SANCTIONS.  FOR SPEECH
CONCERNING PUBLIC AFFAIRS IS MORE THAN SELF-EXPRESSION; IT IS THE
ESSENCE OF SELF-GOVERNMENT.  THE FIRST AND FOURTEENTH AMENDMENTS EMBODY
OUR "PROFOUND NATIONAL COMMITMENT TO THE PRINCIPLE THAT DEBATE ON
PUBLIC ISSUES SHOULD BE UNINHIBITED, ROBUST, AND WIDE-OPEN, AND THAT IT
MAY WELL INCLUDE VEHEMENT, CAUSTIC, AND SOMETIMES UNPLEASANTLY SHARP
ATTACKS ON GOVERNMENT AND PUBLIC OFFICIALS."  NEW YORK TIMES CO. V.
SULLIVAN, 376 U.S., AT 270. 

THE USE OF CALCULATED FALSEHOOD, HOWEVER, WOULD PUT A DIFFERENT CAST
ON THE CONSTITUTIONAL QUESTION.  ALTHOUGH HONEST UTTERANCE, EVEN IF
INACCURATE, MAY FURTHER THE FRUITFUL EXERCISE OF THE RIGHT OF FREE
SPEECH, IT DOES NOT FOLLOW THAT THE LIE, KNOWINGLY AND DELIBERATELY
PUBLISHED ABOUT A PUBLIC OFFICIAL, SHOULD ENJOY A LIKE IMMUNITY.  AT
THE TIME THE FIRST AMENDMENT WAS ADOPTED, AS TODAY, THERE WERE THOSE
UNSCRUPULOUS ENOUGH AND SKILLFUL ENOUGH TO USE THE DELIBERATE OR
RECKLESS FALSEHOOD AS AN EFFECTIVE POLITICAL TOOL TO UNSEAT THE PUBLIC
SERVANT OR EVEN TOPPLE AN ADMINISTRATION.  CF. RIESMAN, DEMOCRACY AND
DEFAMATION: FAIR GAME AND FAIR COMMENT I, 42 COL. L. REV. 1085, 1088
1111 (1942).  THAT SPEECH IS USED AS A TOOL FOR POLITICAL ENDS DOES NOT
AUTOMATICALLY BRING IT UNDER THE PROTECTIVE MANTLE OF THE
CONSTITUTION.  FOR THE USE OF THE KNOWN LIE AS A TOOL IS AT ONCE AT
ODDS WITH THE PREMISES OF DEMOCRATIC GOVERNMENT AND WITH THE ORDERLY
MANNER IN WHICH ECONOMIC, SOCIAL, OR POLITICAL CHANGE IS TO BE
EFFECTED.  CALCULATED FALSEHOOD FALLS INTO THAT CLASS OF UTTERANCES
WHICH "ARE NO ESSENTIAL PART OF ANY EXPOSITION OF IDEAS, AND ARE OF
SUCH SLIGHT SOCIAL VALUE AS A STEP TO TRUTH THAT ANY BENEFIT THAT MAY
BE DERIVED FROM THEM IS CLEARLY OUTWEIGHED BY THE SOCIAL INTEREST IN
ORDER AND MORALITY  ...  ."  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568,
572.  HENCE THE KNOWINGLY FALSE STATEMENT AND THE FALSE STATEMENT MADE
WITH RECKLESS DISREGARD OF THE TRUTH, DO NOT ENJOY CONSTITUTIONAL
PROTECTION.                                                   II. 

WE FIND NO DIFFICULTY IN BRINGING THE APPELLANT'S STATEMENT WITHIN
THE PURVIEW OF CRITICISM OF THE OFFICIAL CONDUCT OF PUBLIC OFFICIALS,
ENTITLED TO THE BENEFIT OF THE NEW YORK TIMES RULE.  AS THE LOUISIANA
SUPREME COURT VIEWED THE STATEMENT, IT CONSTITUTED AN ATTACK UPON THE
PERSONAL INTEGRITY OF THE JUDGES, RATHER THAN ON OFFICIAL CONDUCT.  IN
SUSTAINING THE FINDING OF THE TRIAL COURT THAT THE APPELLANT'S
STATEMENT WAS DEFAMATORY, THE LOUISIANA SUPREME COURT HELD THAT "  ...
THE USE OF THE WORDS 'RACKETEER INFLUENCES' WHEN APPLIED TO ANYONE
SUGGESTS AND IMPUTES THAT HE HAS BEEN INFLUENCED TO PRACTICE FRAUD,
DECEIT, TRICKERY, CHEATING, AND DISHONESTY"; THAT "THE EXPRESSION THAT
THE JUDGES HAVE ENJOYED 300 DAYS VACATION OUT OF 19 MONTHS SUGGESTS AND
CONNOTES A VIOLATION OF THE 'DEADHEAD' STATUTE, LSA-R.S. 14:138, PUBLIC
PAYROLL FRAUD"; THAT "OTHER EXPRESSIONS SET OUT IN THE BILL OF
INFORMATION CONNOTE MALFEASANCE IN OFFICE.  LSA-R.S. 14:134; ART. IX,
SEC. 1, LA. CONST. OF 1921."  THE COURT CONCLUDED THAT "DEFENDANT'S
EXPRESSIONS  ...  ARE NOT CRITICISMS OF A COURT TRIAL OR OF THE MANNER
IN WHICH ANY ONE OF THE EIGHT JUDGES CONDUCTED HIS COURT WHEN IN
SESSION.  THE EXPRESSIONS CHARGED CONTAIN PERSONAL ATTACKS UPON THE
INTEGRITY AND HONESTY OF THE EIGHT JUDGES  ...  ."  244 LA., AT 834
835, 154 SO. 2D, AT 417-418. 

WE DO NOT THINK, HOWEVER, THAT APPELLANT'S STATEMENT MAY BE
CONSIDERED AS ONE CONSTITUTING ONLY A PURELY PRIVATE DEFAMATION.  THE
ACCUSATION CONCERNED THE JUDGES' CONDUCT OF THE BUSINESS OF THE
CRIMINAL DISTRICT COURT.  (FN10)  OF COURSE, ANY CRITICISM OF THE
MANNER IN WHICH A PUBLIC OFFICIAL PERFORMS HIS DUTIES WILL TEND TO
AFFECT HIS PRIVATE, AS WELL AS HIS PUBLIC, REPUTATION.  THE NEW YORK
TIMES RULE IS NOT RENDERED INAPPLICABLE MERELY BECAUSE AN OFFICIAL'S
PRIVATE REPUTATION, AS WELL AS HIS PUBLIC REPUTATION, IS HARMED.  THE
PUBLIC-OFFICIAL RULE PROTECTS THE PARAMOUNT PUBLIC INTEREST IN A FREE
FLOW OF INFORMATION TO THE PEOPLE CONCERNING PUBLIC OFFICIALS, THEIR
SERVANTS.  TO THIS END, ANYTHING WHICH MIGHT TOUCH ON AN OFFICIAL'S
FITNESS FOR OFFICE IS RELEVANT.  FEW PERSONAL ATTRIBUTES ARE MORE
GERMANE TO FITNESS FOR OFFICE THAN DISHONESTY, MALFEASANCE, OR IMPROPER
MOTIVATION, EVEN THOUGH THESE CHARACTERISTICS MAY ALSO AFFECT THE
OFFICIAL'S PRIVATE CHARACTER.  (FN11)  AS THE KANSAS SUPREME COURT SAID
IN COLEMAN V. MACLENNAN, SPEAKING OF CANDIDATES: 

"MANIFESTLY A CANDIDATE MUST SURRENDER TO PUBLIC SCRUTINY AND
DISCUSSION SO MUCH OF HIS PRIVATE CHARACTER AS AFFECTS HIS FITNESS FOR
OFFICE, AND THE LIBERAL RULE REQUIRES NO MORE.  BUT IN MEASURING THE
EXTENT OF A CANDIDATE'S PROFERT OF CHARACTER IT SHOULD ALWAYS BE
REMEMBERED THAT THE PEOPLE HAVE GOOD AUTHORITY FOR BELIEVING THAT
GRAPES DO NOT GROW ON THORNS NOR FIGS ON THISTLES."  78 KAN. 711, 739,
98 P. 281, 291 (1908). 

                                           III. 

APPLYING THE PRINCIPLES OF THE NEW YORK TIMES CASE, WE HOLD THAT THE
LOUISIANA STATUTE, AS AUTHORITATIVELY INTERPRETED BY THE SUPREME COURT
OF LOUISIANA, INCORPORATES CONSTITUTIONALLY INVALID STANDARDS IN THE
CONTEXT OF CRITICISM OF THE OFFICIAL CONDUCT OF PUBLIC OFFICIALS.  FOR,
CONTRARY TO THE NEW YORK TIMES RULE, WHICH ABSOLUTELY PROHIBITS
PUNISHMENT OF TRUTHFUL CRITICISM, THE STATUTE DIRECTS PUNISHMENT FOR
TRUE STATEMENTS MADE WITH "ACTUAL MALICE," SEE LSA-R.S. SEC. 14:48;
STATE V. COX, 246 LA. 748, 756, 167 SO. 2D 352, 355 (1964), HANDED DOWN
AFTER THE NEW YORK TIMES DECISION; BENNETT, THE LOUISIANA CRIMINAL
CODE, 5 LA. L. REV. 6, 34 (1942).  AND "ACTUAL MALICE" IS DEFINED IN
THE DECISIONS BELOW TO MEAN "HATRED, ILL-WILL OR ENMITY OR A WANTON
DESIRE TO INJURE  ...  ."  244 LA., AT 851, 154 SO. 2D, AT 423.  THE
STATUTE IS ALSO UNCONSTITUTIONAL AS INTERPRETED TO COVER FALSE
STATEMENTS AGAINST PUBLIC OFFICIALS.  THE NEW YORK TIMES STANDARD
FORBIDS THE PUNISHMENT OF FALSE STATEMENTS, UNLESS MADE WITH KNOWLEDGE
OF THEIR FALSITY OR IN RECKLESS DISREGARD OF WHETHER THEY ARE TRUE OR
FALSE.  BUT THE LOUISIANA STATUTE PUNISHES FALSE STATEMENTS WITHOUT
REGARD TO THAT TEST IF MADE WITH ILL-WILL; EVEN IF ILL-WILL IS NOT
ESTABLISHED, A FALSE STATEMENT CONCERNING PUBLIC OFFICIALS CAN BE
PUNISHED IF NOT MADE IN THE REASONABLE BELIEF OF ITS TRUTH.  THE
LOUISIANA SUPREME COURT AFFIRMED THE CONVICTION SOLELY ON THE GROUND
THAT THE EVIDENCE SUFFICED TO SUPPORT THE TRIAL COURT'S FINDING OF ILL
WILL, ENMITY, OR A WANTON DESIRE TO INJURE.  BUT THE TRIAL COURT ALSO
RESTED THE CONVICTION ON ADDITIONAL FINDINGS THAT THE STATEMENT WAS
FALSE AND NOT MADE IN THE REASONABLE BELIEF OF ITS TRUTH.  THE JUDGE
SAID: 

"IT IS INCONCEIVABLE TO ME THAT THE DEFENDANT COULD HAVE HAD A
REASONABLE BELIEF, WHICH COULD BE DEFINED AS AN HONEST BELIEF, THAT NOT
ONE BUT ALL EIGHT OF THESE JUDGES OF THE CRIMINAL DISTRICT COURT WERE
GUILTY OF WHAT HE CHARGED THEM WITH IN THE DEFAMATORY STATEMENT.  THESE
MEN HAVE BEEN HONORED  ...  WITH VERY HIGH OFFICES  ...  .  IT IS
INCONCEIVABLE TO ME THAT ALL OF THEM COULD HAVE BEEN GUILTY OF ALL OF
THE ACCUSATIONS MADE AGAINST THEM.  THEREFORE, I DO NOT BELIEVE THAT
THE QUALIFIED PRIVILEGE UNDER LSA-R.S., TITLE 14, SECTION 49, IS
APPLICABLE  ...  ." 

THIS IS NOT A HOLDING APPLYING THE NEW YORK TIMES TEST.  THE
REASONABLE-BELIEF STANDARD APPLIED BY THE TRIAL JUDGE IS NOT THE SAME
AS THE RECKLESS-DISREGARD-OF-TRUTH STANDARD.  ACCORDING TO THE TRIAL
COURT'S OPINION, A REASONABLE BELIEF IS ONE WHICH "AN ORDINARILY
PRUDENT MAN MIGHT BE ABLE TO ASSIGN A JUST AND FAIR REASON FOR"; THE
SUGGESTION IS THAT UNDER THIS TEST THE IMMUNITY FROM CRIMINAL
RESPONSIBILITY IN THE ABSENCE OF ILL-WILL DISAPPEARS ON PROOF THAT THE
EXERCISE OF ORDINARY CARE WOULD HAVE REVEALED THAT THE STATEMENT WAS
FALSE.  THE TEST WHICH WE LAID DOWN IN NEW YORK TIMES IS NOT KEYED TO
ORDINARY CARE; DEFEASANCE OF THE PRIVILEGE IS CONDITIONED, NOT ON MERE
NEGLIGENCE, BUT ON RECKLESS DISREGARD FOR THE TRUTH.  REVERSED. 

FN1  LA. REV. STAT., 1950, TIT. 14: 

"SEC. 47.  DEFAMATION. 

"DEFAMATION IS THE MALICIOUS PUBLICATION OR EXPRESSION IN ANY MANNER,
TO ANYONE OTHER THAN THE PARTY DEFAMED, OF ANYTHING WHICH TENDS: 

"(1)  TO EXPOSE ANY PERSON TO HATRED, CONTEMPT, OR RIDICULE, OR TO
DEPRIVE HIM OF THE BENEFIT OF PUBLIC CONFIDENCE OR SOCIAL INTERCOURSE;
OR: 

"(2)  TO EXPOSE THE MEMORY OF ONE DECEASED TO HATRED, CONTEMPT, OR
RIDICULE; OR: 

"(3)  TO INJURE ANY PERSON, CORPORATION, OR ASSOCIATION OF PERSONS IN
HIS OR THEIR BUSINESS OR OCCUPATION. 

"WHOEVER COMMITS THE CRIME OF DEFAMATION SHALL BE FINED NOT MORE THAN
THREE THOUSAND DOLLARS, OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR
BOTH. 

"SEC. 48.  PRESUMPTION OF MALICE. 

"WHERE A NON-PRIVILEGED DEFAMATORY PUBLICATION OR EXPRESSION IS FALSE
IT IS PRESUMED TO BE MALICIOUS UNLESS A JUSTIFIABLE MOTIVE FOR MAKING
IT IS SHOWN. 

"WHERE SUCH A PUBLICATION OR EXPRESSION IS TRUE, ACTUAL MALICE MUST
BE PROVED IN ORDER TO CONVICT THE OFFENDER. 

"SEC. 49.  QUALIFIED PRIVILEGE. 

"A QUALIFIED PRIVILEGE EXISTS AND ACTUAL MALICE MUST BE PROVED,
REGARDLESS OF WHETHER THE PUBLICATION IS TRUE OR FALSE, IN THE
FOLLOWING SITUATIONS: 

"(1)  WHERE THE PUBLICATION OR EXPRESSION IS A FAIR AND TRUE REPORT
OF ANY JUDICIAL, LEGISLATIVE, OR OTHER PUBLIC OR OFFICIAL PROCEEDING,
OR OF ANY STATEMENT, SPEECH, ARGUMENT, OR DEBATE IN THE COURSE OF THE
SAME. 

"(2)  WHERE THE PUBLICATION OR EXPRESSION IS A COMMENT MADE IN THE
REASONABLE BELIEF OF ITS TRUTH, UPON: 

"(A)  THE CONDUCT OF A PERSON IN RESPECT TO PUBLIC AFFAIRS; OR: 

"(B)  A THING WHICH THE PROPRIETOR THEREOF OFFERS OR EXPLAINS TO THE
PUBLIC. 

"(3)  WHERE THE PUBLICATION OR EXPRESSION IS MADE TO A PERSON
INTERESTED IN THE COMMUNICATION, BY ONE WHO IS ALSO INTERESTED OR WHO
STANDS IN SUCH A RELATION TO THE FORMER AS TO AFFORD A REASONABLE
GROUND FOR SUPPOSING HIS MOTIVE INNOCENT. 

"(4)  WHERE THE PUBLICATION OR EXPRESSION IS MADE BY AN ATTORNEY OR
PARTY IN A JUDICIAL PROCEEDING." 

LA. REV. STAT., 1962 CUM. SUPP., TIT. 14: 

"SEC. 50.  ABSOLUTE PRIVILEGE  ...  ." 

FN2  THE DISPUTE BETWEEN APPELLANT AND THE JUDGES AROSE OVER
DISBURSEMENTS FROM A FINES AND FEES FUND, WHICH WAS TO BE USED TO
DEFRAY EXPENSES OF THE DISTRICT ATTORNEY'S OFFICE; DISBURSEMENTS COULD
BE MADE ONLY ON MOTION OF THE DISTRICT ATTORNEY AND APPROVAL BY A JUDGE
OF THE CRIMINAL DISTRICT COURT.  AFTER APPELLANT TOOK OFFICE, ONE OF
THE INCUMBENT JUDGES REFUSED TO APPROVE A DISBURSEMENT FROM THE FUND
FOR FURNISHINGS FOR APPELLANT'S OFFICE.  WHEN THE JUDGE WENT ON
VACATION PRIOR TO HIS RETIREMENT IN SEPTEMBER 1962, APPELLANT OBTAINED
THE APPROVAL OF ANOTHER JUDGE, ALLEGEDLY BY MISREPRESENTING THAT THE
FIRST JUDGE HAD WITHDRAWN HIS OBJECTION.  THEREUPON, THE EIGHT JUDGES,
ON OCTOBER 5, 1962, ADOPTED A RULE THAT NO FURTHER DISBURSEMENTS OF THE
DISTRICT ATTORNEY FROM THE FUND WOULD BE APPROVED EXCEPT WITH THE
CONCURRENCE OF FIVE OF THE EIGHT JUDGES.  ON OCTOBER 26, 1962, THE
JUDGES RULED THAT DISBURSEMENTS TO PAY APPELLANT'S UNDERCOVER AGENTS TO
CONDUCT INVESTIGATIONS OF COMMERCIAL VICE IN THE BOURBON AND CANAL
STREET DISTRICTS OF NEW ORLEANS WOULD NOT BE APPROVED, AND EXPRESSED
DOUBT AS TO THE LEGALITY OF SUCH A USE OF THE FUND UNDER THE STATE
CONSTITUTION.  A FEW DAYS LATER, ON NOVEMBER 1, 1962, THE JUDGE, NOW
RETIRED, WHO HAD TURNED DOWN THE ORIGINAL MOTION ISSUED A PUBLIC
STATEMENT CRITICIZING APPELLANT'S CONDUCT OF THE OFFICE OF DISTRICT
ATTORNEY.  THE NEXT DAY, APPELLANT HELD THE PRESS CONFERENCE AT WHICH
HE MADE THE STATEMENT FOR WHICH HE WAS PROSECUTED. 

FN3  IN AFFIRMING APPELLANT'S CONVICTION, BEFORE NEW YORK TIMES WAS
HANDED DOWN, THE SUPREME COURT OF LOUISIANA RELIED ON STATEMENTS IN
ROTH V. UNITED STATES, 354 U.S. 476, 486-487, AND BEAUHARNAIS V.
ILLINOIS, 343 U.S. 250, 266, TO THE EFFECT THAT LIBELOUS UTTERANCES ARE
NOT WITHIN THE PROTECTION OF THE FIRST AND FOURTEENTH AMENDMENTS, AND
HENCE CAN BE PUNISHED WITHOUT A SHOWING OF CLEAR AND PRESENT DANGER. 
244 LA., AT 833-834, 154 SO. 2D, AT 416-417.  FOR THE REASONS STATED IN
NEW YORK TIMES, 376 U.S., AT 268-269, NOTHING IN ROTH OR BEAUHARNAIS
FORECLOSES INQUIRY INTO WHETHER THE USE OF LIBEL LAWS, CIVIL OR
CRIMINAL, TO IMPOSE SANCTIONS UPON CRITICISM OF THE OFFICIAL CONDUCT OF
PUBLIC OFFICIALS TRANSGRESSES CONSTITUTIONAL LIMITATIONS PROTECTING
FREEDOM OF EXPRESSION.  WHETHER THE LIBEL LAW BE CIVIL OR CRIMINAL, IT
MUST SATISFY RELEVANT CONSTITUTIONAL STANDARDS. 

FN4  LIVINGSTON'S CODE WAS NOT ADOPTED, AND IS NOT REFLECTED IN THE
CURRENT LOUISIANA STATUTE.  HIS SUGGESTED PROVISIONS FOR DEFAMATION
APPEAR AT PP. 421-425.  OF PARTICULAR INTEREST ARE ART. 369,
EXCULPATING TRUE STATEMENTS OF FACT OR INCORRECT OPINIONS AS TO THE
QUALIFICATIONS OF ANY PERSON FOR PUBLIC OFFICE, AND ART. 386(2),
EXCULPATING EVEN MISTAKEN OBSERVATIONS ON THE TENDENCIES OR MOTIVES OF
OFFICIAL ACTS OF PUBLIC OFFICERS, BUT NOT EXCULPATING FALSE ALLEGATIONS
OF SUCH MOTIVES AS WOULD BE CRIMINAL. 

FN5  5 HOLDSWORTH, HISTORY OF ENGLISH LAW, 207-208 (2D ED. 1937);
KELLY, CRIMINAL LIBEL AND FREE SPEECH, 6 KAN. L. REV. 295, 296-303
(1958). 

FN6  SEE THE LETTER OF MR. JUSTICE JACKSON, WHEN ATTORNEY GENERAL OF
THE UNITED STATES, DATED JUNE 11, 1940, AND ADDRESSED TO SENATOR
MILLARD E. TYDINGS, 87 CONG. REC. 5836-5837, IN WHICH HE STATED THAT
THE POLICY OF THE ATTORNEYS GENERAL OF THE UNITED STATES WAS NOT TO
PROSECUTE FOR CRITICISM OF PUBLIC OFFICIALS. 

FN7  THE FOLLOWING JURISDICTIONS HAVE CONSTITUTIONAL OR STATUTORY
PROVISIONS WHICH MAKE TRUTH A DEFENSE IF PUBLISHED WITH GOOD MOTIVES
AND FOR JUSTIFIABLE ENDS, OR SOME VARIANT THEREOF: 

ALASKA STAT., 1962, SEC. 11.15.320; ARIZ. REV. STAT. ANN., 1956, SEC.
13-353; CAL. CONST., 1879, ART. 1, SEC. 9; CAL. PEN.  CODE, 1955, SEC.
251; D.C. CODE ANN., 1961, SEC. 22-2303; FLA. CONST., 1885, DECLARATION
OF RIGHTS, SEC. 13; HAWAII REV. LAWS, 1955, SEC. 294-6; IDAHO CODE,
1948, SEC. 18-4803; ILL. CONST., 1870, ART. 2, SEC. 4; ILL. REV. STAT.,
1963, TIT. 38, SEC. 27-2; IOWA CONST., 1846, ART. I, SEC. 7; IOWA CODE,
1962, SEC. 737.4; KAN.  BILL OF RIGHTS, CONST., 1859, SEC. 11; KAN.
GEN. STAT. ANN., 1949, SEC. 21-2403; MASS.  GEN. LAWS ANN., 1959, C.
278, SEC. 8 (WITHOUT "ACTUAL MALICE"); MICH. CONST., 1963, ART. I, SEC.
19; MINN. STAT., 1961, SEC. 634.05; MISS.  CONST., 1890, ART. 3, SEC.
13; MISS.  CODE, 1942 (RECOMPILED 1956), SEC. 2269; MONT. CONST., 1889,
ART. III, SEC. 10; MONT. REV. CODES ANN., 1947, SEC. 94-2804; NEV.
CONST., 1864, ART. I. SEC. 9; NEV. REV. STAT., 1961, SEC.  200.510.3;
N.J. CONST., 1947, ART. 1, PARA. 6; N.Y. CONST., 1938, ART. I, SEC. 8;
N.Y. PEN.  CODE, SEC. 1342; N.D. CONST., 1889, ART. I, SEC. 9; N.D.
CENT. CODE, 1960, SEC. 12-28-04; OHIO CONST., 1851, ART. I, SEC. 11;
OKLA. CONST., 1907, ART. 2, SEC. 22; OKLA. STAT., 1951, TIT. 21, SEC.
774; ORE.  REV.  STAT., 1953, SEC. 163.420; R.I. CONST., 1843, ART. I,
SEC. 20; R.I. GEN. LAWS ANN., 1956, SEC. 9-6-9; S.D. CONST., 1889, ART.
VI, SEC. 5; S.D. CODE, 1939, SEC. 13.3406; UTAH CONST., 1895, ART. I,
SEC. 15; UTAH CODE ANN., 1953, SEC. 77-31-30; WASH. REV. CODE, 1951,
SEC. 9.58.020; WIS. CONST., 1848, ART. I, SEC. 3; WIS. STAT., 1961,
SEC. 942.01(3); WYO. CONST., 1890, ART. 1, SEC. 20.  CF. ENGLAND, LORD
CAMPBELL'S ACT, 6 & 7 VICT., C. 96, SEC. 6 (1843) (FOR THE PUBLIC
BENEFIT).    IN THE FOLLOWING JURISDICTIONS TRUTH DOES OPERATE AS A
COMPLETE DEFENSE: 

COLO. CONST., 1876, ART. II, SEC. 10; COLO. REV. STAT. ANN., 1953,
SEC. 40-8-13; BEARMAN V. PEOPLE, 91 COLO. 486, 493, 16 P.2D 425, 427
(1932); IND. CONST., 1851, ART. 1, SEC. 10; STATE V. BUSH, 122 IND. 42,
23 N.E. 677 (1890); MO. CONST., 1945, ART. I, SEC. 8; MO. REV.  STAT.,
1959, SEC. 559.440; NEB. CONST., 1875, ART. I, SEC. 5; NEB. REV. STAT.,
1943 (1956 REISSUE), SEC. 28-440; RAZEE V. STATE, 73 NEB. 732, 103 N.W.
438 (1905); N.M. CONST., 1911, ART. II, SEC. 17; N.M. STAT. ANN., 1953
(1964 REPLACEMENT), SEC. 40A-11-1 (FALSE AND MALICIOUS STATEMENT); N.C.
GEN. STAT., 1953, SEC. 15-168; S.C. CONST., 1895, ART. I, SEC. 21; S.C.
CODE, 1962, SEC. 16-161; VT. STAT. ANN., 1958, TIT. 13, SEC. 6560. 

THE FOLLOWING JURISDICTIONS ALLOW GREATER SCOPE FOR THE DEFENSE OF
TRUTH WHERE CRITICISM OF THE OFFICIAL CONDUCT OF PUBLIC OFFICIALS IS
CONCERNED: 

ALA. CONST., 1901, ART. 1, SEC. 12 (BUT ALA. CODE, 1940, TIT. 14,
SEC. 350 MAKES TRUTH A DEFENSE); DEL. CONST., 1897, ART. 1, SEC. 5;
DEL. CODE ANN., 1953, TIT. 11, SEC. 3506; KY. CONST., 1891, SEC. 9; ME.
CONST., 1820, ART. I, SEC. 4; ME. REV. STAT., 1954, C. 130, SEC. 34;
STATE V. BURNHAM, 9 N.H. 34, 31 AM. DEC. 217 (1837); PA. CONST., 1874,
ART. 1, SEC. 7; TENN. CONST., 1870, ART. 1, SEC. 19; TENN. CODE ANN.,
1955, SECS. 39-2704, 23-2603; TEX. CONST., 1876, ART. 1, SEC. 8; TEX.
CODE CRIM. PROC. ANN., 1954, ART. 13; TEX. PEN.  CODE ANN., 1953, ARTS.
1290(1), 1290(4). 

THE FOLLOWING JURISDICTIONS HAVE CONSTITUTIONAL OR STATUTORY
PROVISIONS UNDER WHICH EVIDENCE OF THE TRUTH MAY BE INTRODUCED, BUT IT
IS UNCLEAR WHETHER THIS OPERATES AS A COMPLETE DEFENSE: 

ARK. CONST., 1874, ART. 2, SEC. 6; ARK. STAT., 1947 (1964
REPLACEMENT), TIT. 41, SEC. 2403; CONN. CONST., 1818, ART. FIRST, SEC.
7; GA. CONST., 1877, SEC. 2-201; GA. CODE ANN., 1953, SEC. 26-2103; MD.
CODE ANN., 1957, ART. 75, SEC. 5; VA. CODE ANN., 1950 (1960
REPLACEMENT), SECS. 18.1-255, 18.1-256. 

IN ONE JURISDICTION THERE IS NO AUTHORITY IN POINT.  SEE STATE V.
PAYNE, 87 W.VA. 102, 104 S.E. 288 (1920). 

FN8  WE RECOGNIZE THAT DIFFERENT INTERESTS MAY BE INVOLVED WHERE
PURELY PRIVATE LIBELS, TOTALLY UNRELATED TO PUBLIC AFFAIRS, ARE
CONCERNED; THEREFORE, NOTHING WE SAY TODAY IS TO BE TAKEN AS INTIMATING
ANY VIEWS AS TO THE IMPACT OF THE CONSTITUTIONAL GUARANTEES IN THE
DISCRETE AREA OF PURELY PRIVATE LIBELS. 

FN9  EVEN THE LAW OF PRIVACY, WHICH EVOLVED TO MEET LORD CAMPBELL'S
RESERVATIONS, RECOGNIZES SEVERE LIMITATIONS WHERE PUBLIC FIGURES OR
NEWSWORTHY FACTS ARE CONCERNED.  SEE SIDIS V. F-R PUB. CORP., 113 F.2D
806, 809-810 (C.A.2D CIR. 1940). 

FN10  IN VIEW OF OUR RESULT, WE DO NOT DECIDE WHETHER APPELLANT'S
STATEMENT WAS FACTUAL OR MERELY COMMENT, OR WHETHER A STATE MAY PROVIDE
ANY REMEDY, CIVIL OR CRIMINAL, IF DEFAMATORY COMMENT ALONE, HOWEVER
VITUPERATIVE, IS DIRECTED AT PUBLIC OFFICIALS.  THE LOUISIANA COURTS
HELD THAT THE PRIVILEGE FOR FAIR COMMENT WAS EXCLUDED IN THE PRESENT
CASE BY MALICE OR LACK OF REASONABLE CARE, AND NOT BY THE ADDITION OF
FACTUAL ASSERTIONS.  FOR DIFFERENT FORMULATIONS OF COMMENT, IN THE
CONTEXT OF THE COMMON LAW FAIR-COMMENT RULE, SEE 1 HARPER AND JAMES,
THE LAW OF TORTS, SEC. 5.28, AT 458 (1956); NOTE, FAIR COMMENT, 62
HARV. L. REV. 1207, 1213 (1949); RESTATEMENT, TORTS, SEC. 606, COMMENT
B, SEC. 567 (1938). 

FN11 SEE, E.G., VERNON'S TEX. PEN.  CODE ANN., 1953, ART. 1290(2). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

FOR REASONS STATED AT GREATER LENGTH IN MY OPINIONS CONCURRING IN NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 293, AND DISSENTING IN
BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 267, AS WELL AS IN THE OPINION
OF MR. JUSTICE DOUGLAS IN THIS CASE, INFRA, P. 80, I CONCUR IN
REVERSING THE CONVICTION OF APPELLANT GARRISON, BASED AS IT IS PURELY
ON HIS PUBLIC DISCUSSION AND CRITICISM OF PUBLIC OFFICIALS.  I BELIEVE
THAT THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH, PROTECTS EVERY PERSON FROM HAVING A STATE OR THE FEDERAL
GOVERNMENT FINE, IMPRISON, OR ASSESS DAMAGES AGAINST HIM WHEN HE HAS
BEEN GUILTY OF NO CONDUCT, SEE GIBONEY V. EMPIRE STORAGE & ICE CO., 336
U.S. 490, 498, OTHER THAN EXPRESSING AN OPINION, EVEN THOUGH OTHERS MAY
BELIEVE THAT HIS VIEWS ARE UNWHOLESOME, UNPATRIOTIC, STUPID OR
DANGEROUS.  I BELIEVE THAT THE COURT IS MISTAKEN IF IT THINKS THAT
REQUIRING PROOF THAT STATEMENTS WERE "MALICIOUS" OR "DEFAMATORY" WILL
REALLY CREATE ANY SUBSTANTIAL HURDLE TO BLOCK PUBLIC OFFICIALS FROM
PUNISHING THOSE WHO CRITICIZE THE WAY THEY CONDUCT THEIR OFFICE. 
INDEED, "MALICIOUS," "SEDITIOUS," AND OTHER SUCH EVIL-SOUNDING WORDS
OFTEN HAVE BEEN INVOKED TO PUNISH PEOPLE FOR EXPRESSING THEIR VIEWS ON
PUBLIC AFFAIRS.  FINING MEN OR SENDING THEM TO JAIL FOR CRITICIZING
PUBLIC OFFICIALS NOT ONLY JEOPARDIZES THE FREE, OPEN PUBLIC DISCUSSION
WHICH OUR CONSTITUTION GUARANTEES, BUT CAN WHOLLY STIFLE IT.  I WOULD
HOLD NOW AND NOT WAIT TO HOLD LATER, COMPARE BETTS V. BRADY, 316 U.S.
455, OVERRULED IN GIDEON V. WAINWRIGHT, 372 U.S. 335, THAT UNDER OUR
CONSTITUTION THERE IS ABSOLUTELY NO PLACE IN THIS COUNTRY FOR THE OLD,
DISCREDITED ENGLISH STAR CHAMBER LAW OF SEDITIOUS CRIMINAL LIBEL. 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 

I AM IN HEARTY AGREEMENT WITH THE CONCLUSION OF THE COURT THAT THIS
PROSECUTION FOR A SEDITIOUS LIBEL WAS UNCONSTITUTIONAL.  YET I FEEL
THAT THE GLOSS WHICH THE COURT HAS PUT ON "THE FREEDOM OF SPEECH" IN
THE FIRST AMENDMENT TO REACH THAT RESULT (AND LIKE RESULTS IN OTHER
CASES) MAKES THAT BASIC GUARANTEE ALMOST UNRECOGNIZABLE.  (FN1) 

RECENTLY IN NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, A MAJORITY
OF THE COURT HELD THAT CRITICISM OF AN OFFICIAL FOR OFFICIAL CONDUCT
WAS PROTECTED FROM STATE CIVIL LIBEL LAWS BY THE FIRST AND FOURTEENTH
AMENDMENTS, UNLESS THERE WAS PROOF OF ACTUAL MALICE.  ID., AT 279.  WE
NOW HOLD THAT PROOF OF ACTUAL MALICE IS RELEVANT TO SEDITIOUS LIBEL -
THAT SEDITIOUS LIBEL WILL LIE FOR A KNOWINGLY FALSE STATEMENT OR ONE
MADE WITH RECKLESS DISREGARD OF THE TRUTH. 

IF MALICE IS ALL THAT IS NEEDED, INFERENCES FROM FACTS AS FOUND BY
THE JURY WILL EASILY OBLIGE.  HOW CAN WE SIT IN REVIEW ON A COLD RECORD
AND FIND NO EVIDENCE OF MALICE (CF. NEW YORK TIMES CO. V. SULLIVAN, 376
U.S., AT 285-288) WHEN IT IS THE COMMONPLACE OF LIFE THAT HEAT AND
PASSION SUBTLY TURN TO MALICE IN ACTUAL FACT?  IF "RECKLESS DISREGARD
OF THE TRUTH" IS THE BASIS OF SEDITIOUS LIBEL, THAT NEBULOUS STANDARD
COULD BE EASILY MET.  THE PRESENCE OF "ACTUAL MALICE" IS MADE CRITICAL
IN SEDITIOUS LIBEL, AS WELL AS IN CIVIL ACTIONS INVOLVING CHARGES
AGAINST PUBLIC OFFICIALS, WHEN IN TRUTH THERE IS NOTHING IN THE
CONSTITUTION ABOUT IT, ANY MORE THAN THERE IS ABOUT "CLEAR AND PRESENT
DANGER." 

WHILE THE FIRST AMENDMENT REMAINS THE SAME, THE GLOSS WHICH THE COURT
HAS WRITTEN ON IT IN THIS FIELD OF THE DISCUSSION OF PUBLIC ISSUES ROBS
IT OF MUCH VITALITY. 

WHY DOES "THE FREEDOM OF SPEECH" THAT THE COURT IS WILLING TO PROTECT
TURN OUT TO BE SO PALE AND TAME? 

IT IS BECAUSE, AS MY BROTHER BLACK HAS SAID, (FN2) THE BILL OF RIGHTS
IS CONSTANTLY WATERED DOWN THROUGH JUDICIAL "BALANCING" OF WHAT THE
CONSTITUTION SAYS AND WHAT JUDGES THINK IS NEEDED FOR A WELL-ORDERED
SOCIETY. 

AS IRVING BRANT RECENTLY SAID:  "THE BALANCING TEST DEVELOPED IN
RECENT YEARS BY OUR SUPREME COURT DOES NOT DISARM THE GOVERNMENT OF
POWER TO TRENCH UPON THE FIELD IN WHICH THE CONSTITUTION SAYS 'CONGRESS
SHALL MAKE NO LAW.'  THE BALANCING TEST DOES EXACTLY WHAT IS DONE BY
ITS SPIRITUAL PARENT, THE BRITISH 'COMMON LAW OF SEDITIOUS LIBEL,'
UNDER WHICH (TO REPEAT THE WORDS OF MAY), 'EVERY ONE WAS A LIBELER WHO
OUTRAGED THE SENTIMENTS OF THE DOMINANT PARTY.'"  SEDITIOUS LIBEL:
MYTH AND REALITY, 39 N.Y.U.L. REV. 1, 18-19 (1964). 

BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, A CASE DECIDED BY THE
NARROWEST OF MARGINS, SHOULD BE OVERRULED AS A MISFIT IN OUR
CONSTITUTIONAL SYSTEM AND AS OUT OF LINE WITH THE DICTATES OF THE FIRST
AMENDMENT.  I THINK IT IS TIME TO FACE THE FACT THAT THE ONLY LINE
DRAWN BY THE CONSTITUTION IS BETWEEN "SPEECH" ON THE ONE SIDE AND
CONDUCT OR OVERT ACTS ON THE OTHER.  THE TWO OFTEN DO BLEND.  I HAVE
EXPRESSED THE IDEA BEFORE:  "FREEDOM OF EXPRESSION CAN BE SUPPRESSED
IF, AND TO THE EXTENT THAT, IT IS SO CLOSELY BRIGADED WITH ILLEGAL
ACTION AS TO BE AN INSEPARABLE PART OF IT."  ROTH V. UNITED STATES, 354
U.S., AT 514 (DISSENTING OPINION).  UNLESS SPEECH IS SO BRIGADED WITH
OVERT ACTS OF THAT KIND THERE IS NOTHING THAT MAY BE PUNISHED; AND NO
SEMBLANCE OF SUCH A CASE IS MADE OUT HERE. 

I THINK LITTLE NEED BE ADDED TO WHAT MR. JUSTICE HOLMES SAID NEARLY A
HALF CENTURY AGO: 

"I WHOLLY DISAGREE WITH THE ARGUMENT OF THE GOVERNMENT THAT THE FIRST
AMENDMENT LEFT THE COMMON LAW AS TO SEDITIOUS LIBEL IN FORCE.  HISTORY
SEEMS TO ME AGAINST THE NOTION.  I HAD CONCEIVED THAT THE UNITED STATES
THROUGH MANY YEARS HAD SHOWN ITS REPENTANCE FOR THE SEDITION ACT OF
1798, (FN3) BY REPAYING FINES THAT IT IMPOSED."  ABRAMS V. UNITED
STATES, 250 U.S. 616, 630 (DISSENTING OPINION). 

THE PHILOSOPHY OF THE SEDITION ACT OF 1798 WHICH PUNISHED "FALSE,
SCANDALOUS AND MALICIOUS" WRITINGS (1 STAT. 596) IS TODAY ALLOWED TO BE
APPLIED BY THE STATES.  YET IRVING BRANT HAS SHOWN THAT SEDITIOUS LIBEL
WAS "ENTIRELY THE CREATION OF THE STAR CHAMBER."  (FN4)  IT IS
DISQUIETING TO KNOW THAT ONE OF ITS INSTRUMENTS OF DESTRUCTION IS
ABROAD IN THE LAND TODAY. 

FN1  THE CONSTITUTION SAYS IN THE FIRST AMENDMENT THAT "CONGRESS
SHALL MAKE NO LAW  ...  ABRIDGING THE FREEDOM OF SPEECH"; AND THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PUTS THE STATES UNDER THE
SAME RESTRAINT.  THERE IS ONE SCHOOL OF THOUGHT, SO FAR IN THE
MINORITY, WHICH HOLDS THAT THE DUE PROCESS FREEDOM OF SPEECH HONORED BY
THE FOURTEENTH AMENDMENT IS A WATERED-DOWN VERSION OF THE FIRST
AMENDMENT FREEDOM OF SPEECH.  SEE MY BROTHER HARLAN IN ROTH V. UNITED
STATES, 354 U.S. 476, 500-503.  WHILE THAT VIEW HAS NEVER OBTAINED, THE
CONSTRUCTION WHICH THE MAJORITY HAS GIVEN THE FIRST AMENDMENT HAS BEEN
BURDENED WITH SOMEWHAT THE SAME KIND OF QUALIFICATIONS AND CONDITIONS. 

FN2  THE BILL OF RIGHTS AND THE FEDERAL GOVERNMENT, IN THE GREAT
RIGHTS, P. 60 (CAHN ED.  1963): 

"IN REALITY THIS BALANCING APPROACH RETURNS US TO THE STATE OF
LEGISLATIVE SUPREMACY WHICH EXISTED IN ENGLAND AND WHICH THE FRAMERS
WERE SO DETERMINED TO CHANGE ONCE AND FOR ALL.  ON THE ONE HAND, IT
DENIES THE JUDICIARY ITS CONSTITUTIONAL POWER TO MEASURE ACTS OF
CONGRESS BY THE STANDARDS SET DOWN IN THE BILL OF RIGHTS.  ON THE OTHER
HAND, THOUGH APPARENTLY REDUCING JUDICIAL POWERS BY SAYING THAT ACTS OF
CONGRESS MAY BE HELD UNCONSTITUTIONAL ONLY WHEN THEY ARE FOUND TO HAVE
NO RATIONAL LEGISLATIVE BASIS, THIS APPROACH REALLY GIVES THE COURT,
ALONG WITH CONGRESS, A GREATER POWER, THAT OF OVERRIDING THE PLAIN
COMMANDS OF THE BILL OF RIGHTS ON A FINDING OF WEIGHTY PUBLIC
INTEREST.  IN EFFECT, IT CHANGES THE DIRECTION OF OUR FORM OF
GOVERNMENT FROM A GOVERNMENT OF LIMITED POWERS TO A GOVERNMENT IN WHICH
CONGRESS MAY DO ANYTHING THAT COURTS BELIEVE TO BE 'REASONABLE.'" 

FN3  MADISON'S VIEWS ON THE SEDITION ACT - A FEDERAL ENACTMENT - ARE
RELEVANT HERE, NOW THAT THE FIRST AMENDMENT IS APPLICABLE TO THE
STATES.  I HAVE THEREFORE APPENDED HIS VIEWS AS AN APPENDIX. 

FN4  39 N.Y.U.L. REV. 1, 11.  "WHAT IS CALLED TODAY THE COMMON-LAW
DOCTRINE OF SEDITIOUS LIBEL IS IN FACT THE CREATION OF THE COURT OF
STAR CHAMBER, THE MOST INIQUITOUS TRIBUNAL IN ENGLISH HISTORY.  IT HAS
BEEN INFECTED INTO THE COMMON LAW SOLELY BY THE FIAT OF COKE AND BY
SUBSEQUENT DECISIONS AND OPINIONS OF ENGLISH JUDGES WHO PERPETUATED THE
VICIOUS PROCEDURES BY WHICH THE STAR CHAMBER STIFLED CRITICISM OF THE
GOVERNMENT AND FREEDOM OF POLITICAL OPINION.  IF SEDITIOUS LIBEL HAS
ANY GENUINE COMMON-LAW AFFILIATION, IT IS BY ILLEGITIMATE DESCENT FROM
CONSTRUCTIVE TREASON AND HERESY, BOTH OF WHICH ARE TOTALLY REPUGNANT TO
THE CONSTITUTION OF THE UNITED STATES."  BRANT, SUPRA, AT 5. 

   APPENDIX TO OPINION OF MR. JUSTICE

                DOUGLAS, CONCURRING. 

EXCERPT FROM MADISON'S ADDRESS, JANUARY 23, 1799: 

"THE SEDITION ACT PRESENTS A SCENE WHICH WAS NEVER EXPECTED BY THE
EARLY FRIENDS OF THE CONSTITUTION.  IT WAS THEN ADMITTED THAT THE STATE
SOVEREIGNTIES WERE ONLY DIMINISHED BY POWERS SPECIFICALLY ENUMERATED,
OR NECESSARY TO CARRY THE SPECIFIED POWERS INTO EFFECT.  NOW, FEDERAL
AUTHORITY IS DEDUCED FROM IMPLICATION; AND FROM THE EXISTENCE OF STATE
LAW, IT IS INFERRED THAT CONGRESS POSSESS A SIMILAR POWER OF
LEGISLATION; WHENCE CONGRESS WILL BE ENDOWED WITH A POWER OF
LEGISLATION IN ALL CASES WHATSOEVER, AND THE STATES WILL BE STRIPPED OF
EVERY RIGHT RESERVED, BY THE CONCURRENT CLAIMS OF A PARAMOUNT
LEGISLATURE. 

"THE SEDITION ACT IS THE OFFSPRING OF THESE TREMENDOUS PRETENSIONS,
WHICH INFLICT A DEATH-WOUND ON THE SOVEREIGNTY OF THE STATES. 

"FOR THE HONOR OF AMERICAN UNDERSTANDING, WE WILL NOT BELIEVE THAT
THE PEOPLE HAVE BEEN ALLURED INTO THE ADOPTION OF THE CONSTITUTION BY
AN AFFECTATION OF DEFINING POWERS, WHILST THE PREAMBLE WOULD ADMIT A
CONSTRUCTION WHICH WOULD ERECT THE WILL OF CONGRESS INTO A POWER
PARAMOUNT IN ALL CASES, AND THEREFORE LIMITED IN NONE.  ON THE
CONTRARY, IT IS EVIDENT THAT THE OBJECTS FOR WHICH THE CONSTITUTION WAS
FORMED WERE DEEMED ATTAINABLE ONLY BY A PARTICULAR ENUMERATION AND
SPECIFICATION OF EACH POWER GRANTED TO THE FEDERAL GOVERNMENT;
RESERVING ALL OTHERS TO THE PEOPLE, OR TO THE STATES.  AND YET IT IS IN
VAIN WE SEARCH FOR ANY SPECIFIED POWER EMBRACING THE RIGHT OF
LEGISLATION AGAINST THE FREEDOM OF THE PRESS. 

"HAD THE STATES BEEN DESPOILED OF THEIR SOVEREIGNTY BY THE GENERALITY
OF THE PREAMBLE, AND HAD THE FEDERAL GOVERNMENT BEEN ENDOWED WITH
WHATEVER THEY SHOULD JUDGE TO BE INSTRUMENTAL TOWARDS UNION, JUSTICE,
TRANQUILLITY, COMMON DEFENCE, GENERAL WELFARE, AND THE PRESERVATION OF
LIBERTY, NOTHING COULD HAVE BEEN MORE FRIVOLOUS THAN AN ENUMERATION OF
POWERS.    "IT IS VICIOUS IN THE EXTREME TO CALUMNIATE MERITORIOUS
PUBLIC SERVANTS; BUT IT IS BOTH ARTFUL AND VICIOUS TO AROUSE THE PUBLIC
INDIGNATION AGAINST CALUMNY IN ORDER TO CONCEAL USURPATION.  CALUMNY IS
FORBIDDEN BY THE LAWS, USURPATION BY THE CONSTITUTION.  CALUMNY INJURES
INDIVIDUALS, USURPATION, STATES.  CALUMNY MAY BE REDRESSED BY THE
COMMON JUDICATURES; USURPATION CAN ONLY BE CONTROLLED BY THE ACT OF
SOCIETY.  OUGHT USURPATION, WHICH IS MOST MISCHIEVOUS, TO BE RENDERED
LESS HATEFUL BY CALUMNY, WHICH, THOUGH INJURIOUS, IS IN A DEGREE LESS
PERNICIOUS?  BUT THE LAWS FOR THE CORRECTION OF CALUMNY WERE NOT
DEFECTIVE.  EVERY LIBELLOUS WRITING OR EXPRESSION MIGHT RECEIVE ITS
PUNISHMENT IN THE STATE COURTS, FROM JURIES SUMMONED BY AN OFFICER, WHO
DOES NOT RECEIVE HIS APPOINTMENT FROM THE PRESIDENT, AND IS UNDER NO
INFLUENCE TO COURT THE PLEASURE OF GOVERNMENT, WHETHER IT INJURED
PUBLIC OFFICERS OR PRIVATE CITIZENS.  NOR IS THERE ANY DISTINCTION IN
THE CONSTITUTION EMPOWERING CONGRESS EXCLUSIVELY TO PUNISH CALUMNY
DIRECTED AGAINST AN OFFICER OF THE GENERAL GOVERNMENT; SO THAT A
CONSTRUCTION ASSUMING THE POWER OF PROTECTING THE REPUTATION OF A
CITIZEN OFFICER WILL EXTEND TO THE CASE OF ANY OTHER CITIZEN, AND OPEN
TO CONGRESS A RIGHT OF LEGISLATION IN EVERY CONCEIVABLE CASE WHICH CAN
ARISE BETWEEN INDIVIDUALS. 

"IN ANSWER TO THIS, IT IS URGED THAT EVERY GOVERNMENT POSSESSES AN
INHERENT POWER OF SELF-PRESERVATION, ENTITLING IT TO DO WHATEVER IT
SHALL JUDGE NECESSARY FOR THAT PURPOSE. 

"THIS IS A REPETITION OF THE DOCTRINE OF IMPLICATION AND EXPEDIENCY
IN DIFFERENT LANGUAGE, AND ADMITS OF A SIMILAR AND DECISIVE ANSWER,
NAMELY, THAT AS THE POWERS OF CONGRESS ARE DEFINED, POWERS INHERENT,
IMPLIED, OR EXPEDIENT, ARE OBVIOUSLY THE CREATURES OF AMBITION; BECAUSE
THE CARE EXPENDED IN DEFINING POWERS WOULD OTHERWISE HAVE BEEN
SUPERFLUOUS.  POWERS EXTRACTED FROM SUCH SOURCES WILL BE INDEFINITELY
MULTIPLIED BY THE AID OF ARMIES AND PATRONAGE, WHICH, WITH THE
IMPOSSIBILITY OF CONTROLLING THEM BY ANY DEMARCATION, WOULD PRESENTLY
TERMINATE REASONING, AND ULTIMATELY SWALLOW UP THE STATE
SOVEREIGNTIES. 

"SO INSATIABLE IS THE LOVE OF POWER THAT IT HAS RESORTED TO A
DISTINCTION BETWEEN THE FREEDOM AND LICENTIOUSNESS OF THE PRESS FOR THE
PURPOSE OF CONVERTING THE THIRD AMENDMENT* OF THE CONSTITUTION, WHICH
WAS DICTATED BY THE MOST LIVELY ANXIETY TO PRESERVE THAT FREEDOM, INTO
AN INSTRUMENT FOR ABRIDGING IT.  THUS USURPATION EVEN JUSTIFIES ITSELF
BY A PRECAUTION AGAINST USURPATION; AND THUS AN AMENDMENT UNIVERSALLY
DESIGNED TO QUIET EVERY FEAR IS ADDUCED AS THE SOURCE OF AN ACT WHICH
HAS PRODUCED GENERAL TERROR AND ALARM. 

*THE FIRST AMENDMENT WAS ARTICLE THIRD IN THOSE SUBMITTED BY CONGRESS
TO THE STATES ON SEPTEMBER 25, 1789. 

"THE DISTINCTION BETWEEN LIBERTY AND LICENTIOUSNESS IS STILL A
REPETITION OF THE PROTEAN DOCTRINE OF IMPLICATION, WHICH IS EVER READY
TO WORK ITS ENDS BY VARYING ITS SHAPE.  BY ITS HELP, THE JUDGE AS TO
WHAT IS LICENTIOUS MAY ESCAPE THROUGH ANY CONSTITUTIONAL RESTRICTION. 
UNDER IT MEN OF A PARTICULAR RELIGIOUS OPINION MIGHT BE EXCLUDED FROM
OFFICE, BECAUSE SUCH EXCLUSION WOULD NOT AMOUNT TO AN ESTABLISHMENT OF
RELIGION, AND BECAUSE IT MIGHT BE SAID THAT THEIR OPINIONS ARE
LICENTIOUS.  AND UNDER IT CONGRESS M]GHT DENOMINATE A RELIGION TO BE
HERETICAL AND LICENTIOUS, AND PROCEED TO ITS SUPPRESSION.  REMEMBER
THAT PRECEDENTS ONCE ESTABLISHED ARE SO MUCH POSITIVE POWER; AND THAT
THE NATION WHICH REPOSES ON THE PILLOW OF POLITICAL CONFIDENCE, WILL
SOONER OR LATER END ITS POLITICAL EXISTENCE IN A DEADLY LETHARGY. 
REMEMBER, ALSO, THAT IT IS TO THE PRESS MANKIND ARE INDEBTED FOR HAVING
DISPELLED THE CLOUDS WHICH LONG ENCOMPASSED RELIGION, FOR DISCLOSING
HER GENUINE LUSTRE, AND DISSEMINATING HER SALUTARY DOCTRINES. 

"THE SOPHISTRY OF A DISTINCTION BETWEEN THE LIBERTY AND THE
LICENTIOUSNESS OF THE PRESS IS SO FORCIBLY EXPOSED IN A LATE MEMORIAL
FROM OUR LATE ENVOYS TO THE MINISTER OF THE FRENCH REPUBLIC, THAT WE
HERE PRESENT IT TO YOU IN THEIR OWN WORDS: 

"'THE GENIOUS OF THE CONSTITUTION, AND THE OPINION OF THE PEOPLE OF
THE UNITED STATES, CANNOT BE OVERRULED BY THOSE WHO ADMINISTER THE
GOVERNMENT.  AMONG THOSE PRINCIPLES DEEMED SACRED IN AMERICA, AMONG
THOSE SACRED RIGHTS CONSIDERED AS FORMING THE BULWARK OF THEIR LIBERTY,
WHICH THE GOVERNMENT CONTEMPLATES WITH AWFUL REVERENCE AND WOULD
APPROACH ONLY WITH THE MOST CAUTIOUS CIRCUMSPECTION, THERE IS NO ONE OF
WHICH THE IMPORTANCE IS MORE DEEPLY IMPRESSED ON THE PUBLIC MIND THAN
THE LIBERTY OF THE PRESS.  THAT THIS LIBERTY IS OFTEN CARRIED TO
EXCESS; THAT IT HAS SOMETIMES DEGENERATED INTO LICENTIOUSNESS, IS SEEN
AND LAMENTED, BUT THE REMEDY HAS NOT YET BEEN DISCOVERED.  PERHAPS IT
IS AN EVIL INSEPARABLE FROM THE GOOD WITH WHICH IT IS ALLIED; PERHAPS
IT IS A SHOOT WHICH CANNOT BE STRIPPED FROM THE STALK WITHOUT WOUNDING
VITALLY THE PLANT FROM WHICH IT IS TORN.  HOWEVER DESIRABLE THOSE
MEASURES MIGHT BE WHICH MIGHT CORRECT WITHOUT ENSLAVING THE PRESS, THEY
HAVE NEVER YET BEEN DEVISED IN AMERICA.  NO REGULATIONS EXIST WHICH
ENABLE THE GOVERNMENT TO SUPPRESS WHATEVER CALUMNIES OR INVECTIVES ANY
INDIVIDUAL MAY CHOOSE TO OFFER TO THE PUBLIC EYE, OR TO PUNISH SUCH
CALUMNIES AND INVECTIVES OTHERWISE THAN BY A LEGAL PROSECUTION IN
COURTS WHICH ARE ALIKE OPEN TO ALL WHO CONSIDER THEMSELVES AS
INJURED.' 

"AS IF WE WERE BOUND TO LOOK FOR SECURITY FROM THE PERSONAL PROBITY
OF CONGRESS AMIDST THE FRAILTIES OF MAN, AND NOT FROM THE BARRIERS OF
THE CONSTITUTION, IT HAS BEEN URGED THAT THE ACCUSED UNDER THE SEDITION
ACT IS ALLOWED TO PROVE THE TRUTH OF THE CHARGE.  THIS ARGUMENT WILL
NOT FOR A MOMENT DISGUISE THE UNCONSTITUTIONALITY OF THE ACT, IF IT BE
RECOLLECTED THAT OPINIONS AS WELL AS FACTS ARE MADE PUNISHABLE, AND
THAT THE TRUTH OF AN OPINION IS NOT SUSCEPTIBLE OF PROOF.  BY
SUBJECTING THE TRUTH OF OPINION TO THE REGULATION, FINE, AND
IMPRISONMENT, TO BE INFLICTED BY THOSE WHO ARE OF A DIFFERENT OPINION,
THE FREE RANGE OF THE HUMAN MIND IS INJURIOUSLY RESTRAINED.  THE SACRED
OBLIGATIONS OF RELIGION FLOW FROM THE DUE EXERCISE OF OPINION, IN THE
SOLEMN DISCHARGE OF WHICH MAN IS ACCOUNTABLE TO HIS GOD ALONE; YET,
UNDER THIS PRECEDENT THE TRUTH OF RELIGION ITSELF MAY BE ASCERTAINED,
AND ITS PRETENDED LICENTIOUSNESS PUNISHED BY A JURY OF A DIFFERENT
CREED FROM THAT HELD BY THE PERSON ACCUSED.  THIS LAW, THEN, COMMITS
THE DOUBLE SACRILEGE OF ARRESTING REASON IN HER PROGRESS TOWARDS
PERFECTION, AND OF PLACING IN A STATE OF DANGER THE FREE EXERCISE OF
RELIGIOUS OPINIONS.  BUT WHERE DOES THE CONSTITUTION ALLOW CONGRESS TO
CREATE CRIMES AND INFLICT PUNISHMENT, PROVIDED THEY ALLOW THE ACCUSED
TO EXHIBIT EVIDENCE IN HIS DEFENSE?  THIS DOCTRINE, UNITED WITH THE
ASSERTION, THAT SEDITION IS A COMMON LAW OFFENCE, AND THEREFORE WITHIN
THE CORRECTING POWER OF CONGRESS, OPENS AT ONCE THE HIDEOUS VOLUMES OF
PENAL LAW, AND TURNS LOOSE UPON US THE UTMOST INVENTION OF INSATIABLE
MALICE AND AMBITION, WHICH, IN ALL AGES, HAVE DEBAUCHED MORALS,
DEPRESSED LIBERTY, SHACKLED RELIGION, SUPPORTED DESPOTISM, AND DELUGED
THE SCAFFOLD WITH BLOOD."  VI WRITINGS OF JAMES MADISON, 1790-1802, PP.
333-337 (HUNT ED. 1906). 

MR. JUSTICE GOLDBERG, CONCURRING. 

I AGREE WITH THE COURT THAT THERE IS "NO DIFFICULTY IN BRINGING THE
APPELLANT'S STATEMENT WITHIN THE PURVIEW OF CRITICISM OF THE OFFICIAL
CONDUCT OF PUBLIC OFFICIALS  ...  ."  ANTE, AT 76.  IN NEW YORK TIMES
CO. V. SULLIVAN, 376 U.S. 254, 297, I EXPRESSED MY CONVICTION "THAT THE
CONSTITUTION ACCORDS CITIZENS AND PRESS AN UNCONDITIONAL FREEDOM TO
CRITICIZE OFFICIAL CONDUCT."  ID., AT 305.  NEW YORK TIMES WAS A CIVIL
LIBEL CASE; THIS IS A CRIMINAL LIBEL PROSECUTION.  IN MY VIEW, "IF THE
RULE THAT LIBEL ON GOVERNMENT HAS NO PLACE IN OUR CONSTITUTION IS TO
HAVE REAL MEANING, THEN LIBEL (CRIMINAL OR CIVIL) ON THE OFFICIAL
CONDUCT OF THE GOVERNORS LIKEWISE CAN HAVE NO PLACE IN OUR
CONSTITUTION."  ID., AT 299. 
..END :



BECK V. OHIO 379 U.S. 89 


NO. 18.  ARGUED OCTOBER 15, 1964.  - DECIDED NOVEMBER 23, 1964.  - 175
OHIO ST. 73, 191 N.E.2D 825, REVERSED. 


POLICE OFFICERS, WHO HAD RECEIVED UNSPECIFIED "INFORMATION" AND
"REPORTS" ABOUT PETITIONER, WHO KNEW WHAT HE LOOKED LIKE, AND THAT HE
HAD A GAMBLING RECORD, STOPPED PETITIONER WHO WAS DRIVING AN
AUTOMOBILE.  PLACING HIM UNDER ARREST, THEY SEARCHED HIS CAR, THOUGH
THEY HAD NO ARREST OR SEARCH WARRANT.  THEY FOUND NOTHING OF INTEREST. 
THEY TOOK HIM TO A POLICE STATION, WHERE THEY FOUND SOME CLEARING HOUSE
SLIPS ON HIS PERSON, FOR THE POSSESSION OF WHICH HE WAS SUBSEQUENTLY
TRIED.  HIS MOTION TO SUPPRESS THE SLIPS AS SEIZED IN VIOLATION OF THE
FOURTH AND FOURTEENTH AMENDMENTS WAS OVERRULED, THE SLIPS WERE ADMITTED
INTO EVIDENCE, AND HE WAS CONVICTED, HIS CONVICTION BEING ULTIMATELY
SUSTAINED ON APPEAL BY THE SUPREME COURT OF OHIO, WHICH FOUND THE
SEARCH VALID AS INCIDENT TO A LAWFUL ARREST.  HELD:  NO PROBABLE CAUSE
FOR PETITIONER'S ARREST HAVING BEEN SHOWN, THE ARREST, AND THEREFORE
NECESSARILY THE SEARCH FOR AND SEIZURE OF THE SLIPS INCIDENT THERETO,
WERE INVALID UNDER THE FOURTH AND FOURTEENTH AMENDMENTS.  PP. 91-97. 

BECK V. OHIO. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON THE AFTERNOON OF NOVEMBER 10, 1961, THE PETITIONER, WILLIAM BECK,
WAS DRIVING HIS AUTOMOBILE IN THE VICINITY OF EAST 115TH STREET AND
BEULAH AVENUE IN CLEVELAND, OHIO.  CLEVELAND POLICE OFFICERS ACCOSTED
HIM, IDENTIFIED THEMSELVES, AND ORDERED HIM TO PULL OVER TO THE CURB. 
THE OFFICERS POSSESSED NEITHER AN ARREST WARRANT NOR A SEARCH WARRANT. 
PLACING HIM UNDER ARREST, THEY SEARCHED HIS CAR BUT FOUND NOTHING OF
INTEREST.  THEY THEN TOOK HIM TO A NEARBY POLICY STATION WHERE THEY
SEARCHED HIS PERSON AND FOUND AN ENVELOPE CONTAINING A NUMBER OF
CLEARING HOUSE SLIPS "BENEATH THE SOCK OF HIS LEG."  THE PETITIONER WAS
SUBSEQUENTLY CHARGED IN THE CLEVELAND MUNICIPAL COURT WITH POSSESSION
OF CLEARING HOUSE SLIPS IN VIOLATION OF A STATE CRIMINAL STATUTE. 
(FN1)  HE FILED A MOTION TO SUPPRESS AS EVIDENCE THE CLEARING HOUSE
SLIPS IN QUESTION, UPON THE GROUND THAT THE POLICE HAD OBTAINED THEM BY
MEANS OF AN UNREASONABLE SEARCH AND SEIZURE IN VIOLATION OF THE FOURTH
AND FOURTEENTH AMENDMENTS.  AFTER A HEARING THE MOTION WAS OVERRULED,
THE CLEARING HOUSE SLIPS WERE ADMITTED IN EVIDENCE, AND THE PETITIONER
WAS CONVICTED.  HIS CONVICTION WAS AFFIRMED BY AN OHIO COURT OF
APPEALS, AND ULTIMATELY BY THE SUPREME COURT OF OHIO, WITH TWO JUDGES
DISSENTING.  175 OHIO ST. 73, 191 N.E.2D 825.  WE GRANTED CERTIORARI TO
CONSIDER THE PETITIONER'S CLAIM THAT, UNDER THE RULE OF MAPP V. OHIO,
367 U.S. 643, THE CLEARING HOUSE SLIPS WERE WRONGLY ADMITTED IN
EVIDENCE AGAINST HIM BECAUSE THEY HAD BEEN SEIZED BY THE CLEVELAND
POLICE IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS.  376 U.S.
905. 

ALTHOUGH THE POLICE OFFICERS DID NOT OBTAIN A WARRANT BEFORE
ARRESTING THE PETITIONER AND SEARCHING HIS AUTOMOBILE AND HIS PERSON,
THE SUPREME COURT OF OHIO FOUND THE SEARCH NONETHELESS CONSTITUTIONALLY
VALID AS A SEARCH INCIDENT TO A LAWFUL ARREST.  AND IT IS UPON THAT
BASIS THAT THE OHIO DECISION HAS BEEN SUPPORTED BY THE RESPONDENT
HERE.  SEE DRAPER V. UNITED STATES, 358 U.S. 307; KER V. CALIFORNIA,
374 U.S. 23. 

THERE ARE LIMITS TO THE PERMISSIBLE SCOPE OF A WARRANTLESS SEARCH
INCIDENT TO A LAWFUL ARREST, BUT WE PROCEED ON THE PREMISE THAT, IF THE
ARREST ITSELF WAS LAWFUL, THOSE LIMITS WERE NOT EXCEEDED HERE.  SEE
HARRIS V. UNITED STATES, 331 U.S. 145; UNITED STATES V. RABINOWITZ, 339
U.S. 56; CF. PRESTON V. UNITED STATES, 376 U.S. 364.  THE
CONSTITUTIONAL VALIDITY OF THE SEARCH IN THIS CASE, THEN, MUST DEPEND
UPON THE CONSTITUTIONAL VALIDITY OF THE PETITIONER'S ARREST.  WHETHER
THAT ARREST WAS CONSTITUTIONALLY VALID DEPENDS IN TURN UPON WHETHER, AT
THE MOMENT THE ARREST WAS MADE, THE OFFICERS HAD PROBABLE CAUSE TO MAKE
IT - WHETHER AT THAT MOMENT THE FACTS AND CIRCUMSTANCES WITHIN THEIR
KNOWLEDGE AND OF WHICH THEY HAD REASONABLY TRUSTWORTHY INFORMATION WERE
SUFFICIENT TO WARRANT A PRUDENT MAN IN BELIEVING THAT THE PETITIONER
HAD COMMITTED OR WAS COMMITTING AN OFFENSE.  BRINEGAR V. UNITED STATES,
338 U.S. 160, 175-176; HENRY V. UNITED STATES, 361 U.S. 98, 102.  "THE
RULE OF PROBABLE CAUSE IS A PRACTICAL, NONTECHNICAL CONCEPTION
AFFORDING THE BEST COMPROMISE THAT HAS BEEN FOUND FOR ACCOMMODATING
...  OFTEN OPPOSING INTERESTS.  REQUIRING MORE WOULD UNDULY HAMPER LAW
ENFORCEMENT.  TO ALLOW LESS WOULD BE TO LEAVE LAW-ABIDING CITIZENS AT
THE MERCY OF THE OFFICERS' WHIM OR CAPRICE."  BRINEGAR V. UNITED
STATES, SUPRA, AT 176. 

IN TURNING TO THE QUESTION OF WHETHER OR NOT THE RECORD IN THE CASE
BEFORE US CAN SUPPORT A FINDING OF PROBABLE CAUSE FOR THE PETITIONER'S
ARREST, IT MAY BE WELL TO REPEAT WHAT WAS SAID BY MR. JUSTICE CLARK,
SPEAKING FOR EIGHT MEMBERS OF THE COURT, IN KER V. CALIFORNIA:

"WHILE THIS COURT DOES NOT SIT AS IN NISI PRIUS TO APPRAISE
CONTRADICTORY FACTUAL QUESTIONS, IT WILL, WHERE NECESSARY TO THE
DETERMINATION OF CONSTITUTIONAL RIGHTS, MAKE AN INDEPENDENT EXAMINATION
OF THE FACTS, THE FINDINGS, AND THE RECORD SO THAT IT CAN DETERMINE FOR
ITSELF WHETHER IN THE DECISION AS TO REASONABLENESS THE FUNDAMENTAL -
I.E., CONSTITUTIONAL - CRITERIA ESTABLISHED BY THIS COURT HAVE BEEN
RESPECTED.  THE STATES ARE NOT THEREBY PRECLUDED FROM DEVELOPING
WORKABLE RULES GOVERNING ARRESTS, SEARCHES AND SEIZURES TO MEET 'THE
PRACTICAL DEMANDS OF EFFECTIVE CRIMINAL INVESTIGATION AND LAW
ENFORCEMENT' IN THE STATES, PROVIDED THAT THOSE RULES DO NOT VIOLATE
THE CONSTITUTIONAL PROSCRIPTION OF UNREASONABLE SEARCHES AND SEIZURES
AND THE CONCOMITANT COMMAND THAT EVIDENCE SO SEIZED IS INADMISSIBLE
AGAINST ONE WHO WAS STANDING TO COMPLAIN.  SEE JONES V. UNITED STATES,
362 U.S. 257 (1960).  SUCH A STANDARD IMPLIES NO DEROGATION OF
UNIFORMITY IN APPLYING FEDERAL CONSTITUTIONAL GUARANTEES BUT IS ONLY A
RECOGNITION THAT CONDITIONS AND CIRCUMSTANCES VARY JUST AS DO
INVESTIGATIVE AND ENFORCEMENT TECHNIQUES."  374 U.S. 23, AT 34. 

THE TRIAL COURT MADE NO FINDINGS OF FACT IN THIS CASE.  THE TRIAL
JUDGE SIMPLY MADE A CONCLUSORY STATEMENT:  "A LAWFUL ARREST HAS BEEN
MADE, AND THIS WAS A SEARCH INCIDENTAL TO THAT LAWFUL ARREST."  THE
COURT OF APPEALS MERELY FOUND "NO ERROR PREJUDICIAL TO THE APPELLANT." 
IN THE SUPREME COURT OF OHIO, JUDGE ZIMMERMAN'S OPINION CONTAINED A
NARRATIVE RECITAL WHICH IS ACCURATELY EXCERPTED IN THE DISSENTING
OPINIONS FILED TODAY.  BUT, PUTTING ASIDE THE QUESTION OF WHETHER THIS
OPINION CAN FAIRLY BE CALLED THE OPINION OF THE COURT, (FN2) SUCH A
RECITAL IN AN APPELLATE OPINION IS HARDLY THE EQUIVALENT OF FINDINGS
MADE BY THE TRIER OF THE FACTS.  IN ANY EVENT, AFTER GIVING FULL SCOPE
TO THE FLEXIBILITY DEMANDED BY "A RECOGNITION THAT CONDITIONS AND
CIRCUMSTANCES VARY JUST AS DO INVESTIGATIVE AND ENFORCEMENT
TECHNIQUES," WE HOLD THAT THE ARREST OF THE PETITIONER CANNOT ON THE
RECORD BEFORE US BE SQUARED WITH THE DEMANDS OF THE FOURTH AND
FOURTEENTH AMENDMENTS. 

THE RECORD IS MEAGER, CONSISTING ONLY OF THE TESTIMONY OF ONE OF THE
ARRESTING OFFICERS, GIVEN AT THE HEARING ON THE MOTION TO SUPPRESS.  AS
TO THE OFFICER'S OWN KNOWLEDGE OF THE PETITIONER BEFORE THE ARREST, THE
RECORD SHOWS NO MORE THAN THAT THE OFFICER "HAD A POLICE PICTURE OF HIM
AND KNEW WHAT HE LOOKED LIKE," AND THAT THE OFFICER KNEW THAT THE
PETITIONER HAD "A RECORD IN CONNECTION WITH CLEARING HOUSE AND SCHEME
OF CHANCE."  (FN3)  BEYOND THAT, THE OFFICER TESTIFIED ONLY THAT HE HAD
"INFORMATION" THAT HE HAD "HEARD REPORTS," THAT "SOMEONE SPECIFICALLY
DID RELATE THAT INFORMATION," AND THAT HE "KNEW WHO THAT PERSON WAS." 
THERE IS NOWHERE IN THE RECORD ANY INDICATION OF WHAT "INFORMATION" OR
"REPORTS" THE OFFICER HAD RECEIVED, OR, BEYOND WHAT HAS BEEN SET OUT
ABOVE, FROM WHAT SOURCE THE "INFORMATION" AND "REPORTS" HAD COME.  THE
OFFICER TESTIFIED THAT WHEN HE LEFT THE STATION HOUSE, "I HAD IN MIND
LOOKING FOR THE PETITIONER IN THE AREA OF EAST 115TH STREET AND BEULAH,
STOPPING HIM IF I DID SEE HIM MAKE A STOP IN THAT AREA."  BUT THE
OFFICER TESTIFIED TO NOTHING THAT WOULD INDICATE THAT ANY INFORMER HAD
SAID THAT THE PETITIONER COULD BE FOUND AT THAT TIME AND PLACE.  CF.
DRAPER V. UNITED STATES, 358 U.S. 307.  AND THE RECORD DOES NOT SHOW
THAT THE OFFICERS SAW THE PETITIONER "STOP" BEFORE THEY ARRESTED HIM,
OR THAT THEY SAW, HEARD, SMELLED, OR OTHERWISE PERCEIVED ANYTHING ELSE
TO GIVE THEM GROUND FOR BELIEF THAT THE PETITIONER HAD ACTED OR WAS
THEN ACTING UNLAWFULLY.  (FN4) 

NO DECISION OF THIS COURT HAS UPHELD THE CONSTITUTIONAL VALIDITY OF A
WARRANTLESS ARREST WITH SUPPORT SO SCANT AS THIS RECORD PRESENTS.  THE
RESPONDENT RELIES UPON DRAPER V. UNITED STATES, 358 U.S. 307.  BUT IN
THAT CASE THE RECORD SHOWED THAT A NAMED SPECIAL EMPLOYEE OF NARCOTICS
AGENTS WHO HAD ON NUMEROUS OCCASIONS GIVEN RELIABLE INFORMATION HAD
TOLD THE ARRESTING OFFICER THAT THE DEFENDANT, WHOM HE DESCRIBED
MINUTELY, HAD TAKEN UP RESIDENCE AT A STATED ADDRESS AND WAS SELLING
NARCOTICS TO ADDICTS IN DENVER.  THE INFORMER FURTHER HAD TOLD THE
OFFICER THAT THE DEFENDANT WAS GOING TO CHICAGO TO OBTAIN NARCOTICS AND
WOULD BE RETURNING TO DENVER ON ONE OF TWO TRAINS FROM CHICAGO, WHICH
EVENT IN FACT TOOK PLACE.  IN COMPLETE CONTRAST, THE RECORD IN THIS
CASE DOES NOT CONTAIN A SINGLE OBJECTIVE FACT TO SUPPORT A BELIEF BY
THE OFFICERS THAT THE PETITIONER WAS ENGAGED IN CRIMINAL ACTIVITY AT
THE TIME THEY ARRESTED HIM. 

AN ARREST WITHOUT A WARRANT BYPASSES THE SAFEGUARDS PROVIDED BY AN
OBJECTIVE PREDETERMINATION OF PROBABLE CAUSE, AND SUBSTITUTES INSTEAD
THE FAR LESS RELIABLE PROCEDURE OF AN AFTER-THE-EVENT JUSTIFICATION FOR
THE ARREST OR SEARCH, TOO LIKELY TO BE SUBTLY INFLUENCED BY THE
FAMILIAR SHORTCOMINGS OF HINDSIGHT JUDGMENT.  "WHETHER OR NOT THE
REQUIREMENTS OF RELIABILITY AND PARTICULARITY OF THE INFORMATION ON
WHICH AN OFFICER MAY ACT ARE MORE STRINGENT WHERE AN ARREST WARRANT IS
ABSENT, THEY SURELY CANNOT BE LESS STRINGENT THAN WHERE AN ARREST
WARRANT IS OBTAINED.  OTHERWISE, A PRINCIPAL INCENTIVE NOW EXISTING FOR
THE PROCUREMENT OF ARREST WARRANTS WOULD BE DESTROYED."  WONG SUN V.
UNITED STATES, 371 U.S. 471, 479-480.  YET EVEN IN CASES WHERE WARRANTS
WERE OBTAINED, THE COURT HAS HELD THAT THE CONSTITUTION DEMANDS A
GREATER SHOWING OF PROBABLE CAUSE THAN CAN BE FOUND IN THE PRESENT
RECORD.  AGUILAR V. TEXAS, 378 U.S. 108; GIORDENELLO V. UNITED STATES,
357 U.S. 480; (FN5) NATHANSON V. UNITED STATES, 290 U.S. 41.  (FN6) 

WHEN THE CONSTITUTIONAL VALIDITY OF AN ARREST IS CHALLENGED, IT IS
THE FUNCTION OF A COURT TO DETERMINE WHETHER THE FACTS AVAILABLE TO THE
OFFICERS AT THE MOMENT OF THE ARREST WOULD "WARRANT A MAN OF REASONABLE
CAUTION IN THE BELIEF" THAT AN OFFENSE HAS BEEN COMMITTED.  CARROLL V.
UNITED STATES, 267 U.S. 132, 162.  IF THE COURT IS NOT INFORMED OF THE
FACTS UPON WHICH THE ARRESTING OFFICERS ACTED, IT CANNOT PROPERLY
DISCHARGE THAT FUNCTION.  ALL THAT THE TRIAL COURT WAS TOLD IN THIS
CASE WAS THAT THE OFFICERS KNEW WHAT THE PETITIONER LOOKED LIKE AND
KNEW THAT HE HAD A PREVIOUS RECORD OF ARRESTS OR CONVICTIONS FOR
VIOLATIONS OF THE CLEARING HOUSE LAW.  BEYOND THAT, THE ARRESTING
OFFICER WHO TESTIFIED SAID NO MORE THAN THAT SOMEONE (HE DID NOT SAY
WHO) HAD TOLD HIM SOMETHING (HE DID NOT SAY WHAT) ABOUT THE
PETITIONER.  WE DO NOT HOLD THAT THE OFFICER'S KNOWLEDGE OF THE
PETITIONER'S PHYSICAL APPEARANCE AND PREVIOUS RECORD WAS EITHER
INADMISSIBLE OR ENTIRELY IRRELEVANT UPON THE ISSUE OF PROBABLE CAUSE. 
SEE BRINEGAR V. UNITED STATES, 338 U.S. 160, 172-174.  BUT TO HOLD THAT
KNOWLEDGE OF EITHER OR BOTH OF THESE FACTS CONSTITUTED PROBABLE CAUSE
WOULD BE TO HOLD THAT ANYONE WITH A PREVIOUS CRIMINAL RECORD COULD BE
ARRESTED AT WILL. 

IT IS POSSIBLE THAT AN INFORMER DID IN FACT RELATE INFORMATION TO THE
POLICE OFFICER IN THIS CASE WHICH CONSTITUTED PROBABLE CAUSE FOR THE
PETITIONER'S ARREST.  BUT WHEN THE CONSTITUTIONAL VALIDITY OF THAT
ARREST WAS CHALLENGED, IT WAS INCUMBENT UPON THE PROSECUTION TO SHOW
WITH CONSIDERABLY MORE SPECIFICITY THAN WAS SHOWN IN THIS CASE WHAT THE
INFORMER ACTUALLY SAID, AND WHY THE OFFICER THOUGHT THE INFORMATION WAS
CREDIBLE.  WE MAY ASSUME THAT THE OFFICERS ACTED IN GOOD FAITH IN
ARRESTING THE PETITIONER.  BUT "GOOD FAITH ON THE PART OF THE ARRESTING
OFFICERS IS NOT ENOUGH."  HENRY V. UNITED STATES, 361 U.S. 98, 102.  IF
SUBJECTIVE GOOD FAITH ALONE WERE THE TEST, THE PROTECTIONS OF THE
FOURTH AMENDMENT WOULD EVAPORATE, AND THE PEOPLE WOULD BE "SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS," ONLY IN THE DISCRETION OF
THE POLICE.  REVERSED. 

FN1  OHIO REVISED CODE, SEC. 2915.111.  POSSESSION OF "NUMBERS GAME"
TICKET. 

"NO PERSON SHALL OWN, POSSESS, HAVE ON OR ABOUT HIS PERSON, HAVE IN
HIS CUSTODY, OR HAVE UNDER HIS CONTROL A TICKET, ORDER, OR DEVICE FOR
OR REPRESENTING A NUMBER OF SHARES OR AN INTEREST IN A SCHEME OF CHANCE
KNOWN AS 'POLICY,' 'NUMBERS GAME,' 'CLEARING HOUSE,' OR BY WORDS OR
TERMS OF SIMILAR IMPORT, LOCATED IN OR TO BE DRAWN, PAID, OR CARRIED ON
WITHIN OR WITHOUT THIS STATE. 

"WHOEVER VIOLATES THIS SECTION SHALL BE FINED NOT MORE THAN FIVE
HUNDRED DOLLARS AND IMPRISONED NOT MORE THAN SIX MONTHS FOR A FIRST
OFFENSE; FOR EACH SUBSEQUENT OFFENSE, SUCH PERSON SHALL BE FINED NOT
LESS THAN FIVE HUNDRED NOR MORE THAN ONE THOUSAND DOLLARS AND
IMPRISONED NOT LESS THAN ONE NOR MORE THAN THREE YEARS." 

FN2  FOR MORE THAN 100 YEARS THE RULE IN OHIO HAS BEEN THAT ITS
SUPREME COURT, EXCEPT FOR PER CURIAM OPINIONS, SPEAKS AS A COURT ONLY
THROUGH THE SYLLABI OF ITS CASES.  SEE RULE VI, 94 OHIO ST. IX; 6 OHIO
ST. VIII; 5 OHIO ST. VII.  "INDIVIDUAL OPINIONS SPEAK THE CONCLUSIONS
OF THEIR WRITER.  WHAT USEFUL PURPOSE THEY SERVE IS AN OPEN QUESTION." 
THACKERY V. HELFRICH, 123 OHIO ST. 334, 336, 175 N.E. 449, 450. 

FN3  IT IS NOT ENTIRELY CLEAR WHETHER THE PETITIONER HAD BEEN
PREVIOUSLY CONVICTED, OR ONLY ARRESTED.  AT ONE POINT THE OFFICER
TESTIFIED AS FOLLOWS:  "I HEARD REPORTS AND FOUND THAT HE HAS A RECORD
IN CONNECTION WITH CLEARING HOUSE AND SCHEME OF CHANCE.  Q. PREVIOUS
CONVICTIONS?  A. YES." 

LATER HE TESTIFIED AS FOLLOWS: 

"Q.  YOU INDICATED THAT YOU KNEW OF MR. BECK'S PREVIOUS RECORD? 

"A.  YES, I DID.    "Q.  WHAT WAS THAT, SIR? 

"A.  THREE ARRESTS FOR CLEARING HOUSE VIOLATIONS. 

"Q.  WHEN WAS THIS? 

"A.  THEY WERE ALL DURING THE YEAR 1959, I BELIEVE. 

"Q.  ALL DURING THE YEAR 1959? 

"A.  YES. 

"Q.  THEN YOU DIDN'T HAVE ANY ARRESTS THAT YOU KNEW OF AS FAR AS 1960
WAS CONCERNED? 

"A.  NOT TO MY KNOWLEDGE."    FN4  "Q.  ABOUT WHAT TIME WAS IT THAT
YOU FIRST SAW MR. BECK? 

"A.  A FEW MINUTES BEFORE 1:00 P.M. THAT AFTERNOON. 

"Q.  AND HE WAS IN HIS AUTOMOBILE? 

"A.  HE WAS DRIVING HIS AUTOMOBILE. 

"Q.  HE WAS PROCEEDING THEN LAWFULLY DOWN THE STREET? 

"A.  HE WAS OPERATING NORTH ON 115TH STREET. 

"Q.  AND YOU STOPPED HIM? 

"A.  WE STOPPED HIM GOING EAST ON BEULAH. 

"Q.  YOU DID NOT STOP HIM FOR ANY TRAFFIC OFFENSE? 

"A.  NO; I DID NOT STOP HIM FOR THAT REASON. 

"Q.  YOU CAUSED HIM TO PULL OVER TO THE CURB? 

"A.  I IDENTIFIED MYSELF AND REQUESTED HIM TO PULL OVER TO THE CURB. 

"Q.  THEN YOU SEARCHED HIS AUTOMOBILE? 

"A.  YES, I DID. 

"Q.  PRIOR TO THAT, DID YOU INDICATE TO HIM THAT HE WAS UNDER ARREST? 

"A.  NOT WHILE SEARCHING THE AUTOMOBILE. 

"Q.  IN OTHER WORDS, YOU SEARCHED THE AUTOMOBILE BEFORE YOU PLACED
HIM UNDER ARREST? 

"A.  I PLACED HIM UNDER ARREST JUST AS WE WERE SEARCHING THE
AUTOMOBILE. 

"Q.  PRIOR TO THAT TIME, YOU HAD NOT DISCOVERED ANYTHING THAT WAS
ILLEGAL? 

"A.  OTHER THAN A HUNTING KNIFE IN THE AUTOMOBILE, THAT WAS IT. 

"Q.  WHY THEN DID YOU PLACE HIM UNDER ARREST? 

"A.  I PLACED HIM UNDER ARREST FOR A CLEARING HOUSE OPERATION, SCHEME
OF CHANCE. 

"Q.  AT THAT TIME, YOU HAD DISCOVERED SOME EVIDENCE OF A SCHEME OF
CHANCE? 

"A.  I DID NOT. 

"Q.  AT THE TIME YOU PLACED HIM UNDER ARREST, YOU DID NOT HAVE ANY
EVIDENCE? 

"A.  OTHER THAN INFORMATION." 

FN5  THE COURT HAS MADE CLEAR THAT THE GIORDENELLO DECISION RESTED
UPON THE FOURTH AMENDMENT, RATHER THAN UPON RULE 4 OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE.  SEE AGUILAR V. TEXAS, 378 U.S. 108, AT 112, N.
3. 

FN6  THE AGUILAR AND NATHANSON CASES INVOLVED SEARCH WARRANTS RATHER
THAN ARREST WARRANTS, BUT AS THE COURT HAS SAID, "THE LANGUAGE OF THE
FOURTH AMENDMENT, THAT '  ...  NO WARRANTS SHALL ISSUE, BUT UPON
PROBABLE CAUSE  ...  ' OF COURSE APPLIES TO ARREST AS WELL AS SEARCH
WARRANTS."  GIORDENELLO V. UNITED STATES, 357 U.S. 480, AT 485-486. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

THE SUPREME COURT OF OHIO, 175 OHIO ST. 73, 74, 191 N.E.2D 825, 827,
"DETERMINED" THE FOLLOWING FACTS IN THIS CASE: 

"THE CLEVELAND POLICE HAD GOOD REASON TO BELIEVE THAT DEFENDANT WAS
REGULARLY ENGAGED IN CARRYING ON A SCHEME OF CHANCE INVOLVING
CLEARINGHOUSE SLIPS.  THERE WAS TESTIMONY THAT HE HAD PREVIOUSLY BEEN
CONVICTED ON THAT SCORE.  INFORMATION WAS GIVEN TO THE POLICE BY AN
INFORMER THAT DEFENDANT WOULD BE IN A CERTAIN LOCALITY AT A CERTAIN
TIME PURSUING HIS UNLAWFUL ACTIVITIES.  HE WAS FOUND IN THAT LOCALITY,
AS PREDICTED, DRIVING AN AUTOMOBILE.  POLICE OFFICERS STOPPED THE CAR
AND SEARCHED IT, WITHOUT RESULT.  DEFENDANT WAS THEN ARRESTED AND TAKEN
TO A POLICE STATION, AND HIS CLOTHING WAS EXAMINED, RESULTING IN THE
DISCOVERY AND SEIZURE OF THE ILLEGAL CLEARINGHOUSE SLIPS, WHICH FORMED
THE BASIS OF THE CHARGE AGAINST HIM AND HIS SUBSEQUENT CONVICTION." 

THESE ARE THE FACTS UPON WHICH OHIO'S HIGHEST COURT BASED ITS OPINION
AND THEY HAVE SUPPORT IN THE RECORD. 

THE SYLLABUS RULE, RULE VI, PECULIAR TO THAT STATE AND OF WHICH THE
MAJORITY SPEAKS, WAS PROMULGATED IN 1858, 5 OHIO ST. VII, AND
PROVIDES: 

"A SYLLABUS OF THE POINTS DECIDED BY THE COURT IN EACH CASE, SHALL BE
STATED, IN WRITING, BY THE JUDGE ASSIGNED TO DELIVER THE OPINION OF THE
COURT, WHICH SHALL BE CONFINED TO THE POINTS OF LAW, ARISING FROM THE
FACTS OF THE CASE, THAT HAVE BEEN DETERMINED BY THE COURT  ...  ." 

AS MY LATE BROTHER OF REVERED MEMORY, MR. JUSTICE BURTON OF OHIO,
SAID IN THE OHIO CASE OF PERKINS V. BENGUET CONSOL.  MINING CO., 342
U.S. 437, 442, N. 3 (1952), "A SYLLABUS MUST BE READ IN THE LIGHT OF
THE FACTS IN THE CASE, EVEN WHERE BROUGHT OUT IN THE ACCOMPANYING
OPINION RATHER THAN IN THE SYLLABUS ITSELF."  THE GOOD JUSTICE WAS ONLY
FOLLOWING OHIO'S OWN CASES.  SEE WILLIAMSON HEATER CO. V. RADICH, 128
OHIO ST. 124, 190 N.E. 403 (1934); PERKINS V. BRIGHT, 109 OHIO ST. 14,
19-20, 141 N.E. 689, 690 (1923); IN RE POAGE, 87 OHIO ST. 72, 82-83,
100 N.E.  125, 127-128 (1912). 

THE COURT IGNORES THESE FINDINGS ENTIRELY.  WHERE THE HIGHEST COURT
OF A STATE AFTER DETAILED AND EARNEST CONSIDERATION DETERMINES THE
FACTS AND THEY ARE REASONABLY SUPPORTABLE, I WOULD LET THEM STAND.  AND
I WOULD, OF COURSE, GIVE THE SAME RESPECT TO FINDINGS OF PROBABLE CAUSE
BY UNITED STATES DISTRICT COURTS WHEN APPROVED BY UNITED STATES COURTS
OF APPEALS.  OTHERWISE, THIS COURT WILL BE CONTINUALLY DISPUTING WITH
STATE AND FEDERAL COURTS OVER THE MINUTIAE OF FACTS IN EVERY SEARCH AND
SEIZURE CASE.  ESPECIALLY IS THIS TRUE IF THE COURT DISPUTES THE
FINDINGS SUA SPONTE WHERE, AS HERE, NO ATTACK IS LEVELED AT THEM. 

BELIEVING THAT THE OHIO SUPREME COURT'S FINDINGS, SET OUT ABOVE,
FULLY SUPPORTS ITS CONCLUSION THAT PROBABLE CAUSE EXISTED IN THIS CASE
IN SUPPORT OF THE ARREST AND THE SEARCH INCIDENT THERETO, I WOULD
AFFIRM. 

MR. JUSTICE HARLAN, DISSENTING. 

JUDGE ZIMMERMAN OF THE SUPREME COURT OF OHIO STATED AS A FACT, (FN1)
"INFORMATION WAS GIVEN TO THE POLICE BY AN INFORMER THAT DEFENDANT
WOULD BE IN A CERTAIN LOCALITY AT A CERTAIN TIME PURSUING HIS UNLAWFUL
ACTIVITIES.  HE WAS FOUND IN THAT LOCALITY AS PREDICTED, DRIVING AN
AUTOMOBILE."  175 OHIO ST. 73, 74, 191 N.E.2D 825, 827.  I REGARD THIS
AS THE CRUCIAL POINT IN THE CASE, FOR IF THE INFORMANT DID GIVE THE
POLICE THAT INFORMATION, THE FACT OF ITS OCCURRENCE WOULD SUFFICIENTLY
INDICATE THE INFORMANT'S RELIABILITY TO PROVIDE A BASIS FOR
PETITIONER'S ARREST, DRAPER V. UNITED STATES, 358 U.S. 307.  IT IS THIS
COURT'S FUNCTION, THEREFORE, TO DETERMINE WHETHER THE STATE'S FINDING
IS ADEQUATELY SUPPORTABLE.  IN DOING SO IT IS ESSENTIAL TO CONSIDER
WHAT ARE THE APPROPRIATE STANDARDS OF APPELLATE REVIEW. 

GENERALLY "OUR INQUIRY CLEARLY IS LIMITED TO A STUDY OF THE
UNDISPUTED PORTIONS OF THE RECORD."  THOMAS V. ARIZONA, 356 U.S. 390,
402.  "THERE HAS BEEN COMPLETE AGREEMENT THAT ANY CONFLICT IN TESTIMONY
AS TO WHAT ACTUALLY LED TO A CONTESTED CONFESSION OR TO A CONTESTED
ARREST IS NOT THIS COURT'S CONCERN.  SUCH CONFLICT COMES HERE
AUTHORITATIVELY RESOLVED BY THE STATE'S ADJUDICATION."  WATTS V.
INDIANA, 338 U.S. 49, 51-52.  SEE ALSO, GALLEGOS V. NEBRASKA, 342 U.S.
55, 60-61; HALEY V. OHIO, 332 U.S. 596, 597-598.  IT IS EQUALLY CLEAR
THAT IN CASES INVOLVING ASSERTED VIOLATIONS OF CONSTITUTIONAL RIGHTS
THE COURT IS FREE TO DRAW ITS OWN INFERENCES FROM ESTABLISHED FACTS,
GIVING DUE WEIGHT TO THE CONCLUSIONS OF THE STATE COURT, BUT NOT BEING
CONCLUSIVELY BOUND BY THEM, KER V. CALIFORNIA, 374 U.S. 23; SPANO V.
NEW YORK, 360 U.S. 315. 

A DISTINCTION BETWEEN FACTS AND INFERENCES MAY OFTEN BE DIFFICULT TO
DRAW, BUT THE GUIDING PRINCIPLE FOR THIS COURT SHOULD BE THAT WHEN A
QUESTION IS IN DOUBT AND DEMEANOR AND CREDIBILITY OF WITNESSES, OR
CONTEMPORANEOUS UNDERSTANDINGS OF THE PARTIES, HAVE A PART TO PLAY IN
ITS RESOLUTION, THIS COURT SHOULD BE EXTREMELY SLOW TO UPSET A STATE
COURT'S INFERENTIAL FINDINGS.  THE IMPETUS FOR OUR EXERCISING DE NOVO
REVIEW OF THE FACTS COMES FROM THE ATTITUDE THAT UNLESS THIS COURT CAN
FULLY REDETERMINE THE FACTS OF EACH CASE FOR ITSELF, IT WILL BE UNABLE
TO AFFORD COMPLETE PROTECTION FOR CONSTITUTIONAL RIGHTS.  BUT WHEN THE
"FEEL" OF THE TRIAL MAY HAVE BEEN A PROPER ELEMENT IN RESOLVING AN
ISSUE WHICH IS UNCLEAR ON THE RECORD, OUR INDEPENDENT JUDGMENT SHOULD
GIVE WAY TO THE GREATER CAPABILITY OF THE STATE TRIAL COURT (FN2) IN
DETERMINING WHETHER A CONSTITUTIONAL RIGHT HAS BEEN INFRINGED.  (FN3)
PROPER REGARD FOR THE DUALITY OF THE AMERICAN JUDICIAL SYSTEM DEMANDS
NO LESS. 

FEDERAL HABEAS CORPUS, WHICH ALLOWS A FEDERAL COURT IN APPROPRIATE
CIRCUMSTANCES TO DEVELOP A FRESH RECORD, TOWNSEND V. SAIN, 372 U.S.
293, PROVIDES A FAR MORE SATISFACTORY VEHICLE FOR RESOLVING SUCH
UNCLEAR ISSUES, FOR THE JUDGE CAN EVALUATE FOR HIMSELF THE ON-THE-SPOT
CONSIDERATIONS WHICH NO APPELLATE COURT CAN ESTIMATE WITH ASSURANCE ON
A COLD RECORD.  THOSE CONSIDERATIONS ARE IMPORTANT TO THE CASE AT BAR. 

WHILE I AGREE THAT THE RECORD IS NOT FREE FROM ALL DOUBT, I BELIEVE
THAT THE FOLLOWING SELECTED PORTIONS OF THE TESTIMONY OF ONE OF THE
ARRESTING OFFICERS ARE SUFFICIENT TO CARRY THE DAY FOR THE STATE'S
JUDGMENT: 

"Q.  DID YOU HAVE REASONABLE AND PROBABLE CAUSE TO STOP THIS MAN? 

"A.  YES, I DID. 

     *         *         *         *         * 

"Q.  BASED ON HIS PREVIOUS RECORD? 

"A.  INFORMATION AND PREVIOUS RECORD AND OBSERVATION. 

     *         *         *         *         * 

"Q. WHEN YOU LEFT THE STATION, DID YOU HAVE IN MIND STOPPING MR.
BECK" 

"A.  I HAD IN MIND LOOKING FOR HIM IN THE AREA OF EAST 115TH STREET
AND BEULAH, STOPPING HIM IF I DID SEE HIM MAKE A STOP IN THAT AREA. 

     *         *         *         *       * 

"Q.  YOU INDICATED THAT YOU WERE OPERATING ON INFORMATION? 

"A.  YES. 

"Q.  FROM WHOM DID YOU GET THIS INFORMATION? 

     *         *         *         *         * 

"A.  I COULDN'T DIVULGE THAT INFORMATION. 

"Q.  BUT SOMEONE SPECIFICALLY DID RELATE THAT INFORMATION TO YOU? 

"A.  YES. 

"Q.  AND YOU KNEW WHO THAT PERSON WAS? 

"A.  YES." 

IT IS TRUE THAT THE OFFICER NEVER SPECIFICALLY SAID "THE INFORMANT
TOLD ME THAT BECK WAS OPERATING IN THE AREA OF EAST 115TH STREET AND
BEULAH," BUT HE DID TESTIFY THAT HE WENT LOOKING FOR BECK IN THAT
SPECIFIC AREA, THAT HE WAS ACTING IN PART ON INFORMATION, AND THAT HIS
INFORMATION HAD BEEN RELATED TO HIM BY SOME SPECIFIC PERSON WHOSE NAME
HE FELT PRIVILEGED NOT TO DIVULGE.  I FIND THE STATE COURT INFERENCE
REASONABLE, EVEN ON THE BASIS OF THE ADMITTEDLY SPARSE RECORD BEFORE
US, THAT THE INFORMANT TOLD THE OFFICER THAT BECK WAS OPERATING IN THE
MENTIONED AREA. 

FURTHERMORE, IN REACHING THIS INFERENCE, ON-THE-SPOT CONSIDERATIONS
MIGHT WELL HAVE COME INTO PLAY.  THERE APPEARS TO HAVE BEEN NO LACK OF
COMMON UNDERSTANDING AT TRIAL THAT THE INFORMANT HAD GIVEN THE OFFICER
THE CRUCIAL INFORMATION.  PETITIONER ARGUED IN THE OHIO SUPREME COURT,
"THE PATTERN IS OBVIOUS, AN OFFICER TESTIFIES HE HAD INFORMATION FROM A
CONFIDENTIAL SOURCE THAT A PARTICULAR PERSON IS 'PICKING UP' NUMBERS IN
A GIVEN AREA AND BASED ON THAT INFORMATION THEY ARREST SUCH PERSON 'ON
SIGHT' WITHOUT A WARRANT."  (FN4)  JUDGE ZIMMERMAN OF THE SUPREME COURT
OF OHIO FOUND IT TO BE THE FACT WITHOUT SEEING ANY NEED FOR
ELABORATION.  RESPONDENT, IN ITS BRIEF IN THIS COURT, ASSUMED IT TO BE
THE FACT.  (FN5)  AND PETITIONER RAISED NO QUESTION AS TO THIS
INFERENCE IN EITHER HIS PETITION OR BRIEF.  INDEED THE QUESTION IS
RAISED FOR THE FIRST TIME, SUA SPONTE, BY THE COURT'S OPINION. 

ON THIS BASIS I VOTE TO AFFIRM. 

FN1  ALTHOUGH IT WAS JUDGE ZIMMERMAN'S OPINION FOR THE SUPREME COURT
OF OHIO WHICH ARTICULATED THE SPECIFIC FINDING IN QUESTION HERE, THAT
FINDING MUST BE ATTRIBUTED TO THE TRIAL COURT, FOR WE MUST PRESUME THAT
ITS CONCLUSION THAT THE ARREST WAS CONSTITUTIONALLY PERMISSIBLE WAS
BASED ON THE FACTUAL FINDINGS NECESSARY TO SUPPORT IT.  IF THE COURT IS
UNWILLING TO ACCEPT THIS PRESUMPTION, IT SHOULD, AT LEAST, REMAND THE
CASE TO THE OHIO COURTS IN ORDER THAT ANY QUESTION ON THIS SCORE MAY BE
SET AT REST. 

FN2  SEE NOTE 1, SUPRA. 

FN3  NORRIS V. ALABAMA, 294 U.S. 587, IN WHICH THE COURT CONCLUDED,
CONTRARY TO A STATE COURT FINDING, THAT NEGROES' NAMES HAD BEEN
UNLAWFULLY ADDED TO A JURY BOOK, WOULD AT FIRST GLANCE APPEAR TO BE AN
EXCEPTION, BUT IN FACT IT PROVES THE RULE.  THE EVIDENCE ON WHICH THE
CONCLUSION WAS BASED WAS DOCUMENTARY AND NO "ON-THE-SPOT"
CONSIDERATIONS WERE INVOLVED. 

FN4  REPLY BRIEF FOR APPELLANT IN THE SUPREME COURT OF OHIO, P. 5 

FN5  BRIEF FOR RESPONDENT, P. 8. 
..END :













SCHLAGENHAUF V. HOLDER, U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
INDIANA 379 U.S. 104 


NO. 8.  ARGUED OCTOBER 13, 1964.  - DECIDED NOVEMBER 23, 1964.  - 321
F.2D 43, VACATED AND REMANDED. 


A BUS COLLIDED WITH THE REAR OF A TRACTOR-TRAILER AND A DIVERSITY
ACTION FOR DAMAGES WAS BROUGHT BY CERTAIN BUS PASSENGERS IN THE
DISTRICT COURT.  THE DEFENDANTS - THE BUS COMPANY, PETITIONER ITS
DRIVER, THE OWNERS OF THE TRACTOR AND THE TRAILER (HEREINAFTER
CODEFENDANTS), AND THE TRACTOR DRIVER - FILED ANSWERS DENYING
NEGLIGENCE.  THE BUS COMPANY CROSS-CLAIMED AGAINST CODEFENDANTS FOR
DAMAGE TO ITS BUS, CLAIMING THAT THE COLLISION RESULTED FROM THEIR
NEGLIGENCE.  CODEFENDANT TRACTOR OWNER ANSWERED THE CROSS-CLAIM, DENIED
NEGLIGENCE, AND ALLEGED THAT PETITIONER WAS "NOT MENTALLY OR PHYSICALLY
CAPABLE OF DRIVING A BUS AT THE TIME OF THE ACCIDENT AND THAT HIS
NEGLIGENCE PROXIMATELY CAUSED DAMAGE TO THE BUS.  CODEFENDANTS
PETITIONED THE DISTRICT COURT FOR AN ORDER THAT PETITIONER SUBMIT TO
MULTIPLE MENTAL AND PHYSICAL EXAMINATIONS UNDER RULE 35(A) OF THE
FEDERAL RULES OF CIVIL PROCEDURE.  THAT RULE PROVIDES FOR AN ORDER FOR
EXAMINATION ON MOTION "FOR GOOD CAUSE SHOWN" IN AN ACTION WHERE THE
MENTAL OR PHYSICAL CONDITION OF A PARTY IS "IN CONTROVERSY." 
CODEFENDANT TRAILER OWNER ANSWERED THE BUS COMPANY'S CROSS-CLAIM AND
ITSELF CROSS-CLAIMED AGAINST THE BUS COMPANY AND PETITIONER FOR DAMAGE
TO ITS TRAILER, ALLEGING NEGLIGENCE BY THE BUS COMPANY AND PETITIONER
THROUGH THE LATTER'S HAVING BEEN PERMITTED TO DRIVE THE BUS DESPITE A
KNOWN VISUAL DEFICIENCY.  RESPONDENT DISTRICT COURT JUDGE OVER
PETITIONER'S OPPOSITION GRANTED AN ORDER FOR INTERNAL MEDICINE,
OPHTHALMOLOGICAL, NEUROLOGICAL AND PSYCHIATRIC EXAMINATIONS OF
PETITIONER UNDER RULE 35(A).  TO SET ASIDE THAT ORDER PETITIONER
APPLIED FOR MANDAMUS AGAINST RESPONDENT IN THE COURT OF APPEALS, WHICH
THAT COURT DENIED.  HELD: 

1.  UNDER THE CIRCUMSTANCES OF THIS CASE MANDAMUS WAS AN APPROPRIATE
REMEDY TO REVIEW THE CHALLENGED POWER OF THE DISTRICT COURT TO ORDER
THE MENTAL AND PHYSICAL EXAMINATIONS OF A DEFENDANT.   PP. 109-112. 

(A)  THOUGH NOT A SUBSTITUTE FOR APPEAL, MANDAMUS IS AN APPROPRIATE
REMEDY FOR USURPATION OF POWER, A SUBSTANTIAL ISSUE IN THIS CASE,
INVOLVING AS IT DID THE FIRST CHALLENGE TO A DISTRICT COURT'S POWER
UNDER RULE 35(A) TO REQUIRE EXAMINATION OF A DEFENDANT.  P. 110. 

(B)  WHETHER THE DISTRICT COURT EXCEEDED ITS POWER BY HOLDING THAT
PETITIONER'S MENTAL AND PHYSICAL CONDITION WAS "IN CONTROVERSY" WITHIN
THE MEANING OF RULE 35(A) WAS PROPERLY BEFORE THE COURT OF APPEALS.  P.
111. 

(C)  THE COURT OF APPEALS DID NOT RESOLVE THE RELATED QUESTION
WHETHER "GOOD CAUSE" WAS SHOWN FOR ORDERING THE EXAMINATIONS, THOUGH IT
SHOULD HAVE DONE SO SINCE THE ALLEGATION OF USURPATION OF POWER WAS
BEFORE IT AND TO DO SO WOULD AVOID PIECEMEAL LITIGATION AND SETTLE NEW
AND IMPORTANT PROBLEMS.  P. 111. 

(D)  SINCE THE ISSUES PRESENTED HERE CONCERN CONSTRUCTION OF THE
FEDERAL RULES OF CIVIL PROCEDURE, WHICH IT IS THE DUTY OF THIS COURT TO
FORMULATE AND PUT IN FORCE, THIS COURT WILL CONSIDER THE MERITS OF SUCH
ISSUES AND FORMULATE NECESSARY GUIDELINES, RATHER THAN REMAND THE CAUSE
TO THE COURT OF APPEALS TO RECONSIDER THE ISSUE OF "GOOD CAUSE."  PP.
111-112. 

2.  RULE 35(A) APPLIES TO THE PHYSICAL OR MENTAL EXAMINATION OF
DEFENDANTS AS WELL AS PLAINTIFFS, AND AS SO APPLIED IS CONSTITUTIONAL,
AND AUTHORIZED BY THE RULES ENABLING ACT.  PP. 112-114. 

3.  THOUGH THE PERSON TO BE EXAMINED UNDER RULE 35(A) MUST BE A
"PARTY" TO THE ACTION HE NEED NOT BE AN OPPOSING PARTY VIS-A-VIS THE
MOVANT.  PP. 115-116. 

4.  THE NECESSARILY RELATED REQUIREMENTS OF RULE 35 THAT THE MENTAL
OR PHYSICAL CONDITION OF THE PARTY SOUGHT TO BE EXAMINED BE "IN
CONTROVERSY" AND THAT "GOOD CAUSE" BE SHOWN FOR THE EXAMINATION ARE NOT
MET BY MERE CONCLUSORY ALLEGATIONS OF THE PLEADINGS - NOR BY MERE
RELEVANCE TO THE CASE.  P. 118. 

5.  RULE 35 REQUIRES DISCRIMINATING APPLICATION BY THE TRIAL JUDGE,
WHO MUST DECIDE, AS AN INITIAL MATTER IN EACH CASE, WHETHER THE PARTY
REQUESTING A MENTAL OR PHYSICAL EXAMINATION OR EXAMINATIONS HAS
ADEQUATELY DEMONSTRATED THE EXISTENCE OF THE RULE'S NECESSARILY RELATED
REQUIREMENTS OF "IN CONTROVERSY" AND "GOOD CAUSE."  PP. 118-119. 

6.  A MOVANT UNDER RULE 35 FOR A MENTAL OR PHYSICAL EXAMINATION OF A
PARTY WHO HAS NOT ASSERTED HIS MENTAL OR PHYSICAL CONDITION EITHER IN
SUPPORT OF OR IN DEFENSE OF A CLAIM MUST, BY APPROPRIATE MEANS,
AFFIRMATIVELY SHOW THAT THE CONDITION SOUGHT TO BE EXAMINED IS REALLY
AND GENUINELY IN CONTROVERSY AND THAT GOOD CAUSE EXISTS FOR THE
PARTICULAR EXAMINATION REQUESTED.  PP. 119-120. 

7.  A SUFFICIENT SHOWING WAS NOT MADE IN THIS CASE TO SUPPORT ANY
EXCEPT PERHAPS A VISUAL EXAMINATION OF PETITIONER AND THE DISTRICT
COURT SHOULD RECONSIDER ITS ORDER, INCLUDING THAT FOR THE EYE
EXAMINATION, IN THE LIGHT OF THE GUIDELINES SET FORTH HEREIN.  PP. 120
121. 

SCHLAGENHAUF V. HOLDER, U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
INDIANA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE VALIDITY AND CONSTRUCTION OF RULE 35(A) OF THE
FEDERAL RULES OF CIVIL PROCEDURE AS APPLIED TO THE EXAMINATION OF A
DEFENDANT IN A NEGLIGENCE ACTION.  RULE 35(A) PROVIDES:

"PHYSICAL AND MENTAL EXAMINATION OF PERSONS.  (A) ORDER FOR
EXAMINATION.  IN AN ACTION IN WHICH THE MENTAL OR PHYSICAL CONDITION OF
A PARTY IS IN CONTROVERSY, THE COURT IN WHICH THE ACTION IS PENDING MAY
ORDER HIM TO SUBMIT TO A PHYSICAL OR MENTAL EXAMINATION BY A
PHYSICIAN.  THE ORDER MAY BE MADE ONLY ON MOTION FOR GOOD CAUSE SHOWN
AND UPON NOTICE TO THE PARTY TO BE EXAMINED AND TO ALL OTHER PARTIES
AND SHALL SPECIFY THE TIME, PLACE, MANNER, CONDITIONS, AND SCOPE OF THE
EXAMINATION AND THE PERSON OR PERSONS BY WHOM IT IS TO BE MADE." 

I. 

AN ACTION BASED ON DIVERSITY OF CITIZENSHIP WAS BROUGHT IN THE
DISTRICT COURT SEEKING DAMAGES ARISING FROM PERSONAL INJURIES SUFFERED
BY PASSENGERS OF A BUS WHICH COLLIDED WITH THE REAR OF A TRACTOR
TRAILER.  THE NAMED DEFENDANTS WERE THE GREYHOUND CORPORATION, OWNER OF
THE BUS; PETITIONER, ROBERT L. SCHLAGENHAUF, THE BUS DRIVER; CONTRACT
CARRIERS, INC., OWNER OF THE TRACTOR; JOSEPH L. MCCORKHILL, DRIVER OF
THE TRACTOR; (FN1) AND NATIONAL LEAD COMPANY, OWNER OF THE TRAILER. 
ANSWERS WERE FILED BY EACH OF THE DEFENDANTS DENYING NEGLIGENCE. 

GREYHOUND THEN CROSS-CLAIMED AGAINST CONTRACT CARRIERS AND NATIONAL
LEAD FOR DAMAGE TO GREYHOUND'S BUS, ALLEGING THAT THE COLLISION WAS DUE
SOLELY TO THEIR NEGLIGENCE IN THAT THE TRACTOR-TRAILER WAS DRIVEN AT AN
UNREASONABLY LOW SPEED, HAD NOT REMAINED IN ITS LANE, AND WAS NOT
EQUIPPED WITH PROPER REAR LIGHTS.  CONTRACT CARRIERS FILED AN ANSWER TO
THIS CROSS-CLAIM DENYING ITS NEGLIGENCE AND ASSERTING "THAT THE
NEGLIGENCE OF THE DRIVER OF THE  ...  BUS (PETITIONER SCHLAGENHAUF)
PROXIMATELY CAUSED AND CONTRIBUTED TO  ...  GREYHOUND'S DAMAGES." 

PURSUANT TO A PRETRIAL ORDER, CONTRACT CARRIERS FILED A LETTER -
WHICH THE TRIAL COURT TREATED AS, AND WE CONSIDER TO BE, PART OF THE
ANSWER - ALLEGING THAT SCHLAGENHAUF WAS "NOT MENTALLY OR PHYSICALLY
CAPABLE" OF DRIVING A BUS AT THE TIME OF THE ACCIDENT. 

CONTRACT CARRIERS AND NATIONAL LEAD THEN PETITIONED THE DISTRICT
COURT FOR AN ORDER DIRECTING PETITIONER SCHLAGENHAUF TO SUBMIT TO BOTH
MENTAL AND PHYSICAL EXAMINATIONS BY ONE SPECIALIST IN EACH OF THE
FOLLOWING FIELDS: 

(1)  INTERNAL MEDICINE: 

(2)  OPHTLALMOLOGY: 

(3)  NEUROLOGY; AND: 

(4)  PSYCHIATRY. 

FOR THE PURPOSE OF OFFERING A CHOICE TO THE DISTRICT COURT OF ONE
SPECIALIST IN EACH FIELD, THE PETITION RECOMMENDED TWO SPECIALISTS IN
INTERNAL MEDICINE, OPHTHALMOLOGY, AND PSYCHIATRY, RESPECTIVELY, AND
THREE SPECIALISTS IN NEUROLOGY - A TOTAL OF NINE PHYSICIANS.  THE
PETITION ALLEGED THAT THE MENTAL AND PHYSICAL CONDITION OF SCHLAGENHAUF
WAS "IN CONTROVERSY" AS IT HAD BEEN RAISED BY CONTRACT CARRIERS' ANSWER
TO GREYHOUND'S CROSS-CLAIM.  THIS WAS SUPPORTED BY A BRIEF OF LEGAL
AUTHORITIES AND AN AFFIDAVIT OF CONTRACT CARRIERS' ATTORNEY STATING
THAT SCHLAGENHAUF HAD SEEN RED LIGHTS 10 TO 15 SECONDS BEFORE THE
ACCIDENT, THAT ANOTHER WITNESS HAD SEEN THE REAR LIGHTS OF THE TRAILER
FROM A DISTANCE OF THREE-QUARTERS TO ONE-HALF MILE, AND THAT
SCHLAGENHAUF HAD BEEN INVOLVED IN A PRIOR ACCIDENT . 

THE CERTIFIED RECORD INDICATES THAT PETITIONER'S ATTORNEYS FILED IN
THE DISTRICT COURT A BRIEF IN OPPOSITION TO THIS PETITION ASSERTING,
AMONG OTHER THINGS, THAT "THE PHYSICAL AND MENTAL CONDITION OF THE
DEFENDANT ROBERT L. SCHLAGENHAUF IS NOT 'IN CONTROVERSY' HEREIN IN THE
SENSE THAT THESE WORDS ARE USED IN RULE 35 OF THE FEDERAL RULES OF
CIVIL PROCEDURE; AND THAT GOOD CAUSE HAS NOT BEEN SHOWN FOR THE
MULTIPLE-EXAMINATIONS PRAYED FOR BY THE CROSS-DEFENDANT  ...  ." 
(FN2) 

WHILE DISPOSITION OF THIS PETITION WAS PENDING, NATIONAL LEAD FILED
ITS ANSWER TO GREYHOUND'S CROSS-CLAIM AND ITSELF "CROSS-CLAIMED"
AGAINST GREYHOULD AND SCHLAGENHAUF FOR DAMAGE TO ITS TRAILER.   THE
ANSWER ASSERTED GENERALLY THAT SCHLAGENHAUF'S NEGLIGENCE PROXIMATELY
CAUSED THE ACCIDENT.  THE CROSS-CLAIM ADDITIONALLY ALLEGED THAT
GREYHOUND AND SCHLAGENHAUF WERE NEGLIGENT: 

"BY PERMITTING SAID BUS TO BE OPERATED OVER AND UPON SAID PUBLIC
HIGHWAY BY THE SAID DEFENDANT, ROBERT L. SCHLAGENHAUF, WHEN BOTH THE
SAID GREYHOUND CORPORATION AND SAID ROBERT L. SCHLAGENHAUF KNEW THAT
THE EYES AND VISION OF THE SAID ROBERT L. SCHLAGENHAUF WAS IMPAIRED AND
DEFICIENT." 

THE DISTRICT COURT, ON THE BASIS OF THE PETITION FILED BY CONTRACT
CARRIERS, AND WITHOUT ANY HEARING, ORDERED SCHLAGENHAUF TO SUBMIT TO
NINE EXAMINATIONS - ONE BY EACH OF THE RECOMMENDED SPECIALISTS -
DESPITE THE FACT THAT THE PETITION CLEARLY REQUESTED A TOTAL OF ONLY
FOUR EXAMINATIONS.  (FN3) 

PETITIONER APPLIED FOR A WRIT OF MANDAMUS IN THE COURT OF APPEALS
AGAINST THE RESPONDENT, THE DISTRICT COURT JUDGE, SEEKING TO HAVE SET
ASIDE THE ORDER REQUIRING HIS MENTAL AND PHYSICAL EXAMINATIONS.  THE
COURT OF APPEALS DENIED MANDAMUS, ONE JUDGE DISSENTING, 321 F.2D 43. 

WE GRANTED CERTIORARI TO REVIEW UNDECIDED QUESTIONS CONCERNING THE
VALIDITY AND CONSTRUCTION OF RULE 35.  375 U.S. 983. 

                                         II. 

A THRESHOLD PROBLEM ARISES DUE TO THE FACT THAT THIS CASE WAS IN THE
COURT OF APPEALS ON A PETITION FOR A WRIT OF MANDAMUS.  ALTHOUGH IT IS
NOT DISPUTED THAT WE HAVE JURISDICTION TO REVIEW THE JUDGMENT OF THE
COURT OF APPEALS, 28 U.S.C. SEC. 1254(1) (1958 ED.), RESPONDENT URGES
THAT THE JUDGMENT BELOW DISMISSING THE WRIT BE AFFIRMED ON THE GROUND
THAT MANDAMUS WAS NOT AN APPROPRIATE REMEDY. 

"THE TRADITIONAL USE OF THE WRIT IN AID OF APPELLATE JURISDICTION
BOTH AT COMMON LAW AND IN THE FEDERAL COURTS (FN4) HAS BEEN TO CONFINE
AN INFERIOR COURT TO A LAWFUL EXERCISE OF ITS PRESCRIBED JURISDICTION
...  ," ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21, 26. 

IT IS, OF COURSE, WELL SETTLED, THAT THE WRIT IS NOT TO BE USED AS A
SUBSTITUTE FOR APPEAL, EX PARTE FAHEY, 332 U.S. 258, 259-260, EVEN
THOUGH HARDSHIP MAY RESULT FROM DELAY AND PERHAPS UNNECESSARY TRIAL,
BANKERS LIFE & CASUALTY CO. V. HOLLAND, 346 U.S. 379, 382-383; UNITED
STATES ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S. 196, 202-203;
ROCHE V. EVAPORATED MILK ASSN., SUPRA, AT 31.  THE WRIT IS
APPROPRIATELY ISSUED, HOWEVER, WHEN THERE IS "USURPATION OF JUDICIAL
POWER" OR A CLEAR ABUSE OF DISCRETION, BANKERS LIFE & CASUALTY CO. V.
HOLLAND, SUPRA, AT 383. 

HERE PETITIONER'S BASIC ALLEGATION WAS LACK OF POWER IN A DISTRICT
COURT TO ORDER A MENTAL AND PHYSICAL EXAMINATION OF A DEFENDANT.  THAT
THIS ISSUE WAS SUBSTANTIAL IS UNDERSCORED BY THE FACT THAT THE
CHALLENGED ORDER REQUIRING EXAMINATION OF A DEFENDANT APPEARS TO BE THE
FIRST OF ITS KIND IN ANY REPORTED DECISION IN THE FEDERAL COURTS UNDER
RULE 35, (FN5) AND WE HAVE FOUND ONLY ONE SUCH MODERN CASE IN THE STATE
COURTS.  (FN6)  THE COURT OF APPEALS RECOGNIZED THAT IT HAD THE POWER
TO REVIEW ON A PETITION FOR MANDAMUS THE BASIC, UNDECIDED QUESTION OF
WHETHER A DISTRICT COURT COULD ORDER THE MENTAL OR PHYSICAL EXAMINATION
OF A DEFENDANT.  WE AGREE THAT, UNDER THESE UNUSUAL CIRCUMSTANCES AND
IN LIGHT OF THE AUTHORITIES, THE COURT OF APPEALS HAD SUCH POWER. 

THE PETITIONER, HOWEVER, ALSO ALLEGED THAT, EVEN IF RULE 35 GIVES A
DISTRICT COURT POWER TO ORDER MENTAL AND PHYSICAL EXAMINATIONS OF A
DEFENDANT IN AN APPROPRIATE CASE, THE DISTRICT COURT HERE EXCEEDED THAT
POWER IN ORDERING EXAMINATIONS WHEN PETITIONER'S MENTAL AND PHYSICAL
CONDITION WAS NOT "IN CONTROVERSY" AND NO "GOOD CAUSE" WAS SHOWN, BOTH
AS EXPRESSLY REQUIRED BY RULE 35.  AS WE READ ITS OPINION, THE COURT OF
APPEALS REACHED THE "IN CONTROVERSY" ISSUE AND DETERMINED IT ADVERSELY
TO PETITIONER.  321 F.2D, AT 51.  IT DID NOT, HOWEVER, REACH THE ISSUE
OF "GOOD CAUSE," APPRENTLY CONSIDERING THAT IT WAS NOT APPROPRIATE TO
DO SO ON A PETITION FOR MANDAMUS.  (FN7)  IBID. 

WE RECOGNIZE THAT IN THE ORDINARY SITUATION WHERE THE SOLE ISSUE
PRESENTED IS THE DISTRICT COURT'S DETERMINATION THAT "GOOD CAUSE" HAS
BEEN SHOWN FOR AN EXAMINATION, MANDAMUS IS NOT AN APPROPRIATE REMEDY,
ABSENT, OF COURSE, A CLEAR ABUSE OF DISCRETION.  SEE BANKERS LIFE &
CASUALTY CO. V. HOLLAND, SUPRA, AT 383.  HERE, HOWEVER, THE PETITION
WAS PROPERLY BEFORE THE COURT ON A SUBSTANTIAL ALLEGATION OF USURPATION
OF POWER IN ORDERING ANY EXAMINATION OF A DEFENDANT, AN ISSUE OF FIRST
IMPRESSION THAT CALLED FOR THE CONSTRUCTION AND APPLICATION OF RULE 35
IN A NEW CONTEXT.  THE MEANING OF RULE 35'S REQUIREMENTS OF "IN
CONTROVERSY" AND "GOOD CAUSE" ALSO RAISED ISSUES OF FIRST IMPRESSION. 
IN OUR VIEW, THE COURT OF APPEALS SHOULD HAVE ALSO, UNDER THESE SPECIAL
CIRCUMSTANCES, DETERMINED THE "GOOD CAUSE" ISSUE, SO AS TO AVOID
PIECEMEAL LITIGATION AND TO SETTLE NEW AND IMPORTANT PROBLEMS. 

THUS WE BELIEVE THAT THE COURT OF APPEALS HAD POWER TO DETERMINE ALL
OF THE ISSUES PRESENTED BY THE PETITION FOR MANDAMUS.  (FN8)  NORMALLY,
WISE JUDICIAL ADMINISTRATION WOULD COUNSEL REMAND OF THE CAUSE TO THE
COURT OF APPEALS TO RECONSIDER THIS ISSUE OF "GOOD CAUSE."  HOWEVER, IN
THIS INSTANCE THE ISSUE CONCERNS THE CONSTRUCTION AND APPLICATION OF
THE FEDERAL RULES OF CIVIL PROCEDURE.  IT IS THUS APPROPRIATE FOR US TO
DETERMINE ON THE MERITS THE ISSUES PRESENTED AND TO FORMULATE THE
NECESSARY GUIDELINES IN THIS AREA.  SEE VAN DUSEN V. BARRACK, 376 U.S.
612.  AS THIS COURT STATED IN LOS ANGELES BRUSH CORP. V. JAMES, 272
U.S. 701, 706: 

"WE THINK IT CLEAR THAT WHERE THE SUBJECT CONCERNS THE ENFORCEMENT OF
THE  ...  RULES WHICH BY LAW IT IS THE DUTY OF THIS COURT TO FORMULATE
AND PUT IN FORCE  ...  IT MAY  ...  DEAL DIRECTLY WITH THE DISTRICT
COURT  ...  ." 

SEE MCCULLOUGH V. COSGRAVE, 309 U.S. 634. 

THIS IS NOT TO SAY, HOWEVER, THAT, FOLLOWING THE SETTING OF
GUIDELINES IN THIS OPINION, ANY FUTURE ALLEGATION THAT THE DISTRICT
COURT WAS IN ERROR IN APPLYING THESE GUIDELINES TO A PARTICULAR CASE
MAKES MANDAMUS AN APPROPRIATE REMEDY.  THE WRIT OF MANDAMUS IS NOT TO
BE USED WHEN "THE MOST THAT COULD BE CLAIMED IS THAT THE DISTRICT
COURTS HAVE ERRED IN RULING ON MATTERS WITHIN THEIR JURISDICTION." 
PARR V. UNITED STATES, 351 U.S. 513, 520; SEE BANKERS LIFE & CASUALTY
CO. V. HOLLAND, SUPRA, AT 382. 

       III. 

RULE 35 ON ITS FACE APPLIES TO ALL "PARTIES," WHICH UNDER ANY NORMAL
READING WOULD INCLUDE A DEFENDANT.  PETITIONER CONTENDS, HOWEVER, THAT
THE APPLICATION OF THE RULE TO A DEFENDANT WOULD BE AN UNCONSTITUTIONAL
INVASION OF HIS PRIVACY, OR, AT THE LEAST, BE A MODIFICATION OF
SUBSTANTIVE RIGHTS EXISTING PRIOR TO THE ADOPTION OF THE FEDERAL RULES
OF CIVIL PROCEDURE AND THUS BEYOND THE CONGRESSIONAL MANDATE OF THE
RULES ENABLING ACT.  (FN9) 

THESE SAME CONTENTIONS WERE RAISED IN SIBBACH V. WILSON & CO., 312
U.S. 1, BY A PLAINTIFF IN A NEGLIGENCE ACTION WHO ASSERTED A PHYSICAL
INJURY AS A BASIS FOR RECOVERY.  THE COURT, BY A CLOSELY DIVIDED VOTE,
SUSTAINED THE RULE AS THERE APPLIED.  BOTH THE MAJORITY AND DISSENTING
OPINIONS, HOWEVER, AGREED THAT RULE 35 COULD NOT BE ASSAILED ON
CONSTITUTIONAL GROUNDS.  ID., AT 11-12, 17.  THE DIVISION IN THE COURT
WAS ON THE ISSUE OF WHETHER THE RULE WAS PROCEDURAL OR A MODIFICATION
OF SUBSTANTIVE RIGHTS.  THE MAJORITY HELD THAT THE RULE WAS A
REGULATION OF PROCEDURE AND THUS WITHIN THE SCOPE OF THE ENABLING ACT -
THE DISSENTERS DEEMED IT SUBSTANTIVE.  PETITIONER DOES NOT CHALLENGE
THE HOLDING IN SIBBACH AS APPLIED TO PLAINTIFFS.  HE CONTENDS, HOWEVER,
THAT IT SHOULD NOT BE EXTENDED TO DEFENDANTS.  WE CAN SEE NO BASIS
UNDER THE SIBBACH HOLDING FOR SUCH A DISTINCTION.  DISCOVERY "IS NOT A
ONE-WAY PROPOSITION."  HICKMAN V. TAYLOR, 329 U.S. 495, 507.  ISSUES
CANNOT BE RESOLVED BY A DOCTRINE OF FAVORING ONE CLASS OF LITIGANTS
OVER ANOTHER. 

WE RECOGNIZE THAT, INSOFAR AS REPORTED CASES SHOW, THIS TYPE OF
DISCOVERY IN FEDERAL COURTS HAS BEEN APPLIED SOLELY TO PLAINTIFFS, AND
THAT SOME EARLY STATE CASES SEEM TO HAVE PROCEEDED ON A THEORY THAT A
PLAIN TIFF WHO SEEKS REDRESS FOR INJURIES IN A COURT OF LAW THEREBY
"WAIVES" HIS RIGHT TO CLAIM THE INVIOLABILITY OF HIS PERSON.  (FN10) 

HOWEVER, IT IS CLEAR THAT SIBBACH WAS NOT DECIDED ON ANY "WAIVER"
THEORY.  AS MR. JUSTICE ROBERTS, FOR THE MAJORITY, STATED, ONE OF THE
RIGHTS OF A PERSON "IS THE RIGHT NOT TO BE INJURED IN ONE'S PERSON BY
ANOTHER'S NEGLIGENCE, TO REDRESS INFRACTION OF WHICH THE PRESENT ACTION
WAS BROUGHT."  312 U.S., AT 13.  FOR THE DISSENTERS, MR. JUSTICE
FRANKFURTER POINTED OUT THAT "OF COURSE THE RULE IS COMPULSIVE IN THAT
THE DOORS OF THE FEDERAL COURTS OTHERWISE OPEN MAY BE SHUT TO LITIGANTS
WHO DO NOT SUBMIT TO SUCH A PHYSICAL EXAMINATION."  ID., AT 18. 

THESE STATEMENTS DEMONSTRATE THE INVALIDITY OF ANY WAIVER THEORY. 
THE CHAIN OF EVENTS LEADING TO AN ULTIMATE DETERMINATION ON THE MERITS
BEGINS WITH THE INJURY OF THE PLAINTIFF, AN INVOLUNTARY ACT ON HIS
PART.  SEEKING COURT REDRESS IS JUST ONE STEP IN THIS CHAIN.  IF THE
PLAINTIFF IS PREVENTED OR DETERRED FROM THIS REDRESS, THE LOSS IS
THEREBY FORCED ON HIM TO THE SAME EXTENT AS IF THE DEFENDANT WERE
PREVENTED OR DETERRED FROM DEFENDING AGAINST THE ACTION.    MOREOVER,
THE RATIONALIZATION OF SIBBACH ON A WAIVER THEORY WOULD MEAN THAT A
PLAINTIFF HAS WAIVED A RIGHT BY EXERCISING HIS RIGHT OF ACCESS TO THE
FEDERAL COURTS.  SUCH A RESULT MIGHT CREATE CONSTITUTIONAL PROBLEMS. 
ALSO, IF A WAIVER THEORY IS ESPOUSED, PROBLEMS WOULD ARISE AS TO A
PLAINTIFF WHO ORIGINALLY BROUGHT HIS ACTION IN A STATE COURT (WHERE
THERE WAS NO EQUIVALENT OF RULE 35) AND THEN HAS THE CASE REMOVED BY
THE DEFENDANT TO FEDERAL COURT. 

WE HOLD THAT RULE 35, AS APPLIED TO EITHER PLAINTIFFS OR DEFENDANTS
TO AN ACTION, IS FREE OF CONSTITUTIONAL DIFFICULTY AND IS WITHIN THE
SCOPE OF THE ENABLING ACT.  WE THEREFORE AGREE WITH THE COURT OF
APPEALS THAT THE DISTRICT COURT HAD POWER TO APPLY RULE 35 TO A PARTY
DEFENDANT IN AN APPROPRIATE CASE. 

                                         IV. 

THERE REMAINS THE ISSUE OF THE CONSTRUCTION OF RULE 35.  WE ENTER
UPON DETERMINATION OF THIS CONSTRUCTION WITH THE BASIC PREMISE "THAT
THE DEPOSITION-DISCOVERY RULES ARE TO BE ACCORDED A BROAD AND LIBERAL
TREATMENT," HICKMAN V. TAYLOR, SUPRA, AT 507, TO EFFECTUATE THEIR
PURPOSE THAT "CIVIL TRIALS IN THE FEDERAL COURTS NO LONGER NEED BE
CARRIED ON IN THE DARK."  ID., AT 501. 

PETITIONER CONTENDS THAT EVEN IF RULE 35 IS TO BE APPLIED TO
DEFENDANTS, WHICH WE HAVE DETERMINED IT MUST, NEVERTHELESS IT SHOULD
NOT BE APPLIED TO HIM AS HE WAS NOT A PARTY IN RELATION TO CONTRACT
CARRIERS AND NATIONAL LEAD - THE MOVANTS FOR THE MENTAL AND PHYSICAL
EXAMINATIONS - AT THE TIME THE EXAMINATIONS WERE SOUGHT.  (FN11)  THE
COURT OF APPEALS AGREED WITH PETITIONER'S GENERAL LEGAL PROPOSITION,
HOLDING THAT THE PERSON SOUGHT TO BE EXAMINED MUST BE AN OPPOSING PARTY
VIS-A-VIS THE MOVANT (OR AT LEAST ONE OF THEM).  321 F.2D, AT 49. 
WHILE IT IS CLEAR THAT THE PERSON TO BE EXAMINED MUST BE A PARTY TO THE
CASE, (FN12) WE ARE OF THE VIEW THAT THE COURT OF APPEALS GAVE AN
UNDULY RESTRICTIVE INTERPRETATION TO THAT TERM.  RULE 35 ONLY REQUIRES
THAT THE PERSON TO BE EXAMINED BE A PARTY TO THE "ACTION," NOT THAT HE
BE AN OPPOSING PARTY VIS-A-VIS THE MOVANT.  THERE IS NO DOUBT THAT
SCHLAGENHAUF WAS A "PARTY" TO THIS "ACTION" BY VIRTUE OF THE ORIGINAL
COMPLAINT.  THEREFORE, RULE 35 PERMITTED EXAMINATION OF HIM (A PARTY
DEFENDANT) UPON PETITION OF CONTRACT CARRIERS AND NATIONAL LEAD
(CODEFENDANTS), PROVIDED, OF COURSE, THAT THE OTHER REQUIREMENTS OF THE
RULE WERE MET.  INSISTENCE THAT THE MOVANT HAVE FILED A PLEADING
AGAINST THE PERSON TO BE EXAMINED WOULD HAVE THE UNDESIRABLE RESULT OF
AN UNNECESSARY PROLIFERATION OF CROSS-CLAIMS AND COUNTERCLAIMS AND
WOULD NOT BE IN KEEPING WITH THE AIMS OF A LIBERAL, NONTECHNICAL
APPLICATION OF THE FEDERAL RULES.  SEE HICKMAN V. TAYLOR, SUPRA, AT 500
501. 

WHILE THE COURT OF APPEALS HELD THAT PETITIONER WAS NOT A PARTY VIS-A
VIS NATIONAL LEAD OR CONTRACT CARRIERS AT THE TIME THE EXAMINATIONS
WERE FIRST SOUGHT, IT WENT ON TO HOLD THAT HE HAD BECOME A PARTY VIS-A
VIS NATIONAL LEAD BY THE TIME OF A SECOND ORDER ENTERED BY THE DISTRICT
COURT AND THUS WAS A PARTY WITHIN ITS RULE.  THIS SECOND ORDER,
IDENTICAL IN ALL MATERIAL RESPECTS WITH THE FIRST, WAS ENTERED ON THE
BASIS OF SUPPLEMENTARY PETITIONS FILED BY NATIONAL LEAD AND CONTRACT
CARRIERS.  THESE PETITIONS GAVE NO NEW BASIS FOR THE EXAMINATIONS,
EXCEPT FOR THE ALLEGATION THAT PETITIONER'S MENTAL AND PHYSICAL
CONDITION HAD BEEN ADDITIONALLY PUT IN CONTROVERSY BY THE NATIONAL LEAD
ANSWER AND CROSS-CLAIM, WHICH HAD BEEN FILED SUBSEQUENT TO THE FIRST
PETITION FOR EXAMINATIONS.   ALTHOUGH THE FILING OF THE PETITION FOR
MANDAMUS INTERVENED BETWEEN THESE TWO ORDERS, WE ACCEPT, FOR PURPOSES
OF THIS OPINION, THE DETERMINATION OF THE COURT OF APPEALS THAT THIS
SECOND ORDER WAS THE ONE BEFORE IT (FN13) AND AGREE THAT PETITIONER WAS
CLEARLY A PARTY AT THIS JUNCTURE UNDER ANY TEST. 

PETITIONER NEXT CONTENDS THAT HIS MENTAL OR PHYSICAL CONDITION WAS
NOT "IN CONTROVERSY" AND "GOOD CAUSE" WAS NOT SHOWN FOR THE
EXAMINATIONS, BOTH AS REQUIRED BY THE EXPRESS TERMS OF RULE 35. 

THE DISCOVERY DEVICES SANCTIONED BY PART V OF THE FEDERAL RULES
INCLUDE THE TAKING OF ORAL AND WRITTEN DEPOSITIONS (RULES 26-32),
INTERROGATORIES TO PARTIES (RULE 33), PRODUCTION OF DOCUMENTS (RULE
34), AND PHYSICAL AND MENTAL EXAMINATIONS OF PARTIES (RULE 35).  THE
SCOPE OF DISCOVERY IN EACH INSTANCE IS LIMITED BY RULE 26(B)'S
PROVISION THAT "THE DEPONENT MAY BE EXAMINED REGARDING ANY MATTER, NOT
PRIVILEGED, WHICH IS RELEVANT TO THE SUBJECT MATTER INVOLVED IN THE
PENDING ACTION," AND BY THE PROVISIONS OF RULE 30(B) PERMITTING THE
DISTRICT COURT, UPON MOTION, TO LIMIT, TERMINATE, OR OTHERWISE CONTROL
THE USE OF DISCOVERY DEVICES SO AS TO PREVENT EITHER THEIR USE IN BAD
FAITH OR UNDUE "ANNOYANCE, EMBARRASSMENT, OR OPPRESSION." 

IT IS NOTABLE, HOWEVER, THAT IN NONE OF THE OTHER DISCOVERY
PROVISIONS IS THERE A RESTRICTION THAT THE MATTER BE "IN CONTROVERSY,"
AND ONLY IN RULE 34 IS THERE RULE 35'S REQUIREMENT THAT THE MOVANT
AFFIRMATIVELY DEMONSTRATE "GOOD CAUSE." 

THIS ADDITIONAL REQUIREMENT OF "GOOD CAUSE" WAS REVIEWED BY CHIEF
JUDGE SOBELOFF IN GUILFORD NATIONAL BANK V. SOUTHERN R. CO., 297 F.2D
921, 924 (C.A. 4TH CIR.), IN THE FOLLOWING WORDS: 

"SUBJECT TO  ...  THE RESTRICTIONS OF RULES 26(B) AND 30(B) AND (D),
A PARTY MAY TAKE DEPOSITIONS AND SERVE INTERROGATORIES WITHOUT PRIOR
SANCTION OF THE COURT OR EVEN ITS KNOWLEDGE OF WHAT THE PARTY IS
DOING.  ONLY IF A DEPONENT REFUSES TO ANSWER IN THE BELIEF THAT THE
QUESTION IS IRRELEVANT, CAN THE MOVING PARTY REQUEST UNDER RULE 37 A
COURT ORDER REQUIRING AN ANSWER. 

"SIGNIFICANTLY, THIS FREEDOM OF ACTION, AFFORDED A PARTY WHO RESORTS
TO DEPOSITIONS AND INTERROGATORIES, IS NOT GRANTED TO ONE PROCEEDING
UNDER RULES 34 AND 35.  INSTEAD, THE COURT MUST DECIDE AS AN INITIAL
MATTER, AND IN EVERY CASE, WHETHER THE MOTION REQUESTING PRODUCTION OF
DOCUMENTS OR THE MAKING OF A PHYSICAL OR MENTAL EXAMINATION ADEQUATELY
DEMONSTRATES GOOD CAUSE.  THE SPECIFIC REQUIREMENT OF GOOD CAUSE WOULD
BE MEANINGLESS IF GOOD CAUSE COULD BE SUFFICIENTLY ESTABLISHED BY
MERELY SHOWING THAT THE DESIRED MATERIALS ARE RELEVANT, FOR THE
RELEVANCY STANDARD HAS ALREADY BEEN IMPOSED BY RULE 26(B).  THUS, BY
ADDING THE WORDS '  ...  GOOD CAUSE  ...  ,' THE RULES INDICATE THAT
THERE MUST BE GREATER SHOWING OF NEED UNDER RULES 34 AND 35 THAN UNDER
THE OTHER DISCOVERY RULES." 

THE COURTS OF APPEALS IN OTHER CASES (FN14) HAVE ALSO RECOGNIZED THAT
RULE 34'S GOOD-CAUSE REQUIREMENT IS NOT A MERE FORMALITY, BUT IS A
PLAINLY EXPRESSED LIMITATION ON THE USE OF THAT RULE.  THIS IS
OBVIOUSLY TRUE AS TO THE "IN CONTROVERSY" AND "GOOD CAUSE" REQUIREMENTS
OF RULE 35.  THEY ARE NOT MET BY MERE CONCLUSORY ALLEGATIONS OF THE
PLEADINGS - NOR BY MERE RELEVANCE TO THE CASE - BUT REQUIRE AN
AFFIRMATIVE SHOWING BY THE MOVANT THAT EACH CONDITION AS TO WHICH THE
EXAMINATION IS SOUGHT IS REALLY AND GENUINELY IN CONTROVERSY AND THAT
GOOD CAUSE EXISTS FOR ORDERING EACH PARTICULAR EXAMINATION.  OBVIOUSLY,
WHAT MAY BE GOOD CAUSE FOR ONE TYPE OF EXAMINATION MAY NOT BE SO FOR
ANOTHER.  THE ABILITY OF THE MOVANT TO OBTAIN THE DESIRED INFORMATION
BY OTHER MEANS IS ALSO RELEVANT. 

RULE 35, THEREFORE, REQUIRES DISCRIMINATING APPLICATION BY THE TRIAL
JUDGE, WHO MUST DECIDE, AS AN INITIAL MATTER IN EVERY CASE, WHETHER THE
PARTY REQUESTING A MENTAL OR PHYSICAL EXAMINATION OR EXAMINATIONS HAS
ADEQUATELY DEMONSTRATED THE EXISTENCE OF THE RULE'S REQUIREMENTS OF "IN
CONTROVERSY" AND "GOOD CAUSE," WHICH REQUIREMENTS, AS THE COURT OF
APPEALS IN THIS CASE ITSELF RECOGNIZED, ARE NECESSARILY RELATED.  321
F.2D, AT 51.  THIS DOES NOT, OF COURSE, MEAN THAT THE MOVANT MUST PROVE
HIS CASE ON THE MERITS IN ORDER TO MEET THE REQUIREMENTS FOR A MENTAL
OR PHYSICAL EXAMINATION.  NOR DOES IT MEAN THAT AN EVIDENTIARY HEARING
IS REQUIRED IN ALL CASES.  THIS MAY BE NECESSARY IN SOME CASES, BUT IN
OTHER CASES THE SHOWING COULD BE MADE BY AFFIDAVITS OR OTHER USUAL
METHODS SHORT OF A HEARING.  IT DOES MEAN, THOUGH, THAT THE MOVANT MUST
PRODUCE SUFFICIENT INFORMATION, BY WHATEVER MEANS, SO THAT THE DISTRICT
JUDGE CAN FULFILL HIS FUNCTION MANDATED BY THE RULE. 

OF COURSE, THERE ARE SITUATIONS WHERE THE PLEADINGS ALONE ARE
SUFFICIENT TO MEET THESE REQUIREMENTS.  A PLAINTIFF IN A NEGLIGENCE
ACTION WHO ASSERTS MENTAL OR PHYSICAL INJURY, CF. SIBBACH V. WILSON &
CO., SUPRA, PLACES THAT MENTAL OR PHYSICAL INJURY CLEARLY IN
CONTROVERSY AND PROVIDES THE DEFENDANT WITH GOOD CAUSE FOR AN
EXAMINATION TO DETERMINE THE EXISTENCE AND EXTENT OF SUCH ASSERTED
INJURY.  THIS IS NOT ONLY TRUE AS TO A PLAINTIFF, BUT APPLIES EQUALLY
TO A DEFENDANT WHO ASSERTS HIS MENTAL OR PHYSICAL CONDITION AS A
DEFENSE TO A CLAIM, SUCH AS, FOR EXAMPLE, WHERE INSANITY IS ASSERTED AS
A DEFENSE TO A DIVORCE ACTION.  SEE RICHARDSON V. RICHARDSON, 124 COLO.
240, 236 P.2D 121.  SEE ALSO ROBERTS V. ROBERTS, 198 MD. 299, 82 A.2D
120; DISCOVERY AS TO MENTAL CONDITION BEFORE TRIAL, 18 J. AM. JUD. 
SOC.  47 (1934). 

HERE, HOWEVER, SCHLAGENHAUF DID NOT ASSERT HIS MENTAL OR PHYSICAL
CONDITION EITHER IN SUPPORT OF OR IN DEFENSE OF A CLAIM.  HIS CONDITION
WAS SOUGHT TO BE PLACED IN ISSUE BY OTHER PARTIES.  THUS, UNDER THE
PRINCIPLES DISCUSSED ABOVE, RULE 35 REQUIRED THAT THESE PARTIES MAKE AN
AFFIRMATIVE SHOWING THAT PETITIONER'S MENTAL OR PHYSICAL CONDITION WAS
IN CONTROVERSY AND THAT THERE WAS GOOD CAUSE FOR THE EXAMINATIONS
REQUESTED.  THIS, THE RECORD PLAINLY SHOWS, THEY FAILED TO DO. 

THE ONLY ALLEGATIONS IN THE PLEADINGS RELATING TO THIS SUBJECT WERE
THE GENERAL CONCLUSORY STATEMENT IN CONTRACT CARRIERS' ANSWER TO THE
CROSS-CLAIM THAT "SCHLAGENHAUF WAS NOT MENTALLY OR PHYSICALLY CAPABLE
OF OPERATING" THE BUS AT THE TIME OF THE ACCIDENT AND THE LIMITED
ALLEGATION IN NATIONAL LEAD'S CROSS-CLAIM THAT, AT THE TIME OF THE
ACCIDENT, "THE EYES AND VISION OF  ... SCHLAGENHAUF WAS IMPAIRED AND
DEFICIENT." 

THE ATTORNEY'S AFFIDAVIT ATTACHED TO THE PETITION FOR THE
EXAMINATIONS PROVIDED: 

"THAT  ...  SCHLAGENHAUF, IN HIS DEPOSITION  ...  ADMITTED THAT HE
SAW RED LIGHTS FOR 10 TO 15 SECONDS PRIOR TO A COLLISION WITH A SEMI
TRACTOR TRAILER UNIT AND YET DROVE HIS VEHICLE ON WITHOUT REDUCING
SPEED AND WITHOUT ALTERING THE COURSE THEREOF. 

"THE ONLY EYE-WITNESS TO THIS ACCIDENT KNOWN TO THIS AFFIANT  ...
TESTIFIED THAT IMMEDIATELY PRIOR TO THE IMPACT BETWEEN THE BUS AND
TRUCK THAT HE HAD ALSO BEEN APPROACHING THE TRUCK FROM THE REAR AND
THAT HE HAD CLEARLY SEEN THE LIGHTS OF THE TRUCK FOR A DISTANCE OF
THREE-QUARTERS TO ONE-HALF MILE TO THE REAR THEREOF. 

"  ...  SCHLAGENHAUF HAS ADMITTED IN HIS DEPOSITION  ...  THAT HE WAS
INVOLVED IN A PRIOR SIMILAR TYPE REAR END COLLISION  ...  ." 

THIS RECORD CANNOT SUPPORT EVEN THE CORRECTED ORDER WHICH REQUIRED
ONE EXAMINATION IN EACH OF THE FOUR SPECIALTIES OF INTERNAL MEDICINE,
OPHTHALMOLOGY, NEUROLOGY, AND PSYCHIATRY.  (FN15)  NOTHING IN THE
PLEADINGS OR AFFIDAVIT WOULD AFFORD A BASIS FOR A BELIEF THAT
SCHLAGENHAUF WAS SUFFERING FROM A MENTAL OR NEUROLOGICAL ILLNESS
WARRANTING WIDE-RANGING PSYCHIATRIC OR NEUROLOGICAL EXAMINATIONS.  NOR
IS THERE ANYTHING STATED JUSTIFYING THE BROAD INTERNAL MEDICINE
EXAMINATION.  (FN16) 

THE ONLY SPECIFIC ALLEGATION MADE IN SUPPORT OF THE FOUR EXAMINATIONS
ORDERED WAS THAT THE "EYES AND VISION" OF SCHLAGENHAUF WERE IMPAIRED. 
CONSIDERING THIS IN CONJUNCTION WITH THE AFFIDAVIT, WE WOULD BE
HESITANT TO SET ASIDE A VISUAL EXAMINATION IF IT HAD BEEN THE ONLY ONE
ORDERED.  (FN17) HOWEVER, AS THE CASE MUST BE REMANDED TO THE DISTRICT
COURT BECAUSE OF THE OTHER EXAMINATIONS ORDERED, IT WOULD BE
APPROPRIATE FOR THE DISTRICT JUDGE TO RECONSIDER ALSO THIS ORDER IN
LIGHT OF THE GUIDELINES SET FORTH IN THIS OPINION. 

THE FEDERAL RULES OF CIVIL PROCEDURE SHOULD BE LIBERALLY CONSTRUED,
BUT THEY SHOULD NOT BE EXPANDED BY DISREGARDING PLAINLY EXPRESSED
LIMITATIONS.  THE "GOOD CAUSE" AND "IN CONTROVERSY" REQUIREMENTS OF
RULE 35 MAKE IT VERY APPARENT THAT SWEEPING EXAMINATIONS OF A PARTY WHO
HAS NOT AFFIRMATIVELY PUT INTO ISSUE HIS OWN MENTAL OR PHYSICAL
CONDITION ARE NOT TO BE AUTOMATICALLY ORDERED MERELY BECAUSE THE PERSON
HAS BEEN INVOLVED IN AN ACCIDENT - OR, AS IN THIS CASE, TWO ACCIDENTS -
AND A GENERAL CHARGE OF NEGLIGENCE IS LODGED.  MENTAL AND PHYSICAL
EXAMINATIONS ARE ONLY TO BE ORDERED UPON A DISCRIMINATING APPLICATION
BY THE DISTRICT JUDGE OF THE LIMITATIONS PRESCRIBED BY THE RULE.  TO
HOLD OTHERWISE WOULD MEAN THAT SUCH EXAMINATIONS COULD BE ORDERED
ROUTINELY IN AUTOMOBILE ACCIDENT CASES.  (FN18)  THE PLAIN LANGUAGE OF
RULE 35 PRECLUDES SUCH AN UNTOWARD RESULT. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE
CASE REMANDED TO THE DISTRICT COURT TO RECONSIDER THE EXAMINATION ORDER
IN LIGHT OF THE GUIDELINES HEREIN FORMULATED AND FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  VACATED AND REMANDED. 

FN1  IN ALL THE PLEADINGS MCCORKHILL WAS JOINED WITH CONTRACT
CARRIERS.  FOR SIMPLICITY, BOTH WILL BE REFERRED TO AS CONTRACT
CARRIERS. 

FN2  THESE CONTENTIONS WERE RENEWED BY WRITTEN "OBJECTIONS AND BRIEF"
AT THE TIME THE CORRECTED ORDER DESCRIBED IN NOTE 3 WAS ENTERED BY THE
DISTRICT COURT. 

FN3  AFTER THE COURT OF APPEALS DENIED MANDAMUS, THE ORDER WAS
CORRECTED BY THE DISTRICT COURT TO REDUCE THE NUMBER OF EXAMINATIONS TO
THE FOUR REQUESTED.  WE AGREE WITH RESPONDENT THAT THE ISSUE OF THAT
ERROR HAS BECOME MOOT.  HOWEVER, THE FACT THAT THE DISTRICT COURT
ORDERED NINE EXAMINATIONS IS NOT IRRELEVANT, TOGETHER WITH ALL THE
OTHER CIRCUMSTANCES, IN THE CONSIDERATION OF WHETHER THE DISTRICT COURT
GAVE TO THE PETITION FOR MENTAL AND PHYSICAL EXAMINATIONS THAT
DISCRIMINATING APPLICATION, WHICH RULE 35 REQUIRES.  SEE PP. 119-122,
INFRA.    FN4  28 U.S.C. SEC. 1651(A) (1958 ED.):  "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." 

FN5  BUT SEE DINSEL V. PENNSYLVANIA R. CO., 144 F. SUPP. 880
(D.C.W.D. PA.), WHERE THIS ISSUE WAS CONSIDERED BUT THE DISTRICT COURT,
AFTER CONSIDERATION OF THE FACTS, DECLINED TO ORDER AN EXAMINATION. 

FN6  HARABEDIAN V. SUPERIOR COURT, 195 CAL. APP. 2D 26, 15 CAL.
RPTR.  420 (DIST. CT. APP.). 

FN7  KILEY, J., DISSENTED ON THIS POINT, CONCLUDING THAT THE RECORD
DISCLOSED "NO ADEQUATE BASIS" FOR THE DISTRICT COURT'S EXERCISE OF ITS
DISCRETION.  321 F.2D, AT 52. 

FN8  IT IS NOT NECESSARY TO DETERMINE WHETHER OR NOT A REFUSAL BY THE
COURT OF APPEALS TO ISSUE THE WRIT, AFTER CONSIDERATION OF THE GOOD
CAUSE ISSUE, WOULD HAVE BEEN REVERSIBLE ERROR.  THE ISSUANCE OF THIS
EXTRAORDINARY WRIT IS ITSELF GENERALLY A MATTER OF DISCRETION.  SEE LA
BUY V. HOWES LEATHER CO., 352 U.S. 249, 260; BANKERS LIFE & CASUALTY
CO. V. HOLLAND, SUPRA; 6 MOORE, FEDERAL PRACTICE, PARA. 54.10(4) (1953
ED.). 

FN9  28 U.S.C. SEC. 2072 (1958 ED.), WHICH PROVIDES THAT THE RULES
"SHALL NOT ABRIDGE, ENLARGE OR MODIFY ANY SUBSTANTIVE RIGHT  ...  ." 

FN10  FOR A DISCUSSION OF THESE CASES, SEE 8 WIGMORE, EVIDENCE, SEC.
2220 (MCNAUGHTON REV. ED. 1961).  SEE ALSO 3 OHLINGER'S FEDERAL
PRACTICE 490 (1964 ED.). 

FN11  WE HAVE ALREADY POINTED OUT, PP. 106-108, SUPRA, THAT AT THE
TIME OF THE FIRST PETITION, SCHLAGENHAUF WAS A NAMED DEFENDANT IN THE
ORIGINAL COMPLAINT BUT WAS NOT A NAMED CROSS-DEFENDANT IN ANY PLEADINGS
FILED BY CONTRACT CARRIERS OR NATIONAL LEAD. 

FN12  ALTHOUGH PETITIONER WAS AN AGENT OF GREYHOUND, HE WAS HIMSELF A
PARTY TO THE ACTION.  HE IS TO BE DISTINGUISHED FROM ONE WHO IS NOT A
PARTY BUT IS, FOR EXAMPLE, MERELY THE AGENT OF A PARTY.  THIS IS NOT
ONLY CLEAR IN THE WORDING OF THE RULE, BUT IS REINFORCED BY THE FACT
THAT THIS COURT HAS NEVER APPROVED THE ADVISORY COMMITTEE'S PROPOSED
AMENDMENT TO RULE 35 WHICH WOULD INCLUDE WITHIN THE SCOPE OF THE RULE
"AN AGENT OR A PERSON IN THE CUSTODY OR UNDER THE LEGAL CONTROL OF A
PARTY."  ADVISORY COMMITTEE ON RULES FOR CIVIL PROCEDURE, REPORT OF
PROPOSED AMENDMENTS, 41-43 (1955).  IT IS NOT NOW NECESSARY TO
DETERMINE TO WHAT EXTENT, IF ANY, THE TERM "PARTY" INCLUDES ONE WHO IS
A "REAL PARTY IN INTEREST" ALTHOUGH NOT A NAMED PARTY TO THE ACTION. 
CF. BEACH V. BEACH, 72 APP. D.C. 318, 114 F.2D 479. 

FN13  AS STATED IN NOTE 3, SUPRA, THEREAFTER A THIRD ORDER WAS
ENTERED WHICH REDUCED THE NUMBER OF EXAMINATIONS TO THE FOUR
REQUESTED. 

FN14  HAUGER V. CHICAGO, R.I. & PAC. R. CO., 216 F.2D 501 (C.A. 7TH
CIR.); MARTIN V. CAPITAL TRANSIT CO., 83 U.S. APP. D.C. 239, 170 F.2D
811; SEE MITCHELL V. BASS, 252 F.2D 513 (C.A. 8TH CIR.); WILLIAMS V.
CONTINENTAL OIL CO., 215 F.2D 4 (C.A. 10TH CIR.); ALLTMONT V. UNITED
STATES, 177 F.2D 971 (C.A. 3D CIR.). 

FN15  SEE NOTE 3, SUPRA. 

FN16  MOREOVER, IT SEEMS CLEAR THAT THERE WAS NO COMPLIANCE WITH RULE
35'S REQUIREMENT THAT THE TRIAL JUDGE DELINEATE THE "CONDITIONS, AND
SCOPE" OF THE EXAMINATIONS.  HERE THE EXAMINATIONS WERE ORDERED IN VERY
BROAD, GENERAL AREAS.  THE INTERNAL MEDICINE EXAMINATION MIGHT FOR
EXAMPLE, AT THE INSTANCE OF THE MOVANT OR ITS RECOMMENDED PHYSICIAN
EXTEND TO SUCH THINGS AS BLOOD TESTS, ELECTROCARDIOGRAMS, GASTRO
INTESTINAL AND OTHER X-RAY EXAMINATIONS.  IT IS HARD TO CONCEIVE HOW
SOME OF THESE COULD BE RELEVANT UNDER ANY POSSIBLE THEORY OF THE CASE. 

FN17  CF. HARABEDIAN V. SUPERIOR COURT, 195 CAL. APP. 2D 26, 15 CAL.
RPTR.  420 (DIST. CT. APP.). THIS CASE SHOULD BE COMPARED WITH
LAUBSCHER V. BLAKE, 7 CAL. APP. 2D 376, 46 P.2D 836 (DIST. CT. APP.). 

FN18  FROM JULY 1, 1963, THROUGH JUNE 30, 1964, ALMOST 10,000 MOTOR
VEHICLE PERSONAL INJURY CASES WERE FILED IN THE FEDERAL DISTRICT
COURTS.  ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, ANNUAL
REPORT OF THE DIRECTOR, C2 (1964).  IN THE NATION AT LARGE DURING 1963,
THERE WERE APPROXIMATELY 11,500,000 AUTOMOBILE ACCIDENTS, INVOLVING
APPROXIMATELY 20,000,000 DRIVERS.  NATIONAL SAFETY COUNCIL, ACCIDENT
FACTS, 40 (1964 ED.). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE CLARK JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT THAT UNDER RULE 35(A):  (1) A PLAINTIFF AND A
DEFENDANT HAVE PRECISELY THE SAME RIGHT TO OBTAIN A COURT ORDER FOR
PHYSICAL OR MENTAL EXAMINATION OF THE OTHER PARTY OR PARTIES TO A
LAWSUIT; (2) BEFORE OBTAINING SUCH AN ORDER IT MUST BE SHOWN THAT
PHYSICAL OR MENTAL HEALTH IS "IN CONTROVERSY" AS TO A RELEVANT AND
MATERIAL ISSUE IN THE CASE; AND (3) SUCH AN ORDER "MAY BE MADE ONLY ON
MOTION FOR GOOD CAUSE SHOWN" AFTER "NOTICE TO THE PARTY TO BE EXAMINED
AND TO ALL OTHER PARTIES."  UNLIKE THE COURT, HOWEVER, I THINK THIS
RECORD PLAINLY SHOWS THAT THERE WAS A CONTROVERSY AS TO SCHLAGENHAUF'S
MENTAL AND PHYSICAL HEALTH AND THAT "GOOD CAUSE" WAS SHOWN FOR A
PHYSICAL AND MENTAL EXAMINATION OF HIM, UNLESS FAILURE TO DENY THE
ALLEGATIONS AMOUNTED TO AN ADMISSION THAT THEY WERE TRUE.  WHILE THE
PAPERS FILED IN CONNECTION WITH THIS MOTION WERE INFORMAL, THERE CAN BE
NO DOUBT THAT OTHER PARTIES IN THE LAWSUIT SPECIFICALLY AND
UNEQUIVOCALLY CHARGED THAT SCHLAGENHAUF WAS NOT MENTALLY OR PHYSICALLY
CAPABLE OF OPERATING A MOTOR BUS AT THE TIME OF THE COLLISION, AND THAT
HIS NEGLIGENT OPERATION OF THE BUS CAUSED THE RESULTING INJURIES AND
DAMAGE.  THE OTHER PARTIES FILED AN AFFIDAVIT BASED ON DEPOSITIONS OF
SCHLAGENHAUF AND A WITNESS STATING THAT SCHLAGENHAUF, DRIVING THE BUS
ALONG A FOUR-LANE HIGHWAY IN WHAT APPARENTLY WAS GOOD WEATHER, HAD COME
UPON A TRACTOR-TRAILER DOWN THE ROAD IN FRONT OF HIM.  THE TRACTOR
TRAILER WAS DISPLAYING RED LIGHTS VISIBLE FOR AT LEAST HALF A MILE, AND
SCHLAGENHAUF ADMITTED SEEING THEM.  YET AFTER COMING IN SIGHT OF THE
VEHICLE SCHLAGENHAUF CONTINUED DRIVING THE BUS IN A STRAIGHT LINE,
WITHOUT SLOWING DOWN, FOR A FULL 10 OR 15 SECONDS UNTIL THE BUS STRUCK
THE TRACTOR-TRAILER.  SCHLAGENHAUF ADMITTED ALSO THAT HE HAD BEEN
INVOLVED IN THE VERY SAME KIND OF ACCIDENT ONCE BEFORE.  SCHLAGENHAUF
HAS NEVER AT ANY TIME IN THE PROCEEDINGS DENIED AND HE DOES NOT EVEN
NOW DENY THE CHARGES THAT HIS MENTAL AND PHYSICAL HEALTH AND HIS EYES
AND VISION WERE IMPAIRED AND DEFICIENT. 

IN A COLLISION CASE LIKE THIS ONE, EVIDENCE CONCERNING VERY BAD
EYESIGHT OR IMPAIRED MENTAL OR PHYSICAL HEALTH WHICH MAY AFFECT THE
ABILITY TO DRIVE IS OBVIOUSLY OF THE HIGHEST RELEVANCE.  IT IS EQUALLY
OBVIOUS, I THINK, THAT WHEN A VEHICLE CONTINUES DOWN AN OPEN ROAD AND
SMASHES INTO A TRUCK IN FRONT OF IT ALTHOUGH THE TRUCK IS IN PLAIN
SIGHT AND THERE IS AMPLE TIME AND ROOM TO AVOID COLLISION, THE CHANCES
ARE GOOD THAT THE DRIVER HAS SOME PHYSICAL, MENTAL OR MORAL DEFECT. 
WHEN SUCH A THING HAPPENS TWICE, ONE IS EVEN MORE LIKELY TO ASK, "WHAT
IS THE MATTER WITH THAT DRIVER?  IS HE BLIND OR CRAZY?"  PLAINLY THE
ALLEGATIONS OF THE OTHER PARTIES WERE RELEVANT AND PUT THE QUESTION OF
SCHLAGENHAUF'S HEALTH AND VISION "IN CONTROVERSY."  THE COURT
NEVERTHELESS HOLDS THAT THESE CHARGES WERE NOT A SUFFICIENT BASIS ON
WHICH TO REST A COURT-ORDERED EXAMINATION OF SCHLAGENHAUF.  IT SAYS
WITH REFERENCE TO THE CHARGES OF IMPAIRED PHYSICAL OR MENTAL HEALTH
THAT THE CHARGES ARE "CONCLUSORY."  I HAD NOT THOUGHT THERE WAS
ANYTHING STRANGE ABOUT PLEADINGS BEING "CONCLUSORY" - THAT IS THEIR
FUNCTION, AT LEAST SINCE MODERN RULES OF PROCEDURE HAVE ATTEMPTED TO
SUBSTITUTE SIMPLE PLEADINGS FOR THE COMPLICATED AND REDUNDANT ONES
WHICH LONG KEPT THE COMMON-LAW COURTS IN DISREPUTE.  I THEREFORE CANNOT
AGREE THAT THE CHARGES ABOUT SCHLAGENHAUF'S HEALTH AND VISION WERE NOT
SUFFICIENT UPON WHICH TO BASE AN ORDER UNDER RULE 35(A), PARTICULARLY
SINCE HE WAS A PARTY WHO RAISED EVERY TECHNICAL OBJECTION TO BEING
REQUIRED TO SUBJECT HIMSELF TO AN EXAMINATION BUT NEVER ONCE DENIED
THAT HIS HEALTH AND VISION WERE BAD.  IN THESE CIRCUMSTANCES THE
ALLEGATIONS HERE SHOULD BE MORE THAN ENOUGH TO SHOW PROBABLE CAUSE TO
JUSTIFY A COURT ORDER REQUIRING SOME KIND OF PHYSICAL AND MENTAL
EXAMINATION. 

WHILE I DISSENT FROM THE COURT'S HOLDING THAT NO EXAMINATION AT ALL
WAS JUSTIFIED BY THIS RECORD, I AGREE THAT THE ORDER WAS BROADER THAN
REQUIRED.  I DO SO IN PART BECAUSE OF THE ARGUMENTS MADE IN THE DISSENT
IN SIBBACH V. WILSON & CO., 312 U.S. 1, 16, THAT PHYSICAL REQUIRED BY
LAW.  BY THE SAME REASONING I THINK THE COURTS SHOULD EXERCISE GREAT
RESTRAINT IN ADMINISTERING SUCH A LAW ONCE IT HAS BEEN ENACTED, AS
SIBBACH HELD IT HAD BEEN WHEN RULE 35 WAS APPROVED.  FOR THIS REASON I
AGREE TO THE COURT'S JUDGMENT REMANDING THE CASE IN ORDER TO GIVE
SCHLAGENHAUF, IF HE NOW CHOOSES, AND THE OTHER PARTIES AN OPPORTUNITY
TO PRODUCE ANY RELEVANT FACTS TO AID THE DISTRICT JUDGE IN REFASHIONING
AN ORDER WHICH WILL BE NEITHER TOO BROAD NOR TOO NARROW TO GIVE ALL THE
PARTIES THE RIGHTS WHICH ARE THEIRS. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

WHILE I JOIN THE COURT IN REVERSING THIS JUDGMENT, I WOULD, ON THE
REMAND, DENY ALL RELIEF ASKED UNDER RULE 35. 

I DO NOT SUPPOSE THERE IS ANY LICENSED DRIVER OF A CAR OR A TRUCK WHO
DOES NOT SUFFER FROM SOME AILMENT, WHETHER IT BE ULCERS, BAD EYESIGHT,
ABNORMAL BLOOD PRESSURE, DEAFNESS, LIVER MALFUNCTION, BURSITIS,
RHEUMATISM, OR WHAT NOT.  IF HE OR SHE IS TURNED OVER TO THE
PLAINTIFF'S DOCTORS AND PSYCHOANALYSTS TO DISCOVER THE CAUSE OF THE
MISHAP, THE DOOR WILL BE OPENED FOR GRAVE MISCARRIAGES OF JUSTICE. 
WHEN THE DEFENDANT'S DOCTORS EXAMINE PLAINTIFF, THEY ARE NORMALLY
INTERESTED ONLY IN ANSWERING A SINGLE QUESTION:  DID PLAINTIFF IN FACT
SUSTAIN THE SPECIFIC INJURIES CLAIMED?  BUT PLAINTIFF'S DOCTORS WILL
NATURALLY BE INCLINED TO GO ON A FISHING EXPEDITION IN SEARCH OF
ANYTHING WHICH WILL TEND TO PROVE THAT THE DEFENDANT WAS UNFIT TO
PERFORM THE ACTS WHICH RESULTED IN THE PLAINTIFF'S INJURY.  AND A
DOCTOR FOR A FEE CAN EASILY DISCOVER SOMETHING WRONG WITH ANY PATIENT -
A CONDITION THAT IN PREJUDICED MEDICAL EYES MIGHT HAVE CAUSED THE
ACCIDENT.  ONCE DEFENDANTS ARE TURNED OVER TO MEDICAL OR PSYCHIATRIC
CLINICS FOR AN ANALYSIS OF THEIR PHYSICAL WELL-BEING AND THE CONDITION
OF THEIR PSYCHE, THE EFFECTIVE TRIAL WILL BE HELD THERE AND NOT BEFORE
THE JURY.  THERE ARE NO LAWYERS IN THOSE CLINICS TO STOP THE DOCTOR
FROM PROBING THIS ORGAN OR THAT ONE, TO HALT A FURTHER INQUIRY, TO
OBJECT TO A LINE OF QUESTIONING.  AND THERE IS NO JUDGE TO SIT AS
ARBITER.  THE DOCTOR OR THE PSYCHIATRIST HAS A HOLIDAY IN THE PRIVACY
OF HIS OFFICE.  THE DEFENDANT IS AT THE DOCTOR'S (OR PSYCHIATRIST'S)
MERCY; AND HIS REPORT MAY EITHER OVERAWE OR CONFUSE THE JURY AND
PREVENT A FAIR TRIAL. 

THE COURT IN SIBBACH V. WILSON & CO., 312 U.S. 1, WAS DIVIDED WHEN IT
CAME TO SUBMISSION OF A PLAINTIFF TO A COMPULSORY MEDICAL EXAMINATION. 
THE DIVISION WAS NOT OVER THE CONSTITUTIONAL POWER TO REQUIRE IT BUT
ONLY AS TO WHETHER CONGRESS HAD AUTHORIZED A RULE TO THAT EFFECT.  I
ACCEPT THAT POINT AS ONE GOVERNED BY STARE DECISIS.  BUT NO DECISION
THAT WHEN A PLAINTIFF CLAIMS DAMAGES HIS "MENTAL OR PHYSICAL CONDITION"
IS "IN CONTROVERSY," WITHIN THE MEANING OF RULE 35, GOVERNS THE PRESENT
CASE.  THE PLAINTIFF BY SUING PUTS THOSE ISSUES "IN CONTROVERSY."  A
PLAINTIFF, BY COMING INTO COURT AND ASSERTING THAT HE HAS SUFFERED AN
INJURY AT THE HANDS OF THE DEFENDANT, HAS THEREBY PUT HIS PHYSICAL OR
MENTAL CONDITION "IN CONTROVERSY."  THUS IT MAY BE ONLY FAIR TO PROVIDE
THAT HE MAY NOT BE PERMITTED TO RECOVER HIS JUDGMENT UNLESS HE PERMITS
AN INQUIRY INTO THE TRUE NATURE OF HIS CONDITION. 

A DEFENDANT'S PHYSICAL AND MENTAL CONDITION IS NOT, HOWEVER,
IMMEDIATELY AND DIRECTLY "IN CONTROVERSY" IN A NEGLIGENCE SUIT.  THE
ISSUE IS WHETHER HE WAS NEGLIGENT.  HIS PHYSICAL OR MENTAL CONDITION
MAY OF COURSE BE RELEVANT TO THAT ISSUE; AND HE MAY BE QUESTIONED
CONCERNING IT AND VARIOUS METHODS OF DISCOVERY CAN BE USED.  BUT I BALK
AT SAYING THOSE ISSUES ARE "IN CONTROVERSY" WITHIN THE MEANING OF RULE
35 IN EVERY NEGLIGENCE SUIT OR THAT THEY MAY BE PUT "IN CONTROVERSY" BY
THE ADDITION OF A FEW WORDS IN THE COMPLAINT.  AS I HAVE SAID, SIBBACH
PROCEEDED ON THE BASIS THAT A PLAINTIFF WHO SEEKS A DECREE OF A FEDERAL
COURT FOR HIS DAMAGES MAY NOT CONCEAL OR MAKE DIFFICULT THE PROOF OF
THE CLAIM HE MAKES.  THE DEFENDANT, HOWEVER, IS DRAGGED THERE; AND TO
FIND "WAIVER" OF THE "INVIOLABILITY OF THE PERSON" (UNION PACIFIC R.
CO. V. BOTSFORD, 141 U.S. 250, 252) IS BEYOND REALITY. 

NEITHER THE COURT NOR CONGRESS UP TO TODAY HAS DETERMINED THAT ANY
PERSON WHOSE PHYSICAL OR MENTAL CONDITION IS BROUGHT INTO QUESTION
DURING SOME LAWSUIT MUST SURRENDER HIS RIGHT TO KEEP HIS PERSON
INVIOLATE.  CONGRESS DID, ACCORDING TO SIBBACH, REQUIRE A PLAINTIFF TO
CHOOSE BETWEEN HIS PRIVACY AND HIS PURSE; BUT BEFORE TODAY IT HAS NOT
BEEN THOUGHT THAT ANY OTHER "PARTY" HAD LOST THIS HISTORIC IMMUNITY. 
CONGRESS AND THIS COURT CAN AUTHORIZE SUCH A RULE.  BUT A RULE SUITED
TO PURPOSES OF DISCOVERY AGAINST DEFENDANTS MUST BE CAREFULLY DRAWN IN
LIGHT OF THE GREAT POTENTIAL OF BLACKMAIL. 

THE ADVISORY COMMITTEE ON RULES FOR CIVIL PROCEDURE IN ITS OCTOBER
1955 REPORT OF PROPOSED AMENDMENTS TO THE RULES OF CIVIL PROCEDURE FOR
THE UNITED STATES DISTRICT COURTS PROPOSED THAT RULE 35 BE BROADENED TO
INCLUDE SITUATIONS WHERE THE MENTAL OR PHYSICAL CONDITION OR "THE BLOOD
RELATIONSHIP" OF A PARTY, OR "OF AN AGENT OR A PERSON IN THE CUSTODY OR
UNDER THE LEGAL CONTROL OF A PARTY," IS "IN CONTROVERSY."  WE DID NOT
ADOPT THAT RULE IN ITS BROADENED FORM.  BUT CONCEDEDLY THE ISSUE WITH
WHICH WE ARE NOW CONCERNED WAS NOT EXPOSED.  IT NEEDS, IN MY OPINION,
FULL EXPOSURE SO THAT IF THE RULE IS TO BE APPLIED TO DEFENDANTS AS
WELL AS TO PLAINTIFFS, SAFEGUARDS CAN BE PROVIDED IN THE RULE ITSELF
AGAINST THE AWFUL RISKS OF BLACKMAIL THAT EXIST IN A RULE OF THAT
BREADTH.    THIS IS A PROBLEM THAT WE SHOULD REFER TO THE CIVIL RULES
COMMITTEE OF THE JUDICIAL CONFERENCE SO THAT IF MEDICAL AND PSYCHIATRIC
CLINICS ARE TO BE USED IN DISCOVERY AGAINST DEFENDANTS - WHETHER IN
NEGLIGENCE, LIBEL, OR CONTRACT CASES - THE STANDARDS AND CONDITIONS
WILL BE DISCRIMINATING AND PRECISE.  IF THE BUS DRIVER IN THE INSTANT
CASE WERE NOT A DEFENDANT, COULD HE BE EXAMINED BY DOCTORS AND
PSYCHIATRISTS?  SEE KROPP V. GENERAL DYNAMICS CORP., 202 F. SUPP. 207;
13 BUFFALO L. REV. 623 (1964).  LINES MUST IN TIME BE DRAWN; AND I
THINK THE NEW CIVIL RULES COMMITTEE IS BETTER EQUIPPED THAN WE ARE TO
DRAW THEM INITIALLY.    MR. JUSTICE HARLAN, DISSENTING. 

IN MY VIEW THE COURT'S HOLDING THAT MANDAMUS LIES IN THIS CASE CANNOT
BE SQUARED WITH THE COURSE OF DECISIONS TO WHICH THE MAJORITY AT THE
THRESHOLD PAYS LIP SERVICE.  ANTE, PP. 109-110.  AS THE COURT
RECOGNIZES, MANDAMUS, LIKE THE OTHER EXTRAORDINARY WRITS, IS AVAILABLE
TO CORRECT ONLY THOSE DECISIONS OF INFERIOR COURTS WHICH INVOLVE A
"USURPATION OF JUDICIAL POWER" OR, WHAT IS TANTAMOUNT THERETO, "A CLEAR
ABUSE OF DISCRETION"; SUCH A WRIT "IS NOT TO BE USED AS A SUBSTITUTE
FOR APPEAL."  IBID. 

MANDAMUS IS FOUND TO BE AN APPROPRIATE REMEDY IN THIS INSTANCE,
HOWEVER, BECAUSE (1) PETITIONER'S CHALLENGE WAS BASED ON AN ASSERTED
LACK OF POWER IN THE DISTRICT COURT TO ISSUE THE EXAMINATION ORDER, AND
(2) THAT BEING SO, THE COURT OF APPEALS HAD THE RIGHT ALSO TO INQUIRE
INTO THE APPLICATION OF THE "IN CONTROVERSY" AND "GOOD CAUSE"
REQUIREMENTS OF RULE 35(A), PARTICULARLY SINCE THOSE ISSUES, LIKE THE
QUESTION OF "POWER," WERE MATTERS OF "FIRST IMPRESSION" WHICH IN "THESE
SPECIAL CIRCUMSTANCES" SHOULD BE DETERMINED BY THE COURT OF APPEALS "SO
AS TO AVOID PIECEMEAL LITIGATION AND TO SETTLE NEW AND IMPORTANT
PROBLEMS."  ANTE, P. 111. 

FOR ME THIS REASONING IS UNACCEPTABLE.  OF COURSE A COURT OF APPEALS
WHEN CONFRONTED WITH A SUBSTANTIAL CHALLENGE TO THE POWER OF A DISTRICT
COURT TO ACT IN THE PREMISES MAY PROCEED TO EXAMINE THAT QUESTION
WITHOUT AWAITING ITS EMBODIMENT IN A FINAL JUDGMENT, AS THE COURT OF
APPEALS DID HERE BY ISSUING AN ORDER TO SHOW CAUSE WHY A WRIT OF
MANDAMUS SHOULD NOT ISSUE.  BUT ONCE IT IS DETERMINED THAT THE
CHALLENGED POWER DID EXIST, AND THAT THE DISTRICT COURT ACTED WITHIN
THE LIMIT OF THAT POWER, AN EXTRAORDINARY WRIT SHOULD BE DENIED.  I
KNOW OF NO CASE WHICH SUGGESTS THAT A COURT OF APPEALS' RIGHT TO
CONSIDER SUCH A QUESTION AT AN INTERLOCUTORY STAGE OF THE LITIGATION
ALSO DRAWS TO THE COURT THE RIGHT TO CONSIDER OTHER QUESTIONS - HERE
THE "IN CONTROVERSY" AND "GOOD CAUSE" ISSUES - WHICH OTHERWISE WOULD
NOT BE EXAMINABLE UPON A PETITION FOR AN EXTRAORDINARY WRIT.  INDEED,
WERE AN EXTRAORDINARY WRIT TO ISSUE FOLLOWING A DETERMINATION THAT THE
DISTRICT COURT LACKED POWER, THAT WOULD PUT AN END TO THE LITIGATION
AND THESE QUESTIONS WOULD NEVER BE REACHED.  AND, AS THE COURT
CORRECTLY STATES, THE FACT THAT "HARDSHIP MAY RESULT FROM DELAY AND
PERHAPS UNNECESSARY TRIAL," ANTE, P. 110, IS NOT A FACTOR THAT MAKES
FOR THE ISSUANCE OF SUCH A WRIT. 

MANIFESTLY, TODAY'S PROCEDURAL HOLDING, WHEN STRIPPED OF ITS SUGAR
COATING, IS BORN OF THE COURT'S BELIEF THAT THE PETITIONER SHOULD NOT
BE EXPOSED TO THE RIGORS OF THESE EXAMINATIONS BEFORE THE PROPER
"GUIDELINES" HAVE BEEN ESTABLISHED BY THIS TRIBUNAL.  UNDERSTANDABLE AS
THAT POINT OF VIEW MAY BE, IT CAN ONLY BE INDULGED AT THE EXPENSE OF
MAKING A DEEP INROAD INTO THE FIRMLY ESTABLISHED FEDERAL POLICY WHICH,
WITH NARROW EXCEPTIONS, (FN1) PERMITS APPELLATE REVIEW ONLY OF THE
FINAL JUDGMENTS OF DISTRICT COURTS.  TO BE SURE THE COURT IS AT PAINS
TO WARN THAT WHAT IS DONE TODAY PUTS AN END TO FUTURE "INTERLOCUTORY"
REVIEW OF RULE 35 QUESTIONS.  ANTE, P. 112.  NEVERTHELESS, I FIND IT
HARD TO ESCAPE THE CONCLUSION THAT THIS DECISION MAY OPEN THE DOOR TO
THE EXTRAORDINARY WRITS BEING USED TO TEST ANY QUESTION OF "FIRST
IMPRESSION," IF IT CAN BE GEARED TO AN ALLEGED LACK OF "POWER" IN THE
DISTRICT COURT.  AS SUCH, IT SEEMS TO ME OUT OF KEEPING WITH THE RULE
OF "FINALITY," WITH RESPECT TO WHICH CONGRESS, WISELY I THINK, HAS BEEN
WILLING TO MAKE ONLY CAUTIOUS EXCEPTIONS.  (FN2) 

THE COURT OF APPEALS HAVING CORRECTLY CONCLUDED, AS THIS COURT NOW
HOLDS AND AS I AGREE, THAT THE DISTRICT COURT HAD POWER TO ORDER THE
PHYSICAL AND MENTAL EXAMINATIONS OF THIS PETITIONER, AND SINCE I
BELIEVE THAT THERE WAS NO CLEAR ABUSE OF DISCRETION IN ITS SO ACTING, I
THINK THE LOWER COURT WAS QUITE RIGHT IN DENYING MANDAMUS, AND I WOULD
AFFIRM ITS JUDGMENT ON THAT BASIS. 

FN1  SEE, E.G., 28 U.S.C. SECS. 1292(A)(1), (B) (1958 ED.). 

FN2  SEE NOTE 1, SUPRA.
..END :




















PETROLEUM WORKERS V. AMERICAN OIL CO. 379 U.S. 130 


NO. 55.  ARGUED NOVEMBER 9, 1964.  - DECIDED NOVEMBER 23, 1964.  - 324
F.2D 903, AFFIRMED BY AN EQUALLY DIVIDED COURT. 


INDEPENDENT PETROLEUM WORKERS OF AMERICA, INC. V. AMERICAN OIL CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














COLORADO INTERSTATE GAS CO. V. STATE CORPORATION COMMISSION OF KANSAS
379 U.S. 131 


NO. 75.  DECIDED NOVEMBER 23, 1964.* - APPEALS DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 192 KAN. 1, 386 P.2D 266; 192 KAN. 29, 386
P.2D 288. 

*TOGETHER WITH NO. 83, NORTHERN NATURAL GAS CO. ET AL. V. STATE
CORPORATION COMMISSION OF KANSAS ET AL., AND NO. 140, KANSAS-NEBRASKA
NATURAL GAS CO., INC. V. STATE CORPORATION COMMISSION OF KANSAS ET AL.,
ALSO ON APPEAL FROM THE SAME COURT. 


COLORADO INTERSTATE GAS CO. V. STATE CORPORATION COMMISSION OF KANSAS ET
AL. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEALS ARE DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEALS WERE
TAKEN AS PETITIONS FOR WRITS OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :





NORTHWESTERN PACIFIC RAILROAD CO. V. INTERSTATE COMMERCE COMMISSION 379
U.S. 132 


NO. 381.  DECIDED NOVEMBER 23, 1964.  - 228 F. SUPP. 690, AFFIRMED. 


NORTHWESTERN PACIFIC RAILROAD CO. V. INTERSTATE COMMERCE COMMISSION ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :
















MCCULLOCH V. CALIFORNIA FRANCHISE TAX BOARD 379 U.S. 133 


NO. 472.  DECIDED NOVEMBER 23, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  61 CAL. 2D 186, 390
P.2D 412. 


MCCULLOCH V. CALIFORNIA FRANCHISE TAX BOARD. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















BRULOTTE V. THYS CO. 379 U.S. 29 


NO. 20.  ARGUED OCTOBER 20, 1964.  - DECIDED NOVEMBER 16, 1964.  - 62
WASH. 2D 284, 382 P.2D 271, REVERSED. 


THE ROYALTY PROVISIONS OF A PATENT-LICENSING AGREEMENT WHICH PROVIDES
FOR ROYALTIES FOR THE USE OF MACHINES INCORPORATING CERTAIN PATENTS ARE
NOT ENFORCEABLE FOR THE PERIOD BEYOND THE EXPIRATION OF THE LAST PATENT
INCORPORATED IN THE MACHINE.  AUTOMATIC RADIO CO. V. HAZELTINE, 339
U.S. 827, DISTINGUISHED.  PP. 30-34. 

BRULOTTE ET AL. V. THYS CO. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, OWNER OF VARIOUS PATENTS FOR HOP-PICKING, SOLD A MACHINE
TO EACH OF THE PETITIONERS FOR A FLAT SUM (FN1) AND ISSUED A LICENSE
FOR ITS USE.  UNDER THAT LICENSE THERE IS PAYABLE A MINIMUM ROYALTY OF
$500 FOR EACH HOP-PICKING SEASON OR $3.33 1/3 PER 200 POUNDS OF DRIED
HOPS HARVESTED BY THE MACHINE, WHICHEVER IS GREATER.  THE LICENSES BY
THEIR TERMS MAY NOT BE ASSIGNED NOR MAY THE MACHINES BE REMOVED FROM
YAKIMA COUNTY.  THE LICENSES ISSUED TO PETITIONERS LISTED 12 PATENTS
RELATING TO HOP-PICKING MACHINES; (FN2) BUT ONLY SEVEN WERE
INCORPORATED INTO THE MACHINES SOLD TO AND LICENSED FOR USE BY
PETITIONERS.  OF THOSE SEVEN ALL EXPIRED ON OR BEFORE 1957.  BUT THE
LICENSES ISSUED BY RESPONDENT TO THEM (FN3) CONTINUED FOR TERMS BEYOND
THAT DATE. 

PETITIONERS REFUSED TO MAKE ROYALTY PAYMENTS ACCRUING BOTH BEFORE AND
AFTER THE EXPIRATION OF THE PATENTS.  THIS SUIT FOLLOWED.  ONE DEFENSE
WAS MISUSE OF THE PATENTS THROUGH EXTENSION OF THE LICENSE AGREEMENTS
BEYOND THE EXPIRATION DATE OF THE PATENTS.  THE TRIAL COURT RENDERED
JUDGMENT FOR RESPONDENT AND THE SUPREME COURT OF WASHINGTON AFFIRMED. 
62 WASH. 2D 284, 382 P.2D 271.  THE CASE IS HERE ON A WRIT OF
CERTIORARI.  376 U.S. 905. 

WE CONCLUDE THAT THE JUDGMENT BELOW MUST BE REVERSED INSOFAR AS IT
ALLOWS ROYALTIES TO BE COLLECTED WHICH ACCRUED AFTER THE LAST OF THE
PATENTS INCORPORATED INTO THE MACHINES HAD EXPIRED. 

THE CONSTITUTION BY ART. I, SEC. 8 AUTHORIZES CONGRESS TO SECURE "FOR
LIMITED TIMES" TO INVENTORS "THE EXCLUSIVE RIGHT" TO THEIR
DISCOVERIES.  CONGRESS EXERCISED THAT POWER BY 35 U.S.C. SEC. 154 WHICH
PROVIDES IN PART AS FOLLOWS: 

"EVERY PATENT SHALL CONTAIN A SHORT TITLE OF THE INVENTION AND A
GRANT TO THE PATENTEE, HIS HEIRS OR ASSIGNS, FOR THE TERM OF SEVENTEEN
YEARS, OF THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OR SELLING
THE INVENTION THROUGHOUT THE UNITED STATES, REFERRING TO THE
SPECIFICATION FOR THE PARTICULARS THEREOF  ...  ." 

THE RIGHT TO MAKE, THE RIGHT TO SELL, AND THE RIGHT TO USE "MAY BE
GRANTED OR CONFERRED SEPARATELY BY THE PATENTEE."  ADAMS V. BURKE, 17
WALL.  453, 456.  BUT THESE RIGHTS BECOME PUBLIC PROPERTY ONCE THE 17
YEAR PERIOD EXPIRES.  SEE SINGER MFG. CO. V. JUNE MFG. CO., 163 U.S.
169, 185; KELLOGG CO. V. NATIONAL BISCUIT CO., 305 U.S. 111, 118.  AS
STATED BY CHIEF JUSTICE STONE, SPEAKING FOR THE COURT IN SCOTT PAPER
CO. V. MARCALUS CO., 326 U.S. 249, 256: 

"  ...  ANY ATTEMPTED RESERVATION OR CONTINUATION IN THE PATENTEE OR
THOSE CLAIMING UNDER HIM OF THE PATENT MONOPOLY, AFTER THE PATENT
EXPIRES, WHATEVER THE LEGAL DEVICE EMPLOYED, RUNS COUNTER TO THE POLICY
AND PURPOSE OF THE PATENT LAWS." 

THE SUPREME COURT OF WASHINGTON HELD THAT IN THE PRESENT CASE THE
PERIOD DURING WHICH ROYALTIES WERE REQUIRED WAS ONLY "A REASONABLE
AMOUNT OF TIME OVER WHICH TO SPREAD THE PAYMENTS FOR THE USE OF THE
PATENT."  62 WASH. 2D, AT 291, 382 P.2D, AT 275.  BUT THERE IS
INTRINSIC EVIDENCE THAT THE AGREEMENTS WERE NOT DESIGNED WITH THAT
LIMITED VIEW.  AS WE HAVE SEEN, (FN4) THE PURCHASE PRICE IN EACH CASE
WAS A FLAT SUM, THE ANNUAL PAYMENTS NOT BEING PART OF THE PURCHASE
PRICE BUT ROYALTIES FOR USE OF THE MACHINE DURING THAT YEAR.  THE
ROYALTY PAYMENTS DUE FOR THE POST-EXPIRATION PERIOD ARE BY THEIR TERMS
FOR USE DURING THAT PERIOD, AND ARE NOT DEFERRED PAYMENTS FOR USE
DURING THE PRE-EXPIRATION PERIOD.  NOR IS THE CASE LIKE THE
HYPOTHETICAL ONES PUT TO US WHERE NON-PATENTED ARTICLES ARE MARKETED AT
PRICES BASED ON USE.  THE MACHINES IN ISSUE HERE WERE PATENTED ARTICLES
AND THE ROYALTIES EXACTED WERE THE SAME FOR THE POST-EXPIRATION PERIOD
AS THEY WERE FOR THE PERIOD OF THE PATENT.  THAT IS PECULIARLY
SIGNIFICANT IN THIS CASE IN VIEW OF OTHER PROVISIONS OF THE LICENSE
AGREEMENTS.  THE LICENSE AGREEMENTS PREVENT ASSIGNMENT OF THE MACHINES
OR THEIR REMOVAL FROM YAKIMA COUNTY AFTER, AS WELL AS BEFORE, THE
EXPIRATION OF THE PATENTS. 

THOSE RESTRICTIONS ARE APT AND PERTINENT TO PROTECTION OF THE PATENT
MONOPOLY; AND THEIR APPLICABILITY TO THE POST-EXPIRATION PERIOD IS A
TELLTALE SIGN THAT THE LICENSOR WAS USING THE LICENSES TO PROJECT ITS
MONOPOLY BEYOND THE PATENT PERIOD.  THEY FORCEFULLY NEGATE THE
SUGGESTION THAT WE HAVE HERE A BARE ARRANGEMENT FOR A SALE OR A LEASE
AT AN UNDETERMINED PRICE, BASED ON USE.  THE SALE OR LEASE OF
UNPATENTED MACHINES ON LONG-TERM PAYMENTS BASED ON A DEFERRED PURCHASE
PRICE OR ON USE WOULD PRESENT WHOLLY DIFFERENT CONSIDERATIONS.  THOSE
ARRANGEMENTS SELDOM RISE TO THE LEVEL OF A FEDERAL QUESTION.  BUT
PATENTS ARE IN THE FEDERAL DOMAIN; AND "WHATEVER THE LEGAL DEVICE
EMPLOYED" (SCOTT PAPER CO. V. MARCALUS CO., SUPRA, AT 256) A PROJECTION
OF THE PATENT MONOPOLY AFTER THE PATENT EXPIRES IS NOT ENFORCEABLE. 
THE PRESENT LICENSES DRAW NO LINE BETWEEN THE TERM OF THE PATENT AND
THE POST-EXPIRATION PERIOD.  THE SAME PROVISIONS AS RESPECTS BOTH USE
AND ROYALTIES ARE APPLICABLE TO EACH.  THE CONTRACTS ARE, THEREFORE, ON
THEIR FACE A BALD ATTEMPT TO EXACT THE SAME TERMS AND CONDITIONS FOR
THE PERIOD AFTER THE PATENTS HAVE EXPIRED AS THEY DO FOR THE MONOPOLY
PERIOD.  WE ARE, THEREFORE, UNABLE TO CONJECTURE WHAT THE BARGAINING
POSITION OF THE PARTIES MIGHT HAVE BEEN AND WHAT RESULTANT ARRANGEMENT
MIGHT HAVE EMERGED HAD THE PROVISION FOR POST-EXPIRATION ROYALTIES BEEN
DIVORCED FROM THE PATENT AND NOWISE SUBJECT TO ITS LEVERAGE. 

IN LIGHT OF THOSE CONSIDERATIONS, WE CONCLUDE THAT A PATENTEE'S USE
OF A ROYALTY AGREEMENT THAT PROJECTS BEYOND THE EXPIRATION DATE OF THE
PATENT IS UNLAWFUL PER SE.  IF THAT DEVICE WERE AVAILABLE TO PATENTEES,
THE FREE MARKET VISUALIZED FOR THE POST-EXPIRATION PERIOD WOULD BE
SUBJECT TO MONOPOLY INFLUENCES THAT HAVE NO PROPER PLACE THERE. 

AUTOMATIC RADIO CO. V. HAZELTINE, 339 U.S. 827, IS NOT IN POINT. 
WHILE SOME OF THE PATENTS UNDER THAT LICENSE APPARENTLY HAD EXPIRED,
THE ROYALTIES CLAIMED WERE NOT FOR A PERIOD WHEN ALL OF THEM HAD
EXPIRED.  (FN5)  THAT LICENSE COVERED SEVERAL HUNDRED PATENTS AND THE
ROYALTY WAS BASED ON THE LICENSEE'S SALES, EVEN WHEN NO PATENTS WERE
USED.  THE COURT HELD THAT THE COMPUTATION OF ROYALTY PAYMENTS BY THAT
FORMULA WAS A CONVENIENT AND REASONABLE DEVICE.  WE DECLINE THE
INVITATION TO EXTEND IT SO AS TO PROJECT THE PATENT MONOPOLY BEYOND THE
17-YEAR PERIOD. 

A PATENT EMPOWERS THE OWNER TO EXACT ROYALTIES AS HIGH AS HE CAN
NEGOTIATE WITH THE LEVERAGE OF THAT MONOPOLY.  BUT TO USE THAT LEVERAGE
TO PROJECT THOSE ROYALTY PAYMENTS BEYOND THE LIFE OF THE PATENT IS
ANALOGOUS TO AN EFFORT TO ENLARGE THE MONOPOLY OF THE PATENT BY TIEING
THE SALE OR USE OF THE PATENTED ARTICLE TO THE PURCHASE OR USE OF
UNPATENTED ONES.  SEE ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S.
436; MERCOID CORP. V. MID-CONTINENT INV. CO., 320 U.S. 661, 664-665,
AND CASES CITED.  THE EXACTION OF ROYALTIES FOR USE OF A MACHINE AFTER
THE PATENT HAS EXPIRED IS AN ASSERTION OF MONOPOLY POWER IN THE POST
EXPIRATION PERIOD WHEN, AS WE HAVE SEEN, THE PATENT HAS ENTERED THE
PUBLIC DOMAIN.  WE SHARE THE VIEWS OF THE COURT OF APPEALS IN AR-TIK
SYSTEMS, INC. V. DAIRY QUEEN, INC., 302 F.2D 496, 510, THAT AFTER
EXPIRATION OF THE LAST OF THE PATENTS INCORPORATED IN THE MACHINES "THE
GRANT OF PATENT MONOPOLY WAS SPENT" AND THAT AN ATTEMPT TO PROJECT IT
INTO ANOTHER TERM BY CONTINUATION OF THE LICENSING AGREEMENT IS
UNENFORCEABLE.  REVERSED. 

FN1  ONE PETITIONER PAID $3,125 FOR "TITLE" TO A MACHINE, THE OTHER
PETITIONER, $3,300. 

FN2  ALL BUT ONE OF THE 12 EXPIRED PRIOR TO THE EXPIRATION OF THE
LICENSE AGREEMENTS.  THE EXCEPTION WAS A PATENT WHOSE MECHANISM WAS NOT
INCORPORATED IN THESE MACHINES. 

FN3  PETITIONERS PURCHASED THEIR MACHINES FROM PRIOR PURCHASERS UNDER
TRANSFER AGREEMENTS TO WHICH RESPONDENT WAS A PARTY. 

FN4  NOTE 1, SUPRA. 

FN5  THE PETITION FOR CERTIORARI DID NOT IN THE QUESTIONS PRESENTED
RAISE THE QUESTION OF THE EFFECT OF THE EXPIRATION OF ANY OF THE
PATENTS ON THE ROYALTY AGREEMENT.  ALSO, THE HAZELTINE LICENSE, WHICH
COVERED MANY PATENTS, EXACTED ROYALTIES FOR PATENTS NEVER USED.  BUT
THAT ASPECT OF THE CASE IS LIKEWISE NOT APPOSITE HERE FOR THE PRESENT
LICENSEES ARE FARMERS USING THE MACHINES, NOT MANUFACTURERS BUYING THE
RIGHT TO INCORPORATE PATENTS INTO THEIR MANUFACTURED PRODUCTS. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT HOLDS THAT THE THYS COMPANY UNLAWFULLY MISUSED ITS PATENT
MONOPOLY BY CONTRACTING WITH PURCHASERS OF ITS PATENTED MACHINES FOR
ROYALTY PAYMENTS BASED ON USE BEYOND THE PATENT TERM.  I THINK THAT
MORE DISCRIMINATING ANALYSIS THAN THE COURT HAS SEEN FIT TO GIVE THIS
CASE PRODUCES A DIFFERENT RESULT. 

THE PATENT LAWS PROHIBIT POST-EXPIRATION RESTRICTIONS ON THE USE OF
PATENTED IDEAS; THEY HAVE NO BEARING ON USE RESTRICTIONS UPON
NONPATENTED, TANGIBLE MACHINES.  WE HAVE BEFORE US A MIXED CASE
INVOLVING THE SALE OF A TANGIBLE MACHINE WHICH INCORPORATES AN
INTANGIBLE, PATENTED IDEA.  MY EFFORT IN WHAT FOLLOWS IS TO SEPARATE
OUT THESE TWO NOTIONS, TO SHOW THAT THERE IS NO SUBSTANTIAL RESTRICTION
ON THE USE OF THE THYS IDEA, AND TO DEMONSTRATE THAT WHAT SLIGHT
RESTRICTION THERE MAY BE IS LESS OBJECTIONABLE THAN OTHER POST
EXPIRATION USE RESTRICTIONS WHICH ARE CLEARLY ACCEPTABLE. 

           I. 

IT SURELY CANNOT BE QUESTIONED THAT THYS COULD HAVE LAWFULLY SET A
FIXED PRICE FOR ITS MACHINE AND EXTENDED CREDIT TERMS BEYOND THE PATENT
PERIOD.  IT IS EQUALLY UNQUESTIONABLE, I TAKE IT, THAT IF THYS HAD HAD
NO PATENT OR IF ITS PATENT HAD EXPIRED, IT COULD HAVE SOLD ITS MACHINES
AT A FLEXIBLE, UNDETERMINED PRICE BASED ON USE; FOR EXAMPLE, A
PHONOGRAPH RECORD MANUFACTURER COULD SELL A RECORDING OF A SONG IN THE
PUBLIC DOMAIN TO A JUKEBOX OWNER FOR AN UNDETERMINED CONSIDERATION
BASED ON THE NUMBER OF TIMES THE RECORD WAS PLAYED. 

CONVERSELY IT SHOULD BE EQUALLY CLEAR THAT IF THYS LICENSED ANOTHER
MANUFACTURER TO PRODUCE HOP-PICKING MACHINES INCORPORATING ANY OF THE
THYS PATENTS, ROYALTIES COULD NOT BE EXACTED BEYOND THE PATENT TERM. 
SUCH ROYALTIES WOULD RESTRICT THE MANUFACTURER'S EXPLOITATION OF THE
IDEA AFTER IT FALLS INTO THE PUBLIC DOMAIN, AND NO SUCH RESTRICTION
SHOULD BE VALID.  TO GIVE ANOTHER EXAMPLE UNCONNECTED WITH A TANGIBLE
MACHINE, A SONG WRITER COULD CHARGE A ROYALTY EVERY TIME HIS SONG - HIS
IDEA - WAS SUNG FOR PROFIT DURING THE PERIOD OF COPYRIGHT.  BUT ONCE
THE SONG FALLS INTO THE PUBLIC DOMAIN EACH AND EVERY MEMBER OF THE
PUBLIC SHOULD BE FREE TO SING IT. 

IN FACT THYS SELLS BOTH A MACHINE AND THE USE OF AN IDEA.  THE
COMPANY SHOULD BE FREE TO RESTRICT THE USE OF ITS MACHINE, AS IN THE
FIRST TWO EXAMPLES GIVEN ABOVE.  IT MAY NOT RESTRICT THE USE OF ITS
PATENTED IDEA ONCE IT HAS FALLEN INTO THE PUBLIC DOMAIN.  WHETHER IT
HAS DONE SO MUST BE THE POINT OF INQUIRY. 

CONSIDER THE SITUATION AS OF THE DAY THE PATENT MONOPOLY ENDS.  ANY
MANUFACTURER IS COMPLETELY FREE TO PRODUCE THYS-TYPE HOP-PICKERS.  THE
FARMER WHO HAS PREVIOUSLY PURCHASED A THYS MACHINE IS FREE TO BUY AND
USE ANY OTHER KIND OF MACHINE WHETHER OR NOT IT INCORPORATES THE THYS
IDEA, OR MAKE ONE HIMSELF IF HE IS ABLE.  OF COURSE, HE IS NOT ENTITLED
AS AGAINST THYS TO THE FREE USE OF ANY THYS MACHINE.  THE COURT'S
OPINION MUST THEREFORE ULTIMATELY REST ON THE PROPOSITION THAT THE
PURCHASING FARMER IS RESTRICTED IN USING HIS PARTICULAR MACHINE,
EMBODYING AS IT DOES AN APPLICATION OF THE PATENTED IDEA, BY THE FACT
THAT ROYALTIES ARE TIED DIRECTLY TO USE. 

TO TEST THIS PROPOSITION I AGAIN PUT A HYPOTHETICAL.  ASSUME THAT A
THYS CONTRACT CALLED FOR NEITHER AN INITIAL FLAT-SUM PAYMENT NOR ANY
ANNUAL MINIMUM ROYALTIES; THYS' SOLE RECOMPENSE FOR GIVING UP OWNERSHIP
OF ITS MACHINE WAS A ROYALTY PAYMENT EXTENDING BEYOND THE PATENT TERM
BASED ON USE, WITHOUT ANY REQUIREMENT EITHER TO USE THE MACHINE OR NOT
TO USE A COMPETITOR'S.  A MOMENT'S THOUGHT REVEALS THAT, DESPITE THE
CLEAR RESTRICTION ON USE BOTH BEFORE AND AFTER THE EXPIRATION OF THE
PATENT TERM, THE ARRANGEMENT WOULD INVOLVE NO MISUSE OF PATENT
LEVERAGE.  (FN1)  UNLESS THE COURT'S OPINION RESTS ON TECHNICALITIES OF
CONTRACT DRAFTSMANSHIP AND NOT ON THE ECONOMIC SUBSTANCE OF THE
TRANSACTION, THE DISTINCTION BETWEEN THE HYPOTHETICAL AND THE ACTUAL
CASE LIES ONLY IN THE CUMULATIVE INVESTMENT CONSISTING OF THE INITIAL
AND MINIMUM PAYMENTS INDEPENDENT OF USE, WHICH THE PURCHASER OBLIGATED
HIMSELF TO MAKE TO THYS.  I FAIL TO SEE WHY THIS DISTINGUISHING FEATURE
SHOULD BE CRITICAL.  IF ANYTHING THE INVESTMENT WILL ENCOURAGE THE
PURCHASER TO USE HIS MACHINE IN ORDER TO AMORTIZE THE MACHINE'S FIXED
COST OVER AS LARGE A PRODUCTION BASE AS POSSIBLE.  YET THE GRAVAMEN OF
THE MAJORITY OPINION IS RESTRICTION, NOT ENCOURAGEMENT, OF USE. 

                  II. 

THE ESSENCE OF THE MAJORITY OPINION MAY LIE IN SOME NOTION THAT
"PATENT LEVERAGE" BEING USED BY THYS TO EXACT USE PAYMENTS EXTENDING
BEYOND THE PATENT TERM SOMEHOW ALLOWS THYS TO EXTRACT MORE ONEROUS
PAYMENTS FROM THE FARMERS THAN WOULD OTHERWISE BE OBTAINABLE.  IF THIS
BE THE CASE, THE COURT MUST IN SOME WAY DISTINGUISH LONG-TERM USE
PAYMENTS FROM LONG-TERM INSTALLMENT PAYMENTS OF A FLAT-SUM PURCHASE
PRICE.  FOR THE DANGER WHICH IT SEEMS TO FEAR WOULD APPEAR TO INHERE
EQUALLY IN BOTH, AND AS I READ THE COURT'S OPINION, THE LATTER TYPE OF
ARRANGEMENT IS LAWFUL DESPITE THE FACT THAT FAILURE TO PAY AN
INSTALLMENT UNDER A CONDITIONAL SALES CONTRACT WOULD PERMIT THE SELLER
TO RECAPTURE THE MACHINE, THUS TERMINATING - NOT MERELY RESTRICTING -
THE FARMER'S USE OF IT. FURTHERMORE, SINCE THE JUDGMENTS AGAINST
PETITIONERS WERE BASED ALMOST ENTIRELY ON DEFAULTS IN PAYING THE $500
MINIMUMS AND NOT ON FAILURES TO PAY FOR ABOVE-MINIMUM USE, (FN2) ANY
SUCH DISTINCTION OF EXTENDED USE PAYMENTS AND EXTENDED INSTALLMENTS,
EVEN IF ACCEPTED, WOULD NOT JUSTIFY ERADICATING ALL PETITIONERS'
OBLIGATIONS BEYOND THE PATENT TERM, BUT ONLY THOSE BASED ON USE ABOVE
THE STATED MINIMUMS; FOR THE MINIMUMS BY THEMSELVES, BEING PAYABLE
WHETHER OR NOT A MACHINE HAS BEEN USED, ARE PRECISELY IDENTICAL IN
SUBSTANTIVE ECONOMIC EFFECT TO FLAT INSTALLMENTS. 

IN FACT A DISTINCTION SHOULD NOT BE ACCEPTED BASED ON THE ASSUMPTION
THAT THYS, WHICH EXPLOITS ITS PATENTS BY SELLING ITS PATENTED MACHINES
RATHER THAN LICENSING OTHERS TO MANUFACTURE THEM, CAN USE ITS PATENT
LEVERAGE TO EXACT MORE ONEROUS PAYMENTS FROM FARMERS BY GEARING PRICE
TO USE INSTEAD OF CHARGING A FLAT SUM.  FOUR POSSIBLE SITUATIONS MUST
BE CONSIDERED.  THE PURCHASING FARMER COULD OVERESTIMATE, EXACTLY
ESTIMATE, UNDERESTIMATE, OR HAVE NO FIRM ESTIMATE OF HIS USE
REQUIREMENTS FOR A THYS MACHINE.  IF HE OVERESTIMATES OR EXACTLY
ESTIMATES, THE FARMER WILL BE FULLY AWARE OF WHAT THE MACHINE WILL COST
HIM IN THE LONG RUN, AND IT IS UNREALISTIC TO SUPPOSE THAT IN SUCH
CIRCUMSTANCES HE WOULD BE WILLING TO PAY MORE TO HAVE THE MACHINE ON
USE THAN ON STRAIGHT TERMS.  IF THE FARMER UNDERESTIMATES, THE THOUGHT
MAY BE THAT THYS WILL TAKE ADVANTAGE OF HIM; BUT SURELY THE FARMER IS
IN A BETTER POSITION THAN THYS OR ANYONE ELSE TO ESTIMATE HIS OWN
REQUIREMENTS AND IS HARDLY IN NEED OF THE COURT'S PROTECTION IN THIS
RESPECT.  IF THE FARMER HAS NO FIXED ESTIMATE OF HIS USE REQUIREMENTS
HE MAY HAVE GOOD BUSINESS REASONS ENTIRELY UNCONNECTED WITH "PATENT
LEVERAGE" FOR WANTING PAYMENTS TIED TO USE, AND MAY INDEED BE WILLING
TO PAY MORE IN THE LONG RUN TO OBTAIN SUCH AN ARRANGEMENT.  ONE FINAL
EXAMPLE SHOULD ILLUSTRATE MY POINT: 

AT THE TIME WHEN THE THYS PATENT TERM STILL HAS A FEW YEARS TO RUN, A
FARMER WHO HAS BEEN PICKING HIS HOPS BY HAND COMES INTO THE THYS RETAIL
OUTLET TO INQUIRE ABOUT THE MECHANICAL PICKERS.  THE SALESMAN CONCLUDES
HIS DESCRIPTION OF THE ADVANTAGES OF THE THYS MACHINE WITH THE PRICE
TAG - $20,000.  VALUE TO THE FARMER DEPENDS COMPLETELY ON THE USE HE
WILL DERIVE FROM THE MACHINE; HE IS WILLING TO OBLIGATE HIMSELF ON LONG
CREDIT TERMS TO PAY $10,000, BUT UNLESS THE MACHINE CAN SUBSTANTIALLY
OUTPICK HIS OLD HAND-PICKING METHODS, IT IS WORTH NO MORE TO HIM.  HE
THEREFORE OFFERS TO PAY $2,000 DOWN, $400 ANNUALLY FOR 20 YEARS, AND AN
ADDITIONAL PAYMENT DURING THE CONTRACT TERM FOR ANY PRODUCTION HE CAN
DERIVE FROM THE MACHINE OVER AND ABOVE THE MINIMUM AMOUNT HE COULD PICK
BY HAND.  THYS ACCEPTS, AND BY DOING SO, ACCORDING TO THE MAJORITY,
COMMITS A PER SE MISUSE OF ITS PATENT.  I CANNOT BELIEVE THAT THIS IS
GOOD LAW.  (FN3)

                                       III. 

THE POSSIBILITY REMAINS THAT THE COURT IS BASING ITS DECISION ON THE
TECHNICAL FRAMING OF THE CONTRACT AND WOULD HAVE TREATED THE CASE
DIFFERENTLY IF TITLE HAD BEEN DECLARED TO PASS AT THE TERMINATION
INSTEAD OF THE OUTSET OF THE CONTRACT TERM, OR IF THE USE PAYMENTS HAD
BEEN VERBALLY DISASSOCIATED FROM THE PATENT LICENSES AND DESCRIBED AS A
CONVENIENT MEANS OF SPREADING OUT PAYMENTS FOR THE MACHINE.  IF INDEED
THE IMPACT OF THE OPINION IS THAT THYS MUST REDRAFT ITS CONTRACTS TO
ACHIEVE THE SAME ECONOMIC RESULTS, THE DECISION IS NOT ONLY WRONG, BUT
CONSPICUOUSLY INEFFECTUAL. 

I WOULD AFFIRM. 

FN1  INSTALLMENT OF A PATENTED, COIN-OPERATED WASHING MACHINE IN THE
BASEMENT OF AN APARTMENT BUILDING WITHOUT CHARGE EXCEPT THAT THE
LANDLORD AND HIS TENANTS MUST DEPOSIT 25 CENTS FOR EVERY USE, SHOULD
NOT CONSTITUTE PATENT MISUSE. 

FN2  PETITIONER CHARVET WAS INDEBTED TO THYS ONLY TO THE EXTENT OF
THE MINIMUMS; PETITIONER BRULOTTE WAS IN DEFAULT APPROXIMATELY $4,500
OF WHICH $3,120 WAS ATTRIBUTABLE TO MINIMUMS. 

FN3  THE COURT ALSO ADVERTS TO THE PROVISIONS IN THE LICENSE
AGREEMENTS PROHIBITING "ASSIGNMENT OF THE MACHINES OR THEIR REMOVAL
FROM YAKIMA COUNTY" (ANTE, P. 32) DURING THE TERMS OF THE AGREEMENTS. 
SUCH PROVISIONS, HOWEVER, ARE SURELY APPROPRIATE TO SECURE PERFORMANCE
OF WHAT ARE IN EFFECT CONDITIONAL SALES AGREEMENTS AND THEY DO NOT
ADVANCE THE ARGUMENT FOR PATENT MISUSE. 

FURTHERMORE, IT SHOULD NOT BE OVERLOOKED THAT WE ARE DEALING HERE
WITH A PATENT, NOT AN ANTITRUST, CASE, THERE BEING NO BASIS IN THE
RECORD FOR CONCLUDING THAT THYS' ARRANGEMENTS WITH ITS LICENSEES WERE
SUCH AS TO RUN AFOUL OF THE ANTITRUST LAWS. 
..END :







SCRANTON, GOVERNOR OF PENNSYLVANIA V. DREW 379 U.S. 40 


NO. 201.  DECIDED NOVEMBER 16, 1964.  - 229 F. SUPP. 310, VACATED AND
REMANDED. 


THE JUDGMENT OF THE DISTRICT COURT HOLDING INVALID CERTAIN
PENNSYLVANIA APPORTIONMENT STATUTES AND CONSTITUTIONAL PROVISIONS
VACATED AND CAUSE REMANDED FOR FURTHER CONSIDERATION IN THE LIGHT OF
SUPERVENING DECISIONS.  PP. 40-42. 

SCRANTON, GOVERNOR OF PENNSYLVANIA, ET AL. V. DREW ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE JUDGMENT OF THE DISTRICT COURT APPEALED FROM WAS ENTERED ON APRIL
9, 1964, 229 F. SUPP. 310 (D.C.M.D. PA.).  THE DISTRICT COURT HELD
INVALID UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, THE PENNSYLVANIA REPRESENTATIVE APPORTIONMENT ACT OF
JANUARY 9, 1964, P.L. 1419, 25 PURDON'S PA. STAT. ANN. SECS. 2221-2222
(1963 SUPP., INCLUDING ACTS OF THE 1963 EXTRA SESSION), THE
PENNSYLVANIA SENATORIAL APPORTIONMENT ACT OF JANUARY 9, 1964, P.L.
1432, 25 PURDON'S PA. STAT. ANN. SECS. 2217-2220 (1963 SUPP., INCLUDING
ACTS OF THE 1963 EXTRA SESSION), AND THE PENNSYLVANIA CONSTITUTION'S
LEGISLATIVE APPORTIONMENT PROVISIONS, ART. II, SECS. 16, 17.  THE COURT
RESTRAINED APPELLANTS FROM CONDUCTING ANY FUTURE ELECTIONS UNDER THE
APPORTIONMENT ACTS, BUT STAYED ITS ORDER PENDING THE DISPOSITION OF AN
APPEAL TO THIS COURT.  THEREAFTER ON JUNE 15, 1964, THIS COURT DECIDED
REYNOLDS V. SIMS, 377 U.S. 533, AND COMPANION CASES:  WMCA, INC. V.
LOMENZO, 377 U.S. 633; MARYLAND COMM. FOR FAIR REPRESENTATION V. TAWES,
377 U.S. 656; DAVIS V. MANN, 377 U.S. 678; ROMAN V. SINCOCK, 377 U.S.
695; LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S. 713. 
ON SEPTEMBER 29, 1964, THE SUPREME COURT OF PENNSYLVANIA HANDED DOWN A
DECISION CONSTRUING THE LEGISLATIVE APPORTIONMENT PROVISIONS OF THE
PENNSYLVANIA CONSTITUTION, AND HOLDING THESE PROVISIONS CONSTITUTIONAL
AS CONSTRUED.  THE COURT, HOWEVER, DECLARED INVALID, UNDER THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THE
PENNSYLVANIA LEGISLATIVE APPORTIONMENT LAWS AT ISSUE IN THIS APPEAL. 
BUTCHER V. BLOOM, 415 PA. 438, 203 A.2D 556.  THE PENNSYLVANIA COURT
RETAINED JURISDICTION OF THE CASE, STATING: 

"WE HAVE INDICATED THAT IT IS OUR EXPECTATION THAT THE LEGISLATURE
WILL PROCEED IN TIMELY FASHION TO ENACT REAPPORTIONMENT LAWS WHICH
CONFORM TO CONSTITUTIONAL REQUIREMENTS.  WE MUST RECOGNIZE, HOWEVER,
THAT IF THE GENERAL ASSEMBLY FAILS TO ACT IN A TIMELY FASHION, WE SHALL
BE OBLIGED TO TAKE NECESSARY AFFIRMATIVE ACTION TO INSURE THAT THE 1966
ELECTION OF PENNSYLVANIA LEGISLATORS WILL BE CONDUCTED PURSUANT TO A
CONSTITUTIONALLY VALID PLAN.  PROPER REGARD FOR OUR RESPONSIBILITY
COMPELS US TO RETAIN JURISDICTION OF THIS MATTER PENDING LEGISLATIVE
ACTION. 

"SHOULD THE LEGISLATURE FAIL TO ENACT A CONSTITUTIONALLY VALID PLAN
OF REAPPORTIONMENT AS SOON AS PRACTICAL, BUT NOT LATER THAN SEPTEMBER
1, 1965, WE SHALL TAKE SUCH ACTION AS MAY BE APPROPRIATE IN LIGHT OF
THE THEN EXISTING SITUATION. 

"JURISDICTION RETAINED IN ACCORDANCE WITH THIS OPINION."  ID., AT 468
469, 203 A.2D, AT 573. 

THE JUDGMENT OF THE DISTRICT COURT IS THEREFORE VACATED AND THE CAUSE
IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF THE DECISIONS
SUPERVENING SINCE THE ENTRY OF THE JUDGMENT OF THE DISTRICT COURT. 
VACATED AND REMANDED. 
..END :








BOLES, WARDEN V. STEVENSON 379 U.S. 43 


NO. 298.  DECIDED NOVEMBER 16, 1964.  - CERTIORARI GRANTED; 331 F.2D
939, AFFIRMED AND REMANDED. 


THE DISTRICT COURT GRANTED THE PETITION OF RESPONDENT, WHO HAD BEEN
CONVICTED OF MURDER, FOR A WRIT OF HABEAS CORPUS ON THE GROUND THAT THE
STATE COURT USED AN IMPROPER STANDARD FOR DETERMINING VOLUNTARINESS AND
THAT AN ADMISSION BY RESPONDENT WAS INVOLUNTARY.  THE DISTRICT COURT
ORDERED HIS RELEASE IF THE STATE FAILED TO RETRY HIM WITHIN A
REASONABLE TIME; AND THE COURT OF APPEALS AFFIRMED.  HELD:  WHERE A
DEFENDANT IN A STATE COURT HAS NOT BEEN AFFORDED AN ADEQUATE HEARING ON
THE VOLUNTARINESS OF HIS CONFESSION, HE IS NOT NECESSARILY ENTITLED TO
A NEW TRIAL, BUT HE IS ENTITLED TO A STATE COURT HEARING UNDER
STANDARDS DESIGNED TO INSURE A PROPER RESOLUTION OF THE ISSUE.  JACKSON
V. DENNO, 378 U.S. 368, FOLLOWED.  CASE IS REMANDED TO THE DISTRICT
COURT TO ALLOW THE STATE A REASONABLE TIME TO PROVIDE A HEARING OR A
NEW TRIAL, FAILING WHICH RESPONDENT IS ENTITLED TO HIS RELEASE.  PP. 45
46. 

BOLES, WARDEN V. STEVENSON. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE RESPONDENT, STEVENSON, WAS CONVICTED OF MURDER IN THE FIRST
DEGREE AND SENTENCED TO DEATH IN THE COMMON PLEAS COURT OF CABELL
COUNTY, WEST VIRGINIA.  THE CONVICTION WAS AFFIRMED ON APPEAL BY THE
WEST VIRGINIA SUPREME COURT OF APPEALS.  STATE V. STEVENSON, 147 W.VA.
211, 127 S.E.2D 638.  CERTIORARI WAS DENIED HERE.  372 U.S. 938.  HE
THEN FILED A PETITION FOR HABEAS CORPUS IN THE UNITED STATES DISTRICT
COURT.  STEVENSON V. BOLES, 221 F. SUPP. 411.  THAT COURT ISSUED THE
WRIT ON THE GROUND THAT THE STATE SUPREME COURT OF APPEALS USED AN
ERRONEOUS STANDARD FOR DETERMINING VOLUNTARINESS AND THAT AN ORAL
ADMISSION OF GUILT CONTAINED IN THE TESTIMONY OF THREE STATE POLICE
OFFICERS WAS INVOLUNTARY.  THE DISTRICT COURT ORDERED STEVENSON'S
RELEASE CONDITIONED ON THE FAILURE OF THE STATE TO RETRY THE DEFENDANT
WITHIN A REASONABLE TIME, AND THE COURT OF APPEALS AFFIRMED.  WITHOUT
REACHING THE VOLUNTARINESS OF THE CONFESSION, IT HELD THAT THE
DEFENDANT WAS DENIED A FAIR AND EFFECTIVE RESOLUTION OF THE
VOLUNTARINESS ISSUE AT TRIAL WHEN THE TRIAL COURT FAILED TO HOLD A
PRELIMINARY EXAMINATION ON THIS ISSUE AND FAILED TO SUBMIT IT TO THE
JURY UNDER APPROPRIATE INSTRUCTIONS.  WE GRANT CERTIORARI AND MODIFY
THE ORDER OF THE COURT OF APPEALS TO CONFORM TO OUR SUBSEQUENT DECISION
IN JACKSON V. DENNO, 378 U.S. 368.* 

*THE RESPONDENT'S MOTION TO DISPENSE WITH THE PRINTING OF THE BRIEF
IN OPPOSITION IS GRANTED. 

AT STEVENSON'S TRIAL OFFICER COLEMAN TESTIFIED FOR THE STATE THAT HE,
AND TWO OTHER POLICE OFFICERS, ARRESTED THE DEFENDANT AND TOOK HIM TO
THE ATLANTIC SEA FOOD STORE TO SHOW HIM THE BADLY MUTILATED BODY OF THE
VICTIM.  ON CROSS-EXAMINATION COLEMAN STATED THAT THE DEFENDANT
STRONGLY RESISTED EFFORTS TO CONFRONT HIM WITH THE STILL UNDISTURBED
SCENE OF THE CRIME INSIDE THE BUILDING.  ANOTHER OF THE OFFICERS GAVE
THE DEFENDANT A CHOICE BETWEEN ENTERING THE STORE OR EXPLAINING WHAT HE
KNEW ABOUT THE CRIME.  COLEMAN TESTIFIED THAT THE DEFENDANT THEN
ADMITTED COMMITTING THE CRIME.  AT THE CONCLUSION OF THIS TESTIMONY THE
DEFENSE MOVED TO STRIKE THE ORAL CONFESSION OF GUILT BECAUSE IT "DOES
NOT COMPLY WITH THE RULES COVERING THE INTRODUCTION OF A CONFESSION IN
THAT HE WAS NOT WARNED THAT ANY STATEMENT HE MADE MAY AND WOULD BE USED
AGAINST HIM OR ANY OF THE OTHER REQUIREMENTS ON ENTERING OF A
CONFESSION."  THIS MOTION WAS OVERRULED WITHOUT COMMENT AND WITHOUT A
HEARING ON VOLUNTARINESS.  SUBSEQUENT MOTIONS TO EXCLUDE THE TESTIMONY
OF THE OTHER TWO OFFICERS IN RESPECT TO THE SAME CHALLENGED ADMISSION
OF GUILT WERE SIMILARLY OVERRULED WITHOUT COMMENT.  AFTER THIS
CONFESSION WAS THRICE ADMITTED, THE DEFENDANT TOOK THE STAND IN HIS OWN
DEFENSE AND DENIED EVER HAVING MADE THE ADMISSION TO THE OFFICERS. 

RELYING ON THIS DENIAL, THE STATE SUPREME COURT OF APPEALS RULED THAT
NO PRELIMINARY EXAMINATION WAS REQUIRED IN THIS CASE AND THAT THE
CONFESSION WAS VOLUNTARY. 

THE PRACTICE IN WEST VIRGINIA, WHEN AN OBJECTION TO A CONFESSION IS
INTERPOSED, IS TO HOLD A PRELIMINARY HEARING OUT OF THE PRESENCE OF THE
JURY AT WHICH THE TRIAL JUDGE FULLY DETERMINES THE COERCION ISSUE. 
STATE V. VANCE, 146 W.VA. 925, 124 S.E.2D 252.  IN LIGHT OF THIS
PRACTICE, WE CANNOT ASCERTAIN ON THIS RECORD WHETHER THE TRIAL JUDGE
DECLINED TO HOLD A HEARING AND DECLINED TO RULE EXPLICITLY ON
VOLUNTARINESS BECAUSE HE THOUGHT THERE COULD NOT BE ANY ISSUE IN LIGHT
OF DEFENDANT'S NOT-GUILTY PLEA, BECAUSE HE THOUGHT THE CONFESSION WAS
IN FACT VOLUNTARY, OR BECAUSE HE THOUGHT THE OBJECTIONS WERE INADEQUATE
OR UNTIMELY.  HENCE WE DO NOT KNOW IF THE TRIAL JUDGE DECIDED
VOLUNTARINESS, ONE WAY OR THE OTHER, AND, IF HE DID, WHAT STANDARD WAS
RELIED UPON.  WE THINK THE PROCEDURES WERE NOT "FULLY ADEQUATE TO
INSURE A RELIABLE AND CLEAR-CUT DETERMINATION OF THE VOLUNTARINESS OF
THE CONFESSION."  JACKSON V. DENNO, 378 U.S. 368, 391. 

HENCE WE AGREE WITH THE COURT OF APPEALS THAT THE WRIT SHOULD ISSUE. 
BUT IT DOES NOT FOLLOW THAT THE STATE IS REQUIRED TO ORDER A NEW
TRIAL.  AS WE HELD IN JACKSON, SUPRA, WHERE A STATE DEFENDANT HAS NOT
BEEN GIVEN AN ADEQUATE HEARING UPON THE VOLUNTARINESS OF HIS
CONFESSION, HE IS ENTITLED TO A HEARING IN THE STATE COURTS UNDER
APPROPRIATE PROCEDURES AND STANDARDS DESIGNED TO INSURE A FULL AND
ADEQUATE RESOLUTION OF THIS ISSUE.  "A STATE DEFENDANT SHOULD HAVE THE
OPPORTUNITY TO HAVE ALL ISSUES WHICH MAY BE DETERMINATIVE OF HIS GUILT
TRIED BY A STATE JUDGE OR A STATE JURY UNDER APPROPRIATE STATE
PROCEDURES WHICH CONFORM TO THE REQUIREMENTS OF THE FOURTEENTH
AMENDMENT."  ROGERS V. RICHMOND, 365 U.S. 534, 547-548.  ACCORDINGLY
THE JUDGMENT BELOW IS MODIFIED AND THE CASE IS REMANDED TO THE DISTRICT
COURT TO ALLOW THE STATE A REASONABLE TIME TO AFFORD STEVENSON A
HEARING OR A NEW TRIAL, FAILING WHICH STEVENSON IS ENTITLED TO HIS
RELEASE.  AS SO MODIFIED, THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS
AFFIRMING THE DISTRICT COURT'S JUDGMENT WHICH ORDERED STEVENSON'S
RELEASE CONDITIONED ON THE FAILURE OF THE STATE TO RETRY THE DEFENDANT
WITHIN A REASONABLE TIME. 
..END :







BOYER V. ELKINS 379 U.S. 47 


NO. 438.  DECIDED NOVEMBER 16, 1964.  - APPEAL DISMISSED FOR WANT OF A
PROPERLY PRESENTED FEDERAL QUESTION.  - REPORTED BELOW:  154 COLO. - ,
390 P.2D 460. 


BOYER ET AL. V. ELKINS ET AL. 

APPEAL FROM THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A PROPERLY PRESENTED FEDERAL QUESTION. 
..END :
















ASSOCIATED PRESS V. WALKER 379 U.S. 47 


NO. 449.  DECIDED NOVEMBER 16, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 162 SO. 2D 437. 


ASSOCIATED PRESS ET AL. V. WALKER. 

APPEAL FROM THE COURT OF APPEAL OF LOUISIANA, SECOND CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















NATIONAL LABOR RELATIONS BOARD V. BURNUP & SIMS, INC. 379 U.S. 21 


NO. 15.  ARGUED OCTOBER 15, 1964.  - DECIDED NOVEMBER 9, 1964.  - 322
F.2D 57, REVERSED. 


RESPONDENT EMPLOYER DISCHARGED TWO EMPLOYEES UPON BEING ERRONEOUSLY
ADVISED THAT THEY, WHILE SOLICITING ANOTHER EMPLOYEE FOR UNION
MEMBERSHIP, HAD THREATENED TO DYNAMITE COMPANY PROPERTY IF THE UNION
DID NOT RECEIVE COLLECTIVE BARGAINING AUTHORIZATION.  THE COURT OF
APPEALS, FINDING THAT THE EMPLOYER HAD ACTED IN GOOD FAITH, REVERSED
THE NATIONAL LABOR RELATIONS BOARD'S HOLDING THAT THE DISCHARGES WERE
AN UNFAIR LABOR PRACTICE UNDER THE NATIONAL LABOR RELATIONS ACT.  HELD:
REGARDLESS OF MOTIVE, THE EMPLOYER VIOLATED SEC. 8(A)(1) OF THE ACT
SINCE THE DISCHARGED EMPLOYEES, WHO WERE NOT GUILTY OF MISCONDUCT, WERE
ENGAGED IN ACTIVITY WHICH WAS PROTECTED UNDER SEC. 7, AND THE WRONGFUL
DISCHARGE WOULD TEND TO DISCOURAGE SEC. 7 ACTIVITY.  PP. 22-24. 

NATIONAL LABOR RELATIONS BOARD V. BURNUP & SIMS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

TWO EMPLOYEES IN RESPONDENT'S PLANT, DAVIS AND HARMON, UNDERTOOK TO
ORGANIZE THE EMPLOYEES WHO WORKED THERE.  THE SUPERINTENDENT WAS
ADVISED BY ANOTHER EMPLOYEE, ONE PATE, THAT DAVIS AND HARMON, WHILE
SOLICITING HIM FOR MEMBERSHIP IN THE UNION, HAD TOLD HIM THE UNION
WOULD USE DYNAMITE TO GET IN IF THE UNION DID NOT ACQUIRE THE
AUTHORIZATIONS.  RESPONDENT THEREAFTER DISCHARGED DAVIS AND HARMON
BECAUSE OF THESE ALLEGED STATEMENTS.  AN UNFAIR LABOR PRACTICE
PROCEEDING WAS BROUGHT.  THE BOARD HELD THAT THE DISCHARGES VIOLATED
SECS. 8(A)(1) AND 8(A)(3) OF THE ACT, (FN1) 61 STAT. 136, 140-141, 29
U.S.C. SECS. 158(A)(1) AND (A)(3).  IT FOUND THAT PATE'S CHARGES
AGAINST DAVIS AND HARMON WERE UNTRUE AND THAT THEY HAD ACTUALLY MADE NO
THREATS AGAINST THE COMPANY'S PROPERTY; AND IT CONCLUDED THAT THE
RESPONDENT'S HONEST BELIEF IN THE TRUTH OF THE STATEMENT WAS NOT A
DEFENSE.  137 N.L.R.B. 766, 772-773. 

THE COURT OF APPEALS REFUSED REINSTATEMENT OF DAVIS AND HARMON,
HOLDING THAT SINCE THE EMPLOYER ACTED IN GOOD FAITH, THE DISCHARGES
WERE NOT UNLAWFUL.  322 F.2D 57.  WE GRANTED THE PETITION FOR
CERTIORARI BECAUSE OF A CONFLICT AMONG THE CIRCUITS.  CF. WITH THE
OPINION BELOW LABOR BOARD V. INDUSTRIAL COTTON MILLS, 208 F.2D 87;
LABOR BOARD V. CAMBRIA CLAY PRODUCTS CO., 215 F.2D 48; CUSANO V. LABOR
BOARD, 190 F.2D 898. 

WE FIND IT UNNECESSARY TO REACH THE QUESTIONS RAISED UNDER SEC.
8(A)(3) FOR WE ARE OF THE VIEW THAT IN THE CONTEXT OF THIS RECORD SEC.
8(A)(1) WAS PLAINLY VIOLATED, WHATEVER THE EMPLOYER'S MOTIVE.  (FN2)
ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS."  DEFEAT OF
THOSE RIGHTS BY EMPLOYER ACTION DOES NOT NECESSARILY DEPEND ON THE
EXISTENCE OF AN ANTI-UNION BIAS.  OVER AND AGAIN THE BOARD HAS RULED
THAT SEC. 8(A)(1) IS VIOLATED IF AN EMPLOYEE IS DISCHARGED FOR
MISCONDUCT ARISING OUT OF A PROTECTED ACTIVITY, DESPITE THE EMPLOYER'S
GOOD FAITH, WHEN IT IS SHOWN THAT THE MISCONDUCT NEVER OCCURRED.  SEE,
E.G., MID-CONTINENT PETROLEUM CORP., 54 N.L.R.B. 912, 932-934; STANDARD
OIL CO., 91 N.L.R.B. 783, 790-791; RUBIN BROS. FOOTWEAR, INC., 99
N.L.R.B.  610, 611.  (FN3)  IN SUM, SEC. 8(A)(1) IS VIOLATED IF IT IS
SHOWN THAT THE DISCHARGED EMPLOYEE WAS AT THE TIME ENGAGED IN A
PROTECTED ACTIVITY, THAT THE EMPLOYER KNEW IT WAS SUCH, THAT THE BASIS
OF THE DISCHARGE WAS AN ALLEGED ACT OF MISCONDUCT IN THE COURSE OF THAT
ACTIVITY, AND THAT THE EMPLOYEE WAS NOT, IN FACT, GUILTY OF THAT
MISCONDUCT. 

THAT RULE SEEMS TO US TO BE IN CONFORMITY WITH THE POLICY BEHIND SEC.
8(A)(1).  OTHERWISE THE PROTECTED ACTIVITY WOULD LOSE SOME OF ITS
IMMUNITY, SINCE THE EXAMPLE OF EMPLOYEES WHO ARE DISCHARGED ON FALSE
CHARGES WOULD OR MIGHT HAVE A DETERRENT EFFECT ON OTHER EMPLOYEES. 
UNION ACTIVITY OFTEN ENGENDERS STRONG EMOTIONS AND GIVES RISE TO ACTIVE
RUMORS.  A PROTECTED ACTIVITY ACQUIRES A PRECARIOUS STATUS IF INNOCENT
EMPLOYEES CAN BE DISCHARGED WHILE ENGAGING IN IT, EVEN THOUGH THE
EMPLOYER ACTS IN GOOD FAITH.  IT IS THE TENDENCY OF THOSE DISCHARGES TO
WEAKEN OR DESTROY THE SEC. 8(A)(1) RIGHT THAT IS CONTROLLING.  WE ARE
NOT IN THE REALM OF MANAGERIAL PREROGATIVES.  RATHER WE ARE CONCERNED
WITH THE MANNER OF SOLICITING UNION MEMBERSHIP OVER WHICH THE BOARD HAS
BEEN ENTRUSTED WITH POWERS OF SURVEILLANCE.  SEE GARMENT WORKERS V.
LABOR BOARD, 366 U.S. 731, 738-739; LABOR BOARD V. ERIE RESISTOR CORP.,
373 U.S. 221, 228-229.  HAD THE ALLEGED DYNAMITING THREATS BEEN WHOLLY
DISASSOCIATED FROM SEC. 7 ACTIVITIES QUITE DIFFERENT CONSIDERATIONS
MIGHT APPLY.  REVERSED. 

FN1  SECTIONS 8(A)(1) AND (3) READ AS FOLLOWS: 

"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 7: 

     *         *         *    *         * 

"(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 ...  ." 

FN2  AS AN ALTERNATIVE GROUND FOR ITS FINDING THAT THE ACT HAD BEEN
VIOLATED, THE BOARD HELD THAT PATE'S ALLEGATION WAS MERELY "SEIZED
UPON" BY THE RESPONDENT AS AN "EXCUSE" FOR THE DISCHARGES OF DAVIS AND
HARMON.  137 N.L.R.B. 766, 772-773.  THE COURT OF APPEALS, HOWEVER,
REJECTED WITHOUT DISCUSSION THIS SUGGESTION OF THE EXISTENCE OF ANTI
UNION BIAS.  322 F.2D 57, 59, 61.  IN ITS PETITION FOR WRIT OF
CERTIORARI THE BOARD EXPRESSLY STATED THAT "THE PROPRIETY OF THIS
ACTION BY THE COURT OF APPEALS IS NOT QUESTIONED HERE."  IN LIGHT OF
THIS CONCESSION IT IS UNNECESSARY FOR US TO DETERMINE WHETHER THE
BOARD'S ALTERNATIVE FINDING OF A DISCRIMINATORY MOTIVATION IS SUPPORTED
BY SUBSTANTIAL EVIDENCE. 

FN3  THE RUBIN BROS. CASE MADE A QUALIFICATION AS TO BURDEN OF
PROOF.  PRIOR THERETO THE BURDEN WAS ON THE EMPLOYER TO PROVE THAT THE
DISCHARGED EMPLOYEE WAS IN FACT GUILTY OF THE MISCONDUCT.  RUBIN BROS.
SAID THAT "ONCE SUCH AN HONEST BELIEF IS ESTABLISHED, THE GENERAL
COUNSEL MUST GO FORWARD WITH EVIDENCE TO PROVE THAT THE EMPLOYEES DID
NOT, IN FACT, ENGAGE IN SUCH MISCONDUCT."  99 N.L.R.B., AT 611. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

BOTH THE RULE ADOPTED BY THE LOWER COURT AND THAT NOW ANNOUNCED BY
THIS COURT SEEM TO ME UNACCEPTABLE.  ON THE ONE HAND, IT IMPINGES ON
THE RIGHTS ASSURED BY SECS. 7 AND 8(A)(1) TO HOLD, AS THE COURT OF
APPEALS DID, THAT THE EMPLOYEE MUST BEAR THE ENTIRE BRUNT OF HIS
HONEST, BUT MISTAKEN, DISCHARGE.  ON THE OTHER HAND, IT IS HARDLY FAIR
THAT THE EMPLOYER SHOULD BE FACED WITH THE CHOICE OF RISKING DAMAGE TO
HIS BUSINESS OR INCURRING A PENALTY FOR TAKING HONEST ACTION TO THWART
IT. 

BETWEEN THESE TWO ONE-WAY STREETS LIES A MIDDLE TWO-WAY COURSE:  A
RULE WHICH WOULD REQUIRE REINSTATEMENT OF THE MISTAKENLY DISCHARGED
EMPLOYEE AND BACK PAY ONLY AS OF THE TIME THAT THE EMPLOYER LEARNED, OR
SHOULD HAVE LEARNED, OF HIS MISTAKE, SUBJECT, HOWEVER, TO A VALID
BUSINESS REASON FOR REFUSING REINSTATEMENT.  (FN1)  SUCH A RULE GIVES
OFFENSE NEITHER TO ANY POLICY OF THE STATUTE NOR TO THE DICTATES OF
FAIRNESS TO THE EMPLOYER, AND IN MY OPINION REPRESENTS A REASONABLE
ACCOMMODATION BETWEEN THE TWO INFLEXIBLE POINTS OF VIEW EVINCED BY THE
OPINIONS BELOW AND HERE. 

SINCE I DO NOT BELIEVE THAT THIS CASE PRESENTS THE RARE SITUATION IN
WHICH THE BOARD CAN IGNORE MOTIVE, (FN2) I WOULD VACATE THE JUDGMENT OF
THE COURT OF APPEALS AND REMAND THE CASE TO THE BOARD FOR FURTHER
APPROPRIATE PROCEEDINGS IN LIGHT OF WHAT I BELIEVE TO BE THE PROPER
RULE. 

FN1  AS FOR EXAMPLE, IF A REPLACEMENT HAD BEEN HIRED AND THE
DISCHARGED EMPLOYEE UNDULY DELAYED IN APPRISING THE EMPLOYER OF THE
MISTAKE. 

FN2  SEE TEAMSTERS LOCAL V. LABOR BOARD, 365 U.S. 667, 677
(1961)(CONCURRING OPINION).  RESPONDENT HERE HAD A SIGNIFICANT BUSINESS
JUSTIFICATION - TO AVOID DYNAMITING OF A SILO - FOR DISCHARGING THE
EMPLOYEES, UNLIKE THE SITUATIONS PRESENTED IN ALLIS-CHALMERS MFG. CO.
V. LABOR BOARD, 162 F.2D 435; CUSANO V. LABOR BOARD, 190 F.2D 898, AND
LABOR BOARD V. INDUSTRIAL COTTON MILLS, 208 F.2D 87.  SEE TEAMSTERS
LOCAL, SUPRA, AT 680. 

IN ALLIS-CHALMERS THE EMPLOYER DOWNGRADED THE STATUS OF PLANT
INSPECTORS AFTER THEY HAD VOTED TO JOIN A UNION, AND IT WAS APPARENT
THAT THE EMPLOYER ACTED ONLY BECAUSE OF THE INSPECTORS' MEMBERSHIP IN
THE UNION.  THERE WAS NO BUSINESS JUSTIFICATION FOR THE EMPLOYER'S
ACTION EXCEPT FOR HIS FEELING THAT UNION MEMBERS SHOULD NOT EXERCISE
SUPERVISORY POWERS AND THE BOARD WAS THEREFORE JUSTIFIED IN TREATING
THIS AS AN UNFAIR LABOR PRACTICE WITHOUT A SPECIFIC FINDING OF
DISCRIMINATORY MOTIVE. 

CUSANO INVOLVED A MISTAKEN BELIEF BY THE EMPLOYER THAT AN EMPLOYEE
HAD MADE A MISSTATEMENT ABOUT COMPANY PROFITS, WHICH MIGHT WELL HAVE
BEEN PROTECTED CAMPAIGN "ORATORY" EVEN IF THE EMPLOYEE HAD MADE THE
MISSTATEMENT.  SINCE THE EMPLOYER COULD SIMPLY HAVE DENIED THE TRUTH OF
THE PROFIT FIGURES, THERE WAS NO BUSINESS JUSTIFICATION FOR DISCHARGING
THE EMPLOYEE. 

INDUSTRIAL COTTON MILLS PRESENTS THE CLOSEST ANALOGY TO THE CASE
BEFORE US.  THERE AN EMPLOYEE WAS REFUSED REINSTATEMENT FOLLOWING A
STRIKE FOR ALLEGED STRIKE MISCONDUCT - THROWING TACKS ON THE STREET
DURING A STRIKE - WHICH HE DID NOT COMMIT.  THE COURT OF APPEALS
RECOGNIZED THE SPECIAL CONGRESSIONAL CONCERN FOR THE RIGHT TO STRIKE
EMBODIED IN SECS. 2(3) AND 13 OF THE ACT, AND HELD THAT THE EMPLOYER'S
LACK OF ANTIUNION MOTIVE WAS IRRELEVANT.  THERE WAS ALSO LITTLE
BUSINESS JUSTIFICATION FOR PUNISHING THE EMPLOYEE AFTER THE STRIKE HAD
ENDED, UNLIKE THE FEAR IN THIS CASE OF FUTURE SABOTAGE BY THE
EMPLOYEES. 
..END :



BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS &
STATION EMPLOYEES V. UNITED AIR LINES, INC. 379 U.S. 26 


NO. 31.  ARGUED OCTOBER 22, 1964.  - DECIDED NOVEMBER 9, 1964.  -
CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED.  - REPORTED BELOW:  325
F.2D 576. 


BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS &
STATION EMPLOYES V. UNITED AIR LINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE HARLAN, BELIEVING THAT THE QUESTIONS WHICH BROUGHT THIS
CASE HERE SHOULD BE DECIDED, DISSENTS FROM THE DISMISSAL OF THE WRIT. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :








HOOPER V. DUNCAN, SUPERINTENDENT, DEPARTMENT OF LIQUOR LICENSES AND
CONTROL OF ARIZONA 379 U.S. 27 


NO. 393.  DECIDED NOVEMBER 9, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  95 ARIZ. 305, 389
P.2D 706. 


HOOPER V. DUNCAN, SUPERINTENDENT, DEPARTMENT OF LIQUOR LICENSES AND
CONTROL OF ARIZONA, ET AL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















ALBAUGH V. TAWES, GOVERNOR OF MARYLAND 379 U.S. 27 


NO. 481.  DECIDED NOVEMBER 9, 1964.  - 233 F. SUPP. 576, AFFIRMED. 


ALBAUGH V. TAWES, GOVERNOR OF MARYLAND, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 
..END :


















TRAUTWEIN V. COMMUNITY REDEVELOPMENT AGENCY OF LOS ANGELES 379 U.S. 28 


NO. 416.  DECIDED NOVEMBER 9, 1964.* - APPEALS DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 61 CAL. 2D 21, 389 P.2D 538. 

*TOGETHER WITH NO. 426, GOLDMAN ET UX. V. COMMUNITY REDEVELOPMENT
AGENCY OF LOS ANGELES, ALSO ON APPEAL FROM THE SAME COURT. 


TRAUTWEIN ET AL. V. COMMUNITY REDEVELOPMENT AGENCY OF LOS ANGELES. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION OF JOHN SWIGART ET AL., FOR LEAVE TO FILE A BRIEF AS AMICI
CURIAE IN NO. 426 IS GRANTED.  THE MOTIONS TO DISMISS ARE GRANTED AND
THE APPEALS ARE DISMISSED FOR WANT OF JURISDICTION.   TREATING THE
PAPERS WHEREON THE APPEALS WERE TAKEN AS PETITIONS FOR WRITS OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :











DENMAN V. WHITE 379 U.S. 28 


NO. 379, MISC.  DECIDED NOVEMBER 9, 1964. 


DENMAN ET UX. V. WHITE, SECRETARY OF STATE OF MASSACHUSETTS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















GIOVA V. ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE 379 U.S. 18 


NO. 23.  DECIDED OCTOBER 26, 1964.  - REPORTED BELOW:  308 F.2D 347. 


JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS TO ENTERTAIN THE
PETITION FOR REVIEW. 

GIOVA V. ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE SUBMISSION OF THE UNITED STATES THAT THE
JUDGMENT OF THE COURT OF APPEALS SHOULD BE REVERSED AND THE CAUSE
REMANDED WITH DIRECTIONS TO ENTERTAIN THE PETITION FOR REVIEW, AND UPON
EXAMINATION OF THE ENTIRE RECORD, THE JUDGMENT IS REVERSED AND THE CASE
IS REMANDED TO THE COURT OF APPEALS WITH DIRECTIONS TO ENTERTAIN THE
PETITION FOR REVIEW. 
..END :







TANCIL V. WOOLLS, JUDGES 379 U.S. 19 


NO. 386.  DECIDED OCTOBER 26, 1964.* - 230 F. SUPP. 156, AFFIRMED. 

*TOGETHER WITH NO. 412, VIRGINIA BOARD OF ELECTIONS ET AL. V. HAMM ET
AL., ALSO ON APPEAL FROM THE SAME COURT. 


TANCIL ET AL. V. WOOLLS ET AL., JUDGES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IN NO. 412 IS GRANTED AND THE JUDGMENT IN BOTH
CASES IS AFFIRMED. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED IN BOTH CASES. 

MR. JUSTICE BRENNAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED IN NO. 386. 
..END :








SHIPE V. BRENNAN 379 U.S. 20 


NO. 353.  DECIDED OCTOBER 26, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  414 PA. 258, 199 A.2D
467. 


SHIPE ET AL. V. BRENNAN. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SAFEWAY TRAILS, INC. V. FURMAN 379 U.S. 14 


NO. 228.  DECIDED OCTOBER 19, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 41 N.J. 467, 197 A.2D 366. 


SAFEWAY TRAILS, INC. V. FURMAN ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ALHAMBRA TRUCKING CO. V. PUBLIC UTILITIES COMMISSION OF CALIFORNIA 379
U.S. 14 


NO. 288.  DECIDED OCTOBER 19, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


ALHAMBRA TRUCKING CO. ET AL. V. PUBLIC UTILITIES COMMISSION OF
CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















DIXIE FEED & SEED CO., INC. V. BYRD 379 U.S. 15 


NO. 311.  DECIDED OCTOBER 19, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  - TENN. APP. - , 376
S.W.2D 745. 


DIXIE FEED & SEED CO., INC., ET AL. V. BYRD. 

APPEAL FROM THE COURT OF APPEALS OF TENNESSEE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BOINEAU V. THORNTON, SECRETARY OF STATE OF SOUTH CAROLINA 379 U.S. 15 


NO. 483.  DECIDED OCTOBER 19, 1964.  - 235 F. SUPP. 175, AFFIRMED. 


BOINEAU ET AL. V. THORNTON, SECRETARY OF STATE OF SOUTH CAROLINA, ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF SOUTH CAROLINA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















BOHMAN V. CITY OF BOSTON REAL ESTATE COMMISSION 379 U.S. 16 


NO. 312, MISC.  DECIDED OCTOBER 19, 1964.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 


BOHMAN V. CITY OF BOSTON REAL ESTATE COMMISSION. 

APPEAL FROM THE SUPERIOR COURT OF MASSACHUSETTS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















BOHMAN V. PEUTUCKET FIVE CENT SAVING BANK 379 U.S. 16 


NO. 313, MISC.  DECIDED OCTOBER 19, 1964.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 


BOHMAN V. PEUTUCKET FIVE CENT SAVING BANK. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















MAMULA V. UNITED STEELWORKERS OF AMERICA 379 U.S. 17 


NO. 327.  DECIDED OCTOBER 19, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  414 PA. 294, 200 A.2D 306. 


MAMULA V. UNITED STEELWORKERS OF AMERICA ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BRENNAN IS OF THE OPINION THAT THE APPEAL SHOULD BE
DISMISSED, BUT THAT IN TREATING THE PAPERS AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI SHOULD BE GRANTED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS APPEAL. 
..END :









LOUDEN V. UTAH 379 U.S. 1 


NO. 6, MISC.  DECIDED OCTOBER 12, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  15 UTAH 2D 64, 387 P.2D
240. 


LOUDEN V. UTAH. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF UTAH. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF UTAH FOR FURTHER PROCEEDINGS
IN LIGHT OF STONER V. CALIFORNIA, 376 U.S. 483. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE ARE OF THE OPINION THAT
CERTIORARI SHOULD BE DENIED. 
..END :











DAVIS V. NEELY 379 U.S. 2 


NO. 68.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 387 P.2D 494. 


DAVIS V. NEELY ET UX. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CITY OF PLANTATION V. UTILITIES OPERATING CO., INC. 379 U.S. 2 


NO. 72.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  156 SO. 2D 842. 


CITY OF PLANTATION V. UTILITIES OPERATING CO., INC. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















SCHACKMAN V. CALIFORNIA 379 U.S. 3 


NO. 105.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


SCHACKMAN ET AL V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BATTISTA, TRADING AS NOR-VIEW FARM V. MILK CONTROL COMMISSION OF
PENNSYLVANIA 379 U.S. 3 


NO. 295.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  413 PA. 652, 198 A.2D
840. 


BATTISTA ET AL., TRADING AS NOR-VIEW FARM V. MILK CONTROL COMMISSION OF
PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














ACCELERATED TRANSPORT-PONY EXPRESS, INC. V. UNITED STATES 379 U.S. 4 


NO. 131.  DECIDED OCTOBER 12, 1964.  - 227 F. SUPP. 815, AFFIRMED. 


ACCELERATED TRANSPORT-PONY EXPRESS, INC., ET AL. V. UNITED STATES ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
VERMONT. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















ALVAREZ V. CALIFORNIA 379 U.S. 4 


NO. 46, MISC.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION. 


ALVAREZ V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















AMPCO PRINTING-ADVERTISERS' OFFSET CORP. V. CITY OF NEW YORK 379 U.S. 5 



NO. 152.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  14 N.Y.2D 11, 197
N.E.2D 285. 


AMPCO PRINTING-ADVERTISERS' OFFSET CORP. ET AL. V. CITY OF NEW YORK ET
AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














EDELL V. MACK 379 U.S. 5 


NO. 145, MISC.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW: 13 N.Y.2D 1001,
195 N.E.2D 58. 


EDELL V. MACK ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















COOPER-JARRETT, INC. V. UNITED STATES 379 U.S. 6 


NO. 159.  DECIDED OCTOBER 12, 1964.  - 226 F. SUPP. 318, AFFIRMED. 


COOPER-JARRETT, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















MALONEY V. HOLDEN, JUDGE 379 U.S. 6 


NO. 225, MISC.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 


MALONEY V. HOLDEN, JUDGE. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















WYCOFF CO., INC. V. PUBLIC SERVICE COMMISSION OF UTAH 379 U.S. 7 


NO. 238.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  15 UTAH 2D 139, 389
P.2D 57. 


WYCOFF CO., INC. V. PUBLIC SERVICE COMMISSION OF UTAH ET AL. 

APPEAL FROM THE SUPREME COURT OF UTAH. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















AGEE V. COLUMBUS BAR ASSN. 379 U.S. 7 


NO. 259.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  175 OHIO ST. 443, 196 N.E.2D 98. 


AGEE V. COLUMBUS BAR ASSOCIATION. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















YORTY V. JORDAN, SECRETARY OF STATE OF CALIFORNIA 379 U.S. 8 


NO. 250.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


YORTY ET AL. V. JORDAN, SECRETARY OF STATE OF CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BENNETT V. COUNTY OF DADE, FLORIDA 379 U.S. 8 


NO. 275, MISC.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 


BENNETT V. COUNTY OF DADE, FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















JURUS V. COLUMBUS BAR ASSOCIATION 379 U.S. 9 


NO. 260.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  175 OHIO ST. 449, 196 N.E.2D 94. 


JURUS V. COLUMBUS BAR ASSOCIATION. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















LIND V. MINNESOTA 379 U.S. 9 


NO. 163, MISC.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED. 


LIND V. MINNESOTA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :


















FORD V. LOUISIANA 379 U.S. 10 


NO. 329.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 245 LA. 490, 159 SO. 2D 129. 


FORD V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MCILVAINE V. LOUISIANA 379 U.S. 10 


NO. 21, MISC.  DECIDED OCTOBER 12, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW: 245 LA. 649, 160 SO.2D
566. 


MCILVAINE ET AL. V. LOUISIANA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF LOUISIANA FOR FURTHER
CONSIDERATION IN LIGHT OF AGUILAR V. TEXAS, 378 U.S. 108. 

MR. JUSTICE BLACK DISSENTS. 
..END :











WASMUTH V. ALLEN, COMMISSIONER OF EDUCATION OF NEW YORK 379 U.S. 11 


NO. 402.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  14 N.Y.2D 391, 200
N.E.2D 756. 


WASMUTH ET AL. V. ALLEN, COMMISSIONER OF EDUCATION OF NEW YORK, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















WRIGHT V. ILLINOIS 379 U.S. 11 


NO. 273, MISC.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  30 ILL. 2D 519, 198 N.E.2D 316. 


WRIGHT V. ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CEPERO V. PRESIDENT OF THE UNITED STATES 379 U.S. 12 


NO. 176, MISC.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED. 


CEPERO V. PRESIDENT OF THE UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















BINZ V. HELVETIA FLORIDA ENTERPRISES, INC. 379 U.S. 12 


NO. 181, MISC.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 


BINZ V. HELVETIA FLORIDA ENTERPRISES, INC. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















GAGER V. KASDON 379 U.S. 13 


NO. 195, MISC.  DECIDED OCTOBER 12, 1964.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW: 234 MD. 7, 197
A.2D 837. 


GAGER V. KASDON. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















GRIFFIN V. MARYLAND 378 U.S. 130 


NO. 6.  ARGUED NOVEMBER 5, 7, 1962.  - RESTORED TO THE CALENDAR FOR
REARGUMENT MAY 20, 1963.  - REARGUED OCTOBER 14-15, 1963.  - DECIDED
JUNE 22, 1964.  - 225 MD. 422, 171 A.2D 717, REVERSED. 


PETITIONERS, WHO ARE NEGROES, ENTERED A PRIVATELY OWNED AMUSEMENT PARK
WHICH THEN HAD A POLICY OF EXCLUDING NEGROES.  THEY WERE ORDERED TO
LEAVE BY A PARK EMPLOYEE WHO WAS INSTRUCTED TO ENFORCE THE RACIAL
POLICY AND WHO WAS ACTING UNDER HIS AUTHORITY AS A DEPUTY SHERIFF. 
THEY REFUSED TO LEAVE AND WERE ARRESTED BY THE DEPUTY SHERIFF AND TAKEN
TO THE POLICE STATION WHERE HE FILED CHARGES OF CRIMINAL TRESPASS AND
SECURED WARRANTS.  PETITIONERS WERE TRIED AND CONVICTED OF CRIMINAL
TRESPASS IN A STATE COURT.  HELD: 

1.  THE ACTION OF AN INDIVIDUAL WHO, AS A DEPUTY SHERIFF POSSESSING
STATE AUTHORITY, PURPORTS TO ACT PURSUANT TO THAT AUTHORITY, IS STATE
ACTION.  IT IS IMMATERIAL THAT HE COULD HAVE TAKEN THE SAME ACTION IN A
PURELY PRIVATE CAPACITY OR THAT HIS ACTION WAS NOT AUTHORIZED BY STATE
LAW.  SCREWS V. UNITED STATES, 325 U.S. 91, FOLLOWED.  P. 135. 

2.  WHEN A STATE UNDERTAKES TO ENFORCE A PRIVATE POLICY OF RACIAL
SEGREGATION IT VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  PENNSYLVANIA V. BOARD OF TRUSTS, 353 U.S. 230, FOLLOWED. 
PP. 135-137. 

GRIFFIN ET AL. V. MARYLAND. 

CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE CONVICTED OF CRIMINAL TRESPASS FOR REFUSING TO LEAVE
A PRIVATELY OWNED AND OPERATED AMUSEMENT PARK IN THE STATE OF MARYLAND
AT THE COMMAND OF AN EMPLOYEE OF THE AMUSEMENT PARK ACTING UNDER COLOR
OF HIS AUTHORITY AS A DEPUTY SHERIFF.  FOR THE REASONS SET FORTH
HEREINAFTER WE HOLD THAT THESE CONVICTIONS ARE VIOLATIVE OF THE
FOURTEENTH AMENDMENT AND MUST BE SET ASIDE. 

THE GLEN ECHO AMUSEMENT PARK IS LOCATED IN MONTGOMERY COUNTY,
MARYLAND, NEAR WASHINGTON, D.C. THOUGH THE PARK THROUGH ITS
ADVERTISEMENTS SOUGHT THE PATRONAGE OF THE GENERAL PUBLIC, IT WAS
(UNTIL RECENTLY) THE PARK'S POLICY TO EXCLUDE NEGROES WHO WISHED TO
PATRONIZE ITS FACILITIES.  NO SIGNS AT THE PARK APPRISED PERSONS OF
THIS POLICY OR OTHERWISE INDICATED THAT ALL COMERS WERE NOT WELCOME. 
NO TICKETS OF ADMISSION WERE REQUIRED.  IN PROTEST AGAINST THE PARK'S
POLICY OF SEGREGATION A NUMBER OF WHITES AND NEGROES PICKETED THE PARK
ON JUNE 30, 1960.  THE PETITIONERS, FIVE YOUNG NEGROES, WERE
PARTICIPATING IN THE PROTEST.  HOPEFUL THAT THE MANAGEMENT MIGHT CHANGE
ITS POLICY, THEY ENTERED THE PARK, AND ENCOUNTERING NO RESISTANCE FROM
THE PARK EMPLOYEES, BOARDED THE CAROUSEL.  THEY POSSESSED TRANSFERABLE
TICKETS, PREVIOUSLY PURCHASED BY OTHERS, ENTITLING THE HOLDER TO RIDE
ON THE CAROUSEL. 

AT THAT TIME THE PARK EMPLOYED ONE COLLINS AS A SPECIAL POLICEMAN BY
ARRANGEMENT WITH THE NATIONAL DETECTIVE AGENCY.  ALTHOUGH COLLINS WAS
FORMALLY RETAINED AND PAID BY THE AGENCY AND WORE ITS UNIFORM, HE WAS
SUBJECT TO THE CONTROL AND DIRECTION OF THE PARK MANAGEMENT. 
APPARENTLY AT THE REQUEST OF THE PARK, COLLINS HAD BEEN DEPUTIZED AS A
SHERIFF OF MONTGOMERY COUNTY.  (FN1)  HE WORE, ON THE OUTSIDE OF HIS
UNIFORM, A DEPUTY SHERIFF'S BADGE. 

WHEN COLLINS SAW THE PETITIONERS SITTING ON THE CAROUSEL WAITING FOR
THE RIDE TO BEGIN, HE REPORTED THEIR PRESENCE TO THE PARK MANAGER.  THE
MANAGER TOLD COLLINS THAT PETITIONERS WERE TO BE ARRESTED FOR
TRESPASSING IF THEY WOULD NOT LEAVE THE PARK.  COLLINS THEN WENT UP TO
THE PETITIONERS AND TOLD THEM THAT IT WAS THE PARK'S POLICY "NOT TO
HAVE COLORED PEOPLE ON THE RIDES, OR IN THE PARK."  HE ORDERED
PETITIONERS TO LEAVE WITHIN FIVE MINUTES.  THEY DECLINED TO DO SO,
POINTING OUT THAT THEY HAD TICKETS FOR THE CAROUSEL.  THERE WAS NO
EVIDENCE THAT ANY OF THE PETITIONERS WERE DISORDERLY.  AT THE END OF
THE FIVE-MINUTE PERIOD COLLINS, AS HE TESTIFIED, "WENT TO EACH
DEFENDANT AND TOLD THEM THAT THE TIME WAS UP AND THAT THEY WERE UNDER
ARREST FOR TRESPASSING."  COLLINS TRANSPORTED THE PETITIONERS TO THE
MONTGOMERY COUNTY POLICE STATION.  THERE HE FILLED OUT A FORM TITLED
"APPLICATION FOR WARRANT BY POLICE OFFICER."  THE APPLICATION STATED: 

"FRANCIS J. COLLINS, BEING FIRST DULY SWORN, ON OATH DOTH DEPOSE AND
SAY:  THAT HE IS A MEMBER OF THE MONTGOMERY DEPUTY SHERIFF DEPARTMENT
AND AS SUCH, ON THE 30TH DAY OF JUNE, 1960, AT ABOUT THE HOUR OF 8:45
P.M. HE DID OBSERVE THE DEFENDANT WILLIAM L. GRIFFIN IN GLEN ECHO PARK
WHICH IS PRIVATE PROPERTY.  ON ORDER OF KEBAR INC. OWNERS OF GLEN ECHO
PARK THE DEFENDANT WAS ASKED TO LEAVE THE PARK AND AFTER GIVING HIM
REASONABLE TIME TO COMPLY THE DEFENDANT REFUSED TO LEAVE AND HE WAS
PLACED UNDER ARREST FOR TRESPASSING  ...  . 

"WHEREAS, FRANCIS J. COLLINS DOTH FURTHER DEPOSE AND SAY THAT HE, AS
A MEMBER OF THE MONTGOMERY COUNTY POLICE DEPARTMENT BELIEVES THAT
________________________IS VIOLATING SEC. 577 ARTICLE 27 OF THE
ANNOTATED CODE OF MARYLAND. 

"FRANCIS J. COLLINS." 

MD. ANN. CODE, 1957 (CUM. SUPP. 1961), ART. 27, SEC 577, IS A
CRIMINAL TRESPASS STATUTE.  (FN2) ON THE SAME DAY A MARYLAND JUSTICE OF
THE PEACE ISSUED A WARRANT WHICH CHARGED THAT PETITIONER GRIFFIN "DID
ENTER UPON AND PASS OVER THE LAND AND PREMISES OF GLEN ECHO PARK  ...
AFTER HAVING BEEN TOLD BY THE DEPUTY SHERIFF FOR GLEN ECHO PARK, TO
LEAVE THE PROPERTY, AND AFTER GIVING HIM A REASONABLE TIME TO COMPLY,
HE DID NOT LEAVE  ...  CONTRARY TO THE  ...  MARYLAND CRIMINAL TRESPASS
STATUTE AND AGAINST THE PEACE, GOVERNMENT AND DIGNITY OF THE STATE." 
THE WARRANT RECITED THAT THE COMPLAINT HAD BEEN MADE BY "COLLINS DEPUTY
SHERIFF."  AN AMENDED WARRANT WAS LATER FILED.  IT STATED THAT THE
COMPLAINT HAD BEEN MADE BY "COLLINS DEPUTY SHERIFF" BUT CHARGED GRIFFIN
WITH UNLAWFULLY ENTERING THE PARK AFTER HAVING BEEN TOLD NOT TO DO SO
BY "AN AGENT" OF THE CORPORATION WHICH OPERATED THE PARK.  PRESUMABLY
IDENTICAL DOCUMENTS WERE FILED WITH RESPECT TO THE OTHER PETITIONERS. 

PETITIONERS WERE TRIED AND CONVICTED OF CRIMINAL TRESPASS IN THE
CIRCUIT COURT OF MONTGOMERY COUNTY.  EACH WAS SENTENCED TO PAY A FINE
OF $100.  THE MARYLAND COURT OF APPEALS AFFIRMED THE CONVICTION.  225
MD. 422, 171 A.2D 717.  THAT COURT, REJECTING THE PETITIONERS'
CONSTITUTIONAL CLAIMS, REASONED AS FOLLOWS: 

"THE APPELLANTS IN THIS CASE  ...  WERE ARRESTED FOR CRIMINAL
TRESPASS COMMITTED IN THE PRESENCE OF A SPECIAL DEPUTY SHERIFF OF
MONTGOMERY COUNTY (WHO WAS ALSO THE AGENT OF THE PARK OPERATOR) AFTER
THEY HAD BEEN DULY NOTIFIED TO LEAVE BUT REFUSED TO DO SO.  IT FOLLOWS
SINCE THE OFFENSE FOR WHICH THESE APPELLANTS WERE ARRESTED WAS A
MISDEMEANOR COMMITTED IN THE PRESENCE OF THE PARK OFFICER WHO HAD A
RIGHT TO ARREST THEM, EITHER IN HIS PRIVATE CAPACITY AS AN AGENT OR
EMPLOYEE OF THE OPERATOR OF THE PARK OR IN HIS LIMITED CAPACITY AS A
SPECIAL DEPUTY SHERIFF IN THE AMUSEMENT PARK  ...  - THE ARREST OF
THESE APPELLANTS FOR A CRIMINAL TRESPASS IN THIS MANNER WAS NO MORE
THAN IF A REGULAR POLICE OFFICER HAD BEEN CALLED UPON TO MAKE THE
ARREST FOR A CRIME COMMITTED IN HIS PRESENCE  ...  .  THE ARREST AND
CONVICTION OF THESE APPELLANTS FOR A CRIMINAL TRESPASS AS A RESULT OF
THE ENFORCEMENT BY THE OPERATOR OF THE PARK OF ITS LAWFUL POLICY OF
SEGREGATION, DID NOT CONSTITUTE SUCH ACTION AS MAY FAIRLY BE SAID TO BE
THAT OF THE STATE."  225 MD., AT 431, 171 A.2D, AT 721. 

WE GRANTED CERTIORARI, 370 U.S. 935, AND SET THE CASE FOR
REARGUMENT.  373 U.S. 920. 

COLLINS - IN ORDERING THE PETITIONERS TO LEAVE THE PARK AND IN
ARRESTING AND INSTITUTING PROSECUTIONS AGAINST THEM - PURPORTED TO
EXERCISE THE AUTHORITY OF A DEPUTY SHERIFF.  HE WORE A SHERIFF'S BADGE
AND CONSISTENTLY IDENTIFIED HIMSELF AS A DEPUTY SHERIFF RATHER THAN AS
AN EMPLOYEE OF THE PARK.  THOUGH AN AMENDED WARRANT WAS FILED STATING
THAT PETITIONERS HAD COMMITTED AN OFFENSE BECAUSE THEY ENTERED THE PARK
AFTER AN "AGENT" OF THE PARK TOLD THEM NOT TO DO SO, THIS CHANGE HAS
LITTLE, IF ANY, BEARING ON THE CHARACTER OF THE AUTHORITY WHICH COLLINS
INITIALLY PURPORTED TO EXERCISE.  IF AN INDIVIDUAL IS POSSESSED OF
STATE AUTHORITY AND PURPORTS TO ACT UNDER THAT AUTHORITY, HIS ACTION IS
STATE ACTION.  IT IS IRRELEVANT THAT HE MIGHT HAVE TAKEN THE SAME
ACTION HAD HE ACTED IN A PURELY PRIVATE CAPACITY OR THAT THE PARTICULAR
ACTION WHICH HE TOOK WAS NOT AUTHORIZED BY STATE LAW.  SEE, E.G.,
SCREWS V. UNITED STATES, 325 U.S. 91.  THUS, IT IS CLEAR THAT COLLINS'
ACTION WAS STATE ACTION.  SEE WILLIAMS V. UNITED STATES, 341 U.S. 97;
SEE ALSO LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 331 U.S. 416,
429.  THE ONLY QUESTION REMAINING IN THIS CASE IS WHETHER COLLINS'
ACTION DENIED PETITIONERS THE EQUAL PROTECTION OF THE LAWS SECURED TO
THEM BY THE FOURTEENTH AMENDMENT.  IF IT DID, THESE CONVICTIONS ARE
INVALID. 

IT CANNOT BE DISPUTED THAT IF THE STATE OF MARYLAND HAD OPERATED THE
AMUSEMENT PARK ON BEHALF OF THE OWNER THEREOF, AND HAD ENFORCED THE
OWNER'S POLICY OF RACIAL SEGREGATION AGAINST PETITIONERS, PETITIONERS
WOULD HAVE BEEN DEPRIVED OF THE EQUAL PROTECTION OF THE LAWS. 
PENNSYLVANIA V. BOARD OF TRUSTS, 353 U.S. 230; CF. BURTON V. WILMINGTON
PARKING AUTHORITY, 365 U.S. 715.  IN THE BOARD OF TRUSTS CASE WE WERE
CONFRONTED WITH THE FOLLOWING SITUATION.  STEPHEN GIRARD BY WILL HAD
LEFT A FUND IN TRUST TO ESTABLISH A COLLEGE.  HE HAD PROVIDED IN HIS
WILL, IN EFFECT, THAT ONLY "POOR WHITE MALE ORPHANS" WERE TO BE
ADMITTED.  THE FUND WAS ADMINISTERED BY THE BOARD OF DIRECTORS OF CITY
TRUSTS OF THE CITY OF PHILADELPHIA AS TRUSTEE.  IN ACCORD WITH THE
PROVISIONS OF THE WILL IT DENIED ADMISSION TO TWO NEGRO APPLICANTS WHO
WERE OTHERWISE QUALIFIED.  WE HELD: 

"THE BOARD WHICH OPERATES GIRARD COLLEGE IS AN AGENCY OF THE STATE OF
PENNSYLVANIA.  THEREFORE, EVEN THOUGH THE BOARD WAS ACTING AS A
TRUSTEE, ITS REFUSAL TO ADMIT FOUST AND FELDER TO THE COLLEGE BECAUSE
THEY WERE NEGROES WAS DISCRIMINATION BY THE STATE.  SUCH DISCRIMINATION
IS FORBIDDEN BY THE FOURTEENTH AMENDMENT.  BROWN V. BOARD OF EDUCATION,
347 U.S. 483."  353 U.S., AT 231. 

THE BOARD OF TRUSTS CASE MUST BE TAKEN TO ESTABLISH THAT TO THE
EXTENT THAT THE STATE UNDERTAKES AN OBLIGATION TO ENFORCE A PRIVATE
POLICY OF RACIAL SEGREGATION, THE STATE IS CHARGED WITH RACIAL
DISCRIMINATION AND VIOLATES THE FOURTEENTH AMENDMENT. 

IT IS ARGUED THAT THE STATE MAY NEVERTHELESS CONSTITUTIONALLY ENFORCE
AN OWNER'S DESIRE TO EXCLUDE PARTICULAR PERSONS FROM HIS PREMISES EVEN
IF THE OWNER'S DESIRE IS IN TURN MOTIVATED BY A DISCRIMINATORY
PURPOSE.  THE STATE, IT IS SAID, IS NOT REALLY ENFORCING A POLICY OF
SEGREGATION SINCE THE OWNER'S ULTIMATE PURPOSE IS IMMATERIAL TO THE
STATE.  IN THIS CASE IT CANNOT BE SAID THAT COLLINS WAS SIMPLY
ENFORCING THE PARK MANAGEMENT'S DESIRE TO EXCLUDE DESIGNATED
INDIVIDUALS FROM THE PREMISES.  THE PRESIDENT OF THE CORPORATION WHICH
OWNED AND MANAGED THE PARK TESTIFIED THAT HE HAD INSTRUCTED COLLINS TO
ENFORCE THE PARK'S POLICY OF RACIAL SEGREGATION.  COLLINS WAS TOLD TO
EXCLUDE NEGROES FROM THE PARK AND ESCORT THEM FROM THE PARK IF THEY
ENTERED.  HE WAS INSTRUCTED TO ARREST NEGROES FOR TRESPASSING IF THEY
DID NOT LEAVE THE PARK WHEN HE ORDERED THEM TO DO SO.  IN SHORT,
COLLINS, AS STATED BY THE MARYLAND COURT OF APPEALS, WAS "THEN UNDER
CONTRACT TO PROTECT AND ENFORCE  ...  THE RACIAL SEGREGATION POLICY OF
THE OPERATOR OF THE AMUSEMENT PARK  ...  ."  225 MD., AT 430, 171 A.2D,
AT 720.  PURSUANT TO THIS OBLIGATION COLLINS ORDERED PETITIONERS TO
LEAVE AND ARRESTED THEM, AS HE TESTIFIED, BECAUSE THEY WERE NEGROES. 
THIS WAS STATE ACTION FORBIDDEN BY THE FOURTEENTH AMENDMENT. 
REVERSED. 

FN1  THE MARYLAND COURT OF APPEALS OPINION BELOW STATED THAT COLLINS
WAS DEPUTIZED AT THE REQUEST OF THE PARK MANAGEMENT PURSUANT TO SEC 2
91 OF THE MONTGOMERY COUNTY CODE OF 1955 WHICH PROVIDES THAT THE
SHERIFF "ON APPLICATION OF ANY CORPORATION OR INDIVIDUAL, MAY APPOINT
SPECIAL DEPUTY SHERIFFS FOR DUTY IN CONNECTION WITH THE PROPERTY OF
...  SUCH CORPORATION OR INDIVIDUAL; SUCH SPECIAL DEPUTY SHERIFFS TO BE
PAID WHOLLY BY THE CORPORATION OR PERSON ON WHOSE ACCOUNT THEIR
APPOINTMENTS ARE MADE.  SUCH SPECIAL DEPUTY SHERIFFS  ...  SHALL HAVE
THE SAME POWER AND AUTHORITY AS DEPUTY SHERIFFS POSSESS WITHIN THE AREA
TO WHICH THEY ARE APPOINTED AND IN NO OTHER AREA."  225 MD. 422, 430,
171 A.2D 717, 721. 

FN2  THAT SECTION PROVIDES: 

"ANY PERSON  ...  WHO SHALL ENTER UPON OR CROSS OVER THE LAND,
PREMISES OR PRIVATE PROPERTY OF ANY PERSON  ...  AFTER HAVING BEEN DULY
NOTIFIED BY THE OWNER OR HIS AGENT NOT TO DO SO SHALL BE DEEMED GUILTY
OF A MISDEMEANOR  ...  PROVIDED  ...  HOWEVER THAT NOTHING IN THIS
UPON OR CROSSING OVER ANY LAND WHEN SUCH ENTRY OR CROSSING IS DONE
UNDER A BONA FIDE CLAIM OF RIGHT OR OWNERSHIP OF SAID LAND, IT BEING
THE INTENTION OF THIS SECTION ONLY TO PROHIBIT ANY WANTON TRESPASS UPON
THE PRIVATE LAND OF OTHERS." 

MR. JUSTICE DOUGLAS WOULD REVERSE FOR THE REASONS STATED IN HIS
OPINION IN BELL V. MARYLAND, POST, P. 242. 

MR. JUSTICE CLARK, CONCURRING. 

I JOIN THE COURT'S OPINION WITH THE UNDERSTANDING THAT IT MERELY
HOLDS, UNDER THE PECULIAR FACTS HERE, THAT THE STATE "MUST BE
RECOGNIZED AS A JOINT PARTICIPANT IN THE CHALLENGED ACTIVITY."  SEE
BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715, 725 (1961). 
DEPUTY SHERIFF COLLINS, AN AGENT OF THE STATE, WAS REGULARLY EMPLOYED
BY GLEN ECHO IN THE ENFORCEMENT OF ITS SEGREGATION POLICY.  I CANNOT,
THEREFORE, SAY, AS DOES MY BROTHER HARLAN, THAT THE SITUATION "IS NO
DIFFERENT FROM WHAT IT WOULD HAVE BEEN HAD THE ARRESTS BEEN MADE BY A
REGULAR POLICEMAN DISPATCHED FROM POLICE HEADQUARTERS."  HERE COLLINS,
THE DEPUTY SHERIFF, ORDERED PETITIONERS TO LEAVE THE PARK BEFORE ANY
CHARGES WERE FILED.  UPON REFUSAL, COLLINS, THE DEPUTY SHERIFF, MADE
THE ARREST AND THEN TOOK PETITIONERS TO THE POLICE STATION WHERE HE
FILED THE CHARGES AND SECURED THE WARRANT.  IF COLLINS HAD NOT BEEN A
POLICE OFFICER, IF HE HAD ORDERED THE PETITIONERS OFF THE PREMISES AND
FILED THE CHARGES OF CRIMINAL TRESPASS, IF THEN, FOR THE FIRST TIME,
THE POLICE HAD COME ON THE SCENE TO SERVE A WARRANT ISSUED IN DUE
COURSE BY A MAGISTRATE, BASED ON THE CHARGES FILED, THAT MIGHT BE A
DIFFERENT CASE.  THAT CASE WE DO NOT PASS UPON. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK AND MR. JSUTICE WHITE
JOIN, DISSENTING. 

THE PIVOTAL ISSUE IN THIS CASE IS WHETHER PETITIONERS' EXCLUSION FROM
GLEN ECHO, A PRIVATE AMUSEMENT PARK, WAS THE PRODUCT OF STATE ACTION. 
I ACCEPT THE PREMISE THAT IN ARRESTING THESE PETITIONERS COLLINS WAS
EXERCISING HIS AUTHORITY AS DEPUTY SHERIFF RATHER THAN HIS RIGHT AS AN
INDIVIDUAL UNDER MARYLAND LAW, SEE 225 MD., AT 431, 171 A.2D, AT 721,
TO ARREST THEM FOR A MISDEMEANOR BEING COMMITTED IN HIS PRESENCE.  IT
SEEMS CLEAR TO ME, HOWEVER, THAT THE INVOLVEMENT OF THE STATE IS NO
DIFFERENT FROM WHAT IT WOULD HAVE BEEN HAD THE ARRESTS BEEN MADE BY A
REGULAR POLICEMAN DISPATCHED FROM POLICE HEADQUARTERS.    I BELIEVE,
THEREFORE, THAT THIS CASE IS CONTROLLED BY THE PRINCIPLES DISCUSSED IN
MR. JUSTICE BLACK'S OPINION IN BELL V. MARYLAND, POST, P. 318, DECIDED
TODAY, AND ACCORDINGLY WOULD AFFIRM THE JUDGMENT BELOW. 
..END :






FALLEN V. UNITED STATES 378 U.S. 139 


NO. 210.  ARGUED APRIL 30, 1964.  - DECIDED JUNE 22, 1964.  - 306 F.2D
697, REVERSED AND CASE REMANDED. 


PETITIONER APPEARED FOR SENTENCING ON JANUARY 15, 1962, WITH HIS COURT
APPOINTED ATTORNEY.  AFTER SENTENCES AGGREGATING 20 YEARS WERE IMPOSED,
PETITIONER ASKED THE COURT IF HE COULD APPEAL "AS AN INSOLVENT" AND WAS
ADVISED THAT HE COULD.  HIS ATTORNEY THEN WITHDREW FROM THE CASE, AND
PETITIONER WAS TRANSPORTED TO HOSPITAL FACILITIES AWAY FROM THE PLACE
OF TRIAL.  ON JANUARY 29, 14 DAYS AFTER SENTENCING, THE CLERK RECEIVED
LETTERS FROM PETITIONER ASKING FOR A NEW TRIAL AND FOR AN APPEAL.  THE
LETTERS WERE DATED JANUARY 23 BY PETITIONER AND IF ACTUALLY MAILED BY
HIM ON THAT DATE WOULD IN THE NORMAL COURSE OF EVENTS HAVE BEEN
RECEIVED BY THE CLERK WITHIN THE 10-DAY REQUIREMENT OF RULE 37(A) OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE.  THE COURT OF APPEALS
DISMISSED PETITIONER'S APPEAL, HOWEVER, BECAUSE THE LETTERS WERE NOT
ACTUALLY RECEIVED WITHIN THAT TIME.  HELD: 

1.  THE FEDERAL RULES OF CRIMINAL PROCEDURE SHOULD NOT BE INFLEXIBLY
APPLIED WITHOUT REGARD TO THE CIRCUMSTANCES.  P. 142. 

2.  AS FAR AS THIS RECORD DISCLOSES, PETITIONER, WHO WAS WITHOUT THE
BENEFIT OF COUNSEL, DID ALL THAT COULD REASONABLY BE EXPECTED TO FILE
HIS APPEAL WITHIN THE ALLOTTED TIME, AND ACCORDINGLY HE SHOULD NOT BE
BARRED FROM HAVING HIS APPEAL HEARD ON THE MERITS.  PP.  142-144. 

FALLEN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

AT ISSUE IN THIS CASE IS WHETHER PETITIONER'S NOTICE OF APPEAL WAS
FILED WITHIN THE TIME SPECIFIED BY RULE 37(A)(2) OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE. 

PETITIONER WAS CONVICTED ON JANUARY 11, 1962, OF VIOLATIONS OF THE
POSTAL LAWS.  (FN1)  FOUR DAYS LATER - ON JANUARY 15 - HE APPEARED FOR
SENTENCING WITH THE ATTORNEY WHO HAD BEEN APPOINTED TO REPRESENT HIM AT
TRIAL.  CONSECUTIVE SENTENCES AGGREGATING 20 YEARS WERE IMPOSED, AFTER
WHICH THE DEFENDANT ASKED IF HE COULD APPEAL THE CASE "AS AN
INSOLVENT."  THE SENTENCING JUDGE REPLIED: 

"OH, YES, YOU ALWAYS HAVE A RIGHT TO APPEAL; THE GOVERNMENT PROVIDES
FOR THAT. 

"SO THAT WILL BE ALL.  WE ARE THROUGH WITH THIS CASE. 

"MR. MARSHAL, YOU MAY TAKE CHARGE OF THE DEFENDANT. 

BEFORE HE WAS TAKEN OUT OF THE BUILDING, PETITIONER WAS GIVEN AN
OPPORTUNITY TO CONSULT WITH HIS COURT-APPOINTED ATTORNEY.  ACCORDING TO
THE ATTORNEY'S LATER RECOLLECTION, PETITIONER ASKED HIM AT THAT TIME IF
HE WOULD BE INTERESTED IN REPRESENTING HIM ON AN APPEAL.  THE ATTORNEY
RESPONDED THAT HIS FIRM DID NOT WANT HIM TO UNDERTAKE ANY FURTHER
CRIMINAL MATTERS, AND THAT IT WOULD THUS BE BEST FOR PETITIONER TO
SECURE ANOTHER ATTORNEY PROMPTLY SO AS NOT TO FORFEIT HIS RIGHT TO
APPEAL.  THE ATTORNEY RECALLED THAT THIS CONFERENCE LASTED FOR ABOUT AN
HOUR AND A HALF - PETITIONER, THAT IT LASTED FOR ONLY A FEW MINUTES. 
IN ANY EVENT, PETITIONER WAS THEN TAKEN BACK TO THE MEDICAL CENTER AT
WHICH HE HAD BEEN QUARTERED DURING THE TRIAL.  (FN2)  EARLY THE NEXT
MORNING, HE WAS TRANSFERRED TO HOSPITAL FACILITIES AT ATLANTA TO
COMMENCE HIS SENTENCE.  AT NEITHER PLACE WAS HE PERMITTED TO HAVE
VISITORS. 

ON JANUARY 29, 14 DAYS AFTER SENTENCING, THE CLERK OF THE COURT IN
WHICH PETITIONER HAD BEEN CONVICTED RECEIVED LETTERS FROM PETITIONER
ASKING FOR A NEW TRIAL AND FOR AN APPEAL.  THE LETTERS WERE DATED
JANUARY 23 BY PETITIONER, AND WERE MAILED IN A SINGLE ENVELOPE WHICH
BORE A GOVERNMENT FRANK BUT NO POSTMARK.  NO COMMUNICATIONS HAD BEEN
RECEIVED IN THE INTERIM FROM EITHER PETITIONER OR HIS COURT-APPOINTED
COUNSEL. 

THE CHIEF JUDGE OF THE DISTRICT THEN REAPPOINTED THE SAME ATTORNEY
FOR THE PURPOSE OF PRESENTING THE MOTION FOR A NEW TRIAL TO THE TRIAL
JUDGE AT A HEARING WHICH WAS SET FOR THAT PURPOSE.  IN DUE COURSE THE
MOTION WAS DENIED ON THE MERITS, THE TIME QUESTION HAVING BEEN ARGUED
BUT NOT DECIDED.  ON THE SAME DAY, PETITIONER'S REAPPOINTED ATTORNEY
FILED A NOTICE OF APPEAL AND PETITIONER WAS GRANTED LEAVE TO APPEAL IN
FORMA PAUPERIS.  THEREAFTER A NEW ATTORNEY WAS APPOINTED TO REPRESENT
PETITIONER BEFORE THE COURT OF APPEALS AND THE CASE WAS SET FOR HEARING
ON THE GOVERNMENT'S MOTION TO DISMISS THE APPEAL BECAUSE THE NOTICE WAS
NOT TIMELY FILED. 

A DIVIDED COURT OF APPEALS HELD, FIRST, THAT PETITIONER'S MOTION FOR
A NEW TRIAL WAS NOT TIMELY FILED, AND THAT THE CONSIDERATION OF THE
MOTION ON THE MERITS BY THE TRIAL JUDGE WAS IN ERROR AND THUS COULD NOT
SERVE TO EXTEND THE TIME FOR FILING A NOTICE OF APPEAL.  (FN3)  IT THEN
HELD THAT THE TIME FOR FILING THE NOTICE BEGAN ON JANUARY 15 WHEN
PETITIONER WAS SENTENCED, AND EXPIRED WHEN ON JANUARY 25 THE CLERK HAD
NOT RECEIVED THE NOTICE.  306 F.2D 697.  WE GRANTED CERTIORARI, 374
U.S. 816, TO CONSIDER WHETHER THE RESTRICTIVE READING OF THE RULES BY
THE COURT BELOW WAS JUSTIFIED UNDER THE CIRCUMSTANCES OF THIS CASE.  WE
HAVE CONCLUDED THAT IT WAS NOT, AND ACCORDINGLY REMAND THE CASE FOR A
DISPOSITION OF PETITIONER'S APPEAL ON THE MERITS. 

RULE 37(A) PROVIDES THAT "AN APPEAL BY A DEFENDANT MAY BE TAKEN WITHIN
10 DAYS AFTER ENTRY OF THE JUDGMENT OR ORDER APPEALED FROM  ...  " AND
THAT AN APPEAL IS TAKEN "BY FILING WITH THE CLERK OF THE DISTRICT COURT
A NOTICE OF APPEAL  ...  ."  THE COURT OF APPEALS HAS READ THIS TO MEAN
THAT, IRRESPECTIVE OF THE REASON FOR THE DELAY, THE NOTICE OF APPEAL
MUST ACTUALLY BE IN THE HANDS OF THE CLERK ON OR BEFORE THE 10TH DAY. 
SINCE THE TIMELY FILING OF A NOTICE OF APPEAL IS A JURISDICTIONAL
PREREQUISITE TO THE HEARING OF THE APPEAL, THE COURT THUS FELT
POWERLESS TO DO ANYTHING BUT TO DISMISS. 

OVERLOOKED, IN OUR VIEW, WAS THE FACT THAT THE RULES ARE NOT, AND
WERE NOT INTENDED TO BE, A RIGID CODE TO HAVE AN INFLEXIBLE MEANING
IRRESPECTIVE OF THE CIRCUMSTANCES.  RULE 2 BEGINS WITH THE ADMONITION
THAT "THESE RULES ARE INTENDED TO PROVIDE FOR THE JUST DETERMINATION OF
EVERY CRIMINAL PROCEEDING.  THEY SHALL BE CONSTRUED TO SECURE
SIMPLICITY IN PROCEDURE, FAIRNESS IN ADMINISTRATION AND THE ELIMINATION
OF UNJUSTIFIABLE EXPENSE AND DELAY."  THAT THE RULES WERE NOT
APPROACHED WITH SYMPATHY FOR THEIR PURPOSE IS APPARENT WHEN THE
CIRCUMSTANCES OF THIS CASE ARE EXAMINED. 

IN THE FIRST PLACE, IN SPITE OF THE PROMISE OF THE RULE,  (FN4)
PETITIONER WAS FORCED TO TAKE HIS APPEAL WITHOUT THE ASSISTANCE OF
COUNSEL.  HE WAS WHISKED AWAY FROM THE PLACE OF TRIAL (JACKSONVILLE,
FLORIDA) ON THE DAY AFTER HE WAS SENTENCED, AND, AS HE TELLS IT WITHOUT
CONTRADICTION IN THE RECORD, NOT PERMITTED TO HAVE VISITORS, NOR
AFFORDED THE OPPORTUNITY TO SECURE ANOTHER ATTORNEY.  IN ADDITION TO
HIS NORMAL PHYSICAL PROBLEMS, HE WAS ILL,  (FN5) AND WAS THUS CONFINED
IN A HOSPITAL BOTH IN JACKSONVILLE AND IN ATLANTA. 

IT WAS NOT UNTIL JANUARY 23, AS HE TELLS IT, AGAIN WITHOUT
CONTRADICTION IN THE RECORD, THAT HE FELT WELL ENOUGH TO WRITE.  ACTING
WITHOUT ADVICE AS TO THE REQUIREMENTS OF TIME, EXCEPT THAT WHICH HE
COULD ACQUIRE FROM OTHER INMATES, HE THEN WROTE TWO LETTERS ASKING FOR
A NEW TRIAL AND FOR THE APPEAL WHICH THE TRIAL JUDGE PROMISED THAT "THE
GOVERNMENT PROVIDES."  THESE LETTERS WERE PROMPTLY MAILED ON JANUARY
23, FOR ALL THE RECORD SHOWS, AND BY COINCIDENCE, NO DOUBT, WOULD THUS
IN THE NORMAL COURSE OF EVENTS HAVE BEEN RECEIVED BY THE CLERK WITHIN
THE 10 DAYS.  (FN6) 

THAT THEY WERE NOT RECEIVED WITHIN 10 DAYS, HOWEVER, IS PERHAPS
EXPLAINED BY THE GOVERNMENT'S DISCLOSURE AT ORAL ARGUMENT THAT MAIL
PICKUPS AT ATLANTA AT THAT TIME OCCURRED ONLY TWICE A WEEK, ON TUESDAYS
AND FRIDAYS.  THUS, IF PETITIONER DEPOSITED THE LETTERS WITH PRISON
AUTHORITIES AFTER THE HOUR OF PICKUP ON JANUARY 23, A TUESDAY - AND
THERE IS NOTHING IN THE RECORD TO SHOW THAT ANYONE TOOK THE TROUBLE TO
TELL HIM ABOUT SUCH MAILING DELAYS - HIS LETTERS WOULD NOT HAVE BEEN
PLACED IN THE MAIL BY PRISON AUTHORITIES UNTIL FRIDAY.  THEY THUS
PROBABLY WOULD NOT HAVE BEEN RECEIVED BY THE CLERK'S OFFICE UNTIL
MONDAY THE 19TH, THE DAY ON WHICH THEY WERE ACTUALLY MARKED RECEIVED BY
THE CLERK. 

BUT WHETHER OR NOT THIS IN FACT OCCURRED, THERE IS NO REASON ON THE
BASIS OF WHAT THIS RECORD DISCLOSES TO DOUBT THAT PETITIONER'S DATE AT
THE TOP OF THE LETTER WAS AN ACCURATE ONE AND THAT SUBSEQUENT DELAYS
WERE NOT CHARGEABLE TO HIM.  CF. ROSENBLOOM V. UNITED STATES, 355 U.S.
80.  THERE IS NO POSTMARK ON THE ENVELOPE, NOR ANY INDICATION OF THE
TIME AT WHICH THE ENVELOPE CAME INTO THE HANDS OF PRISON OFFICIALS. 
OTHER LETTERS ALSO MAILED BY PETITIONER FROM THE PRISON TOOK AN EQUALLY
LONG TIME TO GET TO THEIR DESTINATION.  AND ALTHOUGH THE GOVERNMENT HAD
THE OPPORTUNITY, IT INTRODUCED NO EVIDENCE - AND ADMITTED ON ORAL
ARGUMENT THAT IT HAD NONE - TO DISPUTE THE RECORD FACTS THAT PETITIONER
HAD DONE ALL THAT COULD REASONABLY BE EXPECTED TO GET THE LETTER TO ITS
DESTINATION WITHIN THE REQUIRED 10 DAYS.  SINCE PETITIONER DID ALL HE
COULD UNDER THE CIRCUMSTANCES, WE DECLINE TO READ THE RULES SO RIGIDLY
AS TO BAR A DETERMINATION OF HIS APPEAL ON THE MERITS. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE
REMANDED FOR A PROMPT DISPOSITION OF THE APPEAL ON THE MERITS.  IT IS
SO ORDERED. 

FN1  SPECIFICALLY, 18 U.S.C. SECS 371, 641, 2115. 

FN2  AS THE RESULT OF AN AUTOMOBILE ACCIDENT IN 1951, PETITIONER IS A
PARAPLEGIC CONFINED TO A WHEELCHAIR.  IN ADDITION TO COMPLICATIONS
WHICH HAVE RESULTED FROM HIS AFFLICTION, PETITIONER WAS AT THE TIME OF
SENTENCING SUFFERING FROM THE FLU.  HE WAS KEPT IN MEDICAL FACILITIES,
IT APPEARS, MORE BECAUSE OF HIS FLU THAN HIS MORE PERMANENT CONDITION. 

FN3  RULE 37(A)(2) PROVIDES THAT IF A MOTION FOR A NEW TRIAL IS MADE
WITHIN THE 10 DAYS DURING WHICH AN APPEAL MUST BE TAKEN, THE APPEAL
FROM THE JUDGMENT OF CONVICTION MAY BE TAKEN WITHIN 10 DAYS FROM THE
DENIAL OF THE MOTION. 

FN4  RULE 37(A)(2) PROVIDES THAT "WHEN A COURT AFTER TRIAL IMPOSES
SENTENCE UPON A DEFENDANT NOT REPRESENTED BY COUNSEL, THE DEFENDANT
SHALL BE ADVISED OF HIS RIGHT TO APPEAL AND IF HE SO REQUESTS, THE
CLERK SHALL PREPARE AND FILE FORTHWITH A NOTICE OF APPEAL ON BEHALF OF
THE DEFENDANT."  ALTHOUGH COUNSEL WAS PHYSICALLY PRESENT AT SENTENCING,
IT IS AN OPEN QUESTION WHETHER PETITIONER WAS "REPRESENTED" BY COUNSEL
WITHIN THE MEANING AND PURPOSE OF THE RULE. 

FN5  SEE NOTE 2, SUPRA. 

FN6  JANUARY 23 WAS THE EIGHTH DAY AFTER SENTENCING, AND THE PARTIES
ARE AGREED THAT A LETTER MAILED ON THE 23D IN ATLANTA WOULD NORMALLY BE
RECEIVED IN JACKSONVILLE BY THE 25TH. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND
MR. JUSTICE BRENNAN JOIN, CONCURRING. 

I THINK THAT FOR PURPOSES OF RULE 37(A)(2), A DEFENDANT INCARCERATED
IN A FEDERAL PRISON AND ACTING WITHOUT THE AID OF COUNSEL FILES HIS
NOTICE OF APPEAL IN TIME, IF, WITHIN THE 10-DAY PERIOD PROVIDED BY THE
RULE, HE DELIVERS SUCH NOTICE TO THE PRISON AUTHORITIES FOR FORWARDING
TO THE CLERK OF THE DISTRICT COURT.  IN OTHER WORDS, IN SUCH A CASE THE
JAILER IS IN EFFECT THE CLERK OF THE DISTRICT COURT WITHIN THE MEANING
OF RULE 37.  IF ALL WE HAD TO GO ON IN THIS CASE WAS THE DATE THE
PETITIONER WROTE AT THE TOP OF HIS LETTER, I THINK WE SHOULD REMAND THE
CASE FOR RESOLUTION OF THE FACTUAL QUESTION AS TO WHEN THE LETTER WAS
ACTUALLY DELIVERED TO THE PRISON AUTHORITIES FOR MAILING.   BUT
GOVERNMENT COUNSEL EXPRESSLY CONCEDED DURING ORAL ARGUMENT THAT THE
PETITIONER IN FACT ENTRUSTED HIS NOTICE OF APPEAL TO THE PRISON
AUTHORITIES WITHIN THE 10-DAY PERIOD.  MOREOVER, WE WERE ADVISED BY
COUNSEL THAT PROCEDURES HAVE NOW BEEN INAUGURATED AT THE FEDERAL
PRISONS TO MAKE CERTAIN THAT THE EXACT TIME OF RECEIPT WILL BE MARKED
ON ALL PAPERS THAT ARE FILED WITH THE AUTHORITIES FOR MAILING.  FOR
THESE REASONS I CONCUR IN THE JUDGMENT OF THE COURT, REMANDING THE CASE
FOR A PROMPT DISPOSITION OF THE APPEAL ON THE MERITS. 
..END :











BARR V. CITY OF COLUMBIA 378 U.S. 146 


NO. 9.  ARGUED OCTOBER 14-15, 1963, - DECIDED JUNE 22, 1964.  -
JUDGMENTS OF CONVICTION IN 239 S.C. 395, 123 S.E.2D 521, FOR BREACH OF
THE PEACE REVERSED AND REMANDED; AND FOR CRIMINAL TRESPASS REVERSED AND
REMANDED PER CURIAM FOR REASONS STATED IN BOUIE V. CITY OF COLUMBIA,
POST, P. 347. 


PETITIONERS, NEGRO "SIT-IN" DEMONSTRATORS, WERE ARRESTED BY POLICE
OFFICERS FOR CRIMINAL TRESPASS AND BREACH OF THE PEACE FOLLOWING THEIR
PEACEFUL REFUSAL TO LEAVE A COLUMBIA, SOUTH CAROLINA, DRUG STORE LUNCH
COUNTER WHERE THEY HAD BEEN REFUSED SERVICE.  IN APPEALING CONVICTIONS
FOR BREACH OF THE PEACE, THE PETITIONERS TOOK GENERAL EXCEPTIONS WHICH,
THOUGH THE SAME AS THOSE THE STATE SUPREME COURT HELD ADEQUATE TO RAISE
QUESTIONS OF THE SUFFICIENCY OF THE EVIDENCE IN OTHER RECENT CASES,
WERE HELD BY THAT COURT WHICH AFFIRMED LOWER COURT CONVICTIONS ON BOTH
CHARGES IN THIS CASE, TO BE INADEQUATE FOR THAT PURPOSE HERE.  HELD: 

1.  STATE PROCEDURAL REQUIREMENTS NOT STRICTLY OR REGULARLY FOLLOWED
CANNOT DEPRIVE THIS COURT OF THE RIGHT TO REVIEW.  P. 149. 

2.  THIS COURT WILL NOT ASSUME THAT THE STATE SUPREME COURT ON THE
MERITS WOULD HAVE HELD PETITIONERS PUNISHABLE FOR BOTH TRESPASS AND
BREACH OF THE PEACE BASED ON THEIR PEACEFULLY REMAINING AT THE LUNCH
COUNTER AFTER THEY HAD BEEN ASKED TO LEAVE.  P. 150. 

3.  THE BREACH-OF-PEACE CONVICTIONS CANNOT STAND, THERE HAVING BEEN
NO EVIDENCE TO SUPPORT THEM.  THOMPSON V. CITY OF LOUISVILLE, 362 U.S.
199, FOLLOWED.  P. 151. 

BARR ET AL. V. CITY OF COLUMBIA. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

LIKE BOUIE V. CITY OF COLUMBIA, POST, P. 347, THIS CASE INVOLVES A
"SIT-IN" DEMONSTRATION IN COLUMBIA, SOUTH CAROLINA, THIS ONE AT THE
TAYLOR STREET PHARMACY.  NEGROES AND WHITES ALIKE ARE INVITED TO COME
AND BUY GOODS IN ALL THE STORE'S DEPARTMENTS, BUT THE LUNCH COUNTER,
WHILE IT SELLS FOOD TO NEGROES TO TAKE OUT, HAS A POLICY OF REFUSING TO
LET THEM SIT THERE AND EAT.  PETITIONERS, FIVE NEGRO COLLEGE STUDENTS,
ENTERED THE STORE AND AFTER SOME OF THEM HAD MADE PURCHASES IN THE
FRONT PART PROCEEDED TO THE LUNCH COUNTER AT THE REAR, WHERE THEY SAT
DOWN AND WAITED FOR SERVICE.  THE STORE MANAGER HAD ARRANGED THE DAY
BEFORE FOR THE POLICE TO COME AND ARREST ANY "SIT-IN" DEMONSTRATORS WHO
MIGHT REFUSE TO LEAVE AFTER BEING REQUESTED TO DO SO.  AS A RESULT,
THREE OFFICERS WERE WAITING AT THE STORE WHEN PETITIONERS ARRIVED.  THE
MANAGER ANNOUNCED TO PETITIONERS THAT HE WOULD NOT SERVE THEM AND THAT
THEY WOULD HAVE TO LEAVE; THEN, AT THE REQUEST OF ONE OF THE OFFICERS,
HE WENT WITH THE OFFICER TO EACH PETITIONER AND ASKED EACH PETITIONER
INDIVIDUALLY TO LEAVE.  WHEN PETITIONERS REMAINED SEATED AT THE
COUNTER, THEY WERE ARRESTED AND CHARGED WITH CRIMINAL TRESPASS (FN1)
AND BREACH OF THE PEACE.  (FN2)  THE RECORDER'S COURT CONVICTED THEM ON
BOTH CHARGES, THE COUNTY COURT AFFIRMED IN AN UNREPORTED OPINION, AND
THE SUPREME COURT OF SOUTH CAROLINA ALSO AFFIRMED.  239 S.C. 395, 123
S.E.2D 521.  LIKE THE PETITIONERS IN BOUIE, POST, THESE PETITIONERS
CLAIM THAT THEIR CONVICTIONS VIOLATE THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT, AND AS IN BOUIE WE
GRANTED CERTIORARI.  374 U.S. 804. 

WE CONSIDER FIRST THE QUESTION WHETHER PETITIONERS' CONVICTIONS FOR
BREACH OF THE PEACE ARE CONSTITUTIONALLY VALID.  APART FROM THE FACT
THAT PETITIONERS REMAINED IN THE STORE AFTER HAVING BEEN ASKED TO
LEAVE, THERE IS A COMPLETE AND UTTER LACK OF ANY EVIDENCE AND NO
SUGGESTION IN THE OPINIONS OF ANY OF THE COURTS BELOW, THAT ANY OF THE
PETITIONERS DID ANYTHING DISORDERLY OR DID ANYTHING OTHER THAN POLITELY
ASK FOR SERVICE.  PETITIONERS ARGUE THAT EITHER THE BREACH-OF-PEACE
STATUTE AS APPLIED TO THEIR CONDUCT WAS UNCONSTITUTIONALLY VAGUE FOR
FAILURE TO GIVE FAIR WARNING, CF. LANZETTA V. NEW JERSEY, 306 U.S. 451,
OR THERE WAS NO EVIDENCE TO SUPPORT CONVICTIONS FOR VIOLATION OF THAT
STATUTE, CF. THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199.  THE CITY
REPLIES THAT, BECAUSE THE SUPREME COURT OF SOUTH CAROLINA REFUSED TO
PASS ON OBJECTIONS TO THE BREACH-OF-PEACE CONVICTION ON THE GROUND THAT
THE EXCEPTIONS TAKEN BELOW WERE "TOO GENERAL TO BE CONSIDERED,"  (FN3)
WE ARE PRECLUDED FROM CONSIDERING PETITIONERS' CONSTITUTIONAL
OBJECTIONS.  THE EXCEPTIONS ON THIS POINT READ: 

"1.  THE COURT ERRED IN REFUSING TO HOLD THAT THE CITY FAILED TO
PROVE A PRIMA FACIE CASE. 

"2.  THE COURT ERRED IN REFUSING TO HOLD THAT THE CITY FAILED TO
ESTABLISH THE CORPUS DELICITI." 

WE CANNOT ACCEPT THE CITY'S ARGUMENT, SINCE IN CITY OF COLUMBIA V.
BOUIE, 239 S.C.  570, 124 S.E.2D 332, REV'D ON ANOTHER POINT, POST, P.
347, DECIDED ONLY A FEW WEEKS AFTER THE PRESENT CASE, THE STATE SUPREME
COURT HAD BEFORE IT THE IDENTICAL TWO EXCEPTIONS, AND RELYING ON THEM
REVERSED FOR INSUFFICIENCY OF EVIDENCE THE CONVICTION OF A PEACEFUL AND
QUIET SIT-IN DEMONSTRATOR WHO HAD BEEN CONVICTED ON A CHARGE OF
RESISTING ARREST.  IN THREE OTHER CASES DECIDED IN THE TWO-MONTH PERIOD
PRECEDING THE PRESENT DECISION IT LIKEWISE CONSIDERED THESE SAME
EXCEPTIONS ENOUGH TO RAISE THE QUESTION OF SUFFICIENCY OF EVIDENCE, AND
IN ONE OF THOSE THREE CASES, DECIDED THE DAY BEFORE THE PRESENT ONE, IT
REVERSED ON THAT GROUND A CONVICTION FOR INTERFERING WITH AN OFFICER. 
(FN4)  WE HAVE OFTEN POINTED OUT THAT STATE PROCEDURAL REQUIREMENTS
WHICH ARE NOT STRICTLY OR REGULARLY FOLLOWED CANNOT DEPRIVE US OF THE
RIGHT TO REVIEW.  SEE, E.G., NAACP V. ALABAMA EX REL. FLOWERS, 377 U.S.
288; SHUTTLESWORTH V. CITY OF BIRMINGHAM, 376 U.S. 339; WRIGHT V.
GEORGIA, 373 U.S. 284; NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S.
449.  WE CONCLUDE THAT THERE IS NO ADEQUATE STATE GROUND BARRING OUR
REVIEW OF THE BREACH-OF-PEACE CONVICTIONS. 

TURNING TO THE MERITS, THE ONLY EVIDENCE TO WHICH THE CITY REFERS TO
JUSTIFY THE BREACH-OF-PEACE CONVICTIONS HERE, AND THE ONLY POSSIBLY
RELEVANT EVIDENCE WHICH WE HAVE BEEN ABLE TO FIND IN THE RECORD, IS A
SUGGESTION THAT PETITIONERS' MERE PRESENCE SEATED AT THE COUNTER MIGHT
POSSIBLY HAVE TENDED TO MOVE ONLOOKERS TO COMMIT ACTS OF VIOLENCE.  AS
WE POINTED OUT ABOVE, IT IS UNDISPUTED IN THE RECORD THAT PETITIONERS
WERE POLITE, QUIET, AND PEACEFUL FROM THE TIME THEY ENTERED THE STORE
TO THE TIME THEY LEFT.  AND AS THE CITY CONCEDES, "IT CANNOT BE SAID
THAT THE SOUTH CAROLINA SUPREME COURT HAS, UPON PROPER PRESENTATION AND
PROPER BRIEFING, HELD THAT THE ACTS OF THE PETITIONERS ARE CLEARLY
WITHIN THE PROHIBITIONS OF THE STATUTES INVOLVED."  ACCORDINGLY, WE ARE
UNWILLING TO ASSUME AND FIND IT HARD TO BELIEVE THAT THE STATE SUPREME
COURT IF IT HAS PASSED ON THE POINT  (FN5) WOULD HAVE HELD THAT
PETITIONERS COULD BE PUNISHED FOR TRESPASS AND FOR BREACH OF THE PEACE
AS WELL, BASED ON THE SINGLE FACT THAT THEY HAD REMAINED AFTER THEY HAD
BEEN ORDERED TO LEAVE.  AND FURTHER, BECAUSE OF THE FREQUENT OCCASIONS
ON WHICH WE HAVE REVERSED UNDER THE FOURTEENTH AMENDMENT CONVICTIONS OF
PEACEFUL INDIVIDUALS WHO WERE CONVICTED OF BREACH OF THE PEACE BECAUSE
OF THE ACTS OF HOSTILE ONLOOKERS, WE ARE RELUCTANT TO ASSUME THAT THE
BREACH-OF-PEACE STATUTE COVERS PETITIONERS' CONDUCT HERE.  CF., E.G.,
HENRY V. CITY OF ROCK HILL, 376 U.S. 776; WRIGHT V. GEORGIA, SUPRA;
EDWARDS V. SOUTH CAROLINA, 372 U.S. 229; TAYLOR V. LOUISIANA, 370 U.S.
154; GARNER V. LOUISIANA, 368 U.S. 157; TERMINIELLO V. CHICAGO, 337
U.S. 1.  SINCE THERE WAS NO EVIDENCE TO SUPPORT THE BREACH-OF-PEACE
CONVICTIONS, THEY SHOULD NOT STAND.  THOMPSON V. CITY OF LOUISVILLE,
362 U.S. 199.  (FN6) 

THE JUDGMENTS OF CONVICTION FOR BREACH OF THE PEACE ARE REVERSED AND
THE CASE IS REMANDED FOR PRECEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  SECTION 16-386, CODE OF LAWS OF SOUTH CAROLINA, 1952 (1960
SUPP.). 

FN2  SECTION 15-909, CODE OF LAWS OF SOUTH CAROLINA, 1952, PROVIDES: 

"DISORDERLY CONDUCT, ETC. - THE MAYOR OR INTENDANT AND ANY ALDERMAN,
COUNCILMAN OR WARDEN OF ANY CITY OR TOWN IN THIS STATE MAY IN PERSON
ARREST OR MAY AUTHORIZE AND REQUIRE ANY MARSHAL OR CONSTABLE ESPECIALLY
APPOINTED FOR THAT PURPOSE TO ARREST ANY PERSON WHO, WITHIN THE
CORPORATE LIMITS OF SUCH CITY OR TOWN, MAY BE ENGAGED IN A BREACH OF
THE PEACE, ANY RIOTOUS OR DISORDERLY CONDUCT, OPEN OBSCENITY, PUBLIC
DRUNKENNESS OR ANY OTHER CONDUCT GROSSLY INDECENT OR DANGEROUS TO THE
CITIZENS OF SUCH CITY OR TOWN OR ANY OF THEM.  UPON CONVICTION BEFORE
THE MAJOR OR INTENDANT OR CITY OR TOWN COUNCIL IS SUCH PERSON MAY BE
COMMITTED TO THE GUARDHOUSE WHICH THE MAYOR OR INTENDANT OR CITY OR
TOWN COUNCIL IS AUTHORIZED TO ESTABLISH OR TO THE COUNTY JAIL OR TO THE
COUNTY CHAINGANG FOR A TERM NOT EXCEEDING THIRTY DAYS AND IF SUCH
CONVICTION BE FOR DISORDERLY CONDUCT SUCH PERSON MAY ALSO BE FINED NOT
EXCEEDING ONE HUNDRED DOLLARS; PROVIDED, THAT THIS SECTION SHALL NOT BE
CONSTRUED TO PREVENT TRIAL BY JURY." 

FN3  239 S.C., AT 399, 123 S.E.2D, AT 523. 

FN4  CITY OF CHARLESTON V. MITCHELL, 239 S.C. 376, 123 S.E.2D 512,
REV'D ON ANOTHER POINT, POST, P. 551.  SEE ALSO STATE V. EDWARDS, 239
S.C. 339, 123 S.E.2D 247, REV'D ON ANOTHER POINT SUB NOM. EDWARDS V.
SOUTH CAROLINA, 372 U.S. 229; CITY OF GREENVILLE V. PETERSON, 239 S.C.
298, 122 S.E.2D 826, REV'D ON ANOTHER POINT, 373 U.S. 244 (ALLEGATION
OF FAILURE TO ESTABLISH CORPUS DELICTI ONLY). 

FN5  THE CITY CITES NO DECISION OF THE SUPREME COURT OF SOUTH
CAROLINA WHICH SUPPORTS ITS POSITION ON THIS ISSUE.  STATE V. EDWARDS,
239 S.C. 339, 123 S.E.2D 247, REV'D SUB NOM. EDWARDS V. SOUTH CAROLINA,
372 U.S. 229, FROM WHICH THE CITY QUOTES, DID NOT INVOLVE THIS STATUTE
AND IS NOT OTHERWISE PERSUASIVE. 

FN6  WE DO NOT REACH PETITIONERS' CONTENTION THAT THEIR BREACH-OF
PEACE CONVICTIONS WERE VOID FOR VAGUENESS UNDER THE DOCTRINE OF
LANZETTA V. NEW JERSEY, 306 U.S. 451. 

PER CURIAM. 

WITH RESPECT TO THE CRIMINAL TRESPASS CONVICTIONS, THOSE JUDGMENTS
ARE ALSO REVERSED AND THE CASE REMANDED FOR THE REASONS STATED IN BOUIE
V. CITY OF COLUMBIA, POST, P. 347. 

MR. JUSTICE DOUGLAS WOULD REVERSE FOR THE REASONS STATED IN HIS
OPINION IN BELL V. MARYLAND, POST, P. 242. 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE JOINS, WOULD, WHILE
JOINING IN THE OPINION AND JUDGMENTS OF THE COURT, ALSO REVERSE FOR THE
REASONS STATED IN THE CONCURRING OPINION OF MR. JUSTICE GOLDBERG IN
BELL V. MARYLAND, POST, P. 286. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE WHITE
JOIN, DISSENTING FROM THE REVERSAL OF THE TRESPASS CONVICTIONS. 

WE HAVE STATED IN OUR OPINIONS IN BOUIE V. CITY OF COLUMBIA, POST, P.
363, AND BELL V. MARYLAND, POST, P. 318, OUR BELIEF THAT THE MERE FACT
THAT POLICE RESPONDED TO THE CALL OF A STOREKEEPER AND ARRESTED PEOPLE
WHO WERE REMAINING IN THE STORE OVER HIS PROTEST WAS NOT ENOUGH TO
CONSTITUTE "STATE ACTION" WITHIN THE MEANING OF THE FOURTEENTH
AMENDMENT.  A REVIEW OF THE EVIDENCE IN THE CASE BEFORE US CONVINCES US
THAT THE OFFICERS HERE DID NOTHING WHICH WOULD JUSTIFY A HOLDING THAT
THEY WERE ACTING FOR THE STATE IN ANY CAPACITY EXCEPT TO ARREST PEOPLE
WHO VIOLATED THE TRESPASS STATUTE BY REMAINING ON THE PROPERTY OF
ANOTHER AFTER HAVING BEEN ASKED TO LEAVE.  PETITIONERS' OTHER
OBJECTIONS RELATING TO VAGUENESS OF THE TRESPASS STATUTE AND ALLEGED
ABSENCE OF EVIDENCE TO SUPPORT THE TRESPASS CONVICTIONS ARE IDENTICAL
TO THOSE WHICH WE CONSIDERED AND REJECTED IN OUR OPINION IN BOUIE.  WE
BELIEVE THEREFORE THAT THE TRESPASS CONVICTIONS SHOULD STAND. 
..END :






















ROBINSON V. FLORIDA 378 U.S. 153 


NO. 60.  ARGUED OCTOBER 15, 1963.  - DECIDED JUNE 22, 1964.  - 144 SO.
2D 811, REVERSED. 


FOLLOWING REFUSAL BY APPELLANTS, NEGROES AND WHITES, TO LEAVE A MIAMI,
FLORIDA, RESTAURANT, THEY WERE ARRESTED AND CONVICTED UNDER A STATE
MISDEMEANOR STATUTE PROSCRIBING A GUEST'S REMAINING AT A RESTAURANT
AFTER HAVING BEEN ASKED TO LEAVE BY THE MANAGEMENT.  THE STATE SUPREME
COURT AFFIRMED, HOLDING THE STATUTE DID NOT DENY EQUAL PROTECTION OF
THE LAWS.  AT THE TIME OF THE ARREST A STATE HEALTH BOARD REGULATION
APPLICABLE TO RESTAURANTS AND ADOPTED UNDER THE LEGISLATURE'S AUTHORITY
REQUIRED SEGREGATED REST ROOMS AND THE STATE HAD ISSUED A MANUAL BASED
ON STATE REGULATIONS REQUIRING SEGREGATED FACILITIES.  HELD:  THE
REGULATIONS EMBODYING A STATE POLICY WHICH DISCOURAGED SERVING THE TWO
RACES TOGETHER, INVOLVED THE STATE SO SIGNIFICANTLY IN CAUSING
RESTAURANT SEGREGATION AS TO VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  PETERSON V. CITY OF GREENVILLE, 373 U.S. 244,
FOLLOWED.  PP. 153-157. 

ROBINSON ET AL. V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A CRIMINAL INFORMATION FILED IN A FLORIDA STATE COURT CHARGED THAT
THESE EIGHTEEN APPELLANTS HAD VIOLATED SEC 509.141 OF THE FLORIDA
STATUTES BY REMAINING IN A RESTAURANT AFTER THE MANAGER HAD REQUESTED
THEM TO LEAVE.  (FN1)  THE MATERIAL FACTS ARE NOT IN DISPUTE AND SHOW:
SHELL'S CITY RESTAURANT, WHICH IS ONE OF NINETEEN DEPARTMENTS IN
SHELL'S DEPARTMENT STORE IN MIAMI, HAD, AT THE TIME OF APPELLANTS'
ARREST, A POLICY OF REFUSING TO SERVE NEGROES.  APPELLANTS, NEGROES AND
WHITES, WENT AS A GROUP INTO THE RESTAURANT AND SEATED THEMSELVES AT
TABLES.  IN ACCORDANCE WITH THE RESTAURANT'S POLICY, THE MANAGER TOLD
APPELLANTS THEY WOULD NOT BE SERVED.  THE MANAGER CALLED THE POLICE
AND, ACCOMPANIED BY ONE POLICEMAN, WENT TO EACH TABLE, AGAIN TOLD
APPELLANTS THEY WOULD NOT BE SERVED, AND REQUESTED THEM TO LEAVE.  THEY
REFUSED.  THE POLICE OFFICERS THEN ADVISED THEM TO LEAVE, AND WHEN
APPELLANTS PERSISTED IN THEIR REFUSAL THE POLICE PLACED THEM ALL UNDER
ARREST. 

AT THE TRIAL, THE SHELL'S CITY MANAGEMENT EXPLAINED THAT, WHILE
NEGROES WERE WELCOMED AS CUSTOMERS IN THE STORE'S OTHER DEPARTMENTS,
SERVING NEGROES IN THE RESTAURANT WOULD BE "VERY DETRIMENTAL TO OUR
BUSINESS" BECAUSE OF THE OBJECTIONS OF WHITE CUSTOMERS.  AFTER THESE
FACTS HAD BEEN BROUGHT OUT DURING THE EXAMINATION OF THE STATE'S
WITNESSES, APPELLANTS MOVED FOR A DIRECTED VERDICT ON THE GROUND THAT
THEIR ARREST, PROSECUTION, AND CONVICTION BY THE STATE ON THIS EVIDENCE
WOULD AMOUNT TO STATE DISCRIMINATION AGAINST THEM ON ACCOUNT OF COLOR,
THEREBY VIOLATING THE FOURTEENTH AMENDMENT'S GUARANTEE OF EQUAL
PROTECTION OF THE LAWS.  THIS MOTION WAS DENIED.  THE APPELLANTS
CALLING NO WITNESSES, THE TRIAL COURT STAYED THE ADJUDICATION OF GUILT
AND THE IMPOSITION OF SENTENCE AND PLACED APPELLANTS ON PROBATION, AS
AUTHORIZED BY SEC 948.01(3) OF THE FLORIDA STATUTES.  ON APPEAL, AFTER
VARIOUS JURISDICTIONAL RULINGS IN THE FLORIDA APPELLATE COURTS,  (FN2)
THE SUPREME COURT OF FLORIDA AFFIRMED, HOLDING THE STATUTE UNDER WHICH
APPELLANTS WERE CONVICTED TO BE NONDISCRIMINATORY.   144 SO. 2D 811. 
THE CASE IS PROPERLY HERE ON APPEAL UNDER 28 U.S.C.  SEC 1257(2), AND
WE NOTED PROBABLE JURISDICTION.  374 U.S. 803. 

IN THIS CASE WE DO NOT REACH THE BROAD QUESTION WHETHER THE
FOURTEENTH AMENDMENT OF ITS OWN FORCE FORBIDS A STATE TO ARREST AND
PROSECUTE THOSE WHO, HAVING BEEN ASKED TO LEAVE A RESTAURANT BECAUSE OF
THEIR COLOR, REFUSE TO DO SO.  FOR HERE THERE ARE ADDITIONAL
CIRCUMSTANCES WHICH, WE THINK, CALL FOR REVERSAL BECAUSE OF OUR HOLDING
IN PETERSON V. CITY OF GREENVILLE, 373 U.S. 244.  THE PETITIONERS IN
PETERSON WERE CONVICTED OF TRESPASS IN VIOLATION OF A CITY ORDINANCE
AFTER THEY HAD SEATED THEMSELVES AT A LUNCH COUNTER AND REMAINED THERE
OVER THE MANAGER'S PROTEST.  AT THAT TIME, HOWEVER, THERE EXISTED
ANOTHER GREENVILLE ORDINANCE WHICH MADE IT UNLAWFUL FOR RESTAURANTS TO
SERVE MEALS TO WHITE PERSONS AND COLORED PERSONS IN THE SAME ROOM OR AT
THE SAME TABLE OR COUNTER.  IN PETERSON THE CITY ARGUED THAT THE
MANAGER'S REFUSAL TO SERVE NEGROES WAS BASED ON HIS OWN PERSONAL
PREFERENCE, WHICH DID NOT AMOUNT TO "STATE ACTION" FORBIDDEN BY THE
FOURTEENTH AMENDMENT.  BUT WE HELD THAT THE CASE MUST BE DECIDED ON THE
BASIS OF WHAT THE ORDINANCE REQUIRED PEOPLE TO DO, NOT ON THE BASIS OF
WHAT THE MANAGER WANTED TO DO.  WE SAID: 

"WHEN A STATE AGENCY PASSES A LAW COMPELLING PERSONS TO DISCRIMINATE
AGAINST OTHER PERSONS BECAUSE OF RACE, AND THE STATE'S CRIMINAL
PROCESSES ARE EMPLOYED IN A WAY WHICH ENFORCES THE DISCRIMINATION
MANDATED BY THAT LAW, SUCH A PALPABLE VIOLATION OF THE FOURTEENTH
AMENDMENT CANNOT BE SAVED BY ATTEMPTING TO SEPARATE THE MENTAL URGES OF
THE DISCRIMINATORS,"  373 U.S., AT 248. 

SEE ALSO LOMBARD V. LOUISIANA, 373 U.S. 267. 

IN THE PRESENT CASE, WHEN APPELLANTS WERE ARRESTED AND TRIED THE
FLORIDA BOARD OF HEALTH HAD IN EFFECT A REGULATION, ADOPTED UNDER
"AUTHORITY OF THE FLORIDA LEGISLATURE" AND APPLICABLE TO RESTAURANTS,
WHICH PROVIDED THAT "WHERE COLORED PERSONS ARE EMPLOYED OR
ACCOMMODATED" SEPARATE TOILET AND LAVATORY ROOMS MUST BE PROVIDED. 
(FN3)  A MONTH BEFORE PETITIONERS WERE ARRESTED, THE STATE OF FLORIDA
HAD ISSUED A "FOOD AND DRINK SERVICES" MANUAL, BASED ON STATE
REGULATIONS.  THE MANUAL SAID THAT AS A "BASIC REQUIREMENT:" 

"SEPARATE FACILITES SHALL BE PROVIDED FOR EACH SEX AND FOR EACH RACE
WHETHER EMPLOYED OR SERVED IN THE ESTABLISHMENT." 

WHILE THESE FLORIDA REGULATIONS DO NOT DIRECTLY AND EXPRESSLY FORBID
RESTAURANTS TO SERVE BOTH WHITE AND COLORED PEOPLE TOGETHER, THEY
CERTAINLY EMBODY A STATE POLICY PUTTING BURDENS UPON ANY RESTAURANT
WHICH SERVES BOTH RACES, BURDENS BOUND TO DISCOURAGE THE SERVING OF THE
TWO RACES TOGETHER.  OF COURSE, STATE ACTION, OF THE KIND THAT FALLS
WITHIN THE PROSCRIPTION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, MAY BE BROUGHT ABOUT THROUGH THE STATE'S
ADMINISTRATIVE AND REGULATORY AGENCIES JUST AS THROUGH ITS
LEGISLATURE.  CF. LOMBARD V. LOUISIANA, SUPRA, 373 U.S., AT 273.  HERE
AS IN PETERSON V. CITY OF GREENVILLE, SUPRA, WE CONCLUDE THAT THE STATE
THROUGH ITS REGULATIONS HAS BECOME INVOLVED TO SUCH A SIGNIFICANT
EXTENT IN BRINGING ABOUT RESTAURANT SEGREGATION THAT APPELLANTS'
TRESPASS CONVICTIONS MUST BE HELD TO REFLECT THAT STATE POLICY AND
THEREFORE TO VIOLATE THE FOURTEENTH AMENDMENT. 

THE JUDGMENT OF THE SUPREME COURT OF FLORIDA IS REVERSED AND THE CASE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THE STATUTE SAYS THAT A MANAGER OR OTHER PERSON IN AUTHORITY AT
A RESTAURANT (AMONG OTHER PLACES NAMED IN THE STATUTE) SHALL HAVE THE
RIGHT TO REMOVE OR CAUSE TO BE REMOVED ANY PERSON "WHO, IN THE OPINION
OF THE MANAGEMENT, IS A PERSON WHOM IT WOULD BE DETRIMENTAL" TO THE
RESTAURANT TO SERVE.  THE MANAGEMENT MUST FIRST GIVE NOTICE, ORALLY OR
IN WRITING, THAT THE GUEST DEPART.  THE STATUTE THEN PROVIDES, "ANY
GUEST WHO SHALL REMAIN OR ATTEMPT TO REMAIN IN SUCH  ...  RESTAURANT
...  AFTER BEING REQUESTED, AS AFORESAID, TO DEPART THEREFROM, SHALL BE
GUILTY OF A MISDEMEANOR  ...  ."

FN2  SEE 132 SO. 2D 3 (SUPREME COURT OF FLORIDA); 132 SO. 2D 771
(DISTRICT COURT OF APPEAL OF FLORIDA). 

FN3  FLORIDA STATE SANITARY CODE, C. VII, SEC 6.  THE SUBSTANCE OF
THIS REGULATION WAS REISSUED ON JUNE 26, 1962, AND IS NOW PART OF
FLORIDA ADMINISTRATIVE CODE, C. 170C, SEC 8.06. 

MR. JUSTICE DOUGLAS WOULD REVERSE THE JUDGMENT BELOW FOR THE REASONS
STATED IN HIS OPINION IN NO. 12, BELL V. MARYLAND, POST, P. 242. 

MR. JUSTICE HARLAN, CONSIDERING HIMSELF BOUND BY PETERSON V. CITY OF
GREENVILLE, 373 U.S. 244, ACQUIESCES IN THE JUDGMENT OF THE COURT. 
..END :




















UNITED STATES V. PENN-OLIN CHEMICAL CO. 378 U.S. 158 


NO. 503.  ARGUED APRIL 30, 1964.  - DECIDED JUNE 22, 1964.  - 217 F.
SUPP. 110, JUDGMENT VACATED AND CASE REMANDED. 


IN 1960 PENNSALT CHEMICALS CORPORATION AND OLIN MATHIESON COMPANY
SIGNED A JOINT VENTURE AGREEMENT, EACH ACQUIRING 50% OF THE NEWLY
FORMED PENN-OLIN CHEMICAL COMPANY, WHICH BEGAN PRODUCING SODIUM
CHLORATE IN 1961 IN KENTUCKY.  THE GOVERNMENT SEEKS TO DISSOLVE THE
JOINT VENTURE AS VIOLATING SEC 7 OF THE CLAYTON ACT AND SEC 1 OF THE
SHERMAN ACT.  THE PARTIES AGREE THAT THE LINE OF COMMERCE IS SODIUM
CHLORATE AND THAT THE RELEVANT MARKET IS THE SOUTHEASTERN PART OF THE
UNITED STATES.  THE DISTRICT COURT DETERMINED THAT THE TEST UNDER THE
CLAYTON ACT IS WHETHER AS A MATTER OF PROBABILITY BOTH COMPANIES WOULD
HAVE ENTERED THE MARKET AS INDIVIDUAL COMPETITORS IF PENN-OLIN HAD NOT
BEEN FORMED.  THE COURT FOUND IT IMPOSSIBLE TO CONCLUDE THAT BOTH
COMPANIES WOULD HAVE SO ENTERED AND, FINDING THAT NEITHER STATUTE HAD
BEEN VIOLATED, DISMISSED THE COMPLAINT.  HELD: 

1.  SECTION 7 OF THE CLAYTON ACT APPLIES TO A JOINT VENTURE, WHEREIN
TWO COMPANIES FORM A THIRD TO ENGAGE IN A NEW ENTERPRISE.  PP. 167
168. 

(A)  THE TEST OF SEC 7 IS THE EFFECT OF THE ACQUISITION.  THE
FORMATION OF A JOINT VENTURE AND THE ACQUISITION OF ITS STOCK WOULD
SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE OWNERS, IF BOTH ARE
ENGAGED IN COMMERCE.  THIS IS TRUE WHETHER THE COMPETITION BETWEEN THE
JOINT VENTURES IS ACTUAL OR POTENTIAL, OR WHETHER THE NEW COMPANY IS
FORMED FOR A WHOLLY NEW ENTERPRISE, BECAUSE THE NEW COMPANY IS
ESTABLISHED TO ENGAGE IN COMMERCE AND TO FURTHER THE BUSINESS OF ITS
PARENTS, WHO ARE ALREADY IN COMMERCE.  P. 168. 

(B)  THE ECONOMIC EFFECTS OF AN ACQUISITION ARE DETERMINED AT THE
TIME OF SUIT, UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S.
586, 607, AND PENN-OLIN WAS CLEARLY ENGAGED IN COMMERCE THEN.  P. 168. 

2.  TO CARRY OUT THE NATIONAL POLICY OF PRESERVING AND PROMOTING A
FREE COMPETITIVE ECONOMY, THE SAME OVERALL CONSIDERATIONS APPLY TO
JOINT VENTURES AS TO MERGERS, ALTHOUGH DIFFERENT CRITERIA MAY CONTROL;
AND ACTUAL RESTRAINT NEED NOT BE PROVED, ONLY REASONABLE LIKELIHOOD OF
A SUBSTANTIAL LESSENING OF COMPETITION.  PP. 169-72. 

3.  THE TEST OF WHETHER A JOINT VENTURE MIGHT SUBSTANTIALLY LESSEN
COMPETITION, WITHIN THE MEANING OF SEC 7, IS NOT ONLY WHETHER BOTH
PARENT COMPANIES WOULD PROBABLY HAVE ENTERED THE MARKET, OR WHETHER ONE
WOULD PROBABLY HAVE ENTERED ALONE, BUT ALSO WHETHER THE JOINT VENTURE
ELIMINATED THE POTENTIAL COMPETITION OF THE COMPANY THAT MIGHT HAVE
STAYED AT THE EDGE OF THE MARKET, THREATENING TO ENTER.  PP. 172-174. 

(A)  THE JOINT VENTURE MAY WELL HAVE ELIMINATED ANY PROSPECTIVE
COMPETITION BETWEEN PENNSALT AND OLIN, JUST AS A MERGER ELIMINATES
ACTUAL COMPETITION.  P. 173. 

(B)  THE PRESENCE OF A POTENTIAL COMPETITOR HAVING THE CAPABILITY OF
ENTERING AN OLIGOPOLISTIC MARKET MAY BE A SUBSTANTIAL INCENTIVE TO
COMPETITION.  P. 174. 

4.  A FINDING SHOULD HAVE BEEN MADE BY THE TRIAL COURT AS TO THE
REASONABLE PROBABILITY THAT EITHER PENNSALT OR OLIN WOULD HAVE BUILT A
PLANT WHILE THE OTHER REMAINED A SIGNIFICANT POTENTIAL COMPETITOR.  PP.
175-176. 

5.  IN DETERMINING THE PROBABILITY OF SUBSTANTIAL LESSENING OF
COMPETITION, THE TRIAL COURT MIGHT TAKE INTO ACCOUNT THE FOLLOWING
CRITERIA:  THE NUMBER AND POWER OF THE COMPETITORS IN THE MARKET; THE
BACKGROUND OF THEIR GROWTH; THE POWER OF THE JOINT VENTURERS; THE
RELATIONSHIP OF THEIR LINES OF COMMERCE; THE COMPETITION EXISTING
BETWEEN THEM AND THE POWER OF EACH IN DEALING WITH THE OTHER'S
COMPETITORS; THE SETTING IN WHICH THE JOINT VENTURE WAS FORMED; THE
REASONS AND NECESSITIES FOR ITS EXISTENCE; THE JOINT VENTURE'S LINE OF
COMMERCE AND THE RELATIONSHIP THEREOF TO ITS PARENTS; THE ADAPTABILITY
OF ITS LINE OF COMMERCE TO NONCOMPETITIVE PRACTICES; THE POTENTIAL
POWER OF THE JOINT VENTURE IN THE MARKET; AN APPRAISAL OF COMPETITION
IN THE MARKET IF ONE OF THE PARENTS ENTERED ALONE, INSTEAD OF THROUGH
THE JOINT VENTURE; IN THAT EVENT, THE EFFECT OF THE OTHER PARENT'S
POTENTIAL COMPETITION; AND SUCH OTHER FACTORS AS MIGHT INDICATE
POTENTIAL RISK TO COMPETITION IN THE MARKET.  PP. 176-177. 

UNITED STATES V. PENN-OLIN CHEMICAL CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PENNSALT CHEMICALS CORPORATION AND OLIN MATHIESON CHEMICAL
CORPORATION JOINTLY FORMED PENN-OLIN CHEMICAL CORPORATION TO PRODUCE
AND SELL SODIUM CHLORATE IN THE SOUTHEASTERN UNITED STATES.  THE
GOVERNMENT SEEKS TO DISSOLVE THIS JOINT VENTURE AS VIOLATIVE OF BOTH
SEC 7 OF THE CLAYTON ACT (FN1) AND SEC 1 OF THE SHERMAN ACT.  (FN2)
THIS DIRECT APPEAL, 32 STAT. 823, 15 U.S.C. SEC 29, FROM THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, RAISES TWO
QUESTIONS.  FIRST, WHETHER SEC 7 OF THE CLAYTON ACT IS APPLICABLE WHERE
TWO CORPORATIONS FORM A THIRD TO ENGAGE IN A NEW ENTERPRISE; AND,
SECOND, IF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, WHETHER THERE
IS A VIOLATION OF SEC 1 OR SEC 7 UNDER THE FACTS OF THIS CASE.  THE
TRIAL COURT FOUND THAT THE JOINT VENTURE, ON THIS RECORD, VIOLATED
NEITHER OF THESE SECTIONS AND FOUND IT UNNECESSARY TO REACH THE FIRST
QUESTION.  217 F. SUPP. 110.  IN VIEW OF THE IMPORTANCE OF EACH OF
THESE QUESTIONS IN THE ADMINISTRATION OF THE ANTITRUST LAWS, WE NOTED
PROBABLE JURISDICTION.  375 U.S. 938.  WE HAVE CONCLUDED THAT A JOINT
VENTURE AS ORGANIZED HERE WOULD BE SUBJECT TO THE REGULATION OF SEC 7
OF THE CLAYTON ACT AND, REACHING THE MERITS, WE HOLD THAT WHILE ON THE
PRESENT RECORD THERE IS NO VIOLATION OF SEC 1 OF THE SHERMAN ACT, THE
DISTRICT COURT ERRED IN DISMISSING THE COMPLAINT AS TO SEC 7 OF THE
CLAYTON ACT.  ACCORDINGLY, THE JUDGMENT IS VACATED AND REMANDED FOR
FURTHER CONSIDERATION. 

                  1.  LINE OF COMMERCE, RELEVANT MARKET, ETC. 

AT THE OUTSET IT IS WELL TO NOTE THAT SOME OF THE TROUBLESOME
QUESTIONS ORDINARILY FOUND IN ANTITRUST CASES HAVE BEEN ELIMINATED BY
THE PARTIES.  FIRST, THE LINE OF COMMERCE IS A CHEMICAL KNOWN AS SODIUM
CHLORATE.  IT IS PRODUCED COMMERCIALLY BY ELECTROLYSIS OF AN ACIDIFIED
SOLUTION OF SODIUM CHLORIDE.  ALL SODIUM CHLORATE OF LIKE PURITY IS
USABLE INTERCHANGEABLY AND IS USED PRIMARILY IN THE PULP AND PAPER
INDUSTRY TO BLEACH THE PULP, MAKING FOR A BRIGHTER AND HIGHER QUALITY
PAPER.  THIS IS DONE BY USING THE SODIUM CHLORATE AS A PRINCIPAL RAW
MATERIAL TO GENERATE CHLORINE DIOXIDE, A GASEOUS MATERIAL WHICH
BLEACHES CELLULOSE FIBERS TO A MAXIMUM WHITENESS WITH MINIMUM LOSS OF
STRENGTH.  THE PULP AND PAPER INDUSTRY CONSUMES ABOUT 64% OF TOTAL
PRODUCTION OF SODIUM CHLORATE.  THE CHEMICAL IS ALSO EMPLOYED IN THE
PRODUCTION OF HERBICIDES, AGRICULTURAL CHEMICALS AND IN CERTAIN
DERIVATIVES, SUCH AS AMMONIUM PERCHLORATE.  NEXT, THE RELEVANT MARKET
IS NOT DISPUTED.  IT IS THE SOUTHEASTERN PART OF THE UNITED STATES. 
NOR IS THE FACT THAT OLIN HAS NEVER ENGAGED IN THE COMMERCIAL
PRODUCTION OF SODIUM CHLORATE CONTESTED.  IT HAS PURCHASED AND DOES
PURCHASE AMOUNTS OF THE CHEMICAL FOR INTERNAL CONSUMPTION AND HAS ACTED
AS SALES AGENT FOR PENNSALT IN THE SOUTHEASTERN TERRITORY UNDER
CONTRACTS DATED IN DECEMBER 1957 AND FEBRUARY 1958.  OLIN ALSO OWNS A
PATENTED PROCESS FOR BLEACHING PULP WITH CHLORINE DIOXIDE.  THIS
PROCESS REQUIRES SODIUM CHLORATE AND HAS BEEN WIDELY USED BY PAPER
MANUFACTURERS UNDER ROYALTY-FREE LICENSES. 

IN ADDITION, THE RECORD SHOWS THAT WHILE OLIN AND PENNSALT ARE IN
COMPETITION IN THE PRODUCTION AND SALE OF NONCHLORATE CHEMICALS, ONLY
ONE WAS SELECTED AS A "GUINEA PIG" IN THE DISTRICT COURT TO DETERMINE
IF THE ALLEGED VIOLATIONS EXTENDED TO THOSE CHEMICALS.  THIS WAS
CALCIUM HYPOCHLORITE, USED IN THE PRODUCTION OF PULP AND PAPER.  THE
TRIAL COURT FOUND THAT THE JOINT VENTURE PLANT WHICH WAS BUILT AT
CALVERT CITY WAS CONSTRUCTED TO PRODUCE SODIUM CHLORATE ONLY.  IN THE
JURISDICTIONAL STATEMENT THE GOVERNMENT INDICATED THAT IT MIGHT ARGUE
THAT THE JOINT VENTURE ALSO HAD AN ILLEGAL IMPACT ON THE CALCIUM
HYPOCHLORITE LINE OF COMMERCE, BUT THIS WAS NOT RAISED IN THE BRIEF OR
AT ARGUMENT ON THE MERITS. 

              2.  THE COMPANIES INVOLVED. 

PENNSALT IS ENGAGED SOLELY IN THE PRODUCTION AND SALE OF CHEMICALS
AND CHEMICAL PRODUCTS THROUGHOUT THE UNITED STATES.  ITS ASSETS ARE
AROUND A HUNDRED MILLION DOLLARS AND ITS SALES ARE ABOUT THE SAME
AMOUNT.  ITS SODIUM CHLORATE PRODUCTION IS LOCATED IN PORTLAND OREGON,
WITH A CAPACITY OF SOME 15,000 TONS AS OF 1959.  IT OCCUPIED 57.8% OF
THE MARKET WEST OF THE ROCKY MOUNTAINS.  IT HAS MARKETED SODIUM
CHLORATE IN THE SOUTHEASTERN UNITED STATES TO SOME EXTENT SINCE 1957. 
ITS SHIPMENTS INTO THAT TERRITOTY IN 1960 WERE 4,186 TONS OF WHICH OLIN
SOLD 3,202 TONS ON ITS SALES AGENCY CONTRACT. 

OLIN IS A LARGE DIVERSIFIED CORPORATION, THE RESULT OF A MERGER OF
OLIN INDUSTRIES, INC., AND MATHIESON CHECMICAL CORPORATION IN 1954. 
ONE OF ITS SEVEN DIVISIONS OPERATES PLANTS IN 15 STATES AND PRODUCES A
WIDE RANGE OF CHEMICALS AND CHEMICAL PRODUCTS ACCOUNTING FOR ABOUT 30%
OF OLIN'S REVENUES.  OLIN'S SALES IN 1960 GROSSED SOME $690,000,000 AND
ITS TOTAL ASSETS WERE $860,000,000. 

PENN-OLIN WAS ORGANIZED IN 1960 AS A JOINT VENTURE OF OLIN AND
PENNSALT.  EACH OWNS 50% OF ITS STOCK AND THE OFFICERS AND DIRECTORS
ARE DIVIDED EQUALLY BETWEEN THE PARENTS.  ITS PLANT AT CALVERT CITY,
KENTUCKY, WAS BUILT BY EQUAL CONTRIBUTION OF THE TWO PARENTS AND COST
$6,500,000.  IT HAS A CAPACITY TO PRODUCE 26,500 TONS OF SODIUM
CHLORATE ANNUALLY AND BEGAN OPERATIONS IN 1961.  PENNSALT OPERATES THE
PLANT AND OLIN HANDLES THE SALES.  PENN-OLIN DEALS IN NO OTHER
CHEMICALS. 

                 3.  BACKGROUND AND STATISTICS OF THE INDUSTRY. 

PRIOR TO 1961 THE SODIUM CHLORATE INDUSTRY IN THE UNITED STATES WAS
MADE UP OF THREE PRODUCING COMPANIES.  THE LARGEST PRODUCER, HOOKER
CHEMICAL CORPORATION, ENTERED THE INDUSTRY IN 1956 WHEN IT ACQUIRED
OLDBURY ELECTRO CHEMICAL COMPANY, WHICH HAD BEEN PRODUCING SODIUM
CHLORATE FOR OVER HALF A CENTURY.  HOOKER NOW HAS TWO PLANTS, ONE IN
THE RELEVANT MARKETING AREA AT COLUMBUS, MISSISSIPPI, WHICH ORIGINALLY
HAD A CAPACITY OF 16,000 TONS BUT WHICH WAS DOUBLED IN 1962.  THE OTHER
PLANT IS AT NIAGARA FALLS, NEW YORK, WITH A CAPACITY OF 18,000 TONS. 
HOOKER HAS ASSETS OF ALMOST $200,000,000.  AMERICAN POTASH & CHEMICAL
CORPORATION ENTERED THE INDUSTRY IN 1955 BY THE ACQUISITION OF WESTERN
ELECTRO CHEMICAL COMPANY.  AMERICAN POTASH ALSO HAS TWO PLANTS, ONE
LOCATED AT HENDERSON, NEVADA, WITH A 27,000-TON CAPACITY AND THE OTHER
AT ABERDEEN, MISSISSIPPI (BUILT IN 1957), THE CAPACITY OF WHICH WAS
15,000 TONS.  ITS ASSETS ARE ALMOST $100,000,000.  THE TRIAL COURT
FOUND THAT THESE TWO CORPORATIONS "HAD A VIRTUAL MONOPOLY" IN THE
RELEVANT SOUTHEAST MARKET, HOLDING OVER 90% OF THE MARKET. 

A THIRD COMPANY IN THE INDUSTRY WAS PENNSALT WHICH HAD A 15,392-TON
PLANT AT PORTLAND, OREGON.  IT ENTERED SERIOUSLY INTO THE RELEVANT
MARKETING AREA THROUGH A SALES ARRANGEMENT WITH OLIN DATED DECEMBER
1957 AND FINALIZED IN 1958, WHICH WAS AIMED AT TESTING THE AVAILABILITY
OF THE SOUTHEASTERN MARKET.  OLIN AS AN EXCLUSIVE SELLER WAS TO
UNDERTAKE THE SALE OF 2,000 TONS OF SODIUM CHLORATE PER YEAR TO PULP
AND PAPER MILLS IN THE SOUTHEAST (EXCEPT FOR BUCKEYE CELLULOSE CO., AT
FOLEY, FLORIDA, WHICH PENNSALT RESERVED TO SERVE DIRECTLY).  IN 1960,
4,186 TONS OF SODIUM CHLORATE WERE MARKETED IN THE RELEVANT MARKET WITH
THE AID OF THIS AGREEMENT.  THIS ACCOUNTED FOR 8.9% OF THE SALES IN
THAT MARKET. 

DURING THE PREVIOUS DECADE NO NEW FIRMS HAD ENTERED THE SODIUM
CHLORATE INDUSTRY, AND LITTLE EFFORT HAD BEEN MADE BY EXISTING
COMPANIES TO EXPAND THEIR FACILITIES PRIOR TO 1957.  IN 1953 OLIN HAD
MADE AVAILABLE TO PENNSALT ITS MATHIESON PATENTED PROCESS FOR BLEACHING
PULP WITH CHLORINE DIOXIDE AND THE LATTER HAD INSTALLED IT 100% IN ALL
OF THE WESTERN PAPER MILLS.  THIS PROCESS USES SODIUM CHLORATE.  AT
ABOUT THE SAME TIME THE PROCESS WAS LIKEWISE MADE AVAILABLE, ROYALTY
FREE, TO THE ENTIRE PULP AND PAPER INDUSTRY.  BY 1960 MOST OF THE
CHLORINE DIOXIDE GENERATED BY PAPER MANUFACTURERS WAS BEING PRODUCED
UNDER THE OLIN CONTROLLED PROCESS.  THIS CREATED AN EXPANDING DEMAND
FOR SODIUM CHLORATE AND BY 1960 THE HEAVIEST CONCENTRATION OF PURCHASES
WAS LOCATED IN THE RELEVANT SOUTHEASTERN TERRITORY.  BY 1957 HOOKER
BEGAN INCREASING THE CAPACITY OF ITS COLUMBUS PLANT AND BY 1960 IT HAD
BEEN ALMOST DOUBLED.  AMERICAN POTASH SENSED THE NEED OF A PLANT IN
MISSISSIPPI TO COMPETE WITH HOOKER AND BEGAN ITS ABERDEEN PLANT IN
1957.  IT WAS COMPLETED TO A 15,000-TON CAPACITY IN 1959, AND THIS
CAPACITY WAS EXPANDED 50% BY 1961. 

THE SALES ARRANGEMENT BETWEEN PENNSALT AND OLIN, PREVIOUSLY
MENTIONED, WAS SUPERSEDED BY THE JOINT VENTURE AGREEMENT ON FEBRUARY
11, 1960, AND THE PENN-OLIN PLANT OPERATIONS AT CALVERT CITY, KENTUCKY,
BEGAN IN 1961.  IN THE SAME YEAR PITTSBURGH PLATE GLASS COMPANY
ANNOUNCED THAT IT WOULD BUILD A PLANT AT LAKE CHARLES, LOUISIANA, WITH
A CAPACITY OF 15,000 TONS.  PITTSBURGH PLATE GLASS HAD OPERATED A
SODIUM CHLORATE PLANT IN CANADA. 

AS A RESULT OF THESE EXPANSIONS AND NEW ENTRIES INTO THE SOUTHEASTERN
MARKET, THE PROJECTED PRODUCTION OF SODIUM CHLORATE THERE MORE THAN
DOUBLED.  BY 1962 HOOKER HAD 32,000 TONS; AMERICAN POTASH, 22,500 TONS;
PENN-OLIN, 26,500 TONS; AND PITTSBURGH GLASS, 15,000 TONS - A TOTAL OF
96,000 TONS AS CONTRASTED TO 41,450 IN 1959.  PENN-OLIN'S SHARE OF THE
EXPANDED RELEVANT MARKET WAS ABOUT 27.6%.  OUTSIDE THE RELEVANT
SOUTHEASTERN MARKET PACIFIC ENGINEERING AND PRODUCTION COMPANY
ANNOUNCED IN JULY 1961 THAT IT WOULD CONSTRUCT A 5,000-TON SODIUM
CHLORATE PLANT AT HENDERSON, NEVADA, IN A JOINT VENTURE WITH AMERICAN
CYANAMID COMPANY.  PACIFIC WOULD PUT UP THE "KNOW-HOW" AND AMERICAN
CYANAMID THE LOAN OF THE NECESSARY MONEY WITH 50% STOCK OPTIONS. 

             4.  THE SETTING FROM WHICH THE JOINT VENTURE EMERGED. 

AS EARLY AS 1951 PENNSALT HAD CONSIDERED BUILDING A PLANT AT CALVERT
CITY AND STARTING IN 1955 IT INITITATED SEVERAL COST AND MARKET STUDIES
FOR A SODIUM CHLORATE PLANT IN THE SOUTHEAST.  THREE DIFFERENT
PROPOSALS FROM WITHIN ITS OWN ORGANIZATION WERE REJECTED PRIOR TO 1957,
APPARENTLY BECAUSE THE RATE OF RETURN WAS SO UNATTRACTIVE THAT "THE
EXPENSE OF REFINING THESE FIGURES FURTHER WOULD BE UNWARRANTED."  WHEN
HOOKER ANNOUNCED IN DECEMBER 1956 THAT IT WAS GOING TO INCREASE THE
CAPACITY OF ITS COLUMBUS PLANT, THE INTEREST OF PENNSALT MANAGEMENT WAS
REACTIVATED.  IT APPOINTED A "TASK FORCE" TO EVALUATE THE COMPANY'S
FUTURE IN THE EASTERN MARKET; IT RETAINED MANAGEMENT CONSULTANTS TO
STUDY THE MARKET AND ITS CHIEF ENGINEER PREPARED COST ESTIMATES. 
HOWEVER, IN DECEMBER 1957 THE MANAGEMENT DECIDED THAT THE ESTIMATED
RATE OF RETURN WAS UNATTRACTIVE AND CONSIDERED IT "UNLIKELY" THAT
PENNSALT WOULD GO IT ALONE.  IT WAS SUGGESTED THAT OLIN WOULD BE A
"LOGICAL PARTNER" IN A JOINT VENTURE AND MIGHT IN THE INTERIM BE
INTERESTED IN DISTRIBUTING IN THE EAST 2,000 TONS OF THE PORTLAND
SODIUM CHLORATE PRODUCTION.  THE SALES AGREEMENT WITH OLIN, HERETOFORE
MENTIONED, WAS EVENTUALLY MADE.  IN THE FINAL DRAFT THE PARTIES AGREED
THAT "NEITHER  ...  SHOULD MOVE IN THE CHLORATE OR PERCHLORATE FIELD
WITHOUT KEEPING THE OTHER PARTY INFORMED  ...  " AND THAT ONE WOULD
"BRING TO THE ATTENTION OF THE OTHER ANY UNUSUAL ASPECTS OF THIS
BUSINESS WHICH MIGHT MAKE IT DESIRABLE TO PROCEED FURTHER WITH
PRODUCTION PLANS."  PENNSALT CLAIMS THAT IT FINALLY DECIDED, PRIOR TO
THIS AGREEMENT, THAT IT SHOULD NOT BUILD A PLANT ITSELF AND THAT THIS
DECISION WAS NEVER RECONSIDERED OR CHANGED.  BUT THE DISTRICT COURT
FOUND TO THE CONTRARY. 

DURING THIS SAME PERIOD - BEGINNING SLIGHTLY EARLIER - OLIN BEGAN
INVESTIGATING THE POSSIBILITY OF ENTERING THE SODIUM CHLORATE
INDUSTRY.  IT HAD NEVER PRODUCED SODIUM CHLORATE COMMERCIALLY, ALTHOUGH
ITS PREDECESSOR HAD DONE SO YEARS BEFORE.  HOWEVER, THE ELECTROLYTIC
PROCESS USED IN MAKING SODIUM CHLORATE IS INTIMATELY RELATED TO OTHER
OPERATIONS OF OLIN AND REQUIRED THE SAME GENERAL KNOWLEDGE.  OLIN ALSO
POSSESSED EXTENSIVE EXPERIENCE IN THE TECHNICAL ASPECTS OF BLEACHING
PULP AND PAPER AND WAS INTIMATE WITH THE PULP AND PAPER MILLS OF THE
SOUTHEAST.  IN APRIL 1958 OLIN'S CHEMICAL DIVISION WROTE AND CIRCULATED
TO THE MANAGEMENT A "WHITHER REPORT" WHICH STATED IN PART: 

"WE HAVE AN UNPARALLELED OPPORTUNITY TO MOVE SODIUM CHLORATE INTO THE
PAPER INDUSTRY AS THE RESULT OF OUR WORK ON THE INSTALLATION OF
CHLORINE DIOXIDE GENERATORS.  WE HAVE A CAPTIVE CONSUMPTION FOR SODIUM
CHLORATE." 

AND OLIN'S ENGINEERING SUPERVISOR CONCLUDED THAT ENTRY INTO SODIUM
CHLORATE PRODUCTION WAS "AN ATTRACTIVE VENTURE" SINCE IT "REPRESENTS A
LOGICAL EXPANSION OF THE PRODUCT LINE OF THE INDUSTRIAL CHEMICALS
DIVISION  ...  " WITH RESPECT TO "ONE OF THE MAJOR MARKETS, PULP AND
PAPER BLEACHING, WITH WHICH WE HAVE A FAVORABLE MARKETING POSITION,
PARTICULARLY IN THE SOUTHEAST." 

THE STAFF, HOWEVER, DID NOT AGREE WITH THE ENGINEERING SUPERVISOR OR
THE "WHITHER REPORT" AND CONCLUDED "THAT THEY DIDN'T FEEL THAT THIS
PARTICULAR PROJECT SHOWS ANY MERIT WORTHY OF SERIOUS CONSIDERATION BY
THE CORPORATION AT THAT TIME."  THEY WERE DUBIOUS OF THE COST ESTIMATES
AND FELT THE NEED TO TEMPER THEIR SCIENTISTS' ENTHUSIASM FOR NEW
PRODUCTS WITH THE UNCERTAINTIES OF PLANT CONSTRUCTION AND OPERATION. 
BUT, AS THE TRIAL COURT FOUND, THE TESTIMONY INDICATED THAT OLIN'S
DECISION TO ENTER THE JOINT VENTURE WAS MADE WITHOUT DETERMINING THAT
OLIN COULD NOT OR WOULD NOT BE AN INDEPENDENT COMPETITOR.  THAT
QUESTION, THE PRESIDENT OF PENN-OLIN TESTIFIED, "NEVER REACHED THE
POINT OF FINAL DECISION."    THIS LED THE DISTRICT COURT TO FIND THAT
"THE POSSIBILITY OF INDIVIDUAL ENTRY INTO THE SOUTHEASTERN MARKET HAD
NOT BEEN COMPLETELY REJECTED BY EITHER PENNSALT OR OLIN BEFORE THEY
DECIDED UPON THE JOINT VENTURE."  217 F. SUPP. 110, 128-129. 

   5.  SECTION 7 OF THE CLAYTON ACT APPLIES TO "JOINT VENTURES." 
APPELLEES ARGUE THAT SEC 7 APPLIES ONLY WHERE THE ACQUIRED COMPANY IS
"ENGAGED" IN COMMERCE AND THAT IT WOULD NOT APPLY TO A NEWLY FORMED
CORPORATION, SUCH AS PENN-OLIN.  THE TEST, THEY SAY, IS WHETHER THE
ENTERPRISE TO BE ACQUIRED IS ENGAGED IN COMMERCE - NOT WHETHER A
CORPORATION FORMED AS THE INSTRUMENTALITY FOR THE ACQUISITION IS ITSELF
ENGAGED IN COMMERCE AT THE MOMENT OF ITS FORMATION.  WE BELIEVE THAT
THIS LOGIC FAILS IN THE LIGHT OF THE WORDING OF THE SECTION AND ITS
LEGISLATIVE BACKGROUND.  THE TEST OF THE SECTION IS THE EFFECT OF THE
ACQUISITION.  CERTAINLY THE FORMATION OF A JOINT VENTURE AND PURCHASE
BY THE ORGANIZERS OF ITS STOCK WOULD SUBSTANTIALLY LESSEN COMPETITION -
INDEED FORECLOSE IT - AS BETWEEN THEM, BOTH BEING ENGAGED IN COMMERCE. 
THIS WOULD BE TRUE WHETHER THEY WERE IN ACTUAL OR POTENTIAL COMPETITION
WITH EACH OTHER AND EVEN THOUGH THE NEW CORPORATION WAS FORMED TO
CREATE A WHOLLY NEW ENTERPRISE.  REALISTICALLY, THE PARENTS WOULD NOT
COMPETE WITH THE PROGENY.  MOREOVER, IN THIS CASE THE PROGENY WAS
ORGANIZED TO FURTHER THE BUSINESS OF ITS PARENTS, ALREADY IN COMMERCE,
AND THE FACT THAT IT WAS ORGANIZED SPECIFICALLY TO ENGAGE IN COMMERCE
SHOULD BRING IT WITHIN THE COVERAGE OF SEC 7.  IN ADDITION, LONG PRIOR
TO TRIAL PENN-OLIN WAS ACTUALLY ENGAGED IN COMMERCE.  TO HOLD THAT IT
WAS NOT "WOULD BE ILLOGICAL AND DISRESPECTFUL OF THE PLAIN
CONGRESSIONAL PURPOSE IN AMENDING SEC 7  ...  FOR IT WOULD CREATE A
LARGE LOOPHOLE IN A STATUTE DESIGNED TO CLOSE A LOOPHOLE."  UNITED
STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 343 (1963).  IN ANY
EVENT, PENN-OLIN WAS ENGAGED IN COMMERCE AT THE TIME OF SUIT AND THE
ECONOMIC EFFECTS OF AN ACQUISITION ARE TO BE MEASURED AT THAT POINT
RATHER THAN AT THE TIME OF ACQUISITION.  UNITED STATES V. E.I. DU PONT
DE NEMOURS & CO., 353 U.S. 586, 607 (1957).  THE TECHNICALITY COULD,
THEREFORE, BE AVERTED BY MERELY REFILING AN AMENDED COMPLAINT AT THE
TIME OF TRIAL.  THIS WOULD BE A USELESS REQUIREMENT. 

6.  THE APPLICATION OF THE MERGER DOCTRINE. 

THIS IS THE FIRST CASE REACHING THIS COURT AND ON WHICH WE HAVE
WRITTEN THAT DIRECTLY INVOLVES THE VALIDITY UNDER SEC 7 OF THE JOINT
PARTICIPATION OF TWO CORPORATIONS IN THE CREATION OF A THIRD AS A NEW
DOMESTIC PRODUCING ORGANIZATION.  (FN3)  WE ARE, THEREFORE, PLOWING NEW
GROUND.  IT IS TRUE, HOWEVER, THAT SOME ASPECTS OF THE PROBLEM MIGHT BE
FOUND IN UNITED STATES V. TERMINAL R. ASSN., 224 U.S. 383 (1912), AND
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1 (1945), WHERE JOINT
VENTURES WITH GREAT MARKET POWER WERE SUBJECTED TO CONTROL, EVEN PRIOR
TO THE AMENDMENT TO SEC 7. 

IT IS SAID THAT JOINT VENTURES WERE UTILIZED IN ANCIENT TIMES,
ACCORDING TO TAUBMAN, WHO TRACES THEM TO BABYLONIAN "COMMENDA" AND
ROMAN "SOCIETAS."  TAUBMAN, THE JOINT VENTURE AND TAX CLASSIFICATION,
27-81 (1957).  THEIR ECONOMIC SIGNIFICANCE HAS GROWN TREMENDOUSLY IN
THE LAST SCORE OF YEARS, HAVING BEEN SPURRED ON BY THE NEED FOR SPEED
AND SIZE IN FASHIONING A WAR MACHINE DURING THE EARLY FORTIES.  POSTWAR
USE OF JOINT SUBSIDIARIES AND JOINT PROJECTS LED TO THE SPAWNING OF
THOUSANDS OF SUCH VENTURES IN AN EFFORT TO PERFORM THE COMMERICAL TASKS
CONFRONTING AN EXPANDING ECONOMY. 

THE JOINT VENTURE, LIKE THE "MERGER" AND THE "CONGLOMERATION," OFTEN
CREATES ANTICOMPETITIVE DANGERS.  IT IS THE CHOSEN COMPETITIVE
INSTRUMENT OF TWO OR MORE CORPORATIONS PREVIOUSLY ACTING INDEPENDENTLY
AND USUALLY COMPETITIVELY WITH ONE ANOTHER.  THE RESULT IS "A
TRIUMVIRATE OF ASSOCIATED CORPORATIONS."  (FN4)  IF THE PARENT
COMPANIES ARE IN COMPETITION, OR MIGHT COMPETE ABSENT THE JOINT
VENTURE, IT MAY BE ASSUMED THAT NEITHER WILL COMPETE WITH THE PROGENY
IN ITS LINE OF COMMERCE.  INEVITABLY, THE OPERATIONS OF THE JOINT
VENTURE WILL BE FROZEN TO THOSE LINES OF COMMERCE WHICH WILL NOT BRING
IT INTO COMPETITION WITH THE PARENTS, AND THE LATTER, BY THE SAME TOKEN
WILL BE FORECLOSED FROM THE JOINT VENTURE'S MARKET. 

THIS IS NOT TO SAY THAT THE JOINT VENTURE IS CONTROLLED BY THE SAME
CRITERIA AS THE MERGER OR CONGLOMERATION.  THE MERGER ELIMINATES ONE OF
THE PARTICIPATING CORPORATIONS FROM THE MARKET WHILE A JOINT VENTURE
CREATES A NEW COMPETITIVE FORCE THEREIN.  SEE UNITED STATES V.
PHILADELPHIA NATIONAL BANK, SUPRA; BROWN SHOE CO. V. UNITED STATES, 370
U.S. 294 (1962); UNITED STATES V. ALUMINUM CO. OF AMERICA, 377 U.S. 271
(1964).  THE RULE OF UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S.
651 (1964), WHERE A CORPORATION SOUGHT TO PROTECT ITS MARKET BY
ACQUIRING A POTENTIAL COMPETITOR, WOULD, OF COURSE, APPLY TO A JOINT
VENTURE WHERE THE SAME INTENT WAS PRESENT IN THE ORGANIZATION OF THE
NEW CORPORATION. 

OVERALL, THE SAME CONSIDERATIONS APPLY TO JOINT VENTURES AS TO
MERGERS, FOR IN EACH INSTANCE WE ARE BUT EXPOUNDING A NATIONAL POLICY
ENUNCIATED BY THE CONGRESS TO PRESERVE AND PROMOTE A FREE COMPETITIVE
ECONOMY.  IN FURTHERANCE OF THAT POLICY, NOW ENTERING UPON ITS 75TH
YEAR, THIS COURT HAS FORMULATED APPROPRIATE CRITERIA, FIRST UNDER THE
SHERMAN ACT AND NOW, ALSO, UNDER THE CLAYTON ACT AND OTHER ANTITRUST
LEGISLATION.  THE CELLER-KEFAUVER AMENDMENT TO SEC 7, WITH WHICH WE NOW
DEAL, WAS THE ANSWER OF THE CONGRESS TO A LOOPHOLE FOUND TO EXIST IN
THE ORIGINAL ENACTMENT.  SEE BROWN SHOE CO. V. UNITED STATES, SUPRA,
AND UNITED STATES V. PHILADELPHIA NATIONAL BANK, SUPRA.  HOWEVER, IN AN
EARLIER CASE, THIS COURT, WHILE CONSIDERING THE EFFECT OF A STOCK
ACQUISITION UNDER THE ORIGINAL SEC 7, DECLARED IN UNITED STATES V. E.I.
DU PONT DE NEMOURS & CO., SUPRA, AT 592:  "WE HOLD THAT ANY ACQUISITION
BY ONE CORPORATION OF ALL OR ANY PART OF THE STOCK OF ANOTHER
CORPORATION, COMPETITOR OR NOT, IS WITHIN THE REACH OF THE SECTION
WHENEVER THE REASONABLE LIKELIHOOD APPEARS THAT THE ACQUISITION WILL
RESULT IN A RESTRAINT OF COMMERCE  ...  ."  THE GRAND DESIGN OF THE
ORIGINAL SEC 7, AS TO STOCK ACQUISITIONS, AS WELL AS THE CELLER
KEFAUVER AMENDMENT, AS TO THE ACQUISITION OF ASSETS, WAS TO ARREST
INCIPIENT THREATS TO COMPETITION WHICH THE SHERMAN ACT DID NOT
ORDINARILY REACH.  IT FOLLOWS THAT ACTUAL RESTRAINTS NEED NOT BE
PROVED.  THE REQUIREMENTS OF THE AMENDMENT ARE SATISFIED WHEN A
"TENDENCY" TOWARD MONOPOLY OR THE "REASONABLE LIKELIHOOD" OF A
SUBSTANTIAL LESSENING OF COMPETITION IN THE RELEVANT MARKET IS SHOWN. 
CONGRESS MADE IT PLAIN THAT THE VALIDITY OF SUCH ARRANGEMENTS WAS TO BE
GAUGED ON A BROADER SCALE BY USING THE WORDS "MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION" WHICH "INDICATE THAT ITS CONCERN WAS WITH
PROBABILITIES, NOT CERTAINTIES."  BROWN SHOE CO. V. UNITED STATES,
SUPRA, AT 323.  AND, AS WE SAID WITH REFERENCE TO ANOTHER MERGER, IN
UNITED STATES V. PHILADELPHIA NATIONAL BANK, SUPRA, AT 362: 

"CLEARLY, THIS IS NOT THE KIND OF QUESTION WHICH IS SUSCEPTIBLE OF A
READY AND PRECISE ANSWER IN MOST CASES.  IT REQUIRES NOT MERELY AN
APPRAISAL OF THE IMMEDIATE IMPACT OF THE MERGER UPON COMPETITION, BUT A
PREDICTION OF ITS IMPACT UPON COMPETITIVE CONDITIONS IN THE FUTURE;
THIS IS WHAT IS MEANT WHEN IT IS SAID THAT THE AMENDED SEC 7 WAS
INTENDED TO ARREST ANTICOMPETITIVE TENDENCIES IN THEIR 'INCIPIENCY.' 
SEE BROWN SHOE CO., SUPRA, AT 317, 322.  SUCH A PREDICTION IS SOUND
ONLY IF IT IS BASED UPON A FIRM UNDERSTANDING OF THE STRUCTURE OF THE
RELEVANT MARKET; YET THE RELEVANT ECONOMIC DATA ARE BOTH COMPLEX AND
ELUSIVE." 

AND IN THE MOST RECENT MERGER CASE BEFORE THE COURT, UNITED STATES V.
ALUMINUM CO. OF AMERICA, SUPRA, THE APPELLEE HAD ACQUIRED A SMALL
COMPETITOR, ROME CABLE CORPORATION.  THE COURT NOTED THAT THE
ACQUISITION GAVE APPELLEE ONLY 1.3% ADDITIONAL CONTROL OF THE ALUMINUM
CONDUCTOR MARKET.  "BUT IN THIS SETTING," THE COURT SAID: 

"THAT SEEMS TO US REASONABLY LIKELY TO PRODUCE A SUBSTANTIAL
LESSENING OF COMPETITION WITHIN THE MEANING OF SEC 7  ...  .  IT WOULD
SEEM THAT THE SITUATION IN THE ALUMINUM INDUSTRY MAY BE OLIGOPOLISTIC. 
AS THAT CONDITION DEVELOPS, THE GREATER IS THE LIKELIHOOD THAT PARALLEL
POLICIES OF MUTUAL ADVANTAGE, NOT COMPETITION, WILL EMERGE.  THAT
TENDENCY MAY WELL BE THWARTED BY THE PRESENCE OF SMALL BUT SIGNIFICANT
COMPETITORS."  AT 280. 

 7.  THE CRITERIA GOVERNING SEC 7 CASES. 

WE APPLY THE LIGHT OF THESE CONSIDERATIONS IN THE MERGER CASES TO THE
PROBLEM CONFRONTING US HERE.   THE DISTRICT COURT FOUND THAT "PENNSALT
AND OLIN EACH POSSESSED THE RESOURCES AND GENERAL CAPABILITY NEEDED TO
BUILD ITS OWN PLANT IN THE SOUTHEAST AND TO COMPETE WITH HOOKER AND
AMERICAN POTASH IN THAT MARKET.  EACH COULD HAVE DONE SO IF IT HAD
WISHED."  217 F. SUPP. 110, 129.  (FN5) IN ADDITION, THE DISTRICT COURT
FOUND THAT, CONTRARY TO THE POSITION OF THE MANAGEMENT OF OLIN AND
PENNSALT, "THE FORECASTS OF EACH COMPANY INDICATED THAT A PLANT COULD
BE OPERATED WITH PROFIT."  IBID. 

THE DISTRICT COURT HELD, HOWEVER, THAT THESE CONSIDERATIONS HAD NO
CONTROLLING SIGNIFICANCE, EXCEPT "AS A FACTOR IN DETERMINING WHETHER AS
A MATTER OF PROBABILITY BOTH COMPANIES WOULD HAVE ENTERED THE MARKET AS
INDIVIDUAL COMPETITORS IF PENN-OLIN HAD NOT BEEN FORMED.  ONLY IN THIS
EVENT WOULD POTENTIAL COMPETITION BETWEEN THE TWO COMPANIES HAVE BEEN
FORECLOSED BY THE JOINT VENTURE."  ID., AT 130.  IN THIS REGARD THE
COURT FOUND IT "IMPOSSIBLE TO CONCLUDE THAT AS A MATTER OF REASONABLE
PROBABILITY BOTH PENNSALT AND OLIN WOULD HAVE BUILT PLANTS IN THE
SOUTHEAST IF PENN-OLIN HAD NOT BEEN CREATED."  IBID.  THE COURT MADE NO
DECISION CONCERNING THE PROBABILITY THAT ONE WOULD HAVE BUILT "WHILE
THE OTHER CONTINUED TO PONDER."  IT FOUND THAT THIS "HYPOTHESIZED
SITUATION AFFORDS NO BASIS FOR CONCLUDING THAT PENN-OLIN HAD THE EFFECT
OF SUBSTANTIALLY LESSENING COMPETITION."  IBID.  THAT WOULD DEPEND, THE
COURT SAID, "UPON THE COMPETITIVE IMPACT WHICH PENN-OLIN WILL HAVE AS
AGAINST THAT WHICH MIGHT HAVE RESULTED IF PENNSALT OR OLIN HAD BEEN AN
INDIVIDUAL MARKET ENTRANT."  IBID.  THE COURT FOUND THAT THIS IMPACT
COULD NOT BE DETERMINED FROM THE RECORD IN THIS CASE.  "SOLELY AS A
MATTER OF THEORY," IT SAID, "  ...  NO REASON EXISTS TO SUPPORT THAT
PENN-OLIN WILL BE A LESS EFFECTIVE COMPETITOR THAN PENNSALT OR OLIN
WOULD HAVE BEEN.  THE CONTRARY CONCLUSION IS THE MORE REASONABLE." 
ID., AT 131. 

WE BELIEVE THAT THE COURT ERRED IN THIS REGARD.  CERTAINLY THE SOLE
TEST WOULD NOT BE THE PROBABILITY THAT BOTH COMPANIES WOULD HAVE
ENTERED THE MARKET.  NOR WOULD THE CONSIDERATION BE LIMITED TO THE
PROBABILITY THAT ONE ENTERED ALONE.  THERE STILL REMAINED FOR
CONSIDERATION THE FACT THAT PENN-OLIN ELIMINATED THE POTENTIAL
COMPETITION OF THE CORPORATION THAT MIGHT HAVE REMAINED AT THE EDGE OF
THE MARKET, CONTINUALLY THREATENING TO ENTER.  JUST AS A MERGER
ELIMINATES ACTUAL COMPETITION, THIS JOINT VENTURE MAY WELL FORECLOSE
ANY PROSPECT OF COMPETITION BETWEEN OLIN AND PENNSALT IN THE RELEVANT
SODIUM CHLORATE MARKET.  THE DIFFERENCE, OF COURSE, IS THAT THE
MERGER'S FORECLOSURE IS PRESENT WHILE THE JOINT VENTURE'S IS
PROSPECTIVE.  NEVERTHELESS, "POTENTIAL COMPETITION  ...  AS A
SUBSTITUTE FOR  ...  ACTUAL COMPETITION MAY RESTRAIN PRODUCERS FROM
OVERCHARGING THOSE TO WHOM THEY SELL OR UNDERPAYING THOSE FROM WHOM
THEY BUY  ...  .  POTENTIAL COMPETITION, INSOFAR AS THE THREAT SURVIVES
AS IT WOULD HAVE HERE IN THE ABSENCE OF PENN-OLIN, MAY COMPENSATE IN
PART FOR THE IMPERFECTION CHARACTERISTIC OF ACTUAL COMPETITION IN THE
GREAT MAJORITY OF COMPETITIVE MARKETS."  WILCOX, COMPETITION AND
MONOPOLY IN AMERICAN INDUSTRY, TNEC MONOGRAPH NO. 21 (1940) 7-8. 
POTENTIAL COMPETITION CANNOT BE PUT TO A SUBJECTIVE TEST.  IT IS NOT
"SUSCEPTIBLE OF A READY AND PRECISE ANSWER."  AS WE FOUND IN UNITED
STATES V. EL PASO NATURAL GAS CO., SUPRA, AT 660, THE "EFFECT ON
COMPETITION  ...  IS DETERMINED BY THE NATURE OR EXTENT OF THAT MARKET
AND BY THE NEARNESS OF THE ABSORBED COMPANY TO IT, THAT COMPANY'S
EAGERNESS TO ENTER THAT MARKET, ITS RESOURCEFULNESS, AND SO ON."  THE
POSITION OF A COMPANY "AS A COMPETITIVE FACTOR  ...  WAS NOT DISPROVED
BY THE FACT THAT IT HAD NEVER SOLD  ...  THERE  ...  .  IT IS
IRRELEVANT IN A MARKET  ... WHERE INCREMENTAL NEEDS ARE BOOMING."  THE
EXISTENCE OF AN AGRESSIVE, WELL EQUIPPED AND WELL FINANCED CORPORATION
ENGAGED IN THE SAME OR RELATED LINES OF COMMERCE WAITING ANXIOUSLY TO
ENTER AN OLIGOPOLISTIC MARKET WOULD BE A SUBSTANTIAL INCENTIVE TO
COMPETITION WHICH CANNOT BE UNDERESTIMATED.   WITNESS THE EXPANSION
UNDERTAKEN BY HOOKER AND AMERICAN POTASH AS SOON AS THEY HEARD OF THE
INTEREST OF OLIN MATHIESON AND OF PENNSALT IN SOUTHEAST TERRITORY. 
THIS SAME SITUATION MIGHT WELL HAVE COME ABOUT HAD EITHER OLIN OR
PENNSALT ENTERED THE RELEVANT MARKET ALONE AND THE OTHER REMAINED ALOOF
WATCHING DEVELOPMENTS. 

                           8.  THE PROBLEM OF PROOF. 

HERE THE EVIDENCE SHOWS BEYOND QUESTION THAT THE INDUSTRY WAS RAPIDLY
EXPANDING; THE REVELANT SOUTHEAST MARKET WAS REQUIRING ABOUT ONE-HALF
OF THE NATIONAL PRODUCTION OF SODIUM CHLORATE; FEW CORPORATIONS HAD THE
INCLINATION, RESOURCES AND KNOW-HOW TO ENTER THIS MARKET; BOTH PARENT
CORPORATIONS OF PENN-OLIN HAD GREAT RESOURCES; EACH HAD LONG BEEN
IDENTIFIED WITH THE INDUSTRY, ONE OWNING VALUABLE PATENT RIGHTS WHILE
THE OTHER HAD ENGAGED IN SODIUM CHLORATE PRODUCTION FOR YEARS; EACH HAD
OTHER CHEMICALS, THE PRODUCTION OF WHICH REQUIRED THE USE OF SODIUM
CHLORATE; RIGHT UP TO THE CREATION OF PENN-OLIN, EACH HAD EVIDENCED A
LONG-SUSTAINED AND STRONG INTEREST IN ENTERING THE RELEVANT MARKET
AREA; EACH ENJOYED GOOD REPUTATION AND BUSINESS CONNECTIONS WITH THE
MAJOR CONSUMERS OF SODIUM CHLORATE IN THE RELEVANT MARKET, I.E., THE
PULP AND PAPER MILLS; AND, FINALLY, EACH HAD THE KNOW-HOW AND THE
CAPACITY TO ENTER THAT MARKET AND COULD HAVE DONE SO INDIVIDUALLY AT A
REASONABLE PROFIT.  MOREOVER, EACH COMPANY HAD COMPELLING REASONS FOR
ENTERING THE SOUTHEAST MARKET.   PENNSALT NEEDED TO EXPAND ITS SALES TO
THE SOUTHEAST, WHICH IT COULD NOT DO ECONOMICALLY WITHOUT A PLANT IN
THAT AREA.  OLIN WAS MOTIVATED BY "THE FACT THAT IT WAS ALREADY BUYING
AND USING A FAIR QUANTITY OF SODIUM CHLORATE FOR THE PRODUCTION OF
SODIUM CHLORITE AND THAT IT WAS PROMOTING THE MATHIESON PROCESS OF THE
GENERATION OF CHLORINE DIOXIDE WHICH USES SODIUM CHLORATE."  UNLESS WE
ARE GOING TO REQUIRE SUBJECTIVE EVIDENCE, THIS ARRAY OF PROBABILITY
CERTAINLY REACHES THE PRIMA FACIE STAGE.  AS WE HAVE INDICATED, TO
REQUIRE MORE WOULD BE TO READ THE STATUTORY REQUIREMENT OF REASONABLE
PROBABILITY INTO A REQUIREMENT OF CERTAINTY.  THIS WE WILL NOT DO. 

HOWEVER, DESPITE THESE STRONG CIRCUMSTANCES, WE ARE NOT DISPOSED TO
DISTURB THE COURT'S FINDING THAT THERE WAS NOT A REASONABLE PROBABILITY
THAT BOTH PENNSALT AND OLIN WOULD HAVE BUILT A PLANT IN THE RELEVANT
MARKET AREA.  BUT WE HAVE CONCLUDED THAT A FINDING SHOULD HAVE BEEN
MADE AS TO THE REASONABLE PROBABILITY THAT EITHER ONE OF THE
CORPORATIONS WOULD HAVE ENTERED THE MARKET BY BUILDING A PLANT, WHILE
THE OTHER WOULD HAVE REMAINED A SIGNIFICANT POTENTIAL COMPETITOR.  THE
TRIAL COURT SAID THAT THIS QUESTION "NEED NOT BE DECIDED."  IT IS NOT
CLEAR WHETHER THIS CONCLUSION WAS BASED ON THE ERRONEOUS ASSUMPTION
THAT THE GOVERNMENT COULD NOT SHOW A LESSENING OF COMPETITION EVEN IF
SUCH A SITUATION EXISTED, OR UPON THE THEORY (WHICH THE COURT FOUND
ERRONEOUS IN ITS FINAL OPINION) THAT THE GOVERNMENT NEED NOT SHOW THE
IMPACT OF SUCH AN EVENT ON COMPETITION IN THE RELEVANT MARKET AS
COMPARED WITH THE ENTRY OF PENN-OLIN.  THE COURT MAY ALSO HAVE
CONCLUDED THAT THERE WAS NO EVIDENCE IN THE RECORD ON WHICH TO BASE
SUCH FINDING.  IN ANY EVENT, WE PREFER THAT THE TRIAL COURT PASS UPON
THIS QUESTION AND WE VENTURE NO OPINION THEREON.  SINCE THE TRIAL COURT
MIGHT HAVE BEEN CONCERNED OVER WHETHER THERE WAS EVIDENCE ON THIS
POINT, (FN6) WE REITERATE THAT IT IS IMPOSSIBLE TO DEMONSTRATE THE
PRECISE COMPETITIVE EFFECTS OF THE ELIMINATION OF EITHER PENNSALT OR
OLIN AS A POTENTIAL COMPETITOR.  AS THE REPORT OF THE ATTORNEY
GENERAL'S NATIONAL COMMITTEE TO STUDY THE ANTITRUST LAWS (1955) PUT
IT: 

"THE BASIC CHARACTERISTIC OF EFFECTIVE COMPETITION IN THE ECONOMIC
SENSE IS THAT NO ONE SELLER, AND NO GROUP OF SELLERS ACTING IN CONCERT,
HAS THE POWER TO CHOOSE ITS LEVEL OF PROFITS BY GIVING LESS AND
CHARGING MORE.  WHERE THERE IS WORKABLE COMPETITION, RIVAL SELLERS,
WHETHER EXISTING COMPETITORS OR NEW OR POTENTIAL ENTRANTS INTO THE
FIELD, WOULD KEEP THIS POWER IN CHECK BY OFFERING OR THREATENING TO
OFFER EFFECTIVE INDUCEMENTS  ...  ."  AT 320. 

THERE BEING NO PROOF OF SPECIFIC INTENT TO USE PENN-OLIN AS A VEHICLE
TO ELIMINATE COMPETITION, NOR EVIDENCE OF COLLATERAL RESTRICTIVE
AGREEMENTS BETWEEN THE JOINT VENTURERS, WE PUT THOSE SITUATIONS TO ONE
SIDE.  WE NOTE GENERALLY THE FOLLOWING CRITERIA WHICH THE TRIAL COURT
MIGHT TAKE INTO ACCOUNT IN ASSESSING THE PROBABILITY OF A SUBSTANTIAL
LESSENING OF COMPETITION:  THE NUMBER AND POWER OF THE COMPETITORS IN
THE RELEVANT MARKET; THE BACKGROUND OF THEIR GROWTH; THE POWER OF THE
JOINT VENTURERS; THE RELATIONSHIP OF THEIR LINES OF COMMERCE; THE
COMPETITION EXISTING BETWEEN THEM AND THE POWER OF EACH IN DEALING WITH
THE COMPETITORS OF THE OTHER; THE SETTING IN WHICH THE JOINT VENTURE
WAS CREATED; THE REASONS AND NECESSITIES FOR ITS EXISTENCE; THE JOINT
VENTURE'S LINE OF COMMERCE AND THE RELATIONSHIP THEREOF TO THAT OF ITS
PARENTS; THE ADAPTABILITY OF ITS LINE OF COMMERCE TO NONCOMPETITIVE
PRACTICES; THE POTENTIAL POWER OF THE JOINT VENTURE IN THE RELEVANT
MARKET; AN APPRAISAL OF WHAT THE COMPETITION IN THE RELEVANT MARKET
WOULD HAVE BEEN IF ONE OF THE JOINT VENTURERS HAD ENTERED IT ALONE
INSTEAD OF THROUGH PENN-OLIN; THE EFFECT, IN THE EVENT OF THIS
OCCURENCE, OF THE OTHER JOINT VENTURER'S POTENTIAL COMPETITION; AND
SUCH OTHER FACTORS AS MIGHT INDICATE POTENTIAL RISK TO COMPETITION IN
THE RELEVANT MARKET.  IN WEIGHING THESE FACTORS THE COURT SHOULD
REMEMBER THAT THE MANDATE OF THE CONGRESS IS IN TERMS OF THE
PROBABILITY OF A LESSENING OF SUBSTANTIAL COMPETITION, NOT IN TERMS OF
TANGIBLE PRESENT RESTRAINT. 

THE JUDGMENT IS THEREFORE VACATED AND THE CASE IS REMANDED FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  VACATED AND
REMANDED. 

FN1  SECTION 7 OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15
U.S.C. SEC 18, PROVIDES IN PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

FN2  SECTION 1 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15
U.S.C. SEC 1, PROVIDES IN PART: 

"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  ... ." 

FN3  FOR DISCUSSION OF THE PROBLEM, SEE KAYSEN & TURNER, ANTITRUST
POLICY, 136-141 (1959). 

FN4  SEE NOTE, APPLICABILITY OF SEC 7 TO A JOINT VENTURE, 11
U.C.L.A.L. REV. 393, 396. 

FN5  THE COURT EXPLAINED FURTHER:  "AT THE TIME WHEN THE JOINT
VENTURE WAS AGREED UPON PENNSALT AND OLIN EACH HAD AN EXTENSIVE
BACKGROUND IN SODIUM CHLORATE.  PENNSALT HAD YEARS OF EXPERIENCE IN
MANUFACTURING AND SELLING IT.  ALTHOUGH OLIN HAD NEVER BEEN A
COMMERCIAL MANUFACTURER, IT POSSESSED A SUBSTANTIALLY DEVELOPED
MANUFACTURING TECHNIQUE OF ITS OWN, AND ALSO HAD AVAILABLE TO IT A
PROCESS DEVELOPED BY VICKERS-KREBS WITH WHOM IT HAD BEEN NEGOTIATING TO
CONSTRUCT A PLANT.  OLIN HAD CONTACTS AMONG THE SOUTHEASTERN PULP AND
PAPER MILLS WHICH PENNSALT LACKED, BUT PENNSALT'S OWN ESTIMATES
INDICATE THAT IN A REASONABLE TIME IT WOULD DEVELOP ADEQUATE BUSINESS
TO SUPPORT A PLANT IF IT DECIDED TO BUILD.  A SUITABLE LOCATION FOR A
PLANT WAS AVAILABLE TO EACH COMPANY - CALVERT CITY, KENTUCKY FOR
PENNSALT, AND THE TVA AREA AROUND CHATTANOOGA, TENNESSEE FOR OLIN.  THE
FINANCING REQUIRED WOULD NOT HAVE BEEN A PROBLEM FOR EITHER COMPANY." 
IBID. 

FN6  IN THIS REGARD, THE COURT SHOULD, OF COURSE, OPEN THE RECORD FOR
FURTHER TESTIMONY IF THE PARTIES SO DESIRE. 

MR. JUSTICE WHITE DISSENTS. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AGREES, DISSENTING. 

AGREEMENTS AMONG COMPETITORS (FN1) TO DIVIDE MARKETS ARE PER SE
VIOLATIONS OF THE SHERMAN ACT.  (FN2)  THE MOST DETAILED, GRANDIOSE
SCHEME OF THAT KIND IS DISCLOSED IN ADDYSTON PIPE & STEEL CO. V. UNITED
STATES, 175 U.S. 211, WHERE INDUSTRIALISTS, ACTING LIKE COMMISSARS IN
MODERN COMMUNIST COUNTRIES, DETERMINED WHAT TONNAGE SHOULD BE PRODUCED
BY EACH COMPANY AND WHAT TERRITORY WAS "FREE" AND WHAT WAS "BONUS." 
THE COURT SAID: "TOTAL SUPPRESSION OF THE TRADE IN THE COMMODITY IS NOT
NECESSARY IN ORDER TO RENDER THE COMBINATION ONE IN RESTRAINT OF
TRADE.  IT IS THE EFFECT OF THE COMBINATION IN LIMITING AND RESTRICTING
THE RIGHT OF EACH OF THE MEMBERS TO TRANSACT BUSINESS IN THE ORDINARY
WAY, AS WELL AS ITS EFFECT UPON THE VOLUME OR EXTENT OF THE DEALING IN
THE COMMODITY, THAT IS REGARDED."  ID., AT 244-245. 

IN UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319,  (FN3) A SHERMAN
ACT VIOLATION RESULTED FROM A DIVISION OF WORLD MARKETS FOR TITANIUM
PIGMENTS, THE KEY BEING ALLOCATION OF TERRITORIES THROUGH PATENT
LICENSE AGREEMENTS.  A SIMILAR ARRANGEMENT WAS STRUCK DOWN IN TIMKEN
CO. V. UNITED STATES, 341 U.S. 593, WHERE WORLD TRADE TERRITORIES WERE
ALLOCATED AMONG AN AMERICAN, A BRITISH, AND A FRENCH COMPANY THROUGH
INTERCORPORATE ARRANGEMENTS CALLED A "JOINT VENTURE."  NATIONWIDE
TRAILER RENTAL SYSTEM, INC., V. UNITED STATES, 355 U.S. 10 (AFFIRMING
156 F. SUPP. 800), HELD VIOLATIVE OF THE ANTITRUST LAWS AN AGREEMENT
ESTABLISHING EXCLUSIVE TERRITORIES FOR EACH MEMBER OF AN ORGANIZATION
SET UP TO REGULATE THE ONE-WAY TRAILER RENTAL INDUSTRY AND EMPOWERING A
MEMBER TO PREVENT ANY OTHER OPERATOR FROM BECOMING A MEMBER IN HIS
AREA. 

IN THE LATE 1950'S THE ONLY PRODUCERS OF SODIUM CHLORATE IN THE
UNITED STATES WERE PENNSALT, ONE OF THE APPELLEES IN THIS CASE, HOOKER
CHEMICAL CORPORATION, AND AMERICAN POTASH AND CHEMICAL CORPORATION.  NO
NEW FIRMS HAD ENTERED THE INDUSTRY FOR A DECADE.  PRICES SEEMED TO BE
STABLE AND LITTLE EFFORT HAD BEEN MADE TO EXPAND EXISTING USES OR TO
DEVELOP NEW ONES.  BUT DURING THE 1950'S THE SODIUM CHLORATE MARKET
BEGAN TO GROW, CHIEFLY ON ACCOUNT OF THE ADOPTION OF CHLORINE DIOXIDE
BLEACHING IN THE PULP INDUSTRY.  DOMESTIC PRODUCTION MORE THAN
QUADRUPLED BETWEEN 1950 AND 1960.  THE GROWTH WAS THE MOST PRONOUNCED
IN THE SOUTHEAST.  BY 1960 THE SOUTHEAST HAD THE HEAVIEST CONCENTRATION
OF SODIUM CHLORATE BUYERS, THE LARGEST BEING THE PULP AND PAPER MILLS;
AND NEARLY HALF THE NATIONAL SODIUM CHLORATE PRODUCTIVE CAPACITY.  IN
1960 THE SOUTHEAST MARKET WAS DIVIDED AMONG THE THREE PRODUCERS AS
FOLLOWS: HOOKER, 49.5%, AMERICAN POTASH, 41.6%, PENNSALT, 8.9%. 

PENNSALT, WHOSE ONLY SODIUM CHLORATE PLANT WAS AT PORTLAND, OREGON,
BECAME INTERESTED IN ESTABLISHING A PLANT IN THE RAPIDLY GROWING
SOUTHEAST SODIUM CHLORATE MARKET.  IT MADE COST STUDIES AS EARLY AS
1951 FOR SUCH A PROJECT; AND FROM 1955 ON IT GAVE THE MATTER ALMOST
CONTINUOUS CONSIDERATION.  IN 1957 IT DECIDED TO EXPLORE THE
POSSIBILITY EITHER OF GOING IT ALONE OR DOING IT JOINTLY WITH OLIN. 
PENNSALT RECEIVED FROM ITS STAFF AND EXPERTS VARIOUS STUDIES IN THIS
REGARD AND CONTINUED TO HAVE NEGOTIATIONS WITH OLIN FOR A JOINT
VENTURE, AND POSTPONED ITS UNILATERAL PROJECT FROM TIME TO TIME PENDING
RECEIPT OF WORD FROM OLIN.  ITS FINAL DECISION WAS IN FACT MADE WHEN
PENN-OLIN WAS ORGANIZED FEBRUARY 25, 1960, PURSUANT TO A JOINT VENTURE
AGREEMENT BETWEEN OLIN AN PENNSALT, DATED TWO WEEKS EARLIER. 

IN THE EARLY 1950'S OLIN TOO WAS INVESTIGATING THE POSSIBILITIES OF
ENTERING THE SOUTHEAST INDUSTRY.  IT TOOK VARIOUS STEPS LOOKING TOWARD
ESTABLISHMENT OF A PRODUCTION PLANT IN THE SOUTHEASTERN UNITED STATES. 
IT RECEIVED NUMEROUS REPORTS FROM ITS STAFF AND ITS EXPERTS AND IT WENT
SO FAR IN NOVEMBER 1959 AS TO REACH A TENTATIVE AGREEMENT WITH A
BRITISH CONSTRUCTION COMPANY FOR THE CONSTRUCTION OF A PLANT.  ITS
UNILATERAL PROJECTS WERE, HOWEVER, ALL DROPPED WHEN THE AGREEMENT FOR
THE JOINT VENTURE WITH PENNSALT WAS REACHED. 

DURING THE YEARS WHEN PENNSALT AND OLIN WERE CONSIDERING INDEPENDENT
ENTRY INTO THE SOUTHEAST MARKET, THEY WERE ALSO DISCUSSING JOINT
ENTRY.  IN ORDER TO TEST THE SOUTHEAST MARKET THE TWO AGREED IN
DECEMBER OF 1957 THAT PENNSALT WOULD MAKE AVAILABLE TO OLIN, AS
EXCLUSIVE SELLER, 2,000 TONS OF SODIUM CHLORATE PER YEAR FOR TWO OR
THREE YEARS, OLIN AGREEING TO SELL THE CHEMICAL ONLY TO PULP AND PAPER
COMPANIES IN THE SOUTHEAST, EXCEPT FOR ONE COMPANY WHICH PENNSALT
RESERVED THE RIGHT TO SERVE DIRECTLY.  ANOTHER AGREEMENT ENTERED INTO
IN FEBRUARY 1958 PROVIDED THAT NEITHER OF THE TWO COMPANIES WOULD "MOVE
IN THE CHLORATE OR PERCHLORATE FIELD WITHOUT KEEPING THE OTHER PARTY
INFORMED."  AND EACH BY THE AGREEMENT BOUND ITSELF "TO BRING TO THE
ATTENTION OF THE OTHER ANY UNUSUAL ASPECTS OF THIS BUSINESS WHICH MIGHT
MAKE IT DESIRABLE TO PROCEED FURTHER WITH PRODUCTION PLANS."  THE
PURPOSE OF THIS LATTER AGREEMENT, IT WAS FOUND, WAS TO ASSURE THAT EACH
PARTY WOULD ADVISE THE OTHER OF ANY PLANS INDEPENDENT TO ENTER THE
MARKET BEFORE IT WOULD TAKE ANY DEFINITE ACTION ON ITS OWN. 

SO WHAT WE HAVE IN SUBSTANCE IS TWO MAJOR COMPANIES WHO ON THE EVE OF
COMPETITIVE PROJECTS IN THE SOUTHEASTERN MARKET JOIN FORCES.  IN
PRINCIPLE THE CASE IS NO DIFFERENT FROM ONE WHERE PENNSALT AND OLIN
DECIDE TO DIVIDE THE SOUTHEASTERN MARKET AS WAS DONE IN ADDYSTON PIPE
AND IN THE OTHER DIVISION-OF-MARKETS CASES ALREADY SUMMARIZED.  THROUGH
THE "JOINT VENTURE" THEY DO INDEED DIVIDE IT FIFTY-FIFTY.  THAT
DIVISION THROUGH THE DEVICE OF THE "JOINT VENTURE" IS AS PLAIN AND
PRECISE AS THOUGH MADE IN MORE FORMAL AGREEMENTS.  AS WE SAW IN THE
TIMKEN CASE, "AGREEMENTS BETWEEN LEGALLY SEPARATE PERSONS AND COMPANIES
TO SUPPRESS COMPETITION AMONG THEMSELVES AND OTHERS" CANNOT BE
JUSTIFIED "BY LABELING THE PROJECT A 'JOINT VENTURE.'"  341 U.S., AT
598.  AND WE ADDED, "PERHAPS EVERY AGREEMENT AND COMBINATION TO
RESTRAIN TRADE COULD BE SO LABELED."  IBID.  WHAT MAY NOT BE DONE BY
TWO COMPANIES WHO DECIDE TO DIVIDE A MARKET SURELY CANNOT BE DONE BY
THE CONVENIENT CREATION OF A LEGAL UMBRELLA - WHETHER JOINT VENTURE OR
COMMON OWNERSHIP AND CONTROL (SEE KIEFER-STEWART CO. V. SEAGRAM & SONS,
340 U.S. 211, 215) - UNDER WHICH THEY ACHIEVE THE SAME OBJECTIVE BY
MOVING IN UNISON. 

AN ACTUAL DIVISION OF THE MARKET THROUGH THE DEVICE OF "JOINT
VENTURE" HAS, I THINK, THE EFFECT "SUBSTANTIALLY TO LESSEN COMPETITION"
WITHIN THE MEANING OF SEC 7 OF THE CLAYTON ACT.  (FN4)  THE DISTRICT
COURT FOUND THAT NEITHER PENNSALT NOR OLIN HAD COMPLETELY REJECTED THE
IDEA OF INDEPENDENT ENTRY INTO THE SOUTHEAST.  BUT THE COURT ALSO FOUND
THAT IT IS "IMPOSSIBLE TO CONCLUDE THAT AS A MATTER OF REASONABLE
PROBABILITY BOTH PENNSALT AND OLIN WOULD HAVE BUILT PLANTS IN THE
SOUTHEAST IF PENN-OLIN HAD NOT BEEN CREATED."  THE ONLY HYPOTHESIS
ACCEPTABLE TO IT WAS THAT EITHER PENNSALT OR OLIN - BUT NOT BOTH -
WOULD HAVE ENTERED THE SOUTHEASTERN MARKET AS AN INDEPENDENT COMPETITOR
HAD THE "JOINT VENTURE" NOT MATERIALIZED.  ON THAT ASSUMPTION THE ONLY
EFFECT OF THE "JOINT VENTURE" WAS "TO ELIMINATE PENNSALT OR OLIN, AS
THE CASE MAY BE, AS A COMPETITOR," IN THAT POSTURE OF THE CASE, THE
DISTRICT COURT WAS UNWILLING TO CONCLUDE THAT THE CREATION OF PENN-OLIN
HAD THE EFFECT OF SUBSTANTIALLY LESSENING COMPETITION.    WE DO NOT, OF
COURSE, KNOW FOR CERTAIN WHAT WOULD HAVE HAPPENED IF THE "JOINT
VENTURE" HAD NOT MATERIALIZED.  BUT WE DO KNOW THAT SEC 7 DEALS ONLY
WITH PROBABILITIES, NOT CERTAINTIES.  WE KNOW THAT THE INTEREST OF EACH
COMPANY IN THE PROJECT WAS LIVELY, THAT ONE IF NOT BOTH OF THEM WOULD
PROBABLY HAVE ENTERED THAT MARKET, AND THAT EVEN IF ONLY ONE HAD
ENTERED AT THE BEGINNING THE PRESENCE OF THE OTHER ON THE PERIPHERY
WOULD IN ALL LIKELIHOOD HAVE BEEN A POTENT COMPETITIVE FACTOR.  CF.
UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S. 651, 661.  WE ALSO
KNOW THAT AS BETWEEN PENNSALT AND OLIN THE "JOINT VENTURE" FORECLOSED
ALL FUTURE COMPETITION BY DIVIDING THE MARKET FIFTY-FIFTY.  THAT COULD
NOT HAVE BEEN DONE CONSISTENTLY WITH OUR DECISIONS HAD THE "JOINT
VENTURE" BEEN CREATED AFTER PENNSALT AND OLIN HAD ENTERED THE MARKET OR
AFTER EITHER HAD DONE SO. TO ALLOW THE JOINT VENTURE TO OBTAIN
ANTITRUST IMMUNITY BECAUSE IT WAS LAUNCHED AT THE VERY THRESHOLD OF THE
ENTRY OF TWO POTENTIAL COMPETITORS INTO A TERRITORY IS TO LET SEC 7 BE
AVOIDED BY SOPHISTICATED DEVICES. 

THERE IS NO NEED TO REMAND THIS CASE FOR A FINDING "AS TO THE
REASONABLE PROBABILITY THAT EITHER ONE OF THE CORPORATIONS WOULD HAVE
ENTERED THE MARKET BY BUILDING A PLANT, WHILE THE OTHER WOULD HAVE
REMAINED A SIGNIFICANT POTENTIAL COMPETITOR."  ANTE, PP.  175-176. 
THIS CASE - NOW ALMOST THREE YEARS IN LITIGATION - HAS ALREADY PRODUCED
A TRIAL EXTENDING OVER A 23-DAY PERIOD, THE INTRODUCTION OF
APPROXIMATELY 450 EXHIBITS, AND A 1,600-PAGE RECORD.  WE SHOULD NOT
REQUIRE THE INVESTMENT OF ADDITIONAL TIME, MONEY, AND EFFORT WHERE, AS
HERE, A CASE TURNS ON ONE CRUCIAL FINDING AND THE RECORD IS SUFFICIENT
TO ENABLE THIS COURT - WHICH IS AS COMPETENT IN THIS REGARD AS THE
DISTRICT COURT - TO SUPPLY IT. 

FN1  WHITE MOTOR CO. V. UNITED STATES, 372 U.S. 253, WAS A VERTICAL
ARRANGEMENT INVOLVING A TERRITORIAL RESTRICTION WHOSE VALIDITY WE
CONCLUDED COULD BE DETERMINED ONLY AFTER A TRIAL, NOT ON MOTION FOR
SUMMARY JUDGMENT. 

FN2  SEE OPPENHEIM, ANTITRUST BOOMS AND BOOMERANGS, 59 NW. U.L. REV.
33, 35 (1964). 

FN3  THE FINDINGS OF FACT ARE DETAILED IN 63 F. SUPP. 513. 

FN4  SECTION 7 OF THE CLAYTON ACT COVERS THE ACQUISITION BY A
CORPRATION ENGAGED IN INTERSTATE COMMERCE OF THE STOCK OR ASSETS OF
ANOTHER CORPORATION ALSO ENGAGED IN INTERSTATE COMMERCE.  AN
ACQUISITION QUALIFIED UNDER SEC 7 IF THE FIRM THAT IS ACQUIRED IS
EITHER CONDUCTING BUSINESS IN INTERSTATE COMMERCE OR INTENDING OR
PREPARING TO DO SO.  IT SEEMS CLEAR FROM THE RECORD IN THIS CASE THAT
PENN-OLIN WAS FROM ITS INCEPTION INTENDED BY ITS ORGANIZERS TO ENGAGE
IN INTERSTATE COMMERCE; AND IT IN FACT IMMEDIATELY BEGAN TO ARRANGE FOR
OR CONDUCT SUCH BUSINESS.  IT WAS THEREFORE "ENGAGED" IN INTERSTATE
COMMERCE WITHIN THE MEANING OF SEC 7 WHEN PENNSALT AND OLIN ACQUIRED
ITS STOCK. 

MR. JUSTICE HARLAN, DISSENTING. 

I CAN SEE NO PURPOSE TO BE SERVED BY THIS REMAND EXCEPT TO GIVE THE
GOVERNMENT AN OPPORTUNITY TO RETRIEVE AN ANTITRUST CASE WHICH IT HAS
LOST, AND PROPERLY SO.  BELIEVING THAT THIS COURT SHOULD NOT LEND
ITSELF TO SUCH A COURSE, I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT
COURT. 
..END :




















JACOBELLIS V. OHIO 378 U.S. 184 


NO. 11.  ARGUED MARCH 26, 1963.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 29, 1963.  - REARGUED APRIL 1, 1964.  - DECIDED JUNE
22, 1964.  - 173 OHIO ST. 22, 179 N.E.2D 777, REVERSED. 


APPELLANT, MANAGER OF A MOTION PICTURE THEATER, WAS CONVICTED UNDER A
STATE OBSCENITY LAW OF POSSESSING AND EXHIBITING AN ALLEGEDLY OBSCENE
FILM, AND THE STATE SUPREME COURT UPHELD THE CONVICTION.  HELD:  THE
JUDGMENT IS REVERSED.  PP. 184-198. 

MR. JUSTICE BRENNAN, JOINED BY MR. JUSTICE GOLDBERG, CONCLUDED THAT: 

1.  THOUGH MOTION PICTURES ARE WITHIN THE CONSTITUTIONAL GUARANTEES
OF FREEDOM OF EXPRESSION, OBSCENITY IS NOT WITHIN THOSE GUARANTEES.  P.
187. 

2.  THIS COURT CANNOT AVOID MAKING AN INDEPENDENT JUDGMENT AS TO
WHETHER MATERIAL CONDEMNED AS OBSCENE IS CONSTITUTIONALLY PROTECTED. 
PP. 187-190. 

3.  THE TEST FOR OBSCENITY IS "WHETHER TO THE AVERAGE PERSON,
APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME OF THE
MATERIAL TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST."  ROTH V.
UNITED STATES, 354 U.S. 476.  PP. 191-195. 

(A)  A WORK CANNOT BE PROSCRIBED UNLESS IT IS "UTTERLY WITHOUT
REDEEMING SOCIAL IMPORTANCE," AND HENCE MATERIAL THAT DEALS WITH SEX IN
A MANNER THAT ADVOCATES IDEAS, OR THAT HAS LITERARY OR SCIENTIFIC OR
ARTISTIC VALUE OR ANY OTHER FORM OF SOCIAL IMPORTANCE, MAY NOT BE HELD
OBSCENE AND DENIED CONSTITUTIONAL PROTECTION.  PP. 191. 

(B)  THE CONSTITUTIONAL STATUS OF ALLEGEDLY OBSCENE MATERIAL DOES NOT
TURN ON A "WEIGHING" OF ITS SOCIAL IMPORTANCE AGAINST ITS PRURIENT
APPEAL, FOR A WORK MAY NOT BE PROSCRIBED UNLESS IT IS "UTTERLY" WITHOUT
SOCIAL IMPORTANCE.  P. 191. 

(C)  BEFORE MATERIAL CAN BE PROSCRIBED AS OBSCENE UNDER THIS TEST, IT
MUST BE FOUND TO GO SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN
DESCRIPTION OR REPRESENTATION.  PP.  191-192. 

(D)  THE "CONTEMPORARY COMMUNITY STANDARDS" BY WHICH THE ISSUE OF
OBSCENITY IS TO BE DETERMINED ARE NOT THOSE OF THE PARTICULAR LOCAL
COMMUNITY FROM WHICH THE CASE ARISES, BUT THOSE OF THE NATION AS A
WHOLE.  PP. 192-195. 

4.  THE RECOGNIZED INTEREST IN PREVENTING DISSEMINATION OF MATERIAL
DEEMED HARMFUL TO CHILDREN DOES NOT JUSTIFY ITS TOTAL SUPPRESSION. 
THIS CONVICTION, BASED NOT ON THE EXHIBITION OF THE FILM TO CHILDREN
BUT ON ITS EXHIBITION TO THE PUBLIC AT LARGE, MUST BE REVIEWED UNDER
THE STRICT STANDARD APPLICABLE IN DETERMINING THE SCOPE OF THE
CONSTITUTIONAL PROTECTION.  P. 195. 

5.  THE FILM IS NOT OBSCENE UNDER THE APPLICABLE STANDARD.  P. 196. 

MR. JUSTICE BLACK, JOINED BY MR. JUSTICE DOUGLAS, CONCLUDED THAT A
CONVICTION FOR EXHIBITING A MOTION PICTURE VIOLATES THE FIRST
AMENDMENT, WHICH IS MADE OBLIGATORY ON THE STATES BY THE FOURTEENTH
AMENDMENT.  PP. 196-197. 

MR. JUSTICE STEWART CONCLUDED THAT CRIMINAL OBSCENITY LAWS ARE
CONSTITUTIONALLY LIMITED UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO
"HARD-CORE PORNOGRAPHY."  P. 197. 

MR. JUSTICE GOLDBERG CONCLUDED THAT THERE IS NO JUSTIFICATION HERE
FOR MAKING AN EXCEPTION TO THE FREEDOM-OF-EXPRESSION RULE, FOR BY ANY
ARGUABLE STANDARD THIS FILM IS NOT OBSCENE.  PP. 197-198. 

JACOBELLIS V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH MR. JUSTICE GOLDBERG JOINS. 

APPELLANT, NICO JACOBELLIS, MANAGER OF A MOTION PICTURE THEATER IN
CLEVELAND HEIGHTS, OHIO, WAS CONVICTED ON TWO COUNTS OF POSSESSING AND
EXHIBITING AN OBSCENE FILM IN VIOLATION OF OHIO REVISED CODE (1963
SUPP.), SEC 2905.34.  (FN1)  HE WAS FINED $500 ON THE FIRST COUNT AND
$2,000 ON THE SECOND, AND WAS SENTENCED TO THE WORKHOUSE IF THE FINES
WERE NOT PAID.  HIS CONVICTION, BY A COURT OF THREE JUDGES UPON WAIVER
OF TRIAL BY JURY, WAS AFFIRMED BY AN INTERMEDIATE APPELLATE COURT, 115
OHIO APP. 226, 175 N.E.2D 123, AND BY THE SUPREME COURT OF OHIO, 173
OHIO ST. 22, 179 N.E.2D 777.  WE NOTED PROBABLE JURISDICTION OF THE
APPEAL, 371 U.S. 808, AND SUBSEQUENTLY RESTORED THE CASE TO THE
CALENDAR FOR REARGUMENT, 373 U.S. 901.  THE DISPOSITIVE QUESTION IS
WHETHER THE STATE COURTS PROPERLY FOUND THAT THE MOTION PICTURE
INVOLVED, A FRENCH FILM CALLED "LES AMANTS" ("THE LOVERS"), WAS OBSCENE
AND HENCE NOT ENTITLED TO THE PROTECTION FOR FREE EXPRESSION THAT IS
GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  WE CONCLUDE THAT
THE FILM IS NOT OBSCENE AND THAT THE JUDGMENT MUST ACCORDINGLY BE
REVERSED. 

MOTION PICTURES ARE WITHIN THE AMBIT OF THE CONSTITUTIONAL GUARANTEES
OF FREEDOM OF SPEECH AND OF THE PRESS.  JOSEPH BURSTYN, INC., V.
WILSON, 343 U.S. 495.  BUT IN ROTH V. UNITED STATES AND ALBERTS V.
CALIFORNIA, 354 U.S. 476, WE HELD THAT OBSCENITY IS NOT SUBJECT TO
THOSE GUARANTEES.  APPLICATION OF AN OBSCENITY LAW TO SUPPRESS A MOTION
PICTURE THUS REQUIRES ASCERTAINMENT OF THE "DIM AND UNCERTAIN LINE"
THAT OFTEN SEPARATES OBSCENITY FROM CONSTITUTIONALLY PROTECTED
EXPRESSION.  BANTAM BOOKS, INC., V. SULLIVAN, 372 U.S. 58, 66; SEE
SPEISER V. RANDALL, 357 U.S. 513, 525.  (FN2)  IT HAS BEEN SUGGESTED
THAT THIS IS A TASK IN WHICH OUR COURT NEED NOT INVOLVE ITSELF.  WE ARE
TOLD THAT THE DETERMINATION WHETHER A PARTICULAR MOTION PICTURE, BOOK,
OR OTHER WORK OF EXPRESSION IS OBSCENE CAN BE TREATED AS A PURELY
FACTUAL JUDGMENT ON WHICH A JURY'S VERDICT IS ALL BUT CONCLUSIVE, OR
THAT IN ANY EVENT THE DECISION CAN BE LEFT ESSENTIALLY TO STATE AND
LOWER FEDERAL COURTS, WITH THIS COURT EXERCISING ONLY A LIMITED REVIEW
SUCH AS THAT NEEDED TO DETERMINE WHETHER THE RULING BELOW IS SUPPORTED
BY "SUFFICIENT EVIDENCE."  THE SUGGESTION IS APPEALING, SINCE IT WOULD
LIFT FROM OUR SHOULDERS A DIFFICULT, RECURRING, AND UNPLEASANT TASK. 
BUT WE CANNOT ACCEPT IT.  SUCH AN ABNEGATION OF JUDICIAL SUPERVISION IN
THIS FIELD WOULD BE INCONSISTENT WITH OUR DUTY TO UPHOLD THE
CONSTITUTIONAL GUARANTEES.  SINCE IT IS ONLY "OBSCENITY" THAT IS
EXCLUDED FROM THE CONSTITUTIONAL PROTECTION, THE QUESTION WHETHER A
PARTICULAR WORK IS OBSCENE NECESSARILY IMPLICATES AN ISSUE OF
CONSTITUTIONAL LAW.  SEE ROTH V. UNITED STATES, SUPRA, 354 U.S., AT 497
498 (SEPARATE OPINION).  SUCH AN ISSUE, WE THINK, MUST ULTIMATELY BE
DECIDED BY THIS COURT.  OUR DUTY ADMITS OF NO "SUBSTITUTE FOR FACING UP
TO THE TOUGH INDIVIDUAL PROBLEMS OF CONSTITUTIONAL JUDGMENT INVOLVED IN
EVERY OBSCENITY CASE."  ID., AT 498; SEE MANUAL ENTERPRISES, INC., V.
DAY, 370 U.S. 478, 488 (OPINION OF HARLAN, J.).  (FN3) 

IN OTHER AREAS INVOLVING CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS
CLAUSE, THE COURT HAS CONSISTENTLY RECOGNIZED ITS DUTY TO APPLY THE
APPLICABLE RULES OF LAW UPON THE BASIS OF AN INDEPENDENT REVIEW OF THE
FACTS OF EACH CASE.  E.G., WATTS V. INDIANA, 338 U.S. 49, 51; NORRIS V.
ALABAMA, 294 U.S. 587, 590.  (FN4)  AND THIS HAS BEEN PARTICULARLY TRUE
WHERE RIGHTS HAVE BEEN ASSERTED UNDER THE FIRST AMENDMENT GUARANTEES OF
FREE EXPRESSION.  THUS IN PENNEKAMP V. FLORIDA, 328 U.S. 331, 335, THE
COURT STATED: 

"THE CONSTITUTION HAS IMPOSED UPON THIS COURT FINAL AUTHORITY TO
DETERMINE THE MEANING AND APPLICATION OF THOSE WORDS OF THAT INSTRUMENT
WHICH REQUIRE INTERPRETATION TO RESOLVE JUDICIAL ISSUES.  WITH THAT
RESPONSIBILITY, WE ARE COMPELLED TO EXAMINE FOR OURSELVES THE
STATEMENTS IN ISSUE AND THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE TO
SEE WHETHER OR NOT THEY  ...  ARE OF A CHARACTER WHICH THE PRINCIPLES
OF THE FIRST AMENDMENT, AS ADOPTED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, PROTECT."  (FN5) 

WE CANNOT UNDERSTAND WHY THE COURT'S DUTY SHOULD BE ANY DIFFERENT IN
THE PRESENT CASE, WHERE JACOBELLIS HAS BEEN SUBJECT TO A CRIMINAL
CONVICTION FOR DISSEMINATING A WORK OF EXPRESSION AND IS CHALLENGING
THAT CONVICTION AS A DEPRIVATION OF RIGHTS GUARANTEED BY THE FIRST AND
FOURTEENTH AMENDMENTS.  NOR CAN WE UNDERSTAND WHY THE COURT'S
PERFORMANCE OF ITS CONSTITUTIONAL AND JUDICIAL FUNCTION IN THIS SORT OF
CASE SHOULD BE DENIGRATED BY SUCH EPITHETS AS "CENSOR" OR "SUPER
CENSOR."  IN JUDGING ALLEGED OBSCENITY THE COURT IS NO MORE "CENSORING"
EXPRESSION THAN IT HAS IN OTHER CASES "CENSORED" CRITICISM OF JUDGES
AND PUBLIC OFFICIALS, ADVOCACY OF GOVERNMENTAL OVERTHROW, OR SPEECH
ALLEGED TO CONSTITUTE A BREACH OF THE PEACE.  USE OF AN OPPROBRIOUS
LABEL CAN NEITHER OBSCURE NOR IMPUGN THE COURT'S PERFORMANCE OF ITS
OBLIGATION TO TEST CHALLENGED JUDGMENTS AGAINST THE GUARANTEES OF THE
FIRST AND FOURTEENTH AMENDMENTS AND, IN DOING SO, TO DELINEATE THE
SCOPE OF CONSTITUTIONALLY PROTECTED SPEECH.  HENCE WE REAFFIRM THE
PRINCIPLE THAT, IN "OBSCENITY" CASES AS IN ALL OTHERS INVOLVING RIGHTS
DERIVED FROM THE FIRST AMENDMENT GUARANTEES OF FREE EXPRESSION, THIS
COURT CANNOT AVOID MAKING AN INDEPENDENT CONSTITUTIONAL JUDGMENT ON THE
FACTS OF THE CASE AS TO WHETHER THE MATERIAL INVOLVED IS
CONSTITUTIONALLY PROTECTED.  (FN6) 

THE QUESTION OF THE PROPER STANDARD FOR MAKING THIS DETERMINATION HAS
BEEN THE SUBJECT OF MUCH DISCUSSION AND CONTROVERSY SINCE OUR DECISION
IN ROTH SEVEN YEARS AGO.  RECOGNIZING THAT THE TEST FOR OBSCENITY
ENUNCIATED THERE - "WHETHER TO THE AVERAGE PERSON, APPLYING
CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME OF THE MATERIAL
TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST," 354 U.S., AT 489 - IS
NOT PERFECT, WE THINK ANY SUBSTITUTE WOULD RAISE EQUALLY DIFFICULT
PROBLEMS, AND WE THEREFORE ADHERE TO THAT STANDARD.  WE WOULD
REITERATE, HOWEVER, OUR RECOGNITION IN ROTH THAT OBSCENITY IS EXCLUDED
FROM THE CONSTITUTIONAL PROTECTION ONLY BECAUSE IT IS "UTTERLY WITHOUT
REDEEMING SOCIAL IMPORTANCE," AND THAT "THE PORTRAYAL OF SEX, E.G., IN
ART, LITERATURE AND SCIENTIFIC WORKS, IS NOT ITSELF SUFFICIENT REASON
TO DENY MATERIAL THE CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH AND
PRESS."  ID., AT 484, 487.  IT FOLLOWS THAT MATERIAL DEALING WITH SEX
IN A MANNER THAT ADVOCATES IDEAS, KINGSLEY INT'L PICTURES CORP. V.
REGENTS, 360 U.S. 684, OR THAT HAS LITERARY OR SCIENTIFIC OR ARTISTIC
VALUE OR ANY OTHER FORM OF SOCIAL IMPORTANCE, MAY NOT BE BRANDED AS
OBSCENITY AND DENIED THE CONSTITUTIONAL PROTECTION.  (FN7) NOR MAY THE
CONSTITUTIONAL STATUS OF THE MATERIAL BE MADE TO TURN ON A "WEIGHING"
OF ITS SOCIAL IMPORTANCE AGAINST ITS PRURIENT APPEAL, FOR A WORK CANNOT
BE PROSCRIBED UNLESS IT IS "UTTERLY" WITHOUT SOCIAL IMPORTANCE.  SEE
ZEITLIN V. ARNEBERGH, 59 CAL. 2D 901, 920, 383 P.2D 152, 165, 31 CAL.
RPTR.  800, 813 (1963).  IT SHOULD ALSO BE RECOGNIZED THAT THE ROTH
STANDARD REQUIRES IN THE FIRST INSTANCE A FINDING THAT THE MATERIAL
"GOES SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN DESCRIPTION OR
REPRESENTATION OF SUCH MATTERS."  THIS WAS A REQUIREMENT OF THE MODEL
PENAL CODE TEST THAT WE APPROVED IN ROTH, 354 U.S., AT 487, N. 20, AND
IT IS EXPLICITLY REAFFIRMED IN THE MORE RECENT PROPOSED OFFICIAL DRAFT
OF THE CODE.  (FN8) IN THE ABSENCE OF SUCH A DEVIATION FROM SOCIETY'S
STANDARDS OF DECENCY, WE DO NOT SEE HOW ANY OFFICIAL INQUIRY INTO THE
ALLEGEDLY PRURIENT APPEAL OF A WORK OF EXPRESSION CAN BE SQUARED WITH
THE GUARANTEES OF THE FIRST AND FOURTEENTH AMENDMENTS.  SEE MANUAL
ENTERPRISES, INC., V. DAY, 370 U.S. 478, 482-488 (OPINION OF HARLAN,
J.). 

IT HAS BEEN SUGGESTED THAT THE "CONTEMPORARY COMMUNITY STANDARDS"
ASPECT OF THE ROTH TEST IMPLIES A DETERMINATION OF THE CONSTITUTIONAL
QUESTION OF OBSCENITY IN EACH CASE BY THE STANDARDS OF THE PARTICULAR
LOCAL COMMUNITY FROM WHICH THE CASE ARISES.  THIS IS AN INCORRECT
READING OF ROTH.  THE CONCEPT OF "CONTEMPORARY COMMUNITY STANDARDS" WAS
FIRST EXPRESSED BY JUDGE LEARNED HAND IN UNITED STATES V. KENNERLEY,
209 F. 119, 121 (D.C.S.D.N.Y. 1913), WHERE HE SAID: 

"YET, IF THE TIME IS NOT YET WHEN MEN THINK INNOCENT ALL THAT WHICH
IS HONESTLY GERMANE TO A PURE SUBJECT, HOWEVER LITTLE IT MAY MINCE ITS
WORDS, STILL I SCARCELY THINK THAT THEY WOULD FORBID ALL WHICH MIGHT
CORRUPT THE MOST CORRUPTIBLE, OR THAT SOCIETY IS PREPARED TO ACCEPT FOR
ITS OWN LIMITATIONS THOSE WHICH MAY PERHAPS BE NECESSARY TO THE WEAKEST
OF ITS MEMBERS.  IF THERE BE NO ABSTRACT DEFINITION, SUCH AS I HAVE
SUGGESTED, SHOULD NOT THE WORD 'OBSCENE' BE ALLOWED TO INDICATE THE
PRESENT CRITICAL POINT IN THE COMPROMISE BETWEEN CANDOR AND SHAME AT
WHICH THE COMMUNITY MAY HAVE ARRIVED HERE AND NOW?  ...  TO PUT THOUGHT
IN LEASH TO THE AVERAGE CONSCIENCE OF THE TIME IS PERHAPS TOLERABLE,
BUT TO FETTER IT BY THE NECESSITIES OF THE LOWEST AND LEAST CAPABLE
SEEMS A FATAL POLICY. 

"NOR IS IT AN OBJECTION, I THINK, THAT SUCH AN INTERPRETATION GIVES
TO THE WORDS OF THE STATUTE A VARYING MEANING FROM TIME TO TIME.  SUCH
WORDS AS THESE DO NOT EMBALM THE PRECISE MORALS OF AN AGE OR PLACE;
WHILE THEY PRESUPPOSE THAT SOME THINGS WILL ALWAYS BE SHOCKING TO THE
PUBLIC TASTE, THE VAGUE SUBJECT-MATTER IS LEFT TO THE GRADUAL
DEVELOPMENT OF GENERAL NOTIONS ABOUT WHAT IS DECENT  ...  ."

IT SEEMS CLEAR THAT IN THIS PASSAGE JUDGE HAND WAS REFERRING NOT TO
STATE AND LOCAL "COMMUNITIES," BUT RATHER TO "THE COMMUNITY" IN THE
SENSE OF "SOCIETY AT LARGE; ...  THE PUBLIC, OR PEOPLE IN GENERAL." 
(FN9)  THUS, HE RECOGNIZED THAT UNDER HIS STANDARD THE CONCEPT OF
OBSCENITY WOULD HAVE "A VARYING MEANING FROM TIME TO TIME" - NOT FROM
COUNTY TO COUNTY, OR TOWN TO TOWN. 

WE DO NOT SEE HOW ANY "LOCAL" DEFINITION OF THE "COMMUNITY" COULD
PROPERLY BE EMPLOYED IN DELINEATING THE AREA OF EXPRESSION THAT IS
PROTECTED BY THE FEDERAL CONSTITUTION.  MR. JUSTICE HARLAN POINTED OUT
IN MANUAL ENTERPRISES, INC., V. DAY, SUPRA, 370 U.S., AT 488, THAT A
STANDARD BASED ON A PARTICULAR LOCAL COMMUNITY WOULD HAVE "THE
INTOLERABLE CONSEQUENCE OF DENYING SOME SECTIONS OF THE COUNTRY ACCESS
TO MATERIAL, THERE DEEMED ACCEPTABLE, WHICH IN OTHERS MIGHT BE
CONSIDERED OFFENSIVE TO PREVAILING COMMUNITY STANDARDS OF DECENCY.  CF.
BUTLER V. MICHIGAN, 352 U.S. 380."  IT IS TRUE THAT MANUAL ENTERPRISES
DEALT WITH THE FEDERAL STATUTE BANNING OBSCENITY FROM THE MAILS.  BUT
THE MAILS ARE NOT THE ONLY MEANS BY WHICH WORKS OF EXPRESSION CROSS
LOCAL-COMMUNITY LINES IN THIS COUNTRY.  IT CAN HARDLY BE ASSUMED THAT
ALL THE PATRONS OF A PARTICULAR LIBRARY, BOOKSTAND, OR MOTION PICTURE
THEATER ARE RESIDENTS OF THE SMALLEST LOCAL "COMMUNITY" THAT CAN BE
DRAWN AROUND THAT ESTABLISHMENT.  FURTHERMORE, TO SUSTAIN THE
SUPRESSION OF A PARTICULAR BOOK OR FILM IN ONE LOCALITY WOULD DETER ITS
DISSEMINATION IN OTHER LOCALITIES WHERE IT MIGHT BE HELD NOT OBSCENE,
SINCE SELLERS AND EXHIBITORS WOULD BE RELUCTANT TO RISK CRIMINAL
CONVICTION IN TESTING THE VARIATION BETWEEN THE TWO PLACES.  IT WOULD
BE A HARDY PERSON WHO WOULD SELL A BOOK OR EXHIBIT A FILM ANYWHERE IN
THE LAND AFTER THIS COURT HAD SUSTAINED THE JUDGMENT OF ONE "COMMUNITY"
HOLDING IT TO BE OUTSIDE THE CONSTITUTIONAL PROTECTION.  THE RESULT
WOULD THUS BE "TO RESTRICT THE PUBLIC'S ACCESS TO FORMS OF THE PRINTED
WORD WHICH THE STATE COULD NOT CONSTITUTIONALLY SUPPRESS DIRECTLY." 
SMITH V. CALIFORNIA, 361 U.S. 147, 154. 

IT IS TRUE THAT LOCAL COMMUNITIES THROUGHOUT THE LAND ARE IN FACT
DIVERSE, AND THAT IN CASES SUCH AS THIS ONE THE COURT IS CONFRONTED
WITH THE TASK OF RECONCILING THE RIGHTS OF SUCH COMMUNITIES WITH THE
RIGHTS OF INDIVIDUALS.  COMMUNITIES VARY, HOWEVER, IN MANY RESPECTS
OTHER THAN THEIR TOLERATION OF ALLEGED OBSCENITY, AND SUCH VARIANCES
HAVE NEVER BEEN CONSIDERED TO REQUIRE OR JUSTIFY A VARYING STANDARD FOR
APPLICATION OF THE FEDERAL CONSTITUTION.  THE COURT HAS REGULARLY BEEN
COMPELLED, IN REVIEWING CRIMINAL CONVICTIONS CHALLENGED UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, TO RECONCILE THE
CONFLICTING RIGHTS OF THE LOCAL COMMUNITY WHICH BROUGHT THE PROSECUTION
AND OF THE INDIVIDUAL DEFENDANT.  SUCH A TASK IS ADMITTEDLY DIFFICULT
AND DELICATE, BUT IT IS INHERENT IN THE COURT'S DUTY OF DETERMINING
WHETHER A PARTICULAR CONVICTION WORKED A DEPRIVATION OF RIGHTS
GUARANTEED BY THE FEDERAL CONSTITUTION.  THE COURT HAS NOT SHRUNK FROM
DISCHARGING THAT DUTY IN OTHER AREAS, AND WE SEE NO REASON WHY IT
SHOULD DO SO HERE.  THE COURT HAS EXPLICITLY REFUSED TO TOLERATE A
RESULT WHEREBY "THE CONSTITUTIONAL LIMITS OF FREE EXPRESSION IN THE
NATION WOULD VARY WITH STATE LINES," PENNEKAMP V. FLORIDA, SUPRA, 328
U.S., AT 335; WE SEE EVEN LESS JUSTIFICATION FOR ALLOWING SUCH LIMITS
TO VARY WITH TOWN OR COUNTY LINES.  WE THUS REAFFIRM THE POSITION TAKEN
IN ROTH TO THE EFFECT THAT THE CONSTITUTIONAL STATUS OF AN ALLEGEDLY
OBSCENE WORK MUST BE DETERMINED ON THE BASIS OF A NATIONAL STANDARD. 
(FN10)  IT IS, AFTER ALL, A NATIONAL CONSTITUTION WE ARE EXPOUNDING. 
WE RECOGNIZE THE LEGITIMATE AND INDEED EXIGENT INTEREST OF STATES AND
LOCALITIES THROUGHOUT THE NATION IN PREVENTING THE DISSEMINATION OF
MATERIAL DEEMED HARMFUL TO CHILDREN.  BUT THAT INTEREST DOES NOT
JUSTIFY A TOTAL SUPPRESSION OF SUCH MATERIAL, THE EFFECT OF WHICH WOULD
BE TO "REDUCE THE ADULT POPULATION  ...  TO READING ONLY WHAT IS FIT
FOR CHILDREN."  BUTLER V. MICHIGAN, 352 U.S. 380, 383.  STATE AND LOCAL
AUTHORITIES MIGHT WELL CONSIDER WHETHER THEIR OBJECTIVES IN THIS AREA
WOULD BE BETTER SERVED BY LAWS AIMED SPECIFICALLY AT PREVENTING
DISTRIBUTION OF OBJECTIONABLE MATERIAL TO CHILDREN, RATHER THAN AT
TOTALLY PROHIBITING ITS DISSEMINATION.  (FN11)  SINCE THE PRESENT
CONVICTION IS BASED UPON EXHIBITION OF THE FILM TO THE PUBLIC AT LARGE
AND NOT UPON ITS EXHIBITION TO CHILDREN, THE JUDGMENT MUST BE REVIEWED
UNDER THE STRICT STANDARD APPLICABLE IN DETERMINING THE SCOPE OF THE
EXPRESSION THAT IS PROTECTED BY THE CONSTITUTION. 

WE HAVE APPLIED THAT STANDARD TO THE MOTION PICTURE IN QUESTION. 
"THE LOVERS" INVOLVES A WOMAN BORED WITH HER LIFE AND MARRIAGE WHO
ABANDONS HER HUSBAND AND FAMILY FOR A YOUNG ARCHAEOLOGIST WITH WHOM SHE
HAS SUDDENLY FALLEN IN LOVE.  THERE IS AN EXPLICIT LOVE SCENE IN THE
LAST REEL OF THE FILM, AND THE STATE'S OBJECTIONS ARE BASED ALMOST
ENTIRELY UPON THAT SCENE.  THE FILM WAS FAVORABLY REVIEWED IN A NUMBER
OF NATIONAL PUBLICATIONS, ALTHOUGH DISPARAGED IN OTHERS, AND WAS RATED
BY AT LEAST TWO CRITICS OF NATIONAL STATURE AMONG THE BEST FILMS OF THE
YEAR IN WHICH IT WAS PRODUCED.  IT WAS SHOWN IN APPROXIMATELY 100 OF
THE LARGER CITIES IN THE UNITED STATES, INCLUDING COLUMBUS AND TOLEDO,
OHIO.  WE HAVE VIEWED THE FILM, IN THE LIGHT OF THE RECORD MADE IN THE
TRIAL COURT, AND WE CONCLUDE THAT IT IS NOT OBSCENE WITHIN THE
STANDARDS ENUNCIATED IN ROTH V. UNITED STATES AND ALBERTS V.
CALIFORNIA, WHICH WE REAFFIRM HERE.  REVERSED. 

FN1  "SELLING, EXHIBITING, AND POSSESSING OBSCENE LITERATURE OR
DRUGS, FOR CRIMINAL PURPOSES. 

"NO PERSON SHALL KNOWINGLY SELL, LEND, GIVE AWAY, EXHIBIT, OR OFFER
TO SELL, LEND, GIVE AWAY, OR EXHIBIT, OR PUBLISH OR OFFER TO PUBLISH OR
HAVE IN HIS POSSESSION OR UNDER HIS CONTROL AN OBSCENE, LEWD, OR
LASCIVIOUS BOOK, MAGAZINE, PAMPHLET, PAPER, WRITING, ADVERTISEMENT,
CIRCULAR, PRINT, PICTURE, PHOTOGRAPH, MOTION PICTURE FILM, OR BOOK,
PAMPHLET, PAPER, MAGAZINE NOT WHOLLY OBSCENE BUT CONTAINING LEWD OR
LASCIVIOUS ARTICLES, ADVERTISEMENTS, PHOTOGRAPHS, OR DRAWING,
REPRESENTATION, FIGURE, IMAGE, CAST, INSTRUMENT, OR ARTICLE OF AN
INDECENT OR IMMORAL NATURE, OR A DRUG, MEDICINE, ARTICLE, OR THING
INTENDED FOR THE PREVENTION OF CONCEPTION OR FOR CAUSING AN ABORTION,
OR ADVERTISE ANY OF THEM FOR SALE, OR WRITE, PRINT, OR CAUSE TO BE
WRITTEN OR PRINTED A CARD, BOOK, PAMPHLET, ADVERTISEMENT, OR NOTICE
GIVING INFORMATION WHEN, WHERE, HOW, OF WHOM, OR BY WHAT MEANS ANY OF
SUCH ARTICLES OR THINGS CAN BE PURCHASED OR OBTAINED, OR MANUFACTURE,
DRAW, PRINT, OR MAKE SUCH ARTICLES OR THINGS, OR SELL, GIVE AWAY, OR
SHOW TO A MINOR, A BOOK, PAMPHLET, MAGAZINE, NEWSPAPER, STORY PAPER, OR
OTHER PAPER DEVOTED TO THE PUBLICATION, OR PRINCIPALLY MADE UP, OF
CRIMINAL NEWS, POLICE REPORTS, OR ACCOUNTS OF CRIMINAL DEEDS, OR
PICTURES AND STORIES OF IMMORAL DEEDS, LUST, OR CRIME, OR EXHIBIT UPON
A STREET OR HIGHWAY OR IN A PLACE WHICH MAY BE WITHIN THE VIEW OF A
MINOR, ANY OF SUCH BOOKS, PAPERS, MAGAZINES, OR PICTURES. 

"WHOEVER VIOLATES THIS SECTION SHALL BE FINED NOT LESS THAN TWO
HUNDRED NOR MORE THAN TWO THOUSAND DOLLARS OR IMPRISONED NOT LESS THAN
ONE NOR MORE THAN SEVEN YEARS, OR BOTH." 

FN2  IT IS TOO LATE IN THE DAY TO ARGUE THAT THE LOCATION OF THE LINE
IS DIFFERENT, AND THE TASK OF ASCERTAINING IT EASIER, WHEN A STATE
RATHER THAN A FEDERAL OBSCENITY LAW IS INVOLVED.  THE VIEW THAT THE
CONSTITUTIONAL GUARANTEES OF FREE EXPRESSION DO NOT APPLY AS FULLY TO
THE STATES AS THEY DO TO THE FEDERAL GOVERNMENT WAS REJECTED IN ROTH
ALBERTS, SUPRA, WHERE THE COURT'S SINGLE OPINION APPLIED THE SAME
STANDARDS TO BOTH A STATE AND A FEDERAL CONVICTION.  CF. KER V.
CALIFORNIA, 374 U.S. 23, 33; MALLOY V. HOGAN, ANTE, PP. 1, 10-11. 

FN3  SEE KINGSLEY INT'L PICTURES CORP. V. REGENTS, 360 U.S. 684, 708
(SEPARATE OPINION): 

"IT IS SOMETIMES SAID THAT THIS COURT SHOULD SHUN CONSIDERING THE
PARTICULARITIES OF INDIVIDUAL CASES IN THIS DIFFICULT FIELD LEST THE
COURT BECOME A FINAL 'BOARD OF CENSORSHIP.'  BUT I CANNOT UNDERSTAND
WHY IT SHOULD BE THOUGHT THAT THE PROCESS OF CONSTITUTIONAL JUDGMENT IN
THIS REALM SOMEHOW STANDS APART FROM THAT INVOLVED IN OTHER FIELDS,
PARTICULARLY THOSE PRESENTING QUESTIONS OF DUE PROCESS  ...  ." 

SEE ALSO LOCKHART AND MCCLURE, CENSORSHIP OF OBSCENITY:  THE
DEVELOPING CONSTITUTIONAL STANDARDS, 45 MINN. L. REV. 5, 116 (1960):
"THIS OBLIGATION - TO REACH AN INDEPENDENT JUDGMENT IN APPLYING
CONSTITUTIONAL STANDARDS AND CRITERIA TO CONSTITUTIONAL ISSUES THAT MAY
BE CAST BY LOWER COURTS 'IN THE FORM OF DETERMINATIONS OF FACT' -
APPEARS FULLY APPLICABLE TO FINDINGS OF OBSCENITY BY JURIES, TRIAL
COURTS, AND ADMINISTRATIVE AGENCIES.  THE SUPREME COURT IS SUBJECT TO
THAT OBLIGATION, AS IS EVERY COURT BEFORE WHICH THE CONSTITUTIONAL
ISSUE IS RAISED." 

AND SEE ID., AT 119: 

"IT MAY BE TRUE  ...  THAT JUDGES 'POSSESS NO SPECIAL EXPERTISE'
QUALIFYING THEM 'TO SUPERVISE THE PRIVATE MORALS OF THE NATION' OR TO
DECIDE 'WHAT MOVIES ARE GOOD OR BAD FOR LOCAL COMMUNITIES.'  BUT THEY
DO HAVE A FAR KEENER UNDERSTANDING OF THE IMPORTANCE OF FREE EXPRESSION
THAN DO MOST GOVERNMENT ADMINISTRATORS OR JURORS, AND THEY HAVE HAD
CONSIDERABLE EXPERIENCE IN MAKING VALUE JUDGMENTS OF THE TYPE REQUIRED
BY THE CONSTITUTIONAL STANDARDS FOR OBSCENITY.  IF FREEDOM IS TO BE
PRESERVED, NEITHER GOVERNMENT CENSORSHIP EXPERTS NOR JURIES CAN BE LEFT
TO MAKE THE FINAL EFFECTIVE DECISIONS RESTRAINING FREE EXPRESSION. 
THEIR DECISIONS MUST BE SUBJECT TO EFFECTIVE, INDEPENDENT REVIEW, AND
WE KNOW OF NO GROUP BETTER QUALIFIED FOR THAT REVIEW THAN THE APPELLATE
JUDGES OF THIS COUNTRY UNDER THE GUIDANCE OF THE SUPREME COURT." 

FN4  SEE ALSO FISKE V. KANSAS, 274 U.S. 380, 385-386; HAYNES V.
WASHINGTON, 373 U.S. 503, 515-516; CHAMBERS V. FLORIDA, 309 U.S. 227,
229; HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652, 659; LISENBA V.
CALIFORNIA, 314 U.S. 219, 237-238; ASHCRAFT V. TENNESSEE, 322 U.S. 143,
147-148; NAPUE V. ILLINOIS, 360 U.S. 264, 271. 

FN5  SEE ALSO NIEMOTKO V. MARYLAND, 340 U.S. 268, 271; CRAIG V.
HARNEY, 331 U.S. 367, 373-374; BRIDGES V. CALIFORNIA, 314 U.S. 252,
271; EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 235; NEW YORK TIMES CO.
V. SULLIVAN, 376 U.S. 254, 285. 

FN6  THIS IS PRECISELY WHAT THE COURT DID IN TIMES FILM CORP. V. CITY
OF CHICAGO, 355 U.S. 35; ONE, INC., V. OLESEN, 355 U.S. 371; AND
SUNSHINE BOOK CO. V. SUMMERFIELD, 355 U.S. 372.  THE OBLIGATION HAS
BEEN RECOGNIZED BY STATE COURTS AS WELL.  SEE, E.G., STATE V. HUDSON
COUNTY NEWS CO., 41 N.J. 247, 256-257, 196 A.2D 225, 230 (1963);
ZEITLIN V. ARNEBERGH, 59 CAL. 2D 901, 909-911, 383 P.2D 152, 157-158,
31 CAL. RPTR.  800, 805-806 (1963); PEOPLE V. RICHMOND COUNTY NEWS,
INC., 9 N.Y.2D 578, 580-581, 175 N.E.2D 681, 681-682, 216 N.Y.S.2D 369,
370 (1961).  SEE ALSO AMERICAN LAW INSTITUTE, MODEL PENAL CODE,
PROPOSED OFFICIAL DRAFT (MAY 4, 1962), SEC 251.4(4). 

NOR DO WE THINK OUR DUTY OF CONSTITUTIONAL ADJUDICATION IN THIS AREA
CAN PROPERLY BE RELAXED BY RELIANCE ON A "SUFFICIENT EVIDENCE" STANDARD
OF REVIEW.  EVEN IN JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY
DETERMINATIONS, QUESTIONS OF "CONSTITUTIONAL FACT" HAVE BEEN HELD TO
REQUIRE DE NOVO REVIEW.  NG FUNG HO V. WHITE, 259 U.S. 276, 284-285;
CROWELL V. BENSON, 285 U.S. 22, 54-65. 

FN7  SEE, E.G., ATTORNEY GENERAL V. BOOK NAMED "TROPIC OF CANCER,"
345 MASS. 11, 184 N.E.2D 328 (MASS. 1962); ZEITLIN V. ARNEBERGH, 59
CAL. 2D 901, 383 P.2D 152, 31 CAL.  RPTR.  800 (1963). 

FN8  AMERICAN LAW INSTITUTE, MODEL PENAL CODE, PROPOSED OFFICIAL
DRAFT (MAY 4, 1962), SEC 251.4(1): 

"MATERIAL IS OBSCENE IF, CONSIDERED AS A WHOLE, ITS PREDOMINANT
APPEAL IS TO PRURIENT INTEREST ...  AND IF IN ADDITION IT GOES
SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN DESCRIBING OR
REPRESENTING SUCH MATTERS." 

FN9  WEBSTER'S NEW INTERNATIONAL DICTIONARY (2D ED. 1949), AT 542. 

FN10  SEE STATE V. HUDSON COUNTY NEWS CO., 41 N.J. 247, 266, 196 A.2D
225, 235 (1963).  LOCKHART AND MCCLURE, NOTE 3, SUPRA, 45 MINN. L.
REV., AT 108-112; AMERICAN LAW INSTITUTE, MODEL PENAL CODE, TENTATIVE
DRAFT NO. 6 (MAY 6, 1957), AT 45; PROPOSED OFFICIAL DRAFT (MAY 4,
1962), SEC 251.4(4)(D). 

FN11  SEE STATE V. SETTLE, 90 R.I. 195, 156 A.2D 921 (1959). 

MR. JUSTICE WHITE CONCURS IN THE JUDGMENT. 

OPINION OF MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS. 

I CONCUR IN THE REVERSAL OF THIS JUDGMENT.  MY BELIEF, AS STATED IN
KINGSLEY INTERNATIONAL PICTURES CORP. V. REGENTS, 360 U.S. 684, 690, IS
THAT "IF DESPITE THE CONSTITUTION  ...  THIS NATION IS TO EMBARK ON THE
DANGEROUS ROAD OF CENSORSHIP,  ...  THIS COURT IS ABOUT THE MOST
INAPPROPRIATE SUPREME BOARD OF CENSORS THAT COULD BE FOUND."  MY REASON
FOR REVERSING IS THAT I THINK THE CONVICTION OF APPELLANT OR ANYONE
ELSE FOR EXHIBITNG A MOTION PICTURE ABRIDGES FREEDOM OF THE PRESS AS
SAFEGUARDED BY THE FIRST AMENDMENT, WHICH IS MADE OBLIGATORY ON THE
STATES BY THE FOURTEENTH.  SEE MY CONCURRING OPINIONS IN QUANTITY OF
COPIES OF BOOKS V. KANSAS, POST, P. 213; SMITH V. CALIFORNIA, 361 U.S.
147, 155; KINGSLEY INTERNATIONAL PICTURES CORP. V. REGENTS, SUPRA.  SEE
ALSO THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN ROTH V. UNITED
STATES, 354 U.S. 476, 508, AND HIS CONCURRING OPINION IN SUPERIOR
FILMS, INC., V. DEPARTMENT OF EDUCATION, 346 U.S. 587, 588, IN BOTH OF
WHICH I JOINED. 

MR. JUSTICE STEWART, CONCURRING. 

IT IS POSSIBLE TO READ THE COURT'S OPINION IN ROTH V. UNITED STATES
AND ALBERTS V. CALIFORNIA, 354 U.S. 476, IN A VARIETY OF WAYS.  IN
SAYING THIS, I IMPLY NO CRITICISM OF THE COURT, WHICH IN THOSE CASES
WAS FACED WITH THE TASK OF TRYING TO DEFINE WHAT MAY BE INDEFINABLE.  I
HAVE REACHED THE CONCLUSION, WHICH I THINK IS CONFIRMED AT LEAST BY
NEGATIVE IMPLICATION IN THE COURT'S DECISIONS SINCE ROTH AND ALBERTS,
(FN1) THAT UNDER THE FIRST AND FOURTEENTH AMENDMENTS CRIMINAL LAWS IN
THIS AREA ARE CONSTITUTIONALLY LIMITED TO HARD-CORE PORNOGRAPHY.  (FN2)
I SHALL NOT TODAY ATTEMPT FURTHER TO DEFINE THE KINDS OF MATERIAL I
UNDERSTAND TO BE EMBRACED WITHIN THAT SHORTHAND DESCRIPTION; AND
PERHAPS I COULD NEVER SUCCEED IN INTELLIGIBLY DOING SO.  BUT I KNOW IT
WHEN I SEE IT, AND THE MOTION PICTURE INVOLVED IN THIS CASE IS NOT
THAT. 

FN1  TIMES FILM CORP. V. CITY OF CHICAGO, 355 U.S. 35, REVERSING 244
F.2D 432; ONE, INCORPORATED, V. OLESEN, 355 U.S. 371, REVERSING 241
F.2D 772; SUNSHINE BOOK CO. V. SUMMERFIELD, 355 U.S. 372, REVERSING 101
U.S. APP. D.C. 358, 249 F.2D 114; MANUAL ENTERPRISES V. DAY, 370 U.S.
478 (OPINION OF HARLAN, J.). 

FN2  CF. PEOPLE V. RICHMOND COUNTY NEWS, 9 N.Y.2D 578, 175 N.E.2D
681, 216 N.Y.S.2D 369. 

MR. JUSTICE GOLDBERG, CONCURRING. 

THE QUESTION PRESENTED IS WHETHER THE FIRST AND FOURTEENTH AMENDMENTS
PERMIT THE IMPOSITION OF CRIMINAL PUNISHMENT FOR EXHIBITING THE MOTION
PICTURE ENTITLED "THE LOVERS."  I HAVE VIEWED THE FILM AND I WISH
MERELY TO ADD TO MY BROTHER BRENNAN'S DESCRIPTION THAT THE LOVE SCENE
DEEMED OBJECTIONABLE IS SO FRAGMENTARY AND FLEETING THAT ONLY A
CENSOR'S ALERT WOULD MAKE AN AUDIENCE CONSCIOUS THAT SOMETHING
"QUESTIONABLE" IS BEING PORTRAYED.  EXCEPT FOR THIS RAPID SEQUENCE, THE
FILM CONCERNS ITSELF WITH THE HISTORY OF AN ILL-MATCHED AND UNHAPPY
MARRIAGE - A FAMILIAR SUBJECT IN OLD AND NEW NOVELS AND IN CURRENT
TELEVISION SOAP OPERAS. 

ALTHOUGH I FULLY AGREE WITH WHAT MY BROTHER BRENNAN HAS WRITTEN, I AM
ALSO OF THE VIEW THAT ADHERENCE TO THE PRINCIPLES STATED IN JOSEPH
BURSTYN, INC., V. WILSON, 343 U.S. 495, REQUIRES REVERSAL.  IN BURSTYN
MR. JUSTICE CLARK, DELIVERING THE UNANIMOUS JUDGMENT OF THE COURT
SAID: 

"EXPRESSION BY MEANS OF MOTION PICTURES IS INCLUDED WITHIN THE FREE
SPEECH AND FREE PRESS GUARANTY OF THE FIRST AND FOURTEENTH AMENDMENTS
...  . 

"TO HOLD THAT LIBERTY OF EXPRESSION BY MEANS OF MOTION PICTURES IS
GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS, HOWEVER, IS NOT THE
END OF OUR PROBLEM.  IT DOES NOT FOLLOW THAT THE CONSTITUTION REQUIRES
ABSOLUTE FREEDOM TO EXHIBIT EVERY MOTION PICTURE OF EVERY KIND AT ALL
TIMES AND ALL PLACES  ...  .  NOR DOES IT FOLLOW THAT MOTION PICTURES
ARE NECESSARILY SUBJECT TO THE PRECISE RULES GOVERNING ANY OTHER
PARTICULAR METHOD OF EXPRESSION.  EACH METHOD TENDS TO PRESENT ITS OWN
PECULIAR PROBLEMS.  BUT THE BASIC PRINCIPLES OF FREEDOM OF SPEECH AND
THE PRESS, LIKE THE FIRST AMENDMENT'S COMMAND, DO NOT VARY.  THOSE
PRINCIPLES, AS THEY HAVE FREQUENTLY BEEN ENUNCIATED BY THIS COURT, MAKE
FREEDOM OF EXPRESSION THE RULE."  ID., AT 502-503. 

AS IN BURSTYN "THERE IS NO JUSTIFICATION IN THIS CASE FOR MAKING AN
EXCEPTION TO THAT RULE," ID., AT 503, FOR BY ANY ARGUABLE STANDARD THE
EXHIBITORS OF THIS MOTION PICTURE MAY NOT BE CRIMINALLY PROSECUTED
UNLESS THE EXAGGERATED CHARACTER OF THE ADVERTISING RATHER THAN THE
OBSCENITY OF THE FILM IS TO BE THE CONSTITUTIONAL CRITERION. 

THE CHIEF JUSTICE, WITH WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

IN THIS AND OTHER CASES IN THIS AREA OF THE LAW, WHICH ARE COMING TO
US IN EVER-INCREASING NUMBERS, WE ARE FACED WITH THE RESOLUTION OF
RIGHTS BASIC BOTH TO INDIVIDUALS AND TO SOCIETY AS A WHOLE. 
SPECIFICALLY, WE ARE CALLED UPON TO RECONCILE THE RIGHT OF THE NATION
AND OF THE STATES TO MAINTAIN A DECENT SOCIETY AND, ON THE OTHER HAND,
THE RIGHT OF INDIVIDUALS TO EXPRESS THEMSELVES FREELY IN ACCORDANCE
WITH THE GUARANTEES OF THE FIRST AND FOURTEENTH AMENDMENTS.  ALTHOUGH
THE FEDERAL GOVERNMENT AND VIRTUALLY EVERY STATE HAS HAD LAWS
PROSCRIBING OBSCENITY SINCE THE UNION WAS FORMED, AND ALTHOUGH THIS
COURT HAS RECENTLY DECIDED THAT OBSCENITY IS NOT WITHIN THE PROTECTION
OF THE FIRST AMENDMENT,  (FN1) NEITHER COURTS NOR LEGISLATURES HAVE
BEEN ABLE TO EVOLVE A TRULY SATISFACTORY DEFINITION OF OBSCENITY.  IN
OTHER AREAS OF THE LAW, TERMS LIKE "NEGLIGENCE," ALTHOUGH IN COMMON USE
FOR CENTURIES, HAVE BEEN DIFFICULT TO DEFINE EXCEPT IN THE MOST GENERAL
MANNER.  YET THE COURTS HAVE BEEN ABLE TO FUNCTION IN SUCH AREAS WITH A
REASONABLE DEGREE OF EFFICIENCY.  THE OBSCENITY PROBLEM, HOWEVER, IS
AGGRAVATED BY THE FACT THAT IT INVOLVES THE AREA OF PUBLIC EXPRESSION,
AN AREA IN WHICH A BROAD RANGE OF FREEDOM IS VITAL TO OUR SOCIETY AND
IS CONSTITUTIONALLY PROTECTED.    RECENTLY THIS COURT PUT ITS HAND TO
THE TASK OF DEFINING THE TERM "OBSCENITY" IN ROTH V. UNITED STATES, 354
U.S. 476.  THE DEFINITION ENUNCIATED IN THAT CASE HAS GENERATED MUCH
LEGAL SPECULATION AS WELL AS FURTHER JUDICIAL INTERPRETATION BY STATE
AND FEDERAL COURTS.  IT HAS ALSO BEEN RELIED UPON BY LEGISLATURES.  YET
OBSCENITY CASES CONTINUE TO COME TO THIS COURT, AND IT BECOMES
INCREASINGLY APPARENT THAT WE MUST SETTLE AS WELL AS WE CAN THE
QUESTION OF WHAT CONSTITUTES "OBSCENITY" AND THE QUESTION OF WHAT
STANDARDS ARE PERMISSIBLE IN ENFORCING PROSCRIPTIONS AGAINST OBSCENE
MATTER.  THIS COURT HEARS CASES SUCH AS THE INSTANT ONE NOT MERELY TO
RULE UPON THE ALLEGED OBSCENITY OF A SPECIFIC FILM OR BOOK BUT TO
ESTABLISH PRINCIPLES FOR THE GUIDANCE OF LOWER COURTS AND
LEGISLATURES.  YET MOST OF OUR DECISIONS SINCE ROTH HAVE BEEN GIVEN
WITHOUT OPINION AND HAVE THUS FAILED TO FURNISH SUCH GUIDANCE.  NOR
DOES THE COURT IN THE INSTANT CASE - WHICH HAS NOW BEEN TWICE ARGUED
BEFORE US - SHED ANY GREATER LIGHT ON THE PROBLEM.  THEREFORE, I
CONSIDER IT APPROPRIATE TO STATE MY VIEWS AT THIS TIME. 

FOR ALL THE SOUND AND FURY THAT THE ROTH TEST HAS GENERATED, IT HAS
NOT BEEN PROVED UNSOUND, AND I BELIEVE THAT WE SHOULD TRY TO LIVE WITH
IT - AT LEAST UNTIL A MORE SATISFACTORY DEFINITION IS EVOLVED.  NO
GOVERNMENT - BE IT FEDERAL, STATE, OR LOCAL - SHOULD BE FORCED TO
CHOOSE BETWEEN REPRESSING ALL MATERIAL, INCLUDING THAT WITHIN THE REALM
OF DECENCY, AND ALLOWING UNRESTRAINED LICENSE TO PUBLISH ANY MATERIAL,
NO MATTER HOW VILE.  THERE MUST BE A RULE OF REASON IN THIS AS IN OTHER
AREAS OF THE LAW, AND WE HAVE ATTEMPTED IN THE ROTH CASE TO PROVIDE
SUCH A RULE. 

IT IS MY BELIEF THAT WHEN THE COURT SAID IN ROTH THAT OBSCENITY IS TO
BE DEFINED BY REFERENCE TO "COMMUNITY STANDARDS," IT MEANT COMMUNITY
STANDARDS - NOT A NATIONAL STANDARD, AS IS SOMETIMES ARGUED.  I BELIEVE
THAT THERE IS NO PROVABLE "NATIONAL STANDARD," AND PERHAPS THERE SHOULD
BE NONE.  AT ALL EVENTS, THIS COURT HAS NOT BEEN ABLE TO ENUNCIATE ONE,
AND IT WOULD BE UNREASONABLE TO EXPECT LOCAL COURTS TO DIVINE ONE.  IT
IS SAID THAT SUCH A "COMMUNITY" APPROACH MAY WELL RESULT IN MATERIAL
BEING PROSCRIBED AS OBSCENE IN ONE COMMUNITY BUT NOT IN ANOTHER, AND,
IN ALL PROBABILITY, THAT IS TRUE.  BUT COMMUNITIES THROUGHOUT THE
NATION ARE IN FACT DIVERSE, AND IT MUST BE REMEMBERED THAT, IN CASES
SUCH AS THIS ONE, THE COURT IS CONFRONTED WITH THE TASK OF RECONCILING
CONFLICTING RIGHTS OF THE DIVERSE COMMUNITIES WITHIN OUR SOCIETY AND OF
INDIVIDUALS. 

WE ARE TOLD THAT ONLY "HARD CORE PORNOGRAPHY" SHOULD BE DENIED THE
PROTECTION OF THE FIRST AMENDMENT.  BUT WHO CAN DEFINE "HARD CORE
PORNOGRAPHY" WITH ANY GREATER CLARITY THAN "OBSCENITY"?  AND EVEN IF WE
WERE TO RETREAT TO THAT POSITION, WE WOULD SOON BE FACED WITH THE NEED
TO DEFINE THAT TERM JUST AS WE NOW ARE FACED WITH THE NEED TO DEFINE
"OBSCENITY."  MEANWHILE, THOSE WHO PROFIT FROM THE COMMERCIAL
EXPLOITATION OF OBSCENITY WOULD CONTINUE TO PLY THEIR TRADE
UNMOLESTED. 

IN MY OPINION, THE USE TO WHICH VARIOUS MATERIALS ARE PUT - NOT JUST
THE WORDS AND PICTURES THEMSELVES - MUST BE CONSIDERED IN DETERMINING
WHETHER OR NOT THE MATERIALS ARE OBSCENE.  A TECHNICAL OR LEGAL
TREATISE ON PORNOGRAPHY MAY WELL BE INOFFENSIVE UNDER MOST
CIRCUMSTANCES BUT, AT THE SAME TIME, "OBSCENE" IN THE EXTREME WHEN SOLD
OR DISPLAYED TO CHILDREN.  (FN2) 

FINALLY, MATERIAL WHICH IS IN FACT OBSCENE UNDER THE ROTH TEST MAY BE
PROSCRIBED IN A NUMBER OF WAYS - FOR INSTANCE, BY CONFISCATION OF THE
MATERIAL OR BY PROSECUTION OF THOSE WHO DISSEMINATE IT - PROVIDED
ALWAYS THAT THE PROSCRIPTION, WHATEVER IT MAY BE, IS IMPOSED IN
ACCORDANCE WITH CONSTITUTIONAL STANDARDS.  IF THE PROCEEDING INVOLVED
IS CRIMINAL, THERE MUST BE A RIGHT TO A JURY TRIAL, A RIGHT TO COUNSEL,
AND ALL THE OTHER SAFEGUARDS NECESSARY TO ASSURE DUE PROCESS OF LAW. 
IF THE PROCEEDING IS CIVIL IN NATURE, THE CONSTITUTIONAL REQUIREMENTS
APPLICABLE IN SUCH A CASE MUST ALSO BE OBSERVED.  THERE HAS BEEN SOME
TENDENCY IN DEALING WITH THIS AREA OF THE LAW FOR ENFORCEMENT AGENCIES
TO DO ONLY THAT WHICH IS EASY TO DO - FOR INSTANCE, TO SEIZE AND
DESTROY BOOKS WITH ONLY A MINIMUM OF PROTECTION.  AS A RESULT, COURTS
ARE OFTEN PRESENTED WITH PROCEDURALLY BAD CASES AND, IN DEALING WITH
THEM, APPEAR TO BE ACQUIESCING IN THE DISSEMINATION OF OBSCENITY.  BUT
IF CASES WERE WELL PREPARED AND WERE CONDUCTED WITH THE APPROPRIATE
CONCERN FOR CONSTITUTIONAL SAFEGUARDS, COURTS WOULD NOT HESITATE TO
ENFORCE THE LAWS AGAINST OBSCENITY.  THUS, ENFORCEMENT AGENCIES MUST
REALIZE THAT THERE IS NO ROYAL ROAD TO ENFORCEMENT; HARD AND
CONSCIENTIOUS WORK IS REQUIRED. 

IN LIGHT OF THE FOREGOING, I WOULD REITERATE MY ACCEPTANCE OF THE
RULE OF THE ROTH CASE:  MATERIAL IS OBSCENE AND NOT CONSTITUTIONALLY
PROTECTED AGAINST REGULATION AND PROSCRIPTION IF "TO THE AVERAGE
PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME
OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST."  354
U.S., AT 489.  I WOULD COMMIT THE ENFORCEMENT OF THIS RULE TO THE
APPROPRIATE STATE AND FEDERAL COURTS, AND I WOULD ACCEPT THEIR
JUDGMENTS MADE PURSUANT TO THE ROTH RULE, LIMITING MYSELF TO A
CONSIDERATION ONLY OF WHETHER THERE IS SUFFICIENT EVIDENCE IN THE
RECORD UPON WHICH A FINDING OF OBSCENITY COULD BE MADE.  IF THERE IS NO
EVIDENCE IN THE RECORD UPON WHICH SUCH A FINDING COULD BE MADE,
OBVIOUSLY THE MATERIAL INVOLVED CANNOT BE HELD OBSCENE.  CF. THOMPSON
V. CITY OF LOUISVILLE, 362 U.S. 199.  BUT SINCE A MERE MODICUM OF
EVIDENCE MAY SATISFY A "NO EVIDENCE" STANDARD, I AM UNWILLING TO GIVE
THE IMPORTANT CONSTITUTIONAL RIGHT OF FREE EXPRESSION SUCH LIMITED
PROTECTION.  HOWEVER, PROTECTION OF SOCIETY'S RIGHT TO MAINTAIN ITS
MORAL FIBER AND THE EFFECTIVE ADMINISTRATION OF JUSTICE REQUIRE THAT
THIS COURT NOT ESTABLISH ITSELF AS AN ULTIMATE CENSOR, IN EACH CASE
READING THE ENTIRE RECORD, VIEWING THE ACCUSED MATERIAL, AND MAKING AN
INDEPENDENT DE NOVO JUDGMENT ON THE QUESTION OF OBSCENITY.  THEREFORE,
ONCE A FINDING OF OBSCENITY HAS BEEN MADE BELOW UNDER A PROPER
APPLICATION OF THE ROTH TEST, I WOULD APPLY A "SUFFICIENT EVIDENCE"
STANDARD OF REVIEW - REQUIRING SOMETHING MORE THAN MERELY ANY EVIDENCE
BUT SOMETHING LESS THAN "SUBSTANTIAL EVIDENCE ON THE RECORD INCLUDING
THE ALLEGEDLY OBSCENE MATERIAL AS A WHOLE."  CF. UNIVERSAL CAMERA CORP.
V. LABOR BOARD, 340 U.S. 474.  THIS IS THE ONLY REASONABLE WAY I CAN
SEE TO OBVIATE THE NECESSITY OF THIS COURT'S SITTING AS THE SUPER
CENSOR OF ALL THE OBSCENITY PURVEYED THROUGHOUT THE NATION. 

WHILE IN THIS CASE, I DO NOT SUBSCRIBE TO SOME OF THE STATE'S
EXTRAVAGANT CONTENTIONS, NEITHER CAN I SAY THAT THE COURTS BELOW ACTED
WITH INTEMPERANCE OR WITHOUT SUFFICIENT EVIDENCE IN FINDING THE MOVING
PICTURE OBSCENE WITHIN THE MEANING OF THE ROTH TEST.  THEREFORE, I
WOULD AFFIRM THE JUDGMENT. 

FN1  ROTH V. UNITED STATES, 354 U.S. 476. 

FN2  IN THE INSTANT CASE, FOR EXAMPLE, THE ADVERTISEMENTS PUBLISHED
TO INDUCE THE PUBLIC TO VIEW THE MOTION PICTURE PROVIDE SOME EVIDENCE
OF THE FILM'S DOMINANT THEME:  "WHEN ALL CONVENTIONS EXPLODE  ...  IN
THE MOST DARING LOVE STORY EVER FILMED."  "AS CLOSE TO AUTHENTIC AMOUR
AS IS POSSIBLE ON THE SCREEN."  "THE FRANKEST LOVE SCENES YET SEEN ON
FILM."  "CONTAINS ONE OF THE LONGEST AND MOST SENSUOUS LOVE SCENES TO
BE SEEN IN THIS COUNTRY." 

MR. JUSTICE HARLAN, DISSENTING. 

WHILE AGREEING WITH MY BROTHER BRENNAN'S OPINION THAT THE
RESPONSIBILITIES OF THE COURT IN THIS AREA ARE NO DIFFERENT FROM THOSE
WHICH ATTEND THE ADJUDICATION OF KINDRED CONSTITUTIONAL QUESTIONS, I
HAVE HERETOFORE EXPRESSED THE VIEW THAT THE STATES ARE CONSTITUTIONALLY
PERMITTED GREATER LATITUDE IN DETERMINING WHAT IS BANNABLE ON THE SCORE
OF OBSCENITY THAN IS SO WITH THE FEDERAL GOVERNMENT.  SEE MY OPINION IN
ROTH V. UNITED STATES, 354 U.S. 476, 496; CF. MY OPINION IN MANUAL
ENTERPRISES, INC., V. DAY, 370 U.S. 478.  WHILE, AS CORRECTLY SAID IN
MR. JUSTICE BRENNAN'S OPINION, THE COURT HAS NOT ACCEPTED THAT VIEW, I
NONETHELESS FEEL FREE TO ADHERE TO IT IN THIS STILL DEVELOPING ASPECT
OF CONSTITUTIONAL LAW. 

THE MORE I SEE OF THESE OBSCENITY CASES THE MORE CONVINCED I BECOME
THAT IN PERMITTING THE STATES WIDE, BUT NOT FEDERALLY UNRESTRICTED,
SCOPE IN THIS FIELD, WHILE HOLDING THE FEDERAL GOVERNMENT WITH A TIGHT
REIN, LIES THE BEST PROMISE FOR ACHIEVING A SENSIBLE ACCOMMODATION
BETWEEN THE PUBLIC INTEREST SOUGHT TO BE SERVED BY OBSCENITY LAWS (CF.
MY DISSENTING OPINION IN BANTAM BOOKS, INC., V. SULLIVAN, 372 U.S. 58,
76, 77) AND PROTECTION OF GENUINE RIGHTS OF FREE EXPRESSION. 

I EXPERIENCE NO GREATER EASE THAN DO OTHER MEMBERS OF THE COURT IN
ATTEMPTING TO VERBALIZE GENERALLY THE RESPECTIVE CONSTITUTIONAL TESTS,
FOR IN TRUTH THE MATTER IN THE LAST ANALYSIS DEPENDS ON HOW PARTICULAR
CHALLENGED MATERIAL HAPPENS TO STRIKE THE MINDS OF JURORS OR JUDGES AND
ULTIMATELY THOSE OF A MAJORITY OF THE MEMBERS OF THIS COURT.  THE
APPLICATION OF ANY GENERAL CONSTITUTIONAL TESTS MUST THUS NECESSARILY
BE PRICKED OUT ON A CASE-BY-CASE BASIS, BUT AS A POINT OF DEPARTURE I
WOULD APPLY TO THE FEDERAL GOVERNMENT THE ROTH STANDARDS AS AMPLIFIED
IN MY OPINION IN MANUAL ENTERPRISES, SUPRA.  AS TO THE STATES, I WOULD
MAKE THE FEDERAL TEST ONE OF RATIONALITY.  I WOULD NOT PROHIBIT THEM
FROM BANNING ANY MATERIAL WHICH, TAKEN AS A WHOLE, HAS BEEN REASONABLY
FOUND IN STATE JUDICIAL PROCEEDINGS TO TREAT WITH SEX IN A
FUNDAMENTALLY OFFENSIVE MANNER, UNDER RATIONALLY ESTABLISHED CRITERIA
FOR JUDGING SUCH MATERIAL. 

ON THIS BASIS, HAVING VIEWED THE MOTION PICTURE IN QUESTION, I THINK
THE STATE ACTED WITHIN PERMISSIBLE LIMITS IN CONDEMNING THE FILM AND
WOULD AFFIRM THE JUDGMENT OF THE OHIO SUPREME COURT. 
..END :







A QUANTITY OF COPIES OF BOOKS V. KANSAS 378 U.S. 205 


NO. 449.  ARGUED APRIL 1-2, 1964.  - DECIDED JUNE 22, 1964.  - 191 KAN.
13, 379 P.2D 254, REVERSED. 


A STATE STATUTE DEFINED OBSCENITY, PROSCRIBED DISTRIBUTION OF OBSCENE
MATERIALS, AND AUTHORIZED THEIR SEIZURE BEFORE, AND THEIR DESTRUCTION
AFTER, AN ADVERSARY DETERMINATION OF THEIR OBSCENITY.  THOUGH THE
STATUTE REQUIRED THE FILING OF A VERIFIED INFORMATION BY THE COUNTY
ATTORNEY OR ATTORNEY GENERAL STATING ONLY THAT THERE "IS AN  ...
OBSCENE BOOK  ...  LOCATED WITHIN HIS COUNTY," THE INFORMATION FILED BY
THE ATTORNEY GENERAL WENT FURTHER AND IDENTIFIED BY TITLE 59 ALLEGEDLY
OBSCENE NOVELS WHICH WERE STATED TO HAVE BEEN PUBLISHED UNDER A CERTAIN
CAPTION; COPIES OF SEVEN NOVELS PUBLISHED UNDER THAT CAPTION WERE FILED
WITH THE INFORMATION; AND AN EX PARTE INQUIRY WAS HELD BY THE DISTRICT
JUDGE DURING WHICH HE "SCRUTINIZED" THE SEVEN BOOKS, CONCLUDING THAT
THEY APPEARED OBSCENE AND AFFORDED GROUNDS TO BELIEVE THAT ANY PAPER
BACK NOVELS PUBLISHED UNDER THE SAME CAPTION WERE OBSCENE.  HIS WARRANT
AUTHORIZED SEIZURE AT THE PLACE OF BUSINESS OF APPELLANTS'"NEWS
SERVICE" OF THE NOVELS IDENTIFIED BY TITLE IN THE INFORMATION.  THIRTY
ONE OF THE TITLES WERE FOUND ON APPELLANTS' PREMISES WHEN THE WARRANT
WAS EXECUTED, AND ALL 1,715 COPIES OF THEM WERE SEIZED.  AT A HEARING
TEN DAYS AFTER THE SEIZURE, THE COURT DENIED APPELLANTS' CLAIM THAT BY
FAILING TO AFFORD A PRE-SEIZURE HEARING ON THE QUESTION WHETHER THE
BOOKS WERE OBSCENE, THE STATUTORY PROCEDURE OPERATED AS AN
UNCONSTITUTIONAL PRIOR RESTRAINT.  FOLLOWING A FINAL HEARING HELD ABOUT
SEVEN WEEKS AFTER SEIZURE, THE COURT HELD THE 31 NOVELS OBSCENE AND
RULED THAT THE SEIZED COPIES SHOULD BE DESTROYED ON FURTHER ORDER.  THE
STATE SUPREME COURT AFFIRMED THE LOWER COURT'S ORDER.  HELD:  THE
JUDGMENT OF THE STATE SUPREME COURT IS REVERSED.  PP. 206-215. 

MR. JUSTICE BRENNAN, JOINED BY THE CHIEF JUSTICE, MR. JUSTICE WHITE,
AND MR. JUSTICE GOLDBERG, WITHOUT REACHING THE QUESTION WHETHER THE
NOVLES WERE OBSCENE, CONCLUDED THAT THE PROCEDURE FOLLOWED IN ISSUING
AND EXECUTING THE WARRANT OF SEIZURE PRIOR TO A HEARING ON THE ISSUE OF
OBSCENITY WAS UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT BECAUSE (A) IT
AUTHORIZED THE SHERIFF TO SEIZE ALL COPIES OF THE SPECIFIED TITLES AND
(B) IT DID NOT AFFORD A HEARING BEFORE THE WARRANT ISSUED ON THE
OBSCENITY OF EVEN THE SEVEN NOVELS FILED WITH THE INFORMATION.  PP. 208
213. 

MR. JUSTICE BLACK, JOINED BY MR. JUSTICE DOUGLAS, CONCLUDED THAT IT
IS NOT NECESSARY TO CONSIDER THE PROCEDURAL QUESTIONS SINCE THE STATE
STATUTE IS UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT MADE APPLICABLE
TO THE STATES BY THE FOURTEENTH AMENDMENT.  PP. 213-214. 

MR. JUSTICE STEWART CONCLUDED THAT THE STATE STATUTE COULD NOT
CONSTITUTIONALLY SUPPRESS THE BOOKS BECAUSE THEY WERE NOT "HARD-CORE
PORNOGRAPHY."  PP. 214-215. 

A QUANTITY OF COPIES OF BOOKS ET AL. V. KANSAS. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE WHITE, AND MR.
JUSTICE GOLDBERG JOIN. 

UNDER A KANSAS STATUTE AUTHORIZING THE SEIZURE OF ALLEGEDLY OBSCENE
BOOKS BEFORE AN ADVERSARY DETERMINATION OF THEIR OBSCENITY AND, AFTER
THAT DETERMINATION, THEIR DESTRUCTION BY BURNING OR OTHERWISE.  (FN1)
THE ATTORNEY GENERAL OF KANSAS OBTAINED AN ORDER FROM THE DISTRICT
COURT OF GEARY COUNTY DIRECTING THE SHERIFF OF THE COUNTY TO SEIZE AND
IMPOUND, PENDING HEARING, COPIES OF CERTAIN PAPERBACK NOVELS AT THE
PLACE OF BUSINESS OF P-K NEWS SERVICE, JUNCTION CITY, KANSAS.  AFTER
HEARING, THE COURT ENTERED A SECOND ORDER DIRECTING THE SHRIFF TO
DESTROY THE 1,715 COPIES OF 31 NOVELS WHICH HAD BEEN SEIZED.  THE
KANSAS SUPREME COURT HELD THAT THE PROCEDURES MET CONSTITUTIONAL
REQUIREMENTS AND AFFIRMED THE DISTRICT COURT'S ORDER.  191 KAN. 13, 379
P.2D 254.  PROBABLE JURISDICTION WAS NOTED, 375 U.S. 919.  WE CONCLUDE
THAT THE PROCEDURES FOLLOWED IN ISSUING THE WARRANT FOR THE SEIZURE OF
THE BOOKS, AND AUTHORIZING THEIR IMPOUNDING PENDING HEARING, WERE
CONSTITUTIONALLY INSUFFICIENT BECAUSE THEY DID NOT ADEQUATELY SAFEGUARD
AGAINST THE SUPPRESSION OF NONOBSCENE BOOKS.  FOR THIS REASON WE THINK
THE JUDGMENT MUST BE REVERSED.  THEREFORE WE DO NOT REACH, AND INTIMATE
NO VIEW UPON, THE APPELLANTS' CONTENTION THAT THE KANSAS COURTS ERRED
IN HOLDING THAT THE NOVELS ARE OBSCENE. 

INFORMATION STATING ONLY THAT "UPON INFORMATION AND BELIEF  ...  THERE
IS AN  ...  OBSCENE BOOK  ...  LOCATED WITHIN HIS COUNTY."  THE STATE
ATTORNEY GENERAL WENT FURTHER, HOWEVER, AND FILED AN INFORMATION
IDENTIFYING BY TITLE 59 NOVELS, AND STATING THAT "EACH OF SAID BOOKS
HAS BEEN PUBLISHED AS 'THIS IS AN ORIGINAL NIGHTSTAND BOOK.'"  HE ALSO
FILED WITH THE INFORMATION COPIES OF SEVEN NOVELS PUBLISHED UNDER THAT
CAPTION, SIX OF WHICH WERE NAMED BY TITLE IN THE INFORMATION;
PARTICULAR PASSAGES IN THE SEVEN NOVELS WERE MARKED WITH PENCILED
NOTATIONS OR SLIPS OF PAPER.  ALTHOUGH ALSO NOT EXPRESSLY REQUIRED BY
THE STATUTE, THE DISTRICT JUDGE, ON APPLICATION OF THE ATTORNEY
GENERAL, CONDUCTED A 45-MINUTE EX PARTE INQUIRY DURING WHICH HE
"SCRUTINIZED" THE SEVEN BOOKS; AT THE CONCLUSION OF THIS EXAMINATION,
HE STATED FOR THE RECORD THAT THEY "APPEAR TO BE OBSCENE LITERATURE AS
DEFINED" UNDER THE KANSAS STATUTE "AND GIVE THIS COURT REASONABLE
GROUNDS TO BELIEVE THAT ANY PAPERBACKED PUBLICATION CARRYING THE
FOLLOWING:  'THIS IS AN ORIGINAL NIGHT STAND BOOK' WOULD FALL WITHIN
THE SAME CATEGORY  ...  ."  HE ISSUED A WARRANT WHICH AUTHORIZED THE
SHERIFF TO SEIZE ONLY THE PARTICULAR NOVELS IDENTIFIED BY TITLE IN THE
INFORMATION.  WHEN THE WARRANT WAS EXECUTED ON THE DATE IT WAS ISSUED,
ONLY 31 OF THE TITLES WERE FOUND ON P-K'S PREMISES.  ALL COPIES OF SUCH
TITLES, HOWEVER, 1,715 BOOKS IN ALL, WERE SEIZED AND IMPOUNDED.  AT THE
HEARING HELD 10 DAYS LATER PURSUANT TO A NOTICE INCLUDED IN THE
WARRANT, P-K MADE A MOTION TO QUASH THE INFORMATION AND THE WARRANT ON
THE GROUND, AMONG OTHERS, THAT THE PROCEDURE PRECEDING THE SEIZURE WAS
CONSTITUTIONALLY DEFICIENT.  THE CLAIM WAS THAT BY FAILING FIRST TO
AFFORD P-K A HEARING ON THE QUESTION WHETHER THE BOOKS WERE OBSCENE,
THE PROCEDURE "OPERATES AS A PRIOR RESTRAINT ON THE CIRCULATION AND
DISSEMINATION OF BOOKS" IN VIOLATION OF THE CONSTITUTIONAL RESTRICTIONS
AGAINST ABRIDGMENT OF FREEDOM OF SPEECH AND PRESS.  THE MOTION WAS
DENIED, AND FOLLOWING A FINAL HEARING HELD ABOUT SEVEN WEEKS AFTER THE
SEIZURE (THE HEARING DATE WAS CONTINUED ON MOTION OF P-K), THE COURT
HELD THAT ALL 31 NOVELS WERE OBSCENE AND ORDERED THE SHERIFF TO STAND
READY TO DESTROY THE 1,715 COPIES ON FURTHER ORDER. 

THE STEPS TAKEN BEYOND THE EXPRESS REQUIREMENTS OF THE STATUTE WERE
THOUGH BY THE ATTORNEY GENERAL TO BE NECESSARY UNDER OUR DECISION IN
MARCUS V. SEARCH WARRANT, 367 U.S. 717, DECIDED A FEW WEEKS BEFORE THE
INFORMATION WAS FILED.  MARCUS INVOLVED A PROCEEDING UNDER A STRIKINGLY
SIMILAR MISSOURI SEARCH AND SEIZURE STATUTE AND IMPLEMENTING RULE OF
COURT.  SEE 367 U.S. 716, AT NOTES 2, 3.  IN MARCUS THE WARRANT GAVE
THE POLICE VIRTUALLY UNLIMITED AUTHORITY TO SEIZE ANY PUBLICATIONS
WHICH THEY CONSIDERED TO BE OBSCENE, AND WAS ISSUED ON A VERIFIED
COMPLAINT LACKING ANY SPECIFIC DESCRIPTION OF THE PUBLICATIONS TO BE
SEIZED, AND WITHOUT PRIOR SUBMISSION OF ANY PUBLICATIONS WHATEVER TO
THE JUDGE ISSUING THE WARRANT.  WE REVERSED A JUDGMENT DIRECTING THE
DESTRUCTION OF THE COPIES OF 100 PUBLICATIONS HELD TO BE OBSCENE,
HOLDING THAT, EVEN ASSUMING THAT THEY WERE OBSCENE, THE PROCEDURES
LEADING TO THEIR CONDEMNATION WERE CONSTITUTIONALLY DEFICIENT FOR LACK
OF SAFEGUARDS TO PREVENT SUPPRESSION OF NONOBSCENE PUBLICATIONS
PROTECTED BY THE CONSTITUTION. 

IT IS OUR VIEW THAT SINCE THE WARRANT HERE AUTHORIZED THE SHERIFF TO
SEIZE ALL COPIES OF THE SPECIFIED TITLES, AND SINCE P-K WAS NOT
AFFORDED A HEARING ON THE QUESTION OF THE OBSCENITY EVEN OF THE SEVEN
NOVELS BEFORE THE WARRANT ISSUED, THE PROCEDURE WAS LIKEWISE
CONSTITUTIONALLY DEFICIENT.  (FN2)  THIS IS THE TEACHING OF KINGSLEY
BOOKS, INC., V. BROWN, 354 U.S. 436.  SEE MARCUS, AT PP. 734-738.  THE
NEW YORK INJUNCTIVE PROCEDURE THERE SUSTAINED DOES NOT AFFORD EX PARTE
RELIEF BUT POSTPONES ALL INJUNCTIVE RELIEF UNTIL "BOTH SIDES HAVE HAD
AN OPPORTUNITY TO BE HEARD."  TENNEY V. LIBERTY NEWS DISTRIBUTORS, 13
APP. DIV. 2D 770, 215 N.Y.S.2D 663, 664.  IN MARCUS WE EXPLICITLY SAID
THAT KINGSLEY BOOKS "DOES NOT SUPPORT THE PROPOSITION THAT THE STATE
MAY IMPOSE THE EXTENSIVE RESTRAINTS IMPOSED HERE ON THE DISTRIBUTION OF
THESE PUBLICATIONS PRIOR TO AN ADVERSARY PROCEEDING ON THE ISSUE OF
OBSCENITY, IRRESPECTIVE OF WHETHER OR NOT THE MATERIAL IS LEGALLY
OBSCENE."  367 U.S., AT 735-736.  A SEIZURE OF ALL COPIES OF THE NAMED
TITLES IS INDEED MORE REPRESSIVE THAN AN INJUNCTION PREVENTING FURTHER
SALE OF THE BOOKS.  STATE REGULATION OF OBSCENITY MUST "CONFORM TO
PROCEDURES THAT WILL ENSURE AGAINST THE CURTAILMENT OF CONSTITUTIONALLY
PROTECTED EXPRESSION, WHICH IS OFTEN SEPARATED FROM OBSCENITY ONLY BY A
DIM AND UNCERTAIN LINE."  BANTAM BOOKS, INC., V. SULLIVAN, 372 U.S. 58,
66; THE CONSTITUTION REQUIRES A PROCEDURE "DESIGNED TO FOCUS
SEARCHINGLY ON THE QUESTION OF OBSCENITY," MARCUS, P. 732.  WE
THEREFORE CONCLUDE THAT IN NOT FIRST AFFORDING P-K AN ADVERSARY
HEARING, THE PROCEDURE LEADING TO THE SEIZURE ORDER WAS
CONSTITUTIONALLY DEFICIENT.  WHAT WE SAID OF THE MISSOURI PROCEDURE,
ID., AT 736-737, ALSO FITS THE KANSAS PROCEDURE EMPLOYED TO REMOVE
THESE BOOKS FROM CIRCULATION: 

"  ...  THERE IS NO DOUBT THAT AN EFFECTIVE RESTRAINT - INDEED THE
MOST EFFECTIVE RESTRAINT POSSIBLE - WAS IMPOSED PRIOR TO HEARING ON THE
CIRCULATION OF THE PUBLICATIONS IN THIS CASE, BECAUSE ALL COPIES ON
WHICH THE SHERIFF COULD LAY HIS HANDS WERE PHYSICALLY REMOVED  ...
FROM THE PREMISES OF THE WHOLESALE DISTRIBUTOR.  AN OPPORTUNITY  ...
TO CIRCULATE THE BOOKS  ...  AND THEN RAISE THE CLAIM OF NONOBSCENITY
BY WAY OF DEFENSE TO A PROSECUTION FOR DOING SO WAS NEVER AFFORDED
THESE APPELLANTS BECAUSE THE COPIES THEY POSSESSED WERE TAKEN AWAY. 
THEIR ABILITY TO CIRCULATE THEIR PUBLICATIONS WAS LEFT TO THE CHANCE OF
SECURING OTHER COPIES, THEMSELVES SUBJECT TO MASS SEIZURE UNDER OTHER
SUCH WARRANTS.  THE PUBLIC'S OPPORTUNITY TO OBTAIN THE PUBLICATIONS WAS
THUS DETERMINED BY THE DISTRIBUTOR'S READINESS AND ABILITY TO OUTWIT
THE POLICE BY OBTAINING AND SELLING OTHER COPIES BEFORE THEY IN TURN
COULD BE SEIZED.  IN ADDITION TO ITS UNSEEMLINESS, WE DO NOT BELIEVE
THAT THIS KIND OF ENFORCED COMPETITION AFFORDS A REASONABLE LIKELIHOOD
THAT NONOBSCENE PUBLICATIONS, ENTITLED TO CONSTITUTIONAL PROTECTION,
WILL REACH THE PUBLIC.  A DISTRIBUTOR MAY HAVE EVERY REASON TO BELIEVE
THAT A PUBLICATION IS CONSTITUTIONALLY PROTECTED AND WILL BE SO HELD
AFTER JUDICIAL HEARING, BUT HIS BELIEF IS UNAVAILING AS AGAINST THE
CONTRARY EX PARTE JUDGMENT PURSUANT TO WHICH THE SHERIFF  ...  SEIZES
IT FROM HIM." 

IT IS NO ANSWER TO SAY THAT OBSCENE BOOKS ARE CONTRABAND, AND THAT
CONSEQUENTLY THE STANDARDS GOVERNING SEARCHES AND SEIZURES OF ALLEGEDLY
OBSCENE BOOKS SHOULD NOT DIFFER FROM THOSE APPLIED WITH RESPECT TO
NARCOTICS, GAMBLING PARAPHERNALIA AND OTHER CONTRABAND.  WE REJECTED
THAT PROPOSITION IN MARCUS.  WE SAID, 367 U.S., AT 730-731: 

"THE MISSOURI SUPREME COURT'S ASSIMILATION OF OBSCENE LITERATURE TO
GAMBLING PARAPHERNALIA OR OTHER CONTRABAND FOR PURPOSES OF SEARCH AND
SEIZURE DOES NOT THEREFORE ANSWER THE APPELLANTS' CONSTITUTIONAL CLAIM,
BUT MERELY RESTATES THE ISSUE WHETHER OBSCENITY MAY BE TREATED IN THE
SAME WAY.  THE AUTHORITY TO THE POLICY OFFICERS UNDER THE WARRANTS
ISSUED IN THIS CASE, BROADLY TO SEIZE 'OBSCENE  ...  PUBLICATIONS,'
POSES PROBLEMS NOT RAISED BY THE WARRANTS TO SEIZE 'GAMBLING
IMPLEMENTS' AND 'ALL INTOXICATING LIQUORS' INVOLVED IN THE CASES CITED
BY THE MISSOURI SUPREME COURT.  334 S.W.2D, AT 125.  FOR THE USE OF
THESE WARRANTS IMPLICATES QUESTIONS WHETHER THE PROCEDURES LEADING TO
THEIR ISSUANCE AND SURROUNDING THEIR EXECUTION WERE ADEQUATE TO AVOID
SUPPRESSION OF CONSTITUTIONALLY PROTECTED PUBLICATIONS.  '  ...  THE
LINE BETWEEN SPEECH UNCONDITIONALLY GUARANTEED AND SPEECH WHICH MAY
LEGITIMATELY BE REGULATED, SUPPRESSED, OR PUNISHED IS FINELY DRAWN  ...
.  THE SEPARATION OF LEGITIMATE FROM ILLEGITIMATE SPEECH CALLS FOR
... SENSITIVE TOOLS  ...  .'  SPEISER V. RANDALL, 357 U.S. 513, 525. 
IT FOLLOWS THAT, UNDER THE FOURTEENTH AMENDMENT, A STATE IS NOT FREE TO
ADOPT WHATEVER PROCEDURES IT PLEASES FOR DEALING WITH OBSCENITY AS HERE
INVOLVED WITHOUT REGARD TO THE POSSIBLE CONSEQUENCES FOR
CONSTITUTIONALLY PROTECTED SPEECH." 

SEE ALSO SMITH V. CALIFORNIA, 361 U.S. 147, 152-153. 

NOR IS THE ORDER UNDER REVIEW SAVED BECAUSE, AFTER ALL 1,715 COPIES
WERE SEIZED AND REMOVED FROM CIRCULATION, P-K NEWS SERVICE WAS AFFORDED
A FULL HEARING ON THE QUESTION OF THE OBSCENITY OF THE NOVELS.  FOR IF
SEIZURE OF BOOKS PRECEDES AN ADVERSARY DETERMINATION OF THEIR
OBSCENITY, THERE IS DANGER OF ABRIDGMENT OF THE RIGHT OF THE PUBLIC IN
A FREE SOCIETY TO UNOBSTRUCTED CIRCULATION OF NONOBSCENE BOOKS.  BANTAM
BOOKS V. SULLIVAN, SUPRA; ROTH V. UNITED STATES, 354 U.S. 476; MARCUS
V. SEARCH WARRANT, SUPRA; SMITH V. CALIFORNIA, SUPRA.  HERE, AS IN
MARCUS, "SINCE A VIOLATION OF THE FOURTEENTH AMENDMENT INFECTED THE
PROCEEDINGS, IN ORDER TO VINDICATE APPELLANTS' CONSTITUTIONAL RIGHTS"
367 U.S., AT 738, THE JUDGMENT RESTING ON A FINDING OF OBSCENITY MUST
BE REVERSED.  REVERSED. 

FN1  THE STATUTE IS KAN. GEN. STAT. SEC 21-1102 ET SEQ. (SUPP.
1961).  SECTION 1 OF KAN.  LAWS 1961, C. 186 (SEC 21-1102), CONSTITUTES
THE SELLING OR DISTRIBUTION OF OBSCENE MATERIALS (OBSCENITY IS DEFINED
IN SEC 1(B)) A CRIMINAL MISDEMEANOR PUNISHABLE BY FINE OR IMPRISONMENT
OR BOTH.  SECTION 4 (SEC 21-1102C) PROVIDES FOR THE SEARCH AND SEIZURE
PROCEDURE HERE INVOLVED: 

"WHENEVER ANY DISTRICT, COUNTY, COMMON PLEAS, OR CITY COURT JUDGE OR
JUSTICE OF THE PEACE SHALL RECEIVE AN INFORMATION OR COMPLAINT, SIGNED
AND VERIFIED UPON INFORMATION AND BELIEF BY THE COUNTY ATTORNEY OR THE
ATTORNEY GENERAL, STATING THERE IS ANY PROHIBITED LEWD, LASCIVIOUS OR
OBSCENE BOOK, MAGAZINE, NEWSPAPER, WRITING, PAMPHLET, BALLAD, PRINTED
PAPER, PRINT, PICTURE, MOTION PICTURES, DRAWING, PHOTOGRAPH,
PUBLICATION OR OTHER THING, AS SET OUT IN SECTION 1(21-1102)(A) OF THIS
ACT, LOCATED WITHIN HIS COUNTY, IT SHALL BE THE DUTY OF SUCH JUDGE TO
FORTHWITH ISSUE HIS SEARCH WARRANT DIRECTED TO THE SHERIFF OR ANY OTHER
DULY CONSTITUTED PEACE OFFICER TO SEIZE AND BRING BEFORE SAID JUDGE OR
JUSTICE SUCH A PROHIBITED ITEM OR ITEMS.  ANY PEACE OFFICER SEIZING
SUCH ITEM OR ITMES AS HEREINBEFORE DESCRIBED SHALL LEAVE A COPY OF SUCH
WARRANT WITH ANY MANAGER, SERVANT, EMPLOYEE OR OTHER PERSON APPEARING
OR ACTING IN THE CAPACITY OF EXERCISING ANY CONTROL OVER THE PREMISES
WHERE SUCH ITEM OR ITEMS ARE FOUND OR, IF NO PERSON IS THERE FOUND,
SUCH WARRANT MAY BE POSTED BY SAID PEACE OFFICER IN A CONSPICUOUS PLACE
UPON THE PREMISES WHERE FOUND AND SAID WARRANT SHALL SERVE AS NOTICE TO
ALL INTERESTED PERSONS OF A HEARING TO BE HAD AT A TIME NOT LESS THAN
TEN (10) DAYS AFTER SUCH SEIZURE.  AT SUCH HEARING, THE JUDGE OR
JUSTICE ISSUING THE WARRANT SHALL DETERMINE WHETHER OR NOT THE ITEM OR
ITEMS SO SEIZED AND BROUGHT BEFORE HIM PURSUANT TO SAID WARRANT WERE
KEPT UPON THE PREMISES WHERE FOUND IN VIOLATION OF ANY OF THE
PROVISIONS OF THIS ACT.  IF HE SHALL SO FIND, HE SHALL ORDER SUCH ITEM
OR ITEMS TO BE DESTROYED BY THE SHERIFF OR ANY DULY CONSTITUTED PEACE
OFFICER BY BURNING OR OTHERWISE, AT SUCH TIME AS SUCH JUDGE SHALL
ORDER, AND SATISFACTORY RETURN THEREOF MADE TO HIM:  PROVIDED, HOWEVER,
SUCH ITEM OR ITEMS SHALL NOT BE DESTROYED SO LONG AS THEY MAY BE NEEDED
AS EVIDENCE IN ANY CRIMINAL PROSECTION." 

FN2  P-K NEWS SERVICE ALSO ASSERTS THAT ITS CONSTITUTIONAL RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES WAS VIOLATED.  THE RESULT
HERE MAKES IT UNNECESSARY TO PASS UPON THIS CONTENTION.    OPINION OF
MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS. 

THE KANSAS STATE COURT JUDGMENT HERE UNDER REVIEW ORDERS THAT 1,715
COPIES OF 31 NOVELS BE BURNED OR OTHERWISE DESTROYED.  THIS BOOK
BURNING JUDGMENT WAS BASED UPON FINDINGS BY THE TRIAL JUDGE THAT "THE
CORE  OF THE BOOKS WOULD SEEM TO BE THAT OF SEX, WITH THE PLOT, IF ANY,
BEING SUBSERVIENT THERETO," THAT THE "DOMINANT PURPOSE OF THE BOOKS WAS
CALCULATED TO EFFECTIVELY INCITE SEXUAL DESIRES" AND THAT "THEY WOULD
HAVE THIS EFFECT ON THE AVERAGE PERSON RESIDING IN THIS COMMUNITY  ...
."  RELYING ON THESE FINDINGS AND THIS COURT'S HOLDING IN ROTH V.
UNITED STATES, 354 U.S. 476, THE TRIAL COURT HELD THAT THE BOOKS "ARE
NOT ENTITLED TO THE  ...  PROTECTION" OF THE FIRST AMENDMENT TO THE
CONSTITUTION.  THE STATE SUPREME COURT AFFIRMED ON THE SAME GROUNDS. 

THIS COURT NOW REVERSES.  I CONCUR IN THE JUDGMENT OF REVERSAL BUT DO
NOT FIND IT NECESSARY TO CONSIDER THE PROCEDURAL QUESTIONS.  COMPARE
MARCUS V. SEARCH WARRANT, 367 U.S. 717, 738 (CONCURRING OPINION).  THE
KANSAS COURTS MAY HAVE BEEN RIGHT TO RELY UPON THE COURT'S ROTH HOLDING
IN ORDERING THESE BOOKS BURNED OR OTHERWISE DESTROYED.  FOR REASONS
STATED IN THE ROTH CASE IN A DISSENT BY MR. JUSTICE DOUGALS, 354 U.S.,
AT 508, IN WHICH I JOINED, I THINK THE ROTH CASE WAS WRONGLY DECIDED. 
IT IS MY BELIEF, AS STATED IN THAT DISSENT BY MR. JUSTICE DOUGLAS, IN
MY CONCURRING OPINIONS IN SMITH V. CALIFORNIA, 361 U.S. 147, 155, AND
KINGSLEY INTERNATIONAL PICTURES CORP. V. REGENTS, 360 U.S. 684, 690,
AND IN MY DISSENT IN BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 267, WHICH
MR. JUSTICE DOUGLAS JOINED, THAT THE KANSAS STATUTE ORDERING THE
BURNING OF THESE BOOKS IS IN PLAIN VIOLATION OF THE UNEQUIVOCAL
PROHIBITION OF THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY
THE FOURTEENTH AGAINST "ABRIDGING THE FREEDOM OF SPEECH, OR OF THE
PRESS." 

BECAUSE OF MY BELIEF THAT BOTH ROTH AND BEAUHARNAIS DRAW BLUEPRINTS
SHOWING HOW TO AVOID THE FIRST AMENDMENT'S GUARANTEE OF FREEDOMS OF
SPEECH AND PRESS, I WOULD OVERRULE BOTH THOSE CASES AS WELL AS REVERSE
THE JUDGMENT HERE. 

MR. JUSTICE STEWART, CONCURRING IN THE JUDGMENT. 

IF THIS CASE INVOLVED HARD-CORE PORNOGRAPHY, I THINK THE PROCEDURES
WHICH WERE FOLLOWED WOULD BE CONSTITUTIONALLY VALID, AT LEAST WITH
RESPECT TO THE MATERIAL WHICH THE JUDGE "SCRUTINIZED."  THIS CASE IS
NOT LIKE MARCUS V. SEARCH WARRANT, 367 U.S. 717, WHERE, AS THE COURT
NOTES, "THE WARRANT GAVE THE POLICE VIRTUALLY UNLIMITED AUTHORITY TO
SEIZE ANY PUBLICATIONS WHICH THEY CONSIDERED TO BE OBSCENE, AND WAS
ISSUED ON A VERIFIED COMPLAINT LACKING ANY SPECIFIC DESCRIPTION OF THE
PUBLICATIONS TO BE SEIZED, AND WITHOUT PRIOR SUBMISSION OF ANY
PUBLICATIONS WHATEVER TO THE JUDGE ISSUING THE WARRANT," P. 209, SUPRA.
BUT THE BOOKS HERE INVOLVED WERE NOT HARD-CORE PORNOGRAPHY. 
THEREFORE, I THINK KANSAS COULD NOT BY ANY PROCEDURE CONSTITUTIONALLY
SUPPRESS THEM, ANY MORE THAN KANSAS COULD CONSTITUTIONALLY MAKE THEIR
SALE OR DISTRIBUTION A CRIMINAL ACT.  SEE JACOBELLIS V. OHIO, ANTE, P.
197.  (STEWART, J., CONCURRING). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

INSOFAR AS THE JUDGMENT OF THE COURT RESTS ON THE VIEW OF THREE OF MY
BRETHREN THAT A STATE CANNOT CONSTITUTIONALLY BAN ON GROUNDS OF
OBSCENITY THE BOOKS INV0LVED IN THIS CASE, I DISSENT ON THE BASIS OF
THE VIEWS SET OUT IN MY OPINION IN JACOBELLIS V. OHIO, ANTE, P. 203. 
IT IS QUITE PLAIN THAT THESE SO-CALLED "NOVELS" HAVE "BEEN REASONABLY
FOUND IN STATE JUDICIAL PROCEEDINGS TO TREAT WITH SEX IN A
FUNDAMENTALLY OFFENSIVE MANNER" AND THAT THE STATE'S CRITERIA FOR
JUDGING THEIR OBSCENITY ARE RATIONAL. 

I ALSO DISAGREE WITH THE POSITION TAKEN IN THE OPINION OF MY BROTHER
BRENNAN THAT THIS KANSAS PROCEDURE UNCONSTITUTIONALLY ABRIDGED FREEDOM
OF EXPRESSION IN THAT THE SEARCH WARRANT (1) AUTHORIZED SEIZURE OF ALL
COPIES OF THE BOOKS IN QUESTION AND (2) WAS ISSUED WITHOUT AN ADVERSARY
HEARING ON THE ISSUE OF THEIR OBSCENENESS.  IN MY OPINION THAT POSITION
IS INCONSISTENT WITH THE THRUST OF PRIOR CASES AND SERVES UNNECESSARILY
TO HANDICAP THE STATES IN THEIR EFFORTS TO CURB THE DISSEMINATION OF
OBSCENE MATERIAL.  (FN1)

             I. 

THE TWO CASES ON WHICH MR. JUSTICE BRENNAN'S OPINION ALMOST ENTIRELY
RELIES ARE KINGSLEY BOOKS, INC., V. BROWN, 354 U.S. 436, AND MARCUS V.
SEARCH WARRANT, 367 U.S. 717. 

IN KINGSLEY BOOKS, APPELLANTS CHALLENGED THE CONSTITUTIONALITY OF A
NEW YORK STATUTE THAT AUTHORIZED THE STATE SUPREME COURT TO ENJOIN THE
SALE AND DISTRIBUTION OF OBSCENE PRINTS AND ARTICLES.  A COMPLAINT
PRAYED FOR AN INJUNCTION AGAINST THE FURTHER DISTRIBUTION OF CERTAIN
ALLEGEDLY OBSCENE PAPERBACK BOOKS AND FOR THE DESTRUCTION BY THE
SHERIFF OF ALL COPIES IN THE APPELLANTS' POSSESSION.  APPELLANTS WERE
ORDERED TO SHOW CAUSE WITHIN FOUR DAYS WHY AN INJUNCTION PENDENTE LITE
SHOULD NOT BE ISSUED THAT WOULD PRECLUDE DISTRIBUTION OF THE BOOKS. 
ALTHOUGH THE CODE OF CRIMINAL PROCEDURE PROVIDED THAT ANYONE SOUGHT TO
BE ENJOINED WAS ENTITLED TO A TRIAL ONE DAY AFTER THE JOINDER OF ISSUE,
APPELLANTS CONSENTED TO THE TEMPORARY INJUNCTION AND DELAYED BRINGING
THE MATTER TO ISSUE.  WHEN A HEARING ON THE QUESTION OF OBSCENITY WAS
FINALLY HAD, THE BOOKS WERE FOUND TO BE OBSCENE; THEIR DISTRIBUTION WAS
ENJOINED AND THEIR DESTRUCTION ORDERED.  THIS COURT UPHELD THE NEW YORK
PROCEDURE, STATING: 

"AUTHORIZATION OF AN INJUNCTION PENDENTE LITE, AS PART OF THIS
SCHEME, DURING THE PERIOD WITHIN WHICH THE ISSUE OF OBSCENITY MUST BE
PROMPTLY TRIED AND ADJUDICATED IN AN ADVERSARY PROCEEDING FOR WHICH
'ADEQUATE NOTICE, JUDICIAL HEARING, AND FAIR DETERMINATION' ARE
ASSURED,  ...  IS A SAFEGUARD AGAINST FRUSTRATION OF THE PUBLIC
INTEREST IN EFFECTUATING JUDICIAL CONDEMNATION OF OBSCENE MATTER."   P.
440. 

THE STATE WAS NOT, WE HELD, LIMITED TO THE CRIMINAL PROCESS IN
ATTEMPTING TO PROTECT ITS CITIZENS AGAINST THE CIRCULATION OF
PORNOGRAPHY; IT "IS NOT FOR THIS COURT THUS TO LIMIT THE STATE IN
RESORTING TO VARIOUS WEAPONS IN THE ARMORY OF THE LAW."  P. 441.  THE
COURT POINTED OUT THAT "CRIMINAL ENFORCEMENT AND THE PROCEEDING UNDER
SEC 22-A INTERFERE WITH A BOOK'S SOLICITATION OF THE PUBLIC PRECISELY
AT THE SAME STAGE," P. 442, THAT THE THREAT OF CRIMINAL PENALTIES MAY
BE AS EFFECTIVE A DETERENT AGAINST EXPRESSION AS AN INJUNCTIVE CIVIL
REMEDY, AND THAT AN INJUNCTION AGAINST SOMEONE TO FORBEAR SELLING
SPECIFIC BOOKS MAY BE A LESS STRINGENT RESTRAINT ON HIS FREEDOM OF
EXPRESSION THAN SENDING HIM TO JAIL.  NEAR V. MINNESOTA, 283 U.S. 697,
WAS DISTINGUISHED ON THE GROUND THAT THE NEW YORK STATUTE DEALT WITH
OBSCENITY RATHER THAN MATTERS DEEMED TO BE DEROGATORY TO A PUBLIC
OFFICER AND IMPOSED NO DIRECT RESTRAINT ON MATERIALS NOT YET
PUBLISHED. 

IN MARCUS V. SEARCH WARRANT WARRANTS TO SEIZE BOOKS WERE ISSUED
SOLELY ON THE JUDGMENT OF A PEACE OFFICER REGARDING THE OBSCENITY OF
CERTAIN BOOKS WITHOUT ANY INDEPENDENT EXAMINATION BY A JUDICIAL
OFFICIAL; THE WARRANTS AUTHORIZED SEIZURE OF BOOKS BY OFFICERS OTHER
THAN THE ONE WHO HAD SIGNED THE COMPLAINTS AND IN EFFECT GAVE CARTE
BLANCHE TO THESE OFFICERS TO SEIZE ANYTHING THEY CONSIDERED OBSCENE AT
THE NAMED WHOLESALE ESTABLISHMENT AND NEWSSTANDS, WHETHER OR NOT THE
MATERIAL HAD BEEN SO EVALUATED BY ANYONE PRIOR TO THE ISSUANCE OF THE
WARRANTS.  AFTER RECOUNTING THE HISTORICAL DISTRUST FOR SYSTEMS
SANCTIONING SWEEPING SEIZURES OF MATERIALS BELIEVED TO BE OFFENSIVE TO
THE STATE, THE COURT HELD THAT "MISSOURI'S PROCEDURES AS APPLIED IN
THIS CASE LACKED THE SAFEGUARDS WHICH DUE PROCESS DEMANDS TO ASSURE
NONOBSCENE MATERIAL THE CONSTITUTIONAL PROTECTION TO WHICH IT IS
ENTITLED."  P. 731.  RELEVANT TO THIS CONCLUSION WERE THE ABSENCE OF
ANY "SCRUTINY BY THE JUDGE OF ANY MATERIALS CONSIDERED BY THE
COMPLAINANT TO BE OBSCENE," P. 732, AND THE POWER OF THE ENFORCING
OFFICERS UNDER THE WARRANTS TO MAKE AD HOC DECISIONS REGARDING
OBSCENITY ALTHOUGH "THEY WERE PROVIDED WITH NO GUIDE TO THE EXERCISE OF
INFORMED DISCRETION, BECAUSE THERE WAS NO STEP IN THE PROCEDURE BEFORE
SEIZURE DESIGNED TO FOCUS SEARCHINGLY ON THE QUESTION OF OBSCENITY." 
P. 732.  KINGSLEY BOOKS WAS DISTINGUISHED ON THE GROUNDS THAT IN THAT
CASE:  (1) THE COURT "COULD EXERCISE AN INDEPENDENT CHECK ON THE
JUDGMENT OF THE PROSECUTING AUTHORITY AT A POINT BEFORE ANY RESTRAINT
TOOK PLACE"; (2) THE RESTRAINTS "RAN ONLY AGAINST THE NAMED
PUBLICATION"; (3) NO EXTENSIVE RESTRAINTS WERE IMPOSED BEFORE AN
ADVERSARY PROCEEDING; AND (4) THE NEW YORK CODE REQUIRED DECISION
WITHIN TWO DAYS OF THE TRIAL ON THE OBSCENITY QUESTION, PP. 735-737. 

IN MY VIEW, THE PRESENT CASE IS GOVERNED BY THE PRINCIPLES SERVING TO
SUSTAIN THE NEW YORK PROCEDURE INVOLVED IN KINGSLEY BOOKS RATHER THAN
THOSE WHICH CONDEMNED THAT FOLLOWED BY MISSOURI IN MARCUS. 

(1)  ALTHOUGH THE KANSAS STATUTE DOES NOT IN TERMS REQUIRE AN
INDEPENDENT JUDICIAL EXAMINATION OF ALLEGEDLY OBSCENE MATERIALS BEFORE
AUTHORIZATION OF SEIZURE, THE KANSAS OFFICIALS IN THIS CASE CONFIRMED
THEIR PROCEDURES TO WHAT THEY BELIEVED TO BE THE REQUIREMENTS OF
MARCUS.  THE INFORMATION INCLUDED THE TITLES OF 59 "ORIGINAL NIGHTSTAND
BOOKS."  SEVEN OF THESE WERE DELIVERED TO THE DISTRICT JUDGE AT 5 P.M.,
THREE HOURS BEFORE THE 45-MINUTE EX PARTE HEARING AT WHICH THE JUDGE
CONCLUDED THAT THERE WERE REASONABLE GROUNDS TO BELIEVE THAT ALL 59
BOOKS WERE OBSCENE.  (FN2) BECAUSE OF THE NATURE OF THE SEVEN BOOKS
EXAMINED BY THE JUDGE, HE COULD FAIRLY REACH A JUDGMENT THAT THE
REMAINING BOOKS WERE OF THE SAME CHARACTER.  (FN3)  (SEE NOTE 1,
SUPRA.) 

(2)  IN THIS CASE, UNLIKE MARCUS, THE OFFICERS HAD NO DISCRETION AS
TO WHICH BOOKS THEY MIGHT SEIZE BUT COULD TAKE ONLY BOOKS SPECIFICALLY
DESIGNATED BY THEIR TITLES. 

(3)  IT IS TRUE THAT THE KANSAS PROCEDURE, LIKE THAT IN MARCUS,
IMPOSED A RESTRAINT BEFORE AN ADVERSARY PROCEEDING, BUT IT WOULD BE
HIGHLY ARTIFICIAL TO CONSIDER THIS THE CONTROLLING DIFFERENCE BETWEEN
KINGSLEY BOOKS AND MARCUS.  WHILE THE NEW YORK STATUTE ALLOWS AN ALMOST
IMMEDIATE HEARING ON THE OBSCENITY ISSUE, IT WOULD BE UNREALISTIC TO
SUPPOSE THAT MOST PERSONS WHO ALLEGEDLY HAVE OR SELL OBSCENE MATERIALS
WILL BE ABLE TO PREPARE FOR SUCH A HEARING IN FOUR DAYS, THE TIME
BETWEEN THE ISSUANCE OF THE COMPLAINT AND THE PENDENTE LITE INJUNCTION
IN KINGSLEY BOOKS.  IN PRACTICAL TERMS, THEREFORE, THE NEW YORK SCHEME,
AS APPROVED BY THIS COURT, DOES CONTEMPLATE RESTRAINT BEFORE A HEARING
ON THE MERITS.  ALTHOUGH THE COURT WAS UNCERTAIN IN KINGSLEY BOOKS
WHETHER NEW YORK WOULD PUNISH FOR CONTEMPT ONE WHO DISSEMINATED
MATERIALS IN DISOBEDIENCE OF THE TEMPORARY INJUNCTION IF SUCH MATERIALS
WERE ULTIMATELY HELD TO BE NOT COVERED BY THE STATUTE OR
CONSTITUTIONALLY PROTECTED, IT COULD HARDLY HAVE FAILED TO RECOGNIZE
THE PATENTLY CHILLING EFFECT SUCH AN INJUNCTION WOULD HAVE ON THE
DISSEMINATION OF NAMED MATERIAL.  IN PRAGMATIC TERMS THEN, THE NATURE
OF THE RESTRAINT IMPOSED BY THE KANSAS STATUTE IS NOT IN A
CONSTITUTIONALLY SIGNIFICANT SENSE DIFFERENT FROM THAT SUSTAINED IN
KINGSLEY BOOKS.  (FN4) 

(4)  THE KANSAS STATUTE DOES NOT CONTAIN THE SAFEGURADS FOR SPEEDY
DISPOSITION THAT WERE PRESENT IN KINGSLEY BOOKS, BUT THE STATE ATTORNEY
GENERAL HAS UNEQUIVOCALLY ACKNOWLEDGED THE NECESSITY OF ADMINISTERING
THAT STATUTE IN LIGHT OF THE CONSTITUTIONAL REQUIREMENTS OF MARCUS.  IN
THIS INSTANCE THE WARRANT WHICH WAS ISSUED JULY 27 FOR SEIZURE OF THE
BOOKS CONTAINED A NOTICE THAT A HEARING ON THE MERITS WAS SET FOR
AUGUST 7.  ELEVEN DAYS IS CERTAINLY NOT AN UNDUE DELAY; INDEED, IT IS
DIFFICULT TO IMAGINE A DEFENSE BEING PREPARED IN LESS TIME.  THE
DISTRICT JUDGE'S DECISION WAS ISSUED FOUR DAYS AFTER THE TERMINATION OF
THE TRIAL ON THE OBSCENITY QUESTION, WHICH HAD BEEN POSTPONED BECAUSE
OF MOTIONS MADE BY APPELLANTS.  ON THE BASIS OF THIS CASE, WE HAVE
EVERY REASON TO BELIEVE THAT THE PROSECUTING AUTHORITIES AND JUDGES OF
KANSAS ARE AWARE THAT PREHEARING RESTRAINTS MAY NOT BE MAGNIFIED BY
DELAY AND WE HAVE NO REASON TO THINK THE KANSAS STATUTE WILL BE APPLIED
IN A MANNER ANY LESS FAIR IN THIS REGARD TO THOSE RESTRICTED THAN THE
PROVISION OF THE NEW YORK CODE SUSTAINED IN KINGSLEY BOOKS. 

                                     II. 

SINCE THERE MAY BE LURKING IN MY BROTHER BRENNAN'S OPINION THE
UNARTICULATE PREMISE THAT THIS KANSAS PROCEDURE IS IMPERMISSIBLE
BECAUSE IT OPERATES AS A "PRIOR RESTRAINT," I DEEM IT APPROPRIATE TO
MAKE A FEW OBSERVATIONS ON THAT SCORE.  THE DOCTRINE OF PRIOR RESTRAINT
IS NOT A "SELF-WIELDING SWORD" OR A "TALISMANIC TEST" (KINGSLEY BOOKS,
SUPRA, AT 441) BUT ONE WHOSE APPLICATION IN ANY INSTANCE REQUIRES
"PARTICULARISTIC ANALYSIS."  ID., AT 442; FREUND, THE SUPREME COURT AND
CIVIL LIVERTIES, 4 VAND.  L. REV. 533, 539; CF. TIME FILM CORP. V.
CHICAGO, 365 U.S. 43.  THAT THE KANSAS PROCEDURE, AS APPLIED IN THIS
CASE, FALLS WITHIN PERMISSIBLE LIMITS OF THE FOURTEENTH AMENDMENT WILL
APPEAR FROM CONTRASTING SOME OF THE REASONS FOR THE HISTORIC DISTRUST
IN COMMON LAW JURISPRUDENCE OF ANY KIND OF CENSORSHIP OF WRITINGS, SEE
NEAR V. MINNESOTA, 283 U.S. 697, 713-718, (FN5) WITH WHAT WAS DONE
HERE. 

IN THE TYPICAL CENSORSHIP SITUATION MATERIAL IS BROUGHT AS A MATTER
OF COURSE BEFORE SOME ADMINISTRATIVE AUTHORITY, WHO THEN DECIDES ON ITS
PROPRIETY.  THIS MEANS THAT THE STATE ESTABLISHES AN ADMINISTRATIVE
STRUCTURE WHEREBY ALL WRITINGS ARE REVIEWED BEFORE PUBLICATION.  BY
CONTRAST, IF THE STATE USES ITS PENAL SYSTEM TO PUNISH EXPRESSION
OUTSIDE PERMISSIBLE BOUNDS, THE STATE DOES NOT COMPREHENSIVELY REVIEW
ANY FORM OF EXPRESSION; IT MERELY CONSIDERS AFTER THE EVENT UTTERANCES
IT HAS REASON TO SUPPOSE MAY BE PROHIBITED.  THE BREADTH OF ITS REVIEW
OF EXPRESSION IS THEREFORE MUCH NARROWER AND THE DANGER THAT PROTECTED
EXPRESSION WILL BE REPRESSED IS LESS.  THE OPERATION OF THE KANSAS
STATUTE RESEMBLES THE OPERATION OF A PENAL RATHER THAN A LICENSING LAW
IN THIS REGARD SINCE BOOKS ARE NOT AS A MATTER OF COURSE SUBJECTED TO
PREPUBLICATION STATE SANCTIONING BUT ARE REVIEWED ONLY WHEN THE STATE
HAS REASON TO BELIEVE THEY ARE OBSCENE.    THERE ARE BUILT-IN ELEMENTS
IN ANY SYSTEM OF LICENSING OR CENSORSHIP, THE TENDENCY OF WHICH IS TO
ENCOURAGE RESTRICTIONS OF EXPRESSION.  THE STATE IS NOT COMPELLED TO
MAKE AN INITIAL DECISION TO PURSUE A COURT OF ACTION, SINCE THE
ORIGINAL BURDEN IS ON THE CITIZEN TO BRING A PIECE OF WRITING BEFORE
IT.  THE CENSOR IS A PART OF THE EXECUTIVE STRUCTURE, AND THERE IS AT
LEAST SOME DANGER THAT HE WILL DEVELOP AN INSTITUTIONALIZED BIAS IN
FAVOR OF CENSORSHIP BECAUSE OF HIS PARTICULAR RESPONSIBILITY.  IN A
CRIMINAL PROCEEDING, HOWEVER, THE BURDEN IS ON THE STATE TO ACT, THE
DECISION-MAKER BELONGS TO AN INDEPENDENT BRANCH OF THE GOVERNMENT, AND
NEITHER A JUDGE NOR A JUROR HAS ANY PERSONAL INTEREST IN ACTIVE
CENSORSHIP.  THE KANSAS PRACTICE IS THUS ANALOGOUS TO A SYSTEM OF PENAL
SANCTIONS RATHER THAN CENSORSHIP IN ALL THREE OF THESE RESPECTS. 

ONE DANGER OF A CENSORSHIP SYSTEM IS THAT THE PUBLIC MAY NEVER BE
AWARE OF WHAT AN ADMINISTRATIVE AGENT REFUSES TO PERMIT TO BE PUBLISHED
OR DISTRIBUTED.  A PENAL SANCTION ASSURES BOTH THAT SOME OVERT THING
HAS BEEN DONE BY THE ACCUSED AND THAT THE PENALTY IS IMPOSED FOR AN
ACTIVITY THAT IS NOT CONCEALED FROM THE PUBLIC.  IN THIS CASE, THE
INFORMATION CHARGED THAT OBSCENE BOOKS WERE POSSESSED OR KEPT FOR SALE
AND DISTRIBUTION; PRESUMABLY SUCH POSSESSION, IF KNOWING, COULD, AS A
CONSTITUTIONAL MATTER, SUPPORT A CRIMINAL PROSECUTION.  THE PROCEDURE
ADOPTED BY THE STATE ENVISIONS THAT A FULL JUDICIAL HEARING WILL BE
HELD ON THE OBSCENITY ISSUE.  FINALLY, THE FEDERAL SYSTEM MAKES IT
HIGHLY UNLIKELY THAT THE CITIZENRY OF ONE STATE WILL BE UNAWARE OF THE
KIND OF MATERIAL THAT IS BEING RESTRICTED BY ITS OWN GOVERNMENT WHEN
THERE IS GREAT DIVERGENCE AMONG THE POLICIES OF THE VARIOUS STATES AND
A HIGH DEGREE OF COMMUNICATION ACROSS STATE LINES.  CF.  MY OPINION IN
ROTH V. UNITED STATES, 354 U.S. 476, 496, AND MY DISSENTING OPINION IN
JACOBELLIS V. OHIO, ANTE, P. 203, DECIDED TODAY. 

ANY SYSTEM OF CENSORSHIP, INJUNCTION, OR SEIZURE MAY OF COURSE TO
SOME EXTENT SERVE TO TRAMMEL, BY DELAYING DISTRIBUTION OR OTHERWISE,
FREEDOM OF EXPRESSION; YET SO MAY THE THREAT OF CRIMINAL PROSECUTION,
AS THIS COURT NOTED IN KINGSLEY BOOKS.  THE BRINGING OF A CRIMINAL
CHARGE MAY RESULT IN A CESSATION OF DISTRIBUTION DURING LITIGATION,
SINCE EVEN AN ACCUSED RELATIVELY CONFIDENT OF THE UNLIKELIHOOD OR
IMPERMISSIBILITY OF CONVICTION MAY WELL REFUSE TO TAKE THE ADDED RISK
OF FURTHER CRIMINAL PENALTIES THAT MIGHT OBTAIN IF HE GUESSES WRONG AND
CONTINUES TO DISSEMINATE THE QUESTIONABLE MATERIALS.  MORE
FUNDAMENTALLY, THE DEALY ARGUMENT SEEMS ARTIFICIAL IN THE CONTEXT OF
THIS CASE AND IN THE AREA OF OBSCENITY GENERALLY.  BOTH THE INCENTIVE
FOR OFFICIALS TO PROMOTE DELAY AND THE ADVERSE CONSEQUENCES OF DELAY
ARE CONSIDERABLY LESS IN THIS AREA THAN IN THE FIELD OF POLITICAL AND
SOCIAL EXPRESSION.  IF CONTROVERSIAL POLITICAL WRITINGS ATTACK THOSE IN
POWER, GOVERNMENT OFFICIALS MAY BENEFIT FROM SUPPRESSION ALTHOUGH
SOCIETY MAY SUFFER.  IN THE AREA OF OBSCENITY, THERE IS LESS CHANCE
THAT DECISION-MAKERS WILL HAVE INTERESTS WHICH MAY AFFECT THEIR
ESTIMATE OF WHAT IS CONSTITUTIONALLY PROTECTED AND WHAT IS NOT.  IT IS
VITAL TO THE OPERATION OF DEMOCRATIC GOVERNMENT THAT THE CITIZENS HAVE
FACTS AND IDEAS ON IMPORTANT ISSUES BEFORE THEM.  A DELAY OF EVEN A DAY
OR TWO MAY BE OF CRUCIAL IMPORTANCE IN SOME INSTANCES.  ON THE OTHER
HAND, THE SUBJECT OF SEX IS OF CONSTANT BUT RARELY PARTICULARLY TOPICAL
INTEREST.  (FN6)  DISTRIBUTION OF ULYSSES MAY BE THOUGHT BY SOME TO BE
MORE IMPORTANT FOR SOCIETY THAN DISTRIBUTION OF THE DAILY NEWSPAPER,
BUT A ONE- OR TWO-MONTH DELAY IN CIRCULATION OF THE FORMER WOULD BE OF
SMALL SIGNIFICANCE WHEREAS SUCH A DELAY MIGHT BE EFFECTIVE SUPPRESSION
OF THE LATTER. 

FINALLY, IT MAY BE SAID THAT ANY SYSTEM OF CIVIL ENFORCEMENT ALLOWS
EXPRESSION TO BE LIMITED WITHOUT THE STRICT SAFEGUARDS OF CRIMINAL
PROCEDURES AND RULES OF EVIDENCE.  THE CONTENTION THAT SUCH PROTECTIONS
ARE ESSENTIAL IS PERHAPS WEAKER IN THE AREA OF OBSCENITY THAN WITH
REGARD TO OTHER KINDS OF EXPRESSION FOR REASONS OUTLINED ABOVE.  A
SUBSTANTIAL RESTRICTION ON FREEDOM OF EXPRESSION IS UNDOUBTEDLY
PROVIDED BY CIVIL REMEDIES FOR DEFAMATION, AND THERE IS NO REASON FOR
FORECLOSING A STATE FROM REASONABLE CIVIL MEANS OF PREVENTING THE
DISTRIBUTION OF OBSCENE MATERIALS. 

THE OPINION OF MR. JUSTICE BRENNAN, IN MY VIEW, STRAITJACKETS THE
LEGITIMATE ATTEMPT OF KANSAS TO PROTECT WHAT IT CONSIDERS AN IMPORTANT
SOCIETAL INTEREST.  IT DOES SO IN CONTRADICTION OF A SENSIBLE READING
OF THE PRECEDENTS AND WITHOUT CONTRIBUTING IN ANY GENUINE WAY TO THE
FURTHERANCE OF FREEDOM OF EXPRESSION THAT OUR CONSTITUTION PROTECTS. 

FOR THE FOREGOING REASONS I WOULD AFFIRM THE JUDGMENT OF THE KANSAS
SUPREME COURT. 

FN1  THE BOOKS BEFORE THE DISTRICT JUDGE AT THE EX PARTE HEARING
WERE: 

THE SINNING SEASON     SIN SONG 

BACKSTAGE SINNER       THE WIFE-SWAPPERS 

LESBIAN LOVE           SEX CIRCUS 

SIN HOTEL 

THE FRONT COVER OF THE WIFE-SWAPPERS IS TYPICAL OF THE 31 BOOKS
SEIZED WHICH, WITH THE EXCEPTION OF BACKSTAGE SINNER, INCLUDED ALL
THOSE EXAMINED BY THE JUDGE.  ABOVE A HIGHLY SUGGESTIVE PICTORIAL
REPRESENTATION, THE PROSPECTIVE READER IS TOLD THAT "MEMBERS OF THIS
LUST CLUB HAD A DIFFERENT WOMAN EVERY NIGHT]"  AT THE BOTTOM OF THE
COVER IT IS STATED THAT "THIS IS AN ORIGINAL NIGHTSTAND BOOK."  THE
BACK COVER RELATES IN MORE DETAIL THE BOOK'S CONTENTS: 

"PROBLEMS IN BED  ...  WERE NO PROBLEMS AT ALL TO THE MEMBERS OF
EASTPORT'S HIGHLY SECRET SUBURBAN SWITCH CLUB.  WHO COULD HAVE PROBLEMS
WITH EIGHT BEAUTIFUL, DIFFERENT WOMEN TO CHOOSE FROM?  FOR THAT WAS THE
LOT OF EACH MAN IN THIS FANTASTIC SEX-PROWLING GROUP.  EIGHT OF THE
MOST LUSTY, PASSIONATE WOMEN IN THE TOWN, EACH WITH HER DIFFERENT
DESIRES, HER PECULIAR SEX HABITS.  AND WITH EIGHT WOMEN SO EASY TO
REACH, IT WAS INEVITABLE THAT THERE WOULD BE TROUBLE  ...  FOR THE
WIVES WERE VERY DIFFERENT:  ONE WAS A LESBIAN, ONE WAS A NYMPHOMANIAC,
ONE A MASOCHIST, ANOTHER FRIGID, AND STILL ANOTHER ERUPTING LIKE A BOMB
AT THE MERE TOUCH OF A MAN.  THEY LIVED A LUST-RIDDEN, LIGHTNING-FAST,
TERRIFYING AND SEX-CRAMMED  ...  GAME OF WIFE-SWAPPING]" 

THE FRONT PAGE OF THE BOOK CONTAINS THE FOLLOWING:

                                     "LUST-SATED COUPLES 

"IN EIGHT EASTPORT HOMES THE DOORS OPENED AND EIGHT HUSBANDS
RETURNED.  IT'S TRADITIONAL IN SUBURBIA FOR THE GOOD WIFE TO MEET HER
SPOUSE WITH A SHAKER OF MARTINIS, BUT IT WAS DIFFERENT WITH THESE EIGHT
PARTICULAR EASTPORT COUPLES.  THESE EIGHT HUSBANDS CAME HOME ON A
SUNDAY MORNING AND THEIR EIGHT WIVES WERE WAITING IN BED, SOFT AND WARM
AND SATED  ...  SMELLING OF OTHER MEN.  AND THE HUSBANDS WERE DRAINED
AND TIRED  ...  FROM OTHER WOMEN.  LATER IN THE DAY THEY WOULD ALL
AWAKE, LOUNGE AROUND THE HOUSE, EAT LIGHTLY, SPEAK SOFTLY  ...  AND
THINK OF THE NIGHT BEFORE  ...  : 

"THESE EIGHT COUPLES ARE 

MEMBERS OF A WIFE-SWAPPING 

MATE-SWITCHING SEX CLUB 

SO VILE IT WILL STUN YOU." 

THESE INDUCEMENTS ARE A FAIR INDICATION OF THE ACTUAL CONTENTS OF THE
BOOK.  THE BOOK'S BACK PAGE ADVERTISES THE TITLES OF SOME OTHER
NIGHTSTAND BOOKS.  THE OTHER BOOKS SEIZED WERE: 

BORN FOR SIN          ISLE OF SIN 

NO LONGER A VIRGIN    ORGY TOWN 

SIN GIRLS             LOVER 

MIAMI CALL GIRL       SEX SPY 

PASSION TRAP          TRAILER TROLLOP 

SEX JUNGLE            SIN CRUISE 

THE LUSTFUL ONES      FLESH IS MY UNDOING 

SEX MODEL             MALAY MISTRESS 

THE LECHER            LOVE NEST 

LUST GODDESS      SEEDS OF SIN 

SIN CAMP              PASSION SLAVE 

$20 LUST              THE SINFUL ONES 

CONVENTION GIRL 

EACH OF THE SEIZED BOOKS CONTAINS EXACTLY 192 PAGES, THE TEXT IN EACH
RUNNING FROM PAGE 5 TO PAGES 189, 190, 191, OR 192. 

FN2  THE RECORD DOES NOT SHOW HOW MUCH ATTENTION THE JUDGE GAVE TO
THESE BOOKS BEFORE THE HEARING. 

FN3  NO ONE HAS ASSERTED THAT ANY OF THESE BOOKS HAS LITERARY MERIT. 
THE DISTRICT JUDGE CONTRASTED THEM TO BOOKS IN WHICH SEX IS SUBSERVIENT
TO THE PLOT:  "IN THE BOOKS IN QUESTION, THE CORE WOULD SEEM TO BE THAT
OF SEX, WITH THE PLOT, IF ANY, BEING SUBSERVIENT THERETO."  THE STATE
SUPREME COURT, MORE SUCCINCTLY, BUT WITH EQUAL TRUTH, STATED, "THEY ARE
TRASH."  THE ESSENCE OF THESE BOOKS MAY BE ASCERTAINED WITH GREAT
CELERITY, SO REPLETE ARE THEY WITH PASSAGES DESCRIPTIVE OF SEXUAL
ACTIVITIES RUNNING THE GAMUT FROM ORDINARY INTERCOURSE TO LESBIANISM,
SADISM, PUBLIC DISPLAYS, AND GROUP ORGIES, AND SO LACKING ARE THEY OF
ANY OTHER CONTENT.  MOREOVER, THEY ARE SO STANDARDIZED THAT A JUDGE'S
ESTIMATE CONCERNING THE CONTENTS OF ABSENT BOOKS FROM AN EXAMINATION OF
SEVEN BOOKS BEFORE HIM COULD BE ALMOST AS SUREFIRE AS A SIMILAR
ESTIMATE OF THE CHARACTER OF UNSEEN MICKEY MOUSE COMIC BOOKS BASED ON A
PERUSAL OF SEVEN ISSUES. 

FN4  WHAT THE COURTS OF THE STATE HAVE SUBSEQUENTLY SAID IN DICTUM
ABOUT THE OPERATION OF THE NEW YORK STATUTE IS HARDLY RELEVANT TO THIS
COURT'S UNDERSTANDING OF THE IMPORT OF THE SECTION AT THE TIME OF
KINGSLEY BOOKS, AND THE CONSTITUTIONAL PRINCIPLE FOR WHICH THAT CASE
STANDS.  AT ANY RATE, TENNEY V. LIBERTY NEWS DISTRIBUTORS, 13 APP. DIV.
2D 770, 215 N.Y.S.2D 663, STATES ONLY THAT AN INJUNCTION CANNOT BE
ISSUED EX PARTE; THIS CERTAINLY DOES NOT MEAN THAT A COURT IS FORBIDDEN
TO DO WHAT IT DID IN KINGSLEY BOOKS, GRANT AN INJUNCTION BEFORE THERE
IS AN ADVERSARY HEARING ON THE OBSCENITY ISSUE ITSELF.  SURELY THE
RIGHT TO BE HEARD ON THE SUBSIDIARY QUESTION OF THE WISDOM OF GRANTING
A PENDENTE LITE INJUNCTION WOULD NOT SAVE AN OTHERWISE UNCONSTITUTIONAL
SCHEME; AND THE FAILURE TO ACCORD SUCH A RIGHT DOES NOT RENDER THE
KANSAS PROCEDURE UNCONSTITUTIONAL IF IT IS OTHERWISE VALID. 

FN5  SEE GENERALLY, E.G., EMERSON, THE DOCTRINE OF PRIOR RESTRAINT,
20 LAW AND CONTEMP.  PROB.  648 (1955); FREUND, THE SUPREME COURT AND
CIVIL LIBERTIES, 4 VAND.  L. REV. 533, 537-545 (1951). 

FN6  REASONS SUCH AS THESE MAY EXPLAIN IN PART WHY THE COURT IN NEAR
V. MINNESOTA, 283 U.S. 697, 716, APPARENTLY BELIEVED THAT THE WHOLE
PRIOR RESTRAINT DOCTRINE WAS INAPPLICABLE IN THE AREA OF OBSCENITY. 
..END :










BELL V. MARYLAND 378 U.S. 226 


NO. 12.  ARGUED OCTOBER 14-15, 1963.  - DECIDED JUNE 22, 1964.  - 227
MD. 302, 176 A.2D 771, VACATED, REVERSED, AND REMANDED. 


PETITIONERS, NEGRO "SIT-IN" DEMONSTRATORS, WERE ASKED TO LEAVE A
BALTIMORE RESTAURANT SOLELY BECAUSE OF THEIR RACE, REFUSED TO DO SO,
AND WERE CONVICTED OF VIOLATING MARYLAND'S CRIMINAL TRESPASS LAW.  THE
CONVICTIONS WERE AFFIRMED BY THE HIGHEST STATE COURT.  SUBSEQUENT TO
THAT AFFIRMANCE, AND PRIOR TO DISPOSITION OF THE CASE ON WRIT OF
CERTIORARI IN THIS COURT, THE CITY OF BALTIMORE AND THE STATE OF
MARYLAND ENACTED "PUBLIC ACCOMMODATIONS" LAWS, APPLICABLE TO BALTIMORE,
MAKING IT UNLAWFUL FOR RESTAURANTS TO DENY THEIR SERVICES TO ANY PERSON
BECAUSE OF HIS RACE.  HELD: THE JUDGMENTS OF THE MARYLAND COURT OF
APPEALS ARE VACATED AND REVERSED AND THE CASE IS REMANDED TO THAT
COURT, SO THAT IT MAY CONSIDER WHETHER THE CONVICTIONS SHOULD BE
NULLIFIED IN VIEW OF THE SUPERVENING CHANGE IN STATE LAW.  PP. 227
242. 

(A)  THE EFFECT OF THE PUBLIC ACCOMMODATIONS LAWS APPEARS TO BE THAT
PETITIONERS' CONDUCT IN REFUSING TO LEAVE THE RESTAURANT AFTER BEING
ASKED TO DO SO BECAUSE OF THEIR RACE WOULD NOT BE A CRIME TODAY; THAT
CONDUCT IS NOW RECOGNIZED AS THE EXERCISE OF A RIGHT, AND THE LAW'S
PROHIBITION IS DIRECTED NOT AT THEM BUT AT THE RESTAURANT PROPRIETOR
WHO WOULD DENY THEM SERVICE BECAUSE OF THEIR RACE.  P. 230. 

(B)  THE COMMON-LAW RULE, FOLLOWED IN MARYLAND, REQUIRES THE
DISMISSAL OF PENDING CRIMINAL PROCEEDINGS CHARGING CONDUCT WHICH,
BECAUSE OF A SUPERVENING CHANGE IN STATE LAW, IS NO LONGER DEEMED
CRIMINAL; THAT RULE WOULD APPARENTLY APPLY TO THIS CASE, WHICH WAS
PENDING IN THIS COURT AT THE TIME OF THE SUPERVENING LEGISLATION.  PP.
230-232. 

(C)  ALTHOUGH MARYLAND HAS A "SAVING CLAUSE" STATUTE WHICH IN CERTAIN
CIRCUMSTANCES SAVES STATE CONVICTIONS FROM THE EFFECT OF THAT RULE,
THERE IS REASON TO DOUBT THAT THE STATUTE WOULD BE HELD APPLICABLE TO
THIS CASE.  PP. 232-237. 

(D)  WHEN A CHANGE IN THE APPLICABLE STATE LAW INTERVENES BETWEEN
DECISION OF A CASE BY THE HIGHEST STATE COURT AND DECISION ON REVIEW
HERE, THE COURT'S PRACTICE IS TO VACATE AND REVERSE THE JUDGMENT AND
REMAND THE CASE TO THE STATE COURT, SO THAT IT MAY RECONSIDER IT IN THE
LIGHT OF THE CHANGE IN STATE LAW; THAT PRACTICE SHOULD BE FOLLOWED
HERE.  PP. 237-242. 

BELL ET AL. V. MARYLAND. 

CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, 12 NEGRO STUDENTS, WERE CONVICTED IN A MARYLAND STATE
COURT AS A RESULT OF THEIR PARTICIPATION IN A "SIT-IN" DEMONSTRATION AT
HOOPER'S RESTAURANT IN THE CITY OF BALTIMORE IN 1960.  THE CONVICTIONS
WERE BASED ON A RECORD SHOWING IN SUMMARY THAT A GROUP OF 15 TO 20
NEGRO STUDENTS, INCLUDING PETITIONERS, WENT TO HOOPER'S RESTAURANT TO
ENGAGE IN WHAT THEIR COUNSEL DESCRIBES AS A "SIT-IN PROTEST" BECAUSE
THE RESTAURANT WOULD NOT SERVE NEGROES.  THE "HOSTESS," ON ORDERS OF
MR. HOOPER, THE PRESIDENT OF THE CORPORATION OWNING THE RESTAURANT,
TOLD THEM, "SOLELY ON THE BASIS OF THIER COLOR," THAT THEY WOULD NOT BE
SERVED.  PETITIONERS DID NOT LEAVE WHEN REQUESTED TO BY THE HOSTESS AND
THE MANAGER; INSTEAD THEY WENT TO TABLES, TOOK SEATS, AND REFUSED TO
LEAVE, INSISTING THAT THEY BE SERVED.  ON ORDERS OF MR. HOOPER THE
POLICE WERE CALLED, BUT THEY ADVISED THAT A WARRANT WOULD BE NECESSARY
BEFORE THEY COULD ARREST PETITIONERS.  MR. HOOPER THEN WENT TO THE
POLICE STATION AND SWORE OUT WARRANTS, AND PETITIONERS WERE ACCORDINGLY
ARRESTED. 

THE STATUTE UNDER WHICH CONVICTIONS WERE OBTAINED WAS THE MARYLAND
CRIMINAL TRESPASS LAW, SEC. 577 OF ART. 27 OF THE MARYLAND CODE, 1957
EDITION, UNDER WHICH IT IS A MISDEMEANOR TO "ENTER UPON OR CROSS OVER
THE LAND, PREMISES OR PRIVATE PROPERTY OF ANY PERSON OR PERSONS IN THIS
STATE AFTER HAVING BEEN DULY NOTIFIED BY THE OWNER OR HIS AGENT NOT TO
DO SO."  THE CONVICTIONS WERE AFFIRMED BY THE MARYLAND COURT OF
APPEALS, 227 MD. 302, 176 A.2D 771 (1962), AND WE GRANTED CERTIORARI. 
374 U.S. 805. 

WE DO NOT REACH THE QUESTIONS THAT HAVE BEEN ARGUED UNDER THE EQUAL
PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT.  IT
APPEARS THAT A SIGNIFICANT CHANGE HAS TAKEN PLACE IN THE APPLICABLE LAW
OF MARYLAND SINCE THESE CONVICTIONS WERE AFFIRMED BY THE COURT OF
APPEALS.  UNDER THIS COURT'S SETTLED PRACTICE IN SUCH CIRCUMSTANCES,
THE JUDGMENTS MUST CONSEQUENTLY BE VACATED AND REVERSED AND THE CASE
REMANDED SO THAT THE STATE COURT MAY CONSIDER THE EFFECT OF THE
SUPERVENING CHANGE IN STATE LAW. 

PETITIONER'S CONVICTIONS WERE AFFIRMED BY THE MARYLAND COURT OF
APPEALS ON JANUARY 9, 1962.  SINCE THAT DATE, MARYLAND HAS ENACTED LAWS
THAT ABOLISH THE CRIME OF WHICH PETITIONERS WERE CONVICTED.  THESE LAWS
ACCORD PETITIONERS A RIGHT TO BE SERVED IN HOOPER'S RESTAURANT, AND
MAKE UNLAWFUL CONDUCT LIKE THAT OF HOOPER'S PRESIDENT AND HOSTESS IN
REFUSING THEM SERVICE BECAUSE OF THEIR RACE.  ON JUNE 8, 1962, THE CITY
OF BALTIMORE ENACTED ITS ORDINANCE NO. 1249, ADDING SEC. 10A TO ART.
14A OF THE BALTIMORE CITY CODE (1950 ED.).  THE ORDINANCE, WHICH BY ITS
TERMS TOOK EFFECT FROM THE DATE OF ITS ENACTMENT, PROHIBITS OWNERS AND
OPERATORS OF BALTIMORE PLACES OF PUBLIC ACCOMMODATION, INCLUDING
RESTAURANTS, FROM DENYING THEIR SERVICES OR FACILITIES TO ANY PERSON
BECAUSE OF HIS RACE.  A SIMILAR "PUBLIC ACCOMMODATIONS LAW," APPLICABLE
TO BALTIMORE CITY AND BALTIMORE COUNTY THOUGH NOT TO SOME OF THE
STATE'S OTHER COUNTIES, WAS ADOPTED BY THE STATE LEGISLATURE ON MARCH
29, 1963.  ART. 49B MD. CODE SEC. 11 (1963 SUPP.).  THIS STATUTE WENT
INTO EFFECT ON JUNE 1, 1963, AS PROVIDED BY SEC. 4 OF THE ACT, ACTS
1963, C. 227.  THE STATUTE PROVIDES THAT: 

"IT IS UNLAWFUL FOR AN OWNER OR OPERATOR OF A PLACE OF PUBLIC
ACCOMMODATION OR AN AGENT OR EMPLOYEE OF SAID OWNER OR OPERATOR,
BECAUSE OF THE RACE, CREED, COLOR, OR NATIONAL ORIGIN OF ANY PERSON, TO
REFUSE, WITHHOLD FROM, OR DENY TO SUCH PERSON ANY OF THE
ACCOMMODATIONS, ADVANTAGES, FACILITIES AND PRIVILEGES OF SUCH PLACE OF
PUBLIC ACCOMMODATION.  FOR THE PURPOSE OF THIS SUBTITLE, A PLACE OF
PUBLIC ACCOMMODATION MEANS ANY HOTEL, RESTAURANT, INN, MOTEL OR AN
ESTABLISHMENT COMMONLY KNOWN OR RECOGNIZED AS REGULARLY ENGAGED IN THE
BUSINESS OF PROVIDING SLEEPING ACCOMMODATIONS, OR SERVING FOOD, OR
BOTH, FOR A CONSIDERATION, AND WHICH IS OPEN TO THE GENERAL PUBLIC  ...
."  (FN1) 

IT IS CLEAR FROM THESE ENACTMENTS THAT PETITIONER'S CONDUCT IN
ENTERING OR CROSSING OVER THE PREMISES OF HOOPER'S RESTAURANT AFTER
BEING NOTIFIED NOT TO DO SO BECAUSE OF THEIR RACE WOULD NOT BE A CRIME
TODAY; ON THE CONTRARY, THE LAW OF BALTIMORE AND OF MARYLAND NOW
VINDICATES THEIR CONDUCT AND RECOGNIZES IT AS THE EXERCISE OF A RIGHT,
DIRECTING THE LAW'S PROHIBITION NOT AT THEM BUT AT THE RESTAURANT OWNER
OR MANAGER WHO SEEKS TO DENY THEM SERVICE BECAUSE OF THEIR RACE. 

AN EXAMINATION OF MARYLAND DECISIONS INDICATES THAT UNDER THE COMMON
LAW OF MARYLAND, THE SUPERVENING ENACTMENT OF THESE STATUTES ABOLISHING
THE CRIME FOR WHICH PETITIONERS WERE CONVICTED WOULD CAUSE THE MARYLAND
COURT OF APPEALS AT THIS TIME TO REVERSE THE CONVICTIONS AND ORDER THE
INDICTMENTS DISMISSED.  FOR MARYLAND FOLLOWS THE UNIVERSAL COMMON-LAW
RULE THAT WHEN THE LEGISLATURE REPEALS A CRIMINAL STATUTE OR OTHERWISE
REMOVES THE STATE'S CONDEMNATION FROM CONDUCT THAT WAS FORMERLY DEEMED
CRIMINAL, THIS ACTION REQUIRES THE DISMISSAL OF A PENDING CRIMINAL
PROCEEDING CHARGING SUCH CONDUCT.  THE RULE APPLIES TO ANY SUCH
PROCEEDING WHICH, AT THE TIME OF THE SUPERVENING LEGISLATION, HAS NOT
YET REACHED FINAL DISPOSITION IN THE HIGHEST COURT AUTHORIZED TO REVIEW
IT.  THUS, IN KELLER V. STATE, 12 MD. 322 (1858), THE STATUTE UNDER
WHICH THE APPELLANT HAD BEEN INDICTED AND CONVICTED WAS REPEALED BY THE
LEGISLATURE AFTER THE CASE HAD BEEN ARGUED ON APPEAL IN THE COURT OF
APPEALS BUT BEFORE THAT COURT'S DECISION, ALTHOUGH THE REPEAL WAS NOT
BROUGHT TO THE NOTICE OF THE COURT UNTIL AFTER THE JUDGMENT OF
AFFIRMANCE HAD BEEN ANNOUNCED.  THE APPELLANT'S SUBSEQUENT MOTION TO
CORRECT THE JUDGMENT WAS GRANTED, AND THE JUDGMENT WAS REVERSED.  THE
COURT EXPLAINED, ID., AT 325-327: 

"IT IS WELL SETTLED, THAT A PARTY CANNOT BE CONVICTED, AFTER THE LAW
UNDER WHICH HE MAY BE PROSECUTED HAS BEEN REPEALED, ALTHOUGH THE
OFFENCE MAY HAVE BEEN COMMITTED BEFORE THE REPEAL  ...  .  THE SAME
PRINCIPLE APPLIES WHERE THE LAW IS REPEALED, OR EXPIRES PENDING AN
APPEAL ON A WRIT OF ERROR FROM THE JUDGMENT OF AN INFERIOR COURT  ...
.  THE JUDGMENT IN A CRIMINAL CAUSE CANNOT BE CONSIDERED AS FINAL AND
CONCLUSIVE TO EVERY INTENT, NOTWITHSTANDING THE REMOVAL OF THE RECORD
TO A SUPERIOR COURT.  IF THIS WERE SO, THERE WOULD BE NO USE IN TAKING
THE APPEAL OR SUING OUT A WRIT OF ERROR  ...  .  AND SO IF THE LAW BE
REPEALED, PENDING THE APPEAL OR WRIT OF ERROR, THE JUDGMENT WILL BE
REVERSED, BECAUSE THE DECISION MUST BE IN ACCORDANCE WITH THE LAW AT
THE TIME OF FINAL JUDGMENT." 

THE RULE HAS SINCE BEEN REAFFIRMED BY THE MARYLAND COURT ON A NUMBER
OF OCCASIONS.  BEARD V. STATE, 74 MD. 130, 135, 21 A. 700, 702 (1891);
SMITH V. STATE, 45 MD. 49 (1876); STATE V. GAMBRILL, 115 MD. 506, 513,
81 A. 10, 12 (1911); STATE V. CLIFTON, 177 MD. 572, 574, 10 A.2D 703,
704 (1940).  (FN2) 

IT IS TRUE THAT THE PRESENT CASE IS FACTUALLY DISTINGUISHABLE, SINCE
HERE THE LEGISLATIVE ABOLITION OF THE CRIME FOR WHICH PETITIONERS WERE
CONVICTED OCCURRED AFTER RATHER THAN BEFORE THE DECISION OF THE
MARYLAND COURT OF APPEALS.  BUT THAT FACT WOULD SEEM IRRELEVANT.  FOR
THE PURPOSE OF APPLYING THE RULE OF THE MARYLAND COMMON LAW, IT APPEARS
THAT THE ONLY QUESTION IS WHETHER THE LEGISLATURE ACTS BEFORE THE
AFFIRMANCE OF THE CONVICTION BECOMES FINAL.  IN THE PRESENT CASE THE
JUDGMENT IS NOT YET FINAL, FOR IT IS ON DIRECT REVIEW IN THIS COURT. 
THIS WOULD THUS SEEM TO BE A CASE WHERE, AS IN KELLER, THE CHANGE OF
LAW HAS OCCURRED "PENDING AN APPEAL ON A WRIT OF ERROR FROM THE
JUDGMENT OF AN INFERIOR COURT," AND HENCE WHERE THE MARYLAND COURT OF
APPEALS UPON REMAND FROM THIS COURT WOULD RENDER ITS DECISION "IN
ACCORDANCE WITH THE LAW AT THE TIME OF FINAL JUDGMENT."  IT THUS SEEMS
THAT THE MARYLAND COURT OF APPEALS WOULD TAKE ACCOUNT OF THE
SUPERVENING ENACTMENT OF THE CITY AND STATE PUBLIC ACCOMMODATIONS LAWS
AND, APPLYING THE PRINCIPLE THAT A STATUTORY OFFENSE WHICH HAS "CEASED
TO EXIST IS NO LONGER PUNISHABLE AT ALL," BEARD V. STATE, SUPRA, 74 MD.
130, 135, 21 A. 700, 702 (1891), WOULD NOW REVERSE PETITIONERS'
CONVICTIONS AND ORDER THEIR INDICTMENTS DISMISSED. 

THE MARYLAND COMMON LAW IS NOT, HOWEVER, THE ONLY MARYLAND LAW THAT
IS RELEVANT TO THE QUESTION OF THE EFFECT OF THE SUPERVENING ENACTMENTS
UPON THESE CONVICTIONS.  MARYLAND HAS A GENERAL SAVING CLAUSE STATUTE
WHICH IN CERTAIN CIRCUMSTANCES "SAVES" STATE CONVICTIONS FROM THE
COMMON-LAW EFFECT OF SUPERVENING ENACTMENTS.  IT IS THUS NECESSARY TO
CONSIDER THE IMPACT OF THAT CLAUSE UPON THE PRESENT SITUATION.  THE
CLAUSE, ART. 1 MD.  CODE SEC. 3 (1957), READS AS FOLLOWS: 

"THE REPEAL, OR THE REPEAL AND RE-ENACTMENT, OR THE REVISION,
AMENDMENT OR CONSOLIDATION OF ANY STATUTE, OR OF ANY SECTION OR PART OF
A SECTION OF ANY STATUTE, CIVIL OR CRIMINAL, SHALL NOT HAVE THE EFFECT
TO RELEASE, EXTINGUISH, ALTER, MODIFY OR CHANGE, IN WHOLE OR IN PART,
ANY PENALTY, FORFEITURE OR LIABILITY, EITHER CIVIL OR CRIMINAL, WHICH
SHALL HAVE BEEN INCURRED UNDER SUCH STATUTE, SECTION OR PART THEREOF,
UNLESS THE REPEALING, REPEALING AND RE-ENACTING, REVISING, AMENDING OR
CONSOLIDATING ACT SHALL EXPRESSLY SO PROVIDE; AND SUCH STATUTE, SECTION
OR PART THEREOF, SO REPEALED, REPEALED AND RE-ENACTED, REVISED, AMENDED
OR CONSOLIDATED, SHALL BE TREATED AND HELD AS STILL REMAINING IN FORCE
FOR THE PURPOSE OF SUSTAINING ANY AND ALL PROPER ACTIONS, SUITS,
PROCEEDINGS OR PROSECUTIONS, CIVIL OR CRIMINAL, FOR THE ENFORCEMENT OF
SUCH PENALTY, FORFEITURE OR LIABILITY, AS WELL FOR THE PURPOSE OF
SUSTAINING ANY JUDGMENT, DECREE OR ORDER WHICH CAN OR MAY BE RENDERED,
ENTERED OR MADE IN SUCH ACTIONS, SUITS, PROCEEDINGS, OR PROSECUTIONS
IMPOSING, INFLICTING OR DECLARING SUCH PENALTY, FORFEITURE OR
LIABILITY." 

UPON EXAMINATION OF THIS CLAUSE AND OF THE RELEVANT STATE CASE LAW
AND POLICY CONSIDERATIONS, WE ARE FAR FROM PERSUADED THAT THE MARYLAND
COURT OF APPEALS WOULD HOLD THE CLAUSE TO BE APPLICABLE TO SAVE THESE
CONVICTIONS.  BY ITS TERMS, THE CLAUSE DOES NOT APPEAR TO BE APPLICABLE
AT ALL TO THE PRESENT SITUATION.  IT APPLIES ONLY TO THE "REPEAL,"
"REPEAL AND RE-ENACTMENT," "REVISION," "AMENDMENT," OR "CONSOLIDATION"
OF ANY STATUTE OR PART THEREOF.  THE EFFECT WROUGHT UPON THE CRIMINAL
TRESPASS STATUTE BY THE SUPERVENING PUBLIC ACCOMMODATIONS LAWS WOULD
SEEM TO BE PROPERLY DESCRIBED BY NONE OF THESE TERMS.  THE ONLY TWO
THAT COULD EVEN ARGUABLY APPLY ARE "REPEAL" AND "AMENDMENT."  BUT
NEITHER THE CITY NOR THE STATE PUBLIC ACCOMMODATIONS ENACTMENT GIVES
THE SLIGHTEST INDICATION THAT THE LEGISLATURE CONSIDERED ITSELF TO BE
"REPEALING" OR "AMENDING" THE TRESPASS LAW.  NEITHER ENACTMENT REFERS
IN ANY WAY TO THE TRESPASS LAW, AS IS CHARACTERISTICALLY DONE WHEN A
PRIOR STATUTE IS BEING REPEALED OR AMENDED.  (FN3)  THIS FACT ALONE
RAISES A SUBSTANTIAL POSSIBILITY THAT THE SAVING CLAUSE WOULD BE HELD
INAPPLICABLE, FOR THE CLAUSE MIGHT BE NARROWLY CONSTRUED - ESPECIALLY
SINCE IT IS IN DEROGATION OF THE COMMON LAW AND SINCE THIS IS A
CRIMINAL CASE - AS REQUIRING THAT A "REPEAL" OR "AMENDMENT" BE
DESIGNATED AS SUCH IN THE SUPERVENING STATUTE ITSELF.  (FN4) 

THE ABSENCE OF SUCH TERMS FROM THE PUBLIC ACCOMMODATIONS LAWS BECOMES
MORE SIGNIFICANT WHEN IT IS RECOGNIZED THAT THE EFFECT OF THESE
ENACTMENTS UPON THE TRESPASS STATUTE WAS QUITE DIFFERENT FROM THAT OF
AN "AMENDMENT" OR EVEN A "REPEAL" IN THE USUAL SENSE.  THESE ENACTMENTS
DO NOT - IN THE MANNER OF AN ORDINARY "REPEAL," EVEN ONE THAT IS
SUBSTANTIVE RATHER THAT ONLY FORMAL OR TECHNICAL - MERELY ERASE THE
CRIMINAL LIABILITY THAT HAD FORMERLY ATTACHED TO PERSONS WHO ENTERED OR
CROSSED OVER THE PREMISES OF A RESTAURANT AFTER BEING NOTIFIED NOT TO
BECAUSE OF THEIR RACE; THEY GO FURTHER AND CONFER UPON SUCH PERSONS AN
AFFIRMATIVE RIGHT TO CARRY ON SUCH CONDUCT, MAKING IT UNLAWFUL FOR THE
RESTAURANT OWNER OR PROPRIETOR TO NOTIFY THEM TO LEAVE BECAUSE OF THEIR
RACE.  SUCH A SUBSTITUTION OF A RIGHT FOR A CRIME, AND VICE VERSA, IS A
POSSIBLY UNIQUE PHENOMENON IN LEGISLATION; IT THUS MIGHT WELL BE
CONSTRUED AS FALLING OUTSIDE THE ROUTINE CATEGORIES OF "AMENDMENT" AND
"REPEAL." 

COGENT STATE POLICY CONSIDERATIONS WOULD SEEM TO SUPPORT SUCH A
VIEW.  THE LEGISLATIVE POLICY EMBODIED IN THE SUPERVENING ENACTMENTS
HERE WOULD APPEAR TO BE MUCH MORE STRONGLY OPPOSED TO THAT EMBODIED IN
THE OLD ENACTMENT THAN IS USUALLY TRUE IN THE CASE OF AN "AMENDMENT" OR
"REPEAL."  IT WOULD CONSEQUENTLY SEEM UNLIKELY THAT THE LEGISLATURE
INTENDED THE SAVING CLAUSE TO APPLY IN THIS SITUATION, WHERE THE RESULT
OF ITS APPLICATION WOULD BE THE CONVICTION AND PUNISHMENT OF PERSONS
WHOSE "CRIME" HAS BEEN NOT ONLY ERASED FROM THE STATUTE BOOKS BUT
OFFICIALLY VINDICATED BY THE NEW ENACTMENTS.  A LEGISLATURE THAT PASSED
A PUBLIC ACCOMMODATIONS LAW MAKING IT UNLAWFUL TO DENY SERVICE ON
ACCOUNT OF RACE PROBABLY DID NOT DESIRE THAT PERSONS SHOULD STILL BE
PROSECUTED AND PUNISHED FOR THE "CRIME" OF SEEKING SERVICE FROM A PLACE
OF PUBLIC ACCOMMODATIONS WHICH DENIES IT ON ACCOUNT OF RACE.  SINCE THE
LANGUAGE OF THE SAVING CLAUSE RAISES NO BARRIER TO A RULING IN
ACCORDANCE WITH THESE POLICY CONSIDERATIONS, WE SHOULD HESITATE LONG
INDEED BEFORE CONCLUDING THAT THE MARYLAND COURT OF APPEALS WOULD
DEFINITELY HOLD THE SAVING CLAUSE APPLICABLE TO SAVE THESE
CONVICTIONS.    MOREOVER, EVEN IF THE WORD "REPEAL" OR "AMENDMENT" WERE
DEEMED TO MAKE THE SAVING CLAUSE PRIMA FACIE APPLICABLE, THAT WOULD NOT
BE THE END OF THE MATTER.  THERE WOULD REMAIN A SUBSTANTIAL POSSIBILITY
THAT THE PUBLIC ACCOMMODATIONS LAWS WOULD BE CONSTRUED AS FALLING
WITHIN THE CLAUSE'S EXCEPTION:  "UNLESS THE REPEALING  ...  ACT SHALL
EXPRESSLY SO PROVIDE."  NOT ONLY DO THE POLICY CONSIDERATIONS NOTED
ABOVE SUPPORT SUCH AN INTERPRETATION, BUT THE OPERATIVE LANGUAGE OF THE
STATE PUBLIC ACCOMMODATIONS ENACTMENT AFFORDS A SOLID BASIS FOR A
FINDING THAT IT DOES "EXPRESSLY SO PROVIDE" WITHIN THE TERMS OF THE
SAVING CLAUSE.  WHEREAS MOST CRIMINAL STATUTES SPEAK IN THE FUTURE
TENSE - SEE, FOR EXAMPLE, THE TRESPASS STATUTE HERE INVOLVED, ART. 27
MD. CODE SEC. 577:  "ANY PERSON OR PERSONS WHO SHALL ENTER UPON OR
CROSS OVER  ...  " - THE STATE ENACTMENT HERE SPEAKS IN THE PRESENT
TENSE, PROVIDING THAT "IT IS UNLAWFUL FOR AN OWNER OR OPERATOR  ...
."  IN THIS VERY CONTEXT, THE MARYLAND COURT OF APPEALS HAS GIVEN
EFFECT TO THE DIFFERENCE BETWEEN THE FUTURE AND PRESENT TENSE.  IN
BEARD V. STATE, SUPRA, 74 MD. 130, 21 A. 700, THE COURT, IN HOLDING
THAT A SUPERVENING STATUTE DID NOT IMPLICITLY REPEAL THE FORMER LAW AND
THUS DID NOT REQUIRE DISMISSAL OF THE DEFENDANT'S CONVICTION UNDER THAT
LAW, RELIED ON THE FACT THAT THE NEW STATUTE USED THE WORD "SHALL"
RATHER THAN THE WORD "IS."  FROM THIS THE COURT CONCLUDED THAT "THE
OBVIOUS INTENTION OF THE LEGISLATURE IN PASSING WAS, NOT TO INTERFERE
WITH PAST OFFENCES, BUT MERELY TO FIX A PENALTY FOR FUTURE ONES."  74
MD., AT 133, 21 A., AT 701.  CONVERSELY HERE, THE USE OF THE PRESENT
INSTEAD OF THE MORE USUAL FUTURE TENSE MAY VERY POSSIBLY BE HELD BY THE
COURT OF APPEALS, ESPECIALLY IN VIEW OF THE POLICY CONSIDERATIONS
INVOLVED, TO CONSTITUTE AN "EXPRESS PROVISION" BY THE LEGISLATURE,
WITHIN THE TERMS OF THE SAVING CLAUSE, THAT IT DID INTEND ITS NEW
ENACTMENT TO APPLY TO PAST AS WELL AS FUTURE CONDUCT - THAT IT DID NOT
INTEND THE SAVING CLAUSE TO BE APPLIED, IN DEROGATION OF THE COMMON-LAW
RULE, SO AS TO PERMIT THE CONTINUED PROSECUTION AND PUNISHMENT OF
PERSONS ACCUSED OF A "CRIME" WHICH THE LEGISLATURE HAS NOW DECLARED TO
BE A RIGHT. 

AS A MATTER OF MARYLAND LAW, THEN, THE ARGUMENTS SUPPORTING A
CONCLUSION THAT THE SAVING CLAUSE WOULD NOT APPLY TO SAVE THESE
CONVICTIONS SEEM QUITE SUBSTANTIAL.  IT IS NOT FOR US, HOWEVER, TO
DECIDE THIS QUESTION OF MARYLAND LAW, OR TO REACH A CONCLUSION AS TO
HOW THE MARYLAND COURT OF APPEALS WOULD DECIDE IT.  SUCH A COURSE WOULD
BE INCONSISTENT WITH OUR TRADITION OF DEFERENCE TO STATE COURTS ON
QUESTIONS OF STATE LAW.  NOR IS IT FOR US TO IGNORE THE SUPERVENING
CHANGE IN STATE LAW AND PROCEED TO DECIDE THE FEDERAL CONSTITUTIONAL
QUESTIONS PRESENTED BY THIS CASE.  TO DO SO WOULD BE TO DECIDE
QUESTIONS WHICH, BECAUSE OF THE POSSIBILITY THAT THE STATE COURT WOULD
NOW REVERSE THE CONVICTIONS, ARE NOT NECESSARILY PRESENTED FOR
DECISION.  SUCH A COURSE WOULD BE INCONSISTENT WITH OUR CONSTITUTIONAL
INABILITY TO RENDER ADVISORY OPINIONS, AND WITH OUR CONSEQUENT POLICY
OF REFUSING TO DECIDE A FEDERAL QUESTION IN A CASE THAT MIGHT BE
CONTROLLED BY A STATE GROUND OF DECISION.  SEE MURDOCK V. MEMPHIS, 20
WALL.  590, 634-636.  TO AVOID THESE PITFALLS - TO LET ISSUES OF STATE
LAW BE DECIDED BY STATE COURTS AND TO PRESERVE OUR POLICY OF AVOIDING
GRATUITOUS DECISIONS OF FEDERAL QUESTIONS - WE HAVE LONG FOLLOWED A
UNIFORM PRACTICE WHERE A SUPERVENING EVENT RAISES A QUESTION OF STATE
LAW PERTAINING TO A CASE PENDING ON REVIEW HERE.  THAT PRACTICE IS TO
VACATE AND REVERSE THE JUDGMENT AND REMAND THE CASE TO THE STATE COURT,
SO THAT IT MAY RECONSIDER IT IN THE LIGHT OF THE SUPERVENING CHANGE IN
STATE LAW. 

THE RULE WAS AUTHORITATIVELY STATED AND APPLIED IN MISSOURI EX REL.
WABASH R. CO. V. PUBLIC SERVICE COMM'N, 273 U.S. 126, A CASE WHERE THE
SUPERVENING EVENT WAS - AS IT IS HERE - ENACTMENT OF NEW STATE
LEGISLATION ASSERTED TO CHANGE THE LAW UNDER WHICH THE CASE HAD BEEN
DECIDED BY THE HIGHEST STATE COURT.  SPEAKING FOR THE COURT, MR.
JUSTICE STONE SAID: 

"ORDINARILY THIS COURT ON WRIT OF ERROR TO A STATE COURT CONSIDERS
ONLY FEDERAL QUESTIONS AND DOES NOT REVIEW QUESTIONS OF STATE LAW.  BUT
WHERE QUESTIONS OF STATE LAW ARISING AFTER THE DECISION BELOW ARE
PRESENTED HERE, OUR APPELLATE POWERS ARE NOT THUS RESTRICTED.  EITHER
BECAUSE NEW FACTS HAVE SUPERVENED SINCE THE JUDGMENT BELOW, OR BECAUSE
OF A CHANGE IN THE LAW, THIS COURT, IN THE EXERCISE OF ITS APPELLATE
JURISDICTION, MAY CONSIDER THE STATE QUESTIONS THUS ARISING AND EITHER
DECIDE THEM OR REMAND THE CAUSE FOR APPROPRIATE ACTION BY THE STATE
COURTS.  THE MEANING AND EFFECT OF THE STATE STATUTE NOW IN QUESTION
ARE PRIMARILY FOR THE DETERMINATION OF THE STATE COURT.  WHILE THIS
COURT MAY DECIDE THESE QUESTIONS, IT IS NOT OBLIGED TO DO SO, AND IN
VIEW OF THEIR NATURE, WE DEEM IT APPROPRIATE TO REFER THE DETERMINATION
TO THE STATE COURT.  IN ORDER THAT THE STATE COURT MAY BE FREE TO
CONSIDER THE QUESTION AND MAKE PROPER DISPOSITION OF IT, THE JUDGMENT
BELOW SHOULD BE SET ASIDE, SINCE A DISMISSAL OF THIS APPEAL MIGHT LEAVE
THE JUDGMENT TO BE ENFORCED AS RENDERED.  THE JUDGMENT IS ACCORDINGLY
REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS."  273 U.S., AT
131. 

SIMILARLY, IN PATTERSON V. ALABAMA, 294 U.S. 600, MR. CHIEF JUSTICE
HUGHES STATED THE RULE AS FOLLOWS: 

"WE HAVE FREQUENTLY HELD THAT IN THE EXERCISE OF OUR APPELLATE
JURISDICTION WE HAVE POWER NOT ONLY TO CORRECT ERROR IN THE JUDGMENT
UNDER REVIEW BUT TO MAKE SUCH DISPOSITION OF THE CASE AS JUSTICE
REQUIRES.  AND IN DETERMINING WHAT JUSTICE DOES REQUIRE, THE COURT IS
BOUND TO CONSIDER ANY CHANGE, EITHER IN FACT OR IN LAW, WHICH HAS
SUPERVENED SINCE THE JUDGMENT WAS ENTERED.  WE MAY RECOGNIZE SUCH A
CHANGE, WHICH MAY AFFECT THE RESULT, BY SETTING ASIDE THE JUDGMENT AND
REMANDING THE CASE SO THAT THE STATE COURT MAY BE FREE TO ACT.  WE HAVE
SAID THAT TO DO THIS IS NOT TO REVIEW, IN ANY PROPER SENSE OF THE TERM,
THE DECISION OF THE STATE COURT UPON A NON-FEDERAL QUESTION, BUT ONLY
TO DEAL APPROPRIATELY WITH A MATTER ARISING SINCE ITS JUDGMENT AHD
HAVING A BEARING UPON THE RIGHT DISPOSITION OF THE CASE."  294 U.S., AT
607. 

FOR OTHER CASES APPLYING THE RULE, SEE GULF, C.&S.F.R. CO. V. DENNIS,
224 U.S. 503, 505-507; DORCHY V. KANSAS, 264 U.S. 286, 289; ASHCRAFT V.
TENNESSEE, 322 U.S. 143, 155-156.  (FN5) 

THE QUESTION OF MARYLAND LAW RAISED HERE BY THE SUPERVENING ENACTMENT
OF THE CITY AND STATE PUBLIC ACCOMMODATIONS LAWS CLEARLY FALLS WITHIN
THE RULE REQUIRING US TO VACATE AND REVERSE THE JUDGMENT AND REMAND THE
CASE TO THE MARYLAND COURT OF APPEALS.  INDEED, WE HAVE FOLLOWED THIS
COURSE IN OTHER SITUATIONS INVOLVING A STATE SAVING CLAUSE OR SIMILAR
PROVISION, WHERE IT WAS CONSIDERABLY MORE PROBABLE THAN IT IS HERE THAT
THE STATE WOULD DESIRE ITS JUDGMENT TO STAND DESPITE THE SUPERVENING
CHANGE OF LAW.  IN ROTH V. DELANO, 338 U.S. 226, THE COURT VACATED AND
REMANDED THE JUDGMENT IN LIGHT OF THE STATE'S SUPERVENING REPEAL OF THE
APPLICABLE STATUTE DESPITE THE PRESENCE IN THE REPEALER OF A SAVING
CLAUSE WHICH, UNLIKE THE ONE HERE, WAS CLEARLY APPLICABLE IN TERMS.  IN
DORCHY V. KANSAS, SUPRA, 264 U.S. 286, THE SUPERVENING EVENT WAS A
HOLDING BY THIS COURT THAT ANOTHER PORTION OF THE SAME STATE STATUTE
WAS UNCONSTITUTIONAL, AND THE QUESTION WAS WHETHER DORCHY'S CONVICTION
COULD STAND NEVERTHELESS.  THE STATE STATUTE HAD A SEVERABILITY
PROVISION WHICH SEEMINGLY ANSWERED THE QUESTION CONCLUSIVELY, PROVIDING
THAT "IF ANY SECTION OR PROVISION OF THIS ACT SHALL BE FOUND INVALID BY
ANY COURT, IT SHALL BE CONCLUSIVELY PRESUMED THAT THIS ACT WOULD HAVE
BEEN PASSED BY THE LEGISLATURE WITHOUT SUCH INVALID SECTION OR
PROVISION  ...  ."  NEVERTHELESS, A UNANIMOUS COURT VACATED AND
REVERSED THE JUDGMENT AND REMANDED THE CASE, SO THAT THE QUESTION COULD
BE DECIDED BY THE STATE COURT.  MR. JUSTICE BRANDEIS SAID, 264 U.S., AT
290-291: 

"WHETHER SEC. 19 (THE CRIMINAL PROVISION UNDER WHICH DORCHY STOOD
CONVICTED) IS SO INTERWOVEN WITH THE SYSTEM HELD INVALID THAT THE
LEGISLATIVE INTENT  ...  .  SECTION 28 OF THE ACT (THE SEVERABILITY
CLAUSE)  ...  PROVIDES A RULE OF CONSTRUCTION WHICH MAY SOMETIMES AID
IN DETERMINING THAT INTENT.  BUT IT IS AN AID MERELY; NOT AN INEXORABLE
COMMAND. 

"THE TASK OF DETERMINING THE INTENTION OF THE STATE LEGISLATURE IN
THIS RESPECT, LIKE THE USUAL FUNCTION OF INTERPRETING A STATE STATUTE,
RESTS PRIMARILY UPON THE STATE COURT.  ITS DECISION AS TO THE
SEVERABILITY OF A PROVISION IS CONCLUSIVE UPON THIS COURT  ...  .  IN
CASES COMING FROM THE STATE COURTS, THIS COURT, IN THE ABSENCE OF A
CONTROLLING STATE DECISION, MAY, IN PASSING UPON THE CLAIM UNDER THE
FEDERAL LAW, DECIDE, ALSO, THE QUESTION OF SEVERABILITY.  BUT IT IS NOT
OBLIGED TO DO SO.  THE SITUATION MAY BE SUCH AS TO MAKE IT APPROPRIATE
TO LEAVE THE DETERMINATION OF THE QUESTION TO THE STATE COURT.  WE
THINK THAT COURSE SHOULD BE FOLLOWED IN THIS CASE. 

"  ...  IN ORDER THAT THE STATE COURT MAY PASS UPON THIS QUESTION,
ITS JUDGMENT IN THIS CASE, WHICH WAS RENDERED BEFORE OUR DECISION IN
(THE OTHER CASE), SHOULD BE VACATED  ...  .  TO THIS END THE JUDGMENT
IS REVERSED." 

EXCEPT FOR THE IMMATERIAL FACT THAT A SEVERABILITY CLAUSE RATHER THAN
A SAVING CLAUSE WAS INVOLVED, THE HOLDING AND THE OPERATIVE LANGUAGE OF
THE DORCHY CASE ARE PRECISELY IN POINT HERE.  INDEED, THE NEED TO SET
ASIDE THE JUDGMENT AND REMAND THE CASE IS EVEN MORE COMPELLING HERE,
SINCE THE MARYLAND SAVING CLAUSE IS NOT LITERALLY APPLICABLE TO THE
PUBLIC ACCOMMODATIONS LAWS AND SINCE STATE POLICY CONSIDERATIONS
STRENGTHEN THE INFERENCE THAT IT WILL BE HELD INAPPLICABLE.  HERE, AS
IN DORCHY, THE APPLICABILITY OF THE CLAUSE TO SAVE THE CONVICTION "IS A
QUESTION OF INTERPRETATION AND OF LEGISLATIVE INTENT," AND HENCE IT IS
"APPROPRIATE TO LEAVE THE DETERMINATION OF THE QUESTION TO THE STATE
COURT."  EVEN IF THE MARYLAND SAVING CLAUSE WERE LITERALLY APPLICABLE,
THE FACT WOULD REMAIN THAT, AS IN DORCHY, THE CLAUSE "PROVIDES A RULE
OF CONSTRUCTION WHICY MAY SOMETIMES AID IN DETERMINING THAT INTENT. 
BUT IT IS AN AID MERELY; NOT AN INEXORABLE COMMAND."  THE MARYLAND
COURT OF APPEALS HAS STATED THAT THE MARYLAND SAVING CLAUSE IS LIKEWISE
"MERELY AN AID TO INTERPRETATION."   STATE V. KENNERLY, NOTE 4, SUPRA,
204 MD., AT 417, 104 A.2D, AT 634. 

IN SHORT, THIS CASE INVOLVES NOT ONLY A QUESTION OF STATE LAW BUT AN
OPEN AND ARGUABLE ONE.  THIS COURT THUS HAS A "DUTY TO RECOGNIZE THE
CHANGED SITUATION," GULF, C.&S.F.R.  CO. V. DENNIS, SUPRA, 224 U.S., AT
507, AND, BY VACATING AND REVERSING THE JUDGMENT AND REMANDING THE
CASE, TO GIVE EFFECT TO THE PRINCIPLE THAT "THE MEANING AND EFFECT OF
THE STATE STATUTE NOW IN QUESTION ARE PRIMARILY FOR THE DETERMINATION
OF THE STATE COURT."  MISSOURI EX REL. WABASH R. CO. V. PUBLIC SERVICE
COMM'N, SUPRA, 273 U.S., AT 131. 

ACCORDINGLY, THE JUDGMENT OF THE MARYLAND COURT OF APPEALS SHOULD BE
VACATED AND THE CASE REMANDED TO THAT COURT, AND TO THIS END THE
JUDGMENT IS REVERSED AND REMANDED. 

FN1  ANOTHER PUBLIC ACCOMMODATIONS LAW WAS ENACTED BY THE MARYLAND
LEGISLATURE ON MARCH 14, 1964, AND SIGNED BY THE GOVERNOR ON APRIL 7,
1964.  THIS STATUTE RE-ENACTS THE QUOTED PROVISION FROM THE 1963
ENACTMENT AND GIVES IT STATEWIDE APPLICATION, ELIMINATING THE COUNTY
EXCLUSIONS.  THE NEW STATUTE WAS SCHEDULED TO GO INTO EFFECT ON JUNE 1,
1964, BUT ITS OPERATION HAS APPARENTLY BEEN SUSPENDED BY THE FILING OF
PETITIONS SEEKING A REFERENDUM.  SEE MD. CONST., ART. XVI; BALTIMORE
SUN, MAY 31, 1964, P. 22, COL. 1.  MEANWHILE, THE BALTIMORE CITY
ORDINANCE AND THE 1963 STATE LAW, BOTH OF WHICH ARE APPLICABLE TO
BALTIMORE CITY, WHERE HOOPER'S RESTAURANT IS LOCATED, REMAIN IN
EFFECT. 

FN2  THE RULE HAS ALSO BEEN CONSISTENTLY RECOGNIZED AND APPLIED BY
THIS COURT.  THUS IN UNITED STATES V. SCHOONER PEGGY, 1 CRANCH 103,
110, CHIEF JUSTICE MARSHALL HELD: 

"IT IS IN THE GENERAL TRUE THAT THE PROVINCE OF AN APPELLATE COURT IS
ONLY TO ENQUIRE WHETHER A JUDGMENT WHEN RENDERED WAS ERRONEOUS OR NOT. 
BUT IF SUBSEQUENT TO THE JUDGMENT AND BEFORE THE DECISION OF THE
APPELLATE COURT, A LAW INTERVENES AND POSITIVELY CHANGES THE RULE WHICH
GOVERNS, THE LAW MUST BE OBEYED, OR ITS OBLIGATION DENIED.  IF THE LAW
BE CONSTITUTIONAL,  ...  I KNOW OF NO COURT WHICH CAN CONTEST ITS
OBLIGATION  ...  .  IN SUCH A CASE THE COURT MUST DECIDE ACCORDING TO
EXISTING LAWS, AND IF IT BE NECESSARY TO SET ASIDE A JUDGMENT, RIGHTFUL
WHEN RENDERED, BUT WHICH CANNOT BE AFFIRMED BUT IN VIOLATION OF LAW,
THE JUDGMENT MUST BE SET ASIDE." 

SEE ALSO YEATON V. UNITED STATES, 5 CRANCH 281, 283; MARYLAND V.
BALTIMORE & O.R. CO., 3 HOW.  534, 552; UNITED STATES V. TYNEN, 11
WALL.  88, 95; UNITED STATES V. REISINGER, 128 U.S. 398, 401; UNITED
STATES V. CHAMBERS, 291 U.S. 217, 222-223; MASSEY V. UNITED STATES, 291
U.S. 608. 

FN3  THUS THE STATEWIDE PUBLIC ACCOMMODATIONS LAW ENACTED IN 1964,
SEE NOTE 1, SUPRA, IS ENTITLED "AN ACT TO REPEAL AND RE-ENACT, WITH
AMENDMENTS  ...  ,"  THE 1963 ACT, AND PROVIDES EXPRESSLY AT SEVERAL
POINTS THAT CERTAIN PORTIONS OF THE 1963 ACT - NONE OF WHICH IS HERE
RELEVANT - ARE "HEREBY REPEALED."  BUT THE 1964 ENACTMENT, LIKE THE
1963 ENACTMENT AND THE BALTIMORE CITY ORDINANCE, CONTAINS NO REFERENCE
WHATEVER TO THE TRESPASS LAW, MUCH LESS A STATEMENT THAT THAT LAW IS
BEING IN ANY RESPECT "REPEALED" OR "AMENDED." 

FN4  THE MARYLAND CASE LAW UNDER THE SAVING CLAUSE IS MEAGER AND
SHEDS LITTLE IF ANY LIGHT ON THE PRESENT QUESTION.  THE CLAUSE HAS BEEN
CONSTRUED ONLY TWICE SINCE ITS ENACTMENT IN 1912, AND NEITHER CASE
SEEMS DIRECTLY RELEVANT HERE.  STATE V. CLIFTON, 177 MD. 572, 10 A.2D
703 (1940); STATE V. KENNERLY, 204 MD. 412, 104 A.2D 632 (1954).  IN
TWO OTHER CASES, THE CLAUSE WAS IGNORED.  STATE V. AMERICAN BONDING
CO., 128 MD. 268, 97 A. 529 (1916); GREEN V. STATE, 170 MD. 134, 183 A.
526 (1936).   THE FAILURE TO APPLY THE CLAUSE IN THESE CASES WAS
EXPLAINED BY THE COURT OF APPEALS IN THE CLIFTON CASE, SUPRA, 177 MD.,
AT 576-577, 10 A.2D, AT 705, ON THE BASIS THAT "IN NEITHER OF THOSE
PROCEEDINGS DID IT APPEAR THAT ANY PENALTY, FORFEITURE, OR LIABILITY
HAD ACTUALLY BEEN INCURRED."  THIS MAY INDICATE A NARROW CONSTRUCTION
OF THE CLAUSE, SINCE THE LANGUAGE OF THE CLAUSE WOULD SEEM TO HAVE
APPLIED TO BOTH CASES.  ALSO INDICATIVE OF A NARROW CONSTRUCTION IS THE
STATEMENT OF THE COURT OF APPEALS IN THE KENNERLY CASE, SUPRA, THAT THE
SAVING CLAUSE IS "MERELY AN AID TO INTERPRETATION, STATING THE GENERAL
RULE AGAINST REPEALS BY IMPLICATION IN MORE SPECIFIC FORM."  204 MD.,
AT 417, 104 A.2D, AT 634.  THUS, IF THE CASE LAW HAS ANY PERTINENCE IT
SUPPORTS A NARROW CONSTRUCTION OF THE SAVING CLAUSE AND HENCE A
CONCLUSION THAT THE CLAUSE IS INAPPLICABLE HERE. 

FN5  SEE ALSO METZGER MOTOR CAR CO. V. PARROTT, 233 U.S. 36; NEW YORK
EX REL. WHITMAN V. WILSON, 318 U.S. 688; STATE TAX COMM'N V. VAN COTT,
306 U.S. 511; ROTH V. DELANO, 338 U.S. 226, 231; WILLIAMS V. GEORGIA,
349 U.S. 375, 390-391; TRUNKLINE GAS CO. V. HARDIN COUNTY, 375 U.S. 8. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE GOLDBERG CONCURS AS
RESPECTS PARTS II-V, FOR REVERSING AND DIRECTING DISMISSAL OF THE
INDICTMENT. 

                  I. 

I REACH THE MERITS OF THIS CONTROVERSY.  THE ISSUE IS RIPE FOR
DECISION AND PETITIONERS, WHO HAVE BEEN CONVICTED OF ASKING FOR SERVICE
IN HOOPER'S RESTAURANT, ARE ENTITLED TO AN ANSWER TO THEIR COMPLAINT
HERE AND NOW. 

ON THIS THE LAST DAY OF THE TERM, WE STUDIOUSLY AVOID DECISION OF THE
BASIC ISSUE OF THE RIGHT OF PUBLIC ACCOMMODATION UNDER THE FOURTEENTH
AMENDMENT, REMANDING THE CASE TO THE STATE COURT FOR RECONSIDERATION IN
LIGHT OF AN ISSUE OF STATE LAW. 

THE CASE WAS ARGUED OCTOBER 14 AND 15, 1963 - OVER EIGHT MONTHS AGO. 
THE RECORD OF THE CASE IS SIMPLE, THE CONSTITUTIONAL GUIDELINES WELL
MARKED, THE PRECEDENTS MARSHALLED.  THOUGH THE COURT IS DIVIDED, THE
PREPARATION OF OPINIONS LAYING BARE THE DIFFERENCES DOES NOT REQUIRE
EVEN TWO MONTHS, LET ALONE EIGHT.  MOREOVER, A MAJORITY REACH THE
MERITS OF THE ISSUE.  WHY THEN SHOULD A MINORITY PREVENT A RESOLUTION
OF THE DIFFERING VIEWS? 

THE LAWS RELIED ON FOR VACATING AND REMANDING WERE ENACTED JUNE 8,
1962, AND MARCH 29, 1963 - LONG BEFORE ORAL ARGUMENT.  WE DID INDEED
NOT GRANT CERTIORARI UNTIL JUNE 10, 1963.  HENCE IF WE WERE REALLY
CONCERNED WITH THIS STATE LAW QUESTION, WE WOULD HAVE VACATED AND
REMANDED FOR RECONSIDERATION IN LIGHT OF THOSE LAWS ON JUNE 10, 1963. 
BY NOW WE WOULD HAVE HAD AN ANSWER AND BEEN ABLE TO PUT OUR DECISION
INTO THE MAINSTREAM OF THE LAW AT THIS CRITICAL HOUR.  IF THE PARTIES
HAD BEEN CONCERNED, THEY TOO MIGHT HAVE ASKED THAT WE FOLLOW THAT
COURSE.  MARYLAND ADVERTED TO THE NEW LAW MERELY TO SHOW WHY CERTIORARI
SHOULD NOT BE GRANTED.  AT THE ARGUMENT AND AT OUR CONFERENCES WE WERE
NOT CONCERNED WITH THAT QUESTION, THE ISSUE BEING DEEMED FRIVOLOUS. 
NOW IT IS RESURRECTED TO AVOID FACING THE CONSTITUTIONAL QUESTION. 

THE WHOLE NATION HAS TO FACE THE ISSUE; CONGRESS IS CONSCIENTIOUSLY
CONSIDERING IT; SOME MUNICIPALITIES HAVE HAD TO MAKE IT THEIR FIRST
ORDER OF CONCERN; LAW ENFORCEMENT OFFICIALS ARE DEEPLY IMPLICATED,
NORTH AS WELL AS SOUTH; THE QUESTION IS AT THE ROOT OF DEMONSTRATIONS,
UNREST, RIOTS, AND VIOLENCE IN VARIOUS AREAS.  THE ISSUE IN OTHER WORDS
CONSUMES THE PUBLIC ATTENTION.  YET WE STAND MUTE, AVOIDING DECISION OF
THE BASIC ISSUE BY AN OBVIOUS PRETENSE. 

THE CLASH BETWEEN NEGRO CUSTOMERS AND WHITE RESTAURANT OWNERS IS
CLEAR; EACH GROUP CLAIMS PROTECTION BY THE CONSTITUTION AND TENDERS THE
FOURTEENTH AMENDMENT AS JUSTIFICATION FOR ITS ACTION.   YET WE LEAVE
RESOLUTION OF THE CONFLICT TO OTHERS, WHEN, IF OUR VOICE WERE HEARD,
THE ISSUES FOR THE CONGRESS AND FOR THE PUBLIC WOULD BECOME CLEAR AND
PRECISE.  THE COURT WAS CREATED TO SIT IN TROUBLED TIMES AS WELL AS IN
PEACEFUL DAYS. 

THERE IS A SCHOOL OF THOUGHT THAT OUR ADJUDICATION OF A
CONSTITUTIONAL ISSUE SHOULD BE DELAYED AND POSTPONED AS LONG AS
POSSIBLE.  THAT SCHOOL HAS HAD MANY STOUT DEFENDERS AND INGENIOUS MEANS
HAVE AT TIMES BEEN USED TO AVOID CONSTITUTIONAL PRONOUNCEMENTS.  YET
JUDGE-MADE RULES, FASHIONED TO AVOID DECISION OF CONSTITUTIONAL
QUESTIONS, LARGELY FORGET WHAT CHIEF JUSTICE MARSHALL WROTE IN FLETCHER
V. PECK, 6 CRANCH 87, 137-138: 

"WHATEVER RESPECT MIGHT HAVE BEEN FELT FOR THE STATE SOVEREIGNTIES,
IT IS NOT TO BE DISGUISED THAT THE FRAMERS OF THE CONSTITUTION VIEWED,
WITH SOME APPREHENSION, THE VIOLENT ACTS WHICH MIGHT GROW OUT OF THE
FEELINGS OF THE MOMENT; AND THAT THE PEOPLE OF THE UNITED STATES, IN
ADOPTING THAT INSTRUMENT, HAVE MANIFESTED A DETERMINATION TO SHIELD
THEMSELVES AND THEIR PROPERTY FROM THE EFFECTS OF THOSE SUDDEN AND
STRONG PASSIONS TO WHICH MEN ARE EXPOSED.  THE RESTRICTIONS ON THE
LEGISLATIVE POWER OF THE STATES ARE OBVIOUSLY FOUNDED IN THIS
SENTIMENT; AND THE CONSTITUTION OF THE UNITED STATES CONTAINS WHAT MAY
BE DEEMED A BILL OF RIGHTS FOR THE PEOPLE OF EACH STATE." 

MUCH OF OUR HISTORY HAS SHOWN THAT WHAT MARSHALL SAID OF THE
ENCROACHMENT OF LEGISLATIVE POWER ON THE RIGHTS OF THE PEOPLE IS TRUE
ALSO OF THE ENCROACHMENT OF THE JUDICIAL BRANCH, AS WHERE STATE COURTS
USE UNCONSTITUTIONAL PROCEDURES TO CONVICT PEOPLE OR MAKE CRIMINAL WHAT
IS BEYOND THE REACH OF THE STATES.  I THINK OUR APPROACH HERE SHOULD BE
THAT OF MARSHALL IN MARBURY V. MADISON, 1 CRANCH 137, 177-178, WHERE
THE COURT SPOKE WITH AUTHORITY THOUGH THERE WAS AN OBVIOUSLY EASY WAY
TO AVOID SAYING ANYTHING: 

"IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT
TO SAY WHAT THE LAW IS. THOSE WHO APPLY THE RULE TO PARTICULAR CASES,
MUST OF NECESSITY EXPOUND AND INTERPRET THAT RULE.  IF TWO LAWS
CONFLICT WITH EACH OTHER, THE COURTS MUST DECIDE ON THE OPERATION OF
EACH. 

"SO IF A LAW BE IN OPPOSITION TO THE CONSTITUTION; IF BOTH THE LAW
AND THE CONSTITUTION APPLY TO A PARTICULAR CASE, SO THAT THE COURT MUST
EITHER DECIDE THAT CASE CONFORMABLY TO THE LAW, DISREGARDING THE
CONSTITUTION; OR CONFORMABLY TO THE CONSTITUTION, DISREGARDING THE LAW;
THE COURT MUST DETERMINE WHICH OF THESE CONFLICTING RULES GOVERNS THE
CASE.  THIS IS OF THE VERY ESSENCE OF JUDICIAL DUTY." 

WE HAVE IN THIS CASE A QUESTION THAT IS BASIC TO OUR WAY OF LIFE AND
FUNDAMENTAL IN OUR CONSTITUTIONAL SCHEME.  NO QUESTION PREOCCUPIES THE
COUNTRY MORE THAN THIS ONE; IT IS PLAINLY JUSTICIABLE; IT PRESSES FOR A
DECISION ONE WAY OR ANOTHER; WE SHOULD RESOLVE IT.  THE PEOPLE SHOULD
KNOW THAT WHEN FILIBUSTERS OCCUPY OTHER FORUMS, WHEN OPPRESSIONS ARE
GREAT, WHEN THE CLASH OF AUTHORITY BETWEEN THE INDIVIDUAL AND THE STATE
IS SEVERE, THEY CAN STILL GET JUSTICE IN THE COURTS.  WHEN WE DEFAULT,
AS WE DO TODAY, THE PRESTIGE OF LAW IN THE LIFE OF THE NATION IS
WEAKENED. 

FOR THESE REASONS I REACH THE MERITS; AND I VOTE TO REVERSE THE
JUDGMENTS OF CONVICTION OUTRIGHT. 

              II. 

THE ISSUE IN THIS CASE, ACCORDING TO THOSE WHO WOULD AFFIRM, IS
WHETHER A PERSON'S "PERSONAL PREJUDICES" MAY DICTATE THE WAY IN WHICH
HE USES HIS PROPERTY AND WHETHER HE CAN ENLIST THE AID OF THE STATE TO
ENFORCE THOSE "PERSONAL PREJUDICES."  WITH ALL RESPECT, THAT IS NOT THE
REAL ISSUE.  THE CORPORATION THAT OWNS THIS RESTAURANT DID NOT REFUSE
SERVICE TO THESE NEGROES BECAUSE "IT" DID NOT LIKE NEGROES.  THE REASON
"IT" REFUSED SERVICE WAS BECAUSE "IT" THOUGHT "IT" COULD MAKE MORE
MONEY BY RUNNING A SEGREGATED RESTAURANT. 

IN THE INSTANT CASE, G. CARROLL HOOPER, PRESIDENT OF THE CORPORATE
CHAIN OWNING THE RESTAURANT HERE INVOLVED, TESTIFIED CONCERNING THE
EPISODE THAT GAVE RISE TO THESE CONVICTIONS.  THE REASONS WERE WHOLLY
COMMERCIAL ONES:" 

"I SET AT THE TABLE WITH HIM AND TWO OTHER PEOPLE AND REASONED AND
TALKED TO HIM WHY MY POLICY WAS NOT YET ONE OF INTEGRATION AND TOLD HIM
THAT I HAD TWO HUNDRED EMPLOYEES AND HALF OF THEM WERE COLORED.  I
THOUGHT AS MUCH OF THEM AS I DID THE WHITE EMPLOYEES.  I INVITED THEM
BACK IN MY KITCHEN IF THEY'D LIKE TO GO BACK AND TALK TO THEM.  I
WANTED TO PROVE TO THEM IT WASN'T MY POLICY, MY PERSONAL PREJUDICE, WE
WERE NOT, THAT I HAD VALUABLE COLORED EMPLOYEES AND I THOUGHT JUST AS
MUCH OF THEM.  I TRIED TO REASON WITH THESE LEADERS, TOLD THEM THAT AS
LONG AS MY CUSTOMERS WERE THE DECIDING WHO THEY WANT TO EAT WITH, I'M
AT THE MERCY OF MY CUSTOMERS.  I'M TRYING TO DO WHAT THEY WANT.  IF
THEY FAIL TO COME IN, THESE PEOPLE ARE NOT PAYING MY EXPENSES, AND MY
BILLS.  THEY DIDN'T WANT TO GO BACK AND TALK TO MY COLORED EMPLOYEES
BECAUSE EVERY ONE OF THEM ARE IN SYMPATHY WITH ME AND THAT IS WE'RE IN
SYMPATHY WITH WHAT THEIR OBJECTIVES ARE, WITH WHAT THEY ARE TRYING TO
ABOLISH ...  ." 

HERE, AS IN MOST OF THE SIT-IN CASES BEFORE US, THE REFUSAL OF
SERVICE DID NOT REFLECT "PERSONAL PREJUDICES" BUT BUSINESS REASONS. 
(FN1)  WERE WE TODAY TO HOLD THAT SEGREGATED RESTAURANTS, WHOSE RACIAL
POLICIES WERE ENFORCED BY A STATE, VIOLATED THE EQUAL PROTECTION
CLAUSE, ALL RESTAURANTS WOULD BE ON AN EQUAL FOOTING AND THE REASONS
GIVEN IN THIS AND MOST OF THE COMPANION CASES FOR REFUSING SERVICE TO
NEGROES WOULD EVAPORATE.  MOREOVER, WHEN CORPORATE RESTAURATEURS ARE
INVOLVED, WHOSE "PERSONAL PREJUDICES" ARE BEING PROTECTED?  THE
STOCKHOLDERS'?  THE DIRECTORS'?  THE OFFICERS'?  THE MANAGERS'?  THE
TRUTH IS, I THINK, THAT THE CORPORATE INTEREST IS IN MAKING MONEY, NOT
IN PROTECTING "PERSONAL PREJUDICES." 

               III. 

I LEAVE THOSE QUESTIONS TO ANOTHER PART OF THIS OPINION (FN2)  AND
TURN TO AN EVEN MORE BASIC ISSUE. 

I NOW ASSUME THAT THE ISSUE IS THE ONE STATED BY THOSE WHO WOULD
AFFIRM.  THE CASE IN THAT POSTURE DEALS WITH A RELIC OF SLAVERY - AN
INSTITUTION THAT HAS CAST A LONG SHADOW ACROSS THE LAND, RESULTING
TODAY IN A SECOND-CLASS CITIZENSHIP IN THIS AREA OF PUBLIC
ACCOMMODATIONS. 

THE THIRTEENTH, FOURTEENTH, AND FIFTEENTH AMENDMENTS HAD "ONE
PERVADING PURPOSE  ...  WE MEAN THE FREEDOM OF THE SLAVE RACE, THE
SECURITY AND FIRM ESTABLISHMENT OF THAT FREEDOM, AND THE PROTECTION OF
THE NEWLY-MADE FREEMAN AND CITIZEN FROM THE OPPRESSION OF THOSE WHO HAD
FORMERLY EXERCISED UNLIMITED DOMINION OVER HIM."  SLAUGHTER-HOUSE
CASES, 16 WALL.  36, 71. 

PRIOR TO THOSE AMENDMENTS, NEGROES WERE SEGREGATED AND DISALLOWED THE
USE OF PUBLIC ACCOMMODATIONS EXCEPT AND UNLESS THE OWNERS CHOSE TO
SERVE THEM.  TO AFFIRM THESE JUDGMENTS WOULD REMIT THOSE NEGROES TO
THEIR OLD STATUS AND ALLOW THE STATES TO KEEP THEM THERE BY THE FORCE
OF THEIR POLICE AND THEIR JUDICIARY. 

WE DEAL HERE WITH PUBLIC ACCOMMODATIONS - WITH THE RIGHT OF PEOPLE TO
EAT AND TRAVEL AS THEY LIKE AND TO USE FACILITIES WHOSE ONLY CLAIM TO
EXISTENCE IS SERVING THE PUBLIC.  WHAT THE PRESIDENT SAID IN HIS STATE
OF THE UNION MESSAGE ON JANUARY 8, 1964, STATES THE CONSTITUTIONAL
RIGHT OF ALL AMERICANS, REGARDLESS OF RACE OR COLOR, TO BE TREATED
EQUALLY BY ALL BRANCHES OF GOVERNMENT: 

"TODAY AMERICANS OF ALL RACES STAND SIDE BY SIDE IN BERLIN AND IN
VIETNAM. 

"THEY DIED SIDE BY SIDE IN KOREA. 

"SURELY THEY CAN WORK AND EAT AND TRAVEL SIDE BY SIDE IN THEIR OWN
COUNTRY." 

THE BLACK CODES WERE A SUBSTITUTE FOR SLAVERY; SEGREGATION WAS A
SUBSTITUTE FOR THE BLACK CODES; (FN3) THE DISCRIMINATION IN THESE SIT
IN CASES IS A RELIC OF SLAVERY.  (FN4) 

THE FOURTEENTH AMENDMENT SAYS "NO STATE SHALL MAKE OR ENFORCE ANY LAW
WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE
UNITED STATES."  THE FOURTEENTH AMENDMENT ALSO MAKES EVERY PERSON WHO
IS BORN HERE A CITIZEN; AND THERE IS NO SECOND OR THIRD OR FOURTH CLASS
OF CITIZENSHIP.  SEE, E.G., SCHNEIDER V. RUSK, 377 U.S. 163, 168. 

WE DEAL HERE WITH INCIDENTS OF NATIONAL CITIZENSHIP.  AS STATED IN
THE SLAUGHTER-HOUSE CASES, 16 WALL.  36, 71-72, CONCERNING THE FEDERAL
RIGHTS RESTING ON THE THIRTEENTH, FOURTEENTH, AND FIFTEENTH
AMENDMENTS: 

"  ...  NO ONE CAN FAIL TO BE IMPRESSED WITH THE ONE PERVADING
PURPOSE FOUND IN THEM ALL, LYING AT THE FOUNDATION OF EACH, AND WITHOUT
WHICH NONE OF THEM WOULD HAVE BEEN EVEN SUGGESTED; WE MEAN THE FREEDOM
OF THE SLAVE RACE, THE SECURITY AND FIRM ESTABLISHMENT OF THAT FREEDOM,
AND THE PROTECTION OF THE NEWLY-MADE FREEMAN AND CITIZEN FROM THE
OPPRESSIONS OF THOSE WHO HAD FORMERLY EXERCISED UNLIMITED DOMINION OVER
HIM.  IT IS TRUE THAT ONLY THE FIFTEENTH AMENDMENT, IN TERMS, MENTIONS
THE NEGRO BY SPEAKING OF HIS COLOR AND HIS SLAVERY.  BUT IT IS JUST AS
TRUE THAT EACH OF THE OTHER ARTICLES WAS ADDRESSED TO THE GRIEVANCES OF
THAT RACE, AND DESIGNED TO REMEDY THEM AS THE FIFTEENTH." 

WHEN WE DEAL WITH AMENDMENTS TOUCHING THE LIBERATION OF PEOPLE FROM
SLAVERY, WE DEAL WITH RIGHTS "WHICH OWE THEIR EXISTENCE TO THE FEDERAL
GOVERNMENT, ITS NATIONAL CHARACTER, ITS CONSTITUTION, OR ITS LAWS." 
ID., AT 79.  WE ARE NOT IN THE FIELD OF EXCLUSIVE MUNICIPAL REGULATION
WHERE FEDERAL INTRUSION MIGHT "FETTER AND DEGRADE THE STATE GOVERNMENTS
BY SUBJECTING THEM TO THE CONTROL OF CONGRESS, IN THE EXERCISE OF
POWERS HERETOFORE UNIVERSALLY CONCEDED TO THEM OF THE MOST ORDINARY AND
FUNDAMENTAL CHARACTER."  ID., AT 78. 

THERE HAS BEEN A JUDICIAL RELUCTANCE TO EXPAND THE CONTENT OF
NATIONAL CITIZENSHIP BEYOND RACIAL DISCRIMINATION, VOTING RIGHTS, THE
RIGHT TO TRAVEL, SAFE CUSTODY IN THE HANDS OF A FEDERAL MARSHAL,
DIPLOMATIC PROTECTION ABROAD, AND THE LIKE.  SEE SLAUGHTER-HOUSE CASES,
SUPRA; LOGAN V. UNITED STATES, 144 U.S. 263; UNITED STATES V. CLASSIC,
313 U.S. 299; EDWARDS V. CALIFORNIA, 314 U.S. 160; KENT V. DULLES, 357
U.S. 116.  THE RELUCTANCE HAS BEEN DUE TO A FEAR OF CREATING
CONSTITUTIONAL REFUGES FOR A HOST OF RIGHTS HISTORICALLY SUBJECT TO
REGULATION.  SEE MADDEN V. KENTUCKY, 309 U.S. 83, OVERRULING COLGATE V.
HARVEY, 296 U.S. 404.  BUT THOSE FEARS HAVE NO RELEVANCE HERE, WHERE WE
DEAL WITH AMENDMENTS WHOSE DOMINANT PURPOSE WAS TO GUARANTEE THE
FREEDOM OF THE SLAVE RACE AND ESTABLISH A REGIME WHERE NATIONAL
CITIZENSHIP HAS ONLY ONE CLASS.    THE MANNER IN WHICH THE RIGHT TO BE
SERVED IN PLACES OF PUBLIC ACCOMMODATIONS IS AN INCIDENT OF NATIONAL
CITIZENSHIP AND OF THE RIGHT TO TRAVEL IS SUMMARIZED IN H.R. REP.  NO.
914, PT. 2, 88TH CONG., 1ST SESS., PP. 7-8: 

"AN OFFICIAL OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, TESTIFIED BEFORE THE SENATE COMMERCE SUBCOMMITTEE AS
FOLLOWS: 

"'FOR MILLIONS OF AMERICANS THIS IS VACATION TIME.  SWARMS OF
FAMILIES LOAD THEIR AUTOMOBILES AND TREK ACROSS COUNTRY.  I INVITE THE
MEMBERS OF THIS COMMITTEE TO IMAGINE THEMSELVES DARKER IN COLOR AND TO
PLAN AN AUTO TRIP FROM NORFOLK, VA., TO THE GULF COAST OF MISSISSIPPI,
SAY, TO BILOXI.  OR ONE FROM TERRE HAUTE, IND., TO CHARLESTON, S.C., OR
FROM JACKSONVILLE, FLA., TO TYLER, TEX. 

"'HOW FAR DO YOU DRIVE EACH DAY?  WHERE AND UNDER WHAT CONDITIONS CAN
YOU AND YOUR FAMILY EAT?  WHERE CAN THEY USE A REST ROOM?  CAN YOU STOP
DRIVING AFTER A REASONABLE DAY BEHIND THE WHEEL OR MUST YOU DRIVE UNTIL
YOU REACH A CITY WHERE RELATIVES OR FRIENDS WILL ACCOMMODATE YOU AND
YOURS FOR THE NIGHT?  WILL YOUR CHILDREN BE DENIED A SOFT DRINK OR AN
ICE CREAM CONE BECAUSE THEY ARE NOT WHITE?' 

"IN RESPONSE TO SENATOR PASTORE'S QUESTION AS TO WHAT THE NEGRO MUST
DO, THERE WAS THE REPLY: 

"'WHERE YOU TRAVEL THROUGH WHAT WE MIGHT CALL HOSTILE TERRITORY YOU
TAKE YOUR CHANCES.  YOU DRIVE AND YOU DRIVE AND YOU DRIVE.  YOU DON'T
STOP WHERE THERE IS A VACANCY SIGN OUT AT A MOTEL AT 4 O'CLOCK IN THE
AFTERNOON AND REST YOURSELF; YOU KEEP ON DRIVING UNTIL THE NEXT CITY OR
THE NEXT TOWN WHERE YOU KNOW SOMEBODY OR THEY KNOW SOMEBODY WHO KNOWS
SOMEBODY WHO CAN TAKE CARE OF YOU. 

"'THIS IS THE WAY YOU PLAN IT. 

"'SOME OF THEM DON'T GO.' 

"DAILY WE PERMIT CITIZENS OF OUR NATION TO BE HUMILIATED AND
SUBJECTED TO HARDSHIP AND ABUSE SOLELY BECAUSE OF THEIR COLOR." 

AS STATED IN THE FIRST PART OF THE SAME REPORT, P. 18: 

"TODAY, MORE THAN 100 YEARS AFTER THEIR FORMAL EMANCIPATION, NEGROES,
WHO MAKE UP OVER 10 PERCENT OF OUR POPULATION, ARE BY VIRTUE OF ONE OR
ANOTHER TYPE OF DISCRIMINATION NOT ACCORDED THE RIGHTS, PRIVILEGES, AND
OPPORTUNITIES WHICH ARE CONSIDERED TO BE, AND MUST BE, THE BIRTHRIGHT
OF ALL CITIZENS." 

WHEN ONE CITIZEN BECAUSE OF HIS RACE, CREED, OR COLOR IS DENIED THE
PRIVILEGE OF BEING TREATED AS ANY OTHER CITIZEN IN PLACES OF PUBLIC
ACCOMMODATION, WE HAVE CLASSES OF CITIZENSHIP, ONE BEING MORE DEGRADING
THAN THE OTHER.  THAT IS AT WAR WITH THE ONE CLASS OF CITIZENSHIP
CREATED BY THE THIRTEENTH, FOURTEENTH, AND FIFTEENTH AMENDMENTS. 

AS STATED IN EX PARTE VIRGINIA, 100 U.S. 339, 344-345, WHERE A
FEDERAL INDICTMENT AGAINST A STATE JUDGE FOR DISCRIMINATING AGAINST
NEGROES IN THE SELECTION OF JURORS WAS UPHELD: 

"ONE GREAT PURPOSE OF THESE AMENDMENTS WAS TO RAISE THE COLORED RACE
FROM THAT CONDITION OF INFERIORITY AND SERVITUDE IN WHICH MOST OF THEM
HAD PREVIOUSLY STOOD, INTO PERFECT EQUALITY OF CIVIL RIGHTS WITH ALL
OTHER PERSONS WITHIN THE JURISDICTION OF THE STATES.  THEY WERE
INTENDED TO TAKE AWAY ALL POSSIBILITY OF OPPRESSION BY LAW BECAUSE OF
RACE OR COLOR.  THEY WERE INTENDED TO BE, WHAT THEY REALLY ARE,
LIMITATIONS OF THE POWER OF THE STATES AND ENLARGEMENTS OF THE POWER OF
CONGRESS." 

                                        IV. 

THE PROBLEM IN THIS CASE, AND IN THE OTHER SIT-IN CASES BEFORE US, IS
PRESENTED AS THOUGH IT INVOLVED THE SITUATION OF "A PRIVATE OPERATOR
CONDUCTING HIS OWN BUSINESS ON HIS OWN PREMISES AND EXERCISING HIS OWN
JUDGMENT" (FN5) AS TO WHOM HE WILL ADMIT TO THE PREMISES. 

THE PROPERTY INVOLVED IS NOT, HOWEVER, A MAN'S HOME OR HIS YARD OR
EVEN HIS FIELDS.  PRIVATE PROPERTY IS INVOLVED, BUT IT IS PROPERTY THAT
IS SERVING THE PUBLIC.  AS MY BROTHER GOLDBERG SAYS, IT IS A "CIVIL"
RIGHT, NOT A "SOCIAL" RIGHT, WITH WHICH WE DEAL.  HERE IT IS A
RESTAURANT REFUSING SERVICE TO A NEGRO.  BUT SO FAR AS PRINCIPLE AND
LAW ARE CONCERNED IT MIGHT JUST AS WELL BE A HOSPITAL REFUSING
ADMISSION TO A SICK OR INJURED NEGRO (CF. SIMKINS V. MOSES H. CONE
MEMORIAL HOSPITAL, 323 F.2D 959), OR A DRUGSTORE REFUSING ANTIBIOTICS
TO A NEGRO, OR A BUS DENYING TRANSPORTATION TO A NEGRO, OR A TELEPHONE
COMPANY REFUSING TO INSTALL A TELEPHONE IN A NEGRO'S HOME. 

THE PROBLEM WITH WHICH WE DEAL HAS NO RELATION TO OPENING OR CLOSING
THE DOOR OF ONE'S HOME.  THE HOME OF COURSE IS THE ESSENCE OF PRIVACY,
IN NO WAY DEDICATED TO PUBLIC USE, IN NO WAY EXTENDING AN INVITATION TO
THE PUBLIC.  SOME BUSINESSES, LIKE THE CLASSICAL COUNTRY STORE WHERE
THE OWNER LIVES OVERHEAD OR IN THE REAR, MAKE THE STORE AN EXTENSION,
SO TO SPEAK, OF THE HOME.  BUT SUCH IS NOT THIS CASE.  THE FACTS OF
THESE SIT-IN CASES HAVE LITTLE RESEMBLANCE TO ANY INSTITUTION OF
PROPERTY WHICH WE CUSTOMARILY ASSOCIATE WITH PRIVACY. 

JOSEPH H. CHOATE, WHO ARGUED THE INCOME TAX CASES (POLLOCK V.
FARMERS' LOAN & TRUST CO., 157 U.S. 429, 534), SAID: 

"I HAVE THOUGHT THAT ONE OF THE FUNDAMENTAL OBJECTS OF ALL CIVILIZED
GOVERNMENT WAS THE PRESERVATION OF THE RIGHTS OF PRIVATE PROPERTY.  I
HAVE THOUGHT THAT IT WAS THE VERY KEYSTONE OF THE ARCH UPON WHICH ALL
CIVILIZED GOVERNMENT RESTS, AND THAT THIS ONCE ABANDONED, EVERYTHING
WAS AT STAKE AND IN DANGER.  THAT IS WHAT MR. WEBSTER SAID IN 1820, AT
PLYMOUTH, AND I SUPPOSED THAT ALL EDUCATED, CIVILIZED MEN BELIEVED IN
THAT." 

CHARLES A. BEARD HAD THE THEORY THAT THE CONSTITUTION WAS "AN
ECONOMIC DOCUMENT DRAWN WITH SUPERB SKILL BY MEN WHOSE PROPERTY
INTERESTS WERE IMMEDIATELY AT STAKE."  AN ECONOMIC INTERPRETATION OF
THE CONSTITUTION OF THE UNITED STATES (1939), P. 188.  THAT SCHOOL OF
THOUGHT WOULD RECEIVE NEW IMPETUS FROM AN AFFIRMANCE OF THESE
JUDGMENTS.  SELDOM HAVE MODERN CASES (CF. THE ILLSTARRED DRED SCOTT
DECISION, 19 HOW.  393) SO EXALTED PROPERTY IN SUPPRESSION OF
INDIVIDUAL RIGHTS.  WE WOULD REVERSE THE MODERN TREND WERE WE TO HOLD
THAT PROPERTY VOLUNTARILY SERVING THE PUBLIC CAN RECEIVE STATE
PROTECTION WHEN THE OWNER REFUSES TO SERVE SOME SOLELY BECAUSE THEY ARE
COLORED. 

THERE IS NO SPECIFIC PROVISION IN THE CONSTITUTION WHICH PROTECTS
RIGHTS OF PRIVACY AND ENABLES RESTAURANT OWNERS TO REFUSE SERVICE TO
NEGROES.  THE WORD "PROPERTY" IS, INDEED, NOT OFTEN USED IN THE
CONSTITUTION, THOUGH AS A MATTER OF EXPERIENCE AND PRACTICE WE ARE
COMMITTED TO FREE ENTERPRISE.   THE FIFTH AMENDMENT MAKES IT POSSIBLE
TO TAKE "PRIVATE PROPERTY" FOR PUBLIC USE ONLY ON PAYMENT OF "JUST
COMPENSATION."  THE BAN ON QUARTERING SOLDIERS IN ANY HOME IN TIME OF
PEACE, LAID DOWN BY THE THIRD AMENDMENT, IS ONE ASPECT OF THE RIGHT OF
PRIVACY.  THE FOURTH AMEMDMENT IN ITS RESTRICTIONS ON SEARCHES AND
SEIZURES ALSO SETS AN AURA OF PRIVACY AROUND PRIVATE INTERESTS.  AND
THE DUE PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS LAY DOWN
THE COMMAND THAT NO PERSON SHALL BE DEPRIVED "OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW."  FROM THESE PROVISIONS THOSE WHO
WOULD AFFIRM FIND EMANATIONS THAT LEAD THEM TO THE CONCLUSION THAT THE
PRIVATE OWNER OF A RESTAURANT SERVING THE PUBLIC CAN PICK AND CHOOSE
WHOM HE WILL SERVE AND RESTRICT HIS DINING ROOM TO WHITES ONLY. 

APARTHEID, HOWEVER, IS BARRED BY THE COMMON LAW AS RESPECTS
INNKEEPERS AND COMMON CARRIERS.  THERE WERE, TO BE SURE, CRIMINAL
STATUTES THAT REGULATED THE COMMON CALLINGS.  BUT THE CIVIL REMEDIES
WERE MADE BY JUDGES WHO HAD NO WRITTEN CONSTITUTION.  WE, ON THE OTHER
HAND, LIVE UNDER A CONSTITUTION THAT PROCLAIMS EQUAL PROTECTION UNDER
THE LAW.  WHY THEN, EVEN IN THE ABSENCE OF A STATUTE, SHOULD APARTHEID
BE GIVEN CONSTITUTIONAL SANCTION IN THE RESTAURANT FIELD?  THAT WAS THE
QUESTION I ASKED IN LOMBARD V. LOUISIANA, 373 U.S. 267.  I REPEAT IT
HERE.  CONSTITUTIONALLY SPEAKING, WHY SHOULD HOOPER FOOD CO., INC., OR
PEOPLES DRUG STORES - OR ANY OTHER ESTABLISHMENT THAT DISPENSES FOOD OR
MEDICINES - STAND ON A HIGHER, MORE SANCTIFIED LEVEL THAN GREYHOUND BUS
WHEN IT COMES TO A CONSTITUTIONAL RIGHT TO PICK AND CHOOSE ITS
CUSTOMERS? 

THE DEBATES ON THE FOURTEENTH AMENDMENT SHOW, AS MY BROTHER GOLDBERG
POINTS OUT, THAT ONE OF ITS PURPOSES WAS TO GRANT THE NEGRO "THE RIGHTS
AND GUARANTEES OF THE GOOD OLD COMMON LAW."  POST, AT 294.  THE DUTY OF
COMMON CARRIERS TO CARRY ALL, REGARDLESS OF RACE, CREED, OR COLOR, WAS
IN PART THE PRODUCT OF THE INVENTIVE GENIUS OF JUDGES.  SEE LOMBARD V.
LOUISIANA, 373 U.S., AT 275-277.  WE SHOULD MAKE THAT BODY OF LAW THE
COMMON LAW OF THE THIRTEENTH AND FOURTEENTH AMENDMENTS SO TO SPEAK. 
RESTAURANTS IN THE MODERN SETTING ARE AS ESSENTIAL TO TRAVELERS AS INNS
AND CARRIERS. 

ARE THEY NOT AS MUCH AFFECTED WITH A PUBLIC INTEREST?  IS THE RIGHT
OF A PERSON TO EAT LESS BASIC THAN HIS RIGHT TO TRAVEL, WHICH WE
PROTECTED IN EDWARDS V. CALIFORNIA, 314 U.S. 160?  DOES NOT A RIGHT TO
TRAVEL IN MODERN TIMES SHRINK IN VALUE MATERIALLY WHEN THERE IS NO
ACCOMPANYING RIGHT TO EAT IN PUBLIC PLACES? 

THE RIGHT OF ANY PERSON TO TRAVEL INTERSTATE IRRESPECTIVE OF RACE,
CREED, OR COLOR IS PROTECTED BY THE CONSTITUTION.  EDWARDS V.
CALIFORNIA, SUPRA.  CERTAINLY HIS RIGHT TO EAT AT PUBLIC RESTAURANTS IS
AS IMPORTANT IN THE MODERN SETTING AS THE RIGHT OF MOBILITY.  IN THESE
TIMES THAT RIGHT IS, INDEED, PRACTICALLY INDISPENSABLE TO TRAVEL EITHER
INTERSTATE OR INTRASTATE. 

                                        V. 

THE REQUIREMENT OF EQUAL PROTECTION, LIKE THE GUARANTEE OF PRIVILEGES
AND IMMUNITIES OF CITIZENSHIP, IS A CONSTITUTIONAL COMMAND DIRECTED TO
EACH STATE. 

STATE JUDICIAL ACTION IS AS CLEARLY "STATE" ACTION AS STATE
ADMINISTRATIVE ACTION.  INDEED, WE HELD IN SHELLEY V. KRAEMER, 334 U.S.
1, 20, THAT "STATE ACTION, AS THAT PHRASE IS UNDERSTOOD FOR THE
PURPOSES OF THE FOURTEENTH AMENDMENT, REFERS TO EXERTIONS OF STATE
POWER IN ALL FORMS." 

THAT CASE INVOLVED SUITS IN STATE COURTS TO ENFORCE RESTRICTIVE
COVENANTS IN DEEDS OF RESIDENTIAL PROPERTY WHEREBY THE OWNER AGREED
THAT IT SHOULD NOT BE USED OR OCCUPIED BY ANY PERSON EXCEPT A
CAUCASIAN.  THERE WAS NO STATE STATUTE REGULATING THE MATTER.  THAT IS,
THE STATE HAD NOT AUTHORIZED BY LEGISLATIVE ENACTMENT THE USE OF
RESTRICTIVE COVENANTS IN RESIDENTIAL PROPERTY TRANSACTIONS; NOR WAS
THERE ANY ADMINISTRATIVE REGULATION OF THE MATTER.  ONLY THE COURTS OF
THE STATE WERE INVOLVED.  WE HELD WITHOUT DISSENT IN AN OPINION WRITTEN
BY CHIEF JUSTICE VINSON THAT THERE WAS NONETHELESS STATE ACTION WITHIN
THE MEANING OF THE FOURTEENTH AMENDMENT: 

"THE SHORT OF THE MATTER IS THAT FROM THE TIME OF THE ADOPTION OF THE
FOURTEENTH AMENDMENT UNTIL THE PRESENT, IT HAS BEEN THE CONSISTENT
RULING OF THIS COURT THAT THE ACTION OF THE STATES TO WHICH THE
AMENDMENT HAS REFERENCE INCLUDES ACTION OF STATE COURTS AND STATE
JUDICIAL OFFICIALS.  ALTHOUGH, IN CONSTRUING THE TERMS OF THE
FOURTEENTH AMENDMENT, DIFFERENCES HAVE FROM TIME TO TIME BEEN EXPRESSED
AS TO WHETHER PARTICULAR TYPES OF STATE ACTION MAY BE SAID TO OFFEND
THE AMENDMENT'S PROHIBITORY PROVISIONS, IT HAS NEVER BEEN SUGGESTED
THAT STATE COURT ACTION IS IMMUNIZED FROM THE OPERATION OF THOSE
PROVISIONS SIMPLY BECAUSE THE ACT IS THAT OF THE JUDICIAL BRANCH OF THE
STATE GOVERNMENT."  ID., AT 18. 

AT THE TIME OF THE SHELLEY CASE THERE WAS TO BE SURE A CONGRESSIONAL
CIVIL RIGHTS ACT THAT GUARANTEED ALL CITIZENS THE SAME RIGHT TO
PURCHASE AND SELL PROPERTY "AS IS ENJOYED BY WHITE CITIZENS."  ID., AT
11.  BUT THE EXISTENCE OF THAT STATUTORY RIGHT, LIKE THE EXISTENCE OF A
RIGHT UNDER THE CONSTITUTION, IS NO CRITERION FOR DETERMINING WHAT IS
OR WHAT IS NOT "STATE" ACTION WITHIN THE MEANING OF THE FOURTEENTH
AMENDMENT.  THE CONCEPTION OF "STATE" ACTION HAS BEEN CONSIDERED IN
LIGHT OF THE DEGREE TO WHICH A STATE HAS PARTICIPATED IN DEPRIVING A
PERSON OF A RIGHT.  "JUDICIAL" ACTION ALONE HAS BEEN CONSIDERED AMPLE
IN HUNDREDS OF CASES.  THUS, "STATE ACTION" TOOK PLACE ONLY BY JUDICIAL
ACTION IN CASES INVOLVING THE USE OF COERCED CONFESSIONS (E.G.,
CHAMBERS V. FLORIDA, 309 U.S. 227), THE DENIAL TO INDIGENTS OF EQUAL
PROTECTION IN JUDICIAL PROCEEDINGS (E.G., GRIFFIN V. ILLINOIS, 351 U.S.
12), AND THE ACTION OF STATE COURTS IN PUNISHING FOR CONTEMPT BY
PUBLICATION (E.G., BRIDGES V. CALIFORNIA, 314 U.S. 252). 

MARYLAND'S ACTION AGAINST THESE NEGROES WAS AS AUTHORITATIVE AS ANY
CASE WHERE THE STATE IN ONE WAY OR ANOTHER PUTS ITS FULL FORCE BEHIND A
POLICY.  THE POLICY HERE WAS SEGREGATION IN PLACES OF PUBLIC
ACCOMMODATION; AND MARYLAND ENFORCED THAT POLICY WITH HER POLICE, HER
PROSECUTORS, AND HER COURTS. 

THE OWNERS OF THE RESIDENTIAL PROPERTY IN SHELLEY V. KRAEMER WERE
CONCERNED, AS WAS THE CORPORATE OWNER OF THIS MARYLAND RESTAURANT, OVER
A POSSIBLE DECREASE IN THE VALUE OF THE PROPERTY IF NEGROES WERE
ALLOWED TO ENTER.  IT WAS TESTIFIED IN SHELLEY V. KRAEMER THAT WHITE
PURCHASERS GOT BETTER BANK LOANS THAN NEGRO PURCHASERS: 

"A.  WELL, I BOUGHT 1238 NORTH OBERT, A 4-FAMILY FLAT, ABOUT A YEAR
AGO THROUGH A STRAW PARTY, AND I WAS ENABLED TO SECURE A MUCH LARGER
FIRST DEED OF TRUST THAN I WOULD HAVE BEEN ABLE TO DO AT THE PRESENT
HOME ON GARFIELD. 

"THE COURT:  I UNDERSTAND WHAT YOU MEAN:  IT'S EASIER TO FINANCE? 

"A.  YES, EASIER TO FINANCE THROUGH WHITE.  THAT'S COMMON KNOWLEDGE. 

"Q.  YOU MEAN IF PROPERTY IS OWNED BY A WHITE PERSON IT'S EASIER TO
FINANCE IT? 

"A.  WHITE CAN SECURE LARGER LOANS, BETTER LOANS.  I HAVE A 5%
LOAN." 

IN MCGHEE V. SIPES, A COMPANION CASE TO SHELLEY V. KRAEMER, A REALTOR
TESTIFIED: 

"I HAVE SEEN THE RESULT OF INFLUX OF COLORED PEOPLE MOVING INTO A
WHITE NEIGHBORHOOD.  THERE IS A DEPRESSION OF VALUES TO START WITH,
GENERAL RUN DOWN OF THE NEIGHBORHOOD WITHIN A SHORT TIME AFTERWARDS.  I
HAVE, HOWEVER, SEEN ONE EXCEPTION.  THE COLORED PEOPLE ON SCOTTEN,
SOUTH OF TIREMAN HAVE KEPT UP THEIR PROPERTY PRETTY GOOD AND ENJOYED
THEM.  AS A RESULT OF THIS PARTICULAR FAMILY MOVING IN THE PEOPLE IN
THE SECTION ARE RATHER PANIC-STRICKEN AND THEY ARE WILLING TO SELL -
THE ONLY THING THAT IS KEEPING THEM FROM THROWING THEIR STUFF ON THE
MARKET AND GIVING IT AWAY IS THE FACT THAT THEY THINK THEY CAN GET ONE
OR TWO COLORED PEOPLE IN THERE OUT OF THERE.  MY OWN SALES HAVE BEEN
AFFECTED BY THIS FAMILY  ...  .    "I AM FAMILIAR WITH THE PROPERTY AT
4626 SEEBALDT, AND THE VALUE OF IT WITH A COLORED FAMILY IN IT IS FIFTY
TWO HUNDRED, AND IF THERE WAS NO COLORED FAMILY IN IT I WOULD SAY SIXTY
EIGHT HUNDRED.  I WOULD SAY SEVEN THOUSAND IS A FAIR PRICE FOR THAT
PROPERTY." 

WHILE THE PURPOSE OF THE RESTRICTIVE COVENANT IS IN PART TO PROTECT
THE COMMERCIAL VALUES IN A "CLOSED" COMMUNITY (SEE HUNDLEY V. GOREWITZ,
77 U.S. APP. D.C. 48, 132 F.2D 23, 24), IT AT TIMES INVOLVES MORE.  THE
SALE TO A NEGRO MAY BRING A HIGHER PRICE THAN A SALE TO A WHITE.  SEE
SWAIN V. MAXWELL, 355 MO. 448, 454, 196 S.W.2D 780, 785.  YET THE
RESISTANCE TO HAVING A NEGRO AS A NEIGHBOR IS OFTEN STRONG.  ALL-WHITE
OR ALL-CAUCASIAN RESIDENTIAL COMMUNITIES ARE OFTEN PREFERRED BY THE
OWNERS. 

AN OCCUPANT OF A "WHITE" AREA TESTIFIED IN HURD V. HODGE, 334 U.S.
24, ANOTHER COMPANION CASE TO SHELLEY V. KRAEMER: 

"  ...  WE FEEL BITTER TOWARDS YOU FOR COMING IN AND BREAKING UP OUR
BLOCK.  WE WERE VERY PEACEFUL AND HARMONIOUS THERE AND WE FEEL THAT YOU
BOUGHT THAT PROPERTY JUST TO TRANSACT IT OVER TO COLORED PEOPLE AND WE
DON'T LIKE IT, AND NATURALLY WE FEEL BITTER TOWARDS YOU  ...  ." 

THIS WITNESS ADDED: 

"A.  THE COMPLEXION OF THE PERSON DOESN'T MEAN ANYTHING. 

"Q.  THE COMPLEXION DOES NOT? 

"A.  IT IS A FACT THAT HE IS A NEGRO. 

"Q.  I SEE, SO NO MATTER HOW BROWN A NEGRO MAY BE, NO MATTER HOW
WHITE THEY ARE, YOU OBJECT TO THEM? 

"A.  I WOULD SAY YES, MR. HOUSTON.    ...  I WANT TO LIVE WITH MY OWN
COLOR PEOPLE." 

THE PREFERENCES INVOLVED IN SHELLEY V. KRAEMER AND ITS COMPANION
CASES WERE FAR MORE PERSONAL THAN THE MOTIVATIONS OF THE CORPORATE
MANAGERS IN THE PRESENT CASE WHEN THEY DECLINED SERVICE TO NEGROES. 
WHY SHOULD WE REFUSE TO LET STATE COURTS ENFORCE APARTHEID IN
RESIDENTIAL AREAS OF OUR CITIES BUT LET STATE COURTS ENFORCE APARTHEID
IN RESTAURANTS?  IF A COURT DECREE IS STATE ACTION IN ONE CASE, IT IS
IN THE OTHER.  PROPERTY RIGHTS, SO HEAVILY UNDERSCORED, ARE EQUALLY
INVOLVED IN EACH CASE. 

THE CUSTOMER IN A RESTAURANT IS TRANSITORY; HE COMES AND MAY NEVER
RETURN.  THE COLORED FAMILY WHO BUYS THE HOUSE NEXT DOOR IS THERE FOR
KEEPS - NIGHT AND DAY.  IF "PERSONAL PREJUDICES" ARE NOT TO BE THE
CRITERION IN ONE CASE THEY SHOULD NOT BE IN THE OTHER.  WE SHOULD PUT
THESE RESTAURANT CASES IN LINE WITH SHELLEY V. KRAEMER, HOLDING THAT
WHAT THE FOURTEENTH AMENDMENT REQUIRES IN RESTRICTIVE COVENANT CASES IT
ALSO REQUIRES FROM RESTAURANTS. 

SEGREGATION OF NEGROES IN THE RESTAURANTS AND LUNCH COUNTERS OF PARTS
OF AMERICA IS A RELIC OF SLAVERY.  IT IS A BADGE OF SECOND-CLASS
CITIZENSHIP.  IT IS A DENIAL OF A PRIVILEGE AND IMMUNITY OF NATIONAL
CITIZENSHIP AND OF THE EQUAL PROTECTION GUARANTEED BY THE FOURTEENTH
AMENDMENT AGAINST ABRIDGMENT BY THE STATES.  WHEN THE STATE POLICE, THE
STATE PROSECUTOR, AND THE STATE COURTS UNITE TO CONVICT NEGROES FOR
RENOUNCING THAT RELIC OF SLAVERY, THE "STATE" VIOLATES THE FOURTEENTH
AMENDMENT. 

I WOULD REVERSE THESE JUDGMENTS OF CONVICTION OUTRIGHT, AS THESE
NEGROES IN ASKING FOR SERVICE IN HOOPER'S RESTAURANT WERE ONLY
DEMANDING WHAT WAS THEIR CONSTITUTIONAL RIGHT. 

FN1  SEE APPENDIX II. 

FN2  SEE APPENDIX I. 

FN3  FOR ACCOUNTS OF THE BLACK CODES SEE FLEMING, THE SEQUEL OF
APPOMATTOX (1919), PP. 94-98; SEN. EX. DOC. NO. 6, 39TH CONG., 2D
SESS.; I OBERHOLTZER, A HISTORY OF THE UNITED STATES SINCE THE CIVIL
WAR (1917), PP. 126-127, 136-137, 175.  THEY ARE SUMMARIZED AS FOLLOWS
BY MORISON AND COMMAGER, THE GROWTH OF THE AMERICAN REPUBLIC (1950),
PP. 17-18: 

"THESE BLACK CODES PROVIDED FOR RELATIONSHIPS BETWEEN THE WHITES AND
THE BLACKS IN HARMONY WITH REALITIES - AS THE WHITES UNDERSTOOD THEM -
RATHER THAN WITH ABSTRACT THEORY.  THEY CONFERRED UPON THE FREEDMEN
FAIRLY EXTENSIVE PRIVILEGES, GAVE THEM THE ESSENTIAL RIGHTS OF CITIZENS
TO CONTRACT, SUE AND BE SUED, OWN AND INHERIT PROPERTY, AND TESTIFY IN
COURT, AND MADE SOME PROVISION FOR EDUCATION.  IN NO INSTANCE WERE THE
FREEDMEN ACCORDED THE VOTE OR MADE ELIGIBLE FOR JURIES, AND FOR THE
MOST PART THEY WERE NOT PERMITTED TO TESTIFY AGAINST WHITE MEN. 
BECAUSE OF THIER ALLEGED AVERSION TO STEADY WORK THEY WERE REQUIRED TO
HAVE SOME STEADY OCCUPATION, AND SUBJECTED TO SPECIAL PENALTIES FOR
VIOLATION OF LABOR CONTRACTS.  VAGRANCY AND APPRENTICESHIP LAWS WERE
ESPECIALLY HARSH, AND LENT THEMSELVES READILY TO THE ESTABLISHMENT OF A
SYSTEM OF PEONAGE.  THE PENAL CODES PROVIDED HARSHER AND MORE ARBITRARY
PUNISHMENTS FOR BLACKS THAN FOR WHITES, AND SOME STATES PERMITTED
INDIVIDUAL MASTERS TO ADMINISTER CORPORAL PUNISHMENT TO 'REFRACTORY
SERVANTS.'  NEGROES WERE NOT ALLOWED TO BEAR ARMS OR TO APPEAR IN ALL
PUBLIC PLACES, AND THERE WERE SPECIAL LAWS GOVERNING THE DOMESTIC
RELATIONS OF THE BLACKS.  IN SOME STATES LAWS CLOSING TO THE FREEDMEN
EVERY OCCUPATION SAVE DOMESTIC AND AGRICULTURAL SERVICE, BETRAYED A
POOR-WHITE JEALOUSY OF THE NEGRO ARTISAN.  MOST CODES, HOWEVER,
INCLUDED SPECIAL PROVISIONS TO PROTECT THE NEGRO FROM UNDUE
EXPLOITATION AND SWINDLING.  ON THE WHOLE THE BLACK CODES CORRESPONDED
FAIRLY CLOSELY TO THE ESSENTIAL FACT THAT NEARLY FOUR MILLION EX-SLAVES
NEEDED SPECIAL ATTENTION UNTIL THEY WERE READY TO MINGLE IN FREE
SOCIETY ON MORE EQUAL TERMS.  BUT IN SUCH STATES AS SOUTH CAROLINA AND
MISSISSIPPI THERE WAS CLEARLY EVIDENT A DESIRE TO KEEP THE FREEDMEN IN
A PERMANENT POSITION OF TUTELAGE, IF NOT OF PEONAGE." 

FN4  OTHER "RELICS OF SLAVERY" HAVE RECENTLY COME BEFORE THIS COURT. 
IN HAMILTON V. ALABAMA, 376 U.S. 650, WE REVERSED A JUDGMENT OF
CONTEMPT IMPOSED ON A NEGRO WITNESS UNDER THESE CIRCUMSTANCES: 

"CROSS EXAMINATION BY SOLICITOR RAYBURN: 

"Q.  WHAT IS YOUR NAME, PLEASE? 

"A.  MISS MARY HAMILTON. 

"Q.  MARY, I BELIEVE - YOU WERE ARRESTED - WHO WERE YOU ARRESTED BY? 

"A.  MY NAME IS MISS HAMILTON.  PLEASE ADDRESS ME CORRECTLY. 

"Q.  WHO WERE YOU ARRESTED BY, MARY? 

"A.  I WILL NOT ANSWER A QUESTION. 

"BY ATTORNEY AMAKER:  THE WITNESS'S NAME IS MISS HAMILTON. 

"A.  - YOUR QUESTION UNTIL I AM ADDRESSED CORRECTLY. 

"THE COURT:  ANSWER THE QUESTION. 

"THE WITNESS:  I WILL NOT ANSWER THEM UNLESS I AM ADDRESSED
CORRECTLY. 

"THE COURT:  YOU ARE IN CONTEMPT OF COURT. 

"ATTORNEY CONLEY:  YOUR HONOR - YOUR HONOR: 

"THE COURT:  YOU ARE IN CONTEMPT OF THIS COURT, AND YOU ARE SENTENCED
TO FIVE DAYS IN JAIL AND A FIFTY DOLLAR FINE." 

ADDITIONAL RELICS OF SLAVERY ARE MIRRORED IN RECENT DECISIONS:  BROWN
V. BOARD OF EDUCATION, 347 U.S. 483 (SEGREGATED SCHOOLS); JOHNSON V.
VIRGINIA, 373 U.S. 61 (SEGREGATED COURTROOM); PETERSON V. GREENVILLE,
373 U.S. 244, AND LOMBARD V. LOUISIANA, 373 U.S. 267 (SEGREGATED
RESTAURANTS); WRIGHT V. GEORGIA, 373 U.S. 284, AND WATSON V. MEMPHIS,
373 U.S. 526 (SEGREGATED PUBLIC PARKS). 

FN5  WRIGHT, THE SIT-IN MOVEMENT:  PROGRESS REPORT AND PROGNOSIS, 9
WAYNE L. REV. 445, 450 (1963). 

                 APPENDIX I TO OPINION OF MR. JUSTICE DOUGLAS. 

IN THE SIT-IN CASES INVOLVING EATING PLACES LAST TERM AND THIS TERM,
PRACTICALLY ALL RESTAURANT OR LUNCH COUNTER OWNERS WHOSE CONSTITUTIONAL
RIGHTS WERE VINDICATED BELOW ARE CORPORATIONS.  ONLY TWO OUT OF THE 20
BEFORE US ARE NONCORPORATE, AS APPENDIX III SHOWS.  SOME OF THESE
CORPORATIONS ARE SMALL, PRIVATELY OWNED AFFAIRS.  OTHERS ARE LARGE,
NATIONAL OR REGIONAL BUSINESSES WITH MANY STOCKHOLDERS: 

S.H. KRESS & CO., OPERATING 272 STORES IN 30 STATES, ITS STOCK BEING
LISTED ON THE NEW YORK STOCK EXCHANGE; MCCRORY CORPORATION, WITH 1,307
STORES, ITS STOCK BEING LISTED ON THE NEW YORK STOCK EXCHANGE; J.J.
NEWBERRY CO., WITH 567 STORES OF WHICH 371 SERVE FOOD, ITS STOCK BEING
LISTED ON THE NEW YORK STOCK EXCHANGE; F.W. WOOLWORTH CO., WITH 2,130
STORES, ITS STOCK ALSO BEING LISTED ON THE NEW YORK STOCK EXCHANGE;
ECKERD DRUGS, HAVING 17 STORES WITH ITS STOCK TRADED OVER-THE-COUNTER. 
F.W. WOOLWORTH HAS OVER 90,000 STOCKHOLDERS; J.J. NEWBERRY ABOUT 8,000;
MCCRORY OVER 24,000; S.H. KRESS OVER 8,000; ECKERD DRUGS ABOUT 1,000. 

AT THE NATIONAL LEVEL MOST "EATING PLACES," AS APPENDIX IV SHOWS, ARE
INDIVIDUAL PROPRIETORSHIPS OR PARTNERSHIPS.  BUT A SUBSTANTIAL NUMBER
ARE CORPORATE IN FORM; AND EVEN THOUGH IN NUMBERS THEY ARE PERHAPS AN
EIGHTH OF THE OTHERS, IN BUSINESS DONE THEY MAKE UP A MUCH LARGER
PERCENTAGE OF THE TOTAL. 

THOSE LIVING IN THE WASHINGTON, D.C., METROPOLITAN AREA KNOW THAT IT
IS TRUE IN THAT AREA - THE HOTELS ARE INCORPORATED; HOWARD JOHNSON CO.,
LISTED ON THE NEW YORK STOCK EXCHANGE, HAS 650 RESTAURANTS AND OVER
15,000 STOCKHOLDERS; HOT SHOPPES, INC., HAS 4,900 STOCKHOLDERS;
THOMPSON CO. (INVOLVED IN DISTRICT OF COLUMBIA V. THOMPSON CO., 346
U.S. 100) HAS 50 RESTAURANTS IN THIS COUNTRY WITH OVER 1,000
STOCKHOLDERS AND ITS STOCK IS LISTED ON THE NEW YORK STOCK EXCHANGE;
PEOPLES DRUG STORES, WITH A NEW YORK STOCK EXCHANGE LISTING, HAS NEARLY
5,000 STOCKHOLDERS.  SEE MOODY'S INDUSTRIAL MANUAL (1963 ED.). 

ALL THE SIT-IN CASES INVOLVE A CONTEST IN A CRIMINAL TRIAL BETWEEN
NEGROES WHO SOUGHT SERVICE AND STATE PROSECUTORS AND STATE JUDGES WHO
ENFORCED TRESPASS LAWS AGAINST THEM.  THE CORPORATE BENEFICIARIES OF
THESE CONVICTIONS, THOSE WHOSE CONSTITUTIONAL RIGHTS WERE VINDICATED BY
THESE CONVICTIONS, ARE NOT PARTIES TO THESE SUITS.  THE BENEFICIARY IN
THE PRESENT CASE WAS HOOPER FOOD CO., INC., A MARYLAND CORPORATION; AND
AS SEEN IN APPENDIX IV, "EATING PLACES" IN MARYLAND OWNED BY
CORPORATIONS, THOUGH NOT A FOURTH IN NUMBER OF THOSE OWNED BY
INDIVIDUALS OR PARTNERSHIPS, DO NEARLY AS MUCH BUSINESS AS THE OTHER
TWO COMBINED. 

SO FAR AS THE CORPORATE OWNER IS CONCERNED, WHAT CONSTITUTIONAL RIGHT
IS VINDICATED?  IT IS SAID THAT OWNERSHIP OF PROPERTY CARRIES THE RIGHT
TO USE IT IN ASSOCIATION WITH SUCH PEOPLE AS THE OWNER CHOOSES.  THE
CORPORATE OWNERS IN THESE CASES - THE STOCKHOLDERS - ARE UNIDENTIFIED
MEMBERS OF THE PUBLIC AT LARGE, WHO PROBABLY NEVER SAW THESE
PETITIONERS, WHO MAY NEVER HAVE FREQUENTED THESE RESTAURANTS.  WHAT
PERSONAL RIGHTS OF THEIRS WOULD BE VINDICATED BY AFFIRMANCE?  WHY
SHOULD A STOCKHOLDER IN KRESS, WOOLWORTH, HOWARD JOHNSON, OR ANY OTHER
CORPORATE OWNER IN THE RESTAURANT FIELD HAVE STANDING TO SAY THAT ANY
ASSOCIATIONAL RIGHTS PERSONAL TO HIM ARE INVOLVED?  WHY SHOULD HIS
INTERESTS - HIS ASSOCIATIONAL RIGHTS - MAKE IT POSSIBLE TO SEND THESE
NEGROES TO JAIL? 

WHO, IN THIS SITUATION, IS THE CORPORATION?  WHOSE RACIAL PREJUDICES
ARE REFLECTED IN "ITS" DECISION TO REFUSE SERVICE TO NEGROES?  THE
RACIAL PREJUDICES OF THE MANAGER?  OF THE STOCKHOLDERS?  OF THE BOARD
OF DIRECTORS? 

THE COURT IN SANTA CLARA COUNTY V. SOUTHERN PACIFIC R. CO., 118 U.S.
394, INTERRUPTED COUNSEL ON ORAL ARGUMENT TO SAY, "THE COURT DOES NOT
WISH TO HEAR ARGUMENT ON THE QUESTION WHETHER THE PROVISION IN THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION, WHICH FORBIDS A STATE TO DENY
TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS,
APPLIES TO THESE CORPORATIONS.  WE ARE ALL OF OPINION THAT IT DOES." 
118 U.S., AT 396.  LATER THE COURT HELD THAT CORPORATIONS ARE "PERSONS"
WITHIN THE MEANING OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  MINNEAPOLIS R. CO. V. BECKWITH, 129 U.S. 26, 28.  WHILE
THAT VIEW IS THE LAW TODAY, IT PREVAILED ONLY OVER DISSENTING
OPINIONS.  SEE THE DISSENT OF MR. JUSTICE BLACK IN CONNECTICUT GENERAL
CO. V. JOHNSON, 303 U.S. 77, 85; AND MY DISSENT IN WHEELING STEEL CORP.
V. GLANDER, 337 U.S. 562, 576.  MR. JUSTICE BLACK SAID OF THAT DOCTRINE
AND ITS INFLUENCE: 

"  ...  OF THE CASES IN THIS COURT IN WHICH THE FOURTEENTH AMENDMENT
WAS APPLIED DURING THE FIRST FIFTY YEARS AFTER ITS ADOPTION, LESS THAN
ONE-HALF OF ONE PER CENT. INVOKED IT IN PROTECTION OF THE NEGRO RACE,
AND MORE THAN FIFTY PER CENT. ASKED THAT ITS BENEFITS BE EXTENDED TO
CORPORATIONS."  CONNECTICUT GENERAL CO. V. JOHNSON, 303 U.S., AT 90. 

A CORPORATION, LIKE ANY OTHER "CLIENT," IS ENTITLED TO THE ATTORNEY
CLIENT PRIVILEGE.  SEE RADIANT BURNERS, INC., V. AMERICAN GAS ASSN.,
320 F.2D 314.  A CORPORATION IS PROTECTED AS A PUBLISHER BY THE FREEDOM
OF THE PRESS CLAUSE OF THE FIRST AMENDMENT.  GROSJEAN V. AMERICAN PRESS
CO., 297 U.S. 233, 244; NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254. 
A CORPORATION, OVER THE DISSENT OF THE FIRST MR. JUSTICE HARLAN, WAS
HELD ENTITLED TO PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES
BY REASON OF THE FOURTH AMENDMENT.  HALE V. HENKEL, 201 U.S. 43, 76
77.  ON THE OTHER HAND THE PRIVILEGE OF SELF-INCRIMINATION GUARANTEED
BY THE FIFTH AMENDMENT CANNOT BE UTILIZED BY A CORPORATION.  UNITED
STATES V. WHITE, 322 U.S. 694.  "THE CONSTITUTIONAL PRIVILEGE AGAINST
SELF-INCRIMINATION IS ESSENTIALLY A PERSONAL ONE, APPLYING ONLY TO
NATURAL INDIVIDUALS."  ID., AT 698. 

WE DEAL HERE, WE ARE TOLD, WITH PERSONAL RIGHTS - THE RIGHTS
PERTAINING TO PROPERTY.  ONE NEED NOT SHARE HIS HOME WITH ONE HE
DISLIKES.  ONE NEED NOT ALLOW ANOTHER TO PUT HIS FOOT UPON HIS PRIVATE
DOMAIN FOR ANY REASON HE DESIRES - WHETHER BIGOTED OR ENLIGHTENED.  IN
THE SIMPLE AGRICULTURAL ECONOMY THAT JEFFERSON EXTOLLED, THE CONFLICTS
POSED WERE HIGHLY PERSONAL.  BUT HOW IS A "PERSONAL" RIGHT INFRINGED
WHEN A CORPORATE CHAIN STORE, FOR EXAMPLE, IS FORCED TO OPEN ITS LUNCH
COUNTERS TO PEOPLE OF ALL RACES?  HOW CAN THAT SO-CALLED RIGHT BE
ELEVATED TO A CONSTITUTIONAL LEVEL?  HOW IS THAT CORPORATE RIGHT MORE
"PERSONAL" THAN THE RIGHT AGAINST SELF-INCRIMINATION?    THE
REVOLUTIONARY CHANGE EFFECTED BY AN AFFIRMANCE IN THESE SIT-IN CASES
WOULD BE MUCH MORE DAMAGING TO AN OPEN AND FREE SOCIETY THAN WHAT THE
COURT DID WHEN IT GAVE THE CORPORATION THE SWORD AND THE SHIELD OF THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT. 
AFFIRMANCE FINDS IN THE CONSTITUTION A CORPORATE RIGHT TO REFUSE
SERVICE TO ANYONE "IT" CHOOSES AND TO GET THE STATE TO PUT PEOPLE IN
JAIL WHO DEFY "ITS" WILL. 

MORE PRECISELY, AFFIRMANCE WOULD GIVE CORPORATE MANAGEMENT VAST
DIMENSIONS FOR SOCIAL PLANNING.  (FN1)    AFFIRMANCE WOULD MAKE
CORPORATE MANAGEMENT THE ARBITER OF ONE OF THE DEEPEST CONFLICTS IN OUR
SOCIETY:  CORPORATE MANAGEMENT COULD THEN ENLIST THE AID OF STATE
POLICE, STATE PROSECUTORS, AND STATE COURTS TO FORCE APARTHEID ON THE
COMMUNITY THEY SERVED, IF APARTHEID BEST SUITED THE CORPORATE NEED; OR,
IF ITS PROFITS WOULD BE BETTER SERVED BY LOWERING THE BARRIERS OF
SEGREGATION, IT COULD DO SO. 

VEBLEN, WHILE NOT WRITING DIRECTLY ABOUT CORPORATE MANAGEMENT AND THE
RACIAL ISSUE, SAW THE DANGER OF LEAVING FUNDAMENTAL, GOVERNMENTAL
DECISIONS TO THE MANAGERS OR ABSENTEE OWNERS OF OUR CORPORATE
ENTERPRISES: 

"ABSENTEE OWNERSHIP AND ABSENTEE MANAGEMENT ON THIS GRAND SCALE IS
IMMUNE FROM NEIGHBORLY PERSONALITIES AND FROM SENTIMENTAL
CONSIDERATIONS AND SCRUPLES. 

"IT TAKES EFFECT THROUGH THE COLORLESS AND IMPERSONAL CHANNELS OF
CORPORATION MANAGEMENT, AT THE HANDS OF BUSINESSLIKE OFFICIALS WHOSE
DISCRETION AND RESPONSIBILITY EXTEND NO FARTHER THAN THE PROCURING OF A
REASONABLY LARGE - THAT IS TO SAY THE LARGEST OBTAINABLE - NET GAIN IN
TERMS OF PRICE.  THE ABSENTEE OWNERS ARE REMOVED OUT OF ALL TOUCH WITH
THE WORKING PERSONNEL OR WITH THE INDUSTRIAL WORK IN HAND, EXCEPT SUCH
REMOTE, NEUTRAL AND DISPASSIONATE CONTACT BY PROXY AS MAY BE IMPLIED IN
THE CONTINUED RECEIPT OF A FREE INCOME; AND VERY MUCH THE SAME IS TRUE
FOR THE BUSINESS AGENTS OF THE ABSENTEE OWNERS, THE INVESTMENT-BANKERS
AND THE STAFF OF RESPONSIBLE CORPORATION OFFICIALS.  THEIR RELATION TO
WHAT IS GOING ON, AND TO THE MANPOWER BY USE OF WHICH IT IS GOING ON,
IS A FISCAL RELATION.  AS INDUSTRY, AS A PROCESS OF WORKMANSHIP AND A
PRODUCTION OF THE MEANS OF LIFE, THE WORK IN HAND HAS NO MEANING FOR
THE ABSENTEE OWNERS SITTING IN THE FISCAL BACKGROUND OF THESE VESTED
INTERESTS.  PERSONALITIES AND TANGIBLE CONSEQUENCES ARE ELIMINATED AND
THE BUSINESS OF GOVERNING THE RATE AND VOLUME OF THE OUTPUT GOES
FORWARD IN TERMS OF FUNDS, PRICES, AND PERCENTAGES."  ABSENTEE
OWNERSHIP (1923), PP. 215-216. 

THE POINT IS THAT CORPORATE MOTIVES IN THE RETAIL FIELD RELATE TO
CORPORATE PROFITS, CORPORATE PRESTIGE, AND CORPORATE PUBLIC RELATIONS. 
(FN2)  CORPORATE MOTIVES HAVE NO TINGE OF AN INDIVIDUAL'S CHOICE TO
ASSOCIATE ONLY WITH ONE CLASS OF CUSTOMERS, TO KEEP MEMBERS OF ONE RACE
FROM HIS "PROPERTY," TO ERECT A WALL OF PRIVACY AROUND A BUSINESS IN
THE MANNER THAT ONE IS ERECTED AROUND THE HOME. 

AT TIMES A CORPORATION HAS STANDING TO ASSERT THE CONSTITUTIONAL
RIGHTS OF ITS MEMBERS, AS OTHERWISE THE RIGHTS PECULIAR TO THE MEMBERS
AS INDIVIDUALS MIGHT BE LOST OR IMPAIRED.  THUS IN NAACP V. ALABAMA,
357 U.S. 449, THE QUESTION WAS WHETHER THE N.A.A.C.P., A MEMBERSHIP
CORPORATION, COULD ASSERT ON BEHALF OF ITS MEMBERS A RIGHT PERSONAL TO
THEM TO BE PROTECTED FROM COMPELLED DISCLOSURE BY THE STATE OF THEIR
AFFILIATION WITH IT.  IN THAT CONTEXT WE SAID THE N.A.A.C.P. WAS "THE
APPROPRIATE PARTY TO ASSERT THESE RIGHTS, BECAUSE IT AND ITS MEMBERS
ARE IN EVERY PRACTICAL SENSE IDENTICAL."  ID., AT 459.  WE FELT,
MOREOVER, THAT TO DENY THE N.A.A.C.P. STANDING TO RAISE THE QUESTION
AND TO REQUIRE IT TO BE CLAIMED BY THE MEMBERS THEMSELVES "WOULD RESULT
IN NULLIFICATION OF THE RIGHT AT THE VERY MOMENT OF ITS ASSERTION." 
IBID.  THOSE WERE THE IMPORTANT REASONS GOVERNING OUR DECISION, THE
ADVERSE EFFECT OF DISCLOSURE ON THE N.A.A.C.P. ITSELF BEING ONLY MAKE
WEIGHT.  ID., AT 459-460. 

THE CORPORATE OWNERS OF A RESTAURANT, LIKE THE CORPORATE OWNERS OF
STREETCARS, BUSES, TELEPHONES, AND ELECTRIC LIGHT AND GAS FACILITIES,
ARE INTERESTED IN BALANCE SHEETS AND IN PROFIT AND LOSS STATEMENTS. 
"IT" DOES NOT STAND AT THE DOOR TURNING NEGROES ASIDE BECAUSE OF "ITS"
FEELINGS OF ANTIPATHY TO BLACK-SKINNED PEOPLE.  "IT" DOES NOT HAVE ANY
ASSOCIATIONAL RIGHTS COMPARABLE TO THE CLASSIC INDIVIDUAL STORE OWNER
AT A COUNTRY CROSSROADS WHOSE STORE, IN THE DICHOTOMY OF AN ADAM SMITH,
WAS INDEED NO DIFFERENT FROM HIS HOME.  "IT" HAS BEEN GREATLY
TRANSFORMED, AS BERLE AND MEANS, THE MODERN CORPORATION AND PRIVATE
PROPERTY (1932), MADE CLEAR A GENERATION AGO; AND "IT" HAS ALSO
TRANSFORMED OUR ECONOMY.  SEPARATION OF POWER OR CONTROL FROM
BENEFICIAL OWNERSHIP WAS PART OF THE PHENOMENON OF CHANGE: 

"THIS DISSOLUTION OF THE ATOM OF PROPERTY DESTROYS THE VERY
FOUNDATION ON WHICH THE ECONOMIC ORDER OF THE PAST THREE CENTURIES HAS
RESTED.  PRIVATE ENTERPRISE, WHICH HAS MOLDED ECONOMIC LIFE SINCE THE
CLOSE OF THE MIDDLE AGES, HAS BEEN ROOTED IN THE INSTITUTION OF PRIVATE
PROPERTY.  UNDER THE FEUDAL SYSTEM, ITS PREDECESSOR, ECONOMIC
ORGANIZATION GREW OUT OF MUTUAL OBLIGATIONS AND PRIVILEGES DERIVED BY
VARIOUS INDIVIDUALS FROM THEIR RELATION TO PROPERTY WHICH NO ONE OF
THEM OWNED.  PRIVATE ENTERPRISE, ON THE OTHER HAND, HAS ASSUMED AN
OWNER OF THE INSTRUMENTS OF PRODUCTION WITH COMPLETE PROPERTY RIGHTS
OVER THOSE INSTRUMENTS.  WHEREAS THE ORGANIZATION OF FEUDAL ECONOMIC
LIFE RESTED UPON AN ELABORATE SYSTEM OF BINDING CUSTOMS, THE
ORGANIZATION UNDER THE SYSTEM OF PRIVATE ENTERPRISE HAS RESTED UPON THE
SELF-INTEREST OF THE PROPERTY OWNER - A SELF-INTEREST HELD IN CHECK
ONLY BY COMPETITION AND THE CONDITIONS OF SUPPLY AND DEMAND.  SUCH SELF
INTEREST HAS LONG BEEN REGARDED AS THE BEST GUARANTEE OF ECONOMIC
EFFICIENCY.  IT HAS BEEN ASSUMED THAT, IF THE INDIVIDUAL IS PROTECTED
IN THE RIGHT BOTH TO USE HIS OWN PROPERTY AS HE SEES FIT AND TO RECEIVE
THE FULL FRUITS OF ITS USE, HIS DESIRE FOR PERSONAL GAIN, FOR PROFITS,
CAN BE RELIED UPON AS AN EFFECTIVE INCENTIVE TO HIS EFFICIENT USE OF
ANY INDUSTRIAL PROPERTY HE MAY POSSESS. 

"IN THE QUASI-PUBLIC CORPORATION, SUCH AN ASSUMPTION NO LONGER
HOLDS.    ...  IT IS NO LONGER THE INDIVIDUAL HIMSELF WHO USES HIS
WEALTH.  THOSE IN CONTROL OF THAT WEALTH, AND THEREFORE IN A POSITION
TO SECURE INDUSTRIAL EFFICIENCY AND PRODUCE PROFITS, ARE NO LONGER, AS
OWNERS, ENTITLED TO THE BULK OF SUCH PROFITS.  THOSE WHO CONTROL THE
DESTINIES OF THE TYPICAL MODERN CORPORATION OWN SO INSIGNIFICANT A
FRACTION OF THE COMPANY'S STOCK THAT THE RETURNS FROM RUNNING THE
CORPORATION PROFITABLY ACCRUE TO THEM IN ONLY A VERY MINOR DEGREE.  THE
STOCKHOLDERS, ON THE OTHER HAND, TO WHOM THE PROFITS OF THE CORPORATION
GO, CANNOT BE MOTIVATED BY THOSE PROFITS TO A MORE EFFICIENT USE OF THE
PROPERTY, SINCE THEY HAVE SURRENDERED ALL DISPOSITION OF IT TO THOSE IN
CONTROL OF THE ENTERPRISE.  THE EXPLOSION OF THE ATOM OF PROPERTY
DESTROYS THE BASIS OF THE OLD ASSUMPTION THAT THE QUEST FOR PROFITS
WILL SPUR THE OWNER OF INDUSTRIAL PROPERTY TO ITS EFFECTIVE USE.  IT
CONSEQUENTLY CHALLENGES THE FUNDAMENTAL ECOMONIC PRINCIPLE OF
INDIVIDUAL INITIATIVE IN INDUSTRIAL ENTERPRISE."  ID., AT 8-9. 

BY LIKE TOKEN THE SEPARATION OF THE ATOM OF "PROPERTY" INTO ONE UNIT
OF "MANAGEMENT" AND INTO ANOTHER OF "ABSENTEE OWNERSHIP" HAS IN OTHER
WAYS BASICALLY CHANGED THE RELATIONSHIP OF THAT "PROPERTY" TO THE
PUBLIC. 

A CORPORATION MAY EXCLUDE NEGROES IF "IT" THINKS "IT" CAN MAKE MORE
MONEY DOING SO.  "IT" MAY GO ALONG WITH COMMUNITY PREJUDICES WHEN THE
PROFIT AND LOSS STATEMENT WILL BENEFIT; "IT" IS UNLIKELY TO GO AGAINST
THE CURRENT OF COMMUNITY PREJUDICE WHEN PROFITS ARE ENDANGERED.  (FN3) 

VEBLEN STATED SOMEWHAT THE SAME IDEA IN ABSENTEE OWNERSHIP (1923), P.
107: 

"  ...  THE ARTS OF BUSINESS ARE ARTS OF BARGAINING, EFFRONTERY,
SALESMANSHIP, MAKE-BELIEVE, AND ARE DIRECTED TO THE GAIN OF THE
BUSINESS MAN AT THE COST OF THE COMMUNITY, AT LARGE AND IN DETAIL. 
NEITHER TANGIBLE PERFORMANCE NOR THE COMMON GOOD IS A BUSINESS
PROPOSITION.  ANY MATERIAL USE WHICH HIS TRAFFIC MAY SERVE IS QUITE
BESIDE THE BUSINESS MAN'S PURPOSE, EXCEPT INDIRECTLY, IN SO FAR AS IT
MAY SERVE TO INFLUENCE HIS CLIENTELE TO HIS ADVANTAGE." 

BY THIS STANDARD THE BUS COMPANY COULD REFUSE SERVICE TO NEGROES IF
"IT" FELT "ITS" PROFITS WOULD INCREASE ONCE APARTHEID WERE ALLOWED IN
THE TRANSPORTATION FIELD. 

IN THE INSTANT CASE, G. CARROLL HOOPER, PRESIDENT OF THE CORPORATE
CHAIN OWNING THE RESTAURANT HERE INVOLVED, TESTIFIED CONCERNING THE
EPISODE THAT GAVE RISE TO THESE CONVICTIONS.  HIS REASONS WERE WHOLLY
COMMERCIAL ONES, AS WE HAVE ALREADY SEEN. 

THERE ARE OCCASIONS WHEN THE CORPORATION IS LITTLE MORE THAN A VEIL
FOR MAN AND WIFE OR BROTHER AND BROTHER; AND DISREGARDING THE CORPORATE
ENTITY OFTEN IS THE INSTRUMENT FOR ACHIEVING A JUST RESULT.  BUT THE
RELEGATION OF A NEGRO CUSTOMER TO SECOND-CLASS CITIZENSHIP IS NOT
JUST.  NOR IS FASTENING APARTHEID ON AMERICA A WORTHY OCCASION FOR
TEARING ASIDE THE CORPORATE VEIL. 

FN1  THE CONVENTIONAL CLAIMS OF CORPORATE MANAGEMENT ARE STATED IN
GINZBERG AND BERG, DEMOCRATIC VALUES AND THE RIGHTS OF MANAGEMENT
(1963), PP. 153-154: 

"THE FOUNDING FATHERS, DESPITE SOME DIFFERENCES OF OPINION AMONG
THEM, WERE OF ONE MIND WHEN IT CAME TO FUNDAMENTALS - THE BEST
GUARANTEE OF FREEDOM WAS THE RETENTION BY THE INDIVIDUAL OF THE
BROADEST POSSIBLE SCOPE FOR DECISION-MAKING.  AND EARLY IN THE NATION'S
HISTORY, WHEN THE SUPREME COURT DECIDED THAT THE CORPORATION POSSESSED
MANY OF THE SAME RIGHTS AS INDIVIDUALS, CONTINUITY WAS MAINTAINED IN
BASIC STRUCTURE; THE CORPORATE OWNER AS WELL AS THE INDIVIDUAL HAD WIDE
SCOPE FOR DECISION-MAKING.  IN RECENT DECADES, ANOTHER EXTENSION OF
THIS TREND BECAME MANIFEST.  THE AGENTS OF OWNERS - THE MANAGERS - WERE
ABLE TO SUBSUME FOR THEMSELVES THE AUTHORITIES INHERENT IN OWNERSHIP. 
THE HISTORICAL RECORD, THEN, IS CLEAR.  THE RIGHT TO DO WHAT ONE LIKES
WITH HIS PROPERTY LIES AT THE VERY FOUNDATION OF OUR HISTORICAL
EXPERIENCE.  THIS IS A BASIS FOR MANAGEMENT'S GROWING CONCERN WITH THE
RESTRICTIONS AND LIMITATIONS WHICH HAVE INCREASINGLY COME TO
CHARACTERIZE AN ARENA WHERE THE WIDEST SCOPE FOR INDIVIDUAL INITIATIVE
PREVIOUSLY PREVAILED." 

FN2  "FRED HARVEY, PRESIDENT OF HARVEY'S DEPARTMENT STORE IN
NASHVILLE, SAYS THAT WHEN HIS STORE DESEGREGATED ITS LUNCH COUNTERS IN
1960 ONLY 13 CHARGE ACCOUNTS WERE CLOSED OUT OF 60,000.  'THE GREATEST
SURPRISE I EVER HAD WAS THE APPARENT "SO-WHAT" ATTITUDE OF WHITE
CUSTOMERS,' SAYS MR. HARVEY. 

"EVEN WHERE BUSINESS LOSSES OCCUR, THEY USUALLY ARE ONLY TEMPORARY. 
AT THE 120-ROOM PEACHTREE MANOR HOTEL IN ATLANTA, OWNER IRVING H.
GOLDSTEIN SAYS HIS BUSINESS DROPPED OFF 15% WHEN THE HOTEL DESEGREGATED
A YEAR AGO.  'BUT NOW WE ARE ONLY SLIGHTLY BEHIND A YEAR AGO AND WE CAN
SEE WE ARE BEGINNING TO RECAPTURE THE BUSINESS WE INITIALLY LOST,'
DECLARES MR. GOLDSTEIN. 

"WILLIAM F. DAVOREN, OWNER OF THE BROWNIE DRUG CO. IN HUNTSVILLE,
ALA., REPORTS THAT THOUGH HIS BUSINESS FELL FOR A BIT FOR SEVERAL WEEKS
AFTER LUNCH COUNTERS WERE DESEGREGATED, HE'S NOW PICKED UP ALL THAT HE
LOST.  SAYS HE:  'I COULD NAME A DOZEN PEOPLE WHO REGARDED IT AS A
PERSONAL AFFRONT WHEN I STARTED SERVING NEGROES, BUT HAVE COME BACK AS
IF NOTHING HAD HAPPENED.' 

"EVEN A SEGREGATION-MINDED BUSINESSMAN IN HUNTSVILLE AGREES THAT
WHITE CUSTOMERS FREQUENTLY HAVE SHORT MEMORIES WHEN IT COMES TO THE
RACE QUESTION.  W.T. HUTCHENS, GENERAL MANAGER OF THREE WALGREEN STORES
THERE, SAYS HE HELD OUT WHEN MOST LUNCH COUNTER OPERATORS GAVE IN TO
SIT-IN PRESSURES LAST JULY.  IN ONE SHOPPING CENTER WHERE HIS
COMPETITION DESEGREGATED, MR. HUTCHENS SAYS HIS BUSINESS SHOT UP
SHARPLY AND THE STORE'S LUNCH COUNTER VOLUME REGISTERED A 12% GAIN FOR
THE YEAR.  HOWEVER, THIS YEAR BUSINESS HAS DROPPED BACK TO PRE
INTEGRATION LEVELS 'BECAUSE A LOT OF PEOPLE HAVE FORGOTTEN' THE DEFIANT
ROLE HIS STORES PLAYED DURING THE SIT-INS, HE ADDS. 

"SOME SOUTHERN BUSINESSMEN WHO HAVE DESEGREGATED SAY THAT HAVE PICKED
UP EXTRA BUSINESS AS A RESULT OF THE MOVE. 

"AT RALEIGH, N.C., WHERE GINO'S RESTAURANT WAS DESEGREGATED THIS
YEAR, OWNER JACK GRIFFITHS REPORTS ONLY EIGHT WHITES HAVE WALKED OUT
AFTER LEARNING THE ESTABLISHMENT SERVED NEGROES, AND HE SAYS, 'WE'RE
GETTING PLENTY OF CUSTOMERS TO REPLACE THE HARD-HEADED ONES.' 

"IN DALLAS, INTEGRATION OF HOTELS AND RESTAURANTS HAS 'OPENED UP AN
ENTIRELY NEW AREA OF CONVENTION PROSPECTS,' ACCORDING TO RAY BENNISON,
CONVENTION MANAGER OF THE CHAMBER OF COMMERCE.  'THIS YEAR WE'VE
PROBABLY ADDED $8 MILLION TO $10 MILLION OF FUTURE BOOKINGS BECAUSE
WE'RE INTEGRATED,' MR. BENNISON SAYS."  WALL STREET JOURNAL, JULY 15,
1963, PP. 1, 12. 

AS RECENTLY STATED BY JOHN PERRY: 

"THE MANAGER HAS BECOME ACCUSTOMED TO SEEING WELL-DRESSED NEGROES IN
GOOD RESTAURANTS, ON PLANES AND TRAINS, IN CHURCH, IN HOTEL LOBBIES, AT
UNITED FUND MEETINGS, ON TELEVISION, AT HIS UNIVERSITY CLUB.  ONLY A
FEW YEARS AGO, IF HE MET A NEGRO AT SOME CIVIL OR POLITICAL MEETING, HE
UNDERSTOOD THAT THE MAN WAS THERE BECAUSE HE WAS A NEGRO; HE WAS A KIND
OF EXHIBIT.  TODAY IT IS MUCH MORE LIKELY THAT THE NEGRO IS THERE
BECAUSE OF HIS POSITION OR PROFESSION.  IT MAKES A DIFFERENCE THAT
EVERYONE FEELS. 

"THE MANAGER IS AWARE THAT COMPANIES OTHER THAN HIS ARE CHANGING.  HE
SEES IT HAPPENING.  HE READS ABOUT IT.  IT IS TALKED ABOUT, USUALLY OFF
THE RECORD AND INFORMALLY, AT BUSINESS GATHERINGS.  SO, IN DUE COURSE,
QUESTIONS ARE SHAPED IN HIS MIND:  'HOW CAN WE KEEP IN STEP?  HOW CAN
WE CHANGE, WITHOUT MAKING A BIG DEAL OF IT?  CAN WE DO IT WITHOUT A LOT
OF UPROAR?'"  BUSINESS - NEXT TARGET FOR INTEGRATION, MARCH-APRIL,
1963, HARVARD BUSINESS REV., PP. 104, 111.    FN3  THE NEW YORK TIMES
STATED THE IDEA EDITORIALLY IN AN ANALOGOUS SITUATION ON OCTOBER 31,
1963.   P. 32: 

"WHEN IT COMES TO SPEAKING OUT ON BUSINESS MATTERS, ROGER BLOUGH,
CHAIRMAN OF THE UNITED STATES STEEL CORPORATION, DOES NOT MINCE WORDS. 

"MR. BLOUGH IS A FIRM BELIEVER IN FREEDOM OF ACTION FOR CORPORATE
MANAGEMENT, A POSITION HE MADE CLEAR IN HIS BATTLE WITH THE
ADMINISTRATION LAST YEAR.  BUT HE ALSO HAS PUT SOME SEVERE LIMITS ON
THE EXERCISE OF CORPORATE RESPONSIBILITY, FOR HE REJECTS THE SUGGESTION
THAT U.S. STEEL, THE BIGGEST EMPLOYER IN BIRMINGHAM, ALA., SHOULD USE
ITS ECONOMIC INFLUENCE TO ERASE RACIAL TENSIONS.  MR. BLOUGH FEELS THAT
U.S. STEEL HAS FULFILLED ITS RESPONSIBILITIES BY FOLLOWING A NON
DISCRIMINATORY HIRING POLICY IN BIRMINGHAM, AND LOOKS UPON ANY OTHER
MEASURES AS BOTH 'REPUGNANT' AND 'QUITE BEYOND WHAT A CORPORATION
SHOULD DO' TO IMPROVE CONDITIONS. 

"THIS HANDS-OFF STRATEGY SURELY UNDERESTIMATES THE POTENTIAL
INFLUENCE OF A CORPORATION AS BIG AS U.S. STEEL, PARTICULARLY AT THE
LOCAL LEVEL.  IT COULD, WITHOUT AFFECTING ITS PROFIT MARGINS ADVERSELY
OR GETTING ITSELF DIRECTLY INVOLVED IN POLITICS, ACTIVELY WORK WITH
THOSE GROUPS IN BIRMINGHAM TRYING TO BETTER RACE RELATIONS.  STEEL IS
NOT SOLD ON THE RETAIL LEVEL, SO U.S. STEEL HAS NOT BEEN FACED WITH THE
ECONOMIC PRESSURE USED AGAINST THE BRANCHES OF NATIONAL CHAIN STORES. 

"MANY CORPORATIONS HAVE BELATEDLY RECOGNIZED THAT IT IS IN THEIR OWN
SELF-INTEREST TO PROMOTE AN IMPROVEMENT IN NEGRO OPPORTUNITIES.  AS ONE
OF THE NATION'S BIGGEST CORPORATIONS, U.S. STEEL AND ITS SHAREHOLDERS
HAVE AS GREAT A STAKE IN ELIMINATING THE ECONOMIC IMBALANCES ASSOCIATED
WITH RACIAL DISCRIMINATION AS ANY COMPANY.  CORPORATE RESPONSIBILITY IS
NOT EASY TO DEFINE OR TO MEASURE, BUT IN REFUSING TO TAKE A STAND IN
BIRMINGHAM, MR. BLOUGH APPEARS TO HAVE A RATHER NARROW, LIMITED CONCEPT
OF HIS INFLUENCE." 

                 APPENDIX II TO OPINION OF MR. JUSTICE DOUGLAS. 

A. IN GREEN V. VIRGINIA, POST, P. 550, THE PURPOSE OR REASON FOR NOT
SERVING NEGROES WAS RULED TO BE IMMATERIAL TO THE ISSUES IN THE CASE. 

B. IN THE FOLLOWING CASES, THE TESTIMONY OF CORPORATE OFFICERS SHOWS
THAT THE REASON WAS EITHER A COMMERCIAL ONE OR, WHICH AMOUNTS TO THE
SAME THING, THAT SERVICE TO NEGROES WAS NOT IN ACCORD WITH LOCAL
CUSTOM: 

1.  BOUIE V. CITY OF COLUMBIA, POST, P. 347. 

DR. GUY MALONE, THE MANAGER OF THE COLUMBIA BRANCH OF ECKERD DRUGS OF
FLORIDA, INC., TESTIFIED: 

"Q.  MR. MALONE, IS THE PUBLIC GENERALLY INVITED TO DO BUSINESS WITH
ECKERD'S? 

"A.  YES, I WOULD SAY SO. 

"Q.  DOES THAT MEAN ALL OF THE PUBLIC OF ALL RACES? 

"A.  YES. 

"Q.  ARE NEGROES WELCOME TO DO BUSINESS WITH ECKERD'S? 

"A.  YES. 

"Q.  ARE NEGROES WELCOME TO DO BUSINESS AT THE LUNCH COUNTER AT
ECKERD'S? 

"A.  WELL, WE HAVE NEVER SERVED NEGROES AT THE LUNCH COUNTER
DEPARTMENT. 

"Q.  ACCORDING TO THE PRESENT POLICY OF ECKERD'S, THE LUNCH COUNTER
IS CLOSED TO MEMBERS OF THE NEGRO PUBLIC? 

"A.  I WOULD SAY YES. 

"Q.  AND ALL OTHER DEPARTMENTS OF ECKERD'S ARE OPEN TO MEMBERS OF THE
NEGRO PUBLIC, AS WELL AS TO OTHER MEMBERS OF THE PUBLIC GENERALLY? 

"A.  YES. 

"Q.  MR. MALONE, ON THE OCCASION OF THE ARREST OF THESE YOUNG MEN,
WHAT WERE THEY DOING IN YOUR STORE, IF YOU KNOW? 

"A.  WELL, IT WAS FOUR OF THEM CAME IN.  TWO OF THEM WENT BACK AND
SAT DOWN AT THE FIRST BOOTH AND STARTED READING BOOKS, AND THEY SAT
THERE FOR ABOUT FIFTEEN MINUTES.  OF COURSE, WE HAD HAD A GROUP ABOUT A
WEEK PRIOR TO THAT, OF ABOUT FIFTY, WHO CAME INTO THE STORE. 

"MR. PERRY:  YOUR HONOR, I ASK, OF COURSE, THAT THE PRIOR INCIDENT BE
STRICKEN FROM THE RECORD.  THAT IS NOT RESPONSIVE TO THE QUESTION WHICH
HAS BEEN ASKED, AND IS NOT PERTINENT TO THE MATTER OF THE GUILT OR
INNOCENCE OF THESE YOUNG MEN. 

"THE COURT:  ALL RIGHT, STRIKE IT. 

"MR. SHOLENBERGER:  YOUR HONOR, THIS IS THEIR OWN WITNESS. 

"MR. PERRY:  WE ANNOUNCED AT THE OUTSET THAT MR. MALONE WOULD, IN A
SENSE, BE A HOSTILE WITNESS. 

*         *         *         *         * 

"Q.  AND SO, WHEN A PERSON COMES INTO ECKERD'S AND SEATS HIMSELF AT A
PLACE WHERE FOOD IS ORDINARILY SERVED, WHAT IS THE PRACTICE OF YOUR
EMPLOYEES IN THAT REGARD? 

"A.  WELL, IT'S TO TAKE THEIR ORDER. 

"Q.  DID ANYONE SEEK TO TAKE THE ORDERS OF THESE YOUNG MEN? 

"A.  NO, THEY DID NOT. 

"Q.  WHY DID THEY NOT DO SO? 

"A.  BECAUSE WE DIDN'T WANT TO SERVE THEM. 

"Q.  WHY DID YOU NOT WANT TO SERVE THEM? 

"A.  I DON'T THINK I HAVE TO ANSWER THAT. 

"Q.  DID YOU REFUSE TO SERVE THEM BECAUSE THEY WERE NEGROES? 

"A.  NO. 

"Q.  YOU DID SAY, HOWEVER, THAT ECKERD'S HAS THE POLICY OF NOT
SERVING NEGROES IN THE LUNCH COUNTER SECTION? 

"A.  I WOULD SAY THAT ALL STORES DO THE SAME THING. 

"Q.  WE'RE SPEAKING SPECIFICALLY OF ECKERD'S? 

"A.  YES. 

"Q.  DID YOU OR ANY OF YOUR EMPLOYEES, MR. MALONE, APPROACH THESE
DEFENDANTS AND TAKE THEIR ORDER FOR FOOD? 

"A.  NO." 

2.  ROBINSON V. FLORIDA, ANTE, P. 153. 

A VICE PRESIDENT OF SHELL'S CITY, INC., TESTIFIED: 

"Q.  WHY DID YOU REFUSE TO SERVE THESE DEFENDANTS? 

"A.  BECAUSE I FEEL, DEFINITELY, IT IS VERY DETRIMENTAL TO OUR
BUSINESS TO DO SO. 

"Q.  WHAT DO YOU MEAN 'DETRIMENTAL'? 

"A.  DETRIMENTAL BECAUSE IT WOULD MEAN A LOSS OF BUSINESS TO US TO
SERVE MIXED GROUPS." 

ANOTHER VICE PRESIDENT OF SHELL'S CITY, INC., TESTIFIED: 

"Q.  YOU HAVE SEVERAL DEPARTMENTS IN YOUR STORE, DO YOU NOT? 

"A.  YES.  NINETEEN, I BELIEVE.  MAYBE TWENTY. 

"Q.  NEGROES ARE INVITED TO PARTICIPATE AND MAKE PURCHASES IN
EIGHTEEN OF THESE DEPARTMENTS? 

"A.  YES, SIR. 

"Q.  CAN YOU DISTINGUISH BETWEEN YOUR FEELING THAT IT IS NOT
DETRIMENTAL TO HAVE THEM SERVED IN EIGHTEEN DEPARTMENTS AND IT IS
DETRIMENTAL TO HAVE THEM SERVED IN THE NINETEENTH DEPARTMENT, NAMELY,
THE LUNCH COUNTER? 

"A.  WELL, IT GOES BACK TO WHAT THE CUSTOM, THAT IS, THE TRADITION OF
WHAT IS BASICALLY OBSERVED IN DADE COUNTY WOULD BE THE BOTTOM OF IT.
WE HAVE: 

     *         *      *         *         * 

"Q.  WOULD YOU TELL ME WHAT THIS CUSTOM IS, THAT YOU ARE MAKING
REFERENCE TO, THAT WOULD PREVENT YOU FROM SERVING NEGROES AT YOUR LUNCH
COUNTER? 

"A.  I BELIEVE I ALREADY ANSWERED THAT, THAT IT IS THE CUSTOMS AND
TRADITIONS AND PRACTICE IN THIS COUNTY - NOT ONLY IN THIS COUNTY BUT IN
THIS PART OF THE STATE AND ELSEWHERE, NOT TO SERVE WHITES AND COLORED
PEOPLE SEATED IN THE SAME RESTAURANT.  THAT'S MY ANSWER. 

"Q.  WAS THAT THE SOLE REASON, THE SOLE BASIS, FOR YOUR FEELING THAT
THIS WAS DETRIMENTAL TO YOUR BUSINESS? 

"A. WELL, THAT IS THE FOUNDATION OF IT, YES, BUT WE FEEL THAT AT THIS
TIME IF WE WENT INTO A THING OF TRYING TO BREAK THAT BARRIER, WE MIGHT
HAVE RACIAL TROUBLE, WHICH WE DON'T WANT.  WE HAVE LOTS OF GOOD FRIENDS
AMONG COLORED PEOPLE AND WILL HAVE WHEN THIS CASE IS OVER. 

"Q.  ARE YOU FAMILIAR WITH THE FACT THAT THE WOOLWORTH STORES IN THIS
COMMUNITY HAVE ELIMINATED THIS PRACTICE? 

"MR. GOSHGARIAN:  TO WHICH THE STATE OBJECTS.  IT IS IRRELEVANT AND
IMMATERIAL. 

"THE COURT:  THE OBJECTION IS SUSTAINED." 

3.  FOX V. NORTH CAROLINA, POST, P. 587. 

MR. CLAUDE M. BREEDEN, THE MANAGER OF THE MCCRORY BRANCH IN RALEIGH,
TESTIFIED: 

"I JUST DON'T SERVE COLORED.  I DON'T HAVE THE FACILITIES FOR SERVING
COLORED.  EXPLAINING WHY I DON'T SERVE COLORED.  I DON'T HAVE THE
FACILITIES FOR SERVING COLORED.  I HAVE THE STANDARD SHORT ORDER LUNCH,
BUT I DON'T SERVE COLORED.  I DON'T SERVE COLORED BECAUSE I DON'T HAVE
THE FACILITIES FOR SERVING COLORED. 

"COUNSEL FOR DEFENDANT:  WHAT FACILITIES WOULD BE NECESSARY FOR
SERVING COLORED? 

"SOLICITOR FOR STATE:  OBJECTION. 

"THE COURT:  SUSTAINED. 

"WITNESS CONTINUES:  IT IS NOT THE POLICY OF MY STORE TO DISCRIMINATE
AND NOT SERVE NEGROES.  WE HAVE NO POLICY AGAINST DISCRIMINATION.  I DO
NOT DISCRIMINATE AND IT IS NOT THE CUSTOM IN THE RALEIGH STORE TO
DISCRIMINATE.  I DO NOT HAVE THE FACILITIES FOR SERVING COLORED AND
THAT IS WHY I DON'T SERVE COLORED." 

4.  MITCHELL V. CITY OF CHARLESTON, POST, P. 551. 

MR. ALBERT C. WATTS, THE MANAGER OF THE S.H. KRESS & CO. OUTLET IN
CHARLESTON, TESTIFIED: 

"Q.    ...  WHAT TYPE OF BUSINESS IS KRESS'S? 

"A.  FIVE AND TEN CENT VARIETY STORE. 

"Q.  COULD YOU TELL US BRIEFLY SOMETHING ABOUT WHAT COMMODITIES IT
SELLS - DOES IT SELL JUST ABOUT EVERY TYPE OF COMMODITY THAT ONE MIGHT
FIND IN THIS TYPE ESTABLISHMENT? 

"A.  STRICTLY VARIETY STORE MERCHANDISE - NO APPLIANCES OR ANYTHING
LIKE THAT. 

"Q.  I SEE.  KRESS, I BELIEVE IT INVITES MEMBERS OF THE PUBLIC
GENERALLY INTO ITS PREMISES TO DO BUSINESS, DOES IT NOT? 

"A.  YES. 

"Q.  IT INVITES NEGROES IN TO DO BUSINESS, ALSO? 

"A.  RIGHT. 

"Q. ARE NEGROES SERVED IN ALL OF THE DEPARTMENTS OF KRESS'S EXCEPT
YOUR LUNCH COUNTER? 

"A.  WE OBSERVE LOCAL CUSTOM. 

"Q. IN CHARLESTON, SOUTH CAROLINA, THE STORE THAT YOU MANAGE, SIR,
DOES KRESS'S SERVE NEGROES AT THE LUNCH COUNTER? 

"A.  NO. IT IS NOT A LOCAL CUSTOM. 

"Q.  TO YOUR KNOWLEDGE, DOES THE OTHER LIKE BUSINESSES SERVE NEGROES
AT THEIR LUNCH COUNTERS?  WHAT MIGHT HAPPEN AT WOOLWORTH'S OR SOME OF
THE OTHERS? 

"A. THEY OBSERVE LOCAL CUSTOM - I SAY THEY WOULDN'T. 

"Q.  THEN YOU KNOW OF YOUR OWN KNOWLEDGE THAT THEY DO NOT SERVE
NEGROES?  ARE YOU SPEAKING OF OTHER BUSINESS SUCH AS YOUR BUSINESS? 

"A.  I CAN ONLY SPEAK IN OUR FIELD, YES. 

"Q.  IN YOUR FIELD, SO THAT THE OTHER STORES IN YOUR FIELD DO NOT
SERVE NEGROES AT THEIR LUNCH COUNTERS? 

"A.  YES, SIR." 

5.  HAMM V. CITY OF ROCK HILL, 377 U.S. 988. 

MR. H.C. WHITEAKER, THE MANAGER OF MCCRORY'S IN ROCK HILL,
TESTIFIED: 

"Q.  ALL RIGHT.  NOW, HOW MANY DEPARTMENTS DO YOU HAVE IN YOUR
STORE? 

"A.  AROUND TWENTY. 

"Q.  AROUND TWENTY DEPARTMENTS? 

"A.  YES, SIR. 

"Q.  ALL RIGHT, SIR, IS ONE OF THESE DEPARTMENTS CONSIDERED A LUNCH
COUNTER OR ESTABLISHMENT WHERE FOOD IS SERVED? 

"A.  YES, SIR.  THAT IS A SEPARATE DEPARTMENT. 

     *        *         *         *         * 

"Q.  NOW, I BELIEVE, IS IT TRUE THAT YOU INVITE MEMBERS OF THE PUBLIC
TO COME INTO YOUR STORE? 

"A.  YES, IT IS FOR THE PUBLIC. 

"Q.  AND IS IT TRUE, TOO, THAT THE PUBLIC TO YOU MEANS EVERYBODY,
VARIOUS RACES, RELIGIONS, NATIONALITIES? 

"A.  YES, SIR. 

"Q.  THE POLICY OF YOUR STORE AS MANAGER IS NOT TO EXCLUDE ANYBODY
FROM COMING IN AND BUYING THESE THREE THOUSAND ITEMS ON ACCOUNT OF
RACE, NATIONALITY OR RELIGION, IS THAT RIGHT? 

"A.  THE ONLY PLACE WHERE THERE HAS BEEN EXCEPTION, WHERE THERE IS AN
EXCEPTION, IS AT OUR LUNCH COUNTER. 

"Q.  OH, I SEE.  IS THAT A WRITTEN POLICY YOU GET FROM HEADQUARTERS
IN NEW YORK? 

"A.  NO, SIR. 

"Q.  IT IS NOT.  YOU DON'T HAVE ANY MEMORANDUM IN YOUR STORE THAT
SAYS THAT IS A POLICY? 

"A.  NO, SIR. 

 *         *         *         *         * 

"Q.  IS IT TRUE, THEN, THAT IF, THAT, WELL, EVEN IF A MAN WAS QUIET
ENOUGH, AND A COMMUNIST, THAT HE COULD SIT AT YOUR LUNCH COUNTER AND
EAT, ACCORDING TO THE POLICY OF YOUR STORE RIGHT NOW?  WHETHER YOU KNEW
HE WAS A COMMUNIST OR NOT, SO HIS POLITICAL BELIEFS WOULD NOT HAVE
ANYTHING TO DO WITH IT, IS THAT RIGHT? 

"A.  NO. 

"Q.  NOW, SIR, YOU SAID THAT THERE WAS A POLICY THERE AS TO NEGROES
SITTING.  AM I TO UNDERSTAND THAT YOU DO SERVE NEGROES OR AMERICANS WHO
ARE NEGROES, STANDING UP? 

"A.  TO TAKE OUT, AT THE END OF THE COUNTER, WE SERVE TAKE-OUTS, YES,
SIR. 

"Q.  IN OTHER WORDS, YOU HAVE A LUNCH COUNTER AT THE END OF YOUR
STORE? 

"A.  NO, I SAID AT THE END, THEY CAN WAIT AND GET A PACKAGE OR A MEAL
OR ORDER A COKE OR HAMBURGER AND TAKE IT OUT. 

"Q.  OH, TO TAKE OUT.  THEY DON'T NORMALLY EAT IT ON THE PREMISES? 

"A.  THEY MIGHT, BUT USUALLY IT IS TO TAKE OUT. 

     *         *         *         *         * 

"Q. OF COURSE, YOU PROBABLY HAVE SOME NEGRO EMPLOYEES IN YOUR STORE,
IN SOME CAPACITY, DON'T YOU? 

"A.  YES, SIR. 

"Q.  THEY EAT ON THE PREMISES, IS THAT RIGHT? 

"A.  YES, SIR. 

"Q.  BUT NOT AT THE LUNCH COUNTER? 

"A.  NO, SIR. 

     *         *         *         *         * 

"Q.  OH, I SEE, BUT GENERALLY SPEAKING, YOU CONSIDER THE AMERICAN
NEGRO AS PART OF THE GENERAL PUBLIC, IS THAT RIGHT, JUST GENERALLY
SPEAKING? 

"A.  YES, SIR. 

"Q.  YOU DON'T HAVE ANY OBJECTIONS FOR HIM SPENDING ANY AMOUNT OF
MONEY HE WANTS TO ON THESE 3,000 ITEMS, DO YOU? 

"A.  THAT'S UP TO HIM TO SPEND IF HE WANTS TO SPEND. 

"Q.  THIS IS A CUSTOM, AS I UNDERSTAND IT, THIS IS A CUSTOM INSTEAD
OF A LAW THAT CAUSES YOU NOT TO WANT HIM TO ASK FOR SERVICE AT THE
LUNCH COUNTER? 

"A.  THERE IS NO LAW TO MY KNOWLEDGE, IT IS MERELY A CUSTOM IN THIS
COMMUNITY." 

C. THE TESTIMONY IN THE FOLLOWING CASES IS LESS DEFINITIVE WITH
RESPECT TO WHY NEGROES WERE REFUSED SERVICE. 

IN GRIFFIN V. MARYLAND, ANTE, P. 130, THE PRESIDENT OF THE
CORPORATIONS WHICH OWN AND OPERATE GLEN ECHO AMUSEMENT PARK SAID HE
WOULD ADMIT CHINESE, FILIPINOS, INDIANS AND, GENERALLY, ANYONE BUT
NEGROES.  HE DID NOT ELABORATE, BEYOND STATING THAT A PRIVATE PROPERTY
OWNER HAS THE RIGHT TO MAKE SUCH A CHOICE. 

IN BARR V. CITY OF COLUMBIA, ANTE, P. 146, THE CO-OWNER AND MANAGER
OF THE TAYLOR STREET PHARMACY SAID NEGROES COULD PURCHASE IN OTHER
DEPARTMENTS OF HIS STORE AND THAT WHETHER FOR BUSINESS OR PERSONAL
REASONS, HE FELT HE HAD A RIGHT TO REFUSE SERVICE TO ANYONE. 

IN WILLIAMS V. NORTH CAROLINA, POST, P. 548, THE PRESIDENT OF JONES
DRUG COMPANY SAID NEGROES WERE NOT PERMITTED TO TAKE SEATS AT THE LUNCH
COUNTER.  HE DID SAY, HOWEVER, THAT NEGROES COULD PURCHASE FOOD AND EAT
IT ON THE PREMISES SO LONG AS THEY STOOD SOME DISTANCE FROM THE LUNCH
COUNTER, SUCH AS NEAR THE BACK DOOR.    IN LUPPER V. ARKANSAS, 377 U.S.
989, AND HARRIS V. VIRGINIA, POST, P. 552, THE RECORD DISCLOSES ONLY
THAT THE ESTABLISHMENT DID NOT SERVE NEGROES. 

                APPENDIX III TO OPINION OF MR. JUSTICE DOUGLAS. 

CORPORATE (FN1) BUSINESS ESTABLISHMENTS INVOLVED IN THE "SIT-IN"
CASES BEFORE THIS COURT DURING THE 1962 TERM AND THE 1963 TERM. 
REFERENCE (OTHER THAN THE RECORD IN EACH CASE):  MOODY'S INDUSTRIAL
MANUAL (1963 ED.). 

1.  GUS BLASS & CO. DEPARTMENT STORE.  CASE:  LUPPER V. ARKANSAS, 377
U.S. 989.  LOCATION:  LITTLE ROCK, ARKANSAS.  OWNERSHIP:  PRIVATELY
OWNED CORPORATION.    2.  ECKERD DRUGS OF FLORIDA, INC. CASE:  BOUIE V.
CITY OF COLUMBIA, POST, P. 347.  LOCATION:  17 RETAIL DRUGSTORES
THROUGHOUT SOUTHERN STATES.  OWNERSHIP:  PUBLICLY OWNED CORPORATION. 
NUMBER OF SHAREHOLDERS:  1,000.  STOCK TRADED:  OVER-THE-COUNTER
MARKET. 

3.  GEORGE'S DRUG STORES, INC. CASE:  HARRIS V. VIRGINIA, POST, P.
552.  LOCATION:  HOPEWELL, VIRGINIA.  OWNERSHIP:  PRIVATELY OWNED
CORPORATION. 

4.  GWYNN OAK PARK, INC. CASE:  DREWS V. MARYLAND, POST, P. 547. 
LOCATION:  BALTIMORE, MARYLAND.  OWNERSHIP:  PRIVATELY OWNED
CORPORATION. 

5.  HOOPER FOOD COMPANY, INC. CASE: BELL V. MARYLAND, SUPRA, P. 226. 
LOCATION:  SEVERAL RESTAURANTS IN BALTIMORE, MARYLAND.  OWNERSHIP:
PRIVATELY OWNED CORPORATION. 

6.  HOWARD JOHNSON CO. CASE:  HENRY V. VIRGINIA, 374 U.S. 98. 
LOCATION:  650 RESTAURANTS IN 25 STATES.  OWNERSHIP: PUBLICLY OWNED
CORPORATION.  NUMBER OF SHAREHOLDERS:  15,203.  STOCK TRADED: NEW YORK
STOCK EXCHANGE. 

7.  JONES DRUG COMPANY, INC. CASE:  WILLIAMS V. NORTH CAROLINA, POST,
P. 548.  LOCATION:  MONROE, NORTH CAROLINA.  OWNERSHIP; PRIVATELY OWNED
CORPORATION. 

8.  KEBAR, INC. (LESSEE FROM RAKAD, INC.).  CASE:  GRIFFIN V.
MARYLAND, ANTE, P. 130.  LOCATION: GLEN ECHO AMUSEMENT PARK, MARYLAND. 
OWNERSHIP:  PRIVATELY OWNED CORPORATION. 

9.  S.H. KRESS & COMPANY.  CASES:  MITCHELL V. CITY OF CHARLESTON,
POST, P. 551; AVENT V. NORTH CAROLINA, 373 U.S. 375; GOVER V. CITY OF
BIRMINGHAM, 373 U.S. 374; PETERSON V. CITY OF GREENVILLE, 373 U.S.
244.  LOCATION:  272 STORES IN 30 STATES.  OWNERSHIP:  PUBLICLY OWNED
CORPORATION.  NUMBER OF SHAREHOLDERS:  8,767.  STOCK TRADED:  NEW YORK
STOCK EXCHANGE. 

10.  LOVEMAN'S DEPARTMENT STORE (FOOD CONCESSION OPERATED BY PRICE
CANDY COMPANY OF KANSAS CITY).  CASE:  GOBER V. CITY OF BIRMINGHAM,
SUPRA.  LOCATION:  BIRMINGHAM, ALABAMA.  OWNERSHIP:  PRIVATELY OWNED
CORPORATION. 

11.  MCCRORY CORPORATION.  CASES:  FOX V. NORTH CAROLINA, POST, P.
587; HAMM V. CITY OF ROCK HILL, 377 U.S. 988; LOMBARD V. LOUISIANA, 373
U.S. 267.  LOCATION:  1,307 STORES THROUGHOUT THE UNITED STATES. 
OWNERSHIP:  PUBLICLY OWNED CORPORATION.  NUMBER OF SHAREHOLDERS:
24,117.  STOCK TRADED: NEW YORK STOCK EXCHANGE. 

12.  NATIONAL WHITE TOWER SYSTEM, INCORPORATED.  CASE:  GREEN V.
VIRGINIA, POST, P. 550.  LOCATION:  RICHMOND, VIRGINIA, AND OTHER
CITIES (NUMBER UNKNOWN).  OWNERSHIP:  APPARENTLY A PRIVATELY OWNED
CORPORATION. 

13.  J.J. NEWBERRY CO. CASE:  GOBER V. CITY OF BIRMINGHAM, SUPRA.
LOCATION:  567 VARIETY STORES IN 46 STATES; SODA FOUNTAINS, LUNCH BARS,
CAFETERIAS AND RESTAURANTS IN 371 STORES.  OWNERSHIP: PUBLICLY OWNED
CORPORATION.  NUMBER OF SHAREHOLDERS:  7,909.  STOCK TRADED:  NEW YORK
STOCK EXCHANGE. 

14.  PATTERSON DRUG CO. CASES:  THOMPSON V. VIRGINIA, 374 U.S. 99;
WOOD V. VIRGINIA, 374 U.S. 100.  LOCATION:  LYNCHBURG, VIRGINIA. 
OWNERSHIP:  PRIVATELY OWNED CORPORATION. 

15.  PIZITZ'S DEPARTMENT STORE.  CASE:  GOBER V. CITY OF BIRMINGHAM,
SUPRA.  LOCATION: BIRMINGHAM, ALABAMA.  OWNERSHIP:  PRIVATELY OWNED
CORPORATION. 

16.  SHELL'S CITY, INC. CASE:  ROBINSON V. FLORIDA, ANTE, P. 153. 
LOCATION:  MIAMI, FLORIDA.  OWNERSHIP:  PRIVATELY OWNED CORPORATION. 

17.  THALHIMER BROS., INC., DEPARTMENT STORE.  CASE:  RANDOLPH V.
VIRGINIA, 374 U.S. 97.  LOCATION:  RICHMOND, VIRGINIA.  OWNERSHIP:
PRIVATELY OWNED CORPORATION. 

18.  F.W. WOOLWORTH COMPANY.  CASE:  GOBER V. CITY OF BIRMINGHAM,
SUPRA.  LOCATION:  2,130 STORES (PRIMARILY VARIETY STORES) THROUGHOUT
THE UNITED STATES.  OWNERSHIP:  PUBLICLY OWNED CORPORATION.  NUMBER OF
SHAREHOLDERS:  90,435.  STOCK TRADED:  NEW YORK STOCK EXCHANGE. 

FN1  THE ONLY "SIT-IN" CASES NOT INVOLVING A CORPORATION ARE BARR V.
CITY OF COLUMBIA, ANTE, P. 146, AND DANIELS V. VIRGINIA, 374 U.S. 500. 
IN BARR, THE BUSINESS ESTABLISHMENT WAS THE TAYLOR STREET PHARMACY,
WHICH APPARENTLY IS A PARTNERSHIP; IN DANIELS, IT WAS THE 403
RESTAURANT IN ALEXANDRIA, VIRGINIA, AN INDIVIDUAL PROPRIETORSHIP. 

                 APPENDIX IV TO OPINION OF MR. JUSTICE DOUGLAS. 

LEGAL FORM OF ORGANIZATION - BY KIND OF BUSINESS. 

REFERENCE:  UNITED STATES CENSUS OF BUSINESS, 1958, VOL. I. 

RETAIL TRADE - SUMMARY STATISTICS (1961). 

                               A. UNITED STATES.  (TABLE OMITTED.) 

                             B. STATE OF MARYLAND.  (TABLE
OMITTED.) 

                 APPENDIX V TO OPINION OF MR. JUSTICE DOUGLAS. 

      STATE ANTIDISCRIMINATION LAWS. 

        (AS OF MARCH 18, 1964.) 

           (PREPARED BY THE UNITED STATES COMMISSION ON CIVIL

           RIGHTS.)                       (TABLE OMITTED.) 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE JOINS, AND WITH
WHOM MR. JUSTICE DOUGLAS JOINS AS TO PARTS II-V, CONCURRING. 

                                        I. 

I JOIN IN THE OPINION AND THE JUDGMENT OF THE COURT AND WOULD
THEREFORE HAVE NO OCCASION UNDER ORDINARY CIRCUMSTANCES TO EXPRESS MY
VIEWS ON THE UNDERLYING CONSTITUTIONAL ISSUE.  SINCE, HOWEVER, THE
DISSENT AT LENGTH DISCUSSES THIS CONSTITUTIONAL ISSUE AND REACHES A
CONCLUSION WITH WHICH I PROFOUNDLY DISAGREE, I AM IMPELLED TO STATE THE
REASONS FOR MY CONVICTION THAT THE CONSTITUTION GUARANTEES TO ALL
AMERICANS THE RIGHT TO BE TREATED AS EQUAL MEMBERS OF THE COMMUNITY
WITH RESPECT TO PUBLIC ACCOMMODATIONS. 

                                        II. 

THE DECLARATION OF INDEPENDENCE STATES THE AMERICAN CREED:  "WE HOLD
THESE TRUTHS TO BE SELF-EVIDENT, THAT ALL MEN ARE CREATED EQUAL, THAT
THEY ARE ENDOWED BY THEIR CREATOR WITH CERTAIN UNALIENABLE RIGHTS, THAT
AMONG THESE ARE LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS."  THIS
IDEAL WAS NOT FULLY ACHIEVED WITH THE ADOPTION OF OUR CONSTITUTION
BECAUSE OF THE HARD AND TRAGIC REALITY OF NEGRO SLAVERY.  THE
CONSTITUTION OF THE NEW NATION, WHILE HERALDING LIBERTY, IN EFFECT
DECLARED ALL MEN TO BE FREE AND EQUAL - EXCEPT BLACK MEN WHO WERE TO BE
NEITHER FREE NOR EQUAL.  THIS INCONSISTENCY REFLECTED A FUNDAMENTAL
DEPARTURE FROM THE AMERICAN CREED, A DEPARTURE WHICH IT TOOK A TRAGIC
CIVIL WAR TO SET RIGHT.  WITH THE ADOPTION, HOWEVER, OF THE THIRTEENTH,
FOURTEENTH, AND FIFTEENTH AMENDMENTS TO THE CONSTITUTION, FREEDOM AND
EQUALITY WERE GUARANTEED EXPRESSLY TO ALL REGARDLESS "OF RACE, COLOR,
OR PREVIOUS CONDITION OF SERVITUDE."  (FN1)  UNITED STATES V. REESE, 92
U.S. 214, 218. 

IN LIGHT OF THIS AMERICAN COMMITMENT TO EQUALITY AND THE HISTORY OF
THAT COMMITMENT, THESE AMENDMENTS MUST BE READ NOT AS "LEGISLATIVE
CODES WHICH ARE SUBJECT TO CONTINUOUS REVISION WITH THE CHANGING COURSE
OF EVENTS, BUT AS THE REVELATION OF THE GREAT PURPOSES WHICH WERE
INTENDED TO BE ACHIEVED BY THE CONSTITUTION AS A CONTINUING INSTRUMENT
OF GOVERNMENT."  UNITED STATES V. CLASSIC, 313 U.S. 299, 316.  THE
CASES FOLLOWING THE 1896 DECISION IN PLESSY V. FERGUSON, 163 U.S. 537,
TOO OFTEN TENDED TO NEGATE THIS GREAT PURPOSE.  IN 1954 IN BROWN V.
BOARD OF EDUCATION, 347 U.S. 483, THIS COURT UNANIMOUSLY CONCLUDED THAT
THE FOURTEENTH AMENDMENT COMMANDS EQUALITY AND THAT RACIAL SEGREGATION
BY LAW IS INEQUALITY.  SINCE BROWN THE COURT HAS CONSISTENTLY APPLIED
THIS CONSTITUTIONAL STANDARD TO GIVE REAL MEANING TO THE EQUAL
PROTECTION CLAUSE "AS THE REVELATION" OF AN ENDURING CONSTITUTIONAL
PURPOSE.  (FN2) 

THE DISSENT ARGUES THAT THE CONSTITUTION PERMITS AMERICAN CITIZENS TO
BE DENIED ACCESS TO PLACES OF PUBLIC ACCOMMODATION SOLELY BECAUSE OF
THEIR RACE OR COLOR.  SUCH A VIEW DOES NOT DO JUSTICE TO A CONSTITUTION
WHICH IS COLOR BLIND AND TO THE COURT'S DECISION IN BROWN V. BOARD OF
EDUCATION, WHICH AFFIRMED THE RIGHT OF ALL AMERICANS TO PUBLIC
EQUALITY.  WE CANNOT BLIND OURSELVES TO THE CONSEQUENCES OF A
CONSTITUTIONAL INTERPRETATION WHICH WOULD PERMIT CITIZENS TO BE TURNED
AWAY BY ALL THE RESTAURANTS, OR BY THE ONLY RESTAURANT, IN TOWN.  THE
DENIAL OF THE CONSTITUTIONAL RIGHT OF NEGROES TO ACCESS TO PLACES OF
PUBLIC ACCOMMODATION WOULD PERPETUATE A CASTE SYSTEM IN THE UNITED
STATES. 

THE THIRTEENTH, FOURTEENTH AND FIFTEENTH AMENDMENTS DO NOT PERMIT
NEGROES TO BE CONSIDERED AS SECOND-CLASS CITIZENS IN ANY ASPECT OF OUR
PUBLIC LIFE.  UNDER OUR CONSTITUTION DISTINCTIONS SANCTIONED BY LAW
BETWEEN CITIZENS BECAUSE OF RACE, ANCESTRY, COLOR OR RELIGION "ARE BY
THEIR VERY NATURE ODIOUS TO A FREE PEOPLE WHOSE INSTITUTIONS ARE
FOUNDED UPON THE DOCTRINE OF EQUALITY."  HIRABAYASHI V. UNITED STATES,
320 U.S. 81, 100.  WE MAKE NO RACIAL DISTINCTIONS BETWEEN CITIZENS IN
EXACTING FROM THEM THE DISCHARGE OF PUBLIC RESPONSIBILITIES:  THE
HEAVIEST DUTIES OF CITIZENSHIP - MILITARY SERVICE, TAXATION, OBEDIENCE
TO LAWS - ARE IMPOSED EVENHANDEDLY UPON BLACK AND WHITE.  STATES MAY
AND DO IMPOSE THE BURDENS OF STATE CITIZENSHIP UPON NEGROES AND THE
STATES IN MANY WAYS BENEFIT FROM THE EQUAL IMPOSITION OF THE DUTIES OF
FEDERAL CITIZENSHIP.  OUR FUNDAMENTAL LAW WHICH INSURES SUCH AN
EQUALITY OF PUBLIC BURDENS, IN MY VIEW, SIMILARLY INSURES AN EQUALITY
OF PUBLIC BENEFITS.  THIS COURT HAS REPEATEDLY RECOGNIZED AND APPLIED
THIS FUNDAMENTAL PRINCIPLE TO MANY ASPECTS OF COMMUNITY LIFE.  (FN3)

                III. 

OF COURSE OUR CONSTITUTIONAL DUTY IS "TO CONSTRUE, NOT TO REWRITE OR
AMEND, THE CONSTITUTION."  POST, AT 342 (DISSENTING OPINION OF MR.
JUSTICE BLACK).  OUR SWORN DUTY TO CONSTRUE THE CONSTITUTION REQUIRES,
HOWEVER, THAT WE READ IT TO EFFECTUATE THE INTENT AND PURPOSES OF THE
FRAMERS.  WE MUST, THEREFORE, CONSIDER THE HISTORY AND CIRCUMSTANCES
INDICATING WHAT THE CIVIL WAR AMENDMENTS WERE IN FACT DESIGNED TO
ACHIEVE. 

IN 1873, IN ONE OF THE EARLIEST CASES INTERPRETING THE THIRTEENTH AND
FOURTEENTH AMENDMENTS, THIS COURT OBSERVED: 

"NO ONE CAN FAIL TO BE IMPRESSED WITH THE ONE PERVADING PURPOSE FOUND
IN  ...  ALL (THESE AMENDMENTS), LYING AT THE FOUNDATION OF EACH, AND
WITHOUT WHICH NONE OF THEM WOULD HAVE BEEN EVEN SUGGESTED; WE MEAN THE
FREEDOM OF THE SLAVE RACE, THE SECURITY AND FIRM ESTABLISHMENT OF THAT
FREEDOM, AND THE PROTECTION OF THE NEWLY-MADE FREEMAN AND CITIZEN FROM
THE OPPRESSIONS OF THOSE WHO HAD FORMERLY EXERCISED UNLIMITED DOMINION
OVER HIM  ...  ."  SLAUGHTER-HOUSE CASES, 16 WALL.  36, 71. 

A FEW YEARS LATER, IN 1880, THE COURT HAD OCCASION TO OBSERVE THAT
THESE AMENDMENTS WERE WRITTEN AND ADOPTED "TO RAISE THE COLORED RACE
FROM THE CONDITION OF INFERIORITY AND SERVITUDE IN WHICH MOST OF THEM
HAD PREVIOUSLY STOOD, INTO PERFECT EQUALITY OF CIVIL RIGHTS WITH ALL
OTHER PERSONS WITHIN THE JURISDICTION OF THE STATES."  EX PARTE
VIRGINIA, 100 U.S. 339, 344-345.  IN THAT SAME TERM, THE COURT IN
STRAUDER V. WEST VIRGINIA, 100 U.S. 303, 307, STATED THAT THE RECENTLY
ADOPTED FOURTEENTH AMENDMENT MUST "BE CONSTRUED LIBERALLY, TO CARRY OUT
THE PURPOSES OF ITS FRAMERS."  SUCH OPINIONS IMMEDIATELY FOLLOWING THE
ADOPTION OF THE AMENDMENTS CLEARLY REFLECT THE CONTEMPORARY
UNDERSTANDING THAT THEY WERE "TO SECURE TO THE COLORED RACE, THEREBY
INVESTED WITH THE RIGHTS, PRIVILEGES, AND RESPONSIBILITIES OF
CITIZENSHIP, THE ENJOYMENT OF ALL THE CIVIL RIGHTS THAT, UNDER THE LAW,
ARE ENJOYED BY WHITE PERSONS  ...  ."  NEAL V. DELAWARE, 103 U.S. 370,
386. 

THE HISTORICAL EVIDENCE AMPLY SUPPORTS THE CONCLUSION OF THE
GOVERNMENT, STATED BY THE SOLICITOR GENERAL IN THIS COURT, THAT: 

"IT IS AN INESCAPABLE INFERENCE THAT CONGRESS, IN RECOMMENDING THE
FOURTEENTH AMENDMENT, EXPECTED TO REMOVE THE DISABILITIES BARRING
NEGROES FROM THE PUBLIC CONVEYANCES AND PLACES OF PUBLIC ACCOMMODATION
WITH WHICH THEY ARE FAMILIAR, AND THUS TO ASSURE NEGROES AN EQUAL RIGHT
TO ENJOY THESE ASPECTS OF THE PUBLIC LIFE OF THE COMMUNITY." 

THE SUBJECT OF SEGREGATION IN PUBLIC CONVEYANCES AND ACCOMMODATIONS
WAS QUITE FAMILIAR TO THE FRAMERS OF THE FOURTEENTH AMENDMENT.  (FN4)
MOREOVER, IT APPEARS THAT THE CONTEMPORARY UNDERSTANDING OF THE GENERAL
PUBLIC WAS THAT FREEDOM FROM DISCRIMINATION IN PLACES OF PUBLIC
ACCOMMODATION WAS PART OF THE FOURTEENTH AMENDMENT'S PROMISE OF EQUAL
PROTECTION.  (FN5)  THIS VIEW WAS READILY ACCEPTED BY THE SUPREME COURT
OF MISSISSIPPI IN 1873 IN DONNELL V. STATE, 48 MISS.  661.  THE
MISSISSIPPI SUPREME COURT THERE CONSIDERED AND UPHELD THE EQUAL
ACCOMMODATIONS PROVISIONS OF MISSISSIPPI'S "CIVIL RIGHTS" BILL AS
APPLIED TO A NEGRO THEATER PATRON.  JUSTICE SIMRALL, SPEAKING FOR THE
COURT, NOTED THAT THE "13TH, 14TH AND 15TH AMENDMENTS OF THE
CONSTITUTION OF THE UNITED STATES, ARE THE LOGICAL RESULTS OF THE LATE
CIVIL WAR," ID., AT 675, AND CONCLUDED THAT THE "FUNDAMENTAL IDEA AND
PRINCIPLE PERVADING THESE AMENDMENTS, IS AN IMPARTIAL EQUALITY OF
RIGHTS AND PRIVILEGES, CIVIL AND POLITICAL, TO ALL 'CITIZENS OF THE
UNITED STATES'  ...  ," ID., AT 667.  (FN6)

IN STRAUDER V. WEST VIRGINIA, SUPRA, THIS COURT HAD OCCASION TO
CONSIDER THE CONCEPT OF CIVIL RIGHTS EMBODIED IN THE FOURTEENTH
AMENDMENT: 

"WHAT IS THIS BUT DECLARING THAT THE LAW IN THE STATES SHALL BE THE
SAME FOR THE BLACK AS FOR THE WHITE; THAT ALL PERSONS, WHETHER COLORED
OR WHITE, SHALL STAND EQUAL BEFORE THE LAWS OF THE STATES, AND, IN
REGARD TO THE COLORED RACE, FOR WHOSE PROTECTION THE AMENDMENT WAS
PRIMARILY DESIGNED, THAT NO DISCRIMINATION SHALL BE MADE AGAINST THEM
BY LAW BECAUSE OF THEIR COLOR?  THE WORDS OF THE AMENDMENT, IT IS TRUE,
ARE PROHIBITORY, BUT THEY CONTAIN A NECESSARY IMPLICATION OF A POSITIVE
IMMUNITY, OR RIGHT, MOST VALUABLE TO THE COLORED RACE, - THE RIGHT TO
EXEMPTION FROM UNFRIENDLY LEGISLATION AGAINST THEM DISTINCTIVELY AS
COLORED, - EXEMPTION FROM LEGAL DISCRIMINATIONS, IMPLYING INFERIORITY
IN CIVIL SOCIETY, LESSENING THE SECURITY OF THEIR ENJOYMENT OF THE
RIGHTS WHICH OTHERS ENJOY, AND DISCRIMINATIONS WHICH ARE STEPS TOWARDS
REDUCING THEM TO THE CONDITION OF A SUBJECT RACE."  ID., AT 307-308. 

     *         *         *         *         * 

"THE FOURTEENTH AMENDMENT MAKES NO ATTEMPT TO ENUMERATE THE RIGHTS IT
DESIGNED TO PROTECT.  IT SPEAKS IN GENERAL TERMS, AND THOSE ARE AS
COMPREHENSIVE AS POSSIBLE.  ITS LANGUAGE IS PROHIBITORY; BUT EVERY
PROHIBITION IMPLIES THE EXISTENCE OF RIGHTS AND IMMUNITIES, PROMINENT
AMONG WHICH IS AN IMMUNITY FROM INEQUALITY OF LEGAL PROTECTION, EITHER
FOR LIFE, LIBERTY, OR PROPERTY."  ID., AT 310. 

THE FOURTEENTH AMENDMENT WAS IN PART DESIGNED TO PROVIDE A FIRM
CONSTITUTIONAL BASIS FOR THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27, AND
TO PLACE THAT LEGISLATION BEYOND THE POWER OF CONGRESSIONAL REPEAL. 
(FN7)  THE ORIGINS OF SUBSEQUENTLY PROPOSED AMENDMENTS AND LEGISLATION
LAY IN THE 1866 BILL AND IN A COMPANION MEASURE, THE FREEDMEN'S BUREAU
BILL.  (FN8)  THE LATTER WAS ADDRESSED TO STATES "WHEREIN, IN
CONSEQUENCE OF ANY STATE OR LOCAL LAW,  ...  CUSTOM, OR PREJUDICE, ANY
OF THE CIVIL RIGHTS OR IMMUNITIES BELONGING TO WHITE PERSONS, INCLUDING
THE RIGHT  ...  TO HAVE FULL AND EQUAL BENEFIT OF ALL LAWS AND
PROCEEDINGS FOR THE SECURITY OF PERSON AND ESTATE, ARE REFUSED OR
DENIED TO NEGROES  ...  ."  CONG. GLOBE., 39TH CONG., 1ST SESS., 318. 
A REVIEW OF THE RELEVANT CONGRESSIONAL DEBATES REVEALS THAT THE CONCEPT
OF CIVIL RIGHTS WHICH LAY AT THE HEART BOTH OF THE CONTEMPORARY
LEGISLATIVE PROPOSALS AND OF THE FOURTEENTH AMENDMENT ENCOMPASSED THE
RIGHT TO EQUAL TREATMENT IN PUBLIC PLACES - A RIGHT EXPLICITLY
RECOGNIZED TO BE A "CIVIL" RATHER THAN A "SOCIAL" RIGHT.  IT WAS
REPEATEDLY EMPHASIZED "THAT COLORED PERSONS SHALL ENJOY THE SAME CIVIL
RIGHTS AS WHITE PERSONS," (FN9) THAT THE COLORED MAN SHOULD HAVE THE
RIGHT "TO GO WHERE HE PLEASES," (FN10) THAT HE SHOULD HAVE "PRACTICAL"
FREEDOM, (FN11) AND THAT HE SHOULD SHARE "THE RIGHTS AND GUARANTEES OF
THE GOOD OLD COMMON LAW."  (FN12) 

IN THE DEBATES THAT CULMINATED THE ACCEPTANCE OF THE FOURTEENTH
AMENDMENT, THE THEME OF GRANTING "CIVIL," AS DISTINGUISHED FROM
"SOCIAL," RIGHTS CONSTANTLY RECURRED.  (FN13)  ALTHOUGH IT WAS COMMONLY
RECOGNIZED THAT IN SOME AREAS THE CIVIL-SOCIAL DISTINCTION WAS MISTY,
THE CRITICAL FACT IS THAT IT WAS GENERALLY UNDERSTOOD THAT "CIVIL
RIGHTS" CERTAINLY INCLUDED THE RIGHT OF ACCESS TO PLACES OF PUBLIC
ACCOMMODATION FOR THESE WERE MOST CLEARLY PLACES AND AREAS OF LIFE
WHERE THE RELATIONS OF MEN WERE TRADITIONALLY REGULATED BY
GOVERNMENTS.  (FN14)  INDEED, THE OPPONENTS BOTH OF THE FREEDMEN'S
BUREAU BILL AND OF THE CIVIL RIGHTS ACT OF 1866 FREQUENTLY COMPLAINED,
WITHOUT REFUTATION OR CONTRADICTION, THAT THESE MEASURES WOULD GRANT
NEGROES THE RIGHT TO EQUAL TREATMENT IN PLACES OF PUBLIC
ACCOMMODATION.  THUS, FOR EXAMPLE, SENATOR DAVIS OF KENTUCKY, IN
OPPOSING THE FREEDMAN'S BUREAU BILL, PROTESTED THAT "COMMINGLING WITH
(WHITE PERSONS) IN HOTELS, THEATERS, STEAMBOATS, AND OTHER CIVIL RIGHTS
AND PRIVILEGES, WERE ALWAYS FORBID TO FREE NEGROES, UNTIL  ...  "
RECENTLY GRANTED BY MASSACHUSETTS.  (FN15) 

AN 1873 DECISION OF THE SUPREME COURT OF IOWA CLEARLY REFLECTS THE
CONTEMPORARY UNDERSTANDING OF THE MEANING OF THE CIVIL RIGHTS ACT OF
1866.  IN COGER V. NORTH WEST.  UNION PACKET CO., 37 IOWA 145, A
COLORED WOMAN SOUGHT DAMAGES FOR ASSAULT AND BATTERY OCCURRING WHEN THE
OFFICERS OF A MISSISSIPPI RIVER STEAMBOAT ORDERED THAT SHE BE REMOVED
FROM A DINING TABLE IN ACCORDANCE WITH A PRACTICE OF SEGREGATION IN THE
MAIN DINING ROOM ON THE BOAT.  IN GIVING JUDGMENT FOR THE PLAINTIFF,
THE IOWA SUPREME COURT QUOTED THE CIVIL RIGHTS ACT OF 1866 AND
CONCLUDED THAT: 

"UNDER THIS STATUTE, EQUALITY IN RIGHTS IS SECURED TO THE NERGO.  THE
LANGUAGE IS COMPREHENSIVE AND INCLUDES THE RIGHT TO PROPERTY AND ALL
RIGHTS GROWING OUT OF CONTRACTS.  IT INCLUDES WITHIN ITS BROAD TERMS
EVERY RIGHT ARISING IN THE AFFAIRS OF LIFE.  THE RIGHT OF THE PASSENGER
UNDER THE CONTRACT OF TRANSPORTATION WITH THE CARRIER IS INCLUDED
THEREIN.  THE COLORED MAN IS GUARANTEED EQUALITY AND EQUAL PROTECTION
OF THE LAWS WITH HIS WHITE NEIGHBOR.  THESE ARE THE RIGHTS SECURED TO
HIM AS A CITIZEN OF THE UNITED STATES, WITHOUT REGARD TO HIS COLOR, AND
CONSTITUTE HIS PRIVILEGES, WHICH ARE SECURED BY THE FOURTEENTH
AMENDMENT."  ID., AT 156.    THE COURT THEN WENT ON TO REJECT THE
CONTENTION THAT THE RIGHTS ASSERTED WERE "SOCIAL, AND  ... NOT,
THEREFORE, SECURED BY THE CONSTITUTION AND STATUTES, EITHER OF THE
STATE OR OF THE UNITED STATES."  ID., AT 157.  (FN16) 

UNDERLYING THE CONGRESSIONAL DISCUSSIONS, AND AT THE HEART OF THE
FOURTEENTH AMENDMENT'S GUARANTEE OF EQUAL PROTECTION, WAS THE
ASSUMPTION THAT THE STATE BY STATUTE OR BY "THE GOOD OLD COMMON LAW"
WAS OBLIGATED TO GUARANTEE ALL CITIZENS ACCESS TO PLACES OF PUBLIC
ACCOMMODATION.  THIS OBLIGATION WAS FIRMLY ROOTED IN ANCIENT ANGLO
AMERICAN TRADITION.  IN HIS WORK ON BAILMENTS, JUDGE STORY SPOKE OF
THIS TRADITION: 

"AN INNKEEPER IS BOUND  ...  TO TAKE IN ALL TRAVELLERS AND WAYFARING
PERSONS, AND TO ENTERTAIN THEM, IF HE CAN ACCOMMODATE THEM, FOR A
REASONABLE COMPENSATION; AND HE MUST GUARD THEIR GOODS WITH PROPER
DILIGENCE  ...  .  IF AN INNKEEPER IMPROPERLY REFUSES TO RECEIVE OR
PROVIDE FOR A GUEST, HE IS LIABLE TO BE INDICTED THEREFOR  ...  ." 
STORY, COMMENTARIES ON THE LAW OF BAILMENTS (SCHOULER, 9TH ED., 1878)
SEC. 476.  (FN17) 

     *         *         *         *         * 

"THE FIRST AND MOST GENERAL OBLIGATION ON CARRIERS OF PASSENGERS IS
TO CARRY PASSENGERS WHENEVER THEY OFFER THEMSELVES, AND ARE READY TO
PAY FOR THEIR TRANSPORTATION.  THIS RESULTS FROM THEIR SETTING
THEMSELVES UP, LIKE INNKEEPERS, AND COMMON CARRIERS OF GOODS, FOR A
COMMON PUBLIC EMPLOYMENT ON HIRE.  THEY ARE NO MORE AT LIBERTY TO
REFUSE A PASSENGER, IF THEY HAVE SUFFICIENT ROOM AND ACCOMMODATIONS,
THAN AN INNKEEPER IS TO REFUSE SUITABLE ROOM AND ACCOMMODATIONS TO A
GUEST  ...  ."  ID., AT SECS. 590, 591. 

IT WAS IN THIS VEIN THAT THE SUPREME COURT OF MISSISSIPPI SPOKE WHEN
IN 1873 IT APPLIED THE EQUAL ACCOMMODATIONS PROVISIONS OF THE STATE'S
CIVIL RIGHTS BILL TO A NEGRO REFUSED ADMISSION TO A THEATER: 

"AMONG THOSE CUSTOMS WHICH WE CALL THE COMMON LAW, THAT HAVE COME
DOWN TO US FROM THE REMOTE PAST, ARE RULES WHICH HAVE A SPECIAL
APPLICATION TO THOSE WHO SUSTAIN A QUASI PUBLIC RELATION TO THE
COMMUNITY.  THE WAYFARER AND THE TRAVELER HAD A RIGHT TO DEMAND FOOD
AND LODGING FROM THE INN-KEEPER; THE COMMON CARRIER WAS BOUND TO ACCEPT
ALL PASSENGERS AND GOODS OFFERED FOR TRANSPORTATION, ACCORDING TO HIS
MEANS.  SO, TOO, ALL WHO APPLIED FOR ADMISSION TO THE PUBLIC SHOWS AND
AMUSEMENTS, WERE ENTITLED TO ADMISSION, AND IN EACH INSTANCE, FOR A
REFUSAL, AN ACTION ON THE CASE LAY, UNLESS SUFFICIENT REASON WERE
SHOWN.  THE STATUTE DEALS WITH SUBJECTS WHICH HAVE ALWAYS BEEN UNDER
LEGAL CONTROL."  DONNELL V. STATE, 48 MISS.  661, 680-681. 

IN A SIMILAR MANNER, SENATOR SUMNER, DISCUSSING THE CIVIL RIGHTS ACT
OF 1875, REFERRED TO AND QUOTED FROM HOLINGSHED, STORY, KENT AND
PARSONS ON THE COMMON-LAW DUTIES OF INNKEEPERS AND COMMON CARRIERS TO
TREAT ALL ALIKE.  CONG. GLOBE, 42D CONG., 2D SESS., 382-383.  WITH
REGARD TO "THEATERS AND PLACES OF PUBLIC AMUSEMENT," THE SENATOR
OBSERVED THAT: 

"THEATERS AND OTHER PLACES OF PUBLIC AMUSEMENT, LICENSED BY LAW, ARE
KINDRED TO INNS OR PUBLIC CONVEYANCES, THOUGH LESS NOTICED BY
JURISPRUDENCE.  BUT, LIKE THEIR PROTOTYPES, THEY UNDERTAKE TO PROVIDE
FOR THE PUBLIC UNDER SANCTION OF LAW.  THEY ARE PUBLIC INSTITUTIONS,
REGULATED IF NOT CREATED BY LAW, ENJOYING PRIVILEGES, AND IN
CONSIDERATION THEREOF, ASSUMING DUTIES NOT UNLIKE THOSE OF THE INN AND
THE PUBLIC CONVEYANCE.  FROM ESSENTIAL REASON, THE RULE SHOULD BE THE
SAME WITH ALL.  AS THE INN CANNOT CLOSE ITS DOORS, OR THE PUBLIC
CONVEYANCE REFUSE A SEAT TO ANY PAYING TRAVELER, DECENT IN CONDITION,
SO MUST IT BE WITH THE THEATER AND OTHER PLACES OF PUBLIC AMUSEMENT. 
HERE ARE INSTITUTIONS WHOSE PECULIAR OBJECT IS THE 'PURSUIT OF
HAPPINESS,' WHICH HAS BEEN PLACED AMONG THE EQUAL RIGHTS OF ALL."  ID.,
AT 383.  (FN18) 

THE FIRST SENTENCE OF SEC. 1 OF THE FOURTEENTH AMENDMENT, THE SPIRIT
OF WHICH PERVADES ALL THE CIVIL WAR AMENDMENTS, WAS OBVIOUSLY DESIGNED
TO OVERRULE DRED SCOTT V. SANDFORD, 19 HOW.  393, AND TO ENSURE THAT
THE CONSTITUTIONAL CONCEPT OF CITIZENSHIP WITH ALL ATTENDANT RIGHTS AND
PRIVILEGES WOULD HENCEFORTH EMBRACE NEGROES.  IT FOLLOWS THAT NEGROES
AS CITIZENS NECESSARILY BECAME ENTITLED TO SHARE THE RIGHT, CUSTOMARILY
POSSESSED BY OTHER CITIZENS, OF ACCESS TO PUBLIC ACCOMMODATIONS.  THE
HISTORY OF THE AFFIRMATIVE OBLIGATIONS EXISTING AT COMMON LAW SERVES
PARTLY TO EXPLAIN THE NEGATIVE - "DENY TO ANY PERSON" - LANGUAGE OF THE
FOURTEENTH AMENDMENT.  FOR IT WAS ASSUMED THAT UNDER STATE LAW, WHEN
THE NEGRO'S DISABILITY AS A CITIZEN WAS REMOVED, HE WOULD BE ASSURED
THE SAME PUBLIC CIVIL RIGHTS THAT THE LAW HAD GUARANTEED WHITE
PERSONS.  THIS VIEW PERVADES THE OPINION OF THE SUPREME COURT OF
MICHIGAN IN FERGUSON V. GIES, 82 MICH. 358, 46 N.W. 718, DECIDED IN
1890.  THAT STATE HAD RECENTLY ENACTED A STATUTE PROHIBITING THE DENIAL
TO ANY PERSON, REGARDLESS OF RACE, OF "THE FULL AND EQUAL
ACCOMMODATIONS  ...  AND PRIVILEGES OF  ...  RESTAURANTS  ...  AND ALL
OTHER PLACES OF PUBLIC ACCOMMODATION AND AMUSEMENT  ...  ."  (FN19)  A
NEGRO PLAINTIFF BROUGHT AN ACTION FOR DAMAGES ARISING FROM THE REFUSAL
OF A RESTAURANT OWNER TO SERVE HIM AT A ROW OF TABLES RESERVED FOR
WHITES.  IN UPHOLDING THE PLAINTIFF'S CLAIM, THE MICHIGAN COURT
OBSERVED: 

"THE NEGRO IS NOW, BY THE CONSTITUTION OF THE UNITED STATES, GIVEN
FULL CITIZENSHIP WITH THE WHITE MAN, AND ALL THE RIGHTS AND PRIVILEGES
OF CITIZENSHIP ATTEND HIM WHEREVER HE GOES.  WHATEVER RIGHT A WHITE MAN
HAS IN A PUBLIC PLACE, THE BLACK MAN HAS ALSO, BECAUSE OF SUCH
CITIZENSHIP."  ID., AT 364, 46 N.W., AT 720. 

THE COURT THEN EMPHASIZED THAT IN LIGHT OF THIS CONSTITUTIONAL
PRINCIPLE THE SAME RESULT WOULD FOLLOW WHETHER THE CLAIM RESTED ON A
STATUTE OR ON THE COMMON LAW: 

"THE COMMON LAW AS IT EXISTED IN THIS STATE BEFORE THE PASSAGE OF
THIS STATUTE, AND BEFORE THE COLORED MAN BECAME A CITIZEN UNDER OUR
CONSTITUTION AND LAWS, GAVE TO THE WHITE MAN A REMEDY AGAINST ANY
UNJUST DISCRIMINATION TO THE CITIZEN IN ALL PUBLIC PLACES.  IT MUST BE
CONSIDERED THAT, WHEN THIS SUIT WAS PLANTED, THE COLORED MAN, UNDER THE
COMMON LAW OF THIS STATE, WAS ENTITLED TO THE SAME RIGHTS AND
PRIVILEGES IN PUBLIC PLACES AS THE WHITE MAN, AND HE MUST BE TREATED
THE SAME THERE; AND THAT HIS RIGHT OF ACTION FOR ANY INJURY ARISING
FROM AN UNJUST DISCRIMINATION AGAINST HIM IS JUST AS PERFECT AND SACRED
IN THE COURTS AS THAT OF ANY OTHER CITIZEN.  THIS STATUTE IS ONLY
DECLARATORY OF THE COMMON LAW, AS I UNDERSTAND IT NOW TO EXIST IN THIS
STATE."  ID., AT 365, 46 N.W., AT 720.  (FN20) 

EVIDENCE SUCH AS THIS DEMONSTRATES THAT MR. JUSTICE HARLAN,
DISSENTING IN THE CIVIL RIGHTS CASES, 109 U.S. 3, 26, WAS SURELY
CORRECT WHEN HE OBSERVED: 

"BUT WHAT WAS SECURED TO COLORED CITIZENS OF THE UNITED STATES - AS
BETWEEN THEM AND THEIR RESPECTIVE STATES - BY THE NATIONAL GRANT TO
THEM OF STATE CITIZENSHIP?  WITH WHAT RIGHTS, PRIVILEGES, OR IMMUNITIES
DID THIS GRANT INVEST THEM?  THERE IS ONE, IF THERE BE NO OTHER -
EXEMPTION FROM RACE DISCRIMINATION IN RESPECT OF ANY CIVIL RIGHT
BELONGING TO CITIZENS OF THE WHITE RACE IN THE SAME STATE.  THAT,
SURELY, IS THEIR CONSTITUTIONAL PRIVILEGE WHEN WITHIN THE JURISDICTION
OF OTHER STATES.  AND SUCH MUST BE THEIR CONSTITUTIONAL RIGHT, IN THEIR
OWN STATE, UNLESS THE RECENT AMENDMENTS BE SPLENDID BAUBLES, THROWN OUT
TO DELUDE THOSE WHO DESERVED FAIR AND GENEROUS TREATMENT AT THE HANDS
OF THE NATION.  CITIZENSHIP IN THIS COUNTRY NECESSARILY IMPORTS AT
LEAST EQUALITY OF CIVIL RIGHTS AMONG CITIZENS OF EVERY RACE IN THE SAME
STATE.  IT IS FUNDAMENTAL IN AMERICAN CITIZENSHIP THAT, IN RESPECT OF
SUCH RIGHTS, THERE SHALL BE NO DISCRIMINATION BY THE STATE, OR ITS
OFFICERS, OR BY INDIVIDUALS OR CORPORATIONS EXERCISING PUBLIC FUNCTIONS
OR AUTHORITY, AGAINST ANY CITIZEN BECAUSE OF HIS RACE OR PREVIOUS
CONDITION OF SERVITUDE."  ID., AT 48. 

THE FRAMERS OF THE FOURTEENTH AMENDMENT, REACTING AGAINST THE BLACK
CODES, (FN21) MADE CERTAIN THAT THE STATES COULD NOT FRUSTRATE THE
GUARANTEED EQUALITY BY ENACTING DISCRIMINATORY LEGISLATION OR BY
SANCTIONING DISCRIMINATORY TREATMENT.  AT NO TIME IN THE CONSIDERATION
OF THE AMENDMENT WAS IT SUGGESTED THAT THE STATES COULD ACHIEVE THE
SAME PROHIBITED RESULT BY WITHDRAWING THE TRADITIONAL RIGHT OF ACCESS
TO PUBLIC PLACES.  IN GRANTING NEGROES CITIZENSHIP AND THE EQUAL
PROTECTION OF THE LAWS, IT WAS NEVER THOUGHT THAT THE STATES COULD
PERMIT THE PROPRIETORS OF INNS AND PUBLIC PLACES TO RESTRICT THEIR
GENERAL INVITATION TO THE PUBLIC AND TO CITIZENS IN ORDER TO EXCLUDE
THE NEGRO PUBLIC AND NEGRO CITIZENS.  THE FOURTEENTH AMENDMENT WAS
THEREFORE CAST IN TERMS UNDER WHICH JUDICIAL POWER WOULD COME INTO PLAY
WHERE THE STATE WITHDREW OR OTHERWISE DENIED THE GUARANTEED PROTECTION
"FROM LEGAL DISCRIMINATIONS, IMPLYING INFERIORITY IN CIVIL SOCIETY,
LESSENING THE SECURITY OF THE NEGROES' ENJOYMENT OF THE RIGHTS WHICH
OTHERS ENJOY  ...  ."  STRAUDER V. WEST VIRGINIA, 100 U.S., AT 308. 

THUS A FUNDAMENTAL ASSUMPTION OF THE FOURTEENTH AMENDMENT WAS THAT
THE STATES WOULD CONTINUE, AS THEY HAD FOR AGES, TO ENFORCE THE RIGHT
OF CITIZENS FREELY TO ENTER PUBLIC PLACES.  THIS ASSUMPTION CONCERNING
THE AFFIRMATIVE DUTY ATTACHING TO PLACES OF PUBLIC ACCOMMODATION WAS SO
ROOTED IN THE EXPERIENCE OF THE WHITE CITIZENRY THAT LAW AND CUSTOM
BLENDED TOGETHER INDISTINGUISHABLY.  (FN22) THUS IT SEEMED NATURAL FOR
THE SUPREME COURT OF MISSISSIPPI, CONSIDERING A PUBLIC ACCOMMODATIONS
PROVISION IN A CIVIL RIGHTS STATUTE, TO REFER TO "THOSE CUSTOMS WHICH
WE CALL THE COMMON LAW, THAT HAVE COME DOWN TO US FROM THE REMOTE
PAST," DONNELL V. STATE, 48 MISS., AT 680, AND THUS IT SEEMS
SIGNIFICANT THAT THE VARIOUS PROPOSALS FOR FEDERAL LEGISLATION OFTEN
INTERCHANGEABLY REFERRED TO DISCRIMINATORY ACTS DONE UNDER "LAW" OR
UNDER "CUSTOM."  (FN23)  IN SUM, THEN, IT WAS UNDERSTOOD THAT UNDER THE
FOURTEENTH AMENDMENT THE DUTIES OF THE PROPRIETORS OF PLACES OF PUBLIC
ACCOMMODATION WOULD REMAIN AS THEY HAD LONG BEEN AND THAT THE STATES
WOULD NOT BE AFFIRMATIVELY OBLIGATED TO INSURE THAT THESE RIGHTS RAN TO
NEGRO AS WELL AS WHITE CITIZENS. 

THE CIVIL RIGHTS ACT OF 1875, ENACTED SEVEN YEARS AFTER THE
FOURTEENTH AMENDMENT, SPECIFICALLY PROVIDED THAT ALL CITIZENS MUST HAVE
"THE FULL AND EQUAL ENJOYMENT OF THE ACCOMMODATIONS, ADVANTAGES,
FACILITIES, AND PRIVILEGES OF INNS, PUBLIC CONVEYANCES ON LAND OR
WATER, THEATERS, AND OTHER PLACES OF PUBLIC AMUSEMENT  ...  ."  18
STAT. 335.  THE CONSTITUTIONALITY OF THIS FEDERAL LEGISLATION WAS
REVIEWED BY THIS COURT IN 1883 IN THE CIVIL RIGHTS CASES, 109 U.S. 3. 
THE DISSENT IN THE PRESENT CASE PURPORTS TO FOLLOW THE "STATE ACTION"
CONCEPT ARTICULATED IN THAT EARLY DECISION.  THERE THE COURT HAD
DECLARED THAT UNDER THE FOURTEENTH AMENDMENT: 

"IT IS STATE ACTION OF A PARTICULAR CHARACTER THAT IS PROHIBITED. 
INDIVIDUAL INVASION OF INDIVIDUAL RIGHTS IS NOT THE SUBJECT-MATTER OF
THE AMENDMENT.  IT HAS A DEEPER AND BROADER SCOPE.  IT NULLIFIES AND
MAKES VOID ALL STATE LEGISLATION, AND STATE ACTION OF EVERY KIND, WHICH
IMPAIRS THE PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES,
OR WHICH INJURES THEM IN LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS
OF LAW, OR WHICH DENIES TO ANY OF THEM THE EQUAL PROTECTION OF THE
LAWS."  109 U.S., AT 11. 

MR. JUSTICE BRADLEY, WRITING FOR THE COURT OVER THE STRONG DISSENT OF
MR. JUSTICE HARLAN, HELD THAT A PROPRIETOR'S RACIALLY MOTIVATED DENIAL
OF EQUAL ACCESS TO A PUBLIC ACCOMMODATION DID NOT, WITHOUT MORE,
INVOLVE STATE ACTION.  IT IS OF CENTRAL IMPORTANCE TO THE CASE AT BAR
THAT THE COURT'S DECISION WAS EXPRESSLY PREDICATED: 

"ON THE ASSUMPTION THAT A RIGHT TO ENJOY EQUAL ACCOMMODATION AND
PRIVILEGES IN ALL INNS, PUBLIC CONVEYANCES, AND PLACES OF PUBLIC
AMUSEMENT, IS ONE OF THE ESSENTIAL RIGHTS OF THE CITIZEN WHICH NO STATE
CAN ABRIDGE OR INTERFERE WITH."  ID., AT 19. 

THE COURT ADDED THAT: 

"INNKEEPERS AND PUBLIC CARRIERS, BY THE LAWS OF ALL THE STATES, SO FAR
AS WE ARE AWARE, (FN24) ARE BOUND, TO THE EXTENT OF THEIR FACILITIES,
TO FURNISH PROPER ACCOMMODATION TO ALL UNOBJECTIONABLE PERSONS WHO IN
GOOD FAITH APPLY FOR THEM."  ID., AT 25.  (FN25) 

THIS ASSUMPTION, WHATEVER ITS VALIDITY AT THE TIME OF THE 1883
DECISION, HAS PROVED TO BE UNFOUNDED.  ALTHOUGH RECONSTRUCTION ENDED IN
1877, SIX YEARS BEFORE THE CIVIL RIGHTS CASES, THERE WAS LITTLE
IMMEDIATE ACTION IN THE SOUTH TO ESTABLISH SEGREGATION, IN LAW OR IN
FACT, IN PLACES OF PUBLIC ACCOMMODATION.  (FN26)  THIS BENEVOLENT, OR
PERHAPS PASSIVE, ATTITUDE ENDURED ABOUT A DECADE AND THEN IN THE LATE
1880'S STATES BEGAN TO ENACT LAWS MANDATING UNEQUAL TREATMENT IN PUBLIC
PLACES.   (FN27)  FINALLY, THREE-QUARTERS OF A CENTURY LATER, AFTER
THIS COURT DECLARED SUCH LEGISLATIVE ACTION INVALID, SOME STATES BEGAN
TO UTILIZE AND MAKE AVAILABLE THEIR COMMON LAW TO SANCTION SIMILAR
DISCRIMINATORY TREATMENT. 

A STATE APPLYING ITS STATUTORY OR COMMON LAW (FN28) TO DENY RATHER
THAN PROTECT THE RIGHT OF ACCESS TO PUBLIC ACCOMMODATIONS HAS CLEARLY
MADE THE ASSUMPTION OF THE OPINION IN THE CIVIL RIGHTS CASES
INAPPLICABLE AND HAS, AS THE AUTHOR OF THAT OPINION WOULD HIMSELF HAVE
RECOGNIZED, DENIED THE CONSTITUTIONALLY INTENDED EQUAL PROTECTION. 
INDEED, IN LIGHT OF THE ASSUMPTION SO EXPLICITLY STATED IN THE CIVIL
RIGHTS CASES, IT IS SIGNIFICANT THAT MR. JUSTICE BRADLEY, WHO SPOKE FOR
THE COURT, HAD EARLIER IN CORRESPONDENCE WITH CIRCUIT JUDGE WOODS
EXPRESSED THE VIEW THAT THE FOURTEENTH AMENDMENT "NOT ONLY PROHIBITS
THE MAKING OR ENFORCING OF LAWS WHICH SHALL ABRIDGE THE PRIVILEGES OF
THE CITIZEN; BUT PROHIBITS THE STATES FROM DENYING TO ALL PERSONS
WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS."  (FN29)  IN
TAKING THIS POSITION, WHICH IS CONSISTENT WITH HIS OPINION AND THE
ASSUMPTION IN THE CIVIL RIGHTS CASES, (FN30) HE CONCLUDED THAT:
"DENYING INCLUDES INACTION AS WELL AS ACTION.  AND DENYING THE EQUAL
PROTECTION OF THE LAWS INCLUDES THE OMISSION TO PROTECT, AS WELL AS THE
OMISSION TO PASS LAWS FOR PROTECTION."  (FN31)  THESE VIEWS ARE FULLY
CONSONANT WITH THIS COURT'S RECOGNITION THAT STATE CONDUCT WHICH MIGHT
BE DESCRIBED AS "INACTION" CAN NEVERTHELESS CONSTITUTE RESPONSIBLE
"STATE ACTION" WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT.  SEE,
E.G., MARSH V. ALABAMA, 326 U.S. 501; SHELLEY V. KRAEMER, 334 U.S. 1;
TERRY V. ADAMS, 345 U.S. 461; BARROWS V. JACKSON, 346 U.S. 249.    IN
THE PRESENT CASE THE RESPONSIBILITY OF THE JUDICIARY IN APPLYING THE
PRINCIPLES OF THE FOURTEENTH AMENDMENT IS CLEAR.  THE STATE OF MARYLAND
HAS FAILED TO PROTECT PETITIONERS' CONSTITUTIONAL RIGHT TO PUBLIC
ACCOMMODATIONS AND IS NOW PROSECUTING THEM FOR ATTEMPTING TO EXERCISE
THAT RIGHT.  THE DECISION OF MARYLAND'S HIGHEST COURT IN SUSTAINING
THESE TRESPASS CONVICTIONS CANNOT BE DESCRIBED AS "NEUTRAL," FOR THE
DECISION IS AS AFFIRMATIVE IN EFFECT AS IF THE STATE HAD ENACTED AN
UNCONSTITUTIONAL LAW EXPLICITLY AUTHORIZING RACIAL DISCRIMINATION IN
PLACES OF PUBLIC ACCOMMODATION.  A STATE, OBLIGATED UNDER THE
FOURTEENTH AMENDMENT TO MAINTAIN A SYSTEM OF LAW IN WHICH NEGROES ARE
NOT DENIED PROTECTION IN THEIR CLAIM TO BE TREATED AS EQUAL MEMBERS OF
THE COMMUNITY, MAY NOT USE ITS CRIMINAL TRESPASS LAWS TO FRUSTRATE THE
CONSTITUTIONALLY GRANTED RIGHT.  NOR, IT SHOULD BE ADDED, MAY A STATE
FRUSTRATE THIS RIGHT BY LEGITIMATING A PROPRIETOR'S ATTEMPT AT SELF
HELP.  TO PERMIT SELF-HELP WOULD BE TO DISREGARD THE PRINCIPLE THAT
"TODAY, NO LESS THAN 50 YEARS AGO, THE SOLUTION TO THE PROBLEMS GROWING
OUT OF RACE RELATIONS 'CANNOT BE PROMOTED BY DEPRIVING CITIZENS OF
THEIR CONSTITUTIONAL RIGHTS AND PRIVILEGES,' BUCHANAN V. WARLEY  ...
245 U.S., AT 80-81."  WATSON V. CITY OF MEMPHIS, 373 U.S. 526, 539.  AS
DECLARED IN COOPER V. AARON, 358 U.S. 1, 16, "LAW AND ORDER ARE NOT ...
TO BE PRESERVED BY DEPRIVING THE NEGRO  ...  OF HIS CONSTITUTIONAL
RIGHTS." 

IN SPITE OF THIS, THE DISSENT INTIMATES THAT ITS VIEW BEST COMPORTS
WITH THE NEEDS OF LAW AND ORDER.  THUS IT IS SAID:  "IT WOULD BETRAY
OUR WHOLE PLAN FOR A TRANQUIL AND ORDERLY SOCIETY TO SAY THAT A
CITIZEN, BECAUSE OF HIS PERSONAL PREJUDICES, HABITS, ATTITUDES, OR
BELIEFS, IS CAST OUTSIDE THE LAW'S PROTECTION AND CANNOT CALL FOR THE
AID OF OFFICERS SWORN TO UPHOLD THE LAW AND PRESERVE THE PEACE."  POST,
AT 327-328.  THIS STATEMENT, TO WHICH ALL WILL READILY AGREE, SLIDES
OVER THE CRITICAL QUESTION:  WHOSE CONDUCT IS ENTITLED TO THE "LAW'S
PROTECTION"?  OF COURSE EVERY MEMBER OF THIS COURT AGREES THAT LAW AND
ORDER MUST PREVAIL; THE QUESTION IS WHETHER THE WEIGHT AND PROTECTIVE
STRENGTH OF LAW AND ORDER WILL BE CAST IN FAVOR OF THE CLAIMS OF THE
PROPRIETORS OR IN FAVOR OF THE CLAIMS OF PETITIONERS.  IN MY VIEW THE
FOURTEENTH AMENDMENT RESOLVED THIS ISSUE IN FAVOR OF THE RIGHT OF
PETITIONERS TO PUBLIC ACCOMMODATIONS AND IT FOLLOWS THAT IN THE
EXERCISE OF THAT CONSTITUTIONALLY GRANTED RIGHT THEY ARE ENTITLED TO
THE "LAW'S PROTECTION."  TODAY, AS LONG AGO, "THE VERY ESSENCE OF CIVIL
LIBERTY CERTAINLY CONSISTS IN THE RIGHT OF EVERY INDIVIDUAL TO CLAIM
THE PROTECTION OF THE LAWS  ...  ."  MARBURY V. MADISON, 1 CRANCH 137,
163. 

                                        IV. 

MY BROTHER DOUGLAS CONVINCINGLY DEMONSTRATES THAT THE DISSENT HAS
CONSTRUCTED A STRAW MAN BY SUGGESTING THAT THIS CASE INVOLVES "A
PROPERTY OWNER'S RIGHT TO CHOOSE HIS SOCIAL OR BUSINESS ASSOCIATES." 
POST, AT 343.  THE RESTAURANT INVOLVED IN THIS CASE IS CONCEDEDLY OPEN
TO A LARGE SEGMENT OF THE PUBLIC.  RESTAURANTS SUCH AS THIS DAILY OPEN
THEIR DOORS TO MILLIONS OF AMERICANS.  THESE ESTABLISHMENTS PROVIDE A
PUBLIC SERVICE AS NECESSARY TODAY AS THE INNS AND CARRIERS OF
BLACKSTONE'S TIME.  IT SHOULD BE RECOGNIZED THAT THE CLAIM ASSERTED BY
THE NEGRO PETITIONERS CONCERNS SUCH PUBLIC ESTABLISHMENTS AND DOES NOT
INFRINGE UPON THE RIGHTS OF PROPERTY OWNERS OR PERSONAL ASSOCIATIONAL
INTERESTS. 

PETITIONERS FRANKLY STATE THAT THE "EXTENSION OF CONSTITUTIONAL
GUARANTEES TO THE AUTHENTICALLY PRIVATE CHOICES OF MAN IS WHOLLY
UNACCEPTABLE, AND ANY CONSTITUTIONAL THEORY LEADING TO THAT RESULT
WOULD HAVE REDUCED ITSELF TO ABSURDITY."  INDEED, THE CONSTITUTIONAL
PROTECTION EXTENDED TO PRIVACY AND PRIVATE ASSOCIATION ASSURES AGAINST
THE IMPOSITION OF SOCIAL EQUALITY.  AS NOTED BEFORE, THE CONGRESS THAT
ENACTED THE FOURTEENTH AMENDMENT WAS PARTICULARLY CONSCIOUS THAT THE
"CIVIL" RIGHTS OF MAN SHOULD BE DISTINGUISHED FROM HIS "SOCIAL"
RIGHTS.  (FN32)  PREJUDICE AND BIGOTRY IN ANY FORM ARE REGRETTABLE, BUT
IT IS THE CONSTITUTIONAL RIGHT OF EVERY PERSON TO CLOSE HIS HOME OR
CLUB TO ANY PERSON OR TO CHOOSE HIS SOCIAL INTIMATES AND BUSINESS
PARTNERS SOLELY ON THE BASIS OF PRESONAL PREJUDICES INCLUDING RACE. 
THESE AND OTHER RIGHTS PERTAINING TO PRIVACY AND PRIVATE ASSOCIATION
ARE THEMSELVES CONSTITUTIONALLY PROTECTED LIBERTIES. 

WE DEAL HERE, HOWEVER, WITH A CLAIM OF EQUAL ACCESS TO PUBLIC
ACCOMMODATIONS.  THIS IS NOT A CLAIM WHICH SIGNIFICANTLY IMPINGES UPON
PERSONAL ASSOCIATIONAL INTERESTS; NOR IS IT A CLAIM INFRINGING UPON THE
CONTROL OF PRIVATE PROPERTY NOT DEDICATED TO PUBLIC USE.  A JUDICIAL
RULING ON THIS CLAIM INEVITABLY INVOLVES THE LIBERTIES AND FREEDOMS
BOTH OF THE RESTAURANT PROPRIETOR AND OF THE NEGRO CITIZEN.  THE
DISSENT WOULD HOLD IN EFFECT THAT THE RESTAURANT PROPRIETOR'S INTEREST
IN CHOOSING CUSTOMERS ON THE BASIS OF RACE IS TO BE PREFERRED TO THE
NEGRO'S RIGHT TO EQUAL TREATMENT BY A BUSINESS SERVING THE PUBLIC.  THE
HISTORY AND PURPOSES OF THE FOURTEENTH AMENDMENT INDICATE, HOWEVER,
THAT THE AMENDMENT RESOLVES THIS APPARENT CONFLICT OF LIBERTIES IN
FAVOR OF THE NEGRO'S RIGHT TO EQUAL PUBLIC ACCOMMODATIONS.  AS THE
COURT SAID IN MARSH V. ALABAMA, 326 U.S. 501, 506: "THE MORE AN OWNER,
FOR HIS ADVANTAGE, OPENS UP HIS PROPERTY FOR USE BY THE PUBLIC IN
GENERAL, THE MORE DO HIS RIGHTS BECOME CIRCUMSCRIBED BY THE STATUTORY
AND CONSTITUTIONAL RIGHTS OF THOSE WHO USE IT."  (FN33)  THE BROAD
ACCEPTANCE OF THE PUBLIC IN THIS AND IN OTHER RESTAURANTS CLEARLY
DEMONSTRATES THAT THE PROPRIETOR'S INTEREST IN PRIVATE OR UNRESTRICTED
ASSOCIATION IS SLIGHT.  (FN34)  THE RELATIONSHIP BETWEEN THE MODERN
INNKEEPER OR RESTAURATEUR AND THE CUSTOMER IS RELATIVELY IMPERSONAL AND
EVANESCENT.  THIS IS HIGHLIGHTED BY CASES SUCH AS BARR V. CITY OF
COLUMBIA, ANTE, AT 146, BOUIE V. CITY OF COLUMBIA, POST, AT 347, AND
ROBINSON V. FLORIDA, ANTE, AT 153, IN WHICH NEGROES ARE INVITED INTO
ALL DEPARTMENTS OF THE STORE BUT NONETHELESS ORDERED, IN THE NAME OF
PRIVATE ASSOCIATION OR PROPERTY RIGHTS, NOT TO PURCHASE AND EAT FOOD,
AS OTHER CUSTOMERS DO, ON THE PREMISES.  AS THE HISTORY OF THE COMMON
LAW AND, INDEED, OF OUR OWN TIMES GRAPHICALLY ILLUSTRATES, THE
INTERESTS OF PROPRIETORS OF PLACES OF PUBLIC ACCOMMODATION HAVE ALWAYS
BEEN ADAPTED TO THE CITIZEN'S FELT NEED FOR PUBLIC ACCOMMODATIONS, A
NEED WHICH IS BASIC AND DEEPROOTED.  THIS HISTORY AND THE PURPOSES OF
THE FOURTEENTH AMENDMENT COMPEL THE CONCLUSION THAT THE RIGHT TO BE
SERVED IN PLACES OF PUBLIC ACCOMMODATION REGARDLESS OF COLOR CANNOT
CONSTITUTIONALLY BE SUBORDINATED TO THE PROPRIETOR'S INTEREST IN
DISCRIMINATORILY REFUSING SERVICE. 

OF COURSE, ALTHOUGH THE PRESENT CASE INVOLVES THE RIGHT TO SERVICE IN
A RESTAURANT, THE FUNDAMENTAL PRINCIPLES OF THE FOURTEENTH AMENDMENT
APPLY WITH EQUAL FORCE TO OTHER PLACES OF PUBLIC ACCOMMODATION AND
AMUSEMENT.  CLAIMS SO IMPORTANT AS THOSE PRESENTED HERE CANNOT BE
DISMISSED BY ASSERTING THAT THE FOURTEENTH AMENDMENT, WHILE CLEARLY
ADDRESSED TO INNS AND PUBLIC CONVEYANCES, DID NOT CONTEMPLATE LUNCH
COUNTERS AND SODA FOUNTAINS.  INSTITUTIONS SUCH AS THESE SERVE
ESSENTIALLY THE SAME NEEDS IN MODERN LIFE AS DID THE INNKEEPER AND THE
CARRIER AT COMMON LAW.  (FN35)  IT WAS TO GUARD AGAINST NARROW
CONCEPTIONS THAT CHIEF JUSTICE MARSHALL ADMONISHED THE COURT NEVER TO
FORGET "THAT IT IS A CONSTITUTION WE ARE EXPOUNDING  ...  A
CONSTITUTION INTENDED TO ENDURE FOR AGES TO COME, AND, CONSEQUENTLY, TO
BE ADAPTED TO THE VARIOUS CRISES OF HUMAN AFFAIRS."  MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, 407, 415.  TODAY, AS THROUGHOUT THE HISTORY OF
THE COURT, WE SHOULD REMEMBER THAT "IN DETERMINING WHETHER A PROVISION
OF THE CONSTITUTION APPLIES TO A NEW SUBJECT MATTER, IT IS OF LITTLE
SIGNIFICANCE THAT IT IS ONE WITH WHICH THE FRAMERS WERE NOT FAMILIAR. 
FOR IN SETTING UP AN ENDURING FRAMEWORK OF GOVERNMENT THEY UNDERTOOK TO
CARRY OUT FOR THE INDEFINITE FUTURE AND IN ALL THE VICISSITUDES OF THE
CHANGING AFFAIRS OF MEN, THOSE FUNDAMENTAL PURPOSES WHICH THE
INSTRUMENT ITSELF DISCLOSES."  UNITED STATES V. CLASSIC, 313 U.S. 299,
316. 

V. 

IN MY VIEW THE HISTORICAL EVIDENCE DEMONSTRATES THAT THE TRADITIONAL
RIGHTS OF ACCESS TO PLACES OF PUBLIC ACCOMMODATION WERE QUITE FAMILIAR
TO CONGRESSMEN AND TO THE GENERAL PUBLIC WHO NATURALLY ASSUMED THAT THE
FOURTEENTH AMENDMENT EXTENDED THESE TRADITIONAL RIGHTS TO NEGROES.  BUT
EVEN IF THE HISTORICAL EVIDENCE WERE NOT AS CONVINCING AS I BELIEVE IT
TO BE, THE LOGIC OF BROWN V. BOARD OF EDUCATION, 347 U.S. 483, BASED AS
IT WAS ON THE FUNDAMENTAL PRINCIPLE OF CONSTITUTIONAL INTERPRETATION
PROCLAIMED BY CHIEF JUSTICE MARSHALL, (FN36) REQUIRES THAT PETITIONERS'
CLAIM BE SUSTAINED. 

IN BROWN, AFTER STATING THAT THE AVAILABLE HISTORY WAS "INCONCLUSIVE"
ON THE SPECIFIC ISSUE OF SEGREGATED PUBLIC SCHOOLS, THE COURT WENT ON
TO SAY: 

"IN APPROACHING THIS PROBLEM, WE CANNOT TURN THE CLOCK BACK TO 1868
WHEN THE AMENDMENT WAS ADOPTED, OR EVEN TO 1896 WHEN PLESSY V. FERGUSON
WAS WRITTEN.  WE MUST CONSIDER PUBLIC EDUCATION IN THE LIGHT OF ITS
FULL DEVELOPMENT AND ITS PRESENT PLACE IN AMERICAN LIFE THROUGHOUT THE
NATION.  ONLY IN THIS WAY CAN IT BE DETERMINED IF SEGREGATION IN PUBLIC
SCHOOLS DEPRIVES THESE PLAINTIFFS OF THE EQUAL PROTECTION OF THE
LAWS."  347 U.S., AT 492-493. 

THE DISSENT MAKES NO EFFORT TO ASSESS THE STATUS OF PLACES OF PUBLIC
ACCOMMODATION "IN THE LIGHT OF" THEIR "FULL DEVELOPMENT AND  ...
PRESENT PLACE" IN THE LIFE OF AMERICAN CITIZENS.  IN FAILING TO ADHERE
TO THAT APPROACH THE DISSENT IGNORES A PERVASIVE PRINCIPLE OF
CONSTITUTIONAL ADJUDICATION AND DEPARTS FROM THE ULTIMATE LOGIC OF
BROWN.  AS MR. JUSTICE HOLMES SO APTLY SAID: 

"WHEN WE ARE DEALING WITH WORDS THAT ALSO ARE A CONSTITUENT ACT, LIKE
THE CONSTITUTION OF THE UNITED STATES, WE MUST REALIZE THAT THEY HAVE
CALLED INTO LIFE A BEING THE DEVELOPMENT OF WHICH COULD NOT HAVE BEEN
FORESEEN COMPLETELY BY THE MOST GIFTED OF ITS BEGETTERS.  IT WAS ENOUGH
FOR THEM TO REALIZE OR TO HOPE THAT THEY HAD CREATED AN ORGANISM; IT
HAS TAKEN A CENTURY AND HAS COST THEIR SUCCESSORS MUCH SWEAT AND BLOOD
TO PROVE THAT THEY CREATED A NATION.  THE CASE BEFORE US MUST BE
CONSIDERED IN THE LIGHT OF OUR WHOLE EXPERIENCE AND NOT MERELY IN THAT
OF WHAT WAS SAID A HUNDRED YEARS AGO."  MISSOURI V. HOLLAND, 252 U.S.
416, 433. 

                                  CONCLUSION. 

THE CONSTITUTIONAL RIGHT OF ALL AMERICANS TO BE TREATED AS EQUAL
MEMBERS OF THE COMMUNITY WITH RESPECT TO PUBLIC ACCOMMODATIONS IS A
CIVIL RIGHT GRANTED BY THE PEOPLE IN THE CONSTITUTION - A RIGHT WHICH
"IS TOO IMPORTANT IN OUR FREE SOCIETY TO BE STRIPPED OF JUDICIAL
PROTECTION."  CF. WESBERRY V. SANDERS, 376 U.S. 1, 7; BAKER V. CARR,
369 U.S. 186.  THIS IS NOT TO SUGGEST THAT CONGRESS LACKS AUTHORITY
UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT, OR UNDER THE COMMERCE CLAUSE,
ART. I, SEC. 8, TO IMPLEMENT THE RIGHTS PROTECTED BY SEC. 1 OF THE
FOURTEENTH AMENDMENT.  IN THE GIVE-AND-TAKE OF THE LEGISLATIVE PROCESS,
CONGRESS CAN FASHION A LAW DRAWING THE GUIDELINES NECESSARY AND
APPROPRIATE TO FACILITATE PRACTICAL ADMINISTRATION AND TO DISTINGUISH
BETWEEN GENUINELY PUBLIC AND PRIVATE ACCOMMODATIONS.  IN CONTRAST, WE
CAN PASS ONLY ON JUSTICIABLE ISSUES COMING HERE ON A CASE-TO-CASE
BASIS. 

IT IS, AND SHOULD BE, MORE TRUE TODAY THAN IT WAS OVER A CENTURY AGO
THAT "THE GREAT ADVANTAGE OF THE AMERICANS IS THAT  ...  THEY ARE BORN
EQUAL" (FN37) AND THAT IN THE EYES OF THE LAW THAT "ARE ALL OF THE SAME
ESTATE."  THE FIRST CHIEF JUSTICE OF THE UNITED STATES, JOHN JAY, SPOKE
OF THE "FREE AIR" OF AMERICAN LIFE.  THE GREAT PURPOSE OF THE
FOURTEENTH AMENDMENT IS TO KEEP IT FREE AND EQUAL.  UNDER THE
CONSTITUTION NO AMERICAN CAN, OR SHOULD, BE DENIED RIGHTS FUNDAMENTAL
TO FREEDOM AND CITIZENSHIP.  I THEREFORE JOIN IN REVERSING THESE
TRESPASS CONVICTIONS. 

FN1  SEE GENERALLY FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT
(1908); HARRIS, THE QUEST FOR EQUALITY (1960). 

FN2  E.G., ANDERSON V. MARTIN, 375 U.S. 399; GOSS V. BOARD OF
EDUCATION, 373 U.S. 683; WATSON V. CITY OF MEMPHIS, 373 U.S. 526;
LOMBARD V. LOUISIANA, 373 U.S. 267; PETERSON V. CITY OF GREENVILLE, 373
U.S. 244; JOHNSON V. VIRGINIA, 373 U.S. 61; TURNER V. CITY OF MEMPHIS,
369 U.S. 350; BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715;
BOYNTON V. VIRGINIA, 364 U.S. 454; GOMILLION V. LIGHTFOOT, 364 U.S.
339; COOPER V. AARON, 358 U.S. 1.  AS PROFESSOR FREUND HAS OBSERVED,
BROWN AND THE DECISIONS THAT FOLLOWED IT "WERE NOT AN ABRUPT DEPARTURE
IN CONSTITUTIONAL LAW OR A NOVEL INTERPRETATION OF THE GUARANTEE OF
EQUAL PROTECTION OF THE LAWS.  THE OLD DOCTRINE OF SEPARATE-BUT-EQUAL,
ANNOUNCED IN 1896, HAD BEEN STEADILY ERODED FOR AT LEAST A GENERATION
BEFORE THE SCHOOL CASES, IN THE WAY THAT PRECEDENTS ARE WHITTLED DOWN
UNTIL THEY FINALLY COLLAPSE."  FREUND, THE SUPREME COURT OF THE UNITED
STATES (1961), P. 173.  SEE, E.G., MISSOURI EX REL.  GAINES V. CANADA,
305 U.S. 337; SWEATT V. PAINTER, 339 U.S. 629; MCLAURIN V. OKLAHOMA
STATE REGENTS, 339 U.S. 637.    FN3  SEE SUPRA, NOTE 2. 

FN4  SEE, E.G., CONG. GLOBE, 38TH CONG., 1ST SESS., 839; CONG. GLOBE,
38TH CONG., 1ST SESS., 1156-1157; CONG. GLOBE, 42D CONG., 2D SESS., 381
383; 2 CONG. REC.  4081-4082.  FOR THE GENERAL ATTITUDE OF POST-CIVIL
WAR CONGRESSES TOWARD DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION,
SEE FRANK AND MUNRO, THE ORIGINAL UNDERSTANDING OF "EQUAL PROTECTION OF
THE LAWS."  50 COL. L. REV. 131, 150-153 (1950). 

FN5  THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27, WHICH WAS THE
PRECURSOR OF THE FOURTEENTH AMENDMENT, DID NOT SPECIFICALLY ENUMERATE
SUCH RIGHTS BUT, LIKE THE FOURTEENTH AMENDMENT, WAS NEVERTHELESS
UNDERSTOOD TO OPEN TO NEGROES PLACES OF PUBLIC ACCOMMODATION.  SEE
FLACK, OP. CIT., SUPRA, NOTE 1, AT 45 (OPINION OF THE PRESS); FRANK AND
MUNRO, SUPRA, NOTE 4, AT 150-153; LEWIS, THE SIT-IN CASES:  GREAT
EXPECTATIONS, 1963 SUP. CT. REV.  101, 145-146.  SEE ALSO COGER V. THE
NORTH WEST.  UNION PACKET CO., 37 IOWA 145; FERGUSON V. GIES, 82 MICH.
358, 46 N.W. 718.  THE GOVERNMENT, IN ITS BRIEF IN THIS COURT, HAS
AGREED WITH THESE AUTHORITIES:  "WE MAY FEEL SURE THAT ANY MEMBER OF
CONGRESS WOULD HAVE ANSWERED AFFIRMATIVELY IF HE HAD BEEN ASKED IN 1868
WHETHER THE CIVIL RIGHTS ACT OF 1866 AND THE FOURTEENTH AMENDMENT WOULD
HAVE THE EFFECT OF SECURING NEGROES THE SAME RIGHT AS OTHER MEMBERS OF
THE PUBLIC TO USE HOTELS, TRAINS AND PUBLIC CONVEYANCES." 

FN6  JUSTICE SIMRALL, A KENTUCKIAN BY BIRTH, WAS A PLANTATION OWNER
AND A PROMINENT MISSISSIPPI LAWYER AND MISSISSIPPI STATE LEGISLATOR
BEFORE THE CIVIL WAR.  SHORTLY BEFORE THE WAR, HE ACCEPTED A CHAIR OF
LAW AT THE UNIVERSITY OF LOUISVILLE; HE CONTINUED IN THAT POSITION
UNTIL THE BEGINNING OF THE WAR WHEN HE RETURNED TO HIS PLANTATION IN
MISSISSIPPI.  HE SUBSEQUENTLY SERVED FOR NINE YEARS ON THE MISSISSIPPI
SUPREME COURT, THE LAST THREE YEARS SERVING AS CHIEF JUSTICE.  HE LATER
LECTURED AT THE UNIVERSITY OF MISSISSIPPI AND IN 1890 WAS ELECTED A
MEMBER OF THE CONSTITUTIONAL CONVENTION OF MISSISSIPPI AND SERVED AS
CHAIRMAN OF THE JUDICIARY COMMITTEE.  5 NATIONAL CYCLOPAEDIA OF
AMERICAN BIOGRAPHY (1907), 456; 1 ROWLAND, COURTS, JUDGES, AND LAWYERS
OF MISSISSIPPI 1798-1935, (1935), 98-99. 

FN7  CONG. GLOBE, 39TH CONG., 1ST SESS., AT 2459, 2462, 2465, 2467,
2538; FLACK, OP.  CIT., SUPRA, NOTE 1, AT 94; HARRIS, OP. CIT., SUPRA,
NOTE 1, AT 30-40; MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960),
326-363; GRESSMAN, THE UNHAPPY HISTORY OF CIVIL RIGHTS LEGISLATION, 50
MICH. L. REV. 1323, 1328-1332 (1952).  A MAJORITY OF THE COURTS THAT
CONSIDERED THE ACT OF 1866 HAD ACCEPTED ITS CONSTITUTIONALITY.  UNITED
STATES V. RHODES, 27 FED. CAS. 785 (NO. 16,151); IN RE TURNER, 24 FED.
CAS. 337 (NO. 14,247); SMITH V. MOODY, 26 IND. 299; HART V. HOSS &
ELDER, 26 LA. ANN. 90.  CONTRA, PEOPLE V. BRADY, 40 CAL. 198 (COMPARE
PEOPLE V. WASHINGTON, 36 CAL. 658); BOWLIN V. COMMONWEALTH, 65 KY. 5. 

FN8  AS MR. JUSTICE BLACK POINTED OUT IN THE APPENDIX TO HIS DISSENT
IN ADAMSON V. CALIFORNIA, 332 U.S. 46, 68, 107-108: 

"BOTH PROPONENTS AND OPPONENTS OF SEC. 1 OF THE FOURTEENTH AMENDMENT
SPOKE OF ITS RELATION TO THE CIVIL RIGHTS BILL WHICH HAD BEEN
PREVIOUSLY PASSED OVER THE PRESIDENT'S VETO.  SOME CONSIDERED THAT THE
AMENDMENT SETTLED ANY DOUBTS THERE MIGHT BE AS TO THE CONSTITUTIONALITY
OF THE CIVIL RIGHTS BILL.  CONG. GLOBE, (39TH CONG., 1ST SESS.,) 2511,
2896.  OTHERS MAINTAINED THAT THE CIVIL RIGHTS BILL WOULD BE
UNCONSTITUTIONAL UNLESS AND UNTIL THE AMENDMENT WAS ADOPTED.  CONG.
GLOBE, 2461, 2502, 2506, 2513, 2961.  SOME THOUGHT THAT AMENDMENT WAS
NOTHING BUT THE CIVIL RIGHTS BILL 'IN ANOTHER SHAPE.'  CONG. GLOBE,
2459, 2462, 2465, 2467, 2498, 2502." 

FN9  CONG. GLOBE, 39TH CONG., 1ST SESS., AT 684 (SENATOR SUMNER). 

FN10  ID., AT 322 (SENATOR TRUMBULL).  THE RECURRENT REFERENCES TO
THE RIGHT "TO GO AND COME AT PLEASURE" AS BEING "AMONG THE NATURAL
RIGHTS OF FREE MEN" REFLECT THE COMMON UNDERSTANDING THAT THE CONCEPTS
OF LIBERTY AND CITIZENSHIP EMBRACED THE RIGHT TO FREEDOM OF MOVEMENT,
THE EFFECTIVE RIGHT TO TRAVEL FREELY.  SEE ID., AT 41-43, 111, 475. 
BLACKSTONE HAD STATED THAT THE "PERSONAL LIBERTY OF INDIVIDUALS"
EMBRACED "THE POWER OF LOCOMOTION, OF CHANGING SITUATION, OR MOVING
ONE'S PERSON TO WHATSOEVER PLACE ONE'S OWN INCLINATION MAY DIRECT,
WITHOUT IMPRISONMENT OR RESTRAINT, UNLESS BY DUE COURSE OF LAW."  1
BLACKSTONE COMMENTARIES (LEWIS ED. 1902), 134.  THIS HERITAGE WAS
CORRECTLY DESCRIBED IN KENT V. DULLES, 357 U.S. 116, 125-127: 

"THE RIGHT TO TRAVEL IS A PART OF THE 'LIBERTY' OF WHICH THE CITIZEN
CANNOT BE DEPRIVED WITHOUT DUE PROCESS OF LAW UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS  ...  .  IN ANGLO-SAXON LAW THAT RIGHT WAS
EMERGING AT LEAST AS EARLY AS THE MAGNA CARTA  ...  .  FREEDOM OF
MOVEMENT ACROSS FRONTIERS IN EITHER DIRECTION, AND INSIDE FRONTIERS AS
WELL, WAS A PART OF OUR HERITAGE.  TRAVEL ABROAD, LIKE TRAVEL WITHIN
THE COUNTRY, MAY BE NECESSARY FOR A LIVELIHOOD.  IT MAY BE AS CLOSE TO
THE HEART OF THE INDIVIDUAL AS THE CHOICE OF WHAT HE EATS, OR WEARS, OR
READS.  FREEDOM OF MOVEMENT IS BASIC IN OUR SCHEME OF VALUES.  SEE
CRANDALL V. NEVADA, 6 WALL.  35, 44; WILLIAMS V. FEARS, 179 U.S. 270,
274; EDWARDS V. CALIFORNIA, 314 U.S. 160."  SEE ALSO APTHEKER V.
SECRETARY OF STATE, POST, P. 500. 

THIS RIGHT TO MOVE FREELY HAS ALWAYS BEEN THOUGHT TO BE AND IS NOW
MORE THAN EVER INEXTRICABLY LINKED WITH THE RIGHT OF THE CITIZEN TO BE
ACCEPTED AND TO BE TREATED EQUALLY IN PLACES OF PUBLIC ACCOMMODATION. 
SEE THE OPINION OF MR. JUSTICE DOUGLAS, ANTE, AT 250-251. 

FN11  CONG. GLOBE, 39TH CONG., 1ST SESS., AT 474 (SENATOR TRUMBULL). 

FN12  ID., AT 111 (SENATOR WILSON).  SEE INFRA, AT NOTE 17. 

FN13  E.G., ID., AT 476, 599, 606, 1117-1118, 1151, 1157, 1159,
1264. 

FN14  FRANK AND MUNRO, SUPRA, NOTE 4, AT 148-149:  "ONE CENTRAL THEME
EMERGES FROM THE TALK OF 'SOCIAL EQUALITY':  THERE ARE TWO KINDS OF
RELATIONS OF MEN, THOSE THAT ARE CONTROLLED BY THE LAW AND THOSE THAT
ARE CONTROLLED BY PURELY PERSONAL CHOICE.  THE FORMER INVOLVES CIVIL
RIGHTS, THE LATTER SOCIAL RIGHTS.  THERE ARE STATEMENTS BY PROPONENTS
OF THE AMENDMENT FROM WHICH A DIFFERENT DEFINITION COULD BE TAKEN, BUT
THIS SEEMS TO BE THE USUAL ONE."  SEE INFRA, AT NOTES 16, 32. 

FN15  CONG. GLOBE, 39TH CONG., 1ST SESS., 936.  SEE ALSO ID., AT 541,
916, APP. 70. 

FN16  THE COURT CONTINUED:  "WITHOUT DOUBTING THAT SOCIAL RIGHTS AND
PRIVILEGES ARE NOT WITHIN THE PROTECTION OF THE LAWS AND CONSTITUTIONAL
PROVISIONS IN QUESTION, WE ARE SATISFIED THAT THE RIGHTS AND PRIVILEGES
WHICH WERE DENIED PLAINTIFF ARE NOT WITHIN THAT CLASS.  SHE WAS REFUSED
ACCOMMODATIONS EQUAL TO THOSE ENJOYED BY WHITE PASSENGERS  ...  .  SHE
WAS UNOBJECTIONABLE IN DEPORTMENT AND CHARACTER ...  .  SHE COMPLAINS
NOT BECAUSE SHE WAS DEPRIVED OF THE SOCIETY OF WHITE PERSONS. 
CERTAINLY NO ONE WILL CLAIM THAT THE PASSENGERS IN THE CABIN OF A
STEAMBOAT ARE THERE IN THE CHARACTER OF MEMBERS OF WHAT IS CALLED
SOCIETY.  THERE COMPANIONSHIP AS TRAVELERS IS NOT ESTEEMED BY ANY CLASS
OF OUR PEOPLE TO CREATE SOCIAL RELATIONS  ...  .  THE PLAINTIFF  ...
CLAIMED NO SOCIAL PRIVILEGE, BUT SUBSTANTIAL PRIVILEGES PERTAINING TO
HER PROPERTY AND THE PROTECTION OF HER PERSON.  IT CANNOT BE DOUBTED
THAT SHE WAS EXCLUDED FROM THE TABLE AND CABIN  ...  BECAUSE OF
PREJUDICE ENTERTAINED AGAINST HER RACE  ...  .  THE OBJECT OF THE
AMENDMENTS OF THE FEDERAL CONSTITUTION AND OF THE STATUTES ABOVE
REFERRED TO, IS TO RELIEVE CITIZENS OF THE BLACK RACE FROM THE EFFECTS
OF THIS PREJUDICE, TO PROTECT THEM IN PERSON AND PROPERTY FROM ITS
SPIRIT.  THE SLAUGHTER HOUSE CASES (16 WALL.  36).  WE ARE DISPOSED TO
CONSTRUE THESE LAWS ACCORDING TO THEIR VERY SPIRIT AND INTENT, SO THAT
EQUAL RIGHTS AND EQUAL PROTECTION SHALL BE SECURED TO ALL REGARDLESS OF
COLOR OR NATIONALITY."  ID., AT 157-158.  SEE ALSO FERGUSON V. GIES, 82
MICH. 358, 46 N.W. 718. 

FN17  THE TREATISE DEFINED AN INNKEEPER AS "THE KEEPER OF A COMMON
INN FOR THE LODGING AND ENTERTAINMENT OF TRAVELLERS AND PASSENGERS  ...
."  STORY, COMMENTARIES ON THE LAW OF BAILMENTS (SCHOULER, 9TH ED.,
1878), SEC. 475.  3 BLACKSTONE, OP. CIT., SUPRA, NOTE 10, AT 166,
STATED A MORE GENERAL RULE: 

"IF AN INN-KEEPER, OR OTHER VICTUALLER, HANGS OUT A SIGN AND OPENS
HIS HOUSE FOR TRAVELERS, IT IS AN IMPLIED ENGAGEMENT TO ENTERTAIN ALL
PERSONS WHO TRAVEL THAT WAY; AND UPON THIS UNIVERSAL ASSUMPSIT AN
ACTION ON THE CASE WILL LIE AGAINST HIM FOR DAMAGES IF HE, WITHOUT GOOD
REASON, REFUSES TO ADMIT A TRAVELER."  IN TIDSWELL, THE INNKEEPER'S
LEGAL GUIDE (1864), P. 22, A "VICTUALLING HOUSE" IS DEFINED AS A PLACE
"WHERE PEOPLE ARE PROVIDED WITH FOOD AND LIQUORS, BUT NOT WITH
LODGINGS," AND IN 3 STROUD, JUDICIAL DICTIONARY (1903), AS "A HOUSE
WHERE PERSONS ARE PROVIDED WITH VICTUALS, BUT WITHOUT LODGING." 

REGARDLESS, HOWEVER, OF THE PRECISE CONTENT OF STATE COMMON-LAW RULES
AND THE LEGAL STATUS OF RESTAURANTS AT THE TIME OF THE ADOPTION OF THE
FOURTEENTH AMENDMENT, THE SPIRIT OF THE COMMON LAW WAS BOTH FAMILIAR
AND APPARENT.  IN 1701 IN LANE V. COTTON, 12 MOD. 472, 484-485, HOLT,
C.J., HAD DECLARED: 

"WHEREVER ANY SUBJECT TAKES UPON HIMSELF A PUBLIC TRUST FOR THE
BENEFIT OF THE REST OF HIS FELLOW-SUBJECTS, HE IS EO IPSO BOUND TO
SERVE THE SUBJECT IN ALL THE THINGS THAT ARE WITHIN THE REACH AND
COMPREHENSION OF SUCH AN OFFICE, UNDER PAIN OF AN ACTION AGAINST HIM
...  .  IF ON THE ROAD A SHOE FALL OFF MY HORSE, AND I COME TO A SMITH
TO HAVE ONE PUT ON, AND THE SMITH REFUSE TO DO IT, AN ACTION WILL LIE
AGAINST HIM, BECAUSE HE HAS MADE PROFESSION OF A TRADE WHICH IS FOR THE
PUBLIC GOOD, AND HAS THEREBY EXPOSED AND VESTED AN INTEREST OF HIMSELF
IN ALL THE KING'S SUBJECTS THAT WILL EMPLOY HIM IN THE WAY OF HIS
TRADE.  IF AN INNKEEPER REFUSE TO ENTERTAIN A GUEST WHERE HIS HOUSE IS
NOT FULL, AN ACTION WILL LIE AGAINST HIM, AND SO AGAINST A CARRIER, IF
HIS HORSES BE NOT LOADED, AND HE REFUSE TO TAKE A PACKET PROPER TO BE
SENT BY A CARRIER  ...  .  IF THE INN BE FULL, OR THE CARRIER'S HORSES
LADEN, THE ACTION WOULD NOT LIE FOR SUCH REFUSAL; BUT ONE THAT HAS MADE
PROFESSION OF A PUBLIC EMPLOYMENT, IS BOUND TO THE UTMOST EXTENT OF
THAT EMPLOYMENT TO SERVE THE PUBLIC." 

SEE MUNN V. ILLINOIS, 94 U.S. 113, 126-130 (REFERRING TO THE DUTIES
TRADITIONALLY IMPOSED ON ONE WHO PURSUES A PUBLIC EMPLOYMENT AND
EXERCISES "A SORT OF PUBLIC OFFICE"). 

FURTHERMORE, IT SHOULD BE POINTED OUT THAT THE FRAMERS OF THE
FOURTEENTH AMENDMENT, AND THE MEN WHO DEBATED THE CIVIL RIGHTS ACTS OF
1866 AND 1875, WERE NOT THINKING ONLY IN TERMS OF EXISTING COMMON-LAW
DUTIES BUT WERE THINKING MORE GENERALLY OF THE CUSTOMARY EXPECTATIONS
OF WHITE CITIZENS WITH RESPECT TO PLACES WHICH WERE CONSIDERED PUBLIC
AND WHICH WERE IN VARIOUS WAYS REGULATED BY LAWS.  SEE INFRA, AT 298
305.  FINALLY, AS THE COURT ACKNOWLEDGED IN STRAUDER V. WEST VIRGINIA,
100 U.S. 303, 310, THE "FOURTEENTH AMENDMENT MAKES NO ATTEMPT TO
ENUMERATE THE RIGHTS IT DESIGNED TO PROTECT," FOR THOSE WHO ADOPTED IT
WERE CONSCIOUS THAT A CONSTITUTIONAL "PRINCIPLE TO BE VITAL MUST BE
CAPABLE OF WIDER APPLICATION THAN THE MISCHIEF WHICH GAVE IT BIRTH." 
WEEMS V. UNITED STATES, 217 U.S. 349, 373.  SEE INFRA, AT 315. 

FN18  SIMILARLY, IN 1874, SENATOR PRATT SAID: 

"NO ONE READING THE CONSTITUTION CAN DENY THAT EVERY COLORED MAN IS A
CITIZEN, AND AS SUCH, SO FAR AS LEGISLATION MAY GO, ENTITLED TO EQUAL
RIGHTS AND PRIVILEGES WITH WHITE PEOPLE.  CAN IT BE DOUBTED THAT FOR A
DENIAL OF ANY OF THE PRIVILEGES OR ACCOMMODATIONS ENUMERATED IN THE
BILL (PROPOSED SUPPLEMENT TO THE CIVIL RIGHTS ACT OF 1866) HE COULD
MAINTAIN A SUIT AT COMMON LAW AGAINST THE INN-KEEPER, THE PUBLIC
CARRIER, OR PROPRIETOR OR LESSEE OF THE THEATER WHO WITHHELD THEM? 
SUPPOSE A COLORED MAN PRESENTS HIMSELF AT A PUBLIC INN, KEPT FOR THE
ACCOMMODATION OF THE PUBLIC, IS DECENTLY CLAD AND BEHAVES HIMSELF WELL
AND IS READY TO PAY THE CUSTOMARY CHARGES FOR REST AND REFRESHMENT, AND
IS EITHER REFUSED ADMITTANCE OR TREATED AS AN INFERIOR GUEST - PLACED
AT THE SECOND TABLE AND CONSIGNED TO THE GARRET, OR COMPELLED TO MAKE
HIS COUCH UPON THE FLOOR - DOES ANY ONE DOUBT THAT UPON AN APPEAL TO
THE COURTS, THE LAW IF JUSTLY ADMINISTERED WOULD PRONOUNCE THE INN
KEEPER RESPONSIBLE TO HIM IN DAMAGES FOR THE UNJUST DISCRIMINATION?  I
SUPPOSE NOT.  PREJUDICE IN THE JURY-BOX MIGHT DENY HIM SUBSTANTIAL
DAMAGES; BUT ABOUT THE LAW IN THE MATTER THERE CAN BE NO TWO OPINIONS. 
THE SAME IS TRUE OF PUBLIC CARRIERS ON LAND OR WATER.  THEIR ENGAGEMENT
WITH THE PUBLIC IS TO CARRY ALL PERSONS WHO SEEK CONVEYANCE ON THEIR
CARS OR BOATS TO THE EXTENT OF THEIR FACILITIES FOR CERTAIN ESTABLISHED
FARES, AND ALL PERSONS WHO BEHAVE THEMSELVES AND ARE NOT AFFLICTED WITH
ANY CONTAGIOUS DISEASE ARE ENTITLED TO EQUAL ACCOMMODATIONS WHERE THEY
PAY EQUAL FARES. 

"BUT IT IS ASKED, IF THE LAW BE AS YOU LAY IT DOWN, WHERE THE
NECESSITY FOR THIS LEGISLATION, SINCE THE COURTS ARE OPEN TO ALL?  MY
ANSWER IS, THAT THE REMEDY IS INADEQUATE AND TOO EXPENSIVE, AND
INVOLVES TOO MUCH LOSS OF TIME AND PATIENCE TO PURSUE IT.  WHEN A MAN
IS TRAVELING, AND FAR FROM HOME, IT DOES NOT PAY TO SUE EVERY INNKEEPER
WHO, OR RAILROAD COMPANY WHICH, INSULTS HIM BY UNJUST DISCRIMINATION. 
PRACTICALLY THE REMEDY IS WORTHLESS."  2 CONG. REC. 4081-4082. 

FN19  THE STATUTE SPECIFICALLY REFERRED TO "THE FULL AND EQUAL
ACCOMMODATIONS, ADVANTAGES, FACILITIES, AND PRIVILEGES OF INNS,
RESTAURANTS, EATING-HOUSES, BARBER-SHOPS, PUBLIC CONVEYANCES ON LAND
AND WATER, THEATERS, AND ALL OTHER PLACES OF PUBLIC ACCOMMODATION AND
AMUSEMENT, SUBJECT ONLY TO THE CONDITIONS AND LIMITATIONS ESTABLISHED
BY LAW, AND APPLICABLE ALIKE TO ALL CITIZENS."  82 MICH. 358, 364, 46
N.W. 718, 720.    FN20  THE COURT ALSO EMPHASIZED THAT THE RIGHT UNDER
CONSIDERATION WAS CLEARLY A "CIVIL" AS DISTINGUISHED FROM A "SOCIAL"
RIGHT.  SEE 82 MICH., AT 363, 367-368, 46 N.W., AT 720-721; SEE ALSO
SUPRA, AT NOTES 13-14, 16 AND INFRA, AT NOTE 32. 

FN21 AFTER THE CIVIL WAR, SOUTHERN STATES ENACTED THE SO-CALLED
"BLACK CODES" IMPOSING DISABILITIES REDUCING THE EMANCIPATED NEGROES TO
THE STATUS OF "SLAVES OF SOCIETY," EVEN THOUGH THEY WERE NO LONGER THE
CHATTELS OF INDIVIDUAL MASTERS.  SEE CONG. GLOBE, 39TH CONG., 1ST
SESS., 39, 516-517; OPINION OF MR. JUSTICE DOUGLAS, ANTE, AT 247, N.
3.  FOR THE SUBSTANCE OF THESE CODES, SEE 1 FLEMING, DOCUMENTARY
HISTORY OF RECONSTRUCTION (1906), 273-312; MCPHERSON, THE POLITICAL
HISTORY OF THE UNITED STATES DURING THE PERIOD OF RECONSTRUCTION
(1871), 29-44. 

FN22  SEE LEWIS, SUPRA, NOTE 5, AT 146:  "IT WAS ASSUMED BY MORE THAN
A FEW MEMBERS OF CONGRESS THAT THEATERS AND PLACES OF AMUSEMENT WOULD
BE OR COULD BE OPENED TO ALL AS A RESULT EITHER OF THE EQUAL PROTECTION
CLAUSE OR THE PRIVILEGES AND IMMUNITIES CLAUSE.  WHY WOULD THE FRAMERS
BELIEVE THIS?  SOME MENTIONED THE LAW'S REGULATION OF SUCH ENTERPRISES,
BUT THIS IS NOT ENOUGH.  SOME OTHER STANDARD MUST DELINEATE BETWEEN THE
REGULATED WHO MUST OFFER EQUAL TREATMENT AND THOSE WHO NEED NOT. 
WHITES DID NOT HAVE A LEGAL RIGHT TO DEMAND ADMITTANCE TO SUCH
ENTERPRISES, BUT THEY WERE ADMITTED.   PERHAPS THIS OBSERVED CONDUCT
WAS CONFUSED WITH REQUIRED CONDUCT, JUST AS THE OBSERVED STATUS OF THE
CITIZENS OF ALL FREE GOVERNMENTS - THE GOVERNMENTS THAT WASHINGTON, J.,
COULD OBSERVE - WAS MISTAKEN FOR INHERENT RIGHTS TO THE STATUS.  THE
IMPORTANT POINT IS THAT THE FRAMERS, OR SOME OF THEM, BELIEVED THE
AMENDMENT WOULD OPEN PLACES OF PUBLIC ACCOMMODATION, AND STUDY OF THE
DEBATES REVEALS THIS BELIEF TO BE THE OBSERVED EXPECTATIONS OF THE
MAJORITY, TANTAMOUNT IN PRACTICE TO LEGAL RIGHTS  ...  ." 

FN23  E.G., THE SUPPLEMENTARY FREEDMEN'S BUREAU ACT, CONG. GLOBE,
39TH CONG., 1ST SESS., 318; THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27;
THE ENFORCEMENT ACT OF 1870, 16 STAT. 140; THE CIVIL RIGHTS ACT OF
APRIL 20, 1871, 17 STAT. 13; 42 U.S.C. SEC. 1983.  SEE ALSO THE
LANGUAGE OF THE CIVIL RIGHTS CASES, 109 U.S. 3, 17 (QUOTED INFRA, AT
NOTE 25). 

FN24  OF THE FIVE CASES INVOLVED IN THE CIVIL RIGHTS CASES, TWO
CONCERNED THEATRES, TWO CONCERNED INNS OR HOTELS AND ONE CONCERNED A
COMMON CARRIER.  IN UNITED STATES V. NICHOLS (INVOLVING A MISSOURI INN
OR HOTEL) THE SOLICITOR GENERAL SAID:  "I PREMISE THAT UPON THE SUBJECT
OF INNS THE COMMON LAW IS IN FORCE IN MISSOURI  ...  ."  BRIEF FOR THE
UNITED STATES, NOS. 1, 2, 4, 460, OCTOBER TERM, 1882, P. 8.  IN UNITED
STATES V. RYAN (A CALIFORNIA THEATRE) AND IN UNITED STATES V. STANLEY
(A KANSAS INN OR HOTEL), IT SEEMS THAT COMMON-LAW DUTIES APPLIED AS
WELL AS STATE ANTIDISCRIMINATION LAWS.  CALIF. LAWS 1897, P. 137; KAN.
LAWS 1874, P. 82.  IN UNITED STATES V. SINGLETON (NEW YORK OPERA HOUSE)
A STATE STATUTE BARRED RACIAL DISCRIMINATION BY "THEATERS, OR OTHER
PLACES OF AMUSEMENT."  N.Y. LAWS 1873, P. 303; LAWS 1881, P. 541.  IN
ROBINSON V. MEMPHIS (A TENNESSEE RAILROAD PARLOR CAR), THE LEGAL DUTIES
WERE LESS CLEAR.  THE EVENTS OCCURRED IN 1879 AND THE TRIAL WAS HELD IN
1880.  THE COMMON-LAW DUTY OF CARRIERS HAD EXISTED IN TENNESSEE AND,
FROM WHAT APPEARS IN THE RECORD, WAS ASSUMED BY THE TRIAL JUDGE, IN
CHARGING THE JURY, TO EXIST AT THE TIME OF TRIAL.  HOWEVER, IN 1875
TENNESSEE HAD REPEALED THE COMMON-LAW RULE, LAWS 1875, P. 216, AND IN
1881 THE STATE AMENDED THE LAW TO REQUIRE A CARRIER TO FURNISH SEPARATE
BUT EQUAL FIRST-CLASS ACCOMMODATIONS, LAWS 1881, P. 211. 

FN25  REASONING FROM THIS SAME BASIC ASSUMPTION, THE COURT SAID THAT
CONGRESS LACKED THE POWER TO ENACT SUCH LEGISLATION:  "UNTIL SOME STATE
LAW HAS BEEN PASSED, OR SOME STATE ACTION THROUGH ITS OFFICERS OR
AGENTS HAS BEEN TAKEN, ADVERSE TO THE RIGHTS OF CITIZENS SOUGHT TO BE
PROTECTED BY THE FOURTEENTH AMENDMENT, NO LEGISLATION OF THE UNITED
STATES UNDER SAID AMENDMENT, NOR ANY PROCEEDING UNDER SUCH LEGISLATION,
CAN BE CALLED INTO ACTIVITY:  FOR THE PROHIBITIONS OF THE AMENDMENT ARE
AGAINST STATE LAWS AND ACTS DONE UNDER STATE AUTHORITY."  109 U.S., AT
13.  AND AGAIN:  "IT IS PROPER TO STATE THAT CIVIL RIGHTS, SUCH AS ARE
GUARANTEED BY THE CONSTITUTION AGAINST STATE AGGRESSION, CANNOT BE
IMPAIRED BY THE WRONGFUL ACTS OF INDIDIVUALS, UNSUPPORTED BY STATE
AUTHORITY IN THE SHAPE OF LAWS, CUSTOMS, OR JUDICIAL OR EXECUTIVE
PROCEEDINGS.  THE WRONGFUL ACT OF AN INDIVIDUAL, UNSUPPORTED BY ANY
SUCH AUTHORITY, IS SIMPLY A PRIVATE WRONG, OR A CRIME OF THAT
INDIVIDUAL; AN INVASION OF THE RIGHTS OF THE INJURED PARTY, IT IS TRUE
...  ; BUT IF NOT SANCTIONED IN SOME WAY BY THE STATE  ...  HIS RIGHTS
REMAIN IN FULL FORCE, AND MAY PRESUMABLY BE VINDICATED BY RESORT TO THE
LAWS OF THE STATE FOR REDRESS."  ID., AT 17. 

THE ARGUMENT OF THE ATTORNEY GENERAL OF MISSISSIPPI IN DONNELL V.
STATE, 48 MISS.  661, EXPLICITLY RELATED THE STATE'S NEW PUBLIC
ACCOMMODATIONS LAW TO THE THIRTEENTH AND FOURTEENTH AMENDMENTS.  HE
STATED THAT THE AMENDMENTS CONFERRED A NATIONAL "POWER TO ENFORCE, 'BY
APPROPRIATE LEGISLATION,' THESE RIGHTS, PRIVILEGES AND IMMUNITIES OF
CITIZENSHIP UPON THE NEWLY ENFRANCHISED CLASS  ...  "; HE THEN
CONCLUDED THAT "THE LEGISLATURE OF THIS STATE HAS SOUGHT, BY THIS
ANTIDISCRIMINATION ACT, TO RENDER ANY INTERFERENCE BY CONGRESS
UNNECESSARY."  ID., AT 668.  THIS VIEW SEEMS TO ACCORD WITH THE
ASSUMPTION UNDERLYING THE CIVIL RIGHTS CASES. 

FN26  WOODWARD, THE STRANGE CAREER OF JIM CROW (1955), 15-26, POINTS
OUT THAT SEGREGATION IN ITS MODERN AND PERVASIVE FORM IS A RELATIVELY
RECENT PHENOMENON.  ALTHOUGH THE SPEED OF THE MOVEMENT VARIED, IT WAS
NOT UNTIL 1904, FOR EXAMPLE, THAT MARYLAND, THE RESPONDENT IN THIS
CASE, EXTENDED JIM CROW LEGISLATION TO RAILROAD COACHES AND OTHER
COMMON CARRIERS.  MD. LAWS 1904, C. 110, P. 188; MD. LAWS 1908, C. 248,
P. 88.  IN THE 1870'S NEGROES IN BALTIMORE, MARYLAND, SUCCESSFULLY
CHALLENGED ATTEMPTS TO SEGREGATE TRANSIT FACILITIES.  SEE FIELDS V.
BALTIMORE CITY PASSENGER R. CO., REPORTED IN BALTIMORE AMERICAN, NO.
14, 1871, P. 4, COL. 3; BALTIMORE SUN, NOV. 13, 1871, P. 4, COL. 2. 

FN27  NOT UNTIL 1887 DID FLORIDA, THE APPELLEE IN ROBINSON V.
FLORIDA, ANTE, AT 153, ENACT A STATUTE REQUIRING SEPARATE RAILROAD
PASSENGER FACILITIES FOR THE TWO RACES.  FLA.  LAWS 1887, C. 3743, P.
116.  THE STATE, IN FOLLOWING A PATTERN THAT WAS NOT UNIQUE, HAD NOT
IMMEDIATELY REPEALED ITS RECONSTRUCTION ANTIDISCRIMINATION STATUTE. 
FLA. DIGEST 1881, C. 19, PP. 171-172; SEE FLA. LAWS 1891, C. 4055, P.
92; FLA. REV. STAT. 1892, P. VIII. 

FN28  THIS COURT HAS FREQUENTLY HELD THAT RIGHTS AND LIBERTIES
PROTECTED BY THE FOURTEENTH AMENDMENT PREVAIL OVER STATE COMMON-LAW, AS
WELL AS STATUTORY, RULES.  "THE FACT THAT A STATE'S POLICY IS EXPRESSED
BY THE JUDICIAL ORGAN  ...  RATHER THAN BY THE LEGISLATURE WE HAVE
REPEATEDLY RULED TO BE IMMATERIAL  ...  .  'RIGHTS UNDER THE FOURTEENTH
AMENDMENT TURN ON THE POWER OF THE STATE, NO MATTER BY WHAT ORGAN IT
ACTS.'  MISSOURI V. DOCKERY, 191 U.S. 165, 170-71."  HUGHES V. SUPERIOR
COURT, 339 U.S. 460, 466-467.  SEE ALSO EX PARTE VIRGINIA, 100 U.S.
339, 346-347; AMERICAN FEDERATION OF LABOR V. SWING, 312 U.S. 321; NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 265. 

FN29  LETTER FROM JUSTICE BRADLEY TO CIRCUIT JUDGE (LATER JUSTICE)
WILLIAM B. WOODS (UNPUBLISHED DRAFT), MAR. 12, 1871, IN THE BRADLEY
PAPERS ON FILE, THE NEW JERSEY HISTORICAL SOCIETY, NEWARK, NEW JERSEY;
SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE, NOS. 6, 9,
10, 12 AND 60, OCTOBER TERM, 1963, PP. 75-76.  FOR A CONVENIENT SOURCE
OF EXCERPTS, SEE ROCHE, CIVIL LIBERTY IN THE AGE OF ENTERPRISE, 31 U.
OF CHI.  L. REV. 103, 108-110 (1963).  SEE NOTES 30-31, INFRA. 

FN30  A COMPARISON OF THE 1871 BRADLEY-WOODS CORRESPONDENCE (AND THE
OPINION THAT JUDGE WOODS LATER WROTE, SEE NOTE 31, INFRA) WITH JUSTICE
BRADLEY'S 1883 OPINION IN THE CIVIL RIGHTS CASES INDICATES THAT IN SOME
RESPECTS THE JUSTICE MODIFIED HIS VIEWS.  ATTACHED TO A DRAFT OF A
LETTER TO JUDGE WOODS WAS A NOTE, APPARENTLY WRITTEN SUBSEQUENTLY, BY
JUSTICE BRADLEY STATING THAT:  "THE VIEWS EXPRESSED IN THE FOREGOING
LETTERS WERE MUCH MODIFIED BY SUBSEQUENT REFLECTION, SO FAR AS RELATES
TO THE POWER OF CONGRESS TO PASS LAWS FOR ENFORCING SOCIAL EQUALITY
BETWEEN THE RACES."  THE CAREFUL WORDING OF THIS NOTE, LIMITING ITSELF
TO "THE POWER OF CONGRESS TO PASS LAWS," SUPPORTS THE CONCLUSION THAT
JUSTICE BRADLEY HAD ONLY MODIFIED, NOT ABANDONED, HIS FUNDAMENTAL VIEWS
AND THAT THE CIVIL RIGHTS CASES SHOULD BE READ, AS THEY WERE WRITTEN,
TO REST ON AN EXPLICIT ASSUMPTION AS TO THE LEGAL RIGHTS WHICH THE
STATES WERE AFFIRMATIVELY PROTECTING. 

FN31  THE BACKGROUND OF THIS CORRESPONDENCE AND THE SUBSEQUENT
OPINION OF JUDGE WOODS IN UNITED STATES V. HALL, 26 FED. CAS. 79 (CAS.
NO. 15,282), ARE SIGNIFICANT.  THE CORRESPONDENCE ON THE SUBJECT
APPARENTLY BEGAN IN DECEMBER 1870 WHEN JUDGE WOODS WROTE JUSTICE
BRADLEY CONCERNING THE CONSTITUTIONAL QUESTIONS RAISED BY AN INDICTMENT
FILED BY THE UNITED STATES UNDER THE ENFORCEMENT ACT OF 1870, 16 STAT.
140.  THE INDICTMENT CHARGED THAT THE DEFENDANTS "DID UNLAWFULLY AND
FELONIOUSLY BAND AND CONSPIRE TOGETHER, WITH INTENT TO INJURE, OPPRESS,
THREATEN AND INTIMIDATE" CERTAIN CITIZENS IN THEIR EXERCISE OF THEIR
"RIGHT OF FREEDOM OF SPEECH" AND IN "THEIR FREE EXERCISE AND ENJOYMENT
OF THE RIGHT AND PRIVILEGE TO PEACEABLY ASSEMBLE."  THE PROSECUTION WAS
INSTITUTED IN A FEDERAL COURT IN ALABAMA AGAINST PRIVATE INDIVIDUALS
WHOSE CONDUCT HAD IN NO WAY INVOLVED OR BEEN SANCTIONED BY STATE
ACTION. 

IN MAY OF 1871, AFTER CORRESPONDING WITH JUSTICE BRADLEY, JUDGE WOODS
DELIVERED AN OPINION UPHOLDING THE FEDERAL STATUTE AND THE INDICTMENT. 
THE JUDGE DECLARED THAT THE RIGHTS ALLEGEDLY INFRINGED WERE PROTECTED
UNDER THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT:
"WE THINK  ...  THAT THE RIGHT OF FREEDOM OF SPEECH, AND THE OTHER
RIGHTS ENUMERATED IN THE FIRST EIGHT ARTICLES OF AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES, ARE THE PRIVILEGES AND IMMUNITIES OF
CITIZENS OF THE UNITED STATES, THAT THEY ARE SECURED BY THE
CONSTITUTION  ...  ."  26 FED. CAS., AT 82.  THIS POSITION IS SIMILAR
TO THAT OF JUSTICE BRADLEY TWO YEARS LATER DISSENTING IN THE SLAUGHTER
HOUSE CASES, 16 WALL.  36, 111, 118-119.  MORE IMPORTANT FOR PRESENT
PURPOSES, HOWEVER, IS THE FACT THAT IN ANALYZING THE PROBLEM OF
"PRIVATE" (NONSTATE) ACTION, JUDGE WOODS' REASONING AND LANGUAGE FOLLOW
THAT OF JUSTICE BRADLEY'S LETTERS.  THE JUDGE CONCLUDED THAT UNDER THE
FOURTEENTH AMENDMENT CONGRESS COULD ADOPT LEGISLATION:  "TO PROTECT THE
FUNDAMENTAL RIGHTS OF CITIZENS OF THE UNITED STATES AGAINST UNFRIENDLY
OR INSUFFICIENT STATE LEGISLATION, FOR THE FOURTEENTH AMENDMENT NOT
ONLY PROHIBITS THE MAKING OR ENFORCING OF LAWS WHICH SHALL ABRIDGE THE
PRIVILEGES OF THE CITIZEN, BUT PROHIBITS THE STATES FROM DENYING TO ALL
PERSONS WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS. 
DENYING INCLUDES INACTION AS WELL AS ACTION, AND DENYING THE EQUAL
PROTECTION OF THE LAWS INCLUDES THE OMMISSION TO PROTECT, AS WELL AS
THE OMMISSION TO PASS LAWS FOR PROTECTION."  26 FED. CAS., AT 81. 

FN32  THE APPROACH IS REFLECTED IN THE REASONING STATED BY THE
SUPREME COURT OF MICHIGAN IN 1890: 

"SOCIALLY PEOPLE MAY DO AS THEY PLEASE WITHIN THE LAW, AND WHITES MAY
ASSOCIATE TOGETHER, AS MAY BLACKS, AND EXCLUDE WHOM THEY PLEASE FROM
THEIR DWELLINGS AND PRIVATE GROUNDS; BUT THERE CAN BE NO SEPARATION IN
PUBLIC PLACES BETWEEN PEOPLE ON ACCOUNT OF THEIR COLOR ALONE WHICH THE
LAW WILL SANCTION. 

     *         *         *         *         * 

"THE MAN WHO GOES EITHER BY HIMSELF OR WITH HIS FAMILY TO A PUBLIC
PLACE MUST EXPECT TO MEET AND MINGLE WITH ALL CLASSES OF PEOPLE.  HE
CANNOT ASK, TO SUIT HIS CAPRICE OR PREJUDICE OR SOCIAL VIEWS, THAT THIS
OR THAT MAN SHALL BE EXCLUDED BECAUSE HE DOES NOT WISH TO ASSOCIATE
WITH THEM.  HE MAY DRAW HIS SOCIAL LINE AS CLOSELY AS HE CHOOSES AT
HOME, OR IN OTHER PRIVATE PLACES, BUT HE CANNOT IN A PUBLIC PLACE CARRY
THE PRIVACY OF HIS HOME WITH HIM, OR ASK THAT PEOPLE NOT AS GOOD OR
GREAT AS HE IS SHALL STEP ASIDE WHEN HE APPEARS."  FERGUSON V. GIES, 82
MICH., AT 363, 367-368, 46 N.W., AT 720, 721.  SEE SUPRA, AT NOTES 13
14. 

FN33  CF. MUNN V. ILLINOIS, 94 U.S. 113, 125-126:  "LOOKING, THEN, TO
THE COMMON LAW, FROM WHENCE CAME THE PROPERTY RIGHT WHICH THE
CONSTITUTION PROTECTS, WE FIND THAT WHEN PRIVATE PROPERTY IS 'AFFECTED
WITH A PUBLIC INTEREST, IT CEASES TO BE JURIS PRIVATI ONLY.'  THIS WAS
SAID BY LORD CHIEF JUSTICE HALE MORE THAN TWO HUNDRED YEARS AGO, IN HIS
TREATISE DE PORTIBUS MARIS, 1 HARG.  LAW TRACTS, 78, AND HAS BEEN
ACCEPTED WITHOUT OBJECTION AS AN ESSENTIAL ELEMENT IN THE LAW OF
PROPERTY EVER SINCE.  PROPERTY DOES BECOME CLOTHED WITH A PUBLIC
INTEREST WHEN USED IN A MANNER TO MAKE IT OF PUBLIC CONSEQUENCE, AND
AFFECT THE COMMUNITY AT LARGE." 

FN34  SEE LEWIS, SUPRA, NOTE 5, AT 148. 

FN35  SEE SUPRA, AT NOTE 17. 

FN36  SEE BICKEL, THE ORIGINAL UNDERSTANDING AND THE SEGREGATION
DECISION, 69 HARV.  L. REV. 1 (1955). 

FN37  2 DE TOCQUEVILLE, DEMOCRACY IN AMERICA (BRADLEY ED. 1948),
101. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

THIS CASE DOES NOT INVOLVE THE CONSTITUTIONALITY OF ANY EXISTING OR
PROPOSED STATE OR FEDERAL LEGISLATION REQUIRING RESTAURANT OWNERS TO
SERVE PEOPLE WITHOUT REGARD TO COLOR.  THE CRUCIAL ISSUE WHICH THE CASE
DOES PRESENT BUT WHICH THE COURT DOES NOT DECIDE IS WHETHER THE
FOURTEENTH AMENDMENT, OF ITSELF, FORBIDS A STATE TO ENFORCE ITS
TRESPASS LAWS TO CONVICT A PERSON WHO COMES INTO A PRIVATELY OWNED
RESTAURANT, IS TOLD THAT BECAUSE OF HIS COLOR HE WILL NOT BE SERVED,
AND OVER THE OWNER'S PROTEST REFUSES TO LEAVE.  WE DISSENT FROM THE
COURT'S REFUSAL TO DECIDE THAT QUESTION.  FOR REASONS STATED, WE THINK
THAT THE QUESTION SHOULD BE DECIDED AND THAT THE FOURTEENTH AMENDMENT
DOES NOT FORBID THIS APPLICATION OF A STATE'S TRESPASS LAWS.    THE
PETITIONERS WERE CONVICTED IN A MARYLAND STATE COURT ON A CHARGE THAT
THEY "UNLAWFULLY DID ENTER UPON AND CROSS OVER THE LAND, PREMISES AND
PRIVATE PROPERTY" OF THE HOOPER FOOD CO., INC., "AFTER HAVING BEEN DULY
NOTIFIED BY ALBERT WARFEL, WHO WAS THEN AND THERE THE SERVANT AND AGENT
FOR HOOPER FOOD CO.," NOT TO DO SO, IN VIOLATION OF MARYLAND'S CRIMINAL
TRESPASS STATUTE.  (FN1)  THE CONVICTION WAS BASED ON A RECORD SHOWING
IN SUMMARY THAT:    A GROUP OF FIFTEEN TO TWENTY NEGRO STUDENTS,
INCLUDING PETITIONERS, WENT TO HOOPER'S RESTAURANT TO ENGAGE IN WHAT
THEIR COUNSEL DESCRIBES AS A "SIT-IN PROTEST" BECAUSE THE RESTAURANT
WOULD NOT SERVE NEGROES.  THE HOSTESS, ON ORDERS OF MR. HOOPER, THE
PRESIDENT OF THE CORPORATION OWNING THE RESTAURANT, (FN2) TOLD THEM,
"SOLELY ON THE BASIS OF THEIR COLOR," THAT SHE WOULD NOT SERVE THEM. 
PETITIONERS REFUSED TO LEAVE WHEN REQUESTED BY THE HOSTESS AND THE
MANAGER; INSTEAD THEY WENT TO TABLES, TOOK SEATS, AND REFUSED TO LEAVE,
INSISTING THAT THEY BE SERVED.  ON ORDERS OF THE OWNER THE POLICE WERE
CALLED, BUT THEY ADVISED THE MANAGER THAT A WARRANT WOULD BE NECESSARY
BEFORE THEY COULD ARREST PETITIONERS.  THE MANAGER THEN WENT TO THE
POLICE STATION AND SWORE OUT THE WARRANTS.  PETITIONERS HAD REMAINED IN
THE RESTAURANT IN ALL AN HOUR AND A HALF, TESTIFYING AT THEIR TRIAL
THAT THEY HAD STAYED KNOWING THEY WOUL BE ARRESTED - THAT BEING
ARRESTED WAS PART OF THEIR "TECHNIQUE" IN THESE DEMONSTRATIONS. 

THE MARYLAND COURT OF APPEALS AFFIRMED THE CONVICTIONS, REJECTING
PETITIONERS' CONTENTIONS URGED IN BOTH COURTS THAT MARYLAND HAD (1)
DENIED THEM EQUAL PROTECTION AND DUE PROCESS UNDER THE FOURTEENTH
AMENDMENT BY APPLYING ITS TRESPASS STATUTE TO ENFORCE THE RESTAURANT
OWNER'S POLICY AND PRACTICE OF RACIAL DISCRIMINATION, AND (2) DENIED
THEM FREEDOM OF EXPRESSION GUARANTEED BY THE CONSTITUTION BY PUNISHING
THEM FOR REMAINING AT THE RESTAURANT, WHICH THEY WERE DOING AS A
PROTEST AGAINST THE OWNER'S PRACTICE OF REFUSING SERVICE TO NEGROES. 
(FN3)  THIS CASE, BARR V. CITY OF COLUMBIA, ANTE, P. 146, AND BOUIE V.
CITY OF COLUMBIA, POST, P. 347, ALL RAISED THESE SAME TWO
CONSTITUTIONAL QUESTIONS, WHICH WE GRANTED CERTIORARI TO DECIDE.  (FN4)
THE SOLICITOR GENERAL HAS FILED AMICUS BRIEFS AND PARTICIPATED IN ORAL
ARGUMENT IN THESE CASES; WHILE HE JOINS IN ASKING REVERSAL OF ALL THE
CONVICTIONS, HIS ARGUMENTS VARY IN SIGNIFICANT RESPECTS FROM THOSE OF
THE PETITIONERS.  WE WOULD REJECT THE CONTENTIONS OF THE PETITIONERS
AND OF THE SOLICITOR GENERAL IN THIS CASE AND AFFIRM THE JUDGMENT OF
THE MARYLAND COURT. 

                                       I. 

ON THE SAME DAY THAT PETITIONERS FILED THE PETITION FOR CERTIORARI IN
THIS CASE, BALTIMORE ENACTED AN ORDINANCE FORBIDDING PRIVATELY OWNED
RESTAURANTS TO REFUSE TO SERVE NEGROES BECAUSE OF THEIR COLOR.  (FN5)
NEARLY A YEAR LATER MARYLAND, WITHOUT REPEALING THE STATE TRESPASS LAW
PETITIONERS VIOLATED, PASSED A LAW APPLICABLE TO BALTIMORE AND SOME
OTHER LOCALITIES MAKING SUCH DISCRIMINATION BY RESTAURANT OWNERS
UNLAWFUL.  (FN6)  WE AGREE THAT THE GENERAL JUDICIAL RULE OR PRACTICE
IN MARYLAND AND ELSEWHERE, AS POINTED OUT IN THE COURT'S OPINION, IS
THAT A NEW STATUTE REPEALING AN OLD CRIMINAL LAW WILL, IN THE ABSENCE
OF A GENERAL OR SPECIAL SAVING CLAUSE, BE INTERPRETED AS BARRING
PENDING PROSECUTIONS UNDER THE OLD LAW.  ALTHOUGH MARYLAND LONG HAS HAD
A GENERAL SAVING CLAUSE CLEARLY DECLARING THAT PROSECUTIONS BROUGHT
UNDER A SUBSEQUENTLY REPEALED STATUTE SHALL NOT BE BARRED, THE COURT
ADVANCES MANY ARGUMENTS WHY THE MARYLAND COURT OF APPEALS COULD AND
PERHAPS WOULD, SO THE COURT SAYS, HOLD THAT THE NEW ORDINANCE AND
STATUTE NEVERTHELESS BAR THESE PROSECUTIONS.  ON THE PREMISE THAT THE
MARYLAND COURT MIGHT HOLD THIS WAY AND BECAUSE WE COULD THEREBY AVOID
PASSING UPON THE CONSTITUTIONALITY OF THE STATE'S TRESPASS LAWS, THE
COURT, WITHOUT DECIDING THE CRUCIAL CONSTITUTIONAL QUESTIONS WHICH
BROUGHT THIS CASE HERE, INSTEAD SENDS THE CASE BACK TO THE STATE COURT
TO CONSIDER THE EFFECT OF THE NEW ORDINANCE AND STATUTE. 

WE AGREE THAT THIS COURT HAS POWER, WITH OR WITHOUT DECIDING THE
CONSTITUTIONAL QUESTIONS, TO REMAND THE CASE FOR THE MARYLAND COURT OF
APPEALS TO DECIDE THE STATE QUESTION AS TO WHETHER THE CONVICTIONS
SHOULD BE SET ASIDE AND THE PROSECUTIONS ABATED BECAUSE OF THE NEW
LAWS.  BUT AS THE CASES CITED BY THE COURT RECOGNIZE, OUR QUESTION IS
NOT ONE OF POWER TO TAKE THIS ACTION BUT OF WHETHER WE SHOULD.  AND THE
MARYLAND COURT WOULD BE EQUALLY FREE TO GIVE PETITIONERS THE BENEFIT OF
ANY RIGHTS THEY HAVE GROWING OUT OF THE NEW LAW WHETHER WE UPHELD THE
TRESPASS STATUTE AND AFFIRMED, OR REFUSED TO PASS UPON ITS VALIDITY AT
THIS TIME.  FOR OF COURSE OUR AFFIRMANCE OF THE STATE COURT'S HOLDING
THAT THE MARYLAND TRESPASS STATUTE IS CONSTITUTIONAL AS APPLIED WOULD
IN NO WAY HAMPER OR BAR DECISION OF FURTHER STATE QUESTIONS WHICH THE
MARYLAND COURT MIGHT DEEM RELEVANT TO PROTECT THE RIGHTS OF THE
PETITIONERS IN ACCORD WITH MARYLAND LAW.  RECOGNITION OF THIS POWER OF
STATE COURTS AFTER WE AFFIRM THEIR HOLDINGS ON FEDERAL QUESTIONS IS A
COMMONPLACE OCCURENCE.  SEE, E.G., PIZA HERMANOS V. CALDENTEY, 231 U.S.
690, 692 (1914); FIDELITY INS. TRUST & SAFE DEPOSIT CO. V. MCCLAIN, 178
U.S. 113, 114 (1900). 

NOR DO WE AGREE THAT BECAUSE OF THE NEW STATE QUESTION WE SHOULD
VACATE THE JUDGMENT IN ORDER TO AVOID DECIDING THE CONSTITUTIONALITY OF
THE TRESPASS STATUTE AS APPLIED.  WE FULLY RECOGNIZE THE SALUTARY
GENERAL JUDICIAL PRACTICE OF NOT UNNECESSARILY REACHING OUT TO DECIDE
CONSTITUTIONAL QUESTIONS.  BUT THIS IS NEITHER A CONSTITUTIONAL NOR A
STATUTORY REQUIREMENT.  NOR DOES THE PRINCIPLE PROPERLY UNDERSTOOD AND
APPLIED IMPOSE A RIGID, ARBITRARY, AND INEXORABLE COMMAND THAT COURTS
SHOULD NEVER DECIDE A CONSTITUTIONAL QUESTION IN ANY SINGLE CASE IS
SUBTLE INGENUITY CAN THINK UP ANY CONCEIVABLE TECHNIQUE THAT MIGHT, IF
UTILIZED, OFFER A DISTANT POSSIBILITY OF AVOIDING DECISION.  HERE WE
BELIEVE THE CONSTITUTIONALITY OF THIS TRESPASS STATUTE SHOULD BE
DECIDED. 

THIS CASE IS BUT ONE OF FIVE INVOLVING THE SAME KIND OF SIT-IN
TRESPASS PROBLEMS WE SELECTED OUT OF A LARGE AND GROWING GROUP OF
PENDING CASES TO DECIDE THIS VERY QUESTION.  WE HAVE TODAY GRANTED
CERTIORARI IN TWO MORE OF THIS GROUP OF CASES.  (FN7)  WE KNOW THAT
MANY SIMILAR CASES ARE NOW ON THE WAY AND THAT MANY OTHERS ARE BOUND TO
FOLLOW.  WE KNOW, AS DO ALL OTHERS, THAT THE CONDITIONS AND FEELINGS
THAT BROUGHT ON THESE DEMONSTRATIONS STILL EXIST AND THAT RIGHTS OF
PRIVATE PROPERTY OWNERS ON THE ONE HAND AND DEMONSTRATORS ON THE OTHER
LARGELY DEPEND AT THIS TIME ON WHETHER STATE TRESPASS LAWS CAN
CONSTITUTIONALLY BE APPLIED UNDER THESE CIRCUMSTANCES.  SINCE THIS
QUESTION IS, AS WE HAVE POINTED OUT, SQUARELY PRESENTED IN THIS VERY
CASE AND IS INVOLVED IN OTHER CASES PENDING HERE AND OTHERS BOUND TO
COME, WE THINK IT IS WHOLLY UNFAIR TO DEMONSTRATORS AND PROPERTY OWNERS
ALIKE AS WELL AS AGAINST THE PUBLIC INTEREST NOT TO DECIDE IT NOW. 
SINCE MARBURY V. MADISON, 1 CRANCH 137 (1803), IT HAS BEEN THIS COURT'S
RECOGNIZED RESPONSIBILITY AND DUTY TO DECIDE CONSTITUTIONAL QUESTIONS
PROPERLY AND NECESSARILY BEFORE IT. THAT CASE AND OTHERS HAVE STRESSED
THE DUTY OF JUDGES TO ACT WITH THE GREATEST CAUTION BEFORE FRUSTRATING
LEGISLATION BY STRIKING IT DOWN AS UNCONSTITUTIONAL.  WE SHOULD FEEL
CONSTRAINED TO DECIDE THIS QUESTION EVEN IF WE THOUGHT THE STATE LAW
INVALID.  IN THIS CASE, HOWEVER, WE BELIEVE THAT THE STATE LAW IS A
VALID EXERCISE OF STATE LEGISLATIVE POWER, THAT THE QUESTION IS
PROPERLY BEFORE US, AND THAT THE NATIONAL INTEREST IMPERATIVELY CALLS
FOR AN AUTHORITATIVE DECISION OF THE QUESTION BY THIS COURT.  UNDER
THESE CIRCUMSTANCES WE THINK THAT IT WOULD BE AN UNJUSTIFIED ABDICATION
OF OUR DUTY TO LEAVE THE QUESTION UNDISCUSSED.  THIS WE ARE NOT WILLING
TO DO.  SO WE PROCEED TO STATE OUR VIEWS ON THE MERITS OF THE
CONSTITUTIONAL CHALLENGES TO THE MARYLAND LAW. 

                                       II. 

ALTHOUGH THE QUESTION WAS NEITHER RAISED NOR DECIDED IN THE COURTS
BELOW, PETITIONERS CONTEND THAT THE MARYLAND STATUTE IS VOID FOR
VAGUENESS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
BECAUSE ITS LANGUAGE GAVE NO FAIR WARNING THAT "SIT-INS" STAGED OVER A
RESTAURANT OWNER'S PROTEST WERE PROHIBITED BY THE STATUTE.  THE
CHALLENGED STATUTORY LANGUAGE MAKES IT AN OFFENSE FOR ANY PERSON TO
"ENTER UPON OR CROSS OVER THE LAND, PREMISES OR PRIVATE PROPERTY OF ANY
PERSON OR PERSONS IN THIS STATE AFTER HAVING BEEN DULY NOTIFIED BY THE
OWNER OR HIS AGENT NOT TO DO SO  ...  ."  PETITIONERS SAY THAT THIS
LANGUAGE PLAINLY MEANS THAT AN ENTRY UPON ANOTHER'S PROPERTY IS AN
OFFENSE ONLY IF THE OWNER'S NOTICE HAS BEEN GIVEN BEFORE THE INTRUDER
IS PHYSICALLY ON THE PROPERTY; THAT THE NOTICE TO PETITIONERS THAT THEY
WERE NOT WANTED WAS GIVEN ONLY AFTER THEY HAD STEPPED FROM THE STREET
INTO THE RESTAURANT; AND THAT THE STATUTE AS APPLIED TO THEM WAS VOID
EITHER BECAUSE (1) THERE WAS NO EVIDENCE TO SUPPORT THE CHARGE OF ENTRY
AFTER NOTICE NOT TO DO SO, OR BECAUSE (2) THE STATUTE FAILED TO WARN
THAT IT COULD BE VIOLATED BY REMAINING ON PROPERTY AFTER HAVING BEEN
TOLD TO LEAVE.  AS TO (1), IN VIEW OF THE EVIDENCE AND PETITIONERS'
STATEMENTS AS THE TRIAL IT IS HARD TO TAKE SERIOUSLY A CONTENTION THAT
PETITIONERS WERE NOT FULLY AWARE, BEFORE THEY EVER ENTERED THE
RESTAURANT, THAT IT WAS THE RESTAURANT OWNER'S FIRMLY ESTABLISHED
POLICY AND PRACTICE NOT TO SERVE NEGROES.  THE WHOLE PURPOSE OF THE
"SIT-IN" WAS TO PROTEST THAT POLICY.  (2) BE THAT AS IT MAY, THE COURT
OF APPEALS OF MARYLAND HELD THAT "THE STATUTORY REFERENCES TO 'ENTRY
UPON OR CROSSING OVER,' COVER THE CASE OF REMAINING UPON LAND AFTER
NOTICE TO LEAVE," AND THE TRIAL COURT FOUND, WITH VERY STRONG
EVIDENTIARY SUPPORT, THAT AFTER UNEQUIVOCAL NOTICE TO PETITIONERS THAT
THEY WOULD NOT BE SEATED OR SERVED THEY "PERSISTED IN THEIR DEMANDS
AND, BRUSHING BY THE HOSTESS, TOOK SEATS AT VARIOUS TABLES ON THE MAIN
FLOOR AND AT THE COUNTER IN THE BASEMENT."  WE ARE UNABLE TO SAY THAT
HOLDING THIS CONDUCT BARRED BY THE MARYLAND STATUTE WAS AN UNREASONABLE
INTERPRETATION OF THE STATUTE OR ONE WHICH COULD HAVE DECEIVED OR EVEN
SURPRISED PETITIONERS OR OTHERS WHO WANTED TO UNDERSTAND AND OBEY IT.
IT WOULD CERTAINLY BE STRETCHING THE RULE AGAINST AMBIGUOUS STATUTES
VERY FAR INDEED TO HOLD THAT THE STATUTORY LANGUAGE MISLED THESE
PETITIONERS AS TO THE ACT'S MEANING, IN THE FACE OF EVIDENCE SHOWING A
PRIOR SERIES OF DEMONSTRATIONS BY NEGROES, INCLUDING SOME OF
PETITIONERS, AND IN VIEW OF THE FACT THAT THE GROUP WHICH INCLUDED
PETITIONERS CAME PREPARED TO PICKET HOOPER AND ACTUALLY COURTED ARREST,
THE BETTER TO PROTEST HIS REFUSAL TO SERVE COLORED PEOPLE. 

WE REJECT THE CONTENTION THAT THE STATUTE AS CONSTRUED IS VOID FOR
VAGUENESS.  IN DOING SO, WE DO NOT OVERLOOK OR DISREGARD THE VIEW
EXPRESSED IN OTHER CASES THAT STATUTES WHICH, IN REGULATING CONDUCT,
MAY INDIRECTLY TOUCH THE AREAS OF FREEDOM OF EXPRESSION SHOULD BE
CONSTRUED NARROWLY WHERE NECESSARY TO PROTECT THAT FREEDOM.  (FN8)  AND
WE DO NOT DOUBT THAT ONE PURPOSE OF THESE "SIT-INS" WAS TO EXPRESS A
VIGOROUS PROTEST AGAINST HOOPER'S POLICY OF NOT SERVING NEGROES.  (FN9)
BUT IT IS WHOLLY CLEAR THAT THE MARYLAND STATUTE HERE IS DIRECTED NOT
AGAINST WHAT PETITIONERS SAID BUT AGAINST WHAT THEY DID - REMAINING ON
THE PREMISES OF ANOTHER AFTER HAVING BEEN WARNED TO LEAVE, CONDUCT
WHICH STATES HAVE TRADITIONALLY PROHIBITED IN THIS COUNTRY.  (FN10)
AND NONE OF OUR PRIOR CASES HAS HELD THAT A PERSON'S RIGHT TO FREEDOM
OF EXPRESSION CARRIES WITH IT A RIGHT TO FORCE A PRIVATE PROPERTY OWNER
TO FURNISH HIS PROPERTY AS A PLATFORM TO CRITICIZE THE PROPERTY OWNER'S
USE OF THAT PROPERTY.  CF.  GIBONEY V. EMPIRE STORAGE & ICE CO., 336
U.S. 490 (1949).  WE BELIEVE THAT THE STATUTE AS CONSTRUED AND APPLIED
IS NOT VOID FOR VAGUENESS. 

                  III. 


"NO STATE SHALL  ...  DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN ITS
JURISDICTION THE EQUAL PROTECTION THE LAWS." 

THIS SECTION OF THE AMENDMENT, UNLIKE OTHER SECTIONS, (FN11) IS A
PROHIBITION AGAINST CERTAIN CONDUCT ONLY WHEN DONE BY A STATE - "STATE
ACTION" AS IT HAS COME TO BE KNOWN - AND "ERECTS NO SHIELD AGAINST
MERELY PRIVATE CONDUCT, HOWEVER DISCRIMINATORY OR WRONGFUL."  SHELLEY
V. KRAEMER, 334 U.S. 1, 13 (1948).  (FN12)  THIS WELL-ESTABLISHED
INTERPRETATION OF SECTION 1 OF THE AMENDMENT - WHICH ALL THE PARTIES
HERE, INCLUDING THE PETITIONERS AND THE SOLICITOR GENERAL, ACCEPT -
MEANS THAT THIS SECTION OF THE AMENDMENT DOES NOT OF ITSELF, STANDING
ALONE, IN THE ABSENCE OF SOME COOPERATIVE STATE ACTION OR COMPULSION,
(FN13) FORBID PROPERTY HOLDERS, INCLUDING RESTAURANT OWNERS, TO BAN
PEOPLE FROM ENTERING OR REMAINING UPON THEIR PREMISES, EVEN IF THE
OWNERS ACT OUT OF RACIAL PREJUDICE.  BUT "THE PROHIBITIONS OF THE
AMENDMENT EXTEND TO ALL ACTION OF THE STATE DENYING EQUAL PROTECTION OF
THE LAWS" WHETHER "BY ITS LEGISLATIVE, ITS EXECUTIVE, OR ITS JUDICIAL
AUTHORITIES."  VIRIGNIA V. RIVES, 100 U.S. 313, 318 (1880).  THE
AMENDMENT THUS FORBIDS ALL KINDS OF STATE ACTION, BY ALL STATE AGENCIES
AND OFFICERS, THAT DISCRIMINATE AGAINST PERSONS ON ACCOUNT OF THEIR
RACE.  (FN14)  IT WAS THIS KIND OF STATE ACTION THAT WAS HELD INVALID
IN BROWN V. BOARD OF EDUCATION, 347 U.S.  483 (1954), PETERSON V. CITY
OF GREENVILLE, 373 U.S. 244 (1963), LOMBARD V. LOUISIANA, 373 U.S. 267
(1963), AND GRIFFIN V. COUNTY SCHOOL BOARD, 377 U.S. 218 (1964), AND
THAT THIS COURT TODAY HOLDS INVALID IN ROBINSON V. FLORIDA, ANTE, P.
153.    PETITIONERS, BUT NOT THE SOLICITOR GENERAL, CONTEND THAT THEIR
CONVICTION FOR TRESPASS UNDER THE STATE STATUTE WAS BY ITSELF THE KIND
OF DISCRIMINATORY STATE ACTION FORBIDDEN BY THE FOURTEENTH AMENDMENT. 
THIS CONTENTION, ON ITS FACE, HAS PLAUSIBILITY WHEN CONSIDERED ALONG
WITH GENERAL STATEMENTS TO THE EFFECT THAT UNDER THE AMENDMENT
FORBIDDEN "STATE ACTION" MAY BE THAT OF THE JUDICIAL AS WELL AS OF THE
LEGISLATIVE OR EXECUTIVE BRANCH OF GOVERNMENT.  BUT A MECHANICAL
APPLICATION OF THE FOURTEENTH AMENDMENT TO THIS CASE CANNOT SURVIVE
ANALYSIS.  THE AMENDMENT DOES NOT FORBID A STATE TO PROSECUTE FOR
CRIMES COMMITTED AGAINST A PERSON OR HIS PROPERTY, HOWEVER PREJUDICED
OR NARROW THE VICTIM'S VIEWS MAY BE.  NOR CAN WHATEVER PREJUDICE AND
BIGOTRY THE VICTIM OF A CRIME MAY HAVE BE AUTOMATICALLY ATTRIBUTED TO
THE STATE THAT PROSECUTES.  SUCH A DOCTRINE WOULD NOT ONLY BE BASED ON
A FICTION; IT WOULD ALSO SEVERELY HANDICAP A STATE'S EFFORTS TO
MAINTAIN A PEACEFUL AND ORDERLY SOCIETY.  OUR SOCIETY HAS PUT ITS TRUST
IN A SYSTEM OF CRIMINAL LAWS TO PUNISH LAWLESS CONDUCT.  TO AVERT
PERSONAL FEUDS AND VIOLENT BRAWLS IT HAS LED ITS PEOPLE TO BELIEVE AND
EXPECT THAT WRONGS AGAINST THEM WILL BE VINDICATED IN THE COURTS. 
INSTEAD OF ATTEMPTING TO TAKE THE LAW INTO THEIR OWN HANDS, PEOPLE HAVE
BEEN TAUGHT TO CALL FOR POLICE PROTECTION TO PROTECT THEIR RIGHTS
WHEREVER POSSIBLE.  (FN15)  IT WOULD BETRAY OUR WHOLE PLAN FOR A
TRANQUIL AND ORDERLY SOCIETY TO SAY THAT A CITIZEN, BECAUSE OF HIS
PERSONAL PREJUDICES, HABITS, ATTITUDES, OR BELIEFS, IS CAST OUTSIDE THE
LAW'S PROTECTION AND CANNOT CALL FOR THE AID OF OFFICERS SWORN TO
UPHOLD THE LAW AND PRESERVE THE PEACE.  THE WORST CITIZEN NO LESS THAN
THE BEST IS ENTITLED TO EQUAL PROTECTION OF THE LAWS OF HIS STATE AND
OF HIS NATION.  NONE OF OUR PAST CASES JUSTIFIES READING THE FOURTEENTH
AMENDMENT IN A WAY THAT MIGHT WELL PENALIZE CITIZENS WHO ARE LAW
ABIDING ENOUGH TO CALL UPON THE LAW AND ITS OFFICERS FOR PROTECTION
INSTEAD OF USING THEIR OWN PHYSICAL STRENGTH OR DANGEROUS WEAPONS TO
PRESERVE THEIR RIGHTS. 

IN CONTENDING THAT THE STATE'S PROSECUTION OF PETITIONERS FOR TRESPASS
IS STATE ACTION FORBIDDEN BY THE FOURTEENTH AMENDMENT, PETITIONERS RELY
CHIEFLY ON SHELLEY V. KRAEMER, SUPRA.  THAT RELIANCE IS MISPLACED. 
SHELLEY HELD THAT THE FOURTEENTH AMENDMENT WAS VIOLATED BY A STATE'S
ENFORCEMENT OF RESTRICTIVE COVENANTS PROVIDING THAT CERTAIN PIECES OF
REAL ESTATE SHOULD NOT BE USED OR OCCUPIED BY NEGROES, ORIENTALS, OR
ANY OTHER NON-CAUCASIANS, EITHER AS OWNERS OR TENANTS, AND THAT IN CASE
OF USE OR OCCUPANCY BY SUCH PROSCRIBED CLASSES, THE TITLE OF ANY PERSON
SO USING OR OCCUPYING IT SHOULD BE DIVESTED.  MANY BRIFES WERE FILED IN
THAT CASE BY THE PARTIES AND BY AMICI CURIAE.  TO SUPPORT THE HOLDING
THAT STATE ENFORCEMENT OF THE AGREEMENTS CONSTITUTED PROHIBITED STATE
ACTION EVEN THOUGH THE AGREEMENTS WERE MADE BY PRIVATE PERSONS TO WHOM,
IF THEY ACT ALONE, THE AMENDMENT DOES NOT APPLY, TWO CHIEF GROUNDS WERE
URGED:  (1) THIS TYPE OF AGREEMENT CONSTITUTED A RESTRAINT ON
ALIENATION OF PROPERTY, SOMETIMES IN PERPETUITY, WHICH, IF VALID, WAS
IN REALITY THE EQUIVALENT OF AND HAD THE EFFECT OF STATE AND MUNICIPAL
ZONING LAWS, ACCOMPLISHING THE SAME KIND OF RACIAL DISCRIMINATION AS IF
THE STATE HAD PASSED A STATUTE INSTEAD OF LEAVING THIS OBJECTIVE TO BE
ACCOMPLISHED BY A SYSTEM OF PRIVATE CONTRACTS, ENFORCED BY THE STATE. 
SEE MARSH V. ALABAMA, 326 U.S. 501 (1946); TERRY V. ADAMS, 345 U.S. 461
(1953); CF. YICK WO V. HOPKINS, 118 U.S. 356 (1886); NASHVILLE, C. &
ST. L.R. CO. V. BROWNING, 310 U.S. 352 (1940).  (FN16)  (2) NEARLY ALL
THE BRIEFS IN SHELLEY WHICH ASKED INVALIDATION OF THE RESTRICTIVE
COVENANTS ITERATED AND REITERATED THAT JUDICIAL ENFORCEMENT OF THIS
SYSTEM OF COVENANTS WAS FORBIDDEN STATE ACTION BECAUSE THE RIGHT OF A
CITIZEN TO OWN, USE, ENJOY, OCCUPY, AND DISPOSE OF PROPERTY IS A
FEDERAL RIGHT PROTECTED BY THE CIVIL RIGHTS ACT OF 1866 AND 1870,
VALIDLY PASSED PURSUANT TO CONGRESSIONAL POWER AUTHORIZED BY SECTION 5
OF THE FOURTEENTH AMENDMENT.  (FN17)  THIS ARGUMENT WAS BUTTRESSED BY
CITATION OF MANY CASES, SOME OF WHICH ARE REFERRED TO IN THIS COURT'S
OPINION IN BUCHANAN V. WARLEY, 245 U.S. 60 (1917).  IN THAT CASE THIS
COURT, ACTING UNDER THE FOURTEENTH AMENDMENT AND THE CIVIL RIGHTS ACTS
OF 1866 AND 1870, STRUCK DOWN A CITY ORDINANCE WHICH ZONED PROPERTY ON
THE BASIS OF RACE, STATING, 245 U.S., AT 81, "THE RIGHT WHICH THE
ORDINANCE ANNULLED WAS THE CIVIL RIGHT OF A WHITE MAN TO DISPOSE OF HIS
PROPERTY IF HE SAW FIT TO DO SO TO A PERSON OF COLOR AND OF A COLORED
PERSON TO MAKE SUCH DISPOSITION TO A WHITE PERSON."  BUCHANAN V. WARLEY
WAS HEAVILY RELIED ON BY THIS COURT IN SHELLEY V. KRAEMER, SUPRA, WHERE
THIS STATEMENT FROM BUCHANAN WAS QUOTED:  "THE FOURTEENTH AMENDMENT AND
THESE STATUTES OF 1866 AND 1870 ENACTED IN FURTHERANCE OF ITS PURPOSE
OPERATE TO QUALIFY AND ENTITLE A COLORED MAN TO ACQUIRE PROPERTY
WITHOUT STATE LEGISLATION DISCRIMINATING AGAINST HIM SOLELY BECAUSE OF
COLOR."  334 U.S., AT 11-12.  AND THE COURT IN SHELLEY WENT ON TO CITE
WITH APPROVAL TWO LATER DECISIONS OF THIS COURT WHICH, RELYING ON
BUCHANAN V. WARLEY, HAD INVALIDATED OTHER CITY ORDINANCES.  (FN18) 

IT SEEMS PRETTY CLEAR THAT THE REASON JUDICIAL ENFORCEMENT OF THE
RESTRICTIVE COVENANTS IN SHELLEY WAS DEEMED STATE ACTION WAS NOT MERELY
THE FACT THAT A STATE COURT HAD ACTED, BUT RATHER THAT IT HAD ACTED "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."  334 U.S., AT 19.  IN OTHER WORDS, THIS COURT HELD THAT STATE
ENFORCEMENT OF THE COVENANTS HAD THE EFFECT OF DENYING TO THE PARTIES
THEIR FEDERALLY GUARANTEED RIGHT TO OWN, OCCUPY, ENJOY, AND USE THIER
PROPERTY WITHOUT REGARD TO RACE OR COLOR.  THUS, THE LINE OF CASES FROM
BUCHANAN THROUGH SHELLEY ESTABLISHES THESE PROPOSITIONS:  (1) WHEN AN
OWNER OF PROPERTY IS WILLING TO SELL AND A WOULD-BE PURCHASER IS
WILLING TO BUY, THEN THE CIVIL RIGHTS ACT OF 1866, WHICH GIVES ALL
PERSONS THE SAME RIGHT TO "INHERIT, PURCHASE, LEASE, SELL, HOLD, AND
CONVEY" PROPERTY, PROHIBITS A STATE, WHETHER THROUGH ITS LEGISLATURE,
EXECUTIVE, OR JUDICIARY, FROM PREVENTING THE SALE ON THE GROUNDS OF THE
RACE OR COLOR OF ONE OF THE PARTIES.  SHELLEY V. KRAEMER, SUPRA, 334
U.S., AT 19.  (2) ONCE A PERSON HAS BECOME A PROPERTY OWNER, THEN HE
ACQUIRES ALL THE RIGHTS THAT GO WITH OWNERSHIP:  "THE FREE USE,
ENJOYMENT, AND DISPOSAL OF A PERSON'S ACQUISITIONS WITHOUT CONTROL OR
DIMINUTION SAVE BY THE LAW OF THE LAND."  BUCHANAN V. WARLEY, SUPRA,
245 U.S., AT 74.  THIS MEANS THAT THE PROPERTY OWNER MAY, IN THE
ABSENCE OF A VALID STATUTE FORBIDDING IT, SELL HIS PROPERTY TO WHOM HE
PLEASES AND ADMIT TO THAT PROPERTY WHOM HE WILL; SO LONG AS BOTH
PARTIES ARE WILLING PARTIES, THEN THE PRINCIPLES STATED IN BUCHANAN AND
SHELLEY PROTECT THIS RIGHT.  BUT EQUALLY, WHEN ONE PARTY IS UNWILLING,
AS WHEN THE PROPERTY OWNER CHOOSES NOT TO SELL TO A PARTICULAR PERSON
OR NOT TO ADMIT THAT PERSON, THEN, AS THIS COURT EMPHASIZED IN
BUCHANAN, HE IS ENTITLED TO RELY ON THE GUARANTEE OF DUE PROCESS OF
LAW, THAT IS, "LAW OF THE LAND," TO PROTECT HIS FREE USE AND ENJOYMENT
OF PROPERTY AND TO KNOW THAT ONLY BY VALID LEGISLATION, PASSED PURSUANT
TO SOME CONSTITUTIONAL GRANT OF POWER, CAN ANYONE DISTURB THIS FREE
USE.  BUT PETITIONERS HERE WOULD HAVE US HOLD THAT, DESPITE THE ABSENCE
OF ANY VALID STATUTE RESTRICTING THE USE OF HIS PROPERTY, THE OWNER OF
HOOPER'S RESTAURANT IN BALTIMORE MUST NOT BE ACCORDED THE SAME
FEDERALLY GUARANTEED RIGHT TO OCCUPY, ENJOY, AND USE PROPERTY GIVEN TO
THE PARTIES IN BUCHANAN AND SHELLEY; INSTEAD, PETITIONERS WOULD HAVE US
SAY THAT HOOPER'S FEDERAL RIGHT MUST BE CUT DOWN AND HE MUST BE
COMPELLED - THOUGH NO STATUTE SAID HE MUST - TO ALLOW PEOPLE TO FORCE
THEIR WAY INTO HIS RESTAURANT AND REMAIN THERE OVER HIS PROTEST.  WE
CANNOT SUBSCRIBE TO SUCH A MUTILATING, ONE-SIDED INTERPRETATION OF
FEDERAL GUARANTEES THE VERY HEART OF WHICH IS EQUAL TREATMENT UNDER LAW
TO ALL.  WE MUST NEVER FORGET THAT THE FOURTEENTH AMENDMENT PROTECTS
"LIFE, LIBERTY, OR PROPERTY" OF ALL PEOPLE GENERALLY, NOT JUST SOME
PEOPLE'S "LIFE," SOME PEOPLE'S "LIBERTY," AND SOME KINDS OF
"PROPERTY." 

IN CONCLUDING THAT MERE JUDICIAL ENFORCEMENT OF THE TRESPASS LAW IS
NOT SUFFICIENT TO IMPUTE TO MARYLAND HOOPER'S REFUSAL TO SERVE NEGROES,
WE ARE IN ACCORD WITH THE SOLICITOR GENERAL'S VIEWS AS WE UNDERSTAND
THEM.  HE TAKES IT FOR GRANTED: 

"THAT THE MERE FACT OF STATE INTERVENTION THROUGH THE COURTS OR OTHER
PUBLIC AUTHORITY IN ORDER TO PROVIDE SANCTIONS FOR A PRIVATE DECISION
IS NOT ENOUGH TO IMPLICATE THE STATE FOR THE PURPOSES OF THE FOURTEENTH
AMENDMENT  ...  .  WHERE THE ONLY STATE INVOLVEMENT IS COLOR-BLIND
SUPPORT FOR EVERY PROPERTY-OWNER'S EXERCISE OF THE NORMAL RIGHT TO
CHOOSE HIS BUSINESS VISITORS OR SOCIAL GUESTS, PROOF THAT THE
PARTICULAR PROPERTY-OWNER WAS MOTIVATED BY RACIAL OR RELIGIOUS
PREJUDICE IS NOT ENOUGH TO CONVICT THE STATE OF DENYING EQUAL
PROTECTION OF THE LAWS." 

THE SOLICITOR GENERAL ALSO SAYS: 

"THE PRESERVATION OF A FREE AND PLURALISTIC SOCIETY WOULD SEEM TO
REQUIRE SUBSTANTIAL FREEDOM FOR PRIVATE CHOICE IN SOCIAL, BUSINESS AND
PROFESSIONAL ASSOCIATIONS.  FREEDOM OF CHOICE MEANS THE LIBERTY TO BE
WRONG AS WELL AS RIGHT, TO BE MEAN AS WELL AS NOBLE, TO BE VICIOUS AS
WELL AS KIND.  AND EVEN IF THAT VIEW WERE QUESTIONED, THE PHILOSOPHY OF
FEDERALISM LEAVES AN AREA FOR CHOICE TO THE STATES AND THEIR PEOPLE,
WHEN THE STATE IS NOT OTHERWISE INVOLVED, INSTEAD OF VESTING THE ONLY
POWER OF EFFECTIVE DECISION IN THE FEDERAL COURTS." 

WE, LIKE THE SOLICITOR GENERAL, REJECT THE ARGUMENT THAT THE STATE'S
PROTECTION OF HOOPER'S DESIRE TO CHOOSE CUSTOMERS ON THE BASIS OF RACE
BY PROSECUTING TRESPASSERS IS ENOUGH, STANDING ALONE, TO DEPRIVE HOOPER
OF HIS RIGHT TO OPERATE THE PROPERTY IN HIS OWN WAY.  BUT WE DISAGREE
WITH THE CONTENTION THAT THERE ARE OTHER CIRCUMSTANCES WHICH, ADDED TO
THE STATE'S PROSECUTION FOR TRESPASS, JUSTIFY A FINDING OF STATE
ACTION.  THERE IS NO MARYLAND LAW, NO MUNICIPAL ORDINANCE, AND NO
OFFICIAL PROCLAMATION OR ACTION OF ANY KIND THAT SHOWS THE SLIGHTEST
STATE COERCION OF, OR ENCOURAGEMENT TO, HOOPER TO BAR NEGROES FROM HIS
RESTAURANT.  (FN19)  NEITHER THE STATE, THE CITY, NOR ANY OF THEIR
AGENCIES HAS LEASED PUBLICLY OWNED PROPERTY TO HOOPER.  (FN20)  IT IS
TRUE THAT THE STATE AND CITY REGULATE THE RESTAURANTS - BUT NOT BY
COMPELLING RESTAURANTS TO DENY SERVICE TO CUSTOMERS BECAUSE OF THEIR
RACE.  LICENSE FEES ARE COLLECTED, BUT THIS LICENSING HAS NO
RELATIONSHIP TO RACE.  UNDER SUCH CIRCUMSTANCES, TO HOLD THAT A STATE
MUST BE HELD TO HAVE PARTICIPATED IN PREJUDICIAL CONDUCT OF ITS
LICENSEES IS TOO BIG A JUMP FOR US TO TAKE.  BUSINESSES OWNED BY
PRIVATE PERSONS DO NOT BECOME AGENCIES OF THE STATE BECAUSE THEY ARE
LICENSED; TO HOLD THAT THEY DO WOULD BE COMPLETELY TO NEGATE ALL OUR
PRIVATE OWNERSHIP CONCEPTS AND PRACTICES. 

NEITHER THE PARTIES NOR THE SOLICITOR GENERAL, AT LEAST WITH RESPECT
TO MARYLAND, HAS BEEN ABLE TO FIND THE PRESENT EXISTENCE OF ANY STATE
LAW OR LOCAL ORDINANCE, ANY STATE COURT OR ADMINISTRATIVE RULING, OR
ANY OTHER OFFICIAL STATE CONDUCT WHICH COULD POSSIBLY HAVE HAD ANY
COERCIVE INFLUENCE ON HOOPER'S RACIAL PRACTICES.  YET DESPITE A
COMPLETE ABSENCE OF ANY SORT OF PROOF OR EVEN RESPECTABLE SPECULATION
THAT MARYLAND IN ANY WAY INSTIGATED OR ENCOURAGED HOOPER'S REFUSAL TO
SERVE NEGROES, IT IS ARGUED AT LENGTH THAT HOOPER'S PRACTICE SHOULD BE
CLASSIFIED AS "STATE ACTION."  THIS CONTENTION RESTS ON A LONG
NARRATIVE OF HISTORICAL EVENTS, BOTH BEFORE AND SINCE THE CIVIL WAR, TO
SHOW THAT IN MARYLAND, AND INDEED IN THE WHOLE SOUTH, STATE LAWS AND
STATE ACTIONS HAVE BEEN A PART OF A PATTERN OF RACIAL SEGREGATION IN
THE CONDUCT OF BUSINESS, SOCIAL, RELIGIOUS, AND OTHER ACTIVITIES.  THIS
PATTERS OF SEGREGATION HARDLY NEEDS HISTORICAL REFERENCES TO PROVE IT.
THE ARGUMENT IS MADE THAT THE TRESPASS CONVICTION SHOULD BE LABELED
"STATE ACTION" BECAUSE THE "MOMENTUM" OF MARYLAND'S "PAST LEGISLATION"
IS STILL SUBSTANTIAL IN THE REALM OF PUBLIC ACCOMMODATIONS.  TO THAT
EXTENT, THE SOLICITOR GENERAL ARGUES, "A STATE WHICH HAS DRAWN A COLOR
LINE MAY NOT SUDDENLY ASSERT THAT IT IS COLOR BLIND."  WE CANNOT ACCEPT
SUCH AN EX POST FACTO ARGUMENT TO HOLD THE APPLICATION HERE OF
MARYLAND'S TRESPASS LAW UNCONSTITUTIONAL.  NOR CAN WE APPRECIATE THE
FAIRNESS OR JUSTICE OF HOLDING THE PRESENT GENERATION OF MARYLANDERS
RESPONSIBLE FOR WHAT THEIR ANCESTORS DID IN OTHER DAYS (FN21) - EVEN IF
WE HAD THE RIGHT TO SUBSTITUTE OUR OWN IDEAS OF WHAT THE FOURTEENTH
AMENDMENT OUGHT TO BE FOR WHAT IT WAS WRITTEN AND ADOPTED TO ACHIEVE. 

THERE IS ANOTHER OBJECTION TO ACCEPTING THIS ARGUMENT.  IF IT WERE
ACCEPTED, WE WOULD HAVE ONE FOURTEENTH AMENDMENT FOR THE SOUTH AND
QUITE A DIFFERENT AND MORE LENIENT ONE FOR THE OTHER PARTS OF THE
COUNTRY.  PRESENT "STATE ACTION" IN THIS AREA OF CONSTITUTIONAL RIGHTS
WOULD BE GOVERNED BY PAST HISTORY IN THE SOUTH - BY PRESENT CONDUCT IN
THE NORTH AND WEST.  OUR CONSTITUTION WAS NOT WRITTEN TO BE READ THAT
WAY, AND WE WILL NOT DO IT.

                                       IV. 

OUR BROTHER GOLDBERG IN HIS OPINION ARGUES THAT THE FOURTEENTH
AMENDMENT, OF ITS OWN FORCE AND WITHOUT THE NEED OF CONGRESSIONAL
LEGISLATION, PROHIBITS PRIVATELY OWNED RESTAURANTS FROM DISCRIMINATING
ON ACCOUNT OF COLOR OR RACE.  HIS ARGUMENT RUNS SOMETHING LIKE THIS:
(1) CONGRESS UNDERSTOOD THE "ANGLO-AMERICAN" COMMON LAW, AS IT THEN
EXISTED IN THE SEVERAL STATES, TO PROHIBIT OWNERS OF INNS AND OTHER
ESTABLISHMENTS OPEN TO THE PUBLIC FROM DISCRIMINATING ON ACCOUNT OF
RACE; (2) IN PASSING THE CIVIL RIGHTS ACT OF 1866 AND OTHER CIVIL
RIGHTS LEGISLATION, CONGRESS MEANT ACCESS TO SUCH ESTABLISHMENTS TO BE
AMONG THE "CIVIL RIGHTS" PROTECTED; (3) FINALLY, THOSE WHO FRAMED AND
PASSED THE FOURTEENTH AMENDMENT INTENDED IT, OF ITS OWN FORCE, TO
ASSURE PERSONS OF ALL RACES EQUAL ACCESS TO PRIVATELY OWNED INNS AND
OTHER ACCOMMODATIONS.  IN MAKING THIS ARGUMENT, THE OPINION REFERS US
TO THREE STATE SUPREME COURT CASES AND TO CONGRESSIONAL DEBATES ON
VARIOUS POST-CIVIL WAR CIVIL RIGHTS BILLS.  HOWEVER, NOT ONLY DOES THE
VERY MATERIAL CITED FURNISH SCANT, AND OFTEN CONTRADICTORY, SUPPORT FOR
THE FIRST TWO PROPOSITIONS (ABOUT THE COMMON LAW AND THE RECONSTRUCTION
ERA STATUTES), BUT, EVEN MORE IMPORTANT, THE MATERIAL FURNISHES
ABSOLUTELY NONE FOR THE THIRD PROPOSITION, WHICH IS THE ISSUE IN THIS
CASE. 

IN THE FIRST PLACE, THERE WAS CONSIDERABLE DOUBT AND ARGUMENT
CONCERNING WHAT THE COMMON LAW IN THE 1860'S REQUIRED EVEN OF CARRIERS
AND INNKEEPERS AND STILL MORE CONCERNING WHAT IT REQUIRED OF OWNERS OF
OTHER ESTABLISHMENTS.  FOR EXAMPLE, IN SENATE DEBATES IN 1864 ON A
PROPOSAL TO AMEND THE CHARTER OF THE STREET RAILWAY COMPANY IN THE
DISTRICT OF COLUMBIA TO PROHIBIT IT FROM EXCLUDING ANY PERSON FROM ITS
CARS ON ACCOUNT OF COLOR - A DEBATE CITED IN MR. JUSTICE GOLDBERG'S
OPINION - ONE SENATOR THOUGHT THAT THE COMMON LAW WOULD GIVE A REMEDY
TO ANY NEGRO EXCLUDED FROM A STREET CAR, (FN22) WHILE ANOTHER ARGUED
THAT "IT WAS UNIVERSALLY CONCEDED THAT RAILROAD COMPANIES, STEAMBOAT
PROPRIETORS, COACH LINES, HAD THE RIGHT TO MAKE THIS REGULATION"
REQUIRING NEGROES TO RIDE IN SEPARATE CARS.  (FN23)  SENATOR SUMNER OF
MASSACHUSETTS, ONE OF THE CHIEF PROPONENTS OF LEGISLATION OF THIS TYPE,
ADMITTED THAT THERE WAS "DOUBT" BOTH AS TO WHAT THE STREET RAILWAY'S
EXISTING CHARTER REQUIRED AND AS TO WHAT THE COMMON LAW REQUIRED;
THEREFORE HE PROPOSED THAT, SINCE THE COMMON LAW HAD "FALLEN INTO
DISUSE" OR "BECOME DISPUTABLE," CONGRESS SHOULD ACT:  "LET THE RIGHTS
OF COLORED PERSONS BE PLACED UNDER THE PROTECTION OF POSITIVE STATUTE
...  ."  (FN24) 

SECOND, IT IS NOT AT ALL CLEAR THAT IN THE STATUTES RELIED ON - THE
CIVIL RIGHTS ACT OF 1866 AND THE SUPPLEMENTARY FREEDMEN'S BUREAU ACT -
CONGRESS MEANT FOR THOSE STATUTES TO GUARANTEE NEGROES ACCESS TO
ESTABLISHMENTS OTHERWISE OPEN TO THE GENERAL PUBLIC.  (FN25)  FOR
EXAMPLE, IN THE HOUSE DEBATES ON THE CIVIL RIGHTS BILL OF 1866 CITED,
NOT ONE OF THE SPEAKERS MENTIONED PRIVATELY OWNED ACCOMMODATIONS. 
(FN26)  NEITHER THE TEXT OF THE BILL, (FN27) NOR, FOR EXAMPLE, THE
ENUMERATION BY A LEADING SUPPORTER OF THE BILL OF WHAT "CIVIL RIGHTS"
THE BILL WOULD PROTECT, (FN28) EVEN MENTIONED INNS OR OTHER SUCH
FACILITIES.  HENCE WE ARE POINTED TO NOTHING IN THE LEGISLATIVE HISTORY
WHICH GIVES RISE TO AN INFERENCE THAT THE PROPONENTS OF THE CIVIL
RIGHTS ACT OF 1866 MEANT TO INCLUDE AS A "CIVIL RIGHT" A RIGHT TO
DEMAND SERVICE AT A PRIVATELY OWNED RESTAURANT OR OTHER PRIVATELY OWNED
ESTABLISHMENT.  AND, IF THE 1866 ACT DID IMPOSE A STATUTORY DUTY ON
INNKEEPERS AND OTHERS, THEN IT IS STRANGE INDEED THAT SENATOR SUMNER IN
1872 THOUGHT THAT AN ACT OF CONGRESS WAS NECESSARY TO REQUIRE HOTELS,
CARRIERS, THEATRES, AND OTHER PLACES TO RECEIVE ALL RACES, (FN29) AND
EVEN MORE STRANGE THAT CONGRESS FELT OBLIGED IN 1875 TO PASS THE CIVIL
RIGHTS ACT OF THAT YEAR EXPLICITLY PROHIBITING DISCRIMINATION BY INNS,
CONVEYANCES, THEATRES, AND OTHER PLACES OF PUBLIC AMUSEMENT.  (FN30) 

FINALLY, AND CONTROLLING HERE, THERE IS NOTHING WHATEVER IN THE
MATERIAL CITED TO SUPPORT THE PROPOSITION THAT THE FOURTEENTH
AMENDMENT, WITHOUT CONGRESSIONAL LEGISLATION, PROHIBITS OWNERS OF
RESTAURANTS AND OTHER PLACES TO REFUSE SERVICE TO NEGROES.  WE ARE
CITED, ONLY IN PASSING, TO GENERAL STATEMENTS MADE IN THE HOUSE OF
REPRESENTATIVES TO THE EFFECT THAT THE FOURTEENTH AMENDMENT WAS MEANT
TO INCORPORATE THE "PRINCIPLES" OF THE CIVIL RIGHTS ACT OF 1866. 
(FN31)  WHETHER "PRINCIPLES" ARE THE SAME THING AS "PROVISIONS," WE ARE
NOT TOLD.  BUT WE HAVE NOTED THE SERIOUS DOUBT THAT THE CIVIL RIGHTS
ACT OF 1866 EVEN DEALT WITH ACCESS TO PRIVATELY OWNED FACILITIES.  AND
IT IS REVEALING THAT IN NOT ONE OF THE PASSAGES CITED FROM THE DEBATES
ON THE FOURTEENTH AMENDMENT DID ANY SPEAKER SUGGEST THAT THE AMENDMENT
WAS DESIGNED, OF ITSELF, TO ASSURE ALL RACES EQUAL TREATMENT AT INNS
AND OTHER PRIVATELY OWNED ESTABLISHMENTS. 

APART FROM THE ONE PASSING REFERENCE JUST MENTIONED ABOVE TO THE
DEBATES ON THE FOURTEENTH AMENDMENT, A REFERENCE WHICH WE HAVE SHOWN
HAD NO RELEVANCE WHATEVER TO WHOM RESTAURANTS SHOULD SERVE, EVERY ONE
OF THE PASSAGES CITED DEALS ENTIRELY WITH PROPOSED LEGISLATION - NOT
WITH THE AMENDMENT.  (FN32)  IT SHOULD BE OBVIOUS THAT WHAT MAY HAVE
BEEN PROPOSED IN CONNECTION WITH PASSAGE OF ONE STATUTE OR ANOTHER IS
ALTOGETHER IRRELEVANT TO THE QUESTION OF WHAT THE FOURTEENTH AMENDMENT
DOES IN THE ABSENCE OF LEGISLATION.  IT IS INTERESTING TO NOTE THAT IN
1872, SOME YEARS AFTER THE PASSAGE OF THE FOURTEENTH AMENDMENT, SENATOR
SUMNER, ALWAYS AN INDEFATIGABLE PROPONENT OF STATUTES OF THIS KIND,
PROPOSED IN A DEBATE TO WHICH WE ARE CITED A BILL TO GIVE ALL CITIZENS,
REGARDLESS OF COLOR, EQUAL ENJOYMENT OF CARRIERS, HOTELS, THEATRES, AND
CERTAIN OTHER PLACES.  HE SUBMITTED THAT, AS TO HOTELS AND CARRIERS
(BUT NOT AS TO THEATRES AND PLACES OF AMUSEMENT), THE BILL "SIMPLY
REENFORCED" THE COMMON LAW; (FN33) IT IS SIGNIFICANT THAT HE DID NOT
ARGUE THAT THE BILL WOULD ENFORCE A RIGHT ALREADY PROTECTED BY THE
FOURTEENTH AMENDMENT ITSELF - THE STRONGER ARGUMENT, HAD IT BEEN
AVAILABLE TO HIM.  SIMILARLY, IN AN 1874 DEBATE ON A BILL TO GIVE ALL
CITIZENS, REGARDLESS OF COLOR, EQUAL ENJOYMENT OF INNS, PUBLIC
CONVEYANCES, THEATRES, PLACES OF PUBLIC AMUSEMENT, COMMON SCHOOLS, AND
CEMETERIES (A DEBATE ALSO CITED), SENATOR PRATT ARGUED THAT THE BILL
GAVE THE SAME RIGHTS AS THE COMMON LAW BUT WOULD BE A MORE EFFECTIVE
REMEDY.  (FN34)  AGAIN, IT IS SIGNIFICANT THAT, LIKE SUMNER IN THE 1872
DEBATES, PRATT SUGGESTED AS PRECEDENT FOR THE BILL ONLY HIS BELIEF THAT
THE COMMON LAW REQUIRED EQUAL TREATMENT; HE NEVER INTIMATED THAT THE
FOURTEENTH AMENDMENT LAID DOWN SUCH A REQUIREMENT. 

WE HAVE CONFINED OURSELVES ENTIRELY TO THOSE DEBATES CITED IN BROTHER
GOLDBERG'S OPINION THE BETTER TO SHOW HOW, EVEN ON ITS OWN EVIDENCE,
THE OPINION'S ARGUMENT THAT THE FOURTEENTH AMENDMENT WITHOUT MORE
PROHIBITS DISCRIMINATION BY RESTAURANTS AND OTHER SUCH PLACES RESTS ON
A WHOLLY INADEQUATE HISTORICAL FOUNDATION.  WHEN READ AND ANALYZED, THE
ARGUMENT IS SHOWN TO REST ENTIRELY ON WHAT SPEAKERS ARE SAID TO HAVE
BELIEVED BILLS AND STATUTES OF THE TIME WERE MEANT TO DO.  SUCH PROOF
FAILS ENTIRELY WHEN THE QUESTION IS, NOT WHAT STATUTES DID, BUT RATHER
WHAT THE CONSTITUTION DOES.  NOR ARE THE THREE STATE CASES (FN35)
RELIED ON ANY BETTER EVIDENCE, FOR ALL THREE DEALT WITH STATE
ANTIDISCRIMINATION STATUTES; NOT ONE PURPORTED TO INTERPRET THE
FOURTEENTH AMENDMENT.  (FN36)  AND, IF WE ARE TO SPEAK OF CASES DECIDED
AT THAT TIME, WE SHOULD RECALL THAT THIS COURT, COMPOSED OF JUSTICES
APPOINTED BY PRESIDENTS LINCOLN, GRANT, HAYES, GARFIELD, AND ARTHUR,
HELD IN A SERIES OF CONSTITUTIONAL INTERPRETATIONS BEGINNING WITH THE
SLAUGHTER-HOUSE CASES, 16 WALL.  36 (1873), THAT THE AMENDMENT OF
ITSELF WAS DIRECTED AT STATE ACTION ONLY AND THAT IT DID NOT DISPLACE
THE POWER OF THE STATE AND FEDERAL LEGISLATIVE BODIES TO REGULATE THE
AFFAIRS OF PRIVATELY OWNED BUSINESSES.  (FN37) 

WE ARE ADMONISHED THAT IN DECIDING THIS CASE WE SHOULD REMEMBER THAT
"IT IS A CONSTITUTION WE ARE EXPOUNDING."  (FN38)  WE CONCLUDE AS WE DO
BECAUSE WE REMEMBER THAT IT IS A CONSTITUTION AND THAT IT IS OUR DUTY
"TO BOW WITH RESPECTFUL SUBMISSION TO ITS PROVISIONS."  (FN39)  AND IN
RECALLING THAT IT IS A CONSTITUTION "INTENDED TO ENDURE FOR AGES TO
COME," (FN40) WE ALSO REMEMBER THAT THE FOUNDERS WISELY PROVIDED THE
MEANS FOR THAT ENDURANCE:  CHANGES IN THE CONSTITUTION, WHEN THOUGHT
NECESSARY, ARE TO BE PROPOSED BY CONGRESS OR CONVENTIONS AND RATIFIED
BY THE STATES.  THE FOUNDERS GAVE NO SUCH AMENDING POWER TO THIS
COURT.  CF. EX PARTE VIRGINIA, 100 U.S. 339, 345-346 (1880).  OUR DUTY
IS SIMPLY TO INTERPRET THE CONSTITUTION, AND IN DOING SO THE TEST OF
CONSTITUTIONALITY IS NOT WHETHER A LAW IS OFFENSIVE TO OUR CONSCIENCE
OR TO THE "GOOD OLD COMMON LAW," (FN41) BUT WHETHER IT IS OFFENSIVE TO
THE CONSTITUTION.  CONFINING OURSELVES TO OUR CONSTITUTIONAL DUTY TO
CONSTRUE, NOT TO REWRITE OR AMEND, THE CONSTITUTION, WE BELIEVE THAT
ENFORCING ITS TRESPASS LAWS SO LONG AS IT DOES SO WITH IMPARTIALITY. 

THIS COURT HAS DONE MUCH IN CARRYING OUT ITS SOLEMN DUTY TO PROTECT
PEOPLE FROM UNLAWFUL DISCRIMINATION.  AND IT WILL, OF COURSE, CONTINUE
TO CARRY OUT THIS DUTY IN THE FUTURE AS IT HAS IN THE PAST.  (FN42)
BUT THE FOURTEENTH AMENDMENT OF ITSELF DOES NOT COMPEL EITHER A BLACK
MAN OR A WHITE MAN RUNNING HIS OWN PRIVATE BUSINESS TO TRADE WITH
ANYONE ELSE AGAINST HIS WILL.  WE DO NOT BELIEVE THAT SECTION 1 OF THE
FOURTEENTH AMENDMENT WAS WRITTEN OR DESIGNED TO INTERFERE WITH A
STOREKEEPER'S RIGHT TO CHOOSE HIS CUSTOMERS OR WITH A PROPERTY OWNER'S
RIGHT TO CHOOSE HIS SOCIAL OR BUSINESS ASSOCIATES, SO LONG AS HE DOES
NOT RUN COUNTER TO VALID STATE (FN43) OR FEDERAL REGULATION.   THE CASE
BEFORE US DOES NOT INVOLVE THE POWER OF THE CONGRESS TO PASS A LAW
COMPELLING PRIVATELY OWNED BUSINESSES TO REFRAIN FROM DISCRIMINATION ON
THE BASIS OF RACE AND TO TRADE WITH ALL IF THEY TRADE WITH ANY.  WE
EXPRESS NO VIEWS AS TO THE POWER OF CONGRESS, ACTING UNDER ONE OR
ANOTHER PROVISION OF THE CONSTITUTION, TO PREVENT RACIAL DISCRIMINATION
IN THE OPERATION OF PRIVATELY OWNED BUSINESSES, NOR UPON ANY PARTICULAR
FORM OF LEGISLATION TO THAT END.  OUR SOLE CONCLUSION IS THAT SECTION 1
OF THE FOURTEENTH AMENDMENT, STANDING ALONE, DOES NOT PROHIBIT
PRIVATELY OWNED RESTAURANTS FROM CHOOSING THEIR OWN CUSTOMERS.  IT DOES
NOT DESTROY WHAT HAS UNTIL VERY RECENTLY BEEN UNIVERSALLY RECOGNIZED IN
THIS COUNTRY AS THE UNCHALLENGED RIGHT OF A MAN WHO OWNS A BUSINESS TO
RUN THE BUSINESS IN HIS OWN WAY SO LONG AS SOME VALID REGULATORY
STATUTE DOES NOT TELL HIM TO DO OTHERWISE.  (FN44)

                 V. 

PETITIONERS, BUT NOT THE SOLICITOR GENERAL, CONTEND THAT THEIR
CONVICTIONS FOR TRESPASS DENY THEM THE RIGHT OF FREEDOM OF EXPRESSION
GUARANTEED BY THE CONSTITUTION.  THEY ARGUE THAT THEIR: 

"EXPRESSION (ASKING FOR SERVICE) WAS ENTIRELY APPROPRIATE TO THE TIME
AND PLACE AT WHICH IT OCCURRED.  THEY DID NOT SHOUT OR OBSTRUCT THE
CONDUCT OF BUSINESS.  THERE WERE NO SPEECHES, PICKET SIGNS, HANDBILLS
OR OTHER FORMS OF EXPRESSION IN THE STORE POSSIBLY INAPPROPRIATE TO THE
TIME AND PLACE.  RATHER THEY OFFERED TO PURCHASE FOOD IN A PLACE AND AT
A TIME SET ASIDE FOR SUCH TRANSACTIONS.  THEIR PROTEST DEMONSTRATION
WAS A PART OF THE 'FREE TRADE IN IDEAS' (ABRAMS V. UNITED STATES, 250
U.S. 616, 630, HOLMES, J., DISSENTING)  ... ." 

THEIR ARGUMENT COMES DOWN TO THIS:  THAT SINCE PETITIONERS DID NOT
SHOUT, OBSTRUCT HOOPER'S BUSINESS (WHICH THE RECORD REFUTES), MAKE
SPEECHES, OR DISPLAY PICKET SIGNS, HANDBILLS, OR OTHER MEANS OF
COMMUNICATION, THEY HAD A PERFECT CONSTITUTIONAL RIGHT TO ASSEMBLE AND
REMAIN IN THE RESTAURANT, OVER THE OWNER'S CONTINUING OBJECTIONS, FOR
THE PURPOSE OF EXPRESSING THEMSELVES BY LANGUAGE AND "DEMONSTRATIONS"
BESPEAKING THEIR HOSTILITY TO HOOPER'S REFUSAL TO SERVE NEGROES.  THIS
COURT'S PRIOR CASES DO NOT SUPPORT SUCH A PRIVILEGE GROWING OUT OF THE
CONSTITUTIONAL RIGHTS OF SPEECH AND ASSEMBLY.  UNQUESTIONABLY
PETITIONERS HAD A CONSTITUTIONAL RIGHT TO EXPRESS THESE VIEWS WHEREVER
THEY HAD AN UNQUESTIONED LEGAL RIGHT TO BE.  CF. MARSH V. ALABAMA,
SUPRA.  BUT THERE IS THE RUB IN THIS CASE.  THE CONTENTION THAT
PETITIONERS HAD A CONSTITUTIONAL RIGHT TO ENTER OR TO STAY ON HOOPER'S
PREMISES AGAINST HIS WILL BECAUSE, IF THERE, THEY WOULD HAVE HAD A
CONSTITUTIONAL RIGHT TO EXPRESS THEIR DESIRE TO HAVE RESTAURANT SERVICE
OVER HOOPER'S PROTEST, IS A BOOTSTRAP ARGUMENT.  THE RIGHT TO FREEDOM
OF EXPRESSION IS A RIGHT TO EXPRESS VIEWS - NOT A RIGHT TO FORCE OTHER
PEOPLE TO SUPPLY A PLATFORM OR A PULPIT.  IT IS ARGUED THAT THIS
SUPPOSED CONSTITUTIONAL RIGHT TO INVADE OTHER PEOPLE'S PROPERTY WOULD
NOT MEAN THAT A MAN'S HOME, HIS PRIVATE CLUB, OR HIS CHURCH COULD BE
FORCIBLY ENTERED OR USED AGAINST HIS WILL - ONLY HIS STORE OR PLACE OF
BUSINESS WHICH HE HAS HIMSELF "OPENED TO THE PUBLIC" BY SELLING GOODS
OR SERVICES FOR MONEY.  IN THE FIRST PLACE, THAT ARGUMENT ASSUMES THAT
HOOPER'S RESTAURANT HAD BEEN OPENED TO THE PUBLIC.  BUT THE WHOLE
QUARREL OF PETITIONERS WITH HOOPER WAS THAT INSTEAD OF BEING OPEN TO
ALL, THE RESTAURANT REFUSED SERVICE TO NEGROES.  FURTHERMORE,
LEGISLATIVE BODIES WITH POWER TO ACT COULD OF COURSE DRAW LINES LIKE
THIS, BUT IF THE CONSTITUTION ITSELF FIXES ITS OWN LINES, AS IS ARGUED,
LEGISLATIVE BODIES ARE POWERLESS TO CHANGE THEM, AND HOMEOWNERS,
CHURCHES, PRIVATE CLUBS, AND OTHER PROPERTY OWNERS WOULD HAVE TO AWAIT
CASE-BY-CASE DETERMINATION BY THIS COURT BEFORE THEY KNEW WHO HAD A
CONSTITUTIONAL RIGHT TO TRESPASS ON THEIR PROPERTY.  AND EVEN IF THE
SUPPOSED CONSTITUTIONAL RIGHT IS CONFINED TO PLACES WHERE GOODS AND
SERVICES ARE OFFERED FOR SALE, IT MUST BE REALIZED THAT SUCH A
CONSTITUTIONAL RULE WOULD APPLY TO ALL BUSINESSES AND PROFESSIONS
ALIKE.  A STATUTE CAN BE DRAFTED TO CREATE SUCH EXCEPTIONS AS
LEGISLATORS THINK WISE, BUT A CONSTITUTIONAL RULE COULD AS WELL BE
APPLIED TO THE SMALLEST BUSINESS AS TO THE LARGEST, TO THE MOST
PERSONAL PROFESSIONAL RELATIONSHIP AS TO THE MOST IMPERSONAL BUSINESS,
TO A FAMILY BUSINESS CONDUCTED ON A MAN'S FARM OR IN HIS HOME AS TO
BUSINESSES CARRIED ON ELSEWHERE. 

A GREAT PURPOSE OF FREEDOM OF SPEECH AND PRESS IS TO PROVIDE A FORUM
FOR SETTLEMENT OF ACRIMONIOUS DISPUTES PEACEABLY, WITHOUT RESORT TO
INTIMIDATION, FORCE, OR VIOLENCE.  THE EXPERIENCE OF AGES POINTS TO THE
INEXORABLE FACT THAT PEOPLE ARE FREQUENTLY STIRRED TO VIOLENCE WHEN
PROPERTY WHICH THE LAW RECOGNIZES AS THEIRS IS FORCIBLY INVADED OR
OCCUPIED BY OTHERS.  TRESPASS LAWS ARE BORN OF THIS EXPERIENCE.  THEY
HAVE BEEN, AND DOUBTLESS STILL ARE, IMPORTANT FEATURES OF ANY
GOVERNMENT DEDICATED, AS THIS COUNTRY IS, TO A RULE OF LAW.  WHATEVER
POWER IT MAY ALLOW THE STATES OR GRANT TO THE CONGRESS TO REGULATE THE
USE OF PRIVATE PROPERTY, THE CONSTITUTION DOES NOT CONFER UPON ANY
GROUP THE RIGHT TO SUBSTITUTE RULE BY FORCE FOR RULE BY LAW.  FORCE
LEADS TO VIOLENCE, VIOLENCE TO MOB CONFLICTS, AND THESE TO RULE BY THE
STRONGEST GROUPS WITH CONTROL OF THE MOST DEADLY WEAPONS.  OUR
CONSTITUTION, NOBLE WORK OF WISE MEN, WAS DESIGNED - ALL OF IT - TO
CHART A QUITE DIFFERENT COURSE:  TO "ESTABLISH JUSTICE, INSURE DOMESTIC
TRANQUILITY  ...  AND SECURE THE BLESSINGS OF LIBERTY TO OURSELVES AND
OUR POSTERITY."  AT TIMES THE RULE OF LAW SEEMS TOO SLOW TO SOME FOR
THE SETTLEMENT OF THEIR GRIEVANCES.  BUT IT IS THE PLAN OUR NATION HAS
CHOSEN TO PRESERVE BOTH "LIBERTY" AND EQUALITY FOR ALL.  ON THAT PLAN
WE HAVE PUT OUR TRUST AND STAKED OUR FUTURE.  THIS CONSTITUTIONAL RULE
OF LAW HAS SERVED US WELL.  MARYLAND'S TRESPASS LAW DOES NOT DEPART
FROM IT. NOR SHALL WE. 

WE WOULD AFFIRM. 

FN1  "ANY PERSON OR PERSONS WHO SHALL ENTER UPON OR CROSS OVER THE
LAND, PREMISES OR PRIVATE PROPERTY OF ANY PERSON OR PERSONS IN THIS
STATE AFTER HAVING BEEN DULY NOTIFIED BY THE OWNER OR HIS AGENT NOT TO
DO SO SHALL BE DEEMED GUILTY OF A MISDEMEANOR ...  ."  MD. CODE, ART.
27, SEC. 577. 

FN2  MR. HOOPER TESTIFIED THIS AS TO HIS REASONS FOR ADOPTING HIS
POLICY: 

"I SET AT THE TABLE WITH HIM AND TWO OTHER PEOPLE AND REASONED AND
TALKED TO HIM WHY MY POLICY WAS NOT YET ONE OF INTEGRATION AND TOLD HIM
THAT I HAD TWO HUNDRED EMPLOYEES AND HALF OF THEM WERE COLORED.  I
THOUGHT AS MUCH OF THEM AS I DID THE WHITE EMPLOYEES.  I INVITED THEM
BACK IN MY KITCHEN IF THEY'D LIKE TO GO BACK AND TALK TO THEM.  I
WANTED TO PROVE TO THEM IT WASN'T MY POLICY, MY PERSONAL PREJUDICE, WE
WERE NOT, THAT I HAD VALUABLE COLORED EMPLOYEES AND I THOUGHT JUST AS
MUCH OF THEM.  I TRIED TO REASON WITH THESE LEADERS, TOLD THEM THAT AS
LONG AS MY CUSTOMERS WERE DECIDING WHO THEY WANTED TO EAT WITH, I'M AT
THE MERCY OF MY CUSTOMERS.  I'M TRYING TO DO WHAT THEY WANT.  IF THEY
FAIL TO COME IN, THESE PEOPLE ARE NOT PAYING MY EXPENSES, AND MY
BILLS.  THEY DIDN'T WANT TO GO BACK AND TALK TO MY COLORED EMPLOYEES
BECAUSE EVERY ONE OF THEM ARE IN SYMPATHY WITH ME AND THAT IS WE'RE IN
SYMPATHY WITH WHAT THEIR OBJECTIVES ARE, WITH WHAT THEY ARE TRYING TO
ABOLISH  ...  ." 

FN3  227 MD. 302, 176 A.2D 771 (1962). 

FN4  374 U.S. 804, 805 (1963).  PROBABLE JURISDICTION WAS NOTED IN
ROBINSON V. FLORIDA, 374 U.S. 803 (1963), REV'D, ANTE, P. 153. 
CERTIORARI HAD ALREADY BEEN GRANTED IN GRIFFIN V. MARYLAND, 370 U.S.
935 (1962), REV'D, ANTE, P. 130. 

FN5  ORDINANCE NO. 1249, JUNE 8, 1962, ADDING SEC. 10A TO ART. 14A,
BALTIMORE CITY CODE (1950 ED.). 

FN6  MD. ACTS 1963, C. 227, ART. 49B MD. CODE SEC. 11 (ENACTED MARCH
29, 1963, EFFECTIVE JUNE 1, 1963).  A LATER ACCOMMODATIONS LAW, OF
STATEWIDE COVERAGE, WAS ENACTED, MD. ACTS 1964, SP. SESS., C. 29, SEC.
1, BUT WILL NOT TAKE EFFECT UNLESS APPROVED BY REFERENDUM. 

FN7  HAMM V. CITY OF ROCK HILL, 377 U.S. 988; LUPPER V. ARKANSAS, 377
U.S. 989.  THE SAME QUESTION WAS PRESENTED BUT IS NOT DECIDED IN SEVEN
OTHER CASES WHICH THE COURT TODAY DISPOSES OF IN VARIOUS WAYS.  SEE
DREWS V. MARYLAND, POST, P. 547; WILLIAMS V. NORTH CAROLINA, POST, P.
548; FOX V. NORTH CAROLINA, POST, P. 587; MITCHELL V. CITY OF
CHARLESTON, POST, P. 551; FORD V. TENNESSEE, 377 U.S. 994; GREEN V.
VIRGINIA, POST, P. 550; HARRIS V. VIRGINIA, POST, P. 552. 

FN8  WINTERS V. NEW YORK, 333 U.S. 507, 512 (1948); CANTWELL V.
CONNECTICUT, 310 U.S. 296, 307-308 (1940). 

FN9  SEE GARNER V. LOUISIANA, 368 U.S. 157, 185 (1961)(HARLAN, J.,
CONCURRING). 

FN10  SEE MARTIN V. CITY OF STRUTHERS, 319 U.S. 141, 147 AND N. 10
(1943). 

FN11  E.G., SEC. 5:  "THE CONGRESS SHALL HAVE POWER TO ENFORCE, BY
APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS ARTICLE." 

FN12  CITING CIVIL RIGHTS CASES, 109 U.S. 3 (1883); UNITED STATES V.
HARRIS, 106 U.S. 629 (1883); UNITED STATES V. CRUIKSHANK, 92 U.S. 542
(1876). 

FN13  SEE BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715
(1961). 

FN14  SEE SHELLEY V. KRAEMER, SUPRA, 334 U.S., AT 14-15 (1948),
PARTICULARLY NOTES 13 AND 14. 

FN15  THE USE IN THIS COUNTRY OF TRESPASS LAWS, BOTH CIVIL AND
CRIMINAL, TO ALLOW PEOPLE TO SUBSTITUTE THE PROCESSES OF THE LAW FOR
FORCE AND VIOLENCE HAS AN ANCIENT ORIGIN IN ENGLAND.  LAND LAW WAS ONCE
BOUND UP WITH THE NOTION OF "SEISIN," A TERM CONNOTING "PEACE AND
QUIET."  2 POLLOCK AND MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE
TIME OF EDWARD I (2D ED. 1909), 29, 30.  AS COKE PUT IT, "HE WHO IS IN
POSSESSION MAY SIT DOWN IN REST AND QUIET  ...  ."  6 CO. REP. 57B.  TO
VINDICATE THIS RIGHT TO UNDISTURBED USE AND ENJOYMENT OF ONE'S
PROPERTY, THE LAW OF TRESPASS CAME INTO BEING.  THE LEADING HISTORIANS
OF THE EARLY ENGLISH LAW HAVE OBSERVED THE CONSTANT INTERPLAY BETWEEN
"OUR LAW OF POSSESSION AND TRESPASS" AND HAVE CONCLUDED THAT SINCE "TO
ALLOW MEN TO MAKE FORCIBLE ENTRIES ON LAND  ...  IS TO INVITE
VIOLENCE," THE TRESPASS LAWS' PROTECTION OF POSSESSION "IS A
PROHIBITION OF SELF-HELP IN THE INTEREST OF PUBLIC ORDER."  2 POLLOCK
AND MAITLAND, SUPRA, AT 31, 41. 

FN16  ON THIS SUBJECT THE SOLICITOR GENERAL IN HIS BRIEF SAYS:  "THE
SERIES OF COVENANTS BECOMES IN EFFECT A LOCAL ZONING ORDINANCE BINDING
THOSE IN THE AREA SUBJECT TO THE RESTRICTION WITHOUT THEIR CONSENT. 
CF. BUCHANAN V. WARLEY, 245 U.S. 60.  WHERE THE STATE HAD DELEGATED TO
PRIVATE PERSONS A POWER SO SIMILAR TO LAW-MAKING AUTHORITY, ITS
EXERCISE MAY FAIRLY BE HELD SUBJECT TO CONSTITUTIONAL RESTRICTIONS." 

FN17  42 U.S.C. SEC. 1982, DERIVING FROM 14 STAT. 27, SEC. 1 (1866),
PROVIDES:  "ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME
RIGHT, IN EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS
THEREOF TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND
PERSONAL PROPERTY."  42 U.S.C. SEC. 1981, DERIVING FROM 16 STAT. 144,
SEC. 16 (1870), PROVIDES:  "ALL PERSONS WITHIN THE JURISDICTION OF THE
UNITED STATES SHALL HAVE THE SAME RIGHT  ...  TO MAKE AND ENFORCE
CONTRACTS  ...  AS IS ENJOYED BY WHITE CITIZENS  ...  ."  THE
CONSTITUTIONALITY OF THESE STATUTES WAS RECOGNIZED IN VIRGINIA V.
RIVES, 100 U.S. 313, 317-318 (1880), AND IN BUCHANAN V. WARLEY, 245
U.S. 60, 79-80 (1917). 

FN18  HARMON V. TYLER, 273 U.S. 668 (1927); RICHMOND V. DEANS, 281
U.S. 704 (1930). 

FN19  COMPARE ROBINSON V. FLORIDA, ANTE, P. 153; PETERSON V. CITY OF
GREENVILLE, 373 U.S. 244 (1963); LOMBARD V. LOUISIANA, 373 U.S. 267
(1963). 

FN20  COMPARE BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715
(1961). 

FN21  IN FACT, AS POINTED OUT IN PART I OF THIS OPINION, MARYLAND HAS
RECENTLY PASSED A LAW PROHIBITING RACIAL DISCRIMINATION IN RESTAURANTS
IN BALTIMORE AND SOME OTHER PARTS OF THE STATE, AND BALTIMORE HAS
ENACTED A SIMILAR ORDINANCE.  STILL ANOTHER MARYLAND ANTIDISCRIMINATION
LAW, OF STATEWIDE APPLICATION, HAS BEEN ENACTED BUT IS SUBJECT TO
REFERENDUM.  SEE NOTE 6, SUPRA. 

FN22  CONG. GLOBE, 38TH CONG., 1ST SESS., 1159 (1864)(SENATOR
MORRILL). 

FN23  ID., AT 1157-1158 (SENATOR SAULSBURY). 

FN24  ID., AT 1158.  IN RESPONSE TO A QUESTION PUT BY SENATOR CARLILE
OF VIRGINIA, SUMNER STATED THAT IT HAD TAKEN A STATUTE TO ASSURE
NEGROES EQUAL TREATMENT IN MASSACHUSETTS: 

"THAT WHOLE QUESTION, AFTER MUCH DISCUSSION IN MASSACHUSETTS, HAS
BEEN SETTLED BY LEGISLATION, AND THE RIGHTS OF EVERY COLORED PERSON ARE
PLACED ON AN EQUALITY WITH THOSE OF WHITE PERSONS.  THEY HAVE THE SAME
RIGHT WITH WHITE PERSONS TO RIDE IN EVERY PUBLIC CONVEYANCE IN THE
COMMONWEALTH.  IT WAS DONE BY POSITIVE LEGISLATION TWENTY-ONE YEARS
AGO."  IBID. 

A FEW MINUTES LATER, SENATOR DAVIS OF KENTUCKY ASKED SUMNER DIRECTLY
IF IT WAS NOT TRUE THAT WHAT TREATMENT WAS EXTENDED TO COLORED PEOPLE
BY "PUBLIC HOTELS" INCORPORATED BY THE COMMONWEALTH OF MASSACHUSETTS
WAS LEFT TO "THE JUDGMENT AND DISCRETION OF THE PROPRIETORS AND
MANAGERS OF THE HOTELS."  SUMNER, WHO HAD ANSWERED IMMEDIATELY
PRECEDING STATEMENTS BY DAVIS, LEFT THIS ONE UNCHALLENGED.  ID., AT
1161. 

FN25  A NUMBER OF THE REMARKS QUOTED AS HAVING BEEN MADE IN RELATION
TO NEGROES' ACCESS TO PRIVATELY OWNED ACCOMMODATIONS IN FACT DEALT WITH
OTHER QUESTIONS ALTOGETHER.  FOR EXAMPLE, SENATOR TRUMBULL OF ILLINOIS
IS QUOTED, ANTE, P. 293, AS HAVING SAID THAT THE NEGRO SHOULD HAVE THE
RIGHT "TO GO WHERE HE PLEASES."  IT IS IMPLIED THAT SUCH REMARKS CAST
LIGHT ON THE QUESTION OF ACCESS TO PRIVATELY OWNED ACCOMMODATIONS.  IN
FACT, THE STATEMENT, MADE IN THE COURSE OF A DEBATE ON A BILL (S. 60)
TO ENLARGE THE POWERS OF THE FREEDMEN'S BUREAU, RELATED SOLELY TO BLACK
LAWS THAT HAD BEEN ENACTED IN SOME OF THE SOUTHERN STATES.  TRUMBULL
ATTACKED THE "SLAVE CODES" WHICH "PREVENTED THE COLORED MAN GOING FROM
HOME," AND HE URGED THAT CONGRESS NULLIFY ALL LAWS WHICH WOULD NOT
PERMIT THE COLORED MAN "TO GO WHERE HE PLEASES."  CONG. GLOBE, 39TH
CONG., 1ST SESS., 322 (1866).  SIMILARLY, IN ANOTHER DEBATE, ON A BILL
(S. 9) FOR THE PROTECTION OF FREEDMEN, SENATOR WILSON OF MASSACHUSETTS
HAD JUST TOLD THE SENATE ABOUT SUCH LAWS AS THAT OF MISSISSIPPI WHICH
PROVIDED THAT ANY FREEDMAN WHO QUIT HIS JOB "WITHOUT GOOD CAUSE" DURING
THE TERM OF HIS EMPLOYMENT SHOULD, UPON AFFIDAVIT OF THE EMPLOYER, BE
ARRESTED AND CARRIED BACK TO THE EMPLOYER.  SPEAKING OF SUCH RELICS OF
SLAVERY, WILSON SAID THAT FREEDMEN WERE "AS FREE AS I AM, TO WORK WHEN
THEY PLEASE, TO PLAY WHEN THEY PLEASE, TO GO WHERE THEY PLEASE  ...
."  ID., AT 41.  SENATOR TRUMBULL THEN JOINED THE DEBATE, WONDERING IF
S. 9 WENT FAR ENOUGH AND SAYING THAT TO PREVENT STATES "FROM ENSLAVING,
UNDER ANY PRETENSE," THE FREEDMEN, HE MIGHT INTRODUCE HIS OWN BILL TO
ENSURE THE RIGHT OF FREEDMEN TO "GO AND COME WHEN THEY PLEASE."  ID.,
AT 43.  IT WAS TO THE BLACK LAWS - AND NOT ANYTHING REMOTELY TO DO WITH
ACCOMMODATIONS - THAT WILSON, TRUMBULL, AND OTHERS ADDRESSED THEIR
STATEMENTS.  MOREOVER, IN THE DEBATE ON S. 9, SENATOR TRUMBULL
EXPRESSLY REFERRED TO THE THIRTEENTH AMENDMENT AS THE CONSTITUTIONAL
BASIS BOTH FOR THE PENDING BILL AND FOR HIS OWN BILL, IBID., SHOWING
THAT THE SENATE'S CONCERN WAS WITH STATE LAWS RESTRICTING THE MOVEMENT
OF, AND IN EFFECT RE-ENSLAVING, COLORED PEOPLE. 

FN26  CONG. GLOBE, 39TH CONG., 1ST SESS., 474-476 (1866)(TRUMBULL OF
ILLINOIS), 599 (TRUMBULL), 606 (TRUMBULL), 1117 (WILSON OF IOWA), 1151
(THAYER OF PENNSYLVANIA), 1154 (THAYER), 1157 (THORNTON OF MINNESOTA),
1159 (WINDOM OF MINNESOTA). 

FN27  SEE ID., AT 211-212. 

FN28  ID., AT 1151 (THAYER). 

FN29  CONG. GLOBE, 42D CONG., 2D SESS., 381-383 (1872). 

FN30  18 STAT. 335. 

FN31  CONG. GLOBE, 39TH CONG., 1ST SESS., 2459, 2462, 2465, 2467,
2538 (1866). 

FN32  CONG. GLOBE, 38TH CONG., 1ST SESS., 839 (1864)(DEBATE ON BILL
TO REPEAL LAW PROHIBITING COLORED PERSONS FROM CARRYING THE MAIL);
CONG. GLOBE, 38TH CONG., 1ST SESS., 1156-1157 (1864)(DEBATE ON AMENDING
THE CHARTER OF THE METROPOLITAN RAILROAD CO.); CONG. GLOBE, 39TH CONG.,
1ST SESS., 322, 541, 916, 936 (1866)(DEBATE ON BILL TO AMEND THE
FREEDMEN'S BUREAU ACT, S. 60); CONG. GLOBE, 39TH CONG., 1ST SESS., 474
476, 599, 606, 1117-1118, 1151, 1154, 1157, 1159, 1263 (1866)(DEBATE ON
THE CIVIL RIGHTS ACT OF 1866, S. 61); CONG. GLOBE, 39TH CONG., 1ST
SESS., 41, 111 (1866)(DEBATE ON BILL FOR THE PROTECTION OF FREEDMEN
FROM BLACK CODES, S. 9); CONG. GLOBE, 42D CONG., 2D SESS., 381-383
(1872)(DEBATE ON SUMNER'S AMENDMENT TO BILL REMOVING POLITICAL AND
CIVIL DISABILITIES ON EX-CONFEDERATES, H.R. 380); 2 CONG. REC. 4081
4082 (1874)(DEBATE ON BILL TO GIVE ALL CITIZENS EQUAL ENJOYMENT OF
INNS, ETC., S. 1).  ONE CITED PASSAGE, CONG.  GLOBE, 39TH CONG., 1ST
SESS., 684 (1866), CONSISTS OF REMARKS MADE IN DEBATE ON A PROPOSED
CONSTITUTIONAL AMENDMENT HAVING TO DO WITH APPORTIONMENT OF
REPRESENTATION, H.R. 51. 

FN33  CONG. GLOBE, 42D CONG., 2D SESS., 383 (1872). 

FN34  2 CONG. REC. 4081 (1874). 

FN35  DONNELL V. STATE, 48 MISS.  661 (1873); COGER V. NORTH WEST. 
PACKET CO., 37 IOWA 145 (1873); FERGUSON V. GIES, 82 MICH. 358, 46 N.W.
718 (1890).  THE MISSISSIPPI CASE DOES CONTAIN THIS OBSERVATION
PERTINENT TO A COURT'S DUTY TO CONFINE ITSELF TO DECIDING CASES AND
INTERPRETING CONSTITUTIONS AND STATUTES AND TO LEAVE THE LEGISLATING TO
LEGISLATURES: 

"EVENTS OF SUCH VAST MAGNITUDE AND INFLUENCE NOW AND HEREAFTER, HAVE
GONE INTO HISTORY WITHIN THE LAST TEN YEARS, THAT THE PUBLIC MIND IS
NOT YET QUITE PREPARED TO CONSIDER THEM CALMLY AND DISPASSIONATELY.  TO
THE JUDICIARY, WHICH OUGHT AT ALL TIMES TO BE CALM, DELIBERATE AND
FIRM, ESPECIALLY SO WHEN THE PUBLIC THOUGHT AND SENTIMENT ARE AT ALL
EXCITED BEYOND THE NORMAL TONE, IS COMMITTED THE HIGH TRUST OF
DECLARING WHAT ARE THE RULES OF CONDUCT AND PROPRIETY PRESCRIBED BY THE
SUPREME AUTHORITY, AND WHAT ARE THE RIGHTS OF INDIVIDUALS UNDER THEM. 
AS TO THE POLICY OF LEGISLATION, THE JUDICIARY HAVE NOTHING TO DO.
THAT IS WISELY LEFT WITH THE LAW-MAKING DEPARTMENT OF THE GOVERNMENT." 
48 MISS., AT 675. 

FN36  THE ATTORNEY GENERAL OF MISSISSIPPI IS QUOTED AS HAVING ARGUED
IN DONNELL V. STATE, 48 MISS.  661 (1873), THAT THE MISSISSIPPI
LEGISLATURE HAD "SOUGHT, BY THIS ANTIDISCRIMINATION ACT, TO RENDER ANY
INTERFERENCE BY CONGRESS UNNECESSARY."  ANTE, P. 307, N. 25.  THIS VERY
STATEMENT SHOWS THAT THE MISSISSIPPI ATTORNEY GENERAL THOUGHT IN 1873,
AS WE BELIEVE TODAY, THAT THE FOURTEENTH AMENDMENT DID NOT OF ITSELF
GUARANTEE ACCESS TO PRIVATELY OWNED FACILITIES AND THAT IT TOOK
LEGISLATION, SUCH AS THAT OF MISSISSIPPI, TO GUARANTEE SUCH ACCESS. 
FN37  BROTHER GOLDBERG'S OPINION IN THIS CASE RELIES ON MUNN V.
ILLINOIS, 94 U.S. 113 (1877), WHICH DISCUSSED THE COMMON-LAW RULE THAT
"WHEN PRIVATE PROPERTY IS DEVOTED TO A PUBLIC USE, IT IS SUBJECT TO
PUBLIC REGULATION."  ID., AT 130.  THIS STATEMENT IN MUNN RELATED, OF
COURSE, TO THE EXTENT TO WHICH A LEGISLATURE CONSTITUTIONALLY CAN
REGULATE PRIVATE PROPERTY.  MUNN THEREFORE IS NOT REMOTELY RELEVANT
HERE, FOR IN THIS CASE THE PROBLEM IS, NOT WHAT LEGISLATURES CAN DO,
BUT RATHER WHAT THE CONSTITUTION ITSELF DOES.  AND IN FACT THIS COURT
SOME YEARS AGO REJECTED THE NOTION THAT A STATE MUST DEPEND UPON SOME
RATIONALIZATION SUCH AS "AFFECTED WITH A PUBLIC INTEREST" IN ORDER FOR
LEGISLATURES TO REGULATE PRIVATE BUSINESSES.  SEE NEBBIA V. NEW YORK,
291 U.S. 502 (1934).    FN38  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 407
(1819). 

FN39  COHENS V. VIRGINIA, 6 WHEAT.  264, 377 (1821). 

FN40  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 415 (1819). 

FN41  THAT THE ENGLISH COMMON LAW WAS NOT THOUGHT ALTOGETHER "GOOD"
IN THIS COUNTRY IS SUGGESTED BY THE COMPLAINTS OF THE DECLARATION OF
INDEPENDENCE, BY THE VIRGINIA AND KENTUCKY RESOLUTIONS, AND BY
OBSERVATIONS OF THOMAS JEFFERSON.  THE JEFFERSONIAN CYCLOPEDIA 163
(FOLEY ED. 1900). 

FN42  IT IS SAID THAT OUR HOLDING "DOES NOT DO JUSTICE" TO A
CONSTITUTION WHICH IS COLOR BLIND AND TO THIS COURT'S DECISION IN BROWN
V. BOARD OF EDUCATION, 347 U.S. 483 (1954).  ANTE, PP. 287-288.  WE
AGREE, OF COURSE, THAT THE FOURTEENTH AMENDMENT IS "COLOR BLIND," IN
THE SENSE THAT IT OUTLAWS ALL STATE LAWS WHICH DISCRIMINATE MERELY ON
ACCOUNT OF COLOR.  THIS WAS THE BASIS UPON WHICH THE COURT STRUCK DOWN
STATE LAWS REQUIRING SCHOOL SEGREGATION IN BROWN V. BOARD OF EDUCATION,
SUPRA. BUT THERE WAS NO POSSIBLE INTIMATION IN BROWN OR IN ANY OTHER OF
OUR PAST DECISIONS THAT THIS COURT WOULD CONSTRUE THE FOURTEENTH
AMENDMENT AS REQUIRING RESTAURANT OWNERS TO SERVE ALL RACES.  NOR HAS
THERE BEEN ANY INTIMATION THAT THE COURT SHOULD OR WOULD EXPAND THE
FOURTEENTH AMENDMENT BECAUSE OF A BELIEF THAT IT DOES NOT IN OUR
JUDGMENT GO FAR ENOUGH. 

FN43  CF. COLORADO ANTI-DISCRIMINATION COMM'N V. CONTINENTAL AIR
LINES, INC., 372 U.S. 714 (1963). 

FN44  THE OPINION OF OUR BROTHER GOLDBERG CHARACTERIZES OUR ARGUMENT
AS BEING THAT THE CONSTITUTION "PERMITS" NEGROES TO BE DENIED ACCESS TO
RESTAURANTS ON ACCOUNT OF THEIR COLOR.  WE FEAR THAT THIS STATEMENT
MIGHT MISLEAD SOME READERS.  PRECISELY PUT, OUR POSITION IS THAT THE
CONSTITUTION OF ITSELF DOES NOT PROHIBIT DISCRIMINATION BY THOSE WHO
SELL GOODS AND SERVICES.  THERE IS OF COURSE A CRUCIAL DIFFERENCE
BETWEEN THE ARGUMENT - WHICH WE DO MAKE - THAT THE CONSTITUTION ITSELF
DOES NOT PROHIBIT PRIVATE SELLERS OF GOODS OR SERVICES FROM CHOOSING
THEIR OWN CUSTOMERS, AND THE ARGUMENT - WHICH WE DO NOT MAKE - THAT THE
CONSTITUTION AFFIRMATIVELY CREATES A RIGHT TO DISCRIMINATE WHICH
NEITHER STATE NOR FEDERAL LEGISLATION COULD IMPAIR. 
..END :





BOUIE V. CITY OF COLUMBIA 378 U.S. 347 


NO. 10.  ARGUED OCTOBER 14-15, 1963.  - DECIDED JUNE 22, 1964.  - 239
S.C. 570, 124 S.E.2D 332, REVERSED. 


PETITIONERS, NEGRO "SIT-IN" DEMONSTRATORS, ENTERED A DRUGSTORE WHICH
EXTENDED SERVICE TO NEGROES AT ALL DEPARTMENTS EXCEPT THE RESTAURANT
DEPARTMENT, AND TOOK SEATS IN A RESTAURANT BOOTH WITHOUT HAVING
RECEIVED ANY NOTICE THAT THAT DEPARTMENT WAS BARRED TO NEGROES.  THEY
REFUSED TO LEAVE UPON BEING ASKED TO DO SO, AND WERE CONVICTED OF
VIOLATING A SOUTH CAROLINA CRIMINAL TRESPASS STATUTE PROSCRIBING ENTRY
UPON THE LANDS OF ANOTHER AFTER NOTICE PROHIBITING SUCH ENTRY.  THEIR
CONVICTIONS WERE AFFIRMED BY THE STATE SUPREME COURT ON THE BASIS OF A
JUDICIAL CONSTRUCTION OF THE STATUTE, ANNOUNCED AFTER THE INCIDENT
GIVING RISE TO THESE CONVICTIONS, WHICH CONSTRUED THE STATUTE AS
APPLICABLE TO THE ACT OF REMAINING ON THE PREMISES OF ANOTHER AFTER
RECEIVING NOTICE TO LEAVE.  HELD: THE STATE SUPREME COURT, IN GIVING
RETROACTIVE APPLICATION TO ITS NEW CONSTRUCTION OF THE STATUTE, HAS
DEPRIVED PETITIONERS OF THEIR RIGHT TO FAIR WARNING OF A CRIMINAL
PROHIBITION, AND THUS HAS VIOLATED THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 348-363. 

BOUIE ET AL. V. CITY OF COLUMBIA. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE AROSE OUT OF A "SIT-IN" DEMONSTRATION AT ECKERD'S DRUG
STORE IN COLUMBIA, SOUTH CAROLINA.  IN ADDITION TO A LUNCH COUNTER,
ECKERD'S MAINTAINED SEVERAL OTHER DEPARTMENTS, INCLUDING THOSE FOR
RETAIL DRUGS, COSMETICS, AND PRESCRIPTIONS.  NEGROES AND WHITES WERE
INVITED TO PURCHASE AND WERE SERVED ALIKE IN ALL DEPARTMENTS OF THE
STORE WITH THE EXCEPTION OF THE RESTAURANT DEPARTMENT, WHICH WAS
RESERVED FOR WHITES.  THERE WAS NO EVIDENCE THAT ANY SIGNS OR NOTICES
WERE POSTED INDICATING THAT NEGROES WOULD NOT BE SERVED IN THAT
DEPARTMENT. 

ON MARCH 14, 1960, THE PETITIONERS, TWO NEGRO COLLEGE STUDENTS, TOOK
SEATS IN A BOOTH IN THE RESTAURANT DEPARTMENT AT ECKERD'S AND WAITED TO
BE SERVED.  NO ONE SPOKE TO THEM OR APPROACHED THEM TO TAKE THEIR
ORDERS FOR FOOD.  AFTER THEY WERE SEATED, AN EMPLOYEE OF THE STORE PUT
UP A CHAIN WITH A "NO TRESPASSING" SIGN ATTACHED.  PETITIONERS
CONTINUED TO SIT QUIETLY IN THE BOOTH.  THE STORE MANAGER THEN CALLED
THE CITY POLICE DEPARTMENT AND ASKED THE POLICE TO COME AND REMOVE
PETITIONERS.  AFTER THE POLICE ARRIVED AT THE STORE THE MANAGER TWICE
ASKED PETITIONERS TO LEAVE.  THEY DID NOT DO SO.  THE ASSISTANT CHIEF
OF POLICE THEN ASKED THEM TO LEAVE.  WHEN PETITIONER BOUIE ASKED "FOR
WHAT?"  THE ASSISTANT CHIEF REPLIED:  "BECAUSE IT'S A BREACH OF THE
PEACE  ...  ."  PETITIONERS STILL REFUSED TO LEAVE, AND WERE THEN
ARRESTED.  THEY WERE CHARGED WITH BREACH OF THE PEACE IN VIOLATION OF
SEC. 15-909, CODE OF LAWS OF SOUTH CAROLINA, 1952, BUT WERE NOT
CONVICTED.  PETITIONER BOUIE WAS ALSO CHARGED WITH RESISTING ARREST,
AND WAS CONVICTED, BUT THE CONVICTION WAS REVERSED BY THE STATE SUPREME
COURT FOR INSUFFICIENCY OF EVIDENCE.  BOTH PETITIONERS WERE ALSO
CHARGED WITH CRIMINAL TRESPASS IN VIOLATION OF SEC. 16-386 OF THE SOUTH
CAROLINA CODE OF 1952 (1960 CUM. SUPP.); (FN1) ON THIS CHARGE THEY WERE
CONVICTED, AND THEIR CONVICTIONS WERE AFFIRMED BY THE STATE SUPREME
COURT OVER OBJECTIONS BASED UPON THE DUE PROCESS AND EQUAL PROECTION
CLAUSES OF THE FOURTEENTH AMENDMENT.  239 S.C. 570, 124 S.E.2D 332.  WE
GRANTED CERTIORARI TO REVIEW THE JUDGMENTS AFFIRMING THESE TRESPASS
CONVICTIONS.  374 U.S. 805. 

WE DO NOT REACH THE QUESTION PRESENTED UNDER THE EQUAL PROTECTION
CLAUSE, FOR WE FIND MERIT IN PETITIONERS' CONTENTION UNDER THE DUE
PROCESS CLAUSE AND REVERSE THE JUDGMENTS ON THAT GROUND. 

PETITIONERS CLAIM THAT THEY WERE DENIED DUE PROCESS OF LAW EITHER
BECAUSE THEIR CONVICTIONS UNDER THE TRESPASS STATUTE WERE BASED ON NO
EVIDENCE TO SUPPORT THE CHARGE, SEE THOMPSON V. LOUISVILLE, 362 U.S.
199, OR BECAUSE THE STATUTE FAILED TO AFFORD FAIR WARNING THAT THE
CONDUCT FOR WHICH THEY HAVE NOW BEEN CONVICTED HAD BEEN MADE A CRIME. 
THE TERMS OF THE STATUTE DEFINE THE PROHIBITED CONDUCT AS "ENTRY UPON
THE LANDS OF ANOTHER  ...  AFTER NOTICE FROM THE OWNER OR TENANT
PROHIBITING SUCH ENTRY  ...  ."  SEE NOTE 1, SUPRA.  PETITIONERS
EMPHASIZE THE CONCEDED FACT THAT THEY DID NOT COMMIT SUCH CONDUCT; THEY
RECEIVED NO "NOTICE ...  PROHIBITING SUCH ENTRY" EITHER BEFORE THEY
ENTERED ECKERD'S DRUG STORE (WHERE IN FACT THEY WERE INVITED TO ENTER)
OR BEFORE THEY ENTERED THE RESTAURANT DEPARTMENT OF THE STORE AND
SEATED THEMSELVES IN THE BOOTH.  PETITIONERS THUS ARGUE THAT, UNDER THE
STATUTE AS WRITTEN, THEIR CONVICTIONS WOULD HAVE TO BE REVERSED FOR
WANT OF EVIDENCE UNDER THE THOMPSON CASE.  THE ARGUMENT IS PERSUASIVE
BUT BESIDE THE POINT, FOR THE CASE IN ITS PRESENT POSTURE DOES NOT
INVOLVE THE STATUTE "AS WRITTEN."  THE SOUTH CAROLINA SUPREME COURT, IN
AFFIRMING PETITIONERS' CONVICTIONS, CONSTRUED THE STATUTE TO COVER NOT
ONLY THE ACT OF ENTRY ON THE PREMISES OF ANOTHER AFTER RECEIVING NOTICE
NOT TO ENTER, BUT ALSO THE ACT OF REMAINING ON THE PREMISES OF ANOTHER
AFTER RECEIVING NOTICE TO LEAVE.  (FN2)  UNDER THE STATUTE AS SO
CONSTRUED, IT IS CLEAR THAT THERE WAS EVIDENCE TO SUPPORT PETITIONERS'
CONVICTIONS, FOR THEY CONCEDEDLY REMAINED IN THE LUNCH COUNTER BOOTH
AFTER BEING ASKED TO LEAVE.  PETITIONERS CONTEND, HOWEVER, THAT BY
APPLYING SUCH A CONSTRUCTION OF THE STATUTE TO AFFIRM THEIR CONVICTIONS
IN THIS CASE, THE STATE HAS PUNISHED THEM FOR CONDUCT THAT WAS NOT
CRIMINAL AT THE TIME THEY COMMITTED IT, AND HENCE HAS VIOLATED THE
REQUIREMENT OF THE DUE PROCESS CLAUSE THAT A CRIMINAL STATUTE GIVE FAIR
WARNING OF THE CONDUCT WHICH IT PROHIBITS.  WE AGREE WITH THIS
CONTENTION. 

THE BASIC PRINCIPLE THAT A CRIMINAL STATUTE MUST GIVE FAIR WARNING OF
THE CONDUCT THAT IT MAKES A CRIME HAS OFTEN BEEN RECOGNIZED BY THIS
COURT.  AS WAS SAID IN UNITED STATES V. HARRISS, 347 U.S. 612, 617, 

"THE CONSTITUTIONAL REQUIREMENT OF DEFINITENESS IS VIOLATED BY A
CRIMINAL STATUTE THAT FAILS TO GIVE A PERSON OF ORDINARY INTELLIGENCE
FAIR NOTICE THAT HIS CONTEMPLATED CONDUCT IS FORBIDDEN BY THE STATUTE. 
THE UNDERLYING PRINCIPLE IS THAT NO MAN SHALL BE HELD CRIMINALLY
RESPONSIBLE FOR CONDUCT WHICH HE COULD NOT RESAONABLY UNDERSTAND TO BE
PROSCRIBED." 

THUS WE HAVE STRUCK DOWN A STATE CRIMINAL STATUTE UNDER THE DUE
PROCESS CLAUSE WHERE IT WAS NOT "SUFFICIENTLY EXPLICIT TO INFORM THOSE
WHO ARE SUBJECT TO IT WHAT CONDUCT ON THEIR PART WILL RENDER THEM
LIABLE TO ITS PENALTIES."  CONNALLY V. GENERAL CONST. CO., 269 U.S.
385, 391.  WE HAVE RECOGNIZED IN SUCH CASES 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," IBID., AND THAT "NO ONE MAY BE REQUIRED AT PERIL OF
LIFE, LIBERTY OR PROPERTY TO SPECULATE AS TO THE MEANING OF PENAL
STATUTES.  ALL ARE ENTITLED TO BE INFORMED AS TO WHAT THE STATE
COMMANDS OR FORBIDS."  LANZETTA V. NEW JERSEY, 306 U.S. 451, 453. 
(FN3) 

IT IS TRUE THAT IN THE CONNALLY AND LANZETTA CASES, AND IN OTHER
TYPICAL APPLICATIONS OF THE PRINCIPLE, THE UNCERTAINTY AS TO THE
STATUTE'S PROHIBITION RESULTED FROM VAGUE OR OVERBROAD LANGUAGE IN THE
STATUTE ITSELF, AND THE COURT CONCLUDED THAT THE STATUTE WAS "VOID FOR
VAGUENESS."  THE INSTANT CASE SEEMS DISTINGUISHABLE, SINCE ON ITS FACE
THE LANGUAGE OF SEC. 16-386 OF THE SOUTH CAROLINA CODE WAS ADMIRABLY
NARROW AND PRECISE; THE STATUTE APPLIED ONLY TO "ENTRY UPON THE LANDS
OF ANOTHER  ...  AFTER NOTICE ...  PROHIBITING SUCH ENTRY  ...  ."  THE
THRUST OF THE DISTINCTION, HOWEVER, IS TO PRODUCE A POTENTIALLY GREATER
DEPRIVATION OF THE RIGHT TO FAIR NOTICE IN THIS SORT OF CASE, WHERE THE
CLAIM IS THAT A STATUTE PRECISE ON ITS FACE HAS BEEN UNFORESEEABLY AND
RETROACTIVELY EXPANDED BY JUDICIAL CONSTRUCTION, THAN IN THE TYPICAL
"VOID FOR VAGUENESS" SITUATION.  WHEN A STATUTE ON ITS FACE IS VAGUE OR
OVERBROAD, IT AT LEAST GIVES A POTENTIAL DEFENDANT SOME NOTICE, BY
VIRTUE OF THIS VERY CHARACTERISTIC, THAT A QUESTION MAY ARISE AS TO ITS
COVERAGE, AND THAT IT MAY BE HELD TO COVER HIS CONTEMPLATED CONDUCT. 
WHEN A STATUTE ON ITS FACE IS NARROW AND PRECISE, HOWEVER, IT LULLS THE
POTENTIAL DEFENDANT INTO A FALSE SENSE OF SECURITY, GIVING HIM NO
REASON EVEN TO SUSPECT THAT CONDUCT CLEARLY OUTSIDE THE SCOPE OF THE
STATUTE AS WRITTEN WILL BE RETROACTIVELY BROUGHT WITHIN IT BY AN ACT OF
JUDICIAL CONSTRUCTION.  IF THE FOURTEENTH AMENDMENT IS VIOLATED WHEN A
PERSON IS REQUIRED "TO SPECULATE AS TO THE MEANING OF PENAL STATUTES,"
AS IN LANZETTA, OR TO "GUESS AT THE STATUTE'S MEANING AND DIFFER AS TO
ITS APPLICATION," AS IN CONNALLY, THE VIOLATION IS THAT MUCH GREATER
WHEN, BECAUSE THE UNCERTAINTY AS TO THE STATUTE'S MEANING IS ITSELF NOT
REVEALED UNTIL THE COURT'S DECISION, A PERSON IS NOT EVEN AFFORDED AN
OPPORTUNITY TO ENGAGE IN SUCH SPECULATION BEFORE CONMITTING THE ACT IN
QUESTION. 

THERE CAN BE NO DOUBT THAT A DEPRIVATION OF THE RIGHT OF FAIR WARNING
CAN RESULT NOT ONLY FROM VAGUE STATUTORY LANGUAGE BUT ALSO FROM AN
UNFORESEEABLE AND RETROACTIVE JUDICIAL EXPANSION OF NARROW AND PRECISE
STATUTORY LANGUAGE.  AS THE COURT RECOGNIZED IN PIERCE V. UNITED
STATES, 314 U.S. 306, 311, "JUDICIAL ENLARGEMENT OF A CRIMINAL ACT BY
INTERPRETATION IS AT WAR WITH A FUNDAMENTAL CONCEPT OF THE COMMON LAW
THAT CRIMES MUST BE DEFINED WITH APPROPRIATE DEFINITENESS."  EVEN WHERE
VAGUE STATUTES ARE CONCERNED, IT HAS BEEN POINTED OUT THAT THE VICE IN
SUCH AN ENACTMENT CANNOT "BE CURED IN A GIVEN CASE BY A CONSTRUCTION IN
THAT VERY CASE PLACING VALID LIMITS ON THE STATUTE," FOR: 

"THE OBJECTION OF VAGUENESS IS TWOFOLD:  INADEQUATE GUIDANCE TO THE
INDIVIDUAL WHOSE CONDUCT IS REGULATED, AND INADEQUATE GUIDANCE TO THE
TRIERS OF FACT.  THE FORMER OBJECTION COULD NOT BE CURED
RETROSPECTIVELY BY A RULING EITHER OF THE TRIAL COURT OR THE APPELLATE
COURT, THOUGH IT MIGHT BE CURED FOR THE FUTURE BY AN AUTHORITATIVE
JUDICIAL GLOSS  ...  ."  FREUND, THE SUPREME COURT AND CIVIL LIBERTIES,
4 VAND.  L. REV. 533, 541 (1951). 

SEE AMSTERDAM, NOTE, 109 U. PA. L. REV. 67, 73-74, N. 34.  IF THIS
VIEW IS VALID IN THE CASE OF A JUDICIAL CONSTRUCTION WHICH ADDS A
"CLARIFYING GLOSS" TO A VAGUE STATUTE, ID., AT 73, MAKING IT NARROWER
OR MORE DEFINITE THAN ITS LANGUAGE INDICATES, IT MUST BE A FORTIORI SO
WHERE THE CONSTRUCTION UNEXPECTEDLY BROADENS A STATUTE WHICH ON ITS
FACE HAD BEEN DEFINITE AND PRECISE.  INDEED, AN UNFORESEEABLE JUDICIAL
ENLARGEMENT OF A CRIMINAL STATUTE, APPLIED RETROACTIVELY, OPERATES
PRECISELY LIKE AN EX POST FACTO LAW, SUCH AS ART. I, SEC. 10, OF THE
CONSTITUTION FORBIDS.  AN EX POST FACTO LAW HAS BEEN DEFINED BY THIS
COURT AS ONE "THAT MAKES AN ACTION DONE BEFORE THE PASSING OF THE LAW,
AND WHICH WAS INNOCENT WHEN DONE, CRIMINAL; AND PUNISHES SUCH ACTION,"
OR "THAT AGGRAVATES A CRIME, OR MAKES IT GREATER THAN IT WAS, WHEN
COMMITTED."  CALDER V. BULL, 3 DALL.  386, 390.  (FN4)  IF A STATE
LEGISLATURE IS BARRED BY THE EX POST FACTO CLAUSE FROM PASSING SUCH A
LAW, IT MUST FOLLOW THAT A STATE SUPREME COURT IS BARRED BY THE DUE
PROCESS CLAUSE FROM ACHIEVING PRECISELY THE SAME RESULT BY JUDICIAL
CONSTRUCTION.  CF. SMITH V. CAHOON, 283 U.S. 553, 565.  THE FUNDAMENTAL
PRINCIPLE THAT "THE REQUIRED CRIMINAL LAW MUST HAVE EXISTED WHEN THE
CONDUCT IN ISSUE OCCURRED," HALL, GENERAL PRINCIPLES OF CRIMINAL LAW
(2D ED. 1960), AT 58-59, MUST APPLY TO BAR RETROACTIVE CRIMINAL
PROHIBITIONS EMANATING FROM COURTS AS WELL AS FROM LEGISLATURES.  IF A
JUDICIAL CONSTRUCTION OF A CRIMINAL STATUTE IS "UNEXPECTED AND
INDEFENSIBLE BY REFERENCE TO THE LAW WHICH HAD BEEN EXPRESSED PRIOR TO
THE CONDUCT IN ISSUE," IT MUST NOT BE GIVEN RETROACTIVE EFFECT.  ID.,
AT 61. 

THE BASIC DUE PROCESS CONCEPT INVOLVED IS THE SAME AS THAT WHICH THE
COURT HAS OFTEN APPLIED IN HOLDING THAT AN UNFORESEEABLE AND
UNSUPPORTED STATE-COURT DECISION ON A QUESTION OF STATE PROCEDURE DOES
NOT CONSTITUTE AN ADEQUATE GROUND TO PRECLUDE THIS COURT'S REVIEW OF A
FEDERAL QUESTION.  SEE, E.G., WRIGHT V. GEORGIA, 373 U.S. 284, 291;
N.A.A.C.P.  V. ALABAMA, 357 U.S. 449, 456-458; BARR V. CITY OF
COLUMBIA, ANTE, P. 146.  THE STANDARDS OF STATE DECISIONAL CONSISTENCY
APPLICABLE IN JUDGING THE ADEQUACY OF A STATE GROUND ARE ALSO
APPLICABLE, WE THINK, IN DETERMINING WHETHER A STATE COURT'S
CONSTRUCTION OF A CRIMINAL STATUTE WAS SO UNFORESEEABLE AS TO DEPRIVE
THE DEFENDANT OF THE FAIR WARNING TO WHICH THE CONSTITUTION ENTITLES
HIM.  IN BOTH SITUATIONS, "A FEDERAL RIGHT TURNS UPON THE STATUS OF
STATE LAW AS OF A GIVEN MOMENT IN THE PAST - OR, MORE EXACTLY, THE
APPEARANCE TO THE INDIVIDUAL OF THE STATUTE OF STATE LAW AS OF THAT
MOMENT  ...  ."  109 U. PA. L. REV., SUPRA, AT 74, N. 34.  WHEN A STATE
COURT OVERRULES A CONSISTENT LINE OF PROCEDURAL DECISIONS WITH THE
RETROACTIVE EFFECT OF DENYING A LITIGANT A HEARING IN A PENDING CASE,
IT THEREBY DEPRIVES HIM OF DUE PROCESS OF LAW "IN ITS PRIMARY SENSE OF
AN OPPORTUNITY TO BE HEARD AND TO DEFEND HIS SUBSTANTIVE RIGHT." 
BRINKERHOFF-FARIS TRUST & SAV. CO. V. HILL, 281 U.S. 673, 678.  WHEN A
SIMILARLY UNFORSEEABLE STATE-COURT CONSTRUCTION OF A CRIMINAL STATUTE
IS APPLIED RETROACTIVELY TO SUBJECT A PERSON TO CRIMINAL LIABILITY FOR
PAST CONDUCT, THE EFFECT IS TO DEPRIVE HIM OF DUE PROCESS OF LAW IN THE
SENSE OF FAIR WARNING THAT HIS CONTEMPLATED CONDUCT CONSTITUTES A
CRIME.  APPLICABLE TO EITHER SITUATION IS THIS COURT'S STATEMENT IN
BRINKERHOFF-FARIS, SUPRA, THAT "IF THE RESULT ABOVE STATED WERE
ATTAINED BY AN EXERCISE OF THE STATE'S LEGISLATIVE POWER, THE
TRANSGRESSION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
WOULD BE OBVIOUS," AND "THE VIOLATION IS NONE THE LESS CLEAR WHEN THAT
RESULT IS ACCOMPLISHED BY THE STATE JUDICIARY IN THE COURTS OF
CONSTRUING AN OTHERWISE VALID ...  STATE STATUTE."  ID., AT 679-680. 

APPLYING THOSE PRINCIPLES TO THIS CASE, WE AGREE WITH PETITIONERS
THAT SEC. 16-386 OF THE SOUTH CAROLINA CODE DID NOT GIVE THEM FAIR
WARNING, AT THE TIME OF THEIR CONDUCT IN ECKERD'S DRUG STORE IN 1960,
THAT THE ACT FOR WHICH THEY NOW STAND CONVICTED WAS RENDERED CRIMINAL
BY THE STATUTE.  BY ITS TERMS, THE STATUTE PROHIBITED ONLY "ENTRY UPON
THE LANDS OF ANOTHER  ...  AFTER NOTICE FROM THE OWNER  ...
PROHIBITING SUCH ENTRY  ...  ."  THERE WAS NOTHING IN THE STATUTE TO
INDICATE THAT IT ALSO PROHIBITED THE DIFFERENT ACT OF REMAINING ON THE
PREMISES AFTER BEING ASKED TO LEAVE.  PETITIONERS DID NOT VIOLATE THE
STATUTE AS IT WAS WRITTEN; THEY RECEIVED NO NOTICE BEFORE ENTERING
EITHER THE DRUGSTORE OR THE RESTAURANT DEPARTMENT.  INDEED, THEY KNEW
THEY WOULD NOT RECEIVE ANY SUCH NOTICE BEFORE ENTERING THE STORE, FOR
THEY WERE INVITED TO PURCHASE EVERYTHING EXCEPT FOOD THERE.  SO FAR AS
THE WORDS OF THE STATUTE WERE CONCERNED, PETITIONERS WERE GIVEN NOT
ONLY NO "FAIR WARNING," BUT NO WARNING WHATEVER, THAT THEIR CONDUCT IN
ECKERD'S DRUG STORE WOULD VIOLATE THE STATUTE.  (FN5)    THE
INTERPRETATION GIVEN THE STATUTE BY THE SOUTH CAROLINA SUPREME COURT IN
THE MITCHELL CASE, NOTE 2, SUPRA, SO CLEARLY AT VARIANCE WITH THE
STATUTORY LANGUAGE, HAS NOT THE SLIGHTEST SUPPORT IN PRIOR SOUTH
CAROLINA DECISIONS.  FAR FROM EQUATING ENTRY AFTER NOTICE TO LEAVE,
THOSE DECISIONS EMPHASIZED THAT PROOF OF NOTICE BEFORE ENTRY WAS
NECESSARY TO SUSTAIN A CONVICTION UNDER SEC 16-386.   THUS IN STATE V.
GREEN, 35 S.C.  266, 14 S.E. 619 (1892), THE DEFENDANT WAS APPARENTLY
IN POSSESSION OF THE LAND WHEN HE WAS TOLD TO LEAVE.  YET THE
PROSECUTION WAS NOT FOR REMAINING ON THE LAND AFTER SUCH NOTICE BUT FOR
RETURNING LATER, AND THE COURT SAID, "UNDER THE VIEW WE TAKE OF THIS
PROVISION OF OUR LAWS, WHEN THE OWNER OR TENANT IN POSSESSION OF LAND
FORBIDS ENTRY THEREON, ANY PERSON WITH NOTICE WHO AFTERWARDS ENTERS
SUCH PREMISES IS LIABLE TO PUNISHMENT."  35 S.C., AT 268, 14 S.E., AT
620.  IN STATE V. COCKFIELD, 15 RICH.  LAW (S.C.)  53, 55 (1867), THE
COURT, AFTER QUOTING THE STATUTE'S PROVISION (AS IT THEN READ) THAT
"EVERY ENTRY ON THE INCLOSED OR UNINCLOSED LANDS OF ANOTHER, AFTER
NOTICE FROM THE OWNER OR TENANT, PROHIBITING THE SAME, SHALL BE DEEMED
A MISDEMEANOR," STATED THAT THIS LANGUAGE "WILL NOT PERMIT THE COURT TO
SUPPOSE THAT IT WAS INTENDED TO HAVE ANY OTHER THAN THE ORDINARY
ACCEPTATION."  SEE ALSO STATE V. MAYS, 24 S.C. 190 (1885); STATE V.
TENNY, 59 S.C. 215, 36 S.E. 555 (1900); STATE V. OLASOV, 133 S.C. 139,
130 S.E. 514 (1925).  IN SUM, IN THE 95 YEARS BETWEEN THE ENACTMENT OF
THE STATUTE IN 1866 AND THE 1961 DECISION IN THE MITCHELL CASE, THE
SOUTH CAROLINA CASES CONSTRUING THE STATUTE UNIFORMLY EMPHASIZED THE
NOTICE-BEFORE-ENTRY REQUIREMENT, AND GAVE NOT THE SLIGHTEST INDICATION
THAT THAT REQUIREMENT COULD BE SATISFIED BY PROOF OF THE DIFFERENT ACT
OF REMAINING ON THE LAND AFTER BEING TOLD TO LEAVE. 

IN HOLDING IN MITCHELL THAT "ENTRY  ...  AFTER NOTICE" INCLUDES
REMAINING AFTER BEING ASKED TO LEAVE, THE SOUTH CAROLINA SUPREME COURT
DID NOT CITE ANY OF THE CASES IN WHICH IT HAD PREVIOUSLY CONSTRUED THE
SAME STATUTE.  THE ONLY TWO SOUTH CAROLINA CASES IT DID CITE WERE
SIMPLY IRRELEVANT; THEY HAD NOTHING TO DO EVEN WITH THE GENERAL FIELD
OF CRIMINAL TRESPASS, INVOLVING INSTEAD THE LAW OF CIVIL TRESPASS -
WHICH HAS ALWAYS BEEN RECOGNIZED, BY THE COMMON LAW IN GENERAL AND BY
SOUTH CAROLINA LAW IN PARTICULAR, AS A FIELD QUITE DISTINCT AND
SEPARATE FROM CRIMINAL TRESPASS.  SHRAMEK V. WALKER, 152 S.C. 88, 149
S.E. 331 (1929), WAS AN ACTION FOR DAMAGES FOR AN ASSAULT AND BATTERY
COMMITTED BY A STOREKEEPER UPON A CUSTOMER WHO REFUSED TO LEAVE THE
STORE AFTER BEING TOLD TO DO SO; THE DEFENSE WAS THAT THE STOREKEEPER
WAS ENTITLED TO USE REASONABLE FORCE TO EJECT AN UNDESIRABLE CUSTOMER. 
THE VALIDITY OF SUCH A DEFENSE WAS RECOGNIZED, THE COURT STATING THAT
"WHILE THE ENTRY BY ONE PERSON ON THE PREMISES OF ANOTHER MAY BE
LAWFUL, BY REASON OF EXPRESS OF IMPLIED INVITATION TO ENTER, HIS
FAILURE TO DEPART, ON THE REQUEST OF THE OWNER, WILL MAKE HIM A
TRESPASSER AND JUSTIFY THE OWNER IN USING REASONABLE FORCE TO EJECT
HIM."  152 S.C., AT 99-100, 149 S.E., AT 336.  STATE V. WILLIAMS, 76
S.C. 135, 56 S.E. 783 (1907), WAS A MURDER PROSECUTION IN WHICH THE
DEFENSE WAS SIMILARLY RAISED THAT THE VICTIM WAS A TRESPASSER AGAINST
WHOM THE DEFENDANT WAS ENTITLED TO USE FORCE, AND THE COURT APPROVED
THE TRIAL JUDG'ES INSTRUCTION THAT A PERSON REMAINING ON ANOTHER'S
PREMISES AFTER BEING TOLD TO LEAVE IS A TRESPASSER AND MAY BE EJECTED
BY REASONABLE FORCE.  76 S.C., AT 142, 56 S.E., AT 785. 

BOTH CASES THUS TURNED WHOLLY UPON TORT PRINCIPLES.  FOR THAT REASON
THEY HAD NO RELEVANCE WHATEVER, UNDER SOUTH CAROLINA LAW PRIOR TO THE
MITCHELL CASE, TO SEC. 16-386 IN PARTICULAR OR TO CRIMINAL TRESPASS IN
GENERAL.  IT IS ONE THING TO SAY THAT A PERSON REMAINING ON ANOTHER'S
LAND AFTER BEING TOLD TO LEAVE MAY BE EJECTED WITH REASONABLE FORCE OR
SUED IN A CIVIL ACTION, AND QUITE ANOTHER TO SAY HE MAY BE CONVICTED
AND PUNISHED AS A CRIMINAL.  THE CLEAR DISTINCTION BETWEEN CIVIL AND
CRIMINAL TRESPASS IS WELL RECOGNIZED IN THE COMMON LAW.  THUS IT IS
STATED, IN 1 BISHOP, CRIMINAL LAW, SEC. 208 (9TH ED. 1923) THAT: 

"IN CIVIL JURISPRUDENCE, WHEN A MAN DOES A THING BY PERMISSION AND
NOT BY LICENSE, AND, AFTER PROCEEDING LAWFULLY PART WAY, ABUSES THE
LIBERTY THE LAW HAD GIVEN HIM, HE SHALL BE DEEMED A TRESPASSER FROM THE
BEGINNING BY REASON OF THIS SUBSEQUENT ABUSE.  BUT THIS DOCTRINE DOES
NOT PREVAIL IN OUR CRIMINAL JURISPRUDENCE; FOR NO MAN IS PUNISHABLE
CRIMINALLY FOR WHAT WAS NOT CRIMINAL WHEN DONE, EVEN THOUGH HE
AFTERWARD ADDS EITHER THE ACT OR THE INTENT, YET NOT THE TWO
TOGETHER." 

UNLESS A TRESPASS IS "COMMITTED UNDER SUCH CIRCUMSTANCES AS TO
CONSTITUTE AN ACTUAL BREACH OF THE PEACE, IT IS NOT INDICTABLE AT
COMMON LAW, BUT IS TO BE REDRESSED BY A CIVIL ACTION ONLY."  CLARK AND
MARSHALL, CRIMES (5TH ED. 1952), AT 607.  (FN6)  THERE IS NO REASON TO
DOUBT THAT, UNTIL THE MITCHELL CASE, THIS BASIC DISTINCTION WAS
RECOGNIZED IN SOUTH CAROLINA ITSELF.  IN STATE V. CARGILL, 2 BREV.  114
(1810), THE SOUTH CAROLINA SUPREME COURT REVERSED A CONVICTION FOR
FORCIBLE ENTRY, SAYING: 

"IF THE PROSECUTOR HAD A BETTER RIGHT TO THE POSSESSION THAN THE
DEFENDANT, HE MIGHT HAVE AVAILED HIMSELF OF HIS CIVIL REMEDY.  THE LAW
WILL NOT PUNISH, CRIMINALLY, A PRIVATE INJURY OF THIS NATURE.  THERE
MUST BE, AT LEAST, SOME APPEARANCE OF FORCE, BY ACTS, WORDS, OR
GESTURES, TO CONSTITUTE THE OFFENSE CHARGED."  ID., AT 115. 

UNDER PRE-EXISTING SOUTH CAROLINA LAW THE TWO CASES RELIED ON BY THE
STATE SUPREME COURT WERE THUS COMPLETELY UNRELATED, NOT ONLY TO THIS
PARTICULAR STATUTE, BUT TO THE ENTIRE FIELD OF CRIMINAL TRESPASS.  THE
PRE-EXISTING LAW GAVE PETITIONERS NO WARNING WHATEVER THAT THIS
CRIMINAL STATUTE WOULD BE CONSTRUED, DESPITE ITS CLEAR LANGUAGE AND
CONSISTENT JUDICIAL INTERPRETATION TO THE CONTRARY, AS INCORPORATING A
DOCTRINE FOUND ONLY IN CIVIL TRESPASS CASES.  (FN7) 

THE SOUTH CAROLINA SUPREME COURT IN MITCHELL ALSO CITED NORTH
CAROLINA DECISIONS IN SUPPORT OF ITS CONSTRUCTION OF THE STATUTE.  IT
WOULD BE RARE SITUATION IN WHICH THE MEANING OF A STATUTE OF ANOTHER
STATE SUFFICED TO AFFORD A PERSON "FAIR WARNING" THAT HIS OWN STATE'S
STATUTE MEANT SOMETHING QUITE DIFFERENT FROM WHAT ITS WORDS SAID.  NO
SUCH SITUATION IS PRESENTED HERE.  THE MEANING ASCRIBED BY THE NORTH
CAROLINA SUPREME COURT TO THE NORTH CAROLINA CRIMINAL TRESPASS STATUTE
ALSO A RULING FIRST ANNOUNCED IN A "SIT-IN" CASE OF RECENT VINTAGE -
WAS EXPRESSLY BASED ON WHAT CRIMINAL TRESPASS CASES IN NORTH CAROLINA
HAD "REPEATEDLY HELD."  STATE V. CLYBURN, 247 N.C. 455, 462, 101 S.E.2D
295, 300 (1958).  AS WAS DEMONSTRATED ABOVE, SOUTH CAROLINA'S CRIMINAL
TRESPASS DECISIONS PRIOR TO MITCHELL HAD "REPEATEDLY HELD" NO SUCH
THING, NOR HAD THEY EVEN INTIMATED THE ATTRIBUTION OF SUCH A MEANING TO
THE WORDS "ENTRY  ...  AFTER NOTICE" IN SEC. 16-386.  MOREOVER, IF THE
LAW OF OTHER STATES IS INDEED TO BE CONSULTED, IT IS THE PRIOR LAW OF
SOUTH CAROLINA, NOT THE LAW FIRST ANNOUNCED IN MITCHELL, THAT IS
CONSONANT WITH THE TRADITIONAL INTERPRETATION OF SIMILAR "ENTRY  ...
AFTER NOTICE" STATUTES BY OTHER STATE COURTS.  THUS IN GOLDSMITH V.
STATE, 86 ALA. 55, 5 SO. 480 (1889), THE ALABAMA COURT CONSTRUED SEC.
3874 OF THE ALABAMA CODE OF 1887, IMPOSING CRIMINAL PENALTIES ON ONE
WHO "ENTERS  ...  AFTER HAVING BEEN WARNED  ...  NOT TO DO SO," AND
HELD THAT: 

"THERE MUST BE A WARNING FIRST, AND AN ENTRY AFTERWARDS.  ONE ALREADY
IN POSSESSION, EVEN THOUGH A TRESPASSER, OR THERE BY THAT IMPLIED
PERMISSION WHICH OBTAINS IN SOCIETY, CAN NOT, BY A WARNING THEN GIVEN,
BE CONVERTED INTO A VIOLATOR OF THE STATUTE WE ARE CONSTRUING, ALTHOUGH
HE MAY VIOLATE SOME OTHER LAW, CIVIL OR CRIMINAL."  86 ALA., AT 57, 5
SO., AT 480-481.  (FN8) 

IN MARTIN V. CITY OF STRUTHERS, 319 U.S. 141, 147, THIS COURT NOTED
THAT "TRADITIONALLY THE AMERICAN LAW PUNISHES PERSONS WHO ENTER ONTO
THE PROPERTY OF ANOTHER AFTER HAVING BEEN WARNED BY THE OWNER TO KEEP
OFF."  SECTION 16-386 OF THE SOUTH CAROLINA CODE IS SIMPLY AN EXAMPLE
OF THIS "TRADITIONAL AMERICAN LAW."  IN CONSTRUING SUCH STATUTES, OTHER
STATE COURTS HAVE RECOGNIZED THAT THEY APPLY ONLY TO "ENTRY ONTO" THE
PROPERTY OF ANOTHER AFTER NOTICE NOT TO ENTER, AND HAVE NOT INTERPRETED
THEM TO COVER ALSO THE DISTINCT ACT OF REMAINING ON THE PROPERTY AFTER
NOTICE TO LEAVE.  THE SOUTH CAROLINA SUPREME COURT'S RETROACTIVE
APPLICATION OF SUCH A CONSTRUCTION HERE IS NO LESS INCONSISTENT WITH
THE LAW OF OTHER STATES THAN IT IS WITH THE PRIOR CASE LAW OF SOUTH
CAROLINA AND, OF COURSE, WITH THE LANGUAGE OF THE STATUTE ITSELF. 

OUR CONCLUSION THAT PETITIONERS HAD NO FAIR WARNING OF THE CRIMINAL
PROHIBITION UNDER WHICH THEY NOW STAND CONVICTED IS CONFIRMED BY THE
OPINION HELD IN SOUTH CAROLINA ITSELF AS TO THE SCOPE OF THE STATUTE. 
THE STATE LEGISLATURE WAS EVIDENTLY AWARE OF NO SOUTH CAROLINA
AUTHORITY TO THE EFFECT THAT REMAINING ON THE PREMISES AFTER NOTICE TO
LEAVE WAS INCLUDED WITHIN THE "ENTRY AFTER NOTICE" LANGUAGE OF SEC 16
386.  ON MAY 16, 1960, SHORTLY AFTER THE "SIT-IN" DEMONSTRATION IN THIS
CASE AND PRIOR TO THE STATE SUPREME COURT'S DECISION IN MITCHELL, THE
LEGISLATURE ENACTED SEC. 16-388 OF THE SOUTH CAROLINA CODE, EXPRESSLY
MAKING CRIMINAL THE ACT OF FAILING AND REFUSING "TO LEAVE IMMEDIATELY
UPON BEING ORDERED OR REQUESTED TO DO SO."  SIMILARLY, IT EVIDENTLY DID
NOT OCCUR TO THE ASSISTANT CHIEF OF POLICE WHO ARRESTED PETITIONERS IN
ECKERD'S DRUG STORE THAT THEIR CONDUCT VIOLATED SEC. 16-386, FOR WHEN
THEY ASKED HIM WHY THEY HAD TO LEAVE THE STORE, HE ANSWERED, "BECAUSE
IT'S A BREACH OF THE PEACE  ...  ."  AND WHEN HE WAS ASKED FURTHER
WHETHER HE WAS ASSISTING THE DRUGSTORE MANAGER IN OUSTING PETITIONERS,
HE ANSWERED THAT HE WAS NOT, BUT RATHER THAT "MY PURPOSE WAS THAT THEY
WERE CREATING A DISTURBANCE THERE IN THE STORE, A BREACH OF THE PEACE
IN MY PRESENCE, AND THAT WAS MY PURPOSE."  IT THUS APPEARS THAT NEITHER
THE SOUTH CAROLINA LEGISLATURE NOR THE SOUTH CAROLINA POLICE
ANTICIPATED THE PRESENT CONSTRUCTION OF THE STATUTE. 

WE THINK IT CLEAR THAT THE SOUTH CAROLINA SUPREME COURT, IN APPLYING
ITS NEW CONSTRUCTION OF THE STATUTE TO AFFIRM THESE CONVICTIONS, HAS
DEPRIVED PETITIONERS OF RIGHTS GUARANTEED TO THEM BY THE DUE PROCESS
CLAUSE.  IF SOUTH CAROLINA HAD APPLIED TO THIS CASE ITS NEW STATUTE
PROHIBITING THE ACT OF REMAINING ON THE PREMISES OF ANOTHER AFTER BEING
ASKED TO LEAVE, THE CONSTITUTIONAL PROSCRIPTION OF EX POST FACTO LAWS
WOULD CLEARLY INVALIDATE THE CONVICTIONS.  THE DUE PROCESS CLAUSE
COMPELS THE SAME RESULT HERE, WHERE THE STATE HAS SOUGHT TO ACHIEVE
PRECISELY THE SAME EFFECT BY JUDICIAL CONSTRUCTION OF THE STATUTE. 
WHILE SUCH A CONSTRUCTION IS OF COURSE VALID FOR THE FUTURE, IT MAY NOT
BE APPLIED RETROACTIVELY, ANY MORE THAN A LEGISLATIVE ENACTMENT MAY BE,
TO IMPOSE CRIMINAL PENALTIES FOR CONDUCT COMMITTED AT A TIME WHEN IT
WAS NOT FAIRLY STATED TO BE CRIMINAL.  APPLICATION OF THIS RULE IS
PARTICULARLY COMPELLING WHERE, AS HERE, THE PETITIONERS' CONDUCT CANNOT
BE DEEMED IMPROPER OR IMMORAL.  COMPARE MCBOYLE V. UNITED STATES, 283
U.S. 25.  (FN9) 

IN THE LAST ANALYSIS THE CASE IS CONTROLLED, WE THINK, BY THE
PRINCIPLE WHICH CHIEF JUSTICE MARSHALL STATED FOR THE COURT IN UNITED
STATES V. WILTBERGER, 5 WHEAT.  76, 96: 

"THE CASE MUST BE A STRONG ONE INDEED, WHICH WOULD JUSTIFY A COURT IN
DEPARTING FROM THE PLAIN MEANING OF WORDS, ESPECIALLY IN A PENAL ACT,
IN SEARCH OF AN INTENTION WHICH THE WORDS THEMSELVES DID NOT SUGGEST. 
TO DETERMINE THAT A CASE IS WITHIN THE INTENTION OF A STATUTE, ITS
LANGUAGE MUST AUTHORISE US TO SAY SO.  IT WOULD BE DANGEROUS, INDEED,
TO CARRY THE PRINCIPLE, THAT A CASE WHICH IS WITHIN THE REASON OR
MISCHIEF OR A STATUTE, IS WITHIN ITS PROVISIONS, SO FAR AS TO PUNISH A
CRIME NOT ENUMERATED IN THE STATUTE, BECAUSE IT IS OF EQUAL ATROCITY,
OR OF KINDRED CHARACTER, WITH THOSE WHICH ARE ENUMERATED  ...  ." 

THE CRIME FOR WHICH THESE PETITIONERS STAND CONVICTED WAS "NOT
ENUMERATED IN THE STATUTE" AT THE TIME OF THEIR CONDUCT.  IT FOLLOWS
THAT THEY HAVE BEEN DEPRIVED OF LIBERTY AND PROPERTY WITHOUT DUE
PROCESS OF LAW IN CONTRAVENTION OF THE FOURTEENTH AMENDMENT. 
REVERSED. 

FN1  THAT SECTION PROVIDES:  "ENTRY ON LANDS OF ANOTHER AFTER NOTICE
PROHIBITING SAME.  - EVERY ENTRY UPON THE LANDS OF ANOTHER WHERE ANY
HORSE, MULE, COW, HOG OR ANY OTHER LIVESTOCK IS PASTURED, OR ANY OTHER
LANDS OF ANOTHER, AFTER NOTICE FROM THE OWNER OR TENANT PROHIBITING
SUCH ENTRY, SHALL BE A MISDEMEANOR AND BE PUNISHED BY A FINE NOT TO
EXCEED ONE HUNDRED DOLLARS, OR BY IMPRISONMENT WITH HARD LABOR ON THE
PUBLIC WORKS OF THE COUNTY FOR NOT EXCEEDING THIRTY DAYS.  WHEN ANY
OWNER OR TENANT OF ANY LANDS SHALL POST A NOTICE IN FOUR CONSPICUOUS
PLACES ON THE BOARDERS OF SUCH LAND PROHIBITING ENTRY THEREON, A PROOF
OF THE POSTING SHALL BE DEEMED AND TAKEN AS NOTICE CONCLUSIVE AGAINST
THE PERSON MAKING ENTRY, AS FORESAID FOR THE PURPOSE OF TRESPASSING." 

FN2  THIS CONSTRUCTION OF THE STATUTE WAS FIRST ANNOUNCED BY THE
SOUTH CAROLINA SUPREME COURT IN CITY OF CHARLESTON V. MITCHELL, 239
S.C. 376, 123 S.E.2D 512, DECIDED ON DECEMBER 13, 1961, CERTIORARI
GRANTED AND JUDGMENT REVERSED, POST, P. 551.  IN THE INSTANT CASE AND
IN CITY OF COLUMBIA V. BARR, 239 S.C. 395, 123 S.E.2D 521, REVERSED,
ANTE, P. 146, THE SOUTH CAROLINA SUPREME COURT SIMPLY RELIED ON ITS
RULING IN MITCHELL.    FN3  SEE ALSO MCBOYLE V. UNITED STATES, 283 U.S.
25, 27; UNITED STATES V. CARDIFF, 344 U.S. 174, 176-177; PIERCE V.
UNITED STATES, 314 U.S. 306, 311. 

FN4  THUS, IT HAS BEEN SAID THAT "NO ONE CAN BE CRIMINALLY PUNISHED
IN THIS COUNTRY, EXCEPT ACCORDING TO A LAW PRESCRIBED FOR HIS
GOVERNMENT BY THE SOVEREIGN AUTHORITY BEFORE THE IMPUTED OFFENCE WAS
COMMITTED, AND WHICH EXISTED AS A LAW AT THE TIME."  KRING V. MISSOURI,
107 U.S. 221, 235.  SEE FLETCHER V. PECK, 6 CRANCH 87, 138; CUMMINGS V.
MISSOURI, 4 WALL.  277, 325-326. 

FN5  WE THINK IT IRRELEVANT THAT PETITIONERS AT ONE POINT TESTIFIED
THAT THEY HAD INTENDED TO BE ARRESTED.  THE DETERMINATION WHETHER A
CRIMINAL STATUTE PROVIDES FAIR WARNING OF ITS PROHIBITIONS MUST BE MADE
ON THE BASIS OF THE STATUTE ITSELF AND THE OTHER PERTINENT LAW, RATHER
THAN ON THE BASIS OF AN AD HOC APPRAISAL OF THE SUBJECTIVE EXPECTATIONS
OF PARTICULAR DEFENDANTS.  BUT APART FROM THAT, THE RECORD IS SILENT AS
TO WHAT PETITIONERS INTENDED TO BE ARRESTED FOR, AND IN FACT WHAT THEY
WERE ARRESTED FOR WAS NOT TRESPASS BUT BREACH OF THE PEACE - ON WHICH
CHARGE THEY WERE NOT CONVICTED.  HENCE THERE IS NO BASIS FOR AN
INFERENCE THAT PETITIONERS INTENDED TO BE ARRESTED FOR VIOLATING THIS
STATUTE, EITHER BY REMAINING ON THE PREMISES AFTER BEING ASKED TO LEAVE
OR BY ANOTHER CONDUCT. 

FN6  ACCORD, KRAUSS V. STATE, 216 MD. 369, 140 A.2D 635 (1958); 2
WHARTON, CRIMINAL LAW AND PROCEDURE, SEC. 868 (1957); HOCHHEIMER, LAW
OF CRIMES AND CRIMINAL PROCEDURE, SECS. 327-329 (2D ED.). 

FN7  INDEED, IT APPEARS THAT FAR FROM BEING UNDERSTOOD TO INCORPORATE
A DOCTRINE OF CIVIL TRESPASS, SEC 16-386 IS CONSIDERED IN SOUTH
CAROLINA NOT TO INCORPORATE ANY COMMON LAW OF TRESPASS, EITHER CRIMINAL
OR CIVIL - IN OTHER WORDS, NOT TO BE A "TRESPASS" STATUTE AT ALL. 
SOUTH CAROLINA HAS LONG HAD ON ITS BOOKS, SIDE BY SIDE WITH SEC. 16
386, A STATUTE THAT DOES DEAL EO NOMINE WITH "TRESPASS"; SEC. 16-382
MAKES IT UNLAWFUL TO "WILFULLY, UNLAWFULLY AND MALICIOUSLY  ...  COMMIT
ANY ...  TRESPASS UPON REAL PROPERTY IN THE POSSESSION OF ANOTHER  ...
."  WHEN SOUTH CAROLINA IN 1960 ENACTED LEGISLATION DEALING
SPECIFICALLY WITH A REFUSAL TO LEAVE UPON REQUEST (THUS FILLING THE GAP
WHICH THE SOUTH CAROLINA SUPREME COURT HAS FILLED BY JUDICIAL
CONSTRUCTION IN MITCHELL AND IN THIS CASE), IT APPARENTLY GAVE EXPRESS
RECOGNITION TO THE DISTINCTION BETWEEN THE TWO STATUTES, DELCARING THAT
"THE PROVISIONS OF THIS SECTION SHALL BE CONSTRUED AS BEING IN ADDITION
TO, AND NOT AS SUPERSEDING, ANY OTHER STATUTES OF THE STATE RELATING TO
TRESPASS OR ENTRY ON LANDS OF ANOTHER."  SOUTH CAROLINA CODE OF 1962,
SEC. 16-388.  THUS IT WOULD SEEM THAT SEC. 16-386 IS REGARDED BY STATE
LAW AS DEALING NOT WITH "TRESPASS," BUT RATHER WITH THE DISTINCT
OFFENSE OF "ENTRY ON LANDS OF ANOTHER" AFTER NOTICE NOT TO ENTER.  THE
CONTENTION THAT THE STATUTE WAS UNDERSTOOD TO INCORPORATE A DOCTRINE OF
CIVIL TRESPASS LAW IS THEREFORE ALL THE MORE UNTENABLE. 

FN8  SEE PENNSYLVANIA R. CO. V. FUCELLO, 91 N.J.L. 476, 477, 103 A.
988 (1918); COMMONWEALTH V. RICHARDSON, 313 MASS. 632, 48 N.E.2D 678
(1943); BRUNSON V. STATE, 140 ALA. 201, 203, 37 SO. 197, 198 (1904). 

FN9  SEE FREUND, 4 VAND.  L. REV., SUPRA, AT 540:  "IN APPLYING THE
RULE AGAINST VAGUENESS OR OVERBROADNESS SOMETHING  ...  SHOULD DEPEND
ON THE MORAL QUALITY OF THE CONDUCT.  IN ORDER NOT TO CHILL CONDUCT
WITHIN THE PROTECTION OF THE CONSTITUTION AND HAVING A GENUINE SOCIAL
UTILITY, IT MAY BE NECESSARY TO THROW THE MANTLE OF PROTECTION BEYOND
THE CONSTITUTIONAL PERIPHERY, WHERE THE STATUTE DOES NOT MAKE THE
BOUNDARY CLEAR." 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE JOINS, WOULD, WHILE
JOINING IN THE OPINION AND JUDGMENT OF THE COURT, ALSO REVERSE FOR THE
REASONS STATED IN THE CONCURRING OPINION OF MR. JUSTICE GOLDBERG IN
BELL V. MARYLAND, ANTE, P. 286. 

MR. JUSTICE DOUGLAS WOULD REVERSE FOR THE REASONS STATED IN HIS
OPINION IN BELL V. MARYLAND, ANTE, P. 242. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

THE CASE AROSE OUT OF A "SIT-IN" DEMONSTRATION WHICH TOOK PLACE AT
ECKERD'S DRUG STORE IN COLUMBIA, SOUTH CAROLINA.  THE PETITIONERS, TWO
NEGRO COLLEGE STUDENTS, WENT TO THE STORE, TOOK SEATS IN A BOOTH IN THE
RESTAURANT DEPARTMENT, AND WAITED TO BE SERVED.  THE STORE'S POLICY WAS
TO SELL TO NEGROES AS WELL AS WHITES IN ALL DEPARTMENTS EXCEPT THE
RESTAURANT.  AFTER PETITIONERS SAT DOWN, A STORE EMPLOYEE PUT UP A
CHAIN WITH A "NO TRESPASSING" SIGN ATTACHED.  PETITIONERS NEVERTHELESS
CONTINUED TO SIT QUIETLY IN THE BOOTH.  THE STORE MANAGER THEN CALLED
THE CITY POLICE DEPARTMENT AND ASKED THE POLICE TO COME AND REMOVE
PETITIONERS.  AFTER THE POLICE ARRIVED AT THE STORE THE MANAGER TWICE
ASKED PETITIONERS TO LEAVE.  THEY DID NOT DO SO.  THE CHIEF OF POLICE
THEN TWICE ASKED THEM TO LEAVE.  WHEN THEY AGAIN REFUSED, HE ARRESTED
THEM BOTH.  THEY WERE CHARGED WITH CRIMINAL TRESPASS IN VIOLATION OF
SEC. 16-386 OF THE SOUTH CAROLINA CODE, (FN1) TRIED IN RECORDER'S
COURT, AND FOUND GUILTY.  (FN2)  ON APPEAL THE COUNTY COURT IN AN
UNREPORTED OPINION AFFIRMED THE CONVICTIONS.  PETITIONERS THEN APPEALED
TO THE SUPREME COURT OF SOUTH CAROLINA, WHICH LIKEWISE AFFIRMED OVER
PETITIONERS' OBJECTIONS THAT BY CONVICTING THEM THE STATE WAS DENYING
THEM DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAWS AS GUARANTEED
BY THE FOURTEENTH AMENDMENT.  239 S.C. 570, 124 S.E.2D 332.  THIS COURT
GRANTED CERTIORARI TO CONSIDER THESE QUESTIONS.  374 U.S. 805. 

IT IS NOT CONTRADICTED THAT THE STORE MANAGER DENIED PETITIONERS
SERVICE AND ASKED THEM TO LEAVE ONLY BECAUSE OF THE STORE'S
ACKNOWLEDGED POLICY OF NOT SERVING NEGROES IN ITS RESTAURANT.  APART
FROM THE FACT THAT THEY REMAIN IN THE RESTAURANT AFTER HAVING BEEN
ORDERED TO LEAVE, PETITIONERS' CONDUCT WHILE THERE WAS PEACEFUL AND
ORDERLY.  THEY SIMPLY CLAIMED THAT THEY HAD A RIGHT TO BE SERVED; THE
MANAGER INSISTED, AS THE STATE NOW INSISTS, THAT HE HAD A LEGAL RIGHT
TO CHOOSE HIS OWN CUSTOMERS AND TO HAVE PETITIONERS REMOVED FROM THE
RESTAURANT AFTER THEY REFUSED TO LEAVE AT HIS REQUEST.  WE HAVE STATED
TODAY IN BELL V. MARYLAND, ANTE, P. 318, OUR BELIEF THAT THE FOURTEENTH
AMENDMENT DOES NOT OF ITS OWN FORCE COMPEL A RESTAURANT OWNER TO ACCEPT
CUSTOMERS HE DOES NOT WANT TO SERVE, EVEN THOUGH HIS REASON FOR
REFUSING TO SERVE THEM MAY BE HIS RACIAL PREJUDICE, ADHERENCE TO LOCAL
CUSTOM, OR WHAT HE CONCEIVES TO BE HIS ECONOMIC SELF-INTEREST, AND THAT
THE ARREST AND CONVICTION OF A PERSON FOR TRESPASSING IN A RESTAURANT
UNDER SUCH CIRCUMSTANCES IS NOT THE KIND OF "STATE ACTION" FORBIDDEN BY
THE FOURTEENTH AMENDMENT.  HERE AS IN THE BELL CASE THERE WAS, SO FAR
AS HAS BEEN POINTED OUT TO US, NO CITY ORDINANCE, OFFICIAL UTTERANCE,
OR STATE LAW OF ANY KIND TENDING TO PREVENT ECKERD'S FROM SERVING THESE
PETITIONERS HAD IT CHOSEN TO DO SO.  COMPARE ROBINSON V. FLORIDA, ANTE,
P. 153; LOMBARD V. LOUISIANA, 373 U.S. 267; PETERSON V. CITY OF
GREENVILLE, 373 U.S. 244.  ON THE FIRST QUESTION HERE RAISED,
THEREFORE, OUR OPINION IN BELL V. MARYLAND IS FOR US CONTROLLING. 

PETITIONERS ALSO CONTEND THAT THEY WERE DENIED DUE PROCESS OF LAW
EITHER BECAUSE THEIR CONVICTION UNDER THE TRESPASS STATUTE WAS BASED ON
NO EVIDENCE TO SUPPORT THE CHARGE, CF. THOMPSON V. CITY OF LOUISVILLE,
362 U.S. 199, OR BECAUSE THAT STATUTE AS APPLIED WAS SO VAGUE AND
INDEFINITE THAT IT FAILED TO FURNISH FAIR WARNING THAT IT PROHIBITED A
PERSON WHO ENTERED THE PROPERTY OF ANOTHER WITHOUT NOTICE NOT TO DO SO
FROM REMAINING AFTER BEING ASKED TO LEAVE, CF. EDWARDS V. SOUTH
CAROLINA, 372 U.S. 229; CANTWELL V. CONNECTICUT, 310 U.S. 296; LANZETTA
V. NEW JERSEY, 306 U.S. 451.  UNDER THE STATE SUPREME COURT'S
CONSTRUCTION OF THE STATUTE, IT IS CLEAR THAT THERE WAS EVIDENCE TO
SUPPORT THE CONVICTION.  THERE REMAINS TO BE CONSIDERED, THEREFORE,
ONLY THE VAGUENESS CONTENTION, WHICH RESTS ON THE ARGUMENT THAT SINCE
THE STATUTORY LANGUAGE FORBIDS ONLY "ENTRY UPON THE LANDS OF ANOTHER
...  AFTER NOTICE  ...  PROHIBITING SUCH ENTRY," THE STATUTE CANNOT
FAIRLY BE CONSTRUED AS PROHIBITING A PERSON FROM REMAINING ON PROPERTY
AFTER NOTICE TO LEAVE.  WE VOTED TO SUSTAIN A MARYLAND TRESPASS STATUTE
(FN3) AGAINST AN IDENTICAL CHALLENGE IN BELL V. MARYLAND, SUPRA.  WHILE
THERE IS SOME DIFFERENCE IN THE LANGUAGE OF THE SOUTH CAROLINA AND
MARYLAND STATUTES - THE MARYLAND STATUTE PROHIBITED ENTERING OR
CROSSING OVER THE LANDS OF ANOTHER AFTER NOTICE NOT TO DO SO, WHILE
SOUTH CAROLINA'S STATUTE SPEAKS ONLY OF ENTRY AND NOT OF CROSSING OVER
THIS DISTINCTION HAS NO RELEVANCE TO THE STATUTE'S PROHIBITION AGAINST
REMAINING AFTER BEING ASKED TO LEAVE.  IN HOLDING THAT THE SOUTH
CAROLINA STATUTE FORBIDS REMAINING AFTER HAVING BEEN ASKED TO LEAVE AS
WELL AS ENTRY AFTER NOTICE NOT TO DO SO, THE SOUTH CAROLINA COURTS
RELIED IN PART ON THE FACT THAT IT HAS LONG BEEN ACCEPTED AS THE COMMON
LAW OF THAT STATE THAT A PERSON WHO ENTERS UPON THE PROPERTY OF ANOTHER
BY INVITATION BECOMES A TRESPASSER IF HE REFUSES TO LEAVE WHEN ASKED TO
DO SO.  SEE, E.G., SHRAMEK V. WALKER, 152 S.C. 88, 149 S.E. 331 (1929);
STATE V. WILLIAMS, 76 S.C. 135, 142, 56 S.E. 783, 785 (1907); STATE V.
LAZARUS, 1 MILL CONST. 34 (1817).  WE CANNOT BELIEVE THAT EITHER THE
PETITIONERS (FN4) OR ANYONE ELSE COULD HAVE BEEN MISLED BY THE LANGUAGE
OF THIS STATUTE INTO BELIEVING THAT IT WOULD PERMIT THEM TO STAY ON THE
PROPERTY OF ANOTHER OVER THE OWNER'S PROTEST WITHOUT BEING GUILTY OF
TRESPASS. 

WE WOULD AFFIRM. 

FN1  SECTION 16-386, CODE OF LAWS OF SOUTH CAROLINA, 1952 (1960
SUPP.), PROVIDES: 

"ENTRY ON LANDS OF ANOTHER AFTER NOTICE PROHIBITING SAME.  - EVERY
ENTRY UPON THE LANDS OF ANOTHER WHERE ANY HORSE, MULE, COW, HOG OR ANY
OTHER LIVESTOCK IS PASTURED, OR ANY OTHER LANDS OF ANOTHER, AFTER
NOTICE FROM THE OWNER OR TENANT PROHIBITING SUCH ENTRY, SHALL BE A
MISDEMEANOR AND BE PUNISHED BY A FINE NOT TO EXCEED ONE HUNDRED
DOLLARS, OR BY IMPRISONMENT WITH HARD LABOR ON THE PUBLIC WORKS OF THE
COUNTY FOR NOT EXCEEDING THIRTY DAYS.  WHEN ANY OWNER OR TENANT OF ANY
LANDS SHALL POST A NOTICE IN FOUR CONSPICUOUS PLACES ON THE BORDERS OF
SUCH LAND PROHIBITING ENTRY THEREON, A PROOF OF THE POSTING SHALL BE
DEEMED AND TAKEN AS NOTICE CONCLUSIVE AGAINST THE PERSON MAKING ENTRY
AS AFORSAID FOR THE PUPOSE OF TRESPASSING." 

FN2  BOTH PETITIONERS WERE ALSO CHARGED WITH BREACH OF THE PEACE IN
VIOLATION OF SEC. 15-909, CODE OF LAWS OF SOUTH CAROLINA, 1952, BUT
WERE NOT CONVICTED.  PETITIONER BOUIE IN ADDITION WAS CHARGED WITH AND
CONVICTED OF RESISTING ARREST; THAT CONVICTION WAS AFFIRMED BY THE
COUNTY COURT BUT REVERSED BY THE STATE SUPREME COURT FOR INSUFFICIENCY
OF EVIDENCE. 

FN3  MD. CODE, ART. 27, SEC. 577. 

FN4  THE PETITIONERS TESTIFIED THAT THEY HAD AGREED THE DAY BEFORE TO
"SIT IN" AT THE DRUGSTORE RESTAURANT.  ONE PETITIONER SAID THAT HE HAD
INTENDED TO BE ARRESTED; THE OTHER SAID THAT HE HAD THE SAME PURPOSE
"IF IT TOOK THAT." 
..END :





















JACKSON V. DENNO, WARDEN 378 U.S. 368 


NO. 62.  ARGUED DECEMBER 9-10, 1963.  - DECIDED JUNE 22, 1964.  - 309
F.2D 573, REVERSED AND REMANDED. 


PETITIONER AFTER ROBBING A HOTEL FATALLY WOUNDED A POLICEMAN AND
HIMSELF RECEIVED TWO BULLET WOUNDS.  QUESTIONED SHORTLY AFTER ARRIVAL
AT A HOSPITAL, HE ADMITTED THE SHOOTING AND THE ROBBERY.  SOME TIME
LATER, AFTER CONSIDERABLE LOSS OF BLOOD AND SOON AFTER HE HAD BEEN
GIVEN DRUGS, HE WAS INTERROGATED AND ADMITTED FIRING THE FIRST SHOT AT
THE POLICEMAN.  PETITIONER WAS INDICTED FOR MURDER AND BOTH STATEMENTS
WERE ADMITTED AT THE TRIAL, AT WHICH PETITIONER'S TESTIMONY DIFFERED IN
SOME IMPORTANT RESPECTS FROM THE CONFESSIONS.  IN ACCORD WITH NEW YORK
PRACTICE WHERE THE VOLUNTARINESS OF A CONFESSION IS ATTACKED, THE TRIAL
COURT SUBMITTED THAT ISSUE, WITH THE OTHERS, TO THE JURY.  THE JURY WAS
TOLD TO DISREGARD THE CONFESSION ENTIRELY IF IT WAS FOUND INVOLUNTARY,
AND TO DETERMINE THE GUILT OR INNOCENCE SOLELY FROM OTHER EVIDENCE; OF,
IF IT FOUND THE CONFESSION VOLUNTARY, IT WAS TO DETERMINE ITS TRUTH OR
RELIABILITY AND WEIGH IT ACCORDINGLY.  THE JURY FOUND PETITIONER GUILTY
OF FIRST-DEGREE MURDER, THE NEW YORK COURT OF APPEALS AFFIRMED AND THIS
COURT DENIED CERTIORARI.  PETITIONER FILED A PETITION FOR A WRIT OF
HABEAS CORPUS ASSERTING THAT THE NEW YORK PROCEDURE FOR DETERMINING
VOLUNTARINESS OF A CONFESSION WAS UNCONSTITUTIONAL AND THAT HIS
CONFESSION WAS INVOLUNTARY.  THE DISTRICT COURT DENIED THE PETITION AND
THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  UNDER THE NEW YORK PROCEDURE, THE TRIAL JUDGE MUST MAKE A
PRELIMINARY DETERMINATION OF THE VOLUNTARINESS OF A CONFESSION AND
EXCLUDE IT IF IN NO CIRCUMSTANCES COULD THE CONFESSION BE DEEMED
VOLUNTARY.  IF THE EVIDENCE PRESENTS A FAIR QUESTION AS TO ITS
VOLUNTARINESS, AS WHERE CERTAIN FACTS BEARING ON THE ISSUE ARE IN
DISPUTE OR WHERE REASONABLE MEN COULD DIFFER OVER THE INFERENCES TO BE
DRAWN FROM THE UNDISPUTED FACTS, THE JUDGE MUST ADMIT THE CONFESSION
AND LEAVE TO THE JURY, UNDER PROPER INSTRUCTIONS, THE DETERMINATION OF
ITS VOLUNTARY CHARACTER AND ALSO OF ITS TRUTHFULNESS.  THIS PROCEDURE
DOES NOT PROVIDE AN ADEQUATE AND RELIABLE DETERMINATION OF THE
VOLUNTARINESS OF THE CONFESSION AND DOES NOT ADEQUATELY PROTECT THE
PETITIONER'S RIGHT NOT TO BE CONVICTED THROUGH THE USE OF A COERCED
CONFESSION AND IS THEREFORE VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  STEIN V. NEW YORK, 346 U.S. 156, OVERRULED.  PP.
376-391. 

(A)  IT IS A DEPRIVATION OF DUE PROCESS OF LAW TO BASE A CONVICTION,
IN WHOLE OR IN PART, ON A COERCED CONFESSION, REGARDLESS OF ITS TRUTH,
AND EVEN THOUGH THERE MAY BE SUFFICIENT OTHER EVIDENCE TO SUPPORT THE
CONVICTION.  P. 376. 

(B)  A DEFENDANT HAS A CONSTITUTIONAL RIGHT TO A FAIR HEARING AND
RELIABLE DETERMINATION OF THE VOLUNTARINESS OF A CONFESSION, NOT
INFLUENCED BY ITS TRUTH OR FALSITY.  PP. 376-377. 

(C)  IT IS IMPOSSIBLE TO TELL WHETHER THE TRIAL JURY FOUND THE
CONFESSION VOLUNTARY AND RELIED ON IT, OR INVOLUNTARY AND SUPPOSEDLY
IGNORED IT, BUT FOR THE COURT TO ACCEPT THESE ALTERNATIVES IS TO FAIL
TO PROTECT THE RIGHTS OF THE ACCUSED.  PP. 379-391. 

(D)  UNDER THE NEW YORK PROCEDURE THE EVIDENCE GIVEN THE JURY
INEVITABLY INJECTS IRRELEVANT AND IMPERMISSIBLE CONSIDERATIONS OF
TRUTHFULNESS OF THE CONFESSION INTO THE ASSESSMENT OF VOLUNTARINESS. 
ALTERNATIVELY THERE IS THE DANGER THAT A CONFESSION FOUND TO BE COERCED
PLAYS SOME PART IN THE JURY'S DELIBERATIONS ON GUILT OR INNOCENCE.  PP.
386-389. 

2.  PETITIONER IS ENTITLED TO A STATE COURT HEARING ON THE ISSUE OF
THE VOLUNTARINESS OF THE CONFESSION BY A BODY OTHER THAN THE ONE TRYING
HIS GUILT OR INNOCENCE, BUT THAT DOES NOT NECESSARILY ENTITLE HIM TO A
NEW TRIAL.  PP. 391-396. 

(A)  IF AT AN EVIDENTIARY HEARING ON THE COERCION ISSUE IT IS
DETERMINED THAT THE CONFESSION WAS VOLUNTARY AND ADMISSIBLE IN
EVIDENCE, A NEW TRIAL IS UNNECESSARY.  P. 394. 

(B)  IF IT IS DETERMINED AT THE HEARING THAT THE CONFESSION WAS
INVOLUNTARY, A NEW TRIAL, AT WHICH THE CONFESSION IS EXCLUDED, IS
REQUIRED.  P. 394. 

JACKSON V. DENNO, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, JACKSON, HAS FILED A PETITION FOR HABEAS CORPUS IN THE
FEDERAL DISTRICT COURT ASSERTING THAT HIS CONVICTION FOR MURDER IN THE
NEW YORK COURTS IS INVALID BECAUSE IT WAS FOUNDED UPON A CONFESSION NOT
PROPERLY DETERMINED TO BE VOLUNTARY.  THE WRIT WAS DENIED, 206 F. SUPP.
759 (D.C.S.D.N.Y.), THE COURT OF APPEALS AFFIRMED, 309 F.2D 573 (C.A.2D
CIR.), AND WE GRANTED CERTIORARI TO CONSIDER FUNDAMENTAL QUESTIONS
ABOUT THE CONSTITUTIONALITY OF THE NEW YORK PROCEDURE GOVERNING THE
ADMISSIBILITY OF A CONFESSION ALLEGED TO BE INVOLUNTARY.  (FN1)  371
U.S. 967. 

                    I. 

ON JUNE 14, 1960, AT ABOUT 1 A.M., PETITIONER, JACKSON, AND NORA
ELLIOTT ENTERED A BROOKLYN HOTEL WHERE MISS ELLIOTT REGISTERED FOR BOTH
OF THEM.  AFTER TELLING MISS ELLIOTT TO LEAVE, WHICH SHE DID, JACKSON
DREW A GUN AND TOOK MONEY FROM THE ROOM CLERK.  HE ORDERED THE CLERK
AND SEVERAL OTHER PEOPLE INTO AN UPSTAIRS ROOM AND LEFT THE HOTEL, ONLY
TO ENCOUNTER MISS ELLIOTT AND LATER A POLICEMAN ON THE STREET.  A
STRUGGLE WITH THE LATTER FOLLOWED, IN THE COURSE OF WHICH BOTH MEN DREW
GUNS.  THE POLICEMAN WAS FATALLY WOUNDED AND PETITIONER WAS SHOT TWICE
IN THE BODY.  HE MANAGED TO HAIL A CAB, HOWEVER, WHICH TOOK HIM TO THE
HOSPITAL. 

A DETECTIVE QUESTIONED JACKSON AT ABOUT 2 A.M., SOON AFTER HIS
ARRIVAL AT THE HOSPITAL.  JACKSON, WHEN ASKED FOR HIS NAME, SAID,
"NATHAN JACKSON, I SHOT THE COLORED COP.  I GOT THE DROP ON HIM."  HE
ALSO ADMITTED THE ROBBERY AT THE HOTEL.  ACCORDING TO THE DETECTIVE,
JACKSON WAS IN "STRONG" CONDITION DESPITE HIS WOUNDS. 

JACKSON WAS GIVEN 50 MILLIGRAMS OF DEMEROL AND 1/50 OF A GRAIN OF
SCOPOLAMINE AT 3:55 A.M. IMMEDIATELY THEREAFTER AN ASSISTANT DISTRICT
ATTORNEY, IN THE PRESENCE OF POLICE OFFICERS AND HOSPITAL PERSONNEL,
QUESTIONED JACKSON, THE INTERROGATION BEING RECORDED BY A
STENOGRAPHER.  JACKSON, WHO HAD BEEN SHOT IN THE LIVER AND LUNG, HAD BY
THIS TIME LOST ABOUT 500 CC. OF BLOOD.  JACKSON AGAIN ADMITTED THE
ROBBERY IN THE HOTEL, AND THEN SAID, "LOOK, I CAN'T GO ON."  BUT IN
RESPONSE TO FURTHER QUESTIONS HE ADMITTED SHOOTING THE POLICEMAN AND
HAVING FIRED THE FIRST SHOT.  (FN2)  THE INTERVIEW WAS COMPLETED AT 4
A.M.  AN OPERATION UPON PETITIONER WAS BEGUN AT 5 A.M. AND COMPLETED AT
8 A.M. 

JACKSON AND MISS ELLIOTT WERE INDICTED FOR MURDER IN THE FIRST DEGREE
AND WERE TRIED TOGETHER.  THE STATEMENTS MADE BY JACKSON, BOTH AT 2 AND
3:55 A.M., WERE INTRODUCED IN EVIDENCE WITHOUT OBJECTION BY JACKSON'S
COUNSEL.  JACKSON TOOK THE STAND IN HIS OWN DEFENSE.  HIS ACCOUNT OF
THE ROBBERY AND OF THE SHOOTING OF THE POLICEMAN DIFFERED IN SOME
IMPORTANT RESPECTS FROM HIS CONFESSION.  ACCORDING TO JACKSON'S
TESTIMONY, THERE WAS A SUBSTANTIAL INTERVAL OF TIME BETWEEN HIS LEAVING
THE HOTEL AND THE SHOOTING, AND THE POLICEMAN ATTEMPTED TO DRAW HIS GUN
FIRST AND FIRED THE FIRST SHOT.  AS TO THE QUESTIONING AT THE HOSPITAL,
JACKSON RECALLED THAT HE WAS IN PAIN AND GASPING FOR BREATH AT THE TIME
AND WAS REFUSED WATER AND TOLD HE WOULD NOT BE LET ALONE UNTIL THE
POLICE HAD THE ANSWERS THEY WANTED.  HE KNEW THAT HE HAD BEEN
INTERROGATED BUT COULD REMEMBER NEITHER THE QUESTIONS NOR THE ANSWERS. 

TO COUNTER JACKSON'S SUGGESTION THAT HE HAD BEEN PRESSURED INTO
ANSWERING QUESTIONS, THE STATE OFFERED THE TESTIMONY OF THE ATTENDING
PHYSICIAN AND OF SEVERAL OTHER PERSONS.  THEY AGREED THAT JACKSON WAS
REFUSED WATER, BUT BECAUSE OF THE IMPENDING OPERATION RATHER THAN HIS
REFUSAL TO ANSWER QUESTIONS.  ON CROSS-EXAMINATION OF THE DOCTOR,
JACKSON'S COUNSEL, WITH THE HELP OF THE HOSPITAL RECORDS, ELICITED THE
FACT THAT DEMEROL AND SCOPOLAMINE WERE ADMINISTERED TO JACKSON
IMMEDIATELY BEFORE HIS INTERROGATION.  BUT ANY EFFECT OF THESE DRUGS ON
JACKSON DURING THE INTERROGATION WAS DENIED.  (FN3) 

ALTHOUGH JACKSON'S COUNSEL DID NOT SPECIFICALLY OBJECT TO THE
ADMISSION OF THE CONFESSION INITIALLY, THE TRIAL COURT INDICATED ITS
AWARENESS THAT JACKSON'S COUNSEL WAS QUESTIONING THE CIRCUMSTANCES
UNDER WHICH JACKSON WAS INTERROGATED.  (FN4) 

IN HIS CLOSING ARGUMENT, JACKSON'S COUNSEL DID NOT ASK FOR AN
ACQUITTAL BUT FOR A VERDICT OF SECOND-DEGREE MURDER OR MANSLAUGHTER. 
COUNSEL'S MAIN EFFORT WAS TO NEGATIVE THE PREMEDITATION AND INTENT
NECESSARY TO FIRST-DEGREE MURDER AND TO SEPARATE THE ROBBERY FELONY
FROM THE KILLING.  HE MADE MUCH OF THE TESTIMONY TENDING TO SHOW A
SUBSTANTIAL INTERVAL BETWEEN LEAVING THE HOTEL AND THE BEGINNING OF THE
STRUGGLE WITH THE POLICEMAN.  THE DETAILS OF THAT STRUGGLE AND THE
TESTIMONY INDICATING THE POLICEMAN FIRED THE FIRST SHORT WERE ALSO
STRESSED. 

CONSISTENT WITH THE NEW YORK PRACTICE WHERE A QUESTION HAS BEEN
RAISED ABOUT THE VOLUNTARINESS OF A CONFESSION, THE TRIAL COURT
SUBMITTED THAT ISSUE TO THE JURY ALONG WITH THE OTHER ISSUES IN THE
CASE.  THE JURY WAS TOLD THAT IF IT FOUND THE CONFESSION INVOLUNTARY,
IT WAS TO DISREGARD IT ENTIRELY, AND DETERMINE GUILT OR INNOCENCE
SOLELY FROM THE OTHER EVIDENCE IN THE CASE; ALTERNATIVELY, IF IT FOUND
THE CONFESSION VOLUNTARY, IT WAS TO DETERMINE ITS TRUTH OR RELIABILITY
AND AFFORD IT WEIGHT ACCORDINGLY.  (FN5) 

THE JURY FOUND JACKSON GUILTY OF MURDER IN THE FIRST DEGREE, MISS
ELLIOTT OF MANSLAUGHTER IN THE FIRST DEGREE.  JACKSON WAS SENTENCED TO
DEATH, MISS ELLIOTT TO A PRISON TERM.  JACKSON'S CONVICTION WAS
AFFIRMED BY THE NEW YORK COURT OF APPEALS, 10 N.Y.2D 780, 177 N.E.2D
59, ITS REMITTITUR BEING AMENDED TO SHOW THAT IT HAD NECESSARILY PASSED
UPON THE VOLUNTARINESS OF THE CONFESSION AND HAD FOUND THAT JACKSON'S
CONSTITUTIONAL RIGHTS HAD NOT BEEN VIOLATED.  10 N.Y.2D 816, 178 N.E.2D
234.  CERTIORARI WAS DENIED HERE.  368 U.S. 949.  JACKSON THEN FILED A
PETITION FOR HABEAS CORPUS, CLAIMING THAT THE NEW YORK PROCEDURE FOR
DETERMINING THE VOLUNTARINESS OF A CONFESSION WAS UNCONSTITUTIONAL AND
THAT IN ANY EVENT HIS CONFESSION WAS INVOLUNTARY.  AFTER HEARING
ARGUMENT AND EXAMINING THE STATE COURT RECORD THE DISTRICT COURT DENIED
THE PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING.  INDICATING THAT
IT IS THE TRIER OF FACT WHO MUST DETERMINE THE TRUTH OF THE TESTIMONY
OF PRISONER AND OFFICIAL ALIKE AND RESOLVE CONFLICTS IN THE TESTIMONY,
THE COURT FOUND "NO CLEAR AND CONCLUSIVE PROOF THAT THESE STATEMENTS
WERE EXTORTED FROM HIM, OR THAT THEY WERE GIVEN INVOLUNTARILY."  NOR
WAS ANY CONSTITUTIONAL INFIRMITY FOUND IN THE NEW YORK PROCEDURE.  206
F. SUPP. 759 (D.C.S.D.N.Y.).  THE COURT OF APPEALS, AFTER NOTING THE
CONFLICTING TESTIMONY CONCERNING THE COERCION ISSUE AND APPARENTLY
ACCEPTING THE STATE'S VERSION OF THE FACTS, AFFIRMED THE CONVICTION. 
309 F.2D 573 (C.A.2D CIR.).

                                        II. 

IT IS NOW AXIOMATIC THAT A DEFENDANT IN A CRIMINAL CASE IS DEPRIVED
OF DUE PROCESS OF LAW IF HIS CONVICTION IS FOUNDED, IN WHOLE OR IN
PART, UPON AN INVOLUNTARY CONFESSION, WITHOUT REGARD FOR THE TRUTH OR
FALSITY OF THE CONFESSION, ROGERS, V. RICHMOND, 365 U.S. 534, AND EVEN
THOUGH THERE IS AMPLE EVIDENCE ASIDE FROM THE CONFESSION TO SUPPORT THE
CONVICTION.  MALINSKI V. NEW YORK, 324 U.S. 401; STROBLE V. CALIFORNIA,
343 U.S. 181; PAYNE V. ARKANSAS, 356 U.S. 560.  EQUALLY CLEAR IS THE
DEFENDANT'S CONSTITUTIONAL RIGHT AT SOME STAGE IN THE PROCEEDINGS TO
OBJECT TO THE USE OF THE CONFESSION AND TO HAVE A FAIR HEARING AND A
RELIABLE DETERMINATION ON THE ISSUE OF VOLUNTARINESS, A DETERMINATION
UNINFLUENCED BY THE TRUTH OR FALSITY OF THE CONFESSION.  ROGERS V.
RICHMOND, SUPRA. IN OUR VIEW, THE NEW YORK PROCEDURE EMPLOYED IN THIS
CASE DID NOT AFFORD A RELIABLE DETERMINATION OF THE VOLUNTARINESS OF
THE CONFESSION OFFERED IN EVIDENCE AT THE TRIAL, DID NOT ADEQUATELY
PROTECT JACKSON'S RIGHT TO BE FREE OF A CONVICTION BASED UPON A COERCED
CONFESSION AND THEREFORE CANNOT WITHSTAND CONSTITUTIONAL ATTACK UNDER
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  WE THEREFORE
REVERSE THE JUDGMENT BELOW DENYING THE WRIT OF HABEAS CORPUS. 

                            III. 

UNDER THE NEW YORK RULE, THE TRIAL JUDGE MUST MAKE A PRELIMINARY
DETERMINATION REGARDING A CONFESSION OFFERED BY THE PROSECUTION AND
EXCLUDE IT IF IN NO CIRCUMSTANCES COULD THE CONFESSION BE DEEMED
VOLUNTARY.  (FN6)  BUT IF THE EVIDENCE PRESENTS A FAIR QUESTION AS TO
ITS VOLUNTARINESS, AS WHERE CERTAIN FACTS BEARING ON THE ISSUE ARE IN
DISPUTE OR WHERE REASONABLE MEN COULD DIFFER OVER THE INFERENCES TO BE
DRAWN FROM UNDISPUTED FACTS, THE JUDGE "MUST RECEIVE THE CONFESSION AND
LEAVE TO THE JURY, UNDER PROPER INSTRUCTIONS, THE ULTIMATE
DETERMINATION OF ITS VOLUNTARY CHARACTER AND ALSO ITS TRUTHFULNESS." 
(FN7)  STEIN V. NEW YORK, 346 U.S. 156, 172.  IF AN ISSUE OF COERCION
IS PRESENTED, THE JUDGE MAY NOT RESOLVE CONFLICTING EVIDENCE OR ARRIVE
AT HIS INDEPENDENT APPRAISAL OF THE VOLUNTARINESS OF THE CONFESSION,
ONE WAY OR THE OTHER.  THESE MATTERS HE MUST LEAVE TO THE JURY. 

THIS PROCEDURE HAS A SIGNIFICANT IMPACT UPON THE DEFENDANT'S
FOURTEENTH AMENDMENT RIGHTS.  IN JURISDICTIONS FOLLOWING THE ORTHODOX
RULE, UNDER WHICH THE JUDGE HIMSELF SOLELY AND FINALLY DETERMINES THE
VOLUNTARINESS OF THE CONFESSION, OR THOSE FOLLOWING THE MASSACHUSETTS
PROCEDURE, (FN8) UNDER WHICH THE JURY PASSES ON VOLUNTARINESS ONLY
AFTER THE JUDGE HAS FULLY AND INDEPENDENTLY RESOLVED THE ISSUE AGAINST
THE ACCUSED, (FN9) THE JUDGE'S CONCLUSIONS ARE CLEARLY EVIDENT FROM THE
RECORD SINCE HE EITHER ADMITS THE CONFESSION INTO EVIDENCE IF IT IS
VOLUNTARY OR REJECTS IT IF INVOLUNTARY.  MOREOEVER, HIS FINDINGS UPON
DISPUTED ISSUES OF FACT ARE EXPRESSLY STATED OR MAY BE ASCERTAINABLE
FROM THE RECORD.  IN CONTRAST, THE NEW YORK JURY RETURNS ONLY A GENERAL
VERDICT UPON THE ULTIMATE QUESTION OF GUILT OR INNOCENCE.  IT IS
IMPOSSIBLE TO DISCOVER WHETHER THE JURY FOUND THE CONFESSION VOLUNTARY
AND RELIED UPON IT, OR INVOLUNTARY AND SUPPOSEDLY IGNORED IT.  NOR IS
THERE ANY INDICATION OF HOW THE JURY RESOLVED DISPUTES IN THE EVIDENCE
CONCERNING THE CRITICAL FACTS UNDERLYING THE COERCION ISSUE.  INDEED,
THERE IS NOTHING TO SHOW THAT THESE MATTERS WERE RESOLVED AT ALL, ONE
WAY OR THE OTHER. 

THESE UNCERTAINTIES INHERENT IN THE NEW YORK PROCEDURE WERE APTLY
DESCRIBED BY THE COURT IN STEIN V. NEW YORK, 346 U.S. 156, 177-178: 

"PETITIONERS SUFFER A DISADVANTAGE INSEPARABLE FROM THE ISSUE 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  ...  . 

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." 

A DEFENDANT OBJECTING TO THE ADMISSION OF A CONFESSION IS ENTITLED TO
A FAIR HEARING IN WHICH BOTH THE UNDERLYING FACTUAL ISSUES AND THE
VOLUNTARINESS OF HIS CONFESSION ARE ACTUALLY AND RELIABLY DETERMINED. 
BUT DID THE JURY IN JACKSON'S CASE MAKE THESE CRITICAL DETERMINATIONS,
AND IF IT DID, WHAT WERE THESE DETERMINATIONS? 

NOTWITHSTANDING THESE ACKNOWLEDGED DIFFICULTIES INHERENT IN THE NEW
YORK PROCEDURE, THE COURT IN STEIN FOUND NO CONSTITUTIONAL DEPRIVATION
TO THE DEFENDANT.  THE COURT PROCEEDED TO THIS CONCLUSION ON THE BASIS
OF ALTERNATIVE ASSUMPTIONS REGARDING THE MANNER IN WHICH THE JURY MIGHT
HAVE RESOLVED THE COERCION ISSUE.  EITHER THE JURY DETERMINED THE
DISPUTED ISSUES OF FACT AGAINST THE ACCUSED, FOUND THE CONFESSION
VOLUNTARY AND THEREFORE PROPERLY RELIED UPON IT; OR IT FOUND THE
CONTESTED FACTS IN FAVOR OF THE ACCUSED AND DEEMED THE CONFESSION
INVOLUNTARY, IN WHICH EVENT IT DISREGARDED THE CONFESSION IN ACCORDANCE
WITH ITS INSTRUCTIONS AND ADJUDICATED GUILT BASED SOLELY ON THE OTHER
EVIDENCE.  ON EITHER ASSUMPTION THE COURT FOUND NO ERROR IN THE
JUDGMENT OF THE STATE COURT. 

WE DISAGREE WITH THE COURT IN STEIN; FOR IN ADDITION TO SWEEPING
ASIDE ITS OWN EXPRESS DOUBTS THAT THE JURY ACTED AT ALL IN THE
CONFESSION MATTER THE COURT, WE THINK, FAILED TO TAKE PROPER ACCOUNT OF
THE DANGERS TO AN ACCUSED'S RIGHTS UNDER EITHER THE ALTERNATIVE
ASSUMPTIONS. 

ON THE ASSUMPTION THAT THE JURY FOUND THE CONFESSION VOLUNTARY, THE
COURT CONCLUDED THAT IT COULD PROPERLY DO SO.  BUT THIS JUDGMENT WAS
ARRIVED AT ONLY ON THE FURTHER ASSUMPTIONS THAT THE JURY HAD ACTUALLY
FOUND THE DISPUTED ISSUES OF FACT AGAINST THE ACCUSED AND THAT THESE
FINDINGS WERE RELIABLY ARRIVED AT IN ACCORDANCE WITH CONSIDERATIONS
THAT ARE PERMISSIBLE AND PROPER UNDER FEDERAL LAW.  THESE ADDITIONAL
ASSUMPTIONS, IN OUR VIEW, WERE UNSOUND.    THE NEW YORK JURY IS AT ONCE
GIVEN BOTH THE EVIDENCE GOING TO VOLUNTARINESS AND ALL OF THE
CORROBORATING EVIDENCE SHOWING THAT THE CONFESSION IS TRUE AND THAT THE
DEFENDANT COMMITTED THE CRIME.  THE JURY MAY THEREFORE BELIEVE THE
CONFESSION AND BELIEVE THAT THE DEFENDANT HAS COMMITTED THE VERY ACT
WITH WHICH HE IS CHARGED, A CIRCUMSTANCE WHICH MAY SERIOUSLY DISTORT
JUDGMENT OF THE CREDIBILITY OF THE ACCUSED AND ASSESSMENT OF THE
TESTIMONY CONCERNING THE CRITICAL FACTS SURROUNDING HIS CONFESSION. 
IN THOSE CASES WHERE WITHOUT THE CONFESSION THE EVIDENCE IS
INSUFFFICIENT, THE DEFENDANT SHOULD NOT BE CONVICTED IF THE JURY
BELIEVES THE CONFESSION BUT FINDS IT TO BE INVOLUNTARY.  THE JURY,
HOWEVER, MAY FIND IT DIFFICULT TO UNDERSTAND THE POLICY FORBIDDING
RELIANCE UPON A COERCED, BUT TRUE, CONFESSION, A POLICY WHICH HAS
DIVIDED THIS COURT IN THE PAST, SEE STEIN V. NEW YORK, SUPRA, AND AN
ISSUE WHICH MAY BE REARGUED IN THE JURY ROOM.  THAT A TRUSTWORTHY
CONFESSION MUST ALSO BE VOLUNTARY IF IT IS TO BE USED AT ALL, GENERATES
NATURAL AND POTENT PRESSURE TO FIND IT VOLUNTARY.  OTHERWISE THE GUILTY
DEFENDANT GOES FREE.  OBJECTIVE CONSIDERATION OF THE CONFLICTING
EVIDENCE CONCERNING THE CIRCUMSTANCES OF THE CONFESSION BECOMES
DIFFICULT AND THE IMPLICIT FINDINGS BECOME SUSPECT.  (FN10) 

THE DANGER THAT MATTERS PERTAINING TO THE DEFENDANT'S GUILT WILL
INFECT THE JURY'S FINDINGS OF FACT BEARING UPON VOLUNTARINESS, AS WELL
AS ITS CONCLUSION UPON THAT ISSUE ITSELF, IS SUFFICIENTLY SERIOUS TO
PRECLUDE THEIR UNQUALIFIED ACCEPTANCE UPON REVIEW IN THIS COURT,
REGARDLESS OF WHETHER THERE IS OR IS NOT SUFFICIENT OTHER EVIDENCE TO
SUSTAIN A FINDING OF GUILT.  IN JACKSON'S CASE, HE CONFESSED TO HAVING
FIRED THE FIRST SHOT, A MATTER VERY RELEVANT TO THE CHARGE OF FIRST
DEGREE MURDER.  THE JURY ALSO HEARD THE EVIDENCE OF EYEWITNESSES TO THE
SHOOTING.  JACKSON'S TESTIMONY GOING TO HIS PHYSICAL AND MENTAL
CONDITION WHEN HE CONFESSED AND TO THE EVENTS WHICH TOOK PLACE AT THAT
TIME, BEARING UPON THE ISSUE OF VOLUNTARINESS, WAS DISPUTED BY THE
PROSECUTION.  THE OBIVOUS AND SERIOUS DANGER IS THAT THE JURY
DISREGARDED OR DISBELIEVED JACKSON'S TESTIMONY PERTAINING TO THE
CONFESSION BECAUSE IT BELIEVED HE HAD DONE PRECISELY WHAT HE WAS
CHARGED WITH DOING. 

THE FAILURE TO INQUIRE INTO THE RELIABILITY OF THE JURY'S RESOLUTION
OF DISPUTED FACTUAL CONSIDERATIONS UNDERLYING ITS CONCLUSION AS TO
VOLUNTARINESS - FINDINGS WHICH WERE AFFORDED DECISIVE WEIGHT BY THE
COURT IN STEIN - WAS NOT A MERE OVERSIGHT BUT STEMMED FROM THE PREMISE
UNDERLYING THE STEIN OPINION THAT THE EXCLUSION OF INVOLUNTARY
CONFESSIONS IS CONSTITUTIONALLY REQUIRED SOLELY BECAUSE OF THE INHERENT
UNTRUSTWORTHINESS OF A COERCED CONFESSION.  IT FOLLOWED FROM THIS
PREMISE THAT A RELIABLE OR TRUE CONFESSION NEED NOT BE REJECTED AS
INVOLUNTARY AND THAT EVIDENCE CORROBORATING THE TRUTH OR FALSITY OF THE
CONFESSION AND THE GUILT OR INNOCENCE OF THE ACCUSED IS INDEED
PERTINENT TO THE DETERMINATION OF THE COERCION ISSUE.  (FN11)  THIS
APPROACH IN STEIN DREW A SHARP DISSENT FROM MR. JUSTICE FRANKFURTER,
WHO ADMONISHED THAT CONSIDERATIONS OF TRUTH OR FALSITY OF THE
ADMISSIONS ARE TO BE PUT ASIDE IN DETERMINING THE QUESTION OF
COERCION: 

"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."  346 U.S., AT 200. 

THIS UNDERPINNING OF STEIN PROVED TO BE A SHORT-LIVED DEPARTURE FROM
PRIOR VIEWS OF THE COURT, SEE MALINSKI V. NEW YORK, 324 U.S. 401; LYONS
V. OKLAHOMA, 322 U.S. 596, 597; GALLEGOS V. NEBRASKA, 342 U.S. 55, 63,
AND WAS UNEQUIVOCALLY PUT TO REST IN ROGERS V. RICHMOND, SUPRA, WHERE
IT WAS HELD THAT THE RELIABILITY OF A CONFESSION HAS NOTHING TO DO WITH
ITS VOLUNTARINESS - PROOF THAT A DEFENDANT COMMITTED THE ACT WITH WHICH
HE IS CHARGED AND TO WHICH HE HAS CONFESSED IS NOT TO BE CONSIDERED
WHEN DECIDING WHETHER A DEFENDANT'S WILL HAS BEEN OVERBORNE. 
REFLECTING HIS DISSENT IN STEIN, MR. JUSTICE FRANKFURTER WROTE FOR A
UNANIMOUS COURT ON THIS ISSUE IN ROGERS, SUPRA: 

"THE WEIGHT ATTRIBUTED TO THE IMPERMISSIBLE CONSIDERATION OF TRUTH
AND FALSITY  ...  ENTERING INTO THE CONNECTICUT TRIAL COURT'S
DELIBERATIONS CONCERNING THE ADMISSIBILITY OF THE CONFESSIONS, MAY WELL
HAVE DISTORTED, BY PUTTING IN IMPROPER PERSPECTIVE, EVEN ITS FINDINGS
OF HISTORICAL FACT.  ANY CONSIDERATION OF THIS 'RELIABILITY' ELEMENT
WAS CONSTITUTIONALLY PRECLUDED, PRECISELY BECAUSE THE FORCE WHICH IT
CARRIED WITH THE TRIAL JUDGE CANNOT BE KNOWN."  365 U.S., AT 545. 
(FN12) 

IT IS NOW INESCAPABLY CLEAR THAT THE FOURTEENTH AMENDMENT FORBIDS THE
USE OF INVOLUNTARY CONFESSIONS NOT ONLY BECAUSE OF THE PROBABLE
UNRELIABILITY OF CONFESSIONS THAT ARE OBTAINED IN A MANNER DEEMED
COERCIVE, BUT ALSO BECAUSE OF THE "STRONGLY FELT ATTITUDE OF OUR
SOCIETY THAT IMPORTANT HUMAN VALUES ARE SACRIFICED WHERE AN AGENCY OF
THE GOVERNMENT, IN THE COURSE OF SECURING A CONVICTION, WRINGS A
CONFESSION OUT OF AN ACCUSED AGAINST HIS WILL," BLACKBURN V. ALABAMA,
361 U.S. 199, 206-207, AND BECAUSE OF "THE DEEP-ROOTED FEELING THAT THE
POLICE MUST OBEY THE LAW WHILE ENFORCING THE LAW; THAT IN THE END LIFE
AND LIBERTY CAN BE AS MUCH ENDANGERED FROM ILLEGAL METHODS USED TO
CONVICT THOSE THOUGHT TO BE CRIMINALS HAS FROM THE ACTUAL CRIMINALS
THEMSELVES."  SPANO V. NEW YORK, 360 U.S. 315, 320-321.  BECAUSE IT DID
NOT RECOGNIZE THIS "COMPLEX OF VALUES," BLACKBURN, SUPRA, UNDERLYING
THE EXCLUSION OF INVOLUNTARY CONFESSIONS, STEIN ALSO IGNORED THE
PITFALLS IN GIVING DECISIVE WEIGHT TO THE JURY'S ASSUMED DETERMINATION
OF THE FACTS SURROUNDING THE DISPUTED CONFESSION. 

UNDER THE NEW YORK PROCEDURE, THE EVIDENCE GIVEN THE JURY INEVITABLY
INJECTS IRRELEVANT AND IMPERMISSIBLE CONSIDERATIONS OF TRUTHFULNESS OF
THE CONFESSION INTO THE ASSESSMENT OF VOLUNTARINESS.   INDEED THE JURY
IS TOLD TO DETERMINE THE TRUTHFULNESS OF THE CONFESSION IN ASSESSING
ITS PROBATIVE VALUE.  (FN13)  AS A CONSEQUENCE, IT CANNOT BE ASSUMED,
AS THE STEIN COURT ASSUMED, THAT THE JURY RELIABLY FOUND THE FACTS
AGAINST THE ACCUSED.  (FN14)  THIS UNSOUND ASSUMPTION UNDERMINES
STEIN'S AUTHORITY AS A PRECEDENT AND ITS VIEW ON THE CONSTITUTIONALITY
OF THE NEW YORK PRECEDURE.  THE ADMIXTURE OF RELIABILITY AND
VOLUNTARINESS IN THE CONSIDERATIONS OF THE JURY WOULD ITSELF ENTITLE A
DEFENDANT TO FURTHER PROCEEDINGS IN ANY CASE IN WHICH THE ESSENTIAL
FACTS ARE DISPUTED, FOR WE CANNOT DETERMINE HOW THE JURY RESOLVED THESE
ISSUES AND WILL NOT ASSUME THAT THEY WERE RELIABLY AND PROPERLY
RESOLVED AGAINST THE ACCUSED.  AND IT IS ONLY A RELIABLE DETERMINATION
ON THE VOLUNTARINESS ISSUE WHICH SATISFIES THE CONSTITUTIONAL RIGHTS OF
THE DEFENDANT AND WHICH WOULD PERMIT THE JURY TO CONSIDER THE
CONFESSION IN ADJUDICATING GUILT OR INNOCENCE. 

BUT WE DO NOT REST ON THIS GROUND ALONE, FOR THE OTHER ALTERNATIVE
HYPOTHESIZED IN STEIN - THAT THE JURY FOUND THE CONFESSION INVOLUNTARY
AND DISREGARDED IT - IS EQUALLY UNACCPETABLE.  UNDER THE NEW YORK
PROCEDURE, THE FACT OF A DEFENDANT'S CONFESSION IS SOLIDLY IMPLANTED IN
THE JURY'S MIND, FOR IT HAS NOT ONLY HEARD THE CONFESSION, BUT IT HAS
BEEN INSTRUCTED TO CONSIDER AND JUDGE ITS VOLUNTARINESS AND IS IN
POSITION TO ASSESS WHETHER IT IS TRUE OR FALSE.  IF IT FINDS THE
CONFESSION INVOLUNTARY, DOES THE JURY - INDEED, CAN IT - THEN DISREGARD
THE CONFESSION IN ACCORDANCE WITH ITS INSTRUCTIONS?  IF THERE ARE
LINGERING DOUBTS ABOUT THE SUFFICIENCY OF THE OTHER EVIDENCE, DOES THE
JURY UNCONSCIOUSLY LAY THEM TO REST BY RESORT TO THE CONFESSION?  WILL
UNCERTAINTY ABOUT THE SUFFICIENCY OF THE OTHER EVIDENCE TO PROVE GUILT
BEYOND A REASONABLE DOUBT ACTUALLY RESULT IN ACQUITTAL WHEN THE JURY
KNOWS THE DEFENDANT HAS GIVEN A TRUTHFUL CONFESSION?  (FN15) 

IT IS DIFFICULT, IF NOT IMPOSSIBLE, TO PROVE THAT A CONFESSION WHICH
A JURY HAS FOUND TO BE INVOLUNTARY HAS NEVERTHELESS INFLUENCED THE
VERDICT OR THAT ITS FINDING OF VOLUNTARINESS, IF THIS IS THE COURSE IT
TOOK, WAS AFFECTED BY THE OTHER EVIDENCE SHOWING THE CONFESSION WAS
TRUE.  BUT THE NEW YORK PROCEDURE POSES SUBSTANTIAL THREATS TO A
DEFENDANT'S CONSTITUTIONAL RIGHTS TO HAVE AN INVOLUNTARY CONFESSION
ENTIRELY DISREGARDED AND TO HAVE THE COERCION ISSUE FAIRLY AND RELIABLY
DETERMINED.  THESE HAZARDS WE CANNOT IGNORE.  (FN16) 

AS REFLECTED IN THE CASES IN THIS COURT, POLICE CONDUCT REQUIRING
EXCLUSION OF A CONFESSION HAS EVOLVED FROM ACTS OF CLEAR PHYSICAL
BRUTALITY TO MORE REFINED AND SUBTLE METHODS OF OVERCOMING A
DEFENDANT'S WILL. 

"THIS COURT HAS RECOGNIZED THAT COERCION CAN BE MENTAL AS WELL AS
PHYSICAL, AND THAT THE BLOOD OF THE ACCUSED IS NOT THE ONLY HALLMARK ON
AN UNCONSTITUTIONAL INQUISITION.  A NUMBER OF CASES HAVE DEMONSTRATED,
IF DEMONSTRATION WERE NEEDED, THAT THE EFFICIENCY OF THE RACK AND THE
THUMBSCREW CAN BE MATCHED, GIVEN THE PROPER SUBJECT, BY MORE
SOPHISTICATED MODES OF 'PERSUASION.'"  BLACKBURN V. ALABAMA, 361 U.S.
199, 206.  (FN17) 

EXPANDED CONCEPTS OF FAIRNESS IN OBTAINING CONFESSIONS HAVE BEEN
ACCOMPANIED BY A CORRESPONDINGLY GREATER COMPLEXITY IN DETERMINING
WHETHER AN ACCUSED'S WILL HAS BEEN OVERBORNE - FACTS ARE FREQUENTLY
DISPUTED, QUESTIONS OF CREDIBILITY ARE OFTEN CRUCIAL, AND INFERENCES TO
BE DRAWN FROM ESTABLISHED FACTS ARE OFTEN DETERMINATIVE.  THE OVERALL
DETERMINATION OF THE VOLUNTARINESS OF A CONFESSION HAS THUS BECOME AN
EXCEEDINGLY SENSITIVE TASK, ONE THAT REQUIRES FACING THE ISSUE
SQUARELY, IN ILLUMINATING ISOLATION AND UNBECLOUDED BY OTHER ISSUES AND
THE EFFECT OF EXTRANEOUS BUT PREJUDICIAL EVIDENCE.  SEE WILSON V.
UNITED STATES, 162 U.S. 613; UNITED STATES V. CARIGNAN, 342 U.S. 36;
SMITH V. UNITED STATES, 348 U.S. 147.  (FN18)  WHERE PURE FACTUAL
CONSIDERATIONS ARE AN IMPORTANT INGREDIENT, WHICH IS TRUE IN THE USUAL
CASE, APPELLATE REVIEW IN THIS COURT IS, AS A PRACTICAL MATTER, AN
INADEQUATE SUBSTITUTE FOR A FULL AND RELIABLE DETERMINATION OF THE
VOLUNTARINESS ISSUE IN THE TRIAL COURT AND THE TRIAL COURT'S
DETERMINATION, PRO TANTO, TAKES ON AN INCREASING FINALITY.  THE
PROCEDURES USED IN THE TRIAL COURT TO ARRIVE AT ITS CONCLUSIONS ON THE
COERCION ISSUE PROGRESSIVELY TAKE ON ADDED SIGNIFICANCE AS THE ACTUAL
MEASURE OF THE PROTECTION AFFORDED A DEFENDANT UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT AGAINST THE USE OF INVOLUNTARY
CONFESSIONS.  THESE PROCEDURES MUST, THEREFORE, BE FULLY ADEQUATE TO
INSURE A RELIABLE AND CLEAR-CUT DETERMINATION OF THE VOLUNTARINESS OF
THE CONFESSION, INCLUDING THE RESOLUTION OF DISPUTED FACTS UPON WHICH
THE VOLUNTARINESS ISSUE MAY DEPEND.  (FN19)  IN OUR VIEW, THE NEW YORK
PROCEDURE FALLS SHORT OF SATISFYING THESE CONSTITUTIONAL REQUIREMENTS. 
STEIN V. NEW YORK IS OVERRULED. 

                                       IV. 

WE TURN TO CONSIDERATION OF THE DISPOSITION OF THIS CASE.  SINCE
JACKSON HAS NOT BEEN GIVEN AN ADEQUATE HEARING UPON THE VOLUNTARINESS
OF HIS CONFESSION HE MUST BE GIVEN ONE, THE REMAINING INQUIRY BEING THE
SCOPE OF THAT HEARING AND THE COURT WHICH SHOULD PROVIDE IT. 

THIS IS NOT THE CASE WHERE THE FACTS CONCERNING THE CIRCUMSTANCES
SURROUNDING THE CONFESSION ARE UNDISPUTED AND THE TASK IS ONLY TO JUDGE
THE VOLUNTARINESS OF THE CONFESSION BASED UPON THE CLEARLY ESTABLISHED
FACTS AND IN ACCORDANCE WITH PROPER CONSTITUTIONAL STANDARDS.  HERE
THERE ARE SUBSTANTIAL FACTS IN DISPUTE:  JACKSON SAID THAT HE WAS IN
PAIN FROM HIS WOUNDS, GASPING FOR BREATH AND UNABLE TO TALK LONG.  A
STATE WITNESS DESCRIBED JACKSON AS IN STRONG CONDITION DESPITE HIS
WOUNDS.  ACCORDING TO JACKSON, THE POLICE TOLD HIM HE COULD HAVE NO
WATER AND WOULD NOT BE LEFT ALONE UNTIL HE GAVE THE ANSWERS THE
AUTHORITIES DESIRED.  THESE VERBAL THREATS WERE DENIED BY THE STATE. 
WHEREAS JACKSON CLAIMED HIS WILL WAS AFFECTED BY THE DRUGS ADMINISTERED
TO HIM, THE STATE'S EVIDENCE WAS THAT THE DRUGS NEITHER HAD NOR COULD
HAVE HAD ANY EFFECT UPON HIM AT ALL.  WHETHER JACKSON IS ENTITLED TO
RELIEF DEPENDS UPON HOW THESE FACTS ARE RESOLVED, FOR IF THE STATE IS
TO BE BELIEVED WE CANNOT SAY THAT JACKSON'S CONFESSION WAS INVOLUNTARY,
WHEREAS IF JACKSON'S VERSION OF THE FACTS IS ACCEPTED THE CONFESSION
WAS INVOLUNTARY AND INADMISSIBLE.  (FN20) 

AS WE HAVE ALREADY SAID, JACKSON IS ENTITLED TO A RELIABLE RESOLUTION
OF THESE EVIDENTIARY CONFLICTS.  IF THIS CASE WERE HERE UPON DIRECT
REVIEW OF JACKSON'S CONVICTION, WE COULD NOT PROCEED WITH REVIEW ON THE
ASSUMPTION THAT THESE DISPUTES HAD BEEN RESOLVED IN FAVOR OF THE STATE
FOR AS WE HAVE HELD WE ARE NOT ONLY UNABLE TO TELL HOW THE JURY
RESOLVED THESE MATTERS BUT, EVEN IF THE JURY DID RESOLVE THEM AGAINST
JACKSON, ITS FINDINGS WERE INFECTED WITH IMPERMISSIBLE CONSIDERATIONS
AND ACCORDINGLY CANNOT BE CONTROLLING HERE.  CF.  ROGERS V. RICHMOND,
SUPRA.  LIKEWISE, A FEDERAL HABEAS CORPUS COURT, IN THE FACE OF THE
UNRELIABLE STATE COURT PROCEDURE, WOULD NOT BE JUSTIFIED IN DISPOSING
OF THE PETITION SOLELY UPON THE BASIS OF THE UNDISPUTED PORTIONS OF THE
RECORD.  AT THE VERY LEAST, TOWNSEND V. SAIN, 372 U.S. 293, WOULD
REQUIRE A FULL EVIDENTIARY HEARING TO DETERMINE THE FACTUAL CONTEXT IN
WHICH JACKSON'S CONFESSION WAS GIVEN. 

HOWEVER, WE THINK THAT THE FURTHER PROCEEDINGS TO WHICH JACKSON IS
ENTITLED SHOULD OCCUR INITIALLY IN THE STATE COURTS RATHER THAN IN THE
FEDERAL HABEAS CORPUS COURT.  JACKSON'S TRIAL DID NOT COMPORT WITH
CONSTITUTIONAL STANDARDS AND HE IS ENTITLED TO A DETERMINATION OF THE
VOLUNTARINESS OF HIS CONFESSION IN THE STATE COURTS IN ACCORDANCE WITH
VALID STATE PROCEDURES; THE STATE IS ALSO ENTITLED TO MAKE THIS
DETERMINATION BEFORE THIS COURT CONSIDERS THE CASE ON DIRECT REVIEW OR
A PETITION FOR HABEAS CORPUS IS FILED IN A FEDERAL DISTRICT COURT. 
THIS WAS THE DISPOSITION IN ROGERS V. RICHMOND, SUPRA, WHERE, IN A CASE
COMING TO THIS COURT FROM A DENIAL OF HABEAS CORPUS, THE COURT
ASCERTAINED A TRIAL ERROR OF CONSTITUTIONAL DIMENSION:  (FN21)    "A
STATE DEFENDANT SHOULD HAVE THE OPPORTUNITY TO HAVE ALL ISSUES WHICH
MAY BE DETERMINATIVE OF HIS GUILT TRIED BY A STATE JUDGE OR A STATE
JURY UNDER APPROPRIATE STATE PROCEDURES WHICH CONFORM TO THE
REQUIREMENTS OF THE FOURTEENTH AMENDMENT  ...  .  THE STATE, TOO, HAS A
WEIGHTY INTEREST IN HAVING VALID FEDERAL CONSTITUTIONAL CRITERIA
APPLIED IN THE ADMINISTRATION OF ITS CRIMINAL LAW BY ITS OWN COURTS AND
JURIES.  TO REQUIRE A FEDERAL JUDGE EXERCISING HABEAS CORPUS
JURISDICTION TO ATTEMPT TO COMBINE WITHIN HIMSELF THE PROPER FUNCTIONS
OF JUDGE AND JURY IN A STATE TRIAL - TO ASK HIM TO APPROXIMATE THE
SYMPATHIES OF THE DEFENDANT'S PEERS OR TO MAKE THE RULINGS WHICH THE
STATE TRIAL JUDGE MIGHT MAKE  ...  - IS POTENTIALLY TO PREJUDICE STATE
DEFENDANTS CLAIMING FEDERAL RIGHTS AND TO PRE-EMPT FUNCTIONS THAT
BELONG TO STATE MACHINERY IN THE ADMINISTRATION OF STATE CRIMINAL
LAW."  365 U.S., AT 547-548. 

IT IS NEW YORK, THEREFORE, NOT THE FEDERAL HABEAS CORPUS COURT, WHICH
SHOULD FIRST PROVIDE JACKSON WITH THAT WHICH HE HAS NOT YET HAD AND TO
WHICH HE IS CONSTITUTIONALLY ENTITLED - AN ADEQUATE EVIDENTIARY HEARING
PRODUCTIVE OF RELIABLE RESULTS CONCERNING THE VOLUNTARINESS OF HIS
CONFESSION.  IT DOES NOT FOLLOW, HOWEVER, THAT JACKSON IS AUTOMATICALLY
ENTITLED TO A COMPLETE NEW TRIAL INCLUDING A RETRIAL OF THE ISSUE OF
GUILT OR INNOCENCE.  JACKSON'S POSITION BEFORE THE DISTRICT COURT, AND
HERE, IS THAT THE ISSUE OF HIS CONFESSION SHOULD NOT HAVE BEEN DECIDED
BY THE CONVICTING JURY BUT SHOULD HAVE BEEN DETERMINED IN A PROCEEDING
SEPARATE AND APART FROM THE BODY TRYING GUILT OR INNOCENCE.  SO FAR WE
AGREE AND HOLD THAT HE IS NOW ENTITLED TO SUCH AN EVIDENTIARY HEARING
IN THE STATE COURT ON THE COERCION ISSUE, IT IS DETERMINED THAT
JACKSON'S CONFESSION WAS VOLUNTARILY GIVEN, ADMISSIBLE IN EVIDENCE, AND
PROPERLY TO BE CONSIDERED BY THE JURY, WE SEE NO CONSTITUTIONAL
NECESSITY AT THAT POINT FOR PROCEEDING WITH A NEW TRIAL, FOR JACKSON
HAS ALREADY BEEN TRIED BY A JURY WITH THE CONFESSION PLACED BEFORE IT
AND HAS BEEN FOUND GUILTY.  TRUE, THE JURY IN THE FIRST TRIAL WAS
PERMITTED TO DEAL WITH THE ISSUE OF VOLUNTARINESS AND WE DO NOT KNOW
WHETHER THE CONVICTION RESTED UPON THE CONFESSION; BUT IF IT DID, THERE
IS NO CONSTITUTIONAL PREJUDICE TO JACKSON FROM THE NEW YORK PROCEDURE
IF THE CONFESSION IS NOW PROPERLY FOUND TO BE VOLUNTARY AND THEREFORE
ADMISSIBLE.  IF THE JURY RELIED UPON IT, IT WAS ENTITLED TO DO SO.  OF
COURSE, IF THE STATE COURT, AT AN EVIDENTIARY HEARING, REDETERMINES THE
FACTS AND DECIDES THAT JACKSON'S CONFESSION WAS INVOLUNTARY, THERE MUST
BE A NEW TRIAL ON GUILT OR INNOCENCE WITHOUT THE CONFESSION'S BEING
ADMITTED IN EVIDENCE.  (FN22) 

OBVIOUSLY, THE STATE IS FREE TO GIVE JACKSON A NEW TRIAL IF IT SO
CHOOSES, BUT FOR US TO IMPOSE THIS REQUIREMENT BEFORE THE OUTCOME OF
THE NEW HEARING ON VOLUNTARINESS IS KNOWN WOULD NOT COMPORT WITH THE
INTERESTS OF SOUND JUDICIAL ADMINISTRATION AND THE PROPER RELATIONSHIP
BETWEEN FEDERAL AND STATE COURTS.  WE CANNOT ASSUME THAT NEW YORK WILL
NOT NOW AFFORD JACKSON SUCH A HEARING THAT IS CONSISTENT WITH THE
REQUIREMENTS OF DUE PROCESS.  INDEED, NEW YORK THOUGHT IT WAS AFFORDING
JACKSON SUCH A HEARING, AND NOT WITHOUT SUPPORT IN THE DECISIONS OF
THIS COURT, (FN23) WHEN IT SUBMITTED THE ISSUE OF VOLUNTARINESS TO THE
SAME JURY THAT ADJUDICATED GUILT.  IT IS BOTH PRACTICAL AND DESIRABLE
THAT IN CASES TO BE TRIED HEREAFTER A PROPER DETERMINATION OF
VOLUNTARINESS BE MADE PRIOR TO THE ADMISSION OF THE CONFESSION TO THE
JURY WHICH IS ADJUDICATING GUILT OR INNOCENCE.  BUT AS TO JACKSON, WHO
HAS ALREADY BEEN CONVICTED AND NOW SEEKS COLLATERAL RELIEF, WE CANNOT
SAY THAT THE CONSTITUTION REQUIRES A NEW TRIAL IF IN A SOUNDLY
CONDUCTED COLLATERAL PROCEEDING, THE CONFESSION WHICH WAS ADMITTED AT
THE TRIAL IS FAIRLY DETERMINED TO BE VOLUNTARY.  ACCORDINGLY, THE
JUDGMENT DENYING PETITIONER'S WRIT OF HABEAS CORPUS IS REVERSED AND THE
CASE IS REMANDED TO THE DISTRICT COURT TO ALLOW THE STATE A REASONABLE
TIME TO AFFORD JACKSON A HEARING OR A NEW TRIAL, FAILING WHICH JACKSON
IS ENTITLED TO HIS RELEASE.  REVERSED AND REMANDED. 

FN1  THERE IS NO CLAIM IN THIS COURT THAT THE CONSTITUTIONALITY OF
THE NEW YORK PROCEDURAL RULE GOVERNING ADMISSION OF CONFESSIONS IS NOT
PROPERLY BEFORE US.  ALTHOUGH IT APPEARS THAT THIS ISSUE WAS NOT
SEASONABLY TENDERED TO THE NEW YORK COURTS, EXHAUSTION REQUIREMENTS
WERE SATISFIED AND THE FEDERAL DISTRICT COURT RULED ON THE MERITS OF
THE ISSUE, AS OUR DECISION LAST TERM IN FAY V. NOIA, 372 U.S. 391,
CLEARLY REQUIRES: 

"WE HAVE CONSISTENTLY HELD THAT FEDERAL COURT JURISDICTION IS
CONFERRED BY THE ALLEGATION OF AN UNCONSTITUTIONAL RESTRAINT AND IS NOT
DEFEATED BY ANYTHING THAT MAY OCCUR IN THE STATE COURT PROCEEDINGS. 
STATE PROCEDURAL RULES PLAINLY MUST YIELD TO THIS OVERRIDING FEDERAL
POLICY."  ID., AT 426-427. 

NO ONE SUGGESTS THAT THE PETITIONER, JACKSON, "AFTER CONSULTATION
WITH COMPETENT COUNSEL OR OTHERWISE, UNDERSTANDINGLY AND KNOWINGLY
FOREWENT THE PRIVILEGE OF SEEKING TO VINDICATE HIS FEDERAL CLAIMS IN
THE STATE COURTS, WHETHER FOR STRATEGIC, TACTICAL, OR ANY OTHER REASONS
THAT CAN FAIRLY BE DESCRIBED AS THE DELIBERATE BY-PASSING OF STATE
PROCEDURES," THE ONLY GROUND FOR WHICH RELIEF MAY BE DENIED IN FEDERAL
HABEAS CORPUS FOR FAILURE TO RAISE A FEDERAL CONSTITUTIONAL CLAIM IN
THE STATE COURTS.  FAY V. NOIA, 372 U.S. 391, 439.  SEE ALSO JOHNSON V.
ZERBST, 304 U.S. 458. 

FN2  THE CONFESSION READS IN PERTINENT PART AS FOLLOWS: 

"Q.  WHERE DID YOU MEET THE OFFICER?  A. ON THE STREET. 

"Q.  WHAT HAPPENED WHEN YOU MET HIM?  A. I SAID, 'THERE WAS A FIGHT
UPSTAIRS,' 

"Q.  THEN WHAT?  A. HE INSISTED I GO WITH HIM SO I GOT THE BEST OF
HIM. 

"Q.  HOW DID YOU GET THE BEST OF HIM?  A. I KNOW JUDO. 

"Q.  YOU THREW HIM OVER.  A. YEAH. 

"Q.  WHERE WAS YOU GUN WHILE YOU WERE GIVING HIM THE JUDO?  A. IN MY
HOLSTER. 

"Q.  AFTER YOU THREW HIM TO THE GROUND, DID YOU PULL YOUR GUN?  WHERE
WAS THE HOLSTER?  A. ON MY SHOULDER. 

"Q.  AFTER YOU THREW HIM TO THE GROUND, WHAT DID YOU DO ABOUT YOUR
GUN?  A. HE WENT FOR HIS GUN. 

"Q.  WHAT DID YOU DO?  A. I GOT MINE OUT FIRST. 

"Q.  DID YOU POINT THE GUN AT HIM?  A. YEAH. 

"Q.  WHAT DID YOU SAY TO HIM?  A. TOLD HIM NOT TO BE A HERO. 

     *         *     *         *         * 

"Q.  HOW MANY SHOTS DID YOU FIRE AT THE OFFICER?  A. I DON'T KNOW. 

"Q.  WAS IT MORE THAN ONE?  A. YEAH. 

"Q.  WHO FIRED FIRST, YOU OR THE POLICE OFFICER?  A. I BEAT HIM TO
IT. 

"Q.  HOW MANY TIMES DID YOU FIRE AT HIM?  A. I DON'T KNOW; TWICE
PROBABLY. 

"Q.  DID HE GO DOWN?  DID HE FALL DOWN?  A. YEAH. 

"Q.  WHAT DID YOU DO?  A. I SHOT.  I DIDN'T KNOW.  I KNEW I WAS
SHOT.  WHILE I WAS ON THE GROUND HE FIRED THE GUN." 

FN3  THE PROPERTIES OF THESE MEDICATIONS WERE DESCRIBED IN THIS WAY: 

"BY MR. HEALY: 

"Q. COULD YOU TELL US WHAT TIME DEMEROL WAS PRESCRIBED FOR HIM?  A.
FROM OUR RECORDS IT WAS STATED HERE.  IT WAS GIVEN AT 3:55 A.M. 

"Q.  3:55.  WELL, WILL THAT PUT YOU TO SLEEP, DEMEROL, DOCTOR?  A.
WELL, IT WILL MAKE YOU. 

"Q.  DOPEY?  A. IT WILL MAKE YOU DOPEY. 

"Q.  AND WHAT WAS THE OTHER ONE, ATROPINE? 

"THE COURT:  ATROPINE, A-T-R-O-P-I-N-E-. 

"BY MR. HEALY: 

"Q.  ATROPINE, WHAT IS THAT?  A. OH, IT IS NOT ATROPINE.  IT IS
SCOPOLAMINE. 

"Q.  WHAT IS THAT, DOCTOR?  A. IT DRIES UP THE SECRETION. 

"THE COURT:  IT DRIES UP THE SECRETION? 

"THE WITNESS:  OF THE THROAT AND THE PHARYNGES AND THE UPPER
RESPIRATORY TRACT. 

     *         *         *         *        * 

"REDIRECT EXAMINATION BY MR. SCHOR: 

"Q.  DOCTOR, YOU JUST TOLD US THAT DEMEROL MAKES A PERSON DOPEY;
RIGHT?  A. YES, SIR. 

"Q.  HOW LONG DOES IT TAKE FROM THE TIME IT IS ADMINISTERED UNTIL THE
PATIENT FEELS THE EFFECT?  A.  WELL, IT MANIFESTS ITS ACTION ABOUT
FIFTEEN MINUTES AFTER IT IS INJECTED. 

"Q.  FIFTEEN MINUTES LATER?  A. ABOUT FIFTEEN MINUTES LATER. 

     *         *         *         *         * 

"BY MR. HEALY: 

     *         *         *         *   * 

"Q.  SO IF A PERSON WAS IN GOOD HEALTH AND TOOK DEMEROL, THE EFFECT
WOULDN'T BE ANY DIFFERENT?  A.  NOT MUCH DIFFERENT. 

     *         *         *         *         * 

"Q.  HOW ABOUT A PERSON WHO, FOR INSTANCE, HAS BEEN SHOT THROUGH THE
LIVER, AS YOUR REPORT SHOWS THERE?  WOULD THAT BE THE SAME TIME AS FOR
A HEALTHY PERSON?  DO YOU MEAN THAT, DOCTOR?  A. YES, SIR. 

     *         *         *         *         * 

"Q.  THE REPORT - THE RECORD SHOWS THAT HE HAD LOST 500 CC'S OF
BLOOD.  NOW, I AM ASKING YOU, WOULD THAT MAKE ANY DIFFERENCE IN THE
TIME THAT THIS - A. I DON'T THINK SO." 

FN4  "THE COURT:  JUDGE HEALY RAISED THE POINT IN CROSS-EXAMINATION
THAT SEDATION OF A KIND WAS ADMINISTERED TO THE PATIENT. 

"MR. HEALY:  SOME KIND. 

"THE COURT:  AND THEREFORE HE IS GOING TO CONTEND AND HE DOES NOW
THAT THE CONFESSION HASN'T THE WEIGHT THE LAW REQUIRES.  IS THAT YOUR
PURPOSE? 

"MR HEALY:  THAT'S CORRECT.  THERE ARE TWO, ONE STATEMENT AND ANOTHER
STATEMENT.  ONE STATEMENT TO THE POLICE AND ONE STATEMENT TO THE
DISTRICT ATTORNEY. 

     *         *         *         *         * 

"MR. HEALY:  MR. LENTINI BEING THE HEARING REPORTER.  THAT WAS TAKEN
AT 3:55. 

"THE COURT:  THAT'S THE TIME THAT YOU SAY HE WAS IN NO MENTAL
CONDITION TO MAKE THE STATEMENT? 

"MR HEALY:  THAT'S CORRECT. 

"THE COURT:  IS THAT CORRECT? 

"MR. HEALY:  THAT'S CORRECT." 

FN5  "IF YOU DETERMINE THAT IT WAS A CONFESSION, THE STATEMENT
OFFERED HERE, AND IF YOU DETERMINE THAT JACKSON MADE IT, AND IF YOU
DETERMINE THAT IT IS TRUE; IF YOU DETERMINE THAT IT IS ACCURATE, BEFORE
YOU MAY USE IT, THE LAW STILL SAYS YOU MUST FIND THAT IT IS VOLUNTARY,
AND THE PROSECUTION HAS THE BURDEN OF PROVING THAT IT WAS A VOLUNTARY
CONFESSION.  THE DEFENDANT MERELY COMES FORWARD WITH THE SUGGESTION
THAT IT WAS INVOLUNTARY, BUT THE BURDEN IS UPON THE PROSECUTION TO SHOW
THAT IT WAS VOLUNTARY. 

"UNDER OUR LAW, A CONFESSION, EVEN IF TRUE AND ACCURATE, IF
INVOLUNTARY, IS NOT ADMISSIBLE, AND IF IT IS LEFT FOR THE JURY TO
DETERMINE WHETHER OR NOT IT WAS VOLUNTARY, ITS DECISION IS FINAL.  IF
YOU SAY IT WAS INVOLUNTARILY OBTAINED, IT GOES OUT OF THE CASE.  IF YOU
SAY IT WAS VOLUNTARILY MADE, THE WEIGHT OF IT IS FOR YOU.  SO I AM
SUBMITTING TO YOU AS A QUESTION OF FACT TO DETERMINE WHETHER OR NOT (A)
THIS STATEMENT WAS MADE BY JACKSON, OR ALLEGEDLY MADE BY JACKSON,
WHETHER IT WAS A VOLUNTARY CONFESSION, AND WHETHER IT WAS TRUE AND
ACCURATE.  THAT DECISION IS YOURS. 

"SHOULD YOU DECIDE UNDER THE RULES THAT I GAVE YOU THAT IT IS
VOLUNTARY, TRUE AND ACCURATE, YOU MAY USE IT, AND GIVE IT THE WEIGHT
YOU FEEL THAT YOU SHOULD GIVE IT.  IF YOU SHOULD DECIDE THAT IT IS
INVOLUNTARY, EXCLUDE IT FROM THE CASE.  DO NOT CONSIDER IT AT ALL.  IN
THAT EVENT, YOU MUST GO TO THE OTHER EVIDENCE IN THE CASE TO SEE
WHETHER OR NOT THE GUILT OF JACKSON WAS ESTABLISHED TO YOUR
SATISFACTION OUTSIDE OF THE CONFESSION, BEYOND A REASONABLE DOUBT. 

"IF YOU SHOULD DETERMINE THAT JACKSON MADE THIS CONFESSION, AND THAT
IT WAS A TRUE CONFESSION, AND YOU HAVE SO DETERMINED FROM THE EVIDENCE,
THEN IF YOU SHOULD DECIDE THAT IT WAS GOTTEN BY INFLUENCE, OF FEAR
PRODUCED BY THREATS, AND IF THAT IS YOUR DECISION, THEN REJECT IT. 

"I REPEAT TO YOU AGAIN, THE BURDEN OF PROVING THE ACCURACY, TRUTH,
AND THE VOLUNTARINESS OF THE CONFESSION ALWAYS RESTS UPON THE
PROSECUTION." 

THERE IS NO ISSUE RASIED AS TO WHETHER THESE INSTRUCTIONS STATED AN
ADEQUATE AND CORRECT FEDERAL STANDARD FOR DETERMINING THE VOLUNTARINESS
OF JACKSON'S CONFESSION. 

FN6  SEE PEOPLE V. WEINER, 248 N.Y. 118, 161 N.E. 441; PEOPLE V.
LEYRA, 302 N.Y. 353, 98 N.E.2D 553. 

FN7  PEOPLE V. DORAN, 246 N.Y. 409, 416-417, 159 N.E. 379, 381-382;
PEOPLE V. LEYRA, SUPRA.  UNDER THE NEW YORK RULE THE JUDGE IS NOT
REQUIRED TO EXCLUDE THE JURY WHILE HE HEARS EVIDENCE AS TO
VOLUNTARINESS AND PERHAPS IS NOT ALLOWED TO DO SO.  PEOPLE V. BRASCH,
193 N.Y. 46, 85 N.E. 809; PEOPLE V. RANDAZZIO, 194 N.Y. 147, 87 N.E.
112. 

FN8  WE RAISE NO QUESTION HERE CONCERNING THE MASSACHUSETTS
PROCEDURE.  IN JURISDICTIONS FOLLOWING THIS RULE, THE JUDGE HEARS THE
CONFESSION EVIDENCE, HIMSELF RESOLVES EVIDENTIARY CONFLICTS AND GIVES
HIS OWN ANSWER TO THE COERCION ISSUE, REJECTING CONFESSION HE DEEMS
INVOLUNTARY AND ADMITTING ONLY THOSE HE BELIEVES VOLUNTARY.  IT IS ONLY
THE LATTER CONFESSIONS THAT ARE HEARD BY THE JURY, WHICH MAY THEN,
UNDER THIS PROCEDURE, DISAGREE WITH THE JUDGE, FIND THE CONFESSION
INVOLUNTARY AND IGNORE IT.  GIVEN THE INTEGRITY OF THE PRELIMINARY
PROCEEDINGS BEFORE THE JUDGE, THE MASSACHUSETTS PROCEDURE DOES NOT, IN
OUR OPINION, POSE HAZARDS TO THE RIGHTS OF A DEFENDANT.  WHILE NO MORE
WILL BE KNOWN ABOUT THE VIEWS OF THE JURY THAN UNDER THE NEW YORK RULE,
THE JURY DOES NOT HEAR ALL CONFESSIONS WHERE THERE IS A FAIR QUESTION
OF VOLUNTARINESS, BUT ONLY THOSE WHICH A JUDGE ACTUALLY AND
INDEPENDENTLY DETERMINES TO BE VOLUNTARY, BASED UPON ALL OF THE
EVIDENCE.  THE JUDGE'S CONSIDERATION OF VOLUNTARINESS IS CARRIED OUT
SEPARATE AND ASIDE FROM ISSUES OF THE RELIABILITY OF THE CONFESSION AND
THE GUILT OR INNOCENCE OF THE ACCUSED AND WITHOUT REGARD TO THE FACT
THE ISSUE MAY AGAIN BE RAISED BEFORE THE JURY IF DECIDED AGAINST THE
DEFENDANT.  THE RECORD WILL SHOW THE JUDGE'S CONCLUSIONS IN THIS REGARD
AND HIS FINDINGS UPON THE UNDERLYING FACTS MAY BE EXPRESS OR
ASCERTAINABLE FROM THE RECORD. 

ONCE THE CONFESSION IS PROPERLY FOUND TO BE VOLUNTARY BY THE JUDGE,
RECONSIDERATION OF THIS ISSUE BY THE JURY DOES NOT, OF COURSE,
IMPROPERLY AFFECT THE JURY'S DETERMINATION OF THE CREDIBILITY OR
PROBATIVENESS OF THE CONFESSION OR ITS ULTIMATE DETERMINATION OF GUILT
OR INNOCENCE.    FN9  NOT ALL THE STATES AND FEDERAL JUDICIAL CIRCUITS
CAN BE NEATLY CLASSIFIED IN ACCORDANCE WITH THE ABOVE THREE
PROCEDURES.  IN MANY CASES IT IS DIFFICULT TO ASCERTAIN FROM PUBLISHED
APPELLATE COURT OPINIONS WHETHER THE NEW YORK OR MASSACHUSETTS
PROCEDURE, OR SOME VARIANT OF EITHER, IS BEING FOLLOWED.  SOME
JURISDICTIONS APPARENTLY LEAVE THE MATTER ENTIRELY TO THE DISCRETION OF
THE TRIAL COURT; OTHER STATE THE RULE DIFFERENTLY ON DIFFERENT
OCCASIONS; AND STILL OTHERS DEAL WITH VOLUNTARINESS IN TERMS OF
TRUSTWORTHINESS, WHICH IS SAID TO BE A MATTER FOR THE JURY, AN APPROACH
WHICH IN THE LIGHT OF THIS COURT'S RECENT DECISION IN ROGERS V.
RICHMOND, 365 U.S. 534, MAY MAKE THESE CASES OF DOUBTFUL AUTHORITY. 

BECAUSE OF THE ABOVE-DESCRIBED DIFFICULTIES, ANNOTATORS AND
COMMENTATORS HAVE NOT ATTEMPTED DEFINITIVE CLASSIFICATIONS OF
JURISDICTION FOLLOWING THE MASSACHUSETTS PROCEDURE SEPARATE FROM THOSE
FOLLOWING THE NEW YORK PRACTICE.  SEE 170 ALR 568; 85 ALR 870; MELTZER,
INVOLUNTARY CONFESSIONS: THE ALLOCATION OF RESPONSIBILITY BETWEEN JUDGE
AND JURY, 21 U. CHI.  L. REV. 317 (1954); 3 WIGMORE, EVIDENCE (3D ED.
1940), SEC. 861, N. 3. 

"THE FORMAL DISTINCTION BETWEEN THE NEW YORK AND MASSACHUSETTS
PROCEDURES IS OFTEN BLURRED IN APPELLATE OPINIONS.  UNDER EITHER
PROCEDURE, THE TRIAL COURT FACED WITH AN OBJECTION TO THE ADMISSIBILITY
OF A CONFESSION, MUST RULE ON THAT OBJECTION, I.E., MUST DETERMINE
WHETHER THE JURY IS TO HEAR THE CHALLENGED CONFESSION.  BUT THE
CONTROLLING QUESTION IS DIFFERENT UNDER TWO PROCEDURES ...  .  SINCE
COURTS WHICH REQUIRE THE ULTIMATE SUBMISSION OF THE VOLUNTARINESS ISSUE
TO THE JURY REFER TO THE NECESSITY OF A JUDICIAL DETERMINATION WITHOUT
SPECIFYING ITS CHARACTER, IT IS SOMETIMES DIFFICULT TO DETERMINE WHICH
OF TWO PROCEDURES IS BEING APPROVED  ...  ."  MELTZER, SUPRA, AT 323
324. 

THOSE JURISDICTIONS WHERE IT APPEARS UNCLEAR FROM APPELLATE COURT
OPINIONS WHETHER THE MASSACHUSETTS OR NEW YORK PROCEDURE IS USED IN THE
TRIAL COURT ARE LISTED IN THE APPENDIX. 

FN10  "IT MAY BE URGED THAT THE COMMITMENT OF OUR SYSTEM TO JURY
TRIAL PRESUPPOSES THE ACCEPTANCE OF THE ASSUMPTIONS THAT THE JURY
FOLLOWS ITS INSTRUCTIONS, THAT IT WILL MAKE A SEPARATE DETERMINATION OF
THE VOLUNTARINESS ISSUE, AND THAT IT WILL DISREGARD WHAT IT IS SUPPOSED
TO DISREGARD.  BUT THAT COMMITMENT GENERALLY PRESUPPOSES THAT THE JUDGE
WILL APPLY THE EXCLUSIONARY RULES BEFORE PERMITTING EVIDENCE TO BE
SUBMITTED TO THE JURY."  MELTZER, INVOLUNTARY CONFESSIONS: THE
ALLOCATION OF RESPONSIBILITY BETWEEN JUDGE AND JURY, 21 U. CHI.  L.
REV. 317, 327 (1954).  SEE ALSO 9 WIGMORE, EVIDENCE (3D ED. 1940), SEC.
2550. 

"THE CASE OF A CONFESSION INDUCED BY PHYSICAL OR MENTAL COERCION
DESERVES SPECIAL MENTION.  THE PROTECTION WHICH THE ORTHODOX RULE OR
THE MASSACHUSETTS DOCTRINE AFFORDS THE ACCUSED IS OF MAJOR VALUE TO
HIM.  A FAIR CONSIDERATION OF THE EVIDENCE UPON THE PRELIMINARY
QUESTION IS ESSENTIAL; IN THIS CONSIDERATION THE TRUTH OR UNTRUTH OF
THE CONFESSION IS IMMATERIAL.  DUE PROCESS OF LAW REQUIRES THAT A
COERCED CONFESSION BE EXCLUDED FROM CONSIDERATION BY THE JURY.  IT ALSO
REQUIRES THAT THE ISSUE OF COERCION BE TRIED BY AN UNPREJUDICED TRIER,
AND, REGARDLESS OF THE PIOUS FICTIONS INDULGED BY THE COURTS, IT IS
USELESS TO CONTENT THAT A JUROR WHO HAS HEARD THE CONFESSION CAN BE
UNINFLUENCED BY HIS OPINION AS TO THE TRUTH OR FALSITY OR IT  ... .
THE RULE EXCLUDING A COERCED CONFESSION IS MORE THAN A RULE EXCLUDING
HEARSAY.  WHATEVER MAY BE SAID ABOUT THE ORTHODOX REASONING THAT ITS
EXCLUSION IS ON THE GROUND OF ITS PROBABLE FALSITY, THE FACT IS THAT
THE CONSIDERATIONS WHICH CALL FOR THE EXCLUSION OF A COERCED CONFESSION
ARE THOSE WHICH CALL FOR THE PROTECTION OF EVERY CITIZEN, WHETHER HE BE
IN FACT GUILTY OR NOT GUILTY.  AND THE RULE OF EXCLUSION OUGHT NOT TO
BE EMASCULATED BY ADMITTING THE EVIDENCE AND GIVING TO THE JURY AN
INSTRUCTION WHICH, AS EVERY JUDGE AND LAWYER KNOWS, CANNOT BE OBEYED." 
MORGAN, SOME PROBLEMS OF PROOF UNDER THE ANGLO-AMERICAN SYSTEM OF
LITIGATION (1956), 104-105. 

FN11  "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 FORCED 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."  346 U.S., AT 192.  THE COURT FURTHER
NOTED IN STEIN THAT THE DETAILED CONFESSIONS WERE "CORROBORATED
THROUGHOUT BY OTHER EVIDENCE," 346 U.S., AT 168, AND FELT IT NECESSARY
TO RECOUNT THE CONTEXT IN WHICH THE CONFESSIONS WERE OBTAINED ONLY FROM
"A SUMMARY OF THE WHOLE TESTIMONY," 346 U.S., AT 162.  THE PREMISE THAT
THE VERACITY OF THE CONFESSION IS HIGHLY PERTINENT TO ITS VOLUNTARINESS
CAN ALSO BE GLEANED FROM OTHER STATEMENTS IN THE OPINION.  IN RESPENSE
TO AN OBJECTION THAT THE NEW YORK PROCEDURE DETERRED TESTIMONY FROM A
DEFENDANT ON THE FACTS SURROUNDING THE OBTAINING OF THE CONFESSION, THE
COURT STATED:  "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."  ID., AT 175. 

FN12  ROGERS DEALTH WITH THE SITUATION WHERE THE STATE TRIAL JUDGE
AND THE STATE SUPREME COURT APPLIED A LEGAL STANDARD OF VOLUNTARINESS
WHICH INCORPORATED RELIABILITY OF THE CONFESSION AS A RELEVANT
DETERMINANT OF VOLUNTARINESS, WHEREAS THERE IS NO ISSUE HERE THAT THE
JURY WAS EXPLICITLY INSTRUCTED TO CONSIDER RELIABILITY IN DECIDING
WHETHER JACKSON'S CONFESSION WAS ADMISSIBLE, ALTHOUGH IT SHOULD BE
NOTED THAT THE JURY WAS NOT CLEARLY TOLD NOT TO CONSIDER THIS ELEMENT. 
THE JURY IS INDEED TOLD TO AND NECESSARILY DOES CONSIDER THIS ELEMENT
IN DETERMINING THE WEIGHT TO BE GIVEN THE CONFESSION.  THE ISSUES OF
PROBATIVENESS AND VOLUNTARINESS ARE DISCRETE AND HAVE DIFFERENT POLICY
UNDERPINNINGS, BUT ARE OFTEN CONFUSED.  SEE NOTE 13, INFRA.  REGARDLESS
OF EXPLICIT INSTRUCTIONS, HOWEVER, WE THINK THE LIKELIHOOD THAT THESE
FORBIDDEN CONSIDERATIONS ENTER THE JURY'S DELIBERATIONS TOO GREAT FOR
US TO IGNORE.  UNDER THE NEW YORK PROCEDURE THE JURY IS NOT ASKED TO
RESOLVE THE ISSUE OF VOLUNTARINESS UNTIL AFTER THE STATE HAS CARRIED
ITS BURDEN OF PROOF ON THE ISSUE OF A DEFENDANT'S GUILT AND THUS NOT
UNTIL AFTER MATTERS PERTAINING TO THE DEFENDANT'S GUILT, INCLUDING
MATTERS CORROBORATIVE OF THE CONFESSION ITSELF, ARE FULLY EXPLORED AT
TRIAL.  SEE MORGAN, NOTE 10, SUPRA. 

FN13  THE QUESTION OF THE CREDIBILITY OF A CONFESSION, AS
DISTINGUISHED FROM ITS ADMISSIBILITY, IS SUBMITTED TO THE JURY IN
JURISDICTIONS FOLLOWING THE ORTHODOX, MASSACHUSETTS, OR NEW YORK
PROCEDURE.   SINCE THE EVIDENCE SURROUNDING THE MAKING OF A CONFESSION
BEARS ON ITS CREDIBILITY, SUCH EVIDENCE IS PRESENTED TO THE JURY UNDER
THE ORTHODOX RULE NOT ON THE ISSUE OF VOLUNTARINESS OR COMPETENCY OF
THE CONFESSION, BUT ON THE ISSUE OF ITS WEIGHT.  JUST AS QUESTIONS OF
ADMISSIBILITY OF EVIDENCE ARE TRADITIONALLY FOR THE COURT, QUESTIONS OF
CREDIBILITY, WHETHER OF A WITNESS OR A CONFESSION, ARE FOR THE JURY. 
THIS IS SO BECAUSE TRIAL COURTS DO NOT DIRECT A VERDICT AGAINST THE
DEFENDANT ON ISSUES INVOLVING CREDIBILITY.  NOTHING IN THIS OPINION, OF
COURSE, TOUCHES UPON THESE ORDINARY RULES OF EVIDENCE RELATING TO
IMPEACHMENT. 

A FINDING THAT THE CONFESSION IS VOLUNTARY PRIOR TO ADMISSION NO MORE
AFFECTS THE INSTRUCTIONS ON OR THE JURY'S VIEW OF THE RELIABILITY OF
THE CONFESSION THAN A FINDING IN A PRELIMINARY HEARING THAT EVIDENCE
WAS NOT OBTAINED BY AN ILLEGAL SEARCH AFFECTS THE INSTRUCTIONS ON OR
THE JURY'S VIEW OF THE PROBATIVENESS OF THIS EVIDENCE. 

THE FAILURE TO DISTINGUISH BETWEEN THE DISCRETE ISSUES OF
VOLUNTARINESS AND CREDIBILITY IS FREQUENTLY REFLECTED IN OPINIONS WHICH
DECLARE THAT IT IS THE PROVINCE OF THE COURT TO RESOLVE QUESTIONS OF
ADMISSIBILITY OF CONFESSIONS, AS WITH ALL OTHER QUESTIONS OF
ADMISSIBILITY OF EVIDENCE, THE PROVINCE OF THE JURY TO DETERMINE ISSUES
OF CREDIBILITY, BUT WHICH THEN APPROVE THE TRIAL COURT'S SUBMISSION OF
THE VOLUNTARINESS QUESTION TO THE JURY.  MELTZER, INVOLUNTARY
CONFESSIONS: THE ALLOCATION OF RESPONSIBILITY BETWEEN JUDGE AND JURY,
21 U. CHI.  L. REV. 317, 320-321 (1954). 

FN14  ANOTHER ASSUMPTION OF STEIN - THAT A CRIMINAL CONVICTION CAN
STAND DESPITE THE INTRODUCTION OF A COERCED CONFESSION IF THERE IS
SUFFICIENT OTHER EVIDENCE TO SUSTAIN A FINDING OF GUILT AND IF THE
CONFESSION IS ONLY TENTATIVELY SUBMITTED TO THE JURY - AN ASSUMPTION
ALSO RELATED TO THE VIEW THAT THE USE OF INVOLUNTARY CONFESSIONS IS
CONSTITUTIONALLY PROSCRIBED SOLELY BECAUSE OF THEIR ILLUSORY
TRUSTWORTHINESS, HAS ALSO BEEN REJECTED IN THE DECISIONS OF THIS
COURT.  IT IS NOW CLEAR THAT REVERSAL FOLLOWS IF THE CONFESSION
ADMITTED IN EVIDENCE IS FOUND TO BE INVOLUNTARY IN THIS COURT
REGARDLESS OF THE POSSIBILITY THAT THE JURY CORRECTLY FOLLOWED
INSTRUCTIONS AND DETERMINED THE CONFESSION TO BE INVOLUNTARY.  HAYNES,
V. WASHINGTON, 373 U.S. 503; SPANO V. NEW YORK, 360 U.S. 315; PAYNE V.
ARKANSAS, 356 U.S. 560; LEYRA V. DENNO, 347 U.S. 556. 

FN15  SEE RIDEAU V. LOUISIANA, 373 U.S. 723, 727:  "BUT WE DO NOT
HESITATE TO HOLD, WITHOUT PAUSING TO EXAMINE A PARTICULARIZED
TRANSCRIPT OF THE VOIR DIRE EXAMINATION OF THE MEMBERS OF THE JURY,
THAT DUE PROCESS OF LAW IN THIS CASE REQUIRED A TRIAL BEFORE A JURY
DRAWN FROM A COMMUNITY OF PEOPLE WHO HAD NOT SEEN AND HEARD RIDEAU'S
TELEVISED 'INTERVIEW.'"  SEE ALSO DELLI PAOLI V. UNITED STATES, 352
U.S. 232, 248:  "THE GOVERNMENT SHOULD NOT HAVE THE WINDFALL OF HAVING
THE JURY BE INFLUENCED BY EVIDENCE AGAINST A DEFENDANT WHICH, AS A
MATTER OF LAW, THEY SHOULD NOT CONSIDER BUT WHICH THEY CANNOT PUT OUT
OF THEIR MINDS."  (DISSENTING OPINION OF MR. JUSTICE FRANKFURTER
RELATING TO USE OF A CONFESSION OF A CO-DEFENDANT UNDER LIMITING
INSTRUCTIONS.)  KRULEWITCH V. UNITED STATES, 336 U.S. 440, 453:  "THE
NAIVE ASSUMPTION THAT PREJUDICIAL EFFECTS CAN BE OVERCOME BY
INSTRUCTIONS TO THE JURY, CF. BLUMENTHAL V. UNITED STATES, 332 U.S.
539, 559, ALL PRACTICING LAWYERS KNOW TO BE UNMITIGATED FICTION.  SEE
SKIDMORE V. BALTIMORE & OHIO R. CO., 167 F.2D 54."  (CONCURRING OPINION
OF MR. JUSTICE JACKSON RELATING TO LIMITING INSTRUCTIONS CONCERNING USE
OF DECLARATIONS OF CO-CONSPIRATORS.)  SHEPARD V. UNITED STATES, 290
U.S. 96, 104; UNITED STATES V. LEVITON, 193 F.2D 848, 865 (C.A.2D
CIR.), CERTIORARI DENIED, 343 U.S. 946; MORGAN, FUNCTIONS OF JUDGE AND
JURY IN THE DETERMINATION OF PRELIMINARY QUESTIONS OF FACT, 43 HARV. L.
REV. 165, 168-169 (1929); MELTZER, INVOLUNTARY CONFESSIONS:  THE
ALLOCATION OF RESPONSIBILITY BETWEEN JUDGE AND JURY, 21 U. CHI.  L.
REV. 317, 326 (1954). 

FN16  FURTHER OBSTACLES TO A RELIABLE AND FAIR DETERMINATION OF
VOLUNTARINESS UNDER THE NEW YORK PROCEDURE RESULT FROM THE ORDINARY
RULES RELATING TO CROSS-EXAMINATION AND IMPEACHMENT.  ALTHOUGH NOT THE
CASE HERE, AN ACCUSED MAY WELL BE DETERRED FROM TESTIFYING ON THE
VOLUNTARINESS ISSUE WHEN THE JURY IS PRESENT BECAUSE OF HIS
VULNERABILITY TO IMPEACHMENT BY PROOF OF PRIOR CONVICTIONS AND BROAD
CROSS-EXAMINATION, BOTH OF WHOSE PREJUDICIAL EFFECTS ARE FAMILIAR.  THE
FEAR OF SUCH IMPEACHMENT AND EXTENSIVE CROSS-EXAMINATION IN THE
PRESENCE OF THE JURY THAT IS TO PASS ON GUILT OR INNOCENCE AS WELL AS
VOLUNTARINESS MAY INDUCE A DEFENDANT TO REMAIN SILENT, ALTHOUGH HE IS
PERHAPS THE ONLY SOURCE OF TESTIMONY ON THE FACTS UNDERLYING THE CLAIM
OF COERCION.  WHERE THIS OCCURS THE DETERMINATION OF VOLUNTARINESS IS
MADE UPON LESS THAN ALL OF THE RELEVANT EVIDENCE.  CF. UNITED STATES V.
CARIGNAN, 342 U.S. 36. 

FN17  ALSO SEE GALLEGOS V. COLORADO, 370 U.S. 49; CULOMBE V.
CONNECTICUT, 367 U.S. 568; SPANO V. NEW YORK, 360 U.S. 315; FIKES V.
ALABAMA, 352 U.S. 191; WATTS V. INDIANA, 338 U.S. 49; TURNER V.
PENNSYLVANIA, 338 U.S. 62; HARRIS V. SOUTH CAROLINA, 338 U.S. 68. 

FN18  IN WILSON V. UNITED STATES, 162 U.S. 613, AN EARLY CONFESSION
CASE IN THIS COURT, WHERE THE TRIAL JUDGE FIRST RULED ON THE
VOLUNTARINESS OF THE CONFESSION BEFORE SUBMITTING THE ISSUE TO THE
JURY, THE PROCEDURE GOVERNING ADMISSIBILITY IN THE FEDERAL COURTS WAS
STATED AS FOLLOWS: 

"WHEN THERE IS A CONFLICT OF EVIDENCE AS TO WHETHER A CONFESSION IS
OR IS NOT VOLUNTARY, IF THE COURT DECIDES THAT IT IS ADMISSIBLE, THE
QUESTION MAY BE LEFT TO THE JURY WITH THE DIRECTION THAT THEY SHOULD
REJECT THE CONFESSION IF UPON THE WHOLE EVIDENCE THEY ARE SATSIFIED IT
WAS NOT THE VOLUNTARY ACT OF THE DEFENDANT.  COMMONWEALTH V. PREECE,
140 MASS. 276."  ID., AT 624. 

THE COURT HELD IN UNITED STATES V. CARIGNAN, 342 U.S. 36, 38, THAT IT
WAS REVERSIBLE ERROR FOR A FEDERAL COURT TO REFUSE A DEFENDANT THE
OPPORTUNITY TO TESTIFY BEFORE THE JUDGE AND OUT OF THE PRESENCE OF THE
JURY ON THE FACTS SURROUNDING THE OBTAINING OF A CONFESSION CLAIMED TO
BE INVOLUNTARY.  THE COURT EXPLICITLY FOLLOWED THIS HOLDING IN SMITH V.
UNITED STATES, 348 U.S. 147, 151, WHEN A DEFENDANT'S ASSERTED
DEPRIVATION OF A PRELIMINARY HEARING ON ADMISSIBILITY BEFORE THE JUDGE
DURING THE TRIAL WAS REJECTED SOLELY BECAUSE "THE TRIAL JUDGE HAD
ALREADY HELD A HEARING ON THIS ISSUE IN PASSING ON THE PRETRIAL MOTION
TO SUPPRESS EVIDENCE." 

FN19  WHETHER THE TRIAL JUDGE, ANOTHER JUDGE, OR ANOTHER JURY, BUT
NOT THE CONVICTING JURY, FULLY RESOLVES THE ISSUE OF VOLUNTARINESS IS
NOT A MATTER OF CONCERN HERE.  TO THIS EXTENT WE AGREE WITH STEIN THAT
THE STATES ARE FREE TO ALLOCATE FUNCTIONS BETWEEN JUDGE AND JURY AS
THEY SEE FIT. 

FN20  WE REJECT JACKSON'S ALTERNATIVE CLAIM THAT EVEN THE UNDISPUTED
EVIDENCE IN THIS RECORD SHOWS HIS CONFESSION TO HAVE BEEN INVOLUNTARY. 
IF THE STATE'S VERSION OF THE FACTS IS ACCEPTED, WE HAVE ONLY JACKSON'S
READY AND COHERENT RESPONSES TO BRIEF QUESTIONING BY THE POLICE
UNAFFECTED BY DRUGS OR THREATS OR COERCIVE BEHAVIOR ON THE PART OF THE
POLICE; AND HIS APPARENTLY STRONG CONDITION AT THE TIME DESPITE HIS TWO
BULLET WOUNDS.    FN21  COMPARE TOWNSEND V. SAIN, 372 U.S. 293, WITH
ROGERS V. RICHMOND, 365 U.S. 534. 

FN22  IN ROGERS V. RICHMOND, SUPRA, THE COURT, UPON FINDING THAT THE
STATE TRIAL JUDGE APPLIED A WHOLLY ERRONEOUS STANDARD OF VOLUNTARINESS,
ORDERED A NEW TRIAL.  BUT THE ALTERNATIVE DISPOSITION URGED AND
REJECTED IN THAT CASE WAS AN EVIDENTIARY HEARING IN THE FEDERAL
DISTRICT COURT.  IT DOES NOT APPEAR THAT THE COURT CONSIDERED THE
POSSIBILITY OF A MORE LIMITED INITIAL HEARING IN THE STATE COURT WITH A
NEW TRIAL DEPENDENT UPON THE OUTCOME OF THE HEARING. 

FN23  EXCEPT FOR STEIN V. NEW YORK, SUPRA, THE PROCEDURE INVALIDATED
HEREIN WAS NOT QUESTIONED IN CONFESSION CASES DECIDED BY THIS COURT. 
IN SPANO V. NEW YORK, 360 U.S. 315, THE COURT READ STEIN AS HOLDING
THAT "WHEN A CONFESSION IS NOT FOUND BY THIS COURT TO BE INVOLUNTARY,
THIS COURT WILL NOT REVERSE ON THE GROUND THAT THE JURY MIGHT HAVE
FOUND IT INVOLUNTARY AND MIGHT HAVE RELIED ON IT."  ALSO SEE THOMAS V.
ARIZONA, 356 U.S. 390; LYONS V. OKLAHOMA, 322 U.S. 596; WILSON V.
UNITED STATES, 162 U.S. 613.  BUT CF. UNITED STATES V. CARIGNAN, 342
U.S. 36, 38: 

"WE THINK IT CLEAR THAT THIS DEFENDANT WAS ENTITLED TO SUCH AN
OPPORTUNITY TO TESTIFY (IN THE ABSENCE OF THE JURY AS TO THE FACTS
SURROUNDING THE CONFESSION).  AN INVOLUNTARY CONFESSION IS
INADMISSIBLE.  WILSON V. UNITED STATES, 162 U.S. 613, 623.  SUCH
EVIDENCE WOULD BE PERTINENT TO THE INQUIRY ON ADMISSIBILITY AND MIGHT
BE MATERIAL AND DETERMINATIVE.  THE REFUSAL TO ADMIT THE TESTIMONY WAS
REVERSIBLE ERROR." 

                       APPENDIX TO OPINION OF THE COURT. 

ARIZONA:  STATE V. PREIS, 89 ARIZ. 336, 338-339, 362 P.2D 660, 661
662, CERT. DENIED, 368 U.S. 934 (CONFLICTS IN THE EVIDENCE FOR THE JURY
BUT "IT MUST APPEAR TO THE REASONABLE SATISFACTION OF THE TRIAL COURT
THAT THE CONFESSION WAS NOT OBTAINED BY THREATS, COERCION OR PROMISES
OF IMMUNITY").  STATE V. HUDSON, 89 ARIZ. 103, 358 P.2D 332, STATES THE
ARIZONA PRACTICE MORE CLEARLY.  IF THE JUDGE FINDS THAT THE CONFESSION
IS VOLUNTARY, HE MAY ADMIT IT INTO EVIDENCE; IF IT APPEARS THE
CONFESSION WAS NOT VOLUNTARY, HE MUST NOT LET THE CONFESSION GO BEFORE
THE JURY.  SEE ALSO STATE V. PULLIAM, 87 ARIZ. 216, 349 P.2D 781. 

GEORGIA:  DOWN V. STATE, 208 GA. 619, 68 S.E.2D 568 (ADMISSIBLE WHERE
NO EVIDENCE OF INVOLUNTARINESS OFFERED AT PRELIMINARY EXAMINATION). 
GARRETT V. STATE, 203 GA.  756, 48 S.E.2D 377 (BEFORE ADMISSION PRIMA
FACIE SHOWING OF VOLUNTARINESS IS REQUIRED; SHOWING IS SATISFIED WHERE
TESTIMONY AS TO VOLUNTARINESS IS NOT CONTRADICTED).  COKER V. STATE,
199 GA. 20, 33 S.E.2D 171 (CONFESSION SHOULD HAVE BEEN EXCLUDED BY
TRIAL JUDGE EVEN THOUGH THERE WAS TESTIMONY THAT THE DEFENDANT WAS NOT
COERCED). 

IDAHO:  STATE V. VAN VLACK, 57 IDAHO 316, 65 P.2D 736 (PRIMARILY FOR
THE TRIAL COURT TO DETERMINE THE ADMISSIBILITY OF A CONFESSION).  STATE
V. DOWELL, 47 IDAHO 457, 276 P. 39; STATE V. ANDREASON, 44 IDAHO 396,
257 P. 370 (THE QUESTION OF VOLUNTARINESS PRIMARILY FOR THE
DETERMINATION OF THE TRIAL COURT).  STATE V. NOLAN, 31 IDAHO 71, 169 P.
295 (JUDGE MUST DETERMINE IF FREELY AND VOLUNTARILY MADE BEFORE
ADMISSION). 

MICHIGAN:  PEOPLE V. CROW, 304 MICH. 529, 8 N.W.2D 164 (QUESTION OF
VOLUNTARINESS FOR THE JURY).  PEOPLE V. PRESTON, 299 MICH. 484, 300
N.W. 853 (CONFESSION FIRST RULED VOLUNTARY IN PRELIMINARY EXAMINATION;
AT TRIAL THE QUESTION IS FOR THE JURY).  PEOPLE V. CLEVELAND, 251 MICH.
542, 232 N.W. 384 (INVOLUNTARINESS ISSUE SHOULD BE CAREFULLY
SCRUTINIZED AND CONFESSION EXCLUDED IF INVOLUNTARY; IF CONFLICT IN
EVIDENCE, MATTER FOR JURY). 

MINNESOTA:  STATE V. SCHABERT, 218 MINN. 1, 15 N.W.2D 585 (IF
EVIDENCE CREATES ISSUE OF FACT AS TO TRUSTWORTHINESS, THAT ISSUE SHOULD
BE SUBMITTED TO THE JURY ON PROPER INSTRUCTIONS, CITING WILSON V.
UNITED STATES, 162 U.S. 613, AND NEW YORK, PENNSYLVANIA AND
MASSACHUSETTS CASES).  STATE V. NELSON, 199 MINN. 86, 271 N.W. 114 (IF
JUDGE FINDS CONFESSION ADMISSIBLE, THE JURY SHOULD ALSO BE ALLOWED TO
PASS ON THE QUESTION OF VOLUNTARINESS). 

MISSOURI:  STATE V. STATLER, 331 S.W.2D 526 (IF THE EVIDENCE IS
CONFLICTING AND ISSUE CLOSE IN PRELIMINARY HEARING, THE ISSUE SHOULD BE
TRIED AGAIN AT TRIAL SO THAT BOTH TRIAL JUDGE AND JURY MAY PASS UPON IT
WITH ADDITIONAL EVIDENCE ADDUCED AT TRIAL).  STATE V. PHILLIPS, 324
S.W.2D 693.  STATE V. BRADFORD, 262 S.W.2D 584 (TRIAL COURT NOT OBLIGED
TO SUBMIT QUESTION TO JURY BECAUSE THERE IS SUBSTANTIAL EVIDENCE
SHOWING THE CONFESSION IS VOLUNTARY; WHERE THE ISSUE IS CLOSE, THE
TRIAL COURT MAY DECIDE THE QUESTION AFTER ADDITIONAL EVIDENCE ADDUCED
AT TRIAL IS IN). 

OHIO:  BURDGE V. STATE, 53 OHIO ST. 512, 42 N.E. 594 (MATTERS
PRELIMINARY TO THE ADMISSION OF EVIDENCE FOR THE COURT BUT WHERE COURT
IS IN DOUBT ABOUT THE MATTER, IT MAY LEAVE THE QUESTION TO THE JURY,
RELYING ON MASSACHUSETTS CASE).  STATE V. POWELL, 105 OHIO APP. 529,
148 N.E.2D 230, APPEAL DISMISSED, 167 OHIO ST. 319, 148 N.E.2D 232,
CERT. DENIED, 359 U.S. 964 (WHERE THE TRIAL JUDGE DISBELIEVES THE
DEFENDANT'S TESTIMONY AS TO VOLUNTARINESS, HE MAY LEAVE THE ISSUE TO
THE JURY; PRELIMINARY HEARING IN PRESENCE OF JURY IS DISCRETIONARY). 

OREGON:  STATE V. BODI, 223 ORE.  486, 354 P.2D 831 (JUDGE IN HIS
DISCRETION MAY DETERMINE VOLUNTARINESS OR ALLOW JURY TO DECIDE WHETHER
THE CONFESSION IS VOLUNTARY AND TRUSTWORTHY).  STATE V. NUNN, 212 ORE. 
546, 321 P.2D 356 (TRIAL JUDGE IS NOT FINALLY TO DETERMINE WHETHER A
CONFESSION IS VOLUNTARY BUT IS TO DETERMINE WHETHER THE STATE'S PROOF
WARRANTS A FINDING OF VOLUNTARINESS; IF SO, THE JURY CAN CONSIDER
VOLUNTARINESS IN DETERMINING THE WEIGHT TO BE AFFORDED THE
CONFESSION). 

PENNSYLVANIA:  COMMONWEALTH V. SENK, 412 PA. 184, 194 A.2D 221
(CONFESSION DETERMINED TO BE CONDITIONALLY ADMISSIBLE AFTER PRELIMINARY
HEARING).  COMMONWEALTH V. ROSS, 403 PA.  358, 365, 169 A.2D 780, 784,
CERT. DENIED, 368 U.S. 904 (BOTH TRIAL COURT IN PRELIMINARY HEARING AND
JURY APPLIED THE PROPER STANDARD IN DETERMINING THE CONFESSION TO BE
VOLUNTARY; TRIAL COURT ADDED THAT THE QUESTION WAS ONE OF FACT FOR THE
JURY).  COMMONWEALTH V. SPARDUTE, 278 PA. 37, 122 A. 161 (WHERE STATE'S
EVIDENCE SHOWS CONFESSION IS VOLUNTARY, MATTER IS FOR THE JURY; ONLY
COERCIVE PRACTICES INDUCING A FALSE CONFESSION RENDER IT
INADMISSIBLE). 

SOUTH CAROLINA:  STATE V. BULLOCK, 235 S.C. 356, 111 S.E.2D 657,
APPEAL DISMISSED, 365 U.S. 292 (AFTER TRIAL JUDGE DECIDES THE
CONFESSION IS ADMISSIBLE, JURY MAY PASS ON THE QUESTION OF
VOLUNTARINESS).  STATE V. LIVINGSTON, 223 S.C. 1, 73 S.E.2D 850, CERT.
DENIED, 345 U.S. 959.  STATE V. SCOTT, 209 S.C. 61, 38 S.E.2D 902
(QUESTION IS FOR THE JUDGE IN FIRST INSTANCE, BUT IF THE JUDGE IS
DOUBTFUL OR EVIDENCE IS CONFLICTING, THE JURY IS NECESSARILY THE FINAL
ARBITER). 

SOUTH DAKOTA:  STATE V. HINZ, 78 S.D. 442, 103 N.W.2D 656 (COURT MAY
RESOLVE THE QUESTION ONE WAY OR THE OTHER, OR, IF VERY DOUBTFUL, LEAVE
IT TO THE JURY).  STATE V. NICHOLAS, 62 S.D. 511, 253 N.W. 737
(PROCEDURE IS DISCRETIONARY WITH THE TRIAL JUDGE, BUT THE MORE FREQUENT
PRACTICE IS FOR THE TRIAL JUDGE TO DECIDE THE QUESTION OF
VOLUNTARINESS).  STATE V. MONTGOMERY, 26 S.D. 539, 128 N.W. 718
(QUESTION OF VOLUNTARINESS MAY BE SUBMITTED TO THE JURY WHERE THE
EVIDENCE IS CONFLICTING). 

TEXAS:  MARRUFO V. STATE, 172 TEX. CR. R. 398, 357 S.W.2D 761
(CONFESSION NOT INADMISSIBLE AS A MATTER OF LAW).  ODIS V. STATE, 171
TEX. CR. R. 107, 345 S.W.2D 529 (PROPER FOR TRIAL JUDGE TO FIND
CONFESSION ADMISSIBLE AS A MATTER OF LAW AND RECOGNIZE AN ISSUE IN
REGARD TO VOLUNTARINESS FOR JURY'S CONSIDERATION).  BINGHAM V. STATE,
97 TEX. CR. R. 594, 262 S.W. 747 (REVERSIBLE ERROR FOR THE COURT TO
FAIL TO PASS ON THE ADMISSIBILITY OF A CONFESSION SINCE DEFENDANT
ENTITLED TO THE COURT'S JUDGMENT ON THE MATTER; ONLY IF TRIAL JUDGE
DISBELIEVES EVIDENCE GOING TO INVOLUNTARINESS SHOULD THE CONFESSION BE
ADMITTED). 

WISCONSIN:  STATE V. BRONSTON, 7 WIS. 2D 627, 97 N.W.2D 504 (ISSUE OF
TRUSTWORTHINESS OF A CONFESSION FOR THE JURY).  POLLACK V. STATE, 215
WIS. 200, 253 N.W. 560 (UNLESS THE CONFESSION IS WHOLLY UNTRUSTWORTHY,
IT IS TO BE SUBMITTED TO THE JURY). 

WYOMING:  THE ONLY EXPRESSION OF THE WYOMING COURT IS FOUND IN CLAY
V. STATE, 15 WYO.  42, 86 P. 17, WHERE, IN DICTUM, IT IS SAID THAT THE
JURY MAY PASS ON THE QUESTION IF THE ADMISSIONS APPEAR TO BE VOLUNTARY
OR THE EVIDENCE IS CONFLICTING. 

THE SAME DIFFICULTY OF CLASSIFICATION EXISTS IN THE FEDERAL JUDICIAL
CIRCUITS.  THE CASES IN WHICH THE NEW YORK PRACTICE IS SAID TO BE
FOLLOWED ARE GENERALLY INSTANCES WHERE THE DEFENDANT DECLINES TO OFFER
ANY EVIDENCE IN A PRELIMINARY EXAMINATION AFTER THE GOVERNMENT HAS
SHOWN THE CONFESSION TO BE VOLUNTARY.  SEE HAYES V. UNITED STATES, 296
F.2D 657 (C.A. 8TH CIR.), CERT. DENIED, 369 U.S. 867.  UNITED STATES V.
ECHELES, 222 F.2D 144 (C.A. 7TH CIR.), CERT. DENIED, 350 U.S. 828;
UNITED STATES V. LEVITON, 193 F.2D 848 (C.A.2D CIR.); OR WHERE THE
TRIAL JUDGE FINDS THE CONFESSION TO BE VOLUNTARY, UNITED STATES V.
ANTHONY, 145 F. SUPP. 323 (D.C.M.D. PA.). 

OTHER OPINIONS FROM THE UNITED STATES COURTS OF APPEALS FOR THE
VARIOUS CIRCUITS INDICATE THAT THEY FOLLOW THE MASSACHUSETTS OR
ORTHODOX PROCEDURE.  SEE UNITED STATES V. GOTTFRIED, 165 F.2D 360, 367
(C.A.2D CIR.), CERT. DENIED, 333 U.S. 860; UNITED STATES V. LUSTIG, 163
F.2D 85, 88-89  (C.A.2D CIR.), CERT. DENIED, 332 U.S. 775; MCHENRY V.
UNITED STATES, 308 F.2D 700 (C.A. 10TH CIR.); ANDREWS V. UNITED STATES,
309 F.2D 127 (C.A. 5TH CIR.); CERT. DENIED, 372 U.S. 946; LEONARD V.
UNITED STATES, 278 F.2D 418 (C.A. 9TH CIR.); SMITH V. UNITED STATES,
268 F.2D 416 (C.A. 9TH CIR.); SHORES V. UNITED STATES, 174 F.2D 838
(C.A. 8TH CIR.); DENNY V. UNITED STATES, 151 F.2D 828 (C.A. 4TH CIR.),
CERT. DENIED, 327 U.S. 777; KEMLER V. UNITED STATES, 133 F.2D 235 (C.A.
1ST CIR.); MURPHY V. UNITED STATES, 285 F. 801 (C.A. 7TH CIR.), CERT.
DENIED, 261 U.S. 617. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, HOWEVER, DOES SEEM
TO SANCTION A VARIATION OF THE NEW YORK PRACTICE, WITH THE REQUIREMENT
THAT THE JUDGE HOLD A FULL PRELIMINARY HEARING, AT WHICH THE DEFENDANT
MAY TESTIFY, OUTSIDE THE PRESENCE OF THE JURY.  IT IS NOT CLEAR WHAT
THE TRIAL JUDGE MUST FIND BEFORE ADMITTING THE CONFESSION AND
SUBMITTING THE ISSUE OF VOLUNTARINESS TO THE JURY.  SAWYER V. UNITED
STATES, 112 U.S. APP. D.C. 381, 303 F.2D 392; WRIGHT V. UNITED STATES,
102 U.S. APP. D.C. 36, 250 F.2D 4 (WHERE THE CONFESSION COULD BE FOUND
VOLUNTARY, THE ISSUE IS FOR THE JURY).   ALTHOUGH THERE APPARENTLY ARE
NO RECENT CASES, THE COURT OF APPEALS FOR THE SIXTH CIRCUIT APPEARS TO
FOLLOW THE NEW YORK PRACTICE.  ANDERSON V. UNITED STATES, 124 F.2D 58,
REV'D 318 U.S. 350; MCBRYDE V. UNITED STATES, 7 F.2D 466. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE CLARK JOINS AS TO PART I OF
THIS OPINION, DISSENTING IN PART AND CONCURRING IN PART. 

                                        I. 

IN STEIN V. NEW YORK, 346 U.S. 156, 177-179, THIS COURT SUSTAINED THE
CONSTITUTIONALITY OF NEW YORK'S PROCEDURE UNDER WHICH THE JURY, RATHER
THAN THE TRIAL JUDGE, RESOLVES DISPUTED QUESTIONS OF FACT AS TO THE
VOLUNTARINESS OF CONFESSIONS OFFERED AGAINST DEFENDANTS CHARGED WITH
CRIME.  I THINK THIS HOLDING WAS CORRECT AND WOULD ADHERE TO IT.  WHILE
I DISSENT FROM AFFIRMANCE OF THE CONVICTIONS IN STEIN, MY DISSENT WENT
TO OTHER POINTS; I MOST ASSUREDLY DID NOT DISSENT BECAUSE OF ANY DOUBTS
ABOUT A STATE'S CONSTITUTIONAL POWER IN A CRIMINAL CASE TO LET THE
JURY, AS IT DOES IN NEW YORK, DECIDE THE QUESTION OF A CONFESSION'S
VOLUNTARINESS.  IN FACT, I WOULD BE FAR MORE TROUBLED ABOUT
CONSTITUTIONALITY SHOULD EITHER A STATE OR A FEDERAL GOVERNMENT DECLARE
THAT A JURY IN TRYING A DEFENDANT CHARGED WITH CRIME IS COMPELLED TO
ACCEPT WITHOUT QUESTION A TRIAL COURT'S FACTUAL FINDING THAT A
CONFESSION WAS VOLUNTARILY GIVEN.  WHATEVER MIGHT BE A JUDGE'S VIEW OF
THE VOLUNTARINESS OF A CONFESSION, THE JURY IN PASSING ON A DEFENDANT'S
GUILT OR INNOCENCE IS, IN MY JUDGMENT, ENTITLED TO HEAR AND DETERMINE
VOLUNTARINESS OF A CONFESSION ALONG WITH OTHER FACTUAL ISSUES ON WHICH
ITS VERDICT MUST REST. 

THE COURT RESTS ITS CHALLENGE TO THE RELIABILITY OF JURY VERDICTS IN
THIS FIELD ON ITS BELIEF THAT IT IS UNFAIR TO A DEFENDANT, AND
THEREFORE UNCONSTITUTIONAL, (FN1) TO HAVE THE QUESTION OF VOLUNTARINESS
OF A CONFESSION SUBMITTED TO A JURY UNTIL THE TRIAL JUDGE HAS FIRST
CANVASSED THE MATTER COMPLETELY AND MADE A FINAL DECISION THAT THE
CONFESSION IS VOLUNTARY.  NEW YORK DOES NOT DO THIS, ALTHOUGH, AS
POINTED OUT IN STEIN, SUPRA, 346 U.S., AT 174, THE TRIAL JUDGE DOES
HAVE MUCH POWER TO CONSIDER THIS QUESTION BOTH BEFORE AND AFTER A
JURY'S FINAL VERDICT IS ENTERED.  (FN2)  IF A RULE LIKE THAT WHICH THE
COURT NOW HOLDS TO BE CONSTITUTIONALLY REQUIRED WOULD IN ACTUAL
PRACTICE REDUCE THE NUMBER OF CONFESSIONS SUBMITTED TO JURIES, THIS
WOULD OBVIOUSLY BE AN ADVANTAGE FOR A DEFENDANT WHOSE ALLEGED
CONFESSION WAS FOR THIS REASON EXCLUDED.  EVEN ASSUMING THIS COURT'S
POWER TO FASHION THIS RULE, I AM STILL UNABLE TO CONCLUDE THAT THIS
POSSIBLE ADVANTAGE TO SOME DEFENDANTS IS REASON ENOUGH TO CREATE A NEW
CONSTITUTIONAL RULE STRIKING DOWN THE NEW YORK TRIAL-BY-JURY PRACTICE. 

ANOTHER REASON GIVEN BY THE COURT FOR INVALIDATING THE NEW YORK RULE
IS THAT IT IS INHERENTLY UNFAIR AND THEREFORE UNCONSTITUTIONAL TO
PERMIT THE JURY TO PASS ON VOLUNTARINESS, SINCE THE JURY, EVEN THOUGH
FINDING A CONFESSION TO HAVE BEEN COERCED, MAY NEVERTHELESS BE
UNWILLING TO FOLLOW THE COURT'S INSTRUCTION TO DISREGARD IT, BECAUSE IT
MAY ALSO BELIEVE THE CONFESSION IS TRUE, THE DEFENDANT IS GUILTY, AND A
GUILTY PERSON OUGHT NOT BE ALLOWED TO ESCAPE PUNISHMENT.  THIS IS A
POSSIBILITY, OF A NATURE THAT IS INHERENT IN ANY CONFESSION FACT
FINDING BY HUMAN FACT-FINDERS - A POSSIBILITY PRESENT PERHAPS AS MUCH
IN JUDGES AS IN JURORS.  THERE ARE, OF COURSE, NO STATISTICS AVAILABLE,
AND PROBABLY NONE COULD BE GATHERED, ACCURATELY REPORTING WHETHER AND
TO WHAT EXTENT FACT-FINDERS (JUDGES OR JURIES) ARE AFFECTED AS THE
COURT SAYS THEY MAY BE.    THOUGH ABLE TO CITE AS SUPPORT FOR ITS
HOLDING NO PRIOR CASES SUGGESTING THAT THE NEW YORK PRACTICE IS SO
UNFAIR TO DEFENDANTS THAT IT MUST BE HELD UNCONSTITUTIONAL, THE COURT
DOES REFER TO COMMENTATORS WHO HAVE MADE THE SUGGESTION.  (FN3)  NONE
OF THESE COMMENTATORS APPEARS TO HAVE GATHERED FACTUAL DATA TO SUPPORT
HIS THESIS, NOR DOES IT APPEAR THAT THEIR ARGUMENTS ARE AT ALL ROOTED
IN THE ACTUAL TRIAL OF CRIMINAL CASES.  THEORETICAL CONTEMPLATION IS A
HIGHLY VALUABLE MEANS OF MOVING TOWARD IMPROVED TECHNIQUES IN MANY
FIELDS, BUT IT CANNOT WHOLLY DISPLACE THE KNOWLEDGE THAT COMES FROM THE
HARD FACTS OF EVERYDAY EXPERIENCE.  WITH THIS IN MIND IT IS NOT AMISS
TO RECALL THAT THE NEW YORK METHOD OF SUBMITTING THE QUESTION OF
VOLUNTARINESS TO THE JURY WITHOUT FIRST HAVING A DEFINITIVE RULING BY
THE JUDGE NOT ONLY HAS MORE THAN A CENTURY OF HISTORY BEHIND IT BUT
APPEARS FROM THE CASES TO BE THE PROCEDURE USED IN 15 STATES, THE
DISTRICT OF COLUMBIA, AND PUERTO RICO, HAS BEEN APPROVED BY THIS COURT
AS A FEDERAL PRACTICE, SEE SMITH V. UNITED STATES, 348 U.S. 147, 150
151; COMPARE WILSON V. UNITED STATES, 162 U.S. 613, 624, AND HAS BEEN
APPROVED IN SIX OF THE 11 UNITED STATES COURT OF APPEALS CIRCUITS. 
(FN4)  FOURTEEN OTHER STATES APPEAR TO REQUIRE FULL-SCALE
DETERMINATIONS AS TO VOLUNTARINESS BOTH BY THE TRIAL COURT AND THE
JURY.  (FN5)  ANOTHER 20 STATES REQUIRE THE TRIAL JUDGE FIRST TO DECIDE
THE QUESTION OF VOLUNTARINESS FOR PURPOSES OF "ADMISSIBILITY" BUT HAVE
HIM THEN SUBMIT THAT QUESTION FOR THE JURY TO CONSIDER IN DETERMINING
"CREDIBILITY" OR "WEIGHT."  (FN6)  YET NO MATTER WHAT THE PURPOSE FOR
WHICH THE RULE SAYS THE JURY MAY CONSIDER THE CONFESSION'S
VOLUNTARINESS, IT IS CLEAR THAT ALL THE STATES, IN THE END, DO LET THE
JURY PASS ON THE QUESTION OF VOLUNTARINESS FOR ITSELF, WHETHER IN
DECIDING "ADMISSIBILITY" OR "CREDIBILITY." 

THE COURT IN NOTE 8 OF ITS OPINION INDICATES THAT A STATE MAY STILL,
UNDER THE NEW CONSTITUTIONAL RULE ANNOUNCED TODAY, PERMIT A TRIAL JURY
TO DETERMINE VOLUNTARINESS IF FIRST THE TRIAL JUDGE HAS "FULLY AND
INDEPENDENTLY RESOLVED THE ISSUE AGAINST THE ACCUSED."  ANTE, P. 378. 
IN OTHER WORDS, THE CONSTITUTION NOW REQUIRES THE JUDGE TO MAKE THIS
FINDING, AND THE JURY'S POWER TO PASS ON VOLUNTARINESS IS A MERE MATTER
OF GRACE, NOT SOMETHING CONSTITUTIONALLY REQUIRED.  IF, AS THE COURT
ASSUMES, ALLOWING THE JURY TO PASS ON THE VOLUNTARINESS OF A CONFESSION
BEFORE THE JUDGE HAS DONE SO WILL "SERIOUSLY DISTORT" THE JURY'S
JUDGMENT, I FAIL TO UNDERSTAND WHY ITS JUDGMENT WOULD NOT BE SIMILARLY
DISTORTED BY ITS BEING ALLOWED TO PASS ON VOLUNTARINESS AFTER THE JUDGE
HAS DECIDED THAT QUESTION.  YET, OF COURSE, THE JURY PASSING ON GUILT
OR INNOCENCE MUST, UNDER ANY FAIR SYSTEM OF CRIMINAL PROCEDURE, BE
ALLOWED TO CONSIDER AND DECIDE WHETHER AN OFFERED CONFESSION IS
VOLUNTARY IN ORDER TO PASS ON ITS CREDIBILITY.  BUT IT SHOULD BE
OBVIOUS THAT, UNDER THE COURT'S NEW RULE, WHEN A CONFESSION DOES COME
BEFORE A JURY IT WILL HAVE THE JUDGE'S EXPLICIT OR IMPLICIT STAMP OF
APPROVAL ON IT.  THIS COURT WILL FIND IT HARD TO SAY THAT THE JURY WILL
NOT BE GREATLY INFLUENCED, IF NOT ACTUALLY COERCED, WHEN WHAT THE TRIAL
JUDGE DOES IS THE SAME AS SAYING "I AM CONVINCED THAT THIS CONFESSION
IS VOLUNTARY, BUT, OF COURSE, YOU MAY DECIDE OTHERWISE IF YOU LIKE." 
(FN7) 

ANOTHER DISADVANTAGE TO THE DEFENDANT UNDER THE COURT'S NEW RULE IS
THE FAILURE TO SAY ANYTHING ABOUT THE BURDEN OF PROVING VOLUNTARINESS. 
THE NEW YORK RULE DOES NOW AND APPARENTLY ALWAYS HAS PUT ON THE STATE
THE BURDEN OF CONVINCING THE JURY BEYOND A REASONABLE DOUBT THAT A
CONFESSION IS VOLUNTARY.  SEE STEIN V. NEW YORK, SUPRA, 346 U.S., AT
173 AND N. 17; PEOPLE V. VALLETUTTI, 297 N.Y. 226, 229, 78 N.E.2D 485,
486.  THE COURT HAS NOT SAID THAT ITS NEW CONSTITUTIONAL RULE, WHICH
REQUIRES THE JUDGE TO DECIDE VOLUNTARINESS, ALSO IMPOSES ON THE STATE
THE BURDEN OF PROVING THIS FACT BEYOND A REASONABLE DOUBT.  DOES THE
COURT'S NEW RULE ALLOW THE JUDGE TO DECIDE VOLUNTARINESS MERELY ON A
PREPONDERANCE OF THE EVIDENCE?  IF SO, THIS IS A DISTINCT DISADVANTAGE
TO THE DEFENDANT.   IN FASHIONING ITS NEW CONSTITUTIONAL RULE, THE
COURT SHOULD NOT LEAVE THIS IMPORTANT QUESTION IN DOUBT. 

FINALLY, AND EVEN MORE IMPORTANT, THE COURT'S NEW CONSTITUTIONAL
DOCTRINE IS, IT SEEMS TO ME, A STRANGE ONE WHEN WE CONSIDER THAT BOTH
THE UNITED STATES CONSTITUTION AND THE NEW YORK CONSTITUTION (ART. I,
SEC. 2) ESTABLISH TRIAL BY JURY OF CRIMINAL CHARGES AS A BEDROCK
SAFEGUARD OF THE PEOPLE'S LIBERTIES.  (FN8)  THE REASONS GIVEN BY THE
COURT FOR THIS DOWNGRADING OF TRIAL BY JURY APPEAR TO ME TO CHALLENGE
THE SOUNDNESS OF THE FOUNDER'S GREAT FAITH IN JURY TRIALS.  IMPLICIT IN
THESE CONSTITUTIONAL REQUIREMENTS OF JURY TRIAL IS A BELIEF THAT JURIES
CAN BE TRUSTED TO DECIDE FACTUAL ISSUES.  STATING THE OBVIOUS FACT THAT
"IT IS ONLY A RELIABLE DETERMINATION ON THE VOLUNTARINESS ISSUE WHICH
SATISFIES THE CONSTITUTIONAL RIGHTS OF THE DEFENDANT ...  ," ANTE, P.
387, THE COURT CONCLUDES, HOWEVER, THAT A JURY'S FINDING ON THIS
QUESTION IS TAINTED BY INHERENT UNRELIABILITY.  IN MAKING THIS JUDGMENT
ABOUT THE UNRELIABILITY OF JURIES, THE COURT, I BELIEVE, OVERLOOKS THE
FACT THAT THE CONSTITUTION ITSELF LONG AGO MADE THE DECISION THAT
JURIES ARE TO BE TRUSTED. 

TODAY'S HOLDING MEANS THAT HUNDREDS OF PRISONERS IN THE STATE OF NEW
YORK HAVE BEEN CONVICTED AFTER THE KIND OF TRIAL WHICH THE COURT NOW
SAYS IS UNCONSTITUTIONAL.  THE SAME CAN FAIRLY BE SAID ABOUT STATE
PRISONERS CONVICTED IN AT LEAST 14 OTHER STATES LISTED IN APPENDIX A-II
TO THIS OPINION AND FEDERAL PRISONERS CONVICTED IN 6 FEDERAL JUDICIAL
CIRCUITS LISTED IN APPENDIX B-II.  CERTAINLY IF HAVING THE
VOLUNTARINESS OF THEIR CONFESSIONS PASSED ON ONLY BY A JURY IS A
VIOLATION OF THE FOURTEENTH AMENDMENT, AS THE COURT SAYS IT IS, THEN
NOT ONLY JACKSON BUT ALL OTHER STATE AND FEDERAL PRISONERS ALREADY
CONVICTED UNDER THIS PROCEDURE ARE, UNDER OUR HOLDING IN FAY V. NOIA,
372 U.S. 391, ENTITLED TO RELEASE UNLESS THE STATES AND FEDERAL
GOVERNMENT ARE STILL WILLING AND ABLE TO PROSECUTE AND CONVICT THEM. 
CF. DOUGHTY V. MAXWELL, 376 U.S. 202; PICKELSIMER V. WAINWRIGHT, 375
U.S. 2.  THE DISRUPTIVE EFFECT WHICH TODAY'S DECISION WILL HAVE ON THE
ADMINISTRATION OF CRIMINAL JUSTICE THROUGHOUT THE COUNTRY WILL
UNDOUBTEDLY BE GREAT.  BEFORE TODAY'S HOLDING IS EVEN A DAY OLD THE
COURT HAS RELIED ON IT TO VACATE CONVICTIONS IN 11 CASES FROM ARIZONA,
PENNSYLVANIA, TEXAS, NEW YORK, AND THE DISTRICT OF COLUMBIA.  (FN9)
NEVERTHELESS, IF I THOUGHT THAT SUBMITTING THE ISSUE OF VOLUNTARINESS
TO THE JURY REALLY DENIED THE KIND OF TRIAL COMMANDED BY THE
CONSTITUTION, I WOULD NOT HESITATE TO REVERSE ON THAT GROUND EVEN IF IT
MEANT OVERTURNING CONVICTIONS IN ALL THE STATES, INSTEAD OF IN JUST
ABOUT ONE-THIRD OF THEM.  BUT FOR THE REASONS ALREADY STATED IT IS
IMPOSSIBLE FOR ME TO BELIEVE THAT PERMITTING THE JURY ALONE TO PASS ON
FACTUAL ISSUES OF VOLUNTARINESS VIOLATES THE UNITED STATES
CONSTITUTION, WHICH ATTEMPTS IN TWO DIFFERENT PLACES TO GUARANTEE TRIAL
BY JURY.  MY WIDE DIFFERENCE WITH THE COURT IS IN ITS APPARENT HOLDING
THAT IT HAS CONSTITUTIONAL POWER TO CHANGE STATE TRIAL PROCEDURES
BECAUSE OF ITS BELIEF THAT THEY ARE NOT FAIR.  THERE IS NO
CONSTITUTIONAL PROVISION WHICH GIVES THIS COURT ANY SUCH LAWMAKING
POWER.  I ASSUME, ALTHOUGH THE COURT'S OPINION IS NOT CLEAR ON THIS
POINT, THAT THE BASIS FOR ITS HOLDING IS THE "DUE PROCESS OF LAW"
CLAUSE OF THE FOURTEENTH AMENDMENT.  THE COURT APPEARS TO FOLLOW A
JUDICIAL PHILOSOPHY WHICH HAS RELIED ON THAT CLAUSE TO STRIKE DOWN LAWS
AND PROCEDURES IN MANY FIELDS BECAUSE OF A JUDICIAL BELIEF THAT THEY
ARE "UNFAIR," ARE CONTRARY TO "THE CONCEPT OF ORDERED LIBERTY," "SHOCK
THE CONSCIENCE," OR COME WITHIN VARIOUS OTHER VAGUE BUT APPEALING CATCH
PHRASES.  SEE, E.G., BETTS V. BRADY, 316 U.S. 455; ROCHIN V.
CALIFORNIA, 342 U.S. 165; PALKO V. CONNECTICUT, 302 U.S. 319; SEE ALSO
CASES COLLECTED IN ADAMSON V. CALIFORNIA, 332 U.S. 46, 83, N. 12
(DISSENTING OPINION).  I HAVE REPEATEDLY OBJECTED TO THE USE OF THE DUE
PROCESS CLAUSE TO GIVE JUDGES SUCH A WIDE AND UNBOUNDED POWER, WHETHER
IN CASES INVOLVING CRIMINAL PROCEDURE, SEE, E.G., BETTS V. BRADY,
SUPRA, 316 U.S., AT 474 (DISSENTING OPINION); CF. GIDEON V. WAINWRIGHT,
372 U.S. 335, OR ECONOMIC LEGISLATION, SEE FERGUSON V. SKRUPA, 372 U.S.
726.  BELIEVE THAT "DUE PROCESS OF LAW" AS IT APPLIES TO TRIALS MEANS,
AS THIS COURT HELD IN CHAMBERS V. FLORIDA, 309 U.S. 227, 235-238, A
TRIAL ACCORDING TO THE "LAW OF THE LAND," INCLUDING ALL CONSTITUTIONAL
GUARANTEES, BOTH EXPLICIT AND NECESSARILY IMPLIED FROM EXPLICIT
LANGUAGE, AND ALL VALID LAWS ENACTED PURSUANT TO CONSTITUTIONALLY
GRANTED POWERS.  SEE ALSO ADAMSON V. CALIFORNIA, SUPRA, 332 U.S., AT 68
(DISSENTING OPINION).  I THINK THAT THE NEW YORK LAW HERE HELD INVALID
IS IN FULL ACCORD WITH ALL THE GUARANTEES OF THE FEDERAL CONSTITUTION
AND THAT IT SHOULD NOT BE HELD INVALID BY THIS COURT BECAUSE OF A
BELIEF THAT THE COURT CAN IMPROVE ON THE CONSTITUTION. 

  II. 

THE FIFTH AMENDMENT PROVIDES THAT NO PERSON SHALL IN ANY CRIMINAL
CASE BE COMPELLED TO BE A WITNESS AGAINST HIMSELF.  WE HAVE HELD IN
MALLOY V. HOGAN, ANTE, P. 1, THAT THE FOURTEENTH AMENDMENT MAKES THIS
PROVISION APPLICABLE TO THE STATES.  AND WE HAVE HELD THAT THIS
PROVISION MEANS THAT COERCED CONFESSIONS CANNOT BE USED AS EVIDENCE TO
CONVICT A DEFENDANT CHARGED WITH CRIME.  SEE, E.G., HAYNES V.
WASHINGTON, 373 U.S. 503; CHAMBERS V. FLORIDA, 309 U.S. 227; BROWN V.
MISSISSIPPI, 297 U.S. 278.  IT IS OUR DUTY WHEN A CONVICTION FOR CRIME
COMES TO US BASED IN PART ON A CONFESSION TO REVIEW THE RECORD TO
DECIDE FOR OURSELVES WHETHER THAT CONFESSION WAS FREELY AND VOLUNTARILY
GIVEN.  IN SO DOING WE MUST REEXAMINE THE FACTS TO BE CERTAIN THAT
THERE HAS BEEN NO CONSTITUTIONAL VIOLATION, AND OUR INQUIRY TO
DETERMINE THE FACTS ON WHICH CONSTITUTIONAL RIGHTS DEPEND CANNOT BE CUT
OFF BY FACTFINDINGS AT THE TRIAL, WHETHER BY JUDGE OR BY JURY. 
BLACKBURN V. ALABAMA, 361 U.S. 199, 205, N. 5; PAYNE V. ARKANSAS, 356
U.S. 560, 561-562; CF.  UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S.
11, 18-19.  IN THE PRESENT CASE THE UNDISPUTED EVIDENCE SHOWED: 

PETITIONER COMMITTED A ROBBERY IN A HOTEL IN NEW YORK.  HE RAN FROM
THE PLACE TO GET AWAY, WAS ACCOSTED BY A POLICEMAN, AND AFTER SOME
WORDS EACH SHOT THE OTHER.  THE POLICEMAN DIED.  PETITIONER CAUGHT A
CAB AND WENT DIRECTLY TO A HOSPITAL, ARRIVING THERE ABOUT 2 A.M.  IN
RESPONSE TO A QUESTION HE ADMITTED THAT HE HAD SHOT THE POLICEMAN.  BY
3:35 A.M. HE HAD LOST A CONSIDERABLE AMOUNT OF BLOOD FROM SERIOUS
GUNSHOT WOUNDS IN HIS LIVER AND ONE LUNG AND WAS AWAITING AN OPERATION
WHICH BEGAN ABOUT AN HOUR LATER AND LASTED ABOUT TWO HOURS.  AT 3:55 HE
WAS GIVEN DOSES OF DEMEROL AND SCOPOLAMINE, WHICH ARE SEDATIVE AND
RELAXING IN THEIR EFFECTS.  DURING ALL THE TIME HE WAS IN THE HOSPITAL
POLICEMEN WERE THERE.  HE HAD NO COUNSEL PRESENT AND NO FRIENDS. 
IMMEDIATELY AFTER THE DEMEROL AND SCOPOLAMINE WERE GIVEN HIM THE
ASSISTANT DISTRICT ATTORNEY AND A STENOGRAPHER ARRIVED.  AT THE TIME HE
WAS QUESTIONED BY THE ASSISTANT DISTRICT ATTORNEY HE WAS THIRSTY AND
ASKED FOR WATER WHICH WAS DENIED HIM EITHER BECAUSE, AS HE TESTIFIED,
HE COULD GET NO WATER UNTIL HE CONFESSED, OR BECAUSE, AS THE STATE'S
WITNESSES TESTIFIED, IT WAS THE HOSPITAL'S RULE NOT TO GIVE WATER TO
PREOPERATIVE PATIENTS.  WHILE IN THIS SITUATION AND CONDITION HE GAVE
IN ANSWER TO QUESTIONS THE CONFESSION THAT WAS USED AGAINST HIM. 

THIS LAST CONFESSION (BUT NOT THE FIRST STATEMENT, GIVEN AT 2 A.M.) 
WAS, I THINK, SHOWN BY THE ABOVE EVIDENCE WITHOUT MORE TO HAVE BEEN
GIVEN UNDER CIRCUMSTANCES THAT WERE "INHERENTLY COERCIVE," SEE ASHCRAFT
V. TENNESSEE, 322 U.S. 143, 154, AND THEREFORE WAS NOT CONSTITUTIONALLY
ADMISSIBLE UNDER THE FIFTH AND FOURTEENTH AMENDMENTS.  FOR THIS REASON
I WOULD REVERSE THE JUDGMENT BELOW AND REMAND THE CASE TO THE DISTRICT
COURT WITH DIRECTIONS TO GRANT THE PETITIONER'S APPLICATION FOR HABEAS
CORPUS AND TO RELEASE HIM FROM CUSTODY UNLESS THE STATE WITHIN A
REASONABLE TIME SETS ASIDE HIS FORMER CONVICTION AND GRANTS HIM A NEW
TRIAL. 

     III. 

THE COURT, INSTEAD OF REVERSING FOR AN ENTIRE NEW TRIAL, GIVES NEW
YORK A REASONABLE TIME FOR A JUDGE TO HOLD A NEW HEARING, INCLUDING THE
TAKING OF NEW TESTIMONY, TO DETERMINE WHETHER THE CONFESSION WAS
VOLUNTARY.  EVEN WERE I TO ACCEPT THE COURT'S HOLDING THAT THE NEW YORK
RULE IS UNCONSTITUTIONAL, I SHOULD AGREE WITH MY BROTHER CLARK THAT
WHAT JACKSON IS ENTITLED TO IS A COMPLETE NEW TRIAL.  THE COURT'S
ACTION MAKES USE OF THE TECHNIQUE RECENTLY INVENTED IN UNITED STATES V.
SHOTWELL MFG. CO., 355 U.S. 233, UNDER WHICH A DEFENDANT IS SUBJECTED
TO "PIECEMEAL PROSECUTION."  355 U.S., AT 250 (DISSENTING OPINION).  I
THINK, AS I SAID IN SHOTWELL, THAT SUCH A FRAGMENTIZING PROCESS
VIOLATES THE SPIRIT OF THE CONSTITUTIONAL PROTECTION AGAINST DOUBLE
JEOPARDY, EVEN IF IT DOES NOT INFRINGE IT TECHNICALLY.  IN SHOTWELL THE
USE OF THE PIECEMEAL PROCEDURE WAS JUSTIFIED BY WHAT WERE CALLED THE
"PECULIAR CIRCUMSTANCES" OF THAT CASE.  355 U.S., AT 243.  BUT, AS THIS
CASE DEMONSTRATES, THE AVAILABILITY AND USEFULNESS OF THE SHOTWELL
DEVICE IN SUSTAINING CONVICTIONS AND DENYING DEFENDANTS A NEW TRIAL
WHERE ALL THE FACTS ARE HEARD TOGETHER ARE TOO APPARENT FOR ITS USE TO
BE CONFINED TO EXCEPTIONAL CASES.  I THINK SHOTWELL WAS WRONG AND
SHOULD BE OVERRULED, NOT EXTENDED AS THE COURT IS DOING.    FN1  I AM
BY NO MEANS SUGGESTING THAT I BELIEVE THAT IT IS WITHIN THIS COURT'S
POWER TO TREAT AS UNCONSTITUTIONAL EVERY STATE LAW OR PROCEDURE THAT
THE COURT BELIEVES TO BE "UNFAIR." 

FN2  THE TRIAL JUDGE MAY SET ASIDE A VERDICT IF HE BELIEVES IT TO BE
"AGAINST THE WEIGHT OF THE EVIDENCE."  THE STATE APPELLATE COURTS
EXERCISE THE SAME POWER AND MAY SET VERDICTS ASIDE IF FOR ANY REASON
THEY BELIEVE THAT "JUSTICE REQUIRES" THEM TO DO SO.  SEE N.Y.  CODE
CRIM. PROC. SECS. 465, 528.    FN3  MORGAN, FUNCTIONS OF JUDGE AND JURY
IN THE DETERMINATION OF PRELIMINARY QUESTIONS OF FACT, 43 HARV. L. REV.
165, 168-169 (1929); MELTZER, INVOLUNTARY CONFESSIONS:  THE ALLOCATION
OF RESPONSIBILITY BETWEEN JUDGE AND JURY, 21 U. CHI.  L. REV. 317, 325
326 (1954). 

FN4  FOR A SURVEY OF THE RULE IN THE VARIOUS STATES AND IN THE
FEDERAL JUDICIAL CIRCUITS, SEE APPENDICES A AND B. 

FN5  SEE APPENDIX A. 

FN6  SEE APPENDIX A. 

FN7  THE COURT'S OPINION INDICATES THAT THE JUDGE WILL NOT MAKE ANY
SUCH STATEMENT TO THE JURY.  IF THE COURT HERE IS HOLDING THAT IT IS
CONSTITUTIONALLY IMPERMISSIBLE FOR THE JUDGE TO TELL THE JURY THAT HE
HIMSELF HAS DECIDED THAT THE CONFESSION IS VOLUNTARY, THAT IS ONE
THING.  AS I READ THE DECISIONS IN THIS FIELD, HOWEVER, I AM FAR FROM
PERSUADED THAT THERE ARE NOT MANY STATES IN WHICH THE JUDGE DOES ADMIT
THE CONFESSION ALONG WITH HIS STATEMENT THAT IT IS VOLUNTARY. 

FN8  NEW YORK CONST., ART. I, SEC. 2, ALSO PROVIDES THAT A DEFENDANT
MAY NOT WAIVE TRIAL BY JURY IF THE CRIME WITH WHICH HE IS CHARGED MAY
BE PUNISHABLE BY DEATH. 

FN9  MCNERLIN V. DENNO, POST, P. 575 (TRIAL IN NEW YORK COURT);
MUSCHETTE V. UNITED STATES, POST, P. 569 (C.A.D.C. CIR.); PEA V. UNITED
STATES, POST, P, 571 (C.A.D.C. CIR.); OWEN V. ARIZONA, POST, P. 574;
CATANZARO V. NEW YORK, POST, P. 573; DEL HOYO V. NEW YORK, POST, P.
570; LATHAN V. NEW YORK, POST, P. 566; OISTER V. PENNSYLVANIA, POST, P.
568; SENK V. PENNSYLVANIA, POST, P. 562; HARRIS V. TEXAS, POST, P. 572;
LOPEZ V. TEXAS, POST, P. 567.  SEE ALSO BERMAN V. UNITED STATES, POST,
P. 530, AT 532, N. (DISSENTING OPINION). 

                  APPENDIX A TO OPINION OF MR. JUSTICE BLACK. 

   RULES FOLLOWED IN THE STATES TO DETERMINE VOLUNTARINESS OF
CONFESSIONS. 

THE DECISIONS CITED BELOW ARE LEADING CASES OR CASES ILLUSTRATING THE
RULES FOLLOWED IN THE RESPECTIVE STATES; THE LISTINGS ARE NOT
EXHAUSTIVE.  THIS CLASSIFICATION DOES NOT TAKE ACCOUNT OF SUCH
VARIABLES AS BURDEN OF PROOF, WHETHER A PRELIMINARY HEARING IS HELD,
WHETHER THE JURY IS PRESENT AT SUCH A HEARING, ETC.  A FEW STATES HAVE
TWO OR MORE LINES OF CASES SUGGESTING APPROVAL OF TWO OR MORE
CONFLICTING RULES; IN SUCH SITUATIONS THE STATE IS LISTED UNDER THE
VIEW WHICH IN LIGHT OF MOST RECENT CASES APPEARS THE DOMINANT ONE, AND
DECISIONS SEEMINGLY INCONSISTENT ARE POINTED OUT.   WHERE A COURT
CLEARLY HAS CHANGED FROM ONE RULE TO ANOTHER, EVEN THOUGH WITHOUT
SPECIFICALLY OVERRULING ITS EARLIER DECISIONS, THOSE EARLIER DECISIONS
ARE NOT CITED.  E.G., COMMONWEALTH V. KNAPP, 10 PICK.  (27 MASS.) 477,
495-496 (1830), APPROVED THE "ORTHODOX" RULE, WHICH, SINCE COMMONWEALTH
V. PREECE, 140 MASS. 276, 277, 5 N.E. 494, 495 (1885), IS NO LONGER
FOLLOWED IN MASSACHUSETTS.  (FN1) 

AS THE COURT, MY BROTHER HARLAN, AND COMMENTATORS IN THIS FIELD HAVE
APTLY POINTED OUT, THE RULES STATED IN THE DECISIONS ARE NOT ALWAYS
CLEAR, SO THAT IN SOME CASES THERE MAY BE ROOM FOR DOUBT AS TO
PRECISELY WHAT PROCEDURE A STATE FOLLOWS.  I BELIEVE, HOWEVER, THAT A
FULL AND FAIR READING OF THE CASES LISTED BELOW AS FOLLOWING THE NEW
YORK RULE WILL SHOW THAT THERE IS EVERY REASON TO BELIEVE THAT MANY
PEOPLE HAVE BEEN CONVICTED OF CRIMES IN THOSE STATES WITH CASES SO
CLASSIFIED AFTER TRIALS IN WHICH JUDGES DID NOT RESOLVE FACTUAL ISSUES
AND DETERMINE THE QUESTION OF VOLUNTARINESS. 

                     I. WIGMORE (FN2) OR "ORTHODOX" RULE. 

JUDGE HEARS ALL THE EVIDENCE AND THEN RULES ON VOLUNTARINESS FOR
PURPOSE OF ADMISSIBILITY OF CONFESSION; JURY CONSIDERS VOLUNTARINESS AS
AFFECTING WEIGHT OR CREDIBILITY OF CONFESSION. 

ALABAMA:  PHILLIPS V. STATE, 248 ALA. 510, 520, 28 SO. 2D 542, 550
(1946); BLACKBURN V. STATE, 38 ALA. APP. 143, 149, 88 SO. 2D 199, 204
(1954), CERT. DENIED, 264 ALA. 694, 88 SO. 2D 205 (1956), VACATED AND
REMANDED ON ANOTHER POINT SUB NOM. BLACKBURN V. ALABAMA, 354 U.S. 393
(1957), AFF'D, 40 ALA. APP. 116, 109 SO. 2D 736 (1958), CERT. DENIED,
268 ALA.  699, 109 SO. 2D 738 (1959), REV'D ON ANOTHER POINT SUB NOM.
BLACKBURN V. ALABAMA, 361 U.S. 199 (1960). 

COLORADO:  READ V. PEOPLE, 122 COLO. 308, 318-319, 221 P.2D 1070,
1076 (1950); DOWNEY V. PEOPLE, 121 COLO. 307, 317, 215 P.2D 892, 897
(1950); OSBORN V. PEOPLE, 83 COLO. 4, 29-30, 262 P. 892, 901 (1927);
FINCHER V. PEOPLE, 26 COLO. 169, 173, 56 P. 902, 904 (1899).  BUT SEE
BRUNER V. PEOPLE, 113 COLO. 194, 217-218, 156 P.2D 111, 122
(1945)(SEEMS TO STATE MASSACHUSETTS RULE).  AND SEE ROPER V. PEOPLE,
116 COLO. 493, 497-499, 179 P.2D 232, 234-235 (1947)(APPROVES BRUNER
BUT ALSO QUOTES FROM OSBORN V. PEOPLE, SUPRA, A CASE CLEARLY STATING
THE "ORTHODOX" RULE). 

CONNECTICUT:  STATE V. BUTEAU, 136 CONN. 113, 124, 68 A.2D 681, 686
(1949), CERT. DENIED, 339 U.S. 903 (1950); STATE V. MCCARTHY, 133 CONN.
171, 177, 49 A.2D 594, 597 (1946). 

FLORIDA:  LEACH V. STATE, 132 SO. 2D 329, 333 (1961), CERT. DENIED,
368 U.S. 1005 (1962); GRAHAM V. STATE, 91 SO. 2D 662, 663-664 (1956);
BATES V. STATE, 78 FLA. 672, 676, 84 SO.  373, 374-375 (1919). 

ILLINOIS:  PEOPLE V. MILLER, 13 ILL. 2D 84, 97, 148 N.E.2D 455, 462,
CERT. DENIED, 357 U.S. 943 (1958); PEOPLE V. FOX, 319 ILL. 606, 616
619; 150 N.E. 347, 351-352 (1926). 

INDIANA:  CAUDILL V. STATE, 224 IND. 531, 538, 69 N.E.2D 549, 552
(1946). 

KANSAS:  STATE V. SEWARD, 163 KAN. 136, 144-146, 181 P.2D 478, 484
485 (1947); STATE V. CURTIS, 93 KAN. 743, 750-751, 145 P. 858, 861
(1915). 

KENTUCKY: KY. REV. STAT. SEC. 422.110; COOPER V. COMMONWEALTH, 374
S.W.2D 481, 482-483 (1964); BASS V. COMMONWEALTH, 296 KY. 426, 431, 177
S.W.2D 386, 388, CERT. DENIED, 323 U.S. 745 (1944); HERD V.
COMMONWEALTH, 294 KY. 154, 156-157, 171 S.W.2D 32, 33 (1943). 

LOUISIANA:  STATE V. FREEMAN, 245 LA. 665, 670-671, 160 SO. 2D 571,
573 (1964); STATE V. KENNEDY, 232 LA. 755, 762-763, 95 SO. 2D 301, 303
(1957); STATE V. WILSON, 217 LA. 470, 486, 46 SO. 2D 738, 743-744
(1950), AFF'D, 341 U.S. 901 (1951). 

MISSISSIPPI:  JONES V. STATE, 228 MISS.  458, 474-475, 88 SO. 2D 91,
98 (1956); BROOKS V. STATE, 178 MISS.  575, 581-582, 173 SO. 409, 411
(1937); ELLIS V. STATE, 65 MISS.  44, 47-48, 3 SO. 188, 189-190
(1887). 

MONTANA:  STATE V. ROSSELL, 113 MON.  457, 466, 127 P.2D 379, 383
(1942); STATE V. DIXSON, 80 MONT. 181, 196, 260 P. 138, 144 (1927);
STATE V. SHERMAN, 35 MONT. 512, 518-519, 90 P. 981, 982 (1907). 

NEW MEXICO:  STATE V. ARMIJO, 64 N.M. 431, 434-435, 329 P.2D 785, 787
788 (1958); STATE V. ASCARATE, 21 N.M. 191, 201-202, 153 P. 1036, 1039
(1915), APPEAL DISMISSED, 245 U.S. 625 (1917).  BUT CF. STATE V.
ARMIJO, 18 N.M. 262, 268, 135 P. 555, 556-557 (1913)(DICTUM THAT TRIAL
JUDGE MAY IN HIS DISCRETION FOLLOW MASSACHUSETTS RULE). 

NORTH CAROLINA:  STATE V. OUTING, 255 N.C. 468, 472, 121 S.E.2D 847,
849 (1961); STATE V. DAVIS, 253 N.C. 86, 94-95, 116 S.E.2D 365, 370
(1960), CERT. DENIED, 365 U.S. 855 (1961). 

NORTH DAKOTA:  STATE V. ENGLISH, 85 N.W.2D 427, 430 (1957); STATE V.
NAGEL, 75 N.D. 495, 515-516, 28 N.W.2D 665, 677 (1947); STATE V. KERNS,
50 N.D. 927, 935-936, 198 N.W. 698, 700 (1924). 

TENNESSEE:  TINES V. STATE, 203 TENN. 612, 619, 315 S.W.2D 111, 114
(1958), CERT. DENIED, 358 U.S. 889 (1958); WYNN V. STATE, 181 TENN.
325, 328-329, 181 S.W.2D 332, 333 (1944); CF. BOYD V. STATE, 2 HUMPH. 
(21 TENN.) 39, 40-41 (1840). 

UTAH:  STATE V. BRAASCH, 119 UTAH 450, 455, 229 P.2D 289, 291 (1951),
CERT. DENIED, 342 U.S. 910 (1952); STATE V. MARES, 113 UTAH 225, 243
244, 192 P.2D 861, 870 (1948); STATE V. CRANK, 105 UTAH 332, 346-355,
142 P.2D 178, 184-188 (1943). 

VERMONT:  STATE V. BLAIR, 118 VT. 81, 85, 99 A.2D 677, 680 (1953);
STATE V. WATSON, 114 VT.  543, 548, 49 A.2D 174, 177 (1946); STATE V.
LONG, 95 VT. 485, 490, 115 A. 734, 737 (1922). 

VIRGINIA:  DURRETTE V. COMMONWEALTH, 201 VA. 735, 744, 113 S.E.2D
842, 849 (1960); CAMPBELL V. COMMONWEALTH, 194 VA. 825, 830, 75 S.E.2D
468, 471 (1953); JACKSON V. COMMONWEALTH, 193 VA. 664, 673, 70 S.E.2D
322, 327 (1952). 

WASHINGTON:  STATE V. MOORE, 60 WASH. 2D 144, 146-147, 372 P.2D 536,
538 (1962); STATE V. HOLMAN, 58 WASH. 2D 754, 756-757, 364 P.2D 921,
922-923 (1961). 

WEST VIRGINIA:  STATE V. VANCE, 146 W.VA. 925, 934, 124 S.E.2D 252,
257 (1962); STATE V. BRADY, 104 W.VA. 523, 529-530, 140 S.E. 546, 549
(1927). 

                               II.  "NEW YORK" RULE. 

IF THERE IS A FACTUAL CONFLICT IN THE EVIDENCE AS TO VOLUNTARINESS
OVER WHICH REASONABLE MEN COULD DIFFER, THE JUDGE LEAVES THE QUESTION
OF VOLUNTARINESS TO THE JURY. 

ARKANSAS:  MONTS V. STATE, 233 ARK. 816, 823, 349 S.W.2D 350, 355
(1961); BURTON V. STATE, 204 ARK. 548, 550-551, 163 S.W.2D 160, 162
(1942); MCCLELLAN V. STATE, 203 ARK. 386, 393-394, 156 S.W.2D 800, 803
(1941). 

DISTRICT OF COLUMBIA:  WRIGHT V. UNITED STATES, 102 U.S. APP. D.C.
36, 45, 250 F.2D 4, 13 (1957); CATOE V. UNITED STATES, 76 U.S. APP.
D.C. 292, 295, 131 F.2D 16, 19 (1942); MCAFFEE V. UNITED STATES, 70
APP. D.C. 142, 145, 105 F.2D 21, 24 (1939), 72 APP. D.C. 60, 65, 111
F.2D 199, 204, CERT. DENIED, 310 U.S. 643 (1940); CF. SAWYER V. UNITED
STATES, 112 U.S. APP. D.C. 381, 303 F.2D 392, 393 (1962). 

GEORGIA:  DOWNS V. STATE, 208 GA. 619, 621, 68 S.E.2D 568, 569-570
(1952); GARRETT V. STATE, 203 GA. 756, 762-763, 48 S.E.2D 377, 382
(1948); COKER V. STATE, 199 GA. 20, 23-25, 33 S.E.2D 171, 173-174
(1945); BRYANT V. STATE, 191 GA. 686, 710-711, 13 S.E.2D 820, 836-837
(1941). 

IOWA:  STATE V. JONES, 253 IOWA 829, 834-835, 113 N.W.2D 303, 307
(1962); STATE V. HOFER, 238 IOWA 820, 828, 829, 28 N.W.2D 475, 480
(1947); STATE V. JOHNSON, 210 IOWA 167, 171, 230 N.W. 513, 515 (1930). 

MICHIGAN:  PEOPLE V. CROW, 304 MICH. 529, 531, 8 N.W.2D 164, 165
(1943); PEOPLE V. PRESTON, 299 MICH. 484, 493-494, 300 N.W. 853, 857
(1941). 

MINNESOTA:  STATE V. SCHABERT, 218 MINN. 1, 7-9, 15 N.W.2D 585, 588
(1944)(STATES NEW YORK RULE ALTHOUGH ALSO CITES BOTH NEW YORK RULE AND
MASSACHUSETTS RULE CASES). 

MISSOURI:  STATE V. GOACHER, 376 S.W.2D 97, 103 (1964); STATE V.
BRIDGES, 349 S.W.2D 214, 219 (1961); STATE V. LASTER, 365 MO. 1076,
1081-1082, 293 S.W.2D 300, 303-304, CERT. DENIED, 352 U.S. 936 (1956). 
CF. STATE V. STATLER, 331 S.W.2D 526, 530 (1960)(QUESTION OF
VOLUNTARINESS OF CONFESSION SHOULD BE SUBMITTED TO JURY "IF THERE IS
SUBSTANTIAL CONFLICTING EVIDENCE ON THE ISSUE AND IF THE ISSUE IS
CLOSE"); ACCORD, STATE V. PHILLIPS, 324 S.W.2D 693, 696-697 (1959);
STATE V. GIBILTERRA, 342 MO. 577, 584-585, 116 S.W.2D 88, 93-94
(1938). 

NEW YORK:  PEOPLE V. PIGNATARO, 263 N.Y. 229, 240-241, 188 N.E. 720,
724 (1934); PEOPLE V. WEINER, 248 N.Y. 118, 122, 161 N.E. 441, 443
(1928); PEOPLE V. DORAN, 246 N.Y. 409, 416-418, 159 N.E. 379, 381-382
(1927). 

OHIO:  IF THE EVIDENCE AS TO VOLUNTARINESS IS CONFLICTING, THE TRIAL
JUDGE MAY IN HIS DISCRETION FOLLOW THE NEW YORK RULE; OTHERWISE HE MAY
FOLLOW THE "ORTHODOX" RULE.  BURDGE V. STATE, 53 OHIO ST. 512, 516-518,
42 N.E. 594, 595-596 (1895); STATE V. POWELL, 105 OHIO APP. 529, 530
531, 148 N.E.2D 230, 231 (1957), APPEAL DISMISSED, 167 OHIO ST. 319,
148 N.E.2D 232 (1958), CERT. DENIED, 359 U.S. 964 (1959); STATE V.
HENSLEY, 31 OHIO L. ABS.  348, 349-350 (1939). 

OREGON:  STATE V. BODI, 223 ORE.  486, 491, 354 P.2D 831, 833-834
(1960); STATE V. NUNN, 212 ORE.  546, 554, 321 P.2D 356, 360 (1958). 

PENNSYLVANIA:  COMMONWEALTH V. SENK, 412 PA. 184, 194, 194 A.2D 221,
226 (1963), VACATED AND REMANDED ON AUTHORITY OF THE PRESENT CASE SUB
NOM. SENK V. PENNSYLVANIA, POST, P. 562; COMMONWEALTH V. OISTER, 201
PA. SUPER.  251, 257-258; 191 A.2D 851, 854 (1963), VACATED AND
REMANDED ON AUTHORITY OF THE PRESENT CASE SUB NOM. OISTER V.
PENNSYLVANIA, POST, P. 568; COMMONWEALTH V. ROSS, 403 PA. 358, 365, 169
A.2D 780, 784, CERT. DENIED, 368 U.S. 904 (1961); COMMONWEALTH V.
SPARDUTE, 278 PA. 37, 48, 122 A. 161, 165 (1923). 

PUERTO RICO:  PEOPLE V. FOURNIER, 77 P.R. 208, 243-244 (1954); PEOPLE
V. DECLET, 65 P.R.  22, 25 (1945). 

SOUTH CAROLINA:  STATE V. BULLOCK, 235 S.C. 356, 366-367, 111 S.E.2D
657, 662 (1959), APPEAL DISMISSED, 365 U.S. 292 (1961); STATE V.
LIVINGSTON, 223 S.C. 1, 6, 73 S.E.2D 850, 852 (1952), CERT. DENIED, 345
U.S. 959 (1953); STATE V. SCOTT, 209 S.C. 61, 64, 38 S.E.2D 902, 903
(1946). 

SOUTH DAKOTA:  STATE V. NICHOLAS, 62 S.D. 511, 515, 253 N.W. 737, 738
739 (1934); STATE V. MONTGOMERY, 26 S.D. 539, 542, 128 N.W. 718, 719
(1910)(QUESTION OF VOLUNTARINESS OF CONFESSION SHOULD BE SUBMITTED TO
JURY "IF THE EVIDENCE SUBMITTED TO THE COURT SHOULD BE CONFLICTING,
LEAVING IN THE MIND OF THE COURT ANY QUESTION AS TO THE COMPETENCY OF
SUCH CONFESSION"); CF. STATE V. HINZ, 78 S.D. 442, 449-450, 103 N.W.2D
656, 660 (1960). 

TEXAS:  HARRIS V. STATE, 370 S.W.2D 886, 887 (1963), VACATED AND
REMANDED ON AUTHORITY OF THE PRESENT CASE SUB NOM. HARRIS V. TEXAS,
POST, P. 572; LOPEZ V. STATE, 366 S.W.2D 587 (1963), VACATED AND
REMANDED ON AUTHORITY OF THE PRESENT CASE SUB NOM. LOPEZ V. TEXAS,
POST, P. 567; MARRUFO V. STATE, 172 TEX. CR. R. 398, 402, 357 S.W.2D
761, 764 (1962); ODIS V. STATE, 171 TEX. CR. R. 107, 109, 345 S.W.2D
529, 530-53 1 (1961); NEWMAN V. STATE, 148 TEX. CR. R. 645, 649-650,
187 S.W.2D 559, 561-562 (1945), CERT. DENIED, 326 U.S. 772 (1945);
GIPSON V. STATE, 147 TEX. CR. R. 428, 429, 181 S.W.2D 76, 77 (1944);
WARD V. STATE, 144 TEX.  CR. R. 444, 449, 158 S.W.2D 516, 518 (1941),
REV'D ON ANOTHER POINT SUB NOM. WARD V. TEXAS, 316 U.S. 547 (1942). 
BUT CF. BINGHAM V. STATE, 97 TEX. CR. R. 594, 596-601, 262 S.W. 747,
749-750 (1924)(PERHAPS STATES MASSACHUSETTS RULE).    WISCONSIN:  STATE
V. BRONSTON, 7 WIS. 2D 627, 638, 97 N.W.2D 504, 511 (1959); POLLACK V.
STATE, 215 WIS. 200, 217, 253 N.W. 560, 567 (1934). 

WYOMING:  CLAY V. STATE, 15 WYO. 42, 59, 86 P. 17, 19 (1906). 

                      III.  "MASSACHUSETTS" OR "HUMANE" RULE. 
JUDGE HEARS ALL THE EVIDENCE AND RULES ON VOLUNTARINESS BEFORE ALLOWING
CONFESSION INTO EVIDENCE; IF HE FINDS THE CONFESSION VOLUNTARY, JURY IS
THEN INSTRUCTED THAT IT MUST ALSO FIND THAT THE CONFESSION WAS
VOLUNTARY BEFORE IT MAY CONSIDER IT. 

ALASKA:  SMITH V. UNITED STATES, 268 F.2D 416, 420-421 (C.A. 9TH CIR.
1959). 

ARIZONA:  STATE V. HUDSON, 89 ARIZ. 103, 106, 358 P.2D 332, 333-334
(1960); STATE V. PULLIAM, 87 ARIZ. 216, 220-223, 349 P.2D 781, 784
(1960); STATE V. HOOD, 69 ARIZ. 294, 299-300, 213 P.2D 368, 371-372
(1950); STATE V. JOHNSON, 69 ARIZ. 203, 206, 211 P.2D 469, 471 (1949). 
BUT SEE STATE V. FEDERICO, 94 ARIZ. 413, 385 P.2D 706 (1963), VACATED
AND REMANDED ON AUTHORITY OF THE PRESENT CASE SUB NOM. OWEN V. ARIZONA,
POST, P. 574; STATE V. OWEN, 94 ARIZ. 404, 409, 385 P.2D 700, 703
(1963), VACATED AND REMANDED ON AUTHORITY OF THE PRESENT CASE SUB NOM.
OWEN V. ARIZONA, POST, P. 574; STATE V. PREIS, 89 ARIZ. 336, 338, 362
P.2D 660, 661, CERT. DENIED, 368 U.S. 934 (1961)(SEEM TO STATE OR
FOLLOW NEW YORK RULE). 

CALIFORNIA:  PEOPLE V. BEVINS, 54 CAL. 2D 71, 76-77, 351 P.2D 776,
779-780 (1960); PEOPLE V. CROOKER, 47 CAL. 2D 348, 353-355, 303 P.2D
753, 757-758 (1956), AFF'D SUB NOM. CROOKER V. CALIFORNIA, 357 U.S. 433
(1958); PEOPLE V. GONZALES, 24 CAL. 2D 870, 876-877, 151 P.2D 251, 254
255 (1944); PEOPLE V. APPLETON, 152 CAL. APP. 2D 240, 244, 313 P.2D
154, 156 (DIST.  CT. APP. 1957)(TRIAL JUDGE MAY FOLLOW MASSACHUSETTS
RULE AFTER HE HAS FOUND CONFESSION TO BE VOLUNTARY).  CF. PEOPLE V.
CHILDERS, 154 CAL. APP. 2D 17, 20, 315 P.2D 480, 482 (DIST.  CT. APP.
1957)(STATES MASSACHUSETTS RULE WITHOUT QUALIFICATION). 

DELAWARE:  WILSON V. STATE, 49 DEL. 37, 48, 109 A.2D 381, 387 (1954),
CERT. DENIED, 348 U.S. 983 (1955). 

HAWAII:  TERRITORY V. YOUNG, 37 HAW.  189, 193 (1945)(SEMBLE);
TERRITORY V. ALCOSIBA, 36 HAW.  231, 235 (1942)(SEMBLE). 

IDAHO:  STATE V. VAN VLACK, 57 IDAHO 316, 342-343, 65 P.2D 736, 748
(1937).  BUT CF. STATE V. DOWELL, 47 IDAHO 457, 464, 276 P. 39, 41
(1929); STATE V. ANDREASON, 44 IDAHO 396, 401-402, 257 P. 370, 371
(1927)(SEEM TO STATE "ORTHODOX" RULE). 

MAINE:  STATE V. ROBBINS, 135 ME. 121, 121-122, 190 A. 630, 631
(1937); STATE V. GROVER, 96 ME. 363, 365-367, 52 A. 757, 758-759
(1902). 

MARYLAND:  PARKER V. STATE, 225 MD. 288, 291, 170 A.2D 210, 211
(1961); PRESLEY V. STATE, 224 MD. 550, 559, 168 A.2D 510, 515 (1961),
CERT. DENIED, 368 U.S. 957 (1962); HALL V. STATE, 223 MD. 158, 169-170,
162 A.2D 751, 757 (1960); LINKINS V. STATE, 202 MD. 212, 221-224, 96
A.2D 246, 250-252 (1953); SMITH V. STATE, 189 MD. 596, 603-606, 56 A.2D
818, 821-822 (1948).  BUT CF. GRAMMER V. STATE, 203 MD. 200, 218-219,
100 A.2D 257, 265 (1953), CERT. DENIED, 347 U.S. 938 (1954); JONES V.
STATE, 188 MD. 263, 270-271, 52 A.2D 484, 487-488 (1947); PETERS V.
STATE, 187 MD. 7, 15-16, 48 A.2D 586, 590 (1946); NICHOLSON V. STATE,
38 MD. 140, 155-157 (1873)(NOT DISAPPROVED IN LATER CASES, APPEAR TO
STATE "ORTHODOX" RULE). 

MASSACHUSETTS:  COMMONWEALTH V. SHEPPARD, 313 MASS. 590, 603-604, 48
N.E.2D 630, 639 (1943); COMMONWEALTH V. PREECE, 140 MASS. 276, 277, 5
N.E. 494, 495 (1885). 

NEBRASKA:  CRAMER V. STATE, 145 NEB. 88, 97-98, 15 N.W.2D 323, 328
329 (1944); SCHLEGEL V. STATE, 143 NEB. 497, 500, 10 N.W.2D 264, 266
(1943); CF. GALLEGOS V. STATE, 152 NEB.  831, 837-840, 43 N.W.2D 1, 5-6
(1950)(SEMBLE), AFF'D ON ANOTHER POINT SUB NOM. GALLEGOS V. NEBRASKA,
342 U.S. 55 (1951). 

NEW HAMPSHIRE:  STATE V. SQUIRES, 48 N.H. 364, 369-370 (1869)(SEEMS
TO HOLD THAT TRIAL JUDGE MAY IN HIS DISCRETION FOLLOW THE MASSACHUSETTS
RULE; OTHERWISE HE MAY FOLLOW THE "ORTHODOX" RULE). 

NEW JERSEY:  STATE V. TASSIELLO, 39 N.J. 282, 291-292, 188 A.2D 406,
411-412 (1963); STATE V. SMITH, 32 N.J. 501, 557-560, 161 A.2D 520, 550
552 (1960), CERT. DENIED, 364 U.S. 936 (1961). 

OKLAHOMA:  WILLIAMS V. STATE, 93 OKLA. CR. 260, 265, 226 P.2D 989,
993 (1951); LYONS V. STATE, 77 OKLA. CR. 197, 233-237, 138 P.2D 142,
162-163 (1943), AFF'D ON ANOTHER POINT SUB NOM. LYONS V. OKLAHOMA, 322
U.S. 596 (1944); WOOD V. STATE, 72 OKLA. CR. 364, 374-375, 116 P.2D
728, 733 (1941).  BUT CF. CORNELL V. STATE, 91 OKLA. CR. 175, 183-184,
217 P.2D 528, 532-533 (1950); PRESSLEY V. STATE, 71 OKLA. CR. 436, 444
446, 112 P.2D 809, 813-814 (1941); ROWAN V. STATE, 57 OKLA. CR. 345,
362, 49 P.2D 791, 798 (1935)(CASES WHICH APPEAR TO STATE THE "ORTHODOX"
RULE AND ARE NEVERTHELESS CITED WITH APPROVAL IN THE FIRST-NAMED GROUP
OF DECISIONS). 

RHODE ISLAND:  STATE V. BOSWELL, 73 R.I. 358, 361, 56 A.2D 196, 198
(1947); STATE V. MARIANO, 37 R.I. 168, 186-187, 91 A. 21, 29 (1914). 

                       APPENDIX B TO OPINION OF MR. JUSTICE

                                      BLACK. 

                RULES FOLLOWED IN THE FEDERAL JUDICIAL CIRCUITS TO

                      DETERMINE VOLUNTARINESS OF CONFESSIONS. 

IN WILSON V. UNITED STATES, 162 U.S. 613, 624 (1896) THIS COURT SAID
THAT IN FEDERAL CRIMINAL TRIALS "WHEN THERE IS A CONFLICT OF EVIDENCE
AS TO WHETHER A CONFESSION IS OR IS NOT VOLUNTARY, IF THE COURT DECIDES
THAT IT IS ADMISSIBLE, THE QUESTION MAY BE LEFT TO THE JURY WITH THE
DIRECTION THAT THEY SHOULD REJECT THE CONFESSION IF UPON THE WHOLE
EVIDENCE THEY ARE SATISFIED IT WAS NOT THE VOLUNTARY ACT OF THE
DEFENDANT."  THIS LANGUAGE APPEARS TO SANCTION EITHER THE "ORTHODOX"
RULE OR THE MASSACHUSETTS RULE.  THE FEDERAL COURTS IN THE VARIOUS
CIRCUITS, HOWEVER, OFTEN CITING WILSON, HAVE GIVEN IT VARYING
INTERPRETATIONS.  CASES ARE CITED BELOW SUBJECT TO THE SAME
QUALIFICATIONS SET FORTH IN APPENDIX A, SUPRA.

   I. WIGMORE OR "ORTHODOX" RULE. 

FIRST CIRCUIT:  KEMLER V. UNITED STATES, 133 F.2D 235, 239-240
(1943). 

FIFTH CIRCUIT:  ANDREWS V. UNITED STATES, 309 F.2D 127, 129 (1962),
CERT. DENIED, 372 U.S. 946 (1963); SCHAFFER V. UNITED STATES, 221 F.2D
17, 21 (1955); WAGNER V. UNITED STATES, 110 F.2D 595, 596 (1940), CERT.
DENIED, 310 U.S. 643 (1940).  BUT CF. DUNCAN V. UNITED STATES, 197 F.2D
935, 937-938, CERT. DENIED, 344 U.S. 885 (1952); PATTERSON V. UNITED
STATES, 183 F.2D 687, 689-690 (1950)(APPEAR TO STATE MASSACHUSETTS
RULE). 

TENTH CIRCUIT:  MCHENRY V. UNITED STATES, 308 F.2D 700, 704 (1962),
CERT. DENIED, 374 U.S. 833 (1963).  BUT CF. UNITED STATES V. RUHL, 55
F. SUPP. 641, 644-645 (D.C.D. WYO. 1944), AFF'D, 148 F.2D 173, 175
(1945)(APPEARS TO FOLLOW MASSACHUSETTS RULE). 

            II.  "NEW YORK" RULE. 

SECOND CIRCUIT:  UNITED STATES V. LEVITON, 193 F.2D 848, 852 (1951),
CERT. DENIED, 343 U.S. 946 (1952); BUT CF. UNITED STATES V. GOTTFRIED,
165 F.2D 360, 367 (1948), CERT. DENIED, 333 U.S. 860 (1948)("ORTHODOX"
RULE); UNITED STATES V. LUSTIG, 163 F.2D 85, 88-89, CERT. DENIED, 332
U.S. 775 (1947)("ORTHODOX" RULE); UNITED STATES V. AVILES, 274 F.2D
179, 192, CERT. DENIED, 362 U.S. 974, 982 (1960)(APPEARS TO HOLD NO
ERROR TO FOLLOW MASSACHUSETTS RULE). 

THIRD CIRCUIT:  UNITED STATES V. ANTHONY, 145 F. SUPP. 323, 335-336
(D.C.M.D. PA. 1956)(QUOTES DISCRETIONARY RULE OF WILSON V. UNITED
STATES, SUPRA, BUT SEEMS TO APPLY NEW YORK RULE AND CITES PENNSYLVANIA
CASES FOLLOWING IT). 

SIXTH CIRCUIT:  ANDERSON V. UNITED STATES, 124 F.2D 58, 67 (1941),
REV'D ON ANOTHER POINT, 318 U.S. 350 (1943); MCBRYDE V. UNITED STATES,
7 F.2D 466, 467 (1925). 

SEVENTH CIRCUIT:  UNITED STATES V. ECHELES, 222 F.2D 144, 154, CERT.
DENIED, 350 U.S. 828 (1955); COHEN V. UNITED STATES, 291 F. 368, 369
(1923); BUT CF. MURPHY V. UNITED STATES, 285 F. 801, 807-808 (1923),
CERT. DENIED, 261 U.S. 617 (1923)(APPEARS TO STATE "ORTHODOX" RULE). 

EIGHTH CIRCUIT:  HAYES V. UNITED STATES, 296 F.2D 657, 670 (1961),
CERT. DENIED, 369 U.S. 867 (1962); SHORES V. UNITED STATES, 174 F.2D
838, 842 (1949). 

DISTRICT OF COLUMBIA CIRCUIT:  PEA V. UNITED STATES, 116 U.S. APP.
D.C. 410, 324 F.2D 442 (1963), VACATED AND REMANDED ON AUTHORITY OF THE
PRESENT CASE, POST, P. 571; MUSCHETTE V. UNITED STATES, 116 U.S. APP.
D.C. 239, 240, 322 F.2D 989, 990 (1963), VACATED AND REMANDED ON
AUTHORITY OF THE PRESENT CASE, POST, P. 569; WRIGHT V. UNITED STATES,
102 U.S. APP. D.C.  36, 45, 250 F.2D 4, 13 (1957); CATOE V. UNITED
STATES, 76 U.S. APP. D.C. 292, 295, 131 F.2D 16, 19 (1942); MCAFFEE V.
UNITED STATES, 70 APP. D.C. 142, 145, 105 F.2D 21, 24 (1939), 72 APP.
D.C. 60, 65, 111 F.2D 199, 204, CERT. DENIED, 310 U.S. 643 (1940); CF.
SAWYER V. UNITED STATES, 112 U.S. APP. D.C. 381, 303 F.2D 392, 393
(1962). 

                            III.  "MASSACHUSETTS" RULE. 

FOURTH CIRCUIT:  DENNY V. UNITED STATES, 151 F.2D 828, 833 (1945),
CERT. DENIED, 327 U.S. 777 (1946)(APPEARS TO FOLLOW WILSON V. UNITED
STATES, 162 U.S. 613, 624 (1896), AND APPLY MASSACHUSETTS RULE). 

NINTH CIRCUIT:  LEONARD V. UNITED STATES, 278 F.2D 418, 420-421
(1960)(SEMBLE); SMITH V. UNITED STATES, 268 F.2D 416, 420-421 (1959). 
BUT CF. PON WING QUONG V. UNITED STATES, 111 F.2D 751, 757
(1940)("ORTHODOX" RULE). 

MR. JUSTICE CLARK, DISSENTING. 

THE COURT EXAMINES THE VALIDITY, UNDER THE FOURTEENTH AMENDMENT, OF
NEW YORK'S PROCEDURE TO DETERMINE THE VOLUNTARINESS OF A CONFESSION. 
HOWEVER, AS I READ THE RECORD, NEW YORK'S PROCEDURE WAS NOT INVOKED IN
THE TRIAL COURT OR ATTACKED ON APPEAL AND IS NOT PROPERLY BEFORE US.
THE NEW YORK PROCEDURE PROVIDING FOR A PRELIMINARY HEARING COULD BE SET
IN MOTION, AND ITS VALIDITY QUESTIONED, ONLY IF OBJECTION WAS MADE TO
THE ADMISSIBILITY OF THE CONFESSION.  IT IS CLEAR THAT COUNSEL FOR
PETITIONER IN THE TRIAL COURT - A LAWYER OF 50 YEARS' TRIAL EXPERIENCE
IN THE CRIMINAL COURTS, INCLUDING SERVICE ON THE BENCH - DID NOT OBJECT
TO THE INTRODUCTION OF THE STATEMENTS MADE BY THE PETITIONER OR ASK FOR
A PRELIMINARY HEARING.  HIS CONTENTION WAS THAT THE CIRCUMSTANCES OF
THE SEDATION WENT TO THE "WEIGHT" OF THE STATEMENTS, NOT TO THEIR
ADMISSIBILITY.  THIS IS SHOWN BY HIS CROSS-EXAMINATION OF THE STATE'S
DOCTOR AND BY THE DIALOGUE AT THE BENCH THEREAFTER.  (FN1) AND, EVEN
AFTER THIS DIALOGUE, PETITIONER'S COUNSEL NEVER MADE ANY MOTION TO
STRIKE THE STATEMENTS OR ANY OBJECTION TO THEIR USE BY THE JURY, BUT
CHALLENGED ONLY THE WEIGHT TO BE GIVEN THEM.  THIS IS FURTHER SHOWN BY
HIS FAILURE TO RAISE THE CONSTITUTIONALITY OF NEW YORK'S PRACTICE AT
ANY TIME BEFORE VERDICT OR THEREAFTER ON HIS MOTION FOR A NEW TRIAL. 
NOR WAS IT RAISED OR PASSED UPON BY NEW YORK'S COURT OF APPEALS.  THAT
COURT'S AMENDED REMITTITUR SHOWS THAT THE CONSTITUTIONAL QUESTIONS
PASSED UPON WERE WHETHER THE "CONFESSION WAS COERCED" AND WHETHER THE
JUDGE ERRED IN FAILING TO INSTRUCT THE JURY THAT, "IN DETERMINING THE
VOLUNTARY NATURE OF THE CONFESSION, THEY WERE TO CONSIDER HIS PHYSICAL
CONDITION AT THE TIME THEREOF."  10 N.Y.2D 816, 178 N.E.2D 234. 

STILL, THE COURT STRIKES DOWN THE NEW YORK RULE OF PROCEDURE WHICH WE
APPROVED IN STEIN V. NEW YORK, 346 U.S. 156 (1953).  THE TRIAL JUDGE
HAD NO OPPORTUNITY TO PASS UPON THE STATEMENTS BECAUSE NO OBJECTION WAS
RAISED AND NO HEARING WAS REQUESTED.  I AGREE WITH THE COURT THAT "A
DEFENDANT OBJECTING TO THE ADMISSION OF A CONFESSION IS ENTITLED TO A
FAIR HEARING  ...  ."  HOWEVER, I CANNOT SEE WHY THE COURT REACHES OUT
AND STRIKES DOWN A RULE WHICH WAS NOT INVOKED AND WHICH IS THEREFORE
NOT APPLICABLE TO THIS CASE.  IN REACHING OUT FOR THIS QUESTION THE
COURT APPARENTLY RELIES ON FAY V. NOIA, 372 U.S. 391 (1963).  WHILE
THAT CASE SEEMS TO HAVE TURNED INTO A LEGAL "MOTHER HUBBARD" I FAIL TO
SEE HOW IT COULD GOVERN THIS SITUATION. 

THE COURT SEEMS TO IMPLY THAT NEW YORK'S PROCEDURE "INJECTS IRRELEVANT
AND IMPERMISSIBLE CONSIDERATIONS OF TRUTHFULNESS OF THE CONFESSION INTO
THE ASSESSMENT OF VOLUNTARINESS."  I THINK NOT.  THE JUDGE CLEARLY
COVERED THIS IN HIS CHARGE: 

"IF YOU DETERMINE THAT IT WAS A CONFESSION, THE STATEMENT OFFERED
HERE, AND IF YOU DETERMINE THAT JACKSON MADE IT, AND IF YOU DETERMINE
THAT IT IS TRUE; IF YOU DETERMINE THAT IT IS ACCURATE, BEFORE YOU MAY
USE IT, THE LAW STILL SAYS YOU MUST FIND THAT IT IS VOLUNTARY, AND THE
PROSECUTION HAS THE BURDEN OF PROVING THAT IT WAS A VOLUNTARY
CONFESSION." 

THIS LANGUAGE IS JUST THE OPPOSITE OF THAT USED IN ROGERS V.
RICHMOND, 365 U.S. 534 (1961), THE CASE UPON WHICH THE COURT PLACES
PRINCIPAL RELIANCE.  (FN2)  THERE THE JURORS WERE TOLD TO USE THE
CONFESSION IF THEY FOUND IT "IN ACCORD WITH THE TRUTH  ...  ."  AND
CONNECTICUT'S HIGHEST COURT HELD THAT THE QUESTION WAS WHETHER THE
CONDUCT "INDUCED THE DEFENDANT TO CONFESS FALSELY THAT HE HAD COMMITTED
THE CRIME BEING INVESTIGATED."  143 CONN. 167, AT 173, 120 A.2D 409, AT
412.  HERE THE JUDGE WARNED THE JURY THAT EVEN IF THEY FOUND THE
STATEMENTS TRUE, THEY MUST ALSO FIND THEM VOLUNTARY BEFORE THEY MAY USE
THEM.  AND THE PROOF OF VOLUNTARINESS WAS PLACED ON THE STATE.  AS MY
BROTHER BLACK SAYS, THE COURT, IN STRIKING DOWN NEW YORK'S PROCEDURE,
THUS "CHALLENGES THE SOUNDNESS OF THE FOUNDER'S GREAT FAITH IN JURY
TRIALS."  I TOO REGRET THIS "DOWNGRADING OF TRIAL BY JURY" AND JOIN IN
THAT THE CHARGE AMPLY PROTECTED JACKSON FROM THE POSSIBILITY THAT THE
JURY MIGHT HAVE CONFUSED THE QUESTION OF VOLUNTARINESS WITH THE
QUESTION OF TRUTH.  DEPENDENCE ON JURY TRIALS IS THE KEYSTONE OF OUR
SYSTEM OF CRIMINAL JUSTICE AND I REGRET THAT THE COURT LENDS ITS WEIGHT
TO THE DESTRUCTION OF THIS GREAT SAFEGUARD TO OUR LIBERTIES.    BUT
EVEN IF THE TRIAL JUDGE HAD INSTRUCTED THE JURY TO CONSIDER TRUTH OR
FALSITY, THE ORDER HERE SHOULD BE FOR A NEW TRIAL, AS IN ROGERS V.
RICHMOND, SUPRA.  THERE THE COURT OF APPEALS WAS DIRECTED TO HOLD THE
CASE A REASONABLE TIME "IN ORDER TO GIVE THE STATE OPPORTUNITY TO RETRY
PETITIONER  ... ."  AT 549.  BUT THE COURT DOES NOT DO THIS.  IT
STRIKES DOWN NEW YORK'S PROCEDURE AND THEN TELLS NEW YORK - NOT TO
RETRY THE PETITIONER - MERELY TO HAVE THE TRIAL JUDGE HOLD A HEARING ON
THE ADMISSIBILITY OF THE CONFESSION AND ENTER A DEFINITIVE
DETERMINATION ON THAT ISSUE, AS UNDER THE MASSACHUSETTS RULE.  THIS
DOES NOT CURE THE ERROR WHICH THE COURT FINDS PRESENT.  IF THE TRIAL
COURT DID SO ERR, THIS COURT IS MAKING A MORE GRIEVOUS ERROR IN
AMENDING NEW YORK'S RULE HERE AND THEN REQUIRING NEW YORK TO APPLY IT
EX POST FACTO WITHOUT BENEFIT OF A FULL TRIAL.  SURELY UNDER THE
REASONING OF THE COURT, THE PETITIONER WOULD BE ENTITLED TO A NEW
TRIAL. 

BELIEVING THAT THE CONSTITUTIONALITY OF NEW YORK'S RULE IS NOT RIPE
FOR DECISION HERE, I DISSENT.  IF I AM IN ERROR ON THIS, THEN I JOIN MY
BROTHER HARLAN.  HIS DISSENT IS UNANSWERABLE. 

FN1  "THE COURT:  JUDGE HEALY RAISED THE POINT IN CROSS-EXAMINATION
THAT SEDATION OF A KIND WAS ADMINISTERED TO THE PATIENT. 

"MR. HEALY:  SOME KIND. 

"THE COURT:  AND THEREFORE HE IS GOING TO CONTEND AND HE DOES NOW
THAT THE CONFESSION HASN'T THE WEIGHT THE LAW REQUIRES.  IS THAT YOUR
PURPOSE? 

"MR. HEALY:  THAT'S CORRECT.  THERE ARE TWO, ONE STATEMENT AND
ANOTHER STATEMENT.  ONE STATEMENT TO THE POLICE AND ONE STATEMENT TO
THE DISTRICT ATTORNEY. 

"THE COURT:  WELL, THE ONE TO THE POLICE WAS WHAT HOUR, I WOULD LIKE
TO KNOW, AND THE ONE TO THE DISTRICT ATTORNEY WAS WHAT HOUR? 

"MR. HEALY:  THE ONE TO THE POLICE. 

"MR. SCHOR:  TO THE POLICE, TO DETECTIVE KAILE, AT TWO O'CLOCK. 

"THE COURT:  GET THE STATEMENT. 

"MR. HEALY:  THE STATEMENT THAT I RAISED THE POINT ABOUT.  THIS IS
THE STATEMENT TAKEN BY THE DISTRICT ATTORNEY, BY MR. POSTAL. 

"THE COURT:  YES. 

"MR. HEALY:  MR. LENTINI BEING THE HEARING REPORTER.  THAT WAS TAKEN
AT 3:55. 

"THE COURT: THAT'S THE TIME THAT YOU SAY HE WAS IN NO MENTAL
CONDITION TO MAKE THE STATEMENT? 

"MR. HEALY:  THAT'S CORRECT. 

"THE COURT:  IS THAT CORRECT? 

"MR. HEALY:  THAT'S CORRECT." 

FN2  "NO CONFESSION OR ADMISSION OF AN ACCUSED IS ADMISSIBLE IN
EVIDENCE UNLESS MADE FREELY AND VOLUNTARILY AND NOT UNDER THE INFLUENCE
OF PROMISES OR THREATS.  THE FACT THAT A CONFESSION WAS PROCURED BY THE
EMPLOYMENT OF SOME ARTIFICE OR DECEPTION DOES NOT EXCLUDE THE
CONFESSION IF IT WAS NOT CALCULATED, THAT IS TO SAY, IF THE ARTIFICE OR
DECEPTION WAS NOT CALCULATED TO PROCURE AN UNTRUE STATEMENT.  THE
MOTIVE OF A PERSON IN CONFESSION IS OF NO IMPORTANCE PROVIDED THE
PRATICULAR CONFESSION DOES NOT RESULT FROM THREATS, FEAR OR PROMISES
MADE BY PERSONS IN ACTUAL OR SEEMING AUTHORITY.  THE OBJECT OF EVIDENCE
IS TO GET AT THE TRUTH, AND A TRICK OR DEVICE WHICH HAS NO TENDENCY TO
PRODUCE A CONFESSION EXCEPT ONE IN ACCORDANCE WITH THE TRUTH DOES NOT
RENDER THE CONFESSION INADMISSIBLE  ...  .  THE RULES WHICH SURROUND
THE USE OF A CONFESSION ARE DESIGNED AND PUT INTO OPERATION BECAUSE OF
THE DESIRE EXPRESSED IN THE LAW THAT THE CONFESSION, IF USED, BE
PROBABLY A TRUE CONFESSION."  AT 542. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE STEWART
JOIN, DISSENTING. 

EVEN UNDER THE BROADEST VIEW OF THE RESTRICTIVE EFFECT OF THE
FOURTEENTH AMENDMENT, I WOULD NOT HAVE THOUGHT IT OPEN TO DOUBT THAT
THE STATES WERE FREETO ALLOCATE THE TRIAL OF ISSUES, WHETHER IN
CRIMINAL OR CIVIL CASES, BETWEEN JUDGE AND JURY AS THEY DEEMED BEST. 
THE COURT NOW HOLDS, HOWEVER, THAT NEW YORK'S LONG-STANDING PRACTICE OF
LEAVING TO THE JURY THE RESOLUTION OF REASONABLY DISPUTED FACTUAL
ISSUES SURROUNDING A CRIMINAL DEFENDANT'S ALLEGATION THAT HIS
CONFESSION WAS COERCED VIOLATES DUE PROCESS.  IT IS HELD THAT THE
CONSTITUTION PERMITS SUBMISSION OF THE QUESTION OF COERCION TO THE
TRIAL JURY ONLY IF PRECEDED BY A DETERMINATION OF "VOLUNTARINESS" BY
THE TRIAL JUDGE - OR BY ANOTHER JUDGE OR ANOTHER JURY NOT CONCERNED
WITH THE ULTIMATE ISSUE OF GUILT OR INNOCENCE.  (FN1) 

THE COURT DOES MAKE ONE BOW TO FEDERALISM IN ITS OPINION:  NEW YORK
NEED NOT RETRY JACKSON IF IT, RATHER THAN THE FEDERAL HABEAS CORPUS
COURT, NOW FINDS, IN ACCORDANCE WITH THE NEW GROUND RULES, THE
CONFESSION TO HAVE BEEN VOLUNTARY.  I DOUBT WHETHER NEW YORK, WHICH IN
JACKSON'S ORIGINAL TRIAL FAITHFULLY FOLLOWED THE TEACHINGS OF THIS
COURT WHICH WERE THEN APPLICABLE, WILL FIND MUCH COMFORT IN THIS
GESTURE. 

TODAY'S HOLDING IS THE MORE SURPRISING BECAUSE AS RECENTLY AS 1953
THE COURT HELD PRECISELY THE OPPOSITE IN STEIN V. NEW YORK, 346 U.S.
156, AND IN 1958 AND AGAIN IN 1959 IMPLICITLY ACCEPTED THE
CONSTITUTIONALITY OF THE NEW YORK RULE, PAYNE V. ARKANSAS, 356 U.S.
560, 568, NOTE 15; SPANO V. NEW YORK, 360 U.S. 315, 324.  (FN2) 

I RESPECTFULLY DISSENT. 

                                        I. 

THE NARROW ISSUE OF THIS CASE SHOULD NOT BE SWEPT UP AND CARRIED
ALONG TO A CONCLUSION IN THE WAKE OF BROADER CONSTITUTIONAL DOCTRINES
THAT ARE NOT PRESENTLY AT STAKE.  NEW YORK AND THE STATES WHICH FOLLOW
A LIKE PROCEDURE DO NOT CONTEST OR TACITLY DISREGARD EITHER OF THE TWO
"AXIOMS" WITH WHICH THE COURT COMMENCES ITS ARGUMENT, ANTE, PP. 376
377.  IT IS NOT OPEN TO DISPUTE, AND IT IS NOT DISPUTED HERE, THAT A
COERCED CONFESSION MAY NOT BE ANY PART OF THE BASIS OF A CONVICTION. 
NOR IS THERE QUESTION THAT A CRIMINAL DEFENDANT IS ENTITLED TO A "FAIR
HEARING AND A RELIABLE DETERMINATION" OF HIS CLAIM THAT HIS CONFESSION
WAS COERCED.  ID., AT 377.  THE TRUE ISSUE IS SIMPLY WHETHER NEW YORK'S
PROCEDURE FOR IMPLEMENTING THOSE TWO UNDOUBTED AXIOMS, WITHIN THE
FRAMEWORK OF ITS OWN TRIAL PRACTICE, FALLS BELOW THE STANDARDS OF FAIR
PLAY WHICH THE FEDERAL CONSTITUTION DEMANDS OF THE STATES. 

NEW YORK'S METHOD OF TESTING A CLAIM OF COERCION IS DESCRIBED IN THE
COURT'S OPINION, ANTE, AT PP. 377-378.  IT REQUIRES THE TRIAL JUDGE "TO
REJECT A CONFESSION IF A VERDICT THAT IT WAS FREELY MADE WOULD BE
AGAINST THE WEIGHT OF THE EVIDENCE."  PEOPLE V. LEYRA, 302 N.Y. 353,
362, 98 N.E.2D 553, 558.  THE HEART OF THE PROCEDURE, HOWEVER, IS
RELIANCE UPON THE JURY TO RESOLVE DISPUTED QUESTIONS OF FACT CONCERNING
THE CIRCUMSTANCES IN WHICH THE CONFESSION WAS MADE.  WHERE THERE ARE
FACTS "PERMITTING DIFFERENT CONCLUSIONS IT IS LEFT FOR THE JURY, UNDER
A PROPER SUBMISSION, TO SAY WHETHER OR NOT THERE WAS COERCION ...  ." 
ID., AT 364, 98 N.E.2D, AT 559. 

THIS CHOICE OF A JURY RATHER THAN A COURT DETERMINATION OF THE ISSUE
OF COERCION HAS ITS ROOT IN A GENERAL PREFERENCE FOR SUBMISSION TO A
JURY OF DISPUTED ISSUES OF FACT, A PREFERENCE WHICH HAS FOUND
EXPRESSION IN A STATE LEGISLATIVE DETERMINATION, SEE NEW YORK CODE OF
CRIMINAL PROCEDURE, SEC. 419, (FN3) AND IN THE PRACTICE IN THAT STATE,
"FOLLOWED FROM AN EARLY DAY IN A LONG LINE OF CASES."  PEOPLE V. DORAN,
246 N.Y. 409, 416, 159 N.E. 379, 381, SEE CASES CITED THEREIN AT 416
417, 159 N.E., AT 381-382.  THUS BY STATUTORY ENACTMENT AS WELL AS BY
UNDEVIATING JUDICIAL APPROBATION, NEW YORK HAS EVINCED A DELIBERATE
PROCEDURAL POLICY.  ONE MAY WONDER HOW THIS COURT CAN STRIKE DOWN SUCH
A DEEP-SEATED STATE POLICY WITHOUT GIVING A MOMENT OF ATTENTION TO ITS
ORIGINS OR JUSTIFICATION. 

AT THE CORE OF THIS DECISION IS THE COURT'S UNWILLINGNESS TO ENTRUST
TO A JURY THE "EXCEEDINGLY SENSITIVE TASK," ANTE, P. 390, OF
DETERMINING THE VOLUNTARINESS OF A CONFESSION.  IN PARTICULAR, THE
COURT HYPOTHESIZES A VARIETY OF WAYS IN WHICH THE JURY, WITTINGLY OR
NOT, "MAY" HAVE DISREGARDED ITS INSTRUCTIONS, AND COMES UP WITH TWO
POSSIBILITIES:  (1) THAT THE JURY WILL BASE A DETERMINATION THAT A
CONFESSION WAS VOLUNTARY ON BELIEF THAT IT IS TRUE; (2) THAT, DESPITE
ITS BELIEF THAT A CONFESSION WAS INVOLUNTARY, THE JURY WILL RELY ON THE
CONFESSION AS A BASIS FOR CONCLUDING THAT THE DEFENDANT IS GUILTY. 
THESE ARE, OF COURSE, POSSIBILITIES THAT THE NEW YORK PRACTICE, IN
EFFECT THE JURY SYSTEM, WILL NOT WORK AS INTENDED, NOT POSSIBILITIES
THAT, WORKING AS IT SHOULD, THE SYSTEM WILL NEVERTHELESS PRODUCE THE
WRONG RESULTS. 

THE COURT'S DISTRUST OF THE JURY SYSTEM IN THIS AREA OF CRIMINAL LAW
STANDS IN CURIOUS CONTRAST TO THE MANY PAGES IN ITS REPORTS IN WHICH
THE RIGHT TO TRIAL BY JURY HAS BEEN EXTOLLED IN EVERY CONTEXT, AND
AFFORDS A QUEER BASIS INDEED FOR A NEW DEPARTURE IN FEDERAL REGULATION
OF STATE CRIMINAL PROCEEDINGS.  THE COURT HAS REPEATEDLY REJECTED
"SPECULATION THAT THE JURORS DISREGARDED CLEAR INSTRUCTIONS OF THE
COURT IN ARRIVING AT THEIR VERDICT," OPPER V. UNITED STATES, 348 U.S.
84, 95, (FN4) AS A GROUND FOR REVERSING A CONVICTION OR, A FORTIORI, AS
THE REASON FOR ADOPTING GENERALLY A PARTICULAR TRIAL PRACTICE.  "OUR
THEORY OF TRIAL RELIES UPON THE ABILITY OF A JURY TO FOLLOW
INSTRUCTIONS."  IBID.  TWO OF THE COURT'S PAST CASES, ESPECIALLY, SHOW
HOW FOREIGN THE PREMISES OF TODAY'S DECISION ARE TO PRINCIPLES WHICH
HAVE HITHERTO BEEN ACCEPTED AS A MATTER OF COURSE. 

IN LELAND V. OREGON, 343 U.S. 790, THE APPELLANT WAS CHARGED WITH
MURDER IN THE FIRST DEGREE.  HIS DEFENSE WAS INSANITY. 

"IN CONFORMITY WITH THE APPLICABLE STATE LAW, THE TRIAL JUDGE
INSTRUCTED THE JURY, THAT ALTHOUGH APPELLANT WAS CHARGED WITH MURDER IN
THE FIRST DEGREE, THEY MIGHT DETERMINE THAT HE HAD COMMITTED A LESSER
CRIME INCLUDED IN THAT CHARGED.  THEY WERE FURTHER INSTRUCTED THAT HIS
PLEA OF NOT GUILTY PUT IN ISSUE EVERY MATERIAL AND NECESSARY ELEMENT OF
THE LESSER DEGREES OF HOMICIDE, AS WELL AS OF THE OFFENSE CHARGED IN
THE INDICTMENT.  THE JURY COULD HAVE RETURNED ANY OF FIVE VERDICTS:
(1) GUILTY OF MURDER IN THE FIRST DEGREE, IF THEY FOUND BEYOND A
REASONABLE DOUBT THAT APPELLANT DID THE KILLING PURPOSELY AND WITH
DELIBERATE AND PREMEDITATED MALICE; (2) GUILTY OF MURDER IN THE SECOND
DEGREE, IF THEY FOUND BEYOND A REASONABLE DOUBT THAT APPELLANT DID THE
KILLING PURPOSELY AND MALICIOUSLY, BUT WITHOUT DELIBERATION AND
PREMEDITATION; (3) GUILTY OF MANSLAUGHTER, IF THEY FOUND BEYOND A
REASONABLE DOUBT THAT APPELLANT DID THE KILLING WITHOUT MALICE OR
DELIBERATION, BUT UPON A SUDDEN HEAT OF PASSION CAUSED BY A PROVOCATION
APPARENTLY SUFFICIENT TO MAKE THE PASSION IRRESISTIBLE; (4) NOT GUILTY,
IF, AFTER A CAREFUL CONSIDERATION OF ALL THE EVIDENCE, THERE REMAINED
IN THEIR MINDS A REASONABLE DOUBT AS TO THE EXISTENCE OF ANY OF THE
NECESSARY ELEMENTS OF EACH DEGREE OF HOMICIDE; AND (5) NOT GUILTY BY
REASON OF INSANITY, IF THEY FOUND BEYOND A REASONABLE DOUBT THAT
APPELLANT WAS INSANE AT THE TIME OF THE OFFENSE CHARGED."  ID., AT 793
794 (FOOTNOTES OMITTED). 

THESE COMPLEX INSTRUCTIONS, (FN5) WHICH REQUIRED THE JURORS TO KEEP
IN MIND AND APPLY THE MOST SUBTLE DISTINCTIONS, WERE COMPLICATED STILL
FURTHER BY THE LAW OF OREGON REGARDING THE BURDEN OF PROOF ON AN
INSANITY DEFENSE: 

"  ...  THE INSTRUCTIONS, AND THE CHARGE AS A WHOLE, MAKE IT CLEAR
THAT THE BURDEN OF PROOF OF GUILT, AND OF ALL THE NECESSARY ELEMENTS OF
GUILT, WAS PLACED SQUARELY UPON THE STATE.  AS THE JURY WAS TOLD, THIS
BURDEN DID NOT SHIFT, BUT RESTED UPON THE STATE THROUGHOUT THE TRIAL,
JUST AS, ACCORDING TO THE INSTRUCTIONS, APPELLANT WAS PRESUMED TO BE
INNOCENT UNTIL THE JURY WAS CONVINCED BEYOND A REASONABLE DOUBT THAT HE
WAS GUILTY.  THE JURORS WERE TO CONSIDER SEPARATELY THE ISSUE OF LEGAL
SANITY PER SE - AN ISSUE SET APART FROM THE CRIME CHARGED, TO BE
INTRODUCED BY A SPECIAL PLEA AND DECIDED BY A SPECIAL VERDICT.  ON THIS
ISSUE APPELLANT HAD THE BURDEN OF PROOF UNDER THE STATUTE IN QUESTION
HERE."  ID., AT 795-796 (FOOTNOTES OMITTED). 

THE JURY FOUND THE APPELLANT GUILTY AND SENTENCED HIM TO DEATH. 

ON APPEAL, THE APPELLANT ARGUED THAT "THE INSTRUCTIONS MAY HAVE
CONFUSED THE JURY AS TO THE DISTINCTION BETWEEN THE STATE'S BURDEN OF
PROVING PREMEDITATION AND THE OTHER ELEMENTS OF THE CHARGE AND
APPELLANT'S BURDEN OF PROVING INSANITY."  ID., AT 800.  THIS COURT
RESPONDED: 

"WE THINK THE CHARGE TO THE JURY WAS AS CLEAR AS INSTRUCTIONS TO
JURIES ORDINARILY ARE OR REASONABLY CAN BE, AND, WITH RESPECT TO THE
STATE'S BURDEN OF PROOF UPON ALL THE ELEMENTS OF THE CRIME, THE CHARGE
WAS PARTICULARLY EMPHATIC.  JURIES HAVE FOR CENTURIES MADE THE BASIC
DECISIONS BETWEEN GUILT AND INNOCENCE AND BETWEEN CRIMINAL
RESPONSIBILITY AND LEGAL INSANITY UPON THE BASIS OF THE FACTS, AS
REVEALED BY ALL THE EVIDENCE, AND THE LAW, AS EXPLAINED BY INSTRUCTIONS
DETAILING THE LEGAL DISTINCTIONS, THE PLACEMENT AND WEIGHT OF THE
BURDEN OF PROOF, THE EFFECT OF PRESUMPTIONS, THE MEANING OF INTENT,
ETC.  WE THINK THAT TO CONDEMN THE OPERATION OF THIS SYSTEM HERE WOULD
BE TO CONDEMN THE SYSTEM GENERALLY.  WE ARE NOT PREPARED TO DO SO." 
IBID. 

EVERY FACTOR ON WHICH THE COURT RELIES IN THE PRESENT CASE TO SHOW
THE INADEQUACY OF A JURY VERDICT ON THE COERCED CONFESSION ISSUE AND
SOME FACTORS WHICH THE COURT DOES NOT MENTION, WERE PRESENT IN LELAND:
THE FACTUAL ISSUE WAS EXTREMELY COMPLEX, AND REQUIRED THE JURY TO MAKE
A HAZARDOUS INFERENCE CONCERNING THE DEFENDANT'S MENTAL STATE, WHICH
INFERENCE IN TURN DEPENDED ON EXCEEDINGLY SUBTLE DISTINCTIONS; THE
INSTRUCTIONS TO THE JURY WERE THEMSELVES COMPLEX, THEIR COMPLEXITY
BEING NECESSITATED BY THE COMPLEXITY OF THE ISSUES; THE CRIME CHARGED
WAS PARTICULARLY HEINOUS AND LIKELY TO HAVE AROUSED THE COMMUNITY'S
AND, IN PARTICULAR, THE JURORS' ANGER; THE DEFENDANT HAD BEYOND
QUESTION COMMITTED THE ACT CHARGED; THE POSSIBLE, AND AS IT TURNED OUT
ACTUAL, PENALTY WAS DEATH.    I AM AT A LOSS TO UNDERSTAND HOW THE
COURT, WHICH REFUSED TO RECOGNIZE THE POSSIBILITY OF JURY INADEQUACY IN
LELAND, CAN ACCEPT THAT POSSIBILITY HERE NOT ONLY AS A BASIS FOR
REVERSING THE JUDGMENT IN THIS CASE - INVOLVING FAR SIMPLER QUESTIONS
OF FACT AND EASILY UNDERSTOOD INSTRUCTIONS - BUT AS THE PREMISE FOR
INVALIDATING A STATE RULE OF CRIMINAL PROCEDURE - OF GENERAL
APPLICATION RESTING ON AN ENTIRELY RATIONAL STATE POLICY OF LONG
STANDING.  WHY IS IT NOT TRUE HERE, AS IT WAS IN LELAND, THAT "TO
CONDEMN THE OPERATION OF  ...  THE JURY SYSTEM HERE WOULD BE TO CONDEMN
THE SYSTEM GENERALLY"?  IBID. 

THE SECOND CASE IS DELLI PAOLI V. UNITED STATES, 352 U.S. 232.  THERE
THE PETITIONER WAS TRIED JOINTLY WITH FOUR CO-DEFENDANTS BY FEDERAL
AUTHORITIES FOR A FEDERAL CRIME.  THE GOVERNMENT INTRODUCED IN EVIDENCE
THE CONFESSION OF ANOTHER DEFENDANT, WHICH WAS MADE AFTER THE
CONSPIRACY HAD ENDED AND COULD NOT, THEREFORE, BE USED AGAINST THE
PETITIONER.  THE JURY WAS WARNED WHEN THE CONFESSION WAS ADMITTED AND
AGAIN IN THE CHARGE THAT IT WAS TO BE CONSIDERED ONLY AGAINST THE
CONFESSOR AND NOT AGAINST HIS CODEFENDANTS.  IN FACT, HOWEVER, BY
REASON OF REPEATED EXPRESS REFERENCES TO THE PETITIONER AND EXTENSIVE
CORROBORATIVE DETAIL, THE CONFESSION IMPLICATED THE PETITIONER AS
COMPLETELY AS IT DID THE CONFESSOR.  REJECTING THE PETITIONER'S
CONTENTION THAT ADMISSION OF THE CONFESSION WAS REVERSIBLE ERROR, THE
COURT SAID: 

"IT IS A BASIC PREMISE OF OUR JURY SYSTEM THAT THE COURT STATES THE
LAW TO THE JURY AND THAT THE JURY APPLIES THAT LAW TO THE FACTS AS THE
JURY FINDS THEM.  UNLESS WE PROCEED ON THE BASIS THAT THE JURY WILL
FOLLOW THE COURT'S INSTRUCTIONS WHERE THOSE INSTRUCTIONS ARE CLEAR AND
THE CIRCUMSTANCES ARE SUCH THAT THE JURY CAN REASONABLY BE EXPECTED TO
FOLLOW THEM, THE JURY SYSTEM MAKES LITTLE SENSE.  BASED ON FAITH THAT
THE JURY WILL ENDEAVOR TO FOLLOW THE COURT'S INSTRUCTIONS, OUR SYSTEM
OF JURY TRIAL HAS PRODUCED ONE OF THE MOST VALUABLE AND PRACTICAL
MECHANISMS IN HUMAN EXPERIENCE FOR DISPENSING SUBSTANTIAL JUSTICE." 
ID., AT 242. 

IN DELLI PAOLI, THE JURY WAS INSTRUCTED THAT IT MIGHT GIVE SUCH
CREDENCE AS IT CHOSE TO A CLEARLY VOLUNTARY AND APPARENTLY RELIABLE
CONFESSION WHEN IT CONSIDERED ITS VERDICT AS TO ONE DEFENDANT, BUT THAT
IT MUST ENTIRELY DISREGARD THE SAME CONFESSION WHEN IT CONSIDERED ITS
VERDICT AS TO ANY OTHER DEFENDANT; THIS DESPITE THE FACT THAT THE CRIME
CHARGED WAS A CONSPIRACY AND THE CONFESSION NAMED OTHER DEFENDANTS AND
DESCRIBED THEIR ACTS IN DETAIL.  IN THE PRESENT CASE, THE COURT
BELIEVES THAT A JURY "MAY FIND IT DIFFICULT TO UNDERSTAND THE POLICY
FORBIDDING RELIANCE UPON A COERCED, BUT TRUE, CONFESSION," ANTE, P.
382.  HOW CAN IT WELL BE SAID THAT THIS POLICY IS MORE DIFFICULT FOR A
JURY TO UNDERSTAND THAN THE POLICY BEHIND THE RULE APPLIED IN DELLI
PAOLI?  SO TOO, THE COURT FINDS DANGER IN THIS CASE "THAT MATTERS
PERTAINING TO THE DEFENDANT'S GUILT WILL INFECT THE JURY'S FINDINGS OF
FACT BEARING UPON VOLUNTARINESS."  ID., AT 383.  BUT WAS THERE NOT
GREATER DANGER IN DELLI PAOLI THAT ONE DEFENDANT'S CONFESSION OF HIS
AND HIS CODEFENDANTS' GUILT WOULD INFECT THE JURY'S DELIBERATIONS
BEARING ON THE GUILT OF THE CODEFENDANTS?  AND WAS IT NOT MORE
"DIFFICULT, IF NOT IMPOSSIBLE," ANTE, P. 389, FOR THE JURORS TO LODGE
THE EVIDENCE IN THE RIGHT MENTAL CONPARTMENTS IN A TRIAL OF FIVE
DEFENDANTS THAN HERE, IN A TRIAL OF ONE? 

THE DANGER THAT A JURY WILL BE UNABLE OR UNWILLING TO FOLLOW
INSTRUCTIONS IS NOT, OF COURSE, CONFINED TO JOINT TRIALS OR TRIALS
INVOLVING SPECIAL ISSUES SUCH AS INSANITY OR THE ADMISSIBILITY OF A
CONFESSION.  IT ARISES WHENEVER EVIDENCE ADMISSIBLE FOR ONE PURPOSE IS
INADMISSIBLE FOR ANOTHER, AND THE JURY IS ADMONISHED THAT IT MAY
CONSIDER THE EVIDENCE ONLY WITH RESPECT TO THE FORMER.  E.G., MOFFETT
V. ARABIAN AMERICAN OIL CO., INC., 184 F.2D 859.  MORE BROADLY, IT
ARISES EVERY TIME A COUNSEL OR THE TRIAL JUDGE MISSPEAKS HIMSELF AT
TRIAL AND THE JUDGE INSTRUCTS THE JURY TO DISREGARD WHAT IT HAS HEARD. 
E.G., CARR V. STANDARD OIL CO., 181 F.2D 15.  IN SHORT, THE FEARS WHICH
GUIDE THE COURT'S OPINION GROW OUT OF THE VERY NATURE OF THE JURY
SYSTEM. 

JURY WAYWARDNESS, IF IT OCCURS, DOES NOT ORDINARILY TRENCH ON RIGHTS
SO FUNDAMENTAL TO CRIMINAL JUSTICE AS THE RIGHT NOT TO BE CONVICTED BY
THE USE OF A COERCED CONFESSION.  THE PRESENCE OF A CONSTITUTIONAL
CLAIM IN THIS CASE, HOWEVER, DOES NOT PROVIDE A VALID BASIS FOR
DISTINGUISHING IT FROM THE OTHER SITUATIONS DISCUSSED ABOVE.  THERE IS
NOT THE LEAST SUGGESTION IN THE COURT'S OPINION THAT THE NATURE OF THE
CLAIM HAS ANYTHING TO DO WITH THE TRUSTWORTHINESS OF THE EVIDENCE
INVOLVED; NOT COULD THERE BE, SINCE THE COURT'S RULE IS ENTIRELY
UNCONNECTED WITH THE RELIABILITY OF A CONFESSION.  NOR, AS THE DELLI
PAOLI AND LELAND CASES AMPLY ATTEST, ARE FACTUAL ISSUES UNDERLYING
CONSTITUTIONAL CLAIMS NECESSARILY MORE BEYOND THE JURY'S COMPETENCE
THAN ISSUES UNDERLYING OTHER CLAIMS WHICH, ALBEIT NONCONSTITUTIONAL,
ARE NEVERTHELESS OF EQUALLY VITAL CONCERN TO THE DEFENDANT INVOLVED. 
FINALLY, DELLI PAOLI WAS TRIED IN THE FEDERAL COURTS, WHERE THIS COURT
HAS GENERAL "SUPERVISORY AUTHORITY" OVER THE ADMINISTRATION OF CRIMINAL
JUSTICE, MCNABB V. UNITED STATES, 318 U.S. 332, 340-341, OBVIATING ANY
SUGGESTION THAT THIS COURT HAS POWER TO ACT HERE WHICH IT LACKS IN
OTHER SITUATIONS. 

TO SHOW THAT THIS COURT ACTS INCONSISTENTLY WITH ITS OWN PRIOR
DECISIONS DOES NOT, OF COURSE, DEMONSTRATE THAT IT ACTS INCORRECTLY. 
IN THIS INSTANCE, HOWEVER, THE COURT'S CONSTANT REFUSAL IN THE PAST TO
ACCEPT AS A RATIONALE FOR DECISION THE DANGERS OF JURY INCOMPETENCE OR
WAYWARDNESS, BECAUSE TO DO SO WOULD BE TO "CONDEMN THE SYSTEM
GENERALLY," LELAND, SUPRA, AT 800, DOES DEMONSTRATE THE LACK OF
CONSTITUTIONAL FOUNDATION FOR ITS DECISION.  IT CAN HARDLY BE SUGGESTED
THAT A RATIONALE WHICH THE COURT HAS SO CONSISTENTLY AND SO RECENTLY
REJECTED, EVEN AS THE BASIS FOR AN EXERCISE OF ITS SUPERVISORY POWERS
OVER FEDERAL COURTS, AND WHICH EVEN NOW IT DOES NOT ATTACK SO MUCH AS
DISREGARD, FURNISHES THE CLEAR CONSTITUTIONAL WARRANT WHICH ALONE
JUSTIFIES INTERFERENCE WITH STATE CRIMINAL PROCEDURES. 

                                       II. 

THE HOLLOWNESS OF THE COURT'S HOLDING IS FURTHER EVIDENCED BY ITS
ACCEPTANCE OF THE SO-CALLED "MASSACHUSETTS RULE," SEE ANTE, PP. 378-379
AND NOTE 8, UNDER WHICH THE TRIAL JUDGE DECIDES THE QUESTION OF
VOLUNTARINESS AND, IF HE DECIDES AGAINST THE DEFENDANT, THEN SUBMITS
THE QUESTION TO THE JURY FOR ITS INDEPENDENT DECISION.  (FN6)  WHATEVER
THEIR THEORETICAL VARIANCE, IN PRACTICE THE NEW YORK AND MASSACHUSETTS
RULES ARE LIKELY TO SHOW A DISTINCTION WITHOUT A DIFFERENCE.  INDEED,
SOME COMMENTATORS, AND SOMETIMES THE COURTS THEMSELVES, HAVE BEEN
UNABLE TO SEE TWO DISTINCT RULES.  (FN7) 

THE COURT FINDS SIGNIFICANCE IN THE FACT THAT UNDER THE MASSACHUSETTS
RULE "THE JUDGE'S CONCLUSIONS ARE CLEARLY EVIDENT FROM THE RECORD," AND
"HIS FINDINGS UPON DISPUTED ISSUES OF FACT ARE EXPRESSLY STATED OR MAY
BE ASCERTAINABLE FROM THE RECORD."  ANTE, PP. 378-379.  IT IS DIFFICULT
TO SEE WHEREIN THE SIGNIFICANCE LIES.  THE "JUDGE'S CONCLUSIONS" ARE NO
MORE THAN THE ADMISSION OR EXCLUSION OF THE CONFESSION.  IF THE
CONFESSION IS ADMITTED, HIS FINDINGS OF FACT, IF THEY CAN BE
ASCERTAINED, WILL, REALISTICALLY, EITHER HAVE NO EFFECT ON REVIEW OF
THE CONVICTION FOR CONSTITUTIONAL CORRECTNESS OR WILL SERVE ONLY TO
BUTTRESS AN INDEPENDENT CONCLUSION THAT THE CONFESSION WAS NOT
COERCED.  INDEED, UNLESS THE JUDGE'S FINDINGS OF FACT ARE STATED WITH
PARTICULARITY, THE MASSACHUSETTS RULE IS INDISTINGUISHABLE FROM THE NEW
YORK RULE FROM THE STANDPOINT OF FEDERAL DIRECT OR COLLATERAL REVIEW OF
THE CONSTITUTIONAL QUESTION.  WHICHEVER PROCEDURE IS USED, THE
REVIEWING COURT IS REQUIRED TO GIVE WEIGHT TO THE STATE DETERMINATION
AND REVERSE ONLY IF THE CONFESSIONS ARE COERCED AS A MATTER OF LAW. 
SEE LISENBA V. CALIFORNIA, 314 U.S. 219, 236-238; PAYNE V. ARKANSAS,
356 U.S. 560, 561-562  (FN8)

THE HEART OF THE SUPPOSED DISTINCTION IS THE REQUIREMENT UNDER THE
MASSACHUSETTS RULE THAT THE JUDGE RESOLVE DISPUTED QUESTIONS OF FACT
AND ACTUALLY DETERMINE THE ISSUE OF COERCION; UNDER THE NEW YORK RULE,
THE JUDGE DECIDES ONLY WHETHER A JURY DETERMINATION OF VOLUNTARINESS
WOULD BE "AGAINST THE WEIGHT OF THE EVIDENCE."  SEE, SUPRA, P. 428. 
SINCE IT IS ONLY THE EXCLUSION OF A CONFESSION WHICH IS CONCLUSIVE
UNDER THE MASSACHUSETTS RULE, IT IS LIKELY THAT WHERE THERE IS DOUBT -
THE ONLY SITUATION IN WHICH THE THEORETICAL DIFFERENCE BETWEEN THE TWO
RULES WOULD COME INTO PLAY - A TRIAL JUDGE WILL RESOLVE THE DOUBT IN
FAVOR OF ADMISSIBILITY, RELYING ON THE FINAL DETERMINATION BY THE
JURY. 

THE FUNDAMENTAL RIGHTS WHICH ARE A PART OF DUE PROCESS DO NOT TURN ON
NICE THEORETICAL DISTINCTIONS SUCH AS THOSE EXISTING BETWEEN THE NEW
YORK AND MASSACHUSETTS RULES. 

                                      III. 

MY DISAGREEMENT WITH THE MAJORITY DOES NOT CONCERN THE WISDOM OF THE
NEW YORK PROCEDURE.  IT MAY BE THAT IN THE ABSTRACT THE PROBLEMS WHICH
ARE CREATED BY LEAVING TO THE JURY THE QUESTION OF COERCION SHOULD
WEIGH MORE HEAVILY THAN TRADITIONAL USE OF THE JURY SYSTEM.  BE THAT AS
IT MAY, "THE STATES ARE FREE TO ALLOCATE FUNCTIONS AS BETWEEN JUDGE AND
JURY AS THEY SEE FIT."  STEIN, SUPRA, AT 179.  I, LIKE THE COURT IN
STEIN, BELIEVE THAT THIS COURT HAS NO AUTHORITY TO "STRIKE DOWN AS
UNCONSTITUTIONAL PROCEDURES SO LONG ESTABLISHED AND WIDELY APPROVED BY
STATE JUDICIARIES, REGARDLESS OF OUR PERSONAL OPINION AS TO THEIR
WISDOM."  IBID.  THIS PRINCIPLE, ALONE HERE RELEVANT, WAS FOUNDED ON A
SOLID CONSTITUTIONAL APPROACH THE LOSS OF WHICH WILL DO SERIOUS
DISSERVICE TO THE HEALTH WORKING OF OUR FEDERAL SYSTEM IN THE CRIMINAL
FIELD. 

IT SHOULD NOT BE FORGOTTEN THAT IN THIS COUNTRY CITIZENS MUST LOOK
ALMOST EXCLUSIVELY TO THE STATES FOR PROTECTION AGAINST MOST CRIMES. 
THE STATES ARE CHARGED WITH RESPONSIBILITY FOR MARKING THE AREA OF
CRIMINAL CONDUCT, DISCOVERING AND INVESTIGATING SUCH CONDUCT WHEN IT
OCCURS, AND PREVENTING ITS RECURRENCE.  IN THIS CASE, FOR EXAMPLE, THE
CRIME CHARGED - MURDER OF A POLICEMAN WHO WAS ATTEMPTING TO APPREHEND
THE DEFENDANT, IN FLIGHT FROM AN ARMED ROBBERY - IS WHOLLY WITHIN THE
COGIZANCE OF THE STATES.  LIMITATIONS ON THE STATES' EXERCISE OF THIER
RESPONSIBILITY TO PREVENT CRIMINAL CONDUCT SHOULD BE IMPOSED ONLY WHERE
IT IS DEMONSTRABLE THAT THEIR OWN ADJUSTMENT OF THE COMPETING INTERESTS
INFRINGES RIGHTS FUNDAMENTAL TO DECENT SOCIETY.  THE NEW YORK RULE NOW
HELD UNCONSTITUTIONAL IS SURELY NOT OF THAT CHARACTER. 

IV. 

A FINAL WORD SHOULD BE SAID ABOUT THE SEPARATE QUESTION OF THE
APPLICATION OF TODAY'S NEW FEDERALLY IMPOSED RULE OF CRIMINAL PROCEDURE
TO TRIALS LONG SINCE CONCLUDED.  THE COURT APPARENTLY ASSUMES THE
ANSWER TO THIS QUESTION, FOR I FIND NOTHING IN ITS OPINION TO SUGGEST
THAT ITS HOLDING WILL NOT BE APPLIED RETROACTIVELY. 

TO SAY, AS THE COURT DOES, THAT NEW YORK WAS "NOT WITHOUT SUPPORT IN
THE DECISIONS OF THIS COURT," ANTE, P. 395, WHEN IT TRIED JACKSON
ACCORDING TO ITS EXISTING RULES DOES NOT GIVE THE STATE ITS DUE. 
THOSE RULES HAD BEEN DIRECTLY CONSIDERED AND EXPLICITLY APPROVED BY
THIS COURT IN STEIN JUST SEVEN YEARS BEFORE JACKSON WAS TRIED.  THEY
WERE IMPLICITLY REAFFIRMED BY THIS COURT IN SPANO, SUPRA, LITTLE MORE
THAN ONE YEAR BEFORE THE TRIAL.  IF THE CONCEPT OF DUE PROCESS HAS AS
LITTLE STABILITY AS THIS CASE SUGGESTS, SO THAT THE STATES CANNOT BE
SURE FROM ONE YEAR TO THE NEXT WHAT THIS COURT, IN THE NAME OF DUE
PROCESS, WILL REQUIRE OF THEM, SURELY THEY ARE ENTITLED AT LEAST TO BE
HEARD ON THE QUESTION OF RETROACTIVITY.  SEE MY DISSENTING OPINION IN
PICKELSIMER V. WAINWRIGHT, 375 U.S. 2. 

I WOULD AFFIRM.  (FN9) 

FN1  WHETHER OR NOT THE COURT WOULD PERMIT THE TRIAL JURY TO RENDER A
SPECIAL VERDICT ON THE ISSUE OF COERCION AND, HAVING FOUND THE
CONFESSION INVOLUNTARY, GO ON TO HEAR THE EVIDENCE ON AND DETERMINE THE
QUESTION OF GUILT IS UNCLEAR.  SEE ANTE, PP. 379-380 AND P. 391, N.
19. 

FN2  INDEED, IN HIS PETITION FOR CERTIORARI TO REVIEW THE JUDGMENT OF
THE NEW YORK COURT OF APPEALS, 10 N.Y.2D 780, 177 N.E.2D 59, WHICH THIS
COURT DENIED, 368 U.S. 949, THE PETITIONER DID NOT EVEN CHALLENGE THE
CONSTITUTIONALITY OF THE NEW YORK PROCEDURE. 

FN3  "ON THE TRIAL OF AN INDICTMENT FOR ANY OTHER CRIME THAN LIBEL,
QUESTIONS OF LAW ARE TO BE DECIDED BY THE COURT, SAVING THE RIGHT OF
THE DEFENDANT TO EXCEPT; QUESTIONS OF FACT BY THE JURY.  AND ALTHOUGH
THE JURY HAVE THE POWER TO FIND A GENERAL VERDICT, WHICH INCLUDES
QUESTIONS OF LAW AS WELL AS OF FACT, THEY ARE BOUND, NEVERTHELESS, TO
RECEIVE AS LAW WHAT IS LAID DOWN AS SUCH BY THE COURT." 

FN4  THE COURT DOES NOT QUESTION THE SUFFICIENCY OF THE TRIAL JUDGE'S
INSTRUCTIONS IN THIS CASE. 

FN5  THEIR FULL COMPLEXITY IS NOT REVEALED EVEN BY THE PASSAGE
QUOTED.  SINCE THE LAW PERMITTED TWO DIFFERENT VERDICTS OF GUILTY OF
MURDER IN THE FIRST DEGREE, THE DIFFERENCE BEING THE INCLUSION OR NOT
OF A RECOMMENDATION AS TO PUNISHMENT, A TOTAL OF SIX POSSIBLE VERDICTS
WAS SUBMITTED TO THE JURY FOR ITS CONSIDERATION.  LELAND V. OREGON,
SUPRA, AT 793, N. 4. 

FN6  E.G., COMMONWEALTH V. SHEPPARD, 313 MASS. 590, 604, 48 N.E.2D
630, 639-640. 

FN7  THE MAJORITY OF THIS COURT ITSELF PROCLAIMS ITS INABILITY TO
DISTINGUISH CLEARLY BETWEEN THE STATES WHICH DO AND THOSE WHICH DO NOT
FOLLOW THE RULE NOW FOUND BY IT TO BE CONSTITUTIONALLY REQUIRED.  SEE
ANTE, PP. 378-379, NOTE 9.  IN APPENDIX A TO THE COURT'S OPINION, THE
RULES IN 14 STATES ARE LISTED AS "DOUBTFUL." 

ANNOTATIONS IN 85 ALR 870 AND 170 ALR 567 RECOGNIZE ONLY TWO GENERAL
PRACTICES, DIVIDING THE STATES INTO THOSE IN WHICH "VOLUNTARINESS IS
SOLELY FOR THE COURT" (THE SO-CALLED "ORTHODOX" RULE, ANTE, P. 378) AND
THOSE IN WHICH "VOLUNTARINESS IS ULTIMATELY FOR THE JURY," WITH SOME
JURISDICTIONS LISTED AS "DOUBTFUL."  MASSACHUSETTS AND NEW YORK ARE
BOTH LISTED AS JURISDICTIONS IN WHICH THE QUESTION IS ULTIMATELY FOR
THE JURY.  SEE ALSO RITZ, TWENTY-FIVE YEARS OF STATE CRIMINAL
CONFESSION CASES IN THE U.S. SUPREME COURT, 19 WASH. & LEE L. REV. 35,
55-57 (1962).  ALTHOUGH RECOGNIZING THE DIFFERENCE BETWEEN THE TWO
RULES, PROFESSOR RITZ STATES THAT "THE DISTINCTIONS IN THE DIFFERENT
VIEWS MAY BE MORE SEMANTICAL THAN REAL."  ID., AT 57 (FOOTNOTE
OMITTED).  HE ASKS:    "IS THE TRIAL JUDGE'S FINDING UNDER THE NEW YORK
VIEW THAT A CONFESSION IS 'NOT INVOLUNTARY' SO THAT IT MAY GO TO THE
JURY VERY MUCH DIFFERENT FROM THE TRIAL JUDGE'S FINDING UNDER THE
MASSACHUSETTS VIEW THAT A CONFESSION IS 'VOLUNTARY,' WITH THE JURY
GIVEN AN OPPORTUNITY TO PASS AGAIN ON THE SAME QUESTION?"  ID., AT 57,
N. 120. 

IN MELTZER, INVOLUNTARY CONFESSIONS:  THE ALLOCATION OF
RESPONSIBILITY BETWEEN JUDGE AND JURY, 21 U. CHI.  L. REV. 317 (1954),
THE DISTINCTION BETWEEN THE RULES IS DEFENDED, BUT THE AUTHOR STATES
THAT "THE FORMAL DISTINCTION BETWEEN THE NEW YORK AND MASSACHUSETTS
PROCEDURES IS OFTEN BLURRED IN APPELLATE OPINIONS," ID., AT 323-324,
AND THAT  ...  IT IS SOMETIMES DIFFICULT TO DETERMINE WHICH OF TWO
PROCEDURES IS BEING APPROVED, OR WHETHER A DISTINCTION BETWEEN THE TWO
IS EVEN RECOGNIZED."  ID., AT 324 (FOOTNOTE OMITTED). 

FN8  IF THE COURT'S POINT IS THAT UNDER THE NEW YORK RULE THERE IS NO
WAY OF KNOWING WHETHER THE JURY HAS ADDRESSED ITSELF SPECIALLY TO THE
COERCED CONFESSION ISSUE AT ALL THE POINT SIMPLY RAISES AGAIN THE FEAR
OF JURY ERROR DISCUSSED IN THE FIRST SECTION OF THIS OPINION. 

FN9  LIKE THE COURT, ANTE, P. 392, N. 20, I REJECT PETITIONER'S
CONTENTION THAT LOOKING ONLY TO THE UNDISPUTED EVIDENCE HIS CONFESSION
MUST BE DEEMED INVOLUNTARY AS A MATTER OF LAW. 
..END :





UNITED STATES V. CONTINENTAL CAN CO. 378 U.S. 441 


NO. 367.  ARGUED APRIL 28, 1964.  - DECIDED JUNE 22, 1964.  - 217 F.
SUPP. 761, REVERSED AND REMANDED. 


THE GOVERNMENT SEEKS AN ORDER REQUIRING THE DIVESTITURE, AS A
VIOLATION OF SEC. 7 OF THE CLAYTON ACT, BY CONTINENTAL CAN COMPANY
(CCC), THE SECOND LARGEST PRODUCER OF METAL CONTAINERS, OF THE ASSETS
ACQUIRED IN 1956 OF HAZEL-ATLAS GLASS COMPANY (HAG), THE THIRD LARGEST
PRODUCER OF GLASS CONTAINERS.  CCC, WHICH HAD A HISTORY OF ACQUIRING
OTHER COMPANIES, PRODUCED NO GLASS CONTAINERS IN 1955, BUT SHIPPED 33%
OF ALL METAL CONTAINERS SOLD IN THIS COUNTRY.  HAG, WHICH PRODUCED NO
METAL CONTAINERS, SHIPPED 9.6% OF THE GLASS CONTAINERS THAT YEAR.  THE
GEOGRAPHIC MARKET WAS HELD BY THE DISTRICT COURT TO BE THE ENTIRE
COUNTRY.  THE GOVERNMENT HAD URGED TEN PRODUCT MARKETS, INCLUDING THE
CAN INDUSTRY, THE GLASS CONTAINER INDUSTRY, AND VARIOUS LINES OF
COMMERCE DEFINED BY THE END USE OF THE CONTAINERS.  THE DISTRICT COURT
FOUND THREE PRODUCT MARKETS, METAL CONTAINERS, GLASS CONTAINERS, AND
METAL AND GLASS BEER CONTAINERS.  ALTHOUGH FINDING INTERINDUSTRY
COMPETITION BETWEEN METAL, GLASS AND PLASTIC CONTAINERS, THE DISTRICT
COURT HELD THEM TO BE SEPARATE LINES OF COMMERCE.  HOLDING THAT THE
GOVERNMENT HAD FAILED TO PROVE REASONABLE PROBABILITY OF LESSENING
COMPETITION IN ANY LINE OF COMMERCE, THE DISTRICT COURT DISMISSED THE
COMPLAINT AT THE END OF THE GOVERNMENT'S CASE.  HELD: 

1.  INTERINDUSTRY COMPETITION BETWEEN GLASS AND METAL CONTAINERS MAY
PROVIDE THE BASIS FOR DEFINING A RELEVANT PRODUCT MARKET.  PP. 447
458. 

(A)  THE COMPETITION PROTECTED BY SEC. 7 IS NOT LIMITED TO THAT
BETWEEN IDENTICAL PRODUCTS.  P. 452. 

(B)  CROSS-ELASTICITY OF DEMAND AND INTERCHANGEABILITY OF USE ARE
USED TO RECOGNIZE COMPETITION WHERE IT EXISTS, NOT TO OBSCURE IT.
BROWN SHOE CO. V. UNITED STATES, 370 U.S. 326.  P. 453. 

(C)  THERE HAS BEEN INSISTENT, CONTINUOUS, EFFECTIVE AND SUBSTANTIAL
END-USE COMPETITION BETWEEN METAL AND GLASS CONTAINERS; AND THOUGH
INTERCHANGEABILITY OF USE MAY NOT BE SO COMPLETE AND CROSS-ELASTICITY
OF DEMAND NOT SO IMMEDIATE AS IN THE CASE OF SOME INTRA-INDUSTRY
MERGERS, THE LONG-RUN RESULTS BRING THE COMPETITION BETWEEN THEM WITHIN
SEC. 7.  PP.  453-455. 

(D)  THERE IS A LARGE AREA OF EFFECTIVE COMPETITION BETWEEN METAL AND
GLASS CONTAINERS, WHICH IMPLIES ONE OR MORE OTHER LINES OF COMMERCE
ENCOMPASSING BOTH INDUSTRIES.  PP.  456-457. 

(E)  IF AN AREA OF EFFECTIVE COMPETITION CUTS ACROSS INDUSTRY LINES,
THE RELEVANT LINE OF COMMERCE MUST DO LIKEWISE.  P. 457. 

(F)  BASED ON THE PRESENT RECORD, THE INTERINDUSTRY COMPETITION
BETWEEN GLASS AND METAL CONTAINERS WARRANTS TREATING THE COMBINED GLASS
AND METAL CONTAINER INDUSTRIES AND ALL END USES FOR WHICH THEY COMPETE
AS A RELEVANT PRODUCT MARKET.  P. 457. 

(G)  COMPLETE INTERINDUSTRY COMPETITIVE OVERLAP IS NOT REQUIRED
BEFORE SEC. 7 IS APPLICABLE AND SOME NONCOMPETITIVE SEGMENTS IN A
PROPOSED MARKET AREA DO NOT PREVENT ITS IDENTIFICATION AS A LINE OF
COMMERCE.  P. 457. 

(H) THAT THERE MAY BE A BROADER PRODUCT MARKET, INCLUDING OTHER
COMPETING CONTAINERS, DOES NOT PREVENT THE EXISTENCE OF A SUBMARKET OF
CANS AND GLASS CONTAINERS.  PP. 457-458. 

2.  ON THE BASIS OF THE EVIDENCE SO FAR PRESENTED THE MERGER BETWEEN
CCC AND HAG VIOLATES SEC. 7 BECAUSE IT WILL HAVE A PROBABLE
ANTICOMPETITIVE EFFECT WITHIN THE RELEVANT LINE OF COMMERCE.  PP. 458
466. 

(A)  IN DETERMINING WHETHER A MERGER WILL HAVE PROBABLE
ANTICOMPETITIVE EFFECT, IT MUST BE LOOKED AT FUNCTIONALLY IN THE
CONTEXT OF THE MARKET INVOLVED, ITS STRUCTURE, HISTORY AND FUTURE.  P.
458. 

(B)  WHERE A MERGER IS OF SUCH MAGNITUDE AS TO BE INHERENTLY SUSPECT,
DETAILED MARKET ANALYSIS AND PROOF OF LIKELY LESSENING OF COMPETITION
ARE NOT REQUIRED IN VIEW OF SEC.  7'S PURPOSE OF PREVENTING UNDUE
CONCENTRATION.  P. 458. 

(C)  THE PRODUCT MARKET OF THE COMBINED METAL AND GLASS CONTAINER
INDUSTRIES WAS DOMINATED BY SIX COMPANIES, OF WHICH CCC RANKED SECOND
AND HAG SIXTH.  P. 461. 

(D)  THE 25% OF THE PRODUCT MARKET HELD BY THE MERGED FIRMS
APPROACHES THE PERCENTAGE FOUND PRESUMPTIVELY BAD IN UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321, AND NEARLY THE SAME AS THAT
INVOLVED IN UNITED STATES V. ALUMINUM CO. OF AMERICA, 377 U.S. 271, AND
THE ADDITION TO CCC'S SHARE IS LARGER HERE THAN IN ALUMINUM CO. P.
461. 

(E)  WHERE THERE HAS BEEN A TREND TOWARD CONCENTRATION IN AN
INDUSTRY, ANY FURTHER CONCENTRATION SHOULD BE STOPPED.  P. 461. 

(F)  WHERE AN INDUSTRY IS ALREADY HIGHLY CONCENTRATED, IT IS
IMPORTANT TO PREVENT EVEN SLIGHT INCREASES THEREIN.  PP. 461-462. 

(G)  THE ARGUMENT THAT CCC'S AND HAG'S PRODUCTS WERE NOT IN DIRECT
COMPETITION AT THE TIME OF THE MERGER AND THAT THEREFORE THE MERGER
COULD HAVE NO EFFECT ON COMPETITION IGNORES THE FACT THAT THE REMOVAL
OF HAG AS AN INDEPENDENT FACTOR IN THE GLASS CONTAINER INDUSTRY AND IN
THE COMBINED METAL AND GLASS CONTAINER MARKET FORECLOSED ITS POTENTIAL
COMPETITION WITH CCC, NEGLECTS THE FURTHER FACT THAT CCC, ALREADY A
DOMINANT FIRM IN AN OLIGOPOLISTIC MARKET, HAS INCREASED ITS POWER AND
EFFECTIVENESS, AND FAILS TO CONSIDER THE TRIGGERING EFFECT THAT A
MERGER OF SUCH LARGE COMPANIES HAS ON THE REST OF THE INDUSTRY WHICH
SEEKS TO FOLLOW THE PATTERN WITH ANTICOMPETITIVE RESULT.  PP. 462-465. 

UNITED STATES V. CONTINENTAL CAN CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN 1956, CONTINENTAL CAN COMPANY, THE NATION'S SECOND LARGEST
PRODUCER OF METAL CONTAINERS, ACQUIRED ALL OF THE ASSETS, BUSINESS AND
GOOD WILL OF HAZEL-ATLAS GLASS COMPANY, THE NATION'S THIRD LARGEST
PRODUCER OF GLASS CONTAINERS, IN EXCHANGE FOR 999,140 SHARES OF
CONTINENTAL'S COMMON STOCK AND THE ASSUMPTION BY CONTINENTAL OF ALL THE
LIABILITIES OF HAZEL-ATLAS.  THE GOVERNMENT BROUGHT THIS ACTION SEEKING
A JUDGMENT THAT THE ACQUISITION VIOLATED SEC. 7 OF THE CLAYTON ACT
(FN1) AND REQUESTING AN APPROPRIATE DIVESTITURE ORDER.  TRYING THE CASE
WITHOUT A JURY, THE DISTRICT COURT FOUND THAT THE GOVERNMENT HAD FAILED
TO PROVE REASONABLE PROBABILITY OF ANTICOMPETITIVE EFFECT IN ANY LINE
OF COMMERCE, AND ACCORDINGLY DISMISSED THE COMPLAINT AT THE CLOSE OF
THE GOVERNMENT'S CASE.   UNITED STATES V. CONTINENTAL CAN CO., 217 F.
SUPP. 761 (D.C.S.D.N.Y.).  WE NOTED PROBABLE JURISDICTION TO CONSIDER
THE SPECIALIZED PROBLEMS INCIDENT TO THE APPLICATION OF SEC. 7 TO
INTERINDUSTRY MERGERS AND ACQUISITIONS.  (FN2)  375 U.S. 893.  WE
REVERSE THE DECISION OF THE DISTRICT COURT. 

                                         I. 

THE INDUSTRIES WITH WHICH THIS CASE IS PRINCIPALLY CONCERNED ARE, AS
FOUND BY THE TRIAL COURT, THE METAL CAN INDUSTRY, THE GLASS CONTAINER
INDUSTRY AND THE PLASTIC CONTAINER INDUSTRY, EACH PRODUCING ONE BASIC
TYPE OF CONTAINER MADE OF METAL, GLASS, AND PLASTIC, RESPECTIVELY. 

CONTINENTAL CAN IS A NEW YORK CORPORATION ORGANIZED IN 1913 TO
ACQUIRE ALL THE ASSETS OF THREE METAL CONTAINER MANUFACTURERS.  SINCE
1913 CONTINENTAL HAS ACQUIRED 21 DOMESTIC METAL CONTAINER COMPANIES AS
WELL AS NUMEROUS OTHERS ENGAGED IN THE PACKAGING BUSINESS, INCLUDING
PRODUCERS OF FLEXIBLE PACKAGING; A MANUFACTURER OF POLYETHYLENE BOTTLES
AND SIMILAR PLASTIC CONTAINERS; 14 PRODUCERS OF PAPER CONTAINERS AND
PAPERBOARD; FOUR COMPANIES MAKING CLOSURES FOR GLASS CONTAINERS; AND
ONE - HAZEL-ATLAS - PRODUCING GLASS CONTAINERS.  IN 1955, THE YEAR
PRIOR TO THE PRESENT MERGER, CONTINENTAL, WITH ASSETS OF $382 MILLION,
WAS THE SECOND LARGEST COMPANY IN THE METAL CONTAINER FIELD, SHIPPING
APPROXIMATELY 33% OF ALL SUCH CONTAINERS SOLD IN THE UNITED STATES.  IT
AND THE LARGEST PRODUCER, AMERICAN CAN COMPANY, ACCOUNTED FOR
APPROXIMATELY 71% OF ALL METAL CONTAINER SHIPMENTS.  NATIONAL CAN
COMPANY, THE THIRD LARGEST, SHIPPED APPROXIMATELY 5%, WITH THE
REMAINING 24% OF THE MARKET BEING DIVIDED AMONG 75 TO 90 OTHER FIRMS. 
(FN3) 

DURING 1956, CONTINENTAL ACQUIRED NOT ONLY THE HAZEL-ATLAS COMPANY
BUT ALSO ROBERT GAIR COMPANY, INC. - A LEADING MANUFACTURER OF PAPER
AND PAPERBOARD PRODUCTS - AND WHITE CAP COMPANY - A LEADING PRODUCER OF
VACUUM-TYPE METAL CLOSURES FOR GLASS FOOD CONTAINERS - SO THAT
CONTINENTAL'S ASSETS ROSE FROM $382 MILLION IN 1955 TO MORE THAN $633
MILLION IN 1956, AND ITS NET SALES AND OPERATING REVENUES DURING THAT
TIME INCREASED FROM $666 MILLION TO MORE THAN $1 BILLION. 

HAZEL-ATLAS WAS A WEST VIRGINIA CORPORATION WHICH IN 1955 HAD NET
SALES IN EXCESS OF $79 MILLION AND ASSETS OF MORE THAN $37 MILLION. 
PRIOR TO THE ABSORPTION OF HAZEL-ATLAS INTO CONTINENTAL THE PATTERN OF
DOMINANCE AMONG A FEW FIRMS IN THE GLASS CONTAINER INDUSTRY WAS SIMILAR
TO THAT WHICH PREVAILED IN THE METAL CONTAINER FIELD.  HAZEL-ATLAS WITH
APPROXIMATELY 9.6% OF THE GLASS CONTAINER SHIPMENTS IN 1955, WAS
THIRD.  OWENS-ILLINOIS GLASS COMPANY HAD 34.2% AND ANCHOR-HOCKING GLASS
COMPANY 11.6%, WITH THE REMAINING 44.6% BEING DIVIDED AMONG AT LEAST 39
OTHER FIRMS.  (FN4) 

AFTER AN INITIAL ATTEMPT TO PREVENT THE MERGER UNDER A 1950 CONSENT
DECREE FAILED, THE TERMS OF THE DECREE BEING HELD INAPPLICABLE TO THE
PROPOSED ACQUISITION, THE GOVERNMENT MOVED FOR A PRELIMINARY INJUNCTION
AGAINST ITS CONSUMMATION AND SOUGHT A TEMPORARY RESTRAINING ORDER
PENDING THE DETERMINATION OF ITS MOTION.  THE TEMPORARY RESTRAINING
ORDER WAS DENIED, AND ON THE SAME DAY THE MERGER WAS ACCOMPLISHED.  THE
GOVERNMENT THEN WITHDREW ITS MOTION FOR A PRELIMINARY INJUNCTION AND
CONTINUED THE ACTION AS ONE FOR DIVESTITURE. 

AT THE CONCLUSION OF THE GOVERNMENT'S CASE, CONTINENTAL MOVED FOR
DISMISSAL OF THE COMPLAINT.  AFTER THE DISTRICT COURT HAD GRANTED THE
MOTION UNDER RULE 41(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE BUT
BEFORE A FORMAL OPINION WAS FILED, THIS COURT HANDED DOWN ITS DECISION
IN BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294; ADDITIONAL BRIEFS
DIRECTED TO THE APPLICABILITY OF BROWN SHOE WERE FILED.  THE TRIAL
JUDGE HELD THAT UNDER THE GUIDELINES LAID DOWN BY BROWN SHOE THE
GOVERNMENT HAD NOT ESTABLISHED ITS RIGHT TO RELIEF UNDER SEC. 7 OF THE
CLAYTON ACT.  THIS APPEAL FOLLOWED. 

II. 

WE DEAL FIRST WITH THE RELEVANT MARKET.  IT IS NOT DISPUTED HERE, AND
THE DISTRICT COURT HELD, THAT THE GEOGRAPHICAL MARKET IS THE ENTIRE
UNITED STATES.  AS FOR THE PRODUCT MARKET, THE COURT FOUND, AS WAS
CONCEDED BY THE PARTIES, THAT THE CAN INDUSTRY AND THE GLASS CONTAINER
INDUSTRY WERE RELEVANT LINES OF COMMERCE.  BEYOND THESE TWO PRODUCT
MARKETS, HOWEVER, THE GOVERNMENT URGED THE RECOGNITION OF VARIOUS OTHER
LINES OF COMMERCE, SOME OF THEM DEFINED IN TERMS OF THE END USES FOR
WHICH TIN AND GLASS CONTAINERS WERE IN SUBSTANTIAL COMPETITION.  THESE
END-USE CLAIMS WERE CONTAINERS FOR THE BEER INDUSTRY, CONTAINERS FOR
THE SOFT DRINK INDUSTRY, CONTAINERS FOR THE CANNING INDUSTRY,
CONTAINERS FOR THE TOILETRY AND COSMETIC INDUSTRY, CONTAINERS FOR THE
MEDICINE AND HEALTH INDUSTRY, AND CONTAINERS FOR THE HOUSEHOLD AND
CHEMICAL INDUSTRY.  217 F. SUPP., AT 778-779. 

THE COURT, IN DEALING WITH THESE CLAIMS, RECOGNIZED THAT THERE WAS
INTERINDUSTRY COMPETITION AND MADE FINDINGS AS TO ITS EXTENT AND
NATURE: 

"THERE WAS SUBSTANTIAL AND VIGOROUS INTER-INDUSTRY COMPETITION
BETWEEN THESE THREE INDUSTRIES AND BETWEEN VARIOUS OF THE PRODUCTS
WHICH THEY MANUFACTURED.  METAL CAN, GLASS CONTAINER AND PLASTIC
CONTAINER MANUFACTURERS WERE EACH SEEKING TO ENLARGE THEIR SALES TO THE
THOUSANDS OF PACKERS OF HUNDREDS OF VARIETIES OF FOOD, CHEMICAL,
TOILETRY AND INDUSTRIAL PRODUCTS, RANGING FROM RIPE OLIVES TO FRUIT
JUICES TO TUNA FISH TO SMOKED TONGUE; FROM MAPLE SYRUP TO PET FOOD TO
COFFEE; FROM EMBALMING FLUID TO FLOOR WAX TO NAIL POLISH TO ASPIRIN TO
VETERINARY SUPPLIES, TO TAKE EXAMPLES AT RANDOM. 

"EACH INDUSTRY AND EACH OF THE MANUFACTURERS WITHIN IT WAS SEEKING TO
IMPROVE THEIR PRODUCTS SO THAT THEY WOULD APPEAL TO NEW CUSTOMERS OR
HOLD OLD ONES."  217 F. SUPP., AT 780-781. 

FURTHERMORE THE COURT FOUND THAT: 

"HAZEL-ATLAS AND CONTINENTAL WERE PART OF THIS OVERALL INDUSTRIAL
PATTERN, EACH IN A RECOGNIZED SEPARATE INDUSTRY PRODUCING DISTINCT
PRODUCTS BUT ENGAGED IN INTER-INDUSTRY COMPETITION FOR THE FAVOR OF
VARIOUS END USERS OF THEIR PRODUCTS."  ID., AT 781. 

THE COURT, NEVERTHELESS, WITH ONE EXCEPTION - CONTAINERS FOR BEER -
REJECTED THE GOVERNMENT'S CLAIM THAT EXISTING COMPETITION BETWEEN METAL
AND GLASS CONTAINERS HAD RESULTED IN THE END-USE PRODUCT MARKETS URGED
BY THE GOVERNMENT:  "THE FACT THAT THERE IS INTER-INDUSTRY OR INTER
PRODUCT COMPETITION BETWEEN METAL, GLASS AND PLASTIC CONTAINERS IS NOT
DETERMINATIVE OF THE METES AND BOUNDS OF A RELEVANT PRODUCT MARKET." 
IBID.  IN THE TRIAL COURT'S VIEW, THE GOVERNMENT FAILED TO MAKE
"APPROPRIATE DISTINCTIONS  ...  BETWEEN INTER-INDUSTRY OR OVERALL
COMMODITY COMPETITION AND THE TYPE OF COMPETITION BETWEEN PRODUCTS WITH
REASONABLE INTERCHANGEABILITY OF USE AND CROSS-ELASTICITY OF DEMAND
WHICH HAS CLAYTON ACT SIGNIFICANCE."  ID., AT 781-782.  THE
INTERINDUSTRY COMPETITION, CONCEDEDLY PRESENT, DID NOT REMOVE THIS
MERGER FROM THE CATEGORY OF THE CONGLOMERATE COMBINATION, "IN WHICH ONE
COMPANY IN TWO SEPARATE INDUSTRIES COMBINED WITH ANOTHER IN A THIRD
INDUSTRY FOR THE PURPOSE OF ESTABLISHING A DIVERSIFIED LINE OF
PRODUCTS."  ID., AT 782. 

WE CANNOT ACCEPT THIS CONCLUSION.  THE DISTRICT COURT'S FINDINGS
HAVING ESTABLISHED THE EXISTENCE OF THREE PRODUCT MARKETS - METAL
CONTAINERS, GLASS CONTAINERS AND METAL AND GLASS BEER CONTAINERS - THE
DISPUTED ISSUE ON WHICH THAT COURT ERRED IS WHETHER THE ADMITTED
COMPETITION BETWEEN METAL AND GLASS CONTAINERS FOR USES OTHER THAN
PACKAGING BEER WAS OF THE TYPE AND QUALITY DESERVING OF SEC. 7
PROTECTION AND THEREFORE THE BASIS FOR DEFINING A RELEVANT PRODUCT
MARKET.  IN RESOLVING THIS ISSUE WE ARE INSTRUCTED ON THE ONE HAND THAT
"FOR EVERY PRODUCT, SUBSTITUTES EXIST.  BUT A RELEVANT MARKET CANNOT
MEANINGFULLY ENCOMPASS THAT INFINITE RANGE."  TIMES-PICAYUNE V. UNITED
STATES, 345 U.S. 594, 612, N. 31.  ON THE OTHER HAND IT IS IMPROPER "TO
REQUIRE THAT PRODUCTS BE FUNGIBLE TO BE CONSIDERED IN THE RELEVANT
MARKET."  UNITED STATES V. DU PONT, 351 U.S. 377, 394.  IN DEFINING THE
PRODUCT MARKET BETWEEN THESE TERMINAL EXTREMES, WE MUST RECOGNIZE
MEANINGFUL COMPETITION WHERE IT IS FOUND TO EXIST.  THOUGH THE "OUTER
BOUNDARIES OF A PRODUCT MARKET ARE DETERMINED BY THE REASONABLE
INTERCHANGEABILITY OF USE OR THE CROSS-ELASTICITY OF DEMAND BETWEEN THE
PRODUCT ITSELF AND SUBSTITUTES FOR IT," THERE MAY BE "WITHIN THIS BROAD
MARKET, WELL-DEFINED SUBMARKETS  ...  WHICH, IN THEMSELVES, CONSTITUTE
PRODUCT MARKETS FOR ANTITRUST PURPOSES."  BROWN SHOE CO. V. UNITED
STATES, 370 U.S. 294, 325.  CONCEDEDLY THESE GUIDELINES OFFER NO
PRECISE FORMULA FOR JUDGMENT AND THEY NECESSITATE, RATHER THAN AVOID,
CAREFUL CONSIDERATION BASED UPON THE ENTIRE RECORD. 

IT IS QUITE TRUE THAT GLASS AND METAL CONTAINERS HAVE DIFFERENT
CHARACTERISTICS WHICH MAY DISQUALIFY ONE OR THE OTHER, AT LEAST IN
THEIR PRESENT FORM, FROM THIS OR THAT PARTICULAR USE; THAT THE
MACHINERY NECESSARY TO PACK IN GLASS IS DIFFERENT FROM THAT EMPLOYED
WHEN CANS ARE USED; THAT A PARTICULAR USER OF CANS OR GLASS MAY PACK IN
ONLY ONE OR THE OTHER CONTAINER AND DOES NOT SHIFT BACK AND FORTH FROM
DAY TO DAY AS PRICE AND OTHER FACTORS MIGHT MAKE DESIRABLE; AND THAT
THE COMPETITION BETWEEN METAL AND GLASS CONTAINERS IS DIFFERENT FROM
THE COMPETITION BETWEEN THE CAN COMPANIES THEMSELVES OR BETWEEN THE
PRODUCTS OF THE DIFFERENT GLASS COMPANIES.  THESE ARE RELEVANT AND
IMPORTANT CONSIDERATIONS BUT THEY ARE NOT SUFFICIENT TO OBSCURE THE
COMPETITIVE RELATIONSHIPS WHICH THIS RECORD SO COMPELLINGLY REVEALS. 

BABY FOOD WAS AT ONE TIME PACKED ENTIRELY IN METAL CANS.  HAZEL-ATLAS
PLAYED A SIGNIFICANT ROLE IN INDUCING THE SHIFT TO GLASS AS THE
DOMINANT CONTAINER BY DESIGNING "WHAT HAS BECOME THE TYPICAL BABY FOOD
JAR."  ACCORDING TO CONTINENTAL'S ESTIMATE, 80% OF THE NATION'S BABY
FOOD NOW MOVES IN GLASS CONTAINERS.  CONTINENTAL HAS NOT BEEN SATISFIED
WITH THIS CONTEMPORARY DOMINANCE BY GLASS, HOWEVER, AND HAS MADE
INTENSIVE EFFORTS TO INCREASE ITS SHARE OF THE BUSINESS AT THE EXPENSE
OF GLASS.  IN 1954, TWO YEARS BEFORE THE MERGER, THE DIRECTOR OF MARKET
RESEARCH AND PROMOTION FOR THE GLASS CONTAINER MANUFACTURERS INSTITUTE
CONCLUDED, LARGELY ON THE BASIS OF CONTINENTAL'S EFFORTS TO SECURE MORE
BABY FOOD BUSINESS, THAT "THE CAN INDUSTRY IS BEGINNING TO FIGHT BACK
MORE AGGRESSIVELY IN THIS FIELD WHERE IT IS LOSING GROUND TO GLASS." 
IN COOPERATION WITH SOME OF THE BABY FOOD COMPANIES CONTINENTAL CARRIED
OUT WHAT IT CALLED A BABY FOOD DEPTH SURVEY IN NEW YORK AND LOS ANGELES
TO DISCOVER SPECIFIC REASONS FOR THE PREFERENCE OF GLASS-PACKED BABY
FOOD.  LARGELY IN RESPONSE TO THIS AND OTHER IN-DEPTH SURVEYS,
ADVERTISING CAMPAIGNS WERE CONDUCTED WHICH WERE DESIGNED TO OVERCOME
MOTHERS' PREJUDICES AGAINST METAL CONTAINERS.  (FN5) 

IN THE SOFT DRINK BUSINESS, A FIELD WHICH HAS BEEN, AND IS,
PREDOMINANTLY GLASS TERRITORY, THE COURT RECOGNIZED THAT THE METAL CAN
INDUSTRY HAD "AFTER CONSIDERABLE INITIAL DIFFICULTY  ... DEVELOPED A
CAN STRONG ENOUGH TO RESIST THE PRESSURES GENERATED BY CARBONATED
BEVERAGES" AND "MADE STRENUOUS EFFORTS TO PROMOTE THE USE OF METAL CANS
FOR CARBONATED BEVERAGES AS AGAINST GLASS BOTTLES."  217 F. SUPP., AT
798.  CONTINENTAL HAS BEEN A MAJOR FACTOR IN THIS RIVALRY.  IT STUDIED
THE RESULTS OF MARKET TESTS TO DETERMINE THE EXTENT TO WHICH METAL CANS
COULD "PENETRATE THIS TREMENDOUS MARKET," AND ITS ADVERTISING HAS
CENTERED AROUND THE ADVANTAGES OF CANS OVER GLASS AS SOFT DRINK
CONTAINERS, EMPHASIZING SUCH FEATURES AS CONVENIENCE IN STACKING AND
STORING, FREEDOM FROM BREAKAGE AND LOWER DISTRIBUTION COSTS RESULTING
FROM THE LIGHTER WEIGHT OF CANS. 

THE DISTRICT COURT FOUND THAT "ALTHOUGH AT ONE TIME ALMOST ALL
PACKAGED BEER WAS SOLD IN BOTTLES, IN A RELATIVELY SHORT PERIOD THE
BEER CAN MADE GREAT HEADWAY AND MAY WELL HAVE BECOME THE DOMINANT BEER
CONTAINER."  217 F. SUPP., AT 795.  REGARDLESS OF WHICH INDUSTRY MAY
HAVE THE UPPER HAND AT A GIVEN MOMENT, HOWEVER, AN INTENSE COMPETITIVE
BATTLE ON BEHALF OF THE BEER CAN AND THE BEER BOTTLE IS BEING WAGED
BOTH BY THE INDUSTRY TRADE ASSOCIATIONS AND BY INDIVIDUAL CONTAINER
MANUFACTURERS, ONE OF THE PRINCIPAL PROTAGONISTS BEING CONTINENTAL. 
TECHNOLOGICAL DEVELOPMENT HAS BEEN AN IMPORTANT WEAPON IN THIS BATTLE. 
A SIGNIFICANT FACTOR IN THE GROWTH OF THE BEER CAN APPEARS TO HAVE BEEN
ITS NO-RETURN FEATURE.  THE GLASS INDUSTRY RESPONDED WITH THE
DEVELOPMENT OF A LIGHTER AND CHEAPER ONE-WAY BOTTLE.    IN THE FOOD
CANNING, TOILETRY AND COSMETIC, MEDICINE AND HEALTH, AND HOUSEHOLD AND
CHEMICAL INDUSTRIES THE EXISTENCE OF VIGOROUS COMPETITION WAS ALSO
RECOGNIZED BELOW.  IN THE CASE OF FOOD IT WAS NOTED THAT ONE TYPE OF
CONTAINER HAS SUPPLANTED THE OTHER IN THE PACKING OF SOME PRODUCTS AND
THAT IN SOME INSTANCES SIMILAR PRODUCTS ARE PACKAGED IN TWO OR MORE
DIFFERENT TYPES OF CONTAINERS.  IN THE OTHER INDUSTRIES "GLASS
CONTAINER, PLASTIC CONTAINER AND METAL CONTAINER MANUFACTURERS ARE EACH
SEEKING TO PROMOTE THEIR LINES OF CONTAINERS AT THE EXPENSE OF OTHER
LINES,  ...  ALL ARE ATTEMPTING TO IMPROVE THEIR PRODUCTS OR TO DEVELOP
NEW ONES SO AS TO HAVE A WIDER CUSTOMER APPEAL," 217 F. SUPP., AT 804,
THE RESULT BEING THAT "MANUFACTURERS FROM TIME TO TIME MAY SHIFT A
PRODUCT FROM ONE TYPE OF CONTAINER TO ANOTHER."  ID., AT 805. 

IN THE LIGHT OF THIS RECORD AND THESE FINDINGS, WE THINK THE DISTRICT
COURT EMPLOYED AN UNDULY NARROW CONSTRUCTION OF THE "COMPETITION"
PROTECTED BY SEC. 7 AND OF "REASONABLE INTERCHANGEABILITY OF USE OR THE
CROSS-ELASTICITY OF DEMAND" IN JUDGING THE FACTS OF THIS CASE.  WE
REJECT THE OPINION BELOW INSOFAR AS IT HOLDS THAT THESE TERMS AS USED
IN THE STATUTE OR IN BROWN SHOE WERE INTENDED TO LIMIT THE COMPETITION
PROTECTED BY SEC. 7 TO COMPETITION BETWEEN IDENTICAL PRODUCTS, TO THE
KIND OF COMPETITION WHICH EXISTS, FOR EXAMPLE, BETWEEN THE METAL
CONTAINERS OF ONE COMPANY AND THOSE OF ANOTHER, OR BETWEEN THE SEVERAL
MANUFACTURERS OF GLASS CONTAINERS.  CERTAINLY, THAT THE COMPETITION
HERE INVOLVED MAY BE CALLED "INTER-INDUSTRY COMPETITION" AND IS BETWEEN
PRODUCTS WITH DISTINCTIVE CHARACTERISTICS DOES NOT AUTOMATICALLY REMOVE
IT FROM THE REACH OF SEC. 7. 

INTERCHANGEABILITY OF USE AND CROSS-ELASTICITY OF DEMAND ARE NOT TO
BE USED TO OBSCURE COMPETITION BUT TO "RECOGNIZE COMPETITION WHERE, IN
FACT, COMPETITION EXISTS."  BROWN SHOE CO. V. UNITED STATES, 370 U.S.,
AT 326.  IN OUR VIEW THERE IS AND HAS BEEN A RATHER GENERAL
CONFRONTATION BETWEEN METAL AND GLASS CONTAINERS AND COMPETITION
BETWEEN THEM FOR THE SAME END USES WHICH IS INSISTENT, CONTINUOUS,
EFFECTIVE AND QUANTITYWISE VERY SUBSTANTIAL.  METAL HAS REPLACED GLASS
AND GLASS HAS REPLACED METAL AS THE LEADING CONTAINER FOR SOME
IMPORTANT USES; BOTH ARE USED FOR OTHER PURPOSES; EACH IS TRYING TO
EXPAND ITS SHARE OF THE MARKET AT THE EXPENSE OF THE OTHER; (FN6) AND
EACH IS ATTEMPTING TO PREEMPT FOR ITSELF EVERY USE FOR WHICH ITS
PRODUCT IS PHYSICALLY SUITABLE, EVEN THOUGH SOME SUCH USES HAVE
TRADITIONALLY BEEN REGARDED AS THE EXCLUSIVE DOMAIN OF THE COMPETING
INDUSTRY.  (FN7)  IN DIFFERING DEGREES FOR DIFFERENT END USES
MANUFACTURERS IN EACH INDUSTRY TAKE INTO CONSIDERATION THE PRICE OF THE
CONTAINERS OF THE OPPOSING INDUSTRY IN FORMULATING THEIR OWN PRICING
POLICY.  (FN8)  THUS, THOUGH THE INTERCHANGEABILITY OF USE MAY NOT BE
SO COMPLETE AND THE CROSS-ELASTICITY OF DEMAND NOT SO IMMEDIATE AS IN
THE CASE OF MOST INTRAINDUSTRY MERGERS, THERE IS OVER THE LONG RUN THE
KIND OF CUSTOMER RESPONSE TO INNOVATION AND OTHER COMPETITIVE STIMULI
THAT BRINGS THE COMPETITION BETWEEN THESE TWO INDUSTRIES WITHIN SEC.
7'S COMPETITION-PRESERVING PROSCRIPTIONS. 

MOREOVER, PRICE IS ONLY ONE FACTOR IN A USER'S CHOICE BETWEEN ONE
CONTAINER OR THE OTHER.  THAT THERE ARE PRICE DIFFERENTIALS BETWEEN THE
TWO PRODUCTS OR THAT THE DEMAND FOR ONE IS NOT PARTICULARLY OR
IMMEDIATELY RESPONSIVE TO CHANGES IN THE PRICE OF THE OTHER ARE
RELEVANT MATTERS BUT NOT DETERMINATIVE OF THE PRODUCT MARKET ISSUE. 
WHETHER A PACKAGER WILL USE GLASS OR CANS MAY DEPEND NOT ONLY ON THE
PRICE OF THE PACKAGE BUT ALSO UPON OTHER EQUALLY IMPORTANT
CONSIDERATIONS.  THE CONSUMER, FOR EXAMPLE, MAY BEGIN TO PREFER ONE
TYPE OF CONTAINER OVER THE OTHER AND THE MANUFACTURER OF BABY FOOD CANS
MAY THEREFORE FIND THAT HIS PROBLEM IS THE HOUSEWIFE RATHER THAN THE
PACKER OR THE PRICE OF HIS CANS.  (FN9)  THIS MAY NOT BE PRICE
COMPETITION BUT IT IS NEVERTHELESS MEANINGFUL COMPETITION BETWEEN
INTERCHANGEABLE CONTAINERS. 

WE THEREFORE CONCLUDE THAT THE AREA OF EFFECTIVE COMPETITION BETWEEN
THE METAL AND GLASS CONTAINER INDUSTRY IS FAR BROADER THAN THAT OF
CONTAINERS FOR BEER.  IT IS TRUE THAT THE RECORD IN THIS CASE DOES NOT
IDENTIFY WITH PARTICULARITY ALL END USES FOR WHICH COMPETITION EXISTS
AND ALL THOSE FOR WHICH COMPETITION MAY BE NON-EXISTENT, TOO REMOTE, OR
TOO EPHEMERAL TO WARRANT SEC. 7 APPLICATION.  NOR DOES THE RECORD
FURNISH THE EXACT QUANTITATIVE SHARE OF THE RELEVANT MARKET WHICH IS
ENJOYED BY THE INDIVIDUAL PARTICIPATING CAN AND GLASS COMPANIES.  BUT
"THE 'MARKET,' AS MOST CONCEPTS IN LAW OR ECONOMICS, CANNOT BE MEASURED
BY METES AND BOUNDS  ... .  OBVIOUSLY NO MAGIC INHERES IN NUMBERS." 
TIMES-PICAYUNE V. UNITED STATES, 345 U.S. 594, 611-612.  "INDUSTRIAL
ACTIVITIES CANNOT BE CONFINED TO TRIM CATEGORIES."  UNITED STATES.  V.
DU PONT, 351 U.S. 377, 395.  THE CLAIMED DEFICIENCIES IN THE RECORD
CANNOT SWEEP ASIDE THE EXISTENCE OF A LARGE AREA OF EFFECTIVE
COMPETITION BETWEEN THE MAKERS OF CANS AND THE MAKERS OF GLASS
CONTAINERS.  WE KNOW ENOUGH TO CONCLUDE THAT THE RIVALRY BETWEEN CANS
AND GLASS CONTAINERS IS PERVASIVE AND THAT THE AREA OF COMPETITIVE
OVERLAP BETWEEN THESE TWO PRODUCT MARKETS IS BROAD ENOUGH TO MAKE THE
POSITION OF THE INDIVIDUAL COMPANIES WITHIN THEIR OWN INDUSTRIES VERY
RELEVANT TO THE MERGER'S IMPACT WITHIN THE BROADER COMPETITIVE AREA
THAT EMBRACES BOTH OF THE MERGING FIRMS' RESPECTIVE INDUSTRIES. 

GLASS AND METAL CONTAINERS WERE RECOGNIZED TO BE TWO SEPARATE LINES
OF COMMERCE.  BUT GIVEN THE AREA OF EFFECTIVE COMPETITION BETWEEN THESE
LINES, THERE IS NECESSARILY IMPLIED ONE OR MORE OTHER LINES OF COMMERCE
EMBRACING BOTH INDUSTRIES.  SINCE THE PURPOSE OF DELINEATING A LINE OF
COMMERCE IS TO PROVIDE AN ADEQUATE BASIS FOR MEASURING THE EFFECTS OF A
GIVEN ACQUISITION, ITS CONTOURS MUST, AS NEARLY AS POSSIBLE, CONFORM TO
COMPETITIVE REALITY.  WHERE THE AREA OF EFFECTIVE COMPETITION CUTS
ACROSS INDUSTRY LINES, SO MUST THE RELEVANT LINE OF COMMERCE; OTHERWISE
AN ADEQUATE DETERMINATION OF THE MERGER'S TRUE IMPACT CANNOT BE MADE. 

BASED ON THE EVIDENCE THUS FAR REVEALED BY THIS RECORD WE HOLD THAT
THE INTERINDUSTRY COMPETITION BETWEEN GLASS AND METAL CONTAINERS IS
SUFFICIENT TO WARRANT TREATING AS A RELEVANT PRODUCT MARKET THE
COMBINED GLASS AND METAL CONTAINER INDUSTRIES AND ALL END USES FOR
WHICH THEY COMPETE.  THERE MAY BE SOME END USES FOR WHICH GLASS AND
METAL DO NOT AND COULD NOT COMPETE, BUT COMPLETE INTERINDUSTRY
COMPETITIVE OVERLAP NEED NOT BE SHOWN.  WE WOULD NOT BE TRUE TO THE
PURPOSE OF THE CLAYTON ACT'S LINE OF COMMERCE CONCEPT AS A FRAMEWORK
WITHIN WHICH TO MEASURE THE EFFECT OF MERGERS ON COMPETITION WERE WE TO
HOLD THAT THE EXISTENCE OF NONCOMPETITIVE SEGMENTS WITHIN A PROPOSED
MARKET AREA PRECLUDES ITS BEING TREATED AS A LINE OF COMMERCE. 

THIS LINE OF COMMERCE WAS NOT PRESSED UPON THE DISTRICT COURT. 
HOWEVER, SINCE IT IS COEXTENSIVE WITH THE TWO INDUSTRIES, WHICH WERE
HELD TO BE LINES OF COMMERCE, AND SINCE IT IS COMPOSED LARGELY, IF NOT
ENTIRELY, OF THE MORE PARTICULARIZED END-USE LINES URGED IN THE
DISTRICT COURT BY THE GOVERNMENT, WE SEE NOTHING TO PRECLUDE US FROM
REACHING THE QUESTION OF ITS PRIMA FACIE EXISTENCE AT THIS STAGE OF THE
CASE. 

NOR ARE WE CONCERNED BY THE SUGGESTION THAT IF THE PRODUCT MARKET IS
TO BE DEFINED IN THESE TERMS IT MUST INCLUDE PLASTIC, PAPER, FOIL AND
ANY OTHER MATERIALS COMPETING FOR THE SAME BUSINESS.  THAT THERE MAY BE
A BROADER PRODUCT MARKET MADE UP OF METAL, GLASS AND OTHER COMPETING
CONTAINERS DOES NOT NECESSARILY NEGATIVE THE EXISTENCE OF SUBMARKETS OF
CANS, GLASS, PLASTIC OR CANS AND GLASS TOGETHER, FOR "WITHIN THIS BROAD
MARKET, WELL-DEFINED SUBMARKETS MAY EXIST WHICH, IN THEMSELVES,
CONSTITUTE PRODUCT MARKETS FOR ANTITRUST PURPOSES."  BROWN SHOE CO. V.
UNITED STATES, 370 U.S., AT 325. 

             III. 

WE APPROACH THE ULTIMATE JUDGMENT UNDER SEC. 7 HAVING IN MIND THE
TEACHINGS OF BROWN SHOE, SUPPLEMENTED BY THEIR APPLICATION AND
ELABORATION IN UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321, AND UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S. 651.  THE
ISSUE IS WHETHER THE MERGER BETWEEN CONTINENTAL AND HAZEL-ATLAS WILL
HAVE PROBABLE ANTICOMPETITIVE EFFECT WITHIN THE RELEVANT LINE OF
COMMERCE.  MARKET SHARES ARE THE PRIMARY INDICIA OF MARKET POWER BUT A
JUDGMENT UNDER SEC. 7 IS NOT TO BE MADE BY ANY SINGLE QUALITATIVE OR
QUANTITATIVE TEST.  THE MERGER MUST BE VIEWED FUNCTIONALLY IN THE
CONTEXT OF THE PARTICULAR MARKET INVOLVED, ITS STRUCTURE, HISTORY AND
PROBABLE FUTURE.  WHERE A MERGER IS OF SUCH A SIZE AS TO BE INHERENTLY
SUSPECT, ELABORATE PROOF OF MARKET STRUCTURE, MARKET BEHAVIOR AND
PROBABLE ANTICOMPETITIVE EFFECTS MAY BE DISPENSED WITH IN VIEW OF SEC.
7'S DESIGN TO PREVENT UNDUE CONCENTRATION.  MOREOVER, THE COMPETITION
WITH WHICH SEC. 7 DEALS INCLUDES NOT ONLY EXISTING COMPETITION BUT THAT
WHICH IS SUFFICIENTLY PROBABLE AND IMMINENT.  SEE UNITED STATES V. EL
PASO NATURAL GAS CO., SUPRA. 

CONTINENTAL OCCUPIED A DOMINANT POSITION IN THE METAL CAN INDUSTRY. 
IT SHIPPED 33% OF THE METAL CANS SHIPPED BY THE INDUSTRY AND TOGETHER
WITH AMERICAN SHIPPED ABOUT 71% OF THE INDUSTRY TOTAL.  CONTINENTAL'S
SHARE AMOUNTED TO 13 BILLION METAL CONTAINERS OUT OF A TOTAL OF 40
BILLION AND ITS $433 MILLION GROSS SALES OF METAL CONTAINERS AMOUNTED
TO 31.4% OF THE INDUSTRY'S TOTAL GROSS OF $1,380,000,000. 
CONTINENTAL'S TOTAL ASSETS WERE $382 MILLION, ITS NET SALES AND
OPERATING REVENUES $666 MILLION. 

IN ADDITION TO DEMONSTRATING THE DOMINANT POSITION OF CONTINENTAL IN
A HIGHLY CONCENTRATED INDUSTRY, THE DISTRICT COURT'S FINDINGS CLEARLY
REVEALED CONTINENTAL'S VIGOROUS EFFORTS ALL ACROSS THE COMPETITIVE
FRONT BETWEEN METAL AND GLASS CONTAINERS.  CONTINENTAL OBVIOUSLY PUSHED
METAL CONTAINERS WHEREVER METAL CONTAINERS COULD BE PUSHED.  ITS SHARE
OF THE BEER CAN MARKET RAN FROM 43% IN 1955 TO 46% IN 1957.  ITS SHARE
OF BOTH BEER CAN AND BEER BOTTLE SHIPMENTS, DISREGARDING THE RETURNABLE
BOTTLE FACTOR, RAN FROM 36% IN 1955 TO 38% IN 1957.  ALTHOUGH METAL
CANS HAVE SO FAR OCCUPIED A RELATIVELY SMALL PERCENTAGE OF THE SOFT
DRINK CONTAINER FIELD, CONTINENTAL'S SHARE OF THIS CAN MARKET RANGED
FROM 36% IN 1955 TO 26% IN 1957 AND ITS PORTION OF THE TOTAL SHIPMENTS
OF GLASS AND METAL SOFT DRINK AND BEVERAGE CONTAINERS, DISREGARDING THE
RETURNABLE BOTTLE FACTOR, WAS 7.2% IN 1955, APPROXIMATELY 5.4% IN 1956
AND APPROXIMATELY 6.2% IN 1957 (FOR 1956 AND 1957 THESE FIGURES INCLUDE
HAZEL-ATLAS' SHARE).  IN THE CATEGORY COVERING ALL NONFOOD PRODUCTS,
CONTINENTAL'S SHARE WAS APPROXIMATELY 30% OF THE TOTAL SHIPMENTS OF
METAL CONTAINERS FOR SUCH USES. 

CONTINENTAL'S MAJOR POSITION IN THE RELEVANT PRODUCT MARKET - THE
COMBINED METAL AND GLASS CONTAINER INDUSTRIES - PRIOR TO THE MERGER IS
UNDENIABLE.  OF THE 59 BILLION CONTAINERS SHIPPED IN 1955 BY THE METAL
(39 3/4 BILLION) AND GLASS (19 1/3 BILLION) INDUSTRIES, CONTINENTAL
SHIPPED 21.9%, TO A GREAT EXTENT DISPERSED AMONG ALL OF THE END USES
FOR WHICH GLASS AND METAL COMPETE.  (FN10)  OF THE SIX LARGEST FIRMS IN
THE PRODUCT MARKET, IT RANKED SECOND. 

WHEN CONTINENTAL ACQUIRED HAZEL-ATLAS IT ADDED SIGNIFICANTLY TO ITS
POSITION IN THE RELEVANT LINE OF COMMERCE.  HAZEL-ATLAS WAS THE THIRD
LARGEST GLASS CONTAINER MANUFACTURER IN AN INDUSTRY IN WHICH THE THREE
TOP COMPANIES CONTROLLED 55.4% OF THE TOTAL SHIPMENTS OF GLASS
CONTAINERS.  HAZEL-ATLAS' SHARE WAS 9.6%, WHICH AMOUNTED TO
1,857,000,000 GLASS CONTAINERS OUT OF A TOTAL OF 19 1/3 BILLION
INDUSTRIAL TOTAL.  ITS ANNUAL SALES AMOUNTED TO $79 MILLION, ITS ASSETS
EXCEEDED $37 MILLION AND IT HAD 13 PLANTS VARIOUSLY LOCATED IN THE
UNITED STATES.  IN TERMS OF TOTAL CONTAINERS SHIPPED, HAZEL-ATLAS
RANKED SIXTH IN THE RELEVANT LINE OF COMMERCE, ITS ALMOST 2 BILLION
CONTAINERS BEING 3.1% OF THE PRODUCT MARKET TOTAL. 

THE EVIDENCE SO FAR PRESENTED LEADS US TO CONCLUDE THAT THE MERGER
BETWEEN CONTINENTAL AND HAZEL-ATLAS IS IN VIOLATION OF SEC. 7.  THE
PRODUCT MARKET EMBRACING THE COMBINED METAL AND GLASS CONTAINER
INDUSTRIES WAS DOMINATED BY SIX FIRMS HAVING A TOTAL OF 70.1% OF THE
BUSINESS.  (FN11) CONTINENTAL, WITH 21.9% OF THE SHIPMENTS, RANKED
SECOND WITHIN THIS PRODUCT MARKET, AND HAZEL-ATLAS, WITH 3.1%, RANKED
SIXTH.  THUS, OF THIS VAST MARKET - AMOUNTING AT THE TIME OF THE MERGER
TO ALMOST $3 BILLION IN ANNUAL SALES - A LARGE PERCENTAGE ALREADY
BELONGED TO CONTINENTAL BEFORE THE MERGER.  BY THE ACQUISITION OF HAZEL
ATLAS STOCK CONTINENTAL NOT ONLY INCREASED ITS OWN SHARE MORE THAN 14%
FROM 21.9% TO 25%, BUT ALSO REDUCED FROM FIVE TO FOUR THE MOST
SIGNIFICANT COMPETITORS WHO MIGHT HAVE THREATENED ITS DOMINANT
POSITION.  THE RESULTING PRECENTAGE OF THE COMBINED FIRMS APPROACHES
THAT HELD PRESUMPTIVELY BAD IN UNITED STATES V. PHILADELPHIA NATIONAL
BANK, 374 U.S. 321, AND IS ALMOST THE SAME AS THAT INVOLVED IN UNITED
STATES V. ALUMINUM CO. OF AMERICA, 377 U.S. 271.  THE INCREMENTAL
ADDITION TO THE ACQUIRING FIRM'S SHARE IS CONSIDERABLY LARGER THAN IN
ALUMINUM CO. THE CASE FALLS SQUARELY WITHIN THE PRINCIPLE THAT WHERE
THERE HAS BEEN A "HISTORY OF TENDENCY TOWARD CONCENTRATION IN THE
INDUSTRY" TENDENCIES TOWARD FURTHER CONCENTRATION "ARE TO BE CURBED IN
THEIR INCIPIENCY."  BROWN SHOE CO. V. UNITED STATES, 370 U.S., AT 345,
346.  WHERE "CONCENTRATION IS ALREADY GREAT, THE IMPORTANCE OF
PREVENTING EVEN SLIGHT INCREASES IN CONCENTRATION AND SO PRESERVING THE
POSSIBILITY OF EVENTUAL DECONCENTRATION IS CORRESPONDINGLY GREAT." 
UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 365, N. 42;
UNITED STATES V. ALUMINUM CO. OF AMERICA, SUPRA.    CONTINENTAL
INSISTS, HOWEVER, THAT WHATEVER THE NATURE OF INTERINDUSTRY COMPETITION
IN GENERAL, THE TYPES OF CONTAINERS PRODUCED BY CONTINENTAL AND HAZEL
ATLAS AT THE TIME OF THE MERGER WERE FOR THE MOST PART NOT IN
COMPETITION WITH EACH OTHER AND HENCE THE MERGER COULD HAVE NO EFFECT
ON COMPETITION.  THIS ARGUMENT IGNORES SEVERAL IMPORTANT MATTERS. 

FIRST:  THE DISTRICT COURT FOUND THAT BOTH CONTINENTAL AND HAZEL
ATLAS WERE ENGAGED IN INTERINDUSTRY COMPETITION CHARACTERISTIC OF THE
GLASS AND METAL CAN INDUSTRIES.  WHILE THE POSITION OF HAZEL-ATLAS IN
THE BEER AND SOFT DRINK INDUSTRIES WAS NEGLIGIBLE IN 1955, ITS POSITION
WAS QUITE DIFFERENT IN OTHER FIELDS.  HAZEL-ATLAS MADE BOTH WIDE
MOUTHED GLASS JARS AND NARROW-NECKED CONTAINERS BUT MORE OF THE FORMER
THAN THE LATTER.  BOTH ARE USED IN PACKING FOOD, MEDICINE AND HEALTH
SUPPLIES, HOUSEHOLD AND INDUSTRIAL PRODUCTS AND TOILETRIES AND
COSMETICS, AMONG OTHERS, AND HAZEL-ATLAS' POSITION IN SUPPLYING THE
PACKAGING NEEDS OF THESE INDUSTRIES WAS INDEED IMPORTANT.  IN 1955, IT
SHIPPED ABOUT 8% OF THE NARROW-NECKED BOTTLES AND ABOUT 14% OF THE WIDE
MOUTHED GLASS CONTAINERS FOR FOOD; ABOUT 10% OF THE NARROW-NECKED AND
40% OF THE WIDE-MOUTHED GLASS CONTAINERS FOR THE HOUSEHOLD AND CHEMICAL
INDUSTRY; ABOUT 9% OF THE NARROW-NECKED AND 28% OF THE WIDE-MOUTHED
GLASS CONTAINERS FOR THE TOILETRIES AND COSMETICS INDUSTRY; AND ABOUT
6% OF THE NARROW-NECKED AND 25% OF THE WIDE-MOUTHED GLASS CONTAINERS
FOR THE MEDICINE AND HEALTH INDUSTRY.  CONTINENTAL, AS WE HAVE SAID, IN
1955 SHIPPED 30% OF THE CONTAINERS USED FOR THESE SAME NONFOOD
PURPOSES.  IN THESE INDUSTRIES THE DISTRICT COURT FOUND THAT THE GLASS
CONTAINER AND METAL CONTAINER MANUFACTURERS WERE EACH SEEKING TO
PROMOTE THEIR LINES OF CONTAINERS AT THE EXPENSE OF THE OTHER LINES AND
THAT ALL WERE ATTEMPTING TO IMPROVE THEIR PRODUCTS OR TO DEVELOP NEW
ONES SO AS TO HAVE A WIDER CUSTOMER APPEAL.  WE THINK IT QUITE CLEAR
THAT CONTINENTAL AND HAZEL-ATLAS WERE SET OFF DIRECTLY AGAINST ONE
ANOTHER IN THIS PROCESS AND THAT THE MERGER THEREFORE CARRIES WITH IT
THE PROBABILITY OF FORECLOSING ACTUAL AND POTENTIAL COMPETITION BETWEEN
THESE TWO CONCERNS.  HAZEL-ATLAS HAS BEEN REMOVED AS AN INDEPENDENT
FACTOR IN THE GLASS INDUSTRY AND IN THE LINE OF COMMERCE WHICH INCLUDES
BOTH METAL CANS AND GLASS CONTAINERS. 

WE THINK THE DISTRICT COURT ERRED IN PLACING HEAVY RELIANCE ON
CONTINENTAL'S MANAGEMENT OF ITS HAZEL-ATLAS DIVISION AFTER THE MERGER
WHILE CONTINENTAL WAS UNDER SOME PRESSURE BECAUSE OF THE PENDING
GOVERNMENT ANTITRUST SUIT.  CONTINENTAL ACQUIRED BY THE MERGER THE
POWER TO GUIDE THE DEVELOPMENT OF HAZEL-ATLAS CONSISTENTLY WITH
CONTINENTAL'S INTEREST IN METAL CONTAINERS; CONTRARIWISE IT MAY FIND
ITSELF UNWILLING TO PUSH METAL CONTAINERS TO THE EXCLUSION OF GLASS FOR
THOSE END USES WHERE HAZEL-ATLAS IS STRONG.  IT HAS AT THE SAME TIME
ACQUIRED THE ABILITY, KNOW-HOW AND THE CAPACITY TO SATISFY ITS
CUSTOMERS' DEMANDS WHETHER THEY WANT METAL OR GLASS CONTAINERS. 
CONTINENTAL NEED NO LONGER LOSE CUSTOMERS TO GLASS COMPANIES SOLELY
BECAUSE CONSUMER PREFERENCE, PERHAPS TRIGGERED BY COMPETITIVE EFFORTS
BY THE GLASS CONTAINER INDUSTRY, FORCES THE PACKER TO TURN FROM CANS TO
GLASS.  AND NO LONGER DOES A HAZEL-ATLAS CUSTOMER WHO HAS NORMALLY
PACKED IN GLASS HAVE TO LOOK ELSEWHERE FOR METAL CONTAINERS IF HE
DISCOVERS THAT THE CAN RATHER THAN THE JAR WILL ANSWER SOME OF HIS
PRESSING PROBLEMS. 

SECOND:  CONTINENTAL WOULD VIEW THESE DEVELOPMENTS AS REPRESENTING AN
ACCEPTABLE EFFORT BY IT TO DIVERSIFY ITS PRODUCT LINES AND TO GAIN THE
RESULTING COMPETITIVE ADVANTAGES, THEREBY STRENGTHENING COMPETITION
WHICH IT DECLARED THE ANTITRUST LAWS ARE DESIGNED TO PROMOTE.  BUT WE
THINK THE ANSWER IS OTHERWISE WHEN A DOMINANT FIRM IN A LINE OF
COMMERCE IN WHICH MARKET POWER IS ALREADY CONCENTRATED AMONG A FEW
FIRMS MAKES AN ACQUISITION WHICH ENHANCES ITS MARKET POWER AND THE
VIGOR AND EFFECTIVENESS OF ITS OWN COMPETITIVE EFFORTS. 

THIRD:  A MERGER BETWEEN THE SECOND AND SIXTH LARGEST COMPETITORS IN
A GIGANTIC LINE OF COMMERCE IS SIGNIFICANT NOT ONLY FOR ITS INTRINSIC
EFFECT ON COMPETITION BUT ALSO FOR ITS TENDENCY TO ENDANGER A MUCH
BROADER ANTICOMPETITIVE EFFECT BY TRIGGERING OTHER MERGERS BY COMPANIES
SEEKING THE SAME COMPETITIVE ADVANTAGES SOUGHT BY CONTINENTAL IN THIS
CASE.  AS THE COURT SAID IN BROWN SHOE, "IF A MERGER ACHIEVING 5%
CONTROL WERE NOW APPROVED, WE MIGHT BE REQUIRED TO APPROVE FUTURE
MERGER EFFORTS BY BROWN'S COMPETITORS SEEKING SIMILAR MARKET SHARES." 
370 U.S., AT 343-344. 

FOURTH:  IT IS NOT AT ALL SELF-EVIDENT THAT THE LACK OF CURRENT
COMPETITION BETWEEN CONTINENTAL AND HAZEL-ATLAS FOR SOME IMPORTANT END
USES OF METAL AND GLASS CONTAINERS SIGNIFICANTLY DIMINISHED THE ADVERSE
EFFECT OF THE MERGER ON COMPETITION.  CONTINENTAL MIGHT HAVE CONCLUDED
THAT IT COULD EFFECTIVELY INSULATE ITSELF FROM COMPETITION BY ACQUIRING
A MAJOR FIRM NOT PRESENTLY DIRECTING ITS MARKET ACQUISITION EFFORTS
TOWARD THE SAME END USES AS CONTINENTAL, BUT POSSESSING THE POTENTIAL
TO DO SO.  TWO EXAMPLES WILL ILLUSTRATE.  BOTH SOFT DRINKS AND BABY
FOOD ARE CURRENTLY PACKED PREDOMINANTLY IN GLASS, BUT CONTINENTAL HAS
ENGAGED IN VIGOROUS AND IMAGINATIVE PROMOTIONAL ACTIVITIES ATTEMPTING
TO OVERCOME CONSUMER PREFERENCES FOR GLASS AND SECURE A LARGER SHARE OF
THESE TWO MARKETS FOR ITS TIN CANS.  HAZEL-ATLAS WAS NOT AT THE TIME OF
THE MERGER A SIGNIFICANT PRODUCER OF EITHER OF THESE CONTAINERS, BUT
WITH COMPARATIVELY LITTLE DIFFICULTY, IF IT WERE AN INDEPENDENT FIRM
MAKING INDEPENDENT BUSINESS JUDGMENTS, IT COULD HAVE DEVELOPED ITS SOFT
DRINK AND BABY FOOD CAPACITY.  THE ACQUISITION OF HAZEL-ATLAS BY A
COMPANY ENGAGED IN SUCH INTENSE EFFORTS TO EFFECT A DIVERSION OF
BUSINESS FROM GLASS TO METAL IN BOTH OF THESE LINES CANNOT HELP BUT
DIMINISH THE LIKELIHOOD OF HAZEL-ATLAS REALIZING ITS POTENTIAL AS A
SIGNIFICANT COMPETITOR IN EITHER LINE.  OUR VIEW OF THE RECORD COMPELS
US TO DISAGREE WITH THE DISTRICT COURT'S CONCLUSION THAT CONTINENTAL,
AS A RESULT OF THE MERGER, WAS NOT "LIKELY TO CEASE BEING AN INNOVATOR
IN EITHER (THE GLASS OR METAL CONTAINER) LINE."  217 F. SUPP., AT 790. 
IT WOULD MAKE LITTLE SENSE FOR ONE ENTITY WITHIN THE CONTINENTAL EMPIRE
TO BE BUSILY ENGAGED IN PERSUADING THE PUBLIC OF METAL'S SUPERIORITY
OVER GLASS FOR A GIVEN END USE, WHILE THE OTHER IS MAKING PLANS TO
INCREASE THE NATION'S TOTAL GLASS CONTAINER OUTPUT FOR THAT SAME END
USE.  THUS, THE FACT THAT CONTINENTAL AND HAZEL-ATLAS WERE NOT
SUBSTANTIAL COMPETITORS OF EACH OTHER FOR CERTAIN END USES AT THE TIME
OF THE MERGER MAY ACTUALLY ENHANCE THE LONG-RUN TENDENCY OF THE MERGER
TO LESSEN COMPETITION. 

WE THINK OUR HOLDING IS CONSONANT WITH THE PURPOSE OF SEC. 7 TO
ARREST ANTICOMPETITIVE ARRANGEMENTS IN THEIR INCIPIENCY.  SOME PRODUCT
LINES ARE OFFERED IN BOTH METAL AND GLASS CONTAINERS BY THE SAME
PACKER.  IN SUCH AREAS THE INTERCHANGEABILITY OF USE AND IMMEDIATE
INTERINDUSTRY SENSITIVITY TO PRICE CHANGES WOULD APPROACH THAT WHICH
EXISTS BETWEEN PRODUCTS OF THE SAME INDUSTRY.   IN OTHER LINES, AS
WHERE ONE PACKER'S PRODUCTS MOVE IN ONE TYPE CONTAINER WHILE HIS
COMPETITOR'S MOVE IN ANOTHER, THERE ARE INHERENT DETERRENTS TO CUSTOMER
DIVERSION OF THE SAME TYPE THAT MIGHT OCCUR BETWEEN BRANDS OF CANS OR
BOTTLES.  BUT THE POSSIBILITY OF SUCH TRANSFERS OVER THE LONG RUN ACTS
AS A DETERRENT AGAINST ATTEMPTS BY THE DOMINANT MEMBERS OF EITHER
INDUSTRY TO REAP THE POSSIBLE BENEFITS OF THEIR POSITION BY RAISING
PRICES ABOVE THE COMPETITIVE LEVEL OR ENGAGING IN OTHER COMPARABLE
PRACTICES.  AND EVEN THOUGH CERTAIN LINES ARE TODAY REGARDED AS SAFELY
WITHIN THE DOMAIN OF ONE OR THE OTHER OF THESE INDUSTRIES, THIS PATTERN
MAY BE ALTERED, AS IT HAS BEEN IN THE PAST.  FROM THE POINT OF VIEW NOT
ONLY OF THE STATIC COMPETITIVE SITUATION BUT ALSO THE DYNAMIC LONG-RUN
POTENTIAL, WE THINK THAT THE GOVERNMENT HAS DISCHARGED ITS BURDEN OF
PROVING PRIMA FACIE ANTICOMPETITIVE EFFECT.  ACCORDINGLY THE JUDGMENT
IS REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  REVERSED. 

FN1  SECTION 7 OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED BY THE
CELLER-KEFAUVER ANTIMERGER ACT, 64 STAT. 1125, 15 U.S.C. SEC. 18,
PROVIDES IN RELEVANT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

FN2  BOTH PARTIES AND THE DISTRICT COURT REFER TO THIS AS AN
INTERINDUSTRY MERGER.  THE WORD "INDUSTRY" IS SUSCEPTIBLE OF MORE THAN
ONE MEANING.  IT MIGHT BE DEFINED IN TERMS OF END USES FOR WHICH
VARIOUS PRODUCTS COMPETE; SO DEFINED IT WOULD BE ROUGHLY EQUIVALENT TO
THE CONCEPT OF A "LINE OF COMMERCE."  ACCORDING TO THIS INTERPRETATION
THE GLASS AND METAL CONTAINER BUSINESSES, TO THE EXTENT THEY COMPETE,
ARE IN THE SAME INDUSTRY.  ON THE OTHER HAND, "INDUSTRY" MIGHT ALSO
DENOTE AN AGGREGATE OF ENTERPRISES EMPLOYING SIMILAR PRODUCTION AND
MARKETING FACILITIES AND PRODUCING PRODUCTS HAVING MARKEDLY SIMILAR
CHARACTERISTICS.  IN MANY INSTANCES, THE SEGMENTS OF ECONOMIC ENDEAVOR
EMBRACED BY THESE TWO CONCEPTS OF "INDUSTRY" WILL BE SUBSTANTIALLY
COEXTENSIVE, SINCE THOSE WHO EMPLOY THE SAME TYPES OF MACHINERY TO TURN
OUT THE SAME GENERAL PRODUCT OFTEN COMPETE IN THE SAME MARKET.  SINCE
THIS IS NOT SUCH A CASE IT WILL BE HELPFUL TO USE THE WORD "INDUSTRY"
AS REFERRING TO SIMILARITY OF PRODUCTION FACILITIES AND PRODUCTS.  SO
VIEWED, "INTERINDUSTRY COMPETITION" BECOMES A MEANINGFUL CONCEPT. 

FN3  THE DISTRICT COURT FOUND THAT THE BASIC RAW MATERIAL USED IN THE
MANUFACTURE OF CANS, AND THE MAJOR COST FACTOR BEARING ON THEIR PRICE
IS TIN-COATED STEEL (TIN PLATE).  IN SOME INSTANCES UNCOATED STEEL
(BLACKPLATE) OR ALUMINUM IS USED INSTEAD OF TIN PLATE.  OTHER RAW
MATERIALS INCLUDE SOLDERING COMPOUNDS, PAINTS, VARNISHES, LITHOGRAPHIC
INKS, PAPER AND CARTONS FOR PACKAGING.  CANS ARE RIGID AND UNBREAKABLE,
CAN BE HERMETICALLY SEALED AND ARE IMPERMEABLE TO GASES.  THEY ARE
LIGHTER THAN GLASS CONTAINERS, CAN BE HEAT-PROCESSED FASTER, AND ARE
NOT CHEMICALLY INERT. 

FORTY-NINE MEMBERS OF THE METAL CAN INDUSTRY ARE ORGANIZED IN A TRADE
ASSOCIATION KNOWN AS THE CAN MANUFACTURERS INSTITUTE WHICH MAINTAINS A
PROFESSIONAL STAFF OF THREE.  ACTING LARGELY THROUGH COMMITTEES, IT
DEALS WITH VARIOUS TECHNICAL PROBLEMS OF THE INDUSTRY AND CARRIES OUT
SOME PROMOTIONAL ACTIVITIES EMPHASIZING THE ADVANTAGES OF THE METAL
CAN. 

FN4  ACCORDING TO THE FINDINGS OF THE DISTRICT COURT, GLASS
CONTAINERS ARE MADE PRINCIPALLY FROM SAND, LIME, AND SODA ASH, AND THE
MAJOR FACTOR IN DETERMINING THEIR PRICE IS THE COST OF LABOR.  GLASS
CONTAINERS ARE RIGID, BREAKABLE, AND CHEMICALLY INERT.  THEY CAN BE
HERMETICALLY SEALED AND, UNLIKE MANY CANS, CAN BE EASILY RESEALED AFTER
THEY HAVE BEEN OPENED.  THE INDUSTRY RECOGNIZES TWO BASIC TYPES OF
CONTAINERS, THE WIDE MOUTH AND THE NARROW NECK.  MEMBERS OF THIS
INDUSTRY ALSO HAVE A TRADE ASSOCIATION, THE GLASS CONTAINER
MANUFACTURERS INSTITUTE, WHICH, THROUGH ITS 45 EMPLOYEES AND ITS
STANDING COMMITTEES, CARRIES ON SUCH ACTIVITIES AS MARKET RESEARCH AND
PROMOTION, TECHNICAL RESEARCH, PACKAGE DESIGN AND SPECIFICATIONS, THE
DEVELOPMENT OF STANDARD TESTING AND QUALITY CONTROL PROCEDURES,
PROBLEMS OF FREIGHT RATES, LABOR RELATIONS, AND LIAISON WORK WITH
GOVERNMENT.  IN RECENT DECADES THE EXPANSION OF THE GLASS CONTAINER
INDUSTRY HAS BEEN MORE RAPID THAN, AND OFTEN REALIZED AT THE EXPENSE
OF, THE METAL CAN INDUSTRY.  DURING WORLD WAR II, FOR EXAMPLE,
SUBSTANTIAL INCREMENTS IN THE MARKET SERVED BY GLASS CONTAINER
MANUFACTURERS WERE MADE POSSIBLE BY THE SHORT SUPPLY OF TIN PLATE. 

THE THIRD INDUSTRY FOUND BY THE DISTRICT COURT TO BE INVOLVED IN THIS
MULTI-INDUSTRY COMPETITIVE PICTURE WAS THE PLASTIC CONTAINER INDUSTRY,
WHICH, THOUGH A RELATIVE NEWCOMER, HAS ENJOYED IMPRESSIVE GROWTH SINCE
MAKING ITS DEBUT IN THE MID-1940'S.  ITS DOLLAR SALES VOLUME IS SMALL
COMPARED WITH THAT OF ITS METAL AND GLASS COUNTERPARTS, BUT ITS GROWTH
HAS BEEN AND CONTINUES TO BE STEADY AND RAPID. 

FN5  IN 1952 CONTINENTAL RAN A SERIES OF ADVERTISEMENTS EMPHASIZING
THE FOLLOWING "5 REASONS WHY CANS ARE AN IDEAL CONTAINER FOR BABY
FOODS:" 

"1.  ECONOMICAL.  BABY FOOD IN CANS IS USUALLY PRICED AS LOW OR LOWER
THAN BABY FOOD PACKED IN OTHER CONTAINERS. 

"2.  STERILE.  PROCESSING STERILIZES THE INSIDE, AND LIGHT, DUST AND
GERMS CAN'T GET INTO A HERMETICALLY SEALED CAN. 

"3.  EXTRA SAFETY.  CANS ARE SEALED TO STAY SEALED UNTIL THE CONSUMER
OPENS THEM. 

"4.  SHATTERPROOF.  STEEL AND TIN WON'T BREAK, SHATTER OR CHIP. 

"5.  SAFE FOR LEFT-OVERS.  FOOD CAN BE SAFELY LEFT IN THE CAN, JUST
KEEP IT COVERED AND UNDER REFRIGERATION." 

FN6  CONSUMER PREFERENCES FOR GLASS OR METAL ARE OFTEN REGIONAL AND
TRACEABLE TO FACTORS OTHER THAN THE INTRINSIC SUPERIORITY OF THE
PREFERRED CONTAINER.  FOR EXAMPLE, THE ONE-WAY BEER BOTTLE WAS HIGHLY
SUCCESSFUL IN BALTIMORE - DUE IN PART TO THE EFFORTS OF "A HIGHLY
MOTIVATED LEADING BREWER" - BUT FAILED TO MAKE HEADWAY IN DETROIT.  AND
THOUGH GLASS APPEARS TO HAVE ABOUT 80% OF THE NATION'S BABY FOOD
BUSINESS, AS OF THE TIME OF THE MERGER CANS HAD OVER 60% OF THE
BUSINESS WEST OF THE MISSISSIPPI.  ACCORDING TO ONE OPINION IN THE
RECORD, ALL CANADIAN BABY FOOD MOVES IN CANS.  AND AN OFFICIAL OF THE
GLASS CONTAINER MANUFACTURERS INSTITUTE REPORTED TO THAT BODY THAT
PICKLES, PRESERVES, AND JAMS ARE PACKED IN TIN CANS IN CANADA. 

FN7  FORD SAMMIS & COMPANY, A FIRM OF MARKET ECONOMISTS, CONDUCTED
FOR THE GLASS CONTAINER MANUFACTURERS INSTITUTE MARKET SURVEYS OF 28
DIFFERENT PRODUCT CLASSIFICATIONS.  ON THE BASIS OF OVER 3 1/4 MILLION
INDIVIDUAL ANSWERS TO QUESTIONS ASKED IN MORE THAN 12,000 PERSONAL
INTERVIEWS, FORD SAMMIS CONCLUDED THE FOLLOWING:    "EVERY CONSUMER
PRODUCT TENDS TO STANDARDIZE ON A SINGLE TYPE OF CONTAINER.  GLASS HAS
BECOME THE STANDARD, TRADITIONAL CONTAINER FOR A HOST OF PRODUCTS,
INCLUDING CATSUP, SALAD DRESSINGS, SALAD OIL, INSTANT COFFEE, PRUNE
JUICE, MAYONNAISE, PEANUT BUTTER, JAMS AND SYRUP.  OTHER PRODUCTS HAVE
STANDARDIZED ON TIN CANS - REGULAR COFFEE, EVAPORATED MILK, DOG FOOD,
AND MOST FRUITS, VEGETABLES AND JUICES.    "HOWEVER, NO TRADITIONAL
MARKET IS EVER SECURE FOR ANY TYPE OF CONTAINER.  MARKETERS ARE APT TO
TRY OUT NEW CONTAINERS AT ANY TIME, IN THEIR CONSTANT SEARCH FOR WAYS
TO INCREASE SALES. 

"WHEN THIS HAPPENS, THE RESULT IS A PERIOD OF CONTAINER COMPETITION,
WHICH MAY RUN THROUGH ONE OR MORE OF THREE SEPARATE STAGES." 

1.  STAGE 1, ACCORDING TO THE SAMMIS REPORT, OCCURS WHEN A NEW TYPE
OF CONTAINER IS FIRST INTRODUCED BY A SECONDARY BRAND.  THUS "A NEW
CONTAINER CAN BECOME A POTENT SALES FORCE FOR A BRAND, IF STRONG
CONSUMER PREFERENCE EXISTS (OR IS PROMOTED) FOR THAT TYPE OF
CONTAINER.  RECOGNIZING THIS, SECONDARY BRANDS ARE CONSTANTLY TRYING
OUT NEW TYPES OF CONTAINERS AS SALES INCENTIVE.  WHILE LEADING BRANDS
ARE ORDINARILY SATISFIED TO MAINTAIN THE STATUS QUO, SECONDARY BRANDS
ARE WILLING TO GAMBLE TO IMPROVE THEIR POSITIONS." 

2.  THE SECOND STAGE COMES ABOUT IN THIS MANNER:  "IF A SECONDARY
BRAND INCREASES ITS SALES DURING THE PERIOD WHEN IT IS INTRODUCING A
NEW TYPE OF CONTAINER, THE SALES INCREASE IS USUALLY ATTRIBUTED TO THE
NEW CONTAINER, BY MARKETER AND COMPETITORS ALIKE.  ADVERTISING, PRODUCT
CHANGES OR OTHER FACTORS MAY ACTUALLY BE MORE IMPORTANT THAN THE NEW
CONTAINER, BUT CIRCUMSTANTIAL EVIDENCE POINTS TO THE CONTAINER. 

"LEADING BRANDS ARE NOT PRONE TO SIT IDLY BY WHILE COMPETITORS CUT
INTO THEIR SHARE OF THE MARKET.   THEY TEND TO COVER COMPETITORS' BETS
BY OFFERING BOTH TRADITIONAL AND NEW TYPES OF CONTAINERS TO THEIR
CUSTOMERS.  THIS CREATES STAGE 2 OF CONTAINER COMPETITION." 

3.  "WHEN LEADING BRANDS ARE AVAILABLE IN A CHOICE OF CONTAINERS,
CONSUMERS' CONTAINER PREFERENCE IS NO LONGER IN CONFLICT WITH THEIR
BRAND PREFERENCES.  THEY CAN HAVE THE BRAND THEY WANT IN THE CONTAINER
THEY WANT.  SALES OF LEADING BRANDS UNDER THESE CIRCUMSTANCES SEEK THE
LEVEL OF CONSUMER PREFERENCE FOR EACH TYPE OF CONTAINER. 

"IF PREFERENCE FOR ONE TYPE OF CONTAINER GREATLY EXCEEDS PREFERENCE
FOR THE OTHER TYPE, THE PRODUCTS THEN TEND EVENTUALLY TO STANDARDIZE
ONCE AGAIN ON A SINGLE TYPE OF CONTAINER - THE CONTAINER MOST CONSUMERS
PREFER.  THIS PROCESS IS SUBJECT TO PROMOTION OF CONTAINER BY BRAND
MARKETERS OR CONTAINER MANUFACTURERS.  THE ALTERNATE OUTCOME CAN BE
FAVORABLE TO EITHER THE NEW OR THE TRADITIONAL CONTAINER." 

FN8  THE CHAIRMAN OF THE BOARD OF OWENS-ILLINOIS GLASS CO. TESTIFIED
THAT HE TAKES INTO ACCOUNT THE PRICE OF METAL CONTAINERS IN PRICING
GLASS CONTAINERS FOR BEER, SOFT DRINKS, AND HOUSEHOLD AND CHEMICAL
PRODUCTS, AND TO A LESSER DEGREE FOR TOILETRIES AND COSMETICS.  IN
ASSESSING THE LIKELIHOOD THAT IT COULD "PENETRATE THE TREMENDOUS
MARKET" FOR SOFT DRINK CONTAINERS CONTINENTAL CONCLUDED "ASSUMING THAT
THE MERCHANDISING FACTORS ARE FAVORABLE AND THAT THE PRODUCT QUALITY IS
WELL RECEIVED, THE UPPER LIMIT ON MARKET ACCEPTANCE WILL THEN BE
DETERMINED BY PRICE."  CONTINENTAL ALSO STATED IN AN INTERCOMPANY
MEMORANDUM THAT IN THE FIGHT BETWEEN THE BEER CAN AND THE ONE-WAY
BOTTLE "THE KEY FACTOR, IN OUR ESTIMATION, IS PRICING," AND CONCLUDED
THAT A REDUCTION IN THE PRICE OF ONE-WAY BEER BOTTLES WAS TO "BE
REGARDED AS A FURTHER ATTEMPT ON THE PART OF THE GLASS MANUFACTURERS TO
MAINTAIN THEIR POSITION IN THE ONE-WAY PACKAGE FIELD." 

FN9  AN OFFICIAL OF THE GLASS CONTAINER MANUFACTURERS INSTITUTE
DESCRIBED THAT ORGANIZATION'S ADVERTISING PROGRAM AS THREE-PRONGED,
DIRECTED AT THE PACKER, THE RETAILER, AND THE ULTIMATE CONSUMER. 

FN10  DETERMINATION OF MARKET SHARES IS MADE SOMEWHAT MORE DIFFICULT
IN THIS CASE THAN IN THE ORDINARY INTRAINDUSTRY MERGER BECAUSE THE
INDICES OF TOTAL PRODUCTION OF THE TWO INDUSTRIES ARE EXPRESSED
DIFFERENTLY, THE METAL CONTAINER INDUSTRY REPORTING TO THE CENSUS
BUREAU IN TERMS OF TINPLATE CONSUMED IN MANUFACTURE, AND THE GLASS
CONTAINER INDUSTRY IN TERMS OF UNITS OF CONTAINERS.  ON THE BASIS OF
FIGURES AND DATA SUPPLIED BY THE CENSUS BUREAU AND THE CAN
MANUFACTURERS INSTITUTE THE GOVERNMENT HAS DERIVED A CONVERSION FACTOR
SHOWING THE RELATIONSHIP BETWEEN TINPLATE CONSUMPTION AND TOTAL
CONTAINERS MANUFACTURED, THEREBY PERMITTING A COMPARISON OF THE
RELATIVE POSITIONS OF THE FIRMS COMPETING WITHIN THE GLASS AND METAL
CONTAINER LINE OF COMMERCE.  IT WOULD APPEAR THAT THE DISTRICT COURT
RELIED ON FIGURES DISCLOSED BY APPLICATION OF THIS FACTOR, SINCE IT
FOUND THAT AMERICAN AND CONTINENTAL SHIPPED APPROXIMATELY 38% AND 33%,
RESPECTIVELY, OF THE METAL CANS SOLD IN THE UNITED STATES.  217 F.
SUPP., AT 773. 

CONTINENTAL OBJECTS TO THE USE OF THIS CONVERSION SCHEME, HOWEVER,
ARGUING THAT IT IGNORES SUCH CONSIDERATIONS AS SIZE OF CANS AND THE
RETURNABLE FEATURE OF SOME TYPES OF BOTTLES.  WE ARE NOT PERSUADED. 
SINCE DIFFERENT SYSTEMS OF STATISTICAL NOTATION ARE EMPLOYED BY THESE
INDUSTRIES, A COMMON REFERENTIAL STANDARD IS AN ABSOLUTE PREREQUISITE
TO A COMPARISON OF MARKET SHARES.  CONSISTENT WITH THIS COURT'S
DECLARATIONS IN OTHER CASES CONCERNING THE HIGH DEGREE OF RELEVANCE OF
MARKET SHARES TO THE EFFECT OF MERGERS ON COMPETITION, WE BELIEVE THAT
SLIGHT VARIATIONS ONE WAY OR THE OTHER WHICH MAY INHERE IN THE USE OF A
CONVERSION FORMULA SHOULD NOT BLIND US TO THE BROAD SIGNIFICANCE OF THE
RESULTING PERCENTAGES.  IN THE COMPILATION OF STATISTICS "PRECISION IN
DETAIL IS LESS IMPORTANT THAN THE ACCURACY OF THE BROAD PICTURE
PRESENTED."  BROWN SHOE CO. V. UNITED STATES, 370 U.S., AT 342, N. 69. 

FN11  THE SIX LARGEST FIRMS, AND THEIR RESPECTIVE PERCENTAGES OF THE
RELEVANT MARKET AS OF THE YEAR PRIOR TO THE MERGER ARE: 

AMERICAN CAN CO. 26.8% 

CONTINENTAL CAN CO.                   21.9% 

OWENS-ILLINOIS GLASS CO.              11.2% 

ANCHOR-HOCKING GLASS CO.               3.8% 

NATIONAL CAN CO.     3.3% 

HAZEL-ATLAS GLASS CO.                  3.1% 

TOTAL                                  70.1% 

MR. JUSTICE GOLDBERG, CONCURRING. 

I FULLY AGREE WITH THE COURT THAT "SINCE THE PURPOSE OF DELINEATING A
LINE OF COMMERCE IS TO PROVIDE AN ADEQUATE BASIS FOR MEASURING THE
EFFECTS OF A GIVEN ACQUISITION, ITS CONTOURS MUST, AS NEARLY AS
POSSIBLE, CONFORM TO COMPETITIVE REALITY."  ANTE, AT P. 457.  I ALSO
AGREE THAT "ON THE EVIDENCE THUS FAR REVEALED BY THIS RECORD," THERE
HAS BEEN A PRIMA FACIE SHOWING "THAT THE INTERINDUSTRY COMPETITION
BETWEEN GLASS AND METAL CONTAINERS  ...  WARRANTS TREATING AS A
RELEVANT PRODUCT MARKET THE COMBINED GLASS AND METAL CONTAINER
INDUSTRIES AND ALL END USES FOR WHICH THEY COMPETE."  IBID.  I WISH TO
MAKE IT CLEAR, HOWEVER, THAT, AS I READ THE OPINION OF THE COURT, THE
COURT DOES NOT PURPORT FINALLY TO DECIDE THE DETERMINATIVE LINE OF
COMMERCE.  SINCE THE DISTRICT COURT "DISMISSED THE COMPLAINT AT THE
CLOSE OF THE GOVERNMENT'S CASE," ANTE, AT P. 444, UPON REMAND IT WILL
BE OPEN TO THE DEFENDANTS NOT ONLY TO REBUT THE PRIMA FACIE INFERENCE
THAT METAL AND GLASS CONTAINERS MAY BE CONSIDERED TOGETHER AS A LINE OF
COMMERCE BUT ALSO TO PROVE THAT PLASTIC OR OTHER CONTAINERS IN FACT
COMPETE WITH METAL AND GLASS TO SUCH AN EXTENT THAT AS A MATTER OF
"COMPETITIVE REALITY" THEY MUST BE CONSIDERED AS PART OF THE
DETERMINATIVE LINE OF COMMERCE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

MEASURED BY ANY ANTITRUST YARDSTICKS WITH WHICH I AM FAMILIAR, THE
COURT'S CONCLUSIONS ARE, TO SAY THE LEAST, REMARKABLE.  BEFORE THE
MERGER WHICH IS THE SUBJECT OF THIS CASE, CONTINENTAL CAN MANUFACTURED
METAL CONTAINERS AND HAZEL-ATLAS MANUFACTURED GLASS CONTAINERS.  (FN1)
THE DISTRICT COURT FOUND, WITH AMPLE SUPPORT IN THE RECORD, THAT THE
GOVERNMENT HAD WHOLLY FAILED TO PROVE THAT THE MERGER OF THESE TWO
COMPANIES WOULD ADVERSELY AFFECT COMPETITION IN THE METAL CONTAINER
INDUSTRY, IN THE GLASS CONTAINER INDUSTRY, OR BETWEEN THE METAL
CONTAINER INDUSTRY AND THE GLASS CONTAINER INDUSTRY.  YET THIS COURT
MANAGES TO STRIKE DOWN THE MERGER UNDER SEC. 7 OF THE CLAYTON ACT,
BECAUSE, IN THE COURT'S VIEW, IT IS ANTICOMPETITIVE.  (FN2)  WITH ALL
RESPECT, THE COURT'S CONCLUSION IS BASED ON ERRONEOUS ANALYSIS, WHICH
MAKES AN ABRUPT AND UNWISE DEPARTURE FROM ESTABLISHED ANTITRUST LAW. 

I AGREE FULLY WITH THE COURT THAT "WE MUST RECOGNIZE MEANINGFUL
COMPETITION WHERE IT IS FOUND," ANTE, P. 449, AND THAT "INTER-INDUSTRY"
COMPETITION, SUCH AS THAT INVOLVED IN THIS CASE, NO LESS THAN "INTRA
INDUSTRY" COMPETITION IS PROTECTED BY SEC. 7 FROM ANTICOMPETITIVE
MERGERS.  AS THIS COURT HAS, IN EFFECT, RECOGNIZED IN PAST CASES, THE
CONCEPT OF AN "INDUSTRY," OR "LINE OF COMMERCE," IS NOT SUSCEPTIBLE OF
REDUCTION TO A PRECISE FORMULA.  SEE BROWN SHOE CO., INC., V. UNITED
STATES, 370 U.S. 294, 325; UNITED STATES V. E.I. DU PONT DE NEMOURS &
CO., 351 U.S. 377, 394-396; TIMES-PICAYUNE PUBLISHING CO. V. UNITED
STATES, 345 U.S. 594, 611.  IT WOULD, THEREFORE, BE ARTIFICIAL AND
INCONSISTENT WITH THE BROAD PROTECTIVE PURPOSE OF SEC. 7, SEE BROWN
SHOE, SUPRA, AT 311-323, TO ATTEMPT TO DIFFERENTIATE BETWEEN PERMITTED
AND PROHIBITED MERGERS MERELY BY ASKING WHETHER A PROBABLE REDUCTION IN
COMPETITION, IF IT IS FOUND, WILL BE WITHIN A SINGLE "INDUSTRY" OR
BETWEEN TWO OR MORE "INDUSTRIES." 

RECOGNITION THAT THE PURPOSE OF SEC. 7 IS NOT TO BE THWARTED BY
LIMITING ITS PROTECTION TO INTRAMURAL COMPETITION WITHIN STRICTLY
DEFINED "INDUSTRIES," DOES NOT MEAN, HOWEVER, THAT THE CONCEPT OF A
"LINE OF COMMERCE" IS NO LONGER SERVICEABLE.  MORE PRECISELY, IT DOES
NOT, AS THE MAJORITY SEEMS TO THINK, ENTAIL THE CONCLUSION THAT
WHEREVER "MEANINGFUL COMPETITION" EXISTS, A "LINE OF COMMERCE" IS TO BE
FOUND.  THE COURT DECLARES THE INITIAL QUESTION OF THIS CASE TO BE
"WHETHER THE ADMITTED COMPETITION BETWEEN METAL AND GLASS CONTAINERS
FOR USES OTHER THAN PACKAGING BEER WAS OF THE TYPE AND QUALITY
DESERVING OF SEC. 7 PROTECTION AND THEREFORE THE BASIS FOR DEFINING A
RELEVANT PRODUCT MARKET."  ANTE, P. 449.  AND THE COURT'S ANSWER IS
SIMILARLY PHRASED:  "  ...  WE HOLD THAT THE INTERINDUSTRY COMPETITION
BETWEEN GLASS AND METAL CONTAINERS IS SUFFICIENT TO WARRANT TREATING AS
A RELEVANT PRODUCT MARKET THE COMBINED GLASS AND METAL CONTAINER
INDUSTRIES AND ALL END USES FOR WHICH THEY COMPETE."  ANTE, P. 457. 
QUITE OBVIOUSLY, SUCH A CONCLUSION SIMPLY READS THE "LINE OF COMMERCE"
ELEMENT OUT OF SEC. 7, AND DESTROYS ITS USEFULNESS AS AN AID TO
ANALYSIS. 

THE DISTORTIONS TO WHICH THIS APPROACH LEADS ARE EVIDENCED BY THE
COURT'S APPLICATION OF IT IN THIS CASE.  HAVING FOUND THAT THERE IS
"INTERINDUSTRY COMPETITION BETWEEN GLASS AND METAL CONTAINERS" THE
COURT CONCLUDES THAT "THE COMBINED GLASS AND METAL CONTAINER
INDUSTRIES" IS THE RELEVANT LINE OF COMMERCE OR "PRODUCT MARKET" IN
WHICH ANTICOMPETITIVE EFFECTS MUST BE MEASURED.  ANTE, P. 457. 
APPLYING THAT PREMISE, THE COURT THEN NOTES CONTINENTAL'S "DOMINANT
POSITION" IN THE METAL CAN INDUSTRY, ANTE, P. 458, AND FINDS THAT
CONTINENTAL HAS A "MAJOR POSITION" IN THE "RELEVANT PRODUCT MARKET -
THE COMBINED METAL AND GLASS CONTAINER INDUSTRIES," ANTE, P. 459. 
HAZEL-ATLAS, BEING THE THIRD LARGEST PRODUCER OF GLASS CONTAINERS, IS
FOUND TO RANK SIXTH IN THE RELEVANT PRODUCT MARKET - AGAIN, THE
COMBINED METAL AND GLASS CONTAINER INDUSTRIES.  ANTE, P. 460.  THIS
"EVIDENCE," COUPLED WITH THE MARKET SHARES OF CONTINENTAL AND HAZEL
ATLAS IN THE COMBINED PRODUCT MARKET, (FN3) LEADS THE COURT TO CONCLUDE
THAT THE MERGER VIOLATES SEC. 7. 

"THE RESULTING PERCENTAGE OF THE COMBINED FIRMS," THE COURT SAYS,
"APPROACHES THAT HELD PRESUMPTIVELY BAD IN UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321."  ANTE, P. 461.  THE
PHILADELPHIA BANK CASE, WHICH INVOLVED THE MERGER OF TWO BANKS PLAINLY
ENGAGED IN THE SAME LINE OF COMMERCE, (FN4) IS, HOWEVER, ENTIRELY
DISTINCT FROM THE PRESENT SITUATION, WHICH INVOLVES TWO SEPARATE
INDUSTRIES.  THE BIZARRE RESULT OF THE COURT'S APPROACH IS THAT MARKET
PERCENTAGES OF A NONEXISTENT MARKET ENABLE THE COURT TO DISPENSE WITH
"ELABORATE PROOF OF MARKET STRUCTURE, MARKET BEHAVIOR AND PROBABLE
ANTICOMPETITIVE EFFECTS," ANTE, P. 458.  AS I SHALL SHOW, THE COURT HAS
"DISPENSED WITH" PROOF WHICH, GIVEN HEED, SHOWS HOW COMPLETELY FANCIFUL
ITS MARKET-SHARE ANALYSIS IS. 

IN FAIRNESS TO THE DISTRICT COURT IT SHOULD BE SAID THAT IT DID NOT
ERR IN FAILING TO CONSIDER THE "LINE OF COMMERCE" ON WHICH THIS COURT
NOW RELIES.  FOR THE GOVERNMENT DID NOT EVEN SUGGEST THAT SUCH A LINE
OF COMMERCE EXISTED UNTIL IT GOT TO THIS COURT.  (FN5)  AND IT DOES NOT
SERIOUSLY SUGGEST EVEN NOW THAT SUCH A LINE OF COMMERCE EXISTS.  (FN6)
THE TRUTH IS THAT "GLASS AND METAL CONTAINERS" FORM A DISTINCT LINE OF
COMMERCE ONLY IN THE MIND OF THIS COURT. 

THE DISTRICT COURT FOUND, AND THIS COURT ACCEPTS THE FINDING, THAT
THIS CASE "DEALS WITH THREE SEPARATE AND DISTINCT INDUSTRIES
MANUFACTURING SEPARATE AND DISTINCT TYPES OF PRODUCTS":  METAL, GLASS,
AND PLASTIC CONTAINERS.  217 F. SUPP., AT 780. 

"CONCEDEDLY THERE WAS SUBSTANTIAL AND VIGOROUS INTER-INDUSTRY
COMPETITION BETWEEN THESE THREE INDUSTRIES AND BETWEEN VARIOUS OF THE
PRODUCTS WHICH THEY MANUFACTURED.  METAL CAN, GLASS CONTAINER AND
PLASTIC CONTAINER MANUFACTURERS WERE EACH SEEKING TO ENLARGE THEIR
SALES TO THE THOUSANDS OF PACKERS OF HUNDREDS OF VARIETIES OF FOOD,
CHEMICAL, TOILETRY AND INDUSTRIAL PRODUCTS, RANGING FROM RIPE OLIVES TO
FRUIT JUICES TO TUNA FISH TO SMOKED TONGUE; FROM MAPLE SYRUP TO PET
FOOD TO COFFEE; FROM EMBALMING FLUID TO FLOOR WAX TO NAIL POLISH TO
ASPIRIN TO VETERINARY SUPPLIES, TO TAKE EXAMPLES AT RANDOM.    "EACH
INDUSTRY AND EACH OF THE MANUFACTURERS WITHIN IT WAS SEEKING TO IMPROVE
THEIR PRODUCTS SO THAT THEY WOULD APPEAL TO NEW CUSTOMERS OR HOLD OLD
ONES.  HAZEL-ATLAS AND CONTINENTAL WERE PART OF THIS OVERALL INDUSTRIAL
PATTERN, EACH IN A RECOGNIZED SEPARATE INDUSTRY PRODUCING DISTINCT
PRODUCTS BUT ENGAGED IN INTER-INDUSTRY COMPETITION FOR THE FAVOR OF
VARIOUS END USERS OF THEIR PRODUCTS."  217 F. SUPP., AT 780-781. 
ONLY THIS COURT WILL NOT BE "CONCERNED," ANTE, P. 457, THAT WITHOUT
SUPPORT IN REASON OR FACT, IT DIPS INTO THIS NETWORK OF COMPETITION AND
ESTABLISHES METAL AND GLASS CONTAINERS AS A SEPARATE "LINE OF
COMMERCE," LEAVING ENTIRELY OUT OF ACCOUNT ALL OTHER KINDS OF
CONTAINERS:  "PLASTIC, PAPER, FOIL AND ANY OTHER MATERIALS COMPETING
FOR THE SAME BUSINESS," IBID.  (FN7)  BROWN SHOE, SUPRA, ON WHICH THE
COURT RELIES FOR THIS TRAVESTY OF ECONOMICS, ANTE, P. 458, SPOKE OF
"WELL-DEFINED SUBMARKETS" WITHIN A BROADER MARKET, AND SAID THAT "THE
BOUNDARIES OF SUCH A SUBMARKET" WERE TO BE DETERMINED BY "PRACTICAL
INDICIA," 370 U.S., AT 325.  (FN8)  SINCE THE COURT HERE PROVIDES ITS
OWN DEFINITION OF A MARKET, UNRELATED TO ANY MARKET REALITY WHATSOEVER,
BROWN SHOE MUST IN THIS CASE BE REGARDED AS A BOOTSTRAP. 

THE COURT IS QUITE WRONG WHEN IT SAYS THAT THE DISTRICT COURT
"EMPLOYED AN UNDULY NARROW CONSTRUCTION OF THE 'COMPETITION' PROTECTED
BY SEC. 7" AND THAT IT HELD THAT "THE COMPETITION PROTECTED BY SEC. 7
IS LIMITED TO COMPETITION BETWEEN IDENTICAL PRODUCTS," ANTE, P. 452. 
QUITE TO THE CONTRARY, THE DISTRICT COURT EXPRESSLY STATED THAT
"SECTION 7 IS APPLICABLE TO CONGLOMERATE MERGERS WHERE THE FACTS
WARRANT," 217 F. SUPP., AT 783 (FOOTNOTE OMITTED).  (FN9)  THE
DIFFERENCE BETWEEN THE DISTRICT COURT AND THIS COURT LIES RATHER IN THE
DISTRICT COURT'S NEXT SENTENCE:  "BUT THERE MUST BE EVIDENCE THAT THE
FACTS WARRANT SUCH APPLICATION."  IBID. 

IF ATTENTION IS PAID TO THE CONCLUSIONS OF THE COURT BELOW, IT IS
OBVIOUS THAT THIS COURT'S ANALYSIS HAS LED IT TO SUBSTITUTE A
MEANINGLESS FIGURE - THE MERGED COMPANIES' SHARE OF A NONEXISTENT
"MARKET" - FOR THE SOUND, CAREFUL FACTUAL FINDINGS OF THE DISTRICT
COURT. 

THE DISTRICT COURT FOUND:  (FN10) 

(1)  WITH RESPECT TO THE MERGER'S EFFECT ON COMPETITION WITHIN THE
METAL CONTAINER INDUSTRY, THAT "PRIOR TO ITS ACQUISITION HAZEL-ATLAS
DID NOT MANUFACTURE OR SELL METAL CANS  ...  ."  217 F. SUPP., AT 770. 

(2)  WITH RESPECT TO THE MERGER'S EFFECT ON COMPETITION WITHIN THE
GLASS CONTAINER INDUSTRY, THAT "CONTINENTAL DID NOT, DIRECTLY OR
THROUGH SUBSIDIARIES, MANUFACTURE OR SELL GLASS CONTAINERS  ... ."
IBID. 

(3)  WITH RESPECT TO THE MERGER'S EFFECT ON THE METAL CONTAINER
INDUSTRY'S EFFORTS TO COMPETE WITH THE GLASS CONTAINER INDUSTRY: 

"THE GOVERNMENT FARED NO BETTER ON ITS CLAIM THAT AS A RESULT OF THE
MERGER CONTINENTAL WAS LIKELY TO LOSE THE INCENTIVE TO PUSH CAN SALES
AT THE EXPENSE OF GLASS.  THE GOVERNMENT INTRODUCED NO EVIDENCE SHOWING
EITHER THAT THERE HAD BEEN OR WAS LIKELY TO BE ANY SLACKENING OF EFFORT
TO PUSH CAN SALES.  ON THE CONTRARY, AS HAS BEEN POINTED OUT, THE
OBJECT OF THE MERGER WAS DIVERSIFICATION, AND CONTINENTAL WAS ACTIVELY
PROMOTING INTRA-COMPANY COMPETITION BETWEEN ITS VARIOUS PRODUCT LINES. 
SINCE BY FAR THE LARGEST PROPORTION OF CONTINENTAL'S BUSINESS WAS IN
METAL CANS, IT SCARCELY SEEMED LIKELY THAT CANS WOULD SUFFER AT THE
EXPENSE OF GLASS. 

"MOREOVER, SUBSEQUENT TO THE MERGER CONTINENTAL ACTIVELY ENGAGED IN A
VIGOROUS RESEARCH AND PROMOTION PROGRAM IN BOTH ITS METAL AND GLASS
CONTAINER LINES.  IN THE LIGHT OF THE RECORD AND OF THE COMPETITIVE
REALITIES, THE NOTION THAT IT WAS LIKELY TO CEASE BEING AN INNOVATOR IN
EITHER LINE IS PATENTLY ABSURD."  217 F. SUPP., AT 790 (FOOTNOTE
OMITTED). 

(4)  WITH RESPECT TO THE MERGER'S EFFECT ON THE GLASS CONTAINER
INDUSTRY'S EFFORTS TO COMPETE WITH THE METAL CONTAINER INDUSTRY: 

"IN ADDITION THE GOVERNMENT ADVANCED THE CONVERSE OF THE PROPOSITION
WHICH IT URGED WITH RESPECT TO THE METAL CAN LINE - THAT AS A RESULT OF
THE MERGER CONTINENTAL WAS LIKELY TO LOSE THE INCENTIVE TO PUSH GLASS
CONTAINER SALES AT THE EXPENSE OF CANS.  IN VIEW OF WHAT HAS BEEN SAID
CONCERNING THE PURPOSE OF CONTINENTAL'S DIVERSIFICATION PROGRAM AND THE
COURSE IT PURSUED AFTER THE MERGER, IT IS NO MORE LIKELY THAT
CONTINENTAL WOULD SLACKEN ITS EFFORTS TO PROMOTE GLASS THAN THAT IT
WOULD SLACKEN ITS EFFORTS TO PROMOTE CANS.  INDEED, IF IT HAD PLANNED
TO DO SO THERE WOULD HAVE BEEN LITTLE, IF ANY, POINT TO ACQUIRING HAZEL
ATLAS, A MAJOR GLASS CONTAINER PRODUCER."  217 F. SUPP., AT 793. 

IT IS CLEAR FROM THE FOREGOING THAT THE DISTRICT COURT FULLY
CONSIDERED THE POSSIBILITY THAT A MERGER OF LEADING PRODUCERS IN TWO
INDUSTRIES BETWEEN WHICH THERE WAS COMPETITION WOULD DAMPEN THE INTER
INDUSTRY RIVALRY.  THE BASIS OF THE DECISION BELOW WAS NOT, THEREFORE,
AN ERRONEOUS BELIEF THAT SEC. 7 DID NOT REACH SUCH COMPETITION BUT A
CAREFUL STUDY OF THE GOVERNMENT'S PROOF, WHICH LED TO THE CONCLUSION
THAT "IN THE LIGHT OF THE RECORD AND OF THE COMPETITIVE REALITIES, THE
NOTION THAT  ...  THE MERGED COMPANY WAS LIKELY TO CEASE BEING AN
INNOVATOR IN EITHER LINE IS PATENTLY ABSURD." 

SURELY THIS FAILURE OF THE COURT'S MOCK-STATISTICAL ANALYSIS TO
REFLECT THE FACTS AS FOUND ON THE RECORD DEMONSTRATES WHAT THE
GOVERNMENT CONCEDES, (FN11) AND WHAT ONE WOULD IN ANY EVENT HAVE
THOUGHT TO BE OBVIOUS:  WHEN A MERGER IS ATTACKED ON THE GROUND THAT
COMPETITION BETWEEN TWO DISTINCT INDUSTRIES, OR LINES OF COMMERCE, WILL
BE AFFECTED, THE SHORTCUT "MARKET SHARE" APPROACH DEVELOPED IN THE
PHILADELPHIA BANK CASE, SEE 374 U.S., AT 362-365; ANTE, P. 458, HAS NO
PLACE.  IN SUCH A CASE, THE LEGALITY OF THE MERGER MUST SURELY DEPEND,
AS IT DID BELOW, ON AN INQUIRY INTO COMPETITIVE EFFECTS IN THE ACTUAL
LINES OF COMMERCE WHICH ARE INVOLVED.  IN THIS CASE, THE RESULT DEPENDS
- OR SHOULD DEPEND - ON THE IMPACT OF THE MERGER IN THE TWO LINES OF
COMMERCE HERE INVOLVED:  THE METAL CONTAINER INDUSTRY AND THE GLASS
CONTAINER INDUSTRY.  (FN12)  AS THE FINDINGS OF THE DISTRICT COURT
WHICH ARE QUOTED ABOVE MAKE PLAIN, REFERENCE TO THESE TWO ACTUAL LINES
OF COMMERCE DOES NOT PRECLUDE PROTECTION OF INTER-INDUSTRY
COMPETITION.  INDEED, BY PLACING THE MERGED COMPANY IN THE SETTING OF
OTHER COMPANIES IN EACH OF THE RESPECTIVE LINES OF COMMERCE WHICH ARE
ALSO ENGAGED IN INTER-INDUSTRY COMPETITION, THIS APPROACH IS FAR MORE
LIKELY THAN THE COURT'S TO GIVE SEC. 7 FULL, BUT NOT ARTIFICIAL,
SCOPE. 

THE COURT'S SPURIOUS MARKET-SHARE ANALYSIS SHOULD NOT OBSCURE THE
FACT THAT THE COURT IS, IN EFFECT, LAYING DOWN A "PER SE" RULE THAT
MERGERS BETWEEN TWO LARGE COMPANIES IN RELATED INDUSTRIES ARE
PRESUMPTIVELY UNLAWFUL UNDER SEC. 7.  HAD THE COURT BASED THIS NEW RULE
ON A CONCLUSION THAT SUCH MERGERS ARE INHERENTLY LIKELY TO DAMPEN INTER
INDUSTRY COMPETITION OR THAT SO FEW MERGERS OF THIS KIND WOULD FAIL TO
HAVE THAT EFFECT THAT A "PER SE" RULE IS JUSTIFIED, I COULD AT LEAST
UNDERSTAND THE THOUGHT PROCESS WHICH LAY BEHIND ITS DECISION.  IT
WOULD, OF COURSE, BE INAPPROPRIATE TO PRESCRIBE PER SE RULES IN THE
FIRST CASE TO PRESENT A PROBLEM, CF. WHITE MOTOR CO. V. UNITED STATES,
372 U.S. 253, LET ALONE A CASE IN WHICH THE FACTS SUGGEST THAT A PER SE
RULE IS UNSOUND.  AND TO LAY DOWN A RULE ON EITHER OF THE BASES
SUGGESTED WOULD REQUIRE A MUCH MORE CAREFUL LOOK AT THE NATURE OF
COMPETITION BETWEEN INDUSTRIES THAN THE COURT'S CASUAL GLANCE IN THAT
DIRECTION. 

IN ANY EVENT, THE COURT DOES NOT TAKE THIS TACK.  IT CHOOSES INSTEAD
TO INVENT A LINE OF COMMERCE THE EXISTENCE OF WHICH NO ONE, NOT EVEN
THE GOVERNMENT, HAS IMAGINED; FOR WHICH BUSINESSMEN AND ECONOMISTS WILL
LOOK IN VAIN; A LINE OF COMMERCE WHICH SPRANG INTO EXISTENCE ONLY WHEN
THE MERGER TOOK PLACE AND WILL CEASE TO EXIST WHEN THE MERGER IS
UNDONE.  I HAVE NO IDEA WHERE SEC. 7 GOES FROM HERE, NOR WILL
BUSINESSMEN OR THE ANTITRUST BAR.  HITHERTO, IT HAS BEEN THOUGHT THAT
THE VALIDITY OF A MERGER WAS TO BE TESTED BY EXAMINING ITS EFFECT IN
IDENTIFIABLE, "WELL-DEFINED" (BROWN SHOE, SUPRA, AT 325) MARKETS. 
HEREAFTER, HOWEVER SLIGHT (OR EVEN NONEXISTENT) THE COMPETITIVE IMPACT
OF A MERGER ON ANY ACTUAL MARKET, BUSINESSMEN MUST REST UNEASY LEST THE
COURT CREATE SOME "MARKET," IN WHICH THE MERGER PRESUMPTIVELY DAMPENS
COMPETITION, OUT OF BITS AND PIECES OF REAL ONES.  NO ONE COULD SAY
THAT SUCH A FEAR IS UNFOUNDED, SINCE THE COURT'S CREATIVE POWERS IN
THIS RESPECT ARE DECLARED TO BE AS EXTENSIVE AS THE COMPETITIVE
RELATIONSHIPS BETWEEN INDUSTRIES.  THIS IS SAID TO BE RECOGNIZING
"MEANINGFUL COMPETITION WHERE IT IS FOUND TO EXIST."  IT IS IN FACT
IMAGINING EFFECTS ON COMPETITION WHERE NONE HAS BEEN SHOWN. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

FN1  BOTH COMPANIES MANUFACTURED OTHER RELATED PRODUCTS WHICH FOR
PRESENT PURPOSES MAY BE DISREGARDED.  SEE THE DESCRIPTION OF THE TWO
COMPANIES IN THE OPINION OF THE DISTRICT COURT, 217 F. SUPP. 761, 769
770. 

FN2  SECTION 7 OF THE CLAYTON ACT, AS AMENDED BY THE ACT OF DECEMBER
29, 1950, 64 STAT.  1125, 15 U.S.C. SEC. 18, PROVIDES IN PERTINENT
PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

FN3  THE COURT CONFESSES TO SOME DIFFICULTY IN DETERMINING MARKET
SHARES.  SEE ANTE, PP. 459-460, N. 10. 

FN4  "WE HAVE NO DIFFICULTY IN DETERMINING THE 'LINE OF COMMERCE'
(RELEVANT PRODUCT OR SERVICES MARKET)  ...  IN WHICH TO APPRAISE THE
PROBABLE COMPETITIVE EFFECTS OF APPELLEES' PROPOSED MERGER.  WE AGREE
WITH THE DISTRICT COURT THAT THE CLUSTER OF PRODUCTS (VARIOUS KINDS OF
CREDIT) AND SERVICES (SUCH AS CHECKING ACCOUNTS AND TRUST
ADMINISTRATION) DENOTED BY THE TERM 'COMMERCIAL BANKING'  ... COMPOSES
A DISTINCT LINE OF COMMERCE  ...  .  IN SUM, IT IS CLEAR THAT
COMMERCIAL BANKING IS A MARKET 'SUFFICIENTLY INCLUSIVE TO BE MEANINGFUL
IN TERMS OF TRADE REALITIES.'  CROWN ZELLERBACH CORP. V. FEDERAL TRADE
COMM'N, 296 F.2D 800, 8 1 (C.A. 9TH CIR. 1961)."  374 U.S., AT 356
357. 

FN5  IN THE DISTRICT COURT, THE GOVERNMENT RELIED ON 10 "LINES OF
COMMERCE."  IN ADDITION TO "THE PACKAGING INDUSTRY," "THE CAN
INDUSTRY," "THE GLASS CONTAINER INDUSTRY," AND "METAL CLOSURES" (NOT
RELEVANT HERE), THE GOVERNMENT ARGUED THAT THERE WERE SIX LINES OF
COMMERCE" WHICH WERE DEFINED BY THE END PRODUCT FOR WHICH THE
CONTAINERS WERE USED, E.G., "CONTAINERS FOR THE BEER INDUSTRY."  SEE
217 F. SUPP., AT 778-779. 

FN6  ALTHOUGH THE GOVERNMENT MAKES THE SUGGESTION, WHICH THE COURT
NOW ACCEPTS, THAT WHEREVER THERE IS COMPETITION THERE IS A "LINE OF
COMMERCE," SO THAT "THE 'LINE OF COMMERCE' WITHIN WHICH THE MERGER'S
EFFECT ON COMPETITION SHOULD BE APPRAISED IS THE PRODUCTION AND SALE OF
CONTAINERS USED FOR ALL PURPOSES FOR WHICH METAL OR GLASS CONTAINERS
MAY BE USED  ...  " (BRIEF, P. 18), IT CONCEDES THE ARTIFICIALITY OF
THIS APPROACH AND, IN SO DOING, ITSELF REJECTS THE MARKET-SHARE
ANALYSIS ADOPTED BY THE COURT.  THE GOVERNMENT STATES THAT ITS
SUGGESTED TEST OF ILLEGALITY OF A MERGER INVOLVING INTER-INDUSTRY
COMPETITION "OMITS ANALYSIS OF STATISTICS REGARDING MARKET SHARES
SIMPLY BECAUSE THOSE TRADITIONAL YARDSTICKS ARE GENERALLY UNAVAILABLE
TO MEASURE THE FULL CONSEQUENCES WHICH AN INTERINDSTRY MERGER WOULD
HAVE ON COMPETITION."  (BRIEF, P. 22.) 

THE TEST WHICH THE GOVERNMENT ADVOCATES IS THAT IT "CAN SATISFY ITS
BURDEN OF SHOWING THAT THE MERGER MAY HAVE THE EFFECT OF SUBSTANTIALLY
LESSENING COMPETITION BY PROVING (A) THE EXISTENCE OF SUBSTANTIAL
COMPETITION BETWEEN TWO INDUSTRIES; (B) A HIGH DEGREE OF CONCENTRATION
IN EITHER OR BOTH OF THE COMPETING INDUSTRIES; AND (C) THE DOMINANT
POSITIONS OF EACH OF THE MERGING COMPANIES IN ITS RESPECTIVE
INDUSTRY."  (BRIEF, P. 22.)  THIS APPROACH, WHICH HAS AT LEAST THE
VIRTUE OF FACING UP TO ITS OWN LOGIC, FRANKLY DISAVOWS ATTENTION TO A
"LINE OF COMMERCE."  THE EFFECT OF THE COURT'S APPROACH IS NOT MARKEDLY
DIFFERENT FROM THAT OF THE GOVERNMENT'S TEST, SEE INFRA, P. 476, AND
THERE IS SOME SUGGESTION IN THE LAST FEW PAGES OF THE COURT'S OPINION
THAT THE COURT APPRECIATES THIS.  AS DISCUSSED HEREAFTER, HOWEVER,
THERE IS NOTHING IN THE COURT'S OPINION TO SUPPORT ADOPTION OF THE
GOVERNMENT'S "PER SE" APPROACH, AND THE FACTS DEVELOPED IN THE DISTRICT
COURT DEMONSTRATE THAT, SO FAR AS ONE CAN TELL FROM THIS CASE AT LEAST,
A PER SE APPROACH TO THE PROBLEM OF INTER-INDUSTRY COMPETITION IS
WHOLLY INAPPROPRIATE. 

FN7  IF THE COMPETITION BETWEEN METAL AND GLASS CONTAINERS IS
SUFFICIENT TO CONSTITUTE THEM COLLECTIVELY A "LINE OF COMMERCE," WHY
DOES THEIR COMPETITION WITH PLASTIC CONTAINERS AND "OTHER MATERIALS
COMPETING FOR THE SAME BUSINESS" NOT REQUIRE THAT ALL SUCH CONTAINERS
BE INCLUDED IN THE SAME LINE OF COMMERCE?  THE COURT APPARENTLY
CONCEDES THAT THE COMPETITION IS MULTILATERAL. 

FN8  THE "PRACTICAL INDICIA" SPECIFIED BY THE COURT WERE:  "INDUSTRY
OR PUBLIC RECOGNITION OF THE SUBMARKET AS A SEPARATE ECONOMIC ENTITY,
THE PRODUCT'S PECULIAR CHARACTERISTICS AND USES, UNIQUE PRODUCTION
FACILITIES, DISTINCT CUSTOMERS, DISTINCT PRICES, SENSITIVITY TO PRICE
CHANGES, AND SPECIALIZED VENDORS."  370 U.S., AT 325 (FOOTNOTE
OMITTED).  WHILE MANY OF THESE FACTORS WEIGH AGAINST THE COURT'S
CONCLUSION THAT METAL AND GLASS CONTAINERS SHOULD BE COMBINED IN A
SINGLE LINE OF COMMERCE, NOT ONE OF THEM SPEAKS FOR THE COURT'S
CONCLUSION THAT THEY SHOULD BE SEGREGATED FROM ALL OTHER KINDS OF
CONTAINERS AND TOGETHER FORM A SEPARATE LINE OF COMMERCE.    FN9  THE
DISTRICT COURT OBSERVED ALSO THAT "RELEVANT MARKETS ARE NEITHER
ECONOMIC ABSTRACTIONS NOR ARTIFICIAL CONCEPTIONS."  217 F. SUPP., AT
768.  IN THIS RESPECT, IN VIEW OF THE MAJORITY'S PRESENT OPINION, THE
DISTRICT JUDGE MUST, I SUPPOSE, BE DEEMED TO HAVE ERRED. 

FN10  THIS SUMMARY OF THE DISTRICT COURT'S FINDINGS INCLUDES ONLY SO
MUCH AS IS RELEVANT TO THE MAJORITY'S OPINION.  THE DISTRICT COURT GAVE
DETAILED ATTENTION TO EACH OF THE GOVERNMENT'S CONTENTIONS, IN AN
OPINION OF 48 PAGES.  ITS CONCLUSIONS WERE SUMMARIZED IN THE FOLLOWING
STATEMENT:

"VIEWING THE EVIDENCE AS A WHOLE, QUITE APART FROM THEORY, THERE WAS A
TOTAL FAILURE BY THE GOVERNMENT TO ESTABLISH THE ESSENTIAL ELEMENTS OF
A VIOLATION OF SECTION 7.  AS WILL BE APPARENT FROM A DISCUSSION OF THE
PROOF RELATING TO EACH SPECIFIC LINE OF COMMERCE, THE GOVERNMENT DID
NOT LAY EITHER THE STATISTICAL OR TESTIMONIAL FOUNDATIONS REQUIRED TO
ESTABLISH ITS CASE.  IT WAS THIS FAILURE OF PROOF WHICH REQUIRED THE
DISMISSAL OF THE COMPLAINT AND ENTRY OF JUDGMENT FOR THE DEFENDANTS." 
217 F. SUPP., AT 787. 

FN11  SEE NOTE 6, SUPRA. 

FN12  THE GOVERNMENT URGED OTHER LINES OF COMMERCE BELOW, SEE NOTE 5,
SUPRA, BUT HAS ABANDONED ALL OF THEM HERE EXCEPT "CONTAINERS FOR THE
CANNING INDUSTRY," A LINE OF COMMERCE DEFINED BY END USE AND INCLUDING
"ALL METAL CANS AND GLASS CONTAINERS FOR THE END USES OF 'CANNING'
FOOD."  217 F. SUPP., AT 799.  THE DISTRICT COURT GAVE DETAILED
REASONS, WHICH THE RECORD FULLY SUPPORTS, FOR REJECTING THE
GOVERNMENT'S CONTENTION THAT THIS WAS A DISTINCT LINE OF COMMERCE.  SEE
217 F. SUPP., AT 799-802. 
..END :












ESCOBEDO V. ILLINOIS 378 U.S. 478 


NO. 615.  ARGUED APRIL 29, 1964.  - DECIDED JUNE 22, 1964.  - 28 ILL. 2D
41, 190 N.E.2D 825, REVERSED AND REMANDED. 


PETITIONER, A 22-YEAR-OLD OF MEXICAN EXTRACTION, WAS ARRESTED WITH HIS
SISTER AND TAKEN TO POLICE HEADQUARTERS FOR INTERROGATION IN CONNECTION
WITH THE FATAL SHOOTING, ABOUT 11 DAYS BEFORE, OF HIS BROTHER-IN-LAW. 
HE HAD BEEN ARRESTED SHORTLY AFTER THE SHOOTING, BUT HAD MADE NO
STATEMENT, AND WAS RELEASED AFTER HIS LAWYER OBTAINED A WRIT OF HABEAS
CORPUS FROM A STATE COURT.  PETITIONER MADE SEVERAL REQUESTS TO SEE HIS
LAWYER, WHO, THOUGH PRESENT IN THE BUILDING, AND DESPITE PERSISTENT
EFFORTS, WAS REFUSED ACCESS TO HIS CLIENT.  PETITIONER WAS NOT ADVISED
BY THE POLICE OF HIS RIGHT TO REMAIN SILENT AND, AFTER PERSISTENT
QUESTIONING BY THE POLICE, MADE A DAMAGING STATEMENT TO AN ASSISTANT
STATE'S ATTORNEY WHICH WAS ADMITTED AT THE TRIAL.  CONVICTED OF MURDER,
HE APPEALED TO THE STATE SUPREME COURT, WHICH AFFIRMED THE CONVICTION. 
HELD:  UNDER THE CIRCUMSTANCES OF THIS CASE, WHERE A POLICE
INVESTIGATION IS NO LONGER A GENERAL INQUIRY INTO AN UNSOLVED CRIME BUT
HAS BEGUN TO FOCUS ON A PARTICULAR SUSPECT IN POLICE CUSTODY WHO HAS
BEEN REFUSED AN OPPORTUNITY TO CONSULT WITH HIS COUNSEL AND WHO HAD NOT
BEEN WARNED OF HIS CONSTITUTIONAL RIGHT TO KEEP SILENT, THE ACCUSED HAS
BEEN DENIED THE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS; AND NO STATEMENT EXTRACTED BY THE POLICE DURING
THE INTERROGATION MAY BE USED AGAINST HIM AT A TRIAL.  CROOKER V.
CALIFORNIA, 357 U.S. 433, AND CICENIA V. LAGAY, 357 U.S. 504,
DISTINGUISHED, AND TO THE EXTENT THAT THEY MAY BE INCONSISTENT WITH THE
INSTANT CASE, THEY ARE NOT CONTROLLING.  PP. 479-492. 

ESCOBEDO V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THE CRITICAL QUESTION IN THIS CASE IS WHETHER, UNDER THE
CIRCUMSTANCES, THE REFUSAL BY THE POLICE TO HONOR PETITIONER'S REQUEST
TO CONSULT WITH HIS LAWYER DURING THE COURSE OF AN INTERROGATION
CONSTITUTES A DENIAL OF "THE ASSISTANCE OF COUNSEL" IN VIOLATION OF THE
SIXTH AMENDMENT TO THE CONSTITUTION AS "MADE OBLIGATORY UPON THE STATES
BY THE FOURTEENTH AMENDMENT," GIDEON V. WAINWRIGHT, 372 U.S. 335, 342,
AND THEREBY RENDERS INADMISSIBLE IN A STATE CRIMINAL TRIAL ANY
INCRIMINATING STATEMENT ELICITED BY THE POLICE DURING THE
INTERROGATION. 

ON THE NIGHT OF JANUARY 19, 1960, PETITIONER'S BROTHER-IN-LAW WAS
FATALLY SHOT.  IN THE EARLY HOURS OF THE NEXT MORNING, AT 2:30 A.M.,
PETITIONER WAS ARRESTED WITHOUT A WARRANT AND INTERROGATED. 
PETITIONER MADE NO STATEMENT TO THE POLICE AND WAS RELEASED AT 5 THAT
AFTERNOON PURSUANT TO A STATE COURT WRIT OF HABEAS CORPUS OBTAINED BY
MR. WARREN WOLFSON, A LAWYER WHO HAD BEEN RETAINED BY PETITIONER. 

ON JANUARY 30, BENEDICT DIGERLANDO, WHO WAS THEN IN POLICE CUSTODY
AND WHO WAS LATER INDICTED FOR THE MURDER ALONG WITH PETITIONER, TOLD
THE POLICE THAT PETITIONER HAD FIRED THE FATAL SHOTS.  BETWEEN 8 AND 9
THAT EVENING, PETITIONER AND HIS SISTER, THE WIDOW OF THE DECEASED,
WERE ARRESTED AND TAKEN TO POLICE HEADQUARTERS.  EN ROUTE TO THE POLICE
STATION, THE POLICE "HAD HANDCUFFED THE DEFENDANT BEHIND HIS BACK," AND
"ONE OF THE ARRESTING OFFICERS TOLD DEFENDANT THAT DIGERLANDO HAD NAMED
HIM AS THE ONE WHO SHOT" THE DECEASED.  PETITIONER TESTIFIED, WITHOUT
CONTRADICTION, THAT THE "DETECTIVES SAID THEY HAD US PRETTY WELL, UP
PRETTY TIGHT, AND WE MIGHT AS WELL ADMIT TO THIS CRIME," AND THAT HE
REPLIED, "I AM SORRY BUT I WOULD LIKE TO HAVE ADVICE FROM MY LAWYER." 
A POLICE OFFICER TESTIFIED THAT ALTHOUGH PETITIONER WAS NOT FORMALLY
CHARGED "HE WAS IN CUSTODY" AND "COULDN'T WALK OUT THE DOOR." 

SHORTLY AFTER PETITIONER REACHED POLICE HEADQUARTERS, HIS RETAINED
LAWYER ARRIVED.  THE LAWYER DESCRIBED THE ENSUING EVENTS IN THE
FOLLOWING TERMS: 

"ON THAT DAY I RECEIVED A PHONE CALL (FROM "THE MOTHER OF ANOTHER
DEFENDANT") AND PURSUANT TO THAT PHONE CALL I WENT TO THE DETECTIVE
BUREAU AT 11TH AND STATE.  THE FIRST PERSON I TALKED TO WAS THE
SERGEANT ON DUTY AT THE BUREAU DESK, SERGEANT PIDGEON.  I ASKED
SERGEANT PIDGEON FOR PERMISSION TO SPEAK TO MY CLIENT, DANNY ESCOBEDO
...  .  SERGEANT PIDGEON MADE A CALL TO THE BUREAU LOCKUP AND INFORMED
ME THAT THE BOY HAD BEEN TAKEN FROM THE LOCKUP TO THE HOMICIDE BUREAU. 
THIS WAS BETWEEN 9:30 AND 10:00 IN THE EVENING.  BEFORE I WENT
ANYWHERE, HE CALLED THE HOMICIDE BUREAU AND TOLD THEM THERE WAS AN
ATTORNEY WAITING TO SEE ESCOBEDO.  HE TOLD ME I COULD NOT SEE HIM. 
THEN I WENT UPSTAIRS TO THE HOMICIDE BUREAU.  THERE WERE SEVERAL
HOMICIDE DETECTIVES AROUND AND I TALKED TO THEM.  I IDENTIFIED MYSELF
AS ESCOBEDO'S ATTORNEY AND ASKED PERMISSION TO SEE HIM.  THEY SAID I
COULD NOT  ...  .  THE POLICE OFFICER TOLD ME TO SEE CHIEF FLYNN WHO
WAS ON DUTY.  I IDENTIFIED MYSELF TO CHIEF FLYNN AND ASKED PERMISSION
TO SEE MY CLIENT.  HE SAID I COULD NOT  ...  .  I THINK IT WAS
APPROXIMATELY 11:00 O'CLOCK.  HE SAID I COULDN'T SEE HIM BECAUSE THEY
HADN'T COMPLETED QUESTIONING  ...  .  FOR A SECOND OR TWO I SPOTTED HIM
IN AN OFFICE IN THE HOMICIDE BUREAU.  THE DOOR WAS OPEN AND I COULD SEE
THROUGH THE OFFICE  ...  .  I WAVED TO HIM AND HE WAVED BACK AND THEN
THE DOOR WAS CLOSED, BY ONE OF THE OFFICERS AT HOMICIDE.  (FN1)  THERE
WERE FOUR OR FIVE OFFICERS MILLING AROUND THE HOMICIDE DETAIL THAT
NIGHT.  AS TO WHETHER I TALKED TO CAPTAIN FLYNN ANY LATER THAT DAY, I
WAITED AROUND FOR ANOTHER HOUR OR TWO AND WENT BACK AGAIN AND RENEWED
MY REQUEST TO SEE MY CLIENT.  HE AGAIN TOLD ME I COULD NOT  ...  .  I
FILED AN OFFICIAL COMPLAINT WITH COMMISSIONER PHELAN OF THE CHICAGO
POLICE DEPARTMENT.  I HAD A CONVERSATION WITH EVERY POLICE OFFICER I
COULD FIND.  I WAS TOLD AT HOMICIDE THAT I COULDN'T SEE HIM AND I WOULD
HAVE TO GET A WRIT OF HABEAS CORPUS.  I LEFT THE HOMICIDE BUREAU AND
FROM THE DETECTIVE BUREAU AT 11TH AND STATE AT APPROXIMATELY 1:00 A.M.
(SUNDAY MORNING) I HAD NO OPPORTUNITY TO TALK TO MY CLIENT THAT NIGHT. 
I QUOTED TO CAPTAIN FLYNN THE SECTION OF THE CRIMINAL CODE WHICH ALLOWS
AN ATTORNEY THE RIGHT TO SEE HIS CLIENT."  (FN2) 

PETITIONER TESTIFIED THAT DURING THE COURSE OF THE INTERROGATION HE
REPEATEDLY ASKED TO SPEAK TO HIS LAWYER AND THAT THE POLICE SAID THAT
HIS LAWYER "DIDN'T WANT TO SEE" HIM.  THE TESTIMONY OF THE POLICE
OFFICERS CONFIRMED THESE ACCOUNTS IN SUBSTANTIAL DETAIL. 

NOTWITHSTANDING REPEATED REQUESTS BY EACH, PETITIONER AND HIS
RETAINED LAWYER WERE AFFORDED NO OPPORTUNITY TO CONSULT DURING THE
COURSE OF THE ENTIRE INTERROGATION.  AT ONE POINT, AS PREVIOUSLY NOTED,
PETITIONER AND HIS ATTORNEY CAME INTO EACH OTHER'S VIEW FOR A FEW
MOMENTS BUT THE ATTORNEY WAS QUICKLY USHERED AWAY.  PETITIONER
TESTIFIED "THAT HE HEARD A DETECTIVE TELLING THE ATTORNEY THE LATTER
WOULD NOT BE ALLOWED TO TALK TO HIM 'UNTIL THEY WERE DONE'" AND THAT HE
HEARD THE ATTORNEY BEING REFUSED PERMISSION TO REMAIN IN THE ADJOINING
ROOM.  A POLICE OFFICER TESTIFIED THAT HE HAD TOLD THE LAWYER THAT HE
COULD NOT SEE PETITIONER UNTIL "WE WERE THROUGH INTERROGATING" HIM. 

THERE IS TESTIMONY BY THE POLICE THAT DURING THE INTERROGATION,
PETITIONER, A 22-YEAR-OLD OF MEXICAN EXTRACTION WITH NO RECORD OF
PREVIOUS EXPERIENCE WITH THE POLICE, "WAS HANDCUFFED" (FN3) IN A
STANDING POSITION AND THAT HE "WAS NERVOUS, HE HAD CIRCLES UNDER HIS
EYES AND HE WAS UPSET" AND WAS "AGITATED" BECAUSE "HE HAD NOT SLEPT
WELL IN OVER A WEEK." 

IT IS UNDISPUTED THAT DURING THE COURSE OF THE INTERROGATION OFFICER
MONTEJANO, WHO "GREW UP" IN PETITIONER'S NEIGHBORHOOD, WHO KNEW HIS
FAMILY, AND WHO USES "SPANISH LANGUAGE IN HIS POLICE WORK," CONFERRED
ALONE WITH PETITIONER "FOR ABOUT A QUARTER OF AN HOUR  ...  ." 
PETITIONER TESTIFIED THAT THE OFFICER SAID TO HIM "IN SPANISH THAT MY
SISTER AND I COULD GO HOME IF I PINNED IT ON BENEDICT DIGERLANDO," THAT
"HE WOULD SEE TO IT THAT WE WOULD GO HOME AND BE HELD ONLY AS
WITNESSES, IF ANYTHING, IF WE HAD MADE A STATEMENT AGAINST DIGERLANDO
...  , THAT WE WOULD BE ABLE TO GO HOME THAT NIGHT."  PETITIONER
TESTIFIED THAT HE MADE THE STATEMENT IN ISSUE BECAUSE OF THIS
ASSURANCE.  OFFICER MONTEJANO DENIED OFFERING ANY SUCH ASSURANCE. 

A POLICE OFFICER TESTIFIED THAT DURING THE INTERROGATION THE
FOLLOWING OCCURRED: 

"I INFORMED HIM OF WHAT DIGERLANDO TOLD ME AND WHEN I DID, HE TOLD ME
THAT DIGERLANDO WAS LYING AND I SAID, 'WOULD YOU CARE TO TELL
DIGERLANDO THAT?'  AND HE SAID, 'YES, I WILL.'  SO, I BROUGHT ...
ESCOBDEO IN AND HE CONFRONTED DIGERLANDO AND HE TOLD HIM THAT HE WAS
LYING AND SAID, 'I DIDN'T SHOOT MANUEL, YOU DID IT.'" 

IN THIS WAY, PETITIONER, FOR THE FIRST TIME, ADMITTED TO SOME
KNOWLEDGE OF THE CRIME.  AFTER THAT HE MADE ADDITIONAL STATEMENTS
FURTHER IMPLICATING HIMSELF IN THE MURDER PLOT.  AT THIS POINT AN
ASSISTANT STATE'S ATTORNEY, THEODORE J. COOPER, WAS SUMMONED "TO TAKE"
A STATEMENT.  MR. COOPER, AN EXPERIENCED LAWYER WHO WAS ASSIGNED TO THE
HOMICIDE DIVISION TO TAKE "STATEMENTS FROM SOME DEFENDANTS AND SOME
PRISONERS THAT THEY HAD IN CUSTODY," "TOOK" PETITIONER'S STATEMENT BY
ASKING CAREFULLY FRAMED QUESTIONS APPARENTLY DESIGNED TO ASSURE THE
ADMISSIBILITY INTO EVIDENCE OF THE RESULTING ANSWERS.  MR. COOPER
TESTIFIED THAT HE DID NOT ADVISE PETITIONER OF HIS CONSTITUTIONAL
RIGHTS, AND IT IS UNDISPUTED THAT NO ONE DURING THE COURSE OF THE
INTERROGATION SO ADVISED HIM. 

PETITIONER MOVED BOTH BEFORE AND DURING TRIAL TO SUPPRESS THE
INCRIMINATING STATEMENT, BUT THE MOTIONS WERE DENIED.  PETITIONER WAS
CONVICTED OF MURDER AND HE APPEALED THE CONVICTION. 

THE SUPREME COURT OF ILLINOIS, IN ITS ORIGINAL OPINION OF FEBRUARY 1,
1963, HELD THE STATEMENT INADMISSIBLE AND REVERSED THE CONVICTION.  THE
COURT SAID: 

"IT SEEMS MANIFEST TO US, FROM THE UNDISPUTED EVIDENCE AND THE
CIRCUMSTANCES SURROUNDING DEFENDANT AT THE TIME OF HIS STATEMENT AND
SHORTLY PRIOR THERETO, THAT THE DEFENDANT UNDERSTOOD HE WOULD BE
PERMITTED TO GO HOME IF HE GAVE THE STATEMENT AND WOULD BE GRANTED AN
IMMUNITY FROM PROSECUTION." 

COMPARE LYNUMN V. ILLINOIS, 372 U.S. 528. 

THE STATE PETITIONED FOR, AND THE COURT GRANTED, REHEARING.  THE
COURT THEN AFFIRMED THE CONVICTION.  IT SAID:  "THE OFFICER DENIED
MAKING THE PROMISE AND THE TRIER OF FACT BELIEVED HIM.  WE FIND NO
REASON FOR DISTURBING THE TRIAL COURT'S FINDING THAT THE CONFESSION WAS
VOLUNTARY."  (FN4)  28 ILL. 2D 41, 45-46, 190 N.E.2D 825, 827.  THE
COURT ALSO HELD, ON THE AUTHORITY OF THIS COURT'S DECISIONS IN CROOKER
V. CALIFORNIA, 357 U.S. 433, AND CICENIA V. LAGAY, 357 U.S. 504, THAT
THE CONFESSION WAS ADMISSIBLE EVEN THOUGH "IT WAS OBTAINED AFTER HE HAD
REQUESTED THE ASSISTANCE OF COUNSEL, WHICH REQUEST WAS DENIED."  28
ILL. 2D, AT 46, 190 N.E.2D, AT 827.  WE GRANTED A WRIT OF CERTIORARI TO
CONSIDER WHETHER THE PETITIONER'S STATEMENT WAS CONSTITUTIONALLY
ADMISSIBLE AT HIS TRIAL.  375 U.S. 902.  WE CONCLUDE, FOR THE REASONS
STATED BELOW, THAT IT WAS NOT AND, ACCORDINGLY, WE REVERSE THE JUDGMENT
OF CONVICTION. 

IN MASSIAH V. UNITED STATES, 377 U.S. 201, THIS COURT OBSERVED THAT
"A CONSTITUTION WHICH GUARANTEES A DEFENDANT THE AID OF COUNSEL AT  ...
TRIAL COULD SURELY VOUCHSAFE NO LESS TO AN INDICTED DEFENDANT UNDER
INTERROGATION BY THE POLICE IN A COMPLETELY EXTRAJUDICIAL PROCEEDING. 
ANYTHING LESS  ...  MIGHT DENY A DEFENDANT 'EFFECTIVE REPRESENTATION BY
COUNSEL AT THE ONLY STAGE WHEN LEGAL AID AND ADVICE WOULD HELP HIM.'" 
ID., AT 204, QUOTING DOUGLAS, J., CONCURRING IN SPANO V. NEW YORK, 360
U.S. 315, 326. 

THE INTERROGATION HERE WAS CONDUCTED BEFORE PETITIONER WAS FORMALLY
INDICTED.  BUT IN THE CONTEXT OF THIS CASE, THAT FACT SHOULD MAKE NO
DIFFERENCE.  WHEN PETITIONER REQUESTED, AND WAS DENIED, AN OPPORTUNITY
TO CONSULT WITH HIS LAWYER, THE INVESTIGATION HAD CEASED TO BE A
GENERAL INVESTIGATION OF "AN UNSOLVED CRIME."  SPANO V. NEW YORK, 360
U.S. 315, 327 (STEWART, J., CONCURRING).  PETITIONER HAD BECOME THE
ACCUSED, AND THE PURPOSE OF THE INTERROGATION WAS TO "GET HIM" TO
CONFESS HIS GUILT DESPITE HIS CONSTITUTIONAL RIGHT NOT TO DO SO.  AT
THE TIME OF HIS ARREST AND THROUGHOUT THE COURSE OF THE INTERROGATION,
THE POLICE TOLD PETITIONER THAT THEY HAD CONVINCING EVIDENCE THAT HE
HAD FIRED THE FATAL SHOTS.  WITHOUT INFORMING HIM OF HIS ABSOLUTE RIGHT
TO REMAIN SILENT IN THE FACE OF THIS ACCUSATION, THE POLICE URGED HIM
TO MAKE A STATEMENT.  (FN5)  AS THIS COURT OBSERVED MANY YEARS AGO:

"IT CANNOT BE DOUBTED THAT, PLACED IN THE POSITION IN WHICH THE
ACCUSED WAS WHEN THE STATEMENT WAS MADE TO HIM THAT THE OTHER SUSPECTED
PERSON HAD CHARGED HIM WITH CRIME, THE RESULT WAS TO PRODUCE UPON HIS
MIND THE FEAR THAT IF HE REMAINED SILENT IT WOULD BE CONSIDERED AN
ADMISSION OF GUILT, AND THEREFORE RENDER CERTAIN HIS BEING COMMITTED
FOR TRIAL AS THE GUILTY PERSON, AND IT CANNOT BE CONCEIVED THAT THE
CONVERSE IMPRESSION WOULD NOT ALSO HAVE NATURALLY ARISEN, THAT BY
DENYING THERE WAS HOPE OF REMOVING THE SUSPICION FROM HIMSELF."  BRAM
V. UNITED STATES, 168 U.S. 532, 562. 

PETITIONER, A LAYMAN, WAS UNDOUBTEDLY UNAWARE THAT UNDER ILLINOIS LAW
AN ADMISSION OF "MERE" COMPLICITY IN THE MURDER PLOT WAS LEGALLY AS
DAMAGING AS AN ADMISSSION OF FIRING OF THE FATAL SHOTS.   ILLINOIS V.
ESCOBEDO, 28 ILL. 2D 41, 190 N.E.2D 825.  THE "GUIDING HAND OF COUNSEL"
WAS ESSENTIAL TO ADVISE PETITIONER OF HIS RIGHTS IN THIS DELICATE
SITUATION.  POWELL V. ALABAMA, 287 U.S. 45, 69.  THIS WAS THE "STAGE
WHEN LEGAL AID AND ADVICE" WERE MOST CRITICAL TO PETITIONER.  MASSIAH
V. UNITED STATES, SUPRA, AT 204.  IT WAS A STAGE SURELY AS CRITICAL AS
WAS THE ARRAIGNMENT IN HAMILTON V. ALABAMA, 368 U.S. 52, AND THE
PRELIMINARY HEARING IN WHITE V. MARYLAND, 373 U.S. 59.  WHAT HAPPENED
AT THIS INTERROGATION COULD CERTAINLY "AFFECT THE WHOLE TRIAL,"
HAMILTON V. ALABAMA, SUPRA, AT 54, SINCE RIGHTS "MAY BE AS
IRRETRIEVABLY LOST, IF NOT THEN AND THERE ASSERTED, AS THEY ARE WHEN AN
ACCUSED REPRESENTED BY COUNSEL WAIVES A RIGHT FOR STRATEGIC PURPOSES." 
IBID.  IT WOULD EXALT FORM OVER SUBSTANCE TO MAKE THE RIGHT TO COUNSEL,
UNDER THESE CIRCUMSTANCES, DEPEND ON WHETHER AT THE TIME OF THE
INTERROGATION, THE AUTHORITIES HAD SECURED A FORMAL INDICTMENT. 
PETITIONER HAD, FOR ALL PRACTICAL PURPOSES, ALREADY BEEN CHARGED WITH
MURDER. 

THE NEW YORK COURT OF APPEALS, WHOSE DECISIONS THIS COURT CITED WITH
APPROVAL IN MASSIAH, 377 U.S. 210, AT 205, HAS RECENTLY RECOGNIZED
THAT, UNDER CIRCUMSTANCES SUCH AS THOSE HERE, NO MEANINGFUL DISTINCTION
CAN BE DRAWN BETWEEN INTERROGATION OF AN ACCUSED BEFORE AND AFTER
FORMAL INDICTMENT.  IN PEOPLE V. DONOVAN, 13 N.Y.2D 148, 193 N.E.2D
628, THAT COURT, IN AN OPINION BY JUDGE FULD, HELD THAT A "CONFESSION
TAKEN FROM A DEFENDANT, DURING A PERIOD OF DETENTION (PRIOR TO
INDICTMENT), AFTER HIS ATTORNEY HAD REQUESTED AND BEEN DENIED ACCESS TO
HIM" COULD NOT BE USED AGAINST HIM IN A CRIMINAL TRIAL.  (FN6)  ID., AT
151, 193 N.E.2D, AT 629.  THE COURT OBSERVED THAT IT "WOULD BE HIGHLY
INCONGRUOUS IF OUR SYSTEM OF JUSTICE PERMITTED THE DISTRICT ATTORNEY,
THE LAWYER REPRESENTING THE STATE, TO EXTRACT A CONFESSION FROM THE
ACCUSED WHILE HIS OWN LAWYER, SEEKING TO SPEAK WITH HIM, WAS KEPT FROM
HIM BY THE POLICE."  ID., AT 152, 193 N.E.2D, AT 629.  (FN7)    IN
GIDEON V. WAINWRIGHT, 372 U.S. 335, WE HELD THAT EVERY PERSON ACCUSED
OF A CRIME, WHETHER STATE OR FEDERAL, IS ENTITLED TO A LAWYER AT
TRIAL.  (FN8)  THE RULE SOUGHT BY THE STATE HERE, HOWEVER, WOULD MAKE
THE TRIAL NO MORE THAN AN APPEAL FROM THE INTERROGATION; AND THE "RIGHT
TO USE COUNSEL AT THE FORMAL TRIAL (WOULD BE) A VERY HOLLOW THING IF,
FOR ALL PRACTICAL PURPOSES, THE CONVICTION IS ALREADY ASSURED BY
PRETRIAL EXAMINATION."  IN RE GROBAN, 352 U.S. 330, 344 (BLACK, J.,
DISSENTING).  (FN9)  "ONE CAN IMAGINE A CYNICAL PROSECUTOR SAYING:
'LET THEM HAVE THE MOST ILLUSTRIOUS COUNSEL, NOW.  THEY CAN'T ESCAPE
THE NOOSE.  THERE IS NOTHING THAT COUNSEL CAN DO FOR THEM AT THE
TRIAL.'"  EX PARTE SULLIVAN, 107 F. SUPP. 514, 517-518. 

IT IS ARGUED THAT IF THE RIGHT TO COUNSEL IS AFFORDED PRIOR TO
INDICTMENT, THE NUMBER OF CONFESSIONS OBTAINED BY THE POLICE WILL
DIMINISH SIGNIFICANTLY, BECAUSE MOST CONFESSIONS ARE OBTAINED DURING
THE PERIOD BETWEEN ARREST AND INDICTMENT, (FN10) AND "ANY LAWYER WORTH
HIS SALT WILL TELL THE SUSPECT IN NO UNCERTAIN TERMS TO MAKE NO
STATEMENT TO POLICE UNDER ANY CIRCUMSTANCES."  WATTS V. INDIANA, 338
U.S. 49, 59 (JACKSON, J., CONCURRING IN PART AND DISSENTING IN PART). 
THIS ARGUMENT, OF COURSE, CUTS TWO WAYS.  THE FACT THAT MANY
CONFESSIONS ARE OBTAINED DURING THIS PERIOD POINTS UP ITS CRITICAL
NATURE AS A "STAGE WHEN LEGAL AID AND ADVICE" ARE SURELY NEEDED. 
MASSIAH V. UNITED STATES, SUPRA, AT 204; HAMILTON V. ALABAMA, SUPRA;
WHITE V. MARYLAND, SUPRA.  THE RIGHT TO COUNSEL WOULD INDEED BE HOLLOW
IF IT BEGAN AT A PERIOD WHEN FEW CONFESSIONS WERE OBTAINED.  THERE IS
NECESSARILY A DIRECT RELATIONSHIP BETWEEN THE IMPORTANCE OF A STAGE TO
THE POLICE IN THEIR QUEST FOR A CONFESSION AND THE CRITICALNESS OF THAT
STAGE TO THE ACCUSED IN HIS NEED FOR LEGAL ADVICE.  OUR CONSTITUTION,
UNLIKE SOME OTHERS, STRIKES THE BALANCE IN FAVOR OF THE RIGHT OF THE
ACCUSED TO BE ADVISED BY HIS LAWYER OF HIS PRIVILEGE AGAINST SELF
INCRIMINATION.  SEE NOTE, 73 YALE L.J. 100, 1048-1051 (1964). 

WE HAVE LEARNED THE LESSON OF HISTORY, ANCIENT AND MODERN, THAT A
SYSTEM OF CRIMINAL LAW ENFORCEMENT WHICH COMES TO DEPEND ON THE
"CONFESSION" WILL, IN THE LONG RUN, BE LESS RELIABLE (FN11) AND MORE
SUBJECT TO ABUSES (FN12) THAN A SYSTEM WHICH DEPENDS ON EXTRINSIC
EVIDENCE INDEPENDENTLY SECURED THROUGH SKILLFUL INVESTIGATION.  AS DEAN
WIGMORE SO WISELY SAID: 

"ANY SYSTEM OF ADMINISTRATION WHICH PERMITS THE PROSECUTION TO TRUST
HABITUALLY TO COMPULSORY SELF-DISCLOSURE AS A SOURCE OF PROOF MUST
ITSELF SUFFER MORALLY THEREBY.  THE INCLINATION DEVELOPS TO RELY MAINLY
UPON SUCH EVIDENCE, AND TO BE SATISFIED WITH AN INCOMPLETE
INVESTIGATION OF THE OTHER SOURCES.  THE EXERCISE OF THE POWER TO
EXTRACT ANSWERS BEGETS A FORGETFULNESS OF THE JUST LIMITATIONS OF THAT
POWER.  THE SIMPLE AND PEACEFUL PROCESS OF QUESTIONING BREEDS A
READINESS TO RESORT TO BULLYING AND TO PHYSICAL FORCE AND TORTURE.  IF
THERE IS A RIGHT TO AN ANSWER, THERE SOON SEEMS TO BE A RIGHT TO THE
EXPECTED ANSWER, - THAT IS, TO A CONFESSION OF GUILT.  THUS THE
LEGITIMATE USE GROWN INTO THE UNJUST ABUSE; ULTIMATELY, THE INNOCENT
ARE JEOPARDIZED BY THE ENCROACHMENTS OF A BAD SYSTEM.  SUCH SEEMS TO
HAVE BEEN THE COURSE OF EXPERIENCE IN THOSE LEGAL SYSTEMS WHERE THE
PRIVILEGE WAS NOT RECOGNIZED."  8 WIGMORE, EVIDENCE (3D ED. 1940),
309. 

THIS COURT ALSO HAS RECOGNIZED THAT "HISTORY AMPLY SHOWS THAT
CONFESSIONS HAVE OFTEN BEEN EXTORTED TO SAVE LAW ENFORCEMENT OFFICIALS
THE TROUBLE AND EFFORT OF OBTAINING VALID AND INDEPENDENT EVIDENCE  ...
."  HAYNES V. WASHINGTON, 373 U.S. 503, 519. 

WE HAVE ALSO LEARNED THE COMPANION LESSON OF HISTORY THAT NO SYSTEM
OF CRIMINAL JUSTICE CAN, OR SHOULD, SURVIVE IF IT COMES TO DEPEND FOR
ITS CONTINUED EFFECTIVENESS ON THE CITIZENS' ABDICATION THROUGH
UNAWARENESS OF THEIR CONSTITUTIONAL RIGHTS.  NO SYSTEM WORTH PRESERVING
SHOULD HAVE TO FEAR THAT IF AN ACCUSED IS PERMITTED TO CONSULT WITH A
LAWYER, HE WILL BECOME AWARE OF, AND EXERCISE, THESE RIGHTS.  (FN13)
IF THE EXERCISE OF CONSTITUTIONAL RIGHTS WILL THWART THE EFFECTIVENESS
OF A SYSTEM OF LAW ENFORCEMENT, THEN THERE IS SOMETHING VERY WRONG WITH
THAT SYSTEM.  (FN14) 

WE HOLD, THEREFORE, THAT WHERE, AS HERE, THE INVESTIGATION IS NO
LONGER A GENERAL INQUIRY INTO AN UNSOLVED CRIME BUT HAS BEGUN TO FOCUS
ON A PARTICULAR SUSPECT, THE SUSPECT HAS BEEN TAKEN INTO POLICE
CUSTODY, THE POLICE CARRY OUT A PROCESS OF INTERROGATIONS LENDS ITSELF
TO ELICITING INCRIMINATING STATEMENTS, THE SUSPECT HAS REQUESTED AND
BEEN DENIED AN OPPORTUNITY TO CONSULT WITH HIS LAWYER, AND THE POLICE
HAVE NOT EFFECTIVELY WARNED HIM OF HIS ABSOLUTE CONSTITUTIONAL RIGHT TO
REMAIN SILENT, THE ACCUSED HAS BEEN DENIED "THE ASSISTANCE OF COUNSEL"
IN VIOLATION OF THE SIXTH AMENDMENT TO THE CONSTITUTION AS "MADE
OBLIGATORY UPON THE STATES BY THE FOURTEENTH AMENDMENT," GIDEON V.
WAINWRIGHT, 372 U.S., AT 342, AND THAT NO STATEMENT ELICITED BY THE
POLICE DURING THE INTERROGATION MAY BE USED AGAINST HIM AT A CRIMINAL
TRIAL. 

CROOKER V. CALIFORNIA, 357 U.S. 433, DOES NOT COMPEL A CONTRARY
RESULT.  IN THAT CASE THE COURT MERELY REJECTED THE ABSOLUTE RULE
SOUGHT BY PETITIONER, THAT "EVERY STATE DENIAL OF A REQUEST TO CONTACT
COUNSEL IS AN INFRINGEMENT OF THE CONSTITUTIONAL RIGHT WITHOUT REGARD
TO THE CIRCUMSTANCES OF THE CASE."  ID., AT 440.  IN ITS PLACE, THE
FOLLOWING RULE WAS ANNOUNCED: 

"STATE REFUSAL TO A REQUEST TO ENGAGE COUNSEL VIOLATES DUE PROCESS
NOT ONLY IF THE ACCUSED IS DEPRIVED OF COUNSEL AT TRIAL ON THE MERITS,
...  BUT ALSO IF HE IS DEPRIVED OF COUNSEL FOR ANY PART OF THE PRETRIAL
PROCEEDINGS, PROVIDED THAT HE IS SO PREJUDICED THEREBY AS TO INFECT HIS
SUBSEQUENT TRIAL WITH AN ABSENCE OF 'THAT FUNDAMENTAL FAIRNESS
ESSENTIAL TO THE VERY CONCEPT OF JUSTICE  ... .'  THE LATTER
DETERMINATION NECESSARILY DEPENDS UPON ALL THE CIRCUMSTANCES OF THE
CASE."  357 U.S., AT 439-440. 

THE COURT, APPLYING "THESE PRINCIPLES" TO "THE SUM TOTAL OF THE
CIRCUMSTANCES THERE DURING THE TIME PETITIONER WAS WITHOUT COUNSEL,"
ID., AT 440, CONCLUDED THAT HE HAD NOT BEEN FUNDAMENTALLY PREJUDICED BY
THE DENIAL OF HIS REQUEST FOR COUNSEL.  AMONG THE CRITICAL
CIRCUMSTANCES WHICH DISTINGUISH THAT CASE FROM THIS ONE ARE THAT THE
PETITIONER THERE, BUT NOT HERE, WAS EXPLICITLY ADVISED BY THE POLICE OF
HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT AND NOT TO "SAY ANYTHING" IN
RESPONSE TO THE QUESTION, ID., AT 437, AND THAT PETITIONER THERE, BUT
NOT HERE, WAS A WELL-EDUCATED MAN WHO HAD STUDIED CRIMINAL LAW WHILE
ATTENDING LAW SCHOOL FOR A YEAR.  THE COURT'S OPINION IN CICENIA V.
LAGAY, 357 U.S. 504, DECIDED THE SAME DAY, MERELY SAID THAT THE
"CONTENTION THAT PETITIONER HAD A CONSTITUTIONAL RIGHT TO CONFER WITH
COUNSEL IS DISPOSED OF BY CROOKER V. CALIFORNIA  ...  ."  THAT CASE
ADDS NOTHING, THEREFORE, TO CROOKER.  IN ANY EVENT, TO THE EXTENT THAT
CICENIA OR CROOKER MAY BE INCONSISTENT WITH THE PRINCIPLES ANNOUNCED
TODAY, THEY ARE NOT TO BE REGARDED AS CONTROLLING.  (FN15) 

NOTHING WE HAVE SAID TODAY AFFECTS THE POWERS OF THE POLICE TO
INVESTIGATE "AN UNSOLVED CRIME," SPANO V. NEW YORK, 360 U.S. 315, 327
(STEWART, J., CONCURRING), BY GATHERING INFORMATION FROM WITNESSES AND
BY OTHER "PROPER INVESTIGATIVE EFFORTS."  HAYNES V. WASHINGTON, 373
U.S. 503, 519.  WE HOLD ONLY THAT WHEN THE PROCESS SHIFTS FROM
INVESTIGATORY TO ACCUSATORY - WHEN ITS FOCUS IS ON THE ACCUSED AND ITS
PURPOSE IS TO ELICIT A CONFESSION - OUR ADVERSARY SYSTEM BEGINS TO
OPERATE, AND, UNDER THE CIRCUMSTANCES HERE, THE ACCUSED MUST BE
PERMITTED TO CONSULT WITH HIS LAWYER. 

THE JUDGMENT OF THE ILLINOIS SUPREME COURT IS REVERSED AND THE CASE
REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED
AND REMANDED. 

FN1  PETITIONER TESTIFIED THAT THIS AMBIGUOUS GESTURE "COULD HAVE
MEANT MOST ANYTHING," BUT THAT HE "TOOK IT UPON HIS OWN TO THINK THAT
(THE LAWYER WAS TELLING HIM) NOT TO SAY ANYTHING," AND THAT THE LAWYER
"WANTED TO TALK" TO HIM. 

FN2  THE STATUTE THEN IN EFFECT PROVIDED IN PERTINENT PART THAT:
"ALL PUBLIC OFFICERS  ... HAVING THE CUSTODY OF ANY PERSON  ...
RESTRAINED OF HIS LIBERTY FOR ANY ALLEGED CAUSE WHATEVER, SHALL, EXCEPT
IN CASES OF IMMINENT DANGER OF ESCAPE, ADMIT ANY PRACTICING ATTORNEY
...  WHOM SUCH PERSON  ...  MAY DESIRE TO SEE OR CONSULT  ...  ."  ILL.
REV. STAT. (1959), C. 38, SEC. 477.  REPEALED AS OF JAN. 1, 1964, BY
ACT APPROVED AUG. 14, 1963, H.B. NO. 851. 

FN3  THE TRIAL JUDGE JUSTIFIED THE HANDCUFFING ON THE GROUND THAT IT
"IS ORDINARY POLICE PROCEDURE." 

FN4  COMPARE HAYNES V. WASHINGTON, 373 U.S. 503, 515 (DECIDED ON THE
SAME DAY AS THE DECISION OF THE ILLINOIS SUPREME COURT HERE), WHERE WE
SAID: 

"OUR CONCLUSION IS IN NO WAY FORECLOSED, AS THE STATE CONTENDS, BY
THE FACT THAT THE STATE TRIAL JUDGE OR THE JURY MAY HAVE REACHED A
DIFFERENT RESULT ON THIS ISSUE. 

"IT IS WELL SETTLED THAT THE DUTY OF CONSTITUTIONAL ADJUDICATION
RESTING UPON THIS COURT REQUIRES THAT THE QUESTION WHETHER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT HAS BEEN VIOLATED BY
ADMISSION INTO EVIDENCE OF A COERCED CONFESSION BE THE SUBJECT OF AN
INDEPENDENT DETERMINATION HERE, SEE, E.G., ASHCRAFT V. TENNESSEE, 322
U.S. 143, 147-148; 'WE CANNOT ESCAPE THE RESPONSIBILITY OF MAKING OUR
OWN EXAMINATION OF THE RECORD,' SPANO V. NEW YORK, 360 U.S. 315, 316." 

FN5  ALTHOUGH THERE IS TESTIMONY IN THE RECORD THAT PETITIONER AND
HIS LAWYER HAD PREVIOUSLY DISCUSSED WHAT PETITIONER SHOULD DO IN THE
EVENT OF INTERROGATION, THERE IS NO EVIDENCE THAT THEY DISCUSSED WHAT
PETITIONER SHOULD, OR COULD, DO IN THE FACE OF A FALSE ACCUSATION THAT
HE HAD FIRED THE FATAL BULLETS. 

FN6  THE ENGLISH JUDGES' RULES ALSO RECOGNIZE THAT A FUNCTIONAL
RATHER THAN A FORMAL TEST MUST BE APPLIED AND THAT, UNDER CIRCUMSTANCES
SUCH AS THOSE HERE, NO SPECIAL SIGNIFICANCE SHOULD BE ATTACHED TO
FORMAL INDICTMENT.  THE APPLICABLE RULE DOES NOT PERMIT THE POLICE TO
QUESTION AN ACCUSED, EXCEPT IN CERTAIN EXTREMELY LIMITED SITUATIONS NOT
RELEVANT HERE, AT ANY TIME AFTER THE DEFENDANT "HAS BEEN CHARGED OR
INFORMED THAT HE MAY BE PROSECUTED."  (1964) CRIM. L. REV. 166-170. 
ALTHOUGH VOLUNTARY STATEMENTS OBTAINED IN VIOLATION OF THESE RULES ARE
NOT AUTOMATICALLY EXCLUDED FROM EVIDENCE THE JUDGE MAY, IN THE EXERCISE
OF HIS DISCRETION, EXCLUDE THEM.  "RECENT CASES SUGGEST THAT PERHAPS
THE JUDGES HAVE BEEN TIGHTENTING UP AND ALMOST INEVITABLY, THE EFFECT
OF THE NEW RULES WILL BE TO STIMULATE THIS TENDENCY."  ID., AT 182. 

FN7  CANON 9 OF THE AMERICAN BAR ASSOCIATION'S CANON OF PROFESSIONAL
ETHICS PROVIDES THAT: 

"A LAWYER SHOULD NOT IN ANY WAY COMMUNICATE UPON THE SUBJECT OF
CONTROVERSY WITH A PARTY REPRESENTED BY COUNSEL; MUCH LESS SHOULD HE
UNDERTAKE TO NEGOTIATE OR COMPROMISE THE MATTER WITH HIM, BUT SHOULD
DEAL ONLY WITH HIS COUNSEL.  IT IS INCUMBENT UPON THE LAWYER MOST
PARTICULARLY TO AVOID EVERYTHING THAT MAY TEND TO MISLEAD A PARTY NOT
REPRESENTED BY COUNSEL, AND HE SHOULD NOT UNDERTAKE TO ADVISE HIM AS TO
THE LAW."  SEE BROEDER, WONG SUN V. UNITED STATES:  A STUDY IN FAITH
AND HOPE, 42 NEB. L. REV. 483, 599-604. 

FN8  TWENTY-TWO STATES, INCLUDING ILLINOIS, URGED US SO TO HOLD. 

FN9  THE SOVIET CRIMINAL CODE DOES NOT PERMIT A LAWYER TO BE PRESENT
DURING THE INVESTIGATION.  THE SOVIET TRIAL HAS THUS BEEN APTLY
DESCRIBED AS "AN APPEAL FROM THE PRETRIAL INVESTIGATION."  FEIFER,
JUSTICE IN MOSCOW (1964), 86. 

FN10  SEE BARRETT, POLICE PRACTICES AND THE LAW - FROM ARREST TO
RELEASE OR CHARGE, 50 CAL. L. REV. 11, 43 (1962). 

FN11  SEE COMMITTEE PRINT, SUBCOMMITTEE TO INVESTIGATE ADMINISTRATION
OF THE INTERNAL SECURITY ACT, SENATE COMMITTEE ON THE JUDICIARY, 85TH
CONG., 1ST SESS., REPORTING AND ANALYZING THE PROCEEDINGS AT THE XXTH
CONGRESS OF THE COMMUNIST PARTY OF THE SOVIET UNION, FEBRUARY 25, 1956,
EXPOSING THE FALSE CONFESSIONS OBTAINED DURING THE STALIN PURGES OF THE
1930'S.  SEE ALSO MILLER V. UNITED STATES, 320 F.2D 767, 772-773
(OPINION OF CHIEF JUDGE BAZELON); LIFTON, THOUGHT REFORM AND THE
PSYCHOLOGY OF TOTALISM (1961); ROGGE, WHY MEN CONFESS (1959); SCHEIN,
COERCIVE PERSUASION (1961). 

FN12  SEE STEPHEN, HISTORY OF THE CRIMINAL LAW, QUOTED IN 8 WIGMORE,
EVIDENCE (3D ED.  1940), 312; REPORT AND RECOMMENDATIONS OF THE
COMMISSIONERS' COMMITTEE ON POLICE ARRESTS FOR INVESTIGATION, DISTRICT
OF COLUMBIA (1962). 

FN13  CF. REPORT OF ATTORNEY GENERAL'S COMMITTEE ON POVERTY AND THE
ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE (1963), 10-11:  "THE
SURVIVAL OF OUR SYSTEM OF CRIMINAL JUSTICE AND THE VALUES WHICH IT
ADVANCES DEPENDS UPON A CONSTANT, SEARCHING, AND CREATIVE QUESTIONING
OF OFFICIAL DECISIONS AND ASSERTIONS OF AUTHORITY AT ALL STAGES OF THE
PROCESS  ...  .  PERSONS (DENIED ACCESS TO COUNSEL) ARE INCAPABLE OF
PROVIDING THE CHALLENGES THAT ARE INDISPENSABLE TO SATISFACTORY
OPERATION OF THE SYSTEM.  THE LOSS TO THE INTERESTS OF ACCUSED
INDIVIDUALS, OCCASIONED BY THESE FAILURES, ARE GREAT AND APPARENT.  IT
IS ALSO CLEAR THAT A SITUATION IN WHICH PERSONS ARE REQUIRED TO CONTEST
A SERIOUS ACCUSATION BUT ARE DENIED ACCESS TO THE TOOLS OF CONTEST IS
OFFENSIVE TO FAIRNESS AND EQUITY.  BEYOND THESE CONSIDERATIONS,
HOWEVER, IS THE FACT THAT THIS SITUATION IS DETRIMENTAL TO THE PROPER
FUNCTIONING OF THE SYSTEM OF JUSTICE AND THAT THE LOSS IN VITALITY OF
THE ADVERSARY SYSTEM, THEREBY OCCASIONED, SIGNIFICANTLY ENDANGERS THE
BASIC INTERESTS OF A FREE COMMUNITY." 

FN14  THE ACCUSED MAY, OF COURSE, INTELLIGENTLY AND KNOWINGLY WAIVE
HIS PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO COUNSEL
EITHER AT A PRETRIAL STAGE OR AT THE TRIAL.  SEE JOHNSON V. ZERBST, 304
U.S. 458.  BUT NO KNOWING AND INTELLIGENT WAIVER OF ANY CONSTITUTIONAL
RIGHT CAN BE SAID TO HAVE OCCURRED UNDER THE CIRCUMSTANCES OF THIS
CASE.    FN15  THE AUTHORITY OF CICENIA V. LAGAY, 357 U.S. 504, AND
CROOKER V. CALIFORNIA, 357 U.S. 433, WAS WEAKENED BY THE SUBSEQUENT
DECISIONS OF THIS COURT IN HAMILTON V. ALABAMA, 368 U.S. 52, WHITE V.
MARYLAND, 373 U.S. 59, AND MASSIAH V. UNITED STATES, 377 U.S. 201 (AS
THE DISSENTING OPINION IN THE LAST-CITED CASE RECOGNIZED). 

MR. JUSTICE HARLAN, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS ON THE
BASIS OF CICENIA V. LAGAY, 357 U.S. 504, DECIDED BY THIS COURT ONLY SIX
YEARS AGO.  LIKE MY BROTHER WHITE, POST, P. 495, I THINK THE RULE
ANNOUNCED TODAY IS MOST ILL-CONCEIVED AND THAT IT SERIOUSLY AND
UNJUSTIFIABLY FETTERS PERFECTLY LEGITIMATE METHODS OF CRIMINAL LAW
ENFORCEMENT. 

MR. JUSTICE STEWART, DISSENTING. 

I THINK THIS CASE IS DIRECTLY CONTROLLED BY CICENIA V. LAGAY, 357
U.S. 504, AND I WOULD THEREFORE AFFIRM THE JUDGMENT. 

MASSIAH V. UNITED STATES, 377 U.S. 201, IS NOT IN POINT HERE.  IN THAT
CASE A FEDERAL GRAND JURY HAD INDICTED MASSIAH.  HE HAD RETAINED A
LAWYER AND ENTERED A FORMAL PLEA OF NOT GUILTY.  UNDER OUR SYSTEM OF
FEDERAL JUSTICE AN INDICTMENT AND ARRAIGNMENT ARE FOLLOWED BY A TRIAL,
AT WHICH THE SIXTH AMENDMENT GUARANTEES THE DEFENDANT THE ASSISTANCE OF
COUNSEL.*  BUT MASSIAH WAS RELEASED ON BAIL, AND THEREAFTER AGENTS OF
THE FEDERAL GOVERNMENT DELIBERATELY ELICITED INCRIMINATING STATEMENTS
FROM HIM IN THE ABSENCE OF HIS LAWYER.  WE HELD THAT THE USE OF THESE
STATEMENTS AGAINST HIM AT HIS TRIAL DENIED HIM THE BASIC PROTECTIONS OF
THE SIXTH AMENDMENT GUARANTEE.  PUTTING TO ONE SIDE THE FACT THAT THE
CASE NOW BEFORE US IS NOT A FEDERAL CASE, THE VITAL FACT REMAINS THAT
THIS CASE DOES NOT INVOLVE THE DELIBERATE INTERROGATION OF A DEFENDANT
AFTER THE INITIATION OF JUDICIAL PROCEEDINGS AGAINST HIM.  THE COURT
DISREGARDS THIS BASIC DIFFERENCE BETWEEN THE PRESENT CASE AND
MASSIAH'S, WITH THE BLAND ASSERTION THAT "THAT FACE SHOULD MAKE NO
DIFFERENCE."  ANTE, P. 485. 

*IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT  ...
TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

IT IS 'THAT FACT," I SUBMIT, WHICH MAKES ALL THE DIFFERENCE.  UNDER
OUR SYSTEM OF CRIMINAL JUSTICE THE INSTITUTION OF FORMAL, MEANINGFUL
JUDICIAL PROCEEDINGS, BY WAY OF INDICTMENT, INFORMATION, OR
ARRAIGNMENT, MARKS THE POINT AT WHICH A CRIMINAL INVESTIGATION HAS
ENDED AND ADVERSARY PROCEEDINGS HAVE COMMENCED.  IT IS AT THIS POINT
THAT THE CONSTITUTIONAL GUARANTEES ATTACH WHICH PERTAIN TO A CRIMINAL
TRIAL.  AMONG THOSE GUARANTEES ARE THE RIGHT TO A SPEEDY TRIAL, THE
RIGHT OF CONFRONTATION, AND THE RIGHT TO TRIAL BY JURY.  ANOTHER IS THE
GUARANTEE OF THE ASSISTANCE OF COUNSEL.  GIDEON V. WAINWRIGHT, 372 U.S.
335; HAMILTON V. ALABAMA, 368 U.S. 52; WHITE V. MARYLAND, 373 U.S. 59. 

THE CONFESSION WHICH THE COURT TODAY HOLDS INADMISSIBLE WAS A
VOLUNTARY ONE.  IT WAS GIVEN DURING THE COURSE OF A PERFECTLY
LEGITIMATE POLICE INVESTIGATION OF AN UNSOLVED MURDER.  THE COURT SAYS
THAT WHAT HAPPENED DURING THIS INVESTIGATION "AFFECTED" THE TRIAL.  I
HAD ALWAYS SUPPOSED THAT THE WHOLE PURPOSE OF A POLICE INVESTIGATION OF
A MURDER WAS TO "AFFECT" THE TRIAL OF THE MURDERER, AND THAT IT WOULD
BE ONLY AN INCOMPETENT, UNSUCCESSFUL, OR CORRUPT INVESTIGATION WHICH
WOULD NOT DO SO. THE COURT FURTHER SAYS THAT THE ILLINOIS POLICE
OFFICERS DID NOT ADVISE THE PETITIONER OF HIS "CONSTITUTIONAL RIGHTS"
BEFORE HE CONFESSED TO THE MURDER.  THIS COURT HAS NEVER HELD THAT THE
CONSTITUTION REQUIRES THE POLICE TO GIVE ANY "ADVICE" UNDER
CIRCUMSTANCES SUCH AS THESE. 

SUPPORTED BY NO STRONGER AUTHORITY THAN ITS OWN RHETORIC, THE COURT
TODAY CONVERTS A ROUTINE POLICE INVESTIGATION OF AN UNSOLVED MURDER
INTO A DISTORTED ANALOGUE OF A JUDICIAL TRIAL.  IT IMPORTS INTO THIS
INVESTIGATION CONSTITUTIONAL CONCEPTS HISTORICALLY APPLICABLE ONLY
AFTER THE ONSET OF FORMAL PROSECUTORIAL PROCEEDINGS.  BY DOING SO, I
THINK THE COURT PERVERTS THOSE PRECIOUS CONSTITUTIONAL GUARANTEES, AND
FRUSTRATES THE VITAL INTERESTS OF SOCIETY IN PRESERVING THE LEGITIMATE
AND PROPER FUNCTION OF HONEST AND PURPOSEFUL POLICE INVESTIGATION. 

LIKE MY BROTHER CLARK, I CANNOT ESCAPE THE LOGIC OF MY BROTHER
WHITE'S CONCLUSIONS AS TO THE EXTRAORDINARY IMPLICATIONS WHICH EMANATE
FROM THE COURT'S OPINION IN THIS CASE, AND I SHARE THEIR VIEWS AS TO
THE UNTOLD AND HIGHLY UNFORTUNATE IMPACT TODAY'S DECISION MAY HAVE UPON
THE FAIR ADMINISTRATION OF CRIMINAL JUSTICE.  I CAN ONLY HOPE WE HAVE
COMPLETELY MISUNDERSTOOD WHAT THE COURT HAS SAID. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE CLARK AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

IN MASSIAH V. UNITED STATES, 377 U.S. 210, THE COURT HELD THAT AS OF
THE DATE OF THE INDICTMENT THE PROSECUTION IS DISENTITLED TO SECURE
ADMISSIONS FROM THE ACCUSED.  THE COURT NOW MOVES THAT DATE BACK TO THE
TIME WHEN THE PROSECUTION BEGINS TO "FOCUS" ON THE ACCUSED.  ALTHOUGH
THE OPINION PURPORTS TO BE LIMITED TO THE FACTS OF THIS CASE, IT WOULD
BE NAIVE TO THINK THAT THE NEW CONSTITUTIONAL RIGHT ANNOUNCED WILL
DEPEND UPON WHETHER THE ACCUSED HAS RETAINED HIS OWN COUNSEL, CF.
GIDEON V. WAINWRIGHT, 372 U.S. 335; GRIFFIN V. ILLINOIS, 351 U.S. 12;
DOUGLAS V. CALIFORNIA, 372 U.S. 353, OR HAS ASKED TO CONSULT WITH
COUNSEL IN THE COURSE OF INTERROGATION.  CF. CARNLEY V. COCHRAN, 369
U.S. 506.  AT THE VERY LEAST THE COURT HOLDS THAT ONCE THE ACCUSED
BECOMES A SUSPECT AND, PRESUMABLY, IS ARRESTED, ANY ADMISSION MADE TO
THE POLICE THEREAFTER IS INADMISSIBLE EVIDENCE UNLESS THE ACCUSED HAS
WAIVED HIS RIGHT TO COUNSEL.  THE DECISION IS THUS ANOTHER MAJOR STEP
IN THE DIRECTION OF THE GOAL WHICH THE COURT SEEMINGLY HAS IN MIND - TO
BAR FROM EVIDENCE ALL ADMISSIONS OBTAINED FROM AN INDIVIDUAL SUSPECTED
OF CRIME, WHETHER INVOLUNTARILY MADE OR NOT.  IT DOES OF COURSE PUT US
ONE STEP "AHEAD" OF THE ENGLISH JUDGES WHO HAVE HAD THE GOOD SENSE TO
LEAVE THE MATTER A DISCRETIONARY ONE WITH THE TRIAL COURT.*  I REJECT
THIS STEP AND THE INVITATION TO GO FARTHER WHICH THE COURT HAS NOW
ISSUED. 

*"IT SEEMS FROM REPORTED CASES THAT THE JUDGES HAVE GIVEN UP
ENFORCING THEIR OWN RULES, FOR IT IS NO LONGER THE PRACTICE TO EXCLUDE
EVIDENCE OBTAINED BY QUESTIONING IN CUSTODY  ...  .  A TRADITIONAL
PRINCIPLE OF 'FAIRNESS' TO CRIMINALS, WHICH HAS QUITE POSSIBLY LOST
SOME OF THE REASON FOR ITS EXISTENCE, IS MAINTAINED IN WORDS WHILE IT
IS DISREGARDED IN FACT  ...  . 

"THE READER MAY BE EXPECTING AT THIS POINT A VIGOROUS DENUNCIATION OF
THE POLICE AND OF THE JUDGES, AND A PLEA FOR A RETURN TO THE JUDGES'
RULES AS INTERPRETED IN 1930.  WHAT HAS TO BE CONSIDERED, HOWEVER, IS
WHETHER THESE RULES ARE A WORKABLE PART OF THE MACHINERY OF JUSTICE. 
PERHAPS THE TRUTH IS THAT THE RULES HAVE BEEN ABANDONED, BY TACIT
CONSENT, JUST BECAUSE THEY ARE AN UNREASONABLE RESTRICTION UPON THE
ACTIVITIES OF THE POLICE IN BRINGING CRIMINALS TO BOOK."  WILLIAMS,
QUESTIONING BY THE POLICE:  SOME PRACTICAL CONSIDERATIONS, (1960) CRIM.
L. REV. 325, 331-332.  SEE ALSO (1964) CRIM. L. REV.  161-182. 

BY ABANDONING THE VOLUNTARY-INVOLUNTARY TEST FOR ADMISSIBILITY OF
CONFESSIONS, THE COURT SEEMS DRIVEN BY THE NOTION THAT IT IS
UNCIVILIZED LAW ENFORCEMENT TO USE AN ACCUSED'S OWN ADMISSIONS AGAINST
HIM AT HIS TRIAL.  IT ATTEMPTS TO FIND A HOME FOR THIS NEW AND NEBULOUS
RULE OF DUE PROCESS BY ATTACHING IT TO THE RIGHT TO COUNSEL GUARANTEED
IN THE FEDERAL SYSTEM BY THE SIXTH AMENDMENT AND BINDING UPON THE
STATES BY VIRTUE OF THE DUE PROCESS GUARANTEE OF THE FOURTEENTH
AMENDMENT.  GIDEON V. WAINWRIGHT, SUPRA.  THE RIGHT TO COUNSEL NOW NOT
ONLY ENTITLES THE ACCUSED TO COUNSEL'S ADVICE AND AID IN PREPARING FOR
TRIAL BUT STANDS AS AN IMPENETRABLE BARRIER TO ANY INTERROGATION ONCE
THE ACCUSED HAS BECOME A SUSPECT.  FROM THAT VERY MOMENT APPARENTLY HIS
RIGHT TO COUNSEL ATTACHES, A RULE WHOLLY UNWORKABLE AND IMPOSSIBLE TO
ADMINISTER UNLESS POLICE CARS ARE EQUIPPED WITH PUBLIC DEFENDERS AND
UNDERCOVER AGENTS AND POLICE INFORMANTS HAVE DEFENSE COUNSEL AT THEIR
SIDE.  I WOULD NOT ABANDON THE COURT'S PRIOR CASES DEFINING WITH SOME
CARE AND ANALYSIS THE CIRCUMSTANCES REQUIRING THE PRESENCE OR AID OF
COUNSEL AND SUBSTITUTE THE AMORPHOUS AND WHOLLY UNWORKABLE PRINCIPLE
THAT COUNSEL IS CONSTITUTIONALLY REQUIRED WHENEVER HE WOULD OR COULD BE
HELPFUL.  HAMILTON V. ALABAMA, 368 U.S. 52; WHITE V. MARYLAND, 373 U.S.
59; GIDEON V. WAINWRIGHT, SUPRA.  THESE CASES DEALT WITH THE REQUIRMENT
OF COUNSEL AT PROCEEDINGS IN WHICH DEFINABLE RIGHTS COULD BE WON OR
LOST, NOT WITH STAGES WHERE PROBATIVE EVIDENCE MIGHT BE OBTAINED. 
UNDER THIS NEW APPROACH ONE MIGHT JUST AS WELL ARGUE THAT A POTENTIAL
DEFENDANT IS CONSTITUTIONALLY ENTITLED TO A LAWYER BEFORE, NOT AFTER,
HE COMMITS A CRIME, SINCE IT IS THEN THAT CRUCIAL INCRIMINATING
EVIDENCE IS PUT WITHIN THE REACH OF THE GOVERNMENT BY THE WOULD-BE
ACCUSED.  UNTIL NOW THERE SIMPLY HAS BEEN NO RIGHT GUARANTEED BY THE
FEDERAL CONSTITUTION TO BE FREE FROM THE USE AT TRIAL OF A VOLUNTARY
ADMISSION MADE PRIOR TO INDICTMENT. 

IT IS INCONGRUOUS TO ASSUME THAT THE PROVISION FOR COUNSEL IN THE
SIXTH AMENDMENT WAS MEANT TO AMEND OR SUPERSEDE THE SELF-INCRIMINATION
PROVISION OF THE FIFTH AMENDMENT, WHICH IS NOW APPLICABLE TO THE
STATES.  MALLOY V. HOGAN, 378 U.S. 1.  THAT AMENDMENT ADDRESSES ITSELF
TO THE VERY ISSUE OF INCRIMINATING ADMISSIONS OF AN ACCUSED AND
RESOLVES IT BY PROSCRIBING ONLY COMPELLED STATEMENTS.  NEITHER THE
FRAMERS, THE CONSTITUTIONAL LANGUAGE, A CENTURY OF DECISIONS OF THIS
COURT NOR PROFESSOR WIGMORE PROVIDES AN IOTA OF SUPPORT FOR THE IDEA
THAT AN ACCUSED HAS AN ABSOLUTE CONSTITUTIONAL RIGHT NOT TO ANSWER EVEN
IN THE ABSENCE OF COMPULSION - THE CONSTITUTIONAL RIGHT NOT TO
INCRIMINATE HIMSELF BY MAKING VOLUNTARY DISCLOSURES. 

TODAY'S DECISION CANNOT BE SQUARED WITH OTHER PROVISIONS OF THE
CONSTITUTION WHICH, IN MY VIEW, DEFINE THE SYSTEM OF CRIMINAL JUSTICE
THIS COURT IS EMPOWERED TO ADMINISTER.  THE FOURTH AMENDMENT PERMITS
UPON PROBABLE CAUSE EVEN COMPULSORY SEARCHES OF THE SUSPECT AND HIS
POSSESSIONS AND THE USE OF THE FRUITS OF THE SEARCH AT TRIAL, ALL IN
THE ABSENCE OF COUNSEL.  THE FIFTH AMENDMENT AND STATE CONSTITUTIONAL
PROVISIONS AUTHORIZE, INDEED REQUIRE, INQUISITORIAL GRAND JURY
PROCEEDINGS AT WHICH A POTENTIAL DEFENDANT, IN THE ABSENCE OF COUNSEL,
IS SHIELDED AGAINST NO MORE THAN COMPULSORY INCRIMINATION.  MULLONEY V.
UNITED STATES, 79 F.2D 566, 578 (C.A. 1ST CIR.); UNITED STATES V.
BENAJMIN, 120 F.2D 521, 522 (C.A.2D CIR.); UNITED STATES V. SCULLY, 225
F.2D 113, 115 (C.A.2D CIR.); UNITED STATES V. GILBOY, 160 F. SUPP. 442
(D.C.M.D. PA.).  A GRAND JURY WITNESS, WHO MAY BE A SUSPECT, IS
INTERROGATED AND HIS ANSWERS, AT LEAST UNTIL TODAY, ARE ADMISSIBLE IN
EVIDENCE AT TRIAL.   AND THESE PROVISIONS HAVE BEEN THOUGHT OF AS
CONSTITUTIONAL SAFEGUARDS TO PERSONS SUSPECTED OF AN OFFENSE. 
FURTHERMORE, UNTIL NOW, THE CONSTITUTION HAS PERMITTED THE ACCUSED TO
BE FINGERPRINTED AND TO BE IDENTIFIED IN A LINE-UP OR IN THE COURTROOM
ITSELF. 

THE COURT CHOOSES TO IGNORE THESE MATTERS AND TO RELY ON THE VIRTUES
AND MORALITY OF A SYSTEM OF CRIMINAL LAW ENFORCEMENT WHICH DOES NOT
DEPEND ON THE "CONFESSION."  NO SUCH JUDGMENT IS TO BE FOUND IN THE
CONSTITUTION.  IT MIGHT BE APPROPRIATE FOR A LEGISLATURE TO PROVIDE
THAT A SUSPECT SHOULD NOT BE CONSULTED DURING A CRIMINAL INVESTIGATION;
THAT AN ACCUSED SHOULD NEVER BE CALLED BEFORE A GRAND JURY TO ANSWER,
EVEN IF HE WANTS TO, WHAT MAY WELL BE INCRIMINATING QUESTIONS; AND THAT
NO PERSON, WHETHER HE BE A SUSPECT, GUILTY CRIMINAL OR INNOCENT
BYSTANDER, SHOULD BE PUT TO THE ORDEAL OF RESPONDING TO ORDERLY
NONCOMPULSORY INQUIRY BY THE STATE.  BUT THIS IS NOT THE SYSTEM OUR
CONSTITUTION REQUIRES.  THE ONLY "INQUISITIONS" THE CONSTITUTION
FORBIDS ARE THOSE WHICH COMPEL INCRIMINATION.  EXCOBEDO'S STATEMENTS
WERE NOT COMPELLED AND THE COURT DOES NOT HOLD THAT THEY WERE. 

THIS NEW AMERICAN JUDGES' RULE, WHICH IS TO BE APPLIED IN BOTH
FEDERAL AND STATE COURTS, IS PERHAPS THOUGHT TO BE A NECESSARY
SAFEGUARD AGAINST THE POSSIBILITY OF EXTORTED CONFESSIONS.  TO THIS
EXTENT IT REFLECTS A DEEP-SEATED DISTRUST OF LAW ENFORCEMENT OFFICERS
EVERYWHERE, UNSUPPORTED BY RELEVANT DATA OR CURRENT MATERIAL BASED UPON
OUR OWN EXPERIENCE.  OBVIOUSLY LAW ENFORCEMENT OFFICERS CAN MAKE
MISTAKES AND EXCEED THEIR AUTHORITY, AS TODAY'S DECISION SHOWS THAT
EVEN JUDGES CAN DO, BUT I HAVE SOMEWHAT MORE FAITH THAN THE COURT
EVIDENTLY HAS IN THE ABILITY AND DESIRE OF PROSECUTORS AND OF THE POWER
OF THE APPELLATE COURTS TO DISCERN AND CORRECT SUCH VIOLATIONS OF THE
LAW. 

THE COURT MAY BE CONCERNED WITH A NARROWER MATTER:  THE UNKNOWING
DEFENDANT WHO RESPONDS TO POLICE QUESTIONING BECAUSE HE MISTAKENLY
BELIEVES THAT HE MUST AND THAT HIS ADMISSIONS WILL NOT BE USED AGAINST
HIM.  BUT THIS WORRY HARDLY CALLS FOR THE BROADSIDE THE COURT HAS NOW
FIRED.  THE FAILURE TO INFORM AN ACCUSED THAT HE NEED NOT ANSWER AND
THAT HIS ANSWERS MAY BE USED AGAINST HIM IS VERY RELEVANT INDEED TO
WHETHER THE DISCLOSURES ARE COMPELLED.  CASES IN THIS COURT, TO SAY THE
LEAST, HAVE NEVER PLACED A PREMIUM ON IGNORANCE OF CONSTITUTIONAL
RIGHTS.  IF AN ACCUSED IS TOLD HE MUST ANSWER AND DOES NOT KNOW BETTER,
IT WOULD BE VERY DOUBTFUL THAT THE RESULTING ADMISSIONS COULD BE USED
AGAINST HIM.  WHEN THE ACCUSED HAS NOT BEEN INFORMED OF HIS RIGHT AT
ALL THE COURT CHARACTERISTICALLY AND PROPERLY LOOKS VERY CLOSELY AT THE
SURROUNDING CIRCUMSTANCES.  SEE WARD V. TEXAS, 316 U.S. 547; HALEY V.
OHIO, 332 U.S. 596; PAYNE V. ARKANSAS, 356 U.S. 560.  I WOULD CONTINUE
TO DO SO.  BUT IN THIS CASE DANNY ESCOBEDO KNEW FULL WELL THAT HE DID
NOT HAVE TO ANSWER AND KNEW FULL WELL THAT HIS LAWYER HAD ADVISED HIM
NOT TO ANSWER. 

I DO NOT SUGGEST FOR A MOMENT THAT LAW ENFORCEMENT WILL BE DESTROYED
BY THE RULE ANNOUNCED TODAY.  THE NEED FOR PEACE AND ORDER IS TOO
INSISTENT FOR THAT.  BUT IT WILL BE CRIPPLED AND ITS TASK MADE A GREAT
DEAL MORE DIFFICULT, ALL IN MY OPINION, FOR UNSOUND, UNSTATED REASONS,
WHICH CAN FIND NO HOME IN ANY OF THE PROVISIONS OF THE CONSTITUTION. 
..END :






















APTHEKER V. SECRETARY OF STATE 378 U.S. 500 


NO. 461.  ARGUED APRIL 21, 1964.  - DECIDED JUNE 22, 1964.  - 219 F.
SUPP. 709, REVERSED AND REMANDED. 


APPELLANTS, NATIVE-BORN CITIZENS AND RESIDENTS OF UNITED STATES, ARE
RANKING OFFICIALS OF THE COMMUNIST PARTY OF THE UNITED STATES.  AFTER
HEARINGS UNDER STATE DEPARTMENT REGULATIONS, APPELLANTS' PASSPORTS WERE
REVOKED UNDER SEC. 6 OF THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950,
WHICH PROVIDES THAT WHEN A COMMUNIST ORGANIZATION IS REGISTERED, OR
UNDER FINAL ORDER TO REGISTER, IT SHALL BE UNLAWFUL FOR ANY MEMBER WITH
KNOWLEDGE OR NOTICE THEREOF TO APPLY FOR OR USE A PASSPORT. 
APPELLANTS FILED SUIT ASKING THAT SEC. 6 BE DECLARED UNCONSTITUTIONAL
AS A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT AND
THAT THE SECRETARY OF STATE BE ORDERED TO ISSUE PASSPORTS TO THEM.  A
THREE-JUDGE DISTRICT COURT DENIED RELIEF.  HELD: 

1.  SECTION 6 IS UNCONSTITUTIONAL ON ITS FACE, FOR IT TOO BROADLY AND
INDISCRIMINATELY TRANSGRESSES THE LIBERTY GUARANTEED BY THE FIFTH
AMENDMENT.  PP. 505-514. 

(A)  THE RIGHT TO TRAVEL AT HOME AND ABROAD IS AN IMPORTANT ASPECT OF
LIBERTY OF WHICH A CITIZEN CANNOT BE DEPRIVED WITHOUT DUE PROCESS OF
LAW.  KENT V. DULLES, 357 U.S. 116, FOLLOWED.  P. 505. 

(B)  UNDER EXISTING LAWS, DENIAL OF A PASSPORT EFFECTIVELY PROHIBITS
TRAVEL ANYWHERE IN THE WORLD OUTSIDE THE WESTERN HEMISPHERE.  P. 507. 

(C)  THOUGH THE UNDERLYING PURPOSE OF SEC. 6 IS THE PROTECTION OF
NATIONAL SECURITY, THE ATTAINMENT OF THAT END CANNOT BE REALIZED BY
UNDULY INFRINGING UPON CONSTITUTIONAL FREEDOMS.  PP. 508-509. 

(D)  SECTION 6 APPLIES TO EVERY MEMBER OF A "COMMUNIST-ACTION" OR
"COMMUNIST-FRONT" ORGANIZATION WHETHER OR NOT HE BELIEVES OR KNOWS THAT
HE IS ASSOCIATED WITH SUCH AN ORGANIZATION OR THAT THE ORGANIZATION
SEEKS TO FURTHER THE AIMS OF WORLD COMMUNISM.  PP.  509-510. 

(E)  ALSO IRRELEVANT UNDER SEC. 6 IS THE MEMBER'S DEGREE OF ACTIVITY
AND HIS COMMITMENT TO THE ORGANIZATION'S PURPOSES.  P. 510. 

(F)  SECTION 6 CREATES AN IRREBUTTABLE PRESUMPTION THAT ALL MEMBERS
OF COMMUNIST ORGANIZATIONS WILL ENGAGE IN ACTIVITIES ENDANGERING OUR
SECURITY IF GIVEN PASSPORTS.  P. 511. 

(G)  THE PROSCRIPTION OF SEC. 6 APPLIES REGARDLESS OF THE TRAVELER'S
PURPOSE OR DESTINATION.  PP. 511-512. 

(H)  CONGRESS COULD HAVE CHOSEN LESS DRASTIC MEANS OF ACHIEVING THE
NATIONAL SECURITY OBJECTIVE WITHOUT SUCH SWEEPING ABRIDGMENT OF
LIBERTY.  PP. 512-514. 

2.  SECTION 6 CANNOT BE HELD CONSTITUTIONAL AS APPLIED TO THESE
APPELLANTS, FOR SUCH A "CONSTRUCTION" WOULD REQUIRE SUBSTANTIAL
REWRITING OF THE STATUTE AND WOULD INJECT AN ELEMENT OF VAGUENESS INTO
ITS SCOPE.  SINCE FREEDOM OF TRAVEL IS CLOSELY AKIN TO FREEDOM OF
SPEECH AND ASSOCIATION, APPELLANTS SHOULD NOT BE REQUIRED TO
DEMONSTRATE THAT CONGRESS COULD NOT HAVE WRITTEN A STATUTE
CONSTITUTIONALLY PROHIBITING THEIR TRAVEL.  PP. 515-517. 

APTHEKER ET AL. V. SECRETARY OF STATE. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL INVOLVES A SINGLE QUESTION:  THE CONSTITUTIONALITY OF
SEC. 6 OF THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, 64 STAT. 993,
50 U.S.C. SEC. 785.  SECTION 6 PROVIDES IN PERTINENT PART THAT: 

"(A)  WHEN A COMMUNIST ORGANIZATION (FN1)  ...  IS REGISTERED, OR
THERE IS IN EFFECT A FINAL ORDER OF THE BOARD REQUIRING SUCH
ORGANIZATION TO REGISTER, IT SHALL BE UNLAWFUL FOR ANY MEMBER OF SUCH
ORGANIZATION, WITH KNOWLEDGE OR NOTICE THAT SUCH ORGANIZATION IS SO
REGISTERED OR THAT SUCH ORDER HAS BECOME FINAL: 

"(1)  TO MAKE APPLICATION FOR A PASSPORT, OR THE RENEWAL OF A
PASSPORT, TO BE ISSUED OR RENEWED BY OR UNDER THE AUTHORITY OF THE
UNITED STATES; OR: 

"(2)  TO USE OR ATTEMPT TO USE ANY SUCH PASSPORT."  (FN2) 

20, 1961, WHEN A FINAL ORDER OF THE SUBVERSIVE ACTIVITIES CONTROL BOARD
ISSUED DIRECTING THE COMMUNIST PARTY OF THE UNITED STATES TO REGISTER
UNDER SEC. 7 OF THE SUBVERSIVE ACTIVITIES CONTROL ACT.  THE
REGISTRATION ORDER HAD BEEN UPHELD EARLIER IN 1961 BY THIS COURT'S
DECISION IN COMMUNIST PARTY OF THE UNITED STATES V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, 367 U.S. 1.  PRIOR TO ISSUANCE OF THE FINAL
REGISTRATION ORDER BOTH APPELLANTS, WHO ARE NATIVE-BORN CITIZENS AND
RESIDENTS OF THE UNITED STATES, HAD HELD VALID PASSPORTS. 
SUBSEQUENTLY, ON JANUARY 22, 1962, THE ACTING DIRECTOR OF THE PASSPORT
OFFICE NOTIFIED APPELLANTS THAT THEIR PASSPORTS WERE REVOKED BECAUSE
THE DEPARTMENT OF STATE BELIEVED THAT THEIR USE OF THE PASSPORTS WOULD
VIOLATE SEC. 6.  APPELLANTS WERE ALSO NOTIFIED OF THEIR RIGHT TO SEEK
ADMINISTRATIVE REVIEW OF THE REVOCATIONS UNDER DEPARTMENT OF STATE
REGULATIONS. 

APPELLANTS REQUESTED AND RECEIVED HEARINGS TO REVIEW THE REVOCATIONS
OF THEIR PASSPORTS.  THE RESPECTIVE HEARING EXAMINERS CONCLUDED THAT
"THE DEPARTMENT OF STATE HAD REASON TO BELIEVE THAT APPELLANTS ARE
WITHIN THE PURVIEW OF SECTION 6(A)(2) OF THE SUBVERSIVE ACTIVITIES
CONTROL ACT  ... AND AS A RESULT THEREOF  ...  USE OF A PASSPORT WOULD
BE IN VIOLATION OF THE LAW."  ON THE BASIS OF THIS CONCLUSION THE
EXAMINERS RECOMMENDED THAT THE PASSPORT REVOCATIONS BE SUSTAINED. 
(FN3)  BOTH APPELLANTS APPEALED TO THE BOARD OF PASSPORT APPEALS WHICH
RECOMMENDED AFFIRMANCE OF THE REVOCATIONS.  THE SECRETARY OF STATE
SUBSEQUENTLY APPROVED THE RECOMMENDATIONS OF THE BOARD.  THE SECRETARY
STATED THAT HE "RELIED SOLELY ON THE EVIDENCE IN THE RECORD" AND THAT,
AS THE BASIS OF HIS DECISION, HE: 

"SPECIFICALLY ADOPTED AS HIS OWN THE BOARD'S FINDING OF FACT THAT 'AT
ALL MATERIAL TIMES APPELLANTS WERE MEMBERS OF THE COMMUNIST PARTY OF
THE UNITED STATES WITH KNOWLEDGE OR NOTICE THAT SUCH ORGANIZATION HAD
BEEN REQUIRED TO REGISTER AS A COMMUNIST ORGANIZATION UNDER THE
SUBVERSIVE ACTIVITIES CONTROL ACT.'" 

APPELLANTS THEREUPON FILED SEPARATE COMPLAINTS SEEKING DECLARATORY
AND INJUNCTIVE RELIEF IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA.  THE COMPLAINTS, WHICH HAVE BEEN CONSIDERED
TOGETHER, ASKED THAT JUDGMENTS BE ENTERED DECLARING SEC. 6 OF THE
SUBVERSIVE ACTIVITIES CONTROL ACT UNCONSTITUTIONAL AND ORDERING THE
SECRETARY OF STATE TO ISSUE PASSPORTS TO APPELLANTS.  EACH APPELLANT
PLAINTIFF ALLEGED THAT SEC. 6 WAS UNCONSTITUTIONAL AS, INTER ALIA, "A
DEPRIVATION WITHOUT DUE PROCESS OF LAW OF PLAINTIFF'S CONSTITUTIONAL
LIBERTY TO TRAVEL ABROAD, IN VIOLATION OF THE FIFTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES."  (FN4)  APPELLANTS CONCEDED THAT
THE SECRETARY OF STATE HAD AN ADEQUATE BASIS FOR FINDING THAT THEY WERE
MEMBERS OF THE COMMUNIST PARTY OF THE UNITED STATES AND THAT THE ACTION
REVOKING THEIR PASSPORTS WAS PROPER IF SEC. 6 WAS CONSTITUTIONAL.  THE
PARTIES AGREED THAT ALL ADMINISTRATIVE REMEDIES HAD BEEN EXHAUSTED AND
THAT IT WOULD BE FUTILE, AND INDEED A CRIMINAL OFFENSE, FOR EITHER
APPELLANT TO APPLY FOR A PASSPORT WHILE REMAINING A MEMBER OF THE
COMMUNIST PARTY. 

THE THREE-JUDGE DISTRICT COURT, WHICH WAS CONVENED TO REVIEW THE
CONSTITUTIONAL QUESTION, REJECTED APPELLANTS' CONTENTIONS, SUSTAINED
THE CONSTITUTIONALITY OF SEC. 6 OF THE CONTROL ACT, AND GRANTED THE
SECRETARY'S MOTION FOR SUMMARY JUDGMENT.  219 F. SUPP. 709.  THE COURT
CONCLUDED THAT: 

"THE ENACTMENT BY CONGRESS OF SECTION 6, WHICH PROHIBITS THESE
PLAINTIFFS FROM OBTAINING PASSPORTS SO LONG AS THEY ARE MEMBERS OF AN
ORGANIZATION - IN THIS CASE THE COMMUNIST PARTY - UNDER A FINAL ORDER
TO REGISTER WITH THE ATTORNEY GENERAL  ...  IS A VALID EXERCISE OF THE
POWER OF CONGRESS TO PROTECT AND PRESERVE OUR GOVERNMENT AGAINST THE
THREAT POSED BY THE WORLD COMMUNIST MOVEMENT AND THAT THE REGULATORY
SCHEME BEARS A REASONABLE RELATION THERETO."  ID., AT 714. 

THIS COURT NOTED PROBABLE JURISDICTION.  375 U.S. 928. 

APPELLANTS ATTACK SEC. 6, BOTH ON ITS FACE AND AS APPLIED, AS AN
UNCONSTITUTIONAL DEPRIVATION OF THE LIBERTY GUARANTEED IN THE BILL OF
RIGHTS.  THE GOVERNMENT, WHILE CONCEDING THAT THE RIGHT TO TRAVEL IS
PROTECTED BY THE FIFTH AMENDMENT, CONTENDS THAT THE DUE PROCESS CLAUSE
DOES NOT PREVENT THE REASONABLE REGULATION OF LIBERTY AND THAT SEC. 6
IS A REASONABLE REGULATION BECAUSE OF ITS RELATION TO THE DANGER THE
WORLD COMMUNIST MOVEMENT PRESENTS FOR OUR NATIONAL SECURITY. 
ALTERNATIVELY, THE GOVERNMENT ARGUES THAT "WHETHER OR NOT DENIAL OF
PASSPORTS TO SOME MEMBERS OF THE COMMUNIST PARTY MIGHT BE DEEMED NOT
REASONABLY RELATED TO NATIONAL SECURITY, SURELY SECTION 6 WAS
REASONABLE AS APPLIED TO THE TOP-RANKING PARTY LEADERS INVOLVED HERE." 

WE HOLD, FOR THE REASONS STATED BELOW, THAT SEC. 6 OF THE CONTROL ACT
TOO BROADLY AND INDISCRIMINATELY RESTRICTS THE RIGHT TO TRAVEL AND
THEREBY ABRIDGES THE LIBERTY GUARANTEED BY THE FIFTH AMENDMENT. 

       I. 

IN 1958 IN KENT V. DULLES, 357 U.S. 116, 127, THIS COURT DECLARED
THAT THE RIGHT TO TRAVEL ABROAD IS "AN IMPORTANT ASPECT OF THE
CITIZEN'S 'LIBERTY'" GUARANTEED IN THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  THE COURT STATED THAT: 

"THE RIGHT TO TRAVEL IS A PART OF THE 'LIBERTY' OF WHICH THE CITIZEN
CANNOT BE DEPRIVED WITHOUT DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT
...  .  FREEDOM OF MOVEMENT ACROSS FRONTIERS IN EITHER DIRECTION, AND
INSIDE FRONTIERS AS WELL, WAS A PART OF OUR HERITAGE.  TRAVEL ABROAD,
LIKE TRAVEL WITHIN THE COUNTRY,  ...  MAY BE AS CLOSE TO THE HEART OF
THE INDIVIDUAL AS THE CHOICE OF WHAT HE EATS, OR WEARS, OR READS. 
FREEDOM OF MOVEMENT IS BASIC IN OUR SCHEME OF VALUES."  (FN5)  ID., AT
125-126. 

IN KENT, HOWEVER, THE COURT CONCLUDED THAT CONGRESS HAD NOT CONFERRED
AUTHORITY UPON THE SECRETARY OF STATE TO DENY PASSPORTS BECAUSE OF
ALLEGED COMMUNIST BELIEFS AND ASSOCIATIONS.  THEREFORE, ALTHOUGH THE
DECISION PROTECTED THE CONSTITUTIONAL RIGHT TO TRAVEL, THE COURT DID
NOT EXAMINE "THE EXTENT TO WHICH IT CAN BE CURTAILED.'  ID., AT 127. 
THE COURT, REFERRING TO SEC. 6 OF THE SUBVERSIVE ACTIVITIES CONTROL
ACT, NOTED THAT "THE ONLY LAW WHICH CONGRESS HAS PASSED EXPRESSLY
CURTAILING THE MOVEMENT OF COMMUNISTS ACROSS OUR BORDERS HAS NOT YET
BECOME EFFECTIVE."  ID., AT 130.  TWO YEARS LATER IN COMMUNIST PARTY OF
THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL BOARD, SUPRA, THIS
COURT REVIEWED AND UPHELD THE REGISTRATION REQUIREMENT OF SEC. 7 OF THE
CONTROL ACT.  THE COURT, HOWEVER, DID NOT PASS UPON THE "VARIOUS
CONSEQUENCES OF THE PARTY'S REGISTRATION FOR ITS INDIVIDUAL MEMBERS,"
ID., AT 70, BECAUSE: 

"IT IS WHOLLY SPECULATIVE NOW TO FORESHADOW WHETHER, OR UNDER WHAT
CONDITIONS, A MEMBER OF THE PARTY MAY IN THE FUTURE APPLY FOR A
PASSPORT, OR SEEK GOVERNMENT OR DEFENSE-FACILITY OR LABOR-UNION
EMPLOYMENT, OR, BEING AN ALIEN, BECOME A PARTY TO A NATURALIZATION OR A
DENATURALIZATION PROCEEDING.   NONE OF THESE THINGS MAY HAPPEN.  IF
THEY DO, APPROPRIATE ADMINISTRATIVE AND JUDICIAL PROCEDURES WILL BE
AVAILABLE TO TEST THE CONSTITUTIONALITY OF APPLICATIONS OF PARTICULAR
NOTHING JUSTIFIED PREVISIONING THOSE ISSUES NOW."  ID., AT 79. 

THE PRESENT CASE, THEREFORE, IS THE FIRST IN WHICH THIS COURT HAS
BEEN CALLED UPON TO CONSIDER THE CONSTITUTIONALITY OF THE RESTRICTIONS
WHICH SEC. 6 IMPOSES ON THE RIGHT TO TRAVEL. 

THE SUBSTANTIALITY OF THE RESTRICTIONS CANNOT BE DOUBTED.  THE DENIAL
OF A PASSPORT, GIVEN EXISTING DOMESTIC AND FOREIGN LAWS, IS A SEVERE
RESTRICTION UPON, AND IN EFFECT A PROHIBITION AGAINST, WORLD-WIDE
FOREIGN TRAVEL.  PRESENT LAWS AND REGULATIONS MAKE IT A CRIME FOR A
UNITED STATES CITIZEN TO TRAVEL OUTSIDE THE WESTERN HEMISPHERE OR TO
CUBA WITHOUT A PASSPORT.  BY ITS PLAIN IMPORT SEC. 6 OF THE CONTROL ACT
EFFECTIVELY PROHIBITS TRAVEL ANYWHERE IN THE WORLD OUTSIDE THE WESTERN
HEMISPHERE BY MEMBERS OF ANY "COMMUNIST ORGANIZATION" - INCLUDING
"COMMUNIST-ACTION" AND "COMMUNIST-FRONT" ORGANIZATIONS.  (FN6)  THE
RESTRICTIVE EFFECT OF THE LEGISLATION CANNOT BE GAINSAID BY
EMPHASIZING, AS THE GOVERNMENT SEEMS TO DO, THAT A MEMBER OF A
REGISTERING ORGANIZATION COULD RECAPTURE HIS FREEDOM TO TRAVEL BY
SIMPLY IN GOOD FAITH ABANDONING HIS MEMBERSHIP IN THE ORGANIZATION. 
SINCE FREEDOM OF ASSOCIATION IS ITSELF GUARANTEED IN THE FIRST
AMENDMENT, (FN7) RESTRICTIONS IMPOSED UPON THE RIGHT TO TRAVEL CANNOT
BE DISMISSED BY ASSERTING THAT THE RIGHT TO TRAVEL COULD BE FULLY
EXERCISED IF THE INDIVIDUAL WOULD FIRST YIELD UP HIS MEMBERSHIP IN A
GIVEN ASSOCIATION. 

ALTHOUGH PREVIOUS CASES HAVE NOT INVOLVED THE CONSTITUTIONALITY OF
STATUTORY RESTRICTIONS UPON THE RIGHT TO TRAVEL ABROAD, THERE ARE WELL
ESTABLISHED PRINCIPLES BY WHICH TO TEST WHETHER THE RESTRICTIONS HERE
IMPOSED ARE CONSISTENT WITH THE LIBERTY GUARANTEED IN THE FIFTH
AMENDMENT.  IT IS A FAMILIAR AND BASIC PRINCIPLE, RECENTLY REAFFIRMED
IN NAACP V. ALABAMA, 377 U.S. 288, 307, THAT "A GOVERNMENTAL PURPOSE TO
CONTROL OR PREVENT ACTIVITIES CONSTITUTIONALLY SUBJECT TO STATE
REGULATION MAY NOT BE ACHIEVED BY MEANS WHICH SWEEP UNNECESSARILY
BROADLY AND THEREBY INVADE THE AREA OF PROTECTED FREEDOMS."  SEE, E.G.,
NAACP V. BUTTON, 371 U.S. 415, 438; LOUISIANA EX REL. GREMILLION V.
NAACP, 366 U.S. 293; SHELTON V. TUCKER, 364 U.S. 479, 488; SCHWARE V.
BOARD OF BAR EXAMINERS, 353 U.S. 232, 239; MARTIN V. STRUTHERS, 319
U.S. 141, 146-149; CANTWELL V. CONNECTICUT, 310 U.S. 296, 304-307;
SCHNEIDER V. STATE, 308 U.S. 147, 161, 165.  IN APPLYING THIS PRINCIPLE
THE COURT IN NAACP V. ALABAMA, SUPRA, REFERRED TO THE CRITERIA
ENUNCIATED IN SHELTON V. TUCKER, SUPRA, AT 488: 

"EVEN THOUGH THE GOVERNMENTAL PURPOSE BE LEGITIMATE AND SUBSTANTIAL,
THAT PURPOSE CANNOT BE PURSUED BY MEANS THAT BROADLY STIFLE FUNDAMENTAL
PERSONAL LIBERTIES WHEN THE END CAN BE MORE NARROWLY ACHIEVED.  THE
BREADTH OF LEGISLATIVE ABRIDGMENT MUST BE VIEWED IN THE LIGHT OF LESS
DRASTIC MEANS FOR ACHIEVING THE SAME BASIC PURPOSE." 

THIS PRINCIPLE REQUIRES THAT WE CONSIDER THE CONGRESSIONAL PURPOSE
UNDERLYING SEC. 6 OF THE CONTROL ACT.  (FN8)  THE GOVERNMENT EMPHASIZES
THAT THE LEGISLATION IN QUESTION FLOWS, AS THE STATUTE ITSELF DECLARES,
FROM THE CONGRESSIONAL DESIRE TO PROTECT OUR NATIONAL SECURITY.  THAT
CONGRESS UNDER THE CONSTITUTION HAS POWER TO SAFEGUARD OUR NATION'S
SECURITY IS OBVIOUS AND UNARGUABLE.  CF. KENNEDY V. MENDOZA-MARTINEZ,
372 U.S. 144, 159-160.  AS WE SAID IN MENDOZA-MARTINEZ, "WHILE THE
CONSTITUTION PROTECTS AGAINST INVASIONS OF INDIVIDUAL RIGHTS, IT IS NOT
A SUICIDE PACT."  ID., AT 160.  AT THE SAME TIME THE CONSTITUTION
REQUIRES THAT THE POWERS OF GOVERNMENT "MUST BE SO EXERCISED AS NOT, IN
ATTAINING A PERMISSIBLE END, UNDULY TO INFRINGE" A CONSTITUTIONALLY
PROTECTED FREEDOM.  CANTWELL V. CONNECTICUT, SUPRA, AT 304. 

HAS REGISTERED OR HAS BEEN ORDERED TO REGISTER COMMITS A CRIME IF HE
ATTEMPTS TO USE OR OBTAIN A UNITED STATES PASSPORT.  THE SECTION
APPLIES TO MEMBERS WHO ACT "WITH KNOWLEDGE OR NOTICE" THAT THE
ORGANIZATION IS UNDER A FINAL REGISTRATION ORDER.  "NOTICE" IS
SPECIFICALLY DEFINED IN SEC. 13(K).  THAT SECTION PROVIDES THAT
PUBLICATION IN THE FEDERAL REGISTER OF THE FACT OF REGISTRATION OR OF
ISSUANCE OF A FINAL REGISTRATION ORDER "SHALL CONSTITUTE NOTICE TO ALL
MEMBERS OF SUCH ORGANIZATION THAT SUCH ORDER HAS BECOME FINAL."  THUS
THE TERMS OF SEC. 6 APPLY WHETHER OR NOT THE MEMBER ACTUALLY KNOWS OR
BELIEVES THAT HE IS ASSOCIATED WITH WHAT IS DEEMED TO BE A "COMMUNIST
ACTION" OR A "COMMUNIST-FRONT" ORGANIZATION.  THE SECTION ALSO APPLIES
WHETHER OR NOT ONE KNOWS OR BELIEVES THAT HE IS ASSOCIATED WITH AN
ORGANIZATION OPERATING TO FURTHER AIMS OF THE WORLD COMMUNIST MOVEMENT
AND "TO ESTABLISH A COMMUNIST TOTALITARIAN DICTATORSHIP IN THE
COUNTRIES THROUGHOUT THE WORLD  ...  ."  64 STAT. 987, 50 U.S.C. SEC.
781(1).  THE PROVISION THEREFORE SWEEPS WITHIN ITS PROHIBITION BOTH
KNOWING AND UNKNOWING MEMBERS.  IN RELATED CONTEXTS THIS COURT HAS HAD
OCCASION TO CONSIDER THE SUBSTANTIALITY OF THE RELATIONSHIP BETWEEN AN
INDIVIDUAL AND A GROUP WHERE, AS HERE, THE FACT OF MEMBERSHIP IN THAT
GROUP HAS BEEN MADE THE SOLE CRITERION FOR LIMITING THE INDIVIDUAL'S
FREEDOM.  IN WIEMAN V. UPDEGRAFF, 344 U.S. 183, THE COURT HELD THAT THE
DUE PROCESS GUARANTEE OF THE CONSTITUTION WAS VIOLATED WHEN A STATE, IN
AN ATTEMPT TO BAR DISLOYAL INDIVIDUALS FROM ITS EMPLOY, EXCLUDED
PERSONS SOLELY ON THE BASIS OF ORGANIZATIONAL MEMBERSHIPS WITHOUT
REGARD TO THEIR KNOWLEDGE CONCERNING THE ORGANIZATIONS TO WHICH THEY
HAD BELONGED.  THE COURT CONCLUDED THAT:  "INDISCRIMINATE
CLASSIFICATION OF INNOCENT WITH KNOWING ACTIVITY MUST FALL AS AN
ASSERTION OF ARBITRARY POWER."  ID., AT 191.    SECTION 6 ALSO RENDERS
IRRELEVANT THE MEMBER'S DEGREE OF ACTIVITY IN THE ORGANIZATION AND HIS
COMMITMENT TO ITS PURPOSE.  THESE FACTORS, LIKE KNOWLEDGE, WOULD BEAR
ON THE LIKELIHOOD THAT TRAVEL BY SUCH A PERSON WOULD BE ATTENDED BY THE
TYPE OF ACTIVITY WHICH CONGRESS SOUGHT TO CONTROL.  AS THE COURT HAS
ELSEWHERE NOTED, "MEN IN ADHERING TO A POLITICAL PARTY OR OTHER
ORGANIZATION NOTORIOUSLY DO NOT SUBSCRIBE UNQUALIFIEDLY TO ALL OF ITS
PLATFORMS OR ASSERTED PRINCIPLES."  CF. SCHNEIDERMAN V. UNITED STATES,
320 U.S. 118, 136.  IT WAS IN THIS VEIN THAT THE COURT IN SCHWARE V.
BOARD OF BAR EXAMINERS, 353 U.S., AT 246, STATED THAT EVEN "ASSUMING
THAT SOME MEMBERS OF THE COMMUNIST PARTY ...  HAD ILLEGAL AIMS AND
ENGAGED IN ILLEGAL ACTIVITIES, IT CANNOT AUTOMATICALLY BE INFERRED THAT
ALL MEMBERS SHARED THEIR EVIL PURPOSES OR PARTICIPATED IN THEIR ILLEGAL
CONDUCT."  SECTION 6, HOWEVER, ESTABLISHES AN IRREBUTTABLE PRESUMPTION
THAT INDIVIDUALS WHO ARE MEMBERS OF THE SPECIFIED ORGANIZATIONS WILL,
IF GIVEN PASSPORTS, ENGAGE IN ACTIVITIES INIMICAL TO THE SECURITY OF
THE UNITED STATES.  (FN9) 

IN ADDITION TO THE ABSENCE OF CRITERIA LINKING THE BARE FACT OF
MEMBERSHIP TO THE INDIVIDUAL'S KNOWLEDGE, ACTIVITY OR COMMITMENT, SEC.
6 ALSO EXCLUDES OTHER CONSIDERATIONS WHICH MIGHT MORE CLOSELY RELATE
THE DENIAL OF PASSPORTS TO THE STATED PURPOSE OF THE LEGISLATION.  THE
PROHIBITION OF SEC. 6 APPLIES REGARDLESS OF THE PURPOSES FOR WHICH AN
INDIVIDUAL WISHES TO TRAVEL.  UNDER THE STATUTE IT IS A CRIME FOR A
NOTIFIED MEMBER OF A REGISTERED ORGANIZATION TO APPLY FOR A PASSPORT TO
TRAVEL ABROAD TO VISIT A SICK RELATIVE, TO RECEIVE MEDICAL TREATMENT,
OR FOR ANY OTHER WHOLLY INNOCENT PURPOSE.  (FN10)  IN DETERMINING
WHETHER THERE HAS BEEN AN ABRIDGMENT OF THE FIFTH AMENDMENT'S GUARANTEE
OF LIBERTY, THIS COURT MUST RECOGNIZE THE DANGER OF PUNISHING A MEMBER
OF A COMMUNIST ORGANIZATION "FOR HIS ADHERENCE TO LAWFUL AND
CONSTITUTIONALLY PROTECTED PURPOSES, BECAUSE OF OTHER AND UNPROTECTED
PURPOSES WHICH HE DOES NOT NECESSARILY SHARE."  NOTO V. UNITED STATES,
367 U.S. 290, 299-300; SCALES V. UNITED STATES, 367 U.S. 203, 229-230. 
IN ADDITION IT MUST BE NOTED THAT SEC. 6 APPLIES TO A MEMBER REGARDLESS
OF THE SECURITY-SENSITIVITY OF THE AREAS IN WHICH HE WISHES TO TRAVEL. 
AS A RESULT, IF A NOTIFIED MEMBER OF A REGISTERED ORGANIZATION WERE TO
APPLY FOR A POSSPORT TO VISIT A RELATIVE IN IRELAND, OR TO READ RARE
MANUSCRIPTS IN THE BODLEIAN LIBRARY OF OXFORD UNIVERSITY, THE APPLICANT
WOULD BE GUILTY OF A CRIME; WHEREAS, IF HE WERE TO TRAVEL TO CANADA OR
LATIN AMERICA TO CARRY ON CRIMINAL ACTIVITIES DIRECTED AGAINST THE
UNITED STATES, HE COULD DO SO FREE FROM THE PROHIBITIVE REACH OF SEC.
6. 

IN DETERMINING THE CONSTITUTIONALITY OF SEC. 6, IT IS ALSO IMPORTANT
TO CONSIDER THAT CONGRESS HAS WITHIN ITS POWER "LESS DRASTIC" (FN11)
MEANS OF ACHIEVING THE CONGRESSIONAL OBJECTIVE OF SAFEGUARDING OUR
NATIONAL SECURITY.  SHELTON V. TUCKER, 364 U.S., AT 488.  THE FEDERAL
EMPLOYEE LOYALTY PROGRAM, WHICH WAS BEFORE THIS COURT IN JOINT ANTI
FACIST REFUGEE COMM. V. MCGRATH, 341 U.S. 123, PROVIDES AN EXAMPLE. 
UNDER EXECUTIVE ORDER NO. 9835, MEMBERSHIP IN A COMMUNIST ORGANIZATION
IS NOT CONSIDERED CONCLUSIVE BUT ONLY AS ONE FACTOR TO BE WEIGHED IN
DETERMINING THE LOYALTY OF AN APPLICANT OR EMPLOYEE.  (FN12)  IT IS
RELEVANT TO NOTE THAT LESS THAN A MONTH AFTER THE DECISION IN KENT V.
DULLES, SUPRA, PRESIDENT EISENHOWER SENT A MESSAGE TO CONGRESS STATING
THAT: "ANY LIMITATIONS ON THE RIGHT TO TRAVEL CAN ONLY BE TOLERATED IN
TERMS OF OVERRIDING REQUIREMENTS OF OUR NATIONAL SECURITY, AND MUST BE
SUBJECT TO SUBSTANTIVE AND PROCEDURAL GUARANTIES."  MESSAGE FROM THE
PRESIDENT - ISSUANCE OF PASSPORTS, H. DOC.  NO. 417, 85TH CONG., 2D
SESS.,; 104 CONG. REC. 13046.  THE LEGISLATION WHICH THE PRESIDENT
PROPOSED DID NOT MAKE MEMBERSHIP IN A COMMUNIST ORGANIZATION, WITHOUT
MORE, A DISQUALIFICATION FOR OBTAINING A PASSPORT.  S. 4110, H.R.
13318, 85TH CONG., 2D SESS.  IRRESPECTIVE OF VIEWS AS TO THE VALIDITY
OF THIS OR OTHER SUCH PROPOSALS THEY DEMONSTRATE THE CONVICTION OF THE
EXECUTIVE BRANCH THAT OUR NATIONAL SECURITY CAN BE ADEQUATELY PROTECTED
BY MEANS WHICH, WHEN COMPARED WITH SEC. 6, ARE MORE DISCRIMINATELY
TAILORED TO THE CONSTITUTIONAL LIBERTIES OF INDIVIDUALS. 

IN OUR VIEW THE FOREGOING CONSIDERATIONS COMPEL THE CONCLUSION THAT
SEC. 6 OF THE CONTROL ACT IS UNCONSTITUTIONAL ON ITS FACE.  THE
CONGRESS SOUGHT TO CONTROL, SWEEPS TOO WIDELY AND TOO INDISCRIMINATELY
ACROSS THE LIBERTY GUARANTEED IN THE FIFTH AMENDMENT.  THE PROHIBITION
AGAINST TRAVEL IS SUPPORTED ONLY BY A TENUOUS RELATIONSHIP BETWEEN THE
BARE FACT OF ORGANIZATIONAL MEMBERSHIP AND THE ACTIVITY CONGRESS SOUGHT
TO PROSCRIBE.  THE BROAD AND ENVELOPING PROHIBITION INDISCRIMINATELY
EXCLUDES PLAINLY RELEVANT CONSIDERATIONS SUCH AS THE INDIVIDUAL'S
KNOWLEDGE, ACTIVITY, COMMITMENT, AND PURPOSES IN AND PLACES FOR
TRAVEL.  THE SECTION THEREFORE IS PATENTLY NOT A REGULATION "NARROWLY
DRAWN TO PREVENT THE SUPPOSED EVIL," CF. CANTWELL V. CONNECTICUT, 310
U.S., AT 307, YET HERE, AS ELSEWHERE, PRECISION MUST BE THE TOUCHSTONE
OF LEGISLATION SO AFFECTING BASIC FREEDOMS, NAACP V. BUTTON, 371 U.S.,
AT 438. 

                      II. 

THE GOVERNMENT ALTERNATIVELY URGES THAT, IF SEC. 6 CANNOT BE
SUSTAINED ON ITS FACE, THE PROHIBITION SHOULD NEVERTHELESS BE HELD
CONSTITUTIONAL AS APPLIED TO THESE PARTICULAR APPELLANTS.  THE
GOVERNMENT ARGUES THAT "SURELY SECTION 6 WAS REASONABLE AS APPLIED TO
THE TOP-RANKING PARTY LEADERS INVOLVED HERE."  (FN13)  IT IS NOT
DISPUTED THAT APPELLANTS ARE TOP-RANKING LEADERS: APPELLANT APTHEKER IS
EDITOR OF POLITICAL AFFAIRS, THE "THEORETICAL ORGAN" OF THE PARTY IN
THIS COUNTRY AND APPELLANT FLYNN IS CHAIRMAN OF THE PARTY.  (FN14) 

IT MUST BE REMEMBERED THAT "ALTHOUGH THIS COURT WILL OFTEN STRAIN TO
CONSTRUE LEGISLATION SO AS TO SAVE IT AGAINST CONSTITUTIONAL ATTACK, IT
MUST NOT AND WILL NOT CARRY THIS TO THE POINT OF PERVERTING THE PURPOSE
OF A STATUTE  ...  "  OR JUDICIALLY REWRITING IT.  SCALES V. UNITED
STATES, SUPRA, AT 211.  TO PUT THE MATTER ANOTHER WAY, THIS COURT WILL
NOT CONSIDER THE ABSTRACT QUESTION OF WHETHER CONGRESS MIGHT HAVE
ENACTED A VALID STATUTE BUT INSTEAD MUST ASK WHETHER THE STATUTE THAT
CONGRESS DID ENACT WILL PERMISSIBLY BEAR A CONSTRUCTION RENDERING IT
FREE FROM CONSTITUTIONAL DEFECTS. 

THE CLARITY AND PRECISENESS OF THE PROVISION IN QUESTION MAKE IT
IMPOSSIBLE TO NARROW ITS INDISCRIMINATELY CAST AND OVERLY BROAD SCOPE
WITHOUT SUBSTANTIAL REWRITING.  THE SITUATION HERE IS DIFFERENT FROM
THAT IN CASES SUCH AS UNITED STATES V. NATIONAL DAIRY PRODUCTS CORP.,
372 U.S. 29, WHERE THE COURT IS CALLED UPON TO CONSIDER THE CONTENT OF
ALLEGEDLY VAGUE STATUTORY LANGUAGE.  HERE, IN CONTRAST, AN ATTEMPT TO
"CONSTRUE" THE STATUTE AND TO PROBE ITS RECESSES FOR SOME CORE OF
CONSTITUTIONALITY WOULD INJECT AN ELEMENT OF VAGUENESS INTO THE
STATUTE'S SCOPE AND APPLICATION; THE PLAIN WORDS WOULD THUS BECOME
UNCERTAIN IN MEANING ONLY IF COURTS PROCEEDED ON A CASE-BY-CASE BASIS
TO SEPARATE OUT CONSTITUTIONAL FROM UNCONSTITUTIONAL AREAS OF
COVERAGE.  THIS COURSE WOULD NOT BE PROPER, OR DESIRABLE, IN DEALING
WITH A SECTION WHICH SO SEVERELY CURTAILS PERSONAL LIBERTY. 

SINCE THIS CASE INVOLVES A PERSONAL LIBERTY PROTECTED BY THE BILL OF
RIGHTS, WE BELIEVE THAT THE PROPER APPROACH TO LEGISLATION CURTAILING
THAT LIBERTY MUST BE THAT ADOPTED BY THIS COURT IN NAACP V. BUTTON, 371
U.S. 415, AND THORNHILL V. ALABAMA, 310 U.S. 88.  IN NAACP V. BUTTON
THE COURT STATED THAT: 

"IN APPRAISING A STATUTE'S INHIBITORY EFFECT UPON SUCH RIGHTS, THIS
COURT HAS NOT HESITATED TO TAKE INTO ACCOUNT POSSIBLE APPLICATIONS OF
THE STATUTE IN OTHER FACTUAL CONTEXTS BESIDES THAT AT BAR.  THORNHILL
V. ALABAMA, 310 U.S. 88, 97-98; WINTERS V. NEW YORK, 333 U.S. 507, 518
520.  CF. STAUB V. CITY OF BAXLEY, 355 U.S. 313  ...  .  THE
OBJECTIONABLE QUALITY OF VAGUENESS AND OVERBREADTH DOES NOT DEPEND UPON
ABSENCE OF FAIR NOTICE TO A CRIMINALLY ACCUSED OR UPON UNCHANNELED
DELEGATION OF LEGISLATIVE POWERS, BUT UPON THE DANGER OF TOLERATING, IN
THE AREA OF FIRST AMENDMENT FREEDOMS, THE EXISTENCE OF A PENAL STATUTE
SUSCEPTIBLE OF SWEEPING AND IMPROPER APPLICATION.  CF. MARCUS V. SEARCH
WARRANT, 367 U.S. 717, 733.  THESE FREEDOMS ARE DELICATE AND
VULNERABLE, AS WELL AS SUPREMELY PRECIOUS IN OUR SOCIETY.  THE THREAT
OF SANCTIONS MAY DETER THEIR EXERCISE ALMOST AS POTENTLY AS THE ACTUAL
APPLICATION OF SANCTIONS."  371 U.S., AT 432-433. 

FOR ESSENTIALLY THE SAME REASONS THIS COURT HAD CONCLUDED THAT THE
CONSTITUTIONALITY OF THE STATUTE IN THORNHILL V. ALABAMA SHOULD BE
JUDGED ON ITS FACE: 

"AN ACCUSED, AFTER ARREST AND CONVICTION UNDER SUCH A STATUTE (ON ITS
FACE UNCONSTITUTIONALLY ABRIDGING FREEDOM OF SPEECH), DOES NOT HAVE TO
SUSTAIN THE BURDEN OF DEMONSTRATING THAT THE STATE COULD NOT
CONSTITUTIONALLY HAVE WRITTEN A DIFFERENT AND SPECIFIC STATUTE COVERING
HIS ACTIVITIES AS DISCLOSED BY THE CHARGE AND THE EVIDENCE INTRODUCED
AGAINST HIM."  310 U.S., AT 98.  (FN15) 

SIMILARLY, SINCE FREEDOM OF TRAVEL IS A CONSTITUTIONAL LIBERTY
CLOSELY RELATED TO RIGHTS OF FREE SPEECH AND ASSOCIATION, WE BELIEVE
THAT APPELLANTS IN THIS CASE SHOULD NOT BE REQUIRED TO ASSUME THE
BURDEN OF DEMONSTRATING THAT CONGRESS COULD NOT HAVE WRITTEN A STATUTE
CONSTITUTIONALLY PROHIBITING THEIR TRAVEL.  (FN16) 

ACCORDINGLY THE JUDGMENT OF THE THREE-JUDGE DISTRICT COURT IS
REVERSED AND THE CAUSE REMANDED FOR PORCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  PARAGRAPH 5 OF SEC. 3 OF THE ACT PROVIDES THAT:  "FOR THE
PURPOSES OF THIS SUBCHAPTER  ... THE TERM 'COMMUNIST ORGANIZATION'
MEANS ANY COMMUNIST-ACTION ORGANIZATION, COMMUNIST-FRONT ORGANIZATION,
OR COMMUNIST-INFILTRATED ORGANIZATION."  64 STAT. 990, AS AMENDED, 68
STAT. 777, 50 U.S.C. SEC. 782. 

FN2  SECTION 6(B) PROVIDES THAT: 

"WHEN AN ORGANIZATION IS REGISTERED, OR THERE IS IN EFFECT A FINAL
ORDER OF THE BOARD REQUIRING AN ORGANIZATION TO REGISTER, AS A
COMMUNIST-ACTION ORGANIZATION, IT SHALL BE UNLAWFUL FOR ANY OFFICER OR
EMPLOYEE OF THE UNITED STATES TO ISSUE A PASSPORT TO, OR RENEW THE
PASSPORT OF, ANY INDIVIDUAL KNOWING OR HAVING REASON TO BELIEVE THAT
SUCH INDIVIDUAL IS A MEMBER OF SUCH ORGANIZATION." 

THE CRIMINAL PENALTIES FOR VIOLATIONS OF SEC. 6 ARE SPECIFIED IN SEC.
15(C) OF THE ACT WHICH PROVIDES IN PERTINENT PART THAT: 

"ANY INDIVIDUAL WHO VIOLATES ANY PROVISION OF SECTION 5, 6, OR 10 OF
THIS TITLE SHALL, UPON CONVICTION THEREOF, BE PUNISHED FOR EACH SUCH
VIOLATION BY A FINE OF NOT MORE THAN $10,000 OR BY IMPRISONMENT FOR NOT
MORE THAN FIVE YEARS, OR BY BOTH SUCH FINE AND IMPRISONMENT."  64 STAT.
1003, 50 U.S.C. SEC. 794(C). 

FN3  APPELLANTS DO NOT QUESTION THAT THE HEARINGS AFFORDED THEM
PROCEDURAL DUE PROCESS OF LAW.  CF. GREENE V. MCELROY, 360 U.S. 474. 

FN4  EACH COMPLAINT FURTHER ALLEGED THAT SEC. 6 WAS UNCONSTITUTIONAL
AS: 

"(B)  AN ABRIDGEMENT OF PLAINTIFF'S FREEDOMS OF SPEECH, PRESS AND
ASSEMBLY, IN VIOLATION OF THE FIRST AMENDMENT, (C) A PENALTY IMPOSED ON
PLAINTIFF WITHOUT A JUDICIAL TRIAL, AND THEREFORE A BILL OF ATTAINDER,
IN VIOLATION OF ARTICLE I, SECTION 9 OF THE CONSTITUTION, (D) A
DEPRIVATION OF PLAINTIFF'S RIGHT TO TRIAL BY JURY AS REQUIRED BY THE
FIFTH AND SIXTH AMENDMENTS AND ARTICLE III, SECTION 2, CLAUSE 3 OF THE
CONSTITUTION, AND (E) THE IMPOSITION OF A CRUEL AND UNUSUAL PUNISHMENT
IN VIOLATION OF THE EIGHTH AMENDMENT." 

OUR DISPOSITION OF THIS CASE MAKES IT UNNECESSARY TO REVIEW THESE
CONTENTIONS. 

FN5  IN BOLLING V. SHARPE, 347 U.S. 497, 499-500, THIS COURT STATED
THAT:  "ALTHOUGH THE COURT HAS NOT ASSUMED TO DEFINE 'LIBERTY' WITH ANY
GREAT PRECISION, THAT TERM IS NOT CONFINED TO MERE FREEDOM FROM BODILY
RESTRAINT.  LIBERTY UNDER LAW EXTENDS TO THE FULL RANGE OF CONDUCT
WHICH THE INDIVIDUAL IS FREE TO PURSUE, AND IT CANNOT BE RESTRICTED
EXCEPT FOR A PROPER GOVERNMENTAL OBJECTIVE." 

FN6  SEE NOTE 1, SUPRA. 

FN7  E.G., BROTHERHOOD OF RAILROAD TRAINMEN V. VIRGINIA STATE BAR,
377 U.S. 1; GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMM., 372 U.S.
539; NAACP V. BUTTON, 371 U.S. 415; LOUISIANA EX REL. GREMILLION V.
NAACP, 366 U.S. 293; SHELTON V. TUCKER, 364 U.S. 479; BATES V. CITY OF
LITTLE ROCK, 361 U.S. 516; NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S.
449; SCHNEIDER V. STATE, 308 U.S. 147. 

FN8  THE PURPOSE OF THE ACT IS STATED IN SEC. 2.  64 STAT. 987, 50
U.S.C. SEC. 781.  CONGRESS FOUND, AS IS GENERALLY STATED IN SEC. 2(1),
THAT THERE "EXISTS A WORLD COMMUNIST MOVEMENT  ... WHOSE PURPOSE IT IS,
BY TREACHERY, DECEIT, INFILTRATION  ...  , ESPIONAGE, SABOTAGE,
TERRORISM, AND ANY OTHER MEANS DEEMED NECESSARY, TO ESTABLISH A
COMMUNIST TOTALITARIAN DICTATORSHIP IN THE COUNTRIES THROUGHOUT THE
WORLD THROUGH THE MEDIUM OF A WORLD-WIDE COMMUNIST ORGANIZATION." 
CONGRESS CONCLUDED, AS STATED IN SEC. 2(15), THAT THE "COMMUNIST
ORGANIZATION IN THE UNITED STATES" AND THE WORLD COMMUNIST MOVEMENT
PRESENT A DANGER TO THE SECURITY OF THE UNITED STATES, A DANGER
REQUIRING LEGISLATIVE ACTION.  THE CONGRESSIONAL PURPOSE IN ADOPTING
SEC. 6 IS MORE SPECIFICALLY STATED IN SEC. 2(8):    "DUE TO THE NATURE
AND SCOPE OF THE WORLD COMMUNIST MOVEMENT, WITH THE EXISTENCE OF
AFFILIATED CONSTITUENT ELEMENTS WORKING TOWARD COMMON OBJECTIVES IN
VARIOUS COUNTRIES OF THE WORLD, TRAVEL OF COMMUNIST MEMBERS,
REPRESENTATIVES, AND AGENTS FROM COUNTRY TO COUNTRY FACILITATES
COMMUNICATION AND IS A PREREQUISITE FOR THE CARRYING ON OF ACITIVITIES
TO FURTHER THE PURPOSES OF THE COMMUNIST MOVEMENT." 

FN9  THE PROVISION IN QUESTION CANNOT, AS THE GOVERNMENT ADMITS, BE
LIMITED BY ADOPTING AN INTERPRETATION ANALOGOUS TO THIS COURT'S
INTERPRETATION OF THE SO-CALLED "MEMBERSHIP CLAUSE" IN THE SMITH ACT. 
IN SCALES V. UNITED STATES, 367 U.S. 203, THE SMITH ACT, WHICH IMPOSES
CRIMINAL PENALTIES FOR MEMBERSHIP, WAS INTERPRETED TO INCLUDE ONLY
"'ACTIVE' MEMBERS HAVING ALSO A GUILTY KNOWLEDGE AND INTENT."  ID., AT
228.  THE MEMBERSHIP CLAUSE IN THAT CASE, HOWEVER, EXPLICITLY REQUIRED
"THAT A DEFENDANT MUST HAVE KNOWLEDGE OF THE ORGANIZATION'S ILLEGAL
ADVOCACY,"  ID., AT 221.  THAT REQUIREMENT WAS INTIMATELY CONNECTED
WITH THE CONSTRUCTION LIMITING MEMBERSHIP TO "ACTIVE" MEMBERS.  WITH
REGARD TO THE CONTROL ACT, HOWEVER, AS THE GOVERNMENT CONCEDES,
"NEITHER THE WORDS NOR HISTORY OF SECTION 6 SUGGESTS LIMITING ITS
APPLICATION TO 'ACTIVE' MEMBERS." 

FN10  IN DENYING APPELLANTS PASSPORTS THE SECRETARY OF STATE MADE NO
FINDING AS TO THEIR PURPOSES IN TRAVELING ABROAD.  THE STATUTE, AS
NOTED, SUPPORTS THE SECRETARY'S IMPLICIT CONCLUSION THAT SUCH A FINDING
WAS IRRELEVANT.  APPELLANTS, HOWEVER, IN THEIR RESPECTIVE COMPLAINTS
STATED THEIR PURPOSES.  APPELLANT APTHEKER ALLEGED THAT: 

"HE DESIRES TO TRAVEL TO COUNTRIES OF EUROPE AND ELSEWHERE FOR STUDY
AND RECREATION, TO OBSERVE SOCIAL, POLITICAL AND ECONOMIC CONDITIONS
ABROAD, AND THEREAFTER TO WRITE, PUBLISH, TEACH AND LECTURE IN THIS
COUNTRY ABOUT HIS OBSERVATIONS.  HE ALSO DESIRES TO TRAVEL ABROAD IN
ORDER TO ATTEND MEETINGS OF LEARNED SOCIETIES AND TO FULFILL
INVITATIONS TO LECTURE ABROAD." 

APPELLANT FLYNN ALLEGED THAT: 

"SHE DESIRES TO TRAVEL TO COUNTRIES OF EUROPE AND ELSEWHERE FOR
RECREATION AND STUDY, TO OBSERVE SOCIAL, POLITICAL AND ECONOMIC
CONDITIONS ABROAD, AND THEREAFTER TO WRITE, PUBLISH AND LECTURE ABOUT
HER OBSERVATIONS. 

FN11  THE ABRIDGMENT OF LIBERTY INVOLVED IN THIS CASE IS MORE
"DRASTIC" THAN, AND DISTINGUISHABLE FROM, THAT INVOLVED IN AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382.  IN DOUDS THE COURT UPHELD
SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT AS AMENDED BY THE TAFT
HARTLEY ACT, 61 STAT. 136, 146, 29 U.S.C. SEC. 159(H), WHICH CONDITIONS
TRADE-UNION ACCESS TO THE FACILITIES OF THE NATIONAL LABOR RELATIONS
BOARD UPON THE SUBMISSION OF NON-COMMUNIST AFFIDAVITS BY OFFICERS OF
THE UNION.  ALTHOUGH THE REQUIREMENT UNDOUBTEDLY DISCOURAGES UNIONS
FROM CHOOSING OFFICERS WITH COMMUNIST AFFILIATIONS, IT DID NOT PROHIBIT
THEIR ELECTION AND DID NOT AFFECT BASIC INDIVIDUAL RIGHTS TO WORK AND
TO UNION MEMBERSHIP. 

FN12  IN 1950 THE ASSISTANT TO THE ATTORNEY GENERAL OF THE UNITED
STATES, PEYTON FORD, EXPRESSED TO CONGRESS THE VIEWS OF THE DEPARTMENT
OF JUSTICE WITH REGARD TO A PROPOSED GOVERNMENT LOYALTY BILL WHICH
PREDICATED A CONCLUSIVE PRESUMPTION OF DISLOYALTY ON THE FACT OF
ORGANIZATIONAL MEMBERSHIP.  MR. FORD SAID: 

"A WORLD OF DIFFERENCE EXISTS, FROM THE STANDPOINT OF SOUND POLICY
AND CONSTITUTIONAL VALIDITY, BETWEEN MAKING, AS THE BILL WOULD,
MEMBERSHIP IN AN ORGANIZATION DESIGNATED BY THE ATTORNEY GENERAL A
FELONY, AND RECOGNIZING SUCH MEMBERSHIP, AS DOES THE EMPLOYEE PROGRAM
UNDER EXECUTIVE ORDER 9835, AS MERELY ONE PIECE OF EVIDENCE POINTING TO
POSSIBLE DISLOYALTY.  THE BILL WOULD BRAND THE MEMBER OF A LISTED
ORGANIZATION A FELON, NO MATTER HOW INNOCENT HIS MEMBERSHIP; THE
LOYALTY PROGRAM ENABLES THE MEMBER TO RESPOND TO CHARGES AGAINST HIM
AND TO SHOW, IN A MANNER CONSISTENT WITH AMERICAN CONCEPTS OF JUSTICE
AND FAIRNESS, THAT HIS MEMBERSHIP IS INNOCENT AND DOES NOT REFLECT UPON
HIS LOYALTY. 

"  ...  IT DOES NOT APPEAR, THEREFORE, NECESSARY, EVEN IF
CONSTITUTIONALLY POSSIBLE, TO ADD TO EXISTING LAW AND REGULATIONS AT
THE PRESENT TIME A PENAL STATUTE SUCH AS PROPOSED IN THE BILL. 

"THE FOREGOING COMMENTS REPRESENT THE CONSIDERED VIEWS OF THIS
DEPARTMENT, HAVING IN MIND THAT IT IS THE DUTY OF THE ATTORNEY GENERAL
TO PROTECT THE RIGHTS OF INDIVIDUALS GUARANTEED BY THE CONSTITUTION, AS
WELL AS TO PROTECT THE GOVERNMENT FROM SUBVERSION."  HEARINGS ON H.R.
3903 AND H.R. 7595 BEFORE THE HOUSE COMMITTEE ON UN-AMERICAN
ACTIVITIES, 81ST CONG., 2D SESS., 2125. 

FN13  THE GOVERNMENT RECOGNIZES, HOWEVER, THAT:  "MEMBERSHIP, OR EVEN
LEADERSHIP, IN THE COMMUNIST PARTY IS NOT AUTOMATICALLY A CRIME." 
BRIEF FOR PETITIONER ON PETITION FOR A WRIT OF CERTIORARI, P. 11,
UNITED STATES V. COMMUNIST PARTY OF THE UNITED STATES, NO. 1027, O.T.
1963, CERT. DENIED, 377 U.S. 968. 

FN14  FOR APPELLANTS' ALLEGED PURPOSES IN TRAVELING, SEE NOTE 10,
SUPRA. 

FN15  SEE FREUND, THE SUPREME COURT OF THE UNITED STATES (1961), PP.
67-69; NOTE, 61 HARV. L. REV. 1208 (1948); NOTE, 109 U. PA. L. REV. 67,
75-85 (1960). 

FN16  NOR IN OUR OPINION SHOULD THE SECRETARY OF STATE OR OTHER
GOVERNMENT OFFICERS BE EXPOSED TO THE RISK OF CRIMINAL PENALTIES FOR
VIOLATING SEC. 6(B) BY ISSUING A PASSPORT TO A MEMBER OF A REGISTERED
COMMUNIST-ACTION ORGANIZATION WHO IS SUBSEQUENTLY FOUND BY A COURT TO
BE A PERSON WHOSE TRAVEL, CONTRARY TO THE BELIEF OF THE GOVERNMENT
OFFICER, COULD CONSTITUTIONALLY BE PROHIBITED. 

MR. JUSTICE BLACK, CONCURRING. 

FOR A MEMBER OF A "COMMUNIST," "COMMUNIST-ACTION," OR "COMMUNIST-FRONT"
ORGANIZATION TO APPLY FOR, USE, OR ATTEMPT TO USE A PASSPORT FOR TRAVEL
ABROAD.  I CONCUR IN THE COURT'S HOLDING THAT THIS SECTION OF THE ACT
IS UNCONSTITUTIONAL, BUT NOT ON THE GROUND THAT THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT, STANDING ALONE, CONFERS ON ALL OUR PEOPLE A
CONSTITUTIONAL LIBERTY TO TRAVEL ABOARD AT WILL.  WITHOUT REFERENCE TO
OTHER CONSTITUTIONAL PROVISIONS, CONGRESS HAS, IN MY JUDGMENT, BROAD
POWERS TO REGULATE THE ISSUANCE OF PASSPORTS UNDER ITS SPECIFIC POWER
TO REGULATE COMMERCE WITH FOREIGN NATIONS.  THE DUE PROCESS CLAUSES OF
THE FIFTH AND FOURTEENTH AMENDMENTS DO MEAN TO ME, HOWEVER, THAT
NEITHER THE SECRETARY OF STATE NOR ANY OTHER GOVERNMENT AGENT CAN DENY
PEOPLE IN THIS COUNTRY THEIR LIBERTY TO TRAVEL OR THEIR LIBERTY TO DO
ANYTHING ELSE EXCEPT IN ACCORDANCE WITH THE "LAW OF THE LAND" AS
DECLARED BY THE CONSTITUTION OR BY VALID LAWS MADE PURSUANT TO IT.  FOR
REASONS STATED IN MY DISSENTING OPINION IN COMMUNIST PARTY V.
SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1, 137, I THINK THE WHOLE
ACT, INCLUDING SEC. 6, IS NOT A VALID LAW, THAT IT SETS UP A
COMPREHENSIVE STATUTORY PLAN WHICH VIOLATES THE FEDERAL CONSTITUTION
BECAUSE (1) IT CONSTITUTES A "BILL OF ATTAINDER," WHICH ART. I, SEC. 9,
OF THE CONSTITUTION FORBIDS CONGRESS TO PASS; (2) IT PENALIZES AND
PUNISHES APPELLANTS AND RESTRICTS THEIR LIBERTY ON LEGISLATIVE AND
ADMINISTRATIVE FACT-FINDINGS THAT THEY ARE SUBVERSIVES, AND IN EFFECT
TRAITORS TO THEIR COUNTRY, WITHOUT GIVING THEM THE BENEFIT OF A TRIAL
ACCORDING TO DUE PROCESS, WHICH REQUIRES A TRIAL BY JURY BEFORE AN
INDEPENDENT JUDGE, AFTER AN INDICTMENT, AND IN ACCORDANCE WITH ALL THE
OTHER PROCEDURAL PROTECTIONS OF THE FOURTH, FIFTH, AND SIXTH
AMENDMENTS; AND (3) IT DENIES APPELLANTS THE FREEDOM OF SPEECH, PRESS,
AND ASSOCIATION WHICH THE FIRST AMENDMENT GUARANTEES. 

THE SUBVERSIVE ACTIVITIES CONTROL ACT IS SUPPOSED TO BE DESIGNED TO
PROTECT THIS NATION'S "INTERNAL SECURITY."  THIS CASE OFFERS ANOTHER
APPROPRIATE OCCASION TO POINT OUT THAT THE FRAMERS THOUGHT (AND I
AGREE) THAT THE BEST WAY TO PROMOTE THE INTERNAL SECURITY OF OF OUR
PEOPLE IS TO PROTECT THEIR FIRST AMENDMENT FREEDOMS OF SPEECH, PRESS,
RELIGION AND ASSEMBLY, AND THAT WE CANNOT TAKE AWAY THE LIBERTY OF
GROUPS WHOSE VIEWS MOST PEOPLE DETEST WITHOUT JEOPARDIZING THE LIBERTY
OF ALL OTHERS WHOSE VIEWS THOUGH POPULAR TODAY, MAY THEMSELVES BE
DETESTED TOMORROW. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOING THE OPINION OF THE COURT, I ADD ONLY A FEW WORDS TO
INDICATE WHAT I THINK IS THE BASIC REACH OF THE PROBLEM BEFORE US. 

WE NOTED IN KENT V. DULLES, 357 U.S. 116, 126, THAT "FREEDOM OF
MOVEMENT," BOTH INTERNALLY AND ABROAD, IS "DEEPLY ENGRAINED" IN OUR
HISTORY.  I WOULD NOT SUPPOSE THAT A COMMUNIST, ANY MORE THAN AN
INDIGENT, COULD BE BARRED FROM TRAVELING INTERSTATE.  I THINK THAT A
COMMUNIST, THE SAME AS ANYONE ELSE, HAS THIS RIGHT.  BEING A COMMUNIST
CERTAINLY IS NOT A CRIME; AND WHILE TRAVELING MAY INCREASE THE
LIKELIHOOD OF ILLEGAL EVENTS HAPPENING, SO DOES BEING ALIVE.  IF, AS I
THINK, THE RIGHT TO MOVE FREELY FROM STATE TO STATE IS A PRIVILEGE AND
IMMUNITY OF NATIONAL CITIZENSHIP (SEE EDWARDS V. CALIFORNIA, 314 U.S.
160, 178), NONE CAN BE BARRED FROM EXERCISING IT, THOUGH ANYONE WHO
USES IT AS AN OCCASION TO COMMIT A CRIME CAN OF COURSE BE PUNISHED. 
BUT THE RIGHT REMAINS SACROSANCT, ONLY ILLEGAL CONDUCT BEING
PUNISHABLE. 

FREE MOVEMENT BY THE CITIZEN IS OF COURSE AS DANGEROUS TO A TYRANT AS
FREE EXPRESSION OF IDEAS OR THE RIGHT OF ASSEMBLY AND IT IS THEREFORE
CONTROLLED IN MOST COUNTRIES IN THE INTERESTS OF SECURITY.   THAT IS
WHY RIDING BOXCARS CARRIES EXTREME PENALTIES IN COMMUNIST LANDS.  THAT
IS WHY THE TICKETING OF PEOPLE AND THE USE OF IDENTIFICATION PAPERS ARE
ROUTINE MATTERS UNDER TOTALITARIAN REGIMES, YET ABHORRENT IN THE UNITED
STATES. 

FREEDOM OF MOVEMENT, AT HOME AND ABROAD, IS IMPORTANT FOR JOB AND
BUSINESS OPPORTUNITIES - FOR CULTURAL, POLITICAL, AND SOCIAL ACTIVITIES
- FOR ALL THE COMMINGLING WHICH GREGARIOUS MAN ENJOYS.  THOSE WITH THE
RIGHT OF FREE MOVEMENT USE IT AT TIMES FOR MISCHIEVOUS PURPOSES.  BUT
THAT IS TRUE OF MANY LIBERTIES WE ENJOY.  WE NEVERTHELESS PLACE OUR
FAITH IN THEM, AND AGAINST RESTRAINT, KNOWING THAT THE RISK OF ABUSING
LIBERTY SO AS TO GIVE RISE TO PUNISHABLE CONDUCT IS PART OF THE PRICE
WE PAY FOR THIS FREE SOCIETY. 

FREEDOM OF MOVEMENT IS KIN TO THE RIGHT OF ASSEMBLY AND TO THE RIGHT
OF ASSOCIATION.  THESE RIGHTS MAY NOT BE ABRIDGED, DE JONGE V. OREGON,
299 U.S. 353; NAACP V. ALABAMA, 357 U.S. 449, 460-462, ONLY ILLEGAL
CONDUCT BEING WITHIN THE PURVIEW OF CRIME IN THE CONSTITUTIONAL SENSE. 

WAR MAY BE THE OCCASION FOR SERIOUS CURTAILMENT OF LIBERTY.  ABSENT
WAR, I SEE NO WAY TO KEEP A CITIZEN FROM TRAVELING WITHIN OR WITHOUT
THE COUNTRY, UNLESS THERE IS POWER TO DETAIN HIM.  EX PARTE ENDO, 323
U.S. 283.  AND NO AUTHORITY TO DETAIN EXISTS EXCEPT UNDER EXTREME
CONDITIONS, E.G., UNLESS HE HAS BEEN CONVICTED OF A CRIME OR UNLESS
THERE IS PROBABLE CAUSE FOR ISSUING A WARRANT OF ARREST BY STANDARDS OF
THE FOURTH AMENDMENT.  THIS FREEDOM OF MOVEMENT IS THE VERY ESSENCE OF
OUR FREE SOCIETY, SETTING US APART.  LIKE THE RIGHT OF ASSEMBLY AND THE
RIGHT OF ASSOCIATION, IT OFTEN MAKES ALL OTHER RIGHTS MEANINGFUL -
KNOWING, STUDYING, ARGUING, EXPLORING, CONVERSING, OBSERVING AND EVEN
THINKING.  ONCE THE RIGHT TO TRAVEL IS CURTAILED, ALL OTHER RIGHTS
SUFFER, JUST AS WHEN CURFEW OR HOME DETENTION IS PLACED ON A PERSON. 

AMERICA IS OF COURSE SOVEREIGN; BUT HER SOVEREIGNTY IS WOVEN IN AN
INTERNATIONAL WEB THAT MAKES HER ONE OF THE FAMILY OF NATIONS.  THE
TIES WITH ALL THE CONTINENTS ARE CLOSE - COMMERCIALLY AS WELL AS
CULTURALLY.  OUR CONCERNS ARE PLANETARY, BEYOND SUNRISES AND SUNSETS. 
CITIZENSHIP IMPLICATES US IN THOSE PROBLEMS AND PERPLEXITIES, AS WELL
AS IN DOMESTIC ONES.  WE CANNOT EXERCISE AND ENJOY CITIZENSHIP IN WORLD
PERSPECTIVE WITHOUT THE RIGHT TO TRAVEL ABROAD; AND I SEE NO
CONSTITUTIONAL WAY TO CURB IT UNLESS, AS I SAID, THERE IS THE POWER TO
DETAIN. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE HARLAN JOINS AND WHOM MR. JUSTICE
WHITE JOINS IN PART, DISSENTING. 

                                       I. 

THE COURT REFUSES TO CONSIDER THE CONSTITUTIONALITY OF SEC. 6 OF THE
SUBVERSIVE ACTIVITIES CONTROL ACT AS APPLIED TO THE APPELLANTS IN THIS
CASE, ELIZABETH BURLEY FLYNN, THE CHAIRMAN OF THE COMMUNIST PARTY OF
THE UNITED STATES, AND HERBERT APTHEKER, THE EDITOR OF THE PARTY'S
"THEORETICAL ORGAN," POLITICAL AFFAIRS.  INSTEAD, THE COURT DECLARES
THE SECTION INVALID ON ITS FACE UNDER THE FIFTH AMENDMENT.  THIS IS
CONTRARY TO THE LONG-PREVAILING PRACTICE OF THIS COURT.  AS WE SAID IN
UNITED STATES V. RAINES, 362 U.S. 17, 20-21 (1960): 

"THE VERY FOUNDATION OF THE POWER OF THE FEDERAL COURTS TO DECLARE
ACTS OF CONGRESS UNCONSTITUTIONAL LIES IN THE POWER AND DUTY OF THOSE
COURTS TO DECIDE CASES AND CONTROVERSIES PROPERLY BEFORE THEM.  THIS
WAS MADE PATENT IN THE FIRST CASE HERE EXERCISING THAT POWER - 'THE
GRAVEST AND MOST DELICATE DUTY THAT THIS COURT IS CALLED ON TO
PERFORM.'  (HOLMES.  J., IN BLODGETT V. HOLDEN, 275 U.S. 142, 148.) 
MARBURY V. MADISON, 1 CRANCH 137, 177-180.  THIS COURT, AS IS THE CASE
WITH ALL FEDERAL COURTS, 'HAS NO JURISDICTION TO PRONOUNCE ANY STATUTE,
EITHER OF A STATE OR OF THE UNITED STATES, VOID, BECAUSE IRRECONCILABLE
WITH THE CONSTITUTION, EXCEPT AS IT IS CALLED UPON TO ADJUDGE THE LEGAL
RIGHTS OF LITIGANTS IN ACTUAL CONTROVERSIES.  IN THE EXERCISE OF THAT
JURISDICTION, IT IS BOUND BY TWO RULES, TO WHICH IT HAS RIGIDLY
ADHERED, ONE, NEVER TO ANTICIPATE A QUESTION OF CONSTITUTIONAL LAW IN
ADVANCE OF THE NECESSITY OF DECIDING IT; THE OTHER NEVER TO FORMULATE A
RULE OF CONSTITUTIONAL LAW BROADER THAN IS REQUIRED BY THE PRECISE
FACTS TO WHICH IT IS TO BE APPLIED.'  LIVERPOOL, NEW YORK &
PHILADELPHIA S.S. CO. V. COMMISSIONERS OF EMIGRATION, 113 U.S. 33, 39. 
KINDRED TO THESE RULES IS THE RULE THAT ONE TO WHOM APPLICATION OF A
STATUTE IS CONSTITUTIONAL WILL NOT BE HEARD TO ATTACK THE STATUTE ON
THE GROUND THAT IMPLIEDLY IT MIGHT ALSO BE TAKEN AS APPLYING TO OTHER
PERSONS OR OTHER SITUATIONS IN WHICH ITS APPLICATION MIGHT BE
UNCONSTITUTIONAL.  UNITED STATES V. WURZBACH, 280 U.S. 396; HEALD V.
DISTRICT OF COLUMBIA, 259 U.S. 114, 123; YAZOO & MISSISSIPPI VALLEY R.
CO. V. JACKSON VINEGAR CO., 226 U.S. 217; COLLINS V. TEXAS, 223 U.S.
288, 295-296; NEW YORK EX REL. HATCH V. REARDON, 204 U.S. 152, 160
161.  CF.  VOELLER V. NEILSTON WAREHOUSE CO., 311 U.S. 531, 537;
CARMICHAEL V. SOUTHERN COAL & COKE CO., 301 U.S. 495, 513; VIRGINIAN R.
CO. V. SYSTEM FEDERATION, 300 U.S. 515, 558; BLACKMER V. UNITED STATES,
284 U.S. 421, 442; ROBERTS & SCHAEFER CO. V. EMMERSON, 271 U.S. 50, 54
55; JEFFREY MFG. CO. V. BLAGG, 235 U.S. 571, 576; TYLER V. JUDGES OF
THE COURT OF REGISTRATION, 179 U.S. 405; ASHWANDER V. TVA, 297 U.S.
288, 347-348 (CONCURRING OPINION)."    INDEED, ONLY LAST TERM WE
SPECIFICALLY HELD IN UNITED STATES V. NATIONAL DAIRY PRODUCTS CORP.,
372 U.S. 29, 36 (1963): 

"IN THIS CONNECTION WE ALSO NOTE THAT THE APPROACH TO 'VAGUENESS'
GOVERNING A CASE LIKE THIS IS DIFFERENT FROM THAT FOLLOWED IN CASES
ARISING UNDER THE FIRST AMENDMENT.  THERE WE ARE CONCERNED WITH THE
VAGUENESS OF THE STATUTE 'ON ITS FACE'  ...  .  (IN OTHER CASES WE ALSO
CONSIDER THE STATUTE) IN THE LIGHT OF THE CONDUCT TO WHICH IT IS
APPLIED." 

THE COURT SAYS THAT NATIONAL DAIRY IS NOT APPOSITE, CITING THORNHILL
V. ALABAMA, 310 U.S. 88, AND NAACP V. BUTTON, 371 U.S. 415.  BUT
THORNHILL AND BUTTON ARE FIRST AMENDMENT CASES, WHILE THE HOLDING OF
THIS CASE IS BASED ON THE FIFTH AMENDMENT'S GUARANTEE OF THE RIGHT TO
TRAVEL ABROAD.  KENT V. DULLES, 357 U.S. 116, 127 (1958).  CONSEQUENTLY
THEY ARE NOT APPOSITE HERE. 

AS APPLIED TO THE PROSECUTION OF THE COMMUNIST PARTY'S TOP
DIGNITARIES, THE SECTION IS CLEARLY CONSTITUTIONAL.  THE ONLY
OBJECTIONS THE COURT FINDS TO THE LANGUAGE OF CONGRESS ARE THAT IT
MAKES THE SECTION APPLICABLE:  (1) "WHETHER OR NOT THE MEMBER (OF THE
PARTY) ACTUALLY KNOWS OR BELIEVES THAT HE IS ASSOCIATED WITH WHAT IS
DEEMED TO BE A 'COMMUNIST-ACTION' OR A 'COMMUNIST-FRONT' ORGANIZATION";
(2) "WHETHER OR NOT ONE KNOWS OR BELIEVES THAT HE IS ASSOCIATED WITH AN
ORGANIZATION OPERATING TO FURTHER AIMS OF THE WORLD COMMUNIST MOVEMENT
AND 'TO ESTABLISH A COMMUNIST TOTALITARIAN DICTATORSHIP IN THE
COUNTRIES THROUGHOUT THE WORLD  ...  .'"  LET US DISCUSS THESE
OBJECTIONS SERIATIM: 

(1)  THERE IS A FINDING HERE - NOT UNDER ATTACK - THAT MRS. FLYNN
"WAS AN ACTIVE, PARTICIPATING AND CONTINUOUS MEMBER OF THE COMMUNIST
PARTY OF THE UNITED STATES; WAS ACTIVE IN THE PARTY'S AFFAIRS AND ITS
ORGANIZATION; AND INDEED WAS AND STILL IS ONE OF ITS PRINCIPAL
OFFICIALS."  LIKEWISE THERE IS A FINDING - NOT UNDER ATTACK - AS TO
APTHEKER THAT HE "(APTHEKER) MAKES IT QUITE CLEAR IN HIS OWN WORDS THAT
HE HAS BEEN A MEMBER OF THE COMMUNIST PARTY SINCE 1939 AND THAT HE IS
VERY PROUD OF HIS ASSOCIATION AND WILL DO WHATEVER HE CAN TO FURTHER
THE AIMS AND GOALS OF THE PARTY."  THE RECORD SHOWS THAT BOTH FLYNN AND
APTHEKER WERE WITNESSES IN BEHALF OF THE PARTY IN THE REGISTRATION
PROCEEDING WHICH RESULTED IN THE PARTY'S BEING ORDERED TO REGISTER AS A
COMMUNIST-ACTION ORGANIZATION.  COMMUNIST PARTY V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, 367 U.S. 1 (1961).  IN ADDITION, MRS. FLYNN
WAS CONVICTED UNDER THE SMITH ACT.  SEE UNITED STATES V. FLYNN, 216
F.2D 354 (1954).  IN VIEW OF THESE CIRCUMSTANCES, NO ONE COULD SAY WITH
TRUTH THAT THE APPELLANTS DID NOT KNOW THAT THEY WERE ASSOCIATED WITH A
COMMUNIST-ACTION ORGANIZATION.  IN FACT, NEITHER APPELLANT CLAIMS LACK
OF NOTICE OR KNOWLEDGE OF THE REQUIREMENTS OF THE SECTION. 

(2)  AS TO KNOWLEDGE THAT THE COMMUNIST PARTY IS INVOLVED IN A WORLD
COMMUNIST MOVEMENT AIMED AT ESTABLISHING A TOTALITARIAN COMMUNIST
DICTATORSHIP IN COUNTRIES THROUGHOUT THE WORLD, CONGRESS MADE SPECIFIC
FINDINGS IN THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 (THE VERY
STATUTE UNDER WHICH THE HEARING WAS HELD AT WHICH PETITIONERS TESTIFIED
FOR THE PARTY) AND IN THE COMMUNIST CONTROL ACT OF 1954 THAT:  "THE
COMMUNIST PARTY OF THE UNITED STATES  ...  IS IN FACT AN
INSTRUMENTALITY OF A CONSPIRACY TO OVERTHROW THE GOVERNMENT OF THE
UNITED STATES," 68 STAT. 775; "THE POLICIES AND PROGRAMS OF THE
COMMUNIST PARTY ARE SECRETLY PRESCRIBED FOR IT BY THE FOREIGN LEADERS
OF THE WORLD COMMUNIST MOVEMENT," IBID.; THIS CONTROL IS IN A
"COMMUNIST DISTATORSHIP OF A FOREIGN COUNTRY," WHOSE PURPOSE IS "TO
ESTABLISH A COMMUNIST TOTALITARIAN DICTATORSHIP IN THE COUNTRIES
THROUGHOUT THE WORLD," 64 STAT. 987; AND THIS IS TO BE ACCOMPLISHED BY
"ACTION ORGANIZATIONS" IN VARIOUS COUNTRIES WHICH SEEK "THE OVERTHROW
OF EXISTING GOVERNMENTS BY ANY AVAILABLE MEANS," ID., AT 988.  THESE
FINDINGS OF THE CONGRESS, LIKE THOSE OF THE EXAMINER WHICH ARE NOT
UNDER ATTACK HERE, ARE BINDING ON THIS COURT.  COMMUNIST PARTY V.
CONTROL BOARD, SUPRA.  THERE WE SAID: 

"IT IS NOT FOR THE COURTS TO RE-EXAMINE THE VALIDITY OF THESE
LEGISLATIVE FINDINGS AND REJECT THEM.  SEE HARISIADES V. SHAUGHNESSY,
342 U.S. 580, 590.  THEY ARE THE PRODUCT OF EXTENSIVE INVESTIGATION BY
COMMITTESS OF CONGRESS OVER MORE THAN A DECADE AND A HALF.  CF. NEBBIA
V. NEW YORK, 291 U.S. 502, 516, 530.  WE CERTAINLY CANNOT DISMISS THEM
AS UNFOUNDED OR IRRATIONAL IMAGININGS.  SEE GALVAN V. PRESS, 347 U.S.
522, 529; AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 388
389."  AT 94-95. 

IT IS, THEREFORE, DIFFICULT FOR ME TO SEE HOW IT CAN BE SAID
RATIONALLY THAT THESE APPELLANTS - TOP PARTY FUNCTIONARIES WHO
TESTITIFED ON BEHALF OF THE PARTY IN THE REGISTRATION PROCEEDING
INVOLVED IN COMMUNIST PARTY V. CONTROL BOARD, SUPRA - DID NOT KNOW THAT
THEY WERE "ASSOCIATED WITH AN ORGANIZATION OPERATING TO FURTHER AIMS OF
THE WORLD COMMUNIST MOVEMENT AND 'TO ESTABLISH A COMMUNIST TOTALITARIAN
DICTATORSHIP IN THE COUNTRIES THROUGHOUT THE WORLD  ...  .'" 

HOW DOES THE COURT ESCAPE?  IT SAYS THAT THE SECTION "SWEEPS WITHIN
ITS PROHIBITION BOTH KNOWING AND UNKNOWING MEMBERS."  BUT WE HAVE NO
"UNKNOWING MEMBERS" BEFORE US.  NEITHER APPELLANT CONTESTS THESE
FINDINGS.  ALL WE HAVE ARE IRRATIONAL IMAGININGS:  A MEMBER OF THE
PARTY MIGHT WISH "TO VISIT A RELATIVE IN IRELAND, OR TO READ RARE
MANUSCRIPTS IN THE BODLEIAN LIBRARY OF OXFORD UNIVERSITY  ...  ."  BUT
NO SUCH PARTY IS HERE AND NO SUCH CLAIM IS ASSERTED.  IT WILL BE SOON
ENOUGH TO TEST THIS SITUATION WHEN IT COMES HERE. 

                                       II. 

NOR DO I BELIEVE THE SECTION INVALID "ON ITS FACE."  WHILE THE RIGHT
TO TRAVEL ABROAD IS A PART OF THE LIBERTY PROTECTED BY THE FIFTH
AMENDMENT, THE DUE PROCESS CLAUSE DOES NOT PROHIBIT REASONABLE
REGULATION OF LIFE, LIBERTY OR PROPERTY.  HERE THE RESTRICTION IS
REASONABLY RELATED TO THE NATIONAL SECURITY.  AS WE SAID IN BARENBLATT
V. UNITED STATES, 360 U.S. 109, 127-128 (1959): 

"THAT CONGRESS HAS WIDE POWER TO LEGISLATE IN THE FIELD OF COMMUNIST
ACTIVITY IN THIS COUNTRY, AND TO CONDUCT APPROPRIATE INVESTIGATIONS IN
AID THEREOF, IS HARDLY DEBATABLE.  THE EXISTENCE OF SUCH POWER HAS
NEVER BEEN QUESTIONED BY THIS COURT ...  .  IN THE LAST ANALYSIS THIS
POWER RESTS ON THE RIGHT OF SELF-PRESERVATION, 'THE ULTIMATE VALUE OF
ANY SOCIETY.'  DENNIS V. UNITED STATES, 341 U.S. 494, 509." 

THE RIGHT TO TRAVEL IS NOT ABSOLUTE.  CONGRESS HAD AMPLE EVIDENCE
THAT USE OF PASSPORTS BY AMERICANS BELONGING TO THE WORLD COMMUNIST
MOVEMENT IS A THREAT TO OUR NATIONAL SECURITY.  PASSPORTS WERE DENIED
TO COMMUNISTS FROM THE TIME OF THE SOVIET REVOLUTION UNTIL THE EARLY
30'S AND THEN AGAIN LATER IN THE 40'S.  IN 1950 CONGRESS DETERMINED, IN
THE SUBVERSIVE ACTIVITIES CONTROL ACT, THAT FOREIGN TRAVEL "IS A
PREREQUISITE FOR THE CARRYING ON OF ACTIVITIES TO FURTHER THE PURPOSES
OF THE COMMUNIST MOVEMENT."  64 STAT 988.  THE CONGRESS HAD BEFORE IT
EVIDENCE THAT SUCH USE OF PASSPORTS BY COMMUNIST PARTY MEMBERS:
ENABLED THE LEADERS OF THE WORLD COMMUNIST MOVEMENT IN THE SOVIET UNION
TO GIVE ORDERS TO THEIR COMRADES IN THE UNITED STATES AND TO EXCHANGE
VITAL SECRETS AS WELL; FACILITATED THE TRAINING OF AMERICAN COMMUNIST
LEADERS BY EXPERTS IN SABOTAGE AND THE LIKE IN MOSCOW; GAVE CLOSER
CENTRAL CONTROL TO THE WORLD COMMUNIST MOVEMENT; AND, OF UTMOST
IMPORTANCE, PROVIDED WORLD COMMUNIST LEADERS WITH PASSPORTS FOR SOVIET
SECRET AGENTS TO USE IN THE UNITED STATES FOR ESPIONAGE PURPOSES.*
THIS EVIDENCE AFFORDED THE CONGRESS A RATIONAL BASIS UPON WHICH TO
PLACE THE DENIAL OF PASSPORTS TO MEMBERS OF THE COMMUNIST PARTY OF THE
UNITED STATES.  THE DENIAL IS REASONABLY RELATED TO THE NATIONAL
SECURITY.  THE DEGREE OF RESTRAINT UPON TRAVEL IS OUTWEIGHED BY THE
DANGERS TO OUR VERY EXISTENCE. 

*IN THE PROCEEDING WHICH LED TO THE ORDER OF THE SUBVERSIVE
ACTIVITIES CONTROL BOARD DIRECTING THE COMMUNIST PARTY TO REGISTER, THE
BOARD HEARD EVIDENCE THAT THE PRESENT LEADERS OF THE COMMUNIST PARTY IN
THE UNITED STATES HAVE TRAVELED TO THE SOVIET UNION ON PARTY BUSINESS,
HAVE BEEN INDOCTRINATED AND TRAINED IN COMMUNIST STRATEGY AND POLICIES
AND HAVE ACTED AS COURIERS BETWEEN THE COMMUNIST PARTIES OF THE TWO
COUNTRIES. 

THE REMEDY ADOPTED BY THE CONGRESS IS REASONABLY TAILORED TO
ACCOMPLISH THE PURPOSE.  IT MAY BE TRUE THAT NOT EVERY MEMBER OF THE
PARTY WOULD ENDANGER OUR NATIONAL SECURITY BY TRAVELING ABROAD, BUT
WHICH COMMUNIST PARTY MEMBER IS WORTHY OF TRUST?  SINCE THE PARTY IS A
SECRET, CONSPIRATORIAL ORGANIZATION SUBJECT TO RIGID DISCIPLINE BY
MOSCOW, THE CONGRESS MERELY DETERMINED THAT IT WAS NOT WISE TO TAKE THE
RISK WHICH FOREIGN TRAVEL BY COMMUNISTS ENTAILED.  THE FACT THAT ALL
PERSONS IN A CLASS MAY NOT ENGAGE IN HARMFUL CONDUCT DOES NOT OF ITSELF
MAKE THE CLASSIFICATION INVALID.  WESTFALL V. UNITED STATES, 274 U.S.
256, 259 (1927); NORTH AMERICAN CO. V. SECURITIES & EXCHANGE COMM'N,
327 U.S. 686, 710-711 (1946); AMERICAN COMMUNICATIONS ASSN. V. DOUDS,
339 U.S. 382, 406 (1950).  IN SCHNEIDERMAN V. UNITED STATES, 320 U.S.
118, 132, 163, 172 (1943), THIS COURT INDICATED THAT CONGRESS MIGHT
EXCLUDE ALL COMMUNISTS FROM ENTERING THIS COUNTRY.  AND IN HAWKER V.
NEW YORK, 170 U.S. 189 (1898), THE COURT UPHELD A STATE STATUTE
PREVENTING ALL FELONS FROM PRACTICING MEDICINE; SIMILARLY, ALL ALIENS
MAY BE BARRED FROM OPERATING POOL HALLS, CLARKE V. DECKEBACH, 274 U.S.
392, 396-397 (1927).  MORE ONEROUS BURDENS THAN THOSE FOUND IN SEC. 6
WERE PLACED ON ALL UNION OFFICERS (WHOSE ORGANIZATION WAS ENJOYING
PRIVILEGES UNDER THE NATIONAL LABOR RELATIONS ACT), WHO WERE BARRED
FROM THEIR OFFICES (AND LIVELIHOOD IN THAT REGARD) IN THEY WERE
COMMUNIST PARTY MEMBERS.   AMERICAN COMMUNICATIONS ASSN.  V. DOUDS,
SUPRA.  LIKEWISE, THIS COURT APPROVED THE ACTION OF THE CONGRESS IN
AUTHORIZING DEPORTATION OF ALL ALIENS WHO HAD BEEN MEMBERS OF THE
PARTY.  HARISIADES V. SHAUGHNESSY, 342 U.S. 580, 590 (1952); GALVAN V.
PRESS, 347 U.S. 522 (1954).  WE ALSO UPHELD THE VESTING OF POWER IN THE
ATTORNEY GENERAL TO HOLD ALL COMMUNIST PARTY MEMBERS WITHOUT BAIL
PENDING DETERMINATION AS TO THEIR DEPORTABILITY.  CARLSON V. LANDON,
342 U.S. 524 (1952).  IN THE REALM OF STATE POWER, MARYLAND WAS
PERMITTED TO REQUIRE ALL CANDIDATES TO TAKE AN OATH THAT THEY WERE NOT
ENGAGED IN ANY ATTEMPT TO OVERTHROW THE GOVERNMENT BY FORCE AND
VIOLENCE, GERENDE V. BOARD OF SUPERVISORS, 341 U.S. 56 (1951); LOS
ANGELES WAS ALLOWED TO REQUIRE ALL EMPLOYEES TO TAKE A NON-COMMUNIST
OATH ON PENALTY OF DISCHARGE, GARNER V. BOARD OF PUBLIC WORKS, 341 U.S.
716 (1951); NEW YORK EXERCISED SIMILAR POWERS OVER PUBLIC SCHOOL
EMPLOYEES WITH OUR APPROVAL, ADLER V. BOARD OF EDUCATION, 342 U.S. 485
(1952); THE STATES WERE PERMITTED TO DISCHARGE ALL TEACHERS AND
"SECURITY AGENCY" EMPLOYEES WHO REFUSED TO ANSWER QUESTIONS CONCERNING
THEIR COMMUNIST AFFILIATIONS, BEILAN V. BOARD OF PUBLIC EDUCATION, 357
U.S. 399 (1958); LERNER V. CASEY, 357 U.S. 468 (1958); AND CALIFORNIA
AND ILLINOIS WERE PERMITTED TO DENY ADMISSION TO THE PRACTICE OF LAW OF
ALL APPLICANTS WHO REFUSED TO ANSWER QUESTIONS AS TO THEIR COMMUNIST
AFFILIATIONS, KONIGSBERG V. STATE BAR, 366 U.S. 36 (1961), AND IN RE
ANASTAPLO, 366 U.S. 82 (1961). 

NOR DO I SUBSCRIBE TO THE LOOSE GENERALIZATION THAT INDIVIDUAL GUILT
MAY BE CONCLUSIVELY PRESUMED FROM MEMBERSHIP IN THE PARTY.  ONE CANNOT
CONSIDER THE MATTER IN ISOLATION BUT MUST RELATE IT TO THE SUBJECT
MATTER INVOLVED AND THE LEGISLATIVE FINDINGS UPON WHICH THE ACTION IS
BASED.  IT IS TRUE THAT IN SCALES V. UNITED STATES, 367 U.S. 203
(1961), THE COURT FOUND THAT THE INTENTION OF THE CONGRESS IN THE SMITH
ACT WAS "TO REACH ONLY 'ACTIVE' MEMBERS HAVING ALSO A GUILTY KNOWLEDGE
AND INTENT."  AT 228.  BUT THAT WAS A CRIMINAL PROSECUTION UNDER THE
SMITH ACT WHICH, OF COURSE, CARRIED STRICTER STANDARDS.  AND, IN
ADDITION, THIS REQUIREMENT, AS LAID DOWN IN SCALES, WAS NOT HELD TO BE
A CONSTITUTIONAL MANDATE.  THE COURT WAS MERELY INTERPRETING A CRIMINAL
STATUTE WHICH DIRECTLY PROHIBITS MEMBERSHIP IN ORGANIZATIONS THAT COME
WITHIN ITS TERMS.  THE ACT HERE DOES NOT PROHIBIT MEMBERSHIP, BUT
MERELY RESTRICTS MEMBERS IN A FIELD IN WHICH THE CONGRESS HAS FOUND
DANGER TO OUR SECURITY.  NOR IS WIEMAN V. UPDEGRAFF, 344 U.S. 183
(1952), CITED BY THE MAJORITY, APPOSITE HERE.  THAT CASE DEALT WITH AN
OATH BASED ON MEMBERSHIP IN ORGANIZATIONS ON THE ATTORNEY GENERAL'S
LIST OF SUBVERSIVE GROUPS.  THE ACT CONDEMNED THE EMPLOYEE WHO WAS A
MEMBER OF ANY LISTED ORGANIZATION REGARDLESS OF WHETHER HE ACTUALLY
KNEW THE ORGANIZATION WAS LISTED; FURTHERMORE, THE STATUTE PROSCRIBED
PAST MEMBERSHIP IN THE LISTED ORGANIZATIONS.  HERE PROOF OF ACTUAL
MEMBERSHIP IS NECESSARY AND NOTICE OF REGISTRATION OR ENTRY OF A FINAL
ORDER DIRECTING REGISTRATION UNDER THE ACT IS REQUIRED.  FINALLY, THE
MEMBER OF THE PARTY HERE CAN AVOID THE ACT'S SANCTIONS BY TERMINATING
HIS MEMBERSHIP, WHICH WAS NOT POSSIBLE IN WIEMAN.  APPELLANTS ALSO
DEPEND ON ADLER V. BOARD OF EDUCATION, 342 U.S. 485 (1952), WHICH
UPHELD A STATUTE WITH A REBUTTABLE PRESUMPTION THAT MEMBERS OF THE
PARTY SUPPORTED COMMUNIST OBJECTIVES.  THE COURT DID NOT HOLD THAT THE
OPPORTUNITY TO REBUT WAS CONSTITUTIONALLY REQUIRED IN THE CIRCUMSTANCES
OF THAT CASE, BUT EVEN IF IT HAD, ADLER WOULD NOT CONTROL HERE.  THE
EVIDENCE BEFORE CONGRESS AS TO THE DANGER TO NATIONAL SECURITY WAS OF
SUCH STRENGTH THAT IT WARRANTED THE DENIAL OF PASSPORTS, A MUCH LESS
ONEROUS DISABILITY THAN LOSS OF EMPLOYMENT.    FOR THESE REASONS, I
WOULD AFFIRM. 

MR. JUSTICE WHITE JOINS IN SECTION I OF THIS DISSENT AND FOR THE
REASONS STATED THEREIN WOULD AFFIRM THE JUDGMENT. 
..END :


















BERMAN V. UNITED STATES 378 U.S. 530 


NO. 245.  ARGUED MARCH 26, 1964.  - DECIDED JUNE 22, 1964.  - JUDGMENT
AFFIRMED. 


BERMAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IS
AFFIRMED.  UNITED STATES V. ROBINSON, 361 U.S. 220. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS,
AND MR. JUSTICE GOLDBERG JOIN, DISSENTING. 

THIS CASE SEEMS TO ME TO BE DECIDED ON THE PREMISE THAT IT IS MORE
IMPORTANT THAT THE FEDERAL RULES OF CRIMINAL PROCEDURE BE SLAVISHLY
FOLLOWED THAN THAT JUSTICE BE DONE.  I CANNOT AGREE TO ANY SUCH
PRINCIPLE AND THEREFORE DISSENT. 

PETITIONER WAS CONVICTED IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK ON TWO COUNTS - ONE OF POSSESSING
COUNTERFEIT CURRENCY AND ONE OF RECEIVING STOLEN SECURITIES.  HE WAS
SENTENCED TO CONCURRENT PRISON TERMS OF TWO YEARS ON EACH COUNT AND A
TOTAL FINE OF $2,000.  HE DECIDED TO APPEAL.  FEDERAL RULE OF CRIMINAL
PROCEDURE 37(A)(2) REQUIRES A NOTICE OF APPEAL TO BE FILED WITHIN 10
DAYS.  HERE THE TENTH DAY FELL ON SATURDAY.  ON THE PRECEDING FRIDAY AN
ASSOCIATE TO WHOM PETITIONER'S ATTORNEY HAD GIVEN THE NOTICE OF APPEAL
FOR FILING LEFT THE OFFICE WITH A FEVER AND WENT HOME TO BED, WHERE HE
STAYED UNTIL LATE SUNDAY.  BECAUSE OF THE ASSOCIATE'S ILLNESS, THE
NOTICE WAS NOT FILED ON SATURDAY; INSTEAD, IT WAS FILED ON MONDAY
MORNING.  THE COURT OF APPEALS, ON MOTION OF THE GOVERNMENT, DISMISSED
THE APPEAL ON THE GROUND THAT UNDER RULE 37(A)(2) AND RULE 45(A) THE
NOTICE FOR APPEAL HAD BEEN FILED ONE DAY LATE.  TWO DAYS AFTER THIS
DISMISSAL, PETITIONER, AS AUTHORIZED BY FED. RULE CRIM. PROC. 35, MOVED
IN THE DISTRICT COURT FOR REDUCTION OF THE SENTENCE.  THIS MOTION, WITH
SUPPORTING AFFIDAVITS, POINTED OUT TO THE DISTRICT COURT THAT
PETITIONER'S APPEAL HAD BEEN DISMISSED BECAUSE IT WAS ONE DAY LATE. 
INDEED, A PRINCIPAL GROUND URGED UPON THE COURT FOR ACTING ON THE
MOTION WAS THAT GRANTING THE MOTION WOULD ENABLE PETITIONER TO APPEAL
FROM THE AMENDED SENTENCE AND CHALLENGE THE VALIDITY OF THE ORIGINAL
CONVICTION.  THE PROSECUTING ATTORNEY OBJECTED, SAYING, "I THINK HE HAS
HAD HIS ONE SHOT, AND IT'S ALL OVER.  HE HAS NO FURTHER RIGHT TO APPEAL
IF THE SENTENCE IS REDUCED."  THE DISTRICT JUDGE, STATING THAT HIS
UNDERSTANDING WAS "CONTRARY" TO THAT OF THE PROSECUTOR, GRANTED
PETITIONER'S MOTION AND, EXERCISING HIS AUTHORITY UNDER RULE 35,
REDUCED THE SENTENCE ON EACH COUNT FROM TWO YEARS TO ONE YEAR AND EIGHT
MONTHS AND REDUCED THE FINE ON EACH COUNT.  THE FOLLOWING DAY,
PETITIONER'S COUNSEL FILED A SECOND NOTICE OF APPEAL, BUT AGAIN THE
COURT OF APPEALS GRANTED THE GOVERNMENT'S MOTION TO DISMISS, REJECTING
THE DISTRICT COURT'S HOLDING THAT THE TIME FOR APPEAL BEGAN TO RUN ANEW
UPON THE PARTIAL REJECTION OF THE DEFENDANT'S RULE 35 MOTION.  THIS
COURT NOW AFFIRMS WITH THE SIMPLE CITATION OF UNITED STATES V.
ROBINSON, 361 U.S. 220.  BECAUSE I THINK THAT UNITED STATES V. ROBINSON
SHOULD BE CONFINED TO ITS PARTICULAR FACTS, AND FOR A NUMBER OF OTHER
REASONS, I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

IN THIS CASE PETITIONER, BERMAN, HAS CONTENDED SINCE THE TIME OF HIS
FIRST APPEAL THAT EVIDENCE INTRODUCED AT HIS TRIAL HAD BEEN OBTAINED AS
A RESULT OF AN UNLAWFUL SEARCH AND SEIZURE AND THAT A STATEMENT BY WAY
OF A CONFESSION MADE BY HIM WAS INVOLUNTARY AND THEREFORE SHOULD HAVE
BEEN EXCLUDED AS A VIOLATION OF THE FIFTH AMENDMENT.  THE MOST
PERFUNCTORY REVIEW OF THIS RECORD SHOWS THAT NEITHER OF THOSE TWO
QUESTIONS IS FRIVOLOUS.*  IN FAY V. NOIA, 372 U.S. 391, THIS COURT,
AFTER AN EXHAUSTIVE DISCUSSION OF THE QUESTION AND THE CITATION OF MANY
PRIOR DECISIONS OF THIS COURT, HELD THAT A DEFENDANT WHO HAD BEEN
CONVICTED BY USE OF A COERCED CONFESSION IN A STATE COURT COULD OBTAIN
RELIEF IN A FEDERAL HABEAS CORPUS PROCEEDING NOTWITHSTANDING THE FACT
OF A PROCEDURAL DEFAULT IN THE STATE COURTS WHICH BARRED ANY CHALLENGE
TO THE CONVICTION IN THOSE COURTS.  IT IS UNTHINKABLE THAT THE SAME
RULE SHOULD NOT BE APPLIED IN FEDERAL COURTS SO AS TO GRANT RELIEF TO A
DEFENDANT WHO HAS BEEN DENIED A FEDERALLY GUARANTEED RIGHT BECAUSE OF
HIS FAILURE TO COMPLY WITH THE RULE WHICH REQUIRES THE NOTICE OF APPEAL
TO BE FILED WITHIN 10 DAYS.  IT IS PARTICULARLY ABHORRENT TO THINK THAT
SUCH A RULE CAN BE ENFORCED IN THE FEDERAL COURT WHERE, AS HERE, THE
SOLE REASON FOR CUTTING OFF THE DEFENDANT'S RIGHT OF APPEAL TO THE
COURT OF APPEALS IS THE FACT THAT, AFTER THE DEFENDANT HAS DECIDED TO
APPEAL, THE LAWYER TO WHOM HE ENTRUSTS THE DUTY OF PHYSICALLY
TRANSPORTING HIS NOTICE OF APPEAL TO THE COURT OF APPEALS FAILS TO GET
IT THERE BECAUSE HE IS TAKEN ILL. 

*IN ADDITION TO THOSE QUESTIONS SOUGHT TO BE RAISED BY PETITIONER IN
HIS APPEAL, THIS COURT'S DECISION IN JACKSON V. DENNO, ANTE, P. 368,
CREATES A THIRD.  THE JUDGE IN THIS CASE DID NOT HIMSELF PASS ON THE
VOLUNTARINESS OF BERMAN'S CONFESSION; INSTEAD, HE CHARGED THE JURY THAT
THEY MUST BE THE "SOLE JUDGES" OF THE VOLUNTARINESS OF THE CONFESSION. 
IN SO DOING, THE JUDGE FOLLOWED WHAT IS CALLED THE "NEW YORK RULE" - A
RULE WHICH THIS COURT IN JACKSON SAYS IS UNCONSTITUTIONAL. 

MOREOVER, THE COURT IN THE ROBINSON CASE, WHICH THE COURT NOW HOLDS
IS CONTROLLING HERE, EXPRESSLY STATED, 361 U.S., AT 230 N. 14, THAT THE
ALLOWANCE OF AN APPEAL AFTER EXPIRATION OF THE PRESCRIBED TIME: 

"SEEMS UNNECESSARY FOR THE ACCOMPLISHMENT OF SUBSTANTIAL JUSTICE, FOR
THERE ARE A NUMBER OF COLLATERAL REMEDIES AVAILABLE TO REDRESS DENIAL
OF BASIC RIGHTS.  EXAMPLES ARE:  THE POWER OF A DISTRICT COURT UNDER
RULE 35 TO CORRECT AN ILLEGAL SENTENCE AT ANY TIME  ...  ; THE POWER OF
A DISTRICT COURT TO ENTERTAIN A COLLATERAL ATTACK UPON A JUDGMENT OF
CONVICTION AND TO VACATE, SET ASIDE OR CORRECT THE SENTENCE UNDER 28
U.S.C. SEC. 2255  ...  ." 

IT IS NOT STRANGE THAT THE COURT IN ROBINSON DIRECTED ITS ATTENTION
TO SEC. 2255 PROCEEDINGS SINCE THAT SECTION EXPRESSLY PROVIDES THAT "A
PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED BY ACT OF
CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND THAT THE
SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION  ...  MAY MOVE
THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR CORRECT
THE SENTENCE." 

MY BELIEF IS THAT, EVEN IF RULE 37(A)(2) IS HELD TO REQUIRE DISMISSAL
OF THIS APPEAL, AND I DO NOT THINK IT SHOULD BE, THIS COURT SHOULD
REMAND THE CASE TO THE COURT OF APPEALS WITH DIRECTIONS TO TREAT THE
APPEAL AS AN APPLICATION FOR COLLATERAL RELIEF UNDER 28 U.S.C. SEC.
2255.  SUCH A COURSE WAS FOLLOWED IN SIMILAR CIRCUMSTANCES BY THE TENTH
CIRCUIT IN HIXON V. UNITED STATES, 268 F.2D 667, WHERE, AS HERE, THE
APPEAL WAS LATE UNDER RULE 37(A)(2).  AND WE SAID IN BARTONE V. UNITED
STATES, 375 U.S. 52, 54: 

"WHERE STATE PROCEDURAL SNARLS OR OBSTACLES PRECLUDE AN EFFECTIVE
STATE REMEDY AGAINST UNCONSTITUTIONAL CONVICTIONS, FEDERAL COURTS HAVE
NO OTHER CHOICE BUT TO GRANT RELIEF IN THE COLLATERAL PROCEEDING.  SEE
FAY V. NOIA, 372 U.S. 391.  BUT THE SITUATION IS DIFFERENT IN FEDERAL
PROCEEDINGS, OVER WHICH BOTH THE COURTS OF APPEALS AND THIS COURT
(MCNABB V. UNITED STATES, 318 U.S. 332) HAVE BROAD POWERS OF
SUPERVISION.  IT IS MORE APPROPRIATE, WHENEVER POSSIBLE, TO CORRECT
ERRORS REACHABLE BY THE APPEAL RATHER THAN REMIT THE PARTIES TO A NEW
COLLATERAL PROCEEDING." 

THIS IS PRECISELY WHAT I THINK SHOULD BE DONE IN THIS CASE BUT THE
COURT INSISTS ON AFFIRMING THE HARSH ACTION OF THE COURT OF APPEALS IN
DISMISSING THE APPEAL.  FOR A NUMBER OF REASONS, HOWEVER, I WOULD NOT
AFFIRM THAT DISMISSAL. 

I BELIEVE THAT PETITIONER'S ORIGINAL APPEAL WAS TIMELY UNDER RULE
37(A)(2) IF THAT RULE IS GIVEN A LIBERAL, BUT PERMISSIBLE, CONSTRUCTION
MORE CONSONANT WITH THE ENDS OF JUSTICE.  THE RULE SAYS THAT APPEALS
MUST BE TAKEN "WITHIN 10 DAYS" AFTER THE ENTRY OF THE ORDER APPEALED
FROM.  RULE 45(A) SAYS THAT THE LAST DAY OF THE 10-DAY PERIOD IS NOT TO
BE COUNTED IF "IT IS A SUNDAY OR LEGAL HOLIDAY"; IN SUCH CASE, THE
PERIOD RUNS "UNTIL THE END OF THE NEXT DAY WHICH IS NEITHER A SUNDAY
NOR A HOLIDAY."  NEITHER OF THESE RULES SAYS WHAT IS TO HAPPEN IF THE
TENTH DAY IS A SATURDAY, AND NEITHER DEFINES WHAT IS A "LEGAL
HOLIDAY.'  RULE 56, HOWEVER, SHEDS SOME LIGHT, FOR IT STATES THAT
FEDERAL COURTS SHALL BE OPEN FOR THE FILING OF PAPERS DURING BUSINESS
HOURS "ON DAYS EXCEPT SUNDAYS AND LEGAL HOLIDAYS," AND THE NOTES OF THE
ADVISORY COMMITTEE RESPONSIBLE FOR THE LANGUAGE OF THE CRIMINAL RULES
STATE THAT "LEGAL HOLIDAYS" INCLUDE NOT ONLY FEDERAL HOLIDAYS BUT ALSO
"HOLIDAYS PRESCRIBED BY THE LAWS OF THE STATE WHERE THE CLERK'S OFFICE
IS LOCATED."  ON THIS POINT, NEW YORK LAW IS SPECIFIC.  IN NEW YORK
CITY, WHERE THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK SITS, THE OFFICES OF CLERKS OF COURSE ARE CLOSED ON
SATURDAYS BY A STATE STATUTE WHICH PROVIDES:  "WHENEVER THE LAST DAY ON
WHICH ANY PAPER SHALL BE FILED OR ACT DONE OR PERFORMED IN ANY SUCH
OFFICE EXPIRES ON SATURDAY, THE TIME THEREFOR IS HEREBY EXTENDED TO AND
INCLUDING THE NEXT BUSINESS DAY."  N.Y. JUDICIARY LAW, SEC. 282 (1963
CUM. POCKET PART).  THE PRACTICE IS THE SAME IN OTHER PUBLIC OFFICES IN
NEW YORK; FOR EXAMPLE, SATURDAY IS NOT A BUSINESS DAY IN THE OFFICES OF
THE COUNTY CLERK IN NEW YORK CITY, N.Y. COUNTY LAW, SEC. 902, OR IN
COUNTY OFFICES IN OTHER COUNTIES, ID., SEC. 206-A (1963 CUM. POCKET
PART). 

THE SITUATION, SIMPLY PUT, IS THIS:  THE FEDERAL RULES SAY THAT AN
APPEAL MUST BE FILED WITHIN 10 DAYS.  THEY OBVIOUSLY INTEND TO EXTEND
THE TIME WHEN THE TENTH DAY FALLS UPON SOME DAY UPON WHICH THE BAR IS
NOT ABLE OR ACCUSTOMED TO FILING LEGAL PAPERS IN THE COURTS - SUCH AS
SUNDAYS AND LEGAL HOLIDAYS.  THE RULES REFER PRACTITIONERS AND COURTS
TO STATE LAWS DEFINING LEGAL HOLIDAYS, THE BETTER TO AVOID PITFALLS FOR
LOCAL LAWYERS WHO MIGHT OTHERWISE LOSE THEIR CLIENTS' CASES BECAUSE OF
THEIR RELIANCE UPON THE HOLIDAY CLOSINGS OF LOCAL COURTS.  AT THE VERY
OUTSET OF THE RULES, THEIR AUTHORS PROCLAIMED THAT THE RULES "ARE
INTENDED TO PROVIDE FOR THE JUST DETERMINATION OF EVERY CRIMINAL
PROCEEDING" AND SO COMMANDED COURTS TO CONSTRUE THEM SO AS "TO SECURE
SIMPLICITY IN PROCEDURE, FAIRNESS IN ADMINISTRATION AND THE ELIMINATION
OF UNJUSTIFIABLE EXPENSE AND DELAY."  FED. RULE CRIM. PROC. 2.  WITH
THESE PRINCIPLES IN MIND, HOW, THEN, CAN WE TAKE THE PROBLEM OF
DECIDING WHAT HAPPENS WHEN THE TENTH DAY FALLS ON SATURDAY - SOMETHING
NOT EXPRESSLY COVERED BY THE RULES - AND TREAT IT AS IF IT WERE AN
IMPERSONAL, ACADEMIC EXERCISE IN SYMBOLIC LOGIC?  HERE, QUITE CONTRARY
TO THE RULES' PROMISE, CONSTITUTIONAL QUESTIONS ARE DENIED A HEARING ON
APPEAL BECAUSE OF A DRACONIAN INTERPRETATION OF THOSE VERY RULES.  THE
ASSOCIATE WHO BECAME ILL STATED, BY AFFIDAVIT IN THE COURT OF APPEALS,
THAT HE WAS NOT AWARE THAT THE FEDERAL COURTS DID NOT FOLLOW THE NEW
YORK PRACTICE OF EXTENDING TIME FOR FILING UNTIL MONDAY WHERE IT WOULD
OTHERWISE RUN OUT ON SATURDAY.  THIS AFFIDAVIT IS UNDISPUTED.  WHERE
THE FEDERAL CRIMINAL RULES ARE NOT CLEAR AND LEAVE A PARTICULAR
QUESTION TO A COURT'S INTERPRETATION, I FAIL TO SEE HOW PROCEDURE IS
SIMPLIFIED, ADMINISTRATION OF JUSTICE IS MADE FAIRER, AND EXPENSE AND
DELAY ARE ELIMINATED BY CHOOSING THE STRICTEST AND MOST RIGOROUS
POSSIBLE INTERPRETATION OF THE RULES. 

THERE IS ANOTHER WAY IN WHICH THE RULES COULD BE FAIRLY CONSTRUED SO
AS TO AVOID THE UNJUST RESULT THE COURT HERE REACHES.  AFTER THE
APPELLATE COURT DISMISSED THE ORIGINAL APPEAL, PETITIONER WENT BACK TO
THE DISTRICT COURT AND MADE THE RULE 35 MOTION, AS STATED ABOVE.  THAT
MOTION WAS GRANTED, AND THE NEXT DAY PETITIONER FILED A SECOND NOTICE
OF APPEAL; AGAIN THE COURT OF APPEALS DISMISSED.  I THINK THE REASONING
OF COREY V. UNITED STATES, 375 U.S. 169, FITS THIS CASE.  IN COREY, THE
PETITIONER HAD BEEN COMMITTED TO CUSTODY UNDER 18 U.S.C. SEC. 4208(B),
PENDING A REPORT FROM THE BUREAU OF PRISONS.  THREE MONTHS LATER, AFTER
THE REPORT HAD BEEN RECEIVED, COREY WAS SENTENCED.  THREE DAYS AFTER
THAT HE FILED A NOTICE OF APPEAL, BUT THE COURT OF APPEALS DISMISSED,
HOLDING THAT THE 10 DAYS FOR APPEAL HAD BEGUN RUNNING FROM THE TIME OF
THE ORIGINAL CUSTODY ORDER.  THIS COURT REVERSED, HOLDING THAT AN
APPEAL COULD BE TAKEN, AT THE DEFENDANT'S OPTION, EITHER FROM THE
ORIGINAL ORDER OR FROM THE FINAL SENTENCING.  SIMILARLY, IN THIS CASE I
THINK THE FACT THAT PETITIONER COULD HAVE APPEALED FROM THE FIRST
JUDGMENT OF THE DISTRICT COURT DID NOT FORECLOSE HIM FROM APPEALING
FROM THE SECOND, AMENDED JUDGMENT.  AS WE SAID IN COREY, 375 U.S., AT
175, "SIMPLY BECAUSE A DEFENDANT COULD HAVE SOUGHT REVIEW OF HIS
CONVICTION" AFTER THE INITIAL ORDER DOES NOT MEAN THAT CONGRESS
INTENDED TO DENY REVIEW FROM A LATER ORDER.  FURTHERMORE, WE HAVE
CONSISTENTLY HELD THAT ONCE A REVIEWING COURT HAS JURISDICTION OF ONE
ISSUE OF A CASE (HERE THE REDUCTION OF SENTENCE), IT MAY CONSIDER
QUESTIONS ARISING IN EARLIER STAGES OF THE CASE.  SEE MERCER V.
THERIOT, 377 U.S. 152, 153; URIE V. THOMPSON, 337 U.S. 163, 171-173. 

ODDLY ENOUGH, BECAUSE THE COURT NOW HOLDS THERE IS NO APPEAL FROM THE
SECOND ORDER OF THE DISTRICT COURT, THIS MAN CONVICTED OF A CRIME IS
WORSE OFF THAN A CIVIL LITIGANT, WHOSE TIMELY MOTION UNDER FED. RULE
CIV. PROC. 73 TO "ALTER OR AMEND" THE JUDGMENT WOULD CAUSE THE TIME FOR
AN APPEAL TO RUN ANEW.  MOREOVER, EVEN A MOTION WHICH IS NOT TIMELY HAS
BEEN HELD SUFFICIENT IN CIVIL CASES UNDER RULE 73'S PROVISION DEALING
WITH "EXCUSABLE NEGLECT."  SEE WOLFSOHN V. HANKIN, 376 U.S. 203;
THOMPSON V. IMMIGRATION AND NATURALIZATION SERVICE, 375 U.S. 384;
HARRIS TRUCK LINES, INC., V. CHERRY MEAT PACKER'S INC., 371 U.S. 215. 
SURELY THE RULE IN CRIMINAL CASES SHOULD NOT BE MORE STRICTLY APPLIED. 
EVEN MORE ODD IS THE FACT THAT THIS PETITIONER, BECAUSE HE HAD A
LAWYER, IS WORSE OFF THAN A DEFENDANT WHO DOES NOT HAVE A LAWYER.  CF.
FALLEN V. UNITED STATES, ANTE, P. 139.  THE SAME RULE WHICH IS BEING
USED HERE TO CUT OFF PETITIONER'S APPEAL SAYS THAT WHEN A DEFENDANT NOT
REPRESENTED BY COUNSEL IS SENTENCED, "THE DEFENDANT SHALL BE ADVISED OF
HIS RIGHT TO APPEAL AND IF HE SO REQUESTS, THE CLERK SHALL PREPARE AND
FILE" THE NOTICE OF APPEAL FOR THE DEFENDANT.  HERE PETITIONER TOOK THE
EQUIVALENT STEPS:  HE EXECUTED THE NOTICE OF APPEAL FOR HIS LAWYER ON
THURSDAY.  BUT THE LAWYER'S ASSOCIATE FELL ILL, AND THE COURT OF
APPEALS TREATED SATURDAY IN A WAY MOST APT TO CONFUSE AND TRAP EVEN A
PERFECTLY HEALTHY NEW YORK LAWYER FAMILIAR WITH LOCAL NEW YORK
PRACTICE.  HAVING SEVERAL WAYS IN WHICH IT COULD HAVE HEARD THE MERITS
OF PETITIONER'S CONSTITUTIONAL CLAIM, THE COURT OF APPEALS, NOW
FOLLOWED BY THIS COURT I REGRET TO SAY, CHOSE TO INTERPRET THE RULES
NOT SO AS TO REACH, BUT RATHER TO DEFEAT, A "JUST DETERMINATION" OF
THIS CASE. 

THROUGHOUT HISTORY MEN HAVE HAD TO SUFFER FROM LEGAL SYSTEMS WHICH
WORSHIPPED RIGID FORMALITIES AT THE EXPENSE OF JUSTICE.  IT IS FOR THIS
THAT WE REMEMBER THE LAWS OF THE MEDES AND PERSIANS AND THE INJUSTICE
SPAWNED BY THE TORTUOUS LABYRINTH OF COMMON-LAW PLEADING WHICH IT TOOK
THE CREATION OF COURTS OF EQUITY TO COUNTERACT.  OF COURSE, ANY
CIVILIZED SYSTEM OF JUDICIAL ADMINISTRATION SHOULD HAVE ENOUGH
LOOSENESS IN THE JOINTS TO AVERT GROSS DENIALS OF A LITIGANT'S RIGHTS
GROWING OUT OF HIS LAWYER'S MISTAKE OR EVEN NEGLIGENCE IN FAILING TO
FILE THE PROPER KIND OF PLEADING AT PRECISELY THE PRESCRIBED MOMENT. 
CF. LINK V. WABASH R. CO., 370 U.S. 626, 636 (DISSENTING OPINION).  THE
CRIMINAL RULES WERE FRAMED WITH THE DECLARED PURPOSE OF ENSURING THAT
JUSTICE NOT BE THWARTED BY THOSE WITH TOO LITTLE IMAGINATION TO SEE
THAT PROCEDURAL RULES ARE NOT ENDS IN THEMSELVES, BUT SIMPLY MEANS TO
AN END:  THE ACHIEVEMENT OF EQUAL JUSTICE FOR ALL.  I HAVE NO DOUBT
THAT THE DISPOSITION OF THIS CASE WOULD HAVE BEEN VERY CONGENIAL TO THE
CLIMATE OF BARON PARKE'S DAY.  I CONFESS, HOWEVER, THAT I AM
UNCOMFORTABLE WITH THE NOTION THAT COURTS EXIST TO FASHION AND PRESERVE
RULES INVIOLATE INSTEAD OF TO APPLY THOSE RULES TO DO JUSTICE TO
LITIGANTS. 
..END :







DRESNER V. CITY OF TALLAHASSEE 378 U.S. 539 


NO. 35.  ARGUED OCTOBER 23, 1963.  - QUESTIONS CERTIFIED TO SUPREME
COURT OF FLORIDA DECEMBER 2, 1963.  - DECIDED JUNE 22, 1964. 
CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 


DRESNER ET AL. V. CITY OF TALLAHASSEE. 

CERTIORARI TO THE CIRCUIT COURT OF FLORIDA, SECOND JUDICIAL CIRCUIT. 

PER CURIAM. 

THE QUESTIONS WHICH THIS COURT CERTIFIED TO THE SUPREME COURT OF
FLORIDA, 375 U.S. 136, HAVING BEEN ANSWERED IN THE AFFIRMATIVE, 164 SO.
2D 208, THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 
28 U.S.C. SEC. 1257. 
..END :














LEONARD V. UNITED STATES 378 U.S. 544 


NO. 1017, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; 324 F.2D
914, REVERSED AND REMANDED. 


TRIAL OF PETITIONER OVER HIS OBJECTION BY JURY SOME OF WHOSE MEMBERS
WERE SELECTED FROM PANEL IN WHOSE PRESENCE ANOTHER JURY IN SIMILAR
PRECEDING CASE HAD ANNOUNCED VERDICT OF HIS GUILT IS CLEARLY
ERRONEOUS. 

LEONARD V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

PETITIONER WAS CONVICTED IN SEPARATE TRIALS AND BY DIFFERENT JURIES
OF FORGING AND UTTERING ENDORSEMENTS ON GOVERNMENT CHECKS, 18 U.S.C.
SEC. 495, AND OF TRANSPORTATION OF A FORGED INSTRUMENT IN INTERSTATE
COMMERCE, 18 U.S.C. SEC. 2314.  THE TWO CASES WERE TRIED IN
SUCCESSION.  THE JURY IN THE CASE TRIED FIRST - FORGING AND UTTERING
ENDORSEMENTS - ANNOUNCED ITS GUILTY VERDICT IN OPEN COURT IN THE
PRESENCE OF THE JURY PANEL FROM WHICH THE JURORS WHO WERE TO TRY THE
SECOND CASE - TRANSPORTATION OF A FORGED INSTRUMENT - WERE SELECTED. 
PETITIONER IMMEDIATELY OBJECTED TO SELECTING A JURY FOR THE SECOND CASE
FROM AMONG MEMBERS OF THE PANEL WHO HAD HEARD THE GUILTY VERDICT IN THE
FIRST CASE.  THE OBJECTION WAS OVERRULED, AND THE ACTUAL JURY WHICH
FOUND PETITIONER GUILTY IN THE SECOND CASE CONTAINED FIVE JURORS WHO
HAD HEARD THE VERDICT IN THE FIRST CASE.  THE CONVICTION IN THE SECOND
CASE WAS AFFIRMED ON APPEAL, 324 F.2D 914, AND PETITIONER NOW SEEKS A
WRIT OF CERTIORARI. 

THE SOLICITOR GENERAL, IN HIS BRIEF FILED IN THIS COURT, STATES
THAT: 

"THE PROCEDURE FOLLOWED BY THE DISTRICT COURT IN SELECTING THE JURY
WAS, IN OUR VIEW, PLAINLY ERRONEOUS.  PROSPECTIVE JURORS WHO HAVE SAT
IN THE COURTROOM AND HEARD A VERDICT RETURNED AGAINST A MAN CHARGED
WITH A CRIME IN A SIMILAR CASE IMMEDIATELY PRIOR TO THE TRIAL OF
ANOTHER INDICTMENT AGAINST HIM SHOULD BE AUTOMATICALLY DISQUALIFIED
FROM SERVING AT THE SECOND TRIAL, IF THE OBJECTION IS RAISED AT THE
OUTSET." 

WE AGREE THAT UNDER THE CIRCUMSTANCES OF THIS CASE THE TRIAL COURT
ERRED IN DENYING PETITIONER'S OBJECTION.  ACCORDINGLY THE MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR A WRIT OF
CERTIORARI ARE GRANTED, THE JUDGMENT OF CONVICTION IS REVERSED, AND THE
CAUSE IS REMANDED FOR PRECEEDINGS IN CONFORMITY WITH THIS OPINION.  IT
IS SO ORDERD. 
..END :























COOPER V. PATE 378 U.S. 546 


NO. 1134, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED AND
JUDGMENT REVERSED.  REPORTED BELOW: 324 F.2D 165. 


COOPER V. PATE, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED. 

THE PETITIONER, AN INMATE AT THE ILLINOIS STATE PENITENTIARY, BROUGHT
AN ACTION UNDER 28 U.S.C. SEC. 1343 AND 42 U.S.C. SEC. 1983, SEC. 1979
OF THE REVISED STATUTES, ALLEGING THAT SOLELY BECAUSE OF HIS RELIGIOUS
BELIEFS HE WAS DENIED PERMISSION TO PURCHASE CERTAIN RELIGIOUS
PUBLICATIONS AND DENIED OTHER PRIVILEGES ENJOYED BY OTHER PRISONERS. 
THE DISTRICT COURT GRANTED THE RESPONDENT'S MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM ON WHICH RELIEF COULD BE GRANTED AND THE COURT
OF APPEALS AFFIRMED.  324 F.2D 165 (C.A. 7TH CIR.).  WE REVERSE THE
JUDGMENT BELOW.  TAKING AS TRUE THE ALLEGATIONS OF THE COMPLAINT, AS
THEY MUST BE ON MOTION TO DISMISS, THE COMPLAINT STATED A CAUSE OF
ACTION AND IT WAS ERROR TO DISMISS IT.  SEE PIERCE V. LAVALLEE, 293
F.2D 233 (C.A.2D CIR.); SEWELL V. PEGELOW, 291 F.2D 196 (C.A. 4TH
CIR.).
..END :
























DREWS V. MARYLAND 378 U.S. 547 


NO. 3.  DECIDED JUNE 22, 1964.  - JUDGMENT VACATED AND CASE REMANDED. 
REPORTED BELOW:  224 MD. 186, 167 A.2D 341. 


DREWS ET AL. V. MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT OF
APPEALS OF MARYLAND FOR CONSIDERATION IN LIGHT OF GRIFFIN V. MARYLAND,
ANTE, P. 130, AND BELL V. MARYLAND, ANTE, P. 226. 

MR. JUSTICE DOUGLAS WOULD REVERSE OUTRIGHT ON THE BASIS OF THE VIEWS
EXPRESSED IN HIS OPINION IN BELL V. MARYLAND, ANTE, P. 242. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT. 

..END :










WILLIAMS V. NORTH CAROLINA 378 U.S. 548 


NO. 4.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED.  REPORTED BELOW:  253 N.C. 804, 117 S.E.2D 824. 


WILLIAMS V. NORTH CAROLINA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT VACATED
AND THE CASE REMANDED TO THE SUPREME COURT OF NORTH CAROLINA FOR
CONSIDERATION IN LIGHT OF ROBINSON V. FLORIDA, ANTE, P. 153. 

MR. JUSTICE DOUGLAS WOULD REVERSE OUTRIGHT ON THE BASIS OF THE VIEWS
EXPRESSED IN HIS OPINION IN BELL V. MARYLAND, ANTE, P. 242. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT. 

..END :









ROGERS V. UNITED STATES 378 U.S. 549 


NO. 1011, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  REPORTED BELOW:  325 F.2D 485. 


ROGERS V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED TO THE UNIITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA FOR RESENTENCING IN LIGHT OF THE CONCESSIONS MADE
BY THE SOLICITOR GENERAL AND UPON AN EXAMINATION OF THE ENTIRE RECORD
IN  THE CASE. 
..END :












GREEN V. VIRGINIA 378 U.S. 550 


NO. 761.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENTS
VACATED; AND CASE REMANDED. 


GREEN ET AL. V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEAL OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENTS ARE
VACATED AND THE CASE REMANDED TO THE SUPREME COURT OF APPEALS OF
VIRGINIA FOR CONSIDERATION IN LIGHT OF PETERSON V. CITY OF GREENVILLE,
373 U.S. 244, AND ROBINSON V. FLORIDA, ANTE, P. 153. 

MR. JUSTICE DOUGLAS WOULD REVERSE OUTRIGHT ON THE BASIS OF THE VIEWS
EXPRESSED IN HIS OPINION IN BELL V. MARYLAND, ANTE, P. 242. 
..END :











MITCHELL V. CITY OF CHARLESTON 378 U.S. 551 


NO. 8.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  REPORTED BELOW:  239 S.C. 376, 123 S.E.2D 512. 


MITCHELL ET AL. V. CITY OF CHARLESTON. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH
CAROLINA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  BOUIE V. CITY OF COLUMBIA, ANTE, P. 347. 

MR. JUSTICE DOUGLAS WOULD REVERSE ON THE BASIS OF THE VIEWS EXPRESSED
IN HIS OPINION IN BELL V. MARYLAND, ANTE, P. 242. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT. 

..END :










HARRIS V. VIRGINIA 378 U.S. 552 


NO. 57, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


HARRIS ET AL. V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED TO THE SUPREME COURT OF APPEALS OF VIRGINIA FOR
CONSIDERATION IN LIGHT OF PETERSON V. CITY OF GREENVILLE, 373 U.S. 244,
AND ROBINSON V. FLORIDA, ANTE, P. 153. 

MR. JUSTICE DOUGLAS WOULD REVERSE OUTRIGHT ON THE BASIS OF THE VIEWS
EXPRESSED IN HIS OPINION IN BELL V. MARYLAND, ANTE, P. 242. 
..END :










SWANN V. ADAMS 378 U.S. 553 


NO. 297.  DECIDED JUNE 22, 1964.  - JUDGMENT REVERSED AND CASE
REMANDED.  - REPORTED BELOW:  214 F. SUPP. 811. 


SWANN V. ADAMS, SECRETARY OF STATE OF FLORIDA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

PER CURIAM. 

THE JUDGMENT BELOW IS REVERSED.  REYNOLDS V. SIMS, 377 U.S. 533.  THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE VIEWS
STATED IN OUR OPINIONS IN REYNOLDS V. SIMS AND IN THE OTHER CASES
RELATING TO STATE LEGISLATIVE APPORTIONMENT DECIDED ALONG WITH
REYNOLDS. 

MR. JUSTICE CLARK WOULD REVERSE ON THE GROUNDS STATED IN HIS OPINION
IN REYNOLDS V. SIMS, 377 U.S. 533, 587. 

MR. JUSTICE STEWART WOULD REMAND FOR FURTHER PROCEEDINGS CONSISTENT
WITH THE VIEWS EXPRESSED IN HIS DISSENTING OPINION IN LUCAS V. FORTY
FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S. 713, 744. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 589. 
..END :



MEYERS V. THIGPEN 378 U.S. 554 


NO. 381.  DECIDED JUNE 22, 1964.  - REPORTED BELOW:  211 F. SUPP. 826. 


JUDGMENT AFFIRMED ON THE MERITS, AND CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH VIEWS STATED IN REYNOLDS V. SIMS, 377 U.S.
533. 

MEYERS, SECRETARY OF STATE OF WASHINGTON, V. THIGPEN ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF WASHINGTON. 

PER CURIAM. 

THE JUDGMENT BELOW IS AFFIRMED ON THE MERITS, INSOFAR AS IT RELATES
TO THE APPORTIONMENT OF SEATS IN THE WASHINGTON LEGISLATURE.  REYNOLDS
V. SIMS, 377 U.S. 533.  THE CASE IS REMANDED FOR FURTHER PROCEEDINGS,
WITH RESPECT TO RELIEF, CONSISTENT WITH THE VIEWS STATED IN OUR
OPINIONS IN REYNOLDS V. SIMS AND IN THE OTHER CASES RELATING TO STATE
LEGISLATIVE APPORTIONMENT DECIDED ALONG WITH REYNOLDS.   SINCE NO
QUESTION RELATING TO THE CORRECTNESS OF THAT PART OF THE DECISION BELOW
HOLDING VALID THE SCHEME OF CONGRESSIONAL DISTRICTING IN THE STATE OF
WASHINGTON IS PRESENTED IN THIS APPEAL, WE DO NOT CONSIDER OR PASS UPON
THAT ISSUE. 

MR. JUSTICE CLARK WOULD AFFIRM ON THE GROUNDS STATED IN HIS OPINION
IN REYNOLDS V. SIMS, 377 U.S. 533, 587. 

MR. JUSTICE STEWART WOULD REMAND FOR FURTHER PROCEEDINGS CONSISTENT
WITH THE VIEWS EXPRESSED IN HIS DISSENTING OPINION IN LUCAS V. FORTY
FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S. 713, 744. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533.  589. 
..END :
















LUCAS V. ADAMS 378 U.S. 555 


NO. 559.  DECIDED JUNE 22, 1964.  - AFFIRMED. 


LUCAS ET AL. V. ADAMS, SECRETARY OF STATE OF FLORIDA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF FLORIDA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















NOLAN V. RHODES 378 U.S. 556 


NO. 454.  DECIDED JUNE 22, 1964.* - JUDGMENT REVERSED AND CASES
REMANDED.  REPORTED BELOW:  218 F. SUPP. 953. 

*TOGETHER WITH NO. 455, SIVE ET AL. V. ELLIS ET AL., ALSO ON APPEAL
FROM THE SAME COURT. 


NOLAN V. RHODES, GOVERNOR OF OHIO, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THE JUDGMENT BELOW IS REVERSED.  REYNOLDS V. SIMS, 377 U.S. 533.  THE
CASES ARE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE VIEWS
STATED IN OUR OPINIONS IN REYNOLDS V. SIMS AND IN THE OTHER CASES
RELATING TO STATE LEGISLATIVE APPORTIONMENT DECIDED ALONG WITH
REYNOLDS. 

MR. JUSTICE CLARK WOULD REVERSE ON THE GROUNDS STATED IN HIS OPINION
IN REYNOLDS V. SIMS, 377 U.S. 533, 587. 

MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT BECAUSE THE OHIO SYSTEM
OF LEGISLATIVE APPORTIONMENT IS CLEARLY A RATIONAL ONE AND CLEARLY DOES
NOT FRUSTRATE EFFECTIVE MAJORITY RULE. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 589. 
..END :






















WEST V. CARR 378 U.S. 557 


NO. 706.  DECIDED JUNE 22, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  REPORTED BELOW:  212 TENN. 367, 370 S.W.2D 469. 


WEST ET AL. V. CARR ET AL. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE, MIDDLE DIVISION. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















GLASS V. HANCOCK COUNTY ELECTION COMMISSION 378 U.S. 558 


NO. 853.  DECIDED JUNE 22, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  156 SO. 2D 825. 


GLASS ET AL. V. HANCOCK COUNTY ELECTION COMMISSION ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WILLIAMS V. MOSS 378 U.S. 558 


NO. 476.  DECIDED JUNE 22, 1964.* - REPORTED BELOW:  220 F. SUPP. 149. 

*TOGETHER WITH NO. 534, OKLAHOMA FARM BUREAU ET AL. V. MOSS ET AL.,
AND NO. 546, BALDWIN ET AL. V. MOSS, BOTH ALSO ON APPEAL FROM THE SAME
COURT. 


JUDGMENT AFFIRMED ON THE MERITS, AND CASES REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH VIEWS STATED IN REYNOLDS V. SIMS, 377 U.S.
533. 

WILLIAMS, TREASURER OF OKLAHOMA, ET AL. V. MOSS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA.  PER CURIAM. 

THE JUDGMENT BELOW IS AFFIRMED ON THE MERITS.  REYNOLDS V. SIMS, 377
U.S. 533.  THE CASES ARE REMANDED FOR FURTHER PROCEEDINGS, WITH RESPECT
TO RELIEF, CONSISTENT WITH THE VIEWS STATED IN OUR OPINIONS IN REYNOLDS
V. SIMS AND IN THE OTHER CASES RELATING TO STATE LEGISLATIVE
APPORTIONMENT DECIDED ALONG WITH REYNOLDS, SHOULD THAT BECOME
NECESSARY. 

MR. JUSTICE CLARK WOULD AFFIRM ON THE MERITS ON THE GROUNDS STATED IN
HIS OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 587. 

MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT INSOFAR AS IT HOLDS
THAT OKLAHOMA'S SYSTEM OF LEGISLATIVE APPORTIONMENT VIOLATES THE EQUAL
PROTECTION CLAUSE. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 589. 
..END :


















GERMANO V. KERNER 378 U.S. 560 


NO. 636.  DECIDED JUNE 22, 1964.  - JUDGMENT REVERSED AND CASE
REMANDED.  REPORTED BELOW:  220 F. SUPP. 230. 


GERMANO ET AL. V. KERNER, GOVERNOR OF ILLINOIS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE JUDGMENT BELOW IS REVERSED.  REYNOLDS V. SIMS, 377 U.S. 533;
LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S. 713.  THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE VIEWS
STATED IN OUR OPINIONS IN REYNOLDS V. SIMS AND IN THE OTHER CASES
RELATING TO STATE LEGISLATIVE APPORTIONMENT DECIDED ALONG WITH
REYNOLDS. 

MR. JUSTICE CLARK AND MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT,
BECAUSE, AS THE OPINIONS OF JUDGE CAMPBELL AND JUDGE SCHNACKENBERG
DEMONSTRATE, 220 F. SUPP. 230, 235, THE ILLINOIS SYSTEM OF LEGISLATIVE
APPORTIONMENT IS ENTIRELY RATIONAL AND DOES NOT FRUSTRATE EFFECTIVE
MAJORITY RULE. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 589. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















MARSHALL V. HARE 378 U.S. 561 


NO. 962.  DECIDED JUNE 22, 1964.  - JUDGMENT REVERSED AND CASE
REMANDED.  - REPORTED BELOW:  227 F. SUPP. 989. 


MARSHALL ET AL. V. HARE, SECRETARY OF STATE OF MICHIGAN, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

PER CURIAM. 

THE JUDGMENT BELOW IS REVERSED.  REYNOLDS V. SIMS, 377 U.S. 533;
LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S. 713.  THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE VIEWS
STATED IN OUR OPINIONS IN REYNOLDS V. SIMS AND IN THE OTHER CASES
RELATING TO STATE LEGISLATIVE APPORTIONMENT DECIDED ALONG WITH
REYNOLDS. 

MR. JUSTICE CLARK AND MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT
BECAUSE THE MICHIGAN SYSTEM OF LEGISLATIVE APPORTIONMENT IS CLEARLY A
RATIONAL ONE AND CLEARLY DOES NOT FRUSTRATE EFFECTIVE MAJORITY RULE. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 589. 
..END :





TOWN OF FRANKLIN V. BUTTERWORTH 378 U.S. 562 


NO. 1032.  DECIDED JUNE 22, 1964.  - 229 F. SUPP. 754, AFFIRMED. 


TOWN OF FRANKLIN ET AL. V. BUTTERWORTH ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SENK V. PENNSYLVANIA 378 U.S. 562 


NO. 900, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUGDMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  412 PA. 184, 194 A.2D
221. 


SENK V. PENNSYLVANIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME
COURT OF PENNSYLVANIA IS VACATED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT IN JACKSON
V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :








HEARNE V. SMYLIE 378 U.S. 563 


NO. 1075.  DECIDED JUNE 22, 1964.  - JUDGMENT REVERSED AND CASE
REMANDED.  - REPORTED BELOW:  225 F. SUPP. 645. 


HEARNE ET AL. V. SMYLIE, GOVERNOR OF IDAHO, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
IDAHO. 

PER CURIAM. 

THE JUDGMENT BELOW IS REVERSED.  BAKER V. CARR, 369 U.S. 186;
REYNOLDS V. SIMS, 377 U.S. 533.  THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THE VIEWS STATED IN OUR OPINIONS IN
REYNOLDS V. SIMS AND IN THE OTHER CASES RELATING TO STATE LEGISLATIVE
APPORTIONMENT DECIDED ALONG WITH REYNOLDS. 

MR. JUSTICE CLARK WOULD REVERSE ON THE BASIS OF HIS DISSENTING
OPINION IN LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S.
713, 741. 

MR. JUSTICE STEWART WOULD REMAND FOR FURTHER PROCEEDINGS CONSISTENT
WITH THE VIEWS STATED IN HIS DISSENTING OPINION IN LUCAS V. FORTY
FOURTH GENERAL ASSEMBLY OF COLORADO, 377 U.S. 713, 744. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 589. 
..END :
























PINNEY V. BUTTERWORTH 378 U.S. 564 


NO. 1078.  DECIDED JUNE 22, 1964.  - JUDGMENT AFFIRMED AND CASE REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH VIEWS STATED IN REYNOLDS V.
SIMS, 377 U.S. 533.  - REPORTED BELOW:  229 F. SUPP. 754. 


PINNEY ET AL. V. BUTTERWORTH ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT. 

PER CURIAM. 

THE JUDGMENT BELOW IS AFFIRMED.  REYNOLDS V. SIMS, 377 U.S. 533.  THE
CASE IS REMANDED FOR FUTHER PROCEEDINGS, WITH RESPECT TO RELIEF,
CONSISTENT WITH THE VIEWS STATED IN OUR OPINIONS IN REYNOLDS V. SIMS
AND IN THE OTHER CASES RELATING TO STATE LEGISLATIVE APPORTIONMENT
DECIDED ALONG WITH REYNOLDS. 

MR. JUSTICE CLARK WOULD AFFIRM THE JUDGMENT ON THE BASIS OF HIS
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 587. 

MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT INSOFAR AS IT HOLDS
THAT CONNECTICUT'S SYSTEM OF LEGISLATIVE APPORTIONMENT VIOLATES THE
EQUAL PROTECTION CLAUSE. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 589. 
..END :
























HILL V. DAVIS 378 U.S. 565 


NO. 1079.  DECIDED JUNE 22, 1964.  - JUDGMENT AFFIRMED AND CASE REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH VIEWS STATED IN REYNOLDS V.
SIMS, 377 U.S. 533.  - REPORTED BELOW:  225 F. SUPP. 689. 


HILL, AUDITOR OF CLARKE COUNTY, IOWA, ET AL. V. DAVIS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF IOWA. 

PER CURIAM. 

THE JUDGMENT BELOW IS AFFIRMED.  REYNOLDS V. SIMS, 377 U.S. 533.  THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS, WITH RESPECT TO RELIEF,
CONSISTENT WITH THE VIEWS STATED IN OUR OPINIONS IN REYNOLDS V. SIMS
AND IN THE OTHER CASES RELATING TO STATE LEGISLATIVE APPORTIONMENT
DECIDED ALONG WITH REYNOLDS, SHOULD THAT BECOME NECESSARY.  SINCE THIS
APPEAL PRESENTS NO QUESTION AS TO THE CORRECTNESS OF THE DISTRICT
COURT'S LATER DECISION UPHOLDING THE VALIDITY OF THE TEMPORARY
REAPPORTIONMENT PLAN ENACTED BY THE IOWA GENERAL ASSEMBLY IN FEBRUARY
1964, WE DO NOT CONSIDER OR PASS UPON THIS MATTER. 

MR. JUSTICE CLARK WOULD AFFIRM ON THE GROUNDS STATED IN HIS OPINION
IN REYNOLDS V. SIMS, 377 U.S. 533, 587. 

MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT INSOFAR AS IT HOLDS
THAT IOWA'S SYSTEM OF LEGISLATIVE APPORTIONMENT VIOLATES THE EQUAL
PROTECTION CLAUSE. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN REYNOLDS V. SIMS, 377 U.S. 533, 589. 
..END :




















LATHAN V. NEW YORK 378 U.S. 566 


NO. 298, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  12 N.Y.2D 822, 187
N.E.2D 359. 


LATHAN V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW
YORK. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF
APPEALS OF THE STATE OF NEW YORK IS VACATED AND THE CASE IS REMANDED
FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT
IN JACKSON V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :








LOPEZ V. TEXAS 378 U.S. 567 


NO. 396, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  366 S.W.2D 587. 


LOPEZ V. TEXAS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF TEXAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF
CRIMINAL APPEALS OF TEXAS IS VACATED AND THE CASE IS REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT IN
JACKSON V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :









OISTER V. PENNSYLVANIA 378 U.S. 568 


NO. 682, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  201 PA. SUPER.  251,
191 A.2D 851. 


OISTER V. PENNSYLVANIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR COURT OF
PENNSYLVANIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPERIOR
COURT OF PENNSYLVANIA IS VACATED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT IN JACKSON
V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :








MUSCHETTE V. UNITED STATES 378 U.S. 569 


NO. 729, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  116 U.S. APP. D.C. 239,
322 F.2D 989. 


MUSCHETTE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS VACATED
AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THE
OPINION OF THIS COURT IN JACKSON V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :








DEL HOYO V. NEW YORK 378 U.S. 570 


NO. 893, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


DEL HOYO V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DIVISION, SUPREME
COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE APPELLATE
DIVISION OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT,
IS VACATED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THE OPINION OF THIS COURT IN JACKSON V. DENNO, ANTE,
P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :








PEA V. UNITED STATES 378 U.S. 571 


NO. 930, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  116 U.S. APP. D.C. 410,
324 F.2D 442. 


PEA V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS VACATED AND
THE CASE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THE
OPINION OF THIS COURT IN JACKSON V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :








HARRIS V. TEXAS 378 U.S. 572 


NO. 963, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  370 S.W.2D 886. 


HARRIS V. TEXAS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF TEXAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF
CRIMINAL APPEALS OF TEXAS IS VACATED AND THE CASE IS REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT IN
JACKSON V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :









CATANZARO V. NEW YORK 378 U.S. 573 


NO. 994, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  13 N.Y.2D 842, 192
N.E.2D 232. 


CATANZARO V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW
YORK. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF
APPEALS OF NEW YORK IS VACATED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT IN JACKSON
V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :








OWEN V. ARIZONA 378 U.S. 574 


NO. 1078, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENTS
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  94 ARIZ. 404, 385 P.2D
700; 94 ARIZ. 413, 385 P.2D 706. 


OWEN ET AL. V. ARIZONA. 

ON PETITIONER FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
ARIZONA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENTS OF THE SUPREME
COURT OF ARIZONA ARE VACATED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT IN JACKSON
V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :








MCNERLIN V. DENNO 378 U.S. 575 


NO. 1117, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED AND CASE REMANDED.  - REPORTED BELOW:  324 F.2D 46. 


MCNERLIN V. DENNO, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IS VACATED AND THE CASE
IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THE OPINION OF
THIS COURT IN JACKSON V. DENNO, ANTE, P. 368. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS STATED IN THEIR DISSENTING
OPINIONS IN JACKSON V. DENNO, SUPRA.
..END :









TRALINS V. GERSTEIN 378 U.S. 576 


NO. 246.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW:  151 SO. 2D 19. 


TRALINS V. GERSTEIN, STATE ATTORNEY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
FLORIDA, THIRD DISTRICT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, AND THE JUDGMENT IS
REVERSED.  MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS WOULD REVERSE FOR
THE REASONS STATED IN THE OPINION OF MR. JUSTICE BLACK IN JACOBELLIS V.
OHIO, ANTE, P. 196.  MR. JUSTICE BRENNAN AND MR. JUSTICE GOLDBERG WOULD
REVERSE FOR THE REASONS STATED IN THE OPINION OF MR. JUSTICE BRENNAN IN
JACOBELLIS, ANTE, P. 184.  MR. JUSTICE STEWART WOULD REVERSE FOR THE
REASONS STATED IN HIS OPINION IN JACOBELLIS, ANTE, P. 197.   THE CHIEF
JUSTICE, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, AND MR. JUSTICE WHITE
ARE OF THE OPINION THAT CERTIORARI SHOULD BE DENIED. 
..END :









GROVE PRESS V. GERSTEIN 378 U.S. 577 


NO. 718.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW:  156 SO. 2D 537. 


GROVE PRESS, INC., V. GERSTEIN, STATE ATTORNEY, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
FLORIDA, THIRD DISTRICT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, AND THE JUDGMENT IS
REVERSED.  MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS WOULD REVERSE FOR
THE REASONS STATED IN THE OPINION OF MR. JUSTICE BLACK IN JACOBELLIS V.
OHIO, ANTE, P. 196.  MR. JUSTICE BRENNAN AND MR. JUSTICE GOLDBERG WOULD
REVERSE FOR THE REASONS STATED IN THE OPINION OF MR. JUSTICE BRENNAN IN
JACOBELLIS, ANTE, P. 184.  MR. JUSTICE STEWART WOULD REVERSE FOR THE
REASONS STATED IN HIS OPINION IN JACOBELLIS, ANTE, P. 197.   THE CHIEF
JUSTICE, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, AND MR. JUSTICE WHITE
ARE OF THE OPINION THAT CERTIORARI SHOULD BE DENIED. 
..END :









FRIED V. NEW YORK 378 U.S. 578 


NO. 330.  DECIDED JUNE 22, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  18 APP. DIV. 2D 996, 238 N.Y.S.2D 742. 


FRIED V. NEW YORK. 

APPEAL FROM THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, FIRST
JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE STEWART ARE OF
THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED AND THE JUDGMENT
REVERSED. 
..END :











MAYER V. RUSK 378 U.S. 579 


NO. 746.  DECIDED JUNE 22, 1964.  - JUDGMENT VACATED AND CASE REMANDED. 
- REPORTED BELOW:  224 F. SUPP. 929. 


MAYER V. RUSK, SECRETARY OF STATE. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR CONSIDERATION IN LIGHT OF APTHEKER V. SECRETARY OF STATE,
ANTE, P. 500. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE WOULD
AFFIRM THE JUDGMENT. 
..END :












INLAND EMPIRE BUILDERS V. WASHINGTON 378 U.S. 580 


NO. 849.  DECIDED JUNE 22, 1964.* - APPEALS DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  62 WASH. 2D 619, 384
P.2D 337. 

*TOGETHER WITH NO. 850, HEBB & NARODICK CONSTRUCTION CO., INC., ET
AL. V. WASHINGTON ET AL., AND NO. 851, MURRAY ET AL. V. WASHINGTON ET
AL., BOTH ALSO ON APPEAL FROM THE SAME COURT. 


INLAND EMPIRE BUILDERS, INC., ET AL. V. WASHINGTON ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEALS ARE DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :












BOB JONES UNIVERSITY, INC. V. CITY OF GREENVILLE 378 U.S. 581 


NO. 1024.  DECIDED JUNE 22, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  243 S.C. 351, 133
S.E.2D 843. 


BOB JONES UNIVERSITY, INC., V. CITY OF GREENVILLE, SOUTH CAROLINA, ET
AL. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















TEXAS CO. V. SECRETARY OF THE TREASURY OF PUERTO RICO 378 U.S. 581 


NO. 1048.  DECIDED JUNE 22, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


TEXAS CO. (P.R.)  INC.  ET AL. V. SECRETARY OF THE TREASURY OF PUERTO
RICO. 

APPEAL FROM THE SUPREME COURT OF PUERTO RICO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















MCLEOD V. OHIO 378 U.S. 582 


NO. 14, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


MCLEOD V. OHIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED TO THE SUPREME COURT OF OHIO FOR CONSIDERATION IN LIGHT
OF MASSIAH V. UNITED STATES, 377 U.S. 201. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT
FOR THE REASONS ASSIGNED IN THE DISSENTING OPINION IN MASSIAH V. UNITED
STATES, SUPRA, AT 207. 
..END :











BLAIR V. OHIO 378 U.S. 582 


NO. 699, MISC.  DECIDED JUNE 22, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


BLAIR V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HUDSON COUNTY NEWS CO. V. SILLS 378 U.S. 583 


NO. 1037.  DECIDED JUNE 22, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  41 N.J. 220, 195 A.2D
626. 


HUDSON COUNTY NEWS CO., INC., V. SILLS, ATTORNEY GENERAL OF NEW JERSEY,
ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















SMITH V. CROUSE 378 U.S. 584 


NO. 915, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED AND
JUDGMENT REVERSED.  - REPORTED BELOW: 192 KAN. 171, 386 P.2D 295. 


SMITH V. CROUSE, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED.  DOUGLAS
V. CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE HARLAN, DISSENTING. 

IN MY OPINION THE QUESTION WHETHER DOUGLAS V. CALIFORNIA, 372 U.S.
353, SHOULD BE GIVEN RETROACTIVE APPLICATION IS DESERVING OF PLENARY
CONSIDERATION.  CF. MY DISSENTING OPINION IN LAVALLEE V. DUROCHER, 377
U.S. 998. 
..END :









RUARK V. COLORADO 378 U.S. 585 


NO. 1173, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


RUARK V. COLORADO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF COLORADO FOR CONSIDERATION IN
LIGHT OF DOUGLAS V. CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE HARLAN, DISSENTING. 

FOR THE REASONS STATED IN MY DISSENTING OPINION IN SMITH V. CROUSE,
ANTE, P. 584, I WOULD SET THIS CASE FOR ARGUMENT. 
..END :










PEOPLES V. UNITED STATES 378 U.S. 586 


NO. 934, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  324 F.2D 689. 


PEOPLES V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR CONSIDERATION IN LIGHT OF
FALLEN V. UNITED STATES, ANTE, P. 139. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE STEWART
DISSENT. 
..END :











FOX V. NORTH CAROLINA 378 U.S. 587 


NO. 5.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED.  - REPORTED BELOW:  254 N.C. 97, 118 S.E.2D 58. 


FOX ET AL. V. NORTH CAROLINA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT VACATED
AND THE CASE REMANDED TO THE SUPREME COURT OF NORTH CAROLINA FOR
CONSIDERATION IN LIGHT OF ROBINSON V. FLORIDA, ANTE, P. 153. 

MR. JUSTICE DOUGLAS WOULD REVERSE OUTRIGHT ON THE BASIS OF THE VIEWS
EXPRESSED IN HIS OPINION IN BELL V. MARYLAND, ANTE, P. 242. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE DISSENT. 

..END :









COPELAND V. SECRETARY OF STATE 378 U.S. 588 


NO. 1041, MISC.  DECIDED JUNE 22, 1964.  - JUDGMENT VACATED AND CASE
REMANDED.  - REPORTED BELOW:  226 F. SUPP. 20. 


COPELAND V. SECRETARY OF STATE. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR
CONSIDERATION IN LIGHT OF APTHEKER V. SECRETARY OF STATE, ANTE, P.
500. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE WOULD
AFFIRM THE JUDGMENT. 
..END :











ETCHIESON V. TEXAS 378 U.S. 589 


NO. 1050, MISC.  DECIDED JUNE 22, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  372 S.W.2D 690. 


ETCHIESON V. TEXAS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF TEXAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED TO THE COURT OF CRIMINAL APPEALS OF TEXAS FOR
CONSIDERATION IN LIGHT OF AGUILAR V. TEXAS, ANTE, P. 108. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK AND MR. JUSTICE STEWART DISSENT
FOR THE REASONS ASSIGNED IN THE DISSENTING OPINION IN AGUILAR V.
TEXAS. 
..END :










REYNOLDS, JUDGE V. SIMS 377 U.S. 533 


NO. 23.  ARGUED NOVEMBER 13, 1963.  - DECIDED JUNE 15, 1964.* - 208 F.
SUPP. 431, AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. 

*TOGETHER WITH NO. 27, VANN ET AL. V. BAGGETT, SECRETARY OF STATE OF
ALABAMA, ET AL., AND NO. 41, MCCONNELL ET AL. V. BAGGETT, SECRETARY OF
STATE OF ALABAMA, ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


CHARGING THAT MALAPPORTIONMENT OF THE ALABAMA LEGISLATURE DEPRIVED
THEM AND OTHERS SIMILARLY SITUATED OF RIGHTS UNDER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT AND THE ALABAMA CONSTITUTION, VOTERS
IN SEVERAL ALABAMA COUNTIES BROUGHT SUIT AGAINST VARIOUS OFFICIALS
HAVING STATE ELECTION DUTIES.  COMPLAINANTS SOUGHT A DECLARATION THAT
THE EXISTING STATE LEGISLATIVE APPORTIONMENT PROVISIONS WERE
UNCONSTITUTIONAL; AN INJUNCTION AGAINST FUTURE ELECTIONS PENDING
REAPPORTIONMENT IN ACCORDANCE WITH THE STATE CONSTITUTION; OR, ABSENT
SUCH REAPPORTIONMENT, A MANDATORY INJUNCTION REQUIRING HOLDING THE 1962
ELECTION FOR LEGISLATORS AT LARGE OVER THE ENTIRE STATE.  THE COMPLAINT
ALLEGED SERIOUS DISCRIMINATION AGAINST VOTERS IN COUNTIES WHOSE
POPULATIONS HAD GROWN PROPORTIONATELY FAR MORE THAN OTHERS SINCE THE
1900 CENSUS WHICH, DESPITE ALABAMA'S CONSTITUTIONAL REQUIREMENTS FOR
LEGISLATIVE REPRESENTATION BASED ON POPULATION AND FOR DECENNIAL
REAPPORTIONMENT, FORMED THE BASIS FOR THE EXISTING LEGISLATIVE
APPORTIONMENT.  PURSUANT TO THE 1901 CONSTITUTION THE LEGISLATURE
CONSISTED OF 106 REPRESENTATIVES AND 35 SENATORS FOR THE STATE'S 67
COUNTIES AND SENATORIAL DISTRICTS; EACH COUNTY WAS ENTITLED TO AT LEAST
ONE REPRESENTATIVE; EACH SENATE DISTRICT COULD HAVE ONLY ONE MEMBER;
AND NO COUNTY COULD BE DIVIDED BETWEEN TWO SENATE DISTRICTS.  A THREE
JUDGE FEDERAL DISTRICT COURT DECLINED ORDERING THE MAY 1962 PRIMARY
ELECTION TO BE HELD AT LARGE, STATING THAT IT SHOULD NOT ACT BEFORE THE
LEGISLATURE HAD FURTHER OPPORTUNITY TO TAKE CORRECTIVE MEASURES BEFORE
THE GENERAL ELECTION.  FINDING AFTER A HEARING THAT NEITHER OF TWO
APPORTIONMENT PLANS WHICH THE LEGISLATURE THEREAFTER ADOPTED, TO BECOME
EFFECTIVE IN 1966, WOULD CURE THE GROSS INEQUALITY AND INVIDIOUS
DISCRIMINATION OF THE EXISTING REPRESENTATION, WHICH ALL PARTIES
GENERALLY CONCEDED VIOLATED THE EQUAL PROTECTION CLAUSE, AND THAT THE
COMPLAINANTS' VOTES WERE UNCONSTITUTIONALLY DEBASED UNDER ALL OF THE
THREE PLANS AT ISSUE, THE DISTRICT COURT ORDERED TEMPORARY
REAPPORTIONMENT FOR THE 1962 GENERAL ELECTION BY COMBINING FEATURES OF
THE TWO PLANS ADOPTED BY THE LEGISLATURE, AND ENJOINED OFFICIALS FROM
HOLDING FUTURE ELECTIONS UNDER ANY OF THE INVALID PLANS.  THE OFFICIALS
APPEALED, CLAIMING THAT THE DISTRICT COURT ERRED IN HOLDING
UNCONSTITUTIONAL THE EXISTING AND PROPOSED REAPPORTIONMENT PLANS AND
THAT A FEDERAL COURT LACKS POWER AFFIRMATIVELY TO REAPPORTION A
LEGISLATURE; TWO GROUPS OF COMPLAINANTS ALSO APPEALED, ONE CLAIMING
ERROR IN THE DISTRICT COURT'S FAILURE TO REAPPORTION THE SENATE
ACCORDING TO POPULATION, THE OTHER CLAIMING ERROR IN ITS FAILURE TO
REAPPORTION BOTH HOUSES ON A POPULATION BASIS.  HELD: 

1.  THE RIGHT OF SUFFRAGE IS DENIED BY DEBASEMENT OR DILUTION OF A
CITIZEN'S VOTE IN A STATE OR FEDERAL ELECTION.  PP. 554-555. 

2.  UNDER THE EQUAL PROTECTION CLAUSE A CLAIM OF DEBASEMENT OF THE
RIGHT TO VOTE THROUGH MALAPPORTIONMENT PRESENTS A JUSTICIABLE
CONTROVERSY; AND THE EQUAL PROTECTION CLAUSE PROVIDES MANAGEABLE
STANDARDS FOR LOWER COURTS TO DETERMINE THE CONSTITUTIONALITY OF A
STATE LEGISLATIVE APPORTIONMENT SCHEME.  BAKER V. CARR, 369 U.S. 186,
FOLLOWED.  PP. 556-557. 

3.  THE EQUAL PROTECTION CLAUSE REQUIRES SUBSTANTIALLY EQUAL
LEGISLATIVE REPRESENTATION FOR ALL CITIZENS IN A STATE REGARDLESS OF
WHERE THEY RESIDE.  PP. 561-568. 

(A)  LEGISLATORS REPRESENT PEOPLE, NOT AREAS.  P. 562. 

(B)  WEIGHTING VOTES DIFFERENTLY ACCORDING TO WHERE CITIZENS HAPPEN
TO RESIDE IS DISCRIMINATORY.  PP. 563-568. 

4.  THE SEATS IN BOTH HOUSES OF A BICAMERAL LEGISLATURE MUST UNDER
THE EQUAL PROTECTION CLAUSE BE APPORTIONED SUBSTANTIALLY ON A
POPULATION BASIS.  PP. 568-576. 

5.  THE DISTRICT COURT CORRECTLY HELD THAT THE EXISTING ALABAMA
APPORTIONMENT SCHEME AND BOTH OF THE PROPOSED PLANS ARE
CONSTITUTIONALLY INVALID SINCE NEITHER LEGISLATIVE HOUSE IS OR WOULD
THEREUNDER BE APPORTIONED ON A POPULATION BASIS.  PP. 568-571. 

6.  THE SUPERFICIAL RESEMBLANCE BETWEEN ONE OF THE ALABAMA
APPORTIONMENT PLANS AND THE LEGISLATIVE REPRESENTATION SCHEME OF THE
FEDERAL CONGRESS AFFORDS NO PROPER BASIS FOR SUSTAINING THAT PLAN SINCE
THE HISTORICAL CIRCUMSTANCES WHICH GAVE RISE TO THE CONGRESSIONAL
SYSTEM OF REPRESENTATION, ARISING OUT OF COMPROMISE AMONG SOVEREIGN
STATES, ARE UNIQUE AND WITHOUT RELEVANCE TO THE ALLOCATION OF SEATS IN
STATE LEGISLATURES.  PP. 571-577. 

7.  THE FEDERAL CONSTITUTIONAL REQUIREMENT THAT BOTH HOUSES OF A
STATE LEGISLATURE MUST BE APPORTIONED ON A POPULATION BASIS MEANS THAT,
AS NEARLY AS PRACTICABLE, DISTRICTS BE OF EQUAL POPULATION, THOUGH
MECHANICAL EXACTNESS IS NOT REQUIRED.  SOMEWHAT MORE FLEXIBILITY MAY BE
CONSTITUTIONALLY PERMISSIBLE FOR STATE LEGISLATIVE APPORTIONMENT THAN
FOR CONGRESSIONAL DISTRICTING.   PP. 577-581. 

(A)  A STATE LEGISLATIVE APPORTIONMENT SCHEME MAY PROPERLY GIVE
REPRESENTATION TO VARIOUS POLITICAL SUBDIVISIONS AND PROVIDE FOR
COMPACT DISTRICTS OF CONTIGUOUS TERRITORY IF SUBSTANTIAL EQUALITY AMONG
DISTRICTS IS MAINTAINED.  PP. 578-579. 

(B)  SOME DEVIATIONS FROM A STRICT EQUAL-POPULATION PRINCIPLE ARE
CONSTITUTIONALLY PERMISSIBLE IN THE TWO HOUSES OF A BICAMERAL STATE
LEGISLATURE, WHERE INCIDENT TO THE EFFECTUATION OF A RATIONAL STATE
POLICY, SO LONG AS THE BASIC STANDARD OF EQUALITY OF POPULATION AMONG
DISTRICTS IS NOT SIGNIFICANTLY DEPARTED FROM.  P. 579. 

(C)  CONSIDERATIONS OF HISTORY, ECONOMIC OR OTHER GROUP INTERESTS, OR
AREA ALONE DO NOT JUSTIFY DEVIATIONS FROM THE EQUAL POPULATION
PRINCIPLE.  PP. 579-580. 

(D)  INSURING SOME VOICE TO POLITICAL SUBDIVISIONS IN AT LEAST ONE
LEGISLATIVE BODY MAY, WITHIN REASON, WARRANT SOME DEVIATIONS FROM
POPULATION-BASED REPRESENTATION IN STATE LEGISLATURES.  PP. 580-581. 

8.  IN ADMITTING STATES INTO THE UNION, CONGRESS DOES NOT PURPORT TO
PASS ON ALL CONSTITUTIONAL QUESTIONS CONCERNING THE CHARACTER OF STATE
GOVERNMENTAL ORGANIZATION, SUCH AS WHETHER A STATE LEGISLATURE'S
APPORTIONMENT DEPARTS FROM THE EQUAL-POPULATION PRINCIPLE; IN ANY CASE,
CONGRESSIONAL APPROVAL COULD NOT VALIDATE AN UNCONSTITUTIONAL STATE
LEGISLATURE APPORTIONMENT.  P. 582. 

9.  STATES CONSISTENTLY WITH THE EQUAL PROTECTION CLAUSE CAN PROPERLY
PROVIDE FOR PERIODIC REVISION OF REAPPORTIONMENT SCHEMES, THOUGH
REVISION LESS FREQUENT THAN DECENNIAL WOULD BE CONSTITUTIONALLY
SUSPECT.  PP. 583-584. 

10.  COURTS SHOULD ATTEMPT TO ACCOMMODATE THE RELIEF ORDERED TO THE
APPORTIONMENT PROVISIONS OF STATE CONSTITUTIONS AS FAR AS POSSIBLE,
PROVIDED THAT SUCH PROVISIONS HARMONIZE WITH THE EQUAL PROTECTION
CLAUSE.  P. 584. 

11.  A COURT IN AWARDING OR WITHHOLDING IMMEDIATE RELIEF SHOULD
CONSIDER THE PROXIMITY OF A FORTHCOMING ELECTION AND THE MECHANICS AND
COMPLEXITIES OF ELECTION LAWS, AND SHOULD RELY ON GENERAL EQUITABLE
PRINCIPLES.  P. 585. 

12.  THE DISTRICT COURT PROPERLY EXERCISED ITS JUDICIAL POWER IN THIS
CASE BY ORDERING REAPPORTIONMENT OF BOTH HOUSES OF THE ALABAMA
LEGISLATURE FOR PURPOSES OF 1962 ELECTIONS AS A TEMPORARY MEASURE BY
USING THE BEST PARTS OF THE TWO PROPOSED PLANS, EACH OF WHICH IT HAD
FOUND, AS A WHOLE, INVALID, AND IN RETAINING JURISDICTION WHILE
DEFERRING A HEARING ON THE ISSUANCE OF A FINAL INJUNCTION TO GIVE THE
REAPPORTIONED LEGISLATURE AN OPPORTUNITY TO ACT EFFECTIVELY.  PP. 586
587. 

REYNOLDS, JUDGE, ET AL. V. SIMS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF ALABAMA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

INVOLVED IN THESE CASES ARE AN APPEAL AND TWO CROSS-APPEALS FROM A
DECISION OF THE FEDERAL DISTRICT COURT FOR THE MIDDLE DISTRICT OF
ALABAMA HOLDING INVALID, UNDER THE EQUAL PROTECTION CLAUSE OF THE
FEDERAL CONSTITUTION, THE EXISTING AND TWO LEGISLATIVELY PROPOSED PLANS
FOR THE APPORTIONMENT OF SEATS IN THE TWO HOUSES OF THE ALABAMA
LEGISLATURE, AND ORDERING INTO EFFECT A TEMPORARY REAPPORTIONMENT PLAN
COMPRISED OF PARTS OF THE PROPOSED BUT JUDICIALLY DISAPPROVED
MEASURES.  (FN1)

                                 I. 

ON AUGUST 26, 1961, THE ORIGINAL PLAINTIFFS (APPELLEES IN NO. 23),
RESIDENTS, TAXPAYERS AND VOTERS OF JEFFERSON COUNTY, ALABAMA, FILED A
COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF ALABAMA, IN THEIR OWN BEHALF AND ON BEHALF OF ALL SIMILARLY SITUATED
ALABAMA VOTERS, CHALLENGING THE APPORTIONMENT OF THE ALABAMA
LEGISLATURE.  DEFENDANTS BELOW (APPELLANTS IN NO. 23), SUED IN THEIR
REPRESENTATIVE CAPACITIES, WERE VARIOUS STATE AND POLITICAL PARTY
OFFICIALS CHARGED WITH THE PERFORMANCE OF CERTAIN DUTIES IN CONNECTION
WITH STATE ELECTIONS.  (FN2)  THE COMPLAINT ALLEGED A DEPRIVATION OF
RIGHTS UNDER THE ALABAMA CONSTITUTION AND UNDER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, AND ASSERTED THAT THE DISTRICT
COURT HAD JURISDICTION UNDER PROVISIONS OF THE CIVIL RIGHTS ACT, 42
U.S.C. SECS. 1983, 1988, AS WELL AS UNDER 28 U.S.C. SEC. 1343(3). 

THE COMPLAINT STATED THAT THE ALABAMA LEGISLATURE WAS COMPOSED OF A
SENATE OF 35 MEMBERS AND A HOUSE OF REPRESENTATIVES OF 106 MEMBERS.  IT
SET OUT RELEVANT PORTIONS OF THE 1901 ALABAMA CONSTITUTION, WHICH
PRESCRIBE THE NUMBER OF MEMBERS OF THE TWO BODIES OF THE STATE
LEGISLATURE AND THE METHOD OF APPORTIONING THE SEATS AMONG THE STATE'S
67 COUNTIES, AND PROVIDE AS FOLLOWS: 

ART. IV, SEC. 50.  "THE LEGISLATURE SHALL CONSIST OF NOT MORE THAN
THIRTY-FIVE SENATORS, AND NOT MORE THAN ONE HUNDRED AND FIVE MEMBERS OF
THE HOUSE OF REPRESENTATIVES, TO BE APPORTIONED AMONG THE SEVERAL
DISTRICTS AND COUNTIES, AS PRESCRIBED IN THIS CONSTITUTION; PROVIDED
THAT IN ADDITION TO THE ABOVE NUMBER OF REPRESENTATIVES, EACH NEW
COUNTY HEREAFTER CREATED SHALL BE ENTITLED TO ONE REPRESENTATIVE." 

ART. IX, SEC. 197.  "THE WHOLE NUMBER OF SENATORS SHALL BE NOT LESS
THAN ONE-FOURTH OR MORE THAN ONE-THIRD OF THE WHOLE NUMBER OF
REPRESENTATIVES." 

ART. IX, SEC. 198.  "THE HOUSE OF REPRESENTATIVES SHALL CONSIST OF
NOT MORE THAN ONE HUNDRED AND FIVE MEMBERS, UNLESS NEW COUNTIES SHALL
BE CREATED, IN WHICH EVENT EACH NEW COUNTY SHALL BE ENTITLED TO ONE
REPRESENTATIVE.  THE MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL BE
APPORTIONED BY THE LEGISLATURE AMONG THE SEVERAL COUNTIES OF THE STATE,
ACCORDING TO THE NUMBER OF INHABITANTS IN THEM, RESPECTIVELY, AS
ASCERTAINED BY THE DECENNIAL CENSUS OF THE UNITED STATES, WHICH
APPORTIONMENT, WHEN MADE, SHALL NOT BE SUBJECT TO ALTERATION UNTIL THE
NEXT SESSION OF THE LEGISLATURE AFTER THE NEXT DECENNIAL CENSUS OF THE
UNITED STATES SHALL HAVE BEEN TAKEN." 

ART. IX, SEC. 199.  "IT SHALL BE THE DUTY OF THE LEGISLATURE AT ITS
FIRST SESSION AFTER THE TAKING OF THE DECENNIAL CENSUS OF THE UNITED
STATES IN THE YEAR NINETEEN HUNDRED AND TEN, AND AFTER EACH SUBSEQUENT
DECENNIAL CENSUS, TO FIX BY LAW THE NUMBER OF REPRESENTATIVES AND
APPORTION THEM AMONG THE SEVERAL COUNTIES OF THE STATE, ACCORDING TO
THE NUMBER OF INHABITANTS IN THEM, RESPECTIVELY; PROVIDED, THAT EACH
COUNTY SHALL BE ENTITLED TO AT LEAST ONE REPRESENTATIVE." 

ART. IX, SEC. 200.  "IT SHALL BE THE DUTY OF THE LEGISLATURE AT ITS
FIRST SESSION AFTER TAKING OF THE DECENNIAL CENSUS OF THE UNITED STATES
IN THE YEAR NINETEEN HUNDRED AND TEN, AND AFTER EACH SUBSEQUENT
DECENNIAL CENSUS, TO FIX BY LAW THE NUMBER OF SENATORS, AND TO DIVIDE
THE STATE INTO AS MANY SENATORIAL DISTRICTS AS THERE ARE SENATORS,
WHICH DISTRICTS SHALL BE AS NEARLY EQUAL TO EACH OTHER IN THE NUMBER OF
INHABITANTS AS MAY BE, AND EACH SHALL BE ENTITLED TO ONE SENATOR, AND
NO MORE; AND SUCH DISTRICTS, WHEN FORMED, SHALL NOT BE CHANGED UNTIL
THE NEXT APPORTIONING SESSION OF THE LEGISLATURE, AFTER THE NEXT
DECENNIAL CENSUS OF THE UNITED STATES SHALL HAVE BEEN TAKEN; PROVIDED,
THAT COUNTIES CREATED AFTER THE NEXT PRECEDING APPORTIONING SESSION OF
THE LEGISLATURE MAY BE ATTACHED TO SENATORIAL DISTRICTS.  NO COUNTY
SHALL BE DIVIDED BETWEEN TWO DISTRICTS, AND NO DISTRICT SHALL BE MADE
UP OF TWO OR MORE COUNTIES NOT CONTIGUOUS TO EACH OTHER." 

ART. XVIII, SEC. 284.  "  ...  REPRESENTATION IN THE LEGISLATURE SHALL
BE BASED UPON POPULATION, AND SUCH BASIS OF REPRESENTATION SHALL NOT BE
CHANGED BY CONSTITUTIONAL AMENDMENTS." 

THE MAXIMUM SIZE OF THE ALABAMA HOUSE WAS INCREASED FROM 105 TO 106
WITH THE CREATION OF A NEW COUNTY IN 1903, PURSUANT TO THE
CONSTITUTIONAL PROVISION WHICH STATES THAT, IN ADDITION TO THE
PRESCRIBED 105 HOUSE SEATS, EACH COUNTY THEREAFTER CREATED SHALL BE
ENTITLED TO ONE REPRESENTATIVE.  ARTICLE IX, SECS. 202 AND 203, OF THE
ALABAMA CONSTITUTION ESTABLISHED PRECISELY THE BOUNDARIES OF THE
STATE'S SENATORIAL AND REPRESENTATIVE DISTRICTS UNTIL THE ENACTMENT OF
A NEW REAPPORTIONMENT PLAN BY THE LEGISLATURE.  THESE 1901
CONSTITUTIONAL PROVISIONS, SPECIFICALLY DESCRIBING THE COMPOSITION OF
THE SENATORIAL DISTRICTS AND DETAILING THE NUMBER OF HOUSE SEATS
ALLOCATED TO EACH COUNTY, WERE PERIODICALLY ENACTED AS STATUTORY
MEASURES BY THE ALABAMA LEGISLATURE, AS MODIFIED ONLY BY THE CREATION
OF AN ADDITIONAL COUNTY IN 1903, AND PROVIDED THE PLAN OF LEGISLATIVE
APPORTIONMENT EXISTING AT THE TIME THIS LITIGATION WAS COMMENCED. 
(FN3) 

PLAINTIFFS BELOW ALLEGED THAT THE LAST APPORTIONMENT OF THE ALABAMA
LEGISLATURE WAS BASED ON THE 1900 FEDERAL CENSUS, DESPITE THE
REQUIREMENT OF THE STATE CONSTITUTION THAT THE LEGISLATURE BE
REAPPORTIONED DECENNIALLY.  THEY ASSERTED THAT, SINCE THE POPULATION
GROWTH IN THE STATE FROM 1900 TO 1960 HAD BEEN UNEVEN, JEFFERSON AND
OTHER COUNTIES WERE NOW VICTIMS OF SERIOUS DISCRIMINATION WITH RESPECT
TO THE ALLOCATION OF LEGISLATIVE REPRESENTATION.  AS A RESULT OF THE
FAILURE OF THE LEGISLATURE TO REAPPORTION ITSELF, PLAINTIFFS ASSERTED,
THEY WERE DENIED "EQUAL SUFFRAGE IN FREE AND EQUAL ELECTIONS  ...  AND
THE EQUAL PROTECTION OF THE LAWS" IN VIOLATION OF THE ALABAMA
CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION. 
THE COMPLAINT ASSERTED THAT PLAINTIFFS HAD NO OTHER ADEQUATE REMEDY,
AND THAT THEY HAD EXHAUSTED ALL FORMS OF RELIEF OTHER THAN THAT
AVAILABLE THROUGH THE FEDERAL COURTS.  THEY ALLEGED THAT THE ALABAMA
LEGISLATURE HAD ESTABLISHED A PATTERN OF PROLONGED INACTION FROM 1911
TO THE PRESENT WHICH "CLEARLY DEMONSTRATES THAT NO REAPPORTIONMENT  ...
SHALL BE EFFECTED"; THAT REPRESENTATION AT ANY FUTURE CONSTITUTIONAL
CONVENTION WOULD BE ESTABLISHED BY THE LEGISLATURE, MAKING IT UNLIKELY
THAT THE MEMBERSHIP OF ANY SUCH CONVENTION WOULD BE FAIRLY
REPRESENTATIVE; AND THAT, WHILE THE ALABAMA SUPREME COURT HAD FOUND
THAT THE LEGISLATURE HAD NOT COMPLIED WITH THE STATE CONSTITUTION IN
FAILING TO REAPPORTION ACCORDING TO POPULATION DECENNIALLY, (FN4) THAT
COURT HAD NEVERTHELESS INDICATED THAT IT WOULD NOT INTERFERE WITH
MATTERS OF LEGISLATIVE REAPPORTIONMENT.  (FN5) 

PLAINTIFFS REQUESTED THAT A THREE-JUDGE DISTRICT COURT BE CONVENED. 
(FN6)  WITH RESPECT TO RELIEF, THEY SOUGHT A DECLARATION THAT THE
EXISTING CONSTITUTIONAL AND STATUTORY PROVISIONS, ESTABLISHING THE
PRESENT APPORTIONMENT OF SEATS IN THE ALABAMA LEGISLATURE, WERE
UNCONSTITUTIONAL UNDER THE ALABAMA AND FEDERAL CONSTITUTIONS, AND AN
INJUNCTION AGAINST THE HOLDING OF FUTURE ELECTIONS FOR LEGISLATORS
UNTIL THE LEGISLATURE REAPPORTIONED ITSELF IN ACCORDANCE WITH THE STATE
CONSTITUTION.  THEY FURTHER REQUESTED THE ISSUANCE OF A MANDATORY
INJUNCTION, EFFECTIVE UNTIL SUCH TIME AS THE LEGISLATURE PROPERLY
REAPPORTIONED, REQUIRING THE CONDUCTING OF THE 1962 ELECTION FOR
LEGISLATORS AT LARGE OVER THE ENTIRE STATE, AND ANY OTHER RELIEF WHICH
"MAY SEEM JUST, EQUITABLE AND PROPER." 

A THREE-JUDGE DISTRICT COURT WAS CONVENED, AND THREE GROUPS OF
VOTERS, TAXPAYERS AND RESIDENTS OF JEFFERSON, MOBILE, AND ETOWAH
COUNTIES WERE PERMITTED TO INTERVENE IN THE ACTION AS INTERVENOR
PLAINTIFFS.  TWO OF THE GROUPS ARE CROSS-APPELLANTS IN NOS. 27 AND 41. 
WITH MINOR EXCEPTIONS, ALL OF THE INTERVENORS ADOPTED THE ALLEGATIONS
OF AND SOUGHT THE SAME RELIEF AS THE ORIGINAL PLAINTIFFS. 

ON MARCH 29, 1962, JUST THREE DAYS AFTER THIS COURT HAD DECIDED BAKER
V. CARR, 369 U.S. 186, PLAINTIFFS MOVED FOR A PRELIMINARY INJUNCTION
REQUIRING DEFENDANTS TO CONDUCT AT LARGE THE MAY 1962 DEMOCRATIC
PRIMARY ELECTION AND THE NOVEMBER 1962 GENERAL ELECTION FOR MEMBERS OF
THE ALABAMA LEGISLATURE.  THE DISTRICT COURT SET THE MOTION FOR HEARING
IN AN ORDER STATING ITS TENTATIVE VIEWS THAT AN INJUNCTION WAS NOT
REQUIRED BEFORE THE MAY 1962 PRIMARY ELECTION TO PROTECT PLAINTIFFS'
CONSTITUTIONAL RIGHTS, AND THAT THE COURT SHOULD TAKE NO ACTION WHICH
WAS NOT "ABSOLUTELY ESSENTIAL" FOR THE PROTECTION OF THE ASSERTED
CONSTITUTIONAL RIGHTS BEFORE THE ALABAMA LEGISLATURE HAD HAD A "FURTHER
REASONABLE BUT PROMPT OPPORTUNITY TO COMPLY WITH ITS DUTY" UNDER THE
ALABAMA CONSTITUTION. 

ON APRIL 14, 1962, THE DISTRICT COURT, AFTER REITERATING THE VIEWS
EXPRESSED IN ITS EARLIER ORDER, RESET THE CASE FOR HEARING ON JULY 16,
NOTING THAT THE IMPORTANCE OF THE CASE, TOGETHER WITH THE NECESSITY FOR
EFFECTIVE ACTION WITHIN A LIMITED PERIOD OF TIME, REQUIRED AN EARLY
ANNOUNCEMENT OF ITS VIEWS.  205 F. SUPP. 245.  RELYING ON OUR DECISION
IN BAKER V. CARR, THE COURT FOUND JURISDICTION, JUSTICIABILITY AND
STANDING.  IT STATED THAT IT WAS TAKING JUDICIAL NOTICE OF THE FACTS
THAT THERE HAD BEEN POPULATION CHANGES IN ALABAMA'S COUNTIES SINCE
1901, THAT THE PRESENT REPRESENTATION IN THE STATE LEGISLATURE WAS NOT
ON A POPULATION BASIS, AND THAT THE LEGISLATURE HAD NEVER REAPPORTIONED
ITS MEMBERSHIP AS REQUIRED BY THE ALABAMA CONSTITUTION.  (FN7)
CONTINUING, THE COURT STATED THAT IF THE LEGISLATURE COMPLIED WITH THE
ALABAMA CONSTITUTIONAL PROVISION REQUIRING LEGISLATIVE REPRESENTATION
TO BE BASED ON POPULATION THERE COULD BE NO OBJECTION ON FEDERAL
CONSTITUTIONAL GROUNDS TO SUCH AN APPORTIONMENT.  THE COURT FURTHER
INDICATED THAT, IF THE LEGISLATURE FAILED TO ACT, OR IF ITS ACTIONS DID
NOT MEET CONSTITUTIONAL STANDARDS, IT WOULD BE UNDER A "CLEAR DUTY" TO
TAKE SOME ACTION ON THE MATTER PRIOR TO THE NOVEMBER 1962 GENERAL
ELECTION.  THE DISTRICT COURT STATED THAT ITS "PRESENT THINKING" WAS TO
FOLLOW AN APPROACH SUGGESTED BY MR. JUSTICE CLARK IN HIS CONCURRING
OPINION IN BAKER V. CARR (FN8) - AWARDING SEATS RELEASED BY THE
CONSOLIDATION OR REVAMPING OF EXISTING DISTRICTS TO COUNTIES SUFFERING
"THE MOST EGREGIOUS DISCRIMINATION," THEREBY RELEASING THE STRANGLE
HOLD ON THE LEGISLATURE SUFFICIENTLY SO AS TO PERMIT THE NEWLY ELECTED
BODY TO ENACT A CONSTITUTIONALLY VALID AND PERMANENT REAPPORTIONMENT
PLAN, AND ALLOWING EVENTUAL DISMISSAL OF THE CASE.  SUBSEQUENTLY,
PLAINTIFFS WERE PERMITTED TO AMEND THEIR COMPLAINT BY ADDING A FURTHER
PRAYER FOR RELIEF, WHICH ASKED THE DISTRICT COURT TO REAPPORTION THE
ALABAMA LEGISLATURE PROVISIONALLY SO THAT THE RURAL STRANGLE HOLD WOULD
BE RELAXED ENOUGH TO PERMIT IT TO REAPPORTION ITSELF. 

ON JULY 12, 1962, AN EXTRAORDINARY SESSION OF THE ALABAMA LEGISLATURE
ADOPTED TWO REAPPORTIONMENT PLANS TO TAKE EFFECT FOR THE 1966
ELECTIONS.  ONE WAS A PROPOSED CONSTITUTIONAL AMENDMENT, REFERRED TO AS
THE "67-SENATOR AMENDMENT."  (FN9)  IT PROVIDED FOR A HOUSE OF
REPRESENTATIVES CONSISTING OF 106 MEMBERS, APPORTIONED BY GIVING ONE
SEAT TO EACH OF ALABAMA'S 67 COUNTIES AND DISTRIBUTING THE OTHERS
ACCORDING TO POPULATION BY THE "EQUAL PROPORTIONS" METHOD.  (FN10)
USING THIS FORMULA, THE CONSTITUTIONAL AMENDMENT SPECIFIED THE NUMBER
OF REPRESENTATIVES ALLOTTED TO EACH COUNTY UNTIL A NEW APPORTIONMENT
COULD BE MADE ON THE BASIS OF THE 1970 CENSUS.  THE SENATE WAS TO BE
COMPOSED OF 67 MEMBERS, ONE FROM EACH COUNTY.  THE LEGISLATION PROVIDED
THAT THE PROPOSED AMENDMENT SHOULD BE SUBMITTED TO THE VOTERS FOR
RATIFICATION AT THE NOVEMBER 1962 GENERAL ELECTION. 

THE OTHER REAPPORTIONMENT PLAN WAS EMBODIED IN A STATUTORY MEASURE
ADOPTED BY THE LEGISLATURE AND SIGNED INTO LAW BY THE ALABAMA GOVERNOR,
AND WAS REFERRED TO AS THE "CRAWFORD-WEBB ACT."  (FN11)  IT WAS ENACTED
AS STANDBY LEGISLATION TO TAKE EFFECT IN 1966 IF THE PROPOSED
CONSTITUTIONAL AMENDMENT SHOULD FAIL OF PASSAGE BY A MAJORITY OF THE
STATE'S VOTERS, OR SHOULD THE FEDERAL COURTS REFUSE TO ACCEPT THE
PROPOSED AMENDMENT (THOUGH NOT REJECTED BY THE VOTERS) AS EFFECTIVE
ACTION IN COMPLIANCE WITH THE REQUIREMENTS OF THE FOURTEENTH
AMENDMENT.  THE ACT PROVIDED FOR A SENATE CONSISTING OF 35 MEMBERS,
REPRESENTING 35 SENATORIAL DISTRICTS ESTABLISHED ALONG COUNTY LINES,
AND ALTERED ONLY A FEW OF THE FORMER DISTRICTS.  IN APPORTIONING THE
106 SEATS IN THE ALABAMA HOUSE OF REPRESENTATIVES, THE STATUTORY
MEASURE GAVE EACH COUNTY ONE SEAT, AND APPORTIONED THE REMAINING 39 ON
A ROUGH POPULATION BASIS, UNDER A FORMULA REQUIRING INCREASINGLY MORE
POPULATION FOR A COUNTY TO BE ACCORDED ADDITIONAL SEATS.  THE CRAWFORD
WEBB ACT ALSO PROVIDED THAT IT WOULD BE EFFECTIVE "UNTIL THE
LEGISLATURE IS REAPPORTIONED ACCORIDNG TO LAW," BUT PROVIDED NO
STANDARDS FOR SUCH A REAPPORTIONMENT.  FUTURE APPORTIONMENTS WOULD
PRESUMABLY BE BASED ON THE EXISTING PROVISIONS OF THE ALABAMA
CONSTITUTION WHICH THE STATUTE, UNLIKE THE PROPOSED CONSTITUTIONAL
AMENDMENT, WOULD NOT EFFECT.    THE EVIDENCE ADDUCED AT TRIAL BEFORE
THE THREE-JUDGE PANEL CONSISTED PRIMARILY OF FIGURES SHOWING THE
POPULATION OF EACH ALABAMA COUNTY AND SENATORIAL DISTRICT ACCORDING TO
THE 1960 CENSUS, AND THE NUMBER OF REPRESENTATIVES ALLOCATED TO EACH
COUNTY UNDER EACH OF THE THREE PLANS AT ISSUE IN THE LITIGATION - THE
EXISTING APPORTIONMENT (UNDER THE 1901 CONSTITUTIONAL PROVISIONS AND
THE CURRENT STATUTORY MEASURES SUBSTANTIALLY REENACTING THE SAME PLAN),
THE PROPOSED 67-SENATOR CONSTITUTIONAL AMENDMENT, AND THE CRAWFORD-WEBB
ACT.  UNDER ALL THREE PLANS, EACH SENATORIAL DISTRICT WOULD BE
REPRESENTED BY ONLY ONE SENATOR. 

ON JULY 21, 1962, THE DISTRICT COURT HELD THAT THE INEQUALITY OF THE
EXISTING REPRESENTATION IN THE ALABAMA LEGISLATURE VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, A FINDING WHICH THE
COURT NOTED HAD BEEN "GENERALLY CONCEDED" BY THE PARTIES TO THE
LITIGATION, SINCE POPULATION GROWTH AND SHIFTS HAD CONVERTED THE 1901
SCHEME, AS PERPETUATED SOME 60 YEARS LATER, INTO AN INVIDIOUSLY
DISCRIMINATORY PLAN COMPLETELY LACKING IN RATIONALITY.  208 F. SUPP.
431.  UNDER THE EXISTING PROVISIONS, APPLYING 1960 CENSUS FIGURES, ONLY
25.1% OF THE STATE'S TOTAL POPULATION RESIDED IN DISTRICTS REPRESENTED
BY A MAJORITY OF THE MEMBERS OF THE SENATE, AND ONLY 25.7% LIVED IN
COUNTIES WHICH COULD ELECT A MAJORITY OF THE MEMBERS OF THE HOUSE OF
REPRESENTATIVES.  POPULATION-VARIANCE RATIOS OF UP TO ABOUT 41-TO-1
EXISTED IN THE SENATE, AND UP TO ABOUT 16-TO-1 IN THE HOUSE.  BULLOCK
COUNTY, WITH A POPULATION OF ONLY 13,462, AND HENRY COUNTY, WITH A
POPULATION OF ONLY 15,286, EACH WERE ALLOCATED TWO SEATS IN THE ALABAMA
HOUSE, WHEREAS MOBILE COUNTY, WITH A POPULATION OF 314,301, WAS GIVEN
ONLY THREE SEATS, AND JEFFERSON COUNTY, WITH 634,864 PEOPLE, HAD ONLY
SEVEN REPRESENTATIVES.  (FN12)  WITH RESPECT TO SENATORIAL
APPORTIONMENT, SINCE THE PERTINENT ALABAMA CONSTITUTIONAL PROVISIONS
HAD BEEN CONSISTENTLY CONSTRUED AS PROHIBITING THE GIVING OF MORE THAN
ONE SENATE SEAT TO ANY ONE COUNTY, (FN13) JEFFERSON COUNTY, WITH OVER
600,000 PEOPLE, WAS GIVEN ONLY ONE SENATOR, AS WAS LOWNDES COUNTY, WITH
A 1960 POPULATION OF ONLY 15,417, AND WILCOX COUNTY, WITH ONLY 18,739
PEOPLE.  (FN14) 

THE COURT THEN CONSIDERED BOTH THE PROPOSED CONSTITUTIONAL AMENDMENT
AND THE CRAWFORD-WEBB ACT TO ASCERTAIN WHETHER THE LEGISLATURE HAD
TAKEN EFFECTIVE ACTION TO REMEDY THE UNCONSTITUTIONAL ASPECTS OF THE
EXISTING APPORTIONMENT.  IN INITIALLY SUMMARIZING THE RESULT WHICH IT
HAD REACHED, THE COURT STATED: 

"THIS COURT HAS REACHED THE CONCLUSION THAT NEITHER THE '67-SENATOR
AMENDMENT,' NOR THE 'CRAWFORD-WEBB ACT' MEETS THE NECESSARY
CONSTITUTIONAL REQUIREMENTS.  WE FIND THAT EACH OF THE LEGISLATIVE
ACTS, WHEN CONSIDERED AS A WHOLE, IS SO OBVIOUSLY DISCRIMINATORY,
ARBITRARY AND IRRATIONAL THAT IT BECOMES UNNECESSARY TO PURSUE A
DETAILED DEVELOPMENT OF EACH OF THE RELEVANT FACTORS OF THE FEDERAL
CONSTITUTIONAL TEST."  (FN15) 

THE COURT STATED THAT THE APPORTIONMENT OF ONE SENATOR TO EACH
COUNTY, UNDER THE PROPOSED CONSTITUTIONAL AMENDMENT, WOULD "MAKE THE
DISCRIMINATION IN THE SENATE EVEN MORE INVIDIOUS THAN AT PRESENT." 
UNDER THE 67-SENATOR AMENDMENT, AS POINTED OUT BY THE COURT BELOW, "THE
PRESENT CONTROL OF THE SENATE BY MEMBERS REPRESENTING 25.1% OF THE
PEOPLE OF ALABAMA WOULD BE REDUCED TO CONTROL BY MEMBERS REPRESENTING
19.4% OF THE PEOPLE OF THE STATE," THE 34 SMALLEST COUNTIES, WITH A
TOTAL POPULATION OF LESS THAN THAT OF JEFFERSON COUNTY, WOULD HAVE A
MAJORITY OF THE SENATORIAL SEATS, AND SENATORS ELECTED BY ONLY ABOUT
14% OF THE STATE'S POPULATION COULD PREVENT THE SUBMISSION TO THE
ELECTORATE OF ANY FUTURE PROPOSALS TO AMEND THE STATE CONSTITUTION
(SINCE A VOTE OF TWO-FIFTHS OF THE MEMBERS OF ONE HOUSE CAN DEFEAT A
PROPOSAL TO AMEND THE ALABAMA CONSTITUTION).  NOTING THAT THE "ONLY
CONCEIVABLE RATIONALIZATION" OF THE SENATORIAL APPORTIONMENT SCHEME IS
THAT IT WAS BASED ON EQUAL REPRESENTATION OF POLITICAL SUBDIVISIONS
WITHIN THE STATE AND IS THUS ANALOGOUS TO THE FEDERAL SENATE, THE
DISTRICT COURT REJECTED THE ANALOGY ON THE GROUND THAT ALABAMA COUNTIES
ARE MERELY INVOLUNTARY POLITICAL UNITS OF THE STATE CREATED BY STATUTE
TO AID IN THE ADMINISTRATION OF STATE GOVERNMENT.  IN FINDING THE SO
CALLED FEDERAL ANALOGY IRRELEVANT, THE DISTRICT COURT STATED: 

"THE ANALOGY CANNOT SURVIVE THE MOST SUPERFICIAL EXAMINATION INTO THE
HISTORY OF THE REQUIREMENT OF THE FEDERAL CONSTITUTION AND THE
DIAMETRICALLY OPPOSING HISTORY OF THE REQUIREMENT OF THE ALABAMA
CONSTITUTION THAT REPRESENTATION SHALL BE BASED ON POPULATION.  NOR CAN
IT SURVIVE A COMPARISON OF THE DIFFERENT POLITICAL NATURES OF STATES
AND COUNTIES."  (FN16) 

THE COURT ALSO NOTED THAT THE SENATORIAL APPORTIONMENT PROPOSAL "MAY
NOT HAVE COMPLIED WITH THE STATE CONSTITUTION," SINCE NOT ONLY IS IT
EXPLICITLY PROVIDED THAT THE POPULATION BASIS OF LEGISLATIVE
REPRESENTATION "SHALL NOT BE CHANGED BY CONSTITUTIONAL AMENDMENTS,"
(FN17) BUT THE ALABAMA SUPREME COURT HAD PREVIOUSLY INDICATED THAT THAT
REQUIREMENT COULD PROBABLY BE ALTERED ONLY BY CONSTITUTIONAL
CONVENTION.  (FN18)  THE COURT CONCLUDED, HOWEVER, THAT THE
APPORTIONMENT OF SEATS IN THE ALABAMA HOUSE, UNDER THE PROPOSED
CONSTITUTIONAL AMENDMENT, WAS "BASED UPON REASON, WITH A RATIONAL
REGARD FOR KNOWN AND ACCEPTED STANDARDS OF APPORTIONMENT."  (FN19)
UNDER THE PROPOSED APPORTIONMENT OF REPRESENTATIVES, EACH OF THE 67
COUNTIES WAS GIVEN ONE SEAT AND THE REMAINING 39 WERE ALLOCATED ON A
POPULATION BASIS.  ABOUT 43% OF THE STATE'S TOTAL POPULATION WOULD LIVE
IN COUNTIES WHICH COULD ELECT A MAJORITY IN THAT BODY.  AND, UNDER THE
PROVISIONS OF THE 67-SENATOR AMENDMENT, WHILE THE MAXIMUM POPULATION
VARIANCE RATIO WAS INCREASED TO ABOUT 59-TO-1 IN THE SENATE, IT WAS
SIGNIFICANTLY REDUCED TO ABOUT 4.7-TO-1 IN THE HOUSE OF
REPRESENTATIVES.  JEFFERSON COUNTY WAS GIVEN 17 HOUSE SEATS, AN
ADDITION OF 10, AND MOBILE COUNTY WAS ALLOTTED EIGHT, AN INCREASE OF
FIVE.  THE INCREASED REPRESENTATION OF THE URBAN COUNTIES WAS ACHIEVED
PRIMARILY BY LIMITING THE STATE'S 55 LEAST POPULOUS COUNTIES TO ONE
HOUSE SEAT EACH, AND THE NET EFFECT WAS TO TAKE 19 SEATS AWAY FROM
RURAL COUNTIES AND ALLOCATE THEM TO THE MORE POPULOUS COUNTIES.  EVEN
SO, SERIOUS DISPARITIES FROM A POPULATION-BASED STANDARD REMAINED. 
MONTGOMERY COUNTY, WITH 169,210 PEOPLE, WAS GIVEN ONLY FOUR SEATS,
WHILE COOSA COUNTY, WITH A POPULATION OF ONLY 10,726, AND CLEBURNE
COUNTY, WITH ONLY 10,911, WERE EACH ALLOCATED ONE REPRESENTATIVE. 

TURNING NEXT TO THE PROVISIONS OF THE CRAWFORD-WEBB ACT, THE DISTRICT
COURT FOUND THAT ITS APPORTIONMENT OF THE 106 SEATS IN THE ALABAMA
HOUSE OF REPRESENTATIVES, BY ALLOCATING ONE SEAT TO EACH COUNTY AND
DISTRIBUTING THE REMAINING 39 TO THE MORE POPULOUS COUNTIES IN
DIMINISHING RATIO TO THEIR POPULATIONS, WAS "TOTALLY UNACCEPTABLE." 
(FN20)  UNDER THIS PLAN, ABOUT 37% OF THE STATE'S TOTAL POPULATION
WOULD RESIDE IN COUNTIES ELECTING A MAJORITY OF THE MEMBERS OF THE
ALABAMA HOUSE, WITH A MAXIMUM POPULATION-VARIANCE RATIO OF ABOUT 5-TO
1.  EACH REPRESENTATIVE FROM JEFFERSON AND MOBILE COUNTIES WOULD
REPRESENT OVER 52,000 PERSONS WHILE REPRESENTATIVES FROM EIGHT RURAL
COUNTIES WOULD EACH REPRESENT LESS THAN 20,000 PEOPLE.  THE COURT
REGARDED THE SENATORIAL APPORTIONMENT PROVIDED IN THE CRAWFORD-WEBB ACT
AS "A STEP IN THE RIGHT DIRECTION, BUT AN EXTREMELY SHORT STEP," AND
BUT A "SLIGHT IMPROVEMENT OVER THE PRESENT SYSTEM OF REPRESENTATION." 
(FN21)  THE NET EFFECT OF COMBINING A FEW OF THE LESS POPULOUS COUNTIES
INTO TWO-COUNTY DISTRICTS AND SPLITTING UP SEVERAL OF THE LARGER
DISTRICTS INTO SMALLER ONES WOULD BE MERELY TO INCREASE THE MINORITY
WHICH WOULD BE REPRESENTED BY A MAJORITY OF THE MEMBERS OF THE SENATE
FROM 25.1% TO ONLY 27.6% OF THE STATE'S POPULATION.  (FN22)  THE COURT
POINTED OUT THAT, UNDER THE CRAWFORD-WEBB ACT, THE VOTE OF A PERSON IN
THE SENATORIAL DISTRICT CONSISTING OF BIBB AND PERRY COUNTIES WOULD BE
WORTH 20 TIMES THAT OF A CITIZEN IN JEFFERSON COUNTY, AND THAT THE VOTE
OF A CITIZEN IN THE SIX SMALLEST DISTRICTS WOULD BE WORTH 15 OR MORE
TIMES THAT OF A JEFFERSON COUNTY VOTER.  THE COURT CONCLUDED THAT THE
CRAWFORD-WEBB ACT WAS "TOTALLY UNACCEPTABLE" AS A "PIECE OF PERMANENT
LEGISLATION" WHICH, UNDER THE ALABAMA CONSTITUTION, WOULD HAVE REMAINED
IN EFFECT WITHOUT ALTERATION AT LEAST UNTIL AFTER THE NEXT DECENNIAL
CENSUS. 

UNDER THE DETAILED REQUIREMENTS OF THE VARIOUS CONSTITUTIONAL
PROVISIONS RELATING TO THE APPORTIONMENT OF SEATS IN THE ALABAMA SENATE
AND HOUSE OF REPRESENTATIVES, THE COURT FOUND, THE MEMBERSHIP OF
NEITHER HOUSE CAN BE APPORTIONED SOLELY ON A POPULATION BASIS, DESPITE
THE PROVISION IN ART. XVIII, SEC. 284, WHICH STATES THAT
"REPRESENTATION IN THE LEGISLATURE SHALL BE BASED UPON POPULATION."  IN
DEALING WITH THE CONFLICTING AND SOMEWHAT PARADOXICAL REQUIREMENTS
(UNDER WHICH THE NUMBER OF SEATS IN THE HOUSE IS LIMITED TO 106 BUT
EACH OF THE 67 COUNTIES IS REQUIRED TO BE GIVEN AT LEAST ONE
REPRESENTATIVE, AND THE SIZE OF THE SENATE IS LIMITED TO 35 BUT IT IS
REQUIRED TO HAVE AT LEAST ONE-FOURTH OF THE MEMBERS OF THE HOUSE,
ALTHOUGH NO COUNTY CAN BE GIVEN MORE THAN ONE SENATOR), THE DISTRICT
COURT STATED ITS VIEW THAT "THE CONTROLLING OR DOMINANT PROVISION OF
THE ALABAMA CONSTITUTION ON THE SUBJECT OF REPRESENTATION IN THE
LEGISLATURE" IS THE PREVIOUSLY REFERRED TO LANGUAGE OF SEC. 284.  THE
COURT'S STATED THAT THE DETAILED REQUIREMENTS OF ART. IX, SECS. 197
200: 

"MAKE IT OBVIOUS THAT IN NEITHER THE HOUSE NOR THE SENATE CAN
REPRESENTATION BE BASED STRICTLY AND ENTIRELY UPON POPULATION  ...  .
THE RESULT MAY WELL BE THAT REPRESENTATION ACCORDING TO POPULATION TO
SOME EXTENT MUST BE REQUIRED IN BOTH HOUSES IF INVIDIOUS DISCRIMINATION
IN THE LEGISLATIVE SYSTEMS AS A WHOLE IS TO BE AVOIDED.  INDEED,  ...
IT IS THE POLICY AND THEME OF THE ALABAMA CONSTITUTION TO REQUIRE
REPRESENTATION ACCORDING TO POPULATION IN BOTH HOUSES AS NEARLY AS MAY
BE, WHILE STILL COMPLYING WITH MORE DETAILED PROVISIONS."  (FN23) 

THE DISTRICT COURT THEN DIRECTED ITS CONCERN TO THE PROVIDING OF AN
EFFECTIVE REMEDY.  IT INDICATED THAT IT WAS ADOPTING AND ORDERING INTO
EFFECT FOR THE NOVEMBER 1962 ELECTION A PROVISIONAL AND TEMPORARY
REAPPORTIONMENT PLAN COMPOSED OF THE PROVISIONS RELATING TO THE HOUSE
OF REPRESENTATIVES CONTAINED IN THE 67-SENATOR AMENDMENT AND THE
PROVISIONS OF THE CRAWFORD-WEBB ACT RELATING TO THE SENATE.  THE COURT
NOTED, HOWEVER, THAT "THE PROPOSED REAPPORTIONMENT OF THE SENATE IN THE
'CRAWFORD-WEBB ACT,' UNACCEPTABLE AS A PIECE OF PERMANENT LEGISLATION,
MAY NOT EVEN BREAK THE STRANGLE HOLD."  STATING THAT IT WAS RETAINING
JURISDICTION AND DEFERRING ANY HEARING ON PLAINTIFFS' MOTION FOR A
PERMANENT INJUNCTION "UNTIL THE LEGISLATURE, AS PROVISIONALLY
REAPPORTIONED  ...  , HAS AN OPPORTUNITY TO PROVIDE FOR A TRUE
REAPPORTIONMENT OF BOTH HOUSES OF THE ALABAMA LEGISLATURE," THE COURT
EMPHASIZED THAT ITS "MODERATE" ACTION WAS DESIGNED TO BREAK THE
STRANGLE HOLD BY THE SMALLER COUNTIES ON THE ALABAMA LEGISLATURE AND
WOULD NOT SUFFICE AS A PERMANENT REAPPORTIONMENT.  ON JULY 25, 1962,
THE COURT ENTERED ITS DECREE IN ACCORDANCE WITH ITS PREVIOUSLY STATED
DETERMINATIONS, CONCLUDING THAT "PLAINTIFFS  ...  ARE DENIED  ...
EQUAL PROTECTION  ...  BY VIRTUE OF THE DEBASEMENT OF THEIR VOTES SINCE
THE LEGISLATURE OF THE STATE OF ALABAMA HAS FAILED AND CONTINUES TO
FAIL TO REAPPORTION ITSELF AS REQUIRED BY LAW."  IT ENJOINED THE
DEFENDANT STATE OFFICIALS FROM HOLDING ANY FUTURE ELECTIONS UNDER ANY
OF THE APPORTIONMENT PLANS THAT IT HAD FOUND INVALID, AND STATED THAT
THE 1962 ELECTION OF ALABAMA LEGISLATORS COULD VALIDLY BE CONDUCTED
ONLY UNDER THE APPORTIONMENT SCHEME SPECIFIED IN THE COURT'S ORDER. 

AFTER THE DISTRICT COURT'S DECISION, NEW PRIMARY ELECTIONS WERE HELD
PURSUANT TO LEGISLATION ENACTED IN 1962 AT THE SAME SPECIAL SESSION AS
THE PROPOSED CONSTITUTIONAL AMENDMENT AND THE CRAWFORD-WEBB ACT, TO BE
EFFECTIVE IN THE EVENT THE COURT ITSELF ORDERED A PARTICULAR
REAPPORTIONMENT PLAN INTO IMMEDIATE EFFECT.  THE NOVEMBER 1962 GENERAL
ELECTION WAS LIKEWISE CONDUCTED ON THE BASIS OF THE DISTRICT COURT'S
ORDERED APPORTIONMENT OF LEGISLATIVE SEATS, AS MR. JUSTICE BLACK
REFUSED TO STAY THE DISTRICT COURT'S ORDER.  CONSEQUENTLY, THE PRESENT
ALABAMA LEGISLATURE IS APPORTIONED IN ACCORDANCE WITH THE TEMPORARY
PLAN PRESCRIBED BY THE DISTRICT COURT'S DECREE.  ALL MEMBERS OF BOTH
HOUSES OF THE ALABAMA LEGISLATURE SERVE FOUR-YEAR TERMS, SO THAT THE
NEXT REGULARLY SCHEDULED ELECTION OF LEGISLATORS WILL NOT BE HELD UNTIL
1966.  THE 1963 REGULAR SESSION OF THE ALABAMA LEGISLATURE PRODUCED NO
LEGISLATION RELATING TO LEGISLATIVE APPORTIONMENT, (FN24) AND THE
LEGISLATURE, WHICH MEETS BIENNIALLY, WILL NOT HOLD ANOTHER REGULAR
SESSION UNTIL 1965. 

NO EFFECTIVE POLITICAL REMEDY TO OBTAIN RELIEF AGAINST THE ALLEGED
MALAPPORTIONMENT OF THE ALABAMA LEGISLATURE APPEARS TO HAVE BEEN
AVAILABLE.  (FN25)  NO INITIATIVE PROCEDURE EXISTS UNDER ALABAMA LAW. 
AMENDMENT OF THE STATE CONSTITUTION CAN BE ACHIEVED ONLY AFTER A
PROPOSAL IS ADOPTED BY THREE-FIFTHS OF THE MEMBERS OF BOTH HOUSES OF
THE LEGISLATURE AND IS APPROVED BY A MAJORITY OF THE PEOPLE, (FN26) OR
AS A RESULT OF A CONSTITUTIONAL CONVENTION CONVENED AFTER APPROVAL BY
THE PEOPLE OF A CONVENTION CALL INITIATED BY A MAJORITY OF BOTH HOUSES
OF THE ALABAMA LEGISLATURE.  (FN27)    NOTICES OF APPEAL TO THIS COURT
FROM THE DISTRICT COURT'S DECISION WERE TIMELY FILED BY DEFENDANTS
BELOW (APPELLANTS IN NO. 23) AND BY TWO GROUPS OF INTERVENOR-PLAINTIFFS
(CROSS-APPELLANTS IN NOS. 27 AND 41).  APPELLANTS IN NO. 23 CONTEND
THAT THE DISTRICT COURT ERRED IN HOLDING THE EXISTING AND THE TWO
PROPOSED PLANS FOR THE APPORTIONMENT OF SEATS IN THE ALABAMA
LEGISLATURE UNCONSTITUTIONAL, AND THAT A FEDERAL COURT LACKS THE POWER
TO AFFIRMATIVELY REAPPORTION SEATS IN A STATE LEGISLATURE.  CROSS
APPELLANTS IN NO. 27 ASSERT THAT THE COURT BELOW ERRED IN FAILING TO
COMPEL REAPPORTIONMENT OF THE ALABAMA SENATE ON A POPULATION BASIS AS
ALLEGEDLY REQUIRED BY THE ALABAMA CONSTITUTION AND THE EQUAL PROTECTION
CLAUSE OF THE FEDERAL CONSTITUTION.  CROSS-APPELLANTS IN NO. 41 CONTEND
THAT THE DISTRICT COURT SHOULD HAVE REQUIRED AND ORDERED INTO EFFECT
THE APPORTIONMENT OF SEATS IN BOTH HOUSES OF THE ALABAMA LEGISLATURE ON
A POPULATION BASIS.  WE NOTED PROBABLE JURISDICTION ON JUNE 10, 1963. 
374 U.S. 802. 

                                             II. 

UNDENIABLY THE CONSTITUTION OF THE UNITED STATES PROTECTS THE RIGHT
OF ALL QUALIFIED CITIZENS TO VOTE, IN STATE AS WELL AS IN FEDERAL
ELECTIONS.  A CONSISTENT LINE OF DECISIONS BY THIS COURT IN CASES
INVOLVING ATTEMPTS TO DENY OR RESTRICT THE RIGHT OF SUFFRAGE HAS MADE
THIS INDELIBLY CLEAR.  IT HAS BEEN REPEATEDLY RECOGNIZED THAT ALL
QUALIFIED VOTERS HAVE A CONSTITUTIONALLY PROTECTED RIGHT TO VOTE, EX
PARTE YARBROUGH, 110 U.S. 651, AND TO HAVE THEIR VOTES COUNTED, UNITED
STATES V. MOSLEY, 238 U.S. 383.  IN MOSLEY THE COURT STATED THAT IT IS
"AS EQUALLY UNQUESTIONABLE THAT THE RIGHT TO HAVE ONE'S VOTE COUNTED IS
AS OPEN TO PROTECTION  ...  AS THE RIGHT TO PUT A BALLOT IN A BOX." 
238 U.S., AT 386.  THE RIGHT TO VOTE CAN NEITHER BE DENIED OUTRIGHT,
GUINN V. UNITED STATES, 238 U.S. 347, LANE V. WILSON, 307 U.S. 268, NOR
DESTROYED BY ALTERATION OF BALLOTS, SEE UNITED STATES V. CLASSIC, 313
U.S. 299, 315, NOR DILUTED BY BALLOT-BOX STUFFING, EX PARTE SIEBOLD,
100 U.S. 371, UNITED STATES V. SAYLOR, 322 U.S. 385.  AS THE COURT
STATED IN CLASSIC, "OBVIOUSLY INCLUDED WITHIN THE RIGHT TO CHOOSE,
SECURED BY THE CONSTITUTION, IS THE RIGHT OF QUALIFIED VOTERS WITHIN A
STATE TO CAST THEIR BALLOTS AND HAVE THEM COUNTED  ...  ."  313 U.S.,
AT 315.  RACIALLY BASED GERRYMANDERING, GOMILLION V. LIGHTFOOT, 364
U.S. 339, AND THE CONDUCTING OF WHITE PRIMARIES, NIXON V. HERNDON, 273
U.S. 536, NIXON V. CONDON, 286 U.S. 73, SMITH V. ALLWRIGHT, 321 U.S.
649, TERRY V. ADAMS, 345 U.S. 461, BOTH OF WHICH RESULT IN DENYING TO
SOME CITIZENS THEIR RIGHT TO VOTE, HAVE BEEN HELD TO BE
CONSTITUTIONALLY IMPERMISSIBLE.  AND HISTORY HAS SEEN A CONTINUING
EXPANSION OF THE SCOPE OF THE RIGHT OF SUFFRAGE IN THIS COUNTRY. 
(FN28)  THE RIGHT TO VOTE FREELY FOR THE CANDIDATE OF ONE'S CHOICE IS
OF THE ESSENCE OF A DEMOCRATIC SOCIETY, AND ANY RESTRICTIONS ON THAT
RIGHT STRIKE AT THE HEART OF REPRESENTATIVE GOVERNMENT.  AND THE RIGHT
OF SUFFRAGE CAN BE DENIED BY A DEBASEMENT OR DILUTION OF THE WEIGHT OF
A CITIZEN'S VOTE JUST AS EFFECTIVELY AS BY WHOLLY PROHIBITING THE FREE
EXERCISE OF THE FRANCHISE.  (FN29) 

IN BAKER V. CARR, 369 U.S. 186, WE HELD THAT A CLAIM ASSERTED UNDER
THE EQUAL PROTECTION CLAUSE CHALLENGING THE CONSTITUTIONALITY OF A
STATE'S APPORTIONMENT OF SEATS IN ITS LEGISLATURE, ON THE GROUND THAT
THE RIGHT TO VOTE OF CERTAIN CITIZENS WAS EFFECTIVELY IMPAIRED SINCE
DEBASED AND DILUTED, IN EFFECT PRESENTED A JUSTICIABLE CONTROVERSY
SUBJECT TO ADJUDICATION BY FEDERAL COURTS.  THE SPATE OF SIMILAR CASES
FILED AND DECIDED BY LOWER COURTS SINCE OUR DECISION IN BAKER AMPLY
SHOWS THAT THE PROBLEM OF STATE LEGISLATIVE MALAPPORTIONMENT IS ONE
THAT IS PERCEIVED TO EXIST IN A LARGE NUMBER OF THE STATES.  (FN30)  IN
BAKER, A SUIT INVOLVING AN ATTACK ON THE APPORTIONMENT OF SEATS IN THE
TENNESSEE LEGISLATURE, WE REMANDED TO THE DISTRICT COURT, WHICH HAD
DISMISSED THE ACTION, FOR CONSIDERATION ON THE MERITS.  WE INTIMATED NO
VIEW AS TO THE PROPER CONSTITUTIONAL STANDARDS FOR EVALUATING THE
VALIDITY OF A STATE LEGISLATIVE APPORTIONMENT SCHEME.  NOR DID WE GIVE
ANY CONSIDERATION TO THE QUESTION OF APPROPRIATE REMEDIES.  RATHER, WE
SIMPLY STATED: 

"BEYOND NOTING THAT WE HAVE NO CAUSE AT THIS STAGE TO DOUBT THE
DISTRICT COURT WILL BE ABLE TO FASHION RELIEF IF VIOLATIONS OF
CONSTITUTIONAL RIGHTS ARE FOUND, IT IS IMPROPER NOW TO CONSIDER WHAT
REMEDY WOULD BE MOST APPROPRIATE IF APPELLANTS PREVAIL AT THE TRIAL." 
(FN31) 

WE INDICATED IN BAKER, HOWEVER, THAT THE EQUAL PROTECTION CLAUSE
PROVIDES DISCOVERABLE AND MANAGEABLE STANDARDS FOR USE BY LOWER COURTS
IN DETERMINING THE CONSTITUTIONALITY OF A STATE LEGISLATIVE
APPORTIONMENT SCHEME, AND WE STATED: 

"NOR NEED THE APPELLANTS, IN ORDER TO SUCCEED IN THIS ACTION, ASK THE
COURT TO ENTER UPON POLICY DETERMINATIONS FOR WHICH JUDICIALLY
MANAGEABLE STANDARDS ARE LACKING.  JUDICIAL STANDARDS UNDER THE EQUAL
PROTECTION CLAUSE ARE WELL DEVELOPED AND FAMILIAR, AND IT HAS BEEN OPEN
TO COURTS SINCE THE ENACTMENT OF THE FOURTEENTH AMENDMENT TO DETERMINE,
IF ON THE PARTICULAR FACTS THEY MUST, THAT A DISCRIMINATION REFLECTS NO
POLICY, BUT SIMPLY ARBITRARY AND CAPRICIOUS ACTION."  (FN32) 

SUBSEQUENT TO BAKER, WE REMANDED SEVERAL CASES TO THE COURTS BELOW
FOR RECONSIDERATION IN LIGHT OF THAT DECISION.  (FN33) 

IN GRAY V. SANDERS, 372 U.S. 368, WE HELD THAT THE GEORGIA COUNTY
UNIT SYSTEM, APPLICABLE IN STATEWIDE PRIMARY ELECTIONS, WAS
UNCONSTITUTIONAL SINCE IT RESULTED IN A DILUTION OF THE WEIGHT OF THE
VOTES OF CERTAIN GEORGIA VOTERS MERELY BECAUSE OF WHERE THEY RESIDED. 
AFTER INDICATING THAT THE FIFTEENTH AND NINETEENTH AMENDMENTS PROHIBIT
A STATE FROM OVERWEIGHTING OR DILUTING VOTES ON THE BASIS OF RACE OR
SEX, WE STATED: 

"HOW THEN CAN ONE PERSON BE GIVEN TWICE OR TEN TIMES THE VOTING POWER
OF ANOTHER PERSON IN A STATEWIDE ELECTION MERELY BECAUSE HE LIVES IN A
RURAL AREA OR BECAUSE HE LIVES IN THE SMALLEST RURAL COUNTY?  ONCE THE
GEOGRAPHICAL UNIT FOR WHICH A REPRESENTATIVE IS TO BE CHOSEN IS
DESIGNATED, ALL WHO PARTICIPATE IN THE ELECTION ARE TO HAVE AN EQUAL
VOTE - WHATEVER THEIR RACE, WHATEVER THEIR SEX, WHATEVER THEIR
OCCUPATION, WHATEVER THEIR INCOME, AND WHEREVER THEIR HOME MAY BE IN
THAT GEOGRAPHICAL UNIT.  THIS IS REQUIRED BY THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  THE CONCEPT OF 'WE THE PEOPLE'
UNDER THE CONSTITUTION VISUALIZES NO PREFERRED CLASS OF VOTERS BUT
EQUALITY AMONG THOSE WHO MEET THE BASIC QUALIFICATIONS.  THE IDEA THAT
EVERY VOTER IS EQUAL TO EVERY OTHER VOTER IN HIS STATE, WHEN HE CASTS
HIS BALLOT IN FAVOR OF ONE OF SEVERAL COMPETING CANDIDATES, UNDERLIES
MANY OF OUR DECISIONS."  (FN34) 

CONTINUING, WE STATED THAT "THERE IS NO INDICATION IN THE
CONSTITUTION THAT HOMESITE OR OCCUPATION AFFORDS A PERMISSIBLE BASIS
FOR DISTINGUISHING BETWEEN QUALIFIED VOTERS WITHIN THE STATE."  AND,
FINALLY, WE CONCLUDED: "THE CONCEPTION OF POLITICAL EQUALITY FROM THE
DECLARATION OF INDEPENDENCE, TO LINCOLN'S GETTYSBURG ADDRESS, TO THE
FIFTEENTH, SEVENTEENTH, AND NINETEENTH AMENDMENTS CAN MEAN ONLY ONE
THING - ONE PERSON, ONE VOTE."  (FN35) 

WE STATED IN GRAY, HOWEVER, THAT THAT CASE: 

"UNLIKE BAKER V. CARR,  ...  DOES NOT INVOLVE A QUESTION OF THE
DEGREE TO WHICH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
LIMITS THE AUTHORITY OF A STATE LEGISLATURE IN DESIGNING THE
GEOGRAPHICAL DISTRICTS FROM WHICH REPRESENTATIVES ARE CHOSEN EITHER FOR
THE STATE LEGISLATURE OR FOR THE FEDERAL HOUSE OF REPRESENTATIVES  ...
.  NOR DOES IT PRESENT THE QUESTION, INHERENT IN THE BICAMERAL FORM OF
OUR FEDERAL GOVERNMENT, WHETHER A STATE MAY HAVE ONE HOUSE CHOSEN
WITHOUT REGARD TO POPULATION."  (FN36) 

OF COURSE, IN THESE CASES WE ARE FACED WITH THE PROBLEM NOT PRESENTED
IN GRAY - THAT OF DETERMINING THE BASIC STANDARDS AND STATING THE
APPLICABLE GUIDELINES FOR IMPLEMENTING OUR DECISION IN BAKER V. CARR. 

IN WESBERRY V. SANDERS, 376 U.S. 1, DECIDED EARLIER THIS TERM, WE
HELD THAT ATTACKS ON THE CONSTITUTIONALITY OF CONGRESSIONAL DISTRICTING
PLANS ENACTED BY STATE LEGISLATURES DO NOT PRESENT NONJUSTICIABLE
QUESTIONS AND SHOULD NOT BE DISMISSED GENERALLY FOR "WANT OF EQUITY." 
WE DETERMINED THAT THE CONSTITUTIONAL TEST FOR THE VALIDITY OF
CONGRESSIONAL DISTRICTING SCHEMES WAS ONE OF SUBSTANTIAL EQUALITY OF
POPULATION AMONG THE VARIOUS DISTRICTS ESTABLISHED BY A STATE
LEGISLATURE FOR THE ELECTION OF MEMBERS OF THE FEDERAL HOUSE OF
REPRESENTATIVES. 

IN THAT CASE WE DECIDED THAT AN APPORTIONMENT OF CONGRESSIONAL SEATS
WHICH "CONTRACTS THE VALUE OF SOME VOTES AND EXPANDS THAT OF OTHERS" IS
UNCONSTITUTIONAL, SINCE "THE FEDERAL CONSTITUTION INTENDS THAT WHEN
QUALIFIED VOTERS ELECT MEMBERS OF CONGRESS EACH VOTE BE GIVEN AS MUCH
WEIGHT AS ANY OTHER VOTE  ...  ."  WE CONCLUDED THAT THE CONSTITUTIONAL
PRESCRIPTION FOR ELECTION OF MEMBERS OF THE HOUSE OF REPRESENTATIVES
"BY THE PEOPLE," CONSTRUED IN ITS HISTORICAL CONTEXT, "MEANS THAT AS
NEARLY AS IS PRACTICABLE ONE MAN'S VOTE IN A CONGRESSIONAL ELECTION IS
TO BE WORTH AS MUCH AS ANOTHER'S."  WE FURTHER STATED: 

"IT WOULD DEFEAT THE PRINCIPLE SOLEMNLY EMBODIED IN THE GREAT
COMPROMISE - EQUAL REPRESENTATION IN THE HOUSE FOR EQUAL NUMBERS OF
PEOPLE - FOR US TO HOLD THAT, WITHIN THE STATES, LEGISLATURES MAY DRAW
THE LINES OF CONGRESSIONAL DISTRICTS IN SUCH A WAY AS TO GIVE SOME
VOTERS A GREATER VOICE IN CHOOSING A CONGRESSMAN THAN OTHERS."  (FN37) 

WE FOUND FURTHER, IN WESBERRY, THAT "OUR CONSTITUTION'S PLAIN
OBJECTIVE" WAS THAT "OF MAKING EQUAL REPRESENTATION FOR EQUAL NUMBERS
OF PEOPLE THE FUNDAMENTAL GOAL  ...  ."  WE CONCLUDED BY STATING: 

"NO RIGHT IS MORE PRECIOUS IN A FREE COUNTRY THAN THAT OF HAVING A
VOICE IN THE ELECTION OF THOSE WHO MAKE THE LAWS UNDER WHICH, AS GOOD
CITIZENS, WE MUST LIVE.  OTHER RIGHTS, EVEN THE MOST BASIC, ARE
ILLUSORY IF THE RIGHT TO VOTE IS UNDERMINED.  OUR CONSTITUTION LEAVES
NO ROOM FOR CLASSIFICATION OF PEOPLE IN A WAY THAT UNNECESSARILY
ABRIDGES THIS RIGHT."  (FN38) 

GRAY AND WESBERRY ARE OF COURSE NOT DISPOSITIVE OF OR DIRECTLY
CONTROLLING ON OUR DECISION IN THESE CASES INVOLVING STATE LEGISLATIVE
APPORTIONMENT CONTROVERSIES.  ADMITTEDLY, THOSE DECISIONS, IN WHICH WE
HELD THAT, IN STATEWIDE AND IN CONGRESSIONAL ELECTIONS, ONE PERSON'S
VOTE MUST BE COUNTED EQUALLY WITH THOSE OF ALL OTHER VOTERS IN A STATE,
WERE BASED ON DIFFERENT CONSTITUTIONAL CONSIDERATIONS AND WERE
ADDRESSED TO RATHER DISTINCT PROBLEMS.  BUT NEITHER ARE THEY WHOLLY
INAPPOSITE.  GRAY, THOUGH NOT DETERMINATIVE HERE SINCE INVOLVING THE
WEIGHTING OF VOTES IN STATEWIDE ELECTIONS, ESTABLISHED THE BASIC
PRINCIPLE OF EQUALITY AMONG VOTERS WITHIN A STATE, AND HELD THAT VOTERS
CANNOT BE CLASSIFIED, CONSTITUTIONALLY, ON THE BASIS OF WHERE THEY
LIVE, AT LEAST WITH RESPECT TO VOTING IN STATEWIDE ELECTIONS.  AND OUR
DECISION IN WESBERRY WAS OF COURSE GROUNDED ON THAT LANGUAGE OF THE
CONSTITUTION WHICH PRESCRIBES THAT MEMBERS OF THE FEDERAL HOUSE OF
REPRESENTATIVES ARE TO BE CHOSEN "BY THE PEOPLE," WHILE ATTACKS ON
STATE LEGISLATIVE APPORTIONMENT SCHEMES, SUCH AS THAT INVOLVED IN THE
INSTANT CASES, ARE PRINCIPALLY BASED ON THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  NEVERTHELESS, WESBERRY CLEARLY ESTABLISHED
THAT THE FUNDAMENTAL PRINCIPLE OF REPRESENTATIVE GOVERNMENT IN THIS
COUNTRY IS ONE OF EQUAL REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE,
WITHOUT REGARD TO RACE, SEX, ECONOMIC STATUS, OR PLACE OF RESIDENCE
WITHIN A STATE.  OUR PROBLEM, THEN, IS TO ASCERTAIN, IN THE INSTANT
CASES, WHETHER THERE ARE ANY CONSTITUTIONALLY COGNIZABLE PRINCIPLES
WHICH WOULD JUSTIFY DEPARTURES FROM THE BASIC STANDARD OF EQUALITY
AMONG VOTERS IN THE APPORTIONMENT OF SEATS IN STATE LEGISLATURES. 

                                            III. 

A PREDOMINANT CONSIDERATION IN DETERMINING WHETHER A STATE'S
LEGISLATIVE APPORTIONMENT SCHEME CONSTITUTES AN INVIDIOUS
DISCRIMINATION VIOLATIVE OF RIGHTS ASSERTED UNDER THE EQUAL PROTECTION
CLAUSE IS THAT THE RIGHTS ALLEGEDLY IMPAIRED ARE INDIVIDUAL AND
PERSONAL IN NATURE.  AS STATED BY THE COURT IN UNITED STATES V.
BATHGATE, 246 U.S. 220, 227, "THE RIGHT TO VOTE IS PERSONAL  ...  ." 
(FN39)  WHILE THE RESULT OF A COURT DECISION IN A STATE LEGISLATIVE
APPORTIONMENT CONTROVERSY MAY BE TO REQUIRE THE RESTRUCTURING OF THE
GEOGRAPHICAL DISTRIBUTION OF SEATS IN A STATE LEGISLATURE, THE JUDICIAL
FOCUS MUST BE CONCENTRATED UPON ASCERTAINING WHETHER THERE HAS BEEN ANY
DISCRIMINATION AGAINST CERTAIN OF THE STATE'S CITIZENS WHICH
CONSTITUTES AN IMPERMISSIBLE IMPAIRMENT OF THEIR CONSTITUTIONALLY
PROTECTED RIGHT TO VOTE.  LIKE SKINNER V. OKLAHOMA, 316 U.S. 535, SUCH
A CASE "TOUCHES A SENSITIVE AND IMPORTANT AREA OF HUMAN RIGHTS," AND
"INVOLVES ONE OF THE BASIC CIVIL RIGHTS OF MAN," PRESENTING QUESTIONS
OF ALLEGED "INVIDIOUS DISCRIMINATIONS  ...  AGAINST GROUPS OR TYPES OF
INDIVIDUALS IN VIOLATION OF THE CONSTITUTIONAL GUARANTY OF JUST AND
EQUAL LAWS."  316 U.S., AT 536, 541.  UNDOUBTEDLY, THE RIGHT OF
SUFFRAGE IS A FUNDAMENTAL MATTER IN A FREE AND DEMOCRATIC SOCIETY. 
ESPECIALLY SINCE THE RIGHT TO EXERCISE THE FRANCHISE IN A FREE AND
UNIMPAIRED MANNER IS PRESERVATIVE OF OTHER BASIC CIVIL AND POLITICAL
RIGHTS, ANY ALLEGED INFRINGEMENT OF THE RIGHT OF CITIZENS TO VOTE MUST
BE CAREFULLY AND METICULOUSLY SCRUTINIZED.  ALMOST A CENTURY AGO, IN
YICK WO V. HOPKINS, 118 U.S. 356, THE COURT REFERRED TO "THE POLITICAL
FRANCHISE OF VOTING" AS "A FUNDAMENTAL POLITICAL RIGHT, BECAUSE
PRESERVATIVE OF ALL RIGHTS."  118 U.S., AT 370. 

LEGISLATORS REPRESENT PEOPLE, NOT TREES OR ACRES.  LEGISLATORS ARE
ELECTED BY VOTERS, NOT FARMS OR CITIES OR ECONOMIC INTERESTS.  AS LONG
AS OURS IS A REPRESENTATIVE FORM OF GOVERNMENT, AND OUR LEGISLATURES
ARE THOSE INSTRUMENTS OF GOVERNMENT ELECTED DIRECTLY BY AND DIRECTLY
REPRESENTATIVE OF THE PEOPLE, THE RIGHT TO ELECT LEGISLATORS IN A FREE
AND UNIMPAIRED FASHION IS A BEDROCK OF OUR POLITICAL SYSTEM.  IT COULD
HARDLY BE GAINSAID THAT A CONSTITUTIONAL CLAIM HAD BEEN ASSERTED BY AN
ALLEGATION THAT CERTAIN OTHERWISE QUALIFIED VOTERS HAD BEEN ENTIRELY
PROHIBITED FROM VOTING FOR MEMBERS OF THEIR STATE LEGISLATURE.  AND, IF
A STATE SHOULD PROVIDE THAT THE VOTES OF CITIZENS IN ONE PART OF THE
STATE SHOULD BE GIVEN TWO TIMES, OR FIVE TIMES, OR 10 TIMES THE WEIGHT
OF VOTES OF CITIZENS IN ANOTHER PART OF THE STATE, IT COULD HARDLY BE
CONTENDED THAT THE RIGHT TO VOTE OF THOSE RESIDING IN THE DISFAVORED
AREAS HAD NOT BEEN EFFECTIVELY DILUTED.  IT WOULD APPEAR EXTRAORDINARY
TO SUGGEST THAT A STATE COULD BE CONSTITUTIONALLY PERMITTED TO ENACT A
LAW PROVIDING THAT CERTAIN OF THE STATE'S VOTERS COULD VOTE TWO, FIVE,
OR 10 TIMES FOR THEIR LEGISLATIVE REPRESENTATIVES, WHILE VOTERS LIVING
ELSEWHERE COULD VOTE ONLY ONCE.  AND IT IS INCONCEIVABLE THAT A STATE
LAW TO THE EFFECT THAT, IN COUNTING VOTES FOR LEGISLATORS, THE VOTES OF
CITIZENS IN ONE PART OF THE STATE WOULD BE MULTIPLIED BY TWO, FIVE, OR
10, WHILE THE VOTES OF PERSONS IN ANOTHER AREA WOULD BE COUNTED ONLY AT
FACE VALUE, COULD BE CONSTITUTIONALLY SUSTAINABLE.  OF COURSE, THE
EFFECT OF STATE LEGISLATIVE DISTRICTING SCHEMES WHICH GIVE THE SAME
NUMBER OF REPRESENTATIVES TO UNEQUAL NUMBERS OF CONSTITUENTS IS
IDENTICAL.  (FN40)  OVERWEIGHTING AND OVERVALUATION OF THE VOTES OF
THOSE LIVING HERE HAS THE CERTAIN EFFECT OF DILUTION AND UNDERVALUATION
OF THE VOTES OF THOSE LIVING THERE.  THE RESULTING DISCRIMINATION
AGAINST THOSE INDIVIDUAL VOTERS LIVING IN DISFAVORED AREAS IS EASILY
DEMONSTRABLE MATHEMATICALLY.  THEIR RIGHT TO VOTE IS SIMPLY NOT THE
SAME RIGHT TO VOTE AS THAT OF THOSE LIVING IN A FAVORED PART OF THE
STATE.  TWO, FIVE, OR 10 OF THEM MUST VOTE BEFORE THE EFFECT OF THEIR
VOTING IS EQUIVALENT TO THAT OF THEIR FAVORED NEIGHBOR.  WEIGHTING THE
VOTES OF CITIZENS DIFFERENTLY, BY ANY METHOD OR MEANS, MERELY BECAUSE
OF WHERE THEY HAPPEN TO RESIDE, HARDLY SEEMS JUSTIFIABLE.  ONE MUST BE
EVER AWARE THAT THE CONSTITUTION FORBIDS "SOPHISTICATED AS WELL AS
SIMPLE-MINDED MODES OF DISCRIMINATION."  LANE V. WILSON, 307 U.S. 268,
275; GOMILLION V. LIGHTFOOT, 364 U.S. 339, 342.  AS WE STATED IN
WESBERRY V. SANDERS, SUPRA: 

"WE DO NOT BELIEVE THAT THE FRAMERS OF THE CONSTITUTION INTENDED TO
PERMIT THE SAME VOTE-DILUTING DISCRIMINATION TO BE ACCOMPLISHED THROUGH
THE DEVICE OF DISTRICTS CONTAINING WIDELY VARIED NUMBERS OF
INHABITANTS.  TO SAY THAT A VOTE IS WORTH MORE IN ONE DISTRICT THAN IN
ANOTHER WOULD  ...  RUN COUNTER TO OUR FUNDAMENTAL IDEAS OF DEMOCRATIC
GOVERNMENT  ...  ."  (FN41) 

STATE LEGISLATURES ARE, HISTORICALLY, THE FOUNTAINHEAD OF
REPRESENTATIVE GOVERNMENT IN THIS COUNTRY.  A NUMBER OF THEM HAVE THEIR
ROOTS IN COLONIAL TIMES, AND SUBSTANTIALLY ANTEDATE THE CREATION OF OUR
NATION AND OUR FEDERAL GOVERNMENT.  IN FACT, THE FIRST FORMAL STIRRINGS
OF AMERICAN POLITICAL INDEPENDENCE ARE TO BE FOUND, IN LARGE PART, IN
THE VIEWS AND ACTIONS OF SEVERAL OF THE COLONIAL LEGISLATIVE BODIES. 
WITH THE BIRTH OF OUR NATIONAL GOVERNMENT, AND THE ADOPTION AND
RATIFICATION OF THE FEDERAL CONSTITUTION, STATE LEGISLATURES RETAINED A
MOST IMPORTANT PLACE IN OUR NATION'S GOVERNMENTAL STRUCTURE.  BUT
REPRESENTATIVE GOVERNMENT IS IN ESSENCE SELF-GOVERNMENT THROUGH THE
MEDIUM OF ELECTED REPRESENTATIVES OF THE PEOPLE, AND EACH AND EVERY
CITIZEN HAS AN INALIENABLE RIGHT TO FULL AND EFFECTIVE PARTICIPATION IN
THE POLITICAL PROCESSES OF HIS STATE'S LEGISLATIVE BODIES.  MOST
CITIZENS CAN ACHIEVE THIS PARTICIPATION ONLY AS QUALIFIED VOTERS
THROUGH THE ELECTION OF LEGISLATORS TO REPRESENT THEM.  FULL AND
EFFECTIVE PARTICIPATION BY ALL CITIZENS IN STATE GOVERNMENT REQUIRES,
THEREFORE, THAT EACH CITIZEN HAVE AN EQUALLY EFFECTIVE VOICE IN THE
ELECTION OF MEMBERS OF HIS STATE LEGISLATURE.  MODERN AND VIABLE STATE
GOVERNMENT NEEDS, AND THE CONSTITUTION DEMANDS, NO LESS. 

LOGICALLY, IN A SOCIETY OSTENSIBLY GROUNDED ON REPRESENTATIVE
GOVERNMENT, IT WOULD SEEM REASONABLE THAT A MAJORITY OF THE PEOPLE OF A
STATE COULD ELECT A MAJORITY OF THAT STATE'S LEGISLATORS.  TO CONCLUDE
DIFFERENTLY, AND TO SANCTION MINORITY CONTROL OF STATE LEGISLATIVE
BODIES, WOULD APPEAR TO DENY MAJORITY RIGHTS IN A WAY THAT FAR
SURPASSES ANY POSSIBLE DENIAL OF MINORITY RIGHTS THAT MIGHT OTHERWISE
BE THOUGHT TO RESULT.  SINCE LEGISLATURES ARE RESPONSIBLE FOR ENACTING
LAWS BY WHICH ALL CITIZENS ARE TO BE GOVERNED, THEY SHOULD BE BODIES
WHICH ARE COLLECTIVELY RESPONSIVE TO THE POPULAR WILL.  AND THE CONCEPT
OF EQUAL PROTECTION HAS BEEN TRADITIONALLY VIEWED AS REQUIRING THE
UNIFORM TREATMENT OF PERSONS STANDING IN THE SAME RELATION TO THE
GOVERNMENTAL ACTION QUESTIONED OR CHALLENGED.  WITH RESPECT TO THE
ALLOCATION OF LEGISLATIVE REPRESENTATION, ALL VOTERS, AS CITIZENS OF A
STATE, STAND IN THE SAME RELATION REGARDLESS OF WHERE THEY LIVE.  ANY
SUGGESTED CRITERIA FOR THE DIFFERENTIATION OF CITIZENS ARE INSUFFICIENT
TO JUSTIFY ANY DISCRIMINATION, AS TO THE WEIGHT OF THEIR VOTES, UNLESS
RELEVANT TO THE PERMISSIBLE PURPOSES OF LEGISLATIVE APPORTIONMENT. 
SINCE THE ACHIEVING OF FAIR AND EFFECTIVE REPRESENTATION FOR ALL
CITIZENS IS CONCEDEDLY THE BASIC AIM OF LEGISLATIVE APPORTIONMENT, WE
CONCLUDE THAT THE EQUAL PROTECTION CLAUSE GUARANTEES THE OPPORTUNITY
FOR EQUAL PARTICIPATION BY ALL VOTERS IN THE ELECTION OF STATE
LEGISLATORS.  DILUTING THE WEIGHT OF VOTES BECAUSE OF PLACE OF
RESIDENCE IMPAIRS BASIC CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH
AMENDMENT JUST AS MUCH AS INVIDIOUS DISCRIMINATIONS BASED UPON FACTORS
SUCH AS RACE, BROWN V. BOARD OF EDUCATION, 347 U.S. 483, OR ECONOMIC
STATUS, GRIFFIN V. ILLINOIS, 351 U.S. 12, DOUGLAS V. CALIFORNIA, 372
U.S. 353.  OUR CONSTITUTIONAL SYSTEM AMPLY PROVIDES FOR THE PROTECTION
OF MINORITIES BY MEANS OTHER THAN GIVING THEM MAJORITY CONTROL OF STATE
LEGISLATURES.  AND THE DEMOCRATIC IDEALS OF EQUALITY AND MAJORITY RULE,
WHICH HAVE SERVED THIS NATION SO WELL IN THE PAST, ARE HARDLY OF ANY
LESS SIGNIFICANCE FOR THE PRESENT AND THE FUTURE. 

WE ARE TOLD THAT THE MATTER OF APPORTIONING REPRESENTATION IN A STATE
LEGISLATURE IS A COMPLEX AND MANY-FACETED ONE.  WE ARE ADVISED THAT
STATES CAN RATIONALLY CONSIDER FACTORS OTHER THAN POPULATION IN
APPORTIONING LEGISLATIVE REPRESENTATION.  WE ARE ADMONISHED NOT TO
RESTRICT THE POWER OF THE STATES TO IMPOSE DIFFERING VIEWS AS TO
POLITICAL PHILOSOPHY ON THEIR CITIZENS.  WE ARE CAUTIONED ABOUT THE
DANGERS OF ENTERING INTO POLITICAL THICKETS AND MATHEMATICAL
QUAGMIRES.  OUR ANSWER IS THIS: A DENIAL OF CONSTITUTIONALLY PROTECTED
RIGHTS DEMANDS JUDICIAL PROTECTION; OUR OATH AND OUR OFFICE REQUIRE NO
LESS OF US.  AS STATED IN GOMILLION V. LIGHTFOOT, SUPRA: 

"WHEN A STATE EXERCISES POWER WHOLLY WITHIN THE DOMAIN OF STATE
INTEREST, IT IS INSULATED FROM FEDERAL JUDICIAL REVIEW.  BUT SUCH
INSULATION IS NOT CARRIED OVER WHEN STATE POWER IS USED AS AN
INSTRUMENT FOR CIRCUMVENTING A FEDERALLY PROTECTED RIGHT."  (FN42) 

TO THE EXTENT THAT A CITIZEN'S RIGHT TO VOTE IS DEBASED, HE IS THAT
MUCH LESS A CITIZEN.  THE FACT THAT AN INDIVIDUAL LIVES HERE OR THERE
IS NOT A LEGITIMATE REASON FOR OVERWEIGHTING OR DILUTING THE EFFICACY
OF HIS VOTE.  THE COMPLEXIONS OF SOCIETIES AND CIVILIZATIONS CHANGE,
OFTEN WITH AMAZING RAPIDITY.  A NATION ONCE PRIMARILY RURAL IN
CHARACTER BECOMES PREDOMINANTLY URBAN.  (FN43) REPRESENTATION SCHEMES
ONCE FAIR AND EQUITABLE BECOME ARCHAIC AND OUTDATED.  BUT THE BASIC
PRINCIPLE OF REPRESENTATIVE GOVERNMENT REMAINS, AND MUST REMAIN,
UNCHANGED - THE WEIGHT OF A CITIZEN'S VOTE CANNOT BE MADE TO DEPEND ON
WHERE HE LIVES.  POPULATION IS, OF NECESSITY, THE STARTING POINT FOR
CONSIDERATION AND THE CONTROLLING CRITERION FOR JUDGMENT IN LEGISLATIVE
APPORTIONMENT CONTROVERSIES.   (FN44)  A CITIZEN, A QUALIFIED VOTER, IS
NO MORE NOR NO LESS SO BECAUSE HE LIVES IN THE CITY OR ON THE FARM. 
THIS IS THE CLEAR AND STRONG COMMAND OF OUR CONSTITUTION'S EQUAL
PROTECTION CLAUSE.  THIS IS AN ESSENTIAL PART OF THE CONCEPT OF A
GOVERNMENT OF LAWS AND NOT MEN.  THIS IS AT THE HEART OF LINCOLN'S
VISION OF "GOVERNMENT OF THE PEOPLE, BY THE PEOPLE, AND FOR THE
PEOPLE."  THE EQUAL PROTECTION CLAUSE DEMANDS NO LESS THAN
SUBSTANTIALLY EQUAL STATE LEGISLATIVE REPRESENTATION FOR ALL CITIZENS,
OF ALL PLACES AS WELL AS OF ALL RACES. 

                       IV. 

WE HOLD THAT, AS A BASIC CONSTITUTIONAL STANDARD, THE EQUAL
PROTECTION CLAUSE REQUIRES THAT THE SEATS IN BOTH HOUSES OF A BICAMERAL
STATE LEGISLATURE MUST BE APPORTIONED ON A POPULATION BASIS.  SIMPLY
STATED, AN INDIVIDUAL'S RIGHT TO VOTE FOR STATE LEGISLATORS IS
UNCONSTITUTIONALLY IMPAIRED WHEN ITS WEIGHT IS IN A SUBSTANTIAL FASHION
DILUTED WHEN COMPARED WITH VOTES OF CITIZENS LIVING IN OTHER PARTS OF
THE STATE.  SINCE, UNDER NEITHER THE EXISTING APPORTIONMENT PROVISIONS
NOR EITHER OF THE PROPOSED PLANS WAS EITHER OF THE HOUSES OF THE
ALABAMA LEGISLATURE APPORTIONED ON A POPULATION BASIS, THE DISTRICT
COURT CORRECTLY HELD THAT ALL THREE OF THESE SCHEMES WERE
CONSTITUTIONALLY INVALID.  FURTHERMORE, THE EXISTING APPORTIONMENT, AND
ALSO TO A LESSER EXTENT THE APPORTIONMENT UNDER THE CRAWFORD-WEBB ACT,
PRESENTED LITTLE MORE THAN CRAZY QUILTS, COMPLETELY LACKING IN
RATIONALITY, AND COULD BE FOUND INVALID ON THAT BASIS ALONE.  (FN45)
ALTHOUGH THE DISTRICT COURT PRESUMABLY FOUND THE APPORTIONMENT OF THE
ALABAMA HOUSE OF REPRESENTATIVES UNDER THE 67-SENATOR AMENDMENT TO BE
ACCEPTABLE, WE CONCLUDE THAT THE DEVIATIONS FROM A STRICT POPULATION
BASIS ARE TOO EGREGIOUS TO PERMIT US TO FIND THAT THAT BODY, UNDER THIS
PROPOSED PLAN, WAS APPORTIONED SUFFICIENTLY ON A POPULATION BASIS SO AS
TO PERMIT THE ARRANGEMENT TO BE CONSTITUTIONALLY SUSTAINED.   ALTHOUGH
ABOUT 43% OF THE STATE'S TOTAL POPULATION WOULD BE REQUIRED TO COMPRISE
DISTRICTS WHICH COULD ELECT A MAJORITY IN THAT BODY, ONLY 39 OF THE 106
HOUSE SEATS WERE ACTUALLY TO BE DISTRIBUTED ON A POPULATION BASIS, AS
EACH OF ALABAMA'S 67 COUNTIES WAS GIVEN AT LEAST ONE REPRESENTATIVE,
AND POPULATION-VARIANCE RATIOS OF CLOSE TO 5-TO-1 WOULD HAVE EXISTED. 
WHILE MATHEMATICAL NICETY IS NOT A CONSTITUTIONAL REQUISITE, ONE COULD
HARDLY CONCLUDE THAT THE ALABAMA HOUSE, UNDER THE PROPOSED CONSTITIONAL
AMENDMENT, HAD BEEN APPORTIONED SUFFICIENTLY ON A POPULATION BASIS TO
BE SUSTAINABLE UNDER THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE. 
AND NONE OF THE OTHER APPORTIONMENTS OF SEATS IN EITHER OF THE BODIES
OF THE ALABAMA LEGISLATURE, UNDER THE THREE PLANS CONSIDERED BY THE
DISTRICT COURT, CAME NEARLY AS CLOSE TO APPROACHING THE REQUIRED
CONSTITUTIONAL STANDARD AS DID THAT OF THE HOUSE OF REPRESENTATIVES
UNDER THE 67-SENATOR AMENDMENT. 

LEGISLATIVE APPORTIONMENT IN ALABAMA IS SIGNALLY ILLUSTRATIVE AND
SYMPTOMATIC OF THE SERIOUSNESS OF THIS PROBLEM IN A NUMBER OF THE
STATES.  AT THE TIME THIS LITIGATION WAS COMMENCED, THERE HAD BEEN NO
REAPPORTIONMENT OF SEATS IN THE ALABAMA LEGISLATURE FOR OVER 60 YEARS. 
(FN46)  LEGISLATIVE INACTION, COUPLED WITH THE UNAVAILABILITY OF ANY
POLITICAL OR JUDICIAL REMEDY, (FN47) HAD RESULTED, WITH THE PASSAGE OF
YEARS, IN THE PERPETUATED SCHEME BECOMING LITTLE MORE THAN AN
IRRATIONAL ANACHRONISM.  CONSISTENT FAILURE BY THE ALABAMA LEGISLATURE
TO COMPLY WITH STATE CONSTITUTIONAL REQUIREMENTS AS TO THE FREQUENCY OF
REAPPORTIONMENT AND THE BASES OF LEGISLATIVE REPRESENTATION RESULTED IN
A MINORITY STRANGLE HOLD ON THE STATE LEGISLATURE.  INEQUALITY OF
REPRESENTATION IN ONE HOUSE ADDED TO THE INEQUALITY IN THE OTHER.  WITH
THE CRAZY-QUILT EXISTING APPORTIONMENT VIRTUALLY CONCEDED TO BE
INVALID, THE ALABAMA LEGISLATURE OFFERED TWO PROPOSED PLANS FOR
CONSIDERATION BY THE DISTRICT COURT, NEITHER OF WHICH WAS TO BE
EFFECTIVE UNTIL 1966 AND NEITHER OF WHICH PROVIDED FOR THE
APPORTIONMENT OF EVEN ONE OF THE TWO HOUSES ON A POPULATION BASIS.  WE
FIND THAT THE COURT BELOW DID NOT ERR IN HOLDING THAT NEITHER OF THESE
PROPOSED REAPPORTIONMENT SCHEMES, CONSIDERED AS A WHOLE, "MEETS THE
NECESSARY CONSTITUTIONAL REQUIREMENTS."  AND WE CONCLUDE THAT THE
DISTRICT COURT ACTED PROPERLY IN CONSIDERING THESE TWO PROPOSED PLANS,
ALTHOUGH NEITHER WAS TO BECOME EFFECTIVE UNTIL THE 1966 ELECTION AND
THE PROPOSED CONSTITUTIONAL AMENDMENT WAS SCHEDULED TO BE SUBMITTED TO
THE STATE'S VOTERS IN NOVEMBER 1962.  (FN48)  CONSIDERATION BY THE
COURT BELOW OF THE TWO PROPOSED PLANS WAS CLEARLY NECESSARY IN
DETERMINING WHETHER THE ALABAMA LEGISLATURE HAD ACTED EFFECTIVELY TO
CORRECT THE ADMITTEDLY EXISTING MALAPPORTIONMENT, AND IN ASCERTAINING
WHAT SORT OF JUDICIAL RELIEF, IF ANY, SHOULD BE AFFORDED. 

     V. 

SINCE NEITHER OF THE HOUSES OF THE ALABAMA LEGISLATURE, UNDER ANY OF
THE THREE PLANS CONSIDERED BY THE DISTRICT COURT, WAS APPORTIONED ON A
POPULATION BASIS, WE WOULD BE JUSTIFIED IN PROCEEDING NO FURTHER. 
HOWEVER, ONE OF THE PROPOSED PLANS, THAT CONTAINED IN THE SO-CALLED 67
SENATOR AMENDMENT, AT LEAST SUPERFICIALLY RESEMBLES THE SCHEME OF
LEGISLATIVE REPRESENTATION FOLLOWED IN THE FEDERAL CONGRESS.  UNDER
THIS PLAN, EACH OF ALABAMA'S 67 COUNTIES IS ALLOTTED ONE SENATOR, AND
NO COUNTIES ARE GIVEN MORE THAN ONE SENATE SEAT.  ARGUABLY, THIS IS
ANALOGOUS TO THE ALLOCATION OF TWO SENATE SEATS, IN THE FEDERAL
CONGRESS, TO EACH OF THE 50 STATES, REGARDLESS OF POPULATION.  SEATS IN
THE ALABAMA HOUSE, UNDER THE PROPOSED CONSTITUTIONAL AMENDMENT, ARE
DISTRIBUTED BY GIVING EACH OF THE 67 COUNTIES AT LEAST ONE, WITH THE
REMAINING 39 SEATS BEING ALLOTTED AMONG THE MORE POPULOUS COUNTIES ON A
POPULATION BASIS.  THIS SCHEME, AT LEAST AT FIRST GLANCE, APPEARS TO
RESEMBLE THAT PRESCRIBED FOR THE FEDERAL HOUSE OF REPRESENTATIVES,
WHERE THE 435 SEATS ARE DISTRIBUTED AMONG THE STATES ON A POPULATION
BASIS, ALTHOUGH EACH STATE, REGARDLESS OF ITS POPULATION, IS GIVEN AT
LEAST ONE CONGRESSMAN.  THUS, ALTHOUGH THERE ARE SUBSTANTIAL
DIFFERENCES IN UNDERLYING RATIONALE AND RESULT, (FN49) THE 67-SENATOR
AMENDMENT, AS PROPOSED BY THE ALABAMA LEGISLATURE, AT LEAST ARGUABLY
PRESENTS FOR CONSIDERATION A SCHEME ANALOGOUS TO THAT USED FOR
APPORTIONING SEATS IN CONGRESS.    MUCH HAS BEEN WRITTEN SINCE OUR
DECISION IN BAKER V. CARR ABOUT THE APPLICABILITY OF THE SO-CALLED
FEDERAL ANALOGY TO STATE LEGISLATIVE APPORTIONMENT ARRANGEMENTS. 
(FN50)  AFTER CONSIDERING THE MATTER, THE COURT BELOW CONCLUDED THAT NO
CONCEIVABLE ANALOGY COULD BE DRAWN BETWEEN THE FEDERAL SCHEME AND THE
APPORTIONMENT OF SEATS IN THE ALABAMA LEGISLATURE UNDER THE PROPOSED
CONSTITUTIONAL AMENDMENT.  (FN51)  WE AGREE WITH THE DISTRICT COURT,
AND FIND THE FEDERAL ANALOGY INAPPOSITE AND IRRELEVANT TO STATE
LEGISLATIVE DISTRICTING SCHEMES.  ATTEMPTED RELIANCE ON THE FEDERAL
ANALOGY APPEARS OFTEN TO BE LITTLE MORE THAN AN AFTER-THE-FACT
RATIONALIZATION OFFERED IN DEFENSE OF MALADJUSTED STATE APPORTIONMENT
ARRANGEMENTS.  THE ORIGINAL CONSTITUTIONS OF 36 OF OUR STATES PROVIDED
THAT REPRESENTATION IN BOTH HOUSES OF THE STATE LEGISLATURES WOULD BE
BASED COMPLETELY, OR PREDOMINANTLY, ON POPULATION.  (FN52)  AND THE
FOUNDING FATHERS CLEARLY HAD NO INTENTION OF ESTABLISHING A PATTERN OR
MODEL FOR THE APPORTIONMENT OF SEATS IN STATE LEGISLATURES WHEN THE
SYSTEM OF REPRESENTATION IN THE FEDERAL CONGRESS WAS ADOPTED.  (FN53)
DEMONSTRATIVE OF THIS IS THE FACT THAT THE NORTHWEST ORDINANCE, ADOPTED
IN THE SAME YEAR, 1787, AS THE FEDERAL CONSTITUTION, PROVIDED FOR THE
APPORTIONMENT OF SEATS IN TERRITORIAL LEGISLATURES SOLELY ON THE BASIS
OF POPULATION.  (FN54) 

THE SYSTEM OF REPRESENTATION IN THE TWO HOUSES OF THE FEDERAL
CONGRESS IS ONE INGRAINED IN OUR CONSTITUTION, AS PART OF THE LAW OF
THE LAND.  IT IS ONE CONCEIVED OUT OF COMPROMISE AND CONCESSION
INDISPENSABLE TO THE ESTABLISHMENT OF OUR FEDERAL REPUBLIC.  (FN55)
ARISING FROM UNIQUE HISTORICAL CIRCUMSTANCES, IT IS BASED ON THE
CONSIDERATION THAT IN ESTABLISHING OUR TYPE OF FEDERALISM A GROUP OF
FORMERLY INDEPENDENT STATES BOUND THEMSELVES TOGETHER UNDER ONE
NATIONAL GOVERNMENT.  ADMITTEDLY, THE ORIGINAL 13 STATES SURRENDERED
SOME OF THEIR SOVEREIGNTY IN AGREEING TO JOIN TOGETHER "TO FORM A MORE
PERFECT UNION."  BUT AT THE HEART OF OUR CONSTITUTIONAL SYSTEM REMAINS
THE CONCEPT OF SEPARATE AND DISTINCT GOVERNMENTAL ENTITIES WHICH HAVE
DELEGATED SOME, BUT NOT ALL, OF THEIR FORMERLY HELD POWERS TO THE
SINGLE NATIONAL GOVERNMENT.  THE FACT THAT ALMOST THREE-FOURTHS OF OUR
PRESENT STATES WERE NEVER IN FACT INDEPENDENTLY SOVEREIGN DOES NOT
DETRACT FROM OUR VIEW THAT THE SO-CALLED FEDERAL ANALOGY IS
INAPPLICABLE AS A SUSTAINING PRECEDENT FOR STATE LEGISLATIVE
APPORTIONMENTS.  THE DEVELOPING HISTORY AND GROWTH OF OUR REPUBLIC
CANNOT CLOUD THE FACT THAT, AT THE TIME OF THE INCEPTION OF THE SYSTEM
OF REPRESENTATION IN THE FEDERAL CONGRESS, A COMPROMISE BETWEEN THE
LARGER AND SMALLER STATES ON THIS MATTER AVERTED A DEADLOCK IN THE
CONSTITUTIONAL CONVENTION WHICH HAD THREATENED TO ABORT THE BIRTH OF
OUR NATION.  IN REJECTING AN ASSERTED ANALOGY TO THE FEDERAL ELECTORAL
COLLEGE IN GRAY V. SANDERS, SUPRA, WE STATED: 

"WE THINK THE ANALOGIES TO THE ELECTORAL COLLEGE, TO DISTRICTING AND
REDISTRICTING, AND TO OTHER PHASES OF THE PROBLEMS OF REPRESENTATION IN
STATE OR FEDERAL LEGISLATURES OR CONVENTIONS ARE INAPPOSITE.  THE
INCLUSION OF THE ELECTORAL COLLEGE IN THE CONSTITUTION, AS THE RESULT
OF SPECIFIC HISTORICAL CONCERNS, VALIDATED THE COLLEGIATE PRINCIPLE
DESPITE ITS INHERENT NUMERICAL INEQUALITY, BUT IMPLIED NOTHING ABOUT
THE USE OF AN ANALOGOUS SYSTEM BY A STATE IN A STATEWIDE ELECTION.  NO
SUCH SPECIFIC ACCOMMODATION OF THE LATTER WAS EVER UNDERTAKEN, AND
THEREFORE NO VALIDATION OF ITS NUMERICAL INEQUALITY ENSUED."  (FN56) 

POLITICAL SUBDIVISIONS OF STATES - COUNTIES, CITIES, OR WHATEVER -
NEVER WERE AND NEVER HAVE BEEN CONSIDERED AS SOVEREIGN ENTITIES. 
RATHER, THEY HAVE BEEN TRADITIONALLY REGARDED AS SUBORDINATE
GOVERNMENTAL INSTRUMENTALITIES CREATED BY THE STATE TO ASSIST IN THE
CARRYING OUT OF STATE GOVERNMENTAL FUNCTIONS.  AS STATED BY THE COURT
IN HUNTER V. CITY OF PITTSBURGH, 207 U.S. 161, 178, THESE GOVERNMENTAL
UNITS ARE "CREATED AS CONVENIENT AGENCIES FOR EXERCISING SUCH OF THE
GOVERNMENTAL POWERS OF THE STATE AS MAY BE ENTRUSTED TO THEM," AND THE
"NUMBER, NATURE AND DURATION OF THE POWERS CONFERRED UPON THEM  ...
AND THE TERRITORY OVER WHICH THEY SHALL BE EXERCISED RESTS IN THE
ABSOLUTE DISCRETION OF THE STATE."  THE RELATIONSHIP OF THE STATES TO
THE FEDERAL GOVERNMENT COULD HARDLY BE LESS ANALOGOUS. 

THUS, WE CONCLUDE THAT THE PLAN CONTAINED IN THE 67-SENATOR AMENDMENT
FOR APPORTIONING SEATS IN THE ALABAMA LEGISLATURE CANNOT BE SUSTAINED
BY RECOURSE TO THE SO-CALLED FEDERAL ANALOGY.  NOR CAN ANY OTHER
INEQUITABLE STATE LEGISLATIVE APPORTIONMENT SCHEME BE JUSTIFIED ON SUCH
AN ASSERTED BASIS.   THIS DOES NOT NECESSARILY MEAN THAT SUCH A PLAN IS
IRRATIONAL OR INVOLVES SOMETHING OTHER THAN A "REPUBLICAN FORM OF
GOVERNMENT."  WE CONCLUDE SIMPLY THAT SUCH A PLAN IS IMPERMISSIBLE FOR
THE STATES UNDER THE EQUAL PROTECTION CLAUSE, SINCE PERFORCE RESULTING,
IN VIRTUALLY EVERY CASE, IN SUBMERGENCE OF THE EQUAL-POPULATION
PRINCIPLE IN AT LEAST ONE HOUSE OF A STATE LEGISLATURE. 

SINCE WE FIND THE SO-CALLED FEDERAL ANALOGY INAPPOSITE TO A
CONSIDERATION OF THE CONSTITUTIONAL VALIDITY OF STATE LEGISLATIVE
APPORTIONMENT SCHEMES, WE NECESSARILY HOLD THAT THE EQUAL PROTECTION
CLAUSE REQUIRES BOTH HOUSES OF A STATE LEGISLATURE TO BE APPORTIONED ON
A POPULATION BASIS.  THE RIGHT OF A CITIZEN TO EQUAL REPRESENTATION AND
TO HAVE HIS VOTE WEIGHTED EQUALLY WITH THOSE OF ALL OTHER CITIZENS IN
THE ELECTION OF MEMBERS OF ONE HOUSE OF A BICAMERAL STATE LEGISLATURE
WOULD AMOUNT TO LITTLE IF STATES COULD EFFECTIVELY SUBMERGE THE EQUAL
POPULATION PRINCIPLE IN THE APPORTIONMENT OF SEATS IN THE OTHER HOUSE. 
IF SUCH A SCHEME WERE PERMISSIBLE, AN INDIVIDUAL CITIZEN'S ABILITY TO
EXERCISE AN EFFECTIVE VOICE IN THE ONLY INSTRUMENT OF STATE GOVERNMENT
DIRECTLY REPRESENTATIVE OF THE PEOPLE MIGHT BE ALMOST AS EFFECTIVELY
THWARTED AS IF NEITHER HOUSE WERE APPORTIONED ON A POPULATION BASIS. 
DEADLOCK BETWEEN THE TWO BODIES MIGHT RESULT IN COMPROMISE AND
CONCESSION ON SOME ISSUES.  BUT IN ALL TOO MANY CASES THE MORE PROBABLE
RESULT WOULD BE FRUSTRATION OF THE MAJORITY WILL THROUGH MINORITY VETO
IN THE HOUSE NOT APPORTIONED ON A POPULATION BASIS, STEMMING DIRECTLY
FROM THE FAILURE TO ACCORD ADEQUATE OVERALL LEGISLATIVE REPRESENTATION
TO ALL OF THE STATE'S CITIZENS ON A NONDISCRIMINATORY BASIS.  IN
SUMMARY, WE CAN PERCEIVE NO CONSTITUTIONAL DIFFERENCE, WITH RESPECT TO
THE GEOGRAPHICAL DISTRIBUTION OF STATE LEGISLATIVE REPRESENTATION,
BETWEEN THE TWO HOUSES OF A BICAMERAL STATE LEGISLATURE. 

WE DO NOT BELIEVE THAT THE CONCEPT OF BICAMERALISM IS RENDERED
ANACHRONISTIC AND MEANINGLESS WHEN THE PREDOMINANT BASIS OF
REPRESENTATION IN THE TWO STATE LEGISLATIVE BODIES IS REQUIRED TO BE
THE SAME - POPULATION.  A PRIME REASONS FOR BICAMERALISM, MODERNLY
CONSIDERED, IS TO INSURE MATURE AND DELIBERARATE CONSIDERATION OF, AND
TO PREVENT PRECIPITATE ACTION ON, PROPOSED LEGISLATIVE MEASURES. 
SIMPLY BECAUSE THE CONTROLLING CRITERION FOR APPORTIONING
REPRESENTATION IS REQUIRED TO BE THE SAME IN BOTH HOUSES DOES NOT MEAN
THAT THERE WILL BE NO DIFFERENCES IN THE COMPOSITION AND COMPLEXION OF
THE TWO BODIES.  DIFFERENT CONSTITUENCIES CAN BE REPRESENTED IN THE TWO
HOUSES.  ONE BODY COULD BE COMPOSED OF SINGLE-MEMBER DISTRICTS WHILE
THE OTHER COULD HAVE AT LEAST SOME MULTIMEMBER DISTRICTS.  THE LENGTH
OF TERMS OF THE LEGISLATORS IN THE SEPARATE BODIES COULD DIFFER.  THE
NUMERICAL SIZE OF THE TWO BODIES COULD BE MADE TO DIFFER, EVEN
SIGNIFICANTLY, AND THE GEOGRAPHICAL SIZE OF DISTRICTS FROM WHICH
LEGISLATORS ARE ELECTED COULD ALSO BE MADE TO DIFFER.  AND
APPORTIONMENT IN ONE HOUSE COULD BE ARRANGED SO AS TO BALANCE OFF MINOR
INEQUITIES IN THE REPRESENTATION OF CERTAIN AREAS IN THE OTHER HOUSE. 
IN SUMMARY, THESE AND OTHER FACTORS COULD BE, AND ARE PRESENTLY IN MANY
STATES, UTILIZED TO ENGENDER DIFFERING COMPLEXIONS AND COLLECTIVE
ATTITUDES IN THE TWO BODIES OF A STATE LEGISLATURE, ALTHOUGH BOTH ARE
APPORTIONED SUBSTANTIALLY ON A POPULATION BASIS. 

                                        VI. 

BY HOLDING THAT AS A FEDERAL CONSTITUTIONAL REQUISITE BOTH HOUSES OF
A STATE LEGISLATURE MUST BE APPORTIONED ON A POPULATION BASIS, WE MEAN
THAT THE EQUAL PROTECTION CLAUSE REQUIRES THAT A STATE MAKE AN HONEST
AND GOOD FAITH EFFORT TO CONSTRUCT DISTRICTS, IN BOTH HOUSES OF ITS
LEGISLATURE, AS NEARLY OF EQUAL POPULATION AS IS PRACTICABLE.  WE
REALIZE THAT IT IS A PRACTICAL IMPOSSIBILITY TO ARRANGE LEGISLATIVE
DISTRICTS SO THAT EACH ONE HAS AN IDENTICAL NUMBER OF RESIDENTS, OR
CITIZENS, OR VOTERS.  MATHEMATICAL EXACTNESS OR PRECISION IS HARDLY A
WORKABLE CONSTITUTIONAL REQUIREMENT.  (FN57) 

IN WESBERRY V. SANDERS, SUPRA, THE COURT STATED THAT CONGRESSIONAL
REPRESENTATION MUST BE BASED ON POPULATION AS NEARLY AS IS
PRACTICABLE.  IN IMPLEMENTING THE BASIC CONSTITUTIONAL PRINCIPLE OF
REPRESENTATIVE GOVERNMENT AS ENUNCIATED BY THE COURT IN WESBERRY -
EQUALITY OF POPULATION AMONG DISTRICTS - SOME DISTINCTIONS MAY WELL BE
MADE BETWEEN CONGRESSIONAL AND STATE LEGISLATIVE REPRESENTATION. 
SINCE, ALMOST INVARIABLY, THERE IS A SIGNIFICANTLY LARGER NUMBER OF
SEATS IN STATE LEGISLATIVE BODIES TO BE DISTRIBUTED WITHIN A STATE THAN
CONGRESSIONAL SEATS, IT MAY BE FEASIBLE TO USE POLITICAL SUBDIVISION
LINES TO A GREATER EXTENT IN ESTABLISHING STATE LEGISLATIVE DISTRICTS
THAN IN CONGRESSIONAL DISTRICTING WHILE STILL AFFORDING ADEQUATE
REPRESENTATION TO ALL PARTS OF THE STATE.  TO DO SO WOULD BE
CONSTITUTIONALLY VALID, SO LONG AS THE RESULTING APPORTIONMENT WAS ONE
BASED SUBSTANTIALLY ON POPULATION AND THE EQUAL-POPULATION PRINCIPLE
WAS NOT DILUTED IN ANY SIGNIFICANT WAY.  SOMEWHAT MORE FLEXIBILITY MAY
THEREFORE BE CONSTITUTIONALLY PERMISSIBLE WITH RESPECT TO STATE
LEGISLATIVE APPORTIONMENT THAN IN CONGRESSIONAL DISTRICTING.  LOWER
COURTS CAN AND ASSUREDLY WILL WORK OUT MORE CONCRETE AND SPECIFIC
STANDARDS FOR EVALUATING STATE LEGISLATIVE APPORTIONMENT SCHEMES IN THE
CONTEXT OF ACTUAL LITIGATION.  FOR THE PRESENT, WE DEEM IT EXPEDIENT
NOT TO ATTEMPT TO SPELL OUT ANY PRECISE CONSTITUTIONAL TESTS.  WHAT IS
MARGINALLY PERMISSIBLE IN ONE STATE MAY BE UNSATISFACTORY IN ANOTHER,
DEPENDING ON THE PARTICULAR CIRCUMSTANCES OF THE CASE.  DEVELOPING A
BODY OF DOCTRINE ON A CASE-BY-CASE BASIS APPEARS TO US TO PROVIDE THE
MOST SATISFACTORY MEANS OF ARRIVING AT DETAILED CONSTITUTIONAL
REQUIREMENTS IN THE AREA OF STATE LEGISLATIVE APPORTIONMENT.  CF.
SLAUGHTER-HOUSE CASES, 16 WALL.  36, 78-79.  THUS, WE PROCEED TO STATE
HERE ONLY A FEW RATHER GENERAL CONSIDERATIONS WHICH APPEAR TO US TO BE
RELEVANT. 

A STATE MAY LEGITIMATELY DESIRE TO MAINTAIN THE INTEGRITY OF VARIOUS
POLITICAL SUBDIVISIONS, INSOFAR AS POSSIBLE, AND PROVIDE FOR COMPACT
DISTRICTS OF CONTIGUOUS TERRITORY IN DESIGNING A LEGISLATIVE
APPORTIONMENT SCHEME.  VALID CONSIDERATIONS MAY UNDERLIE SUCH AIMS. 
INDISCRIMINATE DISTRICTING, WITHOUT ANY REGARD FOR POLITICAL
SUBDIVISION OR NATURAL OR HISTORICAL BOUNDARY LINES, MAY BE LITTLE MORE
THAN AN OPEN INVITATION TO PARTISAN GERRYMANDERING.  SINGLE-MEMBER
DISTRICTS MAY BE THE RULE IN ONE STATE, WHILE ANOTHER STATE MIGHT
DESIRE TO ACHIEVE SOME FLEXIBILITY BY CREATING MULTIMEMBER (FN58) OR
FLOTERIAL DISTRICTS.  (FN59)  WHATEVER THE MEANS OF ACCOMPLISHMENT, THE
OVERRIDING OBJECTIVE MUST BE SUBSTANTIAL EQUALITY OF POPULATION AMONG
THE VARIOUS DISTRICTS, SO THAT THE VOTE OF ANY CITIZEN IS APPROXIMATELY
EQUAL IN WEIGHT TO THAT OF ANY OTHER CITIZEN IN THE STATE. 

HISTORY INDICATES, HOWEVER, THAT MANY STATES HAVE DEVIATED, TO A
GREATER OR LESSER DEGREE, FROM THE EQUAL-POPULATION PRINCIPLE IN THE
APPORTIONMENT OF SEATS IN AT LEAST ONE HOUSE OF THEIR LEGISLATURES. 
(FN60)  SO LONG AS THE DIVERGENCES FROM A STRICT POPULATION STANDARD
ARE BASED ON LEGITIMATE CONSIDERATIONS INCIDENT TO THE EFFECTUATION OF
A RATIONAL STATE POLICY, SOME DEVIATIONS FROM THE EQUAL-POPULATION
PRINCIPLE ARE CONSTITUTIONALLY PERMISSIBLE WITH RESPECT TO THE
APPORTIONMENT OF SEATS IN EITHER OR BOTH OF THE TWO HOUSES OF A
BICAMERAL STATE LEGISLATURE.  BUT NEITHER HISTORY ALONE, (FN61) NOR
ECONOMIC OR OTHER SORTS OF GROUP INTERESTS, ARE PERMISSIBLE FACTORS IN
ATTEMPTING TO JUSTIFY DISPARITIES FROM POPULATION-BASED
REPRESENTATION.  CITIZENS, NOT HISTORY OR ECONOMIC INTERESTS, CAST
VOTES.  CONSIDERATIONS OF AREA ALONE PROVIDE AN INSUFFICIENT
JUSTIFICATION FOR DEVIATIONS FROM THE EQUAL-POPULATION PRINCIPLE. 
AGAIN, PEOPLE, NOT LAND OR TREES OR PASTURES, VOTE.  MODERN
DEVELOPMENTS AND IMPROVEMENTS IN TRANSPORTATION AND COMMUNICATIONS MAKE
RATHER HOLLOW, IN THE MID-1960'S, MOST CLAIMS THAT DEVIATIONS FROM
POPULATION-BASED REPRESENTATION CAN VALIDLY BE BASED SOLELY ON
GEOGRAPHICAL CONSIDERATIONS.  ARGUMENTS FOR ALLOWING SUCH DEVIATIONS IN
ORDER TO INSURE EFFECTIVE REPRESENTATION FOR SPARSELY SETTLED AREAS AND
TO PREVENT LEGISLATIVE DISTRICTS FROM BECOMING SO LARGE THAT THE
AVAILABILITY OF ACCESS OF CITIZENS TO THEIR REPRESENTATIVES IS IMPAIRED
ARE TODAY, FOR THE MOST PART, UNCONVINCING. 

A CONSIDERATION THAT APPEARS TO BE OF MORE SUBSTANCE IN JUSTIFYING
SOME DEVIATIONS FROM POPULATION-BASED REPRESENTATION IN STATE
LEGISLATURES IS THAT OF INSURING SOME VOICE TO POLITICAL SUBDIVISIONS,
AS POLITICAL SUBDIVISIONS.  SEVERAL FACTORS MAKE MORE THAN
INSUBSTANTIAL CLAIMS THAT A STATE CAN RATIONALLY CONSIDER ACCORDING
POLITICAL SUBDIVISIONS SOME INDEPENDENT REPRESENTATION IN AT LEAST ONE
BODY OF THE STATE LEGISLATURE, AS LONG AS THE BASIC STANDARD OF
EQUALITY OF POPULATION AMONG DISTRICTS IS MAINTAINED.  LOCAL
GOVERNMENTAL ENTITIES ARE FREQUENTLY CHARGED WITH VARIOUS
RESPONSIBILITIES INCIDENT TO THE OPERATION OF STATE GOVERNMENT.  IN
MANY STATES MUCH OF THE LEGISLATURE'S ACTIVITY INVOLVES THE ENACTMENT
OF SO-CALLED LOCAL LEGISLATION, DIRECTED ONLY TO THE CONCERNS OF
PARTICULAR POLITICAL SUBDIVISIONS.  AND A STATE MAY LEGITIMATELY DESIRE
TO CONSTRUCT DISTRICTS ALONG POLITICAL SUBDIVISION LINES TO DETER THE
POSSIBILITIES OF GERRYMANDERING.  HOWEVER, PERMITTING DEVIATIONS FROM
POPULATION-BASED REPRESENTATION DOES NOT MEAN THAT EACH LOCAL
GOVERNMENTAL UNIT OR POLITICAL SUBDIVISION CAN BE GIVEN SEPARATE
REPRESENTATION, REGARDLESS OF POPULATION.  CARRIED TOO FAR, A SCHEME OF
GIVING AT LEAST ONE SEAT IN ONE HOUSE TO EACH POLITICAL SUBDIVISION
(FOR EXAMPLE, TO EACH COUNTY) COULD EASILY RESULT, IN MANY STATES, IN A
TOTAL SUBVERSION OF THE EQUAL-POPULATION PRINCIPLE IN THAT LEGISLATIVE
BODY.  (FN62)  THIS WOULD BE ESPECIALLY TRUE IN A STATE WHERE THE
NUMBER OF COUNTIES IS LARGE AND MANY OF THEM ARE SPARSELY POPULATED,
AND THE NUMBER OF SEATS IN THE LEGISLATIVE BODY BEING APPORTIONED DOES
NOT SIGNIFICANTLY EXCEED THE NUMBER OF COUNTIES.  (FN63) SUCH A RESULT,
WE CONCLUDE, WOULD BE CONSTITUTIONALLY IMPERMISSIBLE.  AND CAREFUL
JUDICIAL SCRUTINY MUST OF COURSE BE GIVEN, IN EVALUATING STATE
APPORTIONMENT SCHEMES, TO THE CHARACTER AS WELL AS THE DEGREE OF
DEVIATIONS FROM A STRICT POPULATION BASIS.  BUT IF, EVEN AS A RESULT OF
A CLEARLY RATIONAL STATE POLICY OF ACCORDING SOME LEGISLATIVE
REPRESENTATION TO POLITICAL SUBDIVISIONS, POPULATION IS SUBMERGED AS
THE CONTROLLING CONSIDERATION IN THE APPORTIONMENT OF SEATS IN THE
PARTICULAR LEGISLATIVE BODY, THEN THE RIGHT OF ALL OF THE STATE'S
CITIZENS TO CAST AN EFFECTIVE AND ADEQUATELY WEIGHTED VOTE WOULD BE
UNCONSTITUTIONALLY IMPAIRED. 

                           VII. 

ONE OF THE ARGUMENTS FREQUENTLY OFFERED AS A BASIS FOR UPHOLDING A
STATE'S LEGISLATIVE APPORTIONMENT ARRANGEMENT, DESPITE SUBSTANTIAL
DISPARITIES FROM A POPULATION BASIS IN EITHER OR BOTH HOUSES, IS
GROUNDED ON CONGRESSIONAL APPROVAL, INCIDENT TO ADMITTING STATES INTO
THE UNION, OF STATE APPORTIONMENT PLANS CONTAINING DEVIATIONS FROM THE
EQUAL-POPULATION PRINCIPLE.  PROPONENTS OF THIS ARGUMENT CONTEND THAT
CONGRESSIONAL APPROVAL OF SUCH SCHEMES, DESPITE THEIR DISPARITIES FROM
POPULATION-BASED REPRESENTATION, INDICATES THAT SUCH ARRANGEMENTS ARE
PLAINLY SUFFICIENT AS ESTABLISHING A "REPUBLICAN FORM OF GOVERNMENT." 
AS WE STATED IN BAKER V. CARR, SOME QUESTIONS RAISED UNDER THE GUARANTY
CLAUSE ARE NONJUSTICIABLE, WHERE "POLITICAL" IN NATURE AND WHERE THERE
IS A CLEAR ABSENCE OF JUDICIALLY MANAGEABLE STANDARDS.  (FN64)
NEVERTHELESS, IT IS NOT INCONSISTENT WITH THIS VIEW TO HOLD THAT,
DESPITE CONGRESSIONAL APPROVAL OF STATE LEGISLATIVE APPORTIONMENT PLANS
AT THE TIME OF ADMISSION INTO THE UNION, EVEN THOUGH DEVIATING FROM THE
EQUAL-POPULATION PRINCIPLE HERE ENUNCIATED, THE EQUAL PROTECTION CLAUSE
CAN AND DOES REQUIRE MORE.  AND AN APPORTIONMENT SCHEME IN WHICH BOTH
HOUSES ARE BASED ON POPULATION CAN HARDLY BE CONSIDERED AS FAILING TO
SATISFY THE GUARANTY CLAUSE REQUIREMENT.  CONGRESS PRESUMABLY DOES NOT
ASSUME, IN ADMITTING STATES INTO THE UNION, TO PASS ON ALL
CONSTITUTIONAL QUESTIONS RELATING TO THE CHARACTER OF STATE
GOVERNMENTAL ORGANIZATION.  IN ANY EVENT, CONGRESSIONAL APPROVAL,
HOWEVER WELL-CONSIDERED, COULD HARDLY VALIDATE AN UNCONSTITUTIONAL
STATE LEGISLATIVE APPORTIONMENT.  CONGRESS SIMPLY LACKS THE
CONSTITUTIONAL POWER TO INSULATE STATES FROM ATTACK WITH RESPECT TO
ALLEGED DEPRIVATIONS OF INDIVIDUAL CONSTITUTIONAL RIGHTS. 

                   VIII. 

THAT THE EQUAL PROTECTION CLAUSE REQUIRES THAT BOTH HOUSES OF A STATE
LEGISLATURE BE APPORTIONED ON A POPULATION BASIS DOES NOT MEAN THAT
STATES CANNOT ADOPT SOME REASONABLE PLAN FOR PERIODIC REVISION OF THEIR
APPORTIONMENT SCHEMES.  DECENNIAL REAPPORTIONMENT APPEARS TO BE A
RATIONAL APPROACH TO READJUSTMENT OF LEGISLATIVE REPRESENTATION IN
ORDER TO TAKE INTO ACCOUNT POPULATION SHIFTS AND GROWTH.  REALLOCATION
OF LEGISLATIVE SEATS EVERY 10 YEARS COINCIDES WITH THE PRESCRIBED
PRACTICE IN 41 OF THE STATES, (FN65) OFTEN HONORED MORE IN THE BREACH
THAN THE OBSERVANCE, HOWEVER.   ILLUSTRATIVELY, THE ALABAMA
CONSTITUTION REQUIRES DECENNIAL REAPPORTIONMENT, YET THE LAST
REAPPORTIONMENT OF THE ALABAMA LEGISLATURE, WHEN THIS SUIT WAS BROUGHT,
WAS IN 1901.  LIMITATIONS ON THE FREQUENCY OF REAPPORTIONMENT ARE
JUSTIFIED BY THE NEED FOR STABILITY AND CONTINUITY IN THE ORGANIZATION
OF THE LEGISLATIVE SYSTEM, ALTHOUGH UNDOUBTEDLY REAPPORTIONING NO MORE
FREQUENTLY THAN EVERY 10 YEARS LEADS TO SOME IMBALANCE IN THE
POPULATION OF DISTRICTS TOWARD THE END OF THE DECENNIAL PERIOD AND ALSO
TO THE DEVELOPMENT OF RESISTANCE TO CHANGE ON THE PART OF SOME
INCUMBENT LEGISLATORS.  IN SUBSTANCE, WE DO NOT REGARD THE EQUAL
PROTECTION CLAUSE AS REQUIRING DAILY, MONTHLY, ANNUAL OR BIENNIAL
REAPPORTIONMENT, SO LONG AS A STATE HAS A REASONABLY CONCEIVED PLAN FOR
PERIODIC READJUSTMENT OF LEGISLATIVE REPRESENTATION.  WHILE WE DO NOT
INTEND TO INDICATE THAT DECENNIAL REAPPORTIONMENT IS A CONSTITUTIONAL
REQUISITE, COMPLIANCE WITH SUCH AN APPROACH WOULD CLEARLY MEET THE
MINIMAL REQUIREMENTS FOR MAINTAINING A REASONABLY CURRENT SCHEME OF
LEGISLATIVE REPRESENTATION.  AND WE DO NOT MEAN TO INTIMATE THAT MORE
FREQUENT REAPPORTIONMENT WOULD NOT BE CONSTITUTIONALLY PERMISSIBLE OR
PRACTICABLY DESIRABLE.  BUT IF REAPPORTIONMENT WERE ACCOMPLISHED WITH
LESS FREQUENCY, IT WOULD ASSUREDLY BE CONSTITUTIONALLY SUSPECT. 

                            IX. 

ALTHOUGH GENERAL PROVISIONS OF THE ALABAMA CONSTITUTION PROVIDE THAT
THE APPORTIONMENT OF SEATS IN BOTH HOUSES OF THE ALABAMA LEGISLATURE
SHOULD BE ON A POPULATION BASIS, OTHER MORE DETAILED PROVISIONS CLEARLY
MAKE COMPLIANCE WITH BOTH SETS OF REQUIREMENTS IMPOSSIBLE.  WITH
RESPECT TO THE OPERATION OF THE EQUAL PROTECTION CLAUSE, IT MAKES NO
DIFFERENCE WHETHER A STATE'S APPORTIONMENT SCHEME IS EMBODIED IN ITS
CONSTITUTION OR IN STATUTORY PROVISIONS.  IN THOSE STATES WHERE THE
ALLEGED MALAPPORTIONMENT HAS RESULTED FROM NONCOMPLIANCE WITH STATE
CONSTITUTIONAL PROVISIONS WHICH, IF COMPLIED WITH, WOULD RESULT IN AN
APPORTIONMENT VALID UNDER THE EQUAL PROTECTION CLAUSE, THE JUDICIAL
TASK OF PROVIDING EFFECTIVE RELIEF WOULD APPEAR TO BE RATHER SIMPLE. 
WE AGREE WITH THE VIEW OF THE DISTRICT COURT THAT STATE CONSTITUTIONAL
PROVISIONS SHOULD BE DEEMED VIOLATIVE OF THE FEDERAL CONSTITUTION ONLY
WHEN VALIDLY ASSERTED CONSTITUTIONAL RIGHTS COULD NOT OTHERWISE BE
PROTECTED AND EFFECTUATED.  CLEARLY, COURTS SHOULD ATTEMPT TO
ACCOMMODATE THE RELIEF ORDERED TO THE APPORTIONMENT PROVISIONS OF STATE
CONSTITUTIONS INSOFAR AS IS POSSIBLE.  BUT IT IS ALSO QUITE CLEAR THAT
A STATE LEGISLATIVE APPORTIONMENT SCHEME IS NO LESS VIOLATIVE OF THE
FEDERAL CONSTITUTION WHEN IT IS BASED ON STATE CONSTITUTIONAL
PROVISIONS WHICH HAVE BEEN CONSISTENTLY COMPLIED WITH THAN WHEN
RESULTING FROM A NONCOMPLIANCE WITH STATE CONSTITUTIONAL REQUIREMENTS. 
WHEN THERE IS AN UNAVOIDABLE CONFLICT BETWEEN THE FEDERAL AND A STATE
CONSTITUTION, THE SUPREMACY CLAUSE OF COURSE CONTROLS. 

             X. 

WE DO NOT CONSIDER HERE THE DIFFICULT QUESTION OF THE PROPER REMEDIAL
DEVICES WHICH FEDERAL COURTS SHOULD UTILIZE IN STATE LEGISLATIVE
APPORTIONMENT CASES.  (FN66)  REMEDIAL TECHNIQUES IN THIS NEW AND
DEVELOPING AREA OF THE LAW WILL PROBABLY OFTEN DIFFER WITH THE
CIRCUMSTANCES OF THE CHALLENGED APPORTIONMENT AND A VARIETY OF LOCAL
CONDITIONS.  IT IS ENOUGH TO SAY NOW THAT, ONCE A STATE'S LEGISLATIVE
APPORTIONMENT SCHEME HAS BEEN FOUND TO BE UNCONSTITUTIONAL, IT WOULD BE
THE UNUSUAL CASE IN WHICH A COURT WOULD BE JUSTIFIED IN NOT TAKING
APPROPRIATE ACTION TO INSURE THAT NO FURTHER ELECTIONS ARE CONDUCTED
UNDER THE INVALID PLAN.  HOWEVER, UNDER CERTAIN CIRCUMSTANCES, SUCH AS
WHERE AN IMPENDING ELECTION IS IMMINENT AND A STATE'S ELECTION
MACHINERY IS ALREADY IN PROGRESS, EQUITABLE CONSIDERATION MIGHT JUSTIFY
A COURT IN WITHHOLDING THE GRANTING OF IMMEDIATELY EFFECTIVE RELIEF IN
A LEGISLATIVE APPORTIONMENT CASE, EVEN THOUGH THE EXISTING
APPORTIONMENT SCHEME WAS FOUND INVALID.  IN AWARDING OR WITHHOLDING
IMMEDIATE RELIEF, A COURT IS ENTITLED TO AND SHOULD CONSIDER THE
PROXIMITY OF A FORTHCOMING ELECTION AND THE MECHANICS AND COMPLEXITIES
OF STATE ELECTION LAWS, AND SHOULD ACT AND RELY UPON GENERAL EQUITABLE
PRINCIPLES.  WITH RESPECT TO THE TIMING OF RELIEF, A COURT CAN
REASONABLY ENDEAVOR TO AVOID A DISRUPTION OF THE ELECTION PROCESS WHICH
MIGHT RESULT FROM REQUIRING PRECIPITATE CHANGES THAT COULD MAKE
UNREASONABLE OR EMBARRASSING DEMANDS ON A STATE IN ADJUSTING TO THE
REQUIREMENTS OF THE COURT'S DECREE.  AS STATED BY MR. JUSTICE DOUGLAS,
CONCURRING IN BAKER V. CARR, "ANY RELIEF ACCORDED CAN BE FASHIONED IN
THE LIGHT OF WELL-KNOWN PRINCIPLES OF EQUITY."  (FN67) 

WE FEEL THAT THE DISTRICT COURT IN THIS CASE ACTED IN A MOST PROPER
AND COMMENDABLE MANNER.  IT INITIALLY ACTED WISELY IN DECLINING TO STAY
THE IMPENDING PRIMARY ELECTION IN ALABAMA, AND PROPERLY REFRAINED FROM
ACTING FURTHER UNTIL THE ALABAMA LEGISLATURE HAD BEEN GIVEN AN
OPPORTUNITY TO REMEDY THE ADMITTED DISCREPANCIES IN THE STATE'S
LEGISLATIVE APPORTIONMENT SCHEME, WHILE INITIALLY STATING SOME OF ITS
VIEWS TO PROVIDE GUIDELINES FOR LEGISLATIVE ACTION.  AND IT CORRECTLY
RECOGNIZED THAT LEGISLATIVE REAPPORTIONMENT IS PRIMARILY A MATTER FOR
LEGISLATIVE CONSIDERATION AND DETERMINATION, AND THAT JUDICIAL RELIEF
BECOMES APPROPRIATE ONLY WHEN A LEGISLATURE FAILS TO REAPPORTION
ACCORDING TO FEDERAL CONSTITUTIONAL REQUISITES IN A TIMELY FASHION
AFTER HAVING HAD AN ADEQUATE OPPORTUNITY TO DO SO.  ADDITIONALLY, THE
COURT BELOW ACTED WITH PROPER JUDICIAL RESTRAINT, AFTER THE ALABAMA
LEGISLATURE HAD FAILED TO ACT EFFECTIVELY IN REMEDYING THE
CONSTITUTIONAL DEFICIENCIES IN THE STATE LEGISLATIVE APPORTIONMENT
SCHEME, IN ORDERING ITS OWN TEMPORARY REAPPORTIONMENT PLAN INTO EFFECT,
AT A TIME SUFFICIENTLY EARLY TO PERMIT THE HOLDING OF ELECTIONS
PURSUANT TO THAT PLAN WITHOUT GREAT DIFFICULTY, AND IN PRESCRIBING A
PLAN ADMITTEDLY PROVISIONAL IN PURPOSE SO AS NOT TO USURP THE PRIMARY
RESPONSIBILITY FOR REAPPORTIONMENT WHICH RESTS WITH THE LEGISLATURE. 

WE FIND, THEREFORE, THAT THE ACTION TAKEN BY THE DISTRICT COURT IN
THIS CASE, IN ORDERING INTO EFFECT A REAPPORTIONMENT OF BOTH HOUSES OF
THE ALABAMA LEGISLATURE FOR PURPOSES OF THE 1962 PRIMARY AND GENERAL
ELECTIONS, BY USING THE BEST PARTS OF THE TWO PROPOSED PLANS WHICH IT
HAD FOUND, AS A WHOLE, TO BE INVALID, (FN68) WAS AN APPROPRIATE AND
WELL-CONSIDERED EXERCISE OF JUDICIAL POWER.  ADMITTEDLY, THE LOWER
COURT'S ORDERED PLAN WAS INTENDED ONLY AS A TEMPORARY AND PROVISIONAL
MEASURE AND THE DISTRICT COURT CORRECTLY INDICATED THAT THE PLAN WAS
INVALID AS A PERMANENT APPORTIONMENT.  IN RETAINING JURISDICTION WHILE
DEFERRING A HEARING ON THE ISSUANCE OF A FINAL INJUNCTION IN ORDER TO
GIVE THE PROVISIONALLY REAPPORTIONED LEGISLATURE AN OPPORTUNITY TO ACT
EFFECTIVELY, THE COURT BELOW PROCEEDED IN A PROPER FASHION.  SINCE THE
DISTRICT COURT EVINCED ITS REALIZATION THAT ITS ORDERED REAPPORTIONMENT
COULD NOT BE SUSTAINED AS THE BASIS FOR CONDUCTING THE 1966 ELECTION OF
ALABAMA LEGISLATORS, AND AVOWEDLY INTENDS TO TAKE SOME FURTHER ACTION
SHOULD THE REAPPORTIONED ALABAMA LEGISLATURE FAIL TO ENACT A
CONSTITUTIONALLY VALID, PERMANENT APPORTIONMENT SCHEME IN THE INTERIM,
WE AFFIRM THE JUDGMENT BELOW AND REMAND THE CASES FOR FURTHER
PROCEEDINGS CONSISTENT WITH THE VIEWS STATED IN THIS OPINION.  IT IS SO
ORDERED. 

FN1  SIMS V. FRINK, 208 F. SUPP. 431 (D.C.M.D. ALA. 1962).  ALL
DECISIONS OF THE DISTRICT COURT IN THIS LITIGATION ARE REPORTED SUB
NOM. SIMS V. FRINK. 

FN2  INCLUDED AMONG THE DEFENDANTS WERE THE SECRETARY OF STATE AND
THE ATTORNEY GENERAL OF ALABAMA, THE CHAIRMEN AND SECRETARIES OF THE
ALABAMA STATE DEMOCRATIC EXECUTIVE COMMITTEE AND THE STATE REPUBLICAN
EXECUTIVE COMMITTEE, AND THREE JUDGES OF PROBATE OF THREE COUNTIES, AS
REPRESENTATIVES OF ALL THE PROBATE JUDGES OF ALABAMA. 

FN3  PROVISIONS VIRTUALLY IDENTICAL TO THOSE CONTAINED IN ART. IX,
SECS. 202 AND 203, WERE ENACTED INTO THE ALABAMA CODES OF 1907 AND
1923, AND WERE MOST RECENTLY REENACTED AS STATUTORY PROVISIONS IN SECS.
1 AND 2 OF TIT. 32 OF THE 1940 ALABAMA CODE (AS RECOMPILED IN 1958). 

FN4  SEE OPINION OF THE JUSTICES, 263 ALA. 158, 164, 81 SO. 2D 881,
887 (1955), AND OPINION OF THE JUSTICES, 254 ALA. 185, 187, 47 SO. 2D
714, 717 (1950), REFERRED TO BY THE DISTRICT COURT IN ITS PRELIMINARY
OPINION.  205 F. SUPP. 245, 247. 

FN5  SEE EX PARTE RICE, 273 ALA. 712, 143 SO. 2D 848 (1962), WHERE
THE ALABAMA SUPREME COURT, ON MAY 9, 1962, SUBSEQUENT TO THE DISTRICT
COURT'S PRELIMINARY ORDER IN THE INSTANT LITIGATION AS WELL AS OUR
DECISION IN BAKER V. CARR, 369 U.S. 186, REFUSED TO REVIEW A DENIAL OF
INJUNCTIVE RELIEF SOUGHT AGAINST THE CONDUCTING OF THE 1962 PRIMARY
ELECTION UNTIL AFTER REAPPORTIONMENT OF THE ALABAMA LEGISLATURE,
STATING THAT "THIS MATTER IS A LEGISLATIVE FUNCTION, AND  ...  THE
COURT HAS NO JURISDICTION  ...  ."  AND IN WAID V. POOL, 255 ALA. 441,
51 SO. 2D 869 (1951), THE ALABAMA SUPREME COURT, IN A SIMILAR SUIT, HAD
STATED THAT THE LOWER COURT HAD PROPERLY REFUSED TO GRANT INJUNCTIVE
RELIEF BECAUSE "APPELLANTS  ...  ARE SEEKING INTERFERENCE BY THE
JUDICIAL DEPARTMENT OF THE STATE IN RESPECT TO MATTERS COMMITTED BY THE
CONSTITUTION TO THE LEGISLATIVE DEPARTMENT."  255 ALA., AT 442, 51 SO.
2D, AT 870. 

FN6  UNDER 28 U.S.C. SECS. 2281 AND 2284. 

FN7  DURING THE OVER 60 YEARS SINCE THE LAST SUBSTANTIAL
REAPPORTIONMENT IN ALABAMA, THE STATE'S POPULATION INCREASED FROM
1,828,697 TO 3,244,286.  VIRTUALLY ALL OF THE POPULATION GAIN OCCURRED
IN URBAN COUNTIES, AND MANY OF THE RURAL COUNTIES INCURRED SIZABLE
LOSSES IN POPULATION. 

FN8  SEE 369 U.S., AT 260 (CLARK, J., CONCURRING). 

FN9  PROPOSED CONSTITUTIONAL AMENDMENT NO. 1 OF 1962, ALABAMA SENATE
BILL NO. 29, ACT NO. 93, ACTS OF ALABAMA, SPECIAL SESSION, 1962, P.
124.  THE TEXT OF THE PROPOSED AMENDMENT IS SET OUT AS APPENDIX B TO
THE LOWER COURT'S OPINION.  208 F. SUPP., AT 443-444.    FN10  FOR A
DISCUSSION OF THIS METHOD OF APPORTIONMENT, USED IN DISTRIBUTING SEATS
IN THE FEDERAL HOUSE OF REPRESENTATIVES AMONG THE STATES, AND OTHER
COMMONLY USED APPORTIONMENT METHODS, SEE SCHMECKEBIER, THE METHOD OF
EQUAL PROPORTIONS, 17 LAW & CONTEMP.  PROB.  302 (1952). 

FN11  ALABAMA REAPPORTIONMENT ACT OF 1962, ALABAMA HOUSE BILL NO. 59,
ACT NO. 91, ACTS OF ALABAMA, SPECIAL SESSION, 1962, P. 121.  THE TEXT
OF THE ACT IS REPRODUCED AS APPENDIX C TO THE LOWER COURT'S OPINION. 
208 F. SUPP., AT 445-446. 

FN12  A COMPREHENSIVE CHART SHOWING THE REPRESENTATION BY COUNTIES IN
THE ALABAMA HOUSE OF REPRESENTATIVES UNDER THE EXISTING APPORTIONMENT
PROVISIONS IS SET OUT AS APPENDIX D TO THE LOWER COURT'S OPINION.  208
F. SUPP., AT 447-449.  THIS CHART INCLUDES THE NUMBER OF HOUSE SEATS
GIVEN TO EACH COUNTY, AND THE POPULATIONS OF THE 67 ALABAMA COUNTIES
UNDER THE 1900, 1950, AND 1960 CENSUSES. 

FN13  ALTHOUGH CROSS-APPELLANTS IN NO. 27 ASSERT THAT THE ALABAMA
CONSTITUTION FORBIDS THE DIVISION OF A COUNTY, IN FORMING SENATORIAL
DISTRICTS, ONLY WHEN ONE OR BOTH PIECES WILL BE JOINED WITH ANOTHER
COUNTY TO FORM A MULTICOUNTY DISTRICT, THIS VIEW APPEARS TO BE CONTRARY
TO THE LANGUAGE OF ART. IX, SEC. 200, OF THE ALABAMA CONSTITUTION AND
THE PRACTICE UNDER IT.  CROSS-APPELLANTS CONTEND THAT COUNTIES ENTITLED
BY POPULATION TO TWO OR MORE SENATORS CAN BE SPLIT INTO THE APPROPRIATE
NUMBER OF DISTRICTS, AND ARGUE THAT PRIOR TO THE ADOPTION OF THE 1901
PROVISIONS THE ALABAMA CONSTITUTION SO PROVIDED AND THERE IS NO REASON
TO BELIEVE THAT THE LANGUAGE OF THE PRESENT PROVISION WAS INTENDED TO
EFFECT ANY CHANGE.  HOWEVER, THE ONLY APPORTIONMENTS UNDER THE 1901
ALABAMA CONSTITUTION - THE 1901 PROVISIONS AND THE CRAWFORD-WEBB ACT -
GAVE NO MORE THAN ONE SEAT TO A COUNTY EVEN THOUGH BY POPULATION
SEVERAL COUNTIES WOULD HAVE BEEN ENTITLED TO ADDITIONAL SENATORIAL
REPRESENTATION. 

FN14  A CHART SHOWING THE COMPOSITION, BY COUNTIES, OF THE 35
SENATORIAL DISTRICTS PROVIDED FOR UNDER THE EXISTING APPORTIONMENT, AND
THE POPULATION OF EACH ACCORDING TO THE 1900, 1950, AND 1960 CENSUSES,
IS REPRODUCED AS APPENDIX E TO THE LOWER COURT'S OPINION.  208 F.
SUPP., AT 450. 

FN15  208 F. SUPP., AT 437. 

FN16  ID., AT 438. 

FN17  ACCORDING TO THE DISTRICT COURT, IN THE INTERVAL BETWEEN ITS
PRELIMINARY ORDER AND ITS DECISION ON THE MERITS, THE ALABAMA
LEGISLATURE, DESPITE ADOPTING THIS CONSTITUTIONAL AMENDMENT PROPOSAL,
"REFUSED TO INQUIRE OF THE SUPREME COURT OF THE STATE OF ALABAMA
WHETHER THIS PROVISION IN THE CONSTITUTION OF THE STATE OF ALABAMA
COULD BE CHANGED BY CONSTITUTIONAL AMENDMENT AS THE '67-SENATOR
AMENDMENT' PROPOSES."  208 F. SUPP., AT 437. 

FN18  AT LEAST THIS IS THE READING OF THE DISTRICT COURT OF TWO
SOMEWHAT CONFLICTING DECISIONS BY THE ALABAMA SUPREME COURT, RESULTING
IN A "MANIFEST UNCERTAINTY OF THE LEGALITY OF THE PROPOSED
CONSTITUTIONAL AMENDMENT, AS MEASURED BY STATE STANDARDS  ...  ."  208
F. SUPP., AT 438.  COMPARE OPINION OF THE JUSTICES, 254 ALA. 183, 184,
47 SO. 2D 713, 714 (1950), WITH OPINION OF THE JUSTICES, 263 ALA. 158,
164, 81 SO. 2D 881, 887 (1955). 

FN19  SEE THE LATER DISCUSSION, INFRA, AT 568-569, AND NOTE 68,
INFRA, WHERE WE REJECT THE LOWER COURT'S APPARENT CONCLUSION THAT THE
APPORTIONMENT OF THE ALABAMA HOUSE, UNDER THE 67-SENATOR AMENDMENT,
COMPORTED WITH THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE. 

FN20  WHILE NO FORMULA FOR THE STATUTE'S APPORTIONMENT OF
REPRESENTATIVES IS EXPRESSLY STATED, ONE CAN BE EXTRAPOLATED.  COUNTIES
WITH LESS THAN 45,000 PEOPLE ARE GIVEN ONE SEAT; THOSE WITH 45,000 TO
90,000 RECEIVE TWO SEATS; COUNTIES WITH 90,000 TO 150,000, THREE SEATS;
THOSE WITH 150,000 TO 300,000, FOUR SEATS; COUNTIES WITH 300,000 TO
600,000, SIX SEATS; AND COUNTIES WITH OVER 600,000 ARE GIVEN 12 SEATS. 

FN21  APPENDIX F TO THE LOWER COURT'S OPINION SETS OUT A CHART
SHOWING THE POPULATIONS OF THE 35 SENATORIAL DISTRICTS PROVIDED FOR
UNDER THE CRAWFORD-WEBB ACT AND THE COMPOSITION, BY COUNTIES, OF THE
VARIOUS DISTRICTS.  208 F. SUPP., AT 451. 

FN22  CROSS-APPELLANTS IN NO. 27 ASSERT THAT THE CRAWFORD-WEBB ACT
WAS A "MINIMUM-CHANGE MEASURE" WHICH MERELY REDREW NEW SENATORIAL
DISTRICT LINES AROUND THE NOMINEES OF THE MAY 1962 DEMOCRATIC PRIMARY
SO AS TO RETAIN THE SEATS OF 34 OF THE 35 NOMINEES, AND RESULTED, IN
PRACTICAL EFFECT, IN THE SHIFT OF ONLY ONE SENATE SEAT FROM AN
OVERREPRESENTED DISTRICT TO ANOTHER UNDERPOPULATED, NEWLY CREATED
DISTRICT. 

FN23  208 F. SUPP., AT 439. 

FN24  POSSIBLY THIS RESULTED FROM AN UNDERSTANDABLE DESIRE ON THE
PART OF THE ALABAMA LEGISLATURE TO AWAIT A FINAL DETERMINATION BY THIS
COURT IN THE INSTANT LITIGATION BEFORE PROCEEDING TO ENACT A PERMANENT
APPORTIONMENT PLAN. 

FN25  HOWEVER, A PROPOSED CONSTITUTIONAL AMENDMENT, WHICH WOULD HAVE
MADE THE ALABAMA HOUSE OF REPRESENTATIVES SOMEWHAT MORE REPRESENTATIVE
OF POPULATION BUT THE SENATE SUBSTANTIALLY LESS SO, WAS REJECTED BY THE
PEOPLE IN A 1956 REFERENDUM, WITH THE MORE POPULOUS COUNTIES ACCOUNTING
FOR THE DEFEAT. 

SEE THE DISCUSSION IN LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF
COLORADO, POST, PP. 736-737, DECIDED ALSO THIS DATE, WITH RESPECT TO
THE LACK OF FEDERAL CONSTITUTIONAL SIGNIFICANCE OF THE PRESENCE OR
ABSENCE OF AN AVAILABLE POLITICAL REMEDY. 

FN26  ALA. CONST., ART. XVIII, SEC. 284. 

FN27  ALA. CONST., ART. XVIII, SEC. 286. 

FN28  THE FIFTEENTH, SEVENTEENTH, NINETEENTH, TWENTY-THIRD AND TWENTY
FOURTH AMENDMENTS TO THE FEDERAL CONSTITUTION ALL INVOLVE EXPANSIONS OF
THE RIGHT OF SUFFRAGE.  ALSO RELEVANT, IN THIS REGARD, IS THE CIVIL
RIGHTS LEGISLATION ENACTED BY CONGRESS IN 1957 AND 1960. 

FN29  AS STATED BY MR. JUSTICE DOUGLAS, DISSENTING, IN SOUTH V.
PETERS, 339 U.S. 276, 279: 

"THERE IS MORE TO THE RIGHT TO VOTE THAN THE RIGHT TO MARK A PIECE OF
PAPER AND DROP IT IN A BOX OR THE RIGHT TO PULL A LEVER IN A VOTING
BOOTH.  THE RIGHT TO VOTE INCLUDES THE RIGHT TO HAVE THE BALLOT COUNTED
...  .  IT ALSO INCLUDES THE RIGHT TO HAVE THE VOTE COUNTED AT FULL
VALUE WITHOUT DILUTION OR DISCOUNT  ...  .  THAT FEDERALLY PROTECTED
RIGHT SUFFERS SUBSTANTIAL DILUTION  ... WHERE A FAVORED GROUP HAS FULL
VOTING STRENGTH  ...  AND THE GROUPS NOT IN FAVOR HAVE THEIR VOTES
DISCOUNTED." 

FN30  LITIGATION CHALLENGING THE CONSTITUTIONALITY OF STATE
LEGISLATIVE APPORTIONMENT SCHEMES HAD BEEN INSTITUTED IN AT LEAST 34
STATES PRIOR TO THE END OF 1962 - WITHIN NINE MONTHS OF OUR DECISION IN
BAKER V. CARR.  SEE MCKAY, POLITICAL THICKETS AND CRAZY QUILTS:
REAPPORTIONMENT AND EQUAL PROTECTION, 61 MICH. L. REV. 645, 706-710
(1963), WHICH CONTAINS AN APPENDIX SUMMARIZING REAPPORTIONMENT
LITIGATION THROUGH THE END OF 1962.  SEE ALSO DAVID AND EISENBERG,
DEVALUATION OF THE URBAN AND SUBURBAN VOTE (1961); GOLDBERG, THE
STATISTICS OF MALAPPORTIONMENT, 72 YALE L.J. 90 (1962). 

FN31  369 U.S., AT 198. 

FN32  ID., AT 226. 

FN33  SCHOLLE V. HARE, 369 U.S. 429 (MICHIGAN); WMCA, INC., V. SIMON,
370 U.S. 190 (NEW YORK). 

FN34  372 U.S., AT 379-380. 

FN35  ID., AT 381. 

FN36  ID., AT 376.  LATER IN THE OPINION WE AGAIN STATED: 

"NOR DOES THE QUESTION HERE HAVE ANYTHING TO DO WITH THE COMPOSITION
OF THE STATE OR FEDERAL LEGISLATURE.  AND WE INTIMATE NO OPINION ON THE
CONSTITUTIONAL PHASES OF THAT PROBLEM BEYOND WHAT WE SAID IN BAKER V.
CARR  ...  ."  ID., AT 378. 

FN37  376 U.S., AT 14. 

FN38  ID., AT 17-18. 

FN39  AS STATED BY MR. JUSTICE DOUGLAS, THE RIGHTS SOUGHT TO BE
VINDICATED IN A SUIT CHALLENGING AN APPORTIONMENT SCHEME ARE "PERSONAL
AND INDIVIDUAL," SOUTH V. PETERS, 339 U.S., AT 280, AND ARE "IMPORTANT
POLITICAL RIGHTS OF THE PEOPLE," MACDOUGALL V. GREEN, 335 U.S. 281,
288.  (DOUGLAS, J., DISSENTING.) 

FN40  AS STATED BY MR. JUSTICE BLACK, DISSENTING, IN COLEGROVE V.
GREEN, 328 U.S. 549, 569-571: 

"NO ONE WOULD DENY THAT THE EQUAL PROTECTION CLAUSE WOULD  ...
PROHIBIT A LAW THAT WOULD EXPRESSLY GIVE CERTAIN CITIZENS A HALF-VOTE
AND OTHERS A FULL VOTE  ...  .  THE CONSTITUTIONALLY GUARANTEED RIGHT
TO VOTE AND THE RIGHT TO HAVE ONE'S VOTE COUNTED CLEARLY IMPLY THE
POLICY THAT STATE ELECTION SYSTEMS, NO MATTER WHAT THEIR FORM, SHOULD
BE DESIGNED TO GIVE APPROXIMATELY EQUAL WEIGHT TO EACH VOTE CAST  ...
.  A STATE LEGISLATURE CANNOT DENY ELIGIBLE VOTERS THE RIGHT TO VOTE
FOR CONGRESSMEN AND THE RIGHT TO HAVE THEIR VOTE COUNTED.  IT CAN NO
MORE DESTROY THE EFFECTIVENESS OF THEIR VOTE IN PART AND NO MORE
ACCOMPLISH THIS IN THE NAME OF 'APPORTIONMENT' THAN UNDER ANY OTHER
NAME." 

FN41  376 U.S., AT 8.  SEE ALSO ID., AT 17, QUOTING FROM JAMES
WILSON, A DELEGATE TO THE CONSTITUTIONAL CONVENTION AND LATER AN
ASSOCIATE JUSTICE OF THIS COURT, WHO STATED: 

"ALL ELECTIONS OUGHT TO BE EQUAL.  ELECTIONS ARE EQUAL, WHEN A GIVEN
NUMBER OF CITIZENS, IN ONE PART OF THE STATE, CHOOSE AS MANY
REPRESENTATIVES, AS ARE CHOSEN BY THE SAME NUMBER OF CITIZENS, IN ANY
OTHER PART OF THE STATE.  IN THIS MANNER, THE PROPORTION OF THE
REPRESENTATIVES AND OF THE CONSTITUENTS WILL REMAIN INVARIABLY THE
SAME."  2 THE WORKS OF JAMES WILSON (ANDREWS ED. 1896) 15. 

AND, AS STATED BY MR. JUSTICE DOUGLAS, DISSENTING, IN MACDOUGALL V.
GREEN, 335 U.S., AT 288, 290: 

"A REGULATION  ...  WHICH DISCRIMINATES AGAINST THE RESIDENTS OF THE
POPULOUS COUNTIES OF THE STATE IN FAVOR OF RURAL SECTIONS  ...  LACKS
THE EQUALITY TO WHICH THE EXERCISE OF POLITICAL RIGHTS IS ENTITLED
UNDER THE FOURTEENTH AMENDMENT. 

"FREE AND HONEST ELECTIONS ARE THE VERY FOUNDATION OF OUR REPUBLICAN
FORM OF GOVERNMENT  ...  . DISCRIMINATION AGAINST ANY GROUP OR CLASS OF
CITIZENS IN THE EXERCISE OF THESE CONSTITUTIONALLY PROTECTED RIGHTS OF
CITIZENSHIP DEPRIVES THE ELECTORAL PROCESS OF INTEGRITY  ...  . 

"NONE WOULD DENY THAT A STATE LAW GIVING SOME CITIZENS TWICE THE VOTE
OF OTHER CITIZENS IN EITHER THE PRIMARY OR GENERAL ELECTION WOULD LACK
THAT EQUALITY WHICH THE FOURTEENTH AMENDMENT GUARANTEES ...  .  THE
THEME OF THE CONSTITUTION IS EQUALITY AMONG CITIZENS IN THE EXERCISE OF
THEIR POLITICAL RIGHTS.  THE NOTION THAT ONE GROUP CAN BE GRANTED
GREATER VOTING STRENGTH THAN ANOTHER IS HOSTILE TO OUR STANDARDS FOR
POPULAR REPRESENTATIVE GOVERNMENT." 

FN42  364 U.S., AT 347. 

FN43  ALTHOUGH LEGISLATIVE APPORTIONMENT CONTROVERSIES ARE GENERALLY
VIEWED AS INVOLVING URBAN-RURAL CONFLICTS, MUCH EVIDENCE INDICATES THAT
PRESENTLY IT IS THE FAST-GROWING SUBURBAN AREAS WHICH ARE PROBABLY THE
MOST SERIOUSLY UNDERREPRESENTED IN MANY OF OUR STATE LEGISLATURES. 
AND, WHILE CURRENTLY THE THRUST OF STATE LEGISLATIVE MALAPPORTIONMENT
RESULTS, IN MOST STATES, IN UNDERREPRESENTATION OF URBAN AND SUBURBAN
AREAS, IN EARLIER TIMES CITIES WERE IN FACT OVERREPRESENTED IN A NUMBER
OF STATES.  IN THE EARLY 19TH CENTURY, CERTAIN OF THE SEABOARD CITIES
IN SOME OF THE EASTERN AND SOUTHERN STATES POSSESSED AND STRUGGLED TO
RETAIN LEGISLATIVE REPRESENTATION DISPROPORTIONATE TO POPULATION, AND
BITTERLY OPPOSED ACCORDING ADDITIONAL REPRESENTATION TO THE GROWING
INLAND AREAS.  CONCEIVABLY, IN SOME FUTURE TIME, URBAN AREAS MIGHT
AGAIN BE IN A SITUATION OF ATTEMPTING TO ACQUIRE OR RETAIN LEGISLATIVE
REPRESENTATION IN EXCESS OF THAT TO WHICH, ON A POPULATION BASIS, THEY
ARE ENTITLED.  MALAPPORTIONMENT CAN, AND HAS HISTORICALLY, RUN IN
VARIOUS DIRECTIONS.  HOWEVER AND WHENEVER IT DOES, IT IS
CONSTITUTIONALLY IMPERMISSIBLE UNDER THE EQUAL PROTECTION CLAUSE. 

FN44  THE BRITISH EXPERIENCE IN ERADICATING "ROTTEN BOROUGHS" IS
INTERESTING AND ENLIGHTENING.  PARLIAMENTARY REPRESENTATION IS NOW
BASED ON DISTRICTS OF SUBSTANTIALLY EQUAL POPULATION, AND PERIODIC
REAPPORTIONMENT IS ACCOMPLISHED THROUGH INDEPENDENT BOUNDARY
COMMISSIONS.  FOR A DISCUSSION OF THE EXPERIENCE AND DIFFICULTIES IN
GREAT BRITAIN IN ACHIEVING FAIR LEGISLATIVE REPRESENTATION, SEE
EDWARDS, THEORETICAL AND COMPARATIVE ASPECTS OF REAPPORTIONMENT AND
REDISTRICTING:  WITH REFERENCE TO BAKER V. CARR, 15 VAND.  L. REV.
1265, 1275 (1962).  SEE ALSO THE DISCUSSION IN BAKER V. CARR, 369 U.S.,
AT 302-307.  (FRANKFURTER, J., DISSENTING.) 

FN45  UNDER THE EXISTING SCHEME, MARSHALL COUNTY, WITH A 1960
POPULATION OF 48,018, BALDWIN COUNTY, WITH 49,088, AND HOUSTON COUNTY,
WITH 50,718, ARE EACH GIVEN ONLY ONE SEAT IN THE ALABAMA HOUSE, WHILE
BULLOCK COUNTY, WITH ONLY 13,462, HENRY COUNTY, WITH 15,286, AND LONDES
COUNTY, WITH 15,417, ARE ALLOTTED TWO REPRESENTATIVES EACH.  AND IN THE
ALABAMA SENATE, UNDER THE EXISTING APPORTIONMENT, A DISTRICT COMPRISING
LAUDERDALE AND LIMESTONE COUNTIES HAD A 1960 POPULATION OF 98,135, AND
ANOTHER COMPOSED OF LEE AND RUSSELL COUNTIES HAD 96,105.  CONVERSELY,
LOWNDES COUNTY, WITH ONLY 15,417, AND WILCOX COUNTY, WITH 18,739, ARE
NEVERTHELESS SINGLE-COUNTY SENATORIAL DISTRICTS GIVEN ONE SENATE SEAT
EACH. 

FN46  AN INTERESTING PRE-BAKER DISCUSSION OF THE PROBLEM OF
LEGISLATIVE MALAPPORTIONMENT IN ALABAMA IS PROVIDED IN COMMENT,
ALABAMA'S UNREPRESENTATIVE LEGISLATURE, 14 ALA. L. REV. 403 (1962). 

FN47  SEE THE CASES CITED AND DISCUSSED IN NOTES 4-5, SUPRA, WHERE
THE ALABAMA SUPREME COURT REFUSED EVEN TO CONSIDER THE GRANTING OF
RELIEF IN SUITS CHALLENGING THE VALIDITY OF THE APPORTIONMENT OF SEATS
IN THE ALABAMA LEGISLATURE, ALTHOUGH IT STATED THAT THE LEGISLATURE HAD
FAILED TO COMPLY WITH THE REQUIREMENTS OF THE STATE CONSTITUTION WITH
RESPECT TO LEGISLATIVE REAPPORTIONMENT. 

FN48  HOWEVER, SINCE THE DISTRICT COURT FOUND THE PROPOSED
CONSTITUTIONAL AMENDMENT PROSPECTIVELY INVALID, IT WAS NEVER IN FACT
VOTED UPON BY THE STATE'S ELECTORATE. 

FN49  RESEMBLANCES BETWEEN THE SYSTEM OF REPRESENTATION IN THE
FEDERAL CONGRESS AND THE APPORTIONMENT SCHEME EMBODIED IN THE 67
SENATOR AMENDMENT APPEAR TO BE MORE SUPERFICIAL THAN ACTUAL. 
REPRESENTATION IN THE FEDERAL HOUSE OF REPRESENTATIVES IS APPORTIONED
BY THE CONSTITUTION AMONG THE STATES IN CONFORMITY WITH POPULATION. 
WHILE EACH STATE IS GUARANTEED AT LEAST ONE SEAT IN THE HOUSE, AS A
FEATURE OF OUR UNIQUE FEDERAL SYSTEM, ONLY FOUR STATES HAVE LESS THAN
1/435 OF THE COUNTRY'S TOTAL POPULATION, UNDER THE 1960 CENSUS.  THUS,
ONLY FOUR SEATS IN THE FEDERAL HOUSE ARE DISTRIBUTED ON A BASIS OTHER
THAN STRICT POPULATION.  IN ALABAMA, ON THE OTHER HAND, 40 OF THE 67
COUNTIES HAVE LESS THAN 1/106 OF THE STATE'S TOTAL POPULATION.  THUS,
UNDER THE PROPOSED AMENDMENT, OVER 1/3 OF THE TOTAL NUMBER OF SEATS IN
THE ALABAMA HOUSE WOULD BE DISTRIBUTED ON A BASIS OTHER THAN STRICT
POPULATION.  STATES WITH ALMOST 50% OF THE NATION'S TOTAL POPULATION
ARE REQUIRED IN ORDER TO ELECT A MAJORITY OF THE MEMBERS OF THE FEDERAL
HOUSE, THOUGH UNFAIR DISTRICTING WITHIN SOME OF THE STATES PRESENTLY
REDUCES TO ABOUT 42% THE PERCENTAGE OF THE COUNTRY'S POPULATION WHICH
RESIDE IN DISTRICTS ELECTING INDIVIDUALS COMPRISING A MAJORITY IN THE
FEDERAL HOUSE.  CF. WESBERRY V. SANDERS, SUPRA, HOLDING SUCH
CONGRESSIONAL DISTRICTING UNCONSTITUTIONAL.  ONLY ABOUT 43% OF THE
POPULATION OF ALABAMA WOULD LIVE IN DISTRICTS WHICH COULD ELECT A
MAJORITY IN THE ALABAMA HOUSE, UNDER THE PROPOSED CONSTITUTIONAL
AMENDMENT.  THUS, IT COULD HARDLY BE ARGUED THAT THE PROPOSED
APPORTIONMENT OF THE ALABAMA HOUSE WAS BASED ON POPULATION IN A WAY
COMPARABLE TO THE APPORTIONMENT OF SEATS IN THE FEDERAL HOUSE AMONG THE
STATES. 

FN50 FOR A THOROUGH STATEMENT OF THE ARGUMENTS AGAINST HOLDING THE SO
CALLED FEDERAL ANALOGY APPLICABLE TO STATE LEGISLATIVE APPORTIONMENT
MATTERS, SEE, E.G., MCKAY, REAPPORTIONMENT AND THE FEDERAL ANALOGY
(NATIONAL MUNICIPAL LEAGUE PAMPHLET 1962); MCKAY, THE FEDERAL ANALOGY
AND STATE APPORTIONMENT STANDARDS, 38 NOTRE DAME LAW.  487 (1963).  SEE
ALSO MERRILL, BLAZES FOR A TRAIL THROUGH THE THICKET OF
REAPPORTIONMENT, 16 OKLA. L. REV. 59, 67-70 (1963). 

FN51  208 F. SUPP., AT 438.  SEE THE DISCUSSION OF THE DISTRICT
COURT'S HOLDING AS TO THE APPLICABILITY OF THE FEDERAL ANALOGY EARLIER
IN THIS OPINION, SUPRA, AT 547-548. 

FN52  REPORT OF ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS,
APPORTIONMENT OF STATE LEGISLATURES 10-11, 35, 69 (1962). 

FN53  THOMAS JEFFERSON REPEATEDLY DENOUNCED THE INEQUALITY OF
REPRESENTATION PROVIDED FOR UNDER THE 1776 VIRGINIA CONSTITUTION AND
FREQUENTLY PROPOSED CHANGING THE STATE CONSTITUTION TO PROVIDE THAT
BOTH HOUSES BE APPORTIONED ON THE BASIS OF POPULATION.  IN 1816 HE
WROTE THAT "A GOVERNMENT IS REPUBLICAN IN PROPORTION AS EVERY MEMBER
COMPOSING IT HAS HIS EQUAL VOICE IN THE DIRECTION OF ITS CONCERNS  ...
BY REPRESENTATIVES CHOSEN BY HIMSELF  ...  ."  LETTER TO SAMUEL
KERCHEVAL, 10 WRITINGS OF THOMAS JEFFERSON (FORD ED. 1899) 38.  AND A
FEW YEARS LATER, IN 1819, HE STATED:  "EQUAL REPRESENTATION IS SO
FUNDAMENTAL A PRINCIPLE IN A TRUE REPUBLIC THAT NO PREJUDICE CAN
JUSTIFY ITS VIOLATION BECAUSE THE PREJUDICES THEMSELVES CANNOT BE
JUSTIFIED."  LETTER TO WILLIAM KING, JEFFERSON PAPERS, LIBRARY OF
CONGRESS, VOL. 216, P. 38616. 

FN54  ARTICLE II, SEC. 14, OF THE NORTHWEST ORDINANCE OF 1787 STATED
QUITE SPECIFICALLY: "THE INHABITANTS OF THE SAID TERRITORY SHALL ALWAYS
BE ENTITLED TO THE BENEFITS  ...  OF A PROPORTIONATE REPRESENTATION OF
THE PEOPLE IN THE LEGISLATURE." 

FN55  SEE THE DISCUSSION IN WESBERRY V. SANDERS, 376 U.S., AT 9-14. 

FN56  372 U.S., AT 378. 

FN57  AS STATED BY THE COURT IN BAIN PEANUT CO. V. PINSON, 282 U.S.
499, 501, "WE MUST REMEMBER THAT THE MACHINERY OF GOVERNMENT WOULD NOT
WORK IF IT WERE NOT ALLOWED A LITTLE PLAY IN ITS JOINTS." 

FN58  BUT CF. THE DISCUSSION OF SOME OF THE PRACTICAL PROBLEMS
INHERENT IN THE USE OF MULTIMEMBER DISTRICTS IN LUCAS V. FORTY-FOURTH
GENERAL ASSEMBLY OF COLORADO, POST, PP. 731-732, DECIDED ALSO THIS
DATE. 

FN59  SEE THE DISCUSSION OF THE CONCEPT OF FLOTERIAL DISTRICTS IN
DAVIS V. MANN, POST, PP. 686-687, N. 2, DECIDED ALSO THIS DATE. 

FN60  FOR A DISCUSSION OF THE FORMAL APPORTIONMENT FORMULAE
PRESCRIBED FOR THE ALLOCATION OF SEATS IN STATE LEGISLATURES, SEE
DIXON, APPORTIONMENT STANDARDS AND JUDICIAL POWER, 38 NOTRE DAME LAW. 
367, 398-400 (1963).  SEE ALSO THE BOOK OF THE STATES 1962-1963, 58
62. 

FN61  IN REJECTING A SUGGESTION THAT THE REPRESENTATION OF THE NEWER
WESTERN STATES IN CONGRESS SHOULD BE LIMITED SO THAT IT WOULD NEVER
EXCEED THAT OF THE ORIGINAL STATES, THE CONSTITUTIONAL CONVENTION
PLAINLY INDICATED ITS VIEW THAT HISTORY ALONE PROVIDED AN
UNSATISFACTORY BASIS FOR DIFFERENTIATIONS RELATING TO LEGISLATIVE
REPRESENTATION.  SEE WESBERRY V. SANDERS, 376 U.S., AT 14.  INSTEAD,
THE NORTHWEST ORDINANCE OF 1787, IN EXPLICITLY PROVIDING FOR POPULATION
BASED REPRESENTATION OF THOSE LIVING IN THE NORTHWEST TERRITORY IN
THEIR TERRITORIAL LEGISLATURES, CLEARLY IMPLIED THAT, AS EARLY AS THE
YEAR OF THE BIRTH OF OUR FEDERAL SYSTEM, THE PROPER BASIS OF
LEGISLATIVE REPRESENTATION WAS REGARDED AS BEING POPULATION. 

FN62  SEE MCKAY, POLITICAL THICKETS AND CRAZY QUILTS:
REAPPORTIONMENT AND EQUAL PROTECTION, 61 MICH. L. REV. 645, 698-699
(1963). 

FN63  DETERMINING THE SIZE OF ITS LEGISLATIVE BODIES IS OF COURSE A
MATTER WITHIN THE DISCRETION OF EACH INDIVIDUAL STATE.  NOTHING IN THIS
OPINION SHOULD BE READ AS INDICATING THAT THERE ARE ANY FEDERAL
CONSTITUTIONAL MAXIMUMS OR MINIMUMS ON THE SIZE OF STATE LEGISLATIVE
BODIES. 

FN64  SEE 369 U.S., AT 217-232, DISCUSSING THE NONJUSTICIABILITY OF
MALAPPORTIONMENT CLAIMS ASSERTED UNDER THE GUARANTY CLAUSE. 

FN65  REPORT OF ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS,
APPORTIONMENT OF STATE LEGISLATURES 56 (1962).  ADDITIONALLY, THE
CONSTITUTIONS OF SEVEN OTHER STATES EITHER REQUIRE OR PERMIT
REAPPORTIONMENT OF LEGISLATIVE REPRESENTATION MORE FREQUENTLY THAN
EVERY 10 YEARS.  SEE ALSO THE BOOK OF THE STATES 1962-1963, 58-62. 

FN66  CF. BAKER V. CARR, 369 U.S. 186, 198.  SEE ALSO 369 U.S., AT
250-251 (DOUGLAS, J., CONCURRING), AND PASSAGES FROM BAKER QUOTED IN
THIS OPINION, SUPRA, AT 556, 557, AND INFRA. 

FN67  369 U.S., AT 250. 

FN68 ALTHOUGH THE DISTRICT COURT INDICATED THAT THE APPORTIONMENT OF
THE ALABAMA HOUSE UNDER THE 67-SENATOR AMENDMENT WAS VALID AND
ACCEPTABLE, WE OF COURSE REJECT THAT DETERMINATION, WHICH WE REGARD AS
MERELY PRECATORY AND ADVISORY SINCE THE COURT BELOW FOUND THE OVERALL
PLAN, UNDER THE PROPOSED CONSTITUTIONAL AMENDMENT, TO BE
UNCONSTITUTIONAL.  SEE 208 F. SUPP., AT 440-441.  SEE THE DISCUSSION
EARLIER IN THIS OPINION, SUPRA, AT 568-569. 

MR. JUSTICE CLARK, CONCURRING IN THE AFFIRMANCE. 

THE COURT GOES MUCH BEYOND THE NECESSITIES OF THIS CASE IN LAYING
DOWN A NEW "EQUAL POPULATION" PRINCIPLE FOR STATE LEGISLATIVE
APPORTIONMENT.  THIS PRINCIPLE SEEMS TO BE AN OFFSHOOT OF GRAY V.
SANDERS, 372 U.S. 368, 381 (1963), I.E., "ONE PERSON, ONE VOTE,"
MODIFIED BY THE "NEARLY AS IS PRACTICABLE" ADMONITION OF WESBERRY V.
SANDERS, 376 U.S. 1, 8 (1964).*  WHETHER "NEARLY AS IS PRACTICABLE"
MEANS "ONE PERSON, ONE VOTE" QUALIFIED BY "APPROXIMATELY EQUAL" OR
"SOME DEVIATIONS" OR BY THE IMPOSSIBILITY OF "MATHEMATICAL NICETY" IS
NOT CLEAR FROM THE MAJORITY'S USE OF THESE VAGUE AND MEANINGLESS
PHRASES.  BUT WHATEVER THE STANDARD, THE COURT APPLIES IT TO EACH HOUSE
OF THE STATE LEGISLATURE. 

*INCIDENTALLY, NEITHER OF THESE CASES, UPON WHICH THE COURT BASES ITS
OPINION, IS APPOSITE.  GRAY INVOLVED THE USE OF GEORGIA'S COUNTY UNIT
RULE IN THE ELECTION OF UNITED STATES SENATORS AND WESBERRY WAS A
CONGRESSIONAL APPORTIONMENT CASE. 

IT SEEMS TO ME THAT ALL THAT THE COURT NEED SAY IN THIS CASE IS THAT
EACH PLAN CONSIDERED BY THE TRIAL COURT IS "A CRAZY QUILT," CLEARLY
REVEALING INVIDIOUS DISCRIMINATION IN EACH HOUSE OF THE LEGISLATURE AND
THEREFORE VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.  SEE MY CONCURRING
OPINION IN BAKER V. CARR, 369 U.S. 186, 253-258 (1962). 

I, THEREFORE, DO NOT REACH THE QUESTION OF THE SO-CALLED "FEDERAL
ANALOGY."  BUT IN MY VIEW, IF ONE HOUSE OF THE STATE LEGISLATURE MEETS
THE POPULATION STANDARD, REPRESENTATION IN THE OTHER HOUSE MIGHT
INCLUDE SOME DEPARTURE FROM IT SO AS TO TAKE INTO ACCOUNT, ON A
RATIONAL BASIS, OTHER FACTORS IN ORDER TO AFFORD SOME REPRESENTATION TO
THE VARIOUS ELEMENTS OF THE STATE.  SEE MY DISSENTING OPINION IN LUCAS
V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, POST, P. 741, DECIDED
THIS DATE. 

MR. JUSTICE STEWART. 

ALL OF THE PARTIES HAVE AGREED WITH THE DISTRICT COURT'S FINDING THAT
LEGISLATIVE INACTION FOR SOME 60 YEARS IN THE FACE OF GROWTH AND SHIFTS
IN POPULATION HAS CONVERTED ALABAMA'S LEGISLATIVE APPORTIONMENT PLAN
ENACTED IN 1901 INTO ONE COMPLETELY LACKING IN RATIONALITY. 
ACCORDINGLY, FOR THE REASONS STATED IN MY DISSENTING OPINION IN LUCAS
V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, POST, P. 744, I WOULD
AFFIRM THE JUDGMENT OF THE DISTRICT COURT HOLDING THAT THIS
APPORTIONMENT VIOLATED THE EQUAL PROTECTION CLAUSE. 

I ALSO AGREE WITH THE COURT THAT IT WAS PROPER FOR THE DISTRICT
COURT, IN FRAMING A REMEDY, TO ADHERE AS CLOSELY AS PRACTICABLE TO THE
APPORTIONMENTS APPROVED BY THE REPRESENTATIVES OF THE PEOPLE OF
ALABAMA, AND TO AFFORD THE STATE OF ALABAMA FULL OPPORTUNITY,
CONSISTENT WITH THE REQUIREMENTS OF THE FEDERAL CONSTITUTION, TO DEVISE
ITS OWN SYSTEM OF LEGISLATIVE APPORTIONMENT. 

MR. JUSTICE HARLAN, DISSENTING.* 

* THIS OPINION APPLIES ALSO TO NO. 20, WMCA, INC., ET AL. V. LOMENZO,
SECRETARY OF STATE OF NEW YORK, ET AL., POST, P. 633; NO. 29, MARYLAND
COMMITTEE FOR FAIR REPRESENTATION ET AL. V. TAWES, GOVERNOR, ET AL.,
POST, P. 656; NO. 69, DAVIS, SECRETARY, STATE BOARD OF ELECTIONS, ET
AL. V. MANN, ET AL., POST, P. 678; NO. 307, ROMAN, CLERK, ET AL. V.
SINCOCK ET AL., POST, P. 695; AND NO. 508, LUCAS ET AL. V. FORTY-FOURTH
GENERAL ASSEMBLY OF COLORADO ET AL., POST, P. 713. 

IN THESE CASES THE COURT HOLDS THAT SEATS IN THE LEGISLATURES OF SIX
STATES (FN1) ARE APPORTIONED IN WAYS THAT VIOLATE THE FEDERAL
CONSTITUTION.  UNDER THE COURT'S RULING IT IS BOUND TO FOLLOW THAT THE
LEGISLATURES IN ALL BUT A FEW OF THE OTHER 44 STATES WILL MEET THE SAME
FATE.  (FN2)  THESE DECISIONS, WITH WESBERRY V. SANDERS, 376 U.S. 1,
INVOLVING CONGRESSIONAL DISTRICTING BY THE STATES, AND GRAY V. SANDERS,
372 U.S. 368, RELATING TO ELECTIONS FOR STATEWIDE OFFICE, HAVE THE
EFFECT OF PLACING BASIC ASPECTS OF STATE POLITICAL SYSTEMS UNDER THE
PERVASIVE OVERLORDSHIP OF THE FEDERAL JUDICIARY.  ONCE AGAIN, (FN3) I
MUST REGISTER MY PROTEST. 

                                   PRELIMINARY STATEMENT. 

TODAY'S HOLDING IS THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT REQUIRES EVERY STATE TO STRUCTURE ITS LEGISLATURE SO THAT ALL
THE MEMBERS OF EACH HOUSE REPRESENT SUBSTANTIALLY THE SAME NUMBER OF
PEOPLE; OTHER FACTORS MAY BE GIVEN PLAY ONLY TO THE EXTENT THAT THEY DO
NOT SIGNIFICANTLY ENCROACH ON THIS BASIC "POPULATION" PRINCIPLE. 
WHATEVER MAY BE THOUGHT OF THIS HOLDING AS A PIECE OF POLITICAL
IDEOLOGY - AND EVEN ON THAT SCORE THE POLITICAL HISTORY AND PRACTICES
OF THIS COUNTRY FROM ITS EARLIEST BEGINNINGS LEAVE WIDE ROOM FOR DEBATE
(SEE THE DISSENTING OPINION OF FRANKFURTER, J., IN BAKER V. CARR, 369
U.S. 186, 266, 301-323) - I THINK IT DEMONSTRABLE THAT THE FOURTEENTH
AMENDMENT DOES NOT IMPOSE THIS POLITICAL TENET ON THE STATES OR
AUTHORIZE THIS COURT TO DO SO. 

THE COURT'S CONSTITUTIONAL DISCUSSION, FOUND IN ITS OPINION IN THE
ALABAMA CASES (NOS. 23, 27, 41, ANTE, P. 533) AND MORE PARTICULARLY AT
PAGES 561-568 THEREOF, IS REMARKABLE (AS, INDEED, IS THAT FOUND IN THE
SEPARATE OPINIONS OF MY BROTHERS STEWART AND CLARK, ANTE, PP. 588, 587)
FOR ITS FAILURE TO ADDRESS ITSELF AT ALL TO THE FOURTEENTH AMENDMENT AS
A WHOLE OR TO THE LEGISLATIVE HISTORY OF THE AMENDMENT PERTINENT TO THE
MATTER AT HAND.  STRIPPED OF APHORISMS, THE COURT'S ARGUMENT BOILS DOWN
TO THE ASSERTION THAT APPELLEES' RIGHT TO VOTE HAS BEEN INVIDIOUSLY
"DEBASED" OR "DILUTED" BY SYSTEMS OF APPORTIONMENT WHICH ENTITLE THEM
TO VOTE FOR FEWER LEGISLATORS THAN OTHER VOTERS, AN ASSERTION WHICH IS
TIED TO THE EQUAL PROTECTION CLAUSE ONLY BY THE CONSTITUTIONALLY FRAIL
TAUTOLOGY THAT "EQUAL" MEANS "EQUAL." 

HAD THE COURT PAUSED TO PROBE MORE DEEPLY INTO THE MATTER, IT WOULD
HAVE FOUND THAT THE EQUAL PROTECTION CLAUSE WAS NEVER INTENDED TO
INHIBIT THE STATES IN CHOOSING ANY DEMOCRATIC METHOD THEY PLEASED FOR
THE APPORTIONMENT OF THEIR LEGISLATURES.  THIS IS SHOWN BY THE LANGUAGE
OF THE FOURTEENTH AMENDMENT TAKEN AS A WHOLE, BY THE UNDERSTANDING OF
THOSE WHO PROPOSED AND RATIFIED IT, AND BY THE POLITICAL PRACTICES OF
THE STATES AT THE TIME THE AMENDMENT WAS ADOPTED.  IT IS CONFIRMED BY
NUMEROUS STATE AND CONGRESSIONAL ACTIONS SINCE THE ADOPTION OF THE
FOURTEENTH AMENDMENT, AND BY THE COMMON UNDERSTANDING OF THE AMENDMENT
AS EVIDENCED BY SUBSEQUENT CONSTITUTIONAL AMENDMENTS AND DECISIONS OF
THIS COURT BEFORE BAKER V. CARR, SUPRA, MADE AN ABRUPT BREAK WITH THE
PAST IN 1962. 

THE FAILURE OF THE COURT TO CONSIDER ANY OF THESE MATTERS CANNOT BE
EXCUSED OR EXPLAINED BY ANY CONCEPT OF "DEVELOPING" CONSTITUTIONALISM. 
IT IS MEANINGLESS TO SPEAK OF CONSTITUTIONAL "DEVELOPMENT" WHEN BOTH
THE LANGUAGE AND HISTORY OF THE CONTROLLING PROVISIONS OF THE
CONSTITUTION ARE WHOLLY IGNORED.  SINCE IT CAN, I THINK, BE SHOWN
BEYOND DOUBT THAT STATE LEGISLATIVE APPORTIONMENTS, AS SUCH, ARE WHOLLY
FREE OF CONSTITUTIONAL LIMITATIONS, SAVE SUCH AS MAY BE IMPOSED BY THE
REPUBLICAN FORM OF GOVERNMENT CLAUSE (CONST., ART. IV, SEC. 4), (FN4)
THE COURT'S ACTION NOW BRINGING THEM WITHIN THE PURVIEW OF THE
FOURTEENTH AMENDMENT AMOUNTS TO NOTHING LESS THAN AN EXERCISE OF THE
AMENDING POWER BY THIS COURT. 

SO FAR AS THE FEDERAL CONSTITUTION IS CONCERNED, THE COMPLAINTS IN
THESE CASES SHOULD ALL HAVE BEEN DISMISSED BELOW FOR FAILURE TO STATE A
CAUSE OF ACTION, BECAUSE WHAT HAS BEEN ALLEGED OR PROVED SHOWS NO
VIOLATION OF ANY CONSTITUTIONAL RIGHT. 

BEFORE PROCEEDING TO MY ARGUMENT IT SHOULD BE OBSERVED THAT NOTHING
DONE IN BAKER V. CARR, SUPRA, OR IN THE TWO CASES THAT FOLLOWED IN ITS
WAKE, GRAY V. SANDERS AND WESBERRY V. SANDERS, SUPRA, FROM WHICH THE
COURT QUOTES AT SOME LENGTH, FORECLOSES THE CONCLUSION WHICH I REACH. 
BAKER DECIDED ONLY THAT CLAIMS SUCH AS THOSE MADE HERE ARE WITHIN THE
COMPETENCE OF THE FEDERAL COURTS TO ADJUDICATE.  ALTHOUGH THE COURT
STATED AS ITS CONCLUSION THAT THE ALLEGATIONS OF A DENIAL OF EQUAL
PROTECTION PRESENTED "A JUSTICIABLE CONSTITUTIONAL CAUSE OF ACTION,"
369 U.S., AT 237, IT IS EVIDENT FROM THE COURT'S OPINION THAT IT WAS
CONCERNED ALL BUT EXCLUSIVELY WITH JUSTICIABILITY AND GAVE NO SERIOUS
ATTENTION TO THE QUESTION WHETHER THE EQUAL PROTECTION CLAUSE TOUCHES
STATE LEGISLATIVE APPORTIONMENTS.  (FN5)  NEITHER THE OPINION OF THE
COURT NOR ANY OF THE CONCURRING OPINIONS CONSIDERED THE RELEVANT TEXT
OF THE FOURTEENTH AMENDMENT OR ANY OF THE HISTORICAL MATERIALS BEARING
ON THAT QUESTION.  NONE OF THE MATERIALS WAS BRIEFED OR OTHERWISE
BROUGHT TO THE COURT'S ATTENTION.  (FN6) 

IN THE GRAY CASE THE COURT EXPRESSLY LAID ASIDE THE APPLICABILITY TO
STATE LEGISLATIVE APPORTIONMENTS OF THE "ONE PERSON, ONE VOTE" THEORY
THERE FOUND TO REQUIRE THE STRIKING DOWN OF THE GEORGIA COUNTY UNIT
SYSTEM.  SEE 372 U.S., AT 376, AND THE CONCURRING OPINION OF STEWART,
J., JOINED BY CLARK, J., ID., AT 381-382. 

IN WESBERRY, INVOLVING CONGRESSIONAL DISTRICTING, THE DECISION RESTED
ON ART. I, SEC. 2, OF THE CONSTITUTION.  THE COURT EXPRESSLY DID NOT
REACH THE ARGUMENTS PUT FORWARD CONCERNING THE EQUAL PROTECTION
CLAUSE.  SEE 376 U.S., AT 8, NOTE 10. 

THUS IT SEEMS ABUNDANTLY CLEAR THAT THE COURT IS ENTIRELY FREE TO
DEAL WITH THE CASES PRESENTLY BEFORE IT IN LIGHT OF MATERIALS NOW
CALLED TO ITS ATTENTION FOR THE FIRST TIME.  TO THESE I NOW TURN. 

                                              I. 

A. THE LANGUAGE OF THE FOURTEENTH AMENDMENT. 

THE COURT RELIES EXCLUSIVELY ON THAT PORTION OF SEC. 1 OF THE
FOURTEENTH AMENDMENT WHICH PROVIDES THAT NO STATE SHALL "DENY TO ANY
PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS," AND
DISREGARDS ENTIRELY THE SIGNIFICANCE OF SEC. 2, WHICH READS: 

"REPRESENTATIVES SHALL BE APPORTIONED AMONG THE SEVERAL STATES
ACCORDING TO THEIR RESPECTIVE NUMBERS, COUNTING THE WHOLE NUMBER OF
PERSONS IN EACH STATE, EXCLUDING INDIANS NOT TAXED.  BUT WHEN THE RIGHT
TO VOTE AT ANY ELECTION FOR THE CHOICE OF ELECTORS FOR PRESIDENT AND
VICE PRESIDENT OF THE UNITED STATES, REPRESENTATIVES IN CONGRESS, THE
EXECUTIVE AND JUDICIAL OFFICERS OF A STATE, OR THE MEMBERS OF THE
LEGISLATURE THEREOF, IS DENIED TO ANY OF THE MALE INHABITANTS OF SUCH
STATE, BEING TWENTY-ONE YEARS OF AGE, AND CITIZENS OF THE UNITED
STATES, OR IN ANY WAY ABRIDGED, EXCEPT FOR PARTICIPATION IN REBELLION,
OR OTHER CRIME, THE BASIS OF REPRESENTATION THEREIN SHALL BE REDUCED IN
THE PROPORTION WHICH THE NUMBER OF SUCH MALE CITIZENS SHALL BEAR TO THE
WHOLE NUMBER OF MALE CITIZENS TWENTY-ONE YEARS OF AGE IN SUCH STATE." 

THE AMENDMENT IS A SINGLE TEXT.  IT WAS INTRODUCED AND DISCUSSED AS
SUCH IN THE RECONSTRUCTION COMMITTEE, (FN7) WHICH REPORTED IT TO THE
CONGRESS.  IT WAS DISCUSSED AS A UNIT IN CONGRESS AND PROPOSED AS A
UNIT TO THE STATES, (FN8) WHICH RATIFIED IT AS A UNIT.  A PROPOSAL TO
SPLIT UP THE AMENDMENT AND SUBMIT EACH SECTION TO THE STATES AS A
SEPARATE AMENDMENT WAS REJECTED BY THE SENATE.  (FN9)  WHATEVER ONE
MIGHT TAKE TO BE THE APPLICATION TO THESE CASES OF THE EQUAL PROTECTION
CLAUSE IF IT STOOD ALONE, I AM UNABLE TO UNDERSTAND THE COURT'S UTTER
DISREGARD OF THE SECOND SECTION WHICH EXPRESSLY RECOGNIZES THE STATES'
POWER TO DENY "OR IN ANY WAY" ABRIDGE THE RIGHT OF THEIR INHABITANTS TO
VOTE FOR "THE MEMBERS OF THE STATE LEGISLATURE," AND ITS EXPRESS
PROVISION OF A REMEDY FOR SUCH DENIAL OR ABRIDGMENT.  THE COMPREHENSIVE
SCOPE OF THE SECOND SECTION AND ITS PARTICULAR REFERENCE TO THE STATE
LEGISLATURES PRECLUDE THE SUGGESTION THAT THE FIRST SECTION WAS
INTENDED TO HAVE THE RESULT REACHED BY THE COURT TODAY.  IF INDEED THE
WORDS OF THE FOURTEENTH AMENDMENT SPEAK FOR THEMSELVES, AS THE
MAJORITY'S DISREGARD OF HISTORY SEEMS TO IMPLY, THEY SPEAK AS CLEARLY
AS MAY BE AGAINST THE CONSTRUCTION WHICH THE MAJORITY PUTS ON THEM. 
BUT WE ARE NOT LIMITED TO THE LANGUAGE OF THE AMENDMENT ITSELF. 

B. PROPOSAL AND RATIFICATION OF THE AMENDMENT. 

THE HISTORY OF THE ADOPTION OF THE FOURTEENTH AMENDMENT PROVIDES
CONCLUSIVE EVIDENCE THAT NEITHER THOSE WHO PROPOSED NOR THOSE WHO
RATIFIED THE AMENDMENT BELIEVED THAT THE EQUAL PROTECTION CLAUSE
LIMITED THE POWER OF THE STATES TO APPORTION THEIR LEGISLATURES AS THEY
SAW FIT.  MOREOVER, THE HISTORY DEMONSTRATES THAT THE INTENTION TO
LEAVE THIS POWER UNDISTURBED WAS DELIBERATE AND WAS WIDELY BELIEVED TO
BE ESSENTIAL TO THE ADOPTION OF THE AMENDMENT. 

(I)  PROPOSAL OF THE AMENDMENT IN CONGRESS.  - A RESOLUTION PROPOSING
WHAT BECAME THE FOURTEENTH AMENDMENT WAS REPORTED TO BOTH HOUSES OF
CONGRESS BY THE RECONSTRUCTION COMMITTEE OF FIFTEEN ON APRIL 30, 1866. 
(FN10)  THE FIRST TWO SECTIONS OF THE PROPOSED AMENDMENT READ: 

"SEC. 1.  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. 

"SEC. 2.  REPRESENTATIVES SHALL BE APPORTIONED AMONG THE SEVERAL
STATES WHICH MAY BE INCLUDED WITHIN THIS UNION, ACCORDING TO THEIR
RESPECTIVE NUMBERS, COUNTING THE WHOLE NUMBER OF PERSONS IN EACH STATE,
EXCLUDING INDIANS NOT TAXED.  BUT WHENEVER, IN ANY STATE, THE ELECTIVE
FRANCHISE SHALL BE DENIED TO ANY PORTION OF ITS MALE CITIZENS NOT LESS
THAN TWENTY-ONE YEARS OF AGE, OR IN ANY WAY ABRIDGED EXCEPT FOR
PARTICIPATION IN REBELLION OR OTHER CRIME, THE BASIS OF REPRESENTATION
IN SUCH STATE SHALL BE REDUCED IN THE PROPORTION WHICH THE NUMBER OF
SUCH MALE CITIZENS SHALL BEAR TO THE WHOLE NUMBER OF MALE CITIZENS NOT
LESS THAN TWENTY-ONE YEARS OF AGE."  (FN11) 

IN THE HOUSE, THADDEUS STEVENS INTRODUCED DEBATE ON THE RESOLUTION ON
MAY 8.  IN HIS OPENING REMARKS, STEVENS EXPLAINED WHY HE SUPPORTED THE
RESOLUTION ALTHOUGH IT FELL "FAR SHORT" OF HIS WISHES: 

"I BELIEVE IT IS ALL THAT CAN BE OBTAINED IN THE PRESENT STATE OF
PUBLIC OPINION.  NOT ONLY CONGRESS BUT THE SEVERAL STATES ARE TO BE
CONSULTED.  UPON A CAREFUL SURVEY OF THE WHOLE GROUND, WE DID NOT
BELIEVE THAT NINETEEN OF THE LOYAL STATES COULD BE INDUCED TO RATIFY
ANY PROPOSITION MORE STRINGENT THAN THIS."  (FN12) 

IN EXPLANATION OF THIS BELIEF, HE ASKED THE HOUSE TO REMEMBER "THAT
THREE MONTHS SINCE, AND MORE, THE COMMITTEE REPORTED AND THE HOUSE
ADOPTED A PROPOSED AMENDMENT FIXING THE BASIS OF REPRESENTATION IN SUCH
WAY AS WOULD SURELY HAVE SECURED THE ENFRANCHISEMENT OF EVERY CITIZEN
AT NO DISTANT PERIOD," BUT THAT PROPOSAL HAD BEEN REJECTED BY THE
SENATE.  (FN13) 

HE THEN EXPLAINED THE IMPACT OF THE FIRST SECTION OF THE PROPOSED
AMENDMENT, PARTICULARLY THE EQUAL PROTECTION CLAUSE. 

"THIS AMENDMENT  ...  ALLOWS CONGRESS TO CORRECT THE UNJUST
LEGISLATION OF THE STATES, SO FAR THAT THE LAW WHICH OPERATES UPON ONE
MAN SHALL OPERATE EQUALLY UPON ALL.  WHATEVER LAW PUNISHES A WHITE MAN
FOR A CRIME SHALL PUNISH THE BLACK MAN PRECISELY IN THE SAME WAY AND TO
THE SAME DEGREE.  WHATEVER LAW PROTECTS THE WHITE MAN SHALL AFFORD
'EQUAL' PROTECTION TO THE BLACK MAN.  WHATEVER MEANS OF REDRESS IS
AFFORDED TO ONE SHALL BE AFFORDED TO ALL.  WHATEVER LAW ALLOWS THE
WHITE MAN TO TESTIFY IN COURT SHALL ALLOW THE MAN OF COLOR TO DO THE
SAME.  THESE ARE GREAT ADVANTAGES OVER THEIR PRESENT CODES.  NOW
DIFFERENT DEGREES OF PUNISHMENT ARE INFLICTED, NOT ON ACCOUNT OF THE
MAGNITUDE OF THE CRIME, BUT ACCORDING TO THE COLOR OF THE SKIN.  NOW
COLOR DISQUALIFIES A MAN FROM TESTIFYING IN COURTS, OR BEING TRIED IN
THE SAME WAY AS WHITE MEN.  I NEED NOT ENUMERATE THESE PARTIAL AND
OPPRESSIVE LAWS.  UNLESS THE CONSTITUTION SHOULD RESTRAIN THEM THOSE
STATES WILL ALL, I FEAR, KEEP UP THIS DISCRIMINATION, AND CRUSH TO
DEATH THE HATED FREEDMEN."  (FN14) 

HE TURNED NEXT TO THE SECOND SECTION, WHICH HE SAID HE CONSIDERED
"THE MOST IMPORTANT IN THE ARTICLE."  (FN15)  ITS EFFECT, HE SAID, WAS
TO FIX "THE BASIS OF REPRESENTATION IN CONGRESS."  (FN16)  IN
UNMISTAKABLE TERMS, HE RECOGNIZED THE POWER OF A STATE TO WITHHOLD THE
RIGHT TO VOTE: 

"IF ANY STATE SHALL EXCLUDE ANY OF HER ADULT MALE CITIZENS FROM THE
ELECTIVE FRANCHISE, OR ABRIDGE THAT RIGHT, SHE SHALL FORFEIT HER RIGHT
TO REPRESENTATION IN THE SAME PROPORTION.  THE EFFECT OF THIS PROVISION
WILL BE EITHER TO COMPEL THE STATES TO GRANT UNIVERSAL SUFFRAGE OR SO
TO SHEAR THEM OF THEIR POWER AS TO KEEP THEM FOREVER IN A HOPELESS
MINORITY IN THE NATIONAL GOVERNMENT, BOTH LEGISLATIVE AND EXECUTIVE." 
(FN17) 

CLOSING HIS DISCUSSION OF THE SECOND SECTION, HE NOTED HIS DISLIKE
FOR THE FACT THAT IT ALLOWED "THE STATES TO DISCRIMINATE WITH RESPECT
TO THE RIGHT TO VOTE AMONG THE SAME CLASS, AND RECEIVE PROPORTIONATE
CREDIT IN REPRESENTATION."  (FN18) 

TOWARD THE END OF THE DEBATE THREE DAYS LATER, MR. BINGHAM, THE
AUTHOR OF THE FIRST SECTION IN THE RECONSTRUCTION COMMITTEE AND ITS
LEADING PROPONENT, (FN19) CONCLUDED HIS DISCUSSION OF IT WITH THE
FOLLOWING: 

"ALLOW ME, MR. SPEAKER, IN PASSING, TO SAY THAT THIS AMENDMENT TAKES
FROM NO STATE ANY RIGHT THAT EVER PERTAINED TO IT.  NO STATE EVER HAD
THE RIGHT, UNDER THE FORMS OF LAW OR OTHERWISE, TO DENY TO ANY FREEMAN
THE EQUAL PROTECTION OF THE LAWS OR TO ABRIDGE THE PRIVILEGES OR
IMMUNITIES OF ANY CITIZEN OF THE REPUBLIC, ALTHOUGH MANY OF THEM HAVE
ASSUMED AND EXERCISED THE POWER, AND THAT WITHOUT REMEDY.  THE
AMENDMENT DOES NOT GIVE, AS THE SECOND SECTION SHOWS, THE POWER TO
CONGRESS OF REGULATING SUFFRAGE IN THE SEVERAL STATES."  (FN20) 

HE IMMEDIATELY CONTINUED: 

"THE SECOND SECTION EXCLUDES THE CONCLUSION THAT BY THE FIRST SECTION
SUFFRAGE IS SUBJECTED TO CONGRESSIONAL LAW; SAVE, INDEED, WITH THIS
EXCEPTION, THAT AS THE RIGHT IN THE PEOPLE OF EACH STATE TO A
REPUBLICAN GOVERNMENT AND TO CHOOSE THEIR REPRESENTATIVES IN CONGRESS
IS OF THE GUARANTEES OF THE CONSTITUTION, BY THIS AMENDMENT A REMEDY
MIGHT BE GIVEN DIRECTLY FOR A CASE SUPPOSED BY MADISON, WHERE TREASON
MIGHT CHANGE A STATE GOVERNMENT FROM A REPUBLICAN TO A DESPOTIC
GOVERNMENT, AND THEREBY DENY SUFFRAGE TO THE PEOPLE."  (FN21) 

HE STATED AT ANOTHER POINT IN HIS REMARKS: 

"TO BE SURE WE ALL AGREE, AND THE GREAT BODY OF THE PEOPLE OF THIS
COUNTRY AGREE, AND THE COMMITTEE THUS FAR IN REPORTING MEASURES OF
RECONSTRUCTION AGREE, THAT THE EXERCISE OF THE ELECTIVE FRANCHISE,
THOUGH IT BE ONE OF THE PRIVILEGES OF A CITIZEN OF THE REPUBLIC, IS
EXCLUSIVELY UNDER THE CONTROL OF THE STATES."  (FN22) 

IN THE THREE DAYS OF DEBATE WHICH SEPARATE THE OPENING AND CLOSING
REMARKS, BOTH MADE BY MEMBERS OF THE RECONSTRUCTION COMMITTEE, EVERY
SPEAKER ON THE RESOLUTION, WITH A SINGLE DOUBTFUL EXCEPTION, (FN23)
ASSUMED WITHOUT QUESTION THAT, AS MR. BINGHAM SAID, SUPRA, "THE SECOND
SUBJECTED TO CONGRESSIONAL LAW."  THE ASSUMPTION WAS NEITHER
INADVERTENT NOR SILENT.  MUCH OF THE DEBATE CONCERNED THE CHANGE IN THE
BASIS OF REPRESENTATION EFFECTED BY THE SECOND SECTION, AND THE
SPEAKERS STATED REPEATEDLY, IN EXPRESS TERMS OR BY UNMISTAKABLE
IMPLICATION, THAT THE STATES RETAINED THE POWER TO REGULATE SUFFRAGE
WITHIN THEIR BORDERS.  ATTACHED AS APPENDIX A HERETO ARE SOME OF THOSE
STATEMENTS.  THE RESOLUTION WAS ADOPTED BY THE HOUSE WITHOUT CHANGE ON
MAY 10.  (FN24) 

DEBATE IN THE SENATE BEGAN ON MAY 23, AND FOLLOWED THE SAME PATTERN. 
SPEAKING FOR THE SENATE CHAIRMAN OF THE RECONSTRUCTION COMMITTEE, WHO
WAS ILL, SENATOR HOWARD, ALSO A MEMBER OF THE COMMITTEE, EXPLAINED THE
MEANING OF THE EQUAL PROTECTION CLAUSE AS FOLLOWS: 

"THE LAST TWO CLAUSES OF THE FIRST SECTION OF THE AMENDMENT DISABLE A
STATE FROM DEPRIVING NOT MERELY A CITIZEN OF THE UNITED STATES, BUT ANY
PERSON, WHOEVER HE MAY BE, OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE
PROCESS OF LAW, OR FROM DENYING TO HIM THE EQUAL PROTECTION OF THE LAWS
OF THE STATE.  THIS ABOLISHES ALL CLASS LEGISLATION IN THE STATES AND
DOES AWAY WITH THE INJUSTICE OF SUBJECTING ONE CASTE OF PERSONS TO A
CODE NOT APPLICABLE TO ANOTHER.  IT PROHIBITS THE HANGING OF A BLACK
MAN FOR A CRIME FOR WHICH THE WHITE MAN IS NOT TO BE HANGED.  IT
PROTECTS THE BLACK MAN IN HIS FUNDAMENTAL RIGHTS AS A CITIZEN WITH THE
SAME SHIELD WHICH IT THROWS OVER THE WHITE MAN.  IS IT NOT TIME, MR.
PRESIDENT, THAT WE EXTEND TO THE BLACK MAN, I HAD ALMOST CALLED IT THE
POOR PRIVILEGE OF THE EQUAL PROTECTION OF THE LAW  ...  ? 

"BUT, SIR, THE FIRST SECTION OF THE PROPOSED AMENDMENT DOES NOT GIVE
TO EITHER OF THESE CLASSES THE RIGHT OF VOTING.  THE RIGHT OF SUFFRAGE
IS NOT, IN LAW, ONE OF THE PRIVILEGES OR IMMUNITIES THUS SECURED BY THE
CONSTITUTION.  IT IS MERELY THE CREATURE OF LAW.  IT HAS ALWAYS BEEN
REGARDED IN THIS COUNTRY AS THE RESULT OF POSITIVE LOCAL LAW, NOT
REGARDED AS ONE OF THOSE FUNDAMENTAL RIGHTS LYING AT THE BASIS OF ALL
SOCIETY AND WITHOUT WHICH A PEOPLE CANNOT EXIST EXCEPT AS SLAVES,
SUBJECT TO A DESPOTISM."  (FN25) 

DISCUSSING THE SECOND SECTION, HE EXPRESSED HIS REGRET THAT IT DID
"NOT RECOGNIZE THE AUTHORITY OF THE UNITED STATES OVER THE QUESTION OF
SUFFRAGE IN THE SEVERAL STATES AT ALL  ...  ."  (FN26) HE JUSTIFIED THE
LIMITED PURPOSE OF THE AMENDMENT IN THIS REGARD AS FOLLOWS: 

"BUT, SIR, IT IS NOT THE QUESTION HERE WHAT WILL WE DO; IT IS NOT THE
QUESTION WHAT YOU, OR I, OR HALF A DOZEN OTHER MEMBERS OF THE SENATE
MAY PREFER IN RESPECT TO COLORED SUFFRAGE; IT IS NOT ENTIRELY THE
QUESTION WHAT MEASURE WE CAN PASS THROUGH THE TWO HOUSES; BUT THE
QUESTION REALLY IS, WHAT WILL THE LEGISLATURES OF THE VARIOUS STATES TO
WHOM THESE AMENDMENTS ARE TO BE SUBMITTED DO IN THE PREMISES; WHAT IS
IT LIKELY WILL MEET THE GENERAL APPROBATION OF THE PEOPLE WHO ARE TO
ELECT THE LEGISLATURES, THREE FOURTHS OF WHOM MUST RATIFY OUR
PROPOSITIONS BEFORE THEY HAVE THE FORCE OF CONSTITUTIONAL PROVISIONS? 
   *         *         *         *         * 

"THE COMMITTEE WERE OF OPINION THAT THE STATES ARE NOT YET PREPARED
TO SANCTION SO FUNDAMENTAL A CHANGE AS WOULD BE THE CONCESSION OF THE
RIGHT OF SUFFRAGE TO THE COLORED RACE.  WE MAY AS WELL STATE IT PLAINLY
AND FAIRLY, SO THAT THERE SHALL BE NO MISUNDERSTANDING ON THE SUBJECT. 
IT WAS OUR OPINION THAT THREE FOURTHS OF THE STATES OF THIS UNION COULD
NOT BE INDUCED TO VOTE TO GRANT THE RIGHT OF SUFFRAGE, EVEN IN ANY
DEGREE OR UNDER ANY RESTRICTION, TO THE COLORED RACE  ...  .    "THE
SECOND SECTION LEAVES THE RIGHT TO REGULATE THE ELECTIVE FRANCHISE
STILL WITH THE STATES, AND DOES NOT MEDDLE WITH THAT RIGHT."  (FN27) 

THERE WAS NOT IN THE SENATE, AS THERE HAD BEEN IN THE HOUSE, A
CLOSING SPEECH IN EXPLANATION OF THE AMENDMENT.  BUT BECAUSE THE SENATE
CONSIDERED, AND FINALLY ADOPTED, SEVERAL CHANGES IN THE FIRST AND
SECOND SECTIONS, EVEN MORE ATTENTION WAS GIVEN TO THE PROBLEM OF VOTING
RIGHTS THERE THAN HAD BEEN GIVEN IN THE HOUSE.  IN THE SENATE, IT WAS
FULLY UNDERSTOOD BY EVERYONE THAT NEITHER THE FIRST NOR THE SECOND
ELECTIVE FRANCHISE.  ATTACHED AS APPENDIX B HERETO ARE REPRESENTATIVE
STATEMENTS FROM THE DEBATES TO THAT EFFECT.  AFTER HAVING CHANGED THE
PROPOSED AMENDMENT TO THE FORM IN WHICH IT WAS ADOPTED, THE SENATE
PASSED THE RESOLUTION ON JUNE 8, 1866.  (FN28)  AS CHANGED, IT PASSED
IN THE HOUSE ON JUNE 13.  (FN29) 

(II)  RATIFICATION BY THE "LOYAL" STATES.  - REPORTS OF THE DEBATES
IN THE STATE LEGISLATURES ON THE RATIFICATION OF THE FOURTEENTH
AMENDMENT ARE NOT GENERALLY AVAILABLE.  (FN30)  THERE IS, HOWEVER,
COMPELLING INDIRECT EVIDENCE.  OF THE 23 LOYAL STATES WHICH RATIFIED
THE AMENDMENT BEFORE 1870, FIVE HAD CONSTITUTIONAL PROVISIONS FOR
APPORTIONMENT OF AT LEAST ONE HOUSE OF THEIR RESPECTIVE LEGISLATURES
WHICH WHOLLY DISREGARDED THE SPREAD OF POPULATION.  (FN31)  TEN MORE
HAD CONSTITUTIONAL PROVISIONS WHICH GAVE PRIMARY EMPHASIS TO
POPULATION, BUT WHICH APPLIED ALSO OTHER PRINCIPLES, SUCH AS PARTIAL
RATIOS AND RECOGNITION OF POLITICAL SUBDIVISIONS, WHICH WERE INTENDED
TO FAVOR SPARSELY SETTLED AREAS.  (FN32)  CAN IT BE SERIOUSLY CONTENDED
THAT THE LEGISLATURES OF THESE STATES, ALMOST TWO-THIRDS OF THOSE
CONCERNED, WOULD HAVE RATIFIED AN AMENDMENT WHICH MIGHT RENDER THEIR
OWN STATES' CONSTITUTIONS UNCONSTITUTIONAL? 

NOR WERE THESE STATE CONSTITUTIONAL PROVISIONS MERELY THEORETICAL. 
IN NEW JERSEY, FOR EXAMPLE, CAPE MAY COUNTY, WITH A POPULATION OF
8,349, AND OCEAN COUNTY, WITH A POPULATION OF 13,628, EACH ELECTED ONE
STATE SENATOR, AS DID ESSEX AND HUDSON COUNTIES, WITH POPULATIONS OF
143,839 AND 129,067, RESPECTIVELY.  (FN33)  IN THE HOUSE, EACH COUNTY
WAS ENTITLED TO ONE REPRESENTATIVE, WHICH LEFT 39 SEATS TO BE
APPORTIONED ACCORDING TO POPULATION.  (FN34)  SINCE THERE WERE 12
COUNTIES BESIDES THE TWO ALREADY MENTIONED WHICH HAD POPULATIONS OVER
30,000, (FN35) IT IS EVIDENT THAT THERE WERE SERIOUS DISPROPORTIONS IN
THE HOUSE ALSO.  IN NEW YORK, EACH OF THE 60 COUNTIES EXCEPT HAMILTON
COUNTY WAS ENTITLED TO ONE OF THE 128 SEATS IN THE ASSEMBLY.  (FN36)
THIS LEFT 69 SEATS TO BE DISTRIBUTED AMONG COUNTIES THE POPULATIONS OF
WHICH RANGED FROM 15,420 TO 942,292.  (FN37)  WITH SEVEN MORE COUNTIES
HAVING POPULATIONS OVER 100,000 AND 13 OTHERS HAVING POPULATIONS OVER
50,000, (FN38) THE DISPROPORTION IN THE ASSEMBLY WAS NECESSARILY
LARGE.  IN VERMONT, AFTER EACH COUNTY HAD BEEN ALLOCATED ONE SENATOR,
THERE WERE 16 SEATS REMAINING TO BE DISTRIBUTED AMONG THE LARGER
COUNTIES.  (FN39)  THE SMALLEST COUNTY HAD A POPULATION OF 4,082; THE
LARGEST HAD A POPULATION OF 40,651 AND THERE WERE 10 OTHER COUNTIES
WITH POPULATIONS OVER 20,000.  (FN40) 

(III)  RATIFICATION BY THE "RECONSTRUCTED" STATES.  - EACH OF THE 10
"RECONSTRUCTED" STATES WAS REQUIRED TO RATIFY THE FOURTEENTH AMENDMENT
BEFORE IT WAS READMITTED TO THE UNION.  (FN41)  THE CONSTITUTION OF
EACH WAS SCRUTINIZED IN CONGRESS.  (FN42)  DEBATES OVER READMISSION
WERE EXTENSIVE.  (FN43)  IN AT LEAST ONE INSTANCE, THE PROBLEM OF STATE
LEGISLATIVE APPORTIONMENT WAS EXPRESSLY CALLED TO THE ATTENTION OF
CONGRESS.  OBJECTING TO THE INCLUSION OF FLORIDA IN THE ACT OF JUNE 25,
1868, MR. FARNSWORTH STATED ON THE FLOOR OF THE HOUSE: 

"I MIGHT REFER TO THE APPORTIONMENT OF REPRESENTATIVES.  BY THIS
CONSTITUTION REPRESENTATIVES IN THE LEGISLATURE OF FLORIDA ARE
APPORTIONED IN SUCH A MANNER AS TO GIVE TO THE SPARSELY-POPULATED
PORTIONS OF THE STATE THE CONTROL OF THE LEGISLATURE.  THE SPARSELY
POPULATED PARTS OF THE STATE ARE THOSE WHERE THERE ARE VERY FEW
NEGROES, THE PARTS INHABITED BY THE WHITE REBELS, THE MEN WHO, COMING
IN FROM GEORGIA, ALABAMA, AND OTHER STATES, CONTROL THE FORTUNES OF
THEIR SEVERAL COUNTIES.  BY THIS CONSTITUTION EVERY COUNTY IN THAT
STATE IS ENTITLED TO A REPRESENTATIVE.  THERE ARE IN THAT STATE
COUNTIES THAT HAVE NOT THIRTY REGISTERED VOTERS; YET, UNDER THIS
CONSTITUTION, EVERY ONE OF THOSE COUNTIES IS ENTITLED TO A
REPRESENTATIVE IN THE LEGISLATURE; WHILE THE POPULOUS COUNTIES ARE
ENTITLED TO ONLY ONE REPRESENTATIVE EACH, WITH AN ADDITIONAL
REPRESENTATIVE FOR EVERY THOUSAND INHABITANTS."  (FN44) 

THE RESPONSE OF MR. BUTLER IS PARTICULARLY ILLUMINATING: 

"ALL THESE ARGUMENTS, ALL THESE STATEMENTS, ALL THE PROVISIONS OF
THIS CONSTITUTION HAVE BEEN SUBMITTED TO THE JUDICIARY COMMITTEE OF THE
SENATE, AND THEY HAVE FOUND THE CONSTITUTION REPUBLICAN AND PROPER. 
THIS CONSTITUTION HAS BEEN SUBMITTED TO THE SENATE, AND THEY HAVE FOUND
IT REPUBLICAN AND PROPER.  IT HAS BEEN SUBMITTED TO YOUR OWN COMMITTEE
ON RECONSTRUCTION, AND THEY HAVE FOUND IT REPUBLICAN AND PROPER, AND
HAVE REPORTED IT TO THIS HOUSE."  (FN45) 

THE CONSTITUTIONS OF SIX OF THE 10 STATES CONTAINED PROVISIONS
DEPARTING SUBSTANTIALLY FROM THE METHOD OF APPORTIONMENT NOW HELD TO BE
REQUIRED BY THE AMENDMENT.  (FN46)  AND, AS IN THE NORTH, THE
DEPARTURES WERE AS REAL IN FACT AS IN THEORY.  IN NORTH CAROLINA, 90 OF
THE 120 REPRESENTATIVES WERE APPORTIONED AMONG THE COUNTIES WITHOUT
REGARD TO POPULATION, LEAVING 30 SEATS TO BE DISTRIBUTED BY NUMBERS. 
(FN47)  SINCE THERE WERE SEVEN COUNTIES WITH POPULATIONS UNDER 5,000
AND 26 COUNTIES WITH POPULATIONS OVER 15,000, THE DISPROPORTIONS MUST
HAVE BEEN WIDESPREAD AND SUBSTANTIAL.  (FN48)  IN SOUTH CAROLINA,
CHARLESTON, WITH A POPULATION OF 88,863, ELECTED TWO SENATORS; EACH OF
THE OTHER COUNTIES, WITH POPULATIONS RANGING FROM 10,269 TO 42,486,
ELECTED ONE SENATOR.  (FN49)  IN FLORIDA, EACH OF THE 39 COUNTIES WAS
ENTITLED TO ELECT ONE REPRESENTATIVE; NO COUNTY WAS ENTITLED TO MORE
THAN FOUR.  (FN50)  THESE PRINCIPLES APPLIED TO DADE COUNTY, WITH A
POPULATION OF 85, AND TO ALACHUA COUNTY AND LEON COUNTY, WITH
POPULATIONS OF 17,328 AND 15,236, RESPECTIVELY.  (FN51) 

IT IS INCREDIBLE THAT CONGRESS WOULD HAVE EXACTED RATIFICATION OF THE
FOURTEENTH AMENDMENT AS THE PRICE OF READMISSION, WOULD HAVE STUDIED
THE STATE CONSTITUTIONS FOR COMPLIANCE WITH THE AMENDMENT, AND WOULD
THEN HAVE DISREGARDED VIOLATIONS OF IT. 

THE FACTS RECITED ABOVE SHOW BEYOND ANY POSSIBLE DOUBT: 

(1)  THAT CONGRESS, WITH FULL AWARENESS OF AND ATTENTION TO THE
POSSIBILITY THAT THE STATES WOULD NOT AFFORD FULL EQUALITY IN VOTING
RIGHTS TO ALL THEIR CITIZENS, NEVERTHELESS DELIBERATELY CHOSE NOT TO
INTERFERE WITH THE STATES' PLENARY POWER IN THIS REGARD WHEN IT
PROPOSED THE FOURTEENTH AMENDMENT: 

(2)  THAT CONGRESS, DID NOT INCLUDE IN THE FOURTEENTH AMENDMENT
RESTRICTIONS ON THE STATES' POWER TO CONTROL VOTING RIGHTS BECAUSE IT
BELIEVED THAT IF SUCH RESTRICTIONS WERE INCLUDED, THE AMENDMENT WOULD
NOT BE ADOPTED; AND: 

(3)  THAT AT LEAST A SUBSTANTIAL MAJORITY, IF NOT ALL, OF THE STATES
WHICH RATIFIED THE FOURTEENTH AMENDMENT DID NOT CONSIDER THAT IN SO
DOING, THEY WERE ACCEPTING LIMITATIONS ON THEIR FREEDOM, NEVER BEFORE
QUESTIONED, TO REGULATE VOTING RIGHTS AS THEY CHOSE. 

EVEN IF ONE WERE TO ACCEPT THE MAJORITY'S BELIEF THAT IT IS PROPER
ENTIRELY TO DISREGARD THE UNMISTAKABLE IMPLICATIONS OF THE SECOND
CONFOUNDED BY ITS DISREGARD OF ALL THIS HISTORY.  THERE IS HERE NONE OF
THE DIFFICULTY WHICH MAY ATTEND THE APPLICATION OF BASIC PRINCIPLES TO
SITUATIONS NOT CONTEMPLATED OR UNDERSTOOD WHEN THE PRINCIPLES WERE
FRAMED.  THE PROBLEMS WHICH CONCERN THE COURT NOW WERE PROBLEMS WHEN
THE AMENDMENT WAS ADOPTED.  BY THE DELIBERATE CHOICE OF THOSE
RESPONSIBLE FOR THE AMENDMENT, IT LEFT THOSE PROBLEMS UNTOUCHED. 

                                      C. AFTER 1868. 

THE YEARS FOLLOWING 1868, FAR FROM INDICATING A DEVELOPING AWARENESS
OF THE APPLICABILITY OF THE FOURTEENTH AMENDMENT TO PROBLEMS OF
APPORTIONMENT, DEMONSTRATE PRECISELY THE REVERSE:  THAT THE STATES
RETAINED AND EXERCISED THE POWER INDEPENDENTLY TO APPORTION THEIR
LEGISLATURES.  IN ITS CONSTITUTIONS OF 1875 AND 1901, ALABAMA CARRIED
FORWARD EARLIER PROVISIONS GUARANTEEING EACH COUNTY AT LEAST ONE
REPRESENTATIVE AND FIXING AN UPPER LIMIT TO THE NUMBER OF SEATS IN THE
HOUSE.  (FN52) FLORIDA'S CONSTITUTION OF 1885 CONTINUED THE GUARANTEE
OF ONE REPRESENTATIVE FOR EACH COUNTY AND REDUCED THE MAXIMUM NUMBER OF
REPRESENTATIVES PER COUNTY FROM FOUR TO THREE.  (FN53)  GEORGIA, IN
1877, CONTINUED TO FAVOR THE SMALLER COUNTIES.  (FN54)  LOUISIANA, IN
1879, GUARANTEED EACH PARISH AT LEAST ONE REPRESENTATIVE IN THE HOUSE. 
(FN55)  IN 1890, MISSISSIPPI GUARANTEED EACH COUNTY ONE REPRESENTATIVE,
ESTABLISHED A MAXIMUM NUMBER OF REPRESENTATIVES, AND PROVIDED THAT
SPECIFIED GOUPS OF COUNTIES SHOULD EACH HAVE APPROXIMATELY ONE-THIRD OF
THE SEATS IN THE HOUSE, WHATEVER THE SPREAD OF POPULATION.  (FN56)
MISSOURI'S CONSTITUTION OF 1875 GAVE EACH COUNTY ONE REPRESENTATIVE AND
OTHERWISE FAVORED LESS POPULOUS AREAS.  (FN57)  MONTANA'S ORIGINAL
CONSTITUTION OF 1889 APPORTIONED THE STATE SENATE BY COUNTIES.  (FN58)
IN 1877, NEW HAMPSHIRE AMENDED ITS CONSTITUTION'S PROVISIONS FOR
APPORTIONMENT, BUT CONTINUED TO FAVOR SPARSELY SETTLED AREAS IN THE
HOUSE AND TO APPORTION SEATS IN THE SENATE ACCORDING TO DIRECT TAXES
PAID; (FN59) THE SAME WAS TRUE OF NEW HAMPSHIRE'S CONSTITUTION OF
1902.  (FN60) 

IN 1894, NEW YORK ADOPTED A CONSTITUTION THE PECULIAR APPORTIONMENT
PROVISIONS OF WHICH WERE OBVIOUSLY INTENDED TO PREVENT REPRESENTATION
ACCORDING TO POPULATION:  NO COUNTY WAS ALLOWED TO HAVE MORE THAN ONE
THIRD OF ALL THE SENATORS, NO TWO COUNTIES WHICH WERE ADJOINING OR
"SEPARATED ONLY BY PUBLIC WATERS" COULD HAVE MORE THAN ONE-HALF OF ALL
THE SENATORS, AND WHENEVER ANY COUNTY BECAME ENTITLED TO MORE THAN
THREE SENATORS, THE TOTAL NUMBER OF SENATORS WAS INCREASED, THUS
PRESERVING TO THE SMALL COUNTIES THEIR ORIGINAL NUMBER OF SEATS. 
(FN61)  IN ADDITION, EACH COUNTY EXCEPT HAMILTON WAS GUARANTEED A SEAT
IN THE ASSEMBLY.  (FN62)  THE NORTH CAROLINA CONSTITUTION OF 1876 GAVE
EACH COUNTY AT LEAST ONE REPRESENTATIVE AND FIXED A MAXIMUM NUMBER OF
REPRESENTATIVES FOR THE WHOLE HOUSE.  (FN63)  OKLAHOMA'S CONSTITUTION
AT THE TIME OF ITS ADMISSION TO THE UNION (1907) FAVORED SMALL COUNTIES
BY THE USE OF PARTIAL RATIOS AND A MAXIMUM NUMBER OF SEATS IN THE
HOUSE; IN ADDITION, NO COUNTY WAS PERMITTED TO "TAKE PART" IN THE
ELECTION OF MORE THAN SEVEN REPRESENTATIVES.  (FN64) PENNSYLVANIA, IN
1873, CONTINUED TO GUARANTEE EACH COUNTY ONE REPRESENTATIVE IN THE
HOUSE.  (FN65) THE SAME WAS TRUE OF SOUTH CAROLINA'S CONSTITUTION OF
1895, WHICH PROVIDED ALSO THAT EACH COUNTY SHOULD ELECT ONE AND ONLY
ONE SENATOR.  (FN66)  UTAH'S ORIGINAL CONSTITUTION OF 1895 ASSURED EACH
COUNTY OF ONE REPRESENTATIVE IN THE HOUSE.  (FN67)  WYOMING, WHEN IT
ENTERED THE UNION IN 1889, GUARANTEED EACH COUNTY AT LEAST ONE SENATOR
AND ONE REPRESENTATIVE.  (FN68)

                                         D. TODAY. 

SINCE THE COURT NOW INVALIDATES THE LEGISLATIVE APPORTIONMENTS IN SIX
STATES, AND HAS SO FAR UPHELD THE APPORTIONMENT IN NONE, IT IS SCARCELY
NECESSARY TO COMMENT ON THE SITUATION IN THE STATES TODAY, WHICH IS, OF
COURSE, AS FULLY CONTRARY TO THE COURT'S DECISION AS IS THE RECORD OF
EVERY PRIOR PERIOD IN THIS NATION'S HISTORY.  AS OF 1961, THE
CONSTITUTIONS OF ALL BUT 11 STATES, ROUGHLY 20% OF THE TOTAL,
RECOGNIZED BASES OF APPORTIONMENT OTHER THAN GEOGRAPHIC SPREAD OF
POPULATION, AND TO SOME EXTENT FAVORED SPARSELY POPULATED AREAS BY A
VARIETY OF DEVICES, RANGING FROM STRAIGHT AREA REPRESENTATION OR
GUARANTEED MINIMUM AREA REPRESENTATION TO COMPLICATED SCHEMES OF THE
KIND EXEMPLIFIED BY THE PROVISIONS OF NEW YORK'S CONSTITUTION OF 1894,
STILL IN EFFECT UNTIL STRUCK DOWN BY THE COURT TODAY IN NO. 20, POST,
P. 633.  (FN69)  SINCE TENNESSEE, WHICH WAS THE SUBJECT OF BAKER V.
CARR, AND VIRGINIA, SCRUTINIZED AND DISAPPROVED TODAY IN NO. 69, POST,
P. 678, ARE AMONG THE 11 STATES WHOSE OWN CONSTITUTIONS ARE SOUND FROM
THE STANDPOINT OF THE FEDERAL CONSTITUTION AS CONSTRUED TODAY, IT IS
EVIDENT THAT THE ACTUAL PRACTICE OF THE STATES IS EVEN MORE UNIFORMLY
THAN THEIR THEORY OPPOSED TO THE COURT'S VIEW OF WHAT IS
CONSTITUTIONALLY PERMISSIBLE. 

                                E. OTHER FACTORS. 

IN THIS SUMMARY OF WHAT THE MAJORITY IGNORES, NOTE SHOULD BE TAKEN OF
THE FIFTEENTH AND NINETEENTH AMENDMENTS.  THE FORMER PROHIBITED THE
STATES FROM DENYING OR ABRIDGING THE RIGHT TO VOTE "ON ACCOUNT OF RACE,
COLOR, OR PREVIOUS CONDITION OF SERVITUDE."  THE LATTER, CERTIFIED AS
PART OF THE CONSTITUTION IN 1920, ADDED SEX TO THE PROHIBITED
CLASSIFICATIONS.  IN MINOR V. HAPPERSETT, 21 WALL.  162, THIS COURT
CONSIDERED THE CLAIM THAT THE RIGHT OF WOMEN TO VOTE WAS PROTECTED BY
THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT.  THE
COURT'S DISCUSSION THERE OF THE SIGNIFICANCE OF THE FIFTEENTH AMENDMENT
IS FULLY APPLICABLE HERE WITH RESPECT TO THE NINETEENTH AMENDMENT AS
WELL.    "AND STILL AGAIN, AFTER THE ADOPTION OF THE FOURTEENTH
AMENDMENT, IT WAS DEEMED NECESSARY TO ADOPT A FIFTEENTH, AS FOLLOWS:
'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 FOURTEENTH AMENDMENT
HAD ALREADY PROVIDED THAT NO STATE SHOULD MAKE OR ENFORCE ANY LAW WHICH
SHOULD ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED
STATES.  IF SUFFRAGE WAS ONE OF THESE PRIVILEGES OR IMMUNITIES, WHY
AMEND THE CONSTITUTION TO PREVENT ITS BEING DENIED ON ACCOUNT OF RACE,
&C.?  NOTHING IS MORE EVIDENT THAN THAT THE GREATER MUST INCLUDE THE
LESS, AND IF ALL WERE ALREADY PROTECTED WHY GO THROUGH WITH THE FORM OF
AMENDING THE CONSTITUTION TO PROTECT A PART?"  ID., AT 175. 

IN THE PRESENT CASE, WE CAN GO STILL FURTHER.  IF CONSTITUTIONAL
AMENDMENT WAS THE ONLY MEANS BY WHICH ALL MEN AND, LATER, WOMEN, COULD
BE GUARANTEED THE RIGHT TO VOTE AT ALL, EVEN FOR FEDERAL OFFICERS, HOW
CAN IT BE THAT THE FAR LESS OBVIOUS RIGHT TO A PARTICULAR KIND OF
APPORTIONMENT OF STATE LEGISLATURES - A RIGHT TO WHICH IS OPPOSED A FAR
MORE PLAUSIBLE CONFLICTING INTEREST OF THE STATE THAN THE INTEREST
WHICH OPPOSES THE GENERAL RIGHT TO VOTE - CAN BE CONFERRED BY JUDICIAL
CONSTRUCTION OF THE FOURTEENTH AMENDMENT?  (FN70)  YET, UNLESS ONE
TAKES THE HIGHLY IMPLAUSIBLE VIEW THAT THE FOURTEENTH AMENDMENT
CONTROLS METHODS OF APPORTIONMENT BUT LEAVES THE RIGHT TO VOTE ITSELF
UNPROTECTED, THE CONCLUSION IS INESCAPABLE THAT THE COURT HAS, FOR
PURPOSES OF THESE CASES, RELEGATED THE FIFTEENTH AND NINETEENTH
AMENDMENTS TO THE SAME LIMBO OF CONSTITUTIONAL ANACHRONISMS TO WHICH
THE SECOND SECTION OF THE FOURTEENTH AMENDMENT HAS BEEN ASSIGNED. 

MENTION SHOULD BE MADE FINALLY OF THE DECISIONS OF THIS COURT WHICH
ARE DISREGARDED OR, MORE ACCURATELY, SILENTLY OVERRULED TODAY.  MINOR
V. HAPPERSETT, SUPRA, IN WHICH THE COURT HELD THAT THE FOURTEENTH
AMENDMENT DID NOT CONFER THE RIGHT TO VOTE ON ANYONE, HAS ALREADY BEEN
NOTED.  OTHER CASES ARE MORE DIRECTLY IN POINT.  IN COLEGROVE V.
BARRETT, 330 U.S. 804, THIS COURT DISMISSED "FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION" AN APPEAL FROM THE DISMISSAL OF A COMPLAINT ALLEGING
THAT THE ILLINOIS LEGISLATIVE APPORTIONMENT RESULTED IN "GROSS
INEQUALITY IN VOTING POWER" AND "GROSS AND ARBITRARY AND ATROCIOUS
DISCRIMINATION IN VOTING" WHICH DENIED THE PLAINTIFFS EQUAL PROTECTION
OF THE LAWS.  (FN71)  IN REMMEY V. SMITH, 102 F. SUPP. 708 (D.C.E.D.
PA.), A THREE-JUDGE DISTRICT COURT DISMISSED A COMPLAINT ALLEGING THAT
THE APPORTIONMENT OF THE PENNSYLVANIA LEGISLATURE DEPRIVED THE
PLAINTIFFS OF "CONSTITUTIONAL RIGHTS GUARANTEED TO THEM BY THE
FOURTEENTH AMENDMENT."  ID., AT 709.  THE DISTRICT COURT STATED THAT IT
WAS AWARE THAT THE PLAINTIFFS' ALLEGATIONS WERE "NOTORIOUSLY TRUE" AND
THAT "THE PRACTICAL DISENFRANCHISEMENT OF QUALIFIED ELECTORS IN CERTAIN
OF THE ELECTION DISTRICTS IN PHILADELPHIA COUNTY IS A MATTER OF COMMON
KNOWLEDGE."  ID., AT 710.  THIS COURT DISMISSED THE APPEAL "FOR THE
WANT OF A SUBSTANTIAL FEDERAL QUESTION."  342 U.S. 916. 

IN KIDD V. MCCANLESS, 200 TENN. 273, 292 S.W.2D 40, THE SUPREME COURT
OF TENNESSEE DISMISSED AN ACTION FOR A DECLARATORY JUDGMENT THAT THE
TENNESSEE APPORTIONMENT ACT OF 1901 WAS UNCONSTITUTIONAL.  THE
COMPLAINT ALLEGED THAT "A MINORITY OF APPROXIMATELY 37% OF THE VOTING
POPULATION OF THE STATE NOW ELECTS AND CONTROLS 20 OF THE 33 MEMBERS OF
THE SENATE; THAT A MINORITY OF 40% OF THE VOTING POPULATION OF THE
STATE NOW CONTROLS 63 OF THE 99 MEMBERS OF THE HOUSE OF
REPRESENTATIVES."  ID., AT 276, 292 S.W.2D, AT 42.  WITHOUT DISSENT,
THIS COURT GRANTED THE MOTION TO DISMISS THE APPEAL.  352 U.S. 920.  IN
RADFORD V. GARY, 145 F. SUPP. 541 (D.C.W.D. OKLA.), A THREE-JUDGE
DISTRICT COURT WAS CONVENED TO CONSIDER "THE COMPLAINT OF THE PLAINTIFF
TO THE EFFECT THAT THE EXISTING APPORTIONMENT STATUTES OF THE STATE OF
OKLAHOMA VIOLATE THE PLAIN MANDATE OF THE OKLAHOMA CONSTITUTION AND
OPERATE TO DEPRIVE HIM OF THE EQUAL PROTECTION OF THE LAWS GUARANTEED
BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES." 
ID., AT 542.  THE PLAINTIFF ALLEGED THAT HE WAS A RESIDENT AND VOTER IN
THE MOST POPULOUS COUNTY OF THE STATE, WHICH HAD ABOUT 15% OF THE TOTAL
POPULATION OF THE STATE BUT ONLY ABOUT 2% OF THE SEATS IN THE STATE
SENATE AND LESS THAN 4% OF THE SEATS IN THE HOUSE.   THE COMPLAINT
RECITED THE UNWILLINGNESS OR INABILITY OF THE BRANCHES OF THE STATE
GOVERNMENT TO PROVIDE RELIEF AND ALLEGED THAT THERE WAS NO STATE REMEDY
AVAILABLE.  THE DISTRICT COURT GRANTED A MOTION TO DISMISS.  THIS COURT
AFFIRMED WITHOUT DISSENT.  352 U.S. 991. 

EACH OF THESE RECENT CASES IS DISTINGUISHED ON SOME GROUND OR OTHER
IN BAKER V. CARR.  SEE 369 U.S., AT 235-236.  THEIR SUMMARY
DISPOSITIONS PREVENT CONSIDERATION WHETHER THESE AFTER-THE-FACT
DISTINCTIONS ARE REAL OR IMAGINARY.  THE FACT REMAINS, HOWEVER, THAT
BETWEEN 1947 AND 1957, FOUR CASES RAISING ISSUES PRECISELY THE SAME AS
THOSE DECIDED TODAY WERE PRESENTED TO THE COURT.  THREE WERE DISMISSED
BECAUSE THE ISSUES PRESENTED WERE THOUGHT INSUBSTANTIAL AND IN THE
FOURTH THE LOWER COURT'S DISMISSAL WAS AFFIRMED.  (FN72) 

I HAVE TRIED TO MAKE THE CATALOGUE COMPLETE, YET TO KEEP IT WITHIN
THE MANAGEABLE LIMITS OF A JUDICIAL OPINION.  IN MY JUDGMENT, TODAY'S
DECISIONS ARE REFUTED BY THE LANGUAGE OF THE AMENDMENT WHICH THEY
CONSTRUE AND BY THE INFERENCE FAIRLY TO BE DRAWN FROM SUBSEQUENTLY
ENACTED AMENDMENTS.  THEY ARE UNEQUIVOCALLY REFUTED BY HISTORY AND BY
CONSISTENT THEORY AND PRACTICE FROM THE TIME OF THE ADOPTION OF THE
FOURTEENTH AMENDMENT UNTIL TODAY. 

                                             II. 

THE COURT'S ELABORATION OF ITS NEW 'CONSTITUTIONAL" DOCTRINE
INDICATES HOW FAR - AND HOW UNWISELY - IT HAS STRAYED FROM THE
APPROPRIATE BOUNDS OF ITS AUTHORITY.  THE CONSEQUENCE OF TODAY'S
DECISION IS THAT IN ALL BUT THE HANDFUL OF STATES WHICH MAY ALREADY
SATISFY THE NEW REQUIREMENTS THE LOCAL DISTRICT COURT OR, IT MAY BE,
THE STATE COURTS, ARE GIVEN BLANKET AUTHORITY AND THE CONSTITUTIONAL
DUTY TO SUPERVISE APPORTIONMENT OF THE STATE LEGISLATURES.  IT IS
DIFFICULT TO IMAGINE A MORE INTOLERABLE AND INAPPROPRIATE INTERFERENCE
BY THE JUDICIARY WITH THE INDEPENDENT LEGISLATURES OF THE STATES. 

IN THE ALABAMA CASES (NOS. 23, 27, 41), THE DISTRICT COURT HELD
INVALID NOT ONLY EXISTING PROVISIONS OF THE STATE CONSTITUTION - WHICH
THIS COURT LIGHTLY DISMISSES WITH A WAVE OF THE SUPREMACY CLAUSE AND
THE REMARK THAT "IT MAKES NO DIFFERENCE WHETHER A STATE'S APPORTIONMENT
SCHEME IS EMBODIED IN ITS CONSTITUTION OR IN STATUTORY PROVISIONS,"
ANTE, P. 584 - BUT ALSO A PROPOSED AMENDMENT TO THE ALABAMA
CONSTITUTION WHICH HAD NEVER BEEN SUBMITTED TO THE VOTERS OF ALABAMA
FOR RATIFICATION, AND "STANDBY" LEGISLATION WHICH WAS NOT TO BECOME
EFFECTIVE UNLESS THE AMENDMENT WAS REJECTED (OR DECLARED
UNCONSTITUTIONAL) AND IN NO EVENT BEFORE 1966.  SIMS V. FRINK, 208 F.
SUPP. 431.  SEE ANTE, PP. 543-551.  BOTH OF THESE MEASURES HAD BEEN
ADOPTED ONLY NINE DAYS BEFORE, (FN73) AT AN EXTRAORDINARY SESSION OF
THE ALABAMA LEGISLATURE, CONVENED PURSUANT TO WHAT WAS VERY NEARLY A
DIRECTIVE OF THE DISTRICT COURT, SEE SIMS V. FRINK, 205 F. SUPP. 245,
248.  THE DISTRICT COURT FORMULATED ITS OWN PLAN FOR THE APPORTIONMENT
OF THE ALABAMA LEGISLATURE, BY PICKING AND CHOOSING AMONG THE
PROVISIONS OF THE LEGISLATIVE MEASURES.  208 F. SUPP., AT 441-442.  SEE
ANTE, P. 552.  BEYOND THAT, THE COURT WARNED THE LEGISLATURE THAT THERE
WOULD BE STILL FURTHER JUDICIAL REAPPORTIONMENT UNLESS THE LEGISLATURE,
LIKE IT OR NOT, UNDERTOOK THE TASK FOR ITSELF.  208 F. SUPP., AT 442. 
THIS COURT NOW STATES THAT THE DISTRICT COURT ACTED IN "A MOST PROPER
AND COMMENDABLE MANNER," ANTE, P. 586, AND APPROVES THE DISTRICT
COURT'S AVOWED INTENTION OF TAKING "SOME FURTHER ACTION" UNLESS THE
STATE LEGISLATURE ACTS BY 1966, ANTE, P. 587. 

IN THE MARYLAND CASE (NO. 29, POST, P. 656), THE STATE LEGISLATURE
WAS CALLED INTO SPECIAL SESSION AND ENACTED A TEMPORARY REAPPORTIONMENT
OF THE HOUSE OF DELEGATES, UNDER PRESSURE FROM THE STATE COURTS. 
(FN74)  THEREAFTER, THE MARYLAND COURT OF APPEALS HELD THAT THE
MARYLAND SENATE WAS CONSTITUTIONALLY APPORTIONED.  MARYLAND COMMITTEE
FOR FAIR REPRESENTATION V. TAWES, 229 MD. 406, 184 A.2D 715.  THIS
COURT NOW HOLDS THAT NEITHER BRANCH OF THE STATE LEGISLATURE MEETS
CONSTITUTIONAL REQUIREMENTS.  POST, P. 674.  THE COURT PRESUMES THAT
SINCE "THE MARYLAND CONSTITUTIONAL PROVISIONS RELATING TO LEGISLATIVE
APPORTIONMENT ARE HEREBY HELD UNCONSTITUTIONAL, THE MARYLAND
LEGISLATURE  ...  HAS THE INHERENT POWER TO ENACT AT LEAST TEMPORARY
REAPPORTIONMENT LEGISLATION PENDING ADOPTION OF STATE CONSTITUTIONAL
PROVISIONS" WHICH SATISFY THE FEDERAL CONSTITUTION, ID., AT 675.  ON
THIS PREMISE, THE COURT CONCLUDES THAT THE MARYLAND COURTS NEED NOT
"FEEL OBLIGED TO TAKE FURTHER AFFIRMATIVE ACTION" NOW, BUT THAT "UNDER
NO CIRCUMSTANCES SHOULD THE 1966 ELECTION OF MEMBERS OF THE MARYLAND
LEGISLATURE BE PERMITTED TO BE CONDUCTED PURSUANT TO THE EXISTING OR
ANY OTHER UNCONSTITUTIONAL PLAN."  ID., AT 676. 

IN THE VIRGINIA CASE (NO. 69, POST, P. 678), THE STATE LEGISLATURE IN
1962 COMPLIED WITH THE STATE CONSTITUTIONAL REQUIREMENT OF REGULAR
REAPPORTIONMENT.  (FN75)  TWO DAYS LATER, A COMPLAINT WAS FILED IN THE
DISTRICT COURT.  (FN76)  EIGHT MONTHS LATER, THE LEGISLATIVE
REAPPORTIONMENT WAS DECLARED UNCONSTITUTIONAL.  MANN V. DAVIS, 213 F.
SUPP. 577.  THE DISTRICT COURT GAVE THE STATE LEGISLATURE TWO MONTHS
WITHIN WHICH TO REAPPORTION ITSELF IN SPECIAL SESSION, UNDER PENALTY OF
BEING REAPPORTIONED BY THE COURT.  (FN77)  ONLY A STAY GRANTED BY A
MEMBER OF THIS COURT SLOWED THE PROCESS; (FN78) IT IS PLAIN THAT NO
STAY WILL BE FORTHCOMING IN THE FUTURE.  THE VIRGINIA LEGISLATURE IS TO
BE GIVEN "AN ADEQUATE OPPORTUNITY TO ENACT A VALID PLAN"; BUT IF IT
FAILS "TO ACT PROMPTLY IN REMEDYING THE CONSTITUTIONAL DEFECTS IN THE
STATE'S LEGISLATIVE APPORTIONMENT PLAN," THE DISTRICT COURT IS TO "TAKE
FURTHER ACTION."  POST, P. 693. 

IN DELAWARE (NO. 307, POST, P. 695), THE DISTRICT COURT ENTERED AN
ORDER ON JULY 25, 1962, WHICH STAYED PROCEEDINGS UNTIL AUGUST 7, 1962,
"IN THE HOPE AND EXPECTATION" THAT THE GENERAL ASSEMBLY WOULD TAKE
"SOME APPROPRIATE ACTION" IN THE INTERVENING 13 DAYS.  SINCOCK V.
TERRY, 207 F. SUPP. 205, 207.  BY WAY OF PRODDING, PRESUMABLY, THE
COURT NOTED THAT IF NO LEGISLATIVE ACTION WERE TAKEN AND THE COURT
SUSTAINED THE PLAINTIFFS' CLAIM, "THE PRESENT GENERAL ASSEMBLY AND ANY
SUBSEQUENT GENERAL ASSEMBLY, THE MEMBERS OF WHICH WERE ELECTED PURSUANT
TO SECTION 2 OF ARTICLE 2 (THE CHALLENGED PROVISIONS OF THE DELAWARE
CONSTITUTION), MIGHT BE HELD NOT TO BE A DE JURE LEGISLATURE AND ITS
LEGISLATIVE ACTS MIGHT BE HELD INVALID AND UNCONSTITUTIONAL."  ID., AT
205-206.  FIVE DAYS LATER, ON JULY 30, 1962, THE GENERAL ASSEMBLY
APPROVED A PROPOSED AMENDMENT TO THE STATE CONSTITUTION.  ON AUGUST 7,
1962, THE DISTRICT COURT ENTERED AN ORDER DENYING THE DEFENDANTS'
MOTION TO DISMISS.  THE COURT SAID THAT IT DID NOT WISH TO SUBSTITUTE
ITS JUDGMENT "FOR THE COLLECTIVE WISDOM OF THE GENERAL ASSEMBLY OF
DELAWARE," BUT THAT "IN THE LIGHT OF ALL THE CIRCUMSTANCES," IT HAD TO
PROCEED PROMPTLY.  210 F. SUPP. 395, 396.  ON OCTOBER 16, 1962, THE
COURT DECLINED TO ENJOIN THE CONDUCT OF ELECTIONS IN NOVEMBER.  210 F.
SUPP. 396.  THE COURT WENT ON TO EXPRESS ITS REGRET THAT THE GENERAL
ASSEMBLY HAD NOT ADOPTED THE COURT'S SUGGESTION, SEE 207 F. SUPP., AT
206-207, THAT THE DELAWARE CONSTITUTION BE AMENDED TO MAKE
APPORTIONMENT A STATUTORY RATHER THAN A CONSTITUTIONAL MATTER, SO AS TO
FACILITATE FURTHER CHANGES IN APPORTIONMENT WHICH MIGHT BE REQUIRED. 
210 F. SUPP., AT 401.  IN JANUARY 1963, THE GENERAL ASSEMBLY AGAIN
APPROVED THE PROPOSED AMENDMENT OF THE APPORTIONMENT PROVISIONS OF THE
DELAWARE CONSTITUTION, WHICH THEREBY BECAME EFFECTIVE ON JANUARY 17,
1963.  (FN79)  THREE MONTHS LATER, ON APRIL 17, 1963, THE DISTRICT
COURT REACHED "THE RELUCTANT CONCLUSION" THAT ART. II, SEC. 2, OF THE
DELAWARE CONSTITUTION WAS UNCONSTITUTIONAL, WITH OR WITHOUT THE 1963
AMENDMENT.  SINCOCK V. DUFFY, 215 F. SUPP. 169, 189.  OBSERVING THAT
"THE STATE OF DELAWARE, THE GENERAL ASSEMBLY, AND THIS COURT ALL SEEM
TO BE TRAPPED IN A KIND OF BOX OF TIME," ID., AT 191, THE COURT GAVE
THE GENERAL ASSEMBLY UNTIL OCTOBER 1, 1963, TO ADOPT ACCEPTABLE
PROVISIONS FOR APPORTIONMENT.  ON MAY 20, 1963, THE DISTRICT COURT
ENJOINED THE DEFENDANTS FROM CONDUCTING ANY ELECTIONS, INCLUDING THE
GENERAL ELECTION SCHEDULED FOR NOVEMBER 1964, PURSUANT TO THE OLD OR
THE NEW CONSTITUTIONAL PROVISIONS.  (FN80)  THIS COURT NOW APPROVES ALL
THESE PROCEEDINGS, NOTING PARTICULARLY THAT IN ALLOWING THE 1962
ELECTIONS TO GO FORWARD, "THE DISTRICT COURT ACTED IN A WISE AND
TEMPERATE MANNER."  POST, P. 710.  (FN81) 

RECORDS SUCH AS THESE IN THE CASES DECIDED TODAY ARE SURE TO BE
DUPLICATED IN MOST OF THE OTHER STATES IF THEY HAVE NOT BEEN ALREADY. 
THEY PRESENT A JARRING PICTURE OF COURTS THREATENING TO TAKE ACTION IN
AN AREA WHICH THEY HAVE NO BUSINESS ENTERING, INEVITABLY ON THE BASIS
OF POLITICAL JUDGMENTS WHICH THEY ARE INCOMPETENT TO MAKE.  THEY SHOW
LEGISLATURES OF THE STATES MEETING IN HASTE AND DELIBERATING AND
DECIDING IN HASTE TO AVOID THE THREAT OF JUDICIAL INTERFERENCE.  SO FAR
AS I CAN TELL, THE COURT'S ONLY RESPONSE TO THIS UNSEEMLY STATE OF
AFFAIRS IS PONDEROUS INSISTENCE THAT "A DENIAL OF CONSTITUTIONALLY
PROTECTED RIGHTS DEMANDS JUDICIAL PROTECTION," ANTE, P. 566.  BY THUS
REFUSING TO RECOGNIZE THE BEARING WHICH A POTENTIAL FOR CONFLICT OF
THIS KIND MAY HAVE ON THE QUESTION WHETHER THE CLAIMED RIGHTS ARE IN
FACT CONSTITUTIONALLY ENTITLED TO JUDICIAL PROTECTION, THE COURT
ASSUMES, RATHER THAN SUPPORTS, ITS CONCLUSION.    IT SHOULD BY NOW BE
OBVIOUS THAT THESE CASES DO NOT MARK THE END OF REAPPORTIONMENT
PROBLEMS IN THE COURTS.  PREDICTIONS ONCE MADE THAT THE COURTS WOULD
NEVER HAVE TO FACE THE PROBLEM OF ACTUALLY WORKING OUT AN APPORTIONMENT
HAVE PROVED FALSE.  THIS COURT, HOWEVER, CONTINUES TO AVOID THE
CONSEQUENCES OF ITS DECISIONS, SIMPLY ASSURING US THAT THE LOWER COURTS
"CAN AND  ... WILL WORK OUT MORE CONCRETE AND SPECIFIC STANDARDS,"
ANTE, P. 578.  DEEMING IT "EXPEDIENT" NOT TO SPELL OUT "PRECISE
CONSTITUTIONAL TESTS," THE COURT CONTENTS ITSELF WITH STATING "ONLY A
FEW RATHER GENERAL CONSIDERATIONS."  IBID.    GENERALITIES CANNOT
OBSCURE THE COLD TRUTH THAT CASES OF THIS TYPE ARE NOT AMENABLE TO THE
DEVELOPMENT OF JUDICIAL STANDARDS.  NO SET OF STANDARDS CAN GUIDE A
COURT WHICH HAS TO DECIDE HOW MANY LEGISLATIVE DISTRICTS A STATE SHALL
HAVE, OR WHAT THE SHAPE OF THE DISTRICTS SHALL BE, OR WHERE TO DRAW A
PARTICULAR DISTRICT LINE.  NO JUDICIALLY MANAGEABLE STANDARD CAN
DETERMINE WHETHER A STATE SHOULD HAVE SINGLE-MEMBER DISTRICTS OR
MULTIMEMBER DISTRICTS OR SOME COMBINATION OF BOTH.  NO SUCH STANDARD
CAN CONTROL THE BALANCE BETWEEN KEEPING UP WITH POPULATION SHIFTS AND
HAVING STABLE DISTRICTS.  IN ALL THESE RESPECTS, THE COURTS WILL BE
CALLED UPON TO MAKE PARTICULAR DECISIONS WITH RESPECT TO WHICH A
PRINCIPLE OF EQUALLY POPULATED DISTRICTS WILL BE OF NO ASSISTANCE
WHATSOEVER.  QUITE OBVIOUSLY, THERE ARE LIMITLESS POSSIBILITIES FOR
DISTRICTING CONSISTENT WITH SUCH A PRINCIPLE.   NOR CAN THESE PROBLEMS
BE AVOIDED BY JUDICIAL RELIANCE ON LEGISLATIVE JUDGMENTS SO FAR AS
POSSIBLE.   RESHAPING OR COMBINING ONE OR TWO DISTRICTS, OR MODIFYING
JUST A FEW DISTRICT LINES, IS NO LESS A MATTER OF CHOOSING AMONG MANY
POSSIBLE SOLUTIONS, WITH VARYING POLITICAL CONSEQUENCES, THAN
REAPPORTIONMENT BROADSIDE.  (FN82) 

THE COURT IGNORES ALL THIS, SAYING ONLY THAT "WHAT IS MARGINALLY
PERMISSIBLE IN ONE STATE MAY BE UNSATISFACTORY IN ANOTHER, DEPENDING ON
THE PARTICULAR CIRCUMSTANCES OF THE CASE," ANTE, P. 578.  IT IS WELL TO
REMEMBER THAT THE PRODUCT OF TODAY'S DECISIONS WILL NOT BE READJUSTMENT
OF A FEW DISTRICTS IN A FEW STATES WHICH MOST GLARINGLY DEPART FROM THE
PRINCIPLE OF EQUALLY POPULATED DISTRICTS.  IT WILL BE A
REDETERMINATION, EXTENSIVE IN MANY CASES, OF LEGISLATIVE DISTRICTS IN
ALL BUT A FEW STATES. 

ALTHOUGH THE COURT - NECESSARILY, AS I BELIEVE - PROVIDES ONLY
GENERALITIES IN ELABORATION OF ITS MAIN THESIS, ITS OPINION
NEVERTHELESS FULLY DEMONSTRATES HOW FAR REMOVED THESE PROBLEMS ARE FROM
FIELDS OF JUDICIAL COMPETENCE.  RECOGNIZING THAT "INDISCRIMINATE
DISTRICTING" IS AN INVITATION TO "PARTISAN GERRYMANDERING," ANTE, PP.
578-579, THE COURT NEVERTHELESS EXCLUDES VIRTUALLY EVERY BASIS FOR THE
FORMATION OF ELECTORAL DISTRICTS OTHER THAN "INDISCRIMINATE
DISTRICTING."  IN ONE OR ANOTHER OF TODAY'S OPINIONS, THE COURT
DECLARES IT UNCONSTITUTIONAL FOR A STATE TO GIVE EFFECTIVE
CONSIDERATION TO ANY OF THE FOLLOWING IN ESTABLISHING LEGISLATIVE
DISTRICTS: 

(1)  HISTORY.  (FN83) 

(2)  "ECONOMIC OR OTHER SORTS OF GROUP INTERESTS."  (FN84) 

(3)  AREA.  (FN85) 

(4)  GEOGRAPHICAL CONSIDERATIONS.  (FN86) 

(5)  A DESIRE "TO INSURE EFFECTIVE REPRESENTATION FOR SPARSELY
SETTLED AREAS."  (FN87) 

(6)  "AVAILABILITY OF ACCESS OF CITIZENS TO THEIR REPRESENTATIVES." 
(FN88) 

(7)  THEORIES OF BICAMERALISM (EXCEPT THOSE APPROVED BY THE COURT). 
(FN89) 

(8)  OCCUPATION.  (FN90) 

(9)  "AN ATTEMPT TO BALANCE URBAN AND RURAL POWER."  (FN91) 

(10)  THE PREFERENCE OF A MAJORITY OF VOTERS IN THE STATE.  (FN92) 

SO FAR AS PRESENTLY APPEARS, THE ONLY FACTOR WHICH A STATE MAY
CONSIDER, APART FROM NUMBERS, IS POLITICAL SUBDIVISIONS.  BUT EVEN "A
CLEARLY RATIONAL STATE POLICY" RECOGNIZING THIS FACTOR IS
UNCONSTITUTIONAL IF "POPULATION IS SUBMERGED AS THE CONTROLLING
CONSIDERATION  ...  ."  (FN93) 

I KNOW OF NO PRINCIPLE OF LOGIC OR PRACTICAL OR THEORETICAL POLITICS,
STILL LESS ANY CONSTITUTIONAL PRINCIPLE, WHICH ESTABLISHES ALL OR ANY
OF THESE EXCLUSIONS.  CERTAIN IT IS THAT THE COURT'S OPINION DOES NOT
ESTABLISH THEM.  SO FAR AS THE COURT SAYS ANYTHING AT ALL ON THIS
SCORE, IT SAYS ONLY THAT "LEGISLATORS REPRESENT PEOPLE, NOT TREES OR
ACRES," ANTE, P. 562; THAT "CITIZENS, NOT HISTORY OR ECONOMIC
INTERESTS, CAST VOTES," ANTE, P. 580; THAT "PEOPLE, NOT LAND OR TREES
OR PASTURES, VOTE," IBID.  (FN94)  ALL THIS MAY BE CONCEDED.  BUT IT IS
SURELY EQUALLY OBVIOUS, AND, IN THE CONTEXT OF ELECTIONS, MORE
MEANINGFUL TO NOTE THAT PEOPLE ARE NOT CIPHERS AND THAT LEGISLATORS CAN
REPRESENT THEIR ELECTORS ONLY BY SPEAKING FOR THEIR INTERESTS -
ECONOMIC, SOCIAL, POLITICAL - MANY OF WHICH DO REFLECT THE PLACE WHERE
THE ELECTORS LIVE.  THE COURT DOES NOT ESTABLISH, OR INDEED EVEN
ATTEMPT TO MAKE A CASE FOR THE PROPOSITION THAT CONFLICTING INTERESTS
WITHIN A STATE CAN ONLY BE ADJUSTED BY DISREGARDING THEM WHEN VOTERS
ARE GROUPED FOR PURPOSES OF REPRESENTATION. 

                                        CONCLUSION. 

WITH THESE CASES THE COURT APPROACHES THE END OF THE THIRD ROUND SET
IN MOTION BY THE COMPLAINT FILED IN BAKER V. CARR.  WHAT IS DONE TODAY
DEEPENS MY CONVICTION THAT JUDICIAL ENTRY INTO THIS REALM IS PROFOUNDLY
ILL-ADVISED AND CONSTITUTIONALLY IMPERMISSIBLE.  AS I HAVE SAID BEFORE,
WESBERRY V. SANDERS, SUPRA, AT 48, I BELIEVE THAT THE VITALITY OF OUR
POLITICAL SYSTEM, ON WHICH IN THE LAST ANALYSIS ALL ELSE DEPENDS, IS
WEAKENED BY RELIANCE ON THE JUDICIARY FOR POLITICAL REFORM; IN TIME A
COMPLACENT BODY POLITIC MAY RESULT. 

THESE DECISIONS ALSO CUT DEEPLY INTO THE FABRIC OF OUR FEDERALISM. 
WHAT MUST FOLLOW FROM THEM MAY EVENTUALLY APPEAR TO BE THE PRODUCT OF
STATE LEGISLATURES.  NEVERTHELESS, NO THINKING PERSON CAN FAIL TO
RECOGNIZE THAT THE AFTERMATH OF THESE CASES, HOWEVER DESIRABLE IT MAY
BE THOUGHT IN ITSELF, WILL HAVE BEEN ACHIEVED AT THE COST OF A RADICAL
ALTERATION IN THE RELATIONSHIP BETWEEN THE STATES AND THE FEDERAL
GOVERNMENT, MORE PARTICULARLY THE FEDERAL JUDICIARY.  ONLY ONE WHO HAS
AN OVERBEARING IMPATIENCE WITH THE FEDERAL SYSTEM AND ITS POLITICAL
PROCESSES WILL BELIEVE THAT THAT COST WAS NOT TOO HIGH OR WAS
INEVITABLE. 

FINALLY, THESE DECISIONS GIVE SUPPORT TO A CURRENT MISTAKEN VIEW OF
THE CONSTITUTION AND THE CONSTITUTIONAL FUNCTION OF THIS COURT.  THIS
VIEW, IN A NUTSHELL, IS THAT EVERY MAJOR SOCIAL ILL IN THIS COUNTRY CAN
FIND ITS CURE IN SOME CONSTITUTIONAL "PRINCIPLE," AND THAT THIS COURT
SHOULD "TAKE THE LEAD" IN PROMOTING REFORM WHEN OTHER BRANCHES OF
GOVERNMENT FAIL TO ACT.  THE CONSTITUTION IS NOT A PANACEA FOR EVERY
BLOT UPON THE PUBLIC WELFARE, NOR SHOULD THIS COURT, ORDAINED AS A
JUDICIAL BODY, BE THOUGHT OF AS A GENERAL HAVEN FOR REFORM MOVEMENTS. 
THE CONSTITUTION IS AN INSTRUMENT OF GOVERNMENT, FUNDAMENTAL TO WHICH
IS THE PREMISE THAT IN A DIFFUSION OF GOVERNMENTAL AUTHORITY LIES THE
GREATEST PROMISE THAT THIS NATION WILL REALIZE LIBERTY FOR ALL ITS
CITIZENS.  THIS COURT, LIMITED IN FUNCTION IN ACCORDANCE WITH THAT
PREMISE, DOES NOT SERVE ITS HIGH PURPOSE WHEN IT EXCEEDS ITS AUTHORITY,
EVEN TO SATISFY JUSTIFIED IMPATIENCE WITH THE SLOW WORKINGS OF THE
POLITICAL PROCESS.   FOR WHEN, IN THE NAME OF CONSTITUTIONAL
INTERPRETATION, THE COURT ADDS SOMETHING TO THE CONSTITUTION THAT WAS
DELIBERATELY EXCLUDED FROM IT, THE COURT IN REALITY SUBSTITUTES ITS
VIEW OF WHAT SHOULD BE SO FOR THE AMENDING PROCESS. 

I DISSENT IN EACH OF THESE CASES, BELIEVING THAT IN NONE OF THEM HAVE
THE PLAINTIFFS STATED A CAUSE OF ACTION.  TO THE EXTENT THAT BAKER V.
CARR, EXPRESSLY OR BY IMPLICATION, WENT BEYOND A DISCUSSION OF
JURISDICTIONAL DOCTRINES INDEPENDENT OF THE SUBSTANTIVE ISSUES INVOLVED
HERE, IT SHOULD BE LIMITED TO WHAT IT IN FACT WAS:  AN EXPERIMENT IN
VENTURESOME CONSTITUTIONALISM.  I WOULD REVERSE THE JUDGMENTS OF THE
DISTRICT COURTS IN NOS. 23, 27, AND 41 (ALABAMA), NO. 69 (VIRGINIA),
AND NO. 307 (DELAWARE), AND REMAND WITH DIRECTIONS TO DISMISS THE
COMPLAINTS.  I WOULD AFFIRM THE JUDGMENTS OF THE DISTRICT COURTS IN NO.
20 (NEW YORK), AND NO. 508 (COLORADO), AND OF THE COURT OF APPEALS OF
MARYLAND IN NO. 29. 

FN1  ALABAMA, COLORADO, DELAWARE, MARYLAND, NEW YORK, VIRGINIA. 

FN2  IN THE VIRGINIA CASE, DAVIS V. MANN, POST, P. 678, THE
DEFENDANTS INTRODUCED AN EXHIBIT PREPARED BY THE STAFF OF THE BUREAU OF
PUBLIC ADMINISTRATION OF THE UNIVERSITY OF VIRGINIA IN WHICH THE
VIRGINIA LEGISLATURE, NOW HELD TO BE UNCONSTITUTIONALLY APPORTIONED,
WAS RANKED EIGHTH AMONG THE 50 STATES IN "REPRESENTATIVENESS," WITH
POPULATION TAKEN AS THE BASIS OF REPRESENTATION.  THE COURT NOTES THAT
BEFORE THE END OF 1962, LITIGATION ATTACKING THE APPORTIONMENT OF STATE
LEGISLATURES HAD BEEN INSTITUTED IN AT LEAST 34 STATES.  ANTE, P. 556,
NOTE 30.  SEE INFRA, PP.  610-611. 

FN3  SEE BAKER V. CARR, 369 U.S. 186, 330, AND THE DISSENTING OPINION
OF FRANKFURTER, J., IN WHICH I JOINED, ID., AT 266; GRAY V. SANDERS,
372 U.S. 368, 382; WESBERRY V. SANDERS, 376 U.S. 1, 20. 

FN4  THAT CLAUSE, WHICH MANIFESTLY HAS NO BEARING ON THE CLAIMS MADE
IN THESE CASES, SEE V ELLIOT'S DEBATES ON THE ADOPTION OF THE FEDERAL
CONSTITUTION (1845), 332-333, COULD NOT IN ANY EVENT BE THE FOUNDATION
FOR JUDICIAL RELIEF.  LUTHER V. BORDEN, 7 HOW.  1, 42-44; OHIO EX REL.
BRYANT V. AKRON METROPOLITAN PARK DISTRICT, 281 U.S. 74, 79-80;
HIGHLAND FARMS DAIRY, INC., V. AGNEW, 300 U.S. 608, 612.  IN BAKER V.
CARR, SUPRA, AT 227, THE COURT STATED THAT RELIANCE ON THE REPUBLICAN
FORM OF GOVERNMENT CLAUSE "WOULD BE FUTILE." 

FN5  IT IS FAIR TO SAY THAT, BEYOND DISCUSSION OF A LARGE NUMBER OF
CASES HAVING NO RELEVANCE TO THIS QUESTION, THE COURT'S VIEWS ON THIS
SUBJECT WERE FULLY STATED IN THE COMPASS OF A SINGLE SENTENCE:
"JUDICIAL STANDARDS UNDER THE EQUAL PROTECTION CLAUSE ARE WELL
DEVELOPED AND FAMILIAR, AND IT HAS BEEN OPEN TO COURTS SINCE THE
ENACTMENT OF THE FOURTEENTH AMENDMENT TO DETERMINE, IF ON THE
PARTICULAR FACTS THEY MUST, THAT A DISCRIMINATION REFLECTS NO POLICY,
BUT SIMPLY ARBITRARY AND CAPRICIOUS ACTION."  369 U.S., AT 226. 

EXCEPT PERHAPS FOR THE "CRAZY QUILT" DOCTRINE OF MY BROTHER CLARK,
369 U.S., AT 251, NOTHING IS ADDED TO THIS BY ANY OF THE CONCURRING
OPINIONS, ID., AT 241, 265. 

FN6  THE CRYPTIC REMANDS IN SCHOLLE V. HARE, 369 U.S. 429, AND WMCA,
INC., V. SIMON, 370 U.S. 190, ON THE AUTHORITY OF BAKER, HAD NOTHING TO
SAY ON THE QUESTION NOW BEFORE THE COURT. 

FN7  SEE THE JOURNAL OF THE COMMITTEE, REPRINTED IN KENDRICK, THE
JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION (1914), 83
117. 

FN8  SEE THE DEBATES IN CONGRESS, CONG. GLOBE, 39TH CONG., 1ST SESS.,
2459-3149, PASSIM (1866) (HEREAFTER GLOBE). 

FN9  GLOBE 3040. 

FN10  GLOBE 2265, 2286. 

FN11  AS REPORTED IN THE HOUSE.  GLOBE 2286.  FOR PRIOR VERSIONS OF
THE AMENDMENT IN THE RECONSTRUCTION COMMITTEE, SEE KENDRICK, OP. CIT.,
SUPRA, NOTE 7, 83-117.  THE WORK OF THE RECONSTRUCTION COMMITTEE IS
DISCUSSED IN KENDRICK, SUPRA, AND FLACK, THE ADOPTION OF THE FOURTEENTH
AMENDMENT (1908), 55-139, PASSIM. 

FN12  GLOBE 2459. 

FN13  IBID.  STEVENS WAS REFERRING TO A PROPOSED AMENDMENT TO THE
CONSTITUTION WHICH PROVIDED THAT "WHENEVER THE ELECTIVE FRANCHISE SHALL
BE DENIED OR ABRIDGED IN ANY STATE ON ACCOUNT OF RACE OR COLOR, ALL
PERSONS THEREIN OF SUCH RACE OR COLOR SHALL BE EXCLUDED FROM THE BASIS
OF REPRESENTATION."  GLOBE 535.  IT PASSED THE HOUSE, ID., AT 538, BUT
DID NOT MUSTER THE NECESSARY TWO-THIRDS VOTE IN THE SENATE, ID., AT
1289. 

FN14  GLOBE 2459. 

FN15  IBID. 

FN16  IBID. 

FN17  IBID. 

FN18  GLOBE 2460. 

FN19  KENDRICK, OP. CIT., SUPRA, NOTE 7, 87, 106; FLACK, OP. CIT.,
SUPRA, NOTE 11, 60-68, 71. 

FN20  GLOBE 2542. 

FN21  IBID.  IT IS EVIDENT FROM THE CONTEXT OF THE REFERENCE TO A
REPUBLICAN GOVERNMENT THAT BINGHAM DID NOT REGARD LIMITATIONS ON THE
RIGHT TO VOTE OR THE DENIAL OF THE VOTE TO SPECIFIED CATEGORIES OF
INDIVIDUALS AS VIOLATING THE GUARANTEE OF A REPUBLICAN FORM OF
GOVERNMENT. 

FN22  IBID. 

FN23  REPRESENTATIVE ROGERS, WHO VOTED AGAINST THE RESOLUTION, GLOBE
2545, SUGGESTED THAT THE RIGHT TO VOTE MIGHT BE COVERED BY THE
PRIVILEGES AND IMMUNITIES CLAUSE.  GLOBE 2538.  BUT IMMEDIATELY
THEREAFTER HE DISCUSSED THE POSSIBILITY THAT THE SOUTHERN STATES MIGHT
"REFUSE TO ALLOW THE NEGROES TO VOTE."  IBID. 

FN24  GLOBE 2545. 

FN25  GLOBE 2766. 

FN26  IBID. 

FN27  IBID. 

FN28  GLOBE 3042. 

FN29  GLOBE 3149. 

FN30  SUCH EVIDENCE AS THERE IS, MOSTLY COMMITTEE REPORTS AND
MESSAGES TO THE LEGISLATURES FROM GOVERNORS OF THE STATES, IS TO THE
SAME EFFECT AS THE EVIDENCE FROM THE DEBATES IN THE CONGRESS.  SEE ARK.
HOUSE J. 288 (1866-1867); FLA. SEN. J. 8-10 (1866); IND. HOUSE J. 47
48, 50-51 (1867); MASS. LEGIS.  DOC., HOUSE DOC. NO. 149, 4-14, 16-17,
23, 24, 25-26 (1867); MO. SEN. J. 14 (1867); N.J. SEN. J. 7 (EXTRA
SESS. 1866); N.C. SEN. J. 96-97, 98-99 (1866-1867); TENN. HOUSE J. 12
15 (1865-1866); TENN. SEN. J. 8 (EXTRA SESS. 1866); VA. HOUSE J. &
DOC., DOC. NO. 1, 35 (1866-1867); WIS. SEN. J. 33, 101-103 (1867). 
CONTRA:  S.C. HOUSE J. 34 (1866); TEX. SEN. J. 422 (1866 APP.). 

FOR AN ACCOUNT OF THE PROCEEDINGS IN THE STATE LEGISLATURES AND
CITATIONS TO THE PROCEEDINGS, SEE FAIRMAN, "DOES THE FOURTEENTH
AMENDMENT INCORPORATE THE BILL OF RIGHTS?"  2 STAN.  L. REV. 5, 81-126
(1949). 

FN31  CONN. CONST., 1818, ART. THIRD, SEC. 3 (TOWNS); N.H. CONST.,
1792, PART SECOND, SEC. XXVI (DIRECT TAXES PAID); N.J. CONST., 1844,
ART. IV, SEC. II, CL. 1 (COUNTIES); R.I.  CONST., 1842, ART. VI, SEC. 1
(TOWNS AND CITIES); VT. CONST., 1793, C. II, SEC. 7 (TOWNS). 

IN NONE OF THESE STATES WAS THE OTHER HOUSE APPORTIONED STRICTLY
ACCORDING TO POPULATION.  CONN. CONST., 1818, AMEND. II; N.H. CONST.,
1792, PART SECOND, SECS. IX-XI; N.J. CONST., 1844, ART. IV, SEC. III,
CL. 1; R.I. CONST., 1842, ART. V, SEC. 1; VT. CONST., 1793, AMEND. 23. 
FN32  IOWA CONST., 1857, ART. III, SEC. 35; KAN. CONST., 1859, ART.
2, SEC. 2, ART. 10, SEC. 1; ME. CONST., 1819, ART. IV-PART FIRST, SEC.
3; MICH. CONST., 1850, ART. IV, SEC. 3; MO. CONST., 1865, ART. IV, SEC.
2; N.Y. CONST., 1846, ART. III, SEC. 5; OHIO CONST., 1851, ART. XI,
SECS. 2-5; PA. CONST., 1838, ART. I, SECS. 4, 6, 7, AS AMENDED; TENN.
CONST., 1834, ART. II, SEC. 5; W.VA. CONST., 1861-1863, ART. IV, SEC.
9. 

FN33  NINTH CENSUS OF THE UNITED STATES, STATISTICS OF POPULATION
(1872)(HEREAFTER CENSUS), 49.  THE POPULATION FIGURES, HERE AND
HEREAFTER, ARE FOR THE YEAR 1870, WHICH PRESUMABLY BEST REFLECT THE
FIGURES FOR THE YEARS 1866-1870.  ONLY THE FIGURES FOR 1860 WERE
AVAILABLE AT THAT TIME, OF COURSE, AND THEY WOULD HAVE BEEN USED BY
ANYONE INTERESTED IN POPULATION STATISTICS.  SEE, E.G., GLOBE 3028
(REMARKS OF SENATOR JOHNSON). 

THE METHOD OF APPORTIONMENT IS CONTAINED IN N.J. CONST., 1844, ART.
IV, SEC. II, CL. 1. 

FN34  N.J. CONST., 1844, ART. IV, SEC. III, CL. 1.  CENSUS 49. 

FN35  IBID. 

FN36  N.Y. CONST., 1846, ART. III, SECS. 2, 5.  CENSUS 50-51. 

FN37  IBID. 

FN38  IBID. 

FN39  THERE WERE 14 COUNTIES, CENSUS 67, EACH OF WHICH WAS ENTITLED
TO AT LEAST ONE OUT OF A TOTAL OF 30 SEATS.  VT. CONST., 1793, AMEND.
23. 

FN40  CENSUS 67. 

FN41  ACT OF MAR. 2, 1867, SEC. 5, 14 STAT. 429.  SEE ALSO ACT OF
JUNE 25, 1868, 15 STAT. 73, DECLARING THAT THE STATES OF NORTH
CAROLINA, SOUTH CAROLINA, LOUISIANA, GEORGIA, ALABAMA, AND FLORIDA,
WOULD BE ADMITTED TO REPRESENTATION IN CONGRESS WHEN THEIR LEGISLATURES
HAD RATIFIED THE FOURTEENTH AMENDMENT.  OTHER CONDITIONS WERE ALSO
IMPOSED, INCLUDING A REQUIREMENT THAT GEORGIA NULLIFY CERTAIN
PROVISIONS OF ITS CONSTITUTION.  IBID.  ARKANSAS, WHICH HAD ALREADY
RATIFIED THE FOURTEENTH AMENDMENT, WAS READMITTED BY ACT OF JUNE 22,
1868, 15 STAT. 72.  VIRGINIA WAS READMITTED BY ACT OF JAN. 26, 1870, 16
STAT. 62; MISSISSIPPI BY ACT OF FEB. 23, 1870, 16 STAT. 67; AND TEXAS
BY ACT OF MAR. 30, 1870, 16 STAT. 80.  GEORGIA WAS NOT FINALLY
READMITTED UNTIL LATER, BY ACT OF JULY 15, 1870, 16 STAT. 363. 

FN42  DISCUSSING THE BILL WHICH EVENTUATED IN THE ACT OF JUNE 25,
1868, SEE NOTE 41, SUPRA, THADDEUS STEVENS SAID: 

"NOW, SIR, WHAT IS THE PARTICULAR QUESTION WE ARE CONSIDERING?  FIVE
OR SIX STATES HAVE HAD SUBMITTED TO THEM THE QUESTION OF FORMING
CONSTITUTIONS FOR THEIR OWN GOVERNMENT.  THEY HAVE VOLUNTARILY FORMED
SUCH CONSTITUTIONS, UNDER THE DIRECTION OF THE GOVERNMENT OF THE UNITED
STATES ...  .  THEY HAVE SENT US THEIR CONSTITUTIONS.  THOSE
CONSTITUTIONS HAVE BEEN PRINTED AND LAID BEFORE US.  WE HAVE LOOKED AT
THEM; WE HAVE PRONOUNCED THEM REPUBLICAN IN FORM; AND ALL WE PROPOSE TO
REQUIRE IS THAT THEY SHALL REMAIN SO FOREVER.  SUBJECT TO THIS
REQUIREMENT, WE ARE WILLING TO ADMIT THEM INTO THE UNION."  CONG.
GLOBE, 40TH CONG., 2D SESS., 2465 (1868).  SEE ALSO THE REMARKS OF MR.
BUTLER, INFRA, P. 606. 

THE CLOSE ATTENTION GIVEN THE VARIOUS CONSTITUTIONS IS ATTESTED BY
THE ACT OF JUNE 25, 1868, WHICH CONDITIONED GEORGIA'S READMISSION ON
THE DELETION OF "THE FIRST AND THIRD SUBDIVISIONS OF SECTION SEVENTEEN
OF THE FIFTH ARTICLE OF THE CONSTITUTION OF SAID STATE, EXCEPT THE
PROVISO TO THE FIRST SUBDIVISION  ...  ."  15 STAT. 73.  THE SECTIONS
INVOLVED ARE PRINTED IN SEN. EX. DOC.  NO. 57, 40TH CONG., 2D SESS., 14
15. 

COMPARE UNITED STATES V. FLORIDA, 363 U.S. 121, 124-127. 

FN43  SEE, E.G., CONG. GLOBE, 40TH CONG., 2D SESS., 2412-2413, 2858
2860, 2861-2871, 2895-2900, 2901-2904, 2927-2935, 2963-2970, 2998-3022,
3023-3029 (1868). 

FN44 CONG. GLOBE, 40TH CONG., 2D SESS., 3090-3091 (1868). 

FN45  ID., AT 3092. 

FN46  ALA. CONST., 1867, ART. VIII, SEC. 1; FLA. CONST., 1868, ART.
XIV; GA. CONST., 1868, ART. III, SEC. 3, PARA. 1; LA. CONST., 1868,
TIT. II, ART. 20; N.C. CONST., 1868, ART. II, SEC. 6; S.C. CONST.,
1868, ART. II, SECS. 6,8. 

FN47  N.C. CONST., 1868, ART. II, SEC. 6.  THERE WERE 90 COUNTIES. 
CENSUS 52-53. 

FN48  IBID. 

FN49  S.C. CONST., 1868, ART. II, SEC. 8; CENSUS 60. 

FN50  FLA. CONST., 1868, ART. XIV. 

FN51  CENSUS 18-19. 

FN52  ALA. CONST., 1875, ART. IX, SECS. 2, 3; ALA. CONST., 1901, ART.
IX, SECS. 198, 199. 

FN53 FLA. CONST., 1885, ART. VII, SEC. 3. 

FN54  GA. CONST., 1877, ART. III, SEC. III. 

FN55  LA. CONST., 1879, ART. 16. 

FN56  MISS.  CONST., 1890, ART. 13, SEC. 256. 

FN57  MO. CONST., 1875, ART. IV, SEC. 2. 

FN58  MONT. CONST., 1889, ART. V, SEC. 4, ART. VI, SEC. 4. 

FN59  N.H. CONST., 1792, PART SECOND, SECS IX-XI, XXVI, AS AMENDED. 

FN60  N.H. CONST., 1902, PART SECOND, ARTS. 9, 10, 25. 

FN61  N.Y. CONST., 1894, ART. III, SEC. 4. 

FN62  N.Y. CONST., 1894, ART. III, SEC. 5. 

FN63  N.C. CONST., 1876, ART. II, SEC. 5. 

FN64  OKLA. CONST., 1907, ART. V, SEC. 10. 

FN65  PA. CONST., 1873, ART. II, SEC. 17. 

FN66  S.C. CONST., 1895, ART. III, SECS. 4, 6. 

FN67  UTAH CONST., 1895, ART. IX, SEC. 4. 

FN68  WYO. CONST., 1889, ART. III, SEC. 3. 

FN69  A TABULAR PRESENTATION OF CONSTITUTIONAL PROVISIONS FOR
APPORTIONMENT AS OF NOV. 1, 1961, APPEARS IN THE BOOK OF THE STATES
1962-1963, 58-62.  USING THIS TABLE, BUT DISREGARDING SOME DEVIATIONS
FROM A PURE POPULATION BASE, THE ADVISORY COMMISSION ON
INTERGOVERNMENTAL RELATIONS STATES THAT THERE ARE 15 STATES IN WHICH
THE LEGISLATURES ARE APPORTIONED SOLELY ACCORDING TO POPULATION. 
APPORTIONMENT OF STATE LEGISLATURES (1962), 12. 

FN70  COMPARE THE COURT'S STATEMENT IN GUINN V. UNITED STATES, 238
U.S. 347, 362: 

"  ...  BEYOND DOUBT THE FIFTEENTH AMENDMENT DOES NOT TAKE AWAY FROM
THE STATE GOVERNMENTS IN A GENERAL SENSE THE POWER OVER SUFFRAGE WHICH
HAS BELONGED TO THOSE GOVERNMENTS FROM THE BEGINNING AND WITHOUT THE
POSSESSION OF WHICH POWER THE WHOLE FABRIC UPON WHICH THE DIVISION OF
STATE AND NATIONAL AUTHORITY UNDER THE CONSTITUTION AND THE
ORGANIZATION OF BOTH GOVERNMENTS REST WOULD BE WITHOUT SUPPORT AND BOTH
THE AUTHORITY OF THE NATION AND THE STATE WOULD FALL TO THE GROUND.  IN
FACT, THE VERY COMMAND OF THE AMENDMENT RECOGNIZES THE POSSESSION OF
THE GENERAL POWER BY THE STATE, SINCE THE AMENDMENT SEEKS TO REGULATE
ITS EXERCISE AS TO THE PARTICULAR SUBJECT WITH WHICH IT DEALS." 

FN71  THE QUOTED PHRASES ARE TAKEN FROM THE JURISDICTIONAL STATEMENT,
PP. 13, 19. 

FN72  IN TWO EARLY CASES DEALING WITH PARTY PRIMARIES IN TEXAS, THE
COURT INDICATED THAT THE EQUAL PROTECTION CLAUSE DID AFFORD SOME
PROTECTION OF THE RIGHT TO VOTE.  NIXON V. HERNDON, 273 U.S. 536; NIXON
V. CONDON, 286 U.S. 73.  BEFORE AND AFTER THESE CASES, TWO CASES
DEALING WITH THE QUALIFICATIONS FOR ELECTORS IN OKLAHOMA HAD GONE OFF
ON THE FIFTEENTH AMENDMENT, GUINN V. UNITED STATES, 238 U.S. 347; LANE
V. WILSON, 307 U.S. 268.  THE RATIONALE OF THE TEXAS CASES IS ALMOST
CERTAINLY TO BE EXPLAINED BY THE COURT'S RELUCTANCE TO DECIDE THAT
PARTY PRIMARIES WERE A PART OF THE ELECTORAL PROCESS FOR PURPOSES OF
THE FIFTEENTH AMENDMENT.  SEE NEWBERRY V. UNITED STATES, 256 U.S. 232. 
ONCE THAT QUESTION WAS LAID TO REST IN UNITED STATES V. CLASSIC, 313
U.S. 299, THE COURT DECIDED SUBSEQUENT CASES INVOLVING TEXAS PARTY
PRIMARIES ON THE BASIS OF THE FIFTEENTH AMENDMENT.  SMITH V. ALLWRIGHT,
321 U.S. 649; TERRY V. ADAMS, 345 U.S. 461. 

THE RECENT DECISION IN GOMILLION V. LIGHTFOOT, 364 U.S. 339, THAT A
CONSTITUTIONAL CLAIM WAS STATED BY ALLEGATIONS THAT MUNICIPAL LINES HAD
BEEN REDRAWN WITH THE INTENTION OF DEPRIVING NEGROES OF THE RIGHT TO
VOTE IN MUNICIPAL ELECTIONS WAS BASED ON THE FIFTEENTH AMENDMENT.  ONLY
ONE JUSTICE, IN A CONCURRING OPINION, RELIED ON THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  ID., AT 349. 

FN73  THE MEASURES WERE ADOPTED ON JULY 12, 1962.  THE DISTRICT COURT
HANDED DOWN ITS OPINION ON JULY 21, 1962. 

FN74  IN REVERSING AN INITIAL ORDER OF THE CIRCUIT COURT FOR ANNE
ARUNDEL COUNTY DISMISSING THE PLAINTIFFS' COMPLAINT, THE MARYLAND COURT
OF APPEALS DIRECTED THE LOWER COURT TO HEAR EVIDENCE ON AND DETERMINE
THE PLAINTIFFS' CONSTITUTIONAL CLAIMS, AND, IF IT FOUND PROVISIONS OF
THE MARYLAND CONSTITUTION TO BE INVALID, TO "DECLARE THAT THE
LEGISLATURE HAS THE POWER, IF CALLED INTO SPECIAL SESSION BY THE
GOVERNOR AND SUCH ACTION BE DEEMED APPROPRIATE BY IT, TO ENACT A BILL
REAPPORTIONING ITS MEMBERSHIP FOR PURPOSES OF THE NOVEMBER, 1962,
ELECTION."  MARYLAND COMMITTEE FOR FAIR REPRESENTATION V. TAWES, 228
MD. 412, 438-439, 180 A.2D 656, 670.  ON REMAND, THE OPINION OF THE
CIRCUIT COURT INCLUDED SUCH A DECLARATION.  THE OPINION WAS FILED ON
MAY 24, 1962.  THE MARYLAND LEGISLATURE, IN SPECIAL SESSION, ADOPTED
THE "EMERGENCY" MEASURES NOW DECLARED UNCONSTITUTIONAL SEVEN DAYS
LATER, ON MAY 31, 1962. 

FN75  THE VIRGINIA CONSTITUTION, ART. IV, SEC. 43, REQUIRES THAT A
REAPPORTIONMENT BE MADE EVERY 10 YEARS. 

FN76  THE 1962 REAPPORTIONMENT ACTS WERE APPROVED ON APR. 7, 1962. 
THE COMPLAINT WAS FILED ON APR. 9, 1962. 

FN77  THE DISTRICT COURT HANDED DOWN ITS OPINION ON NOV. 28, 1962,
AND GAVE THE VIRGINIA GENERAL ASSEMBLY UNTIL JAN. 31, 1963, "TO ENACT
APPROPRIATE REAPPORTIONMENT LAWS."  213 F. SUPP., AT 585-586.  THE
COURT STATED THAT FAILING SUCH ACTION OR AN APPEAL TO THIS COURT, THE
PLAINTIFFS MIGHT APPLY TO IT "FOR SUCH FURTHER ORDERS AS MAY BE
REQUIRED."  ID., AT 586. 

FN78  ON DEC. 15, 1962, THE CHIEF JUSTICE GRANTED A STAY PENDING
FINAL DISPOSITION OF THE CASE IN THIS COURT. 

FN79  THE DELAWARE CONSTITUTION, ART. XVI, SEC. 1, REQUIRES THAT
AMENDMENTS BE APPROVED BY THE NECESSARY TWO-THIRDS VOTE IN TWO
SUCCESSIVE GENERAL ASSEMBLIES. 

FN80  THE DISTRICT COURT THUS NAILED THE LID ON THE "BOX OF TIME" IN
WHICH EVERYONE SEEMED TO IT "TO BE TRAPPED."  THE LID WAS TEMPORARILY
OPENED A CRACK ON JUNE 27, 1963, WHEN MR. JUSTICE BRENNAN GRANTED A
STAY OF THE INJUNCTION UNTIL DISPOSITION OF THE CASE BY THIS COURT. 
SINCE THE COURT STATES THAT "THE DELAY INHERENT IN FOLLOWING THE STATE
CONSTITUTIONAL PRESCRIPTION FOR APPROVAL OF CONSTITUTIONAL AMENDMENTS
BY TWO SUCCESSIVE GENERAL ASSEMBLIES CANNOT BE ALLOWED TO RESULT IN AN
IMPERMISSIBLE DEPRIVATION OF APPELLEES' RIGHT TO AN ADEQUATE VOICE IN
THE ELECTION OF LEGISLATORS TO REPRESENT THEM," POST, P. 711, THE LID
HAS PRESUMABLY BEEN SLAMMED SHUT AGAIN. 

FN81  IN NEW YORK AND COLORADO, THIS PATTERN OF CONDUCT HAS THUS FAR
BEEN AVOIDED.  IN THE NEW YORK CASE (NO. 20, POST, P. 633), THE
DISTRICT COURT TWICE DISMISSED THE COMPLAINT, ONCE WITHOUT REACHING THE
MERITS, WMCA, INC., V. SIMON, 202 F. SUPP. 741, AND ONCE, AFTER THIS
COURT'S REMAND FOLLOWING BAKER V. CARR, SUPRA, 370 U.S. 190, ON THE
MERITS, 208 F. SUPP. 368.  IN THE COLORADO CASE (NO. 508, POST, P.
713), THE DISTRICT COURT FIRST DECLINED TO INTERFERE WITH A FORTHCOMING
ELECTION AT WHICH REAPPORTIONMENT MEASURES WERE TO BE SUBMITTED TO THE
VOTERS, LISCO V. MCNICHOLS, 208 F. SUPP. 471, AND, AFTER THE ELECTION,
UPHELD THE APPORTIONMENT PROVISIONS WHICH HAD BEEN ADOPTED, 219 F.
SUPP. 922. 

IN VIEW OF THE ACTION WHICH THIS COURT NOW TAKES IN BOTH OF THESE
CASES, THERE IS LITTLE DOUBT THAT THE LEGISLATURES OF THESE TWO STATES
WILL NOW BE SUBJECTED TO THE SAME KIND OF PRESSURES FROM THE FEDERAL
JUDICIARY AS HAVE THE OTHER STATES. 

FN82  IT IS NOT MERE FANCY TO SUPPOSE THAT IN ORDER TO AVOID PROBLEMS
OF THIS SORT, THE COURT MAY ONE DAY BE TEMPTED TO HOLD THAT ALL STATE
LEGISLATORS MUST BE ELECTED IN STATEWIDE ELECTIONS. 

FN83  ANTE, P. 579. 

FN84  ANTE, PP. 579-580. 

FN85  ANTE, P. 580. 

FN86  IBID. 

FN87  IBID. 

FN88  IBID. 

FN89  ANTE, PP. 576-577. 

FN90  DAVIS V. MANN, POST, P. 691. 

FN91  ID., AT 692. 

FN92  LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY, POST, P. 736. 

FN93  ANTE, P. 581. 

FN94  THE COURT DOES NOTE THAT, IN VIEW OF MODERN DEVELOPMENTS IN
TRANSPORTATION AND COMMUNICATION, IT FINDS "UNCONVINCING" ARGUMENTS
BASED ON A DESIRE TO INSURE REPRESENTATION OF SPARSELY SETTLED AREAS OR
TO AVOID DISTRICTS SO LARGE THAT VOTERS' ACCESS TO THEIR
REPRESENTATIVES IS IMPAIRED.  ANTE, P. 580. 

                            APPENDIX A TO OPINION OF MR. JUSTICE

   HARLAN, DISSENTING. 

STATEMENTS MADE IN THE HOUSE OF REPRESENTATIVES DURING THE DEBATE ON
THE RESOLUTION PROPOSING THE FOURTEENTH AMENDMENT.* 

*ALL PAGE REFERENCES ARE TO CONG. GLOBE, 39TH CONG., 1ST SESS.
(1866). 

"AS THE NEAREST APPROACH TO JUSTICE WHICH WE ARE LIKELY TO BE ABLE TO
MAKE, I APPROVE OF THE SECOND SECTION THAT BASES REPRESENTATION UPON
VOTERS."  2463 (MR. GARFIELD). 

"WOULD IT NOT BE A MOST UNPRECEDENTED THING THAT WHEN THIS FORMER
SLAVE POPULATION ARE NOT PERMITTED WHERE THEY RESIDE TO ENTER INTO THE
BASIS OF REPRESENTATION IN THEIR OWN STATE, WE SHOULD RECEIVE IT AS AN
ELEMENT OF REPRESENTATION HERE; THAT WHEN THEY WILL NOT COUNT THEM IN
APPORTIONING THEIR OWN LEGISLATIVE DISTRICTS, WE ARE TO COUNT THEM AS
FIVE FIFTHS (NO LONGER AS THREE FIFTHS, FOR THAT IS OUT OF THE
QUESTION) AS SOON AS YOU MAKE A NEW APPORTIONMENT?"  2464-2465 (MR.
THAYER). 

"THE SECOND SECTION OF THE AMENDMENT IS OSTENSIBLY INTENDED TO REMEDY
A SUPPOSED INEQUALITY IN THE BASIS OF REPRESENTATION.  THE REAL OBJECT
IS TO REDUCE THE NUMBER OF SOUTHERN REPRESENTATIVES IN CONGRESS AND IN
THE ELECTORAL COLLEGE; AND ALSO TO OPERATE AS A STANDING INDUCEMENT TO
NEGRO SUFFRAGE."  2467 (MR. BOYER). 

"SHALL THE PARDONED REBELS OF THE SOUTH INCLUDE IN THE BASIS OF
REPRESENTATION FOUR MILLION PEOPLE TO WHOM THEY DENY POLITICAL RIGHTS,
AND TO NO ONE OF WHOM IS ALLOWED A VOTE IN THE SELECTION OF A
REPRESENTATIVE?"  2468 (MR. KELLEY). 

"I SHALL, MR. SPEAKER, VOTE FOR THIS AMENDMENT; NOT BECAUSE I APPROVE
IT.  COULD I HAVE CONTROLLED THE REPORT OF THE COMMITTEE OF FIFTEEN, IT
WOULD HAVE PROPOSED TO GIVE THE RIGHT OF SUFFRAGE TO EVERY LOYAL MAN IN
THE COUNTRY."  2469 (MR. KELLEY).    "BUT I WILL ASK, WHY SHOULD NOT
THE REPRESENTATION OF THE STATES BE LIMITED AS THE STATES THEMSELVES
LIMIT SUFFRAGE?  ...  IF THE NEGROES OF THE SOUTH ARE NOT TO BE COUNTED
AS A POLITICAL ELEMENT IN THE GOVERNMENT OF THE SOUTH IN THE STATES,
WHY SHOULD THEY BE COUNTED AS A POLITICAL ELEMENT IN THE GOVERNMENT OF
THE COUNTRY IN THE UNION?"  2498 (MR. BROOMALL). 

"IT IS NOW PROPOSED TO BASE REPRESENTATION UPON SUFFRAGE, UPON THE
NUMBER OF VOTERS, INSTEAD OF UPON THE AGGREGATE POPULATION IN EVERY
STATE OF THE UNION."  2502 (MR. RAYMOND). 

"WE ADMIT EQUALITY OF REPRESENTATION BASED UPON THE EXERCISE OF THE
ELECTED FRANCHISE BY THE PEOPLE.  THE PROPOSITION IN THE MATTER OF
SUFFRAGE FALLS SHORT OF WHAT I DESIRE, BUT SO FAR AS IT GOES IT TENDS
TO THE EQUALIZATION OF THE INEQUALITY AT PRESENT EXISTING; AND WHILE I
DEMAND AND SHALL CONTINUE TO DEMAND THE FRANCHISE FOR ALL LOYAL MALE
CITIZENS OF THIS COUNTRY - AND I CANNOT BUT ADMIT THE POSSIBILITY THAT
ULTIMATELY THOSE ELEVEN STATES MAY BE RESTORED TO REPRESENTATIVE POWER
WITHOUT THE RIGHT OF FRANCHISE BEING CONFERRED UPON THE COLORED PEOPLE
I SHOULD FEEL MYSELF DOUBLY HUMILIATED AND DISGRACED, AND CRIMINAL
EVEN, IF I HESITATED TO DO WHAT I CAN FOR A PROPOSITION WHICH EQUALIZES
REPRESENTATION."  2508 (MR. BOUTWELL). 

"NOW, CONCEDING TO EACH STATE THE RIGHT TO REGULATE THE RIGHT OF
SUFFRAGE, THEY OUGHT NOT TO HAVE A REPRESENTATION FOR MALE CITIZENS NOT
LESS THAN TWENTY-ONE YEARS OF AGE, WHETHER WHITE OR BLACK, WHO ARE
DEPRIVED OF THE EXERCISE OF SUFFRAGE.  THIS AMENDMENT WILL SETTLE THE
COMPLICATION IN REGARD TO SUFFRAGE AND REPRESENTATION, LEAVING EACH
STATE TO REGULATE THAT FOR ITSELF, SO THAT IT WILL BE FOR IT TO DECIDE
WHETHER OR NOT IT SHALL HAVE A REPRESENTATION FOR ALL ITS MALE CITIZENS
NOT LESS THAN TWENTY-ONE YEARS OF AGE."  2510 (MR. MILLER). 

"MANIFESTLY NO STATE SHOULD HAVE ITS BASIS OF NATIONAL REPRESENTATION
ENLARGED BY REASON OF A PORTION OF CITIZENS WITHIN ITS BORDERS TO WHICH
THE ELECTIVE FRANCHISE IS DENIED.  IF POLITICAL POWER SHALL BE LOST
BECAUSE OF SUCH DENIAL, NOT IMPOSED BECAUSE OF PARTICIPATION IN
REBELLION OR OTHER CRIME, IT IS TO BE HOPED THAT POLITICAL INTERESTS
MAY WORK IN THE LINE OF JUSTICE, AND THAT THE END WILL BE THE IMPARTIAL
ENFRANCHISEMENT OF ALL CITIZENS NOT DISQUALIFIED BY CRIME.  WHETHER
THAT END SHALL BE ATTAINED OR NOT, THIS WILL BE SECURED:  THAT THE
MEASURE OF POLITICAL POWER OF ANY STATE SHALL BE DETERMINED BY THAT
PORTION OF ITS CITIZENS WHICH CAN SPEAK AND ACT AT THE POLLS, AND SHALL
NOT BE ENLARGED BECAUSE OF THE RESIDENCE WITHIN THE STATE OF PORTIONS
OF ITS CITIZENS DENIED THE RIGHT OF FRANCHISE.  SO MUCH FOR THE SECOND
BUT ODIOUS INEQUALITIES ARE REMOVED BY IT AND REPRESENTATION WILL BE
EQUALIZED, AND THE POLITICAL RIGHTS OF ALL CITIZENS WILL UNDER ITS
OPERATION BE, AS WE BELIEVE, ULTIMATELY RECOGNIZED AND ADMITTED."  2511
(MR. ELIOT). 

"I HAVE NO DOUBT THAT THE GOVERNMENT OF THE UNITED STATES HAS FULL
POWER TO EXTEND THE ELECTIVE FRANCHISE TO THE COLORED POPULATION OF THE
INSURGENT STATES.  I MEAN AUTHORITY; I SAID POWER.  I HAVE NO DOUBT
THAT THE GOVERNMENT OF THE UNITED STATES HAS AUTHORITY TO DO THIS UNDER
THE CONSTITUTION; BUT I DO NOT THINK THEY HAVE THE POWER.  THE
DISTINCTION I MAKE BETWEEN AUTHORITY AND POWER IS THIS:  WE HAVE, IN
THE NATURE OF OUR GOVERNMENT, THE RIGHT TO DO IT; BUT THE PUBLIC
OPINION OF THE COUNTRY IS SUCH AT THIS PRECISE MOMENT AS TO MAKE IT
IMPOSSIBLE WE SHOULD DO IT.  IT WAS THEREFORE MOST WISE ON THE PART OF
THE COMMITTEE ON RECONSTRUCTION TO WAIVE THIS MATTER IN DEFERENCE TO
PUBLIC OPINION.  THE SITUATION OF OPINION IN THESE STATES COMPELS US TO
LOOK TO OTHER MEANS TO PROTECT THE GOVERNMENT AGAINST THE ENEMY."  2532
(MR. BANKS). 

"IF YOU DENY TO ANY PORTION OF THE LOYAL CITIZENS OF YOUR STATE THE
RIGHT TO VOTE FOR REPRESENTATIVES YOU SHALL NOT ASSUME TO REPRESENT
THEM, AND, AS YOU HAVE DONE FOR SO LONG A TIME, MISREPRESENT AND
OPPRESS THEM.  THIS IS A STEP IN THE RIGHT DIRECTION; AND ALTHOUGH I
SHOULD PREFER TO SEE INCORPORATED INTO THE CONSTITUTION A GUARANTEE OF
UNIVERSAL SUFFRAGE, AS WE CANNOT GET THE REQUIRED TWO THIRDS FOR THAT,
I CORDIALLY SUPPORT THIS PROPOSITION AS THE NEXT BEST."  2539-2540 (MR.
FARNSWORTH). 

                            APPENDIX B TO OPINION OF MR. JUSTICE

          HARLAN, DISSENTING. 

STATEMENTS MADE IN THE SENATE DURING THE DEBATE ON THE RESOLUTION
PROPOSING THE FOURTEENTH AMENDMENT.* 

*ALL PAGE REFERENCES ARE TO CONG. GLOBE, 39TH CONG., 1ST SESS.
(1866). 

"THE SECOND SECTION OF THE CONSTITUTIONAL AMENDMENT PROPOSED BY THE
COMMITTEE CAN BE JUSTIFIED UPON NO OTHER THEORY THAN THAT THE NEGROES
OUGHT TO VOTE; AND NEGRO SUFFRAGE MUST BE VINDICATED BEFORE THE PEOPLE
IN SUSTAINING THAT SECTION, FOR IT DOES NOT EXCLUDE THE NON-VOTING
POPULATION OF THE NORTH, BECAUSE IT IS ADMITTED THAT THERE IS NO WRONG
IN EXCLUDING FROM SUFFRAGE ALIENS, FEMALES, AND MINORS.  BUT WE SAY, IF
THE NEGRO IS EXCLUDED FROM SUFFRAGE HE SHALL ALSO BE EXCLUDED FROM THE
BASIS OF REPRESENTATION.  WHY THIS INEQUALITY?  WHY THIS INJUSTICE? 
FOR INJUSTICE IT WOULD BE UNLESS THERE BE SOME GOOD REASON FOR THIS
DISCRIMINATION AGAINST THE SOUTH IN EXCLUDING HER NON-VOTING POPULATION
FROM THE BASIS OF REPRESENTATION.  THE ONLY DEFENSE THAT WE CAN MAKE TO
THIS APPARENT INJUSTICE IS THAT THE SOUTH COMMITS AN OUTRAGE UPON HUMAN
RIGHTS WHEN SHE DENIES THE BALLOT TO THE BLACKS, AND WE WILL NOT ALLOW
HER TO TAKE ADVANTAGE OF HER OWN WRONG, OR PROFIT BY THIS OUTRAGE. 
DOES ANY ONE SUPPOSE IT POSSIBLE TO AVOID THIS PLAIN ISSUE BEFORE THE
PEOPLE?  FOR IF THEY WILL SUSTAIN YOU IN REDUCING THE REPRESENTATION OF
THE SOUTH BECAUSE SHE DOES NOT ALLOW THE NEGRO TO VOTE, THEY WILL DO SO
BECAUSE THEY THINK IT IS WRONG TO DISFRANCHISE HIM."  2800 (SENATOR
STEWART). 

"IT (THE SECOND SECTION OF THE PROPOSED AMENDMENT) RELIEVES HIM (THE
NEGRO) FROM MISREPRESENTATION IN CONGRESS BY DENYING HIM ANY
REPRESENTATION WHATEVER."  2801 (SENATOR STEWART). 

"BUT I WILL AGAIN VENTURE THE OPINION THAT IT (THE SECOND SECTION)
MEANS AS IF IT READ THUS: NO STATE SHALL BE ALLOWED A REPRESENTATION ON
A COLORED POPULATION UNLESS THE RIGHT OF VOTING IS GIVEN TO THE NEGROES
- PRESENTING TO THE STATES THE ALTERNATIVE OF LOSS OF REPRESENTATION OR
THE ENFRANCHISEMENT OF THE NEGROES, AND THEIR POLITICAL EQUALITY." 
2939 (SENATOR HENDRICKS). 

"I SHOULD BE MUCH BETTER SATISFIED IF THE RIGHT OF SUFFRAGE HAD BEEN
GIVEN AT ONCE TO THE MORE INTELLIGENT OF THEM (THE NEGROES) AND SUCH AS
HAD SERVED IN OUR ARMY.  BUT IT IS BELIEVED BY WISER ONES THAN MYSELF
THAT THIS AMENDMENT WILL VERY SOON PRODUCE SOME GRANT OF SUFFRAGE TO
THEM, AND THAT THE CRAVING FOR POLITICAL POWER WILL ERE LONG GIVE THEM
UNIVERSAL SUFFRAGE  ...  .  BELIEVING THAT THIS AMENDMENT PROBABLY GOES
AS FAR IN FAVOR OF SUFFRAGE TO THE NEGRO AS IS PRACTICABLE TO
ACCOMPLISH NOW, AND HOPING IT MAY IN THE END ACCOMPLISH ALL I DESIRE IN
THIS RESPECT, I SHALL VOTE FOR ITS ADOPTION, ALTHOUGH I SHOULD BE GLAD
TO GO FURTHER."  2963-2964 (SENATOR POLAND). 

"WHAT IS TO BE THE OPERATION OF THIS AMENDMENT?  JUST THIS:  YOUR
WHIP IS HELD OVER PENNSYLVANIA, AND YOU SAY TO HER THAT SHE MUST EITHER
ALLOW HER NEGROES TO VOTE OR HAVE ONE MEMBER OF CONGRESS LESS."  2987
(SENATOR COWAN). 

"NOW, SIR, IN ALL THE STATES - CERTAINLY IN MINE, AND NO DOUBT IN ALL
- THERE ARE LOCAL AS CONTRADISTINGUISHED FROM STATE ELECTIONS.  THERE
ARE CITY ELECTIONS, COUNTY ELECTIONS, AND DISTRICT OR BOROUGH
ELECTIONS; AND THOSE CITY AND COUNTY AND DISTRICT ELECTIONS ARE HELD
UNDER SOME LAW OF THE STATE IN WHICH THE CITY OR COUNTY OR DISTRICT OR
BOROUGH MAY BE; AND IN THOSE ELECTIONS, ACCORDING TO THE LAWS OF THE
STATES, CERTAIN QUALIFICATIONS ARE PRESCRIBED, RESIDENCE WITHIN THE
LIMITS OF THE LOCALITY AND A PROPERTY QUALIFICATION IN SOME.  NOW, IS
IT PROPOSED TO SAY THAT IF EVERY MAN IN A STATE IS NOT AT LIBERTY TO
VOTE AT A CITY OR A COUNTRY OR A BOROUGH ELECTION THAT IS TO AFFECT THE
BASIS OF REPRESENTATION?"  2991 (SENATOR JOHNSON). 

"AGAIN, MR. PRESIDENT, THE MEASURE UPON THE TABLE, LIKE THE FIRST
PROPOSITION SUBMITTED TO THE SENATE FROM THE COMMITTEE OF FIFTEEN,
CONCEDES TO THE STATES  ...  NOT ONLY THE RIGHT, BUT THE EXCLUSIVE
RIGHT, TO REGULATE THE FRANCHISE  ...  .  IT SAYS THAT EACH OF THE
SOUTHERN STATES, AND, OF COURSE, EACH OTHER STATE IN THE UNION, HAS A
RIGHT TO REGULATE FOR ITSELF THE FRANCHISE, AND THAT CONSEQUENTLY, AS
FAR AS THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, IF THE BLACK
MAN IS NOT PERMITTED THE RIGHT TO THE FRANCHISE, IT WILL BE A WRONG (IF
A WRONG) WHICH THE GOVERNMENT OF THE UNITED STATES WILL BE IMPOTENT TO
REDRESS."  3027 (SENATOR JOHNSON). 

"THE AMENDMENT FIXES REPRESENTATION UPON NUMBERS, PRECISELY AS THE
CONSTITUTION NOW DOES, BUT WHEN A STATE DENIES OR ABRIDGES THE ELECTIVE
FRANCHISE TO ANY OF ITS MALE INHABITANTS WHO ARE CITIZENS OF THE UNITED
STATES AND NOT LESS THAN TWENTY-ONE YEARS OF AGE, EXCEPT FOR
PARTICIPATION IN REBELLION OR OTHER CRIME, THEN SUCH STATE WILL LOSE
ITS REPRESENTATION IN CONGRESS IN THE PROPORTION WHICH THE MALE CITIZEN
SO EXCLUDED BEARS TO THE WHOLE NUMBER OF MALE CITIZENS NOT LESS THAN
TWENTY-ONE YEARS OF AGE IN THE STATE."  3033 (SENATOR HENDERSON). 
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WMCA, INC., V. LOMENZO, SECRETARY OF STATE OF NEW YORK 377 U.S. 633 


NO. 20.  ARGUED NOVEMBER 12-13, 1963.  - DECIDED JUNE 15, 1964.  - 208
F. SUPP. 368, REVERSED AND REMANDED. 


APPELLANTS, INCLUDING VOTERS IN SEVERAL OF NEW YORK STATE'S MOST
POPULOUS COUNTIES, FILED SUIT ON THEIR OWN BEHALF AND FOR OTHERS
SIMILARLY SITUATED, AGAINST VARIOUS STATE AND LOCAL ELECTION OFFICIALS,
ATTACKING THE LEGISLATIVE APPORTIONMENT SYSTEM AS A VIOLATION OF THE
FOURTEENTH AMENDMENT.  THE 1894 NEW YORK CONSTITUTION PROVIDES FOR A
COMPLEX "RATIO" SYSTEM OF SENATORIAL APPORTIONMENT, WITH THE COUNTY AS
THE BASIC UNIT, YIELDING SEPARATE AND DIVERSE RATIOS FOR "POPULOUS" AND
"LESS POPULOUS" COUNTIES, AND RESULTING IN COMPARATIVELY LESS
REPRESENTATION FOR THE POPULOUS COUNTIES.  UNDER THE EXISTING
APPORTIONMENT SENATORS REPRESENTING 40.9% OF THE STATE'S CITIZENS
COMPRISED A MAJORITY IN THE SENATE, AND THE MOST POPULOUS SENATORIAL
DISTRICT HAD 2.4 TIMES AS MANY CITIZENS AS THE LEAST POPULOUS ONE. 
GROSS DISPARITIES WOULD REMAIN UNDER THE FORTHCOMING APPORTIONMENT. 
SIMILARLY, THE PROVISIONS FOR APPORTIONING ASSEMBLY SEATS RESULTED IN
ESTABLISHING THREE SEPARATE CATEGORIES OF COUNTIES WITH DISTINCTLY
DIFFERENT POPULATION RATIOS, AND ALSO FAVORED THE LESS POPULOUS
COUNTIES.  UNDER THE EXISTING APPORTIONMENT, ASSEMBLYMEN REPRESENTING
37.1% OF THE STATE'S CITIZENS CONSTITUTED A MAJORITY IN THE ASSEMBLY
AND THE MOST POPULOUS ASSEMBLY DISTRICT HAD 11.9 TIMES AS MANY CITIZENS
AS THE LEAST POPULOUS ONE.  GROSS DISPARITIES WOULD REMAIN UNDER THE
FORTHCOMING APPORTIONMENT.  NO INITIATIVE PROCEDURE EXISTS UNDER NEW
YORK LAW AND NO ADEQUATE POLITICAL REMEDY FOR MALAPPORTIONMENT IS
AVAILABLE.  THE DISTRICT COURT INITIALLY DENIED RELIEF, HOLDING THE
ISSUES NONJUSTICIABLE.  THIS COURT, IN 370 U.S. 190, VACATED THAT
JUDGMENT AND REMANDED FOR FURTHER CONSIDERATION IN THE LIGHT OF BAKER
V. CARR, 369 U.S. 186.  THEREAFTER, THE DISTRICT COURT DISMISSED THE
COMPLAINT ON THE MERITS, CONCLUDING THAT THE CONSTITUTIONAL PROVISIONS
WERE NOT ARBITRARY OR IRRATIONAL IN GIVING WEIGHT TO "AREA,
ACCESSIBILITY AND CHARACTER OF INTEREST" IN ADDITION TO POPULATION. 
HELD: 

1.  THE EQUAL PROTECTION CLAUSE REQUIRES THAT BOTH HOUSES OF A
BICAMERAL STATE LEGISLATURE BE APPORTIONED SUBSTANTIALLY ON AN EQUAL
POPULATION BASIS.  REYNOLDS V. SIMS, ANTE, P. 533, FOLLOWED.  P. 653. 

2.  NEITHER HOUSE OF THE NEW YORK LEGISLATURE IS NOW, OR WILL BE WHEN
REAPPORTIONED ON 1960 CENSUS FIGURES, APPORTIONED SUFFICIENTLY ON A
POPULATION BASIS TO BE CONSTITUTIONALLY SUSTAINABLE.  PP. 653-654. 

(A)  NO MATTER HOW SOPHISTICATED OR COMPLEX AN APPORTIONMENT PLAN MAY
BE, IT CANNOT SIGNIFICANTLY UNDERVALUE THE VOTES OF CITIZENS MERELY
BECAUSE OF WHERE THEY RESIDE.  P. 653. 

(B)  A FORMULA WITH A BUILT-IN BIAS AGAINST VOTERS RESIDING IN THE
MORE POPULOUS COUNTIES CANNOT BE CONSTITUTIONALLY CONDONED.  PP. 653
654. 

3.  USING EQUITABLE PRINCIPLES, THE DISTRICT COURT MUST DETERMINE
WHETHER, IN VIEW OF THE IMMINENCE OF THE 1964 ELECTION, THAT ELECTION
MAY BE HELD UNDER THE EXISTING APPORTIONMENT PROVISIONS, OR WHETHER
EFFECTUATION OF APPELLANTS' RIGHTS SHOULD NOT BE FURTHER DELAYED.  P.
655. 

WMCA, INC., ET AL. V. LOMENZO, SECRETARY OF STATE OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

AT ISSUE IN THIS LITIGATION IS THE CONSTITUTIONAL VALIDITY, UNDER THE
FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION, OF THE APPORTIONMENT
OF SEATS IN THE NEW YORK LEGISLATURE. 

              I. 

APPELLANTS INITIALLY BROUGHT THIS ACTION ON MAY 1, 1961, IN THE
FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. 
PLAINTIFFS BELOW INCLUDED INDIVIDUAL CITIZENS AND VOTERS RESIDING IN
FIVE OF THE SIX MOST POPULOUS NEW YORK COUNTIES (BRONX, KINGS, NASSAU,
NEW YORK AND QUEENS), SUING IN THEIR OWN BEHALF AND ON BEHALF OF ALL
NEW YORK CITIZENS SIMILARLY SITUATED.  APPELLEES, SUED IN THEIR
REPRESENTATIVE CAPACITIES, ARE VARIOUS STATE AND LOCAL OFFICIALS
CHARGED WITH DUTIES IN CONNECTION WITH REAPPORTIONMENT AND THE
CONDUCTING OF STATE ELECTIONS.  THE COMPLAINT CLAIMED RIGHTS UNDER THE
CIVIL RIGHTS ACT, 42 U.S.C. SECS. 1983, 1988, AND ASSERTED JURISDICTION
UNDER 28 U.S.C. SEC. 1343(3). 

PLAINTIFFS BELOW SOUGHT A DECLARATION THAT THOSE PROVISIONS OF THE
STATE CONSTITUTION WHICH ESTABLISH THE FORMULAS FOR APPORTIONING SEATS
IN THE TWO HOUSES OF THE NEW YORK LEGISLATURE, AND THE STATUTES
IMPLEMENTING THEM, ARE UNCONSTITUTIONAL SINCE VIOLATIVE OF THE
FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION.  THE COMPLAINT
FURTHER ASKED THE DISTRICT COURT TO ENJOIN DEFENDANTS FROM PERFORMING
ANY ACTS OR DUTIES IN COMPLIANCE WITH THE ALLEGEDLY UNCONSTITUTIONAL
LEGISLATIVE APPORTIONMENT PROVISIONS.  PLAINTIFFS ASSERTED THAT THEY
HAD NO ADEQUATE REMEDY OTHER THAN THE JUDICIAL RELIEF SOUGHT, AND
REQUESTED THE COURT TO RETAIN JURISDICTION UNTIL THE NEW YORK
LEGISLATURE, "FREED FROM THE FETTERS IMPOSED BY THE CONSTITUTIONAL
PROVISIONS INVALIDATED BY THIS COURT, PROVIDES FOR SUCH APPORTIONMENT
OF THE STATE LEGISLATURE AS WILL INSURE TO THE URBAN VOTERS OF NEW YORK
STATE THE RIGHTS GUARANTEED THEM BY THE CONSTITUTION OF THE UNITED
STATES." 

IN ATTACKING THE EXISTING APPORTIONMENT OF SEATS IN THE NEW YORK
LEGISLATURE, PLAINTIFFS BELOW STATED, MORE PARTICULARLY, THAT: 

"THE PROVISIONS OF THE NEW YORK STATE CONSTITUTION, ARTICLE III,
SECS. 2-5, VIOLATE THE XIV AMENDMENT OF THE CONSTITUTION OF THE UNITED
STATES BECAUSE THE APPORTIONMENT FORMULA CONTAINED THEREIN RESULTS, AND
MUST NECESSARILY RESULT, WHEN APPLIED TO THE POPULATION FIGURES OF THE
STATE IN A GROSSLY UNFAIR WEIGHTING OF BOTH HOUSES IN THE STATE
LEGISLATURE IN FAVOR OF THE LESSER POPULATED RURAL AREAS OF THE STATE
TO THE GREAT DISADVANTAGE OF THE DENSELY POPULATED URBAN CENTERS OF THE
STATE  ...  . 

"AS A RESULT OF THE CONSTITUTIONAL PROVISIONS CHALLENGED HEREIN, THE
PLAINTIFFS' VOTES ARE NOT AS EFFECTIVE IN EITHER HOUSE OF THE
LEGISLATURE AS THE VOTES OF OTHER CITIZENS RESIDING IN RURAL AREAS OF
THE STATE.  PLAINTIFFS AND ALL OTHERS SIMILARLY SITUATED SUFFER A
DEBASEMENT OF THEIR VOTES BY VIRTUE OF THE ARBITRARY, OBSOLETE AND
UNCONSTITUTIONAL APPORTIONMENT OF THE LEGISLATURE AND THEY AND ALL
OTHERS SIMILARLY SITUATED ARE DENIED THE EQUAL PROTECTION OF THE LAWS
REQUIRED BY THE CONSTITUTION OF THE UNITED STATES." 

THE COMPLAINT ASSERTED THAT THE LEGISLATIVE APPORTIONMENT PROVISIONS
OF THE 1894 NEW YORK CONSTITUTION, AS AMENDED, ARE NOT ONLY PRESENTLY
UNCONSTITUTIONAL, BUT ALSO WERE INVALID AND VIOLATIVE OF THE FOURTEENTH
AMENDMENT AT THE TIME OF THEIR ADOPTION, AND THAT "THE POPULATION
GROWTH IN THE STATE OF NEW YORK AND THE SHIFTS OF POPULATION TO URBAN
AREAS HAVE AGGRAVATED THE VIOLATION OF PLAINTIFFS' RIGHTS UNDER THE XIV
AMENDMENT." 

AS REQUESTED BY PLAINTIFFS, A THREE-JUDGE DISTRICT COURT WAS
CONVENED.  (FN1)  THE NEW YORK CITY DEFENDANTS ADMITTED THE ALLEGATIONS
OF THE COMPLAINT AND REQUESTED THE COURT TO GRANT PLAINTIFFS THE RELIEF
THEY WERE SEEKING.  THE REMAINING DEFENDANTS MOVED TO DISMISS.  ON
JANUARY 11, 1962, THE DISTRICT COURT ANNOUNCED ITS INITIAL DECISION. 
IT HELD THAT IT HAD JURISDICTION BUT DISMISSED THE COMPLAINT, WITHOUT
REACHING THE MERITS, ON THE GROUND THAT IT FAILED TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED, SINCE THE ISSUES RAISED WERE
NONJUSTICIABLE.  202 F. SUPP. 741.  IN DISCUSSING THE ALLEGATIONS MADE
BY PLAINTIFFS, THE COURT STATED: 

"THE COMPLAINT SPECIFICALLY CITES AS THE CAUSE OF THIS ALLEGEDLY
UNCONSTITUTIONAL DISTRIBUTION OF STATE LEGISLATIVE REPRESENTATION THE
NEW YORK CONSTITUTIONAL PROVISIONS REQUIRING THAT: 

"(A) '  ...  THE TOTAL OF FIFTY SENATORS ESTABLISHED BY THE
CONSTITUTION OF 1894 SHALL BE INCREASED BY THOSE SENATORS TO WHICH ANY
OF THE LARGER COUNTIES BECOME ENTITLED IN ADDITION TO THEIR ALLOTMENT
AS OF 1894, BUT WITHOUT EFFECT FOR DECREASES IN OTHER LARGE COUNTIES
...  :' 

"(B) NO COUNTY MAY HAVE 'FOUR OR MORE SENATORS UNLESS IT HAS A FULL
RATIO FOR EACH SENATOR  ...  ' AND: 

"(C) '  ...  EVERY COUNTY EXCEPT HAMILTON SHALL ALWAYS BE ENTITLED IN
THE ASSEMBLY TO ONE MEMBER COUPLED WITH THE LIMITATION OF THE ENTIRE
MEMBERSHIP TO 150 MEMBERS  ...  .'"  (FN2) 

NOTING THAT THE 1894 CONSTITUTION, CONTAINING THE PRESENT
APPORTIONMENT PROVISIONS, WAS APPROVED BY A MAJORITY OF THE STATE'S
ELECTORATE BEFORE BECOMING EFFECTIVE, AND THAT SUBSEQUENTLY THE VOTERS
HAD TWICE DISAPPROVED PROPOSALS FOR A CONSTITUTIONAL CONVENTION TO
AMEND THE CONSTITUTIONAL PROVISIONS RELATING TO LEGISLATIVE
APPORTIONMENT, THE DISTRICT COURT CONCLUDED THAT, IN ANY EVENT, THERE
WAS A "WANT OF EQUITY IN THE RELIEF SOUGHT, OR, TO VIEW IT SLIGHTLY
DIFFERENTLY, WANT OF JUSTICIABILITY, WHICH CLEARLY DEMANDS DISMISSAL." 

PLAINTIFFS APPEALED TO THIS COURT FROM THE DISTRICT COURT'S DISMISSAL
OF THEIR COMPLAINT.  ON JUNE 11, 1962, WE VACATED THE JUDGMENT BELOW
AND REMANDED FOR FURTHER CONSIDERATION IN THE LIGHT OF BAKER V. CARR,
369 U.S. 186, WHICH HAD BEEN DECIDED SUBSEQUENT TO THE DISTRICT COURT'S
DISMISSAL OF THE SUIT BELOW.  370 U.S. 190.  IN VACATING AND REMANDING,
WE STATED: 

"OUR WELL-ESTABLISHED PRACTICE OF A REMAND FOR CONSIDERATION IN THE
LIGHT OF A SUBSEQUENT DECISION THEREFORE APPLIES  ...  .  WE BELIEVE
THAT THE COURT BELOW SHOULD BE THE FIRST TO CONSIDER THE MERITS OF THE
FEDERAL CONSTITUTIONAL CLAIM, FREE FROM ANY DOUBTS AS TO ITS
JUSTICIABILITY AND AS TO THE MERITS OF ALLEGED ARBITRARY AND INVIDIOUS
GEOGRAPHICAL DISCRIMINATION."  (FN3) 

ON AUGUST 16, 1962, THE DISTRICT COURT, AFTER CONDUCTING A HEARING,
(FN4) DISMISSED THE COMPLAINT ON THE MERITS, CONCLUDING THAT PLAINTIFFS
HAD NOT SHOWN BY A PREPONDERANCE OF THE EVIDENCE THAT THERE WAS ANY
INVIDIOUS DISCRIMINATION, THAT THE APPORTIONMENT PROVISIONS OF THE NEW
YORK CONSTITUTION WERE RATIONAL AND NOT ARBITRARY, THAT THEY WERE OF
HISTORICAL ORIGIN AND CONTAINED NO IMPROPER GEOGRAPHICAL
DISCRIMINATION, THAT THEY COULD BE AMENDED BY AN ELECTORAL MAJORITY OF
THE CITIZENS OF NEW YORK, AND THAT THEREFORE THE APPORTIONMENT OF SEATS
IN THE NEW YORK SENATE AND ASSEMBLY WAS NOT UNCONSTITUTIONAL.  208 F.
SUPP. 368.  FINDING NO FAILURE BY THE NEW YORK LEGISLATURE TO COMPLY
WITH THE STATE CONSTITUTIONAL PROVISIONS REQUIRING AND ESTABLISHING THE
FORMULAS FOR PERIODIC REAPPORTIONMENT OF SENATE AND ASSEMBLY SEATS, THE
COURT BELOW RELIED ON THE PRESUMPTION OF CONSTITUTIONALITY ATTACHING TO
A STATE CONSTITUTIONAL PROVISION AND THE NECESSITY FOR A CLEAR
VIOLATION "BEFORE A FEDERAL COURT OF EQUITY WILL LEND ITS POWER TO THE
DISRUPTION OF THE STATE ELECTION PROCESSES  ...  ."  AFTER POSTULATING
A NUMBER OF "TESTS" FOR INVIDIOUS DISCRIMINATION, INCLUDING THE
"RATIONALITY OF STATE POLICY AND WHETHER OR NOT THE SYSTEM IS
ARBITRARY," "WHETHER OR NOT THE PRESENT COMPLEXION OF THE LEGISLATURE
HAS A HISTORICAL BASIS," WHETHER THE ELECTORATE HAS AN AVAILABLE
POLITICAL REMEDY, AND "GEOGRAPHY, INCLUDING ACCESSIBILITY OF
LEGISLATIVE REPRESENTATIVES TO THEIR ELECTORS," THE COURT CONCLUDED
THAT NONE OF THE RELEVANT NEW YORK CONSTITUTIONAL PROVISIONS WERE
ARBITRARY OR IRRATIONAL IN GIVING WEIGHT TO, IN ADDITION TO POPULATION,
"THE INGREDIENT OF AREA, ACCESSIBILITY AND CHARACTER OF INTEREST." 
STATING THAT IN NEW YORK "THE COUNTY IS A CLASSIC UNIT OF GOVERNMENTAL
ORGANIZATION AND ADMINISTRATION," THE DISTRICT COURT FOUND THAT THE
ALLOCATION OF ONE ASSEMBLY SEAT TO EACH COUNTY WAS GROUNDED ON A
HISTORICAL BASIS.  THE COURT NOTED THAT THE 1957 VOTE ON WHETHER TO
CALL A CONSTITUTIONAL CONVENTION WAS "HERALDED AS AN ISSUE OF
APPORTIONMENT" BY THE THEN GOVERNOR, BUT THAT NEVERTHELESS A MAJORITY
OF THE STATE'S VOTERS CHOSE NOT TO HAVE A CONSTITUTIONAL CONVENTION
CONVENED.  THE COURT ALSO NOTED THAT "IF STRICT POPULATION STANDARDS
WERE ADOPTED CERTAIN UNDESIRABLE RESULTS MIGHT FOLLOW SUCH AS AN
INCREASE IN THE SIZE OF THE LEGISLATURE TO SUCH AN EXTENT THAT
EFFECTIVE DEBATE MAY BE HAMPERED OR AN INCREASE IN THE SIZE OF
DISTRICTS TO SUCH AN EXTENT THAT CONTACTS BETWEEN THE INDIVIDUAL
LEGISLATOR AND HIS CONSTITUENTS MAY BECOME IMPRACTICABLE."  (FN5)  AS A
RESULT OF THE DISTRICT COURT'S DISMISSAL OF THE COMPLAINT, THE NOVEMBER
1962 ELECTION OF NEW YORK LEGISLATORS WAS CONDUCTED PURSUANT TO THE
EXISTING APPORTIONMENT SCHEME.  A TIMELY APPEAL TO THIS COURT WAS
FILED, AND WE NOTED PROBABLE JURISDICTION ON JUNE 10, 1963.  374 U.S.
802. 

     II. 

APPORTIONMENT OF SEATS IN THE TWO HOUSES OF THE NEW YORK LEGISLATURE
IS PRESCRIBED BY CERTAIN FORMULAS CONTAINED IN THE 1894 STATE
CONSTITUTION, AS AMENDED.  REAPPORTIONMENT IS EFFECTED PERIODICALLY BY
STATUTORY PROVISIONS, (FN6) ENACTED IN COMPLIANCE WITH THE
CONSTITUTIONALLY ESTABLISHED FORMULAS.  THE COUNTY IS THE BASIC UNIT OF
AREA FOR APPORTIONMENT PURPOSES, EXCEPT THAT TWO SPARSELY POPULATED
COUNTIES, FULTON AND HAMILTON, ARE TREATED AS ONE.  NEW YORK USES
CITIZEN POPULATION INSTEAD OF TOTAL POPULATION, EXCLUDING ALIENS FROM
CONSIDERATION, FOR PURPOSES OF LEGISLATIVE APPORTIONMENT.  THE NUMBER
OF ASSEMBLYMEN IS FIXED AT 150, WHILE THE SIZE OF THE SENATE IS
PRESCRIBED AS NOT LESS THAN 50 AND MAY VARY WITH EACH APPORTIONMENT. 
(FN7)  ALL MEMBERS OF BOTH HOUSES OF THE NEW YORK LEGISLATURE ARE
ELECTED FOR TWO-YEAR TERMS ONLY, IN EVEN-NUMBERED YEARS. 

WITH RESPECT TO THE SENATE, AFTER PROVIDING THAT THAT BODY SHOULD
INITIALLY HAVE 50 SEATS AND CREATING 50 SENATORIAL DISTRICTS, THE NEW
YORK CONSTITUTION, IN ART. III, SEC. 4, AS AMENDED, PROVIDES FOR
DECENNIAL READJUSTMENT OF THE SIZE OF THE SENATE AND REAPPORTIONMENT OF
SENATORIAL SEATS, BEGINNING IN 1932 AND EVERY DECADE THEREAFTER, IN THE
FOLLOWING MANNER: 

"SUCH DISTRICTS SHALL BE SO READJUSTED OR ALTERED THAT EACH SENATE
DISTRICT SHALL CONTAIN AS NEARLY AS MAY BE AN EQUAL NUMBER OF
INHABITANTS, EXCLUDING ALIENS, AND BE IN AS COMPACT FORM AS
PRACTICABLE, AND SHALL REMAIN UNALTERED UNTIL THE FIRST YEAR OF THE
NEXT DECADE AS ABOVE DEFINED, AND SHALL AT ALL TIMES CONSIST OF
CONTIGUOUS TERRITORY, AND NO COUNTY SHALL BE DIVIDED IN THE FORMATION
OF A SENATE DISTRICT EXCEPT TO MAKE TWO OR MORE SENATE DISTRICTS WHOLLY
IN SUCH COUNTY ...  . 

"NO COUNTY SHALL HAVE FOUR OR MORE SENATORS UNLESS IT SHALL HAVE A
FULL RATIO FOR EACH SENATOR.  NO COUNTY SHALL HAVE MORE THAN ONE-THIRD
OF ALL THE SENATORS; AND NO TWO COUNTIES OR THE TERRITORY THEREOF AS
NOW ORGANIZED, WHICH ARE ADJOINING COUNTIES, OR WHICH ARE SEPARATED
ONLY BY PUBLIC WATERS, SHALL HAVE MORE THAN ONE-HALF OF ALL THE
SENATORS. 

"THE RATIO FOR APPORTIONING SENATORS SHALL ALWAYS BE OBTAINED BY
DIVIDING THE NUMBER OF INHABITANTS, EXCLUDING ALIENS, BY FIFTY, AND THE
SENATE SHALL ALWAYS BE COMPOSED OF FIFTY MEMBERS, EXCEPT THAT IF ANY
COUNTY HAVING THREE OR MORE SENATORS AT THE TIME OF ANY APPORTIONMENT
SHALL BE ENTITLED ON SUCH RATIO TO AN ADDITIONAL SENATOR OR SENATORS,
SUCH ADDITIONAL SENATOR OR SENATORS SHALL BE GIVEN TO SUCH COUNTY IN
ADDITION TO THE FIFTY SENATORS, AND THE WHOLE NUMBER OF SENATORS SHALL
BE INCREASED TO THAT EXTENT."  (FN8) 

AS INTERPRETED BY PRACTICE AND JUDICIAL DECISION, REAPPORTIONMENT AND
READJUSTMENT OF SENATORIAL REPRESENTATION IS ACCOMPLISHED IN SEVERAL
STATES.  FIRST, THE TOTAL POPULATION OF THE STATE, EXCLUDING ALIENS, AS
DETERMINED BY THE LAST FEDERAL CENSUS, IS DIVIDED BY 50 (THE MINIMUM
NUMBER OF SENATE SEATS) IN ORDER TO OBTAIN A SO-CALLED "RATIO" FIGURE. 
THE COUNTIES ON ACCOUNT OF WHICH THE SIZE OF THE SENATE MIGHT HAVE TO
BE INCREASED ARE THEN ASCERTAINED - COUNTIES HAVING THREE OR MORE
RATIOS, I.E., MORE THAN 6% OF THE STATE'S TOTAL CITIZEN POPULATION
EACH.  UNDER THE EXISTING APPORTIONMENT, ONLY FIVE COUNTIES ARE IN THE
6%-OR-MORE CLASS, FOUR OF NEW YORK CITY'S FIVE COUNTIES AND UPSTATE
ERIE COUNTY (BUFFALO AND ENVIRONS).  NASSAU COUNTY (SUBURBAN NEW YORK
CITY) WILL BE ADDED TO THIS CLASS IN THE PENDING REAPPORTIONMENT BASED
ON THE 1960 CENSUS.  AFTER THOSE COUNTIES THAT COME WITHIN THE
"POPULOUS" CATEGORY, SO DEFINED, HAVE BEEN ASCERTAINED, THEY ARE THEN
ALLOCATED ONE SENATORIAL SEAT FOR EACH FULL RATIO.  FRACTIONS OF A
RATIO ARE DISREGARDED, AND EACH POPULOUS COUNTY IS THEREAFTER DIVIDED
INTO THE APPROPRIATE NUMBER OF SENATE DISTRICTS.  IN ASCERTAINING THE
SIZE OF THE SENATE, THE TOTAL NUMBER OF ADDITIONAL SEATS RESULTING FROM
THE GROWTH OF THE POPULOUS COUNTIES SINCE 1894 IS ADDED TO THE 50
ORIGINAL SEATS.  AND, WHILE THE TOTAL NUMBER OF SEATS WHICH ANY OF THE
POPULOUS COUNTIES HAS GAINED SINCE 1894 IS ADDED TO THE 50 ORIGINAL
SEATS, THE NUMBER OF SEATS WHICH ANY OF THEM HAS LOST SINCE 1894 IS NOT
DEDUCTED FROM THE TOTAL NUMBER OF SEATS TO BE ADDED.  CURRENTLY THE NEW
YORK SENATE, AS REAPPORTIONED IN 1953, HAS 58 SEATS.  FROM THAT TOTAL,
THE NUMBER ALLOCATED TO THE POPULOUS COUNTIES IS SUBTRACTED - 27 UNDER
THE 1953 APPORTIONMENT - AND THE REMAINING SEATS - 31 UNDER THE 1953
SCHEME - ARE THEN APPORTIONED AMONG THE LESS POPULOUS COUNTIES.  WHEN
REAPPORTIONED ON THE BASIS OF 1960 CENSUS FIGURES, THE SENATE WILL HAVE
57 SEATS, WITH 26 ALLOTTED TO THE POPULOUS COUNTIES, AS A RESULT OF
APPLYING THE CONSTITUTIONALLY PRESCRIBED RATIO AND THE REQUIREMENT OF A
FULL RATIO IN ORDER FOR A POPULOUS COUNTY TO BE GIVEN MORE THAN THREE
SENATE SEATS. 

THE SECOND STAGE OF APPLYING THE SENATORIAL APPORTIONMENT FORMULA
INVOLVES THE ALLOCATION OF SEATS TO THE LESS POPULOUS COUNTIES, I.E.,
THOSE HAVING LESS THAN 6% OF THE STATE'S TOTAL CITIZEN POPULATION (LESS
THAN THREE FULL RATIOS).  AFTER THE NUMBER OF SENATE SEATS ALLOCATED TO
THE POPULOUS COUNTIES (AND THUS THE SIZE OF THE SENATE) HAS BEEN
DETERMINED, A SECOND POPULATION RATIO FIGURE IS OBTAINED BY DIVIDING
THE NUMBER OF SEATS AVAILABLE FOR DISTRIBUTION TO THE LESS POPULOUS
COUNTIES, 31 UNDER BOTH THE 1950 AND 1960 CENSUSES, INTO THE TOTAL
CITIZEN POPULATION OF THE LESS POPULOUS COUNTIES.  LESS POPULOUS
COUNTIES WHICH ARE ENTITLED TO TWO OR THREE SEATS, AS DETERMINED BY
COMPARING A COUNTY'S POPULATION WITH THE SECOND RATIO FIGURE THUS
ASCERTAINED, ARE THEN DIVIDED INTO SENATORIAL DISTRICTS.  A LESS
POPULOUS COUNTY IS ENTITLED TO THREE SEATS IF IT HAS LESS THAN THREE
FULL FIRST RATIOS, BUT HAS MORE THAN THREE, OR HAS TWO AND A LARGE
FRACTION, SECOND RATIOS.  SINCE THE FIRST RATIO IS SIGNIFICANTLY LARGER
THAN THE SECOND, A COUNTY CAN HAVE LESS THAN THREE FIRST RATIOS BUT
MORE THAN THREE SECOND RATIOS.  FINALLY, COUNTIES WITH SUBSTANTIALLY
LESS THAN ONE SECOND RATIO ARE COMBINED INTO MULTICOUNTY DISTRICTS. 

THE RESULT OF APPLYING THIS COMPLICATED APPORTIONMENT FORMULA IS TO
GIVE THE POPULOUS COUNTIES MARKEDLY LESS SENATORIAL REPRESENTATION,
WHEN COMPARED WITH RESPECTIVE POPULATION FIGURES, THAN THE LESS
POPULOUS COUNTIES.  UNDER THE 1953 APPORTIONMENT, BASED ON THE 1950
CENSUS, A SENATOR FROM ONE OF THE LESS POPULOUS COUNTIES REPRESENTED,
ON THE AVERAGE, 195,859 CITIZENS, WHILE A SENATOR FROM A POPULOUS
COUNTY REPRESENTED AN AVERAGE OF 301,178.  THE CONSTITUTIONALLY
PRESCRIBED FIRST RATIO FIGURE WAS 284,069, WHILE THE SECOND RATIO WAS,
OF COURSE, ONLY 195,859.  UNDER THE PENDING APPORTIONMENT BASED ON THE
1960 CENSUS, THE FIRST RATIO FIGURE IS 324,816, AND THE AVERAGE
POPULATION OF THE SENATORIAL DISTRICTS IN THE POPULOUS COUNTIES WILL BE
366,128.  ON THE OTHER HAND, THE SECOND RATIO, AND THE AVERAGE
POPULATION OF THE SENATORIAL DISTRICTS IN THE LESS POPULOUS COUNTIES,
IS ONLY 216,822.  THUS, A CITIZEN IN A LESS POPULOUS COUNTY HAD, UNDER
THE 1953 APPORTIONMENT, OVER 1.5 TIMES THE REPRESENTATION, ON THE
AVERAGE, OF A CITIZEN IN A POPULOUS COUNTY, AND, UNDER THE
APPORTIONMENT BASED ON THE 1960 CENSUS, THIS RATIO WILL BE ABOUT 1.7-TO
1.  (FN9) 

THE 1894 NEW YORK CONSTITUTION ALSO PROVIDED FOR AN ASSEMBLY COMPOSED
OF 150 MEMBERS, IN ART. III, SEC. 2.  UNDER THE FORMULA PRESCRIBED BY
ART. III, SEC. 5, OF THE NEW YORK CONSTITUTION, EACH OF THE STATE'S 62
COUNTIES, EXCEPT HAMILTON COUNTY WHICH IS COMBINED WITH FULTON COUNTY
FOR PURPOSES OF ASSEMBLY REPRESENTATION, IS INITIALLY GIVEN ONE
ASSEMBLY SEAT.  THE REMAINING 89 SEATS ARE THEN ALLOCATED AMONG THE
VARIOUS COUNTIES IN ACCORDANCE WITH A "RATIO" FIGURE OBTAINED BY
DIVIDING THE TOTAL NUMBER OF SEATS, 150, INTO THE STATE'S TOTAL CITIZEN
POPULATION.  APPLYING THE CONSTITUTIONAL FORMULA, A COUNTY WHOSE
POPULATION IS AT LEAST 1 1/2 TIMES THIS RATIO (1% OF THE TOTAL CITIZEN
POPULATION) IS GIVEN ONE ADDITIONAL ASSEMBLYMAN.  THE REMAINING
ASSEMBLY SEATS ARE THEN APPORTIONED AMONG THOSE COUNTIES WHOSE CITIZEN
POPULATIONS TOTAL TWO OR MORE WHOLE RATIOS, WITH ANY REMAINING SEATS
BEING ALLOCATED AMONG THE COUNTIES ON THE BASIS OF "HIGHEST
REMAINDERS."  FINALLY, THOSE COUNTIES RECEIVING MORE THAN ONE SEAT ARE
DIVIDED INTO THE APPROPRIATE NUMBER OF ASSEMBLY DISTRICTS.   IN
ALLOCATING 61 OF THE 150 ASSEMBLY SEATS ON A BASIS WHOLLY UNRELATED TO
POPULATION, AND IN ESTABLISHING THREE SEPARATE CATEGORIES OF COUNTIES
FOR THE APPORTIONMENT OF ASSEMBLY REPRESENTATION, THE CONSTITUTIONAL
PROVISIONS RELATING TO THE APPORTIONMENT OF ASSEMBLY SEATS PLAINLY
RESULT IN A FAVORING OF THE LESS POPULOUS COUNTIES.  UNDER THE NEW
REAPPORTIONMENT BASED ON 1960 CENSUS FIGURES, THE SMALLEST 44 COUNTIES
WILL EACH BE GIVEN ONE SEAT FOR AN AVERAGE OF 62,765 CITIZEN
INHABITANTS PER SEAT, THREE COUNTIES WILL RECEIVE TWO SEATS EACH, WITH
A TOTAL OF SIX ASSEMBLYMEN REPRESENTING AN AVERAGE OF 93,478 CITIZEN
INHABITANTS, AND THE 14 MOST POPULOUS COUNTIES WILL BE GIVEN THE
REMAINING 100 SEATS, RESULTING IN AN AVERAGE REPRESENTATION FIGURE OF
129,183 CITIZEN INHABITANTS EACH.  (FN10) 

ALTHOUGH THE NEW YORK LEGISLATURE HAS NOT YET REAPPORTIONED ON THE
BASIS OF 1960 CENSUS FIGURES, (FN11) THE OUTLINES OF THE FORTHCOMING
APPORTIONMENT CAN BE PREDICTED WITH ASSURANCE.  SINCE THE RULES
PRESCRIBED IN THE NEW YORK CONSTITUTION FOR APPORTIONING THE SENATE ARE
SO EXPLICIT AND DETAILED, THE NEW YORK LEGISLATURE HAS LITTLE
DESCRETION, IN DECENNIALLY ENACTING IMPLEMENTING STATUTORY
REAPPORTIONMENT PROVISIONS, EXCEPT IN DETERMINING WHICH OF THE LESS
POPULOUS COUNTIES ARE TO BE JOINED TOGETHER IN MULTICOUNTY DISTRICTS
AND IN DISTRICTING WITHIN COUNTIES HAVING MORE THAN ONE SENATOR. 
SIMILARLY, THE LEGISLATURE HAS LITTLE DISCRETION IN REAPPORTIONING
ASSEMBLY SEATS.  (FN12)  A NUMBER OF OTHER RATHER DETAILED RULES, SOME
MANDATORY AND SOME ONLY DIRECTIVE, ARE INCLUDED IN THE CONSTITUTIONAL
PROVISIONS PRESCRIBING THE SYSTEM FOR APPORTIONING SEATS IN THE TWO
HOUSES OF THE NEW YORK LEGISLATURE, AND ARE SET OUT IN ART. III, SECS.
2-5, OF THE NEW YORK CONSTITUTION.  (FN13) 

WHEN THE NEW YORK LEGISLATURE WAS REAPPORTIONED IN 1953, ON THE BASIS
OF 1950 CENSUS FIGURES, ASSEMBLYMEN REPRESENTING 37.1% OF THE STATE'S
CITIZENS CONSTITUTED A MAJORITY IN THAT BODY, AND SENATORS REPRESENTING
40.9% OF THE CITIZENS COMPRISED A MAJORITY IN THE SENATE.  UNDER THE
STILL EFFECTIVE 1953 APPORTIONMENT, APPLYING 1960 CENSUS FIGURES,
ASSEMBLYMEN REPRESENTING 34.7% OF THE CITIZENS CONSTITUTE A MAJORITY IN
THE ASSEMBLY, AND SENATORS REPRESENTING 41.8% OF THE CITIZENS
CONSTITUTE A MAJORITY IN THAT BODY.  IF REAPPORTIONMENT WERE CARRIED
OUT UNDER THE EXISTING CONSTITUTIONAL FORMULAS, APPLYING 1960 CENSUS
FIGURES, 37.5% OF THE STATE'S CITIZENS WOULD RESIDE IN DISTRICTS
ELECTING A MAJORITY IN THE ASSEMBLY, AND 38.1% WOULD LIVE IN AREAS
ELECTING A MAJORITY OF THE MEMBERS OF THE SENATE.  WHEN THE STATE WAS
REAPPORTIONED IN 1953 ON THE BASIS OF THE 1950 CENSUS, THE MOST
POPULOUS ASSEMBLY DISTRICT HAD 11.9 TIMES AS MANY CITIZENS AS THE LEAST
POPULOUS ONE, AND A SIMILAR RATIO IN THE SENATE WAS ABOUT 2.4-TO-1. 

ACCORDING TO 1960 CENSUS FIGURES, THE SIX COUNTIES WHERE THE SIX
INDIVIDUAL APPELLANTS RESIDE HAD A CITIZEN POPULATION OF 9,129,780, OR
56.2% OF THE STATE'S TOTAL CITIZEN POPULATION OF 16,240,786.  THEY ARE
CURRENTLY REPRESENTED BY 72 ASSEMBLYMEN AND 28 SENATORS - 48% OF THE
ASSEMBLY AND 48.3% OF THE SENATE.  WHEN THE LEGISLATURE REAPPORTIONS ON
THE BASIS OF THE 1960 CENSUS FIGURES, THESE SIX COUNTIES WILL HAVE 26
SENATE SEATS AND 69 ASSEMBLY SEATS, OR 45.6% AND 46% RESPECTIVELY, OF
THE SEATS IN THE TWO HOUSES.  THE 10 MOST HEAVILY POPULATED COUNTIES IN
NEW YORK, WITH ABOUT 73.5% OF THE TOTAL CITIZEN POPULATION, ARE GIVEN,
UNDER THE CURRENT APPORTIONMENT, 38 SENATE SEATS, 65.5% OF THE
MEMBERSHIP OF THAT BODY, AND 93 ASSEMBLY SEATS, 62% OF THE SEATS IN
THAT HOUSE.  WHEN THE LEGISLATURE REAPPORTIONS ON THE BASIS OF THE 1960
CENSUS FIGURES, THESE SAME 10 COUNTIES WILL BE GIVEN 37 SENATE SEATS
AND 92 ASSEMBLY SEATS, 64.9% AND 61.3%, RESPECTIVELY, OF THE MEMBERSHIP
OF THE TWO HOUSES.  THE FIVE COUNTIES COMPRISING NEW YORK CITY HAVE
45.7% OF THE STATE'S TOTAL CITIZEN POPULATION, AND ARE GIVEN, UNDER THE
CURRENT APPORTIONMENT, 43.1% OF THE SENATE SEATS AND 43.3% OF THE SEATS
IN THE ASSEMBLY.  WHEN THE LEGISLATURE REAPPORTIONS ON THE BASIS OF THE
1960 CENSUS FIGURES, THESE SAME COUNTIES WILL BE GIVEN 36.8% AND 37.3%,
RESPECTIVELY, OF THE MEMBERSHIP OF THE TWO HOUSES. 

UNDER THE EXISTING SENATORIAL APPORTIONMENT, APPLYING 1960 CENSUS
FIGURES, SUFFOLK COUNTY'S ONE SENATOR REPRESENTS A CITIZEN POPULATION
OF 650,112, AND NASSAU COUNTY'S THREE SENATORS REPRESENT AN AVERAGE OF
425,267 CITIZENS EACH.  THE LEAST POPULOUS SENATORIAL DISTRICT, ON THE
OTHER HAND, COMPRISING SARATOGA, WARREN, AND ESSEX COUNTIES, HAS A
TOTAL POPULATION OF ONLY 166,715.  (FN14) UNDER THE FORTHCOMING
REAPPORTIONMENT BASED ON THE 1960 CENSUS, NASSAU COUNTY WILL AGAIN BE
ALLOCATED ONLY THREE SENATE SEATS, WITH AN AVERAGE POPULATION OF
425,267, WHILE THE LEAST POPULOUS SENATORIAL DISTRICT, WHICH WILL
PROBABLY COMPRISE PUTNAM AND ROCKLAND COUNTIES, WILL HAVE A CITIZEN
POPULATION OF ONLY 162,840.  (FN15)  ONONDAGA COUNTY, WITH A TOTAL
CITIZEN POPULATION OF 414,770, LESS THAN THE AVERAGE POPULATION OF EACH
NASSAU COUNTY DISTRICT, WILL NEVERTHELESS BE GIVEN TWO SENATE SEATS. 
BECAUSE OF THE EFFECT OF THE FULL-RATIO REQUIREMENT APPLICABLE ONLY TO
THE POPULOUS COUNTIES, NASSAU COUNTY, DESPITE THE FACT THAT ITS CITIZEN
POPULATION INCREASED FROM 655,690 TO 1,275,801, WILL NOT OBTAIN A
SINGLE ADDITIONAL SENATORIAL SEAT AS A RESULT OF THE REAPPORTIONMENT
BASED ON 1960 CENSUS FIGURES.  AND MONROE COUNTY, WITH A CITIZEN
POPULATION OF 571,029, SINCE NOT HAVING MORE THAN 6% OF THE STATE'S
TOTAL CITIZEN POPULATION, WILL HAVE THE SAME NUMBER OF SENATORS UNDER
THE NEW APPORTIONMENT, THREE, AS NASSAU COUNTY, ALTHOUGH IT HAS LESS
THAN HALF THAT COUNTY'S POPULATION.  NEW YORK CITY'S 20 SENATORS WILL
REPRESENT AN AVERAGE CITIZEN POPULATION OF 360,193, WHILE THE 15 MULTI
COUNTY SENATORIAL DISTRICTS TO BE CREATED UPSTATE WILL HAVE AN AVERAGE
OF ONLY 207,528 CITIZENS PER DISTRICT.  BECAUSE OF THE OPERATION OF THE
FULL-RATIO RULE WITH RESPECT TO COUNTIES HAVING MORE THAN 6% OF THE
STATE'S TOTAL CITIZEN POPULATION EACH, THE UNREPRESENTED REMAINDERS
(ABOVE A FULL FIRST RATIO BUT SHORT OF ANOTHER FULL FIRST RATIO WHICH
IS REQUIRED FOR AN ADDITIONAL SENATE SEAT) IN THREE OF THE URBAN
COUNTIES WILL BE AS FOLLOWS:  NASSAU, 301,353; NEW YORK, 284,805; AND
KINGS, 244,798.  THUS, OVER 800,000 CITIZENS WILL NOT BE COUNTED IN THE
APPORTIONMENT OF SENATE SEATS, EVEN THOUGH THE UNREPRESENTED REMAINDERS
IN TWO OF THESE THREE COUNTIES EQUAL OR EXCEED THE STATEWIDE AVERAGE
POPULATION OF 284,926 CITIZENS PER DISTRICT.  FURTHERMORE, THE EFFECT
OF THE RULE REQUIRING AN INCREASE IN THE NUMBER OF SENATE SEATS BECAUSE
OF THE ENTITLEMENT OF POPULOUS COUNTIES TO ADDED SENATORIAL
REPRESENTATION, COUPLED WITH THE FAILURE TO REDUCE THE SIZE OF THE
SENATE BECAUSE OF REDUCTIONS IN THE NUMBER OF SEATS TO WHICH A POPULOUS
COUNTY IS ENTITLED (AS COMPARED WITH ITS SENATORIAL REPRESENTATION IN
1894), IS THAT THE COMPARATIVE VOTING POWER OF THE POPULOUS COUNTIES IN
THE SENATE DECREASES AS THEIR SHARE OF THE STATE'S TOTAL POPULATION
INCREASES. 

WITH RESPECT TO THE ASSEMBLY, THE SIX ASSEMBLYMEN CURRENTLY ELECTED
FROM NASSAU COUNTY REPRESENT AN AVERAGE CITIZEN POPULATION OF 212,634,
AND ONE OF THAT COUNTY'S CURRENT ASSEMBLY DISTRICTS HAS A CITIZEN
POPULATION OF 314,721.  SUFFOLK COUNTY'S THREE ASSEMBLYMEN PRESENTLY
REPRESENT AN AVERAGE OF 216,704 CITIZENS.  ON THE OTHER HAND, THE LEAST
POPULOUS ASSEMBLY DISTRICT, SCHUYLER COUNTY, HAS A CITIZEN POPULATION,
ACCORDING TO THE 1960 CENSUS, OF ONLY 14,974, AND YET, IN ACCORDANCE
WITH THE CONSTITUTIONAL FORMULA, IS ALLOCATED ONE ASSEMBLY SEAT. 
(FN16)  UNDER THE NEW APPORTIONMENT, SCHUYLER COUNTY WILL AGAIN BE
GIVEN ONE ASSEMBLY SEAT, WHILE ONE PROJECTED MONROE COUNTY DISTRICT
WILL HAVE A CITIZEN POPULATION OF 190,343 AND AN ASSEMBLY DISTRICT IN
SUFFOLK COUNTY WILL HAVE OVER 170,000 CITIZENS.  (FN17)  ADDITIONALLY,
THE AVERAGE POPULATION OF THE 54 ASSEMBLY DISTRICTS IN NEW YORK CITY'S
FOUR POPULOUS COUNTIES WILL BE IN EXCESS OF 132,000 CITIZENS EACH. 

UNDER THE 1953 APPORTIONMENT, BASED ON 1950 CENSUS FIGURES, THE MOST
POPULOUS ASSEMBLY DISTRICT, IN ONONDAGA COUNTY, HAD A CITIZEN
POPULATION OF 167,226, WHILE THE LEAST POPULOUS DISTRICT WAS THAT
COMPRISING SCHUYLER COUNTY, WITH ONLY 14,066 CITIZENS.  IN THE SENATE,
THE MOST POPULOUS DISTRICTS WERE THE FOUR IN BRONX COUNTY, AVERAGING
344,545 CITIZENS EACH, WHILE THE LEAST POPULOUS DISTRICT HAD A CITIZEN
POPULATION OF ONLY 146,666. 

NO ADEQUATE POLITICAL REMEDY TO OBTAIN RELIEF AGAINST ALLEGED
LEGISLATIVE MALAPPORTIONMENT APPEARS TO EXIST IN NEW YORK.  (FN18)  NO
INITIATIVE PROCEDURE EXISTS UNDER NEW YORK LAW.  A PROPOSAL TO AMEND
THE STATE CONSTITUTION CAN BE SUBMITTED TO A VOTE BY THE STATE'S
ELECTORATE ONLY AFTER APPROVAL BY A MAJORITY OF BOTH HOUSES OF TWO
SUCCESSIVE SESSIONS OF THE NEW YORK LEGISLATURE.  (FN19)  A MAJORITY
VOTE OF BOTH HOUSES OF THE LEGISLATURE IS ALSO REQUIRED BEFORE THE
ELECTORATE CAN VOTE ON THE CALLING OF A CONSTITUTIONAL CONVENTION. 
(FN20)  ADDITIONALLY, UNDER NEW YORK LAW THE QUESTION OF WHETHER A
CONSTITUTIONAL CONVENTION SHOULD BE CALLED MUST BE SUBMITTED TO THE
ELECTORATE EVERY 20 YEARS, COMMENCING IN 1957.  (FN21)  BUT EVEN IF A
CONSTITUTIONAL CONVENTION WERE CONVENED, THE SAME ALLEGED
DISCRIMINATION WHICH CURRENTLY EXISTS IN THE APPORTIONMENT OF SENATE
SEATS AGAINST EACH OF THE COUNTIES HAVING 6% OR MORE OF A STATE'S
CITIZEN POPULATION WOULD BE PERPETUATED IN THE ELECTION OF CONVENTION
DELEGATES.  (FN22)  AND, SINCE THE NEW YORK LEGISLATURE HAS RATHER
CONSISTENTLY COMPLIED WITH THE STATE CONSTITUTIONAL REQUIREMENT FOR
DECENNIAL LEGISLATIVE REAPPORTIONMENT IN ACCORDANCE WITH THE RATHER
EXPLICIT CONSTITUTIONAL RULES, ENACTING EFFECTIVE APPORTIONMENT
STATUTES IN 1907, 1917, 1943, AND 1953, JUDICIAL RELIEF IN THE STATE
COURTS TO REMEDY THE ALLEGED MALAPPORTIONMENT WAS PRESUMABLY
UNAVAILABLE.  (FN23)
III. 

IN REYNOLDS V. SIMS, ANTE, P. 533, DECIDED ALSO THIS DATE, WE HELD
THAT THE EQUAL PROTECTION CLAUSE REQUIRES THAT SEATS IN BOTH HOUSES OF
A BICAMERAL STATE LEGISLATURE MUST BE APPORTIONED SUBSTANTIALLY ON A
POPULATION BASIS.  NEITHER HOUSE OF THE NEW YORK LEGISLATURE, UNDER THE
STATE CONSTITUTIONAL FORMULAS AND THE IMPLEMENTING STATUTORY PROVISIONS
HERE ATTACKED, IS PRESENTLY OR, WHEN REAPPORTIONED ON THE BASIS OF 1960
CENSUS FIGURES, WILL BE APPORTIONED SUFFICIENTLY ON A POPULATION BASIS
TO BE CONSTITUTIONALLY SUSTAINABLE.  ACCORDINGLY, WE HOLD THAT THE
DISTRICT COURT ERRED IN UPHOLDING THE CONSTITUTIONALITY OF NEW YORK'S
SCHEME OF LEGISLATIVE APPORTIONMENT. 

WE HAVE EXAMINED THE STATE CONSTITUTIONAL FORMULAS GOVERNING
LEGISLATIVE APPORTIONMENT IN NEW YORK IN A DETAILED FASHION IN ORDER TO
POINT OUT THAT, AS A RESULT OF FOLLOWING THESE PROVISIONS, THE WEIGHT
OF THE VOTES OF THOSE LIVING IN POPULOUS AREAS IS OF NECESSITY
SUBSTANTIALLY DILUTED IN EFFECT.  HOWEVER COMPLICATED OR SOPHISTICATED
AN APPORTIONMENT SCHEME MIGHT BE, IT CANNOT, CONSISTENT WITH THE EQUAL
PROTECTION CLAUSE, RESULT IN A SIGNIFICANT UNDERVALUATION OF THE WEIGHT
OF THE VOTES OF CERTAIN OF A STATE'S CITIZENS MERELY BECAUSE OF WHERE
THEY HAPPEN TO RESIDE.  NEW YORK'S CONSTITUTIONAL FORMULAS RELATING TO
LEGISLATIVE APPORTIONMENT DEMONSTRABLY INCLUDE A BUILT-IN BIAS AGAINST
VOTERS LIVING IN THE STATE'S MORE POPULOUS COUNTIES.  AND THE
LEGISLATIVE REPRESENTATION ACCORDED TO THE URBAN AND SUBURBAN AREAS
BECOMES PROPORTIONATELY LESS AS THE POPULATION OF THOSE AREAS
INCREASES.  WITH THE SIZE OF THE ASSEMBLY FIXED AT 150, WITH A
SUBSTANTIAL NUMBER OF ASSEMBLY SEATS DISTRIBUTED TO SPARSELY POPULATED
COUNTIES WITHOUT REGARD TO POPULATION, AND WITH AN ADDITIONAL SEAT
GIVEN TO COUNTIES HAVING 1 1/2 POPULATION RATIOS, THE POPULATION
VARIANCE RATIOS BETWEEN THE MORE POPULOUS AND THE LESS POPULOUS
COUNTIES WILL CONTINUALLY INCREASE SO LONG AS POPULATION GROWTH
PROCEEDS AT A DISPARATE RATE IN VARIOUS AREAS OF THE STATE.  WITH
RESPECT TO THE SENATE, SIGNIFICANTLY DIFFERENT POPULATION RATIO FIGURES
ARE USED IN DETERMINING THE NUMBER OF SENATE SEATS TO BE GIVEN TO THE
MORE POPULOUS AND THE LESS POPULOUS COUNTIES, AND THE MORE POPULOUS
COUNTIES ARE REQUIRED TO HAVE FULL FIRST RATIOS IN ORDER TO BE ENTITLED
TO ADDITIONAL SENATORIAL REPRESENTATION.  ALSO, IN ASCERTAINING THE
SIZE OF THE SENATE, THE NUMBER OF SEATS BY WHICH THE SENATORIAL
REPRESENTATION OF THE MORE POPULOUS COUNTIES HAS INCREASED SINCE 1894
IS ADDED TO 50, BUT THE NUMBER OF SENATE SEATS THAT SOME OF THE MORE
POPULOUS COUNTIES HAVE LOST SINCE 1894 IS NOT SUBTRACTED FROM THAT
FIGURE.  THUS, AN INCREASINGLY SMALLER PERCENTAGE OF THE STATE'S
POPULATION WILL, IN ALL PROBABILITY, RESIDE IN SENATORIAL DISTRICTS
ELECTING A MAJORITY OF THE MEMBERS OF THAT BODY.  DESPITE THE OPAQUE
INTRICACIES OF NEW YORK'S CONSTITUTIONAL FORMULAS RELATING TO
LEGISLATIVE APPORTIONMENT, WHEN THE EFFECT OF THESE PROVISIONS, AND THE
STATUTES IMPLEMENTING THEM, ON THE RIGHT TO VOTE OF THOSE INDIVIDUALS
LIVING IN THE DISFAVORED AREAS OF THE STATE IS CONSIDERED, WE CONCLUDE
THAT NEITHER THE EXISTING SCHEME NOR THE FORTHCOMING ONE CAN BE
CONSTITUTIONALLY CONDONED. 

WE FIND IT INAPPROPRIATE TO DISCUSS QUESTIONS RELATING TO REMEDIES AT
THE PRESENT TIME, BEYOND WHAT WE SAID IN OUR OPINION IN REYNOLDS. 
(FN24)  SINCE ALL MEMBERS OF BOTH HOUSES OF THE NEW YORK LEGISLATURE
WILL BE ELECTED IN NOVEMBER 1964, THE COURT BELOW, ACTING UNDER
EQUITABLE PRINCIPLES, MUST NOW DETERMINE WHETHER, BECAUSE OF THE
IMMINENCE OF THAT ELECTION AND IN ORDER TO GIVE THE NEW YORK
LEGISLATURE AN OPPORTUNITY TO FASHION A CONSTITUTIONALLY VALID
LEGISLATIVE APPORTIONMENT PLAN, IT WOULD BE DESIRABLE TO PERMIT THE
1964 ELECTION OF LEGISLATORS TO BE CONDUCTED PURSUANT TO THE EXISTING
PROVISIONS, OR WHETHER UNDER THE CIRCUMSTANCES THE EFFECTUATION OF
APPELLANTS' RIGHT TO A PROPERLY WEIGHTED VOICE IN THE ELECTION OF STATE
LEGISLATORS SHOULD NOT BE DELAYED BEYOND THE 1964 ELECTION.  WE
THEREFORE REVERSE THE DECISION BELOW AND REMAND THE CASE TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE VIEWS STATED
HERE AND IN OUR OPINION IN REYNOLDS V. SIMS.  IT IS SO ORDERED. 

FN1  SEE 196 F. SUPP. 758, WHERE THE DISTRICT COURT CONCLUDED THAT
THE SUIT PRESENTED ISSUES WARRANTING THE CONVENING OF A THREE-JUDGE
COURT, OVER DEFENDANTS' MOTIONS TO DISMISS THE COMPLAINT FOR LACK OF
JURISDICTION AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF COULD BE
GRANTED. 

FN2  202 F. SUPP., AT 743.  ALL DECISIONS OF THE DISTRICT COURT, AND
ALSO THIS COURT'S INITIAL DECISION IN THIS LITIGATION, ARE REPORTED SUB
NOM. WMCA, INC., V. SIMON. 

FN3  370 U.S., AT 191.  SHORTLY AFTER WE REMANDED THE CASE, THE
DISTRICT COURT ORDERED DEFENDANTS TO ANSWER OR OTHERWISE MOVE IN
RESPECT TO THE COMPLAINT.  ANOTHER OF THE DEFENDANTS, A NASSAU COUNTY
OFFICIAL, JOINED THE NEW YORK CITY DEFENDANTS IN ADMITTING MOST OF THE
ALLEGATIONS, AND REQUESTED THE COURT TO GRANT PLAINTIFFS THE RELIEF
WHICH THEY WERE SEEKING.  THE REMAINING DEFENDANTS, PRESENTLY
APPELLEES, DENIED THE MATERIAL ALLEGATIONS OF THE COMPLAINT AND
ASSERTED VARIED DEFENSES. 

FN4  AT THE HEARING ON THE MERITS A LARGE AMOUNT OF STATISTICAL
EVIDENCE WAS INTRODUCED SHOWING THE POPULATION AND CITIZEN POPULATION
OF NEW YORK UNDER VARIOUS CENSUSES, INCLUDING THE POPULATIONS OF THE
STATE'S 62 COUNTIES AND THE SENATE AND ASSEMBLY DISTRICTS ESTABLISHED
UNDER THE VARIOUS APPORTIONMENTS.  THE 1953 APPORTIONMENT OF SENATE AND
ASSEMBLY SEATS UNDER THE 1950 CENSUS WAS SHOWN, AND OTHER STATISTICAL
COMPUTATIONS SHOWING THE APPORTIONMENT TO BE MADE BY THE LEGISLATURE
UNDER THE 1960 CENSUS FIGURES, AS A RESULT OF APPLYING THE PERTINENT
CONSTITUTIONAL PROVISIONS, WERE ALSO INTRODUCED INTO EVIDENCE. 

THE DISTRICT COURT REFUSED TO RECEIVE EVIDENCE SHOWING THE EFFECT OF
THE ALLEGED MALAPPORTIONMENT ON CITIZENS OF SEVERAL OF THE MOST
POPULOUS COUNTIES WITH RESPECT TO FINANCIAL MATTERS SUCH AS THE
COLLECTION OF STATE TAXES AND THE DISBURSEMENT OF STATE ASSISTANCE. 
THE COURT ALSO EXCLUDED EVIDENCE OFFERED TO SHOW THAT THE STATE
CONSTITUTION'S APPORTIONMENT FORMULAS WERE DEVISED FOR THE EXPRESS
PURPOSE OF CREATING A CLASS OF CITIZENS WHOSE REPRESENTATION WAS
INFERIOR TO THAT OF A MORE PREFERRED CLASS, AND THAT THERE HAD BEEN
INTENTIONAL DISCRIMINATION AGAINST THE CITIZENS OF NEW YORK CITY IN THE
DESIGNING OF THE LEGISLATIVE APPORTIONMENT PROVISIONS OF THE 1894
CONSTITUTION.  SINCE WE HOLD THAT THE COURT BELOW ERRED IN FINDING THE
NEW YORK LEGISLATIVE APPORTIONMENT SCHEME HERE CHALLENGED TO BE
CONSTITUTIONALLY VALID, WE EXPRESS NO VIEW ON THE CORRECTNESS OF THE
DISTRICT COURT'S EXCLUSION OF THIS EVIDENCE. 

FN5  A CONCURRING OPINION STATED THAT, WHILE THE SIX COUNTIES WHERE
PLAINTIFFS RESIDE CONTAIN 56.2% OF THE STATE'S POPULATION, THEY
COMPRISE ONLY 3.1% OF ITS AREA, AND, IF LEGISLATIVE APPORTIONMENT WERE
"BASED SOLELY ON POPULATION,  ...  3% OF THE STATE'S AREA WOULD
DOMINATE THE REST OF NEW YORK." 

FN6  THE EXISTING PLAN OF APPORTIONMENT OF SENATE AND ASSEMBLY SEATS
IS PROVIDED FOR IN MCKINNEY'S N.Y. LAWS, 1952 (SUPP. 1963), STATE LAW,
SECS 120-124, ENACTED BY THE NEW YORK LEGISLATURE IN 1953. 

FN7  ARTICLE III, SEC. 2, OF THE 1894 NEW YORK CONSTITUTION PROVIDED
FOR A 50-MEMBER SENATE AND A 150-MEMBER ASSEMBLY.  ARTICLE III, SEC. 3,
OF THE 1894 CONSTITUTION PRESCRIBED A DETAILED PLAN FOR THE
APPORTIONMENT OF THE 50 SENATE SEATS, SUBJECT TO PERIODIC ALTERATION BY
THE LEGISLATURE UNDER THE FORMULA PROVIDED FOR IN ART. III, SEC. 4. 

FN8  N.Y. CONST., ART. III, SEC. 4. 

FN9  FOR AN EXTENDED DISCUSSION OF THE APPORTIONMENT OF SEATS IN THE
NEW YORK SENATE UNDER THE PERTINENT STATE CONSTITUTIONAL PROVISIONS,
SEE SILVA, APPORTIONMENT OF THE NEW YORK SENATE, 30 FORD.  L. REV. 595
(1962).  SEE ALSO SILVA, LEGISLATIVE REPRESENTATION - WITH SPECIAL
REFERENCE TO NEW YORK, 27 LAW & CONTEMP.  PROB.  408 (1962). 

FN10  FOR A THOROUGH DISCUSSION OF THE APPORTIONMENT OF SEATS IN THE
NEW YORK ASSEMBLY PURSUANT TO THE RELEVANT STATE CONSTITUTIONAL
PROVISIONS, SEE SILVA, APPORTIONMENT OF THE NEW YORK ASSEMBLY, 31
FORD.  L. REV. 1 (1962). 

FN11  ARTICLE III, SEC. 4, OF THE NEW YORK CONSTITUTION REQUIRES THE
LEGISLATURE TO REAPPORTION AND REDISTRICT SENATE SEATS NO LATER THAN
1966, AND ART. III, SEC. 5, PROVIDES THAT "THE MEMBERS OF THE ASSEMBLY
SHALL BE CHOSEN BY SINGLE DISTRICTS AND SHALL BE APPORTIONED BY THE
LEGISLATURE AT EACH REGULAR SESSION AT WHICH THE SENATE DISTRICTS ARE
READJUSTED OR ALTERED, AND BY THE SAME LAW, AMONG THE SEVERAL COUNTIES
OF THE STATE, AS NEARLY AS MAY BE ACCORDING TO THE NUMBER OF THEIR
RESPECTIVE INHABITANTS, EXCLUDING ALIENS." 

FN12  WHILE THE LEGISLATURE HAS THE SOLE POWER TO APPORTION ASSEMBLY
SEATS AMONG THE STATE'S COUNTIES, IN ACCORDANCE WITH THE CONSTITUTIONAL
FORMULA, THE NEW YORK CONSTITUTION GIVES LOCAL GOVERNMENTAL AUTHORITIES
THE EXCLUSIVE POWER TO DIVIDE THEIR RESPECTIVE COUNTIES INTO ASSEMBLY
DISTRICTS.  A COUNTY HAVING ONLY ONE ASSEMBLYMAN CONSTITUTES ONE
ASSEMBLY DISTRICT BY ITSELF, OF COURSE, AND THEREFORE CANNOT BE DIVIDED
INTO ASSEMBLY DISTRICTS.  BUT, WITH RESPECT TO COUNTIES GIVEN MORE THAN
ONE ASSEMBLY SEAT, THE NEW YORK CONSTITUTION, ART. III, SEC. 5,
PROVIDES:  "IN ANY COUNTY ENTITLED TO MORE THAN ONE MEMBER OF THE
ASSEMBLY, THE BOARD OF SUPERVISORS, AND IN ANY CITY EMBRACING AN ENTIRE
COUNTY AND HAVING NO BOARD OF SUPERVISORS, THE COMMON COUNCIL, OR IF
THERE BE NONE, THE BODY EXERCISING THE POWERS OF A COMMON COUNCIL,
SHALL  ...  DIVIDE SUCH COUNTIES INTO ASSEMBLY DISTRICTS AS NEARLY
EQUAL IN NUMBER OF INHABITANTS, EXCLUDING ALIENS, AS MAY BE  ...  ." 

FN13  UNDER THESE SPECIFIC PROVISIONS, WHILE MORE THAN ONE SENATE OR
ASSEMBLY DISTRICT CAN BE CONTAINED WITHIN THE WHOLE OF A SINGLE COUNTY,
AND WHILE A SENATE DISTRICT MAY CONSIST OF MORE THAN ONE COUNTY, NO
COUNTY BORDER LINE CAN BE BROKEN IN THE FORMATION OF EITHER TYPE OF
DISTRICT.  BOTH SENATE AND ASSEMBLY DISTRICTS ARE REQUIRED TO CONSIST
OF CONTIGUOUS TERRITORY, AND EACH ASSEMBLY DISTRICT IS REQUIRED TO BE
WHOLLY WITHIN THE SAME SENATORIAL DISTRICT.  EACH ASSEMBLY DISTRICT IN
THE SAME COUNTY SHALL CONTAIN, AS NEARLY AS MAY BE, AN EQUAL NUMBER OF
CITIZEN INHABITANTS, AND SHALL CONSIST OF "CONVENIENT" TERRITORY AND BE
AS COMPACT AS PRACTICABLE.  FURTHER DETAILED PROVISIONS RELATE TO THE
DIVISION OF TOWNS BETWEEN ADJOINING DISTRICTS, AND THE EQUALIZATION OF
POPULATION AMONG SENATE DISTRICTS IN THE SAME COUNTY AND ASSEMBLY
DISTRICTS IN THE SAME SENATE DISTRICT. 

FN14  INCLUDED AS APPENDIX D TO THE DISTRICT COURT'S OPINION ON THE
MERITS IS A MAP OF THE STATE OF NEW YORK SHOWING THE 58 SENATORIAL
DISTRICTS UNDER THE EXISTING APPORTIONMENT.  208 F. SUPP., AT 383. 
APPENDIX E CONTAINS A CHART WHICH INCLUDES CENSUS FIGURES SHOWING THE
1960 POPULATION OF EACH OF NEW YORK'S 62 COUNTIES.  ID., AT 384. 

FN15  APPENDIX A TO THE DISTRICT COURT'S OPINION ON THE MERITS IS A
CHART SHOWING THE APPORTIONMENT OF SENATORIAL SEATS WHICH WOULD RESULT
IF THE SENATE WERE REAPPORTIONED ON THE BASIS OF THE PRESENT
CONSTITUTIONAL FORMULA, USING 1960 CENSUS FIGURES, INCLUDING THE
CITIZEN POPULATIONS OF THE 13 MOST POPULOUS COUNTIES, THE NUMBER OF
SENATORS TO BE ALLOCATED TO EACH, AND THE AVERAGE CITIZEN POPULATION
PER SENATOR IN EACH OF THE PROJECTED SENATORIAL DISTRICTS.  208 F.
SUPP., AT 380. 

FN16  INCLUDED AS APPENDIX C TO THE DISTRICT COURT'S OPINION ON THE
MERITS IS A MAP OF THE STATE OF NEW YORK SHOWING THE NUMBER OF ASSEMBLY
SEATS APPORTIONED TO EACH COUNTY UNDER THE EXISTING APPORTIONMENT.  208
F. SUPP., AT 383.  APPENDIX E CONTAINS A CHART WHICH INCLUDES CENSUS
FIGURES SHOWING THE 1960 POPULATION OF EACH OF NEW YORK'S 62 COUNTIES. 
ID., AT 384. 

FN17  APPENDIX B TO THE DISTRICT COURT'S OPINION ON THE MERITS IS A
CHART SHOWING THE APPORTIONMENT OF ASSEMBLY SEATS WHICH WOULD RESULT IF
THE ASSEMBLY WERE REAPPORTIONED UNDER THE PRESENT CONSTITUTIONAL
FORMULA, USING 1960 CENSUS FIGURES, INCLUDING THE NUMBER OF ASSEMBLY
SEATS TO BE GIVEN TO EACH COUNTY AND THE APPROXIMATE CITIZEN POPULATION
IN EACH PROJECTED ASSEMBLY DISTRICT.  208 F. SUPP., AT 381-382. 

FN18  FOR A DISCUSSION OF THE LACK OF FEDERAL CONSTITUTIONAL
SIGNIFICANCE OF THE PRESENCE OR ABSENCE OF AN AVAILABLE POLITICAL
REMEDY, SEE LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, POST,
PP. 736-737, DECIDED ALSO THIS DATE. 

FN19  UNDER ART. XIX, SEC. 1, OF THE NEW YORK CONSTITUTION. 

FN20  ACCORDING TO ART. XIX, SEC. 2, OF THE NEW YORK CONSTITUTION,
WHICH PROVIDES THAT THE QUESTION OF WHETHER A CONSTITUTIONAL CONVENTION
SHOULD BE CALLED CAN BE SUBMITTED TO THE ELECTORATE "AT SUCH TIMES AS
THE LEGISLATURE MAY BY LAW PROVIDE  ...  ." 

FN21  PURSUANT TO ART. XIX, SEC. 2, OF THE NEW YORK CONSTITUTION.  IN
1957 THE STATE'S ELECTORATE, BY A CLOSE VOTE, DISAPPROVED THE CALLING
OF A CONSTITUTIONAL CONVENTION, AND THE QUESTION IS NOT REQUIRED TO BE
SUBMITTED TO THE PEOPLE AGAIN UNTIL 1977. 

FN22  UNDER ART. XIX, SEC. 2, OF THE NEW YORK CONSTITUTION, DELEGATES
TO A CONSTITUTIONAL CONVENTION ARE ELECTED THREE PER SENATORIAL
DISTRICT, PLUS 15 DELEGATES ELECTED AT LARGE. 

FN23  DECISIONS BY THE NEW YORK COURT OF APPEALS INDICATE THAT STATE
COURTS WILL DO NO MORE THAN DETERMINE WHETHER THE NEW YORK LEGISLATURE
HAS PROPERLY COMPLIED WITH THE STATE CONSTITUTIONAL PROVISIONS RELATING
TO LEGISLATIVE APPORTIONMENT IN ENACTING IMPLEMENTING STATUTORY
PROVISIONS.  SEE, E.G., IN RE SHERRILL, 188 N.Y. 185, 81 N.E. 124
(1907); IN RE DOWLING, 219 N.Y. 44, 113 N.E. 545 (1916); AND IN RE FAY,
291 N.Y. 198, 52 N.E.2D 97 (1943).    FN24  SEE REYNOLDS V. SIMS, ANTE,
P. 585. 

FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 589. 

FOR DISSENTING OPINION OF MR. JUSTICE STEWART, SEE POST, P. 744. 
..END :
























MARYLAND COMMITTEE FOR FAIR REPRESENTATION V. TAWES, GOVERNOR OF
MARYLAND 377 U.S. 656 


NO. 29.  ARGUED NOVEMBER 13-14, 1963.  - DECIDED JUNE 15, 1964.  - 229
MD. 406, 184 A.2D 715, REVERSED AND REMANDED. 


THE MARYLAND SENATE UNDER THE 1867 CONSTITUTION HAS 29 SEATS, ONE FOR
EACH OF 23 COUNTIES AND SIX FOR THE CITY OF BALTIMORE'S LEGISLATIVE
DISTRICTS.  THE STATE'S FIVE MOST POPULOUS POLITICAL SUBDIVISIONS WITH
OVER THREE-FOURTHS OF THE 1960 POPULATION ARE REPRESENTED BY ONLY
SLIGHTLY OVER ONE-THIRD OF THE SENATE'S MEMBERSHIP, AND, PRIOR TO 1962
TEMPORARY LEGISLATION, WERE REPRESENTED BY LESS THAN ONE-HALF OF THE
HOUSE OF DELEGATES' MEMBERSHIP.  APPELLANTS, INCLUDING VOTERS IN THOSE
SUBDIVISIONS, SUED APPELLEE OFFICIALS IN A STATE COURT SEEKING A
DECLARATION THAT THE LEGISLATIVE APPORTIONMENT DEPRIVED THEM AND OTHERS
SIMILARLY SITUATED OF RIGHTS PROTECTED UNDER THE EQUAL PROTECTION
CLAUSE, AND SOUGHT A DECLARATION THAT THE LEGISLATURE'S FAILURE TO
CONVENE A CONSTITUTIONAL CONVENTION APPROVED BY A MAJORITY OF THE
VOTERS IN 1950 VIOLATED THE STATE CONSTITUTION.  THE CIRCUIT COURT,
AFTER REVERSAL OF ITS ORDER DISMISSING THE COMPLAINT, HELD THAT AS TO
CERTAIN COUNTIES THERE WAS INVIDIOUS DISCRIMINATION IN THE
APPORTIONMENT OF THE HOUSE BUT REFRAINED FROM PASSING ON THE VALIDITY
OF THE SENATORIAL APPORTIONMENT.  THE LEGISLATURE THEREAFTER ENACTED
LEGISLATION WHOSE EFFECT WAS TO GIVE THOSE FIVE MOST POPULOUS
SUBDIVISIONS 55.6% OF THE MEMBERS OF THE HOUSE, BUT FAILED TO PASS A
CONSTITUTIONAL AMENDMENT REAPPORTIONING THE HOUSE.  ON ANOTHER REMAND
THE CIRCUIT COURT HELD THAT THE SENATE APPORTIONMENT, ALTHOUGH
ESTABLISHED ON A NONPOPULATION, GEOGRAPHICAL BASIS, WAS CONSTITUTIONAL,
AND THE MARYLAND COURT OF APPEALS AFFIRMED, HOLDING THAT THE APPEAL DID
NOT QUESTION THE HOUSE APPORTIONMENT AND UPHOLDING THE SENATE
APPORTIONMENT, IN PART IN RELIANCE ON AN ANALOGY TO THE FEDERAL
SENATE.  OPPOSITION OF LEGISLATORS FROM THE LESS POPULOUS COUNTIES
ACCOUNTED FOR FAILURE OF MANY REAPPORTIONMENT BILLS, AND MARYLAND LAW
MAKES NO PROVISION FOR REAPPORTIONMENT OR THE INITIATION OF LEGISLATION
OR CONSTITUTIONAL AMENDMENTS BY THE PEOPLE.  HELD: 

1.  THIS COURT CANNOT DECIDE ON THE VALIDITY OF THE APPORTIONMENT OF
ONE HOUSE OF A BICAMERAL LEGISLATURE WITHOUT ALSO EVALUATING THE ACTUAL
APPORTIONMENT OF THE OTHER.  P. 673. 

2.  WHETHER OR NOT THE HOUSE IS APPORTIONED ON A POPULATION BASIS,
MARYLAND'S LEGISLATIVE REPRESENTATION SCHEME CANNOT BE SUSTAINED UNDER
THE EQUAL PROTECTION CLAUSE BECAUSE OF THE GROSS DISPARITIES FROM
POPULATION-BASED REPRESENTATION IN THE APPORTIONMENT OF SENATE SEATS. 
P. 673. 

3.  SEATS IN BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE MUST, UNDER
THE EQUAL PROTECTION CLAUSE, BE APPORTIONED SUBSTANTIALLY ON A
POPULATION BASIS.  REYNOLDS V. SIMS, ANTE, P. 533, FOLLOWED.  P. 674. 

4.  NEITHER HOUSE OF THE MARYLAND LEGISLATURE, EVEN AFTER THE
TEMPORARY LEGISLATION, IS APPORTIONED SUFFICIENTLY ON A POPULATION
BASIS TO BE CONSTITUTIONALLY SUSTAINABLE.  P. 674. 

5.  THE SAME CONSTITUTIONAL STANDARDS APPLY WHETHER AN APPORTIONMENT
SCHEME IS EVALUATED IN THE STATE OR FEDERAL COURTS.  P. 674. 

6.  RELIANCE ON THE "FEDERAL ANALOGY" TO SUSTAIN THE MARYLAND
APPORTIONMENT SCHEME IS MISPLACED.  REYNOLDS V. SIMS, SUPRA, FOLLOWED. 
P. 675. 

7.  THE MARYLAND LEGISLATURE HAS SUFFICIENT TIME BEFORE THE 1966
ELECTIONS TO REAPPORTION THE GENERAL ASSEMBLY, BUT UNDER NO
CIRCUMSTANCES SHOULD THOSE ELECTIONS BE CONDUCTED UNDER THE EXISTING OR
OTHER UNCONSTITUTIONAL PLAN.  PP. 675-676. 

MARYLAND COMMITTEE FOR FAIR REPRESENTATION ET AL. V. TAWES, GOVERNOR OF
MARYLAND, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES AN APPEAL FROM A DECISION OF THE MARYLAND COURT OF
APPEALS UPHOLDING THE VALIDITY, UNDER THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION, OF THE
APPORTIONMENT OF SEATS IN THE MARYLAND SENATE. 

I. 

APPELLANTS, RESIDENTS, TAXPAYERS AND VOTERS IN FOUR POPULOUS MARYLAND
COUNTIES (ANNE ARUNDEL, BALTIMORE, MONTGOMERY AND PRINCE GEORGE'S) AND
THE CITY OF BALTIMORE, AND AN UNINCORPORATED ASSOCIATION, ORIGINALLY
BROUGHT AN ACTION IN THE CIRCUIT COURT OF ANNE ARUNDEL COUNTY, IN
AUGUST 1960, CHALLENGING THE APPORTIONMENT OF THE MARYLAND
LEGISLATURE.  DEFENDANTS BELOW, SUED IN THEIR REPRESENTATIVE
CAPACITIES, WERE VARIOUS OFFICIALS CHARGED WITH DUTIES IN CONNECTION
WITH STATE ELECTIONS.  PLAINTIFFS BELOW ALLEGED THAT THE APPORTIONMENT
OF BOTH HOUSES OF THE MARYLAND LEGISLATURE, PURSUANT TO ART. III, SECS.
2 AND 5, OF THE 1867 MARYLAND CONSTITUTION, AS AMENDED, DISCRIMINATED
AGAINST INHABITANTS OF THE MORE POPULOUS COUNTIES AND THE CITY OF
BALTIMORE BY ACCORDING THESE PERSONS SUBSTANTIALLY LESS REPRESENTATION
THAN THAT GIVEN TO PERSONS RESIDING IN OTHER AREAS OF THE STATE.  THEY
CONTENDED THAT THE ALLEGED LEGISLATIVE MALAPPORTIONMENT VIOLATED THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT SINCE THAT
PROVISION PROHIBITS ANY STATE FROM "DENYING, DILUTING OR RESTRICTING
THE EQUALITY OF VOTING RIGHTS OR PRIVILEGES AMONG CLASSES OF OTHERWISE
ELIGIBLE VOTERS SIMILARLY SITUATED," AND ASSERTED THAT THERE WAS NO
POLITICAL REMEDY PRACTICABLY AVAILABLE UNDER MARYLAND LAW TO OBTAIN THE
RELIEF SOUGHT. 

PLAINTIFFS BELOW SOUGHT A DECLARATORY JUDGMENT THAT ART. III, SECS. 2
AND 5, OF THE MARYLAND CONSTITUTION DENY THEM AND THOSE SIMILARLY
SITUATED RIGHTS PROTECTED UNDER THE EQUAL PROTECTION CLAUSE, AND THAT
THE FAILURE OF THE MARYLAND LEGISLATURE TO REAPPORTION ITS MEMBERSHIP
IN ACCORDANCE WITH A FORMULA WHICH WOULD REASONABLY REFLECT PRESENT
POPULATION FIGURES DEPRIVED THEM OF THEIR CONSTITUTIONAL RIGHTS. 
PLAINTIFFS ALSO REQUESTED A DECLARATION THAT THE FAILURE OF THE
MARYLAND GENERAL ASSEMBLY TO CONVENE A CONSTITUTIONAL CONVENTION AS
APPROVED BY A MAJORITY OF THE STATE'S VOTERS IN THE GENERAL ELECTION OF
1950 VIOLATED VARIOUS PROVISIONS OF THE STATE CONSTITUTION. 

PLAINTIFFS REQUESTED THAT, UNLESS THE NOVEMBER 1962 ELECTION AND
ELECTIONS THEREAFTER WERE CONDUCTED ON AN AT-LARGE BASIS, THE COURT
ENJOIN DEFENDANTS FROM PERFORMING VARIOUS ELECTION DUTIES UNTIL SUCH
TIME AS THE GENERAL ASSEMBLY SHOULD SUBMIT FOR A REFERENDUM VOTE BY
ELIGIBLE STATE VOTERS AN AMENDMENT TO ART. III, SECS. 2 AND 5, WHICH
WOULD REAPPORTION THE MEMBERSHIP OF THE MARYLAND LEGISLATURE ON A
POPULATION BASIS IN CONFORMITY WITH THE REQUIREMENTS OF THE FOURTEENTH
AMENDMENT.  PLAINTIFFS ALSO ASKED THE COURT TO RETAIN JURISDICTION OF
THE CASE UNTIL THE GENERAL ASSEMBLY SUBMITTED SUCH A CONSTITUTIONAL
AMENDMENT TO THE STATE'S VOTERS. 

ON FEBRUARY 21, 1962, THE CIRCUIT COURT SUSTAINED DEFENDANTS'
DEMURRERS TO PLAINTIFFS' COMPLAINT AND DISMISSED THE COMPLAINT WITHOUT
LEAVE TO AMEND. ON APPEAL, THE MARYLAND COURT OF APPEALS, ON APRIL 25,
1962, SPLITTING 5-TO-2, REVERSED THE ORDER OF THE CIRCUIT COURT AND
REMANDED THE CASE FOR A HEARING ON THE MERITS.  228 MD. 412, 180 A.2D
656.  FINDING THAT THE FEDERAL QUESTIONS RAISED WERE NOT NONJUSTICIABLE
IN A MARYLAND STATE COURT, THE MARYLAND COURT OF APPEALS, AFTER
DISCUSSING THIS COURT'S DECISION IN BAKER V. CARR, 369 U.S. 186, STATED
THAT: 

"IF ANY ACTION NEEDS TO BE TAKEN IN ORDER TO BRING THE STATE'S SYSTEM
OF LEGISLATIVE APPORTIONMENT INTO CONFORMITY WITH THE REQUIREMENTS OF
THE FOURTEENTH AMENDMENT  ...  , IT IS PREFERABLE FROM THE POINT OF
VIEW OF RESPONSIBLE SELF-GOVERNMENT THAT THE STATE'S OWN DULY
CONSTITUTED OFFICIALS AND THE PEOPLE THEMSELVES UNDERTAKE THE TASK,
RATHER THAN LEAVE TO THE FEDERAL JUDICIARY THE DELICATE AND PERHAPS
UNWELCOME TASK OF DOING SO."  (FN1) 

WHILE RECOGNIZING THAT "THERE WAS NO NEED IN BAKER V. CARR  ... FOR
THE SUPREME COURT TO PASS UPON THE POWER OF A STATE COURT TO DEAL WITH
QUESTIONS OF STATE LEGISLATIVE APPORTIONMENT," THE MARYLAND COURT OF
APPEALS FOUND "IMPLICIT IN THE VACATION OF THE JUDGMENT AND REMAND BY
THE SUPREME COURT OF THE UNITED STATES TO THE SUPREME COURT OF MICHIGAN
OF THE CASE OF SCHOLLE V. HARE" THIS COURT'S VIEW THAT CASES
CHALLENGING THE CONSTITUTIONALITY OF STATE LEGISLATIVE APPORTIONMENTS
ARE "APPROPRIATE FOR CONSIDERATION BY A STATE COURT  ...  ."  (FN2)
FINDING "A STRONG IMPLICATION IN THE BAKER DECISION THAT THERE MUST BE
SOME REASONABLE RELATIONSHIP OF POPULATION, OR ELIGIBLE VOTERS, TO
REPRESENTATION IN THE GENERAL ASSEMBLY, IF AN APPORTIONMENT IS TO
ESCAPE THE LABEL OF CONSTITUTIONALLY-PROHIBITED INVIDIOUS
DISCRIMINATION," THE MARYLAND COURT NEVERTHELESS STATED THAT IT WAS NOT
"POSSIBLE (OR ADVISABLE IF IT WERE POSSIBLE) TO STATE A PRECISE,
INFLEXIBLE AND INTRACTABLE FORMULA FOR CONSTITUTIONAL REPRESENTATION IN
THE GENERAL ASSEMBLY."  (FN3)  IN REMANDING TO THE LOWER STATE COURT TO
"RECEIVE EVIDENCE TO DETERMINE WHETHER OR NOT AN INVIDIOUS
DISCRIMINATION DOES EXIST WITH RESPECT TO REPRESENTATION IN EITHER OR
BOTH HOUSES" OF THE MARYLAND LEGISLATURE, THE COURT OF APPEALS STATED
THAT, IF THE MARYLAND CONSTITUTIONAL PROVISIONS RELATING TO LEGISLATIVE
APPORTIONMENT WERE HELD INVALID AS TO THE NOVEMBER 1962 ELECTION, THE
CIRCUIT COURT SHOULD "ALSO DECLARE THAT THE LEGISLATURE HAS THE POWER,
IF CALLED INTO SPECIAL SESSION BY THE GOVERNOR AND SUCH ACTION BE
DEEMED APPROPRIATE BY IT, TO ENACT A BILL REAPPORTIONING ITS MEMBERSHIP
FOR PURPOSES" OF THAT ELECTION. 

ON MAY 24, 1962, THE CIRCUIT COURT, AFTER RECEIVING VARIOUS EXHIBITS
AND HEARING ARGUMENT, HELD THAT THE APPORTIONMENT OF THE MARYLAND HOUSE
OF DELEGATES INVIDIOUSLY DISCRIMINATED AGAINST THE PEOPLE OF BALTIMORE,
MONTGOMERY AND PRINCE GEORGE'S COUNTIES, BUT NOT AGAINST THE PEOPLE OF
BALTIMORE CITY OR ANNE ARUNDEL COUNTY, AND THAT THEREFORE ART. III,
SEC. 5, OF THE MARYLAND CONSTITUTION, WHICH APPORTIONS SEATS IN THE
HOUSE OF DELEGATES, VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENEMENT.  ALTHOUGH STATING THAT THE APPORTIONMENT OF THE
MARYLAND SENATE MIGHT BE "CONSTITUTIONALLY BASED UPON AREA AND
GEOGRAPHICAL LOCATION REGARDLESS OF POPULATION OR ELIGIBLE VOTERS," THE
CIRCUIT COURT REFRAINED FROM FORMALLY PASSING ON THE VALIDITY OF THE
SENATORIAL APPORTIONMENT.  THE LOWER COURT ALSO STATED THAT THE
MARYLAND LEGISLATURE HAD THE POWER TO ENACT A STATUTE PROVIDING FOR THE
REAPPORTIONMENT OF THE HOUSE OF DELEGATES AS WELL AS TO PROPOSE A
CONSTITUTIONAL AMENDMENT PROVIDING FOR SUCH A REAPPORTIONMENT.  IT
WITHHELD THE GRANTING OF INJUNCTIVE RELIEF BUT RETAINED JURISDICTION TO
DO SO BEFORE THE NOVEMBER 1962 ELECTION IF SUCH BECAME APPROPRIATE. 

ON MAY 31, 1962, THE MARYLAND LEGISLATURE, CALLED INTO SPECIAL
SESSION BY THE GOVERNOR, ENACTED TEMPORARY "STOP-GAP" LEGISLATION
REAPPORTIONING SEATS IN THE HOUSE OF DELEGATES, BY ALLOCATING 19 ADDED
SEATS TO THE MORE POPULOUS AREAS OF THE STATE.  (FN4)  HOWEVER, THE
LEGISLATURE FAILED TO PASS A PROPOSED CONSTITUTIONAL AMENDMENT
REAPPORTIONING THE MARYLAND HOUSE.  THE NEWLY ENACTED APPORTIONMENT
STATUTE EXPIRES AUTOMATICALLY ON JANUARY 1, 1966, EXCEPT THAT, IF A
CONSTITUTIONAL AMENDMENT SUPERSEDING THE STATUTORY PROVISIONS IS
SUBMITTED TO THE VOTERS AT THE 1964 GENERAL ELECTION AND IS REJECTED,
THE STATUTE WILL CONTINUE IN FORCE UNTIL JANUARY 1, 1970.  THE STATUTE
FURTHER PROVIDES THAT UPON ITS EXPIRATION THE HOUSE OF DELEGATES SHALL
AGAIN BE APPORTIONED ACCORDING TO ART. III, SEC. 5, WHICH THE CIRCUIT
COURT HAD PREVIOUSLY HELD UNCONSTITUTIONAL.  NO APPEAL WAS TAKEN FROM
THE CIRCUIT COURT'S DECISION HOLDING INVALID THE EXISTING APPORTIONMENT
OF THE MARYLAND HOUSE OF DELEGATES. 

FOLLOWING THE CIRCUIT COURT'S FAILURE TO RULE UPON THE VALIDITY OF
THE SENATORIAL APPORTIONMENT, PLAINTIFFS APPEALED THIS QUESTION TO THE
MARYLAND COURT OF APPEALS.  ON JUNE 8, 1962, THE COURT OF APPEALS
ORDERED THE CASE REMANDED TO THE CIRCUIT COURT FOR A PROMPT DECISION ON
WHETHER ART. III, SEC. 2, OF THE MARYLAND CONSTITUTION, APPORTIONING
SEATS IN THE SENATE, WAS VALID OR INVALID UNDER THE EQUAL PROTECTION
CLAUSE.  ON JUNE 28, 1962, THE CIRCUIT COURT HELD THAT THE
APPORTIONMENT OF THE MARYLAND SENATE DID NOT VIOLATE THE FEDERAL
CONSTITUTION BECAUSE IT FELT THAT AN APPORTIONMENT BASED UPON AREA AND
GEOGRAPHICAL LOCATION, WITHOUT REGARD TO POPULATION, SERVED TO PROTECT
MINORITIES, PRESERVE LEGISLATIVE CHECKS AND BALANCES, AND PREVENT
HASTY, THOUGH TEMPORARILY POPULAR, LEGISLATION, AND ACCORDED WITH
HISTORY, TRADITION AND REASON, PLACING CONSIDERABLE RELIANCE ON A
COMPARISON OF THAT BODY OF THE MARYLAND LEGISLATURE WITH THE FEDERAL
SENATE. 

ON JULY 23, 1962, THE MARYLAND COURT OF APPEALS, SPLITTING 5-TO-3, IN
A PER CURIAM ORDER AFFIRMED THE CIRCUIT COURT'S DECISION HOLDING VALID
THE APPORTIONMENT OF THE MARYLAND SENATE, NOTING THAT ITS REASONS WOULD
BE STATED IN AN OPINION TO BE FILED AT A LATER DATE.  PLAINTIFFS'
MOTION FOR REARGUMENT, CALLING ATTENTION TO RECENT DECISIONS AND
DEVELOPMENTS RELATING TO LEGISLATIVE APPORTIONMENT, WAS DENIED BY THE
MARYLAND COURT OF APPEALS ON SEPTEMBER 11, 1962.  ON SEPTEMBER 25,
1962, THE COURT OF APPEALS FILED ITS OPINION.  229 MD. 406, 184 A.2D
715.  IT STATED INITIALLY THAT THE APPEAL DID NOT QUESTION THE
APPORTIONMENT OF THE MARYLAND HOUSE.  CONTINUING, THE MARYLAND COURT
INDICATED THAT IT WAS AFFIRMING THE DECISION BELOW AND UPHOLDING THE
CONSTITUTIONALITY OF THE SENATORIAL APPORTIONMENT, ON THE GROUNDS THAT:
(1) EACH MARYLAND COUNTY HAS SINCE 1837 HAD THE SAME NUMBER OF SENATE
SEATS, EXCEPT THAT BALTIMORE CITY HAD PERIODICALLY BEEN GIVEN
ADDITIONAL REPRESENTATION, AND MARYLAND COUNTIES "HAVE ALWAYS BEEN AN
INTEGRAL PART OF THE STATE GOVERNMENT" AND HAVE CONSISTENTLY POSSESSED
AND MAINTAINED "DISTINCT INDIVIDUALITIES"; (2) SINCE THE IDEA OF A
BICAMERAL LEGISLATURE ASSUMES TWO DIFFERENT METHODS OF APPORTIONMENT IN
THE TWO HOUSES TO CHECK "HASTY AND ILL-CONCEIVED LEGISLATION," ONE
HOUSE CAN BE CONSTITUTIONALLY APPORTIONED ON A NONPOPULATION,
GEOGRAPHICAL BASIS; AND (3) GEOGRAPHICAL REPRESENTATION IN THE MARYLAND
SENATE, BASED ON POLITICAL SUBDIVISIONS, IS CLOSELY ANALOGOUS TO THE
REPRESENTATION OF THE STATES IN THE FEDERAL SENATE.  THE DISSENTING
JUDGES POINTED OUT THAT THE HOUSE OF DELEGATES, EVEN AS REAPPORTIONED,
WAS STILL NOT APPORTIONED ON A POPULATION BASIS, AND THAT GROSS
DISPARITIES FROM POPULATION-BASED REPRESENTATION EXISTED IN THE
SENATORIAL APPORTIONMENT.  THE DISSENTERS FOUND THAT NEITHER HISTORY
NOR RELIANCE ON THE SO-CALLED FEDERAL ANALOGY PROVIDED A RATIONAL BASIS
FOR SUCH GROSS DISPARITIES FROM POPULATION-BASED REPRESENTATION AS WERE
FOUND IN THE APPORTIONMENT OF THE MARYLAND LEGISLATURE, BEFORE AND
AFTER THE 1962 REAPPORTIONMENT.  SINCE THE MARYLAND COURT OF APPEALS
UPHELD THE SENATORIAL APPORTIONMENT PLAN, THE NOVEMBER 1962 ELECTION OF
SENATORS WAS CONDUCTED PURSUANT THERETO, AND DELEGATES WERE ELECTED
UNDER THE SCHEME PROVIDED BY THE 1962 LEGISLATION.  NOTICE OF APPEAL TO
THIS COURT FROM THE MARYLAND COURT OF APPEALS' DECISION WAS TIMELY
FILED, AND WE NOTED PROBABLE JURISDICTION ON JUNE 10, 1963.  374 U.S.
804. 

                            II. 

THE MARYLAND CONSTITUTION OF 1867 VESTS LEGISLATIVE POWER IN A
BICAMERAL GENERAL ASSEMBLY CONSISTING OF A SENATE AND A HOUSE OF
DELEGATES.  ACCORDING TO OFFICIAL CENSUS FIGURES, MARYLAND HAD A 1960
POPULATION OF 3,100,689, AND THE COMBINED POPULATION OF THE FIVE MOST
POPULOUS POLITICAL SUBDIVISIONS OF MARYLAND - THE COUNTIES OF ANNE
ARUNDEL, BALTIMORE, MONTGOMERY AND PRINCE GEORGE'S, AND THE CITY OF
BALTIMORE - WAS 2,336,409.  THUS, ABOUT 75.3% OF THE STATE'S TOTAL
POPULATION LIVED IN THESE FIVE MOST POPULOUS SUBDIVISIONS, AS OF 1960,
WHILE ABOUT 24.7% LIVED IN THE REMAINING 19 COUNTIES OF THE STATE. 
UNDER ART. III, SEC. 2, OF THE MARYLAND CONSTITUTION, EACH OF THE
STATE'S 23 COUNTIES IS ALLOCATED ONE SEAT IN THE MARYLAND SENATE, AND
EACH OF THE SIX LEGISLATIVE DISTRICTS OF THE CITY OF BALTIMORE IS ALSO
ENTITLED TO ONE SENATE SEAT - RESULTING IN A TOTAL OF 29 SEATS IN THE
MARYLAND SENATE.  THUS, THE FIVE MOST POPULOUS POLITICAL SUBDIVISIONS,
WITH OVER THREE-FOURTHS OF THE STATE'S TOTAL 1960 POPULATION, ARE
REPRESENTED BY ONLY 10 SENATORS, OR SLIGHTLY OVER ONE-THIRD OF THE
MEMBERSHIP OF THAT BODY.   ON THE OTHER HAND, THE REMAINING 19
COUNTIES, WITH AN AGGREGATE POPULATION OF LESS THAN ONE-FOURTH OF THE
STATE'S POPULATION, ARE NEVERTHELESS REPRESENTED BY 19 SENATORS, ALMOST
TWO-THIRDS OF THE MEMBERS OF THAT BODY.  (FN5)  AND THE 15 LEAST
POPULOUS COUNTIES, WITH ONLY 14.1% OF THE TOTAL STATE POPULATION, CAN
ELECT A CONTROLLING MAJORITY OF THE MEMBERS OF THE MARYLAND SENATE.  A
MAXIMUM POPULATION-VARIANCE RATIO OF ALMOST 32-TO-1 EXISTS BETWEEN THE
MOST POPULOUS AND LEAST POPULOUS COUNTIES.  KENT COUNTY, WITH A 1960
POPULATION OF 15,481, AND CALVERT COUNTY, WHERE ONLY 15,826 RESIDED,
ARE EACH ENTITLED TO ONE SENATE SEAT, WHILE BALTIMORE COUNTY, WITH A
1960 POPULATION OF 492,428, IS LIKEWISE ENTITLED TO ONLY ONE SENATOR. 
AS TO THE APPORTIONMENT OF THE MARYLAND HOUSE OF DELEGATES, ART. III,
SEC. 5, OF THE MARYLAND CONSTITUTION, IN FORCE WHEN THIS LITIGATION WAS
COMMENCED BUT SUBSEQUENTLY HELD UNCONSTITUTIONAL BY THE MARYLAND COURTS
AND SUPERSEDED BY THE TEMPORARY LEGISLATION ENACTED IN 1962, PRESCRIBED
THE REPRESENTATION ACCORDED TO EACH OF THE STATE'S POLITICAL
SUBDIVISIONS IN THE MARYLAND HOUSE.  THE MEMBERSHIP OF THE HOUSE WAS
NUMERICALLY FIXED AT 123 BY THIS CONSTITUTIONAL PROVISION, WITH EACH
COUNTY BEING GIVEN AT LEAST TWO HOUSE SEATS.  SEVEN COUNTIES WERE GIVEN
TWO SEATS EACH, FIVE COUNTIES WERE ALLOCATED THREE SEATS, AND FOUR
COUNTIES WERE GIVEN FOUR HOUSE MEMBERS.  THE REMAINING SEVEN COUNTIES,
INCLUDING ALL OF THOSE FOUR POPULOUS COUNTIES WHERE APPELLANTS RESIDE,
WERE EACH ALLOTTED SIX HOUSE SEATS, AND THE SIX LEGISLATIVE DISTRICTS
OF THE CITY OF BALTIMORE WERE GIVEN SIX DELEGATES EACH.  (FN6)  UNDER
THE THEN-EXISTING HOUSE APPORTIONMENT, THE FIVE MOST POPULOUS
SUBDIVISIONS, WITH 75.3% OF THE STATE'S 1960 POPULATION, ELECTED ONLY
60 DELEGATES, OR LESS THAN ONE-HALF OF THE MEMBERS OF THE HOUSE OF
DELEGATES, WHILE THE OTHER 19 COUNTIES, WITH ONLY 24.7% OF THE
POPULATION, WERE REPRESENTED BY 63 DELEGATES, OR 51.3% OF THE TOTAL
MEMBERSHIP.  A MAXIMUM POPULATION-VARIANCE RATIO OF OVER 12-TO-1
EXISTED BETWEEN THE MOST POPULOUS AND LEAST POPULOUS COUNTIES. 
BALTIMORE COUNTY, WITH A 1960 POPULATION OF 492,428 HAD ONLY THE SAME
NUMBER OF HOUSE SEATS, SIX, AS DID GARRETT AND SOMERSET COUNTIES, WHOSE
COMBINED 1960 POPULATION WAS 40,043. 

UNDER THE 1962 TEMPORARY LEGISLATION REAPPORTIONING THE MARYLAND
HOUSE OF DELEGATES, THE ONLY PRACTICAL EFFECT IS TO ADD 19 HOUSE SEATS,
INCREASING THE MEMBERSHIP OF THAT BODY FROM 123 TO 142, FOR THE FOUR
YEAR TERMS OF DELEGATES ELECTED IN NOVEMBER 1962.  SEVEN SEATS WERE
ADDED FOR MONTGOMERY AND PRINCE GEORGE'S COUNTIES, TWO OF BALTIMORE
CITY'S LEGISLATIVE DISTRICTS WERE GIVEN TWO AND ONE ADDITIONAL SEATS,
RESPECTIVELY, AND ONE SEAT WAS ADDED FOR ANNE ARUNDEL COUNTY.  THE
BASIC SCHEME EMBODIED IN THE TEMPORARY LEGISLATION IS TO ALLOCATE TWO
HOUSE SEATS TO EACH COUNTY AND TO EACH OF THE SIX BALTIMORE CITY
LEGISLATIVE DISTRICTS, AND THEN TO DISTRIBUTE THE REMAINING SEATS, OUT
OF A FIXED NUMBER OF 123, AMONG THE COUNTIES ON A POPULATION BASIS. 
THE NEW LAW PROVIDED, HOWEVER, THAT DURING THE INITIAL FOUR-YEAR PERIOD
OF ITS OPERATION, "AND FOR ANY ADDITIONAL PERIOD DURING WHICH  ...  IT
MAY BE EXTENDED," EACH COUNTY AND LEGISLATIVE DISTRICT WOULD BE
ENTITLED, AS A MINIMUM, TO THE NUMBER OF HOUSE SEATS THAT IT HAD ON
JANUARY 1, 1962.  THUS, THIS MEANS THAT IN ACTUALITY THERE WILL BE MORE
THAN 123 DELEGATES AND THAT THE COUNTIES AND LEGISLATIVE DISTRICTS
WHICH WERE ALLEGEDLY OVERREPRESENTED UNDER THE OLD CONSTITUTIONAL
PROVISIONS WILL RETAIN MUCH OF THEIR FORMER RELATIVE POWER.  UNDER THE
NEW LEGISLATION, THE FIVE MOST POPULOUS SUBDIVISIONS, WITH 75.3% OF THE
STATE'S 1960 POPULATION, ELECT 79 DELEGATES, OR 55.6% OF THE MEMBERS IN
THE MARYLAND HOUSE.  THE REMAINING 19 COUNTIES, WITH LESS THAN ONE
FOURTH OF THE STATE'S POPULATION, ELECT 44.4% OF THE MEMBERS OF THE
HOUSE OF DELEGATES.  COUNTIES WITH ONLY 35.6% OF THE STATE'S TOTAL
POPULATION ELECT A MAJORITY OF THE MEMBERS OF THE HOUSE UNDER THE 1962
LEGISLATION.  A MAXIMUM POPULATION-VARIANCE RATIO OF ALMOST 6-TO-1
STILL EXISTS BETWEEN THE MOST POPULOUS AND LEAST POPULOUS HOUSE
DISTRICTS.  A DELEGATE FROM SOMERSET COUNTY REPRESENTS AN AVERAGE OF
6,541 PERSONS, WHEREAS A DELEGATE FROM BALTIMORE COUNTY REPRESENTS AN
AVERAGE OF 37,879.  UNDER BOTH THE PREVIOUS AND PRESENT APPORTIONMENT
PROVISIONS, MEMBERS OF BOTH THE SENATE AND THE HOUSE OF DELEGATES IN
MARYLAND ARE ALL ELECTED TO SERVE FOUR-YEAR TERMS.  (FN7)  NONE OF THE
MARYLAND COUNTIES, UNDER EITHER THE OLD OR REVISED HOUSE APPORTIONMENT
SCHEMES, WERE DIVIDED INTO DISTRICTS FOR THE PURPOSE OF ELECTING
DELEGATES.  RATHER, ALL HOUSE MEMBERS ARE ELECTED AT LARGE WITHIN EACH
COUNTY (AND LEGISLATIVE DISTRICT), REGARDLESS OF THE NUMBER OF SEATS
ALLOCATED THERETO.  (FN8) 

MARYLAND LAW MAKES NO PROVISION FOR THE INITIATION OF LEGISLATION OR
CONSTITUTIONAL AMENDMENTS BY THE PEOPLE.  (FN9)  CERTAIN CONSTITUTIONAL
PROVISIONS PROVIDE, HOWEVER, FOR THE TAKING, AT A GENERAL ELECTION EACH
20 YEARS, OF "THE SENSE OF THE PEOPLE IN REGARD TO CALLING A CONVENTION
FOR ALTERING THIS CONSTITUTION."  (FN10)  PURSUANT TO THESE PROVISIONS,
A STATEWIDE REFERENDUM ON WHETHER A CONSTITUTIONAL CONVENTION, WHICH
WOULD HAVE THE POWER TO PROPOSE AMENDMENTS TO THE MARYLAND
CONSTITUTION, INCLUDING AMENDMENTS RELATING TO THE REAPPORTIONMENT OF
REPRESENTATION IN THE GENERAL ASSEMBLY, SHOULD BE CALLED WAS SUBMITTED
TO THE STATE'S VOTERS AT THE GENERAL ELECTION IN 1950.  AN OVERWHELMING
MAJORITY OF THE VOTERS (BY A VOTE OF 200,439 TO 56,998) INDICATED THEIR
APPROVAL OF THE CALLING OF A CONSTITUTIONAL CONVENTION.  NEVERTHELESS,
EVEN THOUGH NUMEROUS BILLS PROVIDING FOR THE CONVENING OF A
CONSTITUTIONAL CONVENTION WERE INTRODUCED INTO THE GENERAL ASSEMBLY
BETWEEN 1951 AND 1962, THE GENERAL ASSEMBLY REPEATEDLY REFUSED TO ENACT
THE NECESSARY ENABLING LEGISLATION.  (FN11) THUS, DESPITE THE FAVORABLE
VOTE OF THE STATE'S ELECTORATE, NO CONSTITUTIONAL CONVENTION HAS EVER
BEEN CONVENED.  THE NEXT SUCH VOTE WILL NOT BE TAKEN UNTIL 1970, AND,
EVEN IF THE PEOPLE AGAIN APPROVE THE CALLING OF A CONSTITUTIONAL
CONVENTION, IT CANNOT BE ACTUALLY CONVENED WITHOUT THE ENACTMENT OF
ENABLING LEGISLATION BY THE MARYLAND GENERAL ASSEMBLY. 

ALTHOUGH OVER 10 REAPPORTIONMENT BILLS WERE INTRODUCED INTO THE
GENERAL ASSEMBLY BETWEEN 1951 AND 1960, ALL FAILED TO PASS BECAUSE OF
OPPOSITION BY LEGISLATORS FROM THE LESS POPULOUS COUNTIES.  BOTH HOUSES
OF THE GENERAL ASSEMBLY, DURING ITS 1960 REGULAR SESSION, DECLINED TO
PASS BILLS INCORPORATING THE LIMITED REAPPORTIONMENT RECOMMENDATIONS OF
A SPECIAL COMMISSION CREATED BY THE GOVERNOR IN 1959 TO INVESTIGATE AND
REPORT ON THE MATTER OF LEGISLATIVE REAPPORTIONMENT.  NUMEROUS PROPOSED
REAPPORTIONMENT AMENDMENTS AND REAPPORTIONMENT BILLS WERE INTRODUCED AT
THE REGULAR SESSION OF THE MARYLAND LEGISLATURE IN 1961 AND 1962, BUT
ALL FAILED OF PASSAGE.  RELIEF FROM THE ALLEGEDLY DISCRIMINATORY
APPORTIONMENT THROUGH CONSTITUTIONAL AMENDMENT WAS ALSO APPARENTLY
UNAVAILABLE, AS A PRACTICAL MATTER, TO APPELLANTS.  ARTICLE XIV, SEC.
1, OF THE MARYLAND CONSTITUTION REQUIRES A THREE-FIFTHS AFFIRMATIVE
VOTE OF THE MEMBERSHIP OF BOTH HOUSES OF THE GENERAL ASSEMBLY IN ORDER
TO HAVE PROPOSED CONSTITUTIONAL AMENDMENTS SUBMITTED TO THE STATE'S
VOTERS AT A REFERENDUM.  ADMITTEDLY, LEGISLATORS FROM THE LESS POPULOUS
COUNTIES CONTROLLED EACH HOUSE OF THE MARYLAND LEGISLATURE.  AND EVEN
IF A CONSTITUTIONAL CONVENTION WERE CONVENED, REPRESENTATION AT THE
CONVENTION WOULD BE BASED ON THE ALLOCATION OF SEATS IN THE ALLEGEDLY
MALAPPORTIONED GENERAL ASSEMBLY.  (FN12)  SIGNIFICANTLY, THE MARYLAND
COURT OF APPEALS, IN ITS INITIAL OPINION IN THIS LITIGATION, STATED
THAT "THE CHANCES OF THE APPELLANTS' OBTAINING RELIEF FROM THE
INFRINGEMENT UPON THEIR ALLEGED CONSTITUTIONAL RIGHTS, OTHER THAN FROM
THE COURTS, IS SO REMOTE AS TO BE PRACTICALLY NIL."  (FN13) 

NEITHER IN THE MARYLAND CONSTITUTION NOR IN THE STATE STATUTES IS
THERE ANY PROVISION RELATING TO THE REAPPORTIONMENT OF REPRESENTATION
IN THE GENERAL ASSEMBLY.  APART FROM THE LIMITED AND TEMPORARY
REAPPORTIONMENT OF THE HOUSE ENACTED AT THE 1962 SPECIAL SESSION OF THE
MARYLAND LEGISLATURE, FOLLOWING THE HOLDING OF THE CIRCUIT COURT THAT
THE HOUSE APPORTIONMENT PROVISIONS OF THE MARYLAND CONSTITUTION WERE
INVALID, ALL EFFORTS SINCE 1867 TO ACHIEVE A SUBSTANTIAL
REAPPORTIONMENT OF SEATS IN THE GENERAL ASSEMBLY, WITH TWO RATHER MINOR
EXCEPTIONS, HAVE BEEN FUTILE.  (FN14)  IN 1900, THE CITY OF BALTIMORE,
BECAUSE OF ITS EXPANDING POPULATION, WAS GIVEN AN ADDITIONAL SENATE
SEAT AND AN ADDITIONAL LEGISLATIVE DISTRICT, BRINGING ITS TOTAL TO FOUR
SENATORS AND LEGISLATIVE DISTRICTS.  TWO ADDITIONAL SENATORS AND TWO
MORE LEGISLATIVE DISTRICTS WERE ADDED TO BALTIMORE CITY'S
REPRESENTATION IN 1922.  APART FROM THESE INCREASES IN THE LEGISLATIVE
REPRESENTATION OF THE CITY OF BALTIMORE, MEMBERSHIP IN THE MARYLAND
SENATE REMAINS AS PROVIDED FOR IN THE 1867 CONSTITION.  AND, UNTIL 19
ADDITIONAL HOUSE SEATS WERE CREATED AND DISTRIBUTED AMONG THE FIVE MOST
POPULOUS POLITICAL SUBDIVIDIONS IN 1962, REPRESENTATION IN THE HOUSE OF
DELEGATES HAD BEEN BASED, FOR A PERIOD OF 95 YEARS, ON THE LIMITED
POPULATION FORMULA EMBODIED IN THE 1867 MARYLAND CONSTITUION.  (FN15)

       III. 

IN ITS UNREPORTED OPINION HOLDING THE MARYLAND SENATORIAL
APPORTIONMENT VALID, THE CIRCUIT COURT, AFTER REFERRING TO THE
REAPPORTIONMENT OF SEATS IN THE HOUSE OF DELEGATES BY THE MARYLAND
LEGISLATURE, STATED:  "IT APPEARS, THEREFORE, AND THE PETITIONERS HAVE
CONCEDED, THAT THE LOWER HOUSE HAS BEEN LEGALLY REAPPORTIONED ACCORDING
TO POPULATION."  AND THE MARYLAND COURT OF APPEALS, IN ITS OPINION
UPHOLDING THE CIRCUIT COURT'S DECISION THAT THE SENATORIAL
APPORTIONMENT WAS CONSTITUTIONALLY VALID, POINTED OUT THAT THE INSTANT
APPEAL WAS FROM THE LOWER COURT'S DECISION ON REMAND OF THE PREVIOUSLY
UNDECIDED QUESTION AS TO THE VALIDITY OF THE SENATORIAL APPORTIONMENT,
AND STATED: "NO QUESTION IS PRESENTED AS TO THE VALIDITY OF THE 'STOP
GAP' LEGISLATION OR THE REAPPORTIONMENT OF THE HOUSE OF DELEGATES." 
(FN16)  QUESTIONING THE VALIDITY OF THE MAJORITY'S ASSUMPTION IN THIS
REGARD, THE DISSENTERS STATED: 

"THE MAJORITY OF THIS COURT IN THE PRESENT CASE SEEMS TO ACCEPT
TACITLY, IF NOT EXPRESSLY, THE VIEW THAT IF ONE HOUSE OF THE MARYLAND
GENERAL ASSEMBLY (THE SENATE) MAY BE APPORTIONED ON A BASIS WHICH
IGNORES DISPARITIES OF POPULATION, THE OTHER HOUSE (THE HOUSE OF
DELEGATES) MUST BE APPORTIONED WITH DUE REGARD TO POPULATION, AND
ASSUMES THAT THE HOUSE OF DELEGATES NOW IS SO APPORTIONED.  IT IS TRUE
THAT THE APPORTIONMENT OF THE HOUSE IS NOT UNDER ATTACK ON THIS APPEAL
AND NO QUESTION WITH REGARD THERETO IS NOW BEFORE US.  IT IS ALSO TRUE,
HOWEVER, THAT EVEN AS REAPPORTIONED BY THE MAY 1962 SPECIAL SESSION OF
THE GENERAL ASSEMBLY, CONSIDERABLE DISPARITIES STILL EXIST IN A NUMBER
OF INSTANCES, THOUGH PREVIOUS DISPARITIES HAVE BEEN MATERIALLY REDUCED
... .  THERE IS NO SUCH CLOSE RELATIONSHIP BETWEEN POPULATION AND
REPRESENTATION AS IN THE CASE OF THE MICHIGAN HOUSE  ...  .  SURELY,
THE PRESENT MARYLAND APPORTIONMENT IS NOT SO CLOSELY RELATED TO
POPULATION AS IS THAT OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS
OF THE UNITED STATES.  IN THAT RESPECT THE FEDERAL ANALOGY IS FAR FROM
PERFECT."  (FN17) 

APPELLANTS HAVE CONTINUALLY ASSERTED THAT NOT ONLY IS THE
CONSTITUTIONAL VALIDITY OF THE APPORTIONMENT OF THE MARYLAND SENATE AT
ISSUE IN THIS APPEAL, BUT THAT ALSO PRESENTED FOR DECISION IS THE
SUFFICIENCY, UNDER THE FOURTEENTH AMENDMENT TO THE FEDERAL
CONSTITUTION, OF "THE COMBINED TOTAL REPRESENTATION PROVIDED FOR IN
BOTH HOUSES OF THE MARYLAND GENERAL ASSEMBLY."  APPELLEES, ON THE OTHER
HAND, HAVE REPEATEDLY CONTENDED THAT THE SOLE QUESTION PRESENTED IN
THIS APPEAL IS WHETHER ONE HOUSE OF A BICAMERAL STATE LEGISLATURE,
I.E., THE MARYLAND SENATE, CAN BE APPORTIONED ON A BASIS OTHER THAN
POPULATION, WHERE THE OTHER HOUSE IS PRESUMABLY APPORTIONED ON A STRICT
POPULATION BASIS.   APPELLEES HAVE ARGUED THAT, SINCE THE COURTS BELOW
ASSUMED AND APPELLANTS ALLEGEDLY CONCEDED THAT THE MARYLAND HOUSE OF
DELEGATES, AS REAPPORTIONED IN 1962, IS APPORTIONED ON A POPULATION
BASIS, AND SINCE THE DECISIONS OF THE STATE COURTS BELOW HERE APPEALED
FROM CONSIDERED ONLY THE VALIDITY OF THE APPORTIONMENT OF THE MARYLAND
SENATE, THIS COURT IS PRECLUDED FROM CONSIDERING THE VALIDITY OF THE
APPORTIONMENT OF THE MARYLAND HOUSE AND IS REQUIRED TO ASSUME THAT THAT
BODY IS NOW APPORTIONED ON A POPULATION BASIS. 

REGARDLESS OF POSSIBLE CONCESSIONS MADE BY THE PARTIES AND THE SCOPE
OF THE CONSIDERATION OF THE COURTS BELOW, IN REVIEWING A STATE
LEGISLATIVE APPORTIONMENT CASE THIS COURT MUST OF NECESSITY CONSIDER
THE CHALLENGED SCHEME AS A WHOLE IN DETERMINING WHETHER THE PARTICULAR
STATE'S APPORTIONMENT PLAN, IN ITS ENTIRETY, MEETS FEDERAL
CONSTITUTIONAL REQUISITES.  IT IS SIMPLY IMPOSSIBLE TO DECIDE UPON THE
VALIDITY OF THE APPORTIONMENT OF ONE HOUSE OF A BICAMERAL LEGISLATURE
IN THE ABSTRACT, WITHOUT ALSO EVALUATING THE ACTUAL SCHEME OF
REPRESENTATION EMPLOYED WITH RESPECT TO THE OTHER HOUSE.  RATHER, THE
PROPER, AND INDEED INDISPENSABLE, SUBJECT FOR JUDICIAL FOCUS IN A
LEGISLATIVE APPORTIONMENT CONTROVERSY IS THE OVERALL REPRESENTATION
ACCORDED TO THE STATE'S VOTERS, IN BOTH HOUSES OF A BICAMERAL STATE
LEGISLATURE.  WE THEREFORE REJECT APPELLEES' CONTENTION THAT THE COURT
IS PRECLUDED FROM CONSIDERING THE VALIDITY OF THE APPORTIONMENT OF THE
MARYLAND HOUSE OF DELEGATES.  WE CANNOT BE COMPELLED TO ASSUME THAT THE
MARYLAND HOUSE IS PRESENTLY APPORTIONED ON A POPULATION BASIS, WHEN
THAT IS IN FACT PLAINLY NOT SO.  FURTHERMORE, WHETHER OR NOT THE HOUSE
IS APPORTIONED ON A POPULATION BASIS, THE SCHEME OF LEGISLATIVE
REPRESENTATION IN MARYLAND CANNOT BE SUSTAINED UNDER THE EQUAL
PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION, BECAUSE OF THE GROSS
DISPARITIES FROM POPULATION-BASED REPRESENTATION IN THE APPORTIONMENT
OF SEATS IN THE MARYLAND SENATE. 

                                             IV. 

IN REYNOLDS V. SIMS, ANTE, P. 533, DECIDED ALSO THIS DATE, WE HELD
THAT SEATS IN BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE ARE
REQUIRED, UNDER THE EQUAL PROTECTION CLAUSE, TO BE APPORTIONED
SUBSTANTIALLY ON A POPULATION BASIS.  NEITHER HOUSE OF THE MARYLAND
LEGISLATURE, EVEN AFTER THE 1962 LEGISLATION REAPPORTIONING THE HOUSE
OF DELEGATES, IS APPORTIONED SUFFICIENTLY ON A POPULATION BASIS TO BE
CONSTITUTIONALLY SUSTAINABLE.  THUS, WE CONCLUDE THAT THE MARYLAND
COURT OF APPEALS ERRED IN HOLDING THE MARYLAND LEGISLATIVE
APPORTIONMENT VALID, AND THAT THE DECISION BELOW MUST BE REVERSED. 
WE APPLAUD THE WILLINGNESS OF STATE COURTS TO ASSUME JURISDICTION AND
RENDER DECISION IN CASES INVOLVING CHALLENGES TO STATE LEGISLATIVE
APPORTIONMENT SCHEMES.  (FN18)  HOWEVER, IN DETERMINING THE VALIDITY OF
A STATE'S APPORTIONMENT PLAN, THE SAME FEDERAL CONSTITUTIONAL STANDARDS
ARE APPLICABLE WHETHER THE MATTER IS LITIGATED IN A FEDERAL OR A STATE
COURT.  MARYLAND'S PLAN IS PLAINLY INSUFFICIENT UNDER THE REQUIREMENTS
OF THE EQUAL PROTECTION CLAUSE AS SPELLED OUT IN OUR OPINION IN
REYNOLDS.  (FN19)    FOR THE REASONS STATED IN REYNOLDS, (FN20)
APPELLEES' RELIANCE ON THE SO-CALLED FEDERAL ANALOGY AS A SUSTAINING
PRINCIPLE FOR THE MARYLAND APPORTIONMENT SCHEME, DESPITE SIGNIFICANT
DEVIATIONS FROM POPULATION-BASED REPRESENTATION IN BOTH HOUSES OF THE
GENERAL ASSEMBLY, IS CLEARLY MISPLACED.  (FN21)  AND CONSIDERATIONS OF
HISTORY AND TRADITION, RELIED UPON BY APPELLEES, DO NOT, AND COULD NOT,
PROVIDE A SUFFICIENT JUSTIFICATION FOR THE SUBSTANTIAL DEVIATIONS FROM
POPULATION-BASED REPRESENTATION IN BOTH HOUSES OF THE MARYLAND
LEGISLATURE. 

IN VIEW OF THE CIRCUMSTANCES OF THIS CASE, WE FEEL IT INAPPROPRIATE
TO DISCUSS REMEDIAL QUESTIONS AT THE PRESENT TIME.  (FN22)  SINCE ALL
MEMBERS OF BOTH HOUSES OF THE MARYLAND GENERAL ASSEMBLY WERE ELECTED IN
1962, AND SINCE ALL MARYLAND LEGISLATORS ARE ELECTED TO SERVE FOUR-YEAR
TERMS, THE NEXT ELECTION OF LEGISLATORS IN MARYLAND WILL NOT BE
CONDUCTED UNTIL 1966.  THUS, SUFFICIENT TIME EXISTS FOR THE MARYLAND
LEGISLATURE TO ENACT LEGISLATION REAPPORTIONING SEATS IN THE GENERAL
ASSEMBLY PRIOR TO THE 1966 PRIMARY AND GENERAL ELECTIONS.  WITH THE
MARYLAND CONSTITUTIONAL PROVISIONS RELATING TO LEGISLATIVE
APPORTIONMENT HEREBY HELD UNCONSTITUTIONAL, THE MARYLAND LEGISLATURE
PRESUMABLY HAS THE INHERENT POWER TO ENACT AT LEAST TEMPORARY
REAPPORTIONMENT LEGISLATION PENDING ADOPTION OF STATE CONSTITUTIONAL
PROVISIONS RELATING TO LEGISLATIVE APPORTIONMENT WHICH COMPORT WITH
FEDERAL CONSTITUTIONAL REQUIREMENTS.  (FN23) 

SINCE PRIMARY RESPONSIBILITY FOR LEGISLATIVE APPORTIONMENT RESTS WITH
THE LEGISLATURE ITSELF, AND SINCE ADEQUATE TIME EXISTS IN WHICH THE
MARYLAND GENERAL ASSEMBLY CAN ACT, THE MARYLAND COURTS NEED FEEL
OBLIGED TO TAKE FURTHER AFFIRMATIVE ACTION ONLY IF THE LEGISLATURE
FAILS TO ENACT A CONSTITUTIONALLY VALID STATE LEGISLATIVE APPORTIONMENT
SCHEME IN A TIMELY FASHION AFTER BEING AFFORDED A FURTHER OPPORTUNITY
BY THE COURTS TO DO SO.  HOWEVER, UNDER NO CIRCUMSTANCES SHOULD THE
1966 ELECTION OF MEMBERS OF THE MARYLAND LEGISLATURE BE PERMITTED TO BE
CONDUCTED PURSUANT TO THE EXISTING OR ANY OTHER UNCONSTITUTIONAL PLAN. 
WE THEREFORE REVERSE THE JUDGMENT OF THE MARYLAND COURT OF APPEALS, AND
REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THE VIEWS STATED HERE AND IN OUR OPINION IN REYNOLDS V. SIMS.  IT
IS SO ORDERED. 

FN1  228 MD., AT 419, 180 A.2D, AT 659. 

FN2  ID., AT 428, 180 A.2D, AT 664. 

FN3  ID., AT 433-434, 180 A.2D, AT 667-668. 

FN4  MD. ANN. CODE (1962 SUPP.), ART. 40, SEC. 42. 

FN5  INCLUDED AS APPENDIX B TO THE DISSENTING OPINION OF THE MARYLAND
COURT OF APPEALS IS A CHART COMPARING THE SENATORIAL REPRESENTATION OF
THE CITY OF BALTIMORE AND THE FOUR MOST POPULOUS COUNTIES WITH THAT OF
THE OTHER COUNTIES IN THE STATE.  229 MD., AT 430, 184 A.2D, AT 730. 

FN6  ARTICLE III, SEC 4, OF THE 1867 MARYLAND CONSTITUTION PROVIDED
FOR A MINIMUM OF TWO DELEGATES PER COUNTY, WITH INCREASES PROPORTIONAL
TO POPULATION UP TO A TOTAL OF SIX WHEN A COUNTY'S POPULATION REACHED
55,000, BUT MADE NO PROVISION FOR ADDITIONAL DELEGATES AFTER A COUNTY'S
POPULATION REACHED AND EXCEEDED 55,000.  IN 1950, ART. III, SEC. 5, WAS
ADOPTED AS A CONSTITUTIONAL AMENDMENT FREEZING THE REPRESENTATION IN
THE HOUSE OF DELEGATES ON THE BASIS OF THE ALLOCATION OF HOUSE SEATS
UNDER THE 1940 FEDERAL CENSUS.  THE PURPOSE OF THIS AMENDMENT WAS TO
PREVENT THE SMALLER COUNTIES FROM CONTINUING TO RECEIVE INCREASED HOUSE
REPRESENTATION AT THE EXPENSE OF THE LARGER POLITICAL SUBDIVISIONS
WHICH, UNDER THE 1867 FORMULA, WERE NOT ENTITLED TO ANY MORE THAN SIX
DELEGATES AFTER THEIR POPULATION HAD REACHED 55,000, REGARDLESS OF HOW
MUCH IT MIGHT INCREASE THEREAFTER.  ADDITIONALLY, ART. III, SEC. 4, OF
THE MARYLAND CONSTITUTION, AS AMENDED, PROVIDES FOR ALTERING THE
BOUNDARIES OF THE LEGISLATIVE DISTRICTS OF THE CITY OF BALTIMORE TO
PROVIDE FOR APPROXIMATELY EQUAL POPULATION AMONG THE SIX DISTRICTS. 

FN7  ACCORDING TO THE PROVISIONS OF ART. III, SECS. 2, 6, AND 7, OF
THE MARYLAND CONSTITUTION. 

FN8  APPENDIX A TO THE DISSENTING OPINION OF THE MARYLAND COURT OF
APPEALS CONTAINS A CHART SHOWING THE POPULATIONS, ACCORDING TO 1960
CENSUS FIGURES, AND REPRESENTATION OF MARYLAND'S 23 COUNTIES AND THE
CITY OF BALTIMORE IN THE TWO HOUSES OF THE MARYLAND GENERAL ASSEMBLY,
INCLUDING FIGURES RELATING TO THE APPORTIONMENT OF SEATS IN THE HOUSE
OF DELEGATES BOTH BEFORE AND AFTER THE 1962 REAPPORTIONMENT
LEGISLATION.  ALSO INCLUDED IN THIS CHART ARE FIGURES SHOWING THE
NUMBER OF PERSONS REPRESENTED BY EACH DELEGATE, AND COMPUTATIONS OF THE
RELATIVE VALUES OF VOTES FOR DELEGATES AND SENATORS IN EACH OF THE
STATE'S POLITICAL SUBDIVISIONS.  229 MD., AT 429, 184 A.2D, AT 728
729. 

FN9  ARTICLE XVI, SECS. 2-5, OF THE MARYLAND CONSTITUTION PROVIDES A
PROCEDURE FOR THE CONDUCTING OF A REFERENDUM VOTE BY THE PEOPLE ON
CERTAIN TYPES OF LEGISLATIVE ENACTMENTS, HOWEVER, UPON THE FILING OF A
PETITION SIGNED BY AT LEAST 3% OF THE STATE'S QUALIFIED VOTERS. 

FOR A DISCUSSION OF THE LACK OF FEDERAL CONSTITUTIONAL SIGNIFICANCE
OF THE PRESENCE OR ABSENCE OF AN AVAILABLE POLITICAL REMEDY, SEE LUCAS
V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, POST, PP. 736-737,
DECIDED ALSO THIS DATE. 

FN10  MD. CONST., ART. XIV, SEC. 2. 

FN11  DESPITE THE CLEAR MANDATE OF ART. XIV, SEC. 2, OF THE STATE
CONSTITUTION, WHICH STATES THAT "IF A MAJORITY OF VOTERS AT SUCH
ELECTION OR ELECTIONS SHALL VOTE FOR A CONVENTION, THE GENERAL
ASSEMBLY, AT ITS NEXT SESSION, SHALL PROVIDE BY LAW FOR THE ASSEMBLING
OF SUCH CONVENTION, AND FOR THE ELECTION OF DELEGATES THERETO." 

COMPARE THE SITUATION EXISTING IN COLORADO, WITH RESPECT TO THE
AVAILABILITY OF A POLITICAL REMEDY, AS DISCUSSED IN OUR OPINION IN
LUCAS, POST, PP. 732-733. 

FN12  PURSUANT TO ART. XIV, SEC. 2, OF THE MARYLAND CONSTITUTION,
WHICH PROVIDES:  "EACH COUNTY, AND LEGISLATIVE DISTRICT OF THE CITY OF
BALTIMORE, SHALL HAVE IN SUCH CONVENTION A NUMBER OF DELEGATES EQUAL TO
ITS REPRESENTATION IN BOTH HOUSES AT THE TIME AT WHICH THE CONVENTION
IS CALLED." 

FN13  228 MD., AT 432-433, 180 A.2D, AT 667. 

FN14  IN FACT, THERE HAS BEEN NO SUBSTANTIAL CHANGE IN THE SCHEME OF
LEGISLATIVE REPRESENTATION IN MARYLAND SINCE 1837, WHEN THE SYSTEM OF
INDIRECT ELECTION OF SENATORS WAS ABOLISHED.  IN 1864 THE CITY OF
BALTIMORE WAS GIVEN ADDITIONAL REPRESENTATION IN THE FORM OF THREE
LEGISLATIVE DISTRICTS, WITH ONE SENATOR FOR EACH OF THE THREE
DISTRICTS.  A CONSTITUTIONAL CONVENTION IN 1867, WHICH ADOPTED THE
EXISTING MARYLAND CONSTITUTION, CONFIRMED THE INCREASED REPRESENTATION
ACCORDED THE CITY OF BALTIMORE, BUT OTHERWISE BASED THE LEGISLATIVE
APPORTIONMENT PROVISIONS WHICH IT ADOPTED ON THE 1837 SCHEME. 

FN15  FOR A DISCUSSION OF VARIOUS ASPECTS OF THE MARYLAND LEGISLATIVE
APPORTIONMENT SITUATION, INCLUDING THE INSTANT LITIGATION, SEE NOTE,
SENATE REAPPORTIONMENT - THE MARYLAND EXPERIENCE, 31 GEO. WASH. L. REV.
812 (1963). 

FN16  229 MD., AT 410, 184 A.2D, AT 716. 

FN17  ID., AT 421-422, 184 A.2D, AT 723-724. 

FN18  A COMMENDABLE EXAMPLE OF AN EXERCISE OF JUDICIAL RESPONSIBILITY
BY A STATE COURT IN A CASE INVOLVING STATE LEGISLATIVE APPORTIONMENT IS
PROVIDED BY THE ACTION OF THE KANSAS SUPREME COURT IN HARRIS V.
SHANAHAN, 192 KAN. 183, 387 P.2D 771 (1963).  IN THAT CASE THE KANSAS
SUPREME COURT HELD THAT THE STATUTORY PROVISIONS APPORTIONING SEATS IN
BOTH HOUSES OF THE KANSAS LEGISLATURE WERE CONSTITUTIONALLY INVALID,
BUT AFFORDED THE LEGISLATURE A FURTHER OPPORTUNITY TO ENACT A
CONSTITUTIONALLY VALID PLAN PRIOR TO THE 1964 PRIMARY AND GENERAL
ELECTIONS.  OF COURSE, THIS DECISION BY THE KANSAS SUPREME COURT IS NOT
PRESENTLY BEFORE US, AND WE INDICATE NO VIEW AS TO THE MERITS IN THAT
CASE. 

FN19  THE PATTERN OF PROLONGED LEGISLATIVE INACTION WITH RESPECT TO
LEGISLATIVE APPORTIONMENT MATTERS AND THE EXISTENCE OF A RURAL STRANGLE
HOLD ON THE LEGISLATURE IN MARYLAND CLOSELY PARALLELS THE SITUATION
EXISTING IN ALABAMA, ALTHOUGH MARYLAND, UNLIKE ALABAMA, HAS NO STATE
CONSTITUTIONAL PROVISION REQUIRING DECENNIAL LEGISLATIVE
REAPPORTIONMENT. 

FN20  SEE REYNOLDS V. SIMS, ANTE, PP. 571-576. 

FN21  ADDITIONALLY, THE MARYLAND LEGISLATIVE APPORTIONMENT SCHEME
HERE ATTACKED FAILS TO RESEMBLE THE PLAN OF REPRESENTATION IN THE
FEDERAL CONGRESS IN AT LEAST TWO IMPORTANT RESPECTS: THE MARYLAND
HOUSE, EVEN AS REAPPORTIONED IN 1962, IS CLEARLY NOT APPORTIONED ON A
POPULATION BASIS, AND POLITICAL SUBDIVISIONS ARE NOT ACCORDED THE SAME
NUMBER OF SENATORIAL SEATS, SINCE, ALTHOUGH EACH OF MARYLAND'S 23
COUNTIES IS GIVEN ONLY ONE SENATE SEAT, SIX SENATORS ARE ALLOTTED TO
THE CITY OF BALTIMORE. 

FN22  SEE REYNOLDS V. SIMS, ANTE, P. 585. 

FN23  SEE 228 MD., AT 438-440, 180 A.2D, AT 670-671, WHERE THE
MARYLAND COURT OF APPEALS STATED THAT, IF THE MARYLAND CONSTITUTIONAL
PROVISIONS RELATING TO LEGISLATIVE APPORTIONMENT WERE FOUND INVALID BY
THE LOWER COURT, THE MARYLAND LEGISLATURE WOULD HAVE THE POWER TO ENACT
REAPPORTIONMENT LEGISLATION, "BECAUSE THE POWERS OF THE GENERAL
ASSEMBLY OF MARYLAND ARE PLENARY, EXCEPT AS LIMITED BY CONSTITUTIONAL
PROVISIONS."  SEE ALSO THE REFERENCE TO THIS MATTER EARLIER IN THIS
OPINION, ANTE, AT 661. 

MR. JUSTICE CLARK CONCURS IN THE REVERSAL FOR THE REASONS STATED IN
HIS CONCURRING OPINION IN REYNOLDS V. SIMS, ANTE, P. 587, DECIDED THIS
DATE. 

FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 589. 

MR. JUSTICE STEWART. 

IN THIS CASE THERE IS NO FINDING BY THIS COURT OR BY THE MARYLAND
COURT OF APPEALS THAT MARYLAND'S APPORTIONMENT PLAN REFLECTS "NO
POLICY, BUT SIMPLY ARBITRARY AND CAPRICIOUS ACTION OR INACTION."  NOR
DO I THINK SUCH A FINDING ON THE RECORD BEFORE US WOULD BE WARRANTED. 
CONSEQUENTLY, ON THE BASIS OF THE CONSTITUTIONAL VIEWS EXPRESSED IN MY
DISSENTING OPINION IN LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF
COLORADO, POST, P. 744.  I WOULD AFFIRM THE JUDGMENT OF THE MARYLAND
COURT OF APPEALS UNLESS THE MARYLAND APPORTIONMENT "COULD BE SHOWN
SYSTEMATICALLY TO PREVENT ULTIMATE EFFECTIVE MAJORITY RULE."  THE
MARYLAND COURT DID NOT ADDRESS ITSELF TO THIS QUESTION.  ACCORDINGLY, I
WOULD VACATE THE JUDGMENT AND REMAND THIS CASE TO THE STATE COURT FOR
FULL CONSIDERATION OF THIS ISSUE. 
..END :








DAVIS, SECRETARY, STATE BOARD OF ELECTIONS V. MANN 377 U.S. 678 


NO. 69.  ARGUED NOVEMBER 14, 18, 1963.  - DECIDED JUNE 15, 1964.  - 213
F. SUPP. 577, AFFIRMED AND REMANDED. 


COMPLAINANTS, CERTAIN VIRGINIA VOTERS, BROUGHT THIS ACTION AGAINST
APPELLANTS, VARIOUS OFFICIALS HAVING STATE ELECTION DUTIES, CHALLENGING
THE STATUTORY PROVISIONS APPORTIONING SEATS IN THE VIRGINIA LEGISLATURE
AS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.  WHILE THE VIRGINIA
CONSTITUTION PROVIDES FOR DECENNIAL REAPPORTIONMENT THE ESTABLISHMENT
OF DISTRICTS RESTS IN THE DISCRETION OF THE LEGISLATURE, WHICH HAS BEEN
GUIDED CHIEFLY BY POPULATION BUT WHICH HAS ALSO CONSIDERED FACTORS SUCH
AS COMPACTNESS AND CONTIGUITY OF TERRITORY, GEOGRAPHIC FEATURES, AND
COMMUNITY OF INTERESTS.  UNDER THE EXISTING APPORTIONMENT, THE STATE IS
DIVIDED INTO 36 SENATORIAL DISTRICTS, WITH 40 SENATORS, AND 70 HOUSE
DISTRICTS WITH 100 DELEGATES.  THE MAXIMUM POPULATION-VARIANCE RATIOS
BETWEEN THE MOST POPULOUS AND LEAST POPULOUS SENATORIAL AND HOUSE
DISTRICTS ARE, RESPECTIVELY, 2.65-TO-1 AND 4.36-TO-1; AND UNDER THE
1962 APPORTIONMENT ABOUT 41.1% OF THE STATE'S TOTAL POPULATION RESIDE
IN DISTRICTS ELECTING A MAJORITY OF THE SENATE, AND ABOUT 40.5% IN
DISTRICTS ELECTING A MAJORITY OF THE HOUSE.  NO ADEQUATE POLITICAL
REMEDY FOR LEGISLATIVE REAPPORTIONMENT EXISTS IN VIRGINIA AND NO
INITIATIVE PROCEDURE IS PROVIDED FOR.  APPELLANTS BEFORE THE THREE
JUDGE COURT WHICH WAS CONVENED TO DECIDE THE CASE SHOWED THE NUMBER OF
MILITARY OR MILITARY-RELATED PERSONNEL IN THE AREAS WHERE COMPLAINANTS
RESIDED, DISPARITIES FROM POPULATION-BASED REPRESENTATION AMONG THE
VARIOUS STATES IN THE FEDERAL ELECTORAL COLLEGE, AND RESULTS OF A
COMPARATIVE STUDY SHOWING VIRGINIA AS EIGHTH AMONG THE STATES IN
POPULATION-BASED LEGISLATIVE REPRESENTATIVENESS.  THE DISTRICT COURT
ENTERED AN INTERLOCUTORY ORDER HOLDING VIRGINIA'S LEGISLATIVE
APPORTIONMENT UNCONSTITUTIONAL AND REFUSED TO ABSTAIN PENDING THE
OBTAINING OF THE STATE COURTS' VIEWS ON THE VALIDITY OF THE
APPORTIONMENT.  THE COURT REFUSED TO DEFER DECIDING THE CASE UNTIL
AFTER THE JANUARY 1964 REGULAR SESSION OF THE LEGISLATURE AND RETAINED
JURISDICTION FOR THE ENTRY OF NECESSARY ORDERS.  HELD: 

1.  NEITHER OF THE HOUSES OF THE VIRGINIA GENERAL ASSEMBLY IS
APPORTIONED SUFFICIENTLY ON A POPULATION BASIS TO BE CONSTITUTIONALLY
SUSTAINABLE.  P. 690. 

2.  WHERE A FEDERAL COURT'S JURISDICTION IS PROPERLY INVOKED AND THE
RELEVANT STATE CONSTITUTIONAL AND STATUTORY PROVISIONS ARE PLAIN AND
UNAMBIGUOUS, ABSTENTION IS NOT NECESSARY.  P. 690. 

3.  THE EQUAL PROTECTION CLAUSE APPLIES TO FAILURE TO MEET FEDERAL
CONSTITUTIONAL REQUIREMENTS WHETHER THE LEGISLATURE PERIODICALLY
REAPPORTIONS OR FAILS TO ACT.  P. 691. 

4.  THE FACT THAT LARGE NUMBERS OF MILITARY OR MILITARY-RELATED
PERSONNEL RESIDE IN THE SAME AREAS AS APPELLEES CANNOT JUSTIFY
UNDERREPRESENTATION OF THOSE AREAS BECAUSE THE NATURE OF THEIR
EMPLOYMENT ALONE PROVIDES NO PROPER BASIS FOR DISCRIMINATION; THERE WAS
NO SHOWING THAT THE LEGISLATURE TOOK THIS FACTOR INTO ACCOUNT IN MAKING
THE APPORTIONMENT; AND EVEN IF IT HAD THE MAXIMUM POPULATION-VARIANCE
RATIOS WOULD HAVE REMAINED IMPERMISSIBLE.  PP. 691-692. 

5.  THE APPORTIONMENT WAS NOT SUSTAINABLE, EITHER FACTUALLY OR
LEGALLY, AS INVOLVING AN ATTEMPT TO BALANCE URBAN AND RURAL POWER IN
THE LEGISLATURE.  P. 692. 

6.  ANALOGY TO DEVIATIONS FROM POPULATION IN THE FEDERAL ELECTORAL
COLLEGE PROVIDES NO CONSTITUTIONAL BASIS FOR SUSTAINING A STATE
APPORTIONMENT SCHEME UNDER THE EQUAL PROTECTION CLAUSE.  P. 692. 

7.  IT WOULD BE INAPPROPRIATE FOR THIS COURT TO CONSIDER THE REMEDIES
OF MALAPPORTIONMENT OF THE LEGISLATURE SINCE THE NEXT ELECTION OF
VIRGINIA LEGISLATORS DOES NOT OCCUR UNTIL 1965; THE LEGISLATURE HAS
AMPLE TIME TO EFFECT A VALID REAPPORTIONMENT; AND THE DISTRICT COURT
HAS RETAINED JURISDICTION TO GRANT RELIEF UNDER EQUITABLE PRINCIPLES IF
NECESSARY TO ENSURE THAT NO FURTHER ELECTIONS ARE HELD UNDER AN
UNCONSTITUTIONAL SCHEME.  PP. 692-693. 

DAVIS, SECRETARY, STATE BOARD OF ELECTIONS, ET AL. V. MANN ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PRESENTED FOR DECISION IN THIS CASE IS THE VALIDITY, UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE FEDERAL
CONSTITUTION, OF THE APPORTIONMENT OF SEATS IN THE LEGISLATURE OF THE
COMMONWEALTH OF VIRGINIA. 

                                              I. 

PLAINTIFFS BELOW, RESIDENTS, TAXPAYERS AND QUALIFIED VOTERS OF
ARLINGTON AND FAIRFAX COUNTIES, FILED A COMPLAINT ON APRIL 9, 1962, IN
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA,
IN THEIR OWN BEHALF AND ON BEHALF OF ALL VOTERS IN VIRGINIA SIMILARLY
SITUATED, CHALLENGING THE APPORTIONMENT OF THE VIRGINIA GENERAL
ASSEMBLY.  DEFENDANTS, SUED IN THEIR REPRESENTATIVE CAPACITIES, WERE
VARIOUS OFFICIALS CHARGED WITH DUTIES IN CONNECTION WITH STATE
ELECTIONS.  PLAINTIFFS CLAIMED RIGHTS UNDER PROVISIONS OF THE CIVIL
RIGHTS ACT, 42 U.S.C.  SECS. 1983, 1988, AND ASSERTED JURISDICTION
UNDER 28 U.S.C. SEC. 1343(3). 

THE COMPLAINT ALLEGED THAT THE PRESENT STATUTORY PROVISIONS
APPORTIONING SEATS IN THE VIRGINIA LEGISLATURE, AS AMENDED IN 1962,
RESULT IN INVIDIOUS DISCRIMINATION AGAINST PLAINTIFFS AND "ALL OTHER
VOTERS OF THE STATE SENATORIAL AND HOUSE DISTRICTS" IN WHICH THEY
RESIDE, SINCE VOTERS IN ARLINGTON AND FAIRFAX COUNTIES ARE GIVEN
SUBSTANTIALLY LESS REPRESENTATION THAN VOTERS LIVING IN OTHER PARTS OF
THE STATE.  PLAINTIFFS ASSERTED THAT THE DISCRIMINATION WAS VIOLATIVE
OF THE FOURTEENTH AMENDMENT AS WELL AS THE VIRGINIA CONSTITUTION, AND
CONTENDED THAT THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE OF THE
FEDERAL CONSTITUTION, AND OF THE VIRGINIA CONSTITUTION, COULD BE MET
ONLY BY A REDISTRIBUTION OF LEGISLATIVE REPRESENTATION AMONG THE
COUNTIES AND INDEPENDENT CITIES OF THE STATE "SUBSTANTIALLY IN
PROPORTION TO THEIR RESPECTIVE POPULATIONS."  PLAINTIFFS ASSERTED THAT
THEY "POSSESS AN INHERENT RIGHT TO VOTE FOR MEMBERS OF THE GENERAL
ASSEMBLY  ...  AND TO CAST VOTES THAT ARE EQUALLY EFFECTIVE WITH THE
VOTES OF EVERY OTHER CITIZEN" OF VIRGINIA, AND THAT THIS RIGHT WAS
BEING DILUTED AND EFFECTIVELY DENIED BY THE DISCRIMINATORY
APPORTIONMENT OF SEATS IN BOTH HOUSES OF THE VIRGINIA LEGISLATURE UNDER
THE STATUTORY PROVISIONS ATTACKED AS BEING UNCONSTITUTIONAL. 
PLAINTIFFS CONTENDED THAT THE ALLEGED INEQUALITIES AND DISTORTIONS IN
THE ALLOCATION OF LEGISLATIVE SEATS PREVENTED THE VIRGINIA LEGISLATURE
FROM "BEING A BODY REPRESENTATIVE OF THE PEOPLE OF THE COMMONWEALTH,"
AND RESULTED IN A MINORITY OF THE PEOPLE OF VIRGINIA CONTROLLING THE
GENERAL ASSEMBLY. 

THE COMPLAINT REQUESTED THE CONVENING OF A THREE-JUDGE DISTRICT
COURT.  WITH RESPECT TO RELIEF, PLAINTIFFS SOUGHT A DECLARATORY
JUDGMENT THAT THE STATUTORY SCHEME OF LEGISLATIVE APPORTIONMENT IN
VIRGINIA, PRIOR AS WELL AS SUBSEQUENT TO THE 1962 AMENDMENTS,
CONTRAVENES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND
IS THUS UNCONSTITUTIONAL AND VOID.  PLAINTIFFS ALSO REQUESTED THE
ISSUANCE OF A PROHIBITORY INJUNCTION RESTRAINING DEFENDANTS FROM
PERFORMING THEIR OFFICIAL DUTIES RELATING TO THE ELECTION OF MEMBERS OF
THE GENERAL ASSEMBLY PURSUANT TO THE PRESENT STATUTORY PROVISIONS. 
PLAINTIFFS FURTHER SOUGHT A MANDATORY INJUNCTION REQUIRING DEFENDANTS
TO CONDUCT THE NEXT PRIMARY AND GENERAL ELECTIONS FOR LEGISLATORS ON AN
AT-LARGE BASIS THROUGHOUT THE STATE. 

A THREE-JUDGE DISTRICT COURT WAS PROMPTLY CONVENED.  RESIDENTS AND
VOTERS OF THE CITY OF NORFOLK WERE PERMITTED TO INTERVENE AS PLAINTIFFS
AGAINST THE ORIGINAL DEFENDANTS AND AGAINST CERTAIN ADDITIONAL
DEFENDANTS, ELECTION OFFICIALS IN NORFOLK.  ON JUNE 20, 1962, ALL OF
THE PLAINTIFFS OBTAINED LEAVE TO AMEND THE COMPLAINT BY ADDING AN
ADDITIONAL PRAYER FOR RELIEF WHICH REQUESTED THAT, UNLESS THE GENERAL
ASSEMBLY "PROMPTLY AND FAIRLY" REAPPORTIONED THE LEGISLATIVE DISTRICTS,
THE COURT SHOULD REAPPORTION THE DISTRICTS BY ITS OWN ORDER SO AS TO
ACCORD THE PARTIES AND OTHERS SIMILARLY SITUATED "FAIR AND
PROPORTIONATE" REPRESENTATION IN THE VIRGINIA LEGILSATURE. 

EVIDENCE PRESENTED TO THE DISTRICT COURT BY PLAINTIFFS INCLUDED BASIC
FIGURES SHOWING THE POPULATIONS OF THE VARIOUS DISTRICTS FROM WHICH
SENATORS AND DELEGATES ARE ELECTED AND THE NUMBER OF SEATS ASSIGNED TO
EACH.  FROM THAT DATA VARIOUS STATISTICAL COMPARISONS WERE DERIVED. 
SINCE THE 1962 REAPPORTIONMENT MEASURES WERE ENACTED ONLY TWO DAYS
BEFORE THE COMPLAINT WAS FILED AND MADE ONLY SMALL CHANGES IN THE
STATUTORY PROVISIONS RELATING TO LEGISLATIVE APPORTIONMENT, WHICH HAD
BEEN LAST AMENDED IN 1958, THE EVIDENCE SUBMITTED COVERED BOTH THE
PRESENT AND THE LAST PREVIOUS APPORTIONMENTS.  DEFENDANTS INTRODUCED
VARIOUS EXHIBITS SHOWING THE NUMBERS OF MILITARY AND MILITARY-RELATED
PERSONNEL IN THE CITY OF NORFOLK AND IN ARLINGTON AND FAIRFAX COUNTIES,
DISPARITIES FROM POPULATION-BASED REPRESENTATION AMONG THE VARIOUS
STATES IN THE FEDERAL ELECTORAL COLLEGE, AND RESULTS OF A COMPARATIVE
STUDY OF STATE LEGISLATIVE APPORTIONMENT WHICH SHOW VIRGINIA AS RANKING
EIGHTH AMONG THE STATES IN POPULATION-BASED LEGISLATIVE
REPRESENTATIVENESS, AS REAPPORTIONED IN 1962. 

ON NOVEMBER 28, 1962, THE DISTRICT COURT, WITH ONE JUDGE DISSENTING,
SUSTAINED PLAINTIFFS' CLAIM AND ENTERED AN INTERLOCUTORY ORDER HOLDING
THE APPORTIONMENT OF THE VIRGINIA LEGISLATURE VIOLATIVE OF THE FEDERAL
CONSTITUTION.  213 F. SUPP. 577.  THE COURT REFUSED TO DISMISS THE CASE
OR STAY ITS ACTION ON THE GROUND, ASSERTED BY DEFENDANTS, THAT
PLAINTIFFS SHOULD BE REQUIRED FIRST TO PROCURE THE VIEWS OF THE STATE
COURTS ON THE VALIDITY OF THE APPORTIONMENT SCHEME.  INSTEAD, IT HELD
THAT, SINCE NEITHER THE 1962 LEGISLATION NOR THE RELEVANT STATE
CONSTITUTIONAL PROVISIONS WERE AMBIGUOUS, NO QUESTION OF STATE LAW
NECESSITATING ABSTENTION BY THE FEDERAL DISTRICT COURT WAS PRESENTED. 
IN APPLYING THE EQUAL PROTECTION CLAUSE TO THE VIRGINIA APPORTIONMENT
SCHEME, THE COURT STATED THAT, ALTHOUGH POPULATION IS THE PREDOMINANT
CONSIDERATION, OTHER FACTORS MAY BE OF SOME RELEVANCE "IN ASSAYING THE
JUSTNESS OF THE APPORTIONMENT."  STATING THAT THE FEDERAL CONSTITUTION
REQUIRES A STATE LEGISLATIVE APPORTIONMENT TO "ACCORD THE CITIZENS OF
THE STATE SUBSTANTIALLY EQUAL REPRESENTATION," THE COURT HELD THAT THE
INEQUALITIES FOUND IN THE STATISTICAL INFORMATION RELATING TO THE
POPULATION OF THE STATE'S VARIOUS LEGISLATIVE DISTRICTS, IF
UNEXPLAINED, SUFFICIENTLY SHOWED AN "INVIDIOUS DISCRIMINATION" AGAINST
PLAINTIFFS AND THOSE SIMILARLY SITUATED.  THE COURT REJECTED ANY
POSSIBILITY OF DIFFERENT BASES OF REPRESENTATION BEING APPLICABLE IN
THE TWO HOUSES OF THE VIRGINIA LEGISLATURE, STATING THAT, IN VIRGINIA,
EACH HOUSE HAS "A DIRECT, INDEED THE SAME, RELATION TO THE PEOPLE," AND
THAT THE PRINCIPAL PRESENT-DAY JUSTIFICATION FOR BICAMERALISM IN STATE
LEGISLATURES IS TO INSURE AGAINST PRECIPITATE ACTION BY IMPOSING
GREATER DELIBERATION UPON PROPOSED LEGISLATION.  BECAUSE OF THE GROSS
INEQUALITIES IN REPRESENTATION AMONG VARIOUS DISTRICTS IN BOTH HOUSES
OF THE VIRGINIA LEGISLATURE, THE COURT PUT THE BURDEN OF EXPLANATION ON
DEFENDANTS, AND FOUND THAT THEY HAD FAILED TO MEET IT.  CONSEQUENTLY,
THE COURT CONCLUDED THAT THE DISCRIMINATION AGAINST ARLINGTON AND
FAIRFAX COUNTIES AND THE CITY OF NORFOLK WAS A GRAVE AND
"CONSTITUTIONALLY IMPERMISSIBLE" DEPRIVATION, VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

WITH RESPECT TO RELIEF, THE COURT STATED THAT, WHILE IT WOULD HAVE
PREFERRED THAT THE GENERAL ASSEMBLY ITSELF CORRECT THE
UNCONSTITUTIONALITY OF THE 1962 APPORTIONMENT LEGISLATION, IT WOULD NOT
DEFER DECIDING THE CASE UNTIL AFTER THE NEXT REGULAR SESSION OF THE
VIRGINIA LEGISLATURE IN JANUARY 1964, BECAUSE SENATORS ELECTED IN
NOVEMBER 1963 WOULD HOLD OFFICE UNTIL 1968 AND DELEGATES ELECTED IN
1963 WOULD SERVE UNTIL 1966.  DEFERRING ACTION WOULD THUS RESULT IN
UNREASONABLE DELAY IN CORRECTING THE INJUSTICES IN THE APPORTIONMENT OF
THE SENATE AND THE HOUSE OF DELEGATES, CONCLUDED THE COURT. 

THE DISTRICT COURT'S INTERLOCUTORY ORDER DECLARED THAT THE 1962
APPORTIONMENT VIOLATED THE EQUAL PROTECTION CLAUSE AND ACCORDINGLY WAS
VOID AND OF NO EFFECT.  IT ALSO RESTRAINED AND ENJOINED DEFENDANTS FROM
PROCEEDING WITH THE CONDUCTING OF ELECTIONS UNDER THE 1962 LEGISLATION,
BUT STAYED THE OPERATION OF THE INJUNCTION UNTIL JANUARY 31, 1963, SO
THAT EITHER THE GENERAL ASSEMBLY COULD ACT OR AN APPEAL COULD BE TAKEN
TO THIS COURT, PROVIDED THAT, IF NEITHER OF THESE STEPS WAS TAKEN,
PLAINTIFFS MIGHT APPLY TO THE DISTRICT COURT FOR FURTHER RELIEF. 
FINALLY, THE COURT BELOW RETAINED JURISDICTION OF THE CASE FOR THE
ENTRY OF SUCH ORDERS AS MIGHT BE REQUIRED. 

AN APPEAL TO THIS COURT WAS TIMELY NOTED BY DEFENDANTS.  ON
APPLICATION BY APPELLANTS, THE CHIEF JUSTICE, ON DECEMBER 15, 1962,
GRANTED A STAY OF THE DISTRICT COURT'S INJUNCTION PENDING FINAL
DISPOSITION OF THE CASE BY THIS COURT.  BECAUSE OF THIS STAY, THE
NOVEMBER 1963 ELECTION OF MEMBERS OF THE VIRGINIA LEGISLATURE WAS
CONDUCTED UNDER THE EXISTING STATUTORY PROVISIONS.  WE NOTED PROBABLE
JURISDICTION ON JUNE 10, 1963.  374 U.S. 803. 

                                             II. 

THE VIRGINIA CONSTITUTION PROVIDES FOR A SENATE OF NOT MORE THAN 40
NOR LESS THAN 33 MEMBERS, IN ART. IV, SEC. 41, AND FOR A HOUSE OF
DELEGATES OF NOT MORE THAN 100 NOR LESS THAN 90 SEATS, IN ART. IV, SEC.
42.  SENATORS ARE ELECTED QUADRENNIALLY AND DELEGATES BIENNIALLY.  AT
ALL RELEVANT TIMES, STATE STATUTES HAVE FIXED THE NUMBER OF SENATORS AT
40 AND THE NUMBER OF DELEGATES AT 100.  PURSUANT TO THE STATE
CONSTITUTIONAL REQUIREMENT OF LEGISLATIVE REAPPORTIONMENT AT LEAST
DECENIALLY, CONTAINED IN ART. IV, SEC. 43, THE GENERAL ASSEMBLY HAS
REAPPORTIONED SENATORIAL AND HOUSE SEATS IN 1932, 1942, AND 1952, AS
WELL AS IN 1962, AND IN 1958 THE APPORTIONMENT STATUTES WERE AMENDED. 
(FN1)  THE VIRGINIA CONSTITUTION CONTAINS NO EXPRESS STANDARDS,
HOWEVER, FOR THE APPORTIONMENT OF LEGISLATIVE REPRESENTATION, AND
LEAVES THE TASK OF ESTABLISHING DISTRICTS SOLELY UP TO THE DISCRETION
OF THE LEGISLATURE. 

WITH RESPECT TO POLITICAL SUBDIVISIONS, VIRGINIA HAS 98 COUNTIES AND
32 INDEPENDENT CITIES.  DESPITE THE ABSENCE OF ANY SPECIFIC PROVISIONS
IN THE STATE CONSTITUTION, POPULATION HAS GENERALLY BEEN TRADITIONALLY
REGARDED AS THE MOST IMPORTANT FACTOR FOR LEGISLATIVE CONSIDERATION IN
REAPPORTIONING AND REDISTRICTING.  BECAUSE CITIES AND COUNTIES HAVE
CONSISTENTLY NOT BEEN SPLIT OR DIVIDED FOR PURPOSES OF LEGISLATIVE
REPRESENTATION, MULTIMEMBER DISTRICTS HAVE BEEN UTILIZED FOR CITIES AND
COUNTIES WHOSE POPULATIONS ENTITLE THEM TO MORE THAN A SINGLE
REPRESENTATIVE, RESULTING IN THERE ALWAYS BEING LESS THAN 100 DELEGATE
DISTRICTS AND LESS THAN 40 SENATORIAL DISTRICTS.  AND, BECAUSE OF A
TRADITION OF RESPECTING THE INTEGRITY OF THE BOUNDARIES OF CITIES AND
COUNTIES IN DRAWING DISTRICT LINES, DISTRICTS HAVE BEEN CONSTRUCTED
ONLY OF COMBINATIONS OF COUNTIES AND CITIES AND NOT BY PIECES OF THEM. 
THIS HAS RESULTED IN THE PERIODIC UTILIZATION OF FLOTERIAL DISTRICTS
(FN2) WHERE CONTIGUOUS CITIES OR COUNTIES CANNOT BE COMBINED TO YIELD
POPULATION TOTALS REASONABLY CLOSE TO A POPULATION RATIO FIGURE
DETERMINED BY DIVIDING THE STATE'S TOTAL POPULATION BY THE NUMBER OF
SEATS IN THE PARTICULAR LEGISLATIVE BODY.  VARIOUS OTHER FACTORS, IN
ADDITION TO POPULATION, WHICH HAVE HISTORICALLY BEEN CONSIDERED BY
VIRGINIA LEGISLATURES IN ENACTING APPORTIONMENT STATUTES INCLUDE
COMPACTNESS AND CONTIGUITY OF TERRITORY IN FORMING DISTRICTS,
GEOGRAPHIC AND TOPOGRAPHIC FEATURES, AND COMMUNITY OF INTERESTS AMONG
PEOPLE IN VARIOUS DISTRICTS. 

THE APPORTIONMENT OF THE VIRGINIA SENATE, AND DIVIDES THE STATE INTO 36
SENATORIAL DISTRICTS FOR THE ALLOCATION OF THE 40 SEATS IN THAT BODY. 
WITH A TOTAL STATE POPULATION OF 3,966,949, ACCORDING TO THE 1960
CENSUS, AND 40 SENATE SEATS, THE IDEAL RATIO WOULD BE ONE SENATOR FOR
EACH 99,174 PERSONS.  UNDER THE 1962 STATUTE, HOWEVER, ARLINGTON COUNTY
IS GIVEN BUT ONE SENATOR FOR ITS 163,401 PERSONS, ONLY .61 OF THE
REPRESENTATION TO WHICH IT WOULD BE ENTITLED ON A STRICT POPULATION
BASIS.  THE CITY OF NORFOLK HAS ONLY .65 OF ITS IDEAL SHARE OF
SENATORIAL REPRESENTATION, WITH TWO SENATORS FOR A POPULATION OF
305,872.  AND FAIRFAX COUNTY (INCLUDING THE CITIES OF FAIRFAX AND FALLS
CHURCH), WITH TWO SENATORS FOR 285,194 PEOPLE, HAS BUT .70 OF ITS IDEAL
REPRESENTATION IN THE VIRGINIA SENATE.  IN COMPARISON, THE SMALLEST
SENATORIAL DISTRICT, WITH RESPECT TO POPULATION, HAS ONLY 61,730, AND
THE NEXT SMALLEST 63,703.  (FN3)  THUS, THE MAXIMUM POPULATION-VARIANCE
RATIO BETWEEN THE MOST POPULOUS AND LEAST POPULOUS SENATORIAL DISTRICTS
IS 2.65-TO-1.  UNDER THE 1962 SENATORIAL APPORTIONMENT, APPLYING 1960
POPULATION FIGURES, APPROXIMATELY 41.1% OF THE STATE'S TOTAL POPULATION
RESIDE IN DISTRICTS ELECTING A MAJORITY OF THE MEMBERS OF THAT BODY. 
(FN4)    APPORTIONMENT OF SEATS IN THE VIRGINIA HOUSE OF DELEGATES IS
PROVIDED FOR IN SEC. 24-12 OF THE VIRGINIA CODE, AS AMENDED IN 1962,
WHICH CREATES 70 HOUSE DISTRICTS AND DISTRIBUTES THE 100 HOUSE SEATS
AMONG THEM.  DIVIDING THE STATE'S TOTAL 1960 POPULATION BY 100 RESULTS
IN AN IDEAL RATIO OF ONE DELEGATE FOR EACH 39,669 PERSONS.  FAIRFAX
COUNTY, WITH A POPULATION OF 285,194, IS ALLOCATED ONLY THREE HOUSE
SEATS UNDER THE 1962 APPORTIONMENT PROVISIONS, HOWEVER, THUS BEING
GIVEN ONLY .42 OF ITS IDEAL REPRESENTATION.  WHILE THE AVERAGE
POPULATION PER DELEGATE IN FAIRFAX COUNTY IS 95,064, WYTHE COUNTY, WITH
ONLY 21,975 PERSONS, AND SHENANDOAH COUNTY, WITH A POPULATION OF ONLY
21,825, ARE EACH GIVEN ONE SEAT IN THE VIRGINIA HOUSE.  (FN5)  THE
MAXIMUM POPULATION-VARIANCE RATIO, BETWEEN THE MOST POPULOUS AND LEAST
POPULOUS HOUSE DISTRICTS, IS THUS 4.36-TO-1.  THE CITY OF NORFOLK, WITH
305,872 PEOPLE, IS GIVEN ONLY SIX HOUSE SEATS, AND ARLINGTON COUNTY,
WITH A POPULATION OF 163,401, IS ALLOCATED ONLY THREE.  UNDER THE 1962
REAPPORTIONMENT OF THE HOUSE OF DELEGATES, 40.5% OF THE STATE'S
POPULATION LIVE IN DISTRICTS ELECTING A MAJORITY OF THE HOUSE MEMBERS. 
TWENTY-SEVEN HOUSE DISTRICTS HAVE MORE THAN THREE TIMES THE
REPRESENTATION OF THE PEOPLE OF FAIRFAX COUNTY, 12 DISTRICTS HAVE TWICE
THE REPRESENTATION OF ARLINGTON COUNTY, AND SIX, TWICE THAT OF
NORFOLK. 

NO ADEQUATE POLITICAL REMEDY TO OBTAIN LEGISLATIVE REAPPORTIONMENT
APPEARS TO EXIST IN VIRGINIA.  (FN6)  NO INITIATIVE PROCEDURE IS
PROVIDED FOR UNDER VIRGINIA LAW.  AMENDMENT OF THE STATE CONSTITUTION
OR THE CALLING OF A CONSTITUTIONAL CONVENTION INITIALLY REQUIRES THE
VOTE OF A MAJORITY OF BOTH HOUSES OF THE VIRGINIA GENERAL ASSEMBLY. 
(FN7)  ONLY AFTER SUCH LEGISLATIVE APPROVAL IS OBTAINED IS SUCH A
MEASURE SUBMITTED TO THE PEOPLE FOR A REFERENDUM VOTE.  LEGISLATIVE
APPORTIONMENT QUESTIONS DO NOT APPEAR TO HAVE BEEN TRADITIONALLY
REGARDED AS NONJUSTICIABLE BY VIRGINIA STATE COURTS, HOWEVER, (FN8) AND
APPELLEES COULD POSSIBLY HAVE SOUGHT AND OBTAINED RELIEF IN A STATE
COURT AS WELL AS IN A FEDERAL DISTRICT COURT.  (FN9)

          III. 

IN REYNOLDS V. SIMS, ANTE, P. 533, DECIDED ALSO THIS DATE, WE HELD
THAT THE EQUAL PROTECTION CLAUSE REQUIRES THAT SEATS IN BOTH HOUSES OF
A BICAMERAL STATE LEGISLATURE MUST BE APPORTIONED SUBSTANTIALLY ON A
POPULATION BASIS.  NEITHER OF THE HOUSES OF THE VIRGINIA GENERAL
ASSEMBLY, UNDER THE 1962 STATUTORY PROVISIONS HERE ATTACKED, IS
APPORTIONED SUFFICIENTLY ON A POPULATION BASIS TO BE CONSTITUTIONALLY
SUSTAINABLE.  ACCORDINGLY, WE HOLD THAT THE DISTRICT COURT PROPERLY
FOUND THE VIRGINIA LEGISLATIVE APPORTIONMENT INVALID. 

APPELLANTS' CONTENTION THAT THE COURT BELOW SHOULD HAVE ABSTAINED SO
AS TO PERMIT A STATE COURT TO DECIDE THE QUESTIONS OF STATE LAW
INVOLVED IN THIS LITIGATION IS WITHOUT MERIT.  WHERE A FEDERAL COURT'S
JURISDICTION IS PROPERLY INVOKED, AND THE RELEVANT STATE CONSTITUTIONAL
AND STATUTORY PROVISIONS ARE PLAIN AND UNAMBIGUOUS, THERE IS NO
NECESSITY FOR THE FEDERAL COURT TO ABSTAIN PENDING DETERMINATION OF THE
STATE LAW QUESTIONS IN A STATE COURT.  MCNEESE V. BOARD OF EDUCATION,
373 U.S. 668.  THIS IS ESPECIALLY SO WHERE, AS HERE, NO STATE
PROCEEDING HAD BEEN INSTITUTED OR WAS PENDING WHEN THE DISTRICT COURT'S
JURISDICTION WAS INVOKED.  WE CONCLUDE THAT THE COURT BELOW DID NOT ERR
IN REFUSING TO DISMISS THE PROCEEDING OR STAY ITS ACTION PENDING
RECOURSE TO THE STATE COURTS. 

UNDOUBTEDLY, THE SITUATION EXISTING IN VIRGINIA, WITH RESPECT TO
LEGISLATIVE APPORTIONMENT, DIFFERS NOT INSIGNIFICANTLY FROM THAT IN
ALABAMA.  IN CONTRAST TO ALABAMA, IN VIRGINIA THE LEGISLATURE HAS
CONSISTENTLY REAPPORTIONED ITSELF DECENNIALLY AS REQUIRED BY THE STATE
CONSTITUTION.   NEVERTHELESS, STATE LEGISLATIVE MALAPPORTIONMENT,
WHETHER RESULTING FROM PROLONGED LEGISLATIVE INACTION OR FROM FAILURE
TO COMPLY SUFFICIENTLY WITH FEDERAL CONSTITUTIONAL REQUISITES, ALTHOUGH
REAPPORTIONMENT IS ACCOMPLISHED PERIODICALLY, FALLS EQUALLY WITHIN THE
PROSCRIPTION OF THE EQUAL PROTECTION CLAUSE. 

WE REJECT APPELLANTS' ARGUMENT THAT THE UNDERREPRESENTATION OF
ARLINGTON, FAIRFAX AND NORFOLK IS CONSTITUTIONALLY JUSTIFIABLE SINCE IT
ALLEGEDLY RESULTED IN PART FROM THE FACT THAT THOSE AREAS CONTAIN LARGE
NUMBERS OF MILITARY AND MILITARY-RELATED PERSONNEL.  DISCRIMINATION
AGAINST A CLASS OF INDIVIDUALS, MERELY BECAUSE OF THE NATURE OF THEIR
EMPLOYMENT, WITHOUT MORE BEING SHOWN, IS CONSTITUTIONALLY
IMPERMISSIBLE.  ADDITIONALLY, NO SHOWING WAS MADE THAT THE VIRGINIA
LEGISLATURE IN FACT TOOK SUCH A FACTOR INTO ACCOUNT IN ALLOCATING
LEGISLATIVE REPRESENTATION.  (FN10)  AND STATE POLICY, AS EVIDENCED BY
VIRGINIA'S ELECTION LAWS, ACTUALLY FAVORS AND FOSTERS VOTING BY
MILITARY AND MILITARY-RELATED PERSONNEL.  (FN11)  FURTHERMORE, EVEN IF
SUCH PERSONS WERE TO BE EXCLUDED IN DETERMINING THE POPULATIONS OF THE
VARIOUS LEGISLATIVE DISTRICTS, THE DISCRIMINATION AGAINST THE
DISFAVORED AREAS WOULD HARDLY BE SATISFACTORILY EXPLAINED, BECAUSE,
AFTER DEDUCTING MILITARY AND MILITARY-RELATED PERSONNEL, THE MAXIMUM
POPULATION-VARIANCE RATIOS WOULD STILL BE 2.22-TO-1 IN THE SENATE AND
3.53-TO-1 IN THE HOUSE. 

WE ALSO REJECT APPELLANTS' CLAIM THAT THE VIRGINIA APPORTIONMENT IS
SUSTAINABLE AS INVOLVING AN ATTEMPT TO BALANCE URBAN AND RURAL POWER IN
THE LEGISLATURE.  NOT ONLY DOES THIS EXPLANATION LACK LEGAL MERIT, BUT
IT ALSO FAILS TO CONFORM TO THE FACTS.  SOME VIRGINIA URBAN AREAS, SUCH
AS RICHMOND, BY COMPARISON WITH ARLINGTON, FAIRFAX AND NORFOLK, APPEAR
TO BE QUITE ADEQUATELY REPRESENTED IN THE GENERAL ASSEMBLY.  AND, FOR
THE REASONS STATED IN REYNOLDS, (FN12) IN REJECTING THE SO-CALLED
FEDERAL ANALOGY, AND IN GRAY V. SANDERS, 372 U.S. 368, 378, APPELLANTS'
RELIANCE ON AN ASSERTED ANALOGY TO THE DEVIATIONS FROM POPULATION IN
THE FEDERAL ELECTORAL COLLEGE IS MISPLACED.  THE FACT THAT THE MAXIMUM
VARIANCES IN THE POPULATIONS OF VARIOUS STATE LEGISLATIVE DISTRICTS ARE
LESS THAN THE EXTREME DEVIATIONS FROM A POPULATION BASIS IN THE
COMPOSITION OF THE FEDERAL ELECTORAL COLLEGE FAILS TO PROVIDE A
CONSTITUTIONALLY COGNIZABLE BASIS FOR SUSTAINING A STATE APPORTIONMENT
SCHEME UNDER THE EQUAL PROTECTION CLAUSE. 

WE FIND IT UNNECESSARY AND INAPPROPRIATE TO DISCUSS QUESTIONS
RELATING TO REMEDIES AT THE PRESENT TIME.  (FN13)  SINCE THE NEXT
ELECTION OF VIRGINIA LEGISLATORS WILL NOT OCCUR UNTIL 1965, AMPLE TIME
REMAINS FOR THE VIRGINIA LEGISLATURE TO ENACT A CONSTITUTIONALLY VALID
REAPPORTIONMENT SCHEME FOR PURPOSES OF THAT ELECTION.  AFTER THE
DISTRICT COURT HAS PROVIDED THE VIRGINIA LEGISLATURE WITH AN ADEQUATE
OPPORTUNITY TO ENACT A VALID PLAN, IT CAN THEN PROCEED, SHOULD IT
BECOME NECESSARY, TO GRANT RELIEF UNDER EQUITABLE PRINCIPLES TO INSURE
THAT NO FURTHER ELECTIONS ARE HELD UNDER AN UNCONSTITUTIONAL SCHEME. 
SINCE THE DISTRICT COURT STATED THAT IT WAS RETAINING JURISDICTION, AND
THAT PLAINTIFFS COULD SEEK FURTHER APPROPRIATE RELIEF, THE COURT BELOW
PRESUMABLY INTENDS TO TAKE FURTHER ACTION SHOULD THE VIRGINIA
LEGISLATURE FAIL TO ACT PROMPTLY IN REMEDYING THE CONSTITUTIONAL
DEFECTS IN THE STATE'S LEGISLATIVE APPORTIONMENT PLAN.  WE THEREFORE
AFFIRM THE JUDGMENT OF THE DISTRICT COURT ON THE MERITS OF THIS
LITIGATION, AND REMAND THE CASE FOR FURTHER PROCEEDINGS CONSISTENT WITH
THE VIEWS STATED HERE AND IN OUR OPINION IN REYNOLDS V. SIMS.  IT IS SO
ORDERED. 

FN1  REAPPORTIONMENT IN 1952 WAS ACCOMPLISHED ONLY AFTER THE GOVERNOR
CONVENED A SPECIAL SESSION OF THE VIRGINIA LEGISLATURE FOR THAT
PURPOSE, SINCE THE LEGISLATURE HAD ADJOURNED WITHOUT ENACTING ANY
STATUTES REALLOCATING REPRESENTATION.  IN ANTICIPATION OF THE
CONSTITUTIONAL MANDATE TO REAPPORTION IN 1962, THE VIRGINIA GOVERNOR,
IN JANUARY 1961, APPOINTED A COMMISSION ON REDISTRICTING.  IN DOING ITS
WORK, THIS COMMISSION EMPLOYED THE ASSITANCE OF THE BUREAU OF PUBLIC
ADMINISTRATION OF THE UNIVERSITY OF VIRGINIA.  SUGGESTING THAT SENATE
AND HOUSE DISTRICTS SHOULD BE, AS NEARLY AS PRACTICABLE, EQUAL IN
POPULATION, THE BUREAU SUBMITTED TWO ALTERNATIVE PLANS FOR THE
APPORTIONMENT OF THE HOUSE AND THREE ALTERNATIVE PLANS FOR THE
APPORTIONMENT OF SENATE SEATS.  THESE PLANS ALL FOLLOWED THE VARIOUS
CRITERIA TRADITIONALLY CONSIDERED IN PREVIOUS APPORTIONMENTS, AND
COMPLIED WITH THE CONSTITUTIONALLY PRESCRIBED SIZE LIMITATIONS ON BOTH
OF THE HOUSES.  IN LATE 1961, THE COMMISSION FILED ITS REPORT
RECOMMENDING A REDISTRICTING PLAN DIFFERENT FROM ANY OF THE PLANS
SUBMITTED BY THE BUREAU.  ITS PLAN, BASED MORE ON POLITICAL COMPROMISE
THAN ANY OF THE BUREAU'S SUGGESTED PLANS, DEVIATED FURTHER FROM
POPULATION-BASED REPRESENTATION THAN ANY OF THE BUREAU'S PROPOSALS.  AT
ITS 1962 REGULAR SESSION, THE VIRGINIA GENERAL ASSEMBLY COMPLETELY
DISREGARDED BOTH THE COMMISSION REPORT AND THE PLANS PREPARED BY THE
BUREAU, AND ADOPTED APPORTIONMENT SCHEMES OF ITS OWN FOR EACH HOUSE, IN
PRACTICAL EFFECT MAKING ONLY MINIMAL CHANGES IN THE EXISTING STATUTORY
PROVISIONS.  THESE ENACTMENTS, OF COURSE, ARE THE ONES PRINCIPALLY
COMPLAINED OF BY APPELLEES IN THIS LITIGATION. 

FN2  THE TERM "FLOTERIAL DISTRICT" IS USED TO REFER TO A LEGISLATIVE
DISTRICT WHICH INCLUDES WITHIN ITS BOUNDARIES SEVERAL SEPARATE
DISTRICTS OR POLITICAL SUBDIVISIONS WHICH INDEPENDENTLY WOULD NOT BE
ENTITLED TO ADDITIONAL REPRESENTATION BUT WHOSE CONGLOMERATE POPULATION
ENTITLES THE ENTIRE AREA TO ANOTHER SEAT IN THE PARTICULAR LEGISLATIVE
BODY BEING APPORTIONED.  SEE BAKER V. CARR, 369 U.S. 186, 256 (CLARK,
J., CONCURRING).  AS AN EXAMPLE, THE CITY OF LYNCHBURG, WITH A 1960
POPULATION OF 54,790, IS ITSELF ALLOCATED ONE SEAT IN THE VIRGINIA
HOUSE OF DELEGATES UNDER THE 1962 APPORTIONMENT PLAN.  AMHERST COUNTY,
WITH APOPULATION OF ONLY 22,953, IS NOT GIVEN ANY INDEPENDENT
REPRESENTATION IN THE VIRGINIA HOUSE.  BUT THE CITY OF LYNCHBURG AND
AMHERST COUNTY ARE COMBINED IN A FLOTERIAL DISTRICT WITH A TOTAL
POPULATION OF 77,743.  PRESUMABLY, IT WAS FELT THAT LYNCHBURG WAS
ENTITLED TO SOME ADDITIONAL REPRESENTATION IN THE VIRGINIA HOUSE, SINCE
ITS POPULATION SIGNIFICANTLY EXCEEDED THE IDEAL HOUSE DISTRICT SIZE OF
36,669.  HOWEVER, SINCE LYNCHBURG'S POPULATION DID NOT APPROACH TWICE
THAT FIGURE, IT WAS APPARENTLY DECIDED THAT LYNCHBURG WAS NOT ENTITLED,
BY ITSELF, TO AN ADDED SEAT.  ADJACENT AMHERST COUNTY, WITH A
POPULATION SUBSTANTIALLY SMALLER THAN THE IDEAL DISTRICT SIZE, WAS
PRESUMABLY FELT NOT TO BE ENTITLED TO A SEPARATE HOUSE SEAT.  THE
SOLUTION WAS THE CREATION OF A FLOTERIAL DISTRICT COMPRISING THE TWO
POLITICAL SUBDIVISIONS, THEREBY ACCORDING LYNCHBURG ADDITIONAL
REPRESENTATION AND GIVING AMHERST COUNTY A VOICE IN THE VIRGINIA HOUSE,
WITHOUT HAVING TO CREATE SEPARATE ADDITIONAL DISTRICTS FOR EACH OF THE
TWO POLITICAL SUBDIVISIONS. 

FN3  IN ILLUSTRATING THE DISPARITIES FROM POPULATION-BASED
REPRESENTATION IN THE APPORTIONMENT OF SENATE SEATS, THE DISTRICT COURT
INCLUDED IN ITS OPINION A CHART SHOWING THE COMPOSITION (BY COUNTIES
AND CITIES) AND POPULATIONS OF, AND THE NUMBER OF SENATORS ALLOTTED TO,
VARIOUS SENATORIAL DISTRICTS, AND COMPARING THESE FIGURES WITH THE
SENATORIAL REPRESENTATION GIVEN ARLINGTON, FAIRFAX AND NORFOLK.  213 F.
SUPP., AT 581-582. 

FN4  APPELLEES HAVE POINTED OUT, HOWEVER, THAT, SINCE SEATS IN THE
VIRGINIA LEGISLATURE ARE REAPPORTIONED DECENNIALLY, AND SINCE THE
ALLEGEDLY UNDERREPRESENTED DISTRICTS ARE THOSE WHOSE POPULATIONS ARE
INCREASING MORE RAPIDLY THAN THE ALLEGEDLY OVERREPRESENTED ONES, THE
DISPARITIES FROM POPULATION-BASED REPRESENTATION, IN BOTH HOUSES OF THE
VIRGINIA LEGISLATURE, WILL CONTINUALLY INCREASE THROUGHOUT THE 10-YEAR
PERIOD UNTIL THE NEXT REAPPORTIONMENT. 

FN5  IN DISCUSSING DEVIATIONS FROM POPULATION-BASED REPRESENTATION IN
THE ALLOCATION OF SEATS IN THE HOUSE OF DELEGATES, THE DISTRICT COURT
INCLUDED, AS PART OF ITS OPINION, A CHART SHOWING THE POPULATIONS OF
AND THE NUMBER OF SEATS GIVEN TO CERTAIN HOUSE DISTRICTS, AND COMPARING
THESE FIGURES WITH THE HOUSE REPRESENTATION ACCORDED ARLINGTON, FAIRFAX
AND NORFOLK.  213 F. SUPP., AT 582-584. 

FN6  FOR A DISCUSSION OF THE LACK OF FEDERAL CONSTITUTIONAL
SIGNIFICANCE OF THE PRESENCE OR ABSENCE OF AN AVAILABLE POLITICAL
REMEDY, SEE LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, POST,
PP. 736-737, DECIDED ALSO THIS DATE. 

FN7  VA. CONST., ART. XV, SECS. 196, 197. 

FN8  IN BROWN V. SAUNDERS, 159 VA. 28, 166 S.E. 105 (1932), THE
SUPREME COURT OF APPEALS OF VIRGINIA HELD THAT A CONGRESSIONAL
DISTRICTING STATUTE ENACTED BY THE VIRGINIA LEGISLATURE WAS INVALID
SINCE IT CONFLICTED WITH ART. IV, SEC. 55, OF THE STATE CONSTITUTION,
WHICH REQUIRES CONGRESSIONAL DISTRICTS TO HAVE "AS NEARLY AS
PRACTICABLE, AN EQUAL NUMBER OF INHABITANTS."  OF COURSE, INVOLVED IN
THAT CASE WAS A SPECIFIC STATE CONSTITUTIONAL REQUIREMENT RELATING TO
CONGRESSIONAL DISTRICTING, WHEREAS NO SUCH DETAILED STATE REQUIREMENTS
EXIST WITH RESPECT TO APPORTIONMENT OF SEATS IN THE VIRGINIA
LEGISLATURE.  APPELLANTS HAVE ARGUED, HOWEVER, THAT THIS DECISION
INDICATES THAT VIRGINIA COURTS WILL ALSO ADJUDICATE QUESTIONS RELATING
TO THE VALIDITY OF THE STATE'S LEGISLATIVE APPORTIONMENT SCHEME UNDER
THE PROVISIONS OF THE FEDERAL CONSTITUTION.    FN9  HOWEVER, IN TYLER
V. DAVIS, A CASE INVOLVING A SUIT INSTITUTED ON MARCH 26, 1963, ALMOST
FOUR MONTHS AFTER THE DISTRICT COURT'S DECISION IN THE INSTANT CASE,
THE CIRCUIT COURT OF THE CITY OF RICHMOND DISMISSED, ON THE MERITS, AN
ACTION CHALLENGING THE APPORTIONMENT OF SEATS IN THE VIRGINIA
LEGISLATURE.  ALTHOUGH THE STATE COURT FOUND THAT IT HAD JURISDICTION
AND THAT THE QUESTIONS RAISED WERE JUSTICIABLE IN NATURE, IT DISMISSED
THE COMPLAINT ON THE GROUND THAT PLAINTIFFS HAD FAILED TO SHOW THAT THE
SCHEME FOR APPORTIONING SEATS IN THE VIRGINIA LEGISLATURE WAS AN
INVIDIOUSLY DISCRIMINATORY ONE VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE. 

FN10  SEE 213 F. SUPP., AT 584.    FN11  VIRGINIA'S ELECTION LAWS
ENABLE PERSONS IN THE ARMED FORCES TO VOTE WITHOUT REGISTRATION OR
PAYMENT OF POLL TAX.  VA. CODE ANN., 1950 (REPL.  VOL.  1964) SEC. 24
23.1.  WHILE THE LITERAL LANGUAGE OF THIS PROVISION GRANTS THE
PRIVILEGE TO THOSE "IN ACTIVE SERVICE  ...  IN TIME OF WAR," THE
VIRGINIA STATE BOARD OF ELECTORS IS APPLYING IT CURRENTLY.  ALTHOUGH
THE MERE STATIONING OF MILITARY PERSONNEL IN THE STATE DOES NOT GIVE
THEM RESIDENCE, VIRGINIA ELECTION OFFICIALS INTERPRET THE APPLICABLE
STATUTORY PROVISIONS TO MEAN THAT RESIDENCE FOR MILITARY PERSONNEL IS
DETERMINED IN THE SAME MANNER AS FOR ALL OTHER CITIZENS.  MILITARY
PERSONNEL AND MEMBERS OF THEIR FAMILIES WHO HAVE BEEN RESIDENTS OF
VIRGINIA FOR A YEAR, RESIDENTS OF A COUNTY, CITY OR TOWN FOR SIX
MONTHS, AND RESIDENTS OF A PRECINCT FOR 30 DAYS ARE ENTITLED TO VOTE. 
MILITARY PERSONNEL ARE NOT INCLUDED IN THE CATEGORIES OF PERSONS
DISABLED FROM VOTING.  VA. CODE ANN., 1950 (REPL.  VOL.  1964) SEC. 24
18. 

FN12  SEE REYNOLDS V. SIMS, ANTE, PP. 571-576. 

FN13  SEE ID., AT 585. 

MR. JUSTICE CLARK CONCURS IN THE AFFIRMANCE FOR THE REASONS STATED IN
HIS CONCURRING OPINION IN REYNOLDS V. SIMS, ANTE, P. 587, DECIDED THIS
DATE. 

FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 589. 

MR. JUSTICE STEWART. 

IN THIS CASE, THE DISTRICT COURT RECOGNIZED THAT "POPULATION IS NOT
...  THE SOLE OR DEFINITIVE MEASURE OF DISTRICTS WHEN TAKEN BY THE
EQUAL PROTECTION CLAUSE."  213 F. SUPP., AT 584.  IN REACHING ITS
DECISION THE COURT MADE CLEAR THAT IT DID NOT "INTEND TO SAY THAT THERE
CANNOT BE WIDE DIFFERENCES OF POPULATION IN DISTRICTS IF A SOUND REASON
CAN BE ADVANCED FOR THE DISCREPANCIES."  ID., AT 585.  THE DISTRICT
COURT, HOWEVER, COULD FIND "NO RATIONAL BASIS FOR THE DISFAVORING OF
ARLINGTON, FAIRFAX AND NORFOLK."  IBID.  IN MY OPINION THE APPELLANTS
HAVE FAILED TO SHOW THAT THE TRIAL COURT ERRED IN REACHING THIS
CONCLUSION.  ACCORDINGLY, IN KEEPING WITH THE VIEW EXPRESSED IN MY
DISSENTING OPINION IN LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF
COLORADO, POST, P. 744, I WOULD AFFIRM THE DISTRICT COURT'S JUDGMENT
HOLDING THAT TO THE EXTENT A STATE LEGISLATIVE APPORTIONMENT PLAN IS
CONCLUSIVELY SHOWN TO HAVE NO RATIONAL BASIS, SUCH A PLAN VIOLATES THE
EQUAL PROTECTION CLAUSE. 
..END :






















ROMAN, CLERK OF THE PEACE V. SINCOCK 377 U.S. 695 


NO. 307.  ARGUED DECEMBER 9, 1963.  - DECIDED JUNE 15, 1964.  - 215 F.
SUPP. 169, AFFIRMED AND REMANDED. 


APPELLEES, VOTERS IN DELAWARE'S MOST POPULOUS COUNTY, ON BEHALF OF
THEMSELVES AND OTHERS SIMILARLY SITUATED, BROUGHT SUIT IN THE FEDERAL
DISTRICT COURT AGAINST OFFICIALS HAVING DUTIES IN CONNECTION WITH STATE
ELECTIONS, CONTENDING THAT THE APPORTIONMENT OF THE DELAWARE
LEGISLATURE VIOLATED THE EQUAL PROTECTION CLAUSE.  UNDER THE
LEGISLATIVE APPORTIONMENT PROVISIONS OF THE 1897 DELAWARE CONSTITUTION,
IN FORCE WHEN THIS LITIGATION BEGAN, THE STATE WAS DIVIDED INTO 17
SENATE AND 35 HOUSE SINGLE-MEMBER DISTRICTS FOR ELECTING STATE
LEGISLATORS.  BOTH SENATORIAL AND REPRESENTATIVE DISTRICTS HAD VARIED
GREATLY IN POPULATION, RESULTING IN A MAXIMUM POPULATION-VARIANCE RATIO
OF ABOUT 15-TO-1 FOR THE SENATE AND 35-TO-1 FOR THE HOUSE.  DISTRICTS
ELECTING A MAJORITY IN THE SENATE AND THE HOUSE COMPRISED ONLY 22% AND
18.5%, RESPECTIVELY, OF THE STATE'S TOTAL 1960 POPULATION.  A 1963
CONSTITUTIONAL AMENDMENT, ADOPTED BY THE LEGISLATURE WHILE THIS
LITIGATION WAS PENDING, INCREASED THE SIZE OF BOTH HOUSES, BUT LEFT THE
MAXIMUM POPULATION-VARIANCE RATIO FOR THE SENATE ABOUT THE SAME WHILE
REDUCING THE RATIO FOR THE HOUSE TO ABOUT 12-TO-1.  UNDER THE AMENDMENT
ABOUT TWO-THIRDS OF THE SENATE WOULD BE ELECTED FROM DISTRICTS
CONTAINING ONLY ABOUT 31% OF THE STATE'S POPULATION AND A MAJORITY OF
THE HOUSE WOULD REPRESENT DISTRICTS WHERE ONLY 28% RESIDE.  ALTHOUGH
REPEATED ATTEMPTS WERE MADE THROUGH THE YEARS TO REAPPORTION THE
LEGISLATURE OR CALL A CONSTITUTIONAL CONVENTION FOR THAT PURPOSE, THE
DELAWARE LEGISLATURE FAILED TO TAKE ANY ACTION UNTIL THE 1963
AMENDMENT.  NO INITIATIVE OR REFERENDUM PROCEDURE EXISTS IN THE STATE. 
AFTER THE 1963 AMENDMENT, THE DISTRICT COURT HELD THAT GROSS AND
INVIDIOUS DISCRIMINATION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE
EXISTED AGAINST APPELLEES AND OTHERS SIMILARLY SITUATED, BOTH BEFORE
AND AFTER THE AMENDMENT, BUT, WHILE RETAINING JURISDICTION, GAVE THE
LEGISLATURE FURTHER TIME TO ADOPT A VALID APPORTIONMENT PLAN.  HOWEVER,
IT LATER ENJOINED THE HOLDING OF ANY ELECTIONS UNDER THE EXISTING
SCHEME OR AMENDMENT AFTER THE GOVERNOR PROCLAIMED A PLAN FOR HOUSE
REDISTRICTING UNDER THE 1963 AMENDMENT.  APPEALS TO THIS COURT
FOLLOWED.  HELD: 

1.  THE SEATS IN BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE MUST BE
APPORTIONED SUBSTANTIALLY ON A POPULATION BASIS.  REYNOLDS V. SIMS,
ANTE, P. 533, FOLLOWED.  P. 708. 

2.  NEITHER OF THE HOUSES IN THE DELAWARE GENERAL ASSEMBLY WAS SO
APPORTIONED EITHER BEFORE OR AFTER THE 1963 AMENDMENT.  P. 708. 

3.  RELIANCE UPON THE SO-CALLED "FEDERAL ANALOGY" TO JUSTIFY
DEVIATIONS FROM A POPULATION BASIS IN APPORTIONMENT OF SEATS IN THE
DELAWARE LEGISLATURE IS MISPLACED.  REYNOLDS V. SIMS, SUPRA, FOLLOWED. 
PP. 708-709. 

4.  THE DELAWARE APPORTIONMENT SCHEME CANNOT BE UPHELD ON THE BASIS
THAT CONGRESS HAD ADMITTED VARIOUS STATES INTO THE UNION ALTHOUGH THE
APPORTIONMENT OF SEATS IN THEIR LEGISLATURES WAS BASED ON FACTORS OTHER
THAN POPULATION.  P. 709. 

5.  RIGID MATHEMATICAL STANDARDS FOR EVALUATING THE CONSTITIONAL
VALIDITY OF A STATE LEGISLATIVE APPORTIONMENT SCHEME UNDER THE EQUAL
PROTECTION CLAUSE ARE NEITHER PRACTICABLE NOR DESIRABLE.  P. 710. 

6.  APPLYING GENERAL EQUITABLE PRINCIPLES, THE DISTRICT COURT MUST
DETERMINE WHETHER IT WOULD BE ADVISABLE TO ALLOW THE 1964 ELECTION OF
THE DELAWARE LEGISLATORS TO BE CONDUCTED UNDER THE PROVISIONS OF THE
1963 AMENDMENT IN THE INTEREST OF AVOIDING POSSIBLE DISRUPTION OF STATE
ELECTION PROCESSES AND PERMITTING THE DELAWARE LEGISLATURE TO ADOPT A
CONSTITUTIONALLY VALID APPORTIONMENT SCHEME, OR WHETHER FURTHER DELAY
IN EFFECTING APPELLEES' CONSTITUTIONAL RIGHTS IS UNJUSTIFIED.  PP. 711
712. 

ROMAN, CLERK OF THE PEACE, ET AL. V. SINCOCK ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PRESENTED FOR DECISION IN THIS CASE IS THE CONSTITUTIONAL VALIDITY,
UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION, OF THE APPORTIONMENT OF SEATS IN THE DELAWARE
GENERAL ASSEMBLY. 

                               I. 

SHORTLY AFTER THIS COURT'S DECISION IN BAKER V. CARR, 369 U.S. 186,
PLAINTIFFS BELOW, RESIDENTS, TAXPAYERS AND QUALIFIED VOTERS OF NEW
CASTLE COUNTY, DELAWARE, FILED A COMPLAINT IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF DELAWARE, IN THEIR OWN BEHALF AND ON
BEHALF OF ALL PERSONS SIMILARLY SITUATED, CHALLENGING THE APPORTIONMENT
OF THE DELAWARE LEGISLATURE.  DEFENDANTS, SUED IN THEIR REPRESENTATIVE
CAPACITIES, WERE VARIOUS OFFICIALS CHARGED WITH THE PERFORMANCE OF
CERTAIN DUTIES IN CONNECTION WITH STATE ELECTIONS.  THE COMPLAINT
ALLEGED DEPRIVATION OF RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, AND ASSERTED THAT THE DISTRICT COURT HAD
JURISDICTION UNDER THE FOURTEENTH AMENDMENT, 42 U.S.C.  SECS. 1983 AND
1988, AND 28 U.S.C. SECS. 1343 AND 2201. 

PLAINTIFFS BELOW ALLEGED THAT THE APPORTIONMENT OF SEATS IN THE
DELAWARE LEGISLATURE RESULTED IN AN "INVIDIOUS DISCRIMINATION AS TO THE
INHABITANTS OF NEW CASTLE COUNTY AND THE CITY OF WILMINGTON," OPERATED
TO DENY THEM THE RIGHT TO CAST VOTES FOR DELAWARE LEGISLATORS "THAT ARE
OF EQUAL EFFECT WITH THAT OF EVERY OTHER CITIZEN OF THE STATE OF
DELAWARE," AND WAS ARBITRARY AND CAPRICIOUS IN FAILING TO PROVIDE A
REASONABLE CLASSIFICATION OF THOSE VOTING FOR MEMBERS OF THE DELAWARE
GENERAL ASSEMBLY.  (FN1)  PLAINTIFFS ALSO ASSERTED THAT THEY WERE
WITHOUT ANY OTHER ADEQUATE REMEDY SINCE THE EXISTING LEGISLATIVE
APPORTIONMENT WAS FROZEN INTO THE 1897 DELAWARE CONSTITUTION; THAT THE
PRESENT LEGISLATURE WAS DOMINATED BY LEGISLATORS REPRESENTING THE TWO
LESS POPULOUS COUNTIES; THAT IT WAS, AS A PRACTICAL MATTER, IMPOSSIBLE
TO AMEND THE STATE CONSTITUTION OR CONVENE A CONSTITUTIONAL CONVENTION
FOR THE PURPOSE OF REAPPORTIONING THE GENERAL ASSEMBLY; AND THAT THE
DELAWARE LEGISLATURE HAD CONSISTENTLY FAILED TO TAKE APPROPRIATE ACTION
WITH RESPECT TO REAPPORTIONMENT. 

PLAINTIFFS BELOW SOUGHT A DECLARATION THAT ART. II, SEC. 2, OF THE
DELAWARE CONSTITUTION, WHICH ESTABLISHED THE APPORTIONMENT OF SEATS IN
BOTH HOUSES OF THE DELAWARE LEGISLATURE, IS UNCONSTITUTIONAL, AND AN
INJUNCTION AGAINST DEFENDANTS TO PREVENT THE HOLDING OF ANY FURTHER
ELECTIONS UNDER THE EXISTING APPORTIONMENT SCHEME.  PLAINTIFFS ALSO
REQUESTED THAT THE DISTRICT COURT EITHER REAPPORTION THE DELAWARE
LEGISLATURE ON A POPULATION BASIS OR, ALTERNATIVELY, DIRECT THAT THE
NOVEMBER 1962 GENERAL ELECTION BE CONDUCTED ON AN AT-LARGE BASIS.  A
THREE-JUDGE DISTRICT COURT WAS ASKED FOR BY PLAINTIFFS, AND WAS
PROMPTLY CONVENED. 

ON JULY 25, 1962, THE DISTRICT COURT ENTERED AN ORDER STAYING THE
PROCEEDINGS UNTIL AUGUST 7, 1962, IN ORDER TO PERMIT THE DELAWARE
LEGISLATURE TO TAKE "SOME APPROPRIATE ACTION."  207 F. SUPP. 205.  THE
COURT NOTED THAT, SINCE PUBLICATION OF ANY PROPOSED CONSTITUTIONAL
AMENDMENT AT LEAST THREE MONTHS PRIOR TO THE NEXT GENERAL ELECTION WAS
REQUIRED UNDER DELAWARE LAW, (FN2) IT WOULD SERVE NO USEFUL PURPOSE TO
GRANT A STAY BEYOND AUGUST 7, 1962. 

ON JULY 30, 1962, THE GENERAL ASSEMBLY APPROVED A PROPOSED AMENDMENT
TO THE LEGISLATIVE APPORTIONMENT PROVISIONS OF THE DELAWARE
CONSTITUTION, (FN3) BASED UPON RECOMMENDATIONS OF A BIPARTISAN
REAPPORTIONMENT COMMITTEE APPOINTED BY THE DELAWARE GOVERNOR.  UNDER
DELAWARE LAW THIS AMENDMENT COULD NOT, HOWEVER, BECOME EFFECTIVE UNLESS
AGAIN APPROVED DURING THE NEXT SUCCEEDING SESSION OF THE GENERAL
ASSEMBLY.  (FN4) 

ON AUGUST 7, 1962, THE DISTRICT COURT ENTERED AN ORDER REFUSING TO
DISMISS THE SUIT, AND STATED THAT, WHILE IT HAD NO DESIRE TO SUBSTITUTE
ITS JUDGMENT FOR THE COLLECTIVE WISDOM OF THE DELAWARE GENERAL ASSEMBLY
IN MATTERS OF LEGISLATIVE APPORTIONMENT, IT HAD NO ALTERNATIVE BUT TO
PROCEED PROMPTLY IN DECIDING THE CASE.  210 F. SUPP. 395.  SOME OF THE
DEFENDANTS APPLIED FOR A FURTHER STAY OR PROCEEDINGS SO THAT THE
GENERAL ASSEMBLY COMING INTO OFFICE IN JANUARY 1963 WOULD HAVE AN
OPPORTUNITY TO APPROVE THE PROPOSED CONSTITUTIONAL AMENDMENT.  ON
AUGUST 8, 1962, PLAINTIFFS APPLIED FOR A PRELIMINARY INJUNCTION AGAINST
THE CONDUCTING OF THE NOVEMBER 1962 GENERAL ELECTION UNDER THE EXISTING
APPORTIONMENT PROVISIONS.  PLAINTIFFS WERE THEREAFTER PERMITTED TO
AMEND THEIR COMPLAINT TO REQUEST THAT THE PROPOSED CONSTITUTIONAL
AMENDMENT ALSO BE DECLARED UNCONSTITUTIONAL AND THAT THE COURT ORDER A
PROVISIONAL REAPPORTIONMENT OF THE DELAWARE LEGISLATURE. 

ON OCTOBER 16, 1962, THE DISTRICT COURT DENIED BOTH THE APPLICATIONS
FOR A PRELIMINARY INJUNCTION AND FOR A FURTHER STAY.  210 F. SUPP.
396.  DENIAL OF A PRELIMINARY INJUNCTION EFFECTIVELY PERMITTED THE
HOLDING OF THE NOVEMBER 1962 GENERAL ELECTION PURSUANT TO THE
LEGISLATIVE APPORTIONMENT PROVISIONS OF THE 1897 DELAWARE CONSTITION. 
AFTER EXTENDED PRETRIAL PROCEEDINGS, THE COURT, ON NOVEMBER 27, 1962,
ENTERED A PRETRIAL ORDER IN WHICH THE PARTIES AGREED TO THE ACCURACY OF
A SERIES OF EXHIBITS, STATISTICS AND VARIOUS STATISTICAL COMPUTATIONS. 
IN EARLY JANUARY 1963, THE DELAWARE GENERAL ASSEMBLY, ELECTED IN
NOVEMBER 1962, APPROVED THE PROPOSED CONSTITUTIONAL AMENDMENT BY THE
REQUISITE TWO-THIRDS VOTE.  AS A RESULT, THE AMENDMENT TO THE
LEGISLATIVE APPORTIONMENT PROVISIONS OF ART. II, SEC. 2, BECAME
EFFECTIVE ON JANUARY 17, 1963, HAVING BEEN PASSED BY TWO SUCCESSIVE
GENERAL ASSEMBLIES.  (FN5)  TRIAL BEFORE THE DISTRICT COURT ENSUED,
WITH THE EXPERT TESTIMONY OF VARIOUS POLITICAL SCIENTISTS BEING
PRESENTED. 

ON APRIL 17, 1963, THE DISTRICT COURT, IN AN OPINION BY CIRCUIT JUDGE
BIGGS, HELD THAT ART. II, SEC. 2, OF THE DELAWARE CONSTITUTION, BOTH
BEFORE AND AFTER THE 1963 AMENDMENT, RESULTED IN GROSS AND INVIDIOUS
DISCRIMINATION AGAINST THE PLAINTIFFS AND OTHERS SIMILARLY SITUATED, IN
VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
215 F. SUPP. 169.  STATING THAT "THE FUNDAMENTAL ISSUE PRESENTED FOR
...  ADJUDICATION IS WHETHER OR NOT THE APPORTIONING OF MEMBERS OF THE
GENERAL ASSEMBLY OF THE STATE OF DELAWARE OFFENDS THE ELECTORS OF THE
STATE BECAUSE OF AN ALLEGED DEBASEMENT OF THEIR VOTING RIGHTS," THE
COURT INDICATED THAT IT WOULD PASS UPON THE CONSTITUTIONAL VALIDITY OF
BOTH THE PROVISIONS OF THE 1963 CONSTITUION AND THE PROVISIONS OF THE
1963 CONSTITUTIONAL AMENDMENT.  AFTER CONSIDERING IN DETAIL THE
APPORTIONMENT OF LEGISLATIVE SEATS UNDER THE PROVISIONS OF THE 1897
DELAWARE CONSTITUTION, THE COURT BELOW CONCLUDED THAT "THE UNEVEN
GROWTH OF THE DIFFERENT AREAS OF THE STATE CREATED A CONDITION BECAUSE
OF WHICH THE NUMBERS OF INHABITANTS IN REPRESENTATIVE AND SENATORIAL
DISTRICTS DIFFERED NOT ONLY ON AN INTERCOUNTY BASIS BUT ALSO ON AN
INTRACOUNTY BASIS."  AFTER DISCUSSING THE EFFECT OF THE 1963
REAPPORTIONMENT AMENDMENT, THE DISTRICT COURT TURNED TO A CONSIDERATION
OF PLAINTIFFS' CLAIM UNDER THE FEDERAL CONSTITUTION.  STATING THAT THE
RIGHTS ASSERTED BY PLAINTIFFS ARE "PERSONAL CIVIL RIGHTS" OF GREAT
IMPORTANCE, THE COURT BELOW CONTINUED: 

"  ...  SECTION 2 OF ARTICLE II OF THE CONSTITUTION OF DELAWARE AS IT
EXISTED PRIOR TO THE 1963 AMENDMENT AND AS IT EXISTS TODAY CREATES SUCH
AN INEQUALITY IN VOTING POWER, RESULTING IN INVIDIOUS DISCRIMINATION,
AS TO BRING IT WITHIN THE PROSCRIPTION OF THE FOURTEENTH AMENDMENT OF
THE CONSTITUTION OF THE UNITED STATES  ...  .  THIS IS TRUE AS TO THE
APPORTIONMENT OF THE SENATE AS WELL AS TO THE APPORTIONMENT OF THE
HOUSE OF REPRESENTATIVES OF THE GENERAL ASSEMBLY OF DELAWARE.  WHILE
MATHEMATICAL EXACTITUDE IN APPORTIONMENT CANNOT BE EXPECTED, AND INDEED
IS NOT POSSIBLE IN AN ABSOLUTE SENSE, DISPARITIES CREATED BY SECTION 2
OF ARTICLE II, AS IT WAS PRIOR TO THE 1963 AMENDMENT AND AS IT IS NOW,
ARE OF SUCH A STARTLING NATURE AS TO DEMONSTRATE A DEBASEMENT OF
FRANCHISE OF INDIVIDUAL ELECTORS OF THIS STATE WHICH THE EQUAL
PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION CANNOT TOLERATE."  (FN6) 

AFTER HOLDING THAT THE APPORTIONMENT OF AT LEAST ONE HOUSE OF A
BICAMERAL STATE LEGISLATURE MUST BE BASED SUBSTANTIALLY ON POPULATION,
THE DISTRICT COURT REJECTED THE RELEVANCY OF THE SO-CALLED FEDERAL
ANALOGY AS A JUSTIFICATION FOR DEPARTURES FROM A POPULATION-BASED
APPORTIONMENT SCHEME IN THE OTHER HOUSE OF A STATE LEGISLATURE. 
ALTHOUGH FINDING NO RATIONAL OR REASONABLE BASIS FOR THE DELAWARE
APPORTIONMENT, EITHER AS IT PREVIOUSLY EXISTED OR AS AMENDED, THE COURT
NEVERTHELESS CONCLUDED THAT REAPPORTIONMENT WAS BASICALLY A LEGISLATIVE
FUNCTION, AND THAT A FURTHER OPPORTUNITY SHOULD BE GIVEN TO THE GENERAL
ASSEMBLY TO REAPPORTION ITSELF PROPERLY IN ACCORDANCE WITH THE
REQUIREMENTS OF THE FOURTEENTH AMENDMENT.  AFTER ATTEMPTING TO
DELINEATE SOME GUIDELINES FOR THE DELAWARE LEGISLATURE TO FOLLOW IN
REAPPORTIONING, THE COURT BELOW, WITH AN EYE TOWARD THE IMPENDING 1964
ELECTIONS, GAVE THE GENERAL ASSEMBLY UNTIL OCTOBER 1, 1963, TO ADOPT A
CONSTITUTIONALLY VALID PLAN.  (FN7)  THE DISTRICT COURT ENTERED A
DECREE DECLARING ART. II, SEC. 2, OF THE DELAWARE CONSTITUTION TO BE
UNCONSTITUTIONAL, AND RETAINED JURISDICTION TO ORDER INJUNCTIVE OR
OTHER RELIEF IF IT BECAME NECESSARY TO DO SO. 

ON MAY 6, 1963, THE SUPREME COURT OF DELAWARE ADVISED THE DELAWARE
GOVERNOR THAT, NOTWITHSTANDING THE HOLDING OF THE DISTRICT COURT, HE
SHOULD PROCEED ACCORDING TO THE PROVISIONS OF THE INVALIDATED 1963
CONSTITUTIONAL AMENDMENT TO PROCLAIM A REDISTRICTING PLAN FOR HOUSE OF
REPRESENTATIVES SEATS.  THE DELAWARE SUPREME COURT'S OPINION WAS
PREDICATED ON THE VIEW THAT THE DISTRICT COURT'S DECISION WAS NOT A
FINAL ONE, SINCE IT WAS APPEALABLE AND SINCE NO INJUNCTIVE RELIEF HAD
BEEN GRANTED.  ACTING ON THIS ADVICE, WHILE MAKING REFERENCE TO THE
DISTRICT COURT'S DECISION, THE GOVERNOR, ON MAY 17, 1963, PROCLAIMED A
PLAN PROVIDING FOR THE REDISTRICTING OF CERTAIN HOUSE DISTRICTS IN
ACCORDANCE WITH THE PROVISIONS OF THE 1963 REAPPORTIONMENT AMENDMENT. 
UNDER THESE CIRCUMSTANCES, ON MAY 20, 1963, THE DISTRICT COURT ENTERED
AN INJUNCTION AGAINST THE HOLDING OF ANY ELECTIONS FOR GENERAL ASSEMBLY
SEATS UNDER ART. II, SEC. 2, OF THE DELAWARE CONSTITUTION, EITHER AS IT
HAD PREVIOUSLY EXISTED OR AS AMENDED, AND AGAIN RESERVED JURISDICTION
TO MAKE SUCH FURTHER ORDERS AS IT MIGHT DEEM NECESSARY.  THE DISTRICT
COURT DENIED A MOTION TO STAY ITS INJUNCTION PENDING APPEAL, BUT, ON
APPLICATION BY DEFENDANTS BELOW, MR. JUSTICE BRENNAN, ON JUNE 27, 1963,
STAYED THE OPERATION OF THE DISTRICT COURT'S INJUNCTION PENDING FINAL
DISPOSITION OF THE CASE BY THIS COURT.  NOTICES OF APPEAL FROM THE
DISTRICT COURT'S FINAL DECREE, AND FROM ITS INJUNCTION AND DENIAL OF
THE MOTION FOR A STAY, WERE TIMELY FILED BY DEFENDANTS.  PURSUANT TO
THIS COURT'S RULE 15(3), BOTH APPEALS HAVE BEEN TREATED AS A SINGLE
CASE.  WHEN APPELLEES FILED A MOTION TO AFFIRM, APPELLANTS COUNTERED
WITH A MOTION TO ADVANCE.  ON OCTOBER 21, 1963, WE NOTED PROBABLE
JURISDICTION AND GRANTED APPELLANTS' MOTION TO ADVANCE.  375 U.S. 877. 

         II. 

UNDER THE PROVISIONS OF THE 1897 DELAWARE CONSTITUTION RELATING TO
LEGISLATIVE APPORTIONMENT, IN FORCE WHEN THIS LITIGATION WAS COMMENCED,
THE STATE WAS GEOGRAPHICALLY DIVIDED INTO 17 SENATE AND 35 HOUSE
DISTRICTS FOR THE PURPOSE OF ELECTING MEMBERS OF THE DELAWARE
LEGISLATURE.  DELAWARE SENATORS SERVE FOUR-YEAR TERMS, WITH
APPROXIMATELY HALF OF THE SENATORS ELECTED EVERY TWO YEARS, AND ALL
REPRESENTATIVES ARE ELECTED FOR TWO-YEAR TERMS.  QUALIFIED VOTERS IN
EACH SENATE AND HOUSE DISTRICT ELECT ONE SENATOR AND ONE
REPRESENTATIVE, UNDER THE 1897 CONSTITUTION'S APPORTIONMENT PLAN. 
DELAWARE IS COMPRISED OF ONLY THREE COUNTIES, AND ONLY ONE SIZABLE
METROPOLITAN AREA - WILMINGTON.  UNDER THE 1897 APPORTIONMENT, FIVE
SENATORIAL DISTRICTS AND 10 REPRESENTATIVE DISTRICTS WERE ALLOCATED TO
KENT COUNTY, TO SUSSEX COUNTY, AND TO "RURAL" NEW CASTLE COUNTY (THAT
PART OF THE COUNTY OUTSIDE OF THE CITY OF WILMINGTON), AND WILMINGTON
WAS GIVEN TWO SENATORIAL AND FIVE REPRESENTATIVE DISTRICTS.  THE NUMBER
AND BOUNDARIES OF BOTH THE SENATORIAL AND REPRESENTATIVE DISTRICTS WERE
SPECIFICALLY FIXED AND DESCRIBED IN THE CONSTITUTIONAL PROVISIONS, AND
NO PROVISION WAS MADE FOR THEIR ALTERATION.  WHEN THE CONSTITUTIONAL
PROVISIONS WERE ADOPTED, THE POPULATION OF THE STATE OF DELAWARE WAS
APPROXIMATELY 180,000, WITH ABOUT 32,000 LIVING IN KENT COUNTY, 38,000
RESIDING IN SUSSEX COUNTY, AND 105,000 LIVING IN NEW CASTLE COUNTY (OF
WHOM ABOUT 70,000 LIVED IN THE CITY OF WILMINGTON).  BY 1960, THE TOTAL
POPULATION OF DELAWARE HAD INCREASED TO 446,292, OF WHICH 307,446
RESIDED IN NEW CASTLE COUNTY, 95,827 IN WILMINGTON AND 211,619 IN
"RURAL" NEW CASTLE COUNTY.  AND, UNDER THE 1960 CENSUS FIGURES, 65,651
LIVED IN KENT COUNTY AND 73,195 RESIDED IN SUSSEX COUNTY.    UNDER THE
1897 APPORTIONMENT SCHEME, AS PERPETUATED OVER 65 YEARS LATER, SENATE
DISTRICTS RANGED IN POPULATION FROM 4,177 TO 64,820, RESULTING IN A
MAXIMUM POPULATION-VARIANCE RATIO, BETWEEN THE MOST POPULOUS AND LEAST
POPULOUS SENATE DISTRICTS, OF ABOUT 15-TO-1.  SENATORIAL DISTRICTS IN
KENT AND SUSSEX COUNTIES WERE CONSISTENTLY MUCH SMALLER IN POPULATION
THAN THOSE IN NEW CASTLE COUNTY, WITH THE EXCEPTION OF ONE NEW CASTLE
COUNTY DISTRICT WHICH, WITH A POPULATION OF ONLY 4,177, WAS THE
SMALLEST SENATORIAL DISTRICT IN THE STATE.  (FN8)  ONLY 22% OF THE
STATE'S TOTAL POPULATION RESIDED IN DISTRICTS ELECTING A MAJORITY OF
THE MEMBERS OF THE 17-MEMBER SENATE, APPLYING 1960 CENSUS FIGURES TO
THE SENATORIAL APPORTIONMENT SCHEME EXISTING WHEN THIS LITIGATION WAS
COMMENCED.    REPRESENTATIVE DISTRICTS RANGED IN POPULATION, AS OF
1960, FROM 1,643 TO 58,228, UNDER ART. II, SEC. 2, OF THE 1897 DELAWARE
CONSTITUTION, RESULTING IN A MAXIMUM POPULATION-VARIANCE RATIO, IN THE
DELAWARE HOUSE, OF ABOUT 35-TO-1.  AGAIN, THE AVERAGE POPULATION OF
HOUSE DISTRICTS IN KENT AND SUSSEX COUNTIES WAS SIGNIFICANTLY SMALLER
THAN THAT OF THOSE IN NEW CASTLE COUNTY, ALTHOUGH SEVERAL OF THE
"RURAL" NEW CASTLE COUNTY DISTRICTS WERE AMONG THE SMALLEST IN THE
STATE.  APPLYING 1960 CENSUS FIGURES TO THE 1897 APPORTIONMENT SCHEME,
WITH RESPECT TO THE DELAWARE HOUSE, THE 18 MOST SPARSELY POPULATED
REPRESENTATIVE DISTRICTS, CONTAINING ONLY ABOUT 18.5% OF THE STATE'S
TOTAL 1960 POPULATION, ELECTED A MAJORITY OF THE MEMBERS OF THE HOUSE
OF REPRESENTATIVES.  (FN9)  PERSONS LIVING IN THE SIX MOST POPULOUS
REPRESENTATIVE DISTRICTS, 233,718, MORE THAN ONE-HALF OF THE TOTAL
STATE POPULATION, HAD ONLY THE SAME VOTING POWER, UNDER THE 1897
CONSTITUTION'S SCHEME, AS THOSE 16,552 PERSONS LIVING IN THE SIX LEAST
POPULOUS DISTRICTS, WITH RESPECT TO ELECTING MEMBERS OF THE DELAWARE
HOUSE.  DISPARITIES IN THE POPULATION OF DISTRICTS, BOTH HOUSE AND
SENATE, WITHIN EACH COUNTY WERE ALSO PRESENTED IN THE DISTRICT
POPULATION FIGURES CONSIDERED BY THE DISTRICT COURT.  (FN11) 

EVIDENCE BEFORE THE DISTRICT COURT SHOWED THAT, DESPITE REPEATED
ATTEMPTS TO REAPPORTION THE LEGISLATURE OR TO CALL A CONSTITUTIONAL
CONVENTION FOR THAT PURPOSE, THE DELAWARE LEGISLATURE HAD CONSISTENTLY
FAILED TO TAKE ANY ACTION TO CHANGE THE EXISTING APPORTIONMENT OF
LEGISLATIVE SEATS.  NO INITIATIVE AND REFERENDUM PROCEDURE EXISTS IN
DELAWARE.  (FN12) LEGISLATIVE APPORTIONMENT HAS BEEN TRADITIONALLY
PROVIDED FOR WHOLLY BY CONSTITUTIONAL PROVISIONS IN DELAWARE, AND A
CONCURRENCE OF TWO-THIRDS OF BOTH HOUSES OF TWO CONSECUTIVE STATE
LEGISLATURES IS REQUIRED IN ORDER TO AMEND THE STATE CONSTITUTION. 
(FN13)  THE DELAWARE GENERAL ASSEMBLY MAY ALSO, BY A TWO-THIRDS VOTE,
SUBMIT TO THE STATE'S VOTERS THE QUESTION OF WHETHER TO HOLD A
CONSTITUTIONAL CONVENTION.  (FN14) 

UNDER THE 1963 AMENDMENT TO ART. II, SEC. 2, OF THE DELAWARE
CONSTITUTION, THE SIZE OF THE SENATE IS INCREASED FROM 17 TO 21
MEMBERS, AND THE FOUR ADDED SEATS ARE ALLOTTED EQUALLY TO KENT AND
SUSSEX COUNTIES, GIVING EACH OF THE STATE'S THREE COUNTIES SEVEN
SENATORS.  (FN15)  THE ADDED SENATORS ARE TO BE ELECTED AT LARGE FROM
DISTRICTS COMPRISING ABOUT ONE-HALF OF THE HOUSE DISTRICTS IN EACH OF
THE TWO COUNTIES.  AS A RESULT OF THIS CHANGE, EACH VOTER IN KENT AND
SUSSEX COUNTIES IS ENTITLED TO VOTE FOR TWO SENATORS AND ONE
REPRESENTATIVE.  WITH RESPECT TO THE HOUSE OF REPRESENTATIVES, THE
AMENDMENT PROVIDES THAT EACH EXISTING REPRESENTATIVE DISTRICT WITH A
POPULATION IN EXCESS OF 15,000 PERSONS IS TO BE ALLOTTED AN ADDITIONAL
REPRESENTATIVE FOR EACH ADDITIONAL 15,000 PERSONS OR MAJOR FRACTION
THEREOF.  THE BOUNDARIES OF THE ORIGINAL 35 REPRESENTATIVE DISTRICTS
ARE NOT AFFECTED, AND DISTRICTS RECEIVING ADDITIONAL REPRESENTATIVES
ARE TO BE DIVIDED, BY A REDISTRICTING COMMISSION HEADED BY THE
GOVERNOR, SO THAT EACH OF THE NEW DISTRICTS ELECTS ONE REPRESENTATIVE. 
(FN16)  THE NET EFFECT OF THE 1963 AMENDMENT, AS REGARDS IMMEDIATE
CHANGES IN HOUSE REPRESENTATION, IS TO ALLOT 10 ADDITIONAL
REPRESENTATIVES TO VARIOUS DISTRICTS IN NEW CASTLE COUNTY, INCREASING
THE SIZE OF THE HOUSE TO 45 MEMBERS.  REPRESENTATION OF KENT AND SUSSEX
COUNTIES IS TO BE UNAFFECTED.  UNDER THE REVISED APPORTIONMENT, THE
MAXIMUM POPULATION-VARIANCE RATIO IS REDUCED TO ABOUT 12-TO-1 WITH
RESPECT TO THE HOUSE, BUT REMAINS ABOUT 15-TO-1 IN THE SENATE.  A
MAJORITY OF THE MEMBERS OF THE HOUSE WOULD BE ELECTED UNDER THE 1963
AMENDMENT, FROM DISTRICTS WITH ONLY ABOUT 28% OF THE STATE'S TOTAL
POPULATION.  AND, SINCE THE 1963 AMENDMENT ADDED TWO SENATE SEATS EACH
FOR THE TWO SMALLER COUNTIES, THE CHANGE IN SENATORIAL APPORTIONMENT
WOULD RESULT IN TWO-THIRDS OF THE SENATE BEING ELECTED FROM DISTRICTS
WHERE ONLY ABOUT 31% OF THE STATE'S POPULATION RESIDE.  ABOUT 21% OF
THE STATE'S POPULATION WOULD BE REPRESENTED BY A MAJORITY OF THE
MEMBERS OF THE DELAWARE SENATE, UNDER THE 1963 REAPPORTIONMENT. 

THE 1963 AMENDMENT ALSO PROVIDED THAT, IF A CONSTITUTIONAL CONVENTION
WERE TO BE CALLED, THE NUMBER OF DELEGATES AND THE METHOD OF THEIR
ELECTION WERE NOT TO BE AFFECTED BY THE AMENDED APPORTIONMENT
PROVISIONS, AND, FOR THE PURPOSE OF ANY FUTURE CONSTITUTIONAL
CONVENTION, THE REPRESENTATIVE DISTRICTS WERE TO ELECT DELEGATES ON THE
BASIS OF THE APPORTIONMENT PROVIDED BY ART. II, SEC. 2, AS IT EXISTED
PRIOR TO THE AMENDMENT.  THUS, THE NUMBER OF CONSTITUTIONAL CONVENTION
DELEGATES WOULD CONTINUE TO BE 41, ONE FROM EACH OF THE 35
REPRESENTATIVE DISTRICTS PROVIDED FOR UNDER THE 1897 SCHEME, WITH TWO
ELECTED AT LARGE FROM EACH OF THE THREE COUNTIES.  (FN17)

                                   III. 

IN REYNOLDS V. SIMS, ANTE, P. 533, DECIDED ALSO THIS DATE, WE HELD
THAT THE EQUAL PROTECTION CLAUSE REQUIRES THAT SEATS IN BOTH HOUSES OF
A BICAMERAL STATE LEGISLATURE MUST BE APPORTIONED SUBSTANTIALLY ON A
POPULATION BASIS.  NEITHER OF THE HOUSES OF THE DELAWARE GENERAL
ASSEMBLY, EITHER BEFORE OR AFTER THE 1963 CONSTITUTIONAL AMENDMENT, WAS
SO APPORTIONED.  THUS, WE HOLD THAT THE DISTRICT COURT CORRECTLY FOUND
THE DELAWARE LEGISLATIVE APPORTIONMENT CONSTITUTIONALLY INVALID, AND
AFFIRM THE DECISIONS BELOW. 

FOR THE REASONS STATED IN OUR OPINION IN REYNOLDS, (FN18) APPELLANTS'
RELIANCE UPON THE SO-CALLED FEDERAL ANALOGY TO JUSTIFY THE DEVIATIONS
FROM A POPULATION BASIS IN THE APPORTIONMENT OF SEATS IN THE DELAWARE
LEGISLATURE IS MISPLACED.  (FN19)  AND APPELLANTS' ARGUMENT THAT THE
DELAWARE APPORTIONMENT SCHEME SHOULD BE UPHELD SINCE CONGRESS HAS
ADMITTED VARIOUS STATES INTO THE UNION ALTHOUGH THE APPORTIONMENT OF
SEATS IN THEIR LEGISLATURES WAS BASED ON FACTORS OTHER THAN POPULATION
IS ALSO UNCONVINCING.  (FN20)  IN GIVING THE DELAWARE LEGISLATURE AN
OPPORTUNITY TO ADOPT A CONSTITUTIONALLY VALID PLAN OF LEGISLATIVE
APPORTIONMENT, AND IN DEFERRING DECISION UNTIL AFTER THE NOVEMBER 1962
GENERAL ELECTION, BECAUSE OF THE IMMINENCE OF THAT ELECTION AND THE
DISRUPTIVE EFFECT WHICH ITS DECISION MIGHT HAVE HAD, THE DISTRICT COURT
ACTED IN A WISE AND TEMPERATE MANNER.  AND THE COURT BELOW DID NOT ERR
IN GRANTING INJUNCTIVE RELIEF AFTER IT HAD BECOME APPARENT THAT,
DESPITE ITS DECREE HOLDING THAT THE 1963 CONSTITUTIONAL AMENDMENT
REAPPORTIONING SEATS IN THE DELAWARE LEGISLATURE FAILED TO COMPLY WITH
FEDERAL CONSTITUTIONAL REQUIREMENTS, NO FURTHER REAPPORTIONMENT BY THE
DELAWARE GENERAL ASSEMBLY WAS PROBABLE. 

OUR AFFIRMANCE OF THE DECISION BELOW IS NOT MEANT TO INDICATE
APPROVAL OF THE DISTRICT COURT'S ATTEMPT TO STATE IN MATHEMATICAL
LANGUAGE THE CONSTITUTIONALLY PERMISSIBLE BOUNDS OF DISCRETION IN
DEVIATING FROM APPORTIONMENT ACCORDING TO POPULATION.  (FN21)  IN OUR
VIEW THE PROBLEM DOES NOT LEND ITSELF TO ANY SUCH UNIFORM FORMULA, AND
IT IS NEITHER PRACTICABLE NOR DESIRABLE TO ESTABLISH RIGID MATHEMATICAL
STANDARDS FOR EVALUATING THE CONSTITUTIONAL VALIDITY OF A STATE
LEGISLATIVE APPORTIONMENT SCHEME UNDER THE EQUAL PROTECTION CLAUSE. 
RATHER, THE PROPER JUDICIAL APPROACH IS TO ASCERTAIN WHETHER, UNDER THE
PARTICULAR CIRCUMSTANCES EXISTING IN THE INDIVIDUAL STATE WHOSE
LEGISLATIVE APPORTIONMENT IS AT ISSUE, THERE HAS BEEN A FAITHFUL
ADHERENCE TO A PLAN OF POPULATION-BASED REPRESENTATION, WITH SUCH MINOR
DEVIATIONS ONLY AS MAY OCCUR IN RECOGNIZING CERTAIN FACTORS THAT ARE
FREE FROM ANY TAINT OF ARBITRARINESS OR DISCRIMINATION. 

APART FROM WHAT WE SAID IN REYNOLDS, WE EXPRESS NO VIEW ON QUESTIONS
RELATING TO REMEDIES AT THE PRESENT TIME.  (FN22)  REGARDLESS OF THE
REQUIREMENTS OF THE DELAWARE CONSTITUTION (FN23) AND THE FACT THAT
LEGISLATIVE APPORTIONMENT HAS TRADITIONALLY BEEN CONSIDERED A
CONSTITUTIONAL MATTER IN DELAWARE, THE DELAY INHERENT IN FOLLOWING THE
STATE CONSTITUTIONAL PRESCRIPTION FOR APPROVAL OF CONSTITUTIONAL
AMENDMENTS BY TWO SUCCESSIVE GENERAL ASSEMBLIES CANNOT BE ALLOWED TO
RESULT IN AN IMPERMISSIBLE DEPRIVATION OF APPELLEES' RIGHT TO AN
ADEQUATE VOICE IN THE ELECTION OF LEGISLATORS TO REPRESENT THEM. 
ACTING UNDER GENERAL EQUITABLE PRINCIPLES, THE COURT BELOW MUST NOW
DETERMINE WHETHER IT WOULD BE ADVISABLE, SO AS TO AVOID A POSSIBLE
DISRUPTION OF STATE ELECTION PROCESSES AND PERMIT ADDITIONAL TIME FOR
THE DELAWARE LEGISLATURE TO ADOPT A CONSTITUTIONALLY VALID
APPORTIONMENT SCHEME, TO ALLOW THE 1964 ELECTION OF DELAWARE
LEGISLATORS TO BE CONDUCTED PURSUANT TO THE PROVISIONS OF THE 1963
CONSTITUTIONAL AMENDMENT, OR WHETHER THOSE FACTORS ARE INSUFFICIENT TO
JUSTIFY ANY FURTHER DELAY IN THE EFFECTUATION OF APPELLEES'
CONSTITUTIONAL RIGHTS.  WE THEREFORE AFFIRM THE DECISIONS OF THE
DISTRICT COURT HERE APPEALED FROM, AND REMAND THE CASE FOR FURTHER
PROCEEDINGS CONSISTENT WITH THE VIEWS STATED HERE AND IN OUR OPINION IN
REYNOLDS V. SIMS.  IT IS SO ORDERED. 

FN1  INTERESTINGLY, ART. I, SEC. 3, OF THE DELAWARE CONSTITUTION
PROVIDES: "ALL ELECTIONS SHALL BE FREE AND EQUAL." 

FN2  SEE 207 F. SUPP., AT 207.  THE DECISIONS OF THE COURT BELOW ARE
REPORTED SUB NOM.  SINCOCK V. TERRY AND SINCOCK V. DUFFY. 

FN3  BY THE REQUISITE TWO-THIRDS VOTE IN BOTH HOUSES OF THE GENERAL
ASSEMBLY, PURSUANT TO ART. XVI, SEC. 1, OF THE DELAWARE CONSTITUTION. 

FN4  UNDER ART. XVI, SEC. 1, OF THE DELAWARE CONSTITUTION, A
CONSTITUTIONAL AMENDMENT MUST BE PASSED BY A TWO-THIRDS VOTE OF BOTH
HOUSES OF SUCCESSIVE GENERAL ASSEMBLIES BEFORE BECOMING PART OF THE
STATE CONSTITUTION. 

FN5  53 DEL. LAWS, C. 425 (1962); 54 DEL. LAWS, C. 1 (1963). 

FN6  215 F. SUPP., AT 184. 

FN7  THE OTHER TWO JUDGES BOTH WROTE SHORT OPINIONS.  CHIEF DISTRICT
JUDGE WRIGHT INDICATED THAT HE CONCURRED IN THE VIEW THAT ART. II, SEC.
2, OF THE DELAWARE CONSTITUTION, BEFORE AND AFTER AMENDMENT, WAS
UNCONSTITUTIONAL, SINCE AT LEAST ONE HOUSE OF A STATE LEGISLATURE MUST
BE APPORTIONED STRICTLY ON A POPULATION BASIS.  HE INDICATED THAT HE
ALSO AGREED WITH THE "PRECATORY OBSERVATION" OF JUDGE BIGGS THAT THE
OTHER HOUSE MUST ALSO BE APPORTIONED SUBSTANTIALLY ON A POPULATION
BASIS. 

DISTRICT JUDGE LAYTON CONCURRED IN THE RESULT REACHED, FINDING THAT
ART. II, SEC. 2, OF THE DELAWARE CONSTITUTION, PRIOR TO AS WELL AS
AFTER THE 1963 AMENDMENT, WAS UNCONSTITUTIONAL WITH RESPECT TO THE
HOUSE OF REPRESENTATIVES.  HE STATED THAT, SINCE THE 1963 AMENDMENT
CONTAINED NO SEVERABILITY CLAUSE, THE WHOLE AMENDMENT WAS
UNCONSTITUTIONAL BECAUSE OF THE PROVISIONS RELATING TO THE HOUSE, AND
THAT THEREFORE THERE WAS NO NEED TO CONSIDER WHETHER THE SENATORIAL
PROVISIONS WERE VALID.  HE INDICATED, HOWEVER, THAT HE THOUGHT THAT IT
WAS PERMISSIBLE TO APPORTION ONE HOUSE ON A NONPOPULATION AREA BASIS
WHERE THE OTHER HOUSE WAS APPORTIONED STRICTLY ON POPULATION, SINCE
SUCH A SYSTEM WOULD BE PATTERNED ON THE SCHEME OF REPRESENTATION IN THE
FEDERAL CONGRESS. 

FN8  INCLUDED IN THE DISTRICT COURT'S OPINION IS A CHART SHOWING THE
POPULATION OF THE 17 SENATORIAL DISTRICTS ESTABLISHED BY ART. II, SEC.
2, OF THE 1897 DELAWARE CONSTITUTION, AND TRACING THE POPULATION
CHANGES IN EACH DURING THE PERIOD 1930-1960.  215 F. SUPP., AT 176. 

FN9  A CHART SHOWING THE POPULATION OF THE 35 REPRESENTATIVE
DISTRICTS ESTABLISHED BY ART. II, SEC. 2, OF THE 1897 DELAWARE
CONSTITUTION, AND TRACING THE POPULATION CHANGES IN EACH DURING THE
PERIOD 1890-1960, IS INCLUDED IN THE DISTRICT COURT'S OPINION.  215 F.
SUPP., AT 174-175. 

FN10  AND, AS POINTED OUT BY THE COURT BELOW, UNDER THE APPORTIONMENT
OF HOUSE SEATS CONTAINED IN ART. II, SEC. 2, OF THE DELAWARE
CONSTITUTION, "THE INHABITANTS OF THE 18 LEAST POPULATED REPRESENTATIVE
DISTRICTS ARE LESS IN NUMBER THAN THOSE OF THE TWO DISTRICTS HAVING THE
HEAVIEST CONCENTRATION OF POPULATION; NONETHELESS, THE FORMER ELECT 18
REPRESENTATIVES IN THE HOUSE OF REPRESENTATIVES, WHILE THE LATTER ELECT
2 REPRESENTATIVES IN THE HOUSE OF REPRESENTATIVES OF THE DELAWARE
GENERAL ASSEMBLY."  215 F. SUPP., AT 176. 

FN11  THE 35 REPRESENTATIVE DISTRICTS TENDED TO FOLLOW GENERALLY THE
BOUNDARIES OF A "HUNDRED," A GEOGRAPHICAL SUBDIVISON OF COUNTIES IN
DELAWARE SINCE ITS FOUNDING, AND THE 17 SENATORIAL DISTRICTS, WHICH
WERE ALSO DESCRIBED IN A DETAILED FASHION IN ART. II, SEC. 2, OF THE
1897 DELAWARE CONSTITION, WERE COMPOSED EITHER OF TWO REPRESENTATIVE
DISTRICTS EACH OR TWO OR MORE HUNDREDS OR PORTIONS OF HUNDREDS. 

FN12  FOR A DISCUSSION OF THE LACK OF FEDERAL CONSTITUTIONAL
SIGNIFICANCE OF THE PRESENCE OR ABSENCE OF AN AVAILABLE POLITICAL
REMEDY, SEE LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO, POST,
PP. 736-737, DECIDED ALSO THIS DATE. 

FN13  UNDER ART. XVI, SEC. 1, OF THE DELAWARE CONSTITUTION. 

FN14  UNDER ART. XVI, SEC. 2, OF THE DELAWARE CONSTITUTION. 

FN15  A CHART SHOWING THE COMPOSITION OF THE SENATE AND THE
POPULATION OF EACH OF THE 21 SENATORIAL DISTRICTS UNDER THE 1963
AMENDMENT IS INCLUDED IN THE DISTRICT COURT'S OPINION.  215 F. SUPP.,
AT 181. 

FN16  INCLUDED IN THE DISTRICT COURT'S OPINION ARE CHARTS INDICATING
THE EFFECT OF THE 1963 AMENDMENT ON THE REPRESENTATION OF NEW CASTLE
COUNTY IN THE HOUSE OF REPRESENTATIVES AND SHOWING THE COMPOSITION OF
THE DELAWARE HOUSE, AS REAPPORTIONED, INCLUDING THE POPULATION OF EACH
OF ITS 45 DISTRICTS UNDER 1960 CENSUS FIGURES.  215 F. SUPP., AT 179
180.    FN17  UNDER ART. XVI, SEC. 2, OF THE DELAWARE CONSTITUTION. 

FN18  SEE REYNOLDS V. SIMS, ANTE, PP. 571-576. 

FN19  THAT THE THREE DELAWARE COUNTIES MAY HAVE POSSESSED SOME
ATTRIBUTES OF LIMITED SOVEREIGNTY PRIOR TO THE INCEPTION OF DELAWARE AS
A STATE PROVIDES NO BASIS FOR APPLYING THE FEDERAL ANALOGY TO
LEGISLATIVE APPORTIONMENT IN DELAWARE WHILE HOLDING IT INAPPLICABLE IN
OTHER STATES.  WHATEVER THE ROLE OF COUNTIES IN DELAWARE DURING THE
COLONIAL PERIOD, THEY NEVER HAVE HAD THOSE ASPECTS OF SOVEREIGNTY WHICH
THE STATES POSSESSED WHEN OUR FEDERAL SYSTEM OF GOVERNMENT WAS
ADOPTED.  AND IT COULD HARDLY BE CONTENDED THAT DELAWARE'S COUNTIES
RETAINED ANY ELEMENTS OF SOVEREIGN POWER, WHEN THE STATE WAS FORMED,
THAT AT ALL COMPARE WITH THOSE RETAINED BY THE STATES UNDER OUR FEDERAL
CONSTITUTION.  SEE 215 F. SUPP., AT 186, WHERE THE DISTRICT COURT
STATED THAT "THERE NEVER WAS MUCH AND THERE IS NOW NO SOVEREIGNTY IN
THE COUNTIES OF DELAWARE  ...  ." 

ADDITIONALLY, THE DELAWARE LEGISLATIVE APPORTIONMENT SCHEME HERE
CHALLENGED, EVEN AFTER THE 1963 CONSTITUTIONAL AMENDMENT FAILS TO
RESEMBLE THE PLAN OF REPRESENTATION IN THE FEDERAL CONGRESS IN SEVERAL
SIGNIFICANT RESPECTS:  THE DELAWARE HOUSE OF REPRESENTATIVES IS PLAINLY
NOT APPORTIONED IN ACCORDANCE WITH POPULATION, AND SENATORS IN DELAWARE
ARE NOT CHOSEN AS REPRESENTATIVES OF COUNTIES.  ALTHOUGH, UNDER THE
1963 AMENDMENT, EACH COUNTY IS GIVEN AN EQUAL NUMBER OF SENATORS, THE
21 SENATORS ARE CHOSEN ONE EACH FROM THE 21 SENATORIAL DISTRICTS, SEVEN
PER COUNTY, ESTABLISHED SOLELY FOR THE PURPOSE OF THEIR ELECTION.  EACH
DELAWARE SENATOR REPRESENTS HIS DISTRICT AND NOT THE COUNTY IN WHICH
THE DISTRICT IS LOCATED.  MEMBERS OF THE FEDERAL SENATE ARE OF COURSE
ELECTED FROM A STATE AT LARGE, AND REPRESENT THE ENTIRE STATE. 

FN20  SEE THE DISCUSSION OF AND THE REASONS FOR REJECTING THIS
ARGUMENT IN REYNOLDS V. SIMS, ANTE, P. 582. 

FN21  THE COURT BELOW SUGGESTED THAT POPULATION-VARIANCE RATIOS
SMALLER THAN 1 1/2-TO-1 WOULD PRESUMABLY COMPORT WITH MINIMAL
CONSTITUTIONAL REQUISITES, WHILE RATIOS IN EXCESS THEREOF WOULD
NECESSARILY INVOLVE DEVIATIONS FROM POPULATION-BASED APPORTIONMENT TOO
EXTREME TO BE CONSTITUTIONALLY SUSTAINABLE.  SEE 215 F. SUPP., AT 190. 

FN22 SEE REYNOLDS V. SIMS, ANTE, P. 585. 

FN23  PARTICULARLY ART. XVI, SEC. 1, WHICH REQUIRES THE APPROVAL BY
SUCCESSIVE STATE LEGISLATURES BEFORE A PROPOSED CONSTITUTIONAL
AMENDMENT CAN BE ADOPTED. 

IN ITS INITIAL OPINION, INCIDENT TO ITS ORDER GRANTING A LIMITED STAY,
THE DISTRICT COURT SUGGESTED THAT THE DELAWARE LEGISLATURE MIGHT DESIRE
TO AMEND THE STATE CONSTITUTION SO AS TO MAKE LEGISLATIVE APPORTIONMENT
A STATUTORY INSTEAD OF A CONSTITUTIONAL MATTER, IN ORDER TO OBVIATE THE
DELAY INHERENTLY INVOLVED IN COMPLYING WITH THE REQUIREMENT OF THE
DELAWARE CONSTITUTION THAT CONSTITUTIONAL AMENDMENTS MUST BE APPROVED
BY TWO SUCCESSIVE GENERAL ASSEMBLIES BEFORE BECOMING EFFECTIVE.  207 F.
SUPP., AT 206-207.  IN THIS MANNER, THE DISTRICT COURT SUGGESTED, IF
THE DELAWARE LEGISLATURE'S ATTEMPT AT REAPPORTIONMENT SHOULD BE FOUND
DEFICIENT UNDER THE FEDERAL CONSTITUTION, THE GENERAL ASSEMBLY ELECTED
IN NOVEMBER 1962 WOULD BE FREE, UNDER STATE LAW, TO PROCEED
EXPEDITIOUSLY WITH THE ENACTMENT OF A REVISED STATUTORY REAPPORTIONMENT
PLAN CONSONANT WITH THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE. 
UNFORTUNATELY, THE DELAWARE LEGISLATURE FAILED TO ACT ON THE COURT'S
SUGGESTION, AND INSTEAD PROPOSED THE CONSTITUTIONAL AMENDMENT
HEREINBEFORE DISCUSSED, WHICH WAS APPROVED BY TWO CONSECUTIVE STATE
LEGISLATURES IN LATE 1962 AND IN EARLY 1963.  HOWEVER, IN ITS OPINION
ON THE MERITS, THE DISTRICT COURT INTIMATED THAT, WITH THE DELAWARE
CONSTITUTIONAL PROVISIONS RELATING TO LEGISLATIVE APPORTIONMENT
DECLARED INVALID, THE DELAWARE LEGISLATURE COULD "THEN PROCEED TO PASS
AN APPORTIONMENT STATUTE MEETING THE REQUIREMENTS OF THE FOURTEENTH
AMENDMENT ...  ."  215 F. SUPP., AT 191. 

MR. JUSTICE CLARK CONCURS IN THE AFFIRMANCE FOR THE REASONS STATED IN
HIS CONCURRING OPINION IN REYNOLDS V. SIMS, ANTE, P. 587, DECIDED THIS
DATE. 

FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 589. 

MR. JUSTICE STEWART. 

IN THIS CASE THE APPELLEES SHOWED THAT THE APPORTIONMENT OF SEATS
AMONG THE DISTRICTS REPRESENTED IN THE DELAWARE HOUSE OF
REPRESENTATIVES AND WITHIN THE COUNTIES REPRESENTED IN THE DELAWARE
SENATE, APPARENTLY REFLECTS "NO POLICY, BUT SIMPLY ARBITRARY AND
CAPRICIOUS ACTION."  THE APPELLANTS HAVE FAILED TO DISPEL THIS SHOWING
BY SUGGESTING ANY POSSIBLE RATIONAL EXPLANATION FOR THESE ASPECTS OF
DELAWARE'S SYSTEM OF LEGISLATIVE APPORTIONMENT.  ACCORDINGLY, FOR THE
REASONS STATED IN MY DISSENTING OPINION IN LUCAS V. FORTY-FOURTH
GENERAL ASSEMBLY OF COLORADO, POST, P. 744, I WOULD AFFIRM THE JUDGMENT
OF THE DISTRICT COURT INSOFAR AS IT HOLDS THAT DELAWARE'S SYSTEM OF
APPORTIONMENT VIOLATES THE EQUAL PROTECTION CLAUSE. 
..END :












LUCAS V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO 377 U.S. 713 


NO. 508.  ARGUED MARCH 31 - APRIL 1, 1964.  - DECIDED JUNE 15, 1964.  -
219 F. SUPP. 922, REVERSED AND REMANDED. 


APPELLANTS, VOTERS IN THE DENVER METROPOLITAN AREA, SEEKING
DECLARATORY AND INJUNCTIVE RELIEF, SUED VARIOUS OFFICIALS HAVING DUTIES
IN CONNECTION WITH STATE ELECTIONS CHALLENGING THE APPORTIONMENT OF
SEATS IN BOTH HOUSES OF THE COLORADO GENERAL ASSEMBLY.  A THREE-JUDGE
FEDERAL DISTRICT COURT DEFERRED A HEARING UNTIL AFTER THE 1962 GENERAL
ELECTION, AT WHICH TWO PROPOSALS FOR AMENDING THE STATE CONSTITUTIONAL
PROVISIONS RELATING TO LEGISLATIVE APPORTIONMENT WERE TO BE VOTED ON BY
THE COLORADO ELECTORATE.  UNDER THE PLAN WHICH WAS ADOPTED THE HOUSE OF
REPRESENTATIVES WAS PRESUMABLY TO BE APPORTIONED ON THE BASIS OF
POPULATION BUT THE EXISTING APPORTIONMENT OF THE SENATE, BASED ON A
COMBINATION OF POPULATION AND OTHER FACTORS (GEOGRAPHY, COMPACTNESS AND
CONTIGUITY, ACCESSIBILITY, NATURAL BOUNDARIES, AND CONFORMITY TO
HISTORICAL DIVISIONS) WAS SUBSTANTIALLY MAINTAINED.  THE REJECTED
PROPOSAL WOULD HAVE BASED APPORTIONMENT OF BOTH HOUSES LARGELY ON THE
BASIS OF POPULATION.  UNDER THE ADOPTED PLAN, COUNTIES WITH ONLY ABOUT
ONE-THIRD OF THE STATE'S TOTAL POPULATION WOULD ELECT A MAJORITY OF THE
SENATE; THE MAXIMUM POPULATION-VARIANCE RATIO WOULD BE ABOUT 3.6-TO-1;
AND THE CHIEF METROPOLITAN AREAS, WITH OVER TWO-THIRDS OF THE STATE'S
POPULATION, COULD ELECT ONLY A BARE MAJORITY OF THE SENATE.  FOLLOWING
THE GENERAL ELECTION THE PARTIES AMENDED THEIR PLEADINGS SO THAT A
CHALLENGE TO THE NEWLY ADOPTED APPORTIONMENT SCHEME WAS SOLELY
INVOLVED.  THE DISTRICT COURT, STRESSING APPROVAL BY THE ELECTORATE,
HELD THAT THE RECENTLY ADOPTED PLAN MET THE REQUIREMENTS OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND DISMISSED THE SUIT. 
HELD: 

1.  BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE MUST BE APPORTIONED
SUBSTANTIALLY ON A POPULATION BASIS.  REYNOLDS V. SIMS, ANTE, P. 533,
FOLLOWED.  P. 734. 

2.  THOUGH THIS COURT NEED NOT PASS UPON THE APPORTIONMENT OF THE
HOUSE, WHICH IS NOT CHALLENGED HERE, THE APPORTIONMENT OF THE SENATE
UNDER THE NEWLY ADOPTED SCHEME, WHICH IS NOT SEVERABLE FROM THE
APPORTIONMENT OF THE HOUSE, DEPARTS FROM POPULATION-BASED
REPRESENTATION TOO SUBSTANTIALLY TO BE PERMISSIBLE UNDER THE EQUAL
PROTECTION CLAUSE.  P. 735. 

3.  A POLITICAL REMEDY, SUCH AS THE INITIATIVE AND REFERENDUM, MAY
JUSTIFY AN EQUITY COURT IN DEFERRING ACTION TEMPORARILY ON AN
APPORTIONMENT PLAN TO ALLOW RECOURSE TO SUCH PROCEDURE; BUT SUCH A
REMEDY HAS NO CONSTITUTIONAL SIGNIFICANCE IF THE PLAN DOES NOT MEET
EQUAL PROTECTION REQUIREMENTS.   PP. 736-737. 

4.  THE DISPARITIES FROM POPULATION-BASED REPRESENTATION IN THE
ALLOCATION OF SENATE SEATS TO POPULOUS AREAS CANNOT BE JUSTIFIED AS
RATIONAL ON THE GROUND THAT GEOGRAPHICAL, HISTORICAL, AND OTHER FACTORS
WERE TAKEN INTO ACCOUNT.  P. 738. 

5.  THE "FEDERAL ANALOGY" RELIED UPON WITH REGARD TO THE SENATE
APPORTIONMENT PLAN IS WITHOUT FACTUAL OR LEGAL MERIT.  P. 738. 

6.  IT IS NOT APPROPRIATE FOR THIS COURT TO EXPRESS A VIEW ON THE
QUESTION OF REMEDIES, SINCE THE DISTRICT COURT, ACTING UNDER EQUITABLE
PRINCIPLES, MUST NOW DETERMINE WHETHER THE IMMINENCE OF 1964 ELECTIONS
REQUIRES UTILIZATION OF THE NEWLY ADOPTED APPORTIONMENT PLAN FOR
PURPOSES OF THOSE ELECTIONS OR WHETHER APPELLANTS' RIGHT TO CAST
ADEQUATELY WEIGHTED VOTES FOR STATE LEGISLATORS IN THOSE ELECTIONS CAN
PRACTICABLY BE EFFECTUATED.  P. 739. 

LUCAS ET AL. V. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

INVOLVED IN THIS CASE IS AN APPEAL FROM A DECISION OF THE FEDERAL
DISTRICT COURT FOR THE DISTRICT OF COLORADO UPHOLDING THE VALIDITY,
UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION, OF THE APPORTIONMENT OF SEATS IN THE COLORADO
LEGISLATURE PURSUANT TO THE PROVISIONS OF A CONSTITUTIONAL AMENDMENT
APPROVED BY THE COLORADO ELECTORATE IN 1962. 

                 I. 

APPELLANTS, VOTERS, TAXPAYERS AND RESIDENTS OF COUNTIES IN THE DENVER
METROPOLITAN AREA, FILED TWO SEPARATE ACTIONS, CONSOLIDATED FOR TRIAL
AND DISPOSITION, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, IN MARCH AND JULY 1962, CHALLENGING THE CONSTITUTIONALITY OF
THE APPORTIONMENT OF SEATS IN BOTH HOUSES OF THE COLORADO GENERAL
ASSEMBLY.  DEFENDANTS BELOW, SUED IN THEIR REPRESENTATIVE CAPACITIES,
INCLUDED VARIOUS OFFICIALS CHARGED WITH DUTIES IN CONNECTION WITH STATE
ELECTIONS.  PLAINTIFFS BELOW ASSERTED THAT ART. V, SECS.  45, 46, AND
47, OF THE COLORADO CONSTITUTION, AND THE STATUTES (FN1) IMPLEMENTING
THOSE CONSTITUTIONAL PROVISIONS, RESULT IN GROSS INEQUALITIES AND
DISPARITIES WITH RESPECT TO THEIR VOTING RIGHTS.  THEY ALLEGED THAT
"ONE OF THE INALIENABLE RIGHTS OF CITIZENSHIP  ...  IS EQUALITY OF
FRANCHISE AND VOTE, AND THAT THE CONCEPT OF EQUAL PROTECTION OF THE
LAWS REQUIRES THAT EVERY CITIZEN BE EQUALLY REPRESENTED IN THE
LEGISLATURE OF HIS STATE."  PLAINTIFFS SOUGHT DECLARATORY AND
INJUNCTIVE RELIEF, AND ALSO REQUESTED THE COURT TO ORDER A
CONSTITUTIONALLY VALID APPORTIONMENT PLAN INTO EFFECT FOR PURPOSES OF
THE 1962 ELECTION OF COLORADO LEGISLATORS.  PROPONENTS OF THE CURRENT
APPORTIONMENT SCHEME, WHICH WAS THEN TO BE VOTED UPON IN A NOVEMBER
1962 REFERENDUM AS PROPOSED AMENDMENT NO. 7 TO THE COLORADO
CONSTITUTION, WERE PERMITTED TO INTERVENE.  A THREE-JUDGE COURT WAS
PROMPTLY CONVENED. 

ON AUGUST 10, 1962, THE DISTRICT COURT ANNOUNCED ITS INITIAL
DECISION.  (FN2)  LISCO V. MCNICHOLS, 208 F. SUPP. 471.  AFTER HOLDING
THAT IT HAD JURISDICTION, THAT THE ISSUES PRESENTED WERE JUSTICIABLE,
AND THAT GROUNDS FOR ABSTENTION WERE LACKING, (FN3) THE COURT BELOW
STATED THAT THE POPULATION DISPARITIES AMONG VARIOUS LEGISLATIVE
DISTRICTS UNDER THE EXISTING APPORTIONMENT "ARE OF SUFFICIENT MAGNITUDE
TO MAKE OUT A PRIMA FACIE CASE OF INVIDIOUS DISCRIMINATION  ...  ." 
HOWEVER, BECAUSE OF THE IMMINENCE OF THE PRIMARY AND GENERAL ELECTIONS,
AND SINCE TWO CONSTITUTIONAL AMENDMENTS, PROPOSED THROUGH THE
INITIATIVE PROCEDURE AND PRESCRIBING RATHER DIFFERENT SCHEMES FOR
LEGISLATIVE APPORTIONMENT, WOULD BE VOTED UPON IN THE IMPENDING
ELECTION, THE DISTRICT COURT CONTINUED THE CASES WITHOUT FURTHER ACTION
UNTIL AFTER THE NOVEMBER 1962 ELECTION.  COLORADO LEGISLATORS WERE THUS
ELECTED IN 1962 PURSUANT TO THE PROVISIONS OF THE EXISTING
APPORTIONMENT SCHEME. 

AT THE NOVEMBER 1962 GENERAL ELECTION, THE COLORADO ELECTORATE
ADOPTED PROPOSED AMENDMENT NO. 7 BY A VOTE OF 305,700 TO 172,725, AND
DEFEATED PROPOSED AMENDMENT NO. 8 BY A VOTE OF 311,749 TO 149,822. 
AMENDMENT NO. 8, REJECTED BY A MAJORITY OF THE VOTERS, PRESCRIBED AN
APPORTIONMENT PLAN PURSUANT TO WHICH SEATS IN BOTH HOUSES OF THE
COLORADO LEGISLATURE WOULD PURPORTEDLY BE APPORTIONED ON A POPULATION
BASIS.  (FN4)  AMENDMENT NO. 7, ON THE OTHER HAND, PROVIDED FOR THE
APPORTIONMENT OF THE HOUSE OF REPRESENTATIVES ON THE BASIS OF
POPULATION, BUT ESSENTIALLY MAINTAINED THE EXISTING APPORTIONMENT IN
THE SENATE, WHICH WAS BASED ON A COMBINATION OF POPULATION AND VARIOUS
OTHER FACTORS. 

AFTER THE 1962 ELECTION THE PARTIES AMENDED THEIR PLEADINGS SO THAT
THE CASES INVOLVED SOLELY A CHALLENGE TO THE APPORTIONMENT SCHEME
ESTABLISHED IN THE NEWLY ADOPTED AMENDMENT NO. 7.  PLAINTIFFS BELOW
REQUESTED A DECLARATION THAT AMENDMENT NO. 7 WAS UNCONSTITUTIONAL UNDER
THE FOURTEENTH AMENDMENT SINCE RESULTING IN SUBSTANTIAL DISPARITIES
FROM POPULATION-BASED REPRESENTATION IN THE SENATE, AND ASKED FOR A
DECREE REAPPORTIONING BOTH HOUSES OF THE COLORADO LEGISLATURE ON A
POPULATION BASIS.  AFTER AN EXTENDED TRIAL, AT WHICH A VARIETY OF
STATISTICAL AND TESTIMONIAL EVIDENCE REGARDING LEGISLATIVE
APPORTIONMENT IN COLORADO, PAST AND PRESENT, WAS INTRODUCED, THE
DISTRICT COURT, ON JULY 16, 1963, ANNOUNCED ITS DECISION ON THE
MERITS.  LISCO V. LOVE, 219 F. SUPP. 922.  SPLITTING 2-TO-1, THE COURT
BELOW CONCLUDED THAT THE APPORTIONMENT SCHEME PRESCRIBED BY AMENDMENT
NO. 7 COMPORTED WITH THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE,
AND THUS DISMISSED THE CONSOLIDATED ACTIONS.  IN SUSTAINING THE
VALIDITY OF THE SENATORIAL APPORTIONMENT PROVIDED FOR IN AMENDMENT NO.
7, DESPITE DEVIATIONS FROM POPULATION-BASED REPRESENTATION, THE
DISTRICT COURT STATED THAT THE FOURTEENTH AMENDMENT DOES NOT REQUIRE
"EQUALITY OF POPULATION WITHIN REPRESENTATION DISTRICTS FOR EACH HOUSE
OF A BICAMERAL STATE LEGISLATURE."  FINDING THAT THE DISPARITIES FROM A
POPULATION BASIS IN THE APPORTIONMENT OF SENATE SEATS WERE BASED UPON
RATIONAL CONSIDERATIONS, THE COURT BELOW STATED THAT THE SENATORIAL
APPORTIONMENT UNDER AMENDMENT NO. 7 "RECOGNIZES POPULATION AS A PRIME,
BUT NOT CONTROLLING, FACTOR AND GIVES EFFECT TO SUCH IMPORTANT
CONSIDERATIONS AS GEOGRAPHY, COMPACTNESS AND CONTIGUITY OF TERRITORY,
ACCESSIBILITY, OBSERVANCE OF NATURAL BOUNDARIES, AND CONFORMITY TO
HISTORICAL DIVISIONS SUCH AS COUNTY LINES AND PRIOR REPRESENTATION
DISTRICTS  ...  ."  (FN5)  STRESSING ALSO THAT THE APPORTIONMENT PLAN
HAD BEEN RECENTLY ADOPTED BY POPULAR VOTE IN A STATEWIDE REFERENDUM,
THE COURT STATED: 

"PLAINTIFFS' ARGUMENT THAT THE APPORTIONMENT OF THE SENATE BY
AMENDMENT NO. 7 IS ARBITRARY, INVIDIOUSLY DISCRIMINATORY, AND WITHOUT
ANY RATIONALITY HAS BEEN ANSWERED BY THE VOTERS OF COLORADO ...  .  BY
ADOPTING AMENDMENT NO. 7 AND BY REJECTING AMENDMENT NO. 8, WHICH
PROPOSED TO APPORTION THE LEGISLATURE ON A PER CAPITA BASIS, THE
ELECTORATE HAS MADE ITS CHOICE BETWEEN THE CONFLICING PRINCIPLES." 
(FN6) 

CONCLUDING, THE DISTRICT COURT STATED: 

"WE BELIEVE THAT NO CONSTITUTIONAL QUESTION ARISES AS TO THE ACTUAL,
SUBSTANTIVE NATURE OF APPORTIONMENT IF THE POPULAR WILL HAS EXPRESSED
ITSELF  ...  .  IN COLORADO THE LIBERAL PROVISIONS FOR INITIATION OF
CONSTITUTIONAL AMENDMENTS PERMIT THE PEOPLE TO ACT - AND THEY HAVE DONE
SO.  IF THEY BECOME DISSATISFIED WITH WHAT THEY HAVE DONE, A WORKABLE
METHOD OF CHANGE IS AVAILABLE.  THE PEOPLE ARE FREE, WITHIN THE
FRAMEWORK OF THE FEDERAL CONSTITUTION, TO ESTABLISH THE GOVERNMENTAL
FORMS WHICH THEY DESIRE AND WHEN THEY HAVE ACTED THE COURTS SHOULD NOT
ENTER THE POLITICAL WARS TO DETERMINE THE RATIONALITY OF SUCH ACTION." 
(FN7) 

IN DISSENTING, DISTRICT JUDGE DOYLE STATED THAT HE REGARDED THE
SENATORIAL APPORTIONMENT UNDER AMENDMENT NO. 7 AS IRRATIONAL AND
INVIDIOUSLY DISCRIMINATORY, AND THAT THE CONSTITUTIONAL AMENDMENT HAD
NOT SUFFICIENTLY REMEDIED THE GROSS DISPARITIES PREVIOUSLY FOUND BY THE
DISTRICT COURT TO EXIST IN COLORADO'S PRIOR APPORTIONMENT SCHEME. 
INSTEAD, HE STATED, THE ADOPTED PLAN FREEZES SENATORIAL APPORTIONMENT
AND MERELY RETAINS THE FORMER SYSTEM WITH CERTAIN MINOR CHANGES. 
EQUALITY OF VOTING POWER IN BOTH HOUSES IS CONSTITUTIONALLY REQUIRED,
THE DISSENT STATED, SINCE THERE IS NO LOGICAL BASIS FOR DISTINGUISHING
BETWEEN THE TWO BODIES OF THE COLORADO LEGISLATURE.  IN REJECTING THE
APPLICABILITY OF THE SO-CALLED FEDERAL ANALOGY, JUDGE DOYLE RELIED ON
THIS COURT'S DECISION IN GRAY V. SANDERS, 372 U.S. 368.  HE CONCLUDED
THAT, ALTHOUGH ABSOLUTE EQUALITY IS A PRACTICAL IMPOSSIBILITY,
LEGISLATIVE DISTRICTING BASED SUBSTANTIALLY ON POPULATION IS
CONSTITUTIONALLY REQUIRED, AND THAT THE DISPARITIES IN THE
APPORTIONMENT OF SENATE SEATS UNDER AMENDMENT NO. 7'S PROVISIONS CANNOT
BE RATIONALIZED.  (FN8) 

NOTICE OF APPEAL FROM THE DISTRICT COURT'S DECISION WERE TIMELY
FILED, AND WE NOTED PROBABLE JURISDICTION ON DECEMBER 9, 1963.  375
U.S. 938. 

         II. 

WHEN THIS LITIGATION WAS COMMENCED, APPORTIONMENT OF SEATS IN THE
COLORADO GENERAL ASSEMBLY WAS BASED ON CERTAIN PROVISIONS OF THE STATE
CONSTITUTION AND STATUTORY PROVISIONS ENACTED TO IMPLEMENT THEM. 
ARTICLE V, SEC. 45, OF THE COLORADO CONSTITUTION PROVIDED THAT THE
LEGISLATURE "SHALL REVISE AND ADJUST THE APPORTIONMENT FOR SENATORS AND
REPRESENTATIVES  ...  ACCORDING TO RATIOS TO BE FIXED BY LAW," AT THE
SESSIONS FOLLOWING THE STATE ENUMERATION OF INHABITANTS IN 1885 AND
EVERY 10 YEARS THEREAFTER, AND FOLLOWING EACH DECENNIAL FEDERAL
CENSUS.  ARTICLE V, SEC. 46, AS AMENDED IN 1950, STATED THAT "THE
SENATE SHALL CONSIST OF NOT MORE THAN THIRTY-FIVE AND THE HOUSE OF NOT
MORE THAN SIXTY-FIVE MEMBERS."  ARTICLE V, SEC. 47, PROVIDED THAT: 

"SENATORIAL AND REPRESENTATIVE DISTRICTS MAY BE ALTERED FROM TIME TO
TIME, AS PUBLIC CONVENIENCE MAY REQUIRE.  WHEN A SENATORIAL OR
REPRESENTATIVE DISTRICT SHALL BE COMPOSED OF TWO OR MORE COUNTIES, THEY
SHALL BE CONTIGUOUS, AND THE DISTRICT AS COMPACT AS MAY BE.  NO COUNTY
SHALL BE DIVIDED IN THE FORMATION OF A SENATORIAL OR REPRESENTATIVE
DISTRICT." 

ARTICLE V, SEC. 3, PROVIDES THAT SENATORS SHALL BE ELECTED FOR FOUR
YEAR TERMS, STAGGERED SO THAT APPROXIMATELY ONE-HALF OF THE MEMBERS OF
THE SENATE ARE ELECTED EVERY TWO YEARS, AND THAT ALL REPRESENTATIVES
SHALL BE ELECTED FOR TWO-YEAR TERMS. 

PURSUANT TO THESE GENERAL CONSTITUTIONAL PROVISIONS, THE COLORADO
GENERAL ASSEMBLY HAS PERIODICALLY ENACTED DETAILED STATUTORY PROVISIONS
ESTABLISHING LEGISLATIVE DISTRICTS AND PRESCRIBING THE APPORTIONMENT TO
SUCH DISTRICTS OF SEATS IN BOTH HOUSES OF THE COLORADO LEGISLATURE. 
SINCE THE ADOPTION OF THE COLORADO CONSTITUTION IN 1876, THE GENERAL
ASSEMBLY HAS BEEN REAPPORTIONED OR REDISTRICTED IN THE FOLLOWING YEARS:
1881, 1891, 1901, 1909, 1913, 1932, 1953, AND, WITH THE ADOPTION OF
AMENDMENT NO. 7, IN 1962.  (FN9)  THE 1932 REAPPORTIONMENT WAS AN
INITIATED MEASURE, ADOPTED BECAUSE THE GENERAL ASSEMBLY HAD NEGLECTED
TO PERFORM ITS DUTY UNDER THE STATE CONSTITUTION.  IN 1933 THE
LEGISLATURE ATTEMPTED TO THWART THE INITIATED MEASURE BY ENACTING ITS
OWN LEGISLATIVE REAPPORTIONMENT STATUTE, BUT THE LATTER MEASURE WAS
HELD UNCONSTITUTIONAL BY THE COLORADO SUPREME COURT.  (FN10) 

THE 1953 APPORTIONMENT SCHEME, IMPLEMENTING THE EXISTING STATE
CONSTITUTIONAL PROVISIONS AND IN EFFECT IMMEDIATELY PRIOR TO THE
ADOPTION OF AMENDMENT NO. 7, WAS CONTAINED IN SEVERAL STATUTORY
PROVISIONS WHICH PROVIDED FOR A 35-MEMBER SENATE AND A 65-MEMBER HOUSE
OF REPRESENTATIVES.  SECTION 63-1-2 OF THE COLORADO REVISED STATUTES
ESTABLISHED CERTAIN POPULATION "RATIO" FIGURES FOR THE APPORTIONMENT OF
SENATE AND HOUSE SEATS AMONG THE STATE'S 63 COUNTIES.  ONE SENATE SEAT
WAS TO BE ALLOCATED TO EACH SENATORIAL DISTRICT FOR THE FIRST 19,000
POPULATION, WITH ONE ADDITIONAL SENATOR FOR EACH SENATORIAL DISTRICT
FOR EACH ADDITONAL 50,000 PERSONS OR FRACTION OVER 48,000.  ONE HOUSE
SEAT WAS TO BE GIVEN TO EACH REPRESENTATIVE DISTRICT FOR THE FIRST
8,000 POPULATION, WITH ONE ADDITIONAL REPRESENTATIVE FOR EACH HOUSE
DISTRICT FOR EACH ADDITIONAL 25,000 PERSONS OR FRACTION OVER 22,400. 
REPRESENTATIVE DISTRICTS, RESPECTIVELY, AND ALLOCATED THE 35 SENATE
SEATS AND 65 HOUSE SEATS AMONG THEM ACCORDING TO THE PRESCRIBED
POPULATION RATIOS.  NO COUNTIES WERE DIVIDED IN THE FORMATION OF
SENATORIAL OR REPRESENTATIVE DISTRICTS, IN COMPLIANCE WITH THE
CONSTITUTIONAL PROSCRIPTION.  THUS, SENATORS AND REPRESENTATIVES IN
THOSE COUNTIES ENTITLED TO MORE THAN ONE SEAT IN ONE OR BOTH BODIES
WERE ELECTED AT LARGE BY ALL OF THE COUNTY'S VOTERS.  THE CITY AND
COUNTY OF DENVER WAS GIVEN EIGHT SENATE SEATS AND 17 HOUSE SEATS, AND
PUEBLO COUNTY WAS ALLOCATED TWO SENATE SEATS AND FOUR HOUSE SEATS. 
OTHER POPULOUS COUNTIES WERE ALSO GIVEN MORE THAN ONE SENATE AND HOUSE
SEAT EACH.  CERTAIN COUNTIES WERE ENTITLED TO SEPARATE REPRESENTATION
IN EITHER OR BOTH OF THE HOUSES, AND WERE GIVEN ONE SEAT EACH. 
SPARSELY POPULATED COUNTIES WERE COMBINED IN MULTICOUNTY DISTRICTS. 

UNDER THE 1953 APPORTIONMENT SCHEME, APPLYING 1960 CENSUS FIGURES,
29.8% OF THE STATE'S TOTAL POPULATION LIVED IN DISTRICTS ELECTING A
MAJORITY OF THE MEMBERS OF THE SENATE, AND 32.1% RESIDED IN DISTRICTS
ELECTING A MAJORITY OF THE HOUSE MEMBERS.  MAXIMUM POPULATION-VARIANCE
RATIOS OF APPROXIMATELY 8-TO-1 EXISTED BETWEEN THE MOST POPULOUS AND
LEAST POPULOUS DISTRICTS IN BOTH THE SENATE AND THE HOUSE.  ON SENATOR
REPRESENTED A DISTRICT CONTAINING 127,520 PERSONS, WHILE ANOTHER
SENATOR HAD ONLY 17,481 PEOPLE IN HIS DISTRICT.  THE SMALLEST
REPRESENTATIVE 

DISTRICT HAD A POPULATION OF ONLY 7,867, WHILE ANOTHER DISTRICT WAS
GIVEN ONLY TWO HOUSE SEATS FOR A POPULATION OF 127,520.  IN DISCUSSING
THE 1953 LEGISLATIVE APPORTIONMENT SCHEME, THE DISTRICT COURT, IN ITS
INITIAL OPINION, STATED THAT "FACTUAL DATA PRESENTED AT THE TRIAL
REVEALS THE EXISTENCE OF GROSS AND GLARING DISPARITY IN VOTING STRENGTH
AS BETWEEN THE SEVERAL REPRESENTATIVE AND SENATORIAL DISTRICTS," AND
THAT "THE INEVITABLE EFFECT  ...  OF THE EXISTING APPORTIONMENT
PROVISIONS HAS BEEN TO DEVELOP SEVERE DISPARITIES IN VOTING STRENGTH
WITH THE GROWTH AND SHIFT OF POPULATION."  (FN11)    AMENDMENT NO. 7
PROVIDES FOR THE ESTABLISHMENT OF A GENERAL ASSEMBLY COMPOSED OF 39
SENATORS AND 65 REPRESENTATIVES, WITH THE STATE DIVIDED GEOGRAPHICALLY
INTO 39 SENATORIAL AND 65 REPRESENTATIVE DISTRICTS, SO THAT ALL SEATS
IN BOTH HOUSES ARE APPORTIONED AMONG SINGLE-MEMBER DISTRICTS.  (FN12)
RESPONSIBILITY FOR CREATING HOUSE DISTRICTS "AS NEARLY EQUAL IN
POPULATION AS MAY BE" IS GIVEN TO THE LEGISLATURE.  ALLOCATION OF
SENATORS AMONG THE COUNTIES FOLLOWS THE EXISTING SCHEME OF DISTRICTING
AND APPORTIONMENT, EXCEPT THAT ONE SPARSELY POPULATED COUNTY IS
DETACHED FROM POPULOUS ARAPAHOE COUNTY AND JOINED WITH FOUR OTHERS IN
FORMING A SENATORIAL DISTRICT, AND ONE ADDITIONAL SENATOR IS
APPORTIONED TO EACH OF THE COUNTIES OF ADAMS, ARAPAHOE, BOULDER AND
JEFFERSON.  WITHIN COUNTIES GIVEN MORE THAN ONE SENATE SEAT, SENATORIAL
DISTRICTS ARE TO BE ESTABLISHED BY THE LEGISLATURE "AS NEARLY EQUAL IN
POPULATION AS MAY BE."  (FN13)  AMENDMENT NO. 7 ALSO PROVIDES FOR A
REVISION OF REPRESENTATIVE DISTRICTS, AND OF SENATORIAL DISTRICTS
WITHIN COUNTIES GIVEN MORE THAN ONE SENATE SEAT, AFTER EACH FEDERAL
CENSUS, IN ORDER TO MAINTAIN CONFORMITY WITH THE PRESCRIBED
REQUIREMENTS.  (FN14)  PURSUANT TO THIS CONSTITUTIONAL MANDATE, THE
COLORADO LEGISLATURE, IN EARLY 1963, ENACTED A STATUTE ESTABLISHING 65
REPRESENTATIVE DISTRICTS AND CREATING SENATORIAL DISTRICTS IN COUNTIES
GIVEN MORE THAN ONE SENATE SEAT.  (FN15)  UNDER THE NEWLY ADOPTED HOUSE
APPORTIONMENT PLAN, DISTRICTS IN WHICH ABOUT 45.1% OF THE STATE'S TOTAL
POPULATION RESIDE ARE REPRESENTED BY A MAJORITY OF THE MEMBERS OF THAT
BODY.  THE MAXIMUM POPULATION-VARIANCE RATIO, BETWEEN THE MOST POPULOUS
AND LEAST POPULOUS HOUSE DISTRICTS, IS APPROXIMATELY 1.7-TO-1.  THE
COURT BELOW CONCLUDED THAT THE HOUSE WAS APPORTIONED AS NEARLY ON A
POPULATION BASIS AS WAS PRACTICABLE, CONSISTENT WITH AMENDMENT NO. 7'S
REQUIREMENT THAT "NO PART OF ONE COUNTY SHALL BE ADDED TO ANOTHER
COUNTY OR PART OF ANOTHER COUNTY" IN THE FORMATION OF A LEGISLATIVE
DISTRICT, AND DIRECTED ITS CONCERN SOLELY TO THE QUESTION OF WHETHER
THE DEVIATIONS FROM A POPULATION BASIS IN THE APPORTIONMENT OF SENATE
SEATS WERE RATIONALLY JUSTIFIABLE.  (FN16) 

SENATORIAL APPORTIONMENT, UNDER AMENDMENT NO. 7, INVOLVES LITTLE MORE
THAN ADDING FOUR NEW SENATE SEATS AND DISTRIBUTING THEM TO FOUR
POPULOUS COUNTIES IN THE DENVER AREA, AND IN SUBSTANCE PERPETUATES THE
EXISTING SENATORIAL APPORTIONMENT SCHEME.  (FN17)  COUNTIES CONTAINING
ONLY 33.2% OF THE STATE'S TOTAL POPULATION ELECT A MAJORITY OF THE 39
MEMBER SENATE UNDER THE PROVISIONS OF AMENDMENT NO. 7.  LAS ANIMAS
COUNTY, WITH A 1960 POPULATION OF ONLY 19,983, IS GIVEN ONE SENATE
SEAT, WHILE EL PASO COUNTY, WITH 143,742 PERSONS, IS ALLOTTED ONLY TWO
SENATE SEATS.  THUS, THE MAXIMUM POPULATION-VARIANCE RATIO, UNDER THE
REVISED SENATORIAL APPORTIONMENT, IS ABOUT 3.6-TO-1.  (FN18)  DENVER
AND THE THREE ADJACENT SUBURBAN COUNTIES CONTAIN ABOUT ONE-HALF OF THE
STATE'S TOTAL 1960 POPULATION OF 1,753,947, BUT ARE GIVEN ONLY 14 OUT
OF 39 SENATORS.  THE DENVER, PUEBLO, AND COLORADO SPRINGS METROPOLITAN
AREAS, CONTAINING 1,191,832 PERSONS, ABOUT 68%, OR OVER TWO-THIRDS OF
COLORADO'S POPULATION, ELECT ONLY 20 OF THE STATE'S 39 SENATORS, BARELY
A MAJORITY.  THE AVERAGE POPULATION OF DENVER'S EIGHT SENATORIAL
DISTRICTS, UNDER AMENDMENT NO. 7, IS 61,736, WHILE THE FIVE LEAST
POPULOUS DISTRICTS CONTAIN LESS THAN 22,000 PERSONS EACH.  DIVERGENCES
FROM POPULATION-BASED REPRESENTATION IN THE SENATE ARE GROWING
CONTINUALLY WIDER, SINCE THE UNDERREPRESENTED DISTRICTS IN THE DENVER,
PUEBLO, AND COLORADO SPRINGS METROPOLITAN AREAS ARE RAPIDLY GAINING IN
POPULATION, WHILE MANY OF THE OVERREPRESENTED RURAL DISTRICTS HAVE
TENDED TO DECLINE IN POPULATION CONTINUOUSLY IN RECENT YEARS.  (FN19)

                                            III. 

SEVERAL ASPECTS OF THIS CASE SERVE TO DISTINGUISH IT FROM THE OTHER
CASES INVOLVING STATE LEGISLATIVE APPORTIONMENT ALSO DECIDED THIS
DATE.  INITIALLY, ONE HOUSE OF THE COLORADO LEGISLATURE IS AT LEAST
ARGUABLY APPORTIONED SUBSTANTIALLY ON A POPULATION BASIS UNDER
AMENDMENT NO. 7 AND THE IMPLEMENTING STATUTORY PROVISIONS.  UNDER THE
APPORTIONMENT SCHEMES CHALLENGED IN THE OTHER CASES, ON THE OTHER HAND,
CLEARLY NEITHER OF THE HOUSES IN ANY OF THE STATE LEGISLATURES IS
APPORTIONED SUFFICIENTLY ON A POPULATION BASIS SO AS TO BE
CONSTITUTIONALLY SUSTAINABLE.  ADDITIONALLY, THE COLORADO SCHEME OF
LEGISLATIVE APPORTIONMENT HERE ATTACKED IS ONE ADOPTED BY A MAJORITY
VOTE OF THE COLORADO ELECTORATE ALMOST CONTEMPORANEOUSLY WITH THE
DISTRICT COURT'S DECISION ON THE MERITS IN THIS LITIGATION.  THUS, THE
PLAN AT ISSUE DID NOT RESULT FROM PROLONGED LEGISLATIVE INACTION. 
HOWEVER, THE COLORADO GENERAL ASSEMBLY, IN SPITE OF THE STATE
CONSTITUTIONAL MANDATE FOR PERIODIC REAPPORTIONMENT, HAS ENACTED ONLY
ONE EFFECTIVE LEGISLATIVE APPORTIONMENT MEASURE IN THE PAST 50 YEARS. 
(FN20) 

AS APPELLEES HAVE CORRECTLY POINTED OUT, A MAJORITY OF THE VOTERS IN
EVERY COUNTY OF THE STATE VOTED IN FAVOR OF THE APPORTIONMENT SCHEME
EMBODIED IN AMENDMENT NO. 7'S PROVISIONS, IN PREFERENCE TO THAT
CONTAINED IN PROPOSED AMENDMENT NO. 8, WHICH, SUBJECT TO MINOR
DEVIATIONS, WOULD HAVE BASED THE APPORTIONMENT OF SEATS IN BOTH HOUSES
ON A POPULATION BASIS.  HOWEVER, THE CHOICE PRESENTED TO THE COLORADO
ELECTORATE, IN VOTING ON THESE TWO PROPOSED CONSTITUTIONAL AMENDMENTS,
WAS HARDLY AS CLEAR-CUT AS THE COURT BELOW REGARDED IT.  ONE OF THE
MOST UNDESIRABLE FEATURES OF THE EXISTING APPORTIONMENT SCHEME WAS THE
REQUIREMENT THAT, IN COUNTIES GIVEN MORE THAN ONE SEAT IN EITHER OR
BOTH OF THE HOUSES OF THE GENERAL ASSEMBLY, ALL LEGISLATORS MUST BE
ELECTED AT LARGE FROM THE COUNTY AS A WHOLE.  THUS, UNDER THE EXISTING
PLAN, EACH DENVER VOTER WAS REQUIRED TO VOTE FOR EIGHT SENATORS AND 17
REPRESENTATIVES.  BALLOTS WERE LONG AND CUMBERSOME, AND AN INTELLIGENT
CHOICE AMONG CANDIDATES FOR SEATS IN THE LEGISLATURE WAS MADE QUITE
DIFFICULT.  NO IDENTIFIABLE CONSTITUENCIES WITHIN THE POPULOUS COUNTIES
RESULTED, AND THE RESIDENTS OF THOSE AREAS HAD NO SINGLE MEMBER OF THE
SENATE OR HOUSE ELECTED SPECIFICALLY TO REPRESENT THEM.  RATHER, EACH
LEGISLATOR ELECTED FROM A MULTIMEMBER COUNTY REPRESENTED THE COUNTY AS
A WHOLE.  (FN21)  AMENDMENT NO. 8, AS DISTINGUISHED FROM AMENDMENT NO.
7, WHILE PURPORTEDLY BASING THE APPORTIONMENT OF SEATS IN BOTH HOUSES
ON A POPULATION BASIS, WOULD HAVE PERPETUATED, FOR ALL PRACTICAL
PURPOSES, THIS DEBATABLE FEATURE OF THE EXISTING SCHEME.  UNDER
AMENDMENT NO. 8, SENATORS WERE TO BE ELECTED AT LARGE IN THOSE COUNTIES
GIVEN MORE THAN ONE SENATE SEAT, AND NO PROVISION WAS MADE FOR
SUBDISTRICTING WITHIN SUCH COUNTIES FOR THE PURPOSE OF ELECTING
SENATORS.  REPRESENTATIVES WERE ALSO TO BE ELECTED AT LARGE IN
MULTIMEMBER COUNTIES PURSUANT TO THE PROVISIONS OF AMENDMENT NO. 8, AT
LEAST INITIALLY, ALTHOUGH SUBDISTRICTING FOR THE PURPOSE OF ELECTING
HOUSE MEMBERS WAS PERMITTED IF THE VOTERS OF A MULTIMEMBER COUNTY
SPECIFICALLY APPROVED A REPRESENTATIVE SUBDISTRICTING PLAN FOR THAT
COUNTY.  THUS, NEITHER OF THE PROPOSED PLANS WAS, IN ALL PROBABILITY,
WHOLLY ACCEPTABLE TO THE VOTERS IN THE POPULOUS COUNTIES, AND THE
ASSUMPTION OF THE COURT BELOW THAT THE COLORADO VOTERS MADE A
DEFINITIVE CHOICE BETWEEN TWO CONTRASTING ALTERNATIVES AND INDICATED
THAT "MINORITY PROCESS IN THE SENATE IS WHAT THEY WANT" DOES NOT APPEAR
TO BE FACTUALLY JUSTIFIABLE. 

FINALLY, THIS CASE DIFFERS FROM THE OTHERS DECIDED THIS DATE IN THAT
THE INITIATIVE DEVICE PROVIDES A PRACTICABLE POLITICAL REMEDY TO OBTAIN
RELIEF AGAINST ALLEGED LEGISLATIVE MALAPPORTIONMENT IN COLORADO. 
(FN22)  AN INITIATED MEASURE PROPOSING A CONSTITUTIONAL AMENDMENT OR A
STATUTORY ENACTMENT IS ENTITLED TO BE PLACED ON THE BALLOT IF THE
SIGNATURES OF 8% OF THOSE VOTING FOR THE SECRETARY OF STATE IN THE LAST
ELECTION ARE OBTAINED.  NO GEOGRAPHICAL DISTRIBUTION OF PETITION
SIGNERS IS REQUIRED.  INITIATIVE AND REFERENDUM HAS BEEN FREQUENTLY
UTILIZED THROUGHOUT COLORADO'S HISTORY.  (FN23)  ADDITIONALLY, COLORADO
COURTS HAVE TRADITIONALLY NOT BEEN HESITANT ABOUT ADJUDICATING
CONTROVERSIES RELATING TO LEGISLATIVE APPORTIONMENT.  (FN24)  HOWEVER,
THE COLORADO SUPREME COURT, IN ITS 1962 DECISION DISCUSSED PREVIOUSLY
IN THIS OPINION, (FN25) REFUSED TO CONSIDER OR PASS UPON THE FEDERAL
CONSTITUTIONAL QUESTIONS, BUT INSTEAD HELD ONLY THAT THE COLORADO
GENERAL ASSEMBLY WAS NOT REQUIRED TO ENACT A REAPPORTIONMENT STATUTE
UNTIL THE FOLLOWING LEGISLATIVE SESSION.  (FN26)

                                      IV. 

IN REYNOLDS V. SIMS, ANTE, P. 533, DECIDED ALSO THIS DATE, WE HELD
THAT THE EQUAL PROTECTION CLAUSE REQUIRES THAT BOTH HOUSES OF A
BICAMERAL STATE LEGISLATURE MUST BE APPORTIONED SUBSTANTIALLY ON A
POPULATION BASIS.  OF COURSE, THE COURT BELOW ASSUMED, AND THE PARTIES
APPARENTLY CONCEDED, THAT THE COLORADO HOUSE OF REPRESENTATIVES, UNDER
THE STATUTORY PROVISIONS ENACTED BY THE COLORADO LEGISLATURE IN EARLY
1963 PURSUANT TO AMENDMENT NO. 7'S DICTATE THAT THE LEGISLATURE SHOULD
CREATE 65 HOUSE DISTRICTS "AS NEARLY EQUAL IN POPULATION AS MAY BE," IS
NOW APPORTIONED SUFFICIENTLY ON A POPULATION BASIS TO COMPORT WITH
FEDERAL CONSTITUTIONAL REQUISITES.  WE NEED NOT PASS ON THIS QUESTION,
SINCE THE APPORTIONMENT OF SENATE SEATS, UNDER AMENDMENT NO. 7, CLEARLY
INVOLVES DEPARTURES FROM POPULATION-BASED REPRESENTATION TOO EXTREME TO
BE CONSTITUTIONALLY PERMISSIBLE, AND THERE IS NO INDICATION THAT THE
APPORTIONMENT OF THE TWO HOUSES OF THE COLORADO GENERAL ASSEMBLY,
PURSUANT TO THE 1962 CONSTITUTIONAL AMENDMENT, IS SEVERABLE.  (FN27)
WE THEREFORE CONCLUDE THAT THE DISTRICT COURT ERRED IN HOLDING THE
LEGISLATIVE APPORTIONMENT PLAN EMBODIED IN AMENDMENT NO. 7 TO BE
CONSTITUTIONALLY VALID.  UNDER NEITHER AMENDMENT NO. 7'S PLAN, NOR, OF
COURSE, THE PREVIOUS STATUTORY SCHEME, IS THE OVERALL LEGISLATIVE
REPRESENTATION IN THE TWO HOUSES OF THE COLORADO LEGISLATURE
SUFFICIENTLY GROUNDED ON POPULATION TO BE CONSTITUTIONALLY SUSTAINABLE
UNDER THE EQUAL PROTECTION CLAUSE.  (FN28) 

EXCEPT AS AN INTERIM REMEDIAL PROCEDURE JUSTIFYING A COURT IN STAYING
ITS HAND TEMPORARILY, WE FIND NO SIGNIFICANCE IN THE FACT THAT A
NONJUDICIAL, POLITICAL REMEDY MAY BE AVAILABLE FOR THE EFFECTUATION OF
ASSERTED RIGHTS TO EQUAL REPRESENTATION IN A STATE LEGISLATURE.  COURTS
SIT TO ADJUDICATE CONTROVERSIES INVOLVING ALLEGED DENIALS OF
CONSTITUTIONAL RIGHTS.  WHILE A COURT SITTING AS A COURT OF EQUITY
MIGHT BE JUSTIFIED IN TEMPORARILY REFRAINING FROM THE ISSUANCE OF
INJUNCTIVE RELIEF IN AN APPORTIONMENT CASE IN ORDER TO ALLOW FOR RESORT
TO AN AVAILABLE POLITICAL REMEDY, SUCH AS INITIATIVE AND REFERENDUM,
INDIVIDUAL CONSTITUTIONAL RIGHTS CANNOT BE DEPRIVED, OR DENIED JUDICIAL
EFFECTUATION, BECAUSE OF THE EXISTENCE OF A NONJUDICIAL REMEDY THROUGH
WHICH RELIEF AGAINST THE ALLEGED MALAPPORTIONMENT, WHICH THE INDIVIDUAL
VOTERS SEEK, MIGHT BE ACHIEVED.  AN INDIVIDUAL'S CONSTITUTIONALLY
PROTECTED RIGHT TO CAST AN EQUALLY WEIGHTED VOTE CANNOT BE DENIED EVEN
BY A VOTE OF A MAJORITY OF A STATE'S ELECTORATE, IF THE APPORTIONMENT
SCHEME ADOPTED BY THE VOTERS FAILS TO MEASURE UP TO THE REQUIREMENTS OF
THE EQUAL PROTECTION CLAUSE.  MANIFESTLY, THE FACT THAT AN
APPORTIONMENT PLAN IS ADOPTED IN A POPULAR REFERENDUM IS INSUFFICIENT
TO SUSTAIN ITS CONSTITUTIONALITY OR TO INDUCE A COURT OF EQUITY TO
REFUSE TO ACT.  AS STATED BY THIS COURT IN WEST VIRGINIA STATE BD. OF
EDUC.  V. BARNETTE, 319 U.S. 624, 638, "ONE'S RIGHT TO LIFE, LIBERTY,
AND PROPERTY  ...  AND OTHER FUNDAMENTAL RIGHTS MAY NOT BE SUBMITTED TO
VOTE; THEY DEPEND ON THE OUTCOME OF NO ELECTIONS."  (FN29)  A CITIZEN'S
CONSTITUTIONAL RIGHTS CAN HARDLY BE INFRINGED SIMPLY BECAUSE A MAJORITY
OF THE PEOPLE CHOOSE THAT IT BE.  (FN30)  WE HOLD THAT THE FACT THAT A
CHALLENGED LEGISLATIVE APPORTIONMENT PLAN WAS APPROVED BY THE
ELECTORATE IS WITHOUT FEDERAL CONSTITUTIONAL SIGNIFICANCE, IF THE
SCHEME ADOPTED FAILS TO SATISFY THE BASIC REQUIREMENTS OF THE EQUAL
PROTECTION CLAUSE, AS DELINEATED IN OUR OPINION IN REYNOLDS V. SIMS. 
AND WE CONCLUDE THAT THE FACT THAT A PRACTICABLY AVAILABLE POLITICAL
REMEDY, SUCH AS INITIATIVE AND REFERENDUM, ESISTS UNDER STATE LAW
PROVIDES JUSTIFICATION ONLY FOR A COURT OF EQUITY TO STAY ITS HAND
TEMPORARILY WHILE RECOURSE TO SUCH A REMEDIAL DEVICE IS ATTEMPTED OR
WHILE PROPOSED INITIATED MEASURES RELATING TO LEGISLATIVE APPORTIONMENT
ARE PENDING AND WILL BE SUBMITTED TO THE STATE'S VOTERS AT THE NEXT
ELECTION. 

BECAUSE OF THE IMMINENCE OF THE NOVEMBER 1962 ELECTION, AND THE FACT
THAT TWO INITIATED PROPOSALS RELATING TO LEGISLATIVE APPORTIONMENT
WOULD BE VOTED ON BY THE STATE'S ELECTORATE AT THAT ELECTION, THE
DISTRICT COURT PROPERLY STAYED ITS HAND AND PERMITTED THE 1962 ELECTION
OF LEGISLATORS TO BE CONDUCTED PURSUANT TO THE EXISTING STATUTORY
SCHEME.  BUT APPELLEES' ARGUMENT, ACCEPTED BY THE COURT BELOW, THAT THE
APPORTIONMENT OF THE COLORADO SENATE, UNDER AMENDMENT NO. 7, IS
RATIONAL BECAUSE IT TAKES INTO ACCOUNT A VARIETY OF GEOGRAPHICAL,
HISTORICAL, TOPOGRAPHIC AND ECONOMIC CONSIDERATIONS FAILS TO PROVIDE AN
ADEQUATE JUSTIFICATION FOR THE SUBSTANTIAL DISPARITIES FROM POPULATION
BASED REPRESENTATION IN THE ALLOCATION OF SENATE SEATS TO THE
DISFAVORED POPULOUS AREAS.  (FN31)  AND ANY ATTEMPTED RELIANCE ON THE
SO-CALLED FEDERAL ANALOGY IS FACTUALLY AS WELL AS CONSTITUTIONALLY
WITHOUT MERIT.  (FN32) 

SINCE THE APPORTIONMENT OF SEATS IN THE COLORADO LEGISLATURE, UNDER
THE PROVISIONS OF AMENDMENT NO. 7, FAILS TO COMPORT WITH THE
REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE, THE DECISION BELOW MUST BE
REVERSED.  BEYOND WHAT WE SAID IN OUR OPINION IN REYNOLDS, (FN33) WE
EXPRESS NO VIEW ON QUESTIONS RELATING TO REMEDIES AT THE PRESENT TIME. 
ON REMAND, THE DISTRICT COURT MUST NOW DETERMINE WHETHER THE IMMINENCE
OF THE 1964 PRIMARY AND GENERAL ELECTIONS REQUIRES THAT UTILIZATION OF
THE APPORTIONMENT SCHEME CONTAINED IN THE CONSTITUTIONAL AMENDMENT BE
PERMITTED, FOR PURPOSES OF THOSE ELECTIONS, OR WHETHER THE
CIRCUMSTANCES IN COLORADO ARE SUCH THAT APPELLANTS' RIGHT TO CAST
ADEQUATELY WEIGHTED VOTES FOR MEMBERS OF THE STATE LEGISLATURE CAN
PRACTICABLY BE EFFECTUATED IN 1964.  ACCORDINGLY, WE REVERSE THE
DECISION OF THE COURT BELOW AND REMAND THE CASE FOR FURTHER PROCEEDINGS
CONSISTENT WITH THE VIEWS STATED HERE AND IN OUR OPINION IN REYNOLDS V.
SIMS.  IT IS SO ORDERED.    FN1  COLO. REV. STAT. 1953, C. 63, SECS. 63
1-1 - 63-1-6. 

FN2  THE DISTRICT COURT WISELY REFRAINED FROM ACTING AT ALL UNTIL A
CASE PENDING IN THE COLORADO SUPREME COURT WAS DECIDED WITHOUT THAT
COURT'S PASSING ON THE FEDERAL CONSTITUTIONAL QUESTIONS RELATING TO
COLORADO'S SCHEME OF LEGISLATIVE APPORTIONMENT WHICH WERE RAISED IN
THAT SUIT.  IN RE LEGISLATIVE REAPPORTIONMENT, 150 COLO. 380, 374 P.2D
66 (1962).  AFTER ACCEPTING JURISDICTION, THE COLORADO SUPREME COURT,
OVER A VIGOROUS DISSENT, IGNORED THE FEDERAL CONSTITUTIONAL ISSUES AND
INSTEAD DISCUSSED ONLY THE MATTER OF WHEN THE COLORADO LEGISLATURE WAS
REQUIRED, PURSUANT TO THE STATE CONSTITUTION, TO REAPPORTION SEATS IN
THE GENERAL ASSEMBLY.  THE COURT CONCLUDED THAT A REAPPORTIONMENT
MEASURE ENACTED DURING THE 1963 SESSION OF THE COLORADO LEGISLATURE, ON
THE BASIS OF 1960 CENSUS FIGURES, WOULD, IF NEITHER OF THE PROPOSED
CONSTITUTIONAL AMENDMENTS RELATING TO LEGISLATIVE APPORTIONMENT WAS
APPROVED BY THE VOTERS IN NOVEMBER 1962, BE IN SUFFICIENT COMPLIANCE
WITH THE CONSTITUTIONAL REQUIREMENT OF PERIODIC LEGISLATIVE
REAPPORTIONMENT.  SEE ALSO 208 F. SUPP., AT 474, DISCUSSING THE
COLORADO SUPREME COURT'S DECISION IN THAT CASE. 

FN3  IN ITS INITIAL OPINION, THE DISTRICT COURT PROPERLY CONCLUDED
THAT THE ARGUMENT THAT "THE COLORADO SUPREME COURT HAS PREEMPTED
JURISDICTION BY FIRST HEARING THE CONTROVERY, IS WITHOUT MERIT IN VIEW
OF THE FACT THAT THE SUPREME COURT OF COLORADO HAS REFRAINED FROM EVEN
CONSIDERING THE ISSUE OF INFRINGEMENT OF THE PLAINTIFFS' FEDERALLY
GUARANTEED CONSTITUTIONAL RIGHTS."  208 F. SUPP., AT 475.  CONTINUING,
THE COURT BELOW CORRECTLY HELD THAT, UNDER THE CIRCUMSTANCES, IT WAS
NOT REQUIRED TO ABSTAIN, AND STATED: 

"THE CONSIDERATIONS WHICH DEMAND ABSTINENCE ARE NOT PRESENT IN THE
INSTANT CASE.  HERE, THE GENERAL ASSEMBLY OF THE STATE OF COLORADO HAS
REPEATEDLY REFUSED TO PERFORM THE MANDATE IMPOSED BY THE COLORADO
CONSTITUTION TO APPORTION THE LEGISLATURE.  THE LIKELIHOOD THAT THE
UNAPPORTIONED GENERAL ASSEMBLY WILL EVER APPORTION ITSELF NOW APPEARS
REMOTE.  THE SUPREME COURT OF COLORADO, WHILE RETAINING JURISDICTION OF
THE SUBJECT MATTER OF THE CONTROVERSY PRESENTED TO IT, HAS POSTPONED
FURTHER CONSIDERATION OF THE CAUSE UNTIL JUNE, 1963.  UNDER THESE
CIRCUMSTANCES, WE MUST CONCLUDE THAT THE PARTIES DO NOT, AT LEAST AT
PRESENT, HAVE AN ADEQUATE SPEEDY AND COMPLETE REMEDY APART FROM THAT
ASSERTED IN THE CASE AT BAR AND THUS GROUNDS FOR ABSTENTION ARE AT THIS
TIME LACKING."  208 F. SUPP., AT 476.  SEE ALSO DAVIS V. MANN, ANTE,
PP. 690-691, DECIDED ALSO THIS DATE, WHERE WE DISCUSSED THE QUESTION OF
ABSTENTION BY A FEDERAL COURT IN A STATE LEGISLATIVE APPORTIONMENT
CONTROVERSY. 

FN4  AS STATED SUCCINCTLY BY THE DISTRICT COURT, IN ITS OPINION ON
THE MERITS. 

"THE DEFEATED AMENDMENT NO. 8 PROPOSED A THREE-MAN COMMISSION TO
APPORTION THE LEGISLATURE PERIODICALLY.  THE COMMISSION WAS TO HAVE THE
DUTY OF DELINEATING, REVISING AND ADJUSTING SENATORIAL AND
REPRESENTATIVE DISTRICTS.  ITS ACTIONS WERE TO BE REVIEWED BY THE
COLORADO SUPREME COURT.  THE DISTRICTING WAS TO BE ON A STRICT
POPULATION RATIO FOR BOTH THE SENATE AND THE HOUSE WITH LIMITED
PERMISSIBLE VARIATIONS THEREFROM."  219 F. SUPP., AT 925. 

ADDITIONALLY, UNDER PROPOSED AMENDMENT NO. 8, THE COMMISSION WOULD
DETERMINE A STRICT POPULATION RATIO FOR BOTH THE SENATE AND THE HOUSE
BY DIVIDING THE STATE'S TOTAL POPULATION, AS ASCERTAINED IN EACH
DECENNIAL FEDERAL CENSUS, BY THE NUMBER OF SEATS ASSIGNED TO THE SENATE
AND THE HOUSE, RESPECTIVELY.  NO LEGISLATIVE DISTRICT SHOULD CONTAIN A
POPULATION PER SENATOR OR REPRESENTATIVE OF 33-1/3% MORE OR LESS THAN
THE STRICT POPULATION RATIO, EXCEPT CERTAIN MOUNTAINOUS SENATORIAL
DISTRICTS OF MORE THAN 5,500 SQUARE MILES IN AREA, BUT NO SENATORIAL
DISTRICT WAS TO CONTAIN A POPULATION OF LESS THAN 50% OF THE STRICT
POPULATION RATIO.  SENATORIAL DISTRICTS SHOULD CONSIST OF ONE COUNTY OR
TWO OR MORE CONTIGUOUS COUNTIES, BUT NO COUNTY SHOULD BE DIVIDED IN THE
FORMATION OF A SENATORIAL DISTRICT.  REPRESENTATIVE DISTRICTS SHOULD
CONSIST OF ONE COUNTY OR TWO OR MORE CONTIGUOUS COUNTIES.  ANY COUNTY
APPORTIONED TWO OR MORE REPRESENTATIVES COULD BE DIVIDED INTO
REPRESENTATIVE SUBDISTRICTS, BUT ONLY AFTER A MAJORITY OF THE VOTERS IN
THE COUNTY HAD APPROVED, IN A GENERAL ELECTION, THE EXACT METHOD OF
SUBDIVISION AND THE SPECIFIC APPORTIONMENT OF REPRESENTATIVES AMONG THE
SUBDISTRICTS AND THE COUNTY AT LARGE.  A PROPOSAL TO DIVIDE A COUNTY
INTO SUBDISTRICTS COULD BE PLACED ON THE BALLOT ONLY BY INITIATIVE
PETITION IN ACCORDANCE WITH STATE LAW, AND ONLY AT THE GENERAL
ELECTIONS IN 1966 AND 1974, AND AT THE GENERAL ELECTIONS HELD EACH 10
YEARS THEREAFTER.  AMENDMENT NO. 8, LIKE AMENDMENT NO. 7, WOULD HAVE
REQUIRED IMPLEMENTING LEGISLATION AND WOULD NOT HAVE BECOME EFFECTIVE,
IF ADOPTED, UNTIL THE 1964 ELECTIONS. 

FN5  219 F. SUPP., AT 932. 

FN6  IBID.  CONTINUING, THE COURT BELOW STATED: 

"THE INITIATIVE GIVES THE PEOPLE OF A STATE NO POWER TO ADOPT A
CONSTITUTIONAL AMENDMENT WHICH VIOLATES THE FEDERAL CONSTITUTION. 
AMENDMENT NO. 7 IS NOT VALID JUST BECAUSE THE PEOPLE VOTED FOR IT  ...
.  BUT THE TRADITIONAL AND RECOGNIZED CRITERIA OF EQUAL PROTECTION  ...
ARE ARBITRARINESS, DISCRIMINATION, AND LACK OF RATIONALITY.  THE
ACTIONS OF THE ELECTORATE ARE MATERIAL TO THE APPLICATION OF THE
CRITERIA.  THE CONTENTION THAT THE VOTERS HAVE DISCRIMINATED AGAINST
THEMSELVES APPALLS RATHER THAN CONVINCES.  DIFFICULT AS IT MAY BE AT
TIMES TO UNDERSTAND MASS BEHAVIOR OF HUMAN BEINGS, A PROPER RECOGNITION
OF THE JUDICIAL FUNCTION PRECLUDES A COURT FROM HOLDING THAT THE FREE
CHOICE OF THE VOTERS BETWEEN TWO CONFLICTING THEORIES OF APPORTIONMENT
IS IRRATIONAL OR THE RESULT ARBITRARY. 

"THE ELECTORATE OF EVERY COUNTY FROM WHICH THE PLAINTIFFS COME
PREFERRED AMENDMENT NO. 7.  IN THE CIRCUMSTANCES IT IS DIFFICULT TO
COMPREHEND HOW THE PLAINTIFFS CAN SUE TO VINDICATE A PUBLIC RIGHT.  AT
THE MOST THEY PRESENT A POLITICAL ISSUE WHICH THEY LOST.  ON THE
QUESTIONS BEFORE US WE SHALL NOT SUBSTITUTE ANY VIEWS WHICH WE MAY HAVE
FOR THE DECISION OF THE ELECTORATE  ...  .  WE DECLINE TO ACT AS A
SUPERELECTORATE TO WEIGH THE RATIONALITY OF A METHOD OF LEGISLATIVE
APPORTIONMENT ADOPTED BY A DECISIVE VOTE OF THE PEOPLE."  ID., AT 932
933. 

AND, EARLIER IN ITS OPINION ON THE MERITS, THE DISTRICT COURT
STATED: 

"WITH FULL OPERATION OF THE ONE-MAN, ONE-VOTE PRINCIPLE, THE COLORADO
ELECTORATE BY AN OVERWHELMING MAJORITY APPROVED A CONSTITUTIONAL
AMENDMENT CREATING A SENATE, THE MEMBERSHIP OF WHICH IS NOT APPORTIONED
ON A STRICT POPULATION BASIS.  BY MAJORITY PROCESS THE VOTERS HAVE SAID
THAT MINORITY PROCESS IN THE SENATE IS WHAT THEY WANT.  A REJECTION OF
THEIR CHOICE IS A DENIAL OF THE WILL OF THE MAJORITY.  IF THE MAJORITY
BECOMES DISSATISFIED WITH THAT WHICH IT HAS CREATED, IT CAN MAKE A
CHANGE AT AN ELECTION IN WHICH EACH VOTE COUNTS THE SAME AS EVERY OTHER
VOTE."  ID., AT 926-927. 

FN7  ID., AT 933. 

FN8  ADDITIONALLY, JUDGE DOYLE CORRECTLY STATED THAT "A PROPERLY
APPORTIONED STATE LEGISLATIVE BODY MUST AT LEAST APPROXIMATE BY BONA
FIDE ATTEMPT THE CREATION OF DISTRICTS SUBSTANTIALLY RELATED TO
POPULATION."  219 F. SUPP., AT 941.  WITH RESPECT TO THE RELATIVELY
EASY AVAILABILITY OF THE INITIATIVE PROCEDURE IN COLORADO, THE DISSENT
PERCEPTIVELY POINTED OUT THAT "IT IS OF LITTLE CONSOLATION TO AN
INDIVIDUAL VOTER WHO IS BEING DEPRIVED OF HIS RIGHTS THAT HE CAN START
A POPULAR MOVEMENT TO CHANGE THE CONSTITUTION.  THIS POSSIBLE REMEDY IS
NOT MERELY QUESTIONABLE, IT IS FOR PRACTICAL PURPOSES IMPOSSIBLE." 
ID., AT 942.  JUDGE DOYLE REFERRED TO AMENDMENT NO. 7'S PROVISONS
RELATING TO SENATORIAL APPORTIONMENT AS "THE PRODUCT OF A MECHANICAL
AND ARBITRARY FREEZING ACCOMPLISHED BY ADOPTION, WITH SLIGHT
MODIFICATION, OF THE UNLAWFUL ALIGNMENTS WHICH HAD EXISTED IN THE
PREVIOUS STATUTE."  ID., AT 943.  DISCUSSING THE MAJORITY'S VIEW THAT
GEOGRAPHIC AND ECONOMIC CONSIDERATIONS WERE RELEVANT IN EXPLAINING THE
DISPARITIES FROM POPULATION-BASED SENATORIAL REPRESENTATION, HE
DISCERNINGLY STATED THAT GEOGRAPHIC AND AREA FACTORS CARRY "LITTLE
WEIGHT WHEN CONSIDERED IN THE LIGHT OF MODERN METHODS OF ELECTRONIC
COMMUNICATION, MODERN HIGHWAYS, AUTOMOBILES AND AIRPLANES," AND, WITH
REGARD TO ECONOMIC CONSIDERATIONS, THAT "ECONOMIC INTERESTS ARE
REMARKABLY WELL REPRESENTED WITHOUT SPECIAL REPRESENTATION," THAT "IT
IS DANGEROUS TO BUILD INTO A POLITICAL SYSTEM A FAVORED POSITION FOR A
SEGMENT OF THE POPULATION OF THE STATE," THAT "THERE EXISTS NO
PRACTICAL METHOD OF RIDDING OURSELVES OF THEM," AND THAT, "LONG AFTER
THE INSTITUTIONS PASS, THE BUILT-IN ADVANTAGE REMAINS EVEN THOUGH IT IS
AT LAST ONLY A VESTIGE OF THE DEAD PAST."  IBID. 

FN9  ADMITTEDLY, THE COLORADO LEGISLATURE HAS NEVER COMPLIED WITH THE
STATE CONSTITUTIONAL PROVISION REQUIRING THE CONDUCTING OF A DECENNIAL
STATE CENSUS IN 1885 AND EVERY 10 YEARS THEREAFTER, AND OF COURSE HAS
NEVER REAPPORTIONED SEATS IN THE LEGISLATURE BASED UPON SUCH A CENSUS. 
UNDER AMENDMENT NO. 7, SOLE RELIANCE IS PLACED ON THE FEDERAL CENSUS,
AND THERE IS NO LONGER ANY REQUIREMENT FOR THE CONDUCTING OF A
DECENNIAL STATE CENSUS. 

IN ITS INITIAL OPINION, THE DISTRICT COURT STATED THAT THERE HAD BEEN
ONLY A "MODICUM OF APPORTIONMENT, EITHER REAL OR PURPORTED," AS WELL AS
"SEVERAL ABORTIVE ATTEMPTS," SINCE COLORADO FIRST ACHIEVED STATEHOOD. 
HOWEVER, IN ITS LATER OPINION ON THE MERITS, THE COURT BELOW VIEWED THE
SITUATION RATHER DIFFERENTLY, AND STATED THAT "APPORTIONMENT OF THE
COLORADO LEGISLATURE HAS NOT REMAINED STATIC."  AS INDICATED BY THE
DISTRICT COURT, IN ADDITION TO THE REAPPORTIONMENTS WHICH WERE
EFFECTED, "IN 1954 THE VOTERS REJECTED A REFERRED APPORTIONMENT MEASURE
AND IN 1956 REJECTED AN INITIATED CONSTITUTIONAL AMENDMENT PROPOSING
THE REAPPORTIONMENT OF BOTH CHAMBERS OF THE LEGISLATURE ON A STRAIGHT
POPULATION BASIS."  219 F. SUPP., AT 930. 

FN10  ARMSTRONG V. MITTEN, 95 COLO. 425, 37 P.2D 757 (1934).  SEE
NOTE 24, INFRA. 

FN11  208 F. SUPP., AT 474, 475. 

FN12  AMENDMENT NO. 7 IS SET OUT AS APPENDIX A TO THE DISTRICT
COURT'S OPINION ON THE MERITS, 219 F. SUPP., AT 933-934, AND PROVIDES
FOR THE REPEAL OF THE EXISTING ART. V, SECS. 45, 46 AND 47, AND THE
ADOPTION OF "NEW SECTIONS 45, 46, 47 AND 48 OF ARTICLE V," WHICH ARE
SET OUT VERBATIM IN THE APPENDIX TO THIS OPINION. 

ADDITIONALLY, THE PROVISIONS OF PROPOSED AMENDMENT NO. 8, REJECTED BY
THE COLORADO ELECTORATE, ARE SET OUT AS APPENDIX B TO THE DISTRICT
COURT'S OPINION ON THE MERITS.  219 F. SUPP., AT 934-935.  SEE THE
DISCUSSION OF AMENDMENT NO. 8'S PROVISIONS IN NOTE 4, SUPRA. 

FN13  IN ADDITION TO ESTABLISHING HOUSE DISTRICTS, THE LEGISLATION
ENACTED BY THE COLORADO GENERAL ASSEMBLY IN EARLY 1963, IN
IMPLEMENTATION OF AMENDMENT NO. 7'S PROVISIONS, ALSO DIVIDED COUNTIES
APPORTIONED MORE THAN ONE SENATE SEAT INTO SINGLE-MEMBER DISTRICTS. 
AMENDMENT NO. 7, IN CONTRAST TO AMENDMENT NO. 8, EXPLICITLY PROVIDED
FOR DISTRICTING, WITH RESPECT TO BOTH SENATE AND HOUSE SEATS, IN
MULTIMEMBER COUNTIES.  THE REJECTED AMENDMENT, ON THE OTHER HAND, MADE
NO PROVISION AT ALL FOR DISTRICTING WITHIN COUNTIES GIVEN MORE THAN ONE
SENATE SEAT, AND ALLOWED SUBDISTRICTING OF HOUSE SEATS ONLY UPON
SPECIFIC APPROVAL OF SUCH A PLAN BY A COUNTY'S VOTERS.  THUS, AMENDMENT
NO. 8 WOULD AT LEAST IN PART HAVE PERPETUATED THE EXTREMELY
OBJECTIONABLE FEATURE OF THE EXISTING APPORTIONMENT SCHEME, UNDER WHICH
LEGISLATORS IN MULTIMEMBER COUNTIES WERE ELECTED AT LARGE FROM THE
COUNTY AS A WHOLE. 

FN14  AS STATED BY THE DISTRICT COURT, "MANDATORY PROVISIONS OF
AMENDMENT NO. 7 REQUIRE THE REVISION OF REPRESENTATIVE DISTRICTS AND OF
SENATORIAL DISTRICTS WITHIN COUNTIES APPORTIONED MORE THAN ONE SENATOR
AFTER EACH FEDERAL CENSUS."  219 F. SUPP., AT 925.  UNDER THE
PROVISIONS OF AMENDMENT NO. 7, EIGHT COUNTIES ARE GIVEN MORE THAN ONE
SENATE SEAT, AND 14 OF THE 39 SENATORIAL DISTRICTS ARE COMPRISED OF
MORE THAN ONE COUNTY. 

FN15  COLO. LAWS 1963, C. 143, PP. 520-532, REFERRED TO AS HOUSE BILL
NO. 65. 

FN16  AS STATED BY THE COURT BELOW, "THE COLORADO LEGISLATURE MET IN
JANUARY, 1963, AND PASSED A STATUTE, H.B. NO. 65, IMPLEMENTING
AMENDMENT NO. 7.  NO QUESTION IS RAISED CONCERNING THE IMPLEMENTING
LEGISLATION."  219 F. SUPP., AT 924-925.  AGAIN THE DISTRICT COURT
STATED: "THE CASES NOW BEFORE THE COURT DO NOT PRESENT THE ISSUES AS
THEY EXISTED PRIOR TO THE APPORTIONMENT MADE BY AMENDMENT NO. 7  ...  .
THE THEN-EXISTING DISPARITIES IN EACH CHAMBER WERE SEVERE, THE
DEFENDANTS PRESENTED NO EVIDENCE TO SUSTAIN THE RATIONALITY OF THE
APPORTIONMENT OF THE SENATE, RECOGNIZED THE MALAPPORTIONMENT OF THE
HOUSE.  THE CHANGE BY AMENDMENT NO. 7 WAS SUCH AS TO REQUIRE A TRIAL DE
NOVO AND WE ARE CONCERNED WITH THE FACTS AS FINALLY PRESENTED."  ID.,
AT 928. 

FN17  APPENDIX C TO THE DISTRICT COURT'S OPINION ON THE MERITS
CONTAINS A CHART OF THE SENATORIAL DISTRICTS CREATED UNDER AMENDMENT
NO. 7'S PROVISIONS, SHOWING THE POPULATION OF AND THE COUNTIES INCLUDED
IN EACH.  219 F. SUPP., AT 935-938.    FN18  INCLUDED AS APPENDIX D TO
THE DISTRICT COURT'S OPINION ON THE MERITS IS A CHART SHOWING THE
RATIOS OF POPULATION PER SENATOR IN EACH DISTRICT TO THE POPULATION OF
THE LEAST POPULOUS SENATORIAL DISTRICT, AS ESTABLISHED BY AMENDMENT NO.
7 AND THE IMPLEMENTING STATUTORY PROVISIONS DIVIDING COUNTIES GIVEN
MORE THAN ONE SENATE SEAT INTO SEPARATE SENATORIAL DISTRICTS.  219 F.
SUPP., AT 939. 

FN19  APPELLANTS HAVE REPEATEDLY ASSERTED THAT EQUALITY OF POPULATION
AMONG DISTRICTS HAS BEEN THE TRADITIONAL BASIS OF LEGISLATIVE
APPORTIONMENT IN BOTH HOUSES OF THE COLORADO GENERAL ASSEMBLY.  THEY
POINTED OUT THAT BOTH HOUSES OF THE TERRITORIAL LEGISLATURE ESTABLISHED
BY CONGRESS IN THE ORGANIC ACT CREATING THE TERRITORY OF COLORADO IN
1861 WERE EXPRESSLY REQUIRED TO BE APPORTIONED ON A POPULATION BASIS. 
AND, THEY CONTENDED, THE LEGISLATIVE DISTRICTS ESTABLISHED FOR THE
APPORTIONMENT OF THE 26 SENATE AND 49 HOUSE SEATS IN THE FIRST GENERAL
ASSEMBLY AFTER COLORADO BECAME A STATE WERE VIRTUALLY ALL SUBSTANTIALLY
EQUAL IN POPULATION.  REFERRING TO THE LANGUAGE OF THE COLORADO SUPREME
COURT IN ARMSTRONG V. MITTEN, 95 COLO. 425, 37 P.2D 757 (1934), THEY
URGED THAT NO BASIS OTHER THAN POPULATION HAS EVER BEEN RECOGNIZED FOR
APPORTIONING REPRESENTATION IN EITHER HOUSE OF THE COLORADO
LEGISLATURE.  APPELLEES, ON THE OTHER HAND, HAVE CONSISTENTLY CONTENDED
THAT POPULATION "RATIO" FIGURES HAVE BEEN USED IN APPORTIONING SEATS IN
BOTH HOUSES SINCE 1881, REQUIRING PROPORTIONATELY MORE POPULATION TO
OBTAIN ADDITIONAL LEGISLATIVE REPRESENTATION.  SINCE THE COLORADO
SUPREME COURT'S STATEMENTS IN ARMSTRONG REGARDING POPULATION AS THE
BASIS OF LEGISLATIVE REPRESENTATION PLAINLY ASSUMED THE EXISTENCE OF AN
UNDERLYING POPULATION RATIO SCHEME, ITS LANGUAGE CAN HARDLY BE READ OUT
OF CONTEXT TO SUPPORT THE PROPOSITION THAT ABSOLUTE EQUALITY OF
POPULATION AMONG DISTRICTS HAS BEEN THE HISTORICAL BASIS OF LEGISLATIVE
APPORTIONMENT IN COLORADO.  FOR A SHORT DISCUSSION OF LEGISLATIVE
APPORTIONMENT IN COLORADO, INCLUDING THE ADOPTION OF AMENDMENT NO. 7
AND THE INSTANT LITIGATION, SEE NOTE, 35 U. OF COLO. L. REV. 431
(1963). 

FN20  IN 1953 THE COLORADO GENERAL ASSEMBLY ENACTED THE LEGISLATIVE
APPORTIONMENT SCHEME IN EFFECT WHEN THIS LITIGATION WAS COMMENCED. 
PRIOR TO 1953, THE LAST EFFECTIVE APPORTIONMENT OF LEGISLATIVE
REPRESENTATION BY THE GENERAL ASSEMBLY ITSELF WAS ACCOMPLISHED IN
1913.  THE 1932 MEASURE WAS AN INITIATED ACT, ADOPTED BY A VOTE OF THE
COLORADO ELECTORATE.  ALTHOUGH THE LEGISLATURE ENACTED A STATUTORY PLAN
IN 1933, IN AN ATTEMPT TO NULLIFY THE EFFECT OF THE 1932 INITIATED ACT,
THAT MEASURE WAS HELD INVALID AND UNCONSTITUTIONAL, AS A MATTER OF
STATE LAW, BY THE COLORADO SUPREME COURT.  SEE NOTE 24, INFRA.  AND THE
1962 ADOPTION OF THE APPORTIONMENT SCHEME CONTAINED IN PROPOSED
CONSTITUTIONAL AMENDMENT NO. 7 RESULTED, OF COURSE, NOT FROM
LEGISLATIVE ACTION, BUT FROM A VOTE OF THE COLORADO ELECTORATE
APPROVING THE INITIATED MEASURE.  THE 1963 STATUTORY PROVISIONS WERE
ENACTED BY THE GENERAL ASSEMBLY SIMPLY IN ORDER TO COMPLY WITH
AMENDMENT NO. 7'S MANDATE FOR LEGISLATIVE IMPLEMENTATION. 

FN21  WE DO NOT INTIMATE THAT APPORTIONMENT SCHEMES WHICH PROVIDE FOR
THE AT-LARGE ELECTION OF A NUMBER OF LEGISLATORS FROM A COUNTY, OR ANY
POLITICAL SUBDIVISION, ARE CONSTITUTIONALLY DEFECTIVE.  RATHER, WE
MERELY POINT OUT THAT THERE ARE CERTAIN ASPECTS OF ELECTING LEGISLATORS
AT LARGE FROM A COUNTY AS A WHOLE THAT MIGHT WELL MAKE THE ADOPTION OF
SUCH A SCHEME UNDESIRABLE TO MANY VOTERS RESIDING IN MULTIMEMBER
COUNTIES. 

FN22  ARTICLE V, SEC. 1, OF THE COLORADO CONSTITUTION PROVIDES THAT
"THE PEOPLE RESERVE TO THEMSELVES THE POWER TO PROPOSE LAWS AND
AMENDMENTS TO THE CONSTITUTION AND TO ENACT OR REJECT THE SAME AT THE
POLLS INDEPENDENT OF THE GENERAL ASSEMBLY  ...  ," AND FURTHER
ESTABLISHES THE SPECIFIC PROCEDURES FOR INITIATING PROPOSED
CONSTITUTIONAL AMENDMENTS OR LEGISLATION. 

TWENTY-ONE STATES MAKE SOME PROVISION FOR POPULAR INITIATIVE. 
FOURTEEN STATES PROVIDE FOR THE AMENDMENT OF STATE CONSTITUTIONAL
PROVISIONS THROUGH THE PROCESS OF INITIATIVE AND REFERENDUM.  SEE THE
BOOK OF THE STATES 1962-1963, 14.  SEVEN STATES ALLOW THE USE OF
POPULAR INITIATIVE FOR THE PASSAGE OF LEGISLATION BUT NOT
CONSTITUTIONAL AMENDMENTS.  BOTH TYPES OF INITIATIVE AND REFERENDUM
MAY, OF COURSE, BE RELEVANT TO LEGISLATIVE REAPPORTIONMENT.  SEE REPORT
OF ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, APPORTIONMENT OF
STATE LEGISLATURES 57 (1962).  IN SOME STATES THE INITIATIVE PROCESS IS
INEFFECTIVE AND CUMBERSOME, WHILE IN OTHERS, SUCH AS COLORADO, IT IS A
PRACTICABLE AND FREQUENTLY UTILIZED DEVICE. 

IN ADDITION TO THE INITIATIVE DEVICE, ART. V, SEC. 1, OF THE COLORADO
CONSTITUTION PROVIDES THAT, UPON THE TIMELY FILING OF A PETITION SIGNED
BY 5% OF THE STATE'S VOTERS OR AT THE INSTANCE OF THE LEGISLATURE, THE
COLORADO ELECTORATE RESERVES THE POWER OF VOTING UPON LEGISLATIVE
ENACTMENTS IN A STATEWIDE REFERENDUM AT THE NEXT GENERAL ELECTION. 

FN23  AMENDMENT OF THE COLORADO CONSTITUTION CAN BE ACCOMPLISHED, IN
ADDITION TO RESORT TO THE INITIATIVE AND REFERENDUM DEVICE, THROUGH A
MAJORITY VOTE OF THE ELECTORATE ON AN AMENDMENT PROPOSED BY THE GENERAL
ASSEMBLY FOLLOWING A FAVORABLE VOTE THEREON "BY TWO-THIRDS OF ALL THE
MEMBERS ELECTED TO EACH HOUSE" OF THE COLORADO LEGISLATURE, PURSUANT TO
ART. XIX, SEC. 2, OF THE COLORADO CONSTITUTION.  ADDITIONALLY, A
CONSTITUTIONAL CONVENTION CAN BE CONVENED, UPON THE FAVORABLE
RECOMMENDATION OF TWO-THIRDS OF THE MEMBERS ELECTED TO EACH HOUSE OF
THE GENERAL ASSEMBLY, IF THE ELECTORATE APPROVES OF THE CALLING OF SUCH
A CONVENTION TO "REVISE, ALTER AND AMEND" THE STATE CONSTITUTION, UNDER
ART. XIX, SEC. 1, OF THE COLORADO CONSTITUTION.  PURSUANT TO ART. XIX,
SEC. 1, "THE NUMBER OF MEMBERS OF THE CONVENTION SHALL BE TWICE THAT OF
THE SENATE AND THEY SHALL BE ELECTED IN THE SAME MANNER, AT THE SAME
PLACES, AND IN THE SAME DISTRICTS." 

FN24  SEE ARMSTRONG V. MITTEN, 95 COLO. 425, 37 P.2D 757 (1934),
WHERE THE COLORADO SUPREME COURT HELD THAT A 1933 STATUTE, ENACTED BY
THE LEGISLATURE TO EFFECTIVELY NULLIFY THE 1932 INITIATED ACT
REAPPORTIONING LEGISLATIVE REPRESENTATION, WAS VOID UNDER THE STATE
CONSTITUTIONAL PROVISIONS.  IN FINDING THE LEGISLATIVE MEASURE INVALID,
THE COLORADO COURT STATED THAT "REDISTRICTING MUST BE DONE WITH DUE
REGARD TO THE REQUIREMENT THAT REPRESENTATION IN THE GENERAL ASSEMBLY
SHALL BE BASED UPON POPULATION."  AND THAT "THE LEGISLATIVE ACT IN
QUESTION IS VOID BECAUSE IT VIOLATES SECTION 45 OF ARTICLE 5 OF THE
CONSTITUTION, WHICH REQUIRES THE REAPPORTIONMENT TO BE MADE ON THE
BASIS OF POPULATION, AS DISCLOSED BY THE CENSUS, AND ACCORDING TO
RATIOS TO BE FIXED BY LAW."  STATING THAT "IT IS CLEAR THAT RATIOS,
AFTER HAVING BEEN FIXED UNDER SECTION 45,  ...  CANNOT BE CHANGED UNTIL
AFTER THE NEXT CENSUS," THE COLORADO SUPREME COURT CONCLUDED THAT "THE
LEGISLATIVE ACT ATTEMPTS TO CONFER UPON SOME DISTRICTS A REPRESENTATION
THAT IS GREATER, AND UPON OTHER A REPRESENTATION THAT IS LESS, THAN
THEY ARE ENTITLED TO UNDER THE CONSTITUTION."  ID., AT 428, 37 P.2D, AT
758. 

FN25  SEE NOTE 2, SUPRA. 

FN26  IN RE LEGISLATIVE REAPPORTIONMENT, 150 COLO. 380, 374 P.2D 66
(1962).  EVEN SO, THE COLORADO COURT STATED THAT "IT IS ABUNDANTLY
CLEAR THAT THIS COURT HAS JURISDICTION  ...  ."  ID., AT 385, 374 P.2D,
AT 69.  SEE NOTE 2, SUPRA. 

FN27  SEE MARYLAND COMMITTEE FOR FAIR REPRESENTATION V. TAWES, ANTE,
P. 673, DECIDED ALSO THIS DATE, WHERE WE DISCUSSED THE NEED FOR
CONSIDERING THE APPORTIONMENT OF SEATS IN BOTH HOUSES OF A BICAMERAL
STATE LEGISLATURE IN EVALUATING THE CONSTITUTIONALITY OF A STATE
LEGISLATIVE APPORTIONMENT SCHEME, REGARDLESS OF WHAT MATTERS WERE
RAISED BY THE PARTIES AND DECIDED BY THE COURT BELOW.  CONSISTENT WITH
THIS APPROACH, IN DETERMINING WHETHER A GOOD FAITH EFFORT TO ESTABLISH
DISTRICTS SUBSTANTIALLY EQUAL IN POPULATION HAS BEEN MADE, A COURT MUST
NECESSARILY CONSIDER A STATE'S LEGISLATIVE APPORTIONMENT SCHEME AS A
WHOLE.  ONLY AFTER AN EVALUATION OF AN APPORTIONMENT PLAN IN ITS
TOTALITY CAN A COURT DETERMINE WHETHER THERE HAS BEEN SUFFICIENT
COMPLIANCE WITH THE REQUISITES OF THE EQUAL PROTECTION CLAUSE. 
DEVIATIONS FROM A STRICT POPULATION BASIS, SO LONG AS RATIONALLY
JUSTIFIABLE, MAY BE UTILIZED TO BALANCE A SLIGHT OVERREPRESENTATION OF
A PARTICULAR AREA IN ONE HOUSE WITH A MINOR UNDERREPRESENTATION OF THAT
AREA IN THE OTHER HOUSE.  BUT, ON THE OTHER HAND, DISPARITIES FROM
POPULATION-BASED REPRESENTATION, THOUGH MINOR, MAY BE CUMULATIVE
INSTEAD OF OFFSETTING WHERE THE SAME AREAS ARE DISADVANTAGED IN BOTH
HOUSES OF A STATE LEGISLATURE, AND MAY THEREFORE RENDER THE
APPORTIONMENT SCHEME AT LEAST CONSTITUTIONALLY SUSPECT.  OF COURSE, THE
COURT BELOW CAN PROPERLY TAKE INTO CONSIDERATION THE PRESENT
APPORTIONMENT OF SEATS IN THE HOUSE IN DETERMINING WHAT STEPS MUST BE
TAKEN IN ORDER TO ACHIEVE A PLAN OF LEGISLATIVE APPORTIONMENT IN
COLORADO THAT SUFFICIENTLY COMPORTS WITH FEDERAL CONSTITUTIONAL
REQUIREMENTS. 

FN28  SEE REYNOLDS V. SIMS, ANTE, P. 576, WHERE WE DISCUSSED SOME OF
THE UNDERLYING REASONS FOR OUR CONCLUSION THAT THE EQUAL PROTECTION
CLAUSE REQUIRES THAT SEATS IN BOTH HOUSES OF A STATE LEGISLATURE MUST
BE APPORTIONED SUBSTANTIALLY ON A POPULATION BASIS IN ORDER TO COMPORT
WITH FEDERAL CONSTITUTIONAL REQUISITES. 

FN29  AND, AS STATED BY THE COURT IN HALL V. ST. HELENA PARISH SCHOOL
BD., 197 F. SUPP. 649, 659 (D.C.E.D. LA. 1961), AFF'D, 368 U.S. 515,
"NO PLEBISCITE CAN LEGALIZE AN UNJUST DISCRIMINATION. 

FN30  IN REFUTING THE MAJORITY'S RELIANCE ON THE FACT THAT AMENDMENT
NO. 7 HAD BEEN ADOPTED BY A VOTE OF THE COLORADO ELECTORATE, JUDGE
DOYLE, IN DISSENTING BELOW, STATED: 

"THE PROTECTION OF CONSTITUTIONAL RIGHTS IS NOT BE BE APPROACHED
EITHER PRAGMATICALLY OR EXPEDIENTLY, AND THOUGH THE FACT OF ENACTMENT
OF A CONSTITUTIONAL PROVISION BY HEAVY VOTE OF THE ELECTORATE PRODUCES
PAUSE AND GENERATES RESTRAINT WE CAN NOT, TRUE TO OUR OATH, UPHOLD SUCH
LEGISLATION IN THE FACE OF PALPABLE INFRINGEMENT OF RIGHTS.  THUS,
STATE RACIAL LEGISLATION WOULD UNQUESTIONABLY ENJOY OVERWHELMING
ELECTORATE APPROVAL IN CERTAIN OF OUR STATES, YET NO ONE WOULD ARGUE
THAT THIS FACTOR COULD COMPENSATE FOR MANIFEST INEQUALITY.  IT IS TOO
CLEAR FOR ARGUMENT THAT CONSTITUTIONAL LAW IS NOT A MATTER OF MAJORITY
VOTE.  INDEED, THE ENTIRE PHILOSOPHY OF THE FOURTEENTH AMENDMENT
TEACHES THAT IT IS PERSONAL RIGHTS WHICH ARE TO BE PROTECTED AGAINST
THE WILL OF THE MAJORITY.  THE RIGHTS WHICH ARE HERE ASSERTED ARE THE
RIGHTS OF THE INDIVIDUAL PLAINTIFFS TO HAVE THEIR VOTES COUNTED EQUALLY
WITH THOSE OF OTHER VOTERS  ...  .  TO SAY THAT A MAJORITY OF THE
VOTERS TODAY INDICATE A DESIRE TO BE GOVERNED BY A MINORITY, IS TO
AVOID THE ISSUE WHICH THIS COURT IS ASKED TO RESOLVE.  IT IS NO ANSWER
TO SAY THAT THE APPROVAL OF THE POLLING PLACE NECESSARILY EVIDENCES A
RATIONAL PLAN.  THE PLAINTIFFS HAVE A RIGHT TO EXPECT THAT THE CAUSE
WILL BE DETERMINED IN RELATION TO THE STANDARDS OF EQUAL PROTECTION. 
UTILIZATION OF OTHER OR DIFFERENT STANDARDS DENIES THEM FULL MEASURE OF
JUSTICE."  219 F. SUPP., AT 944. 

FN31  IN ITS OPINION ON THE MERITS, THE DISTRICT COURT STATED:  "BY
THE ADMISSION OF STATES INTO THE UNION WITH CONSTITUTIONS CREATING
BICAMERAL LEGISLATURES, MEMBERSHIP TO WHICH IS NOT APPORTIONED ON A
POPULATION BASIS, CONGRESS HAS REJECTED THE PRINCIPLE OF EQUAL
REPRESENTATION AS A CONSTITUTIONAL REQUIREMENT."  219 F. SUPP., AT 927
928.  FOR THE REASONS STATED IN OUR OPINION IN REYNOLDS V. SIMS, ANTE,
P. 582, WE FIND THIS ARGUMENT UNPERSUASIVE AS A JUSTIFICATION FOR THE
DEVIATIONS FROM POPULATION IN THE APPORTIONMENT OF SEATS IN THE
COLORADO SENATE UNDER THE PROVISIONS OF AMENDMENT NO. 7.  ALSO, THE
COURT BELOW STATED THAT THE DISPARITIES FROM POPULATION-BASED
SENATORIAL REPRESENTATION WERE NECESSARY IN ORDER TO PROTECT "INSULAR
MINORITIES" AND TO ACCORD RECOGNITION TO "THE STATE'S HETEROGENEOUS
CHARACTERISTICS."  SUCH RATIONALES ARE, OF COURSE, INSUFFICIENT TO
JUSTIFY THE SUBSTANTIAL DEVIATIONS FROM POPULATION IN THE APPORTIONMENT
OF SEATS IN THE COLORADO SENATE UNDER AMENDMENT NO. 7, UNDER THE VIEWS
STATED IN OUR OPINION IN REYNOLDS. 

FN32  SEE REYNOLDS V. SIMS, ANTE, PP. 571-576, DISCUSSING AND
REJECTING THE APPLICABILITY OF THE SO-CALLED FEDERAL ANALOGY TO STATE
LEGISLATIVE APPORTIONMENT MATTERS.  AS STATED IN THE DISSENT BELOW, "IT
WOULD APPEAR THAT THERE IS NO LOGICAL BASIS FOR DISTINGUISHING BETWEEN
THE LOWER AND THE UPPER HOUSE - THAT THE EQUAL PROTECTION CLAUSE
APPLIES TO BOTH SINCE NO VALID ANALOGY CAN BE DRAWN BETWEEN THE UNITED
STATES CONGRESS" AND STATE LEGISLATURES.  219 F. SUPP., AT 940-941. 
ADDITIONALLY, THE APPORTIONMENT SCHEME EMBODIED IN THE PROVISIONS OF
AMENDMENT NO. 7 DIFFERS SIGNIFICANTLY FROM THE PLAN FOR ALLOCATING
CONGRESSIONAL REPRESENTATION AMONG THE STATES.  ALTHOUGH THE COLORADO
HOUSE OF REPRESENTATIVES IS ARGUABLY APPORTIONED ON A POPULATION BASIS,
AND THEREFORE RESEMBLES THE FEDERAL HOUSE, SENATORIAL SEATS ARE NOT
APPORTIONED TO COUNTIES OR POLITICAL SUBDIVISIONS IN A MANNER THAT AT
ALL COMPARES WITH THE ALLOCATION OF TWO SEATS IN THE FEDERAL SENATE TO
EACH STATE. 

FN33 SEE REYNOLDS V. SIMS, ANTE, P. 585. 

                          APPENDIX TO OPINION OF THE COURT. 

AMENDMENT NO. 7, APPROVED BY A VOTE OF THE COLORADO ELECTORATE IN
NOVEMBER 1962, APPEARS IN COLO. LAWS 1963, C. 312, P. 1045 ET SEQ.,
AND, IN RELEVANT PART, PROVIDES AS FOLLOWS: 

"SECTIONS 45, 46, AND 47 OF ARTICLE V OF THE CONSTITUTION OF THE
STATE OF COLORADO ARE HEREBY REPEALED AND NEW SECTIONS 45, 46, 47 AND
48 OF ARTICLE V ARE ADOPTED, TO READ AS FOLLOWS: 

"SECTION 45.  GENERAL ASSEMBLY.  THE GENERAL ASSEMBLY SHALL CONSIST
OF 39 MEMBERS OF THE SENATE AND 65 MEMBERS OF THE HOUSE, ONE TO BE
ELECTED FROM EACH SENATORIAL AND REPRESENTATIVE DISTRICT.  DISTRICTS OF
THE SAME HOUSE SHALL NOT OVERLAP.  ALL DISTRICTS SHALL BE AS COMPACT AS
MAY BE AND SHALL CONSIST OF CONTIGUOUS WHOLE GENERAL ELECTION
PRECINCTS.  NO PART OF ONE COUNTY SHALL BE ADDED TO ANOTHER COUNTY OR
PART OF ANOTHER COUNTY IN FORMING A DISTRICT.  WHEN A DISTRICT INCLUDES
TWO OR MORE COUNTIES THEY SHALL BE CONTIGUOUS.    "SECTION 46.  HOUSE
OF REPRESENTATIVES.  THE STATE SHALL BE DIVIDED INTO 65 REPRESENTATIVE
DISTRICTS WHICH SHALL BE AS NEARLY EQUAL IN POPULATION AS MAY BE. 

"SECTION 47.  SENATE.  THE STATE SHALL BE DIVIDED INTO 39 SENATORIAL
DISTRICTS.  THE APPORTIONMENT OF SENATORS AMONG THE COUNTIES SHALL BE
THE SAME AS NOW PROVIDED BY 63-1-3 OF COLORADO REVISED STATUTES 1953,
WHICH SHALL NOT BE REPEALED OR AMENDED OTHER THAN IN NUMBERING
DISTRICTS, EXCEPT THAT THE COUNTIES OF CHEYENNE, ELBERT, KIOWA, KIT
CARSON AND LINCOLN SHALL FORM ONE DISTRICT, AND ONE ADDITIONAL SENATOR
IS HEREBY APPORTIONED TO EACH OF THE COUNTIES OF ADAMS, ARAPAHOE,
BOULDER AND JEFFERSON.  WITHIN A COUNTY TO WHICH THERE IS APPORTIONED
MORE THAN ONE SENATOR, SENATORIAL DISTRICTS SHALL BE AS NEARLY EQUAL IN
POPULATION AS MAY BE. 

"SECTION 48.  REVISION OF DISTRICTS.  AT THE REGULAR SESSION OF THE
GENERAL ASSEMBLY OF 1963 AND EACH REGULAR SESSION NEXT FOLLOWING
OFFICIAL PUBLICATION OF EACH FEDERAL ENUMERATION OF THE POPULATION OF
THE STATE, THE GENERAL ASSEMBLY SHALL IMMEDIATELY ALTER AND AMEND THE
BOUNDARIES OF ALL REPRESENTATIVE DISTRICTS AND OF THOSE SENATORIAL
DISTRICTS WITHIN ANY COUNTY TO WHICH THERE IS APPORTIONED MORE THAN ONE
SENATOR TO CONFORM TO THE REQUIREMENTS OF SECTIONS 45, 46 AND 47 OF
THIS ARTICLE V. AFTER 45 DAYS FROM THE BEGINNING OF EACH SUCH REGULAR
SESSION, NO MEMBER OF THE GENERAL ASSEMBLY SHALL BE ENTITLED TO OR EARN
ANY COMPENSATION OR RECEIVE ANY PAYMENTS ON ACCOUNT OF SALARY OR
EXPENSES, AND THE MEMBERS OF ANY GENERAL ASSEMBLY SHALL BE INELIGIBLE
FOR ELECTION TO SUCCEED THEMSELVES IN OFFICE, UNTIL SUCH REVISIONS HAVE
BEEN MADE.  UNTIL THE COMPLETION OF THE TERMS OF THE REPRESENTATIVES
ELECTED AT THE GENERAL ELECTION HELD IN NOVEMBER OF 1962 SHALL HAVE
EXPIRED, THE APPORTIONMENT OF SENATORS AND REPRESENTATIVES AND THE
SENATORIAL AND REPRESENTATIVE DISTRICTS OF THE GENERAL ASSEMBLY SHALL
BE AS PROVIDED BY LAW." 

FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 589. 

MR. JUSTICE CLARK, DISSENTING. 

WHILE I JOIN MY BROTHER STEWART'S OPINION, I HAVE SOME ADDITIONAL
OBSERVATIONS WITH REFERENCE TO THIS CASE. 

THE PARTIES CONCEDE THAT THE COLORADO HOUSE OF REPRESENTATIVES IS NOT
APPORTIONED "AS NEARLY EQUAL IN POPULATION AS MAY BE."  THE COURT DOES
NOT DISTURB THIS STIPULATION THOUGH IT SEEMS TO ACCEPT IT IN NIGGARDLY
FASHION.  THE FACT THAT 45.1% OF THE STATE'S POPULATION RESIDES IN THE
AREA WHICH SELECTS A MAJORITY OF THE HOUSE INDICATES RATHER
CONCLUSIVELY THAT THE APPORTIONMENT COMES WITHIN THE TEST LAID DOWN IN
REYNOLDS V. SIMS, ANTE, P. 533, DECIDED THIS DATE, VIZ.: "'ONE PERSON,
ONE VOTE,'" THAT IS, "APPROXIMATELY EQUAL" OR "'AS NEARLY AS
PRACTICABLE'" WITH ONLY "SOME DEVIATIONS  ...  ."  INDEED, THE COLORADO
HOUSE IS WITHIN 4.9% OF BEING PERFECT.  MOREOVER, THE FACT THAT THE
APPORTIONMENT FOLLOWS POLITICAL SUBDIVISION LINES TO SOME EXTENT IS
ALSO A TEACHING OF REYNOLDS V. SIMS, SUPRA.  BUT THE COURT STRIKES DOWN
COLORADO'S APPORTIONMENT, WHICH WAS ADOPTED BY THE MAJORITY VOTE OF
EVERY POLITICAL SUBDIVISION IN THE STATE BECAUSE THE SENATE'S MAJORITY
IS ELECTED BY 33.2% OF THE POPULATION, A MUCH HIGHER PERCENTAGE THAN
THAT WHICH ELECTS A MAJORITY OF THE SENATE OF THE UNITED STATES. 

I WOULD REFUSE TO INTERFERE WITH THIS APPORTIONMENT FOR SEVERAL
REASONS.  FIRST, COLORADO ENJOYS THE INITIATIVE AND REFERENDUM SYSTEM
WHICH IT OFTEN UTILIZES AND WHICH, INDEED, PRODUCED THE PRESENT
APPORTIONMENT.  AS A RESULT OF THE ACTION OF THE LEGISLATURE AND THE
USE OF INITIATIVE AND REFERENDUM, THE STATE ASSEMBLY HAS BEEN
REAPPORTIONED EIGHT TIMES SINCE 1881.  THIS INDICATES THE COMPLETE
AWARENESS OF THE PEOPLE OF COLORADO TO APPORTIONMENT PROBLEMS AND THEIR
CONTINUING EFFORTS TO SOLVE THEM.  THE COURTS SHOULD NOT INTERFERE IN
SUCH A SITUATION.  SEE MY CONCURRING OPINION IN BAKER V. CARR, 369 U.S.
186, 258-259 (1962).  NEXT, AS MY BROTHER STEWART HAS POINTED OUT,
THERE ARE RATIONAL AND MOST PERSUASIVE REASONS FOR SOME DEVIATIONS IN
THE REPRESENTATION IN THE COLORADO ASSEMBLY.  THE STATE HAS MOUNTAINOUS
AREAS WHICH DIVIDE IT INTO FOUR REGIONS, SOME PARTS OF WHICH ARE ALMOST
IMPENETRABLE.  THERE ARE ALSO SOME DEPRESSED AREAS, DIVERSIFIED
INDUSTRY AND VARIED CLIMATE, AS WELL AS ENORMOUS RECREATIONAL REGIONS
AND DIFFICULTIES IN TRANSPORTATION.  THESE FACTORS GIVE RISE TO
PROBLEMS INDIGENOUS TO COLORADO, WHICH ONLY ITS PEOPLE CAN
INTELLIGENTLY SOLVE.  THIS THEY HAVE DONE IN THE PRESENT
APPORTIONMENT. 

FINALLY, I CANNOT AGREE TO THE ARBITRARY APPLICATION OF THE "ONE MAN,
ONE VOTE" PRINCIPLE FOR BOTH HOUSES OF A STATE LEGISLATURE.  IN MY
VIEW, IF ONE HOUSE IS FAIRLY APPORTIONED BY POPULATION (AS IS ADMITTED
HERE) THEN THE PEOPLE SHOULD HAVE SOME LATITUDE IN PROVIDING, ON A
RATIONAL BASIS, FOR REPRESENTATION IN THE OTHER HOUSE.  THE COURT SEEMS
TO APPROVE THE FEDERAL ARRANGEMENT OF TWO SENATORS FROM EACH STATE ON
THE GROUND THAT IT WAS A COMPROMISE REACHED BY THE FRAMERS OF OUR
CONSTITUTION AND IS A PART OF THE FABRIC OF OUR NATIONAL CHARTER.  BUT
WHAT THE COURT OVERLOOKS IS THAT COLORADO, BY AN OVERWHELMING VOTE, HAS
LIKEWISE WRITTEN THE ORGANIZATION OF ITS LEGISLATIVE BODY INTO ITS
CONSTITUTION,* AND OUR DUAL FEDERALISM REQUIRES THAT WE GIVE IT
RECOGNITION.  AFTER ALL, THE EQUAL PROTECTION CLAUSE IS NOT AN
ALGEBRAIC FORMULA.  EQUAL PROTECTION DOES NOT REST ON WHETHER THE
PRACTICE ASSAILED "RESULTS IN SOME INEQUALITY" BUT RATHER ON WHETHER
"ANY STATE OF FACTS REASONABLY CAN BE CONCEIVED THAT WOULD SUSTAIN IT";
AND ONE WHO ATTACKS IT MUST SHOW "THAT IT DOES NOT REST UPON ANY
REASONABLE BASIS, BUT IS ESSENTIALLY ARBITRARY."  MR. JUSTICE VAN
DEVANTER IN LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-79
(1911).  CERTAINLY COLORADO'S ARRANGEMENT IS NOT ARBITRARY.  ON THE
CONTRARY, IT RESTS ON REASONABLE GROUNDS WHICH, AS I HAVE POINTED OUT,
ARE PECULIAR TO THAT STATE.  IT IS ARGUED THAT THE COLORADO
APPORTIONMENT WOULD LEAD ONLY TO A LEGISLATIVE STALEMATE BETWEEN THE
TWO HOUSES, BUT THE EXPERIENCE OF THE CONGRESS COMPLETELY REFUTES THIS
ARGUMENT.  NOW IN ITS 176TH YEAR, THE FEDERAL PLAN HAS WORKED WELL.  IT
IS FURTHER SAID THAT IN ANY EVENT COLORADO'S APPORTIONMENT WOULD
SUBSTITUTE COMPROMISE FOR THE LEGISLATIVE PROCESS.  BUT MOST
LEGISLATION IS THE PRODUCT OF COMPROMISE BETWEEN THE VARIOUS FORCES
ACTING FOR AND AGAINST ITS ENACTMENT. 

* THE COURT SAYS THAT THE CHOICE PRESENTED TO THE ELECTORATE WAS
HARDLY "CLEAR-CUT."  THE SHORT ANSWER TO THIS IS THAT IF THE VOTERS HAD
DESIRED OTHER CHOICES, THEY COULD HAVE ACCOMPLISHED THIS EASILY BY
FILING INITIATIVE PETITIONS, SINCE IN COLORADO 8% OF THE VOTERS CAN
FORCE AN ELECTION. 

IN STRIKING DOWN COLORADO'S PLAN OF APPORTIONMENT, THE COURT, I
BELIEVE, IS EXCEEDING ITS POWERS UNDER THE EQUAL PROTECTION CLAUSE; IT
IS INVADING THE VALID FUNCTIONING OF THE PROCEDURES OF THE STATES, AND
THEREBY COMMITTING A GRIEVOUS ERROR WHICH WILL DO IRREPARABLE DAMAGE TO
OUR FEDERAL-STATE RELATIONSHIP.  I DISSENT. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE CLARK JOINS, DISSENTING.* 

* THIS OPINION APPLIES ALSO TO NO. 20, WMCA, INC., ET AL. V. LOMENZO,
SECRETARY OF STATE OF NEW YORK, ET AL, ANTE, P. 633. 

IT IS IMPORTANT TO MAKE CLEAR AT THE OUTSET WHAT THESE CASES ARE NOT
ABOUT.  THEY HAVE NOTHING TO DO WITH THE DENIAL OR IMPAIRMENT OF ANY
PERSON'S RIGHT TO VOTE.  NOBODY'S RIGHT TO VOTE HAS BEEN DENIED. 
NOBODY'S RIGHT TO VOTE HAS BEEN RESTRICTED.  NOBODY HAS BEEN DEPRIVED
OF THE RIGHT TO HAVE HIS VOTE COUNTED.  THE VOTING RIGHT CASES WHICH
THE COURT CITES ARE, THEREFORE, COMPLETELY WIDE OF THE MARK.  (FN1)
SECONDLY, THESE CASES HAVE NOTHING TO DO WITH THE "WEIGHTING" OR
"DILUTING" OF VOTES CAST WITHIN ANY ELECTORAL UNIT.  THE RULE OF GRAY
V. SANDERS, 372 U.S. 368, IS, THEREFORE, COMPLETELY WITHOUT RELEVANCE
HERE.  (FN2)  THIRDLY, THESE CASES ARE NOT CONCERNED WITH THE ELECTION
OF MEMBERS OF THE CONGRESS OF THE UNITED STATES, GOVERNED BY ARTICLE I
OF THE CONSTITUTION.  CONSEQUENTLY, THE COURT'S DECISION IN WESBERRY V.
SANDERS, 376 U.S. 1, THROWS NO LIGHT AT ALL ON THE BASIC ISSUE NOW
BEFORE US.  (FN3) 

THE QUESTION INVOLVED IN THESE CASES IS QUITE A DIFFERENT ONE. 
SIMPLY STATED, THE QUESTION IS TO WHAT DEGREE, IF AT ALL, THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT LIMITS EACH SOVEREIGN
STATE'S FREEDOM TO ESTABLISH APPROPRIATE ELECTORAL CONSTITUENCIES FROM
WHICH REPRESENTATIVES TO THE STATE'S BICAMERAL LEGISLATIVE ASSEMBLY ARE
TO BE CHOSEN.  THE COURT'S ANSWER IS A BLUNT ONE, AND, I THINK,
WOEFULLY WRONG.  THE EQUAL PROTECTION CLAUSE, SAYS THE COURT, "REQUIRES
THAT THE SEATS IN BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE MUST BE
APPORTIONED ON A POPULATION BASIS."  (FN4) 

AFTER SEARCHING CAREFULLY THROUGH THE COURT'S OPINIONS IN THESE AND
THEIR COMPANION CASES, I HAVE BEEN ABLE TO FIND BUT TWO REASONS OFFERED
IN SUPPORT OF THIS RULE.  FIRST, SAYS THE COURT, IT IS "ESTABLISHED
THAT THE FUNDAMENTAL PRINCIPLE OF REPRESENTATIVE GOVERNMENT IN THIS
COUNTRY IS ONE OF EQUAL REPRESENTATION FOR EQUAL NUMBERS OF PEOPLE  ...
."  (FN5)  WITH ALL RESPECT, I THINK THAT THIS IS NOT CORRECT, SIMPLY
AS A MATTER OF FACT.  IT HAS BEEN UNANSWERABLY DEMONSTRATED BEFORE NOW
THAT THIS "WAS NOT THE COLONIAL SYSTEM, IT WAS NOT THE SYSTEM CHOSEN
FOR THE NATIONAL GOVERNMENT BY THE CONSTITUTION, IT WAS NOT THE SYSTEM
EXCLUSIVELY OR EVEN PREDOMINANTLY PRACTICED BY THE STATES AT THE TIME
OF ADOPTION OF THE FOURTEENTH AMENDMENT, IT IS NOT PREDOMINANTLY
PRACTICED BY THE STATES TODAY."  (FN6)  SECONDLY, SAYS THE COURT,
UNLESS LEGISLATIVE DISTRICTS ARE EQUAL IN POPULATION, VOTERS IN THE
MORE POPULOUS DISTRICTS WILL SUFFER A "DEBASEMENT" AMOUNTING TO A
CONSTITUTIONAL INJURY.  AS THE COURT EXPLAINS IT, "TO THE EXTENT THAT A
CITIZEN'S RIGHT TO VOTE IS DEBASED, HE IS THAT MUCH LESS A CITIZEN." 
(FN7)  WE ARE NOT TOLD HOW OR WHY THE VOTE OF A PERSON IN A MORE
POPULATED LEGISLATIVE DISTRICT IS "DEBASED," OR HOW OR WHY HE IS LESS A
CITIZEN, NOR IS THE PROPOSITION SELF-EVIDENT.  I FIND IT IMPOSSIBLE TO
UNDERSTAND HOW OR WHY A VOTER IN CALIFORNIA, FOR INSTANCE, EITHER FEELS
OR IS LESS A CITIZEN THAN A VOTER IN NEVADA, SIMPLY BECAUSE, DESPITE
THEIR POPULATION DISPARITIES, EACH OF THOSE STATES IS REPRESENTED BY
TWO UNITED STATES SENATORS.  (FN8) 

TO PUT THE MATTER PLAINLY, THERE IS NOTHING IN ALL THE HISTORY OF
THIS COURT'S DECISIONS WHICH SUPPORTS THIS CONSTITUTIONAL RULE.  THE
COURT'S DRACONIAN PRONOUNCEMENT, WHICH MAKES UNCONSTITUTIONAL THE
LEGISLATURES OF MOST OF THE 50 STATES, FINDS NO SUPPORT IN THE WORDS OF
THE CONSTITUTION, IN ANY PRIOR DECISION OF THIS COURT, OR IN THE 175
YEAR POLITICAL HISTORY OF OUR FEDERAL UNION.  (FN9) WITH ALL RESPECT, I
AM CONVINCED THESE DECISIONS MARK A LONG STEP BACKWARD INTO THAT
UNHAPPY ERA WHEN A MAJORITY OF THE MEMBERS OF THIS COURT WERE THOUGHT
BY MANY TO HAVE CONVINCED THEMSELVES AND EACH OTHER THAT THE DEMANDS OF
THE CONSTITUTION WERE TO BE MEASURED NOT BY WHAT IT SAYS, BUT BY THEIR
OWN NOTIONS OF WISE POLITICAL THEORY.  THE RULE ANNOUNCED TODAY IS AT
ODDS WITH LONG-ESTABLISHED PRINCIPLES OF CONSTITUTIONAL ADJUDICATION
UNDER THE EQUAL PROTECTION CLAUSE, AND IT STIFLES VALUES OF LOCAL
INDIVIDUALITY AND INITIATIVE VITAL TO THE CHARACTER OF THE FEDERAL
UNION WHICH IT WAS THE GENIUS OF OUR CONSTITUTION TO CREATE. 

                                              I. 

WHAT THE COURT HAS DONE IS TO CONVERT A PARTICULAR POLITICAL
PHILOSOPHY INTO A CONSTITUTIONAL RULE, BINDING UPON EACH OF THE 50
STATES, FROM MAINE TO HAWAII, FROM ALASKA TO TEXAS, WITHOUT REGARD AND
WITHOUT RESPECT FOR THE MANY INDIVIDUALIZED AND DIFFERENTIATED
CHARACTERISTICS OF EACH STATE, CHARACTERISTICS STEMMING FROM EACH
STATE'S DISTINCT HISTORY, DISTINCT GEOGRAPHY, DISTINCT DISTRIBUTION OF
POPULATION, AND DISTINCT POLITICAL HERITAGE.  MY OWN UNDERSTANDING OF
THE VARIOUS THEORIES OF REPRESENTATIVE GOVERNMENT IS THAT NO ONE THEORY
HAS EVER COMMANDED UNANIMOUS ASSENT AMONG POLITICAL SCIENTISTS,
HISTORIANS, OR OTHERS WHO HAVE CONSIDERED THE PROBLEM.  (FN10)  BUT
EVEN IF IT WERE THOUGHT THAT THE RULE ANNOUNCED TODAY BY THE COURT IS,
AS A MATTER OF POLITICAL THEORY, THE MOST DESIRABLE GENERAL RULE WHICH
CAN BE DEVISED AS A BASIS FOR THE MAKE-UP OF THE REPRESENTATIVE
ASSEMBLY OF A TYPICAL STATE, I COULD NOT JOIN IN THE FABRICATION OF A
CONSTITUTIONAL MANDATE WHICH IMPORTS AND FOREVER FREEZES ONE THEORY OF
POLITICAL THOUGHT INTO OUR CONSTITUTION, AND FOREVER DENIES TO EVERY
STATE ANY OPPORTUNITY FOR ENLIGHTENED AND PROGRESSIVE INNOVATION IN THE
DESIGN OF ITS DEMOCRATIC INSTITUTIONS, SO AS TO ACCOMMODATE WITH A
SYSTEM OF REPRESENTATIVE GOVERNMENT THE INTERSTS AND ASPIRATIONS OF
DIVERSE GROUPS OF PEOPLE, WITHOUT SUBJECTING ANY GROUP OR CLASS TO
ABSOLUTE DOMINATION BY A GEOGRAPHICALLY CONCENTRATED OR HIGHLY
ORGANIZED MAJORITY. 

REPRESENTATIVE GOVERNMENT IS A PROCESS OF ACCOMMODATING GROUP
INTERESTS THROUGH DEMOCRATIC INSTITUTIONAL ARRANGEMENTS.  ITS FUNCTION
IS TO CHANNEL THE NUMEROUS OPINIONS, INTERESTS, AND ABILITIES OF THE
PEOPLE OF A STATE INTO THE MAKING OF THE STATE'S PUBLIC POLICY. 
APPROPRIATE LEGISLATIVE APPORTIONMENT, THEREFORE, SHOULD IDEALLY BE
DESIGNED TO INSURE EFFECTIVE REPRESENTATION IN THE STATE'S LEGISLATURE,
IN COOPERATION WITH OTHER ORGANS OF POLITICAL POWER, OF THE VARIOUS
GROUPS AND INTERESTS MAKING UP THE ELECTORATE.  IN PRACTICE, OF COURSE,
THIS IDEAL IS APPROXIMATED IN THE PARTICULAR APPORTIONMENT SYSTEM OF
ANY STATE BY A REALISTIC ACCOMMODATION OF THE DIVERSE AND OFTEN
CONFLICTING POLITICAL FORCES OPERATING WITHIN THE STATE.    I DO NOT
PRETEND TO ANY SPECIALIZED KNOWLEDGE OF THE MYRIAD OF INDIVIDUAL
CHARACTERISTICS OF THE SEVERAL STATES, BEYOND THE RECORDS IN THE CASES
BEFORE US TODAY.  BUT I DO KNOW ENOUGH TO BE AWARE THAT A SYSTEM OF
LEGISLATIVE APPORTIONMENT WHICH MIGHT BE BEST FOR SOUTH DAKOTA, MIGHT
BE UNWISE FOR HAWAII WITH ITS MANY ISLANDS, OR MICHIGAN WITH ITS
NORTHERN PENINSULA.  I DO KNOW ENOUGH TO REALIZE THAT MONTANA WITH ITS
VAST DISTANCES IS NOT RHODE ISLAND WITH ITS HEAVY CONCENTRATIONS OF
PEOPLE.  I DO KNOW ENOUGH TO BE AWARE OF THE GREAT VARIATIONS AMONG THE
SEVERAL STATES IN THEIR HISTORIC MANNER OF DISTRIBUTING LEGISLATIVE
POWER - OF THE GOVERNORS' COUNCILS IN NEW ENGLAND, OF THE BROAD POWERS
OF INITIATIVE AND REFERENDUM RETAINED IN SOME STATES BY THE PEOPLE, OF
THE LEGISLATIVE POWER WHICH SOME STATES GIVE TO THEIR GOVERNORS, BY THE
RIGHT OF VETO OR OTHERWISE, OF THE WIDELY AUTONOMOUS HOME RULE WHICH
MANY STATES GIVE TO THEIR CITIES.  (FN11)  THE COURT TODAY DECLINES TO
GIVE ANY RECOGNITION TO THESE CONSIDERATIONS AND COUNTLESS OTHERS,
TANGIBLE AND INTANGIBLE, IN HOLDING UNCONSTITUTIONAL THE PARTICULAR
SYSTEMS OF LEGISLATIVE APPORTIONMENT WHICH THESE STATES HAVE CHOSEN. 
INSTEAD, THE COURT SAYS THAT THE REQUIREMENTS OF THE EQUAL PROTECTION
CLAUSE CAN BE MET IN ANY STATE ONLY BY THE UNCRITICAL, SIMPLISTIC, AND
HEAVY-HANDED APPLICATION OF SIXTH-GRADE ARITHMETIC. 

BUT LEGISLATORS DO NOT REPRESENT FACELESS NUMBERS.  THEY REPRESENT
PEOPLE, OR, MORE ACCURATELY, A MAJORITY OF THE VOTERS IN THEIR
DISTRICTS - PEOPLE WITH IDENTIFIABLE NEEDS AND INTERESTS WHICH REQUIRE
LEGISLATIVE REPRESENTATION, AND WHICH CAN OFTEN BE RELATED TO THE
GEOGRAPHICAL AREAS IN WHICH THESE PEOPLE LIVE.  THE VERY FACT OF
GEOGRAPHIC DISTRICTING, THE CONSTITUTIONAL VALIDITY OF WHICH THE COURT
DOES NOT QUESTION, CARRIES WITH IT AN ACCEPTANCE OF THE IDEA OF
LEGISLATIVE REPRESENTATION OF REGIONAL NEEDS AND INTERESTS.  YET IF
GEOGRAPHICAL RESIDENCE IS IRRELEVANT, AS THE COURT SUGGESTS, AND THE
GOAL IS SOLELY THAT OF EQUALLY "WEIGHTED" VOTES, I DO NOT UNDERSTAND
WHY THE COURT'S CONSTITUTIONAL RULE DOES NOT REQUIRE THE ABOLITION OF
DISTRICTS AND THE HOLDING OF ALL ELECTIONS AT LARGE.  (FN12) 

THE FACT IS, OF COURSE, THAT POPULATION FACTORS MUST OFTEN TO SOME
DEGREE BE SUBORDINATED IN DEVISING A LEGISLATIVE APPORTIONMENT PLAN
WHICH IS TO ACHIEVE THE IMPORTANT GOAL OF ENSURING A FAIR, EFFECTIVE,
AND BALANCED REPRESENTATION OF THE REGIONAL, SOCIAL, AND ECONOMIC
INTERESTS WITHIN A STATE.  AND THE FURTHER FACT IS THAT THROUGHOUT OUR
HISTORY THE APPORTIONMENTS OF STATE LEGISLATURES HAVE REFLECTED THE
STRONGLY FELT AMERICAN TRADITION THAT THE PUBLIC INTEREST IS COMPOSED
OF MANY DIVERSE INTERESTS, AND THAT IN THE LONG RUN IT CAN BETTER BE
EXPRESSED BY A MEDLEY OF COMPONENT VOICES THAN BY THE MAJORITY'S
MONOLITHIC COMMAND.  WHAT CONSTITUTES A RATIONAL PLAN REASONABLY
DESIGNED TO ACHIEVE THIS OBJECTIVE WILL VARY FROM STATE TO STATE, SINCE
EACH STATE IS UNIQUE, IN TERMS OF TOPOGRAPHY, GEOGRAPHY, DEMOGRAPHY,
HISTORY, HETEROGENEITY AND CONCENTRATION OF POPULATION, VARIETY OF
SOCIAL AND ECONOMIC INTERESTS, AND IN THE OPERATION AND INTERRELATION
OF ITS POLITICAL INSTITUTIONS.  BUT SO LONG AS A STATE'S APPORTIONMENT
PLAN REASONABLY ACHIEVES, IN THE LIGHT OF THE STATE'S OWN
CHARACTERISTICS, EFFECTIVE AND BALANCED REPRESENTATION OF ALL
SUBSTANTIAL INTERESTS, WITHOUT SACRIFICING THE PRINCIPLE OF EFFECTIVE
MAJORITY RULE, THAT PLAN CANNOT BE CONSIDERED IRRATIONAL. 

                                             II. 

THIS BRINGS ME TO WHAT I CONSIDER TO BE THE PROPER CONSTITUTIONAL
STANDARDS TO BE APPLIED IN THESE CASES.  QUITE SIMPLY, I THINK THE
CASES SHOULD BE DECIDED BY APPLICATION OF ACCEPTED PRINCIPLES OF
CONSTITUTIONAL ADJUDICATION UNDER THE EQUAL PROTECTION CLAUSE.  A
RECENT EXPRESSION BY THE COURT OF THESE PRINCIPLES WILL SERVE AS A
GENERALIZED COMPENDIUM: 

"THE FOURTEENTH AMENDMENT PERMITS THE STATES A WIDE SCOPE OF
DISCRETION IN ENACTING LAWS WHICH AFFECT SOME GROUPS OF CITIZENS
DIFFERENTLY THAN OTHERS.  THE CONSTITUTIONAL SAFEGUARD IS OFFENDED ONLY
IF THE CLASSIFICATION RESTS ON GROUNDS WHOLLY IRRELEVANT TO THE
ACHIEVEMENT OF THE STATE'S OBJECTIVE.  STATE LEGISLATURES ARE PRESUMED
TO HAVE ACTED WITHIN THEIR CONSTITUTIONAL POWER DESPITE THE FACT THAT,
IN PRACTICE, THEIR LAWS RESULT IN SOME INEQUALITY.  A STATUTORY
DISCRIMINATION WILL NOT BE SET ASIDE IF ANY STATE OF FACTS REASONABLY
MAY BE CONCEIVED TO JUSTIFY IT."  MCGOWAN V. MARYLAND, 366 U.S. 420,
425-426. 

THESE PRINCIPLES REFLECT AN UNDERSTANDING RESPECT FOR THE UNIQUE
VALUES INHERENT IN THE FEDERAL UNION OF STATES ESTABLISHED BY OUR
CONSTITUTION.  THEY REFLECT, TOO, A WISE PERCEPTION OF THIS COURT'S
ROLE IN THAT CONSTITUTIONAL SYSTEM.  THE POINT WAS NEVER BETTER MADE
THAN BY MR. JUSTICE BRANDEIS, DISSENTING IN NEW STATE ICE CO. V.
LIEBMANN, 285 U.S. 262, 280.  THE FINAL PARAGRAPH OF THAT CLASSIC
DISSENT IS WORTH REPEATING HERE: 

"TO STAY EXPERIMENTATION IN THINGS SOCIAL AND ECONOMIC IS A GRAVE
RESPONSIBILITY.  DENIAL OF THE RIGHT TO EXPERIMENT MAY BE FRAUGHT WITH
SERIOUS CONSEQUENCES TO THE NATION.  IT IS ONE OF THE HAPPY INCIDENTS
OF THE FEDERAL SYSTEM THAT A SINGLE COURAGEOUS STATE MAY, IF ITS
CITIZENS CHOOSE, SERVE AS A LABORATORY; AND TRY NOVEL SOCIAL AND
ECONOMIC EXPERIMENTS WITHOUT RISK TO THE REST OF THE COUNTRY.   THIS
COURT HAS THE POWER TO PREVENT AN EXPERIMENT.  WE MAY STRIKE DOWN THE
STATUTE WHICH EMBODIES IT ON THE GROUND THAT, IN OUR OPINION, THE
MEASURE IS ARBITRARY, CAPRICIOUS OR UNREASONABLE  ...  . BUT IN THE
EXERCISE OF THIS HIGH POWER, WE MUST BE EVER ON OUR GUARD, LEST WE
ERECT OUR PREJUDICES INTO LEGAL PRINCIPLES.  IF WE WOULD GUIDE BY THE
LIGHT OF REASON, WE MUST LET OUR MINDS BE BOLD."  285 U.S., AT 311. 

THAT CASES SUCH AS THE ONES NOW BEFORE US WERE TO BE DECIDED UNDER
THESE ACCEPTED EQUAL PROTECTION CLAUSE STANDARDS WAS THE CLEAR IMPORT
OF WHAT WAS SAID ON THIS SCORE IN BAKER V. CARR, 369 U.S. 186, 226: 

"NOR NEED THE APPELLANTS, IN ORDER TO SUCCEED IN THIS ACTION, ASK THE
COURT TO ENTER UPON POLICY DETERMINATIONS FOR WHICH JUDICIALLY
MANAGEABLE STANDARDS ARE LACKING.  JUDICIAL STANDARDS UNDER THE EQUAL
PROTECTION CLAUSE ARE WELL DEVELOPED AND FAMILIAR, AND IT HAS BEEN OPEN
TO COURTS SINCE THE ENACTMENT OF THE FOURTEENTH AMENDMENT TO DETERMINE,
IF ON THE PARTICULAR FACTS THEY MUST, THAT A DISCRIMINATION REFLECTS NO
POLICY, BUT SIMPLY ARBITRARY AND CAPRICIOUS ACTION. 

IT IS TO BE REMEMBERED THAT THE COURT IN BAKER V. CARR DID NOT
QUESTION WHAT HAD BEEN SAID ONLY A FEW YEARS EARLIER IN MACDOUGALL V.
GREEN, 335 U.S. 281, 284: 

"IT WOULD BE STRANGE INDEED, AND DOCTRINAIRE, FOR THIS COURT,
APPLYING SUCH BROAD CONSTITUTIONAL CONCEPTS AS DUE PROCESS AND EQUAL
PROTECTION OF THE LAWS, TO DENY A STATE THE POWER TO ASSURE A PROPER
DIFFUSION OF POLITICAL INITIATIVE AS BETWEEN ITS THINLY POPULATED
COUNTIES AND THOSE HAVING CONCENTRATED MASSES, IN VIEW OF THE FACT THAT
THE LATTER HAVE PRACTICAL OPPORTUNITIES FOR EXERTING THEIR POLITICAL
WEIGHT AT THE POLLS NOT AVAILABLE TO THE FORMER.  THE CONSTITUTION - A
PRACTICAL INSTRUMENT OF GOVERNMENT - MAKES NO SUCH DEMANDS ON THE
STATES." 

MOVING FROM THE GENERAL TO THE SPECIFIC, I THINK THAT THE EQUAL
PROTECTION CLAUSE DEMANDS BUT TWO BASIC ATTRIBUTES OF ANY PLAN OF STATE
LEGISLATIVE APPORTIONMENT.  FIRST, IT DEMANDS THAT, IN THE LIGHT OF THE
STATE'S OWN CHARACTERISTICS AND NEEDS, THE PLAN MUST BE A RATIONAL
ONE.  SECONDLY, IT DEMANDS THAT THE PLAN MUST BE SUCH AS NOT TO PERMIT
THE SYSTEMATIC FRUSTRATION OF THE WILL OF A MAJORITY OF THE ELECTORATE
OF THE STATE.  (FN13)  I THINK IT IS APPARENT THAT ANY PLAN OF
LEGISLATIVE APPORTIONMENT WHICH COULD BE SHOWN TO REFLECT NO POLICY,
BUT SIMPLY ARBITRARY AND CAPRICIOUS ACTION OR INACTION, AND THAT ANY
PLAN WHICH COULD BE SHOWN SYSTEMATICALLY TO PREVENT ULTIMATE EFFECTIVE
MAJORITY RULE, WOULD BE INVALID UNDER ACCEPTED EQUAL PROTECTION CLAUSE
STANDARDS.   BUT, BEYOND THIS, I THINK THERE IS NOTHING IN THE FEDERAL
CONSTITUTION TO PREVENT A STATE FROM CHOOSING ANY ELECTORAL LEGISLATIVE
STRUCTURE IT THINKS BEST SUITED TO THE INTERESTS, TEMPER, AND CUSTOMS
OF ITS PEOPLE.  IN THE LIGHT OF THESE STANDARDS, I TURN TO THE COLORADO
AND NEW YORK PLANS OF LEGISLATIVE APPORTIONMENT. 

                                            III. 

                                          COLORADO. 

THE COLORADO PLAN CREATES A GENERAL ASSEMBLY COMPOSED OF A SENATE OF
39 MEMBERS AND A HOUSE OF 65 MEMBERS.  THE STATE IS DIVIDED INTO 65
EQUAL POPULATION REPRESENTATIVE DISTRICTS, WITH ONE REPRESENTATIVE TO
BE ELECTED FROM EACH DISTRICT, AND 39 SENATORIAL DISTRICTS, 14 OF WHICH
INCLUDE MORE THAN ONE COUNTY.  IN THE COLORADO HOUSE, THE MAJORITY
UNQUESTIONABLY RULES SUPREME, WITH THE POPULATION FACTOR UNTEMPERED BY
OTHER CONSIDERATIONS.  IN THE SENATE RURAL MINORITIES DO NOT HAVE
EFFECTIVE CONTROL, AND THEREFORE DO NOT HAVE EVEN A VETO POWER OVER THE
WILL OF THE URBAN MAJORITIES.  IT IS TRUE THAT, AS A MATTER OF
THEORETICAL ARITHMETIC, A MINORITY OF 36% OF THE VOTERS COULD ELECT A
MAJORITY OF THE SENATE, BUT THIS PERCENTAGE HAS NO REAL MEANING IN
TERMS OF THE LEGISLATIVE PROCESS.  (FN14)  UNDER THE COLORADO PLAN, NO
POSSIBLE COMBINATION OF COLORADO SENATORS FROM RURAL DISTRICTS, EVEN
ASSUMING ARGUENDO THAT THEY WOULD VOTE AS A BLOC, COULD CONTROL THE
SENATE.  TO ARRIVE AT THE 36% FIGURE, ONE MUST INCLUDE WITH THE RURAL
DISTRICTS A SUBSTANTIAL NUMBER OF URBAN DISTRICTS, DISTRICTS WITH
SUBSTANTIALLY DISSIMILAR INTERESTS.  THERE IS ABSOLUTELY NO REASON TO
ASSUME THAT THIS THEORETICAL MAJORITY WOULD EVER VOTE TOGETHER ON ANY
ISSUE SO AS TO THWART THE WISHES OF THE MAJORITY OF THE VOTERS OF
COLORADO.  INDEED, WHEN WE ESCHEW THE WORLD OF NUMBERS, AND LOOK TO THE
REAL WORLD OF EFFECTIVE REPRESENTATION, THE SIMPLE FACT OF THE MATTER
IS THAT COLORADO'S THREE METROPOLITAN AREAS, DENVER, PUEBLO, AND
COLORADO SPRINGS, ELECT A MAJORITY OF THE SENATE. 

THE STATE OF COLORADO IS NOT AN ECONOMICALLY OR GEOGRAPHICALLY
HOMOGENEOUS UNIT.  THE CONTINENTAL DIVIDE CROSSES THE STATE IN A
MEANDERING LINE FROM NORTH TO SOUTH, AND COLORADO'S 104,247 SQUARE
MILES OF AREA ARE ALMOST EQUALLY DIVIDED BETWEEN HIGH PLAINS IN THE
EAST AND RUGGED MOUNTAINS IN THE WEST.  THE STATE'S POPULATION IS
HIGHLY CONCENTRATED IN THE URBANIZED EASTERN EDGE OF THE FOOTHILLS,
WHILE FARTHER TO THE EAST LIES THAT AGRICULTURAL AREA OF COLORADO WHICH
IS A PART OF THE GREAT PLAINS.  THE AREA LYING TO THE WEST OF THE
CONTINENTAL DIVIDE IS LARGELY MOUNTAINOUS, WITH TWO-THIRDS OF THE
POPULATION LIVING IN COMMUNITIES OF LESS THAN 2,500 INHABITANTS OR ON
FARMS.  LIVESTOCK RAISING, MINING AND TOURISM ARE THE DOMINANT
OCCUPATIONS.  THIS AREA IS FURTHER SUBDIVIDED BY A SERIES OF MOUNTAIN
RANGES CONTAINING SOME OF THE HIGHEST PEAKS IN THE UNITED STATES,
ISOLATING COMMUNITIES AND MAKING TRANSPORTATION FROM POINT TO POINT
DIFFICULT, AND IN SOME PLACES DURING THE WINTER MONTHS ALMOST
IMPOSSIBLE.  THE FOURTH DISTINCT REGION OF THE STATE IS THE SOUTH
CENTRAL REGION, IN WHICH IS LOCATED THE MOST ECONOMICALLY DEPRESSED
AREA IN THE STATE.  A SCARCITY OF WATER MAKES A STATE-WIDE WATER POLICY
A NECESSITY, WITH EACH REGION AFFECTED DIFFERENTLY BY THE PROBLEM. 

THE DISTRICT COURT FOUND THAT THE PEOPLE LIVING IN EACH OF THESE FOUR
REGIONS HAVE INTERESTS UNIFYING THEMSELVES AND DIFFERENTIATING THEM
FROM THOSE IN OTHER REGIONS.  GIVEN THESE UNDERLYING FACTS, CERTAINLY
IT WAS NOT IRRATIONAL TO CONCLUDE THAT EFFECTIVE REPRESENTATION OF THE
INTERESTS OF THE RESIDENTS OF EACH OF THESE REGIONS WAS UNLIKELY TO BE
ACHIEVED IF THE RULE OF EQUAL POPULATION DISTRICTS WERE MECHANICALLY
IMPOSED; THAT PLANNED DEPARTURES FROM A STRICT PER CAPITA STANDARD OF
REPRESENTATION WERE A DESIRABLE WAY OF ASSURING SOME REPRESENTATION OF
DISTINCT LOCALITIES WHOSE NEEDS AND PROBLEMS MIGHT HAVE PASSED
UNNOTICED IF DISTRICTS HAD BEEN DRAWN SOLELY ON A PER CAPITA BASIS; A
DESIRABLE WAY OF ASSURING THAT DISTRICTS SHOULD BE SMALL ENOUGH IN
AREA, IN A MOUNTAINOUS STATE LIKE COLORADO, WHERE ACCESSIBILITY IS
AFFECTED BY CONFIGURATION AS WELL AS COMPACTNESS OF DISTRICTS, TO
ENABLE EACH SENATOR TO HAVE FIRSTHAND KNOWLEDGE OF HIS ENTIRE DISTRICT
AND TO MAINTAIN CLOSE CONTACT WITH HIS CONSTITUENTS; AND A DESIRABLE
WAY OF AVOIDING THE DRAWING OF DISTRICT LINES WHICH WOULD SUBMERGE THE
NEEDS AND WISHES OF A PORTION OF THE ELECTORATE BY GROUPING THEM IN
DISTRICTS WITH LARGER NUMBERS OF VOTERS WITH WHOLLY DIFFERENT
INTERESTS. 

IT IS CLEAR FROM THE RECORD THAT IF PER CAPITA REPRESENTATION WERE
THE RULE IN BOTH HOUSES OF THE COLORADO LEGISLATURE, COUNTIES HAVING
SMALL POPULATIONS WOULD HAVE TO BE MERGED WITH LARGER COUNTIES HAVING
TOTALLY DISSIMILAR INTERESTS.  THEIR REPRESENTATIVES WOULD NOT ONLY BE
UNFAMILIAR WITH THE PROBLEMS OF THE SMALLER COUNTY, BUT THE INTERESTS
OF THE SMALLER COUNTIES MIGHT WELL BE TOTALLY SUBMERGED BY THE
INTERESTS OF THE LARGER COUNTIES WITH WHICH THEY ARE JOINED.  SINCE
REPRESENTATIVES REPRESENTING CONFLICTING INTERESTS MIGHT WELL PAY
GREATER ATTENTION TO THE VIEWS OF THE MAJORITY, THE MINORITY INTEREST
COULD BE DENIED ANY EFFECTIVE REPRESENTATION AT ALL.  ITS VOTES WOULD
NOT BE MERELY "DILUTED," AN INJURY WHICH THE COURT CONSIDERS OF
CONSTITUTIONAL DIMENSIONS, BUT RENDERED TOTALLY NUGATORY. 

THE FINDINGS OF THE DISTRICT COURT SPEAK FOR THEMSELVES: 

"THE HETEROGENEOUS CHARACTERISTICS OF COLORADO JUSTIFY GEOGRAPHIC
DISTRICTING FOR THE ELECTION OF THE MEMBERS OF ONE CHAMBER OF THE
LEGISLATURE.  IN NO OTHER WAY MAY REPRESENTATION BE AFFORDED TO INSULAR
MINORITIES.  WITHOUT SUCH DISTRICTING THE METROPOLITAN AREAS COULD
THEORETICALLY, AND NO DOUBT PRACTICALLY, DOMINATE BOTH CHAMBERS OF THE
LEGISLATURE. 

"  ...  THE REALITIES OF TOPOGRAPHIC CONDITIONS WITH THEIR RESULTING
EFFECT ON POPULATION MAY NOT BE IGNORED.  FOR AN EXAMPLE, IF THE RULE
OF EQUAL POPULATION DISTRICTS WAS TO BE ACCEPTED, COLORADO WOULD HAVE
ONE SENATOR FOR APPROXIMATELY EVERY 45,000 PERSONS.  TWO CONTIGUOUS
WESTERN REGION SENATORIAL DISTRICTS, NOS. 29 AND 37, HAVE A COMBINED
POPULATION OF 51,675 PERSONS INHABITING AN AREA OF 20,514 SQUARE
MILES.  THE DIVISION OF THIS AREA INTO TWO DISTRICTS DOES NOT OFFEND
ANY CONSTITUTIONAL PROVISIONS.  RATHER, IT IS A WISE RECOGNITION OF THE
PRACTICALITIES OF LIFE  ...  .    "WE ARE CONVINCED THAT THE
APPORTIONMENT OF THE SENATE BY AMENDMENT NO. 7 RECOGNIZES POPULATION AS
A PRIME, BUT NOT CONTROLLING, FACTOR AND GIVES EFFECT TO SUCH IMPORTANT
CONSIDERATIONS AS GEOGRAPHY, COMPACTNESS AND CONTIGUITY OF TERRITORY,
ACCESSIBILITY, OBSERVANCE OF NATURAL BOUNDARIES, CONFORMITY TO
HISTORICAL DIVISIONS SUCH AS COUNTY LINES AND PRIOR REPRESENTATION
DISTRICTS, AND 'A PROPER DIFFUSION OF POLITICAL INITIATIVE AS BETWEEN A
STATE'S THINLY POPULATED COUNTIES AND THOSE HAVING CONCENTRATED
MASSES.'"  219 F. SUPP., AT 932. 

FROM 1954 UNTIL THE ADOPTION OF AMENDMENT 7 IN 1962, THE ISSUE OF
APPORTIONMENT HAD BEEN THE SUBJECT OF INTENSE PUBLIC DEBATE.  THE
PRESENT APPORTIONMENT WAS PROPOSED AND SUPPORTED BY MANY OF COLORADO'S
LEADING CITIZENS.  THE FACTUAL DATA UNDERLYING THE APPORTIONMENT WERE
PREPARED BY THE WHOLLY INDEPENDENT DENVER RESEARCH INSTITUTE OF THE
UNIVERSITY OF DENVER.  FINALLY, THE APPORTIONMENT WAS ADOPTED BY A
POPULAR REFERENDUM IN WHICH NOT ONLY A 2-1 MAJORITY OF ALL THE VOTERS
IN COLORADO, BUT A MAJORITY IN EACH COUNTY, INCLUDING THOSE URBAN
COUNTIES ALLEGEDLY DISCRIMINATED AGAINST, VOTED FOR THE PRESENT PLAN IN
PREFERENCE TO AN ALTERNATIVE PROPOSAL PROVIDING FOR EQUAL
REPRESENTATION PER CAPITA IN BOTH LEGISLATIVE HOUSES.  AS THE DISTRICT
COURT SAID: 

"THE CONTENTION THAT THE VOTERS HAVE DISCRIMINATED AGAINST THEMSELVES
APPALLS RATHER THAN CONVINCES.  DIFFICULT AS IT MAY BE AT TIMES TO
UNDERSTAND MASS BEHAVIOR OF HUMAN BEINGS, A PROPER RECOGNITION OF THE
JUDICIAL FUNCTION PRECLUDES A COURT FROM HOLDING THAT THE FREE CHOICE
OF THE VOTERS BETWEEN TWO CONFLICTING THEORIES OF APPORTIONMENT IS
IRRATIONAL OR THE RESULT ARBITRARY."  IBID. 

THE PRESENT APPORTIONMENT, ADOPTED OVERWHELMINGLY BY THE PEOPLE IN A
1962 POPULAR REFERENDUM AS A STATE CONSTITUTIONAL AMENDMENT, IS
ENTIRELY RATIONAL, AND THE AMENDMENT BY ITS TERMS PROVIDES FOR KEEPING
THE APPORTIONMENT CURRENT.  (FN15)  THUS THE MAJORITY HAS CONSCIOUSLY
CHOSEN TO PROTECT THE MINORITY'S INTERESTS, AND UNDER THE LIBERAL
INITIATIVE PROVISIONS OF THE COLORADO CONSTITUTION, IT RETAINS THE
POWER TO REVERSE ITS DECISION TO DO SO.  THEREFORE, THERE CAN BE NO
QUESTION OF FRUSTRATION OF THE BASIC PRINCIPLE OF MAJORITY RULE. 

                   IV.

       NEW YORK. 

"  ...  CONSTITUTIONAL STATECRAFT OFTEN INVOLVES A DEGREE OF
PROTECTION FOR MINORITIES WHICH LIMITS THE PRINCIPLE OF MAJORITY RULE. 
PERFECT NUMERICAL EQUALITY IN VOTING RIGHTS WOULD BE ACHIEVED IF AN
ENTIRE STATE LEGISLATURE WERE ELECTED AT LARGE BUT THE DANGER IS TOO
GREAT THAT THE REMOTE AND LESS POPULATED SECTIONS WOULD BE NEGLECTED OR
THAT, IN THE EVENT OF A CONFLICT BETWEEN TWO PARTS OF THE STATE, THE
MORE POPULOUS REGION WOULD ELECT THE ENTIRE LEGISLATURE AND IN ITS
COUNCILS THE MINORITY WOULD NEVER BE HEARD. 

"DUE RECOGNITION OF GEOGRAPHIC AND OTHER MINORITY INTERESTS IS ALSO A
COMPREHENSIBLE REASON FOR REDUCING THE WEIGHT OF VOTES IN GREAT
CITIES.  IF SEVENTY PERCENT OF A STATE'S POPULATION LIVED IN A SINGLE
CITY AND THE REMAINDER WAS SCATTERED OVER WIDE COUNTRY AREAS AND SMALL
TOWNS, IT MIGHT BE REASONABLE TO GIVE THE CITY VOTERS SOMEWHAT SMALLER
REPRESENTATION THAN THAT TO WHICH THEY WOULD BE ENTITLED BY A STRICTLY
NUMERICAL APPORTIONMENT IN ORDER TO REDUCE THE DANGER OF TOTAL NEGLECT
OF THE NEEDS AND WISHES OF RURAL AREAS." 

THE ABOVE TWO PARAGRAPHS ARE FROM THE BRIEF WHICH THE UNITED STATES
FILED IN BAKER V. CARR, 369 U.S. 186.  (FN16)  IT WOULD BE DIFFICULT TO
FIND WORDS MORE APTLY TO DESCRIBE THE STATE OF NEW YORK, OR MORE
CLEARLY TO JUSTIFY THE SYSTEM OF LEGISLATIVE APPORTIONMENT WHICH THAT
STATE HAS CHOSEN. 

LEGISLATIVE APPORTIONMENT IN NEW YORK FOLLOWS A FORMULA WHICH IS
WRITTEN INTO THE NEW YORK CONSTITUTION AND WHICH HAS BEEN A PART OF ITS
FUNDAMENTAL LAW SINCE 1894.  THE APPORTIONMENT IS NOT A CRAZY QUILT; IT
IS RATIONAL, IT IS APPLIED SYSTEMATICALLY, AND IT IS KEPT REASONABLY
CURRENT.  THE FORMULA REFLECTS A POLICY WHICH ACCORDS MAJOR EMPHASIS TO
POPULATION, SOME EMPHASIS TO REGION AND COMMUNITY, AND A REASONABLE
LIMITATION UPON MASSIVE OVERCENTRALIZATION OF POWER.  IN ORDER TO
EFFECTUATE THIS POLICY, THE APPORTIONMENT FORMULA PROVIDES THAT EACH
COUNTY SHALL HAVE AT LEAST ONE REPRESENTATIVE IN THE ASSEMBLY, THAT THE
SMALLER COUNTIES SHALL HAVE SOMEWHAT GREATER REPRESENTATION IN THE
LEGISLATURE THAN REPRESENTATION BASED SOLELY ON NUMBERS WOULD ACCORD,
AND THAT SOME LIMITS BE PLACED ON THE REPRESENTATION OF THE LARGEST
COUNTIES IN ORDER TO PREVENT ONE MEGALOPOLIS FROM COMPLETELY DOMINATING
THE LEGISLATURE. 

NEW YORK IS NOT UNIQUE IN CONSIDERING FACTORS OTHER THAN POPULATION
IN ITS APPORTIONMENT FORMULA.  INDEED, THE INCLUSION OF SUCH OTHER
CONSIDERATIONS IS MORE THE RULE THAN THE EXCEPTION THROUGHOUT THE
STATES.  TWO-THIRDS OF THE STATES HAVE GIVEN EFFECT TO FACTORS OTHER
THAN POPULATION IN APPORTIONING REPRESENTATION IN BOTH HOUSES OF THEIR
LEGISLATURES, AND OVER FOUR-FIFTHS OF THE STATES GIVE EFFECT TO
NONPOPULATION FACTORS IN AT LEAST ONE HOUSE.  (FN17)  THE TYPICAL
RESTRICTIONS ARE THOSE LIKE NEW YORK'S AFFORDING MINIMAL REPRESENTATION
TO CERTAIN POLITICAL SUBDIVISIONS, OR PROHIBITING DISTRICTS COMPOSED OF
PARTS OF TWO OR MORE COUNTIES, OR REQUIRING DISTRICTS TO BE COMPOSED OF
CONTIGUOUS AND COMPACT TERRITORY, OR FIXING THE MEMBERSHIP OF THE
LEGISLATIVE BODY.  ALL OF THESE FACTORS TEND TO PLACE PRACTICAL
LIMITATIONS ON APPORTIONMENT ACCORDING TO POPULATION, EVEN IF THE BASIC
UNDERLYING SYSTEM IS ONE OF EQUAL POPULATION DISTRICTS FOR
REPRESENTATION IN ONE OR BOTH HOUSES OF THE LEGISLATURE. 

THAT THESE ARE RATIONAL POLICY CONSIDERATIONS CAN BE SEEN FROM EVEN A
CURSORY EXAMINATION OF NEW YORK'S POLITICAL MAKEUP.  IN NEW YORK MANY
OF THE INTERESTS WHICH A CITIZEN MAY WISH TO ASSERT THROUGH THE
LEGISLATIVE PROCESS ARE INTERESTS WHICH TOUCH ON HIS RELATION TO THE
GOVERNMENT OF HIS COUNTY AS WELL AS TO THAT OF THE STATE, AND
CONSEQUENTLY THESE INTERESTS ARE OFTEN PECULIAR TO THE CITIZENS OF ONE
COUNTY.  AS THE DISTRICT COURT FOUND, COUNTIES HAVE BEEN AN INTEGRAL
PART OF NEW YORK'S GOVERNMENTAL STRUCTURE SINCE EARLY COLONIAL TIMES,
AND THE MANY FUNCTIONS PERFORMED BY THE COUNTIES TODAY REFLECT BOTH THE
HISTORIC GRAVITATION TOWARD THE COUNTY AS THE CENTRAL UNIT OF POLITICAL
ACTIVITY AND THE REALISTIC FACT THAT THE COUNTY IS USUALLY THE MOST
EFFICIENT AND PRACTICAL UNIT FOR CARRYING OUT MANY GOVERNMENTAL
PROGRAMS.  (FN18) 

A POLICY GUARANTEEING MINIMUM REPRESENTATION TO EACH COUNTY IS
CERTAINLY RATIONAL, PARTICULARLY IN A STATE LIKE NEW YORK.  IT PREVENTS
LESS DENSELY POPULATED COUNTIES FROM BEING MERGED INTO MULTICOUNTY
DISTRICTS WHERE THEY WOULD RECEIVE NO EFFECTIVE REPRESENTATION AT ALL. 
FURTHER, IT MAY BE ONLY BY INDIVIDUAL COUNTY REPRESENTATION THAT THE
NEEDS AND INTERESTS OF ALL THE AREAS OF THE STATE CAN BE BROUGHT TO THE
ATTENTION OF THE LEGISLATIVE BODY.  THE RATIONALITY OF INDIVIDUAL
COUNTY REPRESENTATION BECOMES PARTICULARLY APPARENT IN STATES WHERE
LEGISLATIVE ACTION APPLICABLE ONLY TO ONE OR MORE PARTICULAR COUNTIES
IS THE PERMISSIBLE TRADITION. 

DESPITE THE RATIONALITY OF ACCORDING AT LEAST ONE REPRESENTATIVE TO
EACH COUNTY, IT IS CLEAR THAT SUCH A SYSTEM OF REPRESENTATION, COUPLED
WITH A PROVISION FIXING THE MAXIMUM NUMBER OF MEMBERS IN THE
LEGISLATIVE BODY - A NECESSITY IF THE BODY IS TO REMAIN SMALL ENOUGH
FOR MANAGEABLY EFFECTIVE ACTION - HAS THE RESULT OF CREATING SOME
POPULATION DISPARITIES AMONG DISTRICTS.  BUT SINCE THE DISPARITY FLOWS
FROM THE EFFECTUATION OF A RATIONAL STATE POLICY, THE MERE EXISTENCE OF
THE DISPARITY ITSELF CAN HARDLY BE CONSIDERED AN INVIDIOUS
DISCRIMINATION. 

IN ADDITION TO ENSURING MINIMUM REPRESENTATION TO EACH COUNTY, THE
NEW YORK APPORTIONMENT FORMULA, BY ALLOCATING SOMEWHAT GREATER
REPRESENTATION TO THE SMALLER COUNTIES WHILE PLACING LIMITATIONS ON THE
REPRESENTATION OF THE LARGEST COUNTIES, IS CLEARLY DESIGNED TO PROTECT
AGAINST OVERCENTRALIZATION OF POWER.  TO UNDERSTAND FULLY THE PRACTICAL
IMPORTANCE OF THIS CONSIDERATION IN NEW YORK, ONE MUST LOOK TO ITS
UNIQUE CHARACTERISTICS.  NEW YORK IS ONE OF THE FEW STATES IN WHICH THE
CENTRAL CITIES CAN ELECT A MAJORITY OF REPRESENTATIVES TO THE
LEGISLATURE.  AS THE DISTRICT COURT FOUND, THE 10 MOST POPULOUS
COUNTIES IN THE STATE CONTROL BOTH HOUSES OF THE LEGISLATURE UNDER THE
EXISTING APPORTIONMENT SYSTEM.  EACH OF THESE COUNTIES IS HEAVILY
URBAN; EACH IS IN A METROPOLITAN AREA.  TOGETHER THEY CONTAIN 73.5% OF
THE CITIZEN POPULATION, AND ARE REPRESENTED BY 65.5% OF THE SEATS IN
THE SENATE AND 62% OF THE SEATS IN THE ASSEMBLY.  MOREOVER, THE NINE
COUNTIES COMPRISING ONE METROPOLITAN AREA - NEW YORK CITY, NASSAU,
ROCKLAND, SUFFOLK AND WESTCHESTER - CONTAIN 63.2% OF THE TOTAL CITIZEN
POPULATION AND ELECT A CLEAR MAJORITY OF BOTH HOUSES OF THE LEGISLATURE
UNDER THE EXISTING SYSTEM WHICH THE COURT TODAY HOLDS INVALID. 
OBVIOUSLY, THEREFORE, THE EXISTING SYSTEM OF APPORTIONMENT CLEARLY
GUARANTEES EFFECTIVE MAJORITY REPRESENTATION AND CONTROL IN THE STATE
LEGISLATURE. 

BUT HIS IS NOT THE WHOLE STORY.  NEW YORK CITY, WITH ITS SEVEN
MILLION PEOPLE AND A BUDGET LARGER THAN THAT OF THE STATE, HAS, BY
VIRTUE OF ITS CONCENTRATION OF POPULATION, HOMOGENEITY OF INTEREST, AND
POLITICAL COHESIVENESS, ACQUIRED AN INSTITUTIONAL POWER AND POLITICAL
INFLUENCE OF ITS OWN HARDLY MEASURABLE SIMPLY BY COUNTING THE NUMBER OF
ITS REPRESENTATIVES IN THE LEGISLATURE.  ELIHU ROOT, A DELEGATE TO THE
NEW YORK CONSTITUTIONAL CONVENTION OF 1894, WHICH FORMULATED THE BASIC
STRUCTURE OF THE PRESENT APPORTIONMENT PLAN, MADE THIS VERY POINT AT
THAT TIME: 

"THE QUESTION IS WHETHER THIRTY SEPARATE CENTERS OF 38,606 EACH
SCATTERED OVER THE COUNTRY ARE TO BE COMPARED UPON THE BASIS OF
ABSOLUTE NUMERICAL EQUALITY, WITH ONE CENTER OF THIRTY TIMES 38,606 IN
ONE CITY, WITH ALL THE MULTIPLICATIONS OF POWER THAT COMES FROM
REPRESENTING A SINGLE INTEREST, STANDING TOGETHER ON ALL MEASURES
AGAINST A SCATTERED AND DISUNITED REPRESENTATION FROM THE THIRTY WIDELY
SEPARATED SINGLE CENTERS OF 38,606.  THIRTY MEN FROM ONE PLACE OWING
THEIR ALLEGIANCE TO ONE POLITICAL ORGANIZATION, REPRESENTING THE
INTEREST OF ONE COMMUNITY, VOTING TOGETHER, ACTING TOGETHER SOLIDLY;
WHY, THEY ARE WORTH DOUBLE THE SCATTERED ELEMENTS OF POWER COMING FROM
HUNDREDS OF MILES APART."  3 REVISED RECORD OF THE NEW YORK STATE
CONSTITITIONAL CONVENTION OF 1894, P. 1215. 

SURELY IT IS NOT IRRATIONAL FOR THE STATE OF NEW YORK TO BE
JUSTIFIABLY CONCERNED ABOUT BALANCING SUCH A CONCENTRATION OF POLITICAL
POWER, AND CERTAINLY THERE IS NOTHING IN OUR FEDERAL CONSTITUTION WHICH
PREVENTS A STATE FROM REASONABLY TRANSLATING SUCH A CONCERN INTO ITS
APPORTIONMENT FORMULA.  SEE MACDOUGALL V. GREEN, 335 U.S. 281. 

THE STATE OF NEW YORK IS LARGE IN AREA AND DIVERSE IN INTERESTS.  THE
HUDSON AND MOHAWK VALLEYS, THE FARM COMMUNITIES ALONG THE SOUTHERN
BELT, THE MANY SUBURBAN AREAS THROUGHOUT THE STATE, THE UPSTATE URBAN
AND INDUSTRIAL CENTERS, THE THOUSAND ISLANDS, THE FINGER LAKES, THE
BERKSHIRE HILLS, THE ADIRONDACKS - THE PEOPLE OF ALL THESE AND MANY
OTHER AREAS, WITH THEIR ASPIRATIONS AND THEIR INTERESTS, JUST AS SURELY
BELONG TO THE STATE AS DOES THE GIANT METROPOLIS WHICH IS NEW YORK
CITY.  WHAT THE STATE HAS DONE IS TO ADOPT A PLAN OF LEGISLATIVE
APPORTIONMENT WHICH IS DESIGNED IN A RATIONAL WAY TO ENSURE THAT
MINORITY VOICES MAY BE HEARD, BUT THAT THE WILL OF THE MAJORITY SHALL
PREVAIL. 

                                              V. 

IN THE ALLOCATION OF REPRESENTATION IN THEIR STATE LEGISLATURES,
COLORADO AND NEW YORK HAVE ADOPTED COMPLETELY RATIONAL PLANS WHICH
REFLECT AN INFORMED RESPONSE TO THEIR PARTICULARIZED CHARACTERISTICS
AND NEEDS.  THE PLANS ARE QUITE DIFFERENT, JUST AS COLORADO AND NEW
YORK ARE QUITE DIFFERENT.  BUT EACH STATE, WHILE CLEARLY ENSURING THAT
IN ITS LEGISLATIVE COUNCILS THE WILL OF THE MAJORITY OF THE ELECTORATE
SHALL RULE, HAS SOUGHT TO PROVIDE THAT NO IDENTIFIABLE MINORITY SHALL
BE COMPLETELY SILENCED OR ENGULFED.  THE COURT TODAY HOLDS
UNCONSTITUTIONAL THE CONSIDERED GOVERNMENTAL CHOICES OF THESE TWO
SOVEREIGN STATES.  BY CONTRAST, I BELIEVE THAT WHAT EACH STATE HAS
ACHIEVED FULLY COMPORTS WITH THE LETTER AND THE SPIRIT OF OUR
CONSTITITONAL TRADITIONS. 

I WOULD AFFIRM THE JUDGMENTS IN BOTH CASES. 

FN1  SEE REYNOLDS V. SIMS, ANTE, PP. 554-555, CITING:  EX PARTE
YARBROUGH, 110 U.S. 651; UNITED STATES V. MOSLEY, 238 U.S. 383; GUINN
V. UNITED STATES, 238 U.S. 347; LANE V. WILSON, 307 U.S. 268; UNITED
STATES V. CLASSIC, 313 U.S. 299; EX PARTE SIEBOLD, 100 U.S. 371; UNITED
STATES V. SAYLOR, 322 U.S. 385; GOMILLION V. LIGHTFOOT, 364 U.S. 339;
NIXON V. HERNDON, 273 U.S. 536; NIXON V. CONDON, 286 U.S. 73; SMITH V.
ALLWRIGHT, 321 U.S. 649; TERRY V. ADAMS, 345 U.S. 461. 

FN2  "ONCE THE GEOGRAPHICAL UNIT FOR WHICH A REPRESENTATIVE IS TO BE
CHOSEN IS DESIGNATED, ALL WHO PARTICIPATE IN THE ELECTION ARE TO HAVE
AN EQUAL VOTE  ...  ."  GRAY V. SANDERS, 372 U.S., AT 379.  THE COURT
CAREFULLY EMPHASIZED IN GRAY THAT THE CASE DID NOT "INVOLVE A QUESTION
OF THE DEGREE TO WHICH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT LIMITS THE AUTHORITY OF A STATE LEGISLATURE IN DESIGNING THE
GEOGRAPHICAL DISTRICTS FROM WHICH REPRESENTATIVES ARE CHOSEN  ...  FOR
THE STATE LEGISLATURE  ...  ."  372 U.S., AT 376. 

FN3  IN WESBERRY V. SANDERS THE COURT HELD THAT ARTICLE I OF THE
CONSTITUTION (WHICH ORDAINED THAT MEMBERS OF THE UNITED STATES SENATE
SHALL REPRESENT GROSSLY DISPARATE CONSTITUENCIES IN TERMS OF NUMBERS,
U.S. CONST., ART. I, SEC. 3, CL. 1; SEE U.S. CONST., AMEND. XVII)
ORDAINED THAT MEMBERS OF THE UNITED STATES HOUSE OF REPRESENTATIVES
SHALL REPRESENT CONSTITUENCIES AS NEARLY AS PRACTICABLE OF EQUAL SIZE
IN TERMS OF NUMBERS.  U.S. CONST., ART. I, SEC. 2.    FN4  SEE REYNOLDS
V. SIMS, ANTE, P. 568. 

FN5  ID., AT 560-561. 

FN6  BAKER V. CARR, 369 U.S. 186, 266, 301 (FRANKFURTER, J.,
DISSENTING). 

SEE ALSO THE EXCELLENT ANALYSIS OF THE RELEVANT HISTORICAL MATERIALS
CONTAINED IN MR. JUSTICE HARLAN'S DISSENTING OPINION FILED THIS DAY IN
THESE AND THEIR COMPANION CASES, ANTE, P. 589. 

FN7  REYNOLDS V. SIMS, ANTE, P. 567.    FN8  ON THE BASIS OF THE 1960
CENSUS, EACH SENATOR FROM NEVADA REPRESENTS FEWER THAN 150,000
CONSTITUENTS, WHILE EACH SENATOR FROM CALIFORNIA REPRESENTS ALMOST
8,000,000.  AS WILL BECOME CLEAR LATER IN THIS OPINION, I DO NOT MEAN
TO IMPLY THAT A STATE LEGISLATIVE APPORTIONMENT SYSTEM MODELED
PRECISELY UPON THE FEDERAL CONGRESS WOULD NECESSARILY BE
CONSTITUTIONALLY VALID IN EVERY STATE. 

FN9  IT HAS BEEN THE BROAD CONSENSUS OF THE STATE AND FEDERAL COURTS
WHICH, SINCE BAKER V. CARR, 369 U.S. 186, HAVE BEEN FACED WITH THE
BASIC QUESTION INVOLVED IN THESE CASES, THAT THE RULE WHICH THE COURT
ANNOUNCES TODAY HAS NO BASIS IN THE CONSTITUTION AND NO ROOT IN
REASON.  SEE E.G., SOBEL V. ADAMS, 208 F. SUPP. 316, 214 F. SUPP. 811;
THIGPEN V. MEYERS, 211 F. SUPP. 826; SIMS V. FRINK, 205 F. SUPP. 245,
208 F. SUPP. 431; W.M.C.A., INC., V. SIMON, 298 F. SUPP. 368; BAKER V.
CARR, 206 F. SUPP. 341; MANN V. DAVIS, 213 F. SUPP. 577; TOOMBS V.
FORTSON, 205 F. SUPP. 248; DAVIS V. SYNHORST, 217 F. SUPP. 492; NOLAN
V. RHODES, 218 F. SUPP. 953; MOSS V. BURKHART, 207 F. SUPP. 885; LISCO
V. LOVE, 219 F. SUPP. 922; WISCONSIN V. ZIMMERMAN, 209 F. SUPP. 183;
MARSHALL V. HARE, 227 F. SUPP. 989; HEARNE V. SMYLIE, 225 F. SUPP. 645;
LUND V. MATHAS, 145 SO. 2D 871 (FLA.); CAESAR V. WILLIAMS, 84 IDAHO
254, 371 P.2D 241; MARYLAND COMMITTEE FOR FAIR REPRESENTATION V. TAWES,
228 MD. 412, 180 A.2D 656, 182 A.2D 877, 229 MD. 406, 184 A.2D 715;
LEVITT V. MAYNARD, 104 N.H. 243, 182 A.2D 897; JACKMAN V. BODINE, 78
N.J. SUPER.  414, 188 A.2D 642; SWEENEY V. NOTTE, - R.I. - , 183 A.2D
296; MIKELL V. ROUSSEAU, 123 VT. 139, 183 A.2D 817. 

THE WRITINGS OF SCHOLARS AND COMMENTATORS HAVE REFLECTED THE SAME
VIEW.  SEE, E.G., DE GRAZIA, APPORTIONMENT AND REPRESENTATIVE
GOVERNMENT; NEAL, BAKER V. CARR:  POLITICS IN SEARCH OF LAW, 1962
SUPREME COURT REVIEW 252; DIXON, LEGISLATIVE APPORTIONMENT AND THE
FEDERAL CONSTITUTION, 27 LAW & CONTEMP.  PROB.  329; DIXON,
APPORTIONMENT STANDARDS AND JUDICIAL POWER, 38 NOTRE DAME LAW.  367;
ISRAEL, ON CHARTING A COURSE THROUGH THE MATHEMATICAL QUAGMIRE:  THE
FUTURE OF BAKER V. CARR, 61 MICH. L. REV. 107; ISRAEL, NONPOPULATION
FACTORS RELEVANT TO AN ACCEPTABLE STANDARD OF APPORTIONMENT, 38 NOTRE
DAME LAW.  499; LUCAS, LEGISLATIVE APPORTIONMENT AND REPRESENTATIVE
GOVERNMENT:  THE MEANING OF BAKER V. CARR, 61 MICH. L. REV. 711;
FRIEDELBAUM, BAKER V. CARR:  THE NEW DOCTRINE OF JUDICIAL INTERVENTION
AND ITS IMPLICATIONS FOR AMERICAN FEDERALISM, 29 U. OF CHI.  L. REV.
673; BICKEL, THE DURABILITY OF COLEGROVE V. GREEN, 72 YALE L.J. 39;
MCCLOSKEY, THE REAPPORTIONMENT CASE, 76 HARV. L. REV. 54; FREUND, NEW
VISTAS IN CONSTITUTIONAL LAW, 112 U. PA. L. REV. 631, 639; COMMENT,
BAKER V. CARR AND LEGISLATIVE APPORTIONMENTS:  A PROBLEM OF STANDARDS,
72 YALE L.J. 968. 

FN10  SEE, E.G., DE GRAZIA, APPORTIONMENT AND REPRESENTATIVE
GOVERNMENT, PP. 19-63; ROSS, ELECTIONS AND ELECTORS, PP. 21-127;
LAKEMAN AND LAMBERT, VOTING IN DEMOCRACIES, PP. 19-37, 149-156; HOGAN,
ELECTION AND REPRESENTATION; DAHL, A PREFACE TO DEMOCRATIC THEORY, PP.
63-84, 124-151. 

FN11  SEE, E.G., SANDALOW, THE LIMITS OF MUNICIPAL POWER UNDER HOME
RULE:  A ROLE FOR THE COURTS, 48 MINN. L. REV. 643; KLEMME, THE POWERS
OF HOME RULE CITIES IN COLORADO, 36 U. COLO. L. REV. 321. 

FN12  EVEN WITH LEGISLATIVE DISTRICTS OF EXACTLY EQUAL VOTER
POPULATION, 26% OF THE ELECTORATE (A BARE MAJORITY OF THE VOTERS IN A
BARE MAJORITY OF THE DISTRICTS) CAN, AS A MATTER OF THE KIND OF
THEORETICAL MATHEMATICS EMBRACED BY THE COURT, ELECT A MAJORITY OF THE
LEGISLATURE UNDER OUR SIMPLE MAJORITY ELECTORAL SYSTEM.  THUS, THE
COURT'S CONSTITUTIONAL RULE PERMITS MINORITY RULE. 

STUDENTS OF THE MECHANICS OF VOTING SYSTEMS TELL US THAT IF ALL THAT
MATTERS IS THAT VOTES COUNT EQUALLY, THE BEST VOTE-COUNTING ELECTORAL
SYSTEM IS PROPORTIONAL REPRESENTATION IN STATE-WIDE ELECTIONS.  SEE,
E.G., LAKEMAN AND LAMBERT, SUPRA, N. 10.  IT IS JUST BECAUSE ELECTORAL
SYSTEMS ARE INTENDED TO SERVE FUNCTIONS OTHER THAN SATISFYING
MATHEMATICAL THEORIES, HOWEVER, THAT THE SYSTEM OF PROPORTIONAL
REPRESENTATION HAS NOT BEEN WIDELY ADOPTED.  IBID. 

FN13  IN BAKER V. CARR, 369 U.S. 186, IT WAS ALLEGED THAT A
SUBSTANTIAL NUMERICAL MAJORITY HAD AN EFFECTIVE VOICE IN NEITHER
LEGISLATIVE HOUSE OF TENNESSEE.  FAILURE TO REAPPORTION FOR 60 YEARS IN
FLAGRANT VIOLATION OF THE TENNESSEE CONSTITUTION AND IN THE FACE OF
INTERVENING POPULATION GROWTH AND MOVEMENT HAD CREATED ENORMOUS
DISPARITIES AMONG LEGISLATIVE DISTRICTS - EVEN AMONG DISTRICTS
SEEMINGLY IDENTICAL IN COMPOSITION - WHICH, IT WAS ALLEGED, PERPETUATED
MINORITY RULE AND COULD NOT BE JUSTIFIED ON ANY RATIONAL BASIS.  IT WAS
FURTHER ALLEGED THAT ALL OTHER MEANS OF MODIFYING THE APPORTIONMENT HAD
PROVEN FUTILE, AND THAT THE TENNESSEE LEGISLATORS HAD SUCH A VESTED
INTEREST IN MAINTAINING THE STATUS QUO THAT REAPPORTIONMENT BY THE
LEGISLATURE WAS NOT A PRACTICAL POSSIBILITY.  SEE GENERALLY, THE
CONCURRING OPINION OF MR. JUSTICE CLARK, 369 U.S., AT 251. 

FN14  THE THEORETICAL FIGURE IS ARRIVED AT BY PLACING THE LEGISLATIVE
DISTRICTS FOR EACH HOUSE IN RANK ORDER OF POPULATION, AND BY COUNTING
DOWN THE SMALLEST POPULATION END OF THE LIST A SUFFICIENT DISTANCE TO
ACCUMULATE THE MINIMUM POPULATION WHICH COULD ELECT A MAJORITY OF THE
HOUSE IN QUESTION.   IT IS A MEANINGLESS ABSTRACTION AS APPLIED TO A
MULTIMEMBERED BODY BECAUSE THE FACTORS OF POLITICAL PARTY ALIGNMENT AND
INTEREST REPRESENTATION MAKE SUCH THEORETICAL BLOC VOTING A PRACTICAL
IMPOSSIBILITY.  FOR EXAMPLE, 31,000,000 PEOPLE IN THE 26 LEAST POPULOUS
STATES REPRESENTING ONLY 17% OF UNITED STATES POPULATION HAVE 52% OF
THE SENATORS IN THE UNITED STATES SENATE.  BUT NO ONE CONTENDS THAT
THIS BLOC CONTROLS THE SENATE'S LEGISLATIVE PROCESS. 

FN15  WITHIN THE LAST 12 YEARS, THE PEOPLE OF MICHIGAN, CALIFORNIA,
WASHINGTON, AND NEBRASKA (UNICAMERAL LEGISLATURE) HAVE EXPRESSED THEIR
WILL IN POPULAR REFERENDA IN FAVOR OF APPORTIONMENT PLANS DEPARTING
FROM THE COURT'S RULE.  SEE DIXON, 38 NOTRE DAME LAW., SUPRA, AT 383
385. 

FN16  BRIEF FOR THE UNITED STATES AS AMICUS CURIAE ON REARGUMENT, NO.
6, 1961 TERM, PP. 29-30. 

THE SOLICITOR GENERAL, APPEARING AS AMICUS IN THE PRESENT CASES,
DECLINED TO URGE THIS COURT TO ADOPT THE RULE OF PER CAPITA EQUALITY IN
BOTH HOUSES, STATING THAT "SUCH AN INTERPRETATION WOULD PRESS THE EQUAL
PROTECTION CLAUSE TO AN EXTREME, AS APPLIED TO STATE LEGISLATIVE
APPORTIONMENT, WOULD REQUIRE RADICAL CHANGES IN THREE-QUARTERS OF THE
STATE GOVERNMENTS, AND WOULD ELIMINATE THE OPPORTUNITIES FOR LOCAL
VARIATION."  BRIEF FOR THE UNITED STATES AS AMICUS CURIAE, NO. 508,
1963 TERM, P. 32. 

FN17  SEE DIXON, 38 NOTRE DAME LAW., SUPRA, AT 399. 

FN18  THE FOLLOWING EXCERPTS FROM THE BRIEF OF THE ATTORNEY GENERAL
OF NEW YORK IN THIS CASE ARE INSTRUCTIVE: 

"FOR EXAMPLE, STATE AID IS ADMINISTERED BY THE COUNTIES IN THE
FOLLOWING AREAS:  EDUCATIONAL EXTENSION WORK (N.Y. EDUCATION LAW SECS.
1104, 1113), COMMUNITY COLLEGES (N.Y. EDUCATION LAW SECS. 6301, 6302,
6304), ASSISTANCE TO PHYSICALLY HANDICAPPED CHILDREN (N.Y. EDUCATION
LAW SEC. 4403), SOCIAL WELFARE SUCH AS MEDICAL AND OTHER AID FOR THE
AGED, THE BLIND, DEPENDENT CHILDREN, THE DISABLED, AND OTHER NEEDY
PERSONS (N.Y. SOCIAL WELFARE LAW SECS.  153, 154, 257, 409), PUBLIC
HEALTH (N.Y. PUBLIC HEALTH LAW SECS. 608, 620, 636, 650, 660), MENTAL
HEALTH (N.Y. MENTAL HYGIENE LAW, ART. 8-A, SEC. 191-A), PROBATION WORK
(N.Y.  CORRECTION LAW SEC. 14-A), HIGHWAY CONSTRUCTION, IMPROVEMENT AND
MAINTENANCE (N.Y.  HIGHWAY LAW SECS. 12, 112, 112-A, 279), CONSERVATION
(N.Y. COUNTY LAW SECS. 219, 299-W, N.Y. CONSERVATION LAW SECS. 205,
879), AND CIVIL DEFENSE PREPARATIONS (STATE DEFENSE EMERGENCY ACT SECS.
23-B, 25-A). 

"COUNTY GOVERNMENTS, ARE, OF COURSE, FAR MORE THAN INSTRUMENTALITIES
FOR THE ADMINISTRATION OF STATE AID.  THEY HAVE EXTENSIVE POWERS TO
ADOPT, AMEND OR REPEAL LOCAL LAWS AFFECTING THE COUNTY (N.Y. COUNTY LAW
SECS. 301-309), AND ALSO PLAY A VITAL PART IN THE ENACTMENT OF STATE
LAWS WHICH AFFECT ONLY A PARTICULAR COUNTY OR COUNTIES (SEE N.Y.
CONSTITUTION, ART. IX, SECS. 1, 2).  THE ENACTMENT IN 1959 OF A NEW
COUNTY CHARTER LAW (N.Y. COUNTY LAW, ART. 6-A), PROVIDING OPPORTUNITY
FOR THE FUNDAMENTAL REORGANIZATION OF COUNTY GOVERNMENTS BY COUNTY
RESIDENTS, HAS GIVEN THE COUNTIES AN EVEN GREATER ROLE TO PLAY IN THE
SOCIAL, ECONOMIC AND POLITICAL LIFE OF MODERN NEW YORK."  BRIEF FOR
APPELLEES SECRETARY OF STATE AND ATTORNEY GENERAL, NO. 20, 1963 TERM,
PP. 42-43. 
..END :

















MALLOY V. HOGAN 378 U.S. 1 


NO. 110.  ARGUED MARCH 5, 1964.  - DECIDED JUNE 15, 1964.  - 150 CONN.
220, 187 A.2D 744, REVERSED. 


PETITIONER, WHO WAS ON PROBATION AFTER PLEADING GUILTY TO A GAMBLING
MISDEMEANOR, WAS ORDERED TO TESTIFY BEFORE A REFEREE APPOINTED BY A
STATE COURT TO INVESTIGATE GAMBLING AND OTHER CRIMINAL ACTIVITIES.  HE
REFUSED TO ANSWER QUESTIONS ABOUT THE CIRCUMSTANCES OF HIS ARREST AND
CONVICTION ON THE GROUND THAT THE ANSWERS MIGHT INCRIMINATE HIM. 
ADJUDGED IN CONTEMPT AND COMMITTED TO PRISON UNTIL HE ANSWERED, HE
FILED AN APPLICATION FOR WRIT OF HABEAS CORPUS, WHICH THE HIGHEST STATE
COURT DENIED.  IT RULED THAT PETITIONER WAS PROTECTED AGAINST
PROSECUTION GROWING OUT OF HIS REPLIES TO ALL BUT ONE QUESTION, AND
THAT AS TO THAT QUESTION HIS FAILURE TO EXPLAIN HOW HIS ANSWER WOULD
INCRIMINATE HIM NEGATED HIS CLAIM TO THE PROTECTION OF THE PRIVILEGE
UNDER STATE LAW.  HELD: 

1.  THE FOURTEENTH AMENDMENT PROHIBITS STATE INFRINGEMENT OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION JUST AS THE FIFTH AMENDMENT
PREVENTS THE FEDERAL GOVERNMENT FROM DENYING THE PRIVILEGE.  P. 8. 

2.  IN APPLYING THE PRIVILEGE AGAINST SELF-INCRIMINATION, THE SAME
STANDARDS DETERMINE WHETHER AN ACCUSED'S SILENCE IS JUSTIFIED
REGARDLESS OF WHETHER IT IS A FEDERAL OR STATE PROCEEDING AT WHICH HE
IS CALLED TO TESTIFY.  P. 11. 

3.  THE PRIVILEGE IS AVAILABLE TO A WITNESS IN A STATUTORY INQUIRY AS
WELL AS TO A DEFENDANT IN A CRIMINAL PROSECUTION.  P. 11. 

4.  PETITIONER'S CLAIM OF PRIVILEGE AS TO ALL THE QUESTIONS SHOULD
HAVE BEEN UPHELD, SINCE IT WAS EVIDENT FROM THE IMPLICATION OF EACH
QUESTION IN THE SETTING IN WHICH IT WAS ASKED, THAT A RESPONSE OR AN
EXPLANATION WHY IT COULD NOT BE ANSWERED MIGHT BE DANGEROUS BECAUSE
INJURIOUS DISCLOSURE WOULD RESULT.  HOFFMAN V. UNITED STATES, 341 U.S.
479, FOLLOWED.  PP. 11-14. 

MALLOY V. HOGAN, SHERIFF. 

CERTIORARI TO THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE ASKED TO RECONSIDER PRIOR DECISIONS HOLDING THAT
THE PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT SAFEGUARDED AGAINST
STATE ACTION BY THE FOURTEENTH AMENDMENT.  TWINING V. NEW JERSEY, 211
U.S. 78; ADAMSON V. CALIFORNIA, 332 U.S. 46.  (FN1) 

THE PETITIONER WAS ARRESTED DURING A GAMBLING RAID IN 1959 BY
HARTFORD, CONNECTICUT, POLICE.  HE PLEADED GUILTY TO THE CRIME OF POOL
SELLING, A MISDEMEANOR, AND WAS SENTENCED TO ONE YEAR IN JAIL AND FINED
$500.  THE SENTENCE WAS ORDERED TO BE SUSPENDED AFTER 90 DAYS, AT WHICH
TIME HE WAS TO BE PLACED ON PROBATION FOR TWO YEARS.  ABOUT 16 MONTHS
AFTER HIS GUILTY PLEA, PETITIONER WAS ORDERED TO TESTIFY BEFORE A
REFEREE APPOINTED BY THE SUPERIOR COURT OF HARTFORD COUNTY TO CONDUCT
AN INQUIRY INTO ALLEGED GAMBLING AND OTHER CRIMINAL ACTIVITIES IN THE
COUNTY.  THE PETITIONER WAS ASKED A NUMBER OF QUESTIONS RELATED TO
EVENTS SURROUNDING HIS ARREST AND CONVICTION.  HE REFUSED TO ANSWER ANY
QUESTION "ON THE GROUNDS IT MAY TEND TO INCRIMINATE ME."  THE SUPERIOR
COURT ADJUDGED HIM IN CONTEMPT, AND COMMITTED HIM TO PRISON UNTIL HE
WAS WILLING TO ANSWER THE QUESTIONS.  PETITIONER'S APPLICATION FOR A
WRIT OF HABEAS CORPUS WAS DENIED BY THE SUPERIOR COURT, AND THE
CONNECTICUT SUPREME COURT OF ERRORS AFFIRMED.  150 CONN. 220, 187 A.2D
744.  THE LATTER COURT HELD THAT THE FIFTH AMENDMENT'S PRIVILEGE
AGAINST SELF-INCRIMINATION WAS NOT AVAILABLE TO A WITNESS IN A STATE
PROCEEDING, THAT THE FOURTEENTH AMENDMENT EXTENDED NO PRIVILEGE TO HIM,
AND THAT THE PETITIONER HAD NOT PROPERLY INVOKED THE PRIVILEGE
AVAILABLE UNDER THE CONNECTICUT CONSTITUTION.  WE GRANTED CERTIORARI. 
373 U.S. 948.  WE REVERSE.  WE HOLD THAT THE FOURTEENTH AMENDMENT
GUARANTEED THE PETITIONER THE PROTECTION OF THE FIFTH AMENDMENT'S
PRIVILEGE AGAINST SELF-INCRIMINATION, AND THAT UNDER THE APPLICABLE
FEDERAL STANDARD, THE CONNECTICUT SUPREME COURT OF ERRORS ERRED IN
HOLDING THAT THE PRIVILEGE WAS NOT PROPERLY INVOKED. 

THE EXTENT TO WHICH THE FOURTEENTH AMENDMENT PREVENTS STATE INVASION
OF RIGHTS ENUMERATED IN THE FIRST EIGHT AMENDMENTS HAS BEEN CONSIDERED
IN NUMEROUS CASES IN THIS COURT SINCE THE AMENDMENT'S ADOPTION IN
1868.  ALTHOUGH MANY JUSTICES HAVE DEEMED THE AMENDMENT TO INCORPORATE
ALL EIGHT OF THE AMENDMENTS,  (FN2)  THE VIEW WHICH HAS THUS FAR
PREVAILED DATES FROM THE DECISION IN 1867 IN CHICAGO, B.&Q.R. CO. V.
CHICAGO, 166 U.S. 226, WHICH HELD THAT THE DUE PROCESS CLAUSE REQUIRES
THE STATES TO PAY JUST COMPENSATION FOR PRIVATE PROPERTY TAKEN FOR
PUBLIC USE.  (FN3)  IT WAS ON THE AUTHORITY OF THAT DECISION THAT THE
COURT SAID IN 1908 IN TWINING V. NEW JERSEY, SUPRA, THAT "IT IS
POSSIBLE THAT SOME OF THE PERSONAL RIGHTS SAFEGUARDED BY THE FIRST
EIGHT AMENDMENTS AGAINST NATIONAL ACTION MAY ALSO BE SAFEGUARDED
AGAINST STATE ACTION, BECAUSE A DENIAL OF THEM WOULD BE A DENIAL OF DUE
PROCESS OF LAW."  211 U.S., AT 99. 

THE COURT HAS NOT HESITATED TO RE-EXAMINE PAST DECISIONS ACCORDING
THE FOURTEENTH AMENDMENT A LESS CENTRAL ROLE IN THE PRESERVATION OF
BASIC LIBERTIES THAN THAT WHICH WAS CONTEMPLATED BY ITS FRAMERS WHEN
THEY ADDED THE AMENDMENT TO OUR CONSTITUTIONAL SCHEME.  THUS, ALTHOUGH
THE COURT AS LATE AS 1922 SAID THAT "NEITHER THE FOURTEENTH AMENDMENT
NOR ANY OTHER PROVISION OF THE CONSTITUTION OF THE UNITED STATES
IMPOSES UPON THE STATES ANY RESTRICTIONS ABOUT 'FREEDOM OF SPEECH'  ...
," PRUDENTIAL INS. CO. V. CHEEK, 259 U.S. 530, 543, THREE YEARS LATER
GITLOW V. NEW YORK, 268 U.S. 652, INITIATED A SERIES OF DECISIONS WHICH
TODAY HOLD IMMUNE FROM STATE INVASION EVERY FIRST AMENDMENT PROTECTION
FOR THE CHERISHED RIGHTS OF MIND AND SPIRIT - THE FREEDOMS OF SPEECH,
PRESS, RELIGION, ASSEMBLY, ASSOCIATION, AND PETITION FOR REDRESS OF
GRIEVANCES.  (FN4) 

SIMILARLY, PALKO V. CONNECTICUT, 302 U.S. 319, DECIDED IN 1937,
SUGGESTED THAT THE RIGHTS SECURED BY THE FOURTH AMENDMENT WERE NOT
PROTECTED AGAINST STATE ACTION, CITING, 302 U.S., AT 324, THE STATEMENT
OF THE COURT IN 1914 IN WEEKS V. UNITED STATES, 232 U.S. 383, 398, THAT
"THE FOURTH AMENDMENT IS NOT DIRECTED TO INDIVIDUAL MISCONDUCT OF STATE
OFFICIALS."  IN 1961, HOWEVER, THE COURT HELD THAT IN THE LIGHT OF
LATER DECISIONS,  (FN5)  IT WAS TAKEN AS SETTLED THAT "  ...  THE
FOURTH AMENDMENT'S RIGHT OF PRIVACY HAS BEEN DECLARED ENFORCEABLE
AGAINST THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH
...  ."  MAPP V. OHIO, 367 U.S. 643, 655.  AGAIN, ALTHOUGH THE COURT
HELD IN 1942 THAT IN A STATE PROSECUTION FOR A NONCAPITAL OFFENSE,
"APPOINTMENT OF COUNSEL IS NOT A FUNDAMENTAL RIGHT," BETTS V. BRADY,
316 U.S. 455, 471; CF. POWELL V. ALABAMA, 287 U.S. 45, ONLY LAST TERM
THIS DECISION WAS RE-EXAMINED AND IT WAS HELD THAT PROVISION OF COUNSEL
IN ALL CRIMINAL CASES WAS "A FUNDAMENTAL RIGHT, ESSENTIAL TO A FAIR
TRIAL," AND THUS WAS MADE OBLIGATORY ON THE STATES BY THE FOURTEENTH
AMENDMENT.  GIDEON V. WAINWRIGHT, 372 U.S. 335, 343-344.  (FN6) 

WE HOLD TODAY THAT THE FIFTH AMENDMENT'S EXCEPTION FROM COMPULSORY
SELF-INCRIMINATION IS ALSO PROTECTED BY THE FOURTEENTH AMENDMENT
AGAINST ABRIDGMENT BY THE STATES.  DECISIONS OF THE COURT SINCE TWINING
AND ADAMSON HAVE DEPARTED FROM THE CONTRARY VIEW EXPRESSED IN THOSE
CASES.  WE DISCUSS FIRST THE DECISIONS WHICH FORBID THE USE OF COERCED
CONFESSIONS IN STATE CRIMINAL PROSECUTIONS. 

BROWN V. MISSISSIPPI, 297 U.S. 278, WAS THE FIRST CASE IN WHICH THE
COURT HELD THAT THE DUE PROCESS CLAUSE PROHIBITED THE STATES FROM USING
THE ACCUSED'S COERCED CONFESSIONS AGAINST HIM.  THE COURT IN BROWN FELT
IMPELLED, IN LIGHT OF TWINING, TO SAY THAT ITS CONCLUSION DID NOT
INVOLVE THE PRIVILEGE AGAINST SELF-INCRIMINATION.  "COMPULSION BY
TORTURE TO EXTORT A CONFESSION IS A DIFFERENT MATTER."  297 U.S., AT
285.  BUT THIS DISTINCTION WAS SOON ABANDONED, AND TODAY THE
ADMISSIBILITY OF A CONFESSION IN A STATE CRIMINAL PROSECUTION IS TESTED
BY THE SAME STANDARD APPLIED IN FEDERAL PROSECUTIONS SINCE 1897, WHEN,
IN BRAM V. UNITED STATES, 168 U.S. 532, THE COURT HELD THAT "IN
CRIMINAL TRIALS, IN THE COURTS OF THE UNITED STATES, WHEREVER A
QUESTION ARISES WHETHER A CONFESSION IS INCOMPETENT BECAUSE NOT
VOLUNTARY, THE ISSUE IS CONTROLLED BY THAT PORTION OF THE FIFTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, COMMANDING THAT NO
PERSON 'SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF.'"  ID., AT 542.  UNDER THIS TEST, THE CONSTITUTIONAL INQUIRY
IS NOT WHETHER THE CONDUCT OF STATE OFFICERS IN OBTAINING THE
CONFESSION WAS SHOCKING, BUT WHETHER THE CONFESSION WAS "FREE AND
VOLUNTARY:  THAT IS, IT MUST NOT BE EXTRACTED BY ANY SORT OF THREATS OR
VIOLENCE, NOR OBTAINED BY ANY DIRECT OR IMPLIED PROMISES, HOWEVER
SLIGHT, NOR BY THE EXERTION OF ANY IMPROPER INFLUENCE  ...  ."  ID., AT
542-543; SEE ALSO HARDY V. UNITED STATES, 186 U.S.  224, 229; WAN V.
UNITED STATES, 266 U.S. 1, 14; SMITH V. UNITED STATES, 348 U.S. 147,
150.  IN OTHER WORDS THE PERSON MUST NOT HAVE BEEN COMPELLED TO
INCRIMINATE HIMSELF.  WE HAVE HELD INADMISSIBLE EVEN A CONFESSION
SECURED BY SO MILD A WHIP AS THE REFUSAL, UNDER CERTAIN CRICUMSTANCES,
TO ALLOW A SUSPECT TO CALL HIS WIFE UNTIL HE CONFESSED.  HAYNES V.
WASHINGTON, 373 U.S. 503. 

THE MARKED SHIFT TO THE FEDERAL STANDARD IN STATE CASES BEGAN WITH
LISENBA V. CALIFORNIA, 314 U.S. 219, WHERE THE COURT SPOKE OF THE
ACCUSED'S "FREE CHOICE TO ADMIT, TO DENY, OR TO REFUSE TO ANSWER." 
ID., AT 241.  SEE ASHCRAFT V. TENNESSEE, 322 U.S. 143; MALINSKI V. NEW
YORK, 324 U.S. 401; SPANO V. NEW YORK, 360 U.S. 315; LYNUMN V.
ILLINOIS, 372 U.S. 528; HAYNES V. WASHINGTON, 373 U.S. 503.  THE SHIFT
REFLECTS RECOGNITION THAT THE AMERICAN SYSTEM OF CRIMINAL PROSECUTION
IS ACCUSATORIAL, NOT INQUISITORIAL, AND THAT THE FIFTH AMENDMENT
PRIVILEGE IS ITS ESSENTIAL MAINSTAY.  ROGERS V. RICHMOND, 365 U.S. 534,
541.  GOVERNMENTS, STATE AND FEDERAL, ARE THUS CONSTITUTIONALLY
COMPELLED TO ESTABLISH GUILT BY EVIDENCE INDEPENDENTLY AND FREELY
SECURED, AND MAY NOT BY COERCION PROVE A CHARGE AGAINST AN ACCUSED OUT
OF HIS OWN MOUTH.  SINCE THE FOURTEENTH AMENDMENT PROHIBITS THE STATES
FROM INDUCING A PERSON TO CONFESS THROUGH "SYMPATHY FALSELY AROUSED,"
SPANO V. NEW YORK, SUPRA, AT 323, OR OTHER LIKE INDUCEMENT FAR SHORT OF
"COMPULSION BY TORTURE," HAYNES V. WASHINGTON, SUPRA, IT FOLLOWS A
FORTIORI THAT IT ALSO FORBIDS THE STATES TO RESORT TO IMPRISONMENT, AS
HERE, TO COMPEL HIM TO ANSWER QUESTIONS THAT MIGHT INCRIMINATE HIM. 
THE FOURTEENTH AMENDMENT SECURES AGAINST STATE INVASION THE SAME
PRIVILEGE THAT THE FIFTH AMENDMENT GUARANTEES AGAINST FEDERAL
INFRINGEMENT - THE RIGHT OF A PERSON TO REMAIN SILENT UNLESS HE CHOOSES
TO SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN WILL, AND TO SUFFER NO
PENALTY, AS HELD IN TWINING, FOR SUCH SILENCE. 

THIS CONCLUSION IS FORTIFIED BY OUR RECENT DECISION IN MAPP V. OHIO,
367 U.S. 643, OVERRULING WOLF V. COLORADO, 338 U.S. 25, WHICH HAD HELD
"THAT IN A PROSECUTION IN A STATE COURT FOR A STATE CRIME THE
FOURTEENTH AMENDMENT DOES NOT FORBID THE ADMISSION OF EVIDENCE OBTAINED
BY AN UNREASONABLE SEARCH AND SEIZURE," 338 U.S., AT 33.  MAPP HELD
THAT THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
IMPLEMENTED THE FOURTH AMENDMENT IN SUCH CASES, AND THAT THE TWO
GUARANTEES OF PERSONAL SECURITY CONJOINED IN THE FOURTEENTH AMENDMENT
TO MAKE THE EXCLUSIONARY RULE OBLIGATORY UPON THE STATES.  WE RELIED
UPON THE GREAT CASE OF BOYD V. UNITED STATES, 116 U.S. 616, DECIDED IN
1886, WHICH, CONSIDERING THE FOURTH AND FIFTH AMENDMENTS AS RUNNING
"ALMOST INTO EACH OTHER," ID., AT 630, HELD THAT "BREAKING INTO A HOUSE
AND OPENING BOXES AND DRAWERS ARE CIRCUMSTANCES OF AGGRAVATION; BUT ANY
FORCIBLE AND COMPULSORY EXTORTION OF A MAN'S OWN TESTIMONY OR HIS
PRIVATE PAPERS TO BE USED AS EVIDENCE TO CONVICT HIM OF CRIME OR TO
FORFEIT HIS GOODS, IS WITHIN THE CONDEMNATION OF THOSE AMENDMENTS  ...
."  AT 630.  WE SAID IN MAPP: 

"WE FIND THAT, AS TO THE FEDERAL GOVERNMENT, THE FOURTH AND FIFTH
AMENDMENT AND, AS TO THE STATES, THE FREEDOM FROM UNCONSCIONABLE
INVASIONS OF PRIVACY AND THE FREEDOM FROM CONVICTIONS BASED UPON
COERCED CONFESSIONS DO ENJOY AN 'INTIMATE RELATION' IN THEIR
PERPETUATION OF 'PRINCIPLES OF HUMANITY AND CIVIL LIBERTY SECURED  ...
ONLY AFTER YEARS OF STRUGGLE,' BRAM V. UNITED STATES, 168 U.S. 532, 543
544  ...  .  THE PHILOSOPHY OF EACH AMENDMENT AND OF EACH FREEDOM IS
COMPLEMENTARY TO, ALTHOUGH NOT DEPENDENT UPON, THAT OF THE OTHER IN ITS
SPHERE OF INFLUENCE - THE VERY LEAST THAT TOGETHER THEY ASSURE IN
EITHER SPHERE IS THAT NO MAN IS TO BE CONVICTED ON UNCONSTITUTIONAL
EVIDENCE."  367 U.S., AT 656-657. 

IN THUS RETURNING TO THE BOUD VIEW THAT THE PRIVILEGE IS ONE OF THE
"PRINCIPLES OF A FREE GOVERNMENT," 116 U.S., AT 632,  (FN7)  MAPP
NECESSARILY REPUDIATED THE TWINING CONCEPT OF THE PRIVILEGE AS A MERE
RULE OF EVIDENCE "BEST DEFENDED NOT AS AN UNCHANGEABLE PRINCIPLE OF
UNIVERSAL JUSTICE BUT AS A LAW PROVED BY EXPERIENCE TO BE EXPEDIENT." 
211 U.S., AT 113. 

THE RESPONDENT SHERIFF CONCEDES IN HIS BRIEF THAT UNDER OUR
DECISIONS, PARTICULARLY THOSE INVOLVING COERCED CONFESSION, "THE
ACCUSATORIAL SYSTEM HAS BECOME A FUNDAMENTAL PART OF THE FABRIC OF OUR
SOCIETY AND, HENCE, IS ENFORCEABLE AGAINST THE STATES."  (FN8)  THE
STATE URGES, HOWEVER, THAT THE AVAILABILITY OF THE FEDERAL PRIVILEGE TO
A WITNESS IN A STATE INQUIRY IS TO BE DETERMINED ACCORDING TO A LESS
STRINGENT STANDARD THAN IS APPLICABLE IN A FEDERAL PROCEEDING.  WE
DISAGREE.  WE HAVE HELD THAT THE GUARANTEES OF THE FIRST AMENDMENT,
GITLOW V. NEW YORK, SUPRA; CANTWELL V. CONNECTICUT, 310 U.S. 296;
LOUISIANA EX REL. GREMILLION V. NAACP, 366 U.S. 293, THE PROHIBITION OF
UNREASONABLE SEARCHES AND SEIZURES OF THE FOURTH AMENDMENT, KER V.
CALIFORNIA, 374 U.S. 23, AND THE RIGHT TO COUNSEL GUARANTEED BY THE
SIXTH AMENDMENT, GIDEON V. WAINWRIGHT, SUPRA, ARE ALL TO BE ENFORCED
AGAINST THE STATES UNDER THE FOURTEENTH AMENDMENT ACCORDING TO THE SAME
STANDARDS THAT PROTECT THOSE PERSONAL RIGHTS AGAINST FEDERAL
ENCROACHMENT.  IN THE COERCED CONFESSION CASES, INVOLVING THE POLICIES
OF THE PRIVILEGE ITSELF, THERE HAS BEEN NO SUGGESTION THAT A CONFESSION
MIGHT BE CONSIDERED COERCED IF USED IN A FEDERAL BUT NOT A STATE
TRIBUNAL.  THE COURT THUS HAS REJECTED THE NOTION THAT THE FOURTEENTH
AMENDMENT APPLIES TO THE STATES ONLY A "WATERED-DOWN, SUBJECTIVE
VERSION OF THE INDIVIDUAL GUARANTEES OF THE BILL OF RIGHTS," OHIO EX
REL. EATON V. PRICE, 364 U.S. 263, 275 (DISSENTING OPINION).  IF COHEN
V. HURLEY, 366 U.S. 117, AND ADAMSON V. CALIFORNIA, SUPRA, SUGGEST SUCH
AN APPLICATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION, THAT
SUGGESTION CANNOT SURVIVE RECOGNITION OF THE DEGREE TO WHICH THE
TWINING VIEW OF THE PRIVILEGE HAS BEEN ERODED.  WHAT IS ACCORDED IS A
PRIVILEGE OF REFUSING TO INCRIMINATE ONE'S SELF, AND THE FEARED
PROSECUTION MAY BE BY EITHER FEDERAL OR STATE AUTHORITIES.  MURPHY V.
WATERFRONT COMM'N, POST, P. 52.  IT WOULD BE INCONGRUOUS TO HAVE
DIFFERENT STANDARDS DETERMINE THE VALIDITY OF A CLAIM OF PRIVILEGE
BASED ON THE SAME FEARED PROSECUTION, DEPENDING ON WHETHER THE CLAIM
WAS ASSERTED IN A STATE OR FEDERAL COURT.  THEREFORE, THE SAME
STANDARDS MUST DETERMINE WHETHER AN ACCUSED'S SILENCE IN EITHER A
FEDERAL OR STATE PROCEEDING IS JUSTIFIED.    WE TURN TO THE
PETITIONER'S CLAIM THAT THE STATE OF CONNECTICUT DENIED HIM THE
PROTECTION OF HIS FEDERAL PRIVILEGE.  IT MUST BE CONSIDERED IRRELEVANT
THAT THE PETITIONER WAS A WITNESS IN A STATUTORY INQUIRY AND NOT A
DEFENDANT IN A CRIMINAL PROSECUTION, FOR IT HAS LONG BEEN SETTLED THAT
THE PRIVILEGE PROTECTS WITNESSES IN SIMILAR FEDERAL INQUIRIES. 
COUNSELMAN V. HITCHCOCK, 142 U.S. 547; MCCARTHY V. ARNDSTEIN, 266 U.S.
34; HOFFMAN V. UNITED STATES, 341 U.S. 479.  WE RECENTLY ELABORATED THE
CONTENT OF THE FEDERAL STANDARD IN HOFFMAN: 

"THE PRIVILEGE AFFORDED NOT ONLY EXTENDS TO ANSWERS THAT WOULD IN
THEMSELVES SUPPORT A CONVICTION ...  BUT LIKEWISE EMBRACES THOSE WHICH
WOULD FURNISH A LINK IN THE CHAIN OF EVIDENCE NEEDED TO PROSECUTE  ...
.  IF THE WITNESS, UPON INTERPOSING HIS CLAIM, WERE REQUIRED TO PROVE
THE HAZARD ...  HE WOULD BE COMPELLED TO SURRENDER THE VERY PROTECTION
WHICH THE PRIVILEGE IS DESIGNED TO GUARANTEE.  TO SUSTAIN THE
PRIVILEGE, IT NEED ONLY BE EVIDENT 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."  341 U.S., AT 486
487. 

WE ALSO SAID THAT, IN APPLYING THAT TEST, THE JUDGE MUST BE: 

"'PERFECTLY CLEAR, FROM A CAREFUL CONSIDERATION OF ALL THE
CIRCUMSTANCES IN THE CASE, THAT THE WITNESS IS MISTAKEN, AND THAT THE
ANSWERS) CANNOT POSSIBLY HAVE SUCH TENDENCY' TO INCRIMINATE," 341 U.S.,
AT 488. 

THE STATE OF CONNECTICUT ARGUES THAT THE CONNECTICUT COURTS PROPERLY
APPLIED THE FEDERAL STANDARDS TO THE FACTS OF THIS CASE.  WE DISAGREE. 

THE INVESTIGATION IN THE COURSE OF WHICH PETITIONER WAS QUESTIONED
BEGAN WHEN THE SUPERIOR COURT IN HARTFORD COUNTY APPOINTED THE
HONORABLE ERNEST A. INGLIS, FORMERLY CHIEF JUSTICE OF CONNECTICUT, TO
CONDUCT AN INQUIRY INTO WHETHER THERE WAS REASONABLE CAUSE TO BELIEVE
THAT CRIMES, INCLUDING GAMBLING, WERE BEING COMMITTED IN HARTFORD
COUNTY.  PETITIONER APPEARED ON JANUARY 16 AND 25, 1961, AND IN BOTH
INSTANCES HE WAS ASKED SUBSTANTIALLY THE SAME QUESTIONS ABOUT THE
CIRCUMSTANCES SURROUNDING HIS ARREST AND CONVICTION FOR POOL SELLING IN
LATE 1959.  THE QUESTIONS WHICH PETITIONER REFUSED TO ANSWER MAY BE
SUMMARIZED AS FOLLOWS:  (1) FOR WHOM DID HE WORK ON SEPTEMBER 11, 1959;
(2) WHO SELECTED AND PAID HIS COUNSEL IN CONNECTION WITH HIS ARREST ON
THAT DATE AND SUBSEQUENT CONVICTION; (3) WHO SELECTED AND PAID HIS
BONDSMAN; (4) WHO PAID HIS FINE; (5) WHAT WAS THE NAME OF THE TENANT OF
THE APARTMENT IN WHICH HE WAS ARRESTED; AND (6) DID HE KNOW JOHN
BERGOTI.  THE CONNECTICUT SUPREME COURT OF ERRORS RULED THAT THE
ANSWERS TO THESE QUESTIONS COULD NOT TEND TO INCRIMINATE HIM BECAUSE
THE DEFENSES OF DOUBLE JEOPARDY AND THE RUNNING OF THE ONE-YEAR STATUTE
OF LIMITATIONS ON MISDEMEANORS WOULD DEFEAT ANY PROSECUTION GROWING OUT
OF HIS ANSWERS TO THE FIRST FIVE QUESTIONS.  AS FOR THE SIXTH QUESTION,
THE COURT HELD THAT PETITIONER'S FAILURE TO EXPLAIN HOW A REVELATION OF
HIS RELATIONSHIP WITH BERGOTI WOULD INCRIMINATE HIM VITIATED HIS CLAIM
TO THE PROTECTION OF THE PRIVILEGE AFFORDED BY STATE LAW. 

THE CONCLUSIONS OF THE COURT OF ERRORS, TESTED BY THE FEDERAL
STANDARD, FAIL TO TAKE SUFFICIENT ACCOUNT OF THE SETTING IN WHICH THE
QUESTIONS WERE ASKED.  THE INTERROGATION WAS PART OF A WIDE-RANGING
INQUIRY INTO CRIME, INCLUDING GAMBLING, IN HARTFORD.  IT WAS ADMITTED
ON BEHALF OF THE STATE AT ORAL ARGUMENT - AND INDEED IT IS OBVIOUS FROM
THE QUESTIONS THEMSELVES - THAT THE STATE DESIRED TO ELICIT FROM THE
PETITIONER THE IDENTITY OF THE PERSON WHO RAN THE POOL-SELLING
OPERATION IN CONNECTION WITH WHICH HE HAD BEEN ARRESTED IN 1959.  IT
WAS APPARENT THAT PETITIONER MIGHT APPREHEND THAT IF THIS PERSON WERE
STILL ENGAGED IN UNLAWFUL ACTIVITY, DISCLOSURE OF HIS NAME MIGHT
FURNISH A LINK IN A CHAIN OF EVIDENCE SUFFICIENT TO CONNECT THE
PETITIONER WITH A MORE RECENT CRIME FOR WHICH HE MIGHT STILL BE
PROSECUTED.  (FN9) 

ANALYSIS OF THE SIXTH QUESTION, CONCERNING WHETHER PETITIONER KNEW
JOHN BERGOTI, YIELDS A SIMILAR CONCLUSION.  IN THE CONTEXT OF THE
INQUIRY, IT SHOULD HAVE BEEN APPARENT TO THE REFEREE THAT BERGOTI WAS
SUSPECTED BY THE STATE TO BE INVOLVED IN SOME WAY IN THE SUBJECT MATTER
OF THE INVESTIGATION.  AN AFFIRMATIVE ANSWER TO THE QUESTION MIGHT WELL
HAVE EITHER CONNECTED PETITIONER WITH A MORE RECENT CRIME, OR AT LEAST
HAVE OPERATED AS A WAIVER OF HIS PRIVILEGE WITH REFERENCE TO HIS
RELATIONSHIP WITH A POSSIBLE CRIMINAL.  SEE ROGERS V. UNITED STATES,
340 U.S. 367.  WE CONCLUDE, THEREFORE, THAT AS TO EACH OF THE
QUESTIONS, IT WAS "EVIDENT FROM THE IMPLICATIONS OF THE QUESTION, IN
THE SETTING IN WHICH IT WAS ASKED, THAT A RESPONSIVE ANSWER TO THE
QUESTION OR AN EXPLANATION OF WHY IT COULD NOT BE ANSWERED MIGHT BE
DANGEROUS BECAUSE INJURIOUS DISCLOSURE COULD RESULT," HOFFMAN V. UNITED
STATES, 341 U.S., AT 486-487; SEE SINGLETON V. UNITED STATES, 343 U.S.
944.  REVERSED. 

FN1  IN BOTH CASES THE QUESTION WAS WHETHER COMMENT UPON THE FAILURE
OF AN ACCUSED TO TAKE THE STAND IN HIS OWN DEFENSE IN A STATE
PROSECUTION VIOLATED THE PRIVILEGE.  IT WAS ASSUMED, BUT NOT DECIDED,
IN BOTH CASES THAT SUCH COMMENT IN A FEDERAL PROSECUTION FOR A FEDERAL
OFFENSE WOULD INFRINGE THE PROVISION OF THE FIFTH AMENDMENT THAT "NO
PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS
AGAINST HIMSELF."  FOR OTHER STATEMENTS BY THE COURT THAT THE
FOURTEENTH AMENDMENT DOES NOT APPLY THE FEDERAL PRIVILEGE IN STATE
PROCEEDINGS, SEE COHEN V. HURLEY, 366 U.S. 117, 127-129; SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 105. 

FN2  TEN JUSTICES HAVE SUPPORTED THIS VIEW.  SEE GIDEON V.
WAINWRIGHT, 372 U.S. 335, 346 (OPINION OF MR. JUSTICE DOUGLAS).  THE
COURT EXPRESSED ITSELF AS UNPERSUADED TO THIS VIEW IN IN RE KEMMLER,
136 U.S. 436, 448-449; MCELVAINE V. BRUSH, 142 U.S. 155, 158-159;
MAXWELL V. DOW, 176 U.S. 581, 597-598; TWINING V. NEW JERSEY, SUPRA, P.
96.  SES SPIES V. ILLINOIS, 123 U.S. 131.  DECISIONS THAT PARTICULAR
GUARANTEES WERE NOT SAFEGUARDED AGAINST STATE ACTION BY THE PRIVILEGES
AND IMMUNITIES CLAUSE OR OTHER PROVISION OF THE FOURTEENTH AMENDMENT
ARE:  UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 551; PRUDENTIAL INS.
CO. V. CHEEK, 259 U.S. 530, 543 (FIRST AMENDMENT); PRESSER V. ILLINOIS,
116 U.S. 252, 265 (SECOND AMENDMENT); WEEKS V. UNITED STATES, 232 U.S.
383, 398 (FOURTH AMENDMENT); HURTADO V. CALIFORNIA, 110 U.S. 516, 538
(FIFTH AMENDMENT REQUIREMENT OF GRAND JURY INDICTMENTS); PALKO V.
CONNECTICUT, 302 U.S. 319, 328 (FIFTH AMENDMENT DOUBLE JEOPARDY);
MAXWELL V. DOW, SUPRA, AT 595 (SIXTH AMENDMENT JURY TRIAL); WALKER V.
SAUVINET, 92 U.S. 90, 92 (SEVENTH AMENDMENT JURY TRIAL); IN RE KEMMLER,
SUPRA; MCELVAINE V. BRUSH, SUPRA; O'NEIL V. VERMONT, 144 U.S. 323, 332
(EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT). 

FN3  IN BARRON V. BALTIMORE, 7 PET. 243, DECIDED BEFORE THE ADOPTION
OF THE FOURTEENTH AMENDMENT, CHIEF JUSTICE MARSHALL, SPEAKING FOR THE
COURT, HELD THAT THIS RIGHT WAS NOT SECURED AGAINST STATE ACTION BY THE
FIFTH AMENDMENT'S PROVISION:  "NOR SHALL PRIVATE PROPERTY BE TAKEN FOR
PUBLIC USE, WITHOUT JUST COMPENSATION." 

FN4  E.G., GITLOW V. NEW YORK, 268 U.S. 652, 666 (SPEECH AND PRESS);
LOVELL V. CITY OF GRIFFIN, 303 U.S. 444, 450 (SPEECH AND PRESS); NEW
YORK TIMES CO. V. SULLIVAN, 376 U.S. 254 (SPEECH AND PRESS); STAUB V.
CITY OF BAXLEY, 355 U.S. 313, 321 (SPEECH); GROSJEAN V. AMERICAN PRESS
CO., 297 U.S. 233, 244 (PRESS); CANTWELL V. CONNECTICUT, 310 U.S. 296,
303 (RELIGION); DE JONGE V. OREGON, 299 U.S. 353, 364 (ASSEMBLY);
SHELTON V. TUCKER, 364 U.S. 479, 486 (ASSOCIATION); LOUISIANA EX REL.
GREMILLION V. NAACP, 366 U.S. 293, 296 (ASSOCIATION); NAACP V. BUTTON,
371 U.S. 415 (ASSOCIATION AND SPEECH); BROTHERHOOD OF RAILROAD TRAINMEN
V. VIRGINIA EX REL. VIRGINIA STATE BAR, 377 U.S. 1 (ASSOCIATION). 

FN5  SEE WOLF V. COLORADO, 338 U.S. 25, 27-28, ELKINS V. UNITED
STATES, 364 U.S. 206, 213. 

FN6  SEE ALSO ROBINSON V. CALIFORNIA, 370 U.S. 660, 666, WHICH,
DESPITE IN RE KEMMLER, SUPRA; MCELVAINE V. BRUSH, SUPRA; O'NEIL V.
VERMONT, SUPRA, MADE APPLICABLE TO THE STATES THE EIGHTH AMENDMENT'S
BAN ON CRUEL AND UNUSUAL PUNISHMENTS. 

FN7  BOYD HAD SAID OF THE PRIVILEGE, "  ...  ANY COMPULSORY DISCOVERY
BY EXTORTING THE PARTY'S OATH  ...  TO CONVICT HIM OF CRIME  ...  IS
CONTRARY TO THE PRINCIPLES OF A FREE GOVERNMENT.  IT IS ABHORRENT TO
THE INSTINCTS OF AN ENGLISHMAN; IT IS ABHORRENT TO THE INSTINCTS OF ANY
AMERICAN.  IT MAY SUIT THE PURPOSES OF DESPOTIC POWER; BUT IT CANNOT
ABIDE THE PURE ATMOSPHERE OF POLITICAL LIBERTY AND PERSONAL FREEDOM." 
116 U.S., AT 631-632. 

DEAN GRISWOLD HAS SAID:  "I BELIEVE THE FIFTH AMENDMENT IS, AND HAS
BEEN THROUGH THIS PERIOD OF CRISIS, AN EXPRESSION OF THE MORAL STRIVING
OF THE COMMUNITY.  IT HAS BEEN A REFLECTION OF OUR COMMON CONSCIENCE, A
SYMBOL OF THE AMERICA WHICH STIRS OUR HEARTS."  THE FIFTH AMENDMENT
TODAY 73 (1955). 

FN8  THE BRIEF STATES FURTHER: 

"UNDERLYING THE DECISIONS EXCLUDING COERCED CONFESSIONS IS THE
IMPLICIT ASSUMPTION THAT AN ACCUSED IS PRIVILEGED AGAINST INCRIMINATING
HIMSELF, EITHER IN THE JAIL HOUSE, THE GRAND JURY ROOM, OR ON THE
WITNESS STAND IN A PUBLIC TRIAL  ...  . 

"  ...  IT IS FUNDAMENTALLY INCONSISTENT TO SUGGEST, AS THE COURT'S
OPINIONS NOW SUGGEST, THAT THE STATE IS ENTIRELY FREE TO COMPEL AN
ACCUSED TO INCRIMINATE HIMSELF BEFORE A GRAND JURY, OR AT THE TRIAL,
BUT CANNOT DO SO IN THE POLICE STATION.  FRANK RECOGNITION OF THE FACT
THAT THE DUE PROCESS CLAUSE PROHIBITS THE STATES FROM ENFORCING THEIR
LAWS BY COMPELLING THE ACCUSED TO CONFESS, REGARDLESS OF WHERE SUCH
COMPULSION OCCURS, WOULD NOT ONLY CLARIFY THE PRINCIPLES INVOLVED IN
CONFESSION CASES, BUT WOULD ASSIST THE STATES SIGNIGICANTLY IN THEIR
EFFORTS TO COMPLY WITH THE LIMITATIONS PLACED UPON THEM BY THE
FOURTEENTH AMENDMENT." 

FN9  SEE GREENBERG V. UNITED STATES, 343 U.S. 918, REVERSING PER
CURIAM, 192 F.2D 201; SINGLETON V. UNITED STATES, 343 U.S. 944,
REVERSING PER CURIAM, 193 F.2D 464.  IN UNITED STATES V. COFFEY, 198
F.2D 438 (C.A. 3D CIR.), CITED WITH APPROVAL IN EMSPAK V. UNITED
STATES, 349 U.S. 190, THE COURT OF APPEALS FOR THE THIRD CIRCUIT
STATED: 

"IN DETERMINING WHETHER THE WITNESS REALLY APPREHENDS DANGER IN
ANSWERING A QUESTION, THE JUDGE CANNOT PERMIT HIMSELF TO BE SKEPTICAL;
RATHER MUST HE BE ACUTELY AWARE THAT IN THE DEVIOUSNESS OF CRIME AND
ITS DETECTION INCRIMINATION MAY BE APPROACHED AND ACHIEVED BY OBSCURE
AND UNLIKELY LINES OF INQUIRY."  198 F.2D, AT 440-441. 

WHILE MR. JUSTICE DOUGLAS JOINS THE OPINION OF THE COURT, HE ALSO
ADHERES TO HIS CONCURRENCE IN GIDEON V. WAINWRIGHT, 372 U.S. 335, 345. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

CONNECTICUT HAS ADJUDGED THIS PETITIONER IN CONTEMPT FOR REFUSING TO
ANSWER QUESTIONS IN A STATE INQUIRY.  THE COURTS OF THE STATE, WHOSE
LAWS EMBODY A PRIVILEGE AGAINST SELF-INCRIMINATION, REFUSED TO
RECOGNIZE THE PETITIONER'S CLAIM OF PRIVILEGE, FINDING THAT THE
QUESTIONS ASKED HIM WERE NOT INCRIMINATORY.  THIS COURT NOW HOLDS THE
CONTEMPT ADJUDICATION UNCONSTITUTIONAL BECAUSE, IT IS DECIDED:  (1) THE
FOURTEENTH AMENDMENT MAKES THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF
INCRIMINATION APPLICABLE TO THE STATES, (2) THE FEDERAL STANDARD
JUSTIFYING A CLAIM OF THIS PRIVILEGE LIKEWISE APPLIES TO THE STATES;
AND (3) JUDGED BY THAT STANDARD THE PETITIONER'S CLAIM OF PRIVILEGE
SHOULD HAVE BEEN UPHELD. 

BELIEVING THAT THE REASONING BEHIND THE COURT'S DECISION CARRIES
EXTREMELY MISCHIEVOUS, IF NOT DANGEROUS, CONSEQUENCES FOR OUR FEDERAL
SYSTEM IN THE REALM OF CRIMINAL LAW ENFORCEMENT, I MUST DISSENT.  THE
IMPORTANCE OF THE ISSUE PRESENTED AND THE SERIOUS INCURSION WHICH THE
COURT MAKES ON TIME-HONORED, BASIC CONSTITUTIONAL PRINCIPLES JUSTIFY A
FULL EXPOSITION OF MY REASONS. 

          I. 

I CAN ONLY READ THE COURT'S OPINION AS ACCEPTING IN FACT WHAT IT
REJECTS IN THEORY:  THE APPLICATION TO THE STATES, VIA THE FOURTEENTH
AMENDMENT, OF THE FORMS OF FEDERAL CRIMINAL PROCEDURE EMBODIED WITHIN
THE FIRST EIGHT AMENDMENTS TO THE CONSTITUTION.  WHILE IT IS TRUE THAT
THE COURT DEALS TODAY WITH ONLY ONE ASPECT OF STATE CRIMINAL PROCEDURE,
AND REJECTS THE WHOLESALE "INCORPORATION" OF SUCH FEDERAL
CONSTITUTIONAL REQUIREMENTS, THE LOGICAL GAP BETWEEN THE COURT'S
PREMISES AND ITS NOVEL CONSTITUTIONAL CONCLUSION CAN, I SUBMIT, BE
BRIDGED ONLY BY THE ADDITIONAL PREMISE THAT THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT IS A SHORTHAND DIRECTIVE TO THIS COURT TO PICK
AND CHOOSE AMONG THE PROVISIONS OF THE FIRST EIGHT AMENDMENTS AND APPLY
THOSE CHOSEN, FREIGHTED WITH THEIR ENTIRE ACCOMPANYING BODY OF FEDERAL
DOCTRINE, TO LAW ENFORCEMENT IN THE STATES. 

I ACCEPT AND AGREE WITH THE PROPOSITION THAT CONTINUING RE
EXAMINATION OF THE CONSTITUTIONAL CONCEPTION OF FOURTEENTH AMENDMENT
"DUE PROCESS" OF LAW IS REQUIRED, AND THAT DEVELOPMENT OF THE
COMMUNITY'S SENSE OF JUSTICE MAY IN TIME LEAD TO EXPANSION OF THE
PROTECTION WHICH DUE PROCESS AFFORDS.  IN PARTICULAR IN THIS CASE, I
AGREE THAT PRINCIPLES OF JUSTICE TO WHICH DUE PROCESS GIVES EXPRESSION,
AS REFLECTED IN DECISIONS OF THIS COURT, PROHIBIT A STATE, AS THE FIFTH
AMENDMENT PROHIBITS THE FEDERAL GOVERNMENT, FROM IMPRISONING A PERSON
SOLELY BECAUSE HE REFUSES TO GIVE EVIDENCE WHICH MAY INCRIMINATE HIM
UNDER THE LAWS OF THE STATE.  (FN1)  I DO NOT UNDERSTAND, HOWEVER, HOW
THIS PROCESS OF RE-EXAMINATION, WHICH MUST REFER ALWAYS TO THE GUIDING
STANDARD OF DUE PROCESS OF LAW, INCLUDING, OF COURSE, REFERENCE TO THE
PARTICULAR GUARANTEES OF THE BILL OF RIGHTS, CAN BE SHORT-CIRCUITED BY
THE SIMPLE DEVICE OF INCORPORATING INTO DUE PROCESS, WITHOUT CRITICAL
EXAMINATION, THE WHOLE BODY OF LAW WHICH SURROUNDS A SPECIFIC
PROHIBITION DIRECTED AGAINST THE FEDERAL GOVERNMENT.  THE CONSEQUENCE
OF SUCH AN APPROACH TO DUE PROCESS AS IT PERTAINS TO THE STATES IS
INEVITABLY DISREGARD OF ALL RELEVANT DIFFERENCES WHICH MAY EXIST
BETWEEN STATE AND FEDERAL CRIMINAL LAW AND ITS ENFORCEMENT.  THE
ULTIMATE RESULT IS COMPELLED UNIFORMITY, WHICH IS INCONSISTENT WITH THE
PURPOSE OF OUR FEDERAL SYSTEM AND WHICH IS ACHIEVED EITHER BY
ENCROACHMENT ON THE STATES' SOVEREIGN POWERS OR BY DILUTION IN FEDERAL
LAW ENFORCEMENT OF THE SPECIFIC PROTECTIONS FOUND IN THE BILL OF
RIGHTS.                                 II. 

AS RECENTLY AS 1961, THIS COURT REAFFIRMED THAT "THE FIFTH
AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION," ANTE, P. 3, WAS NOT
APPLICABLE AGAINST THE STATES.  COHEN V. HURLEY, 366 U.S. 117.  THE
QUESTION HAD BEEN MOST FULLY EXPLORED IN TWINING V. NEW JERSEY, 211
U.S. 78.  SINCE 1908, WHEN TWINING WAS DECIDED, THIS COURT HAS ADHERED
TO THE VIEW THERE EXPRESSED THAT "THE EXEMPTION FROM COMPULSORY SELF
INCRIMINATION IN THE COURTS OF THE STATES IS NOT SECURED BY ANY PART OF
THE FEDERAL CONSTITUTION," 211 U.S., AT 114.  SNYDER V. MASSACHUSETTS,
291 U.S. 97, 105; BROWN V. MISSISSIPPI, 297 U.S. 278, 285; PALKO V.
CONNECTICUT, 302 U.S. 319, 324; ADAMSON V. CALIFORNIA, 332 U.S. 46;
KNAPP V. SCHWEITZER, 357 U.S. 371, 374; COHEN, SUPRA.  ALTHOUGH NONE OF
THESE CASES INVOLVED A COMMITMENT TO PRISON FOR REFUSING TO INCRIMINATE
ONESELF UNDER STATE LAW, AND THEY ARE RELEVANTLY DISTINGUISHABLE FROM
THIS CASE ON THAT NARROW GROUND,  (FN2)  IT IS PERFECTLY CLEAR FROM
THEM THAT UNTIL TODAY IT HAS BEEN REGARDED AS SETTLED LAW THAT THE
FIFTH AMENDMENT PRIVILEGE DID NOT, BY ANY PROCESS OF REASONING, APPLY
AS SUCH TO THE STATES. 

THE COURT SUGGESTS THAT THIS CONSISTENT LINE OF AUTHORITY HAS BEEN
UNDERMINED BY THE CONCURRENT DEVELOPMENT OF CONSTITUTIONAL DOCTRINE IN
THE AREAS OF COERCED CONFESSIONS AND SEARCH AND SEIZURE.  THIS IS POST
FACTO REASONING AT BEST.  CERTAINLY THERE HAS BEEN NO INTIMATION UNTIL
NOW THAT TWINING HAS BEEN TACITLY OVERRULED. 

IT WAS IN BROWN V. MISSISSIPPI, SUPRA, THAT THIS COURT FIRST
PROHIBITED THE USE OF A COERCED CONFESSION IN A STATE CRIMINAL TRIAL. 
THE PETITIONERS IN BROWN HAD BEEN TORTURED UNTIL THEY CONFESSED.  THE
COURT WAS HARDLY MAKING AN ARTIFICIAL DISTINCTION WHEN IT SAID: 

"  ...  THE QUESTION OF THE RIGHT OF THE STATE TO WITHDRAW THE
PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT HERE INVOLVED.  THE
COMPULSION TO WHICH THE QUOTED STATEMENTS (FROM TWINING AND SNYDER,
SUPRA,) REFER IS THAT OF THE PROCESSES OF JUSTICE BY WHICH THE ACCUSED
MAY BE CALLED AS A WITNESS AND REQUIRED TO TESTIFY.  COMPULSION BY
TORTURE TO EXTORT A CONFESSION IS A DIFFERENT MATTER."  (FN3)  297
U.S., AT 285. 

THE MAJORITY IS SIMPLY WRONG WHEN IT ASSERTS THAT THIS PERFECTLY
UNDERSTANDABLE DISTINCTION "WAS SOON ABANDONED," ANTE, PP. 6-7.  IN
NONE OF THE CASES CITED, ANTE, PP. 7-8, IN WHICH WAS DEVELOPED THE FULL
SWEEP OF THE CONSTITUTIONAL PROHIBITION AGAINST THE USE OF COERCED
CONFESSIONS AT STATE TRIALS, WAS THERE ANYTHING TO SUGGEST THAT THE
FIFTH AMENDMENT WAS BEING MADE APPLICABLE TO STATE PROCEEDINGS.  IN
LISENBA V. CALIFORNIA, 314 U.S. 219, THE PRIVILEGE AGAINST SELF
INCRIMINATION IS NOT MENTIONED.  THE RELEVANT QUESTION BEFORE THE COURT
WAS WHETHER "THE EVIDENCE OF COERCION REQUIRES THAT WE SET ASIDE THE
FINDING OF TWO COURTS AND A JURY, AND ADJUDGE THE ADMISSION OF THE
CONFESSIONS SO FUNDAMENTALLY UNFAIR, SO CONTRARY TO THE COMMON CONCEPT
OF ORDERED LIBERTY, AS TO AMOUNT TO A TAKING OF LIFE WITHOUT DUE
PROCESS OF LAW."  ID., AT 238.  THE QUESTION WAS THE SAME IN ASHCRAFT
V. TENNESSEE, 322 U.S. 143; THE COURT THERE ADVERTED TO THE "THIRD
DEGREE," E.G., ID., AT 150, NOTE 5, AND "SECRET INQUISITORIAL
PRACTICES," ID., AT 152.  MALINSKI V. NEW YORK, 324 U.S. 401, IS THE
SAME; THE PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT MENTIONED.  (FN4)
SO TOO IN SPANO V. NEW YORK, 360 U.S. 315; LYNUMN V. ILLINOIS, 372
U.S. 528; AND HAYNES V. WASHINGTON, 373 U.S. 503.  FINALLY, IN ROGERS
V. RICHMOND, 365 U.S. 534, ALTHOUGH THE COURT DID RECOGNIZE THAT "OURS
IS AN ACCUSATORIAL AND NOT AN INQUISITORIAL SYSTEM," ID., AT 541, IT IS
CLEAR THAT THE COURT WAS CONCERNED ONLY WITH THE PROBLEM OF COERCED
CONFESSIONS, SEE IBID,; THE OPINION INCLUDES NOTHING TO SUPPORT THE
COURT'S ASSERTION HERE, ANTE, P. 7, THAT "THE FIFTH AMENDMENT PRIVILEGE
IS  ...  THE ESSENTIAL MAINSTAY" OF OUR SYSTEM. 

IN ADAMSON, SUPRA, THE COURT MADE IT EXPLICIT THAT IT DID NOT REGARD
THE INCREASINGLY STRICT STANDARD FOR DETERMINING THE ADMISSIBILITY AT
TRIAL OF AN OUT-OF-COURT CONFESSION AS UNDERMINING THE HOLDING OF
TWINING.  AFTER STATING THAT "THE DUE PROCESS CLAUSE DOES NOT PROTECT,
BY VIRTUE OF ITS MERE EXISTENCE, THE ACCUSED'S FREEDOM FROM GIVING
TESTIMONY BY COMPULSION IN STATE TRIALS THAT IS SECURED TO HIM AGAINST
FEDERAL INTERFERENCE BY THE FIFTH AMENDMENT," THE COURT SAID:  "THE DUE
PROCESS CLAUSE FORBIDS COMPULSION TO TESTIFY BY FEAR OF HURT, TORTURE
OR EXHAUSTION.  IT FORBIDS ANY OTHER TYPE OF COERCION THAT FALLS WITHIN
THE SCOPE OF DUE PROCESS."  332 U.S., AT 54 (FOOTNOTES OMITTED). 
PLAINLY, THE COURT REGARDED THESE TWO LINES OF CASES AS DISTINCT.  SEE
ALSO PALKO V. CONNECTICUT, SUPRA, AT 326, TO THE SAME EFFECT.  (FN5)
COHEN, SUPRA, WHICH ADHERED TO TWINING, WAS DECIDED AFTER ALL BUT A FEW
OF THE CONFESSION CASES WHICH THE COURT MENTIONS. 

THE COERCED CONFESSION CASES ARE RELEVANT TO THE PROBLEM OF THIS CASE
NOT BECAUSE THEY OVERRULED TWINING SUB SILENTIO, BUT RATHER BECAUSE
THEY APPLIED THE SAME STANDARD OF FUNDAMENTAL FAIRNESS WHICH IS
APPLICABLE HERE.  THE RECOGNITION IN THEM THAT FEDERAL SUPERVISION OF
STATE CRIMINAL PROCEDURES MUST BE DIRECTLY BASED ON THE REQUIREMENTS OF
DUE PROCESS IS ENTIRELY INCONSISTENT WITH THE THEORY HERE ESPOUSED BY
THE MAJORITY.  THE PARALLEL TREATMENT OF FEDERAL AND STATE CASES
INVOLVING COERCED CONFESSIONS RESULTED FROM THE FACT THAT THE SAME
DEMAND OF DUE PROCESS WAS APPLICABLE IN BOTH; IT WAS NOT THE
CONSEQUENCE OF THE AUTOMATIC ENGRAFTING OF FEDERAL LAW CONSTRUING
CONSTITUTIONAL PROVISIONS INAPPLICABLE TO THE STATES ONTO THE
FOURTEENTH AMENDMENT. 

THE DECISION IN MAPP V. OHIO, 367 U.S. 643, THAT EVIDENCE
UNCONSTITUTIONALLY SEIZED, SEE WOLF V. COLORADO, 338 U.S. 25, 28, MAY
NOT BE USED IN A STATE CRIMINAL TRIAL FURNISHES NO "FORTIFICATION," SEE
ANTE, P. 8, FOR TODAY'S DECISION.  THE VERY PASSAGE FROM THE MAPP
OPINION WHICH THE COURT QUOTES, ANTE, P. 9, MAKES EXPLICIT THE DISTINCT
BASES OF THE EXCLUSIONARY RULE AS APPLIED IN FEDERAL AND STATE COURTS: 

"WE FIND THAT, AS TO THE FEDERAL GOVERNMENT, THE FOURTH AND FIFTH
AMENDMENTS AND, AS TO THE STATES, THE FREEDOM FROM UNCONSCIONABLE
INVASIONS OF PRIVACY AND THE FREEDOM FROM CONVICTIONS BASED UPON
COERCED CONFESSIONS DO ENJOY AN 'INTIMATE RELATION' IN THEIR
PERPETUATION OF 'PRINCIPLES OF HUMANITY AND CIVIL LIBERTY SECURED  ...
ONLY AFTER YEARS OF STRUGGLE,' BRAM V. UNITED STATES, 168 U.S. 532, 543
544 (1897)."  367 U.S., AT 656-657 (FOOTNOTE OMITTED).  SEE ALSO ID.,
AT 655. 

ALTHOUGH THE COURT DISCUSSED BOYD V. UNITED STATES, 116 U.S. 616, A
FEDERAL CASE INVOLVING BOTH THE FOURTH AND FIFTH AMENDMENTS, NOTHING IN
MAPP SUPPORTS THE STATEMENT, ANTE, P. 8, THAT THE FIFTH AMENDMENT WAS
PART OF THE BASIS FOR EXTENDING THE EXCLUSIONARY RULE TO THE STATES. 
THE ELABORATION OF MAPP IN KER V. CALIFORNIA, 374 U.S. 23, DID IN MY
VIEW MAKE THE FOURTH AMENDMENT APPLICABLE TO THE STATES THROUGH THE
FOURTEENTH; BUT THERE IS NOTHING IN IT TO SUGGEST THAT THE FIFTH
AMENDMENT WENT ALONG AS BAGGAGE. 

  III. 

THE PREVIOUS DISCUSSION SHOWS THAT THIS COURT'S DECISIONS DO NOT
DICTATE THE "INCORPORATION" OF THE FIFTH AMENDMENT'S PRIVILEGE AGAINST
SELF-INCRIMINATION INTO THE FOURTEENTH AMENDMENT.  APPROACHING THE
QUESTION MORE BROADLY, IT IS EQUALLY PLAIN THAT THE LINE OF CASES
EXEMPLIFIED BY PALKO V. CONNECTICUT, SUPRA, IN WHICH THIS COURT HAS
RECONSIDERED THE REQUIREMENTS WHICH THE DUE PROCESS CLAUSE IMPOSES ON
THE STATES IN THE LIGHT OF CURRENT STANDARDS, FURNISHES NO GENERAL
THEORETICAL FRAMEWORK FOR WHAT THE COURT DOES TODAY. 

THE VIEW OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WHICH
THIS COURT HAS CONSISTENTLY ACCEPTED AND WHICH HAS "THUS FAR
PREVAILED," ANTE, P. 4, IS THAT ITS REQUIREMENTS ARE AS "OLD AS A
PRINCIPLE OF CIVILIZED GOVERNMENT," MUNN V. ILLINOIS, 94 U.S. 113, 123,
THE SPECIFIC APPLICATIONS OF WHICH MUST BE ASCERTAINED "BY THE GRADUAL
PROCESS OF JUDICIAL INCLUSION AND EXCLUSION  ...  ," DAVIDSON V. NEW
ORLEANS, 96 U.S. 97, 104.  DUE PROCESS REQUIRES "OBSERVANCE OF THOSE
GENERAL RULES ESTABLISHED IN OUR SYSTEM OF JURISPRUDENCE FOR THE
SECURITY OF PRIVATE RIGHTS."  HAGAR V. RECLAMATION DISTRICT NO. 108,
111 U.S. 701, 708.  SEE HURTADO V. CALIFORNIA 110 U.S. 516, 537. 

"THIS COURT HAS NEVER ATTEMPTED TO DEFINE WITH PRECISION THE WORDS
'DUE PROCESS OF LAW'  ...  . IT IS SUFFICIENT TO SAY THAT THERE ARE
CERTAIN IMMUTABLE PRINCIPLES OF JUSTICE WHICH INHERE IN THE VERY IDEA
OF FREE GOVERNMENT WHICH NO MEMBER OF THE UNION MAY DISREGARD  ...  ." 
HOLDEN V. HARDY, 169 U.S. 366, 389. 

IT FOLLOWED FROM THIS RECOGNITION THAT DUE PROCESS ENCOMPASSED THE
FUNDAMENTAL SAFEGUARDS OF THE INDIVIDUAL AGAINST THE ABUSIVE EXERCISE
OF GOVERNMENTAL POWER THAT SOME OF THE RESTRAINTS ON THE FEDERAL
GOVERNMENT WHICH WERE SPECIFICALLY ENUMERATED IN THE BILL OF RIGHTS
APPLIED ALSO AGAINST THE STATES.  BUT, WHILE INCLUSION OF A PARTICULAR
PROVISION IN THE BILL OF RIGHTS MIGHT PROVIDE HISTORICAL EVIDENCE THAT
THE RIGHT INVOLVED WAS TRADITIONALLY REGARDED AS FUNDAMENTAL, INCLUSION
OF THE RIGHT IN DUE PROCESS WAS OTHERWISE ENTIRELY INDEPENDENT OF THE
FIRST EIGHT AMENDMENTS: 

"  ...  IT IS POSSIBLE THAT SOME OF THE PERSONAL RIGHTS SAFEGUARDED
BY THE FIRST EIGHT AMENDMENTS AGAINST NATIONAL ACTION MAY ALSO BE
SAFEGUARDED AGAINST STATE ACTION, BECAUSE A DENIAL OF THEM WOULD BE A
DENIAL OF DUE PROCESS OF LAW  ...  .  IF THIS IS SO, IT IS NOT BECAUSE
THOSE RIGHTS ARE ENUMERATED IN THE FIRST EIGHT AMENDMENTS, BUT BECAUSE
THEY ARE OF SUCH A NATURE THAT THEY ARE INCLUDED IN THE CONCEPTION OF
DUE PROCESS OF LAW."  TWINING, SUPRA, AT 99. 

RELYING HEAVILY ON TWINING, MR. JUSTICE CARDOZO PROVIDED WHAT MAY BE
REGARDED AS A CLASSIC EXPRESSION OF THIS APPROACH IN PALKO V.
CONNECTICUT, SUPRA.  AFTER CONSIDERING A NUMBER OF INDIVIDUAL RIGHTS
(INCLUDING THE RIGHT NOT TO INCRIMINATE ONESELF) WHICH WERE "NOT OF THE
VERY ESSENCE OF A SCHEME OF ORDERED LIBERTY," ID., AT 325, HE SAID: 

"WE REACH A DIFFERENT PLANE OF SOCIAL AND MORAL VALUES WHEN WE PASS
TO THE PRIVILEGES AND IMMUNITIES THAT HAVE BEEN TAKEN OVER FROM THE
EARLIER ARTICLES OF THE FEDERAL BILL OF RIGHTS AND BROUGHT WITHIN THE
FOURTEENTH AMENDMENT BY A PROCESS OF ABSORPTION.  THESE IN THEIR ORIGIN
WERE EFFECTIVE AGAINST THE FEDERAL GOVERNMENT ALONE.  IF THE FOURTEENTH
AMENDMENT HAS ABSORBED THEM, THE PROCESS OF ABSORPTION HAS HAD ITS
SOURCE IN THE BELIEF THAT NEITHER LIBERTY NOR JUSTICE WOULD EXIST IF
THEY WERE SACRIFICED."  ID., AT 326. 

FURTHER ON, MR. JUSTICE CARDOZO MADE THE INDEPENDENCE OF THE DUE
PROCESS CLAUSE FROM THE PROVISIONS OF THE FIRST EIGHT AMENDMENTS
EXPLICIT: 

"FUNDAMENTAL  ...  IN THE CONCEPT OF DUE PROCESS, AND SO IN THAT OF
LIBERTY, IS THE THOUGHT THAT CONDEMNATION SHALL BE RENDERED ONLY AFTER
TRIAL.  SCOTT V. MCNEAL, 154 U.S. 34; BLACKMER V. UNITED STATES, 284
U.S. 421.  THE HEARING, MOREOVER, MUST BE A REAL ONE, NOT A SHAM OR A
PRETENSE.  MOORE V. DEMPSEY, 261 U.S. 86; MOONEY V. HOLOHAN, 294 U.S.
103.  FOR THAT REASON, IGNORANT DEFENDANTS IN A CAPITAL CASE WERE HELD
TO HAVE BEEN CONDEMNED UNLAWFULLY WHEN IN TRUTH, THOUGH NOT IN FORM,
THEY WERE REFUSED THE AID OF COUNSEL.  POWELL V. ALABAMA, SUPRA, PP.
67, 68.  THE DECISION DID NOT TURN UPON THE FACT THAT THE BENEFIT OF
COUNSEL WOULD HAVE BEEN GUARANTEED TO THE DEFENDANTS BY THE PROVISIONS
OF THE SIXTH AMENDMENT IF THEY HAD BEEN PROSECUTED IN A FEDERAL COURT. 
THE DECISION TURNED UPON THE FACT THAT IN THE PARTICULAR SITUATION LAID
BEFORE US IN THE EVIDENCE THE BENEFIT OF COUNSEL WAS ESSENTIAL TO THE
SUBSTANCE OF A HEARING."  ID., AT 327. 

IT IS APPARENT THAT MR. JUSTICE CARDOZO'S METAPHOR OF "ABSORPTION"
WAS NOT INTENDED TO SUGGEST THE TRANSPLANTATION OF CASE LAW SURROUNDING
THE SPECIFICS OF THE FIRST EIGHT AMENDMENTS TO THE VERY DIFFERENT SOIL
OF THE FOURTEENTH AMENDMENT'S DUE PROCESS CLAUSE.  FOR, AS HE MADE
PERFECTLY PLAIN, WHAT THE FOURTEENTH AMENDMENT REQUIRES OF THE STATES
DOES NOT BASICALLY DEPEND ON WHAT THE FIRST EIGHT AMENDMENTS REQUIRE OF
THE FEDERAL GOVERNMENT. 

SEEN IN PROPER PERSPECTIVE, THEREFORE, THE FACT THAT FIRST AMENDMENT
PROTECTIONS HAVE GENERALLY BEEN GIVEN EQUAL SCOPE IN THE FEDERAL AND
STATE DOMAINS OR THAT IN SOME AREAS OF CRIMINAL PROCEDURE THE DUE
PROCESS CLAUSE DEMANDS AS MUCH OF THE STATES AS THE BILL OF RIGHTS
DEMANDS OF THE FEDERAL GOVERNMENT, IS ONLY TANGENTIALLY RELEVANT TO THE
QUESTION NOW BEFORE US.  IT IS TOYING WITH THE CONSTITUTIONAL
PRINCIPLES TO ASSERT THAT THE COURT HAS "REJECTED THE NOTION THAT THE
FOURTEENTH AMENDMENT APPLIES TO THE STATES ONLY A 'WATERED-DOWN,
SUBJECTIVE VERSION OF THE INDIVIDUAL GUARANTEES OF THE BILL OF
RIGHTS,'" ANTE, PP. 10-11.  WHAT THE COURT HAS, WITH THE SINGLE
EXCEPTION OF THE KER CASE, SUPRA, P. 21; SEE INFRA, P. 26, CONSISTENTLY
REJECTED IS THE NOTION THAT THE BILL OF RIGHTS, AS SUCH, APPLIES TO THE
STATES IN ANY ASPECT AT ALL. 

IF ONE ATTENDS TO THOSE AREAS TO WHICH THE COURT POINTS, ANTE, P. 10,
IN WHICH THE PROHIBITIONS AGAINST THE STATE AND FEDERAL GOVERNMENTS
HAVE MOVED IN PARALLED TRACKS, THE CASES IN FACT REVEAL AGAIN THAT THE
COURT'S USUAL APPROACH HAS BEEN TO GROUND THE PROHIBITIONS AGAINST
STATE ACTION SQUARELY ON DUE PROCESS, WITHOUT INTERMEDIATE RELIANCE ON
ANY OF THE FIRST EIGHT AMENDMENTS.  ALTHOUGH MORE RECENTLY THE COURT
HAS REFERRED TO THE FIRST AMENDMENT TO DESCRIBE THE PROTECTION OF FREE
EXPRESSION AGAINST STATE INFRINGEMENT, EARLIER CASES LEAVE NO DOUBT
THAT SUCH REFERENCES ARE "SHORTHAND" FOR DOCTRINES DEVELOPED BY ANOTHER
ROUTE.  IN GITLOW V. NEW YORK, 268 U.S. 652, 666, FOR EXAMPLE, THE
COURT SAID:    "FOR PRESENT PURPOSES WE MAY AND DO ASSUME THAT FREEDOM
OF SPEECH AND OF THE PRESS - WHICH ARE PROTECTED BY THE FIRST AMENDMENT
FROM ABRIDGMENT BY CONGRESS - ARE AMONG THE FUNDAMENTAL PERSONAL RIGHTS
AND 'LIBERTIES' PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT FROM IMPAIRMENT BY THE STATES." 

THE COURT WENT ON TO CONSIDER THE EXTENT OF THOSE FREEDOMS IN THE
CONTEXT OF STATE INTERESTS.  MR. JUSTICE HOLMES, IN DISSENT, SAID: 

"THE GENERAL PRINCIPLE OF FREE SPEECH, IT SEEMS TO ME, MUST BE TAKEN
TO BE INCLUDED IN THE FOURTEENTH AMENDMENT, IN VIEW OF THE SCOPE THAT
HAS BEEN GIVEN TO THE WORD 'LIBERTY' AS THERE USED, ALTHOUGH PERHAPS IT
MAY BE ACCEPTED WITH A SOMEWHAT LARGER LATITUDE OF INTERPRETATION THAN
IS ALLOWED TO CONGRESS BY THE SWEEPING LANGUAGE THAT GOVERNS OR OUGHT
TO GOVERN THE LAWS OF THE UNITED STATES."  ID., AT 672. 

CHIEF JUSTICE HUGHES, IN DE JONGE V. OREGON, 299 U.S. 353, 364, GAVE
A SIMILAR ANALYSIS: 

"FREEDOM OF SPEECH AND OF THE PRESS ARE FUNDAMENTAL RIGHTS WHICH ARE
SAFEGUARDED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF
THE FEDERAL CONSTITUTION  ...  .  THE RIGHT OF PEACEABLE ASSEMBLY IS A
RIGHT COGNATE TO THOSE OF FREE SPEECH AND FREE PRESS AND IS EQUALLY
FUNDAMENTAL.  AS THIS COURT SAID IN UNITED STATES V. CRUIKSHANK, 92
U.S. 542, 552:  'THE VERY IDEA OF A GOVERNMENT, REPUBLICAN IN FORM,
IMPLIES A RIGHT ON THE PART OF ITS CITIZENS TO MEET PEACEABLY FOR
CONSULTATION IN RESPECT TO PUBLIC AFFAIRS AND TO PETITION FOR A REDRESS
OF GRIEVANCES.'  THE FIRST AMENDMENT OF THE FEDERAL CONSTITUTION
EXPRESSLY GUARANTEES THAT RIGHT AGAINST ABRIDGMENT BY CONGRESS.  BUT
EXPLICIT MENTION THERE DOES NOT ARGUE EXCLUSION ELSEWHERE.  FOR THE
RIGHT IS ONE THAT CANNOT BE DENIED WITHOUT VIOLATING THOSE FUNDAMENTAL
PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL CIVIL
AND POLITICAL INSTITUTIONS, - PRINCIPLES WHICH THE FOURTEENTH AMENDMENT
EMBODIES IN THE GENERAL TERMS OF ITS DUE PROCESS CLAUSE." 

THE COERCED CONFESSION AND SEARCH AND SEIZURE CASES HAVE ALREADY BEEN
CONSIDERED.  THE FORMER, DECIDED ALWAYS DIRECTLY ON GROUNDS OF
FUNDAMENTAL FAIRNESS, FURNISH NO SUPPORT FOR THE COURT'S PRESENT
VIEWS.  KER V. CALIFORNIA, SUPRA, DID INDEED INCORPORATE THE FOURTH
AMENDMENT'S PROTECTION AGAINST INVASIONS OF PRIVACY INTO THE DUE
PROCESS CLAUSE.  BUT THAT CASE SHOULD BE REGARDED AS THE EXCEPTION
WHICH PROVES THE RULE.  (FN6)  THE RIGHT TO COUNSEL IN STATE CRIMINAL
PROCEEDINGS, WHICH THIS COURT ASSURED IN GIDEON V. WAINWRIGHT, 372 U.S.
335, DOES NOT DEPEND ON THE SIXTH AMENDMENT.  IN BETTS V. BRADY, 316
U.S. 445, 462, THIS COURT HAD SAID: 

"DUE PROCESS OF LAW IS SECURED AGAINST INVASION BY THE FEDERAL
GOVERNMENT BY THE FIFTH AMENDMENT, AND IS SAFEGUARDED AGAINST STATE
ACTION IN IDENTICAL WORDS BY THE FOURTEENTH.  THE PHRASE FORMULATES A
CONCEPT LESS RIGID AND MORE FLUID THAN THOSE ENVISAGED IN OTHER
SPECIFIC AND PARTICULAR PROVISIONS OF THE BILL OF RIGHTS.  ITS
APPLICATION IS LESS A MATTER OF RULE.  ASSERTED DENIAL IS TO BE TESTED
BY AN APPRAISAL OF THE TOTALITY OF FACTS IN A GIVEN CASE.  THAT WHICH
MAY, IN ONE SETTING, CONSTITUTE A DENIAL OF FUNDAMENTAL FAIRNESS,
SHOCKING TO THE UNIVERSAL SENSE OF JUSTICE, MAY, IN OTHER
CIRCUMSTANCES, AND IN THE LIGHT OF OTHER CONSIDERATIONS, FALL SHORT OF
SUCH DENIAL."  (FOOTNOTE OMITTED.) 

ALTHOUGH GIDEON OVERRULED BETTS, THE CONSTITUTIONAL APPROACH IN BOTH
CASES WAS THE SAME.  GIDEON WAS BASED ON THE COURT'S CONCLUSION,
CONTRARY TO THAT REACHED IN BETTS, THAT THE APPOINTMENT OF COUNSEL FOR
AN INDIGENT CRIMINAL DEFENDANT WAS ESSENTIAL TO THE CONDUCT OF A FAIR
TRIAL, AND WAS THEREFORE PART OF DUE PROCESS.  372 U.S., AT 342-345. 

THE COURT'S APPROACH IN THE PRESENT CASE IS IN FACT NOTHING MORE OR
LESS THAN "INCORPORATION" IN SNATCHES.  IF, HOWEVER, THE DUE PROCESS
CLAUSE IS SOMETHING MORE THAN A REFERENCE TO THE BILL OF RIGHTS AND
PROTECTS ONLY THOSE RIGHTS WHICH DERIVE FROM FUNDAMENTAL PRINCIPLES, AS
THE MAJORITY PURPORTS TO BELIEVE, IT IS JUST AS CONTRARY TO PRECEDENT
AND JUST AS ILLOGICAL TO INCORPORATE THE PROVISIONS OF THE BILL OF
RIGHTS ONE AT A TIME AS IT IS TO INCORPORATE THEM ALL AT ONCE. 

                                        IV. 

THE COURT'S UNDISCRIMINATING APPROACH TO THE DUE PROCESS CLAUSE
CARRIES SERIOUS IMPLICATIONS FOR THE SOUND WORKING OF OUR FEDERAL
SYSTEM IN THE FIELD OF CRIMINAL LAW. 

THE COURT CONCLUDES, ALMOST WITHOUT DISCUSSION, THAT "THE SAME
STANDARDS MUST DETERMINE WHETHER AN ACCUSED'S SILENCE IN EITHER A
FEDERAL OR STATE PROCEEDING IS JUSTIFIED," ANTE, P. 11.  ABOUT ALL THAT
THE COURT OFFERS IN EXPLANATION OF THIS CONCLUSION IS THE OBSERVATION
THAT IT WOULD BE "INCONGRUOUS" IF DIFFERENT STANDARDS GOVERNED THE
ASSERTION OF A PRIVILEGE TO REMAIN SILENT IN STATE AND FEDERAL
TRIBUNALS.  SUCH "INCONGRUITY," HOWEVER, IS AT THE HEART OF OUR FEDERAL
SYSTEM.  THE POWERS AND RESPONSIBILITIES OF THE STATE AND FEDERAL
GOVERNMENTS ARE NOT CONGRUENT; UNDER OUR CONSTITUTION, THEY ARE NOT
INTENDED TO BE.  WHY SHOULD IT BE THOUGHT, AS AN A PRIORI MATTER, THAT
LIMITATIONS ON THE INVESTIGATIVE POWER OF THE STATES ARE IN ALL
RESPECTS IDENTICAL WITH LIMITATIONS ON THE INVESTIGATIVE POWER OF THE
FEDERAL GOVERNMENT?  THIS CERTAINLY DOES NOT FOLLOW FROM THE FACT THAT
WE DEAL HERE WITH CONSTITUTIONAL REQUIREMENTS; FOR THE PROVISIONS OF
THE CONSTITUTION WHICH ARE CONSTRUED ARE DIFFERENT. 

AS THE COURT POINTED OUT IN ABBATE V. UNITED STATES, 359 U.S. 187,
195, "THE STATES UNDER OUR FEDERAL SYSTEM HAVE THE PRINCIPAL
RESPONSIBILITY FOR DEFINING AND PROSECUTING CRIMES."  THE COURT
ENDANGERS THIS ALLOCATION OF RESPONSIBILITY FOR THE PREVENTION OF CRIME
WHEN IT APPLIES TO THE STATE DOCTRINES DEVELOPED IN THE CONTEXT OF
FEDERAL LAW ENFORCEMENT, WITHOUT ANY ATTENTION TO THE SPECIAL PROBLEMS
WHICH THE STATES AS A GROUP OR PARTICULAR STATES MAY FACE.  IF THE
POWER OF THE STATES TO DEAL WITH LOCAL CRIME IS UNDULY RESTRICTED, THE
LIKELY CONSEQUENCE IS A SHIFT OF RESPONSIBILITY IN THIS AREA TO THE
FEDERAL GOVERNMENT, WITH ITS VASTLY GREATER RESOURCES.  SUCH A SHIFT,
IF IT OCCURS, MAY IN THE END SERVE TO WEAKEN THE VERY LIBERTIES WHICH
THE FOURTEENTH AMENDMENT SAFEGUARDS BY BRINGING US CLOSER TO THE
MONOLITHIC SOCIETY WHICH OUR FEDERALISM REJECTS.  EQUALLY DANGEROUS TO
OUR LIBERTIES IS THE ALTERNATIVE OF WATERING DOWN PROTECTIONS AGAINST
THE FEDERAL GOVERNMENT EMBODIED IN THE BILL OF RIGHTS SO AS NOT UNDULY
TO RESTRICT THE POWERS OF THE STATES.  THE DISSENTING OPINION IN
AGUILAR V. TEXAS, POST, P. 116, EVIDENCES THAT THIS DANGER IS NOT
IMAGINARY.  SEE MY CONCURRING OPINION IN AGUILAR, IBID. 

RATHER THAN INSISTING, ALMOST BY ROTE, THAT THE CONNECTICUT COURT, IN
CONSIDERING THE PETITIONER'S CLAIM OF PRIVILEGE, WAS REQUIRED TO APPLY
THE "FEDERAL STANDARD," THE COURT SHOULD HAVE FULFILLED ITS
RESPONSIBILITY UNDER THE DUE PROCESS CLAUSE BY INQUIRING WHETHER THE
PROCEEDINGS BELOW MET THE DEMANDS OF FUNDAMENTAL FAIRNESS WHICH DUE
PROCESS EMBODIES.  SUCH AN APPRACH MAY NOT SATISFY THOSE WHO SEE IN THE
FOURTEENTH AMENDMENT A SET OF EASILY APPLIED "ABSOLUTES" WHICH CAN
AFFORD A HAVEN FROM UNSETTLING DOUBT.  IT IS, HOWEVER, TRUER TO THE
SPIRIT WHICH REQUIRES THIS COURT CONSTANTLY TO RE-EXAMINE FUNDAMENTAL
PRINCIPLES AND AT THE SAME TIME ENJOINS IT FROM READING ITS OWN
PREFERENCES INTO THE CONSTITUTION. 

THE CONNECTICUT SUPREME COURT OF ERRORS GAVE FULL AND CAREFUL
CONSIDERATION TO THE PETITIONER'S CLAIM THAT HE WOULD INCRIMINATE
HIMSELF IF HE ANSWERED THE QUESTIONS PUT TO HIM.  IT NOTED THAT ITS
DECISIONS "FROM A TIME ANTEDATING THE ADOPTION OF  ...  THE CONNECTICUT
CONSTITUTION IN 1818" HAD UPHELD A PRIVILEGE TO REFUSE TO ANSWER
INCRIMINATING QUESTIONS.  150 CONN. 220, 223, 187 A.2D 744, 746. 
STATING THAT FEDERAL CASES TREATING THE FIFTH AMENDMENT PRIVILEGE HAD
"PERSUASIVE FORCE" IN INTERPRETING ITS OWN CONSTITUTIONAL PROVISION,
AND CITING HOFFMAN V. UNITED STATES, 341 U.S. 479, IN PARTICULAR, THE
SUPREME COURT OF ERRORS DESCRIBED THE REQUIREMENTS FOR ASSERTION OF THE
PRIVILEGE BY QUOTING FROM ONE OF ITS OWN CASES, 150 CONN., AT 225, 187
A.2D, AT 747: 

"A WITNESS  ...  HAS THE RIGHT TO REFUSE TO ANSWER ANY QUESTION WHICH
WOULD TEND TO INCRIMINATE HIM.  BUT A MERE CLAIM ON HIS PART THAT THE
EVIDENCE WILL TEND TO INCRIMINATE HIM IS NOT SUFFICIENT ...  .  HE
HAVING MADE HIS CLAIM, IT IS THEN  ...  NECESSARY FOR THE JUDGE TO
DETERMINE IN THE EXERCISE OF A LEGAL DISCRETION WHETHER, FROM THE
CIRCUMSTANCES OF THE CASE AND THE NATURE OF THE EVIDENCE WHICH THE
WITNESS IS CALLED UPON TO GIVE, THERE IS REASONABLE GROUND TO APPREHEND
DANGER OF CRIMINAL LIABILITY FROM HIS BEING COMPELLED TO ANSWER.  THAT
DANGER 'MUST BE REAL AND APPRECIABLE, WITH REFERENCE TO THE ORDINARY
OPERATION OF LAW IN THE ORDINARY COURSE OF THINGS - NOT A DANGER OF AN
IMAGINARY AND UNSUBSTANTIAL CHARACTER, HAVING REFERENCE TO SOME
EXTRAORDINARY AND BARELY POSSIBLE CONTINGENCY, SO IMPROBABLE THAT NO
REASONABLE MAN WOULD SUFFER IT TO INFLUENCE HIS CONDUCT.  WE THINK THAT
A MERELY REMOTE AND NAKED POSSIBILITY, OUT OF THE ORDINARY COURSE OF
LAW AND SUCH AS NO REASONABLE MAN WOULD BE AFFECTED BY, SHOULD NOT BE
SUFFERED TO OBSTRUCT THE ADMINISTRATION OF JUSTICE.  THE OBJECT OF THE
LAW IS TO AFFORD TO A PARTY, CALLED UPON TO GIVE EVIDENCE IN A
PROCEEDING INTER ALIOS, PROTECTION AGAINST BEING BROUGHT BY MEANS OF
HIS OWN EVIDENCE WITHIN THE PENALTIES OF THE LAW.  BUT IT WOULD BE TO
CONVERT A SALUTARY PROTECTION INTO A MEANS OF ABUSE IF IT WERE TO BE
HELD THAT A MERE IMAGINARY POSSIBILITY OF DANGER, HOWEVER REMOTE AND
IMPROBABLE, WAS SUFFICIENT TO JUSTIFY THE WITHHOLDING OF EVIDENCE
ESSENTIAL TO THE ENDS OF JUSTICE.'  COCKBURN, C.J., IN REGINA V. BOYES,
1 B.&S. 311, 330  ...  ."  MCCARTHY V. CLANCY, 110 CONN. 482, 488-489,
148 A.  551, 555. 

THE COURT CAREFULLY APPLIED THE ABOVE STANDARD TO EACH QUESTION WHICH
THE PETITIONER WAS ASKED.  IT DEALT FIRST WITH THE QUESTION WHETHER HE
KNEW JOHN BERGOTI.  THE COURT SAID: 

"BERGOTI IS NOWHERE DESCRIBED OR IN ANY WAY IDENTIFIED, EITHER AS TO
HIS OCCUPATION, ACTUAL OR REPUTED, OR AS TO ANY CRIMINAL RECORD HE MAY
HAVE HAD  ...  .  MALLOY MADE NO ATTEMPT EVEN TO SUGGEST TO THE COURT
HOW TO ANSWER TO THE QUESTION WHETHER HE KNEW BERGOTI COULD POSSIBLY
INCRIMINATE HIM  ...  .  ON THIS STATE OF THE RECORD THE QUESTION WAS
PROPER, AND MALLOY'S CLAIM OF PRIVILEGE, MADE WITHOUT EXPLANATION, WAS
CORRECTLY OVERRULED.  MALLOY 'CHOSE TO KEEP THE DOOR TIGHTLY CLOSED AND
TO DENY THE COURT THE SMALLEST GLIMPSE OF THE DANGER HE APPREHENDED. 
HE CANNOT THEN COMPLAIN THAT WE SEE NONE.'  IN RE PILLO, 11 N.J. 8, 22,
93 A.2D 176  ...  ."  150 CONN., AT 226-227, 187 A.2D, AT 748. 

THE REMAINING QUESTIONS ARE SUMMARIZED IN THE MAJORITY'S OPINION,
ANTE, P. 12.  ALL OF THEM DEAL WITH THE CIRCUMSTANCES SURROUNDING THE
PETITIONER'S CONVICTION ON A GAMBLING CHARGE IN 1959.  THE COURT
DECLINED TO DECIDE "WHETHER, ON THEIR FACE AND APART FROM ANY
CONSIDERATION OF MALLOY'S IMMUNITY FROM PROSECUTION, THE QUESTIONS
SHOULD OR SHOULD NOT HAVE BEEN ANSWERED IN THE LIGHT OF HIS FAILURE TO
GIVE ANY HINT OF EXPLANATION AS TO HOW ANSWERS TO THEM COULD
INCRIMINATE HIM."  150 CONN., AT 227, 187 A.2D, AT 748.  THE COURT
CONSIDERED THE STATE'S CLAIM THAT THE PETITIONER'S PRIOR CONVICTION WAS
SUFFICIENT TO CLOTHE HIM WITH IMMUNITY FROM PROSECUTION FOR OTHER
CRIMES TO WHICH THE QUESTIONS MIGHT PERTAIN, BUT DECLINED TO REST ITS
DECISION ON THAT BASIS.  ID., AT 227-229, 187 A.2D, AT 748-749.  THE
COURT CONCLUDED, HOWEVER, THAT THE RUNNING OF THE STATUTE OF
LIMITATIONS ON MISDEMEANORS COMMITTED IN 1959 AND THE ABSENCE OF ANY
INDICATION THAT MALLOY HAD ENGAGED IN ANY CRIME OTHER THAN A
MISDEMEANOR REMOVED ALL APPEARANCE OF DANGER OF INCRIMINATION FROM THE
QUESTIONS PROPOUNDED CONCERNING THE PETITIONER'S ACTIVITIES IN 1959. 
THE COURT SUMMARIZED THIS CONCLUSION AS FOLLOWS: 

"IN ALL THIS, MALLOY CONFOUNDS VAGUE AND IMPROBABLE POSSIBILITIES OF
PROSECUTION WITH REASONABLY APPRECIABLE ONES.  UNDER CLAIMS LIKE HIS,
IT WOULD ALWAYS BE POSSIBLE TO WORK OUT SOME FINESPUN AND IMPROBABLE
THEORY FROM WHICH AN OUTSIDE CHANCE OF PROSECUTION COULD BE
ENVISIONED.  SUCH CLAIMS ARE NOT ENOUGH TO SUPPORT A CLAIM OF
PRIVILEGE, AT LEAST WHERE, AS HERE, A WITNESS SUGGESTS NO RATIONAL
EXPLANATION OF HIS FEARS OF INCRIMINATION, AND THE QUESTIONS
THEMSELVES, UNDER ALL THE CIRCUMSTANCES, SUGGEST NONE."  ID., AT 230
231, 187 A.2D, AT 750. 

PEREMPTORILY REJECTING ALL OF THE CAREFUL ANALYSIS OF THE CONNECTICUT
COURT, THIS COURT CREATES ITS OWN "FINESPUN AND IMPROBABLE THEORY"
ABOUT HOW THESE QUESTIONS MIGHT HAVE INCRIMINATED THE PETITIONER.  WITH
RESPECT TO HIS ACQUAINTANCE WITH BERGOTI, THIS COURT SAYS ONLY: 

"IN THE CONTEXT OF THE INQUIRY, IT SHOULD HAVE BEEN APPARENT TO THE
REFEREE THAT BERGOTI WAS SUSPECTED BY THE STATE TO BE INVOLVED IN SOME
WAY IN THE SUBJECT MATTER OF THE INVESTIGATION.  AN AFFIRMATIVE ANSWER
TO THE QUESTION MIGHT WELL HAVE EITHER CONNECTED PETITIONER WITH A MORE
RECENT CRIME, OR AT LEAST HAVE OPERATED AS A WAIVER OF HIS PRIVILEGE
WITH REFERENCE TO HIS RELATIONSHIP WITH A POSSIBLE CRIMINAL."  ANTE,
PP. 13-14. 

THE OTHER FIVE QUESTIONS, TREATED AT LENGTH IN THE CONNECTICUT
COURT'S OPINION, GET EQUALLY SHORT SHRIFT FROM THIS COURT; IT TAKES THE
MAJORITY, UNFAMILIAR WITH CONNECTICUT LAW AND FAR REMOVED FROM THE
PROCEEDINGS BELOW, ONLY A DOZEN LINES TO CONSIDER THE QUESTIONS AND
CONCLUDE THAT THEY WERE INCRIMINATING:    "THE INTERROGATION WAS PART
OF A WIDE-RANGING INQUIRY INTO CRIME, INCLUDING GAMBLING, IN HARTFORD. 
IT WAS ADMITTED ON BEHALF OF THE STATE AT ORAL ARGUMENT - AND INDEED
IT IS OBVIOUS FROM THE QUESTIONS THEMSELVES - THAT THE STATE DESIRED TO
ELICIT FROM THE PETITIONER THE IDENTITY OF THE PERSON WHO RAN THE POOL
SELLING OPERATION IN CONNECTION WITH WHICH HE HAD BEEN ARRESTED IN
1959.  IT WAS APPARENT THAT PETITIONER MIGHT APPREHEND THAT IF THIS
PERSON WERE STILL ENGAGED IN UNLAWFUL ACTIVITY, DISCLOSURE OF HIS NAME
MIGHT FURNISH A LINK IN A CHAIN OF EVIDENCE SUFFICIENT TO CONNECT THE
PETITIONER WITH A MORE RECENT CRIME FOR WHICH HE MIGHT STILL BE
PROSECUTED."  (FOOTNOTE OMITTED.)  ANTE, P. 13. 

I DO NOT UNDERSTAND HOW ANYONE COULD READ THE OPINION OF THE
CONNECTICUT COURT AND CONCLUDE THAT THE STATE LAW WHICH WAS THE BASIS
OF ITS DECISION OR THE DECISION ITSELF WAS LACKING IN FUNDAMENTAL
FAIRNESS.  THE TRUTH OF THE MATTER IS THAT UNDER ANY STANDARD - STATE
OR FEDERAL - THE COMMITMENT FOR CONTEMPT WAS PROPER.  INDEED, AS
INDICATED ABOVE, THERE IS EVERY REASON TO BELIEVE THAT THE CONNECTICUT
COURT DID APPLY THE HOFFMAN STANDARD QUOTED APPROVINGLY IN THE
MAJORITY'S OPINION.  I ENTIRELY AGREE WITH MY BROTHER WHITE, POST, PP.
36-38, THAT IF THE MATTER IS VIEWED ONLY FROM THE STANDPOINT OF THE
FEDERAL STANDARD, SUCH STANDARD WAS FULLY SATISFIED.  THE COURT'S
REFERENCE TO A FEDERAL STANDARD IS, TO PUT IT BLUNTLY, SIMPLY AN EXCUSE
FOR THE COURT TO SUBSTITUTE ITS OWN SUPERFICIAL ASSESSMENT OF THE FACTS
AND STATE LAW FOR THE CAREFUL AND BETTER INFORMED CONCLUSIONS OF THE
STATE COURT.  NO ONE WHO SCANS THE TWO OPINIONS WITH AN OBJECTIVE EYE
WILL, I THINK, REACH ANY OTHER CONCLUSION. 

I WOULD AFFIRM. 

FN1  THAT PRECISE QUESTION HAS NOT HERETOFORE BEEN DECIDED BY THIS
COURT.  TWINING V. NEW JERSEY, 211 U.S. 78, AND THE CASES WHICH
FOLLOWED IT, SEE INFRA, P. 17, ALL INVOLVED ISSUES NOT PRECISELY
SIMILAR.  ALTHOUGH THE COURT HAS STATED BROADLY THAT AN INDIVIDUAL
COULD "BE REQUIRED TO INCRIMINATE HIMSELF IN  ...  STATE PROCEEDINGS,"
COHEN V. HURLEY, 366 U.S. 117, 127, THE CONTEXT IN WHICH SUCH
STATEMENTS WERE MADE WAS THAT THE STATE HAD IN EACH CASE RECOGNIZED THE
RIGHT TO REMAIN SILENT.  IN TWINING, SUPRA, UNTIL NOW THE PRIMARY
AUTHORITY, THE COURT NOTED THAT "ALL THE STATES OF THE UNION HAVE, FROM
TIME TO TIME, WITH VARYING FORM BUT UNIFORM MEANING, INCLUDED THE
PRIVILEGE IN THEIR CONSTITUTIONS, EXCEPT THE STATES OF NEW JERSEY AND
IOWA, AND IN THOSE STATES IT IS HELD TO BE PART OF THE EXISTING LAW,"
211 U.S., AT 92. 

WHILE I DO NOT BELIEVE THAT THE COERCED CONFESSION CASES FURNISH ANY
BASIS FOR INCORPORATING THE FIFTH AMENDMENT INTO THE FOURTEENTH, SEE
INFRA, PP. 17-20, THEY DO, IT SEEMS TO ME, CARRY AN IMPLICATION THAT
COERCION TO INCRIMINATE ONESELF, EVEN WHEN UNDER THE FORMS OF LAW, CF.
BROWN V. MISSISSIPPI, 297 U.S. 278, 285, DISCUSSED INFRA, PP. 17-18, IS
INCONSISTENT WITH DUE PROCESS.  SINCE EVERY STATE ALREADY RECOGNIZED A
PRIVILEGE AGAINST SELF-INCRIMINATION SO DEFINED, SEE VIII WIGMORE,
EVIDENCE (MCNAUGHTON REV. 1961), SEC 2252, THE EFFECT OF INCLUDING A
PRIVILEGE IN DUE PROCESS IS ONLY TO CREATE THE POSSIBILITY THAT A
FEDERAL QUESTION, TO BE DECIDED UNDER THE DUE PROCESS CLAUSE, WOULD BE
RAISED BY A STATE'S REFUSAL TO ACCEPT A CLAIM OF THE PRIVILEGE. 

FN2  SEE NOTE 1, SUPRA. 

FN3  NOTHING IN THE OPINION IN BROWN SUPPORTS THE COURT'S INTIMATION
HERE, ANTE, P. 6, THAT IF TWINING HAD NOT BEEN ON THE BOOKS, REVERSAL
OF THE CONVICTIONS WOULD HAVE BEEN BASED ON THE FIFTH AMENDMENT.  THE
COURT MADE IT PLAIN IN BROWN THAT IT REGARDED THE TRIAL USE OF A
CONFESSION EXTRACTED BY TORTURE AS ON A PAR WITH DOMINATION OF A TRIAL
BY A MOB, SEE, E.G., MOORE V. DEMPSEY, 261 U.S. 86, WHERE THE TRIAL "IS
A MERE PRETENSE," 297 U.S., AT 286. 

FN4  "AND SO, WHEN A CONVICTION IN A STATE COURT IS PROPERLY HERE FOR
REVIEW, UNDER A CLAIM THAT A RIGHT PROTECTED BY THE FOURTEENTH
AMENDMENT HAS BEEN DENIED, THE QUESTION IS NOT WHETHER THE RECORD CAN
BE FOUND TO DISCLOSE AN INFRACTION OF ONE OF THE SPECIFIC PROVISIONS OF
THE FIRST EIGHT AMENDMENTS.  TO COME CONCRETELY TO THE PRESENT CASE,
THE QUESTION IS NOT WHETHER THE RECORD PERMITS A FINDING, BY A TENUOUS
PROCESS OF PSYCHOLOGICAL ASSUMPTIONS AND REASONING, THAT MALINSKI BY
MEANS OF A CONFESSION WAS FORCED TO SELF-INCRIMINATION IN DEFIANCE OF
THE FIFTH AMENDMENT.  THE EXACT QUESTION IS WHETHER THE CRIMINAL
PROCEEDINGS WHICH RESULTED IN HIS CONVICTION DEPRIVED HIM OF THE DUE
PROCESS OF LAW BY WHICH HE WAS CONSTITUTIONALLY ENTITLED TO HAVE HIS
GUILT DETERMINED."  MALINSKI, SUPRA, AT 416 (OPINION OF FRANKFURTER,
J.). 

FN5  IN ADAMSON AND PALKO, SUPRA, WHICH ADHERED TO THE RULE ANNOUNCED
IN TWINING, SUPRA, THE COURT CITED SOME OF THE VERY CASES NOW RELIED ON
BY THE MAJORITY TO SHOW THAT TWINING WAS GRADUALLY BEING ERODED.  332
U.S., AT 54, NOTES 12, 13; 302 U.S., AT 325, 326. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

                                        I. 

THE FIFTH AMENDMENT SAFEGUARDS AN IMPORTANT COMPLEX OF VALUES, BUT IT
IS DIFFICULT FOR ME TO PERCEIVE HOW THESE VALUES ARE SERVED BY THE
COURT'S HOLDING THAT THE PRIVILEGE WAS PROPERLY INVOKED IN THIS CASE. 
WHILE PURPORTING TO APPLY THE PREVAILING FEDERAL STANDARD OF
INCRIMINATION - THE SAME STANDARD OF INCRIMINATION THAT THE CONNECTICUT
COURTS APPLIED - THE COURT HAS ALL BUT STATED THAT A WITNESS'
INVOCATION OF THE PRIVILEGE TO ANY QUESTION IS TO BE AUTOMATICALLY, AND
WITHOUT MORE, ACCEPTED.  WITH DEFERENCE, I PREFER THE RULE PERMITTING
THE JUDGE RATHER THAN THE WITNESS TO DETERMINE WHEN AN ANSWER SOUGHT IS
INCRIMINATING. 

THE ESTABLISHED RULE HAS BEEN THAT THE WITNESS' CLAIM OF THE
PRIVILEGE IS NOT FINAL, FOR THE PRIVILEGE QUALIFIES A CITIZEN'S GENERAL
DUTY OF DISCLOSURE ONLY WHEN HIS ANSWERS WOULD SUBJECT HIM TO DANGER
FROM THE CRIMINAL LAW.  THE PRIVILEGE AGAINST SELF-INCRIMINATION OR ANY
OTHER EVIDENTIARY PRIVILEGE DOES NOT PROTECT SILENCE WHICH IS SOLELY AN
EXPRESSION OF POLITICAL PROTEST, A DESIRE NOT TO INFORM, A FEAR OF
SOCIAL OBLOQUY OR ECONOMIC DISADVANTAGE OR FEAR OF PROSECUTION FOR
FUTURE CRIMES.  SMITH V. UNITED STATES, 337 U.S. 137, 147; BROWN V.
WALKER, 161 U.S. 591, 605.  IF THE GENERAL DUTY TO TESTIFY WHEN
SUBPOENAED IS TO REMAIN AND THE PRIVILEGE IS TO BE RETAINED AS A
PROTECTION AGAINST COMPELLED INCRIMINATING ANSWERS, THE TRIAL JUDGE
MUST BE PERMITTED TO MAKE A MEANINGFUL DETERMINATION OF WHEN ANSWERS
TEND TO INCRIMINATE.  SEE THE QUEEN V. BOYES, 1 B.&S.  311, 329-330
(1861); MASON V. UNITED STATES, 244 U.S. 362.  I DO NOT THINK TODAY'S
DECISION PERMITS SUCH A DETERMINATION. 

ANSWERS WHICH WOULD FURNISH A LEAD TO OTHER EVIDENCE NEEDED TO
PROSECUTE OR CONVICT A CLAIMANT OF A CRIME - CLUE EVIDENCE - CANNOT BE
COMPELLED, BUT "THIS PROTECTION MUST BE CONFINED TO INSTANCES WHERE THE
WITNESS HAS REASONABLE CAUSE TO APPREHEND DANGER FROM A DIRECT
ANSWER."  HOFFMAN V. UNITED STATES, 341 U.S. 479, AT 486; MASON V.
UNITED STATES, 244 U.S. 362.  OF COURSE THE WITNESS IS NOT REQUIRED TO
DISCLOSE SO MUCH OF THE DANGER AS TO RENDER HIS PRIVILEGE NUGATORY. 
BUT THAT DOES NOT JUSTIFY A FLAT RULE OF NO INQUIRY AND AUTOMATIC
ACCEPTANCE OF THE CLAIM OF PRIVILEGE.  IN DETERMINING WHETHER THE
WITNESS HAS REASONABLE APPREHENSION, THE TEST IN THE FEDERAL COURTS HAS
BEEN THAT THE JUDGE IS TO DECIDE FROM THE CIRCUMSTANCES OF THE CASE,
HIS KNOWLEDGE OF MATTERS SURROUNDING THE INQUIRY AND THE NATURE OF THE
EVIDENCE WHICH IS DEMANDED FROM THE WITNESS.  HOFFMAN V. UNITED STATES,
341 U.S. 479; MASON V. UNITED STATES, 244 U.S. 362.  CF. ROGERS V.
UNITED STATES, 340 U.S. 367.  THIS RULE SEEKS AND ACHIEVES A WORKABLE
ACCOMODATION BETWEEN WHAT ARE OBVIOUSLY IMPORTANT COMPETING INTERESTS. 
AS MR. CHIEF JUSTICE MARHSALL SAID:  "THE PRINCIPLE WHICH ENTITLES THE
UNITED STATES TO THE TESTIMONY OF EVERY CITIZEN, AND THE PRINCIPLE BY
WHICH EVERY WITNESS IS PRIVILEGED NOT TO ACCUSE HIMSELF, CAN NEITHER OF
THEM BE ENTIRELY DISREGARDED  ...  .  WHEN A QUESTION IS PROPOUNDED, IT
BELONGS TO THE COURT TO CONSIDER AND TO DECIDE WHETHER ANY DIRECT
ANSWER TO IT CAN IMPLICATE THE WITNESS."  IN RE WILLIE, 25 FED. CAS.
NO. 14,692E, AT 39-40.  IT WOULD NOT ONLY RETAIN THIS RULE BUT APPLY IT
IN ITS PRESENT FORM.  UNDER THIS TEST, MALLOY'S REFUSALS TO ANSWER
SOME, IF NOT ALL, OF THE QUESTIONS PUT TO HIM WERE CLEARLY NOT
PRIVILEGED. 

II. 

IN NOVEMBER 1959, MALLOY WAS ARRESTED IN A GAMBLING RAID IN HARTFORD
AND WAS CONVICTED OF POOL SELLING, AN OFFENSE DEFINED AS OCCUPYING AND
KEEPING A BUILDING CONTAINING GAMBLING APARATUS.  AFTER A 90-DAY JAIL
TERM, HIS ONE-YEAR SENTENCE WAS SUSPENDED AND MALLOY WAS PLACED ON
PROBATION FOR TWO YEARS.  IN EARLY 1961, MALLOY WAS SUMMONED TO APPEAR
IN AN INVESTIGATION INTO WHETHER CRIMES, INCLUDING GAMBLING, HAD BEEN
COMMITTED IN HARTFORD COUNTY, AND WAS ASKED VARIOUS QUESTIONS OBVIOUSLY
AND SOLELY DESIGNED TO ASCERTAIN WHO MALLOY'S ASSOCIATES WERE IN
CONNECTION WITH HIS POOL-SELLING ACTIVITIES IN HARTFORD IN 1959. 
MALLOY INITIALLY REFUSED TO ANSWER VIRTUALLY ALL THE QUESTIONS PUT TO
HIM, INCLUDING SUCH INNOCUOUS ONES AS WHETHER HE WAS THE WILLIAM MALLOY
ARRESTED AND CONVICTED OF POOL SELLING IN 1959.  AFTER HE WAS ADVISED
TO CONSULT WITH COUNSEL AND DID SO, HE DECLINED TO ANSWER EACH OF THE
FOLLOWING QUESTIONS ON THE GROUND THAT IT WOULD TEND TO INCRIMINATE
HIM: 

"Q.  NOW, ON SEPTEMBER 11, 1959, WHEN YOU WERE ARRESTED AT 600 ASYLUM
STREET, AND THE SAME ARREST FOR WHICH YOU WERE CONVICTED IN THE
SUPERIOR COURT ON NOVEMBER 5, 1959, FOR WHOM WERE YOU WORKING?" 

*         *         *         *         * 

"Q.  ON SEPTEMBER 11, 1959, WHEN YOU WERE ARRESTED, AND THE SAME
ARREST FOR WHICH YOU WERE CONVICTED IN THE SUPERIOR COURT ON NOVEMBER
5, 1959, WHO FURNISHED THE MONEY TO PAY YOUR FINE WHEN YOU WERE
CONVICTED IN THE SUPERIOR COURT? 

     *         *         *        *         * 

"Q.  AFTER YOUR ARREST ON SEPTEMBER 11, 1959, AND THE SAME ARREST FOR
WHICH YOU WERE CONVICTED ON NOVEMBER 5, 1959, WHO SELECTED YOUR
BONDSMAN? 

     *         *         *         *         * 

"Q.  AS A RESULT OF YOUR ARREST ON SEPTEMBER 11, 1959, AND THE SAME
ARREST FOR WHICH YOU WERE CONVICTED ON NOVEMBER 5, 1959, WHO FURNISHED
THE MONEY TO PAY YOUR FINE? 

     *         *         *         *  * 

"Q.  DO YOU KNOW WHOSE APARTMENT IT WAS THAT YOU WERE ARRESTED IN ON
SEPTEMBER 11, 1959? 

     *         *  *         *         * 

"Q.  DO YOU KNOW JOHN BERGOTI? 

   *         *         *         *         * 

"Q.  I ASK YOU AGAIN MR. MALLOY, NOW, SO THERE WILL BE NO
MISUNDERSTANDING OF WHAT I WANT TO KNOW.   WHEN YOU WERE ARRESTED ON
SEPTEMBER 11, 1959, AT 600 ASYLUM STREET IN HARTFORD, AND THE SAME
ARREST FOR WHICH YOU WERE CONVICTED IN SUPERIOR COURT ON NOVEMBER 5,
1959, FOR WHOM WERE YOUR WORKING?" 

IT WAS FOR REFUSING TO ANSWER THESE QUESTIONS THAT MALLOY WAS CITED
FOR CONTEMPT, THE CONNECTICUT COURTS NOTING THAT THE PRIVILEGE DOES NOT
PROTECT ONE AGAINST INFORMING ON FRIENDS OR ASSOCIATES. 

THESE WERE NOT WHOLLY INNOCUOUS QUESTIONS ON THEIR FACE, BUT THEY
CLEARLY WERE IN LIGHT OF THE FINDING, OF WHICH MALLOY WAS TOLD, THAT HE
WAS IMMUNE FROM PROSECUTION FOR ANY POOL-SELLING ACTIVITIES IN 1959. 
AS THE CONNECTICUT SUPREME COURT OF ERRORS FOUND, THE STATE BORE ITS
BURDEN OF PROVING THAT THE STATUTE OF LIMITATIONS BARRED ANY
PROSECTUION FOR ANY TYPE OF VIOLATION OF THE STATE POOL-SELLING STAUTE
IN 1959.  MALLOY ADVANCED THE CLAIM BEFORE THE CONNECTICUT COURTS, AND
AGAIN BEFORE THIS COURT, THAT HE COULD PERHAPS BE PROSECUTED FOR A
CONSPIRACY AND THAT THE STATUTE OF LIMITATIONS ON A FELONY WAS FIVE
YEARS.  BUT THE CONNECTICUT COURTS WERE UNABLE TO FIND ANY STATE
STATUTE WHICH MALLOY'S GAMBLING ACTIVITIES IN 1959 IN HARTFORD, THE
SUBJECT OF THE INQUIRY, COULD HAVE VIOLATED AND MALLOY HAS NOT YET
POINTED TO ONE.  BEYOND THIS MALLOY DECLINED TO OFFER ANY EXPLANATIONS
OR HINT AT HOW THE ANSWERS SOUGHT COULD HAVE INCRIMINATED HIM.  IN
THESE CIRCUMSTANCES IT IS WHOLLY SPECULATIVE TO FIND THAT THE QUESTIONS
ABOUT OTHERS, NOT MALLOY, POSED A SUBSTANTIAL HAZARD OF CRIMINAL
PROSECUTION TO MALLOY.  THEORETICALLY, UNDER SOME UNKNOWN BUT PERHAPS
POSSIBLE CONDITIONS ANY FACT IS POTENTIALLY INCRIMINATING.  BUT IF THIS
BE THE RULE, THERE OBVIOUSLY IS NO REASON FOR THE JUDGE, RATHER THAN
THE WITNESS, TO PASS ON THE CLAIM OF PRIVILEGE.  THE PRIVILEGE BECOMES
A GENERAL ONE AGAINST ANSWERING DISTASTEFUL QUESTIONS. 

THE COURT FINDS THAT THE QUESTIONS WERE INCRIMINATING BECAUSE
PETITIONER "MIGHT APPREHEND THAT IF HIS ASSOCIATES IN 1959 WERE STILL
ENGAGED IN UNLAWFUL ACTIVITY, DISCLOSURE OF THEIR NAMES MIGHT FURNISH A
LINK IN A CHAIN OF EVIDENCE SUFFICIENT TO CONNECT THE PETITIONER WITH A
MORE RECENT CRIME FOR WHICH HE MIGHT STILL BE PROSECUTED."  ANTE, P.
13.  THE ASSUMPTION NECESSARY TO THE ABOVE REASONING IS THAT ALL
PERSONS, OR ALL WHO HAVE COMMITTED A MISDEMEANOR, ARE CONTINUOUSLY
ENGAGED IN CRIME.  THIS IS BUT ANOTHER WAY OF MAKING THE CLAIM OF
PRIVILEGE AUTOMATIC.  IT IS NOT ONLY UNREALISTIC GENERALLY BUT
PECULIARLY INAPPROPRIATE IN THIS CASE.  UNLIKE CASES RELIED ON BY THE
COURT, LIKE HOFFMAN V. UNITED STATES, SUPRA, WHERE THE CLAIMANT WAS
KNOWN TO BE INVOLVED IN RACKETS IN THE AREA, WHICH WERE THE SUBJECT OF
THE INQUIRY, AND HAD A "BROADLY PUBLISHED POLICY RECORD," MALLOY HAD NO
RECORD AS A FELON.  HE HAD ENGAGED ONCE IN AN UNLAWFUL ACTIVITY - POOL
SELLING - A MISDEMEANOR AND WAS GIVEN A SUSPENDED SENTENCE.  HE HAD
BEEN ON PROBATION SINCE THAT TIME AND WAS ON PROBATION AT THE TIME OF
THE INQUIRY.  AGAIN, UNLIKE HOFFMAN, NOTHING IN THESE QUESTIONS
INDICATES PETITIONER WAS CALLED BECAUSE HE WAS SUSPECTED OF CRIMINAL
ACTIVITIES AFTER 1959.  THERE IS NO SUPPORT AT ALL IN THIS RECORD FOR
THE CYNICAL ASSUMPTION THAT HE HAD COMMITTED CRIMINAL ACTS AFTER HIS
RELEASE IN 1960.    EVEN ON THE COURT'S ASSUMPTION THAT PERSONS
CONVICTED OF A MISDEAMNOR ARE NECESSARILY SUSPECT CRIMINALS, SUSTAINING
THE PRIVILEGE IN THESE CIRCUMSTANCES IN UNWARRANTED, FOR MALLOY PLACED
NO RELIANCE ON THIS THEORY IN THE COURTS BELOW OR IN THIS COURT.  IN
ORDER TO ALLOW THE JUDGE PASSING ON THE CLAIM TO UNDERSTAND HOW THE
ANSWERS SOUGHT ARE INCRIMINATING, I WOULD AT LEAST REQUIRE THE CLAIMANT
TO STATE HIS GROUNDS FOR ASSERTING THE PRIVILEGE TO QUESTIONS SEEMINGLY
IRRELEVANT TO ANY INCRIMINATING MATTERS. 

ADHERENCE TO THE FEDERAL STANDARD OF INCRIMINATION STATED IN MASON
AND HOFFMAN, SUPRA, IN FORM ONLY, WHILE ITS CONTENT IS ERODED IN
APPLICATION, IS HARDLY AN AUSPICIOUS BEGINNING FOR APPLICATION OF THE
PRIVILEGE TO THE STATES.  AS WAS WELL STATED IN A CLOSELY ANALOGOUS
SITUATION, "TO CONTINUE A RUZE WHICH IS HONORED BY THIS COURT ONLY WITH
LIP SERVICE IS NOT A HEALTHY THING AND IN THE LONG RUN WILL DO
DISSERVICE TO THE FEDERAL SYSTEM."  GIDEON V. WAINWRIGHT, 372 U.S. 335,
AT 351 (HARLAN, J., CONCURRING). 

I WOULD AFFIRM. 
..END :



















UNITED STATES V. BOYD, COMMISSIONER 378 U.S. 39 


NO. 185.  ARGUED APRIL 20-21, 1964.  - DECIDED JUNE 15, 1964.  - 211
TENN. 139, 363 S.W.2D 193, AFFIRMED. 


THE APPELLANTS SEEK A REFUND OF SALES AND USE TAXES IMPOSED BY THE
STATE OF TENNESSEE ON CONTRACTORS USING TANGIBLE PERSONAL PROPERTY IN
THE STATE IN THE PERFORMANCE OF THE CONTRACT.  THE CONTRACTOR'S USE TAX
IS ASSESSED NO MATTER WHO HAS TITLE TO THE PROPERTY, OR WHETHER THE
TITLEHOLDER IS SUBJECT TO A SALES OR COMPENSATING USE TAX, UNLESS SUCH
TAXES HAVE BEEN PAID THEREON.  THE APPELLANT CONTRACTORS HAVE COST-PLUS
FIXED-FEE MANAGEMENT AND CONSTRUCTION CONTRACTS WITH THE ATOMIC ENEGERY
COMMISSION AT OAK RIDGE, TENNESSEE, UNDER WHICH THE UNITED STATES HOLDS
TITLE TO ANY PROPERTY USED IN CONNECTION WITH THE PERFORMANCE OF THE
CONTRACT.  THE STATE SUPREME COURT HELD THE SALES TAX COULD NOT BE
COLLECTED BUT UPHELD THE CONTRACTOR'S USE TAX, FINDING THAT THE
APPELLANT COMPANIES WERE INDEPENDENT CONTRACTORS AND TAXABLE ON THEIR
PRIVATE USE, FOR GAIN, OF GOVERNMENT-OWNED PROPERTY.  HELD: 

1.  THE USE OF GOVERNMENT-OWNED PROPERTY BY A FEDERAL CONTRACTOR, IN
CONNECTION WITH COMMERCIAL ACTIVITIES, FOR HIS PROFIT OR GAIN, IS A
SEPARATE TAXABLE ACTIVITY, EVEN IF THE TAX IS FINALLY BORNE BY THE
UNITED STATES.  PP. 44-48. 

(A)  IT IS NOT MATERIAL WHETHER THE CONTRACTOR IS MAKING PRODUCTS FOR
SALE TO THE GOVERNMENT, OR IS FURNISHING SERVICES.  P. 46. 

(B)  THE APPELLANT CONTRACTORS, OPERATING FOR PROFIT ON A COST-PLUS
BASIS, DID NOT BECOME INSTRUMENTALITIES OF THE UNITED STATES AND THUS
PARTAKE OF GOVERNMENTAL IMMUNITY.  PP.  47-48. 

2.  ALTHOUGH PAYMENT OF USE TAXES WILL INCREASE THE COST OF THE
ATOMIC ENERGY PROGRAM, CONGRESS WAS AWARE OF THE PROBLEM WHEN IT
REPEALED SEC 9(B) OF THE ATOMIC ENERGY ACT IN 1953.  PP. 49-51. 

UNITED STATES ET AL. V. BOYD, COMMISSIONER. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN CARSON V. ROANE-ANDERSON CO., 342 U.S. 232, IT WAS HELD THAT SEC
9(B) OF THE ATOMIC ENERGY ACT (FN1)  BARRED THE COLLECTION OF THE
TENNESSEE SALES AND USE TAX IN CONNECTION WITH SALES TO PRIVATE
COMPANIES OF PERSONAL PROPERTY USED BY THEM IN FULFILLING THEIR
CONTRACTS WITH THE ATOMIC ENERGY COMMISSION.  IN 1953, CONGRESS
REPEALED THE STATUTOTY IMMUNITY FOR ACTIVITIES AND PROPERTIES OF THE
AEC CONTAINED IN SEC 9(B) IN ORDER TO PLACE ATOMIC ENERGY COMMISSION
CONTRACTORS ON THE SAME FOOTING AS OTHER CONTRACTORS PERFORMING WORK
FOR THE GOVERNMENT.  (FN2)  IN 1955 TENNESSEE AMENDED ITS STATUTE BY
ADDING A CONTRACTOR'S USE TAX WHICH IMPOSES A TAX UPON CONTRACTORS
USING PROPERTY IN THE PERFORMANCE OF THEIR CONTRACTS WITH OTHERS,
IRRESPECTIVE OF THE OWNERSHIP OF THE PROPERTY AND OF THE PLACE WHERE
THE GOODS ARE PURCHASED.  THIS TAX, AT THE SALES AND USE TAX RATE, IS
MEASURED BY THE PURCHASE PRICE OR FAIR MARKET VALUE OF THE PROPERTY
USED BY THE CONTRACTOR AND IS TO BE COLLECTED ONLY WHEN A SALES TAX ON
LOCAL PURCHASES OR A COMPENSATING USE TAX ON OUT-OF-STATE GOODS HAS NOT
PREVIOUSLY BEEN COLLECTED IN CONNECTION WITH THE SAME PROPERTY.  (FN3) 

UNION CARBIDE CORP. AND H.K. FERGUSON CO. HAVE CONTRACTS WITH THE
ATOMIC ENERGY COMMISSION RELATING TO WORK AND SERVICES TO BE PERFORMED
AT THE OAK RIDGE, TENNESSEE, COMPLEX.  CARBIDE'S CONTRACT OBLIGATES IT
TO MANAGE, OPERATE AND MAINTAIN THE OAK RIDGE PLANTS AND FACILITIES IN
ACCORDANCE WITH SUCH DIRECTIONS AND INSTRUCTIONS NOT INCONSISTENT WITH
THE CONTRACT AS THE COMMISSION DEEMS NECESSARY TO ISSUE FROM TIME TO
TIME.  IN THE ABSENCE OF APPLICABLE INSTRUCTIONS, CARBIDE IS TO USE ITS
BEST JUDGMENT, SKILL AND CARE IN ALL MATTERS PERTAINING TO
PERFORMANCE.  CARBIDE IS CHARGED WITH THE DUTY OF PROCURING MATERIALS,
SUPPLIES, EQUIPMENT AND FACILITIES ALTHOUGH THE GOVERNMENT RETAINS THE
RIGHT TO FURNISH ANY OF THESE ITEMS.  PAYMENT FOR PURCHASES IS TO BE
MADE WITH GOVERNMENT FUNDS, AND TITLE TO ALL PROPERTY PASSES DIRECTLY
FROM THE VENDOR TO THE UNITED STATES.  (FN4)  CARBIDE IS GENERALLY FREE
TO MAKE PURCHASES UP TO $100,000 WITHOUT PRIOR APPROVAL. 

ALTHOUGH CARBIDE EXERCISES CONSIDERABLE MANAGERIAL DISCRETION FROM
DAY TO DAY IN PERFORMING THE CONTRACT, THE COMMISSION RETAINS THE RIGHT
TO CONTROL, DIRECT AND SUPERVISE THE PERFORMANCE OF THE WORK AND HAS
ISSUED DIRECTIONS AND INSTRUCTIONS GOVERNING LARGE AREAS OF THE
OPERATION.  CARBIDE HAS NO INVESTMENT IN THE OAK RIDGE FACILITY AND AT
THE TIME OF THIS LITIGATION EMPLOYED SOME 12,000 EMPLOYEES AND
SUPERVISORS TO PERFORM THE CONTRACT.  ITS ANNUAL FEE, RENEGOTIATED
PERIODICALLY, WAS $2,751,000 AT THE TIME OF SUIT. 

THE FERGUSON CONTRACT WAS A CONTRACT TO PERFORM CONSTRUCTION SERVICES
RELATING BOTH TO NEW FACILITIES AND TO THE MODIFICATION OF THE EXISTING
PLANT.  THE CONTRACT CALLED FOR PERFORMING THOSE PROJECTS ORDERED BY
THE COMMISSION.  FERGUSON ALSO OPERATED UNDER INSTRUCTIONS AND
DIRECTIONS OF THE AEC, IT OWNED NONE OF THE PROPERTY USED IN THE
PERFORMANCE OF ITS CONTRACT AND ITS PURCHASES OF THE PROPERTY WERE
HANDLED IN A MANNER SIMILAR TO THAT EMPLOYED IN THE CASE OF CARBIDE
EXCEPT THAT FERGUSON WAS FREE TO PURCHASE WITHOUT THE CONSENT OF THE
COMMISSION ONLY UP TO $10,000.  FERGUSON'S COMPENSATION IS NEGOTIATED
TWICE A YEAR ON THE BASIS OF THE VALUE OF THE SERVICES FERGUSON
PERFORMED DURING THE PRECEDING SIX MONTHS, A FEE OF $20,000 HAVING BEEN
PAID FOR THE SIX MONTHS PRECEDING SUIT. 

TENNESSEE COLLECTED FROM CARBIDE AND FERGUSON A SALES AND
CONTRACTOR'S USE TAX UPON PURCHASES MADE BY THEM UNDER THEIR CONTRACTS
WITH THE COMMISSION.  THE COMPANIES AND THE AEC SUED TO RECOVER THESE
TAXES CLAIMING THAT THEIR COLLECTION INFRINGED UPON THE IMPLIED
CONSTITUTIONAL IMMUNITY OF THE UNITED STATES.  THE TENNESSEE SUPREME
COURT REFUSED TO PERMIT THE COLLECTION OF THE SALES TAX  (FN5)  BUT
SUSTAINED THE COLLECTION OF THE CONTRACTOR'S USE TAX.  THIS TAX, IT WAS
HELD, IS IMPOSED UPON THE USE BY A CONTRACTOR OF TANGIBLE PERSONAL
PROPERTY WHETHER THE TITLE IS IN HIM OR IN ANOTHER, AND WHETHER OR NOT
THE OTHER HAS IMMUNITY FROM STATE TAXATION.  THE CONTRACTOR'S TAX "WAS
INTENDED TO BE AND IS A TAX UPON THE USE PER SE BY SUCH A CONTRACTOR
...  .  THE TAX IS ON HIS PRIVATE USE FOR HIS OWN PROFIT AND GAIN, AND
NOT A TAX DIRECTLY UPON THE GOVERNMENT."  211 TENN. 139, 163, 164, 363
S.W.2D 193, 203, 204.  WE NOTED PROBABLE JURISDICTION TO RESOLVE
ANOTHER OF THE RECURRING CONFLICTS BETWEEN THE POWER OF THE STATE TO
TAX PERSONS DOING BUSINESS WITHIN ITS BORDERS AND THE IMMUNITY OF THE
FEDERAL GOVERNMENT, ITS INSTRUMENTALITIES AND PROPERTY FROM STATE
TAXATION.  375 U.S. 808.  WE AFFIRM. 

THE CONSTITUTION IMMUNIZES THE UNITED STATES AND ITS PROPERTY FROM
TAXATION BY THE STATES, M'CULLOCH V. MARYLAND, 4 WHEAT.  316, BUT IT
DOES NOT FORBID A TAX WHOSE LEGAL INCIDENCE IS UPON A CONTRACTOR DOING
BUSINESS WITH THE UNITED STATES, EVEN THOUGH THE ECONOMIC BURDEN OF THE
TAX, BY CONTRACT OR OTHERWISE, IS ULTIMATELY BORNE BY THE UNITED
STATES.  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134; GRAVES V. NEW
YORK, 306 U.S. 466; ALABAMA V. KING & BOOZER, 314 U.S. 1.  NOR IS IT
FORBIDDEN FOR A STATE TO TAX THE BENEFICIAL USE BY A FEDERAL CONTRACTOR
OF PROPERTY OWNED BY THE UNITED STATES, EVEN THOUGH THE TAX IS MEASURED
BY THE VALUE OF THE GOVERNMENT'S PROPERTY, UNITED STATES V. CITY OF
DETROIT, 355 U.S. 466, AND EVEN THOUGH HIS CONTRACT IS FOR GOODS OR
SERVICES FOR THE UNITED STATES.  CURRY V. UNITED STATES, 314 U.S. 14;
ESSO STANDARD OIL CO. V. EVANS, 345 U.S. 495; UNITED STATES V. TOWNSHIP
OF MUSKEGON, 355 U.S. 484.  THE USE BY THE CONTRACTOR FOR HIS OWN
PRIVATE ENDS - IN CONNECTION WITH COMMERCIAL ACTIVITIES CARRIED ON FOR
PROFIT - IS A SEPARATE AND DISTINCT TAXABLE ACTIVITY. 

THE UNITED STATES ACCEPTS ALL THIS BUT INSISTS THAT UNDER THE PRESENT
CONTRACTS CARBIDE'S AND FERGUSON'S USE OF GOVERNMENT PROPERTY IS NOT
USE BY THEM FOR THEIR OWN COMMERCIAL ADVANTAGE WHICH THE STATE MAY TAX
BUT A USE EXCLUSIVELY FOR THE BENEFIT OF THE UNITED STATES.  SINCE THEY
ARE PAID FOR THEIR SERVICES ONLY, MAKE NO PRODUCTS FOR SALE TO THE
GOVERNMENT OR OTHERS, HAVE NO INVESTMENT IN THE OAK RIDGE FACILITY, DO
NOT STAND TO GAIN OR LOSE BY THEIR EFFICIENT OR NONEFFICIENT USE OF THE
PROPERTY, AND TAKE NO ENTREPRENEURIAL RISKS, THEIR USE OF GOVERNMENT
PROPERTY, IT IS CLAIMED, IS IN REALITY USE BY THE UNITED STATES. 

WE ARE NOT PERSUADED.  IN THE FIRST PLACE, FROM THE FACTS IN THIS
RECORD IT IS INCREDIBLE TO CONCLUDE THAT THE USE OF GOVERNMENT-OWNED
PROPERTY WAS FOR THE SOLE BENEFIT OF THE GOVERNMENT.  BOTH COMPANIES
HAVE A SUBSTANTIAL STAKE IN THE OAK RIDGE OPERATION AND A SEPARATE
TAXABLE INTEREST.  BOTH COMPANIES MAINTAIN A SIZABLE NUMBER OF
EMPLOYEES AT OAK RIDGE, CARBIDE SOME 12,000 MEN AND FERGUSON AT TIMES
OVER 1,000, AND BOTH COMPANIES WERE PAID SIZABLE FEES OVER AND ABOVE
THEIR COST, CARBIDE OVER $2,000,000 A YEAR.  NO ONE SUGGESTS THAT
EITHER CARBIDE OR FERGUSON HAS PUT PROFIT ASIDE IN CONTRACTING WITH THE
COMMISSION, THAT THE FEE OF EITHER COMPANY IS NOT SET WITH COMMERCIAL,
PROFIT-MAKING CONSIDERATIONS IN MIND OR THAT THE OPERATIONS OF EITHER
COMPANY AT OAK RIDGE WERE NOT AN IMPORTANT PART OF THEIR REGULAR
BUSINESS OPERATIONS.  "THE VITAL THING" IS THAT CARBIDE, AS WELL AS
FERGUSON, "WAS USING THE PROPERTY IN CONNECTION WITH ITS OWN COMMERCIAL
ACTIVITIES."  UNITED STATES V. TOWNSHIP OF MUSKEGON, 355 U.S. 484,
486.  (FN6) 

SECONDLY, IT DOES NOT HELP AT ALL TO SAY THAT THE COMPANIES WERE
ENGAGED IN FURNISHING SERVICES ONLY, HAD NO INVESTMENT OR RISKS AMD
MADE NO PRODUCTS FOR SALE TO THE GOVERNMENT OR TO OTHERS.  UNDOUBTEDLY
A SERVICE INDUSTRY HAS DIFFERENT CHARACTERISTICS THAN A MANUFACTURING
OPERATION, BUT THE DIFFERENCES ARE IRRELEVANT FOR PRESENT PURPOSES. 
THE COMMERCIAL WORLD IS REPLETE WITH PROFIT-MAKING SERVICE INDUSTRIES
CONTRACTING WITH THE GOVERNMENT ON A COST-PLUS BASIS, USING GOVERNMENT
PROPERTIES IN THE PERFORMANCE OF THE CONTRACT AND PURSUING THEIR OWN
COMMERCIAL ENDS WITHIN THE MEANING OF UNITED STATES V. TOWNSHIP OF
MUSKEGON, SUPRA.  WHETHER MANUFACTURING PRODUCTS FOR SALE TO THE
GOVERNMENT OR FURNISHING SERVICES, THE COST-PLUS CONTRACTOR HAS
UNDERTAKEN CONTRACTUAL OBLIGATIONS.  IF HE PROPERLY PERFORMS HIS
CONTRACT, HE EARNS HIS FEE; IF HE DOES NOT, HE MAY LOSE THE CONTRACT,
BE LIABLE FOR DAMAGES AND BE FORCED TO LIQUIDATE THE ORGANIZATION WHICH
WAS BUILT TO PERFORM THE CONTRACT.  WHATEVER LIMITATIONS THERE ARE ON
ENTREPRENEURIAL RISKS DERIVE FROM THE FACT THE COMPANIES PERFORM UNDER
COST-PLUS-FIXED-FEE CONTRACTS, A WIDESPREAD METHOD OF CONTRACTING WITH
THE GOVERNMENT.  THE GOVERNMENT'S ARGUMENT, IF ACCEPTED, WOULD NOT ONLY
INSULATE THE COST-PLUS MANAGEMENT CONTRACTOR FROM STATE TAXATION BUT
ALSO THOSE WHO MAKE PRODUCTS OR PERFORM CONSTRUCTION WORK ON A COST
PLUS BASIS, A RESULT FORECLOSED BY THE COURT'S PRIOR DECISIONS WHICH
THE GOVERNMENT SEEMS TO ACCEPT.  CURRY V. UNITED STATES, SUPRA; UNITED
STATES V. TOWNSHIP OF MUSKEGON, SUPRA. 

IN MUSKEGON, SUPRA, THE COURT REMARKED THAT "THE CASE MIGHT WELL BE
DIFFERENT IF THE GOVERNMENT HAD RESERVED SUCH CONTROL OVER THE
ACTIVITIES AND FINANCIAL GAIN OF CONTINENTAL THAT IT COULD PROPERLY BE
CALLED A 'SERVANT' OF THE UNITED STATES IN AGENCY TERMS."  THE
GOVERNMENT URGES THAT THIS IS SUCH A CASE.  ACCORDING TO THE
GOVERNMENT, THIS CASE SHOULD BE VIEWED AS THOUGH THE COMMISSION WAS
DOING ITS OWN WORK THROUGH ITS OWN EMPLOYEES, THE LEGAL INCIDENCE OF
THE TAX THEREFORE FALLING ON IT.  BUT, AS IN MUSKEGON, WE CANNOT
BELIEVE THAT EITHER CARBIDE OR FERGUSON WAS "SO ASSIMILATED BY THE
GOVERNMENT AS TO BECOME ONE OF ITS CONSTITUENT PARTS."  355 U.S. AT
486. 

BECAUSE OF THE EXTRAORDINARY RANGE AND COMPLEXITY OF THE WORK TO BE
PERFORMED IN THE RESEARCH AND DEVELOPMENT OF ATOMIC ENERGY, CONGRESS
EMPOWERED THE AEC TO CHOOSE BETWEEN PERFORMING THESE UNDERTAKINGS
DIRECTLY, THROUGH ITS OWN FACILITIES, PERSONNEL AND STAFF, AND SEEKING
THE ASSISTANCE OF PRIVATE ENTERPRISE BY MEANS OF GRANTS AND CONTRACTS. 
ACT OF AUGUST 30, 1954, C. 1073, 68 STAT. 919, 927-928, 42 U.S.C. SECS
2051(A), 2052.  IN ORDER TO UTILIZE THE SKILL, TECHNICAL KNOW-HOW,
KNOWLEDGE AND EXPERIENCE OF AMERICAN INDUSTRY, THE GOVERNMENT HAS,
SINCE THE INCEPTION OF THE ATOMIC ENERGY PROGRAM, GENERALLY CHOSEN
PRIVATE COMPANIES TO CONDUCT THE VARIOUS AND SUNDRY ACTIVITIES INVOLVED
IN THE UNDERTAKING, INCLUDING THE MANAGEMENT AND OPERATION OF ATOMIC
ENERGY PLANTS.  SEE CARSON V. ROANE-ANDERSON CO., SUPRA.  AS IS WELL
STATED IN THE PREFACE TO CARBIDE'S CONTRACT: 

"SUCH AGREEMENT AROSE OUT OF THE NEED FOR THE SERVICES OF AN
ORGANIZATION WITH PERSONNEL OF PROVED CAPABILITIES, BOTH TECHNICAL AND
ADMINISTRATIVE, TO MANAGE AND OPERATE CERTAIN FACILITIES OF THE
COMMISSION AND TO PERFORM CERTAIN WORK AND SERVICES FOR THE COMMISSION;
AND THE COMMISSION RECOGNIZES THE CORPORATION AS AN ORGANIZATION HAVING
SUCH PERSONNEL, AND THAT THE INITIATIVE, INGENUITY AND OTHER
QUALIFICATIONS OF SUCH PERSONNEL SHOULD BE EXERCISED  ...  TO THE
FULLEST EXTENT PRACTICABLE  ...  ." 

THE HELP OF THESE COMPANIES WAS NOT SOUGHT MERELY TO SUPPLY SKILLED
MANPOWER FOR EMPLOYMENT BY THE UNITED STATES AND IT IS NOT ARGUED THAT
CARBIDES' 12,000 MEN HAVE SOMEHOW BECOME EMPLOYEES OF THE COMMISSION
RATHER THAN OF CARBIDE.  SEE POWELL V. UNITED STATES CARTRIDGE CO., 339
U.S. 497; MAHONEY V. UNITED STATES, 216 F. SUPP. 523 (D.C.E.D. TENN.). 
OF COURSE THERE ARE GOVERNMENTAL DIRECTIVES AND INSTRUCTIONS WHICH MUST
BE OBEYED, FOR THE COMMISSION DECIDES THE USES OF AND NEEDS FOR
FISSIONABLE MATERIAL; AND, OF COURSE, IN THE SENSITIVE AREA OF ATOMIC
ENERGY OPERATIONS THE COMMISSION'S CONTROLS ARE SUBJECT TO MODIFICATION
AND CHANGE IN THE LIGHT OF TECHNICAL AND OTHER DEVELOPMENTS.  (FN7)
BUT CARBIDE AND FERGUSON BROUGHT TO THE OAK RIDGE OPERATION BOTH SKILL
AND JUDGMENT THE UNITED STATES NEEDED AND DID NOT HAVE AND THERE IS
SUBSTANTIAL ROOM FOR THE EXERCISE OF BOTH, WITHIN AND WITHOUT THE BROAD
DIRECTIVES ISSUED BY THE COMMISSION.  SHOULD THE COMMISSION INTEND TO
BUILD OR OPERATE THE PLANT WITH ITS OWN SERVANTS AND EMPLOYEES, IT IS
WELL AWARE THAT IT MAY DO SO AND FAMILIAR WITH THE WAYS OF DOING IT.
IT CHOSE NOT TO DO SO HERE.  WE CANNOT CONCLUDE THAT CARBIDE AND
FERGUSON, BOTH COST-PLUS CONTRACTORS FOR PROFIT, HAVE BEEN SO
INCORPORATED INTO THE GOVERNMENT STRUCTURE AS TO BECOME
INSTRUMENTALITIES OF THE UNITED STATES AND THUS ENJOY GOVERNMENTAL
IMMUNITY. 

IT IS UNDOUBTEDLY TRUE, AS THE GOVERNMENT POINTS OUT, THAT SUBJECTION
OF GOVERNMENT PROPERTY USED BY AEC CONTRACTORS TO STATE USE TAXES WILL
RESULT IN A SUBSTANTIAL FUTURE TAX LIABILITY.  BUT THIS RESULT WAS
BROUGHT TO THE ATTENTION OF CONGRESS IN THE DEBATES ON THE REPEAL OF
SEC 9(B), (FN8) WHICH EXEMPTED THE ACTIVITIES OF AEC CONTRACTORS FROM
STATE TAXATION; INDEED THE AEC ARGUED THAT THE REPEAL WOULD
SUBSTANTIALLY INCREASE THE COST OF THE ATOMIC ENERGY PROGRAM BY
SUBJECTING AEC CONTRACTORS TO STATE "SALES AND USE TAXES" AND "BUSINESS
AND OCCUPATION" TAXES.  (FN9)  NONETHELESS, CONGRESS, WELL AWARE OF THE
PRINCIPLE THAT "CONSTITUTIONAL IMMUNITY DOES NOT EXTEND TO COST-PLUS
FIXED-FEE CONTRACTORS OF THE FEDERAL GOVERNMENT, BUT IS LIMITED TO
TAXES IMPOSED DIRECTLY ON THE UNITED STATES," S. REP. NO. 694, 83D
CONG., 1ST SESS., 2, REPEALED THE STATUTORY EXEMPTION FOR THE DECLARED
PURPOSE OF PLACING AEC CONTRACTORS IN THE SAME POSITION AS ALL OTHER
GOVERNMENTAL CONTRACTORS.  ACT OF AUGUST 13, 1953, C. 432, 67 STAT.
575.  (FN10)  THE PRINCIPLES LAID DOWN IN KING & BOOZER, DURRY, ESSO,
AND MUSKEGON, WE THINK, STRIKE A PROPER JUDICIAL ACCOMMODATION BETWEEN
THE INTERESTS OF THE STATES' POWER TO TAX AND THE CONCERNS OF THE
NATION, THEY ARE WORKABLE, AND WE ADHERE TO THEM.  IF THEY UNDULY
INTRUDE UPON THE BUSINESS OF THE NATION, IT IS FOR CONGRESS, IN THE
VALID EXERCISE OF ITS PROPER POWERS, NOT THIS COURT, TO MAKE THE
DESIRABLE ADJUSTMENT.  AFFIRMED. 

FN1  60 STAT. 765, C. 724, 42 U.S.C. (1952 ED.)  SEC 1809(B).  THE
ACTIVITIES, AND INCOME OF THE COMMISSION, ARE HEREBY EXPRESSLY EXEMPTED
FROM TAXATION IN ANY MANNER OR FORM BY ANY STATE, COUNTY, MUNICIPALITY,
OR ANY SUBDIVISION THEREOF." 

FN2  ACT OF AUGUST 13, 1953, 67 STAT. 575, C. 432. 

FN3  THE TENNESSEE RETAILERS SALES TAX ACT PROVIDES IN PERTINENT
PART, 12 TENN. CODE ANN. SEC 67-3004 (1963 CUM. SUPP.): 

"WHERE A CONTRACTOR OR SUBCONTRACTOR HEREINAFTER DEFINED AS A DEALER,
USES TANGIBLE PERSONAL PROPERTY IN THE PERFORMANCE OF HIS CONTRACT, OR
TO FULFILL CONTRACT OR SUBCONTRACT OBLIGATIONS, WHETHER THE TITLE TO
SUCH PROPERTY BE IN THE CONTRACTOR, SUBCONTRACTOR, CONTRACTEE,
SUBCONTRACTEE, OR ANY OTHER PERSON, OR WHETHER THE TITLE HOLDER OF SUCH
PROPERTY WOULD BE SUBJECT TO PAY THE SALES OR USE TAX, EXCEPT WHERE THE
TITLE HOLDER IS A CHURCH AND THE TANGIBLE PERSONAL PROPERTY IS FOR
CHURCH CONSTRUCTION, SUCH CONTRACTOR OR SUBCONTRACTOR SHALL PAY A TAX
AT THE RATE PRESCRIBED BY SEC 67-3003 MEASURED BY THE PURCHASE PRICE OR
FAIR MARKET VALUE OF SUCH PROPERTY, WHICHEVER IS GREATER, UNLESS SUCH
PROPERTY HAS BEEN PREVIOUSLY SUBJECTED TO A SALES OR USE TAX, AND THE
TAX DUE THEREON HAS BEEN PAID. 

     *       *         *         *         * 

"PROVIDED, FURTHER, THAT THE TAX IMPOSED BY THIS SECTION OR BY ANY
OTHER PROVISION OF THIS CHAPTER, AS AMENDED SHALL HAVE NO APPLICATION
WITH RESPECT TO THE USE BY, OR THE SALE TO, A CONTRACTOR OR
SUBCONTRACTOR OF ATOMIC WEAPON PARTS, SOURCE MATERIALS, SPECIAL NUCLEAR
MATERIALS AND BY-PRODUCT MATERIALS, ALL AS DEFINED BY THE ATOMIC ENERGY
ACT OF 1954, OR WITH RESPECT TO SUCH OTHER MATERIALS AS WOULD BE
EXCLUDED FROM TAXATION AS INDUSTRIAL MATERIALS UNDER PARAGRAPH (C)2 OF
SEC 67-3002 WHEN THE ITEMS REFERRED TO IN THIS PROVISO ARE SOLD OR
LEASED TO A CONTRACTOR OR SUBCONTRACTOR FOR USE IN, OR EXPERIMENTAL
WORK IN CONNECTION WITH, THE MANUFACTURING PROCESSES FOR OR ON BEHALF
OF THE ATOMIC ENERGY COMMISSION OR WHEN ANY OF SUCH ITEMS ARE USED BY A
CONTRACTOR OR SUBCONTRACTOR IN SUCH EXPERIMENTAL WORK OR MANUFACTURING
PROCESSES." 

FN4  THE FOLLOWING IS INCLUDED AMONG THE TERMS AND CONDITIONS
ATTACHED TO THE ORDER FORMS USED BY CARBIDE IN MAKING PURCHASES: 

"IT IS UNDERSTOOD AND AGREED THAT THIS ORDER IS ENTERED INTO BY THE
COMPANY FOR AND ON BEHALF OF THE GOVERNMENT; THAT TITLE TO ALL SUPPLIES
FURNISHED HEREUNDER BY THE SELLER SHALL PASS DIRECTLY FROM THE SELLER
TO THE GOVERNMENT, AS PURCHASES, AT THE POINT OF DELIVERY; THAT THE
COMPANY IS AUTHORIZED TO AND WILL MAKE PAYMENT HEREUNDER FROM
GOVERNMENT FUNDS ADVANCED AND AGREED TO BE ADVANCED TO IT BY THE
COMMISSION, AND NOT FROM ITS OWN ASSETS AND ADMINISTER THIS ORDER IN
OTHER RESPECTS FOR THE COMMISSION UNLESS OTHERWISE SPECIFICALLY
PROVIDED FOR HEREIN; THAT ADMINISTRATION OF THIS ORDER MAY BE
TRANSFERRED FROM THE COMPANY TO THE COMMISSION OR ITS DESIGNEE, AND IN
CASE OF SUCH TRANSFER AND NOTICE THEREOF TO THE SELLER THE COMPANY
SHALL HAVE NO FURTHER RESPONSIBILITIES HEREUNDER AND THAT NOTHING
HEREIN SHALL PRECLUDE LIABILITY OF THE GOVERNMENT FOR ANY PAYMENT
PROPERLY DUE HEREUNDER IF FOR ANY REASON SUCH PAYMENT IS NOT MADE BY
THE COMPANY FROM SUCH GOVERNMENT FUNDS." 

FN5  RELYING ON KERN-LIMERICK, INC., V. SCURLOCK, 347 U.S. 110, THE
TENNESSEE COURT DETERMINED THAT THE UNITED STATES ITSELF WAS THE ACTUAL
PURCHASES, AND THAT CARBIDE AND FERGUSON ACTED ONLY AS PURCHASING
AGENTS.  NO QUESTION IN RESPECT TO THE CORRECTNESS OF THIS
DETERMINATION IS RAISED ON THIS APPEAL AND THE VALIDITY OF THE
CONTRACTOR'S USE TAX, AS AGAINST A CONSTITUTIONAL CLAIM OF IMMUNITY, IN
NO WAY DEPENDS ON THE LEGALITY OF THE SALES TAX. 

FN6  THE GOVERNMENT'S RELIANCE ON UNITED STATES V. LIVINGSTON, 179 F.
SUPP. 9, AFF'D PER CURIAM, 364 U.S. 281, IS MISPLACED.  THERE A SOUTH
CAROLINA STATUTE IMPOSED A SALES TAX AND A TAX ON USE, DEFINED AS THE
EXERCISE OF ANY RIGHT OR POWER OVER PROPERTY "BY ANY TRANSACTION IN
WHICH POSSESSION IS GIVEN," ON CONTRACTORS "PURCHASING SUCH PROPERTY
...  AS AGENTS OF THE UNITED STATES OR ITS INSTRUMENTALITIES."  THE
GOVERNMENT SOUGHT TO ENJOIN COLLECTION OF THE TAX FROM THE DU PONT
COMPANY, WHICH PERFORMED MANAGEMENT SERVICES UNDER A CONTRACT, SIMILAR
IN MANY RESPECTS TO CARBIDE'S, WITH THE AEC.  THE DIFFERENCE, HOWEVER,
WAS THAT DU PONT WAS PAID COSTS PLUS A NOMINAL FEE OF ONE DOLLAR FOR
ITS ENTIRE UNDERTAKING.  PASSING OVER DOUBTS AS TO WHETHER THE "USE
TAX" WAS ON THE CONTRACTOR'S BENEFICIAL USE RATHER THAN ON THE PURCHASE
OR PROPERTY FOR THE GOVERNMENT, THE DISTRICT COURT HELD THE SALES TAX
INVALID IN RELIANCE ON KERN-LIMERICK, INC., V. SCURLOCK, 347 U.S. 110,
AND THE USE TAX INVALID PRINCIPALLY BECAUSE DU PONT ENTERED THE
CONTRACT SOLELY "OUT OF THE HIGH SENSE OF PUBLIC RESPONSIBILITY" AND
NOT FOR PROFIT.  THE PROPERTY WAS THEREFORE NOT USED IN DU PONT'S
COMMERCIAL OR BUSINESS ACTIVITIES.  THIS COURT AFFIRMED, 364 U.S. 281,
WITHOUT OPINION OR CITATION, ON THE BASIS OF THE JURISDICTIONAL PAPERS,
WHICH STRESSED THE FACT THAT THE RULING BELOW "WAS BASED UPON A CLOSE
ANALYSIS OF THE 'EXTRAORDINARY' CONTRACTUAL RELATIONSHIP BETWEEN DU
PONT AND AEC AT THIS PLANT  ... " AND THE FACTUAL DETERMINATION THAT DU
PONT RECEIVED NO BENEFITS FROM THE CONTRACT.  BECAUSE THE SERVICES
INVOLVED HEREIN ARE PERFORMED FOR A SUBSTANTIAL FEE IN THE COURSE OF
THE CONTRACTOR'S COMMERCIAL OPERATION THE LIVINGSTON DECISION IS NOT
CONTROLLING. 

FN7  THE GENERAL PURPOSES OF COMMISSION CONTROL AND DIRECTION ARE
STATED IN THE PREFACE TO THE CONTRACT: 

"WHEREAS, THE CORPORATION RECOGNIZES THAT ATTAINMENT OF THE
COMMISSION'S OVER-ALL OBJECTIVES AND DISCHARGE OF ITS RESPONSIBILITY
FOR ECONOMY AND EFFICIENCY IN THE CONDUCT OF THE ATOMIC ENERGY PROGRAM
REQUIRE THE COMMISSION'S GENERAL DIRECTION OF THE PROGRAM, SUPERVISION
OF GOVERNMENT-FINANCED ACTIVITIES OF ORGANIZATIONS MANAGING COMMISSION
FACILITIES AND RELATED FUNCTIONS SO AS TO ASSURE CONFORMITY WITH
APPLICABLE LAW AND POLICIES OF THE COMMISSION, AND FULL ACCESS TO
INFORMATION CONCERNING SUCH ACTIVITIES; AND THAT THE COMMISSION'S
PROGRAM OF ADMINISTRATION UNDER THE ATOMIC ENERGY ACT REQUIRES
INTEGRATION AND COORDINATION OF SUCH ACTIVITIES WHICH THE VARIOUS
ORGANIZATIONS MAY BE IN A POSITION TO PERFORM, FOR THE UTILIZATION OF
THEIR SERVICES AND OF INFORMATION, MATERIALS, FACILITIES, FUNDS AN
OTHER PROPERTY OF THE COMMISSION, IN THE MANNER MOST ADVANTAGEOUS TO
THE GOVERNMENT." 

FN8  SEE S. REP. NO. 694, 83D CONG., 1ST SESS., 1-3. 

FN9  ID., AT 4-6.  THE AEC STATED: 

"REDUCING THE COMMISSION'S EXEMPTION FROM STATE AND LOCAL TAXES TO
THE CONSTITUTIONAL IMMUNITY GENERALLY APPLICABLE WOULD RESULT IN AN
INCREASE OF SEVERAL MILLION DOLLARS ANNUALLY IN THE COSTS OF THE ATOMIC
ENERGY PROGRAM, IN THE FORM OF ADDED STATE AND LOCAL TAXES BORNE BY THE
FEDERAL GOVERNMENT.  IT IS APPARENT THAT THIS CONSIDERATION SHOULD NOT
BE REGARDED AS DECISIVE SINCE IT IS THE POLICY OF THE FEDERAL
GOVERNMENT TO FOREGO SUCH SAVINGS IN CONNECTION WITH OTHER FEDERAL
ACTIVITIES, AS IS EVIDENCED BY THE FACT THAT OTHER COMPONENTS OF THE
GOVERNMENT ARE EXEMPT FROM STATE AND LOCAL TAXATION ONLY TO THE EXTENT
OF THE CONSTITUTIONAL IMMUNITY AS DELIMITED IN THE KING AND BOOZER
DECISION.  WE FEEL, HOWEVER, THAT THERE ARE SPECIAL ASPECTS OF THE
IMPACT OF THE ATOMIC ENERGY PROGRAM UPON THE FISCAL POSITION OF THE
AFFECTED STATES AND LOCALITIES WHICH SHOULD BE TAKEN INTO ACCOUNT IN
DETERMINING WHETHER THE BROADER TAX EXEMPTION APPLICABLE TO AEC SHOULD
BE PRESERVED."  ID., AT 5. 

THE COMMISSION WENT ON TO NOTE THAT GENERALLY ITS INSTALLATIONS HAD A
FAVORABLE ECONOMIC IMPACT IN THE AREAS WHERE THEY WERE LOCATED AND
WHERE ITS CONTRACTORS PERFORMED, ALTHOUGH IT CONCEDED A FEW SPECIAL
PROBLEMS IN CERTAIN SMALL COMMUNITIES.  IT RECOMMENDED DIRECT PAYMENTS
BY THE GOVERNMENT IN LIEU OF PROPERTY TAXES ON PROPERTY ACQUIRED BY THE
COMMISSION AND THE ADJUSTMENT OF INTERNAL STATE-LOCAL ARRANGEMENTS TO
INSURED THAT THE DISTRIBUTION OF REVENUES WOULD TAKE INTO ACCOUNT THE
PROBLEMS OF THESE SPECIAL LOCALES.  IT THEN ADDED: 

"ELIMINATING THE EXEMPTION APPLICABLE TO SALES AND USE TAXES, TO
BUSINESS AND OCCUPATION TAXES, AND TO THE OTHER MINOR TAXES NOW
COMPREHENDED BY SECTION 9(B) MIGHT NOT MODIFY THE REVENUES OF THE FEW
LOCALITIES BURDENED BY COMMISSION ACTIVITIES  ...  ."  ID., AT 5-6. 

FN10  THE PURPOSE OF THE REPEAL IS WELL REVEALED IN THE FOLLOWING
EXCERPT FROM THE SENATE REPORT: 

"THE UNITED STATES SUPREME COURT IN CARSON V. ROANE-ANDERSON CO.,
(342 U.S. 232 (1952)) INTERPRETED THE LAST SENTENCE OF THE FOREGOING
SUBSECTION AS EXEMPTING TRANSACTIONS INVOLVING CERTAIN AEC CONTRACTORS
FROM THE TENNESSEE SALES AND USE TAXES.  THE COURT HELD THAT
'ACTIVITIES' OF THE COMMISSION, AS THAT TERM IS USED IN SECTION 9(B),
MAY BE PERFORMED BY INDEPENDENT CONTRACTORS OF THE COMMISSION, AS WELL
AS BY ITS AGENTS, AND THAT, AS A CONSEQUENCE, PRIVATE CONTRACTORS
PERFORMING THE GOVERNMENTAL FUNCTION UNDER THE ATOMIC ENERGY ACT ARE
WITHIN THE SCOPE OF THE SECTION 9(B) EXEMPTION FROM STATE AND LOCAL
TAXATION. 

"THIS DECISION HAS THE EFFECT OF AFFORDING THE ATOMIC ENERGY
COMMISSION AN EXEMPTION FROM STATE AND LOCAL TAXATION MUCH BROADER IN
SCOPE THAN THAT AVAILABLE TO THE OTHER DEPARTMENTS AND AGENCIES OF THE
FEDERAL GOVERNMENT, WHICH RELY ONLY UPON THE CONSTITUTIONAL IMMUNITY OF
THE FEDERAL GOVERNMENT FOR THEIR EXEMPTION FROM TAXATION.  THE SUPREME
COURT, IN ALABAMA V. KING AND BOOZER (314 U.S. 1), ESTABLISHED THE
PRINCIPLE THAT THE CONSTITUTIONAL IMMUNITY DOES NOT EXTEND TO COST-PLUS
FIXED-FEE CONTRACTORS OF THE FEDERAL GOVERNMENT, BUT IS LIMITED TO
TAXES IMPOSED DIRECTLY UPON THE UNITED STATES.  THUS, THE ATOMIC ENERGY
COMMISSION'S CONTRACTORS, BY REASON OF THE STATUTORY EXEMPTION AS
INTERPRETED BY THE SUPREME COURT, ARE ENTITLED TO AN EXEMPTION FROM
TAXATION WHICH IS NOT ENJOYED BY COMPARABLY SITUATED CONTRACTORS OF
OTHER AGENCIES AND DEPARTMENTS. 

"A NUMBER OF STATES HAVE EXPRESSED THE VIEW THAT SECTION 9(B), AS
INTERPRETED IN THE ROAN-ANDERSON DECISION CARVES OUT AN AREA OF
EXEMPTION FROM STATE AND LOCAL TAXATION WHICH DEPRIVES STATE AND LOCAL
GOVERNMENTAL UNITS OF SUBSTANTIAL REVENUE, PARTICULARLY IN THOSE AREAS
IN WHICH THE ATOMIC ENERGY COMMISSION CARRIES ON LARGE SCALE
ACTIVITIES."  S. REP. NO. 694, 83D CONG., 1ST SESS., 2. 

MR. JUSTICE HARLAN, CONCURRING. 

BUT FOR THE LEGISLATIVE HISTORY SET OUT IN THE COURT'S OPINION, ANTE,
PP. 49-50, NOTES 8-10, I WOULD HAVE THOUGHT THIS CASE AN APPROPRIATE
ONE FOR A THOROUGH RECONSIDERATION OF THE PRINCIPLES GOVERNING FEDERAL
IMMUNITY FROM STATE TAXATION, A SUBJECT WHICH HAS LONG TROUBLED THIS
COURT.  SEE MY OPINION IN THE "MICHIGAN CASES," 355 U.S., AT 505.  IN
VIEW OF THE LEGISLATIVE HISTORY, I CONCUR IN THE JUDGMENT AND OPINION
OF THE COURT. 
..END :
















MURPHY V. WATERFRONT COMMISSION OF NEW YORK HARBOR 378 U.S. 52 


NO. 138.  ARGUED MARCH 5, 1964.  - DECIDED JUNE 15, 1964.  - 39 N.J.
436, 189 A.2D 36, JUDGMENT VACATED IN PART, AFFIRMED IN PART, AND
REMANDED. 


ALTHOUGH PETITIONERS WERE GRANTED IMMUNITY FROM PROSECUTION UNDER
STATE LAWS, THEY REFUSED TO ANSWER QUESTIONS AT A HEARING CONDUCTED BY
THE RESPONDENT ON THE GROUND THAT THE ANSWERS MIGHT TEND TO INCRIMINATE
THEM UNDER FEDERAL LAW, TO WHICH THE GRANT OF IMMUNITY DID NOT EXTEND. 
THEY WERE HELD IN CIVIL AND CRIMINAL CONTEMPT OF COURT.  THE STATE
SUPREME COURT REVERSED THE CRIMINAL CONVICTION ON PROCEDURAL GROUNDS
BUT AFFIRMED THE CIVIL CONTEMPT JUDGMENT, HOLDING THAT A STATE MAY
CONSTITUTIONALLY COMPEL A WITNESS TO GIVE TESTIMONY WHICH MIGHT BE USED
AGAINST HIM IN A FEDERAL PROSECUTION.  HELD:  ONE JURISDICTION IN OUR
FEDERAL SYSTEM MAY NOT, ABSENT AN IMMUNITY PROVISION, COMPEL A WITNESS
TO GIVE TESTIMONY WHICH MIGHT INCRIMINATE HIM UNDER THE LAWS OF ANOTHER
JURISDICTION. 

(A)  A STATE WITNESS GRANTED IMMUNITY FROM PROSECUTION UNDER STATE
LAW MAY NOT BE COMPELLED TO GIVE TESTIMONY WHICH MAY INCRIMINATE HIM
UNDER FEDERAL LAW UNLESS SUCH TESTIMONY AND ITS FRUITS CANNOT BE USED
IN CONNECTION WITH A FEDERAL PROSECUTION AGAINST HIM; AND SUCH USE OF
COMPELLED TESTIMONY OR ITS FRUITS, AS DISTINGUISHED FROM INDEPENDENT
EVIDENCE, BY THE FEDERAL GOVERNMENT MUST BE PROSCRIBED.  FELDMAN V.
UNITED STATES, 322 U.S. 487, OVERRULED.  PP. 79-80. 

(B)  THE STATE MAY THUS OBTAIN INFORMATION REQUISITE FOR EFFECTIVE
LAW ENFORCEMENT AND THE WITNESS AND THE FEDERAL GOVERNMENT ARE LEFT IN
THE SAME POSITION AS IF THE WITNESS CLAIMED HIS PRIVILEGE IN THE
ABSENCE OF A STATE GRANT OF IMMUNITY.  P. 79. 

(C)  WITH THE REMOVAL OF THE FEAR OF FEDERAL PROSECUTION, THE
PETITIONERS MAY BE COMPELLED TO ANSWER.  PP. 79-80. 

MURPHY ET AL. V. WATERFRONT COMMISSION OF NEW YORK HARBOR. 

CERTIORARI TO THE SUPREME COURT OF NEW JERSEY. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

WE HAVE HELD TODAY THAT THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF
INCRIMINATION MUST BE DEEMED FULLY APPLICABLE TO THE STATES THROUGH THE
FOURTEENTH AMENDMENT.  MALLOY V. HOGAN, ANTE, P. 1.  THIS CASE PRESENTS
A RELATED ISSUE:  WHETHER ONE JURISDICTION WITHIN OUR FEDERAL STRUCTURE
MAY COMPEL A WITNESS, WHOM IT HAS IMMUNIZED FROM PROSECUTION UNDER ITS
LAWS, TO GIVE TESTIMONY WHICH MIGHT THEN BE USED TO CONVICT HIM OF A
CRIME AGAINST ANOTHER SUCH JURISDICTION.  (FN1) 

PETITIONERS WERE SUBPOENAED TO TESTIFY AT A HEARING CONDUCTED BY THE
WATERFRONT COMMISSION OF NEW YORK HARBOR CONCERNING A WORK STOPPAGE AT
THE HOBOKEN, NEW JERSEY, PIERS.  AFTER REFUSING TO RESPOND TO CERTAIN
QUESTIONS ABOUT THE STOPPAGE ON THE GROUND THAT THE ANSWERS MIGHT TEND
TO INCRIMINATE THEM, PETITIONERS WERE GRANTED IMMUNITY FROM PROSECUTION
UNDER THE LAWS OF NEW JERSEY AND NEW YORK.  (FN2)  NOTWITHSTANDING THIS
GRANT OF IMMUNITY, THEY STILL REFUSED TO RESPOND TO THE QUESTIONS ON
THE GROUND THAT THE ANSWERS MIGHT TEND TO INCRIMINATE THEM UNDER
FEDERAL LAW, TO WHICH THE GRANT OF IMMUNITY DID NOT PURPORT TO EXTEND. 
PETITIONERS WERE THEREUPON HELD IN CIVIL AND CRIMINAL CONTEMPT OF
COURT.  THE NEW JERSEY SUPREME COURT REVERSED THE CRIMINAL CONTEMPT
CONVICTION ON PROCEDURAL GROUNDS BUT, RELYING ON THIS COURT'S DECISIONS
IN KNAPP V. SCHWEITZER, 357 U.S. 371; FELDMAN V. UNITED STATES, 322
U.S. 487; AND UNITED STATES V. MURDOCK, 284 U.S. 141, AFFIRMED THE
CIVIL CONTEMPT JUDGMENTS ON THE MERITS.  THE COURT HELD THAT A STATE
MAY CONSTITUTIONALLY COMPEL A WITNESS TO GIVE TESTIMONY WHICH MIGHT BE
USED IN A FEDERAL PROSECUTION AGAINST HIM.  (FN3)  39 N.J. 436, 452
458, 189 A.2D 36, 46-49. 

SINCE A GRANT OF IMMUNITY IS VALID ONLY IF IT IS COEXTENSIVE WITH THE
SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION, COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, WE MUST NOW DECIDE THE FUNDAMENTAL
CONSTITUTIONAL QUESTION OF WHETHER, ABSENT AN IMMUNITY PROVISION, ONE
JURISDICTION IN OUR FEDERAL STRUCTURE MAY COMPEL A WITNESS TO GIVE
TESTIMONY WHICH MIGHT INCRIMINATE HIM UNDER THE LAWS OF ANOTHER
JURISDICTION.  THE ANSWER TO THIS QUESTION MUST DEPEND, OF COURSE, ON
WHETHER SUCH AN APPLICATION OF THE PRIVILEGE PROMOTES OR DEFEATS ITS
POLICIES AND PURPOSES. 

                       I. THE POLICIES OF THE PRIVILEGE. 

THE PRIVILEGE AGAINST SELF-INCRIMINATION "REGISTERS AN IMPORTANT
ADVANCE IN THE DEVELOPMENT OF OUR LIBERTY - 'ONE OF THE GREAT LANDMARKS
IN MAN'S STRUGGLE TO MAKE HIMSELF CIVILIZED.'"  ULLMANN V. UNITED
STATES, 350 U.S. 422, 426.  (FN4)  IT REFLECTS MANY OF OUR FUNDAMENTAL
VALUES AND MOST NOBLE ASPIRATIONS:  OUR UNWILLINGNESS TO SUBJECT THOSE
SUSPECTED OF CRIME TO THE CRUEL TRILEMMA OF SELF-ACCUSATION, PERJURY OR
CONTEMPT; OUR PREFERENCE FOR AN ACCUSATORIAL RATHER THAN AN
INQUISITORIAL SYSTEM OF CRIMINAL JUSTICE; OUR FEAR THAT SELF
INCRIMINATING STATEMENTS WILL BE ELICITED BY INHUMANE TREATMENT AND
ABUSES; OUR SENSE OF FAIR PLAY WHICH DICTATES "A FAIR STATE-INDIVIDUAL
BALANCE BY REQUIRING THE GOVERNMENT TO LEAVE THE INDIVIDUAL ALONE UNTIL
GOOD CAUSE IS SHOWN FOR DISTURBING HIM AND BY REQUIRING THE GOVERNMENT
IN ITS CONTEST WITH THE INDIVIDUAL TO SHOULDER THE ENTIRE LOAD," 8
WIGMORE, EVIDENCE (MCNAUGHTON REV., 1961), 317; OUR RESPECT FOR THE
INVIOLABILITY OF THE HUMAN PERSONALITY AND OF THE RIGHT OF EACH
INDIVIDUAL "TO A PRIVATE ENCLAVE WHERE HE MAY LEAD A PRIVATE LIFE,"
UNITED STATES V. GRUNEWALD, 233 F.2D 556, 581-582 (FRANK, J.,
DISSENTING), REV'D 353 U.S. 391; OUR DISTRUST OF SELF-DEPRECATORY
STATEMENTS; AND OUR REALIZATION THAT THE PRIVILEGE, WHILE SOMETIMES "A
SHELTER TO THE GUILTY," IS OFTEN "A PROTECTION TO THE INNOCENT."  QUINN
V. UNITED STATES, 349 U.S. 155, 162. 

MOST, IF NOT ALL, OF THESE POLICIES AND PURPOSES ARE DEFEATED WHEN A
WITNESS "CAN BE WHIPSAWED INTO INCRIMINATING HIMSELF UNDER BOTH STATE
AND FEDERAL LAW EVEN THOUGH" THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION IS APPLICABLE TO EACH.  CF.  KNAPP V. SCHWEITZER, 357
U.S. 371, 385 (DISSENTING OPINION OF MR. JUSTICE BLACK).  THIS HAS
BECOME ESPECIALLY TRUE IN OUR AGE OF "COOPERATIVE FEDERALISM," WHERE
THE FEDERAL AND STATE GOVERNMENTS ARE WAGING A UNITED FRONT AGAINST
MANY TYPES OF CRIMINAL ACTIVITY.  (FN5) 

RESPONDENT CONTENDS, HOWEVER, THAT WE SHOULD ADHERE TO THE
"ESTABLISHED RULE" THAT THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION DOES NOT PROTECT A WITNESS IN ONE JURISDICTION AGAINST
BEING COMPELLED TO GIVE TESTIMONY WHICH COULD BE USED TO CONVICT HIM IN
ANOTHER JURISDICTION.  THIS "RULE" HAS THREE DECISIONAL FACETS:  UNITED
STATES V. MURDOCK, 284 U.S. 141, HELD THAT THE FEDERAL GOVERNMENT COULD
COMPEL A WITNESS TO GIVE TESTIMONY WHICH MIGHT INCRIMINATE HIM UNDER
STATE LAW; KNAPP V. SCHWEITZER, 357 U.S. 371, HELD THAT A STATE COULD
COMPEL A WITNESS TO GIVE TESTIMONY WHICH MIGHT INCRIMINATE HIM UNDER
FEDERAL LAW; AND FELDMAN V. UNITED STATES, 322 U.S. 487, HELD THAT
TESTIMONY THUS COMPELLED BY A STATE COULD BE INTRODUCED INTO EVIDENCE
IN THE FEDERAL COURTS. 

OUR DECISION TODAY IN MALLOY V. HOGAN, SUPRA, NECESSITATES A
RECONSIDERATION OF THIS RULE.  (FN6) OUR REVIEW OF THE PERTINENT CASES
IN THIS COURT AND OF THEIR ENGLISH ANTECEDENTS REVEALS THAT MURDOCK DID
NOT ADEQUATELY CONSIDER THE RELEVANT AUTHORITIES AND HAS BEEN
SIGNIFICANTLY WEAKENED BY SUBSEQUENT DECISIONS OF THIS COURT, AND,
FURTHER, THAT THE LEGAL PREMISES UNDERLYING FELDMAN AND KNAPP HAVE
SINCE BEEN REJECTED. 

                   II.  THE EARLY ENGLISH AND AMERICAN CASES. 

         A. THE ENGLISH CASES BEFORE THE ADOPTION OF THE
CONSTITUTION. 

IN 1749 THE COURT OF EXCHEQUER DECIDED EAST INDIA CO. V. CAMPBELL, 1
VES.  SEN.  246, 27 ENG. REP. 1010.  THE DEFENDANT IN THAT CASE REFUSED
TO "DISCOVER" CERTAIN INFORMATION IN A PROCEEDING IN AN ENGLISH COURT
ON THE GROUND THAT IT MIGHT SUBJECT HIM TO PUNISHMENT IN THE COURTS OF
INDIA.  THE COURT UNANIMOUSLY HELD THAT THE PRIVILEGE AGAINST SELF
INCRIMINATION PROTECTED A WITNESS IN AN ENGLISH COURT FROM BEING
COMPELLED TO GIVE TESTIMONY WHICH COULD BE USED TO CONVICT HIM IN THE
COURTS OF ANOTHER JURISDICTION.  THE COURT STATED THE RULE TO BE: 

"THAT THIS COURT SHALL NOT OBLIGE ONE TO DISCOVER THAT, WHICH, IF HE
ANSWERS IN THE AFFIRMATIVE, WILL SUBJECT HIM TO THE PUNISHMENT OF A
CRIME  ...  AND THAT HE IS PUNISHABLE APPEARS FROM THE CASE OF OMICHUND
V. BARKER, (1 ATK.  21.)  AS A JURISDICTION IS ERECTED IN CALCUTTA FOR
CRIMINAL FACTS: WHERE HE MAY BE SENT TO GOVERNMENT AND TRIED, THOUGH
NOT PUNISHABLE HERE; LIKE THE CASE OF ONE WHO WAS CONCERNED IN A RAPE
IN IRELAND, AND SENT OVER THERE BY THE GOVERNMENT TO BE TRIED, ALTHOUGH
THE COURT OF B.R. HERE REFUSED TO DO IT  ...  FOR THE GOVERNMENT MAY
SEND PERSONS TO ANSWER FOR A CRIME WHEREVER COMMITTED, THAT HE MAY NOT
INVOLVE HIS COUNTRY; AND TO PREVENT REPRISALS."  1 VES.  SEN., AT 247,
27 ENG. REP., AT 1011. 

IN THE FOLLOWING YEAR, THIS RULE WAS APPLIED IN A CASE INVOLVING
SEPARATE SYSTEMS OF COURTS AND LAW LOCATED WITHIN THE SAME GEOGRAPHIC
AREA.  THE DEFENDANT IN BROWNSWORD V. EDWARDS, 2 VES.  SEN.  243, 28
ENG. REP. 157, REFUSED TO "DISCOVER, WHETHER SHE WAS LAWFULLY MARRIED"
TO A CERTAIN INDIVIDUAL, ON THE GROUND THAT IF SHE ADMITTED TO THE
MARRIAGE SHE WOULD BE CONFESSING TO AN ACT WHICH, ALTHOUGH LEGAL UNDER
THE COMMON LAW, WOULD RENDER HER "LIABLE TO PROSECUTION IN
ECCLESIASTICAL COURT."  THE LORD CHANCELLOR SAID: 

"THIS APPEARS A VERY PLAIN CASE, IN WHICH DEFENDANT MAY PROTECT
HERSELF FROM MAKING A DISCOVERY OF HER MARRIAGE; AND I AM AFRAID, IF
THE COURT SHOULD OVER-RULE SUCH A PLEA, IT WOULD BE SETTING UP THE OATH
EX OFFICIO; WHICH THEN THE PARLIAMENT IN THE TIME OF CHARLES I. WOULD
IN VAIN HAVE TAKEN AWAY, IF THE PARTY MIGHT COME INTO THIS COURT FOR
IT.  THE GENERAL RULE IS, THAT NO ONE IS BOUND TO ANSWER SO AS TO
SUBJECT HIMSELF TO PUNISHMENT, WHETHER THAT PUNISHMENT ARISES BY THE
ECCLESIASTICAL LAW OF THE LAND."  2 VES.  SEN., AT 244-245, 28 ENG.
REP., AT 158. 

                            B. THE SALINE BANK CASE. 

IT WAS AGAINST THIS BACKGROUND OF ENGLISH CASE LAW THAT THIS COURT IN
1828 DECIDED UNITED STATES V. SALINE BANK OF VIRGINIA, 1 PET. 100.  THE
GOVERNMENT, SEEKING TO RECOVER CERTAIN BANK DEPOSITS, BROUGHT SUIT IN
THE DISTRICT COURT AGAINST THE BANK AND A NUMBER OF ITS STOCKHOLDERS. 
THE DEFENDANTS RESISTED DISCOVERY OF "ANY MATTERS, WHEREBY THEY MAY
IMPEACH OR ACCUSE THEMSELVES OF ANY OFFENCE OR CRIME, OR BE LIABLE BY
THE LAWS OF THE COMMONWEALTH OF VIRGINIA, TO PENALTIES AND GRIEVOUS
FINES  ...  ."  ID., AT 102.  THE UNANIMOUS OPINION OF THE COURT,
DELIVERED BY CHIEF JUSTICE MARSHALL, READS AS FOLLOWS: 

"THIS IS A BILL IN EQUITY FOR A DISCOVERY AND RELIEF.  THE DEFENDANTS
SET UP A PLEA IN BAR, ALLEGING THAT THE DISCOVERY WOULD SUBJECT THEM TO
PENALTIES UNDER THE STATUTE OF VIRGINIA. 

"THE COURT BELOW DECIDED IN FAVOUR OF THE VALIDITY OF THE PLEA, AND
DISMISSED THE BILL. 

"IT IS APPARENT THAT IN EVERY STEP OF THE SUIT, THE FACTS REQUIRED TO
BE DISCOVERED IN SUPPORT OF THIS SUIT WOULD EXPOSE THE PARTIES TO
DANGER.  THE RULE CLEARLY IS, THAT A PARTY IS NOT BOUND TO MAKE ANY
DISCOVERY WHICH WOULD EXPOSE HIM TO PENALTIES, AND THIS CASE FALLS
WITHIN IT. 

"THE DECREE OF THE COURT BELOW IS THEREFORE AFFIRMED."  ID., AT 104. 

THIS CASE SQUARELY HOLDS THAT THE PRIVILEGE AGAINST SELF
INCRIMINATION PROTECTS A WITNESS IN A FEDERAL COURT FROM BEING
COMPELLED TO GIVE TESTIMONY WHICH COULD BE USED AGAINST HIM IN A STATE
COURT. 

                 C. SUBSEQUENT DEVELOPMENT OF THE ENGLISH RULE. 

IN 1851, THE ENGLISH COURT OF CHANCERY DECIDED KING OF THE TWO
SICILIES V. WILLCOX, 1 SIM.  (N.S.)  301, 61 ENG. REP. 116, A CASE
WHICH THIS COURT IN UNITED STATES V. MURDOCK, 284 U.S. 141, ERRONEOUSLY
CITED AS REPRESENTING THE SETTLED "ENGLISH RULE" THAT A WITNESS IS NOT
PROTECTED "AGAINST DISCLOSING OFFENSES IN VIOLATION OF THE LAWS OF
ANOTHER COUNTRY."  ID., AT 149.  DEFENDANTS IN THAT CASE RESISTED
DISCOVERY OF INFORMATION, WHICH, THEY ASSERTED, MIGHT SUBJECT THEM TO
PROSECUTION UNDER THE LAWS OF SICILY.  IN DENYING THEIR CLAIM, THE VICE
CHANCELLOR SAID: 

"THE RULE RELIED ON BY THE DEFENDANTS, IS ONE WHICH EXISTS MERELY BY
VIRTUE OF OUR OWN MUNICIPAL LAW, AND MUST, I THINK, HAVE REFERENCE,
EXCLUSIVELY, TO MATTERS PENAL BY THAT LAW:  TO MATTERS AS TO WHICH, IF
DISCLOSED, THE JUDGE WOULD BE ABLE TO SAY, AS MATTER OF LAW, WHETHER IT
COULD OR COULD NOT ENTAIL PENAL CONSEQUENCES."  1 SIM.  (N.S.), AT 329,
61 ENG. REP., AT 128. 

TWO REASONS WERE GIVEN IN SUPPORT OF THIS STATEMENT:  (1)  "THE
IMPOSSIBILITY OF KNOWING, AS MATTER OF LAW, TO WHAT CASES THE
OBJECTION, WHEN RESTING ON THE DANGER OF INCURRING PENAL CONSEQUENCES
IN A FOREIGN COUNTRY, MAY EXTEND  ...  ," ID., AT 331, 61 ENG. REP., AT
128; AND (2) THE FACT THAT "IN SUCH A CASE, IN ORDER TO MAKE THE
DISCLOSURE DANGEROUS TO THE PARTY WHO OBJECTS, IT IS ESSENTIAL THAT HE
SHOULD FIRST QUIT THE PROTECTION OF OUR LAWS, AND WILFULLY GO WITHIN
THE JURISDICTION OF THE LAWS HE HAS VIOLATED,"  (FN7)  IBID., 61 ENG.
REP., AT 128. 

WITHIN A FEW YEARS, THE PERTINENT PART OF KING OF THE TWO SICILIES
WAS SPECIFICALLY OVERRULED BY THE COURT OF CHANCERY APPEAL IN UNITED
STATES OF AMERICA V. MCRAE, L.R., 3 CH. APP. 79 (1867), A CASE NOT
MENTIONED BY THIS COURT IN UNITED STATES V. MURDOCK, SUPRA.  IN MCRAE,
THE UNITED STATES SUED IN AN ENGLISH COURT FOR AN ACCOUNTING AND
PAYMENT OF MONEYS ALLEGEDLY RECEIVED BY THE DEFENDANT AS AGENT FOR THE
CONFEDERATE STATES DURING THE CIVIL WAR.  THE DEFENDANT REFUSED TO
ANSWER QUESTIONS ON THE GROUND THAT TO DO SO WOULD SUBJECT HIM TO
PENALTIES UNDER THE LAWS OF THE UNITED STATES.  THE UNITED STATES
ARGUED THAT THE "PROTECTION FROM ANSWERING APPLIES ONLY WHERE A PERSON
MIGHT EXPOSE HIMSELF TO THE PERIL OF A PENAL PROCEEDING IN THIS COUNTRY
(ENGLAND), AND NOT TO THE CASE WHERE THE LIABILITY TO PENALTY OR
FORFEITURE IS INCURRED BY THE BREACH OF THE LAWS OF A FOREIGN COUNTRY
(THE UNITED STATES)."  L.R., 3 CH. APP., AT 83-84.  THE UNITED STATES
RELIED ON KING OF THE TWO SICILIES V. WILLCOX, SUPRA.  THE LORD
CHANCELLOR SUSTAINED THE CLAIM OF PRIVILEGE AND LIMITED KING OF THE TWO
SICILIES TO ITS FACTS.  HE SAID: 

"I QUITE AGREE IN THE GENERAL PRINCIPLES STATED BY LORD CRANWORTH,
AND IN THEIR APPLICATION TO THE PARTICULAR CASE BEFORE HIM.  ...  THE
DEFENDANTS THERE DID NOT FURNISH THE LEAST INFORMATION WHAT THE FOREIGN
LAW WAS UPON THE SUBJECT, THOUGH IT WAS NECESSARY FOR THE JUDGE TO KNOW
THIS WITH CERTAINTY BEFORE HE COULD SAY WHETHER THE ACTS DONE BY THE
PERSONS WHO OBJECTED TO ANSWER HAD RENDERED THEM AMENABLE TO PUNISHMENT
BY THAT LAW OR NOT.  ...  MOREOVER, IT WAS DOUBTFUL WHETHER THE
DEFENDANTS WOULD EVER BE WITHIN THE REACH OF A PROSECUTION, AND THEIR
BEING SO DEPENDED ON THEIR VOLUNTARY RETURN TO SICILY."  L.R., 3 CH.
APP., AT 84-87. 

IN REFUSING TO FOLLOW KING OF THE TWO SICILIES BEYOND ITS PARTICULAR
FACTS, THE COURT SAID: 

"BUT IN GIVING JUDGMENT LORD CRANWORTH WENT BEYOND THE PARTICULAR
CASE, AND EXPRESSED HIS OPINION THAT THE RULE UPON WHICH THE DEFENDANTS
RELIED TO PROTECT THEM FROM ANSWERING WAS ONE WHICH EXISTED MERELY BY
VIRTUE OF OUR OWN MUNICIPAL LAW, AND WHICH MUST HAVE REFERENCE
EXCLUSIVELY TO MATTERS PENAL BY THAT LAW.  IT WAS UNNECESSARY TO LAY
DOWN SO BROAD A PROPOSITION TO SUPPORT THE JUDGMENT WHICH HE PRONOUNCED
...  .  WHAT WOULD HAVE BEEN LORD CRANWORTH'S OPINION UPON THE PRESENT
STATE OF CIRCUMSTANCES IT IS IMPOSSIBLE FOR ME TO CONJECTURE; BUT IT IS
VERY DIFFERENT FROM THAT WHICH WAS BEFORE HIS MIND IN THAT CASE, AND I
CANNOT FEEL THAT THERE IS ANY JUDGMENT OF HIS WHICH OUGHT TO INFLUENCE
MY DECISION UPON THE PRESENT OCCASION."  ID., AT 85.    THE COURT THEN
CONCLUDED THAT UNDER THE CIRCUMSTANCES IT COULD NOT "DISTINGUISH THE
CASE IN PRINCIPLE FROM ONE WHERE A WITNESS IS PROTECTED FROM ANSWERING
ANY QUESTION WHICH HAS A TENDENCY TO EXPOSE HIM TO FORFEITURE FOR A
BREACH OF OUR OWN MUNICIPAL LAW."  ID., AT 87.  THIS DECISION, NOT KING
OF THE TWO SICILIES, REPRESENTS THE SETTLED "ENGLISH RULE" REGARDING
SELF-INCRIMINATION UNDER FOREIGN LAW.  SEE HERIZ V. RIERA, 11 SIM. 
318, 59 ENG. REP. 896. 

                      III.  THE RECENT SUPREME COURT CASES. 

IN 1896, IN BROWN V. WALKER, 161 U.S. 591, THIS COURT, FOR THE FIRST
TIME, SUSTAINED THE CONSTITUTIONALITY OF A FEDERAL IMMUNITY STATUTE. 
APPELLANT IN THAT CASE ARGUED, INTER ALIA, THAT: 

"WHILE THE WITNESS IS GRANTED IMMUNITY FROM PROSECUTION BY THE
FEDERAL GOVERNMENT, HE DOES NOT OBTAIN SUCH IMMUNITY AGAINST
PROSECUTION IN THE STATE COURTS."  ID., AT 606. 

THE COURT CONSTRUED THE APPLICABLE STATUTE, HOWEVER, TO PREVENT
PROSECUTIONS EITHER IN STATE OR FEDERAL COURTS.  (FN8) 

SHORTLY THEREAFTER, THE COURT DECIDED JACK V. KANSAS, 199 U.S. 372,
IN WHICH THE STATE COURT HAD HELD PLAINTIFF IN ERROR IN CONTEMPT FOR
HIS REFUSAL TO ANSWER CERTAIN QUESTIONS ON THE GROUND THAT THEY WOULD
SUBJECT HIM TO POSSIBLE INCRIMINATION UNDER FEDERAL LAW.  IN REJECTING
PLAINTIFF'S CLAIM, THIS COURT SAID THAT THE FIFTH AMENDMENT "HAS NO
APPLICATION IN A PROCEEDING LIKE THIS," AND HENCE "THE SOLE QUESTION IN
THE CASE" IS WHETHER "THE DENIAL OF HIS CLAIM OF RIGHT TO REFUSE TO
ANSWER THE QUESTIONS WAS IN VIOLATION OF THE FOURTEENTH AMENDMENT TO
THE CONSTITUTION  ...  ."  ID., AT 380.  THE COURT STATED THAT IT DID
"NOT BELIEVE THAT IN SUCH CASE THERE IS ANY REAL DANGER OF A FEDERAL
PROSECUTION, OR THAT SUCH EVIDENCE WOULD BE AVAILED OF BY THE
GOVERNMENT FOR SUCH PURPOSE."  ID., AT 382.  THEN, WITHOUT CITING ANY
AUTHORITY, THE COURT ADDED THE FOLLOWING CRYPTIC DICTUM:  "WE THINK THE
LEGAL IMMUNITY IS IN REGARD TO A PROSECUTION IN THE SAME JURISDICTION,
AND WHEN THAT IS FULLY GIVEN IT IS ENOUGH."  IBID. 

THAT THIS DICTUM RELATED SOLELY TO THE "LEGAL IMMUNITY" UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT IS APPARENT FROM THE FACT
THAT IT WAS REGARDED, FIVE WEEKS LATER IN BALLMANN V. FAGIN, 200 U.S.
186, AS WHOLLY INAPPLICABLE TO CASES DECIDED UNDER THE SELF
INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT.  (FN9)  BALLMANN HAD BEEN
HELD IN CONTEMPT OF A FEDERAL COURT FOR REFUSING TO ANSWER CERTAIN
QUESTIONS BEFORE A FEDERAL GRAND JURY.  HE CLAIMED THAT HIS ANSWERS
MIGHT EXPOSE HIM "TO THE CRIMINAL LAW OF THE STATE IN WHICH THE GRAND
JURY WAS SITTING."  ID., AT 195.  JUSTICE HOLMES, WRITING FOR A COURT
WHICH INCLUDED THE AUTHOR OF JACK V. KANSAS, SUPRA, SQUARELY HELD THAT
"ACCORDING TO UNITED STATES V. SALINE BANK, 1 PETERS, 100, HE WAS
EXONERATED FROM DISCLOSURES WHICH WOULD HAVE EXPOSED HIM TO THE
PENALTIES OF THE STATE LAW.  SEE JACK V. KANSAS, 199 U.S. 372, DECIDED
THIS TERM."  200 U.S., AT 195. 

A FEW MONTHS AFTER BALLMAN, THE COURT DECIDED HALE V. HENKEL, 201
U.S. 43.  APPELLANT HAD BEEN HELD TO CONTEMPT OF A FEDERAL COURT FOR
REFUSING TO ANSWER CERTAIN QUESTIONS AND PRODUCE CERTAIN DOCUMENTS. 
HIS REFUSAL WAS BASED IN PART ON THE ARGUMENT THAT THE FEDERAL IMMUNITY
STATUTE DID NOT PROTECT HIM FROM STATE PROSECUTION.  THE GOVERNMENT
ARGUED, ON THE AUTHORITY OF BROWN V. WALKER, SUPRA, THAT THE STATUTE
DID PROTECT HIM FROM STATE PROSECUTION.  THE GOVERNMENT ASSUMED THAT IT
WAS SETTLED THAT A VALID FEDERAL IMMUNITY STATUTE WOULD HAVE TO PROTECT
AGAINST STATE PROSECUTION.  IT NEVER SUGGESTED, THEREFORE, THAT
IMMUNITY FROM FEDERAL PROSECUTION WAS ALL THAT WAS REQUIRED.  APPELLANT
SIMILARLY ASSUMED, WITHOUT ARGUMENT, THAT THE CONSTITUTION REQUIRED
IMMUNITY FROM STATE CONVICTION AS A CONDITION OF REQUIRING
INCRIMINATING TESTIMONY IN A FEDERAL COURT.  THUS THE CRITICAL
CONSTITUTIONAL ISSUE - WHETHER THE FIFTH AMENDMENT PROTECTS A FEDERAL
WITNESS FROM INCRIMINATING HIMSELF UNDER STATE LAW - WAS NOT BRIEFED OR
ARGUED IN HALE V. HENKEL.  NOR WAS ITS RESOLUTION NECESSARY TO THE
DECISION OF THE CASE, FOR THE COURT COULD HAVE DECIDED THE RELEVANT
POINT ON THE AUTHORITY OF BROWN V. WALKER, SUPRA, WHICH HAD HELD THAT A
SIMILAR FEDERAL IMMUNITY STATUTE PROTECTED AGAINST STATE PROSECUTION. 
NEVERTHELESS, THE COURT WENT ON TO SAY: 

"THE QUESTION HAS BEEN FULLY CONSIDERED IN ENGLAND, AND THE
CONCLUSION REACHED BY THE COURTS OF THAT COUNTRY THAT THE ONLY DANGER
TO BE CONSIDERED IS ONE ARISING WITHIN THE SAME JURISDICTION AND UNDER
THE SAME SOVEREIGNTY.  QUEEN V. BOYES, 1 B.&S. 311; KING OF THE TWO
SICILIES V. WILLCOX, 7 STATE TRIALS (N.S.), 1049, 1068; STATE V. MARCH,
1 JONES (N. CAR.), 526; STATE V. THOMAS, 98 N. CAR.  599. 

"THE CASE OF UNITED STATES V. SALINE BANK, 1 PET. 100, IS NOT IN
CONFLICT WITH THIS.  THAT WAS A BILL FOR DISCOVERY, FILED BY THE UNITED
STATES AGAINST THE CASHIER OF THE SALINE BANK, IN THE DISTRICT COURT OF
THE VIRGINIA DISTRICT, WHO PLEADED THAT THE EMISSION OF CERTAIN
UNLAWFUL BILLS TOOK PLACE, WITHIN THE STATE OF VIRGINIA, BY THE LAW
WHEREOF PENALTIES WERE INFLICTED FOR SUCH EMISSIONS.  IT WAS HELD THAT
DEFENDANTS WERE NOT BOUND TO ANSWER AND SUBJECT THEMSELVES TO THOSE
PENALTIES.  IT IS SUFFICIENT TO SAY THAT THE PROSECUTION WAS UNDER A
STATE LAW WHICH IMPOSED THE PENALTY, AND THAT THE FEDERAL COURT WAS
SIMPLY ADMINISTERING THE STATE LAW, AND NO QUESTION AROSE AS TO A
PROSECUTION UNDER ANOTHER JURISDICTION."  201 U.S., AT 69. 

THIS DICTUM, SUBSEQUENTLY RELIED ON IN UNITED STATES V. MURDOCK,
SUPRA, WAS NOT WELL FOUNDED. 

THE SETTLED ENGLISH RULE WAS EXACTLY THE OPPOSITE OF THAT STATED BY
THE COURT.  THE MOST RECENT AUTHORITATIVE ANNOUNCEMENT OF THE ENGLISH
RULE HAD BEEN THAT MADE IN 1867 IN UNITED STATES OF AMERICA V. MCRAE,
SUPRA, WHERE THE COURT OF CHANCERY APPEALS HELD THAT WHERE THERE IS A
REAL DANGER OF PROSECUTION IN A FOREIGN COUNTRY, THE CASE COULD NOT BE
DISTINGUISHED "IN PRINCIPLE FROM ONE WHERE A WITNESS IS PROTECTED FROM
ANSWERING ANY QUESTION WHICH HAS A TENDENCY TO EXPOSE HIM TO FORFEITURE
FOR A BREACH OF OUR OWN MUNICIPAL LAW."  SUPRA, AT 63.  THE DICTUM FROM
KING OF THE TWO SICILIES CITED BY THE COURT IN HALE V. HENKEL HAD BEEN
REJECTED IN MCRAE.  MOREOVER, THE TWO FACTORS RELIED ON BY ENGLISH
COURT IN KING OF THE TWO SICILIES WERE WHOLLY INAPPLICABLE TO FEDERAL
STATE PROBLEMS IN THIS COUNTRY.  THE FIRST - "THE IMPOSSIBILITY OF
KNOWING, AS MATTER OF LAW, TO WHAT CASES THE DANGER OF INCRIMINATION
MAY EXTEND  ...  ," SUPRA, AT 60 - HAS NO FORCE IN OUR COUNTRY WHERE
THE FEDERAL AND STATE COURTS TAKE JUDICIAL NOTICE OF EACH OTHER'S LAW. 
THE SECOND - THAT "IN ORDER TO MAKE THE DISCLOSURE DANGEROUS TO THE
PARTY WHO OBJECTS, IT IS ESSENTIAL THAT HE SHOULD FIRST QUIT THE
PROTECTION OF OUR LAWS, AND WILFULLY GO WITHIN THE JURISDICTION OF THE
LAWS HE HAS VIOLATED," SUPRA, AT 60-61 - IS EQUALLY INAPPLICABLE IN OUR
COUNTRY WHERE THE WITNESS IS GENERALLY WITHIN "THE JURISDICTION" OF THE
STATE UNDER WHOSE LAW HE CLAIMS DANGER OF INCRIMINATION, AND WHERE, IF
HE IS NOT, THE STATE MAY DEMAND HIS EXTRADITION.  THE SECOND CASE
RELIED ON IN HALE V. HENKEL, SUPRA - THE QUEEN V. BOYES, SUPRA - WAS
IRRELEVANT TO THE ISSUE THERE PRESENTED.  THE QUEEN V. BOYES DID NOT
INVOLVE DIFFERENT JURISDICTIONS OR SYSTEMS OF LAW.  IT MERELY HELD THAT
THE DANGER OF PROSECUTION "MUST BE REAL AND APPRECIABLE  ...  NOT A
DANGER OF AN IMAGINARY AND UNSUBSTANTIAL CHARACTER  ...  ."  IT IN NO
WAY SUGGESTED THAT THE DANGER OF PROSECUTION UNDER FOREIGN LAW COULD BE
IGNORED IF IT WAS "REAL AND APPRECIABLE."  (FN10) 

THUS, THE AUTHORITIES RELIED ON BY THE COURT IN HALE V. HENKEL
PROVIDED NO SUPPORT FOR THE CONCLUSION THAT UNDER THE FIFTH AMENDMENT
"THE ONLY DANGER TO BE CONSIDERED IS ONE ARISING WITHIN THE SAME
JURISDICTION AND UNDER THE SAME SOVEREIGNTY."  NOR WAS ITS ATTEMPT TO
DISTINGUISH CHIEF JUSTICE MARSHALL'S OPINION IN UNITED STATES V. SALINE
BANK OF VIRGINIA, SUPRA, MORE SUCCESSFUL.  THE COURT'S READING OF
SALINE BANK SUGGESTS THAT THE STATE, RATHER THAN THE FEDERAL, PRIVILEGE
AGAINST SELF-INCRIMINATION APPLIES TO FEDERAL COURTS WHEN THEY ARE
ADMINISTERING STATE SUBSTANTIVE LAW.  THE MOST REASONABLE READING OF
THAT CASE, HOWEVER, AND THE ONE WHICH WAS PLAINLY ACCEPTED BY JUSTICE
HOLMES IN BALLMANN V. FAGIN, SUPRA, IS THAT THE PRIVILEGE AGAINST SELF
INCRIMINATION PRECLUDES A FEDERAL COURT FROM REQUIRING AN ANSWER TO A
QUESTION WHICH MIGHT INCRIMINATE THE WITNESS UNDER STATE LAW.  (FN11)
THIS READING IS ESPECIALLY COMPELLING IN LIGHT OF THE ENGLISH
ANTECEDENTS OF THE SALINE BANK CASE.  SEE EAST INDIA CO. V. CAMPBELL,
DISCUSSED, SUPRA, AT 58; AND BROWNSWORD V. EDWARDS, DISCUSSED, SUPRA,
AT 58-59. 

THE WEAKNESS OF THE HALE V. HENKEL DICTUM WAS IMMEDIATELY RECOGNIZED
BOTH BY LOWER FEDERAL COURTS (FN12)  AND BY THIS COURT ITSELF.  IN
VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273 U.S. 103, DECIDED IN 1927
BY A UNANIMOUS COURT, APPELLANT REFUSED TO ANSWER CERTAIN QUESTIONS PUT
TO HIM IN A DEPORTATION PROCEEDING ON THE GROUND THAT THEY "MIGHT HAVE
TENDED TO INCRIMINATE HIM UNDER THE ILLINOIS SYNDICALISM LAW  ...  ." 
ID., AT 112.  INSTEAD OF DECIDING THE ISSUE ON THE AUTHORITY OF THE
HALE V. HENKEL DICTUM, THE COURT HELD THAT THE PRIVILEGE HAD BEEN
WAIVED.  THE COURT THEN SAID: 

"THIS CONCLUSION MAKES IT UNNECESSARY FOR US TO CONSIDER THE EXTENT
TO WHICH THE FIFTH AMENDMENT GUARANTEES IMMUNITY FROM SELF
INCRIMINATION UNDER STATE STATUTES OR WHETHER THIS CASE IS TO BE
CONTROLLED BY HALE V. HENKEL, 201 U.S. 43; BROWN V. WALKER, 161 U.S.
591, 608; COMPARE UNITED STATES V. SALINE BANK, 1 PET. 100; BALLMANN V.
FAGIN, 200 U.S. 186, 195."  273 U.S., AT 113. 

IN A SUBSEQUENT CASE, DECIDED IN 1933, THIS COURT SAID THAT THE
QUESTION - WHETHER "ONE UNDER EXAMINATION IN A FEDERAL TRIBUNAL COULD
NOT REFUSE TO ANSWER ON ACCOUNT OF PROBABLE INCRIMINATION UNDER STATE
LAW" - WAS "SPECIFICALLY RESERVED IN VAJTAUER V. COMM'R OF
IMMIGRATION," AND WAS NOT "DEFINITELY SETTLED" UNTIL 1931.  UNITED
STATES V. MURDOCK, 290 U.S. 389, 396. 

IN 1931, THE COURT DECIDED UNITED STATES V. MURDOCK, 284 U.S. 141,
THE CASE PRINCIPALLY RELIED ON BY RESPONDENT HERE.  APPELLEE HAD BEEN
INDICTED FOR FAILING TO SUPPLY CERTAIN INFORMATION TO FEDERAL REVENUE
AGENTS.  HE CLAIMED THAT HIS REFUSAL HAD BEEN JUSTIFIED BECAUSE IT
RESTED ON THE FEAR OF FEDERAL AND STATE INCRIMINATION.  THE GOVERNMENT
ARGUED THAT THE RECORD SUPPORTED ONLY A CLAIM OF STATE, NOT FEDERAL,
INCRIMINATION, AND THAT THE FIFTH AMENDMENT DOES NOT PROTECT AGAINST A
CLAIM OF STATE INCRIMINATION.  APPELLEE DID NOT RESPOND TO THE LATTER
ARGUMENT, BUT INSTEAD RESTED HIS ENTIRE CASE ON THE CLAIM THAT HIS
REFUSALS HAD IN EACH INSTANCE BEEN BASED ON FEDERAL AS WELL AS STATE
INCRIMINATION.  IN SUPPORT OF ITS CONSTITUTIONAL ARGUMENT, THE
GOVERNMENT CITED THE SAME TWO ENGLISH CASES ERRONEOUSLY RELIED ON IN
THE HALE V. HENKEL DICTUM - KING OF THE TWO SICILIES V. WILLCOX, SUPRA,
WHICH HAD BEEN OVERRULED, AND THE QUEEN V. BOYES, SUPRA, WHICH WAS
WHOLLY INAPPOSITE.  AN EXAMINATION OF THE BRIEFS AND SUMMARY OF
ARGUMENT INDICATES THAT NEITHER THE GOVERNMENT NOR THE APPELLEE
INFORMED THE COURT THAT KING OF THE TWO SICILIES HAD BEEN OVERRULED BY
UNITED STATES OF AMERICA V. MCRAE, SUPRA.  (FN13) 

THIS COURT DECIDED THAT APPELLEE'S REFUSAL TO ANSWER RESTED SOLELY ON
A FEAR OF STATE PROSECUTION, AND THEN CONCLUDED, IN ONE BRIEF
PARAGRAPH, THAT SUCH A FEAR DID NOT JUSTIFY A REFUSAL TO ANSWER
QUESTIONS PUT BY FEDERAL OFFICERS. 

THE COURT GAVE THREE REASONS FOR THIS CONCLUSION.  THE FIRST WAS
THAT: 

"INVESTIGATIONS FOR FEDERAL PURPOSES MAY NOT BE PREVENTED BY MATTERS
DEPENDING UPON STATE LAW.  CONSTITUTION, ART. VI, SEC 2,"  284 U.S., AT
149. 

THIS ARGUMENT, HOWEVER, BEGS THE CRITICAL QUESTION.  NO ONE WOULD
SUGGEST THAT STATE LAW COULD PREVENT A PROPER FEDERAL INVESTIGATION;
THE COURT HAD ALREADY HELD THAT THE FEDERAL GOVERNMENT COULD, UNDER THE
SUPREMACY CLAUSE, GRANT IMMUNITY FROM STATE PROSECUTION, AND THAT,
ACCORDINGLY, STATE LAW COULD NOT PREVENT A PROPER FEDERAL
INVESTIGATION.  THE CRITICAL ISSUE WAS WHETHER THE FEDERAL GOVERNMENT,
WITHOUT GRANTING IMMUNITY FROM STATE PROSECUTION, COULD COMPEL
TESTIMONY WHICH WOULD INCRIMINATE UNDER STATE LAW.  THE COURT'S FIRST
"REASON" WAS NOT RESPONSIVE TO THIS ISSUE. 

THE SECOND REASON GIVEN BY THE COURT WAS THAT: 

"THE ENGLISH RULE OF EVIDENCE AGAINST COMPULSORY SELF-INCRIMINATION,
ON WHICH HISTORICALLY THAT CONTAINED IN THE FIFTH AMENDMENT RESTS, DOES
NOT PROTECT WITNESSES AGAINST DISCLOSING OFFENSES IN VIOLATION OF THE
LAWS OF ANOTHER COUNTRY.  KING OF THE TWO SICILIES V. WILLCOX, 7 STATE
TRIALS (N.S.)  1050, 1068.  QUEEN V. BOYES, 1 B.&S. 311, 330," 284
U.S., AT 149. 

AS HAS BEEN DEMONSTRATED, THE CASES CITED WERE IN ONE INSTANCE
OVERRULED AND IN THE OTHER INAPPOSITE, AND THE ENGLISH RULE WAS THE
OPPOSITE FROM THAT STATED IN THIS COURT'S OPINION:  THE RULE DID
"PROTECT WITNESSES AGAINST DISCLOSING OFFENSES IN VIOLATION OF THE LAWS
OF ANOTHER COUNTRY."  UNITED STATES OF AMERICA V. MCRAE, SUPRA. 

THE THIRD REASON GIVEN BY THE COURT IN MURDOCK WAS THAT: 

"THIS COURT HAS HELD THAT IMMUNITY AGAINST STATE PROSECUTION IS NOT
ESSENTIAL TO THE VALIDITY OF FEDERAL STATUTES DECLARING THAT A WITNESS
SHALL NOT BE EXCUSED FROM GIVING EVIDENCE ON THE GROUND THAT IT WILL
INCRIMINATE HIM, AND ALSO THAT THE LACK OF STATE POWER TO GIVE
WITNESSES PROTECTION AGAINST FEDERAL PROSECUTION DOES NOT DEFEAT A
STATE IMMUNITY STATUTE.  THE PRINCIPLE ESTABLISHED IS THAT FULL AND
COMPLETE IMMUNITY AGAINST PROSECUTION BY THE GOVERNMENT COMPELLING THE
WITNESS TO ANSWER IS EQUIVALENT TO THE PROTECTION FURNISHED BY THE RULE
AGAINST COMPULSORY SELF-INCRIMINATION.  COUNSELMAN V. HITCHCOCK, 142
U.S. 547.  BROWN V. WALKER, 161 U.S. 591, 606.  JACK V. KANSAS, 199
U.S.  372, 381.  HALE V. HENKEL, 201 U.S. 43, 68."  284 U.S., AT 149. 
THIS ARGUMENT - THAT THE RULE IN QUESTION HAD ALREADY BEEN
"ESTABLISHED" BY THE PAST DECISIONS OF THE COURT - IS NOT ACCURATE. 
THE FIRST CASE CITED BY THE COURT - COUNSELMAN V. HITCHCOCK - SAID
NOTHING ABOUT THE PROBLEM OF INCRIMINATION UNDER THE LAW OF ANOTHER
SOVEREIGN.  THE SECOND CASE - BROWN V. WALKER - MERELY HELD THAT THE
FEDERAL IMMUNITY STATUTE THERE INVOLVED DID PROTECT AGAINST STATE
PROSECUTION.  THE THIRD CASE - JACK V. KANSAS - HELD THAT THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT PREVENT A STATE FROM
COMPELLING AN ANSWER TO A QUESTION WHICH PRESENTED NO "REAL DANGER OF A
FEDERAL PROSECUTION."  199 U.S., AT 382.  THE FINAL CASE - HALE V.
HENKEL - CONTAINED DICTUM IN SUPPORT OF THE RULE ANNOUNCED WHICH WAS
WITHOUT REAL AUTHORITY AND WHICH HAD BEEN QUESTIONED BY A UNANIMOUS
COURT IN VAJTAUER V. COMMISSIONER OF IMMIGRATION, SUPRA.  MOREOVER, THE
COURT SUBSEQUENTLY SAID, IN NO UNCERTAIN TERMS, THAT THE RULE ANNOUNCED
IN MURDOCK HAD NOT BEEN PREVIOUSLY "ESTABLISHED" BY THE DECISIONS OF
THE COURT.  WHEN MURDOCK APPEALED HIS SUBSEQUENT CONVICTION ON THE
GROUND, INTER ALIA, THAT AN INSTRUCTION ON WILLFULNESS SHOULD HAVE BEEN
GIVEN, THE COURT AFFIRMED THE COURT OF APPEALS' REVERSAL OF HIS
CONVICTION AND SAID THAT: 

"NOT UNTIL THIS COURT PRONOUNCED JUDGMENT IN UNITED STATES V. MURDOCK,
284 U.S. 141, HAD IT BEEN DEFINITELY SETTLED THAT ONE UNDER EXAMINATION
IN A FEDERAL TRIBUNAL COULD NOT REFUSE TO ANSWER ON ACCOUNT OF PROBABLE
INCRIMINATION UNDER STATE LAW.  THE QUESTION WAS INVOLVED, BUT NOT
DECIDED, IN BALLMANN V. FAGIN, 200 U.S. 186, 195, AND SPECIFICALLY
RESERVED IN VAJTAUER V. COMM'R OF IMMIGRATION, 273 U.S. 103, 113." 
UNITED STATES V. MURDOCK, 290 U.S. 389, 396. 

THUS, NEITHER THE REASONING NOR THE AUTHORITY RELIED ON BY THE COURT
IN UNITED STATES V. MURDOCK, 284 U.S. 141, SUPPORTS ITS CONCLUSION THAT
THE FIFTH AMENDMENT PERMITS THE FEDERAL GOVERNMENT TO COMPEL ANSWERS TO
QUESTIONS WHICH MIGHT INCRIMINATE UNDER STATE LAW. 

IN 1944 THE COURT, IN FELDMAN V. UNITED STATES, 322 U.S. 487, WAS
CONFRONTED WITH THE SITUATION WHERE EVIDENCE COMPELLED BY A STATE UNDER
A GRANT OF STATE IMMUNITY WAS "AVAILED OF BY THE FEDERAL GOVERNMENT"
AND INTRODUCED IN A FEDERAL PROSECUTION.  JACK V. KANSAS, 199 U.S., AT
382.  THIS WAS THE SITUATION WHICH THE COURT HAD EARLIER SAID IT DID
"NOT BELIEVE" WOULD OCCUR.  IBID. NEVERTHELESS, THE COURT, IN A 4-TO-3
DECISION, UPHELD THIS PRACTICE, BUT DID SO ON THE AUTHORITY OF A
PRINCIPLE WHICH IS NO LONGER ACCEPTED BY THIS COURT.  THE FELDMAN
REASONING WAS ESSENTIALLY AS FOLLOWS: 

"THE FOURTH AND FIFTH AMENDMENTS, INTERTWINED AS THEY ARE, EXPRESS
SUPPLEMENTING PHASES OF THE SAME CONSTITUTIONAL PURPOSE ...  ."  322
U.S. 489-490. 

"ONE OF THE SETTLED PRINCIPLES OF OUR CONSTITUTION HAS BEEN THAT
THESE AMENDMENTS PROTECT ONLY AGAINST INVASION OF CIVIL LIBERTIES BY
THE FEDERAL GOVERNMENT WHOSE CONDUCT THEY ALONE LIMIT."  ID., AT 490. 

"AND SO, WHILE EVIDENCE SECURED THROUGH UNREASONABLE SEARCH AND
SEIZURE BY FEDERAL OFFICIALS IS INADMISSIBLE IN A FEDERAL PROSECUTION,
WEEKS V. UNITED STATES, SUPRA; ...  INCRIMINATING DOCUMENTS SO SECURED
BY STATE OFFICIALS WITHOUT PARTICIPATION BY FEDERAL OFFICIALS BUT
TURNED OVER FOR THEIR USE ARE ADMISSIBLE IN A FEDERAL PROSECUTION. 
BURDEAU V. MCDOWELL, 256 U.S. 465."  322 U.S., AT 492. 

THE COURT CONCLUDED, THEREFORE, BY ANALOGY TO THE THEN EXTANT SEARCH
AND SEIZURE RULE, THAT EVIDENCE COMPELLED BY A STATE GRANT OF IMMUNITY
COULD BE USED BY THE FEDERAL GOVERNMENT.  BUT THE LEGAL FOUNDATION UPON
WHICH THAT 4-TO-3 DECISION RESTED NO LONGER STANDS.  EVIDENCE ILLEGALLY
SEIZED BY STATE OFFICIALS MAY NOT NOW BE RECEIVED IN FEDERAL COURTS. 
IN ELKINS V. UNITED STATES, 364 U.S. 206, THE COURT HELD, OVER THE
DISSENT OF THE WRITER OF THE FELDMAN DECISION, THAT "EVIDENCE OBTAINED
BY STATE OFFICERS DURING A SEARCH WHICH, IF CONDUCTED BY FEDERAL
OFFICERS, WOULD HAVE VIOLATED THE DEFENDANT'S IMMUNITY FROM
UNREASONABLE SEARCHES AND SEIZURES UNDER THE FOURTH AMENDMENT IS
INADMISSIBLE OVER THE DEFENDANT'S TIMELY OBJECTION IN A FEDERAL
CRIMINAL TRIAL."  364 U.S., AT 223.  THUS, SINCE THE FUNDAMENTAL
ASSUMPTION UNDERLYING FELDMAN IS NO LONGER VALID, THE CONSTITUTIONAL
QUESTION THERE DECIDED MUST NOW BE REGARDED AS AN OPEN ONE. 

THE RELEVANT CASES DECIDED BY THIS COURT SINCE FELDMAN FALL INTO TWO
CATEGORIES.  THOSE INVOLVING A FEDERAL IMMUNITY STATUTE - EXEMPLIFIED
BY ADAMS V. MARYLAND, 347 U.S. 179 - IN WHICH THE COURT SUGGESTED THAT
THE FIFTH AMENDMENT BARS USE BY THE STATES OF EVIDENCE OBTAINED BY THE
FEDERAL GOVERNMENT UNDER THE THREAT OF CONTEMPT.  AND THOSE INVOLVING A
STATE IMMUNITY STATUTE - EXEMPLIFIED BY KNAPP V. SCHWEITZER, 357 U.S.
371 - WHERE THE COURT, APPLYING A RULE TODAY REJECTED HELD THE FIFTH
AMENDMENT INAPPLICABLE TO THE STATES.  (FN14) 

IN ADAMS V. MARYLAND, SUPRA, PETITIONER HAD TESTIFIED BEFORE A UNITED
STATES SENATE COMMITTEE INVESTIGATING CRIME, AND HIS TESTIMONY HAD
LATER BEEN USED TO CONVICT HIM OF A STATE CRIME.  A FEDERAL STATUTE AT
THAT TIME PROVIDED THAT NO TESTIMONY GIVEN BY A WITNESS IN
CONGRESSIONAL INQUIRIES "SHALL BE USED AS EVIDENCE IN ANY CRIMINAL
PROCEEDING AGAINST HIM IN ANY COURT  ...  ."  62 STAT. 833.  THE STATE
QUESTIONED THE APPLICATION OF THE STATUTE TO PETITIONER'S TESTIMONY AND
THE CONSTITUTIONALITY OF THE STATUTE IF CONSTRUED TO APPLY TO STATE
COURTS.  THE COURT, IN AN OPINION JOINED BY SEVEN MEMBERS, MADE THE
FOLLOWING SIGNIFICANT STATEMENT:  "A WITNESS DOES NOT NEED ANY STATUTE
TO PROTECT HIM FROM THE USE OF SELF-INCRIMINATING TESTIMONY HE IS
COMPELLED TO GIVE OVER HIS OBJECTION.  THE FIFTH AMENDMENT TAKES CARE
OF THAT WITHOUT A STATUTE."  347 U.S., AT 181.  (FN15) THIS STATEMENT
SUGGESTS THAT ANY TESTIMONY ELICITED UNDER THREAT OF CONTEMPT BY A
GOVERNMENT TO WHOM THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION IS APPLICABLE (AT THE TIME OF THAT DECISION IT WAS DEEMED
APPLICABLE ONLY TO THE FEDERAL GOVERNMENT) MAY NOT CONSTITUTIONALLY BE
ADMITTED INTO EVIDENCE AGAINST HIM IN ANY CRIMINAL TRIAL CONDUCTED BY A
GOVERNMENT TO WHOM THE PRIVILEGE IS ALSO APPLICABLE.  THIS STATEMENT,
READ IN LIGHT OF TODAY'S DECISION IN MALLOY V. HOGAN, ANTE, AT 1, DRAWS
INTO QUESTION THE CONTINUING AUTHORITY OF THE STATEMENTS TO THE
CONTRARY IN UNITED STATES V. MURDOCK, 284 U.S. 141, AND FELDMAN V.
UNITED STATES, SUPRA.  (FN16) 

KNAPP V. SCHWEITZER, 357 U.S. 371, INVOLVED A STATE CONTEMPT
CONVICTION FOR A WITNESS' REFUSAL TO ANSWER QUESTIONS, UNDER A GRANT OF
STATE IMMUNITY, ON THE GROUND THAT HIS ANSWERS MIGHT SUBJECT HIM TO
PROSECUTION UNDER FEDERAL LAW.  PETITIONER CLAIMED THAT "THE FIFTH
AMENDMENT GIVES HIM THE PRIVILEGE, WHICH HE CAN ASSERT AGAINST EITHER A
STATE OR THE NATIONAL GOVERNMENT, AGAINST GIVING TESTIMONY THAT MIGHT
TEND TO IMPLICATE HIM IN A VIOLATION" OF FEDERAL LAW.  ID., AT 374. 
THE COURT, APPLYING THE RULE THEN IN EXISTENCE, DENIED PETITIONER'S
CLAIM AND DECLARED THAT: 

"IT IS PLAIN THAT THE FIFTH AMENDMENT CAN NO MORE BE THOUGHT OF AS
RESTRICTING ACTION BY THE STATES THAN AS RESTRICTING THE CONDUCT OF
PRIVATE CITIZENS.  THE SOLE - ALTHOUGH DEEPLY VALUABLE - PURPOSE OF THE
FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION IS THE SECURITY OF
THE INDIVIDUAL AGAINST THE EXERTION OF THE POWER OF THE FEDERAL
GOVERNMENT TO COMPEL INCRIMINATING TESTIMONY WITH A VIEW TO ENABLING
THAT SAME GOVERNMENT TO CONVICT A MAN OUT OF HIS OWN MOUTH."  ID., AT
380. 

THE COURT HAS TODAY REJECTED THAT RULE, AND WITH IT, ALL THE EARLIER
CASES RESTING ON THAT RULE. 

THE FOREGOING MAKES IT CLEAR THAT THERE IS NO CONTINUING LEGAL
VITALITY TO, OR HISTORICAL JUSTIFICATION FOR, THE RULE THAT ONE
JURISDICTION WITHIN OUR FEDERAL STRUCTURE MAY COMPEL A WITNESS TO GIVE
TESTIMONY WHICH COULD BE USED TO CONVICT HIM OF A CRIME IN ANOTHER
JURISIDICTION. 

                                IV.  CONCLUSIONS. 

IN LIGHT OF THE HISTORY, POLICIES AND PURPOSES OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION, WE NOW ACCEPT AS CORRECT THE CONSTRUCTION
GIVEN THE PRIVILEGE BY THE ENGLISH COURTS (FN17) AND BY CHIEF JUSTICE
MARSHALL AND JUSTICE HOLMES.  SEE UNITED STATES V. SALINE BANK OF
VIRGINIA, SUPRA; BALLMANN V. FAGIN, SUPRA.  WE REJECT - AS UNSUPPORTED
BY HISTORY OR POLICY - THE DEVIATION FROM THAT CONSTRUCTION ONLY
RECENTLY ADOPTED BY THIS COURT IN UNITED STATES V. MURDOCK, SUPRA, AND
FELDMAN V. UNITED STATES, SUPRA.  WE HOLD THAT THE CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION PROTECTS A STATE WITNESS AGAINST
INCRIMINATION UNDER FEDERAL AS WELL AS STATE LAW AND A FEDERAL WITNESS
AGAINST INCRIMINATION UNDER STATE AS WELL AS FEDERAL LAW. 

WE MUST NOW DECIDE WHAT EFFECT THIS HOLDING HAS ON EXISTING STATE
IMMUNITY LEGISLATION.  IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, THIS
COURT CONSIDERED A FEDERAL STATUTE WHICH PROVIDED THAT NO "EVIDENCE
OBTAINED FROM A PARTY OR WITNESS BY MEANS OF A JUDICIAL PROCEEDING  ...
SHALL BE GIVEN IN EVIDENCE, OR IN ANY MANNER USED AGAINST HIM  ...  IN
ANY COURT OF THE UNITED STATES  ...  ."  ID., AT 560.  NOTWITHSTANDING
THIS STATUTE, APPELLANT, CLAIMING HIS PRIVILEGE AGAINST SELF
INCRIMINATION, REFUSED TO ANSWER CERTAIN QUESTIONS BEFORE A FEDERAL
GRAND JURY.  THE COURT SAID "THAT LEGISLATION CANNOT ABRIDGE A
CONSTITUTIONAL PRIVILEGE, AND THAT IT CANNOT REPLACE OR SUPPLY ONE, AT
LEAST UNLESS IT IS SO BROAD AS TO HAVE THE SAME EXTENT IN SCOPE AND
EFFECT."  ID., AT 585.  APPLYING THIS PRINCIPLE TO THE FACTS OF THAT
CASE, THE COURT UPHELD APPELLANT'S REFUSAL TO ANSWER ON THE GROUND THAT
THE STATUTE: 

"COULD NOT, AND WOULD NOT, PREVENT THE USE OF HIS TESTIMONY TO SEARCH
OUT OTHER TESTIMONY TO BE USED IN EVIDENCE AGAINST HIM OR HIS PROPERTY,
IN A CRIMINAL PROCEEDING IN SUCH COURT  ...  ," ID., AT 564. 

THAT IT: 

"COULD NOT PREVENT THE OBTAINING AND THE USE OF WITNESSES AND
EVIDENCE WHICH SHOULD BE ATTRIBUTABLE DIRECTLY TO THE TESTIMONY HE
MIGHT GIVE UNDER COMPULSION, AND ON WHICH HE MIGHT BE CONVICTED, WHEN
OTHERWISE, AND IF HE HAD REFUSED TO ANSWER, HE COULD NOT POSSIBLY HAVE
BEEN CONVICTED  ...  ," IBID. 

AND THAT IT: 

"AFFORDS NO PROTECTION AGAINST THAT USE OF COMPELLED TESTIMONY WHICH
CONSISTS IN GAINING THEREFROM A KNOWLEDGE OF THE DETAILS OF A CRIME,
AND OF SOURCES OF INFORMATION WHICH MAY SUPPLY OTHER MEANS OF
CONVICTING THE WITNESS OR PARTY."  ID., AT 586. 

APPLYING THE HOLDING OF THAT CASE TO OUR HOLDINGS TODAY THAT THE
PRIVILEGE AGAINST SELF-INCRIMINATION PROTECTS A STATE WITNESS AGAINST
FEDERAL PROSECUTION, SUPRA, AT 77-78, AND THAT "THE SAME STANDARDS MUST
DETERMINE WHETHER A WITNESS' SILENCE IN EITHER A FEDERAL OR STATE
PROCEEDING IS JUSTIFIED,"  MALLOY V. HOGAN, ANTE, AT 11, WE HOLD THE
CONSTITUTIONAL RULE TO BE THAT A STATE WITNESS MAY NOT BE COMPELLED TO
GIVE TESTIMONY WHICH MAY BE INCRIMINATING UNDER FEDERAL LAW UNLESS THE
COMPELLED TESTIMONY AND ITS FRUITS CANNOT BE USED IN ANY MANNER BY
FEDERAL OFFICIALS IN CONNECTION WITH A CRIMINAL PROSECUTION AGAINST
HIM.  WE CONCLUDE, MOREOVER, THAT IN ORDER TO IMPLEMENT THIS
CONSTITUTIONAL RULE AND ACCOMMODATE THE INTERESTS OF THE STATE AND
FEDERAL GOVERNMENTS IN INVESTIGATING AND PROSECUTING CRIME, THE FEDERAL
GOVERNMENT MUST BE PROHIBITED FROM MAKING ANY SUCH USE OF COMPELLED
TESTIMONY AND ITS FRUITS.  (FN18)  THIS EXCLUSIONARY RULE, WHILE
PERMITTING THE STATES TO SECURE INFORMATION NECESSARY FOR EFFECTIVE LAW
ENFORCEMENT, LEAVES THE WITNESS AND THE FEDERAL GOVERNMENT IN
SUBSTANTIALLY THE SAME POSITION AS IF THE WITNESS HAD CLAIMED HIS
PRIVILEGE IN THE ABSENCE OF A STATE GRANT OF IMMUNITY. 

IT FOLLOWS THAT PETITIONERS HERE MAY NOW BE COMPELLED TO ANSWER THE
QUESTIONS PROPOUNDED TO THEM.  AT THE TIME THEY REFUSED TO ANSWER,
HOWEVER, PETITIONERS HAD A REASONABLE FEAR, BASED ON THIS COURT'S
DECISION IN FELDMAN V. UNITED STATES, SUPRA, THAT THE FEDERAL
AUTHORITIES MIGHT USE THE ANSWERS AGAINST THEM IN CONNECTION WITH A
FEDERAL PROSECUTION.  WE HAVE NOW OVERRULED FELDMAN AND HELD THAT THE
FEDERAL GOVERNMENT MAY MAKE NO SUCH USE OF THE ANSWERS.  FAIRNESS
DICTATES THAT PETITIONERS SHOULD NOW BE AFFORDED AN OPPORTUNITY, IN
LIGHT OF THIS DEVELOPMENT, TO ANSWER THE QUESTIONS.  CF.  RALEY V.
OHIO, 360 U.S. 423.  ACCORDINGLY, THE JUDGMENT OF THE NEW JERSEY COURTS
ORDERING PETITIONERS TO ANSWER THE QUESTIONS MAY REMAIN UNDISTURBED. 
BUT THE JUDGMENT OF CONTEMPT IS VACATED AND THE CAUSE REMANDED TO THE
NEW JERSEY SUPREME COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  SINCE THE PRIVILEGE IS NOW FULLY APPLICABLE TO THE STATE AND TO
THE FEDERAL GOVERNMENT, THE BASIC ISSUE IS THE SAME WHETHER THE
TESTIMONY IS COMPELLED BY THE FEDERAL GOVERNMENT AND USED BY A STATE,
OR COMPELLED BY A STATE AND USED BY THE FEDERAL GOVERNMENT. 

FN2  THE WATERFRONT COMMISSION OF NEW YORK HARBOR IS A BISTATE BODY
ESTABLISHED UNDER AN INTERSTATE COMPACT APPROVED BY CONGRESS.  67 STAT.
541. 

FN3  AT A PRIOR HEARING, PETITIONERS HAD REFUSED TO ANSWER THE
QUESTIONS, NOT ON THE GROUND OF SELF-INCRIMINATION, BUT ON THE GROUND
THAT THE COMMISSION HAD NO STATUTORY AUTHORITY TO INVESTIGATE THE WORK
STOPPAGE BECAUSE IT INVOLVED A LABOR DISPUTE OVER WHICH THE NATIONAL
LABOR RELATIONS BOARD HAD EXCLUSIVE JURISDICTION.  THIS CLAIM WAS
LITIGATED THROUGH THE STATE COURTS AND REJECTED, 35 N.J. 62, 171 A.2D
295, AND THIS COURT DENIED REVIEW, 368 U.S. 32.  PETITIONERS THEREUPON
PURGED THEMSELVES OF CONTEMPT BUT AGAIN REFUSED TO ANSWER THE
QUESTIONS, THIS TIME ON THE GROUND OF SELF-INCRIMINATION.  IN REVIEWING
THE CONTEMPT JUDGMENTS WHICH FORM THE BASES OF THIS CASE, THE NEW
JERSEY SUPREME COURT CORRECTLY HELD THAT PETITIONERS DID NOT, AT THE
PRIOR HEARING, WAIVE THEIR PRIVILEGE AGAINST SELF-INCRIMINATION.  39
N.J. 436, 449, 189 A.2D 36, 44.    FN4  THE QUOTATION IS FROM GRISWOLD,
THE FIFTH AMENDMENT TODAY (1955), 7. 

FN5  IT HAS BEEN ARGUED THAT PERMITTING A WITNESS IN ONE JURISDICTION
WITHIN OUR FEDERAL STRUCTURE TO INVOKE THE PRIVILEGE ON THE GROUND THAT
HE FEARS PROSECUTION IN ANOTHER JURISDICTION: 

"IS RATIONAL ONLY IF THE POLICY OF THE PRIVILEGE IS ASSUMED TO BE TO
EXCUSE THE WITNESS FROM THE UNPLEASANTNESS, THE INDIGNITY, THE
'UNNATURAL' CONDUCT OF DENOUNCING HIMSELF.  BUT THE POLICY OF THE
PRIVILEGE IS NOT THIS.  THE POLICY OF THE PRIVILEGE IS TO REGULATE A
PARTICULAR GOVERNMENT-GOVERNED RELATION - FIRST, TO HELP PREVENT
INHUMANE TREATMENT OF PERSONS FROM WHOM INFORMATION IS DESIRED AND,
SECOND, TO SATISFY POPULAR SENTIMENT THAT, WHEN POWERFUL AND IMPERSONAL
GOVERNMENT ARRAYS ITS FORCES AGAINST SOLITARY GOVERNED, IT WOULD BE A
VIOLATION OF THE INDIVIDUAL'S 'SOVEREIGNTY' AND LESS THAN FAIR FOR THE
GOVERNMENT TO BE PERMITTED TO CONSCRIPT THE KNOWLEDGE OF THE GOVERNED
TO ITS AID.  WHERE THE CRIME IS A FOREIGN CRIME, ANY MOTIVE TO INFLICT
BRUTALITY UPON A PERSON BECAUSE OF THE INCRIMINATING NATURE OF THE
DISCLOSURE - ANY 'CONVICTION HUNGER' AS SUCH - IS ABSENT.  AND THE
SENTIMENTS RELATING TO THE RULES OF WAR BETWEEN GOVERNMENT AND GOVERNED
DO NOT APPLY WHERE THE TWO ARE NOT AT WAR  ...  . 

"THUS, REASONING FROM ITS RATIONALES, THE PRIVILEGE SHOULD NOT APPLY
NO MATTER HOW INCRIMINATING IS THE DISCLOSURE UNDER FOREIGN LAW AND NO
MATTER HOW PROBABLE IS PROSECUTION BY THE FOREIGN SOVEREIGNTY.  THIS IS
SO WHETHER THE RELEVANT TWO SOVEREIGNTIES (SUCH AS FEDERAL AND STATE)
WITH JURISDICTION OVER THE SAME GEOGRAPHICAL AREA."  8 WIGMORE,
EVIDENCE (MCNAUGHTON REV., 1961), 345. 

AS NOTED IN THE TEXT, HOWEVER, THE PRIVILEGE AGAINST SELF
INCRIMINATION REPRESENTS MANY FUNDAMENTAL VALUES AND ASPIRATIONS.  IT
IS "AN EXPRESSION OF THE MORAL STRIVING OF THE COMMUNITY ...  .  A
REFLECTION OF OUR COMMON CONSCIENCE  ...  ."  MALLOY V. HOGAN, ANTE, P.
9, N. 7, QUOTING GRISWOLD, THE FIFTH AMENDMENT TODAY (1955), 73.  THAT
IS WHY IT IS REGARDED AS SO FUNDAMENTAL A PART OF OUR CONSTITUTIONAL
FABRIC, DESPITE THE FACT THAT "THE LAW AND THE LAWYERS  ...  HAVE NEVER
MADE UP THEIR MINDS JUST WHAT IT IS SUPPOSED TO DO OR JUST WHOM IT IS
INTENDED TO PROTECT."  KALVEN, INVOKING THE FIFTH AMENDMENT - SOME
LEGAL AND IMPRACTICAL CONSIDERATIONS, 9 BULL.  ATOMIC SCI.  181, 182. 
IT WILL NOT DO, THEREFORE, TO ASSIGN ONE ISOLATED POLICY TO THE
PRIVILEGE, AND THEN TO ARGUE THAT SINCE "THE" POLICY MAY NOT BE
FURTHERED MEASURABLY BY APPLYING THE PRIVILEGE ACROSS STATE-FEDERAL
LINES, IT FOLLOWS THAT THE PRIVILEGE SHOULD NOT BE SO APPLIED. 

FN6  THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION HAS TWO
PRIMARY INTERRELATED FACETS: THE GOVERNMENT MAY NOT USE COMPULSION TO
ELICIT SELF-INCRIMINATING STATEMENTS, SEE, E.G., COUNSELMAN V.
HITCHCOCK, 142 U.S. 547; AND THE GOVERNMENT MAY NOT PERMIT THE USE IN A
CRIMINAL TRIAL OF SELF-INCRIMINATING STATEMENTS ELICITED BY
COMPULSION.  SEE, E.G., HAYNES V. WASHINGTON, 373 U.S. 503.  IN EVERY
"WHIPSAW" CASE, EITHER THE "COMPELLING" GOVERNMENT OR THE "USING"
GOVERNMENT IS A STATE, AND, UNTIL TODAY, THE STATES WERE NOT DEEMED
FULLY BOUND BY THE PRIVILEGE AGAINST SELF-INCRIMINATION.  NOW THAT BOTH
GOVERNMENTS ARE FULLY BOUND BY THE PRIVILEGE, THE CONCEPTUAL DIFFICULTY
OF PINPOINTING THE ALLEGED VIOLATION OF THE PRIVILEGE ON "COMPULSION"
OR "USE" NEED NO LONGER CONCERN US. 

FN7  IN THE QUEEN V. BOYES, 1 B.&S. 311, DECIDED BY THE QUEEN'S BENCH
IN 1861, A WITNESS HAD DECLINED TO ANSWER A QUESTION ON THE GROUND THAT
IT MIGHT TEND TO INCRIMINATE HIM, WHEREUPON THE "SOLICITOR GENERAL THEN
PRODUCED A PARDON OF THE WITNESS."  ID., AT 313.  THE WITNESS
NEVERTHELESS REFUSED TO ANSWER THE QUESTION ON THE GROUND THAT HE COULD
STILL BE IMPEACHED BY THE PARLIAMENT.  THE COURT HELD: 

"THAT THE DANGER TO BE APPREHENDED MUST BE REAL AND APPRECIABLE, WITH
REFERENCE TO THE ORDINARY OPERATION OF LAW IN THE ORDINARY COURSE OF
THINGS - NOT A DANGER OF AN IMAGINARY AND UNSUBSTANTIAL CHARACTER,
HAVING REFERENCE TO SOME EXTRAORDINARY AND BARELY POSSIBLE CONTINGENCY,
SO IMPROBABLE THAT NO REASONABLE MAN WOULD SUFFER IT TO INFLUENCE HIS
CONDUCT  ...  . 

NOW, IN THE PRESENT CASE, NO ONE SERIOUSLY SUPPOSES THAT THE WITNESS
RUNS THE SLIGHTEST RISK OF AN IMPEACHMENT  ...  .  NO INSTANCE OF SUCH
A PROCEEDING IN THE UNHAPPILY TOO NUMEROUS CASES OF BRIBERY WHICH HAVE
ENGAGED THE ATTENTION OF THE HOUSE OF COMMONS HAS EVER OCCURRED, OR, SO
FAR AS WE ARE AWARE, HAS EVER BEEN THOUGHT OF."  ID., AT 330-331. 

FN8  THE COURT IN BROWN V. WALKER, 161 U.S. 591, SIGNIFIED APPROVAL
OF THE ENGLISH RULE ANNOUNCED IN THE QUEEN V. BOYES, SUPRA, AS
FOLLOWS: 

"BUT EVEN GRANTING THAT THERE WERE STILL A BARE POSSIBILITY THAT BY
HIS DISCLOSURE HE MIGHT BE SUBJECTED TO THE CRIMINAL LAWS OF SOME OTHER
SOVEREIGNTY, THAT, AS CHIEF JUSTICE COCKBURN SAID IN THE QUEEN V.
BOYES, 1 B.&S. 311, IN REPLY TO THE ARGUMENT THAT THE WITNESS WAS NOT
PROTECTED BY HIS PARDON AGAINST AN IMPEACHMENT BY THE HOUSE OF COMMONS,
IS NOT A REAL AND PROBABLE DANGER, WITH REFERENCE TO THE ORDINARY
OPERATIONS OF THE LAW IN THE ORDINARY COURTS, BUT 'A DANGER OF AN
IMAGINARY AND UNSUBSTANTIAL CHARACTER, HAVING REFERENCE TO SOME
EXTRAORDINARY AND BARELY POSSIBLE CONTINGENCY, SO IMPROBABLE THAT NO
REASONABLE MAN WOULD SUFFER IT TO INFLUENCE HIS CONDUCT.'  SUCH DANGERS
IT WAS NEVER THE OBJECT OF THE PROVISION TO OBVIATE."  161 U.S., AT
608.  SEE NOTE 7, SUPRA.

THE LOWER FEDERAL COURTS WERE ALSO FOLLOWING THE ENGLISH RULE THAT A
REFUSAL TO ANSWER QUESTIONS COULD LEGITIMATELY BE BASED ON THE DANGER
OF INCRIMINATION IN ANOTHER JURISDICTION.  IN THE CASE OF IN RE GRAHAM,
10 FED. CAS. 913 (NO. 5,659), FOR EXAMPLE, THE WITNESS REFUSED TO
ANSWER QUESTIONS ASKED BY A FEDERAL OFFICIAL ON THE GROUND THAT ANSWERS
TO SUCH QUESTIONS MIGHT EXPOSE "HIM TO A CRIMINAL PROSECUTION UNDER THE
LAWS OF THE STATE OF NEW YORK."  ID., AT 914.  JUDGE BLATCHFORD HELD
THAT THE WITNESS WAS "PRIVILEGED FROM ANSWERING THE QUESTIONS."  IBID.
IN THE CASE OF IN RE HESS, 134 F. 109, DECIDED IN 1905, WHERE A
BANKRUPT REFUSED TO ANSWER CERTAIN QUESTIONS ON THE GROUND THAT THEY
MIGHT TEND TO INCRIMINATE HIM UNDER STATE LAW, THE COURT SAID: 

"SECTION 860 OF THE REVISED STATUTES ONLY PROHIBITS THE USE OF
EVIDENCE THAT MAY BE OBTAINED FROM THE BANKRUPT'S BOOKS IN PROSECUTIONS
IN THE FEDERAL COURTS.  THERE IS NOTHING IN THIS SECTION WHICH EXTENDS
THAT IMMUNITY TO THE USE OF SUCH EVIDENCE IN THE STATE COURTS, AND
THERE IS NOTHING TO PREVENT THE TRUSTEE FROM MAKING USE OF THE
BANKRUPT'S BOOKS IN A CRIMINAL PROSECUTION AGAINST HIM INSTITUTED IN
THE STATE COURTS.  OBVIOUSLY, THEREFORE, IF SECTION 7, CL. 9, OF THE
BANKRUPT ACT, DOES NOT PROTECT HIM AGAINST THE USE OF THE EVIDENCE
WHICH HE ALLEGES IS CONTAINED IN HIS BOOKS, OF AN INCRIMINATING NATURE,
IN EITHER THE STATE OR FEDERAL COURTS, AND SECTION 860 OF THE REVISED
STATUTES EXTENDS THE IMMUNITY ONLY TO FEDERAL COURTS, AND NOT TO STATE
COURTS, IT IS PLAIN THAT WHATEVER INCRIMINATING EVIDENCE THE BOOKS MAY
CONTAIN COULD BE USED WITHOUT RESTRICTION IN THE STATE COURTS FOR THE
PURPOSE OF CONVICTING HIM OF ANY CRIME FOR WHICH HE MIGHT BE INDICTED
THERE, AND, IN CONSEQUENCE OF THIS DANGER TO HIM, THE PLEA OF HIS
CONSTITUTIONAL PRIVILEGE MUST PREVAIL."  ID., AT 112. 

ALSO SEE, E.G., IN RE KOCH, 14 FED. CAS. 832 (NO. 7,916); IN RE
FELDSTEIN, 103 F. 269; IN RE HENSCHEL, 7 AM. BANKR.  R. 207; IN RE
KANTER, 117 F. 356; IN RE HOOKS SMELTING CO., 138 F. 954, 146 F. 336. 

FN9  AT THIS TIME, THE PRIVILEGE AGAINST SELF-INCRIMINATION HAD NOT
YET BEEN HELD APPLICABLE TO THE STATES THROUGH THE FOURTEENTH
AMENDMENT. 

FN10  SEE NOTE 7, SUPRA.  NOR WERE THE NORTH CAROLINA CASES RELIED ON
IN HALE V. HENKEL SETTLED AUTHORITY IN FAVOR OF THE PROPOSITION THAT
THE FIFTH AMENDMENT DID NOT PROTECT A FEDERAL WITNESS FROM
INCRIMINATING HIMSELF UNDER STATE LAW.  IN STATE V. MARCH, 1 JONES
(N.C.)  526, THE NORTH CAROLINA SUPREME COURT IN 1853 DID SAY THAT THE
NORTH CAROLINA "COURTS, IN ADMINISTERING JUSTICE AMONG THEIR SUITORS,
WILL NOT NOTICE THE CRIMINAL LAWS OF ANOTHER STATE OR COUNTRY, SO FAR
AS TO PROTECT A WITNESS FROM BEING ASKED WHETHER HE HAD NOT VIOLATED
THEM."  THAT COURT, OF COURSE, WAS NOT APPLYING EITHER THE FIFTH
AMENDMENT OR THE FOURTEENTH AMENDMENT (WHICH WAS NOT YET ENACTED), AND
THE NORTH CAROLINA RULE AGAINST SELF-INCRIMINATION APPARENTLY WAS
NARROWER IN SCOPE THAN THE FEDERAL RULE.  SEE STATE V. THOMAS, 98 N.C.
599, 603, 4 S.E. 518, 520 (CITING CASES).  IN ANY EVENT, THE AUTHORITY
OF THE MARCH CASE HAD BEEN SIGNIFICANTLY DIMINISHED, IF NOT
DISCREDITED, BY THE SECOND OF THE NORTH CAROLINA CASES RELIED UPON IN
HALE V. HENKEL.  IN STATE V. THOMAS, SUPRA, THE NORTH CAROLINA SUPREME
COURT CONCEDED THAT THE MARCH "CASE IS NOT DISTINGUISHABLE IN PRINCIPLE
FROM THAT BEFORE US."  IT CONTINUED:  "WE PREFER, HOWEVER, TO PUT OUR
DECISION UPON OTHER GROUND - MORE SATISFACTORY TO OUR OWN MINDS AND
WELL SUSTAINED BY ADJUDICATIONS IN OTHER COURTS."  98 N.C., AT 604, 4
S.E., AT 520-521.  THE COURT THEN HELD THAT THE WITNESS HAD WAIVED HIS
PRIVILEGE AGAINST SELF-INCRIMINATION. 

FN11  IT HAS BEEN ARGUED THAT "IT IS ABUNDANTLY CLEAR  ...  THAT
SALINE BANK STANDS FOR NO CONSTITUTIONAL PRINCIPLE WHATEVER.  IT WAS
MERELY A REASSERTION OF THE ANCIENT EQUITY RULE THAT A COURT OF EQUITY
WILL NOT ORDER DISCOVERY THAT MAY SUBJECT A PARTY TO CRIMINAL
PROSECUTION.  IN FACT, THE DECISION WAS CITED IN SUPPORT OF THAT
PROPOSITION BY AN ESTEEMED MEMBER OF THE VERY COURT THAT DECIDED THE
CASE.  2 STORY, COMMENTARIES ON EQUITY, SEC 1494, N. 1 (1836)." 
HUTCHESON V. UNITED STATES, 369 U.S. 599, 608, N. 13 (OPINION OF MR.
JUSTICE HARLAN). 

THE CITED AUTHORITY DOES NOT, HOWEVER, SUPPORT THE ARGUMENT "THAT
SALINE BANK STANDS FOR NO CONSTITUTIONAL PRINCIPLE WHATEVER."  THAT
CASE WAS CITED BY STORY, INTERMINGLED WITH MORE THAN A DOZEN OTHER
CASES, IN A FOOTNOTE TO THE FOLLOWING STATEMENT:  "COURTS OF EQUITY
...  WILL NOT COMPEL A DISCOVERY IN AID OF A CRIMINAL PROSECUTION  ...
FOR IT IS AGAINST THE GENIUS OF THE COMMON LAW TO COMPEL A PARTY TO
ACCUSE HIMSELF; AND IT IS AGAINST THE GENERAL PRINCIPLES OF EQUITY TO
AID IN THE ENFORCEMENT OF PENALTIES OR FORFEITURES."  THIS STATEMENT
SUGGESTS THAT THE COMMON-LAW PRIVILEGE AND THE EQUITABLE RULE ARE SO
INTERMESHED THAT IT SERVES NO USEFUL PURPOSE TO ATTEMPT TO ASCERTAIN
WHETHER A GIVEN APPLICATION BY A COURT OF EQUITY RESTED ON THE FORMER
OR THE LATTER. 

FN12  SEE, E.G., UNITED STATES V. LOMBARDO, 228 F. 980, AFF'D ON
OTHER GROUNDS, 241 U.S. 73, WHERE THE COURT ACCEPTED DEFENDANT'S
CONTENTION THAT IF SHE ANSWERED CERTAIN QUESTIONS, SHE MIGHT
"INCRIMINATE HERSELF UNDER THE CRIMINAL LAWS OF WASHINGTON."  SEE ALSO,
E.G., BUCKEYE POWDER CO. V. HAZARD POWDER CO., 205 F. 827; IN RE DOYLE,
42 F. 2D 686, REV'D WITHOUT OPINION, 47 F.2D 1086. 

FN13  THE GOVERNMENT ALSO RELIED ON THE NORTH CAROLINA CASE OF STATE
V. MARCH, SUPRA, WHICH, AS PREVIOUSLY NOTED, SEE NOTE 10, SUPRA, HAD
BEEN DISCREDITED BY THE SUBSEQUENT CASE OF STATE V. THOMAS, SUPRA. 

FN14  IN MILLS V. LOUISIANA, 360 U.S. 230, THE COURT, WITHOUT
OPINION, SIMPLY APPLIED THE RULE ANNOUNCED IN KNAPP V. SCHWEITZER, 357
U.S. 371.  IN HUTCHESON V. UNITED STATES, 369 U.S. 599, THERE WAS NO
OPINION OF THE COURT. 

FN15  THE COURT IN ADAMS V. MARYLAND, 347 U.S. 179, WENT ON TO
CONSTRUE THE STATUTE AS AFFORDING MORE PROTECTION THAN WOULD BE
PROVIDED BY THE FIFTH AMENDMENT ALONE.  IT HELD THAT THE STATUTE
APPLIED EVEN WHERE, AS THERE, THE WITNESS HAD NOT CLAIMED HIS PRIVILEGE
AGAINST SELF-INCRIMINATION BEFORE BEING REQUIRED TO TESTIFY.  IT HELD,
AS WELL, THAT THE STATUTE DID, AND CONSTITUTIONALLY COULD, PREVENT USE
OF THE TESTIMONY IN STATE AS WELL AS FEDERAL COURTS. 

FN16  IN ULLMANN V. UNITED STATES, 350 U.S. 422, DECIDED TWO YEARS
AFTER ADAMS, THE COURT DID NOT REACH THE CONSTITUTIONAL QUESTION OF
WHETHER A STATE COULD PROSECUTE A PERSON ON THE BASIS OF EVIDENCE
OBTAINED BY THE FEDERAL GOVERNMENT UNDER A FEDERAL IMMUNITY STATUTE. 
THE COURT AGAIN CONSTRUED THE APPLICABLE STATUTE, WHICH RELATED TO
TESTIMONY INVOLVING NATIONAL SECURITY, TO APPLY TO THE STATES AND HELD
THAT THE PARAMOUNT FEDERAL "AUTHORITY IN SAFE-GUARDING NATIONAL
SECURITY" JUSTIFIES "THE RESTRICTION IT HAS PLACED ON THE EXERCISE OF
STATE POWER  ...  ."  ID., AT 436. 

FN17  THE ENGLISH RULE APPARENTLY PREVAILS ALSO IN CANADA, AUSTRALIA
AND INDIA.  SEE GRANT, FEDERALISM AND SELF-INCRIMINATION:  COMMON LAW
AND BRITISH EMPIRE COMPARISONS, 5 U.C.L.A.L. REV. 1 (1958). 

FN18  ONCE A DEFENDANT DEMONSTRATES THAT HE HAS TESTIFIED, UNDER A
STATE GRANT OF IMMUNITY, TO MATTERS RELATED TO THE FEDERAL PROSECUTION,
THE FEDERAL AUTHORITIES HAVE THE BURDEN OF SHOWING THAT THEIR EVIDENCE
IS NOT TAINTED BY ESTABLISHING THAT THEY HAD AN INDEPENDENT, LEGITIMATE
SOURCE FOR THE DISPUTED EVIDENCE. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND OPINION OF THE COURT
FOR THE REASONS STATED IN THAT OPINION AND FOR THE REASONS STATED IN
FELDMAN V. UNITED STATES, 322 U.S. 487, 494 (DISSENTING OPINION), AS
WELL AS ADAMSON V. CALIFORNIA, 332 U.S. 46, 68 (DISSENTING OPINION);
SPEISER V. RANDALL, 357 U.S. 513, 529 (CONCURRING OPINION); BARTKUS V.
ILLINOIS, 359 U.S. 121, 150 (DISSENTING OPINION); AND ABBATE V. UNITED
STATES, 359 U.S. 187, 201 (DISSENTING OPINION). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, CONCURRING IN THE
JUDGMENT. 

UNLESS I WHOLLY MISAPPREHEND THE COURT'S OPINION, ITS HOLDING THAT
TESTIMONY COMPELLED IN A STATE PROCEEDING OVER A WITNESS' CLAIM THAT
SUCH TESTIMONY WILL INCRIMINATE HIM MAY NOT BE USED AGAINST THE WITNESS
IN A FEDERAL CRIMINAL PROSECUTION RESTS ON CONSTITUTIONAL GROUNDS.  ON
THAT BASIS, THE CONTRARY CONCLUSION OF FELDMAN V. UNITED STATES, 322
U.S. 487, IS OVERRULED.    I BELIEVE THAT THE CONSTITUTIONAL HOLDING OF
FELDMAN WAS CORRECT, AND WOULD NOT OVERRULE IT.  TO THE EXTENT,
HOWEVER, THAT THE DECISION IN THAT CASE MAY HAVE RESTED ALSO ON A
REFUSAL TO EXERCISE THIS COURT'S "SUPERVISORY POWER" OVER THE
ADMINISTRATION OF JUSTICE IN FEDERAL COURTS, I THINK THAT IT CAN NO
LONGER BE CONSIDERED GOOD LAW, IN LIGHT OF THIS COURT'S SUBSEQUENT
DECISION IN ELKINS V. UNITED STATES, 364 U.S. 206.  IN ELKINS, THIS
COURT, EXERCISING ITS SUPERVISORY POWER, DID AWAY WITH THE "SILVER
PLATTER" DOCTRINE AND PROHIBITED THE USE OF EVIDENCE UNCONSTITUTIONALLY
SEIZED BY STATE AUTHORITIES IN A FEDERAL CRIMINAL TRIAL INVOLVING THE
PERSON SUFFERING SUCH A SEIZURE.  I BELIEVE THAT A SIMILAR SUPERVISORY
RULE OF EXCLUSION SHOULD FOLLOW IN A CASE OF THE KIND NOW BEFORE US,
AND SOLELY ON THAT BASIS CONCUR IN THIS JUDGMENT. 

 I. 

THE COURT'S CONSTITUTIONAL CONCLUSIONS ARE THOUGHT BY IT TO FOLLOW
FROM WHAT IT TERMS THE "POLICIES" OF THE PRIVILEGE AGAINST SELF
INCRIMINATION AND A RE-EXAMINATION OF VARIOUS CASES IN THIS COURT,
PARTICULARLY IN THE CONTEXT OF EARLY ENGLISH LAW.  ALMOST ENTIRELY
ABSENT FROM THE STATEMENT OF "POLICIES" IS ANY REFERENCE TO THE
PARTICULAR PROBLEM OF THIS CASE; AT BEST, THE STATEMENT SUGGESTS THE
SET OF VALUES WHICH ARE ON ONE SIDE OF THE ISSUE.  THE DISCUSSION OF
PRECEDENT IS SCARCELY MORE HELPFUL.  IT INTERTWINES DECISIONS OF THIS
COURT WITH DECISIONS IN ENGLISH COURTS, WHICH PERHAPS FOLLOW A
DIFFERENT RULE,  (FN1)  AND CASTS DOUBT FOR ONE REASON OR ANOTHER ON
EVERY AMERICAN CASE WHICH DOES NOT ACCORD WITH THE RESULT NOW REACHED. 
WHEN THE SKEIN IS UNTANGLED, HOWEVER, AND THE LINE OF CASES IS SPREAD
OUT, TWO FACTS CLEARLY EMERGE: 

(1)  WITH TWO EARLY AND SOMEWHAT DOUBTFUL EXCEPTIONS, THIS COURT HAS
CONSISTENTLY REJECTED THE PROPOSITION THAT THE DANGER OF INCRIMINATION
IN THE COURT OF ANOTHER JURISDICTION IS A SUFFICIENT BASIS FOR INVOKING
A PRIVILEGE AGAINST SELF-INCRIMINATION; 

(2)  WITHOUT ANY EXCEPTION, IN EVERY CASE INVOLVING AN IMMUNITY
STATUTE IN WHICH THE COURT HAS TREATED THE QUESTION NOW BEFORE US, IT
HAS REJECTED THE PRESENT MAJORITY'S VIEWS. 

THE FIRST OF THE TWO EXCEPTIONAL CASES IS UNITED STATES V. SALINE
BANK OF VIRGINIA, 1 PET. 100, DECIDED IN 1828; THE ENTIRE OPINION IN
THAT CASE IS QUOTED IN THE MAJORITY OPINION, ANTE, PP. 59-60.   IT IS
NOT CLEAR WHETHER THAT CASE HAS ANY BEARING ON THE PRIVILEGE AGAINST
SELF-INCRIMINATION AT ALL.  (FN2)  THE SECOND CASE IS BALLMANN V.
FAGIN, 200 U.S. 186, DECIDED IN 1906.  THE STATEMENT THAT THE APPELLANT
"WAS EXONERATED FROM DISCLOSURES WHICH WOULD HAVE EXPOSED HIM TO THE
PENALTIES OF THE STATE LAW," ID., AT 195, WAS AT BEST AN ALTERNATIVE
HOLDING AND PROBABLY NOT EVEN THAT.  (FN3) BALLMANN HAD BASED HIS
REFUSAL TO TESTIFY BEFORE THE GRAND JURY SOLELY ON THE POSSIBILITY OF
INCRIMINATION UNDER STATE LAW, ID., AT 193-194.  NEVERTHELESS, BEFORE
CONSIDERING THE EFFECT OF STATE INCRIMINATION AT ALL, THE COURT POINTED
OUT THAT THE FACTS SHOWED A LIKELIHOOD OF INCRIMINATION UNDER FEDERAL
LAW.  ID., AT 195.  THE COURT THEN PROCEEDED TO SAY: 

"NOT IMPOSSIBLY BALLMANN TOOK THIS ASPECT OF THE MATTER FOR GRANTED,
AS ONE WHICH WOULD BE PERCEIVED BY THE COURT WITHOUT HIS DISAGREEABLY
EMPHASIZING HIS OWN FEARS.  BUT HE DID CALL ATTENTION TO ANOTHER LESS
LIKELY TO BE KNOWN.  AS WE HAVE SAID, HE SET FORTH THAT THERE WERE MANY
PROCEEDINGS ON FOOT AGAINST HIM AS PARTY TO A 'BUCKET SHOP,' AND SO
SUBJECT TO THE CRIMINAL LAW OF THE STATE IN WHICH THE GRAND JURY WAS
SITTING.  ACCORDING TO UNITED STATES V. SALINE BANK, 1 PETERS, 100, HE
WAS EXONERATED FROM DISCLOSURES WHICH WOULD HAVE EXPOSED HIM TO THE
PENALTIES OF THE STATE LAW.  SEE JACK V. KANSAS, 199 U.S. 372, DECIDED
THIS TERM.  ONE WAY OR THE OTHER WE ARE OF OPINION THAT BALLMANN COULD
NOT BE REQUIRED TO PRODUCE HIS CASH BOOK IF HE SET UP THAT IT WOULD
TEND TO CRIMINATE HIM."  ID., AT 195-196. 

SINCE THE JACK CASE WHICH THE COURT CITED IMMEDIATELY AFTER REFERRING
TO SALINE BANK HAD BEEN DECIDED JUST A FEW WEEKS BEFORE BALLMANN AND
WAS CONTRARY TO SALINE BANK, IT IS PLAIN THAT THE COURT WAS NOT
APPROVING AND APPLYING THE LATTER CASE.  THE EXPLANATION FOR THE
COURT'S INCLUSION OF THIS AMBIGUOUS AND INCONCLUSIVE DISCUSSION OF
STATE INCRIMINATION IS SURELY THE FACT THAT BALLMANN HAD FAILED TO SET
UP THE CLAIM OF FEDERAL INCRIMINATION ON WHICH THE COURT RELIED. 

NEITHER OF THESE TWO CASES, THEREFORE, "SQUARELY HOLDS," ANTE, P. 60;
SEE ANTE, P. 65, THAT A DANGER OF INCRIMINATION UNDER STATE LAW
RELIEVES A WITNESS FROM TESTIFYING BEFORE FEDERAL AUTHORITIES.  MORE TO
THE POINT, WHATEVER FORCE THESE TWO CASES PROVIDE FOR THE MAJORITY'S
POSITION IS WHOLLY VITIATED BY SUBSEQUENT CASES, WHICH ARE FLATLY
CONTRADICTORY TO THAT POSITION. 

IN JACK V. KANSAS, 199 U.S. 372, DECIDED IN 1905, THE COURT
CONSIDERED A KANSAS IMMUNITY STATUTE.  THE WITNESS HAD REFUSED TO
TESTIFY ON THE GROUND THAT HIS TESTIMONY MIGHT INCRIMINATE HIM UNDER
FEDERAL LAW.  THE COURT UPHELD HIS COMMITMENT FOR CONTEMPT OVER HIS
CLAIM THAT THE IMMUNITY GRANTED BY THE STATE STATUTE WAS NOT "BROAD
ENOUGH," ID., AT 380, AND THAT HIS IMPRISONMENT THEREFORE VIOLATED THE
FOURTEENTH AMENDMENT.  THE COURT SAID: 

"WE THINK THE LEGAL IMMUNITY IS IN REGARD TO A PROSECUTION IN THE
SAME JURISDICTION, AND WHEN THAT IS FULLY GIVEN IT IS ENOUGH."  ID., AT
382. 

THE PRESENT MAJORITY CHARACTERIZES THIS STATEMENT AS "CRYPTIC
DICTUM," ANTE, P. 65.  BUT, I SUBMIT, THERE IS NOTHING CRYPTIC ABOUT
IT.  NOR IS IT DICTUM.  THE COURT ASSUMED FOR PURPOSES OF THAT CASE
THAT THE FOURTEENTH AMENDMENT REQUIRED THAT A STATE STATUTE "GIVE
SUFFICIENT IMMUNITY FROM PROSECUTION OR PUNISHMENT," ID., AT 380, AND
IT IS EVIDENT FROM THE OPINION THAT THE COURT REGARDED THE REMOTENESS
OF A DANGER OF PROSECUTION IN THE COURTS OF ANOTHER JURISDICTION,
INCLUDING THE FEDERAL COURTS, AS A BASIS FOR HOLDING GENERALLY, AND NOT
MERELY ON THE FACTS OF THE CASE BEFORE IT, THAT A STATE IMMUNITY
STATUTE NEED NOT PROTECT AGAINST SUCH DANGER.  SEE ID., AT 381-382. 

THE NEXT CASE IS HALE V. HENKEL, 201 U.S. 43, DECIDED ONE YEAR LATER,
SHORTLY AFTER BALLMANN.  THE COURT THERE REJECTED THE APPELLANT'S
ARGUMENT THAT THE FEDERAL IMMUNITY STATUTE TO BE VALID HAD TO CONFER
IMMUNITY FROM PUNISHMENT UNDER STATE LAW.  IT SAID: 

"THE FURTHER SUGGESTION THAT THE STATUTE OFFERS NO IMMUNITY FROM
PROSECUTION IN THE STATE COURTS WAS ALSO FULLY CONSIDERED IN BROWN V.
WALKER AND HELD TO BE NO ANSWER.  THE CONVERSE OF THIS WAS ALSO DECIDED
IN JACK V. KANSAS, 199 U.S. 372, NAMELY, THAT THE FACT THAT AN IMMUNITY
GRANTED TO A WITNESS UNDER A STATE STATUTE WOULD NOT PREVENT A
PROSECUTION OF SUCH WITNESS FOR A VIOLATION OF A FEDERAL STATUTE, DID
NOT INVALIDATE SUCH STATUTE UNDER THE FOURTEENTH AMENDMENT.  IT WAS
HELD BOTH BY THIS COURT AND BY THE SUPREME COURT OF KANSAS THAT THE
POSSIBILITY THAT INFORMATION GIVEN BY THE WITNESS MIGHT BE USED UNDER
THE FEDERAL ACT DID NOT OPERATE AS A REASON FOR PERMITTING THE WITNESS
TO REFUSE TO ANSWER, AND THAT A DANGER SO UNSUBSTANTIAL AND REMOTE DID
NOT IMPAIR THE LEGAL IMMUNITY.  INDEED, IF THE ARGUMENT WERE A SOUND
ONE IT MIGHT BE CARRIED STILL FURTHER AND HELD TO APPLY NOT ONLY TO
STATE PROSECUTIONS WITHIN THE SAME JURISDICTION, BUT TO PROSECUTIONS
UNDER THE CRIMINAL LAWS OF OTHER STATES TO WHICH THE WITNESS MIGHT HAVE
SUBJECTED HIMSELF.  THE QUESTION HAS BEEN FULLY CONSIDERED IN ENGLAND,
AND THE CONCLUSION REACHED BY THE COURTS OF THAT COUNTRY THAT THE ONLY
DANGER TO BE CONSIDERED IS ONE ARISING WITHIN THE SAME JURISDICTION AND
UNDER THE SAME SOVEREIGNTY  ...  ."  201 U.S., AT 68-69.  (FN4) 

IN VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273 U.S. 103, WHICH DID
NOT INVOLVE AN IMMUNITY STATUTE, THE COURT FOUND IT UNNECEESARY TO
CONSIDER THE QUESTION, EXTENSIVELY ARGUED BY THE PARTIES, WHETHER "THE
FIFTH AMENDMENT GUARANTEES IMMUNITY FROM SELF-INCRIMINATION UNDER STATE
STATUTES  ... ," ID., AT 113; THE COURT INDICATED THAT IT DID NOT
NECESSARILY REGARD HALE AND BROWN, SUPRA, AS CONCLUSIVE OF THAT
QUESTION, IBID.  CF. UNITED STATES V. MURDOCK, 290 U.S. 389, 396.  ANY
DOUBTS ON THIS SCORE, HOWEVER, WERE SETTLED IN 1931, IN UNITED STATES
V. MURDOCK, 284 U.S. 141.  THE COURT THERE HELD UNMISTAKABLY THAT AN
INDIVIDUAL COULD NOT AVOID TESTIFYING IN FEDERAL PROCEEDINGS ON THE
GROUND THAT HIS TESTIMONY MIGHT INCRIMINATE HIM UNDER STATE LAW. 

"THIS COURT HAS HELD THAT IMMUNITY AGAINST STATE PROSECUTION IS NOT
ESSENTIAL TO THE VALIDITY OF FEDERAL STATUTES DECLARING THAT A WITNESS
SHALL NOT BE EXCUSED FROM GIVING EVIDENCE ON THE GROUND THAT IT WILL
INCRIMINATE HIM, AND ALSO THAT THE LACK OF STATE POWER TO GIVE
WITNESSES PROTECTION AGAINST FEDERAL PROSECUTION DOES NOT DEFEAT A
STATE IMMUNITY STATUTE.  THE PRINCIPLE ESTABLISHED IS THAT FULL AND
COMPLETE IMMUNITY AGAINST PROSECUTION BY THE GOVERNMENT COMPELLING THE
WITNESS TO ANSWER IS EQUIVALENT TO THE PROTECTION FURNISHED BY THE RULE
AGAINST COMPULSORY SELF-INCRIMINATION."   ID., AT 149. 

THE COURT HAS NOT UNTIL NOW DEVIATED FROM THAT DEFINITIVE RULING.  IN
LATER PROCEEDINGS IN THE MURDOCK CASE, THE COURT SAID IT WAS
"DEFINITELY SETTLED THAT ONE UNDER EXAMINATION IN A FEDERAL TRIBUNAL
COULD NOT REFUSE TO ANSWER ON ACCOUNT OF PROBABLE INCRIMINATION UNDER
STATE LAW."  290 U.S. 389,396.  THE COURT ADHERED TO THIS VIEW IN
FELDMAN, SUPRA, WHERE IT ESTABLISHED AN EQUIVALENT RULE ALLOWING THE
USE IN A FEDERAL COURT OF TESTIMONY GIVEN IN A STATE COURT.  THE
GENERAL PRINCIPLE WAS SAID TO BE ONE OF "SEPARATENESS IN THE OPERATION
OF STATE AND FEDERAL CRIMINAL LAWS AND STATE AND FEDERAL IMMUNITY
PROVISIONS."  322 U.S., AT 493-494.  (FN5) 

IN ADAMS V. MARYLAND, 347 U.S. 179, THE COURT HELD THAT A FEDERAL
IMMUNITY STATUTE,  (FN6)  THE LANGUAGE OF WHICH "COULD BE NO PLAINER,"
ID., AT 181, PROHIBITED THE USE IN A STATE CRIMINAL TRIAL OF TESTIMONY
GIVEN BEFORE A SENATE COMMITTEE.  QUITE OBVIOUSLY, THE REMARK IN ADAMS
THAT THE FIFTH AMENDMENT PROTECTS A WITNESS "FROM THE USE OF SELF
INCRIMINATING TESTIMONY HE IS COMPELLED TO GIVE OVER HIS OBJECTION,"
IBID., DOES NOT EVEN REMOTELY SUGGEST "THAT ANY TESTIMONY ELICITED
UNDER THREAT OF CONTEMPT BY A GOVERNMENT TO WHOM THE CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION IS APPLICABLE  ...  MAY NOT
CONSTITUTIONALLY BE ADMITTED INTO EVIDENCE AGAINST HIM IN ANY CRIMINAL
TRIAL CONDUCTED BY A GOVERNMENT TO WHOM THE PRIVILEGE IS ALSO
APPLICABLE," ANTE, P. 76. 

IN KNAPP V. SCHWEITZER, 357 U.S. 371, THE COURT AGAIN UPHELD THE
VALIDITY OF STATE IMMUNITY STATUTES AGAINST THE CHARGE THAT THEY DID
NOT, AS THEY COULD NOT, CONFER IMMUNITY FROM FEDERAL PROSECUTION.  THE
COURT ADHERED TO ITS POSITION IN KNAPP, SUPRA, IN 1959, IN MILLS V.
LOUISIANA, 360 U.S. 230. 

THIS, THEN, IS THE "HISTORY" MUSTERED BY THE COURT IN SUPPORT OF
OVERRULING THE SOUND CONSTITUTIONAL DOCTRINE LYING AT THE CORE OF
FELDMAN. 

                           II. 

PART I OF THIS OPINION SHOWS, I BELIEVE, THAT THE COURT'S ANALYSIS OF
PRIOR CASES HARDLY FURNISHES AN ADEQUATE BASIS FOR A NEW DEPARTURE IN
CONSTITUTIONAL LAW.  EVEN IF THE COURT'S ANALYSIS WERE SOUND, HOWEVER,
IT WOULD NOT SUPPORT REVERSAL OF THE FELDMAN RULE ON CONSTITUTIONAL
GROUNDS. 

IF THE COURT WERE CORRECT IN ASSERTING THAT THE "SEPARATE
SOVEREIGNTY" THEORY OF SELF-INCRIMINATION SHOULD BE DISCARDED, THAT
WOULD, AS THE COURT SAYS, LEAD TO THE CONCLUSION THAT "A STATE WITNESS
IS PROTECTED AGAINST INCRIMINATION UNDER FEDERAL AS WELL AS STATE LAW
AND A FEDERAL WITNESS AGAINST INCRIMINATION UNDER STATE AS WELL AS
FEDERAL LAW."  ANTE, P. 78.  HOWEVER, DEALING STRICTLY WITH THE
SITUATION PRESENTED BY THIS CASE, THAT CONCLUSION DOES NOT IN TURN LEAD
TO A CONSTITUTIONAL RULE THAT THE TESTIMONY OF A STATE WITNESS (OR
EVIDENCE TO WHICH HIS TESTIMONY LEADS) WHO IS COMPELLED TO TESTIFY IN
STATE PROCEEDINGS MAY NOT BE USED AGAINST HIM IN A FEDERAL
PROSECUTION.  PROTECTION WHICH THE DUE PROCESS CLAUSE AFFORDS AGAINST
THE STATES IS QUITE OBVIOUSLY NOT ANY BASIS FOR A CONSTITUTIONAL RULE
REGULATING THE CONDUCT OF FEDERAL AUTHORITIES IN FEDERAL PROCEEDINGS. 

THE COURT AVOIDS THIS PROBLEM BY MIXING TOGETHER THE FIFTH AMENDMENT
AND THE FOURTEENTH AND TALKING ABOUT "THE CONSTITUTIONAL PRIVILEGE
AGAINST SELF-INCRIMINATION," ANTE, PP. 77-78.  SUCH AN APPROACH, WHICH
DEALS WITH "CONSTITUTIONAL" RIGHTS AT LARGE, UNRELATED EITHER TO
PARTICULAR PROVISIONS OF THE CONSTITUTION OR TO RELEVANT DIFFERENCES
BETWEEN THE STATES AND THE FEDERAL GOVERNMENT WARNS OF THE DANGERS FOR
OUR FEDERALISM TO WHICH THE "INCORPORATION" THEORY OF THE FOURTEENTH
AMENDMENT LEADS.  SEE MY DISSENTING OPINION IN MALLOY V. HOGAN, ANTE,
P. 14. 

THE COURT'S REASONS FOR OVERRULING FELDMAN THUS REST ON AN ENTIRELY
NEW CONCEPTION OF THE FIFTH AMENDMENT, NAMELY THAT IT APPLIES TO
FEDERAL USE OF STATE-COMPELLED INCRIMINATING TESTIMONY.  THE OPINION,
HOWEVER, CONTAINS NOTHING AT ALL TO CONTRADICT THE TRADITIONAL, WELL
UNDERSTOOD CONCEPTION OF THE FIFTH AMENDMENT, TO WHICH, THEREFORE, I
CONTINUE TO ADHERE: 

"THE SOLE - ALTHOUGH DEEPLY VALUABLE - PURPOSE OF THE FIFTH AMENDMENT
PRIVILEGE AGAINST SELF-INCRIMINATION IS THE SECURITY OF THE INDIVIDUAL
AGAINST THE EXERTION OF THE POWER OF THE FEDERAL GOVERNMENT TO COMPEL
INCRIMINATING TESTIMONY WITH A VIEW TO ENABLING THAT SAME GOVERNMENT TO
CONVICT A MAN OUT OF HIS OWN MOUTH."  KNAPP V. SCHWEITZER, SUPRA, AT
380. 

IT IS NO SERVICE TO OUR CONSTITUTIONAL LIBERTIES TO ENCUMBER THE
PARTICULAR PROVISIONS WHICH SAFEGUARD THEM WITH A GLOSS FOR WHICH
NEITHER THE TEXT NOR HISTORY PROVIDES ANY SUPPORT. 

ACCORDINGLY, I CANNOT ACCEPT THE MAJORITY'S CONCLUSION THAT A RULE
PROHIBITING FEDERAL AUTHORITIES FROM USING IN AID OF A FEDERAL
PROSECUTION INCRIMINATING TESTIMONY COMPELLED IN STATE PROCEEDINGS IS
CONSTITUTIONALLY REQUIRED. 
III. 

I WOULD, HOWEVER, ADOPT SUCH A RULE IN THE EXERCISE OF OUR
SUPERVISORY POWER OVER THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE. 
SEE MCNABB V. UNITED STATES, 318 U.S. 322, 340-341.  THE RULE SEEMS TO
ME TO FOLLOW FROM THE COURT'S REJECTION, IN THE EXERCISE OF ITS
SUPERVISORY POWER, OF THE "SILVER PLATTER" DOCTRINE AS APPLIED TO THE
USE IN FEDERAL COURTS OF EVIDENCE UNCONSTITUTIONALLY SEIZED BY STATE
OFFICERS.  ELKINS V. UNITED STATES, 364 U.S. 206.    SINCE I REJECT THE
MAJORITY'S ARGUMENT THAT THE "SEPARATE SOVEREIGNTY" THEORY OF SELF
INCRIMINATION IS HISTORICALLY UNFOUNDED, I DO NOT BASE MY CONCLUSION ON
THE HOLDING IN MALLOY, ANTE, THAT DUE PROCESS PROHIBITS A STATE FROM
COMPELLING A WITNESS TO TESTIFY.  MY CONCLUSION IS BASED RATHER ON THE
GROUND THAT SUCH A RULE IS PROTECTIVE OF THE VALUES WHICH THE FEDERAL
PRIVILEGE AGAINST SELF-INCRIMINATION EXPRESSES, WITHOUT IN ANY WAY
INTERFERING WITH THE INDEPENDENT ACTION OF THE STATES AND THE FEDERAL
GOVERNMENT IN THEIR RESPECTIVE SPHERES.  INCREASING INTERACTION BETWEEN
THE STATE AND FEDERAL GOVERNMENTS SPEAKS STRONGLY AGAINST PERMITTING
FEDERAL OFFICIALS TO MAKE PROSECUTORIAL USE OF TESTIMONY WHICH A STATE
HAS COMPELLED WHEN THAT SAME TESTIMONY COULD NOT CONSTITUTIONALLY HAVE
BEEN COMPELLED BY THE FEDERAL GOVERNMENT AND THEN USED AGAINST THE
WITNESS.  PROHIBITING SUCH USE IN NO WAY LIMITS FEDERAL POWER TO
INVESTIGATE AND PROSECUTE FOR FEDERAL CRIME, WHICH POWER WILL BE AS
FULL AFTER A STATE HAS COMPLETED AN INVESTIGATION AS BEFORE.  (FN7)
THIS ADJUSTMENT BETWEEN STATE INVESTIGATIONS OF LOCAL CRIME AND FEDERAL
PROSECUTIONS FOR FEDERAL CRIME SEEMS PARTICULARLY DESIRABLE IN VIEW OF
THE INCREASING, PRODUCTIVE COOPERATION BETWEEN FEDERAL AND STATE
AUTHORITIES IN THE PREVENTION OF CRIME.  BY INSULATING
INTERGOVERNMENTAL COOPERATION FROM THE DANGER OF ANY ENCROACHMENT ON
THE FEDERAL PRIVILEGE AGAINST SELF-INCRIMINATION, SUCH A RULE IN THE
LONG RUN WILL PROBABLY MAKE JOINT PROGRAMS FOR CRIME PREVENTION MORE
EFFECTIVE.  (FN8) 

ON THIS BASIS, I CONCUR IN THE JUDGMENT OF THE COURT. 

FN1  THE ENGLISH RULE IS NOT CLEAR.  IN UNITED STATES OF AMERICA V.
MCRAE, L.R., 3 CH. APP. 79 (1867), THE CASE ON WHICH THE MAJORITY
PRIMARILY RELIES, THE UNITED STATES CAME INTO COURT AS A PARTY AND
SOUGHT TO ELICIT FROM THE DEFENDANT ANSWERS WHICH WOULD HAVE SUBJECTED
HIM TO A FORFEITURE OF PROPERTY UNDER THE LAWS OF THE UNITED STATES. 
UPHOLDING THE DEFENDANT'S REFUSAL TO ANSWER, THE LORD CHANCELLOR
POINTED OUT THAT THE "  ...  PLAINTIFFS CALLING FOR AN ANSWER ARE THE
SOVEREIGN POWER BY WHOSE AUTHORITY AND IN WHOSE NAME THE PROCEEDINGS
FOR THE FORFEITURE ARE INSTITUTED, AND WHO HAVE THE PROPERTY TO BE
FORFEITED WITHIN THEIR REACH."  ID., AT 85.  THAT CASE, IN WHICH ONE
SOVEREIGN, AS A PARTY IN A CIVIL PROCEEDING, ATTEMPTED TO USE THE
JUDICIAL PROCESS OF ANOTHER SOVEREIGN TO OBTAIN ANSWERS WHICH WOULD
SUBJECT THE WITNESS TO A FORFEITURE UNDER THE LAWS OF THE FORMER IS
CLEARLY DISTINGUISHABLE FROM THE PRESENT CASE. 

IN KING OF THE TWO SICILIES V. WILLCOX, 1 SIM.  (N.S.)  301, 61 ENG.
REP. 116 (1851), THE VICE-CHANCELLOR HAD SAID THAT "THE RULE OF
PROTECTION (AGAINST SELF-INCRIMINATION) IS CONFINED TO WHAT MAY TEND TO
SUBJECT A PARTY TO PENALTIES BY OUR OWN LAWS  ...  ."  1 SIM.  (N.S.),
AT 331, 61 ENG. REP., AT 128.  THE LORD CHANCELLOR SAID IN MCRAE,
SUPRA, THAT KING OF THE TWO SICILIES HAD BEEN "MOST CORRECTLY DECIDED,"
L.R., 3 CH. APP., AT 85, BUT THAT THE GENERAL RULE THERE LAID DOWN WAS
UNNECESSARILY BROAD.  HE DECLINED TO APPLY THE RULE IN MCRAE ON THE
GROUND THAT "THE PRESUMED IGNORANCE OF THE JUDGE AS TO FOREIGN LAW  ...
HAD BEEN COMPLETELY REMOVED BY THE ADMITTED STATEMENTS UPON THE
PLEADINGS, IN WHICH THE EXACT NATURE OF THE PENALTY OR FORFEITURE
INCURRED BY THE PARTY OBJECTING TO ANSWER IS PRECISELY STATED  ...  ,"
L.R., 3 CH. APP., AT 85, AND THE FURTHER GROUND, NOTED ABOVE, THAT THE
PROPERTY SUBJECT TO A FORFEITURE WAS "WITHIN THE POWER OF THE UNITED
STATES," ID., AT 87. 

THE OTHER TWO ENGLISH CASES WHICH THE MAJORITY CITES IN THIS
CONNECTION WERE DECIDED MORE THAN 100 YEARS EARLIER THAN KING OF THE
TWO SICILIES.  MOREOVER, BOTH CASES INVOLVED DISCLOSURES WHICH WOULD
HAVE BEEN INCRIMINATING UNDER A SEPARATE SYSTEM OF LAWS OPERATING
WITHIN THE SAME LEGISLATIVE SOVEREIGNTY.  EAST INDIA CO. V. CAMPBELL, 1
VES.  SEN.  246, 27 ENG. REP. 1010 (EX. 1749); BROWNSWORD V. EDWARDS, 2
VES.  SEN.  243, 28 ENG. REP. 157 (CH. 1750).  IN KING OF THE TWO
SICILIES, WHICH INVOLVED THE LAWS OF ANOTHER SOVEREIGN, THE VICE
CHANCELLOR OBSERVED THAT THERE WAS AN "ABSENCE OF ALL AUTHORITY ON THE
POINT" RAISED BEFORE HIM.  1 SIM.  (N.S.), AT 331, 61 ENG. REP., AT
128. 

THERE IS LITTLE AGREEMENT AMONG THE AUTHORITIES ON THE EFFECT OF
THESE CASES.  SEE GRANT, FEDERALISM, AND SELF INCRIMINATION:  COMMON
LAW AND BRITISH EMPIRE COMPARISONS, 5 U.C.L.A.L. REV. 1-8; 8 WIGMORE,
EVIDENCE (3D ED. 1940), SEC 2258, N. 3; KRONER, SELF INCRIMINATION:
THE EXTERNAL REACH OF THE PRIVILEGE, 60 COL. L. REV. 816, 820, N. 26;
MCNAUGHTON, SELF-INCRIMINATION UNDER FOREIGN LAW, 45 VA. L. REV. 1299,
1302. 

FN2  COMPARE MCNAUGHTON, SUPRA, NOTE 1, AT 1305-1306, WITH KRONER,
SUPRA, NOTE 1, AT 818.  SEE HUTCHESON V. UNITED STATES, 369 U.S. 599,
608, N. 13; FELDMAN V. UNITED STATES, SUPRA, AT 494. 

THAT THIS CASE HAS MEANT DIFFERENT THINGS TO DIFFERENT PEOPLE IS
EVIDENCED BY THE OPINION IN HALE V. HENKEL, 201 U.S. 43, IN WHICH THE
COURT DISTINGUISHED SALINE BANK, PRESUMABLY INADEQUATELY, ON THE GROUND
THAT IN IT "THE FEDERAL COURT WAS SIMPLY ADMINISTERING THE STATE LAW,
AND NO QUESTION AROSE AS TO A PROSECUTION UNDER ANOTHER JURISDICTION." 
201 U.S., AT 69. 

FN3  IN UNITED STATES V. MURDOCK, 290 U.S. 389, 396, THE COURT SAID
THAT THE QUESTION WHETHER "ONE UNDER EXAMINATION IN A FEDERAL TRIBUNAL
COULD  ...  REFUSE TO ANSWER ON ACCOUNT OF PROBABLE INCRIMINATION UNDER
STATE LAW" HAD BEEN "INVOLVED, BUT NOT DECIDED" IN BALLMANN. 

FN4  IN BROWN V. WALKER, 161 U.S. 591, ON WHICH THE COURT RELIED IN
HALE, THE COURT INTIMATED THAT A FEDERAL IMMUNITY STATUTE NEED NOT
PROTECT A WITNESS FROM "A BARE POSSIBILITY THAT BY HIS DISCLOSURE HE
MIGHT BE SUBJECTED TO THE CRIMINAL LAWS OF SOME OTHER SOVEREIGNTY." 
161 U.S., AT 608. 

IN JACK, SUPRA, THE COURT DESCRIBED BROWN AS FOLLOWS: 

"IN THE SUBSEQUENT CASE OF BROWN V. WALKER, 161 U.S. 591, THE STATUTE
THERE INVOLVED WAS HELD TO AFFORD COMPLETE IMMUNITY TO THE WITNESS, AND
HE WAS THEREFORE OBLIGED TO ANSWER THE QUESTIONS THAT WERE PUT TO HIM,
ALTHOUGH THEY MIGHT TEND TO INCRIMINATE HIM.  IN THAT CASE IT WAS
CONTENDED, ON THE PART OF THE WITNESS, THAT THE STATUTE DID NOT GRANT
HIM IMMUNITY AGAINST PROSECUTIONS IN THE STATE COURTS, ALTHOUGH IT
GRANTED HIM FULL IMMUNITY FROM PROSECUTION BY THE FEDERAL GOVERNMENT. 
THIS CONTENTION WAS HELD TO BE WITHOUT MERIT.  WHILE IT WAS ASSERTED
THAT THE LAW OF CONGRESS WAS SUPREME, AND THAT JUDGES AND COURTS IN
EVERY STATE WERE BOUND THEREBY, AND THAT THEREFORE THE STATUTE GRANTING
IMMUNITY WOULD PROBABLY OPERATE IN THE STATE AS WELL AS IN THE FEDERAL
COURTS, YET STILL, AND ASIDE FROM THAT VIEW, IT WAS SAID THAT WHILE
THERE MIGHT BE A BARE POSSIBILITY THAT A WITNESS MIGHT BE SUBJECTED TO
THE CRIMINAL LAWS OF SOME OTHER SOVEREIGNTY, IT WAS NOT A REAL AND
PROBABLE DANGER, BUT WAS SO IMPROBABLE THAT IT NEEDED NOT TO BE TAKEN
INTO ACCOUNT."  199 U.S., AT 381. 

BROWN IS CITED FOR THE PROPOSITION THAT "FULL AND COMPLETE IMMUNITY
AGAINST PROSECUTION BY THE GOVERNMENT COMPELLING THE WITNESS TO ANSWER
IS EQUIVALENT TO THE PROTECTION FURNISHED BY THE RULE AGAINST
COMPULSORY SELF-INCRIMINATION," IN UNITED STATES V. MURDOCK, 284 U.S.
141, 149.  AND SEE VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273 U.S.
103, 113. 

THE MAJORITY IS INCORRECT WHEN IT STATES, ANTE, P. 67, THAT THE COURT
IN HALE, RELYING ON KING OF THE TWO SICILIES, SUPRA, DISREGARDED A
"SETTLED ENGLISH RULE" CONTRARY TO ITS OWN CONCLUSION.  SEE NOTE 1,
SUPRA. 

FN5  THIS WAS THE PRINCIPLE UNDERLYING THE DECISION IN FELDMAN RATHER
THAN THE SO-CALLED "FELDMAN REASONING," ANTE, P. 74, WHICH, AS
DESCRIBED BY THE MAJORITY, CONSISTS OF PHRASES PLUCKED FROM SEPARATE
PARAGRAPHS APPEARING ON FOUR DIFFERENT PAGES OF THE REPORTED OPINION,
SEE FELDMAN, SUPRA, AT 489-492.  THE COURT REFERRED TO THE "SILVER
PLATTER" DOCTRINE ONLY TO ILLUSTRATE A RELATED PRINCIPLE THEN
APPLICABLE IN THE AREA OF SEARCH-AND-SEIZURE.  SEE ID., AT 492. 

THE MAJORITY IS, HOWEVER, CORRECT IN STATING THAT THE DECISION IN
ELKINS V. UNITED STATES, 364 U.S. 206, DISCARDING THE "SILVER PLATTER"
DOCTRINE HAS AN IMPORTANT BEARING ON THIS CASE.  SEE INFRA, P. 91. 

FN6  SEE ADAMS, SUPRA, AT 180, NOTE 1. 

FN7  SPECULATION THAT FEDERAL AGENTS MAY FIRST HAVE "GOTTEN WIND" OF
A FEDERAL CRIME BY A WITNESS' TESTIMONY IN STATE PROCEEDINGS WOULD NOT
BE A BASIS FOR BARRING FEDERAL PROSECUTION, UNAIDED BY THE STATE
TESTIMONY.  AS I UNDERSTAND THE RULE ANNOUNCED TODAY, ALBEIT RESTING ON
PREMISES WHICH I THINK ARE UNSOUND, IT IS A PROHIBITION AGAINST THE USE
OF STATE-COMPELLED INCRIMINATING EVIDENCE OR THE "FRUITS" DIRECTLY
ATTRIBUTABLE THERETO IN A FEDERAL PROSECUTION. 

FN8  THE QUESTION WHETHER FEDERALLY COMPELLED INCRIMINATING TESTIMONY
COULD BE USED IN A STATE PROSECUTION IS NOT INVOLVED IN THIS CASE AND
WOULD, OF COURSE, PRESENT WHOLLY DIFFERENT CONSIDERATIONS. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

THE COURT HOLDS THAT THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION IS NULLIFIED "WHEN A WITNESS 'CAN BE WHIPSAWED INTO
INCRIMINATING HIMSELF UNDER BOTH STATE AND FEDERAL LAW EVEN THOUGH' THE
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION IS APPLICABLE TO
EACH."  ANTE, P. 55.  WHETHER VIEWED AS AN EXERCISE OF THIS COURT'S
SUPERVISORY POWER OVER THE CONDUCT OF FEDERAL LAW ENFORCEMENT OFFICIALS
OR A CONSTITUTIONAL RULE NECESSARY FOR MEANINGFUL ENFORCEMENT OF THE
PRIVILEGE, THIS HOLDING REQUIRES THAT COMPELLED INCRIMINATING TESTIMONY
GIVEN IN A STATE PROCEEDING NOT BE USED IN ANY MANNER BY FEDERAL
OFFICIALS IN CONNECTION WITH A FEDERAL CRIMINAL PROSECUTION.  SINCE
THESE PETITIONERS DECLINED TO ANSWER IN THE BELIEF THAT THEIR VERY
TESTIMONY AS WELL AS EVIDENCE DERIVED FROM IT COULD BE USED BY FEDERAL
AUTHORITIES IN A CRIMINAL PROSECUTION AGAINST THEM, THEY SHOULD BE
AFFORDED AN OPPORTUNITY TO PURGE THEMSELVES OF THE CIVIL CONTEMPT
CONVICTIONS BY ANSWERING THE QUESTIONS.  CF. RALEY V. OHIO, 360 U.S.
423. 

IN REACHING ITS RESULT THE COURT DOES NOT ACCEPT THE FAR-REACHING AND
IN MY VIEW WHOLLY UNNECESSARY CONSTITUTIONAL PRINCIPLE THAT THE
PRIVILEGE REQUIRES NOT ONLY COMPLETE PROTECTION AGAINST ANY USE OF
COMPELLED TESTIMONY IN ANY MANNER IN OTHER JURISDICTIONS BUT ALSO
ABSOLUTE IMMUNITY IN THESE JURISDICTIONS FROM ANY PROSECUTION
PERTAINING TO ANY OF THE TESTIMONY GIVEN.  THE RULE WHICH THE COURT
DOES NOT ADOPT FINDS ONLY ILLUSORY SUPPORT IN A DICTUM OF THIS COURT
AND, AS I SHALL SHOW, AFFORDS NO MORE PROTECTION AGAINST COMPELLED
INCRIMINATION THAN DOES THE RULE FORBIDDING FEDERAL OFFICIALS ACCESS TO
STATEMENTS MADE IN EXCHANGE FOR A GRANT OF STATE IMMUNITY.  BUT SUCH A
RULE WOULD INVALIDATE THE IMMUNITY STATUTES OF THE 50 STATES SINCE THE
STATES ARE WITHOUT AUTHORITY TO CONFER IMMUNITY FROM FEDERAL
PROSECUTIONS, AND WOULD THEREBY CUT DEEPLY AND SIGNIFICANTLY INTO
TRADITIONAL AND IMPORTANT AREAS OF STATE AUTHORITY AND RESPONSIBILITY
IN OUR FEDERAL SYSTEM.  IT WOULD NOT ONLY REQUIRE WIDESPREAD FEDERAL
IMMUNIZATION FROM PROSECUTION IN FEDERAL INVESTIGATORY PROCEEDINGS OF
PERSONS WHO VIOLATE STATE CRIMINAL LAWS, REGARDLESS OF THE WISHES OR
NEEDS OF LOCAL LAW ENFORCEMENT OFFICIALS, BUT WOULD ALSO DENY THE
STATES THE POWER TO OBTAIN INFORMATION NECESSARY FOR STATE LAW
ENFORCEMENT AND STATE LEGISLATION.  THAT RULE, READ IN CONJUNCTION WITH
THE HOLDING IN MALLOY V. HOGAN, ANTE, P. 1, THAT AN ASSERTION OF THE
PRIVILEGE IS ALL BUT CONCLUSIVE, WOULD MEAN THAT TESTIMONY IN STATE
INVESTIGATORY PROCEEDINGS, AND IN TRIALS ALSO, IS ON A VOLUNTARY BASIS
ONLY.   THE FEDERAL GOVERNMENT WOULD BECOME THE ONLY LAW ENFORCEMENT
AGENCY WITH EFFECTIVE POWER TO COMPEL TESTIMONY IN EXCHANGE FOR
IMMUNITY FROM PROSECUTION UNDER FEDERAL AND STATE LAW.  THESE
CONSIDERATIONS WARRANT SOME ELABORATION. 

                                      I. 

AMONG THE NECESSARY AND MOST IMPORTANT OF THE POWERS OF THE STATES AS
WELL AS THE FEDERAL GOVERNMENT TO ASSURE THE EFFECTIVE FUNCTIONING OF
GOVERNMENT IN AN ORDERED SOCIETY IS THE BROAD POWER TO COMPEL RESIDENTS
TO TESTIFY IN COURT OR BEFORE GRAND JURIES OR AGENCIES.  SEE BLAIR V.
UNITED STATES, 250 U.S. 273.  (FN1)  SUCH TESTIMONY CONSTITUTES ONE OF
THE GOVERNMENT'S PRIMARY SOURCES OF INFORMATION.  THE PRIVILEGE AGAINST
SELF-INCRIMINATION, SAFEGUARDING A COMPLEX OF SIGNIFICANT VALUES,
REPRESENTS A BROAD EXCEPTION TO GOVERNMENTAL POWER TO COMPEL THE
TESTIMONY OF THE CITIZENRY.  THE PRIVILEGE CAN BE CLAIMED IN ANY
PROCEEDING, BE IT CRIMINAL OR CIVIL, ADMINISTRATIVE OR JUDICIAL,
INVESTIGATORY OR ADJUDICATORY, MCCARTHY V. ARNDSTEIN, 266 U.S. 34, 40;
UNITED STATES V. SALINE BANK, 1 PET. 100, AND IT PROTECTS ANY
DISCLOSURES WHICH THE WITNESS MAY REASONABLY APPREHEND COULD BE USED IN
A CRIMINAL PROSECUTION OR WHICH COULD LEAD TO OTHER EVIDENCE THAT MIGHT
BE SO USED.  MASON V. UNITED STATES, 244 U.S. 362; HOFFMAN V. UNITED
STATES, 341 U.S. 479.  BECAUSE OF THE IMPORTANCE OF TESTIMONY,
ESPECIALLY IN THE DISCOVERY OF CERTAIN CRIMES FOR WHICH EVIDENCE WOULD
NOT OTHERWISE BE AVAILABLE, AND THE BREADTH OF THE PRIVILEGE, CONGRESS
HAS ENACTED OVER 40 IMMUNITY STATUTES AND EVERY STATE, WITHOUT
EXCEPTION, HAS ONE OR MORE IMMUNITY ACTS PERTAINING TO CERTAIN OFFENSES
OR LEGISLATIVE INVESTIGATIONS.  (FN2)  SUCH STATUTES HAVE FOR MORE THAN
A CENTURY BEEN RESORTED TO FOR THE INVESTIGATION OF MANY OFFENSES,
CHIEFLY THOSE WHOSE PROOF AND PUNISHMENT WERE OTHERWISE IMPRACTICABLE,
SUCH AS POLITICAL BRIBERY, EXTORTION, GAMBLING, CONSUMER FRAUDS, LIQUOR
VIOLATIONS, COMMERCIAL LARCENY, AND VARIOUS FORMS OF RACKETEERING. 
THIS COURT, IN DEALING WITH FEDERAL IMMUNITY ACTS, HAS ON NUMEROUS
OCCASIONS CHARACTERIZED SUCH STATUTES AS ABSOLUTELY ESSENTIAL TO THE
ENFORCEMENT OF VARIOUS FEDERAL REGULATORY ACTS.  IN BROWN V. WALKER,
161 U.S. 591, THE CASE IN WHICH THE COURT FIRST UPHELD A CONGRESSIONAL
IMMUNITY ACT OVER OBJECTION THAT THE WITNESS' RIGHT TO REMAIN SILENT
WAS INVIOLATE, THE COURT SAID:  "IF WITNESSES STANDING IN BROWN'S
POSITION WERE AT LIBERTY TO SET UP AN IMMUNITY FROM TESTIFYING, THE
ENFORCEMENT OF THE INTERSTATE COMMERCE LAW OR OTHER ANALOGOUS ACTS,
WHEREIN IT IS FOR THE INTEREST OF BOTH PARTIES TO CONCEAL THEIR
MISDOINGS, WOULD BECOME IMPOSSIBLE."  161 U.S. 591, AT 610.  AGAIN IN
HALE V. HENKEL, 201 U.S. 43, THE COURT NOTED THE HIGHLY SIGNIFICANT
ROLE PLAYED BY IMMUNITY ACTS IN THE ENFORCEMENT OF FEDERAL
LEGISLATION: 

"AS THE COMBINATION OR CONSPIRACIES PROVIDED AGAINST BY THE SHERMAN
ANTI TRUST ACT CAN ORDINARILY BE PROVED ONLY BY THE TESTIMONY OF
PARTIES THERETO, IN THE PERSON OF THEIR AGENTS OR EMPLOYES, THE
PRIVILEGE CLAIMED WOULD PRACTICALLY NULLIFY THE WHOLE ACT OF CONGRESS. 
OF WHAT USE WOULD IT BE FOR THE LEGISLATURE TO DECLARE THESE
COMBINATIONS UNLAWFUL IF THE JUDICIAL POWER MAY CLOSE THE DOOR OF
ACCESS TO EVERY AVAILABLE SOURCE OF INFORMATION UPON THE SUBJECT?" 
ID., AT 70. 

AND ONLY RECENTLY THE COURT DECLARED THAT IMMUNITY STATUTES HAVE
"BECOME PART OF OUR CONSTITUTIONAL FABRIC  ...  INCLUDED '  ...  IN
VIRTUALLY ALL OF THE MAJOR REGULATORY ENACTMENTS OF THE FEDERAL
GOVERNMENT,'" AND "THE STATES  ...  HAVE PASSED NUMEROUS STATUTES
COMPELLING TESTIMONY IN EXCHANGE FOR IMMUNITY IN THE FORM EITHER OF
COMPLETE AMNESTY OR OF PROHIBITION OF THE USE OF THE COMPELLED
TESTIMONY."  ULLMAN V. UNITED STATES, 350 U.S. 422, 438. 

THESE STATE STATUTES PLAY AT LEAST AN EQUALLY IMPORTANT ROLE IN
COMPELLING TESTIMONY NECESSARY FOR ENFORCEMENT OF STATE CRIMINAL LAWS. 
AFTER ALL, THE STATES STILL BEAR PRIMARY RESPONSIBILITY IN THIS COUNTRY
FOR THE ADMINISTRATION OF THE CRIMINAL LAW; MOST CRIMES, PARTICULARLY
THOSE FOR WHICH IMMUNITY ACTS HAVE PROVED MOST USEFUL AND NECESSARY,
ARE MATTERS OF LOCAL CONCERN; FEDERAL PREEMPTION OF AREAS OF CRIME
CONTROL TRADITIONALLY RESERVED TO THE STATES HAS BEEN RELATIVELY
UNKNOWN AND THIS AREA HAS BEEN SAID TO BE AT THE CORE OF THE CONTINUING
VIABILITY OF THE STATES IN OUR FEDERAL SYSTEM.  SEE ABBATE V. UNITED
STATES, 359 U.S. 187, 195; SCREWS V. UNITED STATES, 325 U.S. 91, 109;
UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 553-554; UNITED STATES V. AH
HUNG, 243 F. 762 (D.C.E.D.N.Y.).  CF. 18 U.S.C. SEC 5001, 18 U.S.C. SEC
659.  (FN3) 

WHENEVER ACCESS TO IMPORTANT TESTIMONY IS BARRED BY POSSIBLE STATE
PROSECUTION, THE STATE CAN, AT ITS OPTION, REMOVE THE IMPEDIMENT BY A
GRANT OF IMMUNITY; BUT IF THE WITNESS IS FACED WITH PROSECUTION BY THE
FEDERAL GOVERNMENT, THE STATE IS WHOLLY POWERLESS TO EXTEND IMMUNITY
FROM PROSECUTION UNDER FEDERAL LAW IN ORDER TO COMPEL THE TESTIMONY. 
ALMOST INVARIABLY ANSWERS INCRIMINATING UNDER STATE LAW CAN BE CLAIMED
TO BE INCRIMINATING UNDER FEDERAL LAW.  GIVEN THE EXTENSIVE SWEEP OF A
HOST OF FEDERAL STATUTES, SUCH AS THE INCOME TAX LAWS, SECURITIES
REGULATION, LAWS REGULATING USE OF THE MAILS AND OTHER COMMUNICATION
MEDIA FOR AN ILLEGAL PURPOSE, AND REGULATING FRAUDULENT TRADE
PRACTICES, AND GIVEN THE VERY LIMITED DISCRETION, IF ANY, IN THE TRIAL
JUDGE TO SCRUTINIZE THE WITNESS' CLAIM OF PRIVILEGE, MALLOY V. HOGAN,
SUPRA, INVESTIGATIONS CONDUCTED BY THE STATE INTO MATTERS OF CORRUPTION
AND MISCONDUCT WILL OBVIOUSLY BE THWARTED IF IMMUNITY FROM PROSECUTION
UNDER FEDERAL LAW WAS A CONSTITUTIONALLY REQUIRED CONDITION TO
TESTIMONIAL COMPULSION IN STATE PROCEEDINGS.  WHEREVER THE WITNESS, FOR
REASONS KNOWN ONLY TO HIM, WISHED NOT TO RESPOND TO ORDERLY INQUIRY,
THE FLOW OF INFORMATION TO THE STATE WOULD BE WHOLLY IMPEDED.  EVERY
WITNESS WOULD BE FREE TO BLOCK VITALLY IMPORTANT STATE PROCEEDINGS. 

IT IS NOT WITHOUT SIGNIFICANCE THAT THERE WERE TWO OSTENSIBLY
INCONSISTENT LINES OF CASES IN THIS COURT REGARDING THE EXTERNAL REACH
OF THE PRIVILEGES IN RESPECT TO THE LAWS OF ANOTHER JURISDICTION.   IN
THE CASES INVOLVING REFUSALS TO ANSWER QUESTIONS IN A FEDERAL GRAND
JURY OR DISCOVERY PROCEEDINGS ON THE GROUND OF INCRIMINATION UNDER
STATE LAW, ABSENT ANY IMMUNITY STATUTE, THE COURT SUGGESTED THAT THE
FIFTH AMENDMENT PRIVILEGE PROTECTED SUCH ANSWERS, UNITED STATES V.
SALINE BANK, 1 PET. 100:  BALLMANN V. FAGIN, 200 U.S. 186, WHILE IN THE
CASES INVOLVING REFUSALS TO ANSWER AFTER IMMUNITY WAS CONFERRED, THE
COURT INDICATED THAT IMMUNITY IN REGARD TO A PROSECUTION IN THE
JURISDICTION CONDUCTING THE INQUIRY SATISFIED THE PRIVILEGE.  BROWN V.
WALKER, 161 U.S. 591; JACK V. KANSAS, 199 U.S. 372; HALE V. HENKEL, 201
U.S. 43.  CF. UNITED STATES V. MURDOCK, 284 U.S. 141.  THE DECISION IN
BALLMANN THAT A WITNESS IN A FEDERAL GRAND JURY PROCEEDING COULD NOT BE
COMPELLED TO MAKE DISCLOSURES INCRIMINATING UNDER VERY SIMILAR FEDERAL
AND STATE CRIMINAL STATUTES WAS ANNOUNCED BY MEMBERS OF THE SAME COURT
AND WITHIN A VERY SHORT TIME OF THE DECISIONS IN JACK AND HALE, HOLDING
THAT IMMUNITY UNDER THE LAWS OF ONE SOVEREIGN WAS SUFFICIENT.  THE
BASIS FOR THESE LATTER HOLDINGS, AS WELL AS KNAPP V. SCHWEITZER, 357
U.S. 371, UPHOLDING A STATE CONTEMPT CONVICTION FOR A REFUSAL TO ANSWER
AFTER A GRANT OF STATE IMMUNITY, WAS NOT A NIGGARDLY VIEW OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION BUT "THE HISTORIC DISTRIBUTION OF
POWER AS BETWEEN NATION AND STATES IN OUR FEDERAL SYSTEM."  357 U.S.
371, AT 375.  AS THE CONCURRING AND DISSENTING MEMBERS OF THE COURT IN
KNAPP POINTED OUT, THE DILEMMA POSED TO OUR FEDERAL SYSTEM BY FEDERALLY
INCRIMINATING TESTIMONY COMPELLED IN A STATE PROCEEDING WAS NOT REALLY
NECESSARY BUT FOR THE PRIOR DECISION IN FELDMAN V. UNITED STATES, 322
U.S. 487, WHICH UPHELD THE FEDERAL GOVERNMENT'S USE OF INCRIMINATORY
TESTIMONY COMPELLED IN A STATE PROCEEDING.  ALTHOUGH FELDMAN WAS
QUESTIONED, NO ONE SUGGESTED IN KNAPP THAT THE SOLUTION TO THE PROBLEM
LAY IN FORBIDDING THE STATE TO ASK QUESTIONS INCRIMINATING UNDER
FEDERAL LAW. 

TO ANSWER THAT THE UNDERLYING POLICY OF THE PRIVILEGE SUBORDINATES
THE LAW ENFORCEMENT FUNCTION TO THE PRIVILEGE OF AN INDIVIDUAL WILL NOT
DO.  FOR WHERE THERE IS ONLY ONE GOVERNMENT INVOLVED, BE IT STATE OR
FEDERAL, NOT ONLY IS THE DANGER OF PROSECUTION MORE IMMINENT AND INDEED
THE LIKELY PURPOSE OF THE INVESTIGATION TO FACILITATE PROSECUTION AND
CONVICTION, BUT THAT AUTHORITY HAS THE CHOICE OF EXCHANGING IMMUNITY
FOR THE NEEDED TESTIMONY.  TO TRANSFORM POSSIBLE FEDERAL PROSECUTION
INTO A SOURCE OF ABSOLUTE PROTECTED SILENCE ON THE PART OF A STATE
WITNESS WOULD LEAVE NO SUCH CHOICE TO THE STATES.  ONLY THE FEDERAL
GOVERNMENT WOULD RETAIN SUCH AN OPTION. 

NOR WILL IT DO TO SAY THAT THE CONGRESS COULD REINSTATE STATE POWER
BY AUTHORIZING STATE OFFICIALS TO CONFER ABSOLUTE IMMUNITY FROM FEDERAL
PROSECUTIONS.  CONGRESS HAS ESTABLISHED HIGHLY COMPLICATED PROCEDURES,
REQUIRING THE APPROVAL OF THE ATTORNEY GENERAL, BEFORE A LIMITED GROUP
OF FEDERAL OFFICIALS MAY GRANT IMMUNITY FROM FEDERAL PROSECUTIONS. 
E.G., 18 U.S.C. SEC 3486,  (FN4) 18 U.S.C. SEC 1406.  THE DECISION TO
GRANT IMMUNITY IS BASED UPON THE IMPORTANCE OF THE TESTIMONY TO FEDERAL
LAW ENFORCEMENT INTEREST, A MATTER WITHIN THE COMPETENCE OF FEDERAL
OFFICIALS TO ASSAY.  THESE PROCEDURES WOULD CREATE INSURMOUNTABLE
OBSTACLES IF THE REQUESTS FOR APPROVAL WERE TO COME FROM INNUMERABLE
LOCAL OFFICIALS OF THE 50 STATES.  OBVIOUSLY FEDERAL OFFICIALS COULD
NOT PROPERLY EVALUATE THE EXTENT OF THE STATE'S NEED FOR THE TESTIMONY
ON A CASE-BY-CASE BASIS.  FURTHER, THE SCOPE OF THE IMMUNITY CONFERRED
WHOLLY DEPENDS ON THE TESTIMONY GIVEN, A MATTER OF CONSIDERABLE
DIFFICULTY TO DETERMINE AFTER, NO LESS THAN BEFORE, THE QUESTION IS
ANSWERED, THE TIME WHEN FEDERAL APPROVAL WOULD BE NECESSARY, HEIKE V.
UNITED STATES, 227 U.S. 131; LUMBER PRODUCTS ASSN. V. UNITED STATES,
144 F.2D 546 (C.A. 9TH CIR.), AND A MATTER WHOSE DETERMINATION REQUIRES
INTIMATE FAMILIARITY WITH BOTH THE NATURE AND DETAILS OF THE
INVESTIGATION AND THE BACKGROUND OF THE WITNESS.  FINALLY, IT IS VERY
DOUBTFUL THAT CONGRESS WOULD, IF IT HAD THE POWER TO, AUTHORIZE ONE
STATE TO CONFER IMMUNITY ON PERSONS SUBJECT TO PROSECUTION UNDER THE
CRIMINAL LAWS OF ANOTHER STATE. 

                               II. 

NEITHER THE CONFLICT BETWEEN STATE AND FEDERAL INTERESTS NOR THE
CONSEQUENT ENTHRONEMENT OF FEDERAL AGENCIES AS THE ONLY LAW ENFORCEMENT
AUTHORITIES WITH EFFECTIVE POWER TO COMPEL TESTIMONY IS NECESSARY TO
GIVE FULL EFFECT TO A PRIVILEGE AGAINST SELF-INCRIMINATION WHOSE
EXTERNAL REACH EMBRACES FEDERAL AS WELL AS STATE LAW.  THE APPROACH
NEED NOT AND, IN LIGHT OF THE ABOVE CONSIDERATIONS, SHOULD NOT BE IN
TERMS OF THE STATE'S POWER TO COMPEL THE TESTIMONY RATHER THAN THE USE
TO WHICH SUCH TESTIMONY CAN BE PUT.  IT IS UNQUESTIONED THAT AN
IMMUNITY STATUTE, TO BE VALID, MUST BE COEXTENSIVE WITH THE PRIVILEGE
WHICH IT DISPLACES, BUT IT NEED NOT BE BROADER.  COUNSELMAN V.
HITCHCOCK, 142 U.S. 547; BROWN V. WALKER, 161 U.S. 591; HALE V. HENKEL,
201 U.S. 43.  IF THE COMPELLED INCRIMINATING TESTIMONY IN A STATE
PROCEEDING CANNOT BE PUT TO ANY USE WHATSOEVER BY FEDERAL OFFICIALS,
QUITE OBVIOUSLY THE WITNESS' PRIVILEGE AGAINST SELF-INCRIMINATION IS
NOT INFRINGED.  FOR THE PRIVILEGE DOES NOT CONVEY AN ABSOLUTE RIGHT TO
REMAIN SILENT.  IT PROTECTS A WITNESS FROM BEING COMPELLED TO FURNISH
EVIDENCE THAT COULD RESULT IN HIS BEING SUBJECTED TO A CRIMINAL
SANCTION, HOFFMAN V. UNITED STATES, 341 U.S. 479; MASON V. UNITED
STATES, 244 U.S. 362, IF, BUT ONLY IF, AFTER THE DISCLOSURE THE WITNESS
WILL BE IN GREATER DANGER OF PROSECUTION AND CONVICTION.  ROGERS V.
UNITED STATES, 340 U.S. 367; UNITED STATES V. GERNIE, 252 F.2D 664
(C.A.2D CIR.).  WHEN FEDERAL OFFICIALS ARE BARRED NOT ONLY FROM
INTRODUCING THE TESTIMONY INTO EVIDENCE IN A FEDERAL PROSECUTION BUT
ALSO FROM INTRODUCING ANY EVIDENCE DERIVED FROM SUCH TESTIMONY, THE
DISCLOSURE HAS IN NO WAY CONTRIBUTED TO THE DANGER OR LIKELIHOOD OF A
FEDERAL PROSECUTION.  THIS APPROACH SECURES THE PROTECTIONS OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION FOR ALL DEFENDANTS WITHOUT
IMPAIRING LOCAL LAW-ENFORCEMENT AND INVESTIGATORY ACTIVITIES.  IT, OF
COURSE, FORECLOSES THE USE OF STATE-COMPELLED TESTIMONY IN ANY MANNER
BY FEDERAL PROSECUTORS, BUT THE PRIVILEGE IN MY VIEW COMMANDS THAT THE
FEDERAL GOVERNMENT SHOULD NOT HAVE THE BENEFIT OF COMPELLED
INCRIMINATORY TESTIMONY.  BOTH THE FEDERAL GOVERNMENT AND THE WITNESS
ARE IN EXACTLY THE SAME POSITION AS IF THE WITNESS HAD REMAINED
SILENT.  (FN5)  AND STATE IMMUNITY STATUTES REMAIN CONSTITUTIONAL AND
STATE LAW ENFORCEMENT AGENCIES VIABLE. 

IT IS ARGUED THAT A RULE ONLY FORBIDDING USE OF COMPELLED TESTIMONY
DOES NOT AFFORD ABSOLUTE PROTECTION AGAINST THE POSSIBILITY OF A
FEDERAL PROSECUTION BASED IN PART ON THE COMPELLED TESTIMONY.  IT IS
SAID THAT ABSENT ANY DELIBERATE ATTEMPT BY FEDERAL OFFICERS TO UTILIZE
THE TESTIMONY THE VERY IDENTIFICATION AND TESTIMONY OF THE WITNESS IN
THE STATE PROCEEDINGS, PERHAPS IN THE NEWSPAPERS, MAY INCREASE THE
POSSIBILITY OF A FEDERAL PROSECUTION AND ALTERNATIVELY THAT THE
DEFENDANT MAY NOT BE ABLE TO PROVE THAT EVIDENCE WAS INTENTIONALLY AND
UNLAWFULLY DERIVED FROM HIS COMPELLED TESTIMONY.  THESE ARE FANCIFUL
CONSIDERATIONS, HARDLY SUFFICIENT AS A BASIS FOR A CONSTITUTIONAL
ADJUDICATION WORKING A SUBSTANTIAL REALLOCATION OF POWER BETWEEN STATE
AND NATIONAL GOVERNMENTS. 

IN THE ABSENCE OF ANY MISCONDUCT OR COLLUSION BY FEDERAL OFFICERS,
WHATEVER INCREASE THERE IS, IF ANY, IN THE LIKELIHOOD OF FEDERAL
PROSECUTION FOLLOWING THE WITNESS' APPEARANCE BEFORE A STATE GRAND JURY
OR AGENCY RESULTS FROM THE INFERENCES DRAWN FROM THE INVOCATION OF THE
PRIVILEGE TO SPECIFIC QUESTIONS ON THE GROUND THAT THEY ARE
INCRIMINATING UNDER FEDERAL LAW AND NOT FROM THE FACT THE WITNESS HAS
TESTIFIED IN WHAT IS FREQUENTLY AN IN CAMERA PROCEEDING UNDER A GRANT
OF IMMUNITY.  WHETHER IN CAMERA OR NOT, THE TESTIMONY ITSELF IS HARDLY
REPORTED IN NEWSPAPERS AND THE TRANSCRIPTS AND RECORDS OF THE STATE
PROCEEDINGS ARE NOT PART OF THE FILES OF THE FEDERAL GOVERNMENT. 
ACCESS AND USE REQUIRE MISCONDUCT AND COLLUSION, A MATTER QUITE
SUSCEPTIBLE OF PROOF.  BUT THIS IS QUIBBLING, SINCE THE VERY FACT THAT
A WITNESS IS CALLED IN A STATE CRIME INVESTIGATION IS LIKELY TO BE
BASED UPON KNOWLEDGE, OR AT LEAST A SUSPICION BASED ON SOME
INFORMATION, THAT THE WITNESS IS IMPLICATED IN ILLEGAL ACTIVITIES,
WHICH KNOWLEDGE AND INFORMATION ARE PROBABLY AVAILABLE TO FEDERAL
AUTHORITIES. 

THE DANGER THAT A DEFENDANT MAY NOT BE ABLE TO ESTABLISH THAT OTHER
EVIDENCE WAS OBTAINED THROUGH THE UNLAWFUL USE BY FEDERAL OFFICIALS OF
INADMISSIBLE COMPELLED TESTIMONY IS INSUBSTANTIAL.  THE PRIVILEGE
PROTECTS AGAINST REAL DANGERS, NOT REMOTE AND SPECULATIVE
POSSIBILITIES.  BROWN V. WALKER, 161 U.S. 591, 599-600; HEIKE V. UNITED
STATES, 227 U.S. 131; MASON V. UNITED STATES, 244 U.S. 362.  FIRST, ONE
MIGHT JUST AS WELL ARGUE THAT THE CONSTITUTION REQUIRES ABSOLUTE
IMMUNITY FROM PROSECUTION WHEREVER THE GOVERNMENT HAS OBTAINED AN
INADMISSIBLE CONFESSION OR OTHER EVIDENCE THROUGH AN ILLEGAL SEARCH AND
SEIZURE, AN ILLEGAL WIRETAP, ILLEGAL DETENTION, AND COERCION.  A
COERCED CONFESSION IS AS REVEALING OF LEADS AS TESTIMONY GIVEN IN
EXCHANGE FOR IMMUNITY AND INDEED IS EXCLUDED IN PART BECAUSE IT IS
COMPELLED INCRIMINATION IN VIOLATION OF THE PRIVILEGE.  MALLOY V.
HOGAN, ANTE, PP. 7-8; SPANO V. NEW YORK, 360 U.S. 315; BRAM V. UNITED
STATES, 168 U.S. 532.  IN ALL THESE SITUATIONS A DEFENDANT MUST
ESTABLISH THAT TESTIMONY OR OTHER EVIDENCE IS A FRUIT OF THE UNLAWFULLY
OBTAINED EVIDENCE, NARDONE V. UNITED STATES, 308 U.S. 338; WILSON V.
UNITED STATES, 218 F.2D 754 (C.A. 10TH CIR.); LOTTO V. UNITED STATES,
157 F.2D 623 (C.A. 8TH CIR.), WHICH PROPOSITION WOULD SEEM A FORTIORI
TRUE WHERE THE GOVERNMENT HAS NOT ENGAGED IN ILLEGAL OR
UNCONSTITUTIONAL CONDUCT AND WHERE THE INADMISSIBLE TESTIMONY IS
OBTAINED BY A GOVERNMENT OTHER THAN THE ONE BRINGING THE PROSECUTION
AND FOR A PURPOSE UNRELATED TO THE PROSECUTION.  SECOND, THERE ARE NO
REAL PROOF PROBLEMS IN THIS SITUATION.  AS IN THE ANALOGOUS SEARCH AND
SEIZURE AND WIRETAP CASES - WHERE THE BURDEN OF PROOF IS ON THE
GOVERNMENT ONCE THE DEFENDANT ESTABLISHES THE UNLAWFUL SEARCH OR
WIRETAP, UNITED STATES V. COPLON, 185 F.2D 629 (C.A.2D CIR.); UNITED
STATES V. GOLDSTEIN, 120 F.2D 485, 488 (C.A.2D CIR.), AFF'D, 316 U.S.
114 - ONCE A DEFENDANT DEMONSTRATES THAT HE HAS TESTIFIED IN A STATE
PROCEEDING IN EXCHANGE FOR IMMUNITY TO MATTERS RELATED TO THE FEDERAL
PROSECUTION, THE GOVERNMENT CAN BE PUT TO SHOW THAT ITS EVIDENCE IS NOT
TAINTED BY ESTABLISHING THAT IT HAD AN INDEPENDENT, LEGITIMATE SOURCE
FOR THE DISPUTED EVIDENCE.  SINCE THE GOVERNMENT HAS THE RELEVANT
INFORMATION WITHIN ITS CONTROL, VALID PROSECUTIONS NEED NOT BE
SACRIFICED AND INFRINGEMENT OF THE PRIVILEGE THROUGH USE OF COMPELLED
TESTIMONY, DIRECT OR INDIRECT, NEED NOT BE TOLERATED.  IT IS CARRYING A
PREMISE OF PERJURY AND JUDICIAL INCOMPETENCE TO EXCESS TO BELIEVE THAT
THIS PROCEDURE POSES ANY HAZARDS TO THE RIGHTS OF AN ACCUSED.  THIRD,
GREATER REQUIREMENTS OR DIFFICULTIES OF PROOF BY A DEFENDANT INHERE IN
THE RULE OF ABSOLUTE IMMUNITY.  WHEN A WITNESS TESTIFIES UNDER THE
AUSPICES OF AN IMMUNITY ACT, THE IMMUNITY HE GETS DOES NOT SECURE HIM
FROM INDICTMENT OR CONVICTION.  HEIKE V. UNITED STATES, 217 U.S. 423. 
THE WITNESS MUST PLEAD AND PROVE, AS AN AFFIRMATIVE DEFENSE, THAT HE
HAS RECEIVED IMMUNITY AND THAT THE INSTANT PROSECUTION IS ON ACCOUNT OF
A MATTER TESTIFIED TO IN EXCHANGE FOR IMMUNITY, HEIKE V. UNITED STATES,
227 U.S. 131, WHICH MAY POSE CONSIDERABLE DIFFICULTIES WHERE THE
RELATIONSHIP BETWEEN THE TESTIMONY AND THE PROSECUTION IS NOT OBVIOUS
OR WHERE THE IMMUNITY IS ACQUIRED AS A RESULT OF TESTIMONY BEFORE A
GRAND JURY OR IN AN IN CAMERA ADMINISTRATIVE PROCEEDING.  SEE EDWARDS
V. UNITED STATES, 312 U.S. 473; 131 F.2D 198 (C.A. 10TH CIR.)
(RETRIAL), CERTIORARI DENIED, 317 U.S. 689; UNITED STATES V. LUMBER
PRODUCTS ASSN., 42 F. SUPP. 910 (D.C.N.D. CAL.), REV'D, SUB NOM. RYAN
V. UNITED STATES, 128 F.2D 551 (C.A. 9TH CIR.); LUMBER PRODUCTS ASSN.
V. UNITED STATES (PLEA OF IMMUNITY FINALLY UPHELD AFTER TRIAL), 144
F.2D 546 (C.A. 9TH CIR.).  CF. PANDOLFO V. BIDDLE, 8 F.2D 142 (C.A. 8TH
CIR.). 

COUNSELMAN V. HITCHCOCK, 142 U.S. 547, DOES NOT REQUIRE THAT ABSOLUTE
IMMUNITY FROM STATE PROSECUTION BE CONFERRED ON A FEDERAL WITNESS AND
THE COURT HAS DECLINED ON MANY OCCASIONS TO SO READ IT, THE LIMITATION
OF THE PRIVILEGE TO ONE SOVEREIGN RATIONALE ASIDE, BROWN V. WALKER, 161
U.S. 591; ADAMS V. MARYLAND, 347 U.S. 179; ULLMANN V. UNITED STATES,
350 U.S. 422; REINA V. UNITED STATES, 364 U.S. 507.  (FN6)  IT DOES NOT
THEREFORE REQUIRE THAT ABSOLUTE IMMUNITY FROM FEDERAL PROSECUTION BE
CONFERRED ON A STATE WITNESS.  COUNSELMAN, AN OFFICER OF AN INTERSTATE
RAILROAD, REFUSED TO REVEAL WHETHER HE ENGAGED IN DISCRIMINATORY RATE
PRACTICES, A CRIMINAL OFFENSE, UNDER THE INTERSTATE COMMERCE ACT,
BEFORE A FEDERAL GRAND JURY INVESTIGATING SPECIFIC VIOLATIONS OF THAT
ACT.  THE COURT ESTABLISHED FOR THE FIRST TIME THAT THE COVERAGE OF THE
PRIVILEGE EXTENDED TO NOT ONLY A CONFESSION OF THE OFFENSE BUT ALSO
DISCLOSURES LEADING TO DISCOVERY OF INCRIMINATING EVIDENCE, A MATTER OF
CONSIDERABLE DOUBT AT THE TIME.  SEE UNITED STATES V. BROWN, 1 SAW. 
531, 536, FED. CAS. NO. 14,671; UNITED STATES V. MCCARTHY, 18 F. 87, 89
(C.C.S.D.N.Y.); IN RE COUNSELMAN, 44 F. 268 (C.C.N.D. ILL.).  IT THEN
INVALIDATED THE FIRST IMMUNITY STATUTE TO COME BEFORE IT BECAUSE "THE
STATUTE COULD NOT, AND WOULD NOT, PREVENT THE USE OF HIS TESTIMONY TO
SEARCH OUT OTHER TESTIMONY TO BE USED IN EVIDENCE AGAINST HIM OR HIS
PROPERTY, IN A CRIMINAL PROCEEDING  ...  .  IT COULD NOT PREVENT THE
OBTAINING AND THE USE OF WITNESSES AND EVIDENCE WHICH SHOULD BE
ATTRIBUTABLE DIRECTLY TO THE TESTIMONY HE MIGHT GIVE UNDER COMPULSION,
AND ON WHICH HE MIGHT BE CONVICTED, WHEN OTHERWISE, AND IF HE HAD
REFUSED TO ANSWER, HE COULD NOT POSSIBLY HAVE BEEN CONVICTED."  142
U.S. 547, AT 564.  IN A DICTUM INDICATING THAT SOME IMMUNITY STATUTES
ARE VALID, THE COURT ADDED THAT "A STATUTORY ENACTMENT, TO BE VALID,
MUST AFFORD ABSOLUTE IMMUNITY AGAINST FUTURE PROSECUTION FOR THE
OFFENCE TO WHICH THE QUESTION RELATES."  ID., AT 586.  WHATEVER MAY BE
THE VALIDITY OF THIS DICTUM WHERE THE WITNESS IS BEING INVESTIGATED BY
A GRAND JURY FOR THE PURPOSE OF INDICTMENT FOR A PARTICULAR OFFENSE AND
WHERE THE GRAND JURY PROCEEDINGS ARE CONDUCTED BY THE SAME GOVERNMENT
ATTEMPTING TO OBTAIN A CONVICTION FOR THE OFFENSE - THE FACTS OF
COUNSELMAN - IT CLEARLY HAS NO VALIDITY, AND BY ITS OWN TERMS, NO
APPLICABILITY, WHERE THE INQUIRY DOES NOT CONCERN ANY FEDERAL OFFENSE,
NO LESS A PARTICULAR ONE, AND THE GOVERNMENT SEEKING THE TESTIMONY HAS
NO PURPOSE OR AUTHORITY TO PROSECUTE FOR FEDERAL CRIMES. 

THE CONSTITUTION DOES NOT REQUIRE THAT IMMUNITY GO SO FAR AS TO
PROTECT AGAINST ALL PROSECUTIONS TO WHICH THE TESTIMONY RELATES,
INCLUDING PROSECUTIONS OF ANOTHER GOVERNMENT, WHETHER OR NOT THERE IS
ANY CAUSAL CONNECTION BETWEEN THE DISCLOSURE AND THE PROSECUTION OR
EVIDENCE OFFERED AT TRIAL.  IN MY VIEW IT IS POSSIBLE FOR A FEDERAL
PROSECUTION TO BE BASED ON UNTAINTED EVIDENCE AFTER A GRANT OF FEDERAL
IMMUNITY IN EXCHANGE FOR TESTIMONY IN A FEDERAL CRIMINAL
INVESTIGATION.  LIKEWISE IT IS POSSIBLE THAT INFORMATION GATHERED BY A
STATE GOVERNMENT WHICH HAS AN IMPORTANT BUT WHOLLY SEPARATE PURPOSE IN
CONDUCTING THE INVESTIGATION AND NO INTEREST IN ANY FEDERAL PROSECUTION
WILL NOT IN ANY MANNER BE USED IN SUBSEQUENT FEDERAL PROCEEDINGS, AT
LEAST "WHILE THIS COURT SITS" TO REVIEW INVALID CONVICTIONS.  PANHANDLE
OIL CO. V. KNOX, 277 U.S. 218, AT 223 (HOLMES, J., DISSENTING).  IT IS
PRECISELY THIS POSSIBILITY OF A PROSECUTION BASED ON UNTAINTED EVIDENCE
THAT WE MUST RECOGNIZE.  FOR IF IT IS MEANINGFUL TO SAY THAT THE
FEDERAL GOVERNMENT MAY NOT USE COMPELLED TESTIMONY TO CONVICT A WITNESS
OF A FEDERAL CRIME, THEN, OF COURSE, THE CONSTITUTION PERMITS THE STATE
TO COMPEL SUCH TESTIMONY. 

"THE REAL EVIL AIMED AT BY THE FIFTH AMENDMENT'S FLAT PROHIBITION
AGAINST THE COMPULSION OF SELF-INCRIMINATORY TESTIMONY WAS THAT THOUGHT
TO INHERE IN USING A MAN'S COMPELLED TESTIMONY TO PUNISH HIM."  FELDMAN
V. UNITED STATES, 322 U.S. 487, 500 (BLACK, J., DISSENTING).  I BELIEVE
THE STATE MAY COMPEL TESTIMONY INCRIMINATING UNDER FEDERAL LAW, BUT THE
FEDERAL GOOVERNMENT MAY NOT USE SUCH TESTIMONY OR ITS FRUITS IN A
FEDERAL CRIMINAL PROCEEDING.  IMMUNITY MUST BE AS BROAD AS, BUT NOT
HARMFULLY AND WASTEFULLY BROADER THAN, THE PRIVILEGE AGAINST SELF
INCRIMINATION. 

FN1  THE POWER AND CORRESPONDING DUTY ARE RECOGNIZED IN THE SIXTH
AMENDMENT'S COMMANDS THAT DEFENDANTS BE CONFRONTED WITH WITNESSES AND
THAT THEY HAVE THE RIGHT TO SUBPOENA WITNESSES ON THEIR OWN BEHALF. 
THE DUTY WAS RECOGNIZED BY THE FIRST CONGRESS IN THE JUDICIARY ACT OF
1789, WHICH MADE PROVISION FOR THE COMPULSION OF ATTENDANCE OF
WITNESSES IN THE FEDERAL COURTS.  1 STAT. 73, 88 (1789).  SEE ALSO
LILIENTHAL, THE POWER OF GOVERNMENTAL AGENCIES TO COMPEL TESTIMONY, 39
HARV. L. REV. 694-695 (1926); 8 WIGMORE, EVIDENCE, SECS 2190-2193
(MCNAUGHTON REV. 1961). 

FN2  FOR A LISTING OF FEDERAL WITNESS IMMUNITY ACTS SEE COMMENT, 72
YALE L.J. 1568, 1611-1612; THE STATE ACTS MAY BE FOUND IN 8 WIGMORE,
EVIDENCE, SEC 2281, N. 11 (MCNAUGHTON REV., 1961). 

FN3  SEE ALSO RUTKIN V. UNITED STATES, 343 U.S. 130, 139-147 (BLACK,
J., DISSENTING). 

THE SENATE CRIME COMMITTEE STATED IN ITS THIRD INTERIM REPORT: 

"ANY PROGRAM FOR CONTROLLING ORGANIZED CRIME MUST TAKE INTO ACCOUNT
THE FUNDAMENTAL NATURE OF OUR GOVERNMENTAL SYSTEM.  THE ENFORCEMENT OF
THE CRIMINAL LAW IS PRIMARILY A STATE AND LOCAL RESPONSIBILITY."  S.
REP. NO. 307, CONG., 1ST SESS., 5 (1951). 

ATTORNEY GENERAL MITCHELL COMMENTED: 

"EXPERIENCE HAS SHOWN THAT WHEN CONGRESS ENACTS CRIMINAL LEGISLATION
OF THIS TYPE (DEALING WITH LOCAL CRIME) THE TENDENCY IS FOR THE STATE
AUTHORITIES TO CEASE THEIR EFFORTS TOWARD PUNISHING THE OFFENDERS AND
TO LEAVE IT TO THE FEDERAL AUTHORITIES AND THE FEDERAL COURTS.  THAT
HAS BEEN THE EXPERIENCE UNDER THE DYER ACT."  72 CONG. REC.  6214
(1930). 

NATIONAL ENACTMENTS WHICH TOUCH UPON THESE AREAS ARE NOT DESIGNED
DIRECTLY TO SUPPRESS ACTIVITIES ILLEGAL UNDER STATE LAW BUT TO ASSIST
STATE ENFORCEMENT AGENCIES IN THE ADMINISTRATION OF THEIR OWN
STATUTES.  SEE INT. REV. CODE OF 1954, SECS 4701-4707, 4711-4716
(NARCOTICS TAX); INT. REV. CODE OF 1954, SECS 4401-4404, 4411-4413,
4421-4423 (WAGERING TAX).  SEE GENERALLY, SCHWARTZ, FEDERAL CRIMINAL
JURISDICTION AND PROSECUTORS' DISCRETION, 13 LAW AND CONTEMP.  PROB. 
64, 83-86 (1948); COMMENT, 72 YALE L.J. 108, 140-142. 

FN4  THE DEBATES ON THE BILL LEADING TO THE STATUTE WHICH GRANTED A
CONGRESSIONAL COMMITTEE THE POWER TO CONFER IMMUNITY WELL REVEAL THE
CONCERN OVER IMMUNIZATION FROM FEDERAL PROSECUTION WITHOUT THE EXPRESS
APPROVAL OF THE ATTORNEY GENERAL IN EACH CASE.  99 CONG. REC. 4737
4740, 8342-8343; H.R. REP. NO. 2606, 83D CONG., 2D SESS.  (1954).  SEE
BROWNELL, IMMUNITY FROM PROSECUTION VERSUS PRIVILEGE AGAINST SELF
INCRIMINATION, 28 TUL.  L. REV. 1 (1953): 

"IF ANY MEASURE IS TO BE ENACTED PERMITTING THE GRANTING OF IMMUNITY
TO WITNESSES BEFORE EITHER HOUSE OF CONGRESS, OR ITS COMMITTEES, IT
SHOULD VEST THE ATTORNEY GENERAL, OR THE ATTORNEY GENERAL ACTING WITH
THE CONCURRENCE OF APPROPRIATE MEMBERS OF CONGRESS, WITH THE AUTHORITY
TO GRANT SUCH IMMUNITY, AND IF THE TESTIMONY IS SOUGHT FOR A COURT OR
GRAND JURY THAT THE ATTORNEY GENERAL ALONE BE AUTHORIZED TO GRANT THE
IMMUNITY."  (REMARKS OF ATTORNEY GENERAL BROWNWELL.)  ID., AT 19. 

CONGRESS ADOPTED THIS VIEW IN RECENT IMMUNITY STATUTES.  18 U.S.C.
SEC 3486; 18 U.S.C.  SEC 1406.  SEE ALSO COMMENT, 72 YALE L.J. 1568,
1598-1610 (1963). 

FN5  FELDMAN V. UNITED STATES, 322 U.S. 487, ALLOWED THE USE OF
TESTIMONY COMPELLED IN EXCHANGE FOR A GRANT OF STATE IMMUNITY TO SECURE
A CONVICTION FOR A FEDERAL OFFENSE.  I THINK THE COURT IN FELDMAN ERRED
IN ITS ASSUMPTION THAT AN EFFECTIVE EXCLUSIONARY RULE WOULD ALLOW THE
STATES TO DETERMINE ON THE BASIS OF LOCAL POLICY WHICH OFFENDERS SHOULD
BE IMMUNE FROM FEDERAL PROSECUTION.  THE FEDERAL GOVERNMENT CAN
PROSECUTE AND CONVICT PERSONS WHO HAVE RECEIVED IMMUNITY FOR TESTIMONY
IN A STATE INVESTIGATION.  BUT IT MUST DO SO WITHOUT THE ASSISTANCE OF
THE COMPELLED INCRIMINATORY TESTIMONY. 

THAT CASE ALSO RELIED ON THE DOCTRINE SINCE REPUDIATED IN ELKINS V.
UNITED STATES, 364 U.S. 206, THAT EVIDENCE ILLEGALLY SEIZED BY STATE
OFFICIALS IS ADMISSIBLE IN FEDERAL COURTS. 

FN6  AS MR. JUSTICE BLACK STATED FOR THE COURT IN ADAMS V. MARYLAND,
A CASE DEALING WITH THE USE OF FEDERALLY COMPELLED TESTIMONY IN A STATE
PROCEEDING "A WITNESS DOES NOT NEED ANY STATUTE TO PROTECT HIM FROM THE
USE OF SELF-INCRIMINATING TESTIMONY HE IS COMPELLED TO GIVE OVER HIS
OBJECTION.   THE FIFTH AMENDMENT TAKES CARE OF THAT WITHOUT A
STATUTE."  347 U.S., AT 181. 

NEITHER CONGRESS NOR THE STATES HAVE READ COUNSELMAN TO MEAN THAT THE
CONSTITUTION REQUIRES ABSOLUTE IMMUNITY FROM PROSECUTION.  THERE ARE
NUMEROUS STATUTES PROVIDING FOR IMMUNITY FROM USE, NOT PROSECUTION, IN
EXCHANGE FOR INCRIMINATORY TESTIMONY.  E.G., 30 STAT. 548 (1898), 11
U.S.C. SEC 25; 18 U.S.C SEC 1406; 49 U.S.C. SEC 9; 18 U.S.C.  SEC
3486.  ALA. CODE, TIT. 9, SEC 39; ALA. CODE, TIT. 29, SEC 171; ARIZ.
REV. STAT. ANN.  SEC 13-384; ARK. CONST., ART. III, SEC 9; CAL. CONST.,
ART. 4, SEC 35; COLO. REV. STAT., SEC 40-8-8; ID., SEC 49-17-8; CONN.
GEN. STAT. (1958 REV.), SEC 12-2 AND SEC 12-53; FLA. STAT. ANN., SEC
55.59 AND SEC 350.60; IDAHO CODE ANN., SEC 48-308 (SUPP. 1963); ILL.
ANN. STAT., C. 100 1/2, SEC 4; KY. REV. STAT., SEC 124.330; MICH. STAT.
ANN., SEC 7.411(17); N.J. REV. STAT., SEC 2A:93-9. 

THE EFFECT OF THE RULE PETITIONERS URGE WOULD BE TO HOLD THE ABOVE
AND NUMEROUS OTHER STATUTES BARRING USE BUT NOT PROSECUTION
UNCONSTITUTIONAL. 
..END :



AGUILAR V. TEXAS 378 U.S. 108 


NO. 548.  ARGUED MARCH 25-26, 1964.  - DECIDED JUNE 15, 1964.  - 172
TEX. CR. R. 629, 631, 362 S.W.2D 111, 112, REVERSED AND REMANDED. 


THE AFFIDAVIT GIVEN BY POLICE OFFICERS TO OBTAIN A STATE SEARCH
WARRANT STATED THAT: AFFIANTS HAVE RECEIVED RELIABLE INFORMATION FROM A
CREDIBLE PERSON AND DO BELIEVE THAT HEROIN  ...  AND OTHER NARCOTICS
...  ARE BEING KEPT AT THE ABOVE DESCRIBED PREMISES FOR THE PURPOSE OF
SALE AND USE CONTRARY TO THE PROVISIONS OF THE LAW."  THE AFFIDAVIT
PROVIDED NO FURTHER INFORMATION CONCERNING EITHER THE UNDISCLOSED
INFORMANT OR THE RELIABILITY OF THE INFORMATION.  THE WARRANT WAS
ISSUED, A SEARCH MADE, AND THE EVIDENCE OBTAINED WAS ADMITTED AT THE
TRIAL AT WHICH PETITIONER WAS FOUND GUILTY OF POSSESSING HEROIN. 
HELD: 

1.  THE STANDARD OF REASONABLENESS FOR OBTAINING A SEARCH WARRANT IS
THE SAME UNDER THE FOURTH AND THE FOURTEENTH AMENDMENTS.  KER V.
CALIFORNIA, 374 U.S. 23, FOLLOWED.  P. 110. 

2.  ALTHOUGH AN AFFIDAVIT SUPPORTING A SEARCH WARRANT MAY BE BASED ON
HEARSAY INFORMATION AND NEED NOT REFLECT THE DIRECT PERSONAL
OBSERVATIONS OF THE AFFIANT, THE MAGISTRATE MUST BE INFORMED OF SOME OF
THE UNDERLYING CIRCUMSTANCES RELIED ON BY THE PERSON PROVIDING THE
INFORMATION AND SOME OF THE UNDERLYING CIRCUMSTANCES FROM WHICH THE
AFFIANT CONCLUDED THAT THE INFORMANT, WHOSE IDENTITY WAS NOT DISCLOSED,
WAS CREDITABLE OR HIS INFORMATION RELIABLE.  GIORDENELLO V. UNITED
STATES, 357 U.S. 480, FOLLOWED.  PP.  110-115. 

AGUILAR V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS QUESTIONS CONCERNING THE CONSTITUTIONAL
REQUIREMENTS FOR OBTAINING A STATE SEARCH WARRANT. 

TWO HOUSTON POLICE OFFICERS APPLIED TO A LOCAL JUSTICE OF THE PEACE
FOR A WARRANT TO SEARCH FOR NARCOTICS IN PETITIONER'S HOME.  IN SUPPORT
OF THEIR APPLICATION, THE OFFICERS SUBMITTED AN AFFIDAVIT WHICH, IN
RELEVANT PART, RECITED THAT: 

"AFFIANTS HAVE RECEIVED RELIABLE INFORMATION FROM A CREDIBLE PERSON
AND DO BELIEVE THAT HEROIN, MARIJUANA, BARBITURATES AND OTHER NARCOTICS
AND NARCOTIC PARAPHERNALIA ARE BEING KEPT AT THE ABOVE DESCRIBED
PREMISES FOR THE PURPOSE OF SALE AND USE CONTRARY TO THE PROVISIONS OF
THE LAW."  (FN1) 

THE SEARCH WARRANT WAS ISSUED. 

IN EXECUTING THE WARRANT, THE LOCAL POLICE, ALONG WITH FEDERAL
OFFICERS, ANNOUNCED AT PETITIONER'S DOOR THAT THEY WERE POLICE WITH A
WARRANT.  UPON HEARING A COMMOTION WITHIN THE HOUSE, THE OFFICERS
FORCED THEIR WAY INTO THE HOUSE AND SEIZED PETITIONER IN THE ACT OF
ATTEMPTING TO DISPOSE OF A PACKET OF NARCOTICS. 

AT HIS TRIAL IN THE STATE COURT, PETITIONER, THROUGH HIS ATTORNEY,
OBJECTED TO THE INTRODUCTION OF EVIDENCE OBTAINED AS A RESULT OF THE
EXECUTION OF THE WARRANT.  THE OBJECTIONS WERE OVERRULED AND THE
EVIDENCE ADMITTED.  PETITIONER WAS CONVICTED OF ILLEGAL POSSESSION OF
HEROIN AND SENTENCED TO SERVE 20 YEARS IN THE STATE PENITENTIARY. 
(FN2)  ON APPEAL TO THE TEXAS COURT OF CRIMINAL APPEALS, THE CONVICTION
WAS AFFIRMED, 172 TEX. CR.  R. 629, 362 S.W.2D 111, AFFIRMANCE UPHELD
ON REHEARING, 172 TEX. CR. R. 631, 362 S.W.2D 112.  WE GRANTED A WRIT
OF CERTIORARI TO CONSIDER THE IMPORTANT CONSTITUTIONAL QUESTIONS
INVOLVED.  375 U.S. 812. 

IN KER V. CALIFORNIA, 374 U.S. 23, WE HELD THAT THE FOURTH
"AMENDMENT'S PROSCRIPTIONS ARE ENFORCED AGAINST THE STATES THROUGH THE
FOURTEENTH AMENDMENT," AND THAT "THE STANDARD OF REASONABLENESS IS THE
SAME UNDER THE FOURTH AND FOURTEENTH AMENDMENTS."  ID., AT 33. 
ALTHOUGH KER INVOLVED A SEARCH WITHOUT A WARRANT, THAT CASE MUST
CERTAINLY BE READ AS HOLDING THAT THE STANDARD FOR OBTAINING A SEARCH
WARRANT IS LIKEWISE "THE SAME UNDER THE FOURTH AND FOURTEENTH
AMENDMENTS." 

AN EVALUATION OF THE CONSTITUTIONALITY OF A SEARCH WARRANT SHOULD
BEGIN WITH THE RULE THAT "THE INFORMED AND DELIBERATE DETERMINATIONS OF
MAGISTRATES EMPOWERED TO ISSUE WARRANTS  ...  ARE TO BE PREFERRED OVER
THE HURRIED ACTION OF OFFICERS  ...  WHO MAY HAPPEN TO MAKE ARRESTS." 
UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 464.  THE REASONS FOR THIS
RULE GO TO THE FOUNDATIONS OF THE FOURTH AMENDMENT.  A CONTRARY RULE
"THAT EVIDENCE SUFFICIENT TO SUPPORT A MAGISTRATE'S DISINTERESTED
DETERMINATION TO ISSUE A SEARCH WARRANT WILL JUSTIFY THE OFFICERS IN
MAKING A SEARCH WITHOUT A WARRANT WOULD REDUCE THE AMENDMENT TO A
NULLITY AND LEAVE THE PEOPLE'S HOMES SECURE ONLY IN THE DISCRETION OF
POLICE OFFICERS."  JOHNSON V. UNITED STATES, 333 U.S. 10, 14.  UNDER
SUCH A RULE "RESORT TO WARRANTS WOULD ULTIMATELY BE DISCOURAGED." 
JONES V. UNITED STATES, 362 U.S. 257, 270.  THUS, WHEN A SEARCH IS
BASED UPON A MAGISTRATE'S, RATHER THAN A POLICE OFFICER'S,
DETERMINATION OF PROBABLE CAUSE, THE REVIEWING COURTS WILL ACCEPT
EVIDENCE OF A LESS "JUDICIALLY COMPETENT OR PERSUASIVE CHARACTER THAN
WOULD HAVE JUSTIFIED AN OFFICER IN ACTING ON HIS OWN WITHOUT A
WARRANT," IBID., AND WILL SUSTAIN THE JUDICIAL DETERMINATION SO LONG AS
"THERE WAS SUBSTANTIAL BASIS FOR THE MAGISTRATE TO CONCLUDE THAT
NARCOTICS WERE PROBABLY PRESENT  ...  ."  ID., AT 271.  AS SO WELL
STATED BY MR. JUSTICE JACKSON: 

"THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT GRASPED BY
ZEALOUS OFFICERS, IS NOT THAT IT DENIES LAW ENFORCEMENT THE SUPPORT OF
THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM EVIDENCE.  ITS
PROTECTION CONSISTS IN REQUIRING THAT THOSE INFERENCES BE DRAWN BY A
NEUTRAL AND DETACHED MAGISTRATE INSTEAD OF BEING JUDGED BY THE OFFICER
ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING OUT CRIME." 
JOHNSON V. UNITED STATES, SUPRA, AT 13-14. 

ALTHOUGH THE REVIEWING COURT WILL PAY SUBSTANTIAL DEFERENCE TO
JUDICIAL DETERMINATIONS OF PROBABLE CAUSE, THE COURT MUST STILL INSIST
THAT THE MAGISTRATE PERFORM HIS "NEUTRAL AND DETACHED" FUNCTION AND NOT
SERVE MERELY AS A RUBBER STAMP FOR THE POLICE. 

IN NATHANSON V. UNITED STATES, 290 U.S. 41, A WARRANT WAS ISSUED UPON
THE SWORN ALLEGATION THAT THE AFFIANT "HAS CAUSE TO SUSPECT AND DOES
BELIEVE" THAT CERTAIN MERCHANDISE WAS IN A SPECIFIED LOCATION.  ID., AT
44.  THE COURT, NOTING THAT THE AFFIDAVIT "WENT UPON A MERE AFFIRMATION
OF SUSPICION AND BELIEF WITHOUT ANY STATEMENT OF ADEQUATE SUPPORTING
FACTS," ID., AT 46, ANNOUNCED THE FOLLOWING RULE: 

"UNDER THE FOURTH AMENDMENT, AN OFFICER MAY NOT PROPERLY ISSUE A
WARRANT TO SEARCH A PRIVATE DWELLING UNLESS HE CAN FIND PROBABLE CAUSE
THEREFOR FROM FACTS OR CIRCUMSTANCES PRESENTED TO HIM UNDER OATH OR
AFFIRMATION.  MERE AFFIRMANCE OF BELIEF OR SUSPICION IS NOT ENOUGH." 
ID., AT 47. 

THE COURT, IN GIORDENELLO V. UNITED STATES, 357 U.S. 480, APPLIED
THIS RULE TO AN AFFIDAVIT SIMILAR TO THAT RELIED UPON HERE.  (FN3)
AFFIANT IN THAT CASE SWORE THAT PETITIONER "DID RECEIVE, CONCEAL, ETC.,
NARCOTIC DRUGS  ...  WITH KNOWLEDGE OF UNLAWFUL IMPORTATION  ...  ." 
ID., AT 481.  THE COURT ANNOUNCED THE GUIDING PRINCIPLES TO BE: 

"THAT THE INFERENCES FROM THE FACTS WHICH LEAD TO THE COMPLAINT 'MUST
BE DRAWN BY A NEUTRAL AND DETACHED MAGISTRATE INSTEAD OF BEING JUDGED
BY THE OFFICER ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING
OUT CRIME.'  JOHNSON V. UNITED STATES, 333 U.S. 10, 14.  THE PURPOSE OF
THE COMPLAINT, THEN, IS TO ENABLE THE APPROPRIATE MAGISTRATE  ...  TO
DETERMINE WHETHER THE 'PROBABLE CAUSE' REQUIRED TO SUPPORT A WARRANT
EXISTS.  THE COMMISSIONER MUST JUDGE FOR HIMSELF THE PERSUASIVENESS OF
THE FACTS RELIED ON BY A COMPLAINING OFFICER TO SHOW PROBABLE CAUSE. 
HE SHOULD NOT ACCEPT WITHOUT QUESTION THE COMPLAINANT'S MERE CONCLUSION
...  ."  357 U.S., AT 486. 

THE COURT, APPLYING THESE PRINCIPLES TO THE COMPLAINT IN THAT CASE,
STATED THAT: 

"IT IS CLEAR THAT IT DOES NOT PASS MUSTER BECAUSE IT DOES NOT PROVIDE
ANY BASIS FOR THE COMMISSIONER'S DETERMINATION  ...  THAT PROBABLE
CAUSE EXISTED.  THE COMPLAINT CONTAINS NO AFFIRMATIVE ALLEGATION THAT
THE AFFIANT SPOKE WITH PERSONAL KNOWLEDGE OF THE MATTERS CONTAINED
THEREIN; IT DOES NOT INDICATE ANY SOURCES FOR THE COMPLAINANT'S BELIEF;
AND IT DOES NOT SET FORTH ANY OTHER SUFFICIENT BASIS UPON WHICH A
FINDING OF PROBABLE CAUSE COULD BE MADE."  IBID. 

THE VICE IN THE PRESENT AFFIDAVIT IS AT LEAST AS GREAT AS IN
NATHANSON AND GIORDENELLO.  HERE THE "MERE CONCLUSION" THAT PETITIONER
POSSESSED NARCOTICS WAS NOT EVEN THAT OF THE AFFIANT HIMSELF; IT WAS
THAT OF AN UNIDENTIFIED INFORMANT.  THE AFFIDAVIT HERE NOT ONLY
"CONTAINS NO AFFIRMATIVE ALLEGATION THAT THE AFFIANT SPOKE WITH
PERSONAL KNOWLEDGE OF THE MATTERS CONTAINED THEREIN," IT DOES NOT EVEN
CONTAIN AN "AFFIRMATIVE ALLEGATION" THAT THE AFFIANT'S UNIDENTIFIED
SOURCE "SPOKE WITH PERSONAL KNOWLEDGE."  FOR ALL THAT APPEARS, THE
SOURCE HERE MERELY SUSPECTED, BELIEVED OR CONCLUDED THAT THERE WERE
NARCOTICS IN PETITIONER'S POSSESSION.  (FN4)  THE MAGISTRATE HERE
CERTAINLY COULD NOT "JUDGE FOR HIMSELF THE PERSUASIVENESS OF THE FACTS
RELIED ON  ...  TO SHOW PROBABLE CAUSE."  HE NECESSARILY ACCEPTED
"WITHOUT QUESTION" THE INFORMANT'S "SUSPICION," "BELIEF" OR "MERE
CONCLUSION." 

ALTHOUGH AN AFFIDAVIT MAY BE BASED ON HEARSAY INFORMATION AND NEED
NOT REFLECT THE DIRECT PERSONAL OBSERVATIONS OF THE AFFIANT, JONES V.
UNITED STATES, 362 U.S. 257, THE MAGISTRATE MUST BE INFORMED OF SOME OF
THE UNDERLYING CIRCUMSTANCES FROM WHICH THE INFORMANT CONCLUDED THAT
THE NARCOTICS WERE WHERE HE CLAIMED THEY WERE, AND SOME OF THE
UNDERLYING CIRCUMSTANCES FROM WHICH THE OFFICER CONCLUDED THAT THE
INFORMANT, WHOSE IDENTITY NEED NOT BE DISCLOSED, SEE RUGENDORF V.
UNITED STATES, 376 U.S. 528, WAS "CREDIBLE" OR HIS INFORMATION
"RELIABLE."  (FN5)  OTHERWISE, "THE INFERENCES FROM THE FACTS WHICH
LEAD TO THE COMPLAINT" WILL BE DRAWN NOT "BY A NEUTRAL AND DETACHED
MAGISTRATE," AS THE CONSTITUTION REQUIRES, BUT INSTEAD, BY A POLICE
OFFICER "ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING OUT
CRIME," GIORDENELLO V. UNITED STATES, SUPRA, AT 486; JOHNSON V. UNITED
STATES, SUPRA, AT 14, OR, AS IN THIS CASE, BY AN UNIDENTIFIED
INFORMANT. 

WE CONCLUDE, THEREFORE, THAT THE SEARCH WARRANT SHOULD NOT HAVE BEEN
ISSUED BECAUSE THE AFFIDAVIT DID NOT PROVIDE A SUFFICIENT BASIS FOR A
FINDING OF PROBABLE CAUSE AND THAT THE EVIDENCE OBTAINED AS A RESULT OF
THE SEARCH WARRANT WAS INADMISSIBLE IN PETITIONER'S TRIAL. 

THE JUDGMENT OF THE TEXAS COURT OF CRIMINAL APPEALS IS REVERSED AND
THE CASE REMANDED FOR PRECEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  THE RECORD DOES NOT REVEAL, NOR IS IT CLAIMED, THAT ANY OTHER
INFORMATION WAS BROUGHT TO THE ATTENTION OF THE JUSTICE OF THE PEACE. 
IT IS ELEMENTARY THAT IN PASSING ON THE VALIDITY OF A WARRANT, THE
REVIEWING COURT MAY CONSIDER ONLY INFORMATION BROUGHT TO THE
MAGISTRATE'S ATTENTION.  GIORDENELLO V. UNITED STATES, 357 U.S. 480,
486; 79 C.J.S. 872 (COLLECTING CASES).  IN GIORDENELLO, THE GOVERNMENT
POINTED OUT THAT THE OFFICER WHO OBTAINED THE WARRANT "HAD KEPT
PETITIONER UNDER SURVEILLANCE FOR ABOUT ONE MONTH PRIOR TO THE
ARREST."  THE COURT OF COURSE IGNORED THIS EVIDENCE, SINCE IT HAD NOT
BEEN BROUGHT TO THE MAGISTRATE'S ATTENTION.  THE FACT THAT THE POLICE
MAY HAVE KEPT PETITIONER'S HOUSE UNDER SURVEILLANCE IS THUS COMPLETELY
IRRELEVANT IN THIS CASE, FOR, IN APPLYING FOR THE WARRANT, THE POLICE
DID NOT MENTION ANY SURVEILLANCE.  MOREOVER, THERE IS NO EVIDENCE IN
THE RECORD THAT A SURVEILLANCE WAS ACTUALLY SET UP ON PETITIONER'S
HOUSE.  OFFICER STRICKLAND MERELY TESTIFIED THAT "WE WANTED TO SET UP
SURVEILLANCE ON THE HOUSE."  IF THE FACT AND RESULTS OF SUCH A
SURVEILLANCE HAD BEEN APPROPRIATELY PRESENTED TO THE MAGISTRATE, THIS
WOULD, OF COURSE, PRESENT AN ENTIRELY DIFFERENT CASE. 

FN2  PETITIONER WAS ALSO INDICTED ON CHARGES OF CONSPIRING TO VIOLATE
THE FEDERAL NARCOTICS LAW, ACT OF FEBRUARY 9, 1909, C. 100, 35 STAT.
614, SEC 2, AS AMENDED, 21 U.S.C. SEC 174; INTERNAL REVENUE CODE OF
1954, SEC 7237(B), AS AMENDED, 26 U.S.C. SEC 7237(B).  HE WAS FOUND NOT
GUILTY BY THE JURY.  HIS CODEFENDANTS WERE FOUND GUILTY AND THEIR
CONVICTIONS AFFIRMED ON APPEAL.  GARCIA V. UNITED STATES, 315 F.2D
679. 

FN3  IN GIORDENELLO, ALTHOUGH THIS COURT CONSTRUED THE REQUIREMENT OF
"PROBABLE CAUSE" CONTAINED IN RULE 4 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, IT DID SO "IN LIGHT OF THE CONSTITUTIONAL" REQUIREMENT OF
PROBABLE CAUSE WHICH THAT RULE IMPLEMENTS.  ID., AT 485.  THE CASE ALSO
INVOLVED AN ARREST WARRANT RATHER THAN A SEARCH WARRANT, BUT THE COURT
SAID:  "THE LANGUAGE OF THE FOURTH AMENDMENT, THAT '  ...  NO WARRANTS
SHALL ISSUE, BUT UPON PROBABLE CAUSE  ...  ' OF COURSE APPLIES TO
ARREST AS WELL AS SEARCH WARRANTS."  ID., AT 485-486.  SEE EX PARTE
BURFORD, 3 CRANCH 448; MCGRAIN V. DAUGHERTY, 273 U.S. 135, 154-157. 
THE PRINCIPLES ANNOUNCED IN GIORDENELLO DERIVED, THEREFORE, FROM THE
FOURTH AMENDMENT, AND NOT FROM OUR SUPERVISORY POWER.  COMPARE JENCKS
V. UNITED STATES, 353 U.S. 657.  ACCORDINGLY, UNDER KER V. CALIFORNIA,
374 U.S. 23, THEY MAY PROPERLY GUIDE OUR DETERMINATION OF "PROBABLE
CAUSE" UNDER THE FOURTEENTH AMENDMENT. 

FN4  TO APPROVE THIS AFFIDAVIT WOULD OPEN THE DOOR TO EASY
CIRCUMVENTION OF THE RULE ANNOUNCED IN NATHANSON AND GIORDENELLO.  A
POLICE OFFICER WHO ARRIVED AT THE "SUSPICION," "BELIEF" OR "MERE
CONCLUSION" THAT NARCOTICS WERE IN SOMEONE'S POSSESSION COULD NOT
OBTAIN A WARRANT.  BUT HE COULD CONVEY THIS CONCLUSION TO ANOTHER
POLICE OFFICER, WHO COULD THEN SECURE THE WARRANT BY SWEARING THAT HE
HAD "RECEIVED RELIABLE INFORMATION FROM A CREDIBLE PERSON" THAT THE
NARCOTICS WERE IN SOMEONE'S POSSESSION. 

FN5  SUCH AN AFFIDAVIT WAS SUSTAINED BY THIS COURT IN JONES V. UNITED
STATES, 362 U.S. 257.  THE AFFIDAVIT IN THAT CASE READS AS FOLLOWS: 

"AFFIDAVIT IN SUPPORT OF A U.S. COMMISSIONERS SEARCH WARRANT FOR
PREMISES 1436 MERIDIAN PLACE, N.W., WASHINGTON, D.C., APARTMENT 36,
INCLUDING WINDOW SPACES OF SAID APARTMENT.  OCCUPIED BY CECIL JONES AND
EARLINE RICHARDSON. 

"IN THE LATE AFTERNOON OF TUESDAY, AUGUST 20, 1957, I, DETECTIVE
THOMAS DIDONE, JR. RECEIVED INFORMATION THAT CECIL JONES AND EARLINE
RICHARDSON WERE INVOLVED IN THE ILLICIT NARCOTIC TRAFFIC AND THAT THEY
KEPT A READY SUPPLY OF HEROIN ON HAND IN THE ABOVE MENTIONED
APARTMENT.  THE SOURCE OF INFORMATION ALSO RELATES THAT THE TWO
AFOREMENTIONED PERSONS KEPT THESE SAME NARCOTICS EITHER ON THEIR
PERSON, UNDER A PILLOW, ON A DRESSER OR ON A WINDOW LEDGE IN SAID
APARTMENT.  THE SOURCE OF INFORMATION GOES ON TO RELATE THAT ON MANY
OCCASIONS THE SOURCE OF INFORMATION HAS GONE TO SAID APARTMENT AND
PURCHASED NARCOTIC DRUGS FROM THE ABOVE MENTIONED PERSONS AND THAT THE
NARCOTICS WERE SECRETED IN THE ABOVE MENTIONED PLACES.  THE LAST TIME
BEING AUGUST 20, 1957.    "BOTH THE AFOREMENTIONED PERSONS ARE FAMILIAR
TO THE UNDERSIGNED AND OTHER MEMBERS OF THE NARCOTIC SQUAD.  BOTH HAVE
ADMITTED TO THE USE OF NARCOTIC DRUGS AND DISPLAY NEEDLE MARKS AS
EVIDENCE OF SAME. 

"THIS SAME INFORMATION, REGARDING THE ILLICIT NARCOTIC TRAFFIC,
CONDUCTED BY CECIL JONES AND EARLINE RICHARDSON, HAS BEEN GIVEN TO THE
UNDERSIGNED AND TO OTHER OFFICERS OF THE NARCOTIC SQUAD BY OTHER
SOURCES OF INFORMATION. 

"BECAUSE THE SOURCE OF INFORMATION MENTIONED IN THE OPENING PARAGRAPH
HAS GIVEN INFORMATION TO THE UNDERSIGNED ON PREVIOUS OCCASION AND WHICH
WAS CORRECT, AND BECAUSE THIS SAME INFORMATION IS GIVEN BY OTHER
SOURCES DOES BELIEVE THAT THERE IS NOW ILLICIT NARCOTIC DRUGS BEING
SECRETED IN THE ABOVE APARTMENT BY CECIL JONES AND EARLINE RICHARDSON. 

"DET. THOMAS DIDONE, JR., NARCOTIC SQUAD, MPDC. 

"SUBSCRIBED AND SWORN TO BEFORE ME THIS 21 DAY OF AUGUST, 1957. 

"JAMES F. SPLAIN, U.S. COMMISSIONER, D.C."  ID., AT 267-268, N. 2. 

COMPARE, E.G., HERNANDEZ V. PEOPLE, - COLO. - , 385 P.2D 996, WHERE
THE SUPREME COURT OF COLORADO, ACCEPTING A CONFESSION OF ERROR BY THE
STATE ATTORNEY GENERAL, HELD THAT A SEARCH WARRANT SIMILAR TO THE ONE
HERE IN ISSUE VIOLATED THE FOURTH AMENDMENT.  THE COURT SAID: 

"BEFORE THE ISSUING MAGISTRATE CAN PROPERLY PERFORM HIS OFFICIAL
FUNCTION HE MUST BE APPRISED OF THE UNDERLYING FACTS AND CIRCUMSTANCES
WHICH SHOW THAT THERE IS PROBABLE CAUSE  ...  ."  ID., AT - , 385 P.2D,
AT 999. 

MR. JUSTICE HARLAN, CONCURRING. 

BUT FOR KER V. CALIFORNIA, 374 U.S. 23, I WOULD HAVE VOTED TO AFFIRM
THE JUDGMENT OF THE TEXAS COURT.  GIVEN KER, I CANNOT ESCAPE THE
CONCLUSION THAT TO DO SO WOULD TEND TO "RELAX FOURTH AMENDMENT
STANDARDS  ...  IN DEROGATION OF LAW ENFORCEMENT STANDARDS IN THE
FEDERAL SYSTEM  ...  " (MY CONCURRING OPINION IN KER, SUPRA, AT 45
46).  CONTRARY TO WHAT IS SUGGESTED IN THE DISSENTING OPINION OF MY
BROTHER CLARK IN THE PRESENT CASE (POST, P. 118, NOTE 1), THE STANDARDS
LAID DOWN IN GIORDENELLO V. UNITED STATES, 357 U.S. 480, DID IN MY VIEW
REFLECT CONSTITUTIONAL REQUIREMENTS.  BEING UNWILLING TO RELAX THOSE
STANDARDS FOR FEDERAL PROSECUTIONS, I CONCUR IN THE OPINION OF THE
COURT. 

MR JUSTICE CLARK, WHOM MR. JUSTICE BLACK AND MR JUSTICE STEWART JOIN,
DISSENTING. 

FIRST, IT IS WELL TO POINT OUT THE INFORMATION UPON WHICH THE SEARCH
WARRANT IN QUESTION WAS BASED:  ABOUT JANUARY 1, 1960, OFFICERS
STRICKLAND AND ROGERS FROM THE NARCOTICS DIVISION OF THE HOUSTON POLICE
DEPARTMENT RECEIVED RELIABLE INFORMATION FROM A CREDIBLE PERSON THAT
PETITIONER AGUILAR HAD HEROIN AND OTHER NARCOTIC DRUGS AND NARCOTIC
PARAPHERNALIA IN HIS POSSESSION AT HIS RESIDENCE, 509 PINCKNEY STREET,
HOUSTON, TEXAS; AFTER RECEIVING THIS INFORMATION THE OFFICERS, THE
RECORD INDICATES, KEPT THE PREMISES OF PETITIONER UNDER SURVEILLANCE
FOR ABOUT A WEEK. 

ON JANUARY 8, 1960, THE TWO OFFICERS APPLIED FOR A SEARCH WARRANT AND
EXECUTED AN AFFIDAVIT BEFORE A JUSTICE OF THE PEACE IN WHICH THEY
ALLEGED UNDER OATH THAT PETITIONER'S RESIDENCE AT 509 PINCKNEY STREET
"IS A PLACE WHERE WE EACH HAVE REASON TO BELIEVE AND DO BELIEVE THAT
AGUILAR  ...  HAS IN HIS POSSESSION THEREIN NARCOTIC DRUGS  ...  FOR
THE PURPOSE OF THE UNLAWFUL SALE THEREOF, AND WHERE SUCH NARCOTIC DRUGS
ARE UNLAWFULLY SOLD."  IN ADDITION AND IN SUPPORT OF THEIR BELIEF, THE
OFFICERS INCLUDED IN THE AFFIDAVIT THE FURTHER ALLEGATION THAT THEY
"HAVE RECEIVED RELIABLE INFORMATION FROM CREDIBLE PERSON AND DO BELIEVE
THAT HEROIN  ...  AND OTHER NARCOTICS AND NARCOTIC PARAPHERNALIA ARE
BEING KEPT AT  ...  PETITIONER'S PREMISES FOR THE PURPOSE OF SALE AND
USE CONTRARY TO THE PROVISIONS OF THE LAW." 

UPON EXECUTING THE WARRANT ISSUED ON THE STRENGTH OF THIS AFFIDAVIT,
THE OFFICERS KNOCKED ON THE DOOR OF AGUILAR'S HOUSE.  SOMEONE INSIDE
ASKED WHO WAS THERE AND THE OFFICERS REPLIED THAT THEY WERE POLICE AND
THAT THEY HAD A SEARCH WARRANT.  AT THIS THEY HEARD SOMEONE "SCUFFLE
AND START TO RUN INSIDE OF THE HOUSE."  THE OFFICERS ENTERED AND
PURSUED THE PETITIONER, WHO RAN INTO A BACK BATHROOM.  PETITIONER THREW
A PACKET OF HEROIN INTO THE COMMODE, BUT AN OFFICER RETRIEVED THE
PACKET BEFORE IT COULD BE FLUSHED DOWN THE DRAIN. 

                  I. 

AT TRIAL PETITIONER OBJECTED TO THE INTRODUCTION INTO EVIDENCE OF THE
HEROIN OBTAINED THROUGH EXECUTION OF THE SEARCH WARRANT ON THE GROUND
THAT THE AFFIDAVIT WAS "NOTHING MORE THAN HEARSAY."  THE COURT HOLDS
THE AFFIDAVIT INSUFFICIENT AND SETS ASIDE THE CONVICTION ON THE BASIS
OF TWO CASES, NEITHER OF WHICH IS CONTROLLING. 

FIRST IS NATHANSON V. UNITED STATES, 290 U.S. 41 (1933).  IN THAT
CASE THE AFFIDAVIT STATED THAT THE AFFIANT HAD "CAUSE TO SUSPECT AND
DID BELIEVE THAT CERTAIN MERCHANDISE" WAS IN THE PREMISES DESCRIBED. 
THERE WAS NOTHING IN NATHANSON, EITHER IN THE AFFIDAVIT OR IN THE OTHER
PROOF INTRODUCED AT TRIAL, TO SUGGEST THAT ANY FACTS HAD BEEN BROUGHT
OUT TO SUPPORT A REASONABLE BELIEF OR EVEN A SUSPICION.  ACCORDINGLY,
THE COURT HELD THAT "MERE AFFIRMANCE OF BELIEF OR SUSPICION IS NOT
ENOUGH."   AT 47.  BUT IN FOURTH AMENDMENT CASES FINDINGS OF
REASONABLENESS OR OF PROBABLE CAUSE NECESSARILY REST ON THE FACTS AND
CIRCUMSTANCES OF EACH PARTICULAR CASE.  IN AGUILAR, THE AFFIDAVIT WAS
BASED NOT ONLY ON "AFFIRMANCE OF BELIEF" BUT IN ADDITION UPON "RELIABLE
INFORMATION FROM A CREDIBLE PERSON" PLUS A WEEK'S SURVEILLANCE BY THE
AFFIANTS.  NATHANSON IS, THEREFORE, NOT APPOSITE. 

THE SECOND CASE THE COURT RELIES ON IS GIORDENELLO V. UNITED STATES,
357 U.S. 480 (1958).  THERE THE AFFIDAVIT ALLEGED THAT "GIORDENELLO DID
RECEIVE, CONCEAL, ETC., NARCOTIC DRUGS, TO-WIT:  HEROIN HYDROCHLORIDE
WITH KNOWLEDGE OF UNLAWFUL IMPORTATION  ...  ."  THE OPINION OF THE
COURT, BY MR. JUSTICE HARLAN, AFTER DISCUSSING RULES 3 AND 4 OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE, HELD THAT THE DEFECT IN THE
COMPLAINT WAS THAT IT "DOES NOT PROVIDE ANY BASIS FOR THE
COMMISSIONER'S DETERMINATION UNDER RULE 4 THAT PROBABLE CAUSE
EXISTED."  AT 486.  THE DISSENT IN THE CASE, IN COMMENTING ON THE
COURT'S HOLDING THAT THE COMPLAINT WAS INVALID, SAID:  "THE COURT DOES
NOT STRIKE DOWN THIS COMPLAINT DIRECTLY ON THE FOURTH AMENDMENT, BUT
MERELY ON AN EXTENSION OF RULE 4."  AT 491.  SINCE GIORDENELLO WAS A
FEDERAL CASE, DECIDED UNDER OUR SUPERVISORY POWERS (RULES 3 AND 4 OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE), IT DOES NOT CONTROL HERE. 
(FN1)  AS WE SAID IN KER V. CALIFORNIA, 374 U.S. 23, 33 (1963), "THE
DEMANDS OF OUR FEDERAL SYSTEM COMPEL US TO DISTINGUISH BETWEEN EVIDENCE
HELD INADMISSIBLE BECAUSE OF OUR SUPERVISORY POWERS OVER FEDERAL COURTS
AND THAT HELD INADMISSIBLE BECAUSE PROHIBITED BY THE UNITED STATES
CONSTITUTION." 

EVEN IF GIORDENELLO WAS RESTED ON THE CONSTITUTION, IT WOULD NOT BE
CONTROLLING HERE BECAUSE OF THE SIGNIFICANT DIFFERENCES IN THE FACTS OF
THE TWO CASES.  IN GIORDENELLO THE COURT SAID:  "THE COMPLAINT  ...
DOES NOT INDICATE ANY SOURCES FOR THE COMPLAINANT'S BELIEF; AND IT DOES
NOT SET FORTH ANY OTHER SUFFICIENT BASIS UPON WHICH A FINDING OF
PROBABLE CAUSE COULD BE MADE."  357 U.S., AT 486.  HERE, IN AGUILAR'S
CASE, THE AFFIDAVIT DID ALLEGE A SOURCE FOR THE COMPLAINANT'S BELIEF,
I.E., "RELIABLE INFORMATION FROM A CREDIBLE PERSON  ...  THAT HEROIN
...  AND OTHER NARCOTICS  ... ARE BEING KEPT" IN PETITIONER'S PREMISES
"FOR THE PURPOSE OF SALE AND USE CONTRARY TO THE PROVISIONS OF THE
LAW."  THIS TAKES THE AFFIDAVIT HERE ENTIRELY OUTSIDE THE GIORDENELLO
HOLDING.  IN GIORDENELLO NO SOURCE OF INFORMATION WAS STATED, WHEREAS
HERE THERE WAS A RELIABLE ONE.  THE AFFIDAVIT THUS SHOWS "PROBABLE
CAUSE" WITHIN THE MEANING OF THE FOURTH AMENDMENT, AS THAT AMENDMENT
WAS INTERPRETED BY THIS COURT IN DRAPER V. UNITED STATES, 358 U.S. 307
(1959), WHERE IT WAS CONTENDED THAT THE INFORMATION GIVEN BY AN
INFORMANT TO AN OFFICER WAS INADMISSIBLE BECAUSE IT WAS HEARSAY.  THE
COURT IN DRAPER HELD THAT PETITIONER WAS "ENTIRELY IN ERROR.  BRINEGAR
V. UNITED STATES  ...  HAS SETTLED THE QUESTION THE OTHER WAY."  AT
311.  IN THE FOLLOWING YEAR THIS WAS REAFFIRMED IN JONES V. UNITED
STATES, 362 U.S. 257, 271 (1960):  "WE CONCLUDE THEREFORE THAT HEARSAY
MAY BE THE BASIS FOR A WARRANT."  (FN2)  FURTHERMORE, IN THE CASE OF
RUGENDORF V. UNITED STATES, DECIDED ONLY THIS TERM, WE HELD AN
AFFIDAVIT GOOD BASED ON INFORMATION THAT AN INFORMER HAD SEEN CERTAIN
FURS IN RUGENDORF'S BASEMENT.  376 U.S. 528.  IN THE AGUILAR AFFIDAVIT
THE INFORMER TOLD THE OFFICERS THAT NARCOTICS WERE ACTUALLY "KEPT AT
THE ABOVE DESCRIBED PREMISES FOR THE PURPOSE OF SALE ...  ."  THE COURT
SEEMS TO HOLD THAT WHAT THE INFORMER SAYS IS THE TEST OF HIS
RELIABILITY.  I SUBMIT THAT THIS HAS NOTHING TO DO WITH IT.  THE
OFFICER'S EXPERIENCE WITH THE INFORMER IS THE TEST AND HERE THE TWO
OFFICERS SWORE THAT THE INFORMER WAS CREDIBLE AND THE INFORMATION
RELIABLE.  AT THE HEARING ON THE MOTION TO SUPRESS OFFICER STRICKLAND
TESTIFIED THAT HE DELAYED GETTING THE SEARCH WARRANT FOR A WEEK IN
ORDER TO "SET UP SURVEILLANCE ON THE HOUSE."  THE INFORMANT'S
STATEMENT, OFFICER STRICKLAND SAID, WAS "THE FIRST INFORMATION"
RECEIVED AND WAS ONLY "SOME OF" THAT WHICH SUPPORTED THE APPLICATION
FOR THE WARRANT.  THE TOTALITY OF THE CIRCUMSTANCES UPON WHICH THE
OFFICER RELIED IS CERTAINLY PERTINENT TO THE VALIDITY OF THE WARRANT. 
SEE THE USE OF SUCH TESTIMONY IN GIORDENELLO, SUPRA, AT 485, 486.  AND,
JUST AS IN THAT CASE, THERE IS NOTHING IN THE RECORD HERE TO SHOW WHAT
THE OFFICERS VERBALLY TOLD THE MAGISTRATE.  THE SURVEILLANCE OF
AGUILAR'S HOUSE, WHICH IS CONFIRMED BY THE STATE'S BRIEF, APPARENTLY
GAVE THE OFFICERS FURTHER EVIDENCE UPON WHICH THEY BASED THEIR PERSONAL
BELIEF.  HENCE THE AFFIDAVIT HERE IS A FAR CRY FROM "SUSPICION" OR
"AFFIRMANCE OF BELIEF."  IT WAS BASED ON RELIABLE INFORMATION FROM A
CREDIBLE INFORMANT PLUS PERSONAL SURVEILLANCE BY THE OFFICERS. 

FURTHERMORE, THE COURTS OF APPEALS HAVE OFTEN APPROVED AFFIDAVITS
SIMILAR TO THE ONE HERE.  SEE, E.G., UNITED STATES V. EISNER, 297 F.2D
595 (C.A. 6TH CIR.); EVANS V. UNITED STATES, 242 F.2D 534 (C.A. 6TH
CIR.); UNITED STATES V. RAMIREZ, 279 F.2D 712, 715 (C.A.2D CIR.)
(DICTUM); AND UNITED STATES V. MEEKS, 313 F.2D 464 (C.A. 6TH CIR.).  WE
DENIED CERTIORARI IN EISNER, 369 U.S. 859, ALTHOUGH THE AFFIDAVIT THERE
STATED ONLY THAT "INFORMATION HAS BEEN OBTAINED BY S.A. CLIFFORD
ANDERSON  ...  WHICH HE BELIEVES TO BE RELIABLE  ...  ," 297 F.2D, AT
596, AND IN EVANS, 353 U.S. 976, WHERE THE AFFIANT WAS A MAN WHO "CAME
TO THE HEADQUARTERS OF THE FEDERAL LIQUOR LAW ENFORCEMENT OFFICERS AND
STATED THAT HE WISHED TO GIVE INFORMATION  ...  ," 242 F.2D, AT 535. 

IN SUMMARY, THE INFORMATION MUST BE MORE THAN MERE WHOLLY UNSUPPORTED
SUSPICION BUT LESS THAN "WOULD JUSTIFY CONDEMNATION," AS CHIEF JUSTICE
MARSHALL SAID IN LOCKE V. UNITED STATES, 7 CRANCH 339, 348 (1813).  AS
CHIEF JUSTICE TAFT SAID IN CARROLL V. UNITED STATES, 267 U.S. 132, 162
(1925): PROBABLE CAUSE EXISTS WHERE "THE FACTS AND CIRCUMSTANCES WITHIN
THEIR (THE OFFICERS') KNOWLEDGE AND OF WHICH THEY HAD REASONABLY
TRUSTWORTHY INFORMATION ARE  ...  SUFFICIENT IN THEMSELVES TO WARRANT A
MAN OF REASONABLE CAUTION IN THE BELIEF THAT" AN OFFENSE HAS BEEN OR IS
BEING COMMITTED.  AND AS MR. JUSTICE RUTLEDGE SO WELL STATED IN
BRINEGAR V. UNITED STATES, 338 U.S. 160, 176 (1949):

"THESE LONG-PREVAILING STANDARDS SEEK TO SAFE-GUARD CITIZENS FROM
RASH AND UNREASONABLE INTERFERENCES WITH PRIVACY AND FROM UNFOUNDED
CHARGES OF CRIME.  THEY ALSO SEEK TO GIVE FAIR LEEWAY FOR ENFORCING THE
LAW IN THE COMMUNITY'S PROTECTION.  BECAUSE MANY SITUATIONS WHICH
CONFRONT OFFICERS IN THE COURSE OF EXECUTING THEIR DUTIES ARE MORE OR
LESS AMBIGUOUS, ROOM MUST BE ALLOWED FOR SOME MISTAKES ON THEIR PART. 
BUT THE MISTAKES MUST BE THOSE OF REASONABLE MEN, ACTING ON FACTS
LEADING SENSIBLY TO THEIR CONCLUSIONS OF PROBABILITY.  THE RULE OF
PROBABLE CAUSE IS A PRACTICAL, NONTECHNICAL CONCEPTION AFFORDING THE
BEST COMPROMISE THAT HAS BEEN FOUND FOR ACCOMMODATING THESE OFTEN
OPPOSING INTERESTS.  REQUIRING MORE WOULD UNDULY HAMPER LAW
ENFORCEMENT.  TO ALLOW LESS WOULD BE TO LEAVE LAW-ABIDING CITIZENS AT
THE MERCY OF THE OFFICERS' WHIM OR CAPRICE." 

BELIEVING THAT THE COURT HAS SUBSTITUTED A RIGID, ACADEMIC FORMULA FOR
THE UNRIGID STANDARDS OF REASONABLENESS AND "PROBABLE CAUSE" LAID DOWN
BY THE FOURTH AMENDMENT ITSELF - A SUBSTITUTION OF TECHNICALITY FOR
PRACTICALITY - AND BELIEVING THAT THE COURT'S HOLDING WILL TEND TO
OBSTRUCT THE ADMINISTRATION OF CRIMINAL JUSTICE THROUGHOUT THE COUNTRY,
I RESPECTFULLY DISSENT. 

FN1  MR. JUSTICE BLACK, WHO JOINED THE COURT'S OPINION IN
GIORDENELLO, JOINS THIS DISSENT ON THE BASIS OF HIS BELIEF THAT
GIORDENELLO WAS BASED ON RULE 4 AND NOT ON THE LESS EXACTING
REQUIREMENTS OF THE FOURTH AMENDMENT. 

FN2  THE AFFIDAVIT IN JONES WAS MORE DETAILED, INCLUDING A STATEMENT
OF WHERE THE HEROIN MIGHT BE FOUND, VIZ., "ON THEIR PERSON, UNDER A
PILLOW, ON A DRESSER OR ON A WINDOW LEDGE IN SAID APARTMENT."   BUT
THIS DETAIL ADDS NOTHING TO THE RELIABILITY OF THE INFORMATION
FURNISHED.  LIKEWISE, THE ALLEGATION IN JONES THAT THE INFORMER HAD "ON
PREVIOUS OCCASION" GIVEN INFORMATION "WHICH WAS CORRECT" WAS CONTAINED
IN SUBSTANCE IN THE AGUILAR AFFIDAVIT. 
..END :
























VIKING THEATRE CORP. V. PARAMOUNT FILM DISTRIBUTING CORP. 378 U.S. 123 


NO. 481.  ARGUED APRIL 27, 1964.  - DECIDED JUNE 15, 1964.  - JUDGMENT
AFFIRMED BY AN EQUALLY DIVIDED COURT.  - REPORTED BELOW:  320 F.2D
285. 


VIKING THEATRE CORP. V. PARAMOUNT FILM DISTRIBUTING CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :














DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL FOR CALIFORNIA V. AMMEX
WAREHOUSE CO. OF SAN YSIDRO, INC. 378 U.S. 124 


NO. 919.  DECIDED JUNE 15, 1964.  - 224 F. SUPP. 546, AFFIRMED. 


DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL FOR CALIFORNIA ET AL. V. AMMEX
WAREHOUSE CO. OF SAN YSIDRO, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
HOSTETTER V. IDLEWILD BON VOYAGE LIQUOR CORP., 377 U.S. 324. 

MR. JUSTICE BLACK AND MR. JUSTICE GOLDBERG DISSENT FOR THE REASONS
STATED IN THE DISSENTING OPINION IN HOSTETTER V. IDLEWILD BON VOYAGE
LIQUOR CORP., SUPRA.
..END :











MITCHELL BROS. TRUCK LINES V. UNITED STATES 378 U.S. 125 


NO. 993.  DECIDED JUNE 15, 1964.  - 225 F. SUPP. 755, AFFIRMED. 


MITCHELL BROS. TRUCK LINES V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















DUNNE LEASES CARS & TRUCKS, INC. V. LUSSIER, REGISTRAR OF MOTOR VEHICLES
FOR RHODE ISLAND 378 U.S. 125 


NO. 1029.  DECIDED JUNE 15, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  SEE - R.I. - , 196
A.2D 728. 


DUNNE LEASES CARS & TRUCKS, INC., V. LUSSIER, REGISTRAR OF MOTOR
VEHICLES FOR RHODE ISLAND. 

APPEAL FROM THE SUPERIOR COURT OF RHODE ISLAND, PROVIDENCE COUNTY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















BENKO V. HARTFORD ACCIDENT & INDEMNITY CO. 378 U.S. 126 


NO. 1345, MISC.  DECIDED JUNE 15, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW: 231 MD. 419, 190 A.2D 638. 


BENKO V. HARTFORD ACCIDENT & INDEMNITY CO. ET AL. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ELFBRANDT V. RUSSELL 378 U.S. 127 


NO. 553, MISC.  DECIDED JUNE 15, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  94 ARIZ. 1, 381 P.2D
554. 


ELFBRANDT V. RUSSELL ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF ARIZONA FOR FURTHER
CONSIDERATION IN LIGHT OF BAGGETT V. BULLITT, 377 U.S. 360. 
..END :














CURTIS, INC. V. UNITED STATES 378 U.S. 128 


NO. 1033.  DECIDED JUNE 15, 1964.  - 225 F. SUPP. 894, AFFIRMED. 


CURTIS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO. 

PER CURIAM 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















ZOUMAH V. UNITED STATES 378 U.S. 129 


NO. 1130, MISC.  DECIDED JUNE 15, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


ZOUMAH V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS IN LIGHT OF THE RECOMMENDATION
OF THE SOLICITOR GENERAL AND UPON EXAMINATION OF ALL THE PAPERS FILED
IN THE CASE. 
..END :













DONOVAN V. CITY OF DALLAS 377 U.S. 408 


NO. 264.  ARGUED APRIL 22, 1964.  - DECIDED JUNE 8, 1964.  - 365 S.W.2D
919, REVERSED.  368 S.W.2D 240 (TEX. CIV. APP.), JUDGMENT VACATED AND
CAUSE REMANDED. 


A STATE COURT CANNOT ENJOIN PLAINTIFFS FROM PROSECUTING OR APPEALING
AN IN PERSONAM ACTION IN A FEDERAL COURT WHICH HAS JURISDICTION OF THE
PARTIES AND THE SUBJECT MATTER, NOR CAN THIS FEDERAL RIGHT BE DIVESTED
BY STATE CONTEMPT OR OTHER PROCEEDINGS, EVEN THOUGH A JUDGMENT OF A
STATE COURT IN THE SAME CONTROVERSY HAS ALREADY BEEN RENDERED AGAINST
CERTAIN PETITIONERS.  THE CASE IS REMANDED TO THE STATE TRIAL COURT TO
CONSIDER WHETHER IT WOULD HAVE PUNISHED PETITIONERS FOR CONTEMPT HAD IT
KNOWN THAT THE RESTRAINING ORDER PETITIONERS VIOLATED WAS INVALID.  PP.
408-414. 

DONOVAN ET AL. V. CITY OF DALLAS ET AL. 

CERTIORARI TO THE SUPREME COURT OF TEXAS AND THE COURT OF CIVIL
APPEALS OF TEXAS, FIFTH SUPREME JUDICIAL DISTRICT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED HERE IS WHETHER A STATE COURT CAN VALIDLY
ENJOIN A PERSON FROM PROSECUTING AN ACTION IN PERSONAM IN A DISTRICT OR
APPELLATE COURT OF THE UNITED STATES WHICH HAS JURISDICTION BOTH OF THE
PARTIES AND OF THE SUBJECT MATTER. 

THE CITY OF DALLAS, TEXAS, OWNS LOVE FIELD, A MUNICIPAL AIRPORT.  IN
1961, 46 DALLAS CITIZENS WHO OWNED OR HAD INTERESTS IN PROPERTY NEAR
THE AIRPORT FILED A CLASS SUIT IN A TEXAS COURT TO RESTRAIN THE CITY
FROM BUILDING AN ADDITIONAL RUNWAY AND FROM ISSUING AND SELLING
MUNICIPAL BONDS FOR THAT PURPOSE.  THE COMPLAINT ALLEGED MANY DAMAGES
THAT WOULD OCCUR TO THE PLAINTIFFS IF THE RUNWAY SHOULD BE BUILT AND
CHARGED THAT ISSUANCE OF THE BONDS WOULD BE ILLEGAL FOR MANY REASONS. 
THE CASE WAS TRIED, SUMMARY JUDGMENT WAS GIVEN FOR THE CITY, THE TEXAS
COURT OF CIVIL APPEALS AFFIRMED,  (FN1) THE SUPREME COURT OF TEXAS
DENIED REVIEW, AND WE DENIED CERTIORARI.  (FN2)  LATER 120 DALLAS
CITIZENS, INCLUDING 27 OF THE PLAINTIFFS IN THE EARLIER ACTION, FILED
ANOTHER ACTION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS SEEKING SIMILAR RELIEF.  A NUMBER OF NEW DEFENDANTS
WERE NAMED IN ADDITION TO THE CITY OF DALLAS, ALL THE DEFENDANTS BEING
CHARGED WITH TAKING PART IN PLANS TO CONSTRUCT THE RUNWAY AND TO ISSUE
AND SELL BONDS IN VIOLATION OF STATE AND FEDERAL LAWS.  THE COMPLAINT
SOUGHT AN INJUNCTION AGAINST CONSTRUCTION OF THE RUNWAY, ISSUANCE OF
BONDS, PAYMENT ON BONDS ALREADY ISSUED, AND CIRCULATION OF FALSE
INFORMATION ABOUT THE BOND ISSUE, AS WELL AS A DECLARATION THAT ALL THE
BONDS WERE ILLEGAL AND VOID.  NONE OF THE BONDS WOULD BE APPROVED, AND
THEREFORE UNDER TEXAS LAW NONE COULD BE ISSUED, SO LONG AS THERE WAS
PENDING LITIGATION CHALLENGING THEIR VALIDITY.  (FN3)  THE CITY FILED A
MOTION TO DISMISS AND AN ANSWER TO THE COMPLAINT IN THE FEDERAL COURT. 
BUT AT THE SAME TIME THE CITY APPLIED TO THE TEXAS COURT OF CIVIL
APPEALS FOR A WRIT OF PROHIBITION TO BAR ALL THE PLAINTIFFS IN THE CASE
IN THE UNITED STATES DISTRICT COURT FROM PROSECUTING THEIR CASE THERE. 
THE TEXAS COURT OF CIVIL APPEALS DENIED RELIEF, HOLDING THAT IT WAS
WITHOUT POWER TO ENJOIN LITIGANTS FROM PROSECUTING AN ACTION IN A
FEDERAL COURT AND THAT THE DEFENSE OF RES JUDICATA ON WHICH THE CITY
RELIED COULD BE RAISED AND ADJUDICATED IN THE UNITED STATES DISTRICT
COURT.  (FN4)  ON PETITION FOR MANDAMUS THE SUPREME COURT OF TEXAS TOOK
A DIFFERENT VIEW, HOWEVER, HELD IT THE DUTY OF THE COURT OF CIVIL
APPEALS TO PROHIBIT THE LITIGANTS FROM FURTHER PROSECUTING THE UNITED
STATES DISTRICT COURT CASE, AND STATED THAT A WRIT OF MANDAMUS WOULD
ISSUE SHOULD THE COURT OF CIVIL APPEALS FAIL TO PERFORM THIS DUTY. 
(FN5) THE COURT OF CIVIL APPEALS PROMPTLY ISSUED A WRIT PROHIBITING ALL
THE PLAINTIFFS IN THE UNITED STATES DISTRICT COURT CASE FROM ANY
FURTHER PROSECUTION OF THAT CASE AND ENJOINED THEM "INDIVIDUALLY AND AS
A CLASS  ... FROM FILING OR INSTITUTING  ...  ANY FURTHER LITIGATION,
LAWSUITS OR ACTIONS IN ANY COURT, THE PURPOSE OF WHICH IS TO CONTEST
THE VALIDITY OF THE AIRPORT REVENUE BONDS  ...  OR FROM IN ANY MANNER
INTERFERING WITH  ...  THE PROPOSED BONDS  ...  ."  THE UNITED STATES
DISTRICT COURT IN AN UNREPORTED OPINION DISMISSED THE CASE PENDING
THERE.  COUNSEL DONOVAN, WHO IS ONE OF THE PETITIONERS HERE, EXCEPTED
TO THE DISMISSAL AND THEN FILED AN APPEAL FROM THAT DISMISSAL IN THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.  THE TEXAS COURT
OF CIVIL APPEALS THEREUPON CITED DONOVAN AND THE OTHER UNITED STATES
DISTRICT COURT CLAIMANTS FOR CONTEMPT AND CONVICTED 87 OF THEM ON A
FINDING THAT THEY HAD VIOLATED ITS "VALID ORDER."  (FN6)  DONOVAN WAS
SENTENCED TO SERVE 20 DAYS IN JAIL, AND THE OTHER 86 WERE FINED $200
EACH, AN AGGREGATE OF $17,200.  THESE PENALTIES WERE IMPOSED UPON EACH
CONTEMNER FOR HAVING EITHER (1) JOINED AS A PARTY PLAINTIFF IN THE
UNITED STATES DISTRICT COURT CASE; (2) FAILED TO REQUEST AND CONTESTED
THE DISMISSAL OF THAT CASE; (3) TAKEN EXCEPTIONS TO THE DISMISSAL
PREPARATORY TO APPEALING TO THE COURT OF APPEALS; OR (4) FILED A
SEPARATE ACTION IN THE FEDERAL DISTRICT COURT SEEKING TO ENJOIN THE
SUPREME COURT OF TEXAS FROM INTERFERING WITH THE ORIGINAL FEDERAL-COURT
SUIT.  AFTER THE FINES HAD BEEN PAID AND HE HAD SERVED HIS JAIL
SENTENCE, (FN7) COUNSEL DONOVAN APPEARED IN THE DISTRICT COURT ON
BEHALF OF HIMSELF AND ALL THOSE WHO HAD BEEN FINED AND MOVED TO DISMISS
THE APPEAL TO THE UNITED STATES COURT OF APPEALS.  HIS MOTION STATED
THAT IT WAS MADE UNDER DURESS AND THAT UNLESS THE MOTION WAS MADE "THE
ATTORNEY FOR DEFENDANT CITY OF DALLAS AND THE CHIEF JUDGE OF THE COURT
OF CIVIL APPEALS HAVE THREATENED THESE APPELLANTS AND THEIR ATTORNEY
WITH FURTHER PROSECUTION FOR CONTEMPT RESULTING IN ADDITIONAL FINES AND
IMPRISONMENT."  THE UNITED STATES DISTRICT COURT THEN DISMISSED THE
APPEAL.  (FN8) 

WE DECLINED TO GRANT CERTIORARI TO REVIEW THE UNITED STATES DISTRICT
COURT'S DISMISSAL OF THE CASE BEFORE IT OR ITS DISMISSAL OF THE APPEAL
BROUGHT ON BY THE STATE COURT'S COERCIVE CONTEMPT JUDGMENT, BUT WE DID
GRANT CERTIORARI TO REVIEW THE STATE SUPREME COURT'S JUDGMENT DIRECTING
THE CIVIL COURT OF APPEALS TO ENJOIN PETITIONERS FROM PROSECUTING THEIR
ACTION IN THE FEDERAL COURTS AND ALSO GRANTED CERTIORARI TO REVIEW THE
CIVIL COURT OF APPEALS' JUDGMENT OF CONVICTION FOR CONTEMPT.  375 U.S.
878.  WE THINK THE TEXAS COURT OF CIVIL APPEALS WAS RIGHT IN ITS FIRST
HOLDING THAT IT WAS WITHOUT POWER TO ENJOIN THESE LITIGANTS FROM
PROSECUTING THEIR FEDERAL-COURT ACTION, AND WE THEREFORE REVERSE THE
STATE SUPREME COURT'S JUDGMENT UPSETTING THAT OF THE COURT OF APPEALS. 
WE VACATE THE LATER CONTEMPT JUDGMENT OF THE COURT OF CIVIL APPEALS,
WHICH RESTED ON THE MISTAKEN BELIEF THAT THE WRIT PROHIBITING
LITIGATION BY THE FEDERAL PLAINTIFFS WAS "VALID." 

EARLY IN THE HISTORY OF OUR COUNTRY A GENERAL RULE WAS ESTABLISHED
THAT STATE AND FEDERAL COURTS WOULD NOT INTERFERE WITH OR TRY TO
RESTRAIN EACH OTHER'S PROCEEDINGS.  (FN9)  THAT RULE HAS CONTINUED
SUBSTANTIALLY UNCHANGED TO THIS TIME.  AN EXCEPTION HAS BEEN MADE IN
CASES WHERE A COURT HAS CUSTODY OF PROPERTY, THAT IS, PROCEEDINGS IN
REM OR QUASI IN REM.  IN SUCH CASES THIS COURT HAS SAID THAT THE STATE
OR FEDERAL COURT HAVING CUSTODY OF SUCH PROPERTY HAS EXCLUSIVE
JURISDICTION TO PROCEED.  PRINCESS LIDA V. THOMPSON, 305 U.S. 456, 465
468.  IN PRINCESS LIDA THIS COURT SAID "WHERE THE JUDGMENT SOUGHT IS
STRICTLY IN PERSONAM, BOTH THE STATE COURT AND THE FEDERAL COURT,
HAVING CONCURRENT JURISDICTION, MAY PROCEED WITH THE LITIGATION AT
LEAST UNTIL JUDGMENT IS OBTAINED IN ONE OF THEM WHICH MAY BE SET UP AS
RES JUDICATA IN THE OTHER."  ID., AT 466.  SEE ALSO KLINE V. BURKE
CONSTRUCTION CO., 260 U.S. 226.  IT MAY BE THAT A FULL HEARING IN AN
APPROPRIATE COURT WOULD JUSTIFY A FINDING THAT THE STATE-COURT JUDGMENT
IN FAVOR OF DALLAS IN THE FIRST SUIT BARRED THE ISSUES RAISED IN THE
SECOND SUIT, A QUESTION AS TO WHICH WE EXPRESS NO OPINION.  BUT
PLAINTIFFS IN THE SECOND SUIT CHOSE TO FILE THAT CASE IN THE FEDERAL
COURT.  THEY HAD A RIGHT TO DO THIS, A RIGHT WHICH IS THEIRS BY REASON
OF CONGRESSIONAL ENACTMENTS PASSED PURSUANT TO CONGRESSIONAL POLICY. 
AND WHETHER OR NOT A PLEA OF RES JUDICATA IN THE SECOND SUIT WOULD BE
GOOD IS A QUESTION FOR THE FEDERAL COURT TO DECIDE.  WHILE CONGRESS HAS
SEEN FIT TO AUTHORIZE COURTS OF THE UNITED STATES TO RESTRAIN STATE
COURT PROCEEDINGS IN SOME SPECIAL CIRCUMSTANCES,  (FN10) IT HAS IN NO
WAY RELAXED THE OLD AND WELL-ESTABLISHED JUDICIALLY DECLARED RULE
(FN11) THAT STATE COURTS ARE COMPLETELY WITHOUT POWER TO RESTRAIN
FEDERAL-COURT PROCEEDINGS IN IN PERSONAM ACTIONS LIKE THE ONE HERE. 
AND IT DOES NOT MATTER THAT THE PROHIBITION HERE WAS ADDRESSED TO THE
PARTIES RATHER THAN TO THE FEDERAL COURT ITSELF.  FOR THE HEART OF THE
RULE AS DECLARED BY THIS COURT IS THAT: 

"  ...  WHERE THE JURISDICTION OF A COURT, AND THE RIGHT OF A
PLAINTIFF TO PROSECUTE HIS SUIT IN IT, HAVE ONCE ATTACHED, THAT RIGHT
CANNOT BE ARRESTED OR TAKEN AWAY BY PROCEEDINGS IN ANOTHER COURT ...  .
THE FACT, THEREFORE, THAT AN INJUNCTION ISSUES ONLY TO THE PARTIES
BEFORE THE COURT, AND NOT TO THE COURT, IS NO EVASION OF THE
DIFFICULTIES THAT ARE THE NECESSARY RESULT OF AN ATTEMPT TO EXERCISE
THAT POWER OVER A PARTY WHO IS A LITIGANT IN ANOTHER AND INDEPENDENT
FORUM."  (FN12) 

PETITIONERS BEING PROPERLY IN THE FEDERAL COURT HAD A RIGHT GRANTED
BY CONGRESS TO HAVE THE COURT DECIDE THE ISSUES THEY PRESENTED, AND TO
APPEAL TO THE COURT OF APPEALS FROM THE DISTRICT COURT'S DISMISSAL. 
THEY HAVE BEEN PUNISHED BOTH FOR PROSECUTING THEIR FEDERAL-COURT CASE
AND FOR APPEALING IT.  THEY DISMISSED THEIR APPEAL BECAUSE OF THREATS
TO PUNISH THEM MORE IF THEY DID NOT DO SO.  THE LEGAL EFFECT OF SUCH A
COERCED DISMISSAL ON THEIR APPEAL IS NOT NOW BEFORE US, BUT THE
PROPRIETY OF A STATE COURT'S PUNISHMENT OF A FEDERAL-COURT LITIGANT FOR
PURSUING HIS RIGHT TO FEDERAL-COURT REMEDIES IS.  THAT RIGHT WAS
GRANTED BY CONGRESS AND CANNOT BE TAKEN AWAY BY THE STATE.  THE TEXAS
COURTS WERE WITHOUT POWER TO TAKE AWAY THIS FEDERAL RIGHT BY CONTEMPT
PROCEEDINGS OR OTHERWISE.  (FN13) 

IT IS ARGUED HERE, HOWEVER, THAT THE COURT OF CIVIL APPEALS' JUDGMENT
OF CONTEMPT SHOULD NEVERTHELESS BE UPHELD ON THE PREMISE THAT IT WAS
PETITIONERS' DUTY TO OBEY THE RESTRAINING ORDER WHETHER THAT ORDER WAS
VALID OR INVALID.  THE COURT OF CIVIL APPEALS DID NOT CONSIDER OR PASS
UPON THIS QUESTION, BUT ACTED ON THE ASSUMPTION THAT PETITIONERS WERE
GUILTY OF "WILFULL DISOBEDIENCE OF A VALID ORDER."  368 S.W.2D, AT
244.  SINCE WE HOLD THE ORDER RESTRAINING PETITIONERS FROM PROSECUTING
THEIR CASE IN THE FEDERAL COURTS WAS NOT VALID, BUT WAS INVALID,
PETITIONERS HAVE BEEN PUNISHED FOR DISOBEYING AN INVALID ORDER. 
WHETHER THE TEXAS COURT WOULD HAVE PUNISHED PETITIONERS FOR CONTEMPT
HAD IT KNOWN THAT THE RESTRAINING ORDER PETITIONERS VIOLATED WAS
INVALID, WE DO NOT KNOW.  HOWEVER, SINCE THAT QUESTION WAS NEITHER
CONSIDERED NOR DECIDED BY THE TEXAS COURT, WE LEAVE IT FOR
CONSIDERATION BY THAT COURT ON REMAND.  WE EXPRESS NO OPINION ON THAT
QUESTION AT THIS TIME. 

THE JUDGMENT OF THE TEXAS SUPREME COURT IS REVERSED, THE JUDGMENT OF
THE TEXAS COURT OF CIVIL APPEALS IS VACATED, AND THE CASE IS REMANDED
TO THE COURT OF CIVIL APPEALS FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  ATKINSON V. CITY OF DALLAS, 353 S.W.2D 275 (TEX. CIV. APP.). 

FN2  370 U.S. 939. 

FN3  VERNON'S TEX. ANN. CIV. STAT. ART. 1269J-5, SEC 3.  SEE CITY OF
DALLAS V. DIXON, 365 S.W.2D 919, 925. 

FN4  CITY OF DALLAS V. BROWN, 362 S.W.2D 372 (TEX. CIV. APP.). 

FN5  CITY OF DALLAS V. DIXON, 365 S.W.2D 919. 

FN6  CITY OF DALLAS V. BROWN, 368 S.W.2D 240 (TEX. CIV. APP.). 

FN7  WHILE IN JAIL COUNSEL DONOVAN SOUGHT HABEAS CORPUS FROM BOTH THE
SUPREME COURT OF TEXAS AND THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT.  BOTH COURTS DENIED RELIEF WITHOUT OPINION. 

FN8  THE DISTRICT COURT A WEEK LATER DISMISSED AS MOOT THE ACTION
PETITIONERS HAD BROUGHT IN THAT COURT AGAINST THE SUPREME COURT OF
TEXAS TO ENJOIN THE TEXAS COURT FROM INTERFERING WITH THE PROSECUTION
OF THE FEDERAL-COURT SUIT.  DONOVAN V. SUPREME COURT OF TEXAS,
UNREPORTED.  WE DENIED CERTIORARI SOUGHT TO REVIEW THAT JUDGMENT.  375
U.S. 878. 

FN9  SEE, E.G., M'KIM V. VOORHIES, 7 CRANCH 279; DIGGS V. WOLCOTT, 4
CRANCH 179. 

FN10  SEE 28 U.S.C. SEC 2283; SEE ALSO 28 U.S.C. SEC 1651. 

FN11  SEE, E.G., UNITED STATES V. COUNCIL OF KEOKUK, 6 WALL.  514,
517; WEBER V. LEE COUNTY, 6 WALL.  210; RIGGS V. JOHNSON COUNTY, 6
WALL.  166, 194-196; M'KIM V. VOORHIES, 7 CRANCH 279. 

FN12  PECK V. JENNESS, 7 HOW.  612, 625.  SEE ALSO CENTRAL NATIONAL
BANK V. STEVENS, 169 U.S. 432; CF. BALTIMORE & O.R. CO. V. KEPNER, 314
U.S. 44, 54, N. 23. 

FN13  IN BALTIMORE & O.R. CO. V. KEPNER, 314 U.S. 44, THE COURT DID
NOT REACH THE QUESTION BEFORE US, SINCE THE DECISION THERE WAS RESTED
ON THE SPECIAL VENUE PROVISIONS OF THE FEDERAL EMPLOYERS' LIABILITY
ACT.  SEE 36 STAT. 291, AS AMENDED, 45 U.S.C. SEC 56. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE STEWART
JOIN, DISSENTING. 

THE QUESTION PRESENTED BY THIS CASE IS NOT THE GENERAL ONE STATED BY
THE COURT AT THE OUTSET OF ITS OPINION, BUT A MUCH NARROWER ONE:  MAY A
STATE COURT ENJOIN RESIDENT STATE-COURT SUITORS FROM PROSECUTING IN THE
FEDERAL COURTS VEXATIOUS, DUPLICATIVE LITIGATION WHICH HAS THE EFFECT
OF THWARTING A STATE-COURT JUDGMENT ALREADY RENDERED AGAINST THEM? 
GIVEN THE TEXAS SUPREME COURT'S FINDING, AMPLY SUPPORTED BY THE RECORD
AND IN NO WAY CHALLENGED BY THIS COURT, THAT THIS CONTROVERSY "HAS
REACHED THE POINT OF VEXATIOUS AND HARASSING LITIGATION," 365 S.W.2D
919, 927,  (FN1) I CONSIDER BOTH THE STATE INJUNCTION AND THE ENSUING
CONTEMPT ADJUDICATION TO HAVE BEEN PERFECTLY PROPER. 
                           I. 

THE POWER OF A COURT IN EQUITY TO ENJOIN PERSONS SUBJECT TO ITS
JURISDICTION FROM CONDUCTING VEXATIOUS AND HARASSING LITIGATION IN
ANOTHER FORUM HAS NOT BEEN DOUBTED UNTIL NOW.  IN COLE V. CUNNINGHAM,
133 U.S. 107, 111, THIS COURT AFFIRMED "A DECREE OF THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS, RESTRAINING CITIZENS OF THAT
COMMONWEALTH FROM THE PROSECUTION OF ATTACHMENT SUITS IN NEW YORK,
BROUGHT BY THEM FOR THE PURPOSE OF EVADING THE LAWS OF THEIR DOMICIL
...  ."  THE COURT STATED: 

"THE JURISDICTION OF THE ENGLISH COURT OF CHANCERY TO RESTRAIN
PERSONS WITHIN ITS TERRITORIAL LIMITS AND UNDER ITS JURISDICTION FROM
DOING ANYTHING ABROAD, WHETHER THE THING FORBIDDEN BE A CONVEYANCE OR
OTHER ACT, IN PAIS, OR THE INSTITUTION OR THE PROSECUTION OF AN ACTION
IN A FOREIGN COURT, IS WELL SETTLED."  ID., AT 116-117. 

THE COURT QUOTED WITH APPROVAL THE FOLLOWING PASSAGE FROM MR. JUSTICE
STORY'S EQUITY JURISPRUDENCE, VOL. II (10TH ED. 1870), 89:  "IT IS NOW
HELD THAT WHENEVER THE PARTIES ARE RESIDENT WITHIN A COUNTRY, THE
COURTS OF THAT COUNTRY HAVE FULL AUTHORITY TO ACT UPON THEM PERSONALLY
WITH RESPECT TO THE SUBJECT OF SUITS IN A FOREIGN COUNTRY, AS THE ENDS
OF JUSTICE MAY REQUIRE; AND WITH THAT VIEW TO ORDER THEM TO TAKE, OR TO
OMIT TO TAKE, ANY STEPS AND PROCEEDINGS IN ANY OTHER COURT OF JUSTICE,
WHETHER IN THE SAME COUNTRY, OR IN ANY FOREIGN COUNTRY."  (FN2)  ID.,
AT 119.  SEE ALSO SIMON V. SOUTHERN R. CO., 236 U.S. 115. 

THIS COURT, IN 1941, EXPRESSLY RECOGNIZED THE POWER OF A STATE COURT
TO DO PRECISELY WHAT THE TEXAS COURT DID HERE.  IN BALTIMORE & OHIO R.
CO. V. KEPNER, 314 U.S. 44, 51-52, THE COURT, ALTHOUGH DENYING THE
STATE COURT'S POWER TO ISSUE AN INJUNCTION IN THAT CASE, SAID: 

"THE REAL CONTENTION OF PETITIONER IS THAT, DESPITE THE ADMITTED
VENUE, RESPONDENT IS ACTING IN A VEXATIOUS AND INEQUITABLE MANNER IN
MAINTAINING THE FEDERAL COURT SUIT IN A DISTANT JURISDICTION WHEN A
CONVENIENT AND SUITABLE FORUM IS AT RESPONDENT'S DOORSTEP.  UNDER SUCH
CIRCUMSTANCES, PETITIONER ASSERTS POWER, ABSTRACTLY SPEAKING, IN THE
OHIO COURT TO PREVENT A RESIDENT UNDER ITS JURISDICTION FROM DOING
INEQUITY.  SUCH POWER DOES EXIST." 

MR. JUSTICE FRANKFURTER, DISSENTING BECAUSE OF DISAGREEMENT WITH THE
PARTICULAR BASIS FOR THE COURT'S REFUSAL TO GIVE EFFECT TO THE GENERAL
PRINCIPLE, SEE INFRA, P. 418, OBSERVED THAT THE OPINION OF THE COURT
DID "NOT DENY THE HISTORIC POWER OF COURTS OF EQUITY TO PREVENT A
MISUSE OF LITIGATION BY ENJOINING RESORT TO VEXATIOUS AND OPPRESSIVE
FOREIGN SUITS," ID., AT 55,  (FN3) AND THAT THE DECISION DID NOT "GIVE
NEW CURRENCY TO THE DISCREDITED NOTION THAT THERE IS A GENERAL LACK OF
POWER IN THE STATE COURTS TO ENJOIN PROCEEDINGS IN FEDERAL COURTS,"
ID., AT 56. 

APART FROM THESE EXPRESS STATEMENTS IN BOTH THE MAJORITY AND
DISSENTING OPINIONS, THE COURT'S REASONING IN THE BALTIMORE & OHIO R.
CO. CASE CLEARLY IMPLIES A VIEW CONTRARY TO THE ONE TAKEN BY THE
MAJORITY HERE.  KEPNER, AN INJURED EMPLOYEE OF THE RAILROAD, FILED SUIT
AGAINST IT IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK. 
THE ACCIDENT OUT OF WHICH HIS INJURIES AROSE OCCURRED IN OHIO, WHICH
WAS ALSO THE STATE IN WHICH HE RESIDED.  JURISDICTION WAS BASED ON THE
PROVISION OF THE FEDERAL EMPLOYERS' LIABILITY ACT WHICH PERMITTED AN
EMPLOYEE TO BRING SUIT IN A DISTRICT IN WHICH THE DEFENDANT WAS DOING
BUSINESS.  (FN4)  THE RAILROAD BROUGHT A PROCEEDING IN THE OHIO STATE
COURTS TO ENJOIN KEPNER FROM CONTINUING TO PROSECUTE HIS SUIT IN THE
FEDERAL COURT IN NEW YORK.  IT ARGUED THAT MORE APPROPRIATE STATE AND
FEDERAL COURTS WERE OPEN AND THAT THE LARGE COST TO ITSELF OF DEFENDING
THE SUIT IN A DISTANT FORUM WAS NEEDLESS.  DECIDING SOLELY ON THE BASIS
THAT THE VENUE PROVISIONS OF THE FEDERAL EMPLOYERS' LIABILITY ACT GAVE
AN INJURED EMPLOYEE A PRIVILEGE WHICH STATE LEGISLATIVE OR JUDICIAL
ACTION COULD NOT OVERRIDE, THE COURT DENIED THE POWER OF THE OHIO
COURTS TO ISSUE AN INJUNCTION.  QUITE EVIDENTLY, THIS BASIS OF DECISION
WOULD HAVE BEEN MEANINGLESS UNLESS IT WAS PRESUMED THAT IN THE ABSENCE
OF THE VENUE PROVISIONS OF THE STATUTE THE OHIO COURT WOULD HAVE HAD
POWER TO ENJOIN.  NOR IS IT EVEN NECESSARY TO RESORT TO THIS OBVIOUS
INFERENCE.  FOR THE COURT MADE IT EXPRESS:  "AS COURTS OF EQUITY
ADMITTEDLY POSSESSED THIS POWER TO ENJOIN IMPROPER RESORT TO THE COURTS
OF A FOREIGN JURISDICTION BEFORE THE ENACTMENT OF SEC 6 OF THE F.E.L.A.
... ." ID., AT 53.  SEE ALSO BLANCHARD V. COMMONWEALTH OIL CO., 294
F.2D 834, 841. 

IN LIGHT OF THE FOREGOING, THERE WAS NO IMPROPRIETY IN THE ISSUANCE
OF THE STATE COURT'S INJUNCTION IN THE PRESENT CASE. 

 II. 

NONE OF THE CASES ON WHICH THE COURT RELIES DEALS WITH, OR IN ANY WAY
NEGATIVES, THE POWER OF A STATE COURT TO ENJOIN FEDERAL LITIGATION IN
CIRCUMSTANCES SUCH AS THOSE INVOLVED HERE.  NONE OF THEM WAS CONCERNED
WITH VEXATIOUS LITIGATION. 

THE ISSUE IN MCKIM V. VOORHIES, 7 CRANCH 279 (ANTE, P. 412, NOTE 9),
WAS WHETHER A STATE COURT COULD STAY PROCEEDINGS ON A FEDERAL COURT'S
JUDGMENT WHICH HAD ALREADY BEEN RENDERED WHEN THE STATE COURT ACQUIRED
JURISDICTION AND WHICH, THEREFORE, INVOLVED NO ELEMENT OF HARASSMENT AT
ALL.  SIMILARLY, IN DIGGS V. WOLCOTT, 4 CRANCH 179 (CITED IBID.), IN
WHICH THE POSITION OF THE COURTS WAS IN REVERSE, SUIT WAS FIRST
COMMENCED IN THE STATE COURT.  RIGGS V. JOHNSON COUNTY, 6 WALL.  166
(ANTE, P. 413, NOTE 11), RESEMBLED MCKIM, SUPRA; IT INVOLVED THE POWER
OF A STATE COURT TO ISSUE AN INJUNCTION WHICH HAD THE EFFECT OF
PREVENTING A FEDERAL COURT FROM ENFORCING ITS JUDGMENT, ENTERED BEFORE
THE STATE COURT EVER GOT ITS HANDS ON THE CASE.  THE OTHER TWO CASES
WHICH THE COURT CITES WITH RIGGS (IBID.) ARE THE SAME AND WERE DECIDED
ON THE AUTHORITY OF RIGGS.  WEBER V. LEE COUNTY, 6 WALL.  210, 212;
UNITED STATES V. COUNCIL OF KEOKUK, 6 WALL.  514, 517. 

KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, 230 (ANTE, P. 412),
HELD, WITH RESPECT TO STATE AND FEDERAL COURTS, THAT "WHERE THE ACTION
FIRST BROUGHT IS IN PERSONAM AND SEEKS ONLY A PERSONAL JUDGMENT,
ANOTHER ACTION FOR THE SAME CAUSE IN ANOTHER JURISDICTION IS NOT
PRECLUDED."  THE DICTUM FROM PRINCESS LIDA V. THOMPSON, 305 U.S. 456,
466, WHICH THE COURT QUOTES (ANTE, P. 412), IS TO THE SAME EFFECT.  IN
NEITHER CASE IS THERE ANY DISCUSSION OF A COURT'S POWER IN EQUITY TO
PREVENT PERSONS SUBJECT TO ITS JURISDICTION FROM MAINTAINING VEXATIOUS
AND HARASSING SUITS ELSEWHERE.  MOREOVER, THE OPINIONS IN BOTH CASES
EXPLAIN THE RULE PERMITTING STATE AND FEDERAL COURTS TO ISSUE
INJUNCTIONS PROTECTIVE OF THEIR JURISDICTION IN IN REM ACTIONS - A RULE
WHICH THE COURT HERE DOES NOT QUESTION, SEE ANTE, P. 412 - ON THE
GROUND THAT THE RULE IS NECESSARY TO PERMIT THE COURT WHICH FIRST
ACQUIRES JURISDICTION OVER THE SUBJECT MATTER OF A CONTROVERSY
"EFFECTIVELY TO EXERCISE THE JURISDICTION VESTED IN IT  ...  ,"
PRINCESS LIDA, SUPRA, AT 467.  SEE KLINE, SUPRA, AT 229.  THAT
REASONING IS FULLY APPLICABLE HERE, SINCE MAINTENANCE OF THE SUIT IN
THE FEDERAL COURT HAS THE AUTOMATIC EFFECT OF NULLIFYING THE TEXAS
COURT'S DECREE. 

THE COURT CITES THREE CASES FOR THE PROPOSITION THAT IT IS
IMMATERIAL, FOR PURPOSES OF THIS CASE, THAT THE TEXAS COURT'S
INJUNCTION RUNS TO THE PARTIES RATHER THAN TO THE DISTRICT COURT.  SEE
ANTE, P. 413, NOTE 12.  NONE OF THEM IS APPOSITE.  IN PECK V. JENNESS,
7 HOW.  612, THE QUESTION, AS IN DIGGS, SUPRA, WAS WHETHER A FEDERAL
COURT "WAS VESTED WITH ANY POWER OR AUTHORITY TO OUST" A STATE COURT OF
ITS PROPERLY ESTABLISHED JURISDICTION OVER A CAUSE COMMENCED IN THE
STATE COURT LONG BEFORE ANY ACTION WAS TAKEN IN THE FEDERAL COURT. 
ID., AT 624.  CENTRAL NATIONAL BANK V. STEVENS, 169 U.S. 432, AGAIN
INVOLVED A STATE COURT'S ATTEMPT TO ENJOIN PRIVATE INDIVIDUALS FROM
GIVING EFFECT TO THE FINAL DECREE OF A FEDERAL COURT RENDERED BEFORE
THE SUIT WAS BEGUN IN THE STATE COURT.  BALTIMORE & OHIO R. CO. V.
KEPNER, SUPRA, HAS ALREADY BEEN DISCUSSED; IT IS EXPRESSLY AND BY
UNMISTAKABLE IMPLICATION DIRECTLY CONTRARY TO THE RESULT NOW REACHED BY
THE COURT. 

THERE CAN BE NO DISPUTE, THEREFORE, THAT ALL THE WEIGHT OF AUTHORITY,
INCLUDING THAT OF A RECENT PRONOUNCEMENT OF THIS COURT, IS CONTRARY TO
THE POSITION WHICH THE COURT TAKES IN THIS CASE.  IT IS NOT NECESSARY
TO COMMENT ON THE COURT'S ASSERTION, ANTE, P. 413, THAT THE PETITIONERS
"HAD A RIGHT GRANTED BY CONGRESS" TO MAINTAIN THEIR SUIT IN THE FEDERAL
COURT, FOR THAT IS THE VERY QUESTION AT ISSUE.  IN ANY EVENT, THE
STATUTORY BOUNDARIES OF FEDERAL JURISDICTION ARE HARDLY TO BE REGARDED
AS A LICENSE TO CONDUCT LITIGATION IN THE FEDERAL COURTS FOR THE
PURPOSE OF HARASSMENT.  (FN5)  THE EXCEPTION WHICH THE COURT RECOGNIZES
FOR IN REM ACTIONS DEMONSTRATES THAT NO SUCH VIEW OF FEDERAL
JURISDICTION IS TENABLE; FOR IN THOSE CASES, TOO, THE FEDERAL COURTS
HAVE STATUTORY JURISDICTION TO PROCEED. 

IN SHORT, TODAY'S DECISION RESTS UPON CONFUSION BETWEEN TWO DISTINCT
LINES OF AUTHORITY IN THIS COURT, ONE INVOLVING VEXATIOUS LITIGATION
AND THE OTHER NOT. 

I WOULD AFFIRM. 

FN1  UNDER TEXAS LAW, THE MERE FILING OF SUIT IN THE FEDERAL DISTRICT
COURT PREVENTED THE ISSUANCE OF BONDS TO FINANCE CONSTRUCTION AT LOVE
FIELD, THE DALLAS MUNICIPAL AIRPORT.  THE CITY'S RIGHT TO ISSUE SUCH
BONDS HAD BEEN UPHELD IN ATKINSON V. CITY OF DALLAS, 353 S.W.2D 275, A
CASE WHICH BOTH THE SUPREME COURT OF TEXAS AND THIS COURT (370 U.S.
939) DECLINED TO REVIEW.  AS FOUND BY THE SUPREME COURT OF TEXAS, "AN
ANALYSIS OF THE PETITION IN BROWN (THE DISTRICT COURT CASE) DISCLOSES
THAT THE ISSUES SOUGHT TO BE LITIGATED ARE ESSENTIALLY THE SAME AS THE
ISSUES LITIGATED IN ATKINSON, AND THE PRAYER IS FOR THE SAME ULTIMATE
RELIEF."  365 S.W.2D, AT 927.  IN AN ORAL OPINION DISMISSING THE ACTION
IN THE FEDERAL DISTRICT COURT, THE DISTRICT JUDGE FOUND THE SAME THING,
STATING:  "IN MY OPINION THERE IS NO JUSTICIABLE ISSUE TO BE PRESENTED
IN THE FEDERAL COURT CASE.  ALL THE ISSUES HAVE BEEN DECIDED IN THE
ATKINSON CASE." 

FN2  IN THE NEXT SENTENCE, STORY STATED THAT THERE WAS AN EXCEPTION
TO THIS DOCTRINE, BASED "UPON PECULIAR GROUNDS OF MUNICIPAL AND
CONSTITUTIONAL LAW"; STATE COURTS COULD NOT ENJOIN PROCEEDINGS IN
FEDERAL COURTS AND VICE VERSA.  IBID.  IT IS APPARENT FROM THE CASES
CITED TO SUPPORT THIS EXCEPTION THAT STORY HAD IN MIND THE KIND OF
SITUATION PRESENTED IN CASES LIKE THOSE RELIED ON BY THE PRESENT
MAJORITY, WHICH, AS WILL BE SHOWN IN PART II OF THIS OPINION, INFRA,
PP. 418-421, DEAL NOT WITH INJUNCTIONS TO PREVENT VEXATIOUS LITIGATION
BUT WITH INJUNCTIONS ISSUED IN VERY DIFFERENT CONTEXTS.  SEE ID., AT
89, NOTES 2-4. 

FN3  MANY DECISIONS OF THE STATE COURTS HAVE RECOGNIZED THIS
EQUITABLE POWER.  SEE, E.G., O'HAIRE V. BURNS, 45 COLO. 432, 101 P.
755; ROYAL LEAGUE V. KAVANAGH, 233 ILL. 175, 84 N.E.  178; OATES V.
MORNINGSIDE COLLEGE, 217 IOWA 1059, 252 N.W. 783; PERE MARQUETTE
RAILWAY V. SLUTZ, 268 MICH. 388, 256 N.W. 458; WILSER V. WILSER, 132
MINN. 167, 156 N.W. 271. 

FN4  "UNDER THIS CHAPTER AN ACTION MAY 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 JURISDICTION OF THE COURTS OF THE UNITED STATES UNDER THIS
CHAPTER SHALL BE CONCURRENT WITH THAT OF THE COURTS OF THE SEVERAL
STATES."  ACT OF APRIL 5, 1910, 36 STAT. 291, AS AMENDED, 45 U.S.C. SEC
56. 

FN5  AS THE CASES CITED IN PART II OF THIS OPINION ILLUSTRATE, THIS
COURT'S POWER TO REVIEW JUDGMENTS OF THE STATE COURTS IS AVAILABLE TO
PREVENT INTERFERENCE WITH THE LEGITIMATE INVOCATION OF FEDERAL
JURISDICTION.  THE PARALLEL DEVELOPMENT OF THE TWO DISTINCT LINES OF
CASES WHICH ARE NOW CONFUSED FOR THE FIRST TIME ITSELF DEMONSTRATES
THAT THE POSSIBILITY OF ABUSE IN SOME CASES IS NO GROUND FOR DENYING
ALTOGETHER THE TRADITIONAL EQUITABLE POWER TO PREVENT IMPROPER RESORT
TO THE COURTS. 
..END :






















WILBUR-ELLIS CO. V. KUTHER 377 U.S. 422 


NO. 109.  ARGUED FEBRUARY 20, 1964.  - DECIDED JUNE 8, 1964.  - 314 F.2D
71, REVERSED. 


RESPONDENT, WHO OWNED A COMBINATION PATENT COVERING A CANNING MACHINE,
AUTHORIZED THE SALE OF MACHINES MADE THEREUNDER DESIGNED TO PACK FISH
INTO "1-POUND" CANS.  PETITIONER COMPANY BOUGHT FOUR OF THESE MACHINES
SECOND-HAND, THREE OF THEM RUSTED, CORRODED AND INOPERABLE, AND ALL
FOUR REQUIRING CLEANING AND SANDBLASTING TO BECOME USABLE.  THE
MACHINES WERE RECONDITIONED AND SIX OF THE 35 ELEMENTS OF THE PATENT
COMBINATION WERE RESIZED TO ENABLE THE MACHINES OF PACK "5-OUNCE"
CANS.  THE DISTRICT COURT AND THE COURT OF APPEALS HELD FOR RESPONDENT
IN HIS SUIT FOR PATENT INFRINGEMENT.  HELD:  ADAPTING THE MACHINE FOR
USE ON A DIFFERENT-SIZED COMMODITY IS WITHIN THE PATENT RIGHTS
PURCHASED AND IS NOT AN INFRINGEMENT.  PP. 424-425. 

(A)  IN ADAPTING THE MACHINES TO A RELATED USE AND LENGTHENING THE
USEFUL CAPACITY OF THE OLD COMBINATION ON WHICH ROYALTIES WERE PAID,
PETITIONERS WERE CLOSER TO PERMISSIBLE "REPAIRING" THAN INFRINGING
"RECONSTRUCTING."  P. 425. 

(B)  THE FACT THAT THE ADAPTATION MADE THE MACHINES MORE USEFUL DID
NOT MAKE IT "RECONSTRUCTION."  P. 425. 

(C) PETITIONER'S LICENSE TO USE THE MACHINES IS NOT FOR "1-POUND"
CANS ONLY, AS THEY WERE SOLD OUTRIGHT AND WITH NO RESTRICTIONS.  P.
425. 

WILBUR-ELLIS CO. ET AL. V. KUTHER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT IS THE OWNER OF A COMBINATION PATENT COVERING A FISH
CANNING MACHINE.  A NUMBER OF MACHINES COVERED BY THE PATENT WERE
MANUFACTURED AND SOLD UNDER HIS AUTHORIZATION.  AMONG THEM WERE THE
FOUR MACHINES IN SUIT, PETITIONER WILBUR-ELLIS COMPANY BEING THE SECOND
HAND PURCHASER.  RESPONDENT RECEIVED OUT OF THE ORIGINAL PURCHASE PRICE
A ROYALTY OF $1,500 PER MACHINE.  AS ORIGINALLY CONSTRUCTED EACH OF
THESE MACHINES PACKED FISH INTO "1-POUND" CANS: 3 INCHES IN DIAMETER
AND 4 11/16 INCHES HIGH.  THREE OF THE MACHINES WHEN ACQUIRED BY WILBUR
ELLIS WERE CORRODED, RUSTED, AND INOPERATIVE; AND ALL REQUIRED CLEANING
AND SANDBLASTING TO MAKE THEM USABLE.  WILBUR-ELLIS RETAINED PETITIONER
LEUSCHNER TO PUT THE MACHINES IN CONDITION SO THEY WOULD OPERATE AND TO
RESIZE SIX OF THE 35 ELEMENTS THAT MADE UP THE PATENTED COMBINATION. 
THE RESIZING WAS FOR THE PURPOSE OF ENABLING THE MACHINES TO PACK FISH
INTO "5-OUNCE" CANS: 2 1/8 INCHES IN DIAMETER AND 3 1/2 INCHES LONG. 
ONE OF THE SIX ELEMENTS WAS SO CORRODED THAT IT COULD BE RENDERED
OPERABLE ONLY BY GRINDING IT DOWN TO A SIZE SUITABLE FOR USE WITH THE
SMALLER "5-OUNCE" CAN. 

THIS SUIT FOR INFRINGEMENT FOLLOWED; AND BOTH THE DISTRICT COURT, 200
F. SUPP. 841, AND THE COURT OF APPEALS, 314 F.2D 71, HELD FOR
RESPONDENT.  THE CASE IS HERE ON CERTIORARI.  373 U.S. 921. 

WE PUT TO ONE SIDE THE CASE WHERE THE DISCOVERY OR INVENTION RESIDED
IN OR EMBRACED EITHER THE SIZE OR LOCATIONAL CHARACTERISTICS OF THE
REPLACED ELEMENTS OF A COMBINATION PATENT OR THE SIZE OF THE COMMODITY
ON WHICH THE MACHINE OPERATED.  THE CLAIMS OF THE PATENT BEFORE US DO
NOT REACH THAT FAR.  WE ALSO PUT TO ONE SIDE THE CASE WHERE REPLACEMENT
WAS MADE OF A PATENTED COMPONENT OF A COMBINATION PATENT.  WE DEAL HERE
WITH A PATENT THAT COVERED ONLY A COMBINATION OF UNPATENTED
COMPONENTS. 

THE QUESTION IN TERMS OF PATENT LAW PRECEDENTS IS WHETHER WHAT WAS
DONE TO THESE MACHINES, THE ORIGINAL MANUFACTURE AND SALE OF WHICH HAD
BEEN LICENSED BY THE PATENTEE, AMOUNTED TO "REPAIR," IN WHICH EVENT
THERE WAS NO INFRINGEMENT, OR "RECONSTRUCTION," IN WHICH EVENT THERE
WAS.*  THE IDEA OF "RECONSTRUCTION" IN THIS CONTEXT HAS THE SPECIAL
CONNOTATION OF THOSE ACTS WHICH WOULD IMPINGE ON THE PATENTEE'S RIGHT
"TO EXCLUDE OTHERS FROM MAKING," 35 U.S.C.  SEC 154, THE ARTICLE.  AS
STATED IN WILSON V. SIMPSON, 9 HOW.  109, 123, "  ...  WHEN THE
MATERIAL OF THE COMBINATION CEASES TO EXIST, IN WHATEVER WAY THAT MAY
OCCUR, THE RIGHT TO RENEW IT DEPENDS UPON THE RIGHT TO MAKE THE
INVENTION.  IF THE RIGHT TO MAKE DOES NOT EXIST, THERE IS NO RIGHT TO
REBUILD THE COMBINATION."  ON THE OTHER HAND, "WHEN THE WEARING OR
INJURY IS PARTIAL, THEN REPAIR IS RESTORATION, AND NOT
RECONSTRUCTION."  IBID. REPLACING WORN-OUT CUTTING KNIVES IN A PLANING
MACHINE WAS HELD TO BE "REPAIR," NOT "RECONSTRUCTION," IN WILSON V.
SIMPSON, SUPRA.  OUR LATEST CASE WAS ARO MFG. CO. V. CONVERTIBLE TOP
REPLACEMENT CO., 365 U.S. 336, WHICH A MAJORITY OF THE COURT CONSTRUE
AS HOLDING THAT IT WAS NOT INFRINGEMENT TO REPLACE THE WORN-OUT FABRIC
OF A PATENTED CONVERTIBLE AUTOMOBILE TOP, WHOSE ORIGINAL MANUFACTURE
AND SALE HAD BEEN LICENSED BY THE PATENTEE.  SEE NO. 75, ARO MFG. CO.
V. CONVERTIBLE TOP REPLACEMENT CO., DECIDED THIS DAY.  POST, P. 476. 

* SEE COTTON-TIE CO. V. SIMMONS, 106 U.S. 89 (RECONSTRUCTION); HEYER
V. DUPLICATOR MFG. CO., 263 U.S. 100 (REPAIR). 

WHATEVER VIEW MAY BE TAKEN OF THE HOLDING IN THE FIRST ARO CASE, THE
MAJORITY BELIEVE THAT IT GOVERNS THE PRESENT ONE.  THESE FOUR MACHINES
WERE NOT SPENT; THEY HAD YEARS OF USEFULNESS REMAINING THOUGH THEY
NEEDED CLEANING AND REPAIR.  HAD THEY BEEN RENOVATED AND PUT TO USE ON
THE "1-POUND" CANS, THERE COULD BE NO QUESTION BUT THAT THEY WERE
"REPAIRED," NOT "RECONSTRUCTED," WITHIN THE MEANING OF THE CASES.  WHEN
SIX OF THE 35 ELEMENTS OF THE COMBINATION PATENT WERE RESIZED OR
RELOCATED, NO INVASION OF THE PATENT RESULTED, FOR AS WE HAVE SAID THE
SIZE OF CANS SERVICED BY THE MACHINE WAS NO PART OF THE INVENTION; NOR
WERE CHARACTERISTICS OF SIZE, LOCATION, SHAPE AND CONSTRUCTION OF THE
SIX ELEMENTS IN QUESTION PATENTED.  PETITIONERS IN ADAPTING THE OLD
MACHINES TO A RELATED USE WERE DOING MORE THAN REPAIR IN THE CUSTOMARY
SENSE; BUT WHAT THEY DID WAS KIN TO REPAIR FOR IT BORE ON THE USEFUL
CAPACITY OF THE OLD COMBINATION, ON WHICH THE ROYALTY HAD BEEN PAID. 
WE COULD NOT CALL IT "RECONSTRUCTION" WITHOUT SAYING THAT THE
PATENTEE'S RIGHT "TO EXCLUDE OTHERS FROM MAKING" THE PATENTED MACHINE,
35 U.S.C. SEC 154, HAD BEEN INFRINGED.  YET ADAPTATION FOR USE OF THE
MACHINE ON A "5-OUNCE" CAN IS WITHIN THE PATENT RIGHTS PURCHASED, SINCE
SIZE WAS NOT AN INVENTION. 

THE ADAPTATION MADE IN THE SIX NONPATENTED ELEMENTS IMPROVED THE
USEFULNESS OF THESE MACHINES.  THAT DOES NOT, HOWEVER, MAKE THE
ADAPTATION "RECONSTRUCTION" WITHIN THE MEANING OF THE CASES.  WE ARE
ASKED IN SUBSTANCE TO TREAT THE CASE AS IF PETITIONERS HAD A LICENSE
FOR USE OF THE MACHINES ON "1-POUND" CANS ONLY.  BUT THE SALES HERE
WERE OUTRIGHT, WITHOUT RESTRICTION.  ADAMS V. BURKE, 17 WALL.  453,
456, THEREFORE CONTROLS: 

"  ...  WHEN THE PATENTEE, OR THE PERSON HAVING HIS RIGHTS, SELLS A
MACHINE OR INSTRUMENT WHOSE SOLE VALUE IS IN ITS USE, HE RECEIVES THE
CONSIDERATION FOR ITS USE AND HE PARTS WITH THE RIGHT TO RESTRICT THAT
USE." 

AND SEE UNITED STATES V. UNIVIS LENS CO., 316 U.S. 241, 250. 
REVERSED. 

MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT SUBSTANTIALLY FOR THE
REASONS GIVEN IN THE MAJORITY OPINION IN THE COURT OF APPEALS, 314 F.2D
71. 
..END :








J.I. CASE CO. V. BORAK 377 U.S. 426 


NO. 402.  ARGUED APRIL 22-23, 1964.  - DECIDED JUNE 8, 1964.  - 317 F.2D
838, AFFIRMED. 


RESPONDENT, STOCKHOLDER OF PETITIONER COMPANY, BROUGHT A CIVIL ACTION
IN FEDERAL COURT FOR DEPRIVATION OF HIS AND OTHER STOCKHOLDERS' PRE
EMPTIVE RIGHTS BY REASON OF A MERGER INVOLVING THE COMPANY, ALLEGEDLY
EFFECTED THROUGH USE OF A FALSE AND MISLEADING PROXY STATEMENT.  THE
COMPLAINT HAS TWO COUNTS, ONE BASED ON DIVERSITY AND CLAIMING A BREACH
OF DIRECTORS' FIDUCIARY DUTY TO STOCKHOLDERS AND THE OTHER ALLEGING A
VIOLATION OF SEC 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934.   THE
DISTRICT COURT HELD THAT, IN A PRIVATE SUIT, IT COULD GRANT ONLY
DECLARATORY RELIEF UNDER SEC 27 OF THE ACT AS TO THE SECOND COUNT AND
THAT A STATE STATUTE REQUIRING SECURITY FOR EXPENSES IN DERIVATIVE
ACTIONS APPLIED TO EVERYTHING BUT THAT PART OF COUNT 2 SEEKING A
DECLARATORY JUDGMENT.  THE COURT OF APPEALS REVERSED, HOLDING THAT THE
STATE LAW WAS INAPPLICABLE AND THAT THE DISTRICT COURT HAD POWER TO
GRANT REMEDIAL RELIEF.  HELD: 

1.  PRIVATE SUITS ARE PERMISSIBLE UNDER SEC 27 FOR VIOLATION OF SECS
14(A) FOR BOTH DERIVATIVE AND DIRECT CAUSES.  PP. 430-431. 

2.  FEDERAL COURTS WILL PROVIDE THE REMEDIES REQUIRED TO CARRY OUT
THE CONGRESSIONAL PURPOSE OF PROTECTING FEDERAL RIGHTS.  PP. 433-435. 

(A)  REMEDIES ARE NOT LIMITED TO PROSPECTIVE OR DECLARATORY RELIEF,
BUT THE OVERRIDING FEDERAL LAW CONTROLS THE MEASURE OF REDRESS.  P.
434. 

(B)  THE CHARACTER OF THE RIGHT REMAINS FEDERAL, ALTHOUGH STATE LAW
QUESTIONS MUST ALSO BE DECIDED.  P. 434. 

(C)  THE DETERMINATION OF A REMEDY IN THIS CASE MUST AWAIT TRIAL ON
THE MERITS.  P. 435. 

J.I. CASE CO. ET AL. V. BORAK. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL ACTION BROUGHT BY RESPONDENT, A STOCKHOLDER OF
PETITIONER J.I. CASE COMPANY, CHARGING DEPRIVATION OF THE PRE-EMPTIVE
RIGHTS OF RESPONDENT AND OTHER SHAREHOLDERS BY REASON OF A MERGER
BETWEEN CASE AND THE AMERICAN TRACTOR CORPORATION.  IT IS ALLEGED THAT
THE MERGER WAS EFFECTED THROUGH THE CIRCULATION OF A FALSE AND
MISLEADING PROXY STATEMENT BY THOSE PROPOSING THE MERGER.  THE
COMPLAINT WAS IN TWO COUNTS, THE FIRST BASED ON DIVERSITY AND CLAIMING
A BREACH OF THE DIRECTORS' FIDUCIARY DUTY TO THE STOCKHOLDERS.  THE
SECOND COUNT ALLEGED A VIOLATION OF SEC 14(A) (FN1) OF THE SECURITIES
EXCHANGE ACT OF 1934 WITH REFERENCE TO THE PROXY SOLICITATION
MATERIAL.  THE TRIAL COURT HELD THAT AS TO THIS COUNT IT HAD NO POWER
TO REDRESS THE ALLEGED VIOLATIONS OF THE ACT BUT WAS LIMITED SOLELY TO
THE GRANTING OF DECLARATORY RELIEF THEREON UNDER SEC 27 OF THE ACT. 
(FN2)  THE COURT HELD WIS.  STAT., 1961, SEC 180.405(4), WHICH REQUIRES
POSTING SECURITY FOR EXPENSES IN DERIVATIVE ACTIONS, APPLICABLE TO BOTH
COUNTS, EXCEPT THAT PORTION OF COUNT 2 REQUESTING DECLARATORY RELIEF. 
IT ORDERED THE RESPONDENT TO FURNISH A BOND IN THE AMOUNT OF $75,000
THEREUNDER AND, UPON HIS FAILURE TO DO SO, DISMISSED THE COMPLAINT,
SAVE THAT PART OF COUNT 2 SEEKING A DECLARATORY JUDGMENT.  ON
INTERLOCUTORY APPEAL THE COURT OF APPEALS REVERSED ON BOTH COUNTS,
HOLDING THAT THE DISTRICT COURT HAD THE POWER TO GRANT REMEDIAL RELIEF
AND THAT THE WISCONSIN STATUTE WAS NOT APPLICABLE.  317 F.2D 838.  WE
GRANTED CERTIORARI.  375 U.S. 901.  WE CONSIDER ONLY THE QUESTION OF
WHETHER SEC 27 OF THE ACT AUTHORIZES A FEDERAL CAUSE OF ACTION FOR
RESCISSION OR DAMAGES TO A CORPORATE STOCKHOLDER WITH RESPECT TO A
CONSUMMATED MERGER WHICH WAS AUTHORIZED PURSUANT TO THE USE OF A PROXY
STATEMENT ALLEGED TO CONTAIN FALSE AND MISLEADING STATEMENTS VIOLATIVE
OF SEC 14(A) OF THE ACT.  THIS BEING THE SOLE QUESTION RAISED BY
PETITIONERS IN THEIR PETITION FOR CERTIORARI, WE WILL NOT CONSIDER
OTHER QUESTIONS SUBSEQUENTLY PRESENTED.  SEE SUPREME COURT RULE
40(1)(D)(2); (FN3) LOCAL 1976, UNITED BROTHERHOOD OF CARPENTERS V.
LABOR BOARD, 357 U.S. 93, 96 (1958); IRVINE V. CALIFORNIA, 347 U.S.
128, 129-130 (1954). 

                      I. 

RESPONDENT, THE OWNER OF 2,000 SHARES OF COMMON STOCK OF CASE
ACQUIRED PRIOR TO THE MERGER, BROUGHT THIS SUIT BASED ON DIVERSITY
JURISDICTION SEEKING TO ENJOIN A PROPOSED MERGER BETWEEN CASE AND THE
AMERICAN TRACTOR CORPORATION (ATC) ON VARIOUS GROUNDS, INCLUDING BREACH
OF THE FIDUCIARY DUTIES OF THE CASE DIRECTORS, SELF-DEALING AMONG THE
MANAGEMENT OF CASE AND ATC AND MISREPRESENTATIONS CONTAINED IN THE
MATERIAL CIRCULATED TO OBTAIN PROXIES.  THE INJUNCTION WAS DENIED AND
THE MERGER WAS THEREAFTER CONSUMMATED.  SUBSEQUENTLY SUCCESSIVE AMENDED
COMPLAINTS WERE FILED AND THE CASE WAS HEARD ON THE AFORESAID TWO-COUNT
COMPLAINT.  THE CLAIMS PERTINENT TO THE ASSERTED VIOLATION OF THE
SECURITIES EXCHANGE ACT WERE PREDICATED ON DIVERSITY JURISDICTION AS
WELL AS ON SEC 27 OF THE ACT.  THEY ALLEGED:  THAT PETITIONERS, OR
THEIR PREDECESSORS, SOLICITED OR PERMITTED THEIR NAMES TO BE USED IN
THE SOLICITATION OF PROXIES OF CASE STOCKHOLDERS FOR USE AT A SPECIAL
STOCKHOLDERS' MEETING AT WHICH THE PROPOSED MERGER WITH ATC WAS TO BE
VOTED UPON; THAT THE PROXY SOLICITATION MATERIAL SO CIRCULATED WAS
FALSE AND MISLEADING IN VIOLATION OF SEC 14(A) OF THE ACT AND RULE 14A
9 WHICH THE COMMISSION HAD PROMULGATED THEREUNDER; (FN4) THAT THE
MERGER WAS APPROVED AT THE MEETING BY A SMALL MARGIN OF VOTES AND WAS
THEREAFTER CONSUMMATED; THAT THE MERGER WOULD NOT HAVE BEEN APPROVED
BUT FOR THE FALSE AND MISLEADING STATEMENTS IN THE PROXY SOLICITATION
MATERIAL; AND THAT CASE STOCKHOLDERS WERE DAMAGED THEREBY.  THE
RESPONDENT SOUGHT JUDGMENT HOLDING THE MERGER VOID AND DAMAGES FOR
HIMSELF AND ALL OTHER STOCKHOLDERS SIMILARLY SITUATED, AS WELL AS SUCH
FURTHER RELIEF "AS EQUITY SHALL REQUIRE."  THE DISTRICT COURT RULED
THAT THE WISCONSIN SECURITY FOR EXPENSES STATUTE DID NOT APPLY TO COUNT
2 SINCE IT AROSE UNDER FEDERAL LAW.  HOWEVER, THE COURT FOUND THAT ITS
JURISDICTION WAS LIMITED TO DECLARATORY RELIEF IN A PRIVATE, AS OPPOSED
TO A GOVERNMENT, SUIT ALLEGING VIOLATION OF SEC 14(A) OF THE ACT. 
SINCE THE ADDITIONAL EQUITABLE RELIEF AND DAMAGES PRAYED FOR BY THE
RESPONDENT WOULD, THEREFORE, BE AVAILABLE ONLY UNDER STATE LAW, IT
RULED THOSE CLAIMS SUBJECT TO THE SECURITY FOR EXPENSES STATUTE.  AFTER
SETTING THE AMOUNT OF SECURITY AT $75,000 AND UPON THE REPRESENTATION
OF COUNSEL THAT THE SECURITY WOULD NOT BE POSTED, THE COURT DISMISSED
THE COMPLAINT, SAVE THAT PORTION OF COUNT 2 SEEKING A DECLARATION THAT
THE PROXY SOLICITATION MATERIAL WAS FALSE AND MISLEADING AND THAT THE
PROXIES AND, HENCE, THE MERGER WERE VOID. 

                         II. 

IT APPEARS CLEAR THAT PRIVATE PARTIES HAVE A RIGHT UNDER SEC 27 TO
BRING SUIT FOR VIOLATION OF SEC 14(A) OF THE ACT.  INDEED, THIS SECTION
SPECIFICALLY GRANTS THE APPROPRIATE DISTRICT COURTS JURISDICTION OVER
"ALL SUITS IN EQUITY AND ACTIONS AT LAW BROUGHT TO ENFORCE ANY
LIABILITY OR DUTY CREATED" UNDER THE ACT.  THE PETITIONERS MAKE NO
CONCESSIONS, HOWEVER, EMPHASIZING THAT CONGRESS MADE NO SPECIFIC
REFERENCE TO A PRIVATE RIGHT OF ACTION IN SEC 14(A); THAT, IN ANY
EVENT, THE RIGHT WOULD NOT EXTEND TO DERIVATIVE SUITS AND SHOULD BE
LIMITED TO PROSPECTIVE RELIEF ONLY.  IN ADDITION, SOME OF THE
PETITIONERS ARGUE THAT THE MERGER CAN BE DISSOLVED ONLY IF IT WAS
FRAUDULENT OR NON-BENEFICIAL, ISSUES UPON WHICH THE PROXY MATERIAL
WOULD NOT BEAR.  BUT THE CAUSAL RELATIONSHIP OF THE PROXY MATERIAL AND
THE MERGER ARE QUESTIONS OF FACT TO BE RESOLVED AT TRIAL, NOT HERE.  WE
THEREFORE DO NOT DISCUSS THIS POINT FURTHER. 

                                            III. 

WHILE THE RESPONDENT CONTENDS THAT HIS COUNT 2 CLAIM IS NOT A
DERIVATIVE ONE, WE NEED NOT EMBRACE THAT VIEW, FOR WE BELIEVE THAT A
RIGHT OF ACTION EXISTS AS TO BOTH DERIVATIVE AND DIRECT CAUSES. 

THE PURPOSE OF SEC 14(A) IS TO PREVENT MANAGEMENT OR OTHERS FROM
OBTAINING AUTHORIZATION FOR CORPORATE ACTION BY MEANS OF DECEPTIVE OR
INADEQUATE DISCLOSURE IN PROXY SOLICITATION.  THE SECTION STEMMED FROM
THE CONGRESSIONAL BELIEF THAT "FAIR CORPORATE SUFFRAGE IS AN IMPORTANT
RIGHT THAT SHOULD ATTACH TO EVERY EQUITY SECURITY BOUGHT ON A PUBLIC
EXCHANGE."  H.R. REP.  NO. 1383, 73D CONG., 2D SESS., 13.  IT WAS
INTENDED TO "CONTROL THE CONDITIONS UNDER WHICH PROXIES MAY BE
SOLICITED WITH A VIEW TO PREVENTING THE RECURRENCE OF ABUSES WHICH  ...
HAD FRUSTRATED THE FREE EXERCISE OF THE VOTING RIGHTS OF
STOCKHOLDERS."  ID., AT 14.  "TOO OFTEN PROXIES ARE SOLICITED WITHOUT
EXPLANATION TO THE STOCKHOLDER OF THE REAL NATURE OF THE QUESTIONS FOR
WHICH AUTHORITY TO CAST HIS VOTE IS SOUGHT."  S. REP. NO. 792, 73D
CONG., 2D SESS., 12.  THESE BROAD REMEDIAL PURPOSES ARE EVIDENCED IN
THE LANGUAGE OF THE SECTION WHICH MAKES IT "UNLAWFUL FOR ANY PERSON
...  TO SOLICIT OR TO PERMIT THE USE OF HIS NAME TO SOLICIT ANY PROXY
OR CONSENT OR AUTHORIZATION IN RESPECT OF ANY SECURITY  ...  REGISTERED
ON ANY NATIONAL SECURITIES EXCHANGE IN CONTRAVENTION OF SUCH RULES AND
REGULATIONS AS THE COMMISSION MAY PRESCRIBE AS NECESSARY OR APPROPRIATE
IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF INVESTORS."  WHILE THIS
LANGUAGE MAKES NO SPECIFIC REFERENCE TO A PRIVATE RIGHT OF ACTION,
AMONG ITS CHIEF PURPOSES IS "THE PROTECTION OF INVESTORS," WHICH
CERTAINLY IMPLIES THE AVAILABILITY OF JUDICIAL RELIEF WHERE NECESSARY
TO ACHIEVE THAT RESULT. 

THE INJURY WHICH A STOCKHOLDER SUFFERS FROM CORPORATE ACTION PURSUANT
TO A DECEPTIVE PROXY SOLICITATION ORDINARILY FLOWS FROM THE DAMAGE DONE
THE CORPORATION, RATHER THAN FROM THE DAMAGE INFLICTED DIRECTLY UPON
THE STOCKHOLDER.  THE DAMAGE SUFFERED RESULTS NOT FROM THE DECEIT
PRACTICED ON HIM ALONE BUT RATHER FROM THE DECEIT PRACTICED ON THE
STOCKHOLDERS AS A GROUP.  TO HOLD THAT DERIVATIVE ACTIONS ARE NOT
WITHIN THE SWEEP OF THE SECTION WOULD THEREFORE BE TANTAMOUNT TO A
DENIAL OF PRIVATE RELIEF.  PRIVATE ENFORCEMENT OF THE PROXY RULES
PROVIDES A NECESSARY SUPPLEMENT TO COMMISSION ACTION.  AS IN ANTITRUST
TREBLE DAMAGE LITIGATION, THE POSSIBILITY OF CIVIL DAMAGES OR
INJUNCTIVE RELIEF SERVES AS A MOST EFFECTIVE WEAPON IN THE ENFORCEMENT
OF THE PROXY REQUIREMENTS.  THE COMMISSION ADVISES THAT IT EXAMINES
OVER 2,000 PROXY STATEMENTS ANNUALLY AND EACH OF THEM MUST NECESSARILY
BE EXPEDITED.  TIME DOES NOT PERMIT AN INDEPENDENT EXAMINATION OF THE
FACTS SET OUT IN THE PROXY MATERIAL AND THIS RESULTS IN THE
COMMISSION'S ACCEPTANCE OF THE REPRESENTATIONS CONTAINED THEREIN AT
THEIR FACE VALUE, UNLESS CONTRARY TO OTHER MATERIAL ON FILE WITH IT.
INDEED, ON THE ALLEGATIONS OF RESPONDENT'S COMPLAINT, THE PROXY
MATERIAL FAILED TO DISCLOSE ALLEGED UNLAWFUL MARKET MANIPULATION OF THE
STOCK OF ATC, AND THIS UNLAWFUL MANIPULATION WOULD NOT HAVE BEEN
APPARENT TO THE COMMISSION UNTIL AFTER THE MERGER. 

WE, THEREFORE, BELIEVE THAT UNDER THE CIRCUMSTANCES HERE IT IS THE
DUTY OF THE COURTS TO BE ALERT TO PROVIDE SUCH REMEDIES AS ARE
NECESSARY TO MAKE EFFECTIVE THE CONGRESSIONAL PURPOSE.  AS WAS SAID IN
SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S. 173, 176 (1942): 

"WHEN A FEDERAL STATUTE CONDEMNS AN ACT AS UNLAWFUL, THE EXTENT AND
NATURE OF THE LEGAL CONSEQUENCES OF THE CONDEMNATION, THOUGH LEFT BY
THE STATUTE TO JUDICIAL DETERMINATION, ARE NEVERTHELESS FEDERAL
QUESTIONS, THE ANSWERS TO WHICH ARE TO BE DERIVED FROM THE STATUTE AND
THE FEDERAL POLICY WHICH IT HAS ADOPTED." 

SEE ALSO TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN,
323 U.S. 210, 213 (1944); DEITRICK V. GREANEY, 309 U.S. 190, 201
(1940).  IT IS FOR THE FEDERAL COURTS "TO ADJUST THEIR REMEDIES SO AS
TO GRANT THE NECESSARY RELIEF" WHERE FEDERALLY SECURED RIGHTS ARE
INVADED.  "AND IT IS ALSO WELL SETTLED THAT WHERE LEGAL RIGHTS HAVE
BEEN INVADED, AND A FEDERAL STATUTE PROVIDES FOR A GENERAL RIGHT TO SUE
FOR SUCH INVASION, FEDERAL COURTS MAY USE ANY AVAILABLE REMEDY TO MAKE
GOOD THE WRONG DONE."  BELL V. HOOD, 327 U.S. 678, 684 (1946).  SECTION
27 GRANTS THE DISTRICT COURTS JURISDICTION "OF ALL SUITS IN EQUITY AND
ACTIONS AT LAW BROUGHT TO ENFORCE ANY LIABILITY OR DUTY CREATED BY THIS
TITLE  ...  ."  IN PASSING ON ALMOST IDENTICAL LANGUAGE FOUND IN THE
SECURITIES ACT OF 1933, THE COURT FOUND THE WORDS ENTIRELY SUFFICIENT
TO FASHION A REMEDY TO RESCIND A FRAUDULENT SALE, SECURE RESTITUTION
AND EVEN TO ENFORCE THE RIGHT TO RESTITUTION AGAINST A THIRD PARTY
HOLDING ASSETS OF THE VENDOR.  DECKERT V. INDEPENDENCE SHARES CORP.,
311 U.S. 282 (1940).  THIS SIGNIFICANT LANGUAGE WAS USED: 

"THE POWER TO ENFORCE IMPLIES THE POWER TO MAKE EFFECTIVE THE RIGHT
OF RECOVERY AFFORDED BY THE ACT.  AND THE POWER TO MAKE THE RIGHT OF
RECOVERY EFFECTIVE IMPLIES THE POWER TO UTILIZE ANY OF THE PROCEDURES
OR ACTIONS NORMALLY AVAILABLE TO THE LITIGANT ACCORDING TO THE
EXIGENCIES OF THE PARTICULAR CASE."  AT 288. 

SEE ALSO PORTER V. WARNER HOLDING CO., 328 U.S. 395 (1946); MITCHELL
V. ROBERT DEMARIO JEWELRY, INC., 361 U.S. 288 (1960); SCHINE CHAIN
THEATRES, INC., V. UNITED STATES, 334 U.S. 110 (1948). 

NOR DO WE FIND MERIT IN THE CONTENTION THAT SUCH REMEDIES ARE LIMITED
TO PROSPECTIVE RELIEF.  THIS WAS THE POSITION TAKEN IN DANN V.
STUDEBAKER-PACKARD CORP., 288 F.2D 201, WHERE IT WAS HELD THAT THE
"PREPONDERANCE OF QUESTIONS OF STATE LAW WHICH WOULD HAVE TO BE
INTERPRETED AND APPLIED IN ORDER TO GRANT THE RELIEF SOUGHT  ...  IS SO
GREAT THAT THE FEDERAL QUESTION INVOLVED  ...  IS REALLY NEGLIGIBLE IN
COMPARISON."  AT 214.  BUT WE BELIEVE THAT THE OVERRIDING FEDERAL LAW
APPLICABLE HERE WOULD, WHERE THE FACTS REQUIRED, CONTROL THE
APPROPRIATENESS OF REDRESS DESPITE THE PROVISIONS OF STATE CORPORATION
LAW, FOR IT "IS NOT UNCOMMON FOR FEDERAL COURTS TO FASHION FEDERAL LAW
WHERE FEDERAL RIGHTS ARE CONCERNED."  TEXTILE WORKERS V. LINCOLN MILLS,
353 U.S. 448, 457 (1957).  IN ADDITION, THE FACT THAT QUESTIONS OF
STATE LAW MUST BE DECIDED DOES NOT CHANGE THE CHARACTER OF THE RIGHT;
IT REMAINS FEDERAL.  AS CHIEF JUSTICE MARSHALL SAID IN OSBORN V. BANK
OF THE UNITED STATES, 9 WHEAT.  738 (1824): 

"IF THIS WERE SUFFICIENT TO WITHDRAW A CASE FROM THE JURISDICTION OF
THE FEDERAL COURTS, ALMOST EVERY CASE, ALTHOUGH INVOLVING THE
CONSTRUCTION OF A LAW, WOULD BE WITHDRAWN  ...  ."  AT 819-820. 

MOREOVER, IF FEDERAL JURISDICTION WERE LIMITED TO THE GRANTING OF
DECLARATORY RELIEF, VICTIMS OF DECEPTIVE PROXY STATEMENTS WOULD BE
OBLIGED TO GO INTO STATE COURTS FOR REMEDIAL RELIEF.  AND IF THE LAW OF
THE STATE HAPPENED TO ATTACH NO RESPONSIBILITY TO THE USE OF MISLEADING
PROXY STATEMENTS, THE WHOLE PURPOSE OF THE SECTION MIGHT BE
FRUSTRATED.  FURTHERMORE, THE HURDLES THAT THE VICTIM MIGHT FACE (SUCH
AS SEPARATE SUITS, AS CONTEMPLATED BY DANN V. STUDEBAKER-PACKARD CORP.,
SUPRA, SECURITY FOR EXPENSES STATUTES, BRINGING IN ALL PARTIES
NECESSARY FOR COMPLETE RELIEF, ETC.) MIGHT WELL PROVE INSUPERABLE TO
EFFECTIVE RELIEF. 
IV. 

OUR FINDING THAT FEDERAL COURTS HAVE THE POWER TO GRANT ALL NECESSARY
REMEDIAL RELIEF IS NOT TO BE CONSTRUED AS ANY INDICATION OF WHAT WE
BELIEVE TO BE THE NECESSARY AND APPROPRIATE RELIEF IN THIS CASE.  WE
ARE CONCERNED HERE ONLY WITH A DETERMINATION THAT FEDERAL JURISDICTION
FOR THIS PURPOSE DOES EXIST.  WHATEVER REMEDY IS NECESSARY MUST AWAIT
THE TRIAL ON THE MERITS. 

THE OTHER CONTENTIONS OF THE PETITIONERS ARE DENIED.  AFFIRMED. 

FN1  SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934, 48 STAT.
895, 15 U.S.C. SEC 78NA), PROVIDES:  "IT SHALL BE UNLAWFUL FOR ANY
PERSON, BY THE USE OF THE MAILS OR BY ANY MEANS OR INSTRUMENTALITY OF
INTERSTATE COMMERCE OR OF ANY FACILITY OF ANY NATIONAL SECURITIES
EXCHANGE OR OTHERWISE TO SOLICIT OR TO PERMIT THE USE OF HIS NAME TO
SOLICIT ANY PROXY OR CONSENT OR AUTHORIZATION IN RESPECT OF ANY
SECURITY (OTHER THAN AN EXEMPTED SECURITY) REGISTERED ON ANY NATIONAL
SECURITIES EXCHANGE IN CONTRAVENTION OF SUCH RULES AND REGULATIONS AS
THE SECURITIES AND EXCHANGE COMMISSION MAY PRESCRIBE AS NECESSARY OR
APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF
INVESTORS." 

FN2  SECTION 27 OF THE ACT, 48 STAT. 902-903, 15 U.S.C. SEC 78AA,
PROVIDES IN PART:  "THE DISTRICT COURTS OF THE UNITED STATES, THE
SUPREME COURT OF THE DISTRICT OF COLUMBIA, AND THE UNITED STATES COURTS
OF ANY TERRITORY OR OTHER PLACE SUBJECT TO THE JURISDICTION OF THE
UNITED STATES SHALL HAVE EXCLUSIVE JURISDICTION OF VIOLATIONS OF THIS
TITLE OR THE RULES AND REGULATIONS THEREUNDER, AND OF ALL SUITS IN
EQUITY AND ACTIONS AT LAW BROUGHT TO ENFORCE ANY LIABILITY OR DUTY
CREATED BY THIS TITLE OR THE RULES AND REGULATIONS THEREUNDER.  ANY
CRIMINAL PROCEEDING MAY BE BROUGHT IN THE DISTRICT WHEREIN ANY ACT OR
TRANSACTION CONSTITUTING THE VIOLATION OCCURRED.  ANY SUIT OR ACTION TO
ENFORCE ANY LIABILITY OR DUTY CREATED BY THIS TITLE OR RULES AND
REGULATIONS THEREUNDER, OR TO ENJOIN ANY VIOLATION OF SUCH TITLE OR
RULES AND REGULATIONS, MAY BE BROUGHT IN ANY SUCH DISTRICT OR IN THE
DISTRICT WHEREIN THE DEFENDANT IS FOUND OR IS AN INHABITANT OR
TRANSACTS BUSINESS, 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." 

FN3  "THE PHRASING OF THE QUESTIONS PRESENTED NEED NOT BE IDENTICAL
WITH THAT SET FORTH IN THE JURISDICTIONAL STATEMENT OR THE PETITION FOR
CERTIORARI, BUT THE BRIEF MAY NOT RAISE ADDITIONAL QUESTIONS OR CHANGE
THE SUBSTANCE OF THE QUESTIONS ALREADY PRESENTED IN THOSE DOCUMENTS. 
QUESTIONS NOT PRESENTED ACCORDING TO THIS PARAGRAPH WILL BE
DISREGARDED, SAVE AS THE COURT, AT ITS OPTION, MAY NOTICE A PLAIN ERROR
NOT PRESENTED." 

FN4  17 CFR SEC 240.14A-9 PROVIDES:  "FALSE OR MISLEADING
STATEMENTS.  NO SOLICITATION SUBJECT TO SECS 240.14A-1 TO 240.14A-10
SHALL BE MADE BY MEANS OF ANY PROXY STATEMENT, FORM OF PROXY, NOTICE OF
MEETING, OR OTHER COMMUNICATION WRITTEN OR ORAL CONTAINING ANY
STATEMENT WHICH AT THE TIME AND IN THE LIGHT OF THE CIRCUMSTANCES UNDER
WHICH IT IS MADE, IS FALSE OR MISLEADING WITH RESPECT TO ANY MATERIAL
FACT, OR WHICH OMITS TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO
MAKE THE STATEMENTS THEREIN NOT FALSE OR MISLEADING OR NECESSARY TO
CORRECT ANY STATEMENT IN ANY EARLIER COMMUNICATION WITH RESPECT TO THE
SOLICITATION OF A PROXY FOR THE SAME MEETING OR SUBJECT MATTER WHICH
HAS BECOME FALSE OR MISLEADING." 
..END :























GENERAL MOTORS CORP. V. WASHINGTON 377 U.S. 436 


NO. 115.  ARGUED FEBRUARY 26, 1964.  - DECIDED JUNE 8, 1964.  - 60 WASH.
2D 862, 376 P.2D 843, AFFIRMED. 


APPELLANT, A DELAWARE CORPORATION, MANUFACTURES MOTOR VEHICLES AND
PARTS OUTSIDE THE STATE OF WASHINGTON SOME OF WHICH IT SELLS TO RETAIL
DEALERS IN THAT STATE.  IT OPERATES THROUGH SUBSTANTIALLY INDEPENDENT
"DIVISIONS," HERE THREE AUTOMOTIVE AND ONE PARTS, ALL BUT THE LATTER
MAINTAINING ZONE OFFICES IN OREGON WHICH HANDLE SALES AND OTHER ORDERS
FROM DEALERS IN WASHINGTON.  SALES ORIGINATE THROUGH PROJECTION OF
ORDERS OF ESTIMATED NEEDS, FOR PRACTICAL PURPOSES "A PURCHASE ORDER,"
WORKED OUT BETWEEN THE DEALERS AND THE CORPORATION'S DISTRICT MANAGERS
WHO CONDUCT BUSINESS FROM THEIR HOMES IN WASHINGTON AND CONSTANTLY CALL
UPON DEALERS, ASSISTING IN SALES PROMOTION, TRAINING OF SALESMEN, ETC.;
SERVICE CONTACTS ARE MAINTAINED THROUGH SERVICE REPRESENTATIVES.  ONE
AUTOMOTIVE DIVISION HAS A SMALL BRANCH OFFICE IN WASHINGTON TO EXPEDITE
DELIVERY OF CARS FOR DEALERS IN ALL BUT NINE COUNTIES.  DURING THE
PERTINENT PERIOD, THE AUTOMOTIVE AND PARTS DIVISIONS HAD ABOUT 40
EMPLOYEES RESIDENT OR PRINCIPALLY EMPLOYED IN THE STATE.  IN ADDITION,
OUT-OF-STATE ZONE OFFICE PERSONNEL VISITED DEALERS IN THE STATE FROM
TIME TO TIME.  THE PARTS DIVISION MAINTAINS WAREHOUSES IN OREGON AND
WASHINGTON FROM WHICH ORDERS FROM WASHINGTON DEALERS ARE FILLED (THOUGH
ONLY THE TAX ON OREGON SHIPMENTS IS PROTESTED).  APPELLANT CLAIMS THAT
ITS PRODUCTS TAXED BY WASHINGTON ARE MANUFACTURED IN ST. LOUIS, WHICH
LEVIES A LICENSE TAX MEASURED BY SALES BEFORE SHIPMENT.  THIS
LITIGATION ARISES FROM APPLICATION OF WASHINGTON'S TAX ON THE PRIVILEGE
OF DOING BUSINESS IN THE STATE MEASURED BY THE WHOLESALE SALES OF
APPELLANT WITHIN THE STATE.  APPELLANT CONTENDED THAT IT CONSTITUTED A
TAX ON UNAPPORTIONED GROSS RECEIPTS IN VIOLATION OF THE COMMERCE AND
DUE PROCESS CLAUSES.  THE LOWER COURT UPHELD THIS VIEW EXCEPT FOR SOME
OF THE BUSINESS CONDUCTED FROM APPELLANT'S LOCAL BRANCH OFFICE.  THE
STATE SUPREME COURT REVERSED, HOLDING THAT ALL APPELLANT'S ACTIVITIES
IN THE STATE WERE SUBJECT TO THE TAX WHICH WAS MEASURED BY ITS
WHOLESALE SALES AND WAS FOUND TO BEAR A REASONABLE RELATION TO
APPELLANT'S IN-STATE ACTIVITIES.  HELD: 

1.  THOUGH INTERSTATE COMMERCE CANNOT BE SUBJECTED TO THE BURDENS OF
MULTIPLE TAXATION, A TAX MEASURED BY GROSS RECEIPTS IS CONSTITUTIONALLY
PROPER IF FAIRLY APPORTIONED.  PP. 439-440. 

2.  THE BURDEN OF ESTABLISHING EXEMPTION FROM A TAX RESTS UPON A
TAXPAYER CLAIMING IMMUNITY THEREFROM.  NORTON CO. V. DEPARTMENT OF
REVENUE, 340 U.S. 534, FOLLOWED.  P. 441. 

3.  THE BUNDLE OF APPELLANT'S CORPORATE ACTIVITIES OR "INCIDENTS" IN
WASHINGTON AFFORDED THE STATE A PROPER BASIS FOR IMPOSING A TAX.  PP.
442-448. 

4.  THE EVIDENCE WAS SUFFICIENT TO WARRANT THE FINDING BY THE STATE
COURT OF A NEXUS BETWEEN APPELLANT'S IN-STATE ACTIVITIES AND ITS SALES
THERE, ESPECIALLY WHERE ITS TAXABLE BUSINESS WAS SO ENMESHED WITH WHAT
IT CLAIMED WAS NONTAXABLE.  P. 448. 

5.  THIS COURT DOES NOT PASS UPON APPELLANT'S CLAIM OF "MULTIPLE
TAXATION" IN VIOLATION OF THE COMMERCE CLAUSE BECAUSE APPELLANT DID NOT
SHOW WHAT DEFINITE BURDEN IN A CONSTITUTIONAL SENSE THE ST. LOUIS TAX
PLACES ON THE IDENTICAL INTERSTATE SHIPMENTS BY WHICH WASHINGTON
MEASURES ITS TAX OR THAT OREGON LEVIES ANY TAX ON APPELLANT'S ACTIVITY
BEARING ON WASHINGTON SALES.  PP. 448-449. 

GENERAL MOTORS CORP. V. WASHINGTON ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL TESTS THE CONSTITUTIONAL VALIDITY, UNDER THE COMMERCE AND
DUE PROCESS CLAUSES, OF WASHINGTON'S TAX IMPOSED UPON THE PRIVILEGE OF
ENGAGING IN BUSINESS ACTIVITIES WITHIN THE STATE.  (FN1)  THE TAX IS
MEASURED BY THE APPELLANT'S GROSS WHOLESALE SALES OF MOTOR VEHICLES,
PARTS AND ACCESSORIES DELIVERED IN THE STATE.  APPELLANT CLAIMS THAT
THE TAX IS LEVIED ON UNAPPORTIONED GROSS RECEIPTS FROM SUCH SALES AND
IS, THEREFORE, A TAX ON THE PRIVILEGE OF ENGAGING IN INTERSTATE
COMMERCE; IS INHERENTLY DISCRIMINATORY; RESULTS IN THE IMPOSITION OF A
MULTIPLE TAX BURDEN; AND IS A DEPRIVATION OF PROPERTY WITHOUT DUE
PROCESS OF LAW.  THE WASHINGTON SUPERIOR COURT HELD THAT THE PRESENCE
OF A BRANCH OFFICE IN SEATTLE RENDERED SOME OF THE CHEVROLET
TRANSACTIONS SUBJECT TO TAX, BUT, AS TO THE REMAINDER, HELD THAT THE
APPLICATION OF THE STATUTE WOULD BE REPUGNANT TO THE COMMERCE AND THE
DUE PROCESS CLAUSES OF THE UNITED STATES CONSTITUTION.  ON APPEAL, THE
SUPREME COURT OF WASHINGTON REVERSED THE LATTER FINDING, HOLDING THAT
ALL OF THE APPELLANT'S TRANSACTIONS WERE SUBJECT TO THE TAX ON THE
GROUND THAT THE TAX BORE A REASONABLE RELATION TO THE APPELLANT'S
ACTIVITIES WITHIN THE STATE.  60 WASH. 2D 862, 376 P.2D 843.  PROBABLE
JURISDICTION WAS NOTED.  374 U.S. 824.  WE HAVE CONCLUDED THAT THE TAX
IS LEVIED ON THE INCIDENTS OF A SUBSTANTIAL LOCAL BUSINESS IN
WASHINGTON AND IS CONSTITUTIONALLY VALID AND, THEREFORE, AFFIRM THE
JUDGMENT. 

         I. 

WE START WITH THE PROPOSITION THAT "IT WAS NOT THE PURPOSE OF THE
COMMERCE CLAUSE TO RELIEVE THOSE ENGAGED IN INTERSTATE COMMERCE FROM
THEIR JUST SHARE OF STATE TAX BURDEN EVEN THOUGH IT INCREASES THE COST
OF DOING THE BUSINESS."  WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303
U.S. 250, 254 (1938).   "EVEN INTERSTATE BUSINESS MUST PAY ITS WAY,"
POSTAL TELEGRAPH-CABLE CO. V. RICHMOND, 249 U.S. 252, 259 (1919), AS IS
EVIDENCED BY NUMEROUS OPINIONS OF THIS COURT.  FOR EXAMPLE, THE COURT
HAS APPROVED PROPERTY TAXES ON THE INSTRUMENTS EMPLOYED IN COMMERCE,
WESTERN UNION TELEGRAPH CO. V. ATTORNEY GENERAL, 125 U.S. 530 (1888);
ON PROPERTY DEVOTED TO INTERSTATE TRANSPORTATION FAIRLY APPORTIONED TO
ITS USE WITHIN THE STATE, PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141
U.S. 18 (1891); ON PROFITS DERIVED FROM FOREIGN OR INTERSTATE COMMERCE
BY WAY OF A NET INCOME TAX, WILLIAM E. PECK & CO. V. LOWE, 247 U.S. 165
(1918), AND UNITED STATES GLUE CO. V. OAK CREEK, 247 U.S. 321 (1918);
BY FRANCHISE TAXES, MEASURED BY THE NET INCOME OF A COMMERCIALLY
DOMICILED CORPORATION FROM INTERSTATE COMMERCE ATTRIBUTABLE TO BUSINESS
DONE IN THE STATE AND FAIRLY APPORTIONED, UNDERWOOD TYPEWRITER CO. V.
CHAMBERLAIN, 254 U.S. 113 (1920); BY A FRANCHISE TAX MEASURED ON A
PROPORTIONAL FORMULA ON PROFITS OF A UNITARY BUSINESS MANUFACTURING AND
SELLING ALE, "THE PROCESS OF MANUFACTURING RESULTING IN NO PROFITS
UNTIL IT ENDS IN SALES," BASS, RATCLIFF & GRETTON, LTD., V. STATE TAX
COMM'N, 266 U.S. 271, 282 (1924); BY A PERSONAL PROPERTY TAX BY A
DOMICILIARY STATE ON A FLEET OF AIRPLANES WHOSE HOME PORT WAS IN THE
TAXING STATE, DESPITE THE FACT THAT PERSONAL PROPERTY TAXES WERE PAID
ON PART OF THE FLEET IN OTHER STATES, NORTHWEST AIRLINES, INC., V.
MINNESOTA, 322 U.S. 292 (1944); BY A NET INCOME TAX ON REVENUES DERIVED
FROM INTERSTATE COMMERCE WHERE FAIRLY APPORTIONED TO BUSINESS
ACTIVITIES WITHIN THE STATE, NORTHWESTERN STATES PORTLAND CEMENT CO. V.
MINNESOTA, 358 U.S. 450 (1959); AND BY A FRANCHISE TAX LEVIED ON AN
EXPRESS COMPANY, IN LIEU OF TAXES UPON INTANGIBLES OR ROLLING STOCK,
MEASURED BY GROSS RECEIPTS, FAIRLY APPORTIONED, AND DERIVED FROM
TRANSPORTATION WITHIN THE STATE, RAILWAY EXPRESS AGENCY, INC., V.
VIRGINIA, 358 U.S. 434 (1959). 

HOWEVER, LOCAL TAXES MEASURED BY GROSS RECEIPTS FROM INTERSTATE
COMMERCE HAVE NOT ALWAYS FARED AS WELL.  BECAUSE EVERY STATE HAS EQUAL
RIGHTS WHEN TAXING THE COMMERCE IT TOUCHES, THERE EXISTS THE DANGER
THAT SUCH TAXES CAN IMPOSE CUMULATIVE BURDENS UPON INTERSTATE
TRANSACTIONS WHICH ARE NOT PRESENTED TO LOCAL COMMERCE.  CF. MICHIGAN
WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S. 157, 170 (1954);
PHILADELPHIA & SOUTHERN S.S. CO. V. PENNSYLVANIA, 122 U.S. 326, 346
(1887).  SUCH BURDENS WOULD DESTROY INTERSTATE COMMERCE AND ENCOURAGE
THE RE-ERECTION OF THOSE TRADE BARRIERS WHICH MADE THE COMMERCE CLAUSE
NECESSARY.  CF. BALDWIN V. G.A.F. SEELIG, INC., 294 U.S. 511, 521-522
(1935).  AND IN THIS CONNECTION, WE HAVE SPECIFICALLY HELD THAT
INTERSTATE COMMERCE CANNOT BE SUBJECTED TO THE BURDEN OF "MULTIPLE
TAXATION."  MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, SUPRA, AT
170.  NEVERTHELESS, AS WE HAVE SEEN, IT IS WELL ESTABLISHED THAT
TAXATION MEASURED BY GROSS RECEIPTS IS CONSTITUTIONALLY PROPER IF IT IS
FAIRLY APPORTIONED. 

A CAREFUL ANALYSIS OF THE CASES IN THIS FIELD TEACHES THAT THE
VALIDITY OF THE TAX RESTS UPON WHETHER THE STATE IS EXACTING A
CONSTITUTIONALLY FAIR DEMAND FOR THAT ASPECT OF INTERSTATE COMMERCE TO
WHICH IT BEARS A SPECIAL RELATION.  FOR OUR PURPOSES THE DECISIVE ISSUE
TURNS ON THE OPERATING INCIDENCE OF THE TAX.  IN OTHER WORDS, THE
QUESTION IS WHETHER THE STATE HAS EXERTED ITS POWER IN PROPER
PROPORTION TO APPELLANT'S ACTIVITIES WITHIN THE STATE AND TO
APPELLANT'S CONSEQUENT ENJOYMENT OF THE OPPORTUNITIES AND PROTECTIONS
WHICH THE STATE HAS AFFORDED.  WHERE, AS IN THE INSTANT CASE, THE
TAXING STATE IS NOT THE DOMICILIARY STATE, WE LOOK TO THE TAXPAYER'S
BUSINESS ACTIVITIES WITHIN THE STATE, I.E., THE LOCAL INCIDENTS, TO
DETERMINE IF THE GROSS RECEIPTS FROM SALES THEREIN MAY BE FAIRLY
RELATED TO THOSE ACTIVITIES.  AS WAS SAID IN WISCONSIN V. J.C. PENNEY
CO., 311 U.S. 435, 444 (1940), "THE SIMPLE BUT CONTROLLING QUESTION IS
WHETHER THE STATE HAS GIVEN ANYTHING FOR WHICH IT CAN ASK RETURN." 

HERE IT IS ADMITTED THAT GENERAL MOTORS HAS ENTERED THE STATE AND
ENGAGED IN ACTIVITIES THEREIN.  IN FACT, GENERAL MOTORS VOLUNTARILY
PAYS CONSIDERABLE TAXES ON ITS WASHINGTON OPERATIONS BUT CONTESTS THE
VALIDITY OF THE TAX LEVY ON FOUR OF ITS DIVISIONS, CHEVROLET, PONTIAC,
OLDSMOBILE AND GENERAL MOTORS PARTS.  UNDER THESE CIRCUMSTANCES
APPELLANT HAS THE BURDEN OF SHOWING THAT THE OPERATIONS OF THESE
DIVISIONS IN THE STATE ARE "DISSOCIATED FROM THE LOCAL BUSINESS AND
INTERSTATE IN NATURE.  THE GENERAL RULE, APPLICABLE HERE, IS THAT A
TAXPAYER CLAIMING IMMUNITY FROM A TAX HAS THE BURDEN OF ESTABLISHING
HIS EXEMPTION."  NORTON CO. V. DEPARTMENT OF REVENUE, 340 U.S. 534, 537
(1951).  AND, AS WE ALSO SAID IN THAT CASE, THIS BURDEN IS NOT MET: 

"BY SHOWING A FAIR DIFFERENCE OF OPINION WHICH AS AN ORIGINAL MATTER
MIGHT BE DECIDED DIFFERENTLY.   THIS CORPORATION, BY SUBMITTING ITSELF
TO THE TAXING POWER  ...  OF THE STATE, LIKEWISE SUBMITTED ITSELF TO
ITS JUDICIAL POWER TO CONSTRUE AND APPLY ITS TAXING STATUTE INSOFAR AS
IT KEEPS WITHIN CONSTITUTIONAL BOUNDS.  OF COURSE, IN CONSTITUTIONAL
CASES, WE HAVE POWER TO EXAMINE THE WHOLE RECORD TO ARRIVE AT AN
INDEPENDENT JUDGMENT AS TO WHETHER CONSTITUTIONAL RIGHTS HAVE BEEN
INVADED, BUT THAT DOES NOT MEAN THAT WE WILL RE-EXAMINE, AS A COURT OF
FIRST INSTANCE, FINDINGS OF FACT SUPPORTED BY SUBSTANTIAL EVIDENCE." 
AT 537-538. 

WITH THESE PRINCIPLES IN MIND, WE TURN TO THE FACTS. 

    II.

                         1.  GENERAL MOTORS' CORPORATE ORGANIZATION

                                    AND SALES OPERATION. 

GENERAL MOTORS IS A DELAWARE CORPORATION WHICH WAS ENGAGED IN
BUSINESS IN WASHINGTON DURING THE PERIOD OF TIME INVOLVED IN THIS CASE,
JANUARY 1, 1949, THROUGH JUNE 30, 1953.  CHEVROLET, PONTIAC, OLDSMOBILE
AND GENERAL MOTORS PARTS ARE DIVISIONS OF GENERAL MOTORS, BUT THEY
OPERATE SUBSTANTIALLY INDEPENDENTLY OF EACH OTHER.  THE CORPORATION
MANUFACTURES AUTOMOBILES, TRUCKS AND OTHER MERCHANDISE WHICH ARE SOLD
TO DEALERS IN WASHINGTON.  HOWEVER, ALL OF THESE ARTICLES ARE
MANUFACTURED IN OTHER STATES.  IN ORDER TO CARRY ON THE SALE, IN
WASHINGTON, OF THE PRODUCTS OF CHEVROLET, PONTIAC, OLDSMOBILE AND
GENERAL MOTORS PARTS, THE CORPORATION MAINTAINS AN ORGANIZATION OF
EMPLOYEES IN EACH OF THESE DIVISIONS ON A NATIONAL, REGIONAL AND
DISTRICT LEVEL.  DURING THE TAXING PERIOD IN QUESTION, THE STATE OF
WASHINGTON WAS LOCATED IN THE WESTERN REGION OF THE CORPORATION'S
NATIONAL ORGANIZATION AND EACH DIVISION, EXCEPT GENERAL MOTORS PARTS,
MAINTAINED A ZONE OFFICE AT PORTLAND, OREGON.  THESE ZONE OFFICES
SERVICED GENERAL MOTORS' OPERATIONS IN OREGON, WASHINGTON, IDAHO,
PORTIONS OF MONTANA AND WYOMING AND ALL OF THE THEN TERRITORY OF
ALASKA.  CHEVROLET DIVISION ALSO MAINTAINED A BRANCH OFFICE AT SEATTLE
WHICH WAS UNDER THE JURISDICTION OF THE PORTLAND ZONE OFFICE AND WHICH
RENDERED SPECIAL SERVICE TO ALL EXCEPT THE NINE SOUTHERN COUNTIES OF
WASHINGTON, WHICH WERE STILL SERVICED BY THE PORTLAND OFFICE.  THE ZONE
OFFICES OF EACH DIVISION WERE BROKEN DOWN INTO GEOGRAPHICAL DISTRICT
OFFICES AND IT IS IN THESE DISTRICTS THAT THE DEALERS, TO WHOM THE
CORPORATION SOLD ITS PRODUCTS FOR RE-SALE, WERE SELECTED AND LOCATED. 
(FN2)  THE ORDERS FOR THESE PRODUCTS WERE SENT BY THE DEALERS TO THE
ZONE OFFICE LOCATED AT PORTLAND.  THEY WERE ACCEPTED OR REJECTED THERE
OR AT THE FACTORY AND THE SALES WERE COMPLETED BY SHIPMENTS F.O.B. THE
FACTORIES. 

          2.  PERSONNEL RESIDING WITHIN THE STATE AND

                                  THEIR ACTIVITIES. 

THE SALES ORGANIZATIONS OF THE CHEVROLET, PONTIAC AND OLDSMOBILE
DIVISIONS WERE SIMILAR IN MOST RESPECTS.  THE ZONE MANAGER WAS LOCATED
IN PORTLAND AND HAD CHARGE OF THE SALES OPERATION.  HIS JOB WAS "TO
SECURE AND MAINTAIN A QUALITY DEALER ORGANIZATION  ...  TO ADMINISTER
AND PROMOTE PROGRAMS, PLANS AND PROCEDURES THAT WILL CAUSE THAT DEALER
ORGANIZATION TO GIVE  ...  THE BEST POSSIBLE BUSINESS REPRESENTATION IN
THIS AREA."  R. 76.  THE DISTRICT MANAGERS LIVED WITHIN THE STATE OF
WASHINGTON AND THEIR JOBS WERE "THE MAINTENANCE OF A QUALITY
ORGANIZATION - DEALER ORGANIZATION - AND THE FOLLOW-THROUGH AND
ADMINISTRATION OF PROGRAMS, PLANS AND PROCEDURES WITHIN THEIR DISTRICT,
THAT WILL HELP TO DEVELOP THE DEALER ORGANIZATION, FOR THE BEST
POSSIBLE FINANCIAL AND SALES RESULTS."  R. 109.  WHILE HE HAD NO OFFICE
WITHIN THE STATE, THE DISTRICT MANAGER OPERATED FROM HIS HOME WHERE HE
RECEIVED MAIL AND TELEPHONE CALLS AND OTHERWISE CARRIED ON THE
CORPORATION'S BUSINESS.   HE CALLED UPON EACH DEALER IN HIS DISTRICT ON
AN AVERAGE OF AT LEAST ONCE A MONTH, AND OFTEN SAW THE LARGER DEALERS
WEEKLY.  A DISTRICT MANAGER HAD FROM 12 TO 30 DEALERS UNDER HIS
SUPERVISION AND FUNCTIONED AS THE ZONE MANAGER'S DIRECT CONTACT WITH
THESE DEALERS, ACTING "IN A SUPERVISORY OR ADVISORY CAPACITY TO SEE
THAT THEY HAVE THE PROPER SALES ORGANIZATION AND TO ACQUAINT THEM WITH
THE DIVISIONAL SALES POLICIES AND PROMOTIONAL AND TRAINING PLANS TO
IMPROVE THE SELLING ABILITY OF THE SALES ORGANIZATION."  R. 246.  IN
THIS CONNECTION, THE DISTRICT MANAGER ALSO ASSISTED IN THE ORGANIZATION
AND TRAINING OF THE DEALER'S SALES FORCE.  AT APPROPRIATE TIMES HE
DISTRIBUTED PROMOTIONAL MATERIAL AND ADVISED ON USED CAR INVENTORY
CONTROL. 

IT WAS ALSO THE DUTY OF THE DISTRICT MANAGER TO DISCUSS AND WORK OUT
WITH THE DEALER THE 30-, 60- AND 90-DAY PROJECTION OF ORDERS OF
ESTIMATED NEEDS WHICH THE DEALER OR THE DISTRICT MANAGER THEN FILED
WITH THE ZONE MANAGER.  THESE PROJECTIONS INDICATED THE NUMBER OF CARS
A DEALER NEEDED DURING THE INDICATED PERIOD AND ALSO INCLUDED ESTIMATES
FOR ACCESSORIES AND EQUIPMENT.  THE PROJECTED ORDERS WERE PREPARED AND
FILED EACH MONTH AND THE ESTIMATES CONTAINED IN THEM COULD, FOR ALL
PRACTICAL PURPOSES, BE "CONSTRUED AS A PURCHASE ORDER."  (FN3) 

IN ADDITION TO THE DISTRICT MANAGER, EACH OF THE CHEVROLET, PONTIAC
AND OLDSMOBILE DIVISIONS ALSO MAINTAINED SERVICE REPRESENTATIVES WHO
CALLED ON THE DEALERS WITH REGULARITY, ASSISTING THE SERVICE DEPARTMENT
IN ANY TROUBLES IT EXPERIENCED WITH GENERAL MOTORS PRODUCTS.  THESE
REPRESENTATIVES ALSO CHECKED THE ADEQUACY OF THE SERVICE DEPARTMENT
INVENTORY TO MAKE CERTAIN THAT THE DEALER'S AGREEMENT WAS BEING
COMPLIED WITH AND TO ENSURE THE BEST POSSIBLE SERVICE TO CUSTOMERS.  IT
WAS ALSO THEIR DUTY TO NOTE THE APPEARANCE OF THE DEALER'S PLACE OF
BUSINESS AND, WHERE NEEDED, TO REQUIRE REHABILITATION, IMPROVED
CLEANLINESS OR ANY OTHER REPAIRS NECESSARY TO ACHIEVE AN ATTRACTIVE
SALES AND SERVICE FACILITY.  AT THE DEALER'S REQUEST, OR ON DIRECTION
FROM HIS ZONE SUPERIOR, THE SERVICE REPRESENTATIVE ALSO CONDUCTED
SERVICE CLINICS AT THE DEALER'S PLACE OF BUSINESS, FOR THE PURPOSE OF
TEACHING THE DEALER AND HIS SERVICE PERSONNEL THE PROPER TECHNIQUES
NECESSARY TO THE OPERATION OF AN EFFICIENT SERVICE DEPARTMENT.  THE
SERVICE REPRESENTATIVE ALSO GAVE ASSISTANCE TO THE DEALER WITH THE MORE
DIFFICULT CUSTOMER COMPLAINTS, SOME OF WHICH WERE REGISTERED WITH THE
DEALER, BUT OTHERS OF WHICH WERE REGISTERED WITH THE CORPORATION. 
DURING THE TAX PERIOD INVOLVED HERE THE CHEVROLET, OLDSMOBILE AND
PONTIAC DIVISIONS HAD AN AVERAGE OF ABOUT 20 EMPLOYEES RESIDENT OR
PRINCIPALLY EMPLOYED IN WASHINGTON.  (FN4)  GENERAL MOTORS PARTS
DIVISION EMPLOYED ABOUT 20 MORE. 

THE CHEVROLET DIVISION'S BRANCH OFFICE AT SEATTLE CONSISTED OF ONE
MAN AND HIS SECRETARY.  THAT OFFICE PERFORMED THE FUNCTION OF GETTING
BETTER SERVICE FOR WASHINGTON DEALERS ON ORDERS OF CHEVROLET DIVISION
PRODUCTS.  THE BRANCH OFFICE HAD NO JURISDICTION OVER SALES OR OVER
OTHER CHEVROLET PERSONNEL IN THE STATE.  SINCE JANUARY 1, 1954,
CHEVROLET DIVISION HAS MAINTAINED A ZONE OFFICE IN SEATTLE AND HAS PAID
THE TAX WITHOUT DISPUTE.         3.  OUT-OF-STATE PERSONNEL, PERFORMING
IN-STATE

                                   ACTIVITIES. 

THE ZONE MANAGER, WHO DIRECTED ALL ZONE ACTIVITIES, VISITED WITH EACH
WASHINGTON DEALER ON THE AVERAGE OF ONCE EACH 60 DAYS, THE LARGER ONES,
EACH MONTH.  ABOUT ONE-HALF OF THESE VISITS WERE STAGED AT THE DEALER'S
PLACE OF BUSINESS AND THE OTHERS WERE AT PORTLAND.  THE ZONE BUSINESS
MANAGEMENT MANAGER WAS THE EFFICIENCY EXPERT FOR THE ZONE AND
SUPERVISED THE CAPITAL STRUCTURE AND FINANCING OF THE WASHINGTON
DEALERS.  THE ZONE PARTS AND SERVICE MANAGER HELD RESPONSIBILITY FOR
THE ADEQUACY OF THE WASHINGTON DEALER SERVICES TO CUSTOMERS.  HE WORKED
THROUGH THE LOCAL WASHINGTON SERVICE REPRESENTATIVE, BUT ALSO MADE
PERSONAL VISITS TO WASHINGTON DEALERS AND CONDUCTED SCHOOLS FOR THE
PROMOTION OF GOOD SERVICE POLICIES.  THE ZONE USED CAR MANAGER (FOR THE
CHEVROLET DIVISION ONLY) ASSISTED WASHINGTON DEALERS IN THE DISPOSITION
OF USED CARS THROUGH APPROPRIATE DISPLAY AND RECONDITIONING. 

                      4.  ACTIVITIES OF GENERAL MOTORS PARTS
DIVISION. 

DURING THE PERIOD OF THIS TAX, THE GENERAL MOTORS PARTS DIVISION
WAREHOUSED, SOLD AND SHIPPED PARTS AND ACCESSORIES TO WASHINGTON
DEALERS FOR CHEVROLET, PONTIAC AND OLDSMOBILE VEHICLES.  IT MAINTAINED
WAREHOUSES IN PORTLAND AND SEATTLE.  NO PERSONNEL OF THIS DIVISION
VISITED THE DEALERS, BUT ALL OF THE CHEVROLET, PONTIAC AND OLDSMOBILE
DEALERS IN WASHINGTON OBTAINED THEIR PARTS AND ACCESSORIES FROM THESE
WAREHOUSES.  ITEMS CARRIED BY THE SEATTLE WAREHOUSE WERE SHIPPED FROM
IT, AND THOSE WAREHOUSED AT PORTLAND WERE SHIPPED FROM THERE.  THE
SEATTLE WAREHOUSE, WHICH CARRIED THE ITEMS MOST OFTEN CALLED FOR IN
WASHINGTON, EMPLOYED FROM 20 TO 28 PEOPLE DURING THE TAXING PERIOD. 
THE PORTLAND WAREHOUSE CARRIED THE LESS FREQUENTLY NEEDED PARTS.  THE
TAX ON THE ORDERS FILLED AT THE SEATTLE WAREHOUSE WAS PAID BUT THE TAX
ON THE PORTLAND SHIPMENTS IS BEING PROTESTED. 

                                            III. 

"IT IS BEYOND DISPUTE," WE SAID IN NORTHWESTERN STATES PORTLAND
CEMENT CO. V. MINNESOTA, SUPRA, AT 458, "THAT A STATE MAY NOT LAY A TAX
ON THE 'PRIVILEGE' OF ENGAGING IN INTERSTATE COMMERCE."  BUT THAT IS
NOT THIS CASE.  TO SO CONTEND HERE IS TO OVERLOOK A LONG LINE OF CASES
OF THIS COURT HOLDING THAT AN IN-STATE ACTIVITY MAY BE A SUFFICIENT
LOCAL INCIDENT UPON WHICH A TAX MAY BE BASED.  AS WAS SAID IN SPECTOR
MOTOR SERVICE, INC., V. O'CONNOR, 340 U.S. 602, 609 (1951), "THE STATE
IS NOT PRECLUDED FROM IMPOSING TAXES UPON OTHER ACTIVITIES OR ASPECTS
OF THIS INTERSTATE BUSINESS WHICH, UNLIKE THE PRIVILEGE OF DOING
INTERSTATE BUSINESS, ARE SUBJECT TO THE SOVEREIGN POWER OF THE STATE." 
THIS IS EXACTLY WHAT WASHINGTON SEEKS TO DO HERE AND WE CANNOT SAY
THAT APPELLANT HAS SHOWN THAT ITS ACTIVITIES WITHIN THE STATE ARE NOT
SUCH INCIDENTS AS THE STATE CAN REACH.  NORTON CO. V. DEPARTMENT OF
REVENUE, SUPRA, AT 537.  UNLIKE FIELD ENTERPRISES, INC., V. WASHINGTON,
47 WASH. 2D 852, 289 P.2D 1010, AFF'D, 352 U.S. 806 (1956), CITING
NORTON, SUPRA, THE PONTIAC AND OLDSMOBILE DIVISIONS OF GENERAL MOTORS
HAD NO BRANCH OFFICES IN WASHINGTON.  BUT THESE DIVISIONS HAD DISTRICT
MANAGERS, SERVICE REPRESENTATIVES AND OTHER EMPLOYEES WHO WERE
RESIDENTS OF THE STATE AND WHO PERFORMED SUBSTANTIAL SERVICES IN
RELATION TO GENERAL MOTORS' FUNCTIONS THEREIN, PARTICULARLY WITH
RELATION TO THE ESTABLISHMENT AND MAINTENANCE OF SALES, UPON WHICH THE
TAX WAS MEASURED.  WE PLACE LITTLE WEIGHT ON THE FACT THAT THESE
DIVISIONS HAD NO FORMAL OFFICES IN THE STATE, SINCE IN ACTUALITY THE
HOMES OF THESE OFFICIALS WERE USED AS CORPORATE OFFICES.  DESPITE THEIR
LABEL AS "HOMES" THEY SERVED THE CORPORATION JUST AS EFFECTIVELY AS
"OFFICES."  IN ADDITION, THE CORPORATION HAD A CHEVROLET BRANCH OFFICE
AND A GENERAL MOTORS PARTS DIVISION WAREHOUSE IN SEATTLE. 

THUS, IN THE BUNDLE OF CORPORATE ACTIVITY, WHICH IS THE TEST HERE, WE
SEE GENERAL MOTORS' ACTIVITY SO ENMESHED IN LOCAL CONNECTIONS THAT IT
VOLUNTARILY PAID TAXES ON VARIOUS OF ITS OPERATIONS BUT INSISTS THAT IT
WAS NOT LIABLE ON OTHERS.  SINCE GENERAL MOTORS ELECTED TO ENTER THE
STATE IN THIS FASHION, WE CANNOT SAY THAT THE SUPREME COURT OF
WASHINGTON ERRED IN HOLDING THAT THESE LOCAL INCIDENTS WERE SUFFICIENT
TO FORM THE BASIS FOR THE LEVY OF A TAX THAT WOULD NOT RUN CONTRARY TO
THE CONSTITUTION.  NORTON CO. V. DEPARTMENT OF REVENUE, SUPRA.

                                             IV. 

THE TAX THAT WASHINGTON LEVIED IS MEASURED BY THE WHOLESALE SALES OF
THE RESPECTIVE GENERAL MOTORS DIVISIONS IN THE STATE.  IT IS
UNAPPORTIONED AND, AS WE HAVE POINTED OUT, IS, THEREFORE, SUSPECT.  WE
MUST DETERMINE WHETHER IT IS SO CLOSELY RELATED TO THE LOCAL ACTIVITIES
OF THE CORPORATION AS TO FORM "SOME DEFINITE LINK, SOME MINIMUM
CONNECTION, BETWEEN A STATE AND THE PERSON, PROPERTY OR TRANSACTION IT
SEEKS TO TAX."  MILLER BROS. CO. V. MARYLAND, 347 U.S. 340, 344-345
(1954).  ON THE BASIS OF THE FACTS FOUND BY THE STATE COURT WE ARE NOT
PREPARED TO SAY THAT ITS CONCLUSION WAS CONSTITUTIONALLY
IMPERMISSIBLE.  NORTON CO. V. DEPARTMENT OF REVENUE, SUPRA, AT 538. 
HERE, JUST AS IN NORTON, THE CORPORATION SO MINGLED ITS TAXABLE
BUSINESS WITH THAT WHICH IT CLAIMS NONTAXABLE THAT WE CAN ONLY
"CONCLUDE THAT, IN THE LIGHT OF ALL THE EVIDENCE, THE JUDGMENT
ATTRIBUTING  ... THE CORPORATION'S WASHINGTON SALES TO ITS LOCAL
ACTIVITIES WAS WITHIN THE REALM OF PERMISSIBLE JUDGMENT.   PETITIONER
HAS NOT ESTABLISHED THAT SUCH SERVICES AS WERE RENDERED  ...  THROUGH
IN-STATE ACTIVITY WERE NOT DECISIVE FACTORS IN ESTABLISHING AND HOLDING
THIS MARKET."  IBID.  ALTHOUGH MERE ENTRY INTO A STATE DOES NOT TAKE
FROM A CORPORATION THE RIGHT TO CONTINUE TO DO AN INTERSTATE BUSINESS
WITH TAX IMMUNITY, IT DOES NOT FOLLOW THAT THE CORPORATION CAN CHANNEL
ITS OPERATIONS THROUGH SUCH A MAZE OF LOCAL CONNECTIONS AS DOES GENERAL
MOTORS, AND TAKE ADVANTAGE OF ITS GAIN ON DOMESTICITY, AND STILL
MAINTAIN THAT SAME DEGREE OF IMMUNITY. 

  V. 

A MORE DIFFICULT QUESTION MIGHT ARISE FROM APPELLANT'S CLAIM OF
MULTIPLE TAXATION.  GWIN, WHITE & PRINCE, INC., V. HENNEFORD, 305 U.S.
434, 440 (1939).  GENERAL MOTORS CLAIMS THAT SOME OF ITS PRODUCTS TAXED
BY WASHINGTON ARE MANUFACTURED IN ST. LOUIS WHERE A LICENSE TAX,
MEASURED BY SALES BEFORE SHIPMENT IS LEVIED.  SEE AMERICAN MFG. CO. V.
ST. LOUIS, 250 U.S. 459 (1919).  IT IS ALSO URGED THAT GENERAL MOTORS'
OREGON-BASED ACTIVITY WHICH CONCERNS WASHINGTON SALES MIGHT AFFORD
SUFFICIENT INCIDENTS FOR A SIMILAR TAX BY OREGON.  THE COURT TOUCHED
UPON THE PROBLEM OF MULTIPLE TAXATION IN NORTHWEST AIRLINES V.
MINNESOTA, SUPRA, AT 295, BUT LAID IT TO ONE SIDE AS "NOT NOW BEFORE
US."  THEREAFTER, IN NORTHWESTERN STATES PORTLAND CEMENT CO. V.
MINNESOTA, SUPRA, AT 463, WE HELD THAT "IN THIS TYPE OF CASE THE
TAXPAYERS MUST SHOW THAT THE FORMULA PLACES A BURDEN UPON INTERSTATE
COMMERCE IN A CONSTITUTIONAL SENSE."  APPELLANT HAS NOT DONE THIS.  IT
HAS NOT DEMONSTRATED WHAT DEFINITE BURDEN, IN A CONSTITUTIONAL SENSE,
THE ST. LOUIS TAX PLACES ON THE IDENTICAL INTERSTATE SHIPMENTS BY WHICH
WASHINGTON MEASURES ITS TAX.  CF. INTERNATIONAL HARVESTER CO. V. EVATT,
329 U.S. 416, 421-423 (1947).  AND FURTHER, IT HAS NOT BEEN SHOWN THAT
OREGON LEVIES ANY TAX ON APPELLANT'S ACTIVITY BEARING ON WASHINGTON
SALES.  IN SUCH CASES WE HAVE REFRAINED FROM PASSING ON THE QUESTION OF
"MULTIPLE TAXATION," E.G., NORTHWESTERN STATES PORTLAND CEMENT CO. V.
MINNESOTA, SUPRA, AND WE ADHERE TO THAT POSITION.  AFFIRMED. 

FN1  RELEVANT SECTIONS OF THE WASHINGTON STATUTE AS THEY WERE IN
FORCE DURING THE TAXABLE PERIOD IN THIS CASE, JANUARY 1, 1949, THROUGH
JUNE 30, 1953, ARE: 

"SECTION 4.  FROM AND AFTER THE FIRST DAY OF MAY, 1935, THERE IS
HEREBY LEVIED AND THERE SHALL BE COLLECTED FROM EVERY PERSON A TAX FOR
THE ACT OR PRIVILEGE OF ENGAGING IN BUSINESS ACTIVITIES.  SUCH TAX
SHALL BE MEASURED BY THE APPLICATION OF RATES AGAINST VALUE OF
PRODUCTS, GROSS PROCEEDS OF SALES, OR GROSS INCOME OF THE BUSINESS, AS
THE CASE MAY BE, AS FOLLOWS: 

     *         *  *         *         * 

"(E)  UPON EVERY PERSON  ...  ENGAGING WITHIN THIS STATE IN THE
BUSINESS OF MAKING SALES AT WHOLESALE; AS TO SUCH PERSONS THE AMOUNT OF
TAX WITH RESPECT TO SUCH BUSINESS SHALL BE EQUAL TO THE GROSS PROCEEDS
OF SALES OF SUCH BUSINESS MULTIPLIED BY THE RATE OF ONE-QUARTER OF ONE
PER CENT. 

     *         *         *         *         * 

"SECTION 5.  FOR THE PURPOSES OF THIS TITLE  ...  . 

     *     *         *         *         * 

"(E)  THE TERM 'SALE AT WHOLESALE' OR 'WHOLESALE SALE' MEANS ANY SALE
OF TANGIBLE PERSONAL PROPERTY AND ANY SALE OF OR CHARGE MADE FOR LABOR
AND SERVICES RENDERED IN RESPECT TO REAL OR PERSONAL PROPERTY, WHICH IS
NOT A SALE AT RETAIL. 

"(F)  THE TERM 'GROSS PROCEEDS OF SALES' MEANS THE VALUE PROCEEDING
OR ACCRUING FROM THE SALE OF TANGIBLE PERSONAL PROPERTY AND/OR FOR
SERVICES RENDERED WITHOUT ANY DEDUCTION ON ACCOUNT OF THE COST OF
PROPERTY SOLD, THE COST OF MATERIALS USED, LABOR COSTS, INTEREST,
DISCOUNT PAID, DELIVERY COSTS, TAXES, OR ANY OTHER EXPENSE WHATSOEVER
PAID OR ACCRUED AND WITHOUT ANY DEDUCTION ON ACCOUNT OF LOSSES."  LAWS
OF WASH., 1949, C. 228, AT 814-819. 

FN2  THE DEALERS ARE INDEPENDENT MERCHANTS, OFTEN FINANCING
THEMSELVES, OWNING THEIR OWN FACILITIES AND PAYING FOR ALL PRODUCTS
UPON DELIVERY. 

FN3  R. 341.  A CHEVROLET ZONE MANAGER SAID THAT:  "ONCE THAT
PROJECTION AND ESTIMATE HAS BEEN MADE, AND A MEETING OF MINDS BETWEEN
THE DISTRICT MANAGER AND THE DEALER, OR HIS REPRESENTATIVE, ARRIVED AT,
THE DEALER THEN PLACES INDIVIDUAL ORDERS WITH US ON A SEPARATE FORM FOR
THE MERCHANDISE.   THOSE SEPARATE FORMS, OF COURSE, ARE TO ALLOW HIM TO
SPECIFICALLY SPECIFY COLOR OPTION, AND THINGS OF THAT CHARACTER."  R.
124. 

FN4  AT TIMES, PONTIAC HAD THREE, OLDSMOBILE SIX AND CHEVROLET 17
ASSIGNED PERSONNEL IN THE STATE. 

MR. JUSTICE BRENNAN, DISSENTING. 

THIS CASE PRESENTS ONCE AGAIN THE THORNY PROBLEM OF THE POWER OF A
STATE TO TAX THE GROSS RECEIPTS FROM INTERSTATE SALES ARISING FROM
ACTIVITIES OCCURRING ONLY PARTLY WITHIN ITS BORDERS.  IN UPHOLDING THE
WASHINGTON GROSS RECEIPTS TAX THE COURT HAS, IN MY JUDGMENT, CONFUSED
TWO QUITE DIFFERENT ISSUES RAISED BY THE CASE, AND IN DOING SO HAS
IGNORED A FATAL DEFECT IN THE WASHINGTON STATUTE. 

IN ORDER TO TAX ANY TRANSACTION, THE DUE PROCESS CLAUSE REQUIRES THAT
A STATE SHOW A SUFFICIENT "NEXUS BETWEEN SUCH A TAX AND TRANSACTIONS
WITHIN A STATE FOR WHICH THE TAX IS AN EXACTION."  NORTHWESTERN STATES
PORTLAND CEMENT CO. V. MINNESOTA, 358 U.S. 450, 464.  THIS QUESTION,
WHICH WE CONSIDERED IN MCLEOD V. J.E. DILWORTH CO., 322 U.S. 327, AND
NORTON CO. V. DEPARTMENT OF REVENUE, 340 U.S. 534, IS THE MOST
FUNDAMENTAL PRECONDITION ON STATE POWER TO TAX.  BUT THE STRICTURES OF
THE CONSTITUTION ON THIS POWER DO NOT STOP THERE.  FOR IN THE CASE OF A
GROSS RECEIPTS TAX IMPOSED UPON AN INTERSTATE TRANSACTION, EVEN THOUGH
THE TAXING STATE CAN SHOW "SOME MINIMUM CONNECTION," NORTHWESTERN
STATES PORTLAND CEMENT CO., SUPRA, AT 465, THE COMMERCE CLAUSE REQUIRES
THAT "TAXATION MEASURED BY GROSS RECEIPTS FROM INTERSTATE COMMERCE  ...
BE FAIRLY APPORTIONED TO THE COMMERCE CARRIED ON WITHIN THE TAXING
STATE."  WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 256. 
SEE J.D. ADAMS MFG. CO. V. STOREN, 304 U.S. 307. 

THE COURT RECOGNIZES THAT "TAXATION MEASURED BY GROSS RECEIPTS IS
CONSTITUTIONALLY PROPER IF IT IS FAIRLY APPORTIONED," ANTE, P. 440.  IN
CONCLUDING THAT THE TAX IN THIS CASE INCLUDES A FAIR APPORTIONMENT,
HOWEVER, THE COURT RELIES UPON THE FACT THAT WASHINGTON HAS SUFFICIENT
CONTACTS WITH THE SALE TO SATISFY THE NORTON STANDARD, WHICH WAS
FORMULATED TO MEET THE QUITE DIFFERENT PROBLEM OF DEFINING THE
REQUIREMENTS OF THE DUE PROCESS CLAUSE.  SEE PART IV, ANTE.  OUR PRIOR
DECISIONS CLEARLY INDICATE THAT A QUITE DIFFERENT SCHEME OF
APPORTIONMENT IS REQUIRED.  OF COURSE, WHEN A SALE MAY BE LOCALIZED
COMPLETELY IN ONE STATE, THERE IS NO DANGER OF MULTIPLE TAXATION, AND,
AS IN THE CASE OF A RETAIL SALES TAX, THE STATE MAY USE AS ITS TAX BASE
THE TOTAL GROSS RECEIPTS ARISING WITHIN ITS BORDERS.  SEE MCGOLDRICK V.
BERWIND-WHITE COAL MINING CO., 309 U.S. 33.  BUT FAR MORE COMMON IN OUR
COMPLEX ECONOMY IS THE KIND OF SALE PRESENTED IN THIS CASE, WHICH
EXHIBITS SIGNIFICANT CONTACTS WITH MORE THAN ONE STATE.  IN SUCH A
SITUATION, IT IS THE COMMERCIAL ACTIVITY WITHIN THE STATE, AND NOT THE
SALES VOLUME, WHICH DETERMINES THE STATE'S POWER TO TAX, AND BY WHICH
THE TAX MUST BE APPORTIONED.  WHILE THE RATIO OF IN-STATE TO OUT-OF
STATE SALES IS OFTEN TAKEN INTO ACCOUNT AS ONE FACTOR AMONG OTHERS IN
APPORTIONING A FIRM'S TOTAL NET INCOME, SEE, E.G., THE DESCRIPTION OF
THE "MASSACHUSETTS FORMULA" IN NOTE, 75 HARV. L. REV. 953, 1011 (1962),
IT NEVERTHELESS REMAINS TRUE THAT IF COMMERCIAL ACTIVITY IN MORE THAN
ONE STATE RESULTS IN A SALE IN ONE OF THEM, THAT STATE MAY NOT CLAIM AS
ALL ITS OWN THE GROSS RECEIPTS TO WHICH THE ACTIVITY WITHIN ITS BORDERS
HAS CONTRIBUTED ONLY A PART.  SUCH A TAX MUST BE APPORTIONED TO REFLECT
THE BUSINESS ACTIVITY WITHIN THE TAXING STATE.  CF. MY CONCURRING
OPINION IN RAILWAY EXPRESS AGENCY V. VIRGINIA, 358 U.S. 434, 446. 
SINCE THE WASHINGTON TAX ON WHOLESALES IS, BY ITS VERY TERMS, APPLIED
TO THE "GROSS PROCEEDS OF SALES" OF THOSE "ENGAGING WITHIN THIS STATE
IN THE BUSINESS OF MAKING SALES AT WHOLESALE," REV. CODE WASH.
82.04.270, IT CANNOT BE SUSTAINED UNDER THE STANDARDS REQUIRED BY THE
COMMERCE CLAUSE.    MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE STEWART
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THE ISSUE PRESENTED IS WHETHER THE COMMERCE CLAUSE PERMITS A STATE TO
ASSESS AN UNAPPORTIONED GROSS RECEIPTS TAX ON THE INTERSTATE WHOLESALE
SALES OF AUTOMOBILES DELIVERED TO DEALERS FOR RESALE IN THAT STATE.  IN
UPHOLDING THE TAX INVOLVED IN THIS CASE, THE COURT STATES AS A GENERAL
PROPOSITION THAT "TAXATION MEASURED BY GROSS RECEIPTS FROM INTERSTATE
SALES IS CONSTITUTIONALLY PROPER IF IT IS FAIRLY APPORTIONED."  ANTE,
AT 440.  THE COURT CONCLUDES FROM THIS THAT THE VALIDITY OF
WASHINGTON'S WHOLESALE SALES TAX MAY BE DETERMINED BY ASKING "'THE
SIMPLE BUT CONTROLLING QUESTION OF WHETHER THE STATE HAS GIVEN ANYTHING
FOR WHICH IT CAN ASK RETURN.'"  ANTE, AT 441.  THIS ELUSIVELY SIMPLE
TEST AND ITS APPLICATION TO THIS CASE REPRESENT AN IMPORTANT DEPARTURE
FROM A FUNDAMENTAL PURPOSE OF THE COMMERCE CLAUSE AND FROM AN
ESTABLISHED PRINCIPLE WHICH HAD HERETOFORE PROVIDED GUIDANCE IN AN AREA
OTHERWISE FRAUGHT WITH COMPLEXITIES AND INCONSISTENCIES. 

THE RELEVANT FACTS, WHICH ARE UNDISPUTED, MERIT BRIEF RESTATEMENT. 
GENERAL MOTORS MANUFACTURES IN CALIFORNIA, MISSOURI AND MICHIGAN MOTOR
VEHICLES, PARTS AND ACCESSORIES WHICH ARE SOLD AT WHOLESALE TO
INDEPENDENT DEALERS.  THE CORPORATION MANUFACTURES NONE OF THESE
PRODUCTS WITHIN THE STATE OF WASHINGTON BUT DOES SELL THEM TO LOCAL
WASHINGTON RETAIL DEALERS.  GENERAL MOTORS CONDUCTS BUSINESS THROUGH
"DIVISIONS" WHICH ALTHOUGH NOT SEPARATELY INCORPORATED ARE OPERATED AS
SUBSTANTIALLY INDEPENDENT ENTITIES.  THIS CASE INVOLVES WHOLESALE SALES
BY THE CHEVROLET PONTIAC, OLDSMOBILE AND GENERAL MOTORS PARTS DIVISIONS
TO INDEPENDENT DEALERS IN WASHINGTON.  AS A GENERAL MATTER THE SALES
AND ORDERS INVOLVED IN THIS CASE WERE HANDLED AND APPROVED BY ZONE
OFFICES IN PORTLAND, OREGON.  GENERAL MOTORS HAS A LIMITED NUMBER OF
SALES REPRESENTATIVES ("DISTRICT MANAGERS") WHO RESIDE IN WASHINGTON
AND WHO MAINTAIN CONTACTS WITH THE LOCAL DEALERS IN ORDER TO FACILITATE
THE SALES OF GENERAL MOTORS PRODUCTS, BUT THESE SALES REPRESENTATIVES
CONDUCTED NO BUSINESS IN WASHINGTON OTHER THAN THE PROMOTION OF THEIR
WHOLESALE INTERSTATE SALES.  THE ORDERS FOR AUTOMOBILES WERE SENT
DIRECTLY TO THE PORTLAND ZONE OFFICES WHERE THEY WERE ACCEPTED FOR
SHIPMENT, F.O.B., FROM POINTS OUTSIDE OF WASHINGTON.  FOR THE PURPOSES
OF THIS CASE, HOWEVER, IT IS USEFUL TO DIVIDE THE TRANSACTIONS - THE
TAXABILITY OF WHICH IS IN DISPUTE - INTO THREE CATEGORIES: 

(1)  PONTIAC AND OLDSMOBILE DIVISIONS SALES:  THESE DIVISIONS HAD NO
OFFICE, ESTABLISHMENT OR INTRASTATE BUSINESS IN WASHINGTON; THEY
OPERATED ENTIRELY THROUGH PORTLAND ZONE OFFICES AND THE WASHINGTON
SALES REPRESENTATIVES. 

(2)  GENERAL MOTORS PARTS DIVISION SALES:  THIS DIVISION MAINTAINED
WAREHOUSES IN BOTH SEATTLE, WASHINGTON, AND PORTLAND, OREGON.  THE
SEATTLE WAREHOUSE SOLD DIRECTLY TO LOCAL WASHINGTON DEALERS AND THE TAX
IMPOSED ON SUCH SALES HAS BEEN PAID AND IS NOT DISPUTED HERE.  THE
SALES TO WASHINGTON DEALERS OF PARTS AND ACCESSORIES ORDERED FROM AND
DELIVERED BY THE PORTLAND WAREHOUSE WERE, HOWEVER, ALSO TAXED AND THOSE
TAXES ARE DISPUTED HERE. 

(3)  CHEVROLET DIVISION SALES - "CLASS A AND B" SALES:  THE CHEVROLET
DIVISION MAINTAINED A ONE-MAN BRANCH OFFICE IN SEATTLE, WASHINGTON; AND
ALL SALES WITHIN THE TERRITORIAL JURISDICTION OF THAT OFFICE HAVE BEEN
REFERRED TO IN THIS LITIGATION AS "CLASS A" TRANSACTIONS.  THIS ONE-MAN
OFFICE OPERATED UNDER THE DIRECTION OF THE PORTLAND ZONE OFFICE AND
CONDUCTED NO BUSINESS IN THE STATE OF WASHINGTON OTHER THAN TO
FACILITATE THE MANAGEMENT AND HANDLING OF SALES AND ORDERS THROUGH THE
PORTLAND ZONE OFFICE.  THE SEATTLE OFFICE, HOWEVER, DEALT ONLY WITH
WASHINGTON'S NORTHERN COUNTIES AND DID NOT DEAL WITH NINE OF
WASHINGTON'S SOUTHERN COUNTIES; THE SALES TO DEALERS IN THOSE SOUTHERN
COUNTIES HAVE BEEN LABELED "CLASS B" SALES AND HAD NO CONNECTION WITH
CHEVROLET'S SEATTLE OFFICE.  THE "CLASS B" SALES WERE THEREFORE SIMILAR
TO THOSE IN CATEGORY (1) ABOVE. 

ALL OF THE ABOVE TRANSACTIONS HAVE BEEN SUBJECTED TO AN UNAPPORTIONED
GROSS RECEIPTS TAX WHICH THE STATE OF WASHINGTON ASSESSES FOR THE
PRIVILEGE OF "ENGAGING WITHIN THIS STATE IN THE BUSINESS OF MAKING
SALES AT WHOLESALE."  REV. CODE WASH. 82.04.270; WASH. LAWS 1949, C.
228, SEC. 1(E).  (FN1) 

ON THESE FACTS THE COURT HOLDS THAT THE ACTIVITIES OF THE SALES
REPRESENTATIVES CONSTITUTE "AN IN-STATE ACTIVITY" FORMING "A SUFFICIENT
LOCAL INCIDENT UPON WHICH A TAX MAY BE BASED."  ANTE, AT 447.  THIS
DECISION DEPARTS FROM NORTON CO. V. DEPARTMENT OF REVENUE, 340 U.S.
534, AND ADOPTS A TEST THERE REJECTED.  NORTON INVOLVED A MASSACHUSETTS
CORPORATION WHICH OPERATED "A BRANCH OFFICE AND WAREHOUSE" IN CHICAGO,
ILLINOIS, FROM WHICH IT MADE "LOCAL SALES AT RETAIL."  ID., AT 535. 
THE MASSACHUSETTS CORPORATION WAS ADMITTEDLY ENGAGING IN INTRASTATE
BUSINESS WITHIN ILLINOIS AND WAS MAKING LOCAL SALES CONCEDEDLY SUBJECT
TO TAXATION BY THE STATE.  IN ADDITION TO "OVER-THE-COUNTER" CHICAGO
SALES, THE MASSACHUSETTS FIRM MADE TWO OTHER TYPES OF SALES TO ILLINOIS
INHABITANTS:  (1) SALES BASED ON ORDERS OR SHIPMENTS WHICH AT SOME
POINT WERE ROUTED THROUGH OR UTILIZED THE CHICAGO OUTLET AND (2) SALES
BASED ON ORDERS FROM ILLINOIS INHABITANTS SENT DIRECTLY TO
MASSACHUSETTS AND FILLED BY DIRECT SHIPMENT TO THE PURCHASERS.  THE
ILLINOIS TAX WAS IMPOSED UPON ALL RECEIPTS OBTAINED BY NORTON FROM
SALES TO ILLINOIS RESIDENTS REGARDLESS OF WHETHER THOSE SALES WERE
ASSOCIATED OR CONNECTED WITH THE LOCAL OFFICE AND WAREHOUSE WHICH WAS
CONDUCTING INTRASTATE BUSINESS.  THE COURT STATED THAT WHEN, "AS HERE,
THE CORPORATION HAS GONE INTO THE STATE TO DO LOCAL BUSINESS," THE FIRM
COULD BE EXEMPTED FROM TAXATION ON SALES "ONLY BY" SUSTAINING THE
BURDEN OF "SHOWING THAT THE PARTICULAR TRANSACTIONS ARE DISSOCIATED
FROM THE LOCAL BUSINESS AND INTERSTATE IN NATURE."  ID., AT 537.  THE
COURT HELD IN PART THAT "THE JUDGMENT ATTRIBUTING TO THE CHICAGO BRANCH
INCOME FROM ALL SALES THAT UTILIZED IT EITHER IN RECEIVING THE ORDERS
OR DISTRIBUTING THE GOODS WAS WITHIN THE REALM OF PERMISSIBLE
JUDGMENT."  ID., AT 538.  BUT IN SPITE OF THE BURDEN OF PERSUASION
RESTING ON A FIRM HAVING AN OFFICE DOING INTRASTATE BUSINESS, THE COURT
CONCLUDED THAT THE TAX ON ALL SALES BY NORTON TO ILLINOIS CUSTOMERS WAS
NOT WHOLLY WITHIN "THE REALM OF PERMISSIBLE JUDGMENT."   THE COURT HELD
THAT THOSE SALES INVOLVING GOODS AND ORDERS WHICH PROCEEDED DIRECTLY
FROM MASSACHUSETTS TO THE ILLINOIS CUSTOMERS WITHOUT BECOMING
ASSOCIATED WITH THE CHICAGO OUTLET WERE SO CLEARLY "INTERSTATE IN
CHARACTER" THAT THEY COULD NOT BE SUBJECTED TO THE ILLINOIS TAX.  ID.,
AT 539.  IN SO HOLDING THE COURT STATED THAT THE OUT-OF-STATE
CORPORATION "COULD HAVE APPROACHED THE ILLINOIS MARKET THROUGH
SOLICITORS ONLY AND IT WOULD HAVE BEEN ENTITLED TO THE IMMUNITY OF
INTERSTATE COMMERCE  ...  ."  ID., AT 538. 

THE FACTS AND HOLDINGS OF NORTON SHOULD BE COMPARED WITH THE FACTS
AND DECISION OF THE COURT IN THE PRESENT CASE.  THE NORTON DECISION
SURELY REQUIRES IMMUNITY FOR THE SALES IN CATEGORY (1) (PONTIAC AND
OLDSMOBILE DIVISIONS SALES) FOR THOSE SALES WERE NOT ONLY INTERSTATE IN
CHARACTER BUT WERE WHOLLY FREE FROM ASSOCIATION WITH ANY LOCAL OFFICE
OR WAREHOUSE CONDUCTING INTRASTATE BUSINESS. 

WITH RESPECT TO THE TRANSACTIONS IN CATEGORY (2) (GENERAL MOTORS
PARTS DIVISION SALES), IT APPEARS THAT THE OFFICES AND WAREHOUSES
OPERATED BY THE PARTS DIVISION IN SEATTLE, WASHINGTON, AND IN PORTLAND,
OREGON, CREATE A SITUATION STRIKINGLY SIMILAR TO THAT IN NORTON WHERE
THE MASSACHUSETTS FIRM MAINTAINED AN OUTLET IN CHICAGO, ILLINOIS.  HERE
AS IN NORTON THE COURT IS PRESENTED WITH AN IDENTIFIABLE GROUP OF SALES
TRANSACTIONS (THOSE INVOLVING SALES AT THE LOCAL SEATTLE WAREHOUSE)
WHICH APPEAR TO HAVE BEEN OVER-THE-COUNTER AND INTRASTATE IN CHARACTER
AND WITH A READILY DISTINGUISHABLE GROUP OF SALES TRANSACTIONS (THOSE
INVOLVING ONLY THE PORTLAND WAREHOUSE) WHICH WERE NOT CONNECTED WITH AN
INTRASTATE BUSINESS AND WHICH WERE INTERSTATE IN CHARACTER.  IN NORTON
THE LATTER TYPE OF PURELY INTERSTATE SALES, THOSE UNCONNECTED WITH ANY
INTRASTATE BUSINESS, WERE SQUARELY HELD NONTAXABLE. 

FINALLY, WITH RESPECT TO TRANSACTIONS IN CATEGORY (3) (CHEVROLET
DIVISION SALES - "CLASS A AND B" SALES), THOSE IN "CLASS B," WHICH BY
DEFINITION LACKED ANY CONNECTION WITH AN IN-STATE OFFICE, WOULD SEEM TO
BE PRECISELY LIKE THOSE IN NORTON WHICH HAD NO CONNECTION WITH AN IN
STATE ESTABLISHMENT AND WHICH ACCORDINGLY WERE EXEMPTED.  AND, AS TO
THE "CLASS A" SALES WHICH WERE CONNECTED WITH THE ONE-MAN SEATTLE
OFFICE, IT IS IMPORTANT TO NOTE THAT THIS IN-STATE "OFFICE," UNLIKE THE
"OFFICE AND WAREHOUSE" INVOLVED IN NORTON, MADE NO INTRASTATE OR RETAIL
SALES, STOCKED NO PRODUCTS AND HAD NO AUTHORITY TO ACCEPT SALES
ORDERS.  IN FACT THE SEATTLE "OFFICE" SIMPLY OPERATED TO FACILITATE THE
INTERSTATE SALES DIRECTED BY THE ZONE OFFICE IN PORTLAND, OREGON. 

ALTHOUGH THE OPINION OF THE COURT SEEMS TO IMPLY THAT THERE STILL IS
SOME THRESHOLD REQUIREMENT OF IN-STATE ACTIVITY WHICH MUST BE FOUND TO
EXIST BEFORE A "FAIRLY APPORTIONED" TAX MAY BE IMPOSED ON INTERSTATE
SALES, IT IS DIFFICULT TO CONCEIVE OF A STATE GROSS RECEIPTS TAX ON
INTERSTATE COMMERCE WHICH COULD NOT BE SUSTAINED UNDER THE RATIONALE
ADOPTED TODAY.  EVERY INTERSTATE SALE INVARIABLY INVOLVES SOME LOCAL
INCIDENTS - SOME "IN-STATE" ACTIVITY.  IT IS DIFFICULT, FOR EXAMPLE, TO
DISTINGUISH BETWEEN THE IN-STATE ACTIVITIES OF THE REPRESENTATIVES HERE
INVOLVED AND THE IN-STATE ACTIVITIES OF SOLICITORS OR TRAVELING
SALESMEN - ACTIVITIES WHICH THIS COURT HAS HELD ARE INSUFFICIENT TO
CONSTITUTE A BASIS FOR IMPOSING A TAX ON INTERSTATE SALES.  MCLEOD V.
J.E. DILWORTH CO., 322 U.S. 327; CF. REAL SILK HOSIERY MILLS V. CITY OF
PORTLAND, 268 U.S. 325; ROBBINS V. SHELBY COUNTY TAXING DISTRICT, 120
U.S. 489.  SURELY THE DISTINCTION CANNOT REST ON THE FACT THAT THE
SOLICITORS OR SALESMEN MAKE HOTELS OR MOTELS THEIR "OFFICES" WHEREAS IN
THE PRESENT CASE THE SALES REPRESENTATIVES MADE THEIR HOMES THEIR
"OFFICES."  IN THIS REGARD, THE NORTON DECISION RESTED SOLIDLY ON THE
FACT THAT THE TAXPAYER HAD A BRANCH OFFICE AND WAREHOUSE MAKING
INTRASTATE RETAIL SALES. 

THE OPINION OF THE COURT GOES BEYOND A CONSIDERATION OF WHETHER THERE
HAS BEEN IN-STATE ACTIVITY OF APPROPRIATE CHARACTER TO SATISFY A
THRESHOLD REQUIREMENT FOR IMPOSING A TAX ON INTERSTATE SALES.  THE
COURT ASSERTS AS A GENERAL PRINCIPLE THAT THE VALIDITY OF A TAX ON
INTERSTATE COMMERCE "RESTS UPON WHETHER THE STATE IS EXACTING A
CONSTITUTIONALLY FAIR DEMAND FOR THAT ASPECT OF INTERSTATE COMMERCE TO
WHICH IT BEARS A SPECIAL RELATION."  ANTE, AT 440.  WHAT IS "FAIR"? 
HOW ARE WE TO DETERMINE WHETHER A STATE HAS EXERTED ITS POWER IN
"PROPER PROPORTION TO APPELLANT'S ACTIVITIES WITHIN THE STATE"?  ANTE,
AT 441.  SEE NOTE, DEVELOPMENTS - FEDERAL LIMITATIONS ON STATE TAXATION
OF INTERSTATE BUSINESS, 75 HARV. L. REV. 953, 957 (1962).  I SUBMIT,
WITH DUE RESPECT FOR THE COMPLEXITY OF THE PROBLEM, THAT THE
FORMULATION SUGGESTED BY THE COURT IS UNWORKABLE.  CONSTITUTIONAL
ADJUDICATION UNDER THE COMMERCE CLAUSE WOULD FIND LITTLE GUIDANCE IN A
CONCEPT OF STATE INTERSTATE SALES TAXATION TESTED AND LIMITED BY THE
TAX'S "FAIR" PROPORTION OR DEGREE.  THE ATTEMPT TO DETERMINE THE
"FAIRNESS" OF AN INTERSTATE SALES TAX OF A GIVEN PERCENTAGE IMPOSED ON
GIVEN ACTIVITIES IN ONE STATE WOULD BE ALMOST AS UNSEEMLY AS AN ATTEMPT
TO DETERMINE WHETHER THAT SAME TAX WAS "FAIRLY" APPORTIONED IN LIGHT OF
TAXES LEVIED ON THE SAME TRANSACTION BY OTHER STATES.  THE INFINITE
VARIETY OF FACTUAL CONFIGURATIONS WOULD READILY FRUSTRATE THE USUAL
PROCESS OF CLARIFICATION THROUGH JUDICIAL INCLUSION AND EXCLUSION.  THE
ONLY COHERENT PATTERN THAT COULD DEVELOP WOULD, IN REALITY, ULTIMATELY
BE BASED ON A WHOLLY PERMISSIVE ATTITUDE TOWARD STATE TAXATION OF
INTERSTATE COMMERCE. 

THE DILEMMA INHERING IN THE COURT'S FORMULATION IS REVEALED BY ITS
TREATMENT OF THE "MORE DIFFICULT," BUT INEXTRICABLY RELATED, QUESTION
ARISING FROM THE ALLEGED MULTIPLE TAXATION.  THE COURT WOULD AVOID THE
BASIC QUESTION BY SAYING THAT APPELLANT "HAS NOT DEMONSTRATED WHAT
DEFINITE BURDEN, IN A CONSTITUTIONAL SENSE, THE ST. LOUIS TAX PLACES ON
THE IDENTICAL INTERSTATE SHIPMENTS ...  .  AND FURTHER, IT HAS NOT BEEN
SHOWN THAT OREGON LEVIES ANY TAX ON APPELLANT'S ACTIVITY BEARING ON
WASHINGTON SALES."  (FN2) ANTE, AT 449.  THESE PROBLEMS ARE ENGENDERED
BY THE RULE APPLIED HERE AND CANNOT BE EVADED.  FOR IF IT IS "FAIR" TO
SUBJECT THE INTERSTATE SALES TO THE WASHINGTON WHOLESALE SALES TAX
BECAUSE OF THE ACTIVITIES OF THE SALES REPRESENTATIVES IN WASHINGTON,
THEN IT WOULD SEEM EQUALLY "FAIR" FOR OREGON, WHICH IS THE SITE OF THE
OFFICE DIRECTING AND CONSUMMATING THESE SALES, TO TAX THE SAME GROSS
SALES RECEIPTS.  MOREOVER, IT WOULD SEEM "FAIRER" FOR CALIFORNIA,
MICHIGAN OR MISSOURI - STATES IN WHICH AUTOMOBILES ARE MANUFACTURED,
ASSEMBLED OR DELIVERED - TO IMPOSE A TAX MEASURED BY, AND EFFECTIVELY
BEARING UPON, THE SAME GROSS SALES RECEIPTS.  SEE NOTE, 38 WASH. L.
REV. 277, 281 (1963).  PRESUMABLY, IF THERE IS TO BE A LIMITATION ON
THE TAXING POWER OF EACH OF THESE STATES, THAT LIMITATION SURELY CANNOT
BE ON A FIRST-COME-FIRST-TAX BASIS.  ALTERNATIVELY, IF DIVERSE LOCAL
INCIDENTS CAN AFFORD BASES FOR MULTISTATE TAXATION OF THE SAME
INTERSTATE SALE, THEN THE COURT IS LEFT TO DETERMINE, OUT OF SOME
HYPOTHETICAL MAXIMUM TAXABLE AMOUNT, WHICH PROPORTION IS "FAIR" FOR
EACH OF THE STATES HAVING A SUFFICIENT "IN-STATE" CONTACT WITH THE
INTERSTATE TRANSACTION.    THE BURDEN ON INTERSTATE COMMERCE AND THE
DANGERS OF MULTIPLE TAXATION ARE MADE APPARENT BY CONSIDERING
WASHINGTON'S TAX PROVISIONS.  THE WASHINGTON PROVISION HERE INVOLVED -
THE "TAX ON WHOLESALERS" - PROVIDES THAT EVERY PERSON "ENGAGING WITHIN
THIS STATE IN THE BUSINESS OF MAKING SALES AT WHOLESALE" SHALL PAY A
TAX ON SUCH BUSINESS "EQUAL TO THE GROSS PROCEEDS OF SALES OF SUCH
BUSINESS MULTIPLIED BY THE RATE OF ONE-QUARTER OF ONE PER CENT."  REV.
CODE WASH. 82.04.270; WASH. LAWS 1949, C. 228, SEC. 1(E).  (FN3)  IN
THE SAME CHAPTER WASHINGTON IMPOSES A "TAX ON MANUFACTURERS" WHICH
SIMILARLY PROVIDES THAT EVERY PERSON "ENGAGING WITHIN THIS STATE IN
BUSINESS AS A MANUFACTURER" SHALL PAY A TAX ON SUCH BUSINESS "EQUAL TO
THE VALUE OF THE PRODUCTS  ... MANUFACTURED, MULTIPLIED BY THE RATE OF
ONE-QUARTER OF ONE PER CENT." REV. CODE WASH. 82.04.240; WASH. LAWS
1949, C. 228, SEC. 1(B).  THEN IN A PROVISION ENTITLED "PERSONS TAXABLE
ON MULTIPLE ACTIVITIES" THE STATUTE ENDEAVORS TO INSURE THAT LOCAL
WASHINGTON PRODUCTS WILL NOT BE SUBJECTED BOTH TO THE "TAX ON
MANUFACTURERS" AND TO THE "TAX ON WHOLESALERS."  REV.  CODE WASH.
82.04.440; WASH. LAWS 1949, C. 228, SEC. 2-A.  PRIOR TO ITS AMENDMENT
IN 1950 THE EXEMPTIVE TERMS OF THIS "MULTIPLE ACTIVITIES" PROVISION
WERE DESIGNED SO THAT A WASHINGTON MANUFACTURER-WHOLESALER WOULD PAY
THE MANUFACTURING TAX AND BE EXEMPT FROM THE WHOLESALE TAX.  THIS
PROVISION, ON ITS FACE, DISCRIMINATED AGAINST INTERSTATE WHOLESALE
SALES TO WASHINGTON PURCHASERS FOR IT EXEMPTED THE INTRASTATE SALES OF
LOCALLY MADE PRODUCTS WHILE TAXING THE COMPETING SALES OF INTERSTATE
SELLERS.  IN 1950, HOWEVER, THE "MULTIPLE ACTIVITIES" PROVISION WAS
AMENDED, REVERSING THE TAX AND THE EXEMPTION, SO THAT A WASHINGTON
MANUFACTURER-WHOLESALER WOULD FIRST BE SUBJECTED TO THE WHOLESALE TAX
AND THEN, TO THE EXTENT THAT HE IS TAXED THEREUNDER, EXEMPTED FROM THE
MANUFACTURING TAX.  REV. CODE WASH. 82.04.440; WASH. LAWS 1950 (SPECIAL
SESSION), C. 5, SEC. 2.  SEE MCDONNELL & MCDONNELL V. STATE, 62 WASH.
2D 553, 557, 383 P.2D 905, 908.  THIS AMENDED PROVISION WOULD SEEM TO
HAVE ESSENTIALLY THE SAME ECONOMIC EFFECT ON INTERSTATE SALES BUT HAS
THE ADVANTAGE OF APPEARING NONDISCRIMINATORY. 

EVEN UNDER THE AMENDED "MULTIPLE ACTIVITIES" EXEMPTION, HOWEVER, AN
OUT-OF-STATE FIRM MANUFACTURING GOODS IN A STATE HAVING THE SAME
TAXATION PROVISIONS AS DOES WASHINGTON WOULD BE SUBJECTED TO TWO TAXES
ON INTERSTATE SALES TO WASHINGTON CUSTOMERS.  THE FIRM WOULD PAY THE
PRODUCING STATE A LOCAL MANUFACTURING TAX MEASURED BY SALES RECEIPTS
AND WOULD ALSO PAY WASHINGTON A TAX ON WHOLESALE SALES TO WASHINGTON
RESIDENTS.  UNDER SUCH TAXATION PROGRAMS, IF AN OUT-OF-STATE
MANUFACTURER COMPETES WITH A WASHINGTON MANUFACTURER, THE OUT-OF-STATE
MANUFACTURER MAY BE SERIOUSLY DISADVANTAGED BY THE DUPLICATIVE
TAXATION.  EVEN IF THE OUT-OF-STATE FIRM HAS NO WASHINGTON COMPETITORS,
THE IMPOSITION OF INTERSTATE SALES TAXES, WHICH ADD TO THE COST OF
PRODUCING, MAY DIMINISH THE DEMAND FOR THE PRODUCT IN WASHINGTON AND
THUS AFFECT THE ALLOCATION OF RESOURCES IN THE NATIONAL ECONOMY. 
MOREOVER, THE THREAT OF DUPLICATIVE TAXATION, EVEN WHERE THERE IS NO
COMPETITOR MANUFACTURING IN THE CONSUMING STATE, MAY COMPEL THE OUT-OF
STATE PRODUCER TO RELOCATE HIS MANUFACTURING OPERATIONS TO AVOID
MULTIPLE TAXATION.  THUS TAXES SUCH AS THE ONE UPHELD TODAY MAY
DISCOURAGE THE DEVELOPMENT OF MULTISTATE BUSINESS OPERATIONS AND THE
MOST ADVANTAGEOUS DISTRIBUTION OF OUR NATIONAL RESOURCES; THE ECONOMIC
EFFECT INHIBITS THE REALIZATION OF A FREE AND OPEN ECONOMY UNENCUMBERED
BY LOCAL TARIFFS AND PROTECTIVE DEVICES.  AS THE COURT SAID IN MCLEOD
V. J.E. DILWORTH CO., 322 U.S., AT 330-331: "THE VERY PURPOSE OF THE
COMMERCE CLAUSE WAS TO CREATE AN AREA OF FREE TRADE AMONG THE SEVERAL
STATES.  THAT CLAUSE VESTED THE POWER OF TAXING A TRANSACTION FORMING
AN UNBROKEN PROCESS OF INTERSTATE COMMERCE IN THE CONGRESS, NOT IN THE
STATES." 

IT MAY BE URGED THAT THE WASHINGTON TAX SHOULD BE UPHELD BECAUSE IT
TAXES IN A NONDISCRIMINATORY FASHION ALL WHOLESALE SALES, INTRASTATE AN
INTERSTATE, TO WASHINGTON PURCHASERS.  THE COMMERCE CLAUSE, HOWEVER,
WAS DESIGNED, AS MR. JUSTICE JACKSON SAID IN H.P. HOOD & SONS, INC., V.
DU MOND, 336 U.S. 525, 538, TO CREATE A "FEDERAL FREE TRADE UNIT" - A
COMMON NATIONAL MARKET AMONG THE STATES; AND THE CONSTITUTION THEREBY
PRECLUDES A STATE FROM DEFENDING A TAX ON INTERSTATE SALES ON THE
GROUND THAT THE STATE TAXES INTRASTATE SALES GENERALLY. 
NONDISCRIMINATION ALONE IS NO BASIS FOR BURDENING THE FLOW OF
INTERSTATE COMMERCE.  THE COMMERCE CLAUSE "DOES NOT MERELY FORBID A
STATE TO SINGLE OUT INTERSTATE COMMERCE FOR HOSTILE ACTION.  A STATE IS
ALSO PRECLUDED FROM TAKING ANY ACTION WHICH MAY FAIRLY BE DEEMED TO
HAVE THE EFFECT OF IMPEDING THE FREE FLOW OF TRADE BETWEEN STATES.  IT
IS IMMATERIAL THAT LOCAL COMMERCE IS SUBJECTED TO A SIMILAR
ENCUMBRANCE."  FREEMAN V. HEWIT, 329 U.S., AT 252.  A STATE THEREFORE
SHOULD NOT BE ENABLED TO PUT OUT-OF-STATE PRODUCERS AND MERCHANTS AT A
DISADVANTAGE BY IMPOSING A TAX TO "EQUALIZE" THEIR COSTS WITH THOSE OF
LOCAL BUSINESSMEN WHO WOULD OTHERWISE SUFFER A COMPETITIVE DISADVANTAGE
BECAUSE OF THE STATE'S OWN TAXATION SCHEME.  THE DISADVANTAGE STEMMING
FROM THE WHOLESALE SALES TAX WAS CREATED BY THE STATE ITSELF AND
THEREFORE THE FACT THAT THE STATE SIMULTANEOUSLY IMPOSES THE SAME TAX
ON INTERSTATE AND INTRASTATE TRANSACTIONS SHOULD NOT OBSCURE THE FACT
THAT INTERSTATE COMMERCE IS BEING BURDENED IN ORDER TO PROTECT THE
LOCAL MARKET.  (FN4) 

IN MY VIEW THE RULES SET FORTH IN NORTON CO. V. DEPARTMENT OF
REVENUE, SUPRA, REFLECT AN ATTEMPT TO ADHERE TO THE BASIC PURPOSES OF
THE COMMERCE CLAUSE.  THEREFORE, IN DEALING WITH UNAPPORTIONED TAXES ON
INTERSTATE SALES, I WOULD ADHERE TO THE NORTON RULES INSTEAD OF
DEPARTING FROM THEM BY ADOPTING A STANDARD OF "FAIRNESS."  I WOULD HOLD
THAT A MANUFACTURER OR WHOLESALER MAKING INTERSTATE SALES IS NOT
SUBJECT TO A STATE GROSS RECEIPTS TAX MERELY BECAUSE THOSE SALES WERE
SOLICITED OR PROCESSED BY AGENTS LIVING OR TRAVELING IN THE TAXING
STATE.  AS NORTON RECOGNIZED, A DIFFERENT RULE MAY BE APPLIED TO THE
TAXATION OF SALES SUBSTANTIALLY CONNECTED WITH AN OFFICE OR WAREHOUSE
MAKING INTRASTATE SALES.  THE TEST ADOPTED BY THE COURT TODAY, IF
FOLLOWED LOGICALLY IN FUTURE CASES, WOULD SEEM TO MEAN THAT STATES WILL
BE PERMITTED TO TAX WHOLLY INTERSTATE SALES BY ANY COMPANY SELLING
THROUGH LOCAL AGENTS OR TRAVELING SALESMEN.  SUCH A RULE MAY LEAVE ONLY
MAILORDER HOUSES FREE FROM STATE TAXES ON INTERSTATE SALES.  WITH FULL
SYMPATHY FOR THE REVENUE NEEDS OF STATES, I BELIEVE THERE ARE OTHER
LEGITIMATE MEANS OF RAISING STATE REVENUES WITHOUT UNDERMINING THE
COMMON NATIONAL MARKET CREATED BY THE COMMERCE CLAUSE.  I THEREFORE
RESPECTFULLY DISSENT. 

FN1  THE TAX PERIODS INVOLVED IN THIS CASE ARE FROM JANUARY 1, 1949,
THROUGH JUNE 30, 1953. 

FN2  WITH RESPECT TO THE VIEW THAT THE APPLICATION OF THE COMMERCE
CLAUSE DEPENDS UPON THE EXISTENCE OF ACTUAL, AS DISTINGUISHED FROM
POTENTIAL, MULTIPLE TAXATION, COMPARE FREEMAN V. HEWIT, 329 U.S. 249,
256:  "IT IS SUGGESTED  ...  THAT THE VALIDITY OF A GROSS SALES TAX
SHOULD DEPEND ON WHETHER ANOTHER STATE HAS ALSO SOUGHT TO IMPOSE ITS
BURDEN ON THE TRANSACTIONS.  IF ANOTHER STATE HAS TAXED THE SAME
INTERSTATE TRANSACTION, THE BURDENSOME CONSEQUENCES TO INTERSTATE TRADE
ARE UNDENIABLE.  BUT THAT, FOR THE TIME BEING, ONLY ONE STATE HAS TAXED
IS IRRELEVANT TO THE KIND OF FREEDOM OF TRADE WHICH THE COMMERCE CLAUSE
GENERATED.  THE IMMUNITIES IMPLICIT IN THE COMMERCE CLAUSE AND THE
POTENTIAL TAXING POWER OF A STATE CAN HARDLY BE MADE TO DEPEND, IN THE
WORLD OF PRACTICAL AFFAIRS, ON THE SHIFTING INCIDENCE OF THE VARYING
TAX LAWS OF THE VARIOUS STATES AT A PARTICULAR MOMENT.  COURTS ARE NOT
POSSESSED OF INSTRUMENTS OF DETERMINATION SO DELICATE AS TO ENABLE THEM
TO WEIGH THE VARIOUS FACTORS IN A COMPLICATED ECONOMIC SETTING WHICH,
AS TO AN ISOLATED APPLICATION OF A STATE TAX, MIGHT MITIGATE THE
OBVIOUS BURDEN GENERALLY CREATED BY A DIRECT TAX ON COMMERCE." 

FN3  SEE NOTE 1, SUPRA. 

FN4  CF. BALDWIN V. G.A.F. SEELIG, INC., 294 U.S. 511, 523:  "TO GIVE
ENTRANCE TO THAT EXCUSE ("THE ECONOMIC WELFARE OF THE FARMERS OR OF ANY
OTHER CLASS OR CLASSES" OF LOCAL BUSINESSMEN) WOULD BE TO INVITE A
SPEEDY END OF OUR NATIONAL SOLIDARITY.  THE CONSTITUTION WAS FRAMED
UNDER THE DOMINION OF A POLITICAL PHILOSOPHY LESS PAROCHIAL IN RANGE. 
IT WAS FRAMED UPON THE THEORY THAT THE PEOPLES OF THE SEVERAL STATES
MUST SINK OR SWIM TOGETHER, AND THAT IN THE LONG RUN PROSPERITY AND
SALVATION ARE IN UNION AND NOT DIVISION."  SEE H.P. HOOD & SONS, INC.,
V. DU MOND, 336 U.S. 525, 532-539. 
..END :











UNITED STATES V. TATEO 377 U.S. 463 


NO. 328.  ARGUED APRIL 20, 1964.  - DECIDED JUNE 8, 1964.  - 216 F.
SUPP. 850, REVERSED AND REMANDED. 


RESPONDENT, WHEN INFORMED DURING TRIAL OF THE TRIAL JUDGE'S EXPRESSED
INTENTION IF THE JURY FOUND HIM GUILTY TO IMPOSE A LIFE SENTENCE ON A
KIDNAPING CHARGE AND CONSECUTIVE SENTENCES ON OTHER FELONY CHARGES,
PLEADED GUILTY, WHEREUPON THE JURY WAS DISCHARGED, THE KIDNAPING COUNT
DISMISSED, AND THE SENTENCE IMPOSED ON THE REMAINING COUNTS.  IN A
SUBSEQUENT PROCEEDING UNDER 28 U.S.C. SEC. 2255, ANOTHER DISTRICT
JUDGE, DOUBTING THAT RESPONDENT'S GUILTY PLEA WAS VOLUNTARY, SET ASIDE
THE CONVICTION AND GRANTED A NEW TRIAL.  A THIRD TRIAL JUDGE DISMISSED
ALL CHARGES, HOLDING THAT REPROSECUTION WAS BARRED BY THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT.  HELD:  RETRIAL OF A DEFENDANT
WHOSE CONVICTION IS SET ASIDE ON COLLATERAL ATTACK FOR ERROR IN THE
PROCEEDINGS LEADING TO CONVICTION IS NOT BARRED FOR DOUBLE JEOPARDY. 
UNITED STATES V. BALL, 163 U.S. 662, FOLLOWED; DOWNUM V. UNITED STATES,
372 U.S. 734, DISTINGUISHED.  PP. 463-468. 

UNITED STATES V. TATEO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER A FEDERAL CRIMINAL DEFENDANT
WHO HAS HAD HIS CONVICTION OVERTURNED IN COLLATERAL PROCEEDINGS ON THE
GROUND THAT A GUILTY PLEA ENTERED BY HIM DURING TRIAL WAS NOT VOLUNTARY
BUT INDUCED IN PART BY COMMENTS OF THE TRIAL JUDGE, MAY BE TRIED AGAIN
FOR THE SAME CRIMES OR IS PROTECTED AGAINST SUCH A PROSECUTION BY THE
DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT.  WE HOLD THAT UNDER
THESE CIRCUMSTANCES RETRIAL DOES NOT INFRINGE THE CONSTITUTIONAL
PROTECTION AGAINST DOUBLE JEOPARDY. 

ON MAY 15, 1956, THE APPELLEE, TATEO, AND ANOTHER WERE BROUGHT TO
TRIAL BEFORE A JURY ON A FIVE-COUNT INDICTMENT CHARGING BANK ROBBERY
(18 U.S.C. SEC. 2113(A)); KIDNAPING IN CONNECTION WITH THE ROBBERY (18
U.S.C. SEC. 2113(E)); TAKING AND CARRYING AWAY BANK MONEY (18 U.S.C.
SEC. 2113(B)); RECEIVING AND POSSESSING STOLEN BANK MONEY (18 U.S.C.
SEC. 2113(C)); AND CONSPIRACY (18 U.S.C. SEC. 371) TO COMMIT SOME OF
THESE SUBSTANTIVE OFFENSES.  ON THE FOURTH DAY OF TRIAL, THE JUDGE
INFORMED TATEO'S COUNSEL THAT IF TATEO WERE FOUND GUILTY BY THE JURY HE
WOULD IMPOSE A LIFE SENTENCE ON THE KIDNAPING CHARGE AND CONSECUTIVE
SENTENCES ON THE OTHER CHARGES.  UPON BEING TOLD OF THE JUDGE'S
POSITION AND ADVISED BY HIS COUNSEL THAT THE LIKELIHOOD OF CONVICTION
WAS GREAT, TATEO PLEADED GUILTY, AS DID HIS CODEFENDANT.  THEREUPON THE
JURY WAS DISCHARGED; THE KIDNAPING COUNT WAS DISMISSED WITH THE
PROSECUTION'S CONSENT; AND TATEO WAS SENTENCED TO A TOTAL OF 22 YEARS
AND 6 MONTHS IMPRISONMENT ON THE OTHER COUNTS. 

IN A LATER PROCEEDING UNDER 28 U.S.C. SEC. 2255, ANOTHER DISTRICT
JUDGE (JUDGE WEINFELD) GRANTED TATEO'S MOTION TO SET ASIDE THE JUDGMENT
OF CONVICTION AND FOR A NEW TRIAL, DETERMINING THAT THE CUMULATIVE
IMPACT OF THE TRIAL TESTIMONY, THE TRIAL JUDGE'S EXPRESSED VIEWS ON
PUNISHMENT, AND THE STRONG ADVICE GIVEN BY HIS COUNSEL RENDERED IT
DOUBTFUL THAT TATEO POSSESSED THE FREEDOM OF WILL NECESSARY FOR A
VOLUNTARY PLEA OF GUILTY.  214 F. SUPP. 560. 

AFTER BEING REINDICTED ON THE KIDNAPING CHARGE, TATEO WAS BROUGHT
BEFORE A THIRD DISTRICT JUDGE (JUDGE TYLER) FOR TRIAL ON THAT CHARGE
AND THE FOUR BANK ROBBERY CHARGES TO WHICH HE HAD EARLIER PLEADED
GUILTY.  UPON MOTIONS BY DEFENSE, JUDGE TYLER DISMISSED BOTH THE
KIDNAPING COUNT, NOW ABANDONED BY THE GOVERNMENT, AND THE OTHER FOUR
COUNTS.  HE REASONED THAT, SINCE NEITHER GENUINE CONSENT NOR AN
"EXCEPTIONAL CIRCUMSTANCE" UNDERLAY THE TERMINATION OF THE FIRST TRIAL
AND NO "WAIVER" OF THE DOUBLE JEOPARDY CLAIM HAD BEEN MADE BY TATEO,
THE GOVERNMENT WAS PRECLUDED FROM RETRYING HIM.  216 F. SUPP. 850.  THE
GOVERNMENT APPEALED, IN ACCORD WITH 18 U.S.C. SEC. 3731, WHICH PERMITS
DIRECT APPEAL TO THIS COURT FROM A DECISION OF A DISTRICT COURT
SUSTAINING A MOTION IN BAR BEFORE THE DEFENDANT HAS BEEN PUT IN
JEOPARDY.  WE NOTED PROBABLE JURISDICTION, 375 U.S. 877.  FOR REASONS
GIVEN BELOW, WE REVERSE THE JUDGMENT OF THE DISTRICT COURT. 

THE FIFTH AMENDMENT PROVIDES THAT NO "PERSON SHALL BE SUBJECT FOR THE
SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB  ...  ."  THE
PRINCIPLE THAT THIS PROVISION DOES NOT PRECLUDE THE GOVERNMENT'S
RETRYING A DEFENDANT WHOSE CONVICTION IS SET ASIDE BECAUSE OF AN ERROR
IN THE PROCEEDINGS LEADING TO CONVICTION IS A WELL-ESTABLISHED PART OF
OUR CONSTITUTIONAL JURISPRUDENCE.  IN THIS RESPECT WE DIFFER FROM THE
PRACTICE OBTAINING IN ENGLAND.  THE RULE IN THIS COUNTRY WAS EXPLICITLY
STATED IN UNITED STATES V. BALL, 163 U.S. 662, 671-672, A CASE IN WHICH
DEFENDANTS WERE REINDICTED AFTER THIS COURT HAD FOUND THE ORIGINAL
INDICTMENT TO BE DEFECTIVE.  IT HAS BEEN FOLLOWED IN A VARIETY OF
CIRCUMSTANCES; SEE, E.G., STROUD V. UNITED STATES, 251 U.S. 15 (AFTER
CONVICTION REVERSED BECAUSE OF CONFESSION OF ERROR); BRYAN V. UNITED
STATES, 338 U.S. 552 (AFTER CONVICTION REVERSED BECAUSE OF INSUFFICIENT
EVIDENCE); FORMAN V. UNITED STATES, 361 U.S. 416 (AFTER ORIGINAL
CONVICTION REVERSED FOR ERROR IN INSTRUCTIONS TO THE JURY).  (FN1) 

THAT A DEFENDANT'S CONVICTION IS OVERTURNED ON COLLATERAL RATHER THAN
DIRECT ATTACK IS IRRELEVANT FOR THESE PURPOSES, SEE ROBINSON V. UNITED
STATES, 144 F.2D 392, 396, 397, AFF'D ON ANOTHER GROUND, 324 U.S. 282. 
COURTS ARE EMPOWERED TO GRANT NEW TRIALS UNDER 28 U.S.C. SEC. 2255, AND
IT WOULD BE INCONGRUOUS TO COMPEL GREATER RELIEF FOR ONE WHO PROCEEDS
COLLATERALLY THAN FOR ONE WHOSE RIGHTS ARE VINDICATED ON DIRECT
REVIEW. 

WHILE DIFFERENT THEORIES HAVE BEEN ADVANCED TO SUPPORT THE
PERMISSIBILITY OF RETRIAL, OF GREATER IMPORTANCE THAN THE CONCEPTUAL
ABSTRACTIONS EMPLOYED TO EXPLAIN THE BALL PRINCIPLE ARE THE
IMPLICATIONS OF THAT PRINCIPLE FOR THE SOUND ADMINISTRATION OF
JUSTICE.  CORRESPONDING TO THE RIGHT OF AN ACCUSED TO BE GIVEN A FAIR
TRIAL IS THE SOCIETAL INTEREST IN PUNISHING ONE WHOSE GUILT IS CLEAR
AFTER HE HAS OBTAINED SUCH A TRIAL.  IT WOULD BE A HIGH PRICE INDEED
FOR SOCIETY TO PAY WERE EVERY ACCUSED GRANTED IMMUNITY FROM PUNISHMENT
BECAUSE OF ANY DEFECT SUFFICIENT TO CONSTITUTE REVERSIBLE ERROR IN THE
PROCEEDINGS LEADING TO CONVICTION.  FROM THE STANDPOINT OF A DEFENDANT,
IT IS AT LEAST DOUBTFUL THAT APPELLATE COURTS WOULD BE AS ZEALOUS AS
THEY NOW ARE IN PROTECTING AGAINST THE EFFECTS OF IMPROPRIETIES AT THE
TRIAL OR PRETRIAL STAGE IF THEY KNEW THAT REVERSAL OF A CONVICTION
WOULD PUT THE ACCUSED IRREVOCABLY BEYOND THE REACH OF FURTHER
PROSECUTION.  IN REALITY, THEREFORE, THE PRACTICE OF RETRIAL SERVES
DEFENDANTS' RIGHTS AS WELL AS SOCIETY'S INTEREST.  THE UNDERLYING
PURPOSE OF PERMITTING RETRIAL IS AS MUCH FURTHERED BY APPLICATION OF
THE RULE TO THIS CASE AS IT HAS BEEN IN CASES PREVIOUSLY DECIDED. 

TATEO CONTENDS THAT HIS SITUATION MUST BE DISTINGUISHED FROM ONE IN
WHICH AN ACCUSED HAS BEEN FOUND GUILTY BY A JURY, SINCE HIS INVOLUNTARY
PLEA OF GUILTY DEPRIVED HIM OF THE OPPORTUNITY TO OBTAIN A JURY VERDICT
OF ACQUITTAL.  WE FIND THIS ARGUMENT UNCONVINCING.  IF A CASE IS
REVERSED BECAUSE OF A COERCED CONFESSION IMPROPERLY ADMITTED, A
DEFICIENCY IN THE INDICTMENT, OR AN IMPROPER INSTRUCTION, IT IS
PRESUMED THAT THE ACCUSED DID NOT HAVE HIS CASE FAIRLY PUT TO THE
JURY.  A DEFENDANT IS NO LESS WRONGED BY A JURY FINDING OF GUILT AFTER
AN UNFAIR TRIAL THAN BY A FAILURE TO GET A JURY VERDICT AT ALL; THE
DISTINCTION BETWEEN THE TWO KINDS OF WRONGS AFFORDS NO SENSIBLE BASIS
FOR DIFFERENTIATION WITH REGARD TO RETRIAL.  (FN2)  APPELLEE'S ARGUMENT
IS CONSIDERABLY LESS STRONG THAN A SIMILAR ONE REJECTED IN BRYAN V.
UNITED STATES, SUPRA.  IN THAT CASE THE COURT HELD THAT DESPITE THE
COURT OF APPEALS' DETERMINATION THAT DEFENDANT HAD BEEN ENTITLED -
BECAUSE OF INSUFFICIENCY IN THE EVIDENCE - TO A DIRECTED VERDICT OF
ACQUITTAL, REVERSAL OF THE CONVICTION WITH A DIRECTION OF A NEW TRIAL
WAS A PERMISSIBLE DISPOSITION. 

DOWNUM V. UNITED STATES, 372 U.S. 734, IS IN NO WAY INCONSISTENT WITH
PERMITTING A RETRIAL HERE.  THERE THE COURT HELD THAT WHEN A JURY IS
DISCHARGED BECAUSE THE PROSECUTION IS NOT READY TO GO FORWARD WITH ITS
CASE, THE ACCUSED MAY NOT THEN BE TRIED BEFORE ANOTHER JURY.  THE
OPINION RECOGNIZED, HOWEVER, THAT THERE ARE CIRCUMSTANCES IN WHICH A
MISTRIAL DOES NOT PRECLUDE A SECOND TRIAL, SEE, E.G., UNITED STATES V.
PEREZ, 9 WHEAT.  579 (JURY UNABLE TO AGREE); SIMMONS V. UNITED STATES,
142 U.S. 148 (LIKELIHOOD THAT A JUROR SUBJECT TO BIAS).  IN GORI V.
UNITED STATES, 367 U.S. 364, WE SUSTAINED A SECOND CONVICTION AFTER THE
ORIGINAL TRIAL JUDGE DECLARED A MISTRIAL ON THE GROUND OF POSSIBLE
PREJUDICE TO THE DEFENDANT, ALTHOUGH THE JUDGE ACTED WITHOUT
DEFENDANT'S CONSENT AND THE WISDOM OF GRANTING A MISTRIAL WAS
DOUBTFUL.  IF TATEO HAD REQUESTED A MISTRIAL ON THE BASIS OF THE
JUDGE'S COMMENTS, THERE WOULD BE NO DOUBT THAT IF HE HAD BEEN
SUCCESSFUL, THE GOVERNMENT WOULD NOT HAVE BEEN BARRED FROM RETRYING
HIM.  SEE GORI V. UNITED STATES, 367 U.S., AT 368; SEE ALSO 367 U.S.,
AT 370 (DISSENTING OPINION OF DOUGLAS, J.).  (FN3)  ALTHOUGH THERE MAY
BE GOOD REASONS WHY TATEO AND HIS COUNSEL CHOSE NOT TO MAKE SUCH A
MOTION BEFORE THE TRIAL JUDGE, IT WOULD BE STRANGE WERE TATEO TO
BENEFIT BECAUSE OF HIS DELAY IN CHALLENGING THE JUDGE'S CONDUCT. 
(FN4) 

WE CONCLUDE THAT THIS CASE FALLS SQUARELY WITHIN THE REASONING OF
BALL AND SUBSEQUENT CASES ALLOWING THE GOVERNMENT TO RETRY PERSONS
WHOSE CONVICTIONS HAVE BEEN OVERTURNED.  THE JUDGMENT BELOW IS
THEREFORE REVERSED AND THE CASE REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO REINSTATE THE FOUR BANK ROBBERY COUNTS.  IT IS SO
ORDERED. 

FN1  GREEN V. UNITED STATES, 355 U.S. 184, DOES NOT UNDERMINE THIS
SETTLED PRACTICE; IT HOLDS ONLY THAT WHEN ONE IS CONVICTED OF A LESSER
OFFENSE INCLUDED IN THAT CHARGED IN THE ORIGINAL INDICTMENT, HE CAN BE
RETRIED ONLY FOR THE OFFENSE OF WHICH HE WAS CONVICTED RATHER THAN THAT
WITH WHICH HE WAS ORIGINALLY CHARGED. 

FN2  IT IS ALSO DIFFICULT TO UNDERSTAND WHY TATEO SHOULD BE TREATED
DIFFERENTLY FROM ONE WHO IS COERCED INTO PLEADING GUILTY BEFORE A JURY
IS IMPANELED. 

FN3  IF THERE WERE ANY INTIMATION IN A CASE THAT PROSECUTORIAL OR
JUDICIAL IMPROPRIETY JUSTIFYING A MISTRIAL RESULTED FROM A FEAR THAT
THE JURY WAS LIKELY TO ACQUIT THE ACCUSED, DIFFERENT CONSIDERATIONS
WOULD, OF COURSE, OBTAIN. 

FN4  THE DISSENT (POST, P. 474) ENTIRELY MISCONCEIVES THE THRUST OF
THIS ARGUMENT.  THE POINT IS NOT WHETHER ONE COULD HAVE EXPECTED TATEO
TO ASK FOR A MISTRIAL.  RATHER, IT IS WHETHER, IF SUCH A REQUEST HAD
BEEN MADE AND EITHER HAD BEEN GRANTED OR HAD UNDERLAIN REVERSAL ON
DIRECT REVIEW, TATEO COULD HAVE BEEN TRIED AGAIN.  IF HE COULD HAVE
BEEN TRIED AGAIN, A DECISION PROSCRIBING RETRIAL IF ATTACK IS
COLLATERAL WOULD MEAN THAT ANY LAWYER WORTH HIS SALT WOULD FORBEAR
REQUESTING A MISTRIAL IN SIMILAR CIRCUMSTANCES, EVEN WERE HE CERTAIN
THAT HIS POSITION WOULD BE SUSTAINED BY THE TRIAL JUDGE OR ON REVIEW. 
THAT ANY JUDICIAL SYSTEM SHOULD ENCOURAGE LITIGANTS TO RAISE OBJECTIONS
AT THE EARLIEST RATHER THAN LATEST POSSIBLE TIME SEEMS SELF-EVIDENCE. 
IN OTHER WORDS, SIMPLE LOGIC COMPELS THE CONCLUSION THAT IF THE COURT
PRECLUDED RETRIAL HERE, IT WOULD ALSO HAVE TO PRECLUDE RETRIAL IN A
SIMILAR CASE IN WHICH A MISTRIAL IS GRANTED.  SUCH A RESULT WOULD
CONTRADICT THE LANGUAGE OF BOTH THE PREVAILING AND DISSENTING OPINIONS
IN GORI. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

I WOULD AFFIRM THE DISTRICT COURT'S HOLDING, 216 F. SUPP. 850, THAT
UNDER OUR DECISION LAST TERM IN DOWNUM V. UNITED STATES, 372 U.S. 734,
THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT PROTECTS TATEO
AGAINST REPROSECUTION.  THE COURT TODAY DEPARTS FROM DOWNUM AND IN SO
DOING SUBSTANTIALLY WEAKENS THE CONSTITUTIONAL GUARANTEE.  DOWNUM WAS
CORRECTLY DECIDED AND DESERVES A LIFE LONGER THAN THAT ACCORDED IT BY
THE DECISION TODAY.  RATHER THAN MAKING ANY REAL EFFORT TO DISTINGUISH
DOWNUM, THE COURT LIMITS IT TO ITS PARTICULAR FACTS AND REAFFIRMS,
INDEED EXTENDS, THE DOUBTFUL HOLDING OF THE NARROW MAJORITY IN GORI V.
UNITED STATES, 367 U.S. 364 (FN1) - A HOLDING WHICH, IN MY VIEW,
DEPARTS FROM DOWNUM'S MORE HOSPITABLE ATTITUDE TOWARD THE "POLICY OF
THE BILL OF RIGHTS  ...  TO MAKE RARE INDEED THE OCCASIONS WHEN THE
CITIZEN CAN FOR THE SAME OFFENSE BE REQUIRED TO RUN THE GANTLET
TWICE."  GORI V. UNITED STATES, SUPRA, AT 373 (DOUGLAS, J.,
DISSENTING).  (FN2)  A COMPARISON OF THE FACTS AND RATIONALE OF DOWNUM
WITH THOSE HERE REVEALS THAT THIS CASE CALLS MORE LOUDLY THAN DOWNUM
FOR PROTECTION AGAINST DOUBLE JEOPARDY. 

IN DOWNUM, ON THE MORNING THE CASE WAS CALLED FOR TRIAL BOTH SIDES
ANNOUNCED READY.  A JURY WAS SELECTED, SWORN, AND INSTRUCTED TO RETURN
AT 2 P.M.  WHEN IT RETURNED THE PROSECUTION ASKED THAT THE JURY BE
DISCHARGED BECAUSE ITS KEY WITNESS ON TWO COUNTS OF THE INDICTMENT WAS
NOT PRESENT - A FACT DISCOVERED BY THE PROSECUTOR ONLY DURING THE NOON
RECESS.  IT WAS NOT CONTENDED THAT THE FAILURE TO SECURE THE ATTENDANCE
OF THIS WITNESS WAS IN ANY WAY DELIBERATE OR BASED UPON THE
PROSECUTOR'S CONCLUSION THAT THE IMPANELED JURY WAS LIKELY TO ACQUIT. 
INSTEAD, THE "JURY FIRST SELECTED TO TRY PETITIONER AND SWORN WAS
DISCHARGED BECAUSE A PROSECUTION WITNESS HAD NOT BEEN SERVED WITH A
SUMMONS AND BECAUSE NO OTHER ARRANGEMENTS HAD BEEN MADE TO ASSURE HIS
PRESENCE."  DOWNUM V. UNITED STATES, SUPRA, AT 737.  IN SUSTAINING THE
CLAIM OF DOUBLE JEOPARDY AS TO A RETRIAL COMMENCED TWO DAYS LATER, THIS
COURT SAID: 

"AT TIMES THE VALUED RIGHT OF A DEFENDANT TO HAVE HIS TRIAL COMPLETED
BY THE PARTICULAR TRIBUNAL SUMMONED TO SIT IN JUDGMENT ON HIM MAY BE
SUBORDINATED TO THE PUBLIC INTEREST - WHEN THERE IS AN IMPERIOUS
NECESSITY TO DO SO.  WADE V. HUNTER, SUPRA, 690.  DIFFERENCES HAVE
ARISEN AS TO THE APPLICATION OF THE PRINCIPLE.  SEE BROCK V. NORTH
CAROLINA, 344 U.S. 424; GREEN V. UNITED STATES, 355 U.S. 184, 188. 
HARASSMENT OF AN ACCUSED BY SUCCESSIVE PROSECUTIONS OR DECLARATION OF A
MISTRIAL SO AS TO AFFORD THE PROSECUTION A MORE FAVORABLE OPPORTUNITY
TO CONVICT ARE EXAMPLES WHEN JEOPARDY ATTACHES.  GORI V. UNITED STATES,
SUPRA, 369.  BUT THOSE EXTREME CASES DO NOT MARK THE LIMITS OF THE
GUARANTEE.  THE DISCRETION TO DISCHARGE THE JURY BEFORE IT HAS REACHED
A VERDICT IS TO BE EXERCISED 'ONLY IN VERY EXTRAORDINARY AND STRIKING
CIRCUMSTANCES,' TO USE THE WORDS OF MR. JUSTICE STORY IN UNITED STATES
V. COOLIDGE, 25 FED. CAS. 622, 623.  FOR THE PROHIBITION OF THE DOUBLE
JEOPARDY CLAUSE IS 'NOT AGAINST BEING TWICE PUNISHED, BUT AGAINST BEING
TWICE PUT IN JEOPARDY.'  UNITED STATES V. BALL, 163 U.S. 662, 669." 
ID., AT 736.    THE COURT FURTHER SAID: 

"WE RESOLVE ANY DOUBT 'IN FAVOR OF THE LIBERTY OF THE CITIZEN, RATHER
THAN EXERCISE WHAT WOULD BE AN UNLIMITED, UNCERTAIN, AND ARBITRARY
JUDICIAL DISCRETION.'"  ID., AT 738. 

THE COURT THUS HELD THAT DOWNUM COULD NOT BE REPROSECUTED, SINCE, BY
VIRTUE OF PROSECUTORIAL NEGLECT, HE WAS DENIED HIS CONSTITUTIONAL RIGHT
TO HAVE THE IMPANELED JURY HEAR AND DECIDE HIS CASE. 

IN THE PRESENT CASE, AFTER FOUR DAYS OF TRIAL, THE TRIAL JUDGE, AS HE
PUT IT AT THE TIME OF SENTENCING, TOLD DEFENDANT'S COUNSEL: 

"  ...  IF HE IS CONVICTED BY THE JURY I INTEND TO GIVE HIM THE
ABSOLUTE MAXIMUM SENTENCE, A LIFE SENTENCE PLUS ALL OF THESE YEARS TO
FOLLOW THE LIFE SENTENCE. 

"IF ANYBODY WONDERS HOW ONE CAN SERVE A SENTENCE AFTER HE HAS SERVED
A LIFE SENTENCE, IT IS VERY SIMPLE, BECAUSE IN A LIFE SENTENCE YOU ARE
ELIBIBLE FOR PAROLE IN FIFTEEN YEARS; BUT WITH A SENTENCE TO FOLLOW A
LIFE SENTENCE, YOU ARE NOT ELIGIBLE FOR PAROLE ON THE LIFE SENTENCE,
AND YOU HAVE TO STAY IN JAIL FOR THE REST OF YOUR LIFE." 

AS A RESULT OF THIS COERCION BY THE TRIAL JUDGE, TATEO ENTERED A PLEA
OF GUILTY AND WAS SENTENCED TO IMPRISONMENT FOR 22 YEARS AND 6 MONTHS. 

AFTER TATEO SERVED ALMOST SEVEN YEARS IN PRISON, DISTRICT JUDGE
WEINFELD GRANTED HIS MOTION UNDER 28 U.S.C. SEC. 2255 TO VACATE THE
CONVICTION.  JUDGE WEINFELD FOUND THAT: 

"THE CHOICE OPEN TO THIS DEFENDANT WHEN APPRISED DURING THE TRIAL OF
THE COURT'S STATEMENT WAS RATHER SEVERELY LIMITED.  IF, AS WAS HIS
CONSTITUTIONAL RIGHT, HE CONTINUED WITH THE TRIAL AND WERE FOUND
GUILTY, HE FACED, IN THE LIGHT OF THE COURT'S ANNOUNCED ATTITUDE, THE
IMPOSITION OF A LIFE SENTENCE UPON THE KIDNAPPING CHARGE, PLUS
ADDITIONAL TIME UPON THE OTHER COUNTS, A SENTENCE WHICH HIS LAWYER
INFORMED HIM AND WHICH HE BELIEVED, NOT WITHOUT REASON, MEANT LIFE
IMPRISONMENT."  214 F. SUPP., AT 565-566. 

     *       *         *         *         * 

"NO MATTER HOW HEINOUS THE OFFENSE CHARGED, HOW OVERWHELMING THE
PROOF OF GUILT MAY APPEAR, OR HOW HOPELESS THE DEFENSE, A DEFENDANT'S
RIGHT TO CONTINUE WITH HIS TRIAL MAY NOT BE VIOLATED.  HIS
CONSTITUTIONAL RIGHT TO REQUIRE THE GOVERNMENT TO PROCEED TO A
CONCLUSION OF THE TRIAL AND TO ESTABLISH GUILT BY INDEPENDENT EVIDENCE
SHOULD NOT BE EXERCISED UNDER THE SHADOW OF A PENALTY - THAT IF HE
PERSISTS IN THE ASSERTION OF HIS RIGHT AND IS FOUND GUILTY, HE FACES,
IN VIEW OF THE TRIAL COURT'S ANNOUNCED INTENTION, A MAXIMUM SENTENCE,
AND IF HE PLEADS GUILTY THERE IS THE PROSPECT OF A SUBSTANTIALLY
REDUCED TERM."  ID., AT 567. 

     *         *         *         *         * 

"THE REALITIES OF HUMAN NATURE AND COMMON EXPERIENCE COMPEL THE
CONCLUSION THAT THE DEFENDANT WAS ENVELOPED BY A COERCIVE FORCE
RESULTING FROM THE KNOWLEDGE CONVEYED TO HIM OF THE COURT'S ATTITUDE AS
TO SENTENCE WHICH, UNDER ALL THE CIRCUMSTANCES, FORECLOSED A REASONED
CHOICE BY HIM AT THE TIME HE ENTERED HIS PLEA OF GUILTY."  ID., AT
568. 

TATEO WAS THEREUPON RE-INDICTED BY THE GOVERNMENT AND BROUGHT BEFORE
JUDGE TYLER FOR RETRIAL.  JUDGE TYLER SUSTAINED DEFENSE MOTIONS TO
DISMISS THE INDICTMENT AND ORDERED TATEO DISCHARGED FROM PRISON JUST
ONE MONTH SHORT OF SEVEN YEARS AFTER THE ORIGINAL SENTENCE. 

JUDGE TYLER FOUND THAT TATEO "WAS COERCED FROM AVAILING HIMSELF OF
HIS FIFTH AMENDMENT RIGHT TO GO TO THE ORIGINAL JURY FOR ITS VERDICT OF
GUILT OR INNOCENCE."  216 F. SUPP., AT 853.  APPLYING DOWNUM, JUDGE
TYLER HELD THAT "SINCE NEITHER CONSTITUTIONALLY SOUND CONSENT NOR AN
'EXCEPTIONAL CIRCUMSTANCE' UNDERPINNED THE TERMINATION HERE, A SECOND
TRIAL IS CONSTITUTIONALLY IMPERMISSIBLE."  ID., AT 852. 

THE GOVERNMENT DOES NOT, AND INDEED CANNOT, CHALLENGE JUDGE
WEINFELD'S AND JUDGE TYLER'S CONCLUSION THAT TATEO'S GUILTY PLEA WAS
COERCED BY THE TRIAL JUDGE.  NOR CAN IT BE CONTENDED THAT THE INJURY TO
TATEO WAS LESS SUBSTANTIAL THAN THE INJURY TO DOWNUM.  EACH WAS
DEPRIVED OF HIS "VALUED RIGHT TO HAVE HIS TRIAL COMPLETED BY A
PARTICULAR TRIBUNAL," WADE V. HUNTER, 336 U.S. 684, 689:  DOWNUM BY
REASON OF PROSECUTORIAL OVERSIGHT OR NEGLECT; TATEO BY REASON OF THE
TRIAL JUDGE'S THREAT TO IMPOSE A SENTENCE THAT WOULD MAKE HIM "STAY IN
JAIL FOR THE REST OF HIS LIFE."  IF ANYTHING, TATEO'S DEPRIVATION IS
MORE SERIOUS.  THE PURPOSE OF THE JUDICIAL COERCION IN HIS CASE WAS TO
DENY HIM THE RIGHT TO HAVE THE IMPANELED JURY DECIDE HIS FATE, WHEREAS
THIS WAS MERELY THE EFFECT OF THE PROSECUTORIAL NEGLIGENCE IN DOWNUM. 
MOREOVER, DOWNUM WAS NOT SUBJECTED TO THE TAKING OF EVIDENCE, WHEREAS
TATEO'S TRIAL HAD BEEN IN PROGRESS FOR FOUR DAYS BEFORE ITS ABORTIVE
ENDING. 

THE REASONS ADVANCED BY THE COURT TO SUPPORT ITS HOLDING ARE SIMILAR
TO THE ARGUMENTS PRESENTED BY THE GOVERNMENT AND, IN EFFECT, REJECTED
BY THE COURT IN DOWNUM.  THE COURT SUGGESTS, AS THE GOVERNMENT
UNSUCCESSFULLY ARGUED IN DOWNUM, THAT IF SUCH DOUBLE JEOPARDY PLEAS ARE
SUSTAINED THEN, LOGICALLY, REPROSECUTION WOULD HAVE TO BE BARRED IN ANY
CASE WHERE ERROR IS COMMITTED AT THE TRIAL.  UNDER THE DECISIONS OF
THIS COURT, HOWEVER, THIS IS A NON SEQUITUR.  IN THIS COUNTRY, CONTRARY
TO ENGLISH PRACTICE, A DEFENDANT MAY BE RETRIED AFTER REVERSAL BECAUSE
OF ERRORS AT THE TRIAL - INCLUDING ERRORS IN INSTRUCTIONS, IN RULINGS
ON THE EVIDENCE, IN ADMITTING CONFESSIONS, OR IN PERMITTING PREJUDICIAL
COMMENTS OR CONDUCT BY THE PROSECUTOR.  (FN3)  BUT, IN SUCH INSTANCES,
THE REALITIES ARE THAT, NOTWITHSTANDING THE ERRORS, THE DEFENDANT HAS
HAD A JURY TRIAL, ALBEIT NOT THE ERROR-FREE JURY TRIAL TO WHICH BY LAW
HE IS ENTITLED.  TATEO, HOWEVER, WAS DEPRIVED OF HIS VALUED RIGHT TO
HAVE THE ORIGINAL JURY CONSIDER HIS CASE AT ALL.  WADE V. HUNTER,
SUPRA.  ANY EXPERIENCED TRIAL LAWYER AWARE OF THE REALITIES OF JURY
TRIALS WILL RECOGNIZE THE DIFFERENCE BETWEEN THE TWO CASES.  MANY
JURIES ACQUIT DEFENDANTS AFTER TRIALS IN WHICH REVERSIBLE ERROR HAS
BEEN COMMITTED, AND MANY EXPERIENCED TRIAL LAWYERS WILL FOREGO A MOTION
FOR A MISTRIAL IN FAVOR OF HAVING HIS CASE DECIDED BY THE JURY. 

THE COURT SAYS FURTHER THAT "IF TATEO HAD REQUESTED A MISTRIAL ON THE
BASIS OF THE JUDGE'S COMMENTS, THERE WOULD BE NO DOUBT THAT IF HE HAD
BEEN SUCCESSFUL, THE GOVERNMENT WOULD NOT HAVE BEEN BARRED FROM
RETRYING HIM."  ANTE, AT 467.  THIS COMPLETELY OVERLOOKS JUDGE
WEINFELD'S UNCHALLENGED FINDING THAT TATEO WAS SO "ENVELOPED BY THE
COERCIVE FORCE" OF THE TRIAL JUDGE'S THREAT THAT HE HAD NO CHOICE BUT
TO PLEAD GUILTY.  214 F. SUPP., AT 568.  TO HYPOTHESIZE THE RESULTS OF
A DEFENSE REQUEST FOR A MISTRIAL UNDER THESE CIRCUMSTANCES OBSCURES THE
ISSUE.  HERE IT WAS THE TRIAL JUDGE, NOT THE DEFENDANT, WHO TOOK THE
CASE AWAY FROM THE JURY BY COERCING THE GUILTY PLEA. 

THE COURT ALSO INTIMATES THAT IF TATEO'S PLEA OF DOUBLE JEOPARDY IS
ACCEPTED THEN, LOGICALLY, IT WILL BE NECESSARY TO BAR REPROSECUTIONS
UNDER THE DOUBLE JEOPARDY CLAUSE OF PERSONS WHOSE GUILTY PLEAS, MADE
BEFORE THE JURY IS SWORN, ARE ULTIMATELY FOUND TO BE COERCED.  BUT
AGAIN, UNDER THIS COURT'S DECISIONS, THIS DOES NOT FOLLOW.  BY SETTLED
INTERPRETATION THE PROTECTION OF THE DOUBLE JEOPARDY CLAUSE DOES NOT
ATTACH BEFORE A JURY IS IMPANELED AND SWORN OR, IN A NONJURY TRIAL,
BEFORE THE COURT HAS BEGUN TO HEAR EVIDENCE.  (FN4)  THUS, THE
APPLICATION OF THE DOUBLE JEOPARDY GUARANTEE TO TATEO'S CASE, WHERE THE
PLEA WAS COERCED AFTER FOUR DAYS OF TRIAL, WILL IN NO WAY IMPAIR THE
SETTLED INTERPRETATION. 

IT IS ALSO SUGGESTED THAT TATEO COULD HAVE PROCEEDED TO VERDICT AND
APPEALED THE SENTENCE.  THE REPLY TO THIS BY HIS COUNSEL IN THIS COURT
SEEMS TO ME UNANSWERABLE:  "BUT IT WOULD BE AN AUDACIOUS TRIAL LAWYER
INDEED WHO WOULD ADVISE A CLIENT IN A FEDERAL COURT TO RISK A LIFE IN
PRISON WITHOUT HOPE OF PAROLE ON THE BASIS OF AN APPELLATE REVIEW OF
HIS SENTENCE, FOR THERE IS NO POWER TO REVIEW A SENTENCE WITHIN THE
STATUTORY MAXIMUM EITHER IN THE SUPREME COURT (GORE V. UNITED STATES,
357 U.S. 386, 393) OR IN THE COURT OF APPEALS (PEPENDREA V. UNITED
STATES, 275 F.2D 325, 329 (C.A. 9))."   (FN5) 

THE COURT'S FINAL POINT IS THAT ITS DECISION IS NECESSARY TO PROTECT
"THE SOCIETAL INTEREST IN PUNISHING ONE WHOSE GUILT IS CLEAR" - AN
INTEREST WHICH THE COURT HERE PREFERS TO THE RIGHT OF AN ACCUSED NOT TO
BE SUBJECTED TO DOUBLE JEOPARDY.  ANTE, AT 466.  WITH ALL DEFERENCE, I
SUGGEST THAT THE CONSTITUTION HAS RESOLVED THIS QUESTION OF COMPETING
INTERESTS OF THE GOVERNMENT AND THE INDIVIDUAL IN FAVOR OF PROTECTING
THE INDIVIDUAL FROM THE HARASSMENT AND DANGER OF REPROSECUTION.  I
AGREE WITH MY BROTHER DOUGLAS DISSENTING IN GORI V. UNITED STATES, 367
U.S., AT 373 THAT:  "THE QUESTION IS NOT  ...  WHETHER A DEFENDANT IS
'TO RECEIVE ABSOLUTION FOR HIS CRIME'  ...  .  THE POLICY OF THE BILL
OF RIGHTS IS TO MAKE RARE INDEED THE OCCASIONS WHEN THE CITIZEN CAN FOR
THE SAME OFFENSE BE REQUIRED TO RUN THE GANTLET TWICE.  THE RISK OF
JUDICIAL ARBITRARINESS RESTS WHERE, IN MY VIEW, THE CONSTITUTION PUTS
IT - ON THE GOVERNMENT."  AS IN DOWNUM I WOULD "RESOLVE ANY DOUBT 'IN
FAVOR OF THE LIBERTY OF THE CITIZEN.'" 

FOR THESE REASONS, I DISSENT. 

FN1  IN GORI V. UNITED STATES, 367 U.S. 364, THE COURT EXPRESSLY
REFUSED TO DECIDE WHETHER REPROSECUTION WOULD BE PERMITTED IN
SITUATIONS "IN WHICH THE DISCRETION OF THE TRIAL JUDGE MAY BE ABUSED
...  OR IN WHICH A JUDGE EXERCISES HIS AUTHORITY TO HELP THE
PROSECUTION  ...  ."  ID., AT 369.  HERE, THE COURT HOLDS, IN EFFECT,
THAT REPROSECUTION IS PERMISSIBLE IN THOSE SITUATIONS. 

FN2  SEE NOTE, DOUBLE JEOPARDY:  THE REPROSECUTION PROBLEM, 77 HARV.
L. REV. 1272, 1278-1279 (1964). 

FN3  UNITED STATES V. BALL, 163 U.S. 662; NOTE, 77 HARV. L. REV., AT
1283. 

FN4  E.G., DOWNUM V. UNITED STATES, 372 U.S. 734; CORNERO V. UNITED
STATES, 48 F.2D 69; COMPARE, E.G., BASSING V. CADY, 208 U.S. 386;
UNITED STATES V. DICKERSON, 106 U.S. APP. D.C. 221, 271 F.2D 487. 

FN5  WHETHER COUNSEL IS CORRECT IN THIS CONCLUSION, COMPARE UNITED
STATES V. WILEY, 278 F.2D 500; NOTE, 109 U. OF PA. L. REV. 422 (1961),
IS BESIDE THE POINT; THE DILEMMA IS REAL UNDER THE AUTHORITIES. 
..END :

















ARO MANUFACTURING CO., INC., V. CONVERTIBLE TOP REPLACEMENT CO., INC.
377 U.S. 476 


NO. 75.  ARGUED FEBRUARY 17, 1964.  - DECIDED JUNE 8, 1964.  - 312 F.2D
52, REVERSED IN PART, AFFIRMED IN PART, AND REMANDED. 


RESPONDENT WAS THE ASSIGNEE OF CERTAIN TERRITORIAL RIGHTS IN A
COMBINATION PATENT FOR A TOP-STRUCTURE FOR CONVERTIBLE AUTOMOBILES. 
THE PATENT COVERED ONLY THE COMBINATION OF SEVERAL UNPATENTED
COMPONENTS AND MADE NO CLAIM TO INVENTION BASED ON THE FABRIC USED IN
THE TOP-STRUCTURE.  TOP-STRUCTURES USING THE PATENTED COMBINATION WERE
INCLUDED IN 1952-1954 CARS MADE BY GENERAL MOTORS CORP., PURSUANT TO A
PATENT LICENSE, AND BY FORD MOTOR CO., WHICH HAD NO LICENSE DURING THAT
PERIOD.   RESPONDENT FILED AN INFRINGEMENT SUIT AGAINST PETITIONERS,
WHO, WITHOUT A LICENSE, MADE AND SOLD REPLACEMENT FABRICS TO FIT CARS
USING THE PATENTED TOP-STRUCTURES.  THE PATENT OWNER (RESPONDENT'S
ASSIGNOR) NOTIFIED PETITIONERS ON JANUARY 2, 1954, THAT PETITIONERS'
SALE OF FABRICS TO FIT FORD TOPS WOULD BE CONTRIBUTORY INFRINGEMENT. 
ON JULY 21, 1955, FORD PAID THE PATENT OWNER $73,000, AND IT WAS AGREED
THAT FORD, ITS DEALERS, CUSTOMERS AND USERS, WERE RELEASED FROM ALL
CLAIMS OF INFRINGEMENT OF THE PATENT, OTHER THAN WITH RESPECT TO
"REPLACEMENT TOP FABRICS."  THE PATENT OWNER RESERVED THE RIGHT TO
LICENSE THE MANUFACTURE, USE AND SALE OF SUCH REPLACEMENT FABRICS UNDER
THE PATENT.  RESPONDENT'S CLAIM OF CONTRIBUTORY INFRINGEMENT WAS UPHELD
IN THE DISTRICT COURT AND THE COURT OF APPEALS.  THAT HOLDING WAS
REVERSED HERE (365 U.S. 336) ON THE GROUND THAT THE FABRIC REPLACEMENT
WAS PERMISSIBLE "REPAIR" AND NOT INFRINGING "RECONSTRUCTION," SO THAT
THERE WAS NO DIRECT INFRINGEMENT BY THE CAR OWNER TO WHICH PETITIONERS
COULD CONTRIBUTE.  ON REMAND, THE DISTRICT COURT DISMISSED THE
COMPLAINT AS TO BOTH GENERAL MOTORS AND FORD CARS.  THE COURT OF
APPEALS REINSTATED THE JUDGMENT FOR RESPONDENT WITH RESPECT TO FORD
CARS, HOLDING THAT, SINCE FORD HAD NOT BEEN LICENSED TO PRODUCE THE TOP
STRUCTURES ON THOSE CARS, PETITIONERS' SALE OF REPLACEMENT FABRICS FOR
THEM CONSTITUTED CONTRIBUTORY INFRINGEMENT EVEN THOUGH THE REPLACEMENT
WAS MERELY "REPAIR."  THE COURT OF APPEALS THUS CONCLUDED THAT ITS
"PREVIOUS DECISION IN THIS CASE WAS NOT REVERSED INSOFAR AS UNLICENSED
FORD CARS ARE CONCERNED."  HELD: 

1.  THIS COURT'S PREVIOUS DECISION DID NOT REVERSE THE COURT OF
APPEALS' HOLDING AS IT APPLIED TO FORD CARS.  P. 480. 

2.  PERSONS WHO PURCHASED CARS FROM FORD, WHICH INFRINGED THE PATENT
BY MANUFACTURING AND SELLING THEM WITH THE TOP-STRUCTURES, LIKEWISE
INFRINGED BY USING OR REPAIRING THE TOP-STRUCTURES; AND THE SUPPLIER OF
REPLACEMENT FABRICS FOR USE IN SUCH INFRINGING REPAIR WAS A
CONTRIBUTORY INFRINGER UNDER SEC. 271(C) OF THE PATENT CODE.  PP. 482
488. 

3.  A MAJORITY OF THE COURT IS OF THE VIEW THAT SEC. 271(C) REQUIRES
KNOWLEDGE BY THE ALLEGED CONTRIBUTORY INFRINGER, NOT MERELY THAT THE
COMPONENT SOLD BY HIM WAS ESPECIALLY DESIGNED FOR USE IN A CERTAIN
MACHINE OR COMBINATION, BUT ALSO THAT THE COMBINATION FOR WHICH THE
COMPONENT WAS DESIGNED WAS BOTH PATENTED AND INFRINGING.  PP. 488-493. 

(A)  THIS KNOWLEDGE REQUIREMENT AFFORDS PETITIONERS NO DEFENSE WITH
RESPECT TO REPLACEMENT-FABRIC SALES AFTER JANUARY 2, 1954, SINCE THEY
THEN HAD BEEN NOTIFIED OF FORD'S INFRINGEMENT.  PP. 489-491. 

(B)  PETITIONERS ARE NOT LIABLE FOR CONTRIBUTORY INFRINGEMENT WITH
RESPECT TO SALES BEFORE THAT DATE, ABSENT A SHOWING ON REMAND OF THEIR
PREVIOUS KNOWLEDGE OF FORD'S INFRINGEMENT.  P. 491. 

4.  THE PATENT OWNER'S ATTEMPT, IN THE AGREEMENT WITH FORD, TO
RESERVE THE RIGHT TO LICENSE FUTURE REPLACEMENT SALES WAS INVALID,
SINCE HE CANNOT IN GRANTING THE RIGHT TO USE PATENTED ARTICLES IMPOSE
CONDITIONS AS TO UNPATENTED REPLACEMENT PARTS TO BE USED WITH THOSE
ARTICLES.  AFTER JULY 21, 1955, FORD CAR OWNERS HAD AUTHORITY TO USE
AND REPAIR THE PATENTED TOP-STRUCTURES; HENCE THEY WERE NO LONGER
DIRECT INFRINGERS, AND HENCE PETITIONERS AS SELLERS OF REPLACEMENT
FABRICS FOR SUCH USE AND REPAIR WERE NOT CONTRIBUTORY INFRINGERS.  ARO
MFG. CO. V. CONVERTIBLE TOP REPLACEMENT CO., 365 U.S. 336, FOLLOWED. 
PP. 496-500. 

5.  THE AGREEMENT WITH FORD DID NOT ELIMINATE PETITIONERS' LIABILITY
FOR SALES PRIOR TO JULY 21, 1955, FOR, ALTHOUGH A CONTRIBUTORY
INFRINGER IS A SPECIES OF JOINT-TORTFEASOR, THE COMMON-LAW RULE BY
WHICH A RELEASE OF ONE JOINT-TORTFEASOR NECESSARILY RELEASED ANOTHER IS
NOT APPLIED TO CONTRIBUTORY INFRINGEMENT.  PP. 500-502. 

6.  FOR THE GUIDANCE OF THE DISTRICT COURT, FOUR JUSTICES EXPRESS THE
FOLLOWING VIEWS TO THE EFFECT THAT THE AGREEMENT OF JULY 21, 1955,
LIMITS THE DAMAGES THAT RESPONDENT MAY RECOVER FOR THE PRE-AGREEMENT
INFRINGEMENT: 

(A)  IN CONTRIBUTORY-INFRINGEMENT CASES AS IN OTHER INSTANCES OF
JOINT-TORTFEASORS' LIABILITY PAYMENT BY ONE JOINT-TORTFEASOR DIMINISHES
THE AMOUNT THAT MAY BE RECOVERED FROM ANOTHER.  P. 503. 

(B)  UNDER 35 U.S.C. SEC. 284, ONLY DAMAGES, OR LOSS TO THE PATENT
OWNER, ARE RECOVERABLE FOR INFRINGEMENT, AND NOT THE INFRINGER'S
PROFITS.  PP. 503-507. 

(C)  RESPONDENT'S DAMAGES SHOULD NOT BE MEASURED BY A ROYALTY ON
PETITIONERS' SALES OF REPLACEMENT FABRICS, SINCE RESPONDENT COULD NEVER
HAVE LICENSED THOSE SALES, WHICH INVOLVED UNPATENTED MATERIALS TO BE
USED IN THE MERE REPAIR OF PATENTED ARTICLES.  PP. 507-509. 

(D)  IF THE PAYMENT BY FORD TO THE PATENT OWNER WAS THE EQUIVALENT OF
THE ROYALTIES THE PATENT OWNER WOULD HAVE RECEIVED BY LICENSING FORD IN
THE FIRST INSTANCE, PETITIONERS WOULD BE LIABLE ONLY FOR NOMINAL
DAMAGES.  PP. 512-513. 

ARO MANUFACTURING CO., INC., ET AL. V. CONVERTIBLE TOP REPLACEMENT CO.,
INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT CONVERTIBLE TOP REPLACEMENT CO., INC., (CTR) ACQUIRED BY
ASSIGNMENT FROM THE AUTOMOBILE BODY RESEARCH CORPORATION (AB) ALL
RIGHTS FOR THE TERRITORY OF MASSACHUSETTS IN UNITED STATES PATENT NO.
2,569,724, KNOWN AS THE MACKIE-DULUK PATENT.  THIS IS A COMBINATION
PATENT COVERING A TOP-STRUCTURE FOR AUTOMOBILE "CONVERTIBLES." 
STRUCTURES EMBODYING THE PATENTED COMBINATION WERE INCLUDED AS ORIGINAL
EQUIPMENT IN 1952-1954 MODELS OF CONVERTIBLES MANUFACTURED BY THE
GENERAL MOTORS CORPORATION AND THE FORD MOTOR COMPANY.  THEY WERE
INCLUDED IN THE GENERAL MOTORS CARS BY AUTHORITY OF A LICENSE GRANTED
TO GENERAL MOTORS BY AB; FORD, HOWEVER, HAD NO LICENSE DURING THE 1952
1954 PERIOD, AND NO AUTHORITY WHATEVER UNDER THE PATENT UNTIL JULY 21,
1955, WHEN IT ENTERED INTO AN AGREEMENT, DISCUSSED LATER, WITH AB;
FORD'S MANUFACTURE AND SALE OF THE AUTOMOBILES IN QUESTION THEREFORE
INFRINGED THE PATENT.  PETITIONER ARO MANUFACTURING CO., INC. (ARO),
WHICH IS NOT LICENSED UNDER THE PATENT, PRODUCES FABRIC COMPONENTS
DESIGNED AS REPLACEMENTS FOR WORN-OUT FABRIC PORTIONS OF CONVERTIBLE
TOPS; UNLIKE THE OTHER ELEMENTS OF THE TOP-STRUCTURE, WHICH ORDINARILY
ARE USABLE FOR THE LIFE OF THE CAR, THE FABRIC PORTION NORMALLY WEARS
OUT AND REQUIRES REPLACEMENT AFTER ABOUT THREE YEARS OF USE.  ARO'S
FABRICS ARE SPECIALLY TAILORED FOR INSTALLATION IN PARTICULAR MODELS OF
CONVERTIBLES, AND THESE HAVE INCLUDED THE 1952-1954 GENERAL MOTORS AND
FORD MODELS EQUIPPED WITH THE MACKIE-DULUK TOP-STRUCTURES. 

CTR BROUGHT THIS ACTION AGAINST ARO IN 1956 TO ENJOIN THE ALLEGED
INFRINGEMENT AND CONTRIBUTORY INFRINGEMENT, AND TO OBTAIN AN
ACCOUNTING, WITH RESPECT TO REPLACEMENT FABRICS MADE AND SOLD BY ARO
FOR USE IN BOTH THE GENERAL MOTORS AND THE FORD CARS EMBODYING THE
PATENTED STRUCTURES.  THE INTERLOCUTORY JUDGMENT ENTERED FOR CTR BY THE
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, 119 U.S.P.Q. 122, AND
AFFIRMED BY THE COURT OF APPEALS FOR THE FIRST CIRCUIT, 270 F.2D 200,
WAS REVERSED HERE.  ARO MFG. CO. V. CONVERTIBLE TOP REPLACEMENT CO.,
365 U.S. 336 ("ARO I"), PETITION FOR REHEARING OR ALTERNATIVE MOTION
FOR AMENDMENT OR CLARIFICATION DENIED, 365 U.S. 890.  OUR DECISION
DEALT, HOWEVER, ONLY WITH THE GENERAL MOTORS AND NOT WITH THE FORD
CARS.  LIKE THE COURT OF APPEALS, WE TREATED CTR'S RIGHT TO RELIEF AS
DEPENDING WHOLLY UPON THE QUESTION WHETHER REPLACEMENT OF THE FABRIC
PORTIONS OF THE CONVERTIBLE TOPS CONSTITUTED INFRINGING
"RECONSTRUCTION" OR PERMISSIBLE "REPAIR" OF THE PATENTED COMBINATION. 
THE LOWER COURTS HAD HELD IT TO CONSTITUTE "RECONSTRUCTION," MAKING THE
CAR OWNER FOR WHOM IT WAS PERFORMED A DIRECT INFRINGER AND ARO, WHICH
MADE AND SOLD THE REPLACEMENT FABRIC, A CONTRIBUTORY INFRINGER; WE
DISAGREED AND HELD THAT IT WAS MERELY "REPAIR."  THE RECONSTRUCTION
REPAIR DISTINCTION IS DECISIVE, HOWEVER, ONLY WHEN THE REPLACEMENT IS
MADE IN A STRUCTURE WHOSE ORIGINAL MANUFACTURE AND SALE HAVE BEEN
LICENSED BY THE PATENTEE, AS WAS TRUE ONLY OF THE GENERAL MOTORS CARS;
WHEN THE STRUCTURE IS UNLICENSED, AS WAS TRUE OF THE FORD CARS, THE
TRADITIONAL RULE IS THAT EVEN REPAIR CONSTITUTES INFRINGEMENT.  THUS,
THE DISTRICT COURT HAD BASED ITS RULING FOR CTR WITH RESPECT TO THE
FORD CARS ON THE ALTERNATIVE GROUND THAT, EVEN IF REPLACEMENT OF THE
FABRIC PORTIONS CONSTITUTED MERELY REPAIR, THE CAR OWNERS WERE STILL
GUILTY OF DIRECT INFRINGEMENT, AND ARO OF CONTRIBUTORY INFRINGEMENT, AS
TO THESE UNLICENSED AND HENCE INFRINGING STRUCTURES.  119 U.S.P.Q. 122,
124.  THIS ASPECT OF THE CASE WAS NOT CONSIDERED OR DECIDED BY OUR
OPINION IN ARO I. 

ON REMAND, HOWEVER, ANOTHER JUDGE IN THE DISTRICT COURT READ OUR
OPINION AS REQUIRING THE DISMISSAL OF CTR'S COMPLAINT AS TO THE FORD AS
WELL AS THE GENERAL MOTORS CARS, AND ENTERED JUDGMENT ACCORDINGLY.  CTR
APPEALED THE DISMISSAL INSOFAR AS IT APPLIED TO THE FORD CARS, AND THE
COURT OF APPEALS REINSTATED THE JUDGMENT IN FAVOR OF CTR TO THAT
EXTENT.  312 F.2D 52.  IN OUR VIEW THE COURT OF APPEALS WAS CORRECT IN
HOLDING THAT ITS "PREVIOUS DECISION IN THIS CASE WAS NOT REVERSED
INSOFAR AS UNLICENSED FORD CARS ARE CONCERNED."  312 F.2D, AT 57. 
(FN1)  HOWEVER, WE GRANTED CERTIORARI, 372 U.S. 958, TO CONSIDER THAT
QUESTION, AND TO CONSIDER ALSO THE ISSUE THAT HAD NOT BEEN DECIDED IN
ARO I:  WHETHER ARO IS LIABLE FOR CONTRIBUTORY INFRINGEMENT, UNDER 35
U.S.C. SEC. 271(C), WITH RESPECT TO ITS MANUFACTURE AND SALE OF
REPLACEMENT FABRICS FOR THE FORD CARS.  (FN2)

                                              I. (FN3) 

CTR CONTENDS, AND THE COURT OF APPEALS HELD, THAT SINCE FORD
INFRINGED THE PATENT BY MAKING AND SELLING THE TOP-STRUCTURES WITHOUT
AUTHORITY FROM THE PATENTEE, (FN4) PERSONS WHO PURCHASED THE
AUTOMOBILES FROM FORD LIKEWISE INFRINGED BY USING AND REPAIRING THE
STRUCTURES; AND HENCE ARO, BY SUPPLYING REPLACEMENT FABRICS SPECIALLY
DESIGNED TO BE UTILIZED IN SUCH INFRINGING REPAIR, WAS GUILTY OF
CONTRIBUTORY INFRINGEMENT UNDER 35 U.S.C. SEC. 271(C).  IN ARO I, 365
U.S., AT 341-342, THE COURT SAID: 

"IT IS ADMITTED THAT PETITIONERS (ARO) KNOW THAT THE PURCHASERS
INTEND TO USE THE FABRIC FOR REPLACEMENT PURPOSES ON AUTOMOBILE
CONVERTIBLE TOPS WHICH ARE COVERED BY THE CLAIMS OF RESPONDENT'S
COMBINATION PATENT, AND SUCH MANUFACTURE AND SALE WITH THAT KNOWLEDGE
MIGHT WELL CONSTITUTE CONTRIBUTORY INFRINGEMENT UNDER SEC 271(C), IF,
BUT ONLY IF, SUCH A REPLACEMENT BY THE PURCHASER HIMSELF WOULD IN
ITSELF CONSTITUTE A DIRECT INFRINGEMENT UNDER SEC. 271(A), FOR IT IS
SETTLED THAT IF THERE IS NO DIRECT INFRINGEMENT OF A PATENT THERE CAN
BE NO CONTRIBUTORY INFRINGEMENT  ...  .  IT IS PLAIN THAT SEC. 271(C) -
A PART OF THE PATENT CODE ENACTED IN 1952 - MADE NO CHANGE IN THE
FUNDAMENTAL PRECEPT THAT THERE CAN BE NO CONTRIBUTORY INFRINGEMENT IN
THE ABSENCE OF A DIRECT INFRINGEMENT.  THAT SECTION DEFINES
CONTRIBUTORY INFRINGEMENT IN TERMS OF DIRECT INFRINGEMENT - NAMELY THE
SALE OF A COMPONENT OF A PATENTED COMBINATION OR MACHINE FOR USE 'IN AN
INFRINGEMENT OF SUCH PATENT.'  AND SEC. 271(A) OF THE NEW PATENT CODE,
WHICH DEFINES 'INFRINGEMENT,' LEFT INTACT THE ENTIRE BODY OF CASE LAW
ON DIRECT INFRINGEMENT.  THE DETERMINATIVE QUESTION, THEREFORE, COMES
DOWN TO WHETHER THE CAR OWNER WOULD INFRINGE THE COMBINATION PATENT BY
REPLACING THE WORN-OUT FABRIC ELEMENT OF THE PATENTED CONVERTIBLE TOP
ON HIS CAR  ...  ." 

SIMILARLY HERE, TO DETERMINE WHETHER ARO COMMITTED CONTRIBUTORY
INFRINGEMENT, WE MUST FIRST DETERMINE WHETHER THE CAR OWNERS, BY
REPLACING THE WORN-OUT FABRIC ELEMENT OF THE PATENTED TOP-STRUCTURES,
COMMITTED DIRECT INFRINGEMENT.  WE THINK IT CLEAR, UNDER SEC. 271(A) OF
THE PATENT CODE AND THE "ENTIRE BODY OF CASE LAW ON DIRECT
INFRINGEMENT" WHICH THAT SECTION "LEFT INTACT," THAT THEY DID. 

OR SELLS ANY PATENTED INVENTION  ...  INFRINGES THE PATENT."  IT IS NOT
CONTROVERTED - NOR COULD IT BE - THAT FORD INFRINGED BY MAKING AND
SELLING CARS EMBODYING THE PATENTED TOP-STRUCTURES WITHOUT ANY
AUTHORITY FROM THE PATENTEE.  IF FORD HAD HAD SUCH AUTHORITY, ITS
PURCHASERS WOULD NOT HAVE INFRINGED BY USING THE AUTOMOBILES, FOR IT IS
FUNDAMENTAL THAT SALE OF A PATENTED ARTICLE BY THE PATENTEE OR UNDER
HIS AUTHORITY CARRIES WITH IT AN "IMPLIED LICENSE TO USE."  ADAMS V.
BURKE, 17 WALL.  453, 456; UNITED STATES V. UNIVIS LENS CO., 316 U.S.
241, 249, 250-251.  BUT WITH FORD LACKING AUTHORITY TO MAKE AND SELL,
IT COULD BY ITS SALE OF THE CARS CONFER ON THE PURCHASERS NO IMPLIED
LICENSE TO USE, AND THEIR USE OF THE PATENTED STRUCTURES WAS THUS
"WITHOUT AUTHORITY" AND INFRINGING UNDER SEC. 271(A).  (FN5)  NOT ONLY
DOES THAT PROVISION EXPLICITLY REGARD AN UNAUTHORIZED USER OF A
PATENTED INVENTION AS AN INFRINGER, BUT IT HAS OFTEN AND CLEARLY BEEN
HELD THAT UNAUTHORIZED USE, WITHOUT MORE, CONSTITUTES INFRINGEMENT. 
BIRDSELL V. SHALIOL, 112 U.S. 485; UNION TOOL CO. V. WILSON, 259 U.S.
107, 114; SEE SANITARY REFRIGERATOR CO. V. WINTERS, 280 U.S. 30, 32-33;
GENERAL TALKING PICTURES CORP. V. WESTERN ELECTRIC CO., 305 U.S. 124,
127. 

IF THE OWNER'S USE INFRINGED, SO ALSO DID HIS REPAIR OF THE TOP
STRUCTURE, AS BY REPLACING THE WORN-OUT FABRIC COMPONENT.  WHERE USE
INFRINGES, REPAIR DOES ALSO, FOR IT PERPETUATES THE INFRINGING USE. 

"NO DOUBT  ...  A PATENTED ARTICLE MAY BE REPAIRED WITHOUT MAKING THE
REPAIRER AN INFRINGER,  ... BUT NOT WHERE IT IS DONE FOR ONE WHO IS.
IT IS ONLY WHERE THE DEVICE IN PATENTED FORM HAS COME LAWFULLY INTO THE
HANDS OF THE PERSON FOR OR BY WHOM IT IS REPAIRED THAT THIS IS THE
CASE.  IN OTHER WORDS, IF ONE WITHOUT RIGHT CONSTRUCTS OR DISPOSES OF
AN INFRINGING MACHINE, IT AFFORDS NO PROTECTION TO ANOTHER TO HAVE
MERELY REPAIRED IT; THE REPAIRER, BY SUPPLYING AN ESSENTIAL PART OF THE
PATENTED COMBINATION, CONTRIBUTING BY SO MUCH TO THE PERPETUATION OF
THE INFRINGEMENT."  UNION SPECIAL MACH. CO. V. MAIMIN, 161 F. 748, 750
(C.C.E.D. PA. 1908), AFF'D, 165 F. 440 (C.A.3D CIR. 1908). 

ACCORD, REMINGTON RAND BUSINESS SERV., INC., V. ACME CARD SYSTEM CO.,
71 F.2D 628, 630 (C.A. 4TH CIR. 1934), CERT. DENIED, 293 U.S. 622; 2
WALKER, PATENTS (DELLER ED. 1937), AT 1487.  CONSEQUENTLY REPLACEMENT
OF WORN-OUT FABRIC COMPONENTS WITH FABRICS SOLD BY ARO, HELD IN ARO I
TO CONSTITUTE "REPAIR" RATHER THAN "RECONSTRUCTION" AND THUS TO BE
PERMISSIBLE IN THE CASE OF LICENSED GENERAL MOTORS CARS, WAS NOT
PERMISSIBLE HERE IN THE CASE OF UNLICENSED FORD CARS.  HERE, AS WAS NOT
THE CASE IN ARO I, THE DIRECT INFRINGEMENT BY THE CAR OWNERS THAT IS
PREREQUISITE TO CONTRIBUTORY INFRINGEMENT BY ARO WAS UNQUESTIONABLY
ESTABLISHED.. 

WE TURN NEXT TO THE QUESTION WHETHER ARO, AS SUPPLIER OF REPLACEMENT
FABRICS FOR USE IN THE INFRINGING REPAIR BY THE FORD CAR OWNERS, WAS A
CONTRIBUTORY INFRINGER UNDER SEC. 271(C) OF THE PATENT CODE.  THAT

"WHOEVER SELLS A COMPONENT OF A PATENTED MACHINE, MANUFACTURE,
COMBINATION OR COMPOSITION, OR A MATERIAL OR APPARATUS FOR USE IN
PRACTICING A PATENTED PROCESS, CONSTITUTING A MATERIAL PART OF THE
INVENTION, KNOWING THE SAME TO BE ESPECIALLY MADE OR ESPECIALLY ADAPTED
FOR USE IN AN INFRINGEMENT OF SUCH PATENT, AND NOT A STAPLE ARTICLE OR
COMMODITY OF COMMERCE SUITABLE FOR SUBSTANTIAL NONINFRINGING USE, SHALL
BE LIABLE AS A CONTRIBUTORY INFRINGER. 

WE THINK ARO WAS INDEED LIABLE UNDER THIS PROVISION. 

SUCH A RESULT WOULD PLAINLY HAVE OBTAINED UNDER THE CONTRIBUTORY
INFRINGEMENT CASE LAW THAT SEC. 271(C) WAS INTENDED TO CODIFY.  (FN6)
INDEED, MOST OF THE LAW WAS ESTABLISHED IN CASES WHERE, AS HERE, SUIT
WAS BROUGHT TO HOLD LIABLE FOR CONTRIBUTORY INFRINGEMENT A SUPPLIER OF
REPLACEMENT PARTS SPECIALLY DESIGNED FOR USE IN THE REPAIR OF
INFRINGING ARTICLES.  IN UNION TOOL CO. V. WILSON, SUPRA, 259 U.S., AT
113-114, THE COURT HELD THAT WHERE USE OF THE PATENTED MACHINES
THEMSELVES WAS NOT AUTHORIZED: 

"THERE WAS, CONSEQUENTLY, NO IMPLIED LICENSE TO USE THE SPARE PARTS
IN THESE MACHINES.  AS SUCH USE, UNLESS LICENSED, CLEARLY CONSTITUTED
AN INFRINGEMENT, THE SALE OF THE SPARE PARTS TO BE SO USED VIOLATED THE
INJUNCTION (ENJOINING INFRINGEMENT)." 

AS EARLY AS 1897, CIRCUIT JUDGE TAFT, AS HE THEN WAS, THOUGHT IT
"WELL SETTLED" THAT: 

"WHERE ONE MAKES AND SELLS ONE ELEMENT OF A COMBINATION COVERED BY A
PATENT WITH THE INTENTION AND FOR THE PURPOSE OF BRINGING ABOUT ITS USE
IN SUCH A COMBINATION HE IS GUILTY OF CONTRIBUTORY INFRINGEMENT AND IS
EQUALLY LIABLE TO THE PATENTEE WITH HIM WHO IN FACT ORGANIZES THE
COMPLETE COMBINATION."  THOMSON-HOUSTON ELEC.  CO. V. OHIO BRASS CO.,
80 F. 712, 721 (C.A. 6TH CIR. 1897). 

WHILE CONCEDING THAT IN THE CASE OF A MACHINE PURCHASED FROM THE
PATENTEE, ONE "MAY KNOWINGLY ASSIST IN ASSEMBLING, REPAIRING, AND
RENEWING A PATENTED COMBINATION BY FURNISHING SOME OF THE NEEDED
PARTS," JUDGE TAFT ADDED: "BUT, WHEN HE DOES SO, HE MUST ASCERTAIN, IF
HE WOULD ESCAPE LIABILITY FOR INFRINGEMENT, THAT THE ONE BUYING AND
USING THEM FOR THIS PURPOSE HAS A LICENSE, EXPRESS OR IMPLIED, TO DO
SO."  ID., AT 723.  SEE ALSO NATIONAL BRAKE & ELEC.  CO. V.
CHRISTENSEN, 38 F.2D 721, 723 (C.A. 7TH CIR. 1930), CERT. DENIED, 282
U.S. 864; REED ROLLER BIT CO. V. HUGHES TOOL CO., 12 F.2D 207, 211
(C.A. 5TH CIR. 1926); SHICKLE, HARRISON & HOWARD IRON CO. V. ST. LOUIS
CAR-COUPLER CO., 77 F. 739, 743 (C.A. 8TH CIR. 1896), CERT. DENIED, 166
U.S. 720.  THESE CASES ARE ALL AUTHORITY FOR THE PROPOSITION THAT "THE
RIGHT OF ONE, OTHER THAN THE PATENTEE, FURNISHING REPAIR PARTS OF A
PATENTED COMBINATION, CAN BE NO GREATER THAN THAT OF THE USER, AND HE
IS BOUND TO SEE THAT NO OTHER USE OF SUCH PARTS IS MADE THAN THAT
AUTHORIZED BY THE USER'S LICENSE."  NATIONAL MALLEABLE CASTING CO. V.
AMERICAN STEEL FOUNDRIES, 182 F. 626, 641 (C.C.D.N.J. 1910). 

IN ENACTING SEC. 271(C), CONGRESS CLEARLY SUCCEEDED IN ITS OBJECTIVE
OF CODIFYING THIS CASE LAW.  THE LANGUAGE OF THE SECTION FITS PERFECTLY
ARO'S ACTIVITY OF SELLING "A COMPONENT OF A PATENTED  ...  COMBINATION
...  , CONSTITUTING A MATERIAL PART OF THE INVENTION,  ...  ESPECIALLY
MADE OR ESPECIALLY ADAPTED FOR USE IN AN INFRINGEMENT OF SUCH PATENT,
AND NOT A STAPLE ARTICLE OR COMMODITY OF COMMERCE SUITABLE FOR
SUBSTANTIAL NONINFRINGING USE."  INDEED, THIS IS THE ALMOST UNIQUE CASE
IN WHICH THE COMPONENT WAS HARDLY SUITABLE FOR ANY NONINFRINGING USE. 
(FN7)  ON THIS BASIS BOTH THE DISTRICT COURT ORIGINALLY, 119 U.S.P.Q.,
AT 124, AND THE COURT OF APPEALS IN THE INSTANT CASE, 312 F.2D, AT 57,
HELD THAT ARO WAS A CONTRIBUTORY INFRINGER WITHIN THE PRECISE LETTER OF
SEC. 271(C).  SEE ALSO ARO I, 365 U.S., AT 341.    HOWEVER, THE
LANGUAGE OF SEC. 271(C) PRESENTS A QUESTION, APPARENTLY NOT NOTICED BY
THE PARTIES OR THE COURTS BELOW, CONCERNING THE ELEMENT OF KNOWLEDGE
THAT MUST BE BROUGHT HOME TO ARO BEFORE LIABILITY CAN BE IMPOSED.  IT
IS ONLY SALE OF A COMPONENT OF A PATENTED COMBINATION "KNOWING THE SAME
TO BE ESPECIALLY MADE OR ESPECIALLY ADAPTED FOR USE IN AN INFRINGEMENT
OF SUCH PATENT" THAT IS CONTRIBUTORY INFRINGEMENT UNDER THE STATUTE. 
WAS ARO "KNOWING" WITHIN THE STATUTORY MEANING BECAUSE - AS IT ADMITS,
AND AS THE LOWER COURTS FOUND - IT KNEW THAT ITS REPLACEMENT FABRICS
WERE ESPECIALLY DESIGNED FOR USE IN THE 1952-1954 FORD CONVERTIBLE TOPS
AND WERE NOT SUITABLE FOR OTHER USE?  OR DOES THE STATUTE REQUIRE A
FURTHER SHOWING THAT ARO KNEW THAT THE TOPS WERE PATENTED, AND KNEW
ALSO THAT FORD WAS NOT LICENSED UNDER THE PATENT SO THAT ANY FABRIC
REPLACEMENT BY A FORD CAR OWNER CONSTITUTED INFRINGEMENT? 

ON THIS QUESTION A MAJORITY OF THE COURT IS OF THE VIEW THAT SEC.
271(C) DOES REQUIRE A SHOWING THAT THE ALLEGED CONTRIBUTORY INFRINGER
KNEW THAT THE COMBINATION FOR WHICH HIS COMPONENT WAS ESPECIALLY
DESIGNED WAS BOTH PATENTED AND INFRINGING.  (FN8)  WITH RESPECT TO MANY
OF THE REPLACEMENT-FABRIC SALES INVOLVED IN THIS CASE, ARO CLEARLY HAD
SUCH KNOWLEDGE.  FOR BY LETTER DATED JANUARY 2, 1954, AB INFORMED ARO
THAT IT HELD THE MACKIE-DULUK PATENT; THAT IT HAD GRANTED A LICENSE
UNDER THE PATENT TO GENERAL MOTORS BUT TO NO ONE ELSE; AND THAT "IT IS
OBVIOUS, FROM THE FOREGOING AND FROM AN INSPECTION OF THE CONVERTIBLE
AUTOMOBILE SOLD BY THE FORD MOTOR COMPANY, THAT ANYONE SELLING READY
MADE REPLACEMENT FABRICS FOR THESE AUTOMOBILES WOULD BE GUILTY OF
CONTRIBUTORY INFRINGEMENT OF SAID PATENTS."  THUS THE COURT'S
INTERPRETATION OF THE KNOWLEDGE REQUIREMENT AFFORDS ARO NO DEFENSE WITH
RESPECT TO REPLACEMENT-FABRIC SALES MADE AFTER JANUARY 2, 1954.  IT
WOULD APPEAR THAT THE OVERWHELMING MAJORITY OF THE SALES WERE IN FACT
MADE AFTER THAT DATE, SINCE THE OLDEST OF THE CARS WERE 1952 MODELS AND
SINCE THE AVERAGE LIFE OF A FABRIC TOP IS SAID TO BE THREE YEARS.  WITH
RESPECT TO ANY SALES THAT WERE MADE BEFORE THAT DATE, HOWEVER, ARO
CANNOT BE HELD LIABLE IN THE ABSENCE OF A SHOWING THAT AT THAT TIME IT
HAD ALREADY ACQUIRED THE REQUISITE KNOWLEDGE THAT THE FORD CAR TOPS
WERE PATENTED AND INFRINGING.  WHEN THE CASE IS REMANDED, A FINDING OF
FACT MUST BE MADE ON THIS QUESTION BY THE DISTRICT COURT, AND, UNLESS
ARO IS FOUND TO HAVE HAD SUCH PRIOR KNOWLEDGE, THE JUDGMENT IMPOSING
LIABILITY MUST BE VACATED AS TO ANY SALES MADE BEFORE JANUARY 2, 1954. 
AS TO SUBSEQUENT SALES, HOWEVER, WE HOLD, IN AGREEMENT WITH THE LOWER
COURTS, THAT ARO IS LIABLE FOR CONTRIBUTORY INFRINGEMENT WITHIN THE
TERMS OF SEC. 271(C). 

IN SEEKING TO AVOID SUCH LIABILITY, ARO RELIES ON THE MERCOID CASES. 
MERCOID CORP. V. MID-CONTINENT INVESTMENT CO., 320 U.S. 661; MERCOID
CORP. V. MINNEAPOLIS-HONEYWELL REGULATOR CO., 320 U.S. 680.  SINCE
THOSE CASES INVOLVED ESSENTIALLY AN APPLICATION OF THE DOCTRINE OF
PATENT MISUSE, WHICH IS NOT AN ISSUE IN THIS CASE, (FN9) THEY ARE NOT
SQUARELY APPLICABLE TO THE CONTRIBUTORY INFRINGEMENT QUESTION HERE.  ON
THE OTHER HAND, THEY ARE HARDLY IRRELEVANT.  THE COURT IN MERCOID SAID,
AMONG OTHER THINGS, THAT THE PRINCIPLE THAT "HE WHO SELLS AN UNPATENTED
PART OF A COMBINATION PATENT FOR USE IN THE ASSEMBLED MACHINE MAY BE
GUILTY OF CONTRIBUTORY INFRINGEMENT" COULD NO LONGER PREVAIL "AGAINST
THE DEFENSE THAT A COMBINATION PATENT IS BEING USED TO PROTECT AN
UNPATENTED PART FROM COMPETITION."  320 U.S., AT 668.  AS THE COURT
RECOGNIZED, ITS DEFINITION OF MISUSE WAS SUCH AS "TO LIMIT
SUBSTANTIALLY THE DOCTRINE OF CONTRIBUTORY INFRINGEMENT" AND TO RAISE A
QUESTION AS TO "WHAT RESIDUUM MAY BE LEFT."  320 U.S., AT 669.  SEE
REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE
ANTITRUST LAWS (1955), AT 252.  THE ANSWER TO ARO'S ARGUMENT IS THAT
CONGRESS ENACTED SEC. 271 FOR THE EXPRESS PURPOSE OF REINSTATING THE
DOCTRINE OF CONTRIBUTORY INFRINGEMENT AS IT HAD BEEN DEVELOPED BY
DECISIONS PRIOR TO MERCOID, AND OF OVERRULING ANY BLANKET INVALIDATION
OF THE DOCTRINE THAT COULD BE FOUND IN THE MERCOID OPINIONS.  SEE,
E.G., 35 U.S.C. SECS. 271(C), (D); HEARINGS, SUPRA, N. 6, AT 159, 161
162; AND THE ARO I OPINIONS OF MR. JUSTICE BLACK, 365 U.S., AT 348-349
AND NN. 3-4; MR. JUSTICE HARLAN, ID., AT 378, N. 6; AND MR. JUSTICE
BRENNAN, ID., AT 365-367.  HENCE, WHERE ARO'S SALE OF REPLACEMENT
FABRICS FOR UNLICENSED FORD CARS FALLS SQUARELY WITHIN SEC. 271(C), AND
WHERE ARO HAS NOT PROPERLY INVOKED THE MISUSE DOCTRINE AS TO ANY OTHER
CONDUCT BY CTR OR AB, MERCOID CANNOT SUCCESSFULLY BE EMPLOYED TO SHIELD
ARO FROM LIABILITY FOR CONTRIBUTORY INFRINGEMENT.  (FN10) 

THUS WE HOLD THAT, SUBJECT TO THE RESERVATION EXPRESSED AT PP. 488
491, SUPRA, WITH RESPECT TO SALES MADE BEFORE JANUARY 2, 1954, AND
SUBJECT TO THE FURTHER RESERVATIONS SET FORTH IN SUCCEEDING PARTS OF
THIS OPINION, ARO'S SALES OF REPLACEMENT FABRICS FOR USE IN THE FORD
CARS CONSTITUTED CONTRIBUTORY INFRINGEMENT UNDER SEC. 271(C). 

           II.  (FN11) 

ALTHOUGH WE THUS AGREE WITH THE COURT OF APPEALS THAT ARO WAS LIABLE
FOR CONTRIBUTORY INFRINGEMENT WITH RESPECT TO THE FORD CARS, WE FIND
MERIT IN A DEFENSE ASSERTED BY ARO.  IN OUR VIEW THIS DEFENSE NEGATIVES
ARO'S LIABILITY AS TO SOME OF THE REPLACEMENT FABRICS IN QUESTION AND,
AS TO THE OTHERS, REDUCES SUBSTANTIALLY - QUITE POSSIBLY TO A MERE
NOMINAL SUM - THE AMOUNT OF RECOVERY THAT CTR MAY BE AWARDED.  THE
DEFENSE IS BASED ON THE AGREEMENT OF JULY 21, 1955, BETWEEN FORD AND
AB.  SEE NOTE 4, SUPRA.  THIS AGREEMENT AFFECTED ARO'S LIABILITY
DIFFERENTLY, WE THINK, DEPENDING UPON WHETHER THE REPLACEMENT-FABRIC
SALES WERE MADE BEFORE OR AFTER THE AGREEMENT DATE.  WE SHALL FIRST
DISCUSS ITS EFFECT ON LIABILITY FOR THE SUBSEQUENT SALES. 

THE AGREEMENT WAS MADE AT A TIME WHEN, AS CTR STATES IN ITS BRIEF,
"FORD HAD ALREADY COMPLETED ITS MANUFACTURE OF ALL THE CARS HERE
INVOLVED."  UNDER IT, FORD AGREED TO PAY AB $73,000 FOR CERTAIN RIGHTS
UNDER THE PATENT, WHICH WERE DEFINED BY PARAGRAPH 1 OF THE AGREEMENT AS
FOLLOWS: 

"1. AB HEREBY RELEASES FORD, ITS ASSOCIATED COMPANIES  ...  AND ITS
AND THEIR DEALERS, CUSTOMERS AND USERS OF ITS AND THEIR PRODUCTS, OF
ALL CLAIMS THAT AB HAS OR MAY HAVE AGAINST IT OR THEM FOR INFRINGEMENT
OF SAID PATENTS ARISING OUT OF THE MANUFACTURE, USE OR SALE OF DEVICES
DISCLOSED THEREIN AND MANUFACTURED BEFORE DECEMBER 31, 1955, OTHER THAN
THE 'REPLACEMENT TOP FABRICS' LICENSED UNDER PARAGRAPH 3." 

IN PARAGRAPH 3, AB LICENSED FORD TO MAKE AND SELL "REPLACEMENT TOP
FABRICS" FOR THE MACKIE-DULUK TOP-STRUCTURES, RECEIVING IN RETURN A
ROYALTY - SEPARATE FROM THE $73,000 LUMP-SUM PAYMENT - OF 5% OF THE NET
SALES.  AND IN PARAGRAPH 5, AB EXPRESSLY RESERVED THE RIGHT: 

"TO LICENSE UNDER  ...  SAID MACKIE-DULUK PATENT  ...  THE
MANUFACTURE, USE AND SALE OF REPLACEMENT TOP FABRICS OTHER THAN THOSE
SUPPLIED TO, MADE BY OR SOLD BY FORD  ...  TO THE EXTENT THAT AB IS
ENTITLED TO RESERVE SUCH RIGHT UNDER 35 U.S.C.  SEC. 271 (1952)." 

IN A PRETRIAL MEMORANDUM FILED EARLY IN THE LAWSUIT, THE DISTRICT
COURT CONSTRUED THE AGREEMENT IN THE FOLLOWING MANNER, WHICH WE THINK
TO BE A CORRECT INTERPRETATION OF THE PARTIES' INTENTION: 

(1)  WITH RESPECT TO ALL PATENTED TOP-STRUCTURES MANUFACTURED BEFORE
JULY 21, 1955, AND ALL REPLACEMENT FABRICS INSTALLED BEFORE THAT DATE,
IT WAS A "RELEASE" TO THE PARTIES NAMED - THAT IS, FORD AND ITS
CUSTOMERS - OF THE CLAIMS FOR INFRINGEMENT BY MANUFACTURE, SALE, OR USE
OF THE PATENTED COMBINATION; 

(2)  WITH RESPECT TO ANY NEW STRUCTURES MANUFACTURED BETWEEN JULY 21
AND DECEMBER 31, 1955 (IT APPEARS THAT THERE WERE NO SUCH STRUCTURES),
THE AGREEMENT WAS A "FUTURE LICENSE" TO FORD AND ITS CUSTOMERS TO MAKE,
SELL, AND USE THE PATENTED COMBINATION, BUT "EXCEPTING REPLACEMENTS"
UNLESS THESE WERE PROVIDED BY FORD UNDER THE SPECIAL LICENSE GRANTED BY
PARAGRAPH 3; 

(3)  WITH RESPECT TO THE POST-JULY 21 STATUS OF STRUCTURES
MANUFACTURED BEFORE JULY 21, THE AGREEMENT WAS ALSO A "FUTURE LICENSE"
TO FORD AND ITS CUSTOMERS OF THE RIGHTS TO MAKE, SELL, AND USE, BUT
AGAIN, "EXCEPTING REPLACEMENTS" NOT PROVIDED BY FORD; AND 

(4)  THE AGREEMENT "DEMONSTRATED AN INTENTION NOT TO RELEASE" OR
LICENSE ANY PERSONS OTHER THAN FORD OR ITS CUSTOMERS; IN PARTICULAR,
THE PARTIES DID NOT INTEND TO RELEASE OR LICENSE CONTRIBUTORY
INFRINGERS LIKE ARO IN RESPECT OF REPLACEMENT FABRICS SOLD EITHER
BEFORE OR AFTER JULY 21. 

CONSIDERING THE LEGAL EFFECT OF THE AGREEMENT AS SO CONSTRUED, THE
DISTRICT COURT WENT ON TO RULE THAT IF THE FABRIC REPLACEMENT SHOULD BE
HELD TO CONSTITUTE REPAIR RATHER THAN RECONSTRUCTION (AS THIS COURT DID
SUBSEQUENTLY HOLD IN ARO I), THEN: 

(A)  ARO WOULD BE LIABLE FOR CONTRIBUTORY INFRINGEMENT AS TO
REPLACEMENTS MADE BEFORE JULY 21, 1955, SINCE "I DO NOT CONSTRUE THE
AGREEMENT TO RELEASE CONTRIBUTORY INFRINGERS FOR RIGHTS OF ACTION
ALREADY ACCRUED"; 

(B)  HOWEVER, DESPITE THE INTENTION OF THE PARTIES, ARO WOULD NOT BE
LIABLE AS TO REPLACEMENTS MADE AFTER JULY 21, 1955, SINCE "IF
REPLACEMENT IS LEGITIMATE REPAIR, NO AVERAGE OWNER CAN DO-IT-YOURSELF,
AND HE MUST BE FREE TO GO TO PERSONS IN THE POSITION OF DEFENDANTS
WITHOUT APPREHENSION ON THEIR PART." 

THE DISTINCTION BETWEEN PRE-AGREEMENT AND POST-AGREEMENT SALES
SUBSEQUENTLY BECAME IRRELEVANT TO THE DISTRICT COURT'S VIEW OF THE
CASE, WHEN IT HELD AFTER TRIAL THAT REPLACEMENT OF THE FABRICS
CONSTITUTED RECONSTRUCTION RATHER THAN REPAIR; THE COURT'S
INTERLOCUTORY JUDGMENT FOR CTR THUS HELD ARO LIABLE WITH RESPECT TO ALL
THE FORD CARS IN QUESTION.  WHEN THIS COURT IN ARO I REVERSED THE
RULING ON THE RECONSTRUCTION-REPAIR ISSUE, THE ONLY REFERENCE IN THE
OPINIONS TO THE FORD CARS TOOK THE VIEW THAT ARO SHOULD BE HELD LIABLE
ONLY IN RESPECT OF REPLACEMENTS MADE ON THOSE CARS "BEFORE JULY 21,
1955," 365 U.S., AT 368 (CONCURRING OPINION), AND THUS AGREED WITH THE
DISTINCTION ORIGINALLY DRAWN BY THE DISTRICT COURT.  THE PRESENT
OPINION OF THE COURT OF APPEALS, HOWEVER, IN REINSTATING THE FORD CAR
PORTION OF THE INTERLOCUTORY JUDGMENT FOR CTR WITHOUT CONSIDERATION OF
THIS DISTINCTION, APPEARS TO HAVE HELD ARO LIABLE IN RESPECT OF
REPLACEMENT FABRICS SOLD FOR THE 1952-1954 FORD CARS NOT ONLY BEFORE
JULY 21, 1955, BUT ALSO AFTER THAT DATE AND - SO LONG AS THE CARS
REMAIN ON THE ROAD - UP TO THE PRESENT AND INTO THE FUTURE. 

CTR'S ARGUMENT IN SUPPORT OF THIS RESULT EMPHASIZES THAT THE
AGREEMENT IN TERMS RAN IN FAVOR ONLY OF FORD AND FORD'S CUSTOMERS AND
NOT OF THIRD PARTIES LIKE ARO, AND THAT IT EXPRESSLY EXCEPTED
"REPLACEMENT TOP FABRICS" FROM THE SCOPE OF THE RIGHTS IT GRANTED. 
RELIANCE IS ALSO PLACED ON TESTIMONY THAT THE AMOUNT TO BE PAID BY FORD
UNDER THE AGREEMENT WAS SET AS LOW AS $73,000 ONLY BECAUSE OF A CLEAR
UNDERSTANDING BETWEEN THE PARTIES THAT SUCH PAYMENT WOULD NOT AFFECT
AB'S RIGHTS TO RECOVER FROM PERSONS IN THE POSITION OF ARO.  (FN12)
CTR THUS ARGUES: 

"IF THE FORD AGREEMENT HAD NEVER BEEN MADE AT ALL, IT IS CLEAR THAT
IT WOULD HAVE BEEN PROPER TO REQUIRE THAT ARO PAY ROYALTIES, INSOFAR AS
INFRINGING FORD CARS ARE CONCERNED, EVEN UP TO THE PRESENT TIME.  THIS
BEING THE CASE, IT IS CLEAR THAT IT WAS PROPER FOR THE AGREEMENT TO
EXPRESSLY RECOGNIZE AND TO EXPRESSLY EXCLUDE ARO'S LIABILITY FROM ITS
TERMS.  SINCE FORD REFUSED TO PURCHASE ANY RIGHTS FOR ARO, EITHER
BEFORE OR AFTER JULY 21, 1955, ARO IS LIABLE FOR ITS FORD REPAIR
ACTIVITIES BOTH BEFORE AND AFTER THAT DATE." 

INSOFAR AS REPLACEMENT FABRICS SOLD "AFTER THAT DATE" ARE CONCERNED,
WE DO NOT AGREE.  WE THINK THE AGREEMENT'S ATTEMPT TO RESERVE RIGHTS IN
CONNECTION WITH FUTURE SALES OF REPLACEMENT FABRICS WAS INVALID.  BY
THE AGREEMENT AB AUTHORIZED THE FORD CAR OWNERS, IN RETURN FOR A
PAYMENT FROM FORD, TO USE THE PATENTED TOP-STRUCTURES FROM AND AFTER
JULY 21, 1955.  SINCE THEY WERE AUTHORIZED TO USE THE STRUCTURES, THEY
WERE AUTHROIZED TO REPAIR THEM SO AS "TO PRESERVE THEIR FITNESS FOR USE
...  ."  ARO I, 365 U.S., AT 345, QUOTING LEEDS & CATLIN CO. V. VICTOR
TALKING MACHINE CO., 213 U.S. 325, 336.  THE CONTRARY PROVISIONS IN THE
AGREEMENT, PURPORTING TO RESTRICT THE RIGHT OF USE AND REPAIR BY
PROHIBITING FABRIC REPLACEMENT UNLESS DONE WITH FABRICS PURCHASED FROM
FORD OR SOME OTHER LICENSEE, STAND CONDEMNED BY A LONG LINE OF THIS
COURT'S DECISIONS DELIMITING THE SCOPE OF THE PATENT GRANT.  WHEN THE
PATENTEE HAS SOLD THE PATENTED ARTICLE OR AUTHORIZED ITS SALE AND HAS
THUS GRANTED TO THE PURCHASER AN "IMPLIED LICENSE TO USE," IT IS CLEAR
THAT HE CANNOT THEREAFTER RESTRICT THAT USE; "SO FAR AS THE USE OF IT
WAS CONCERNED, THE PATENTEE HAD RECEIVED HIS CONSIDERATION, AND IT WAS
NO LONGER WITHIN THE MONOPOLY OF THE PATENT."  ADAMS V. BURKE, 17
WALL.  453, 456.  IN PARTICULAR, HE CANNOT IMPOSE CONDITIONS CONCERNING
THE UNPATENTED SUPPLIES, ANCILLARY MATERIALS, OR COMPONENTS WITH WHICH
THE USE IS TO BE EFFECTED.  E.G., CARBICE CORP. V. AMERICAN PATENTS
DEVELOPMENT CORP., 283 U.S. 27; MERCOID CORP. V. MID-CONTINENT
INVESTMENT CO., 320 U.S. 661; UNITED STATES V. LOEWS, INC., 371 U.S.
38, 46.  IT FOLLOWS THAT HERE, WHERE THE PATENTEE HAS BY THE FORD
AGREEMENT EXPLICITLY AUTHORIZED THE PURCHASERS TO USE THE ARTICLES, THE
PATENTEE CANNOT THEREAFTER RESTRICT THAT USE BY IMPOSING A CONDITION
THAT REPLACEMENT PARTS MAY BE PURCHASED ONLY FROM A LICENSED SUPPLIER. 
WITH THE RESTRICTION THUS ELIMINATED FROM CONSIDERATION, IT IS CLEAR
THAT ARO CANNOT BE LIABLE FOR CONTRIBUTORY INFRINGEMENT IN CONNECTION
WITH SALES OF REPLACEMENT FABRICS MADE AFTER JULY 21, 1955.  AFTER THAT
DATE THE FORD CAR OWNERS HAD AUTHORITY FROM THE PATENTEE - INDEED, HAD
A "LICENSE" (FN13) - FULLY TO USE AND REPAIR THE PATENTED STRUCTURES. 
HENCE THEY DID NOT COMMIT DIRECT INFRINGEMENT UNDER SEC. 271(A) WHEN
THEY HAD THE FABRICS REPLACED; HENCE ARO, IN SELLING REPLACEMENT
FABRICS FOR THIS PURPOSE, DID NOT COMMIT CONTRIBUTORY INFRINGEMENT
UNDER SEC. 271(C).  THE CASE AS TO THE POST-AGREEMENT SALES IS THUS
SQUARELY RULED BY ARO I. IT WAS HELD THERE, DESPITE AB'S ATTEMPT TO
RESERVE THE RIGHT TO LICENSE SALES OF REPLACEMENT FABRICS, THAT GENERAL
MOTORS CAR OWNERS, WHO WERE AUTHORIZED TO USE THE PATENTED STRUCTURES
BY VIRTUE OF THE LICENSE GRANTED GENERAL MOTORS BY AB, PERFORMED
NOTHING MORE THAN "PERMISSIBLE REPAIR" WHEN THEY REPLACED THE WORN-OUT
FABRICS, AND HENCE THAT THERE WAS NO DIRECT INFRINGEMENT BY THE OWNERS
TO WHICH ARO, BY SELLING THE REPLACEMENT FABRICS, COULD CONTRIBUTE.  IN
OTHER WORDS, SINCE FABRIC REPLACEMENT WAS "REPAIR" RATHER THAN
"RECONSTRUCTION," IT WAS MERELY AN ASPECT OF THE USE OF THE PATENTED
ARTICLE, AND WAS THUS BEYOND THE PATENTEE'S POWER TO CONTROL AFTER THE
USE ITSELF HAD BEEN AUTHORIZED.  SO HERE, THE FORD CAR OWNERS WERE
AUTHORIZED TO USE THE PATENTED STRUCTURES AFTER JULY 21, 1955, BY
VIRTUE OF THE AGREEMENT BETWEEN AB AND FORD.  HENCE THEY WERE LIKEWISE
ENTITLED, DESPITE AB'S ATTEMPT TO RESERVE THIS RIGHT, TO PERFORM THE
"PERMISSIBLE REPAIR" OF REPLACING THE WORN-OUT FABRICS; HENCE, JUST AS
IN ARO I, THE CAR OWNERS BY REPLACING THE FABRICS COMMITTED NO DIRECT
INFRINGEMENT TO WHICH ARO'S SALES COULD CONTRIBUTE.  "IF THE PURCHASER
AND USER COULD NOT BE AMERCED AS AN INFRINGER CERTAINLY ONE WHO SOLD TO
HIM  ...  CANNOT BE AMERCED FOR CONTRIBUTING TO A NON-EXISTENT
INFRINGEMENT."  ARO I, 365 U.S., AT 341. 

CTR WOULD HAVE IT THAT THIS RESULT IS INCONSISTENT WITH BIRDSELL V.
SHALIOL, 112 U.S. 485, AND UNION TOOL CO. V. WILSON, 259 U.S. 107.  IN
OUR VIEW IT IS NOT.  BIRDSELL ALLOWED THE PATENTEE TO HOLD ONE
INFRINGER LIABLE FOR USE OF THE PATENTED MACHINES AFTER OBTAINING A
JUDGMENT AGAINST ANOTHER INFRINGER FOR THE MANUFACTURE AND SALE OF THE
SAME MACHINES; UNION TOOL HELD INFRINGEMENT TO EXIST WHERE THE
DEFENDANT, AFTER BEING HELD LIABLE FOR THE MANUFACTURE AND SALE OF
CERTAIN INFRINGING MACHINES, SOLD SPARE PARTS FOR USE IN THE SAME
MACHINES.  BOTH CASES TURNED UPON THE FACT THAT THE PATENTEE HAD NOT
COLLECTED ON THE PRIOR JUDGMENT AND THUS HAD NOT RECEIVED ANY
COMPENSATION FOR THE INFRINGING USE OR, INDEED, ANY COMPENSATION AT
ALL.  (FN14)  HERE, IN  CONTRAST, THE AMOUNT PAID BY FORD UNDER THE
AGREEMENT WAS EXPRESSLY STATED TO INCLUDE COMPENSATION FOR THE USE OF
THE PATENTED STRUCTURES BY FORD'S PURCHASERS; MOREOVER, THE AGREEMENT
COVERED FUTURE USE AND IN THIS RESPECT OPERATED PRECISELY LIKE A
LICENSE, WITH THE RESULT THAT AFTER THE AGREEMENT DATE THERE WAS SIMPLY
NO INFRINGING USE FOR WHICH THE PATENTEE WAS ENTITLED TO COMPENSATION. 
SEE BIRDSELL V. SHALIOL, SUPRA, 112 U.S., AT 487.  IN SUM AB OBTAINED
ITS REWARD FOR THE USE OF THE PATENTED STRUCTURES UNDER THE TERMS OF
THE AGREEMENT WITH FORD; CTR CANNOT OBTAIN FROM ARO HERE ANOTHER REWARD
FOR THE SAME USE. 

WE THEREFORE HOLD, IN AGREEMENT WITH THE DISTRICT COURT'S ORIGINAL
VIEW, THAT ARO IS NOT LIABLE FOR REPLACEMENT-FABRIC SALES (FN15) MADE
AFTER JULY 21, 1955.  INSOFAR AS THE JUDGMENT OF THE COURT OF APPEALS
IMPOSES LIABILITY FOR SUCH SALES, IT IS REVERSED.  (FN16)

                        III.  (FN17) 

TURNING TO THE QUESTION OF REPLACEMENT-FABRIC SALES MADE BEFORE JULY
21, 1955, WE AGREE WITH THE DISTRICT COURT THAT THE AGREEMENT BETWEEN
AB AND FORD DID NOT NEGATIVE ARO'S LIABILITY FOR THESE SALES.  WITH
RESPECT TO THE POST-AGREEMENT SALES THE AGREEMENT NECESSARILY ABSOLVED
ARO OF LIABILITY, ITS INTENTION TO THE CONTRARY NOTWITHSTANDING,
BECAUSE IT HAD THE EFFECT OF PRECLUDING ANY DIRECT INFRINGEMENT TO
WHICH ARO COULD CONTRIBUTE.  WITH RESPECT TO THE PRE-AGREEMENT SALES,
HOWEVER, ARO'S CONTRIBUTORY INFRINGEMENT HAD ALREADY TAKEN PLACE AT THE
TIME OF THE AGREEMENT.  WHATEVER THE AGREEMENT'S EFFECT ON THE AMOUNT
RECOVERABLE FROM ARO - A MATTER TO BE DISCUSSED IN PART IV OF THIS
OPINION - IT CANNOT BE HELD, IN THE TEETH OF ITS CONTRARY LANGUAGE AND
INTENTION, TO HAVE ERASED THE EXTANT INFRINGEMENT. 

IT IS TRUE THAT A CONTRIBUTORY INFRINGER IS A SPECIES OF JOINT
TORTFEASOR, WHO IS HELD LIABLE BECAUSE HE HAS CONTRIBUTED WITH ANOTHER
TO THE CAUSING OF A SINGLE HARM TO THE PLAINTIFF.  SEE WALLACE V.
HOLMES, 29 FED. CAS. 74, 80 (NO. 17,100)(C.C.D. CONN. 1871); THOMSON
HOUSTON ELEC.  CO. V. OHIO BRASS CO., SUPRA, 80 F., AT 721; RICH, 21
GEO. WASH. L. REV. 521, 525 (1953).  IT IS ALSO TRUE THAT UNDER THE OLD
COMMON-LAW RULE, A RELEASE GIVEN TO ONE JOINT-TORTFEASOR NECESSARILY
RELEASED ANOTHER, EVEN THOUGH IT EXPRESSLY STATED THAT IT WOULD HAVE NO
SUCH EFFECT.  SEE PROSSER, TORTS (2D ED. 1955), AT 243-244.  UNDER THIS
RULE ARO'S ARGUMENT ON THIS POINT WOULD PREVAIL, SINCE THE AGREEMENT
DID RELEASE FORD'S PURCHASERS FOR THEIR INFRINGING USE OF THE TOP
STRUCTURES BEFORE THE AGREEMENT DATE, AND THAT WAS THE USE TO WHICH ARO
CONTRIBUTED.  SEE SCHIFF V. HAMMOND CLOCK CO., 69 F.2D 742, 746 (C.A.
7TH CIR. 1934), REVERSED FOR DISMISSAL AS MOOT, 293 U.S. 529.  BUT THE
RULE IS NOT APPLICABLE.  EVEN IN THE AREA OF NONPATENT TORTS, IT HAS
BEEN REPUDIATED BY STATUTE OR DECISION IN MANY IF NOT MOST STATES, SEE
PROSSER, SUPRA, AT 245, AND BY THE OVERWHELMING WEIGHT OF SCHOLARLY
AUTHORITY.  E.G., AMERICAN LAW INSTITUTE, RESTATEMENT OF TORTS (1939),
SEC. 885(1) AND COMMENTS B-D.  AND APPLICATION OF THE RULE TO
CONTRIBUTORY INFRINGEMENT HAS BEEN REJECTED BY THIS COURT.  IN BIRDSELL
V. SHALIOL, SUPRA, 112 U.S., AT 489, THE COURT APPLIED TO A PATENT CASE
THE PROPOSITION THAT "BY OUR LAW, JUDGMENT AGAINST ONE JOINT
TRESPASSER, WITHOUT FULL SATISFACTION, IS NO BAR TO A SUIT AGAINST
ANOTHER FOR THE SAME TRESPASS."  WHAT IS TRUE OF A JUDGMENT IS TRUE OF
A RELEASE.  SEE PROSSER, SUPRA, AT 241-244.  A RELEASE GIVEN A DIRECT
INFRINGER IN RESPECT OF PAST INFRINGEMENT, WHICH CLEARLY INTENDS TO
SAVE THE RELEASOR'S RIGHTS AGAINST A PAST CONTRIBUTORY INFRINGER, DOES
NOT AUTOMATICALLY SURRENDER THOSE RIGHTS.  THUS THE DISTRICT COURT WAS
CORRECT IN DENYING THAT "DEFENDANTS ARE ENTITLED TO THE FORTUITOUS
BENEFIT OF THE OLD JOINT TORT-FEASOR RULE."  THE MERE FACT THAT THE
AGREEMENT RELEASED FORD AND FORD'S CUSTOMERS FOR THEIR PAST
INFRINGEMENT DOES NOT NEGATE ARO'S LIABILITY FOR ITS PAST
INFRINGEMENT.  HENCE THE JUDGMENT OF THE COURT OF APPEALS, INSOFAR AS
IT RELATES TO FORD CAR REPLACEMENT-FABRIC SALES MADE BY ARO BEFORE JULY
21, 1955 - AND SUBJECT TO THE RESERVATION SET FORTH AT PP. 488-491,
SUPRA, WITH RESPECT TO SALES MADE BEFORE JANUARY 2, 1954 - IS AFFIRMED;
ACCORDINGLY, THE CASE IS REMANDED TO THE DISTRICT COURT FOR A
DETERMINATION OF DAMAGES AND FOR SUCH OTHER PROCEEDINGS AS THAT COURT
DEEMS APPROPRIATE. 

IV.  (FN18) 

THE CASE MUST NOW BE REMANDED FOR A DETERMINATION OF THE DAMAGES TO
BE RECOVERED FROM ARO IN RESPECT OF THE INFRINGING PRE-AGREEMENT
SALES.  IT IS TRUE THAT THE LOWER COURTS HAVE NOT YET EXPRESSLY
ADDRESSED THEMSELVES TO THE DAMAGES ISSUE, AND THAT THE PARTIES HAVE
NOT ARGUED IT HERE.  NEVERTHELESS, IT APPEARS THAT ALL CONCERNED IN
THIS LITIGATION HAVE SHARED A SPECIFIC ASSUMPTION AS TO THE MEASURE OF
DAMAGES THAT WOULD BE AVAILABLE TO CTR IF IT SUCCEEDED IN ESTABLISHING
INFRINGEMENT.  BECAUSE WE SHARPLY DISAGREE WITH THAT ASSUMPTION, AND
BECAUSE EXPRESSION OF OUR VIEWS MAY OBVIATE THE NEED UPON REMAND FOR
LENGTHY PROCEEDINGS BEFORE A MASTER IN THIS ALREADY OVER-LONG
LITIGATION, WE DEEM IT IN THE INTEREST OF EFFICIENT JUDICIAL
ADMINISTRATION TO EXPRESS THOSE VIEWS AT THIS TIME.  IN BRIEF, IT IS
OUR OPINION THAT THE FORD AGREEMENT, WHILE IT DOES NOT NEGATE ARO'S
LIABILITY FOR THE PRIOR SALES AS IT DOES FOR THE SUBSEQUENT ONES, DOES
HAVE THE EFFECT OF LIMITING THE AMOUNT THAT CTR CAN RECOVER FOR THE PRE
AGREEMENT INFRINGEMENT, AND PROBABLY OF PRECLUDING RECOVERY OF ANYTHING
MORE THAN NOMINAL DAMAGES. 

IF THE SUM PAID BY FORD FOR THE RELEASE OF IT AND ITS CUSTOMERS
CONSTITUTED FULL SATISFACTION TO AB FOR THE INFRINGING USE OF THE
PATENTED STRUCTURES, WE THINK IT CLEAR THAT CTR CANNOT NOW COLLECT
FURTHER PAYMENT FROM ARO FOR CONTRIBUTING TO THE SAME INFRINGING USE. 
THE RULE IS THAT: 

"PAYMENTS MADE BY ONE TORTFEASOR ON ACCOUNT OF A HARM FOR WHICH HE
AND ANOTHER ARE EACH LIABLE, DIMINISH THE AMOUNT OF THE CLAIM AGAINST
THE OTHER WHETHER OR NOT IT WAS SO AGREED AT THE TIME OF PAYMENT AND
WHETHER THE PAYMENT WAS MADE BEFORE OR AFTER JUDGMENT  ...  ." 
RESTATEMENT OF TORTS, SUPRA, SEC. 885(3). 

IT HAS BEEN SAID THAT "ALL COURTS ARE AGREED" UPON SUCH A RULE. 
PROSSER, SUPRA, AT 246.  AND ITS APPLICABILITY TO CONTRIBUTORY
INFRINGEMENT CASES HAS BEEN CLEARLY INDICATED BY THIS COURT.  BIRDSELL
V. SHALIOL, SUPRA, 112 U.S., AT 488-489; SEE HAZELTINE CORP. V. ATWATER
KENT MFG. CO., 34 F.2D 50, 52 (D.C.E.D. PA. 1929).  INDEED, IF "ACTUAL
DAMAGES" OR "FULL COMPENSATION" PAID BY A MAKER-AND-SELLER CAN HAVE THE
EFFECT OF RELEASING A USER, AS WAS INDICATED IN BIRDSELL, SUCH A RESULT
SHOULD FOLLOW A FORTIORI WHERE, AS HERE, THE DAMAGES PAID WERE
EXPRESSLY STATED TO BE COMPENSATION FOR USE OF THE DEVICE, AND THE
PERSON SUBSEQUENTLY SUED IS A CONTRIBUTORY INFRINGER LIABLE MERELY FOR
CONTRIBUTING TO THE SAME INFRINGING USE.  IN SUCH A CASE FULL PAYMENT
BY OR ON BEHALF OF THE DIRECT INFRINGER LEAVES NOTHING TO BE COLLECTED
FROM THE CONTRIBUTORY INFRINGER.  WE THEREFORE FIND IT NECESSARY TO
CONSIDER WHETHER THE PAYMENT BY FORD TO AB CONSTITUTED FULL PAYMENT FOR
THE INFRINGING USE COMMITTED DIRECTLY BY FORD'S PURCHASERS AND
CONTRIBUTORILY BY ARO. 

THIS DEPENDS UPON THE MEASURE AND TOTAL AMOUNT OF RECOVERY TO WHICH
CTR AND AB ARE ENTITLED.  IN PARTICULAR, IF THEY ARE ENTITLED TO
RECOVER A ROYALTY FROM ARO ON THE INFRINGING SALES OF REPLACEMENT
FABRICS, IT IS CLEAR THAT NO SUCH RECOVERY WAS INCLUDED IN THE PAYMENT
FROM FORD, WHOSE REPRESENTATIVES "WEREN'T INTERESTED IN BUYING ANY SORT
OF A RELEASE OR LICENSE OR ANYTHING ELSE THAT WOULD HELP OUT THESE
REPLACEMENT TOP PEOPLE."  SEE NOTE 12, SUPRA.  CTR DOES CONTEND, AND
ALL INVOLVED IN THIS LITIGATION HAVE APPARENTLY ASSUMED, THAT A
JUDGMENT HOLDING ARO LIABLE FOR CONTRIBUTORY INFRINGEMENT WILL RESULT
IN RECOVERY OF SUCH A ROYALTY ON ARO'S SALES.  (FN19)  THIS IS THE
ASSUMPTION WITH WHICH WE DISAGREE.  IT IS OUR VIEW THAT DESPITE OUR
AFFIRMANCE OF THE JUDGMENT AGAINST ARO AS TO SALES MADE BEFORE THE
AGREEMENT DATE, NO SUCH ROYALTY WILL BE AVAILABLE TO CTR AS PART OF ITS
RECOVERY.  WE ARE, INDEED, DOUBTFUL THAT CTR CAN PROPERLY BE ALLOWED
RECOVERY OF ANYTHING MORE THAN NOMINAL DAMAGES FROM ARO. 

THE MEASURE OF RECOVERY FOR PATENT INFRINGEMENT IS GOVERNED BY 35
U.S.C. SEC. 284, WHICH PROVIDES:

"UPON FINDING FOR THE CLAIMANT THE COURT SHALL AWARD THE CLAIMANT
DAMAGES ADEQUATE TO COMPENSATE FOR THE INFRINGEMENT, BUT IN NO EVENT
LESS THAN A REASONABLE ROYALTY FOR THE USE MADE OF THE INVENTION BY THE
INFRINGER, TOGETHER WITH INTEREST AND COSTS AS FIXED BY THE COURT. 

"WHEN THE DAMAGES ARE NOT FOUND BY A JURY, THE COURT SHALL ASSESS
THEM.  IN EITHER EVENT THE COURT MAY INCREASE THE DAMAGES UP TO THREE
TIMES THE AMOUNT FOUND OR ASSESSED." 

IT IS PRESUMABLY THE LANGUAGE "IN NO EVENT LESS THAN A REASONABLE
ROYALTY" THAT HAS LED TO THE ASSUMPTION NOTED ABOVE.  BUT THAT
ASSUMPTION IGNORES THE FACT - CLEAR FROM THE LANGUAGE, THE LEGISLATIVE
HISTORY, AND THE PRIOR LAW - THAT THE STATUTE ALLOWS THE AWARD OF A
REASONABLE ROYALTY, OR OF ANY OTHER RECOVERY, ONLY IF SUCH AMOUNT
CONSTITUTES "DAMAGES" FOR THE INFRINGEMENT.  IT ALSO IGNORES THE
IMPORTANT DISTINCTION BETWEEN "DAMAGES" AND "PROFITS," AND THE
RELEVANCE OF THIS DISTINCTION TO THE 1946 AMENDMENT OF THE STATUTE. 

"IN PATENT NOMENCLATURE WHAT THE INFRINGER MAKES IS 'PROFITS'; WHAT
THE OWNER OF THE PATENT LOSES BY SUCH INFRINGEMENT IS 'DAMAGES.'" 
DUPLATE CORP. V. TRIPLEX SAFETY GLASS CO., 298 U.S. 448, 451.   PROFITS
AND DAMAGES HAVE TRADITIONALLY BEEN ALL-INCLUSIVE AS THE TWO BASIC
ELEMENTS OF RECOVERY.  PRIOR TO 1946, THE STATUTORY PRECURSOR OF THE
PRESENT SEC. 284 ALLOWED RECOVERY OF BOTH AMOUNTS, READING AS FOLLOWS: 

"UPON A DECREE BEING RENDERED IN ANY SUCH CASE FOR AN INFRINGEMENT
THE COMPLAINANT SHALL BE ENTITLED TO RECOVER, IN ADDITION TO THE
PROFITS TO BE ACCOUNTED FOR BY THE DEFENDANT, THE DAMAGES THE
COMPLAINANT HAS SUSTAINED THEREBY  ...  ."  R.S. SEC. 4921, AS AMENDED,
42 STAT. 392. 

BY THE 1946 AMENDMENT, ACT OF AUGUST 1, 1946, C. 726, SEC. 1, 60
STAT. 778, 35 U.S.C.  (1946 ED.), SECS. 67, 70, THE STATUTE WAS CHANGED
TO APPROXIMATELY ITS PRESENT FORM, WHEREBY ONLY "DAMAGES" ARE
RECOVERABLE.  (FN20)  THE PURPOSE OF THE CHANGE WAS PRECISELY TO
ELIMINATE THE RECOVERY OF PROFITS AS SUCH AND ALLOW RECOVERY OF DAMAGES
ONLY. 

"THE OBJECT OF THE BILL IS TO MAKE THE BASIS OF RECOVERY IN PATENT
INFRINGEMENT SUITS GENERAL DAMAGES, THAT IS, ANY DAMAGES THE
COMPLAINANT CAN PROVE, NOT LESS THAN A REASONABLE ROYALTY, TOGETHER
WITH INTEREST FROM THE TIME INFRINGEMENT OCCURRED, RATHER THAN PROFITS
AND DAMAGES."  H.R. REP. NO. 1587, 79TH CONG., 2D SESS. (1946), TO
ACCOMPANY H.R. 5311, AT 1-2; S. REP. NO. 1503, 79TH CONG., 2D SESS.
(1946), TO ACCOMPANY H.R. 5311, AT 2.  (FN21)    THERE CAN BE NO DOUBT
THAT THE AMENDMENT SUCCEEDED IN EFFECTUATING THIS PURPOSE; IT IS CLEAR
THAT UNDER THE PRESENT STATUTE ONLY DAMAGES ARE RECOVERABLE.  SEE,
E.G., RIC-WIL CO. V. E.B. KAISER CO., 179 F.2D 401, 407 (C.A. 7TH CIR.
1950), CERT. DENIED, 339 U.S. 958; LIVESAY WINDOW CO. V. LIVESAY
INDISTRIES, INC., 251 F.2D 469, 471-472 (C.A. 5TH CIR. 1958); LASKOWITZ
V. MARIE DESIGNER, INC., 119 F. SUPP. 541, 554-555 (D.C.S.D. CAL.
1954); CULLEN, 28 J. PAT.  OFF.  SOC. 838 (1946); WOLFF, 28 J. PAT. 
OFF.  SOC. 877 (1946). 

THE 1946 AMENDMENT IS OF CRUCIAL SIGNIFICANCE TO THE TOTAL AMOUNT OF
CTR'S RECOVERY AGAINST ARO AND HENCE TO THE AMOUNT, IF ANY, THAT MAY
STILL BE RECOVERED AFTER RECEIPT OF THE PAYMENT FROM FORD.   WHEN
RECOVERY OF THE INFRINGER'S PROFITS AS SUCH WAS ALLOWED, THE RULE WAS
THAT "COMPLAINANT'S DAMAGES ARE NO CRITERION OF DEFENDANT'S PROFITS";
IT WAS "IMMATERIAL THAT THE PROFITS MADE BY THE DEFENDANT WOULD NOT
HAVE BEEN MADE BY THE PLAINTIFF."  3 WALKER, PATENTS (DELLER ED. 1937),
SEC. 845, AT 2186.  AND IN CASES OF JOINT INFRINGEMENT THIS COURT WAS
SAID TO HAVE DECLARED THE DOCTRINE THAT, WHEREAS "WHEN THE TOTAL DAMAGE
SUSTAINED HAS BEEN PAID BY ONE TORT-FEASOR, THE DAMAGES CANNOT BE
DUPLICATED THROUGH A RECOVERY AGAINST ANOTHER," NEVERTHELESS, "EVERY
INFRINGER OF A PATENT RIGHT MAY BE MADE TO GIVE UP WHATEVER PROFITS HE
HAS DERIVED FROM THE INFRINGEMENT, AND  ...  ONE INFRINGER IS NOT
RELIEVED BY PAYMENT BY ANOTHER INFRINGER, BUT EACH IS ACCOUNTABLE FOR
THE PROFITS WHICH HE HAS RECEIVED."  HAZELTINE CORP. V. ATWATER KENT
MFG. CO., SUPRA, 34 F.2D 50, 52.  UNDER SUCH A RULE, CTR MIGHT WELL
ARGUE THAT THE PAYMENT RECEIVED FROM FORD COULD HAVE NO EFFECT IN
PREVENTING IT FROM RECOVERING THE PROFITS MADE BY ARO - WHICH MIGHT
EVEN EXCEED THE AMOUNT OF A ROYALTY ON ARO'S SALES. 

BUT THE PRESENT STATUTORY RULE IS THAT ONLY "DAMAGES" MAY BE
RECOVERED.  THESE HAVE BEEN DEFINED BY THIS COURT AS "COMPENSATION FOR
THE PECUNIARY LOSS HE (THE PATENTEE) HAS SUFFERED FROM THE
INFRINGEMENT, WITHOUT REGARD TO THE QUESTION WHETHER THE DEFENDANT HAS
GAINED OR LOST BY HIS UNLAWFUL ACTS."  COUPE V. ROYER, 155 U.S. 565,
582.  THEY HAVE BEEN SAID TO CONSTITUTE "THE DIFFERENCE BETWEEN HIS
PECUNIARY CONDITION AFTER THE INFRINGEMENT, AND WHAT HIS CONDITION
WOULD HAVE BEEN IF THE INFRINGEMENT HAD NOT OCCURRED."  YALE LOCK MFG.
CO. V. SARGENT, 117 U.S. 536, 552.  THE QUESTION TO BE ASKED IN
DETERMINING DAMAGES IS "HOW MUCH HAD THE PATENT HOLDER AND LICENSEE
SUFFERED BY THE INFRINGEMENT.  AND THAT QUESTION IS PRIMARILY:  HAD THE
INFRINGER NOT INFRINGED, WHAT WOULD PATENT HOLDER-LICENSEE HAVE MADE?" 
LIVESAY WINDOW CO. V. LIVESAY INDUSTRIES, INC., SUPRA, 251 F.2D, AT
471. 

THUS, TO DETERMINE THE DAMAGES THAT MAY BE RECOVERED FROM ARO HERE,
WE MUST ASK HOW MUCH CTR SUFFERED BY ARO'S INFRINGEMENT - HOW MUCH IT
WOULD HAVE MADE IF ARO HAD NOT INFRINGED.  ASKING THAT QUESTION, WE MAY
ASSUME FIRST THAT THE AGREEMENT OF JULY 21, 1955, DID NOT EXIST AND
THAT AB HAD NOT COLLECTED A CENT FROM FORD.  EVEN ON THAT ASSUMPTION,
WE WOULD FIND IT DIFFICULT TO SEE WHY CTR'S DAMAGES SHOULD BE MEASURED
BY A ROYALTY ON ARO'S SALES.  CTR AND AB WERE NOT DEPRIVED OF SUCH A
ROYALTY BY ARO'S INFRINGEMENT, FOR THEY COULD NOT HAVE LICENSED ARO'S
SALES IN ANY EVENT; THEY WERE DENIED THE RIGHT TO DO SO IN ARO I, AND
WOULD STILL BE DENIED IT EVEN IF THEY HAD RECEIVED NO ROYALTIES ON THE
PATENTED COMBINATIONS THEMSELVES.  FOR THE RIGHT COULD NOT BE GRANTED
WITHOUT ALLOWING THE PATENTEE TO "DERIVE ITS PROFIT, NOT FROM THE
INVENTION ON WHICH THE LAW GIVES IT A MONOPOLY BUT FROM THE UNPATENTED
SUPPLIES WITH WHICH IT IS USED  ...  ."  MOTION PICTURE PATENTS CO. V.
UNIVERSAL FILM MFG. CO., 243 U.S. 502, 517; MERCOID CORP. V. MID
CONTINENT INVESTMENT CO., SUPRA, 320 U.S., AT 666-667.  IT WOULD BE
ABSURD TO SAY THAT WHAT CTR COULD NOT RECOVER FROM ARO IN ARO I AFTER
IT HAD LICENSED GENERAL MOTORS, IT COULD RECOVER HERE IF IT HAD STOOD
BY AND LET FORD INFRINGE - AS IT APPARENTLY DID, SEE P. 511, INFRA -
AND HAD THEN BROUGHT SUIT AGAINST ARO BEFORE SETTLING WITH FORD.  THE
RULES PROHIBITING EXTENSION OF THE PATENT MONOPOLY TO UNPATENTED
ELEMENTS ARE NOT SO READILY CIRCUMVENTED.  THIS DOES NOT MEAN, OF
COURSE, THAT CTR WOULD HAVE NO REMEDY FOR ARO'S CONTRIBUTORY
INFRINGEMENT.  IT COULD IN A PROPER CASE OBTAIN AN INJUNCTION; IT COULD
RECOVER SUCH DAMAGES AS HAD ACTUALLY BEEN SUFFERED FROM THE
CONTRIBUTORY INFRINGEMENT BY VIRTUE OF THE PROLONGATION OF THE USE OF
THE INFRINGING AUTOMOBILES; IT COULD IN A CASE OF WILLFUL OR BAD-FAITH
INFRINGEMENT RECOVER PUNITIVE OR "INCREASED" DAMAGES UNDER THE
STATUTE'S TREBLING PROVISION; AND IT COULD PERHAPS - WE EXPRESS NO VIEW
ON THE QUESTION - RECOVER FROM ARO A ROYALTY ON FORD'S SALES OF THE
PATENTED TOP-STRUCTURES, EVEN THOUGH SUCH DAMAGES WERE PRIMARILY CAUSED
NOT BY ARO'S INFRINGEMENT BUT BY FORD'S, IN A CASE WHERE THEY COULD NOT
BE RECOVERED FROM FORD OR FORD'S CUSTOMERS.  IT IS DIFFICULT TO
CONCEIVE OF ANY INSTANCE, HOWEVER, IN WHICH ACTUAL DAMAGES COULD
PROPERLY BE BASED ON A ROYALTY ON SALES OF AN UNPATENTED ARTICLE USED
MERELY TO REPAIR THE PATENTED STRUCTURE. 

IF CTR THUS COULD NOT COLLECT A ROYALTY ON ARO'S SALES IN THE ABSENCE
OF ANY PAYMENT FROM FORD, IT SURELY CANNOT DO SO HERE AFTER AB, IN
RETURN FOR $73,000, HAS RELEASED FORD AND FORD'S CUSTOMERS FROM
LIABILITY FOR THE DIRECT INFRINGEMENT TO WHICH ARO CONTRIBUTED.  ARE
THERE INDEED ANY ACTUAL DAMAGES THAT CTR CAN RECOVER FROM ARO AFTER
RECEIVING $73,000 FROM FORD?  THE ANSWER DEPENDS ON WHETHER CTR AND AB
SUFFERED ANY LOSS BY ARO'S INFRINGEMENT - WHICH DEPENDS IN TURN ON HOW
MUCH THEY WOULD HAVE MADE IF ARO HAD NOT INFRINGED.  BUT IN VIEW OF THE
MERELY CONTRIBUTORY NATURE OF ARO'S INFRINGEMENT, THIS LEADS IN TURN TO
THE QUESTION HOW MUCH CTR AND AB WOULD HAVE MADE IF FORD HAD NOT
INFRINGED; FOR IN THAT EVENT - AS WAS HELD IN ARO I WITH RESPECT TO THE
GENERAL MOTORS CARS, AND AS WE HAVE HELD IN PART II, SUPRA, WITH
RESPECT TO THE POST-AGREEMENT FORD CAR SALES - ARO COULD NOT HAVE
CONTRIBUTORILY INFRINGED.  IF FORD HAD NOT INFRINGED, AB WOULD HAVE
MADE A ROYALTY ON FORD'S SALES OF THE PATENTED TOP-STRUCTURES - AS IT
MADE SUCH A ROYALTY UNDER ITS LICENSE TO GENERAL MOTORS IN ARO I. THE
AMOUNT THAT WOULD THUS HAVE BEEN RECEIVED MUST BE COMPARED, HOWEVER,
WITH THE AMOUNT THAT AB IN FACT RECIEVED FROM FORD.  WE SHALL ASSUME
FOR THE PRESENT - ALTHOUGH CTR WILL HAVE AN OPPORTUNITY TO DISPROVE THE
ASSUMPTION UPON REMAND - THAT THE AMOUNT RECEIVED BY AB UNDER THE
AGREEMENT WAS THE SAME AMOUNT IT WOULD HAVE RECEIVED HAD IT LICENSED
FORD IN THE FIRST PLACE TO PRODUCE THE SAME NUMBER OF CONVERTIBLE
TOPS.  (FN22)  ON THIS ASSUMPTION, AB IS JUST AS WELL OFF NOW AS IT
WOULD HAVE BEEN IF FORD HAD NEVER INFRINGED THE PATENT.  AND SINCE IF
FORD HAD NOT INFRINGED, ARO COULD NOT HAVE CONTRIBUTORILY INFRINGED, IT
FOLLOWS THAT WHAT CTR AND AB WOULD HAVE MADE IF ARO HAD NOT INFRINGED
WAS PRECISELY WHAT THEY DID MAKE BY VIRTUE OF THE FORD AGREEMENT. 
THEIR PECUNIARY POSITION WAS NOT RENDERED ONE CENT WORSE BY THE TOTAL
INFRINGEMENT TO WHICH ARO CONTRIBUTED, AND HENCE THEY ARE NOT ENTITLED
ON THE ASSUMPTION STATED ABOVE AS TO THE PAYMENT BY FORD - TO ANYTHING
MORE THAN NOMINAL DAMAGES FROM ARO. 

TO ALLOW RECOVERY OF A ROYALTY ON ARO'S SALES AFTER RECEIPT OF THE
EQUIVALENT OF A ROYALTY ON FORD'S SALES, OR TO ALLOW ANY RECOVERY FROM
ARO AFTER RECEIPT OF FULL SATISFACTION FROM FORD, WOULD NOT ONLY
DISREGARD THE STATUTORY PROVISION FOR RECOVERY OF "DAMAGES" ONLY, BUT
WOULD BE AT WAR WITH VIRTUALLY EVERY POLICY CONSIDERATION IN THIS AREA
OF THE LAW.  IT WOULD ENABLE THE PATENTEE TO DERIVE A PROFIT NOT MERELY
ON UNPATENTED RATHER THAN PATENTED GOODS - AN ACHIEVEMENT PROSCRIBED BY
THE MOTION PICTURE PATENTS AND MERCOID CASES, SUPRA - BUT ON UNPATENTED
AND PATENTED GOODS.  IN THUS DOUBLING THE NUMBER OF REWARDS TO WHICH A
PATENTEE IS ENTITLED "UNDER OUR PATENT LAW AS WRITTEN," SEE MR. JUSTICE
BLACK CONCURRING IN ARO I, 365 U.S., AT 360, IT WOULD SERIOUSLY
RESTRICT THE PURCHASER'S LONG-ESTABLISHED RIGHT TO USE AND REPAIR AN
ARTICLE WHICH HE HAS LEGALLY PURCHASED AND FOR THE USE OF WHICH THE
PATENTEE HAS BEEN COMPENSATED.  SEE ADAMS V. BURKE, 17 WALL.  453.  THE
PATENTEE COULD ACHIEVE THIS RESULT, MOREOVER, BY THE SIMPLE TACTIC OF
NOT LICENSING OR SUING THE MANUFACTURER IN THE FIRST PLACE, BUT RATHER
STANDING BY WHILE THE DIRECT INFRINGEMENT OCCURS, THUS ALLOWING
CONTRIBUTORY INFRINGEMENTS TO SPRING UP AROUND HIM, WITH THE RESULT OF
BRINGING WITHIN THE REACH OF HIS MONOPOLY UNPATENTED ITEMS THAT WOULD
NEVER HAVE BEEN THERE IF THE MANUFACTURER HAD BEEN LICENSED FROM THE
START.  AND LITTLE IS SACRIFICED, FOR IT IS ALMOST POSSIBLE TO SUE OR
SETTLE WITH THE MANUFACTURER AT A LATER DATE.  THIS IN FACT SEEMS TO
HAVE BEEN THE STRATEGY THAT AB EMPLOYED HERE.  IT FIRST SENT FORD A
NOTICE OF INFRINGEMENT - ACCORDING TO THE DEPOSITION TESTIMONY OF AB'S
OWN COUNSEL - IN LATE 1953, "A DAY OR SO AFTER WE GOT THE PATENT."  YET
IT DID NOTHING TO STOP FORD'S INFRINGEMENT, AND DID NOT SETTLE WITH
FORD UNTIL 18 MONTHS LATER, BY WHICH TIME ALL THE AUTOMOBILES IN
QUESTION HAD BEEN MANUFACTURED.  IN VIEW OF THE APPARENTLY DELIBERATE
DELAY AND OF THE UNQUESTIONABLY SOLVENT STATUS OF THE INFRINGER, IT
INDEED SEEMS UNLIKELY THAT THE AMOUNT PAID FOR THE RELEASE WAS LESS
THAN WOULD HAVE BEEN PAID UNDER A LICENSE.  IN ANY EVENT, THE NOTION IS
INTOLERABLE THAT BY SUCH DELAY CTR AND AB COULD ENTITLE THEMSELVES TO
COLLECT FROM ARO WHAT THEY COULD NOT HAVE COLLECTED HAD FORD BEEN
LICENSED FROM THE START AS GENERAL MOTORS WAS. 

TO ACHIEVE SUCH A RESULT THROUGH USE OF THE CONTRIBUTORY INFRINGEMENT
DOCTRINE WOULD BE ESPECIALLY IRONIC, IN VIEW OF THE PURPOSE OF THAT
DOCTRINE AS SET FORTH IN CASE LAW AND COMMENTARY AND AS PRESENTED TO
THE CONGRESS IN URGING PASSAGE OF SEC. 271(C).  THAT PURPOSE IS
ESSENTIALLY, AS WAS STATED IN THE EARLIER VERSIONS OF THE BILL THAT
BECAME SEC. 271(C), "TO PROVIDE FOR THE PROTECTION OF PATENT RIGHTS
WHERE ENFORCEMENT AGAINST DIRECT INFRINGERS IS IMPRACTICABLE."  H.R.
5988, 80TH CONG., 2D SESS.; H.R. 3866, 81ST CONG., 1ST SESS.  AT THE
HEARINGS ON SEC. 271(C) ITSELF, MR. RICH, SEE N. 6, SUPRA, EXPLAINED TO
THE SUBCOMMITTEE THAT "THERE MAY BE TWENTY OR THIRTY PERCENT OF ALL THE
PATENTS THAT ARE GRANTED THAT CANNOT PRACTICALLY BE ENFORCED AGAINST
DIRECT INFRINGERS  ...  ."  HEARINGS, SUPRA, N. 6, AT 160.  (FN23)
SUCH A PURPOSE MIGHT HAVE BEEN APPLICABLE HERE IF CTR AND AB HAD BEEN
UNABLE TO ENFORCE THE PATENT AGAINST FORD (A RATHER UNLIKELY EVENT),
SINCE IT WOULD INDEED HAVE BEEN IMPRACTICAL TO SUE EVERY ONE OF THE CAR
OWNERS.  BUT WHERE THE PATENTEE HAS IN FACT ENFORCED THE PATENT AGAINST
SO SOLVENT AND ACCESSIBLE A DIRECT INFRINGER AS FORD, IT IS DIFFICULT
TO SEE WHY IT SHOULD THEN BE ALLOWED TO INVOKE THE CONTRIBUTORY
INFRINGEMENT DOCTRINE - DESIGNED FOR CASES "WHERE ENFORCEMENT AGAINST
DIRECT INFRINGERS IS IMPRACTICABLE" - SO AS TO ENFORCE THE PATENT A
SECOND TIME AND OBTAIN A REWARD THAT IT COULD NOT EXTRACT FROM A DIRECT
INFRINGER ALONE.  WHATEVER THE RESULT MIGHT HAVE BEEN UNDER THE OLD
"DAMAGES AND PROFITS" PROVISION, NO SUCH PERVERSION OF THE
CONGRESSIONAL PURPOSE IS POSSIBLE WITHIN THE RULE ALLOWING RECOVERY OF
"DAMAGES" ONLY. 

HENCE WE THINK THAT AFTER A PATENTEE HAS COLLECTED FROM OR ON BEHALF
OF A DIRECT INFRINGER DAMAGES SUFFICIENT TO PUT HIM IN THE POSITION HE
WOULD HAVE OCCUPIED HAD THERE BEEN NO INFRINGEMENT, HE CANNOT
THEREAFTER COLLECT ACTUAL DAMAGES FROM A PERSON LIABLE ONLY FOR
CONTRIBUTING TO THE SAME INFRINGEMENT.  THIS PRINCIPLE IS BUT AN
APPLICATION OF THE RULE THAT FULL SATISFACTION RECEIVED FROM ONE TORT
FEASOR PREVENTS FURTHER RECOVERY AGAINST ANOTHER.  IT IS CONSISTENT
WITH THE COURT'S OPINION IN BIRDSELL V. SHALIOL, SUPRA, 112 U.S., AT
488-489.  SEE ALSO GEORGE HAISS MFG. CO. V. LINK-BELT CO., 63 F.2D 479,
481 (C.A. 3D CIR. 1932); BUERK V. IMHAEUSER, NOTE 14, SUPRA, 4 FED.
CAS. 597.  AND IT IS SQUARELY IN ACCORD WITH A RECENT DECISION OF THE
COURT OF APPEALS FOR THE SECOND CIRCUIT.  FARRAND OPTICAL CO., INC., V.
UNITED STATES, 325 F.2D 328, 335 (C.A.2D CIR. 1963).  NOR IS THERE ANY
AUTHORITY, EVEN IN LOWER COURTS, DIRECTLY TO THE CONTRARY.  OF THE MANY
CASES CITED BY CTR FOR THE CORRECT PROPOSITION THAT USE OR REPAIR OF AN
INFRINGING STRUCTURE CONSTITUTES INFRINGEMENT, RELATIVELY FEW DEAL AT
ALL WITH THE QUESTION OF AMOUNT OF RECOVERY.  SOME OF THESE, IT IS
TRUE, DO ALLOW RECOVERY ON SALES OF INFRINGING MACHINES AND A FURTHER
RECOVERY ON SALES OF SPARE PARTS FOR THOSE MACHINES.  BUT THEY ARE ALL
DISTINGUISHABLE; EITHER THE PARTS THEMSELVES WERE PATENTED, (FN24) OR
THE INFRINGING PARTS-SUPPLIER HAD SOLD THE MACHINES AS WELL AND THUS
HAD ARGUABLY TAKEN THE SALES OF BOTH MACHINES AND PARTS AWAY FROM THE
PATENTEE, (FN25) OR THE OVERLAPPING RECOVERY ALLOWED FROM THE DIRECT
AND CONTRIBUTORY INFRINGERS WAS ONE OF PROFITS RATHER THAN DAMAGES. 
(FN26) 

IN THE FARRAND CASE, SUPRA, THE PAYMENT BY THE DIRECT INFRINGER WAS
MADE UNDER JUDICIAL DECREE, AND THERE COULD THUS BE NO QUESTION BUT
THAT IT REPRESENTED FULL COMPENSATION FOR THE INFRINGING USE.  WHERE A
PRIVATE RELEASE OF PAST INFRINGEMENT WHICH DOES NOT PURPORT TO RELEASE
OTHERS IS INVOLVED, THE ADEQUACY OF THE COMPENSATION MUST ALWAYS BE A
QUESTION OF FACT.  HENCE HERE, WHILE IT SEEMS UNLIKELY THAT FORD'S
PAYMENT UNDER THE AGREEMENT WAS ANY LESS THAN WOULD HAVE BEEN PAID
UNDER A LICENSE - THAT IS, ANYTHING LESS THAN FULL SATISFACTION TO AB
FOR THE INFRINGING USE COMMITTED DIRECTLY BY FORD'S PURCHASERS AND
CONTRIBUTORILY BY ARO - WE THINK THE CASE MUST NEVERTHELESS BE REMANDED
FOR FINDINGS ON THE QUESTION.  WE WOULD ALSO ALLOW THE LOWER COURTS TO
CONSIDER WHETHER ARO'S CONDUCT HAS BEEN SUCH AS TO WARRANT AN AWARD OF
PUNITIVE OR INCREASED DAMAGES, ALTHOUGH WE THINK THAT VERY UNLIKELY. 
                                           V. 

THE RESULT IS THAT THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED
INSOFAR AS IT HOLDS ARO LIABLE FOR CONTRIBUTORY INFRINGEMENT WITH
RESPECT TO REPLACEMENT-FABRIC SALES MADE AFTER JULY 21, 1955.  THE
JUDGMENT IS AFFIRMED INSOFAR AS IT HOLDS ARO LIABLE WITH RESPECT TO
SALES MADE BEFORE THAT DATE, BUT SUBJECT TO THE RESERVATION BASED ON
THE KNOWLEDGE REQUIREMENT WITH RESPECT TO SALES MADE BEFORE JANUARY 2,
1954.  THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED.    FN1
THE REPAIR-VERSUS-RECONSTRUCTION ISSUE HAD BEEN THE ONLY ISSUE
EXPRESSLY CONSIDERED OR DECIDED BY THE COURT OF APPEALS ON REVIEW OF
THE DISTRICT COURT'S ORIGINAL INTERLOCUTORY JUDGMENT, SEE 270 F.2D, AT
202, AND WAS THUS THE FOCAL POINT OF THE BRIEFS AND ARGUMENTS HERE IN
ARO I. SEE, E.G., BRIEF FOR THE UNITED STATES AS AMICUS CURIAE, AT 2-3
AND N. 1; BUT SEE BRIEF FOR THE RESPONDENT, AT 73-76.  THAT THE COURT
CONSIDERED NO OTHER ISSUE, AND THUS DEALT ONLY WITH THE GENERAL MOTORS
AND NOT WITH THE FORD CARS, IS EVIDENT FROM ITS STATEMENT OF THE
"DETERMINATIVE QUESTION" AS BEING THAT OF REPAIR VERSUS RECONSTRUCTION,
365 U.S., AT 342; FROM ITS FAILURE TO CONSIDER THE BODY OF AUTHORITY
HOLDING THAT EVEN REPAIR OF AN INFRINGING ARTICLE CONSTITUTES
INFRINGEMENT; AND FROM, AMONG OTHER SUCH STATEMENTS IN ITS OPINION, SEE
ID., AT 344, 346, ITS RELIANCE ON THE PROPOSITION THAT "A LICENSE TO
USE A PATENTED COMBINATION INCLUDES THE RIGHT" TO REPAIR IT, ID., AT
345 - A PROPOSITION THAT OF COURSE WAS NOT APPLICABLE TO THE FORD CARS,
WHOSE OWNERS HAD PURCHASED THE PATENTED STRUCTURES FROM AN UNLICENSED
MANUFACTURER AND THUS HAD NO "LICENSE TO USE" THEM.  THE THREE OTHER
OPINIONS IN ARO I WERE LIKEWISE DIRECTED ENTIRELY TO THE ISSUE OF
REPAIR VERSUS RECONSTRUCTION, AND GAVE NO ATTENTION TO THE DIFFERENT
CONSIDERATIONS THAT WOULD COME INTO PLAY IN THE ABSENCE OF A LICENSE
FROM THE PATENTEE TO THE AUTOMOBILE MANUFACTURER.  THE CONCURRING
OPINION OF MR. JUSTICE BLACK, FOR EXAMPLE, RELIED ON THE PROPOSITION
THAT "ONE ROYALTY TO ONE PATENTEE FOR ONE SALE IS ENOUGH UNDER OUR
PATENT LAW AS WRITTEN," 365 U.S., AT 360, WHICH WOULD SEEM INAPPLICABLE
TO THE SITUATION PRESENTED BY THE FORD CARS, WHERE THE PATENTEE HAD NOT
RECEIVED ANY ROYALTY ON THE SALE OF THE PATENTED STRUCTURES.  SEE ALSO
ID., AT 354, 356, N. 9; AND SEE THE DISSENTING OPINION OF MR. JUSTICE
HARLAN.  365 U.S., AT 369, 373.  THE CONCURRING OPINION OF MR. JUSTICE
BRENNAN DID REFER TO THE PRESENCE IN THE CASE OF THE UNLICENSED FORD
CARS; IT STATED, 365 U.S., AT 368, THAT "THE JUDGMENT OF THE COURT OF
APPEALS MUST BE REVERSED, EXCEPT, HOWEVER, AS TO THE RELIEF GRANTED
RESPONDENT (CTR) IN RESPECT OF THE REPLACEMENTS MADE ON FORD CARS ...
.'  THAT THE AUTHOR OF THAT OPINION DID NOT UNDERSTAND THE COURT AS
HAVING RULED DIFFERENTLY ON THE FORD CAR QUESTION, OR AS HAVING RULED
ON IT AT ALL, IS SHOWN BY THE FACT THAT HE CONCURRED GENERALLY IN THE
RESULT, RATHER THAN CONCURRING IN PART AND DISSENTING IN PART.  THE
COURT SAID NOTHING TO INDICATE DISAGREEMENT WITH THIS INTERPRETATION OF
ITS OPINION AND DECISION. 

FN2  WE ALSO GRANTED ARO'S MOTION FOR LEAVE TO USE THE RECORD THAT
WAS BEFORE US IN ARO I. 372 U.S. 958. 

CTR HAS MADE A MOTION TO SETTLE THE RECORD, ASKING US TO DECLARE THAT
CERTAIN ITEMS DESIGNATED FOR PRINTING BY ARO DO NOT COMPRISE A PORTION
OF THE RECORD BEFORE THIS COURT.  WE POSTPONED FURTHER CONSIDERATION OF
THE MOTION UNTIL THE HEARING OF THE CASE ON THE MERITS.  375 U.S. 804. 
THE ITEMS IN QUESTION, WHICH WERE NOT INCLUDED IN THE RECORD IN ARO I,
CONSIST OF CERTAIN REQUESTS FOR ADMISSIONS AND ANSWERS THERETO, AND OF
MATERIALS INVOLVED IN AN ACCOUNTING PROCEEDING BEGUN AFTER THE ORIGINAL
AFFIRMANCE BY THE COURT OF APPEALS BUT SUBSEQUENTLY STAYED AND NEVER
COMPLETED.  A MOTION TO STRIKE THE SAME MATERIALS FROM THE RECORD WAS
MADE BY CTR IN THE COURSE OF THE SECOND APPEAL TO THE COURT OF APPEALS,
AND WAS DENIED BY THAT COURT "WITHOUT PREJUDICE TO RENEWAL IN ITS
BRIEF, AT THE ORAL ARGUMENT, OR UPON TAXATION OF COSTS."  CTR DID NOT
RENEW THE MOTION UPON BRIEF OR ORAL ARGUMENT IN THE COURT OF APPEALS,
BUT SAYS THAT IT STILL INTENDS TO DO SO UPON TAXATION OF COSTS IF COSTS
SHOULD EVER BE TAXED AGAINST IT BY THE COURT OF APPEALS.  BECAUSE OF
THESE EVENTS IN THE COURT OF APPEALS, THE MOTION IN THIS COURT IS ALSO
DENIED, WITHOUT PREJUDICE TO ITS RENEWAL UPON TAXATION OF COSTS IN THE
COURT OF APPEALS. 

FN3  THIS PART OF THE OPINION - WITH THE EXCEPTION OF THE POINT
DISCUSSED AT P. 488 AND NOTE 8, INFRA - EXPRESSES THE VIEWS OF JUSTICES
HARLAN, BRENNAN, STEWART, WHITE, AND GOLDBERG. 

FN4  THE CASE WILL BE CONSIDERED IN THIS PART OF THE OPINION WITHOUT
REFERENCE TO THE AGREEMENT MADE ON JULY 21, 1955, BETWEEN FORD AND AB,
AND THUS ON THE ASSUMPTION THAT FORD NEVER OBTAINED ANY AUTHORITY UNDER
THE PATENT.  THE EFFECT OF THAT AGREEMENT WILL BE CONSIDERED IN
SUCCEEDING PARTS OF THE OPINION. 

FN5  WE HAVE NO NEED TO CONSIDER WHETHER THE CAR OWNERS, IF SUED FOR
INFRINGEMENT BY THE PATENTEE, WOULD BE ENTITLED TO INDEMNITY FROM FORD
ON A BREACH OF WARRANTY THEORY.  IN FACT THEY WERE NOT SUED, AND WERE
RELEASED FROM LIABILITY BY THE AGREEMENT BETWEEN FORD AND AB. SEE
INFRA, AT 493-495. 

FN6  THE SECTION WAS DESIGNED TO "CODIFY IN STATUTORY FORM PRINCIPLES
OF CONTRIBUTORY INFRINGEMENT" WHICH HAD BEEN "PART OF OUR LAW FOR ABOUT
80 YEARS."  H.R. REP. NO. 1923 ON H.R. 7794, 82D CONG., 2D SESS., AT 9;
SEE ALSO CONGRESSMAN ROGERS' STATEMENT, HEARINGS BEFORE SUBCOMMITTEE
NO. 3 OF THE HOUSE JUDICIARY COMMITTEE ON H.R. 3760, 82D CONG., 1ST
SESS., AT 159: 

"THEN IN EFFECT THIS RECODIFICATION, PARTICULARLY AS TO SECTION 231
(WHICH BECAME SEC. 271 IN THE PATENT CODE OF 1952), WOULD POINT OUT TO
THE COURT, AT LEAST THAT IT WAS THE SENSE OF CONGRESS THAT WE REMOVE
THIS QUESTION OF CONFUSION AS TO WHETHER CONTRIBUTORY INFRINGEMENT
EXISTED AT ALL, AND STATE IN POSITIVE LAW THAT THERE IS SUCH A THING AS
CONTRIBUTORY INFRINGEMENT, OR AT LEAST IT BE THE SENSE OF CONGRESS BY
THE ENACTMENT OF THIS LAW THAT IF YOU HAVE IN THE MERCOID CASE (320
U.S. 661, 680) DONE AWAY WITH CONTRIBUTORY INFRINGEMENT, THEN WE
REINSTATE IT AS A MATTER OF SUBSTANTIVE LAW OF THE UNITED STATES AND
THAT YOU SHALL HEREAFTER IN A PROPER CASE RECOGNIZE OR HOLD LIABLE ONE
WHO HAS CONTRIBUTED TO THE INFRINGEMENT OF A PATENT. 

"THAT IS THE SUBSTANTIVE LAW THAT WE WOULD WRITE IF WE ADOPTED THIS

MR. GILES S. RICH, NOW JUDGE OF THE COURT OF CUSTOMS AND PATENT
APPEALS, THEN SPOKESMAN FOR PROPONENTS OF SEC. 271(C), ANSWERED THAT
THE STATEMENT OF THE BILL'S PURPOSE WAS "VERY EXCELLENT."  IBID.  SEE
ALSO 98 CONG. REC. 9323, 82D CONG., 2D SESS., JULY 4, 1952 (COLLOQUY OF
SENATORS SALTONSTALL AND MCCARRAN). 

FN7  ARO'S FACTORY MANAGER ADMITTED THAT THE FABRIC REPLACEMENTS IN
QUESTION NOT ONLY WERE SPECIALLY DESIGNED FOR THE FORD CONVERTIBLES BUT
WOULD NOT, TO HIS KNOWLEDGE, FIT THE TOP-STRUCTURES OF ANY OTHER CARS. 

FN8  THIS VIEW IS HELD BY THE CHIEF JUSTICE AND JUSTICES BLACK,
DOUGLAS, CLARK AND WHITE.  SEE THE OPINION OF MR. JUSTICE BLACK, POST,
PP. 524-528, AND OF MR. JUSTICE WHITE, POST, P. 514. 

JUSTICES HARLAN, BRENNAN, STEWART AND GOLDBERG DISSENT FROM THIS
INTERPRETATION OF THE STATUTE.  THEY ARE OF THE VIEW THAT THE KNOWLEDGE
CONGRESS MEANT TO REQUIRE WAS SIMPLY KNOWLEDGE THAT THE COMPONENT WAS
ESPECIALLY DESIGNED FOR USE IN A COMBINATION AND WAS NOT A STAPLE
ARTICLE SUITABLE FOR SUBSTANTIAL OTHER USE, AND NOT KNOWLEDGE THAT THE
COMBINATION WAS EITHER PATENTED OR INFRINGING.  THEIR REASONS MAY BE
SUMMARIZED AS FOLLOWS: 

(1)  NO OTHER RESULT WOULD HAVE BEEN CONSISTENT WITH THE
CONGRESSIONAL INTENTION TO CODIFY THE CASE LAW OF CONTRIBUTORY
INFRINGEMENT AS IT EXISTED PRIOR TO THIS COURT'S DECISION IN MERCOID
CORP. V. MID-CONTINENT INVESTMENT CO., 320 U.S. 661 - AND TO DO THIS
NOT ONLY IN GENERAL, SEE NOTE 6, SUPRA, AND P. 492, INFRA, BUT WITH
SPECIFIC REFERENCE TO THE KNOWLEDGE REQUIREMENT.  SEE HEARINGS, SUPRA,
NOTE 6, AT 159-160, 163-165.  UNDER THAT CASE LAW, LIABILITY WAS
ESTABLISHED BY A SHOWING THAT THE COMPONENT WAS SUITABLE FOR NO
SUBSTANTIAL USE OTHER THAN IN THE PATENTED COMBINATION, SINCE IT WAS
"THE DUTY OF THE DEFENDANT TO SEE TO IT THAT SUCH COMBINATIONS WHICH IT
IS INTENTIONALLY INDUCING AND PROMOTING SHALL BE CONFINED TO THOSE
WHICH MAY BE LAWFULLY ORGANIZED."  THOMSON-HOUSTON ELEC.  CO. V. OHIO
BRASS CO., SUPRA, 80 F., AT 720-723.  ACCORD, MERCOID CORP. V. MID
CONTINENT INVESTMENT CO., SUPRA, 320 U.S., AT 664; 3 WALKER, PATENTS
(DELLER ED. 1937), AT 1764-1765, AND CASES CITED.  SEE FREEDMAN V.
FRIEDMAN, 243 F.2D 364 (C.A. 4TH CIR. 1957). 

(2)  THE HOUSE COMMITTEE'S CHANGE IN THE LANGUAGE OF THE BILL
CONCERNING THE KNOWLEDGE REQUIREMENT, SEE THE OPINION OF MR. JUSTICE
BLACK, POST, PP. 524-528, WAS NOT INTENDED TO LIMIT LIABILITY TO CASES
WHERE THE ALLEGED CONTRIBUTORY INFRINGER HAD KNOWLEDGE OF THE PATENTED
OR INFRINGING NATURE OF THE COMBINATION; IT WAS INTENDED MERELY TO
ASSURE THAT THE STATUTE WOULD BE CONSTRUED TO REQUIRE KNOWLEDGE THAT
THE ARTICLE SOLD WAS A COMPONENT OF SOME COMBINATION AND WAS ESPECIALLY
DESIGNED FOR USE THEREIN, RATHER THAN SIMPLY KNOWLEDGE THAT THE ARTICLE
WAS BEING SOLD.  SEE, E.G., THE STATEMENT OF CONGRESSMAN CRUMPACKER,
HEARINGS, SUPRA, AT 175, OBJECTING TO THE ORIGINAL LANGUAGE ON THE
GROUND THAT "THE WAY IT IS PHRASED THE WORD 'KNOWINGLY' REFERS DIRECTLY
TO THE WORD 'SELLS.'"  SEE ALSO ID., AT 175-176.  WHILE THE
REPRESENTATIVES OF A MANUFACTURING CONCERN AND OF THE JUSTICE
DEPARTMENT DID URGE THE COMMITTEE TO ADOPT THE POSITION WHICH THE COURT
NOW HOLDS IT DID ADOPT, NONE OF THE CONGRESSMEN SAID ANYTHING TO
INDICATE AGREEMENT WITH THESE VIEWS OR DISAGREEMENT WITH THE CONTRARY
VIEW EXPRESSED BY THE SPOKESMAN FOR THE SPONSORS OF THE BILL.  THIS
VIEW, AS CLEARLY STATED ON SEVERAL OCCASIONS AT THE HEARINGS, WAS
THAT: 

"YOU KNOW THAT THE COMPONENT IS GOING INTO THAT MACHINE.  YOU DON'T
HAVE TO KNOW THAT IT IS PATENTED.  YOU DON'T HAVE TO KNOW THE NUMBER OF
THE PATENT, AND YOU DON'T HAVE TO KNOW THAT THE MACHINE THAT IT IS
GOING INTO CONSTITUTES AN INFRINGEMENT."  ID., AT 175; SEE ALSO ID., AT
160, 176. 

(3)  THE SUGGESTION THAT A PERSON CANNOT BE LIABLE EVEN FOR DIRECT
INFRINGEMENT WHEN HE HAS NO KNOWLEDGE OF THE PATENT OR THE INFRINGEMENT
IS CLEARLY REFUTED BY THE WORDS OF SEC. 271(A), WHICH PROVIDES THAT
"WHOEVER WITHOUT AUTHORITY MAKES, USES OR SELLS ANY PATENTED INVENTION
...  INFRINGES THE PATENT," WITH NO MENTION OF ANY KNOWLEDGE
REQUIREMENT.  AND THE CASE LAW CODIFIED BY SEC. 271 HAS LONG RECOGNIZED
THE FUNDAMENTAL PROPOSITION THAT "TO CONSTITUTE AN INFRINGEMENT OF A
PATENT, IT IS NOT NECESSARY THAT THE INFRINGER SHOULD HAVE KNOWN OF THE
EXISTENCE OF THE PATENT AT THE TIME HE INFRINGED IT OR, KNOWING OF ITS
EXISTENCE, IT IS NOT NECESSARY THAT HE SHOULD HAVE KNOWN HIS DOINGS TO
CONSTITUTE AN INFRINGEMENT."  3 WALKER, PATENTS (DELLER ED. 1937), SEC.
453.  SEE, E.G., UNITED STATES V. BERDAN FIRE-ARMS MFG. CO., 156 U.S.
552, 566; SONTAG CHAIN STORES CO. V. NATIONAL NUT CO., 310 U.S. 281,
295; BOYDEN V. BURKE, 14 HOW.  575, 582. 

(4)  SECTION 287 OF 35 U.S.C., QUOTED IN THE OPINION OF MR. JUSTICE
BLACK, POST, P. 528, N. 14, DOES NOT REQUIRE A DIFFERENT CONCLUSION. 
THAT SECTION PREVENTS A PATENTEE FROM RECOVERING DAMAGES FOR
INFRINGEMENT UNLESS HE HAS MARKED THE PATENTED ARTICLE WITH NOTICE OF
THE PATENT.  SINCE A PATENTEE MAY HARDLY BE EXPECTED TO MARK THE
ARTICLE WHEN IT HAS NOT BEEN MANUFACTURED OR SOLD BY HIM, BUT RATHER BY
AN INFRINGER, THE SECTION HAS BEEN HELD NOT TO APPLY TO SUCH A
SITUATION.  WINE RY. APPLIANCE CO. V. ENTERPRISE RY. EQUIP.  CO., 297
U.S. 387.  THAT OF COURSE IS THE SITUATION HERE WITH RESPECT TO THE
FORD CARS. 

FN9  ARO DOES CONTEND HERE THAT RECOVERY BY CTR IS PRECLUDED BY
MISUSE OF THE PATENT, AND ALSO THAT SUCH MISUSE ENTITLES ARO TO AN
AWARD OF TREBLE DAMAGES FOR VIOLATION OF THE ANTITRUST LAWS.  ALTHOUGH
THE POINT WAS ARGUABLY RAISED BY ARO'S ORIGINAL ANSWER AND
COUNTERCLAIM, AND WAS DECIDED AGAINST ARO IN THE ORIGINAL OPINION OF
THE DISTRICT COURT, 119 U.S.P.Q., AT 122, N. 1, IT WAS SUBSTANTIALLY
ABANDONED ON THE FIRST APPEAL, AND HENCE WAS NOT RULED ON IN THE FIRST
OPINION OF THE COURT OF APPEALS.  ACCORDINGLY, THIS COURT'S OPINION IN
ARO I STATED THAT PATENT MISUSE "IS NOT AN ISSUE IN THIS CASE."  365
U.S., AT 344, N. 10; SEE ALSO THE DISSENTING OPINION OF MR. JUSTICE
HARLAN, 365 U.S., AT 376-377 AND N. 5.  ON REMAND, AFTER THE DISTRICT
COURT HAD DISMISSED WITHOUT PREJUDICE THE COUNTERCLAIM ALLEGING MISUSE,
THE COURT OF APPEALS HELD THAT NEITHER THE DEFENSE BASED ON MISUSE NOR
THE COUNTERCLAIM WAS IN THE CASE, THE DEFENSE HAVING BEEN "CLEARLY
ABANDONED" AND THE COUNTERCLAIM NEVER HAVING BEEN ADEQUATELY PLEADED. 
312 F.2D, AT 58.  WE DO NOT FIND ERROR IN THIS RULING, AND THUS HAVE NO
OCCASION TO CONSIDER ARO'S ALLEGATIONS OF PATENT MISUSE. 

FN10  WE HAVE NO DOUBT THAT SEC. 271(C) AS SO CONSTRUED AND APPLIED,
WITHIN THE LIMITATIONS SET FORTH IN THE SUCCEEDING PORTIONS OF THIS
OPINION, IS CONSTITUTIONAL. 

FN11  THIS PART OF THE OPINION EXPRESSES THE VIEWS OF JUSTICES
BRENNAN, STEWART, WHITE, AND GOLDBERG.  MR. JUSTICE HARLAN CONCURS IN
THE RESULT. 

FN12  COUNSEL FOR AB TESTIFIED ON DEPOSITION AS FOLLOWS: 

"I  ...  DEFINITELY TOLD THEM THAT THERE WERE THESE OTHER REPLACEMENT
TOP MANUFACTURERS AND THAT IF WE WERE LEFT IN A POSITION TO COLLECT
ROYALTY FROM THEM, THAT OBVIOUSLY WE COULD GIVE FORD A LOWER RATE, AND
THAT IS WHAT FORD SAID THEY WANTED, THAT THEY WEREN'T INTERESTED IN
BUYING ANY SORT OF A RELEASE OR LICENSE OR ANYTHING ELSE THAT WOULD
HELP OUT THESE REPLACEMENT TOP PEOPLE  ...  ."    FN13  THE DISTRICT
COURT TERMED THE AGREEMENT A "FUTURE LICENSE" IN THIS RESPECT, AND AB'S
COUNSEL ON MORE THAN ONE OCCASION REFERRED TO IT AS A "RELEASE OR
LICENSE."  IT IS DIFFICULT TO SEE WHY IT SHOULD NOT BE CONSIDERED A
LICENSE INSOFAR AS IT RELATED TO FUTURE ACTIVITY, SEE DE FOREST RADIO
TEL. CO. V. UNITED STATES, 273 U.S. 236, 241, ALTHOUGH OF COURSE ITS
PROPER LABEL IS LESS IMPORTANT THAN ITS CLEAR EFFECT OF AUTHORIZING
FORD'S PURCHASERS TO MAKE FULL USE OF THE PATENTED STRUCTURES. 

FN14  IN BIRDSELL THE COURT RELIED ON THE FACT THAT ONLY NOMINAL
DAMAGES HAD BEEN AWARDED IN THE PRIOR SUIT.  112 U.S., AT 489.  IN
UNION TOOL THE COURT'S STATEMENT THAT THE PATENTEE HAD NOT "RECEIVED
ANY COMPENSATION WHATEVER FOR THE INFRINGEMENT BY USE OF THESE
MACHINES," 259 U.S., AT 113, WAS APPARENTLY BASED ON THE FACT THAT THE
DAMAGES AND PROFITS AWARDED BY THE PRIOR JUDGMENT HAD NOT YET BEEN
CALCULATED OR PAID.  SEE BRIEF FOR RESPONDENT, AT 37, AND THE OPINION
OF THE COURT OF APPEALS, 265 F. 669, 673 (C.A. 9TH CIR. 1920).  COMPARE
BUERK V. IMHAEUSER, 4 FED. CAS. 597 (NO. 2,108)(C.C.S.D.N.Y. 1876), 4
FED. CAS. 594 (NO. 2,107)(C.C.S.D.N.Y. 1876). 

FN15  THE DATE OF THE SALE BY ARO RATHER THAN THE DATE OF THE
INSTALLATION IN THE CAR BY THE PURCHASER FROM ARO SHOULD CONTROL, SINCE
IT IS THE ACT OF SALE THAT IS MADE CONTRIBUTORY INFRINGEMENT BY SEC.
271(C). 

FN16 SINCE ARO'S INFRINGEMENT THUS TERMINATED IN 1955, IT WOULD SEEM
THAT THE PERPETUAL INJUNCTION INCLUDED IN THE INTERLOCUTORY JUDGMENT
WOULD NO LONGER BE A PROPER ELEMENT OF RELIEF. 

FN17  THIS PART OF THE OPINION, LIKE PART I, EXPRESSES THE VIEWS OF
JUSTICES HARLAN, BRENNAN, STEWART, WHITE AND GOLDBERG. 

FN18  THIS PART OF THE OPINION EXPRESSES THE VIEWS OF JUSTICES
BRENNAN, STEWART, WHITE, AND GOLDBERG.  MR. JUSTICE HARLAN CONSIDERS
THAT THE MATTERS HERE DEALT WITH ARE NOT RIPE FOR DECISION AND SHOULD
BE LEFT FOR DETERMINATION IN THE FUTURE COURSE OF THIS LITIGATION. 

FN19  AB'S COUNSEL ASSERTED ON DEPOSITION:  "I BELIEVE WE WOULD HAVE
THE RIGHT TO ARRIVE AT ROYALTY AND OTHERWISE CONSIDER AS PATENTED THE
REPLACEMENT TOP  ...  ."  WHEN ASKED BY THE DISTRICT COURT AT A HEARING
CONCERNING A JUDGMENT BOND HOW MUCH HE EXPECTED TO RECOVER, CTR'S
COUNSEL REPLIED:  "I SUPPOSE A REASONABLE ROYALTY WOULD BE 5 PER CENT."
CONSIDERABLE EVIDENCE WAS INTRODUCED BEFORE THE MASTER AS TO ARO'S
INCOME FROM INFRINGING SALES AND AS TO ROYALTY RATES FIXED IN LICENSES
GRANTED BY CTR OR AB TO OTHER REPLACEMENT-FABRIC SUPPLIERS.  SEE ALSO
THE STATEMENT OF AB'S COUNSEL QUOTED IN NOTE 12, SUPRA, AND THE
STATEMENT IN CTR'S BRIEF QUOTED SUPRA, AT 496. 

FN20  IN THE 1952 CODIFICATION, SECS. 67 AND 70 OF THE 1946 CODE WERE
CONSOLIDATED IN THE PRESENT SEC. 284.  THE STATED PURPOSE WAS MERELY
"REORGANIZATION IN LANGUAGE TO CLARIFY THE STATEMENT OF THE STATUTES." 
H.R. REP. NO. 1923, 82D CONG., 2D SESS., AT 10, 29. 

FN21  SEE ALSO HEARING BEFORE THE HOUSE COMMITTEE ON PATENTS, 79TH
CONG., 2D SESS., ON H.R. 5231 (SUBSEQUENTLY AMENDED, REINTRODUCED, AND
REPORTED AS H.R. 5311), JAN. 29, 1946, E.G., PP. 2-3. 

FN22  NO ANSWER WAS GIVEN BY AB'S COUNSEL TO THE QUESTION HOW THE
$73,000 FIGURE HAD BEEN ARRIVED AT, EXCEPT TO SAY THAT IT WOULD HAVE
BEEN LARGER IF IT HAD BEEN INTENDED TO RELEASE CONTRIBUTORY INFRINGERS
AS WELL.  BUT THE FACT THAT PARAGRAPH 3 OF THE AGREEMENT PROVIDES FOR A
5% ROYALTY ON REPLACEMENT TOPS, AS THE GENERAL MOTORS LICENSE AGREEMENT
ALSO APPARENTLY DID, SUGGESTS THAT THE EFFECTIVE ROYALTY RECEIVED FROM
FORD FOR THE RIGHT TO MAKE AND SELL THE PATENTED TOP-STRUCTURES WAS THE
SAME AS THAT RECEIVED FROM GENERAL MOTORS. 

FN23  SEE ALSO THOMSON-HOUSTON ELEC.  CO. V. OHIO BRASS CO., SUPRA,
80 F. 712, 721; REP.  ATTY. GEN. NAT. COMM. TO STUDY THE ANTITRUST
LAWS, SUPRA, AT 252; RICH, 21 GEO. WASH. L. REV.  521, 542 (1953);
EASTMAN, 48 MICH. L. REV. 183, 187 (1949); NOTE, 66 YALE L.J. 132
(1956). 

FN24  REED ROLLER BIT CO. V. HUGHES TOOL CO., 12 F.2D 207, 209, 210
(C.A. 5TH CIR. 1926). 

FN25  NATIONAL BRAKE & ELEC.  CO. V. CHRISTENSEN, 38 F.2D 721 (C.A.
7TH CIR. 1930); GRAHAM V. MASON, 10 FED. CAS. 930 (NO. 5,672)(C.C.D.
MASS. 1872). 

FN26  E.G., CONMAR PRODUCTS CORP. V. TIBONY, 63 F. SUPP. 372, 374
(D.C.E.D.N.Y. 1945). 

MR. JUSTICE WHITE, CONCURRING. 

I AGREE WITH MY BROTHER BLACK THAT THE PLAIN LANGUAGE AND LEGISLATIVE
HISTORY OF SEC. 271(C) REQUIRE THE ALLEGED CONTRIBUTORY INFRINGER TO
HAVE KNOWLEDGE OF THE INFRINGING NATURE OF THE COMBINATION TO WHICH HE
IS CONTRIBUTING A PART.  OTHERWISE I SHARE MR. JUSTICE BRENNAN'S VIEW
OF THIS CASE. 

CASE OF THE DIRECT INFRINGER WHO MAKES OR USES THE PATENTED COMBINATION
AND SEC. 287 DOES NOT SAY THAT ONE WHO MAKES OR USES WITHOUT KNOWLEDGE
IS NOT INFRINGING.  IT SPECIFIES THAT THE "INFRINGER" IS NOT LIABLE FOR
DAMAGES UNTIL NOTICE OF THE "INFRINGEMENT."  IN ANY EVENT, SEC. 287, AS
MY BROTHER BRENNAN SAYS, IS NOT APPLICABLE HERE UNDER WINE RY.
APPLIANCE CO. V. ENTERPRISE RY. EQUIPMENT CO., 297 U.S. 387, BECAUSE
THE PATENTEE HAS NOT MANUFACTURED THE ARTICLE AND HAS HAD NO
OPPORTUNITY TO MARK IT IN ACCORDANCE WITH SEC. 287. 

HERE THE PATENTEE GAVE NOTICE TO ARO AND I THINK IT IS LIABLE ON FORD
TOPS SOLD BY IT AFTER THAT DATE, BUT NOT BEFORE, UNLESS IT HAD
KNOWLEDGE FROM OTHER SOURCES.  AFTER THE NOTICE DATE, THE KNOWLEDGE
REQUIREMENT OF SEC. 271(C) WAS SATISFIED AND THE USE OF FORD CARS BY
THE OWNERS THEREOF WAS DIRECT INFRINGEMENT PROVIDING THE NECESSARY
PREDICATE FOR CONTRIBUTORY INFRINGEMENT UNDER SEC. 271(C). 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE CLARK JOIN, DISSENTING. 

FOR A NUMBER OF REASONS I WOULD REVERSE THE JUDGMENT, AND REINSTATE
THE ORDER OF DISMISSAL OF THE DISTRICT COURT. 

                   I. 

WITH REGRET I FIND IT NECESSARY TO DISAGREE WITH THE INFERENCES THE
COURT DRAWS FROM THE PAST HISTORY OF THIS CASE.  RESPONDENT CONVERTIBLE
HELD EXCLUSIVE RIGHTS FOR MASSACHUSETTS IN A COMBINATION PATENT ON A
CONVERTIBLE AUTOMOBILE TOP, THE COMBINATION CONSISTING OF WOOD OR METAL
SUPPORTS, A FABRIC COVER, AND A MECHANISM TO SEAL THE FABRIC AGAINST
THE SIDE OF THE AUTOMOBILE IN ORDER TO KEEP OUT WEATHER.  NONE OF THE
ELEMENTS OF THE COMBINATION WAS PATENTED OR PATENTABLE.  DURING THE
YEARS IN QUESTION GENERAL MOTORS CORPORATION AND THE FORD MOTOR COMPANY
MANUFACTURED AUTOMOBILES WITH TOPS LIKE THOSE DESCRIBED IN THE PATENT. 
GENERAL MOTORS HAD A LICENSE FROM CONVERTIBLE AUTHORIZING IT TO DO SO.
FORD DID NOT.  PETITIONER ARO MANUFACTURED AND SOLD FABRIC REPLACEMENT
COVERS WHICH WERE PURCHASED BY OWNERS OF BOTH GENERAL MOTORS AND FORD
CARS WHEN THE COVERS ORIGINALLY INSTALLED ON THE CARS WORE OUT. 
CONVERTIBLE SETTLED A CLAIM IT MADE AGAINST FORD FOR DIRECT
INFRINGEMENT, AND DID NOT SUE FORD DEALERS OR FORD CAR OWNERS.  IT
MAINTAINED ALSO THAT THE INDIVIDUAL GENERAL MOTORS AND FORD CAR OWNERS
WHO REPLACED THEIR WORN-OUT COVERS WITH ARO REPLACEMENT COVERS BY DOING
SO DIRECTLY INFRINGED THE COMBINATION PATENT.  CONVERTIBLE DID NOT SUE
THE INDIVIDUAL CAR OWNERS WHO PATCHED OR REPLACED THE WORN-OUT FABRIC,
BUT IT DID BRING THIS SUIT AGAINST ARO, CHARGING THAT ARO BY SELLING
THE REPLACEMENT FABRIC THEREBY HELPED THE INDIVIDUAL CAR OWNERS
INFRINGE AND SO BECAME LIABLE AS A CONTRIBUTORY INFRINGER UNDER 35
U.S.C. SEC. 271(C).  (FN1)  THE DISTRICT COURT HELD THAT THE PATENT WAS
VALID AND THAT ARO HAD BEEN GUILTY OF CONTRIBUTORY INFRINGEMENT; IT
ENJOINED ARO FROM FURTHER ALLEGED INFRINGEMENTS AND ORDERED AN
ACCOUNTING TO DETERMINE THE DAMAGES DUE CONVERTIBLE FROM ARO'S SALES OF
REPLACEMENT FABRICS TO OWNERS BOTH OF GENERAL MOTORS AND OF FORD CARS. 
119 U.S.P.Q. 122.  THE COURT OF APPEALS AFFIRMED THE JUDGMENT, 270 F.2D
200, AND WE GRANTED CERTIORARI TO REVIEW IT. WE REVERSED THE JUDGMENT. 
ARO MFG. CO. V. CONVERTIBLE TOP REPLACEMENT CO., 365 U.S. 336.  WE
DENIED A PETITION FOR REHEARING OR ALTERNATIVE MOTION FOR AMENDMENT OR
CLARIFICATION IN WHICH CONVERTIBLE ARGUED THAT OUR REVERSAL APPLIED
ONLY TO REPLACEMENTS OF GENERAL MOTORS, AND NOT FORD, CARS.  365 U.S.
890. 

WHEN THE DISTRICT COURT RECEIVED THE MANDATE OF THIS COURT, IT
ENTERED JUDGMENT DISMISSING THE COMPLAINT ON THE GROUND THAT THIS
COURT'S DECISION AND MANDATE HAD REVERSED THE PRIOR JUDGMENT IN ITS
ENTIRETY.  BUT CONVERTIBLE APPEALED THE DISMISSAL TO THE COURT OF
APPEALS.  THAT COURT SAID: 

"THE PUZZLING QUESTION IS WHETHER THE SUPREME COURT IN REVERSING THIS
COURT INTENDED TO REVERSE IN TOTO OR ONLY TO REVERSE INSOFAR AS
REPLACEMENT TOPS FOR GENERAL MOTORS CARS WERE CONCERNED."  312 F.2D 52,
56 (C.A. 1ST CIR.). 

THEREUPON THE COURT OF APPEALS, REVERSING THE DISTRICT COURT'S ACTION
TAKEN IN OBEDIENCE TO THIS COURT'S MANDATE, HELD THAT THIS COURT WHEN
IT SAID "REVERSED" AT THE END OF ITS OPINION HAD MEANT TO REVERSE, NOT
THE ENTIRE JUDGMENT, BUT ONLY THAT PART OF THE JUDGMENT ENJOINING ARO
FROM SELLING REPLACEMENT FABRICS FOR GENERAL MOTORS CARS, WHICH WERE
MADE UNDER LICENSES, AND ORDERING AN ACCOUNTING FOR SUCH SALES IN THE
PAST; THE COURT OF APPEALS SAID THAT THIS COURT HAD IN EFFECT AFFIRMED
THE EARLIER JUDGMENT INSOFAR AS THAT JUDGMENT CONCERNED REPLACEMENTS
FOR FORD FABRICS.  THIS COURT TODAY, IN AFFIRMING THE COURT OF APPEALS'
JUDGMENT, SAYS: 

"OUR DECISION DEALT, HOWEVER, ONLY WITH THE GENERAL MOTORS AND NOT
WITH THE FORD CARS."  ANTE, P. 479. 

THE COURT'S STATEMENT OF WHAT WE DID IS, I THINK, COMPLETELY REFUTED
BY THE RECORD IN THIS CASE. 

THE OPINION OF THE COURT WAS DELIVERED BY MR. JUSTICE WHITTAKER. 
THAT OPINION WAS JOINED BY THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR.
JUSTICE DOUGLAS, AND MR. JUSTICE CLARK.  THE GROUNDS FOR THE COURT'S
OPINION, AS I SHALL POINT OUT, APPLIED ALIKE TO THE REPAIR OF FORD CARS
WHICH HAD ORIGINALLY BEEN SOLD BY THE MANUFACTURER WITHOUT A LICENSE
FROM CONVERTIBLE, AND TO GENERAL MOTORS CARS THAT HAD BEEN SOLD WITH
SUCH A LICENSE.  MR. JUSTICE BRENNAN, HOWEVER, DISSENTED FROM THE
GROUNDS OF THE COURT'S OPINION ALTHOUGH HE CONCURRED IN THE JUDGMENT OF
REVERSAL "EXCEPT, HOWEVER, AS TO THE RELIEF GRANTED RESPONDENT IN
RESPECT OF THE REPLACEMENTS MADE ON FORD CARS BEFORE JULY 21, 1955." 
365 U.S., AT 368.  MR. JUSTICE HARLAN, JOINED BY JUSTICES FRANKFURTER
AND STEWART, DISSENTED FROM THE COURT'S OPINION AND FROM ITS JUDGMENT
IN ITS ENTIRETY.  365 U.S., AT 369.  HIS GROUNDS FOR DISSENTING FROM
THE COURT'S OPINION WERE SUBSTANTIALLY THE SAME AS THOSE OF MR. JUSTICE
BRENNAN.  (FN2)  THE DIFFERENCE BETWEEN MR. JUSTICE HARLAN'S DISSENT
AND MR. JUSTICE BRENNAN'S OPINION CONCURRING IN THE COURT'S JUDGMENT
"EXCEPT  ...  AS TO THE RELIEF GRANTED  ...  IN RESPECT OF THE
REPLACEMENTS MADE ON FORD CARS" WAS A VERY MINOR ONE:  BOTH AGREED,
CONTRARY TO WHAT THE COURT DECIDED, THAT A PERSON COULD BE HELD LIABLE
FOR CONTRIBUTORY INFRINGEMENT OF A COMBINATION PATENT, EVEN THOUGH HE
FURNISHED A REPLACEMENT FOR ONLY A PART OF THE COMBINATION, IF THE PART
REPLACED WAS IMPORTANT ENOUGH FOR THE SUBSTITUTION TO AMOUNT TO
"RECONSTRUCTION" RATHER THAN MERELY "REPAIR" OF THE DEVICE; MR. JUSTICE
BRENNAN, HOWEVER, BELIEVED THAT THE QUESTION WHETHER THERE HAD BEEN A
"RECONSTRUCTION" WAS FOR THIS COURT TO DECIDE AS A MATTER OF LAW AND
THAT THERE HAD NOT BEEN A "RECONSTRUCTION" HERE, WHILE MR. JUSTICE
HARLAN SAID THAT THE TRIAL COURT'S FINDINGS THAT THERE HAD BEEN A
"RECONSTRUCTION" WERE DECISIVE. 

THE DIFFERENCE IN THE APPROACH OF JUSTICES HARLAN AND BRENNAN FROM
THAT OF MR. JUSTICE WHITTAKER, WRITING FOR THE COURT, IS RESPONSIBLE,
AS I READ THE RECORD, FOR THE FACT THAT WHILE THE COURT REVERSED THE
FORMER JUDGMENT IN ITS ENTIRETY, MR. JUSTICE BRENNAN WAS WILLING TO
REVERSE IT ONLY AS TO REPLACEMENT FABRICS SOLD FOR GENERAL MOTORS
CARS.  MR. JUSTICE BRENNAN BELIEVED THAT SINCE THE LICENSED GENERAL
MOTORS CARS AS BUILT DID NOT DIRECTLY INFRINGE THE PATENT AND ARO
CONTRIBUTED TO WHAT DID NOT AMOUNT TO A "RECONSTRUCTION" OF THEM, ARO
AS TO THEM WAS NOT A CONTRIBUTORY INFRINGER; THE FORD CARS, HOWEVER,
WERE BUILT BY THE MANUFACTURER WITHOUT A LICENSE FROM CONVERTIBLE, SO
FORD AND THE PURCHASERS WHO USED ITS CARS WERE ALLEGEDLY DIRECT
INFRINGERS, AND SINCE ARO HELPED FORD OWNERS CONTINUE TO USE INFRINGING
TOPS IT WAS A CONTRIBUTORY INFRINGER EVEN THOUGH THE REPLACEMENT COVERS
DID NOT "RECONSTRUCT" THE TOPS.  THE COURT, HOWEVER, IN MR. JUSTICE
WHITTAKER'S OPINION, REJECTED COMPLETELY THE NOTION THAT THERE COULD
EVER BE WITHIN THE MEANING OF SEC. 271(C) ANY CONTRIBUTORY INFRINGEMENT
- WHETHER BASED ON A FINDING OF "RECONSTRUCTION" OR ON SOME OTHER
THEORY - IN A CASE LIKE THIS ONE, WHERE THE PATENT WAS MERELY A
COMBINATION PATENT AND THE PARTY WHICH WAS SUED FOR INFRINGEMENT HAD
SOLD REPLACEMENTS FOR ONLY A PART OF THE COMBINATION.  THE COURT'S
OPINION RELIED ON THE FACT THAT THE FABRIC ARO USED WAS NOT ITSELF
PATENTED, THAT CONVERTIBLE HAD MADE NO CLAIM TO INVENTION BASED ON THE
FABRIC OR ITS SHAPE, PATTERN OR DESIGN, AND THAT A COMBINATION PATENT
GAVE ITS OWNER A MONOPOLY ON NOTHING BUT THE COMBINATION AS A WHOLE,
SINCE, MR. JUSTICE WHITTAKER SAID, "IF ANYTHING IS SETTLED IN THE
PATENT LAW, IT IS THAT THE COMBINATION PATENT COVERS ONLY THE TOTALITY
OF THE ELEMENTS IN THE CLAIM AND THAT NO ELEMENT, SEPARATELY VIEWED, IS
WITHIN THE GRANT."  365 U.S., AT 344.  THE EFFECT OF THE COURT'S
HOLDING WAS THAT SINCE THE TOP FABRIC WAS NOT ITSELF PATENTED,
CONVERTIBLE COULD NOT EXTEND ITS MONOPOLY PRIVILEGES REGARDING THE
COMBINATION AS A WHOLE TO THE UNPATENTED FABRIC COVER PART OF THE TOP. 
OBVIOUSLY, THIS HOLDING OF THE COURT AND THE REASONS MR. JUSTICE
WHITTAKER GAVE FOR IT DID NOT DEPEND ON WHETHER THE FABRIC WAS USED ON
A FORD OR ON A GENERAL MOTORS CAR.    MR. JUSTICE WHITTAKER AND THE
FOUR MEMBERS OF THE COURT WHO JOINED HIM WERE, OF COURSE, FAMILIAR WITH
THE ALLEGED DISTINCTION WHICH CONVERTIBLE TRIED TO DRAW BETWEEN ITS
RIGHTS WITH REFERENCE TO THE GENERAL MOTORS LICENSED CARS ON THE ONE
HAND AND THE FORD UNLICENSED CARS ON THE OTHER.  THE DISTRICT JUDGE IN
HIS OPINION DREW THE DISTINCTION, (FN3) CONVERTIBLE'S BRIEF IN THIS
COURT DREW THE DISTINCTION, (FN4) AND MR. JUSTICE BRENNAN DREW THE
DISTINCTION IN HIS OPINION BY CONCURRING IN THE COURT'S JUDGMENT WITH
RESPECT TO REPLACEMENT FABRICS FOR GENERAL MOTORS CARS BUT DISSENTING
WITH RESPECT TO THOSE FOR FORD CARS.  IT IS APPARENT, THEREFORE, THAT
TO THE MAJORITY WHO JOINED IN MR. JUSTICE WHITTAKER'S OPINION THE
ASSERTED DISTINCTION WAS SIMPLY IRRELEVANT, SINCE CONVERTIBLE AS THE
HOLDER OF A COMBINATION PATENT COULD UNDER NO CIRCUMSTANCES PREVENT
OTHERS FROM MAKING AND SUPPLYING UNPATENTED AND UNPATENTABLE
REPLACEMENT PARTS FOR ANY ELEMENT OF THE COMBINATION.  THE COURT'S
OPINION BY MR. JUSTICE WHITTAKER MADE IT CRYSTAL-CLEAR THAT THE COURT
WAS HOLDING THAT WITH RESPECT TO COMBINATION PATENTS LIKE THE ONE
HERE: 

"NO ELEMENT, NOT ITSELF SEPARATELY PATENTED, THAT CONSTITUTES ONE OF
THE ELEMENTS OF A COMBINATION PATENT IS ENTITLED TO PATENT MONOPOLY,
HOWEVER ESSENTIAL IT MAY BE TO THE PATENTED COMBINATION AND NO MATTER
HOW COSTLY OR DIFFICULT REPLACEMENT MAY BE."  365 U.S., AT 345. 

FINALLY, THE COURT DID NOT CONCLUDE ITS OPINION WITH THE WORDS
"REVERSED IN PART AND AFFIRMED IN PART," AS IT WOULD HAVE DONE IF LIKE
MR. JUSTICE BRENNAN IT HAD ACCEPTED CONVERTIBLE'S ASSERTED
DISTINCTION.  THE ORDER IN THE OPINION BY MR. JUSTICE WHITTAKER WAS
SIMPLY, "REVERSED," WHICH MEANT "REVERSED," NOT "REVERSED IN PART AND
AFFIRMED IN PART." 

IF ALL THIS COULD HAVE LEFT ANY DOUBT THAT THE COURT REVERSED THE
JUDGMENT OF THE COURT OF APPEALS IN ITS ENTIRETY RATHER THAN IN PART
ONLY, THAT DOUBT WOULD CERTAINLY HAVE BEEN REMOVED BY THE ACTION TAKEN
ON CONVERTIBLE'S PETITION FOR REHEARING OR ALTERNATIVE MOTION FOR
AMENDMENT OR CLARIFICATION OF THE COURT'S JUDGMENT.  THIS MOTION
SPECIFICALLY POINTED OUT THE ALLEGED DISTINCTION BETWEEN CONVERTIBLE'S
RIGHTS WITH RESPECT TO ARO'S REPLACEMENT FABRICS FOR THE TWO KINDS OF
CARS.  THE COURT DENIED THE MOTION AND THE PETITION FOR REHEARING, 365
U.S. 890, AND IN SO DOING REJECTED PRECISELY THE SAME ARGUMENT (FN5)
WHICH TODAY'S COURT IS NOW ACCEPTING.  SINCE THE MOTION AND PETITION
FOR REHEARING WERE REJECTED, FIVE JUSTICES MUST HAVE FOUND
CONVERTIBLE'S ARGUMENTS WITHOUT MERIT.  AT THAT TIME, APRIL 17, 1961,
MR. JUSTICE WHITTAKER WAS STILL A MEMBER OF THE COURT.  IT CAN BE
ASSUMED THAT THERE WERE FOUR VOTES FOR REHEARING - THOSE OF MR. JUSTICE
BRENNAN, WHO HAD NOT JOINED THE COURT'S JUDGMENT WITH REFERENCE TO THE
FABRIC REPLACEMENTS FOR FORD CARS, AND OF MR. JUSTICE HARLAN, MR.
JUSTICE FRANKFURTER, AND MR. JUSTICE STEWART, WHO HAD DISSENTED FROM
THE COURT'S OPINION IN ITS ENTIRETY.  FOUR VOTES COULD NOT GRANT THE
MOTION OR THE PETITION FOR REHEARING, BUT FIVE VOTES - THOSE OF MR.
JUSTICE HARLAN, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, MR. JUSTICE
WHITE, AND MR. JUSTICE GOLDBERG - NOW REVERSE THE EARLIER RULINGS OF
THIS COURT.  THIS IS, OF COURSE, PERMISSIBLE, BUT THERE IS NO REASON
WHY TODAY'S ACTION IN DEPARTING FROM THE PRIOR HOLDING SHOULD ALSO BE
POINTED TO AS, IN THE WORDS THE COURT OF APPEALS USED TO DESCRIBE OUR
PREVIOUS OPINION, A "PUZZLING QUESTION."  COMPARE LEGAL TENDER CASES,
12 WALL.  457, OVERRULING HEPBURN V. GRISWOLD, 8 WALL.  603.  AS TO THE
MERITS OF TODAY'S DEPARTURE FROM OUR PRIOR HOLDING, I THINK THAT THE
OLD MAJORITY WAS RIGHT AND THE NEW MAJORITY IS WRONG, FOR ALL OF THE
REASONS SET OUT IN MR. JUSTICE WHITTAKER'S OPINION FOR THE COURT AND IN
MY CONCURRING OPINION, 365 U.S., AT 346. 

       II. 

THE COURT NOW HOLDS THAT ALTHOUGH THE FABRIC USED ON THESE CAR TOPS
WAS UNPATENTED AND CLEARLY UNPATENTABLE, THE COMBINATION-PATENTEE
NEVERTHELESS IS FREE TO EXPAND ITS MONOPOLY BEYOND THE PATENT'S
BOUNDARIES THROUGH PERVENTING THE SALES OF THAT SINGLE ELEMENT, THE
UNPATENTED FABRIC.  THE NEW MAJORITY RELIES LARGELY ON 35 U.S.C. SEC.
271(C), AS DID MR. JUSTICE HARLAN, MR. JUSTICE FRANKFURTER, MR. JUSTICE
STEWART AND MR. JUSTICE BRENNAN THE FIRST TIME THIS CASE WAS HERE.  AS
I SAID, I AM SATISFIED WITH THE ANSWERS GIVEN TO THE NEW MAJORITY'S
INTERPRETATION OF SEC. 271(C) BY WHAT WAS SAID IN MR. JUSTICE
WHITTAKER'S OPINION FOR THE COURT AND IN MY CONCURRENCE.  BUT SINCE THE
NEW MAJORITY IS NOW GIVING CONVERTIBLE A LEGAL MONOPOLY OVER THE
UNPATENTED FABRIC COVER, I FIND IT NECESSARY TO REACH THE
CONSTITUTIONAL QUESTION URGED BY ARO. 

ARTICLE I, SEC. 8 OF THE CONSTITUTION GIVES CONGRESS THE POWER TO
"PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR
LIMITED TIMES TO AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR
RESPECTIVE WRITINGS AND DISCOVERIES."  THE GRANTING OF PATENT
MONOPOLIES UNDER THIS CONSTITUTIONAL AUTHORITY REPRESENTS A VERY MINOR
EXCEPTION TO THE NATION'S TRADITIONAL POLICY OF A COMPETITIVE BUSINESS
ECONOMY, SUCH AS IS SAFEGUARDED BY THE ANTITRUST LAWS.  WHEN ARTICLES
ARE NOT PATENTABLE AND THEREFORE ARE IN THE PUBLIC DOMAIN, AS THESE
FABRIC COVERS WERE, TO GRANT THEM A LEGALLY PROTECTED MONOPOLY OFFENDS
THE CONSTITUTIONAL PLAN OF A COMPETITIVE ECONOMY FREE FROM PATENT
MONOPOLIES EXCEPT WHERE THERE ARE PATENTABLE "DISCOVERIES."  AND THE
GRANT OF A PATENT MONOPOLY TO THE FABRICS CAN NO MORE BE JUSTIFIED
CONSTITUTIONALLY BY CALLING THEIR SALE BY COMPETITORS "CONTRIBUTORY
INFRINGEMENT" THAN BY GIVING IT ANY OTHER LABEL.  CF. COMPCO CORP. V.
DAY-BRITE LIGHTING, INC., 376 U.S. 234; SEARS, ROEBUCK & CO. V. STIFFEL
CO., 376 U.S. 225. 

  III. 

THE COURT HOLDS, QUITE PROPERLY I THINK, THAT A PATENTEE CAN GET ONLY
ONE RECOVERY FOR ONE INFRINGEMENT, NO MATTER HOW MANY DIFFERENT PERSONS
TAKE PART IN THE INFRINGEMENT.  IN THIS CASE FORD, ALLEGEDLY A DIRECT
INFRINGER OF THE CONVERTIBLE PATENT, MADE A SETTLEMENT WITH CONVERTIBLE
FOR ALL PAST INFRINGEMENTS IN MAKING ITS CARS AND OBTAINED A LICENSE TO
USE THE PATENT IN THE FUTURE.  THE COURT HOLDS THAT WHILE THERE CAN BE
ONLY ONE RECOVERY FOR THE ALLEGED INFRINGEMENT WHICH FORD TURNED LOOSE
ON THE TRADE, CONVERTIBLE SHOULD NEVERTHELESS HAVE AN OPPORTUNITY TO
TRY TO PROVE, IF IT CAN, THAT IT SETTLED WITH FORD FOR LESS THAN THE
FULL AMOUNT OF ITS DAMAGES.  THIS, I THINK, BRINGS ABOUT AN UNJUST
RESULT WHICH THE PATENT LAW DOES NOT COMPEL.  HERE FORD, THE PRINCIPAL
INFRINGER, OBTAINED A COMPLETE RELEASE FROM ALL DAMAGES FOR ITS
INFRINGEMENT, AND I WOULD HOLD THAT INNOCENT PURCHASERS OF FORD CARS
CONTAINING THE INFRINGING DEVICES ARE ENTITLED TO BE RELEASED JUST AS
FORD HAS BEEN.  THERE IS CONSIDERABLE MERIT AND FAIRNESS IN THE IDEA
THAT COMPLETELY RELEASING FROM LIABILITY ONE OF SEVERAL PERSONS, ALL OF
WHOM ARE OBLIGATED TO ANOTHER, RELEASES THEM ALL.  THIS IS PARTICULARLY
SO IN THE AREA OF PATENT LAW, WHERE THE DOCTRINE OF CONTRIBUTORY
INFRINGEMENT IS RESTED ON THE BELIEF THAT A DIRECT INFRINGER MAY
SOMETIMES BE COLLECTION-PROOF, AND THAT IN SUCH A SITUATION THE
PATENTEE SHOULD BE GIVEN A CHANCE TO COLLECT ITS DAMAGES FROM A MORE
SOLVENT COMPANY WHICH KNOWINGLY AIDED THE INFRINGEMENT.  THE ORIGINAL
INFRINGEMENT, IF THERE WAS INFRINGEMENT HERE, (FN6) WAS FORD'S.
FAIRNESS WOULD REQUIRE THAT IF RECOVERY CAN BE HAD FROM THE CHIEF
WRONGDOER, HERE FORD, THE FIRST OBLIGATION OF THE INJURED PERSON IS TO
TRY TO HOLD FORD COMPLETELY RESPONSIBLE.  THIS SHOULD BE PARTICULARLY
TRUE IN INSTANCES LIKE THIS, WHERE ONE COMPANY INFRINGES A PATENT AND
SELLS GOODS WHICH ENTER INTO THE CHANNELS OF TRADE THROUGHOUT THE
NATION, THEREBY SUBJECTING AN UNTOLD NUMBER OF INNOCENT DEALERS, FUTURE
PURCHASERS, AND EVEN REPAIRMEN TO DAMAGES.  THE STATUTORY RIGHT TO SUE
FOR INFRINGEMENT - INVOLVING TREBLE DAMAGES, PUNITIVE DAMAGES,
ATTORNEY'S FEES, ETC. - SHOULD NOT BE CONSTRUED IN A WAY THAT PERMITS
UNNECESSARY HARASSMENT OF PEOPLE WHO HAVE BOUGHT THEIR GOODS IN THE
OPEN MARKET PLACE.  I CAN THINK OF NOTHING MUCH MORE UNFAIR THAN TO
VISIT THE INFRINGEMENT SINS OF A LARGE MANUFACTURER UPON THE THOUSANDS
OF ULTIMATE PURCHASERS WHO BUY OR USE ITS GOODS. 

     IV. 

FOR THE FOREGOING REASONS I BELIEVE THAT ARO SHOULD NOT BE HELD
LIABLE FOR ANY DAMAGES AT ALL AND THAT THE DISTRICT COURT SHOULD BE
ORDERED TO DISMISS THE CASE.  A MAJORITY OF THE COURT, HOWEVER, REMANDS
THE CASE FOR DETERMINATION OF WHETHER AND TO WHAT EXTENT ARO IS LIABLE
FOR DAMAGES.  WHETHER ARO IS LIABLE FOR ANY DAMAGES AT ALL DEPENDS ON
WHETHER IT AND THE PERSONS TO WHOSE INFRINGEMENT ARO IS ALLEGED TO HAVE
CONTRIBUTED CAN BE HELD LIABLE FOR DAMAGES EVEN THOUGH THEY MAY HAVE
HAD NO KNOWLEDGE THAT A PATENT COVERED THE TOP OR THAT THEIR CONDUCT
INFRINGED OR HELPED TO INFRINGE THAT PATENT.  I WOULD HOLD THAT UNLESS
THERE WAS SUCH KNOWLEDGE, THERE CAN BE NO INFRINGEMENT OR CONTRIBUTORY
INFRINGEMENT. 

(WHICH ARO IS ALLEGED TO BE), PROVIDES THAT WHOEVER SELLS A COMPONENT
OF A PATENTED COMBINATION "CONSTITUTING A MATERIAL PART OF THE
INVENTION, KNOWING THE SAME TO BE ESPECIALLY MADE OR ESPECIALLY ADAPTED
FOR USE IN AN INFRINGEMENT OF SUCH PATENT  ...  SHALL BE LIABLE AS A
CONTRIBUTORY INFRINGER."  (FN7)  USUALLY THE WORD "KNOWING" MEANS
"KNOWING," AND I AM UNWILLING TO SAY THAT IN SEC. 271(C) IT MEANS
"UNKNOWING."  THIS STATUTE TO ME MEANS RATHER PLAINLY THAT IN ORDER TO
VIOLATE IT, ONE WHO SELLS AN ARTICLE MUST KNOW THAT THE ARTICLE IS TO
BE USED "IN AN INFRINGEMENT OF SUCH PATENT" AND THAT IT IS "ESPECIALLY
MADE OR ESPECIALLY ADAPTED" FOR THAT PURPOSE.  FURTHERMORE, THE
LEGISLATIVE HISTORY OF THE STATUTE CONFIRMS THIS INTERPRETATION. 

AS ORIGINALLY DRAFTED SEC. 271(C) PROVIDED: 

"WHOEVER KNOWINGLY SELLS A COMPONENT OF A PATENTED  ...  COMBINATION
...  , ESPECIALLY MADE OR ESPECIALLY ADAPTED FOR USE IN AN INFRINGEMENT
OF SUCH PATENT  ...  SHALL BE LIABLE AS A CONTRIBUTORY INFRINGER." 
(FN8) 

SEVERAL TIMES THE HOUSE COMMITTEE CONSIDERING THE BILL WAS TOLD THAT
BECAUSE OF THE POSITION OF THE WORD "KNOWINGLY" IN THE SECTION IT WAS
NOT CLEAR EXACTLY HOW MUCH A PERSON HAD TO BE SHOWN TO HAVE KNOWN
BEFORE HE COULD BE HELD LIABLE AS A CONTRIBUTORY INFRINGER.  (FN9)
SOME WITNESSES EXPRESSED FEAR THAT THE SECTION MIGHT BE CONSTRUED TO
MEAN THAT A PERSON COULD BE HELD LIABLE FOR SELLING AN ARTICLE EVEN
THOUGH HE DID NOT KNOW THAT IT WAS ADAPTED FOR USE IN A PATENTED DEVICE
AND THAT IT WOULD BE USED IN AN INFRINGEMENT.  (FN10)  ON THE OTHER
HAND, ADVOCATES OF A BROAD LIABILITY FOR CONTRIBUTORY INFRINGEMENT SAID
THAT THERE SHOULD BE REQUIRED ONLY KNOWLEDGE THAT AN ARTICLE WAS TO BE
USED IN A PARTICULAR DEVICE - THAT A PERSON WOULD BE LIABLE AS A
CONTRIBUTORY INFRINGER EVEN IF HE DID NOT KNOW OF THE EXISTENCE OF ANY
PATENT AND OF ANY LIKELY INFRINGEMENT.  (FN11)  AFTER HEARING BOTH
SIDES THE HOUSE COMMITTEE CHANGED THE LANGUAGE OF THE BILL TO READ, AS
SEC. 271(C) NOW PROVIDES: 

"WHOEVER SELLS A COMPONENT OF A PATENTED  ...  COMBINATION  ...  ,
KNOWING THE SAME TO BE ESPECIALLY MADE OR ESPECIALLY ADAPTED FOR USE IN
AN INFRINGEMENT OF SUCH PATENT  ...  SHALL BE LIABLE AS A CONTRIBUTORY
INFRINGER."  (FN12) 

BOTH THE HOUSE AND SENATE REPORTS EXPLAINED THAT: 

"THIS LATTER PARAGRAPH IS MUCH MORE RESTRICTED THAN MANY PROPONENTS
OF CONTRIBUTORY INFRINGEMENT BELIEVE SHOULD BE THE CASE.  THE SALE OF A
COMPONENT OF A PATENTED MACHINE, ETC., MUST CONSTITUTE A MATERIAL PART
OF THE INVENTION AND MUST BE KNOWN TO BE ESPECIALLY MADE OR ESPECIALLY
ADAPTED FOR USE IN THE INFRINGEMENT BEFORE THERE CAN BE CONTRIBUTORY
INFRINGEMENT ...  ."  (FN13) 

THE HOUSE COMMITTEE THUS ATTEMPTED TO MAKE CLEAR THAT INNOCENT
PERSONS, WHO ACTED WITHOUT ANY KNOWLEDGE THAT THE GOODS THEY SOLD WERE
ADAPTED FOR USE IN THE INFRINGEMENT OF A PATENT WHICH THEY KNEW ABOUT,
COULD NOT BE HELD LIABLE AS A CONTRIBUTORY INFRINGERS.  IT IS HARD TO
BELIEVE THAT CONGRESS INTENDED TO HOLD PERSONS LIABLE FOR ACTS WHICH
THEY HAD NO REASON TO SUSPECT WERE UNLAWFUL, AND AS I HAVE POINTED OUT
THE LEGISLATIVE HISTORY SHOWS CONGRESS DID NOT.  THEREFORE I AM WHOLLY
UNWILLING TO CONSTRUE THE SECTION AS MEANING THAT ONE WHO SELLS AN
UNPATENTED AND UNPATENTABLE PIECE OF FABRIC TO BE USED TO REPAIR AN
AUTOMOBILE TOP CAN BE HELD LIABLE FOR TREBLE DAMAGES AS A CONTRIBUTORY
INFRINGER EVEN THOUGH HE HAD ABSOLUTELY NO KNOWLEDGE THAT THERE WAS A
PATENT ON THE TOP AND THAT THE TOP HAD BEEN SOLD WITHOUT A LICENSE, AND
COULD NOT, BECAUSE OF THIS LACK OF KNOWLEDGE, HAVE SOLD THE TOP
"KNOWING THE SAME TO BE ESPECIALLY MADE OR ESPECIALLY ADAPTED FOR USE
IN AN INFRINGEMENT OF SUCH PATENT." 

FURTHERMORE, TO JUSTIFY ITS RESULT THE COURT TODAY IN DEFINING
"CONTRIBUTORY INFRINGEMENT" EXPANDS THE COVERAGE OF SEC. 271(A), WHICH
DEALS WITH "DIRECT INFRINGEMENT," SO AS TO MAKE EVERY CONSUMER OR
REPAIRMAN WHO INNOCENTLY BUYS OR REPAIRS AN UNMARKED ARTICLE WHICH
INFRINGES A PATENT LIABLE FOR DAMAGES AS A DIRECT INFRINGER.  IN ORDER
FOR THERE TO BE CONTRIBUTORY INFRINGEMENT, THE COURT ADMITS, THERE MUST
BE A DIRECT INFRINGEMENT WHICH THE ALLEGED CONTRIBUTORY INFRINGER HAS
AIDED.  HERE FORD WAS A DIRECT INFRINGER, BUT ARO SOLD NOTHING TO
FORD.  AND SO, IN ORDER TO FIND A DIRECT INFRINGER WHO USED ARO
FABRICS, AND THEREBY JUSTIFY ITS RESULT, THE COURT SAYS THAT ANY
INDIVIDUAL WHO BUYS A PRODUCT SUCH AS AN AUTOMOBILE FROM AN INFRINGING
MANUFACTURER AND DEVOTES IT TO HIS PERSONAL USE IS WITHOUT MORE LIABLE
AS A DIRECT INFRINGER OF THE PATENT UNDER SEC. 271(A) - EVEN THOUGH HE
DID NOT KNOW THAT THE MANUFACTURER OF THE PRODUCT HAD INFRINGED SOME
PATENT, INDEED, EVEN THOUGH HE PERHAPS DID NOT KNOW WHAT A PATENT IS. 

THE COURT'S INTERPRETATION OF SEC. 271(A) CONCERNING THE LACK OF
NECESSITY FOR KNOWLEDGE BEFORE A PERSON CAN BE MULCTED IN DAMAGES FOR
DIRECT INFRINGEMENT IS STRANGELY INCONSISTENT WITH ANOTHER PROVISION OF
THE PATENT CODE, 35 U.S.C. SEC. 287, (FN14) WHICH STATES IN
UNEQUIVOCAL, EASILY UNDERSTOOD LANGUAGE THAT "NO DAMAGES SHALL BE
RECOVERED BY THE PATENTEE IN ANY ACTION FOR INFRINGEMENT, EXCEPT ON
PROOF THAT THE INFRINGER WAS NOTIFIED OF THE INFRINGEMENT AND CONTINUED
TO INFRINGE THEREAFTER."  YET THE COURT HERE IS HOLDING, WITH NO
SUPPORT IN ANY JUDICIAL PRECEDENT (FN15) AND CERTAINLY NONE IN COMMON
SENSE OR JUSTICE, THAT INNOCENT CONSUMERS OF PATENTED PRODUCTS AND
THOSE WHO EQUALLY INNOCENTLY DO NO MORE THAN REPAIR WORN-OUT PARTS CAN
BE SUBJECTED TO PUNITIVE OR TREBLE DAMAGES EVEN THOUGH THEY NEITHER
KNEW NOR SUSPECTED THAT ANY PATENT FORBADE THEM TO BUY, USE OR REPAIR
THOSE PRODUCTS.  IT WOULD BE ONE THING TO REQUIRE THOSE WHO SELL NEW
INVENTIONS FOR PROFIT TO CHECK THE RECORDS OF THE PATENT OFFICE.  IT IS
QUITE ANOTHER TO HOLD, AS THE COURT NOW DOES, THAT EVERY HOUSEWIFE,
PLUMBER, AND AUTO REPAIRMAN MUST DO SO. 

THE TREMENDOUS BURDEN THAT THE COURT'S CONSTRUCTION OF THE PATENT
LAWS WILL PUT ON INNOCENT BONA FIDE DEALERS IN OR PURCHASERS OF
UNPATENTED PRODUCTS (IF CONGRESS DOES NOT CHANGE THE COURT'S RULING)
CANNOT BE ACCURATELY PREDICTED.  THE NUMBER OF PATENTED APPLIANCES OF
VARIOUS KINDS IN AUTOMOBILES IS CERTAINLY NOT SMALL.  JUST A FEW OF
THOSE THAT HAVE APPEARED IN LITIGATION IN THE COURTS ARE WINDSHIELD SUN
VISORS, WHEEL ATTACHMENTS, DRIVE-SHAFT BUSHING ASSEMBLIES, AUTOMOBILE
HEATERS AND WINDSHIELD DEFROSTERS, STEERING STABILIZERS, SHOCK
ABSORBERS, PISTONS, STEERING GEAR CHECKS, STEERING WHEELS, RADIATOR
SHIELDS, CLUTCH RELEASE THRUST BEARINGS, MOUNTINGS FOR REAR-VIEW
MIRRORS, VACUUM-OPERATED GEAR-SHIFT MECHANISMS, SPARK PLUG AND COIL
CONNECTORS, WIRE SPRINGS FOR UPHOLSTERED SEAT STRUCTURES, STEERING GEAR
IDLER ARMS, WINDSHIELD WIPER BLADE ASSEMBLIES, AND OTHERS.  (FN16)
AFTER THE COURT'S OPINION IN THIS CASE IT WILL CERTAINLY BEHOOVE
PURCHASERS OF NEW OR SECOND-HAND CARS AND REPAIR SHOPS WHICH MEND THOSE
CARS TO HIRE EXPERTS, IF THEY CAN FIND THEM, IN ORDER TO TRY TO
ASCERTAIN WHETHER OR NOT ANY CAR WHICH THEY HAVE BOUGHT (MAYBE ON
CREDIT FROM A SECOND-HAND DEALER) OR ARE ASKED TO REPAIR IS A BOOBY
TRAP WAITING TO SUBJECT THEM TO SUITS FOR INFRINGEMENT BY REASON OF
SOME ONE OF THE CAR'S PATENTED APPLIANCES, THE NAME OR EXISTENCE OF
WHICH THE OWNER OF THE CAR MAY NOT EVEN SUSPECT.  AND AUTOMOBILES ARE
OF COURSE NOT THE ONLY EQUIPMENT IN WHICH ORDINARY PURCHASERS USE
PATENTED DEVICES.  PURCHASERS OF HOMES EQUIPPED WITH MODERN APPLIANCES,
AS WELL AS MILLIONS OF BUYERS OF CONSUMER GOODS IN GENERAL, MAY SOON BE
MADE UNHAPPILY AWARE OF THE BROAD SCOPE OF PATENTED MONOPOLIES AS
INTERPRETED BY THIS COURT.  ENTREPRENEURS IN THE NEW CORPORATE BUSINESS
OF SUING FOR INFRINGEMENTS (ARO CLAIMED THAT CONVERTIBLE WAS SUCH A
CORPORATION, SET UP WITH NO OTHER FUNCTION) MAY SOON BECOME AS COMMON
AS PATENTS THEMSELVES. 

NEITHER THE LANGUAGE NOR THE PURPOSE OF THE PATENT LAWS REQUIRES THAT
THEY BE CONSTRUED TO BRING ABOUT SUCH THREATS ON SO WIDE A SCALE TO THE
FREE FUNCTIONING OF OUR BUSINESS ECONOMY AND TO PURCHASERS OF PATENTED
APPLIANCES WHO ARE WHOLLY INNOCENT OF ANY INTENTION TO INFRINGE
PATENTS.  I DO NOT BELIEVE THAT IN CONSTRUING THE PATENT LAWS WE SHOULD
ATTRIBUTE TO CONGRESS THE PURPOSE OF BRINGING ABOUT SUCH UNREASONABLE,
ABSURD AND WHOLLY UNJUST RESULTS.  CF.  UNITED STATES V. AMERICAN
TRUCKING ASSNS., INC., 310 U.S. 534, 542-544; CHURCH OF THE HOLY
TRINITY V. UNITED STATES, 143 U.S. 457, 459.  I CANNOT BELIEVE THAT
CONGRESS INTENDED TO SUBJECT TO DAMAGES THOUSANDS OF ULTIMATE CONSUMERS
WHO DO NOT KNOW AND HAVE NO REASON TO SUSPECT THAT LAWSUITS ARE LURKING
IN EVERY PATENTED CONTRIVANCE CONCEALED SOMEWHERE WITHIN THE HIDDEN
RECESSES OF THEIR AUTOMOBILES. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND SEND THE
CASE BACK TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS IT. 

FN1  "WHOEVER SELLS A COMPONENT OF A PATENTED MACHINE, MANUFACTURE,
COMBINATION OR COMPOSITION, OR A MATERIAL OR APPARATUS FOR USE IN
PRACTICING A PATENTED PROCESS, CONSTITUTING A MATERIAL PART OF THE
INVENTION, KNOWING THE SAME TO BE ESPECIALLY MADE OR ESPECIALLY ADAPTED
FOR USE IN AN INFRINGEMENT OF SUCH PATENT, AND NOT A STAPLE ARTICLE OR
COMMODITY OF COMMERCE SUITABLE FOR SUBSTANTIAL NON-INFRINGING USE,
SHALL BE LIABLE AS A CONTRIBUTORY INFRINGER."  66 STAT. 811, 35 U.S.C.
SEC. 271(C). 

FN2  MR. JUSTICE BRENNAN'S OPINION SAID: 

"MY BROTHER HARLAN'S DISSENT COGENTLY STATES THE REASONS WHY I ALSO
THINK THAT IS TOO NARROW A STANDARD OF WHAT CONSTITUTES IMPERMISSIBLE
'RECONSTRUCTION.'"  365 U.S., AT 362. 

FN3  119 U.S.P.Q., AT 124. 

FN4  ONE OF CONVERTIBLE'S ARGUMENT HEADINGS READ, "THE PROPOSED RULES
OF LAW PROPOUNDED BY ARO AND THE GOVERNMENT CANNOT, UNDER THE FACTS OF
THIS CASE, EXTEND TO FORD CARS."  BRIEF FOR RESPONDENT, ARO MFG. CO. V.
CONVERTIBLE TOP REPLACEMENT CO., NO. 21, 1960 TERM, P. 73.  THE
ARGUMENT EXTENDED OVER THE NEXT SEVERAL PAGES.  ID., PP. 73-76. 

FN5  RESPONDENT'S PETITION FOR A LIMITED REHEARING:  OR, IN THE
ALTERNATIVE, MOTION FOR AMENDMENT OR CLARIFICATION OF THE COURT'S
OPINION, ARO MFG. CO. V. CONVERTIBLE TOP REPLACEMENT CO., NO. 21, 1960
TERM, PP. 1-13.  THAT THE REPLACEMENT FOR FORD CARS SHOULD BE TREATED
DIFFERENTLY FROM THOSE FOR GENERAL MOTORS CARS WAS THE ONLY ARGUMENT
MADE IN THE PETITION AND MOTION. 

FN6  FOR DISCUSSION OF THE DOUBTFUL VALIDITY OF THIS COMBINATION
PATENT, SEE MY CONCURRING OPINION IN THE FORMER DECISION OF THIS CASE,
365 U.S., AT 350-352. 

FN7  (EMPHASIS SUPPLIED.) 

FN8  SEC 231(C), H.R. 3760, 82D CONG., 1ST SESS. 

FN9  SEE, E.G., HEARINGS BEFORE SUBCOMMITTEE NO. 3, COMMITTEE ON THE
JUDICIARY, ON H.R. 3760, 82D CONG., 1ST SESS., SER.  NO. 9, P. 215. 

FN10  THE CHIEF ENGINEER AND CHAIRMAN OF THE BOARD OF A COMPANY WHICH
MANUFACTURES INSTRUMENTS TO CUSTOMERS' SPECIFICATIONS TESTIFIED: 

"WE MAKE A LARGE NUMBER OF DEVICES AND PEOPLE COME TO US IN THE
INDUSTRY FROM DISTANT POINTS  ... .  WHEN YOU REALIZE THAT THERE ARE
SOME 600,000 PATENTS AND MILLIONS OF CLAIMS INVOLVED UNDER THE PRESENT
STATUS TO THIS BILL,  ...  AND WE BECOME LIABLE AS CONTRIBUTORY
INFRINGERS, YOU CAN SEE IT WOULD BE IMPOSSIBLE FOR US TO KNOW IN ALL
CASES WHETHER WE INFRINGED OR NOT  ...  . 

"'KNOWINGLY SELLS' WILL THUS BECOME HIGHLY CONTROVERSIAL, AND IT WILL
BE CONSTRUED BY VARIOUS PATENT LAWYERS TO MEET THEIR PARTICULAR
SITUATION."  ID., AT 141-142. 

WHEN A WITNESS FROM THE ANTITRUST DIVISION OF THE JUSTICE DEPARTMENT
RAISED THE SAME OBJECTION, THE FOLLOWING EXCHANGE TOOK PLACE: 

"CONGRESSMAN BRYSON.  IT SEEMS TO ME THAT IF HE SELLS IT AT ALL HE
KNOWS HE SELLS IT. 

"MR. FUGATE OF THE JUSTICE DEPARTMENT.  HE KNOWS HE SELLS IT; BUT, AS
IN THIS CASE THAT I MENTIONED, THE CUTTER OF THE METAL PLATE ACCORDING
TO A SPECIAL PATTERN DIDN'T KNOW THAT THAT WAS TO BE USED IN AN
INFRINGING MANNER, THAT IT WAS TO BE USED IN A PATENTED COMBINATION. 

"CONGRESSMAN ROGERS.  INASMUCH AS YOU RECOGNIZE THAT THE LAW STILL
GIVES A CAUSE OF ACTION AGAINST THE CONTRIBUTOR WHO HELPS INFRINGE,
WOULD THERE BE ANY OBJECTION ON THE PART OF THE JUSTICE DEPARTMENT TO
CLARIFY THAT LAW IN DEFINITE WORDS SO THAT THERE WOULD NOT BE THE
CONFUSION THAT THE GENTLEMEN HAVE TESTIFIED TO?"  ID., AT 164-165. 

FN11  MR. GILES S. RICH OF THE NATIONAL COUNCIL OF PATENT LAW
ASSOCIATIONS STATED: 

"'KNOWINGLY SELLS A COMPONENT OF A PATENTED MACHINE' MEANS TO US THAT
YOU KNOW THAT THE COMPONENT IS GOING INTO THAT MACHINE.  YOU DON'T HAVE
TO KNOW THAT IT IS PATENTED.  YOU DON'T HAVE TO KNOW THE NUMBER OF THE
PATENT, AND YOU DON'T HAVE TO KNOW THAT THE MACHINE THAT IT IS GOING
INTO CONSTITUTES AN INFRINGEMENT.  YOU JUST KNOW ITS ULTIMATE
DESTINATION."  ID., AT 175. 

FN12  (EMPHASIS SUPPLIED.) 

FN13  H.R. REP. NO. 1923, 82D CONG., 2D SESS., P. 9; S. REP. NO.
1979, 82D CONG., 2D SESS., P. 8. 

FN14  "PATENTEES, AND PERSONS MAKING OR SELLING ANY PATENTED ARTICLE
FOR OR UNDER THEM, MAY GIVE NOTICE TO THE PUBLIC THAT THE SAME IS
PATENTED, EITHER BY FIXING THEREON THE WORD 'PATENT' OR THE
ABBREVIATION 'PAT.', TOGETHER WITH THE NUMBER OF THE PATENT, OR WHEN,
FROM THE CHARACTER OF THE ARTICLE, THIS CAN NOT BE DONE, BY FIXING TO
IT, OR TO THE PACKAGE WHEREIN ONE OR MORE OF THEM IS CONTAINED, A LABEL
CONTAINING A LIKE NOTICE.  IN THE EVENT OF FAILURE SO TO MARK, NO
DAMAGES SHALL BE RECOVERED BY THE PATENTEE IN ANY ACTION FOR
INFRINGEMENT, EXCEPT ON PROOF THAT THE INFRINGER WAS NOTIFIED OF THE
INFRINGEMENT AND CONTINUED TO INFRINGE THEREAFTER, IN WHICH EVENT
DAMAGES MAY BE RECOVERED ONLY FOR INFRINGEMENT OCCURRING AFTER SUCH
NOTICE.  FILING OF AN ACTION FOR INFRINGEMENT SHALL CONSTITUTE SUCH
NOTICE."  66 STAT. 813, 35 U.S.C. SEC. 287. 

FN15  THE CASES WHICH THE COURT CITES AS CONTRARY TO THIS VIEW
NEITHER CONSIDERED NOR DECIDED THE ISSUE WHETHER INNOCENT PERSONS
ENTIRELY UNAWARE THAT THEIR CONDUCT WOULD EITHER INFRINGE OR CONTRIBUTE
TO THE INFRINGEMENT OF A PATENT CAN BE HELD LIABLE AS DIRECT OR
CONTRIBUTORY INFRINGERS.  WINE RY. APPLIANCE CO. V. ENTERPRISE RY.
EQUIPMENT CO., 297 U.S. 387, HELD THAT A PRIMARY INFRINGER, LIKE FORD
HERE, WHICH ORDERED MANUFACTURED FOR ITSELF AND WHICH SOLD FOR PROFIT A
PATENTED DOOR-LATCH COULD NOT ESCAPE LIABILITY FOR INFRINGEMENT SIMPLY
BECAUSE A STATUTORY NOTICE OF THE PATENT WAS NOT MARKED ON THE
INFRINGING LATCHES.  THE COURT POINTED OUT THAT THE PATENTEE HAD NEVER
HAD AN OPPORTUNITY TO ATTACH A NOTICE BECAUSE THE INFRINGER WAS
PRODUCING THE LATCHES WITHOUT THE PATENTEE'S KNOWLEDGE.  THE SITUATION
IN THE CASE BEFORE US, INVOLVING AN ASSERTED LIABILITY OF CONSUMERS OF
UNMARKED GOODS, RATHER THAN A SELLER OF THOSE GOODS FOR PROFIT, DOES
NOT EVEN REMOTELY RESEMBLE THAT IN WINE.  IN NONE OF THE OTHER CASES
RELIED ON WAS SEC. 287 INTERPRETED OR EVEN CONSIDERED BY THE COURT. 

FN16  SEE 35 U.S.C.A. SEC. 271, N. 139. 
..END :

















TACOMA ASSOCIATION OF CREDIT MEN V. WASHINGTON 377 U.S. 532 


NO. 995.  DECIDED JUNE 8, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  REPORTED BELOW:  62 WASH. 2D 534, 383
P.2D 910. 


TACOMA ASSOCIATION OF CREDIT MEN V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















UNITED STATES V. ALUMINUM CO. OF AMERICA 377 U.S. 271 


NO. 204.  ARGUED APRIL 23, 1964.  - DECIDED JUNE 1, 1964.  - 214 F.
SUPP. 501, REVERSED AND REMANDED. 


THE UNITED STATES BROUGHT THIS CIVIL ANTITRUST SUIT ALLEGING A
VIOLATION OF SEC 7 OF THE CLAYTON ACT BY ALUMINUM COMPANY OF AMERICA'S
(ALCOA'S) 1959 ACQUISITION OF THE STOCK AND ASSETS OF ROME CABLE
CORPORATION (ROME), AND ASKING FOR DIVESTITURE.  ROME, WHICH
MANUFACTURED MAINLY INSULATED COPPER PRODUCTS, IN 1958 PRODUCED 0.3% OF
THE INDUSTRY PRODUCTION OF BARE ALUMINUM CONDUCTOR, 4.7% OF INSULATED
ALUMINUM CONDUCTOR AND 1.3% OF ALUMINUM CONDUCTOR (THE BROADER ALUMINUM
CONDUCTOR LINE CONSISTING OF BOTH BARE AND INSULATED CONDUCTOR). 
ALCOA, WHICH PRODUCED NO COPPER CONDUCTOR, IN 1958 PRODUCED 32.5% OF
BARE ALUMINUM CONDUCTOR, 11.6% OF INSULATED ALUMINUM CONDUCTOR, AND
27.8% OF ALUMINUM CONDUCTOR.  THESE PRODUCTS ARE USED ALMOST ENTIRELY
BY ELECTRICAL UTILITIES FOR TRANSMISSION AND DISTRIBUTION LINES -
OVERHEAD LINES IN RECENT YEARS CONSISTING OF MAINLY BARE ALUMINUM
CONDUCTOR AND INSULATED ALUMINUM CONDUCTOR; UNDERGROUND LINES
CONSISTING ESSENTIALLY OF INSULATED COPPER CONDUCTOR.  THE DISTRICT
COURT FOUND THAT BARE ALUMINUM CONDUCTOR IS A SEPARATE "LINE OF
COMMERCE," BUT HELD THAT INSULATED ALUMINUM CONDUCTOR IS NOT A LINE OF
COMMERCE DISTINCT FROM ITS COPPER COUNTERPART, AND, CONSEQUENTLY THAT
ALUMINUM CONDUCTOR GENERALLY IS NOT A SEPARATE LINE OF COMMERCE.  IT
DISMISSED THE COMPLAINT.  HELD: 

1.  ALUMINUM CONDUCTOR IS A SUBMARKET AND A SEPARATE LINE OF COMMERCE
FOR PURPOSES OF SEC 7.  PP. 274-277. 

(A)  THE DEGREE OF COMPETITION BETWEEN INSULATED ALUMINUM CONDUCTOR
(A COMPONENT OF ALUMINUM CONDUCTOR) AND INSULATED COPPER CONDUCTOR,
WHILE ENOUGH TO JUSTIFY GROUPING THEM IN A SINGLE PRODUCT MARKET, DOES
NOT PREVENT THEIR DIVISION INTO SEPARATE SUBMARKETS FOR SEC 7
PURPOSES.  BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, FOLLOWED.  P.
275. 

(B)  DIVIDING INSULATED ALUMINUM CONDUCTOR AND ITS COPPER COUNTERPART
INTO SEPARATE SUBMARKETS IS PROPER, SINCE EACH HAS DEVELOPED
DISTINCTIVE END USES AND THE PRICE DIFFERENTIAL, THE MOST IMPORTANT
PRACTICAL FACTOR IN THE TRADE, KEEPS THEM APART.  P. 276. 

(C)  BARE AND INSULATED ALUMINUM CONDUCTOR MAY BE COMBINED INTO ONE
LINE OF COMMERCE SINCE THEY ARE DISTINCT FROM THEIR COPPER COUNTERPART
IN USE AND PRICE.  PP. 276-277. 

2.  THE MERGER VIOLATED SEC 7 AND DIVESTITURE IS PROPER.  PP. 277
281. 

(A)  THE PURPOSE OF SEC 7 IS TO PROSCRIBE MERGERS WITH A PROBABLE
ANTICOMPETITIVE EFFECT.  P. 280. 

(B)  IN AN OLIGOPOLISTIC INDUSTRY WITH A FEW DOMINANT INTEGRATED
COMPANIES AND A SMALL AND DIMINISHING GROUP OF INDEPENDENTS, THE
PREVENTION OF INCREASED CONCENTRATION IS IMPORTANT.  PP. 278-281. 

(C)  ROME RANKED NINTH AMONG ALL COMPANIES AND FOURTH AMONG
INDEPENDENTS IN THE ALUMINUM CONDUCTOR MARKET AND EIGHTH AND FOURTH
RESPECTIVELY IN THE INSULATED ALUMINUM LINE.  ALCOA WAS THE LEADING
PRODUCER OF ALUMINUM CONDUCTOR AND THIRD IN THE INSULATED ALUMINUM
FIELD.  PP. 278, 280-281. 

(D)  THE ACQUISITION BY ALCOA OF ROME, THOUGH ADDING BUT 1.3% TO
ALCOA'S SHARE OF THE ALUMINUM CONDUCTOR MARKET, WOULD IN THE FRAMEWORK
OF THIS INDUSTRY, LIKELY RESULT IN A SUBSTANTIAL REDUCTION OF
COMPETITION.  P. 280. 

UNITED STATES V. ALUMINUM CO. OF AMERICA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE 1959 ACQUISITION BY THE ALUMINUM COMPANY
OF AMERICA (ALCOA) OF THE STOCK AND ASSETS OF THE ROME CABLE
CORPORATION (ROME) "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO
TEND TO CREATE A MONOPOLY" IN THE PRODUCTION AND SALE OF VARIOUS WIRE
AND CABLE PRODUCTS AND ACCESSORIES WITHIN THE MEANING OF SEC 7 OF THE
CLAYTON ACT.  (FN1)  THE UNITED STATES, CLAIMING THAT SEC 7 HAD BEEN
VIOLATED, INSTITUTED THIS CIVIL SUIT AND PRAYED FOR DIVESTITURE.  THE
DISTRICT COURT, AFTER A TRIAL, HELD THAT THERE WAS NO VIOLATION AND
DISMISSED THE COMPLAINT.  214 F. SUPP. 501.  THE CASE IS HERE ON
APPEAL, 15 U.S.C. SEC 29; AND WE NOTED PROBABLE JURISDICTION.  375 U.S.
808. 

                                              I. 

THE INITIAL QUESTION CONCERNS THE IDENTIFICATION OF THE "LINE OF
COMMERCE," AS THE TERM IS USED IN SEC 7. 

ALUMINUM WIRE AND CABLE (ALUMINUM CONDUCTOR) IS A COMPOSITE OF BARE
ALUMINUM WIRE AND CABLE (BARE ALUMINUM CONDUCTOR) AND INSULATED OR
COVERED WIRE AND CABLE (INSULATED ALUMINUM CONDUCTOR).  THESE PRODUCTS
ARE DESIGNED ALMOST EXCLUSIVELY FOR USE BY ELECTRIC UTILITIES IN
CARRYING ELECTRIC POWER FROM GENERATING PLANTS TO CONSUMERS THROUGHOUT
THE COUNTRY.  COPPER CONDUCTOR WIRE AND CABLE (COPPER CONDUCTOR) IS THE
ONLY OTHER PRODUCT UTILIZED COMMERCIALLY FOR THE SAME GENERAL PURPOSE. 
ROME PRODUCED BOTH COPPER CONDUCTOR AND ALUMINUM CONDUCTOR.  IN 1958 -
THE YEAR PRIOR TO THE MERGER - IT PRODUCED 0.3% OF TOTAL INDUSTRY
PRODUCTION OF BARE ALUMINUM CONDUCTOR, 4.7% OF INSULATED ALUMINUM
CONDUCTOR, AND 1.3% OF THE BROADER ALUMINUM CONDUCTOR LINE. 

ALCOA PRODUCED NO COPPER CONDUCTOR.  IN 1958 IT PRODUCED 32.5% OF THE
BARE ALUMINUM CONDUCTOR, 11.6% OF INSULATED ALUMINUM CONDUCTOR, AND
27.8% OF ALUMINUM CONDUCTOR. 

THESE PRODUCTS AS NOTED, ARE MOST OFTEN USED BY OPERATING ELECTRICAL
UTILITIES.  TRANSMISSION AND DISTRIBUTION LINES  (FN2)  ARE USUALLY
STRUNG ABOVE GROUND, EXCEPT IN HEAVILY CONGESTED AREAS, SUCH AS CITY
CENTERS, WHERE THEY ARE RUN UNDERGROUND.  OVERHEAD, WHERE THE LINES ARE
BARE OR NOT HEAVILY INSULATED, ALUMINUM HAS VIRTUALLY DISPLACED COPPER,
EXCEPT IN SEACOAST AREAS, AS SHOWN BY THE FOLLOWING TABLE:

               PERCENT OF ALUMINUM CONDUCTOR IN GROSS ADDITIONS TO
OVERHEAD

                                       UTILITY LINES. 

1950   1955   1959 

TRANSMISSION LINES (ALL BARE CONDUCTOR)         74.4%  91.0%  94.4% 

DISTRIBUTION LINES: 

BARE CONDUCTOR                                  35.5   64.4   79.0 

INSULATED CONDUCTOR                              6.5   51.6  77.2 

TOTAL, TRANSMISSION AND DISTRIBUTION LINES      25.0   60.9   80.1 

UNDERGROUND, WHERE THE CONDUCTOR MUST BE HEAVILY INSULATED, COPPER IS
VIRTUALLY THE ONLY CONDUCTOR USED.  IN SUM, WHILE ALUMINUM CONDUCTOR
DOMINATES THE OVERHEAD FIELD, COPPER REMAINS VIRTUALLY UNRIVALED IN ALL
OTHER CONDUCTOR APPLICATIONS. 

THE PARTIES AGREE, AND THE DISTRICT COURT FOUND, THAT BARE ALUMINUM
CONDUCTOR IS A SEPARATE LINE OF COMMERCE.  THE DISTRICT COURT, HOWEVER,
DENIED THAT STATUS TO THE BROADER ALUMINUM CONDUCTOR LINE BECAUSE IT
FOUND THAT INSULATED ALUMINUM CONDUCTOR IS NOT AN APPROPRIATE LINE OF
COMMERCE SEPARATE AND DISTINCT FROM ITS COPPER COUNTERPART.  THE COURT
SAID THE BROAD PRODUCT GROUP CANNOT RESULT IN A LINE OF COMMERCE, SINCE
A LINE OF COMMERCE CANNOT BE COMPOSED OF TWO PARTS, ONE OF WHICH
INDEPENDENTLY QUALIFIES AS A LINE OF COMMERCE AND ONE OF WHICH DOES
NOT. 

ADMITTEDLY, THERE IS COMPETITION BETWEEN INSULATED ALUMINUM CONDUCTOR
AND ITS COPPER COUNTERPART, AS THE DISTRICT COURT FOUND.  THUS IN 1959
INSULATED COPPER CONDUCTOR COMPRISED 22.8% OF THE GROSS ADDITIONS TO
INSULATED OVERHEAD DISTRIBUTION LINES.  THIS IS ENOUGH TO JUSTIFY
GROUPING ALUMINUM AND COPPER CONDUCTORS TOGETHER IN A SINGLE PRODUCT
MARKET.  YET WE CONCLUDE, CONTRARY TO THE DISTRICT COURT, THAT THAT
DEGREE OF COMPETITIVENESS DOES NOT PRECLUDE THEIR DIVISION FOR PURPOSES
OF SEC 7 INTO SEPARATE SUBMARKETS, JUST AS THE EXISTENCE OF BROAD
PRODUCT MARKETS IN BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, DID
NOT PRECLUDE LESSER SUBMARKETS.  (FN3) 

INSULATED ALUMINUM CONDUCTOR IS SO INTRINSICALLY INFERIOR TO
INSULATED COPPER CONDUCTOR THAT IN MOST APPLICATIONS IT HAS LITTLE
CONSUMER ACCEPTANCE.  BUT IN THE FIELD OF OVERHEAD DISTRIBUTION IT
ENJOYS DECISIVE ADVANTAGES - ITS SHARE OF TOTAL ANNUAL INSTALLATIONS
INCREASING FROM 6.5% IN 1950 TO 77.2% IN 1959.  IN THE FIELD OF
OVERHEAD DISTRIBUTION THE COMPETITION OF COPPER IS RAPIDLY DECREASING. 
AS THE RECORD SHOWS, UTILIZING A HIGH-COST METAL, FABRICATORS OF
INSULATED COPPER CONDUCTOR ARE POWERLESS TO ELIMINATE THE PRICE
DISADVANTAGE UNDER WHICH THEY LABOR AND THUS CAN DO LITTLE TO MAKE
THEIR PRODUCT COMPETITIVE, UNLESS THEY ENTER THE ALUMINUM FIELD.  THE
PRICE OF MOST INSULATED ALUMINUM CONDUCTORS IS INDEED ONLY 50% TO 65%
OF THE PRICE OF THEIR COPPER COUNTERPARTS; AND THE COMPARATIVE
INSTALLED COSTS ARE ALSO GENERALLY LESS.  AS THE DISTRICT COURT FOUND,
ALUMINUM AND COPPER CONDUCTOR PRICES DO NOT RESPOND TO ONE ANOTHER. 

SEPARATION OF INSULATED ALUMINUM CONDUCTOR FROM INSULATED COPPER
CONDUCTOR AND PLACING IT IN ANOTHER SUBMARKET IS, THEREFORE, PROPER. 
IT IS NOT INSEPARABLE FROM ITS COPPER EQUIVALENT THOUGH THE CLASS OF
CUSTOMERS IS THE SAME.  THE CHOICE BETWEEN COPPER AND ALUMINUM FOR
OVERHEAD DISTRIBUTION DOES NOT USUALLY TURN ON THE QUALITY OF THE
RESPECTIVE PRODUCTS, FOR EACH DOES THE JOB EQUALLY WELL.  THE VITAL
FACTORS ARE ECONOMIC CONSIDERATIONS.  IT IS SAID, HOWEVER, THAT WE
SHOULD PUT PRICE ASIDE AND BROWN SHOE, SUPRA, IS CITED AS AUTHORITY. 
THERE THE CONTENTION OF THE INDUSTRY WAS THAT THE DISTRICT COURT HAD
DELINEATED TOO BROADLY THE RELEVANT SUBMARKETS - MEN'S SHOES, WOMEN'S
SHOES, AND CHILDREN'S SHOES - AND SHOULD HAVE SUBDIVIDED THEM FURTHER. 
IT WAS ARGUED, FOR EXAMPLE, THAT MEN'S SHOES SELLING BELOW $8.99 WERE
IN A DIFFERENT PRODUCT MARKET FROM THOSE SELLING ABOVE $9.  WE DECLINED
TO MAKE PRICE, PARTICULARLY SUCH SMALL PRICE DIFFERENTIALS, THE
DETERMINATIVE FACTOR IN THAT MARKET.  A PURCHASER OF SHOES BUYS WITH AN
EYE TO HIS BUDGET, TO STYLE, AND TO QUALITY AS WELL AS TO PRICE.  BUT
HERE, WHERE INSULATED ALUMINUM CONDUCTOR PRICEWISE STANDS SO DISTINCTLY
APART, TO IGNORE PRICE IN DETERMINING THE RELEVANT LINE OF COMMERCE IS
TO IGNORE THE SINGLE, MOST IMPORTANT, PRACTICAL FACTOR IN THE
BUSINESS. 

THE COMBINATION OF BARE AND INSULATED ALUMINUM CONDUCTOR PRODUCTS
INTO ONE MARKET OR LINE OF COMMERCE SEEMS TO US PROPER.  (FN4)  BOTH
TYPES ARE USED FOR THE PURPOSE OF CONDUCTING ELECTRICITY AND ARE SOLD
TO THE SAME CUSTOMERS, ELECTRICAL UTILITIES.  WHILE THE COPPER
CONDUCTOR DOES COMPETE WITH ALUMINUM CONDUCTOR, EACH HAS DEVELOPED
DISTINCTIVE END USES - ALUMINUM AS AN OVERHEAD CONDUCTOR AND COPPER FOR
UNDERGROUND AND INDOOR WIRING, APPLICATIONS IN WHICH ALUMINUM'S
BRITTLENESS AND LARGER SIZE RENDER IT IMPRACTICAL.  AND, AS WE HAVE
SEEN, THE PRICE DIFFERENTIAL FURTHER SETS THEM APART. 

THUS, CONTRARY TO THE DISTRICT COURT, WE CONCLUDE (1) THAT ALUMINUM
CONDUCTOR AND COPPER CONDUCTOR ARE SEPARABLE FOR THE PURPOSE OF
ANALYZING THE COMPETITIVE EFFECT OF THE MERGER AND (2) THAT ALUMINUM
CONDUCTOR (BARE AND INSULATED) IS THEREFORE A SUBMARKET AND FOR
PURPOSES OF SEC 7 A "LINE OF COMMERCE." 

                                         II. 

TAKING ALUMINUM CONDUCTOR AS AN APPROPRIATE "LINE OF COMMERCE" WE
CONCLUDE THAT THE MERGER VIOLATED SEC 7. 

ALCOA IS A LEADER IN MARKETS IN WHICH ECONOMIC POWER IS HIGHLY
CONCENTRATED.  PRIOR TO THE END OF WORLD WAR II IT WAS THE SOLE
PRODUCER OF PRIMARY ALUMINUM AND THE SOLE FABRICATOR OF ALUMINUM
CONDUCTOR.  IT WAS HELD IN 1945 TO HAVE MONOPOLIZED THE ALUMINUM
INDUSTRY IN VIOLATION OF SEC 2 OF THE SHERMAN ACT.  SEE UNITED STATES
V. ALUMINUM CO., 148 F.2D 416.  RELIEF WAS DEFERRED WHILE THE UNITED
STATES DISPOSED OF ITS WARTIME ALUMINUM FACILITIES UNDER A
CONGRESSIONAL MANDATE TO ESTABLISH DOMESTIC COMPETITION IN THE ALUMINUM
INDUSTRY.  (FN5)  AS A RESULT OF THAT POLICY AND FURTHER FEDERAL
FINANCING AND ASSISTANCE, FIVE ADDITIONAL COMPANIES ENTERED THE PRIMARY
ALUMINUM FIELD SO THAT BY 1960 THE PRIMARY PRODUCERS SHOWED THE
FOLLOWING CAPACITY:

                   ALUMINUM INGOT CAPACITY EXISTING OR UNDER
CONSTRUCTION

                     AT THE END OF 1960. 

                        (SHORT TONS) 

COMPANY                        CAPACITY    % OF U.S. 

ALUMINUM COMPANY OF AMERICA               1,025,250     38.6 

REYNOLDS METALS COMPANY                     701,000     26.4 

KAISER ALUMINUM & CHEMICAL CORP.           609,500     23.0 

ORMET, INC.                                180,000      6.8 

HARVEY ALUMINUM                              75,000      2.8 

ANACONDA ALUMINUM COMPANY                    65,000      2.4 

UNITED STATES TOTAL                       2,655,750    100.0 

IN 1958 - THE YEAR PRIOR TO THE MERGER - ALCOA WAS THE LEADING
PRODUCER OF ALUMINUM CONDUCTOR, WITH 27.8% OF THE MARKET; IN BARE
ALUMINUM CONDUCTOR, IT ALSO LED THE INDUSTRY, WITH 32.5%.  ALCOA PLUS
KAISER CONTROLLED 50% OF THE ALUMINUM CONDUCTOR MARKET AND, WITH ITS
THREE LEADING COMPETITORS, MORE THAN 76%.  ONLY NINE CONCERNS
(INCLUDING ROME WITH 1.3%) ACCOUNTED FOR 95.7% OF THE OUTPUT OF
ALUMINUM CONDUCTOR.  IN THE NARROWER MARKET OF INSULATED ALUMINUM
CONDUCTOR, ALCOA WAS THIRD WITH 11.6% AND ROME WAS EIGHTH WITH 4.7%.
FIVE COMPANIES CONTROLLED 65.4% AND FOUR SMALLER ONES, INCLUDING ROME,
ADDED ANOTHER 22.8%. 

IN OTHER WORDS, THE LINE OF COMMERCE SHOWED HIGHLY CONCENTRATED
MARKETS, DOMINATED BY A FEW COMPANIES BUT SERVED ALSO BY A SMALL,
THOUGH DIMINISHING,  (FN6)  GROUP OF INDEPENDENTS.  SUCH
DECENTRALIZATION AS HAS OCCURRED RESULTED FROM THE ESTABLISHMENT OF A
FEW NEW COMPANIES THROUGH FEDERAL INTERVENTION, NOT FROM NORMAL,
COMPETITIVE DECENTRALIZING FORCES. 

THE PROPOSITION ON WHICH THE PRESENT CASE TURNS WAS STATED IN UNITED
STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 365, N. 42, AS
FOLLOWS: 

"IT IS NO ANSWER THAT, AMONG THE THREE PRESENTLY LARGEST FIRMS (FIRST
PENNSYLVANIA, PNB, AND GIRARD), THERE WILL BE NO INCREASE IN
CONCENTRATION.  IF THIS ARGUMENT WERE VALID, THEN ONCE A MARKET HAD
BECOME UNDULY CONCENTRATED, FURTHER CONCENTRATION WOULD BE LEGALLY
PRIVILEGED.  ON THE CONTRARY, IF CONCENTRATION IS ALREADY GREAT, THE
IMPORTANCE OF PREVENTING EVEN SLIGHT INCREASES IN CONCENTRATION AND SO
PRESERVING THE POSSIBILITY OF EVENTUAL DECONCENTRATION IS
CORRESPONDINGLY GREAT." 

THE COMMITTEE REPORTS ON SEC 7 SHOW, AS RESPECTS THE CELLER-KEFAUVER
AMENDMENTS IN 1950, THAT THE OBJECTIVE WAS TO PREVENT ACCRETIONS OF
POWER WHICH "ARE INDIVIDUALLY SO MINUTE AS TO MAKE IT DIFFICULT TO USE
THE SHERMAN ACT TEST AGAINST THEM."  S. REP. NO. 1775, 81ST CONG., 2D
SESS., P. 5.  AND SEE H.R. REP. NO. 1191, 81ST CONG., 1ST SESS., P. 3. 
AS THE COURT STATED IN BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294,
323: 

"CONGRESS USED THE WORDS 'MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION,' TO INDICATE THAT ITS CONCERN WAS WITH PROBABILITIES, NOT
CERTAINTIES.  STATUTES EXISTED FOR DEALING WITH CLEAR-CUT MENACES TO
COMPETITION; NO STATUTE WAS SOUGHT FOR DEALING WITH EPHEMERAL
POSSIBILITIES.  MERGERS WITH A PROBABLE ANTICOMPETITIVE EFFECT WERE TO
BE PROSCRIBED BY THIS ACT." 

SEE ALSO UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S., AT
362, AND UNITED STATES V. EL PASO NATURAL GAS CO., 376 U.S. 651, 658. 

THE ACQUISITION OF ROME ADDED, IT IS SAID, ONLY 1.3% TO ALCOA'S
CONTROL OF THE ALUMINUM CONDUCTOR MARKET.  BUT IN THIS SETTING THAT
SEEMS TO US REASONABLY LIKELY TO PRODUCE A SUBSTANTIAL LESSENING OF
COMPETITION WITHIN THE MEANING OF SEC 7.  IT IS THE BASIC PREMISE OF
THAT LAW THAT COMPETITION WILL BE MOST VITAL "WHEN THERE ARE MANY
SELLERS, NONE OF WHICH HAS ANY SIGNIFICANT MARKET SHARE."  UNITED
STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S., AT 363.  IT WOULD SEEM
THAT THE SITUATION IN THE ALUMINUM INDUSTRY MAY BE OLIGOPOLISTIC.  AS
THAT CONDITION DEVELOPS, THE GREATER IS THE LIKELIHOOD THAT PARALLEL
POLICIES OF MUTUAL ADVANTAGE, NOT COMPETITION, WILL EMERGE.  THAT
TENDENCY MAY WELL BE THWARTED BY THE PRESENCE OF SMALL BUT SIGNIFICANT
COMPETITORS.  THOUGH PERCENTAGEWISE ROME MAY HAVE SEEMED SMALL IN THE
YEAR PRIOR TO THE MERGER, IT RANKED NINTH AMONG ALL COMPANIES AND
FOURTH AMONG INDEPENDENTS IN THE ALUMINUM CONDUCTOR MARKET; AND IN THE
INSULATED ALUMINUM FIELD IT RANKED EIGHTH AND FOURTH RESPECTIVELY. 
FURTHERMORE, IN THE ALUMINUM CONDUCTOR MARKET, NO MORE THAN A DOZEN
COMPANIES COULD ACCOUNT FOR AS MUCH AS 1% OF INDUSTRY PRODUCTIONS IN
ANY ONE OF THE FIVE YEARS (1955-1959) FOR WHICH STATISTICS APPEAR IN
THE RECORD.  ROME'S COMPETITION WAS THEREFORE SUBSTANTIAL.  THE RECORD
SHOWS INDEED THAT ROME WAS AN AGGRESSIVE COMPETITOR.  IT WAS A PIONEER
IN ALUMINUM INSULATION AND DEVELOPED ONE OF THE MOST WIDELY USED
INSULATED CONDUCTORS.  ROME HAD A BROAD LINE OF HIGH-QUALITY COPPER
WIRE AND CABLE PRODUCTS IN ADDITION TO ITS ALUMINUM CONDUCTOR BUSINESS,
A SPECIAL APTITUDE AND SKILL IN INSULATION, AND AN ACTIVE AND EFFICIENT
RESEARCH AND SALES ORGANIZATION.  THE EFFECTIVENESS OF ITS MARKETING
ORGANIZATION IS SHOWN BY THE FACT THAT AFTER THE MERGER ALCOA MADE ROME
THE DISTRIBUTOR OF ITS ENTIRE CONDUCTOR LINE.  PRESERVATION OF ROME,
RATHER THAN ITS ABSORPTION BY ONE OF THE GIANTS, WILL KEEP IT "AS AN
IMPORTANT COMPETITIVE FACTOR," TO USE THE WORDS OF S. REP. NO. 1775,
SUPRA, P. 3.  ROME SEEMS TO US THE PROTOTYPE OF THE SMALL INDEPENDENT
THAT CONGRESS AIMED TO PRESERVE BY SEC 7.    THE JUDGMENT IS REVERSED
AND SINCE THERE MUST BE DIVESTITURE, THE CASE IS REMANDED TO THE
DISTRICT COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  SECTION 7 OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED BY THE
CELLER-KEFAUVER ANTIMERGER ACT, 64 STAT. 1125, 15 U.S.C. SEC 18,
PROVIDES IN RELEVANT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

FN2  TRANSMISSION LINES ARE THE "WHOLESALE" LINES WHICH CARRY CURRENT
AT HIGH VOLTAGES TO SUBSTATIONS.  DISTRIBUTION LINES ARE THE "RETAIL"
LINES WHICH CARRY CURRENT FROM THE SUBSTATIONS TO THE CONSUMERS. 

FN3  CF. UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321,
WHERE WE HELD IT PROPER TO MAKE COMMERCIAL BANKING A LINE OF COMMERCE
FOR PURPOSES OF SEC 7 EVEN THOUGH IN SOME SERVICES, E.G., THE MAKING OF
SMALL LOANS, BANKS COMPETE WITH OTHER INSTITUTIONS.  WE SAID THAT
COMMERCIAL BANKS ENJOY "SUCH COST ADVANTAGES AS TO BE INSULATED WITHIN
A BROAD RANGE FROM SUBSTITUTES FURNISHED BY OTHER INSTITUTIONS."  ID.,
AT 356.  AND SEE UNITED STATES V. BETHLEHEM STEEL CORP., 168 F. SUPP.
576, 593; REYNOLDS METALS CO. V. FEDERAL TRADE COMM'N, 309 F.2D 223,
229; UNITED STATES V. CORN PRODUCTS REFINING CO., 234 F. 964, 976. 

FN4  THE DISSENT CRITICIZES THIS GROUPING OF BARE AND INSULATED
ALUMINUM CONDUCTOR INTO ONE LINE OF COMMERCE.  THIS OVERLOOKS THE FACT
THAT THE PARTIES AGREE, AND THE DISTRICT COURT FOUND, THAT BARE
ALUMINUM CONDUCTOR AND CONDUCTOR GENERALLY (ALUMINUM AND COPPER, BARE
AND INSULATED) CONSTITUTE SEPARATE LINES OF COMMERCE.  HAVING CONCLUDED
ABOVE THAT INSULATED ALUMINUM CONDUCTOR AND INSULATED COPPER CONDUCTOR
ARE SEPARABLE EVEN THOUGH SOME INTERPRODUCT COMPETITION EXISTS, THE
CONCLUSION THAT ALUMINUM CONDUCTOR (BARE AND INSULATED) IS A LINE OF
COMMERCE IS A LOGICAL EXTENSION OF THE DISTRICT COURT'S FINDINGS. 

FN5  SEE THE SURPLUS PROPERTY ACT OF 1944, 58 STAT. 765; UNITED
STATES V. ALUMINUM CO., 91 F. SUPP. 333; UNITED STATES V. ALUMINUM CO.,
153 F. SUPP. 132.  LITIGATION WAS TERMINATED ON JUNE 28, 1957.  IBID.
TWELVE DAYS LATER, ALCOA MADE ITS FIRST ATTEMPT TO ACQUIRE ROME. 

FN6  THE ABSORPTION OF ROME BY ALCOA WAS ONE OF THE FIVE ACQUISITIONS
BY PRODUCERS OF PRIMARY ALUMINUM SINCE 1957.  IN THAT YEAR OLIN
MATHIESON (A ONE-HALF OWNER OF ORMET, INC.) ACQUIRED SOUTHERN ELECTRIC
CORPORATION, THEN THE LARGEST INDEPENDENT MANUFACTURER OF ALUMINUM
CONDUCTOR; AND KAISER ACQUIRED THE BRISTOL, RHODE ISLAND, PLANT OF THE
U.S. RUBBER COMPANY, ONE OF THE TOP 10 IN THE INSULATED ALUMINUM
FIELD.  THESE MOVES, AND THE THREAT THEY WERE THOUGHT TO POSE, WERE
SPECIFICALLY IDENTIFIED AS FACTORS INFLUENCING ALCOA'S 1959 DECISION TO
ACQUIRE ROME.  AND IT WAS PARTLY IN RESPONSE TO THE THREE PRIOR
ACQUISITIONS THAT REYNOLDS, IN 1961, ACQUIRED THE WIRE AND CABLE
FACILITIES OF JOHN A. ROEBLING'S SONS DIVISION OF THE COLORADO FUEL AND
IRON COMPANY, A SMALL FABRICATOR.  FINALLY, IN FEBRUARY 1963, TOO LATE
TO BE NOTED IN THE RECORD BELOW, ALUMINUM, LTD., OF CANADA ANNOUNCED
THE ACQUISITION OF CENTRAL CABLE CORPORATION, ONE OF THE LARGEST OF THE
INDEPENDENTS.  AS A RESULT OF THIS SERIES OF MERGERS, THERE NOW REMAIN
ONLY FOUR NONINTEGRATED FABRICATORS OF ALUMINUM CONDUCTOR WHOSE
INDIVIDUAL SHARES OF TOTAL INDUSTRY PRODUCTION (BASED ON 1959 FIGURES,
THE LATEST IN THE RECORD) AMOUNTED TO MORE THAN 1%. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE GOLDBERG
JOIN, DISSENTING. 

IN THIS CIVIL ACTION, BROUGHT UNDER SEC 7 OF THE CLAYTON ACT, AS
AMENDED, THE DISTRICT COURT FOUND THAT THE GOVERNMENT HAD FAILED TO
SUSTAIN ITS BURDEN OF PROOF AS TO BOTH THE "LINE OF COMMERCE" AND
COMPETITIVE EFFECT ISSUES.  BECAUSE I THINK THE GOVERNMENT CLEARLY
FAILED TO PROVE ITS "LINE OF COMMERCE" CLAIMS, I DISSENT FROM TODAY'S
REVERSAL OF THE TRIAL COURT'S JUDGMENT. 

A FOUR-WEEK TRIAL WAS HELD - AFTER 22 MONTHS OF EXTENSIVE PRETRIAL
DISCOVERY.  FIVE HUNDRED DOCUMENTARY EXHIBITS WERE RECEIVED IN
EVIDENCE, AND 50 WITNESSES WERE HEARD.  THE RECORD AMOUNTS TO MORE THAN
3,500 PAGES.  THE DISTRICT JUDGE WROTE A LONG AND CAREFUL OPINION,
ACCOMPANIED BY METICULOUS FINDINGS OF FACT AND THOROUGHLY REASONED
CONCLUSIONS OF LAW.  IN DETERMINING THE RELEVANT LINES OF COMMERCE
INVOLVED HERE, THE TRIAL JUDGE CONSCIENTIOUSLY APPLIED THE STANDARDS
POSTULATED BY THIS COURT IN BROWN SHOE CO. V. UNITED STATES, 370 U.S.
294, 325, AND MADE DETAILED FINDINGS OF FACT FULLY SUPPORTING HIS
DETERMINATIONS.  214 F. SUPP. 501.  THE GOVERNMENT HAS NOT CLAIMED THAT
ANY OF THESE FINDINGS OF FACT ARE CLEARLY ERRONEOUS, NOR DOES THE COURT
TODAY HOLD THEM TO BE. NEVERTHELESS, THE COURT REVERSES THE JUDGMENT. 
I FIND IT DIFFUCULT TO UNDERSTAND THE COURT'S CONCLUSION, AND
IMPOSSIBLE TO AGREE WITH IT. 

A "DETERMINATION OF THE RELEVANT MARKET IS A NECESSARY PREDICATE TO A
FINDING OF A VIOLATION OF THE CLAYTON ACT."  UNITED STATES V. E.I. DU
PONT DE NEMOURS & CO., 353 U.S. 586, 593.  IN ORDER TO PROVE THAT THIS
WAS A HORIZONTAL MERGER IN VIOLATION OF SEC 7, THE GOVERNMENT WAS
THEREFORE FACED WITH THE NECESSITY OF SHOWING SUBSTANTIAL PERCENTAGES
OF MARKET SHARES IN COMPETITIVE PRODUCTS.  (FN1)  ALCOA MANUFACTURED NO
COPPER CABLE, AND IN THE CONDUCTOR FIELD WAS CHIEFLY A PRODUCER OF BARE
ALUMINUM CABLE.  OVER 90% OF ROME'S PRODUCTION WAS IN INSULATED COPPER
PRODUCTS, AND ITS PRODUCTION OF BARE ALUMINUM CABLE WAS DE MINIMIS (.3%
OF THE MARKET SHARE).  THE DISTRICT COURT FOUND THAT CONDUCTOR WIRE AND
CABLE (BOTH BARE AND INSULATED, ALUMINUM AND COPPER), AND INSULATED
CONDUCTOR (BOTH ALUMINUM AND COPPER), WERE LINES OF COMMERCE, BUT THAT
ALCOA'S AND ROME'S MARKET SHARES IN THESE BROAD PRODUCT MARKETS WERE
INSUFFICIENT TO SUPPORT A FINDING OF REQUISITE ANTICOMPETITIVE EFFECT,
214 F. SUPP., AT 518-519 - A CONCLUSION WHICH THE GOVERNMENT DOES NOT
QUESTION HERE.  MORE SUBSTANTIAL MARKET SHARE PERCENTAGES WOULD BE
FORTHCOMING, HOWEVER, IF ALUMINUM CONDUCTORS COULD BE SET APART FROM
THE REST OF THE CONDUCTOR MANUFACTURING INDUSTRY.  ACCORDINGLY, THE
GOVERNMENT ASKED THE DISTRICT COURT TO FIND ALUMINUM CONDUCTORS IN
GENERAL, AND INSULATED ALUMINUM CONDUCTORS IN PARTICULAR, TO BE
SEPARATE LINES OF COMMERCE. 

THE DISTRICT COURT DECLINED TO MAKE SUCH A FINDING, AND FOR GOOD
REASON.  A LINE OF COMMERCE IS AN "AREA OF EFFECTIVE COMPETITION," TO
BE DETERMINED IN ACCORDANCE WITH THE PRINCIPLES LAID DOWN IN OUR PRIOR
DECISIONS.  IN BROWN SHOE, THIS COURT HELD THAT THERE ARE BROAD PRODUCT
MARKETS WITHIN WHICH THERE MAY BE "WELL-DEFINED" AND "ECONOMICALLY
SIGNIFICANT" SUBMARKETS.  370 U.S., AT 325.  THE COURT IN THAT CASE DID
NOT ATTEMPT TO FORMULATE ANY RIGID STANDARD FOR DETERMINING SUBMARKET
BOUNDARIES, BUT INDICATED THAT A BROAD-RANGING PRAGMATIC EVALUATION OF
MARKET REALITIES WAS REQUIRED.  THE FEDERAL TRIAL COURTS WERE
ADMONISHED TO EXAMINE "SUCH PRACTICAL INDICIA AS INDUSTRY OR PUBLIC
RECOGNITION OF THE SUBMARKET AS A SEPARATE ECONOMIC ENTITY, THE
PRODUCT'S PECULIAR CHARACTERISTICS AND USES, UNIQUE PRODUCTION
FACILITIES, DISTINCT CUSTOMERS, DISTINCT PRICES, SENSITIVITY TO PRICE
CHANGES, AND SPECIALIZED VENDORS."  IBID.  THESE "PRACTICAL INDICIA" TO
BE CONSIDERED IN DETERMINING SUBMARKET BOUNDARIES EXPRESS IN PRACTICAL
TERMS THE BASIC ECONOMIC CONCEPT THAT MARKETS ARE TO BE DEFINED IN
TERMS OF THE CLOSE SUBSTITUTABILITY OF EITHER PRODUCT (DEMAND) OR
PRODUCTION FACILITIES (SUPPLY), SINCE IT IS ULTIMATELY THE DEGREE OF
SUBSTITUTABILITY THAT LIMITS THE EXERCISE OF MARKET POWER, AND IT IS
ONLY BY DELIMITING THE AREA OF EFFECTIVE COMPETITION THAT AN
ACQUISITION'S COMPETITIVE EFFECTS CAN BE ASCERTAINED. 

THE DISTRICT COURT APPLIED THESE PRACTICAL INDICIA WITH METICULOUS
CARE, AND FOUND THAT THE CONDUCTOR INDUSTRY DOES NOT DIFFERENTIATE
BETWEEN COPPER AND ALUMINUM INSULATED PRODUCTS; THAT COPPER AND
ALUMINUM PRODUCTS ARE FUNCTIONALLY INTERCHANGEABLE; AND THAT THERE ARE
NO UNIQUE PRODUCTION FACILITIES, DISTINCT CUSTOMERS OR SPECIALIZED
VENDORS FOR INSULATED ALUMINUM CONDUCTOR PRODUCTS.  214 F. SUPP., AT
509.  THE TRIAL JUDGE DID NOT, AS THE COURT IMPLIES, IGNORE THE FACT
THAT THE PRICES OF COPPER AND ALUMINUM INSULATED PRODUCTS ARE GENERALLY
DISTINCT.  IT EXPLICITLY RECOGNIZED THIS FACT, BUT CONCLUDED ON CLOSER
EXAMINATION OF THE INDUSTRY THAT THIS PRICE DIFFERENCE DID NOT
FORECLOSE "ACTUAL COMPETITION."  IBID.  ACCORDINGLY, MAKING A PRACTICAL
JUDGMENT BASED ON THE BROWN SHOE SUBMARKET INDICIA, THE DISTRICT COURT
CONCLUDED THAT INSULATED ALUMINUM CONDUCTOR HAD NOT BEEN ESTABLISHED AS
A LINE OF COMMERCE.  AND SINCE THE OTHER ALLEGED LINE OF COMMERCE -
ALUMINUM CONDUCTOR GENERALLY - WAS NO MORE THAN THE SUM OF BARE AND
INSULATED ALUMINUM CONDUCTORS, THE COURT CONCLUDED THAT IT, TOO, COULD
NOT CONSTITUTE AN "AREA OF EFFECTIVE COMPETITION," SINCE AS TO THE
INSULATED SEGMENT, IMPORTANT COMPETITIVE COPPER ELEMENTS WOULD BE
IMPROPERLY AND ARBITRARILY EXCLUDED.  ID., AT 510. 

THE DISTRICT COURT, IN OTHER WORDS, DID A CAREFUL AND THOUGHTFUL
JOB.  IT APPLIED THE PROPER LAW, AND ITS REASONING WAS IMPECCABLE.  YET
THIS COURT OVERRULES ITS DECISION WITH LITTLE MORE THAN A WAVE OF THE
HAND.  ON THE BASIS OF TWO ASSERTIONS, THAT THE RECORD SHOWS
"FABRICATORS OF INSULATED COPPER CONDUCTOR ARE POWERLESS TO ELIMINATE
THE PRICE DISADVANTAGE UNDER WHICH THEY LABOR AND THUS CAN DO LITTLE TO
MAKE THEIR PRODUCT COMPETITIVE," AND THAT THE DIFFERENCE IN PRICE
BETWEEN ALUMINUM AND COPPER CONDUCTORS IS "THE SINGLE, MOST IMPORTANT,
PRACTICAL FACTOR IN THE BUSINESS," BOTH OF WHICH ARE CONTRARY TO THE
EXPLICIT FINDINGS OF THE DISTRICT COURT, THE COURT SUMMARILY CONCLUDES
THAT ALUMINUM CONDUCTOR IS "FOR PURPOSES OF SEC 7 A 'LINE OF
COMMERCE.'" 

THE DISTRICT COURT FOUND THAT NEITHER INSULATED ALUMINUM NOR
INSULATED COPPER CONDUCTOR PRODUCTS ARE RECOGNIZED AS A SEPARATE
ECONOMIC ENTITY.  INSULATED PRODUCTS ARE IDENTIFIED AND DEFINED BY THE
INDUSTRY AND REPORTED TO THE BUREAU OF THE CENSUS IN ACCORDANCE WITH
THEIR FUNCTION OR TYPE, "NOT ACCORDING TO THE METAL USED AS CONDUCTOR,"
AND MANUFACTURERS REGARD THEMSELVES SIMPLY AS INSULATORS OF WIRE AND
CABLE PRODUCTS.  MOREOVER, THERE IS COMPLETE MANUFACTURING
INTERCHANGEABILITY BETWEEN COPPER AND ALUMINUM, AND MANUFACTURERS
CONSTANTLY REVIEW THEIR PRODUCT LINES AND "SWITCH READILY FROM ONE
PRODUCT OR CONDUCTOR METAL TO ANOTHER IN ACCORDANCE WITH MARKET
CONDITIONS."  AS A RESULT, IF A FABRICATOR SHOULD FEEL HIMSELF AT A
COMPETITIVE DISADVANTAGE BECAUSE OF HIS USE OF COPPER, HE IS NOT, AS
THE COURT ASSERTS, POWERLESS TO ELIMINATE A PRICE DISADVANTAGE.  THE
SUPPLY FLEXIBILITY WHICH THIS IMPLIES EXERTS A PROFOUND RESTRAINT UPON
AN ALUMINUM CABLE MANUFACTURER'S POWER TO ACHIEVE ANY SORT OF MARKET
ADVANTAGE. 

THE COURT POINTS TO NOTHING IN THE RECORD JUSTIFYING ITS SECOND
ASSERTION THAT "PRICE  ...  IS ...  THE SINGLE, MOST IMPORTANT,
PRACTICAL FACTOR IN THE BUSINESS."  WHETHER IT IS OR NOT IS A MATTER OF
FACT, AND THE TRIAL JUDGE FOUND UPON SUBSTANTIAL EVIDENCE THAT "SINCE
COPPER AND ALUMINUM PRODUCTS ARE COMPLETELY INTERCHANGEABLE FROM A
PERFORMANCE STANDPOINT, UTILITY COMPANIES CHOOSE BETWEEN COPPER AND
ALUMINUM INSULATED OR COVERED OVERHEAD PRODUCTS SOLELY ON THE BASIS OF
ECONOMICS.   THE DECISION REQUIRES EVALUATION OF NUMEROUS ECONOMIC
FACTORS IN ADDITION TO THE COST OF THE WIRE OR CABLE ITSELF."  THE
RECORD AMPLY SUPPORTS THIS FINDING.  THERE WAS UNDISPUTED TESTIMONY
THAT IN SOME SITUATIONS, THE FINAL INSTALLED COST OF ALUMINUM CONDUCTOR
MAY BE GREATER THAN ITS COPPER COUNTERPART BECAUSE OF OTHER ECONOMIC
FACTORS SUCH AS THE HIGHER COST OF CONNECTORS WHICH MUST BE USED WITH
ALUMINUM AND THE FACT THAT THE COPPER-ALUMINUM COST DIFFERENCE BECOMES
LESS SIGNIFICANT THE MORE COMPLEX THE CONDUCTOR REQUIRED FOR THE JOB. 
THAT THE COPPER-ALUMINUM PRICE DIFFERENCE IS NOT ALWAYS THE DETERMINING
FACTOR IS FURTHER BORNE OUT BY OTHER FINDINGS OF THE TRIAL JUDGE, FULLY
SUPPORTED BY THE RECORD, THAT EVEN IN AREAS WHERE ALUMINUM HAS GAINED
"INCREASING USE," THERE IS A "LIVELY COMPETITION BETWEEN ALUMINUM AND
COPPER PRODUCTS"; THAT THE ALUMINUM-COPPER PRICE DIFFERENCE DOES NOT
FORECLOSE "ACTUAL COMPETITION" AND THAT, IN FACT, "SUBSTANTIAL
QUANTITIES" OF THE COPPER VERSION OF OVERHEAD DISTRIBUTION PRODUCTS ARE
SOLD. 

BUT EVEN IF INSULATED ALUMINUM CONDUCTOR IS A PROPER LINE OF
COMMERCE, THERE IS NO BASIS IN LOGIC, OR IN THE COMPETITIVE REALITIES
OF THE CONDUCTOR INDUSTRY, FOR LUMPING TOGETHER IN ONE LINE OF COMMERCE
BARE AND INSULATED ALUMINUM CONDUCTORS.  EVEN THE GOVERNMENT DOES NOT
CLAIM THAT THE TWO ARE COMPETITIVE; DIFFERENT EQUIPMENT AND ENGINEERING
SKILLS ARE REQUIRED FOR THEIR MANUFACTURE AND SALE; AND, AS THE
DISTRICT COURT FOUND, THE COMBINATION OF BARE AND INSULATED ALUMINUM
CONDUCTORS IS NOT GENERALLY "RECOGNIZED IN THE INDUSTRY AS A SEPARATE
ECONOMIC ENTITY" OR SUBMARKET.  THE GROUPING OF BARE AND INSULATED
ALUMINUM CONDUCTORS INTO ONE LINE OF COMMERCE, THEREFORE, IS NOT, AS
THE COURT SAYS, "A LOGICAL EXTENSION OF THE DISTRICT COURT'S FINDINGS,"
(FN2)  BUT A REPUDIATION OF THOSE FINDINGS.  AND IT ADDS NOTHING TO
NOTE, AS THE COURT DOES, THAT BOTH BARE AND INSULATED ALUMINUM
CONDUCTORS ARE USED TO CONDUCT ELECTRICITY AND ARE SOLD TO ELECTRICAL
UTILITIES.  ALL ELECTRICAL CONDUCTORS ARE USED FOR THIS PURPOSE AND
SOLD TO THESE CUSTOMERS.  SUCH A NON-SEQUITUR CANNOT JUSTIFY THE
SEPARATION OF ALUMINUM CONDUCTORS FROM THE REST OF THE ELECTRICAL
CONDUCTOR FIELD.    THE SHORT OF IT IS, THERE IS HERE NO RELEVANT
MARKET UPON WHICH TO PREDICATE A VIOLATION OF SEC 7.   THE DISTRICT
COURT CORRECTLY DESCRIBED THIS ACQUISITION AS "THE COMBINATION OF AN
ALUMINUM AND AN ESSENTIALLY COPPER MANUFACTURING COMPANY," UNDERTAKEN
BY ALCOA "IN THE FACE OF ITS DECLINING MARKET," FOR THE PURPOSE OF
OBTAINING INSULATING KNOW-HOW AND DIVERSIFICATION NEEDED "TO OVERCOME A
MARKET DISADVANTAGE RATHER THAN TO OBTAIN A CAPTIVE MARKET  ...  OR TO
ELIMINATE A COMPETITOR."  214 F. SUPP., AT 512.  I AM TOTALLY UNABLE TO
JOIN THE COURT IN ITS IPSE DIXIT TRANSFORMATION OF THIS ESSENTIALLY
"KNOW-HOW" ACQUISITION INTO A HORIZONTAL MERGER IN VIOLATION OF SEC 7. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

FN1  SEE UNITED STATES V. PHILADELPHIA BANK, 374 U.S. 321. 

FN2  SEE NOTE 4 OF THE COURT'S OPINION. 
..END :










NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. ALABAMA,
ATTORNEY GENERAL FLOWERS 377 U.S. 288 


NO. 169.  ARGUED MARCH 24, 1964.  - DECIDED JUNE 1, 1964.  - 274 ALA.
544, 150 SO. 2D 677, REVERSED AND REMANDED. 


ALLEGING NONCOMPLIANCE WITH ALABAMA'S CORPORATE REGISTRATION AND
BUSINESS QUALIFICATION LAWS, THE STATE IN 1956 BROUGHT OUSTER
PROCEEDINGS AGAINST THE PETITIONER, NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE (NAACP), A NEW YORK MEMBERSHIP
CORPORATION WITH AN OFFICE IN ALABAMA AND DOING BUSINESS THERE, AND IT
WAS BARRED UNDER AN EX PARTE RESTRAINING ORDER FROM OPERATING IN THE
STATE.  BEFORE ANY HEARING ON THE MERITS, A CONTEMPT JUDGMENT, WHICH
THE STATE SUPREME COURT ON PROCEDURAL GROUNDS REFUSED TO REVIEW, WAS
RENDERED AGAINST THE NAACP FOR FAILURE TO PRODUCE ITS MEMBERSHIP LISTS
AND OTHER RECORDS UNDER COURT ORDER.  WITHOUT REACHING THE VALIDITY OF
THE UNDERLYING RESTRAINING ORDER, THIS COURT REVERSED, AND, FOLLOWING
REINSTATEMENT BY THE STATE SUPREME COURT OF THE CONTEMPT JUDGMENT,
REVERSED AGAIN.  IN 1960 THE NAACP, STILL PROHIBITED FROM OPERATING IN
ALABAMA, SUED IN A FEDERAL COURT ALLEGING FAILURE BY THE ALABAMA COURTS
TO AFFORD IT A HEARING ON THE MERITS.  THE CASE REACHED THIS COURT A
THIRD TIME AND IN 1961 WAS REMANDED WITH INSTRUCTIONS THAT THE FEDERAL
DISTRICT COURT BE DIRECTED TO TRY THE CASE ON THE MERITS UNLESS THE
STATE DID SO BY A CERTAIN TIME.  THE STATE CIRCUIT COURT THEN HEARD THE
CASE; FOUND THAT THE NAACP HAD VIOLATED THE STATE'S CONSTITUTION AND
LAWS; AND PERMANENTLY ENJOINED IT FROM DOING BUSINESS IN THE STATE. 
THE STATE SUPREME COURT AFFIRMED, SOLELY ON THE BASIS OF A PROCEDURAL
RULE, WHICH IT APPLIED TO THE NAACP'S BRIEF, THAT WHERE UNRELATED
ASSIGNMENTS OF ERROR ARE ARGUED TOGETHER AND ONE IS WITHOUT MERIT, THE
OTHERS WILL NOT BE CONSIDERED.  HELD: 

1.  THERE WAS SUBSTANTIAL COMPLIANCE WITH THE PROCEDURAL RULE, AND
FAILURE TO CONSIDER PETITIONER'S ASSERTED CONSTITUTIONAL RIGHTS WAS
WHOLLY UNWARRANTED.  PP. 293-302. 

2.  IN VIEW OF WHAT HAS GONE BEFORE, THIS COURT IS DECIDING THE CASE
ON ITS MERITS RATHER THAN REMANDING IT TO THE STATE SUPREME COURT FOR
THAT PURPOSE.  P. 302. 

3.  ALABAMA'S CORPORATE REGISTRATION REQUIREMENTS ARE TO ENSURE
AMENABILITY OF FOREIGN CORPORATIONS TO SUIT IN STATE COURTS AND DO NOT
PROVIDE FOR A CORPORATION'S PERMANENT OUSTER FOR FAILURE TO REGISTER OR
BECAUSE IT ENGAGED IN OTHER ACTIVITIES, WHICH, IN ANY EVENT, FURNISHED
NO PROPER BASIS FOR EXCLUDING THE PETITIONER FROM ALABAMA.  PP. 302
310. 

4.  THIS CASE DOES NOT INVOLVE THE PRIVILEGE OF A CORPORATION TO DO
"BUSINESS" IN A STATE; IT INVOLVES THE FREEDOM OF INDIVIDUALS TO
ASSOCIATE FOR THE COLLECTIVE ADVOCACY OF IDEAS.  P. 309. 

5.  WHILE THIS COURT HAS POWER TO FORMULATE A DECREE FOR ENTRY IN THE
STATE COURTS, AS HELD IN MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304, THE
CASE IS REMANDED TO THE STATE SUPREME COURT FOR PROMPT ENTRY OF A
DECREE VACATING THE PERMANENT INJUNCTION ORDER AGAINST PETITIONER AND
PERMITTING IT TO OPERATE IN THE STATE, FAILING WHICH THE NAACP MAY
APPLY TO THIS COURT FOR FURTHER APPROPRIATE RELIEF.  P. 310. 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. ALABAMA EX
REL. FLOWERS, ATTORNEY GENERAL. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, INVOLVING THE RIGHT OF THE PETITIONER, THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TO CARRY ON
ACTIVITIES IN ALABAMA, REACHES THIS COURT FOR THE FOURTH TIME.  IN 1956
THE ATTORNEY GENERAL OF ALABAMA BROUGHT A SUIT IN EQUITY TO OUST THE
ASSOCIATION, A NEW YORK "MEMBERSHIP" CORPORATION, FROM THE STATE.  THE
BASIS OF THE PROCEEDING WAS THE ASSOCIATION'S ALLEGED FAILURE TO COMPLY
WITH ALABAMA STATUTES REQUIRING FOREIGN CORPORATIONS TO REGISTER WITH
THE ALABAMA SECRETARY OF STATE AND PERFORM OTHER ACTS IN ORDER TO DO
BUSINESS IN THE STATE; (FN1)  THE COMPLAINT ALLEGED ALSO THAT CERTAIN
OF THE PETITIONER'S ACTIVITIES IN ALABAMA, DETAILED BELOW, WERE
INIMICAL TO THE WELL-BEING OF CITIZENS OF THE STATE. 

ON THE DAY THE COMPLAINT WAS FILED, THE ATTORNEY GENERAL OBTAINED AN
EX PARTE RESTRAINING ORDER BARRING THE ASSOCIATION, PENDENTE LITE, FROM
CONDUCTING ANY BUSINESS WITHIN THE STATE AND FROM TAKING ANY STEPS TO
QUALIFY TO DO BUSINESS UNDER STATE LAW.  BEFORE THE CASE WAS HEARD ON
THE MERITS, THE ASSOCIATION WAS ADJUDGED IN CONTEMPT FOR FAILING TO
COMPLY WITH A COURT ORDER DIRECTING IT TO PRODUCE VARIOUS RECORDS,
INCLUDING MEMBERSHIP LISTS.  THE SUPREME COURT OF ALABAMA DISMISSED A
PETITION FOR CERTIORARI TO REVIEW THE FINAL JUDGMENT OF CONTEMPT ON
PROCEDURAL GROUNDS, 265 ALA. 349, 91 SO. 2D 214, WHICH THIS COURT, ON
REVIEW, FOUND INADEQUATE TO BAR CONSIDERATION OF THE ASSOCIATION'S
CONSTITUTIONAL CLAIMS.  NAACP V. ALABAMA EX REL.  PATTERSON, 357 U.S.
449.  UPHOLDING THOSE CLAIMS, WE REVERSED THE JUDGMENT OF CONTEMPT
WITHOUT REACHING THE QUESTION OF THE VALIDITY OF THE UNDERLYING
RESTRAINING ORDER. 

IN THE SECOND ROUND OF THESE PROCEEDINGS, THE SUPREME COURT OF
ALABAMA, ON REMAND "FOR PROCEEDINGS NOT INCONSISTENT" WITH THIS COURT'S
OPINION, 357 U.S., AT 467, AGAIN AFFIRMED THE JUDGMENT OF CONTEMPT
WHICH THIS COURT HAD OVERTURNED.  268 ALA. 531, 109 SO. 2D 138.  THIS
DECISION WAS GROUNDED ON BELIEF THAT THIS COURT'S JUDGMENT HAD RESTED
ON A "MISTAKEN PREMISE."  ID., AT 532, 109 SO. 2D, AT 139.  OBSERVING
THAT THE PREMISE OF OUR PRIOR DECISION HAD BEEN ONE WHICH THE STATE HAD
"PLAINLY ACCEPTED" THROUGHOUT THE PRIOR PROCEEDINGS HERE, THIS COURT
RULED THAT THE STATE COULD NOT, FOR THE FIRST TIME ON REMAND, CHANGE
ITS STANCE.  360 U.S. 240, 243.  WE NOTED THAT THE SUPREME COURT OF
ALABAMA "EVIDENTLY WAS NOT ACQUAINTED WITH THE DETAILED BASIS OF THE
PROCEEDINGS HERE" WHEN IT REAFFIRMED THE JUDGMENT OF CONTEMPT, ID., AT
243-244, AND AGAIN REMANDED WITHOUT CONSIDERING THE VALIDITY OF THE
RESTRAINING ORDER.  IN SO DOING, THE COURT SAID:  "WE ASSUME THAT THE
STATE SUPREME COURT  ...  WILL NOT FAIL TO PROCEED PROMPTLY WITH THE
DISPOSITION OF THE MATTERS LEFT OPEN UNDER OUR MANDATE FOR FURTHER
PROCEEDINGS  ...  " RENDERED IN THE PRIOR CASE.  ID., AT 245. 

OUR SECOND DECISION WAS ANNOUNCED ON JUNE 8, 1959.  UNABLE TO OBTAIN
A HEARING ON THE MERITS IN THE ALABAMA COURTS, THE ASSOCIATION, IN JUNE
1960, COMMENCED PROCEEDINGS IN THE UNITED STATES DISTRICT COURT TO
OBTAIN A HEARING THERE.  ALLEGING THAT THE RESTRAINING ORDER AND THE
FAILURE OF THE ALABAMA COURTS TO AFFORD IT A HEARING ON THE VALIDITY OF
THE ORDER WERE DEPRIVING IT OF CONSTITUTIONAL RIGHTS, THE ASSOCIATION
SOUGHT TO ENJOIN ENFORCEMENT OF THE ORDER.  WITHOUT PASSING ON THE
MERITS, THE DISTRICT COURT DISMISSED THE ACTION, BECAUSE IT WOULD NOT
ASSUME THAT THE EXECUTIVE AND JUDICIAL OFFICERS OF ALABAMA INVOLVED IN
THE LITIGATION WOULD FAIL TO PROTECT "THE CONSTITUTIONAL RIGHTS OF ALL
CITIZENS."  190 F. SUPP. 583, 586.  THE COURT OF APPEALS AGREED THAT
THE MATTER "SHOULD BE LITIGATED INITIALLY IN THE COURTS OF THE STATE." 
290 F.2D 337, 343.  IT, HOWEVER, VACATED THE JUDGMENT BELOW AND
REMANDED THE CASE TO THE DISTRICT COURT, WITH INSTRUCTIONS "TO PERMIT
THE ISSUES PRESENTED TO BE DETERMINED WITH EXPEDITION IN THE STATE
COURTS," BUT TO RETAIN JURISDICTION AND TAKE STEPS NECESSARY TO PROTECT
THE ASSOCIATION'S RIGHT TO BE HEARD ON ITS CONSTITUTIONAL CLAIMS. 
IBID. 

THE JURISDICTION OF THIS COURT WAS INVOKED A THIRD TIME.  ON OCTOBER
23, 1961, WE ENTERED AN ORDER AS FOLLOWS: 

"  ...  THE JUDGMENT BELOW IS VACATED, AND THE CASE IS REMANDED TO
THE COURT OF APPEALS WITH INSTRUCTIONS TO DIRECT THE DISTRICT COURT TO
PROCEED WITH THE TRIAL OF THE ISSUES IN THIS ACTION UNLESS WITHIN A
REASONABLE TIME, NO LATER THAN JANUARY 2, 1962, THE STATE OF ALABAMA
SHALL HAVE ACCORDED TO PETITIONER AN OPPORTUNITY TO BE HEARD ON ITS
MOTION TO DISSOLVE THE STATE RESTRAINING ORDER OF JUNE 1, 1956, AND
UPON THE MERITS OF THE ACTION IN WHICH SUCH ORDER WAS ISSUED.  PENDING
THE FINAL DETERMINATION OF ALL PROCEEDINGS IN THE STATE ACTION, THE
DISTRICT COURT IS AUTHORIZED TO RETAIN JURISDICTION OVER THE FEDERAL
ACTION AND TO TAKE SUCH STEPS AS MAY APPEAR NECESSARY AND APPROPRIATE
TO ASSURE A PROMPT DISPOSITION OF ALL ISSUES INVOLVED IN, OR CONNECTED
WITH, THE STATE ACTION  ...  ."  368 U.S. 16-17. 

IN DECEMBER 1961, MORE THAN FIVE YEARS AFTER IT WAS "TEMPORARILY"
OUSTED FROM ALABAMA, THE ASSOCIATION OBTAINED A HEARING ON THE MERITS
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, THE COURT WHICH HAD ISSUED
THE RESTRAINING ORDER IN 1956.  ON DECEMBER 29, 1961,  (FN2)  THE
CIRCUIT COURT ENTERED A FINAL DECREE IN WHICH THE COURT FOUND THAT THE
ASSOCIATION HAD CONTINUED TO DO BUSINESS IN ALABAMA "IN VIOLATION OF
THE CONSTITUTION AND LAWS OF THE STATE RELATING TO FOREIGN
CORPORATIONS" AND THAT THE ASSOCIATION'S ACTIVITIES IN THE STATE WERE
"IN VIOLATION OF OTHER LAWS OF THE STATE OF ALABAMA AND ARE AND HAVE
BEEN A USURPATION AND ABUSE OF ITS CORPORATE FUNCTIONS AND DETRIMENTAL
TO THE STATE OF ALABAMA  ...  ."  THE DECREE PERMANENTLY ENJOINED THE
ASSOCIATION AND THOSE AFFILIATED WITH IT FROM DOING "ANY FURTHER
BUSINESS OF ANY DESCRIPTION OR KIND" IN ALABAMA AND FROM ATTEMPTING TO
QUALIFY TO DO BUSINESS THERE.  THE ASSOCIATION APPEALED TO THE SUPREME
COURT OF ALABAMA, WHICH, ON FEBRUARY 28, 1963, AFFIRMED THE JUDGMENT
BELOW WITHOUT CONSIDERING THE MERITS.  274 ALA. 544, 150 SO. 2D 677. 
THE SUPREME COURT RELIED WHOLLY ON PROCEDURAL GROUNDS, DETAILED MORE
FULLY BELOW.  THIS COURT AGAIN GRANTED CERTIORARI, 375 U.S. 810. 

            I. 

WE CONSIDER FIRST THE NONFEDERAL BASIS OF THE DECISION OF THE ALABAMA
SUPREME COURT, WHICH IS ASSERTED BY THE STATE AS A BARRIER TO
CONSIDERATION OF THE CONSTITUTIONALITY OF THE ASSOCIATION'S OUSTER FROM
ALABAMA. 

IN ITS ASSIGNMENT OF ERRORS TO THE SUPREME COURT OF ALABAMA, THE
ASSOCIATION SPECIFIED 23 CLAIMED ERRORS IN THE PROCEEDINGS IN THE TRIAL
COURT.  (FN3)  EACH CLAIM OF ERROR WAS SEPARATELY NUMBERED AND SET OFF
IN A SEPARATE PARAGRAPH.  MOST OF THE CLAIMS ALLEGED THAT THE ERROR
INVOLVED DEPRIVED THE ASSOCIATION AND THOSE CONNECTED WITH IT OF RIGHTS
PROTECTED BY THE FEDERAL CONSTITUTION.  THE BRIEF FILED BY THE
ASSOCIATION IN THE STATE SUPREME COURT IS DIVIDED INTO FOUR SECTIONS:
"STATEMENT OF CASE," "STATEMENT OF FACTS," "PROPOSITIONS OF LAW"
(CONTAINING 15 SEPARATELY NUMBERED AND PARAGRAPHED PROPOSITIONS OF LAW,
WITH A SEPARATE LIST OF CASES SUPPORTING EACH), AND "ARGUMENT."  (FN4)
THE "ARGUMENT" SECTION IS SUBDIVIDED INTO FIVE PARTS BY ROMAN NUMERALS
UNACCOMPANIED BY ANY HEADINGS.  THERE IS A SPECIFIC REFERENCE IN THE
"ARGUMENT" TO EACH ASSIGNMENT OF ERROR ON WHICH THE ASSOCIATION
RELIED.  (FN5)  ONLY ONE ASSIGNMENT OF ERROR IS MENTIONED MORE THAN
ONCE; THAT ASSIGNMENT IS MENTIONED TWICE, BOTH TIMES IN CONNECTION WITH
THE SAME SUBSTANTIVE ISSUE.  IN ONLY TWO PARAGRAPHS IS THERE A
REFERENCE TO MORE THAN ONE ASSIGNED ERROR, ONE PARAGRAPH INCLUDING A
DISCUSSION OF TWO RELATED ASSIGNMENTS AND ANOTHER INCLUDING A
DISCUSSION OF FOUR RELATED ASSIGNMENTS. 

THE SUPREME COURT OF ALABAMA BASED ITS DECISION ENTIRELY ON THE
ASSERTED FAILURE OF THE ASSOCIATION'S BRIEF TO CONFORM TO RULES OF THE
COURT.  ALTHOUGH IT REFERRED TO RULE 9 OF ITS RULES, WHICH CONCERNS THE
FORM OF AN APPELLANT'S BRIEF,  (FN6)  THE SUPREME COURT GAVE NO
INDICATION OF ANY RESPECT IN WHICH THE ASSOCIATION'S BRIEF FELL SHORT
OF THE REQUIREMENTS OF THAT RULE, AND APPEARS TO HAVE PLACED NO
RELIANCE ON IT AT ALL.  SEE 274 ALA., AT 546, 150 SO. 2D, AT 679.  THE
BASIS OF THE DECISION BELOW WAS RATHER "A RULE OF LONG STANDING AND
FREQUENT APPLICATION THAT WHERE UNRELATED ASSIGNMENTS OF ERROR ARE
ARGUED TOGETHER AND ONE IS WITHOUT MERIT, THE OTHERS WILL NOT BE
CONSIDERED."  IBID.  PROCEEDING TO APPLY THAT RULE TO THE ASSOCIATION'S
BRIEF, THE SUPREME COURT HELD THAT AT LEAST ONE OF THE ASSIGNMENTS OF
ERROR CONTAINED IN EACH OF THE FIVE NUMBERED SUBDIVISIONS OF THE
"ARGUMENT" SECTION OF THE BRIEF WAS WITHOUT MERIT, AND THAT IT WOULD
THEREFORE NOT CONSIDER THE MERIT OF ANY OF THE OTHER ASSIGNMENTS. 
(FN7)  THE ATTORNEY GENERAL OF ALABAMA ARGUES THAT THIS IS A NONFEDERAL
GROUND OF DECISION ADEQUATE TO BAR REVIEW IN THIS COURT OF THE SERIOUS
CONSTITUTIONAL CLAIMS WHICH THE ASSOCIATION PRESENTS.  WE FIND THIS
POSITION WHOLLY UNACCEPTABLE. 

PAYING FULL RESPECT TO THE STATE COURT'S OPINION, IT SEEMS TO US
CRYSTAL CLEAR THAT THE RULE INVOKED BY IT CANNOT REASONABLY BE DEEMED
APPLICABLE TO THIS CASE.  IN ITS BRIEF, THE ASSOCIATION REFERRED TO
EACH OF ITS ASSIGNMENTS OF ERROR SEPARATELY, AND SPECIFIED THE ARGUMENT
PERTAINING THERETO.  A SEPARATE PARAGRAPH WAS DEVOTED TO EACH OF THE
ASSIGNMENTS OF ERROR EXCEPT, AS NOTED ABOVE, FOR TWO RELATED
ASSIGNMENTS INCLUDED IN ONE PARAGRAPH AND FOUR OTHER RELATED
ASSIGNMENTS INCLUDED IN ANOTHER PARAGRAPH.  THESE SIX ASSIGNMENTS, LIKE
ALL THE OTHERS, WERE SPECIFIED AND EXPLICITLY TIED TO THE ARGUMENT
RELATING TO EACH.  WE ARE AT A LOSS TO UNDERSTAND HOW IT COULD BE
CONCLUDED THAT THE STRUCTURE OF THE BRIEF DID NOT FULLY MEET THE
REQUIREMENT THAT UNRELATED ASSIGNMENTS OF ERROR NOT BE "ARGUED
TOGETHER."  HAD THE PETITIONER SIMPLY OMITTED THE ROMAN NUMERALS WHICH
SUBDIVIDE ITS "ARGUMENT" SECTION, INTENDED PRESUMABLY AS AN
ORGANIZATIONAL AID TO UNDERSTANDING, THERE WOULD HAVE BEEN NO
CONCEIVABLE BASIS FOR THE SUGGESTION THAT THE VARIOUS ERRORS WERE
ARGUED "IN BULK"; AND, INDEED, THE SOLE BASIS MENTIONED IN THE ALABAMA
COURT'S OPINION FOR THE CONCLUSION THAT THESE ERRORS WERE GROUPED FOR
ARGUMENT IS THE NUMBERING OF SUBDIVISIONS.  (FN8)  THE NUMBERING WAS A
MERE STYLISTIC DEVICE, WHICH CANNOT WELL BE REGARDED AS DETRACTING FROM
THE BRIEF'S FULL CONFORMITY WITH THE RULE IN QUESTION.  THE
CONSIDERATION OF ASSERTED CONSTITUTIONAL RIGHTS MAY NOT BE THWARTED BY
SIMPLE RECITATION THAT THERE HAS NOT BEEN OBSERVANCE OF A PROCEDURAL
RULE WITH WHICH THERE HAS BEEN COMPLIANCE IN BOTH SUBSTANCE AND FORM,
IN EVERY REAL SENSE.  DAVIS V. WECHSLER, 263 U.S. 22, 24; STAUB V. CITY
OF BAXLEY, 355 U.S. 313, 318-320.  TO THE SAME EFFECT, SEE THIS COURT'S
DISCUSSION OF A SIMILAR ASPECT OF PRIOR PROCEEDINGS IN THIS CASE, 357
U.S., AT 454-458. 

THE ALABAMA COURTS HAVE NOT HERETOFORE APPLIED THEIR RULES RESPECTING
THE PREPARATION OF BRIEFS WITH THE POINTLESS SEVERITY SHOWN HERE.  IN
THE EARLY CASE OF BELL V. FULGHAM, 202 ALA. 217, 218, 80 SO. 39, 40,
THE COURT SAID: 

"THE BRIEF FILED BY APPELLANT IS CHARACTERIZED BY A DEGREE OF
INFORMALITY AND AN APPARENT LACK OF ATTENTION TO RULE 10  ...
(PREDECESSOR TO THE PRESENT RULE 9); BUT THE RULE IS DIRECTORY, AND
FROM THE TIME OF ITS ADOPTION THE COURT HAS EXERCISED ITS DISCRETION IN
THE CONSIDERATION OF BRIEFS WHICH FAIRLY AND HELPFULLY MAKE THE POINTS
UPON WHICH APPELLANT RELIES.  AGREEABLY WITH THE PRACTICE THUS
ESTABLISHED, THE BRIEF FOR APPELLANT HAS BEEN CONSIDERED." 

MORE RECENTLY, IN BOLTON V. BARNETT LUMBER & SUPPLY CO., 267 ALA. 74,
75, 100 SO. 2D 9, THE COURT STATED AGAIN THAT ITS RULE GOVERNING THE
FORM OF AN APPELLANT'S BRIEF WAS "DIRECTORY" AND SAID THAT "IF
APPELLANT'S BRIEF, EVEN THOUGH NOT IN COMPLIANCE WITH THE RULE, FAIRLY
AND HELPFULLY MAKES THE POINTS UPON WHICH APPELLANT RELIES, THIS COURT
MAY, IN ITS DISCRETION, CONSIDER IT."  THE COURT NOTED THAT IT SAW "NO
REASON WHY THERE SHOULD BE ANY REAL DIFFICULTY IN COMPLYING WITH THESE
RULES."   IBID. 

OTHER CASES ARE IN ACCORD.  IN BROTHERS V. BROTHERS, 208 ALA. 258,
259, 94 SO. 175, 177, THE ALABAMA SUPREME COURT SAID: 

"IT IS TRUE THAT THE BRIEF FOR APPELLANT DOES NOT REFER TO THE TENTH
AND ELEVENTH ASSIGNMENTS OF ERROR BY NUMBER, AS IT SHOULD IN STRICTNESS
HAVE DONE.  BUT, IN VIEW OF THE SIMPLICITY OF THE RECORD, AND OF THE
FACTS THAT ONLY FOUR OR FIVE RULINGS ARE DISCUSSED, AND THAT SPECIFIC
REFERENCE TO THE ASSIGNMENTS WAS NOT NECESSARY TO OUR UNDERSTANDING OF
THE ARGUMENT, WE HAVE PREFERRED TO CONDONE THE FAULT IN THIS
INSTANCE." 

IN MADISON LIMESTONE CO. V. MCDONALD, 264 ALA. 295, 302, 87 SO. 2D
539, 544, THE COURT TREATED AS SUFFICIENT THREE ASSIGNMENTS OF ERROR
WHICH WERE "NOT PROPERLY EXPRESSED."  IN CITY OF MONTGOMERY V. MOTT,
266 ALA. 422, 96 SO. 2D 766, THERE WERE 25 ASSIGNMENTS OF ERROR, NONE
OF WHICH WAS REFERRED TO BY NUMBER IN THE APPELLANT'S BRIEF.  THE
ALABAMA SUPREME COURT SAID THAT THE BRIEF DID NOT "STRICTLY CONFORM" TO
THE RULES GOVERNING "THE FORM AND CONTENTS" OF APPELLANTS' BRIEFS, BUT
THAT IT DID "NOT FEEL THAT THE DEFECTS IN THE BRIEF WARRANT A DISMISSAL
OF THE APPEAL."  ID., AT 424, 96 SO. 2D, AT 767.  THE COURT STATED:
"WE HAVE CONDONED NONCOMPLIANCE WITH THE RULE IN QUESTION WHEN THE
RECORD IS SHORT AND SIMPLE AND WHEN A STRICT COMPLIANCE WITH THE RULE
IS NOT ESSENTIAL TO AN UNDERSTANDING OF THE ASSIGNMENTS OF ERROR WHICH
ARE ARGUED IN APPELLANT'S BRIEF."  IBID.  KENDALL ALABAMA CO. V. CITY
OF FORT PAYNE, 262 ALA. 465, 466, 79 SO. 2D 801, 802, IS TO THE SAME
EFFECT.    IN STATE V. FARABEE, 268 ALA. 437, 439, 108 SO. 2D 148, 149
150, THE COURT SAID: 

"AS POINTED OUT BY THE APPELLEE, APPELLANT'S BRIEF HAS NOT COMPLIED
FULLY WITH THE STANDARDS REQUIRED BY SUPREME COURT RULE 9  ...  .  A
CONCISE STATEMENT OF SO MUCH OF THE RECORD AS FULLY PRESENTS EVERY
ERROR AND EXCEPTION RELIED UPON REFERRING TO THE PAGES OF THE
TRANSCRIPT DID NOT APPEAR UNDER THE HEADING, 'STATEMENT OF THE CASE.' 
ONLY TWO GENERAL PROPOSITIONS OF LAW WERE SET OUT TO SUSTAIN THE SEVEN
ASSIGNMENTS OF ERROR PRESENTED ON APPEAL.  AND ONLY ONE CASE WAS CITED
IN APPELLANT'S ARGUMENT, WHICH SEEMED TO ARGUE SEVERAL ASSIGNMENTS
TOGETHER.  NEVERTHELESS, WE WILL EXERCISE OUR DISCRETION AND GIVE
CONSIDERATION TO THE POINTS ARGUED  ...  ." 

THE COURT THUS REGARDED AS TOO UNIMPORTANT TO PREVENT CONSIDERATION
OF THE MERITS THE VERY GROUND ON WHICH IT RELIES HERE, EVEN THOUGH IT
WAS ACCOMPANIED BY OTHER FAILURES TO COMPLY WITH THE RULES.  IN SHELBY
COUNTY V. BAKER, 269 ALA. 111, 116, 110 SO. 2D 896, 900, THE COURT
SAID: 

"APPELLANT HAS ASSIGNED THIRTY SEPARATE GROUNDS AS ERROR, BUT HAS
ARGUED THEM IN GROUPS, SO AS TO MAKE AVAILABLE TO THIS COURT
APPLICATION OF THE RULE THAT WHERE ASSIGNMENTS OF ERROR NOT KINDRED IN
NATURE ARE ARGUED TOGETHER AND ONE OF THEM IS WITHOUT MERIT, THE OTHERS
IN THE GROUP WILL NOT BE EXAMINED  ...  .  HOWEVER, MANY OF THE
ASSIGNMENTS SEEM TO BE SOMEWHAT KINDRED, AND, IN DEFERENCE TO COUNSEL,
WE WILL CONSIDER THEM."  (CITATIONS OMITTED.) 

IN BROOKS V. EVERETT, 271 ALA. 380, 124 SO. 2D 100, THE COURT
CONSIDERED ASSIGNMENTS OF ERROR ALTHOUGH THERE WERE 38 OF THEM AND NONE
HAD BEEN "SPECIFICALLY REFERRED TO IN APPELLANT'S BRIEF."  ID., AT 381,
124 SO. 2D, AT 102.  THE COURT SAID:  "  ...  WE HAVE HELD THAT
ALTHOUGH APPELLANT'S BRIEF DOES NOT COMPLY WITH THE RULE, IF IT FAIRLY
AND HELPFULLY MAKES THE POINTS UPON WHICH APPELLANT RELIES THIS COURT
MAY, IN ITS DISCRETION, CONSIDER THOSE POINTS ON THEIR MERITS."  IBID.
SEE ALSO STARIHA V. HAGOOD, 252 ALA. 158, 162, 40 SO. 2D 85, 89; QUINN
V. HANNON, 262 ALA. 630, 632-633, 80 SO. 2D 239, 241; THOMPSON V.
STATE, 267 ALA. 22, 25, 99 SO. 2D 198, 200. 

THE CASES CITED IN THE ALABAMA SUPREME COURT'S OPINION AND IN THE
BRIEF OF THE STATE ATTORNEY GENERAL IN THIS COURT QUITE EVIDENTLY DO
NOT SUPPORT THE STATE'S POSITION.  IN SOME, THERE WERE NO ASSIGNMENTS
OF ERROR, DOBSON V. DEASON, 258 ALA. 219, 61 SO. 2D 764, OR NONE WAS
MENTIONED IN THE APPELLANT'S BRIEF, BOLTON V. BARNETT LUMBER & SUPPLY
CO., SUPRA; PAK-A-SAK OF ALABAMA, INC., V. LAUTEN, 271 ALA. 276, 279,
123 SO. 2D 122, 125.  IN ANOTHER GROUP OF CASES, SEVERAL DIFFERENT
ALLEGATIONS OF ERROR WERE JOINED IN A SINGLE ASSIGNMENT OF ERROR. 
MOBILE, JACKSON & KANSAS CITY R. CO. V. BROMBERG, 141 ALA. 258, 37 SO.
395, 398; ALABAMA CHEMICAL CO. V. HALL, 212 ALA. 8, 10, 101 SO. 456,
458; SNELLINGS V. JONES, 33 ALA. APP.  301, 303, 33 SO. 2D 371, 372. 
THE REMAINING CASES ARE THE ONLY ONES WHICH ARE AT ALL RELATED TO THE
PRESENT CASE.  IN THEM, THE SUPREME COURT OF ALABAMA HELD THAT IF ANY
ONE OF A GROUP OF UNRELATED ASSIGNMENTS OF ERROR WHICH HAD BEEN ARGUED
TOGETHER, OR "IN BULK," WAS INSUFFICIENT, ALL OF THEM MUST FALL.  FORD
V. BRADFORD, 218 ALA. 62, 65, 117 SO. 429, 431; TAYLOR V. TAYLOR, 251
ALA. 374, 383, 37 SO. 2D 645, 652-653; FIRST NATIONAL BANK OF
BIRMINGHAM V. LOWERY, 263 ALA. 36, 41, 81 SO. 2D 284, 287; THOMPSON V.
STATE, 267 ALA. 22, 25, 99 SO. 2D 198, 200; BERTOLLA V. KAISER, 267
ALA. 435, 440, 103 SO. 2D 736, 740; MCELHANEY V. SINGLETON, 270 ALA.
162, 167, 117 SO. 2D 375, 380; MIZE V. MIZE, 273 ALA. 369, 370, 141 SO.
2D 200, 201.  WHILE IT DOES NOT ALWAYS APPEAR IN THE OPINIONS HOW THE
ASSIGNMENTS OF ERROR WERE ARGUED, EVERY INDICATION IS THAT, UNLIKE THE
SITUATION HERE, THEY WERE GROUPED TOGETHER "FOR THE PURPOSE OF
ARGUMENT," FIRST NATIONAL BANK OF BIRMINGHAM, SUPRA, AT 41, 81 SO. 2D,
AT 287, AND WERE IN FACT ARGUED AS A GROUP, AS THE WORDS USED BY THE
COURT SUGGEST.  IN MCELHANEY, SUPRA, AT 166, 117 SO. 2D, AT 380, FOR
EXAMPLE, THE COURT QUOTED THE APPELLANT'S BRIEF, AS FOLLOWS:
"PROPOSITION NO. 2 REFERS TO AND IS COVERED BY ASSIGNMENTS 2, 3 & 4
...  ."  IN THE REMAINDER OF THE DISCUSSION OF THESE ASSIGNMENTS IN THE
BRIEF, ALSO QUOTED, IBID., THEY ARE NEVER AGAIN MENTIONED OR
DISTINGUISHED.  IN TAYLOR, SUPRA, AT 383, 37 SO. 2D, AT 652, 51
ASSIGNMENTS OF ERROR WERE "GROUPED AND ARGUED TOGETHER IN BRIEF."  NONE
OF THESE CASES EVEN APPROACHES A RULING THAT WHEN, AS HERE, ASSIGNMENTS
OF ERROR ARE INDIVIDUALLY SPECIFIED IN CONNECTION WITH THE ARGUMENT
RELEVANT TO EACH, THEY ARE TO BE REGARDED AS "ARGUED IN BULK" BECAUSE,
FORSOOTH, THE ARGUMENT AS A WHOLE IS DIVIDED ON THE PAGES OF THE BRIEF
INTO NUMBERED SUBDIVISIONS. 

IN SUM, WE THINK THAT WHAT WE SAID WHEN THIS LITIGATION WAS FIRST
HERE, WITH RESPECT TO THE PROCEDURAL POINT THERE ASSERTED AS A STATE
GROUND OF DECISION ADEQUATE TO BAR REVIEW ON THE MERITS, ALSO FITS THE
PRESENT SITUATION: 

"NOVELTY IN PROCEDURAL REQUIREMENTS CANNOT BE PERMITTED TO THWART
REVIEW IN THIS COURT APPLIED FOR BY THOSE WHO, IN JUSTIFIED RELIANCE
UPON PRIOR DECISIONS, SEEK VINDICATION IN STATE COURTS OF THEIR FEDERAL
CONSTITUTIONAL RIGHTS."  357 U.S., AT 457-458. 

THE STATE HAS URGED THAT IF THE NONFEDERAL GROUND RELIED ON BELOW BE
FOUND INADEQUATE, AS WE FIND IT TO BE, THE CASE BE REMANDED TO THE
SUPREME COURT OF ALABAMA FOR DECISION ON THE MERITS.  WHILE THIS MIGHT
BE WELL ENOUGH IN OTHER CIRCUMSTANCES, IN VIEW OF WHAT HAS GONE BEFORE,
WE REJECT THAT CONTENTION AND PROCEED TO THE MERITS. 

                                             II. 

THE COMPLAINT AGAINST THE ASSOCIATION, AS FINALLY AMENDED, ALLEGED
THAT IT WAS A NEW YORK CORPORATION MAINTAINING AN OFFICE AND DOING
BUSINESS IN ALABAMA.  THE ACTS CHARGED AGAINST THE ASSOCIATION WERE: 

(1) THAT IT HAD "EMPLOYED OR OTHERWISE PAID MONEY" TO AUTHURINE LUCY
AND POLLY MEYERS HUDSON TO ENCOURAGE THEM TO ENROLL AS STUDENTS IN THE
UNIVERSITY OF ALABAMA IN ORDER TO TEST THE LEGALITY OF ITS POLICY
AGAINST ADMITTING NEGROES: 

(2)  THAT IT HAD FURNISHED LEGAL COUNSEL TO REPRESENT AUTHURINE LUCY
IN PROCEEDINGS TO OBTAIN ADMISSION TO THE UNIVERSITY: 

(3) THAT IT HAD "ENGAGED IN ORGANIZING, SUPPORTING AND FINANCING AN
ILLEGAL BOYCOTT" TO COMPEL A BUS LINE IN MONTGOMERY, ALABAMA, NOT TO
SEGREGATE PASSENGERS ACCORDING TO RACE: 

(4) THAT IT HAD "FALSELY CHARGED" OFFICIALS OF THE STATE AND THE
UNIVERSITY OF ALABAMA WITH ACTS IN VIOLATION OF STATE AND FEDERAL LAW: 

(5) THAT IT HAD "FALSELY CHARGED" THE ATTORNEY GENERAL OF ALABAMA AND
THE ALABAMA COURTS WITH "ARBITRARY, VINDICTIVE, AND COLLUSIVE" ACTS
INTENDED TO PREVENT IT FROM CONTESTING ITS OUSTER FROM THE STATE
"BEFORE AN IMPARTIAL JUDICIAL FORUM," AND HAD "FALSELY CHARGED" THE
CIRCUIT COURT AND SUPREME COURT OF THE STATE WITH DELIBERATELY DENYING
IT A HEARING ON THE MERITS OF ITS OUSTER: 

(6)  THAT IT HAD "FALSELY CHARGED" THE STATE AND ITS ATTORNEY GENERAL
WITH FILING CONTEMPT PROCEEDINGS AGAINST IT, KNOWING THE CHARGES
THEREIN TO BE FALSE; 

(7) THAT IT HAD "WILLFULLY VIOLATED" THE ORDER RESTRAINING IT FROM
CARRYING ON ACTIVITIES IN THE STATE: 

(8) THAT IT ATTEMPTED TO "PRESSURE" THE MAYOR OF PHILADELPHIA, THE
GOVERNOR OF PENNSYLVANIA, AND THE PENN STATE FOOTBALL TEAM INTO "A
BOYCOTT OF THE ALABAMA FOOTBALL TEAM" WHEN THE TWO TEAMS WERE TO PLAY
EACH OTHER IN THE LIBERTY BOWL: 

(9) THAT IT HAD "ENCOURAGED, AIDED, AND ABETTED THE UNLAWFUL BREACH
OF THE PEACE IN MANY CITIES IN ALABAMA FOR THE PURPOSE OF GAINING
NATIONAL NOTORIETY AND ATTENTION TO ENABLE IT TO RAISE FUNDS UNDER A
FALSE CLAIM THAT IT IS FOR THE PROTECTION OF ALLEGED CONSTITUTIONAL
RIGHTS": 

(10) THAT IT HAD "ENCOURAGED, AIDED, AND ABETTED A COURSE OF CONDUCT
WITHIN THE STATE OF ALABAMA, SEEKING TO DENY TO THE CITIZENS OF ALABAMA
THE CONSTITUTIONAL RIGHT TO VOLUNTARILY SEGREGATE"; AND: 

(11) THAT IT HAD CARRIED ON ITS ACTIVITIES IN ALABAMA WITHOUT
COMPLYING WITH STATE LAWS REQUIRING FOREIGN CORPORATIONS TO REGISTER
AND PERFORM OTHER ACTS IN ORDER TO DO BUSINESS WITHIN THE STATE. 

ALL OF THESE ACTS WERE ALLEGED TO BE "CAUSING IRREPARABLE INJURY TO
THE PROPERTY AND CIVIL RIGHTS OF THE RESIDENTS AND CITIZENS OF THE
STATE OF ALABAMA FOR WHICH CRIMINAL PROSECUTION AND CIVIL ACTIONS AT
LAW AFFORD NO ADEQUATE RELIEF  ...  ."  THE COMPLAINT STATED ALSO THAT
"THE SAID CONDUCT, PROCEDURE, FALSE ALLEGATIONS, AND METHODS USED BY
RESPONDENT RENDER TOTALLY UNACCEPTABLE TO THE STATE OF ALABAMA AND ITS
PEOPLE THE SAID RESPONDENT CORPORATION AND THE ACTIVITIES AND BUSINESS
IT TRANSACTS IN THIS STATE." 

THE LAST ALLEGATION, THAT THE ASSOCIATION HAS FAILED TO COMPLY WITH
THE STATUTORY REQUIREMENTS FOR A FOREIGN CORPORATION TO DO BUSINESS IN
ALABAMA, FURNISHES NO BASIS UNDER ALABAMA LAW FOR ITS OUSTER.  THE
REQUIREMENTS IN QUESTION ARE SET OUT IN THE CODE OF ALABAMA OF 1940,
TIT.  10, SECS 192-194.  THESE PROVISIONS REQUIRE THAT BEFORE DOING
BUSINESS IN ALABAMA A FOREIGN CORPORATION FILE WITH THE SECRETARY OF
STATE ITS ARTICLES OF INCORPORATION AND A WRITTEN INSTRUMENT
DESIGNATING A PLACE OF BUSINESS WITHIN THE STATE AND AN AUTHORIZED
AGENT RESIDING THERE.  THERE IS A FILING FEE OF $10.  THE CORPORATION
MUST FILE NOTICE OF AMENDMENTS TO ITS ARTICLES OF INCORPORATION AND
CHANGES IN ITS PLACE OF BUSINESS OR AUTHORIZED AGENT.  (FN9) 

THERE IS NOTHING IN THESE SECTIONS WHICH ATTACHES THE CONSEQUENCE OF
PERMANENT OUSTER TO A FOREIGN CORPORATION WHICH FAILS TO REGISTER. 
(FN10)  THAT THIS IS NOT THE EFFECT OF THE STATUTE IS CONCLUSIVELY
DEMONSTRATED BY SEC 194, WHICH PROVIDES THE STATE WITH A DIFFERENT AND
COMPLETE REMEDY:  "  ...  ANY  ...  FOREIGN CORPORATION THAT ENGAGES IN
OR TRANSACTS ANY BUSINESS IN THIS STATE WITHOUT COMPLYING WITH THE
PROVISIONS OF THE TWO PRECEDING SECTIONS SHALL, FOR EACH OFFENSE,
FORFEIT AND PAY TO THE STATE THE SUM OF ONE THOUSAND DOLLARS." 

ALABAMA CASES CONFIRM THAT THE REGISTRATION REQUIREMENTS ARE WHAT
THEY APPEAR ON THEIR FACE TO BE:  PROVISIONS ENSURING THAT FOREIGN
CORPORATIONS WILL BE AMENABLE TO SUIT IN ALABAMA COURTS.  (FN11) "THEY
CONSTITUTE A POLICE REGULATION FOR THE PROTECTION OF THE PROPERTY
INTERESTS OF THE CITIZENS OF THE STATE  ...  .  THE DOING OF A SINGLE
ACT OF BUSINESS, IF IT BE IN THE EXERCISE OF A CORPORATE FUNCTION, IS
PROHIBITED.  THE POLICY OF THE CONSTITUTION AND STATUTE IS TO PROTECT
OUR CITIZENS AGAINST THE FRAUD AND IMPOSITION OF INSOLVENT AND
UNRELIABLE CORPORATIONS, AND TO PLACE THEM IN AN ATTITUDE TO BE REACHED
BY LEGAL PROCESS FROM OUR COURTS IN FAVOR OF CITIZENS HAVING CAUSE OF
COMPLAINT."  ALABAMA WESTERN R. CO. V. TALLEY-BATES CONST. CO., 162
ALA. 396, 402-403, 50 SO. 341, 342.  SEE ARMOUR PACKING CO. OF LA.,
LTD., V. VINEGAR BEND LUMBER CO., 149 ALA. 205, 42 SO. 866; GEORGE M.
MULLER MFG. CO. V. FIRST NATIONAL BANK OF DOTHAN, 176 ALA. 229, 57 SO.
762.  THE ATTORNEY GENERAL OF ALABAMA HAS REFERRED US TO NO CASE, AND
WE HAVE BEEN ABLE TO FIND NONE, IN WHICH A FOREIGN CORPORATION WAS
OUSTED FROM ALABAMA FOR FAILING TO COMPLY WITH THE REGISTRATION
STATUTE.  (FN12) 

THE OTHER ASSERTED GROUNDS FOR EXCLUDING THE PETITIONER FROM ALABAMA
FURNISH NO BETTER FOUNDATION FOR THE ACTION BELOW.  THE FIRST TWO
GROUNDS RELIED ON ARE MANIFESTLY UNTENABLE.  BEFORE THESE PROCEEDINGS
WERE COMMENCED, THIS COURT HAD UPHELD THE RIGHT OF AUTHURINE LUCY AND
POLLY ANNE MEYERS TO ENROLL AT THE UNIVERSITY OF ALABAMA.  LUCY V.
ADAMS, 350 U.S. 1.  NEITHER FURNISHING THEM WITH FINANCIAL ASSISTANCE,
IN EFFECT A SCHOLARSHIP, TO ATTEND THE UNIVERSITY, NOR PROVIDING THEM
WITH LEGAL COUNSEL TO ASSIST THEIR EFFORTS TO GAIN ADMISSION WAS
UNLAWFUL OR COULD, CONSISTENTLY WITH THE DECISIONS OF THIS COURT, BE
INHIBITED BECAUSE CONTRARY TO THE UNIVERSITY'S POLICY AGAINST ADMITTING
NEGROES.  NAACP V. BUTTON, 371 U.S. 415. 

THE THIRD CHARGE LISTED ABOVE IS SCARCELY MORE SUBSTANTIAL.  EVEN IF
WE WERE TO INDULGE THE DOUBTFUL ASSUMPTION THAT AN ORGANIZED REFUSAL TO
RIDE ON MONTGOMERY'S BUSES IN PROTEST AGAINST A POLICY OF RACIAL
SEGREGATION MIGHT, WITHOUT MORE, IN SOME CIRCUMSTANCES VIOLATE A VALID
STATE LAW, SUCH A VIOLATION COULD NOT CONSTITUTIONALLY BE THE BASIS FOR
A PERMANENT DENIAL OF THE RIGHT TO ASSOCIATE FOR THE ADVOCACY OF IDEAS
BY LAWFUL MEANS.  AS WE SAID AT A PRIOR STAGE IN THIS LITIGATION: 

"IT IS BEYOND DEBATE THAT FREEDOM TO ENGAGE IN ASSOCIATION FOR THE
ADVANCEMENT OF BELIEFS AND IDEAS IS AN INSEPARABLE ASPECT OF THE
'LIBERTY' ASSURED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, WHICH EMBRACES FREEDOM OF SPEECH."  357 U.S., AT 460. 

THIS COURT HAS REPEATEDLY HELD THAT A GOVERNMENTAL PURPOSE TO CONTROL
OR PREVENT ACTIVITIES CONSTITUTIONALLY SUBJECT TO STATE REGULATION MAY
NOT BE ACHIEVED BY MEANS WHICH SWEEP UNNECESSARILY BROADLY AND THEREBY
INVADE THE AREA OF PROTECTED FREEDOMS.  SEE ID., AT 463-464.  "  ...
THE POWER TO REGULATE MUST BE SO EXERCISED AS NOT, IN ATTAINING A
PERMISSIBLE END, UNDULY TO INFRINGE THE PROTECTED FREEDOM."  CANTWELL
V. CONNECTICUT, 310 U.S. 296, 304.  "  ...  EVEN THOUGH THE
GOVERNMENTAL PURPOSE BE LEGITIMATE AND SUBSTANTIAL, THAT PURPOSE CANNOT
BE PURSUED BY MEANS THAT BROADLY STIFLE FUNDAMENTAL PERSONAL LIBERTIES
WHEN THE END CAN BE MORE NARROWLY ACHIEVED."  SHELTON V. TUCKER, 364
U.S. 479, 488 (FOOTNOTE OMITTED).  FOR OTHER CASES ELABORATING THIS
PRINCIPLE, SEE LOVELL V. GRIFFIN, 303 U.S. 444, 451; SCHNEIDER V.
STATE, 308 U.S. 147, 161, 165; MARTIN V. STRUTHERS, 319 U.S. 141, 146
149; SAIA V. NEW YORK, 334 U.S. 558; AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382; KUNZ V. NEW YORK, 340 U.S. 290, 294-295; LOUISIANA
EX REL. GREMILLION V. NAACP, 366 U.S. 293.  THIS PRINCIPLE IS
APPLICABLE HERE EVEN THOUGH THE OUSTER OF THE PETITIONER FROM ALABAMA
HAS BEEN ACCOMPLISHED SOLELY BY JUDICIAL ACT; "WHETHER LEGISLATIVE OR
JUDICIAL, IT IS STILL THE APPLICATION OF STATE POWER WHICH WE ARE ASKED
TO SCRUTINIZE."  357 U.S., AT 463.    IN THE FIRST PROCEEDINGS IN THIS
CASE, WE HELD THAT THE COMPELLED DISCLOSURE OF THE NAMES OF THE
PETITIONER'S MEMBERS WOULD ENTAIL "THE LIKELIHOOD OF A SUBSTANTIAL
RESTRAINT UPON THE EXERCISE BY PETITIONER'S MEMBERS OF THEIR RIGHT TO
FREEDOM OF ASSOCIATION."  357 U.S., AT 462.  IT IS OBVIOUS THAT THE
COMPLETE SUPPRESSION OF THE ASSOCIATION'S ACTIVITIES IN ALABAMA WHICH
WAS ACCOMPLISHED BY THE ORDER BELOW IS AN EVEN MORE SERIOUS ABRIDGMENT
OF THAT RIGHT.  THE ALLEGATIONS OF ILLEGAL CONDUCT CONTAINED IN THE
THIRD CHARGE AGAINST THE PETITIONER SUGGEST NO LEGITIMATE GOVERNMENTAL
OBJECTIVE WHICH REQUIRES SUCH RESTRAINT.  COMPARE KUNZ V. NEW YORK,
SUPRA, AT 294-295. 

THE FOURTH, FIFTH, AND SIXTH CHARGES AGAINST THE PETITIONER ALL
INVOLVE ALLEGED "FALSE CHARGES" MADE BY THE ASSOCIATION OR ITS
REPRESENTATIVES AGAINST STATE OFFICIALS.  (FN13)  WITHOUT SPECULATING
ON OTHER POSSIBLE CONSTITUTIONAL INFIRMITIES TO WHICH THESE ALLEGATIONS
MAY BE SUBJECT, CF. NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, WE
CONCLUDE THAT, FOR THE REASONS DISCUSSED ABOVE, THEY FURNISH NO BASIS
FOR THE RESTRICTION OF THE RIGHT OF THE PETITIONER'S MEMBERS TO
ASSOCIATE IN ALABAMA.  SO TOO WITH THE SEVENTH CHARGE, WHICH ALLEGES
VIOLATION OF THE "TEMPORARY" RESTRAINING ORDER IN EFFECT FROM 1956 TO
1961 (WHEN IT WAS MADE PERMANENT).  WE DISPOSE OF THIS CHARGE ON THE
SAME BASIS AS THE OTHERS, WITHOUT CONSIDERING THE SUFFICIENCY OF THE
EVIDENCE TO SUPPORT THE FINDING THAT THERE WAS A VIOLATION OF THE ORDER
OR THE SERIOUS CONSTITUTIONAL QUESTIONS RAISED BY AN ORDER WHICH
RESTRAINED FOR SO LONG A TIME THE EXERCISE OF UNQUESTIONABLE
CONSTITUTIONAL RIGHTS ON THE GROUNDS INVOLVED HERE.  WE PASS THE EIGHTH
CHARGE WITHOUT COMMENT; BY NO STRETCH CAN IT BE CONSIDERED GERMANE TO
THE PRESENT CONTROVERSY.  THE NINTH CHARGE, INVOLVING ALLEGED BREACHES
OF THE PEACE, FALLS WITH THE THIRD.  "THERE ARE APPROPRIATE PUBLIC
REMEDIES TO PROTECT THE PEACE AND ORDER OF THE COMMUNITY  ... ," KUNZ,
SUPRA, AT 294, WHICH DO NOT INFRINGE CONSTITUTIONAL RIGHTS.  THE TENTH
CHARGE, IF IT ADDS ANYTHING TO THOSE WHICH HAVE GONE BEFORE, SIMPLY
CHALLENGES THE RIGHT OF THE PETITIONER AND ITS MEMBERS TO EXPRESS THEIR
VIEWS, BY WORDS AND LAWFUL CONDUCT, ON A SUBJECT OF VITAL
CONSTITUTIONAL CONCERN.  SUCH A CHALLENGE CANNOT STAND. 

THERE IS NO OCCASION IN THIS CASE FOR US TO CONSIDER HOW MUCH
SURVIVES OF THE PRINCIPLE THAT A STATE CAN IMPOSE SUCH CONDITIONS AS IT
CHOOSES ON THE RIGHT OF A FOREIGN CORPORATION TO DO BUSINESS WITHIN THE
STATE, OR CAN EXCLUDE IT FROM THE STATE ALTOGETHER.  E.G., CRESCENT
COTTON OIL CO. V. MISSISSIPPI, 257 U.S. 129, 137.  THIS CASE, IN TRUTH,
INVOLVES NOT THE PRIVILEGE OF A CORPORATION TO DO BUSINESS IN A STATE,
BUT RATHER THE FREEDOM OF INDIVIDUALS TO ASSOCIATE FOR THE COLLECTIVE
ADVOCACY OF IDEAS.  "FREEDOMS SUCH AS  ...  THIS ARE PROTECTED NOT ONLY
AGAINST HEAVYHANDED FRONTAL ATTACK, BUT ALSO FROM BEING STIFLED BY MORE
SUBTLE GOVERNMENTAL INTERFERENCE."  BATES V. CITY OF LITTLE ROCK, 361
U.S. 516, 523.  NOR IS NEW YORK EX REL. BRYANT V. ZIMMERMAN, 278 U.S.
63, WHICH INVOLVED NEW YORK'S APPLICATION OF A REGULATORY STATUTE TO
THE KU KLUX KLAN, MORE RELEVANT HERE THAN IT WAS AT THE EARLIER STAGE
OF THESE PROCEEDINGS WHERE WE SAID THAT IT "INVOLVED MARKEDLY DIFFERENT
CONSIDERATIONS IN TERMS OF THE INTEREST OF THE STATE  ...  ," 357 U.S.,
AT 465.  THE COURT NOTED INTER ALIA THAT THE BRYANT DECISION WAS "BASED
ON THE PARTICULAR CHARACTER OF THE KLAN'S ACTIVITIES, INVOLVING ACTS OF
UNLAWFUL INTIMIDATION AND VIOLENCE, WHICH THE COURT ASSUMED WAS BEFORE
THE STATE LEGISLATURE WHEN IT ENACTED THE STATUTE, AND OF WHICH THE
COURT ITSELF TOOK JUDICIAL NOTICE."  IBID.

THE JUDGMENT BELOW MUST BE REVERSED.  IN VIEW OF THE HISTORY OF THIS
CASE, WE ARE ASKED TO FORMULATE A DECREE FOR ENTRY IN THE STATE COURTS
WHICH WILL ASSURE THE ASSOCIATION'S RIGHT TO CONDUCT ACTIVITIES IN
ALABAMA WITHOUT FURTHER DELAY.  WHILE SUCH A COURSE UNDOUBTEDLY LIES
WITHIN THIS COURT'S POWER, MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304, WE
PREFER TO FOLLOW OUR USUAL PRACTICE AND REMAND THE CASE TO THE SUPREME
COURT OF ALABAMA FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  SUCH PROCEEDINGS SHOULD INCLUDE THE PROMPT ENTRY OF A DECREE,
IN ACCORDANCE WITH STATE PROCEDURES, VACATING IN ALL RESPECTS THE
PERMANENT INJUNCTION ORDER ISSUED BY THE CIRCUIT COURT OF MONTGOMERY
COUNTY, ALABAMA, AND PERMITTING THE ASSOCIATION TO TAKE ALL STEPS
NECESSARY TO QUALIFY IT TO DO BUSINESS IN ALABAMA.  SHOULD WE UNHAPPILY
BE MISTAKEN IN OUR BELIEF THAT THE SUPREME COURT OF ALABAMA WILL
PROMPTLY IMPLEMENT THIS DISPOSITION, LEAVE IS GIVEN THE ASSOCIATION TO
APPLY TO THIS COURT FOR FURTHER APPROPRIATE RELIEF.  REVERSED AND
REMANDED. 

FN1  CODE OF ALABAMA OF 1940, TIT. 10, SECS 192-194.  SEE NOTE 9,
INFRA, P. 304. 

FN2  THIS WAS FOUR DAYS BEFORE THE DATE ON WHICH, BY THIS COURT'S
ORDER OF OCTOBER 23, 1961, THE FEDERAL DISTRICT COURT WAS TO PROCEED
WITH A TRIAL ON THE MERITS IF THE ALABAMA COURTS HAD NOT YET GRANTED
THE PETITIONER A HEARING.  SEE SUPRA. 

FN3  THE ASSIGNMENT OF ERRORS IS PART OF THE TYPEWRITTEN RECORD FILED
WITH THIS COURT. 

FN4  THERE IS ALSO A "CONCLUSION," WHICH REQUESTS REVERSAL OF THE
JUDGMENT BELOW. 

THE BRIEF IS REPRODUCED IN APPENDIX B TO THE PETITION FOR CERTIORARI
IN THIS COURT; THE ACCURACY OF THE REPRODUCTION IS NOT QUESTIONED BY
THE STATE. 

FN5  ONE ASSIGNMENT OF ERROR WAS NOT MENTIONED IN THE ASSOCIATION'S
BRIEF AT ALL, AND WAS DEEMED WAIVED BY THE ALABAMA SUPREME COURT.  274
ALA., AT 549, 150 SO. 2D, AT 682. 

FN6  RULE 9 PROVIDES: 

"APPELLANT'S BRIEF UNDER SEPARATE HEADINGS SHALL CONTAIN:  (A) UNDER
THE HEADING 'STATEMENT OF THE CASE,' A CONCISE STATEMENT OF SO MUCH OF
THE RECORD AS FULLY PRESENTS EVERY ERROR AND EXCEPTION RELIED UPON
REFERRING TO THE PAGES OF THE TRANSCRIPT; (B) UNDER THE HEADING
'STATEMENT OF THE FACTS,' A CONDENSED RECITAL OF THE EVIDENCE IN
NARRATIVE FORM SO AS TO PRESENT THE SUBSTANCE CLEARLY AND CONCISELY,
REFERRING TO THE PAGES OF THE TRANSCRIPT, AND IF THE INSUFFICIENCY OF
THE EVIDENCE TO SUSTAIN THE VERDICT OR FINDING, IN FACT OR LAW, IS
ASSIGNED, THEN THE STATEMENT SHALL CONTAIN A CONDENSED RECITAL OF THE
EVIDENCE GIVEN BY EACH WITNESS IN NARRATIVE FORM BEARING ON THE POINTS
IN ISSUE SO AS TO FULLY PRESENT THE SUBSTANCE OF THE TESTIMONY OF THE
WITNESS CLEARLY AND CONCISELY; (C) UNDER THE HEADING 'PROPOSITIONS OF
LAW,' A CONCISE STATEMENT, WITHOUT ARGUMENT, OF EACH RULE OR
PROPOSITION OF LAW RELIED UPON TO SUSTAIN THE ERRORS ASSIGNED, TOGETHER
WITH THE AUTHORITIES RELIED UPON IN SUPPORT OF EACH, AND IN CITING
CASES, THE NAMES OF PARTIES MUST BE GIVEN, WITH THE BOOK AND PAGE WHERE
REPORTED; (D) ARGUMENT WITH RESPECT TO ERRORS ASSIGNED WHICH COUNSEL
DESIRE TO INSIST UPON.  ASSIGNMENTS OF ERROR NOT SUBSTANTIALLY ARGUED
IN BRIEF WILL BE DEEMED WAIVED AND WILL NOT BE CONSIDERED BY THE
COURT.  THE STATEMENTS MADE BY APPELLANT UNDER THE HEADINGS 'STATEMENT
OF THE CASE' AND 'STATEMENT OF THE FACTS' WILL BE TAKEN TO BE ACCURATE
AND SUFFICIENT FOR DECISION, UNLESS THE OPPOSITE PARTY IN HIS BRIEF
SHALL MAKE THE NECESSARY CORRECTIONS OR ADDITIONS."  261 ALA. XXII. 

FN7  THE FIFTH SUBDIVISION OF THE "ARGUMENT" SECTION OF THE
PETITIONER'S BRIEF, WHICH IS ILLUSTRATIVE OF THE WHOLE, IS AS FOLLOWS:

                                             "V 

"THE EVIDENCE DISCLOSES THAT THESE PROCEEDINGS ARE SINGULAR IN THAT
THERE IS NO SHOWING THAT SUCH PROCEEDINGS HAD BEEN TAKEN AGAINST ANY
SIMILAR FOREIGN CORPORATION SINCE 1918.  IT IS CLEAR FROM THE MANNER IN
WHICH THESE PROCEEDINGS WERE INSTITUTED, WITHOUT NOTICE TO APPELLANT,
THAT STATE OFFICIALS WERE ATTEMPTING TO MISUSE THE LAW TO OUST
APPELLANT FROM THE STATE PURELY BECAUSE APPELLANT'S AIMS AND OBJECTIVES
ARE AT VARIANCE WITH VIEWS HELD BY STATE OFFICIALS.  THE QUESTION OF
DENIAL OF FOURTEENTH AMENDMENT RIGHTS HERE INVOLVED IS BEFORE THE COURT
UNDER ASSIGNMENT OF ERROR NUMBER 10.  AS POINTED OUT IN PROPOSITION
NUMBER 1, ANTE, RACIAL DISCRIMINATION OF ANY KIND IS UNLAWFUL WHEN
IMPOSED AND ENFORCED BY GOVERNMENTAL AUTHORITIES WHETHER IN SCHOOLS,
BROWN V. BOARD OF EDUCATION, SUPRA; RECREATIONAL FACILITIES, DAWSON V.
MAYOR, SUPRA; IN PUBLIC PARKS, HOLMES V. CITY OF ATLANTA, SUPRA; IN
INTRASTATE COMMERCE, GAYLE V. BROWDER, SUPRA; IN INTERSTATE COMMERCE,
BAILEY V. PATTERSON, SUPRA; AND IN ANY AND ALL KINDS OF PUBLIC
FACILITIES. 

"THE COURTS HAVE CONSISTENTLY STRUCK DOWN STATE REGULATIONS AND
ACTIONS WHICH IN PURPOSE AND EFFECT SEEK TO IMPOSE DISCRIMINATION. 
YICK WO V. HOPKINS, 118 U.S. 356; OYAMA V. CALIFORNIA, 332 U.S. 633;
TAKAHASHI V. FISH & GAME COMMISSION, 334 U.S. 410. 

"IT IS ALSO CLEAR THAT THE STATE MAY NOT IMPOSE RESTRICTIONS UPON
PERSONS TO PREVENT THEIR ADVOCATING BY LAWFUL MEANS THE ELIMINATION OF
RACIAL DISCRIMINATION AND SEGREGATION, N.A.A.C.P.  V. ALABAMA, SUPRA.
WHAT THE STATE IS HERE ATTEMPTING TO DO IS TO PREVENT THE APPELLANT,
AND THOSE WHO WORK IN CONCERT WITH IT, FROM TAKING LAWFUL ACTION IN
OPPOSITION TO ILLEGAL STATE POLICY WHICH SEEKS TO PERPETUATE AN
UNCONSTITUTIONAL PATTERN OF SEGREGATION AND DISCRIMINATION, AS
SUBMITTED UNDER ASSIGNMENT OF ERROR NUMBER 16.  IN SHORT, THE STATE IS
USING THESE PROCEEDINGS TO ACCOMPLISH RACIAL DISCRIMINATION FORBIDDEN
BY THE FOURTEENTH AMENDMENT, AND THE JUDGMENT HEREIN, IN EFFECT,
CONSTITUTES A FORBIDDEN DISCRIMINATION IN VIOLATION OF THE CONSTITUTION
OF THE UNITED STATES.  CF. GOMILLION V. LIGHTFOOT, SUPRA. 

"UNDER THESE CIRCUMSTANCES, DENIAL OF APPELLANT'S MOTION FOR A
REHEARING WAS ERROR, AS SUBMITTED UNDER ASSIGNMENT OF ERROR NUMBER 23,
AND A DEPRIVATION OF DUE PROCESS AS GUARANTEED UNDER THE FOURTEENTH
AMENDMENT." 

THE SUPREME COURT OF ALABAMA DEALT WITH THE ARGUMENTS THUS PRESENTED
AS FOLLOWS: 

"ASSIGNMENTS OF ERROR 10, 16 AND 23 ARE ARGUED TOGETHER IN SUBSECTION
V OF APPELLANT'S BRIEF.  NO. 10 IS UNRELATED TO THE OTHERS AND CHARGES
THAT THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR REHEARING. 

"IT IS SETTLED THAT A DECREE DENYING AN APPLICATION FOR REHEARING
WILL NOT SUPPORT AN APPEAL; NOR IS SUCH A DECREE SUBJECT TO REVIEW ON
ASSIGNMENTS OF ERROR ON APPEAL FROM THE FINAL DECREE  ...  . (CITATIONS
OMITTED.) 

"SINCE ASSIGNMENT OF ERROR 10 IS WITHOUT MERIT AND IS ARGUED WITH
NOS. 16 AND 23, THE OTHERS ARE NOT CONSIDERED.  TAYLOR V. TAYLOR, 251
ALA. 374, 37 SO. 2D 645."  274 ALA., AT 548-549, 150 SO. 2D, AT 681
682. 

THIS IS ILLUSTRATIVE OF THE DISPOSITION BELOW OF THE REMAINDER OF THE
PETITIONER'S "ARGUMENT." 

FN8  "THE ARGUMENT SECTION OF APPELLANT'S BRIEF IS DIVIDED INTO FIVE
DIFFERENT SUBDIVISIONS, EACH DEALING WITH THE ARGUMENT OF TWO OR MORE
ASSIGNMENTS OF ERROR."  274 ALA., AT 546, 150 SO. 2D, AT 679.  SEE ALSO
THE FIRST SENTENCE OF THE PORTION OF THE COURT'S OPINION QUOTED IN NOTE
7, SUPRA, P. 296. 

FN9  "EVERY CORPORATION NOT ORGANIZED UNDER THE LAWS OF THIS STATE
SHALL, BEFORE ENGAGING IN OR TRANSACTING ANY BUSINESS IN THIS STATE,
FILE WITH THE SECRETARY OF STATE A CERTIFIED COPY OF ITS ARTICLES OF
INCORPORATION OR ASSOCIATION AND FILE AN INSTRUMENT OF WRITING, UNDER
THE SEAL OF THE CORPORATION AND SIGNED OFFICIALLY BY THE PRESIDENT AND
SECRETARY THEREOF, DESIGNATING AT LEAST ONE KNOWN PLACE OF BUSINESS IN
THIS STATE AND AN AUTHORIZED AGENT OR AGENTS RESIDING THEREAT; AND WHEN
ANY SUCH CORPORATION SHALL AMEND ITS ARTICLES OF INCORPORATION OR
ASSOCIATION, OR SHALL ABANDON OR CHANGE ITS PLACE OF BUSINESS AS
DESIGNATED IN SUCH INSTRUMENT, OR SHALL SUBSTITUTE ANOTHER AGENT OR
AGENTS FOR THE AGENT OR AGENTS DESIGNATED IN SUCH INSTRUMENT OF
WRITING, SUCH CORPORATION SHALL FILE A NEW INSTRUMENT OF WRITING AS
HEREIN PROVIDED, BEFORE TRANSACTING ANY FURTHER BUSINESS IN THIS
STATE. 

"SUCH INSTRUMENT WHEN FILED BY A CORPORATION ENGAGED IN ANY BUSINESS
OF INSURANCE MUST BE FILED IN THE OFFICE OF OF THE SUPERINTENDENT OF
INSURANCE, AND WHEN FILED BY A CORPORATION ENGAGED IN ANY OTHER
BUSINESS THAN THAT OF INSURANCE MUST BE FILED IN THE OFFICE OF THE
SECRETARY OF STATE, AND THERE SHALL BE PAID AT THE SAME TIME FOR FILING
SUCH INSTRUMENT TO THE OFFICER WITH WHOM THE SAME IS FILED THE SUM OF
TEN DOLLARS FOR THE USE OF THE STATE. 

"IT IS UNLAWFUL FOR ANY FOREIGN CORPORATION TO ENGAGE IN OR TRANSACT
ANY BUSINESS IN THIS STATE BEFORE FILING THE WRITTEN INSTRUMENT
PROVIDED FOR IN THE TWO PRECEDING SECTIONS; AND ANY SUCH CORPORATION
THAT ENGAGES IN OR TRANSACTS ANY BUSINESS IN THIS STATE WITHOUT
COMPLYING WITH THE PROVISIONS OF THE TWO PRECEDING SECTIONS SHALL, FOR
EACH OFFENSE, FORFEIT AND PAY TO THE STATE THE SUM OF ONE THOUSAND
DOLLARS."  CODE OF ALABAMA OF 1940, TIT. 10, SECS 192-194. 

THESE PROVISIONS ARE CARRIED FORWARD, WITH SOME CHANGES, IN THE CODE
OF ALABAMA (1958 RECOMP.), TIT. 10, SECS 21(90)-21(92).  SINCE THE
ASSOCIATION HAS BEEN RESTRAINED SINCE 1956 FROM COMPLYING WITH THE
STATUTORY REQUIREMENTS, THE 1940 PROVISIONS ARE APPLICABLE TO THIS
CASE. 

THE COMPLAINT ALLEGED ALSO THAT THE ASSOCIATION WAS VIOLATING ART.
12, SEC 232, OF THE ALABAMA CONSTITUTION, WHICH PROVIDES: 

"NO FOREIGN CORPORATION SHALL DO ANY BUSINESS IN THIS STATE WITHOUT
HAVING AT LEAST ONE KNOWN PLACE OF BUSINESS AND AN AUTHORIZED AGENT OR
AGENTS THEREIN, AND WITHOUT FILING WITH THE SECRETARY OF STATE A
CERTIFIED COPY OF ITS ARTICLES OF INCORPORATION OR ASSOCIATION.  SUCH
CORPORATION MAY BE SUED IN ANY COUNTY WHERE IT DOES BUSINESS, BY
SERVICE OF PROCESS UPON AN AGENT ANYWHERE IN THE STATE.  THE
LEGISLATURE SHALL, BY GENERAL LAW, PROVIDE FOR THE PAYMENT TO THE STATE
OF ALABAMA OF A FRANCHISE TAX BY SUCH CORPORATION, BUT SUCH FRANCHISE
TAX SHALL BE BASED ON THE ACTUAL AMOUNT OF CAPITAL EMPLOYED IN THIS
STATE.  STRICTLY BENEVOLENT, EDUCATIONAL, OR RELIGIOUS CORPORATIONS
SHALL NOT BE REQUIRED TO PAY SUCH A TAX."    FN10  COMPARE, E.G., THE
PROVISIONS OF MASS. GEN. LAWS ANN., C. 181, SEC 19; VERMONT STATUTES
ANN., TIT. 11, SEC 861. 

FN11  SEE THE SECOND SENTENCE OF ART. 12, SEC 232, OF THE ALABAMA
CONSTITUTION, QUOTED IN NOTE 9, SUPRA. 

FN12  THE CIRCUIT COURT'S DECREE, PRESUMABLY AN EXERCISE OF THE
COURT'S GENERAL POWERS IN EQUITY, WAS NOT ACCOMPANIED BY ANY OPINION,
BUT WAS EVIDENTLY BASED ON THE COURT'S FINDING THAT THE OTHER
ALLEGATIONS OF THE COMPLAINT WERE PROVED BY THE EVIDENCE, AND, ALONG
WITH THE ASSOCIATION'S FAILURE TO REGISTER, WARRANTED ITS OUSTER FROM
THE STATE.  (THE COURT RESERVED THE RIGHT "AT A FUTURE DATE TO STATE IN
AN OPINION ITS FULL AND COMPLETE FINDINGS OF FACT AND ITS RULINGS ON
THE LAW IN THIS CASE, WITH APPROPRIATE CITATIONS OF AUTHORITIES."  SO
FAR AS WE ARE PRESENTLY ADVISED, NO OPINION HAS BEEN FILED.)  NOTHING
IN THE DECREE SUGGESTS THAT THE COURT REGARDED FAILURE TO REGISTER BY
ITSELF AS A SUFFICIENT BASIS FOR OUSTER UNDER ALABAMA LAW. 

EVEN IF ALABAMA LAW WERE OTHERWISE, PAST FAILURE TO REGISTER COULD
NOT CONSTITUTIONALLY BE MADE THE BASIS FOR PERMANENTLY PREVENTING THE
ASSOCIATION FROM REGISTERING AND THEREBY DENYING ITS MEMBERS THE RIGHT
TO ASSOCIATE IN ALABAMA.  SEE INFRA, PP. 309-310. 

SINCE WE THINK IT CLEAR FROM THE FOREGOING THAT THE ASSOCIATION MAY
NOT, UNDER ALABAMA LAW, BE OUSTED FROM THE STATE MERELY FOR FAILURE TO
REGISTER, IT IS UNNECESSARY FOR US TO CONSIDER THE PETITIONER'S OTHER
CONTENTIONS THAT, AS A NONPROFIT ORGANIZATION, IT IS EXEMPT FROM THE
REGISTRATION REQUIREMENT, AND THAT, HAVING KNOWINGLY PERMITTED THE
ASSOCIATION TO CARRY ON ITS ACTIVITIES IN ALABAMA SINCE 1918, THE STATE
WAS BARRED BY LACHES FROM INVOKING THE REGISTRATION REQUIREMENT IN
1956. 

FN13  THE "FALSE CHARGES" WITH WHICH THE FOURTH CHARGE AGAINST THE
ASSOCIATION IS CONCERNED WERE MADE (AND LATER WITHDRAWN) BY AUTHURINE
LUCY, IN PROCEEDINGS IN THE FEDERAL DISTRICT COURT TO COMPEL OFFICIALS
IN THE UNIVERSITY OF ALABAMA TO VACATE AN ORDER SUSPENDING HER FROM
ATTENDANCE AT CLASSES.   SEE LUCY V. ADAMS, CIV. NO. 652, DECIDED IN
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
ON JANUARY 24, 1957. 

THE FIFTH AND SIXTH CHARGES AGAINST THE ASSOCIATION CONCERN THE
PROCEEDINGS IN THIS CASE, AND WERE ADDED TO THE COMPLAINT, ALONG WITH
THE FOURTH CHARGE, BY AMENDMENT IN 1961. 
..END :






RED BALL MOTOR FREIGHT, INC. V. SHANNON DBA E.&R. SHANNON 377 U.S. 311 


NO. 406.  ARGUED APRIL 28, 1964.  - DECIDED JUNE 1, 1964.* - 219 F.
SUPP. 781, AFFIRMED. 

*TOGETHER WITH NO. 421, UNITED STATES ET AL. V. SHANNON ET AL., DOING
BUSINESS AS E.&R. SHANNON, ALSO ON APPEAL FROM THE SAME COURT. 


APPELLEES ARE DEALERS IN LIVESTOCK AND COMMODITIES IN SAN ANTONIO,
TEXAS, WHO MADE DELIVERIES IN THEIR OWN TRUCKS TO CUSTOMERS IN
LOUISIANA, WHERE THEY BOUGHT SUGAR FOR RESALE IN SAN ANTONIO.  THE
INTERSTATE COMMERCE COMMISSION (ICC) HELD THAT THE BACKHAUL OF SUGAR
WAS FOR-HIRE CARRIAGE NOT EXEMPT FROM ICC REGULATION UNDER SEC 203(C)
OF THE INTERSTATE COMMERCE ACT AS "TRANSPORTATION  ... WITHIN THE
SCOPE, AND IN FURTHERANCE, OF A PRIMARY BUSINESS ENTERPRISE  ...  ."  A
THREE-JUDGE DISTRICT COURT SET ASIDE THE ICC ORDER.  HELD:  SECTION
203(C) DOES NOT PROHIBIT ALL BACKHAULING BUT CODIFIES THE PRIMARY
BUSINESS TEST WHICH EXEMPTS FROM ICC REGULATION AN OPERATOR WHOSE
TRANSPORTATION FUNCTIONS ARE ONLY INCIDENTAL TO ITS PRIMARY
ACTIVITIES.  HERE THE EVIDENCE SHOWED THAT THE BACKHAUL FURTHERED
APPELLEES' PRIMARY GENERAL MERCANTILE BUSINESS AND WAS EXEMPT PRIVATE
CARRIAGE.  PP. 312-321. 

RED BALL MOTOR FREIGHT, INC., ET AL. V. SHANNON ET AL., DOING BUSINESS
AS E.&R. SHANNON. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE INTERSTATE COMMERCE ACT PROVIDES THAT IT IS UNLAWFUL FOR ANY
PERSON ENGAGED IN A BUSINESS OTHER THAN TRANSPORTATION TO "TRANSPORT
PROPERTY BY MOTOR VEHICLE IN INTERSTATE OR FOREIGN COMMERCE FOR
BUSINESS PURPOSES UNLESS SUCH TRANSPORTATION IS WITHIN THE SCOPE, AND
IN FURTHERANCE OF A PRIMARY BUSINESS ENTERPRISE (OTHER THAN
TRANSPORTATION) OF SUCH PERSON."  SEC 293(C), 49 U.S.C. SEC 303(C). 
(FN1)  APPELLEES DEAL IN LIVESTOCK AND COMMODITIES FROM A PLACE OF
BUSINESS IN SAN ANTONIO, TEXAS.  THEY MAKE DELIVERIES IN THEIR OWN
TRUCKS TO CUSTOMERS IN LOUISIANA, AND BUY SUGAR AT SUPREME, LOUISIANA,
WHICH THEY BACKHAUL 525 MILES FOR RESALE TO CUSTOMERS IN SAN ANTONIO. 
THE INTERSTATE COMMERCE COMMISSION HELD THAT THIS BACKHAUL WAS NOT
EXEMPT UNDER SEC 203(C) AS "TRANSPORTATION  ...  WITHIN THE SCOPE, AND
IN FURTHERANCE, OF A PRIMARY BUSINESS ENTERPRISE  ...  " OF APPELLEES,
BUT WAS "CONDUCTED WITH THE PURPOSE OF PROFITING FROM THE
TRANSPORTATION PERFORMED, AND, AS SUCH, CONSTITUTES FOR-HIRE CARRIAGE
FOR WHICH OPERATING AUTHORITY FROM THIS COMMISSION IS REQUIRED."  81
M.C.C.  337, 347.  (FN2)  A THREE-JUDGE COURT IN THE DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS SET ASIDE THE ICC ORDER.  219 F. SUPP.
781.  (FN3)  WE NOTED PROBABLE JURISDICTION.  375 U.S. 901.  WE
AFFIRM. 

ELIMINATE TRANSPORTATION WHICH, THOUGH CARRIED ON IN THE GUISE OF
PRIVATE CARRIAGE, WAS IN EFFECT FOR-HIRE CARRIAGE, AND THUS MIGHT
LAWFULLY BE CARRIED ON ONLY BY AN AUTHORIZED COMMON OR CONTRACT
CARRIER.  BEFORE THE ENACTMENT OF SEC 203(C) THE ICC WAS ABLE TO REACH
SUCH ABUSES BY INTERPRETING SEC 203(A)(17), 49 U.S.C. SEC 303(A)(17),
SO AS TO EXCLUDE SUCH "PSEUDO-PRIVATE" CARRIAGE FROM ITS DEFINITION OF
A "PRIVATE CARRIER OF PROPERTY BY MOTOR VEHICLE" AS A PERSON, NOT A
"COMMON" OR "CONTRACT" CARRIER, WHO TRANSPORTS PROPERTY OF WHICH HE "IS
THE OWNER, LESSEE, OR BAILEE, WHEN SUCH TRANSPORTATION IS FOR THE
PURPOSE OF SALE, LEASE, RENT, OR BAILMENT, OR IN FURTHERANCE OF ANY
COMMERCIAL ENTERPRISE."  MANY OF THE CASES INVOLVED NONAUTHORIZED
CARRIERS IN THE TRANSPORTATION BUSINESS WHO RESORTED TO TRANSPARENT
"BUY-AND-SELL" DEVICES TO EVADE ICC REGULATION.  A TYPICAL BUY-AND-SELL
ARRANGEMENT IS ONE UNDER WHICH THE CARRIER "BUYS" PROPERTY AT A
SHIPPING POINT, TRANSPORTS IT TO A DELIVERY POINT AND THERE "SELLS" IT
TO THE REAL PURCHASER, THE "PROFIT" TO THE CARRIER AMOUNTING TO THE
PRICE OF THE TRANSPORTATION BETWEEN THE TWO POINTS.  (FN4)  SIMILAR
EVASIONS THROUGH THE USE OF SPURIOUS BUY-AND-SELL AGREEMENTS WERE FOUND
IN CASES WHERE PROPERTY WAS TRANSPORTED IN TRUCKS REGULARLY USED BY
NONCARRIER BUSINESSES TO MAKE PICKUPS AND DELIVERIES.  (FN5)  THE ICC
WAS FACED WITH THE NECESSITY OF DETERMINING ON THE FACTS OF EACH CASE
WHETHER THE TRANSPORTATION CONSTITUTED PRIVATE CARRIAGE BEYOND THE
SCOPE OF ICC ECONOMIC REGULATION, OR FOR-HIRE TRANSPORTATION SUBJECT TO
ALL RELEVANT PROVISIONS OF THE ACT.  IN OTHER WORDS, HERE, AS IN UNITED
STATES V. DRUM, 368 U.S. 370, 374, IN WHICH WE DEALT WITH ANOTHER
ASPECT OF THE "PSEUDO-PRIVATE" CARRIAGE PROBLEM, THE ICC HAS ALSO "HAD
TO DECIDE WHETHER A PARTICULAR ARRANGEMENT GIVES RISE TO THAT 'FOR
HIRE' CARRIAGE WHICH IS SUBJECT TO ECONOMIC REGULATION IN THE PUBLIC
INTEREST, OR WHETHER IT IS, IN FACT, PRIVATE CARRIAGE AS TO WHICH
CONGRESS DETERMINED THAT THE NONCARRIER'S INTEREST  ...  SHOULD
PREVAIL." 

IN THE COURSE OF DISCRIMINATING BETWEEN THIS PSEUDO-PRIVATE CARRIAGE
AND THAT TRANSPORTATION WHICH WAS IN FACT IN FURTHERANCE OF A
NONCARRIER BUSINESS, THE ICC DEVELOPED THE SO-CALLED "PRIMARY BUSINESS"
TEST.  THIS TEST WAS FIRST ENUNCIATED BY THE FULL COMMISSION IN LENOIR
CHAIR CO., 51 M.C.C. 65, AFF'D, SUB NOM. BROOKS TRANSPORTATION CO. V.
UNITED STATES, 93 F. SUPP. 517, AFF'D, 340 U.S. 925.  A CHAIR
MANUFACTURER DELIVERED SOME OF ITS PRODUCTS IN ITS OWN TRUCKS. 
WHENEVER POSSIBLE, IT ALSO USED THE VEHICLES TO BACKHAUL MANUFACTURING
MATERIALS FOR USE AND PROCESSING IN ITS OWN PLANT.  THE ICC CONCLUDED,
51 M.C.C., AT 76, THAT THE DELIVERY OF GOODS AND THE BACKHAUL WERE
LAWFUL PRIVATE CARRIAGE BECAUSE UNDERTAKEN "AS A BONA FIDE INCIDENT TO
AND IN FURTHERANCE OF ITS PRIMARY BUSINESS  ...  ."  THE GOVERNING
STANDARD WAS STATED AS FOLLOWS, ID., AT 75: 

"IF THE FACTS ESTABLISH THAT THE PRIMARY BUSINESS OF AN OPERATOR IS
THE SUPPLYING OF TRANSPORTATION FOR COMPENSATION THEN THE CARRIER'S
STATUS IS ESTABLISHED THOUGH THE OPERATOR MAY BE THE OWNER, AT THE
TIME, OF THE GOODS TRANSPORTED AND MAY BE TRANSPORTING THEM FOR THE
PURPOSE OF SALE  ...  .  IF, ON THE OTHER HAND, THE PRIMARY BUSINESS OF
AN OPERATOR IS FOUND TO BE MANUFACTURING OR SOME OTHER NONCARRIER
COMMERCIAL ENTERPRISE, THEN IT MUST BE DETERMINED WHETHER THE MOTOR
OPERATIONS ARE IN BONA FIDE FUTHERANCE OF THE PRIMARY BUSINESS OR
WHETHER THEY ARE CONDUCTED AS A RELATED OR SECONDARY ENTERPRISE WITH
THE PURPOSE OF PROFITING FROM THE TRANSPORTATION PERFORMED.  IN OUR
OPINION, THEY CANNOT BE BOTH." 

THE ICC BELIEVED, HOWEVER, THAT SEC 203(A)(17) WAS NOT SUFFICIENTLY
EXPLICIT, PARTICULARLY SINCE DECISIONS OF SOME LOWER COURTS AFTER
BROOKS RAISED DOUBTS WHETHER A TRUCK OPERATOR COULD BE FOUND TO BE AN
UNAUTHORIZED "FOR-HIRE" CARRIER IN THE ABSENCE OF SOME AFFIRMATIVE
SHOWING THAT HIS OPERATIONS BROUGHT HIM WITHIN THE DEFINITIONS OF
COMMON OR CONTRACT CARRIAGE.  (FN6)  CONSEQUENTLY THE COMMISSION SOUGHT
ADDITIONAL LEGISLATION.  (FN7)  THE ORIGINAL ICC BILL IN THIS AREA
WOULD HAVE AMENDED THE DEFINITION OF "PRIVATE CARRIER" IN SEC
203(A)(17) TO PROHIBIT THE BUY-AND-SELL DEVICE EMPLOYED BY PSEUDO
PRIVATE CARRIERS AS A SUBTERFUGE TO AVOID REGULATION.  SEE S. 1677,
H.R. 5825, 85TH CONG., 1ST SESS.  THIS WAS WITHDRAWN, HOWEVER, IN FAVOR
OF A MORE BROADLY PHRASED PROVISION, SPONSORED BY THE TRANSPORTATION
ASSOCIATION OF AMERICA, WHICH ENCOMPASSED NOT ONLY BUY-AND-SELL
DEVICES, BUT ALSO SIMILAR SUBTERFUGES WHICH MIGHT BE EMPLOYED TO ENGAGE
IN UNAUTHORIZED FOR-HIRE TRANSPORTATION.  (FN8)  THE SECOND CLAUSE OF
SEC 203(C) IS SUBSTANTIALLY THE TAA PROPOSAL. 

THE 1958 AMENDMENT APPEARS ON ITS FACE TO CODIFY THE PRIMARY BUSINESS
TEST AS THE STANDARD FOR DETERMINING WHETHER A PARTICULAR CARRIER IS
ENGAGED IN A PRIVATE OR FOR-HIRE OPERATION.  THE APPELLANTS ARGUE,
HOWEVER, THAT THE AMENDMENT WAS INTENDED TO IMPOSE A BROADER LIMITATION
IN THE CASE OF BACKHAUL OPERATIONS OF THE KIND ENGAGED IN BY
APPELLEES.  THE UNITED STATES URGES IN ITS BRIEF THAT CONGRESS IN 1958
WAS PARTICULARLY CONCERNED WITH THE DIVERSION OF TRAFFIC FROM REGULATED
CARRIERS BY BACKHAULING OPERATIONS, AND THAT ONE OBJECT OF THE 1958
AMENDMENT WAS "TO MAKE PLAIN THAT THE PURCHASE AND SALE OF GOODS SOLELY
TO TAKE ADVANTAGE OF AVAILABLE BACKHAUL CAPACITY CANNOT QUALIFY AS A
'PRIMARY BUSINESS ENTERPRISE (OTHER THAN TRANSPORTATION).'"  WE
UNDERSTAND THIS ARGUMENT TO BE THAT CONGRESS IN EFFECT ENACTED A PER SE
TEST OUTLAWING TRUCKING OPERATIONS LIMITED TO BACKHAUL CAPACITY WITHOUT
INQUIRY INTO WHETHER THAT OPERATION WAS UNDERTAKEN PURSUANT TO A BONA
FIDE NONCARRIER BUSINESS ENTERPRISE.  WE FIND NO SUPPORT IN EITHER THE
WORDS OF THE AMENDMENT OR ITS LEGISLATIVE HISTORY FOR PUTTING THAT
GLOSS UPON THE AMENDMENT.  ON THE CONTRARY, WE ARE PERSUADED THAT
CONGRESS MEANT ONLY TO CODIFY THE PRIMARY BUSINESS TEST WHICH, AS
APPLIED BY THE ICC, REQUIRES AN ANALYSIS OF THE BACKHAUL OPERATION IN
THE FACTUAL SETTING OF EACH CASE. 

THE LEGISLATIVE HISTORY FULLY SUPPORTS THIS VIEW.  THE ICC CHAIRMAN,
SPEAKING IN SUPPORT OF THE TAA AMENDMENT, EXPRESSLY STATED THAT, IN HIS
VIEW, ITS EFFECT WOULD BE TO "INCORPORATE THE PRIMARY BUSINESS TEST
INTO THE STATUTE."  (FN9)  SIMILARLY, THE PRESIDENT OF TAA, SPEAKING
DIRECTLY TO THE BACKHAUL PROBLEM, SAID THAT "OUR PROPOSAL  ... WOULD
AFFECT  ...  THE CARRIER WHO DELIVERS HIS OWN GOODS IN ONE DIRECTION,
AS A LEGAL PRIVATE CARRIER, BUT THEN RESORTS TO THE BUY-AND-SELL
PRACTICE TO GET A RETURN LOAD."  (FN10)  THE SENATE AND HOUSE REPORTS,
WHILE LESS CRYSTAL CLEAR, NEVERTHELESS REVEAL NO PURPOSE BEYOND
CODIFICATION OF THE BROOKS TEST.  THUS THE SENATE REPORT STATES THAT
THE AMENDMENT "ACCURATELY REFLECTS THE HOLDING IN THE BROOKS CASE." 
(FN11)  ALTHOUGH THE HOUSE REPORT INCLUDES A DISCUSSION OF THE BACKHAUL
PROBLEM IN LANGUAGE WHICH TRACKS THE STATEMENT IN THE ICC 1953 ANNUAL
REPORT - WHERE THE COMMISSION FIRST DIRECTED THE ATTENTION OF CONGRESS
TO THE PROBLEM OF BUY-AND-SELL ARRANGEMENTS (FN12) - THE HOUSE REPORT
CONCLUDES:  "THERE IS NO INTENTION ON THE PART OF THIS COMMITTEE IN ANY
WAY TO JEOPARDIZE OR INTERFERE WITH BONA FIDE PRIVATE CARRIAGE, AS
RECOGNIZED IN THE BROOKS CASE."  (FN13)  MOREOVER, THE MANAGERS OF THE
BILLS IN BOTH SENATE AND HOUSE GAVE ASSURANCES THAT THE OBJECT OF THE
AMENDMENT WAS TO INCORPORATE THE PRIMARY BUSINESS TEST INTO POSITIVE
LAW.  (FN14)  NO APPLICATION OF THE PRIMARY BUSINESS TEST BY THE ICC OR
THE COURTS GAVE CONCLUSIVE EFFECT TO BACKHAULING.  THE CRITICAL
DETERMINATION MADE IN EACH CASE WAS BETWEEN SPURIOUS BUY-AND-SELL
ARRANGEMENTS, WHETHER OR NOT AS PART OF A BACKHAUL, AND A TRUE
WHOLESALING OPERATION UTILIZING THE OPERATOR'S OWN TRUCKS.  BACKHAULS
WERE TREATED AS MERELY ONE ASPECT OF THE BUY-AND-SELL PROBLEM, SINCE
THE PRESENCE OF BACKHAUL CAPACITY PRESENTS A SPECIAL TEMPTATION TO
INDULGE IN PSEUDO-PRIVATE CARRIAGE. 

WE THEREFORE CONCLUDE THAT SEC 203(C) MERELY CODIFIES THE PRIMARY
BUSINESS TEST, AND EMBODIES NO OUTRIGHT PROHIBITION OF BACKHAULING
PRACTICES.  THE STATUTORY SCHEME RECOGNIZES THAT MERE AVAILABILITY AND
USE OF BACKHAUL CAPACITY MAY IN PARTICULAR CASES BE COMPLETELY
CONSISTENT WITH THE BONA FIDE CONDUCT OF A NONCARRIER BUSINESS.  THUS
THE QUESTION IN THIS CASE IS A NARROW ONE: WHETHER, APPLYING THE
STANDARDS DEVELOPED UNDER THE PRIMARY BUSINESS TEST, APPELLEES'
BACKHAULING OF SUGAR WAS WITHIN THE SCOPE, AND IN FURTHERANCE, OF A
PRIMARY, NONCARRIER BUSINESS. 

IN DEVELOPING AND APPLYING THE PRIMARY BUSINESS STANDARD, THE ICC HAS
ELABORATED CRITERIA CHARACTERISTIC OF THE SPURIOUS BUY-AND-SELL
DEVICE.  AMONG THESE ARE THE LARGE INVESTMENT OF ASSETS OR PAYROLL IN
TRANSPORTATION OPERATIONS; (FN15) NEGOTIATING THE SALE OF GOODS
TRANSPORTED IN ADVANCE OF DISPATCHING A TRUCK TO PICK THEM UP; (FN16)
DIRECT DELIVERY OF THE TRANSPORTED GOODS FROM THE TRUCK TO THE ULTIMATE
BUYER, RATHER THAN FROM WAREHOUSED STOCKS; (FN17) SOLICITATION OF THE
ORDER BY THE SUPPLIER RATHER THAN THE TRUCK OWNER; (FN18) AND INCLUSION
IN THE SALES PRICE OF AN AMOUNT TO COVER TRANSPORTATION COSTS.  (FN19) 

WE ARE NOT PERSUADED FROM OUR EXAMINATION OF THE RECORD THAT THERE IS
SUFFICIENT EVIDENCE TO SUPPORT THE ICC'S CONCLUSION THAT THE APPELLEES'
SUGAR OPERATION WAS FOR-HIRE TRANSPORTATION AND NOT TRANSPORTATION
WITHIN THE SCOPE, AND IN FURTHERANCE, OF APPELLEES' NONCARRIER BUSINESS
ENTERPRISE.  THE ICC FOUND THAT APPELLEES "HAVE LONG BEEN BUYING AND
SELLING CERTAIN COMMODITIES AND IN CONNECTION THEREWITH TRANSPORTING
THEM TO PURCHASERS, IN BONA FIDE FURTHERANCE OF THEIR PRIMARY BUSINESS,
AS A DEALER IN THOSE COMMODITIES."  81 M.C.C., AT 345.  THE ICC FOUND
FURTHER THAT "THE MORE USUAL ARRANGEMENT UNDER WHICH APPELLEES OPERATE
...  APPEARS TO BE ONE IN WHICH THE APPELLEES HAVE NO PREEXISTING SUGAR
ORDER, BUT BUY WITH THE INTENTION OF SELLING LATER EITHER EN ROUTE OR
AFTER THE TRANSPORTATION IS ACCOMPLISHED.  THIS PROCEDURE IS ORDINARILY
COORDINATED WITH A BACKHAUL, AND THE PURPOSE OF THEIR SUGAR DEALINGS IS
THE GENERATION OF SUGAR SHIPMENTS WHICH THEY CAN TRANSPORT AS RETURN
LADING FOR THEIR TRUCKS WHICH ARE MOVING IN THE OPPOSITE DIRECTION." 
81 M.C.C., AT 346.  BUT THESE FINDINGS, ON THIS RECORD, ARE CONSISTENT
WITH AN OPERATION "WITHIN THE SCOPE, AND IN FURTHERANCE, OF A PRIMARY
BUSINESS ENTERPRISE."  APPELLEES BEGAN THEIR BUSINESS IN 1934 AS
DEALERS IN LIVESTOCK.  THEY GRADUALLY ADDED A FEED MILL AND THE BUYING
AND SELLING OF CORN, OATS, WHEAT, BRAN, MOLASSES, SALT AND FERTILIZER. 
THEY ADDED SUGAR IN 1954.  MOREOVER, IN ADDITION TO THE ABSENCE OF THE
ELEMENT - USUALLY FOUND IN SPURIOUS BUY-AND-SELL ARRANGEMENTS - OF
OBTAINING ORDERS FOR A COMMODITY (IN THIS CASE SUGAR) BEFORE PURCHASING
IT, OTHER INDICIA ARE ABSENT.  APPELLEES' ASSETS ARE NOT IN LARGE PART
COMPOSED OF TRANSPORTATION FACILITIES, NOR IS TRANSPORTATION A MAJOR
ITEM OF EXPENSE; APPELLEES BEAR THE FULL RISK OF DAMAGE IN TRANSIT AND,
SINCE THEY SELL AT MARKET PRICE, ALSO OF LOSS IN VALUE DUE TO PRICE
CHANGES; THEY BUY THE SUGAR ON CREDIT WITH A DISCOUNT FOR PAYMENT IN 10
DAYS, AND SELL ON THE SAME TERMS; THEIR SUGAR ACCOUNTS RECEIVABLE AT
THE DATE OF HEARING EXCEEDED $10,000, AND AMOUNTED TO $20,000 OR
$30,000 DURING THE PREVIOUS YEAR.  IT IS TRUE THAT THEY WAREHOUSED ONLY
A SMALL STOCK OF SUGAR AND THAT GENERALLY THE TRUCKS DELIVERED THE
SUGAR DIRECTLY TO BUYERS UPON, OR WITHIN A DAY OR TWO AFTER, ARRIVAL IN
SAN ANTONIO.  APPELLEES OFFERED AN ENTIRELY REASONABLE EXPLANATION FOR
THIS, HOWEVER:  SUGAR IS A PERISHABLE COMMODITY, THE PRESERVATION OF
WHICH APPARENTLY REQUIRES AIR CONDITIONING FACILITIES WITH WHICH THEIR
WAREHOUSE IS NOT EQUIPPED; THE ICC OFFERED NOTHING TO THE CONTRARY. 
AND THE ICC OFFERED NO EVIDENCE THAT OTHER SUGAR DEALERS IN SAN ANTONIO
CONDUCTED THEIR BUSINESSES DIFFERENTLY FROM APPELLEES.  IT IS ALSO TRUE
THAT SINCE THE MOTOR CARRIER RATE FOR TRANSPORTING SUGAR FROM SUPREME
IS 69 CENTS, AND THE RAIL RATE $1.09 PER HUNDRED POUNDS, APPELLEES
COULD NOT HAVE CONDUCTED THE SUGAR BUSINESS BUT FOR THE AVAILABILITY OF
THE BACKHAUL CAPACITY OF THEIR TRUCKS.  THIS SHOWS NO MORE THAN THAT
APPELLEES WERE ABLE TO MAKE EFFICIENT USE OF THEIR EQUIPMENT; ON THESE
FACTS IT DOES NOT PROVE, AS THE ICC FOUND, THAT THE "TRANSPORTATION
...  IS, WITH RESPECT TO THEIR PRIMARY BUSINESS OF BUYING AND SELLING
LIVESTOCK AND CERTAIN OTHER COMMODITIES, A RELATED OR SECONDARY
ENTERPRISE CONDUCTED WITH THE PURPOSE OF PROFITING FROM THE
TRANSPORTATION PERFORMED  ...  ."  81 M.C.C., AT 347.  WE AGREE WITH
THE DISTRICT COURT THAT, RATHER, "THE RECORD CLEARLY INDICATES THAT
APPELLEES ARE IN A GENERAL MERCANTILE BUSINESS BUYING AND SELLING MANY
ITEMS, INCLUDING SUGAR."  219 F. SUPP., AT 782.  AS SUCH, ON THE FACTS
SHOWN, THEIR PURCHASE OF SUGAR AT SUPREME TO PROVIDE A BACKHAUL IN
CONNECTION WITH OUTBOUND MOVEMENTS OF LIVESTOCK AND OTHER COMMODITIES
FROM SAN ANTONIO IS WITHIN THE SCOPE, AND IN FURTHERANCE, OF THEIR
PRIMARY GENERAL MERCANTILE BUSINESS ENTERPRISE.  AFFIRMED. 

FN1  SECTION 203(C), AS ADDED IN 1957, 71 STAT. 411, PROVIDED IN
PERTINENT PART: 

"  ...  NO PERSON SHALL ENGAGE IN ANY FOR-HIRE TRANSPORTATION
BUSINESS BY MOTOR VEHICLE, IN INTERSTATE OR FOREIGN COMMERCE  ...
UNLESS THERE IS IN FORCE WITH RESPECT TO SUCH PERSON A CERTIFICATE OR A
PERMIT ISSUED BY THE COMMISSION AUTHORIZING SUCH TRANSPORTATION." 

IN 1958, 72 STAT. 574, THE SECTION WAS AMENDED TO ADD THE PROVISION
HERE INVOLVED PROVIDING: 

"NOR SHALL ANY PERSON ENGAGED IN ANY OTHER BUSINESS ENTERPRISE
TRANSPORT PROPERTY BY MOTOR VEHICLE IN INTERSTATE OR FOREIGN COMMERCE
FOR BUSINESS PURPOSES UNLESS SUCH TRANSPORTATION IS WITHIN THE SCOPE,
AND IN FURTHERANCE, OF A PRIMARY BUSINESS ENTERPRISE (OTHER THAN
TRANSPORTATION) OF SUCH PERSON." 

FN2 THE 1957 VERSION OF SEC 203(C) WAS ENACTED AFTER THE EXAMINER
SUBMITTED HIS REPORT BUT AS AMENDED IN 1958 WAS PART OF THE INTERSTATE
COMMERCE ACT WHEN DIVISION 1 OF THE COMMISSION SERVED ITS REPORT. 

FN3  APPELLEES' ACTION WAS BROUGHT PURSUANT TO 28 U.S.C. SECS 1336,
1398.  THE STATUTORY THREE-JUDGE COURT WAS CONVENED UNDER 28 U.S.C. SEC
2325. 

FN4  SEE, E.G., LYLE H. CARPENTER, 2 M.C.C. 85; B.E. FARNSWORTH, 4
M.C.C. 164; THOMAS STANLEY REDDING, 7 M.C.C. 608; ICC V. TANK CAR OIL
CORP., 151 F.2D 834 (C.A. 5TH CIR.). 

FN5  SEE, E.G., T.J. MCBROOM, 1 M.C.C. 425; TRIANGLE MOTOR CO., 2
M.C.C. 485.  CF. CONGOLEUM-NAIRN, INC., 2 M.C.C. 237. 

FN6  SEE, E.G., ICC V. WOODALL FOOD PRODS.  CO., 207 F.2D 517 (C.A.
5TH CIR.); TAYLOR V. ICC, 209 F.2D 353 (C.A. 9TH CIR.).  SEE THE
DISCUSSION OF TAYLOR IN THE COMMISSION'S SIXTY-EIGHTH ANNUAL REPORT
(1954), P. 82. 

FN7  THE COMMISSION PRESSED FOR AMENDMENTS IN ITS ANNUAL REPORTS FROM
1953 THROUGH 1957: 1953 REPORT, P. 55; 1954 REPORT, P. 5; 1955 REPORT,
P. 99; 1956 REPORT, P. 2; 1957 REPORT, PP. 137-138. 

FN8  IN AMENDING SEC 203(C) RATHER THAN THE DEFINITIONAL SECTIONS,
THE TAA PROPOSAL ALSO MET THE PROTESTS OF PRIVATE CARRIERS WHO OPPOSED
ICC'S PROPOSAL ON THE GROUND THAT IT MIGHT BE CONSTRUED TO THROW DOUBT
ON THE BROOKS TEST, AND UNDULY RESTRICT THE SCOPE OF PRIVATE CARRIAGE. 
SEE REMARKS OF FRAZOR T. EDMONDSON, PRIVATE TRUCK COUNCIL OF AMERICA,
HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE ON S. 1384, 85TH CONG., 1ST SESS., 163 (1957);
REMARKS OF R.J. VAN LIEW, PRIVATE CARRIER CONFERENCE, AMERICAN TRUCKING
ASSOCIATIONS, ID., AT 275. 

FN9  SEE REMARKS OF CHAIRMAN CLARKE, HEARINGS BEFORE A SUBCOMMITTEE
OF THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON S. 1384,
85TH CONG., 1ST SESS., 13, 19 (1957). 

FN10  SEE STATEMENT OF MR. BAKER, PRESIDENT, TRANSPORTATION
ASSOCIATION OF AMERICA, ID., AT 244, 246. 

FN11  S. REP. NO. 1647, 85TH CONG., 2D SESS., 5 (1958). 

FN12 IN ITS 1953 ANNUAL REPORT THE COMMISSION SAID (P. 55): 

"MERCHANDISING BY MOTORTRUCK, WHETHER ACTUAL OR PRETENDED, OVER LONG
DISTANCES IS INCREASING TO SUCH AN EXTENT THAT IT IS BECOMING A MAJOR
FACTOR IN THE TRANSPORTATION OF FREIGHT BETWEEN DISTANT POINTS. 
MANUFACTURERS AND MERCANTILE ESTABLISHMENTS, WHICH DELIVER IN THEIR OWN
TRUCKS ARTICLES WHICH THEY MANUFACTURE OR SELL, ARE INCREASINGLY
PURCHASING MERCHANDISE AT OR NEAR THEIR POINT OF DELIVERY AND
TRANSPORTING SUCH ARTICLES TO THEIR OWN TERMINAL FOR SALE TO OTHERS. 
SUCH TRANSPORTATION IS PERFORMED FOR THE PURPOSE OF RECEIVING
COMPENSATION FOR THE OTHERWISE EMPTY RETURN OF THEIR TRUCKS.  SOMETIMES
THE PURCHASE AND SALE IS A BONA FIDE MERCHANDISING VENTURE.  IN OTHER
CASES, ARRANGEMENTS ARE MADE WITH THE CONSIGNEE OF SUCH MERCHANDISE FOR
THE 'BUY-AND-SELL' ARRANGEMENT IN ORDER THAT THE CONSIGNEE MAY RECEIVE
TRANSPORTATION AT A REDUCED COST."  COMPARE H.R. REP. NO. 1922, 85TH
CONG., 2D SESS., 18 (1958). 

FN13  SEE ID., AT 19. 

FN14  SEE 104 CONG. REC. 12535-12536 (1958)(HOUSE); 104 CONG. REC.
10818 (1958)(SENATE). 

FN15  SEE VIRGIL P. STUTZMAN, 81 M.C.C. 223, 226; JOSEPH V. HOFER, 84
M.C.C. 527, 540. 

FN16  SEE LYLE H. CARPENTER, 2 M.C.C. 85, 86; THOMAS STANLEY REDDING,
7 M.C.C. 608, 609; JAY CEE TRANSPORT CO., 68 M.C.C. 758, 759; CHURCH
POINT WHOLESALE BEVERAGE CO., 82 M.C.C.  457, 459, AFF'D, SUB NOM.
CHURCH POINT WHOLESALE BEVERAGE CO. V. UNITED STATES, 200 F. SUPP.  508
(D.C.W.D. LA.). 

FN17  SEE L.A. WOITISHEK, 42 M.C.C. 193; JAY CEE TRANSPORT CO.,
SUPRA; WILLIAM STEWART, 89 M.C.C. 281, 286. 

FN18  SEE SUBLER TRANSFER, INC., 79 M.C.C. 561, 565; RIGGS DAIRY
EXPRESS, INC., 78 M.C.C.  574, 575-576; DONALD L. WILSON, 82 M.C.C.
651, 661. 

FN19  SEE RIGGS DAIRY EXPRESS, INC., SUPRA. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE
STEWART AND MR. JUSTICE WHITE, JOIN, DISSENTING. 

I AGREE WITH THE COURT "THAT SEC 203(C) MERELY CODIFIES THE PRIMARY
BUSINESS TEST," ANTE, AT 318, ENUNCIATED BY THE COMMISSION IN THE
BROOKS CASE.*  I ALSO AGREE THAT "THE PRIMARY BUSINESS TEST  ...  , AS
APPLIED BY THE ICC, REQUIRES AN ANALYSIS OF THE BACKHAUL OPERATION IN
THE FACTUAL SETTING OF EACH CASE."  ANTE, AT 317. 

*LENOIR CHAIR CO., 51 M.C.C. 65, AFF'D, SUB NOM. BROOKS
TRANSPORTATION CO., INC., V. UNITED STATES, 93 F. SUPP. 517, AFF'D, 340
U.S. 925. 

THIS IS ALL THAT WE NEED AND SHOULD DECIDE.  THE COURT ERRS, IN MY
VIEW, IN DECIDING THE PURELY FACTUAL QUESTION OF "WHETHER, APPLYING THE
STANDARDS DEVELOPED UNDER THE PRIMARY BUSINESS TEST, APPELLEES'
BACKHAULING OF SUGAR WAS WITHIN THE SCOPE, AND IN FURTHERANCE, OF A
PRIMARY, NONCARRIER BUSINESS."  ANTE, AT 318. 

THE PRIMARY RESPONSIBILITY FOR GRANTING OR DENYING ENFORCEMENT OF
COMMISSION ORDERS IS IN THE DISTRICT COURTS AND NOT IN THIS COURT.  28
U.S.C. SEC 1336; CF. LABOR BOARD V. PITTSBURGH STEAMSHIP CO., 340 U.S.
498, 502.  THE DISTRICT COURT IN ENJOINING ENFORCEMENT OF THE
COMMISSION'S ORDER IN THIS CASE DID NOT REFER EXPLICITLY OR IMPLICITLY
TO SEC 203(C) OF THE ACT.  IT DID NOT CITE ANY CASES ENUNCIATING THE
"PRIMARY BUSINESS TEST" AS A BASIS FOR ITS DECISION.  MOREOVER, THE
DISTRICT COURT DID NOT DISCUSS THE FACTS UPON WHICH THE COMMISSION
BASED ITS DETERMINATION THAT APPELLEES' BACKHAUL TRANSPORTATION OF
SUGAR WAS NOT WITHIN THE SCOPE AND IN FURTHERANCE OF A PRIMARY BUSINESS
ENTERPRISE OTHER THAN TRANSPORTATION.  SEE 219 F. SUPP.  781; COMPARE
UNITED STATES V. DRUM, 368 U.S. 370, 385. 

HAVING DETERMINED, AS THE COURT DOES, THAT SEC 203(C) CODIFIES THE
PRIMARY BUSINESS TEST, I WOULD REMAND THE CASE TO THE DISTRICT COURT
FOR THAT COURT TO DECIDE THE ISSUE OF UNSUBSTANTIALITY OF THE EVIDENCE
UNDER THE PROPER TEST.  UNDER THIS DISPOSITION OF THE CASE, THE
DISTRICT COURT WOULD HAVE TO BE MINDFUL THAT THIS IS THE KIND OF CASE
WHICH "BELONGS TO THE USUAL ADMINISTRATIVE ROUTINE" OF THE AGENCY, GRAY
V. POWELL, 314 U.S. 402, 411, AND THAT THE COMMISSION'S APPLICATION OF
THE STATUTORY TEST TO THE SPECIFIC FACTS OF THIS CASE "IS TO BE
ACCEPTED IF IT HAS 'WARRANT IN THE RECORD' AND A REASONABLE BASIS IN
LAW."  LABOR BOARD V. HEARST PUBLICATIONS, INC., 322 U.S. 111, 131;
UNITED STATES V. DRUM, SUPRA, AT 386. 

MR. JUSTICE WHITE, DISSENTING. 

I JOIN THE DISSENTING OPINION OF MY BROTHER GOLDBERG.  I ADD THAT THE
COURT HAS FAILED TO DEMONSTRATE HOW APPELLEES' SUGAR BUSINESS QUALIFIES
AS A "PRIMARY" BUSINESS WHEN IT CLEARS ONLY 35 CENTS PER 100 POUNDS OF
SUGAR OVER AND ABOVE THE COST OF THE SUGAR AT SUPREME, LOUISIANA.  THIS
IS LESS THAN THE NORMAL COSTS OF TRANSPORTATION FROM SUPREME TO SAN
ANTONIO.  NO ONE WITHOUT BACKHAUL CAPACITY COULD MAKE A VIABLE BUSINESS
OUT OF SELLING SUPREME SUGAR IN THE SAN ANTONIO MARKET AND APPELLEES
ADMIT THAT THEY ARE "BACKHAULING TO MAKE A PROFIT."  I THEREFORE CANNOT
VIEW THE SUGAR BUSINESS AS A BONA FIDE PRIMARY BUSINESS TO WHICH A
PRIVATE TRANSPORTATION OPERATION IS ONLY AN INCIDENT.  IT WOULD BE MORE
APPROPRIATE TO SAY THAT THIS CATCH-AS-CATCH-CAN SUGAR BUSINESS IS
WHOLLY INCIDENTAL TO AN OTHERWISE EMPTY BACKHAUL. 
..END :












HOSTETTER V. IDLEWILD BON VOYAGE LIQUOR CORP. 377 U.S. 324 


NO. 116.  ARGUED MARCH 23, 1964.  - DECIDED JUNE 1, 1964.  - 212 F.
SUPP. 376, AFFIRMED. 


APPELLEE, WHO UNDER FEDERAL BUREAU OF CUSTOMS SUPERVISION PURCHASES
BOTTLED INTOXICANTS AT WHOLESALE OUTSIDE NEW YORK, BRINGS THEM INTO THE
STATE AND AT AN AIRPORT THERE SELLS THEM AT RETAIL FOR DELIVERY ABROAD
TO INTERNATIONAL AIRLINE TRAVELERS, BROUGHT THIS ACTION FOR AN
INJUNCTION AND DECLARATORY JUDGMENT AGAINST STATE LIQUOR AUTHORITY
MEMBERS WHO CLAIMED THAT APPELLEE'S BUSINESS VIOLATED STATE LAW.  AFTER
LONG PROCEDURAL DELAYS, A THREE-JUDGE DISTRICT COURT GRANTED THE
REQUESTED RELIEF.  HELD: 

1.  ABSTENTION, WHICH IS NOT AUTOMATICALLY REQUIRED, AND WHICH HAD
BEEN REQUESTED BY NEITHER PARTY, WAS NOT WARRANTED IN THIS PROTRACTED
LITIGATION, THERE BEING NO DANGER THAT A FEDERAL DECISION WOULD DISRUPT
STATE REGULATION.  PP. 328-329. 

2.  THOUGH THE STATE HAS POWER UNDER THE TWENTY-FIRST AMENDMENT TO
REGULATE TRANSPORTATION THROUGH ITS TERRITORY OF INTOXICANTS TO AVOID
THEIR DIVERSION INTO DOMESTIC CHANNELS, THE COMMERCE CLAUSE DEPRIVES
THE STATE OF POWER TO PREVENT TRANSACTIONS SUPERVISED BY THE BUREAU OF
CUSTOMS INVOLVING INTOXICANTS FOR DELIVERY TO CONSUMERS IN FOREIGN
COUNTRIES.  PP. 329-334. 

HOSTETTER ET AL. V. IDLEWILD BON VOYAGE LIQUOR CORP. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE TWENTY-FIRST AMENDMENT TO THE CONSTITUTION, WHICH REPEALED THE
EIGHTEENTH, PROVIDES IN ITS SECOND SECTION THAT "THE TRANSPORTATION OR
IMPORTATION INTO ANY STATE, TERRITORY, OR POSSESSION OF THE UNITED
STATES FOR DELIVERY OR USE THEREIN OF INTOXICATING LIQUORS, IN
VIOLATION OF THE LAWS THEREOF, IS HEREBY PROHIBITED."  THIS APPEAL
REQUIRES CONSIDERATION OF THE RELATIONSHIP OF THIS PROVISION OF THE
TWENTY-FIRST AMENDMENT TO OTHER PROVISIONS OF THE CONSTITUTION,
PARTICULARLY THE COMMERCE CLAUSE.  (FN1) 

THE APPELLEE (IDLEWILD) IS ENGAGED IN THE BUSINESS OF SELLING BOTTLED
WINES AND LIQUORS TO DEPARTING INTERNATIONAL AIRLINE TRAVELERS AT THE
JOHN F. KENNEDY AIRPORT IN NEW YORK.  ITS PLACE OF BUSINESS IS LEASED
FROM THE PORT OF NEW YORK AUTHORITY FOR USE SOLELY AS "AN OFFICE IN
CONNECTION WITH THE SALE  ...  OF IN-BOND WINES AND LIQUORS."  IDLEWILD
ACCEPTS ORDERS ONLY FROM TRAVELERS WHOSE TICKETS AND BOARDING CARDS
INDICATE THEIR IMMINENT DEPARTURE.  A CUSTOMER GETS NOTHING BUT A
RECEIPT AT THE TIME HE GIVES HIS ORDER AND MAKES PAYMENT.  THE LIQUOR
WHICH HE ORDERS IS TRANSFERRED DIRECTLY TO THE DEPARTING AIRCRAFT ON
DOCUMENTS APPROVED BY UNITED STATES CUSTOMS, AND IS NOT DELIVERED TO
THE CUSTOMER UNTIL HE ARRIVES AT HIS FOREIGN DESTINATION. 

THE BEVERAGES SOLD BY IDLEWILD ARE PURCHASED BY IT FROM BONDED
WHOLESALERS LOCATED OUTSIDE NEW YORK STATE WHO DEAL IN TAX-FREE LIQUORS
FOR EXPORT.  MERCHANDISE ORDERED BY IDLEWILD IS WITHDRAWN FROM BONDED
WAREHOUSES ON APPROVED CUSTOMS DOCUMENTS, COPIES OF WHICH ARE MAILED BY
THE WHOLESALERS BOTH TO IDLEWILD AND TO THE UNITED STATES CUSTOMS
OFFICE AT THE AIRPORT.  A THIRD SEALED COPY OF THE DOCUMENT IS GIVEN TO
THE BONDED TRUCKER WHO DELIVERS IT TO THE CUSTOMS OFFICE AT THE AIRPORT
AFTER HE HAS TRANSPORTED THE SHIPMENT TO IDLEWILD'S PLACE OF BUSINESS. 
THE CONTENTS OF EACH SHIPMENT ARE RECORDED BY IDLEWILD, AS ARE
WITHDRAWALS FROM INVENTORY WHENEVER A SALE IS MADE, AND WHEN AN ENTIRE
SHIPMENT HAS BEEN SOLD, THESE RECORDS ARE TURNED OVER TO CUSTOMS
OFFICIALS.  IDLEWILD'S RECORDS AND ITS PHYSICAL INVENTORY, AS WELL AS
THE TRANSFER OF THE LIQUOR FROM THE BONDED TRUCKS TO IDLEWILD'S
PREMISES AND FROM THOSE PREMISES TO THE DEPARTING AIRCRAFT, ARE AT ALL
TIMES OPEN TO INSPECTION BY THE BUREAU OF CUSTOMS.  BEFORE IDLEWILD
COMMENCED THESE BUSINESS OPERATIONS IN 1960, THE BUREAU OF CUSTOMS
INSPECTED ITS PLACE OF BUSINESS AND EXPLICITLY APPROVED ITS PROPOSED
METHOD OF OPERATIONS. 

IDLEWILD COMMENCED DOING BUSINESS IN THE SPRING OF 1960.  A FEW WEEKS
LATER, THE NEW YORK STATE LIQUOR AUTHORITY, WHOSE MEMBERS ARE THE
APPELLANTS IN THIS CASE, INFORMED IDLEWILD, UPON THE ADVICE OF THE
ATTORNEY GENERAL OF NEW YORK, THAT ITS BUSINESS WAS ILLEGAL UNDER THE
PROVISIONS OF THE NEW YORK ALCOHOLIC BEVERAGE CONTROL LAW, BECAUSE THE
BUSINESS WAS UNLICENSED AND UNLICENSABLE UNDER THAT LAW.  (FN2)
IDLEWILD THEREUPON BROUGHT THE PRESENT ACTION FOR AN INJUNCTION
RESTRAINING THE APPELLANTS FROM INTERFERING WITH ITS BUSINESS, AND FOR
A JUDGMENT DECLARING THAT THE PROVISIONS OF THE NEW YORK STATUTE, AS
APPLIED TO ITS BUSINESS, WERE REPUGNANT TO THE COMMERCE CLAUSE OF THE
CONSTITUTION, AND, UNDER THE SUPREMACY CLAUSE, TO THE TARIFF ACT OF
1930, UNDER WHICH THE BUREAU OF CUSTOMS HAD APPROVED IDLEWILD'S
BUSINESS OPERATIONS.  (FN3) 

AFTER LENGTHY PROCEDURAL DELAYS,  (FN4) A THREE-JUDGE DISTRICT COURT
GRANTED THE REQUESTED RELIEF.   212 F. SUPP. 376.  THE COURT EXPRESSED
DOUBT THAT THE NEW YORK ALCOHOLIC BEVERAGE CONTROL LAW WAS INTENDED TO
APPLY TO A BUSINESS SUCH AS THAT CARRIED ON BY IDLEWILD, BOTH BECAUSE
OF THE MANIFEST IRRELEVANCE TO SUCH A BUSINESS OF MANY OF THE LAW'S
PROVISIONS,  (FN5) AND BECAUSE THE NEW YORK COURTS HAD HELD THAT THE
LAW WAS INAPPLICABLE TO THE SALE OF LIQUOR IN THE FREE TRADE ZONE OF
THE PORT OF NEW YORK.  DURING V. VALENTE, 267 APP. DIV. 383, 46
N.Y.S.2D 385.  SEE ALSO ROSENBLUM V. FRANKEL, 279 APP. DIV. 66, 108
N.Y.S.2D 6.  IN VIEW OF THE POSTURE OF THE LITIGATION, THE COURT
DECLINED, HOWEVER, TO DEFER DECIDING THE MERITS OF THE CONTROVERSY
PENDING A CONSTRUCTION OF THE STATUTE BY THE NEW YORK COURTS, ALTHOUGH
RECOGNIZING THAT "A TECHNICAL APPLICATION OF THE DOCTRINE OF
ABSTENTION" WOULD UNDER ORDINARY CIRCUMSTANCES COUNSEL SUCH A COURSE. 

ON THE MERITS THE COURT CONCLUDED, AFTER REVIEWING THE RELEVANT
CASES, THAT THE COMMERCE CLAUSE RENDERED CONSTITUTIONALLY IMPERMISSIBLE
NEW YORK'S ATTEMPT WHOLLY TO TERMINATE IDLEWILD'S BUSINESS OPERATIONS. 
THE COURT CONCEDED THAT NEW YORK HAS BROAD POWER UNDER THE TWENTY-FIRST
AMENDMENT TO SUPERVISE AND REGULATE THE TRANSPORTATION OF LIQUOR
THROUGH ITS TERRITORY FOR THE PURPOSE OF GUARDING AGAINST A DIVERSION
OF SUCH LIQUOR INTO DOMESTIC CHANNELS, BUT POINTED OUT THAT "THE LIQUOR
AUTHORITY HAS NEITHER ALLEGED NOR PROVED THE DIVERSION OF SO MUCH AS
ONE BOTTLE OF PLAINTIFF'S MERCHANDISE TO USERS WITHIN THE STATE OF NEW
YORK."  212 F. SUPP.,AT 386.  WE NOTED PROBABLE JURISDICTION, 375 U.S.
809, AND FOR THE REASONS WHICH FOLLOW, WE AFFIRM THE JUDGMENT OF THE
DISTRICT COURT. 

WE HOLD FIRST THAT THE DISTRICT COURT DID NOT ERR IN DECLINING TO
DEFER TO THE STATE COURTS BEFORE DECIDING THIS CONTROVERSY ON ITS
MERITS.  THE DOCTRINE OF ABSTENTION IS EQUITABLE IN ITS ORIGINS,
RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496, 500-501, AND THIS COURT
HAS HELD THAT, EVEN THOUGH CONSTITUTIONAL ISSUES BE INVOLVED,
"REFERENCE TO THE STATE COURTS FOR CONSTRUCTION OF THE STATUTE SHOULD
NOT AUTOMATICALLY BE MADE."  N.A.A.C.P. V. BENNETT, 360 U.S. 471. 
UNLIKE MANY CASES IN WHICH ABSTENTION HAS BEEN HELD APPROPRIATE, THERE
WAS HERE NO DANGER THAT A FEDERAL DECISION WOULD WORK A DISRUPTION OF
AN ENTIRE LEGISLATIVE SCHEME OF REGULATION.  (FN6)  WE THEREFORE ACCEPT
THE DISTRICT COURT'S DECISION THAT ABSTENTION WAS UNWARRANTED HERE,
WHERE NEITHER PARTY REQUESTED IT AND WHERE THE LITIGATION HAD ALREADY
BEEN LONG DELAYED, DESPITE THE PLAINTIFF'S EFFORTS TO EXPEDITE THE
PROCEEDINGS.  (FN7) 

TURNING, THEN, TO THE MERITS OF THIS CONTROVERSY, THE BASIC ISSUE WE
FACE IS WHETHER THE TWENTY-FIRST AMENDMENT SO FAR OBLITERATES THE
COMMERCE CLAUSE AS TO EMPOWER NEW YORK TO PROHIBIT ABSOLUTELY THE
PASSAGE OF LIQUOR THROUGH ITS TERRITORY, UNDER THE SUPERVISION OF THE
UNITED STATES BUREAU OF CUSTOMS ACTING UNDER FEDERAL LAW,  (FN8) FOR
DELIVERY TO CONSUMERS IN FOREIGN COUNTRIES.  FOR IT IS NOT DISPUTED
THAT, IF THE COMMODITY INVOLVED HERE WERE NOT LIQUOR, BUT GRAIN OR
LUMBER, THE COMMERCE CLAUSE WOULD CLEARLY DEPRIVE NEW YORK OF ANY SUCH
POWER.  LEMKE V. FARMERS GRAIN CO., 258 U.S. 50; TEXAS & N.O.R. CO. V.
SABINE TRAM CO., 227 U.S. 111; OKLAHOMA V. KANSAS NAT. GAS CO., 221
U.S. 229. 

THIS COURT MADE CLEAR IN THE EARLY YEARS FOLLOWING ADOPTION OF THE
TWENTY-FIRST AMENDMENT THAT BY VIRTUE OF ITS PROVISIONS A STATE IS
TOTALLY UNCONFINED BY TRADITIONAL COMMERCE CLAUSE LIMITATIONS WHEN IT
RESTRICTS THE IMPORTATION OF INTOXICANTS DESTINED FOR USE,
DISTRIBUTION, OR CONSUMPTION WITHIN ITS BORDERS.  THUS, IN UPHOLDING A
STATE'S POWER TO IMPOSE A LICENSE FEE UPON IMPORTERS OF BEER, THE COURT
POINTED OUT THAT "PRIOR TO THE TWENTY-FIRST AMENDMENT IT WOULD
OBVIOUSLY HAVE BEEN UNCONSTITUTIONAL TO HAVE IMPOSED ANY FEE FOR THAT
PRIVILEGE.  THE IMPOSITION WOULD HAVE BEEN VOID, ...  BECAUSE THE FEE
WOULD BE A DIRECT BURDEN ON INTERSTATE COMMERCE; AND THE COMMERCE
CLAUSE CONFERS THE RIGHT TO IMPORT MERCHANDISE FREE INTO ANY STATE,
EXCEPT AS CONGRESS MAY OTHERWISE PROVIDE."  STATE BOARD V. YOUNG'S
MARKET CO., 299 U.S. 59, 62.  (FN9)  IN THE SAME VEIN, THE COURT UPHELD
A MICHIGAN STATUTE PROHIBITING MICHIGAN DEALERS FROM SELLING BEER
MANUFACTURED IN A STATE WHICH DISCRIMINATED AGAINST MICHIGAN BEER. 
BREWING CO. V. LIQUOR COMM'N, 305 U.S. 391.  "SINCE THE TWENTY-FIRST
AMENDMENT,  ...  THE RIGHT OF A STATE TO PROHIBIT OR REGULATE THE
IMPORTATION OF INTOXICATING LIQUOR IS NOT LIMITED BY THE COMMERCE
CLAUSE  ...  ."  ID., AT 394.  SEE ALSO FINCH & CO. V. MCKITTRICK, 305
U.S. 395. 

THIS VIEW OF THE SCOPE OF THE TWENTY-FIRST AMENDMENT WITH RESPECT TO
A STATE'S POWER TO RESTRICT, REGULATE, OR PREVENT THE TRAFFIC AND
DISTRIBUTION OF INTOXICANTS WITHIN ITS BORDERS HAS REMAINED
UNQUESTIONED.  SEE CALIFORNIA V. WASHINGTON, 358 U.S. 64.  THUS, IN
ZIFFRIN, INC., V. REEVES, 308 U.S. 132, THERE WAS INVOLVED A KENTUCKY
STATUTE, "A LONG, COMPREHENSIVE MEASURE (123 SECTIONS) DESIGNED RIGIDLY
TO REGULATE THE PRODUCTION AND DISTRIBUTION OF ALCOHOLIC BEVERAGES
THROUGH MEANS OF LICENSES AND OTHERWISE.  THE MANIFEST PURPOSE IS TO
CHANNELIZE THE TRAFFIC, MINIMIZE THE COMMONLY ATTENDANT EVILS; ALSO TO
FACILITATE THE COLLECTION OF REVENUE.  TO THIS END MANUFACTURE, SALE,
TRANSPORTATION, AND POSSESSION ARE PERMITTED ONLY UNDER CAREFULLY
PRESCRIBED CONDITIONS AND SUBJECT TO CONSTANT CONTROL BY THE STATE." 
ID., AT 134.  THE COURT UPHELD A PROVISION OF THAT "COMPREHENSIVE
MEASURE" WHICH PROHIBITED A DOMESTIC MANUFACTURER OF LIQUOR FROM
DELIVERING HIS PRODUCT TO AN UNLICENSED PRIVATE CARRIER.  THE COURT
NOTED THAT "KENTUCKY HAS SEEN FIT TO PERMIT MANUFACTURE OF WHISKEY ONLY
UPON CONDITION THAT IT BE SOLD TO AN INDICATED CLASS OF CUSTOMERS AND
TRANSPORTED IN DEFINITELY SPECIFIED WAYS.  THESE CONDITIONS ARE NOT
UNREASONABLE AND ARE CLEARLY APPROPRIATE FOR EFFECTUATING THE POLICY OF
LIMITING TRAFFIC IN ORDER TO MINIMIZE WELL-KNOWN EVILS, AND SECURE
PAYMENT OF REVENUE.  THE STATUTE DECLARES WHISKEY REMOVED FROM
PERMITTED CHANNELS CONTRABAND SUBJECT TO IMMEDIATE SEIZURE.  THIS IS
WITHIN THE POLICE POWER OF THE STATE; AND PROPERTY SO CIRCUMSTANCED
CANNOT BE REGARDED AS A PROPER ARTICLE OF COMMERCE."  ID., AT 139. 
(FN10) 

TO DRAW A CONCLUSION FROM THIS LINE OF DECISIONS THAT THE TWENTY
FIRST AMENDMENT HAS SOMEHOW OPERATED TO "REPEAL" THE COMMERCE CLAUSE
WHEREVER REGULATION OF INTOXICATING LIQUORS IS CONCERNED WOULD,
HOWEVER, BE AN ABSURD OVERSIMPLIFICATION.  IF THE COMMERCE CLAUSE HAD
BEEN PRO TANTO "REPEALED," THEN CONGRESS WOULD BE LEFT WITH NO
REGULATORY POWER OVER INTERSTATE OR FOREIGN COMMERCE IN INTOXICATING
LIQUOR.  SUCH A CONCLUSION WOULD BE PATENTLY BIZARRE AND IS
DEMONSTRABLY INCORRECT.  IN JAMESON & CO. V. MORGENTHAU, 307 U.S. 171,
"THE FEDERAL ALCOHOL ADMINISTRATION ACT WAS ATTACKED UPON THE GROUND
THAT THE TWENTY-FIRST AMENDMENT TO THE FEDERAL CONSTITUTION GIVES TO
THE STATES COMPLETE AND EXCLUSIVE CONTROL OVER COMMERCE IN INTOXICATING
LIQUORS, UNLIMITED BY THE COMMERCE CLAUSE, AND HENCE THAT CONGRESS HAS
NO LONGER AUTHORITY TO CONTROL THE IMPORTATION OF THESE COMMODITIES
INTO THE UNITED STATES."  THE COURT'S RESPONSE TO THIS THEORY WAS A
BLUNT ONE:  "WE SEE NO SUBSTANCE IN THIS CONTENTION."  ID., AT 172
173.  SEE ALSO UNITED STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293. 
(SHERMAN ACT.) 

BOTH THE TWENTY-FIRST AMENDMENT AND THE COMMERCE CLAUSE ARE PARTS OF
THE SAME CONSTITUTION.  LIKE OTHER PROVISIONS OF THE CONSTITUTION, EACH
MUST BE CONSIDERED IN THE LIGHT OF THE OTHER, AND IN THE CONTEXT OF THE
ISSUES AND INTERESTS AT STAKE IN ANY CONCRETE CASE. 

THIS PRINCIPLE IS REFLECTED IN THE COURT'S DECISION IN COLLINS V.
YOSEMITE PARK CO., 304 U.S. 518.   THERE IT WAS HELD THAT THE TWENTY
FIRST AMENDMENT DID NOT GIVE CALIFORNIA POWER TO PREVENT THE SHIPMENT
INTO AND THROUGH HER TERRITORY OF LIQUOR DESTINED FOR DISTRIBUTION AND
CONSUMPTION IN A NATIONAL PARK.  THE COURT SAID THAT THIS TRAFFIC DID
NOT INVOLVE "TRANSPORTATION INTO CALIFORNIA 'FOR DELIVERY OR USE
THEREIN'" WITHIN THE MEANING OF THE AMENDMENT.  "THE DELIVERY AND USE
IS IN THE PARK, AND UNDER A DISTINCT SOVEREIGNTY."  ID., AT 538.  THIS
RULING WAS LATER CHARACTERIZED BY THE COURT AS HOLDING "THAT SHIPMENT
THROUGH A STATE IS NOT TRANSPORTATION OR IMPORTATION INTO THE STATE
WITHIN THE MEANING OF THE AMENDMENT."  CARTER V. VIRGINIA, 321 U.S.
131, 137.  (FN11)  SEE ALSO JOHNSON V. YELLOW CAB CO., 321 U.S. 383,
AFF'G, 137 F.2D 274. 

WE MAY ASSUME THAT IF IN COLLINS CALIFORNIA HAD SOUGHT TO REGULATE OR
CONTROL THE TRANSPORTATION OF THE LIQUOR THERE INVOLVED FROM THE TIME
OF ITS ENTRY INTO THE STATE UNTIL ITS DELIVERY AT THE NATIONAL PARK, IN
THE INTEREST OF PREVENTING UNLAWFUL DIVERSION INTO HER TERRITORY,
CALIFORNIA WOULD HAVE BEEN CONSTITUTIONALLY PERMITTED TO DO SO.  (FN12)
BUT THE COURT HELD THAT CALIFORNIA COULD NOT PREVENT COMPLETELY THE
TRANSPORTATION OF THE LIQUOR ACROSS THE STATE'S TERRITORY FOR DELIVERY
AND USE IN A FEDERAL ENCLAVE WITHIN IT. 

A LIKE ACCOMMODATION OF THE TWENTY-FIRST AMENDMENT WITH THE COMMERCE
CLAUSE LEADS TO A LIKE CONCLUSION IN THE PRESENT CASE.  HERE, ULTIMATE
DELIVERY AND USE IS NOT IN NEW YORK, BUT IN A FOREIGN COUNTRY.  THE
STATE HAS NOT SOUGHT TO REGULATE OR CONTROL THE PASSAGE OF INTOXICANTS
THROUGH HER TERRITORY IN THE INTEREST OF PREVENTING THEIR UNLAWFUL
DIVERSION INTO THE INTERNAL COMMERCE OF THE STATE.  AS THE DISTRICT
COURT EMPHASIZED, THIS CASE DOES NOT INVOLVE "MEASURES AIMED AT
PREVENTING UNLAWFUL DIVERSION OR USE OF ALCOHOLIC BEVERAGES WITHIN NEW
YORK."  212 F. SUPP., AT 386.   RATHER, THE STATE HAS SOUGHT TOTALLY TO
PREVENT TRANSACTIONS CARRIED ON UNDER THE AEGIS OF A LAW PASSED BY
CONGRESS IN THE EXERCISE OF ITS EXPLICIT POWER UNDER THE CONSTITUTION
TO REGULATE COMMERCE WITH FOREIGN NATIONS.  THIS NEW YORK CANNOT
CONSTITUTIONALLY DO.  AFFIRMED.    FN1  "THE CONGRESS SHALL HAVE POWER
...  TO REGULATE COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL
STATES, AND WITH THE INDIAN TRIBES."  U.S. CONST., ART. I, SEC 8, CL.
3. 

FN2  THE OPINION OF THE NEW YORK ATTORNEY GENERAL WAS BASED PRIMARILY
UPON THE FOLLOWING PROVISIONS OF THE NEW YORK LAW: 

"'SALE' MEANS ANY TRANSFER, EXCHANGE OR BARTER IN ANY MANNER OR BY
ANY MEANS WHATSOEVER FOR A CONSIDERATION, AND INCLUDES AND MEANS ALL
SALES MADE BY ANY PERSON, WHETHER PRINCIPAL, PROPRIETOR, AGENT, SERVANT
OR EMPLOYEE OF ANY ALCOHOLIC BEVERAGE AND/OR A WAREHOUSE RECEIPT
PERTAINING THERETO.  'TO SELL' INCLUDES TO SOLICIT OR RECEIVE AN ORDER
FOR, TO KEEP OR EXPOSE FOR SALE, AND TO KEEP WITH INTENT TO SELL AND
SHALL INCLUDE THE DELIVERY OF ANY ALCOHOLIC BEVERAGE IN THE STATE." 
NEW YORK ALCOHOLIC BEVERAGE CONTROL LAW, SEC 3, SUBD. 28. 

"NO PERSON SHALL MANUFACTURE FOR SALE OR SELL AT WHOLESALE OR RETAIL
ANY ALCOHOLIC BEVERAGE WITHIN THE STATE WITHOUT OBTAINING THE
APPROPRIATE LICENSE THEREFOR REQUIRED BY THIS CHAPTER."  NEW YORK
ALCOHOLIC BEVERAGE CONTROL LAW, SEC 100, SUBD. 1. 

"NO PREMISES SHALL BE LICENSED TO SELL LIQUORS AND/OR WINES AT RETAIL
FOR OFF PREMISES CONSUMPTION, UNLESS SAID PREMISES SHALL BE LOCATED IN
A STORE, THE ENTRANCE TO WHICH SHALL BE FROM THE STREET LEVEL AND
LOCATED ON A PUBLIC THOROUGHFARE IN PREMISES WHICH MAY BE OCCUPIED,
OPERATED OR CONDUCTED FOR BUSINESS, TRADE OR INDUSTRY OR ON AN ARCADE
OR SUB-SURFACE THOROUGHFARE LEADING TO A RAILROAD TERMINAL."  NEW YORK
ALCOHOLIC BEVERAGE CONTROL LAW, SEC 105, SUBD. 2. 

FN3  SEE 19 U.S.C. SEC 1311.  THE COMPLAINT ALSO RELIED ON THE EXPORT
IMPORT CLAUSE OF THE CONSTITUTION, ART. I, SEC 10, CL. 2, BUT SUCH
RELIANCE WAS OBVIOUSLY MISPLACED, BECAUSE NEW YORK HAS NOT SOUGHT TO
"LAY ANY IMPOSTS OR DUTIES" UPON THE MERCHANDISE SOLD BY IDLEWILD. 

FN4  THE APPELLEE'S ORIGINAL MOTION TO EMPANEL A THREE-JUDGE COURT
UNDER 28 U.S.C. SECS 2281 AND 2284 WAS DENIED BY A SINGLE DISTRICT
JUDGE, WHO RETAINED JURISDICTION PENDING RESOLUTION OF THE SUBSTANTIVE
ISSUES BY THE STATE COURTS.  188 F. SUPP. 434.  THE COURT OF APPEALS
FOR THE SECOND CIRCUIT DISMISSED ON APPEAL ON THE GROUND THAT IT WAS
WITHOUT JURISDICTION, THOUGH EXPRESSING THE VIEW THAT A THREE-JUDGE
COURT SHOULD HAVE BEEN CONVENED.  289 F.2D 426.  THE APPELLEE'S RENEWED
REQUEST FOR A THREE-JUDGE COURT WAS THEN DENIED BY A DISTRICT JUDGE ON
THE GROUND THAT PREVIOUS DISTRICT COURT RULINGS IN THE LITIGATION HAD
ESTABLISHED THE "LAW OF THIS CASE" AND THAT THE COURT OF APPEALS'
STATEMENT THAT A THREE-JUDGE COURT SHOULD HAVE BEEN CONVENED WAS
"DICTUM."  194 F. SUPP. 3.  AFTER GRANTING CERTIORARI AND A MOTION FOR
LEAVE TO FILE A PETITION FOR A WRIT OF MANDAMUS, 368 U.S. 812, THIS
COURT, HOLDING THAT A THREE-JUDGE COURT SHOULD HAVE BEEN EMPANELED,
REMANDED THE CASE TO THE DISTRICT COURT "FOR EXPEDITIOUS ACTION" TO
THAT END.  370 U.S. 713. 

FN5  THE COURT NOTED, FOR EXAMPLE:  "THE DEFINITION OF SALE IN
OF ANY ALCOHOLIC BEVERAGE IN THE STATE.'  THIS, OF COURSE, IS
INAPPLICABLE TO PLAINTIFF'S SALES.  WHATEVER MAY BE THE PURPOSE OF
FROM THE STREET LEVEL AND BE LOCATED ON A PUBLIC THOROUGHFARE, THE
REQUIREMENTS, WHICH MAY BE APPROPRIATE WHERE LIQUOR PURCHASES ARE
DELIVERED DIRECTLY TO THE CUSTOMER, SEEM QUITE IRRELEVANT TO A CONCERN
WHICH SELLS LIQUOR EXCLUSIVELY FOR DELIVERY IN A FOREIGN COUNTRY."  212
F. SUPP., AT 379. 

FN6  CF. GOVERNMENT EMPLOYEES V. WINDSOR, 353 U.S. 364; AMERICAN
FEDERATION OF LABOR V. WATSON, 327 U.S. 582; GREAT LAKES CO. V.
HUFFMAN, 319 U.S. 293; BURFORD V. SUN OIL CO., 319 U.S. 315, 323-325;
CHICAGO V. FIELDCREST DAIRIES, 316 U.S. 168. 

FN7  SEE LOUISIANA P.&L. CO. V. THIBODAUX CITY, 360 U.S. 25, 29, 31;
ALLEGHENY COUNTY V. MASHUDA CO., 360 U.S. 185, 196-197. 

FN8  THE APPELLANTS HAVE ARGUED THAT IDLEWILD'S OPERATIONS DO NOT IN
FACT CONFORM TO THE VARIOUS FEDERAL STATUTORY AND ADMINISTRATIVE
STANDARDS UNDER AUTHORITY OF WHICH THE OPERATIONS ARE CONDUCTED.  BUT
THERE IS NO INDICATION THAT THE BUREAU OF CUSTOMS HAS EVER QUESTIONED
THE REGULARITY OF IDLEWILD'S OPERATIONS UNDER THE RELEVANT FEDERAL LAW
AND REGULATIONS. 

FN9  LIKEWISE, IN MAHONEY V. TRINER CORP., 304 U.S. 401, THE COURT
HELD THAT THE EQUAL PROTECTION CLAUSE IS NOT APPLICABLE TO IMPORTED
INTOXICATING LIQUOR.  "A CLASSIFICATION RECOGNIZED BY THE TWENTY-FIRST
AMENDMENT CANNOT BE DEEMED FORBIDDEN BY THE FOURTEENTH."  ID., AT 404. 

FN10  QUITE INDEPENDENTLY OF THE TWENTY-FIRST AMENDMENT, THE COURT
HAS SUSTAINED A STATE'S POWER, WITHIN THE CONFINES OF THE COMMERCE
CLAUSE, TO REGULATE AND SUPERVISE THE TRANSPORTATION OF INTOXICANTS
THROUGH ITS TERRITORY.  SEE DUCKWORTH V. ARKANSAS, 314 U.S. 390; CARTER
V. VIRGINIA, 321 U.S. 131.  IN DUCKWORTH, MR. JUSTICE JACKSON RELIED ON
THE TWENTY-FIRST AMENDMENT IN CONCURRING IN THE JUDGMENT.  314 U.S., AT
397.  IN CARTER, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, AND MR.
JUSTICE JACKSON WROTE SEPARATE CONCURRENCES, RELYING UPON THE TWENTY
FIRST AMENDMENT.  321 U.S., AT 138, 139.  CF. GORDON V. TEXAS, 355 U.S.
369, UPHOLDING A SIMILAR STATE STATUTE IN A PER CURIAM CITING BOTH THE
TWENTY-FIRST AMENDMENT AND CARTER V. VIRGINIA, SUPRA. 

FN11  PRIOR TO THE EIGHTEENTH AMENDMENT, CONGRESS PASSED LAWS GIVING
THE STATES A LARGE DEGREE OF AUTONOMY IN REGULATING THE IMPORTATION AND
DISTRIBUTION OF INTOXICANTS.  THESE LAWS, THE WILSON ACT AND THE WEBB
KENYON ACT, ARE STILL IN FORCE.  27 U.S.C. SECS 121, 122.  IN UNITED
STATES V. GUDGER, 249 U.S. 373, THE COURT HELD THAT UNDER THE REED
AMENDMENT OF 1917 - PASSED BY CONGRESS TO STRENGTHEN THESE LAWS, 39
STAT. 1058, 1069 - A PROHIBITION UPON TRANSPORTATION "INTO" A STATE DID
NOT PROHIBIT THE "MOVEMENT THROUGH ONE STATE AS A MERE INCIDENT OF
TRANSPORTATION TO THE PLACE INTO WHICH IT IS SHIPPED."  ID., AT 375. 

FN12  SEE CASES CITED IN NOTE 10, SUPRA. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE GOLDBERG JOINS, DISSENTING. 

THE APPELLEE, IDLEWILD BON VOYAGE LIQUOR CORPORATION, BUYS WINES AND
INTOXICATING LIQUORS FROM BONDED WHOLESALE WAREHOUSES, BRINGS THEM INTO
THE STATE OF NEW YORK, AND SELLS THEM AT RETAIL IN THE JOHN F. KENNEDY
AIRPORT.  IDLEWILD DOES NOT HAVE AND CANNOT OBTAIN A NEW YORK LICENSE;
THEREFORE ITS BUSINESS IS IN VIOLATION OF NEW YORK LAW.  IDLEWILD KEEPS
A STOCK OF LIQUOR IN NEW YORK UNDER CUSTOMS INSPECTION, AND CUSTOMERS
COME INTO IDLEWILD'S SHOP, CHOOSE THE KIND OF LIQUOR THEY WANT, AND PAY
FOR IT.  THESE RETAIL SALES ARE JUST LIKE SALES MADE BY NEW YORK'S
LICENSED AND REGULATED LIQUOR DEALERS, WITH A SINGLE DIFFERENCE:  OTHER
NEW YORK RETAILERS NORMALLY MAKE DELIVERY ACROSS THE COUNTER WHILE
IDLEWILD ARRANGES WITH ITS CUSTOMERS TO PUT THEIR PURCHASES, UNDER
UNITED STATES CUSTOMS SUPERVISION, ABOARD PLANES SO THAT THE CUSTOMERS
TAKE PHYSICAL POSSESSION OF THE LIQUOR, NOT IN NEW YORK, BUT AT
DESTINATIONS ABROAD.  THE AIRPORT WHERE THE SALES TAKE PLACE IS NOT A
FEDERAL ENCLAVE WHERE EVEN AS TO LIQUOR FEDERAL LAW CAN
CONSTITUTIONALLY CONTROL,  (FN1) BUT IS NEW YORK TERRITORY SUBJECT TO
NEW YORK, NOT FEDERAL, JURISDICTION.  THE COURT NEVERTHELESS STRIKES
DOWN NEW YORK'S LAW BARRING IDLEWILD FROM SELLING INTOXICATING LIQUORS
IN NEW YORK.  THE GROUND FOR INVALIDATING THE LAW IS THAT IT CONFLICTS
WITH THE COMMERCE CLAUSE AND WITH TREASURY REGULATIONS PROMULGATED
UNDER 19 U.S.C. SEC 1311 UNDER WHICH IDLEWILD'S SALES AND DELIVERIES TO
FOREIGN-BOUND PLANES ARE FOR CUSTOMS PURPOSES SUPERVISED BY CUSTOMS
OFFICIALS.  I THINK, HOWEVER,THAT WHILE CUSTOMS OFFICIALS HAVE THE
RIGHT TO PERFORM THEIR DUTIES RELATIVE TO CUSTOMS, THE TWENTY-FIRST
AMENDMENT CONFERS EXCLUSIVE JURISDICTION UPON THE STATE OF NEW YORK TO
REGULATE ALL LIQUOR BUSINESS CARRIED ON IN NEW YORK.  SECTION 2 OF THIS
AMENDMENT, WHICH BECAME EFFECTIVE DECEMBER 1933, PROVIDES: 

"THE TRANSPORTATION OR IMPORTATION INTO ANY STATE, TERRITORY, OR
POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE THEREIN OF
INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY
PROHIBITED." 

EVEN THOUGH THE LANGUAGE OF THIS AMENDMENT CLEARLY LEAVES THE STATES
FREE TO CONTROL THE IMPORTATION OF AND TRAFFIC IN LIQUORS WITHIN THEIR
BOUNDARIES, IT WAS ARGUED IN STATE BOARD V. YOUNG'S MARKET CO., 229
U.S. 59 (1936), THAT IT WOULD BE A VIOLATION OF THE COMMERCE CLAUSE AND
OF THE EQUAL PROTECTION CLAUSE FOR A STATE TO REQUIRE A FEE OF PERSONS
IMPORTING BEER FROM OUTSIDE THE STATE.  POINTING OUT THAT SUCH A
DISCRIMINATION WOULD HAVE VIOLATED THE COMMERCE CLAUSE BEFORE ADOPTION
OF THE TWENTY-FIRST AMENDMENT, THIS COURT HELD THAT SINCE THAT
AMENDMENT A STATE WAS NOT REQUIRED TO "LET IMPORTED LIQUORS COMPETE
WITH THE DOMESTIC ON EQUAL TERMS.  TO SAY THAT, WOULD INVOLVE NOT A
CONSTRUCTION OF THE AMENDMENT, BUT A REWRITING OF IT."  ID., AT 62. 
THE COURT WENT ON TO HOLD THAT THE CLAIM THAT THE STATE'S
DISCRIMINATORY "STATUTORY PROVISIONS AND THE REGULATIONS ARE VOID UNDER
THE EQUAL PROTECTION CLAUSE MAY BE BRIEFLY DISPOSED OF.  A
CLASSIFICATION RECOGNIZED BY THE TWENTY-FIRST AMENDMENT CANNOT BE
DEEMED FORBIDDEN BY THE FOURTEENTH."  ID., AT 64.  FOLLOWING THE
YOUNG'S MARKET CASE, THIS COURT HAS SAID AND REPEATED THAT SINCE THE
TWENTY-FIRST AMENDMENT "THE RIGHT OF A STATE TO PROHIBIT OR REGULATE
THE IMPORTATION OF INTOXICATING LIQUOR IS NOT LIMITED BY THE COMMERCE
CLAUSE."  JOSEPH S. FINCH & CO. V. MCKITTRICK, 305 U.S. 395, 398
(1939); INDIANAPOLIS BREWING CO. V. LIQUOR CONTROL COMM'N, 305 U.S.
391, 394 (1939).  THE PRINCIPLES OF THESE CASES HAVE BEEN UNIFORMLY
FOLLOWED UNTIL TODAY.  E.G., CALIFORNIA V. WASHINGTON, 358 U.S. 64
(1958); ZIFFRIN, INC., V. REEVES, 308 U.S. 132 (1939).  THE COURT TODAY
ATTEMPTS TO DISTINGUISH THIS CASE FROM OUR PREVIOUS CASES, BUT I FIND
MYSELF UNPERSUADED BY THE COURT'S DISTINCTION. 

IN YOUNG'S MARKET, THE COURT FOUND IT SO CLEAR THAT THE "BROAD
LANGUAGE" OF THE TWENTY-FIRST AMENDMENT GAVE STATES EXCLUSIVE POWER TO
REGULATE OR TAX LIQUOR TRANSACTIONS IN THOSE STATES THAT IT RATHER
IMPATIENTLY REFUSED TO CONSIDER THE AMENDMENT'S HISTORY URGED IN
LIMITATION OF THAT LANGUAGE.   YOUNG'S MARKET, SUPRA, 299 U.S., AT 63
64.  I AGREE WITH JUSTICE BRANDEIS THAT HISTORY SHOULD NOT BE NECESSARY
TO PROVE WHAT IS OBVIOUS.  BUT NOW THAT THE AMENDMENT IS INTERPRETED IN
A WAY THAT TAKES AWAY PART OF THE POWER THAT I THINK WAS GIVEN TO THE
STATES BY THE AMENDMENT AND CONFERS IT ON CUSTOMS OFFICIALS, IT BECOMES
APPROPRIATE TO LOOK TO THE HISTORY OF THE AMENDMENT'S ADOPTION.  AS
REPORTED BY THE SENATE COMMITTEE ON THE JUDICIARY IN S.J. RES. 211, 72D
CONG., 2D SESS., THE PROPOSED AMENDMENT PROVIDED IN SECTION 2, "THE
TRANSPORTATION OR IMPORTATION INTO ANY STATE, TERRITORY, OR POSSESSION
OF THE UNITED STATES FOR DELIVERY OR USE THEREIN OF INTOXICATING
LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY PROHIBITED."  76
CONG. REC. 4138 (1933).  THAT LANGUAGE IS IN THE PRESENT AMENDMENT. 
BUT THE PROPOSAL ALSO CONTAINED A SECTION 3, NOT FOUND IN THE PRESENT
AMENDMENT; THAT SECTION PROVIDED, "CONGRESS SHALL HAVE CONCURRENT POWER
TO REGULATE OR PROHIBIT THE SALE OF INTOXICATING LIQUORS TO BE DRUNK ON
THE PREMISES WHERE SOLD."  IBID.  PROPOSING TO LEAVE EVEN THIS REMNANT
OF FEDERAL CONTROL OVER LIQUOR TRAFFIC GAVE RISE TO THE ONLY REAL
CONTROVERSY OVER THE LANGUAGE OF THE PROPOSED AMENDMENT.  SENATOR
WAGNER OF NEW YORK, WHO COULD NOT HAVE KNOWN THAT HIS STATE WOULD
BECAUSE OF TODAY'S OPINION BE THE FIRST TO BE DENIED CONTROL OF LIQUOR
TRAFFIC WITHIN THE STATE, OPPOSED SECTION 3 BECAUSE IT WOULD DEFEAT THE
PROPOSED AMENDMENT'S PURPOSE "TO RESTORE TO THE STATES CONTROL OF THEIR
LIQUOR PROBLEM."  ID., AT 4145.  SENATOR WAGNER ARGUED THAT GIVING THE
FEDERAL GOVERNMENT EVEN "APPARENTLY LIMITED POWER" WOULD ALLOW THAT
POWER TO BE "EXTENDED TO BOUNDARIES NOW UNDREAMED OF AND UNSUSPECTED"
BY THOSE SUPPORTING THE PROPOSED AMENDMENT.  ID., AT 4147.  IT IS CLEAR
THAT THE OPPOSITION TO SECTION 3 AND ITS ELIMINATION FROM THE PROPOSED
AMENDMENT RESTED ON THE FEAR, OFTEN VOICED DURING THE SENATE DEBATE,
(FN2) THAT ANY GRANT OF POWER TO THE FEDERAL GOVERNMENT, EVEN A
SEEMINGLY NARROW ONE, COULD BE USED TO WHITTLE AWAY THE EXCLUSIVE
CONTROL OVER LIQUOR TRAFFIC GIVEN THE STATES BY SECTION 2.  HAVING
HEARD THOSE FEARS EXPRESSED, SENATOR ROBINSON OF ARKANSAS, THE SENATE
MAJORITY LEADER, ASKED FOR A VOTE "TO STRIKE OUT SECTION 3."  ID., AT
4171.  IT WAS BECAUSE OF THESE FEARS THAT THE SENATE THEN VOTED TO TAKE
ITS BROAD GRANT OF POWER TO THE STATES.  ID., AT 4179. 

DURING THE DEBATE THE SENATORS BROUGHT OUT QUITE CLEARLY WHAT PLENARY
POWERS SECTION 2, AS IT NOW APPEARS IN THE TWENTY-FIRST AMENDMENT,
MEANT TO GIVE THE STATES.  SENATOR BLAINE OF WISCONSIN, CHAIRMAN OF THE
SUBCOMMITTEE WHICH HAD HELD HEARINGS ON THE RESOLUTION AND FLOOR
MANAGER OF THE RESOLUTION IN THE SENATE, AGREED THAT SECTION 3 "OUGHT
TO BE TAKEN OUT OF THE RESOLUTION" AND SECTION 2 LEFT IN, BECAUSE THE
"PURPOSE OF SECTION 2 IS TO RESTORE TO THE STATES BY CONSTITUTIONAL
AMENDMENT ABSOLUTE CONTROL IN EFFECT OVER INTERSTATE COMMERCE AFFECTING
INTOXICATING LIQUORS WHICH ENTER THE CONFINES OF THE STATES."  ID., AT
4143.  SPEAKING OF THE SAME SECTION, SENATOR WALSH OF MONTANA, ALSO A
MEMBER OF THE SUBCOMMITTEE, SAID, "THE PURPOSE OF THE PROVISION IN THE
RESOLUTION REPORTED BY THE COMMITTEE WAS TO MAKE THE INTOXICATING
LIQUOR SUBJECT TO THE LAWS OF THE STATE ONCE IT PASSED THE STATE LINE
AND BEFORE IT GETS INTO THE HANDS OF THE CONSIGNEE AS WELL AS
THEREAFTER."  ID., AT 4219.    THE LEGISLATIVE HISTORY, OF WHICH THESE
PASSAGES ARE TYPICAL, SHOULD BE ENOUGH TO PROVE THAT WHEN THE SENATORS
AGREED TO SECTION 2 THEY THOUGHT THEY WERE RETURNING "ABSOLUTE CONTROL"
OF LIQUOR TRAFFIC TO THE STATES, FREE OF ALL RESTRICTIONS WHICH THE
COMMERCE CLAUSE MIGHT BEFORE THAT TIME HAVE IMPOSED.  MOREOVER, BY
REJECTING SECTION 3, THEY THOUGHT THEY WERE SEEING TO IT THAT THE
FEDERAL GOVERNMENT COULD NOT INTERFERE WITH OR RESTRICT THE STATE'S
EXERCISE OF THE POWER CONFERRED BY THE AMENDMENT.  THEREFORE, THAT THE
LIQUOR IN THIS CASE IS SUPERVISED BY UNITED STATES CUSTOMS OFFICIALS
FOR CUSTOMS PURPOSES IS IMMATERIAL.  THE AMENDMENT PROMISES THAT EACH
STATE SHALL DECIDE WHAT IS BEST FOR ITSELF IN REGULATING LIQUOR TRAFFIC
WITHIN ITS BOUNDARIES, AND THE AMENDMENT NO MORE EMPOWERS CUSTOMS
OFFICIALS TO MAKE THAT DECISION FOR A STATE THAN IT EMPOWERS CONGRESS
TO MAKE IT.  THIS VIEW WAS FORCEFULLY EXPRESSED BY SENATOR WAGNER, WHO,
WHEN URGING THAT SECTION 3 BE ELIMINATED FROM THE PROPOSED AMENDMENT
AND THE STATES BE GIVEN COMPLETE CONTROL OF LIQUOR TRAFFIC, SAID:  "LET
THE PEOPLE OF EACH STATE DEAL WITH THAT SUBJECT, AND THEY WILL DO IT
MORE EFFECTIVELY AND MORE SUCCESSFULLY THAN THE FEDERAL GOVERNMENT HAS
DONE, BECAUSE IT IS NOT THE BUSINESS OF THE FEDERAL GOVERNMENT."  ID.,
AT 4146. 

THAT THE LIQUORS INVOLVED IN THIS CASE HAVE, IN WALSH'S AND BLAINE'S
WORDS, "PASSED THE STATE LINE" AND "ENTERED THE CONFINES" OF THE STATE
IS BEYOND DISPUTE.  THE DEBATES FROM WHICH I HAVE QUOTED SHOW THAT THE
SENATORS INTENDED THAT, ONCE THE LIQUORS SHOULD ENTER NEW YORK, THEY
WOULD BE SUBJECT TO THE "ABSOLUTE CONTROL" OF THAT STATE.  THE TWENTY
FIRST AMENDMENT PROMISES NEW YORK NO LESS. 

IDLEWILD'S LIQUORS, ONCE IN THE STATE, ARE SOLD AT RETAIL TO AIRLINE
PASSENGERS AT KENNEDY AIRPORT.  NO ONE DISPUTES THAT IDLEWILD THUS
COMPETES WITH OTHER NEW YORK LIQUOR DEALERS FOR THE TRADE OF THESE
CONSUMERS OF LIQUOR.  TO ALLOW THIS BUSINESS TO GO UNREGULATED BY NEW
YORK IS TO INTERFERE WITH THE REGULATORY POWER WHICH THIS COURT, IN
STATE BOARD V. YOUNG'S MARKET CO., SUPRA, SAID EACH STATE HAS UNDER THE
TWENTY-FIRST AMENDMENT.  THERE, ID., AT 63, THE COURT SAID THAT A STATE
IS PERFECTLY FREE TO SET UP A STATE LIQUOR MONOPOLY OR TO CONFER A
LIQUOR MONOPOLY UPON SOME ONE DEALER IN THE STATE.  IT IS EQUALLY
OBVIOUS THAT NEW YORK IS FREE TO ALLOW ONLY A LIMITED NUMBER OF DEALERS
TO ENGAGE IN THE LIQUOR BUSINESS.  IT MIGHT DO THIS BECAUSE IT WANTED
TO DISCOURAGE CONSUMPTION, OR TO MAKE IT EASIER TO POLICE THE LIQUOR
TRAFFIC, OR TO ACCOMPLISH SOME OTHER OBJECTIVE THE STATE THOUGHT
WORTHWHILE TO PROTECT AGAINST THE EVILS WHICH CAN FLOW FROM THE
TRAFFIC.   IN PARTICULAR NEW YORK MIGHT WANT TO SEE THAT SALES ARE NOT
DIVERTED TO IDLEWILD FROM OTHER DEALERS LICENSED AND REGULATED BY THE
STATE.  YET TODAY'S INTERPRETATION OF THE AMENDMENT RENDERS NEW YORK
IMPOTENT TO PREVENT SUCH DIVERSIONS.  JUSTIFICATION FOR THIS RESULT IS
SOUGHT BY SAYING THAT THE CUSTOMS OFFICIALS MUST BE UNHAMPERED IN THEIR
DUTIES.  BUT GIVING CUSTOMS OFFICIALS THE POWER TO PREVENT EVASION OF
CUSTOMS DUTIES DOES NOT IMMUNIZE LIQUOR DEALERS FROM STATE REGULATION. 
NOR DOES STATE REGULATION INTERFERE WITH FEDERAL OFFICIALS' PERFORMANCE
OF THEIR DUTIES.  WHETHER IDLEWILD STAYS IN BUSINESS IS NO LEGITIMATE
CONCERN OF THE CUSTOMS OFFICIALS; THEIR CONCERN IS THAT, IF IDLEWILD
DOES DO A LIQUOR BUSINESS, TAX-FREE LIQUOR NOT BE DIVERTED WITHIN THE
COUNTRY AND CUSTOMS DUTIES NOT THEREBY BE EVADED.  NOTHING IN THE NEW
YORK LICENSING SCHEME INTERFERES WITH THE FEDERAL OFFICIALS'
PERFORMANCE OF THEIR DUTY. 

THE INVALIDATION OF NEW YORK'S REGULATION OF IDLEWILD, I THINK, MAKES
INROADS UPON THE POWERS GIVEN THE STATES BY THE TWENTY-FIRST
AMENDMENT.  IRONICALLY, IT WAS AGAINST JUST THIS KIND OF JUDICIAL
ENCROACHMENT THAT SENATORS WERE COMPLAINING WHEN THEY AGREED TO S.J.
RES.  211 AND PAVED THE WAY FOR THE AMENDMENT'S ADOPTION.  SENATOR
BORAH OF IDAHO TRACED THE HISTORY OF STATE REGULATION OF LIQUOR TRAFFIC
FROM JUSTICE TANEY'S DECISION IN THE LICENSE CASES, 5 HOW.  504 (1847),
WHICH UPHELD STATE POWER OVER LIQUOR, THROUGH BOWMAN V. CHICAGO & N.R.
CO., 125 U.S. 465 (1888), WHICH SENATOR BORAH SAID "WIPED OUT THE TANEY
DECISION," TO LEISY V. HARDIN, 135 U.S. 100 (1890), WHICH MADE THE
STATES "POWERLESS TO PROTECT THEMSELVES AGAINST THE IMPORTATION OF
LIQUOR INTO THE STATES."   76 CONG. REC. 4170-4171 (1933).  BECAUSE OF
THIS JUDICIAL HISTORY, SENATOR BORAH, WANTING TO GUARANTEE THAT THE
STATES WOULD NOT BE RENDERED POWERLESS OVER LIQUOR TRAFFIC, EXPRESSED
HIS UNEASINESS AT LEAVING ANYTHING LESS THAN A CONSTITUTIONAL AMENDMENT
"TO THE PROTECTION OF THE SUPREME COURT OF THE UNITED STATES."  IBID. 
YET, INSTEAD OF PROTECTING THE STATES' POWER TO CONTROL LIQUOR TRAFFIC,
TODAY'S INTERPRETATION OF THE TWENTY-FIRST AMENDMENT LEAVES NEW YORK
POWERLESS TO REGULATE IDLEWILD'S BUSINESS AND OTHERS LIKE IT AND PUTS
THE POWER INSTEAD IN THE HANDS OF UNITED STATES CUSTOMS OFFICIALS.  I
WOULD NOT INTERPRET THE AMENDMENT THAT WAY. 

FN1  COMPARE COLLINS V. YOSEMITE PARK & CURRY CO., 304 U.S. 518
(1938); JOHNSON V. YELLOW CAB TRANSIT CO., 321 U.S. 383 (1944). 

FN2  E.G., 76 CONG. REC. 4143 (1933)(SENATOR BLAINE); 4144-4148
(SENATOR WAGNER); 4177-4178 (SENATOR BLACK). 
..END :





















DEPARTMENT OF REVENUE V. JAMES B. BEAM DISTILLING CO. 377 U.S. 341 


NO. 389.  ARGUED MARCH 23, 1964.  - DECIDED JUNE 1, 1964.  - 367 S.W.2D
267, AFFIRMED. 


RESPONDENT IS A DISTRIBUTOR OF WHISKY PRODUCED IN SCOTLAND AND SHIPPED
THROUGH UNITED STATES PORTS DIRECTLY TO BONDED WAREHOUSES IN KENTUCKY. 
STATE LAW PROVIDED FOR A TAX OF TEN CENTS PER GALLON ON THE IMPORTATION
OF WHISKY INTO THE STATE, WHICH TAX WAS COLLECTED WHILE THE SCOTCH
WHISKY WAS IN UNBROKEN PACKAGES IN THE IMPORTER'S POSSESSION. 
RESPONDENT'S CLAIM FOR REFUND OF THE TAXES ON THE BASIS OF VIOLATION OF
THE EXPORT-IMPORT CLAUSE OF THE CONSTITUTION WAS UPHELD BY THE HIGHEST
STATE COURT.  HELD:  A TAX ON THE WHISKY, WHICH RETAINED ITS CHARACTER
AS AN IMPORT IN THE ORIGINAL PACKAGE, WAS CLEARLY PROSCRIBED BY THE
EXPORT-IMPORT CLAUSE, WHICH WAS NOT, INSOFAR AS INTOXICANTS ARE
CONCERNED, REPEALED BY THE TWENTY-FIRST AMENDMENT.  PP. 341-346. 

DEPARTMENT OF REVENUE V. JAMES B. BEAM DISTILLING CO. 

CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES CONSIDERATION OF THE RELATIONSHIP BETWEEN THE
EXPORT-IMPORT CLAUSE  (FN1) AND THE TWENTY-FIRST AMENDMENT  (FN2) OF
THE CONSTITUTION. 

THE RESPONDENT, A KENTUCKY PRODUCER OF DISTILLED SPIRITS, IS ALSO THE
SOLE DISTRIBUTOR IN THE UNITED STATES OF "GILBEY'S SPEY ROYAL" SCOTCH
WHISKY.  THIS WHISKY IS PRODUCED IN SCOTLAND AND IS SHIPPED VIA THE
PORTS OF CHICAGO OR NEW ORLEANS DIRECTLY TO THE RESPONDENT'S BONDED
WAREHOUSES IN KENTUCKY.  IT IS SUBSEQUENTLY SOLD BY THE RESPONDENT TO
CUSTOMERS IN DOMESTIC MARKETS THROUGHOUT THE UNITED STATES. 

A KENTUCKY LAW PROVIDES: 

"NO PERSON SHALL SHIP OR TRANSPORT OR CAUSE TO BE SHIPPED OR
TRANSPORTED INTO THE STATE ANY DISTILLED SPIRITS FROM POINTS WITHOUT
THE STATE WITHOUT FIRST OBTAINING A PERMIT FROM THE DEPARTMENT AND
PAYING A TAX OF TEN CENTS ON EACH PROOF GALLON CONTAINED IN THE
SHIPMENT."  KRS 243.680(2)(A). 

UNDER THE AUTHORITY OF THIS STATUTE THE KENTUCKY DEPARTMENT OF
REVENUE, PETITIONER, REQUIRED THE RESPONDENT TO PAY A TAX OF 10 CENTS
ON EACH PROOF GALLON OF WHISKY WHICH IT THUS IMPORTED FROM SCOTLAND. 
IT IS NOT DISPUTED THAT, AS STATED BY THE KENTUCKY COURT OF APPEALS,
"THE TAX WAS COLLECTED WHILE THE WHISKY REMAINED IN UNBROKEN PACKAGES
IN THE HANDS OF THE ORIGINAL IMPORTER AND PRIOR TO RESALE OR USE BY THE
IMPORTER."  THE RESPONDENT FILED A CLAIM FOR REFUND OF THE TAXES, UPON
THE GROUND THAT THEIR IMPOSITION VIOLATED THE EXPORT-IMPORT CLAUSE OF
THE CONSTITUTION.  THE KENTUCKY TAX COMMISSION AND A KENTUCKY CIRCUIT
COURT OF APPEALS UPHELD IT.  367 S.W.2D 267.  WE GRANTED CERTIORARI TO
CONSIDER THE CONSTITUTIONAL ISSUE WHICH THE CASE PRESENTS.  375 U.S.
811. 

THE KENTUCKY COURT OF APPEALS HELD THAT THE TAX IN QUESTION, ALTHOUGH
AN OCCUPATIONAL OR LICENSE TAX IN FORM, IS A TAX ON IMPORTS IN FACT. 
"THE INCIDENCE OF THE TAX IS THE ACT OF TRANSPORTING OR SHIPPING THE
DISTILLED SPIRITS UNDER CONSIDERATION INTO THIS STATE."  367 S.W.2D, AT
270.  THE COURT FURTHER HELD THAT THE TAX CANNOT BE CHARACTERIZED AS AN
INSPECTION MEASURE, IN VIEW OF THE FACT THAT NEITHER THE STATUTE NOR
THE REGULATIONS IMPLEMENTING IT PROVIDE FOR ANY ACTUAL INSPECTION. 
CONCLUDING, THEREFORE, THAT THE TAX FALLS SQUARELY WITHIN THE
INTERDICTION OF THE EXPORT-IMPORT CLAUSE, THE COURT HELD THAT THIS
PROVISION OF THE CONSTITUTION HAS NOT BEEN REPEALED, INSOFAR AS
INTOXICANTS ARE CONCERNED, BY THE TWENTY-FIRST AMENDMENT.  (FN3)
ACCORDINGLY, THE COURT RULED THAT THE RESPONDENT WAS ENTITLED TO A
REFUND OF THE TAXES IT HAD PAID.  WE AGREE WITH THE KENTUCKY COURT OF
APPEALS AND AFFIRM THE JUDGMENT BEFORE US. 

THE TAX HERE IN QUESTION IS CLEARLY OF A KIND PROHIBITED BY THE
EXPORT-IMPORT CLAUSE.  BROWN V. MARYLAND, 12 WHEAT.  419.  AS THIS
COURT STATED ALMOST A CENTURY AGO IN LOW V. AUSTIN, 13 WALL.  29, A
CASE INVOLVING A CALIFORNIA AD VALOREM TAX ON WINE IMPORTED FROM FRANCE
AND STORED IN ORIGINAL CASES IN A SAN FRANCISCO WAREHOUSE, "THE GOODS
IMPORTED DO NOT LOSE THEIR CHARACTER AS IMPORTS,  ...  UNTIL THEY HAVE
PASSED FROM THE CONTROL OF THE IMPORTER OR BEEN BROKEN UP BY HIM FROM
THEIR ORIGINAL CASES.  WHILST RETAINING THEIR CHARACTER AS IMPORTS, A
TAX UPON THEM, IN ANY SHAPE, IS WITHIN THE CONSTITUTIONAL
PROHIBITION."  ID., AT 34.  SEE HOOVEN & ALLISON CO. V. EVATT, 324 U.S.
652. 

AS WE NOTED IN HOSTETTER V. IDLEWILD LIQUOR CORP., ANTE, P. 330,
"THIS COURT MADE CLEAR IN THE EARLY YEARS FOLLOWING ADOPTION OF THE
TWENTY-FIRST AMENDMENT THAT BY VIRTUE OF ITS PROVISIONS A STATE IS
TOTALLY UNCONFINED BY TRADITIONAL COMMERCE CLAUSE LIMITATIONS WHEN IT
RESTRICTS THE IMPORTATION OF INTOXICANTS DESTINED FOR USE,
DISTRIBUTION, OR CONSUMPTION WITHIN ITS BORDERS."  (FN4)  WHAT IS
INVOLVED IN THE PRESENT CASE, HOWEVER, IS NOT THE GENERALIZED AUTHORITY
GIVEN TO CONGRESS BY THE COMMERCE CLAUSE, BUT A CONSTITUTIONAL
PROVISION WHICH FLATLY PROHIBITS ANY STATE FROM IMPOSING A TAX UPON
IMPORTS FROM ABROAD.  "WE HAVE OFTEN INDICATED THE DIFFERENCE IN THIS
RESPECT BETWEEN THE LOCAL TAXATION OF IMPORTS IN THE ORIGINAL PACKAGE
AND THE LIKE TAXATION OF GOODS, EITHER BEFORE OR AFTER THEIR SHIPMENT
IN INTERSTATE COMMERCE.  IN THE ONE CASE THE IMMUNITY DERIVES FROM THE
PROHIBITION UPON TAXATION OF THE IMPORTED MERCHANDISE ITSELF.  IN THE
OTHER THE IMMUNITY IS ONLY FROM SUCH LOCAL REGULATION BY TAXATION AS
INTERFERES WITH THE CONSTITUTIONAL POWER OF CONGRESS TO REGULATE THE
COMMERCE, WHETHER THE TAXED MERCHANDISE IS IN THE ORIGINAL PACKAGE OR
NOT."  HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652, 665-666. 

THIS COURT HAS NEVER SO MUCH AS INTIMATED THAT THE TWENTY-FIRST
AMENDMENT HAS OPERATED TO PERMIT WHAT THE EXPORT-IMPORT CLAUSE
PRECISELY AND EXPLICITLY FORBIDS.  IN STATE BOARD V. YOUNG'S MARKET
CO., 299 U.S. 59, 62, THE COURT SAID THAT THE TWENTY-FIRST AMENDMENT
"ABROGATED THE RIGHT TO IMPORT FREE (FROM MISSOURI OR WISCONSIN, UNDER
THE COMMERCE CLAUSE) SO FAR AS CONCERNS INTOXICATING LIQUORS."  IN THAT
CASE THE APPELLEE HAD ARGUED IN ITS BRIEF THAT SUCH A HOLDING WOULD
IMPLY AN INVALIDATION OF THE EXPORT-IMPORT CLAUSE AS WELL,  (FN5) BUT
THE COURT'S OPINION WAS CAREFUL TO NOTE, "THE PLAINTIFFS INSIST THAT TO
SUSTAIN THE EXACTION OF THE IMPORTER'S LICENSE-FEE WOULD INVOLVE A
DECLARATION THAT THE AMENDMENT HAS, IN RESPECT TO LIQUOR, FREED THE
STATES FROM ALL RESTRICTIONS UPON THE POLICE POWER TO BE FOUND IN OTHER
PROVISIONS OF THE CONSTITUTION.  THE QUESTION FOR DECISION REQUIRES NO
SUCH GENERALIZATION."  ID., AT 64.  IN GORDON V. TEXAS, 355 U.S. 369,
THE COURT IN A BRIEF PER CURIAM AFFIRMED A TEXAS CONVICTION FOR ILLEGAL
POSSESSION OF 11 BOTTLES OF RUM WHICH HAD BEEN IMPORTED WITHOUT A
PERMIT AND TO WHICH THE REQUIRED TEXAS TAX STAMPS WERE NOT AFFIXED. 
THE STATE TAX IN THAT CASE HAD BEEN HELD TO BE NOT A TAX ON IMPORTS. 
(FN6)  IT IS CLEAR THAT THE GRAVAMEN OF THE OFFENSE IN GORDON WAS THE
FAILURE TO OBTAIN, OR EVEN APPLY FOR, A PERMIT AS REQUIRED BY STATE
LAW.  SUCH PERMITS, IN ADDITION TO OTHER FUNCTIONS, SERVE TO CHANNELIZE
THE TRAFFIC IN LIQUOR AND THUS TO PREVENT DIVERSION OF THAT TRAFFIC
INTO UNAUTHORIZED CHANNELS.  IN THE PRESENT CASE THE RESPONDENT HAS
BOTH APPLIED FOR AND OBTAINED THE REQUISITE PERMIT.  THE RELIEF IT
REQUESTS IS NOT THE ABROGATION OF THAT REQUIREMENT, BUT SIMPLY A REFUND
OF THE IMPORT TAX. 

TO SUSTAIN THE TAX WHICH KENTUCKY HAS IMPOSED IN THIS CASE WOULD
REQUIRE NOTHING SHORT OF SQUARELY HOLDING THAT THE TWENTY-FIRST
AMENDMENT HAS COMPLETELY REPEALED THE EXPORT-IMPORT CLAUSE SO FAR AS
INTOXICANTS ARE CONCERNED.  (FN7)  NOTHING IN THE LANGUAGE OF THE
AMENDMENT NOR IN ITS HISTORY LEADS TO SUCH AN EXTRAORDINARY
CONCLUSION.  THIS COURT HAS NEVER INTIMATED SUCH A VIEW, AND NOW THAT
THE CLAIM FOR THE FIRST TIME IS SQUARELY PRESENTED, WE EXPRESSLY REJECT
IT. 

WE HAVE NO DOUBT THAT UNDER THE TWENTY-FIRST AMENDMENT KENTUCKY COULD
NOT ONLY REGULATE, BUT COULD COMPLETELY PROHIBIT THE IMPORTATION OF
SOME INTOXICANTS, OR OF ALL INTOXICANTS, DESTINED FOR DISTRIBUTION,
USE, OR CONSUMPTION WITHIN ITS BORDERS.  THERE CAN SURELY BE NO DOUBT,
EITHER, OF KENTUCKY'S PLENARY POWER TO REGULATE AND CONTROL, BY
TAXATION OR OTHERWISE, THE DISTRIBUTION, USE, OR CONSUMPTION OF
INTOXICANTS WITHIN HER TERRITORY AFTER THEY HAVE BEEN IMPORTED.  ALL WE
DECIDE TODAY IS THAT, BECAUSE OF THE EXPLICIT AND PRECISE WORDS OF THE
EXPORT-IMPORT CLAUSE OF THE CONSTITUTION, KENTUCKY MAY NOT LAY THIS
IMPOST ON THESE IMPORTS FROM ABROAD.  AFFIRMED. 

FN1  "NO STATE SHALL, WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY
IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY
NECESSARY FOR EXECUTING IT'S INSPECTION LAWS:  AND THE NET PRODUCE OF
ALL DUTIES AND IMPOSTS, LAID BY ANY STATE ON IMPORTS OR EXPORTS, SHALL
BE FOR THE USE OF THE TREASURY OF THE UNITED STATES; AND ALL SUCH LAWS
SHALL BE SUBJECT TO THE REVISION AND CONTROUL OF THE CONGRESS."  U.S.
CONST., ART. I, SEC 10, CL. 2. 

FN2  "THE TRANSPORTATION OR IMPORTATION INTO ANY STATE, TERRITORY, OR
POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE THEREIN OF
INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY
PROHIBITED."  U.S. CONST., AMEND. XXI, SEC 2. 

FN3  AS THE KENTUCKY COURT OF APPEALS NOTED, TWO OTHER STATE COURTS
HAVE REACHED THE SAME CONCLUSION.  PARROTT & CO. V. SAN FRANCISCO, 131
CAL. APP. 2D 332, 280 P.2D 881; STATE V. BOARD OF REVIEW, 15 WIS. 2D
330, 112 N.W.2D 914. 

FN4  SEE STATE BOARD V. YOUNG'S MARKET CO., 299 U.S. 59; BREWING CO.
V. LIQUOR COMM'N, 305 U.S. 391; FINCH & CO. V. MCKITTRICK, 305 U.S.
395. 

FN5  SEE BRIEF FOR APPELLEES, NO. 22, 1936 TERM, PP. 24-25. 

FN6  "IT IS APPARENT THAT THE TAX INVOLVED IS NOT AN IMPORT TAX NOR A
TAX UPON AN IMPORTATION.  IN FACT, THE INSTANT TAX COULD NOT BECOME AN
IMPORT TAX BECAUSE THE IMPORTATION MUST HAVE BEEN COMPLETED BEFORE THE
TAX HERE LEVIED ATTACHED."  GORDON V. STATE, 166 TEX. CR. R. 24, 27,
310 S.W.2D 328, 330. 

FN7  PRIOR TO THE EIGHTEENTH AMENDMENT CONGRESS PASSED THE WEBB
KENYON ACT AND THE WILSON ACT, GIVING THE STATES A LARGE DEGREE OF
AUTONOMY IN REGULATING THE IMPORTATION AND DISTRIBUTION OF
INTOXICANTS.  THOSE LAWS ARE STILL IN FORCE.  27 U.S.C. SECS 121, 122. 
IN DE BARY V. LOUISIANA, 227 U.S. 108, THE COURT UPHELD UNDER THE
WILSON ACT A LOUISIANA LICENSE TAX IMPOSED ON THE BUSINESS OF SELLING
IN THEIR ORIGINAL PACKAGES WINES AND LIQUORS IMPORTED FROM ABROAD. 
THERE IS NOTHING IN THAT DECISION, NOR IN THE LANGUAGE OF EITHER THE
WILSON ACT OR THE WEBB-KENYON ACT, TO SUPPORT THE VIEW THAT CONGRESS
INTENDED BY THOSE LAWS TO CONSENT TO STATE TAXATION UPON IMPORTATION OF
LIQUOR. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE DISPOSITION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE GOLDBERG JOINS, DISSENTING. 

THIS CASE, LIKE HOSTETTER V. IDLEWILD BON VOYAGE LIQUOR CORP., ALSO
DECIDED TODAY, ANTE, P. 324, DEPRIVES THE STATES OF A LARGE PART OF THE
POWER WHICH I THINK THE TWENTY-FIRST AMENDMENT GIVES THEM TO REGULATE
THE LIQUOR BUSINESS BY TAXATION OR OTHERWISE.  THAT AMENDMENT PROVIDES
IN PART THAT "THE TRANSPORTATION OR IMPORTATION INTO ANY STATE  ...
FOR DELIVERY OR USE THEREIN OF INTOXICATING LIQUORS, IN VIOLATION OF
THE LAWS THEREOF, IS HEREBY PROHIBITED."  KENTUCKY REQUIRES PERSONS
TRANSPORTING DISTILLED SPIRITS INTO THE STATE FROM WITHOUT THE STATE TO
OBTAIN A PERMIT AND PAY A TAX OF 10 CENTS PER GALLON.  THIS KENTUCKY
TAX AS APPLIED TO LIQUORS IMPORTED INTO KENTUCKY FROM ANOTHER STATE IS,
SINCE THE TWENTY-FIRST AMENDMENT, UNQUESTIONABLY VALID AGAINST
OBJECTIONS BASED ON EITHER THE COMMERCE OR EQUAL PROTECTION CLAUSES. 
SUCH WAS THE HOLDING OF THIS COURT, SOON AFTER THE AMENDMENT'S
ADOPTION, IN STATE BOARD V. YOUNG'S MARKET CO., 299 U.S. 59 (1936),
WHERE THE COURT HELD THAT A STATE IS FREE UNDER THE TWENTY-FIRST
AMENDMENT TO LEVY A "HEAVY IMPORTATION FEE" ON BEER BROUGHT INTO THE
STATE.  IN THAT CASE, THE BEER WAS IMPORTED FROM MISSOURI AND
WISCONSIN, BUT THERE IS NOTHING IN THE COURT'S OPINION TO SUGGEST THAT
THE HOLDING WOULD HAVE BEEN DIFFERENT IF THE BEER HAD COME FROM, SAY,
CANADA.  SEE INDIANAPOLIS BREWING CO. V. LIQUOR CONTROL COMM'N, 305
U.S. 391 (1939); JOSEPH S. FINCH & CO. V. MCKITTRICK, 305 U.S. 395
(1939).  YET HERE, BECAUSE THE LIQUORS KENTUCKY HAS TAXED ARE IMPORTS
FROM SCOTLAND RATHER THAN IMPORTS FROM ANOTHER PART OF THE UNITED
STATES, THE COURT HOLDS THAT THE KENTUCKY TAX IS BARRED BECAUSE ART. I,
SEC 10, CL. 2, OF THE CONSTITUTION PROVIDES THAT "NO STATE SHALL,
WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY IMPOSTS OR DUTIES ON
IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR
EXECUTING IT'S INSPECTION LAWS  ...  ."  I THINK THIS CLAUSE FORBIDDING
A STATE TO TAX IMPORTS FROM ABROAD NO MORE LIMITS A STATE'S RIGHT TO
TAX INTOXICATING LIQUORS THAN DOES THE COMMERCE CLAUSE.  IN THE FIRST
PLACE, THE COMMERCE CLAUSE APPLIES TO FOREIGN AND INTERSTATE COMMERCE
ALIKE.  FURTHER, THE CLAUSE AGAINST TAXING IMPORTS IS GENERAL LIKE THE
COMMERCE CLAUSE ITSELF.  SECTION 2 OF THE TWENTY-FIRST AMENDMENT, BY
CONTRAST, IS NOT GENERAL IN ITS APPLICATION.  IT WAS ADOPTED WITH ONE
SPECIFIC OBJECT:  TO GIVE THE STATES UNFETTERED POWER TO REGULATE
INTOXICATING LIQUORS.  STATE BOARD V. YOUNG'S MARKET CO., SUPRA, AND
OUR OTHER CASES EXPRESSLY HELD THE STATE'S POWER NOT TO BE LIMITED
EITHER BY THE COMMERCE CLAUSE OR BY THE EQUAL PROTECTION CLAUSE. 
SURELY THE EXPORT-IMPORT CLAUSE IS NO MORE EXALTED AND NO MORE WORTHY
TO BE EXCEPTED FROM THE TWENTY-FIRST AMENDMENT THAN ARE THE COMMERCE
AND EQUAL PROTECTION CLAUSES.  IT SEEMS A TRIFLE ODD TO HOLD THAT AN
AMENDMENT ADOPTED IN 1933 IN SPECIFIC TERMS TO MEET A SPECIFIC
TWENTIETH-CENTURY PROBLEM MUST YIELD TO A PROVISION WRITTEN IN 1787 TO
MEET A MORE GENERAL, ALTHOUGH NO LESS IMPORTANT, PROBLEM.  SINCE THE
TWENTY-FIRST AMENDMENT WAS DESIGNED TO EMPOWER THE STATES TO TAX
"INTOXICATING LIQUORS" IMPORTED INTO THE STATES, I CANNOT TAKE IT UPON
MYSELF TO SAY THAT A STATE CAN TAX LIQUORS MADE IN THIS COUNTRY BUT NOT
THOSE MADE IN SCOTLAND - A DISTINCTION NOT SUGGESTED BY THE AMENDMENT'S
LANGUAGE OR ITS HISTORY.  THE AMENDMENT, AFTER ALL, DOES NOT TALK ABOUT
"FOREIGN" LIQUORS OR "DOMESTIC" LIQUORS; IT SIMPLY SPEAKS OF "LIQUORS"
ALL LIQUORS, WHATEVER THEIR ORIGIN.  THE PURPOSE OF THE AMENDMENT WAS
TO GIVE STATES POWER TO REGULATE, BY TAXATION OR OTHERWISE, ALL LIQUORS
WITHIN THEIR BOUNDARIES.  TO FREE FROM STATE TAXATION LIQUORS IMPORTED
FROM ABROAD IS TO PLACE STATES AT THE MERCY OF LIQUOR IMPORTERS WHO
WANT TO USE A STATE AS A STORAGE PLACE FOR DISTRIBUTION OF THEIR
IMPORTS.  IT DEPRIVES A STATE OF THE POWER THE TWENTY-FIRST AMENDMENT
GIVES EACH STATE - THAT IS, PLENARY POWER TO DECIDE WHICH LIQUORS SHALL
BE ADMITTED INTO THE STATE FOR STORAGE, SALE, OR DISTRIBUTION WITHIN
THE STATE.  A STATE MAY CHOOSE TO HAVE WINE ONLY, BEER ONLY, SCOTCH
ONLY, BOURBON ONLY, OR NONE OF THESE.  AS THE COURT SAID IN STATE BOARD
V. YOUNG'S MARKET CO., SUPRA, AT 63, A STATE CAN "EITHER PROHIBIT ALL
COMPETING IMPORTATIONS, OR DISCOURAGE IMPORTATION BY LAYING A HEAVY
IMPOST, OR CHANNELIZE DESIRED IMPORTATIONS  ...  ."  ALTHOUGH I WAS
BROUGHT UP TO BELIEVE THAT SCOTCH WHISKY WOULD NEED A TAX PREFERENCE TO
SURVIVE IN COMPETITION WITH KENTUCKY BOURBON, I NEVER UNDERSTOOD THE
CONSTITUTION TO REQUIRE A STATE TO GIVE SUCH PREFERENCE.  (MY
DISSENTING BROTHER ASKS ME TO SAY THAT THIS STATEMENT DOES NOT
NECESSARILY REPRESENT HIS VIEWS ON THE RESPECTIVE MERITS OF SCOTCH AND
BOURBON.) 

AS RECENTLY AS 1958, THIS COURT REVIEWED THE TEXAS CONVICTION OF A
MAN WHO HAD BROUGHT SOME BOTTLES OF RUM INTO TEXAS FROM MEXICO ON HIS
WAY TO HIS HOME IN NORTH CAROLINA, AND HAD REFUSED TO PAY TEXAS
ALCOHOLIC BEVERAGE TAXES WHEN ASKED TO DO SO.  OVER OBJECTIONS THAT
THIS TAX VIOLATED BOTH THE EXPORT-IMPORT CLAUSE AND THE COMMERCE
CLAUSE, THIS COURT, IN A THREE-LINE PER CURIAM OPINION, UNANIMOUSLY
AFFIRMED THE CONVICTION.  GORDON V. TEXAS, 355 U.S. 369 (1958).  BRIEFS
FILED BY TEXAS IN THAT CASE HAD ARGUED THAT THE TAX WAS REALLY ONE ON
"POSSESSION," NOT ON "IMPORTATION," BUT THESE LABELS CANNOT OBSCURE THE
FACT THAT BOTH IN GORDON AND IN THIS CASE THE SAME CONDUCT WAS
INVOLVED: THE PHYSICAL IMPORTATION OF LIQUOR FROM ABROAD INTO THE
STATE, AT WHICH POINT THE STATE'S INTEREST IN REGULATING OR TAXING THE
LIQUOR CAME INTO PLAY.  GORDON DID NOT - JUST AS THE TWENTY-FIRST
AMENDMENT DOES NOT - DRAW NICE DISTINCTIONS ABOUT WHERE IMPORTED LIQUOR
COMES FROM.  NOR IS THERE ONE WORD IN THE DEBATES IN CONGRESS PRECEDING
THE ADOPTION OF THE AMENDMENT TO SUGGEST THAT THE BACKERS OF THE
AMENDMENT, IN SEEKING TO GIVE THE STATES FULL AND UNHAMPERED POWER OVER
LIQUOR TRAFFIC, THOUGHT LIQUOR COMING FROM ABROAD WAS LESS OF A PROBLEM
THAN DOMESTIC LIQUOR OR SHOULD BE TREATED AT ALL DIFFERENTLY. 

A FINAL WORD CONCERNING THE COURT'S STATEMENT THAT "TO SUSTAIN THE
TAX WHICH KENTUCKY HAS IMPOSED IN THIS CASE WOULD REQUIRE NOTHING SHORT
OF SQUARELY HOLDING THAT THE TWENTY-FIRST AMENDMENT HAS COMPLETELY
REPEALED THE EXPORT-IMPORT CLAUSE SO FAR AS INTOXICANTS ARE
CONCERNED."  ANTE, P. 345.  THIS, I THINK, IS NOT CORRECT.  WHAT THE
TWENTY-FIRST AMENDMENT DOES MEAN, I BELIEVE, IS THAT WHENEVER LIQUOR
IMPORTED FROM ANYWHERE OUTSIDE THE STATE, INCLUDING FOREIGN COUNTRIES,
IS TRANSPORTED PHYSICALLY INTO A STATE, THERE TO COME TO REST TO BE
STORED FOR SALE AND DISTRIBUTION, IT THEN AND THERE BECOMES A STATE
PROBLEM AND LIKE ALL OTHER LIQUORS IS SUBJECT TO STATE LAWS OF ALL
KINDS.  IT CANNOT BE TREATED AS IF IT WERE LIQUOR PASSING STRAIGHT
THROUGH THE STATE - ALTHOUGH EVEN THEN THE STATE WOULD HAVE THE POWER
TO IMPOSE REGULATIONS TO PREVENT DIVERSIONS OR OTHER POSSIBLE EVILS. 
SEE CARTER V. VIRGINIA, 321 U.S. 131 (1944).  WHATEVER MAY HAVE BEEN
THE VIRTUE OR THE CONSTITUTIONAL SOUNDNESS OF THE FICTION THAT ARTICLES
IMPORTED FROM ABROAD ARE "IMPORTS" SO LONG AS THEY REMAIN "IN THEIR
ORIGINAL PACKAGES," SEE HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652
(1945), AND DISSENT AT 686-691, THAT DOCTRINE WAS EXPRESSLY ATTACKED IN
THE SENATE DEBATE ON THE TWENTY-FIRST AMENDMENT AS RENDERING THE STATES
"POWERLESS TO PROTECT THEMSELVES AGAINST THE IMPORTATION OF LIQUOR INTO
THE STATES."*  76 CONG. REC. 4171 (1933).  THE AMENDMENT WAS MEANT TO
BURY THAT OBSTACLE TO STATE POWER OVER LIQUOR, AND THE DOCTRINE OF
"ORIGINAL PACKAGE," WHICH THE SENATE CONSCIOUSLY REJECTED, SHOULD NOT
BE REVIVED AFTER 30 YEARS' INTERMENT, ONCE AGAIN TO BE USED TO DEPRIVE
STATES OF POWER THE SENATE SO CLEARLY WANTED THEM TO HAVE AND THE
PEOPLE SO CLEARLY GRANTED THEM.  SECTION 2 OF THE AMENDMENT, BORN OF
LONG AND BITTER EXPERIENCE IN THE FIELD OF LIQUOR REGULATION, SHOULD
NOT BE FRUSTRATED BY US. 

I WOULD UPHOLD THE KENTUCKY TAX. 

* "THE STATE OF IOWA PASSED A PROHIBITION LAW PROHIBITING THE
MANUFACTURE OR SALE OF INTOXICATING LIQUORS, EXCEPT UNDER CERTAIN
SPECIFICATIONS MADE.  THE SUPREME COURT IN THE CASE OF LEISY V. HARDIN
(135 U.S. 100) HELD THE LAW UNCONSTITUTIONAL, IN SO FAR AS IT APPLIED
TO THE SALE BY THE IMPORTER IN THE ORIGINAL PACKAGE OR KEG  ...  . 

"THE STATES THEREFORE WERE POWERLESS TO PROTECT THEMSELVES AGAINST
THE IMPORTATION OF LIQUOR INTO THE STATES."  76 CONG. REC. 4171
(1933)(SENATOR BORAH). 
..END :













UNITED STATES V. VERMONT 377 U.S. 351 


NO. 509.  ARGUED APRIL 21, 1964.  - DECIDED JUNE 1, 1964.  - 317 F.2D
446, AFFIRMED. 


A STATE ASSESSED A SOLVENT TAXPAYER FOR UNPAID STATE TAXES UNDER A LAW
PROVIDING THAT THE AMOUNT OWED SHALL BE A LIEN IN FAVOR OF THE STATE
UPON THE TAXPAYER'S PROPERTY AND THAT THE LIEN ARISES AT THE TIME THE
ASSESSMENT IS MADE.  LATER, THE COMMISSIONER OF INTERNAL REVENUE,
PROCEEDING UNDER 26 U.S.C. SECS 6321 AND 6322, PROVISIONS VIRTUALLY
IDENTICAL WITH THE STATE LAW, ASSESSED THE TAXPAYER FOR FEDERAL TAXES. 
THE STATE THEREAFTER SUED AND SECURED A JUDGMENT IN THE STATE COURT
AGAINST THE TAXPAYER AND A BANK WHICH HELD SUMS OWING TO THE TAXPAYER. 
THE UNITED STATES THEN SUED IN FEDERAL COURT TO FORECLOSE THE FEDERAL
LIEN; THE DISTRICT COURT UPHELD THE STATE'S CONTENTION THAT ITS
ORIGINAL ASSESSMENT GAVE ITS LIEN PRIORITY; AND THE COURT OF APPEALS
AFFIRMED.  HELD: THE STATE LIEN HAD PRIORITY OVER THE LATER FEDERAL
LIEN.  PP. 354-359. 

(A)  THE STATE'S LIEN WAS CHOATE SINCE THE IDENTITY OF THE LIENOR,
THE PROPERTY SUBJECT TO THE LIEN AND THE AMOUNT OF THE LIEN WERE
ESTABLISHED.  UNITED STATES V. NEW BRITAIN, 347 U.S. 81, FOLLOWED.  PP.
354-355, 358. 

(B)  WHERE IN A CASE INVOLVING A SOLVENT DEBTOR A FEDERAL TAX LIEN
ARISES UNDER SECS 6321 AND 6322 SUBSEQUENT TO A STATE TAX LIEN, IT IS
NOT NECESSARY THAT PROPERTY BE REDUCED TO THE POSSESSION OF THE STATE
TAX LIENOR TO DEFEAT THE FEDERAL CLAIM, AS WOULD HAVE BEEN THE CASE
UNDER R.S. SEC 3466, WHICH ACCORDS THE UNITED STATES PRIORITY WITH
RESPECT TO A CLAIM AGAINST AN INSOLVENT DEBTOR.  UNITED STATES V.
GILBERT ASSOCIATES, 345 U.S. 361, DISTINGUISHED.  PP. 356-359. 

UNITED STATES V. VERMONT ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES A CONFLICT BETWEEN TWO LIENS UPON THE PROPERTY OF
A SOLVENT VERMONT TAXPAYER - A FEDERAL TAX LIEN ARISING UNDER THE
PROVISIONS OF 26 U.S.C. SECS 6321 AND 6322 (FN1) AND AN ANTECEDENT
STATE TAX LIEN BASED ON A VERMONT LAW WORDED IN TERMS VIRTUALLY
IDENTICAL TO THE PROVISIONS OF THOSE FEDERAL STATUTES. 

ON OCTOBER 21, 1958, THE STATE OF VERMONT MADE AN ASSESSMENT AND
DEMAND ON CUTTING & TRIMMING, INC., FOR WITHHELD STATE INCOME TAXES OF
$1,628.15.  THE APPLICABLE VERMONT STATUTE, MODELED ON THE COMPARABLE
FEDERAL ENACTMENTS, PROVIDES THAT IF AN EMPLOYER REQUIRED TO WITHHOLD A
TAX FAILS TO PAY THE SAME AFTER DEMAND, "THE AMOUNT, INCLUDING INTEREST
AFTER SUCH DEMAND, TOGETHER WITH ANY COSTS THAT MAY ACCRUE IN ADDITION
THERETO, SHALL BE A LIEN IN FAVOR OF THE STATE OF VERMONT UPON ALL
PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR PERSONAL, BELONGING TO
SUCH EMPLOYER," AND THAT "SUCH LIEN SHALL ARISE AT THE TIME THE
ASSESSMENT AND DEMAND IS MADE BY THE COMMISSIONER OF TAXES AND SHALL
CONTINUE UNTIL THE LIABILITY FOR SUCH SUM, WITH INTEREST AND COSTS, IS
SATISFIED OR BECOMES UNENFORCEABLE."  (FN2) 

MORE THAN THREE MONTHS LATER, ON FEBRUARY 9, 1959, THE COMMISSIONER
OF INTERNAL REVENUE MADE AN ASSESSMENT AGAINST CUTTING & TRIMMING OF
$5,365.96 FOR TAXES DUE UNDER THE FEDERAL UNEMPLOYMENT TAX ACT.  UNDER
SECS 6321 AND 6322, THIS AMOUNT BECAME "A LIEN IN FAVOR OF THE UNITED
STATES UPON ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR
PERSONAL, BELONGING TO SUCH PERSON," WHICH AROSE "AT THE TIME THE
ASSESSMENT IS MADE AND SHALL CONTINUE UNTIL THE LIABILITY FOR THE
AMOUNT SO ASSESSED IS SATISFIED OR BECOMES UNENFORCEABLE BY REASON OF
LAPSE OF TIME."  (FN3) 

ON MAY 21, 1959, THE STATE INSTITUTED SUIT IN A STATE COURT AGAINST
CUTTING & TRIMMING, JOINING AS A DEFENDANT CHITTENDEN TRUST COMPANY, A
BURLINGTON BANK WHICH, AS THE RESULT OF A WRIT SERVED ON MAY 25,
DISCLOSED THAT IT HAD IN HAND SUMS OWING TO CUTTING & TRIMMING.  ON
OCTOBER 23, 1959, JUDGMENT WAS ENTERED AGAINST CUTTING & TRIMMING AND
AGAINST CHITTENDEN TRUST COMPANY. 

IN 1961, THE UNITED STATES BROUGHT THE PRESENT ACTION IN THE FEDERAL
DISTRICT COURT FOR VERMONT TO FORECLOSE THE FEDERAL LIEN AGAINST THE
PROPERTY OF CUTTING & TRIMMING HELD BY THE TRUST COMPANY.  VERMONT'S
ANSWER ALLEGED THAT THE STATE ASSESSMENT OF OCTOBER 21, 1958, GAVE ITS
LIEN PRIORITY OVER THE FEDERAL LIEN.  ON CROSS-MOTIONS FOR JUDGMENT ON
THE PLEADINGS THE DISTRICT COURT HELD THAT THE STATE LIEN HAD PRIORITY,
AND DIRECTED THE TRUST COMPANY TO APPLY THE MONEYS WHICH IT HELD FIRST
TO THE PAYMENT OF PRINCIPAL AND INTEREST ON THAT LIEN, AND TO PAY ANY
BALANCE TO THE UNITED STATES.  206 F. SUPP. 951. 

THE COURT OF APPEALS AFFIRMED, REASONING THAT, UNDER THIS COURT'S
DECISION IN UNITED STATES V. NEW BRITAIN, 347 U.S. 81, "IT WOULD SEEM
THAT IF THE GENERAL FEDERAL TAX LIEN UNDER SECS 6321 AND 6322 IS THUS
SUFFICIENTLY 'CHOATE' TO PREVAIL OVER A LATER SPECIFIC LOCAL TAX LIEN,
A GENERAL STATE TAX LIEN UNDER AN ALMOST IDENTICALLY WORDED STATUTE
MUST ALSO BE 'CHOATE' ENOUGH TO PRIME A LATER AND EQUALLY GENERAL
FEDERAL TAX LIEN," 317 F.2D 446, 452.  ACCORDINGLY, THE APPELLATE COURT
APPLIED "THE 'CARDINAL RULE' LAID DOWN BY CHIEF JUSTICE MARSHALL IN
RANKIN & SCHATZELL V. SCOTT, 12 WHEAT.  (25 U.S.)  177, 179 (1827):
'THE PRINCIPLE IS BELIEVED TO BE UNIVERSAL THAT A PRIOR LIEN GIVES A
PRIOR CLAIM, WHICH IS ENTITLED TO PRIOR SATISFACTION, OUT OF THE
SUBJECT IT BINDS  ...  .'"  ID., AT 450.   BECAUSE OF THE IMPORTANCE OF
THE QUESTION IN THE ADMINISTRATION OF THE STATE AND FEDERAL REVENUE
LAWS, WE GRANTED CERTIORARI.  375 U.S. 940.  FOR THE REASONS WHICH
FOLLOW, WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

BOTH PARTIES URGE THAT DECISION HERE IS GOVERNED BY UNITED STATES V.
NEW BRITAIN, 347 U.S. 81.  IN THAT CASE, INVOLVING CONFLICTING
MUNICIPAL AND FEDERAL STATUTORY LIENS, THE COURT HELD THAT "THE
PRIORITY OF EACH STATUTORY LIEN CONTESTED HERE MUST DEPEND ON THE TIME
IT ATTACHED TO THE PROPERTY IN QUESTION AND BECAME CHOATE."  ID., AT
86.  IN DETERMINING THE CHOATENESS OF THE LIENS INVOLVED, THE COURT
"ACCEPTED THE STATE COURT'S HOLDING AS TO THE SPECIFICITY OF THE CITY'S
LIENS SINCE THEY ATTACHED TO SPECIFIC PIECES OF REAL PROPERTY FOR THE
TAXES ASSESSED AND WATER RENT DUE," BUT IT WENT ON TO STRESS THAT
"LIENS MAY ALSO BE PERFECTED IN THE SENSE THAT THERE IS NOTHING MORE TO
BE DONE TO HAVE A CHOATE LIEN - WHEN THE IDENTITY OF THE LIENOR, THE
PROPERTY SUBJECT TO THE LIEN, AND THE AMOUNT OF THE LIEN ARE
ESTABLISHED.  THE FEDERAL TAX LIENS ARE GENERAL AND, IN THE SENSE ABOVE
INDICATED, PERFECTED."  ID., AT 84.  VERMONT'S CLAIM FOR THE PRIORITY
OF ITS LIEN OVER THE LATER FEDERAL LIEN IS BASED ON THE FACT THAT ITS
LIEN IS A COMPLETELY "PERFECTED" AS WAS THE FEDERAL LIEN IN NEW
BRITAIN.  OPPOSING THIS CLAIM, THE UNITED STATES URGES THAT DIFFERENT
STANDARDS OF CHOATENESS APPLY TO FEDERAL AND STATE LIENS, EVEN WHERE,
AS HERE, THEY ARE BASED ON STATUTES IDENTICAL IN EVERY MATERIAL
RESPECT.  THE ARGUMENT, IN SHORT, IS THAT AN ANTECEDENT STATE LIEN, IN
ORDER TO OBTAIN PRIORITY OVER A FEDERAL LIEN BASED ON SECS 6321 AND
6322, CANNOT, LIKE THE FEDERAL LIEN, ATTACH TO ALL OF THE TAXPAYER'S
PROPERTY, BUT MUST RATHER, LIKE THE MUNICIPAL LIENS IN NEW BRITAIN,
ATTACH TO SPECIFICALLY IDENTIFIED PORTIONS OF THAT PROPERTY. 

THE REQUIREMENT THAT A COMPETING LIEN MUST BE CHOATE IN ORDER TO TAKE
PRIORITY OVER A LATER FEDERAL TAX LIEN STEMS FROM THE DECISION IN
UNITED STATES V. SECURITY TRUST & SAVINGS BANK, 340 U.S. 47.  THERE, AN
ATTACHMENT LIEN WHICH GAVE NO RIGHT TO PROCEED AGAINST THE ATTACHED
PROPERTY UNLESS JUDGMENT WAS OBTAINED WITHIN THREE YEARS OR WITHIN AN
EXTENSION PROVIDED BY THE STATUTE WAS HELD JUNIOR TO A FEDERAL TAX LIEN
WHICH HAD ARISEN AFTER THE DATE OF THE ATTACHMENT BUT PRIOR TO THE DATE
OF JUDGMENT ON THE GROUND THAT "NUMEROUS CONTINGENCIES MIGHT ARISE THAT
WOULD PREVENT THE ATTACHMENT LIEN FROM EVER BECOMING PERFECTED BY A
JUDGMENT AWARDED AND RECORDED.  THUS THE ATTACHMENT LIEN IS CONTINGENT
OR INCHOATE - MERELY A LIS PENDENS NOTICE THAT A RIGHT TO PERFECT A
LIEN EXISTS."  ID., AT 50.  THE SECURITY TRUST RATIONALE HAS SINCE BEEN
APPLIED IN A CASE WHERE A FEDERAL TAX LIEN AROSE PRIOR TO JUDGMENT ON A
GARNISHMENT LIEN, UNITED STATES V. LIVERPOOL & LONDON INS. CO., 348
U.S. 215,  (FN4) AND COMPARABLE DEFECTS HAVE BEEN HELD TO REQUIRE THE
ACCORDING OF PRIORITY TO THE FEDERAL LIEN IN A SERIES OF CASES
INVOLVING COMPETING MECHANICS' LIENS.  (FN5) 

IN ADDITION TO SETTING OUT THE SPECIFIC GROUND OF DECISION, HOWEVER,
THE SECURITY TRUST OPINION WENT ON TO STATE: 

"IN CASES INVOLVING A KINDRED MATTER, I.E., THE FEDERAL PRIORITY
UNDER R.S. SEC 3466, IT HAS NEVER BEEN HELD SUFFICIENT TO DEFEAT THE
FEDERAL PRIORITY MERELY TO SHOW A LIEN EFFECTIVE TO PROTECT THE LIENOR
AGAINST OTHERS THAN THE GOVERNMENT, BUT CONTINGENT UPON TAKING
SUBSEQUENT STEPS FOR ENFORCING IT  ...  .  IF THE PURPOSE OF THE
FEDERAL TAX LIEN STATUTE TO INSURE PROMPT AND CERTAIN COLLECTION OF
TAXES DUE THE UNITED STATES FROM TAX DELINQUENTS IS TO BE FULFILLED, A
SIMILAR RULE MUST PREVAIL HERE."  340 U.S., AT 51. 

RELYING ON THIS STATEMENT, THE UNITED STATES URGES US TO READ
SECURITY TRUST AS ESTABLISHING THE PROPOSITION THAT FEDERAL TAX LIENS
ARE ENTITLED TO PRIORITY, NOT ONLY OVER "A LIS PENDENS NOTICE THAT A
RIGHT TO PERFECT A LIEN EXISTS," BUT OVER ANY ANTECEDENT LIEN WHICH IS
NOT SUFFICIENTLY PERFECTED TO PREVAIL AGAINST THE EXPLICIT PRIORITY
WHICH R.S. SEC 3466 GIVES TO CLAIMS OF THE UNITED STATES IN SITUATIONS
INVOLVING INSOLVENCY.  (FN6)  MORE PARTICULARLY, IT IS SUGGESTED THAT
THE STATE LIENS AT ISSUE HERE DID NOT MEET THE STANDARDS OF
"SPECIFICITY" UNTIL VERMONT ATTACHED THE FUNDS HELD BY THE CHITTENDEN
TRUST COMPANY, AT WHICH TIME THE FEDERAL TAX LIEN HAD ALREADY COME INTO
EXISTENCE.  THIS ARGUMENT FAILS TO DISCRIMINATE BETWEEN THE STANDARDS
APPLICABLE UNDER THE FEDERAL TAX LIEN PROVISIONS AND THOSE APPLICABLE
TO AN INSOLVENT DEBTOR UNDER R.S. SEC 3466. 

STATUTORY COMMAND THAT "WHENEVER ANY PERSON INDEBTED TO THE UNITED
STATES IS INSOLVENT  ...  DEBTS DUE TO THE UNITED STATES SHALL BE FIRST
SATISFIED."  THE STATUTE APPLIES TO ALL THE INSOLVENT'S DEBTS TO THE
GOVERNMENT, WHETHER OR NOT ARISING FROM TAXES, AND WHETHER OR NOT
SECURED BY A LIEN.  IN UNITED STATES V. GILBERT ASSOCIATES, 345 U.S.
361, WITHOUT QUESTIONING THAT THE LIENOR WAS IDENTIFIED, THE AMOUNT OF
THE LIEN CERTAIN OR THE PROPERTY SUBJECT TO THE LIEN DEFINITE, THIS
COURT ACCORDED PRIORITY TO SUBSEQUENTLY ARISING CLAIMS OF THE UNITED
STATES AGAINST AN INSOLVENT DEBTOR ON THE GROUND THAT: 

"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  ...  .  THE TAXPAYER HAD NOT BEEN
DIVESTED BY THE TOWN OF EITHER TITLE OR POSSESSION.  THE TOWN,
THEREFORE, HAD ONLY A GENERAL, UNPERFECTED LIEN."  ID., AT 366.  (FN7) 

THE STATE TAX COMMISSIONER'S ASSESSMENT AND DEMAND IN THE PRESENT
CASE CLEARLY DID NOT MEET THAT STANDARD, NOR, SO FAR AS THAT GOES, DID
THE WRIT OF ATTACHMENT SERVED ON THE CHITTENDEN TRUST COMPANY.  (FN8)
BUT THE NEW BRITAIN CASE, 347 U.S. 81, IN WHICH "THE TAXPAYER HAD NOT
BEEN DIVESTED BY THE TOWN OF EITHER TITLE OR POSSESSION," MAKES QUITE
CLEAR THAT DIFFERENT STANDARDS APPLY WHERE THE UNITED STATES' CLAIM IS
BASED ON A TAX LIEN ARISING UNDER SECS 6321 AND 6322.  (FN9)  "WHEN THE
DEBTOR IS INSOLVENT, CONGRESS HAS EXPRESSLY GIVEN PRIORITY TO THE
PAYMENT OF INDEBTEDNESS OWING THE UNITED STATES, WHETHER SECURED BY
LIENS OR OTHERWISE, BY SEC 3466 OF THE REVISED STATUTES, 31 U.S.C.  ...
SEC 191.  IN THAT CIRCUMSTANCE, WHERE ALL THE PROPERTY OF THE DEBTOR
IS INVOLVED, CONGRESS HAS PROTECTED THE FEDERAL REVENUES BY IMPOSING AN
ABSOLUTE PRIORITY (CITING UNITED STATES V. GILBERT ASSOCIATES, 345 U.S.
361; UNITED STATES V. WADDILL, HOLLAND & FLINN, 323 U.S. 353).  WHERE
THE DEBTOR IS NOT INSOLVENT, CONGRESS HAS FAILED TO EXPRESSLY PROVIDE
FOR FEDERAL PRIORITY  ... ALTHOUGH THE UNITED STATES IS FREE TO PURSUE
THE WHOLE OF THE DEBTOR'S PROPERTY WHEREVER SITUATED."  UNITED STATES
V. NEW BRITAIN, 347 U.S. 81, 85. 

IT IS UNDISPUTED THAT THE STATE'S LIEN HERE MEETS THE TEST LAID DOWN
IN NEW BRITAIN THAT "THE IDENTITY OF THE LIENOR, THE PROPERTY SUBJECT
TO THE LIEN, AND THE AMOUNT OF THE LIEN ARE ESTABLISHED."  347 U.S., AT
84.  MOREOVER, UNLIKE THOSE CASES IN WHICH THE SECURITY TRUST RATIONALE
WAS APPLIED TO SUBORDINATE LIENS ON THE GROUND THAT JUDGMENT HAD NOT
BEEN OBTAINED PRIOR TO THE TIME THE FEDERAL LIEN AROSE,  (FN10) IT IS
AS TRUE OF VERMONT'S LIEN HERE  (FN11) AS IT WAS OF THE FEDERAL LIEN IN
NEW BRITAIN THAT "THE ASSESSMENT IS GIVEN THE FORCE OF A JUDGMENT, AND
IF THE AMOUNT ASSESSED IS NOT PAID WHEN DUE, ADMINISTRATIVE OFFICIALS
MAY SEIZE THE DEBTOR'S PROPERTY TO SATISFY THE DEBT."  BULL V. UNITED
STATES, 295 U.S. 247, 260.  (FN12) 

FOR THESE REASONS, WE HOLD THAT THIS ANTECEDENT STATE LIEN ARISING
UNDER A STATUTE MODELED AFTER SECS 6321 AND 6322 IS SUFFICIENTLY CHOATE
TO OBTAIN PRIORITY OVER THE LATER FEDERAL LIEN ARISING UNDER THOSE
PROVISIONS.  ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS
AFFIRMED. 

FN1  26 U.S.C. SEC 6321 PROVIDES: 

"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT (INCLUDING ANY INTEREST, ADDITIONAL
AMOUNT, ADDITION TO TAX, OR ASSESSABLE PENALTY, TOGETHER WITH ANY COSTS
THAT MAY ACCRUE IN ADDITION THERETO) SHALL BE A LIEN IN FAVOR OF THE
UNITED STATES UPON ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR
PERSONAL, BELONGING TO SUCH PERSON." 

26 U.S.C. SEC 6322 PROVIDES: 

"UNLESS ANOTHER DATE IS SPECIFICALLY FIXED BY LAW, THE LIEN IMPOSED
BY SECTION 6321 SHALL ARISE AT THE TIME THE ASSESSMENT IS MADE AND
SHALL CONTINUE UNTIL THE LIABILITY FOR THE AMOUNT SO ASSESSED IS
SATISFIED OR BECOMES UNENFORCEABLE BY REASON OF LAPSE OF TIME." 

FN2  32 V.S.A. SEC 5765. 

FN3  SEE NOTE 1, SUPRA.  NOTICE OF THE FEDERAL LIEN WAS FILED ON JUNE
2, 1959, PURSUANT TO 26 U.S.C. SEC 6323, WHICH PROVIDES: 

"(A) INVALIDITY OF LIEN WITHOUT NOTICE.  EXCEPT AS OTHERWISE PROVIDED
IN SUBSECTION (C), THE LIEN IMPOSED BY SECTION 6321 SHALL NOT BE VALID
AS AGAINST ANY MORTGAGEE, PLEDGEE, PURCHASER, OR JUDGMENT CREDITOR
UNTIL NOTICE THEREOF HAS BEEN FILED BY THE SECRETARY OR HIS DELEGATE -
... ." 

NO CLAIM IS MADE HERE THAT VERMONT'S LIEN COMES WITHIN ANY OF THE
FOUR CLASSIFICATIONS TO WHICH SEC 6323 ACCORDS PRIORITY UNTIL NOTICE OF
THE FEDERAL TAX LIEN HAS BEEN FILED.  CONSEQUENTLY, WE PUT TO ONE SIDE
SUCH CASES AS UNITED STATES V. PIONEER AMERICAN INS. CO., 374 U.S. 84,
UNITED STATES V. BALL CONSTRUCTION CO., 355 U.S. 587, AND UNITED STATES
V. SCOVIL, 348 U.S. 218, WHICH ARE CONCERNED WITH THE FEDERAL STANDARDS
TO BE APPLIED IN DETERMINING WHETHER THE SECURITY INTERESTS ENVISAGED
IN THAT PROVISION HAVE IN FACT BEEN CREATED.  SEE ALSO UNITED STATES V.
GILBERT ASSOCIATES, 345 U.S. 361, 363-365.    FN4  SEE ALSO UNITED
STATES V. ACRI, 348 U.S. 211 (ATTACHMENT LIEN). 

FN5  UNITED STATES V. HULLEY, 358 U.S. 66; UNITED STATES V.
VORREITER, 355 U.S. 15; UNITED STATES V. WHITE BEAR BREWING CO., 350
U.S. 1010; UNITED STATES V. COLOTTA, 350 U.S. 808. 

FN6  REVISED STATUTES SEC 3466 PROVIDES: 

"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 A ABSCONDING, CONCEALED, OR ABSENT DEBTOR ARE ATTACHED BY
PROCESS OF LAW, AS TO CASES IN WHICH AN ACT OF BANKRUPTCY IS
COMMITTED." 

FN7  SEE ALSO ILLINOIS V. CAMPBELL, 329 U.S. 362, 375-376; UNITED
STATES V. WADDILL CO., 323 U.S. 353, 359-360. 

FN8  INDEED, THIS COURT HAS REPEATEDLY RESERVED THE QUESTION WHETHER
THE PRIORITY GIVEN THE UNITED STATES BY R.S. SEC 3466 CAN BE OVERCOME
EVEN BY A PRIOR SPECIFIC AND PERFECTED LIEN.  UNITED STATES V. GILBERT
ASSOCIATES, 345 U.S. 361, 365; ILLINOIS V. CAMPBELL, 329 U.S. 362, 370;
UNITED STATES V. WADDILL CO., 323 U.S. 353, 355-356; UNITED STATES V.
TEXAS, 314 U.S. 480, 484-486; NEW YORK V. MACLAY, 288 U.S. 290, 294;
SPOKANE COUNTY V. UNITED STATES, 279 U.S. 80, 95. 

FN9  SEE ALSO CREST FINANCE CO. V. UNITED STATES, 368 U.S. 347. 

FN10  SEE NOTES 4 AND 5, SUPRA, AND ACCOMPANYING TEXT. 

FN11  SEE 317 F.2D, AT 448, N. 2. 

FN12  THE MUNICIPAL LIENS ACCORDED PRIORITY IN NEW BRITAIN WERE ALSO
CHARACTERIZED AS SUMMARILY ENFORCEABLE.  SEE BRIEF FOR THE UNITED
STATES, NO. 92, 1953 TERM, P. 27, N. 13. 
..END :















BAGGETT V. BULLITT 377 U.S. 360 


NO. 220.  ARGUED MARCH 24, 1964.  - DECIDED JUNE 1, 1964.  - 215 F.
SUPP. 439, REVERSED. 


THIS CLASS ACTION WAS BROUGHT BY MEMBERS OF THE FACULTY, STAFF, AND
STUDENTS OF THE UNIVERSITY OF WASHINGTON FOR A JUDGMENT DECLARING
UNCONSTITUTIONAL 1931 AND 1955 STATE STATUTES REQUIRING THE TAKING OF
OATHS, ONE FOR TEACHERS AND THE OTHER FOR ALL STATE EMPLOYEES,
INCLUDING TEACHERS, AS A CONDITION OF EMPLOYMENT.  THE 1931 OATH
REQUIRES TEACHERS TO SWEAR, BY PRECEPT AND EXAMPLE, TO PROMOTE RESPECT
FOR THE FLAG AND THE INSTITUTIONS OF THE UNITED STATES AND THE STATE OF
WASHINGTON, REVERENCE FOR LAW AND ORDER AND UNDIVIDED ALLEGIANCE TO THE
GOVERNMENT OF THE UNITED STATES.  THE 1955 OATH FOR STATE EMPLOYEES,
WHICH INCORPORATES PROVISIONS OF THE STATE SUBVERSIVE ACTIVITIES ACT,
REQUIRES THE AFFIANT TO SWEAR THAT HE IS NOT A "SUBVERSIVE PERSON":
THAT HE DOES NOT COMMIT, OR ADVISE, TEACH, ABET OR ADVOCATE ANOTHER TO
COMMIT OR AID IN THE COMMISSION OF ANY ACT INTENDED TO OVERTHROW OR
ALTER, OR ASSIST IN THE OVERTHROW OR ALTERATION, OF THE CONSTITUTIONAL
FORM OF GOVERNMENT BY REVOLUTION, FORCE OR VIOLENCE.  "SUBVERSIVE
ORGANIZATION" AND "FOREIGN SUBVERSIVE ORGANIZATION" ARE DEFINED IN
SIMILAR TERMS AND THE COMMUNIST PARTY IS DECLARED A SUBVERSIVE
ORGANIZATION.  A THREE-JUDGE DISTRICT COURT HELD THAT THE 1955 STATUTE
AND OATH WERE NOT UNDULY VAGUE AND DID NOT VIOLATE THE FIRST AND
FOURTEENTH AMENDMENTS, AND IT ABSTAINED FROM RULING ON THE 1931 OATH
UNTIL IT WAS CONSIDERED BY THE STATE COURTS.  HELD: 

1.  THE PROVISIONS OF THE 1955 STATUTE AND THE 1931 ACT VIOLATE DUE
PROCESS SINCE THEY, AS WELL AS THE OATHS BASED THEREON, ARE UNDULY
VAGUE, UNCERTAIN AND BROAD.  CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368
U.S. 278, FOLLOWED.  PP. 361-372. 

2.  A STATE CANNOT REQUIRE AN EMPLOYEE TO TAKE AN UNDULY VAGUE OATH
CONTAINING A PROMISE OF FUTURE CONDUCT AT THE RISK OF PROSECUTION FOR
PERJURY OR LOSS OF EMPLOYMENT, PARTICULARLY WHERE THE EXERCISE OF FIRST
AMENDMENT FREEDOMS MAY THEREBY BE DETERRED.  PP. 373-374. 

3.  FEDERAL COURTS DO NOT AUTOMATICALLY ABSTAIN WHEN FACED WITH A
DOUBTFUL ISSUE OF STATE LAW, SINCE ABSTENTION INVOLVES A DISCRETIONARY
EXERCISE OF EQUITY POWER.  PP. 375-379. 

(A)  THERE ARE NO SPECIAL CIRCUMSTANCES WARRANTING APPLICATION OF THE
DOCTRINE HERE.  P. 375. 

(B)  CONSTRUCTION OF THE 1931 OATH CANNOT ELIMINATE THE VAGUENESS
FROM ITS TERMS, AND WOULD PROBABLY RAISE OTHER CONSTITUTIONAL ISSUES. 
P. 378. 

(C)  ABSTENTION LEADS TO PIECEMEAL ADJUDICATION AND PROTRACTED
DELAYS, A COSTLY RESULT WHERE FIRST AMENDMENT FREEDOMS MAY BE
INHIBITED.  PP. 378-379. 

BAGGETT ET AL. V. BULLITT ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF WASHINGTON. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, APPROXIMATELY 64 IN NUMBER, ARE MEMBERS OF THE FACULTY,
STAFF AND STUDENT BODY OF THE UNIVERSITY OF WASHINGTON WHO BROUGHT THIS
CLASS ACTION ASKING FOR A JUDGMENT DECLARING UNCONSTITUTIONAL TWO
WASHINGTON STATUTES REQUIRING THE EXECUTION OF TWO DIFFERENT OATHS BY
STATE EMPLOYEES AND FOR AN INJUNCTION AGAINST THE ENFORCEMENT OF THESE
STATUTES BY APPELLEES, THE PRESIDENT OF THE UNIVERSITY, MEMBERS OF THE
WASHINGTON STATE BOARD OF REGENTS AND THE STATE ATTORNEY GENERAL. 

THE STATUTES UNDER ATTACK ARE CHAPTER 377, LAWS OF 1955, AND CHAPTER
103, LAWS OF 1931, BOTH OF WHICH REQUIRE EMPLOYEES OF THE STATE OF
WASHINGTON TO TAKE THE OATHS PRESCRIBED IN THE STATUTES AS A CONDITION
OF THEIR EMPLOYMENT.  THE 1931 LEGISLATION APPLIES ONLY TO TEACHERS,
WHO, UPON APPLYING FOR A LICENSE TO TEACH OR RENEWING AN EXISTING
CONTRACT, ARE REQUIRED TO SUBSCRIBE TO THE FOLLOWING:

"I SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT THE CONSTITUTION AND
LAWS OF THE UNITED STATES OF AMERICA AND OF THE STATE OF WASHINGTON,
AND WILL BY PRECEPT AND EXAMPLE PROMOTE RESPECT FOR THE FLAG AND THE
INSTITUTIONS OF THE UNITED STATES OF AMERICA AND THE STATE OF
WASHINGTON, REVERENCE FOR LAW AND ORDER AND UNDIVIDED ALLEGIANCE TO THE
GOVERNMENT OF THE UNITED STATES."  WASH. LAWS 1931, C. 103. 

THE OATH REQUIREMENTS OF THE 1955 ACT, WASH. LAWS 1955, C. 377,
APPLICABLE TO ALL STATE EMPLOYEES, INCORPORATE VARIOUS PROVISIONS OF
THE WASHINGTON SUBVERSIVE ACTIVITIES ACT OF 1951, WHICH PROVIDES
GENERALLY THAT "NO SUBVERSIVE PERSON, AS DEFINED IN THIS ACT, SHALL BE
ELIGIBLE FOR EMPLOYMENT IN, OR APPOINTMENT TO ANY OFFICE, OR ANY
POSITION OF TRUST OR PROFIT IN THE GOVERNMENT, OR IN THE ADMINISTRATION
OF THE BUSINESS, OF THIS STATE, OR OF ANY COUNTY, MUNICIPALITY, OR
OTHER POLITICAL SUBDIVISION OF THIS STATE."  WASH. REV. CODE SEC
9.81.060.  THE TERM "SUBVERSIVE PERSON" IS DEFINED AS FOLLOWS: 

"'SUBVERSIVE PERSON' MEANS ANY PERSON WHO COMMITS, ATTEMPTS TO
COMMIT, OR AIDS IN THE COMMISSION, OR ADVOCATES, ABETS, ADVISES OR
TEACHES BY ANY MEANS ANY PERSON TO COMMIT, ATTEMPT TO COMMIT, OR AID IN
THE COMMISSION OF ANY ACT INTENDED TO OVERTHROW, DESTROY OR ALTER, OR
TO ASSIST IN THE OVERTHROW, DESTRUCTION OR ALTERATION OF, THE
CONSTITUTIONAL FORM OF THE GOVERNMENT OF THE UNITED STATES, OR OF THE
STATE OF WASHINGTON, OR ANY POLITICAL SUBDIVISION OF EITHER OF THEM BY
REVOLUTION, FORCE, OR VIOLENCE; OR WHO WITH KNOWLEDGE THAT THE
ORGANIZATION IS AN ORGANIZATION AS DESCRIBED IN SUBSECTIONS (2) AND (3)
HEREOF, BECOMES OR REMAINS A MEMBER OF A SUBVERSIVE ORGANIZATION OR A
FOREIGN SUBVERSIVE ORGANIZATION."  WASH. REV. CODE SEC 9.81.010(5). 

THE ACT GOES ON TO DEFINE AT SIMILAR LENGTH AND IN SIMILAR TERMS
"SUBVERSIVE ORGANIZATION" AND "FOREIGN SUBVERSIVE ORGANIZATION" AND TO
DECLARE THE COMMUNIST PARTY A SUBVERSIVE ORGANIZATION AND MEMBERSHIP
THEREIN A SUBVERSIVE ACTIVITY.  (FN1) 

ON MAY 28, 1962, SOME FOUR MONTHS AFTER THIS COURT'S DISMISSAL OF THE
APPEAL IN NOSTRAND V. LITTLE, 368 U.S. 436, ALSO A CHALLENGE TO THE
1955 OATH,  (FN2) THE UNIVERSITY PRESIDENT, ACTING PURSUANT TO
DIRECTIONS OF THE BOARD OF REGENTS, ISSUED A MEMORANDUM TO ALL
UNIVERSITY EMPLOYEES NOTIFYING THEM THAT THEY WOULD BE REQUIRED TO TAKE
AN OATH.  OATH FORM A  (FN3) REQUIRES ALL TEACHING PERSONNEL TO SWEAR
TO THE OATH OF ALLEGIANCE SET OUT ABOVE, TO AVER THAT THEY HAVE READ,
ARE FAMILIAR WITH AND UNDERSTAND THE PROVISIONS DEFINING "SUBVERSIVE
PERSON" IN THE SUBVERSIVE ACTIVITIES ACT OF 1951 AND TO DISCLAIM BEING
A SUBVERSIVE PERSON AND MEMBERSHIP IN THE COMMUNIST PARTY OR ANY OTHER
SUBVERSIVE OR FOREIGN SUBVERSIVE ORGANIZATION.  OATH FORM B  (FN4)
REQUIRES OTHER STATE EMPLOYEES TO SUBSCRIBE TO ALL OF THE ABOVE
PROVISIONS EXCEPT THE 1931 OATH.  BOTH FORMS PROVIDE THAT THE OATH AND
STATEMENTS PERTINENT THERETO ARE MADE SUBJECT TO THE PENALTIES OF
PERJURY. 

PURSUANT TO 28 U.S.C. SECS 2281, 2284, A THREE-JUDGE DISTRICT COURT
WAS CONVENED AND A TRIAL WAS HAD.  THAT COURT DETERMINED THAT THE 1955
OATH AND UNDERLYING STATUTORY PROVISIONS DID NOT INFRINGE UPON ANY
FIRST AND FOURTEENTH AMENDMENT FREEDOMS AND WERE NOT UNDULY VAGUE.  IN
RESPECT TO THE CLAIM THAT THE 1931 OATH WAS UNCONSTITUTIONALLY VAGUE ON
ITS FACE, THE COURT HELD THAT ALTHOUGH THE CHALLENGE RAISED A
SUBSTANTIAL CONSTITUTIONAL ISSUE, ADJUDICATION WAS NOT PROPER IN THE
ABSENCE OF PROCEEDINGS IN THE STATE COURTS WHICH MIGHT RESOLVE OR AVOID
THE CONSTITUTIONAL ISSUE.  THE ACTION WAS DISMISSED.  215 F. SUPP.
439.  WE NOTED PROBABLE JURISDICTION BECAUSE OF THE PUBLIC IMPORTANCE
OF THIS TYPE OF LEGISLATION AND THE RECURRING SERIOUS CONSTITUTIONAL
QUESTIONS WHICH IT PRESENTS.  375 U.S. 808.  WE REVERSE. 

I. 

APPELLANTS CONTEND IN THIS COURT THAT THE OATH REQUIREMENTS AND THE
STATUTORY PROVISIONS ON WHICH THEY ARE BASED ARE INVALID ON THEIR FACE
BECAUSE THEIR LANGUAGE IS UNDULY VAGUE, UNCERTAIN AND BROAD.  WE AGREE
WITH THIS CONTENTION AND THEREFORE, WITHOUT REACHING THE NUMEROUS OTHER
CONTENTIONS PRESSED UPON US, CONFINE OUR CONSIDERATIONS TO THAT
PARTICULAR QUESTION.  (FN5) 

IN CRAMP V. BOARD OF PUBLIC INSTRUCTION, 368 U.S. 278, THE COURT
INVALIDATED AN OATH REQUIRING TEACHERS AND OTHER EMPLOYEES OF THE STATE
TO SWEAR THAT THEY HAD NEVER LENT THEIR "AID, SUPPORT, ADVICE, COUNSEL
OR INFLUENCE TO THE COMMUNIST PARTY" BECAUSE THE OATH WAS LACKING IN
"TERMS SUSCEPTIBLE OF OBJECTIVE MEASUREMENT" AND FAILED TO INFORM AS TO
WHAT THE STATE COMMANDED OR FORBADE.  THE STATUTE THEREFORE FELL WITHIN
THE COMPASS OF THOSE DECISIONS OF THE COURT HOLDING THAT A LAW
FORBIDDING OR REQUIRING CONDUCT IN TERMS SO VAGUE THAT MEN OF COMMON
INTELLIGENCE MUST NECESSARILY GUESS AT ITS MEANING AND DIFFER AS TO ITS
APPLICATION VIOLATES DUE PROCESS OF LAW.  CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U.S. 385; LANZETTA V. NEW JERSEY, 306 U.S. 451;
JOSEPH BURSTYN, INC., V. WILSON, 343 U.S. 495; UNITED STATES V.
CARDIFF, 344 U.S. 174; CHAMPLIN REFINING CO. V. CORPORATION COMM'N OF
OKLAHOMA, 286 U.S. 210. 

THE OATH REQUIRED BY THE 1955 STATUTE SUFFERS FROM SIMILAR
INFIRMITIES.  A TEACHER MUST SWEAR THAT HE IS NOT A SUBVERSIVE PERSON:
THAT HE IS NOT ONE WHO COMMITS AN ACT OR WHO ADVISES, TEACHES, ABETS OR
ADVOCATES BY ANY MEANS ANOTHER PERSON TO COMMIT OR AID IN THE
COMMISSION OF ANY ACT INTENDED TO OVERTHROW OR ALTER, OR TO ASSIST THE
OVERTHROW OR ALTERATION, OF THE CONSTITUTIONAL FORM OF GOVERNMENT BY
REVOLUTION, FORCE OR VIOLENCE.  A SUBVERSIVE ORGANIZATION IS DEFINED AS
ONE WHICH ENGAGES IN OR ASSISTS ACTIVITIES INTENDED TO ALTER OR
OVERTHROW THE GOVERNMENT BY FORCE OR VIOLENCE OR WHICH HAS AS A PURPOSE
THE COMMISSION OF SUCH ACTS.  THE COMMUNIST PARTY IS DECLARED IN THE
STATUTE TO BE A SUBVERSIVE ORGANIZATION, THAT IS, IT IS PRESUMED THAT
THE PARTY DOES AND WILL ENGAGE IN ACTIVITIES INTENDED TO OVERTHROW THE
GOVERNMENT.  (FN6)  PERSONS REQUIRED TO SWEAR THEY UNDERSTAND THIS OATH
MAY QUITE REASONABLY CONCLUDE THAT ANY PERSON WHO AIDS THE COMMUNIST
PARTY OR TEACHES OR ADVISES KNOWN MEMBERS OF THE PARTY IS A SUBVERSIVE
PERSON BECAUSE SUCH TEACHING OR ADVICE MAY NOW OR AT SOME FUTURE DATE
AID THE ACTIVITIES OF THE PARTY.  TEACHING AND ADVISING ARE CLEARLY
ACTS, AND ONE CANNOT CONFIDENTLY ASSERT THAT HIS COUNSEL, AID,
INFLUENCE OR SUPPORT WHICH ADDS TO THE RESOURCES, RIGHTS AND KNOWLEDGE
OF THE COMMUNIST PARTY OR ITS MEMBERS DOES NOT AID THE PARTY IN ITS
ACTIVITIES, ACTIVITIES WHICH THE STATUTE TELLS US ARE ALL IN
FURTHERANCE OF THE STATED PURPOSE OF OVERTHROWING THE GOVERNMENT BY
REVOLUTION, FORCE, OR VIOLENCE.  THE QUESTIONS PUT BY THE COURT IN
CRAMP MAY WITH EQUAL FORCE BE ASKED HERE.  DOES THE STATUTE REACH
ENDORSEMENT OR SUPPORT FOR COMMUNIST CANDIDATES FOR OFFICE?  DOES IT
REACH A LAWYER WHO REPRESENTS THE COMMUNIST PARTY OR ITS MEMBERS OR A
JOURNALIST WHO DEFENDS CONSTITUTIONAL RIGHTS OF THE COMMUNIST PARTY OR
ITS MEMBERS OR ANYONE WHO SUPPORTS ANY CAUSE WHICH IS LIKEWISE
SUPPORTED BY COMMUNISTS OR THE COMMUNIST PARTY?  THE SUSCEPTIBILITY OF
THE STATUTORY LANGUAGE TO REQUIRE FORSWEARING OF AN UNDEFINED VARIETY
OF "GUILTLESS KNOWING BEHAVIOR" IS WHAT THE COURT CONDEMNED IN CRAMP. 
THIS STATUTE, LIKE THE ONE AT ISSUE IN CRAMP, IS UNCONSTITUTIONALLY
VAGUE.  (FN7) 

THE WASHINGTON STATUTE SUFFERS FROM ADDITIONAL DIFFICULTIES ON
VAGUENESS GROUNDS.  A PERSON IS SUBVERSIVE NOT ONLY IF HE HIMSELF
COMMITS THE SPECIFIED ACTS BUT IF HE ABETS OR ADVISES ANOTHER IN AIDING
A THIRD PERSON TO COMMIT AN ACT WHICH WILL ASSIST YET A FOURTH PERSON
IN THE OVERTHROW OR ALTERATION OF CONSTITUTIONAL GOVERNMENT.  THE
WASHINGTON SUPREME COURT HAS SAID THAT KNOWLEDGE IS TO BE READ INTO
EVERY PROVISION AND WE ACCEPT THIS CONSTRUCTION.  NOSTRAND V. BALMER,
53 WASH. 2D 460, 483-484, 335 P.2D 10, 24; NOSTRAND V. LITTLE, 58 WASH.
2D 111, 123-124, 361 P.2D 551, 559.  BUT WHAT IS IT THAT THE
WASHINGTON PROFESSOR MUST "KNOW"?  MUST HE KNOW THAT HIS AID OR
TEACHING WILL BE USED BY ANOTHER AND THAT THE PERSON AIDED HAS THE
REQUISITE GUILTY INTENT OR IS IT SUFFICIENT THAT HE KNOW THAT HIS AID
OR TEACHING WOULD OR MIGHT BE USEFUL TO OTHERS IN THE COMMISSION OF
ACTS INTENDED TO OVERTHROW THE GOVERNMENT?  IS IT SUBVERSIVE ACTIVITY,
FOR EXAMPLE, TO ATTEND AND PARTICIPATE IN INTERNATIONAL CONVENTIONS OF
MATHEMATICIANS AND EXCHANGE VIEWS WITH SCHOLARS FROM COMMUNIST
COUNTRIES?  WHAT ABOUT THE EDITOR OF A SCHOLARLY JOURNAL WHO ANALYZES
AND CRITICIZES THE MANUSCRIPTS OF COMMUNIST SCHOLARS SUBMITTED FOR
PUBLICATION?  IS SELECTING OUTSTANDING SCHOLARS FROM COMMUNIST
COUNTRIES AS VISITING PROFESSORS AND ADVISING, TEACHING, OR CONSULTING
WITH THEM AT THE UNIVERSITY OF WASHINGTON A SUBVERSIVE ACTIVITY IF SUCH
SCHOLARS ARE KNOWN TO BE COMMUNISTS, OR REGARDLESS OF THEIR
AFFILIATIONS, REGULARLY TEACH STUDENTS WHO ARE MEMBERS OF THE COMMUNIST
PARTY, WHICH BY STATUTORY DEFINITION IS SUBVERSIVE AND DEDICATED TO THE
OVERTHROW OF THE GOVERNMENT? 

THE WASHINGTON OATH GOES BEYOND OVERTHROW OR ALTERATION BY FORCE OR
VIOLENCE.  IT EXTENDS TO ALTERATION BY "REVOLUTION" WHICH, UNLESS
WHOLLY REDUNDANT AND ITS ORDINARY MEANING DISTORTED, INCLUDES ANY RAPID
OR FUNDAMENTAL CHANGE.  WOULD, THEREFORE, ANY ORGANIZATION OR ANY
PERSON SUPPORTING, ADVOCATING OR TEACHING PEACEFUL BUT FAR-REACHING
CONSTITUTIONAL AMENDMENTS BE ENGAGED IN SUBVERSIVE ACTIVITY?  COULD ONE
SUPPORT THE REPEAL OF THE TWENTY-SECOND AMENDMENT OR PARTICIPATION BY
THIS COUNTRY IN A WORLD GOVERNMENT?  (FN8)

                 II. 

WE ALSO CONCLUDE THAT THE 1931 OATH OFFENDS DUE PROCESS BECAUSE OF
VAGUENESS.  THE OATH EXACTS A PROMISE THAT THE AFFIANT WILL, BY PRECEPT
AND EXAMPLE, PROMOTE RESPECT FOR THE FLAG AND THE INSTITUTIONS OF THE
UNITED STATES AND THE STATE OF WASHINGTON.  THE RANGE OF ACTIVITIES
WHICH ARE OR MIGHT BE DEEMED INCONSISTENT WITH THE REQUIRED PROMISE IS
VERY WIDE INDEED.  THE TEACHER WHO REFUSED TO SALUTE THE FLAG OR
ADVOCATED REFUSAL BECAUSE OF RELIGIOUS BELIEFS MIGHT WELL BE ACCUSED OF
BREACHING HIS PROMISE.  CF. WEST VIRGINIA STATE BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624.  EVEN CRITICISM OF THE DESIGN OR COLOR SCHEME
OF THE STATE FLAG OR UNFAVORABLE COMPARISON OF IT WITH THAT OF A SISTER
STATE OR FOREIGN COUNTRY COULD BE DEEMED DISRESPECTFUL AND THEREFORE
VIOLATIVE OF THE OATH.  AND WHAT ARE "INSTITUTIONS" FOR THE PURPOSES OF
THIS OATH?  IS IT EVERY "PRACTICE, LAW, CUSTOM, ETC., WHICH IS A
MATERIAL AND PERSISTENT ELEMENT IN THE LIFE OR CULTURE OF AN ORGANIZED
SOCIAL GROUP" OR EVERY "ESTABLISHED SOCIETY OR CORPORATION," EVERY
"ESTABLISHMENT, ESPECIALLY ONE OF A PUBLIC CHARACTER"?  (FN9)  THE OATH
MAY PREVENT A PROFESSOR FROM CRITICIZING HIS STATE JUDICIAL SYSTEM OR
THE SUPREME COURT OR THE INSTITUTION OF JUDICIAL REVIEW.  OR IT MIGHT
BE DEEMED TO PROSCRIBE ADVOCATING THE ABOLITION, FOR EXAMPLE, OF THE
CIVIL RIGHTS COMMISSION, THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES,
OR FOREIGN AID. 

IT IS LIKEWISE DIFFICULT TO ASCERTAIN WHAT MIGHT BE DONE WITHOUT
TRANSGRESSING THE PROMISE TO "PROMOTE  ...  UNDIVIDED ALLEGIANCE TO THE
GOVERNMENT OF THE UNITED STATES."  IT WOULD NOT BE UNREASONABLE FOR THE
SERIOUS-MINDED OATHTAKER TO CONCLUDE THAT HE SHOULD DISPENSE WITH
LECTURES VOICING FAR-REACHING CRITICISM OF ANY OLD OR NEW POLICY
FOLLOWED BY THE GOVERNMENT OF THE UNITED STATES.  HE COULD FIND IT
QUESTIONABLE UNDER THIS LANGUAGE TO ALLY HIMSELF WITH ANY INTEREST
GROUP DEDICATED TO OPPOSING ANY CURRENT PUBLIC POLICY OR LAW OF THE
FEDERAL GOVERNMENT, FOR IF HE DID, HE MIGHT WELL BE ACCUSED OF PLACING
LOYALTY TO THE GROUP ABOVE ALLEGIANCE TO THE UNITED STATES. 

INDULGING EVERY PRESUMPTION OF A NARROW CONSTRUCTION OF THE
PROVISIONS OF THE 1931 OATH, CONSISTENT, HOWEVER, WITH A PROPER RESPECT
FOR THE ENGLISH LANGUAGE, WE CANNOT SAY THAT THIS OATH PROVIDES AN
ASCERTAINABLE STANDARD OF CONDUCT OR THAT IT DOES NOT REQUIRE MORE THAN
A STATE MAY COMMAND UNDER THE GUARANTEES OF THE FIRST AND FOURTEENTH
AMENDMENTS.    AS IN CRAMP V. BOARD OF PUBLIC INSTRUCTION, "THE VICE OF
UNCONSTITUTIONAL VAGUENESS IS FURTHER AGGRAVATED WHERE, AS HERE, THE
STATUTE IN QUESTION OPERATES TO INHIBIT THE EXERCISE OF INDIVIDUAL
FREEDOMS AFFIRMATIVELY PROTECTED BY THE CONSTITUTION."  368 U.S. 278,
287.  WE ARE DEALING WITH INDEFINITE STATUTES WHOSE TERMS, EVEN
NARROWLY CONSTRUED, ABUT UPON SENSITIVE AREAS OF BASIC FIRST AMENDMENT
FREEDOMS.  THE UNCERTAIN MEANINGS OF THE OATHS REQUIRE THE OATH-TAKER -
TEACHERS AND PUBLIC SERVANTS - TO "STEER FAR WIDER OF THE UNLAWFUL
ZONE," SPEISER V. RANDALL, 357 U.S. 513, 526, THAN IF THE BOUNDARIES OF
THE FORBIDDEN AREAS WERE CLEARLY MARKED.  THOSE WITH A CONSCIENTIOUS
REGARD FOR WHAT THEY SOLEMNLY SWEAR OR AFFIRM, SENSITIVE TO THE PERILS
POSED BY THE OATH'S INDEFINITE LANGUAGE, AVOID THE RISK OF LOSS OF
EMPLOYMENT, AND PERHAPS PROFESSION, ONLY BY RESTRICTING THEIR CONDUCT
TO THAT WHICH IS UNQUESTIONABLY SAFE.  FREE SPEECH MAY NOT BE SO
INHIBITED.  (FN10)  SMITH V. CALIFORNIA, 361 U.S. 147; STROMBERG V.
CALIFORNIA, 283 U.S. 359, 369.  SEE ALSO HERNDON V. LOWRY, 301 U.S.
242; THORNHILL V. ALABAMA, 310 U.S. 88; AND WINTERS V. NEW YORK, 333
U.S. 507. 

                  III. 

THE STATE LABELS AS WHOLLY FANCIFUL THE SUGGESTED POSSIBLE COVERAGE
OF THE TWO OATHS.  IT MAY WELL BE CORRECT, BUT THE CONTENTION ONLY
EMPHASIZES THE DIFFICULTIES WITH THE TWO STATUTES; FOR IF THE OATHS DO
NOT REACH SOME OR ANY OF THE BEHAVIOR SUGGESTED, WHAT SPECIFIC CONDUCT
DO THE OATHS COVER?  WHERE DOES FANCIFUL POSSIBILITY END AND INTENDED
COVERAGE BEGIN? 

IT WILL NOT DO TO SAY THAT A PROSECUTOR'S SENSE OF FAIRNESS AND THE
CONSTITUTION WOULD PREVENT A SUCCESSFUL PERJURY PROSECUTION FOR SOME OF
THE ACTIVITIES SEEMINGLY EMBRACED WITHIN THE SWEEPING STATUTORY
DEFINITIONS.  THE HAZARD OF BEING PROSECUTED FOR KNOWING BUT GUILTLESS
BEHAVIOR NEVERTHELESS REMAINS.  "IT WOULD BE BLINKING REALITY NOT TO
ACKNOWLEDGE THAT THERE ARE SOME AMONG US ALWAYS READY TO AFFIX A
COMMUNIST LABEL UPON THOSE WHOSE IDEAS THEY VIOLENTLY OPPOSE.  AND
EXPERIENCE TEACHES US THAT PROSECUTORS TOO ARE HUMAN."  CRAMP, SUPRA,
AT 286-287.  WELL-INTENTIONED PROSECUTORS AND JUDICIAL SAFEGUARDS DO
NOT NEUTRALIZE THE VICE OF A VAGUE LAW.  NOR SHOULD WE ENCOURAGE THE
CASUAL TAKING OF OATHS BY UPHOLDING THE DISCHARGE OR EXCLUSION FROM
PUBLIC EMPLOYMENT OF THOSE WITH A CONSCIENTIOUS AND SCRUPULOUS REGARD
FOR SUCH UNDERTAKINGS. 

IT IS FURTHER ARGUED, HOWEVER, THAT, NOTWITHSTANDING THE
UNCERTAINTIES OF THE 1931 OATH AND THE STATUTE ON WHICH IT IS BASED,
THE OATH DOES NOT OFFEND DUE PROCESS BECAUSE THE VAGARIES ARE CONTAINED
IN A PROMISE OF FUTURE CONDUCT, THE BREACH OF WHICH WOULD NOT SUPPORT A
CONVICTION FOR PERJURY.  WITHOUT THE CRIMINAL SANCTIONS, IT IS SAID,
ONE NEED NOT FEAR TAKING THIS OATH, REGARDLESS OF WHETHER HE
UNDERSTANDS IT AND CAN COMPLY WITH ITS MANDATE, HOWEVER UNDERSTOOD. 
THIS CONTENTION IGNORES NOT ONLY THE EFFECT OF THE OATH ON THOSE WHO
WILL NOT SOLEMNLY SWEAR UNLESS THEY CAN DO SO HONESTLY AND WITHOUT
PREVARICATION AND RESERVATION, BUT ALSO ITS EFFECT ON THOSE WHO BELIEVE
THE WRITTEN LAW MEANS WHAT IT SAYS.  OATH FORM A CONTAINS BOTH OATHS,
AND EXPRESSLY REQUIRES THAT THE SIGNER "UNDERSTAND THAT THIS STATEMENT
AND OATH ARE MADE SUBJECT TO THE PENALTIES OF PERJURY."  MOREOVER,
WASH. REV. CODE SEC 9.72.030 PROVIDES THAT "EVERY PERSON WHO, WHETHER
ORALLY OR IN WRITING  ...  SHALL KNOWINGLY SWEAR FALSELY CONCERNING ANY
MATTER WHATSOEVER" COMMITS PERJURY IN THE SECOND DEGREE.  EVEN IF IT
CAN BE SAID THAT A CONVICTION FOR FALSELY TAKING THIS OATH WOULD NOT BE
SUSTAINED, THE POSSIBILITY OF A PROSECUTION CANNOT BE GAINSAID.  THE
STATE MAY NOT REQUIRE ONE TO CHOOSE BETWEEN SUBSCRIBING TO AN UNDULY
VAGUE AND BROAD OATH, THEREBY INCURRING THE LIKELIHOOD OF PROSECUTION,
AND CONSCIENTIOUSLY REFUSING TO TAKE THE OATH WITH THE CONSEQUENT LOSS
OF EMPLOYMENT, AND PERHAPS PROFESSION, PARTICULARLY WHERE "THE FREE
DISSEMINATION OF IDEAS MAY BE THE LOSER."  SMITH V. CALIFORNIA, 361
U.S. 147, 151.  "IT IS NOT THE PENALTY ITSELF THAT IS INVALID BUT THE
EXACTION OF OBEDIENCE TO A RULE OR STANDARD THAT IS SO VAGUE AND
INDEFINITE AS TO BE REALLY NO RULE OR STANDARD AT ALL."  CHAMPLIN
REFG.  CO. V. CORPORATION COMM'N OF OKLAHOMA, 286 U.S. 210, 243; CF.
SMALL CO. V. AMERICAN REFG.  CO., 267 U.S. 233. 

                                             IV. 

WE ARE ASKED NOT TO EXAMINE THE 1931 OATH STATUTE BECAUSE, ALTHOUGH
ON THE BOOKS FOR OVER THREE DECADES, IT HAS NEVER BEEN INTERPRETED BY
THE WASHINGTON COURTS.  THE ARGUMENT IS THAT EVER SINCE RAILROAD COMM'N
V. PULLMAN CO., 312 U.S. 496, THE COURT ON MANY OCCASIONS HAS ORDERED
ABSTENTION WHERE STATE TRIBUNALS WERE THOUGHT TO BE MORE APPROPRIATE
FOR RESOLUTION OF COMPLEX OR UNSETTLED QUESTIONS OF LOCAL LAW.  A.F.L.
V. WATSON, 327 U.S. 582; SPECTOR MOTOR SERVICE V. MCLAUGHLIN, 323 U.S.
101; HARRISON V. NAACP, 360 U.S. 167.  BECAUSE THIS COURT ORDINARILY
ACCEPTS THE CONSTRUCTION GIVEN A STATE STATUTE IN THE LOCAL COURTS AND
ALSO PRESUMES THAT THE STATUTE WILL BE CONSTRUED IN SUCH A WAY AS TO
AVOID THE CONSTITUTIONAL QUESTION PRESENTED, FOX V. WASHINGTON, 236
U.S. 273; POULOS V. NEW HAMPSHIRE, 345 U.S. 395, AN INTERPRETATION OF
THE 1931 OATH IN THE WASHINGTON COURTS IN LIGHT OF THE VAGUENESS ATTACK
MAY ELIMINATE THE NECESSITY OF DECIDING THIS ISSUE. 

WE ARE NOT PERSUADED.  THE ABSTENTION DOCTRINE IS NOT AN AUTOMATIC
RULE APPLIED WHENEVER A FEDERAL COURT IS FACED WITH A DOUBTFUL ISSUE OR
STATE LAW; IT RATHER INVOLVES A DISCRETIONARY EXERCISE OF A COURT'S
EQUITY POWERS.  ASCERTAINMENT OF WHETHER THERE EXIST THE "SPECIAL
CIRCUMSTANCES," PROPPER V. CLARK, 337 U.S. 472, PREREQUISITE TO ITS
APPLICATION MUST BE MADE ON A CASE-BY-CASE BASIS.  RAILROAD COMM'N V.
PULLMAN CO., 312 U.S. 496, 500; NAACP V. BENNETT, 360 U.S. 471.  (FN11)
THOSE SPECIAL CIRCUMSTANCES ARE NOT PRESENT HERE.  WE DOUBT, IN THE
FIRST PLACE, THAT A CONSTRUCTION OF THE OATH PROVISIONS, IN LIGHT OF
THE VAGUENESS CHALLENGE, WOULD AVOID OR FUNDAMENTALLY ALTER THE
CONSTITUTIONAL ISSUE RAISED IN THIS LITIGATION.  SEE CHICAGO V.
ATCHISON, T.&S.F.R. CO., 357 U.S. 77.  IN THE BULK OF ABSTENTION CASES
IN THIS COURT,  (FN12) INCLUDING THOSE FEW CASES WHERE VAGUENESS WAS AT
ISSUE,  (FN13) THE UNSETTLED ISSUE OF STATE LAW PRINCIPALLY CONCERNED
THE APPLICABILITY OF THE CHALLENGED STATUTE TO A CERTAIN PERSON OR A
DEFINED COURSE OF CONDUCT, WHOSE RESOLUTION IN A PARTICULAR MANNER
WOULD ELIMINATE THE CONSTITUTIONAL ISSUE AND TERMINATE THE LITIGATION. 
HERE THE UNCERTAIN ISSUE OF STATE LAW DOES NOT TURN UPON A CHOICE
BETWEEN ONE OR SEVERAL ALTERNATIVE MEANINGS OF A STATE STATUTE.  THE
CHALLENGED OATH IS NOT OPEN TO ONE OR A FEW INTERPRETATIONS, BUT TO AN
INDEFINITE NUMBER.  THERE IS NO UNCERTAINTY THAT THE OATH APPLIES TO
THE APPELLANTS AND THE ISSUE THEY RAISE IS NOT WHETHER THE OATH PERMITS
THEM TO ENGAGE IN CERTAIN DEFINABLE ACTIVITIES.  RATHER THEIR COMPLAINT
IS THAT THEY, ABOUT 64 IN NUMBER, CANNOT UNDERSTAND THE REQUIRED
PROMISE, CANNOT DEFINE THE RANGE OF ACTIVITIES IN WHICH THEY MIGHT
ENGAGE IN THE FUTURE, AND DO NOT WANT TO FORSWEAR DOING ALL THAT IS
LITERALLY OR ARGUABLY WITHIN THE PURVIEW OF THE VAGUE TERMS.  IN THESE
CIRCUMSTANCES IT IS DIFFICULT TO SEE HOW AN ABSTRACT CONSTRUCTION OF
THE CHALLENGED TERMS, SUCH AS PRECEPT, EXAMPLE, ALLEGIANCE,
INSTITUTIONS, AND THE LIKE, IN A DECLARATORY JUDGMENT ACTION COULD
ELIMINATE THE VAGUENESS FROM THESE TERMS.  IT IS FICTIONAL TO BELIEVE
THAT ANYTHING LESS THAN EXTENSIVE ADJUDICATIONS, UNDER THE IMPACT OF A
VARIETY OF FACTUAL SITUATIONS, WOULD BRING THE OATH WITHIN THE BOUNDS
OF PERMISSIBLE CONSTITUTIONAL CERTAINTY.  ABSTENTION DOES NOT REQUIRE
THIS. 

OTHER CONSIDERATIONS ALSO MILITATE AGAINST ABSTENTION HERE. 
CONSTRUCTION OF THIS OATH IN THE STATE COURT, ABSTRACTLY AND WITHOUT
REFERENCE TO CONCRETE, PARTICULARIZED SITUATIONS SO NECESSARY TO BRING
INTO FOCUS THE IMPACT OF THE TERMS ON CONSTITUTIONALLY PROTECTED RIGHTS
OF SPEECH AND ASSOCIATION, ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297
U.S. 288, 341 (BRANDEIS, J., CONCURRING), WOULD NOT ONLY HOLD LITTLE
HOPE OF ELIMINATING THE ISSUE OF VAGUENESS BUT ALSO WOULD VERY LIKELY
POSE OTHER CONSTITUTIONAL ISSUES FOR DECISION, A RESULT NOT SERVING THE
ABSTENTION-JUSTIFYING END OF AVOIDING CONSTITUTIONAL ADJUDICATION. 

WE ALSO CANNOT IGNORE THAT ABSTENTION OPERATES TO REQUIRE PIECEMEAL
ADJUDICATION IN MANY COURTS, ENGLAND V. LOUISIANA STATE BOARD OF
MEDICAL EXAMINERS, 375 U.S. 411, THEREBY DELAYING ULTIMATE ADJUDICATION
ON THE MERITS FOR AN UNDUE LENGTH OF TIME, ENGLAND, SUPRA; SPECTOR,
SUPRA; GOVERNMENT & CIVIC EMPLOYEES ORGANIZING COMMITTEE V. WINDSOR,
353 U.S. 364,  (FN14) A RESULT QUITE COSTLY WHERE THE VAGUENESS OF A
STATE STATUTE MAY INHIBIT THE EXERCISE OF FIRST AMENDMENT FREEDOMS. 
INDEED THE 1955 SUBVERSIVE PERSON OATH HAS BEEN UNDER CONTINUOUS
CONSTITUTIONAL ATTACK SINCE AT LEAST 1957, NOSTRAND V. BALMER, 53 WASH.
2D 460, 463, 335 P.2D 10, 12, AND IS NOW BEFORE THIS COURT FOR THE
THIRD TIME.  REMITTING THESE LITIGANTS TO THE STATE COURTS FOR A
CONSTRUCTION OF THE 1931 OATH WOULD FURTHER PROTRACT THESE PROCEEDINGS,
ALREADY PENDING FOR ALMOST TWO YEARS, WITH ONLY THE LIKELIHOOD THAT THE
CASE, PERHAPS YEARS LATER, WILL RETURN TO THE THREE-JUDGE DISTRICT
COURT AND PERHAPS THIS COURT FOR A DECISION ON THE IDENTICAL ISSUE
HEREIN DECIDED.  SEE CHICAGO V. ATCHISON, T.&S.F.R. CO., 357 U.S. 77,
84; PUBLIC UTILITIES COMM'N OF OHIO V. UNITED FUEL CO., 317 U.S. 456. 
(FN15) MEANWHILE, WHERE THE VAGUENESS OF THE STATUTE DETERS
CONSTITUTIONALLY PROTECTED CONDUCT, "THE FREE DISSEMINATION OF IDEAS
MAY BE THE LOSER."  SMITH V. CALIFORNIA, 361 U.S. 147, 151. 

                                              V. 

AS IN CRAMP V. BOARD OF PUBLIC INSTRUCTION, SUPRA, WE DO NOT QUESTION
THE POWER OF A STATE TO TAKE PROPER MEASURES SAFEGUARDING THE PUBLIC
SERVICE FROM DISLOYAL CONDUCT.  BUT MEASURES WHICH PURPORT TO DEFINE
DISLOYALTY MUST ALLOW PUBLIC SERVANTS TO KNOW WHAT IS AND IS NOT
DISLOYAL.  "THE FACT  ...  THAT A PERSON IS NOT COMPELLED TO HOLD
PUBLIC OFFICE CANNOT POSSIBLY BE AN EXCUSE FOR BARRING HIM FROM OFFICE
BY STATE-IMPOSED CRITERIA FORBIDDEN BY THE CONSTITUTION."  TORCASO V.
WATKINS, 367 U.S. 488, 495-496.  REVERSED. 

FN1  "'SUBVERSIVE ORGANIZATION' MEANS ANY ORGANIZATION WHICH ENGAGES
IN OR ADVOCATES, ABETS, ADVISES, OR TEACHES, OR A PURPOSE OF WHICH IS
TO ENGAGE IN OR ADVOCATE, ABET, ADVISE, OR TEACH ACTIVITIES INTENDED TO
OVERTHROW, DESTROY OR ALTER, OR TO ASSIST IN THE OVERTHROW, DESTRUCTION
OR ALTERATION OF, THE CONSTITUTIONAL FORM OF THE GOVERNMENT OF THE
UNITED STATES, OR OF THE STATE OF WASHINGTON, OR OF ANY POLITICAL
SUBDIVISION OF EITHER OF THEM, BY REVOLUTION, FORCE OR VIOLENCE." 
WASH. REV, CODE SEC 9.81.010(2). 

"'FOREIGN SUBVERSIVE ORGANIZATION' MEANS ANY ORGANIZATION DIRECTED,
DOMINATED OR CONTROLLED DIRECTLY OR INDIRECTLY BY A FOREIGN GOVERNMENT
WHICH ENGAGES IN OR ADVOCATES, ABETS, ADVISES, OR TEACHES, OR A PURPOSE
OF WHICH IS TO ENGAGE IN OR TO ADVOCATE, ABET, ADVISE, OR TEACH,
ACTIVITIES INTENDED TO OVERTHROW, DESTROY OR ALTER, OR TO ASSIST IN THE
OVERTHROW, DESTRUCTION OR ALTERATION OF THE CONSTITUTIONAL FORM OF THE
GOVERNMENT OF THE UNITED STATES, OR OF THE STATE OF WASHINGTON, OR OF
ANY POLITICAL SUBDIVISION OF EITHER OF THEM, AND TO ESTABLISH IN PLACE
THEREOF ANY FORM OF GOVERNMENT THE DIRECTION AND CONTROL OF WHICH IS TO
BE VESTED IN, OR EXERCISED BY OR UNDER, THE DOMINATION OR CONTROL OF
ANY FOREIGN GOVERNMENT, ORGANIZATION, OR INDIVIDUAL."  WASH. REV. CODE
SEC 9.81.010(3). 

"COMMUNIST PARTY DECLARED A SUBVERSIVE ORGANIZATION. 

"THE COMMUNIST PARTY IS A SUBVERSIVE ORGANIZATION WITHIN THE PURVIEW
OF CHAPTER 9.81 AND MEMBERSHIP IN THE COMMUNIST PARTY IS A SUBVERSIVE
ACTIVITY THEREUNDER."  WASH. REV. CODE SEC 9.81.083. 

FN2  ALTHOUGH THE 1931 ACT HAS NOT BEEN THE SUBJECT OF PREVIOUS
CHALLENGE, AN ATTACK UPON THE 1955 LOYALTY STATUTE WAS INSTITUTED BY
TWO OF THE APPELLANTS IN THE PRESENT CASE, PROFESSORS HOWARD NOSTRAND
AND MAX SAVELLE, WHO BROUGHT A DECLARATORY JUDGMENT ACTION IN THE
SUPERIOR COURT OF THE STATE OF WASHINGTON ASKING THAT CHAPTER 377, LAWS
OF 1955, BE DECLARED UNCONSTITUTIONAL AND THAT ITS ENFORCEMENT BE
ENJOINED.  THE WASHINGTON SUPREME COURT HELD THAT ONE SECTION WAS
UNCONSTITUTIONAL BUT SEVERABLE FROM THE REST OF THE ACT, WHOSE VALIDITY
WAS UPHELD.  NOSTRAND V. BALMER, 53 WASH. 2D 460, 335 P.2D 10.  ON
APPEAL TO THIS COURT THE DECISION OF THE WASHINGTON COURT WAS VACATED
AND THE CASE REMANDED FOR A DETERMINATION OF WHETHER EMPLOYEES WHO
REFUSED TO SIGN THE OATH WOULD BE AFFORDED A HEARING AT WHICH THEY
COULD EXPLAIN OR DEFEND THE REASONS FOR THEIR REFUSAL.  NOSTRAND V.
LITTLE, 362 U.S. 474.  THE WASHINGTON SUPREME COURT HELD UPON REMAND
THAT SINCE PROFESSORS NOSTRAND AND SAVELLE WERE TENURED PROFESSORS THE
TERMS OF THEIR CONTRACTS AND RULES PROMULGATED BY THE BOARD OF REGENTS
ENTITLED THEM TO A HEARING.  NOSTRAND V. LITTLE, 58 WASH. 2D 111, 361
P.2D 551.  THIS COURT DISMISSED A FURTHER APPEAL, NOSTRAND V. LITTLE,
368 U.S. 436.  THE ISSUE WE FIND DISPOSITIVE OF THE CASE AT BAR WAS NOT
PRESENTED TO THIS COURT IN THE ABOVE PROCEEDINGS. 

FN3                     "OATH FORM A

  "STATE OF WASHINGTON

                    "STATEMENT AND OATH FOR TEACHING FACULTY

                         OF THE UNIVERSITY OF WASHINGTON 

"I, THE UNDERSIGNED, DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL
SUPPORT THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND
OF THE STATE OF WASHINGTON, AND WILL BY PRECEPT AND EXAMPLE PROMOTE
RESPECT FOR THE FLAG AND THE INSTITUTIONS OF THE UNITED STATES OF
AMERICA AND THE STATE OF WASHINGTON, REVERENCE FOR LAW AND ORDER, AND
UNDIVIDED ALLEGIANCE TO THE GOVERNMENT OF THE UNITED STATES:    "I
FURTHER CERTIFY THAT I HAVE READ THE PROVISIONS OF RCW 9.81.010(2),
(3), AND (5); RCW 9.81.060; RCW 9.81.070; AND RCW 9.81.083, WHICH ARE
PRINTED ON THE REVERSE HEREOF; THAT I UNDERSTAND AND AM FAMILIAR WITH
THE CONTENTS THEREOF; THAT I AM NOT A SUBVERSIVE PERSON AS THEREIN
DEFINED; AND: 

"I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I AM NOT A MEMBER OF THE
COMMUNIST PARTY OR KNOWINGLY OF ANY OTHER SUBVERSIVE ORGANIZATION. 

"I UNDERSTAND THAT THIS STATEMENT AND OATH ARE MADE SUBJECT TO THE
PENALTIES OF PERJURY. 

(SIGNATURE) 

(TITLE AND DEPARTMENT)  "SUBSCRIBED AND SWORN (OR AFFIRMED) TO BEFORE
ME THIS ---- DAY OF -----, 19-- 

NOTARY PUBLIC IN AND FOR THE STATE OF WASHINGTON, RESIDING AT ---- 

"(TO BE EXECUTED IN DUPLICATE, ONE COPY TO BE RETAINED BY
INDIVIDUAL.) 

"NOTE:  THOSE DESIRING TO AFFIRM MAY STRIKE THE WORDS 'SWEAR' AND
'SWORN TO' AND SUBSTITUTE 'AFFIRM' AND 'AFFIRMED,' RESPECTIVELY." 

FN4                       "OATH FORM B

    "STATE OF WASHINGTON

           "STATEMENT AND OATH FOR STAFF OF THE UNIVERSITY OF

           WASHINGTON                 OTHER THAN TEACHING FACULTY 

"I CERTIFY THAT I HAVE READ THE PROVISIONS OF RCW 9.81.010(2), (3),
AND (5); RCW 9.81.060; RCW 9.81.070; AND RCW 9.81.083 WHICH ARE PRINTED
ON THE REVERSE HEREOF; THAT I UNDERSTAND AND AM FAMILIAR WITH THE
CONTENTS THEREOF; THAT I AM NOT A SUBVERSIVE PERSON AS THEREIN DEFINED;
AND: 

"I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I AM NOT A MEMBER OF THE
COMMUNIST PARTY OR KNOWINGLY OF ANY OTHER SUBVERSIVE ORGANIZATION. 

"I UNDERSTAND THAT THIS STATEMENT AND OATH ARE MADE SUBJECT TO THE
PENALTIES OF PERJURY. 

(SIGNATURE) 

(TITLE AND DEPARTMENT OR OFFICE) 

"SUBSCRIBED AND SWORN (OR AFFIRMED) TO BEFORE ME THIS ---- DAY OF ---
-, 19-- 

NOTARY PUBLIC IN AND FOR THE STATE OF WASHINGTON, RESIDING AT ---- 

"(TO BE EXECUTED IN DUPLICATE, ONE COPY TO BE RETAINED BY
INDIVIDUAL.) 

"NOTE:  THOSE DESIRING TO AFFIRM MAY STRIKE THE WORDS 'SWEAR' AND
'SWORN TO' AND SUBSTITUTE 'AFFIRM' AND 'AFFIRMED,' RESPECTIVELY." 

FN5  SINCE THE GROUND WE FIND DISPOSITIVE IMMEDIATELY AFFECTS THE
PROFESSORS AND OTHER STATE EMPLOYEES REQUIRED TO TAKE THE OATH, AND THE
INTERESTS OF THE STUDENTS AT THE UNIVERSITY IN ACADEMIC FREEDOM ARE
FULLY PROTECTED BY A JUDGMENT IN FAVOR OF THE TEACHING PERSONNEL, WE
HAVE NO OCCASION TO PASS ON THE STANDING OF THE STUDENTS TO BRING THIS
SUIT. 

FN6  THE DRAFTERS OF THE 1951 SUBVERSIVE ACTIVITIES ACT STATED TO THE
WASHINGTON LEGISLATURE THAT "THE COMMUNIST PARTY DOVETAILED, NATION
WIDE PROGRAM IS DESIGNED TO  ...  CREATE UNREST AND CIVIL STRIFE, AND
IMPEDE THE NORMAL PROCESSES OF STATE AND NATIONAL GOVERNMENT, ALL TO
THE END OF WEAKENING AND ULTIMATELY DESTROYING THE UNITED STATES AS A
CONSTITUTIONAL REPUBLIC AND THEREBY FACILITATING THE AVOWED SOVIET
PURPOSE OF SUBSTITUTING HERE A TOTALITARIAN DICTATORSHIP."  FIRST
REPORT OF THE JOINT LEGISLATIVE FACT-FINDING COMMITTEE ON UN-AMERICAN
ACTIVITIES IN WASHINGTON STATE, 1948, P. IV. 

FN7  THE CONTENTION THAT THE COURT FOUND NO CONSTITUTIONAL
DIFFICULTIES WITH IDENTICAL DEFINITIONS OF SUBVERSIVE PERSON AND
SUBVERSIVE ORGANIZATIONS IN GERENDE V. BOARD OF SUPERVISORS, 341 U.S.
56, IS WITHOUT MERIT.  IT WAS FORCEFULLY ARGUED IN GERENDE THAT
CANDIDATES FOR STATE OFFICE IN MARYLAND WERE REQUIRED TO TAKE AN OATH
INCORPORATING A SECTION OF THE MARYLAND STATUTES DEFINING SUBVERSIVE
PERSON AND ORGANIZATION IN THE IDENTICAL TERMS CHALLENGED HEREIN.  BUT
THE COURT REJECTED THIS INTERPRETATION OF MARYLAND LAW AND DID NOT PASS
UPON OR APPROVE THE DEFINITIONS OF SUBVERSIVE PERSON AND ORGANIZATION
CONTAINED IN THE MARYLAND STATUTES.  INSTEAD IT MADE VERY CLEAR THAT
THE JUDGMENT BELOW WAS AFFIRMED SOLELY ON THE BASIS THAT THE ACTUAL
OATH TO BE IMPOSED UNDER MARYLAND LAW REQUIRES ONE TO SWEAR THAT HE IS
NOT A PERSON WHO IS ENGAGED "'IN THE ATTEMPT TO OVERTHROW THE
GOVERNMENT BY FORCE OR VIOLENCE,' AND THAT HE IS NOT KNOWINGLY A MEMBER
OF AN ORGANIZATION ENGAGED IN SUCH AN ATTEMPT."  ID., AT 56-57.  THE
COURT SAID:  "AT THE BAR OF THIS COURT THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND DECLARED THAT HE WOULD ADVISE THE PROPER AUTHORITIES
TO ACCEPT AN AFFIDAVIT IN THESE TERMS AS SATISFYING IN FULL THE
STATUTORY REQUIREMENT.  UNDER THESE CIRCUMSTANCES AND WITH THIS
UNDERSTANDING, THE JUDGMENT OF THE MARYLAND COURT OF APPEALS IS
AFFIRMED."  ID., AT 57. 

FN8  IT IS ALSO ARGUED THAT SEC 2 OF THE SMITH ACT, 18 U.S.C. SEC
2385, UPHELD OVER A VAGUENESS CHALLENGE IN DENNIS V. UNITED STATES, 341
U.S. 494, PROSCRIBES THE SAME ACTIVITY IN THE SAME LANGUAGE AS THE
WASHINGTON STATUTE.  THIS ARGUMENT IS FOUNDED ON A MISREADING OF SEC 2
AND DENNIS V. UNITED STATES, SUPRA.

THAT SECTION PROVIDES: 

"WHOEVER KNOWINGLY OR WILLFULLY ADVOCATES, ABETS, ADVISES, OR TEACHES
THE DUTY, NECESSITY, DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR
DESTROYING THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF ANY
STATE  ...  BY FORCE OR VIOLENCE  ...  ." 

THE CONVICTIONS UNDER THIS PROVISION WERE SUSTAINED IN DENNIS, SUPRA,
ON THE CONSTRUCTION THAT THE STATUTE MEANS "TEACHING AND ADVOCACY OF
ACTION FOR THE ACCOMPLISHMENT OF OVERTHROWING OR DESTROYING ORGANIZED
GOVERNMENT BY LANGUAGE REASONABLY AND ORDINARILY CALCULATED TO INCITE
PERSONS TO SUCH ACTION  ...  AS SPEEDILY AS CIRCUMSTANCES WOULD
PERMIT."  ID., AT 511-512.  IN CONNECTION WITH THE VAGUENESS ATTACK, IT
WAS NOTED THAT "THIS IS A FEDERAL STATUTE WHICH WE MUST INTERPRET AS
WELL AS JUDGE.  HEREIN LIES THE FALLACY OF RELIANCE UPON THE MANNER IN
WHICH THIS COURT HAS TREATED JUDGMENTS OF STATE COURTS  ...  ."  ID.,
AT 502. 

IN REVERSING CONVICTIONS UNDER THIS SECTION IN YATES V. UNITED
STATES, 354 U.S. 298, THE COURT MADE QUITE CLEAR EXACTLY WHAT ALL THE
ABOVE TERMS DO AND DO NOT PROSCRIBE:  "THE SMITH ACT REACHES ONLY
ADVOCACY OF ACTION FOR THE OVERTHROW OF GOVERNMENT BY FORCE AND
VIOLENCE."  ID., AT 324. 

FN9  WEBSTER'S NEW INT. DICTIONARY (2D ED.), AT 1288. 

FN10  "THE MAINTENANCE OF THE OPPORTUNITY FOR FREE POLITICAL
DISCUSSION TO THE END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF
THE PEOPLE AND THAT CHANGES MAY BE OBTAINED BY LAWFUL MEANS, AN
OPPORTUNITY ESSENTIAL TO THE SECURITY OF THE REPUBLIC, IS A FUNDAMENTAL
PRINCIPLE OF OUR CONSTITUTIONAL SYSTEM.  A STATUTE WHICH UPON ITS FACE
...  IS SO VAGUE AND INDEFINITE AS TO PERMIT THE PUNISHMENT OF THE FAIR
USE OF THIS OPPORTUNITY IS REPUGNANT TO THE GUARANTY OF LIBERTY
CONTAINED IN THE FOURTEENTH AMENDMENT."  STROMBERG V. CALIFORNIA, 283
U.S. 359, 369.  "STATUTES RESTRICTIVE OF OR PURPORTING TO PLACE LIMITS
TO THOSE FIRST AMENDMENT FREEDOMS MUST BE NARROWLY DRAWN TO MEET THE
PRECISE EVIL THE LEGISLATURE SEEKS TO CURB  ...  AND  ...  THE CONDUCT
PROSCRIBED MUST BE DEFINED SPECIFICALLY SO THAT THE PERSON OR PERSONS
AFFECTED REMAIN SECURE AND UNRESTRAINED IN THEIR RIGHTS TO ENGAGE IN
ACTIVITIES NOT ENCOMPASSED BY THE LEGISLATION."  UNITED STATES V.
CONGRESS OF INDUSTRIAL ORGANIZATIONS, 335 U.S. 106, 141-142 (RUTLEDGE,
J., CONCURRING). 

FN11  "WHEN THE VALIDITY OF A STATE STATUTE, CHALLENGED UNDER THE
UNITED STATES CONSTITUTION, IS PROPERLY FOR ADJUDICATION BEFORE A
UNITED STATES DISTRICT COURT, REFERENCE TO THE STATE COURTS FOR
CONSTRUCTION OF THE STATUTE SHOULD NOT AUTOMATICALLY BE MADE."  NAACP
V. BENNETT, 360 U.S. 471.  SEE ALSO UNITED STATES V. LIVINGSTON, 179 F.
SUPP. 9, 12-13 (D.C.E.D.S.C.), AFF'D, LIVINGSTON V. UNITED STATES, 364
U.S. 281:  "THOUGH NEVER INTERPRETED BY A STATE COURT, IF A STATE
STATUTE IS NOT FAIRLY SUBJECT TO AN INTERPRETATION WHICH WILL AVOID OR
MODIFY THE FEDERAL CONSTITUTIONAL QUESTION, IT IS THE DUTY OF A FEDERAL
COURT TO DECIDE THE FEDERAL QUESTION WHEN PRESENTED TO IT."  SHELTON V.
MCKINLEY, 174 F. SUPP. 351 (D.C.E.D. ARK.) (ABSTENTION INAPPROPRIATE
WHERE THERE ARE NO SUBSTANTIAL PROBLEMS OF STATUTORY CONSTRUCTION AND
DELAY WOULD PREJUDICE CONSTITUTIONAL RIGHTS); ALL AMERICAN AIRWAYS V.
VILLAGE OF CEDARHURST, 201 F.2D 273 (C.A.2D CIR.); STERLING DRUG V.
ANDERSON, 127 F. SUPP. 511, 513 (D.C.E.D. TENN.). 

FN12  SEE, E.G., RAILROAD COMM'N OF TEXAS V. PULLMAN CO., 312 U.S.
496; CHICAGO V. FIELDCREST DAIRIES, INC., 316 U.S. 168; SPECTOR MOTOR
SERVICE, INC., V. MCLAUGHLIN, 323 U.S. 101; ALABAMA STATE FEDERATION OF
LABOR V. MCADORY, 325 U.S. 450; AMERICAN FEDERATION OF LABOR V. WATSON,
327 U.S. 582; STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368; SHIPMAN V.
DUPRE, 339 U.S. 321; ALBERTSON V. MILLARD, 345 U.S. 242; LEITER
MINERALS, INC., V. UNITED STATES, 352 U.S. 220; GOVERNMENT & CIVIC
EMPLOYEES ORGANIZING COMMITTEE, C.I.O., V. WINDSOR, 353 U.S. 364; CITY
OF MERIDIAN V. SOUTHERN BELL TEL. & TEL. CO., 358 U.S. 639. 

FN13  IN MUSSER V. UTAH, 333 U.S. 95, THE APPELLANTS WERE CONVICTED
OF COMMITTING "ACTS INJURIOUS TO PUBLIC MORALS."  THE VAGUENESS
CHALLENGE TO THE STATUTE, EITHER AS APPLIED OR ON ITS FACE, WAS RAISED
FOR THE FIRST TIME IN ORAL ARGUMENT BEFORE THIS COURT, AND THE COURT
VACATED THE CONVICTION AND REMANDED FOR A DETERMINATION OF WHETHER THE
CONVICTION FOR URGING PERSONS TO COMMIT POLYGAMY RESTED SOLELY ON THIS
BROAD-CHALLENGED PROVISION.  IN ALBERTSON V. MILLARD, 345 U.S. 242, THE
COMMUNIST PARTY OF THE STATE OF MICHIGAN AND ITS SECRETARY SOUGHT TO
ENJOIN ON SEVERAL CONSTITUTIONAL GROUNDS THE APPLICATION TO THEM OF A
STATE STATUTE, FIVE DAYS AFTER ITS PASSAGE, REQUIRING REGISTRATION,
UNDER PAIN OF CRIMINAL PENALTIES, OF "ANY ORGANIZATION WHICH IS
SUBSTANTIALLY DIRECTED, DOMINATED OR CONTROLLED BY THE UNION OF SOVIET
SOCIALIST REPUBLICS OR ITS SATELLITES, OR WHICH  ...  ACTS TO FURTHER,
THE WORLD COMMUNIST MOVEMENT" AND OF MEMBERS OF SUCH AN ORGANIZATION. 
THEY ARGUED THAT THE DEFINITIONS WERE VAGUE AND FAILED TO INFORM THEM
IF A LOCAL COMMUNIST ORGANIZATION AND ITS MEMBERS WERE REQUIRED TO
REGISTER.  THE LOWER COURT TOOK JUDICIAL NOTICE OF THE FACT THAT THE
COMMUNIST PARTY OF THE UNITED STATES, WITH WHOM THE LOCAL PARTY WAS
ASSOCIATED, WAS A PART OF THE WORLD COMMUNIST MOVEMENT DOMINATED BY THE
SOVIET UNION, AND HELD THE STATUTE CONSTITUTIONAL IN ALL OTHER
RESPECTS.  THIS COURT VACATED THE JUDGMENT AND DECLINED TO PASS ON THE
APPELLANTS' CONSTITUTIONAL CLAIMS UNTIL THE MICHIGAN COURTS, IN A SUIT
ALREADY PENDING, CONSTRUED THE STATUTORY TERMS AND DETERMINED IF THEY
REQUIRED THE LOCAL PARTY AND ITS SECRETARY, WITHOUT MORE, TO REGISTER. 
THE APPROACH WAS THAT THE CONSTITUTIONAL CLAIMS, INCLUDING THE ONE
FOUNDED ON VAGUENESS, WOULD BE WHOLLY ELIMINATED IF THE STATUTE, AS
CONSTRUED BY THE STATE COURT, DID NOT REQUIRE ALL LOCAL COMMUNIST
ORGANIZATIONS WITHOUT SUBSTANTIAL TIES TO A FOREIGN COUNTRY AND THEIR
MEMBERS TO REGISTER.  STATED DIFFERENTLY, THE QUESTION WAS WHETHER THIS
STATUTE APPLIED TO THESE PLAINTIFFS, A QUESTION TO BE AUTHORITATIVELY
ANSWERED IN THE STATE COURTS. 

IN HARRISON V. NAACP, 360 U.S. 167, THE NAACP AND THE NAACP LEGAL
DEFENSE AND EDUCATION FUND SOUGHT A DECLARATORY JUDGMENT AND INJUNCTION
ON SEVERAL CONSTITUTIONAL GROUNDS IN RESPECT TO NUMEROUS RECENTLY
ENACTED STATE STATUTES.  THE LOWER COURT ENJOINED THE IMPLEMENTATION OF
THREE STATUTES, INCLUDING ONE PROVISION ON VAGUENESS GROUNDS, AND
ORDERED ABSTENTION AS TO TWO OTHERS, FINDING THEM AMBIGUOUS.  THIS
COURT ORDERED ABSTENTION AS TO ALL THE STATUTES, FINDING THAT THEY WERE
ALL SUSCEPTIBLE OF CONSTRUCTIONS THAT WOULD LIMIT OR ELIMINATE THEIR
EFFECT ON THE LITIGATIVE AND LEGAL ACTIVITIES OF THE NAACP AND
CONSTRUCTION MIGHT THEREBY ELIMINATE THE NECESSITY FOR PASSING ON THE
MANY CONSTITUTIONAL QUESTIONS RAISED.  THE VAGUENESS ISSUE, FOR
EXAMPLE, WOULD NOT REQUIRE ADJUDICATION IF THE STATE COURTS FOUND THAT
THE CHALLENGED PROVISIONS DID NOT RESTRICT THE ACTIVITIES OF THE NAACP
OR REQUIRE THE NAACP TO REGISTER.  UNLIKE THE INSTANT CASE, THE
NECESSITY FOR DECIDING THE FEDERAL CONSTITUTIONAL ISSUES IN THE ABOVE
AND OTHER ABSTENTION CASES TURNED ON WHETHER THE RESTRICTIONS OR
REQUIREMENTS OF AN UNCERTAIN OR UNCLEAR STATE STATUTE WERE IMPOSED ON
THE PERSONS BRINGING THE ACTION OR ON THEIR ACTIVITIES AS DEFINED IN
THE COMPLAINT. 

FN14  SEE CLARK, FEDERAL PROCEDURAL REFORM AND STATES' RIGHTS, 40
TEX. L. REV. 211 (1961); NOTE, 73 HARV. L. REV. 1358, 1363 (1960). 

FN15  "WHERE THE DISPOSITION OF A DOUBTFUL QUESTION OF LOCAL LAW
MIGHT TERMINATE THE ENTIRE CONTROVERSY AND THUS MAKE IT UNNECESSARY TO
DECIDE A SUBSTANTIAL CONSTITUTIONAL QUESTION, CONSIDERATIONS OF EQUITY
JUSTIFY A RULE OF ABSTENTION.  BUT WHERE, AS HERE, NO STATE COURT
RULING ON LOCAL LAW COULD SETTLE THE FEDERAL QUESTIONS THAT NECESSARILY
REMAIN, AND WHERE, AS HERE, THE LITIGATION HAS ALREADY BEEN IN THE
FEDERAL COURTS AN INORDINATELY LONG TIME, CONSIDERATIONS OF EQUITY
REQUIRE THAT THE LITIGATION BE BROUGHT TO AN END AS QUICKLY AS
POSSIBLE."  317 U.S. 456, AT 463. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE COURT STRIKES DOWN, AS UNCONSTITUTIONALLY VAGUE, TWO ACTS OF THE
STATE OF WASHINGTON.  THE FIRST, THE ACT OF 1955, REQUIRES EVERY STATE
EMPLOYEE TO SWEAR OR AFFIRM THAT HE IS NOT A "SUBVERSIVE PERSON" AS
THEREIN DEFINED.  THE SECOND, THE ACT OF 1931, WHICH REQUIRES THAT
ANOTHER OATH BE TAKEN BY TEACHERS, IS DECLARED VOID WITHOUT THE BENEFIT
OF AN OPINION OF EITHER A STATE OR FEDERAL COURT.  I DISSENT AS TO
BOTH, THE FIRST ON THE MERITS, AND THE LATTER, BECAUSE THE COURT
REFUSES TO AFFORD THE STATE AN OPPORTUNITY TO INTERPRET ITS OWN LAW. 

       I. 

THE COURT SAYS THAT THE ACT OF 1955 IS VOID ON ITS FACE BECAUSE IT IS
"UNDULY VAGUE, UNCERTAIN AND BROAD."  THE COURT POINTS OUT THAT THE
OATH REQUIRES A TEACHER TO "SWEAR THAT HE IS NOT A SUBVERSIVE PERSON:
THAT HE IS NOT ONE WHO COMMITS AN ACT OR WHO ADVISES, TEACHES, ABETS OR
ADVOCATES BY ANY MEANS ANOTHER PERSON TO COMMIT OR AID IN THE
COMMISSION OF ANY ACT INTENDED TO OVERTHROW OR ALTER, OR TO ASSIST THE
OVERTHROW OR ALTERATION, OF THE CONSTITUTIONAL FORM OF GOVERNMENT BY
REVOLUTION, FORCE OR VIOLENCE."  THE COURT FURTHER FINDS THAT THE ACT
DECLARES THE COMMUNIST PARTY TO BE A SUBVERSIVE ORGANIZATION.  FROM
THESE PREMISES, THE COURT THEN REASONS THAT UNDER THE 1955 ACT "ANY
PERSON WHO AIDS THE COMMUNIST PARTY OR TEACHES OR ADVISES KNOWN MEMBERS
OF THE PARTY IS A SUBVERSIVE PERSON" BECAUSE "AT SOME FUTURE DATE" SUCH
TEACHING MAY AID THE ACTIVITIES OF THE PARTY.  THIS REASONING CONTINUES
WITH THE ASSERTION THAT "ONE CANNOT CONFIDENTLY ASSERT THAT HIS
COUNSEL, AID, INFLUENCE OR SUPPORT WHICH ADDS TO THE RESOURCES, RIGHTS
AND KNOWLEDGE OF THE COMMUNIST PARTY OR ITS MEMBERS DOES NOT AID THE
PARTY  ...  IN FURTHERANCE OF THE STATED PURPOSE OF OVERTHROWING THE
GOVERNMENT BY REVOLUTION, FORCE, OR VIOLENCE."  THE COURT THEN
INTERROGATES ITSELF:  DOES THE STATUTE REACH "ENDORSEMENT OR SUPPORT
FOR COMMUNIST CANDIDATES FOR OFFICE?  ...  A LAWYER WHO REPRESENTS THE
COMMUNIST PARTY OR ITS MEMBERS?  ...  DEFENSE OF THE CONSTITUTIONAL
RIGHTS OF THE COMMUNIST PARTY OR ITS MEMBERS  ...  OR SUPPORT OF ANY
CAUSE WHICH IS LIKEWISE SUPPORTED BY COMMUNISTS OR THE COMMUNIST
PARTY?"  APPARENTLY CONCLUDING THAT THE ANSWERS TO THESE QUESTIONS ARE
UNCLEAR, THE COURT THEN DECLARES THE ACT VOID, CITING CRAMP V. BOARD OF
PUBLIC INSTRUCTION, 368 U.S. 278 (1961).  LET US TAKE UP THIS REASONING
IN REVERSE ORDER. 

FIRST, CRAMP IS NOT APPOSITE.  THE MAJORITY HAS FAILED TO RECOGNIZE
THAT THE STATUTE IN CRAMP REQUIRED AN OATH OF MUCH BROADER SCOPE THAN
THE ONE IN THE INSTANT CASE:  CRAMP INVOLVED AN OATH "THAT I HAVE NOT
AND WILL NOT LEND MY AID, SUPPORT, ADVICE, COUNSEL OR INFLUENCE TO THE
COMMUNIST PARTY  ...  ."  THAT OATH WAS REPLETE WITH DEFECTS NOT
PRESENT IN THE WASHINGTON OATH.  AS MR. JUSTICE STEWART POINTED OUT IN
CRAMP: 

"THE PROVISION OF THE OATH HERE IN QUESTION, IT IS TO BE NOTED, SAYS
NOTHING OF ADVOCACY OF VIOLENT OVERTHROW OF STATE OR FEDERAL
GOVERNMENT.  IT SAYS NOTHING OF MEMBERSHIP OR AFFILIATION WITH THE
COMMUNIST PARTY, PAST OR PRESENT.  THE PROVISION IS COMPLETELY LACKING
IN THESE OR ANY OTHER TERMS SUSCEPTIBLE OF OBJECTIVE MEASUREMENT."  AT
286. 

THESE FACTORS WHICH CAUSED THE COURT TO FIND THE CRAMP OATH
UNCONSTITUTIONALLY VAGUE ARE CLEARLY NOT PRESENT IN THE WASHINGTON
OATH.  WASHINGTON'S OATH PROSCRIBES ONLY THE COMMISSION OF AN ACT OF
OVERTHROW OR ALTERATION OF THE CONSTITUTIONAL FORM OF GOVERNMENT BY
REVOLUTION, FORCE OR VIOLENCE; OR ADVISING, TEACHING, ABETTING OR
ADVOCATING BY ANY MEANS ANOTHER PERSON TO COMMIT OR AID IN THE
COMMISSION OF ANY ACT INTENDED TO OVERTHROW OR ALTER OR TO ASSIST THE
OVERTHROW OR ALTERATION OF THE CONSTITUTIONAL FORM OF GOVERNMENT BY
REVOLUTION, FORCE OR VIOLENCE.  THE DEFECTS NOTED BY THE COURT WHEN IT
PASSED ON THE CRAMP OATH HAVE BEEN CURED IN THE WASHINGTON STATUTE. 

IT IS STRANGE THAT THE COURT SHOULD FIND THE LANGUAGE OF THIS STATUTE
SO PROFOUNDLY VAGUE WHEN IN 1951 IT HAD NO SUCH TROUBLE WITH THE
IDENTICAL LANGUAGE PRESENTED BY ANOTHER OATH IN GERENDE V. BOARD OF
SUPERVISORS OF ELECTIONS, 341 U.S. 56.  THERE, THE CONSTITUTIONALITY OF
MARYLAND'S OBER LAW, WRITTEN IN LANGUAGE IDENTICAL TO WASHINGTON'S 1955
ACT, WAS AFFIRMED BY A UNANIMOUS COURT AGAINST THE SAME ATTACK OF
VAGUENESS.  IT IS UNFORTUNATE THAT GERENDE IS OVERRULED SO QUICKLY.*
OTHER STATE LAWS HAVE BEEN COPIED FROM THE MARYLAND ACT - JUST AS
WASHINGTON'S 1955 ACT WAS - PRIMARILY BECAUSE OF OUR APPROVAL OF IT,
AND NOW THIS COURT WOULD DECLARE THEM VOID.  SUCH ACTION CANNOT COMMAND
THE DIGNITY AND RESPECT DUE TO THE JUDICIAL PROCESS.  IT IS, OF COURSE,
ABSURD TO SAY THAT, UNDER THE WORDS OF THE WASHINGTON ACT, A PROFESSOR
RISKS VIOLATION WHEN HE TEACHES GERMAN, ENGLISH, HISTORY OR ANY OTHER
SUBJECT INCLUDED IN THE CURRICULUM FOR A COLLEGE DEGREE, TO A CLASS IN
WHICH A COMMUNIST PARTY MEMBER MIGHT SIT.  TO SO INTERPRET THE LANGUAGE
OF THE ACT IS TO EXTRACT MORE SUNBEAMS FROM CUCUMBERS THAN DID
GULLIVER'S MAD SCIENTIST.  AND TO CONJURE UP SUCH RIDICULOUS QUESTIONS,
THE ANSWERS TO WHICH WE ALL KNOW OR SHOULD KNOW ARE IN THE NEGATIVE, IS
TO BUILD UP A WHIMSICAL AND FARCICAL STRAW MAN WHICH IS NOT ONLY GRIM
BUT GRIMM. 

* IT HAS BEEN CONTENDED THAT THE CRUCIAL SECTION OF MARYLAND'S OBER
ACT, THAT WHICH IS IDENTICAL TO THE WASHINGTON ACT, WAS NOT BEFORE THE
COURT IN GERENDE, BUT A REVIEW OF THE RECORD IN THAT CASE CONCLUSIVELY
DEMONSTRATES TO THE CONTRARY.  FURTHER, WHILE THE GERENDE OPINION WAS
STATED WITH A QUALIFICATION, THE FACT REMAINS THAT THE COURT APPROVED
THE JUDGMENT OF THE MARYLAND COURT AND REJECTED THE ARGUMENT THAT THE
ACT WAS UNCONSTITUTIONALLY VAGUE. 

IN ADDITION TO THE OBER LAW THE COURT HAS ALSO FOUND THAT OTHER
STATUTES USING SIMILAR LANGUAGE WERE NOT VAGUE.  AN UNAVOIDABLE EXAMPLE
IS THE SMITH ACT WHICH WE UPHELD AGAINST AN ATTACK BASED ON VAGUENESS
IN THE LANDMARK CASE OF DENNIS V. UNITED STATES, 341 U.S. 494 (1951). 
THE CRITICAL LANGUAGE OF THE SMITH ACT IS AGAIN IN THE SAME WORDS AS
THE 1955 WASHINGTON ACT. 

"WHOEVER KNOWINGLY OR WILLFULLY ADVOCATES, ABETS, ADVISES, OR TEACHES
THE DUTY, NECESSITY, DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR
DESTROYING THE GOVERNMENT OF THE UNITED STATES  ... ."  18 U.S.C. SEC
2385. 

THE OPINION OF THE COURT IN DENNIS USES THIS LANGUAGE IN DISCUSSING
THE VAGUENESS CLAIM: 

"WE AGREE THAT THE STANDARD AS DEFINED IS NOT A NEAT, MATHEMATICAL
FORMULARY.  LIKE ALL VERBALIZATIONS IT IS SUBJECT TO CRITICISM ON THE
SCORE OF INDEFINITENESS  ...  .  WE THINK THE STATUTE WELL SERVES TO
INDICATE TO THOSE WHO WOULD ADVOCATE CONSTITUTIONALLY PROHIBITED
CONDUCT THAT THERE IS A LINE BEYOND WHICH THEY MAY NOT GO - A LINE
WHICH THEY, IN FULL KNOWLEDGE OF WHAT THEY INTEND AND THE CIRCUMSTANCES
IN WHICH THEIR ACTIVITY TAKES PLACE, WILL WELL APPRECIATE AND
UNDERSTAND."  AT 515-516. 

IT APPEARS TO ME FROM THE STATUTORY LANGUAGE THAT WASHINGTON'S 1955
ACT IS MUCH MORE CLEAR THAN THE SMITH ACT.  STILL THE COURT STRIKES IT
DOWN.  WHERE DOES THIS LEAVE THE CONSTITUTIONALITY OF THE SMITH ACT? 

                   II. 

APPELLANTS MAKE OTHER CLAIMS.  THEY SAY THAT THE 1955 ACT VIOLATES
THEIR RIGHTS OF ASSOCIATION AND FREE SPEECH AS GUARANTEED BY THE FIRST
AND FOURTEENTH AMENDMENTS.  BUT IN LIGHT OF KONIGSBERG V. STATE BAR OF
CALIFORNIA, 366 U.S. 36 (1961); IN RE ANASTAPLO, 366 U.S. 82 (1961);
ADLER V. BOARD OF EDUCATION, 342 U.S. 485 (1952); GARNER V. BOARD OF
PUBLIC WORKS, 341 U.S. 716 (1951); AND AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382 (1950), THIS CLAIM IS FRIVOLOUS.  LIKEWISE IN VIEW
OF THE DECISION OF WASHINGTON'S HIGHEST COURT THAT TENURED EMPLOYEES
WOULD BE ENTITLED TO A HEARING, NOSTRAND V. LITTLE, 58 WASH. 2D 111,
131, 361 P.2D 551, 563, THE DUE PROCESS CLAIM IS WITHOUT FOUNDATION. 
THIS CONCLUSION WOULD ALSO APPLY TO THOSE EMPLOYEES WITHOUT TENURE,
SINCE THEY WOULD BE ENTITLED TO A HEARING UNDER WASHINGTON'S CIVIL
SERVICE ACT, REV. CODE WASH. SEC. 41.04 ET SEQ. AND ITS ADMINISTRATIVE
PROCEDURE ACT, REV. CODE WASH. SEC 34.04.010 ET SEQ.

                         III. 

THE SUPREME COURT OF WASHINGTON HAS NEVER CONSTRUED THE OATH OF
ALLEGIANCE REQUIRED BY THE 1931 ACT.  I AGREE WITH THE DISTRICT COURT
THAT WASHINGTON'S HIGHEST COURT SHOULD BE AFFORDED AN OPPORTUNITY TO DO
SO.  AS THE DISTRICT COURT SAID: 

"THE GRANTING OR WITHHOLDING OF EQUITABLE OR DECLARATORY RELIEF IN
FEDERAL COURT SUITS WHICH SEEK TO LIMIT OR CONTROL STATE ACTION IS
COMMITTED TO THE SOUND DISCRETION OF THE COURT.  ACCORDINGLY, IN THE
ABSENCE OF A CONCRETE FACTUAL SHOWING THAT ANY PLAINTIFF OR ANY MEMBER
OF THE CLASSES OF STATE EMPLOYEES HERE REPRESENTED HAS SUFFERED ACTUAL
INJURY BY REASON OF THE APPLICATION OF THE OATH OF ALLEGIANCE STATUTE
(CHAPTER 103, LAWS OF 1931) THIS COURT WILL DECLINE TO RENDER A
DECLARATORY JUDGMENT AS TO THE CONSTITUTIONALITY OF THAT STATUTE IN
ADVANCE OF AN AUTHORITATIVE CONSTRUCTION BY THE WASHINGTON SUPREME
COURT."  215 F. SUPP. 439, 455. 

FOR THESE REASONS, I DISSENT. 
..END :











HUDSON DISTRIBUTORS V. ELI LILLY 377 U.S. 386 


NO. 490.  ARGUED APRIL 30, 1964.  - DECIDED JUNE 1, 1964.* - 174 OHIO
ST. 487, 190 N.E.2D 460, AFFIRMED. 

*TOGETHER WITH NO. 489, HUDSON DISTRIBUTORS, INC., V. UPJOHN COMPANY,
ALSO ON APPEAL FROM THE SAME COURT, ARGUED APRIL 29, 1964. 


UNDER THE MCGUIRE ACT A TRADEMARK OWNER MAY, WHERE SANCTIONED BY A
STATE FAIR-TRADE ACT, ENFORCE A MINIMUM RETAIL PRICE ESTABLISHED BY
WRITTEN AGREEMENTS WITH SOME RETAILERS IN THE STATE AGAINST A NOTIFIED
RETAILER WHO HAS NOT SIGNED SUCH AN AGREEMENT.  PP. 386-395. 

HUDSON DISTRIBUTORS, INC., V. ELI LILLY & CO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS RAISE THE QUESTION OF WHETHER THE MCGUIRE ACT, 66 STAT.
631, 15 U.S.C.  SECS 45(A)(1)-(5), PERMITS THE APPLICATION AND
ENFORCEMENT OF THE OHIO FAIR TRADE ACT AGAINST APPELLANT IN SUPPORT OF
APPELLEES' SYSTEMS OF RETAIL PRICE MAINTENANCE.  FOR THE REASONS STATED
BELOW, WE HOLD THAT THE OHIO ACT, AS APPLIED TO THE FACTS OF THESE
CASES, COMES WITHIN THE PROVISIONS OF THE MCGUIRE ACT EXEMPTING CERTAIN
RESALE PRICE SYSTEMS FROM THE PROHIBITIONS OF THE SHERMAN ACT, 26 STAT.
209, 15 U.S.C. SEC 1 ET SEQ. 

THE TWO APPEALS, ONE INVOLVING THE UPJOHN CO. AND ONE INVOLVING ELI
LILLY & CO., WERE CONSIDERED TOGETHER IN THE OHIO COURTS.  (FN1)  FOR
SIMPLICITY WE STATE ONLY THE FACTS OF THE LILLY CASE.  APPELLANT,
HUDSON DISTRIBUTORS, INC., OWNS AND OPERATES A RETAIL DRUG CHAIN IN
CLEVELAND, OHIO.  APPELLEE, ELI LILLY & CO., MANUFACTURES
PHARMACEUTICAL PRODUCTS BEARING ITS TRADEMARKS AND TRADE NAMES.  LILLY
SELLS ITS PRODUCTS DIRECTLY TO WHOLESALERS AND MAKES NO SALES TO
RETAILERS.  HUDSON PURCHASES LILLY BRAND PRODUCTS FROM REGAL D.S.,
INC., A MICHIGAN WHOLESALER. 

IN JUNE 1959, THE OHIO LEGISLATURE ENACTED A NEW FAIR TRADE ACT, OHIO
REVISED CODE SECS 1333.27-1333.34.  SUBSEQUENTLY LILLY SENT LETTERS TO
ALL OHIO RETAILERS OF LILLY PRODUCTS, INCLUDING HUDSON, TO NOTIFY THEM
OF LILLY'S INTENTION TO ESTABLISH MINIMUM RETAIL RESALE PRICES FOR ITS
TRADEMARKED PRODUCTS PURSUANT TO THE NEW OHIO ACT AND TO INVITE THE
RETAILERS TO ENTER INTO WRITTEN FAIR-TRADE CONTRACTS.  MORE THAN 1,400
OHIO RETAILERS OF LILLY PRODUCTS (ABOUT 65% OF ALL THE RETAIL
PHARMACISTS IN OHIO) SIGNED FAIR-TRADE CONTRACTS WITH LILLY.  HUDSON,
HOWEVER, REFUSED TO ENTER INTO A WRITTEN CONTRACT WITH LILLY AND
IGNORED THE SPECIFIED MINIMUM RESALE PRICES.  LILLY FORMALLY NOTIFIED
HUDSON THAT THE OHIO ACT REQUIRED HUDSON TO OBSERVE THE MINIMUM RETAIL
RESALE PRICES FOR LILLY COMMODITIES.  HUDSON, NEVERTHELESS, CONTINUED
TO PURCHASE AND THEN TO RESELL LILLY PRODUCTS AT LESS THAN THE
STIPULATED MINIMUM RETAIL RESALE PRICES. 

HUDSON THEREUPON FILED A PETITION IN THE COURT OF COMMON PLEAS FOR
CUYAHOGA COUNTY, OHIO, FOR A JUDGMENT DECLARING THE OHIO ACT INVALID
UNDER THE STATE CONSTITUTION AND FEDERAL LAW.  LILLY ANSWERED AND CROSS
PETITIONED FOR ENFORCEMENT OF THE OHIO ACT AGAINST HUDSON.  THE COURT
OF COMMON PLEAS HELD THE OHIO ACT UNCONSTITUTIONAL UNDER THE STATE
CONSTITUTION.  ON APPEAL, THE COURT OF APPEALS FOR CUYAHOGA COUNTY,
AFTER DISCUSSING THE FEDERAL AND STATE LEGISLATION, 117 OHIO APP. 207,
176 N.E.2D 236, REVERSED THE TRIAL COURT AND ENTERED A JUDGMENT
DECLARING THAT THE OHIO ACT WAS NOT "IN VIOLATION OF THE CONSTITUTION
OF THE STATE OF OHIO NOR OF THE CONSTITUTION OF THE UNITED STATES ...
."  THE COURT REMANDED THE CASE "FOR FURTHER PROCEEDINGS ACCORDING TO
LAW WITH RESPECT TO THE CROSS-PETITION  ...  ."  (FN2)  ON FURTHER
APPEAL, THE SUPREME COURT OF OHIO AFFIRMED  (FN3) THE JUDGMENT OF THE
COURT OF APPEALS.  (FN4)  174 OHIO ST. 487, 190 N.E.2D 460.  THIS COURT
NOTED PROBABLE JURISDICTION.  375 U.S. 938, 939. 

HUDSON CONTENDS THAT THE PROVISIONS OF THE OHIO ACT UNDER WHICH LILLY
ESTABLISHED MINIMUM RESALE PRICES ARE NOT AUTHORIZED BY THE MCGUIRE
ACT, 66 STAT. 631, 15 U.S.C. SECS 45(A)(1)-(5).  (FN5) SECTION 2 OF THE
MCGUIRE ACT PROVIDES IN PERTINENT PART AS FOLLOWS: 

"NOTHING CONTAINED IN THIS SECTION OR IN ANY OF THE ANTITRUST ACTS
SHALL RENDER UNLAWFUL ANY CONTRACTS OR AGREEMENTS PRESCRIBING MINIMUM
OR STIPULATED PRICES,  ...  WHEN CONTRACTS OR AGREEMENTS OF THAT
DESCRIPTION ARE LAWFUL AS APPLIED TO INTRASTATE TRANSACTIONS UNDER ANY
STATUTE, LAW, OR PUBLIC POLICY NOW OR HEREAFTER IN EFFECT IN ANY STATE
...  ." 


"NOTHING CONTAINED IN THIS SECTION OR IN ANY OF THE ANTITRUST ACTS
SHALL RENDER UNLAWFUL THE EXERCISE OR THE ENFORCEMENT OF ANY RIGHT OR
RIGHT OF ACTION CREATED BY ANY STATUTE, LAW, OR PUBLIC POLICY NOW OR
HEREAFTER IN EFFECT IN ANY STATE, TERRITORY, OR THE DISTRICT OF
COLUMBIA, WHICH IN SUBSTANCE PROVIDES THAT WILFULLY AND KNOWINGLY
ADVERTISING, OFFERING FOR SALE, OR SELLING ANY COMMODITY AT LESS THAN
THE PRICE OR PRICES PRESCRIBED IN SUCH CONTRACTS OR AGREEMENTS WHETHER
THE PERSON SO ADVERTISING, OFFERING FOR SALE, OR SELLING IS OR IS NOT A
PARTY TO SUCH A CONTRACT OR AGREEMENT, IS UNFAIR COMPETITION AND IS
ACTIONABLE AT THE SUIT OF ANY PERSON DAMAGED THEREBY." 

BEFORE THE ENACTMENT OF THE MCGUIRE ACT, THIS COURT IN 1951 IN
SCHWEGMANN BROS. V. CALVERT DISTILLERS CORP., 341 U.S. 384, CONSIDERED
WHETHER THE MILLER-TYDINGS ACT, 50 STAT. 693, 15 U.S.C. SEC 1, REMOVED
FROM THE PROHIBITION OF THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C. SEC 1
ET SEQ., A STATE STATUTE WHICH AUTHORIZED A TRADEMARK OWNER, BY NOTICE,
TO REQUIRE A RETAILER WHO HAD NOT EXECUTED A WRITTEN CONTRACT TO
OBSERVE RESALE PRICE MAINTENANCE.  RESPONDENTS IN THAT CASE ARGUED THAT
SINCE THE SHERMAN ACT OUTLAWED "CONTRACTS" IN RESTRAINT OF TRADE AND
SINCE THE MILLER-TYDINGS AMENDMENT TO THE SHERMAN ACT EXCEPTED
"CONTRACTS OR AGREEMENTS PRESCRIBING MINIMUM PRICES FOR THE RESALE" OF
A COMMODITY WHERE SUCH CONTRACTS OR AGREEMENTS WERE LAWFUL UNDER STATE
LAW, THE MILLER-TYDINGS ACT THEREFORE IMMUNIZED ALL ARRANGEMENTS
INVOLVING RESALE PRICE MAINTENANCE AUTHORIZED BY STATE LAW.  341 U.S.,
AT 387.  AFTER EXAMINING THE HISTORY OF THE MILLER-TYDINGS ACT, THE
COURT CONCLUDED THAT CONGRESS HAD INTENDED THE WORDS "CONTRACTS OR
AGREEMENTS" AS CONTAINED IN THAT ACT TO BE USED "IN THEIR NORMAL AND
CUSTOMARY MEANING," ID., AT 388, AND TO COVER ONLY ARRANGEMENTS WHEREBY
THE RETAILER VOLUNTARILY AGREED TO BE BOUND BY THE RESALE PRICE
RESTRICTIONS.  THE COURT HELD THEREFORE THAT THE STATE RESALE PRICE
MAINTENANCE LAW COULD NOT BE APPLIED TO NONSIGNERS - "RECALCITRANTS
...  DRAGGED IN BY THE HEELS AND COMPELLED TO SUBMIT TO PRICE FIXING." 
ID., AT 390.  THE COURT STATED THAT: 

"IT SHOULD BE REMEMBERED THAT IT WAS THE STATE LAWS THAT THE FEDERAL
LAW WAS DESIGNED TO ACCOMMODATE.  FEDERAL REGULATION WAS TO GIVE WAY TO
STATE REGULATION.  WHEN STATE REGULATION PROVIDED FOR RESALE PRICE
MAINTENANCE BY BOTH THOSE WHO CONTRACTED AND THOSE WHO DID NOT, AND THE
FEDERAL REGULATION WAS RELAXED ONLY AS RESPECTS 'CONTRACTS OR
AGREEMENTS,' THE INFERENCE IS STRONG THAT CONGRESS LEFT THE
NONCONTRACTING GROUP TO BE GOVERNED BY PREEXISTING LAW."  ID., AT 395. 

SHORTLY AFTER THE SCHWEGMANN DECISION, CONGRESS PASSED THE MCGUIRE
ACT,  (FN6) 66 STAT.  631, 15 U.S.C. SECS 45(A)(1)-(5).  THE REPORT OF
THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, WHICH
ACCOMPANIED THE MCGUIRE ACT, DECLARED THAT: 

"THE PRIMARY PURPOSE OF THE MCGUIRE BILL IS TO REAFFIRM THE VERY SAME
PROPOSITION WHICH, IN THE COMMITTEE'S OPINION, THE CONGRESS INTENDED TO
ENACT INTO LAW WHEN IT PASSED THE MILLER-TYDINGS ACT ...  , TO THE
EFFECT THAT THE APPLICATION AND ENFORCEMENT OF STATE FAIR-TRADE LAWS -
INCLUDING THE NONSIGNER PROVISIONS OF SUCH LAWS - WITH REGARD TO
INTERSTATE TRANSACTIONS SHALL NOT CONSTITUTE A VIOLATION OF THE FEDERAL
TRADE COMMISSION ACT OR THE SHERMAN ANTITRUST ACT.  THIS REAFFIRMATION
IS MADE NECESSARY BECAUSE OF THE DECISION OF A DIVIDED SUPREME COURT IN
SCHWEGMANN V. CALVERT DISTILLERS CORPORATION (341 U.S. 384, MAY 21,
1951).  IN THAT CASE, SIX MEMBERS OF THE COURT HELD THAT THE MILLER
TYDINGS ACT DID NOT EXEMPT FROM THESE FEDERAL LAWS ENFORCEMENT OF STATE
FAIR TRADE LAWS WITH RESPECT TO NONSIGNERS.  THREE MEMBERS OF THE COURT
HELD THAT THE MILLER-TYDINGS ACT DID SO APPLY. 

"THE END RESULT OF THE SUPREME COURT DECISION HAS BEEN SERIOUSLY TO
UNDERMINE THE EFFECTIVENESS OF THE MILLER-TYDINGS ACT AND, IN TURN, OF
THE FAIR-TRADE LAWS ENACTED BY 45 STATES.  H.R. 5767, AS AMENDED, IS
DESIGNED TO RESTORE THE EFFECTIVENESS OF THESE ACTS BY MAKING IT
ABUNDANTLY CLEAR THAT CONGRESS MEANS TO LET STATE FAIR-TRADE LAWS APPLY
IN THEIR TOTALITY; THAT IS, WITH RESPECT TO NONSIGNERS AS WELL AS
SIGNERS."  H.R. REP. NO. 1437, 82D CONG., 2D SESS., AT 1-2. 

THIS AUTHORITATIVE REPORT EVINCES THE CLEAR INTENTION OF CONGRESS
THAT, WHERE SANCTIONED BY A STATE FAIR-TRADE ACT, A TRADEMARK OWNER
SUCH AS LILLY COULD BE PERMITTED TO ENFORCE, EVEN AGAINST A NONSIGNING
RETAILER SUCH AS HUDSON, THE STIPULATED MINIMUM PRICES ESTABLISHED BY
WRITTEN CONTRACTS WITH OTHER RETAILERS.  (FN7) 

WITHOUT DISPUTING THIS INTERPRETATION OF THE MCGUIRE ACT, HUDSON
ARGUES THAT THE OHIO ACT AS INTERPRETED BY THE OHIO COURTS REACHES
BEYOND THE EXEMPTIVE TERMS OF THE FEDERAL ACT BY PERMITTING THE
MAINTENANCE OF RESALE PRICES "BY NOTICE ALONE" WHERE NO CONTRACT HAS
BEEN ENTERED INTO BETWEEN THE OWNER OF THE TRADEMARK AND ANY RETAILER. 
HUDSON EMPHASIZES THAT THE OHIO COURTS SUSTAINED THE OHIO ACT UNDER THE
STATE CONSTITUTION ON THE THEORY THAT HUDSON, SIMPLY BY ACQUIRING
LILLY'S PRODUCTS WITH NOTICE OF THE STIPULATED PRICES, IMPLIEDLY
CONTRACTED TO OBSERVE THE MINIMUM PRICES.  THIS IMPLIED CONTRACT THEORY
WAS DEEMED NECESSARY BY THE OHIO LEGISLATURE AND BY THE OHIO COURTS TO
SATISFY THE STATE CONSTITUTION WHICH HAD RECENTLY BEEN HELD TO
INVALIDATE THE ENFORCEMENT OF RESALE PRICES AGAINST NONSIGNERS.  UNION
CARBIDE & CARBON CORP. V. BARGAIN FAIR, INC., 167 OHIO ST. 182, 147
N.E.2D 481 (1958).  WHATEVER MERIT THERE MAY BE IN THE ARGUMENT THAT
THE LOGIC OF THE OHIO IMPLIED CONTRACT THEORY WOULD APPLY TO PRICES SET
BY NOTICE ALONE AND WITHOUT ANY CONVENTIONAL OR EXPRESS CONTRACTS, ON
THE FACTS OF THE PRESENT CASE WE NEED NOT AND DO NOT CONSIDER WHETHER A
STATE STATUTE SO APPLIED WOULD INVOLVE "CONTRACTS OR AGREEMENTS" IN THE
SENSE IN WHICH THOSE TERMS ARE USED IN THE MCGUIRE ACT.  (FN8)  THE
UNDISPUTED FACTS SHOW THAT LILLY HAD ESTABLISHED A SYSTEM OF RESALE
PRICE MAINTENANCE INVOLVING WRITTEN CONTRACTS WITH SOME 1,400 OHIO
RETAILERS.  SECTION 1333.29(A) OF THE OHIO ACT AUTHORIZES THE
ESTABLISHMENT OF MINIMUM PRICES THROUGH SUCH CONTRACTS.  UNDER THESE
CIRCUMSTANCES THE FACT THAT THE OHIO LAW, AS CONSTRUED FOR PURPOSES OF
ASSESSING ITS VALIDITY UNDER THE STATE CONSTITUTION, REGARDS HUDSON AS
A "CONTRACTOR" (OR "IMPLIED CONTRACTOR") RATHER THAN AS A NONSIGNER
DOES NOT CONTROL THE APPLICATION AND EFFECT OF THE FEDERAL STATUTE -
THE MCGUIRE ACT.  SECTION 3 OF THE FEDERAL ACT PLAINLY UPHOLDS "ANY
RIGHT OR RIGHT OF ACTION CREATED BY ANY STATUTE  ...  IN EFFECT IN ANY
STATE  ...  WHICH IN SUBSTANCE" PERMITS ENFORCEMENT OF RESALE PRICES
PRESCRIBED IN CONTRACTS WHETHER OR NOT THE VIOLATING SELLER WAS A PARTY
TO THOSE CONTRACTS.  FOR THE PURPOSES OF SEC 3 OF THE MCGUIRE ACT,
THEREFORE, IT IS CLEAR THAT THESE CASES INVOLVE THE REQUISITE CONTRACTS
WITH RETAILERS,  (FN8) THAT, REGARDLESS OF WHETHER HUDSON ITSELF
ENTERED INTO "CONTRACTS" WITHIN THE MEANING OF THE MCGUIRE ACT, HUDSON
WAS AT LEAST A NONSIGNER, AND THAT UNDER SUCH CIRCUMSTANCES CONGRESS
PLAINLY INTENDED "TO LET STATE FAIR-TRADE LAWS APPLY  ...  WITH RESPECT
TO NONSIGNERS AS WELL AS SIGNERS."  H.R. REP. NO. 1437, 82D CONG., 2D
SESS., AT 2.  ACCORDINGLY WE HOLD THAT THE OHIO ACT, AS APPLIED TO THE
FACTS OF THESE CASES, COMES WITHIN THE TERMS OF THE MCGUIRE ACT. 

HUDSON ALSO ARGUES THAT THE OHIO STATUTE CAN BE READ TO AUTHORIZE
FAIR-TRADE PRICES TO BE ESTABLISHED BY PERSONS OTHER THAN THE OWNER OF
THE TRADEMARK OR TRADE NAME.  THIS CONTENTION RAISES A HYPOTHETICAL
ISSUE:  LILLY IS THE OWNER OF ALL TRADEMARKS AFFIXED TO ITS GOODS AND
THE OHIO SUPREME COURT HAS NOT INTERPRETED THE STATUTE AS APPLYING TO
PERSONS OTHER THAN OWNERS.  HUDSON FURTHER ARGUES THAT SEC 1333.29(A)
OF THE OHIO ACT AUTHORIZES A PROPRIETOR TO ESTABLISH MINIMUM RESALE
PRICES FOR WHOLESALE DISTRIBUTORS WITH WHOM IT COMPETES AND THEREFORE
CONFLICTS WITH THE MCGUIRE ACT UNDER THIS COURT'S DECISION IN UNITED
STATES V. MCKESSON & ROBBINS, INC., 351 U.S. 305.   THIS ARGUMENT ALSO
RAISES A HYPOTHETICAL QUESTION FOR, AS NOTED, LILLY SELLS ONLY TO
WHOLESALERS AND DOES NOT SELL TO RETAILERS.  (FN10) 

THE QUESTIONS RAISED BY HUDSON IN ITS SECOND AMENDED ANSWER TO THE
CROSS-PETITION,  (FN11) INCLUDING THE CONTENTION THAT PARAGRAPH 6 OF
THE LILLY FAIR-TRADE CONTRACTS COMPELS RETAILERS TO ENTER INTO
ALLEGEDLY UNLAWFUL HORIZONTAL PRICE-FIXING AGREEMENTS IN VIOLATION OF
SEC 1 OF THE SHERMAN ACT, ARE NOT PROPERLY BEFORE US. THEY ARE PENDING
AND UNRESOLVED IN THE OHIO COURT OF COMMON PLEAS, CUYAHOGA COUNTY. 
HUDSON'S REMAINING QUESTIONS ARE NOT PROPERLY PRESENTED FOR RESOLUTION
ON THIS APPEAL; THEY CONCERN ISSUES INVOLVING ALLEGED INTERPRETATIONS
OF THE OHIO ACT NOT MADE OR CONSIDERED BY THE OHIO COURTS OR NOT RAISED
BY THE FACTS OF THE CASE.  ASBURY HOSPITAL V. CASS COUNTY, 326 U.S.
207, 213-214; ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S.
450, 470-471. 

THE PRICE FIXING AUTHORIZED BY THE OHIO FAIR TRADE ACT AND INVOLVING
GOODS MOVING IN INTERSTATE COMMERCE WOULD BE, ABSENT APPROVAL BY
CONGRESS, CLEARLY ILLEGAL UNDER THE SHERMAN ACT, 26 STAT. 209, 15
U.S.C. SEC 1 ET SEQ. DR. MILES MEDICAL CO. V. JOHN D. PARK & SONS CO.,
220 U.S. 373.  "FIXING MINIMUM PRICES, LIKE OTHER TYPES OF PRICE
FIXING, IS ILLEGAL PER SE."  SCHWEGMANN BROS. V. CALVERT DISTILLERS
CORP., SUPRA, AT 386.  CONGRESS, HOWEVER, IN THE MCGUIRE ACT HAS
APPROVED STATE STATUTES SANCTIONING RESALE PRICE MAINTENANCE SCHEMES
SUCH AS THOSE INVOLVED HERE.  WHETHER IT IS GOOD POLICY TO PERMIT SUCH
LAWS IS A MATTER FOR CONGRESS TO DECIDE.  WHERE THE STATUTORY LANGUAGE
AND THE LEGISLATIVE HISTORY CLEARLY INDICATE THE PURPOSE OF CONGRESS
THAT PURPOSE MUST BE UPHELD.  WE THEREFORE AFFIRM THE JUDGMENTS OF THE
SUPREME COURT OF OHIO.  AFFIRMED.    FN1  THE SUPREME COURT OF OHIO
STATED:  "THE FACTS IN BOTH CASES ARE SIMILAR AND THE LAW APPLICABLE IS
THE SAME.  THE APPEALS WILL BE TREATED TOGETHER, SINCE THE ASSIGNMENTS
OF ERRORS IN BOTH CASES ARE EXACTLY THE SAME."  174 OHIO ST. 487, 190
N.E.2D 460.    FN2  HUDSON, IN ITS SECOND AMENDED ANSWER TO THE CROSS
PETITION, ALLEGEDLY RAISED THE FOLLOWING DEFENSES: 

"(1)  HUDSON DID NOT WILFULLY RESELL AT LESS THAN LILLY'S FAIR TRADE
PRICES: 

"(2)  LILLY, A FOREIGN CORPORATION, WAS NOT PROPERLY LICENSED TO
TRANSACT BUSINESS IN THE STATE OF OHIO: 

"(3) PARAGRAPH 6 OF LILLY'S FAIR TRADE CONTRACT (WHICH PROVIDES THAT:
"RETAILER AGREES NOT TO KNOWINGLY SELL ANY OF MANUFACTURER'S
'IDENTIFIED COMMODITIES' TO ANY DEALER WHO FAILS TO OBSERVE THE MINIMUM
RETAIL RESALE PRICES ESTABLISHED UNDER PARAGRAPH 3 HEREOF") COMPELLED
RETAILERS TO ENTER INTO UNLAWFUL HORIZONTAL PRICE FIXING AGREEMENTS IN
VIOLATION OF SECTION 1 OF THE SHERMAN ANTI-TRUST ACT  ...  : 

"(4) LILLY WAS NOT UNIFORMLY ENFORCING ITS FAIR TRADE PROGRAM ON
TRADE-MARKED COMMODITIES IN OHIO; AND: 

"(5) LILLY MODIFIED ITS FAIR TRADE PROGRAM BY ABANDONING ENFORCEMENT
ON ITS PRESCRIPTION PRODUCTS IN OHIO." 

THE ISSUES ON THE CROSS-PETITION ARE PENDING IN THE COURT OF COMMON
PLEAS, CUYAHOGA COUNTY; FURTHER PROCEEDINGS HAVE BEEN STAYED BY THAT
COURT PENDING THE OUTCOME OF THIS APPEAL. 

FN3  THE DECISION WAS AFFIRMED BY A 3-TO-4 VOTE.  THE OHIO
CONSTITUTION, ART. IV, SEC 2, PROVIDES:  "NO LAW SHALL BE HELD
UNCONSTITUTIONAL AND VOID BY THE SUPREME COURT WITHOUT THE CONCURRENCE
OF AT LEAST ALL BUT ONE OF THE JUDGES, EXCEPT IN THE AFFIRMANCE OF A
JUDGMENT OF THE COURT OF APPEALS DECLARING A LAW UNCONSTITUTIONAL AND
VOID." 

FN4  THE FACT THAT SEPARATE AND UNRESOLVED ISSUES ARE PENDING IN THE
OHIO COURTS AND SUBJECT TO "FURTHER PROCEEDINGS" THEREIN ON THE CROSS
PETITION DOES NOT RENDER THE JUDGMENT OF THE OHIO SUPREME COURT ON THE
ISSUE HERE CONSIDERED AND DECIDED NONFINAL OR UNAPPEALABLE WITHIN THE
MEANING OF 28 U.S.C. SEC 1257.  CF. LOCAL NO. 438 CONSTRUCTION &
GENERAL LABORERS' UNION, AFL-CIO, V. CURRY, 371 U.S. 542, 548-552;
MERCANTILE NAT. BANK V. LANGDEAU, 371 U.S. 555, 557-558. 

FN5  THE MCGUIRE ACT AMENDED SEC 5(A) OF THE FEDERAL TRADE COMMISSION
ACT, AS AMENDED.  SECTION 5(A)(2) OF THE LATTER STATUTE AS THUS
AMENDED, 15 U.S.C. SEC 45(A)(2), IS REFERRED TO HEREIN SIMPLY AS
IS REFERRED TO AS SECTION 3 OF THE MCGUIRE ACT. 

FN6  THE PURPOSE OF THE MCGUIRE ACT IS STATED IN ITS PREAMBLE:  "BE
IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED
STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT IT IS THE PURPOSE OF THIS
ACT TO PROTECT THE RIGHTS OF STATES UNDER THE UNITED STATES
CONSTITUTION TO REGULATE THEIR INTERNAL AFFAIRS AND MORE PARTICULARLY
TO ENACT STATUTES AND LAWS, AND TO ADOPT POLICIES, WHICH AUTHORIZE
CONTRACTS AND AGREEMENTS PRESCRIBING MINIMUM OR STIPULATED PRICES FOR
THE RESALE OF COMMODITIES AND TO EXTEND THE MINIMUM OR STIPULATED
PRICES PRESCRIBED BY SUCH CONTRACTS AND AGREEMENTS TO PERSONS WHO ARE
NOT PARTIES THERETO.  IT IS THE FURTHER PURPOSE OF THIS ACT TO PERMIT
SUCH STATUTES, LAWS, AND PUBLIC POLICIES TO APPLY TO COMMODITIES,
CONTRACTS, AGREEMENTS, AND ACTIVITIES IN OR AFFECTING INTERSTATE OR
FOREIGN COMMERCE."  66 STAT. 631-632. 

FN7  SEE UNITED STATES V. MCKESSON & ROBBINS, INC., 351 U.S. 305,
311, N. 14:  "THE MCGUIRE ACT ...  SPECIFICALLY EXEMPTS FROM THE
ANTITRUST LAWS PRICE FIXING UNDER 'FAIR TRADE' AGREEMENTS WHICH BIND
NOT ONLY RETAILERS WHO ARE PARTIES TO THE AGREEMENT BUT ALSO RETAILERS
WHO REFUSE TO SIGN THE AGREEMENT." 

FN8  SEE NOTE, 77 HARV. L. REV. 763, 766-767 (1964). 

FN9  THE COURT OF APPEALS FOR CUYAHOGA COUNTY EXPRESSLY NOTED THAT:
"THESE MANUFACTURERS HAVE ENTERED INTO MANY WRITTEN CONTRACTS WITH
RETAIL PHARMACEUTICAL ESTABLISHMENTS IN OHIO, DETERMINING THE RETAIL
RESALE PRICE FOR THEIR TRADEMARKED OR BRANDED COMMODITIES AND HAVE
CAUSED NOTICE OF THESE CONTRACTS AND THE PRICES THEREIN ESTABLISHED TO
BE SERVED ON HUDSON."  117 OHIO APP. 207, 208; 176 N.E.2D 236, 237. 

FN10 HUDSON CONTENDS THAT THE UPJOHN CASE IS DISTINGUISHABLE IN THIS
REGARD FOR UPJOHN ALLEGEDLY DOES NOT SELL ONLY TO RETAILERS.  IT IS
CLEAR, HOWEVER, THAT THIS CONTENTION WAS RESERVED FOR FUTURE
DETERMINATION BY THE OHIO COURTS PURSUANT TO A STIPULATION OF THE
PARTIES AND WAS NOT IN ANY EVENT PASSED UPON IN THE DECISION FROM WHICH
THE PRESENT APPEAL IS TAKEN. 

FN11  SEE NOTE 2, SUPRA. 

MR. JUSTICE HARLAN, DISSENTING. 

I WOULD DISMISS THESE APPEALS FOR LACK OF JURISDICTION.  UNDER WELL
ESTABLISHED PRINCIPLES, THE JUDGMENTS ON REVIEW HERE ARE NOT "FINAL,"
AS REQUIRED BY 28 U.S.C. SEC 1257,  (FN1) EVEN ASSUMING THAT THE
FEDERAL QUESTION WHICH THE COURT DECIDES CAN BE DEEMED TO HAVE BEEN
PASSED ON BY THE SUPREME COURT OF OHIO.  (FN2) 

THE APPELLANT, HUDSON, FILED ITS PETITIONS FOR A DECLARATORY JUDGMENT
THAT THE OHIO FAIR TRADE ACT (FN3) WAS INVALID AS SOON AS THE ACT WENT
INTO EFFECT.  (FN4)  THE APPELLEES, UPJOHN AND LILLY, FILED ANSWERS AND
CROSS-PETITIONS ALLEGING HUDSON'S REFUSAL TO COMPLY WITH THE ACT AND
SEEKING INJUNCTIVE RELIEF AND DAMAGES.  PURSUANT TO A STIPULATION OF
THE PARTIES AND AS PERMITTED BY OHIO PROCEDURE, THE ISSUE RAISED BY THE
PETITION FOR A DECLARATORY JUDGMENT - THE "GENERAL" VALIDITY OF THE
OHIO ACT - WAS TRIED SEPARATELY AND IN ADVANCE OF THE TRIAL OF ALL
OTHER FACTUAL AND LEGAL ISSUES RAISED BY THE ANSWERS AND CROSS
PETITIONS AND THE RESPONSES THERETO.  IN THIS POSTURE, THE CASES,
DECIDED TOGETHER AT EVERY LEVEL, PROCEEDED THROUGH THE OHIO COURTS. 
THE COURT OF COMMON PLEAS FOR CUYAHOGA COUNTY DECIDED THAT THE OHIO
FAIR TRADE ACT WAS INVALID UNDER THE OHIO CONSTITUTION, BECAUSE IT
INVOLVED AN UNLAWFUL DELEGATION OF LEGISLATIVE POWER.  ON APPEAL, THE
COURT OF APPEALS FOR CUYAHOGA COUNTY REVERSED, 117 OHIO APP. 207, 176
N.E.2D 236, AND REMANDED THE CASE TO THE COURT OF COMMON PLEAS "FOR
FURTHER PROCEEDINGS ACCORDING TO LAW WITH RESPECT TO THE CROSS-PETITION
FILED IN THIS CAUSE  ...  ."  THE SUPREME COURT OF OHIO AFFIRMED.  174
OHIO ST. 487, 190 N.E.2D 460. 

ALTHOUGH THE DISTINCTION BETWEEN FINAL AND NONFINAL JUDGMENTS, FOR
PURPOSES OF THIS COURT'S JURISDICTION, HAS BEEN "FAINT AND FALTERING AT
TIMES," REPUBLIC NATURAL GAS CO. V. OKLAHOMA, 334 U.S. 62, 69, IT HAS
NOT DISAPPEARED ALTOGETHER.  THE NATURE OF THE DISTINCTION AND THE
REASONS FOR MAINTAINING IT HAVE REPEATEDLY BEEN STATED.  TO BE REVIEWED
IN THIS COURT, A STATE COURT JUDGMENT MUST BE "FINAL AS AN EFFECTIVE
DETERMINATION OF THE LITIGATION AND NOT OF MERELY INTERLOCUTORY OR
INTERMEDIATE STEPS THEREIN.  IT MUST BE THE FINAL WORD OF A FINAL
COURT."  MARKET STREET R. CO. V. RAILROAD COMM'N, 324 U.S. 548, 551. 
IT "MUST END THE LITIGATION BY FULLY DETERMINING THE RIGHTS OF THE
PARTIES  ...  ."  GOSPEL ARMY V. LOS ANGELES, 331 U.S. 543, 546.  SEE
ALSO, E.G., MOWER V. FLETCHER, 114 U.S. 127, 128; COBBLEDICK V. UNITED
STATES, 309 U.S. 323, 324-325; DEPARTMENT OF BANKING V. PINK, 317 U.S.
264, 267-268; POPE V. ATLANTIC COAST LINE R. CO., 345 U.S. 379, 381
382. 

"SINCE ITS ESTABLISHMENT, IT HAS BEEN A MARKED CHARACTERISTIC OF THE
FEDERAL JUDICIAL SYSTEM NOT TO PERMIT AN APPEAL UNTIL A LITIGATION HAS
BEEN CONCLUDED IN THE COURT OF FIRST INSTANCE  ...  . THIS REQUIREMENT
HAS THE SUPPORT OF CONSIDERATIONS GENERALLY APPLICABLE TO GOOD JUDICIAL
ADMINISTRATION.  IT AVOIDS THE MISCHIEF OF ECONOMIC WASTE AND OF
DELAYED JUSTICE.  ONLY IN VERY FEW SITUATIONS, WHERE INTERMEDIATE
RULINGS MAY CARRY SERIOUS PUBLIC CONSEQUENCES, HAS THERE BEEN A
DEPARTURE FROM THIS REQUIREMENT OF FINALITY FOR FEDERAL APPELLATE
JURISDICTION.  THIS PREREQUISITE TO REVIEW DERIVES ADDED FORCE WHEN THE
JURISDICTION OF THIS COURT IS INVOKED TO UPSET THE DECISION OF A STATE
COURT.  HERE WE ARE IN THE REALM OF POTENTIAL CONFLICT BETWEEN THE
COURTS OF TWO DIFFERENT GOVERNMENTS  ...  .  THIS REQUIREMENT IS NOT
ONE OF THOSE TECHNICALITIES TO BE EASILY SCORNED.  IT IS AN IMPORTANT
FACTOR IN THE SMOOTH WORKING OF OUR FEDERAL SYSTEM."  RADIO STATION
WOW, INC., V. JOHNSON, 326 U.S. 120, 123-124. 

ONE WOULD HAVE THOUGHT THAT THE JUDGMENTS REVIEWED HERE WERE
PARADIGMS OF THE NONFINAL JUDGMENT.  ASSUMING THAT THE FEDERAL QUESTION
WHICH THE COURT DECIDES WAS REALLY PASSED ON BY THE OHIO SUPREME COURT,
(FN5) IT IS CLEAR NONETHELESS THAT THIS LITIGATION IS STILL IN ITS
EARLY STAGES.  NO RIGHTS HAVE YET BEEN ESTABLISHED; NO LIABILITIES HAVE
BEEN INCURRED.  THE COURT ACKNOWLEDGES THAT FEDERAL QUESTIONS,
INVOLVING UNRESOLVED ISSUES OF FACT AND INTERPRETATIONS OF THE OHIO
ACT, MUST STILL BE DECIDED BY THE OHIO COURTS.  IN UPJOHN, NO. 489, A
FEDERAL QUESTION CONCERNING THE POSSIBLE APPLICATION OF OUR DECISION IN
UNITED STATES V. MCKESSON & ROBBINS, INC., 351 U.S. 305, "WAS RESERVED
FOR FUTURE DETERMINATION BY THE OHIO COURTS PURSUANT TO A STIPULATION
OF THE PARTIES  ... ."  ANTE, P. 394, NOTE 10.  AND IN LILLY, NO. 490,
OTHER QUESTIONS, INCLUDING AT LEAST ONE FEDERAL QUESTION," ARE PENDING
AND UNRESOLVED IN THE OHIO COURT OF COMMON PLEAS  ...  ."  ANTE, P.
395.  THE COURT CAN ONLY HOPE THAT IT WILL NOT PROVE TO HAVE WASTED ITS
TIME ALTOGETHER IN THESE "PIECEMEAL PROCEEDINGS," POPE V. ATLANTIC
COAST LINE R. CO., SUPRA, AT 381, BECAUSE A SUBSEQUENT DECISION OF THE
OHIO COURTS RENDERS THE DECISION HERE "UNNECESSARY AND IRRELEVANT TO A
COMPLETE DISPOSITION OF THE LITIGATION."  ID., AT 382.  IF THAT DOES
NOT HAPPEN, THERE IS EVERY LIKELIHOOD THAT THE CASES WILL BE BROUGHT
BACK TO THIS COURT FOR A SECOND TIME, FOR CONSIDERATION OF THE
QUESTIONS NOW UNRESOLVED.  IN RADIO STATION WOW, SUPRA, AT 127, THIS
COURT STATED:  "OF COURSE, WHERE THE REMAINING LITIGATION MAY RAISE
OTHER FEDERAL QUESTIONS THAT MAY LATER COME HERE,  ...  TO ALLOW REVIEW
OF AN INTERMEDIATE ADJUDICATION WOULD OFFEND THE DECISIVE OBJECTION TO
FRAGMENTARY REVIEWS."  THE COURT IGNORES THAT "DECISIVE OBJECTION." 

IN ADDITION TO MAKING AN UNECONOMIC USE OF ITS OWN TIME, THE COURT'S
ENTERTAINMENT OF THESE APPEALS HAS INTERFERED WITH THE ORDERLY
PROCEDURES OF THE OHIO COURTS.  IN ITS BRIEF TO THIS COURT, LILLY
STATES THAT PROCEEDINGS IN THE COURT OF COMMON PLEAS HAVE BEEN STAYED
"PENDING THE OUTCOME OF THIS APPEAL."  BRIEF, P. 11.  UPJOHN STATES IN
ITS BRIEF THAT IT HAS NOT YET TAKEN ACTION TO BRING TO TRIAL THE ISSUES
RESERVED IN ITS CASE, BRIEF, P. 13, PRESUMABLY BECAUSE OF THE PENDENCY
OF THE PRESENT PROCEEDINGS.  SO FAR AS THE LITIGANTS ARE CONCERNED,
THIS MARCH TO THE WELL FOR AN EYE-DROPPER OF WATER DOES THEM NO GOOD
EITHER, EXCEPT INSOFAR AS DELAY MAY BE TEMPORARILY USEFUL TO ONE PARTY
OR THE OTHER.  NOW THAT THIS COURT'S DECISION IS RENDERED, THE ACTION
WILL PRESUMABLY GO FORWARD IN THE STATE COURTS; THE LITIGANTS ARE NO
BETTER INFORMED OF THEIR ULTIMATE RIGHTS THAN THEY WERE BEFORE THE CASE
CAME HERE, AND THE CASE IS NOT A JOT CLOSER TO ITS CONCLUSION. 

THE COURT GIVES NO EXPLANATION AT ALL FOR ITS DEPARTURE FROM
ESTABLISHED PRINCIPLES.  THERE IS NOT THE FAINTEST SUGGESTION OF
COMPELLING PUBLIC CONSIDERATIONS REQUIRING A DETERMINATION OF WHATEVER
ISSUE IT IS THAT THE COURT DOES ACTUALLY DECIDE.  (FN6)  NOR ARE THERE
ANY PRIVATE INTERESTS AT STAKE WHICH WILL BE IRREMEDIABLY LOST UNLESS
THE COURT ACTS, SINCE NO RIGHTS OR LIABILITIES WERE DETERMINED BELOW OR
HAVE BEEN DETERMINED HERE.  THE FACT THAT UNDER OHIO PROCEDURE HUDSON'S
PETITION FOR A DECLARATORY JUDGMENT WAS SEPARABLE FROM THE CROSS
PETITION AND COULD BE DETERMINED INDEPENDENTLY OF IT HAS NO BEARING ON
WHETHER THAT DETERMINATION WAS FINAL FOR PURPOSES OF THIS COURT'S
JURISDICTION.  (FN7)  E.G., DEPARTMENT OF BANKING V. PINK, SUPRA, AT
268; MARKET STREET R. CO. V. RAILROAD COMM'N, SUPRA, AT 551. 

NINETY PERCENT OF THIS CASE REMAINS SUBMERGED.  I SUSPECT THAT THE
EXPLANATION FOR THE COURT'S SNIPPING OFF AND DECIDING THE 10% THAT HAS
REACHED THE SURFACE LIES IN THE FACT THAT THE COURT FAILED TO DISMISS
THE APPEAL WHEN IT WAS FIRST PRESENTED, 375 U.S. 938, 939, BECAUSE THE
JURISDICTIONAL OBJECTIONS TO REVIEW WERE NOT THEN SO APPARENT.  (FN8)
I AM AT A LOSS TO UNDERSTAND WHY THE COURT CHOOSES TO COMPOUND THE
ORIGINAL ERROR, RATHER THAN TO CORRECT IT. 

I WOULD DISMISS BOTH APPEALS. 

FN1  "FINAL JUDGMENT OR DECREES RENDERED BY THE HIGHEST COURT OF A
STATE IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE SUPREME
COURT AS FOLLOWS: 

     *         *         *         *         * 

"(2)  BY APPEAL, WHERE IS DRAWN IN QUESTION THE VALIDITY OF A STATUTE
OF ANY STATE ON THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION,
TREATIES OR LAWS OF THE UNITED STATES, AND THE DECISION IS IN FAVOR OF
ITS VALIDITY." 

FN2  SEE NOTE 5, INFRA, P. 398. 

FN3  OHIO REV. CODE SECS 1333.27-1333.34. 

FN4  THE ACT BECAME EFFECTIVE ON OCTOBER 22, 1959.  IN THE UPJOHN
CASE, NO. 489, HUDSON FILED ITS ORIGINAL PETITION IN AUGUST 1959, AFTER
THE ACT HAD BEEN PASSED BY THE OHIO LEGISLATURE, AND FILED SEVERAL
AMENDED PETITIONS AFTER THE ACT BECAME EFFECTIVE.  THE ORIGINAL
PETITION IN LILLY, NO. 490, WAS FILED ON OCTOBER 22, 1959; IT ALSO WAS
LATER AMENDED. 

FN5  THE COURT OF COMMON PLEAS DID NOT REACH ANY FEDERAL QUESTION,
SINCE IT FOUND THE OHIO ACT INVALID UNDER THE STATE CONSTITUTION.  ON
APPEAL, THE COURT OF APPEALS DESCRIBED THE CASES AS FOLLOWS:    "THE
ACTIONS SEEK A DECLARATORY JUDGMENT DECLARING THE OHIO FAIR TRADE ACT
INVALID AND UNCONSTITUTIONAL.  BOTH CASES INVOLVE SIMILAR FACTS AND,
WITH THE QUESTIONS TO BE DETERMINED BY THIS COURT THE SAME IN EACH
CASE, THE APPEALS WILL BE CONSIDERED TOGETHER.  THE ASSIGNMENT OF ERROR
IS IDENTICAL IN BOTH CASES. 

"'FOR ITS ASSIGNMENT OF ERROR, THE DEFENDANT-APPELLANT ASSERTS THAT
THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY ERRED IN DECLARING
VIOLATION OF THE CONSTITUTION OF THE STATE OF OHIO, AND THEREFORE VOID
AND NOT BINDING UPON THE PLAINTIFF-APPELLEE, AND IN GRANTING JUDGMENT
FOR THE PLAINTIFF-APPELLEE ON ITS PETITION AND DISMISSING THE CROSS
PETITION OF THE DEFENDANT-APPELLANT.'"  117 OHIO APP. 207-208, 276
N.E.2D, 237. 

THERE FOLLOWED A LONG DISCUSSION OF THE "HISTORICAL BACKGROUND," ID.,
AT 208, 176 N.E.2D, 238, OF THE OHIO ACT, WHICH INCLUDED CONSIDERATION
OF MAJOR FEDERAL LEGISLATION AND CASES.  IT IS ENTIRELY CLEAR FROM THE
OPINION THAT FEDERAL LAW WAS CONSIDERED ONLY AS PART OF THE
DEMONSTRATION "THAT NOT ONLY THE GREAT MAJORITY OF STATE LEGISLATURES
BUT ALSO THE CONGRESS OF THE UNITED STATES HAVE DETERMINED THAT THERE
IS NEED TO PROVIDE REASONABLE CONTROLS IN THIS FIELD OF FAIR TRADE,
UNDER THE POLICE POWERS OF THE SOVEREIGN POWER."  ID., AT 224, 176
N.E.2D, 247.  THERE IS NOTHING TO INDICATE THAT THE COURT CONSIDERED
ANYTHING BEYOND THE SINGLE CONTENTION THAT THE COURT OF COMMON PLEAS
HAD ERRED IN HOLDING THE ACT INVALID UNDER THE STATE CONSTITUTION.  A
DISSENTING OPINION STATES:  "ON THIS APPEAL, THE SINGLE QUESTION
PRESENTED IS WHETHER THE 1959 FAIR TRADE ACT  ...  HAS THE EFFECT OF
NULLIFYING THE DECISION OF THE SUPREME COURT OF OHIO IN UNION CARBIDE &
CARBON CORP. V. BARGAIN FAIR, INC., 167 OHIO ST., 182."  ID., AT 230,
176 N.E.2D, 251.  THE UNION CARBIDE CASE WAS CONCERNED SOLELY WITH THE
VALIDITY OF A PRIOR FAIR TRADE ACT UNDER THE OHIO CONSTITUTION.  IN A
PETITION FOR REHEARING (WHICH WAS DENIED) THE APPELLANT ITSELF URGED
THAT THE COURT APPEARED TO HAVE IGNORED THE QUESTION WHETHER THE OHIO
ACT WAS CONSISTENT WITH FEDERAL LAW, IN PARTICULAR THE MCGUIRE ACT. 
ONLY THE FORMAL JUDGMENT, FROM WHICH THE COURT QUOTES, ANTE, P. 388,
CONTAINS ANY INTIMATION THAT THE COURT OF APPEALS CONSIDERED ANY
FEDERAL QUESTION. 

ON REVIEW IN THE SUPREME COURT OF OHIO, NEITHER THE MAJORITY OPINION
NOR THE DISSENTING OPINION EVEN ONCE MENTIONS THE MCGUIRE ACT OR THIS
COURT'S CASES CONSTRUING IT.  174 OHIO ST. 487, 497, 190 N.E.2D 460,
466. 

FN6  INDEED, SO FAR AS I CAN TELL, THE COURT DECIDES NOTHING AT ALL
WHICH IS NOT ALREADY ESTABLISHED LAW.  IN UNITED STATES V. MCKESSON &
ROBBINS, INC., 351 U.S. 305, 311, NOTE 14, THIS COURT STATED: 

"  ...  THE MCGUIRE ACT SPECIFICALLY EXEMPTS FROM THE ANTITRUST LAWS
PRICE FIXING UNDER 'FAIR TRADE' AGREEMENTS WHICH BIND NOT ONLY
RETAILERS WHO ARE PARTIES TO THE AGREEMENT BUT ALSO RETAILERS WHO
REFUSE TO SIGN THE AGREEMENT." 

AS I READ THE COURT'S OPINION IN THIS CASE, ITS SOLE HOLDING IS THAT
"WHERE SANCTIONED BY A STATE FAIR-TRADE ACT, A TRADEMARK OWNER SUCH AS
LILLY COULD BE PERMITTED TO ENFORCE, EVEN AGAINST A NONSIGNING RETAILER
SUCH AS HUDSON, THE STIPULATED MINIMUM PRICES ESTABLISHED BY WRITTEN
CONTRACTS WITH OTHER RETAILERS."  ANTE, P. 392.  THIS IS NOTHING MORE
THAN A RESTATEMENT OF THE PASSAGE QUOTED FROM MCKESSON & ROBBINS, WITH
THE NAMES OF THE PARTIES IN THIS CASE FILLED IN.  NO SPECIAL QUESTIONS
WHICH MIGHT BE RAISED BY THE FACTS OF THIS CASE OR BY PARTICULAR
FEATURES OF THE OHIO ACT ARE DECIDED HERE, SINCE THE COURT PROPERLY
LEAVES ALL SUCH QUESTIONS FOR THE INITIAL DECISION OF THE OHIO COURTS. 

THE TRIVIALITY, GIVEN THE ESTABLISHED LAW, OF THE QUESTION WHICH THE
COURT DECIDES MAKES ITS DETERMINATION TO REACH THE QUESTION THE MORE
PUZZLING. 

FN7  THE FACT THAT HUDSON'S ORIGINAL PETITION WAS FOR A DECLARATORY
JUDGMENT HAS NO BEARING ON THE JURISDICTIONAL QUESTION PRESENT HERE. 
SUCH FACT DOES NOT DEFEAT THIS COURT'S JURISDICTION, NASHVILLE,
CHATTANOOGA & ST. LOUIS R. CO. V. WALLACE, 288 U.S. 249; BUT IT SURELY
DOES NOT CREATE JURISDICTION WHICH WOULD OTHERWISE BE LACKING. 

FN8  THE JURISDICTIONAL QUESTION WAS NOT CALLED TO THE ATTENTION OF
THE COURT OF EITHER OF THE APPELLEES AT THE TIME PROBABLE JURISDICTION
WAS NOTED.  UPJOHN FILED NO RESPONSE TO THE JURISDICTION STATEMENT;
LILLY, THEN REPRESENTED BY OTHER COUNSEL, FILED A MOTION TO DISMISS,
BUT DID NOT MENTION THE JURISDICTIONAL QUESTION. 
..END :
























CHAMBERLIN V. DADE COUNTY BOARD OF PUBLIC INSTRUCTION 377 U.S. 402 


NO. 939.  DECIDED JUNE 1, 1964.  - 160 SO. 2D 97, REVERSED IN PART,
APPEAL DISMISSED IN PART. 


DEVOTIONAL BIBLE READING REQUIRED BY STATUTE, AND RECITING PRAYERS, IN
FLORIDA PUBLIC SCHOOLS ARE UNCONSTITUTIONAL.  SCHOOL DISTIRCT OF
ABINGTON TOWNSHIP V. SCHEMPP, 374 U.S. 203, FOLLOWED.  AS TO OTHER
ISSUES, APPEAL DISMISSED FOR WANT OF PROPERLY PRESENTED FEDERAL
QUESTIONS. 

CHAMBERLIN ET AL. V. DADE COUNTY BOARD OF PUBLIC INSTURCTION ET AL. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO USE THE RECORD IN NO. 520, OCTOBER TERM 1962, IS
GRANTED.  THE JUDGMENT OF THE FLORIDA SUPREME COURT IS REVERSED WITH
RESPECT TO THE ISSUES OF THE CONSTITUTIONALITY OF PRAYER, AND OF
DEVOTIONAL BIBLE READING PURSUANT TO A FLORIDA STATUTE, FLA. STAT.
(1961) SEC 231.09, IN THE PUBLIC SCHOOLS OF DADE COUNTY.  SCHOOL
DISTRICT OF ABINGTON TOWNSHIP V. SCHEMPP, 374 U.S. 203.  AS TO THE
OTHER QUESTIONS RAISED, THE APPEAL IS DISMISSED FOR WANT OF PROPERLY
PRESENTED FEDERAL QUESTIONS.  ASBURY HOSPITAL V. CASS COUNTY, 326 U.S.
207, 213-214. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AGREES, CONCURRING
IN PART. 

I JOIN IN REVERSING THE SUPREME COURT OF FLORIDA ON THE MAIN ISSUE IN
THE CASE. 

THE "OTHER QUESTIONS RAISED" WHICH THE COURT REFUSES TO CONSIDER
BECAUSE NOT "PROPERLY PRESENTED" INVOLVE THE CONSTITUTIONALITY UNDER
THE FIRST AND FOURTEENTH AMENDMENTS OF BACCALAUREATE SERVICES IN THE
SCHOOLS, A RELIGIOUS CENSUS AMONG PUPILS, AND A RELIGIOUS TEST FOR
TEACHERS.  THE FLORIDA SUPREME COURT DISPOSED OF THOSE ISSUES ON THE
AUTHORITY OF DOREMUS V. BOARD OF EDUCATION, 342 U.S. 429, WHICH HELD
THAT A TAXPAYER LACKS STANDING TO CHALLENGE RELIGIOUS EXERCISES IN THE
PUBLIC SCHOOLS.  IRRESPECTIVE OF DOREMUS V. BOARD OF EDUCATION, SUPRA,
I THINK IT IS ARGUABLE THAT APPELLANT-TAXPAYERS DO HAVE STANDING TO
CHALLENGE THESE PRACTICES. 

I THINK, HOWEVER, THAT TWO OF THOSE "OTHER QUESTIONS" - THE
BACCALAUREATE SERVICES AND THE RELIGIOUS CENSUS - DO NOT PRESENT
SUBSTANTIAL FEDERAL QUESTIONS, AND SO I CONCUR IN THE DISMISSAL OF THE
APPEAL AS TO THEM.  AS TO THE RELIGIOUS TEST FOR TEACHERS,* I THINK A
SUBSTANTIAL QUESTION IS PRESENTED.  CF. TORCASO V. WATKINS, 367 U.S.
488.  I WOULD THEREFORE PUT THAT QUESTION DOWN FOR ARGUMENT, POSTPONING
THE QUESTION OF JURISDICTION TO THE MERITS. 

*APPLICANTS FOR TEACHING POSITIONS ARE REQUIRED TO ANSWER THE
QUESTION, "DO YOU BELIEVE IN GOD?"  RELIGIOUS ATTITUDES ARE ALSO
CONSIDERED IN MAKING PROMOTIONS. 

MR. JUSTICE STEWART WOULD NOTE PROBABLE JURISDICTION OF THIS APPEAL
AND SET IT DOWN FOR ARGUMENT ON THE MERITS. 
..END :















UNION OIL CO. OF CALIFORNIA V. STATE BOARD OF EQUALIZATION OF CALIFORNIA
377 U.S. 404 


NO. 968.  DECIDED JUNE 1, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  REPORTED BELOW:  60 CAL. 2D 441, 386
P.2D 496. 


UNION OIL CO. OF CALIFORNIA V. STATE BOARD OF EQUALIZATION OF
CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











WILLIAMS V. UNITED STATES 377 U.S. 404 


NO. 1022, MISC.  DECIDED JUNE 1, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


WILLIAMS V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















MEEKS V. GEORGIA SOUTHERN & FLORIDA RAILWAY CO. 377 U.S. 405 


NO. 981.  DECIDED JUNE 1, 1964.* - CERTIORARI GRANTED AND JUDGMENTS
REVERSED.  - REPORTED BELOW:  NO. 981, 108 GA. APP. 808, 134 S.E.2D
555. 

*TOGETHER WITH NO. 1004, BRASWELL, ADMINISTRATRIX, V. NEW YORK,
CHICAGO & ST. LOUIS RAILROAD CO., ON PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF ILLINOIS. 


MEEKS V. GEORGIA SOUTHERN & FLORIDA RAILWAY CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
GEORGIA. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED AND THE JUDGMENTS
ARE REVERSED.  ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING IN NO.
981, AND DISSENTING IN PART AND CONCURRING IN PART IN NO. 1004. 

THESE ARE TWO MORE NEGLIGENCE CASES, NEITHER OF WHICH SHOULD HAVE
BEEN BROUGHT HERE SINCE BOTH INVOLVE ONLY QUESTIONS OF THE SUFFICIENCY
OF THE EVIDENCE TO SUPPORT THE JURY VERDICTS.  SEE, E.G., MY DISSENTING
OPINION IN DENNIS V. DENVER & RIO GRANDE W.R. CO., 375 U.S. 208, 212,
AND THOSE IN THE CASES THEREIN CITED; CF. MY DISSENTING OPINION IN
EICHEL V. NEW YORK CENTRAL R. CO., 375 U.S. 253, 256. 

FEELING OBLIGED, HOWEVER, TO REACH THE MERITS BECAUSE THE CASES ARE
BEFORE US, SEE MY OPINION IN ROGERS V. MISSOURI P.R. CO., 352 U.S. 500,
559-562, I DISSENT FROM THE JUDGMENT IN NO. 981 AND CONCUR IN THE
JUDGMENT IN NO. 1004. 
..END :


















ZAPATA V. CALIFORNIA 377 U.S. 406 


NO. 1025, MISC.  DECIDED JUNE 1, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW: 220 CAL. APP. 2D 903, 34 CAL.
RPTR.  171. 


ZAPATA V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, THIRD
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














MARDER V. MASSACHUSETTS 377 U.S. 407 


NO. 819.  DECIDED JUNE 1, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  SEE 346 MASS. 408,
193 N.E.2D 695. 


MARDER V. MASSACHUSETTS. 

APPEAL FROM THE SUPERIOR COURT OF MASSACHUSETTS, SUFFOLK COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THIS APPEAL RAISES THE QUESTION OF WHETHER A PERSON CHARGED WITH A
TRAFFIC VIOLATION (OR PRESUMABLY ANY OTHER CRIMINAL OFFENSE) MAY BE
FORCED BY A STATUTE, GENERAL LAWS OF MASS., C. 90, SECS 20 AND 20A, TO
CHOOSE BETWEEN FOREGOING A TRIAL BY PLEADING GUILTY AND PAYING A SMALL
FINE, OR GOING TO TRIAL AND THEREBY EXPOSING HIMSELF TO THE POSSIBILITY
OF A GREATER PUNISHMENT IF FOUND GUILTY.  I EXPRESS NO VIEW ON THE
MERITS OF THIS QUESTION.  BUT I WOULD NOTE PROBABLE JURISDICTION, SINCE
THE ISSUE, IN MY VIEW, PRESENTS A SUBSTANTIAL FEDERAL QUESTION, AND
SINCE I AM NOT CONVINCED THAT THE GENERALLY SOUND ADVICE TO "PAY THE
TWO DOLLARS" NECESSARILY REFLECTS A CONSTITUTIONALLY PERMISSIBLE
REQUIREMENT. 

MR. JUSTICE WHITE IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :




















GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY 377 U.S. 218 


NO. 592.  ARGUED MARCH 30, 1964.  - DECIDED MAY 25, 1964.  - 322 F.2D
332, REVERSED. 


THIS LITIGATION BEGAN IN 1951 AND RESULTED IN THIS COURT'S HOLDING IN
BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954), THAT VIRGINIA SCHOOL
SEGREGATION LAWS DENIED THE EQUAL PROTECTION OF THE LAWS AND, AFTER
REARGUMENT ON THE QUESTION OF RELIEF, THE REMAND TO THE DISTRICT COURT
A YEAR LATER FOR ENTRY OF AN ORDER THAT THE NEGRO COMPLAINANTS IN
PRINCE EDWARD COUNTY BE ADMITTED TO PUBLIC SCHOOLS ON A RACIALLY
NONDISCRIMINATORY BASIS "WITH ALL DELIBERATE SPEED."  FACED WITH AN
ORDER TO DESEGREGATE, THE COUNTY BOARD OF SUPERVISORS IN 1959 REFUSED
TO APPROPRIATE FUNDS FOR THE OPERATION OF PUBLIC SCHOOLS ALTHOUGH A
PRIVATE FOUNDATION OPERATED SCHOOLS FOR WHITE CHILDREN ONLY, WHO IN
1960 BECAME ELIGIBLE FOR COUNTY AND STATE TUITION GRANTS.  PUBLIC
SCHOOLS CONTINUED TO OPERATE ELSEWHERE IN VIRGINIA.  AFTER PROTRACTED
LITIGATION IN THE FEDERAL AND STATE COURTS, THE DISTRICT COURT IN 1961
ENJOINED THE COUNTY FROM PAYING TUITION GRANTS OR GIVING TAX CREDITS AS
LONG AS THE PUBLIC SCHOOLS REMAINED CLOSED AND THEREAFTER, REFUSING TO
ABSTAIN PENDING PROCEEDINGS IN THE STATE COURTS, HELD THAT THE PUBLIC
SCHOOLS COULD NOT REMAIN CLOSED TO AVOID THIS COURT'S DECISION WHILE
OTHER PUBLIC SCHOOLS IN THE STATE REMAINED OPEN.  THE COURT OF APPEALS
REVERSED, HOLDING THAT THE DISTRICT COURT SHOULD HAVE AWAITED STATE
COURT DETERMINATION OF THESE ISSUES.  HELD: 

1.  THOUGH THE AMENDED SUPPLEMENTAL COMPLAINT ADDED NEW PARTIES AND
RELIED ON DEVELOPMENTS OCCURRING AFTER THE ACTION HAD BEGUN, IT DID NOT
PRESENT A NEW CAUSE OF ACTION BUT CONSTITUTED A PROPER AMENDMENT UNDER
RULE 15(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE, SINCE THE NEW
TRANSACTIONS WERE ALLEGED TO BE PART OF PERSISTENT AND CONTINUING
EFFORTS TO CIRCUMVENT THIS COURT'S HOLDINGS.  PP. 226-227. 

2.  SINCE THE SUPPLEMENTAL COMPLAINT ALLEGED A DISCRIMINATORY SYSTEM
UNIQUE TO ONE COUNTY, ALTHOUGH INVOLVING SOME ACTIONS OF THE STATE,
ADJUDICATION BY A THREE-JUDGE COURT WAS NOT REQUIRED UNDER 28 U.S.C.
SEC 2281.  PP. 227-228. 

3.  THIS ACTION IS NOT FORBIDDEN BY THE ELEVENTH AMENDMENT TO THE
CONSTITUTION SINCE IT CHARGES THAT STATE AND COUNTY OFFICIALS DEPRIVED
PETITIONERS OF THEIR CONSTITUTIONAL RIGHTS.  EX PARTE YOUNG, 209 U.S.
123 (1908), FOLLOWED.  P. 228. 

4.  BECAUSE OF THE LONG DELAY RESULTING FROM STATE AND COUNTY
RESISTANCE TO ENFORCING THE CONSTITUTIONAL RIGHTS HERE INVOLVED AND
BECAUSE THE HIGHEST STATE COURT HAS NOW PASSED ON ALL THE STATE LAW
ISSUES HERE, FEDERAL COURT ABSTENTION PENDING STATE JUDICIAL RESOLUTION
OF THE LEGALITY OF RESPONDENTS' CONDUCT UNDER THE CONSTITUTION AND LAWS
OF VIRGINIA IS NOT REQUIRED OR APPROPRIATE IN THIS CASE.  PP. 228-229. 

5.  UNDER THE CIRCUMSTANCES OF THIS CASE, CLOSING OF THE PRINCE
EDWARD COUNTY PUBLIC SCHOOLS WHILE AT THE SAME TIME GIVING TUITION
GRANTS AND TAX CONCESSIONS TO ASSIST WHITE CHILDREN IN PRIVATE
SEGREGATED SCHOOLS DENIED PETITIONERS THE EQUAL PROTECTION OF THE LAWS
GUARANTEED BY THE FOURTEENTH AMENDMENT.  PP. 229-232. 

(A)  PRINCE EDWARD COUNTY SCHOOL CHILDREN ARE TREATED DIFFERENTLY
FROM THOSE OF OTHER COUNTIES SINCE THEY MUST GO TO PRIVATE SCHOOLS OR
NONE AT ALL.  P. 230. 

(B)  THE PUBLIC SCHOOLS OF PRINCE EDWARD COUNTY WERE CLOSED AND THE
PRIVATE SCHOOLS OPERATED IN THEIR PLACE ONLY FOR CONSTITUTIONALLY
IMPERMISSIBLE REASONS OF RACE.  PP. 231-232. 

6.  QUICK AND EFFECTIVE INJUNCTIVE RELIEF SHOULD BE GRANTED AGAINST
THE RESPONDENTS, ALL OF WHOM HAVE DUTIES RELATING TO FINANCING,
SUPERVISING, OR OPERATING THE PRINCE EDWARD COUNTY SCHOOLS.  PP. 232
234. 

(A)  THE INJUNCTION AGAINST COUNTY OFFICIALS PAYING TUITION GRANTS
AND GIVING TAX CREDITS WHILE PUBLIC SCHOOLS REMAINED CLOSED IS
APPROPRIATE AND NECESSARY WHERE THE GRANTS AND CREDITS HAVE BEEN PART
OF THE COUNTY PROGRAM TO DEPRIVE PETITIONERS OF A PUBLIC EDUCATION
ENJOYED BY CHILDREN IN OTHER COUNTIES.  P. 233. 

(B)  THE DISTRICT COURT MAY REQUIRE THE COUNTY SUPERVISORS TO LEVY
TAXES TO RAISE FUNDS FOR THE NONRACIAL OPERATION OF THE COUNTY SCHOOL
SYSTEM AS IS THE CASE WITH OTHER COUNTIES.  P. 233. 

(C)  THE DISTRICT COURT MAY IF NECESSARY ISSUE AN ORDER TO CARRY OUT
ITS RULING THAT THE PRINCE EDWARD COUNTY PUBLIC SCHOOLS MAY NOT BE
CLOSED TO AVOID THE LAW OF THE LAND WHILE THE STATE PERMITS OTHER
PUBLIC SCHOOLS TO REMAIN OPEN AT THE EXPENSE OF THE TAXPAYERS.  PP. 233
234. 

(D)  NEW PARTIES MAY BE ADDED IF NECESSARY TO EFFECTUATE THE DISTRICT
COURT'S DECREE.  P. 234. 

GRIFFIN ET AL. V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION BEGAN IN 1951 WHEN A GROUP OF NEGRO SCHOOL CHILDREN
LIVING IN PRINCE EDWARD COUNTY, VIRGINIA, FILED A COMPLAINT IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALLEGING THAT THEY HAD BEEN DENIED ADMISSION TO PUBLIC SCHOOLS ATTENDED
BY WHITE CHILDREN AND CHARGING THAT VIRGINIA LAWS REQUIRING SUCH SCHOOL
SEGREGATION DENIED COMPLAINANTS THE EQUAL PROTECTION OF THE LAWS IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  ON MAY 17, 1954, TEN YEARS AGO,
WE HELD THAT THE VIRGINIA SEGREGATION LAWS DID DENY EQUAL PROTECTION. 
BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954).  ON MAY 31, 1955,
AFTER REARGUMENT ON THE NATURE OF RELIEF, WE REMANDED THIS CASE, ALONG
WITH OTHERS HEARD WITH IT, TO THE DISTRICT COURTS TO ENTER SUCH ORDERS
AS "NECESSARY AND PROPER TO ADMIT COMPLAINANTS TO PUBLIC SCHOOLS ON A
RACIALLY NONDISCRIMINATORY BASIS WITH ALL DELIBERATE SPEED  ...  ." 
BROWN V. BOARD OF EDUCATION, 349 U.S. 294, 301 (1955). 

EFFORTS TO DESEGREGATE PRINCE EDWARD COUNTY'S SCHOOLS MET WITH
RESISTANCE.  IN 1956 SECTION 141 OF THE VIRGINIA CONSTITUTION WAS
AMENDED TO AUTHORIZE THE GENERAL ASSEMBLY AND LOCAL GOVERNING BODIES TO
APPROPRIATE FUNDS TO ASSIST STUDENTS TO GO TO PUBLIC OR TO NONSECTARIAN
PRIVATE SCHOOLS IN ADDITION TO THOSE OWNED BY THE STATE OR BY THE
LOCALITY.  (FN1)  THE GENERAL ASSEMBLY MET IN SPECIAL SESSION AND
ENACTED LEGISLATION TO CLOSE ANY PUBLIC SCHOOLS WHERE WHITE AND COLORED
CHILDREN WERE ENROLLED TOGETHER, TO CUT OFF STATE FUNDS TO SUCH
SCHOOLS, TO PAY TUITION GRANTS TO CHILDREN IN NONSECTARIAN PRIVATE
SCHOOLS, AND TO EXTEND STATE RETIREMENT BENEFITS TO TEACHERS IN NEWLY
CREATED PRIVATE SCHOOLS.  (FN2)  THE LEGISLATION CLOSING MIXED SCHOOLS
AND CUTTING OFF STATE FUNDS WAS LATER INVALIDATED BY THE SUPREME COURT
OF APPEALS OF VIRGINIA, WHICH HELD THAT THESE LAWS VIOLATED THE
VIRGINIA CONSTITUTION.  HARRISON V. DAY, 200 VA. 439, 106 S.E.2D 636
(1959).  IN APRIL 1959 THE GENERAL ASSEMBLY ABANDONED "MASSIVE
RESISTANCE" TO DESEGREGATION AND TURNED INSTEAD TO WHAT WAS CALLED A
"FREEDOM OF CHOICE" PROGRAM.  THE ASSEMBLY REPEALED THE REST OF THE
1956 LEGISLATION, AS WELL AS A TUITION GRANT LAW OF JANUARY 1959, AND
ENACTED A NEW TUITION GRANT PROGRAM.  (FN3)  AT THE SAME TIME THE
ASSEMBLY REPEALED VIRGINIA'S COMPULSORY ATTENDANCE LAWS  (FN4)  AND
INSTEAD MADE SCHOOL ATTENDANCE A MATTER OF LOCAL OPTION.  (FN5) 

IN JUNE 1959, THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT DIRECTED THE FEDERAL DISTRICT COURT (1) TO ENJOIN
DISCRIMINATORY PRACTICES IN PRINCE EDWARD COUNTY SCHOOLS, (2) TO
REQUIRE THE COUNTY SCHOOL BOARD TO TAKE "IMMEDIATE STEPS" TOWARD
ADMITTING STUDENTS WITHOUT REGARD TO RACE TO THE WHITE HIGH SCHOOL "IN
THE SCHOOL TERM BEGINNING SEPTEMBER 1959," AND (3) TO REQUIRE THE BOARD
TO MAKE PLANS FOR ADMISSIONS TO ELEMENTARY SCHOOLS WITHOUT REGARD TO
RACE.  ALLEN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, 266 F.2D
507, 511 (C.A. 4TH CIR. 1959).  HAVING AS EARLY AS 1956 RESOLVED THAT
THEY WOULD NOT OPERATE PUBLIC SCHOOLS "WHEREIN WHITE AND COLORED
CHILDREN ARE TAUGHT TOGETHER," THE SUPERVISORS OF PRINCE EDWARD COUNTY
REFUSED TO LEVY ANY SCHOOL TAXES FOR THE 1959-1960 SCHOOL YEAR,
EXPLAINING THAT THEY WERE "CONFRONTED WITH A COURT DECREE WHICH
REQUIRES THE ADMISSION OF WHITE AND COLORED CHILDREN TO ALL THE SCHOOLS
OF THE COUNTY WITHOUT REGARD TO RACE OR COLOR."  (FN6)  AS A RESULT,
THE COUNTY'S PUBLIC SCHOOLS DID NOT REOPEN IN THE FALL OF 1959 AND HAVE
REMAINED CLOSED EVER SINCE, ALTHOUGH THE PUBLIC SCHOOLS OF EVERY OTHER
COUNTY IN VIRGINIA HAVE CONTINUED TO OPERATE UNDER LAWS GOVERNING THE
STATE'S PUBLIC SCHOOL SYSTEM AND TO DRAW FUNDS PROVIDED BY THE STATE
FOR THAT PURPOSE.  A PRIVATE GROUP, THE PRINCE EDWARD SCHOOL
FOUNDATION, WAS FORMED TO OPERATE PRIVATE SCHOOLS FOR WHITE CHILDREN IN
PRINCE EDWARD COUNTY AND, HAVING BUILT ITS OWN SCHOOL PLANT, HAS BEEN
IN OPERATION EVER SINCE THE CLOSING OF THE PUBLIC SCHOOLS.  AN OFFER TO
SET UP PRIVATE SCHOOLS FOR COLORED CHILDREN IN THE COUNTY WAS REJECTED,
THE NEGROES OF PRINCE EDWARD PREFERRING TO CONTINUE THE LEGAL BATTLE
FOR DESEGREGATED PUBLIC SCHOOLS, AND COLORED CHILDREN WERE WITHOUT
FORMAL EDUCATION FROM 1959 TO 1963, WHEN FEDERAL, STATE, AND COUNTY
AUTHORITIES COOPERATED TO HAVE CLASSES CONDUCTED FOR NEGROES AND WHITES
IN SCHOOL BUILDINGS OWNED BY THE COUNTY.  DURING THE 1959-1960 SCHOOL
YEAR THE FOUNDATION'S SCHOOLS FOR WHITE CHILDREN WERE SUPPORTED
ENTIRELY BY PRIVATE CONTRIBUTIONS, BUT IN 1960 THE GENERAL ASSEMBLY
ADOPTED A NEW TUITION GRANT PROGRAM MAKING EVERY CHILD, REGARDLESS OF
RACE, ELIGIBLE FOR TUITION GRANTS OF $125 OR $150 TO ATTEND A
NONSECTARIAN PRIVATE SCHOOL OR A PUBLIC SCHOOL OUTSIDE HIS LOCALITY,
AND ALSO AUTHORIZING LOCALITIES TO PROVIDE THEIR OWN GRANTS.  (FN7)
THE PRINCE EDWARD BOARD OF SUPERVISORS THEN PASSED AN ORDINANCE
PROVIDING TUITION GRANTS OF $100, SO THAT EACH CHILD ATTENDING THE
PRINCE EDWARD SCHOOL FOUNDATION'S SCHOOLS RECEIVED A TOTAL OF $225 IF
IN ELEMENTARY SCHOOL OR $250 IF IN HIGH SCHOOL.  IN THE 1960-1961
SESSION THE MAJOR SOURCE OF FINANCIAL SUPPORT FOR THE FOUNDATION WAS IN
THE INDIRECT FORM OF THESE STATE AND COUNTY TUITION GRANTS, PAID TO
CHILDREN ATTENDING FOUNDATION SCHOOLS.  AT THE SAME TIME, THE COUNTY
BOARD OF SUPERVISORS PASSED AN ORDINANCE ALLOWING PROPERTY TAX CREDITS
UP TO 25% FOR CONTRIBUTIONS TO ANY "NONPROFIT, NONSECTARIAN PRIVATE
SCHOOL" IN THE COUNTY. 

IN 1961 PETITIONERS HERE FILED A SUPPLEMENTAL COMPLAINT, ADDING NEW
PARTIES AND SEEKING TO ENJOIN THE RESPONDENTS FROM REFUSING TO OPERATE
AN EFFICIENT SYSTEM OF PUBLIC FREE SCHOOLS IN PRINCE EDWARD COUNTY AND
TO ENJOIN PAYMENT OF PUBLIC FUNDS TO HELP SUPPORT PRIVATE SCHOOLS WHICH
EXCLUDED STUDENTS ON ACCOUNT OF RACE.  THE DISTRICT COURT, FINDING THAT
"THE END RESULT OF EVERY ACTION TAKEN BY THAT BODY (BOARD OF
SUPERVISORS) WAS DESIGNED TO PRESERVE SEPARATION OF THE RACES IN THE
SCHOOLS OF PRINCE EDWARD COUNTY," ENJOINED THE COUNTY FROM PAYING
TUITION GRANTS OR GIVING TAX CREDITS SO LONG AS PUBLIC SCHOOLS REMAINED
CLOSED.  (FN8)  ALLEN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY,
198 F. SUPP. 497, 503 (D.C.E.D. VA. 1961).  AT THIS TIME THE DISTRICT
COURT DID NOT PASS ON WHETHER THE PUBLIC SCHOOLS OF THE COUNTY COULD BE
CLOSED BUT ABSTAINED PENDING DETERMINATION BY THE VIRGINIA COURTS OF
WHETHER THE CONSTITUTION AND LAWS OF VIRGINIA REQUIRED THE PUBLIC
SCHOOLS TO BE KEPT OPEN.   LATER, HOWEVER, WITHOUT WAITING FOR THE
VIRGINIA COURTS TO DECIDE THE QUESTION,  (FN9)  THE DISTRICT COURT HELD
THAT "THE PUBLIC SCHOOLS OF PRINCE EDWARD COUNTY MAY NOT BE CLOSED TO
AVOID THE EFFECT OF THE LAW OF THE LAND AS INTERPRETED BY THE SUPREME
COURT, WHILE THE COMMONWEALTH OF VIRGINIA PERMITS OTHER PUBLIC SCHOOLS
TO REMAIN OPEN AT THE EXPENSE OF THE TAXPAYERS."  ALLEN V. COUNTY
SCHOOL BOARD OF PRINCE EDWARD COUNTY, 207 F. SUPP. 349, 355 (D.C.E.D.
VA. 1962).  SOON THEREAFTER, A DECLARATORY JUDGMENT SUIT WAS BROUGHT BY
THE COUNTY BOARD OF SUPERVISORS AND THE COUNTY SCHOOL BOARD IN A
VIRGINIA CIRCUIT COURT.  HAVING DONE THIS, THESE PARTIES ASKED THE
FEDERAL DISTRICT COURT TO ABSTAIN FROM FURTHER PROCEEDINGS UNTIL THE
SUIT IN THE STATE COURTS HAD RUN ITS COURSE, BUT THE DISTRICT COURT
DECLINED; IT REPEATED ITS ORDER THAT PRINCE EDWARD'S PUBLIC SCHOLLS
MIGHT NOT BE CLOSED TO AVOID DESEGREGATION WHILE THE OTHER PUBLIC
SCHOOLS IN VIRGINIA REMAINED OPEN.  THE COURT OF APPEALS REVERSED,
JUDGE BELL DISSENTING, HOLDING THAT THE DISTRICT COURT SHOULD HAVE
ABSTAINED TO AWAIT STATE COURT DETERMINATION OF THE VALIDITY OF THE
TUITION GRANTS AND THE TAX CREDITS, AS WELL AS THE VALIDITY OF THE
CLOSING OF THE PUBLIC SCHOOLS.  GRIFFIN V. BOARD OF SUPERVISORS OF
PRINCE EDWARD COUNTY, 322 F.2D 332 (C.A. 4TH CIR. 1963).  WE GRANTED
CERTIORARI, STATING:  (FN10) 

"IN VIEW OF THE LONG DELAY IN THE CASE SINCE OUR DECISION IN THE
BROWN CASE AND THE IMPORTANCE OF THE QUESTIONS PRESENTED, WE GRANT
CERTIORARI AND PUT THE CASE DOWN FOR ARGUMENT MARCH 30, 1964, ON THE
MERITS, AS WE HAVE DONE IN OTHER COMPARABLE SITUATIONS WITHOUT WAITING
FOR FINAL ACTION BY THE COURT OF APPEALS."  375 U.S. 391, 392. 

FOR REASONS TO BE STATED, WE AGREE WITH THE DISTRICT COURT THAT,
UNDER THE CIRCUMSTANCES HERE, CLOSING THE PRINCE EDWARD COUNTY SCHOOLS
WHILE PUBLIC SCHOOLS IN ALL OTHER COUNTIES OF VIRGINIA WERE BEING
MAINTAINED DENIED THE PETITIONERS AND THE CLASS OF NEGRO STUDENTS THEY
REPRESENT THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH
AMENDMENT. 

                                           I. 

BEFORE REACHING THE SUBSTANTIAL QUESTIONS PRESENTED, WE SHALL NOTE
SEVERAL PROCEDURAL MATTERS URGED BY RESPONDENTS IN A MOTION TO DISMISS
THE SUPPLEMENTAL AMENDED COMPLAINT FILED JULY 7, 1961 - TEN YEARS AFTER
THIS ACTION WAS INSTITUTED.  HAD THE MOTION TO DISMISS BEEN GRANTED ON
ANY OF THE GROUNDS ASSIGNED, THE RESULT WOULD HAVE BEEN ONE MORE OF
WHAT JUDGE BELL, DISSENTING IN THE COURT OF APPEALS, REFERRED TO AS
"THE INORDINATE DELAYS WHICH HAVE ALREADY OCCURRED IN THIS PROTRACTED
LITIGATION  ...  ."  322 F.2D, AT 344.  WE SHALL TAKE UP SEPARATELY THE
GROUNDS ASSIGNED FOR DISMISSAL. 

(A)  IT IS CONTENDED THAT THE AMENDED SUPPLEMENTAL COMPLAINT
PRESENTED A NEW AND DIFFERENT CAUSE OF ACTION FROM THAT PRESENTED IN
THE ORIGINAL COMPLAINT.  THE SUPPLEMENTAL PLEADING DID ADD NEW PARTIES
AND RELY IN GOOD PART ON TRANSACTIONS, OCCURRENCES, AND EVENTS WHICH
HAD HAPPENED SINCE THE ACTION HAD BEGUN.  BUT THESE NEW TRANSACTIONS
WERE ALLEGED TO HAVE OCCURRED AS A PART OF CONTINUED, PERSISTENT
EFFORTS TO CURCUMVENT OUR 1955 HOLDING THAT PRINCE EDWARD COUNTY COULD
NOT CONTINUE TO OPERATE, MAINTAIN, AND SUPPORT A SYSTEM OF SCHOOLS IN
WHICH STUDENTS WERE SEGREGATED ON A RACIAL BASIS.  THE ORIGINAL
COMPLAINT HAD CHALLENGED RACIAL SEGREGATION IN SCHOOLS WHICH WERE
ADMITTEDLY PUBLIC.  THE NEW COMPLAINT CHARGED THAT PRINCE EDWARD COUNTY
WAS STILL USING ITS FUNDS, ALONG WITH STATE FUNDS, TO ASSIST PRIVATE
SCHOOLS WHILE AT THE SAME TIME CLOSING DOWN THE COUNTY'S PUBLIC
SCHOOLS, ALL TO AVOID THE DESEGREGATION ORDERED IN THE BROWN CASES. 
THE AMENDED COMPLAINT THUS WAS NOT A NEW CAUSE OF ACTION BUT MERELY
PART OF THE SAME OLD CAUSE OF ACTION ARISING OUT OF THE CONTINUED
DESIRE OF COLORED STUDENTS IN PRINCE EDWARD COUNTY TO HAVE THE SAME
OPPORTUNITY FOR STATE-SUPPORTED EDUCATION AFFORDED TO WHITE PEOPLE, A
DESIRE THWARTED BEFORE 1959 BE SEGREGATION IN THE PUBLIC SCHOOLS AND
AFTER 1959 BY A COMBINATION OF CLOSED PUBLIC SCHOOLS AND STATE AND
COUNTY GRANTS TO WHITE CHILDREN AT THE FOUNDATION'S PRIVATE SCHOOLS. 
RULE 15(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE PLAINLY PERMITS
SUPPLEMENTAL AMENDMENTS TO COVER EVENTS HAPPENING AFTER SUIT, (FN11)
AND IT FOLLOWS, OF COURSE, THAT PERSONS PARTICIPATING IN THESE NEW
EVENTS MAY BE ADDED IF NECESSARY.  SUCH AMENDMENTS ARE WELL WITHIN THE
BASIC AIM OF THE RULES TO MAKE PLEADINGS A MEANS TO ACHIEVE AN ORDERLY
AND FAIR ADMINISTRATION OF JUSTICE. 

(B)  WHEN THIS ACTION WAS ORIGINALLY BROUGHT IN 1951, IT BROADLY
CHARGED THAT THE CONSTITUTION AND LAWS OF VIRGINIA PROVIDED A STATE
SYSTEM OF PUBLIC SCHOOLS WHICH UNCONSTITUTIONALLY SEGREGATED SCHOOL
CHILDREN ON THE BASIS OF COLOR.  THIS CHALLENGE WAS HEARD BY A DISTRICT
COURT OF THREE JUDGES AS REQUIRED BY 28 U.S.C. SEC 2281.  WHEN IN BROWN
WE HELD THE SCHOOL SEGREGATION LAWS INVALID AS A DENIAL OF EQUAL
PROTECTION OF THE LAWS UNDER THE FOURTEENTH AMENDMENT AND REMANDED FOR
THE DISTRICT COURT TO FASHION A DECREE REQUIRING ABANDONMENT OF
SEGREGATION "WITH ALL DELIBERATE SPEED," THE THREE-JUDGE COURT CEASED
TO FUNCTION, AND A SINGLE DISTRICT JUDGE TOOK OVER.  RESPONDENTS
CONTEND THAT THE SINGLE JUDGE ERRONEOUSLY PASSED ON THE ISSUES RAISED
BY THE SUPPLEMENTAL COMPLAINT AND THAT WE SHOULD NOW DELAY THE CASE
STILL FURTHER BY VACATING HIS JUDGMENT ALONG WITH THAT OF THE COURT OF
APPEALS AND REMANDING TO THE DISTRICT COURT FOR A COMPLETELY NEW TRIAL
BEFORE THREE JUDGES.  WE REJECT THE CONTENTION.  IN RORICK V. BOARD OF
COMM'RS OF EVERGLADES DRAINAGE DIST., 307 U.S. 208, 212 (1939), WE
SAID, IN INTERPRETING THE THREE-JUDGE STATUTE (THEN SEC 266 OF THE
JUDICIAL CODE OF 1911, AS AMENDED, 28 U.S.C. (1934 ED.)  SEC 380): 

"'DESPITE THE GENERALITY OF THE LANGUAGE' OF THAT SECTION, IT IS NOW
SETTLED DOCTRINE THAT ONLY A SUIT INVOLVING 'A STATUTE OF GENERAL
APPLICATION' AND NOT ONE AFFECTING A 'PARTICULAR MUNICIPALITY OR
DISTRICT' CAN INVOKE SEC 266." 

WHILE A HOLDING AS TO THE CONSTITUTIONAL DUTY OF THE SUPERVISORS AND
OTHER OFFICIALS OF PRINCE EDWARD COUNTY MAY HAVE REPERCUSSIONS OVER THE
STATE AND MAY REQUIRE THE DISTRICT COURT'S ORDERS TO RUN TO PARTIES
OUTSIDE THE COUNTY, IT IS NEVERTHELESS TRUE THAT WHAT IS ATTACKED IN
THIS SUIT IS NOT SOMETHING WHICH THE STATE HAS COMMANDED PRINCE EDWARD
TO DO - CLOSE ITS PUBLIC SCHOOLS AND GIVE GRANTS TO CHILDREN IN PRIVATE
SCHOOLS - BUT RATHER SOMETHING WHICH THE COUNTY WITH STATE ACQUIESCENCE
AND COOPERATION HAS UNDERTAKEN TO DO ON ITS OWN VOLITION, A DECISION
NOT BINDING ON ANY OTHER COUNTY IN VIRGINIA.  EVEN THOUGH ACTIONS OF
THE STATE ARE INVOLVED, THE CASE, AS IT COMES TO US, CONCERNS NOT A
STATE-WIDE SYSTEM BUT RATHER A SITUATION UNIQUE TO PRINCE EDWARD
COUNTY.  WE HOLD THAT THE SINGLE DISTRICT JUDGE DID NOT ERR IN
ADJUDICATING THIS PRESENT CONTROVERSY.    (C)  IT IS CONTENDED THAT THE
CASE IS AN ACTION AGAINST THE STATE, IS FORBIDDEN BY THE ELEVENTH
AMENDMENT, AND THEREFORE SHOULD BE DISMISSED.  THE COMPLAINT, HOWEVER,
CHARGED THAT STATE AND COUNTY OFFICIALS WERE DEPRIVING PETITIONERS OF
RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT.  IT HAS BEEN SETTLED LAW
SINCE EX PARTE YOUNG, 209 U.S. 123 (1908), THAT SUITS AGAINST STATE AND
COUNTY OFFICIALS TO ENJOIN THEM FROM INVADING CONSTITUTIONAL RIGHTS ARE
NOT FORBIDDEN BY THE ELEVENTH AMENDMENT. 

(D)  IT IS ARGUED THAT THE DISTRICT COURT SHOULD HAVE ABSTAINED FROM
PASSING ON THE ISSUES RAISED HERE IN ORDER TO AWAIT A DETERMINATION BY
THE SUPREME COURT OF APPEALS OF VIRGINIA AS TO WHETHER THE CONDUCT
COMPLAINED OF VIOLATED THE CONSTITUTION OR LAWS OF VIRGINIA.  THE COURT
OF APPEALS SO HELD, 322 F.2D 332, AND THIS COURT HAS, IN CASES DEEMED
APPROPRIATE, DIRECTED THAT SUCH A COURSE BE FOLLOWED BY A DISTRICT
COURT OR APPROVED ITS HAVING BEEN FOLLOWED.  E.G., RAILROAD COMM'N OF
TEXAS V. PULLMAN CO., 312 U.S. 496 (1941); LOUISIANA POWER & LIGHT CO.
V. CITY OF THIBODAUX, 360 U.S. 25 (1959).  BUT WE AGREE WITH THE
DISSENTING JUDGE IN THE COURT OF APPEALS, 322 F.2D, AT 344-345, THAT
THIS IS NOT A CASE FOR ABSTENTION.  IN THE FIRST PLACE, THE SUPREME
COURT OF APPEALS OF VIRGINIA HAS ALREADY PASSED UPON THE STATE LAW WITH
RESPECT TO ALL THE ISSUES HERE.  COUNTY SCHOOL BOARD OF PRINCE EDWARD
COUNTY V. GRIFFIN, 204 VA. 650, 133 S.E.2D 565 (1963).  BUT QUITE
INDEPENDENTLY OF THIS, WE HOLD THAT THE ISSUES HERE IMPERATIVELY CALL
FOR DECISION NOW.  THE CASE HAS BEEN DELAYED SINCE 1951 BY RESISTANCE
AT THE STATE AND COUNTY LEVEL, BY LEGISLATION, AND BY LAWSUITS.  THE
ORIGINAL PLAINTIFFS HAVE DOUBTLESS ALL PASSED HIGH SCHOOL AGE.  THERE
HAS BEEN ENTIRELY TOO MUCH DELIBERATION AND NOT ENOUGH SPEED IN
ENFORCING THE CONSTITUTIONAL RIGHTS WHICH WE HELD IN BROWN V. BOARD OF
EDUCATION, SUPRA, HAD BEEN DENIED PRINCE EDWARD COUNTY NEGRO CHILDREN. 
WE ACCORDINGLY REVERSE THE COURT OF APPEALS' JUDGMENT REMANDING THE
CASE TO THE DISTRICT COURT FOR ABSTENTION, AND WE PROCEED TO THE
MERITS. 

II. 

IN COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY V. GRIFFIN, 204 VA.
650, 133 S.E.2D 565 (1963), THE SUPREME COURT OF APPEALS OF VIRGINIA
UPHELD AS VALID UNDER STATE LAW THE CLOSING OF THE PRINCE EDWARD COUNTY
PUBLIC SCHOOLS, THE STATE AND COUNTY TUITION GRANTS FOR CHILDREN WHO
ATTEND PRIVATE SCHOOLS, AND THE COUNTY'S TAX CONCESSIONS FOR THOSE WHO
MAKE CONTRIBUTIONS TO PRIVATE SCHOOLS.  THE SAME OPINION ALSO HELD THAT
EACH COUNTY HAD "AN OPTION TO OPERATE OR NOT TO OPERATE PUBLIC
SCHOOLS."   204 VA., AT 671, 133 S.E.2D, AT 580.  WE ACCEPT THIS CASE
AS A DEFINITIVE AND AUTHORITATIVE HOLDING OF VIRGINIA LAW, BINDING ON
US, BUT WE CANNOT ACCEPT THE VIRGINIA COURT'S FURTHER HOLDING, BASED
LARGELY ON THE COURT OF APPEALS' OPINION IN THIS CASE, 322 F.2D 332,
THAT CLOSING THE COUNTY'S PUBLIC SCHOOLS UNDER THE CIRCUMSTANCES OF THE
CASE DID NOT DENY THE COLORED SCHOOL CHILDREN OF PRINCE EDWARD COUNTY
EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FEDERAL CONSTITUTION. 

SINCE 1959, ALL VIRGINIA COUNTIES HAVE HAD THE BENEFITS OF PUBLIC
SCHOOLS BUT ONE: PRINCE EDWARD.  HOWEVER, THERE IS NO RULE THAT
COUNTIES, AS COUNTIES, MUST BE TREATED ALIKE; THE EQUAL PROTECTION
CLAUSE RELATES TO EQUAL PROTECTION OF THE LAWS "BETWEEN PERSONS AS SUCH
RATHER THAN BETWEEN AREAS."  SALSBURG V. MARYLAND, 346 U.S. 545, 551
(1954).  INDEED, SHOWING THAT DIFFERENT PERSONS ARE TREATED DIFFERENTLY
IS NOT ENOUGH, WITHOUT MORE, TO SHOW A DENIAL OF EQUAL PROTECTION. 
KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS, 330 U.S. 552, 556 (1947). 
IT IS THE CIRCUMSTANCES OF EACH CASE WHICH GOVERN.  SKINNER V. OKLAHOMA
EX REL. WILLIAMSON, 316 U.S. 535, 539-540 (1942). 

VIRGINIA LAW, AS HERE APPLIED, UNQUESTIONABLY TREATS THE SCHOOL
CHILDREN OF PRINCE EDWARD DIFFERENTLY FROM THE WAY IT TREATS THE SCHOOL
CHILDREN OF ALL OTHER VIRGINIA COUNTIES.  PRINCE EDWARD CHILDREN MUST
GO TO A PRIVATE SCHOOL OR NONE AT ALL; ALL OTHER VIRGINIA CHILDREN CAN
GO TO PUBLIC SCHOOLS.  CLOSING PRINCE EDWARD'S SCHOOLS BEARS MORE
HEAVILY ON NEGRO CHILDREN IN PRINCE EDWARD COUNTY SINCE WHITE CHILDREN
THERE HAVE ACCREDITED PRIVATE SCHOOLS WHICH THEY CAN ATTEND, WHILE
COLORED CHILDREN UNTIL VERY RECENTLY HAVE HAD NO AVAILABLE PRIVATE
SCHOOLS, AND EVEN THE SCHOOL THEY NOW ATTEND IS A TEMPORARY EXPEDIENT. 
APART FROM THIS EXPEDIENT, THE RESULT IS THAT PRINCE EDWARD COUNTY
SCHOOL CHILDREN, IF THEY GO TO SCHOOL IN THEIR OWN COUNTY, MUST GO TO
RACIALLY SEGREGATED SCHOOLS WHICH, ALTHOUGH DESIGNATED AS PRIVATE, ARE
BENEFICIARIES OF COUNTY AND STATE SUPPORT. 

A STATE, OF COURSE, HAS A WIDE DISCRETION IN DECIDING WHETHER LAWS
SHALL OPERATE STATEWIDE OR SHALL OPERATE ONLY IN CERTAIN COUNTIES, THE
LEGISLATURE "HAVING IN MIND THE NEEDS AND DESIRES OF EACH."  SALSBURG
V. MARYLAND, SUPRA, 346 U.S., AT 552.  A STATE MAY WISH TO SUGGEST, AS
MARYLAND DID IN SALSBURG, THAT THERE ARE REASONS WHY ONE COUNTY OUGHT
NOT TO BE TREATED LIKE ANOTHER.  346 U.S., AT 553-554.  BUT THE RECORD
IN THE PRESENT CASE COULD NOT BE CLEARER THAT PRINCE EDWARD'S PUBLIC
SCHOOLS WERE CLOSED AND PRIVATE SCHOOLS OPERATED IN THEIR PLACE WITH
STATE AND COUNTY ASSISTANCE, FOR ONE REASON, AND ONE REASON ONLY:  TO
ENSURE, THROUGH MEASURES TAKEN BY THE COUNTY AND THE STATE, THAT WHITE
AND COLORED CHILDREN IN PRINCE EDWARD COUNTY WOULD NOT, UNDER ANY
CIRCUMSTANCES, GO TO THE SAME SCHOOL.  WHATEVER NONRACIAL GROUNDS MIGHT
SUPPORT A STATE'S ALLOWING A COUNTY TO ABANDON PUBLIC SCHOOLS, THE
OBJECT MUST BE A CONSTITUTIONAL ONE, AND GROUNDS OF RACE AND OPPOSITION
TO DESEGREGATION DO NOT QUALIFY AS CONSTITUTIONAL.  (FN12) 

IN HALL V. ST. HELENA PARISH SCHOOL BOARD, 197 F. SUPP. 649 (D.C.E.D.
LA. 1961), A THREE-JUDGE DISTRICT COURT INVALIDATED A LOUISIANA STATUTE
WHICH PROVIDED "A MEANS BY WHICH PUBLIC SCHOOLS UNDER DESEGREGATION
ORDERS MAY BE CHANGED TO 'PRIVATE SCHOOLS OPERATED IN THE SAME WAY, IN
THE SAME BUILDINGS, WITH THE SAME FURNISHINGS, WITH THE SAME MONEY, AND
UNDER THE SAME SUPERVISION AS THE PUBLIC SCHOOLS."  ID., AT 651.  IN
ADDITION, THAT STATUTE ALSO PROVIDED THAT WHERE THE PUBLIC SCHOOLS WERE
"CLOSED," THE SCHOOL BOARD WAS "CHARGED WITH RESPONSIBILITY FOR
FURNISHING FREE LUNCHES, TRANSPORTATION, AND GRANTS-IN-AID TO THE
CHILDREN ATTENDING THE 'PRIVATE' SCHOOLS."  IBID.  WE AFFIRMED THE
DISTRICT COURT'S JUDGMENT INVALIDATING THE LOUISIANA STATUTE AS A
DENIAL OF EQUAL PROTECTION.  368 U.S. 515 (1962).  WHILE THE LOUISIANA
PLAN AND THE VIRGINIA PLAN WORKED IN DIFFERENT WAYS, IT IS PLAIN THAT
BOTH WERE CREATED TO ACCOMPLISH THE SAME THING:  THE PERPETUATION OF
RACIAL SEGREGATION BY CLOSING PUBLIC SCHOOLS AND OPERATING ONLY
SEGREGATED SCHOOLS SUPPORTED DIRECTLY OR INDIRECTLY BY STATE OR COUNTY
FUNDS.  SEE COOPER V. AARON, 358 U.S. 1, 17 (1958).  EITHER PLAN WORKS
TO DENY COLORED STUDENTS EQUAL PROTECTION OF THE LAWS.  ACCORDINGLY, WE
AGREE WITH THE DISTRICT COURT THAT CLOSING THE PRINCE EDWARD SCHOOLS
AND MEANWHILE CONTRIBUTING TO THE SUPPORT OF THE PRIVATE SEGREGATED
WHITE SCHOOLS THAT TOOK THEIR PLACE DENIED PETITIONERS THE EQUAL
PROTECTION OF THE LAWS. 

                                            III. 

WE COME NOW TO THE QUESTION OF THE KIND OF DECREE NECESSARY AND
APPROPRIATE TO PUT AN END TO THE RACIAL DISCRIMINATION PRACTICED
AGAINST THESE PETITIONERS UNDER AUTHORITY OF THE VIRGINIA LAWS.  THAT
RELIEF NEEDS TO BE QUICK AND EFFECTIVE.  THE PARTIES DEFENDANT ARE THE
BOARD OF SUPERVISORS, SCHOOL BOARD, TREASURER, AND DIVISION
SUPERINTENDENT OF SCHOOLS OF PRINCE EDWARD COUNTY, AND THE STATE BOARD
OF EDUCATION AND THE STATE SUPERINTENDENT OF EDUCATION.  ALL OF THESE
HAVE DUTIES WHICH RELATE DIRECTLY OR INDIRECTLY TO THE FINANCING,
SUPERVISION, OR OPERATION OF THE SCHOOLS IN PRINCE EDWARD COUNTY.  THE
BOARD OF SUPERVISORS HAS THE SPECIAL RESPONSIBILITY TO LEVY LOCAL TAXES
TO OPERATE PUBLIC SCHOOLS OR TO AID CHILDREN ATTENDING THE PRIVATE
SCHOOLS NOW FUNCTIONING THERE FOR WHITE CHILDREN.  THE DISTRICT COURT
ENJOINED THE COUNTY OFFICIALS FROM PAYING COUNTY TUITION GRANTS OR
GIVING TAX EXEMPTIONS AND FROM PROCESSING APPLICATIONS FOR STATE
TUITION GRANTS SO LONG AS THE COUNTY'S PUBLIC SCHOOLS REMAINED CLOSED. 
WE HAVE NO DOUBT OF THE POWER OF THE COURT TO GIVE THIS RELIEF TO
ENFORCE THE DISCONTINUANCE OF THE COUNTY'S RACIALLY DISCRIMINATORY
PRACTICES.  IT HAS LONG BEEN ESTABLISHED THAT ACTIONS AGAINST A COUNTY
CAN BE MAINTAINED IN UNITED STATES COURTS IN ORDER TO VINDICATE
FEDERALLY GUARANTEED RIGHTS.  E.G., LINCOLN COUNTY V. LUNING, 133 U.S.
529 (1890); KENNECOTT COPPER CORP. V. STATE TAX COMM'N, 327 U.S. 573,
579 (1946).  THE INJUNCTION AGAINST PAYING TUITION GRANTS AND GIVING
TAX CREDITS WHILE PUBLIC SCHOOLS REMAIN CLOSED IS APPROPRIATE AND
NECESSARY SINCE THOSE GRANTS AND TAX CREDITS  (FN13)  HAVE BEEN
ESSENTIAL PARTS OF THE COUNTY'S PROGRAM, SUCCESSFUL THUS FAR, TO
DEPRIVE PETITIONERS OF THE SAME ADVANTAGES OF A PUBLIC SCHOOL EDUCATION
ENJOYED BY CHILDREN IN EVERY OTHER PART OF VIRGINIA.  FOR THE SAME
REASONS THE DISTRICT COURT MAY, IF NECESSARY TO PREVENT FURTHER RACIAL
DISCRIMINATION, REQUIRE THE SUPERVISORS TO EXERCISE THE POWER THAT IS
THEIRS TO LEVY TAXES TO RAISE FUNDS ADEQUATE TO REOPEN, OPERATE, AND
MAINTAIN WITHOUT RACIAL DISCRIMINATION A PUBLIC SCHOOL SYSTEM IN PRINCE
EDWARD COUNTY LIKE THAT OPERATED IN OTHER COUNTIES IN VIRGINIA. 

THE DISTRICT COURT HELD THAT "THE PUBLIC SCHOOLS OF PRINCE EDWARD
COUNTY MAY NOT BE CLOSED TO AVOID THE EFFECT OF THE LAW OF THE LAND AS
INTERPRETED BY THE SUPREME COURT, WHILE THE COMMONWEALTH OF VIRGINIA
PERMITS OTHER PUBLIC SCHOOLS TO REMAIN OPEN AT THE EXPENSE OF THE
TAXPAYERS."  ALLEN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, 207
F. SUPP. 349, 355 (D.C.E.D. VA. 1962).  AT THE SAME TIME THE COURT GAVE
NOTICE THAT IT WOULD LATER CONSIDER AN ORDER TO ACCOMPLISH THIS PURPOSE
IF THE PUBLIC SCHOOLS WERE NOT REOPENED BY SEPTEMBER 7, 1962.  THAT DAY
HAS LONG PASSED, AND THE SCHOOLS ARE STILL CLOSED.  ON REMAND,
THEREFORE, THE COURT MAY FIND IT NECESSARY TO CONSIDER FURTHER SUCH AN
ORDER.  AN ORDER OF THIS KIND IS WITHIN THE COURT'S POWER IF REQUIRED
TO ASSURE THESE PETITIONERS THAT THEIR CONSTITUTIONAL RIGHTS WILL NO
LONGER BE DENIED THEM.  THE TIME FOR MERE "DELIBERATE SPEED" HAS RUN
OUT, AND THAT PHRASE CAN NO LONGER JUSTIFY DENYING THESE PRINCE EDWARD
COUNTY SCHOOL CHILDREN THEIR CONSTITUTIONAL RIGHTS TO AN EDUCATION
EQUAL TO THAT AFFORDED BY THE PUBLIC SCHOOLS IN THE OTHER PARTS OF
VIRGINIA. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, THE JUDGMENT OF THE
DISTRICT COURT IS AFFIRMED, AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS TO ENTER A DECREE WHICH WILL GUARANTEE THAT THESE
PETITIONERS WILL GET THE KIND OF EDUCATION THAT IS GIVEN IN THE STATE'S
PUBLIC SCHOOLS.  AND, IF IT BECOMES NECESSARY TO ADD NEW PARTIES TO
ACCOMPLISH THIS END, THE DISTRICT COURT IS FREE TO DO SO. IT IS SO
ORDERED. 

FN1  VIRGINIA TUITION GRANTS ORIGINATED IN 1930 AS AID TO CHILDREN
WHO HAD LOST THEIR FATHERS IN WORLD WAR I. THE PROGRAM WAS EXPANDED
UNTIL THE SUPREME COURT OF APPEALS OF VIRGINIA HELD THAT GIVING GRANTS
TO CHILDREN ATTENDING PRIVATE SCHOOLS VIOLATED THE VIRGINIA
CONSTITUTION.  ALMOND V. DAY, 197 VA. 419, 89 S.E.2D 851 (1955).  IT
WAS THEN THAT SECTION 141 WAS AMENDED. 

FN2  VA. CODE, SEC 22-188.3 ET SEQ.; SEC 51-111.38:1. 

FN3  ACTS, 1959 EX. SESS., C. 53. 

FN4  VA. CODE, SECS 22-251 TO 22-275. 

FN5  VA. CODE, SECS 22-275.1 TO 22-275.25. 

FN6  THE BOARD'S PUBLIC EXPLANATION OF ITS JUNE 3, 1959, REFUSAL TO
APPROPRIATE MONEY OR LEVY TAXES TO CARRY ON THE COUNTY'S PUBLIC SCHOOL
SYSTEM WAS: 

"THE SCHOOL BOARD OF THIS COUNTY IS CONFRONTED WITH A COURT DECREE
WHICH REQUIRES THE ADMISSION OF WHITE AND COLORED CHILDREN TO ALL THE
SCHOOLS OF THE COUNTY WITHOUT REGARD TO RACE OR COLOR.  KNOWING THE
PEOPLE OF THIS COUNTY AS WE DO, WE KNOW THAT IT IS NOT POSSIBLE TO
OPERATE THE SCHOOLS OF THIS COUNTY WITHIN THE TERMS OF THAT PRINCIPLE
AND, AT THE SAME TIME, MAINTAIN AN ATMOSPHERE CONDUCIVE TO THE
EDUCATIONAL BENEFIT OF OUR PEOPLE." 

FN7  VA. CODE, SECS 22-115.29 TO 22-115.35. 

FN8  ON THE QUESTION OF THE VALIDITY OF STATE TUITION GRANTS, THE
COURT HELD THAT, AS A MATTER OF STATE LAW, SUCH GRANTS WERE NOT MEANT
TO BE GIVEN IN LOCALITIES WITHOUT PUBLIC SCHOOLS; THEREFORE, THE COURT
ENJOINED THE COUNTY FROM PROCESSING APPLICATIONS FOR STATE GRANTS SO
LONG AS PUBLIC SCHOOLS REMAINED CLOSED.  198 F. SUPP., AT 504. 

FN9  THE SUPREME COURT OF APPEALS OF VIRGINIA HAD, IN A MANDAMUS
PROCEEDING INSTITUTED BY PETITIONERS, HELD THAT THE STATE CONSTITUTION
AND STATUTES DID NOT IMPOSE UPON THE COUNTY BOARD OF SUPERVISORS ANY
MANDATORY DUTY TO LEVY TAXES AND APPROPRIATE MONEY TO SUPPORT FREE
PUBLIC SCHOOLS.  GRIFFIN V. BOARD OF SUPERVISORS OF PRINCE EDWARD
COUNTY - 203 VA. 321, 124 S.E.2D 227 (1962). 

FN10  IN THE MEANTIME, THE SUPREME COURT OF APPEALS OF VIRGINIA HAD
HELD THAT THE VIRGINIA CONSTITUTION DID NOT COMPEL THE STATE TO REOPEN
PUBLIC SCHOOLS IN PRINCE EDWARD COUNTY.  COUNTY SCHOOL BOARD OF PRINCE
EDWARD COUNTY V. GRIFFIN, 204 VA. 650, 133 S.E.2D 565 (1963). 

FN11  "UPON MOTION OF A PARTY THE COURT MAY, UPON REASONABLE NOTICE
AND UPON SUCH TERMS AS ARE JUST, PERMIT HIM TO SERVE A SUPPLEMENTAL
PLEADING SETTING FORTH TRANSACTIONS OR OCCURRENCES OR EVENTS WHICH HAVE
HAPPENED SINCE THE DATE OF THE PLEADING SOUGHT TO BE SUPPLEMENTED." 
FED. RULES CIV. PROC. 15(D).    FN12  "BUT IT SHOULD GO WITHOUT SAYING
THAT THE VITALITY OF THESE CONSTITUTIONAL PRINCIPLES CANNOT BE ALLOWED
TO YIELD SIMPLY BECAUSE OF DISAGREEMENT WITH THEM."  BROWN V. BOARD OF
EDUCATION, 349 U.S. 294, 300 (1955). 

FN13  THE COUNTY HAS, SINCE THE TIME OF THE DISTRICT COURT'S DECREE,
REPEALED ITS TAX CREDIT ORDINANCE. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISAGREE WITH THE HOLDING
THAT THE FEDERAL COURTS ARE EMPOWERED TO ORDER THE REOPENING OF THE
PUBLIC SCHOOLS IN PRINCE EDWARD COUNTY, BUT OTHERWISE JOIN IN THE
COURT'S OPINION. 
..END :















MASSACHUSETTS TRUSTEES OF EASTERN GAS & FUEL ASSOCIATES V. UNITED STATES
377 U.S. 235 


NO. 137.  ARGUED FEBRUARY 24, 1964.  - DECIDED MAY 25, 1964.  - 312 F.2D
214, AFFIRMED. 


PETITIONERS CHARTERED SHIPS FROM THE MARITIME COMMISSION UNDER A
CONTRACT PROVIDING FOR PAYMENT WHICH INCLUDED A SHARE OF EXCESS PROFITS
UNDER A SLIDING SCALE OF 50 TO 90 PERCENT.  SECTION 5(B) OF THE
MERCHANT SHIP SALES ACT OF 1946 DIRECTED THE COMMISSION TO FIX CHARTER
HIRE AT RATES WHICH "SHALL NOT BE LESS THAN 15 PER CENTUM PER ANNUM OF
THE STATUTORY SALES PRICE," AND SHALL BE CONSISTENT WITH THE ACT'S
POLICY TO SELL, RATHER THAN CHARTER, SHIPS TO PRIVATE OWNERS.  THE
PROVISIONS OF SEC 709(A) OF THE MERCHANT MARINE ACT, 1936, WHICH WERE
MADE APPLICABLE TO CHARTERS UNDER THE 1946 ACT BY SEC 5(C) OF THE
LATTER STATUTE, STIPULATED THAT EVERY CHARTER SHALL PROVIDE THAT
"WHENEVER, AT THE END OF ANY CALENDAR YEAR  ...  THE CUMULATIVE NET
VOYAGE PROFITS  ...  SHALL EXCEED 10 PER CENTUM PER ANNUM ON THE
CHARTERER'S CAPITAL NECESSARILY EMPLOYED IN THE BUSINESS OF SUCH
CHARTERED VESSELS, THE CHARTERER SHALL PAY OVER TO THE COMMISSION, AS
ADDITIONAL CHARTER HIRE, ONE-HALF OF SUCH CUMULATIVE NET VOYAGE PROFIT
IN EXCESS OF 10 PER CENTUM PER ANNUM  ...  ."  PURSUANT TO A CHARTER
CLAUSE PERMITTING TERMINATION OF THE CONTRACT, THE COMMISSION NOTIFIED
PETITIONERS OF ITS INTENTION TO CANCEL THE CHARTER, BUT ADVISED THAT
THE VESSELS COULD CONTINUE TO BE USED UNDER NEW TERMS, TO WHICH
PETITIONERS AGREED, PROVIDING THAT EXCESS PROFITS WOULD BE COMPUTED FOR
EACH VOYAGE SEPARATELY AFTER SEPTEMBER 1, 1947.  PETITIONERS'
CONTENTIONS THAT THE COMMISSION WAS LIMITED UNDER SEC 709(A) TO 50
PERCENT OF THE EXCESS PROFITS AND THAT IT EXCEEDED ITS AUTHORITY BY
DIVIDING THE CALENDAR YEAR 1947 INTO SEPARATE PERIODS THROUGH THE
THREAT OF CANCELLATION WERE REJECTED BY THE LOWER COURTS.  HELD: 

1.  THE COMMISSION HAD AUTHORITY UNDER SEC 5(B) OF THE MERCHANT SHIP
SALES ACT OF 1946 TO UTILIZE A SLIDING SCALE OF EXCESS PROFITS.  PP.
241-250. 

(A)  THE 50 PERCENT PROVISIONS IN SEC 709(A) OF THE MERCHANT MARINE
ACT, 1936, ESTABLISHED, IN THE CONTEXT OF THE 1946 ACT, A MINIMUM BUT
NOT A MAXIMUM RATE.  PP. 243-245. 

(B)  THE USE OF A SLIDING SCALE WAS AUTHORIZED BY SEC 5(B) AND THE
FAILURE OF THE COMMISSION TO INDICATE THE SPECIFIC SOURCE OF ITS
AUTHORITY HAD NO LEGAL SIGNIFICANCE.  PP. 245-248. 

2.  THERE WAS NO LIMITATION OF THE COMMISSION'S POWER TO TERMINATE
THE EXISTING CHARTER.  PP. 250-251. 

(A)  THE PROVISIONS IN SEC 709(A) CALLING FOR COMPUTATION OF
ADDITIONAL CHARTER HIRE "AT THE END OF ANY CALENDAR YEAR" DID NOT
IMPOSE SUCH A RESTRICTION.  PP. 250-251. 

(B)  NOTIFICATION OF TERMINATION WAS NOT A MERE THREAT FOR AN
IMPROPER PURPOSE; THE COMMISSION COULD TERMINATE ALL EXISTING CHARTERS
AND THEN RECHARTER THE VESSELS TO ACCOMPLISH ITS GOALS.  P. 251. 

MASSACHUSETTS TRUSTEES OF EASTERN GAS & FUEL ASSOCIATES V. UNITED
STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE CLAIM THAT THE MARITIME COMMISSION EXCEEDED
ITS STATUTORY AUTHORITY UNDER SEC 5 OF THE MERCHANT SHIP SALES ACT OF
1946, 60 STAT. 43, AS AMENDED, 50 U.S.C. APP.  SEC 1738, BY:

(1) INCLUDING IN ITS CONTRACT WITH PETITIONERS  (FN1)  FOR THE
BAREBOAT CHARTER OF SHIPS A SLIDING SCALE THAT REQUIRED PAYMENT TO THE
GOVERNMENT OF MORE THAN 50% OF CERTAIN EXCESS PROFITS AND: 

(2) USING THE THREAT OF TERMINATION OF THE CHARTER ARRANGEMENT TO
COMPEL AGREEMENT TO DIVIDE THE CALENDAR YEAR 1947 INTO SEPARATE PERIODS
FOR THE PURPOSE OF COMPUTING SUCH PROFITS. 

BECAUSE A CONSIDERABLE NUMBER OF SUITS ARE PENDING IN THE LOWER
COURTS WHICH WILL TURN ON RESOLUTION OF THESE ISSUES, AND BECAUSE OF A
CONFLICT AMONG THE CIRCUITS AS TO THE FIRST ISSUE, (FN2)  WE BROUGHT
THE CASE HERE.  375 U.S. 809.  FOR REASONS TO FOLLOW, WE AFFIRM THE
JUDGMENT BELOW UPHOLDING THE POWER OF THE COMMISSION TO ACT AS IT DID. 

                                              I. 

THE MERCHANT MARINE ACT, 1936, 49 STAT. 1985, AS AMENDED, 46 U.S.C.
SECS 1101-1294, PROVIDED FOR THE CHARTER OF GOVERNMENT VESSELS BY THE
MARITIME COMMISSION TO PRIVATE ENTERPRISE.  SECTION 709(A) OF THAT ACT,
49 STAT. 2010, INCORPORATED BY REFERENCE IN THE 1946 ACT, SEC 5(C), 60
STAT. 43, PROVIDED: 

"EVERY CHARTER MADE BY THE COMMISSION PURSUANT TO THE PROVISIONS OF
THIS TITLE SHALL PROVIDE THAT WHENEVER, AT THE END OF ANY CALENDAR YEAR
SUBSEQUENT TO THE EXECUTION OF SUCH CHARTER, THE CUMULATIVE NET VOYAGE
PROFITS (AFTER PAYMENT OF THE CHARTER HIRE RESERVED IN THE CHARTER AND
PAYMENT OF THE CHARTERER'S FAIR AND REASONABLE OVERHEAD EXPENSES
APPLICABLE TO OPERATION OF THE CHARTERED VESSELS) SHALL EXCEED 10 PER
CENTUM PER ANNUM ON THE CHARTERER'S CAPITAL NECESSARILY EMPLOYED IN THE
BUSINESS OF SUCH CHARTERED VESSELS, THE CHARTERER SHALL PAY OVER TO THE
COMMISSION, AS ADDITIONAL CHARTER HIRE, ONE-HALF OF SUCH CUMULATIVE NET
VOYAGE PROFIT IN EXCESS OF 10 PER CENTUM PER ANNUM: PROVIDED, THAT THE
CUMULATIVE NET PROFIT SO ACCOUNTED FOR SHALL NOT BE INCLUDED IN ANY
CALCULATION OF CUMULATIVE NET PROFIT IN SUBSEQUENT YEARS." 

DURING WORLD WAR II, OPERATIONS OF THE PRIVATE MERCHANT MARINE WERE
DISRUPTED AND ITS FLEETS REDUCED BY LOSSES AND REQUISITION.  MEANWHILE
MANY VESSELS WERE CONSTRUCTED FOR GOVERNMENT OPERATIONS.  CONGRESS BY
MEANS OF THE MERCHANT SHIP SALES ACT OF 1946, SUPRA, SOUGHT TO ENSURE
POSTWAR REHABILITATION OF THE PRIVATE MERCHANT MARINE BY HAVING THE
MARITIME COMMISSION SELL OR CHARTER SURPLUS WAR-BUILT GOVERNMENT
VESSELS.  THE COMMISSION WAS INSTRUCTED "SO FAR AS PRACTICABLE AND
CONSISTENT WITH THE POLICIES OF THIS ACT, TO GIVE PREFERENCE TO  ...
APPLICANTS TO PURCHASE" OVER APPLICANTS TO CHARTER.  (FN3)  SECTION
5(B), 60 STAT. 43, OF THE ACT SET OUT STANDARDS FOR THE COMMISSION TO
FOLLOW IN CHARTERING VESSELS: 

"THE CHARTER HIRE FOR ANY VESSEL CHARTERED UNDER THE PROVISIONS OF
THIS SECTION SHALL BE FIXED BY THE COMMISSION AT SUCH RATE AS THE
COMMISSION DETERMINES TO BE CONSISTENT WITH THE POLICIES OF THIS ACT,
BUT, EXCEPT UPON THE AFFIRMATIVE VOTE OF NOT LESS THAN FOUR MEMBERS OF
THE COMMISSION, SUCH RATE SHALL NOT BE LESS THAN 15 PER CENTUM PER
ANNUM OF THE STATUTORY SALES PRICE (COMPUTED AS OF THE DATE OF CHARTER)
...  .  RATES OF CHARTER HIRE FIXED BY THE COMMISSION ON ANY WAR-BUILT
VESSEL WHICH DIFFER FROM THE RATE SPECIFIED IN THIS SUBSECTION SHALL
NOT BE LESS THAN THE PREVAILING WORLD MARKET CHARTER RATES FOR SIMILAR
VESSELS FOR SIMILAR USE AS DETERMINED BY THE COMMISSION." 

AS ALREADY INDICATED, SEC 5(C) MADE THE PROVISIONS OF SEC 709(A) OF
THE MERCHANT MARINE ACT APPLICABLE TO CHARTERS UNDER THE 1946 ACT. 

PRIOR TO THE COMMISSION'S EXERCISING OF ITS AUTHORITY UNDER THE 1946
ACT, THE WAR SHIPPING ADMINISTRATION CHARTERED SHIPS TO PRIVATE
INTERESTS ON AN INTERIM BASIS; IT FOLLOWED THE LINES OF THE 1946 ACT,
SPECIFYING A "BASIC CHARTER HIRE" WHICH EQUALED 15% PER ANNUM OF THE
STATUTORY SALES PRICE AND AN "ADDITIONAL CHARTER HIRE" OF ONE-HALF OF
ANY NET PROFITS IN EXCESS OF A 10% ANNUAL RETURN ON THE CHARTERER'S
CAPITAL EMPLOYED IN THE OPERATION OF THE CHARTERED VESSELS.  DURING
THIS PERIOD A SPECIAL CHARTER COMMITTEE CONSIDERED THE BEST WAY TO
IMPLEMENT THE PROVISIONS OF THE 1946 ACT.  EXISTING RENTALS WERE
BELIEVED TO BE TOO LOW AND HIGHER RENTALS WERE THOUGHT NECESSARY TO
PROMOTE THE STATUTORY POLICY OF ENCOURAGING SALES RATHER THAN
CHARTERS.  A MAJORITY OF THE COMMITTEE PREFERRED A HIGHER PROFIT
SHARING RATE THAN THAT PROVIDED IN SEC 709(A) TO ANY ADDITIONAL FIRM
RENTAL, SINCE THE FORMER WOULD PERMIT BOTH THE COMMISSION AND
CHARTERERS TO ADAPT TO A FLUCTUATING WORLD MARKET, WITHOUT IMPOSING A
GREATER RISK OF LOSS ON THE CHARTERERS.  THE MARITIME COMMISSION
ADOPTED THIS BASIC SUGGESTION AND DECIDED TO CHARGE, IN ADDITION TO THE
FIRM RENTAL OF 15% OF THE SALES PRICE, 50% OF THE AVERAGE NET VOYAGE
PROFITS IN EXCESS OF 10% OF THE CHARTERER'S CAPITAL NECESSARILY
EMPLOYED UP TO THE FIRST $100 OF PROFITS PER DAY, 75% OF THE NEXT $200
PER DAY, AND 90% OF SUCH PROFITS ABOVE $300 PER DAY. 

THE COMMISSION ADOPTED A STANDARD SHIP SALES ACT CHARTER
("SHIPSALESDEMISE 303") INCORPORATING THESE PROVISIONS, AND EASTERN
CHARTERED 10 VESSELS UNDER SUCH A CONTRACT DATED OCTOBER 1, 1946. 
MARKET CONDITIONS ALLOWED HIGH PROFITS TO BE EARNED IN THE FIRST EIGHT
MONTHS OF 1947.  THE COMMISSION DECIDED TO TERMINATE EXISTING CHARTERS,
AS IT WAS PRIVILEGED TO DO UNDER THE CONTRACT ON 15 DAYS' NOTICE, BUT
AGREED NOT TO TERMINATE IF A CHARTERER ACCEPTED AN ADDENDUM TO ITS
CONTRACT PROVIDING, AMONG OTHER THINGS, FOR A SEPARATE CALCULATION OF
PROFIT-SHARING RENTALS FOR THE PERIOD COMMENCING SEPTEMBER 1, 1947. 
EASTERN SIGNED SUCH AN ADDENDUM AND WAS NOT ABLE, AS A RESULT, TO
OFFSET LOSSES INCURRED IN THE LATTER PART OF 1947 AGAINST THE EXCESS
PROFITS EARNED BEFORE SEPTEMBER 1. 

EASTERN DID NOT ATTEMPT TO LITIGATE ITS RIGHTS UNDER THE 1946 ACT
UNTIL IT HAD COMPLETED ALL THE PAYMENTS REQUIRED BY THE CHARTER
AGREEMENT.  IN 1955 IT FILED THIS IN PERSONAM LIBEL FOR RECOVERY OF
MONEY PAID PURSUANT TO THE PROFIT-SHARING PROVISIONS AND THE 1947
"FOREIGN TRADE ADDENDUM."  IT ASSERTED THAT SEC 709(A) SETS A MAXIMUM
AS WELL AS A MINIMUM RATE OF PROFIT SHARING AND PRECLUDED THE
COMMISSION FROM ALTERING THAT RATE UNDER SEC 5(B).  IT CLAIMED FURTHER
THAT, EVEN IF SUCH POWER EXISTED, THE COMMISSION'S APPARENT RELIANCE ON
SEC 709(A) RATHER THAN SEC 5(B) RENDERS THESE CHARTER PROVISIONS
NUGATORY.  FINALLY, IT ARGUED THAT THE 1947 ADDENDUM CONFLICTED WITH
THE STATUTORY MANDATE OF SEC 709(A) FOR CALENDAR YEAR ACCOUNTING OF
STATUTORY PROFITS, AND THAT THE COMMISSION ABUSED ITS TERMINATION
PRIVILEGE BY THREATENING TO TERMINATE THE CHARTER AGREEMENTS OF THOSE
REFUSING TO ACCEPT THE SPLIT-YEAR PROFIT-SHARING ARRANGEMENT.  ALL OF
THESE CONTENTIONS WERE REJECTED BY THE LOWER COURT, THE COURT OF
APPEALS AFFIRMING THE DISTRICT COURT, 202 F. SUPP. 297; 210 F. SUPP.
822, IN A THOROUGH OPINION, 312 F.2D 214. 

PRELIMINARILY WE OBSERVE THAT IN THE VIEW WE TAKE OF THAT CASE WE
FIND IT UNNECESSARY TO CONSIDER THE GOVERNMENT'S ALTERNATIVE GROUND FOR
AFFIRMANCE:  THAT THE DOCTRINE OF WAIVER PRECLUDES EASTERN FROM
CHALLENGING THE TERMS OF ITS CHARTER AGREEMENT BECAUSE ONCE HAVING
SIGNED THE AGREEMENT AND BENEFITED FROM THE CHARTER, EASTERN CANNOT
SEEK TO OVERTURN PROVISIONS OF THE CONTRACT THAT IT REGARDS AS
UNFAVORABLE.  (FN4)

                                             II. 

THE BASIC STATUTORY QUESTION IS WHETHER THE COMMISSION, IN LIGHT OF
SEC 709(A), HAD AUTHORITY UNDER SEC 5(B) TO IMPOSE THE SLIDING SCALE OF
ADDITIONAL HIRE, AND, IF SO, WHETHER ITS FAILURE TO ARTICULATE THE
PARTICULAR STATUTORY BASIS FOR ITS ACTION VITIATES THE VALIDITY OF THE
PROFIT-SHARING TERMS OF THE RATE SET.  WE APPROACH THIS PROBLEM WITH
THREE GENERAL INTERPRETATIVE GUIDES, ALL OF WHICH POINT IN THE
GOVERNMENT'S FAVOR.  SOME WEIGHT IS DUE TO THE CONSISTENT
INTERPRETATION OF THE MARITIME COMMISSION, THE AGENCY ENTRUSTED WITH
ADMINISTRATION OF THE STATUTE.  SEE, E.G., UNITED STATES V. ZUCCA, 351
U.S. 91, 96; KERN RIVER CO. V. UNITED STATES, 257 U.S. 147, 153-154. 
THE SUCCESSIVE EXTENSIONS BY CONGRESS OF THE COMMISSION'S AUTHORITY TO
CHARTER VESSELS,  (FN5)  IN THE FACE OF THE COMMISSION'S SLIDING-SCALE
PRACTICE, ARE CERTAINLY NOT CONTROLLING, PARTICULARLY SINCE IT DOES NOT
APPEAR THAT CONGRESS EVER ADVERTENTLY ADDRESSED ITSELF TO THE CLAIM OF
INVALIDITY OF THE SLIDING SCALE; THEY DO, HOWEVER, STRENGTHEN TO SOME
EXTENT THE COMMISSION'S CONCLUSIONS REGARDING ITS CHARTERING POWERS. 
IN 1947, FOLLOWING SUBCOMMITTEE HEARINGS,  (FN6)  THE HOUSE COMMITTEE
ON MERCHANT MARINE AND FISHERIES, H.R. REP.  NO. 725, 80TH CONG., 1ST
SESS. (1947), RECOMMENDED AN EXTENSION, SUBSEQUENTLY ENACTED, 61 STAT.
190, 191, OF THE COMMISSION'S CHARTERING AUTHORITY "WITH THE
UNDERSTANDING THAT THE BASIC RATES FOR THE CHARTER OF DRY-CARGO VESSELS
AND RECAPTURE RATES WILL BE IMMEDIATELY INCREASED, THUS ENCOURAGING THE
PURCHASE RATHER THAN CHARTER OF THESE SHIPS."  P. 2.  CONGRESSIONAL
REPORTS PRIOR TO ANOTHER EXTENSION, H.R. REP. NO. 60, 81ST CONG., 1ST
SESS., 2 (1949); S. REP. NO. 55, 81ST CONG., 1ST SESS., 2 (1949),
STATED:  "IT IS CONTEMPLATED THAT THE MARITIME COMMISSION WILL CONTINUE
TO SELL, CHARTER, AND OPERATE SHIPS IN ACCORDANCE WITH EXISTING
PROCEDURES AND WITHOUT, ACCORDING TO THE HOUSE REPORT, ANY CHANGE IN
ITS PRESENT POLICY."  (THE SENATE REPORT READS "ANY CHANGES IN POLICIES
NOW EFFECTIVE.") 

FURTHER, IN LIGHT OF THE CONGRESSIONAL POLICY TO ENCOURAGE THE SALE
OF SHIPS, CONTAINED IN SEC 7(A) OF THE 1946 ACT, SUPRA, THERE IS AN
INITIAL PRESUMPTION THAT CONGRESS INTENDED THAT THE COMMISSION SHOULD
HAVE POWER TO ESTABLISH CHARTERING TERMS COMMENSURATE WITH MAKING MORE
ATTRACTIVE PURCHASE, INSTEAD OF CHARTER, OF GOVERNMENT VESSELS BY
PRIVATE SHIPOWNERS.  NEEDLESS TO SAY, THESE "INTERPRETATIVE AIDS,"
NEITHER SINGLY NOR IN CONJUNCTION, COULD LEAD TO AN AFFIRMANCE HERE IF
IT WERE CLEAR THAT THE COMMISSION'S ACTION CONTRADICTED THE
REQUIREMENTS OF THE MERCHANT SHIP SALES ACT OF 1946.  HOWEVER, THEY ARE
CONSISTENT WITH, AND LEND SUPPORT TO, WHAT WE BELIEVE TO BE THE MOST
SENSIBLE VIEW OF THE STATUTORY FRAMEWORK. 

ACCORDING TO SEC 709(A) OF THE 1936 ACT, AS ADOPTED BY THE 1946
STATUTE: 

"THE CHARTERER SHALL PAY OVER TO THE COMMISSION, AS ADDITIONAL
CHARTER HIRE, ONE-HALF OF SUCH CUMULATIVE NET VOYAGE PROFIT IN EXCESS
OF 10 PER CENTUM PER ANNUM  ...  ." 


"THE CHARTER HIRE  ...  SHALL BE FIXED BY THE COMMISSION AT SUCH RATE
AS THE COMMISSION DETERMINES TO BE CONSISTENT WITH THE POLICIES OF THIS
ACT, BUT,  ...  SUCH RATE SHALL NOT BE LESS THAN 15 PER CENTUM PER
ANNUM OF THE STATUTORY SALES PRICE  ...  ." 

EASTERN MAKES THE CONTENTION THAT THE LANGUAGE OF SEC 5(B) ITSELF
LIMITS THE COMMISSION'S POWER UNDER THAT SECTION TO A FIXED ANNUAL
CHARTER RATE.  IT ARGUES THAT A PROFIT-SHARING ARRANGEMENT IS NOT A
"RATE" OF CHARTER HIRE IN THE NORMAL SENSE NOR IS IT "FIXED."  THE
SHORT ANSWER IS THAT IT IS PERFECTLY REASONABLE TO SPEAK OF A "RATE"
WHICH IS BASED ON PERCENTAGE OF PROFITS, AND THERE IS NO PROBLEM IN
"FIXING" A CONTINGENT RATE.  CERTAINLY THE REFERENCE TO THE MINIMUM
RATE OF 15% (SUBJECT TO AN EXCEPTION NOT RELEVANT HERE) OF THE
STATUTORY SALES PRICE IN NO WAY REFLECTS AN INTENT TO PRECLUDE THE
COMMISSION FROM DEVELOPING OTHER TYPES OF RATE PATTERNS.  WE FIND
NOTHING IN SEC 5(B) ITSELF TO JUSTIFY STRAIT-JACKETING, BY PROSCRIBING
ANY APPROACH NOT BASED ON A PERCENTAGE OF THE SALES PRICE, THE
COMMISSION'S DEVELOPMENT OF RATE PATTERNS BEST SERVING THE POLICIES OF
THE ACT. 

THE POSITION THAT SEC 709(A) IS THE EXCLUSIVE PROFIT-SHARING
PROVISION, THAT IT PROHIBITS WHAT MIGHT OTHERWISE BE SUSTAINED AS A
PROPER EXERCISE OF POWER UNDER SEC 5(B), IS SOMEWHAT MORE ARGUABLE. 
EASTERN ASSERTS THAT SEC 709(A) WAS WRITTEN AS A MAXIMUM AS WELL AS
MINIMUM STANDARD FOR THE COMMISSION'S SHARE OF EXCESS PROFITS AND THAT
ITS IMPORT WAS NOT ALTERED BY ITS ADOPTION IN THE 1946 ACT. 
SIGNIFICANCE IS PLACED ON CONGRESS' USE OF THE WORD "SHALL," RATHER
THAN A PHRASE SUCH AS "NOT LESS THAN," IN FIXING THE CHARTERER'S
OBLIGATION TO PAY 50% OF ITS EXCESS PROFITS. 

HOWEVER, WHEN SEC 709(A) WAS PASSED, RATES OF CHARTER HIRE WERE
DETERMINED IN MOST SITUATIONS, UNDER SEC 707(A), 49 STAT. 2009, BY
COMPETITIVE BIDDING IN INDIVIDUAL CASES.  (FN7)  SINCE THE FIRM RENTAL
OFFERED COULD AFFORD THE ONLY BASIS FOR ASSESSING "THE HIGHEST MONTHLY
CHARTER HIRE," INDIVIDUAL BIDDERS DID NOT PROPOSE PROFIT-SHARING
ARRANGEMENTS.  UNDER SUCH A SYSTEM, THE PRIMARY RELIANCE AGAINST RATES
UNREASONABLY FAVORABLE TO CHARTERERS WAS THE BIDDING SYSTEM.  IN THAT
CONTEXT, IT COULD PLAUSIBLY BE URGED THAT THE COMMISSION HAD NO
AUTHORITY TO RAISE ITS SHARE OF EXCESS PROFITS.  INDEED, THE GOVERNMENT
DOES NOT ARGUE THAT AT THAT TIME, OR AFTER THE 1946 ACT, SEC 709(A) EX
PROPRIO VIGORE CONFERRED POWER ON THE COMMISSION TO RAISE THE RATES
BEYOND THE PRESCRIBED 50%.  THE RELEVANT QUESTION, THEREFORE, IS
WHETHER AS CARRIED INTO THE 1946 ACT THE SECTION SET A MAXIMUM AS WELL
AS MINIMUM RATE OF PROFIT SHARING FOR THE STATUTE AS A WHOLE.    FIRST,
IT MAY BE NOTED THAT "SHALL" PLAINLY DENOTES A MINIMUM; ONE CANNOT PAY
50% AND AT THE SAME TIME PAY LESS THAN 50%.  ON THE OTHER HAND, THE
WORD DOES NOT OF LINGUISTIC NECESSITY DENOTE A MAXIMUM; ONE CAN PAY 50%
AND ALSO PAY 25% MORE.  WHILE, IN RECOGNIZING THIS, WE DO NOT MEAN TO
SUGGEST THAT STANDING ALONE THE 50% STANDARD OF SEC 709(A) WOULD NOT BE
READ AS ESTABLISHING A MAXIMUM AS WELL AS A MINIMUM, IT IS SIGNIFICANT
THAT THE SECTION'S LANGUAGE IS NOT INCONSISTENT WITH A CONCLUSION THAT
HIGHER PERCENTAGES ARE PERMISSIBLE.  CONGRESS CANNOT BE EXPECTED ALWAYS
TO BE ABSOLUTELY PRECISE IN ITS STATUTORY FORMULATIONS.  WHEN IT BRINGS
FORWARD INTO A NEW ENACTMENT PROVISIONS DRAFTED IN A DIFFERENT
STATUTORY CONTEXT AND IN RESPONSE TO OTHER CIRCUMSTANCES AND POLICIES,
THE LIKELIHOOD OF IMPRECISION IS INCREASED.  IN LIGHT OF THE GREAT
BREADTH OF DISCRETION APPARENTLY GIVEN TO THE COMMISSION UNDER SEC 5(B)
AND THE EXPRESSED CONCERN OF CONGRESS THAT CHARTER RATES NOT BE TOO LOW
TO DISCOURAGE SALES, WE SHOULD BE VERY SLOW TO FETTER THE FLEXIBILITY
OF THE COMMISSION TO IMPLEMENT, IN THE MOST EFFECTIVE WAY, THE POLICIES
OF THE ACT.  VIEWING THE 1946 ACT AS AN INTEGRATED WHOLE, WE REFUSE TO
INHIBIT THE COMMISSION UNDER SEC 5(B) BY RESORT TO AN INTERPRETATION OF
SEC 709(A) WHICH COULD BE CHARACTERIZED ONLY AS ARID LITERALISM. 
(FN8) 

WE CONCLUDE, THEREFORE, THAT THE COMMISSION HAD THE POWER UNDER SEC
5(B) TO IMPOSE THE SLIDING SCALE AND THAT SEC 709(A) DOES NOT NEGATE
THAT AUTHORITY.  IN PASSING, IT MAY BE NOTED THAT IN ADDITION TO THE
COURTS BELOW, FOUR OTHER LOWER COURTS HAVE REACHED OR ASSUMED THE SAME
CONCLUSION.  SEE DICHMAN, WRIGHT & PUGH, INC., V. UNITED STATES, 144 F.
SUPP. 922, 926; UNITED STATES V. EAST HARBOR TRADING CORP., 190 F.
SUPP. 245, 249; AMERICAN MAIL LINE, LTD., V. UNITED STATES, 213 F.
SUPP. 152, 163; UNITED STATES V. EASTPORT STEAMSHIP CORP., 216 F. SUPP.
649, 653-654.  BUT SEE AMERICAN PRESIDENT LINES, LTD., V. UNITED
STATES, 224 F. SUPP. 187, 190-191.  SEE ALSO AMERICAN EXPORT LINES,
INC., V. UNITED STATES, 153 CT. CL. 201, 208-209, 290 F.2D 925, 930. 

WE NEXT TURN TO THE QUESTION WHETHER SEC 5(B) SUFFICES TO SUPPORT THE
SLIDING SCALE FOR PROFIT-SHARING RENTALS ADOPTED BY THE COMMISSION, IN
THE FACE OF THE ASSERTION THAT THE COMMISSION DID NOT PURPORT TO ACT
UNDER THAT SECTION BUT APPARENTLY RELIED ON SEC 709 ALONE.  EASTERN
NOTES THAT THE ADDED OBLIGATION RESPECTING EXCESS PROFITS WAS IMPOSED
AS A PART OF "ADDITIONAL CHARTER HIRE" UNDER CLAUSE 13 OF THE CHARTER
AGREEMENT ("FORM 303"), WHICH INCLUDED THE 50% CHARGE ON EXCESS PROFITS
LESS THAN $100 PER DAY.  UNDER "FORM 203," THE STANDARD CHARTER
EMPLOYED PENDING IMPLEMENTATION OF THE 1946 ACT, THE UNEMBELLISHED 50%
RATE OF SEC 709(A) HAD ALSO BEEN CHARACTERIZED AS "ADDITIONAL CHARTER
HIRE" AND APPEARED IN CLAUSE 13 OF THAT FORM.  IN BOTH "FORM 203" AND
"FORM 303" PROVISION FOR THE "BASIC CHARTER HIRE" - THE RELEVANT
PERCENT OF THE SALES PRICE - WAS PROVIDED FOR IN CLAUSES E, C(1), AND
12.  EASTERN ACCORDINGLY CONCLUDES THAT THE COMMISSION EQUATED "BASIC
CHARTER HIRE" WITH HIRE UNDER SEC 5(B) AND "ADDITIONAL CHARTER HIRE"
WITH THAT IMPOSED UNDER SEC 709(A).  CITING A NUMBER OF CASES HOLDING
THAT GROUNDS NOT RELIED ON BY A GOVERNMENT AGENCY CANNOT BE INVOKED TO
VALIDATE AN EXERCISE OF ADMINISTRATIVE DISCRETION WHICH HAS IN FACT
BEEN BASED ON INSUFFICIENT GROUNDS OR REACHED WITHOUT REQUISITE
PROCEDURAL SAFEGUARDS, SEE, E.G., SECURITIES & EXCHANGE COMM'N V.
CHENERY CORP., 332 U.S. 194, 196; BELL V. UNITED STATES, 366 U.S. 393,
412-413; BURLINGTON TRUCK LINES, INC., V. UNITED STATES, 371 U.S. 156,
167-168, EASTERN ASSERTS THAT THE FAILURE OF THE COMMISSION TO INDICATE
THE STATUTORY BASIS OF ITS SLIDING SCALE FOR PROFIT SHARING RENDERS
THAT ASPECT OF ITS CHARTER AGREEMENTS VOID.  IT IS NOT ENTIRELY CLEAR
WHAT THE COMMISSION BELIEVED THE SOURCE OF ITS POWER TO BE AND IT IS AT
LEAST ARGUABLE THAT INCLUSION OF THE SLIDING RATES WITHIN THE
ADDITIONAL HIRE CLAUSE WAS NOT NECESSARILY INCONSISTENT WITH A
SUPPOSITION OF AUTHORITY UNDER SEC 5(B).  WE FIND IT UNNECESSARY,
HOWEVER, TO DEAL WITH THIS QUESTION SINCE WE AGREE WITH THE COURTS
BELOW THAT THE INTENT OF THE COMMISSION IN THIS REGARD IS IRRELEVANT. 

THE DISTRICT COURT DETERMINED THAT THERE IS NOT "THE SLIGHTEST GROUND
FOR ASSUMING THAT IF THE COMMISSION HAD BEEN APPRIZED OF THE CORRECT
SOURCE OF ITS AUTHORITY, THE COMMISSION OR THE OTHER PARTY WOULD HAVE
MADE A CONTRACT DIFFERENT IN SUBSTANCE, AS DISTINGUISHED FROM
WORDING."  202 F. SUPP. 297, 305.  EASTERN DOES NOT SERIOUSLY CHALLENGE
THIS DETERMINATION.  ALTHOUGH IT ALLEGES THAT THE COMMISSION HESITATED
TO ACT UNDER SEC 5(B) TO RAISE THE FIXED 15% RATE BECAUSE SUCH AN
INCREASE WOULD HAVE BEEN PASSED ON TO OTHER GOVERNMENT AGENCIES AS A
RESULT OF CONTRACTUAL PROVISIONS FOR SUBCHARTER, EASTERN DOES NOT
ASSERT THAT A CONTINGENT PROFIT-SHARING RATE OF MORE THAN 50% WOULD
LIKEWISE HAVE BEEN PASSED ON EVEN IF THE COMMISSION HAD EXPLICITLY
REFERRED TO SEC 5(B) AS ITS SOURCE OF AUTHORITY.  THE SUBCHARTER CLAUSE
APPEARING IN THE RECORD INDICATES THAT ONLY AN INCREASE IN THE 15%
FIXED RATE WOULD HAVE BEEN PASSED ON. 

NO DOUBT IS CAST ON THE CONCLUSION OF THE DISTRICT COURT BY ANYTHING
IN SEC 5(B) OR SEC 709(A).  SECTION 5(B) DOES NOT REQUIRE A HEARING OR
ANY PARTICULAR KIND OF PROCEDURE (EXCEPT WHEN THE RATE IS SET BELOW 15%
OF THE SALES PRICE).  SINCE SEC 709(A) DOES NOT ITSELF AUTHORIZE
DEVIATIONS FROM THE 50% RATE ON EXCESS PROFITS, THAT SECTION PROVIDES,
OF COURSE, NO CRITERIA FOR ASSESSING THE PROPRIETY OF ANY SUCH
DEVIATION.  SECTION 5(B) RATES ARE SUPPOSED TO BE FIXED "CONSISTENT
WITH THE POLICIES OF THIS ACT" AND (AT LEAST IF LOWER THAN 15% OF THE
STATUTORY SALES PRICE) ARE NOT TO BE SET AT LESS THAN THE PREVAILING
WORLD MARKET CHARTER RATES.  SINCE IT IS PLAIN THAT THE COMMISSION
INSTITUTED RATES IT BELIEVED TO BE CONSISTENT WITH THE POLICIES OF THE
1946 ACT, IT SEEMS PATENTLY CLEAR THAT ITS DETERMINATION WOULD HAVE IN
NO WAY VARIED HAD IT PAID PARTICULAR ATTENTION TO SEC 5(B) IN
ESTABLISHING THE SLIDING SCALE. 

IN LIGHT OF THESE FACTORS WE FIND INAPPOSITE HERE CASES REFUSING TO
VALIDATE AN EXERCISE OF ADMINISTRATIVE DISCRETION BECAUSE IT COULD HAVE
BEEN SUPPORTED BY PRINCIPLES OR FACTS NOT CONSIDERED, OR PROCEDURES NOT
UNDERTAKEN, BY THE RESPONSIBLE BODY.  THESE CASES ARE AIMED AT ASSURING
THAT INITIAL ADMINISTRATIVE DETERMINATIONS ARE MADE WITH RELEVANT
CRITERIA IN MIND AND IN A PROPER PROCEDURAL MANNER; WHEN A MISTAKE OF
THE ADMINISTRATIVE BODY IS ONE THAT CLEARLY HAD NO BEARING ON THE
PROCEDURE USED OR THE SUBSTANCE OF DECISION REACHED, AS IN THIS
INSTANCE (ASSUMING THERE WAS SUCH A MISTAKE), THE SOUGHT EXTENSION OF
THE CASES CITED WOULD NOT ADVANCE THE PURPOSE THEY WERE INTENDED TO
SERVE.  THE IMPOSITION OF THE SLIDING SCALE OF ADDITIONAL CHARTER HIRE
WAS AUTHORIZED BY SEC 5(B) AND THE COMMISSION'S FAILURE TO INDICATE
EXPLICITLY OR IMPLICITLY THAT THAT SECTION WAS THE SOURCE OF ITS POWER
IS WITHOUT LEGAL SIGNIFICANCE. 

EASTERN CLAIMS THAT IF THE SLIDING-SCALE CHARGE IS PROPER UNDER SEC
5(B), THE COMMISSION HAS NOT FOLLOWED THE STATUTORY SCHEME FOR
ACCOUNTING.  SECTION 709(A) PROVIDES FOR EQUAL DIVISION OF PROFITS
AFTER PAYMENT OF THE "CHARTER HIRE RESERVED IN THE CHARTER  ...  ." 
EASTERN EQUATES THIS LANGUAGE WITH THE "CHARTER HIRE  ...  FIXED BY THE
COMMISSION" UNDER SEC 5(B).  WITHOUT ATTEMPTING THE IMPOSSIBLE TASK OF
READING INTO THE CHARTER CONTRACT THE FOLLOWING METHOD OF ACCOUNTING,
EASTERN ARGUES THAT THIS PROCEDURE IS REQUIRED BY THE STATUTE: IN
ADDITION TO THE REQUIRED PERCENT OF THE STATUTORY SALES PRICE, THE
"CHARTER HIRE RESERVED IN THE CHARTER" INCLUDES ANY CHARGE ABOVE 50% OF
PROFITS; AFTER THESE CHARGES ARE COMPUTED, THE COMMISSION IS ENTITLED
TO 50% OF REMAINING EXCESS PROFITS.  HOW THIS METHOD WOULD WORK IS MOST
EASILY SEEN IF WE HYPOTHESIZE AN ATTEMPT BY THE COMMISSION TO ACQUIRE
100% OF ALL EXCESS PROFITS.  INSTEAD OF ACHIEVING THIS GOAL, THE
COMMISSION WOULD HAVE TO COMPUTE THE FIXED HIRE PLUS 50% OF THE PROFITS
(THE AMOUNT OF CHARGE ABOVE THE 50% SET BY SEC 709(A)).  THE COMMISSION
WOULD THEN RECEIVE 50% OF THE REMAINING PROFITS; AS A CONSEQUENCE THE
CHARTERER WOULD RETAIN 25% OF THE TOTAL EXCESS PROFITS.  THE EFFECT OF
THIS METHOD OF ACCOUNTING, THEREFORE, WOULD BE TO TURN SEC 709(A) INTO
A PROVISION LIMITING, UNDER PROFIT-SHARING ARRANGEMENTS EFFECTED
PURSUANT TO SEC 5(B), THE GOVERNMENT'S SHARE OF PROFITS OVER 10% OF
CAPITAL NECESSARILY EMPLOYED; THE MAXIMUM GOVERNMENT SHARE WOULD BE 75%
(INSTEAD OF THE 50% THAT WOULD RESULT IF SEC 709(A) WERE READ TO
PROHIBIT COMPLETELY ANY PROFIT-SHARING ARRANGEMENT UNDER SEC 5(B)). 

WE ARE NOT COMPELLED TO ACCEPT THIS ANOMALOUS RESULT.  IT IS NOT
NECESSARY TO READ THE REFERENCE IN SEC 709(A) TO "CHARTER HIRE RESERVED
IN THE CHARTER" AS SYNONYMOUS WITH "CHARTER HIRE  ...  FIXED BY THE
COMMISSION" IN SEC 5(B).  IT IS HIGHLY DOUBTFUL THAT THE DRAFTSMEN
INTENDED SUCH A RESULT, PARTICULARLY SINCE SEC 709(A) WAS BROUGHT
FORWARD WITHOUT ANY ATTEMPT TO SPELL OUT CAREFULLY ITS RELATIONSHIP TO
SEC 5(B).  A READING WHICH DOES GREATER JUSTICE TO THE WHOLE STATUTORY
FRAMEWORK IS TO LIMIT "CHARTER HIRE RESERVED IN THE CHARTER" TO ANY
FIRM RATHER THAN CONTINGENT HIRE, REGARDLESS OF WHETHER SEC 5(B) IS THE
SOURCE FOR IMPOSING THE HIRE.  EVEN IF EASTERN'S INTERPRETATION OF THE
LANGUAGE WERE ACCEPTABLE, HOWEVER, WE SEE NO REASON WHY THE COMMISSION
CANNOT REACH UNDER SEC 5(B) WHAT IT WOULD OTHERWISE BE PAID UNDER SEC
709(A).  IF THE SLIDING SCALE REQUIRES 90% OF CERTAIN PROFITS TO BE
TURNED OVER TO THE COMMISSION, IT MAKES BETTER SENSE TO SAY THAT THE
COMMISSION CAN TAKE THE FULL 90% UNDER SEC 5(B), THUS RENDERING SEC
709(A) SUPERFLUOUS, THAN TO CONCLUDE THAT THE COMMISSION'S AUTHORITY
UNDER SEC 5(B) EXTENDS ONLY TO THE INCREMENTAL AMOUNT.  ACCORDING TO
EASTERN'S ARGUMENT SEC 709(A) PERFORMS A DUAL FUNCTION; IT ALLOCATES
THAT PERCENT OF PROFITS WHICH MAY BE REACHED AS "CHARTER HIRE  ...
FIXED BY THE COMMISSION" AND IT DISTRIBUTES THE REMAINING PROFITS.  WE
THINK IT CLEAR THAT IT WAS NOT INTENDED IN THE CONTEXT OF THE 1946 ACT
TO PERFORM THE FORMER ROLE; THEREFORE, EVEN WERE ANY RATE SET UNDER SEC
5(B) TAKEN TO BE "CHARTER HIRE RESERVED IN THE CHARTER," NO STATUTORY
IMPEDIMENT WOULD PRECLUDE THE COMMISSION FROM TAKING THE FULL 75% AND
90% OF EXCESS PROFITS.  A CONTRARY CONCLUSION WOULD REQUIRE A STRAINED
READING OF THE LANGUAGE OF THE ACT AND WOULD CONFLICT WITH THE POLICIES
ENUNCIATED THEREIN. 

                                            III. 

BECAUSE OF THE DISCOURAGEMENT OF SALES RESULTING FROM THE HIGH
PROFITS EARNED BY CHARTERERS IN THE FIRST PART OF 1947, THE COMMISSION
SENT TELEGRAMS TO EASTERN AND OTHER CHARTERERS ON AUGUST 15 INFORMING
THEM OF THE COMMISSION'S INTENTION TO TERMINATE THE CHARTER CONTRACTS,
A PRIVILEGE GIVEN TO BOTH PARTIES UNDER CLAUSE 14.  THE TELEGRAMS
STATED THAT THE CHARTERERS WOULD BE ABLE TO CONTINUE USE OF THE VESSELS
IF THEY AGREED TO NEW TERMS AND CONDITIONS.  ON AUGUST 20, THE
COMMISSION SET OUT THE NEW TERMS, INCLUDING A PROVISION THAT PAYMENT OF
ADDITIONAL CHARTER HIRE UNDER CLAUSE 13 BE COMPUTED SEPARATELY FOR
VOYAGES COMMENCING AFTER SEPTEMBER 1.  EASTERN AGREED TO THE TERMS;
SINCE IT SUFFERED LOSSES FOR ITS POST-AUGUST VOYAGES, IT WAS REQUIRED
TO PAY TO THE COMMISSION A GREATER AMOUNT THAN WOULD HAVE BEEN THE CASE
HAD 1947 BEEN TREATED AS A UNIT FOR ACCOUNTING PURPOSES.  EASTERN
CLAIMS THAT THE "FOREIGN TRADE ADDENDUM" TO ITS CHARTER WAS INVALID
INSOFAR AS IT PURPORTED TO DIVIDE 1947 INTO TWO ACCOUNTING PERIODS.  IT
ARGUES THAT SEC 709(A) REQUIRED CALENDAR YEAR ACCOUNTING, THAT
AGREEMENT TO THE ADDENDUM WAS INSUFFICIENT TO CREATE A NEW CHARTER
CONTRACT, AND THAT THE COMMISSION COULD NOT USE ITS TERMINATION POWER
TO ACCOMPLISH AN IMPROPER RESULT. 

WE FIND THIS POSITION UNTENABLE.  THERE WAS NO EXPLICIT LIMITATION ON
THE COMMISSION'S POWER TO TERMINATE EXISTING CHARTERS, NOR DO WE READ
SEC 709(A), WHICH PROVIDES FOR COMPUTATION OF ADDITIONAL CHARTER HIRE
"AT THE END OF ANY CALENDAR YEAR," AS INDIRECTLY IMPOSING SUCH A
RESTRICTION.  THE COMMISSION COULD, THEREFORE, HAVE TERMINATED ALL
EXISTING CHARTERS AND RECHARTERED THE VESSELS TO ACCOMPLISH THE END IT
SOUGHT.  THAT THE NOTIFICATION OF TERMINATION WAS NOT A DISINGENUOUS
THREAT TO ACHIEVE AN OTHERWISE IMPROPER PURPOSE IS EVIDENCED BY THE
NUMBER OF CONTRACTS WHICH WERE, IN FACT, TERMINATED SUBSEQUENT TO
AUGUST 15.  THE ADDENDUM STATES THAT IT IS TO BE "TREATED FOR
ACCOUNTING PURPOSES AS IF IT CONSTITUTED A SEPARATE CHARTER  ... ."  WE
WILL NOT REFUSE TO ACCORD IT SIGNIFICANCE SIMPLY BECAUSE THE COMMISSION
DID NOT REQUIRE THE CHARTERER TO GO THROUGH THE FORMALITIES OF THE
EXECUTION OF A NEW CONTRACT.  AFFIRMED. 

FN1  HEREAFTER "EASTERN." 

FN2  COMPARE THE OPINION BELOW, 312 F.2D 214, AND UNITED STATES V.
EASTPORT STEAMSHIP CORP., 216 F. SUPP. 649, WITH AMERICAN EXPORT LINES,
INC., V. UNITED STATES, 153 CT. CL.  201, 290 F.2D 925; DICHMAN, WRIGHT
& PUGH, INC., V. UNITED STATES, 144 F. SUPP. 922; AMERICAN MAIL LINE,
LTD., V. UNITED STATES, 213 F. SUPP. 152; AMERICAN PRESIDENT LINES,
LTD., V. UNITED STATES, 224 F. SUPP. 187. 

FN3  SEC 7(A), 60 STAT. 44, 50 U.S.C. APP. SEC 1740. 

FN4  THE GOVERNMENT DOES NOT PRESS THE CLAIMS HERE THAT EASTERN
CANNOT RECOVER BECAUSE OF THE RUNNING OF THE STATUTE OF LIMITATIONS OR
BECAUSE OF VOLUNTARY PAYMENTS MADE TO THE COMMISSION.  IT ASSERTS THAT
THESE DEFENSES WERE PLEADED BELOW BUT WERE NOT CONSIDERED DURING THE
HEARING; IT RESERVES THE RIGHT TO RAISE THEM ON REMAND IN THE EVENT OF
A REVERSAL.    FN5  SEE 61 STAT. 190, 191; 62 STAT. 38; 63 STAT. 9; 63
STAT. 349.  IN 1950, CONGRESS ABOLISHED THE MARITIME COMMISSION AND THE
FUNCTION OF CHARTERING SHIPS WAS TRANSFERRED TO THE SECRETARY OF
COMMERCE, 64 STAT. 308; 64 STAT. 1276, 1277. 

FN6  HEARINGS BEFORE THE SUBCOMMITTEE ON SHIP SALES, CHARTERS, AND
LAY-UPS, HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, 80TH CONG.,
1ST SESS. (1947). 

FN7  SECTION 714 OF THE 1936 ACT, 49 STAT. 2011, AS AMENDED, 46
U.S.C. SEC 1204, DOES PROVIDE FOR NEGOTIATED RATES OF CHARTER HIRE IF
ESSENTIAL TRADE ROUTES CANNOT OTHERWISE BE SUCCESSFULLY DEVELOPED.  IT
CONTAINS A FIRM MINIMUM RATE.  HAD THIS BEEN THE PRIMARY METHOD OF
CHARTERING ENVISIONED IN 1936, THE SECTION'S SIMILARITY TO SEC 5(B) OF
THE 1946 ACT WOULD HAVE CONSIDERABLE BEARING ON ANY INTERPRETATION OF
THE RELEVANCE OF SEC 709(A) IN THE LATER ACT.  THE EXCEPTION THIS
PROVISION MAKES TO COMPETITIVE BIDDING, HOWEVER, DOES NOT ALTER THE
FACT THAT THE BASIC METHOD OF RATE SETTING WAS ENTIRELY DIFFERENT UNDER
THE 1936 ACT FROM THAT CONTEMPLATED IN 1946.  WE INTIMATE NO VIEW AS TO
THE RELATIONSHIP BETWEEN SEC 714 AND SEC 709(A) UNDER THE 1936 ACT. 

FN8  EASTERN'S CONTENTION THAT THE LEGISLATIVE HISTORY OF THE 1946
ACT CONFIRMS ITS POSITION IS NOT WELL TAKEN.  THAT CONGRESS DID NOT
DISAPPROVE OF CHARTERS AND THAT IT PROVIDED SEPARATE SAFEGUARDS TO
ENCOURAGE SALES DOES NOT UNDERMINE THE PLAINLY EXPRESSED PREFERENCE OF
SALES TO CHARTERS AND THE CONCERN THAT CHARTER RATES NOT BE SO LOW AS
TO MAKE PURCHASE LESS PROFITABLE THAN HIRE.  THAT SOME LEGISLATORS
BELIEVED THE 15% RATE OF SEC 5(B) TO BE HIGH IS IRRELEVANT, SINCE THE
COMMISSION'S POWER TO RAISE RATES UNDER SEC 5(B) IS UNDISPUTED AND THE
ISSUE HERE CONCERNS ONLY THE KIND OF RATE STRUCTURE PERMISSIBLE. 
FINALLY, THE CIRCUMSCRIPTION OF COMMISSION DISCRETION, WHICH EASTERN
BELIEVES WAS INTENDED BY CONGRESS, HAD TO DO WITH THE DESIRABILITY OF
HAVING SET RATES INSTEAD OF INDIVIDUALLY NEGOTIATED CHARTERS, RATHER
THAN WITH THE KINDS OF RATES THAT MIGHT BE SET. 
..END :




















TEAMSTERS UNION V. MORTON 377 U.S. 252 


NO. 485.  ARGUED APRIL 29, 1964.  - DECIDED MAY 25, 1964.  - 320 F.2D
505, JUDGMENT VACATED AND CASE REMANDED. 


DURING A STRIKE PETITIONER LABOR UNION ENGAGED IN SECONDARY ACTIVITIES
TO INDUCE CUSTOMERS AND SUPPLIERS TO CEASE DEALING WITH THE RESPONDENT
EMPLOYER.  THE RESPONDENT FILED SUIT IN THE FEDERAL DISTRICT COURT
UNDER SEC 303 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947 AND STATE
COMMON LAW TO RECOVER FOR BUSINESS LOSSES CAUSED BY THE UNION'S
UNLAWFUL CONDUCT, AND WAS AWARDED COMPENSATORY DAMAGES FOR THE UNION'S
HAVING ENCOURAGED EMPLOYEES OF A CUSTOMER TO FORCE ITS EMPLOYER TO STOP
DOING BUSINESS WITH RESPONDENT (IN VIOLATION OF SEC 303); FOR THE
UNION'S HAVING PERSUADED THE MANAGEMENT OF ONE OF THE RESPONDENT'S
CUSTOMERS TO CEASE DOING BUSINESS WITH THE RESPONDENT, AND FOR ITS
HAVING CAUSED LOSS OF A CONTRACT BECAUSE THERE WERE NOT ENOUGH
EMPLOYEES AVAILABLE DURING THE STRIKE TO PERFORM IT (BOTH IN VIOLATION
OF STATE LAW); AND PUNITIVE DAMAGES (ALSO UNDER STATE LAW), ALTHOUGH IT
WAS HELD THAT THE STRIKE WAS FREE OF VIOLENCE.  THE COURT OF APPEALS
AFFIRMED.  HELD: 

1.  THE ACTION OF THE UNION IN ENCOURAGING THE EMPLOYEES OF A
CUSTOMER TO FORCE THEIR EMPLOYER TO STOP DOING BUSINESS WITH THE
RESPONDENT WAS A CLEAR VIOLATION OF SEC 303.  P. 256. 

2.  STATE LAW HAS BEEN DISPLACED BY SEC 303 IN PRIVATE DAMAGE ACTIONS
BASED ON PEACEFUL UNION SECONDARY ACTIVITIES.  PP. 256-261. 

(A)  THE UNION'S REQUEST TO THE MANAGEMENT OF ONE OF RESPONDENT'S
CUSTOMERS TO CEASE DOING BUSINESS WITH RESPONDENT IS NOT PROHIBITED BY
SEC 303(A).  PP. 259-260. 

(B)  PUNITIVE DAMAGES ARE NOT PROVIDED FOR IN SEC 303(B), WHICH IS
LIMITED TO COMPENSATORY DAMAGES.  PP. 260-261. 

3.  PEACEFUL PRIMARY STRIKE ACTIVITY DOES NOT VIOLATE SEC 303(A) EVEN
THOUGH PETITIONER MAY HAVE CONTEMPORANEOUSLY ENGAGED IN UNLAWFUL
ACTIVITIES ELSEWHERE.  PP. 261-262. 

LOCAL 20, TEAMSTERS, CHAUFFEURS & HELPERS UNION V. MORTON, DOING
BUSINESS AS LESTER MORTON TRUCKING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER IS A LABOR ORGANIZATION.  THE RESPONDENT IS A COMPANY
ENGAGED IN THE BUSINESS OF PROVIDING DUMP TRUCKS AND DRIVERS, AS A
SUBCONTRACTOR ON HIGHWAY CONSTRUCTION, WITH ITS PRINCIPAL PLACE OF
BUSINESS AT TIFFIN, OHIO.  THE PETITIONER REPRESENTED THE RESPONDENT'S
EMPLOYEES FROM 1950 UNTIL 1956 UNDER AN ORAL AGREEMENT.  IN 1956 THE
PARTIES ENGAGED IN NEGOTIATIONS FOR A WRITTEN AGREEMENT.  AN IMPASSE IN
BARGAINING PRECIPITATED A STRIKE WHICH LASTED FROM AUGUST TO OCTOBER OF
THAT YEAR.  DURING THE STRIKE THE PETITIONER ENGAGED IN SECONDARY
ACTIVITIES INVOLVING SOME OF THE RESPONDENT'S CUSTOMERS AND SUPPLIERS,
FOR THE PURPOSE OF INDUCING THEM TO CEASE DOING BUSINESS WITH THE
RESPONDENT.  CLAIMING THAT THESE ACTIVITIES WERE UNLAWFUL BOTH UNDER
SEC 303 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, 29 U.S.C.  SEC
187,  (FN1)  AND UNDER THE COMMON LAW OF OHIO, THE RESPONDENT SUED THE
PETITIONER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO, CLAIMING DAMAGES FOR BUSINESS LOSSES CAUSED BY THE
PETITIONER'S ALLEGEDLY UNLAWFUL CONDUCT DURING THE STRIKE. 

AFTER A TRIAL WITHOUT A JURY, THE DISTRICT COURT FOUND THAT THE
PETITIONER HAD ENCOURAGED THE EMPLOYEES OF FRANCE STONE CO., A SUPPLIER
OF THE RESPONDENT, AND THE EMPLOYEES OF C.A.  SCHOEN, INC., AND
O'CONNEL COAL CO., CUSTOMERS OF RESPONDENT, TO FORCE THEIR EMPLOYERS TO
CEASE DOING BUSINESS WITH THE RESPONDENT, IN VIOLATION OF SEC 303 OF
THE FEDERAL ACT.  (FN2)  THE COURT AWARDED THE RESPONDENT SOME $1,600
DAMAGES FOR BUSINESS LOSSES CAUSED BY THIS VIOLATION OF FEDERAL LAW. 
(FN3)  THE COURT ALSO DETERMINED THAT DURING THE STRIKE THE PETITIONER
HAD PERSUADED THE MANAGEMENT OF LAUNDER & SON, INC., ANOTHER OF THE
RESPONDENT'S CUSTOMERS, TO REFRAIN FROM DOING BUSINESS WITH THE
RESPONDENT.  SINCE THERE HAD BEEN NO APPROACH TO LAUNDER'S EMPLOYEES,
THE COURT HELD THAT THE REQUEST TO LAUNDER MANAGEMENT WAS PERMISSIBLE
ACTIVITY UNDER FEDERAL LAW, BUT RULED THAT THIS CONDUCT VIOLATED THE
COMMON LAW OF OHIO, WHICH, THE COURT SAID, PROHIBITS "MAKING DIRECT
APPEALS TO A STRUCK EMPLOYER'S CUSTOMERS OR SUPPLIERS TO STOP DOING
BUSINESS WITH THE STRUCK EMPLOYER  ...  ."  THE RESPONDENT WAS
ACCORDINGLY AWARDED ALMOST $9,000 AS COMPENSATORY DAMAGES FOR THIS
VIOLATION OF OHIO LAW.  (FN4)  IN ADDITION, THE COURT AWARDED THE
RESPONDENT MORE THAN $9,000 FOR THE LOSS OF A CONTRACT TO HAUL SAND FOR
THE WILSON SAND & GRAVEL CO., WHICH LOSS HAD RESULTED FROM AN
INSUFFICIENT NUMBER OF DRIVERS AVAILABLE DURING THE STRIKE TO PERFORM
THE CONTRACT.  THIS AWARD WAS BASED UPON THE COURT'S REASONING THAT THE
RESPONDENT WAS ENTITLED TO RECOVER DAMAGES MEASURED BY ALL OF THE
PROFITS LOST AS A RESULT OF THE PETITIONER'S TOTAL STRIKE ACTIVITY, SO
LONG AS SOME OF THAT ACTIVITY WAS UNLAWFUL.  (FN5)  FINALLY, THE COURT
AWARDED PUNITIVE DAMAGES OF $15,000, ALTHOUGH EXPRESSLY FINDING THAT
THE PETITIONER'S CONDUCT DURING THE STRIKE HAD AT ALL TIMES BEEN FREE
OF ANY VIOLENCE.  (FN6) 

THE COURT OF APPEALS AFFIRMED THE AWARD IN ALL RESPECTS.  (FN7)
RELYING ON THE DOCTRINE OF PENDENT JURISDICTION, HURN V. OURSLER, 289
U.S. 238, AND CASES INVOLVING UNION VIOLENCE, E.G., FLAME COAL CO. V.
UNITED MINE WORKERS, 303 F.2D 39, THE APPELLATE COURT CONCLUDED THAT "A
NONFEDERAL CAUSE OF ACTION IS NOT EXTINGUISHED BECAUSE A STATE COURT IS
PRE-EMPTED BY FEDERAL LAW FROM PROVIDING RELIEF,"  (FN8)  AND THAT
"PUNITIVE DAMAGES ARE RECOVERABLE FOR UNLAWFUL SECONDARY BOYCOTT
ACTIVITIES  ...  ."  (FN9)  CERTIORARI WAS GRANTED TO CONSIDER THE
ISSUES OF FEDERAL LABOR LAW WHICH THIS CASE PRESENTS.  375 U.S. 939. 

AT THE OUTSET WE AFFIRM THE AWARD OF COMPENSATORY DAMAGES FOR THE
VIOLATION OF SEC 303 OF THE FEDERAL ACT.  THE DISTRICT COURT FOUND THAT
"THE DEFENDANT ENCOURAGED THE EMPLOYEES OF THE O'CONNEL COMPANY TO STOP
USING PLAINTIFF'S TRUCKS FOR THE PURPOSE OF FORCING OR REQUIRING THE
O'CONNEL COMPANY TO CEASE DOING BUSINESS WITH THE PLAINTIFF  ...  ." 
(FN10)  THIS FINDING OF A CLEAR VIOLATION OF SEC 303 WAS SUPPORTED BY
THE EVIDENCE, AS WAS THE AMOUNT OF DAMAGES AWARDED THEREFOR.  (FN11) 

WITH RESPECT TO THE REMAINING COMPONENTS OF THE MONEY JUDGMENT
RECOVERED BY THE RESPONDENT, THE CENTRAL QUESTION TO BE DECIDED IS
WHETHER A COURT, STATE OR FEDERAL, IS FREE TO APPLY STATE LAW IN
AWARDING DAMAGES RESULTING FROM A UNION'S PEACEFUL STRIKE CONDUCT VIS-A
VIS A SECONDARY EMPLOYER, OR IS CONFINED IN THE FIELD OF DAMAGE ACTIONS
BROUGHT FOR UNION SECONDARY ACTIVITIES TO THE SPECIFICALLY LIMITED
PROVISIONS OF SEC 303 OF THE FEDERAL ACT.  WE DISAGREE WITH THE COURT
OF APPEALS THAT THIS QUESTION CAN BE RESOLVED EITHER BY REFERENCE TO
THE DOCTRINE OF PENDENT JURISDICTION OR BY REFERENCE TO THE LINE OF
PRECEDENTS WHICH HAVE PERMITTED STATE LAW TO BE APPLIED IN SITUATIONS
WHERE UNION ACTIVITIES INVOLVING VIOLENCE WERE PRESENT. 

IF THE PROVISIONS OF SEC 303 MARK THE LIMITS BEYOND WHICH A COURT,
STATE OR FEDERAL, MAY NOT GO IN AWARDING DAMAGES FOR A UNION'S
SECONDARY ACTIVITIES, THEN THE DOCTRINE OF PENDENT JURISDICTION CAN BE
OF NO SERVICE.  PENDENT JURISDICTION PERMITS A FEDERAL COURT UNDER SOME
CIRCUMSTANCES TO DETERMINE A STATE CAUSE OF ACTION WHICH OTHERWISE
WOULD HAVE TO BE HEARD IN THE STATE COURT.  HURN V. OURSLER, SUPRA. BUT
IF THE STATE COURT WOULD BE WITHOUT AUTHORITY TO AWARD DAMAGES UNDER
STATE LAW, THEN THE DOCTRINE OF PENDENT JURISDICTION CAN GIVE "THE
DISTRICT COURT  ...  NO GREATER POWER TO DO SO."  LAUF V. SHINNER &
CO., 303 U.S. 323, 328. 

AND IN CASES INVOLVING UNION VIOLENCE, STATE LAW HAS BEEN PERMITTED
TO PREVAIL BY REASON OF CONTROLLING CONSIDERATIONS WHICH ARE ENTIRELY
ABSENT IN THE PRESENT CASE.  "WE HAVE ALLOWED THE STATES TO GRANT
COMPENSATION FOR THE CONSEQUENCES, AS DEFINED BY THE TRADITIONAL LAW OF
TORTS, OF CONDUCT MARKED BY VIOLENCE AND IMMINENT THREATS TO THE PUBLIC
ORDER.  UNITED AUTOMOBILE WORKERS V. RUSSELL, 356 U.S. 634; UNITED
CONSTRUCTION WORKERS V. LABURNUM CORP., 347 U.S. 656  ...  .  STATE
JURISDICTION HAS PREVAILED IN THESE SITUATIONS BECAUSE THE COMPELLING
STATE INTEREST, IN THE SCHEME OF OUR FEDERALISM, IN THE MAINTENANCE OF
DOMESTIC PEACE IS NOT OVERRIDDEN IN THE ABSENCE OF CLEARLY EXPRESSED
CONGRESSIONAL DIRECTION  ...  .  IN THE PRESENT CASE THERE IS NO SUCH
COMPELLING STATE INTEREST."  SAN DIEGO BLDG. TRADES V. GARMON, 359 U.S.
236, 247-248. 

IT IS THE RESPONDENT'S CONTENTION, HOWEVER, THAT SINCE THE PETITIONER
UNION'S PEACEFUL CONDUCT WAS NEITHER ARGUABLY PROTECTED UNDER SEC 7 NOR
ARGUABLY PROHIBITED UNDER SEC 8 OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, THE TRIAL COURT WAS FREE TO AWARD DAMAGES ON THE BASIS OF
STATE LAW FOR INJURIES CAUSED BY THIS CONDUCT.  BUT EVEN THOUGH IT MAY
BE ASSUMED THAT AT LEAST SOME OF THE SECONDARY ACTIVITY HERE INVOLVED
WAS NEITHER PROTECTED NOR PROHIBITED, IT IS STILL NECESSARY TO
DETERMINE WHETHER BY ENACTING SEC 303, "CONGRESS OCCUPIED THIS FIELD
AND CLOSED IT TO STATE REGULATION."  AUTOMOBILE WORKERS V. O'BRIEN, 339
U.S. 454, 457.  THE BASIC QUESTION, IN OTHER WORDS, IS WHETHER "IN A
CASE SUCH AS THIS, INCOMPATIBLE DOCTRINES OF LOCAL LAW MUST GIVE WAY TO
PRINCIPLES OF FEDERAL LABOR LAW."  TEAMSTERS LOCAL 174 V. LUCAS FLOUR
CO., 369 U.S. 95, 102.  THE ANSWER TO THAT QUESTION ULTIMATELY DEPENDS
UPON WHETHER THE APPLICATION OF STATE LAW IN THIS KIND OF CASE WOULD
OPERATE TO FRUSTRATE THE PURPOSE OF THE FEDERAL LEGISLATION.  COLORADO
ANTI-DISCRIMINATION COMM'N V. CONTINENTAL AIR LINES, 372 U.S. 714,
722. 

AUTHORIZES STATE AND FEDERAL COURTS TO AWARD DAMAGES TO ANY PERSON
INJURED BY CERTAIN SECONDARY BOYCOTT ACTIVITIES DESCRIBED IN SEC
303(A).  (FN12)  THE TYPE OF CONDUCT TO BE MADE THE SUBJECT OF A
PRIVATE DAMAGE ACTION WAS CONSIDERED BY CONGRESS, AND SEC 303(A)
COMPREHENSIVELY AND WITH GREAT PARTICULARITY "DESCRIBES AND CONDEMNS
SPECIFIC UNION CONDUCT DIRECTED TO SPECIFIC OBJECTIVES."  CARPENTERS
LOCAL 1976 V. LABOR BOARD, 357 U.S. 93, 98.  (FN13)  IN SELECTING WHICH
FORMS OF ECONOMIC PRESSURE SHOULD BE PROHIBITED BY SEC 303, CONGRESS
STRUCK THE "BALANCE  ...  BETWEEN THE UNCONTROLLED POWER OF MANAGEMENT
AND LABOR TO FURTHER THEIR RESPECTIVE INTERESTS," ID., AT 100, BY
"PRESERVING THE RIGHT OF LABOR ORGANIZATIONS TO BRING PRESSURE TO BEAR
ON OFFENDING EMPLOYERS IN PRIMARY LABOR DISPUTES AND BY SHIELDING
UNOFFENDING EMPLOYERS AND OTHERS FROM PRESSURES IN CONTROVERSIES NOT
THEIR OWN."  LABOR BOARD V. DENVER BLDG. & CONSTRUCTION TRADES COUNCIL,
341 U.S. 675, 692. 

IN THIS CASE, THE PETITIONER'S REQUEST TO LAUNDER'S MANAGEMENT TO
CEASE DOING BUSINESS WITH THE RESPONDENT WAS NOT PROSCRIBED BY THE
ACT.  "A UNION IS FREE TO APPROACH AN EMPLOYER TO PERSUADE HIM TO
ENGAGE IN A BOYCOTT, SO LONG AS IT REFRAINS FROM THE SPECIFICALLY
PROHIBITED MEANS OF COERCION THROUGH INDUCEMENT OF EMPLOYEES." 
CARPENTERS LOCAL 1976 V. LABOR BOARD, SUPRA, AT 99.  THIS WEAPON OF
SELF-HELP, PERMITTED BY FEDERAL LAW, FORMED AN INTEGRAL PART OF THE
PETITIONER'S EFFORT TO ACHIEVE ITS BARGAINING GOALS DURING NEGOTIATIONS
WITH THE RESPONDENT.  (FN14)  ALLOWING ITS USE IS A PART OF THE BALANCE
STRUCK BY CONGRESS BETWEEN THE CONFLICTING INTERESTS OF THE UNION, THE
EMPLOYEES, THE EMPLOYER AND THE COMMUNITY.  ELECTRICAL WORKERS LOCAL
761 V. LABOR BOARD, 366 U.S. 667, 672.  IF THE OHIO LAW OF SECONDARY
BOYCOTT CAN BE APPLIED TO PROSCRIBE THE SAME TYPE OF CONDUCT WHICH
CONGRESS FOCUSED UPON BUT DID NOT PROSCRIBE WHEN IT ENACTED SEC 303,
THE INEVITABLE RESULT WOULD BE TO FRUSTRATE THE CONGRESSIONAL
DETERMINATION TO LEAVE THIS WEAPON OF SELF-HELP AVAILABLE, AND TO UPSET
THE BALANCE OF POWER BETWEEN LABOR AND MANAGEMENT EXPRESSED IN OUR
NATIONAL LABOR POLICY.  "FOR A STATE TO IMPINGE ON THE AREA OF LABOR
COMBAT DESIGNED TO BE FREE IS QUITE AS MUCH AN OBSTRUCTION OF FEDERAL
POLICY AS IF THE STATE WERE TO DECLARE PICKETING FREE FOR PURPOSES OR
BY METHODS WHICH THE FEDERAL ACT PROHIBITS."  GARNER V. TEAMSTERS
UNION, 346 U.S. 485, 500.  WE HOLD, THEREFORE, THAT THE DAMAGES AWARDED
AGAINST THE PETITIONER BASED UPON ITS PEACEFUL PERSUASION OF LAUNDER'S
MANAGEMENT NOT TO DO BUSINESS WITH THE RESPONDENT DURING THE STRIKE
CANNOT STAND. 

THE SAME CONSIDERATIONS REQUIRE REVERSAL OF THE AWARD OF PUNITIVE
DAMAGES.  PUNITIVE DAMAGES FOR VIOLATIONS OF SEC 303 CONFLICT WITH THE
CONGRESSIONAL JUDGMENT, REFLECTED BOTH IN THE LANGUAGE OF THE FEDERAL
STATUTE  (FN15)  AND IN ITS LEGISLATIVE HISTORY,  (FN16)  THAT RECOVERY
FOR AN EMPLOYER'S BUSINESS LOSSES CAUSED BY A UNION'S PEACEFUL
SECONDARY ACTIVITIES PROSCRIBED BY SEC 303 SHOULD BE LIMITED TO ACTUAL,
COMPENSATORY DAMAGES.  AND INSOFAR AS PUNITIVE DAMAGES IN THIS CASE
WERE BASED ON SECONDARY ACTIVITIES, WHICH VIOLATED ONLY STATE LAW, THEY
CANNOT STAND, BECAUSE, AS WE HAVE HELD, SUBSTANTIVE STATE LAW IN THIS
AREA MUST YIELD TO FEDERAL LIMITATIONS.  IN SHORT, THIS IS AN AREA "OF
JUDICIAL DECISION WITHIN WHICH THE POLICY OF THE LAW IS SO DOMINATED BY
THE SWEEP OF FEDERAL STATUTES THAT LEGAL RELATIONS WHICH THEY AFFECT
MUST BE DEEMED GOVERNED BY FEDERAL LAW HAVING ITS SOURCE IN THOSE
STATUTES, RATHER THAN BY LOCAL LAW."  SOLA ELECTRIC CO. V. JEFFERSON
ELECTRIC CO., 317 U.S. 173, 176.  ACCORDINGLY, WE HOLD THAT SINCE STATE
LAW HAS BEEN DISPLACED BY SEC 303 IN PRIVATE DAMAGE ACTIONS BASED ON
PEACEFUL UNION SECONDARY ACTIVITIES, THE DISTRICT COURT IN THIS CASE
WAS WITHOUT AUTHORITY TO AWARD PUNITIVE DAMAGES.  (FN17) 

THERE REMAINS FOR CONSIDERATION ONLY THE QUESTION OF THE DAMAGE AWARD
FOR THE RESPONDENT'S LOSS OF THE WILSON ACCOUNT.  THE RESPONDENT
CONCEDED AT TRIAL THAT THERE WAS "NO EVIDENCE OF UNLAWFUL ACTIVITY IN
CONNECTION WITH THIS (THE WILSON) JOB," AND THE RECORD MAKES CLEAR THAT
THE RESPONDENT LOST THE WILSON ACCOUNT BECAUSE HIS DRIVERS WERE
DISCOURAGED FROM WORKING DURING THE STRIKE BY THE PETITIONER'S PRIMARY
STRIKE ACTIVITY.  (FN18)  SINCE SEC 303(B) AUTHORIZES AN AWARD OF
DAMAGES ONLY IN THE EVENT OF INJURY "BY REASON OF ANY VIOLATION OF
SUBSECTION (A)" AND PEACEFUL PRIMARY STRIKE ACTIVITY DOES NOT VIOLATE
SEC 303(A), ELECTRICAL WORKERS LOCAL 761 V. LABOR BOARD, 366 U.S. 667,
672, THE DISTRICT COURT WAS WITHOUT POWER TO AWARD DAMAGES PROXIMATELY
CAUSED BY LAWFUL, PRIMARY ACTIVITIES, EVEN THOUGH THE PETITIONER MAY
HAVE CONTEMPORANEOUSLY ENGAGED IN UNLAWFUL ACTS ELSEWHERE.  SEE
CHAUFFEURS LOCAL 175 V. LABOR BOARD, 294 F.2D 261. 

THE JUDGMENT IS VACATED AND THE CASE REMANDED TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  SECTION 303 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947
PROVIDED: 

"(A)  IT SHALL BE UNLAWFUL, FOR THE PURPOSES OF THIS SECTION ONLY, IN
AN INDUSTRY OR ACTIVITY AFFECTING COMMERCE, FOR ANY LABOR ORGANIZATION
TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY EMPLOYER
TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF THEIR
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE
OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM
ANY SERVICES, WHERE AN OBJECT THEREOF IS:    "(1)  FORCING OR REQUIRING
ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR EMPLOYER
ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING, SELLING,
HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY
OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING BUSINESS
WITH ANY OTHER PERSON. 

"(2)  FORCING OR REQUIRING ANY OTHER EMPLOYER TO RECOGNIZE OR BARGAIN
WITH A LABOR ORGANIZATION AS THE REPRESENTATIVE OF HIS EMPLOYEES UNLESS
SUCH LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE REPRESENTATIVE OF
SUCH EMPLOYEES UNDER THE PROVISIONS OF SECTION 159 OF THIS TITLE. 
"(3)  FORCING OR REQUIRING ANY EMPLOYER TO RECOGNIZE OR BARGAIN WITH A
PARTICULAR LABOR ORGANIZATION AS THE REPRESENTATIVE OF HIS EMPLOYEES IF
ANOTHER LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE REPRESENTATIVE OF
SUCH EMPLOYEES UNDER THE PROVISIONS OF SECTION 159 OF THIS TITLE. 

"(4)  FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE,
CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION
OR IN ANOTHER TRADE, CRAFT, OR CLASS UNLESS SUCH EMPLOYER IS FAILING TO
CONFORM TO AN ORDER OR CERTIFICATION OF THE NATIONAL LABOR RELATIONS
BOARD DETERMINING THE BARGAINING REPRESENTATIVE FOR EMPLOYEES
PERFORMING SUCH WORK.  NOTHING CONTAINED IN THIS SUBSECTION 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 SUBCHAPTER II OF THIS CHAPTER. 

"(B)  WHOEVER SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY REASON
OF ANY VIOLATION OF SUBSECTION (A) OF THIS SECTION MAY SUE THEREFOR IN
ANY DISTRICT COURT OF THE UNITED STATES SUBJECT TO THE LIMITATIONS AND
PROVISIONS OF SECTION 185 OF THIS TITLE WITHOUT RESPECT TO THE AMOUNT
IN CONTROVERSY, OR IN ANY OTHER COURT HAVING JURISDICTION OF THE
PARTIES, AND SHALL RECOVER THE DAMAGES BY HIM SUSTAINED AND THE COST OF
THE SUIT."  61 STAT. 158, 29 U.S.C. SEC 187. 

CERTAIN AMENDMENTS TO SEC 303 WERE MADE BY THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 545, 29 U.S.C. (SUPP.
IV) SEC 187, BUT THESE AMENDMENTS ARE NOT GERMANE TO THE QUESTIONS
PRESENTED IN THIS CASE. 

FN2  200 F. SUPP. 653, 658-569. 

FN3  ID., AT 661. 

FN4  ID., AT 656, 661. 

FN5  ID., AT 656, 658, 661. 

FN6  ID., AT 661. 

FN7  320 F.2D 505. 

FN8  ID., AT 507 

FN9  ID., AT 508. 

FN10  200 F. SUPP., AT 659. 

FN11  NO DAMAGES WERE AWARDED WITH RESPECT TO THE PETITIONER'S
DEALINGS WITH THE EMPLOYEES OF FRANCE STONE CO. OR C.A. SCHOEN, INC. 

FN12  SEE NOTE 1, SUPRA. 

FN13  SECTION 8(B)(4), 29 U.S.C. SEC 158(B)(4), AND SEC 303, 29
U.S.C. SEC 187, "HAVE AN IDENTITY OF LANGUAGE" BUT SPECIFY TWO
"DIFFERENT REMEDIES."  LONGSHOREMEN V. JUNEAU CORP., 342 U.S. 237,
244.   SECTION 8(B)(4) PROVIDES THAT CERTAIN CONDUCT CONSTITUTES AN
UNFAIR LABOR PRACTICE FOR WHICH AN ADMINISTRATIVE REMEDY IS AFFORDED. 
THE SAME CONDUCT UNDER SEC 303 ALSO GIVES RISE TO A CLAIM FOR DAMAGES
COGNIZABLE IN EITHER STATE OR FEDERAL COURTS.  AS A CONSEQUENCE OF THE
1959 AMENDMENTS TO THE ACT, SEC 303 NOW INCORPORATES BY REFERENCE THE
PROHIBITIONS EMBODIED IN SEC 8(B)(4). 

FN14  NO CLAIM HAS BEEN MADE THAT LAUNDER'S VOLUNTARY COMPLIANCE WITH
THE PETITIONER'S REQUEST, UNSUPPORTED BY ANY CONSIDERATION, AMOUNTED TO
AN "AGREEMENT, EXPRESS OR IMPLIED" UNDER SEC 8(E) OF THE ACT, ADDED BY
THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT.
519, 29 U.S.C. (SUPP. IV) SEC 158(E). 

FN15 SECTION 303(B) PROVIDES IN PERTINENT PART THAT "WHOEVER SHALL BE
INJURED IN HIS BUSINESS OR PROPERTY  ...  SHALL RECOVER THE DAMAGES BY
HIM SUSTAINED  ...  ." 

FN16  IN THE SENATE DEBATE ON THE BILL, SENATOR TAFT SAID, "  ...  I
SEE NO REASON WHY SUITS OF THIS SORT SHOULD NOT BE PERMITTED TO BE
FILED.  AFTER ALL, IT IS ONLY TO RESTORE TO PEOPLE WHO LOSE SOMETHING
BECAUSE OF BOYCOTTS AND JURISDICTIONAL STRIKES THE MONEY WHICH THEY
HAVE LOST."  93 CONG. REC. 4858.  LATER, IN RESPONSE TO SENATOR MORSE'S
CLAIM THAT SEC 303 WOULD IMPOSE VIRTUALLY UNLIMITED LIABILITY, SENATOR
TAFT SAID, "UNDER THE SHERMAN ACT THE SAME QUESTION OF BOYCOTT DAMAGE
IS SUBJECT TO A SUIT FOR DAMAGES AND ATTORNEYS' FEES.  IN THIS CASE WE
SIMPLY PROVIDE FOR THE AMOUNT OF THE ACTUAL DAMAGES."  93 CONG. REC.
4872-4873. 

FN17  SEE UNITED MINE WORKERS V. PATTON, 211 F.2D 742, 747-750;
OVERNITE TRANSPORTATION CO. V. TEAMSTERS, 257 N.C. 18, 125 S.E.2D 277,
CERT. DENIED, 371 U.S. 862. 

FN18  IT IS ARGUED THAT THE PETITIONER'S UNLAWFUL SECONDARY
ACTIVITIES MADE MORE EFFECTIVE THE PETITIONER'S ATTEMPTS TO DISCOURAGE
EMPLOYEES OF THE RESPONDENT FROM WORKING DURING THE STRIKE.  BUT THERE
IS NOTHING IN THE RECORD TO INDICATE, AND NO FINDING BY THE TRIAL
COURT, THAT THE PETITIONER'S SECONDARY ACTIVITIES WHICH WERE UNLAWFUL
UNDER SEC 303 HAD ANY EFFECT WHATSOEVER ON THE RESPONDENT'S EMPLOYEES'
DECISIONS NOT TO WORK DURING THE STRIKE. 

MR. JUSTICE GOLDBERG, CONCURRING. 

MY CONCURRENCE IN THE COURT'S OPINION AND JUDGMENT DOES NOT INDICATE
APPROVAL OF THE COURT'S HOLDINGS IN UNITED AUTOMOBILE WORKERS V.
RUSSELL, 356 U.S. 634, AND UNITED CONSTRUCTION WORKERS V. LABURNUM
CORP., 347 U.S. 656. 
..END :











CALHOUN V. LATIMER 377 U.S. 263 


NO. 623.  ARGUED MARCH 31, 1964.  - DECIDED MAY 25, 1964.  - 321 F.2D
302, VACATED AND REMANDED. 


SUBSEQUENT TO THE ARGUMENT IN THIS COURT, THE ATLANTA BOARD OF
EDUCATION SET FORTH IN A RESOLUTION ITS PUPIL ASSIGNMENT AND TRANSFER
POLICY FOR THE ENSUING SCHOOL YEAR.  THE CAUSE IS REMANDED TO THE
DISTRICT COURT TO TEST THE NATURE AND EFFECT OF THE RESOLUTION AND THE
ENTIRE PLAN FOR SCHOOL DESEGREGATION UNDER CONSIDERATIONS SET FORTH IN
WATSON V. CITY OF MEMPHIS, 373 U.S. 526; GOSS V. BOARD OF EDUCATION,
373 U.S. 683; AND GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD
COUNTY, ANTE, AT 218. 

CALHOUN ET AL. V. LATIMER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

DURING THE ARGUMENT OF THIS CASE, COUNSEL FOR RESPONDENTS STATED THAT
AFTER THE DECREE BELOW WAS ENTERED THE ATLANTA BOARD OF EDUCATION
ADOPTED ADDITIONAL PROVISIONS AUTHORIZING FREE TRANSFERS WITH CERTAIN
LIMITATIONS IN THE CITY'S HIGH SCHOOLS.  AT OUR INVITATION BOTH PARTIES
FILED SUPPLEMENTAL MEMORANDA DEALING WITH THIS ASPECT OF THE CASE.  IT
APPEARS THEREFROM THAT SINCE THE ARGUMENT THE ATLANTA BOARD OF
EDUCATION ON APRIL 8, 1964, ADOPTED AND PROMULGATED A NEW FORMAL
RESOLUTION STATING THE PRESENT POLICY OF THE BOARD AND THE FACTORS IT
WILL CONSIDER IN MAKING INITIAL ASSIGNMENTS OF PUPILS AND IN PERMITTING
TRANSFERS FOR THE SCHOOL YEAR 1964-1965.  PETITIONERS DENY THAT THIS
RESOLUTION MEETS THE CONSTITUTIONAL STANDARDS AND ASSERT THAT WITH
RESPECT TO STUDENTS IN THE ELEMENTARY SCHOOLS THE PLAN WILL NOT ACHIEVE
DESEGREGATION UNTIL SOMETIME IN THE 1970'S. 

IN LIGHT OF THE DEVELOPMENTS AT AND SINCE THE ARGUMENT, WE DEEM IT
APPROPRIATE THAT THE NATURE AND EFFECT OF THE BOARD'S RESOLUTION OF
APRIL 8, 1964, BE APPRAISED BY THE DISTRICT COURT IN A PROPER
EVIDENTIARY HEARING.  TO THIS END WE VACATE THE JUDGMENT AND REMAND THE
CAUSE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS. 

ALTHOUGH ATLANTA'S COMMENDABLE EFFORT TO EFFECT DESEGREGATION IS
RECOGNIZED, THE DISTRICT COURT ON REMAND MUST, OF COURSE, TEST THE
ENTIRE ATLANTA PLAN BY THE CONSIDERATIONS DISCUSSED IN WATSON V. CITY
OF MEMPHIS, 373 U.S. 526, 529; GOSS V. BOARD OF EDUCATION, 373 U.S.
683; AND GRIFFIN V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, ANTE,
AT 218, DECIDED SUBSEQUENT TO THE DISTRICT COURT'S APPROVAL OF THE
PLAN.  IN GOSS, SUPRA, AT 689, WE SAID: 

"WE ARE NOT UNMINDFUL OF THE DEEP-ROOTED PROBLEMS INVOLVED.  INDEED,
IT WAS CONSIDERATION FOR THE MULTIFARIOUS LOCAL DIFFICULTIES AND
'VARIETY OF OBSTACLES' WHICH MIGHT ARISE IN THIS TRANSITION THAT LED
THIS COURT EIGHT YEARS AGO TO FRAME ITS MANDATE IN BROWN IN SUCH
LANGUAGE AS 'GOOD FAITH COMPLIANCE AT THE EARLIEST PRACTICABLE DATE'
AND 'ALL DELIBERATE SPEED.'  BROWN V. BOARD OF EDUCATION, 349 U.S., AT
300, 301.  NOW, HOWEVER, EIGHT YEARS AFTER THIS DECREE WAS RENDERED AND
OVER NINE YEARS AFTER THE FIRST BROWN DECISION, THE CONTEXT IN WHICH WE
MUST INTERPRET AND APPLY THIS LANGUAGE TO PLANS FOR DESEGREGATION HAS
BEEN SIGNIFICANTLY ALTERED.  COMPARE WATSON V. CITY OF MEMPHIS, SUPRA."
VACATED AND REMANDED. 
..END :













NAGELBERG V. UNITED STATES 377 U.S. 266 


NO. 785.  DECIDED MAY 25, 1964.  - CERTIORARI GRANTED; 323 F.2D 936,
JUDGMENT VACATED AND CASE REMANDED. 


THE DISTRICT COURT HAS DISCRETION TO PERMIT WITHDRAWAL OF A GUILTY
PLEA WHERE THE GOVERNMENT PLANS TO DISMISS THE INDICTMENT AND
SUBSTITUTE LESSER CHARGES. 

NAGELBERG V. UNITED STATES. 

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

ON APRIL 11, 1962, PETITIONER PLEADED NOT GUILTY TO FEDERAL NARCOTICS
CHARGES; THEREAFTER, ON JULY 18, 1962, HE WAS PERMITTED TO WITHDRAW
THIS PLEA AND PLEAD GUILTY; IN NOVEMBER 1962, WHEN THE CASE CAME ON FOR
SENTENCING, HE MOVED TO WITHDRAW HIS GUILTY PLEA BECAUSE OF FACTS AND
CIRCUMSTANCES WHICH HAD CHANGED SINCE THE TIME OF THE PLEA, INCLUDING
PETITIONER'S EXTENSIVE COOPERATION WITH THE GOVERNMENT.  THE GOVERNMENT
ACQUIESCED IN THIS MOTION, BUT THE DISTRICT JUDGE DENIED IT, HOLDING
THAT HE HAD NO POWER TO PERMIT WITHDRAWAL OF THE PLEA ON SUCH GROUNDS. 
THE COURT SENTENCED PETITIONER TO THE MINIMUM STATUTORY TERM OF
IMPRISONMENT AND THE COURT OF APPEALS AFFIRMED THE CONVICTION, 323 F.2D
936. 

THE GOVERNMENT NOW SAYS THAT IT CONSENTED TO PETITIONER'S MOTION TO
WITHDRAW HIS PLEA BECAUSE IT "PLANNED TO DISMISS THE PENDING INDICTMENT
AGAINST PETITIONER AND SUBSTITUTE LESSER CHARGES."  THE GOVERNMENT
ADMITS THAT THIS PURPOSE WAS NOT EXPRESSLY STATED AND THAT "IT MAY BE
THAT THE COURT WAS MISLED." 

IN THESE CIRCUMSTANCES, WE BELIEVE THAT THE COURT HAS DISCRETION TO
PERMIT WITHDRAWAL OF THE PLEA.   SEE KERCHEVAL V. UNITED STATES, 274
U.S. 220, 224 (1927).  ACCORDINGLY, WE GRANT THE PETITION FOR
CERTIORARI, VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE
CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH
THIS OPINION. 
..END :











ROGERS V. PINE BLUFF, ARKANSAS 377 U.S. 268 


NO. 889.  DECIDED MAY 25, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  237 ARK. 117, 372
S.W.2D 620. 


ROGERS ET AL. V. CITY OF PINE BLUFF, ARKANSAS. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















HORNER V. FLORIDA 377 U.S. 268 


NO. 1156, MISC.  DECIDED MAY 25, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HORNER V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















RAYMOND, DBA CRESTMARK DAIRY V. WICKHAM, COMMISSIONER OF AGRICULTURE AND
MARKETS 377 U.S. 269 


NO. 1096, MISC.  DECIDED MAY 25, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


RAYMOND, DOING BUSINESS AS CRESTMARK DAIRY, V. WICKHAM, COMMISSIONER OF
AGRICULTURE AND MARKETS, ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW YORK, ALBANY COUNTY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :














AHLSTRAND V. UNITED STATES 377 U.S. 269 


NO. 1108, MISC.  DECIDED MAY 25, 1964.  - APPEAL DISMISSED. 


AHLSTRAND V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION. 
..END :

















LYNCHBURG V. UNITED STATES 377 U.S. 270 


NO. 931.  DECIDED MAY 25, 1964.  - 225 F. SUPP. 874, AFFIRMED. 


LYNCHBURG TRAFFIC BUREAU V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SCHNEIDER V. RUSK, SECRETARY OF STATE 377 U.S. 163 


NO. 368.  ARGUED APRIL 2, 1964.  - DECIDED MAY 18, 1964.  - 218 F. SUPP.
302, REVERSED. 


APPELLANT, WHO WAS BORN IN GERMANY, CAME TO THIS COUNTRY WITH HER
PARENTS AS A CHILD AND ACQUIRED DERIVATIVE AMERICAN CITIZENSHIP.  SHE
LIVED ABROAD SINCE GRADUATION FROM COLLEGE, BECAME MARRIED TO A GERMAN
NATIONAL, AND, EXCEPT FOR TWO VISITS BACK TO THIS COUNTRY, HAS LIVED IN
GERMANY FOR THE PAST EIGHT YEARS.  THE STATE DEPARTMENT DENIED HER A
PASSPORT, CERTIFYING THAT SHE HAD LOST HER AMERICAN CITIZENSHIP UNDER
SEC 352(A)(1) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, WHICH
PROVIDES THAT A NATURALIZED CITIZEN, WITH EXCEPTIONS NOT MATERIAL HERE,
LOSES CITIZENSHIP BY CONTINUOUS RESIDENCE FOR THREE YEARS IN THE
COUNTRY OF ORIGIN.  SHE THEREUPON SUED IN THE DISTRICT COURT FOR A
DECLARATORY JUDGMENT THAT SHE IS STILL AN AMERICAN CITIZEN AND HAS
APPEALED FROM THAT COURT'S ADVERSE DECISION.  HELD:  BY A MAJORITY OF
THIS COURT THAT SEC 352(A)(1) IS DISCRIMINATORY AND THEREFORE VIOLATIVE
OF DUE PROCESS UNDER THE FIFTH AMENDMENT OF THE CONSTITUTION, SINCE NO
RESTRICTION AGAINST THE LENGTH OF FOREIGN RESIDENCE APPLIES TO NATIVE
BORN CITIZENS, THOUGH SOME MEMBERS OF THAT MAJORITY BELIEVE THAT
CONGRESS LACKS CONSTITUTIONAL POWER TO EFFECT INVOLUNTARY DIVESTITURE
OF CITIZENSHIP.  PP. 164-169. 

SCHNEIDER V. RUSK, SECRETARY OF STATE. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163, 269, 8
U.S.C. SECS 1101, 1484, PROVIDES BY SEC 352: 

"(A) A PERSON WHO HAS BECOME A NATIONAL BY NATURALIZATION SHALL LOSE
HIS NATIONALITY BY - 

"(1) HAVING A CONTINUOUS RESIDENCE FOR THREE YEARS IN THE TERRITORY
OF A FOREIGN STATE OF WHICH HE WAS FORMERLY A NATIONAL OR IN WHICH THE
PLACE OF HIS BIRTH IS SITUATED, EXCEPT AS PROVIDED IN SECTION 353 OF
THIS TITLE,  (FN1)  WHETHER SUCH RESIDENCE COMMENCED BEFORE OR AFTER
THE EFFECTIVE DATE OF THIS ACT  ...  ." 

APPELLANT, A GERMAN NATIONAL BY BIRTH, CAME TO THIS COUNTRY WITH HER
PARENTS WHEN A SMALL CHILD, ACQUIRED DERIVATIVE AMERICAN CITIZENSHIP AT
THE AGE OF 16 THROUGH HER MOTHER, AND, AFTER GRADUATING FROM SMITH
COLLEGE, WENT ABROAD FOR POSTGRADUATE WORK.  IN 1956 WHILE IN FRANCE
SHE BACAME ENGAGED TO A GERMAN NATIONAL, RETURNED HERE BRIEFLY, AND
DEPARTED FOR GERMANY, WHERE SHE MARRIED AND WHERE SHE HAS RESIDED EVER
SINCE.  SINCE HER MARRIAGE SHE HAS RETURNED TO THIS COUNTRY ON TWO
OCCASIONS FOR VISITS.  HER HUSBAND IS A LAWYER IN COLOGNE WHERE
APPELLANT HAS BEEN LIVING.  TWO OF HER FOUR SONS, BORN IN GERMANY, ARE
DUAL NATIONALS, HAVING ACQUIRED AMERICAN CITIZENSHIP UNDER SEC
301(A)(7) OF THE 1952 ACT.  THE AMERICAN CITIZENSHIP OF THE OTHER TWO
TURNS ON THIS CASE.  IN 1959 THE UNITED STATES DENIED HER A PASSPORT,
THE STATE DEPARTMENT CERTIFYING THAT SHE HAD LOST HER AMERICAN
CITIZENSHIP UNDER SEC 352(A)(1), QUOTED ABOVE.  APPELLANT SUED FOR A
DECLARATORY JUDGMENT THAT SHE STILL IS AN AMERICAN CITIZEN.  THE
DISTRICT COURT HELD AGAINST HER, 218 F. SUPP. 302, AND THE CASE IS HERE
ON APPEAL.  (FN2)  375 U.S. 893. 

THE SOLICITOR GENERAL MAKES HIS CASE ALONG THE FOLLOWING LINES. 

OVER A PERIOD OF MANY YEARS THIS GOVERNMENT HAS BEEN SERIOUSLY
CONCERNED BY SPECIAL PROBLEMS ENGENDERED WHEN NATURALIZED CITIZENS
RETURN FOR A LONG PERIOD TO THE COUNTRIES OF THEIR FORMER
NATIONALITIES.  IT IS UPON THIS PREMISE THAT THE ARGUMENT DERIVES THAT
CONGRESS, THROUGH ITS POWER OVER FOREIGN RELATIONS, HAS THE POWER TO
DEPRIVE SUCH CITIZENS OF THEIR CITIZENSHIP. 

OTHER NATIONS, IT IS SAID, FREQUENTLY ATTEMPT TO TREAT SUCH PERSONS
AS THEIR OWN CITIZENS, THUS EMBROILING THE UNITED STATES IN CONFLICTS
WHEN IT ATTEMPTS TO AFFORD THEM PROTECTION.  IT IS ARGUED THAT
EXPATRIATION IS AN ALTERNATIVE TO WITHDRAWAL OF DIPLOMATIC PROTECTION. 
IT IS ALSO ARGUED THAT CONGRESS REASONABLY CAN PROTECT AGAINST THE
TENDENCY OF THREE YEARS' RESIDENCE IN A NATURALIZED CITIZEN'S FORMER
HOMELAND TO WEAKEN HIS OR HER ALLEGIANCE TO THIS COUNTRY.  THE ARGUMENT
CONTINUES THAT IT IS NOT INVIDIOUS DISCRIMINATION FOR CONGRESS TO TREAT
SUCH NATURALIZED CITIZENS DIFFERENTLY FROM THE MANNER IN WHICH IT
TREATS NATIVE-BORN CITIZENS AND THAT CONGRESS HAS THE RIGHT TO
LEGISLATE WITH RESPECT TO THE GENERAL CLASS WITHOUT REGARD TO EACH
FACTUAL VIOLATION.  IT IS FINALLY ARGUED THAT CONGRESS HERE, UNLIKE THE
SITUATION IN KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144, WAS AIMING ONLY
TO REGULATE AND NOT TO PUNISH AND THAT WHAT CONGRESS DID HAD BEEN
DEEMED APPROPRIATE NOT ONLY BY THIS COUNTRY BUT BY MANY OTHERS AND IS
IN KEEPING WITH TRADITIONAL AMERICAN CONCEPTS OF CITIZENSHIP. 

WE START FROM THE PREMISE THAT THE RIGHTS OF CITIZENSHIP OF THE
NATIVE BORN AND OF THE NATURALIZED PERSON ARE OF THE SAME DIGNITY AND
ARE COEXTENSIVE.  THE ONLY DIFFERENCE DRAWN BY THE CONSTITUTION IS THAT
ONLY THE "NATURAL BORN" CITIZEN IS ELIGIBLE TO BE PRESIDENT.  ART. II,
SEC 1. 

WHILE THE RIGHTS OF CITIZENSHIP OF THE NATIVE BORN DERIVE FROM SEC 1
OF THE FOURTEENTH AMENDMENT AND THE RIGHTS OF THE NATURALIZED CITIZEN
DERIVE FROM SATISFYING, FREE OF FRAUD, THE REQUIREMENTS SET BY
CONGRESS, THE LATTER, APART FROM THE EXCEPTION NOTED, "BECOMES A MEMBER
OF THE SOCIETY, POSSESSING ALL THE RIGHTS OF A NATIVE CITIZEN, AND
STANDING, IN THE VIEW OF THE CONSTITUTION, ON THE FOOTING OF A NATIVE. 
THE CONSTITUTION DOES NOT AUTHORIZE CONGRESS TO ENLARGE OR ABRIDGE
THOSE RIGHTS.  THE SIMPLE POWER OF THE NATIONAL LEGISLATURE, IS TO
PRESCRIBE A UNIFORM RULE OF NATURALIZATION, AND THE EXERCISE OF THIS
POWER EXHAUSTS IT, SO FAR AS RESPECTS THE INDIVIDUAL."  OSBORN V. BANK
OF UNITED STATES, 9 WHEAT.  738, 827.  AND SEE LURIA V. UNITED STATES,
231 U.S. 9, 22; UNITED STATES V. MACINTOSH, 283 U.S. 605, 624; KNAUER
V. UNITED STATES, 328 U.S. 654, 658. 

VIEWS OF THE JUSTICES HAVE VARIED WHEN IT COMES TO THE PROBLEM OF
EXPATRIATION. 

THERE IS ONE VIEW THAT THE POWER OF CONGRESS TO TAKE AWAY CITIZENSHIP
FOR ACTIVITIES OF THE CITIZEN IS NONEXISTENT ABSENT EXPATRIATION BY THE
VOLUNTARY RENUNCIATION OF NATIONALITY AND ALLEGIANCE.  SEE PEREZ V.
BROWNELL, 356 U.S. 44, 79 (DISSENTING OPINION OF JUSTICES BLACK AND
DOUGLAS); TROP V. DULLES, 356 U.S. 86 (OPINION BY CHIEF JUSTICE
WARREN).  THAT VIEW HAS NOT YET COMMANDED A MAJORITY OF THE ENTIRE
COURT.  HENCE WE ARE FACED WITH THE ISSUE PRESENTED AND DECIDED IN
PEREZ V. BROWNELL, SUPRA, I.E., WHETHER THE PRESENT ACT VIOLATES DUE
PROCESS.  THAT IN TURN COMES TO THE QUESTION PUT IN THE FOLLOWING WORDS
IN PEREZ: 

"IS THE MEANS, WITHDRAWAL OF CITIZENSHIP, REASONABLY CALCULATED TO
EFFECT THE END THT IS WITHIN THE POWER OF CONGRESS TO ACHIEVE, THE
AVOIDANCE OF EMBARRASSMENT IN THE CONDUCT OF OUR FOREIGN RELATIONS  ...
?"  356 U.S., AT 60. 

IN THAT CASE, WHERE AN AMERICAN CITIZEN VOTED IN A FOREIGN ELECTION,
THE ANSWER WAS IN THE AFFIRMATIVE.  IN THE PRESENT CASE THE QUESTION IS
WHETHER THE SAME ANSWER SHOULD BE GIVEN MERELY BECAUSE THE NATURALIZED
CITIZEN LIVED IN HER FORMER HOMELAND CONTINUOUSLY FOR THREE YEARS.  WE
THINK NOT. 

SPEAKING OF THE PROVISION IN THE NATIONALITY ACT OF 1940, WHICH WAS
THE PREDECESSOR OF SEC 352(A)(1), CHAIRMAN DICKSTEIN OF THE HOUSE SAID
THAT THE BILL WOULD "RELIEVE THIS COUNTRY OF THE RESPONSIBILITY OF
THOSE WHO RESIDE IN FOREIGN LANDS AND ONLY CLAIM CITIZENSHIP WHEN IT
SERVES THEIR PURPOSE."  86 CONG. REC. 11944.  AND THE SENATE REPORT ON
THE 1940 BILL STATED: 

"THESE PROVISIONS FOR LOSS OF NATIONALITY BY RESIDENCE ABROAD WOULD
GREATLY LESSEN THE TASK OF THE UNITED STATES IN PROTECTING THROUGH THE
DEPARTMENT OF STATE NOMINAL CITIZENS OF THIS COUNTRY WHO ARE ABROAD BUT
WHOSE REAL INTERESTS, AS SHOWN BY THE CONDITIONS OF THEIR FOREIGN STAY,
ARE NOT IN THIS COUNTRY."  S. REP. NO. 2150, 76TH CONG., 3D SESS., P.
4. 

AS STATED BY JUDGE FAHY, DISSENTING BELOW, SUCH LEGISLATION, TOUCHING
AS IT DOES ON THE "MOST PRECIOUS RIGHT" OF CITIZENSHIP (KENNEDY V.
MENDOZA-MARTINEZ, 372 U.S., AT 159), WOULD HAVE TO BE JUSTIFIED UNDER
THE FOREIGN RELATIONS POWER "BY SOME MORE URGENT PUBLIC NECESSITY THAN
SUBSTITUTING ADMINISTRATIVE CONVENIENCE FOR THE INDIVIDUAL RIGHT OF
WHICH THE CITIZEN IS DEPRIVED."  218 F. SUPP. 302, 320. 

IN KENNEDY V. MENDOZA-MARTINEZ, SUPRA, A DIVIDED COURT HELD THAT IT
WAS BEYOND THE POWER OF CONGRESS TO DEPRIVE AN AMERICAN OF HIS
CITIZENSHIP AUTOMATICALLY AND WITHOUT ANY PRIOR JUDICIAL OR
ADMINISTRATIVE PROCEEDINGS BECAUSE HE LEFT THE UNITED STATES IN TIME OF
WAR TO EVADE OR AVOID TRAINING OR SERVICE IN THE ARMED FORCES.  THE
COURT HELD THAT IT WAS AN UNCONSTITUTIONAL USE OF CONGRESSIONAL POWER
BECAUSE IT TOOK AWAY CITIZENSHIP AS PUNISHMENT FOR THE OFFENSE OF
REMAINING OUTSIDE THE COUNTRY TO AVOID MILITARY SERVICE, WITHOUT, AT
THE SAME TIME, AFFORDING HIM THE PROCEDURAL SAFEGUARDS GRANTED BY THE
FIFTH AND SIXTH AMENDMENTS.  YET EVEN THE DISSENTERS, WHO FELT THAT
FLIGHT OR ABSENCE TO EVADE THE DUTY OF HELPING TO DEFEND THE COUNTRY IN
TIME OF WAR AMOUNTED TO MANIFEST NONALLEGIANCE, MADE A RESERVATION. 
JUSTICE STEWART STATED: 

"PREVIOUS DECISIONS HAVE SUGGESTED THAT CONGRESSIONAL EXERCISE OF THE
POWER TO EXPATRIATE MAY BE SUBJECT TO A FURTHER CONSTITUTIONAL
RESTRICTION - A LIMITATION UPON THE KIND OF ACTIVITY WHICH MAY BE MADE
THE BASIS OF DENATIONALIZATION.  WITHDRAWAL OF CITIZENSHIP IS A DRASTIC
MEASURE.  MOREOVER, THE POWER TO EXPATRIATE ENDOWS GOVERNMENT WITH
AUTHORITY TO DEFINE AND TO LIMIT THE SOCIETY WHICH IT REPRESENTS AND TO
WHICH IT IS RESPONSIBLE. 

"THIS COURT HAS NEVER HELD THAT CONGRESS' POWER TO EXPATRIATE MAY BE
USED UNSPARINGLY IN EVERY AREA IN WHICH IT HAS GENERAL POWER TO ACT. 
OUR PREVIOUS DECISIONS UPHOLDING INVOLUNTARY DENATIONALIZATION ALL
INVOLVED CONDUCT INCONSISTENT WITH UNDILUTED ALLEGIANCE TO THIS
COUNTRY."  372 U.S., AT 214. 

THIS STATUTE PROCEEDS ON THE IMPERMISSIBLE ASSUMPTION THAT
NATURALIZED CITIZENS AS A CLASS ARE LESS RELIABLE AND BEAR LESS
ALLEGIANCE TO THIS COUNTRY THAN DO THE NATIVE BORN.  THIS IS AN
ASSUMPTION THAT IS IMPOSSIBLE FOR US TO MAKE.  MOREOVER, WHILE THE
FIFTH AMENDMENT CONTAINS NO EQUAL PROTECTION CLAUSE, IT DOES FORBID
DISCRIMINATION THAT IS "SO UNJUSTIFIABLE AS TO BE VIOLATIVE OF DUE
PROCESS."  BOLLING V. SHARPE, 347 U.S. 497, 499.  A NATIVE-BORN CITIZEN
IS FREE TO RESIDE ABROAD INDEFINITELY WITHOUT SUFFERING LOSS OF
CITIZENSHIP.  THE DISCRIMINATION AIMED AT NATURALIZED CITIZENS
DRASTICALLY LIMITS THEIR RIGHTS TO LIVE AND WORK ABROAD IN A WAY THAT
OTHER CITIZENS MAY.  IT CREATES INDEED A SECOND-CLASS CITIZENSHIP. 
LIVING ABROAD, WHETHER THE CITIZEN BE NATURALIZED OR NATIVE BORN, IS NO
BADGE OF LACK OF ALLEGIANCE AND IN NO WAY EVIDENCES A VOLUNTARY
RENUNCIATION OF NATIONALITY AND ALLEGIANCE.  IT MAY INDEED BE COMPELLED
BY FAMILY, BUSINESS, OR OTHER LEGITIMATE REASONS.  REVERSED. 

FN1  THE EXCEPTIONS RELATE, INTER ALIA, TO RESIDENCE ABROAD IN THE
EMPLOYMENT OF THE UNITED STATES AND ARE NOT RELEVANT HERE. 

FN2  FOR OTHER ASPECTS OF THE CASE SEE 372 U.S. 224. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

THE APPELLANT, A DERIVATIVE CITIZEN SINCE 1950, HAS VOLUNTARILY
ABSENTED HERSELF FROM THE UNITED STATES FOR OVER A DECADE, LIVING IN
HER NATIVE GERMANY FOR THE LAST EIGHT YEARS.  IN 1956 SHE MARRIED A
GERMAN CITIZEN THERE; SHE HAS SINCE BORNE FOUR (GERMAN NATIONAL) SONS
THERE, AND NOW SAYS SHE HAS NO INTENTION TO RETURN TO THE UNITED
STATES. 

I, TOO, SYMPATHIZE WITH THE APPELLANT FOR THE DILEMMA IN WHICH SHE
HAS PLACED HERSELF THROUGH HER MARRIAGE TO A FOREIGN CITIZEN.  BUT THE
POLICY OF OUR COUNTRY IS INVOLVED HERE, NOT JUST HER PERSONAL
CONSIDERATION.  I CANNOT SAY THAT CONGRESS MADE HER A SECOND-CLASS
CITIZEN BY ENACTING SEC 352(A)(1) OF THE IMMIGRATION AND NATIONALITY
ACT OF 1952, 66 STAT.  269, 8 U.S.C. SEC 1484, PLACING A "BADGE OF LACK
OF ALLEGIANCE" UPON HER BECAUSE SHE CHOSE TO LIVE PERMANENTLY ABROAD IN
HER NATIVE LAND.  IF THERE IS SUCH A CITIZENSHIP OR BADGE, APPELLANT,
NOT THE CONGRESS, CREATED IT THROUGH HER OWN ACTIONS.  ALL THAT
CONGRESS DID WAS FACE UP TO PROBLEMS OF THE HIGHEST NATIONAL IMPORTANCE
BY AUTHORIZING EXPATRIATION, THE ONLY ADEQUATE REMEDY.  APPELLANT, WITH
HER EYES OPEN TO THE RESULT, CHOSE BY HER ACTION TO RENOUNCE HER
DERIVATIVE CITIZENSHIP.  OUR CASES HAVE SO INTERPRETED SUCH ACTION FOR
HALF A CENTURY.  MACKENZIE V. HARE, 239 U.S. 299 (1915).  AS APPLIED TO
HER I CANNOT SAY, AS DOES THE COURT, THAT THE COMMAND OF CONGRESS IN
SEC 352(A)(1) IS DISCRIMINATORY AND, THEREFORE, VIOLATIVE OF DUE
PROCESS.  MACKENZIE DECIDED JUST THE CONTRARY, UPHOLDING A STATUTE
WHICH PROVIDED THAT, ALTHOUGH AN AMERICAN MALE DID NOT SUFFER LOSS OF
CITIZENSHIP DURING MARRIAGE TO A FOREIGN CITIZEN, AN AMERICAN WOMAN
DID.  HERE THE APPELLANT HAD STATUTORY NOTICE OF THE REQUIREMENT; SHE
VOLUNTARILY ACTED IN DISREGARD OF IT FOR EIGHT YEARS, INTENDS TO
CONTINUE TO DO SO, AND IN MY VIEW HAS THEREFORE RENOUNCED HER
CITIZENSHIP. 

                                         I. 

THERE IS NOTHING NEW ABOUT THE PRACTICE OF EXPATRIATING NATURALIZED
CITIZENS WHO VOLUNTARILY RETURN TO THEIR NATIVE LANDS TO RESIDE.  IT
HAS A LONG-ESTABLISHED AND WIDELY ACCEPTED HISTORY.  OUR CONCEPT OF
CITIZENSHIP WAS INHERITED FROM ENGLAND AND, ACCORDINGLY, WAS BASED ON
THE PRINCIPLE THAT RIGHTS CONFERRED BY NATURALIZATION WERE SUBJECT TO
THE CONDITIONS RESERVED IN THE GRANT.  SEE CALVIN'S CASE, 7 CO. REP. 1
A, 77 ENG. REP. 377 (1608).  IT WAS WITH THIS IN MIND THAT THE FOUNDERS
INCORPORATED ART. I, SEC 8, CL. 4, INTO OUR CONSTITUTION.  THIS CLAUSE
GRANTS CONGRESS THE POWER "TO ESTABLISH AN UNIFORM RULE OF
NATURALIZATION  ...  ."  AND, AS MADISON HIMSELF SAID, THESE WORDS
MEANT THAT THE "NATL.  LEGISLRE.  IS TO HAVE THE RIGHT OF REGULATING
NATURALIZATION, AND CAN BY VIRTUE THEREOF FIX DIFFERENT PERIODS OF
RESIDENCE AS CONDITIONS OF ENJOYING DIFFERENT PRIVILEGES OF CITIZENSHIP
...  ."  II FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 235
(1911).  THIS WAS CONFIRMED DURING THE DEBATE IN THE FIRST CONGRESS ON
THE FIRST NATURALIZATION BILL WHEN ALEXANDER WHITE OF VIRGINIA
SUGGESTED THAT IF THE RESIDENCE REQUIREMENT WERE STRICKEN, "ANOTHER
CLAUSE OUGHT TO BE ADDED, DEPRIVING NATURALIZED PERSONS OF THE
PRIVILEGE OF CITIZENSHIP, WHO LEFT THE COUNTRY AND STAID ABROAD FOR A
GIVEN LENGTH OF TIME."  1 ANNALS OF CONGRESS 1110 (1790).  JAMES
MADISON ANSWERED:    "IT MAY BE A QUESTION OF SOME NICETY, HOW FAR WE
CAN MAKE OUR LAW TO ADMIT AN ALIEN TO THE RIGHT OF CITIZENSHIP, STEP BY
STEP; BUT THERE IS NO DOUBT WE MAY, AND OUGHT TO REQUIRE RESIDENCE AS
AN ESSENTIAL."  ID., AT 1112. 

THE RECORDS SHOW NOT ONLY THAT IT WAS THE CONSENSUS OF THE MEMBERS OF
THE HOUSE THAT STEP-BY-STEP NATURALIZATION WAS PERMISSIBLE BUT ALSO
THAT NOT A WORD WAS SPOKEN AGAINST THE MADISON STATEMENT THAT REQUIRED
RESIDENCE WAS CONSTITUTIONALLY ALLOWED.  THIS DEBATE POINTS UP THE FACT
THAT DISTINCTIONS BETWEEN NATURALIZED AND NATIVE-BORN CITIZENS WERE
UPPERMOST IN THE MINDS OF THE FRAMERS OF THE CONSTITUTION. 

THE RIGHT TO RENOUNCE CITIZENSHIP ACQUIRED AT BIRTH WAS A SERIOUS
QUESTION DURING THE WAR OF 1812.   IN 1814 THE GOVERNMENT, THROUGH
SECRETARY OF STATE MONROE, CIRCULATED AN ANONYMOUS PAMPHLET, A TREATISE
ON EXPATRIATION, WHICH DECLARED THAT "EXPATRIATION  ... IS NOTHING MORE
THAN EMIGRATION, WITH AN INTENTION TO SETTLE PERMANENTLY ABROAD."  AT
21.  SINCE THAT TIME IT HAS TRADITIONALLY BEEN OUR POLICY TO WITHDRAW
DIPLOMATIC PROTECTION FROM NATURALIZED CITIZENS DOMICILED IN THEIR
NATIVE STATES.  SEE, E.G., LETTER FROM SECRETARY OF STATE ADAMS TO
SHALER (1818), III MOORE, DIGEST OF INTERNATIONAL LAW 735-736 (1906);
LETTER FROM UNITED STATES MINISTER TO PRUSSIA WHEATON TO KNOCHE (1840),
S. EXEC. DOC. NO. 38, 36TH CONG., 1ST SESS., 6-7; LETTER FROM SECRETARY
OF STATE FISH TO WING (1871), II WHARTON, DIGEST OF INTERNATIONAL LAW
OF THE UNITED STATES 361-362 (2D ED. 1887); COMMUNICATION FROM
SECRETARY OF STATE HAY TO AMERICAN DIPLOMATS (1899), III MOORE, SUPRA,
AT 950.  DURING ALL THIS PERIOD THE UNITED STATES PROTECTED ALL
CITIZENS ABROAD EXCEPT NATURALIZED ONES RESIDING IN THEIR NATIVE
LANDS.  IN 1868 THE BANCROFT TREATY WAS NEGOTIATED WITH THE NORTH
GERMAN CONFEDERATION.  IT PROVIDED THAT EACH COUNTRY WOULD RECOGNIZE
NATURALIZATION OF ITS NATIVE-BORN CITIZENS BY THE OTHER COUNTRY.  IT
FURTHER PROVIDED THAT "IF A GERMAN NATURALIZED IN AMERICA RENEWS HIS
RESIDENCE IN NORTH GERMANY, WITHOUT THE INTENT TO RETURN TO AMERICA, HE
SHALL BE HELD TO HAVE RENOUNCED HIS NATURALIZATION  ...  AND THE INTENT
NOT TO RETURN MAY BE HELD TO EXIST WHEN THE PERSON NATURALIZED IN THE
ONE COUNTRY RESIDES MORE THAN TWO YEARS IN THE OTHER COUNTRY."  15
STAT. 615, 616-617.  THE UNITED STATES HAS SIMILAR RIGHTS UNDER
EXISTING TREATIES WITH 20 COUNTRIES.  ALL OF THESE RIGHTS WILL BE
STRICKEN BY THE DECISION TODAY. 

IN THE LATE NINETEENTH CENTURY THE GOVERNMENT ADOPTED A PRACTICE OF
INFORMING NATURALIZED CITIZENS RESIDING IN THEIR NATIVE LANDS WITHOUT
INTENT TO RETURN THAT THEY HAD EXPATRIATED THEMSELVES.  THE DOCTRINE
UNDERLYING THIS PROCEDURE HAS SINCE BEEN FOLLOWED ON SEVERAL OCCASIONS
BY COMMISSIONS ARBITRATING THE CLAIMS OF AMERICAN CITIZENS AGAINST
FOREIGN GOVERNMENTS.  SEE III MOORE, HISTORY AND DIGEST OF
INTERNATIONAL ARBITRATIONS 2562-2572, 2579-2581 (1898). 

AS EARLY AT 1863 PRESIDENT LINCOLN HAS SUGGESTED TO CONGRESS THAT IT
"MIGHT BE ADVISABLE TO FIX A LIMIT BEYOND WHICH NO CITIZEN OF THE
UNITED STATES RESIDING ABROAD MAY CLAIM THE INTERPOSITION OF HIS
GOVERNMENT."  7 MESSAGES AND PAPERS OF THE PRESIDENT 3382 (RICHARDSON
ED. 1897).  HOWEVER, NO LEGISLATION WAS ENACTED IN THE NINETEENTH
CENTURY.  IN 1906, AT THE REQUEST OF CONGRESS, SECRETARY OF STATE ELIHU
ROOT APPOINTED A "CITIZENSHIP BOARD" TO CONSIDER THIS AND OTHER RELATED
MATTERS.  THE BOARD'S REPORT STATED: 

"EXPRESSED RENUNCIATION OF AMERICAN CITIZENSHIP IS, HOWEVER,
EXTREMELY RARE; BUT THE CLASS OF AMERICANS WHO SEPARATE THEMSELVES FROM
THE UNITED STATES AND LIVE WITHIN THE JURISDICTION OF FOREIGN COUNTRIES
IS BECOMING LARGER EVERY YEAR, AND THE QUESTION OF THEIR PROTECTION
CAUSES INCREASING EMBARRASSMENT TO THIS GOVERNMENT IN ITS RELATIONS
WITH FOREIGN POWERS."  H. DOC.  NO. 326, 59TH CONG., 2D SESS., 25. 

THE BOARD'S RECOMMENDATIONS LED TO THE ENACTMENT OF THE NATIONALITY
ACT OF 1907, 34 STAT.  1228.  THAT ACT INCLUDED A REBUTTABLE
PRESUMPTION THAT RESIDENCE FOR TWO YEARS IN THE FOREIGN STATE FROM
WHICH A NATURALIZED AMERICAN CITIZEN CAME CONSTITUTED A FORFEITURE OF
AMERICAN CITIZENSHIP.  THIS PROVISION PROVED DIFFICULT TO ADMINISTER
AND IN 1933 PRESIDENT ROOSEVELT APPOINTED A CABINET COMMITTEE (THE
SECRETARY OF STATE, THE ATTORNEY GENERAL AND THE SECRETARY OF LABOR) TO
REVIEW THE NATIONALITY LAWS.  THE COMMITTEE ISSUED AN EXTENSIVE REPORT
AND DRAFT STATUTE WHICH PROVIDED FOR EXPATRIATION OF NATURALIZED
CITIZENS WHO RESIDED CONTINUOUSLY IN THEIR COUNTRY OF ORIGIN FOR THREE
YEARS.  THIS PROVISION WAS INCORPORATED INTO THE NATIONALITY ACT OF
1940, 54 STAT. 1137, 1170, AND WAS CARRIED OVER INTO THE IMMIGRATION
AND NATIONALITY ACT OF 1952, MODIFIED SO AS NOT TO REQUIRE
"UNINTERRUPTED PHYSICAL PRESENCE IN A FOREIGN STATE  ...  ."  66 STAT.
163, 170, 269. 

              II. 

THIS HISTORICAL BACKGROUND POINTS UP THE INTERNATIONAL DIFFICULTIES
WHICH LED TO THE ADOPTION OF THE POLICY ANNOUNCED IN SEC 352(A)(1). 
RESIDENCE OF UNITED STATES NATIONALS ABROAD HAS ALWAYS BEEN THE SOURCE
OF MUCH INTERNATIONAL FRICTION AND THE RULING TODAY WILL EXPAND THESE
DIFFICULTIES TREMENDOUSLY.  IN 1962 ALONE 919 PERSONS EXPATRIATED ON
THE BASIS OF RESIDENCE IN COUNTRIES OF FORMER NATIONALITY.  THE ACTION
OF THE COURT IN VOIDING THESE EXPATRIATIONS WILL CAUSE NO END OF
DIFFICULTIES BECAUSE THOUSANDS OF PERSONS LIVING THROUGHOUT THE WORLD
WILL COME UNDER THE BROAD SWEEP OF THE COURT'S DECISION.  IT IS
ESTIMATED THAT SEVERAL THOUSAND OF THESE AMERICAN EXPATRIATES RESIDE IN
IRON CURTAIN COUNTRIES ALONE.  HEARINGS BEFORE THE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY ON S.
RES.  49, 85TH CONG., 1ST SESS., 133.  THE PROTECTION OF AMERICAN
CITIZENS ABROAD HAS ALWAYS BEEN A MOST SENSITIVE MATTER AND CONTINUES
TO BE SO TODAY.  THIS IS ESPECIALLY TRUE IN BELGIUM, GREECE, FRANCE,
IRAN, ISRAEL, SWITZERLAND AND TURKEY, BECAUSE OF THEIR REFUSAL TO
RECOGNIZE THE EXPATRIATION OF THEIR NATIONALS WHO ACQUIRE AMERICAN
CITIZENSHIP.  THE DISSENSION THAT SPRINGS UP IN SOME OF THESE AREAS
ADDS IMMEASURABLY TO THE DIFFICULTY. 

NOR IS THE UNITED STATES ALONE IN MAKING RESIDENCE ABROAD CAUSE FOR
EXPATRIATION.  ALTHOUGH THE NUMBER OF YEARS OF FOREIGN RESIDENCE VARIES
FROM 2 TO 10 YEARS, 29 COUNTRIES, INCLUDING THE UNITED KINGDOM AND 7
COMMONWEALTH COUNTRIES, EXPATRIATE NATURALIZED CITIZENS RESIDING
ABROAD.  ONLY FOUR - CZECHOSLOVAKIA, POLAND, AFGHANISTAN, AND
YUGOSLAVIA - APPLY EXPATRIATION TO BOTH NATIVE-BORN AND NATURALIZED
CITIZENS.  EVEN THE UNITED NATIONS SANCTIONS DIFFERENT TREATMENT FOR
NATURALIZED AND NATIVE-BORN CITIZENS; ARTICLE 7 OF THE UNITED NATIONS
CONVENTION ON THE REDUCTION OF STATELESSNESS PROVIDES THAT NATURALIZED
CITIZENS WHO RESIDE ABROAD FOR SEVEN YEARS MAY BE EXPATRIATED UNLESS
THEY DECLARE THEIR INTENT TO RETAIN CITIZENSHIP. 

III. 

THE DECISIONS OF THIS COURT HAVE CONSISTENTLY APPROVED THE POWER OF
CONGRESS TO ENACT STATUTES SIMILAR TO THE ONE HERE STRICKEN DOWN. 
BEGINNING WITH MACKENZIE V. HARE, SUPRA, WHERE THE COURT SUSTAINED A
STATUTE SUSPENDING DURING COVERTURE THE CITIZENSHIP OF A NATIVE-BORN
AMERICAN WOMAN WHO MARRIED A FOREIGNER, THE COURT HAS INVARIABLY UPHELD
EXPATRIATION WHEN THERE IS A CONCURRENCE ON THE PART OF THE CITIZEN. 
IN MACKENZIE EXACTLY THE SAME ARGUMENT WAS MADE THAT APPELLANT URGES
HERE.  INDEED, THE COURT USES THE SAME OPINION IN THIS CASE TO STRIKE
DOWN SEC 352(A)(1) AS WAS URGED IN MACKENZIE, NAMELY, OSBORN V. BANK OF
THE UNITED STATES, 9 WHEAT.  738 (1824), WHERE CHIEF JUSTICE MARSHALL
REMARKED: "THE CONSTITUTION DOES NOT AUTHORIZE CONGRESS TO ENLARGE OR
ABRIDGE  ...  THE RIGHTS" OF CITIZENS.  AT 827.  BUT THE COURT IN
MACKENZIE, WITHOUT DISSENT ON THE MERITS, HELD: 

"IT MAY BE CONCEDED THAT A CHANGE OF CITIZENSHIP CANNOT BE
ARBITRARILY IMPOSED, THAT IS, IMPOSED WITHOUT THE CONCURRENCE OF THE
CITIZEN.  THE LAW IN CONTROVERSY DOES NOT HAVE THAT FEATURE.  IT DEALS
WITH A CONDITION VOLUNTARILY ENTERED INTO (MARRIAGE), WITH NOTICE OF
THE CONSEQUENCES.  WE CONCUR WITH COUNSEL THAT CITIZENSHIP IS OF
TANGIBLE WORTH, AND WE SYMPATHIZE WITH PLAINTIFF IN HER DESIRE TO
RETAIN IT AND HER EARNEST ASSERTION OF IT.  BUT THERE IS INVOLVED MORE
THAN PERSONAL CONSIDERATIONS.  AS WE HAVE SEEN, THE LEGISLATION WAS
URGED BY CONDITIONS OF NATIONAL MOMENT  ...  .  THIS IS NO ARBITRARY
EXERCISE OF GOVERNMENT.  IT IS ONE WHICH, REGARDING THE INTERNATIONAL
ASPECTS, JUDICIAL OPINION HAS TAKEN FOR GRANTED WOULD NOT ONLY BE VALID
BUT DEMANDED."  AT 311-312. 

AND LATER IN SAVORGNAN V. UNITED STATES, 338 U.S. 491 (1950), WE
APPROVED THE DOCTRINE OF MACKENZIE, SUPRA.  SIX YEARS AGO IN PEREZ V.
BROWNELL, 356 U.S. 44 (1958), WE HELD THAT AN AMERICAN CITIZEN VOTING
IN A FOREIGN ELECTION EXPATRIATED HIMSELF UNDER SEC 401 OF THE
NATIONALITY ACT OF 1940, 54 STAT. 1137.  WE AGAIN CITED MACKENZIE,
SUPRA, WITH APPROVAL, DESCRIBING THE CENTRAL ISSUE IN EXPATRIATION
CASES: 

"AS IMPORTING NOT ONLY SOMETHING LESS THAN COMPLETE AND UNSWERVING
ALLEGIANCE TO THE UNITED STATES BUT ALSO ELEMENTS OF AN ALLEGIANCE TO
ANOTHER COUNTRY IN SOME MEASURE, AT LEAST, INCONSISTENT WITH AMERICAN
CITIZENSHIP."  AT 61. 

THE PRESENT CASE CERTAINLY MEETS THIS TEST.  APPELLANT'S PROLONGED
RESIDENCE IN HER FORMER HOMELAND, THE ALLEGIANCE HER HUSBAND AND
CHILDREN OWE TO IT, AND HER INTENTION NOT TO RETURN TO THE UNITED
STATES ALL SHOW SOME MEASURE OF ALLEGIANCE TO GERMANY.  AT THE VERY
LEAST, THESE FACTORS SHOW MUCH LESS THAN "UNSWERVING ALLEGIANCE TO THE
UNITED STATES" AND ARE "INCONSISTENT WITH AMERICAN CITIZENSHIP." 
INDEED, IN THIS RESPECT THE INSTANT CASE IS MUCH STRONGER THAN
MACKENZIE, SUPRA. 

THE COURT BASES ITS DECISION ON THE FACT THAT SEC 352(A)(1) APPLIES
ONLY TO NATURALIZED, NOT NATIVE-BORN, CITIZENS.  IT SAYS THIS RESULTS
IN A DISCRIMINATION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  I THINK THAT IN SO DOING THE COURT OVERSPEAKS ITSELF.  IF
CONGRESS HAS THE POWER TO EXPATRIATE ALL CITIZENS, AS THE COURT'S
POSITION IMPLIES, IT WOULD CERTAINLY HAVE LIKE POWER TO ENACT A MORE
NARROWLY CONFINED STATUTE AIMED ONLY AT THOSE CITIZENS WHOSE PRESENCE
IN THEIR NATIVE HOMELANDS CAN EMBROIL THE UNITED STATES IN CONFLICT
WITH SUCH COUNTRIES.  AS THE HISTORY SHOWS, THE NATURALIZED CITIZEN WHO
RETURNS TO HIS HOMELAND IS OFTEN THE CAUSE OF THE DIFFICULTIES.  THIS
FACT IS RECOGNIZED BY THE POLICY OF THIS COUNTRY AND OF 25 OTHERS AND
BY A UNITED NATIONS CONVENTION AS WELL.  THROUGH SEC. 352(A)(1),
CONGRESS HAS RESTRICTED ITS REMEDY TO CORRECTION OF THE PRECISE
SITUATIONS WHICH HAVE CAUSED THE PROBLEM.  IN ADOPTING THE
CLASSIFICATION "NATURALIZED CITIZEN" HAS THE CONGRESS ACTED WITH
REASON?  MANY TIMES THIS COURT HAS UPHELD CLASSIFICATIONS OF MORE
SIGNIFICANCE.  HIRABAYASHI V. UNITED STATES, 320 U.S. 81 (1943)(CURFEW
IMPOSED ON PERSONS OF JAPENESE ANCESTRY, REGARDLESS OF CITIZENSHIP, IN
MILITARY AREAS DURING WAR); HEIM V. MCCALL, 239 U.S. 175 (1915)(ALIENS
NOT EMPLOYABLE ON PUBLIC WORKS PROJECTS); TERRACE V. THOMPSON, 263 U.S.
197 (1923) AND PORTERFIELD V. WEBB, 263 U.S. 225 (1923) (ALIENS WHO
WERE INELIGIBLE FOR CITIZENSHIP NOT PERMITTED TO HOLD LAND FOR FARMING
OR OTHER PURPOSES); OHIO EX REL. CLARKE V. DECKEBACH, 274 U.S. 392
(1927)(ALIENS NOT PERMITTED TO CONDUCT POOL AND BILLIARD ROOMS).  AS IN
MACKENZIE V. HARE, SUPRA, THESE CASES WERE SUSTAINED ON THE BASIS THAT
THE CLASSIFICATION WAS REASONABLY DEVISED TO MEET A DEMONSTRATED NEED. 
DISTINCTIONS BETWEEN NATIVE-BORN AND NATURALIZED CITIZENS IN CONNECTION
WITH FOREIGN RESIDENCE ARE DRAWN IN THE CONSTITUTION ITSELF.  ONLY A
NATIVE-BORN MAY BECOME PRESIDENT, ART. II, SEC 1.  A NATURALIZED
CITIZEN MUST WAIT SEVEN YEARS AFTER HE OBTAINS HIS CITIZENSHIP BEFORE
HE IS ELIGIBLE TO SIT IN THE HOUSE, ART. I, SEC 2.  FOR THE SENATE, THE
WAITING PERIOD IS NINE YEARS, ART. I, SEC 3.  DO THESE PROVISIONS
CREATE A SECOND-CLASS CITIZENSHIP OR PLACE A "BADGE OF LACK OF
ALLEGIANCE" ON THOSE CITIZENS?  IT HAS NEVER BEEN THOUGHT SO UNTIL
TODAY.  AS I HAVE SHOWN, IN THE DEBATE IN THE FIRST CONGRESS ON THE
FIRST NATURALIZATION BILL, IT WAS PROPOSED TO EXPATRIATE NATURALIZED
CITIZENS WHO RESIDED ABROAD.  DURING THE ENTIRE NINETEENTH CENTURY ONLY
NATURALIZED CITIZENS WERE, AS A GENERAL RULE, EXPATRIATED ON THE
GROUNDS OF FOREIGN RESIDENCE, AND FOR NEARLY 100 YEARS OUR
NATURALIZATION TREATIES HAVE CONTAINED PROVISIONS AUTHORIZING THE
EXPATRIATION OF NATURALIZED CITIZENS RESIDING IN THEIR NATIVE LANDS. 
INDEED, DURING THE CONSIDERATION OF THE 1952 ACT, NOT A SINGLE WITNESS
SPECIFICALLY OBJECTED TO SEC 352(A)(1).  EVEN THE AMERICANS FOR
DEMOCRATIC ACTION SUGGESTED THAT IT WAS A REASONABLE REGULATION.  IT IS
A LITTLE LATE FOR THE COURT TO DECIDE IN THE FACE OF THIS MOUNTAIN OF
EVIDENCE THAT THE SECTION HAS SUDDENLY BECOME SO INVIDIOUS THAT IT MUST
BE STRICKEN AS ARBITRARY UNDER THE DUE PROCESS CLAUSE. 

KENNEDY V. MENDOZA-MARTINEZ, 372 U.S. 144 (1963), IS NOT APPOSITE. 
THERE EXPATRIATION FOR THE OFFENSE OF REMAINING OUTSIDE THE COUNTRY TO
AVOID MILITARY SERVICE WAS HELD TO CONSTITUTE PUNISHMENT WITHOUT A
CRIMINAL TRIAL.  THE MAJORITY HERE INDICATES THAT A RESERVATION MADE BY
MR. JUSTICE STEWART IN HIS DISSENT IN THAT CASE SUPPORTS ITS PRESENT
VIEW.  I THINK NOT.  INDEED, MY BROTHER STEWART'S CONCLUSION THAT OUR
CASES "UPHOLDING INVOLUNTARY DENATIONALIZATION ALL INVOLVED CONDUCT
INCONSISTENT WITH UNDILUTED ALLEGIANCE TO THIS COUNTRY," AT 214, FITS
THIS CASE LIKE A GLOVE.  HERE APPELLANT HAS BEEN AWAY FROM THE COUNTRY
FOR 10 YEARS, HAS MARRIED A FOREIGN CITIZEN, HAS CONTINUOUSLY LIVED
WITH HIM IN HER NATIVE LAND FOR EIGHT YEARS, HAS BORNE FOUR SONS WHO
ARE GERMAN NATIONALS, AND ADMITS THAT SHE HAS NO INTENTION TO RETURN TO
THIS COUNTRY.  SHE WISHES TO RETAIN HER CITIZENSHIP ON A STANDBY BASIS
FOR HER OWN BENEFIT IN THE EVENT OF TROUBLE.  THERE IS NO
CONSTITUTIONAL NECESSITY FOR CONGRESS TO ACCEDE TO HER WISH.    I
DISSENT. 
..END :
























CLAY V. SUN INSURANCE OFFICE, LTD. 377 U.S. 179 


NO. 470.  ARGUED APRIL 28, 1964.  - DECIDED MAY 18, 1964.  - 319 F.2D
505, REVERSED. 


PETITIONER, A FEW MONTHS AFTER PURCHASING FROM RESPONDENT INSURANCE
COMPANY IN THE STATE WHERE HE THEN RESIDED A PERSONAL PROPERTY FLOATER
INSURANCE POLICY, WHICH BARRED A CLAIM THEREUNDER TWELVE MONTHS AFTER
DISCOVERY OF LOSS, MOVED TO AND BECAME A RESIDENT OF THE FORUM STATE,
WHICH PERMITTED CLAIMS UP TO FIVE YEARS AFTER LOSS NOTWITHSTANDING
CONTRACT PROVISIONS REQUIRING EARLIER LEGAL ACTION.  INVOKING DIVERSITY
JURISDICTION, PETITIONER BROUGHT THIS ACTION IN THE FEDERAL DISTRICT
COURT OF THE FORUM STATE TO RECOVER DAMAGES UNDER THE POLICY MORE THAN
A YEAR AFTER DISCOVERY OF THE LOSS WHICH OCCURRED IN THAT STATE.  AFTER
CERTIFICATION TO AND RESOLUTION BY THE STATE SUPREME COURT OF CERTAIN
LOCAL LAW QUESTIONS FOLLOWING REMAND BY THIS COURT, THE COURT OF
APPEALS HELD THAT APPLICATION TO THE CONTRACT OF THE FIVE-YEAR STATUTE
OF LIMITATIONS WOULD VIOLATE DUE PROCESS.  HELD:  APPLICATION OF THE
STATUTE OF LIMITATIONS OF THE FORUM STATE IS CONSISTENT WITH DUE
PROCESS AND FULL FAITH AND CREDIT REQUIREMENTS, WHERE THE ACTIVITIES OF
THE PARTIES TO AN AMBULATORY PERSONAL PROPERTY INSURANCE CONTRACT WERE
AMPLE WITHIN THE FORUM STATE; THE POLICY MADE NO PROVISION THAT THE LAW
OF THE STATE OF CONTRACT WOULD GOVERN; RESPONDENT INSURANCE COMPANY HAD
KNOWLEDGE WHEN IT SOLD THE POLICY THAT THE PETITIONER MIGHT MOVE HIS
PROPERTY ANYWHERE; AND IT KNEW THAT HE HAD MOVED TO THE FORUM STATE,
WHERE RESPONDENT WAS ALSO LICENSED TO DO BUSINESS AND MUST HAVE KNOWN
THAT IT COULD BE SUED.  PP. 180-183. 

CLAY V. SUN INSURANCE OFFICE, LTD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, WHICH INVOKED THE DIVERSITY JURISDICTION OF THE FEDERAL
DISTRICT COURT IN A SUIT TO RECOVER DAMAGES UNDER AN INSURANCE POLICY,
WAS HERE BEFORE.  363 U.S. 207.  THE INITIAL QUESTION THEN AS NOW IS
WHETHER THE 12-MONTH-SUIT CLAUSE IN THE POLICY GOVERNS, IN WHICH EVENT
THE CLAIM IS BARRED, OR WHETHER FLORIDA'S STATUTES  (FN1)  NULLIFYING
SUCH CLAUSES IF THEY REQUIRE SUIT TO BE FILED IN LESS THAN FIVE YEARS
ARE APPLICABLE AND VALID, IN WHICH EVENT THE SUIT IS TIMELY.  THE
POLICY WAS PURCHASED BY PETITIONER IN ILLINOIS WHILE HE WAS A CITIZEN
AND RESIDENT OF THAT STATE.  RESPONDENT, A BRITISH COMPANY, IS LICENSED
TO DO BUSINESS IN ILLINOIS, FLORIDA, AND SEVERAL OTHER STATES. 

A FEW MONTHS AFTER PURCHASING THE POLICY, PETITIONER MOVED TO FLORIDA
AND BECAME A CITIZEN AND RESIDENT OF THAT STATE; AND IT WAS IN FLORIDA
THAT THE LOSS OCCURRED TWO YEARS LATER.  WHEN THE CASE REACHED HERE,
THE MAJORITY VIEW WAS THAT THE UNDERLYING CONSTITUTIONAL QUESTION -
WHETHER CONSISTENTLY WITH DUE PROCESS, FLORIDA COULD APPLY ITS FIVE
YEAR STATUTE TO THIS ILLINOIS CONTRACT - SHOULD NOT BE REACHED UNTIL
THE FLORIDA SUPREME COURT, THROUGH ITS CERTIFICATE PROCEDURE,  (FN2)
HAD CONSTRUED THAT STATUTE AND RESOLVED ANOTHER LOCAL LAW QUESTION. 
(FN3)  ON REMAND THE COURT OF APPEALS CERTIFIED THE TWO QUESTIONS TO
THE FLORIDA SUPREME COURT, WHICH ANSWERED BOTH QUESTIONS IN
PETITIONER'S FAVOR.  133 SO. 2D 735.  THEREAFTER THE COURT OF APPEALS
HELD THAT IT WAS NOT COMPATIBLE WITH DUE PROCESS FOR FLORIDA TO APPLY
ITS FIVE-YEAR STATUTE TO THIS CONTRACT AND THAT JUDGMENT SHOULD BE
ENTERED FOR RESPONDENT.  319 F.2D 505.  WE AGAIN GRANTED CERTIORARI. 
375 U.S. 929. 

WHILE THERE ARE ILLINOIS CASES INDICATING THAT PARTIES MAY CONTRACT -
AS HERE - FOR A SHORTER PERIOD OF LIMITATIONS THAN IS PROVIDED BY THE
ILLINOIS STATUTE,  (FN4)  WE ARE REFERRED TO NO ILLINOIS DECISION
EXTENDING THAT RULE INTO OTHER STATES WHENEVER CLAIMS ON ILLINOIS
CONTRACTS ARE SOUGHT TO BE ENFORCED THERE.  WE SEE NO DIFFICULTY
WHATEVER UNDER EITHER THE FULL FAITH AND CREDIT CLAUSE OR THE DUE
PROCESS CLAUSE.  WE DEAL WITH AN AMBULATORY CONTRACT ON WHICH SUIT
MIGHT BE BROUGHT IN ANY ONE OF SEVERAL STATES.  NORMALLY, AS THE COURT
HELD IN PACIFIC EMPLOYERS INS. CO. V. INDUSTRIAL ACCIDENT COMM'N, 306
U.S. 493, 502, A STATE HAVING JURISDICTION OVER A CLAIM DERIVING FROM
AN OUT-OF-STATE EMPLOYMENT CONTRACT NEED NOT SUBSTITUTE THE CONFLICTING
STATUTE OF THE OTHER STATE (WORKMEN'S COMPENSATION) FOR ITS OWN STATUTE
(WORKMEN'S COMPENSATION) - WHERE THE EMPLOYEE WAS INJURED IN THE COURSE
OF HIS EMPLOYMENT WHILE TEMPORARILY IN THE LATTER STATE.  WE FOLLOWED
THE SAME ROUTE IN WATSON V. EMPLOYERS LIABILITY ASSURANCE CORP., 348
U.S. 66, WHERE WE UPHELD A STATE STATUTE ALLOWING DIRECT ACTIONS
AGAINST LIABILITY INSURANCE COMPANIES IN THE STATE OF THE FORUM, EVEN
THOUGH A CLAUSE IN THE CONTRACT, BINDING IN THE STATE WHERE IT WAS
MADE, PROHIBITED DIRECT ACTION AGAINST THE INSURER UNTIL FINAL
DETERMINATION OF THE OBLIGATION OF THE INSURED. 

THE COURT OF APPEALS RELIED IN THE MAIN ON HARTFORD ACCIDENT &
INDEMNITY CO. V. DELTA & PINE LAND CO., 292 U.S. 143, AND HOME INS. CO.
V. DICK, 281 U.S. 397.  THOSE WERE CASES WHERE THE ACTIVITIES IN THE
STATE OF THE FORUM WERE THOUGHT TO BE TOO SLIGHT AND TOO CASUAL, AS IN
THE DELTA & PINE LAND CO. CASE (292 U.S., AT 150), TO MAKE THE
APPLICATION OF LOCAL LAW CONSISTENT WITH DUE PROCESS, OR WHOLLY
LACKING, AS IN THE DICK CASE.  (FN5)  NO DEFICIENCY OF THAT ORDER IS
PRESENT HERE.  AS MR. JUSTICE BLACK, DISSENTING, SAID WHEN THIS CASE
WAS HERE BEFORE: 

"INSURANCE COMPANIES, LIKE OTHER CONTRACTORS, DO NOT CONFINE THEIR
CONTRACTUAL ACTIVITIES AND OBLIGATIONS WITHIN STATE BOUNDARIES.  THEY
SELL TO CUSTOMERS WHO ARE PROMISED PROTECTION IN STATES FAR AWAY FROM
THE PLACE WHERE THE CONTRACT IS MADE.  IN THIS VERY CASE THE POLICY WAS
SOLD TO CLAY WITH KNOWLEDGE THAT HE COULD TAKE HIS PROPERTY ANYWHERE IN
THE WORLD HE SAW FIT WITHOUT LOSING THE PROTECTION OF HIS INSURANCE. 
IN FACT, HIS CONTRACT WAS DESCRIBED ON ITS FACE AS A 'PERSONAL PROPERTY
FLOATER POLICY (WORLD WIDE).'  THE CONTRACT DID NOT EVEN ATTEMPT TO
PROVIDE THAT THE LAW OF ILLINOIS WOULD GOVERN WHEN SUITS WERE FILED
ANYWHERE ELSE IN THE COUNTRY.  SHORTLY AFTER THE CONTRACT WAS MADE,
CLAY MOVED TO FLORIDA AND THERE HE LIVED FOR SEVERAL YEARS.  HIS
INSURED PROPERTY WAS THERE ALL THAT TIME.  THE COMPANY KNEW THIS FACT. 
PARTICULARLY SINCE THE COMPANY WAS LICENSED TO DO BUSINESS IN FLORIDA,
IT MUST HAVE KNOWN IT MIGHT BE SUED THERE  ...  ."  363 U.S., AT 221. 

ORDER OF UNITED COMMERCIAL TRAVELERS V. WOLFE, 331 U.S. 586, INVOLVED
A SIX-MONTH-SUIT CLAUSE; BUT IT IS A HIGHLY SPECIALIZED DECISION
DEALING WITH UNIQUE FACTS - A SUIT ON AN INSURANCE POLICY ISSUED BY AN
OHIO FRATERNAL SOCIETY, INCORPORATING ITS CONSTITUTION AND BY-LAWS, AND
INVOLVING WHAT THE COURT CALLED THE "INDIVISIBLE UNITY" OF THE
FRATERNAL SOCIETY.  ID., AT 606.  IN THAT CASE THE ADDITIONAL TIME
AFFORDED BY THE STATUTE OF LIMITATIONS OF SOUTH DAKOTA, WHERE THE CASE
WAS TRIED, WAS NOT ALLOWED TO BE APPLIED TO THE CONTRACT.  WE DO NOT
EXTEND THAT RULE NOR APPLY IT HERE, FOR FLORIDA HAS AMPLE CONTACTS WITH
THE PRESENT TRANSACTION AND THE PARTIES TO SATISFY ANY CONCEIVABLE
REQUIREMENT OF FULL FAITH AND CREDIT OR OF DUE PROCESS.  REVERSED. 
(FN6) 

FN1  FLA. STAT. ANN. (1960) SECS 95.03, 95.11 (3). 

FN2  FLA. STAT. ANN. (1957) SEC 25.031; FLA. APP. RULE 4.61.  SEE SUN
INS. OFFICE, LTD., V. CLAY, 133 SO. 2D 735.  FOR OTHER INSTANCES OF OUR
USE OF THAT CERTIFICATE PROCEDURE SEE DRESNER V. TALLAHASSEE, 375 U.S.
136, AND ALDRICH V. ALDRICH, 375 U.S. 75, 249. 

FN3  THE MEANING OF AN "ALL RISKS" CLAUSE. 

FN4  SEE CASES CITED IN 363 U.S., AT 217, NOTE 12. 

FN5  "  ...  NOTHING IN ANY WAY RELATING TO THE POLICY SUED ON, OR TO
THE CONTRACTS OF REINSURANCE, WAS EVER DONE OR REQUIRED TO BE DONE IN
TEXAS.  ALL ACTS RELATING TO THE MAKING OF THE POLICY WERE DONE IN
MEXICO.  ALL IN RELATION TO THE MAKING OF THE CONTRACTS OF RE-INSURANCE
WERE DONE THERE OR IN NEW YORK.  AND, LIKEWISE, ALL THINGS IN REGARD TO
PERFORMANCE WERE TO BE DONE OUTSIDE OF TEXAS.  NEITHER THE TEXAS LAWS
NOR THE TEXAS COURTS WERE INVOLKED FOR ANY PURPOSE, EXCEPT BY DICK IN
THE BRINGING OF THIS SUIT.  THE FACT THAT DICK'S PERMANENT RESIDENCE
WAS IN TEXAS IS WITHOUT SIGNIFICANCE.  AT ALL TIMES HERE MATERIAL, HE
WAS PHYSICALLY PRESENT AND ACTING IN MEXICO."  281 U.S., AT 408. 

FN6  A MOTION TO STRIKE A BRIEF AMICUS FILED BY FLORIDA IS DENIED. 
..END :

















PARDEN V. TERMINAL RAILWAY OF THE ALABAMA STATE DOCKS DEPARTMENT 377
U.S. 184 


NO. 157.  ARGUED FEBRUARY 26-27, 1964.  - DECIDED MAY 18, 1964.  - 311
F.2D 727, REVERSED. 


OPERATION OF A COMMON CARRIER RAILROAD IN INTERSTATE COMMERCE BY A
STATE CONSTITUTED A WAIVER OF ITS SOVEREIGN IMMUNITY AND CONSENT TO A
SUIT BROUGHT IN A FEDERAL COURT BY EMPLOYEES OF THE RAILROAD UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT.  PP. 184-198. 

PARDEN ET AL. V. TERMINAL RAILWAY OF THE ALABAMA STATE DOCKS DEPARTMENT
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER A STATE THAT OWNS AND OPERATES A
RAILROAD IN INTERSTATE COMMERCE MAY SUCCESSFULLY PLEAD SOVEREIGN
IMMUNITY IN A FEDERAL-COURT SUIT BROUGHT AGAINST THE RAILROAD BY ITS
EMPLOYEE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 

PETITIONERS, CITIZENS OF THE STATE OF ALABAMA, BROUGHT SUIT IN THE
FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA AGAINST
RESPONDENT TERMINAL RAILWAY OF THE ALABAMA STATE DOCKS DEPARTMENT. 
THEY ALLEGED THAT THE RAILWAY WAS A "COMMON CARRIER BY RAILROAD  ...
ENGAGING IN COMMERCE BETWEEN ANY OF THE SEVERAL STATES" WITHIN THE
TERMS OF THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SECS 51-60,
AND SOUGHT DAMAGES UNDER THAT ACT FOR PERSONAL INJURIES SUSTAINED WHILE
EMPLOYED BY THE RAILWAY.  RESPONDENT STATE OF ALABAMA, APPEARING
SPECIALLY, MOVED TO DISMISS THE ACTION ON THE GROUND THAT THE RAILWAY
WAS AN AGENCY OF THE STATE AND THE STATE HAD NOT WAIVED ITS SOVEREIGN
IMMUNITY FROM SUIT.  THE DISTRICT COURT GRANTED THE MOTION, AND THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED, 311 F.2D 727.  WE
GRANTED CERTIORARI, 375 U.S. 810.  WE REVERSE. 

THE TERMINAL RAILWAY IS WHOLLY OWNED AND OPERATED BY THE STATE OF
ALABAMA THROUGH ITS STATE DOCKS DEPARTMENT, AND HAS BEEN SINCE 1927. 
CONSISTING OF ABOUT 50 MILES OF RAILROAD TRACKS IN THE AREA ADJACENT TO
THE STATE DOCKS AT MOBILE, IT SERVES THOSE DOCKS AND SEVERAL INDUSTRIES
SITUATED IN THE VICINITY, AND ALSO OPERATES AN INTERCHANGE RAILROAD
WITH SEVERAL PRIVATELY OWNED RAILROAD COMPANIES.   IT PERFORMS SERVICES
FOR PROFIT UNDER STATUTORY AUTHORITY AUTHORIZING IT TO OPERATE "AS
THOUGH IT WERE AN ORDINARY COMMON CARRIER."  1940 CODE OF ALABAMA
(RECOMPILED 1958), TIT. 38, SEC 17.  (FN1) IT CONDUCTS SUBSTANTIAL
OPERATIONS IN INTERSTATE COMMERCE.  IT HAS CONTRACTS AND WORKING
AGREEMENTS WITH THE VARIOUS RAILROAD BROTHERHOODS IN ACCORDANCE WITH
THE RAILWAY LABOR ACT, 45 U.S.C. SEC 151 ET SEQ.; MAINTAINS ITS
EQUIPMENT IN CONFORMITY WITH THE FEDERAL SAFETY APPLIANCE ACT, 45
U.S.C. SEC 1 ET SEQ.; AND COMPLIES WITH THE REPORTING AND BOOKKEEPING
REQUIREMENTS OF THE INTERSTATE COMMERCE COMMISSION.  IT IS THUS
INDISPUTABLY A COMMON CARRIER BY RAILROAD ENGAGING IN INTERSTATE
COMMERCE. 

PETITIONERS CONTEND THAT IT IS CONSEQUENTLY SUBJECT TO THIS SUIT
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  THAT STATUTE PROVIDES THAT
"EVERY COMMON CARRIER BY RAILROAD WHILE ENGAGING IN COMMERCE BETWEEN
ANY OF THE SEVERAL STATES  ...  SHALL BE LIABLE IN DAMAGES TO ANY
PERSON SUFFERING INJURY WHILE HE IS EMPLOYED BY SUCH CARRIER IN SUCH
COMMERCE," AND THAT "UNDER THIS CHAPTER AN ACTION MAY BE BROUGHT IN A
DISTRICT COURT OF THE UNITED STATES  ...  ."  45 U.S.C.  SECS 51, 56. 
RESPONDENTS RELY, AS DID THE LOWER COURTS IN DISMISSING THE ACTION, ON
SOVEREIGN IMMUNITY - THE PRINCIPLE THAT A STATE MAY NOT BE SUED BY AN
INDIVIDUAL WITHOUT ITS CONSENT.  ALTHOUGH THE ELEVENTH AMENDMENT IS NOT
IN TERMS APPLICABLE HERE, SINCE PETITIONERS ARE CITIZENS OF ALABAMA,
(FN2) THIS COURT HAS RECOGNIZED THAT AN UNCONSENTING STATE IS IMMUNE
FROM FEDERAL-COURT SUITS BROUGHT BY ITS OWN CITIZENS AS WELL AS BY
CITIZENS OF ANOTHER STATE.  HANS V. LOUISIANA, 134 U.S. 1; DUHNE V. NEW
JERSEY, 251 U.S. 311; GREAT NORTHERN LIFE INS.  CO. V. READ, 322 U.S.
47, 51; FITTS V. MCGHEE, 172 U.S. 516, 524.  SEE ALSO MONACO V.
MISSISSIPPI, 292 U.S. 313.  NOR IS THE STATE DIVESTED OF ITS IMMUNITY
"ON THE MERE GROUND THAT THE CASE IS ONE ARISING UNDER THE CONSTITUTION
OR LAWS OF THE UNITED STATES."  HANS V. LOUISIANA, SUPRA, 134 U.S., AT
10; SEE DUHNE V. NEW JERSEY, SUPRA, 251 U.S. 311; SMITH V. REEVES, 178
U.S. 436, 447-449; EX PARTE NEW YORK, 256 U.S. 490, 497-498.  BUT THE
IMMUNITY MAY OF COURSE BE WAIVED; THE STATE'S FREEDOM FROM SUIT WITHOUT
ITS CONSENT DOES NOT PROTECT IT FROM A SUIT TO WHICH IT HAS CONSENTED. 
CLARK V. BARNARD, 108 U.S. 436, 447; GUNTER V. ATLANTIC COAST LINE R.
CO., 200 U.S. 273, 284; PETTY V. TENNESSEE-MISSOURI BRIDGE COMM'N, 359
U.S. 275.  WE THINK ALABAMA HAS CONSENTED TO THE PRESENT SUIT. 

THIS CASE IS DISTINCTLY UNLIKE HANS V. LOUISIANA, SUPRA, WHERE THE
ACTION WAS A CONTRACTUAL ONE BASED ON STATE BOND COUPONS, AND THE
PLAINTIFF SOUGHT TO INVOKE THE FEDERAL-QUESTION JURISDICTION BY
ALLEGING AN IMPAIRMENT OF THE OBLIGATION OF CONTRACT.  (FN3)  SUCH A
SUIT ON STATE DEBT OBLIGATIONS WITHOUT THE STATE'S CONSENT WAS
PRECISELY THE "EVIL" AGAINST WHICH BOTH THE ELEVENTH AMENDMENT AND THE
EXPANDED IMMUNITY DOCTRINE OF THE HANS CASE WERE DIRECTED.  (FN4)
HERE, FOR THE FIRST TIME IN THIS COURT, A STATE'S CLAIM OF IMMUNITY
AGAINST SUIT BY AN INDIVIDUAL MEETS A SUIT BROUGHT UPON A CAUSE OF
ACTION EXPRESSLY CREATED BY CONGRESS.  TWO QUESTIONS ARE THUS
PRESENTED:  (1) DID CONGRESS IN ENACTING THE FELA INTEND TO SUBJECT A
STATE TO SUIT IN THESE CIRCUMSTANCES?  (2) DID IT HAVE THE POWER TO DO
SO, AS AGAINST THE STATE'S CLAIM OF IMMUNITY? 

WE THINK THAT CONGRESS, IN MAKING THE FELA APPLICABLE TO "EVERY"
COMMON CARRIER BY RAILROAD IN INTERSTATE COMMERCE, MEANT WHAT IT SAID. 
(FN5)  THAT CONGRESSIONAL STATUTES REGULATING RAILROADS IN INTERSTATE
COMMERCE APPLY TO SUCH RAILROADS WHETHER THEY ARE STATE OWNED OR
PRIVATELY OWNED IS HARDLY A NOVEL PROPOSITION; IT HAS TWICE BEEN
CLEARLY AFFIRMED BY THIS COURT.  IN UNITED STATES V. CALIFORNIA, 297
U.S. 175, THE QUESTION WAS WHETHER THE FEDERAL SAFETY APPLIANCE ACT, 45
U.S.C. SECS 2, 6, APPLICABLE BY ITS TERMS TO "ANY COMMON CARRIER
ENGAGED IN INTERSTATE COMMERCE BY RAILROAD," APPLIED TO CALIFORNIA'S
STATE-OWNED RAILROAD.  THE COURT UNANIMOUSLY HELD THAT IT DID.  (FN6)
IN REJECTING THE ARGUMENT THAT "THE STATUTE IS TO BE DEEMED
INAPPLICABLE TO STATE-OWNED RAILROADS BECAUSE IT DOES NOT SPECIFICALLY
MENTION THEM," THE COURT SAID, IN TERMS EQUALLY PERTINENT HERE: 

"NO CONVINCING REASON IS ADVANCED WHY INTERSTATE COMMERCE AND PERSONS
AND PROPERTY CONCERNED IN IT SHOULD NOT RECEIVE THE PROTECTION OF THE
ACT WHENEVER A STATE, AS WELL AS A PRIVATELY-OWNED CARRIER, BRINGS
ITSELF WITHIN THE SWEEP OF THE STATUTE, OR WHY ITS ALL-EMBRACING
LANGUAGE SHOULD NOT BE DEEMED TO AFFORD THAT PROTECTION."  297 U.S., AT
185. 

IN CALIFORNIA V. TAYLOR, 353 U.S. 553, THE QUESTION WAS WHETHER THE
RAILWAY LABOR ACT, 45 U.S.C. SEC 151 ET SEQ., APPLICABLE BY ITS TERMS
TO "ANY  ...  CARRIER BY RAILROAD, SUBJECT TO THE INTERSTATE COMMERCE
ACT," APPLIED TO THE SAME CALIFORNIA STATE RAILROAD.  THE COURT, AGAIN
UNANIMOUS, HELD THAT IT DID.  (FN7)  AFTER NOTING THAT "FEDERAL
STATUTES REGULATING INTERSTATE RAILROADS, OR THEIR EMPLOYEES, HAVE
CONSISTENTLY BEEN HELD TO APPLY TO PUBLICLY OWNED OR OPERATED
RAILROADS," ALTHOUGH "NONE OF THESE STATUTES REFERRED SPECIFICALLY TO
PUBLIC RAILROADS AS BEING WITHIN THEIR COVERAGE," 353 U.S., AT 562, THE
COURT STATED: 

"THE FACT THAT CONGRESS CHOSE TO PHRASE THE COVERAGE OF THE ACT IN
ALL-EMBRACING TERMS INDICATES THAT STATE RAILROADS WERE INCLUDED WITHIN
IT.  IN FACT, THE CONSISTENT CONGRESSIONAL PATTERN IN RAILWAY
LEGISLATION WHICH PRECEDED THE RAILWAY LABOR ACT WAS TO EMPLOY ALL
INCLUSIVE LANGUAGE OF COVERAGE WITH NO SUGGESTION THAT STATE-OWNED
RAILROADS WERE NOT INCLUDED."  353 U.S., AT 564. 

AS SUPPORT FOR THIS PROPOSITION, THE COURT RELIED ON THREE DECISIONS
INVOLVING THE PRECISE QUESTION PRESENTED BY THE INSTANT CASE, IN ALL OF
WHICH IT HAD BEEN HELD THAT THE FELA DID AUTHORIZE SUIT AGAINST A
PUBLICLY OWNED RAILROAD DESPITE A CLAIM OF SOVEREIGN IMMUNITY. 
MATHEWES V. PORT UTILITIES COMM'N, 32 F.2D 913 (D.C.E.D.S.C. 1929);
HIGGINBOTHAM V. PUBLIC BELT R. COMM'N, 192 LA. 525, 188 SO. 395 (1938);
MAURICE V. STATE, 43 CAL. APP. 2D 270, 110 P.2D 706 (CAL. DIST. C.A.
1941).   THUS WE COULD NOT READ THE FELA DIFFERENTLY HERE WITHOUT
UNDERMINING THE BASIS OF OUR DECISION IN TAYLOR. 

NOR DO WE PERCEIVE ANY REASON FOR READING IT DIFFERENTLY.  THE
LANGUAGE OF THE FELA IS AT LEAST AS BROAD AND ALL-EMBRACING AS THAT OF
THE SAFETY APPLIANCE ACT OR THE RAILWAY LABOR ACT, AND ITS PURPOSE IS
NO LESS APPLICABLE TO STATE RAILROADS AND THEIR EMPLOYEES.  IF CONGRESS
MADE THE JUDGMENT THAT, IN VIEW OF THE DANGERS OF RAILROAD WORK AND THE
DIFFICULTY OF RECOVERING FOR PERSONAL INJURIES UNDER EXISTING RULES,
RAILROAD WORKERS IN INTERSTATE COMMERCE SHOULD BE PROVIDED WITH THE
RIGHT OF ACTION CREATED BY THE FELA, WE SHOULD NOT PRESUME TO SAY, IN
THE ABSENCE OF EXPRESS PROVISION TO THE CONTRARY, THAT IT INTENDED TO
EXCLUDE A PARTICULAR GROUP OF SUCH WORKERS FROM THE BENEFITS CONFERRED
BY THE ACT.  TO READ A "SOVEREIGN IMMUNITY EXCEPTION" INTO THE ACT
WOULD RESULT, MOREOVER, IN A RIGHT WITHOUT REMEDY; IT WOULD MEAN THAT
CONGRESS MADE "EVERY" INTERSTATE RAILROAD LIABLE IN DAMAGES TO INJURED
EMPLOYEES BUT LEFT ONE CLASS OF SUCH EMPLOYEES - THOSE WHOSE EMPLOYERS
HAPPEN TO BE STATE OWNED - WITHOUT ANY EFFECTIVE MEANS OF ENFORCING
THAT LIABILITY.  WE ARE UNWILLING TO CONCLUDE THAT CONGRESS INTENDED SO
POINTLESS AND FRUSTRATING A RESULT.  WE THEREFORE READ THE FELA AS
AUTHORIZING SUIT IN A FEDERAL DISTRICT COURT AGAINST STATE-OWNED AS
WELL AS PRIVATELY OWNED COMMON CARRIERS BY RAILROAD IN INTERSTATE
COMMERCE.  (FN8) 

RESPONDENTS CONTEND THAT CONGRESS IS WITHOUT POWER, IN VIEW OF THE
IMMUNITY DOCTRINE, THUS TO SUBJECT A STATE TO SUIT.  WE DISAGREE. 
CONGRESS ENACTED THE FELA IN THE EXERCISE OF ITS CONSTITUTIONAL POWER
TO REGULATE INTERSTATE COMMERCE.  SECOND EMPLOYERS' LIABILITY CASES,
223 U.S. 1.  WHILE A STATE'S IMMUNITY FROM SUIT BY A CITIZEN WITHOUT
ITS CONSENT HAS BEEN SAID TO BE ROOTED IN "THE INHERENT NATURE OF
SOVEREIGNTY," GREAT NORTHERN LIFE INS. CO. V. READ, SUPRA, 322 U.S. 47,
51,  (FN9)  THE STATES SURRENDERED A PORTION OF THEIR SOVEREIGNTY WHEN
THEY GRANTED CONGRESS THE POWER TO REGULATE COMMERCE. 

"THIS POWER, LIKE ALL OTHERS VESTED IN CONGRESS, IS COMPLETE IN
ITSELF, MAY BE EXERCISED TO ITS UTMOST EXTENT, AND ACKNOWLEDGES NO
LIMITATIONS OTHER THAN ARE PRESCRIBED IN THE CONSTITUTION  ...  .  IF,
AS HAS ALWAYS BEEN UNDERSTOOD, THE SOVEREIGNTY OF CONGRESS, THOUGH
LIMITED TO SPECIFIED OBJECTS IS PLENARY AS TO THOSE OBJECTS, THE POWER
OVER COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL STATES, IS
VESTED IN CONGRESS AS ABSOLUTELY AS IT WOULD BE IN A SINGLE GOVERNMENT,
HAVING IN ITS CONSTITUTION THE SAME RESTRICTIONS ON THE EXERCISE OF THE
POWER AS ARE FOUND IN THE CONSTITUTION OF THE UNITED STATES."  GIBBONS
V. OGDEN, 9 WHEAT.  1, 196-197. 

THUS, AS THE COURT SAID IN UNITED STATES V. CALIFORNIA, SUPRA, 297
U.S., AT 184-185, A STATE'S OPERATION OF A RAILROAD IN INTERSTATE
COMMERCE: 

"MUST BE IN SUBORDINATION TO THE POWER TO REGULATE INTERSTATE
COMMERCE, WHICH HAS BEEN GRANTED SPECIFICALLY TO THE NATIONAL
GOVERNMENT.  THE SOVEREIGN POWER OF THE STATES IS NECESSARILY
DIMINISHED TO THE EXTENT OF THE GRANTS OF POWER TO THE FEDERAL
GOVERNMENT IN THE CONSTITUTION  ... .  THERE IS NO SUCH LIMITATION UPON
THE PLENARY POWER TO REGULATE COMMERCE AS THERE IS UPON THE FEDERAL
POWER TO TAX STATE INSTRUMENTALITIES.  THE STATE CAN NO MORE DENY THE
POWER IF ITS EXERCISE HAS BEEN AUTHORIZED BY CONGRESS THAN CAN AN
INDIVIDUAL." 

BY EMPOWERING CONGRESS TO REGULATE COMMERCE, THEN, THE STATES
NECESSARILY SURRENDERED ANY PORTION OF THEIR SOVEREIGNTY THAT WOULD
STAND IN THE WAY OF SUCH REGULATION.  SINCE IMPOSITION OF THE FELA
RIGHT OF ACTION UPON INTERSTATE RAILROADS IS WITHIN THE CONGRESSIONAL
REGULATORY POWER, IT MUST FOLLOW THAT APPLICATION OF THE ACT TO SUCH A
RAILROAD CANNOT BE PRECLUDED BY SOVEREIGN IMMUNITY.  (FN10) 

RECOGNITION OF THE CONGRESSIONAL POWER TO RENDER A STATE SUABLE UNDER
THE FELA DOES NOT MEAN THAT THE IMMUNITY DOCTRINE, AS EMBODIED IN THE
ELEVENTH AMENDMENT WITH RESPECT TO CITIZENS OF OTHER STATES AND AS
EXTENDED TO THE STATE'S OWN CITIZENS BY THE HANS CASE, IS HERE BEING
OVERRIDDEN.  IT REMAINS THE LAW THAT A STATE MAY NOT BE SUED BY AN
INDIVIDUAL WITHOUT ITS CONSENT.  OUR CONCLUSION IS SIMPLY THAT ALABAMA,
WHEN IT BEGAN OPERATION OF AN INTERSTATE RAILROAD APPROXIMATELY 20
YEARS AFTER ENACTMENT OF THE FELA, NECESSARILY CONSENTED TO SUCH SUIT
AS WAS AUTHORIZED BY THAT ACT.  BY ADOPTING AND RATIFYING THE COMMERCE
CLAUSE, THE STATES EMPOWERED CONGRESS TO CREATE SUCH A RIGHT OF ACTION
AGAINST INTERSTATE RAILROADS; BY ENACTING THE FELA IN THE EXERCISE OF
THIS POWER, CONGRESS CONDITIONED THE RIGHT TO OPERATE A RAILROAD IN
INTERSTATE COMMERCE UPON AMENABILITY TO SUIT IN FEDERAL COURT AS
PROVIDED BY THE ACT; BY THEREAFTER OPERATING A RAILROAD IN INTERSTATE
COMMERCE, ALABAMA MUST BE TAKEN TO HAVE ACCEPTED THAT CONDITION AND
THUS TO HAVE CONSENTED TO SUIT.  "BY ENGAGING IN INTERSTATE COMMERCE BY
RAIL, THE STATE HAS SUBJECTED ITSELF TO THE COMMERCE POWER, AND IS
LIABLE FOR A VIOLATION OF THE  ...  ACT, AS ARE OTHER CARRIERS  ...
."  UNITED STATES V. CALIFORNIA, SUPRA, 297 U.S., AT 185; CALIFORNIA V.
TAYLOR, SUPRA, 353 U.S., AT 568.  WE THUS AGREE THAT:    "THE STATE IS
LIABLE, UPON THE THEORY THAT, BY ENGAGING IN INTERSTATE COMMERCE BY
RAIL, IT HAS SUBJECTED ITSELF TO THE COMMERCE POWER OF THE FEDERAL
GOVERNMENT. 

     *         *      *         *         * 

"IT WOULD BE A STRANGE SITUATION, INDEED, IF THE STATE COULD BE HELD
SUBJECT TO THE FEDERAL SAFETY APPLIANCE ACT AND LIABLE FOR A VIOLATION
THEREOF, AND YET COULD NOT BE SUED WITHOUT ITS EXPRESS CONSENT.  THE
STATE, BY ENGAGING IN INTERSTATE COMMERCE, AND THEREBY SUBJECTING
ITSELF TO THE ACT, MUST BE HELD TO HAVE WAIVED ANY RIGHT IT MAY HAVE
HAD ARISING OUT OF THE GENERAL RULE THAT A SOVEREIGN STATE MAY NOT BE
SUED WITHOUT ITS CONSENT."  MAURICE V. STATE, SUPRA, 43 CAL. APP. 2D,
AT 275, 277, 110 P.2D, AT 710-711. 

ACCORD, HIGGINBOTHAM V. PUBLIC BELT R. COMM'N, SUPRA, 192 LA. 525,
550-551, 188 SO. 395, 403; MATHEWES V. PORT UTILITIES COMM'N, SUPRA.
(FN11) 

RESPONDENTS DENY THAT ALABAMA'S OPERATION OF THE RAILROAD CONSTITUTED
CONSENT TO SUIT.  THEY ARGUE THAT IT HAD NO SUCH EFFECT UNDER STATE
LAW, AND THAT THE STATE DID NOT INTEND TO WAIVE ITS IMMUNITY OR KNOW
THAT SUCH A WAIVER WOULD RESULT.  RELIANCE IS PLACED ON THE ALABAMA
CONSTITUTION OF 1901, ART. I, SECTION 14 OF WHICH PROVIDES THAT "THE
STATE OF ALABAMA SHALL NEVER BE MADE A DEFENDANT IN ANY COURT OF LAW OR
EQUITY"; ON STATE CASES HOLDING THAT NEITHER THE LEGISLATURE NOR A
STATE OFFICER HAS THE POWER TO WAIVE THE STATE'S IMMUNITY; (FN12)  AND
ON CASES IN THIS COURT TO THE EFFECT THAT WHETHER A STATE HAS WAIVED
ITS IMMUNITY DEPENDS UPON ITS INTENTION AND IS A QUESTION OF STATE LAW
ONLY.  CHANDLER V. DIX, 194 U.S. 590; PALMER V. OHIO, 248 U.S. 32; FORD
MOTOR CO. V. DEPARTMENT OF TREASURY, 323 U.S. 459, 466-470.  WE THINK
THOSE CASES ARE INAPPOSITE TO THE PRESENT SITUATION, WHERE THE WAIVER
IS ASSERTED TO ARISE FROM THE STATE'S COMMISSION OF AN ACT TO WHICH
CONGRESS, IN THE EXERCISE OF ITS CONSTITUTIONAL POWER TO REGULATE
COMMERCE, HAS ATTACHED THE CONDITION OF AMENABILITY TO SUIT.  MORE
PERTINENT TO SUCH A SITUATION IS OUR DECISION IN PETTY V. TENNESSEE
MISSOURI BRIDGE COMM'N, SUPRA.  THAT WAS A SUIT AGAINST A BI-STATE
AUTHORITY CREATED WITH THE CONSENT OF CONGRESS PURSUANT TO THE COMPACT
CLAUSE OF THE CONSTITUTION.  WE ASSUMED ARGUENDO THAT THE SUIT MUST BE
CONSIDERED AS BEING AGAINST THE STATES THEMSELVES, BUT HELD
NEVERTHELESS THAT BY THE TERMS OF THE COMPACT AND OF A PROVISO THAT
CONGRESS HAD ATTACHED IN APPROVING IT,  (FN13) THE STATES HAD WAIVED
ANY IMMUNITY THEY MIGHT OTHERWISE HAVE HAD.  IN REACHING THIS
CONCLUSION WE REJECTED ARGUMENTS, LIKE THE ONE MADE HERE, BASED ON THE
PROPOSITION THAT NEITHER OF THE STATES UNDER ITS OWN LAW WOULD HAVE
CONSIDERED THE LANGUAGE IN THE COMPACT TO CONSTITUTE A WAIVER OF ITS
IMMUNITY.  THE QUESTION OF WAIVER WAS, WE HELD, ONE OF FEDERAL LAW.  IT
IS TRUE THAT THIS HOLDING WAS BASED ON THE INCLUSION OF THE LANGUAGE IN
AN INTERSTATE COMPACT SANCTIONED BY CONGRESS UNDER THE CONSTITUTION. 
BUT SUCH COMPACTS DO NOT PRESENT THE ONLY INSTANCE IN WHICH THE
QUESTION WHETHER A STATE HAS WAIVED ITS IMMUNITY IS ONE OF FEDERAL
LAW.  THIS MUST BE TRUE WHENEVER THE WAIVER IS ASSERTED TO ARISE FROM
AN ACT DONE BY THE STATE WITHIN THE REALM OF CONGRESSIONAL REGULATION;
FOR THE CONGRESSIONAL POWER TO CONDITION SUCH AN ACT UPON AMENABILITY
TO SUIT WOULD BE MEANINGLESS IF THE STATE, ON THE BASIS OF ITS OWN LAW
OR INTENTION, COULD CONCLUSIVELY DENY THE WAIVER AND SHAKE OFF THE
CONDITION.  THE BROAD PRINCIPLE OF THE PETTY CASE IS THUS APPLICABLE
HERE:  WHERE A STATE'S CONSENT TO SUIT IS ALLEGED TO ARISE FROM AN ACT
NOT WHOLLY WITHIN ITS OWN SPHERE OF AUTHORITY BUT WITHIN A SPHERE -
WHETHER IT BE INTERSTATE COMPACTS OR INTERSTATE COMMERCE - SUBJECT TO
THE CONSTITUTIONAL POWER OF THE FEDERAL GOVERNMENT, THE QUESTION
WHETHER THE STATE'S ACT CONSTITUTES THE ALLEGED CONSENT IS ONE OF
FEDERAL LAW.  HERE, AS IN PETTY, THE STATES BY VENTURING INTO THE
CONGRESSIONAL REALM "ASSUME THE CONDITIONS THAT CONGRESS UNDER THE
CONSTITUTION ATTACHED."  359 U.S., AT 281-282. 

OUR CONCLUSION THAT THIS SUIT MAY BE MAINTAINED IS IN ACCORD WITH THE
COMMON SENSE OF THIS NATION'S FEDERALISM.  A STATE'S IMMUNITY FROM SUIT
BY AN INDIVIDUAL WITHOUT ITS CONSENT HAS BEEN FULLY RECOGNIZED BY THE
ELEVENTH AMENDMENT AND BY SUBSEQUENT DECISIONS OF THIS COURT.  BUT WHEN
A STATE LEAVES THE SPHERE THAT IS EXCLUSIVELY ITS OWN AND ENTERS INTO
ACTIVITIES SUBJECT TO CONGRESSIONAL REGULATION, IT SUBJECTS ITSELF TO
THAT REGULATION AS FULLY AS IF IT WERE A PRIVATE PERSON OR
CORPORATION.  CF. SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437, 463;
NEW YORK V. UNITED STATES, 326 U.S. 572.  IT WOULD SURPRISE OUR
CITIZENS, WE THINK, TO LEARN THAT PETITIONERS WHO IN TERMS OF THE
LANGUAGE AND PURPOSES OF THE FELA ARE ON PRECISELY THE SAME FOOTING AS
OTHER RAILROAD WORKERS,  (FN14)  MUST BE DENIED THE BENEFIT OF THE ACT
SIMPLY BECAUSE THE RAILROAD FOR WHICH THEY WORK HAPPENS TO BE OWNED AND
OPERATED BY A STATE RATHER THAN A PRIVATE CORPORATION.  IT WOULD BE
EVEN MORE SURPRISING TO LEARN THAT THE FELA DOES MAKE THE TERMINAL
RAILWAY "LIABLE" TO PETITIONERS, BUT, UNFORTUNATELY, PROVIDES NO MEANS
BY WHICH THAT LIABILITY MAY BE ENFORCED.  MOREOVER, SUCH A RESULT WOULD
BEAR THE SEEDS OF A SUBSTANTIAL IMPEDIMENT TO THE EFFICIENT WORKING OF
OUR FEDERALISM.  STATES HAVE ENTERED AND ARE ENTERING NUMEROUS FORMS OF
ACTIVITY WHICH, IF CARRIED ON BY A PRIVATE PERSON OR CORPORATION, WOULD
BE SUBJECT TO FEDERAL REGULATION.  SEE SOUTH CAROLINA V. UNITED STATES,
SUPRA, 199 U.S., AT 454-455.  IN A SIGNIFICANT AND INCREASING NUMBER OF
INSTANCES, SUCH REGULATION TAKES THE FORM OF AUTHORIZATION OF LAWSUITS
BY PRIVATE PARTIES.  TO PRECLUDE THIS FORM OF REGULATION IN ALL CASES
OF STATE ACTIVITY WOULD REMOVE AN IMPORTANT WEAPON FROM THE
CONGRESSIONAL ARSENAL WITH RESPECT TO A SUBSTANTIAL VOLUME OF REGULABLE
CONDUCT.  WHERE, AS HERE, CONGRESS BY THE TERMS AND PURPOSES OF ITS
ENACTMENT HAS GIVEN NO INDICATION THAT IT DESIRES TO BE THUS HINDERED
IN THE EXERCISE OF ITS CONSTITUTIONAL POWER, WE SEE NOTHING IN THE
CONSTITUTION TO OBSTRUCT ITS WILL.  REVERSED. 

FN1  SEE ALSO ALA. CONST. OF 1901, AMENDMENT 116; 1940 CODE OF ALA.
(RECOMPILED 1958), TIT. 38, SECS 45(14), (16). 

FN2  THE ELEVENTH AMENDMENT PROVIDES: 

"THE JUDICIAL POWER OF THE UNITED STATES SHALL NOT BE CONSTRUED TO
EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED AGAINST
ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER STATE, OR BY CITIZENS
OR SUBJECTS OF ANY FOREIGN STATE." 

FN3  OF THE OTHER CASES CITED IN WHICH FEDERAL-QUESTION JURISDICTION
WAS ASSERTED, SMITH V. REEVES, 178 U.S. 436, AND EX PARTE NEW YORK, 256
U.S. 490, WERE ALSO COMMONPLACE SUITS IN WHICH THE FEDERAL QUESTION DID
NOT ITSELF GIVE RISE TO THE ALLEGED CAUSE OF ACTION AGAINST THE STATE
BUT MERELY LURKED IN THE BACKGROUND.  THE FORMER CASE WAS A TAX-REFUND
SUIT BROUGHT BY RECEIVERS OF A CORPORATION CREATED BY CONGRESS, AND THE
LATTER WAS AN ADMIRALTY SUIT FOR PROPERTY DAMAGE DUE TO NEGLIGENCE. 
DUHNE V. NEW JERSEY, 251 U.S. 311, WAS A SUIT AGAINST THE STATE TO
RESTRAIN IT FROM ENFORCING THE EIGHTEENTH AMENDMENT TO THE FEDERAL
CONSTITUTION, ON THE GROUND THAT THE AMENDMENT WAS INVALID. 

FN4  SEE COHENS V. VIRGINIA, 6 WHEAT.  264, 406-407; HANS V.
LOUISIANA, 134 U.S. 1, 12-13, 16; THE FEDERALIST, NO. 81
(HAMILTON)(COOKE ED. 1961), AT 548-549; IRISH AND PROTHRO, THE POLITICS
OF AMERICAN DEMOCRACY, AT 123 (1959), QUOTED IN PETTY V. TENNESSEE
MISSOURI BRIDGE COMM'N, 359 U.S. 275, 276 N. 1; JAFFE, SUITS AGAINST
GOVERNMENTS AND OFFICERS:  SOVEREIGN IMMUNITY, 77 HARV. L. REV. 1, 19
(1963). 

FN5  ALTHOUGH THE LANGUAGE OF THE ACT ITSELF IS CLEAR ENOUGH, FURTHER
INDICATION OF THE CONGRESSIONAL DESIRE TO COVER ALL RAIL CARRIERS THAT
CONSTITUTIONALLY COULD BE COVERED IS FOUND IN THE LEGISLATIVE HISTORY,
WHERE THE HOUSE REPORT STATES THAT "THIS BILL RELATES TO COMMON
CARRIERS BY RAILROAD ENGAGED IN INTERSTATE  ...  COMMERCE  ... .  IT IS
INTENDED IN ITS SCOPE TO COVER ALL COMMERCE TO WHICH THE REGULATIVE
POWER OF CONGRESS EXTENDS."  H.R.  REP. NO. 1386, TO ACCOMPANY H.R.
20310, 60TH CONG., 1ST SESS. (1908). 

FN6  THE SUIT HAD BEEN BROUGHT AGAINST THE STATE NOT BY AN INDIVIDUAL
BUT BY THE UNITED STATES, TO RECOVER THE STATUTORY PENALTY FOR
VIOLATION OF THE ACT. 

FN7  THE SUIT WAS NOT AGAINST THE STATE, BUT AGAINST MEMBERS OF THE
NATIONAL RAILROAD ADJUSTMENT BOARD TO COMPEL THEM TO TAKE JURISDICTION
OVER THE RAILROAD UNDER THE ACT.  THE COURT LEFT OPEN, 353 U.S., AT
568, N. 16, THE QUESTION WHETHER THE ELEVENTH AMENDMENT WOULD BAR AN
EMPLOYEE OF THE RAILROAD FROM ENFORCING AN AWARD BY THE BOARD IN A SUIT
AGAINST THE STATE IN A FEDERAL DISTRICT COURT. 

FN8  RESPONDENTS MAKE AN ARGUMENT BASED ON THE PROVISION IN 45 U.S.C.
SEC 56 THAT THE JURISDICTION OF THE FEDERAL COURTS UNDER THE FELA
"SHALL BE CONCURRENT WITH THAT OF THE COURTS OF THE SEVERAL STATES." 
THE CONTENTION IS THAT SINCE ALABAMA'S COURTS WOULD NOT HAVE TAKEN
JURISDICTION OVER THIS SUIT, THE "CONCURRENT" JURISDICTION OF THE
FEDERAL COURTS MUST BE SIMILARLY LIMITED.  SEE HANS V. LOUISIANA,
SUPRA, 134 U.S., AT 18-19; BUT SEE CHISHOLM V. GEORGIA, 2 DALL.  419;
SOUTH DAKOTA V. NORTH CAROLINA, 192 U.S. 286, 318.  IT IS CLEAR,
HOWEVER, THAT CONGRESS DID NOT INTEND THIS LANGUAGE TO LIMIT THE
JURISDICTION OF THE FEDERAL COURTS, BUT MERELY TO PROVIDE AN
ALTERNATIVE FORUM IN THE STATE COURTS.  SEE O'DONNELL V. ELGIN, J.&E.R.
CO., 193 F.2D 348, 352-353 (C.A. 7TH CIR. 1951), CERT. DENIED, 343 U.S.
956; TRAPP V. BALTIMORE & O.R. CO., 283 F. 655 (D.C.N.D. OHIO 1922);
WALTZ V. CHESAPEAKE & O.R. CO., 65 F. SUPP. 913 (D.C.N.D. ILL.  1946). 

FN9  SEE ALSO THE FEDERALIST, NO. 81 (HAMILTON)(COOKE ED. 1961), AT
548, QUOTED IN HANS V. LOUISIANA, SUPRA, 134 U.S., AT 13.  COMPARE
JAFFE, NOTE 4, SUPRA, 77 HARV. L. REV., AT 3, 18. 

FN10  "BY ENGAGING IN THE RAILROAD BUSINESS A STATE CANNOT WITHDRAW
THE RAILROAD FROM THE POWER OF THE FEDERAL GOVERNMENT TO REGULATE
COMMERCE."  NEW YORK V. UNITED STATES, 326 U.S. 572, 582 (OPINION OF
FRANFURTER, J.). 

FN11  RESPONDENTS ARGUE THAT CONGRESS COULD NOT "DIRECTLY STRIP A
STATE OF ITS SOVEREIGN IMMUNITY FROM SUIT BY A CITIZEN," AND HENCE
CANNOT CONSTITUTIONALLY IMPOSE A CONDITION OF AMENABILITY TO SUIT UPON
THE STATE'S RIGHT TO OPERATE A RAILROAD IN INTERSTATE COMMERCE. 
RELIANCE IS PLACED ON SUCH CASES AS HOWARD V. ILLINOIS CENTRAL R. CO.,
207 U.S. 463, 502-503, AND FROST & FROST TRUCKING CO. V. RAILROAD
COMM'N OF CALIFORNIA, 271 U.S. 583.  IN HOWARD, THE COURT HELD THE
FIRST FEDERAL EMPLOYERS' LIABILITY ACT UNCONSTITUTIONAL BECAUSE IT
APPLIED TO INTRASTATE AS WELL AS INTERSTATE COMMERCE, REJECTING THE
ARGUMENT THAT "THE ACT IS CONSTITUTIONAL, ALTHOUGH IT EMBRACES SUBJECTS
NOT WITHIN THE POWER OF CONGRESS TO REGULATE COMMERCE, BECAUSE ONE WHO
ENGAGES IN INTERSTATE COMMERCE THEREBY SUBMITS ALL HIS BUSINESS
CONCERNS TO THE REGULATING POWER OF CONGRESS."  207 U.S., AT 502.  IN
FROST & FROST, THE COURT HELD THAT SINCE A PRIVATE CARRIER COULD NOT
CONSTITUTIONALLY BE CONVERTED AGAINST ITS WILL INTO A COMMON CARRIER BY
MERE LEGISLATIVE COMMAND, SUCH A CONDITION COULD NOT BE ATTACHED TO THE
CARRIER'S RIGHT TO USE THE HIGHWAYS.  BOTH CASES ARE CLEARLY
DISTINGUISHABLE BECAUSE THE CONDITION SOUGHT TO BE IMPOSED WAS DEEMED
BY THE COURT TO FALL OUTSIDE THE SCOPE OF VALID REGULATION.  THUS IN
HOWARD THE STATUTE'S APPLICATION TO INTRASTATE COMMERCE WAS DESCRIBED
AS AN ATTEMPT BY CONGRESS TO EXERCISE "POWER NOT DELEGATED TO IT BY THE
CONSTITUTION, IN OTHER WORDS,  ...  THE RIGHT TO LEGISLATE CONCERNING
MATTERS OF PURELY STATE CONCERN," 207 U.S., AT 502, AND IN FROST &
FROST THE COURT STATED THAT "THE ACT, AS THUS APPLIED, IS IN NO REAL
SENSE A REGULATION OF THE USE OF THE PUBLIC HIGHWAYS.  IT IS A
REGULATION OF THE BUSINESS OF THOSE WHO ARE ENGAGED IN USING THEM." 
271 U.S., AT 591.  HERE, IN CONTRAST, CONGRESS DOES HAVE AUTHORITY,
WITHIN ITS POWER TO REGULATE COMMERCE, TO SUBJECT INTERSTATE RAILROADS
TO SUIT UNDER THE FELA; BY IMPOSING A CONDITION REQUIRING STATE-OWNED
INTERSTATE RAILROADS TO SUBMIT TO SUCH SUIT, CONGRESS IS NOT ATTEMPTING
TO EXTEND ITS REGULATORY POWER TO OBJECTS THAT WOULD NOT OTHERWISE BE
SUBJECT TO IT, BUT RATHER TO PREVENT OBJECTS OTHERWISE SUBJECT TO THE
POWER FROM BEING UNJUSTIFIABLY EXCEPTED.  THAT CONGRESS COULD NOT MAKE
A STATE SUABLE UPON ALL CAUSES OF ACTION DOES NOT MEAN THAT IT CANNOT
DO SO WITH RESPECT TO THIS PARTICULAR CAUSE OF ACTION, WHERE IMPOSITION
OF SUCH LIABILITY IS WITHIN ITS POWER TO REGULATE COMMERCE AND WHERE
THE STATE, BY OPERATING A RAILROAD IN INTERSTATE COMMERCE, HAS
VOLUNTARILY SUBMITTED ITSELF TO THAT POWER. 

FN12  DUNN CONSTRUCTION CO. V. STATE BOARD OF ADJUSTMENT, 234 ALA.
372, 376, 175 SO. 383, 386 (1937); STATE TAX COMM'N V. COMMERCIAL
REALTY CO., 236 ALA. 358, 361, 182 SO. 31, 35 (1938). 

FN13  THIS PROVISO WAS THAT "NOTHING HEREIN CONTAINED SHALL BE
CONSTRUED TO AFFECT, IMPAIR, OR DIMINISH ANY RIGHT, POWER, OR
JURISDICTION OF  ...  ANY COURT  ...  OF THE UNITED STATES OVER OR IN
REGARD TO ANY NAVIGABLE WATERS OR ANY COMMERCE BETWEEN THE STATES  ...
."  THE COURT READ THIS AS RESERVING THE JURISDICTION OF THE FEDERAL
COURTS IN SUITS BROUGHT AGAINST THE BI-STATE AUTHORITY UNDER THE JONES
ACT OR ANY OTHER APPLICABLE CONGRESSIONAL REGULATION OF NAVIGATION OR
COMMERCE.  359 U.S., AT 281.  THE COURT'S RELIANCE ON THIS
CONGRESSIONALLY IMPOSED CONDITION IN PETTY IS ITSELF SUFFICIENT TO
REFUTE RESPONDENTS' ARGUMENT HERE THAT SINCE CONGRESS HAS NO POWER TO
"DIRECTLY STRIP A STATE OF ITS SOVEREIGN IMMUNITY," IT COULD NOT IMPOSE
SUCH SUABILITY AS A CONDITION TO THE STATE'S OPERATION OF A RAILROAD IN
INTERSTATE COMMERCE.  SEE NOTE 11, SUPRA.  IT WAS PRESUMABLY JUST AS
TRUE IN PETTY AS IT IS HERE THAT CONGRESS COULD NOT DIRECTLY SUBJECT
THE STATES TO SUIT IN MATTERS FALLING OUTSIDE THE POWER GRANTED TO
CONGRESS BY THE CONSTITUTION.  YET PETTY HELD THAT CONGRESS COULD
IMPOSE SUCH SUABILITY, AS A CONDITION TO ALLOWING THE STATES TO ENTER
INTO THE COMPACT.  SIMILARLY, CONGRESS CAN DO SO HERE AS A CONDITION TO
ALLOWING THE STATE TO OPERATE AN INTERSTATE RAILROAD.    FN14  AN
EMPLOYEE REGULATION OF RESPONDENT TERMINAL RAILWAY EXPLICITLY
RECOGNIZES THAT ITS EMPLOYEES MAY HAVE CAUSES OF ACTION UNDER THE FELA,
PROVIDING AS FOLLOWS: 

"EMPLOYEES MUST NOT MAKE ANY STATEMENT, EITHER ORAL OR WRITTEN,
CONCERNING ANY ACCIDENT, CLAIM OR SUIT IN WHICH THE COMPANY IS, OR MAY
BE INVOLVED, TO ANY PERSON OTHER THAN AN AUTHORIZED REPRESENTATIVE OF
THE RAILWAY, WITHOUT PERMISSION, EXCEPT IN CASES ARISING UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT, OTHERWISE KNOWN AS 'AN ACT RELATING
TO THE LIABILITY OF COMMON CARRIERS BY RAILROAD TO THEIR EMPLOYEES IN
CERTAIN CASES.'" 

THE EXCEPTION FOR CASES ARISING UNDER THE FELA IS REQUIRED BY 45
U.S.C. SEC 60.  ASKED ABOUT THIS REGULATION, RESPONDENTS' COUNSEL SAID
ON ORAL ARGUMENT THAT IT DID NOT INDICATE AN INTENTION TO BE SUBJECT TO
THE ACT, AND COULD NOT DO SO IN THE FACE OF THE ALABAMA CONSTITUTION,
SEE P. 194, SUPRA, BUT HAD BEEN INCLUDED INADVERTENTLY WHEN THE RAILWAY
WAS ADOPTING A NUMBER OF REGULATIONS BASED UPON THOSE USED BY A PRIVATE
RAILROAD CARRIER.  NEVERTHELESS, THE PRESENCE OF THIS REGULATION ON THE
TERMINAL RAILWAY'S BOOKS ILLUSTRATES, WE THINK, THE INCONGRUITY OF
CONSIDERING THIS RAILROAD TO BE IMMUNE FROM A STATUTORY OBLIGATION
IMPOSED ON PRIVATELY OWNED RAILROADS THAT ARE SIMILAR IN EVERY MATERIAL
RESPECT. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE HARLAN,
AND MR. JUSTICE STEWART JOIN, DISSENTING. 

I AGREE THAT IT IS WITHIN THE POWER OF CONGRESS TO CONDITION A
STATE'S PERMIT TO ENGAGE IN THE INTERSTATE TRANSPORTATION BUSINESS ON A
WAIVER OF THE STATE'S SOVEREIGN IMMUNITY FROM SUITS ARISING OUT OF SUCH
BUSINESS.  CONGRESS MIGHT WELL DETERMINE THAT ALLOWING REGULABLE
CONDUCT SUCH AS THE OPERATION OF A RAILROAD TO BE UNDERTAKEN BY A BODY
LEGALLY IMMUNE FROM LIABILITY DIRECTLY RESULTING FROM THESE OPERATIONS
IS SO INIMICAL TO THE PURPOSES OF ITS REGULATION THAT THE STATE MUST BE
PUT TO THE OPTION OF EITHER FOREGOING PARTICIPATION IN THE CONDUCT OR
CONSENTING TO LEGAL RESPONSIBILITY FOR INJURY CAUSED THEREBY. 

HOWEVER, THE DECISION TO IMPOSE SUCH CONDITIONS IS FOR CONGRESS AND
NOT FOR THE COURTS.  THE MAJORITY TODAY FOLLOWS THE COURT'S CONSISTENT
HOLDINGS THAT AN UNCONSENTING STATE IS CONSTITUTIONALLY IMMUNE FROM
FEDERAL COURT SUITS BROUGHT BY ITS OWN CITIZENS AS WELL AS BY CITIZENS
OF OTHER STATES.  IT SHOULD NOT BE EASILY INFERRED THAT CONGRESS, IN
LEGISLATING PURSUANT TO ONE ARTICLE OF THE CONSTITUTION, INTENDED TO
EFFECT AN AUTOMATIC AND COMPULSORY WAIVER OF RIGHTS ARISING UNDER
ANOTHER.  ONLY WHEN CONGRESS HAS CLEARLY CONSIDERED THE PROBLEM AND
EXPRESSLY DECLARED THAT ANY STATE WHICH UNDERTAKES GIVEN REGULABLE
CONDUCT WILL BE DEEMED THEREBY TO HAVE WAIVED ITS IMMUNITY SHOULD
COURTS DISALLOW THE INVOCATION OF THIS DEFENSE.  PARTICULAR DEFERENCE
WHOULD BE ACCORDED THAT "OLD AND WELL-KNOWN RULE THAT STATUTES WHICH IN
GENERAL TERMS DIVEST PRE-EXISTING RIGHTS OR PRIVILEGES WILL NOT BE
APPLIED TO THE SOVEREIGN WITHOUT EXPRESS WORDS TO THAT EFFECT," UNITED
STATES V. MINE WORKERS, 330 U.S. 258, 272, WHERE THE RIGHTS AND
PRIVILEGES FIND THEIR ORIGIN IN THE CONSTITUTION.  FAR FROM MANIFESTING
SUCH AN UNEQUIVOCAL DETERMINATION, THE LEGISLATIVE HISTORY OF THE
FEDERAL EMPLOYERS' LIABILITY ACT INDICATES THAT CONGRESS DID NOT EVEN
CONSIDER THE POSSIBLE IMPACT OF ITS LEGISLATION UPON STATE IMMUNITY
FROM SUITS.  THE EXPRESSED PURPOSE OF THE ACT WAS "TO CHANGE THE COMMON
LAW LIABILITY OF EMPLOYERS."  (FN1)  CERTAIN SPECIFIC DEFENSES
AVAILABLE TO A RAILROAD EMPLOYER IN AN EMPLOYEE'S PERSONAL INJURY SUIT
WERE REMOVED, BUT SOVEREIGN IMMUNITY WAS NOT ONE OF THEM.  TO REQUIRE
ALABAMA'S IMMUNITY DEFENSE TO YIELD BECAUSE OF A CLAIMED INCONSISTENCY
WITH LANGUAGE OF THE ACT MAKING ITS PROVISONS APPLICABLE TO "EVERY
COMMON CARRIER BY RAILROAD WHILE ENGAGING IN COMMERCE" RELEGATES THE
STATES' CONSTITUTIONAL IMMUNITY, NOT EVEN MENTIONED IN THE ACT, TO THE
LEVEL OF STATE STATUTORY OR COMMON-LAW DEFENSES, FOUR OF WHICH THE
STATUTE EXPRESSLY PROSCRIBED.  A DECENT RESPECT FOR THE NORMALLY
PREFERRED POSITION OF CONSTITUTIONAL RIGHTS DICTATES THAT IF CONGRESS
DECIDES TO EXERCISE ITS POWER TO CONDITION PRIVILEGES WITHIN ITS
CONTROL ON THE FORFEITURE OF CONSTITUTIONAL RIGHTS ITS INTENTION TO DO
SO SHOULD APPEAR WITH UNMISTAKABLE CLARITY. 

IN PREVIOUS OPINIONS THE COURT HAS INDICATED THAT WAIVER OF SOVEREIGN
IMMUNITY WILL BE FOUND ONLY WHERE STATED BY "THE MOST EXPRESS LANGUAGE
OR BY SUCH OVERWHELMING IMPLICATION FROM THE TEXT AS WOULD LEAVE NO
ROOM FOR ANY OTHER REASONABLE CONSTRUCTION."  MURRAY V. WILSON
DISTILLING CO., 213 U.S. 151, 171.  SEE FORD MOTOR CO. V. DEPARTMENT OF
TREASURY, 323 U.S. 459, 468-470.  IF THE AUTOMATIC CONSEQUENCE OF STATE
OPERATION OF A RAILROAD IN INTERSTATE COMMERCE IS TO BE WAIVER OF
SOVEREIGN IMMUNITY, CONGRESS' FAILURE TO BRING HOME TO THE STATE THE
PRECISE NATURE OF ITS OPTION MAKES IMPOSSIBLE THE "INTENTIONAL
RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE" WHICH MUST
BE SHOWN BEFORE CONSTITUTIONAL RIGHTS MAY BE TAKEN TO HAVE BEEN
WAIVED.  JOHNSON V. ZERBST, 304 U.S. 458, 464; FAY V. NOIA, 372 U.S.
391.  THE MAJORITY IN EFFECT HOLDS THAT WITH REGARD TO SOVEREIGN
IMMUNITY, WAIVER OF A CONSTITUTIONAL PRIVILEGE NEED BE NEITHER KNOWING
NOR INTELLIGENT.  (FN2) 

PREFERRING TO LEAVE THE LIMITING OF CONSTITUTIONAL DEFENSES TO THAT
BODY EMPOWERED TO IMPOSE SUCH CONDITIONS, I RESPECTFULLY DISSENT. 

FN1  H.R. REP. NO. 1386, 60TH CONG., 1ST SESS., 1 (1908).  IN DEBATE
ON THE HOUSE FLOOR REPRESENTATIVE HENRY ALSO SUMMARIZED THE ACT AS
HAVING "CHANGED FOUR RULES OF THE COMMON LAW."  42 CONG. REC. 4427. 

FN2  PETTY V. TENNESSEE-MISSOURI BRIDGE COMM'N, 359 U.S. 275;
CALIFORNIA V. TAYLOR, 353 U.S. 553, AND UNITED STATES V. CALIFORNIA,
297 U.S. 175, ARE ALL INAPPOSITE.  IN PETTY THERE WAS AN EXPRESS
WAIVER, THE COMPACT ITSELF EXPRESSLY DECLARING THAT THE BI-STATE
AUTHORITY COULD "SUE AND BE SUED."  TAYLOR WAS NOT A SUIT AGAINST A
STATE BUT AGAINST THE MEMBERS OF THE NATIONAL RAILROAD ADJUSTMENT BOARD
REQUIRING THEM TO TAKE ACTION ON THE PLAINTIFFS' CLAIMS UNDER THE
RAILWAY LABOR ACT.  THOUGH THE COURT HELD THE ACT APPLICABLE TO THE
STATE BELT RAILROAD IT EXPRESSLY DISCLAIMED DECIDING ANY SOVEREIGN
IMMUNITY ISSUE.  FOOTNOTE 16 OF THAT OPINION STATES: "THE CONTENTION OF
THE STATE THAT THE ELEVENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES WOULD BAR AN EMPLOYEE OF THE BELT RAILROAD FROM ENFORCING AN
AWARD BY THE NATIONAL RAILROAD ADJUSTMENT BOARD IN A SUIT AGAINST THE
STATE IN A UNITED STATES DISTRICT COURT UNDER SEC 3, FIRST (P), OF THE
ACT IS NOT BEFORE US UNDER THE FACTS OF THIS CASE."  353 U.S., AT 568. 
AND THE SUIT TO RECOVER THE STATUTORY PENALTY FOR VIOLATION OF THE
FEDERAL SAFETY APPLIANCE ACT IN UNITED STATES V. CALIFORNIA WAS BROUGHT
BY THE UNITED STATES, AGAINST WHOM IT HAS LONG BEEN RECOGNIZED THERE IS
NO STATE SOVEREIGN IMMUNITY.  UNITED STATES V. TEXAS, 143 U.S. 621. 
..END :





MASSIAH V. UNITED STATES 377 U.S. 201 


NO. 199.  ARGUED MARCH 3, 1964.  - DECIDED MAY 18, 1964.  - 307 F.2D 62,
REVERSED. 


GOVERNMENT AGENTS, WHILE CONTINUING TO INVESTIGATE NARCOTICS
ACTIVITIES INCLUDING THOSE OF PETITIONER, WHO HAD RETAINED A LAWYER AND
WAS FREE ON BAIL AFTER INDICTMENT, WITHOUT PETITIONER'S KNOWLEDGE
SECURED AN ALLEGED CONFEDERATE'S CONSENT TO INSTALL A RADIO TRANSMITTER
IN THE LATTER'S AUTOMOBILE.  AN AGENT WAS THEREBY ENABLED TO OVERHEAR
PETITIONER'S DAMAGING STATEMENTS WHICH, DESPITE HIS OBJECTION, WERE
USED IN THE TRIAL WHICH RESULTED IN HIS CONVICTION.  HELD:
INCRIMINATING STATEMENTS THUS DELIBERATELY ELICITED BY FEDERAL AGENTS
FROM THE PETITIONER, IN THE ABSENCE OF HIS ATTORNEY, DEPRIVED THE
PETITIONER OF HIS RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT; THEREFORE
SUCH STATEMENTS COULD NOT CONSTITUTIONALLY BE USED AS EVIDENCE AGAINST
HIM IN HIS TRIAL.  PP. 201-207. 

MASSIAH V. UNITED STATES. 

CERTIORARI TO THE UNITED STATE COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS INDICTED FOR VIOLATING THE FEDERAL NARCOTICS
LAWS.  HE RETAINED A LAWYER, PLEADED NOT GUILTY, AND WAS RELEASED ON
BAIL.  WHILE HE WAS FREE ON BAIL A FEDERAL AGENT SUCCEEDED BY
SURREPTITIOUS MEANS IN LISTENING TO INCRIMINATING STATEMENTS MADE BY
HIM.  EVIDENCE OF THESE STATEMENTS WAS INTRODUCED AGAINST THE
PETITIONER AT HIS TRIAL OVER HIS OBJECTION.  HE WAS CONVICTED, AND THE
COURT OF APPEALS AFFIRMED.  (FN1)  WE GRANTED CERTIORARI TO CONSIDER
WHETHER, UNDER THE CIRCUMSTANCES HERE PRESENTED, THE PROSECUTION'S USE
AT THE TRIAL OF EVIDENCE OF THE PETITIONER'S OWN INCRIMINATING
STATEMENTS DEPRIVED HIM OF ANY RIGHT SECURED TO HIM UNDER THE FEDERAL
CONSTITUTION.  374 U.S. 805. 

THE PETITIONER, A MERCHANT SEAMAN, WAS IN 1958 A MEMBER OF THE CREW
OF THE S.S. SANTA MARIA.  IN APRIL OF THAT YEAR FEDERAL CUSTOMS
OFFICIALS IN NEW YORK RECEIVED INFORMATION THAT HE WAS GOING TO
TRANSPORT A QUANTITY OF NARCOTICS ABOARD THAT SHIP FROM SOUTH AMERICA
TO THE UNITED STATES.  AS A RESULT OF THIS AND OTHER INFORMATION, THE
AGENTS SEARCHED THE SANTA MARIA UPON ITS ARRIVAL IN NEW YORK AND FOUND
IN THE AFTERPEAK OF THE VESSEL FIVE PACKAGES CONTAINING ABOUT THREE AND
A HALF POUNDS OF COCAINE.  HE WAS ARRESTED, PROMPTLY ARRAIGNED, AND
SUBSEQUENTLY INDICTED FOR POSSESSION OF NARCOTICS ABOARD A UNITED
STATES VESSEL.  (FN2)  IN JULY A SUPERSEDING INDICTMENT WAS RETURNED,
CHARGING THE PETITIONER, COLSON, AND OTHERS WITH HAVING CONSPIRED TO
POSSESS NARCOTICS ABOARD A UNITED STATES VESSEL AND TO IMPORT, CONCEAL,
AND FACILITATE THE SALE OF NARCOTICS.  (FN3)  THE PETITIONER, WHO HAD
RETAINED A LAWYER, PLEADED NOT GUILTY AND WAS RELEASED ON BAIL, ALONG
WITH COLSON. 

A FEW DAYS LATER, AND QUITE WITHOUT THE PETITIONER'S KNOWLEDGE,
COLSON DECIDED TO COOPERATE WITH THE GOVERNMENT AGENTS IN THEIR
CONTINUING INVESTIGATION OF THE NARCOTICS ACTIVITIES IN WHICH THE
PETITIONER, COLSON, AND OTHERS HAD ALLEGEDLY BEEN ENGAGED.  COLSON
PERMITTED AN AGENT NAMED MURPHY TO INSTALL A SCHMIDT RADIO TRANSMITTER
UNDER THE FRONT SEAT OF COLSON'S AUTOMOBILE, BY MEANS OF WHICH MURPHY,
EQUIPPED WITH AN APPROPRIATE RECEIVING DEVICE, COULD OVERHEAR FROM SOME
DISTANCE AWAY CONVERSATIONS CARRIED ON IN COLSON'S CAR. 

ON THE EVENING OF NOVEMBER 19, 1959, COLSON AND THE PETITIONER HELD A
LENGTHY CONVERSATION WHILE SITTING IN COLSON'S AUTOMOBILE, PARKED ON A
NEW YORK STREET.  BY PREARRANGEMENT WITH COLSON, AND TOTALLY UNBEKNOWN
TO THE PETITIONER, THE AGENT MURPHY SAT IN A CAR PARKED OUT OF SIGHT
DOWN THE STREET AND LISTENED OVER THE RADIO TO THE ENTIRE
CONVERSATION.  THE PETITIONER MADE SEVERAL INCRIMINATING STATEMENTS
DURING THE COURSE OF THIS CONVERSATION.  AT THE PETITIONER'S TRIAL
THESE INCRIMINATING STATEMENTS WERE BROUGHT BEFORE THE JURY THROUGH
MURPHY'S TESTIMONY, DESPITE THE INSISTENT OBJECTION OF DEFENSE
COUNSEL.  THE JURY CONVICTED THE PETITIONER OF SEVERAL RELATED
NARCOTICS OFFENSES, AND THE CONVICTIONS WERE AFFIRMED BY THE COURT OF
APPEALS.  (FN4) 

THE PETITIONER ARGUES THAT IT WAS AN ERROR OF CONSTITUTIONAL
DIMENSIONS TO PERMIT THE AGENT MURPHY AT THE TRIAL TO TESTIFY TO THE
PETITIONER'S INCRIMINATING STATEMENTS WHICH MURPHY HAD OVERHEARD UNDER
THE CIRCUMSTANCES DISCLOSED BY THIS RECORD.  THIS ARGUMENT IS BASED
UPON TWO DISTINCT AND INDEPENDENT GROUNDS.  FIRST, WE ARE TOLD THAT
MURPHY'S USE OF THE RADIO EQUIPMENT VIOLATED THE PETITIONER'S RIGHTS
UNDER THE FOURTH AMENDMENT, AND, CONSEQUENTLY, THAT ALL EVIDENCE WHICH
MURPHY THEREBY OBTAINED WAS, UNDER THE RULE OF WEEKS V. UNITED STATES,
232 U.S. 383, INADMISSIBLE AGAINST THE PETITIONER AT THE TRIAL. 
SECONDLY, IT IS SAID THAT THE PETITIONER'S FIFTH AND SIXTH AMENDMENT
RIGHTS WERE VIOLATED BY THE USE IN EVIDENCE AGAINST HIM OF
INCRIMINATING STATEMENTS WHICH GOVERNMENT AGENTS HAD DELIBERATELY
ELICITED FROM HIM AFTER HE HAD BEEN INDICTED AND IN THE ABSENCE OF HIS
RETAINED COUNSEL.  BECAUSE OF THE WAY WE DISPOSE OF THE CASE, WE DO NOT
REACH THE FOURTH AMENDMENT ISSUE. 

IN SPANO V. NEW YORK, 360 U.S. 315, THIS COURT REVERSED A STATE
CRIMINAL CONVICTION BECAUSE A CONFESSION HAD BEEN WRONGLY ADMITTED INTO
EVIDENCE AGAINST THE DEFENDANT AT HIS TRIAL.  IN THAT CASE THE
DEFENDANT HAD ALREADY BEEN INDICTED FOR FIRST-DEGREE MURDER AT THE TIME
HE CONFESSED.  THE COURT HELD THAT THE DEFENDANT'S CONVICTION COULD NOT
STAND UNDER THE FOURTEENTH AMENDMENT.  WHILE THE COURT'S OPINION RELIED
UPON THE TOTALITY OF THE CIRCUMSTANCES UNDER WHICH THE CONFESSION HAD
BEEN OBTAINED, FOUR CONCURRING JUSTICES POINTED OUT THAT THE
CONSTITUTION REQUIRED REVERSAL OF THE CONVICTION UPON THE SOLE AND
SPECIFIC GROUND THAT THE CONFESSION HAD BEEN DELIBERATELY ELICITED BY
THE POLICE AFTER THE DEFENDANT HAD BEEN INDICTED, AND THEREFORE AT A
TIME WHEN HE WAS CLEARLY ENTITLED TO A LAWYER'S HELP.  IT WAS POINTED
OUT THAT UNDER OUR SYSTEM OF JUSTICE THE MOST ELEMENTAL CONCEPTS OF DUE
PROCESS OF LAW CONTEMPLATE THAT AN INDICTMENT BE FOLLOWED BY A TRIAL,
"IN AN ORDERLY COURTROOM, PRESIDED OVER BY A JUDGE, OPEN TO THE PUBLIC,
AN PROTECTED BY ALL THE PROCEDURAL SAFEGUARDS OF THE LAW."  360 U.S.,
AT 327 (STEWART, J., CONCURRING).  IT WAS SAID THAT A CONSTITUTION
WHICH GUARANTEES A DEFENDANT THE AID OF COUNSEL AT SUCH A TRIAL COULD
SURELY VOUCHSAFE NO LESS TO AN INDICTED DEFENDANT UNDER INTERROGATION
BY THE POLICE IN A COMPLETELY EXTRAJUDICIAL PROCEEDING.  ANYTHING LESS,
IT WAS SAID, MIGHT DENY A DEFENDANT "EFFECTIVE REPRESENTATION BY
COUNSEL AT THE ONLY STAGE WHEN LEGAL AID AND ADVICE WOULD HELP HIM." 
360 U.S., AT 326 (DOUGLAS, J., CONCURRING). 

EVER SINCE THIS COURT'S DECISION IN THE SPANO CASE, THE NEW YORK
COURTS HAVE UNEQUIVOCALLY FOLLOWED THIS CONSTITUTIONAL RULE.  "ANY
SECRET INTERROGATION OF THE DEFENDANT, FROM AND AFTER THE FINDING OF
THE INDICTMENT, WITHOUT THE PROTECTION AFFORDED BY THE PRESENCE OF
COUNSEL, CONTRAVENES THE BASIC DICTATES OF FAIRNESS IN THE CONDUCT OF
CRIMINAL CAUSES AND THE FUNDAMENTAL RIGHTS OF PERSONS CHARGED WITH
CRIME."  PEOPLE V. WATERMAN, 9 N.Y.2D 561, 565, 175 N.E.2D 445, 448. 
(FN5) 

THIS VIEW NO MORE THAN REFLECTS A CONSTITUTIONAL PRINCIPLE
ESTABLISHED AS LONG AGO AS POWELL V. ALABAMA, 287 U.S. 45, WHERE THE
COURT NOTED THAT "  ...  DURING PERHAPS THE MOST CRITICAL PERIOD OF THE
PROCEEDINGS  ...  THAT IS TO SAY, FROM THE TIME OF THEIR ARRAIGNMENT
UNTIL THE BEGINNING OF THEIR TRIAL, WHEN CONSULTATION, THOROUGHGOING
INVESTIGATION AND PREPARATION ARE VITALLY IMPORTANT, THE DEFENDANTS
...  ARE AS MUCH ENTITLED TO SUCH AID OF COUNSEL DURING THAT PERIOD AS
AT THE TRIAL ITSELF."  ID., AT 57.  AND SINCE THE SPANO DECISION THE
SAME BASIC CONSTITUTIONAL PRINCIPLE HAS BEEN BROADLY REAFFIRMED BY THIS
COURT.  HAMILTON V. ALABAMA, 368 U.S. 52; WHITE V. MARYLAND, 373 U.S.
59.   SEE GIDEON V. WAINWRIGHT, 372 U.S. 335. 

HERE WE DEAL NOT WITH A STATE COURT CONVICTION, BUT WITH A FEDERAL
CASE, WHERE THE SPECIFIC GUARANTEE OF THE SIXTH AMENDMENT DIRECTLY
APPLIES.  (FN6)  JOHNSON V. ZERBST, 304 U.S. 458.  WE HOLD THAT THE
PETITIONER WAS DENIED THE BASIC PROTECTIONS OF THAT GUARANTEE WHEN
THERE WAS USED AGAINST HIM AT HIS TRIAL EVIDENCE OF HIS OWN
INCRIMINATING WORDS, WHICH FEDERAL AGENTS HAD DELIBERATELY ELICITED
FROM HIM AFTER HE HAD BEEN INDICTED AND IN THE ABSENCE OF HIS COUNSEL. 
IT IS TRUE THAT IN THE SPANO CASE THE DEFENDANT WAS INTERROGATED IN A
POLICE STATION, WHILE HERE THE DAMAGING TESTIMONY WAS ELICITED FROM THE
DEFENDANT WITHOUT HIS KNOWLEDGE WHILE HE WAS FREE ON BAIL.  BUT, AS
JUDGE HAYS POINTED OUT IN HIS DISSENT IN THE COURT OF APPEALS, "IF SUCH
A RULE IS TO HAVE ANY EFFICACY IT MUST APPLY TO INDIRECT AND
SURREPTITIOUS INTERROGATIONS AS WELL AS THOSE CONDUCTED IN THE
JAILHOUSE.  IN THIS CASE, MASSIAH WAS MORE SERIOUSLY IMPOSED UPON  ...
BECAUSE HE DID NOT EVEN KNOW THAT HE WAS UNDER INTERROGATION BY A
GOVERNMENT AGENT."  307 F.2D, AT 72-73. 

THE SOLICITOR GENERAL, IN HIS BRIEF AND ORAL ARGUMENT, HAS
STRENUOUSLY CONTENDED THAT THE FEDERAL LAW ENFORCEMENT AGENTS HAD THE
RIGHT, IF NOT INDEED THE DUTY, TO CONTINUE THEIR INVESTIGATION OF THE
PETITIONER AND HIS ALLEGED CRIMINAL ASSOCIATES EVEN THOUGH THE
PETITIONER HAD BEEN INDICTED.  HE POINTS OUT THAT THE GOVERNMENT WAS
CONTINUING ITS INVESTIGATION IN ORDER TO UNCOVER NOT ONLY THE SOURCE OF
NARCOTICS FOUND ON THE S.S. SANTA MARIA, BUT ALSO THEIR INTENDED
BUYER.  HE SAYS THAT THE QUANTITY OF NARCOTICS INVOLVED WAS SUCH AS TO
SUGGEST THAT THE PETITIONER WAS PART OF A LARGE AND WELL-ORGANIZED
RING, AND INDEED, THAT THE CONTINUING INVESTIGATION CONFIRMED THIS
SUSPICION, SINCE IT RESULTED IN CRIMINAL CHARGES AGAINST MANY
DEFENDANTS.  UNDER THESE CIRCUMSTANCES THE SOLICITOR GENERAL CONCLUDES
THAT THE GOVERNMENT AGENTS WERE COMPLETELY "JUSTIFIED IN MAKING USE OF
COLSON'S COOPERATION BY HAVING COLSON CONTINUE HIS NORMAL ASSOCIATIONS
AND BY SURVEILLING THEM. 

WE MAY ACCEPT AND, AT LEAST FOR PRESENT PURPOSES, COMPLETELY APPROVE
ALL THAT THIS ARGUMENT IMPLIES, FOURTH AMENDMENT PROBLEMS TO ONE SIDE. 
WE DO NOT QUESTION THAT IN THIS CASE, AS IN MANY CASES, IT WAS ENTIRELY
PROPER TO CONTINUE AN INVESTIGATION OF THE SUSPECTED CRIMINAL
ACTIVITIES OF THE DEFENDANT AND HIS ALLEGED CONFEDERATES, EVEN THOUGH
THE DEFENDANT HAD ALREADY BEEN INDICTED.  ALL THAT WE HOLD IS THAT THE
DEFENDANT'S OWN INCRIMINATING STATEMENTS, OBTAINED BY FEDERAL AGENTS
UNDER THE CIRCUMSTANCES HERE DISCLOSED, COULD NOT CONSTITUTIONALLY BE
USED BY THE PROSECUTION AS EVIDENCE AGAINST HIM AT HIS TRIAL. 
REVERSED. 

FN1  307 F.2D 62 

FN2  21 U.S.C. SEC 184A. 

FN3  21 U.S.C. SECS 173, 174. 

FN4  THE PETITIONER'S TRIAL WAS UPON A SECOND SUPERSEDING INDICTMENT
WHICH HAD BEEN RETURNED ON MARCH 3, 1961, AND WHICH INCLUDED ADDITIONAL
COUNTS AGAINST HIM AND OTHER DEFENDANTS.  THE COURT OF APPEALS REVERSED
HIS CONVICTION UPON A CONSPIRACY COUNT, ONE JUDGE DISSENTING, BUT
AFFIRMED HIS CONVICTIONS UPON THREE SUBSTANTIVE COUNTS, ONE JUDGE
DISSENTING.  307 F.2D 62. 

FN5  SEE ALSO PEOPLE V. DAVIS, 13 N.Y.2D 690, 191 N.E.2D 674, 241
N.Y.S.2D 172 (1963); PEOPLE V. RODRIGUEZ, 11 N.Y.2D 279, 183 N.E.2D
651, 229 N.Y.S.2D 353 (1962); PEOPLE V. MEYER, 11 N.Y.2D 162, 182
N.E.2D 103, 227 N.Y.S.2D 427 (1962); PEOPLE V. DI BIASI, 7 N.Y.2D 544,
166 N.E.2D 825, 200 N.Y.S.2D 21 (1960); PEOPLE V. SWANSON, 18 APP. DIV.
2D 832, 237 N.Y.S.2D 400 (2D DEPT. 1963); PEOPLE V. PRICE, 18 APP. DIV.
2D 739, 235 N.Y.S.2D 390 (3D DEPT. 1962); PEOPLE V. WALLACE, 17 APP.
DIV. 2D 981, 234 N.Y.S.2D 579 (2D DEPT. 1962); PEOPLE V. KARMEL, 17
APP. DIV. 2D 659, 230 N.Y.S.2D 413 (2D DEPT. 1962); PEOPLE V. ROBINSON,
16 APP. DIV. 2D 184, 224 N.Y.S.2D 705 (4TH DEPT. 1962). 

FN6  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT
...  TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE CLARK AND MR. JUSTICE HARLAN
JOIN, DISSENTING. 

THE CURRENT INCIDENCE OF SERIOUS VIOLATIONS OF THE LAW REPRESENTS NOT
ONLY AN APPALLING WASTE OF THE POTENTIALLY HAPPY AND USEFUL LIVES OF
THOSE WHO ENGAGE IN SUCH CONDUCT BUT ALSO AN OVERHANGING, DANGEROUS
THREAT TO THOSE UNIDENTIFIED AND INNOCENT POEPLE WHO WILL BE VICTIMS OF
CRIME TODAY AND TOMORROW.  THIS IS A FESTERING PROBLEM FOR WHICH NO
ADEQUATE CURES HAVE YET BEEN DEVISED.  AT THE VERY LEAST THERE IS MUCH
ROOM FOR DISCONTENT WITH REMEDIAL MEASURES SO FAR UNDERTAKEN.  AND
ADMITTEDLY THERE REMAINS MUCH TO BE SETTLED CONCERNING THE DISPOSITION
TO BE MADE OF THOSE WHO VIOLATE THE LAW. 

BUT DISSATISFACTION WITH PREVENTIVE PROGRAMS AIMED AT ELIMINATING
CRIME AND PROFOUND DISPUTE ABOUT WHETHER WE SHOULD PUNISH, DETER,
REHABILITATE OR CURE CANNOT EXCUSE CONCEALING ONE OF OUR MOST MENACING
PROBLEMS UNTIL THE MILLENNIUM HAS ARRIVED.  IN MY VIEW, A CIVILIZED
SOCIETY MUST MAINTAIN ITS CAPACITY TO DISCOVER TRANSGRESSIONS OF THE
LAW AND TO IDENTIFY THOSE WHO FLOUT IT.  THIS MUCH IS NECESSARY EVEN TO
KNOW THE SCOPE OF THE PROBLEM, MUCH LESS TO FORMULATE INTELLIGENT
COUNTERMEASURES.   IT WILL JUST NOT DO TO SWEEP THESE DISAGREEABLE
MATTERS UNDER THE RUG OR TO PRETEND THEY ARE NOT THERE AT ALL. 

IT IS THEREFORE A RATHER PORTENTOUS OCCASION WHEN A CONSTITUTIONAL
RULE IS ESTABLISHED BARRING THE USE OF EVIDENCE WHICH IS RELEVANT,
RELIABLE AND HIGHLY PROBATIVE OF THE ISSUE WHICH THE TRIAL COURT HAS
BEFORE IT - WHETHER THE ACCUSED COMMITTED THE ACT WITH WHICH HE IS
CHARGED.  WITHOUT THE EVIDENCE, THE QUEST FOR TRUTH MAY BE SERIOUSLY
IMPEDED AND IN MANY CASES THE TRIAL COURT, ALTHOUGH AWARE OF PROOF
SHOWING DEFENDANT'S GUILT, MUST NEVERTHELESS RELEASE HIM BECAUSE THE
CRUCIAL EVIDENCE IS DEEMED INADMISSIBLE.  THIS RESULT IS ENTIRELY
JUSTIFIED IN SOME CIRCUMSTANCES BECAUSE EXCLUSION SERVES OTHER POLICIES
OF OVERRIDING INPORTANCE, AS WHERE EVIDENCE SEIZED IN AN ILLEGAL SEARCH
IS EXCLUDED, NOT BECAUSE OF THE QUALITY OF THE PROOF, BUT TO SECURE
MEANINGFUL ENFORCEMENT OF THE FOURTH AMENDMENT.  WEEKS V. UNITED
STATES, 232 U.S. 383; MAPP V. OHIO, 367 U.S. 643.  BUT THIS ONLY
EMPHASIZES THAT THE SOUNDEST OF REASONS IS NECESSARY TO WARRANT THE
EXCLUSION OF EVIDENCE OTHERWISE ADMISSIBLE AND THE CREATION OF ANOTHER
AREA OF PRIVILEGED TESTIMONY.  WITH ALL DUE DEFERENCE, I AM NOT AT ALL
CONVINCED THAT THE ADDITIONAL BARRIERS TO THE PURSUIT OF TRUTH WHICH
THE COURT TODAY ERECTS REST ON ANYTHING LIKE THE SOLID FOUNDATIONS
WHICH DECISIONS OF THIS GRAVITY SHOULD REQUIRE.    THE IMPORTANCE OF
THE MATTER SHOULD NOT BE UNDERESTIMATED, FOR TODAY'S RULE PROMISES TO
HAVE WIDE APPLICATION WELL BEYOND THE FACTS OF THIS CASE.  THE REASON
GIVEN FOR THE RESULT HERE - THE ADMISSIONS WERE OBTAINED IN THE ABSENCE
OF COUNSEL - WOULD SEEM EQUALLY PERTINENT TO STATEMENTS OBTAINED AT ANY
TIME AFTER THE RIGHT TO COUNSEL ATTACHES, WHETHER THERE HAS BEEN AN
INDICTMENT OR NOT; TO ADMISSIONS MADE PRIOR TO ARRAIGNMENT, AT LEAST
WHERE THE DEFENDANT HAS COUNSEL OR ASKS FOR IT; TO THE FRUITS OF
ADMISSIONS IMPROPERLY OBTAINED UNDER THE NEW RULE; TO CRIMINAL
PROCEEDINGS IN STATE COURTS; AND TO DEFENDANTS LONG SINCE CONVICTED
UPON EVIDENCE INCLUDING SUCH ADMISSIONS.  THE NEW RULE WILL IMMEDIATELY
DO SERVICE IN A GREAT MANY CASES. 

WHATEVER THE CONTENT OR SCOPE OF THE RULE MAY PROVE TO BE, I AM
UNABLE TO SEE HOW THIS CASE PRESENTS AN UNCONSTITUTIONAL INTERFERENCE
WITH MASSIAH'S RIGHT TO COUNSEL.  MASSIAH WAS NOT PREVENTED FROM
CONSULTING WITH COUNSEL AS OFTEN AS HE WISHED.  NO MEETINGS WITH
COUNSEL WERE DISTURBED OR SPIED UPON.  PREPARATION FOR TRIAL WAS IN NO
WAY OBSTRUCTED.  IT IS ONLY A STERILE SYLLOGISM - AN UNSOUND ONE,
BESIDES - TO SAY THAT BECAUSE MASSIAH HAD A RIGHT TO COUNSEL'S AID
BEFORE AND DURING THE TRIAL, HIS OUT-OF-COURT CONVERSATIONS AND
ADMISSIONS MUST BE EXCLUDED IF OBTAINED WITHOUT COUNSEL'S CONSENT OR
PRESENCE.  THE RIGHT TO COUNSEL HAS NEVER MEANT AS MUCH BEFORE, CICENIA
V. LAGAY, 357 U.S. 504; CROOKER V. CALIFORNIA, 357 U.S. 433, AND ITS
EXTENSION IN THIS CASE REQUIRES SOME FURTHER EXPLANATION, SO FAR
UNARTICULATED BY THE COURT. 

SINCE THE NEW RULE WOULD EXCLUDE ALL ADMISSIONS MADE TO THE POLICE,
NO MATTER HOW VOLUNTARY AND RELIABLE, THE REQUIREMENT OF COUNSEL'S
PRESENCE OR APPROVAL WOULD SEEM TO REST UPON THE PROBABILITY THAT
COUNSEL WOULD FORECLOSE ANY ADMISSIONS AT ALL.  THIS IS NOTHING MORE
THAN A THINLY DISGUISED CONSTITUTIONAL POLICY OF MINIMIZING OR ENTIRELY
PROHIBITING THE USE IN EVIDENCE OF VOLUNTARY OUT-OF-COURT ADMISSIONS
AND CONFESSIONS MADE BY THE ACCUSED.  CARRIED AS FAR AS BLIND LOGIC MAY
COMPEL SOME TO GO, THE NOTION THAT STATEMENTS FROM THE MOUTH OF THE
DEFENDANT SHOULD NOT BE USED IN EVIDENCE WOULD HAVE A SEVERE AND
UNFORTUNATE IMPACT UPON THE GREAT BULK OF CRIMINAL CASES. 

VIEWED IN THIS LIGHT, THE COURT'S NEWLY FASHIONED EXCLUSIONARY
PRINCIPLE GOES FAR BEYOND THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION, WHICH NEITHER REQUIRES NOR SUGGESTS THE BARRING OF
VOLUNTARY PRETRIAL ADMISSIONS.  THE FIFTH AMENDMENT STATES THAT NO
PERSON "SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF  ...  ."  THE DEFENDANT MAY THUS NOT BE COMPELLED TO TESTIFY AT
HIS TRIAL, BUT HE MAY IF HE WISHES.  LIKEWISE HE MAY NOT BE COMPELLED
OR COERCED INTO SAYING ANYTHING BEFORE TRIAL; BUT UNTIL TODAY HE COULD
IF HE WISHED TO, AND IF HE DID, IT COULD BE USED AGAINST HIM.  WHETHER
AS A MATTER OF SELF-INCRIMINATION OR OF DUE PROCESS, THE PROSCRIPTION
IS AGAINST COMPULSION - COERCED INCRIMINATION.  UNDER THE PRIOR LAW,
ANNOUNCED IN COUNTLESS CASES IN THIS COURT, THE DEFENDANT'S PRETRIAL
STATEMENTS WERE ADMISSIBLE EVIDENCE IF VOLUNTARILY MADE; INADMISSIBLE
IF NOT THE PRODUCT OF HIS FREE WILL.  HARDLY ANY CONSTITUTIONAL AREA
HAS BEEN MORE CAREFULLY PATROLLED BY THIS COURT, AND UNTIL NOW THE
COURT HAS EXPRESSLY REJECTED THE ARGUMENT THAT ADMISSIONS ARE TO BE
DEEMED INVOLUNTARY IF MADE OUTSIDE THE PRESENCE OF COUNSEL.  CICENIA V.
LAGAY, SUPRA; CROOKER V. CALIFORNIA, SUPRA.* 

* TODAY'S RULE PICKS UP WHERE THE FIFTH AMENDMENT ENDS AND BARS
WHOLLY VOLUNTARY ADMISSIONS.  I WOULD ASSUME, ALTHOUGH ONE CANNOT BE
SURE, THAT THE NEW RULE WOULD NOT HAVE A SIMILAR SUPPLEMENTAL ROLE IN
CONNECTION WITH THE FOURTH AMENDMENT.  WHILE THE FIFTH AMENDMENT BARS
ONLY COMPELLED INCRIMINATION, THE FOURTH AMENDMENT BARS ONLY
UNREASONABLE SEARCHES.  IT COULD BE ARGUED, FRUITLESSLY I WOULD HOPE,
THAT IF THE POLICE MUST STAY AWAY FROM THE DEFENDANT THEY MUST ALSO
STAY AWAY FROM HIS HOUSE ONCE THE RIGHT TO COUNSEL HAS ATTACHED AND
THAT A COURT MUST EXCLUDE THE PRODUCTS OF A REASONABLE SEARCH MADE
PURSUANT TO A PROPERLY ISSUED WARRANT BUT WITHOUT THE CONSENT OR
PRESENCE OF THE ACCUSED'S COUNSEL. 

THE COURT PRESENTS NO FACTS, NO OBJECTIVE EVIDENCE, NO REASONS TO
WARRANT SCRAPPING THE VOLUNTARY-INVOLUNTARY TEST FOR ADMISSIBILITY IN
THIS AREA.  WITHOUT SUCH EVIDENCE I WOULD RETAIN IT IN ITS PRESENT
FORM. 

THIS CASE CANNOT BE ANALOGIZED TO THE AMERICAN BAR ASSOCIATION'S RULE
FORBIDDING AN ATTORNEY TO TALK TO THE OPPOSING PARTY LITIGANT OUTSIDE
THE PRESENCE OF HIS COUNSEL.  ASIDE FROM THE FACT THAT THE
ASSOCIATION'S CANONS ARE NOT OF CONSTITUTIONAL DIMENSIONS, THE SPECIFIC
CANON ARGUED IS INAPPOSITE BECAUSE IT DEALS WITH THE CONDUCT OF LAWYERS
AND NOT WITH THE CONDUCT OF INVESTIGATORS.  LAWYERS ARE FORBIDDEN TO
INTERVIEW THE OPPOSING PARTY BECAUSE OF THE SUPPOSED IMBALANCE OF LEGAL
SKILL AND ACUMEN BETWEEN THE LAWYER AND THE PARTY LITIGANT; THE REASON
FOR THE RULE DOES NOT APPLY TO NONLAWYERS AND CERTAINLY NOT TO COLSON,
MASSIAH'S CODEFENDANT. 

APPLYING THE NEW EXCLUSIONARY RULE IS PECULIARLY INAPPROPRIATE IN
THIS CASE.  AT THE TIME OF THE CONVERSATION IN QUESTION, PETITIONER WAS
NOT IN CUSTODY BUT FREE ON BAIL.  HE WAS NOT QUESTIONED IN WHAT ANYONE
COULD CALL AN ATMOSPHERE OF OFFICIAL COERCION.  WHAT HE SAID WAS SAID
TO HIS PARTNER IN CRIME WHO HAD ALSO BEEN INDICTED.  THERE WAS NO
SUGGESTION OR ANY POSSIBILITY OF COERCION.  WHAT PETITIONER DID NOT
KNOW WAS THAT COLSON HAD DECIDED TO REPORT THE CONVERSATION TO THE
POLICE.  HAD THERE BEEN NO PRIOR ARRANGEMENTS BETWEEN COLSON AND THE
POLICE, HAD COLSON SIMPLY GONE TO THE POLICE AFTER THE CONVERSATION HAD
OCCURRED, HIS TESTIMONY RELATING MASSIAH'S STATEMENTS WOULD BE READILY
ADMISSIBLE AT THE TRIAL, AS WOULD A RECORDING WHICH HE MIGHT HAVE MADE
OF THE CONVERSATION.  IN SUCH EVENT, IT WOULD SIMPLY BE SAID THAT
MASSIAH RISKED TALKING TO A FRIEND WHO DECIDED TO DISCLOSE WHAT HE KNEW
OF MASSIAH'S CRIMINAL ACTIVITIES.  BUT IF, AS OCCURRED HERE, COLSON HAD
BEEN COOPERATING WITH THE POLICE PRIOR TO HIS MEETING WITH MASSIAH,
BOTH HIS EVIDENCE AND THE RECORDED CONVERSATION ARE SOMEHOW TRANSFORMED
INTO INADMISSIBLE EVIDENCE DESPITE THE FACT THAT THE HAZARD TO MASSIAH
REMAINS PRECISELY THE SAME - THE DEFECTION OF A CONFEDERATE IN CRIME. 

REPORTING CRIMINAL BEHAVIOR IS EXPECTED OR EVEN DEMANDED OF THE
ORDINARY CITIZEN.  FRIENDS MAY BE SUBPOENAED TO TESTIFY ABOUT FRIENDS,
RELATIVES ABOUT RELATIVES AND PARTNERS ABOUT PARTNERS.  I THEREFORE
QUESTION THE SOUNDNESS OF INSULATING MASSIAH FROM THE APOSTASY OF HIS
PARTNER IN CRIME AND OF FURNISHING CONSTITUTIONAL SANCTIONS FOR THE
STRICT SECRECY AND DISCIPLINE OF CRIMINAL ORGANIZATIONS.  NEITHER THE
ORDINARY CITIZEN NOR THE CONFESSED CRIMINAL SHOULD BE DISCOURAGED FROM
REPORTING WHAT HE KNOWS TO THE AUTHORITIES AND FROM LENDING HIS AID TO
SECURE EVIDENCE OF CRIME.  CERTAINLY AFTER THIS CASE THE COLSONS WILL
BE FEW AND FAR BETWEEN; AND THE MASSIAHS CAN BREATHE MUCH MORE EASILY,
SECURE IN THE KNOWLEDGE THAT THE CONSTITUTION FURNISHES AN IMPORTANT
MEASURE OF PROTECTION AGAINST FAITHLESS COMPATRIOTS AND GUARANTEES
SPORTING TREATMENT FOR SPORTING PEDDLERS OF NARCOTICS. 

MEANWHILE, OF COURSE, THE PUBLIC WILL AGAIN BE THE LOSER AND LAW
ENFORCEMENT WILL BE PRESENTED WITH ANOTHER SERIOUS DILEMMA.  THE
GENERAL ISSUE LURKING IN THE BACKGROUND OF THE COURT'S OPINION IS THE
LEGITIMACY OF PENETRATING OR OBTAINING CONFEDERATES IN CRIMINAL
ORGANIZATIONS.  FOR THE LAW ENFORCEMENT AGENCY, THE ANSWER FOR THE TIME
BEING CAN ONLY BE IN THE FORM OF A PREDICTION ABOUT THE FUTURE
APPLICATION OF TODAY'S NEW CONSTITUTIONAL DOCTRINE.  MORE NARROWLY, AND
POSED BY THE PRECISE SITUATION INVOLVED HERE, THE QUESTION IS THIS:
WHEN THE POLICE HAVE ARRESTED AND RELEASED ON BAIL ONE MEMBER OF A
CRIMINAL RING AND ANOTHER MEMBER, A CONFEDERATE, IS COOPERATING WITH
THE POLICE, CAN THE CONFEDERATE BE ALLOWED TO CONTINUE HIS ASSOCIATION
WITH THE RING OR MUST HE SOMEHOW BE WITHDRAWN TO AVOID CHALLENGE TO
TRIAL EVIDENCE ON THE GROUND THAT IT WAS ACQUIRED AFTER RATHER THAN
BEFORE THE ARREST, AFTER RATHER THAN BEFORE THE INDICTMENT? 

DEFENDANTS WHO ARE OUT ON BAIL HAVE BEEN KNOWN TO CONTINUE THEIR
ILLICIT OPERATIONS.  SEE ROGERS V. UNITED STATES, 325 F.2D 485 (C.A.
10TH CIR.).  THAT AN ATTORNEY IS ADVISING THEM SHOULD NOT
CONSTITUTIONALLY IMMUNIZE THEIR STATEMENTS MADE IN FURTHERANCE OF THESE
OPERATIONS AND RELEVANT TO THE QUESTION OF THEIR GUILT AT THE PENDING
PROSECUTION.  IN THIS VERY CASE THERE IS EVIDENCE THAT AFTER INDICTMENT
DEFENDANT AIKEN TRIED TO PERSUADE AGENT MURPHY TO GO INTO THE NARCOTICS
BUSINESS WITH HIM.  UNDER TODAY'S DECISION, MURPHY MAY NEITHER TESTIFY
AS TO THE CONTENT OF THIS CONVERSATION NOR SEIZE FOR INTRODUCTION IN
EVIDENCE ANY NARCOTICS WHOSE LOCATION AIKEN MAY HAVE MADE KNOWN. 

UNDOUBTEDLY, THE EVIDENCE EXCLUDED IN THIS CASE WOULD NOT HAVE BEEN
AVAILABLE BUT FOR THE CONDUCT OF COLSON IN COOPERATION WITH AGENT
MURPHY, BUT IS IT THIS KIND OF CONDUCT WHICH SHOULD BE FORBIDDEN TO
THOSE CHARGED WITH LAW ENFORCEMENT?  IT IS ONE THING TO ESTABLISH
SAFEGUARDS AGAINST PROCEDURES FRAUGHT WITH THE POTENTIALITY OF COERCION
AND TO OUTLAW "EASY BUT SELF-DEFEATING WAYS IN WHICH BRUTALITY IS
SUBSTITUTED FOR BRAINS AS AN INSTRUMENT OF CRIME DETECTION."  MCNABB V.
UNITED STATES, 318 U.S. 332, 344.  BUT HERE THERE WAS NO SUBSTITUTION
OF BRUTALITY FOR BRAINS, NO INHERENT DANGER OF POLICE COERCION
JUSTIFYING THE PROPHYLACTIC EFFECT OF ANOTHER EXCLUSIONARY RULE. 
MASSIAH WAS NOT BEING INTERROGATED IN A POLICE STATION, WAS NOT
SURROUNDED BY NUMEROUS OFFICERS OR QUESTIONED IN RELAYS, AND WAS NOT
FORBIDDEN ACCESS TO OTHERS.  LAW ENFORCEMENT MAY HAVE THE ELEMENTS OF A
CONTEST ABOUT IT, BUT IT IS NOT A GAME.  MCGUIRE V. UNITED STATES, 273
U.S. 95, 99.  MASSIAH AND THOSE LIKE HIM RECEIVE AMPLE PROTECTION FROM
THE LONG LINE OF PRECEDENTS IN THIS COURT HOLDING THAT CONFESSIONS MAY
NOT BE INTRODUCED UNLESS THEY ARE VOLUNTARY.  IN MAKING THESE
DETERMINATIONS THE COURTS MUST CONSIDER THE ABSENCE OF COUNSEL AS ONE
OF SEVERAL FACTORS BY WHICH VOLUNTARINESS IS TO BE JUDGED.  SEE HOUSE
V. MAYO, 324 U.S. 42, 45-46; PAYNE V. ARKANSAS, 356 U.S. 560, 567;
CICENIA V. LAGAY, SUPRA, AT 509.  THIS IS A WISER RULE THAN THE
AUTOMATIC RULE ANNOUNCED BY THE COURT, WHICH REQUIRES COURTS AND JURIES
TO DISREGARD VOLUNTARY ADMISSIONS WHICH THEY MIGHT WELL FIND TO BE THE
BEST POSSIBLE EVIDENCE IN DISCHARGING THEIR RESPONSIBILITY FOR
ASCERTAINING TRUTH. 
..END :








MARKS V. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE 377 U.S. 214 


NO. 253.  ARGUED APRIL 2, 1964.  - DECIDED MAY 18, 1964.  - 315 F.2D
673, AFFIRMED BY AN EQUALLY DIVIDED COURT. 


MARKS V. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :













LUCKENBACH STEAMSHIP CO., V. FRANCHISE TAX BOARD OF CALIFORNIA 377 U.S.
215 


NO. 916.  DECIDED MAY 18, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  219 CAL. APP. 2D 710,
33 CAL. RPTR.  544. 


LUCKENBACH STEAMSHIP CO., INC., V. FRANCHISE TAX BOARD OF CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, THIRD
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














SINCLAIR V. BAKER 377 U.S. 215 


NO. 949.  DECIDED MAY 18, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  219 CAL. APP. 2D 817, 33 CAL. RPTR.  522. 


SINCLAIR V. BAKER ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















SWAN V. NATION CO. 377 U.S. 216 


NO. 771, MISC.  DECIDED MAY 18, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


SWAN V. NATION COMPANY. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HUNTER V. ILLINOIS 377 U.S. 216 


NO. 1087, MISC.  DECIDED MAY 18, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HUNTER V. ILLINOIS ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















HIGHWAY EXPRESS LINES, INC., V. JONES MOTOR CO., INC. 377 U.S. 217 


NO. 900.  DECIDED MAY 18, 1964.* - 218 F. SUPP. 133; 223 F. SUPP. 835,
AFFIRMED. 

*TOGETHER WITH NO. 977, PENNSYLVANIA PUBLIC UTILITY COMMISSION V.
JONES MOTOR CO., INC., ALSO ON APPEAL FROM THE SAME COURT. 


HIGHWAY EXPRESS LINES, INC., ET AL. V. JONES MOTOR CO., INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS, MR. JUSTICE HARLAN AND MR. JUSTICE GOLDBERG ARE
OF THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :











COLEMAN V. ALABAMA 377 U.S. 129 


NO. 583.  ARGUED MARCH 25, 1964.  - DECIDED MAY 4, 1964.  - 276 ALA.
513, 164 SO. 2D 704, REVERSED AND REMANDED. 


PETITIONER, A NEGRO CONVICTED OF MURDER, FILED A MOTION FOR A NEW
TRIAL ASSERTING FOR THE FIRST TIME DEPRIVATION OF HIS CONSTITUTIONAL
RIGHTS THROUGH SYSTEMATIC EXCLUSION OF NEGROES FROM THE GRAND AND PETIT
JURIES.  THE TRIAL JUDGE PERMITTED PETITIONER TO PROCEED ON HIS MOTION
BUT, RELYING UPON A STATE REQUIREMENT THAT OBJECTIONS TO THE
COMPOSITION OF A JURY BE MADE BEFORE TRIAL, SUSTAINED OBJECTIONS TO ALL
QUESTIONS CONCERNING THE ALLEGED JURY DISCRIMINATION AND DENIED THE
MOTION.  THE STATE SUPREME COURT AFFIRMED, FINDING NO SUFFICIENT PROOF
OF JURY DISCRIMINATION.  HELD: THE PRACTICE OF SYSTEMATIC EXCLUSION, IF
PROVED, WOULD ENTITLE PETITIONER TO A NEW TRIAL AND SINCE THE STATE
SUPREME COURT DECIDED HIS CONSTITUTIONAL CLAIM OF JURY DISCRIMINATION
ON THE MERITS, ALTHOUGH PETITIONER HAD NOT BEEN ALLOWED TO OFFER
EVIDENCE TO SUPPORT THAT CLAIM, PETITIONER MUST NOW BE GIVEN THAT
OPPORTUNITY. 

COLEMAN V. ALABAMA. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, A NEGRO CONVICTED AND SENTENCED TO DEATH FOR
MURDERING A WHITE MAN, ATTACKS HIS CONVICTION AS VIOLATIVE OF THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.   HE
CLAIMS THAT, AS A RESULT OF A LONG-ESTABLISHED PRACTICE IN THE COUNTY
OF HIS CONVICTION, NEGROES WERE ARBITRARILY AND SYSTEMATICALLY EXCLUDED
FROM SITTING ON THE GRAND JURY WHICH INDICTED HIM AND THE PETIT JURY
WHICH CONVICTED HIM.  THE STATE ANSWERS THAT THE CLAIM COMES TOO LATE,
HAVING BEEN ASSERTED FOR THE FIRST TIME BY A MOTION FOR A NEW TRIAL. 
CODE OF ALA. (1958 RECOMP.), TIT. 15, SECS 278, 279; BALL V. STATE, 252
ALA. 686, 689, 42 SO. 2D 626, 629.  ADMITTEDLY, THE POINT WAS NOT
RAISED UNTIL THE FILING OF THE MOTION FOR A NEW TRIAL, BUT THE TRIAL
JUDGE PERMITTED THE PETITIONER TO PROCEED ON HIS MOTION.  HOWEVER, THE
JUDGE SUSTAINED OBJECTIONS TO ALL QUESTIONS CONCERNING THE ALLEGED JURY
DISCRIMINATION AND DENIED MOTION.  THE SUPREME COURT OF ALABAMA
AFFIRMED THE CONVICTION, FINDING THAT PETITIONER'S CLAIM OF JURY
DISCRIMINATION WAS NOT SUPPORTED BY ANY EVIDENCE.  WE GRANTED
CERTIORARI, 375 U.S. 893. 

PETITIONER WAS CONVICTED OF THE FIRST DEGREE MURDER OF A WHITE
MECHANIC, THE APPARENT MOTIVE BEING ROBBERY.  THERE WERE NO WITNESSES
TO THE KILLING AND THE EVIDENCE OF GUILT WAS CIRCUMSTANTIAL, BASED
LARGELY UPON EXPERT TESTIMONY GIVEN BY THE STATE'S TOXICOLOGIST. 
PETITIONER WAS REPRESENTED BY COURT-APPOINTED COUNSEL AT TRIAL BUT HE
OBTAINED NEW COUNSEL AFTER CONVICTION.  IN HIS MOTION FOR A NEW TRIAL
PETITIONER ALLEGED THAT "NEGROES QUALIFIED FOR JURY SERVICE IN GREENE
COUNTY, ALABAMA ARE ARBITRARILY, SYSTEMATICALLY AND INTENTIONALLY
EXCLUDED FROM JURY DUTY IN VIOLATION OF RIGHTS AND PRIVILEGES
GUARANTEED DEFENDANT BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION." 

THE PETITIONER DOES NOT ATTACK THE REASONABLENESS OF ALABAMA'S
PROCEDURAL REQUIREMENT THAT OBJECTIONS TO THE COMPOSITION OF JURIES
MUST BE MADE BEFORE TRIAL.  NOR DOES HE QUESTION THE VALIDITY OF SUCH
PROCEDURES AS A STATE GROUND UPON WHICH REFUSAL TO CONSIDER THE
QUESTION MIGHT BE BASED.  HOWEVER, IN THIS CASE THE JUDGE GRANTED
PETITIONER A HEARING ON HIS MOTION FOR A NEW TRIAL AND PERMITTED HIM TO
CALL TWO CIRCUIT SOLICITORS AS WITNESSES TO PROVE HIS ALLEGATIONS OF
DISCRIMINATION.  NONETHELESS, THE JUDGE SUSTAINED OBJECTIONS TO ALL
QUESTIONS CONCERNING SYSTEMATIC DISCRIMINATION ON THE GROUND THAT THE
POINT WAS NOT RAISED PRIOR TO TRIAL.  (FN1)  ON AUTOMATIC APPEAL THE
SUPREME COURT OF ALABAMA FOUND THAT THE TRIAL JUDGE HAD AFFORDED
PETITIONER "AN OPPORTUNITY ON THE HEARING OF THE MOTION FOR A NEW TRIAL
TO ADDUCE EVIDENCE OF ANY SYSTEMATIC EXCLUSION  ...  ."  HOWEVER, IT
FOUND FURTHER THAT "NONE WAS INTRODUCED OTHER THAN AN AFFIDAVIT OF
APPELLANT'S MOTHER THAT HER SON WAS INDICTED BY A GRAND JURY COMPOSED
OF WHITE MEN, AND TRIED AND CONVICTED BY A PETIT JURY COMPOSED OF
TWELVE WHITE MEN." 

IT APPEARS CLEAR THAT THE MOTION FOR A NEW TRIAL ALLEGED A PRACTICE
OF SYSTEMATIC EXCLUSION WHICH, IF PROVED, WOULD ENTITLE PETITIONER TO A
NEW TRIAL.  ARNOLD V. NORTH CAROLINA, 376 U.S. 773 (1964); EUBANKS V.
LOUISIANA, 356 U.S. 584 (1958); REECE V. GEORGIA, 350 U.S. 85 (1955);
HERNANDEZ V. TEXAS, 347 U.S. 475 (1954); STRAUDER V. WEST VIRGINIA, 100
U.S. 303 (1879).  HERE PETITIONER'S COUNSEL FAILED TO RAISE THE ISSUE
BEFORE TRIAL; BUT THE ALABAMA SUPREME COURT, APPARENTLY ACTING UNDER
THE ENLIGHTENED PROCEDURE OF ITS AUTOMATIC APPEALS STATUTE,  (FN2)  DID
NOT BASE ITS AFFIRMANCE ON THIS GROUND BUT CONSIDERED THE CLAIM ON THE
MERITS AND HELD THAT THE PETITIONER HAD NOT MET HIS BURDEN OF
ESTABLISHING RACIAL DISCRIMINATION.  THE COURT CONCLUDED: 

"NO SUFFICIENT PROOF HAVING BEEN PRODUCED AT THE HEARING ON THE
MOTION FOR A NEW TRIAL, OR AT ANY OTHER STATE OF THE PROCEEDINGS, IT IS
CLEAR APPELLANT MAY NOT NOW COMPLAIN.  THEREFORE, WE ARE LEFT UNDER NO
DOUBT THAT APPELLANT'S POINT ON SYSTEMATIC EXCLUSION OF NEGROES FROM
THE JURY ROLLS IN GREENE COUNTY IS NOT WELL TAKEN." 

EXERCISING ITS DISCRETION TO PERMIT PETITIONER TO ATTACK THE
EXCLUSION BY MOTION FOR A NEW TRIAL, THE SUPREME COURT OF ALABAMA
DECIDED PETITIONER'S CONSTITUTIONAL CLAIM ON THE MERITS.  THE JUDGMENT,
THEREFORE, "RESTED UPON THE STATE SUPREME COURT'S CONSIDERED CONCLUSION
THAT THE CONVICTION RESULTING IN THE DEATH SENTENCE WAS NOT OBTAINED IN
DISREGARD OF THE PROTECTIONS SECURED TO THE PETITIONER BY THE
CONSTITUTION OF THE UNITED STATES."  IRVIN V. DOWD, 359 U.S. 394, 404
(1959).  SINCE THE CASE COMES HERE IN THAT POSTURE AND THE RECORD SHOWS
THAT PETITIONER WAS NOT PERMITTED TO OFFER EVIDENCE TO SUPPORT HIS
CLAIM, THE JUDGMENT OF AFFIRMANCE MUST FALL.  AS IN CARTER V. TEXAS,
177 U.S. 442 (1900), WHERE THE STATE COURT FOUND THAT "THE MOTION WAS
BUT A MERE TENDER OF THE ISSUE, UNACCOMPANIED BY ANY SUPPORTING
TESTIMONY ...  ," THIS COURT MUST REVERSE ON THE GROUND THAT THE
DEFENDANT "OFFERED TO INTRODUCE WITNESSES TO PROVE THE ALLEGATIONS  ...
AND THE COURT  ... DECLINED TO HEAR ANY EVIDENCE UPON THE SUBJECT  ...
."  AT 448-449. 

IN LIGHT OF THESE CONSIDERATIONS, THE PETITIONER IS NOW ENTITLED TO
HAVE HIS DAY IN COURT ON HIS ALLEGATIONS OF SYSTEMATIC EXCLUSION OF
NEGROES FROM THE GRAND AND PETIT JURIES SITTING IN HIS CASE.  THE
JUDGMENT IS THEREFORE REVERSED AND THE CASE REMANDED TO THE SUPREME
COURT OF ALABAMA FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  "ATTORNEY FOR DEFENDANT: I CAN ASK WHETHER OR NOT THE LAW WAS
COMPLIED WITH? 

"COURT:  YES.  THE FACT THAT THE LAW WAS COMPLIED WITH, THAT IS A
GENERAL QUESTION, BUT THE COURT WILL SUSTAIN AN OBJECTION TO THAT
BECAUSE THE COURTS HAVE HELD REPEATEDLY, THE SUPREME COURT OF ALABAMA
AND THE SUPREME COURT OF THE UNITED STATES, THAT YOU CAN NOT GO INTO
THOSE MATTERS UNLESS THEY HAVE BEEN RAISED PROPERLY DURING THE TRIAL OR
IN SOME PROCEEDINGS PRIOR THERETO.  THAT IS THE REASON I ASKED YOU THE
QUESTION BEFORE.  THE CASE WAS TRIED BY MR. BOGGS AND THE COURT IS
FAMILIAR WITH IT. 

"ATTORNEY FOR DEFENDANT: BUT I WOULD LIKE TO GET ONE OR TWO OF THESE
QUESTIONS IN THE RECORD FOR THE PURPOSE OF TAKING AN EXCEPTION TO IT. 

"COURT:  YOU MAY ASK THE QUESTIONS, BUT THE COURT WILL HAVE TO
SUSTAIN AN OBJECTION TO THEM. 

"Q.  MR. BOGGS, YOU WERE PRESENT WHEN THE GRAND JURY, WHICH INDICTED
JOHNNY COLEMAN, WAS CONVENED, WERE YOU NOT? 

"A.  I WAS. 

"Q.  HOW MANY PERSONS WERE ON THAT GRAND JURY? 

"A.  EIGHTEEN. 

"Q.  WERE ANY NEGROES ON THAT GRAND JURY? 

"SOLICITOR:  I OBJECT TO THAT, MAY IT PLEASE THE COURT.  IT IS AN
ILLEGAL MODE OF RAISING THAT WHICH SHOULD HAVE BEEN RAISED BY MOTION TO
QUASH THE INDICTMENT. 

"COURT:  SUSTAIN THE OBJECTION. 

"ATTORNEY FOR DEFENDANT:  I WANT TO ASK ONE MORE QUESTION, AND THEN I
WON'T HAVE ANY FURTHER QUESTION TO ASK - TWO MORE, YOUR HONOR. 

"Q.  WERE THERE ANY NEGROES ON THE PETIT JURY THAT TRIED THIS
DEFENDANT? 

"SOLICITOR:  I OBJECT TO THAT, MAY IT PLEASE THE COURT, ON THE GROUND
THAT IT SHOULD HAVE BEEN PROPERLY RAISED BY MOTION TO QUASH THE VENIRE
IF THE FOURTEENTH AMENDMENT WAS TO BE TAKEN ADVANTAGE OF IN THIS
MATTER. 

"COURT:  SUSTAIN THE OBJECTION." 

FN2  CODE OF ALABAMA (1958 RECOMP.), TIT. 15, SEC 382(10): 

"HEARING AND DETERMINATION IN APPELLATE COURT.  - IN ALL CASES OF
AUTOMATIC APPEALS THE APPELLATE COURT MAY CONSIDER, AT ITS DISCRETION,
ANY TESTIMONY THAT WAS SERIOUSLY PREJUDICIAL TO THE RIGHTS OF THE
APPELLANT, AND MAY REVERSE THEREON EVEN THOUGH NO LAWFUL OBJECTION OR
EXCEPTION WAS MADE THERETO.  THE APPELLATE COURT SHALL CONSIDER ALL OF
THE TESTIMONY AND IF UPON SUCH CONSIDERATION IS OF OPINION THE VERDICT
IS SO DECIDEDLY CONTRARY TO THE GREAT WEIGHT OF THE EVIDENCE AS TO BE
WRONG AND UNJUST AND THAT UPON THAT GROUND A NEW TRIAL SHOULD BE HAD,
THE COURT SHALL ENTER AN ORDER OF REVERSAL OF THE JUDGMENT AND GRANT A
NEW TRIAL, THOUGH NO MOTION TO THAT EFFECT WAS PRESENTED IN THE COURT
BELOW." 
..END :






MISSOURI PACIFIC RAILROAD CO. V. ELMORE & STAHL 377 U.S. 134 


NO. 292.  ARGUED MARCH 3, 1964.  - DECIDED MAY 4, 1964.  - 368 S.W.2D
99, AFFIRMED. 


SEEKING RECOVERY FOR DAMAGE TO AN INTERSTATE SHIPMENT OF MELONS,
RESPONDENT SHIPPER BROUGHT THIS ACTION IN A STATE COURT AGAINST THE
CARRIER.  THE JURY MADE SPECIAL FINDINGS THAT THE MELONS WERE IN GOOD
CONDITION WHEN TURNED OVER TO THE CARRIER, BUT IN DAMAGED CONDITION
WHEN THEY REACHED THEIR DESTINATION; AND THAT THE CARRIER PERFORMED ALL
TRANSPORTATION SERVICES WITHOUT NEGLIGENCE.  BUT THE JURY REFUSED TO
FIND THAT THE CARRIER HAD SUSTAINED THE BURDEN OF PROVING THAT THE
DAMAGE WAS DUE SOLELY TO THE "INHERENT VICE" OF THE MELONS.  ON THESE
FINDINGS THE TRIAL COURT AWARDED DAMAGES TO RESPONDENT.  THE STATE
SUPREME COURT AFFIRMED ON THE GROUND THAT, UNDER FEDERAL LAW, A CARRIER
IS NOT RELIEVED OF LIABILITY BY SHOWING THAT TRANSPORTATION SERVICES
WERE NOT NEGLIGENTLY PERFORMED, BUT MUST ALSO ESTABLISH THAT DAMAGE WAS
CAUSED BY ONE OF THE EXCEPTED COMMON-LAW PERILS, HERE THE NATURAL
DETERIORATION OF THE MELONS.  HELD:  UNDER SEC 20(11) OF THE INTERSTATE
COMMERCE ACT, WHICH CODIFIES THE COMMON-LAW RULE THAT A CARRIER, WHILE
NOT AN ABSOLUTE INSURER, IS LIABLE FOR DAMAGES UNLESS CAUSED BY AN ACT
OF GOD, A PUBLIC ENEMY, THE SHIPPER, PUBLIC AUTHORITY, OR THE INHERENT
VICE OR NATURE OF THE GOODS, THE SHIPPER MAKES OUT A PRIMA FACIE CASE
WHEN HE SHOWS DELIVERY IN GOOD CONDITION, ARRIVAL DAMAGED, AND THE
QUANTUM OF DAMAGES.  THE CARRIER THEN HAS THE BURDEN OF PROVING LACK OF
NEGLIGENCE AND THAT DAMAGE WAS DUE TO ONE OF THE EXCEPTIONS RELIEVING
IT OF LIABILITY. 

(A)  THE RULE OF LIABILITY IS THE SAME FOR NONPERISHABLE AND
PERISHABLE COMMODITIES (OTHER THAN LIVESTOCK).  PP. 139-140. 

(B)  RULES 130 AND 135 OF THE PERISHABLE PROTECTIVE TARIFF MERELY
RESTATE THE COMMON-LAW RULES OF LIABILITY.  PP. 140-143. 

(C)  THE RULE OF LIABILITY OF THE CARRIER IS BASED UPON ITS KNOWLEDGE
CONCERNING THE CONDITION OF THE SHIPMENT WHILE IN ITS POSSESSION.  PP.
143-144. 

MISSOURI PACIFIC RAILROAD CO. V. ELMORE & STAHL. 

CERTIORARI TO THE SUPREME COURT OF TEXAS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER A COMMON CARRIER WHICH
HAS EXERCISED REASONABLE CARE AND HAS COMPLIED WITH THE INSTRUCTIONS OF
THE SHIPPER, IS NONETHELESS LIABLE TO THE SHIPPER FOR SPOILAGE IN
TRANSIT OF AN INTERSTATE SHIPMENT OF PERISHABLE COMMODITIES, WHEN THE
CARRIER FAILS TO PROVE THAT THE CAUSE OF THE SPOILAGE WAS THE NATURAL
TENDENCY OF THE COMMODITIES TO DETERIORATE.  THE PETITIONER IS A COMMON
CARRIER AND THE RESPONDENT IS A FRUIT SHIPPER.  THE RESPONDENT SUED THE
PETITIONER IN A TEXAS COURT TO RECOVER FOR DAMAGE TO A CARLOAD OF
HONEYDEW MELONS SHIPPED FROM RIO GRANDE CITY, TEXAS, TO CHICAGO,
ILLINOIS.  (FN1) 

IN ACCORDANCE WITH TEXAS PRACTICE, SPECIAL ISSUES WERE SUBMITTED TO
THE JURY AT THE CLOSE OF THE EVIDENCE.  THE JURY AFFIRMATIVELY FOUND
THAT THE MELONS WERE IN GOOD CONDITION AT THE TIME THEY WERE TURNED
OVER TO THE CARRIER IN RIO GRANDE CITY, BUT THAT THEY ARRIVED IN
DAMAGED CONDITION AT THEIR DESTINATION IN CHICAGO.  THE JURY ALSO
AFFIRMATIVELY FOUND THAT THE PETITIONER AND ITS CONNECTING CARRIERS
PERFORMED ALL REQUIRED TRANSPORTATION SERVICES WITHOUT NEGLIGENCE.  THE
JURY WERE INSTRUCTED THAT "INHERENT VICE" MEANS "ANY EXISTING DEFECTS,
DISEASES, DECAY OR THE INHERENT NATURE OF THE COMMODITY WHICH WILL
CAUSE IT TO DETERIORATE WITH A LAPSE OF TIME."  THEY ANSWERED "NO" TO A
SPECIAL ISSUE ASKING WHETHER THEY FOUND FROM A PREPONDERANCE OF THE
EVIDENCE THAT THE CONDITION OF THE MELONS ON ARRIVAL IN CHICAGO WAS DUE
SOLELY TO AN INHERENT VICE, AS SO DEFINED, "AT THE TIME THE MELONS WERE
RECEIVED BY THE CARRIER AT RIO GRANDE CITY, TEXAS, FOR
TRANSPORTATION."  (FN2) 

ON THE BASIS OF THESE SPECIAL FINDINGS, THE TRIAL JUDGE ENTERED
JUDGMENT FOR DAMAGES AGAINST THE CARRIER.  THE JUDGMENT WAS AFFIRMED BY
THE TEXAS COURT OF CIVIL APPEALS, 360 S.W.2D 839, AND BY THE TEXAS
SUPREME COURT, UPON THE GROUND THAT, AS A MATTER OF FEDERAL LAW, "THE
CARRIER MAY NOT EXONERATE ITSELF BY SHOWING THAT ALL TRANSPORTATION
SERVICES WERE PERFORMED WITHOUT NEGLIGENCE BUT MUST GO FURTHER AND
ESTABLISH THAT THE LOSS OR DAMAGE WAS CAUSED BY ONE OF THE FOUR
EXCEPTED PERILS RECOGNIZED AT COMMON LAW."  368 S.W.2D 99, 100.  THE
COURT CONCLUDED, IN VIEW OF THE JURY'S FINDINGS, THAT, ALTHOUGH "A
COMMON CARRIER IS NOT RESPONSIBLE FOR SPOILAGE OR DECAY WHICH IS SHOWN
TO BE DUE ENTIRELY TO THE INHERENT NATURE OF THE GOODS, ...  PETITIONER
HAS NOT ESTABLISHED THAT THE DAMAGE IN THIS CASE WAS CAUSED SOLELY BY
NATURAL DETERIORATION."  ID., AT 103.  WE GRANTED CERTIORARI, 375 U.S.
811, BECAUSE OF A CONFLICT WITH AN ALMOST CONTEMPORANEOUS DECISION OF
THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HOLDING THAT
"IN THE CASE OF PERISHABLE GOODS THE BURDEN UPON THE CARRIER IS NOT TO
PROVE THAT THE DAMAGE RESULTED FROM THE INHERENT VICE OF THE GOODS, BUT
TO PROVE ITS OWN COMPLIANCE WITH THE RULES OF THE TARIFF AND THE
SHIPPER'S INSTRUCTIONS."   (FN3)  FOR THE REASONS WHICH FOLLOW, WE
AFFIRM THE JUDGMENT BEFORE US. 

THE PARTIES AGREE THAT THE LIABILITY OF A CARRIER FOR DAMAGE TO AN
INTERSTATE SHIPMENT IS A MATTER OF FEDERAL LAW CONTROLLED BY FEDERAL
STATUTES AND DECISIONS.  THE CARMACK AMENDMENT OF 1906,  (FN4) SEC
20(11) OF THE INTERSTATE COMMERCE ACT, MAKES CARRIERS LIABLE "FOR THE
FULL ACTUAL LOSS, DAMAGE, OR INJURY  ... CAUSED BY" THEM TO PROPERTY
THEY TRANSPORT, AND DECLARES UNLAWFUL AND VOID ANY CONTRACT,
REGULATION, TARIFF, OR OTHER ATTEMPTED MEANS OF LIMITING THIS
LIABILITY.  (FN5)  IT IS SETTLED THAT THIS STATUTE HAS TWO UNDISPUTED
EFFECTS CRUCIAL TO THE ISSUE IN THIS CASE:  FIRST, THE STATUTE CODIFIES
THE COMMON-LAW RULE THAT A CARRIER, THOUGH NOT AN ABSOLUTE INSURER, IS
LIABLE FOR DAMAGE TO GOODS TRANSPORTED BY IT UNLESS IT CAN SHOW THAT
THE DAMAGE WAS CAUSED BY "(A) THE ACT OF GOD; (B) THE PUBLIC ENEMY; (C)
THE ACT OF THE SHIPPER HIMSELF; (D) PUBLIC AUTHORITY; (E) OR THE
INHERENT VICE OR NATURE OF THE GOODS."  BILLS OF LADING, 52 I.C.C. 671,
679; CHESAPEAKE & O.R. CO. V. THOMPSON MFG. CO., 270 U.S. 416, 421-423;
ADAMS EXPRESS CO. V. CRONINGER, 226 U.S. 491, 509; HALL LONG V.
RAILROAD COMPANIES, 13 WALL.  367, 372.  SECOND, THE STATUTE DECLARES
UNLAWFUL AND VOID ANY "RULE, REGULATION, OR OTHER LIMITATION OF ANY
CHARACTER WHATSOEVER" PURPORTING TO LIMIT THIS LIABILITY.  (FN6)  SEE
CINCINNATI & TEXAS PAC. R. CO. V. RANKIN, 241 U.S. 319, 326; BOSTON &
M.R. CO. V. PIPER, 246 U.S. 439, 445.  ACCORDINGLY, UNDER FEDERAL LAW,
IN AN ACTION TO RECOVER FROM A CARRIER FOR DAMAGE TO A SHIPMENT, THE
SHIPPER ESTABLISHES HIS PRIMA FACIE CASE WHEN HE SHOWS DELIVERY IN GOOD
CONDITION, ARRIVAL IN DAMAGED CONDITION, AND THE AMOUNT OF DAMAGES. 
THEREUPON, THE BURDEN OF PROOF IS UPON THE CARRIER TO SHOW BOTH THAT IT
WAS FREE FROM NEGLIGENCE AND THAT THE DAMAGE TO THE CARGO WAS DUE TO
ONE OF THE EXCEPTED CAUSES RELIEVING THE CARRIER OF LIABILITY. 
GALVESTON, H. & S.A.R. CO. V. WALLACE, 223 U.S. 481, 492; CHICAGO &
E.I.R. CO. V. COLLINS CO., 249 U.S. 186, 191; CHESAPEAKE & O.R. CO. V.
THOMPSON MFG. CO., 270 U.S. 416, 420-423; THOMPSON V. JAMES MCCARRICK
CO., 205 F.2D 897, 900. 

THE DISPOSITION OF THIS CASE IN THE TEXAS COURTS WAS IN ACCORDANCE
WITH THESE ESTABLISHED PRINCIPLES.  IT IS APPARENT THAT THE JURY WERE
UNABLE TO DETERMINE THE CAUSE OF THE DAMAGE TO THE MELONS.  "THE DECAY
OF A PERISHABLE CARGO IS NOT A CAUSE; IT IS AN EFFECT.  IT MAY BE THE
RESULT OF A NUMBER OF CAUSES, FOR SOME OF WHICH, SUCH AS THE INHERENT
DEFECTS OF THE CARGO  ...  THE CARRIER IS NOT LIABLE."  (FN7)  BUT THE
JURY REFUSED TO FIND THAT THE CARRIER HAD BORNE ITS BURDEN OF
ESTABLISHING THAT THE DAMAGED CONDITION OF THE MELONS WAS DUE SOLELY TO
"INHERENT VICE," AS DEFINED IN THE INSTRUCTION OF THE TRIAL JUDGE -
INCLUDING "THE INHERENT NATURE OF THE COMMODITY WHICH WILL CAUSE IT TO
DETERIORATE WITH A LAPSE OF TIME."  THE PETITIONER DOES NOT CHALLENGE
THE ACCURACY OF THE TRIAL JUDGE'S INSTRUCTION OR THE JURY'S FINDING. 
(FN8)  ITS POSITION IS SIMPLY THAT IF GOODS ARE PERISHABLE, AND THE
NATURE OF THE DAMAGE IS SPOILAGE, AND THE JURY AFFIRMATIVELY FIND THAT
THE CARRIER WAS FREE FROM NEGLIGENCE AND PERFORMED THE TRANSPORTATION
SERVICES AS REQUIRED BY THE SHIPPER, THEN THE LAW PRESUMES THAT THE
CAUSE OF THE SPOILAGE WAS THE NATURAL TENDENCY OF PERISHABLES TO
DETERIORATE EVEN THOUGH THE DAMAGE MIGHT, IN FACT, HAVE RESULTED FROM
OTHER CAUSES, SUCH AS THE ACTS OF THIRD PARTIES,  (FN9)  FOR WHICH NO
EXCEPTION FROM CARRIER LIABILITY IS PROVIDED.  CONSEQUENTLY, IT IS
ARGUED, THE QUESTION OF "INHERENT VICE" SHOULD NOT HAVE BEEN SUBMITTED
TO THE JURY, SINCE THE CARRIER IN SUCH A CASE DOES NOT BEAR THE
AFFIRMATIVE BURDEN OF ESTABLISHING THAT THE DAMAGE WAS CAUSED BY THE
INHERENT VICE EXCEPTION OF THE COMMON LAW. 

THE PETITIONER APPEARS TO RECOGNIZE THAT, EXCEPT IN THE CASE OF LOSS
ARISING FROM INJURY TO LIVESTOCK IN TRANSIT - A WELL-ESTABLISHED
EXCEPTION TO THE GENERAL COMMON-LAW RULE BASED ON THE PECULIAR
PROPENSITY OF ANIMALS TO INJURE THEMSELVES AND EACH OTHER  (FN10)  - NO
DISTINCTION WAS MADE IN THE EARLIER FEDERAL CASES BETWEEN PERISHABLES
AND NONPERISHABLES.  IT IS SAID, HOWEVER, THAT THE "LARGE-SCALE
DEVELOPMENT, IN RELATIVELY RECENT YEARS, OF LONG DISTANCE
TRANSPORTATION OF FRESH FRUIT AND VEGETABLES IN INTERSTATE COMMERCE HAS
LED TO THE EVOLUTION" OF A NEW FEDERAL RULE GOVERNING THE CARRIER'S
LIABILITY FOR SPOILAGE AND DECAY OF PERISHABLES, SIMILAR TO THE
"LIVESTOCK RULE," WHICH ABSOLVES THE CARRIER FROM LIABILITY UPON PROOF
THAT THE CARRIER HAS EXERCISED REASONABLE CARE, AND HAS COMPLIED WITH
THE SHIPPER'S INSTRUCTIONS.  (FN11) 

WE ARE AWARE OF NO SUCH NEW RULE OF FEDERAL LAW.  AS RECENTLY AS
1956, IN SECRETARY OF AGRICULTURE V. UNITED STATES, 350 U.S. 162, THIS
COURT GAVE NO INTIMATION THAT THE GENERAL RULE PLACING ON THE CARRIER
THE AFFIRMATIVE BURDEN OF BRINGING THE CAUSE OF THE DAMAGE WITHIN ONE
OF THE SPECIFIED EXCEPTIONS NO LONGER APPLIED TO CASES INVOLVING
PERISHABLE COMMODITIES.  (FN12) 

NOR DO RULES 130 AND 135 OF THE PERISHABLE PROTECTIVE TARIFF, RELIED
UPON BY PETITIONER, REFLECT ANY SUCH CHANGE IN THE FEDERAL LAW, WHEN
READ IN THE LIGHT OF THE HISTORY UNDERLYING THEIR ADOPTION IN 1920 BY
THE INTERSTATE COMMERCE COMMISSION.  RULE 130, DECLARING THAT A CARRIER
DOES NOT "UNDERTAKE TO OVERCOME THE INHERENT TENDENCY OF PERISHABLE
GOODS TO DETERIORATE OR DECAY,"  (FN13) MERELY RESTATES THE COMMON-LAW
RULE THAT A CARRIER SHALL NOT BE HELD LIABLE IN THE ABSENCE OF
NEGLIGENCE FOR DAMAGE RESULTING SOLELY FROM AN INHERENT VICE OR DEFECT
IN THE GOODS.  AND RULE 135, DECLARING THAT THE CARRIER SHALL NOT BE
"LIABLE FOR ANY LOSS OR DAMAGE THAT MAY OCCUR BECAUSE OF THE ACTS OF
THE SHIPPER OR BECAUSE THE DIRECTIONS OF THE SHIPPER WERE INCOMPLETE,
INADEQUATE OR ILL-CONCEIVED,"  (FN14)  MERELY REITERATES THE COMMON-LAW
AND BILL-OF-LADING RULE THAT THE CARRIER SHALL NOT BE LIABLE, IN THE
ABSENCE OF NEGLIGENCE, FOR THE "ACT OR DEFAULT OF THE SHIPPER OR
OWNER."   NEITHER OF THESE RULES REFERS TO THE PRESUMPTIONS OR BURDENS
OF PROOF IMPOSED BY THE COMMON LAW, AND IT IS CLEAR THAT IT WAS NOT THE
INTENTION OF THE COMMISSION IN APPROVING THESE RULES TO MODIFY OR
REDUCE THE COMMON-LAW LIABILITY OF A CARRIER.  INDEED, THE COMMISSION
STATED AT THE TIME THESE RULES WERE ADOPTED IN 1920 THAT "SUCH
DECLARATIONS CAN HAVE NO CONTROLLING EFFECT, FOR THE CARRIER'S
LIABILITY FOR LOSS OR DAMAGE IS DETERMINED BY THE LAW.  NOTHING CAN BE
ADDED TO OR SUBTRACTED FROM THE LAW BY LIMITATIONS OR DEFINITIONS
STATED IN TARIFFS  ...  .  THERE IS THE CONSTANT RISK, THEREFORE, IF
SUCH DECLARATIONS ARE INCLUDED, OF MISSTATING THE LAW AND MISLEADING
THE PARTIES TO NO GOOD PURPOSE."  PERISHABLE FREIGHT INVESTIGATION, 56
I.C.C. 449, 482.  ALTHOUGH THE COMMISSION CONCLUDED FOR THIS REASON
THAT THIS TYPE OF RULE WAS GENERALLY OBJECTIONABLE, ID., AT 483, IT
RECOGNIZED THE DESIRABILITY OF GIVING "SOME WARNING TO SHIPPERS" THAT A
CARRIER WAS NOT LIABLE FOR THE INHERENT TENDENCY OF PERISHABLE GOODS TO
DETERIORATE OR DECAY, OR FOR THE SHIPPER'S FAILURE TO GIVE PROPER
TRANSPORTATION INSTRUCTIONS.  IBID.  THE RULES THEMSELVES REFLECT
NOTHING MORE THAN THIS OBJECTIVE.  (FN15) 

THAT THIS WAS THE LIMITED PURPOSE OF RULES 130 AND 135 IS CONFIRMED
BY THE COMMISSION'S ACTION IN REJECTING AN ADDITIONAL PROPOSAL MADE BY
THE CARRIERS AT THE TIME THESE RULES WERE APPROVED IN 1920.   THE
CARRIERS SOUGHT TO INCLUDE A PROVISION TO BE KNOWN AS ITEM 20(D),
READING: 

"NOTHING IN THIS TARIFF SHALL BE CONSTRUED AS RELIEVING CARRIERS FROM
SUCH LIABILITY AS MAY REST UPON THEM FOR LOSS OR DAMAGE WHEN SAME IS
THE RESULT OF CARRIERS' NEGLIGENCE."  SEE 56 I.C.C., AT 481. 

THE COMMISSION EMPHATICALLY REJECTED THE PROVISION ON THE EXPRESS
GROUND THAT: 

"A CARRIER MAY BE LIABLE UNDER THE COMMON LAW FOR LOSS OR DAMAGE
WHICH IS NOT THE RESULT OF ITS NEGLIGENCE, AND THIS ITEM IMPLIES THAT
THERE MAY BE SOMETHING IN THE TARIFF WHICH SEEKS TO LIMIT SUCH
LIABILITY."  ID., AT 483. 

FINALLY, ALL ELSE FAILING, IT IS ARGUED THAT AS A MATTER OF PUBLIC
POLICY, THE BURDEN OUGHT NOT TO BE PLACED UPON THE CARRIER TO EXPLAIN
THE CAUSE OF SPOILAGE, BECAUSE WHERE PERISHABLES ARE INVOLVED, THE
SHIPPER IS PECULIARLY KNOWLEDGEABLE ABOUT THE COMMODITY'S CONDITION AT
AND PRIOR TO THE TIME OF SHIPMENT, AND IS THEREFORE IN THE BEST
POSITION TO EXPLAIN THE CAUSE OF THE DAMAGE.  SINCE THIS ARGUMENT
AMOUNTS TO A SUGGESTION THAT WE NOW CARVE OUT AN EXCEPTION TO AN
UNQUESTIONED RULE OF LONG STANDING UPON WHICH BOTH SHIPPERS AND
CARRIERS RELY, AND WHICH IS REFLECTED IN THE FREIGHT RATES SET BY THE
CARRIER, THE PETITIONER MUST SUSTAIN A HEAVY BURDEN OF PERSUASION.  THE
GENERAL RULE OF CARRIER LIABILITY IS BASED UPON THE SOUND PREMISE THAT
THE CARRIER HAS PECULIARLY WITHIN ITS KNOWLEDGE "ALL THE FACTS AND
CIRCUMSTANCES UPON WHICH IT MAY RELY TO RELIEVE IT OF ITS DUTY  ...  .
IN CONSEQUENCE, THE LAW CASTS UPON IT THE BURDEN OF THE LOSS WHICH IT
CANNOT EXPLAIN OR, EXPLAINING, BRING WITHIN THE EXCEPTIONAL CASE IN
WHICH IT IS RELIEVED FROM LIABILITY."  SCHNELL V. THE VALLESCURA, 293
U.S. 296, 304.  WE ARE NOT PERSUADED THAT THE CARRIER LACKS ADEQUATE
MEANS TO INFORM ITSELF OF THE CONDITION OF GOODS AT THE TIME IT
RECEIVES THEM FROM THE SHIPPER, AND IT CANNOT BE DOUBTED THAT WHILE THE
CARRIER HAS POSSESSION, IT IS THE ONLY ONE IN A POSITION TO ACQUIRE THE
KNOWLEDGE OF WHAT ACTUALLY DAMAGED A SHIPMENT ENTRUSTED TO ITS CARE. 
AFFIRMED. 

FN1  THE COMPLAINT CONTAINED FOUR INDEPENDENT COUNTS, EACH STATING A
SEPARATE CLAIM FOR DAMAGE TO A DIFFERENT SHIPMENT OF PERISHABLES.  THE
SHIPMENT INVOLVED HERE IS SOLELY THAT COVERED BY COUNT 1, WHICH RELATED
TO THE SHIPMENT OF 640 CRATES OF HONEYDEW MELONS IN CAR ART 35042 FROM
RIO GRANDE CITY TO CHICAGO. 

FN2  THE JURY ALSO REFUSED TO FIND THAT THE DAMAGE WAS CAUSED BY ACTS
OR OMISSIONS OF THE SHIPPER IN THE SHIPPING INSTRUCTIONS: 

"DO YOU FIND FROM A PREPONDERANCE OF THE EVIDENCE THAT THE WORSENED
CONDITION  ...  WAS CAUSED SOLELY BY CARRYING OUT THE INSTRUCTIONS FOR
HANDLING THIS SHIPMENT GIVEN BY THE SHIPPER TO THE CARRIER, ALTHOUGH
THESE INSTRUCTIONS, TOGETHER WITH THE OBLIGATIONS OF THE DEFENDANT
UNDER THE BILL OF LADING AND IN THE PERFORMANCE OF ALL OTHER MATTERS
NOT COVERED BY THE BILL OF LADING AND THE INSTRUCTIONS WERE CARRIED OUT
IN A REASONABLY PRUDENT MANNER, IF YOU HAVE SO FOUND?    "ANSWER 'YES'
OR 'NO.' 

"WE, THE JURY, ANSWER: NO." 

FN3  LARRY'S SANDWICHES, INC., V. PACIFIC ELECTRIC R. CO., 318 F.2D
690, 692-693.  CF.  TRAUTMANN BROS. CO. V. MISSOURI PAC. R. CO., 312
F.2D 102; UNITED STATES V. READING CO., 289 F.2D 7; ATLANTIC COAST LINE
R. CO. V. GEORGIA PACKING CO., 164 F. D 1.   FN4  34 STAT. 595. 

FN5  SEE 24 STAT. 386, AS AMENDED; 49 U.S.C. SEC 20(11). 

FN6  THE MEANING OF SEC 20(11) WAS REAFFIRMED BY THE CUMMINS
AMENDMENT OF 1915.  38 STAT.  1196.  CLEARLY RECOGNIZING THAT THE
PHRASE "CAUSED BY" DID NOT LIMIT THE CARRIER'S LIABILITY TO CASES OF
NEGLIGENCE, BUT COVERED LIABILITY WITHOUT FAULT EXCEPT WHERE THE
SPECIFIC COMMON-LAW EXCEPTIONS COULD BE ESTABLISHED, THE CUMMINS
AMENDMENT PERMITTED THE CARRIER TO REQUIRE THE SHIPPER TO FILE A TIMELY
NOTICE OF HIS CLAIM PRIOR TO FILING A LAWSUIT IN CASES WHERE THE
CARRIER WAS WITHOUT FAULT BUT FORBADE SUCH A CONDITION WHERE THE LOSS
RESULTED FROM THE CARRIER'S NEGLIGENCE.  SEE CHESAPEAKE & O.R. CO. V.
THOMPSON MFG. CO., 270 U.S. 416, 422.  THE PROVISO FORBIDDING THE
NOTICE REQUIREMENT IN CASES OF NEGLIGENCE WAS REPEALED IN 1930 (46
STAT. 251). 

FN7  SCHNELL V. THE VALLESCURA, 293 U.S. 296, 305-306. 

FN8  THE PETITIONER DOES APPEAR TO ARGUE, HOWEVER, THAT THE RULE
APPLIED BY THE TEXAS COURTS REQUIRED IT TO SHOW SOME SPECIFIC PECULIAR
DEFECT IN THIS PARTICULAR SHIPMENT OF PERISHABLES.  WE FIND NO
INTIMATION OF SUCH A REQUIREMENT EITHER IN THE TRIAL COURT'S
INSTRUCTIONS OR IN THE TEXAS SUPREME COURT'S OPINION.  THE TEXAS COURTS
MERELY PLACED UPON THE PETITIONER THE AFFIRMATIVE BURDEN OF SATISFYING
THE JURY THAT THE CAUSE OF THE SPOILAGE WAS THE NATURAL TENDENCY OF
PERISHABLES TO DETERIORATE OVER TIME. 

FN9  "THE CARRIER IS RESPONSIBLE WITHOUT REGARD TO THE EXERCISE OF
DUE CARE, EVEN THOUGH THE DAMAGE OR LOSS BE OCCASIONED BY THE
INDEPENDENT ACT OF THIRD PERSONS."  COMMODITY CREDIT CORP. V. NORTON,
167 F.2D 161, 164-165. 

FN10  SEE, E.G., NORTH PENNSYLVANIA R. CO. V. COMMERCIAL BANK, 123
U.S. 727, 734. 

FN11  WITH RESPECT TO WHOLLY INTRASTATE SHIPMENTS, THIS IS THE RULE
IN A NUMBER OF STATES.  SEE, E.G., SOUTHERN PACIFIC CO. V. ITULE, 51
ARIZ. 25, 74 P.2D 38. 

FN12 THE COURT NOTED THAT IT WAS "CONCEDED" THAT SEC 20(11) OF THE
INTERSTATE COMMERCE ACT CODIFIED "THE COMMON-LAW RULE MAKING A CARRIER
LIABLE, WITHOUT PROOF OF NEGLIGENCE, FOR ALL DAMAGE TO THE GOODS
TRANSPORTED BY IT, UNLESS IT AFFIRMATIVELY SHOWS THAT THE DAMAGE WAS
OCCASIONED BY THE SHIPPER, ACTS OF GOD, THE PUBLIC ENEMY, PUBLIC
AUTHORITY, OR THE INHERENT VICE OR NATURE OF THE COMMODITY."  350 U.S.,
AT 165-166 N. 9. 

FN13  "RULE 130 - CONDITION OF PERISHABLE GOODS NOT GUARANTEED BY
CARRIERS. 

"CARRIERS FURNISHING PROTECTIVE SERVICE AS PROVIDED HEREIN DO NOT
UNDERTAKE TO OVERCOME THE INHERENT TENDENCY OF PERISHABLE GOODS TO
DETERIORATE OR DECAY, BUT MERELY TO RETARD SUCH DETERIORATION OR DECAY
INSOFAR AS MAY BE ACCOMPLISHED BY REASONABLE PROTECTIVE SERVICE, OF THE
KIND AND EXTENT REQUESTED BY THE SHIPPER, PERFORMED WITHOUT
NEGLIGENCE."  GENERAL RULES AND REGULATIONS OF THE INTERSTATE COMMERCE
COMMISSION, PERISHABLE PROTECTIVE TARIFF NO. 17, I.C.C. NO. 34, W.T.
JAMISON, AGENT. 

FN14  "RULE 135 - LIABILITY OF CARRIERS. 

"PROPERTY ACCEPTED FOR SHIPMENT UNDER THE TERMS AND CONDITIONS OF
THIS TARIFF WILL BE RECEIVED AND TRANSPORTED SUBJECT TO SUCH
DIRECTIONS, ONLY, AND TO SUCH ELECTION BY THE SHIPPER RESPECTING THE
CHARACTER AND INCIDENTS OF THE PROTECTIVE SERVICE AS ARE PROVIDED FOR
HEREIN.  THE DUTY OF THE CARRIER IS TO FURNISH WITHOUT NEGLIGENCE
REASONABLE PROTECTIVE SERVICE OF THE KIND AND EXTENT SO DIRECTED OR
ELECTED BY THE SHIPPER AND CARRIERS ARE NOT LIABLE FOR ANY LOSS OR
DAMAGE THAT MAY OCCUR BECAUSE OF THE ACTS OF THE SHIPPER OR BECAUSE THE
DIRECTIONS OF THE SHIPPER WERE INCOMPLETE, INADEQUATE OR ILL
CONCEIVED."  IBID. 

FN15  THE SUGGESTION IS MADE THAT BECAUSE THE SHIPPER ELECTED TO SHIP
UNDER THE TERMS AND CONDITIONS OF THE UNIFORM DOMESTIC STRAIGHT BILL OF
LADING, THE CARRIER'S LIABILITY IS LIMITED TO NEGLIGENCE.  BUT INSOFAR
AS DAMAGE TO MERCHANDISE IN TRANSIT IS CONCERNED, THE BILL PROVIDES FOR
FULL "COMMON-LAW LIABILITY."  SECTION 1(A) OF THE BILL PROVIDES THAT
"THE CARRIER OR PARTY IN POSSESSION OF ANY OF THE PROPERTY HEREIN
DESCRIBED SHALL BE LIABLE AS AT COMMON LAW FOR ANY LOSS THEREOF OR
DAMAGE THERETO, EXCEPT AS HEREINAFTER PROVIDED."  SECTION 1(B)
PROVIDES, IN PERTINENT PART, THAT A CARRIER SHALL NOT BE LIABLE FOR
DAMAGE "RESULTING FROM A DEFECT OR VICE IN THE PROPERTY."  NOTHING IN
THE LANGUAGE OF THIS CONTRACT EVEN REMOTELY SUGGESTS THAT THE CARRIER
DOES NOT BEAR THE AFFIRMATIVE BURDEN OF PROVING THAT THE DAMAGE WAS
CAUSED BY A DEFECT OR VICE IN THE PROPERTY.  INDEED, WE THINK IT
SIGNIFICANT THAT THE IDENTICAL BILL OF LADING IS USED FOR THE SHIPMENT
OF BOTH PERISHABLE AND NONPERISHABLE COMMODITIES, WHILE A QUITE
DIFFERENT CONTRACT, THE UNIFORM LIVE STOCK CONTRACT, IS EMPLOYED IN THE
SHIPMENT OF LIVESTOCK.  SEE UNIFORM FREIGHT CLASSIFICATION NO. 4, P.
204. 

LIMITATIONS ON LIABILITY CONTAINED IN OTHER SECTIONS OF THE BILL OF
LADING APPLY TO CIRCUMSTANCES NOT COVERED BY THE CARMACK AMENDMENT.  IT
COULD NOT LAWFULLY BE OTHERWISE, FOR THE AMENDMENT CODIFIED THE COMMON
LAW LIABILITY FOR DAMAGE TO GOODS IN TRANSIT, AND ITS LEGAL EFFECT WAS
"TO BAR THE INTERSTATE COMMERCE COMMISSION FROM LEGALIZING TARIFFS
LIMITING THE COMMON-LAW LIABILITY OF A CARRIER FOR SUCH DAMAGE.  THE
COMMON LAW, IN IMPOSING LIABILITY, DISPENSED WITH PROOF BY A SHIPPER OF
A CARRIER'S NEGLIGENCE IN CAUSING THE DAMAGE."  SECRETARY OF
AGRICULTURE V. UNITED STATES, 350 U.S. 162, 173 (FRANKFURTER, J.,
CONCURRING). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE SHIPPING CONTRACT IN THIS CASE LIMITED THE LIABILITY OF THE
CARRIER FOR DAMAGES IN THE NATURE OF SPOILAGE OR DECAY TO LIABILITY FOR
NEGLIGENCE ONLY.  THE SHIPPING CONTRACT CONSISTS OF THE BILL OF LADING
AND THE APPLICABLE TARIFFS LAWFULLY PUBLISHED AND FILED (SOUTHERN R.
CO. V. PRESCOTT, 240 U.S. 632, 637), FROM WHICH THERE MAY BE NO
DEPARTURE.  ID., AT 638.  THE BILL OF LADING PROVIDES THAT THE GOODS
ARE RECEIVED, "SUBJECT TO THE CLASSIFICATIONS AND TARIFFS IN EFFECT"
AND THAT EVERY SERVICE TO BE PERFORMED THEREUNDER "SHALL BE SUBJECT TO
ALL THE CONDITIONS NOT PROHIBITED BY LAW ...  INCLUDING THE CONDITION
ON BACK HEREOF  ...  ."  ITS FORM AND TERMS ARE PART OF UNIFORM FREIGHT
CLASSIFICATION NO. 4, ONE OF THE TARIFFS LAWFULLY FILED AND PUBLISHED
PURSUANT TO SEC 1(6) OF THE ACT.  CLASSIFICATION NO. 4 PROVIDES FOR
VARIOUS RATES FOR VARIOUS TYPES OF SERVICE AND LIMITS LIABILITY
ACCORDING TO THE RATE PAID, SUCH LIMITATIONS BEING HELD LAWFUL BY THE
INTERSTATE COMMERCE COMMISSION.  BILLS OF LADING, 52 I.C.C. 671, 684 ET
SEQ.; DOMESTIC BILL OF LADING, 64 I.C.C. 357, 360-361. 

UNDER CLASSIFICATION NO. 4 THE SHIPPER HAS THE OPTION OF SHIPPING HIS
GOODS EITHER UNDER THE UNIFORM BILL OF LADING, WITH A "LIMITED
LIABILITY," OR UNDER "A COMMON CARRIER'S LIABILITY."  IF HE CHOOSES THE
LATTER HE PAYS A RATE 10% HIGHER.  HERE THE SHIPPER CHOSE "LIMITED
LIABILITY."  ONE TYPE OF LIMITATION IS A TARIFF THAT LIMITS THE AMOUNT
OF DAMAGES FOR THE LOSS OF A SHIPMENT.  SEE, E.G., PIERCE CO. V. WELLS,
FARGO CO., 236 U.S. 278.  THERE THE AMOUNT OF RECOVERY FOR NEGLIGENCE
IS ALLOWED TO BE LIMITED WHERE THE FILED TARIFFS SO PROVIDE, THE
SHIPPER HAVING THE PRIVILEGE OF PAYING AN INCREASED RATE AND OBTAINING
LIABILITY FOR THE FULL VALUE.  ID., AT 283.  HERE THERE IS NO QUESTION
OF A CARRIER'S BEING EXEMPT FROM ANY LIABILITY CAUSED BY NEGLIGENCE. 
RATHER IT TURNS ON RULE 130 AND RULE 135 OF THE PERISHABLE PROTECTIVE
TARIFF NO. 17, THE TARIFF BROUGHT INTO PLAY BY THE BILL OF LADING. 

RULE 130 STATES:  "CARRIERS FURNISHING PROTECTIVE SERVICE AS PROVIDED
HEREIN DO NOT UNDERTAKE TO OVERCOME THE INHERENT TENDENCY OF PERISHABLE
GOODS TO DETERIORATE OR DECAY, BUT MERELY TO RETARD SUCH DETERIORATION
OR DECAY INSOFAR AS MAY BE ACCOMPLISHED BY REASONABLE PROTECTIVE
SERVICE, OF THE KIND AND EXTENT REQUESTED BY THE SHIPPER, PERFORMED
WITHOUT NEGLIGENCE." 

RULE 135 STATES:  "PROPERTY ACCEPTED FOR SHIPMENT UNDER THE TERMS AND
CONDITIONS OF THIS TARIFF WILL BE RECEIVED AND TRANSPORTED SUBJECT TO
SUCH DIRECTIONS, ONLY, AND TO SUCH ELECTION BY THE SHIPPER RESPECTING
THE CHARACTER AND INCIDENTS OF THE PROTECTIVE SERVICE AS ARE PROVIDED
FOR HEREIN.   THE DUTY OF THE CARRIER IS TO FURNISH WITHOUT NEGLIGENCE
REASONABLE PROTECTIVE SERVICE OF THE KIND AND EXTENT SO DIRECTED OR
ELECTED BY THE SHIPPER AND CARRIERS ARE NOT LIABLE FOR ANY LOSS OR
DAMAGE THAT MAY OCCUR BECAUSE OF THE ACTS OF THE SHIPPER OR BECAUSE THE
DIRECTIONS OF THE SHIPPER WERE INCOMPLETE, INADEQUATE OR ILL
CONCEIVED." 

THESE PROVISIONS WERE APPROVED BY THE COMMISSION (SEE PERISHABLE
FREIGHT INVESTIGATION, 56 I.C.C. 449, 483), THE DECLARATIONS BEING
"PREDICATED UPON THE SPECIAL HAZARD RESULTING FROM THE PERISHABLE
NATURE OF THE FREIGHT, OR FROM THE EXERCISE BY THE SHIPPER OF SOME
MEASURE OF CONTROL OVER THE FORM OR DEGREE OF PROTECTIVE SERVICE
ACCORDED."  ID., AT 481. 

RULES 130 AND 135 ARE NOT IN DEROGATION OF COMMON-LAW LIABILITY
WHICH, AS WE SAID IN SECRETARY OF AGRICULTURE V. UNITED STATES, 350
U.S. 162, 165, NOTE 9, WAS CODIFIED IN SEC 20(11) OF THE ACT.  THAT
LIABILITY EXEMPTS THE CARRIER ONLY FOR DAMAGE CAUSED BY THE SHIPPER,
ACTS OF GOD, THE PUBLIC ENEMY, PUBLIC AUTHORITY, OR "THE INHERENT VICE
OR NATURE OF THE COMMODITY."  RULES 130 AND 135 MERELY OPERATE WITHIN
THE AMBIT OF THE LAST CATEGORY, SUPPLYING APPROPRIATE STANDARDS FOR ITS
APPLICATION. 

SUCH A TARIFF HAS THE FORCE AND EFFECT OF A FEDERAL STATUTE.  SEE
SOUTHWESTERN SUGAR & MOLASSES CO. V. RIVER TERMINALS CORP., 360 U.S.
411.  "UNTIL CHANGED, TARIFFS BIND BOTH CARRIERS AND SHIPPERS WITH THE
FORCE OF LAW."  LOWDEN V. SIMONDS-SHIELDS-LONSDALE GRAIN CO., 306 U.S.
516, 520; CRANCER V. LOWDEN, 315 U.S. 631, 635. 

IT IS UNDER UNIFORM FREIGHT CLASSIFICATION NO. 4, THE BILL OF LADING,
AND THE RULES OF THE PERISHABLE PROTECTIVE TARIFF THAT WE MUST DECIDE
THIS CASE. 

THE JURY FOUND THAT PETITIONER "PERFORMED WITHOUT NEGLIGENCE THE
TRANSPORTATION SERVICES AS PROVIDED BY THE TERMS AND CONDITIONS OF THE
BILL OF LADING AND AS INSTRUCTED BY THE PLAINTIFF AND IN A REASONABLY
PRUDENT MANNER AS TO MATTERS NOT COVERED BY THE BILL OF LADING OR THE
PLAINTIFF'S INSTRUCTIONS."  THE JURY, HOWEVER, REFUSED TO FIND THAT THE
DAMAGE WAS CAUSED BY "THE INHERENT NATURE OF THE COMMODITY WHICH WILL
CAUSE IT TO DETERIORATE WITH A LAPSE OF TIME."  JUDGMENT WAS ENTERED
FOR THE SHIPPER AND THIS COURT NOW AFFIRMS THE JUDGMENT OF THE TEXAS
SUPREME COURT. 

I WOULD REVERSE.  IN MY OPINION THE COURT SHOULD HOLD THAT A CARRIER
OF PERISHABLES OVERCOMES THE SHIPPER'S PRIMA FACIE CASE WHEN HE
DEMONSTRATES, AS HERE,  (FN1)  THAT THE NATURE OF THE DAMAGE IS
SPOILAGE AND DECAY AND THAT HE PERFORMED THE PROTECTIVE SERVICES
ORDERED AND PAID FOR BY THE SHIPPER AND ALL OTHER DUTIES IN A
REASONABLY PRUDENT MANNER.  ANY OTHER RULE NULLIFIES THE PROVISIONS OF
THE TARIFF WHICH PERMIT THE SHIPPER TO SELECT FROM NUMEROUS PROTECTIVE
SERVICES AND PAY THE CORRESPONDING CHARGE, AND WHICH PROVIDE THAT "THE
DUTY OF THE CARRIER IS TO FURNISH WITHOUT NEGLIGENCE REASONABLE
PROTECTIVE SERVICE OF THE KIND AND EXTENT SO DIRECTED OR ELECTED BY THE
SHIPPER  ...  ." 

THE PROTECTIVE SERVICE ORDERED BY RESPONDENT WHEN THE MELONS WERE
DELIVERED TO PETITIONER FOR SHIPMENT WAS "STANDARD REFRIGERATION TO
DESTINATION."  AN EXPERT WITNESS EXPLAINED THAT "'STANDARD
REFRIGERATION TO DESTINATION'  ...  MEANS THAT THE CAR WILL BE REICED
TO CAPACITY AT ALL REGULAR ICING STATIONS."  (FN2)  GENERALLY, THE
SERVICES AVAILABLE FOR FRESH FRUITS, VEGETABLES, BERRIES OR MELONS
INCLUDE REFRIGERATION WITH SALT; STANDARD REFRIGERATION; INITIAL ICING
ONLY; INITIAL ICING WITH LIMITED NUMBER OF RE-ICINGS; HALF-STAGE
REFRIGERATION; TOP OR BODY ICING; COOLING IN CAR; FUMIGATION;
VENTILATION; AND PROTECTION AGAINST COLD (HEATER SERVICE).  THE
"CHARGES PUBLISHED HEREIN FOR PROTECTIVE SERVICE," SAYS THE TARIFF,
"WILL BE IN ADDITION TO AND INDEPENDENT OF ALL FREIGHT RATES  ...  ." 
A SHIPPER, IN OTHER WORDS, BY PAYING ONE CHARGE GETS ONE SERVICE AND BY
PAYING A LESSER CHARGE GETS A LESSER SERVICE. 

IN THE INSTANT CASE, THE MELONS WERE INSPECTED AT DESTINATION BY THE
UNITED STATES DEPARTMENT OF AGRICULTURE. 

THE REPORT SAID: 

"CONDITION: GENERALLY HARD TO FIRM; WHITE TO CREAM COLOR.  IN MOST
SAMPLES 1 TO 4 MELONS PER CRATE, SOME NONE, AVERAGE APPROXIMATELY 15%
DAMAGED BY LIGHT TO DARK BROWN DISCOLORATION, SOME OF WHICH IS SUNKEN,
OCCURRING OVER 1/8 TO 1/2 OF SURFACE.  IN MOST SAMPLES NONE, SOME 1 OR
2 MELONS PER CRATE, AVERAGE APPROXIMATELY 3% DECAY, BACTERIAL SOFT ROT,
GENERALLY IN ADVANCED STAGES. 

"GRADE: NOW FAILS TO GRADE U.S. NO. 1 ONLY ACCOUNT DISCOLORATION AND
DECAY." 

THE DEFECTS IN THE MELONS WERE DESCRIBED BY AN INSPECTOR FOR THE
RAILROAD PERISHABLE INSPECTION AGENCY, AN ORGANIZATION FORMED BY AN
ASSOCIATION OF CARRIERS:  (FN3) 

"WELL, LIGHT BROWN DISCOLORATION IS ACTUALLY A SURFACE BLEMISH OF THE
MELON.  IT'S QUITE COMMON TO FIND THAT CONDITION AT DESTINATION
MARKETS, AND WE BELIEVE IT'S ASSOCIATED WITH IMMATURITY.  THAT IS, IF A
MELON IS HARVESTED A LITTLE BIT IMMATURE DURING THE GRADING AND PACKING
OPERATION, IT WILL GET VERY SLIGHT ABRASIONS, AND THEN THE SURFACE WILL
DARKEN.           *         *         *         *         * 

"BACTERIAL SOFT ROT IS A DECAY OF - IT'S COMMON DECAY FOUND IN MANY
FRUITS AND VEGETABLES.  IT'S CAUSED BY AN ORGANISM, BACTERIAL ORGANISM,
AND IT'S OF FIELD ORIGIN.  THE BACTERIA ARE COMMONLY FOUND ON PLANT
DEBRIS AND THAT SORT OF THING, AND IT DEVELOPS WHEN THE CONDITIONS OF
TEMPERATURE AND MOISTURE ARE RIPE FOR THE DEVELOPMENT, BACTERIA-WISE. 
YOU FIND IT VERY COMMONLY AT DESTINATION ON A GREAT MANY FRUITS AND
VEGETABLES. 

     *  *         *         *         * 

"WELL, THE TEMPERATURES WE HAVE HERE WOULD BE FAVORABLE TO RETARD
THAT DECAY, BECAUSE THE LOWER THE TEMPERATURE YOU HAVE, THE MORE YOU
ARE GOING TO RETARD THE DEVELOPMENT OF SOFT ROT. 

     *         * *         *         * 

"IT'S MY OPINION THAT THE DECAY ORIGINATED AT SHIPPING POINT, EITHER
DURING THE HARVESTING OR THE PACKING OPERATION, AND THAT THE DECAY
DEVELOPED SO THAT IT WAS NOTICEABLE AT DESTINATION." 

THE INHERENT WEAKNESS OF PERISHABLE PRODUCTS AND THE OWNER'S SUPERIOR
FAMILIARITY WITH THEM ARE REFLECTED IN RULES 130 AND 135 OF THE
PERISHABLE PROTECTIVE TARIFF, WHICH, AS I HAVE SAID, RELATE THE CHARGE
TO THE PROTECTIVE SERVICE DESIRED BY THE SHIPPER.  THE NECESSARY
PROTECTIVE SERVICE VARIES GREATLY FOR CONDITIONS SUCH AS THOSE
ENUMERATED IN PERISHABLE FREIGHT INVESTIGATION, SUPRA, AT 468: 

CHARACTER OF THE COMMODITY; VARIETY OF THE SAME COMMODITY; LOCAL
CLIMATE; SEASON WHEN SHIPPED; WEATHER VARIATIONS FROM YEAR TO YEAR AND
FROM DAY TO DAY; LENGTH OF HAUL; CONDITION OF THE COMMODITY; USE TO
WHICH IT IS TO BE PUT; PACKAGE IN WHICH IT IS SHIPPED; SCHEDULE OF
FREIGHT-TRAIN OPERATION; PRE-COOLING OF SHIPMENTS; METHOD OF LOADING;
WEIGHT LOADED; CHARACTER OF CAR FURNISHED. 

AND SEE PROVIDENCE FRUIT & PRODUCE EXCHANGE V. NEW YORK CENTRAL &
HUDSON R. CO., 33 I.C.C.  294, 295, 296. 

RESPONDENT COULD HAVE SELECTED ANY ONE OF A WIDE VARIETY OF
PROTECTIVE SERVICES, PAYING A HIGHER OR LOWER CHARGE AS THE CASE MAY
BE.  IT WAS TESTIFIED THAT RESPONDENT, FOR EXAMPLE, COULD HAVE ORDERED
A SPECIFIED PERCENTAGE OF SALT TO BE ADDED TO THE ICINGS SO AS TO SPEED
UP THE REFRIGERATION PROCESS.  INSTEAD, FOR WHATEVER REASON, RESPONDENT
ORDERED THE CHEAPER SERVICE. 

NOTWITHSTANDING THIS, THE COURT IGNORES THE OBVIOUS DIFFERENCE
BETWEEN PERISHABLES AND NONPERISHABLES AND FORMULATES A RULE CONTRARY
TO A VALID TARIFF AND THE WEIGHT OF AUTHORITY.  (FN4) 

AS THE COURT OF APPEALS FOR THE NINTH CIRCUIT SAID, SPEAKING THROUGH
JUDGE MERRILL: "  ...  IN THE CASE OF PERISHABLE GOODS THE BURDEN UPON
THE CARRIER IS NOT TO PROVE THAT THE DAMAGE RESULTED FROM THE INHERENT
VICE OF THE GOODS, BUT TO PROVE ITS OWN COMPLIANCE WITH THE RULES OF
THE TARIFF AND THE SHIPPER'S INSTRUCTIONS."  LARRY'S SANDWICHES, INC.,
V. PACIFIC ELECTRIC R. CO., 318 F.2D 690, 692-693. 

IN MY OPINION, THE COURT SHOULD RECOGNIZE UNIFORM FREIGHT
CLASSIFICATION NO. 4 AND THE RULES OF THE PERISHABLE PROTECTIVE TARIFF
AS HAVING THE FORCE OF A STATUTE, LIMITED LIABILITY TO THE SERVICE
ASKED, PAID FOR, AND RENDERED.  WHAT WE DO TODAY ALLOWS A SHIPPER,
UNDER THE GUISE OF BUYING TRANSPORTATION SERVICE, TO SELL A CAR OF
PRODUCE TO THE RAILROAD. 

FN1  RESPONDENT HAS NOT SERIOUSLY CONTENDED THAT SUCH THINGS AS
"BACTERIAL SOFT ROT, GENERALLY IN ADVANCED STAGES" AND "DISCOLORATION"
ARE OTHER THAN CONDITIONS OF DETERIORATION, SPOILAGE AND DECAY.   THE
PRINCIPAL DISPUTE AT THE TRIAL CENTERED AROUND WHETHER OR NOT THE
SHIPPER HAD IN FACT PERFORMED THE REQUESTED SERVICES IN A REASONABLY
PRUDENT MANNER, WITH RESPONDENT, MORE SPECIFICALLY, ATTEMPTING TO
INDICATE THAT PERHAPS THE REFRIGERATION EQUIPMENT WAS NOT FUNCTIONING
PROPERLY. 

FN2  THE SAME EXPERT WITNESS DISCUSSED THE VARIOUS KINDS OF
PROTECTIVE SERVICE AVAILABLE: 

"Q.  ...  WHO DICTATES OR ORDERS OR DETERMINES WHAT TYPE OF SERVICE
SHALL BE FURNISHED ON A REFRIGERATOR CAR ON A PARTICULAR SHIPMENT? 

"A.  ...  THE SHIPPER. 

"Q.  ...  AND ARE THERE VARIOUS KINDS OF SERVICES THAT HE CAN SELECT
THAT HE CAN DIRECT THE RAILROAD TO FURNISH? 

"A.  YES.  THE PERISHABLE TARIFF HAS - I WOULDN'T KNOW JUST HOW MANY,
BUT PERHAPS A HUNDRED DIFFERENT CLASSES OF SERVICE, STARTING WITH
VENTILATION, WHICH IS NO ICE AT ALL.  HE MAY SHIP WITH ONE ICING ONLY,
INITIAL ICING, RULE 240.  HE MAY START WITH TWO ICINGS, THREE AND
FOUR.  WITH STANDARD ICING - WHICH IS ICING AT ALL REGULAR ICING
STATIONS - HE, IN ADDITION TO THAT, CAN SPECIFY SALT, IF HE WANTS TO,
CERTAIN PERCENTAGE OF SALT, WHICH IS SUPPOSED TO STEP UP THE MELTAGE
AND REFRIGERATION.  THERE ARE A HUNDRED CLASSES OF SERVICE FROM WHICH
THE SHIPPER DICTAGES WHAT HE THINKS, IN HIS OPINION, WILL BEST PROTECT
HIS SHIPMENT." 

DETAILS ON THE NUMEROUS PROTECTIVE SERVICES AVAILABLE ARE CONTAINED
IN PERISHABLE PROTECTIVE TARIFF 18, LOCAL, JOINT AND PROPORTIONAL
CHARGES AND RULES AND REGULATIONS GOVERNING THE HANDLING OF PERISHABLE
FREIGHT, NATIONAL PERISHABLE FREIGHT COMMITTEE, I.C.C. 37 (1960). 

FN3  THE ONLY CONTRADICTORY TESTIMONY CAME FROM RESPONDENT'S OFFICE
MANAGER WHO, AFTER STATING ON CROSS-EXAMINATION THAT HE WOULD NOT
ATTEMPT ANY OPINIONS ABOUT "DECAY AND SUNKEN AREAS AND DISCOLORATION OR
THINGS LIKE THAT," SAID ON REDIRECT EXAMINATION: 

"Q.  HAVE YOU DEVELOPED IN YOUR EXPERIENCE IN THIS BUSINESS OVER
SEVENTEEN YEARS A GENERAL KNOWLEDGE OF WHAT CAUSES THE DECAY IN SOME
INSTANCES? 

"A.  YES.  IMPROPER REFRIGERATION, I WOULD SAY." 

FN4  SEE MIRSKI V. CHESAPEAKE & OHIO R. CO., 44 ILL. APP. 2D 48, 194
N.E.2D 361; TRAUTMANN BROS. CO. V. MISSOURI PAC. R. CO., 312 F.2D 102
(C.A. 5TH CIR.); AND LARRY'S SANDWICHES, INC., V. PACIFIC ELEC.  R.
CO., 318 F.2D 690 (C.A. 9TH CIR.).
..END :





















MERCER V. THERIOT 377 U.S. 152 


NO. 336.  ARGUED APRIL 22, 1964.  - DECIDED MAY 4, 1964.  - 316 F.2D
635, REVERSED AND REMANDED. 


THE COURT OF APPEALS, FOR INSUFFICIENCY OF EVIDENCE AND PREJUDICIAL
ERRORS, REVERSED A JUDGMENT FOR PETITIONER IN A WRONGFUL DEATH ACTION
BROUGHT IN A FEDERAL DISTRICT COURT, WHERE JURISDICTION WAS BASED ON
DIVERSITY OF CITIZENSHIP AND AMOUNT IN CONTROVERSY, AND REMANDED THE
CASE TO THE DISTRICT COURT WITH INSTRUCTIONS FOR ENTRY OF JUDGMENT FOR
RESPONDENT, OR FOR A NEW TRIAL IF PETITIONER COULD SHOW THAT ON ANOTHER
TRIAL THERE WOULD BE SUFFICIENTLY PROBATIVE EVIDENCE TO WARRANT
SUBMISSION OF THE CASE TO THE JURY.  THE DISTRICT COURT ON REMAND
DENIED PETITIONER'S MOTION FOR A NEW TRIAL, HOLDING THAT THE ADDITIONAL
EVIDENCE WOULD BE INADMISSIBLE UNDER THE HEARSAY RULE; AND THE COURT OF
APPEALS AFFIRMED.  HELD: 

1.  THIS COURT UPON REVIEW OF THE SECOND JUDGMENT MAY CONSIDER ALL
THE SUBSTANTIAL FEDERAL QUESTIONS DETERMINED IN THE EARLIER STAGES OF
THE LITIGATION.  P. 153. 

2.  THE EVIDENCE WAS SUFFICIENT UNDER ANY APPROPRIATE STANDARD, STATE
OR FEDERAL, TO SUPPORT THE JURY'S VERDICT AND NO ERRORS AFFECTING
SUBSTANTIAL JUSTICE OCCURRED AT THE TRIAL.  PP. 154-156. 

MERCER V. THERIOT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

PETITIONER BROUGHT A WRONGFUL DEATH ACTION AGAINST RESPONDENT IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA. 
JURISDICTION WAS BASED ON DIVERSITY OF CITIZENSHIP AND AMOUNT IN
CONTROVERSY.  THE JURY RETURNED A VERDICT FOR PETITIONER IN THE AMOUNT
OF $25,000, AND THE TRIAL COURT DENIED RESPONDENT'S MOTIONS FOR A NEW
TRIAL AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT. 

ON APPEAL, A PANEL OF THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT REVERSED THE JUDGMENT.  THE COURT HELD THAT THE EVIDENCE
WAS INSUFFICIENT TO SUSTAIN THE VERDICT OF THE JURY AND REMANDED THE
CASE TO THE DISTRICT COURT "WITH DIRECTIONS TO ENTER A JUDGMENT FOR THE
DEFENDANT UNLESS PLAINTIFF  ...  MAKES A SATISFACTORY SHOWING THAT ON
ANOTHER TRIAL EVIDENCE OF SUFFICIENT PROBATIVE FORCE TO JUSTIFY
SUBMISSION OF THE CAUSE TO THE JURY WILL BE OFFERED, IN WHICH EVENT THE
JUDGMENT SHALL BE FOR A NEW TRIAL."  262 F.2D 754, 761.  THE COURT ALSO
HELD THAT THERE WERE PREJUDICIAL ERRORS IN THE CONDUCT OF THE TRIAL
WHICH WOULD HAVE REQUIRED A NEW TRIAL EVEN IF THERE HAD BEEN SUFFICIENT
EVIDENCE.  262 F.2D, AT 758-759.  AT THAT STAGE IN THE LITIGATION, THIS
COURT DENIED A PETITION FOR A WRIT OF CERTIORARI.  359 U.S. 983. 

PETITIONER THEN SUBMITTED TO THE DISTRICT COURT ADDITIONAL EVIDENCE
IN SUPPORT OF A MOTION FOR A NEW TRIAL.  THE DISTRICT JUDGE, REGARDING
HIMSELF BOUND BY THE RULING OF THE COURT OF APPEALS THAT THE EVIDENCE
ADDUCED AT TRIAL WAS INSUFFICIENT, DENIED THE MOTION ON THE GROUND THAT
THE ADDITIONAL "EVIDENCE, WHILE PERSUASIVE, WOULD BE INADMISSIBLE IN A
NEW TRIAL UNDER THE HEARSAY RULE."  THE COURT OF APPEALS SITTING EN
BANC, OVER THE DISSENT OF FOUR JUDGES, AFFIRMED THE DENIAL OF A NEW
TRIAL.  316 F.2D 635.  PETITIONER THEN SOUGHT, AND WE GRANTED A WRIT OF
CERTIORARI.  375 U.S. 920. 

WE NOW "CONSIDER ALL OF THE SUBSTANTIAL FEDERAL QUESTIONS DETERMINED
IN THE EARLIER STAGES OF THE LITIGATION  ...  ," REECE V. GEORGIA, 350
U.S. 85, 87, FOR IT IS SETTLED THAT WE MAY CONSIDER QUESTIONS RAISED ON
THE FIRST APPEAL, AS WELL AS "THOSE THAT WERE BEFORE THE COURT OF
APPEALS UPON THE SECOND APPEAL."  HAMILTON-BROWN SHOE CO. V. WOLF BROS.
& CO., 240 U.S. 251, 257.  CF. URIE V. THOMPSON, 337 U.S. 163, 171-173;
MESSENGER V. ANDERSON, 225 U.S. 436, 444. 

WE CONSIDER FIRST THE ALLEGED ERRORS IN THE CONDUCT OF THE TRIAL. 
THE COURT OF APPEALS DEEMED THE TRIAL COURT'S INSTRUCTION REGARDING
CIRCUMSTANTIAL EVIDENCE TO BE "HIGHLY PREJUDICIAL ERROR" BECAUSE IT
INCLUDED A STATEMENT THAT "THE TESTIMONY OF ALL OF THE WITNESSES FOR
THE PLAINTIFF HAS MADE OUT WHAT WE CALL IN LAW A CIRCUMSTANTIAL CASE
...  ."  262 F.2D, AT 758.  BUT AS SOON AS THIS WAS CALLED TO THE
COURT'S ATTENTION, THE FOLLOWING INSTRUCTION WAS GIVEN: 

"WHAT I MEANT TO SAY WAS THAT THE WITNESSES FOR THE PLAINTIFF  ...
HAVE SOUGHT TO MAKE OUT  ... THROUGH THEIR EVIDENCE A CIRCUMSTANTIAL
CASE.  THE QUESTION AS TO WHETHER OR NOT THE CASE OF THE PLAINTIFF HAS
BEEN PROVED IS FOR THE JURY TO DETERMINE." 

THERE WAS NO OBJECTION TO THIS RE-INSTRUCTION.  WE CONCLUDE THAT IT
PROPERLY STATED THE LAW AND THAT IT WOULD HAVE REMEDIED ANY ERRONEOUS
IMPRESSION THE JURY MAY HAVE RECEIVED FROM THE FIRST INSTRUCTION.  THE
COURT OF APPEALS ALSO HELD THAT THE TRIAL JUDGE COMMITTED A "GRIEVOUS"
ERROR BY PERMITTING THE INTRODUCTION OF CERTAIN HEARSAY EVIDENCE.  ID.,
AT 757.  COUNSEL FOR THE RESPONDENT DID NOT OBJECT TO THIS EVIDENCE BUT
IN FACT ELICITED THE SAME EVIDENCE IN HIS EXAMINATION OF THE WITNESS. 
ON THIS RECORD, THE ADMISSION OF THE EVIDENCE CANNOT BE DEEMED A
DEPRIVATION OF "SUBSTANTIAL JUSTICE."  RULE 61, FED. RULES CIV. PROC.
FINALLY, THE COURT OF APPEALS HELD THAT THE INFLAMMATORY NATURE OF THE
OPENING STATEMENT OF PETITIONER'S COUNSEL REQUIRED A NEW TRIAL. 
COUNSEL TOLD THE JURY THAT HE WOULD ESTABLISH THAT RESPONDENT "WAS A
HIT-AND-RUN DRIVER," WITH "A COMPLETE DISREGARD FOR  ...  LIFE."  ID.,
AT 758.  IN THE CONTEXT OF THIS CASE, HOWEVER, THOSE REMARKS DO NOT
SEEM SIGNIFICANTLY OUTSIDE THE BOUNDS OF PERMISSILBE ADVOCACY.  IF
RESPONDENT KNOWINGLY STRUCK THE DECEASED, THEN HE WAS A HIT-AND-RUN
DRIVER WITH LITTLE REGARD FOR HUMAN LIFE, FOR IT WAS UNDISPUTED THAT
THE DRIVER OF THE AUTOMOBILE THAT HIT THE DECEDENT DID NOT STOP TO
RENDER AID OR TO REPORT THE ACCIDENT. 

OUR EXAMINATION OF THE TRIAL RECORD REVEALS NOT ONLY THAT THERE WERE
NO ERRORS AFFECTING SUBSTANTIAL JUSTICE, BUT ALSO THAT THE TRIAL JUDGE
CONDUCTED THE TRIAL WITH SCRUPULOUS REGARD FOR THE LITIGANTS' RIGHTS. 

WE MUST CONSIDER NEXT THE SUFFICIENCY OF THE EVIDENCE ADDUCED AT
TRIAL.  OUR EXAMINATION OF THE RECORD INDICATES THAT THE JURY COULD
REASONABLY HAVE FOUND THE FOLLOWING FACTS: DECEDENT'S BODY WAS
DISCOVERED ON AN ISLAND ON THE RIGHT SIDE OF A BLACK TOP ROAD; THE BODY
WAS TWO OR THREE FEET OFF THE EDGE OF THE ROAD; NEAR THE BODY TIRE
MARKS RAN OFF THE ROAD FOR SOME DISTANCE; DEATH RESULTED FROM A VIOLENT
BLOW; THE TIME OF DEATH WAS FIXED AT ABOUT 7:30 P.M.; THE ROAD WAS THE
ONLY HIGHWAY LEADING FROM THE ISLAND TO THE RESPONDENT'S HOME; THE
RESPONDENT HAD SPENT THAT AFTERNOON AT A BAR ON THE ISLAND AND HAD
CONSUMED BETWEEN 8 AND 10 DRINKS OF WHISKEY; HE LEFT THE BAR AT ABOUT
7:30 P.M. AND DROVE TOWARD HIS HOME ON THE ROAD ON WHICH DECEDENT WAS
KILLED; AT THE TIME OF DECEDENT'S DEATH, FEW PEOPLE WERE TRAVELING THAT
HIGHWAY; ON THE DAY FOLLOWING THE ACCIDENT RESPONDENT'S AUTOMOBILE WAS
WITHOUT A RIGHT HEADLIGHT RIM AND BORE MARKS OF A RECENT BLOW TO THE
RIGHT HEADLIGHT AND TO THE RIGHT FRONT OF THE HOOD; SOME BLUE COLORING
WHICH "HAD AN APPEARANCE THAT IT COULD HAVE BEEN DONE BY CLOTHING  ...
" WAS ON THE HOOD; THE DECEDENT WAS WEARING BLUE COVERALLS WHEN HE WAS
STRUCK; A TOWEL WITH RED STAINS WHICH APPEARED TO BE BLOOD WAS FOUND
CONCEALED BETWEEN THE DRIVER'S SEAT AND SEAT COVER; PARTICLES WHICH
LOOKED LIKE HAIR WERE FOUND UNDERNEATH THE RIGHT SIDE OF THE CAR; AND
THE AUTOMOBILE WAS COVERED WITH A WHITE SUBSTANCE WHICH APPEARED TO BE
A FILM OF SOAP LEFT AFTER A WASHING. 

WE BELIEVE THAT THE COURT OF APPEALS ERRED IN CONCLUDING THAT THIS
EVIDENCE WAS INSUFFICIENT TO SUPPORT THE JURY VERDICT.  THE EVIDENCE
WAS SUFFICIENT UNDER ANY STANDARD WHICH MIGHT BE APPROPRIATE - STATE OR
FEDERAL.  SEE DICK V. NEW YORK LIFE INS. CO., 359 U.S. 437, 444-445. 
THE JURY'S VERDICT, THEREFORE, SHOULD NOT HAVE BEEN DISTURBED. 
ACCORDINGLY, THE CASE IS REVERSED AND REMANDED TO THE DISTRICT COURT
WITH INSTRUCTIONS TO ENTER JUDGMENT IN ACCORDANCE WITH THE JURY'S
VERDICT.*  IT IS SO ORDERED. 

*OUR DISPOSITION OF THE CASE MAKES IT UNNECESSARY FOR US TO CONSIDER
THE CORRECTNESS OF THE TRIAL COURT'S DISPOSITION OF THE MOTION FOR A
NEW TRIAL. 

MR. JUSTICE HARLAN, DISSENTING. 

CERTIORARI WAS GRANTED IN THIS CASE BECAUSE IT APPEARED THAT THE
QUESTION WAS PRESENTED WHETHER A STATE OR FEDERAL STANDARD DETERMINES
THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT A JURY VERDICT IN CASES IN
THE DISTRICT COURTS WHERE JURISDICTION IS BASED ON DIVERSITY OF
CITIZENSHIP.  THAT QUESTION WAS LEFT UNDECIDED IN DICK V. NEW YORK LIFE
INS. CO., 359 U.S. 437, 444-445.  THE COURT HAVING NOW CONCLUDED THAT
THE QUESTION IS NOT BEFORE IT, I BELIEVE THAT THE WRIT OF CERTIORARI
SHOULD BE DISMISSED AS IMPROVIDENTLY GRANTED.  NOTHING REMAINS IN THE
CASE, AS THE COURT DECIDES IT, EXCEPT THE QUESTION WHETHER THE EVIDENCE
WAS SUFFICIENT TO SUPPORT THE VERDICT AND QUESTIONS CONCERNING RULINGS
OF THE TRIAL JUDGE.  AS TO NONE OF THESE QUESTIONS CAN THE COURT DO
MORE THAN SECOND-GUESS, ONE STEP FURTHER REMOVED FROM THE ACTUAL
EVENTS, THE DISTRICT COURT AND THE COURT OF APPEALS.  ACCORDINGLY, THE
CASE, AS IT REVEALED ITSELF AT ARGUMENT, WAS NOT APPROPRIATE FOR REVIEW
BY THIS COURT.  SEE MY OPINION IN FERGUSON V. MOORE-MCCORMACK LINES,
INC., 352 U.S. 521, 559, AND THE DISSENTING OPINION OF MR. JUSTICE
FRANKFURTER IN THE SAME CASE, ID., AT 524.  THE VIEWS THERE EXPRESSED
APPLY WITH PARTICULAR FORCE IN A DIVERSITY CASE, WHERE THE CAUSE OF
ACTION IS FOUNDED ON STATE RATHER THAN FEDERAL LAW.  SEE THE OPINION OF
MR. JUSTICE FRANKFURTER, DISSENTING IN GIBSON V. PHILLIPS PETROLEUM
CO., 352 U.S. 874. 

ON THE MERITS, I THINK IT IS NOT APPROPRIATELY PART OF THE BUSINESS
OF THIS COURT TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE COURT OF
APPEALS, EITHER ON THE ISSUE OF SUFFICIENCY OF THE EVIDENCE OR ON THE
GRAVITY OF THE TRIAL ERRORS WHICH LED THE COURT OF APPEALS TO CONCLUDE
THAT THE RESPONDENT HAD BEEN "DEPRIVED  ...  OF HIS DAY IN COURT" AND
HAD BEEN CONVICTED "ON RUMOR AND HEARSAY, NOT OF NEGLIGENT FAULT BUT OF
BRIBERY AND CORRUPTION."  262 F.2D 754, 759. 
..END :









CLINTON V. VIRGINIA 377 U.S. 158 


NO. 294.  ARGUED APRIL 27, 1964.  - DECIDED MAY 4, 1964.  - 204 VA. 275,
130 S.E.2D 437, REVERSED. 


CLINTON V. VIRGINIA. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE MOTION TO STRIKE THE SUPPLEMENTAL BRIEF ON BEHALF OF THE
RESPONDENT IS DENIED.  THE JUDGMENT IS REVERSED.  SILVERMAN V. UNITED
STATES, 365 U.S. 505; KER V. CALIFORNIA, 374 U.S. 23. 

MR. JUSTICE CLARK, CONCURRING: SINCE THE COURT FINDS THAT THE
"SPIKED" MIKE USED BY POLICE OFFICERS PENETRATED PETITIONER'S PREMISES
SUFFICIENTLY TO BE AN ACTUAL TRESPASS THEREOF, I JOIN IN THE JUDGMENT. 

MR. JUSTICE WHITE DISSENTS. 
..END :










WILLIS SHAW FROZEN EXPRESS, INC. V. UNITED STATES 377 U.S. 159 


NO. 201.  ARGUED APRIL 23, 27, 1964.  - DECIDED MAY 4, 1964.  - REVERSED
AND REMANDED. 


THE DISTRICT COURT AFFIRMED AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION (ICC) GRANTING APPELLANT'S COMMON CARRIER APPLICATION UNDER
THE GRANDFATHER CLAUSE OF THE TRANSPORTATION ACT OF 1958 TO TRANSPORT
CERTAIN FROZEN SEASONAL AGRICULTURAL PRODUCTS BUT SUBSTANTIALLY
CURTAILING ITS PRIOR OPERATIONS.  HELD: THE ICC SHOULD RECONSIDER IN
LIGHT OF THE CARRIER'S STATUS AND ABILITY TO PERFORM, AND THE
TRANSPORTATION CHARACTERISTICS AND MARKETING PATTERN OF THE PRODUCTS. 
UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP., 315 U.S. 475, 482
489. 

WILLIS SHAW FROZEN EXPRESS, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF ARKANSAS. 

PER CURIAM. 

APPELLANT APPLIED TO THE INTERSTATE COMMERCE COMMISSION UNDER THE
GRANDFATHER CLAUSE OF THE TRANSPORTATION ACT OF 1958, SEC 7(C), 72
STAT. 573, 49 U.S.C. SEC 303(B)(6), TO TRANSPORT AS A COMMON CARRIER
OVER IRREGULAR ROUTES FROZEN FRUITS, BERRIES, AND VEGETABLES, AND
FROZEN SEAFOODS AND POULTRY WHEN TRANSPORTED WITH SUCH FROZEN FRUITS,
BERRIES, AND VEGETABLES.  THE COMMISSION GRANTED A CERTIFICATE WHICH
SUBSTANTIALLY CURTAILED APPELLANT'S PRIOR OPERATIONS.  89 M.C.C.  377. 
THE DISTRICT COURT AFFIRMED WITHOUT OPINION. 

WE THINK UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP., 315 U.S.
475, REQUIRES REVERSAL OF THE JUDGMENT AND A REMAND TO THE COMMISSION
FOR RECONSIDERATION IN LIGHT OF APPELLANT'S STATUS AND PERFORMANCE AS A
COMMON CARRIER, THE TRANSPORTATION CHARACTERISTICS AND MARKETING
PATTERN OF THESE SEASONAL AGRICULTURAL PRODUCTS, AND THE DEMONSTRATED
ABILITY OF APPELLANT TO PERFORM THE SERVICES.  ID., AT 482-489. 
REVERSED AND REMANDED. 

MR. JUSTICE HARLAN, MR. JUSTICE STEWART AND MR. JUSTICE WHITE
DISSENT, AGREEING WITH THE THREE-JUDGE DISTRICT COURT THAT THE
COMMISSION CORRECTLY EMPLOYED THE STATUTORY STANDARDS PRESCRIBED BY
CONGRESS.  "THE PRECISE DELINEATION OF THE AREA OR THE SPECIFICATION OF
LOCALITIES WHICH MAY BE SERVICED HAS BEEN ENTRUSTED BY THE CONGRESS TO
THE COMMISSION."  UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP., 315
U.S. 475, 480.  SEE ALSO ALTON R. CO. V. UNITED STATES, 315 U.S. 15, 22
23. 
..END :




UNITED STATES V. CONTINENTAL OIL 377 U.S. 161 


NO. 834.  DECIDED MAY 4, 1964.  - JUDGMENT VACATED AND CASE REMANDED. 


UNITED STATES V. CONTINENTAL OIL CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO FOR A TRIAL ON THE MERITS
OF THE CASE.  POLLER V. COLUMBIA BROADCASTING SYSTEM, INC., 368 U.S.
464. 

SEPARATE MEMORANDUM OF MR. JUSTICE HARLAN. 

THIS IS AN APPEAL BY THE GOVERNMENT IN AN ANTITRUST CASE WHEREIN THE
DISTRICT COURT ENTERED SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT
APPELLEE WITHOUT OPINION, FINDINGS OF FACT, OR CONCLUSIONS OF LAW OF
ANY KIND.  THE CASE IS HERE ON A TYPEWRITTEN RECORD OF SOME 2,000
PAGES, CONSISTING OF PLEADINGS, BRIEFS, DEPOSITIONS, EXHIBITS, AND THE
TRANSCRIPT OF A PRETRIAL CONFERENCE.   THE DISTRICT JUDGE IS NOW
DECEASED. 

THE COURT VACATES THE JUDGMENT BELOW AND REMANDS THE CASE FOR TRIAL. 
SHORT OF ITS BEING THE LAW THAT THE SUMMARY JUDGMENT PROCEDURE IS
WHOLLY UNAVAILABLE IN A GOVERNMENT ANTITRUST CASE - A HOLDING NOT
BEFORE NOR, AS I UNDERSTAND MATTERS, NOW MADE - I AM UNABLE TO SAY THAT
SUMMARY JUDGMENT WAS IMPROVIDENTLY GRANTED IN THIS INSTANCE WITHOUT
MAKING AN EXAMINATION OF THE ENTIRE RECORD; CERTAINLY THIS DISPOSITION
SHOULD NOT BE MADE SIMPLY ON THE BASIS OF THE GOVERNMENT'S STATEMENTS
THAT TRIABLE ISSUES OF FACT EXIST.  TO EXAMINE THIS LARGE RECORD
WITHOUT ANY ILLUMINATION BY THE COURT BELOW WOULD PLACE AN INTOLERABLE
BURDEN ON THIS COURT. 

IN THESE CIRCUMSTANCES I BELIEVE THAT THE PROPER COURSE IS TO VACATE
THE JUDGMENT BELOW AND REMAND THE CASE TO THE DISTRICT COURT, WITH
LEAVE TO THE DEFENDANT TO RENEW ITS MOTION FOR SUMMARY JUDGMENT BEFORE
ANOTHER DISTRICT JUDGE.  THE COURT'S ACTION, WHICH DEPRIVES THE
DEFENDANT OF THAT OPPORTUNITY, SEEMS TO ME UNWARRANTED.  IF SUMMARY
JUDGMENT WERE AGAIN GRANTED, THE DISTRICT COURT WOULD BE EXPECTED TO
FURNISH A STATEMENT OF ITS REASONS, INCLUDING SUCH FINDINGS OF FACT AND
CONCLUSIONS OF LAW AS MIGHT BE APPROPRIATE.  CF. UNITED STATES V. EL
PASO NATURAL GAS CO., 376 U.S. 651, 662 (CONCURRING-DISSENTING OPINION
OF HARLAN, J.). 
..END :





BONTZ V. KANSAS 377 U.S. 162 


NO. 758.  DECIDED MAY 4, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  REPORTED BELOW:  192 KAN. 158, 163, 386
P.2D 201, 205. 


BONTZ V. KANSAS. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE HARLAN ARE OF
THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :













HATTIESBURG BUILDING & TRADES COUNCIL V. BROOME DBA BROOME CONSTRUCTION
& MAINTENANCE CO. 377 U.S. 126 


NO. 669.  DECIDED APRIL 27, 1964.  - CERTIORARI GRANTED; 247 MISS.  458,
153 SO. 2D 695, REVERSED. 


STATE COURT HAD NO JURISDICTION TO ENJOIN THE ARGUABLY UNFAIR LABOR
PRACTICE OF UNION PICKETING AT A SECONDARY EMPLOYER'S PREMISES SINCE
THE NATIONAL LABOR RELATIONS BOARD HAD JURISDICTION, ITS STANDARDS
BEING SATISFIED BY REFERENCE TO THE OPERATIONS OF EITHER THE PRIMARY,
OR AS HERE, THE SECONDARY EMPLOYER. 

HATTIESBURG BUILDING & TRADES COUNCIL ET AL. V. BROOME, DOING BUSINESS
AS BROOME CONSTRUCTION & MAINTENANCE CO., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
MISSISSIPPI. 

PER CURIAM. 

AFTER FINDING THAT THE PRIMARY EMPLOYER WAS NOT IN COMMERCE AND
RULING THAT THE PRE-EMPTION RULE OF SAN DIEGO BUILDING TRADES COUNCIL
V. GARMON, 359 U.S. 236, WAS THEREFORE NOT APPLICABLE, THE STATE COURT
ENJOINED PICKETING AT THE PREMISES OF THE SECONDARY EMPLOYER.  THE
JUDGMENT MUST BE REVERSED.  THE JURISDICTIONAL STANDARDS ESTABLISHED BY
THE NATIONAL LABOR RELATIONS BOARD (SEE 23 N.L.R.B. ANN. REP. 8 (1958))
MAY BE SATISFIED BY REFERENCE TO THE BUSINESS OPERATIONS OF EITHER THE
PRIMARY OR THE SECONDARY EMPLOYER.  TRUCK DRIVERS LOCAL NO. 649, 93
N.L.R.B. 386; TEAMSTERS LOCAL NO. 554, 110 N.L.R.B. 1769; MADISON BLDG.
& CONST. TRADES COUNCIL, 134 N.L.R.B. 517.  HERE, AS THE RECORD CLEARLY
SHOWS, THE SECONDARY EMPLOYER'S OPERATIONS MET THE JURISDICTIONAL
REQUIREMENTS.  SINCE THE UNION'S ACTIVITIES IN THIS CASE WERE ARGUABLY
AN UNFAIR LABOR PRACTICE, SAILORS' UNION OF THE PACIFIC, 92 N.L.R.B.
547, THE STATE COURT HAD NO JURISDICTION TO ISSUE THE INJUNCTION.  SAN
DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236; CONSTRUCTION
LABORERS V. CURRY, 371 U.S. 542.   ACCORDINGLY, THE PETITION FOR
CERTIORARI IS GRANTED AND THE JUDGMENT IS REVERSED. 
..END :














CICKELLI V. OHIO 377 U.S. 128 


NO. 791.  DECIDED APRIL 27, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CICKELLI V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MICHELL V. LOUISIANA OPTOMETRY EXAMINERS 377 U.S. 128 


NO. 890.  DECIDED APRIL 27, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  245 LA. 1, 156 SO. 2D
457. 


MICHELL V. LOUISIANA BOARD OF OPTOMETRY EXAMINERS. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















BROTHERHOOD OF RAILROAD TRAINMEN V. VIRGINIA STATE BAR 377 U.S. 1 


NO. 34.  ARGUED JANUARY 13, 1964.  - DECIDED APRIL 20, 1964.  - JUDGMENT
AND DECREE VACATED, AND CASE REMANDED. 


AN INJUNCTION ISSUED BY A STATE COURT, PROHIBITING, AS THE UNLAWFUL
SOLICITATION OF LITIGATION AND THE UNAUTHORIZED PRACTICE OF LAW, A
LABOR UNION FROM ADVISING INJURED MEMBERS OR THEIR DEPENDENTS TO OBTAIN
LEGAL ASSISTANCE BEFORE SETTLING CLAIMS AND RECOMMENDING SPECIFIC
LAWYERS TO HANDLE SUCH CLAIMS, INFRINGES RIGHTS GUARANTEED BY THE FIRST
AND FOURTEENTH AMENDMENTS.  NAACP V. BUTTON, 371 U.S. 415, FOLLOWED. 

BROTHERHOOD OF RAILROAD TRAINMEN V. VIRGINIA EX REL. VIRGINIA STATE
BAR. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE VIRGINIA STATE BAR BROUGHT THIS SUIT IN THE CHANCERY COURT OF THE
CITY OF RICHMOND, VIRGINIA, AGAINST THE BROTHERHOOD OF RAILROAD
TRAINMEN, AN INVESTIGATOR EMPLOYED BY THE BROTHERHOOD, AND AN ATTORNEY
DESIGNATED ITS "REGIONAL COUNSEL," TO ENJOIN THEM FROM CARRYING ON
ACTIVITIES WHICH, THE BAR CHARGED, CONSTITUTED THE SOLICITATION OF
LEGAL BUSINESS AND THE UNAUTHORIZED PRACTICE OF LAW IN VIRGINIA.  (FN1)
IT WAS CONCEDED THAT IN ORDER TO ASSIST THE PROSECUTION OF CLAIMS BY
INJURED RAILROAD WORKERS OR BY THE FAMILIES OF WORKERS KILLED ON THE
JOB THE BROTHERHOOD MAINTAINS IN VIRGINIA AND THROUGHOUT THE COUNTRY A
DEPARTMENT OF LEGAL COUNSEL WHICH RECOMMENDS TO BROTHERHOOD MEMBERS AND
THEIR FAMILIES THE NAMES OF LAWYERS WHOM THE BROTHERHOOD BELIEVES TO BE
HONEST AND COMPETENT.  FINDING THAT THE BROTHERHOOD'S PLAN RESULTED IN
"CHANNELING ALL, OR SUBSTANTIALLY ALL," THE WORKERS' CLAIMS TO LAWYERS
CHOSEN BY THE DEPARTMENT OF LEGAL COUNSEL, THE COURT ISSUED AN
INJUNCTION AGAINST THE BROTHERHOOD'S CARRYING OUT ITS PLAN IN
VIRGINIA.  THE SUPREME COURT OF APPEALS OF VIRGINIA AFFIRMED SUMMARILY
OVER OBJECTIONS THAT THE INJUNCTION ABRIDGES THE BROTHERHOOD'S RIGHTS
UNDER THE FIRST AND FOURTEENTH AMENDMENTS, WHICH GUARANTEE FREEDOM OF
SPEECH, PETITION AND ASSEMBLY.  WE GRANTED CERTIORARI TO CONSIDER THIS
CONSTITUTIONAL QUESTION IN THE LIGHT OF OUR RECENT DECISION IN NAACP V.
BUTTON, 371 U.S. 415.  (FN2)  372 U.S. 905. 

THE BROTHERHOOD'S PLAN IS NOT A NEW ONE.  ITS ROOTS GO BACK TO 1883,
WHEN THE BROTHERHOOD WAS FOUNDED AS A FRATERNAL AND MUTUAL BENEFIT
SOCIETY TO PROMOTE THE WELFARE OF THE TRAINMEN AND "TO PROTECT THEIR
FAMILIES BY THE EXERCISE OF BENEVOLENCE, VERY NEEDFUL IN A CALLING SO
HAZARDOUS AS OURS  ...  ."  (FN3)  RAILROAD WORK AT THAT TIME WAS
INDEED DANGEROUS.  IN 1888 THE ODDS AGAINST A RAILROAD BRAKEMAN'S DYING
A NATURAL DEATH WERE ALMOST FOUR TO ONE; (FN4)  THE AVERAGE LIFE
EXPECTANCY OF A SWITCHMAN IN 1893 WAS SEVEN YEARS.  (FN5)  IT WAS QUITE
NATURAL, THEREFORE, THAT RAILROAD WORKERS COMBINED THEIR STRENGTH AND
EFFORTS IN THE BROTHERHOOD IN ORDER TO PROVIDE INSURANCE AND FINANCIAL
ASSISTANCE TO SICK AND INJURED MEMBERS AND TO SEEK SAFER WORKING
CONDITIONS.   THE TRAINMEN AND OTHER RAILROAD BROTHERHOODS WERE THE
MOVING FORCES THAT BROUGHT ABOUT THE PASSAGE OF THE SAFETY APPLIANCE
ACT  (FN6)  IN 1893 TO MAKE RAILROAD WORK LESS DANGEROUS; THEY ALSO
SUPPORTED PASSAGE OF THE FEDERAL EMPLOYERS' LIABILITY ACT  (FN7)  OF
1908 TO PROVIDE FOR RECOVERY OF DAMAGES FOR INJURED RAILROAD WORKERS
AND THEIR FAMILIES BY DOING AWAY WITH HARSH AND TECHNICAL COMMON-LAW
RULES WHICH SOMETIMES MADE RECOVERY DIFFICULT OR EVEN IMPOSSIBLE.  IT
SOON BECAME APPARENT TO THE RAILROAD WORKERS, HOWEVER, THAT SIMPLY
HAVING THESE FEDERAL STATUTES ON THE BOOKS WAS NOT ENOUGH TO ASSURE
THAT THE WORKERS WOULD RECEIVE THE FULL BENEFIT OF THE COMPENSATORY
DAMAGES CONGRESS INTENDED THEY SHOULD HAVE.  INJURED WORKERS OR THEIR
FAMILIES OFTEN FELL PREY ON THE ONE HAND TO PERSUASIVE CLAIMS ADJUSTERS
EAGER TO GAIN A QUICK AND CHEAP SETTLEMENT FOR THEIR RAILROAD
EMPLOYERS, OR ON THE OTHER TO LAWYERS EITHER NOT COMPETENT TO TRY THESE
LAWSUITS AGAINST THE ABLE AND EXPERIENCED RAILROAD COUNSEL OR TOO
WILLING TO SETTLE A CASE FOR A QUICK DOLLAR. 

IT WAS TO PROTECT AGAINST THESE OBVIOUS HAZARDS TO THE INJURED MAN OR
HIS WIDOW THAT THE WORKERS THROUGH THEIR BROTHERHOOD SET UP THEIR LEGAL
AID DEPARTMENT, SINCE RENAMED DEPARTMENT OF LEGAL COUNSEL, THE BASIC
ACTIVITIES OF WHICH THE COURT BELOW HAS ENJOINED.  UNDER THEIR PLAN THE
UNITED STATES WAS DIVIDED INTO SIXTEEN REGIONS AND THE BROTHERHOOD
SELECTED, ON THE ADVICE OF LOCAL LAWYERS AND FEDERAL AND STATE JUDGES,
A LAWYER OR FIRM IN EACH REGION WITH A REPUTATION FOR HONESTY AND SKILL
IN REPRESENTING PLAINTIFFS IN RAILROAD PERSONAL INJURY LITIGATION. 
WHEN A WORKER WAS INJURED OR KILLED, THE SECRETARY OF HIS LOCAL LODGE
WOULD GO TO HIM OR TO HIS WIDOW OR CHILDREN AND RECOMMEND THAT THE
CLAIM NOT BE SETTLED WITHOUT FIRST SEEING A LAWYER, AND THAT IN THE
BROTHERHOOD'S JUDGMENT THE BEST LAWYER TO CONSULT WAS THE COUNSEL
SELECTED BY IT FOR THAT AREA.  (FN8) 

THERE IS A DISPUTE BETWEEN THE PARTIES AS TO THE EXACT MEANING OF THE
DECREE RENDERED BELOW, BUT THE BROTHERHOOD IN THIS COURT OBJECTS
SPECIFICALLY TO THE PROVISIONS WHICH ENJOIN IT: 

"  ...  FROM HOLDING OUT LAWYERS SELECTED BY IT AS THE ONLY APPROVED
LAWYERS TO AID THE MEMBERS OR THEIR FAMILIES; ...  OR IN ANY OTHER
MANNER SOLICITING OR ENCOURAGING SUCH LEGAL EMPLOYMENT OF THE SELECTED
LAWYERS; ...  AND FROM DOING ANY ACT OR COMBINATION OF ACTS, AND FROM
FORMULATING AND PUTTING INTO PRACTICE ANY PLAN, PATTERN OR DESIGN, THE
RESULT OF WHICH IS TO CHANNEL LEGAL EMPLOYMENT TO ANY PARTICULAR LAWYER
OR GROUP OF LAWYERS  ...  ."  (FN9) 

THE BROTHERHOOD ADMITS THAT IT ADVISES INJURED MEMBERS AND THEIR
DEPENDENTS TO OBTAIN LEGAL ADVICE BEFORE MAKING SETTLEMENT OF THEIR
CLAIMS AND THAT IT RECOMMENDS PARTICULAR ATTORNEYS TO HANDLE SUCH
CLAIMS.  THE RESULT OF THE PLAN, THE BROTHERHOOD ADMITS, IS TO CHANNEL
LEGAL EMPLOYMENT TO THE PARTICULAR LAWYERS APPROVED BY THE BROTHERHOOD
AS LEGALLY AND MORALLY COMPETENT TO HANDLE INJURY CLAIMS FOR MEMBERS
AND THEIR FAMILIES.  IT IS THE INJUNCTION AGAINST THIS PARTICULAR
PRACTICE WHICH THE BROTHERHOOD, ON BEHALF OF ITS MEMBERS, CONTENDS
DENIES THEM RIGHTS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS. 
WE AGREE WITH THIS CONTENTION. 

IT CANNOT BE SERIOUSLY DOUBTED THAT THE FIRST AMENDMENT'S GUARANTEES
OF FREE SPEECH, PETITION AND ASSEMBLY GIVE RAILROAD WORKERS THE RIGHT
TO GATHER TOGETHER FOR THE LAWFUL PURPOSE OF HELPING AND ADVISING ONE
ANOTHER IN ASSERTING THE RIGHTS CONGRESS GAVE THEM IN THE SAFETY
APPLIANCE ACT AND THE FEDERAL EMPLOYERS' LIABILITY ACT, STATUTORY
RIGHTS WHICH WOULD BE VAIN AND FUTILE IF THE WORKERS COULD NOT TALK
TOGETHER FREELY AS TO THE BEST COURSE TO FOLLOW.  THE RIGHT OF MEMBERS
TO CONSULT WITH EACH OTHER IN A FRATERNAL ORGANIZATION NECESSARILY
INCLUDES THE RIGHT TO SELECT A SPOKESMAN FROM THEIR NUMBER WHO COULD BE
EXPECTED TO GIVE THE WISEST COUNSEL.  THAT IS THE ROLE PLAYED BY THE
MEMBERS WHO CARRY OUT THE LEGAL AID PROGRAM.  AND THE RIGHT OF THE
WORKERS PERSONALLY OR THROUGH A SPECIAL DEPARTMENT OF THEIR BROTHERHOOD
TO ADVISE CONCERNING THE NEED FOR LEGAL ASSISTANCE - AND, MOST
IMPORTANTLY, WHAT LAWYER A MEMBER COULD CONFIDENTLY RELY ON - IS AN
INSEPARABLE PART OF THIS CONSTITUTIONALLY GUARANTEED RIGHT TO ASSIST
AND ADVISE EACH OTHER. 

VIRGINIA UNDOUBTEDLY HAS BROAD POWERS TO REGULATE THE PRACTICE OF LAW
WITHIN ITS BORDERS; (FN10) BUT WE HAVE HAD OCCASION IN THE PAST TO
RECOGNIZE THAT IN REGULATING THE PRACTICE OF LAW A STATE CANNOT IGNORE
THE RIGHTS OF INDIVIDUALS SECURED BY THE CONSTITUTION.  (FN11)  FOR AS
WE SAID IN NAACP V. BUTTON, SUPRA, 371 U.S., AT 429, "A STATE CANNOT
FORECLOSE THE EXERCISE OF CONSTITUTIONAL RIGHTS BY MERE LABELS."  HERE
WHAT VIRGINIA HAS SOUGHT TO HALT IS NOT A COMMERCIALIZATION OF THE
LEGAL PROFESSION WHICH MIGHT THREATEN THE MORAL AND ETHICAL FABRIC OF
THE ADMINISTRATION OF JUSTICE.   IT IS NOT "AMBULANCE CHASING."  THE
RAILROAD WORKERS, BY RECOMMENDING COMPETENT LAWYERS TO EACH OTHER,
OBVIOUSLY ARE NOT THEMSELVES ENGAGING IN THE PRACTICE OF LAW, NOR ARE
THEY OR THE LAWYERS WHOM THEY SELECT PARTIES TO ANY SOLICITING OF
BUSINESS.  IT IS INTERESTING TO NOTE THAT IN GREAT BRITAIN UNIONS DO
NOT SIMPLY RECOMMEND LAWYERS TO MEMBERS IN NEED OF ADVICE; THEY RETAIN
COUNSEL, PAID BY THE UNION, TO REPRESENT MEMBERS IN PERSONAL LAWSUITS,
(FN12)  A PRACTICE SIMILAR TO THAT WHICH WE UPHELD IN NAACP V. BUTTON,
SUPRA. 

A STATE COULD NOT, BY INVOKING THE POWER TO REGULATE THE PROFESSIONAL
CONDUCT OF ATTORNEYS, INFRINGE IN ANY WAY THE RIGHT OF INDIVIDUALS AND
THE PUBLIC TO BE FAIRLY REPRESENTED IN LAWSUITS AUTHORIZED BY CONGRESS
TO EFFECTUATE A BASIC PUBLIC INTEREST.  LAYMEN CANNOT BE EXPECTED TO
KNOW HOW TO PROTECT THEIR RIGHTS WHEN DEALING WITH PRACTICED AND
CAREFULLY COUNSELED ADVERSARIES, CF. GIDEON V. WAINWRIGHT, 372 U.S.
335, AND FOR THEM TO ASSOCIATE TOGETHER TO HELP ONE ANOTHER TO PRESERVE
AND ENFORCE RIGHTS GRANTED THEM UNDER FEDERAL LAWS CANNOT BE CONDEMNED
AS A THREAT TO LEGAL ETHICS.  (FN13)  THE STATE CAN NO MORE KEEP THESE
WORKERS FROM USING THEIR COOPERATIVE PLAN TO ADVISE ONE ANOTHER THAN IT
COULD USE MORE DIRECT MEANS TO BAR THEM FROM RESORTING TO THE COURTS TO
VINDICATE THEIR RIGHTS.  THE RIGHT TO PETITION THE COURTS CANNOT BE SO
HANDICAPPED. 

ONLY LAST TERM WE HAD OCCASION TO CONSIDER AN EARLIER ATTEMPT BY
VIRGINIA TO ENJOIN THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE FROM ADVISING PROSPECTIVE LITIGANTS TO SEEK THE
ASSISTANCE OF PARTICULAR ATTORNEYS.  IN FACT, IN THAT CASE, UNLIKE THIS
ONE, THE ATTORNEYS WERE ACTUALLY EMPLOYED BY THE ASSOCIATION WHICH
RECOMMENDED THEM, AND RECOMMENDATIONS WERE MADE EVEN TO NONMEMBERS. 
NAACP V. BUTTON, SUPRA.  WE HELD THAT "ALTHOUGH THE PETITIONER HAS
AMPLY SHOWN THAT ITS ACTIVITIES FALL WITHIN THE FIRST AMENDMENT'S
PROTECTIONS, THE STATE HAS FAILED TO ADVANCE ANY SUBSTANTIAL REGULATORY
INTEREST, IN THE FORM OF SUBSTANTIVE EVILS FLOWING FROM PETITIONER'S
ACTIVITIES, WHICH CAN JUSTIFY THE BROAD PROHIBITIONS WHICH IT HAS
IMPOSED."  371 U.S., AT 444.  (FN14)  IN THE PRESENT CASE THE STATE
AGAIN HAS FAILED TO SHOW ANY APPRECIABLE PUBLIC INTEREST IN PREVENTING
THE BROTHERHOOD FROM CARRYING OUT ITS PLAN TO RECOMMEND THE LAWYERS IT
SELECTS TO REPRESENT INJURED WORKERS.  THE BROTHERHOOD'S ACTIVITIES
FALL JUST AS CLEARLY WITHIN THE PROTECTION OF THE FIRST AMENDMENT.  AND
THE CONSTITUTION PROTECTS THE ASSOCIATIONAL RIGHTS OF THE MEMBERS OF
THE UNION PRECISELY AS IT DOES THOSE OF THE NAACP. 

WE HOLD THAT THE FIRST AND FOURTEENTH AMENDMENTS PROTECT THE RIGHT OF
THE MEMBERS THROUGH THEIR BROTHERHOOD TO MAINTAIN AND CARRY OUT THEIR
PLAN FOR ADVISING WORKERS WHO ARE INJURED TO OBTAIN LEGAL ADVICE AND
FOR RECOMMENDING SPECIFIC LAWYERS.  SINCE THE PART OF THE DECREE TO
WHICH THE BROTHERHOOD OBJECTS INFRINGES THOSE RIGHTS, IT CANNOT STAND;
AND TO THE EXTENT ANY OTHER PART OF THE DECREE FORBIDS THESE ACTIVITIES
IT TOO MUST FALL.  AND, OF COURSE, LAWYERS ACCEPTING EMPLOYMENT UNDER
THIS CONSTITUTIONALLY PROTECTED PLAN HAVE A LIKE PROTECTION WHICH THE
STATE CANNOT ABRIDGE. 

THE JUDGMENT AND DECREE ARE VACATED AND THE CASE IS REMANDED FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE INVESTIGATOR AND THE REGIONAL COUNSEL WERE NOT SERVED WITH
PROCESS AND ARE NOT PARTIES. 

FN2 WE DO NOT FIND IT NECESSARY TO CONSIDER THE BROTHERHOOD'S
ADDITIONAL ARGUMENT THAT THE DECREE VIOLATES THE BROTHERHOOD'S RIGHT TO
REPRESENT WORKERS WHICH IS GUARANTEED BY THE RAILWAY LABOR ACT, 44
STAT. 577, AS AMENDED, 45 U.S.C. SECS 151-188. 

FN3  CONSTITUTION OF THE BROTHERHOOD OF RAILROAD TRAINMEN AND
BROTHERHOOD OF RAILROAD TRAINMEN INSURANCE DEPARTMENT, PREAMBLE. 

FN4  INTERSTATE COMMERCE COMMISSION, THIRD ANNUAL REPORT (1889), 85. 

FN5  GRIFFITH, "THE VINDICATION OF A NATIONAL PUBLIC POLICY UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT," 18 LAW AND CONTEMP.  PROB.  160,
163. 

FN6  27 STAT. 531, AS AMENDED, 45 U.S.C. SECS 1-43. 

FN7  35 STAT. 65, AS AMENDED, 45 U.S.C. SECS 51-60.  AN EARLIER
VERSION OF THE LAW PASSED TWO YEARS EARLIER, 34 STAT. 232, HAD BEEN
HELD UNCONSTITUTIONAL.  EMPLOYERS' LIABILITY CASES, 207 U.S. 463.  THE
CONSTITUTIONALITY OF THE 1908 STATUTE WAS SUSTAINED IN THE SECOND
EMPLOYERS' LIABILITY CASES, 223 U.S. 1. 

FN8  THE BROTHERHOOD ALSO PROVIDES A STAFF, NOW AT ITS OWN EXPENSE,
TO INVESTIGATE ACCIDENTS TO HELP GATHER EVIDENCE FOR USE BY THE INJURED
WORKER OR HIS FAMILY SHOULD A TRIAL BE NECESSARY TO VINDICATE THEIR
RIGHTS. 

FN9  CERTAIN OTHER PROVISIONS OF THE DECREE ENJOIN THE BROTHERHOOD
FROM SHARING COUNSEL FEES WITH LAWYERS WHOM IT RECOMMENDED AND FROM
COUNTENANCING THE SHARING OF FEES BY ITS REGIONAL INVESTIGATORS.  THE
BROTHERHOOD DENIES THAT IT HAS ENGAGED IN SUCH PRACTICES SINCE 1959, IN
COMPLIANCE WITH A DECREE OF THE SUPREME COURT OF ILLINOIS.  SEE IN RE
BROTHERHOOD OF RAILROAD TRAINMEN, 13 ILL. 2D 391, 150 N.E.2D 163. 
SINCE THE BROTHERHOOD IS NOT OBJECTING TO THE OTHER PROVISIONS OF THE
DECREE EXCEPT INSOFAR AS THEY MIGHT LATER BE CONSTRUED AS BARRING THE
BROTHERHOOD FROM HELPING INJURED WORKERS OR THEIR FAMILIES BY
RECOMMENDING THAT THEY NOT SETTLE WITHOUT A LAWYER AND BY RECOMMENDING
CERTAIN LAWYERS SELECTED BY THE BROTHERHOOD, IT IS ONLY TO THAT EXTENT
THAT WE PASS UPON THE VALIDITY OF THE OTHER PROVISIONS.  BECAUSE OF OUR
DISPOSITION OF THE CASE, WE DO NOT CONSIDER THE BROTHERHOOD'S CLAIM
THAT THE FINDINGS OF THE COURT WERE NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE. 

FN10  THE BAR RELIES ON THE COMMON LAW, THE CANONS OF ETHICS OF THE
AMERICAN BAR ASSOCIATION, ADOPTED INTO THE RULES OF THE SUPREME COURT
OF APPEALS OF VIRGINIA, 171 VA. XVIII, AND SEVERAL VIRGINIA STATUTES
PROHIBITING THE UNAUTHORIZED PRACTICE OF LAW.  THE CANONS OF ETHICS TO
WHICH THE BAR REFERS PROHIBIT RESPECTIVELY STIRRING UP OF LITIGATION,
CONTROL OR EXPLOITATION BY A LAY AGENCY OF PROFESSIONAL SERVICES OF A
LAWYER, AND AIDING THE UNAUTHORIZED PRACTICE OF LAW.  CANONS 28, 35,
47.  THE STATUTES RESPECTIVELY SET THE QUALIFICATIONS FOR THE PRACTICE
OF LAW IN THE STATE AND PROVIDE FOR INJUNCTIONS AGAINST "RUNNING,
CAPPING, SOLICITING AND MAINTENANCE."  VIRGINIA CODE, 1950, SECS 54-42,
54-83.1.    FN11  NAACP V. BUTTON, 371 U.S. 415; KONIGSBERG V. STATE
BAR, 353 U.S. 252; SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232. 

FN12  SEE FEATHER, THE ESSENCE OF TRADE UNIONISM (LONDON, 1963), 42
43.    FN13  CF. DRINKER, LEGAL ETHICS (1953), 167; HILDEBRAND V. STATE
BAR, 36 CAL. 2D 504, 515, 225 P.2D 508, 514 (CARTER, J., DISSENTING),
36 CAL. 2D, AT 521, 225 P.2D, AT 518 (TRAYNOR, J., DISSENTING). 

FN14  SEE ALSO GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMM., 372
U.S. 539; LOUISIANA EX REL. GREMILLION V. NAACP, 366 U.S. 293; SHELTON
V. TUCKER, 364 U.S. 479; BATES V. CITY OF LITTLE ROCK, 361 U.S. 516;
NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S. 449; SCHNEIDER V. STATE,
308 U.S. 147. 

MR. JUSTICE STEWART TOOK NO PART IN THE DISPOSITION OF THIS CASE. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

BY ITS DECISION TODAY THE COURT OVERTHROWS STATE REGULATION OF THE
LEGAL PROFESSION AND RELEGATES THE PRACTICE OF LAW TO THE LEVEL OF A
COMMERCIAL ENTERPRISE.  THE COURT PERMITS A LABOR UNION - CONTRARY TO
STATE LAW - TO ENGAGE IN THE UNAUTHORIZED PRACTICE OF SOLICITING
PERSONAL INJURY CASES FROM AMONG ITS MEMBERSHIP ON BEHALF OF 16
REGIONAL ATTORNEYS WHOM ITS PRESIDENT HAS PLACED ON THE UNION'S
APPROVED LIST.  LOCAL OFFICIALS OF THE UNION CALL ON EACH MEMBER
SUFFERING AN INJURY AND SEEK TO SECURE EMPLOYMENT OF THESE APPROVED
ATTORNEYS IN THE PROSECUTION OF CLAIMS FOR DAMAGES ARISING THEREFROM. 
MOREOVER THE UNION, THROUGH ITS PRESIDENT, NOT ONLY CONTROLS THE
APPOINTMENT AND DISMISSAL OF THE APPROVED ATTORNEY BUT ALSO HAS
CONSIDERABLE INFLUENCE OVER HIS FEES AND OFTEN CONTROLS THE DISPOSITION
OF CASES.  FURTHERMORE, FROM 1930 TO AT LEAST 1959, THE UNION HAD
REQUIRED THESE APPROVED ATTORNEYS TO PAY TO IT A PORTION OF THEIR FEES,
USUALLY 25%.  SUCH AN ARRANGEMENT MAY EVEN NOW BE IN EFFECT THROUGH THE
RUSE OF REIMBURSEMENT FOR INVESTIGATORY SERVICES RENDERED BY THE
UNION.  THIS STATE OF AFFAIRS DEGRADES THE PROFESSION, PROSELYTES THE
APPROVED ATTORNEYS TO CERTAIN REQUIRED ATTITUDES AND CONTRAVENES BOTH
THE ACCEPTED ETHICS OF THE PROFESSION AND THE STATUTORY AND JUDICIAL
RULES OF ACCEPTABLE CONDUCT. 

THE COURT EXCUSES THE PRACTICE ON THE POLICY GROUND THAT THE UNION
MEMBERSHIP NEEDS A CORPS OF ATTORNEYS EXPERIENCED IN PERSONAL INJURY
LITIGATION BECAUSE ORDINARY "LAWYERS ARE EITHER NOT COMPETENT TO TRY
THESE LAWSUITS AGAINST THE ABLE AND EXPERIENCED RAILROAD COUNSEL OR TOO
WILLING TO SETTLE A CASE FOR A QUICK DOLLAR."  TO ME THIS IS A SERIOUS
INDICTMENT OF THE PROFESSION.  IN THE CASES THAT I HAVE PASSED ON HERE
NUMBERING ABOUT 177 DURING THE PAST 15 YEARS - I DARE SAY THAT COUNSEL
FOR THE RAILROAD EMPLOYEE HAS EXHIBITED ADVOCACY NOT INFERIOR TO THAT
OF HIS OPPONENT (ALTHOUGH I DO NOT REMEMBER THAT ANY ONE OF THE 16
APPROVED ATTORNEYS APPEARED IN THESE CASES).  INDEED, THE RAILROAD
EMPLOYEE HAS PREVAILED IN PRACTICALLY ALL OF THE CASES AND THE
RECOVERIES HAVE RANGED AS HIGH AS $625,000.  SEE GALLICK V. BALTIMORE &
OHIO R. CO., 372 U.S. 108 (1963); TRANSCRIPT OF RECORD, P. 7.  UNDER
THESE FACTS THE COURT'S RATIONALE WILL NOT STAND UP, EVEN AS A POLICY
GROUND FOR APPROVING THIS PATENT VIOLATION OF THE CARDINAL ETHICS OF
OUR PROFESSION AND FLAGRANT DISOBEDIENCE TO THE LAW OF MOST OF OUR
STATES. 

THE COURT DEPENDS UPON NAACP V. BUTTON, 371 U.S. 415 (1963), TO
SUPPORT ITS POSITION.  BUT THERE THE VITAL FACT WAS THAT THE CLAIMED
PRIVILEGE WAS A "FORM OF POLITICAL EXPRESSION" TO SECURE, THROUGH COURT
ACTION, CONSTITUTIONALLY PROTECTED CIVIL RIGHTS.  (FN1)  PERSONAL
INJURY LITIGATION IS NOT A FORM OF POLITICAL EXPRESSION, BUT RATHER A
PROCEDURE FOR THE SETTLEMENT OF DAMAGE CLAIMS.  NO GUARANTEED CIVIL
RIGHT IS INVOLVED.  HERE, THE QUESTION INVOLVES SOLELY THE REGULATION
OF THE PROFESSION, A POWER LONG RECOGNIZED AS BELONGING PECULIARLY TO
THE STATE.  BUTTON, AS WELL AS ITS ANCESTRY CITED BY THE MAJORITY IN
THE FOOTNOTES, IS NOT APPOSITE. 

FINALLY, NO SUBSTANTIVE EVIL WOULD RESULT FROM THE ACTIVITY PERMITTED
IN BUTTON.  BUT HERE THE PAST HISTORY OF THE UNION INDICATES THE
CONTRARY.  ITS LEGAL AID DEPARTMENT (NOW THE DEPARTMENT OF LEGAL
COUNSEL) WAS SET UP IN 1930 FOR THE ADMITTED PURPOSES OF ADVISING
MEMBERS "RELATIVE TO THEIR RIGHTS RESPECTING CLAIMS FOR DAMAGES" AND
ASSISTING THEM "IN NEGOTIATING SETTLEMENTS  ...  ."  THE DEPARTMENT HAD
A COMPLETE REPORTING SERVICE ON ALL MAJOR INJURIES OR DEATHS SUFFERED
BY ITS MEMBERS, REGIONAL INVESTIGATORS TO WHOM SUCH REPORTS WERE
REFERRED, AND THE 16 APPROVED REGIONAL COUNSEL (MANY OF WHOM REMAIN THE
SAME TODAY) TO WHOM THE CASES WERE CHANNELED FOR PROSECUTION AND WHO
SPLIT THEIR FEES WITH THE UNION.  AND, WHAT IS OF EVEN MORE
SIGNIFICANCE, THE TRIAL COURT IN THIS CASE FOUND "THAT THE DEFENDANT
BROTHERHOOD STILL ADHERES TO THE PATTERN AND DESIGN OF THE PLAN
FORMULATED AND IMPLEMENTED IN 1930." 

THE UNION ADMITS THAT IT DID OPERATE IN THIS MANNER UNTIL 1959 BUT
SAYS THAT IT HAS NOW REFORMED ITS OPERATION.  BUT THE RECORD SHOWS THAT
THIS IDENTICAL UNION PLAN HAS BEEN BEFORE SEVERAL OTHER COURTS  (FN2)
AND, WHILE THE UNION HAS REPEATEDLY PROMISED TO REFORM, AS HERE, IT HAS
CONSISTENTLY RENEWED THE SAME PRACTICES.  BUT EVEN IF THE UNION HAS
SINCERELY REFORMED, WHICH I DOUBT, THE PLAN IT NOW PROPOSES TO FOLLOW
IS SUBJECT TO THE SAME DEFICIENCIES.  IT INCLUDES:  THE APPROVAL OF 16
REGIONAL ATTORNEYS BY THE PRESIDENT OF THE UNION, WHO ALSO HAS POWER TO
DISCHARGE THEM AT HIS PLEASURE; THE SOLICITATION OF ALL INJURED MEMBERS
BY THE LOCAL OFFICIALS OF THE BROTHERHOOD WHO URGE THE EMPLOYMENT OF AN
APPROVED COUNSEL; THE FURNISHING OF THE NAME OF THE APPROVED COUNSEL TO
THE INJURED BROTHER AS THE ONLY ATTORNEY APPROVED BY THE BROTHERHOOD;
THE FURNISHING OF THE NAMES AND ADDRESSES OF INJURED MEMBERS TO THE
APPROVED ATTORNEYS; THE FURNISHING OF INVESTIGATIVE SERVICES TO THE
APPROVED ATTORNEY, THE COST OF WHICH, IT IS INDICATED, COMES FROM THE
FEES RECEIVED BY THE LATTER; AND, FINALLY, THE "TOOTING" OF THE
APPROVED ATTORNEYS IN UNION LITERATURE AND MEETINGS. 

I DO NOT READ THE DECREE APPROVED BY THE STATE AS PROHIBITING UNION
MEMBERS FROM RECOMMENDING AN ATTORNEY TO THEIR BROTHERS IN THE UNION. 
VIRGINIA HAS SOUGHT ONLY TO HALT THE GROSS ABUSES OF CHANNELING AND
SOLICITING LITIGATION WHICH HAVE BEEN GOING ON HERE FOR 30 YEARS.  THE
POTENTIAL FOR EVIL IN THE UNION'S SYSTEM IS ENORMOUS AND, IN MY VIEW,
WILL BRING DISREPUTE TO THE LEGAL PROFESSION.  THE SYSTEM MUST ALSO
WORK TO THE DISADVANTAGE OF THE BROTHERHOOD MEMBERS BY DIRECTING THEIR
CLAIMS INTO THE HANDS OF THE 16 APPROVED ATTORNEYS WHO ARE SUBJECT TO
THE CONTROL OF ONE MAN, THE PRESIDENT OF THE UNION.  FINALLY, IT WILL
ENCOURAGE FURTHER DEPARTURES FROM THE HIGH STANDARDS SET BY CANONS OF
ETHICS AS WELL AS BY STATE REGULATORY PROCEDURES AND WILL BE A GREEN
LIGHT TO OTHER GROUPS WHO FOR YEARS HAVE ATTEMPTED TO ENGAGE IN SIMILAR
PRACTICES.  E.G., CHICAGO BAR ASSN. V. CHICAGO MOTOR CLUB, 362 ILL. 50,
199 N.E. 1; RHODE ISLAND BAR ASSN. V. AUTOMOBILE SERVICE ASSN., 55 R.I.
122, 179 A. 139; CF. SEMLER V. OREGON STATE BOARD OF DENTAL EXAMINERS,
294 U.S. 608 (1935); WILLIAMSON V. LEE OPTICAL OF OKLAHOMA, INC., 348
U.S. 483 (1955). 

FN1  "IN THE CONTEXT OF NAACP OBJECTIVES, LITIGATION IS NOT A
TECHNIQUE OF RESOLVING PRIVATE DIFFERENCES; IT IS A MEANS FOR ACHIEVING
THE LAWFUL OBJECTIVES OF EQUALITY OF TREATMENT BY ALL GOVERNMENT,
FEDERAL, STATE AND LOCAL, FOR THE MEMBERS OF THE NEGRO COMMUNITY IN
THIS COUNTRY.  IT IS THUS A FORM OF POLITICAL EXPRESSION."  NAACP V.
BUTTON, SUPRA, AT 429. 

FN2  E.G., IN RE PETITION OF COMMITTEE ON RULE 28 OF THE CLEVELAND
BAR ASSN., 15 OHIO L. ABS.  106 (1933); IN RE BROTHERHOOD OF RAILROAD
TRAINMEN, 13 ILL. 2D 391, 150 N.E.2D 163 (1958); IN RE O'NEILL, 5 F.
SUPP. 465 (E.D.N.Y. 1933); YOUNG V. GULF M.&O.R. CO., NO. 3957 (E.D.
MO. 1946); REYNOLDS V. GULF M.O. & TEXAS PAC. R. CO., NO. 772 (E.D.
TENN. 1946); NORTH CAROLINA EX REL. MCLEAN V. HICE, SUPERIOR CT. OF
N.C., COUNTY OF BUNCOMBE (1948). 
..END :





SIMPSON V. UNION OIL CO. OF CALIFORNIA 377 U.S. 13 


NO. 87.  ARGUED JANUARY 15-16, 1964.  - DECIDED APRIL 20, 1964.  - 311
F.2D 764, REVERSED AND REMANDED. 


RESPONDENT OIL COMPANY SUPPLIES GASOLINE IN EIGHT WESTERN STATES TO
NUMEROUS RETAILERS, INCLUDING PETITIONER, WHO LEASE OUTLETS FROM
RESPONDENT AND ENTER INTO A "CONSIGNMENT" AGREEMENT UNDER WHICH
RESPONDENT RETAINS "TITLE" TO THE GASOLINE UNTIL SOLD, PAYS PROPERTY
TAXES THEREON, AND FIXES THE SELLING PRICE THEREFOR.  PETITIONER IS
COMPENSATED BY A MINIMUM COMMISSION, ASSUMES OPERATING COSTS AND MOST
TYPES OF LOSSES ON THE GASOLINE, AND CARRIES PERSONAL LIABILITY AND
PROPERTY INSURANCE.  THE LEASE, LIKE THE "CONSIGNMENT" AGREEMENT, RUNS
FOR A YEAR AND IS ALLEGEDLY NOT RENEWABLE UNLESS PRESCRIBED CONDITIONS
ARE MET, INCLUDING THE RETAILER'S ADHERENCE TO PRICES SET BY
RESPONDENT.  WHEN PETITIONER, ALLEGEDLY TO MEET A COMPETITIVE PRICE,
SOLD GASOLINE BELOW THE FIXED PRICE, RESPONDENT SOLELY FOR THAT REASON
REFUSED TO RENEW THE LEASE AND TERMINATED THE "CONSIGNMENT" AGREEMENT,
WHEREUPON PETITIONER BROUGHT THIS ACTION FOR DAMAGES UNDER SEC 4 OF THE
CLAYTON ACT FOR VIOLATION OF SECS 1 AND 2 OF THE SHERMAN ACT.  THE
FEDERAL DISTRICT COURT AFTER HEARINGS GRANTED RESPONDENT'S MOTION FOR
SUMMARY JUDGMENT, WHICH THE COURT OF APPEALS AFFIRMED, CONCLUDING THAT,
ALTHOUGH THERE WERE ASSUMEDLY TRIABLE ISSUES OF LAW, PETITIONER HAD
SUFFERED NO ACTIONABLE WRONG OR DAMAGE.  HELD: RESALE PRICE MAINTENANCE
THROUGH A COERCIVE TYPE OF "CONSIGNMENT" AGREEMENT LIKE THAT INVOLVED
HERE VIOLATES THE ANTITRUST LAWS, CAUSING PETITIONER TO SUFFER
ACTIONABLE WRONG OR DAMAGE.  PP. 14-25. 

(A)  THE "CONSIGNMENT" AGREEMENT AND LEASE INJURE INTERSTATE COMMERCE
BY DEPRIVING INDEPENDENT DEALERS OF THE EXERCISE OF FREE JUDGMENT
WHETHER TO BECOME CONSIGNEES AT ALL OR REMAIN CONSIGNEES, AND TO SELL
AT COMPETITIVE PRICES.  THAT THE RETAILER CAN REFUSE TO DEAL CANNOT
UNDER THESE CIRCUMSTANCES IMMUNIZE THE SUPPLIER FROM THE ANTITRUST
LAWS.  P. 16. 

(B)  AN ACTIONABLE WRONG RESULTS WHENEVER THE RESTRAINT OF TRADE OR
MONOPOLISTIC PRACTICE HAS AN IMPACT ON THE MARKET; AND IT IS IRRELEVANT
THAT THE COMPLAINANT IS ONLY ONE MERCHANT OR THAT ON RESPONDENT'S
FAILURE TO RENEW HIS LEASE ANOTHER DEALER MAY TAKE HIS PLACE.  PP. 16
17. 

(C)  A SUPPLIER MAY NOT USE A COERCIVE DEVICE, WHETHER IN THE FORM OF
AN AGREEMENT USED COERCIVELY, OR IN ANY OTHER FORM, TO ACHIEVE RESALE
PRICE MAINTENANCE.  UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29,
FOLLOWED.  P. 17. 

(D)  A CONSIGNMENT, HOWEVER LAWFUL AS A MATTER OF PRIVATE CONTRACT
LAW, MUST YIELD TO FEDERAL ANTITRUST POLICY.  P. 18. 

(E)  THE ANTITRUST LAWS PREVENT THE FIXING OF PRICES THROUGH MANY
RETAIL OUTLETS BY THE "CONSIGNMENT" DEVICE.  UNITED STATES V. GENERAL
ELECTRIC CO., 272 U.S. 476, DISTINGUISHED.  PP. 21-24. 

(F)  ALTHOUGH THE ISSUE OF RESALE PRICE MAINTENANCE UNDER THE SHERMAN
ACT IS RESOLVED HERE, THE CASE MUST BE REMANDED FOR A HEARING ON THE
OTHER ISSUES, INCLUDING THOSE RAISED UNDER THE MCGUIRE ACT AND THE
DAMAGES, IF ANY, SUFFERED.  P. 24. 

(G)  THE QUESTION IS RESERVED WHETHER THERE MAY BE EQUITIES THAT
WOULD WARRANT ONLY PROSPECTIVE APPLICATION IN DAMAGE SUITS OF THE RULE
GOVERNING PRICE FIXING BY THE "CONSIGNMENT" DEVICE WHICH THIS COURT NOW
ANNOUNCES.  P. 25. 

SIMPSON V. UNION OIL CO. OF CALIFORNIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR DAMAGES UNDER SEC 4 OF THE CLAYTON ACT, 38 STAT.
731, 15 U.S.C. SEC 15, FOR VIOLATION OF SECS 1 AND 2 OF THE SHERMAN
ACT, 26 STAT. 209, AS AMENDED, 50 STAT. 693, 15 U.S.C. SECS. 1, 2.  THE
COMPLAINT GROWS OUT OF A SO-CALLED RETAIL DEALER "CONSIGNMENT"
AGREEMENT WHICH, IT IS ALLEGED, UNION OIL REQUIRES LESSEES OF ITS
RETAIL OUTLETS TO SIGN, OF WHICH SIMPSON WAS ONE.  THE "CONSIGNMENT"
AGREEMENT IS FOR ONE YEAR AND THEREAFTER UNTIL CANCELED, IS TERMINABLE
BY EITHER PARTY AT THE END OF ANY YEAR AND, BY ITS TERMS, CEASES UPON
ANY TERMINATION OF THE LEASE.  THE LEASE IS ALSO FOR ONE YEAR; AND IT
IS ALLEGED THAT IT IS USED TO POLICE THE RETAIL PRICES CHARGED BY THE
CONSIGNEES, RENEWALS NOT BEING MADE IF THE CONDITIONS PRESCRIBED BY THE
COMPANY ARE NOT MET.  THE COMPANY, PURSUANT TO THE "CONSIGNMENT"
AGREEMENT, SETS THE PRICES AT WHICH THE RETAILER SELLS THE GASOLINE. 
WHILE "TITLE" TO THE CONSIGNED GASOLINE "SHALL REMAIN IN CONSIGNOR
UNTIL SOLD BY CONSIGNEE," AND WHILE THE COMPANY PAYS ALL PROPERTY TAXES
ON ALL GASOLINE IN POSSESSION OF SIMPSON, HE MUST CARRY PERSONAL
LIABILITY AND PROPERTY DAMAGE INSURANCE BY REASON OF THE "CONSIGNED"
GASOLINE AND IS RESPONSIBLE FOR ALL LOSSES OF THE "CONSIGNED" GASOLINE
IN HIS POSSESSION, SAVE FOR SPECIFIED ACTS OF GOD.  SIMPSON IS
COMPENSATED BY A MINIMUM COMMISSION AND PAYS ALL THE COSTS OF OPERATION
IN THE FAMILIAR MANNER. 

THE RETAIL PRICE FIXED BY THE COMPANY FOR THE GASOLINE DURING THE
PERIOD IN QUESTION WAS 29.9 CENTS PER GALLON; AND SIMPSON, DESPITE THE
COMPANY'S DEMAND THAT HE ADHERE TO THE AUTHORIZED PRICE, SOLD IT AT
27.9 CENTS, ALLEGEDLY TO MEET A COMPETITIVE PRICE.  SOLELY BECAUSE
SIMPSON SOLD GASOLINE BELOW THE FIXED PRICE, UNION OIL REFUSED TO RENEW
THE LEASE; TERMINATION OF THE "CONSIGNMENT" AGREEMENT ENSUED; AND THIS
SUIT WAS FILED.  THE TERMS OF THE LEASE AND "CONSIGNMENT" AGREEMENT ARE
NOT IN DISPUTE NOR THE METHOD OF THEIR APPLICATION IN THIS CASE.  THE
INTERSTATE CHARACTER OF UNION OIL'S BUSINESS IS CONCEDED, AS IS THE
EXTENSIVE USE BY IT OF THE LEASE-CONSIGNMENT AGREEMENT IN EIGHT WESTERN
STATES.  (FN1) 

AFTER TWO PRETRIAL HEARINGS, THE COMPANY MOVED FOR A SUMMARY
JUDGMENT.  SIMPSON MOVED FOR A PARTIAL SUMMARY JUDGMENT - THAT THE
CONSIGNMENT LEASE PROGRAM IS IN VIOLATION OF SECS 1 AND 2 OF THE
SHERMAN ACT.  THE DISTRICT COURT, CONCLUDING THAT "ALL THE FACTUAL
DISPUTES" HAD BEEN ELIMINATED FROM THE CASE, ENTERTAINED THE MOTIONS. 
THE DISTRICT COURT GRANTED THE COMPANY'S MOTION AND DENIED SIMPSON'S,
HOLDING AS TO THE LATTER THAT HE HAD NOT ESTABLISHED A VIOLATION OF THE
SHERMAN ACT AND, EVEN ASSUMING SUCH A VIOLATION, THAT HE HAD NOT
SUFFERED ANY ACTIONABLE DAMAGE.  THE COURT OF APPEALS AFFIRMED.  WHILE
IT ASSUMED THAT THERE WERE TRIABLE ISSUES OF LAW, IT CONCLUDED THAT
SIMPSON SUFFERED NO ACTIONABLE WRONG OR DAMAGE, 311 F.2D 764.  THE CASE
IS HERE ON A WRIT OF CERTIORARI.  373 U.S. 901. 

WE DISAGREE WITH THE COURT OF APPEALS THAT THERE IS NO ACTIONABLE
WRONG OR DAMAGE IF A SHERMAN ACT VIOLATION IS ASSUMED.  IF THE
"CONSIGNMENT" AGREEMENT ACHIEVES RESALE PRICE MAINTENANCE IN VIOLATION
OF THE SHERMAN ACT, IT AND THE LEASE ARE BEING USED TO INJURE
INTERSTATE COMMERCE BY DEPRIVING INDEPENDENT DEALERS OF THE EXERCISE OF
FREE JUDGMENT WHETHER TO BECOME CONSIGNEES AT ALL, OR REMAIN
CONSIGNEES, AND, IN ANY EVENT, TO SELL AT COMPETITIVE PRICES.  THE FACT
THAT A RETAILER CAN REFUSE TO DEAL DOES NOT GIVE THE SUPPLIER IMMUNITY
IF THE ARRANGEMENT IS ONE OF THOSE SCHEMES CONDEMNED BY THE ANTITRUST
LAWS. 

THERE IS ACTIONABLE WRONG WHENEVER THE RESTRAINT OF TRADE OR
MONOPOLISTIC PRACTICE HAS AN IMPACT ON THE MARKET; AND IT MATTERS NOT
THAT THE COMPLAINANT MAY BE ONLY ONE MERCHANT.  SEE KLOR'S V. BROADWAY
HALE STORES, 359 U.S. 207, 213; RADIANT BURNERS V. PEOPLES GAS CO., 364
U.S. 656, 660.  AS WE STATED IN RADOVICH V. NATIONAL FOOTBALL LEAGUE,
352 U.S. 445, 453-454: 

"CONGRESS HAS, BY LEGISLATIVE FIAT, DETERMINED THAT SUCH PROHIBITED
ACTIVITIES ARE INJURIOUS TO THE PUBLIC AND HAS PROVIDED SANCTIONS
ALLOWING PRIVATE ENFORCEMENT OF THE ANTITRUST LAWS BY AN AGGRIEVED
PARTY.  THESE LAWS PROTECT THE VICTIMS OF THE FORBIDDEN PRACTICES AS
WELL AS THE PUBLIC." 

THE FACT THAT, ON FAILURE TO RENEW A LEASE, ANOTHER DEALER TAKES
SIMPSON'S PLACE AND RENDERS THE SAME SERVICE TO THE PUBLIC IS NO MORE
AN ANSWER HERE THAN IT WAS IN POLLER V. COLUMBIA BROADCASTING SYSTEM,
368 U.S. 464, 473.  FOR CONGRESS, NOT THE OIL DISTRIBUTOR, IS THE
ARBITER OF THE PUBLIC INTEREST; AND CONGRESS HAS CLOSELY PATROLLED
PRICE FIXING WHETHER EFFECTED THROUGH RESALE PRICE MAINTENANCE
AGREEMENTS OR OTHERWISE.  (FN2)  THE EXCLUSIVE REQUIREMENTS CONTRACTS
STRUCK DOWN IN STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293, WERE
NOT SAVED BECAUSE DEALERS NEED NOT HAVE AGREED TO THEM, BUT COULD HAVE
GONE ELSEWHERE.  IF THAT WERE A DEFENSE, A SUPPLIER COULD REGIMENT
THOUSANDS OF OTHERWISE COMPETITIVE DEALERS IN RESALE PRICE MAINTENANCE
PROGRAMS MERELY BY FEAR OF NONRENEWAL OF SHORT-TERM LEASES. 

WE MADE CLEAR IN UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29,
THAT A SUPPLIER MAY NOT USE COERCION ON ITS RETAIL OUTLETS TO ACHIEVE
RESALE PRICE MAINTENANCE.  WE REITERATE THAT VIEW, ADDING THAT IT
MATTERS NOT WHAT THE COERCIVE DEVICE IS.  UNITED STATES V. COLGATE, 250
U.S. 300, AS EXPLAINED IN PARKE, DAVIS, 362 U.S., AT 37, WAS A CASE
WHERE THERE WAS ASSUMED TO BE NO AGREEMENT TO MAINTAIN RETAIL PRICES. 
HERE WE HAVE SUCH AN AGREEMENT; IT IS USED COERCIVELY, AND, IT PROMISES
TO BE EQUALLY IF NOT MORE EFFECTIVE IN MAINTAINING GASOLINE PRICES THAN
WERE THE PARKE, DAVIS TECHNIQUES IN FIXING MONOPOLY PRICES ON DRUGS. 

CONSIGNMENTS PERFORM AN IMPORTANT FUNCTION IN TRADE AND COMMERCE, AND
THEIR INTEGRITY HAS BEEN RECOGNIZED BY MANY COURTS, INCLUDING THIS
ONE.  SEE LUDVIGH V. AMERICAN WOOLEN CO., 231 U.S. 522.  YET
CONSIGNMENTS, THOUGH USEFUL IN ALLOCATING RISKS BETWEEN THE PARTIES AND
DETERMINING THEIR RIGHTS INTER SE, DO NOT NECESSARILY CONTROL THE
RIGHTS OF OTHERS, WHETHER THEY BE CREDITORS OR SOVEREIGNS.  THUS THE
DEVICE HAS BEEN EXTENSIVELY REGULATED BY THE STATES.  22 AM. JUR.,
FACTORS, SEC 8; HARTFORD INDEMNITY CO. V. ILLINOIS, 298 U.S. 155. 
CONGRESS, TOO, HAS ENTERED PARTS OF THE FIELD, ESTABLISHING BY THE ACT
OF JUNE 10, 1930, 46 STAT. 531, AS AMENDED, 7 U.S.C. SEC 499A ET SEQ.,
A PERVASIVE SYSTEM OF CONTROL OVER COMMISSION MERCHANTS DEALING IN
PERISHABLE AGRICULTURAL COMMODITIES. 

ONE WHO SENDS A RUG OR A PAINTING OR OTHER WORK OF ART TO A MERCHANT
OR A GALLERY FOR SALE AT A MINIMUM PRICE CAN, OF COURSE, HOLD THE
CONSIGNEE TO THE BARGAIN.  A RETAIL MERCHANT MAY, INDEED, HAVE
INVENTORY ON CONSIGNMENT, THE TERMS OF WHICH BIND THE PARTIES INTER SE.
YET THE CONSIGNOR DOES NOT ALWAYS PREVAIL OVER CREDITORS IN CASE OF
BANKRUPTCY, WHERE A RECORDING STATUTE OR A "TRADERS ACT" OR A "SIGN
STATUTE" IS IN EFFECT.  4 COLLIER, BANKRUPTCY (14TH ED.), PP. 1090
1097, 1484-1486.  THE INTERESTS OF THE GOVERNMENT ALSO FREQUENTLY
OVERRIDE AGREEMENTS THAT PRIVATE PARTIES MAKE.  HERE WE HAVE AN
ANTITRUST POLICY EXPRESSED IN ACTS OF CONGRESS.  ACCORDINGLY, A
CONSIGNMENT, NO MATTER HOW LAWFUL IT MIGHT BE AS A MATTER OF PRIVATE
CONTRACT LAW, MUST GIVE WAY BEFORE THE FEDERAL ANTITRUST POLICY.  THUS
A CONSIGNMENT IS NOT ALLOWED TO BE USED AS A CLOAK TO AVOID SEC 3 OF
THE CLAYTON ACT.  SEE STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258
U.S. 346, 353-356; CF. STRAUS V. VICTOR TALKING MACH. CO., 243 U.S.
490, 500-501.  NOR DOES SEC 1 OF THE SHERMAN ACT TOLERATE AGREEMENTS
FOR RETAIL PRICE MAINTENANCE.  SEE UNITED STATES V. SOCONY-VACUUM OIL
CO., 310 U.S. 150, 221-222; UNITED STATES V. PARKE, DAVIS & CO.,
SUPRA. 

WE ARE ENLIGHTENED ON PRESENT-DAY MARKETING METHODS BY RECENT
CONGRESSIONAL INVESTIGATIONS.  IN THE AUTOMOBILE FIELD THE PRICE IS
"THE MANUFACTURER'S SUGGESTED RETAIL PRICE," (FN3) NOT A PRICE
COERCIVELY EXACTED; NOR DO AUTOMOBILES GO ON CONSIGNMENT; THEY ARE
SOLD.  (FN4)  RESALE PRICE MAINTENANCE OF GASOLINE THROUGH THE
"CONSIGNMENT" DEVICE IS INCREASING.  (FN5)  THE "CONSIGNMENT" DEVICE IN
THE GASOLINE FIELD IS USED FOR RESALE PRICE MAINTENANCE.  THE THEORY
AND PRACTICE OF GASOLINE PRICE FIXING IN VOGUE UNDER THE "CONSIGNMENT"
AGREEMENT HAS BEEN WELL EXPOSED BY CONGRESS.  A UNION OIL OFFICIAL IN
RECENT TESTIMONY BEFORE A HOUSE COMMITTEE ON SMALL BUSINESS EXPLAINED
THE PRICE MECHANISM: 

"MR. ROOSEVELT.  WHO SETS THE PRICE IN YOUR CONSIGNMENT STATION,
DEALER CONSIGNMENT STATION? 

"MR. RATH.  WE DO. 

"MR. ROOSEVELT.  YOU DO? 

"MR. RATH.  YES.  WE DO IT ON THIS BASIS:  YOU SEE, HE IS PAID A
COMMISSION TO SELL THESE PRODUCTS FOR US.  NOW, WE GO OUT INTO THE
MARKET AREA AND FIND OUT WHAT THE COMPETITIVE MAJOR PRICE IS, WHAT THAT
LEVEL IS, AND WE SET OUR HOUSE-BRAND PRICE AT THAT."  (FN6) 

DEALERS, LIKE SIMPSON, ARE INDEPENDENT BUSINESSMEN; AND THEY HAVE ALL
OR MOST OF THE INDICIA OF ENTREPRENEURS, EXCEPT FOR PRICE FIXING.  THE
RISK OF LOSS OF THE GASOLINE IS ON THEM, APART FROM ACTS OF GOD.  THEIR
RETURN IS AFFECTED BY THE RISE AND FALL IN THE MARKET PRICE, THEIR
COMMISSIONS DECLINING AS RETAIL PRICES DROP.  (FN7)  PRACTICALLY THE
ONLY POWER THEY HAVE TO BE WHOLLY INDEPENDENT BUSINESSMEN, WHOSE
SERVICE DEPENDS ON THEIR OWN INITIATIVE AND ENTERPRISE, IS TAKEN FROM
THEM BY THE PROVISO THAT THEY MUST SELL THEIR GASOLINE AT PRICES FIXED
BY UNION OIL.  BY REASON OF THE LEASE AND "CONSIGNMENT" AGREEMENT
DEALERS ARE COERCIVELY LACED INTO AN ARRANGEMENT UNDER WHICH THEIR
SUPPLIER IS ABLE TO IMPOSE NONCOMPETITIVE PRICES ON THOUSANDS OF
PERSONS WHOSE PRICES OTHERWISE MIGHT BE COMPETITIVE.  THE EVIL OF THIS
RESALE PRICE MAINTENANCE PROGRAM, LIKE THAT OF THE REQUIREMENTS
CONTRACTS HELD ILLEGAL BY STANDARD OIL CO. V. UNITED STATES, SUPRA, IS
ITS INEXORABLE POTENTIALITY FOR AND EVEN CERTAINTY IN DESTROYING
COMPETITION IN RETAIL SALES OF GASOLINE BY THESE NOMINAL "CONSIGNEES"
WHO ARE IN REALITY SMALL STRUGGLING COMPETITORS SEEKING RETAIL GAS
CUSTOMERS. 

AS WE HAVE SAID, AN OWNER OF AN ARTICLE MAY SEND IT TO A DEALER WHO
MAY IN TURN UNDERTAKE TO SELL IT ONLY AT A PRICE DETERMINED BY THE
OWNER.  THERE IS NOTHING ILLEGAL ABOUT THAT ARRANGEMENT.  WHEN,
HOWEVER, A "CONSIGNMENT" DEVICE IS USED TO COVER A VAST GASOLINE
DISTRIBUTION SYSTEM, FIXING PRICES THROUGH MANY RETAIL OUTLETS, THE
ANTITRUST LAWS PREVENT CALLING THE "CONSIGNMENT" AN AGENCY,  (FN8) FOR
THEN THE END RESULT OF UNITED STATES V. SOCONY-VACUUM OIL CO., SUPRA,
WOULD BE AVOIDED MERELY BY CLEVER MANIPULATION OF WORDS, NOT BY
DIFFERENCES IN SUBSTANCE.  THE PRESENT, COERCIVE "CONSIGNMENT" DEVICE,
IF SUCCESSFUL AGAINST CHALLENGE UNDER THE ANTITRUST LAWS, FURNISHES A
WOODEN FORMULA FOR ADMINISTERING PRICES ON A VAST SCALE.  (FN9) 

RELIANCE IS PLACED ON UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S.
476, WHERE A CONSIGNMENT ARRANGEMENT WAS UTILIZED TO MARKET PATENTED
ARTICLES.  UNION OIL CORRECTLY ARGUES THAT THE CONSIGNMENT IN THAT CASE
SOMEWHAT PARALLELS THE ONE IN THE INSTANT CASE.  (FN10)  THE COURT IN
THE GENERAL ELECTRIC CASE DID NOT RESTRICT ITS RULING TO PATENTED
ARTICLES; IT, INDEED, SAID THAT THE USE OF THE CONSIGNMENT DEVICE WAS
AVAILABLE TO THE OWNERS OF ARTICLES "PATENTED OR OTHERWISE."  ID., AT
488.  BUT WHATEVER MAY BE SAID OF THE GENERAL ELECTRIC CASE ON ITS
SPECIAL FACTS, INVOLVING PATENTS, IT IS NOT APPOSITE TO THE SPECIAL
FACTS HERE. 

THE COURT IN THAT CASE PARTICULARLY RELIED ON THE FACT THAT PATENT
RIGHTS HAVE LONG INCLUDED LICENSES "TO MAKE, USE AND VEND" THE PATENTED
ARTICLE "FOR ANY ROYALTY OR UPON ANY CONDITION THE PERFORMANCE OF WHICH
IS REASONABLY WITHIN THE REWARD WHICH THE PATENTEE BY THE GRANT OF THE
PATENT IS ENTITLED TO SECURE."  ID., AT 489.  CONGRESS IN ESTABLISHING
THE PATENT SYSTEM INCLUDED 35 U.S.C. SEC. 154, WHICH PROVIDES IN PART:
"EVERY PATENT SHALL CONTAIN A SHORT TITLE OF THE INVENTION AND A GRANT
TO THE PATENTEE, HIS HEIRS OR ASSIGNS, FOR THE TERM OF SEVENTEEN YEARS,
OF THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OR SELLING THE
INVENTION THROUGHOUT THE UNITED STATES, REFERRING TO THE SPECIFICATION
FOR THE PARTICULARS THEREOF." 

"THE RIGHT TO MANUFACTURE, THE RIGHT TO SELL, AND THE RIGHT TO USE
ARE EACH SUBSTANTIVE RIGHTS, AND MAY BE GRANTED OR CONFERRED SEPARATELY
BY THE PATENTEE."  ADAMS V. BURKE, 17 WALL.  453, 456.  LONG PRIOR TO
THE GENERAL ELECTRIC CASE, PRICE FIXING IN THE MARKETING OF PATENTED
ARTICLES HAD BEEN CONDONED (BEMENT V. NATIONAL HARROW CO., 186 U.S.
70), PROVIDED IT DID NOT EXTEND TO SALES BY PURCHASERS OF THE PATENTED
ARTICLES.  ADAMS V. BURKE, SUPRA; ETHYL GASOLINE CORP. V. UNITED
STATES, 309 U.S. 436. 

THE PATENT LAWS WHICH GIVE A 17-YEAR MONOPOLY ON "MAKING, USING, OR
SELLING THE INVENTION" ARE IN PARI MATERIA WITH THE ANTITRUST LAWS AND
MODIFY THEM PRO TANTO.  THAT WAS THE RATIO DECIDENDI OF THE GENERAL
ELECTRIC CASE.  SEE 272 U.S., AT 485.  WE DECLINE THE INVITATION TO
EXTEND IT. 

TO ALLOW UNION OIL TO ACHIEVE PRICE FIXING IN THIS VAST DISTRIBUTION
SYSTEM THROUGH THIS "CONSIGNMENT" DEVICE WOULD BE TO MAKE LEGALITY FOR
ANTITRUST PURPOSES TURN ON CLEVER DRAFTSMANSHIP.  WE REFUSE TO LET A
MATTER SO VITAL TO A COMPETITIVE SYSTEM REST ON SUCH EASY
MANIPULATION.  CF. UNITED STATES V. MASONITE CORP., 316 U.S. 265, 280. 
HENCE ON THE ISSUE OF RESALE PRICE MAINTENANCE UNDER THE SHERMAN ACT
THERE IS NOTHING LEFT TO TRY, FOR THERE WAS AN AGREEMENT FOR RESALE
PRICE MAINTENANCE, COERCIVELY EMPLOYED. 

THE CASE MUST BE REMANDED FOR A HEARING ON ALL THE OTHER ISSUES IN
THE CASE, INCLUDING THOSE RAISED UNDER THE MCGUIRE ACT, 66 STAT. 631,
15 U.S.C. SEC 45, AND THE DAMAGES, IF ANY, SUFFERED.  WE INTIMATE NO
VIEWS ON ANY OTHER ISSUE; WE HOLD ONLY THAT RESALE PRICE MAINTENANCE
THROUGH THE PRESENT, COERCIVE TYPE OF "CONSIGNMENT" AGREEMENT IS
ILLEGAL UNDER THE ANTITRUST LAWS, AND THAT PETITIONER SUFFERED
ACTIONABLE WRONG OR DAMAGE.  WE RESERVE THE QUESTION WHETHER, WHEN ALL
THE FACTS ARE KNOWN, THERE MAY BE ANY EQUITIES THAT WOULD WARRANT ONLY
PROSPECTIVE APPLICATION IN DAMAGE SUITS OF THE RULE GOVERNING PRICE
FIXING BY THE "CONSIGNMENT" DEVICE WHICH WE ANNOUNCE TODAY.  REVERSED
AND REMANDED. 

FN1  AS OF DECEMBER 31, 1957, UNION OIL SUPPLIED GASOLINE TO 4,133
RETAIL STATIONS IN THE EIGHT WESTERN STATES OF CALIFORNIA, WASHINGTON,
OREGON, NEVADA, ARIZONA, MONTANA, UTAH AND IDAHO.  OF THAT FIGURE,
2,003 STATIONS WERE OWNED OR LEASED BY UNION OIL AND, IN TURN, LEASED
OR SUBLEASED TO AN INDEPENDENT RETAILER; 14 WERE COMPANY-OPERATED
TRAINING STATIONS; AND THE REMAINING 2,116 STATIONS WERE OWNED BY THE
RETAILER OR LEASED BY HIM FROM THIRD PERSONS.  UNION OIL HAD
"CONSIGNMENT" AGREEMENTS AS OF THAT DATE WITH 1,978 (99%) OF THE LESSEE
RETAILERS AND WITH 1,327 (63%) OF THE NONLESSEE-RETAILERS. 

FN2  SEE THE MCGUIRE ACT, 66 STAT. 631, 15 U.S.C. SEC 45; THE MILLER
TYDINGS ACT, 50 STAT. 693, 15 U.S.C. SEC 1; UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S. 150. 

FN3  H.R. REP. NO. 1958, 85TH CONG., 2D SESS., S. REP. NO. 1555, 85TH
CONG., 2D SESS. 

FN4  H.R. REP. NO. 1958, SUPRA, NOTE 3, AT 1. 

FN5  SEE H.R. REP. NO. 1157, 85TH CONG., 1ST SESS., PP. 6-7.  THE
ASSISTANT ATTORNEY GENERAL IN CHARGE OF THE ANTITRUST DIVISION,
DEPARTMENT OF JUSTICE, TESTIFIED: 

"ANOTHER ISSUE RELATING TO PRICE FIXING CONCERNS CERTAIN OF THE
PRACTICES WHICH THE MAJOR OIL COMPANIES HAVE USED TO PRESERVE THEIR
TANK WAGON PRICE STRUCTURE; FOR EXAMPLE, THE PLACING OF THE DEALER ON A
COMMISSION OR CONSIGNMENT AGENCY BASIS, WHICH NARROWS HIS NORMAL MARGIN
OF PROFIT AND EFFECTIVELY FIXES THE RETAIL PRICE."  ID., AT 7.  THE
COMMITTEE REPORT SAID: 

"ONE OF THE EFFECTS OF THIS EXPANSION OF COMMISSION AND CONSIGNMENT
OUTLETS IS THAT MORE AND MORE SERVICE STATION OPERATORS LOSE THEIR
STATUS AS INDEPENDENT BUSINESSMEN.  THE SELLING PRICE AND GROSS MARGIN
OF PROFIT PER GALLON IN THE COMMISSION-TYPE STATIONS ARE WHOLLY WITHIN
THE CONTROL OF THE SUPPLIER."  IBID. 

FN6  SEE HEARINGS, HOUSE SELECT COMMITTEE ON SMALL BUSINESS, 85TH
CONG., 1ST SESS., H.R.  RES. 56, PT. III, PP. 79-80.  THE SAME OFFICIAL
GAVE THIS JUSTIFICATION FOR THE CONSIGNMENT PROGRAM - A JUSTIFICATION
SIMILAR TO THAT TRADITIONALLY ADVANCED FOR RESALE PRICE MAINTENANCE: 

"CONSIGNMENT IS OUR METHOD OF PROTECTING OUR DEALERS' PROFIT MARGINS
DURING DISTURBED RETAIL PRICE CONDITIONS, AT THE SAME TIME MAINTAINING
OUR DEALERS' POSITIONS AS PEOPLE HANDLING A PREMIUM QUALITY PRODUCT. 
WE HAVE NOT USED CONSIGNMENT AS A MEANS OF UNFAIR COMPETITION, NOR HAS
IT BEEN USED TO PRICE ANY DEALER OUT OF ANY STATION.  IT HAS INSTEAD
BEEN USED BY US TO MAINTAIN A COMPETITIVE RELATIONSHIP BETWEEN OUR
DEALERS' PRICES AND THOSE OF OUR COMPETITORS. 

"WE ARE PROUD OF OUR RETAIL CONSIGNMENT PROGRAM WHICH HAS
ACCOMPLISHED THE ENDS OUTLINED ABOVE.  WE HAVE BEEN ABLE TO MAKE THESE
ACCOMPLISHMENTS WITHOUT TAKING AWAY ANY OF THE INDEPENDENCE OF OUR
DEALERS.  THROUGH OUR CONSIGNMENT PROGRAM WE HAVE ESTABLISHED AND
MAINTAINED UNDER ALL CONDITIONS THE MINIMUM GUARANTEED MARGINS FOR OUR
DEALERS THAT ARE THE BEST IN THE INDUSTRY.  IT HAS BROUGHT OUR DEALERS
ONE OTHER SUBSTANTIAL BENEFIT ALSO - AND I WOULD LIKE TO POINT THIS OUT
STRONGLY - THEY HAVE AVAILABLE FOR OTHER USES THE INVESTMENT WHICH
OTHERWISE WOULD BE IN GASOLINE INVENTORIES.  THIS AMOUNTS TO AN AVERAGE
OF $2,500 PER DEALER. 

"IF THERE IS ANY SUSPICION OR RESENTMENT BY ANY DEALERS OR DEALER
GROUPS, IT CERTAINLY APPEARS THAT UNION OIL CO.'S RETAIL CONSIGNMENT
PROGRAM IS A GREATLY MISUNDERSTOOD ONE.  IT DOES NOT REMOVE ANY ASPECT
OF A DEALER'S INDEPENDENCE OTHER THAN GIVING US THE RIGHT TO NAME THE
DEALER'S SELLING PRICES.  IT HAS NOT BEEN USED TO CREATE OR DISTURB ANY
RETAIL PRICE SITUATIONS AND INSTEAD HAS, AS A MATTER OF FACT,
CONTRIBUTED MATERIALLY TO THE ECONOMIC WELFARE OF OUR DEALERS. 

"IF WE WERE TODAY TO WITHDRAW THE CONSIGNMENT PROGRAM AS IT IS NOW
SET UP, WE KNOW THAT SUCH ACTION WOULD BE BITTERLY OPPOSED BY OUR
DEALERS.  ANY PROBLEMS THAT ARE LAID AT ITS DOORSTEP - AND THERE WERE
SOME PROBLEMS AS THERE ARE IN ANY NEW PROGRAM - HAVE BEEN CORRECTED TO
THE POINT THAT A SURVEY OF OUR DEALERS TODAY WOULD REVEAL THAT THE
GREAT MAJORITY OF THEM ARE HEARTILY IN FAVOR OF CONSIGNMENT.  WE ARE
ABLE TO OFFER THE NAMES OF HUNDREDS OF OUR DEALERS WHO ARE IN FAVOR OF
THE PROGRAM."  ID., AT 86-87. 

FN7  THE BASIC AGREEMENT IN FORCE DURING MOST OF THE PERIOD WHEN
SIMPSON WAS A CONSIGNEE PROVIDED THAT HIS COMMISSION WAS 1 1/2 CENTS
PER GALLON MORE THAN THE AMOUNT BY WHICH THE PRICE AT WHICH THE COMPANY
"AUTHORIZED" HIM TO SELL EXCEEDED A POSTED "TANK WAGON" PRICE
APPLICABLE TO THOSE GALLONS.  HOWEVER, IF THE "AUTHORIZED" PRICE FELL
BELOW A POSTED "MINIMUM RETAIL" PRICE, THE COMMISSION WAS REDUCED BY
50% OF THE DIFFERENCE BETWEEN "MINIMUM RETAIL" AND "AUTHORIZED"
RETAIL.  IN NO EVENT COULD THE COMMISSION BE LESS THAN 5.95 CENTS FOR
REGULAR AND 5.75 CENTS FOR ETHYL. 

SHORTLY BEFORE SIMPSON CEASED TO BE A CONSIGNEE THE PROGRAM WAS
CHANGED.  THE GUARANTEED MINIMUM WAS ELIMINATED AND THE CONSIGNEE
ABSORBED 20% OF THE DIFFERENCE IF "AUTHORIZED" PRICES FELL BELOW
"MINIMUM RETAIL."  IF THE "AUTHORIZED" PRICE EXCEEDED "MINIMUM RETAIL,"
THE COMMISSION INCREASED BY 80% OF THE EXCESS, AS COMPARED WITH 100%
THEREOF UNDER THE FORMER PLAN. 

FN8  SEE KLAUS, SALE, AGENCY AND PRICE MAINTENANCE, 28 COL. L. REV.
312, 441, 443-454 (1928). 

FN9  A.A. BERLE RECENTLY DESCRIBED THE CRITICAL IMPORTANCE OF PRICE
CONTROL TO MONEY MAKING BY THE LARGE OLIGARCHIES OF BUSINESS, OR THE
"BEHEMOTHS" AS HE CALLS THEM: 

"ARE THESE BEHEMOTHS GOOD AT MAKING GOODS - OR MERELY GOOD AT MAKING
MONEY?  DO THEY COME OUT BETTER BECAUSE THEY MANUFACTURE MORE
EFFICIENTLY - OR BECAUSE THEY 'CONTROL THE MARKET' AND COLLECT UNDULY
HIGH PRICES FROM THE LONG-SUFFERING AMERICAN CONSUMER? 

"AGAIN, NO ONE QUITE KNOWS.  IT IS PRETTY CLEAR THAT MOST PRICES ARE
ESTABLISHED ONLY PARTLY BY COMPETITION, AND PARTLY BY ADMINISTRATION. 
ECONOMISTS ARE JUST BEGINNING TO WRESTLE WITH THE PROBLEM OF
'ADMINISTERED' PRICES.  THE THREE OR FOUR 'BIGS' IN ANY PARTICULAR LINE
ARE HAPPY TO STAY WITH A GOOD PRICE LEVEL FOR THEIR PRODUCT.  IF THE
PRICE GETS TOO HIGH, SOME SMART VICE PRESIDENT IN CHARGE OF SALES MAY
SEE A CHANCE TO TAKE A FAT SLICE OF BUSINESS AWAY FROM HIS
COMPETITORS. 

"BUT WHILE ANY ONE OF THE TWO OR THREE BIGS KNOWS HE CAN REDUCE
PRICES AND START TAKING ALL THE BUSINESS THERE IS, HE KNOWS, TOO, THAT
ONE OR ALL OF HIS ASSOCIATES WILL SOON DROP THE PRICE BELOW THAT.  IN
THE ENSUING PRICE WAR, NOBODY WILL MAKE MONEY FOR QUITE A WHILE. 

"SO, AN UNEASY BALANCE IS STRUCK, AND EVERYONE'S PRICE REMAINS ABOUT
THE SAME.  SHOP AROUND FOR AN AUTOMOBILE AND YOU WILL SEE HOW THIS
WORKS.  ECONOMISTS CALL IT 'IMPERFECT COMPETITION' - A TACITLY ACCEPTED
PRICE THAT IS NOT NECESSARILY THE PRICE A STIFF COMPETITIVE FREE MARKET
WOULD CREATE.  ONLY BIG CONCERNS CAN SWING THIS SORT OF COMPETITION
EFFECTIVELY. 

"WE DO NOT REALLY KNOW WHETHER BIGS MAKE MORE MONEY BECAUSE THEY ARE
EFFICIENT OR BECAUSE, THROUGH THEIR SIZE, THEY CAN 'ADMINISTER'
PRICES."  BIGNESS:  CURSE OR OPPORTUNITY?  NEW YORK TIMES MAGAZINE,
FEB. 18, 1962, PP. 18, 55, 58. 

FN10  IN GENERAL ELECTRIC THE CONSIGNEE WAS RESPONSIBLE FOR LOST,
DAMAGED OR MISSING ITEMS FROM THE STOCK IN HIS POSSESSION AND THE
CONSIGNOR ASSUMED ALL RISKS OF FIRE, FLOOD AND OBSOLESCENCE, WHILE IN
THE INSTANT CASE THE CONSIGNEE IS "RESPONSIBLE TO CONSIGNOR FOR ALL
GASOLINES CONSIGNED TO HIM, OR FOR LOSS THEREOF OR DAMAGE THERETO FROM
ANY CAUSE WHATSOEVER OTHER THAN EARTHQUAKE, LIGHTNING, FLOOD, FIRE OR
EXPLOSION NOT CAUSED BY HIS NEGLIGENCE AND WILL PAY CONSIGNOR FOR ALL
GASOLINES SOLD, LOST OR DAMAGED." 

IN GENERAL ELECTRIC THE CONSIGNEES WERE, IN THEIR REGULAR BUSINESS,
WHOLESALE OR RETAIL MERCHANTS OF OTHER MERCHANDISE AND SOME OF THEM HAD
PREVIOUSLY SO HANDLED THE CONSIGNOR'S LAMPS, WHILE IN THE INSTANT CASE
THE CONSIGNEES, ALTHOUGH SOME OF THEM HAD PREVIOUSLY BEEN REGULAR
RETAIL MERCHANTS, DEAL EXCLUSIVELY IN THE CONSIGNOR'S GASOLINE. 

GENERAL ELECTRIC CO. PAID "ALL" TAXES ASSESSED ON THE STOCK OF LAMPS,
WHEREAS UNION OIL PAYS ONLY PROPERTY TAXES. 

GENERAL ELECTRIC CO. CARRIED "WHATEVER INSURANCE IS CARRIED" ON THE
STOCK HELD BY CONSIGNEES, WHILE UNION OIL APPARENTLY IS NOT OBLIGATED
TO CARRY ANY INSURANCE. 

MR. JUSTICE HARLAN TOOK NO PART IN THE DISPOSITION OF THIS CASE. 

MR. JUSTICE STEWART, DISSENTING. 

IN THIS CASE THE DISTRICT COURT GRANTED A SUMMARY JUDGMENT IN FAVOR
OF THE RESPONDENT, FINDING THAT THE RESPONDENT HAD NOT VIOLATED THE
SHERMAN ACT, AND THAT EVEN IF THERE HAD BEEN A VIOLATION, THE
PETITIONER HAD NOT SUFFERED ANY DAMAGES.  THE COURT OF APPEALS AFFIRMED
UPON THE THEORY THAT, EVEN ASSUMING A SHERMAN ACT VIOLATION, "ANY
DAMAGE OCCURRING TO SIMPSON WAS THE RESULT OF HIS OWN FREE AND
DELIBERATE CHOICE AND HE COULD NOT DELIBERATELY AND KNOWLINGLY ENTER
INTO CONTRACTUAL OBLIGATIONS AND THEN AND THEREAFTER CONTEND HE WAS
INJURED BY THE RESULTS OF HIS OWN ACTS."  311 F.2D 764, AT 769. 

I THINK THE REASONING UPON WHICH THE COURT OF APPEALS PROCEEDED IS
UNTENABLE.  THE GRAVAMEN OF THE PETITIONER'S COMPLAINT WAS THAT HE HAD
BEEN COERCED INTO A LEASE CONDITIONED UPON ACCEPTANCE OF THE
RESPONDENT'S ALLEGEDLY UNLAWFUL SYSTEM OF SELLING.  IF, AS THE COURT OF
APPEALS ASSUMED, THERE HAD BEEN SUCH A VIOLATION OF THE SHERMAN ACT, IT
WAS INCONSISTENT TO ASSUME THAT THE PETITIONER COULD NOT HAVE BEEN
SUBJECT TO THE COERCION HE ALLEGED AND COULD NOT HAVE SUFFERED
DAMAGES.  BUT THE ROOT ERROR IN THIS CASE, IT SEEMS TO ME, WAS THE
DISTRICT COURT'S DECISION TO TERMINATE THE CONTROVERSY BY WAY OF A
SUMMARY JUDGMENT.  I THEREFORE AGREE WITH THE COURT THAT THE JUDGMENT
OF THE COURT OF APPEALS SHOULD BE SET ASIDE AND THE CASE REMANDED TO
THE DISTRICT COURT FOR A TRIAL ON THE MERITS.  POLLER V. COLUMBIA
BROADCASTING SYSTEM, 368 U.S. 464.  BUT I THINK THAT UPON REMAND THERE
SHOULD BE A FULL TRIAL OF ALL THE ISSUES IN THIS LITIGATION, BECAUSE I
COMPLETELY DISAGREE WITH THE COURT THAT WHENEVER A BONA FIDE CONSIGNOR,
EMPLOYING NUMEROUS AGENTS, SETS THE PRICE AT WHICH HIS PROPERTY IS TO
BE SOLD, "THE ANTITRUST LAWS PREVENT CALLING THE 'CONSIGNMENT' AN
AGENCY," AND TRANSFORM THE CONSIGNMENT INTO A SALE.  IN THE PRESENT
POSTURE OF THIS CASE, SUCH A DETERMINATION, OVERRULING AS IT DOES A
DOCTRINE WHICH HAS STOOD UNQUESTIONED FOR ALMOST 40 YEARS, IS
UNWARRANTED, UNNECESSARY AND PREMATURE. 

IN UNITED STATES V. GENERAL ELECTRIC, 272 U.S. 476, THIS COURT HELD
THAT A BONA FIDE CONSIGNMENT AGREEMENT OF THIS KIND DOES NOT VIOLATE
THE SHERMAN ACT.  THE COURT TODAY CONCEDES THAT "THE CONSIGNMENT IN
THAT CASE SOMEWHAT PARALLELS THE ONE IN THE INSTANT CASE."  THE FACT OF
THE MATTER IS, SO FAR AS THE RECORD NOW BEFORE US DISCLOSES, THE TWO
AGREEMENTS ARE VIRTUALLY INDISTINGUISHABLE.  (FN1)  INSTEAD OF
EXPRESSLY OVERRULING GENERAL ELECTRIC, HOWEVER, THE COURT SEEKS TO
DISTINGUISH THAT CASE UPON THE SPECIOUS GROUND THAT ITS UNDERPINNINGS
REST ON PATENT LAW. 

IT IS, OF COURSE, TRUE THAT WHAT WAS SOLD IN GENERAL ELECTRIC WAS NOT
GASOLINE, BUT LAMP BULBS WHICH HAD BEEN MANUFACTURED UNDER A PATENT. 
BUT UNTIL TODAY NO ONE HAS EVER CONSIDERED THIS FACT RELEVANT TO THE
HOLDING IN THAT CASE THAT BONA FIDE CONSIGNMENT AGREEMENTS DO NOT
VIOLATE THE ANTITRUST LAWS "HOWEVER COMPREHENSIVE AS A MASS OR WHOLE IN
THEIR EFFECT  ...  ."  ID., AT 488.  IN ADDITION TO THE UNAMBIGUOUS
STATEMENT IN CHIEF JUSTICE TAFT'S OPINION FOR A UNANIMOUS COURT THAT
"THE OWNER OF AN ARTICLE, PATENTED OR OTHERWISE, IS NOT VIOLATING THE
COMMON LAW, OR THE ANTI-TRUST LAW, BY SEEKING TO DISPOSE OF HIS ARTICLE
DIRECTLY TO THE CONSUMER AND FIXING THE PRICE BY WHICH HIS AGENTS
TRANSFER THE TITLE FROM HIM DIRECTLY TO SUCH CONSUMER," 272 U.S., AT
488, THE COURT, THROUGHOUT THAT PORTION OF ITS OPINION DEALING WITH THE
VALIDITY OF GENERAL ELECTRIC'S CONSIGNMENT AGREEMENTS, GAVE NO
INTIMATION WHATSOEVER THAT ITS CONCLUSION WOULD HAVE DIFFERED IN ANY
RESPECT IF THE CONSIGNED ARTICLE HAD BEEN UNPATENTED.  QUITE THE
CONTRARY, THE GENERAL ELECTRIC COURT, ASSESSING THE VALIDITY OF THESE
AGREEMENTS, ADDRESSED ITSELF TO BUT ONE QUESTION:  "THE QUESTION IS
WHETHER, IN VIEW OF THE ARRANGEMENTS, MADE BY THE COMPANY WITH THOSE
WHO ORDINARILY AND USUALLY WOULD BE MERCHANTS BUYING FROM THE
MANUFACTURER AND SELLING TO THE PUBLIC, - SUCH PERSONS ARE TO BE
TREATED AS AGENTS, OR AS OWNERS OF THE LAMPS CONSIGNED TO THEM UNDER
SUCH CONTRACTS."  272 U.S., AT 483-484. 

TO ANSWER THAT QUESTION, THE COURT EXAMINED THE OPERATIVE PROVISIONS
OF THE CONSIGNMENT AGREEMENT TO DETERMINE WHETHER THE AGREEMENT CREATED
A VALID AGENCY OR WHETHER, IN FACT, TITLE EFFECTIVELY PASSED TO THE SO
CALLED CONSIGNEE.  ID., AT 483-488.  IF THE LATTER WERE THE CASE, THE
PRICE-FIXING REQUIREMENT WOULD HAVE MADE THE AGREEMENT NOTHING MORE
THAN A RESALE-PRICE-MAINTENANCE SCHEME, UNLAWFUL UNDER THE ANTITRUST
LAWS, CF. DR. MILES MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373,
REGARDLESS OF WHETHER OR NOT THE ARTICLE SOLD WAS PATENTED.  SIMILARLY,
IF THE AGREEMENT CREATED A BONA FIDE AGENCY, THE CONSIGNMENT WOULD BE
VALID UNDER THE ANTITRUST LAWS, AGAIN REGARDLESS OF WHETHER OR NOT THE
ARTICLE CONSIGNED WERE PATENTED.    POSSESSION OF PATENT RIGHTS ON THE
ARTICLE ALLEGEDLY CONSIGNED HAS NO LEGAL SIGNIFICANCE TO AN INQUIRY
DIRECTED TO ASCERTAINING WHETHER THE BURDENS, RISKS, AND RIGHTS OF
OWNERSHIP ACTUALLY REMAIN WITH THE PRINCIPAL OR HAVE PASSED TO HIS
AGENT.  NOR IS THE POWER OF A CONSIGNOR TO FIX THE PRICES AT WHICH HIS
CONSIGNEE SELLS AUGMENTED IN ANY RESPECT BY THE POSSESSION OF A PATENT
ON THE GOODS SO CONSIGNED.  IT IS NOT BY VIRTUE OF A PATENT MONOPOLY
THAT A BONA FIDE CONSIGNOR MAY CONTROL THE PRICE AT WHICH HIS CONSIGNEE
SELLS; HIS CONTROL OVER PRICE FLOWS FROM THE SIMPLE FACT THAT THE OWNER
OF GOODS, SO LONG AS HE REMAINS THE OWNER, HAS THE UNQUESTIONED RIGHT
TO DETERMINE THE PRICE AT WHICH HE WILL SELL THEM.  (FN2) 

IT IS CLEAR, THEREFORE, THAT THE COURT TODAY OVERRULES GENERAL
ELECTRIC.  IT DOES SO, EVEN THOUGH THE VALIDITY OF THAT DECISION WAS
NOT CHALLENGED IN THE BRIEFS OR IN ORAL ARGUMENT IN THIS CASE.  I
SHOULD HAVE THOUGHT THAT A DECISION OF SUCH IMPACT AND MAGNITUDE COULD
PROPERLY BE REACHED ONLY AFTER CAREFUL CONSIDERATION OF ALL RELEVANT
CONSIDERATIONS AND PREFERABLY BY A FULL COURT.  (FN3) TODAY'S UPSETTING
DECISION CARRIES WITH IT THE MOST SEVERE CONSEQUENCES TO A LARGER
COMMERCIAL ARRANGEMENTS THROUGHOUT OUR ECONOMY ARE SHAPED IN RELIANCE
UPON THIS COURT'S DECISIONS ELABORATING THE REACH OF THE ANTITRUST
LAWS.  EVERYONE KNOWS THAT CONSIGNMENT SELLING IS A WIDELY USED METHOD
OF DISTRIBUTION ALL OVER THE COUNTRY.  BY OUR DECISION TODAY OUTLAWING
CONSIGNMENT SELLING IF IT INCLUDES A PRICE LIMITATION, WE INJECT SEVERE
UNCERTAINTY INTO COMMERCIAL RELATIONSHIPS ESTABLISHED IN RELIANCE UPON
A DECISION OF THIS COURT EXPLICITLY VALIDATING THIS METHOD OF
DISTRIBUTION.  WE CREATE, AS WELL, THE DISTINCT POSSIBILITY THAT AN
UNTOLD NUMBER OF SELLERS OF GOODS WILL BE SUBJECTED TO LIABILITY IN
TREBLE DAMAGE SUITS BECAUSE THEY THOUGHT THEY COULD RELY ON THE
VALIDITY OF THIS COURT'S DECISIONS. 

IF THE RECORD NOW BEFORE US ACTUALLY REQUIRED RE-EXAMINATION OF THE
GENERAL ELECTRIC CASE, I THINK THAT IN VIEW OF THE SERIOUS
CONSIDERATIONS WHICH I HAVE MENTIONED WE SHOULD SET THIS CASE FOR
REARGUMENT AND INVITE THE JUSTICE DEPARTMENT TO EXPRESS ITS VIEWS. 
(FN4)  BUT THE FACT IS THAT IN THE PRESENT POSTURE OF THIS CASE, THIS
BROAD ISSUE NEED NOT BE DECIDED.  THE RECORD UPON WHICH THE DISTRICT
COURT ENTERED ITS SUMMARY JUDGMENT IS WHOLLY INADEQUATE TO SUPPORT A
REALISTIC ASSESSMENT OF THE ACTUAL NATURE AND EFFECT OF THE SO-CALLED
LEASE-AND-CONSIGNMENT AGREEMENT HERE INVOLVED.  AS THE COURT OF APPEALS
POINTED OUT, "THE RECORD IS NOT AN EASY ONE TO READ.  NO WRITTEN
PRETRIAL STIPULATION OF FACTS WAS ENTERED INTO NOR WAS ANY FORMAL
PRETRIAL ORDER MADE  ...  .  THE RESULT OF ALL THIS WAS TO CREATE A
MOST UNSATISFACTORY RECORD  ...  .  AS THE RECORD NOW STANDS, IT IS
ALMOST IMPOSSIBLE TO DETERMINE WHAT AGREEMENTS, IF ANY, WERE REACHED AT
PRETRIAL."  311 F.2D, AT 767. 

AFTER A TRIAL ON THE MERITS IT MAY BE DETERMINED THAT THE SCHEME HERE
INVOLVED, ALTHOUGH ON ITS FACE A BONA FIDE LEASE-AND-CONSIGNMENT
AGREEMENT, WAS IN ACTUAL OPERATION AND EFFECT A SYSTEM OF RESALE PRICE
MAINTENANCE.  (FN5)  OR THE DISTRICT COURT AFTER A TRIAL MIGHT FIND
THAT DESPITE THE FORMAL PROVISIONS OF THE LEASE-AND-CONSIGNMENT
AGREEMENT, THERE ACTUALLY EXISTED HERE SOME COERCIVE ARRANGEMENT
OTHERWISE VIOLATIVE OF THE ANTITRUST LAWS.  IN EITHER EVENT, THE
QUESTION OF THE PETITIONER'S DAMAGES WOULD THEN BECOME AN ISSUE TO BE
DETERMINED.  ONLY IF ALL THESE ISSUES, AND PERHAPS OTHERS, WERE
RESOLVED IN FAVOR OF THE RESPONDENT, WOULD THERE BE PRESENTED THE
QUESTION OF THE CONTINUING VALIDITY OF THE GENERAL ELECTRIC DOCTRINE. 
CONSEQUENTLY, RE-EXAMINATION OF THAT CASE SHOULD CERTAINLY AWAIT
ANOTHER DAY. 

I WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THIS
CASE TO THE DISTRICT COURT FOR A PLENARY TRIAL OF ALL THE ISSUES. 

FN1  WITHOUT COMMENTING ON THEIR SIGNIFICANCE, THE COURT DOES PURPORT
TO DISCOVER IN THE OPERATIVE PROVISIONS OF THE TWO AGREEMENTS FACTUAL
DIFFERENCES REGARDING THE TAX AND INSURANCE BURDENS ASSUMED BY THE
CONSIGNORS.  ON CLOSER EXAMINATION, HOWEVER, EVEN THESE PURPORTED
DIFFERENCES DISAPPEAR.  FROM THE RECORDS IN THE CASES, IT IS CLEAR THAT
BOTH COMPANIES ASSUMED THE SAME TAX BURDEN - PAYMENT OF PROPERTY TAXES
ON THE CONSIGNED GOODS.  AND SINCE BOTH COMPANIES BORE VIRTUALLY THE
SAME INSURABLE RISKS OF LOSS OR DAMAGE TO THE GOODS CONSIGNED, THE FACT
THAT GENERAL ELECTRIC APPARENTLY "CARRIED 'WHATEVER INSURANCE IS
CARRIED' ON THE STOCK HELD BY CONSIGNEES, WHILE UNION OIL APPARENTLY IS
NOT OBLIGATED TO CARRY ANY INSURANCE" IS NO DISTINCTION AT ALL. 

THE COURT IMPLIES THAT THE TERMS OF THIS AGREEMENT PROVIDING THAT THE
CONSIGNEE MUST CARRY PERSONAL LIABILITY AND PROPERTY DAMAGE INSURANCE;
THAT THE CONSIGNEE IS RESPONSIBLE FOR LOSSES OF CONSIGNED GASOLINE
INCURRED IN THE ORDINARY COURSE OF EVENTS; AND THAT THE CONSIGNEE MUST
PAY HIS OWN COSTS OF OPERATION, ARE INCONSISTENT WITH A VALID
CONSIGNMENT AGREEMENT.  BUT SUCH PROVISIONS ARE COMMON TO CONSIGNMENT
AGREEMENTS.  THEY MERELY ILLUSTRATE THE WELL-RECOGNIZED FACT THAT THESE
RETAIL GASOLINE DEALERS ARE BOTH INDEPENDENT BUSINESSMEN AND AGENTS.  A
CONSIGNEE IS COMMONLY DEFINED AS ONE WHO "IN THE PURSUIT OF AN
INDEPENDENT CALLING," IS ENGAGED BY ANOTHER AS HIS AGENT TO SELL
PROPERTY.  SEE, E.G., CALIF. CIVIL CODE SEC 2026.  CONSEQUENTLY, IT IS
NOT AT ALL SURPRISING FOR A CONSIGNMENT AGREEMENT TO PROVIDE BOTH THAT
A CONSIGNEE BEAR THE EXPENSES OF CONDUCTING HIS OWN BUSINESS, AND THAT
HE BE RESPONSIBLE FOR LOSS OR DAMAGE TO THE GOODS OCCURRING IN THE
ORDINARY COURSE OF BUSINESS.  THE COURT IN GENERAL ELECTRIC EXPLICITLY
FOUND SUCH PROVISIONS UNOBJECTIONABLE, 272 U.S., AT 484-485, AND
FURTHER OBSERVED THAT A PROVISION PLACING THE BURDEN OF RISK OF LOSS OR
DAMAGE TO GOODS ON THE CONSIGNEE "IS ONLY A REASONABLE PROVISION TO
SECURE THE CONSIGNEE'S CAREFUL HANDLING OF THE GOODS ENTRUSTED TO
HIM."  ID., AT 484.  NOR IS THE REQUIREMENT THAT SIMPSON CARRY PROPERTY
DAMAGE AND PERSONAL LIABILITY INSURANCE OF SIGNIFICANCE.  SUCH A
PROVISION SERVES THE REASONABLE PURPOSE OF PROTECTING THE CONSIGNOR
FROM RESPONSIBILITY (WHICH MIGHT BE IMPUTED BY VIRTUE OF THE AGENCY
RELATIONSHIP) FOR LIABILITIES INCURRED BY SIMPSON ARISING OUT OF OR IN
CONNECTION WITH SIMPSON'S BUSINESS. 

THE ONLY REMAINING POINT WHICH THE COURT MAKES IS THAT THE
CONSIGNEE'S COMMISSION DECLINES AS RETAIL PRICES DROP.  BUT IT IS IN
THE VERY NATURE OF COMMISSIONS THAT THEY BE GEARED TO PRICES, AND IT IS
THUS TYPICAL OF CONSIGNMENT AGREEMENTS THAT THE CONSIGNEE BEARS SOME OF
THE RISK OF PRICE DECLINES.  IN FACT, THE CONSIGNMENT AGREEMENT
CHALLENGED IN THE GENERAL ELECTRIC CASE PROVIDED THAT "THE AGENT IS
ALLOWED A COMPENSATION OF 10% OF THE LIST PRICES OF THE LAMPS  ...  ." 
SINCE THE GENERAL ELECTRIC COMPANY SET THE LIST PRICE, IT WOULD HAVE
BEEN AS CORRECT TO SAY IN THAT CASE, AS IT IS IN THIS ONE, THAT THE
CONSIGNEE'S COMMISSION DECLINED AS RETAIL PRICES DROPPED.  MOREOVER,
UNDER UNION'S AGREEMENT, SIMPSON RECEIVED A MINIMUM GUARANTEED
COMMISSION REGARDLESS OF THE EXTENT OF PRICE DECLINES, THEREBY
SUBSTANTIALLY RESTRICTING HIS EXPOSURE TO THE RISKS OF A DECLINE IN THE
MARKET PRICE. 

FN2  THE QUOTATIONS IN THE MAJORITY OPINION FROM THE GENERAL ELECTRIC
CASE RELATE TO A WHOLLY SEPARATE SECOND ISSUE INVOLVED IN THAT CASE -
THE VALIDITY OF A LICENSE GRANTED BY GENERAL ELECTRIC TO WESTINGHOUSE,
UNDER THE PATENTS OWNED BY THE FORMER, TO MANUFACTURE AND SELL LAMPS AT
PRICES FIXED BY THE PATENTEE-LICENSOR - AND HAVE NO RELEVANCE
WHATSOEVER TO THE ISSUE HERE.  SINCE THE SOURCE OF POWER OVER PRICE BY
THE PATENTEE-CONSIGNOR IN GENERAL ELECTRIC WAS NOT HIS PATENT, AND
SINCE THE QUESTION OF PATENT MONOPOLY IS NOT INVOLVED IN THIS CASE, THE
PATENT CASES CITED BY THE COURT ARE ALSO SINGULARLY IRRELEVANT TO THE
ISSUE HERE. 

FN3  THERE IS NO REASON TO SUPPOSE THAT MR. JUSTICE HARLAN WILL BE
DISQUALIFIED IN ANY FUTURE CASE WHICH MAY INVOLVE THE QUESTION OF THE
CONTINUING VALIDITY OF THE GENERAL ELECTRIC RULE. 

FN4  THE DEPARTMENT'S VIEWS ARE NOT KNOWN, BECAUSE THEY HAVE NOT BEEN
SOUGHT.  INDEED, HAD THEY BEEN SOUGHT, THERE IS A SUBSTANTIAL
POSSIBILITY IN LIGHT OF THE DEPARTMENT'S RECOGNITION AND TACIT
VALIDATION OF CONSIGNMENT SELLING UNDER THE 1959 CONSENT DECREE ENTERED
AGAINST THE LARGE WEST COAST OIL COMPANIES, UNITED STATES V. STANDARD
OIL CO. OF CALIFORNIA, 1959 TRADE CASES PARA 69,399, P. 75,522 ET SEQ.,
THAT THE GOVERNMENT WOULD HAVE TAKEN THE POSITION THAT THE RULE OF
GENERAL ELECTRIC SHOULD BE LEFT UNDISTURBED. 

FN5  IN THAT EVENT, THE EFFECT OF CALIFORNIA'S FAIR TRADE ACT, CAL.
BUS.  & PROF. CODE SEC 16900, WOULD HAVE TO BE CONSIDERED.  SEE 66
STAT. 631, 15 U.S.C. SEC 45 (MCGUIRE ACT). 

MEMORANDUM OF MR. JUSTICE BRENNAN AND MR. JUSTICE GOLDBERG. 

WE DO NOT NECESSARILY DISAGREE WITH THE COURT THAT "RESALE PRICE
MAINTENANCE THROUGH THE PRESENT, COERCIVE TYPE OF 'CONSIGNMENT'
AGREEMENT IS ILLEGAL UNDER THE ANTITRUST LAWS, AND THAT PETITIONER
SUFFERED ACTIONABLE WRONG OR DAMAGE."  WE THINK, HOWEVER, THAT THE
COURT SHOULD NOT DECIDE THAT QUESTION EITHER AS TO FACT OR LAW ON THE
RECORD UPON WHICH THIS SUMMARY JUDGMENT WAS ENTERED.  SINCE THE
DECISION MAY BE EXPECTED TO AFFECT CONSIGNMENT AGREEMENTS IN MANY
BUSINESSES, INCLUDING OUTSTANDING AGREEMENTS THAT MAY HAVE BEEN ENTERED
INTO IN RELIANCE UPON UNITED STATES V. GENERAL ELECTRIC, 272 U.S. 476,
THE COURT OUGHT NOT PRONOUNCE THAT JUDGMENT WITHOUT THE BENEFIT OF A
TRIAL OF THE QUESTION WHETHER THIS IS A "COERCIVE TYPE OF 'CONSIGNMENT'
AGREEMENT," AND WITHOUT AFFORDING INTERESTED PARTIES, INCLUDING THE
ANTITRUST DIVISION OF THE DEPARTMENT OF JUSTICE, AN OPPORTUNITY TO
EXPRESS THEIR VIEWS.  WE THEREFORE AGREE WITH MR. JUSTICE STEWART AND
WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THIS CASE
TO THE DISTRICT COURT FOR A PLENARY TRIAL OF ALL THE ISSUES. 
..END :



FEDERAL POWER COMMISSION V. TEXACO 377 U.S. 33 


NO. 386.  ARGUED MARCH 25, 1964.  - DECIDED APRIL 20, 1964.  - 317 F.2D
796, REVERSED. 


1.  A COURT OF APPEALS GRANTED REVIEW OF A FEDERAL POWER COMMISSION
(FPC) ORDER CONCERNING A CONTRACT PERFORMED IN ITS CIRCUIT INVOLVING
NATURAL GAS PRODUCED THERE BY TWO RESPONDENT NATURAL GAS COMPANIES
INCORPORATED OUTSIDE THE CIRCUIT, THE PRINCIPAL PLACE OF BUSINESS OF
ONE (A) BEING WITHIN THE CIRCUIT; THAT OF THE OTHER (B) BEING WITHOUT. 
RESPONDENTS PROCEEDED UNDER SEC 19(B) OF THE NATURAL GAS ACT, WHICH
PROVIDES FOR REVIEW IN THE COURT OF APPEALS WHEREIN THE AGGRIEVED
NATURAL GAS COMPANY "IS LOCATED OR HAS ITS PRINCIPAL PLACE OF
BUSINESS."  HELD: THE COURT OF APPEALS ERRED IN FAILING TO DISMISS THE
PETITION OF RESPONDENT B FOR LACK OF VENUE, SINCE THE TERM "IS LOCATED"
IN SEC 19(B) MEANS MORE THAN HAVING PHYSICAL PRESENCE IN A PLACE AND
REFERS IN THE CASE OF A CORPORATION TO THE STATE OF ITS INCORPORATION. 
PP. 37-39. 

2.  PURSUANT TO SEC 16 OF THE NATURAL GAS ACT AND SEC 4 OF THE
ADMINISTRATIVE PROCEDURE ACT, THE FPC AFTER A HEARING GIVEN TO
INTERESTED PARTIES, INCLUDING RESPONDENTS, AT WHICH THEY WERE ALLOWED
TO SUBMIT THEIR VIEWS IN WRITING, ISSUED REGULATIONS PROVIDING FOR THE
SUMMARY REJECTION OF CONTRACTS WITH PRICING PROVISIONS OTHER THAN THOSE
SPECIFIED IN THE REGULATIONS AS BEING "PERMISSIBLE."  UNDER SEC 7 OF
THE NATURAL GAS ACT, WHICH INCLUDES A PROVISION FOR AN FPC HEARING,
RESPONDENTS EACH SUBMITTED AN APPLICATION FOR A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY TO SUPPLY NATURAL GAS TO A PIPELINE.  SINCE
THE APPLICATIONS DISCLOSED PRICE CLAUSES IMPERMISSIBLE UNDER ITS
REGULATIONS, THE FPC REJECTED THE APPLICATIONS WITHOUT A HEARING.  ITS
ORDER ON REVIEW WAS SET ASIDE BY THE COURT OF APPEALS.  HELD: 

(A)  THE "HEARING" SATISFIED THE REQUIREMENTS OF SEC 4 OF THE
ADMINISTRATIVE PROCEDURE ACT.  P. 39. 

(B)  THE REQUIREMENT FOR A HEARING UNDER SEC 7 DOES NOT PRECLUDE THE
FPC FROM SPECIFYING STATUTORY STANDARDS THROUGH THE RULEMAKING PROCESS
AND BARRING AT THE OUTSET THOSE LIKE RESPONDENT A WHOSE APPLICATIONS
NEITHER MEET THOSE STANDARDS NOR SHOW WHY IN THE PUBLIC INTEREST THE
RULE SHOULD BE WAIVED.  UNITED STATES V. STORER BROADCASTING CO., 351
U.S. 192, FOLLOWED.  PP. 39-41. 

(C)  THE PRESENT REGULATIONS PASS ON THE MERITS NEITHER OF ANY RATE
STRUCTURE NOR OF A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY;
THEY MERELY PRESCRIBE QUALIFICATIONS FOR APPLICANTS.  P. 42. 

(D)  THE FPC NEED NOT PROCEED ON A CASE-BY-CASE BASIS WHERE ITS
POLICY OUTLAWS ALL INDEFINITE PRICE-CHANGING PROVISIONS.  P. 44. 

(E)  A PLENARY ADVERSARY-TYPE HEARING UNDER SEC 7 OF THE NATURAL GAS
ACT AND SEC 5 OF THE ADMINISTRATIVE PROCEDURE ACT WOULD HAVE BEEN
NECESSARY HAD THERE BEEN AN ADJUDICATION ON THE MERITS AS TO WHETHER
RESPONDENT A COULD QUALIFY FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY.  BUT THE ONLY DETERMINATION MADE - AFTER THE ADEQUATE RULE
MAKING HEARING UNDER SEC 4(B) OF THE ADMINISTRATIVE PROCEDURE ACT - WAS
NOT ONE ON THE MERITS BUT ONLY THAT RESPONDENT A'S APPLICATION WAS NOT
IN PROPER FORM BECAUSE OF THE IMPERMISSIBLE PRICE-CHANGING PROVISIONS
IN THE CONTRACT UPON WHICH THE APPLICATION DEPENDED.  PP. 44-45. 

FEDERAL POWER COMMISSION V. TEXACO INC. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL POWER COMMISSION IN ITS REGULATION OF INDEPENDENT
PRODUCERS  (FN1)  OF NATURAL GAS HAS REQUIRED THEM TO FILE THEIR
CONTRACTS AS RATE SCHEDULES.  THIS WAS DONE BY REGULATIONS WHICH
EVOLVED AS A RESULT OF A SERIES OF RULE-MAKING PROCEEDINGS.  (FN2)  THE
PERTINENT REGULATIONS PRESENTLY PROVIDE THAT ONLY CERTAIN PRICING
PROVISIONS IN THE CONTRACTS OF INDEPENDENT PRODUCERS ARE "PERMISSIBLE,"
(FN3)  ANY OTHER BEING "INOPERATIVE AND OF NO EFFECT AT LAW."  (FN4)
THE REGULATIONS GO ON TO SAY THAT ANY CONTRACT EXECUTED ON OR AFTER
APRIL 2, 1962, CONTAINING PRICE-CHANGING PROVISIONS OTHER THAN THE
"PERMISSIBLE" ONES, "SHALL BE REJECTED" SO FAR AS PRODUCER RATES ARE
CONCERNED,  (FN5)  THAT A PRODUCER'S APPLICATION FOR A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY UNDER SEC 7 OF THE NATURAL GAS ACT
"SHALL BE REJECTED" IF ANY CONTRACT SUBMITTED IN SUPPORT OF IT CONTAINS
ANY OF THE FORBIDDEN PROVISIONS,  (FN6)  AND THAT, SO FAR AS PIPELINE
CERTIFICATES ARE CONCERNED, ANY PRODUCER CONTRACT EXECUTED AFTER THAT
DATE WHICH HAS THAT INFIRMITY "WILL BE GIVEN NO CONSIDERATION IN
DETERMINING ADEQUACY" OF A PIPELINE COMPANY'S GAS SUPPLY.  (FN7) 

THESE REGULATIONS WERE ADOPTED PURSUANT TO THE PROVISIONS OF SEC 4 OF
THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 238, 5 U.S.C. SEC 1003. 
GENERAL NOTICE OF THE PROPOSED RULE MAKING WAS PUBLISHED IN THE FEDERAL
REGISTER AS REQUIRED BY SEC 4(A) OF THAT ACT.  THE COMMISSION ALSO GAVE
INTERESTED PARTIES A "HEARING" UNDER SEC 4(B).  (FN8)  NO ORAL ARGUMENT
WAS HAD BUT AN OPPORTUNITY WAS AFFORDED FOR ALL INTERESTED PARTIES TO
SUBMIT THEIR VIEWS IN WIRTING; AND THE TWO RESPONDENTS IN THIS CASE -
TEXACO AND PAN AMERICAN - ALONG WITH OTHERS, DID SO. 

LATER, EACH RESPONDENT SUBMITTED AN APPLICATION FOR A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY UNDER SEC 7 OF THE NATURAL GAS ACT, TO
SUPPLY NATURAL GAS TO A PIPELINE COMPANY.  SECTION 7 PROVIDES, WITH
EXCEPTIONS NOT PRESENTLY MATERIAL, THAT THE COMMISSION "SHALL SET" SUCH
AN APPLICATION "FOR HEARING."  SINCE, HOWEVER, THE APPLICATIONS
DISCLOSED PRICE CLAUSES THAT ARE NOT "PERMISSIBLE" UNDER THE
REGULATIONS,  (FN9)  THE COMMISSION WITHOUT A HEARING REJECTED THE
APPLICATIONS.  28 F.P.C. 551; 29 F.P.C. 378.  PETITIONS FOR REVIEW WERE
FILED WITH THE COURT OF APPEALS, WHICH SET ASIDE THE ORDERS OF THE
COMMISSION.  317 F.2D 796.  IT HELD THAT WHILE THE REGULATIONS ARE
VALID AS A STATEMENT OF COMMISSION POLICY, THEY CANNOT BE USED TO
DEPRIVE AN APPLICANT OF THE STATUTORY HEARING GRANTED THOSE WHO SEEK
CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY.  THE TWO CASES ARE
HERE IN ONE PETITION FOR CERTIORARI WHICH WE GRANTED BECAUSE OF AN
APPARENT CONFLICT BETWEEN THAT DECISION AND SUPERIOR OIL CO. V. FEDERAL
POWER COMM'N, 322 F.2D 601, DECIDED BY THE COURT OF APPEALS FOR THE
NINTH CIRCUIT.  375 U.S. 902. 

                                            I. 

A PRELIMINARY QUESTION, WHICH CONCERNS TEXACO INC., ALONE, IS WHETHER
VENUE TO REVIEW THESE ORDERS OF THE COMMISSION WAS PROPERLY IN THE
TENTH CIRCUIT.  THE GOVERNING PROVISION IS SEC 19(B) OF THE NATURAL GAS
ACT WHICH PROVIDES: 

"ANY PARTY TO A PROCEEDING UNDER THIS ACT AGGRIEVED BY AN ORDER
ISSUED BY THE COMMISSION IN SUCH PROCEEDING MAY OBTAIN A REVIEW OF SUCH
ORDER IN THE COURT OF APPEALS OF THE UNITED STATES FOR ANY CIRCUIT
WHEREIN THE NATURAL-GAS COMPANY TO WHICH THE ORDER RELATES IS LOCATED
OR HAS ITS PRINCIPAL PLACE OF BUSINESS, OR IN THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA  ...  ." 

THE TERM "IS LOCATED" WOULD HAVE AN AMBIVALENT MEANING IF VENUE LAY
ONLY IN "ANY CIRCUIT" WHERE THE NATURAL GAS COMPANY "IS LOCATED."  BUT
IN THE CONTEXT OF SEC 19(B) "ANY CIRCUIT" COVERS EITHER THE PLACE WHERE
THE COMPANY "IS LOCATED" OR WHERE IT "HAS ITS PRINCIPAL PLACE OF
BUSINESS."  HENCE THE MAIN ARGUMENT OF TEXACO DERIVES FROM THE FACT
THAT "IS LOCATED" WAS SUBSTITUTED FOR "RESIDES" IN AN EARLY DRAFT OF
THE BILL  (FN10)  WHICH LATER EMERGED AS THE FEDERAL POWER ACT, FROM
WHICH SEC 19(B) OF THE NATURAL GAS ACT IS DERIVED.  THE COURT OF
APPEALS FOUND THAT CHANGE DECISIVE; BUT WE CAN ONLY CONJECTURE AS TO
WHY IT WAS MADE, AS NO EXPLANATION APPEARS.  THE BILL IN WHICH
"RESIDES" WAS USED GAVE REVIEW TO "ANY PERSON AGGRIEVED" AND THE BILL
SUBSTITUTING "IS LOCATED" FOR "RESIDES" SUBSTITUTED "LICENSEE OR PUBLIC
UTILITY" FOR "PERSON AGGRIEVED."  SINCE THE LATTER LANGUAGE WAS CHANGED
FROM THE PERSONAL TO THE IMPERSONAL IT MAY BE, AS THE COMMISSION SAYS,
THAT THE CONGRESS WAS TRYING TO USE COMMON LEGAL PARLANCE THAT A
CORPORATION "CAN HAVE ITS LEGAL HOME ONLY AT THE PLACE WHERE IT IS
LOCATED BY OR UNDER THE AUTHORITY OF ITS CHARTER," AS STATED IN EX
PARTE SCHOLLENBERGER, 96 U.S. 369, 377.  AND SEE NEIRBO CO. V.
BETHLEHEM CORP., 308 U.S. 165, 169.  HOWEVER THAT MAY BE, WE THINK THAT
"IS LOCATED" MEANS MORE THAN HAVING PHYSICAL PRESENCE OR EXISTENCE IN A
PLACE, SINCE THE ALTERNATE VENUE REFERRED TO IN SEC 19(B) IS "PRINCIPAL
PLACE OF BUSINESS."  THE COURT OF APPEALS RECOGNIZED THE OVERLAP
BETWEEN THE TWO CLAUSES INHERENT IN ITS CONSTRUCTION BUT RESOLVED ITS
DOUBTS IN FAVOR OF TENTH CIRCUIT VENUE BECAUSE THE GAS SOLD BY TEXACO
UNDER THE CONTESTED CONTRACTS WAS PRODUCED IN THAT CIRCUIT AND THE
PERFORMANCE OF THE CONTRACT TOOK PLACE THERE. 

THE ACT WITH WHICH WE DEAL WAS ENACTED AUGUST 26, 1935.  AT THAT TIME
AND DOWN TO THE 1948 AMENDMENT OF SEC 1391 OF THE JUDICIAL CODE, 28
U.S.C. SEC 1391(C), THE ONLY RESIDENCE OF A CORPORATION FOR PURPOSES OF
FEDERAL VENUE WAS THE STATE AND DISTRICT IN WHICH IT HAD BEEN
INCORPORATED.  SEE 9 FLETCHER, CYCLOPEDIA CORPORATIONS (1931), SEC
4385.  THAT THEME RUNS THROUGH THE CASES.  SEE, E.G., SHAW V. QUINCY
MINING CO., 145 U.S. 444, 449-450.  WE CONCLUDE THAT, ALTHOUGH
"LOCATED" SOMETIMES IS USED AS INDICATING A PLACE OF BUSINESS
(MERCANTILE NAT. BANK V. LANGDEAU, 371 U.S. 555), IN THE SETTING OF
THIS ACT "IS LOCATED" AND "RESIDES" ARE EQUATED AND THAT "IS LOCATED"
REFERS IN THE CASE OF TEXACO TO ITS STATE OF INCORPORATION.  THERE IS
SYMMETRY IN THAT CONSTRUCTION AS THE CHOICE, SO FAR AS CIRCUITS ARE
CONCERNED, IS THEN LEFT BETWEEN THAT STATE, THE "PRINCIPAL PLACE OF
BUSINESS" (WITH NO PENUMBRA OF OTHER PLACES OF BUSINESS, AS HERE), OR
THE DISTRICT OF COLUMBIA WHERE THE COMMISSION SITS. 

TEXACO IS A DELAWARE CORPORATION AND THERE IS NO CLAIM THAT ITS
PRINCIPAL PLACE OF BUSINESS IS WITHIN THE TENTH CIRCUIT.  THE COURT OF
APPEALS THEREFORE ERRED IN FAILING TO DISMISS ITS PETITION FOR LACK OF
VENUE.  THERE IS, HOWEVER, ANOTHER RESPONDENT, PAN AMERICAN, WHOSE
PRINCIPAL PLACE OF BUSINESS IS WITHIN THE TENTH CIRCUIT.  WE THEREFORE
PROCEED TO THE MERITS OF ITS APPLICATION. 

                                         II. 

THE MAIN ISSUE IN THE CASE IS WHETHER THE "HEARING" GRANTED UNDER SEC
4(B) OF THE ADMINISTRATIVE PROCEDURE ACT IS ADEQUATE, SO FAR AS THE
PRICE CLAUSES ARE CONCERNED, FOR PURPOSES OF SEC 7 OF THE NATURAL GAS
ACT.  WE THINK THE COURT OF APPEALS ERRED, THAT THE PRESENT CASE IS
GOVERNED BY THE PRINCIPLE OF UNITED STATES V. STORER BROADCASTING CO.,
351 U.S. 192, AND THAT THE STATUTORY REQUIREMENT FOR A HEARING UNDER
SEC 7 DOES NOT PRECLUDE THE COMMISSION FROM PARTICULARIZING STATUTORY
STANDARDS THROUGH THE RULE-MAKING PROCESS AND BARRING AT THE THRESHOLD
THOSE WHO NEITHER MEASURE UP TO THEM NOR SHOW REASONS WHY IN THE PUBLIC
INTEREST THE RULE SHOULD BE WAIVED. 

IN STORER THE FEDERAL COMMUNICATIONS COMMISSION, PURSUANT TO ITS
GENERAL RULE-MAKING AUTHORITY, LIMITED PERMISSIBLE MULTIPLE OWNERSHIP
FOR RADIO AND TELEVISION STATIONS.  STORER, WHICH HAD SEVEN RADIO
STATIONS AND FIVE TELEVISION STATIONS, WAS UNDER THAT RULE
AUTOMATICALLY DISQUALIFIED FOR FURTHER LICENSING.  TO SURMOUNT THAT
BARRIER IT ARGUED THAT THE ACT REQUIRED A LICENSE TO ISSUE WHERE THE
PUBLIC INTEREST WOULD BE SERVED AND THAT BEFORE AN APPLICATION COULD BE
DENIED, A HEARING MUST BE HELD.  WE SAID: 

"WE READ THE ACT AND REGULATIONS AS PROVIDING A 'FULL HEARING' FOR
APPLICANTS WHO HAVE REACHED THE EXISTING LIMIT OF STATIONS, UPON THEIR
PRESENTATION OF APPLICATIONS CONFORMING TO RULES 1.361(C) AND 1.702,
THAT SET OUT ADEQUATE REASONS WHY THE RULES SHOULD BE WAIVED OR
AMENDED.  THE ACT, CONSIDERED AS A WHOLE, REQUIRES NO MORE.  WE AGREE
WITH THE CONTENTION OF THE COMMISSION THAT A FULL HEARING, SUCH AS IS
REQUIRED BY SEC 309(B)  ...  WOULD NOT BE NECESSARY ON ALL SUCH
APPLICATIONS.  AS THE COMMISSION HAS PROMULGATED ITS RULES AFTER
EXTENSIVE ADMINISTRATIVE HEARINGS, IT IS NECESSARY FOR THE ACCOMPANYING
PAPERS TO SET FORTH REASONS, SUFFICIENT IF TRUE, TO JUSTIFY A CHANGE OR
WAIVER OF THE RULES.  WE DO NOT THINK CONGRESS INTENDED THE COMMISSION
TO WASTE TIME ON APPLICATIONS THAT DO NOT STATE A VALID BASIS FOR A
HEARING.  IF ANY APPLICANT IS AGGRIEVED BY A REFUSAL, THE WAY FOR
REVIEW IS OPEN."  351 U.S., AT 205. 

IN THE PRESENT CASE, AS IN STORER, THERE IS A PROCEDURE PROVIDED IN
THE REGULATIONS WHEREBY AN APPLICANT CAN ASK FOR A WAIVER OF THE RULE
COMPLAINED OF.  (FN11)  FACTS MIGHT CONCEIVABLY BE ALLEGED SUFFICIENT
ON THEIR FACE TO PROVIDE A BASIS FOR WAIVER OF THE PRICE-CLAUSE RULES
AND FOR A HEARING ON THE MATTER.  CF. ATLANTIC REFINING CO., 28 F.P.C.
469; 29 F.P.C. 384.  BUT NO SUCH ATTEMPT WAS MADE HERE BY PAN AMERICAN,
THE ONLY RESPONDENT TO WHICH THE PRESENT POINT HAS ANY IMMEDIATE
APPLICABILITY. 

THE RULE-MAKING AUTHORITY HERE, AS IN STORER, IS AMPLE TO PROVIDE THE
CONDITIONS FOR APPLICATIONS UNDER SEC 4 OR SEC 7.  SECTION 16 OF THE
NATURAL GAS ACT GIVES THE COMMISSION POWER TO PRESCRIBE SUCH
REGULATIONS "AS IT MAY FIND NECESSARY OR APPROPRIATE TO CARRY OUT THE
PROVISIONS OF THIS ACT."  WE DEAL HERE WITH A PROCEDURAL ASPECT OF A
RATE QUESTION AND WITH A CERTIFICATE QUESTION THAT IS IMPORTANT IN
EFFECTUATING THE AIM OF THE ACT TO PROTECT THE CONSUMER INTEREST. 
FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591, 610.  IN A
RATE CASE UNDER SEC 5(A) OF THE ACT THE COMMISSION CAN PASS ON EXISTING
CONTRACTS AFFECTING RATES, CAN FIND THAT PARTICULAR CONTRACTS ARE
"UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR PREFERENTIAL" AND
THEREUPON HAS POWER TO DETERMINE THE "JUST AND REASONABLE" RATE OR
CONTRACT AND "FIX THE SAME."  AND SEE UNITED GAS PIPE LINE CO. V.
MOBILE GAS SERVICE CORP., 350 U.S. 332, 341.  AND WHERE, AS HERE,
APPLICATIONS FOR CERTIFICATES ARE MADE UNDER SEC 7 OF THE ACT, THE
COMMISSION UNDER SEC 7(E) IS REQUIRED TO CONTROL THE TERMS AND
CONDITIONS UNDER WHICH NATURAL GAS COMPANIES, SUCH AS RESPONDENT, MAY
INITIATE SALES AT WHOLESALE OF NATURAL GAS IN COMMERCE.  ATLANTIC
REFINING CO. V. PUBLIC SERVICE COMM'N, 360 U.S. 378, 389. 

PAN AMERICAN DOES NOT DISAGREE ON THAT SCORE; IT INSISTS THAT THOSE
CHANGES AND ADJUSTMENTS CAN BE MADE ONLY AFTER AN ADVERSARY HEARING. 
TO THAT THERE ARE TWO ANSWERS.  THE PRESENT REGULATIONS DO NOT PASS ON
THE MERITS OF ANY RATE STRUCTURE NOR ON THE MERITS OF A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY; THEY MERELY PRESCRIBE QUALIFICATIONS
FOR APPLICANTS.  THOSE QUALIFICATIONS ARE IN THE CATEGORY OF CONDITIONS
THAT RELATE TO THE ABILITY OF APPLICANTS TO SERVE THE CONSUMER INTEREST
IN THIS REGULATED FIELD.  THEY ARE KIN TO THE KIND OF CAPITAL STRUCTURE
THAT AN APPLICANT HAS AND TO HIS ABILITY BY REASON OF THE RATE
STRUCTURE TO SERVE THE PUBLIC INTEREST.  IT MUST BE REMEMBERED THAT
UNDER THIS ACT RATE INCREASES ARE INITIATED BY THE NATURAL GAS COMPANY,
THE COMMISSION HAVING THE BURDEN BY REASON OF SEC 4(E) OF THE ACT TO
INITIATE A HEARING ON THEIR LEGALITY WITH ONLY A LIMITED POWER TO
SUSPEND NEW RATES.  SEE UNITED GAS PIPE LINE CO. V. MOBILE GAS SERVICE
CORP., SUPRA.  NATURAL GAS COMPANIES THAT SEEK TO ENTER THE FIELD WITH
PREARRANGED ESCALATOR CLAUSES AND THE LIKE HAVE A BUILT-IN DEVICE FOR
READY MANIPULATION OF RATES UPWARD.  PROTECTION OF THE CONSUMER
INTERESTS AGAINST THAT DEVICE MAY BE BEST ACHIEVED IF IT IS GIVEN AT
THE VERY THRESHOLD OF THE ENTERPRISE.  AT LEAST THE COMMISSION MAY SO
CONCLUDE; (FN12)  AND THE LEGISLATIVE HISTORY MAKES CLEAR THAT ITS
AUTHORITY REACHES THAT FAR.  H.R. REP. NO. 1290, 77TH CONG., 1ST SESS.,
PP. 2-3, STATES: 

"  ...  THE BILL WHEN ENACTED WILL HAVE THE EFFECT OF GIVING THE
COMMISSION AN OPPORTUNITY TO SCRUTINIZE THE FINANCIAL SET-UP, THE
ADEQUACY OF THE GAS RESERVES, THE FEASIBILITY AND ADEQUACY OF THE
PROPOSED SERVICES, AND THE CHARACTERISTICS OF THE RATE STRUCTURE IN
CONNECTION WITH THE PROPOSED CONSTRUCTION OR EXTENSION AT A TIME WHEN
SUCH VITAL MATTERS CAN READILY BE MODIFIED AS THE PUBLIC INTEREST MAY
DEMAND  ...  ." 

AND SEE S. REP. NO. 948, 77TH CONG., 2D SESS., PP. 1-2. 

TO REQUIRE THE COMMISSION TO PROCEED ONLY ON A CASE-BY-CASE BASIS
WOULD REQUIRE IT, SO LONG AS ITS POLICY OUTLAWED INDEFINITE PRICE
CHANGING PROVISIONS, TO REPEAT IN HEARING AFTER HEARING ITS CONCLUSIONS
THAT CONDEMN ALL OF THEM.  THERE WOULD BE A VAST PROLIFERATION OF
HEARINGS, FOR AS A RESULT OF PHILLIPS PETROLEUM CO. V. WISCONSIN, 347
U.S. 672, THERE ARE THOUSANDS OF INDIVIDUAL PRODUCERS SEEKING
APPLICATIONS.  SEE WISCONSIN V. FEDERAL POWER COMM'N, 373 U.S. 294,
300.  WE SEE NO REASON WHY UNDER THIS STATUTORY SCHEME THE PROCESSES OF
REGULATION NEED BE SO PROLONGED (FN13) AND SO CRIPPLED.    PAN AMERICAN
FINALLY ARGUES THAT THE "HEARING" ACCORDED IT UNDER SEC 4(B) OF THE
ADMINISTRATIVE PROCEDURE ACT  (FN14)  DID NOT COMPLY WITH THAT ACT NOR
WITH THE NATURAL GAS ACT.  IT POINTS OUT THAT SEC 7 OF THE NATURAL GAS
ACT REQUIRES A HEARING AND THAT SEC 5 OF THE ADMINISTRATIVE PROCEDURE
ACT PROVIDES, WITH EXCEPTIONS NOT RELEVANT HERE, THAT A FULL-FLEDGED
ADVERSARY-TYPE OF HEARING BE HELD IN "EVERY CASE OF ADJUDICATION
REQUIRED BY STATUTE TO BE DETERMINED ON THE RECORD AFTER OPPORTUNITY
FOR AN AGENCY HEARING  ...  ."  "ADJUDICATION" IS DEFINED IN SEC 2(D)
OF THE ADMINISTRATIVE PROCEDURE ACT AS "AGENCY PROCESS FOR THE
FORMULATION OF AN ORDER"; "ORDER" IS DEFINED AS "THE WHOLE OR ANY PART
OF THE FINAL DISPOSITION  ...  OF ANY AGENCY IN ANY MATTER OTHER THAN
RULE MAKING BUT INCLUDING LICENSING."  AND "LICENSING" IS DEFINED AS
"AGENCY PROCESS RESPECTING THE  ... DENIAL  ...  OF A LICENSE."  SEC
2(E).  WHAT THE COMMISSION DID IN THESE CASES, HOWEVER, IS NOT AN
"ADJUDICATION," NOT "AN ORDER," NOT "LICENSING" WITHIN THE MEANING OF
SEC 2.  WHETHER PAN AMERICAN CAN QUALIFY FOR A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY HAS NEVER BEEN REACHED.  IT HAS ONLY BEEN
HELD THAT ITS APPLICATION IS NOT IN PROPER FORM BECAUSE OF THE PRICING
PROVISIONS IN THE CONTRACTS IT TENDERS.  NO DECISIONS ON THE MERITS
HAVE BEEN REACHED.  THE ONLY HEARING TO WHICH PAN AMERICAN SO FAR HAS
BEEN ENTITLED WAS GIVEN WHEN THE REGULATIONS IN QUESTION WERE ADOPTED
PURSUANT TO SEC 4(B) OF THE ADMINISTRATIVE PROCEDURE ACT.  REVERSED. 

FN1  SEE NATURAL GAS ACT, 52 STAT. 821-833, AS AMENDED, 15 U.S.C.
SECS 717-717W; PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672. 

FN2  SEE ORDER NO. 174-B, 13 F.P.C. 1576, 18 CFR SEC 157.25; ORDER
NO. 232, 25 F.P.C.  379, 26 FED. REG. 1983, AS AMENDED BY ORDER NO.
232A, 25 F.P.C. 609, 26 FED. REG. 2850; ORDER NO. 242, 27 F.P.C. 339,
27 FED. REG. 1356; REG. SEC 154.91 ET SEQ., AS AMENDED, 18 CFR (CUM.
SUPP. 1963) SEC 154.91 ET SEQ. 

FN3  SECTION 154.93 DEFINES THE "PERMISSIBLE" PROVISIONS: 

"(A)  PROVISIONS THAT CHANGE A PRICE IN ORDER TO REIMBURSE THE SELLER
FOR ALL OR ANY PART OF THE CHANGES IN PRODUCTION, SEVERANCE, OR
GATHERING TAXES LEVIED UPON THE SELLER: 

"(B)  PROVISIONS THAT CHANGE A PRICE TO A SPECIFIC AMOUNT AT A
DEFINITE DATE; AND: 

"(C)  PROVISIONS THAT, ONCE IN FIVE-YEAR CONTRACT PERIODS DURING
WHICH THERE IS NO PROVISION FOR A CHANGE IN PRICE TO A SPECIFIC AMOUNT
(PARAGRAPH (B) OF THIS SECTION), CHANGE A PRICE AT A DEFINITE DATE BY A
PRICE-REDETERMINATION BASED UPON AND NOT HIGHER THAN A PRODUCER RATE OR
PRODUCER RATES WHICH ARE SUBJECT TO THE JURISDICTION OF THE COMMISSION,
ARE NOT IN ISSUE IN SUSPENSION OR CERTIFICATE PROCEEDINGS, AND, ARE IN
THE AREA OF THE PRICE IN QUESTION  ...  ." 

FN4  IBID.  FOR A DISCUSSION OF ESCALATION CLAUSES SEE PURE OIL CO.,
25 F.P.C. 383, AFF'D 299 F.2D 370. 

FN5  IBID. 

FN6  SEC 157.25. 

FN7  SEC 157.14(A)(10)(V). 

FN8  SECTION 4(B) PROVIDES: 

"AFTER NOTICE REQUIRED BY THIS SECTION, THE AGENCY SHALL AFFORD
INTERESTED PERSONS AN OPPORTUNITY TO PARTICIPATE IN THE RULE MAKING
THROUGH SUBMISSION OF WRITTEN DATA, VIEWS, OR ARGUMENTS WITH OR WITHOUT
OPPORTUNITY TO PRESENT THE SAME ORALLY IN ANY MANNER; AND, AFTER
CONSIDERATION OF ALL RELEVANT MATTER PRESENTED, THE AGENCY SHALL
INCORPORATE IN ANY RULES ADOPTED A CONCISE GENERAL STATEMENT OF THEIR
BASIS AND PURPOSE.  WHERE RULES ARE REQUIRED BY STATUTE TO BE MADE ON
THE RECORD AFTER OPPORTUNITY FOR AN AGENCY HEARING, THE REQUIREMENTS OF
SUBSECTION." 

FN9  PAN AMERICAN'S CONTRACTS PROVIDE (1) FOR A ONE-CENT ESCALATION
IN 1968, 1973, AND 1978, AND (2) FOR A REDETERMINATION OF A "FAIR
MARKET PRICE" IN EACH FIVE-YEAR PERIOD COMMENCING OCTOBER 1, 1983, BUT
IN NO EVENT FOR LESS THAN 20.5 CENTS PER THOUSAND CUBIC FEET. 

TEXACO'S CONTRACT CONTAINED PRICE CLAUSES TO BECOME EFFECTIVE AT
DEFINITE TIMES OR UPON THE HAPPENING OF DEFINITE CIRCUMSTANCES IN THE
FUTURE, E.G., THE PASSAGE OF 5, 10, OR 15 YEARS, INCREASED TAXATION ON
THE PRODUCTION, SEVERANCE, GATHERING, TRANSPORTATION, SALE, OR DELIVERY
OF GAS OR AS A RESULT OF RENEGOTIATIONS UNDERTAKEN SIX MONTHS PRIOR TO
THE BEGINNING OF THE THIRD (1974) AND FOURTH (1979) OF THE FOUR FIVE
YEAR PERIODS INTO WHICH THE CONTRACT TERM WAS DIVIDED. 

FN10  SEE SEC 313(B) OF THE FEDERAL POWER ACT, 49 STAT. 860, 16
U.S.C. SEC 825LB); CF. S. 1725, 74TH CONG., 1ST SESS., WITH S. 2796 OF
THE SAME SESSION. 

FN11  REGULATION SEC 1.7(B), 18 CFR (CUM. SUPP. 1963) SEC 1.7(B),
PROVIDES IN RELEVANT PART: 

"A PETITION FOR THE ISSUANCE, AMENDMENT, WAIVER, OR REPEAL OF A RULE
BY THE COMMISSION SHALL SET FORTH CLEARLY AND CONCISELY PETITIONER'S
INTEREST IN THE SUBJECT MATTER, THE SPECIFIC RULE, AMENDMENT, WAIVER,
OR REPEAL REQUESTED, AND CITE BY APPROPRIATE REFERENCE THE STATUTORY
PROVISION OR OTHER AUTHORITY THEREFOR.  IF A RATE FILING IS ACCOMPANIED
BY A REQUEST FOR WAIVER PURSUANT TO THIS SECTION THE THIRTY-DAY NOTICE
PERIOD PROVIDED IN SECTION 4(D) OF THE NATURAL GAS ACT AND SECTION
205(D) OF THE FEDERAL POWER ACT SHALL BEGIN TO RUN IF AND WHEN THE
COMMISSION GRANTS THE REQUEST.  SUCH PETITION SHALL SET FORTH THE
PURPOSE OF, AND THE FACTS CLAIMED TO CONSTITUTE THE GROUNDS REQUIRING,
SUCH RULE, AMENDMENT, WAIVER, OR REPEAL, AND SHALL CONFORM TO THE
REQUIREMENTS OF SECS 1.15 AND 1.16.  PETITIONS FOR THE ISSUANCE OR
AMENDMENT OF A RULE SHALL INCORPORATE THE PROPOSED RULE OR AMENDMENT." 

FN12  THE COMMISSION IN MAKING THE LAST AMENDMENT TO THE REGULATION
NOW CHALLENGED SAID: 

"PROTECTION OF THE PUBLIC INTEREST IS THE TOUCHSTONE OF OUR
REGULATORY POWERS UNDER THE NATURAL GAS ACT.  THE COMMISSION'S
OBLIGATION UNDER THE ACT TO THE NATURAL GAS COMPANIES, AS ONE SEGMENT
OF THE PUBLIC WHOSE INTEREST IS TO BE PROTECTED, DOES NOT COMPEL IT TO
ACQUIESCE IN THE USE OF CONTRACTS WHICH CARRY PROVISIONS INCOMPATIBLE
WITH A SCHEME OF EFFECTIVE RATE REGULATION.  TO BE SURE, THE PROPOSED
RULE WILL HAVE IMPACT UPON CONTRACTUAL PRACTICES WHICH HAVE BEEN FAIRLY
WIDESPREAD.  BUT THE REAL ISSUE IS NOT ONE OF 'FREEDOM OF CONTRACT';
THE QUESTION IS WHETHER THE RULE IS RATIONALLY RELATED TO A CONDITION
WHICH REQUIRES CORRECTION IF REGULATORY OBJECTIVES EMBRACED BY THE
STATUTE ARE TO BE ACHIEVED.  SEE AMERICAN TRUCKING ASSOCIATIONS V.
UNITED STATES, 344 U.S. 298.  IN OUR VIEW, THE RULE WE ADOPT FULLY
MEETS THIS TEST. 

"WE HELD IN THE PURE OIL CASE (SEE NOTE 4, SUPRA) THAT INDEFINITE
ESCALATION CLAUSES ARE CONTRARY TO THE PUBLIC INTEREST AND RESTATED
THIS CONCLUSION IN ORDER NO. 232A.  INCREASES IN PRODUCER PRICES,
TRIGGERED BY INDEFINITE ESCALATION CLAUSES, HAVE RESULTED IN A FLOOD OF
ALMOST SIMULTANEOUS FILINGS.  THESE FILINGS BEAR NO APPARENT
RELATIONSHIP TO THE ECONOMIC REQUIREMENTS OF THE PRODUCERS WHO FILE
THEM.  THE NATURAL GAS ACT CONTEMPLATES THAT PRICES, TO BE JUST AND
REASONABLE, BE RELATED TO ECONOMIC NEEDS.  THE ELIMINATION OF
INDEFINITE ESCALATION PROVISIONS DOES NOT, OF COURSE, CUT OFF OTHER
AVENUES BY WHICH A PRODUCER MAY MAKE PROVISION FOR FILING FOR INCREASED
RATES. 

"FILINGS UNDER INDEFINITE ESCALATION CLAUSES HAVE CREATED A
SIGNIFICANT PORTION OF THE ADMINISTRATIVE BURDENS UNDER WHICH THIS
COMMISSION IS LABORING TODAY.  THE NATURAL GAS ACT CONTEMPLATES THAT
RATE INCREASES SHALL BE SOUGHT WHEN THERE IS ECONOMIC JUSTIFICATION,
BUT NOT THAT THERE SHALL BE A CHAIN REACTION IN A WIDE AREA WHENEVER
ONE PRODUCER IN THE AREA NEGOTIATES A CONTRACT AT A NEW PRICE LEVEL. 
THE ACT REQUIRES THE COMMISSION TO GIVE PRECEDENCE TO THE HEARING AND
DECISION OF RATE INCREASES, BUT THE COMPLEXITY OF INDEFINITE PRICE
CLAUSES REQUIRES IT TO SPEND AN UNDUE AMOUNT OF TIME IN THEIR
INTERPRETATION AND APPLICATION AT THE EXPENSE OF MAKING A PROMPT
DETERMINATION OF THE RATE ISSUES INVOLVED.  ACCORDINGLY, IN PROTECTING
THE PUBLIC AGAINST WAVES OF INCREASES WHICH HAVE NO DEFENSIBLE BASIS,
WE ALSO SERVE THE NEED - WHICH WE BELIEVE WE SHOULD TAKE INTO ACCOUNT -
OF MAKING THE TASKS OF REGULATION MORE MANAGEABLE."  27 F.P.C. 339,
340, 27 FED. REG. 1356, 1357. 

FN13  IN ONE RECENT CASE SEVEN YEARS ELAPSED BETWEEN THE DATE OF THE
NEW RATE FILING AND THE CLOSE OF THE REVIEW PROCEEDINGS.  SHELL OIL
CO., 18 F.P.C. 617, 19 F.P.C. 74, SET ASIDE SUB NOM. SHELL OIL CO. V.
FEDERAL POWER COMM'N, 263 F.2D 223, REV'D SUB NOM. TEXAS GAS
TRANSMISSION CORP. V. SHELL OIL CO., 363 U.S. 263; ON REMAND, AFF'D SUB
NOM. SHELL OIL CO. V. FEDERAL POWER COMM'N, 292 F.2D 149, CERT. DENIED,
368 U.S. 915. 

FN14  SEE NOTE 8, SUPRA. 

MR. JUSTICE STEWART, DISSENTING IN PART. 

I AGREE WITH PART I OF THE COURT'S OPINION, HOLDING THAT THE PETITION
OF TEXACO INC. SHOULD HAVE BEEN DISMISSED FOR LACK OF VENUE.  I CANNOT
AGREE, HOWEVER, THAT A GAS PRODUCER'S APPLICATION FOR A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY CAN BE REJECTED WITHOUT THE FULL
ADJUDICATIVE HEARING TO WHICH SEC 7 OF THE ACT ENTITLES HIM.  MY
REASONS ARE SUBSTANTIALLY THOSE EXPRESSED IN JUDGE BREITENSTEIN'S
OPINION FOR THE COURT OF APPEALS.  317 F.2D 796, 804-807. 
..END :

















NATIONAL LABOR RELATIONS BOARD V. SERVETTE 377 U.S. 46 


NO. 111.  ARGUED FEBRUARY 19, 1964.  - DECIDED APRIL 20, 1964.  - 310
F.2D 659, REVERSED. 


IN SUPPORT OF A STRIKE AGAINST RESPONDENT, WHICH IS A WHOLESALE
DISTRIBUTOR OF FOOD PRODUCTS, THE UNION ASKED SUPERMARKET CHAIN STORE
MANAGERS TO REFRAIN FROM SELLING ANY GOODS SUPPLIED BY RESPONDENT.  IT
WARNED THAT HANDBILLS ASKING THE PUBLIC NOT TO PURCHASE THOSE GOODS
WOULD BE DISTRIBUTED AT NONCOOPERATING STORES, AND HANDBILLS WERE IN
FACT DISTRIBUTED AT SOME STORES.  A COMPLAINT CHARGING THAT THE UNION'S
CONDUCT VIOLATED SECS 8(B)(4)(I) AND (II) OF THE NATIONAL LABOR
RELATIONS ACT WAS DISMISSED BY THE NATIONAL LABOR RELATIONS BOARD.  THE
BOARD HELD THAT THE APPEAL TO SUPERMARKET MANAGERS DID NOT FALL WITHIN
SUBSECTION (I), WHICH MAKES IT AN UNFAIR LABOR PRACTICE FOR A UNION TO
INDUCE "ANY INDIVIDUAL EMPLOYED BY ANY PERSON" TO REFUSE TO PERFORM
SERVICES WITH AN OBJECT OF FORCING HIS EMPLOYER TO CEASE DOING BUSINESS
WITH ANOTHER.  IT ALSO HELD THAT THE HANDBILLING WAS PROTECTED BY THE
PROVISO TO SEC 8(B)(4) WHICH EXEMPTS TRUTHFUL PUBLICITY, OTHER THAN
PICKETING, TO ADVISE THE PUBLIC THAT AN EMPLOYER IS DISTRIBUTING
PRODUCTS "PRODUCED" BY AN EMPLOYER WITH WHOM THE UNION HAS A PRIMARY
DISPUTE.  THE COURT OF APPEALS SET ASIDE THE BOARD ORDER, HOLDING THAT
"INDIVIDUAL" IN SEC 8(B)(4)(I) INCLUDES THE MARKET MANAGERS, AND THAT
THE "PUBLICITY" PROVISO WAS INAPPLICABLE SINCE RESPONDENT IS A
DISTRIBUTOR, NOT A PRODUCER.  HELD: 

1.  IT IS NOT AN UNFAIR PRACTICE FOR THE UNION TO REQUEST SUPERMARKET
MANAGERS NOT TO HANDLE PRODUCTS OF THE DISTRIBUTOR AGAINST WHOM THE
UNION IS STRIKING.  THOUGH STORE MANAGERS COME WITHIN THE TERM
"INDIVIDUAL" IN SEC 8(B)(4)(I), THAT PROVISION IS INAPPLICABLE HERE
SINCE THEY WERE REQUESTED TO MAKE DECISIONS WITHIN THEIR MANAGERIAL
AUTHORITY RATHER THAN TO CEASE PERFORMING DUTIES TO FORCE THEIR
EMPLOYERS TO STOP DEALING WITH RESPONDENT.  PP. 49-54. 

2.  THE UNION'S DISTRIBUTION OF HANDBILLS WAS PROTECTED BY THE
"PUBLICITY" PROVISO IN SEC 8(B)(4).   PRODUCTS "PRODUCED" BY AN
EMPLOYER INCLUDE PRODUCTS DISTRIBUTED BY A WHOLESALER WITH WHOM THE
PRIMARY DISPUTE EXISTS.  PP. 54-56. 

3.  WARNINGS THAT HANDBILLS WOULD BE DISTRIBUTED AT NONCOOPERATING
STORES ARE NOT "THREATS" PROHIBITED BY SEC 8(B)(4)(II).  P. 57. 

NATIONAL LABOR RELATIONS BOARD V. SERVETTE, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT SERVETTE, INC., IS A WHOLESALE DISTRIBUTOR OF SPECIALTY
MERCHANDISE STOCKED BY RETAIL FOOD CHAINS IN LOS ANGELES, CALIFORNIA. 
(FN1)  IN 1960, DURING A STRIKE WHICH LOCAL 848 OF THE WHOLESALE
DELIVERY DRIVERS AND SALESMEN'S UNION WAS CONDUCTING AGAINST SERVETTE,
THE LOCAL'S REPRESENTATIVES SOUGHT TO SUPPORT THE STRIKE BY ASKING
MANAGERS OF SUPERMARKETS OF THE FOOD CHAINS TO DISCONTINUE HANDLING
MERCHANDISE SUPPLIED BY SERVETTE.  IN MOST INSTANCES THE
REPRESENTATIVES WARNED THAT HANDBILLS ASKING THE PUBLIC NOT TO BUY
NAMED ITEMS DISTRIBUTED BY SERVETTE WOULD BE PASSED OUT IN FRONT OF
STORES WHICH REFUSED TO COOPERATE, AND IN A FEW CASES HANDBILLS WERE IN
FACT PASSED OUT.  (FN2)  A COMPLAINT WAS ISSUED ON CHARGES BY SERVETTE
THAT THIS CONDUCT VIOLATED SUBSECTIONS (I) AND (II) OF SEC 8(B)(4) OF
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, (FN3) WHICH, IN RELEVANT
PART, PROVIDE THAT IT IS AN UNFAIR LABOR PRACTICE FOR A UNION: 

"(I)  ...  TO INDUCE OR ENCOURAGE ANY INDIVIDUAL EMPLOYED BY ANY
PERSON  ...  TO ENGAGE IN  ... REFUSAL IN THE COURSE OF HIS EMPLOYMENT
TO  ...  HANDLE  ...  COMMODITIES OR TO PERFORM ANY SERVICES; OR": 

"(II)  TO THREATEN, COERCE, OR RESTRAIN ANY PERSON  ...  WHERE IN
EITHER CASE AN OBJECT THEREOF IS: 

     *         *         *         *         * 

"(B)  FORCING OR REQUIRING ANY PERSON TO CEASE  ...  DEALING IN THE
PRODUCTS OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE
DOING BUSINESS WITH ANY OTHER PERSON  ...  : 

*        *         *         *         * 

PROVIDED FURTHER, THAT FOR THE PURPOSE OF THIS PARAGRAPH (4) ONLY,
NOTHING CONTAINED IN SUCH PARAGRAPH SHALL BE CONSTRUED TO PROHIBIT
PUBLICITY, OTHER THAN PICKETING, FOR THE PURPOSE OF TRUTHFULLY ADVISING
THE PUBLIC  ...  THAT A PRODUCT OR PRODUCTS ARE PRODUCED BY AN EMPLOYER
WITH WHOM THE LABOR ORGANIZATION HAS A PRIMARY DISPUTE AND ARE
DISTRIBUTED BY ANOTHER EMPLOYER  ...  ." 

THE NATIONAL LABOR RELATIONS BOARD DISMISSED THE COMPLAINT.  THE
BOARD ADOPTED THE FINDING OF THE TRIAL EXAMINER THAT "THE MANAGERS OF
MCDANIELS MARKETS WERE AUTHORIZED TO DECIDE AS THEY BEST COULD WHETHER
TO CONTINUE DOING BUSINESS WITH SERVETTE IN THE FACE OF THREATENED OR
ACTUAL HANDBILLING.  THIS, A POLICY DECISION, WAS ONE FOR THEM TO
MAKE.  THE EVIDENCE IS PERSUASIVE THAT THE SAME AUTHORITY WAS VESTED IN
THE MANAGERS OF KORY."  133 N.L.R.B. 1506.  THE BOARD HELD THAT ON
THESE FACTS THE LOCAL'S EFFORTS TO ENLIST THE COOPERATION OF THE
SUPERMARKET MANAGERS DID NOT CONSTITUTE INDUCEMENT OF AN "INDIVIDUAL"
WITHIN THE MEANING OF THAT TERM IN SUBSECTION (I); THE BOARD HELD
FURTHER THAT THE HANDBILLING, EVEN IF CONSTITUTING CONDUCT WHICH
"THREATENS, COERCES, OR RESTRAINS ANY PERSON" UNDER SUBSECTION (II),
WAS PROTECTED BY THE QUOTED PROVISO TO AMENDED SEC 8(B)(4).  133
N.L.R.B. 1501.  THE COURT OF APPEALS SET ASIDE THE BOARD'S ORDER,
HOLDING THAT THE TERM "INDIVIDUAL" IN SUBSECTION (I) WAS TO BE READ
LITERALLY, THUS INCLUDING THE SUPERMARKET MANAGERS, AND THAT THE
DISTRIBUTED PRODUCTS WERE NOT "PRODUCED" BY SERVETTE WITHIN THE MEANING
OF THE PROVISO, THUS RENDERING ITS PROTECTION UNAVAILABLE.  310 F.2D
659.  WE GRANTED CERTIORARI, 374 U.S. 805.  WE REVERSE THE JUDGMENT OF
THE COURT OF APPEALS. 

THE COURT OF APPEALS CORRECTLY READ THE TERM "INDIVIDUAL" IN
SUBSECTION (I) AS INCLUDING THE SUPERMARKET MANAGERS,  (FN4)  BUT IT
ERRED IN HOLDING THAT THE LOCAL'S ATTEMPTS TO ENLIST THE AID OF THE
MANAGERS CONSTITUTED INDUCEMENT OF THE MANAGERS IN VIOLATION OF THE
SUBSECTION.  THE 1959 STATUTE AMENDED SEC 8(B)(4)(A) OF THE NATIONAL
LABOR RELATIONS ACT,  (FN5)  WHICH MADE IT UNLAWFUL TO INDUCE OR
ENCOURAGE "THE EMPLOYEES OF ANY EMPLOYER" TO STRIKE OR ENGAGE IN A
"CONCERTED" REFUSAL TO WORK.  WE DEFINED THE CENTRAL THRUST OF THAT
STATUTE TO BE TO FORBID "A UNION TO INDUCE EMPLOYEES TO STRIKE AGAINST
OR TO REFUSE TO HANDLE GOODS FOR THEIR EMPLOYER WHEN AN OBJECT IS TO
FORCE HIM OR ANOTHER PERSON TO CEASE DOING BUSINESS WITH SOME THIRD
PARTY."  LOCAL 1976, CARPENTERS' UNION V. LABOR BOARD, 357 U.S. 93,
98.  IN THE INSTANT CASE, HOWEVER, THE LOCAL, IN ASKING THE MANAGERS
NOT TO HANDLE SERVETTE ITEMS, WAS NOT ATTEMPTING TO INDUCE OR ENCOURAGE
THEM TO CEASE PERFORMING THEIR MANAGERIAL DUTIES IN ORDER TO FORCE
THEIR EMPLOYERS TO CEASE DOING BUSINESS WITH SERVETTE.  RATHER, THE
MANAGERS WERE ASKED TO MAKE A MANAGERIAL DECISION WHICH THE BOARD FOUND
WAS WITHIN THEIR AUTHORITY TO MAKE.  SUCH AN APPEAL WOULD NOT HAVE BEEN
A VIOLATION OF SEC 8(B)(4)(A) BEFORE 1959, AND WE THINK THAT THE
LEGISLATIVE HISTORY OF THE 1959 AMENDMENTS MAKES IT CLEAR THAT THE
AMENDMENTS WERE NOT MEANT TO RENDER SUCH AN APPEAL AN UNFAIR LABOR
PRACTICE. 

THE 1959 AMENDMENTS WERE DESIGNED TO CLOSE CERTAIN LOOPHOLES IN THE
APPLICATION OF SEC 8(B)(4)(A) WHICH HAD BEEN EXPOSED IN BOARD AND COURT
DECISIONS.  THUS, IT HAD BEEN HELD THAT THE TERM "THE EMPLOYEES OF ANY
EMPLOYER" LIMITED THE APPLICATION OF THE STATUTE TO THOSE WITHIN THE
STATUTORY DEFINITIONS OF "EMPLOYEES" AND "EMPLOYER."  SECTION 2(2) OF
THE NATIONAL LABOR RELATIONS ACT DEFINES "EMPLOYER" TO EXCLUDE THE
FEDERAL AND STATE GOVERNMENTS AND THEIR AGENCIES OR SUBDIVISIONS,
NONPROFIT HOSPITALS, AND EMPLOYERS SUBJECT TO THE RAILWAY LABOR ACT. 
29 U.S.C. SEC 152(2).  THE DEFINITION OF "EMPLOYEE" IN SEC 2(3)
EXCLUDES AGRICULTURAL LABORERS, SUPERVISORS, AND EMPLOYEES OF AN
EMPLOYER SUBJECT TO THE RAILWAY LABOR ACT.  (FN6)  29 U.S.C. SEC
152(3).  FURTHERMORE, SINCE THE SECTION PROSCRIBED ONLY INDUCEMENT TO
ENGAGE IN A STRIKE OR "CONCERTED" REFUSAL TO PERFORM SERVICES, IT HAD
BEEN HELD THAT IT WAS VIOLATED ONLY IF THE INDUCEMENT WAS DIRECTED AT
TWO OR MORE EMPLOYEES.  (FN7)  TO CLOSE THESE LOOPHOLES, SUBSECTION (I)
SUBSTITUTED THE PHRASE "ANY INDIVIDUAL EMPLOYED BY ANY PERSON" FOR "THE
EMPLOYEES OF ANY EMPLOYER," AND DELETED THE WORD "CONCERTED."  THE
FIRST CHANGE WAS DESIGNED TO MAKE THE PROVISION APPLICABLE TO REFUSALS
BY EMPLOYEES WHO WERE NOT TECHNICALLY "EMPLOYEES" WITHIN THE STATUTORY
DEFINITIONS, AND THE SECOND CHANGE WAS INTENDED TO MAKE CLEAR THAT
INDUCEMENT DIRECTED TO ONLY ONE INDIVIDUAL WAS PROSCRIBED.  (FN8)  BUT
THESE CHANGES DID NOT EXPAND THE TYPE OF CONDUCT WHICH SEC 8(B)(4)(A)
CONDEMNED, THAT IS, UNION PRESSURES CALCULATED TO INDUCE THE EMPLOYEES
OF A SECONDARY EMPLOYER TO WITHHOLD THEIR SERVICES IN ORDER TO FORCE
THEIR EMPLOYER TO CEASE DEALING WITH THE PRIMARY EMPLOYER.  (FN9) 

MOREOVER, THE DIVISION OF SEC 8(B)(4) INTO SUBSECTIONS (I) AND (II)
BY THE 1959 AMENDMENTS HAS DIRECT RELEVANCE TO THE ISSUE PRESENTED BY
THIS CASE.  IT HAD BEEN HELD THAT SEC 8(B)(4)(A) DID NOT REACH THREATS
OF LABOR TROUBLE MADE TO THE SECONDARY EMPLOYER HIMSELF.  (FN10)
CONGRESS DECIDED THAT SUCH CONDUCT SHOULD BE MADE UNLAWFUL, BUT ONLY
WHEN IT AMOUNTED TO CONDUCT WHICH "THREATENS, COERCES OR RESTRAINS ANY
PERSON"; HENCE THE ADDITION OF SUBSECTION (II).  THE CAREFUL CREATION
OF SEPARATE STANDARDS DIFFERENTIATING THE TREATMENT OF APPEALS TO THE
EMPLOYEES OF THE SECONDARY EMPLOYER NOT TO PERFORM THEIR EMPLOYMENT
SERVICES, FROM APPEALS FOR OTHER ENDS WHICH ARE ATTENDED BY THREATS,
COERCION OR RESTRAINT, ARGUES CONCLUSIVELY AGAINST THE INTERPRETATION
OF SUBSECTION (I) AS REACHING THE LOCAL'S APPEALS TO THE SUPERMARKET
MANAGERS IN THIS CASE.  (FN11)  IF SUBSECTION (I), IN ADDITION TO
PROHIBITING INDUCEMENT OF EMPLOYEES TO WITHHOLD EMPLOYMENT SERVICES,
ALSO REACHES AN APPEAL THAT THE MANAGERS EXERCISE THEIR DELEGATED
AUTHORITY BY MAKING A BUSINESS JUDGMENT TO CEASE DEALING WITH THE
PRIMARY EMPLOYER, SUBSECTION (II) WOULD BE ALMOST SUPERFLUOUS.  HARMONY
BETWEEN (I) AND (II) IS BEST ACHIEVED BY CONSTRUING SUBSECTION (I) TO
PROHIBIT INDUCEMENT OF THE MANAGERS TO WITHHOLD THEIR SERVICES FROM
THEIR EMPLOYER, AND SUBSECTION (II) TO CONDEMN AN ATTEMPT TO INDUCE THE
EXERCISE OF DISCRETION ONLY IF THE INDUCEMENT WOULD "THREATEN, COERCE,
OR RESTRAIN" THAT EXERCISE.  (FN12) 

WE TURN FINALLY TO THE QUESTION WHETHER THE PROVISO TO AMENDED SEC
8(B)(4) PROTECTED THE LOCAL'S HANDBILLING.  THE COURT OF APPEALS,
FOLLOWING ITS DECISION IN GREAT WESTERN BROADCASTING CORP. V. LABOR
BOARD, 310 F.2D 591 (C.A. 9TH CIR.), HELD THAT THE PROVISO DID NOT
PROTECT THE LOCAL'S CONDUCT BECAUSE, AS A DISTRIBUTOR, SERVETTE WAS NOT
DIRECTLY INVOLVED IN THE PHYSICAL PROCESS OF CREATING THE PRODUCTS, AND
THUS "DOES NOT PRODUCE ANY PRODUCTS."  THE BOARD ON THE OTHER HAND
FOLLOWED ITS RULING IN LOHMAN SALES CO., 132 N.L.R.B. 901, THAT
PRODUCTS "PRODUCED BY AN EMPLOYER" INCLUDED PRODUCTS DISTRIBUTED, AS
HERE, BY A WHOLESALER WITH WHOM THE PRIMARY DISPUTE EXISTS.  WE AGREE
WITH THE BOARD.  THE PROVISO WAS THE OUTGROWTH OF A PROFOUND SENATE
CONCERN THAT THE UNIONS' FREEDOM TO APPEAL TO THE PUBLIC FOR SUPPORT OF
THEIR CASE BE ADEQUATELY SAFEGUARDED.  WE ELABORATED THE HISTORY OF THE
PROVISO IN LABOR BOARD V. FRUIT & VEGETABLE PACKERS, LOCAL 760, POST,
P. 58, DECIDED TODAY.  IT WOULD FALL FAR SHORT OF ACHIEVING THIS BASIC
PURPOSE IF THE PROVISO APPLIED ONLY IN SITUATIONS WHERE THE UNION'S
LABOR DISPUTE IS WITH THE MANUFACTURER OR PROCESSOR.  MOREOVER, A
PRIMARY TARGET OF THE 1959 AMENDMENTS WAS THE SECONDARY BOYCOTTS
CONDUCTED BY THE TEAMSTERS UNION, WHICH ORDINARILY REPRESENTS EMPLOYEES
NOT OF MANUFACTURERS, BUT OF MOTOR CARRIERS.  (FN13)  THERE IS NOTHING
IN THE LEGISLATIVE HISTORY WHICH SUGGESTS THAT THE PROTECTION OF THE
PROVISO WAS INTENDED TO BE ANY NARROWER IN COVERAGE THAN THE
PROHIBITION TO WHICH IT IS AN EXCEPTION, AND WE SEE NO BASIS FOR
ATTRIBUTING SUCH AN INCONGRUOUS PURPOSE TO CONGRESS. 

THE TERM "PRODUCED" IN OTHER LABOR LAWS WAS NOT UNFAMILIAR TO
CONGRESS.  UNDER THE FAIR LABOR STANDARDS ACT, THE TERM IS DEFINED AS
"PRODUCED, MANUFACTURED, MINED, HANDLED, OR IN ANY OTHER MANNER WORKED
ON  ... ," 29 U.S.C. SEC 203(J), AND HAS ALWAYS BEEN HELD TO APPLY TO
THE WHOLESALE DISTRIBUTION OF GOODS.  (FN14)  THE TERM "PRODUCTION" IN
THE WAR LABOR DISPUTES ACT HAS BEEN SIMILARLY APPLIED TO A GENERAL
RETAIL DEPARTMENT AND MAILORDER BUSINESS.  (FN15)  THE COURT OF
APPEALS' RESTRICTIVE READING OF "PRODUCER" WAS PROMPTED IN PART BY THE
LANGUAGE OF SEC 8(B)(4)(B), WHICH NAMES AS A PROSCRIBED OBJECT OF THE
CONDUCT DEFINED IN SUBSECTIONS (I) AND (II) "FORCING OR REQUIRING ANY
PERSON TO CEASE  ...  DEALING IN THE PRODUCTS OF ANY OTHER PRODUCER,
PROCESSOR, OR MANUFACTURER."  IN ITS DECISION IN GREAT WESTERN
BROADCASTING CORP. V. LABOR BOARD, SUPRA, THE COURT OF APPEALS REASONED
THAT SINCE A "PROCESSOR" AND A "MANUFACTURER" ARE ENGAGED IN THE
PHYSICAL CREATION OF GOODS, THE WORD "PRODUCER" MUST BE READ AS LIMITED
TO ONE WHO PERFORMS SIMILAR FUNCTIONS.  ON THE CONTRARY, WE THINK THAT
"PRODUCER" MUST BE GIVEN A BROADER REACH, ELSE IT IS RENDERED VIRTUALLY
SUPERFLUOUS. 

FINALLY, THE WARNINGS THAT HANDBILLS WOULD BE DISTRIBUTED IN FRONT OF
NONCOOPERATING STORES ARE NOT PROHIBITED AS "THREATS" WITHIN SUBSECTION
(II).  THE STATUTORY PROTECTION FOR THE DISTRIBUTION OF HANDBILLS WOULD
BE UNDERMINED IF A THREAT TO ENGAGE IN PROTECTED CONDUCT WERE NOT
ITSELF PROTECTED.  REVERSED. 

FN1  THE SUPERMARKET CHAINS PRINCIPALLY INVOLVED WERE KORY'S MARKETS,
INC., AND MCDANIELS MARKETS.   THE TESTIMONY MENTIONED ONLY ONE OTHER
CHAIN, DAYLIGHT MARKETS, ONE OF WHOSE STORE MANAGERS MADE AN UNSWORN
STATEMENT THAT HE WAS INTERVIEWED ON ONE OCCASION, AND THAT ALTHOUGH HE
REFUSED TO COOPERATE, THE LOCAL DID NOT HANDBILL AT HIS STORE. 
SERVETTE'S PRODUCTS ARE PRIMARILY CANDY, LIQUOR, HOLIDAY SUPPLIES, AND
SPECIALTY ARTICLES. 

FN2  THE HANDBILL WAS AS FOLLOWS:

                               "TO THE PATRONS OF THIS STORE 

"WHOLESALE DELIVERY DRIVERS & SALESMEN'S LOCAL NO. 848 URGENTLY
REQUESTS THAT YOU DO NOT BUY THE FOLLOWING PRODUCTS DISTRIBUTED BY
SERVETTE, INC.: 

"BRACH'S CANDY: 

"SERVETTE CANDY: 

"GOOD SEASON SALAD DRESSING: 

"OLD LONDON PRODUCTS: 

"THE SERVETTE COMPANY WHICH DISTRIBUTES THESE PRODUCTS REFUSES TO
NEGOTIATE WITH THE UNION THAT REPRESENTS ITS DRIVERS.  THE COMPANY IS
ATTEMPTING TO FORCE THE DRIVERS TO SIGN INDIVIDUAL 'YELLOW DOG'
CONTRACTS. 

"THESE CONTRACTS WILL DESTROY THE WAGES AND WORKING CONDITIONS THAT
THE DRIVERS NOW ENJOY, AND WILL SET THEM BACK 20 YEARS IN THEIR
STRUGGLE FOR DECENT WAGES AND WORKING CONDITIONS. 

"THE DRIVERS OF SERVETTE APPRECIATE YOUR COOPERATION IN THIS FIGHT." 

FN3  AS AMENDED BY THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT
OF 1959 (LANDRUM-GRIFFIN ACT) SEC 704(A), 73 STAT. 542-543, 29 U.S.C.
(SUPP. IV, 1963) SEC 158(B)(4). 

FN4  THE BOARD REACHED A CONTRARY CONCLUSION ON THE AUTHORITY OF ITS
DECISION IN CAROLINA LUMBER CO., 130 N.L.R.B. 1438, 1443, WHICH VIEWED
THE STATUTE AS DISTINGUISHING "LOW LEVEL" SUPERVISORS FROM "HIGH LEVEL"
SUPERVISORS, HOLDING THAT INDUCEMENT OF "LOW LEVEL" SUPERVISORS IS
IMPERMISSIBLE BUT INDUCEMENT OF "HIGH LEVEL" SUPERVISORS IS PERMITTED. 
WE HOLD TODAY THAT THIS IS NOT THE DISTINCTION DRAWN BY THE STATUTE;
RATHER, THE QUESTION OF THE APPLICABILITY OF SUBSECTION (I) TURNS UPON
WHETHER THE UNION'S APPEAL IS TO CEASE PERFORMING EMPLOYMENT SERVICES,
OR IS AN APPEAL FOR THE EXERCISE OF MANAGERIAL DISCRETION.    FN5
29 U.S.C.  SEC 158(B)(4), READ AS FOLLOWS: 

"SEC. 8(B).  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION OR ITS AGENTS: 

     *         *         *      *         * 

"(4) TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS: (A) FORCING OR
REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR
EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON." 

FN6  IN VIEW OF THESE DEFINITIONS, IT WAS PERMISSIBLE FOR A UNION TO
INDUCE WORK STOPPAGES BY MINOR SUPERVISORS, AND FARM, RAILWAY OR PUBLIC
EMPLOYEES.  SEE FERRO-CO CORP., 102 N.L.R.B.  1660 (SUPERVISORS);
ARKANSAS EXPRESS, INC., 92 N.L.R.B. 255 (SUPERVISORS); CONWAY'S
EXPRESS, 87 N.L.R.B. 972, 980, AFF'D, 195 F.2D 906, 911 (C.A.2D
CIR.)(SUPERVISORS); GREAT NORTHERN R. CO., 122 N.L.R.B. 1403,
ENFORCEMENT DENIED, 272 F.2D 741 (C.A. 9TH CIR.), AND SUPPLEMENTAL
BOARD DECISION, 126 N.L.R. B. 57 (RAILROAD EMPLOYEES); SMITH LUMBER
CO., 116 N.L.R.B. 1756, ENFORCEMENT DENIED, 246 F.2D 129, 132 (C.A. 5TH
CIR.)(RAILROAD EMPLOYEES); PAPER MAKERS IMPORTING CO., INC., 116
N.L.R.B. 267 (MUNICIPAL EMPLOYEES).  COMPARE DI GIORGIO FRUIT CORP., 87
N.L.R.B. 720, 721, ENFORCED, 89 U.S. APP. D.C. 155, 191 F.2D 642, CERT.
DENIED, 342 U.S. 869 (AGRICULTURAL LABOR ORGANIZATION). 

FN7  SEE JOLIET CONTRACTORS ASSN. V. LABOR BOARD, 202 F.2D 606, 612
(C.A. 7TH CIR.), CERT. DENIED, 346 U.S. 824; CF. LABOR BOARD V.
INTERNATIONAL RICE MILLING CO., 341 U.S. 665, 671. 

FN8  THE CHANGES MADE IN SEC 8(B)(4)(A) BY SUBSECTION (I) FIRST
APPEARED IN THE ADMINISTRATION BILL, WHICH WAS INTRODUCED BY SENATOR
GOLDWATER.  SEE SEC 503(A) OF S. 748, I LEGISLATIVE HISTORY OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 142.  THE
SECRETARY OF LABOR TESTIFIED THAT THE CHANGE WOULD CURE THE SITUATION
WHEREBY UNIONS COULD "AVOID THE EXISTING PROVISIONS BY INDUCING
INDIVIDUAL EMPLOYEES, OR WORKERS NOT DEFINED AS EMPLOYEES BY THE ACT
SUCH AS RAILROAD AND AGRICULTURAL WORKERS - TO REFUSE TO HANDLE THE
PRODUCTS OF THE PERSON WITH WHOM THEY WANT THE EMPLOYER TO CEASE DOING
BUSINESS."  HEARINGS BEFORE THE SENATE SUBCOMMITTEE ON LABOR AND PUBLIC
WELFARE ON S. 505, ETC., 86TH CONG., 1ST SESS., P. 265.  THE LANDRUM
GRIFFIN BILL INTRODUCED IN THE HOUSE CONTAINED A SUBSECTION (I) SIMILAR
TO THAT OF THE ADMINISTRATION BILL.  SECTION 705(A) OF H.R. 8400, I
LEG.  HIST.  680.  AN ANALYSIS SUBMITTED BY ITS SPONSORS EXPLAINED THE
PURPOSE OF THE AMENDMENT AS HAD THE SECRETARY OF LABOR, AND ADDED THAT
THE OMISSION OF THE WORD "CONCERTED" WAS TO PREVENT THE UNIONS FROM
INDUCING EMPLOYEES ONE AT A TIME TO ENGAGE IN SECONDARY BOYCOTTS.  105
CONG. REC. 14347, II LEG.  HIST.  1522-1523.  SEE ALSO 105 CONG. REC.
15531-15532 (CONGRESSMAN GRIFFIN), II LEG.  HIST. 1568. 

FN9  THUS, THE FOLLOWING COLLOQUY OCCURRED BETWEEN SECRETARY OF LABOR
MITCHELL AND SENATOR KENNEDY WITH RESPECT TO THE PROVISION OF THE
ADMINISTRATION BILL ANALOGOUS TO SEC 8(B)(4)(II): 

"SENATOR KENNEDY.  MR. SECRETARY: 

"I WOULD LIKE TO ASK YOU A QUESTION REGARDING SECTION 503(A) OF YOUR
BILL:  THERE IS A MANUFACTURER OF CLOTHING 'A.'  HE BEGINS TO PURCHASE
THE PRODUCTS OF A PLANT WHICH IS UNDER THE DOMINATION OF RACKETEERS
...  .  WOULD IT BE A VIOLATION OF SECTION 503 OF YOUR BILL IF THE
BUSINESS AGENT OF THE CLOTHING WORKERS UNION AT COMPANY A SPOKE TO THE
PLANT MANAGER AND REQUESTED HIM NOT TO ORDER MATERIALS - NONUNION
MATERIALS - FROM THE RACKETEER PLANT IN PENNSYLVANIA? 

"SECRETARY MITCHELL.  WE DON'T THINK IT WOULD BE, SENATOR. 

"SENATOR KENNEDY.  NOW, SUPPOSING THE PLANT IN PENNSYLVANIA WAS A
NONUNION PLANT, WOULD IT BE A VIOLATION UNDER YOUR BILL FOR UNION
LEADERS IN ANOTHER COMPANY TO GO TO HIS PLANT MANAGER AND ASK HIM NOT
TO BUY GOODS FROM THE NONUNION PLANT? 

"SECRETARY MITCHELL.  REQUEST HIM NOT TO BUY?  NO. 

"SENATOR KENNEDY.  NOW, IF THE REPRESENTATIVE OF THE UNION AT PLANT A
TOLD THE MANUFACTURER THAT THE MEMBERS OF THE UNION WOULD NOT CONTINUE
TO WORK ON GOODS WHICH WERE SECURED FROM THE RACKETEER'S SHOP? 

"SECRETARY MITCHELL.  IN THAT CASE, IT IS MY INTERPRETATION OF OUR
PROPOSAL THAT THAT WOULD BE COERCION.  AND OUR PROPOSAL PROHIBITS
COERCION FOR THE PURPOSE OF BRINGING PRESSURE ON AN EMPLOYER NOT TO BUY
MERCHANDISE FROM A NEUTRAL THIRD PARTY."  HEARINGS BEFORE THE SENATE
SUBCOMMITTEE ON LABOR AND PUBLIC WELFARE ON S. 505, ETC., 86TH CONG.,
1ST SESS., PP. 304-305. 

FN10  SEE SEALRIGHT PACIFIC, LTD., 82 N.L.R.B. 271, 272, N. 4;
RABOUIN V. LABOR BOARD, 195 F.2D 906, 911-912 (C.A.2D CIR.); LABOR
BOARD V. INTERNATIONAL UNION OF BREWERY WORKERS, 272 F.2D 817, 819
(C.A. 10TH CIR.). 

FN11  ACCORD, LABOR BOARD V. LOCAL 294, TEAMSTERS, 298 F.2D 105
(C.A.2D CIR.); AND SEE ALPERT V. LOCAL 379, TEAMSTERS, 184 F. SUPP. 558
(D.C.D. MASS.). 

FN12  THE CONFERENCE COMMITTEE IN ADOPTING SUBSECTION (II) UNDERSTOOD
THAT THE SUBSECTION WOULD REACH ONLY THREATS, RESTRAINTS OR COERCION OF
THE SECONDARY EMPLOYER AND NOT A MERE REQUEST TO HIM FOR VOLUNTARY
COOPERATION.  SENATOR DIRKSEN, ONE OF THE CONFEREES, STATED THAT THE
NEW AMENDMENT "MAKES IT AN UNFAIR LABOR PRACTICE FOR A UNION TO TRY TO
COERCE OR THREATEN AN EMPLOYER DIRECTLY (BUT NOT TO PERSUADE OR ASK
HIM) IN ORDER -  ...  TO GET HIM TO STOP DOING BUSINESS WITH ANOTHER
FIRM OR HANDLING ITS GOODS."  105 CONG. REC. 19849, II LEG.  HIST. 
1823. 

FN13  SEE, E.G., 105 CONG. REC. 1730, II LEG.  HIST.  993-994; 105
CONG. REC. 6105, II LEG.  HIST. 1028; 105 CONG. REC. 6669, II LEG. 
HIST.  1196; 105 CONG. REC. 3926-3927, II LEG.  HIST.  1469-1470; 105
CONG. REC. 15544, II LEG.  HIST.  1580. 

FN14  SEE, E.G., MITCHELL V. PIDCOCK, 299 F.2D 281 (C.A. 5TH CIR.);
MCCOMB V. WYANDOTTE FURNITURE CO., 169 F.2D 766 (C.A. 8TH CIR.); MCCOMB
V. BLUE STAR AUTO STORES, 164 F. D 329 (C.A. 7TH CIR.); WALLING V.
FRIEND, 156 F.2D 429 (C.A. 8TH CIR.); WALLING V. MUTUAL WHOLESALE FOOD
CO., 141 F.2D 331, 340 (C.A. 8TH CIR.). 

FN15  UNITED STATES V. MONTGOMERY WARD & CO., 150 F.2D 369 (C.A. 7TH
CIR.). 

WE ATTACH NO SIGNIFICANCE TO THE FACT THAT ANOTHER VERSION OF THE
PROVISO READ: 

"PROVIDED, THAT NOTHING CONTAINED IN THIS SUBSECTION (B) SHALL BE
CONSTRUED  ...  TO PROHIBIT PUBLICITY FOR THE PURPOSE OF TRUTHFULLY
ADVISING THE PUBLIC (INCLUDING CONSUMERS) THAT AN ESTABLISHMENT IS
OPERATED, OR GOODS ARE PRODUCED OR DISTRIBUTED, BY AN EMPLOYER ENGAGED
IN A LABOR DISPUTE  ...  ."  105 CONG. REC. 17333, II LEG.  HIST. 
1383. 

THIS VERSION WAS IN A REQUEST BY THE SENATE CONFEREES FOR
INSTRUCTIONS BUT WAS NOT MADE THE SUBJECT OF DEBATE OR VOTE BECAUSE
SENATE AND HOUSE CONFEREES REACHED AGREEMENT ON THE PROVISO. 
..END :











NATIONAL LABOR RELATIONS BOARD V. FRUIT & VEGETABLE PACKERS &
WAREHOUSEMEN, LOCAL 760 377 U.S. 58 


NO. 88.  ARGUED FEBRUARY 18-19, 1964.  - DECIDED APRIL 20, 1964.  - 113
U.S. APP. D.C. 356, 308 F.2D 311, JUDGMENT VACATED AND CASE REMANDED. 


RESPONDENT UNION, WHILE ON STRIKE, CONDUCTED A CONSUMER BOYCOTT OF THE
EMPLOYERS' PRODUCTS, PURSUANT TO WHICH IT ENGAGED IN PEACEFUL PICKETING
AND DISTRIBUTED HANDBILLS AT MARKETS SELLING SUCH PRODUCTS.  THE SIGNS
AND HANDBILLS ASKED THE PUBLIC NOT TO PURCHASE PRIMARY EMPLOYERS'
PRODUCTS.  THE NATIONAL LABOR RELATIONS BOARD HELD THAT SEC 8(B)(4) OF
THE NATIONAL LABOR RELATIONS ACT WAS INTENDED BY CONGRESS TO PROHIBIT
ALL CONSUMER PICKETING AT SECONDARY ESTABLISHMENTS.  THE COURT OF
APPEALS REJECTED THAT CONCLUSION, HOLDING THAT THE CRUCIAL ISSUE IS
WHETHER THE SECONDARY EMPLOYER IS IN FACT COERCED OR THREATENED BY THE
PICKETING, AND REMANDED FOR A FINDING ON THAT ISSUE.  HELD: PEACEFUL
SECONDARY PICKETING OF RETAIL STORES DIRECTED SOLELY AT APPEALING TO
CONSUMERS TO REFRAIN FROM BUYING THE PRIMARY EMPLOYER'S PRODUCT IS NOT
PROHIBITED BY SEC 8(B)(4).  PP. 63-73. 

NATIONAL LABOR RELATIONS BOARD V. FRUIT & VEGETABLE PACKERS &
WAREHOUSEMEN, LOCAL 760, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

UNDER SEC 8(B)(4)(II)(B) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED,  (FN1)  IT IS AN UNFAIR LABOR PRACTICE FOR A UNION "TO
THREATEN, COERCE, OR RESTRAIN ANY PERSON," WITH THE OBJECT OF "FORCING
OR REQUIRING ANY PERSON TO CEASE USING, SELLING, HANDLING,
TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY OTHER
PRODUCER  ...  OR TO CEASE DOING BUSINESS WITH ANY OTHER PERSON  ...
."  A PROVISO EXCEPTS, HOWEVER, "PUBLICITY, OTHER THAN PICKETING, FOR
THE PURPOSE OF TRUTHFULLY ADVISING THE PUBLIC  ...  THAT A PRODUCT OR
PRODUCTS ARE PRODUCED BY AN EMPLOYER WITH WHOM THE LABOR ORGANIZATION
HAS A PRIMARY DISPUTE AND ARE DISTRIBUTED BY ANOTHER EMPLOYER, AS LONG
AS SUCH PUBLICITY DOES NOT HAVE AN EFFECT OF INDUCING ANY INDIVIDUAL
EMPLOYED BY ANY PERSON OTHER THAN THE PRIMARY EMPLOYER IN THE COURSE OF
HIS EMPLOYMENT TO REFUSE TO PICK UP, DELIVER, OR TRANSPORT ANY GOODS,
OR NOT TO PERFORM ANY SERVICES, AT THE ESTABLISHMENT OF THE EMPLOYER
ENGAGED IN SUCH DISTRIBUTION."  THE QUESTION IN THIS CASE IS WHETHER
THE RESPONDENT UNIONS VIOLATED THIS SECTION WHEN THEY LIMITED THEIR
SECONDARY PICKETING OF RETAIL STORES TO AN APPEAL TO THE CUSTOMERS OF
THE STORES NOT TO BUY THE PRODUCTS OF CERTAIN FIRMS AGAINST WHICH ONE
OF THE RESPONDENTS WAS ON STRIKE. 

RESPONDENT LOCAL 760 CALLED A STRIKE AGAINST FRUIT PACKERS AND
WAREHOUSEMEN DOING BUSINESS IN YAKIMA, WASHINGTON.  (FN2)  THE STRUCK
FIRMS SOLD WASHINGTON STATE APPLES TO THE SAFEWAY CHAIN OF RETAIL
STORES IN AND ABOUT SEATTLE, WASHINGTON.  LOCAL 760, AIDED BY
RESPONDENT JOINT COUNCIL, INSTITUTED A CONSUMER BOYCOTT AGAINST THE
APPLES IN SUPPORT OF THE STRIKE.  THEY PLACED PICKETS WHO WALKED BACK
AND FORTH BEFORE THE CUSTOMERS' ENTRANCES OF 46 SAFEWAY STORES IN
SEATTLE.  THE PICKETS - TWO AT EACH OF THE 45 STORES AND THREE AT THE
46TH STORE - WORE PLACARDS AND DISTRIBUTED HANDBILLS WHICH APPEALED TO
SAFEWAY CUSTOMERS, AND TO THE PUBLIC GENERALLY, TO REFRAIN FROM BUYING
WASHINGTON STATE APPLES, WHICH WERE ONLY ONE OF NUMEROUS FOOD PRODUCTS
SOLD IN THE STORES.  (FN3)  BEFORE THE PICKETS APPEARED AT ANY STORE, A
LETTER WAS DELIVERED TO THE STORE MANAGER INFORMING HIM THAT THE
PICKETING WAS ONLY AN APPEAL TO HIS CUSTOMERS NOT TO BUY WASHINGTON
STATE APPLES, AND THAT THE PICKETS WERE BEING EXPRESSLY INSTRUCTED "TO
PATROL PEACEFULLY IN FRONT OF THE CONSUMER ENTRANCES OF THE STORE, TO
STAY AWAY FROM THE DELIVERY ENTRANCES AND NOT TO INTERFERE WITH THE
WORK OF YOUR EMPLOYEES, OR WITH DELIVERIES TO OR PICKUPS FROM YOUR
STORE."  A COPY OF WRITTEN INSTRUCTIONS TO THE PICKETS - WHICH INCLUDED
THE EXPLICIT STATEMENT THAT "YOU ARE ALSO FORBIDDEN TO REQUEST THAT THE
CUSTOMERS NOT PATRONIZE THE STORE" - WAS ENCLOSED WITH THE LETTER. 
(FN4)  SINCE IT WAS DESIRED TO ASSURE SAFEWAY EMPLOYEES THAT THEY WERE
NOT TO CEASE WORK, AND TO AVOID ANY INTERFERENCE WITH PICKUPS OR
DELIVERIES, THE PICKETS APPEARED AFTER THE STORES OPENED FOR BUSINESS
AND DEPARTED BEFORE THE STORES CLOSED.  AT ALL TIMES DURING THE
PICKETING, THE STORE EMPLOYEES CONTINUED TO WORK, AND NO DELIVERIES OR
PICKUPS WERE OBSTRUCTED.  WASHINGTON STATE APPLES WERE HANDLED IN
NORMAL COURSE BY BOTH SAFEWAY EMPLOYEES AND THE EMPLOYEES OF OTHER
EMPLOYERS INVOLVED.  INGRESS AND EGRESS BY CUSTOMERS AND OTHERS WAS NOT
INTERFERED WITH IN ANY MANNER. 

A COMPLAINT ISSUED ON CHARGES THAT THIS CONDUCT VIOLATED SEC 8(B)(4)
AS AMENDED.  (FN5)  THE CASE WAS SUBMITTED DIRECTLY TO THE NATIONAL
LABOR RELATIONS BOARD ON A STIPULATION OF FACTS AND THE WAIVER OF A
HEARING AND PROCEEDINGS BEFORE A TRIAL EXAMINER.  THE BOARD HELD,
FOLLOWING ITS CONSTRUCTION OF THE STATUTE IN UPHOLSTERERS FRAME &
BEDDING WORKERS TWIN CITY LOCAL NO. 61, 132 N.L.R.B. 40, THAT "BY
LITERAL WORDING OF THE PROVISO (TO SECTION 8(B)(4)) AS WELL AS THROUGH
THE INTERPRETIVE GLOSS PLACED THEREON BY ITS DRAFTERS, CONSUMER
PICKETING IN FRONT OF A SECONDARY ESTABLISHMENT IS PROHIBITED."  132
N.L.R.B. 1172, 1177.  (FN6)  UPON RESPONDENTS' PETITION FOR REVIEW AND
THE BOARD'S CROSS-PETITION FOR ENFORCEMENT, THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT SET ASIDE THE BOARD'S ORDER AND
REMANDED.  THE COURT REJECTED THE BOARD'S CONSTRUCTION AND HELD THAT
THE STATUTORY REQUIREMENT OF A SHOWING THAT RESPONDENTS' CONDUCT WOULD
"THREATEN, COERCE, OR RESTRAIN" SAFEWAY COULD ONLY BE SATISFIED BY
AFFIRMATIVE PROOF THAT A SUBSTANTIAL ECONOMIC IMPACT ON SAFEWAY HAD
OCCURRED, OR WAS LIKELY TO OCCUR AS A RESULT OF THE CONDUCT.  UNDER THE
REMAND THE BOARD WAS LEFT "FREE TO REOPEN THE RECORD TO RECEIVE
EVIDENCE UPON THE ISSUE WHETHER SAFEWAY WAS IN FACT THREATENED,
COERCED, OR RESTRAINED."  113 U.S. APP. D.C. 356, 363, 308 F.2D 311,
318.  WE GRANTED CERTIORARI, 374 U.S. 804. 

THE BOARD'S READING OF THE STATUTE - THAT THE LEGISLATIVE HISTORY AND
THE PHRASE "OTHER THAN PICKETING" IN THE PROVISO REVEAL A CONGRESSIONAL
PURPOSE TO OUTLAW ALL PICKETING DIRECTED AT CUSTOMERS AT A SECONDARY
SITE - NECESSARILY RESTED ON THE FINDING THAT CONGRESS DETERMINED THAT
SUCH PICKETING ALWAYS THREATENS, COERCES OR RESTRAINS THE SECONDARY
EMPLOYER.  WE THEREFORE HAVE A SPECIAL RESPONSIBILITY TO EXAMINE THE
LEGISLATIVE HISTORY FOR CONFIRMATION THAT CONGRESS MADE THAT
DETERMINATION.  THROUGHOUT THE HISTORY OF FEDERAL REGULATION OF LABOR
RELATIONS, CONGRESS HAS CONSISTENTLY REFUSED TO PROHIBIT PEACEFUL
PICKETING EXCEPT WHERE IT IS USED AS A MEANS TO ACHIEVE SPECIFIC ENDS
WHICH EXPERIENCE HAS SHOWN ARE UNDESIRABLE.  "IN THE SENSITIVE AREA OF
PEACEFUL PICKETING CONGRESS HAS DEALT EXPLICITLY WITH ISOLATED EVILS
WHICH EXPERIENCE HAS ESTABLISHED FLOW FROM SUCH PICKETING."  LABOR
BOARD V. DRIVERS LOCAL UNION, 362 U.S. 274, 284.  WE HAVE RECOGNIZED
THIS CONGRESSIONAL PRACTICE AND HAVE NOT ASCRIBED TO CONGRESS A PURPOSE
TO OUTLAW PEACEFUL PICKETING UNLESS "THERE IS THE CLEAREST INDICATION
IN THE LEGISLATIVE HISTORY," IBID., THAT CONGRESS INTENDED TO DO SO AS
REGARDS THE PARTICULAR ENDS OF THE PICKETING UNDER REVIEW.  BOTH THE
CONGRESSIONAL POLICY AND OUR ADHERENCE TO THIS PRINCIPLE OF
INTERPRETATION REFLECT CONCERN THAT A BROAD BAN AGAINST PEACEFUL
PICKETING MIGHT COLLIDE WITH THE GUARANTEES OF THE FIRST AMENDMENT. 

WE HAVE EXAMINED THE LEGISLATIVE HISTORY OF THE AMENDMENTS TO SEC
8(B)(4), AND CONCLUDE THAT IT DOES NOT REFLECT WITH THE REQUISITE
CLARITY A CONGRESSIONAL PLAN TO PROSCRIBE ALL PEACEFUL CONSUMER
PICKETING AT SECONDARY SITES, AND, PARTICULARLY, ANY CONCERN WITH
PEACEFUL PICKETING WHEN IT IS LIMITED, AS HERE, TO PERSUADING SAFEWAY
CUSTOMERS NOT TO BUY WASHINGTON STATE APPLES WHEN THEY TRADED IN THE
SAFEWAY STORES.  ALL THAT THE LEGISLATIVE HISTORY SHOWS IN THE WAY OF
AN "ISOLATED EVIL" BELIEVED TO REQUIRE PROSCRIPTION OF PEACEFUL
CONSUMER PICKETING AT SECONDARY SITES, WAS ITS USE TO PERSUADE THE
CUSTOMERS OF THE SECONDARY EMPLOYER TO CEASE TRADING WITH HIM IN ORDER
TO FORCE HIM TO CEASE DEALING WITH, OR TO PUT PRESSURE UPON, THE
PRIMARY EMPLOYER.  THIS NARROW FOCUS REFLECTS THE DIFFERENCE BETWEEN
SUCH CONDUCT AND PEACEFUL PICKETING AT THE SECONDARY SITE DIRECTED ONLY
AT THE STRUCK PRODUCT.  IN THE LATTER CASE, THE UNION'S APPEAL TO THE
PUBLIC IS CONFINED TO ITS DISPUTE WITH THE PRIMARY EMPLOYER, SINCE THE
PUBLIC IS NOT ASKED TO WITHHOLD ITS PATRONAGE FROM THE SECONDARY
EMPLOYER, BUT ONLY TO BOYCOTT THE PRIMARY EMPLOYER'S GOODS.  ON THE
OTHER HAND, A UNION APPEAL TO THE PUBLIC AT THE SECONDARY SITE NOT TO
TRADE AT ALL WITH THE SECONDARY EMPLOYER GOES BEYOND THE GOODS OF THE
PRIMARY EMPLOYER, AND SEEKS THE PUBLIC'S ASSISTANCE IN FORCING THE
SECONDARY EMPLOYER TO COOPERATE WITH THE UNION IN ITS PRIMARY DISPUTE. 
(FN7)  THIS IS NOT TO SAY THAT THIS DISTINCTION WAS EXPRESSLY ALLUDED
TO IN THE DEBATES.  IT IS TO SAY, HOWEVER, THAT THE CONSUMER PICKETING
CARRIED ON IN THIS CASE IS NOT ATTENDED BY THE ABUSES AT WHICH THE
STATUTE WAS DIRECTED. 

THE STORY OF THE 1959 AMENDMENTS, WHICH WE HAVE DETAILED AT GREATER
LENGTH IN OUR OPINION FILED TODAY IN LABOR BOARD V. SERVETTE, INC.,
ANTE, P. 46, BEGINS WITH THE ORIGINAL SEC 8(B)(4) OF THE NATIONAL LABOR
RELATIONS ACT.  ITS PROHIBITION, IN PERTINENT PART, WAS CONFINED TO THE
INDUCING OR ENCOURAGING OF "THE EMPLOYEES OF ANY EMPLOYER TO ENGAGE IN,
A STRIKE OR A CONCERTED REFUSAL  ...  TO  ...  HANDLE  ...  ANY GOODS
...  " OF A PRIMARY EMPLOYER.  THIS PROVED TO BE INEPT LANGUAGE.  THREE
MAJOR LOOPHOLES WERE REVEALED.  SINCE ONLY INDUCEMENT OF "EMPLOYEES"
WAS PROSCRIBED, DIRECT INDUCEMENT OF A SUPERVISOR OR THE SECONDARY
EMPLOYER BY THREATS OF LABOR TROUBLE WAS NOT PROHIBITED.   SINCE ONLY A
"STRIKE OR A CONCERTED REFUSAL" WAS PROHIBITED, PRESSURE UPON A SINGLE
EMPLOYEE WAS NOT FORBIDDEN.  FINALLY, RAILROADS, AIRLINES AND
MUNICIPALITIES WERE NOT "EMPLOYERS" UNDER THE ACT AND THEREFORE
INDUCEMENT OR ENCOURAGEMENT OF THEIR EMPLOYEES WAS NOT UNLAWFUL. 

WHEN MAJOR LABOR RELATIONS LEGISLATION WAS BEING CONSIDERED IN 1958,
THE CLOSING OF THESE LOOPHOLES WAS IMPORTANT TO THE HOUSE AND TO SOME
MEMBERS OF THE SENATE.  BUT THE PREVAILING SENATE SENTIMENT FAVORED NEW
LEGISLATION PRIMARILY CONCERNED WITH THE REDRESS OF OTHER ABUSES, AND
NEITHER THE KENNEDY-IVES BILL, WHICH FAILED OF PASSAGE IN THE HOUSE IN
THE EIGHTY-FIFTH CONGRESS, NOR THE KENNEDY-ERVIN BILL, ADOPTED BY THE
SENATE IN THE EIGHTY-SIXTH CONGRESS, INCLUDED ANY REVISION OF SEC
8(B)(4).  PROPOSED AMENDMENTS OF SEC 8(B)(4) OFFERED BY SEVERAL
SENATORS TO FILL THE THREE LOOPHOLES WERE REJECTED.  THE ADMINISTRATION
INTRODUCED SUCH A BILL, AND IT WAS SUPPORTED BY SENATORS DIRKSEN AND
GOLDWATER.  (FN8)  SENATOR GOLDWATER, AN INSISTENT PROPONENT OF STIFF
BOYCOTT CURBS, ALSO PROPOSED HIS OWN AMENDMENTS.  (FN9)  WE THINK IT
ESPECIALLY SIGNIFICANT THAT NEITHER SENATOR, NOR THE SECRETARY OF LABOR
IN TESTIFYING IN SUPPORT OF THE ADMINISTRATION'S BILL, REFERRED TO
CONSUMER PICKETING AS MAKING THE AMENDMENTS NECESSARY.  (FN10)  SENATOR
MCCLELLAN, WHO ALSO OFFERED A BILL TO CURB BOYCOTTS, MENTIONED CONSUMER
PICKETING BUT ONLY SUCH AS WAS "PRESSURE IN THE FORM OF DISSUADING
CUSTOMERS FROM DEALING WITH SECONDARY EMPLOYERS."  (FN11)  IT WAS THE
OPPONENTS OF THE AMENDMENTS WHO, IN EXPRESSING FEAR OF THEIR SWEEP,
SUGGESTED THAT THEY MIGHT PROSCRIBE CONSUMER PICKETING.  SENATOR
HUMPHREY FIRST SOUNDED THE WARNING EARLY IN APRIL.  (FN12)  MANY MONTHS
LATER, WHEN THE CONFERENCE BILL WAS BEFORE THE SENATE, SENATOR MORSE, A
CONFEREE, WOULD NOT SUPPORT THE CONFERENCE BILL ON THE EXPRESS GROUND
THAT IT PROHIBITED CONSUMER PICKETING.  (FN13)  BUT WE HAVE OFTEN
CAUTIONED AGAINST THE DANGER, WHEN INTERPRETING A STATUTE, OF RELIANCE
UPON THE VIEWS OF ITS LEGISLATIVE OPPONENTS.  IN THEIR ZEAL TO DEFEAT A
BILL, THEY UNDERSTANDABLY TEND TO OVERSTATE ITS REACH.  "THE FEARS AND
DOUBTS OF THE OPPOSITION ARE NO AUTHORITATIVE GUIDE TO THE CONSTRUCTION
OF LEGISLATION.  IT IS THE SPONSORS THAT WE LOOK TO WHEN THE MEANING OF
THE STATUTORY WORDS IS IN DOUBT."  SCHWEGMANN BROS. V. CALVERT
DISTILLERS CORP., 341 U.S. 384, 394-395; SEE ALSO MASTRO PLASTICS CORP.
V. LABOR BOARD, 350 U.S. 270, 288; UNITED STATES V. CALAMARO, 354 U.S.
351, N. 9, AT 358.  THE SILENCE OF THE SPONSORS OF AMENDMENTS IS
PREGNANT WITH SIGNIFICANCE SINCE THEY MUST HAVE BEEN AWARE THAT
CONSUMER PICKETING AS SUCH HAD BEEN HELD TO BE OUTSIDE THE REACH OF SEC
8(B)(4).  (FN14)  WE ARE FAITHFUL TO OUR PRACTICE OF RESPECTING THE
CONGRESSIONAL POLICY OF LEGISLATING ONLY AGAINST CLEARLY IDENTIFIED
ABUSES OF PEACEFUL PICKETING WHEN WE CONCLUDE THAT THE SENATE NEITHER
SPECIFIED THE KIND OF PICKETING HERE INVOLVED AS AN ABUSE, NOR
INDICATED ANY INTENTION OF BANNING ALL CONSUMER PICKETING. 

THE HOUSE HISTROY IS SIMILARLY BECLOUDED, BUT WHAT APPEARS CONFIRMS
OUR CONCLUSION.  FROM THE OUTSET THE HOUSE LEGISLATION INCLUDED
PROVISIONS CONCERNING SECONDARY BOYCOTTS.  THE LANDRUM-GRIFFIN BILL,
(FN15)  WHICH WAS ULTIMATELY PASSED BY THE HOUSE, EMBODIED THE
EISENHOWER ADMINISTRATION'S PROPOSALS AS TO SECONDARY BOYCOTTS.  THE
INITIAL STATEMENT OF CONGRESSMAN GRIFFIN IN INTRODUCING THE BILL WHICH
BEARS HIS NAME, CONTAINS NO REFERENCE TO CONSUMER PICKETING IN THE LIST
OF ABUSES WHICH HE THOUGHT REQUIRED THE SECONDARY BOYCOTT AMENDMENTS. 
(FN16) LATER IN THE HOUSE DEBATES HE DID DISCUSS CONSUMER PICKETING,
BUT ONLY IN THE CONTEXT OF ITS ABUSE WHEN DIRECTED AGAINST SHUTTING OFF
THE PATRONAGE OF A SECONDARY EMPLOYER. 

IN THE DEBATES BEFORE PASSAGE OF THE HOUSE BILL HE STATED THAT THE
AMENDMENTS APPLIED TO CONSUMER PICKETING OF CUSTOMER ENTRANCES TO
RETAIL STORES SELLING GOODS MANUFACTURED BY A CONCERN UNDER STRIKE, IF
THE PICKETING WERE DESIGNED TO "COERCE OR TO RESTRAIN THE EMPLOYER OF
THE SECOND ESTABLISHMENT, TO GET HIM NOT TO DO BUSINESS WITH THE
MANUFACTURER  ...  ," AND FURTHER THAT, "OF COURSE, THIS BILL AND ANY
OTHER BILL IS LIMITED BY THE CONSTITUTIONAL RIGHT OF FREE SPEECH.  IF
THE PURPOSE OF THE PICKETING IS TO COERCE THE RETAILER NOT TO DO
BUSINESS WITH THE MANUFACTURER" - THEN SUCH A BOYCOTT COULD BE
STOPPED.  (FN17)    THE RELEVANT CHANGES IN FORMER SEC 8(B)(4) MADE BY
THE HOUSE BILL SUBSTITUTED "ANY INDIVIDUAL EMPLOYED BY ANY PERSON" FOR
THE TAFT-HARTLEY WORDING, "THE EMPLOYEES OF ANY EMPLOYER," DELETED THE
REQUIREMENT OF A "CONCERTED" REFUSAL, AND MADE IT AN UNFAIR LABOR
PRACTICE "TO THREATEN, COERCE, OR RESTRAIN ANY PERSON" WHERE AN OBJECT
THEREOF WAS AN END FORBIDDEN BY THE STATUTE, E.G., FORCING OR REQUIRING
A SECONDARY EMPLOYER TO CEASE HANDLING THE PRODUCTS OF, OR DOING
BUSINESS WITH, A PRIMARY EMPLOYER.  THERE IS THUS NOTHING IN THE
LEGISLATIVE HISTORY PRIOR TO THE CONVENING OF THE CONFERENCE COMMITTEE
WHICH SHOWS ANY CONGRESSIONAL CONCERN WITH CONSUMER PICKETING BEYOND
THAT WITH THE "ISOLATED EVIL" OF ITS USE TO CUT OFF THE BUSINESS OF A
SECONDARY EMPLOYER AS A MEANS OF FORCING HIM TO STOP DOING BUSINESS
WITH THE PRIMARY EMPLOYER.  WHEN CONGRESS MEANT TO BAR PICKETING PER
SE, IT MADE ITS MEANING CLEAR; FOR EXAMPLE, SEC 8(B)(7) MAKES IT AN
UNFAIR LABOR PRACTICE, "TO PICKET OR CAUSE TO BE PICKETED ...  ANY
EMPLOYER  ...  ."  IN CONTRAST, THE PROHIBITION OF SEC 8(B)(4) IS KEYED
TO THE COERCIVE NATURE OF THE CONDUCT, WHETHER IT BE PICKETING OR
OTHERWISE. 

SENATOR KENNEDY PRESIDED OVER THE CONFERENCE COMMITTEE.  HE AND
CONGRESSMAN THOMPSON PREPARED A JOINT ANALYSIS OF THE SENATE AND HOUSE
BILLS.  THIS ANALYSIS POINTED UP THE FIRST AMENDMENT IMPLICATIONS OF
THE BROAD LANGUAGE IN THE HOUSE REVISIONS OF SEC 8(B)(4) STATING: 

"THE PROHIBITION OF THE HOUSE BILL REACHES NOT ONLY PICKETING BUT
LEAFLETS, RADIO BROADCASTS AND NEWSPAPER ADVERTISEMENTS, THEREBY
INTERFERING WITH FREEDOM OF SPEECH. 

     *         *     *         *         * 

"  ...  ONE OF THE APPARENT PURPOSES OF THE AMENDMENT IS TO PREVENT
UNIONS FROM APPEALING TO THE GENERAL PUBLIC AS CONSUMERS FOR ASSISTANCE
IN A LABOR DISPUTE.  THIS IS A BASIC INFRINGEMENT UPON FREEDOM OF
EXPRESSION."  (FN18) 

THIS ANALYSIS WAS THE FIRST STEP IN THE DEVELOPMENT OF THE PUBLICITY
PROVISO, BUT NOTHING IN THE LEGISLATIVE HISTORY OF THE PROVISO ALTERS
OUR CONCLUSION THAT CONGRESS DID NOT CLEARLY EXPRESS AN INTENTION THAT
AMENDED SEC 8(B)(4) SHOULD PROHIBIT ALL CONSUMER PICKETING.  BECAUSE OF
THE SWEEPING LANGUAGE OF THE HOUSE BILL, AND ITS IMPLICATIONS FOR
FREEDOM OF SPEECH, THE SENATE CONFEREES REFUSED TO ACCEDE TO THE HOUSE
PROPOSAL WITHOUT SAFEGUARDS FOR THE RIGHT OF UNIONS TO APPEAL TO THE
PUBLIC, EVEN BY SOME CONDUCT WHICH MIGHT BE "COERCIVE."  THE RESULT WAS
THE ADDITION OF THE PROVISO.  BUT IT DOES NOT FOLLOW FROM THE FACT THAT
SOME COERCIVE CONDUCT WAS PROTECTED BY THE PROVISO, THAT THE EXCEPTION
"OTHER THAN PICKETING" INDICATES THAT CONGRESS HAD DETERMINED THAT ALL
CONSUMER PICKETING WAS COERCIVE. 

NO CONFERENCE REPORT WAS BEFORE THE SENATE WHEN IT PASSED THE
COMPROMISE BILL, AND IT HAD THE BENEFIT ONLY OF SENATOR KENNEDY'S
STATEMENT OF THE PURPOSE OF THE PROVISO.  HE SAID THAT THE PROVISO
PRESERVED "THE RIGHT TO APPEAL TO CONSUMERS BY METHODS OTHER THAN
PICKETING ASKING THEM TO REFRAIN FROM BUYING GOODS MADE BY NONUNION
LABOR AND TO REFRAIN FROM TRADING WITH A RETAILER WHO SELLS SUCH GOODS
...  .  WE WERE NOT ABLE TO PERSUADE THE HOUSE CONFEREES TO PERMIT
PICKETING IN FRONT OF THAT SECONDARY SHOP, BUT WERE ABLE TO PERSUADE
THEM TO AGREE THAT THE UNION SHALL BE FREE TO CONDUCT INFORMATIONAL
ACTIVITY SHORT OF PICKETING.  IN OTHER WORDS, THE UNION CAN HAND OUT
HANDBILLS AT THE SHOP  ...  AND CAN CARRY ON ALL PUBLICITY SHORT OF
HAVING AMBULATORY PICKETING  ...  ."  (FN19) THIS EXPLANATION DOES NOT
COMPEL THE CONCLUSION THAT THE CONFERENCE AGREEMENT CONTEMPLATED
PROHIBITING ANY CONSUMER PICKETING AT A SECONDARY SITE BEYOND THAT
WHICH URGES THE PUBLIC, IN SENATOR KENNEDY'S WORDS, TO "REFRAIN FROM
TRADING WITH A RETAILER WHO SELLS SUCH GOODS."  TO READ INTO THE
CONFERENCE AGREEMENT, ON THE BASIS OF A SINGLE STATEMENT, AN INTENTION
TO PROHIBIT ALL CONSUMER PICKETING AT A SECONDARY SITE WOULD DEPART
FROM OUR PRACTICE OF RESPECTING THE CONGRESSIONAL POLICY NOT TO
PROHIBIT PEACEFUL PICKETING EXCEPT TO CURB "ISOLATED EVILS" SPELLED OUT
BY THE CONGRESS ITSELF. 

PEACEFUL CONSUMER PICKETING TO SHUT OFF ALL TRADE WITH THE SECONDARY
EMPLOYER UNLESS HE AIDS THE UNION IN ITS DISPUTE WITH THE PRIMARY
EMPLOYER, IS POLES APART FROM SUCH PICKETING WHICH ONLY PERSUADES HIS
CUSTOMERS NOT TO BUY THE STRUCK PRODUCT.  THE PROVISO INDICATES NO MORE
THAN THAT THE SENATE CONFEREES' CONSTITUTIONAL DOUBTS LED CONGRESS TO
AUTHORIZE PUBLICITY OTHER THAN PICKETING WHICH PERSUADES THE CUSTOMERS
OF A SECONDARY EMPLOYER TO STOP ALL TRADING WITH HIM BUT NOT SUCH
PUBLICITY WHICH HAS THE EFFECT OF CUTTING OFF HIS DELIVERIES OR
INDUCING HIS EMPLOYEES TO CEASE WORK.  ON THE OTHER HAND, PICKETING
WHICH PERSUADES THE CUSTOMERS OF A SECONDARY EMPLOYER TO STOP ALL
TRADING WITH HIM WAS ALSO TO BE BARRED. 

IN SUM, THE LEGISLATIVE HISTORY DOES NOT SUPPORT THE BOARD'S FINDING
THAT CONGRESS MEANT TO PROHIBIT ALL CONSUMER PICKETING AT A SECONDARY
SITE, HAVING DETERMINED THAT SUCH PICKETING NECESSARILY THREATENED,
COERCED OR RESTRAINED THE SECONDARY EMPLOYER.  RATHER, THE HISTORY
SHOWS THAT CONGRESS WAS FOLLOWING ITS USUAL PRACTICE OF LEGISLATING
AGAINST PEACEFUL PICKETING ONLY TO CURB "ISOLATED EVILS." 

THIS DISTINCTION IS OPPOSED AS "UNREALISTIC" BECAUSE, IT IS URGED,
ALL PICKETING AUTOMATICALLY PROVOKES THE PUBLIC TO STAY AWAY FROM THE
PICKETED ESTABLISHMENT.  THE PUBLIC WILL, IT IS SAID, NEITHER READ THE
SIGNS AND HANDBILLS, NOR NOTE THE EXPLICIT INJUNCTION THAT "THIS IS NOT
A STRIKE AGAINST ANY STORE OR MARKET."  BE THAT AS IT MAY, OUR HOLDING
TODAY SIMPLY TAKES NOTE OF THE FACT THAT CONGRESS HAS NEVER ADOPTED A
BROAD CONDEMNATION OF PEACEFUL PICKETING, SUCH AS THAT URGED UPON US BY
PETITIONERS, AND AN INTENTION TO DO SO IS NOT REVEALED WITH THAT
"CLEAREST INDICATION IN THE LEGISLATIVE HISTORY," WHICH WE REQUIRE. 
LABOR BOARD V. DRIVERS LOCAL UNION, SUPRA. 

WE COME THEN TO THE QUESTION WHETHER THE PICKETING IN THIS CASE,
CONFINED AS IT WAS TO PERSUADING CUSTOMERS TO CEASE BUYING THE PRODUCT
OF THE PRIMARY EMPLOYER, FALLS WITHIN THE AREA OF SECONDARY CONSUMER
PICKETING WHICH CONGRESS DID CLEARLY INDICATE ITS INTENTION TO PROHIBIT
UNDER SEC 8(B)(4)(II).  WE HOLD THAT IT DID NOT FALL WITHIN THAT AREA,
AND THEREFORE DID NOT "THREATEN, COERCE, OR RESTRAIN" SAFEWAY.  WHILE
ANY DIMINUTION IN SAFEWAY'S PURCHASES OF APPLES DUE TO A DROP IN
CONSUMER DEMAND MIGHT BE SAID TO BE A RESULT WHICH CAUSES RESPONDENTS'
PICKETING TO FALL LITERALLY WITHIN THE STATUTORY PROHIBITION, "IT IS A
FAMILIAR RULE, THAT A THING MAY BE WITHIN THE LETTER OF THE STATUTE AND
YET NOT WITHIN THE STATUTE, BECAUSE NOT WITHIN ITS SPIRIT, NOR WITHIN
THE INTENTION OF ITS MAKERS."  HOLY TRINITY CHURCH V. UNITED STATES,
143 U.S. 457, 459.  SEE UNITED STATES V. AMERICAN TRUCKING ASSNS., 310
U.S. 534, 543-544.  WHEN CONSUMER PICKETING IS EMPLOYED ONLY TO
PERSUADE CUSTOMERS NOT TO BUY THE STRUCK PRODUCT, THE UNION'S APPEAL IS
CLOSELY CONFINED TO THE PRIMARY DISPUTE.  THE SITE OF THE APPEAL IS
EXPANDED TO INCLUDE THE PREMISES OF THE SECONDARY EMPLOYER, BUT IF THE
APPEAL SUCCEEDS, THE SECONDARY EMPLOYER'S PURCHASES FROM THE STRUCK
FIRMS ARE DECREASED ONLY BECAUSE THE PUBLIC HAS DIMINISHED ITS
PURCHASES OF THE STRUCK PRODUCT.  ON THE OTHER HAND, WHEN CONSUMER
PICKETING IS EMPLOYED TO PERSUADE CUSTOMERS NOT TO TRADE AT ALL WITH
THE SECONDARY EMPLOYER, THE LATTER STOPS BUYING THE STRUCK PRODUCT, NOT
BECAUSE OF A FALLING DEMAND, BUT IN RESPONSE TO PRESSURE DESIGNED TO
INFLICT INJURY ON HIS BUSINESS GENERALLY.  IN SUCH CASE, THE UNION DOES
MORE THAN MERELY FOLLOW THE STRUCK PRODUCT; IT CREATES A SEPARATE
DISPUTE WITH THE SECONDARY EMPLOYER.  (FN20) 

WE DISAGREE THEREFORE WITH THE COURT OF APPEALS THAT THE TEST OF "TO
THREATEN, COERCE, OR RESTRAIN" FOR THE PURPOSES OF THIS CASE IS WHETHER
SAFEWAY SUFFERED OR WAS LIKELY TO SUFFER ECONOMIC LOSS.  A VIOLATION OF
SEC 8(B)(4)(II)(B) WOULD NOT BE ESTABLISHED, MERELY BECAUSE
RESPONDENTS' PICKETING WAS EFFECTIVE TO REDUCE SAFEWAY'S SALES OF
WASHINGTON STATE APPLES, EVEN IF THIS LED OR MIGHT LEAD SAFEWAY TO DROP
THE ITEM AS A POOR SELLER. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS
REMANDED WITH DIRECTION TO ENTER JUDGMENT SETTING ASIDE THE BOARD'S
ORDER.  IT IS SO ORDERED. 

FN1  AS AMENDED BY THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT
OF 1959 (LANDRUM-GRIFFIN ACT) SEC 704(A), 73 STAT. 542-543, 29 U.S.C.
(SUPP. IV, 1963) SEC 158(B)(4). 

FN2  THE FIRMS, 24 IN NUMBER, ARE MEMBERS OF THE TREE FRUITS LABOR
RELATIONS COMMITTEE, INC., WHICH ACTS AS THE MEMBERS' AGENT IN LABOR
DISPUTES AND IN COLLECTIVE BARGAINING WITH UNIONS WHICH REPRESENT
EMPLOYEES OF THE MEMBERS.  THE STRIKE WAS CALLED IN A DISPUTE OVER THE
TERMS OF THE RENEWAL OF A COLLECTIVE BARGAINING AGREEMENT. 

FN3  THE PLACARD WORN BY EACH PICKET STATED:  "TO THE CONSUMER:  NON
UNION WASHINGTON STATE APPLES ARE BEING SOLD AT THIS STORE.  PLEASE DO
NOT PURCHASE SUCH APPLES.  THANK YOU.  TEAMSTERS LOCAL 760, YAKIMA,
WASHINGTON." 

A TYPICAL HANDBILL READ:

         "DON'T BUY

WASHINGTON STATE

  APPLES

                          THE 1960 CROP OF WASHINGTON STATE APPLES

                             IS BEING PACKED BY NON-UNION FIRMS 

INCLUDED IN THIS NON-UNION OPERATION ARE TWENTY-SIX FIRMS IN THE
YAKIMA VALLEY WITH WHICH THERE IS A LABOR DISPUTE.  THESE FIRMS ARE
CHARGED WITH BEING

                                       UNFAIR 

BY THEIR EMPLOYEES WHO, WITH THEIR UNION, ARE ON STRIKE AND HAVE BEEN
REPLACED BY NON-UNION STRIKEBREAKING WORKERS EMPLOYED UNDER SUBSTANDARD
WAGE SCALES AND WORKING CONDITIONS. 

IN JUSTICE TO THESE STRIKING UNION WORKERS WHO ARE ATTEMPTING TO
PROTECT THEIR LIVING STANDARDS AND THEIR RIGHT TO ENGAGE IN GOOD-FAITH
COLLECTIVE BARGAINING, WE REQUEST THAT YOU

                DON'T BUY

      WASHINGTON STATE

       APPLES

         TEAMSTERS UNION LOCAL 760

                              YAKIMA, WASHINGTON 

THIS IS NOT A STRIKE AGAINST ANY STORE OR MARKET.  (P.S. - PACIFIC
FRUIT & PRODUCE CO. IS THE ONLY FIRM PACKING WASHINGTON STATE APPLES
UNDER A UNION CONTRACT.)" 

FN4  COPIES OF THE LETTER DELIVERED TO EACH STORE MANAGER AND OF THE
INSTRUCTIONS TO PICKETS ARE PRINTED IN THE APPENDIX. 

FN5  THE COMPLAINT CHARGED VIOLATIONS OF BOTH SUBSECTIONS (I) AND
(II) OF SEC 8(B)(4).  THE BOARD HELD, HOWEVER, THAT AS THE EVIDENCE
INDICATED "THAT RESPONDENTS' PICKETING WAS DIRECTED AT CONSUMERS ONLY,
AND WAS NOT INTENDED TO 'INDUCE OR ENCOURAGE' EMPLOYEES OF SAFEWAY OR
OF ITS SUPPLIERS TO ENGAGE IN ANY KIND OF ACTION, WE FIND THAT BY SUCH
PICKETING RESPONDENTS DID NOT VIOLATE SECTION 8(B)(4)(I)(B) OF THE
ACT."  132 N.L.R.B., AT 1177.  SEE ALSO LABOR BOARD V. SERVETTE, INC.,
ANTE, P. 46, DECIDED TODAY. 

FN6  ACCORD:  BURR & PERFECTION MATTRESS CO. V. LABOR BOARD, 321 F.2D
612 (C.A. 5TH CIR.). 

FN7  THE DISTINCTION BETWEEN PICKETING A SECONDARY EMPLOYER MERELY TO
"FOLLOW THE STRUCK GOODS," AND PICKETING DESIGNED TO RESULT IN A
GENERALIZED LOSS OF PATRONAGE, WAS WELL ESTABLISHED IN THE STATE CASES
BY 1940.  THE DISTINCTION WAS SOMETIMES JUSTIFIED ON THE GROUND THAT
THE SECONDARY EMPLOYER, WHO WAS PRESUMED TO RECEIVE A COMPETITIVE
BENEFIT FROM THE PRIMARY EMPLOYER'S NONUNION, AND HENCE LOWER, WAGE
SCALES, WAS IN "UNITY OF INTEREST" WITH THE PRIMARY EMPLOYER,
GOLDFINGER V. FEINTUCH, 276 N.Y. 281, 286, 11 N.E.2D 910, 913; NEWARK
LADDER & BRACKET SALES CO. V. FURNITURE WORKERS LOCAL 66, 125 N.J. EQ.
99, 4 A.2D 49; JOHNSON V. MILK DRIVERS & DAIRY EMPLOYEES UNION, LOCAL
854, 195 SO. 791 (CT. APP. LA.), AND SOMETIMES ON THE GROUND THAT
PICKETING RESTRICTED TO THE PRIMARY EMPLOYER'S PRODUCT IS "A PRIMARY
BOYCOTT AGAINST THE MERCHANDISE."  CHIATE V. UNITED CANNERY
AGRICULTURAL PACKING & ALLIED WORKERS OF AMERICA, 2 CCH LAB.  CAS. 
125, 126 (CAL. SUPER.  CT.).  SEE I TELLER, LABOR DISPUTES AND
COLLECTIVE BARGAINING SEC 123 (1940). 

FN8  S. 748, 105 CONG. REC. 1259-1293, II LEGISLATIVE HISTORY OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 975, 987. 

FN9  105 CONG. REC. 6190, II LEG.  HIST.  1034. 

FN10 105 CONG. REC. 1283, 6428, II LEG.  HIST.  979, 1079 (SENATOR
GOLDWATER); 105 CONG.  REC. 1729-1730, II LEG.  HIST.  993-994 (REMARKS
OF THE SECRETARY OF LABOR, INSERTED IN THE RECORD BY SENATOR DIRKSEN). 

IT IS TRUE THAT SENATOR GOLDWATER REFERRED TO CONSUMER PICKETING WHEN
THE CONFERENCE BILL WAS BEFORE THE SENATE.  HIS FULL STATEMENT READS AS
FOLLOWS:  "THE HOUSE BILL ...  CLOSED UP EVERY LOOPHOLE IN THE BOYCOTT
LINE, AN EXAMPLE OF WHICH THE PRESIDENT GAVE ON HIS NATIONWIDE TV
PROGRAM ON AUGUST 6  ...  ."  105 CONG. REC. 17904, II LEG.  HIST. 
1437.  THE EXAMPLE GIVEN BY THE PRESIDENT WAS THIS:  "THE EMPLOYEES (OF
A FURNITURE MANUFACTURER) VOTE AGAINST JOINING A PARTICULAR UNION. 
INSTEAD OF PICKETING THE FURNITURE PLANT ITSELF, UNSCRUPULOUS
ORGANIZING OFFICIALS  ...  PICKET THE STORES WHICH SELL THE FURNITURE
...  .  HOW CAN ANYONE JUSTIFY THIS KIND OF PRESSURE AGAINST STORES
WHICH ARE NOT INVOLVED IN ANY DISPUTE?  ...  THIS KIND OF ACTION IS
DESIGNED TO MAKE THE STORES BRING PRESSURE ON THE FURNITURE PLANT AND
ITS EMPLOYEES  ...  ."  105 CONG. REC. 19954, II LEG.  HIST.  1842.
SENATOR GOLDWATER'S OWN DEFINITION OF WHAT HE MEANT BY A SECONDARY
CONSUMER BOYCOTT IS EVEN MORE CLEARLY NARROW IN SCOPE: "A SECONDARY
CONSUMER, OR CUSTOMER, BOYCOTT INVOLVES THE REFUSAL OF CONSUMERS OR
CUSTOMERS TO BUY THE PRODUCTS OR SERVICES OF ONE EMPLOYER IN ORDER TO
FORCE HIM TO STOP DOING BUSINESS WITH ANOTHER EMPLOYER."  105 CONG.
REC. 17674, II LEG.  HIST.  1386.    FN11  105 CONG. REC. 6667, II
LEG.  HIST.  1194. 

FN12  105 CONG. REC. 6232, II LEG.  HIST.  1037. 

FN13  105 CONG. REC. 17882-17883, II LEG.  HIST.  1426. 

FN14  UNITED WHOLESALE & WAREHOUSE EMPLOYEES, LOCAL 261, V. LABOR
BOARD, 108 U.S. APP.  D.C. 341, 282 F.2D 824; LABOR BOARD V.
INTERNATIONAL UNION OF BREWERY WORKERS, 272 F. D 817, 819 (C.A. 10TH
CIR.); LABOR BOARD V. BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS
CONFERENCE BOARD, 228 F.2D 553, 559-561 (C.A.2D CIR.), CERT. DENIED,
351 U.S. 962.    FN15  THE LANDRUM-GRIFFIN BILL, H.R. 8400, WAS
SUBSTITUTED ON THE FLOOR OF THE HOUSE FOR THE BILL REPORTED BY THE
HOUSE COMMITTEE ON EDUCATION AND LABOR, H.R. 8342; THE LANGUAGE OF THE
TWO BILLS WITH RESPECT TO SECONDARY BOYCOTTS IS COMPARED AT II LEG. 
HIST.  1912. 

FN16  105 CONG. REC. 15531-15532, II LEG.  HIST.  1568. 

FN17  105 CONG. REC. 15673, II LEG.  HIST.  1615.  THE SAME CONCERN
WITH DIRECT COERCION OF SECONDARY EMPLOYERS APPEARS IN PRESIDENT
EISENHOWER'S MESSAGE ACCOMPANYING THE ADMINISTRATION BILL.  S. DOC. NO.
10, 86TH CONG., 1ST SESS., I LEG.  HIST.  81-82.  SEE ALSO MINORITY
REPORT OF THE SENATE COMMITTEE ON THE KENNEDY-ERVIN BILL.  S. REP. NO.
187, 86TH CONG., 1ST SESS., I LEG.  HIST.  474-475. 

FN18  105 CONG. REC. 16591, II LEG.  HIST.  1708. 

FN19  105 CONG. REC. 17898-17899, II LEG.  HIST.  1432. 

FN20  FOR EXAMPLE:  IF A PUBLIC APPEAL DIRECTED ONLY AT A PRODUCT
RESULTS IN A DECLINE OF 25% IN THE SECONDARY EMPLOYER'S SALES OF THAT
PRODUCT, THE CORRESPONDING REDUCTION OF HIS PURCHASES OF THE PRODUCT IS
DUE TO HIS INABILITY TO SELL ANY MORE.  BUT IF THE APPEAL IS BROADENED
TO ASK THAT THE PUBLIC CEASE ALL PATRONAGE, AND IF THERE IS A 25%
RESPONSE, THE SECONDARY EMPLOYER FACES THIS DECISION:  WHETHER TO
DISCONTINUE HANDLING THE PRIMARY PRODUCT ENTIRELY, EVEN THOUGH HE MIGHT
OTHERWISE HAVE CONTINUED TO SELL IT AT THE 75% LEVEL, IN ORDER TO
PREVENT THE LOSS OF SALES OF OTHER PRODUCTS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

APPENDIX TO OPINION OF THE COURT. 

"NOTICE TO STORE MANAGER AND STORE EMPLOYEES. 

"WE ARE ADVISED THAT YOU ARE PRESENTLY ENGAGED IN SELLING WASHINGTON
STATE APPLES. 

"THE 1960 CROP OF WASHINGTON STATE APPLES IS BEING PACKED BY NON
UNION FIRMS, INCLUDING 26 FIRMS IN THE YAKIMA VALLEY.  PRIOR TO THIS
YEAR, THE 26 YAKIMA VALLEY FIRMS HAD BEEN PARTIES TO A COLLECTIVE
BARGAINING CONTRACT WITH TEAMSTERS UNION LOCAL 760 OF YAKIMA,
WASHINGTON, BUT THIS YEAR, WHEN A NEW CONTRACT WAS BEING NEGOTIATED,
THE EMPLOYERS TOOK THE POSITION THAT MANY OF THE BASIC PROVISIONS OF
THE PRIOR CONTRACT, SUCH AS SENIORITY, OVERTIME, PROTECTION AGAINST
UNJUST DISCHARGE, GRIEVANCE PROCEDURE AND UNION SECURITY, SHOULD BE
WEAKENED OR ELIMINATED ENTIRELY.  THESE EXTREME DEMANDS PLUS A REFUSAL
TO BARGAIN IN GOOD FAITH LED TO A STRIKE AGAINST THE EMPLOYER.  THE
UNION MADE ALL POSSIBLE EFFORTS TO AVOID THIS STRIKE AS DID OUTSIDE
AGENCIES WHO WERE ASSISTING IN THE NEGOTIATIONS.  EVEN THE GOVERNOR OF
THE STATE OF WASHINGTON, THE HONORABLE ALBERT D. ROSELLINI, INTERVENED
AND SUGGESTED THAT THE PARTIES AGREE TO A FACT FINDING COMMITTEE OR
ARBITRATION.  THE UNION AGREED TO THESE PROPOSALS BUT THE EMPLOYERS
DECLINED. 

"THE EMPLOYER'S REFUSAL TO BARGAIN IN GOOD FAITH HAS CAUSED THE
SEATTLE OFFICE OF THE NATIONAL LABOR RELATIONS BOARD TO PREPARE A
COMPLAINT AGAINST THE EMPLOYERS, CHARGING THEM WITH UNFAIR LABOR
PRACTICES IN VIOLATION OF FEDERAL LAW. 

"THE STRIKE AT YAKIMA IS STILL CONTINUING AND IN ORDER TO WIN THIS
STRIKE, WE MUST ASK THE CONSUMING PUBLIC NOT TO PURCHASE WASHINGTON
STATE APPLES. 

"THEREFORE, WE ARE GOING TO PLACE PEACEFUL PICKETS AT THE ENTRANCES
TO YOUR STORE FOR THE PURPOSE OF TRYING TO PERSUADE THE PUBLIC NOT TO
BUY WASHINGTON APPLES.  THESE PICKETS ARE BEING INSTRUCTED TO PATROL
PEACEFULLY IN FRONT OF THE CONSUMER ENTRANCES OF THE STORE, TO STAY
AWAY FROM THE DELIVERY ENTRANCES AND NOT TO INTERFERE WITH THE WORK OF
YOUR EMPLOYEES, OR WITH DELIVERIES TO OR PICKUPS FROM YOUR STORE.  A
COPY OF THE INSTRUCTIONS WHICH HAVE BEEN FURNISHED TO THE PICKETS IS
ATTACHED HEREWITH. 

"WE DO NOT INTEND THAT ANY OF YOUR EMPLOYEES CEASE WORK AS A RESULT
OF THE PICKETING.  WE ASK THAT YOU ADVISE YOUR EMPLOYEES OF OUR
INTENTIONS IN THIS RESPECT, PERHAPS BY POSTING THIS NOTICE ON YOUR
STORE BULLETIN BOARD. 

"IF ANY OF YOUR EMPLOYEES SHOULD STOP WORK AS A RESULT OF OUR
PROGRAM, OR IF YOU SHOULD HAVE ANY DIFFICULTIES AS FAR AS PICKUPS AND
DELIVERIES ARE CONCERNED, OR IF YOU OBSERVE ANY OF THE PICKETS
DISOBEYING THE INSTRUCTIONS WHICH THEY HAVE BEEN GIVEN, PLEASE NOTIFY
THE UNDERSIGNED UNION REPRESENTATIVE AT ONCE AND WE WILL TAKE STEPS TO
SEE THAT THE SITUATION IS PROMPTLY CORRECTED. 

"AS NOTED ABOVE, OUR INFORMATION INDICATES THAT YOU ARE PRESENTLY
SELLING WASHINGTON STATE APPLES.   IF, HOWEVER, THIS INFORMATION IS NOT
CORRECT AND YOU ARE SELLING APPLES EXCLUSIVELY FROM ANOTHER STATE,
PLEASE NOTIFY THE UNDERSIGNED AND WE WILL SEE THAT THE PICKETS ARE
TRANSFERRED TO ANOTHER STORE WHERE WASHINGTON STATE APPLES ARE ACTUALLY
BEING SOLD. 

"THANK YOU FOR YOUR COOPERATION." 

THE INSTRUCTIONS TO PICKETS READ AS FOLLOWS:

              "INSTRUCTIONS TO PICKETS.  "DEAR PICKET: 

"YOU ARE BEING ASKED TO HELP PUBLICIZE A NATIONWIDE CONSUMER BOYCOTT
AIMED AT NON-UNION WASHINGTON STATE APPLES.  TO MAKE THIS PROGRAM A
SUCCESS YOUR COOPERATION IS ESSENTIAL.  PLEASE READ THESE INSTRUCTIONS
AND FOLLOW THEM CAREFULLY. 

"1.  AT ALL TIMES YOU ARE TO ENGAGE IN PEACEFUL PICKETING.  YOU ARE
FORBIDDEN TO ENGAGE IN ANY ALTERCATION, ARGUMENT, OR MISCONDUCT OF ANY
KIND. 

"2.  YOU ARE TO WALK BACK AND FORTH ON THE SIDEWALK IN FRONT OF THE
CONSUMER ENTRANCES TO THE GROCERY STORES.  IF A PARTICULAR STORE IS
LOCATED TOWARD THE REAR OF A PARKING LOT, YOU ARE TO ASK THE STORE
MANAGER FOR PERMISSION TO WALK BACK AND FORTH ON THE APRON OR SIDEWALK
IMMEDIATELY IN FRONT OF THE STORE; BUT IF HE DENIES YOU THIS
PERMISSION, YOU ARE TO PICKET ONLY ON THE PUBLIC SIDEWALK AT THE
ENTRANCES TO THE PARKING LOT.  AS FAR AS LARGE SHIPPING CENTERS ARE
CONCERNED, YOU WILL BE GIVEN SPECIAL INSTRUCTION FOR PICKETING IN SUCH
LOCATIONS. 

"3.  YOU ARE NOT TO PICKET IN FRONT OF OR IN THE AREA OF ANY ENTRANCE
TO THE STORE WHICH IS APPARENTLY SET ASIDE FOR THE USE OF STORE
EMPLOYEES AND DELIVERY MEN.  AS NOTED ABOVE, YOU ARE TO LIMIT YOUR
PICKETING TO THE CONSUMER ENTRANCES TO THE STORE. 

"4.  THIS UNION HAS NO DISPUTE WITH THE GROCERY STORES, AND YOU ARE
FORBIDDEN TO MAKE ANY STATEMENT TO THE EFFECT THAT THE STORE IS UNFAIR
OR ON STRIKE.  YOU ARE ALSO FORBIDDEN TO REQUEST THAT THE CUSTOMERS NOT
PATRONIZE THE STORE.  WE ARE ONLY ASKING THAT THE CUSTOMERS NOT BUY
WASHINGTON STATE APPLES, WHEN THEY ARE SHOPPING AT THE STORE. 

"5.  SIMILARLY, YOU ARE NOT TO INTERFERE WITH THE WORK OF ANY
EMPLOYEES IN THE STORE.  IF YOU ARE ASKED BY THESE EMPLOYEES WHAT THE
PICKETING IS ABOUT, YOU ARE TO TELL THEM IT IS AN ADVERTISING OR
CONSUMER PICKET AND THAT THEY SHOULD KEEP WORKING.  LIKEWISE IF YOU ARE
ASKED BY ANY TRUCK DRIVERS WHO ARE MAKING PICKUPS OR DELIVERIES WHAT
THE PICKET IS ABOUT, YOU ARE TO ADVISE THAT IT IS AN ADVERTISING OR
CONSUMER PICKET AND THAT IT IS NOT INTENDED TO INTERFERE WITH PICKUPS
OR DELIVERIES (I.E. THAT THEY ARE FREE TO GO THROUGH). 

"6.  IF YOU ARE GIVEN HANDBILLS TO DISTRIBUTE, PLEASE DISTRIBUTE
THESE HANDBILLS IN A COURTEOUS MANNER AND IF THE CUSTOMERS THROW THEM
ON THE GROUND, PLEASE SEE THAT THEY ARE PICKED UP AT ONCE AND THAT THE
AREA IS KEPT CLEAN. 

"7.  YOU ARE FORBIDDEN TO USE INTOXICATING BEVERAGES WHILE ON DUTY OR
TO HAVE SUCH BEVERAGES ON YOUR PERSON. 

"8.  IF A STATE OFFICIAL OR ANY OTHER PRIVATE PARTY SHOULD COMPLAIN
TO YOU ABOUT THE PICKETING, ADVISE THEM YOU HAVE YOUR INSTRUCTIONS AND
THAT THEIR COMPLAINTS SHOULD BE REGISTERED WITH THE UNDERSIGNED UNION
REPRESENTATIVE. 

"9.  THESE INSTRUCTIONS SHOULD ANSWER MOST OF YOUR QUESTIONS
CONCERNING THIS PROGRAM.  HOWEVER, IF YOU HAVE ANY ADDITIONAL QUESTIONS
OR IF SPECIFIC PROBLEMS ARISE WHICH REQUIRE ADDITIONAL INSTRUCTIONS,
PLEASE CALL THE UNDERSIGNED." 

MR. JUSTICE BLACK, CONCURRING. 

BECAUSE OF THE LANGUAGE OF SEC 8(B)(4)(II)(B) OF THE NATIONAL LABOR
RELATIONS ACT AND THE LEGISLATIVE HISTORY SET OUT IN THE OPINIONS OF
THE COURT AND OF MY BROTHER HARLAN, I FEEL IMPELLED TO HOLD THAT
CONGRESS, IN PASSING THIS SECTION OF THE ACT, INTENDED TO FORBID THE
STRIKING EMPLOYEES OF ONE BUSINESS TO PICKET THE PREMISES OF A NEUTRAL
BUSINESS WHERE THE PURPOSE OF THE PICKETING IS TO PERSUADE CUSTOMERS OF
THE NEUTRAL BUSINESS NOT TO BUY GOODS SUPPLIED BY THE STRUCK EMPLOYER. 
CONSTRUED IN THIS WAY, AS I AGREE WITH BROTHER HARLAN THAT IT MUST BE,
I BELIEVE, CONTRARY TO HIS VIEW, THAT THE SECTION ABRIDGES FREEDOM OF
SPEECH AND PRESS IN VIOLATION OF THE FIRST AMENDMENT. 

"PICKETING," IN COMMON PARLANCE AND IN SEC 8(B)(4)(II)(B), INCLUDES
AT LEAST TWO CONCEPTS: (1) PATROLLING, THAT IS, STANDING OR MARCHING
BACK AND FORTH OR ROUND AND ROUND ON THE STREETS, SIDEWALKS, PRIVATE
PROPERTY, OR ELSEWHERE, GENERALLY ADJACENT TO SOMEONE ELSE'S PREMISES;
(2) SPEECH, THAT IS, ARGUMENTS, USUALLY ON A PLACARD, MADE TO PERSUADE
OTHER PEOPLE TO TAKE THE PICKETERS' SIDE OF A CONTROVERSY.  SEE MR.
JUSTICE DOUGLAS CONCURRING IN BAKERY & PASTRY DRIVERS V. WOHL, 315 U.S.
769, 775.  SEE ALSO HUGHES V. SUPERIOR COURT, 339 U.S. 460, 464-465,
AND CONCURRING OPINIONS AT 469.  WHILE "THE DISSEMINATION OF
INFORMATION CONCERNING THE FACTS OF A LABOR DISPUTE MUST BE REGARDED AS
WITHIN THAT AREA OF FREE DISCUSSION THAT IS GUARANTEED BY THE
CONSTITUTION," THORNHILL V. ALABAMA, 310 U.S. 88, 102, PATROLLING IS,
OF COURSE, CONDUCT, NOT SPEECH, AND THEREFORE IS NOT DIRECTLY PROTECTED
BY THE FIRST AMENDMENT.  IT IS BECAUSE PICKETING INCLUDES PATROLLING
THAT NEITHER THORNHILL NOR CASES THAT FOLLOWED IT LEND "SUPPORT TO THE
CONTENTION THAT PEACEFUL PICKETING IS BEYOND LEGISLATIVE CONTROL." 
GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490, 499-500.  CF.
SCHNEIDER V. STATE, 308 U.S. 147, 160-161.  (FN1) HOWEVER, WHEN CONDUCT
NOT CONSTITUTIONALLY PROTECTED, LIKE PATROLLING, IS INTERTWINED, AS IN
PICKETING, WITH CONSTITUTIONALLY PROTECTED FREE SPEECH AND PRESS,
REGULATION OF THE NON-PROTECTED CONDUCT MAY AT THE SAME TIME ENCROACH
ON FREEDOM OF SPEECH AND PRESS.  IN SUCH CASES IT IS ESTABLISHED THAT
IT IS THE DUTY OF COURTS, BEFORE UPHOLDING REGULATIONS OF PATROLLING,
"TO WEIGH THE CIRCUMSTANCES AND TO APPRAISE THE SUBSTANTIALITY OF THE
REASONS ADVANCED IN SUPPORT OF THE REGULATION OF THE FREE ENJOYMENT OF
THE RIGHTS" OF SPEECH AND PRESS.  SCHNEIDER V. STATE, 308 U.S., SUPRA,
AT 161.  SEE ALSO, E.G., N.A.A.C.P. V. ALABAMA EX REL. PATTERSON, 357
U.S. 449, 460-462; N.A.A.C.P. V. BUTTON, 371 U.S. 415, 438-439. 

EVEN ASSUMING THAT THE FEDERAL GOVERNMENT HAS POWER TO BAR OR
OTHERWISE REGULATE PATROLLING BY PERSONS ON LOCAL STREETS OR ADJACENT
TO LOCAL BUSINESS PREMISES IN THE STATE OF WASHINGTON,  (FN2) IT IS
DIFFICULT TO SEE THAT THE SECTION IN QUESTION INTENDS TO DO ANYTHING
BUT PREVENT DISSEMINATION OF INFORMATION ABOUT THE FACTS OF A LABOR
DISPUTE - A RIGHT PROTECTED BY THE FIRST AMENDMENT.  IT WOULD BE
DIFFERENT (AGAIN ASSUMING FEDERAL POWER) IF CONGRESS HAD SIMPLY BARRED
OR REGULATED ALL PATROLLING OF EVERY KIND FOR EVERY PURPOSE IN ORDER TO
KEEP THE STREETS AROUND INTERSTATE BUSINESSES OPEN FOR MOVEMENT OF
PEOPLE AND PROPERTY, SCHNEIDER V. STATE, SUPRA, AT 160-161; OR TO
PROMOTE THE PUBLIC SAFETY, PEACE, COMFORT, OR CONVENIENCE, CANTWELL V.
CONNECTICUT, 310 U.S. 296, 304; OR TO PROTECT PEOPLE FROM VIOLENCE AND
BREACHES OF THE PEACE BY THOSE WHO ARE PATROLLING, THORNHILL V.
ALABAMA, SUPRA, AT 105.  HERE THE SECTION AGAINST PICKETING WAS NOT
PASSED FOR ANY OF THESE REASONS.   THE STATUTE IN NO WAY MANIFESTS ANY
GOVERNMENT INTEREST AGAINST PATROLLING AS SUCH, SINCE THE ONLY
PATROLLING IT SEEKS TO MAKE UNLAWFUL IS THAT WHICH IS CARRIED ON TO
ADVISE THE PUBLIC, INCLUDING CONSUMERS, THAT CERTAIN PRODUCTS HAVE BEEN
PRODUCED BY AN EMPLOYER WITH WHOM THE PICKETERS HAVE A DISPUTE.  ALL
WHO DO NOT PATROL TO PUBLICIZE THIS KIND OF DISPUTE ARE, SO FAR AS THIS
THE SECTION IS AIMED AT OUTLAWING FREE DISCUSSION OF ONE SIDE OF A
CERTAIN KIND OF LABOR DISPUTE AND CANNOT BE SUSTAINED AS A PERMISSIBLE
REGULATION OF PATROLLING.  CF. CARLSON V. CALIFORNIA, 310 U.S. 106,
112. 

NOR CAN THE SECTION BE SUSTAINED ON THE GROUND THAT IT MERELY FORBIDS
PICKETERS TO HELP CARRY OUT AN UNLAWFUL OR CRIMINAL UNDERTAKING. 
COMPARE GIBONEY V. EMPIRE STORAGE & ICE CO., SUPRA.  FOR THE SECTION
ITSELF CONTAINS A PROVISO WHICH SAYS THAT IT SHALL NOT BE CONSTRUED "TO
PROHIBIT PUBLICITY, OTHER THAN PICKETING, FOR THE PURPOSE OF TRUTHFULLY
ADVISING THE PUBLIC, INCLUDING CONSUMERS  ... THAT A PRODUCT OR
PRODUCTS ARE PRODUCED BY AN EMPLOYER WITH WHOM  ...  THE PICKETERS HAVE
A PRIMARY DISPUTE  ...  ."  THUS, IT IS CLEAR THAT THE OBJECT OF THE
PICKETING WAS TO ASK SAFEWAY CUSTOMERS TO DO SOMETHING WHICH THE
LEFT FREE TO PICKET FOR OTHER REASONS, THOSE WHO WISH TO PICKET TO
INFORM SAFEWAY CUSTOMERS OF THEIR LABOR DISPUTE WITH THE PRIMARY
EMPLOYER, ARE BARRED FROM PICKETING - SOLELY ON THE GROUND OF THE
LAWFUL INFORMATION THEY WANT TO IMPART TO THE CUSTOMERS. 

IN SHORT, WE HAVE NEITHER A CASE IN WHICH PICKETING IS BANNED BECAUSE
THE PICKETERS ARE ASKING OTHERS TO DO SOMETHING UNLAWFUL NOR A CASE IN
WHICH ALL PICKETING IS, FOR REASONS OF PUBLIC ORDER, BANNED.  INSTEAD,
WE HAVE A CASE IN WHICH PICKETING, OTHERWISE LAWFUL, IS BANNED ONLY
WHEN THE PICKETERS EXPRESS PARTICULAR VIEWS.  THE RESULT IS AN
ABRIDGMENT OF THE FREEDOM OF THESE PICKETERS TO TELL A PART OF THE
PUBLIC THEIR SIDE OF A LABOR CONTROVERSY, A SUBJECT THE FREE DISCUSSION
OF WHICH IS PROTECTED BY THE FIRST AMENDMENT.    I CANNOT ACCEPT MY
BROTHER HARLAN'S VIEW THAT THE ABRIDGMENT OF SPEECH AND PRESS HERE DOES
NOT VIOLATE THE FIRST AMENDMENT BECAUSE OTHER METHODS OF COMMUNICATION
ARE LEFT OPEN.  THIS REASON FOR ABRIDGMENT STRIKES ME AS BEING ON A PAR
WITH HOLDING THAT GOVERNMENTAL SUPPRESSION OF A NEWSPAPER IN A CITY
WOULD NOT VIOLATE THE FIRST AMENDMENT BECAUSE THERE CONTINUE TO BE
RADIO AND TELEVISION STATIONS.  FIRST AMENDMENT FREEDOMS CAN NO MORE
VALIDLY BE TAKEN AWAY BY DEGREES THAN BY ONE FELL SWOOP. 

FOR THESE REASONS I CONCUR IN THE JUDGMENT OF THE COURT VACATING THE
JUDGMENT OF THE COURT OF APPEALS AND REMANDING THE CASE WITH DIRECTIONS
TO ENTER JUDGMENT SETTING ASIDE THE BOARD'S ORDER. 

FN1  THORNHILL V. ALABAMA AND CARLSON V. CALIFORNIA, 310 U.S. 106,
CAME DOWN THE SAME DAY.  NEITHER HELD THAT PICKETING WAS
CONSTITUTIONALLY IMMUNE FROM LEGISLATIVE REGULATION OR COMPLETE
PROSCRIPTION.  THORNHILL HELD THAT A STATUTE AGAINST PICKETING WAS TOO
BROAD, INEXACT, AND IMPRECISE TO BE ENFORCEABLE, AND CARLSON HELD, 310
U.S., AT 112, "THE SWEEPING AND INEXACT TERMS OF THE ORDINANCE DISCLOSE
THE THREAT TO FREEDOM OF SPEECH INHERENT IN ITS EXISTENCE."  THIS
PRINCIPLE OF THORNHILL AND CARLSON HAS BEEN UNIFORMLY FOLLOWED.  SEE,
E.G., EDWARDS V. SOUTH CAROLINA, 372 U.S. 229; HENRY V. CITY OF ROCK
HILL, 376 U.S. 776. 

FN2  "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."  SCHNEIDER V. STATE, 308 U.S. 147, 160.  CF.  ALLEN-BRADLEY
LOCAL NO. 1111 V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 315 U.S. 740,
749. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THE QUESTION IN THIS CASE IS WHETHER A UNION INVOLVED IN A LABOR
DISPUTE WITH AN EMPLOYER MAY LAWFULLY ENGAGE IN PEACEFUL PICKETING AT
THE PREMISES OF ANOTHER EMPLOYER IN ORDER TO DISSUADE ITS CUSTOMERS
FROM PURCHASING PRODUCTS OF THE FIRST EMPLOYER DEALT IN BY THE PICKETED
ESTABLISHMENT.  SUCH ACTIVITY, IN THE PARLANCE OF LABOR LAW, IS KNOWN
AS SECONDARY CONSUMER PICKETING, THE PICKETED EMPLOYER BEING CALLED THE
"SECONDARY EMPLOYER" AND THE OTHER THE "PRIMARY EMPLOYER." 

THE QUESTION IS CONTROLLED BY SEC 8(B) OF THE NATIONAL LABOR
RELATIONS ACT  (FN1)  WHICH MAKES IT AN UNFAIR LABOR PRACTICE FOR A
UNION: 

"(4)  ...  (II) TO THREATEN, COERCE, OR RESTRAIN ANY PERSON ENGAGED
IN COMMERCE  ...  WHERE  ... AN OBJECT  ...  IS  ...  (B) FORCING OR
REQUIRING ANY PERSON TO CEASE USING, SELLING  ...  OR OTHERWISE DEALING
IN THE PRODUCTS OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR
TO CEASE DOING BUSINESS WITH ANY OTHER PERSON  ...  ." 

WITH A PROVISO THAT: 

"NOTHING CONTAINED IN  ...  THE ABOVE PROVISIONS SHALL BE CONSTRUED
TO PROHIBIT PUBLICITY, OTHER THAN PICKETING, FOR THE PURPOSE OF
TRUTHFULLY ADVISING THE PUBLIC, INCLUDING CONSUMERS  ...  THAT A
PRODUCT OR PRODUCTS ARE PRODUCED BY AN EMPLOYER WITH WHOM  ...  THE
UNION HAS A PRIMARY DISPUTE AND ARE DISTRIBUTED BY ANOTHER EMPLOYER, AS
LONG AS SUCH PUBLICITY DOES NOT HAVE AN EFFECT OF INDUCING ANY
INDIVIDUAL EMPLOYED BY ANY PERSON OTHER THAN THE PRIMARY EMPLOYER IN
THE COURSE OF HIS EMPLOYMENT TO REFUSE TO PICK UP, DELIVER, OR
TRANSPORT ANY GOODS, OR NOT TO PERFORM ANY SERVICES, AT THE
ESTABLISHMENT OF THE EMPLOYER ENGAGED IN SUCH DISTRIBUTION  ...  ." 

THE LABOR BOARD FOUND THE UNION'S PICKETING AT SAFEWAY STORES, THOUGH
PEACEFUL, UNLAWFUL PER SE UNDER SEC 8(B)(4)(II)(B), AND ISSUED AN
APPROPRIATE ORDER.  THE COURT OF APPEALS REVERSED, HOLDING THE
PICKETING LAWFUL IN THE ABSENCE OF ANY SHOWING THAT SAFEWAY HAD IN FACT
BEEN "THREATENED, COERCED, OR RESTRAINED" (113 U.S. APP. D.C. 356, 360
363, 308 F.2D 311, AT PP. 315-318), AND REMANDED THE CASE TO THE BOARD
FOR FURTHER PROCEEDINGS.  THIS COURT NOW REJECTS (CORRECTLY, I BELIEVE)
THE COURT OF APPEALS' HOLDING, BUT NEVERTHELESS REFUSED TO ENFORCE THE
BOARD'S ORDER.  IT HOLDS THAT ALTHOUGH SEC 8(B)(4)(II)(B) DOES
AUTOMATICALLY OUTLAW PEACEFUL SECONDARY CONSUMER PICKETING AIMED AT ALL
PRODUCTS HANDLED BY A SECONDARY EMPLOYER, CONGRESS HAS NOT, WITH "THE
REQUISITE CLARITY" (ANTE, P. 63), EVINCED A PURPOSE TO PROHIBIT SUCH
PICKETING WHEN DIRECTED ONLY AT THE PRODUCTS OF THE PRIMARY EMPLOYER. 
HERE THE UNION'S PICKETING RELATED ONLY TO WASHINGTON APPLES, NOT TO
ALL PRODUCTS CARRIED BY SAFEWAY. 

BEING UNABLE TO DISCERN IN SEC 8(B)(4)(II)(B) OR IN ITS LEGISLATIVE
HISTORY ANY BASIS FOR THE COURT'S SUBTLE NARROWING OF THESE STATUTORY
PROVISIONS, I MUST RESPECTFULLY DISSENT. 

                                     I. 

THE UNION'S ACTIVITIES ARE PLAINLY WITHIN THE LETTER OF SUBDIVISION
(4)(II)(B) OF SEC 8(B), AND INDEED THE COURT'S OPINION VIRTUALLY
CONCEDES THAT MUCH (ANTE, PP. 71-72).  CERTAINLY SAFEWAY IS A "PERSON"
AS DEFINED IN THOSE SUBDIVISIONS; INDUBITABLY "AN OBJECT" OF THE
UNION'S CONDUCT WAS THE "FORCING OR REQUIRING" OF SAFEWAY, THROUGH THE
PICKETING OF ITS CUSTOMERS, "TO CEASE  ...  SELLING, HANDLING  ...  OR
OTHERWISE DEALING IN" WASHINGTON APPLES, "THE PRODUCTS OF" ANOTHER
"PRODUCER"; AND CONSUMER PICKETING IS EXPRESSLY EXCLUDED FROM THE
AMELIORATIVE PROVISIONS OF THE PROVISO.  SEE SUPRA, PP. 80-81. 

NOTHING IN THE STATUTE LENDS SUPPORT TO THE FINE DISTINCTION WHICH
THE COURT DRAWS BETWEEN GENERAL AND LIMITED PRODUCT PICKETING.  THE
ENACTMENT SPEAKS PERVASIVELY OF THREATENING, COERCING, OR RESTRAINING
ANY PERSON; THE PROVISO DIFFERENTIATES ONLY BETWEEN MODES OF
EXPRESSION, NOT BETWEEN TYPES OF SECONDARY CONSUMER PICKETING.  FOR ME,
THE COURT'S ARGUMENT TO THE CONTRARY IS VERY UNCONVINCING. 

THE DIFFERENCE TO WHICH THE COURT POINTS BETWEEN A SECONDARY EMPLOYER
MERELY LOWERING HIS PURCHASES OF THE STRUCK PRODUCT TO THE DEGREE OF
DECREASED CONSUMER DEMAND AND SUCH AN EMPLOYER CEASING TO PURCHASE ONE
PRODUCT BECAUSE OF CONSUMER REFUSAL TO BUY ANY PRODUCTS, IS SURELY TOO
REFINED IN THE CONTEXT OF REALITY.  IT CAN HARDLY BE SUPPOSED THAT IN
ALL, OR EVEN MOST, INSTANCES THE RESULT OF THE TYPE OF PICKETING
INVOLVED HERE WILL BE SIMPLY THAT SUGGESTED BY THE COURT.  BECAUSE OF
THE VERY NATURE OF PICKETING THERE MAY BE NUMBERS OF PERSONS WHO WILL
REFUSE TO BUY AT ALL FROM A PICKETED STORE, EITHER OUT OF ECONOMIC OR
SOCIAL CONVICTION OR BECAUSE THEY PREFER TO SHOP WHERE THEY NEED NOT
BRAVE A PICKET LINE.  MOREOVER, THE PUBLIC CAN HARDLY BE EXPECTED
ALWAYS TO KNOW OR ASCERTAIN THE PRECISE SCOPE OF A PARTICULAR PICKETING
OPERATION.  THUS IN CASES LIKE THIS, THE EFFECT ON THE SECONDARY
EMPLOYER MAY NOT ALWAYS BE LIMITED TO A DECREASE IN HIS SALES OF THE
STRUCK PRODUCT.  AND EVEN WHEN THAT IS THE EFFECT, THE EMPLOYER MAY,
RATHER THAN SIMPLY REDUCING PURCHASES FROM THE PRIMARY EMPLOYER, DEEM
IT MORE EXPEDIENT TO TURN TO ANOTHER PRODUCER WHOSE PRODUCT IS APPROVED
BY THE UNION. 

THE DISTINCTION DRAWN BY THE MAJORITY BECOMES EVEN MORE TENUOUS IF A
PICKETED RETAILER DEPENDS LARGELY OR ENTIRELY ON SALES OF THE STRUCK
PRODUCT.  IF, FOR EXAMPLE, AN INDEPENDENT GAS STATION OWNER SELLS
GASOLINE PURCHASED FROM A STRUCK GASOLINE COMPANY, ONE WOULD NOT
SUPPOSE HE WOULD FEEL LESS THREATENED, COERCED, OR RESTRAINED BY PICKET
SIGNS WHICH SAID "DO NOT BUY X GASOLINE" THAN BY SIGNS WHICH SAID "DO
NOT PATRONIZE THIS GAS STATION."  TO BE SURE SAFEWAY IS A MULTIPLE
ARTICLE SELLER, BUT IT CANNOT WELL BE GAINSAID THAT THE RULE LAID DOWN
BY THE COURT WOULD BE UNWORKABLE IF ITS APPLICABILITY TURNED ON A
CALCULATION OF THE RELATION BETWEEN TOTAL INCOME OF THE SECONDARY
EMPLOYER AND INCOME FROM THE STRUCK PRODUCT. 

THE COURT INFORMS US THAT "PEACEFUL CONSUMER PICKETING TO SHUT OFF
ALL TRADE WITH THE SECONDARY EMPLOYER UNLESS HE AIDS THE UNION IN ITS
DISPUTE WITH THE PRIMARY EMPLOYER, IS POLES APART FROM SUCH PICKETING
WHICH ONLY PERSUADES HIS CUSTOMERS NOT TO BUY THE STRUCK PRODUCT,"
ANTE, P. 70.  THE DIFFERENCE WAS, IT IS STATED, "WELL ESTABLISHED IN
THE STATE CASES BY 1940," ANTE, P. 64, NOTE 7, THAT IS, BEFORE THE
PRESENT FEDERAL ENACTMENT.  IN LIGHT OF THESE ASSERTIONS, IT IS INDEED
REMARKABLE THAT THE COURT NOT ONLY SUBSTANTIALLY ACKNOWLEDGES THAT THE
STATUTORY LANGUAGE DOES NOT ITSELF SUPPORT THIS DISTINCTION (ANTE, PP.
71-72)  (FN2)  BUT CITES NO REPORT OF CONGRESS, NO STATEMENT OF A
LEGISLATOR, NOT EVEN THE VIEW OF ANY OF THE MANY COMMENTATORS IN THE
AREA, IN ANY WAY CASTING DOUBT ON THE APPLICABILITY OF SEC
8(B)(4)(II)(B) TO PICKETING OF THE KIND INVOLVED HERE. 

II. 

THE COURT'S DISTINCTION FARES NO BETTER WHEN THE LEGISLATIVE HISTORY
OF SEC 8(B)(4)(II)(B) IS EXAMINED.  EVEN THOUGH THERE IS NO SENATE,
HOUSE, OR CONFERENCE REPORT WHICH SHEDS LIGHT ON THE MATTER, THAT
HARDLY EXCUSES THE COURT'S BLINDING ITSELF TO WHAT THE LEGISLATIVE AND
OTHER BACKGROUND MATERIALS DO SHOW.  FAIRLY ASSESSED THEY, IN MY
OPINION, BELIE CONGRESS' HAVING MADE THE DISTINCTION UPON WHICH THE
COURT'S THESIS RESTS.  NOR CAN THE COURT FIND COMFORT IN THE
GENERALIZATION THAT " 'IN THE SENSITIVE AREA OF PEACEFUL PICKETING
CONGRESS HAS DEALT EXPLICITLY WITH ISOLATED EVILS WHICH EXPERIENCE HAS
ESTABLISHED FLOW FROM SUCH PICKETING'" (ANTE, PP. 62-63); IN ENACTING
THE PROVISIONS IN QUESTION CONGRESS WAS ADDRESSING ITSELF TO A
PARTICULAR FACET OF SECONDARY BOYCOTTING NOT DEALT WITH IN PRIOR
LEGISLATION, NAMELY, PEACEFUL SECONDARY CONSUMER PICKETING.  I NOW TURN
TO THE MATERIALS WHICH ILLUMINATE WHAT CONGRESS HAD IN MIND. 

IT IS CLEAR THAT CONSUMER PICKETING IN CONNECTION WITH SECONDARY
BOYCOTTING WAS AT THE FOREFRONT OF THE PROBLEMS WHICH LED TO THE
AMENDING OF THE TAFT-HARTLEY ACT BY THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959.  SEE, E.G., REMARKS OF SENATOR MCCLELLAN, 105
CONG.  REC. 3951, II LEG.  HIST. 1007; REMARKS OF CONGRESSMAN LAFORE,
105 CONG. REC. 3928, II LEG.  HIST. 1471; REMARKS OF CONGRESSMAN
GRIFFIN, INFRA, NOTE 4.  DURING SENATE DEBATE BEFORE PASSAGE OF THE
KENNEDY-ERVIN BILL, SENATOR HUMPHREY CRITICIZED AN AMENDMENT PROPOSED
BY SENATOR GOLDWATER TO SEC 8(B)(4) OF THE TAFT-HARTLEY ACT, WHICH
REFLECTED THE POSITION OF THE ADMINISTRATION AND WAS INCORPORATED IN
SUBSTANCE IN THE LANDRUM-GRIFFIN BILL PASSED BY THE HOUSE.  HE SAID: 

"TO DISTRIBUTE LEAFLETS AT THE PREMISES OF A NEUTRAL EMPLOYER TO
PERSUADE CUSTOMERS NOT TO BUY A STRUCK PRODUCT IS ONE FORM OF CONSUMER
APPEAL.  TO PEACEFULLY PICKET THE CUSTOMER ENTRANCES, WITH A PLACARD
ASKING THAT THE STRUCK PRODUCT NOT BE BOUGHT, IS ANOTHER FORM.  I FEAR
THAT CONSUMER PICKETING MAY ALSO BE THE TARGET OF THE WORDS 'COERCE, OR
RESTRAIN.'  I FEAR THAT, IN ADDITION TO THE EXISTING FORECLOSURE OF THE
UNION ON STRIKE FROM MAKING ANY EFFECTIVE APPEAL TO THE EMPLOYEES OF
THE SO-CALLED NEUTRAL EMPLOYER, THE UNION BY THIS AMENDMENT IS NOW TO
BE EFFECTIVELY SEALED OFF FROM EVEN AN APPEAL TO THE CONSUMERS."  105
CONG. REC. 6232, II LEG.  HIST.  1037. 

REPORTING ON THE COMPROMISE REACHED BY THE CONFERENCE COMMITTEE ON
THE KENNEDY-ERVIN AND LANDRUM-GRIFFIN BILLS, SENATOR KENNEDY, WHO
CHAIRED THE CONFERENCE COMMITTEE STATED: 

"THE HOUSE BILL PROHIBITED THE UNION FROM CARRYING ON ANY KIND OF
ACTIVITY TO DISSEMINATE INFORMATIONAL MATERIAL TO SECONDARY SITES. 
THEY COULD NOT SAY THAT THERE WAS A STRIKE IN A PRIMARY PLANT  ...  .
UNDER THE LANGUAGE OF THE CONFERENCE, ULTIMATELY RESULTING IN PRESENT
SEC 8(B)(4)(II)(B), WE AGREED THERE WOULD NOT BE PICKETING AT A
SECONDARY SITE.  WHAT WAS PERMITTED WAS THE GIVING OUT OF HANDBILLS OR
INFORMATION THROUGH THE RADIO AND SO FORTH."  105 CONG. REC. 17720, II
LEG.  HIST.  1389. 

SENATOR MORSE, ONE DAY LATER, EXPLAINED QUITE EXPLICITLY HIS
OBJECTION TO THE RELEVANT PORTION OF THE BILL REPORTED OUT OF THE
CONFERENCE COMMITTEE, OF WHICH HE WAS A MEMBER: 

"THIS BILL DOES NOT STOP WITH THREATS AND WITH ILLEGALIZING THE HOT
CARGO AGREEMENT.  IT ALSO MAKES IT ILLEGAL FOR A UNION TO 'COERCE, OR
RESTRAIN.'  THIS PROHIBITS CONSUMER PICKETING.  WHAT IS CONSUMER
PICKETING?  A SHOE MANUFACTURER SELLS HIS PRODUCT THROUGH A DEPARTMENT
STORE.  THE EMPLOYEES OF THE SHOE MANUFACTURER GO ON STRIKE FOR HIGHER
WAGES.  THE EMPLOYEES, IN ADDITION TO PICKETING THE MANUFACTURER, ALSO
PICKET AT THE PREMISES OF THE DEPARTMENT STORE WITH A SIGN SAYING, 'DO
NOT BUY X SHOES.'  THIS IS CONSUMER PICKETING, AN APPEAL TO THE PUBLIC
NOT TO BUY THE PRODUCT OF A STRUCK MANUFACTURER."  105 CONG. REC.
17882, II LEG.  HIST.  1426.  (FN3) 

LATER THE SAME DAY, SENATOR KENNEDY SPOKE FURTHER ON THE CONFERENCE
BILL AND PARTICULARIZED THE UNION RIGHTS PROTECTED BY THE SENATE
CONFEREES: 

"(C) THE RIGHT TO APPEAL TO CONSUMERS BY METHODS OTHER THAN PICKETING
ASKING THEM TO REFRAIN FROM BUYING GOODS MADE BY NONUNION LABOR AND TO
REFRAIN FROM TRADING WITH A RETAILER WHO SELLS SUCH GOODS. 

"UNDER THE LANDRUM-GRIFFIN BILL IT WOULD HAVE BEEN IMPOSSIBLE FOR A
UNION TO INFORM THE CUSTOMERS OF A SECONDARY EMPLOYER THAT THAT
EMPLOYER OR STORE WAS SELLING GOODS WHICH WERE MADE UNDER RACKET
CONDITIONS OR SWEATSHOP CONDITIONS, OR IN A PLANT WHERE AN ECONOMIC
STRIKE WAS IN PROGRESS.  WE WERE NOT ABLE TO PERSUADE THE HOUSE
CONFEREES TO PERMIT PICKETING IN FRONT OF THAT SECONDARY SHOP, BUT WE
WERE ABLE TO PERSUADE THEM TO AGREE THAT THE UNION SHALL BE FREE TO
CONDUCT INFORMATIONAL ACTIVITY SHORT OF PICKETING.  IN OTHER WORDS, THE
UNION CAN HAND OUT HANDBILLS AT THE SHOP, CAN PLACE ADVERTISEMENTS IN
NEWSPAPERS, CAN MAKE ANNOUNCEMENTS OVER THE RADIO, AND CAN CARRY ON ALL
PUBLICITY SHORT OF HAVING AMBULATORY PICKETING IN FRONT OF A SECONDARY
SITE."  105 CONG. REC. 17898-17899, II LEG.  HIST.  1432.    THE COURT
DOES NOT CONSIDER ITSELF COMPELLED BY THESE REMARKS TO CONCLUDE THAT
THE CONFERENCE COMMITTEE MEANT TO PROHIBIT ALL SECONDARY CONSUMER
PICKETING.  A FAIR READING OF THESE COMMENTS, HOWEVER, CAN HARDLY LEAVE
ONE SERIOUSLY IN DOUBT THAT SENATOR KENNEDY BELIEVED THIS TO BE
PRECISELY WHAT THE COMMITTEE HAD DONE; THE COURT'S ADDED EMPHASIS ON
THE WORD "AND" (ANTE, P. 70) IS, I SUBMIT, SIMPLY GRASPING AT STRAWS,
IF INDEED THE PHRASE RELIED ON DOES NOT EQUALLY WELL LEND ITSELF TO A
DISJUNCTIVE READING.  CF. DESYLVA V. BALLENTINE, 351 U.S. 570, 573. 
THE COMPLICATED ROLE THE COURT ASSIGNS TO THE PUBLICITY PROVISO (ANTE,
PP. 70-71) MAKES EVEN LESS UNDERSTANDABLE ITS FAILURE TO ACCORD TO THE
REMARKS OF SENATOR KENNEDY THEIR PROPER DUE.  THE PROVISO, ACCORDING TO
THE COURT'S INTERPRETATION, IS UNNECESSARY IN REGARD TO PICKETING
DESIGNED TO EFFECT A BOYCOTT OF THE PRIMARY PRODUCT AND COMES INTO PLAY
ONLY IF A COMPLETE BOYCOTT OF THE SECONDARY EMPLOYER IS SOUGHT.  HAD
THIS INGENIOUS INTERPRETATION BEEN INTENDED, WOULD NOT SENATOR KENNEDY,
WHO WAS AT PAINS TO EMPHASIZE THE SCOPE OF ACTIVITIES STILL LEFT TO
UNIONS, HAVE USED IT TO REFUTE THE CRITICISMS OF SENATOR MORSE MADE
ONLY SHORTLY BEFORE? 

FURTHER, SENATOR GOLDWATER SPOKE IN FAVOR OF THE CONFERENCE BILL AND
POINTED OUT THAT IN CONTRAST TO THE SENATE BILL, WHICH HE HAD OPPOSED,
"THE HOUSE BILL  ...  CLOSED UP EVERY LOOPHOLE IN THE BOYCOTT SECTION
OF THE LAW INCLUDING THE USE OF A SECONDARY CONSUMER PICKET LINE  ...
."  105 CONG. REC. 17904, II LEG.  HIST.  1437. 

THE COURT POINTS OUT THAT THE SENATE HAD NO CONFERENCE REPORT WHEN IT
PASSED THE COMPROMISE BILL AND THAT IT HAD ONLY SENATOR KENNEDY'S
STATEMENT OF THE PURPOSE OF THE PROVISO.  (ANTE, PP.  69-70.)   BUT I
AM WHOLLY AT A LOSS TO UNDERSTAND HOW ON THAT PREMISE (PARTICULARLY
WHEN SENATOR KENNEDY'S REMARKS ARE SUPPLEMENTED BY THE COMMENTS OF ONE
SENATOR (MORSE) WHO THOUGHT THE FINAL BILL TOO HARSH AND THOSE OF
ANOTHER (GOLDWATER) WHO BELIEVED THE SENATE BILL TOO WEAK) ONE CAN
CONCLUDE THAT THE MEMBERS OF THE SENATE DID NOT MEAN BY THEIR VOTE TO
OUTLAW ALL KINDS OF SECONDARY COMSUMER PICKETING. 

A READING OF PROCEEDINGS IN THE HOUSE OF REPRESENTATIVES LEADS TO A
SIMILAR CONCLUSION REGARDING THE INTENT OF THAT BODY.  IN CRITICISM OF
THE LANDRUM-GRIFFIN BILL, CONGRESSMAN MADDEN STATED, "IT WOULD PROHIBIT
ANY UNION FROM ADVISING THE PUBLIC THAT AN EMPLOYER IS UNFAIR TO LABOR,
PAYS SUBSTANDARD WAGES, OR OPERATES A SWEATSHOP  ...  ."  105 CONG.
REC.  15515, II LEG.  HIST.  1552. SINCE THE THEORY OF THE MAJORITY
REGARDING THE PUBLICITY PROVISO ADOPTED BY THE CONFERENCE IS THAT IT IS
REDUNDANT IN SITUATIONS WHERE THE UNION SEEKS ONLY A BOYCOTT OF THE
STRUCK PRODUCT, THE SWEEP OF CONGRESSMAN MADDEN'S COMMENT IS PLAINLY AT
ODDS WITH THE COURT'S VIEW OF SEC 8(B)(4)(II)(B). 

INDICATIVE OF THE CONTEMPORANEOUS UNDERSTANDING IS AN ANALYSIS OF THE
BILL PREPARED BY CONGRESSMEN THOMPSON AND UDALL AND INSERTED IN THE
CONGRESSIONAL RECORD, IN WHICH A HYPOTHETICAL CASE, AS DIRECTLY IN
POINT AS THE DEPARTMENT STORE EXAMPLE USED BY SENATOR MORSE, IS
SUGGESTED: 

"SUPPOSE THAT THE EMPLOYEES OF THE COORS BREWERY WERE TO STRIKE FOR
HIGHER WAGES AND THE COMPANY ATTEMPTED TO RUN THE BREWERY WITH
STRIKEBREAKERS.  UNDER THE PRESENT LAW, THE UNION CAN ASK THE PUBLIC
NOT TO BUY COORS BEER DURING THE STRIKE.  IT CAN PICKET THE BARS AND
RESTAURANTS WHICH SOLD COORS BEER WITH THE SIGNS ASKING THE PUBLIC NOT
TO BUY THE PRODUCT.  IT CAN BROADCAST THE REQUEST OVER THE RADIO OR IN
NEWSPAPER ADVERTISEMENTS. 

"THE LANDRUM BILL FORBIDS THIS ELEMENTARY FREEDOM TO APPEAL TO THE
GENERAL PUBLIC FOR ASSISTANCE IN WINNING FAIR LABOR STANDARDS."  105
CONG. REC. 15540, II LEG.  HIST.  1576. 

THE MAJORITY (ANTE, PP. 67-68) RELIES ON REMARKS MADE BY CONGRESSMAN
GRIFFIN, THE BILL'S CO-SPONSOR.  WHEN READ IN CONTEXT WHAT SEEMS
SIGNIFICANT ABOUT THEM IS THAT THE CONGRESSMAN NOWHERE SUGGESTS THAT
THERE CAN BE SOME KIND OF CONSUMER PICKETING WHICH DOES NOT COERCE OR
RESTRAIN THE SECONDARY EMPLOYER.  NOR DOES HE INTIMATE ANY
CONSTITUTIONAL PROBLEM IN PROHIBITING PICKETING THAT FOLLOWS THE STRUCK
PRODUCT.  (FN4) 

AFTER PASSAGE OF THE LANDRUM-GRIFFIN BILL, CONGRESSMAN THOMPSON
PRESENTED TO THE HOUSE AN ANALYSIS OF THE DIFFERENCES BETWEEN THE HOUSE
AND SENATE BILLS PREPARED BY SENATOR KENNEDY AND HIMSELF.  THIS
DESCRIBED THE NATURE OF SECONDARY BOYCOTTS: 

"IN ALL CASES OF SECONDARY BOYCOTTS TWO EMPLOYERS ARE INVOLVED.  THE
UNION BRINGS PRESSURE UPON THE EMPLOYER WITH WHOM IT HAS A DISPUTE
(CALLED THE 'PRIMARY' EMPLOYER) BY INDUCING THE EMPLOYEES OF ANOTHER
EMPLOYER (CALLED THE 'SECONDARY' EMPLOYER) TO GO ON STRIKE - OR THE
CUSTOMERS NOT TO PATRONIZE - UNTIL THE SECONDARY EMPLOYER STOPS DEALING
WITH THE PRIMARY EMPLOYER.  OR THE UNION MAY SIMPLY INDUCE THE
EMPLOYEES OF THE SECONDARY EMPLOYER TO REFUSE TO HANDLE OR WORK ON
GOODS - OR THE CUSTOMERS NOT TO BUY - COMING FROM THE PRIMARY EMPLOYER
AS A WAY OF PUTTING PRESSURE UPON HIM."  105 CONG. REC. 16589, II LEG. 
HIST.  1706. 

THE PREPARED ANALYSIS THEN DISUCSSES THE EFFECT OF THE HOUSE BILL ON
CONSUMER PICKETING, 105 CONG. REC. 16591, II LEG.  HIST.  1708.  TO
DESCRIBE ACTIVITIES OUTLAWED BY THE HOUSE BILL, IT USES THE SAME "COORS
BEER" HYPOTHETICAL WHICH THE EARLIER ANALYSIS HAD EMPLOYED.  THIS
ANALYSIS SHOWS BEYOND PERADVENTURE THAT SENATOR KENNEDY DID BELIEVE THE
LANGUAGE OF THE BILL TO PROSCRIBE ALL CONSUMER PICKETING AND INDICATES
THAT THIS VIEW WAS SQUARELY PLACED BEFORE THE HOUSE.  THE COURT ADVERTS
TO THIS ANALYSIS (ANTE, P. 69), AS THE GENESIS OF THE PUBLICITY
PROVISO, BUT FAILS TO ACKNOWLEDGE THE DIFFICULTY OF SQUARING THE GREAT
CONCERN OF THE SENATE CONFEREES TO PROTECT FREEDOM OF COMMUNICATION
WITH THE COURT'S SUPPOSITION THAT THE HOUSE BILL CLOSED OFF NO LINES OF
COMMUNICATION SO LONG AS THE UNION APPEAL WAS LIMITED TO BOYCOTT OF THE
STRUCK PRODUCTS. 

CONGRESSMAN GRIFFIN PLACED IN THE CONGRESSIONAL RECORD, 105 CONG.
REC. 18022, II LEG.  HIST. 1712, A PRELIMINARY REPORT ON THE CONFERENCE
AGREEMENT.  A SUMMARY ANALYSIS OF TAFT-HARTLEY AMENDMENTS STATES THAT
THE HOUSE BILL "PROHIBITS SECONDARY CUSTOMER PICKETING AT RETAIL STORE
WHICH HAPPENS TO SELL PRODUCT PRODUCED BY MANUFACTURER WITH WHOM UNION
HAS DISPUTE."  THE CONFERENCE AGREEMENT, ACCORDING TO THIS SUMMARY,
"ADOPTS HOUSE PROVISION WITH CLARIFICATION THAT OTHER FORMS OF
PUBLICITY ARE NOT PROHIBITED; ALSO CLARIFICATION THAT PICKETING AT
PRIMARY SITE IS NOT SECONDARY BOYCOTT." 

WHEN CONGRESSMAN THOMPSON SPOKE TO THE CONFERENCE AGREEMENT, HE
REITERATED HIS VIEW OF THE HOUSE BILL AND OF ITS MODIFICATION, 105
CONG. REC. 18133, II LEG.  HIST.  1720, 1721.  SPECIFICALLY HE STATED,
"ALL APPEALS FOR A CONSUMER BOYCOTT WOULD HAVE BEEN BARRED BY HOUSE
BILL." 

IN THE LIGHT OF THE FOREGOING, I SEE NO ESCAPE FROM THE CONCLUSION
THAT SEC 8(B)(4)(II)(B) DOES PROHIBIT ALL CONSUMER PICKETING.  THERE
ARE, OF COURSE, NUMEROUS TIMES IN THE DEBATES OF BOTH HOUSES IN WHICH
CONSUMER PICKETING IS REFERRED TO GENERALLY OR THE REFERENCE IS MADE
WITH AN EXAMPLE OF AN APPEAL TO CONSUMERS NOT TO PURCHASE AT ALL FROM
THE SECONDARY EMPLOYER.  BUT IT IS REMARKABLE THAT EVERY TIME THE
POSSIBILITY OF PICKETING OF THE SORT INVOLVED IN THIS CASE WAS
CONSIDERED, IT WAS ASSUMED TO BE PROHIBITED BY THE HOUSE BILL. 
ADMITTEDLY, IN THE HOUSE APPEALS TO REFRAIN FROM PURCHASE OF THE STRUCK
PRODUCT WERE DISCUSSED ONLY BY OPPONENTS OF THE HOUSE BILL; HOWEVER,
ONLY ONE OF TWO INFERENCES CAN BE DRAWN FROM THE SILENCE OF THE BILL'S
SUPPORTERS.  EITHER THE DISTINCTION DRAWN BY THIS COURT WAS NOT
CONSIDERED OF SUFFICIENT SIGNIFICANCE TO REQUIRE COMMENT, OR THE
PROPONENTS RECOGNIZED A DIFFERENCE BETWEEN THE TWO TYPES OF CONSUMER
PICKETING BUT ASSUMED THAT THE BILL ENCOMPASSED BOTH.  UNDER EITHER
SUPPOSITION, THE CONCLUSION REACHED BY THE COURT IN REGARD TO THE
PICKETING INVOLVED HERE IS UNTENABLE. 

            III. 

UNDER MY VIEW OF THE STATUTE THE CONSTITUTIONAL ISSUE IS THEREFORE
REACHED.  SINCE THE COURT DOES NOT DISCUSS IT, I AM CONTENT SIMPLY TO
STATE IN SUMMARY FORM MY REASONS FOR BELIEVING THAT THE PROHIBITIONS OF
SEC 8(B)(4)(II)(B), AS APPLIED HERE, DO NOT RUN AFOUL OF CONSTITUTIONAL
LIMITATIONS.   THIS COURT HAS LONG RECOGNIZED THAT PICKETING IS
"INSEPARABLY SOMETHING MORE THAN AND DIFFERENT" FROM SIMPLE
COMMUNICATION.  HUGHES V. SUPERIOR COURT, 339 U.S. 460, 464; SEE, E.G.,
BUILDING SERVICE EMPLOYEES V. GAZZAM, 339 U.S. 532, 537; BAKERY DRIVERS
V. WOHL, 315 U.S. 769, 776 (CONCURRING OPINION OF DOUGLAS, J.). 
CONGRESS HAS GIVEN CAREFUL AND CONTINUED CONSIDERATION TO THE PROBLEMS
OF LABOR-MANAGEMENT RELATIONS, AND ITS ATTEMPTS TO EFFECT AN
ACCOMMODATION BETWEEN THE RIGHT OF UNIONS TO PUBLICIZE THEIR POSITION
AND THE SOCIAL DESIRABILITY OF LIMITING A FORM OF COMMUNICATION LIKELY
TO HAVE EFFECTS CAUSED BY SOMETHING APART FROM THE MESSAGE
COMMUNICATED, ARE ENTITLED TO GREAT DEFERENCE.  THE DECISION OF
CONGRESS TO PROHIBIT SECONDARY CONSUMER PICKETING DURING LABOR DISPUTES
IS, I BELIEVE, NOT INCONSISTENT WITH THE PROTECTIONS OF THE FIRST
AMENDMENT, PARTICULARLY WHEN AS HERE, OTHER METHODS OF COMMUNICATION
ARE LEFT OPEN.  (FN5) 

CONTRARY TO MY BROTHER BLACK, I THINK THE FACT THAT CONGRESS IN
PROHIBITING SECONDARY CONSUMER PICKETING HAS ACTED WITH A
DISCRIMINATING EYE IS THE VERY THING THAT RENDERS THIS PROVISION
INVULNERABLE TO CONSTITUTIONAL ATTACK.  THAT CONGRESS HAS PERMITTED
OTHER PICKETING WHICH IS LIKELY TO HAVE EFFECTS BEYOND THOSE RESULTING
FROM THE "COMMUNICATIVE" ASPECT OF PICKETING DOES NOT, OF COURSE, IN
ANY WAY LEND ITSELF TO THE CONCLUSION THAT CONGRESS HERE HAS AIMED TO
"PREVENT DISSEMINATION OF INFORMATION ABOUT THE FACTS OF A LABOR
DISPUTE" (ANTE, P. 78).  EVEN ON THE HIGHLY DUBIOUS ASSUMPTION THAT THE
"NON-SPEECH" ASPECT OF PICKETING IS ALWAYS THE SAME WHATEVER THE
PARTICULAR CONTEXT, THE SOCIAL CONSEQUENCES OF THE "NON-COMMUNICATIVE"
ASPECT OF PICKETING MAY CERTAINLY BE THOUGHT DESIRABLE IN THE CASE OF
"PRIMARY" PICKETING AND UNDESIRABLE IN THE CASE OF "SECONDARY"
PICKETING, A JUDGMENT CONGRESS HAS INDEED MADE IN PROHIBITING SECONDARY
BUT NOT PRIMARY PICKETING. 

I WOULD ENFORCE THE BOARD'S ORDER. 

FN1  AS AMENDED BY THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT
OF 1959 (LANDRUM-GRIFFIN ACT) SEC 704(A), 73 STAT. 542-543, 29 U.S.C.
(SUPP. IV, 1963) SEC 158(B)(4). 

FN2  THE COURT SEEKS TO FIND SUPPORT FOR ITS LIMITED INTERPRETATION
OF THE LANGUAGE OF SEC 8(B)(4) IN CONGRESS' EXPLICIT MENTION OF
PICKETING IN SEC 8(B)(7).  ANTE, P. 68.  THE ANSWER TO THIS IS TWOFOLD:
FIRST, SEC 8(B)(7) REGULATES ONLY PICKETING (IN THE CONTEXT OF
ORGANIZATIONAL AND RECOGNITIONAL DISPUTES), WHILE SEC 8(B)(4) COVERS A
WIDE RANGE OF ACTIVITIES, OF WHICH PICKETING IS ONLY ONE.  SECOND, EVEN
IF THE ARGUMENT HAD SUBSTANCE, IT WOULD NOT AID THE COURT'S RESOLUTION
OF THIS CASE.  THE COURT RECOGNIZES THAT SEC 8(B)(4) DOES MAKE ILLEGAL
PER SE CONSUMER PICKETING DESIGNED TO ACCOMPLISH A COMPLETE BOYCOTT OF
THE SECONDARY EMPLOYER.  IT IN EFFECT ADMITS, ANTE, PP. 71-72, THAT THE
LANGUAGE "THREATEN, COERCE, OR RESTRAIN" DOES NOT SUGGEST ANY
DISTINCTION BETWEEN SUCH PICKETING AND THAT DIRECTED ONLY AT THE STRUCK
PRODUCT.  IT FOLLOWS, EVEN ON THE COURT'S OWN ANALYSIS, THAT THE
BREADTH OF THE LANGUAGE OF SEC 8(B)(4) PROVIDES NO SUPPORT FOR A VIEW
THAT CONGRESS DID NOT MEAN TO RENDER ILLEGAL PER SE THE KIND OF
PICKETING INVOLVED HERE. 

FN3  SENATOR MORSE CONTINUED BY QUOTING GOLDFINGER V. FEINTUCH, 276
N.Y. 281, 11 N.E.2D 910, WHICH HE BELIEVED ESTABLISHED THE LEGITIMACY
OF SUCH PICKETING.  THE COURT NOW CITES THE SAME CASE, ANTE, P. 64, AS
A STATE DECISION RECOGNIZING THE DISTINCTION ON WHICH THE OPINION IS
BASED, APPARENTLY WITHOUT REFLECTING ON THE ANOMALY THAT THE CASE IS
USED IN DEBATE AS AN EXAMPLE OF THE KIND OF ACTIVITY SEC 8(B)(4)(II)(B)
PROHIBITS. 

FN4  THE COLLOQUY BETWEEN CONGRESSMEN GRIFFIN AND BROWN ON THE
LANDRUM-GRIFFIN BILL, FROM WHICH THE EXCERPT OF THE COURT IS TAKEN,
REFLECTS A PLAIN INTENT TO OUTLAW CONSUMER PICKETING; THE CAVEAT
REGARDING THE RIGHT OF FREE SPEECH APPEARS TO BE ONLY AN ACKNOWLEDGMENT
OF THE GENERAL PRINCIPLE THAT ANY LEGISLATION IS SUBJECT TO
CONSTITUTIONAL LIMITATIONS: 

"MR. BROWN OF OHIO  ...  . 

"MY QUESTION CONCERNS THE PICKETING OF CUSTOMER ENTRANCES TO RETAIL
STORES SELLING GOODS MANUFACTURED BY A CONCERN UNDER STRIKE.  WOULD
THAT SITUATION BE PROHIBITED UNDER THE GENTLEMAN'S BILL? 

"MR. GRIFFIN.  LET US TAKE FOR EXAMPLE THE CASE THAT THE PRESIDENT
TALKED ABOUT IN HIS RECENT RADIO ADDRESS.  A FEW NEWSPAPERS REPORTED
THAT THE SECONDARY BOYCOTT DESCRIBED BY THE PRESIDENT WOULD BE
PROHIBITED UNDER THE PRESENT ACT.  IT WILL BE RECALLED THAT THE CASE
INVOLVED A DISPUTE WITH A COMPANY THAT MANUFACTURED FURNITURE.  LET US
UNDERSTAND THAT WE ARE NOT CONSIDERING ...  THE RIGHT TO PICKET AT THE
MANUFACTURING PLANT WHERE THE DISPUTE EXISTS. 

"MR. BROWN.  THAT IS RIGHT.  WE ARE LOOKING ONLY AT THE PROBLEM OF
PICKETING AT A RETAIL STORE WHERE THE FURNITURE IS SOLD. 

"MR. GRIFFIN.  THEN, WE ARE NOT TALKING ABOUT PICKETING AT THE PLACE
OF THE PRIMARY DISPUTE.  WE ARE CONCERNED ABOUT PICKETING AT A STORE
WHERE THE FURNITURE IS SOLD.  UNDER THE PRESENT LAW, IF THE PICKETING
HAPPENS TO BE AT THE EMPLOYEE ENTRANCE SO THAT CLEARLY THE PURPOSE OF
THE PICKETING IS TO INDUCE THE EMPLOYEES OF THE SECONDARY EMPLOYER NOT
TO HANDLE THE PRODUCTS OF THE PRIMARY EMPLOYER, THE BOYCOTT COULD BE
ENJOINED. 

"HOWEVER, IF THE PICKETING HAPPENED TO BE AROUND AT THE CUSTOMER
ENTRANCE, AND IF THE PURPOSE OF THE PICKETING WERE TO COERCE THE
EMPLOYER NOT TO HANDLE THOSE GOODS, THEN UNDER PRESENT LAW, BECAUSE OF
TECHNICAL INTERPRETATIONS, THE BOYCOTT WOULD NOT BE COVERED.    "MR.
BROWN.  IN OTHER WORDS, THE TAFT-HARTLEY ACT DOES NOT COVER SUCH A
SITUATION NOW? 

"MR. GRIFFIN.  THE WAY IT HAS BEEN INTERPRETED. 

"MR. BROWN.  BUT THE GRIFFIN-LANDRUM BILL WOULD? 

"MR. GRIFFIN.  OUR BILL WOULD; THAT IS RIGHT.  IF THE PURPOSE OF THE
PICKETING IS TO COERCE OR TO RESTRAIN THE EMPLOYER OF THAT SECOND
ESTABLISHMENT, TO GET HIM NOT TO DO BUSINESS WITH THE MANUFACTURER -
THEN SUCH A BOYCOTT COULD BE STOPPED. 

"MR. BROWN.  ...  WOULD THAT SAME RULE APPLY TO THE PICKETING AT THE
CUSTOMER ENTRANCES, FOR INSTANCE, OF PLUMBING SHOPS, OR NEWSPAPERS THAT
MIGHT RUN THE ADVERTISING OF THESE CONCERNS, OR RADIO STATIONS THAT
MIGHT CARRY THEIR PROGRAM? 

"MR. GRIFFIN.  OF COURSE, THIS BILL AND ANY OTHER BILL IS LIMITED BY
THE CONSTITUTIONAL RIGHT OF FREE SPEECH.  IF THE PURPOSE OF THE
PICKETING IS TO COERCE THE RETAILER NOT TO DO BUSINESS WITH THE
MANUFACTURER, WHETHER IT IS PLUMBING: 

"MR. BROWN.  ADVERTISING. 

"MR. GRIFFIN.  ADVERTISING, OR ANYTHING ELSE, IT WOULD BE COVERED BY
OUR BILL.  IT IS NOT COVERED NOW."  105 CONG. REC. 15672-15673, II
LEG.  HIST.  1615. 

FN5  I MEAN TO INTIMATE NO VIEW ON THE CONSTITUTIONALITY OF THE
REGULATION OR PROHIBITION OF PICKETING WHICH PUBLICIZES SOMETHING OTHER
THAN A GRIEVANCE IN A LABOR-MANAGEMENT DISPUTE. 
..END :















UNITED STATES V. WELDEN 377 U.S. 95 


NO. 235.  ARGUED FEBRUARY 27, 1964.  - DECIDED APRIL 20, 1964.  - 215 F.
SUPP. 656, REVERSED AND REMANDED. 


AN INDICTMENT AGAINST APPELLEE UNDER THE SHERMAN ACT AND CONSPIRACY
ACT CONCERNED MATTERS ABOUT WHICH HE HAD PREVIOUSLY TESTIFIED BEFORE A
CONGRESSIONAL SUBCOMMITTEE.  THE DISTRICT COURT DISMISSED THE
INDICTMENT, UPHOLDING APPELLEE'S CONTENTION THAT PROSECUTION WAS BARRED
UNDER THE IMMUNITY PROVISION OF THE ACT OF FEBRUARY 25, 1903, PROVIDING
THAT NO PERSON SHALL BE PROSECUTED ON ACCOUNT OF ANY MATTER CONCERNING
WHICH HE TESTIFIES "IN ANY PROCEEDING, SUIT, OR PROSECUTION" UNDER THE
SHERMAN ACT AND OTHER SPECIFIED STATUTES.  HELD:  APPELLEE'S TESTIMONY
BEFORE THE CONGRESSIONAL SUBCOMMITTEE DID NOT IMMUNIZE HIM FROM
PROSECUTION, THE ACT OF FEBRUARY 25, 1903, AS AMENDED IN 1906,
CONFINING IMMUNITY TO PERSONS WHO TESTIFY IN JUDICIAL PROCEEDINGS UNDER
OATH AND IN RESPONSE TO A SUBPOENA. 

UNITED STATES V. WELDEN. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS THE QUESTION OF WHETHER A PERSON WHO HAS
TESTIFIED UNDER SUBPOENA BEFORE A CONGRESSIONAL COMMITTEE INVESTIGATING
THE OPERATION OF THE ANTITRUST ACTS HAS TESTIFIED IN A "PROCEEDING,
SUIT, OR PROSECUTION UNDER SAID ACTS"  THEREBY ACQUIRING IMMUNITY FROM
PROSECUTION UNDER THE ACT OF FEBRUARY 25, 1903, 32 STAT. 854, 904. 
(FN1) 

THE FACTS ARE UNDISPUTED.  ON SEPTEMBER 6, 1962, APPELLEE, ALONG WITH
OTHER INDIVIDUALS AND CORPORATIONS, WAS INDICTED ON CHARGES OF
CONSPIRING TO FIX MILK PRICES AND TO DEFRAUD THE UNITED STATES, IN
VIOLATION OF SEC 1 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15
U.S.C. SEC 1, AND THE CONSPIRACY ACT, 62 STAT. 701, 18 U.S.C. SEC 371. 
APPELLEE MOVED TO DISMISS THE INDICTMENT ON THE GROUND, INTER ALIA,
THAT THE PROSECUTION WAS BARRED UNDER THE IMMUNITY PROVISION OF THE ACT
OF FEBRUARY 25, 1903, BECAUSE HE HAD PREVIOUSLY TESTIFIED BEFORE A
SUBCOMMITTEE OF THE HOUSE SELECT COMMITTEE ON SMALL BUSINESS CONCERNING
MATTERS COVERED BY THE INDICTMENT.  THE GOVERNMENT OPPOSED THE MOTION
TO DISMISS CONTENDING THAT THE IMMUNITY PROVISION OF THE ACT OF
FEBRUARY 25, 1903, EXTENDS ONLY TO JUDICIAL PROCEEDINGS AND NOT TO
HEARINGS BEFORE CONGRESSIONAL COMMITTEES.  (FN2) THE DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS, REJECTING THE GOVERNMENT'S CONTENTION,
DISMISSED THE INDICTMENT AGAINST APPELLEE.  THE GOVERNMENT APPEALED THE
DISMISSAL DIRECTLY TO THIS COURT PURSUANT TO THE CRIMINAL APPEALS ACT,
62 STAT. 844, AS AMENDED, 18 U.S.C. SEC 3731.  PROBABLE JURISDICTION
WAS NOTED.  375 U.S. 809. 

WE HOLD, FOR THE REASONS STATED BELOW, THAT THE IMMUNITY PROVISION OF
THE ACT OF FEBRUARY 25, 1903, APPLIES ONLY TO PERSONS TESTIFYING IN
JUDICIAL PROCEEDINGS, NOT TO PERSONS TESTIFYING BEFORE COMMITTEES OR
SUBCOMMITTEES OF CONGRESS. 

THE IMMUNITY PROVISION IN QUESTION WAS ENACTED AS PART OF AN
APPROPRIATIONS ACT WHICH DECLARED: 

"THAT FOR THE ENFORCEMENT OF THE PROVISIONS OF THE ACT ENTITLED 'AN
ACT TO REGULATE COMMERCE,' APPROVED FEBRUARY FOURTH, EIGHTEEN HUNDRED
AND EIGHTY-SEVEN, AND ALL ACTS AMENDATORY THEREOF OR SUPPLEMENTAL
THERETO, AND OF THE ACT ENTITLED 'AN ACT TO PROTECT TRADE AND COMMERCE
AGAINST UNLAWFUL RESTRAINTS AND MONOPOLIES,' APPROVED JULY SECOND,
EIGHTEEN HUNDRED AND NINETY, AND ALL ACTS AMENDATORY THEREOF OR
SUPPLEMENTAL THERETO, AND SECTIONS SEVENTY-THREE, SEVENTY-FOUR, SEVENTY
FIVE, AND SEVENTY-SIX OF THE ACT ENTITLED 'AN ACT TO REDUCE TAXATION,
TO PROVIDE REVENUE FOR THE GOVERNMENT, AND OTHER PURPOSES,' APPROVED
AUGUST TWENTY-SEVENTH, EIGHTEEN HUNDRED AND NINETY-FOUR, THE SUM OF
FIVE HUNDRED THOUSAND DOLLARS, TO BE IMMEDIATELY AVAILABLE, IS HEREBY
APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT HERETOFORE
APPROPRIATED, TO BE EXPENDED UNDER THE DIRECTION OF THE ATTORNEY
GENERAL IN THE EMPLOYMENT OF SPECIAL COUNSEL AND AGENTS OF THE
DEPARTMENT OF JUSTICE TO CONDUCT PROCEEDINGS, SUITS, AND PROSECUTIONS
UNDER SAID ACTS IN THE COURTS OF THE UNITED STATES: PROVIDED, THAT NO
PERSON SHALL BE PROSECUTED OR BE SUBJECTED TO ANY PENALTY OR FORFEITURE
FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER, OR THING CONCERNING WHICH
HE MAY TESTIFY OR PRODUCE EVIDENCE, DOCUMENTARY OR OTHERWISE, IN ANY
PROCEEDING, SUIT, OR PROSECUTION UNDER SAID ACTS  ...  ."  32 STAT. 903
904. 

BY ANY COMMON-SENSE READING OF THIS STATUTE, THE WORDS "ANY
PROCEEDING, SUIT, OR PROSECUTION UNDER SAID ACTS" IN THE PROVISO
PLAINLY REFER TO THE PHRASE "PROCEEDINGS, SUITS, AND PROSECUTIONS UNDER
SAID ACTS IN THE COURTS OF THE UNITED STATES," IN THE PREVIOUS CLAUSE. 
THE WORDS "UNDER SAID ACTS" CONFIRM THAT THE IMMUNITY PROVISION IS
LIMITED TO JUDICIAL PROCEEDINGS, WHICH ARE BROUGHT "UNDER" SPECIFIC
EXISTING ACTS, SUCH AS THE SHERMAN ACT OR THE COMMERCE ACT. 
CONGRESSIONAL INVESTIGATIONS, ALTHOUGH THEY MAY RELATE TO SPECIFIC
EXISTING ACTS, ARE NOT GENERALLY SO RESTRICTED IN PURPOSE OR SCOPE AS
TO BE SPOKEN OF AS BEING BROUGHT "UNDER" THESE ACTS.  (FN3) 

IN HALE V. HENKEL, 201 U.S. 43, DECIDED ONLY THREE YEARS AFTER THE
PASSAGE OF THE ACT OF FEBRUARY 25, 1903, THIS COURT CONSTRUED THAT ACT
IN ACCORDANCE WITH THE PLAIN MEANING OF ITS WORDS AS FOLLOWS: 

"WHILE THERE MAY BE SOME DOUBT WHETHER THE EXAMINATION OF WITNESSES
BEFORE A GRAND JURY IS A SUIT OR PROSECUTION, WE HAVE NO DOUBT THAT IT
IS A 'PROCEEDING' WITHIN THE MEANING OF THIS PROVISO.  THE WORD SHOULD
RECEIVE AS WIDE A CONSTRUCTION AS IS NECESSARY TO PROTECT THE WITNESS
IN HIS DISCLOSURES, WHENEVER SUCH DISCLOSURES ARE MADE IN PURSUANCE OF
A JUDICIAL INQUIRY, WHETHER SUCH INQUIRY BE INSTITUTED BY A GRAND JURY,
OR UPON THE TRIAL OF AN INDICTMENT FOUND BY THEM."  ID., AT 66. 

WE CONCLUDE, THEREFORE, THAT AS ENACTED THE ACT OF FEBRUARY 25, 1903,
APPLIES ONLY TO JUDICIAL PROCEEDINGS.  (FN4) 

APPELLEE DOES NOT REALLY DISPUTE THIS.  HIS BASIC CONTENTION, WHICH
IS NOT ACCEPTED BY ANY MEMBER OF THE COURT,  (FN5)  IS THAT THE 1906
IMMUNITY STATUTE  (FN6)  AMENDED THE ACT OF FEBRUARY 25, 1903, TO
EXTEND IMMUNITY TO PERSONS WHO TESTIFIED IN NONJUDICIAL AS WELL AS
JUDICIAL PROCEEDINGS.  HE DOES NOT CONTEND THAT THE 1906 STATUTE, BY
ITS TERMS, SO AMENDED THE 1903 ACT.  HE OFFERS THE FOLLOWING
INTERPRETATION OF THE EVENTS LEADING UP TO THE ENACTMENT OF THE 1906
STATUTE IN SUPPORT OF THE CONTENTION THAT THE 1903 ACT WAS AMENDED BY
IMPLICATION TO EXTEND TO NONJUDICIAL PROCEEDINGS.  IN THE CASE OF
UNITED STATES V. ARMOUR & CO., 142 F. 808, DECIDED THREE YEARS AFTER
THE ENACTMENT OF THE 1903 ACT, THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS HELD THAT CERTAIN DEFENDANTS HAD BEEN
IMMUNIZED FROM PROSECUTION UNDER THE ANTITRUST LAWS BY GIVING
UNSUBPOENAED AND UNSWORN TESTIMONY IN A NONJUDICIAL INVESTIGATION
CONDUCTED BY THE COMMISSIONER OF CORPORATIONS,  (FN7)  AN OFFICIAL OF
THE DEPARTMENT OF COMMERCE AND LABOR.  (FN8)  CONGRESSIONAL REACTION TO
THIS DECISION WAS IMMEDIATE AND ADVERSE, AND WITHIN FOUR MONTHS
CONGRESS ENACTED THE 1906 IMMUNITY STATUTE.  (FN9)  THIS STATUTE
SPECIFICALLY LIMITED IMMUNITY UNDER EXISTING IMMUNITY STATUTES TO
PERSONS TESTIFYING UNDER OATH AND IN OBEDIENCE TO SUBPOENA.  (FN10)
APPELLEE CONTENDS THAT THE PURPOSE OF CONGRESS IN ENACTING THE 1906
STATUTE WAS TO REMEDY THE OBJECTIONABLE FEATURES OF THE ARMOUR
DECISION, AND THAT SINCE THE STATUTE DID NOT "REMEDY" THE COURT'S
HOLDING THAT IMMUNITY COULD BE OBTAINED BY TESTIFYING IN A NONJUDICIAL
PROCEEDING, IT FOLLOWS THAT CONGRESS DID NOT REGARD THAT HOLDING AS
OBJECTIONABLE.  HE ASKS US TO CONCLUDE, THEREFORE, THAT "PROCEEDING" AS
USED IN THE IMMUNITY PROVISION OF THE ACT OF FEBRUARY 25, 1903, MUST
NOW BE READ TO INCLUDE NONJUDICIAL AS WELL AS JUDICIAL PROCEEDINGS. 

THIS ARGUMENT ERRONEOUSLY ASSUMES THAT THE ARMOUR DECISION RESTED ON
A CONSTRUCTION OF "PROCEEDING, SUIT, OR PROSECUTION" IN THE IMMUNITY
PROVISION OF THE ACT OF FEBRUARY 25, 1903.  A READING OF THAT DECISION
REVEALS, HOWEVER, THAT IT RESTED PRIMARILY ON THE COMMERCE AND LABOR
ACT, WHICH CONTAINED A SPECIFIC GRANT OF IMMUNITY TO PERSONS WHO
TESTIFIED IN INVESTIGATIONS, ADMITTEDLY NONJUDICIAL, CONDUCTED BY THE
COMMISSIONER OF CORPORATIONS.  (FN11)  IN DECIDING THE ARMOUR CASE, THE
COURT FELT IT "NECESSARY TO LOOK INTO THE PURPOSES OF CONGRESS IN
PASSING THE COMMERCE AND LABOR ACT IN ORDER THAT THE COURT MAY
DETERMINE WHAT CONSTRUCTION WILL BEST CARRY OUT THE LEGISLATIVE
INTENT."  142 F., AT 819.  AFTER A DETAILED ANALYSIS OF THAT STATUTE
AND ITS HISTORY, THE COURT CONCLUDED THAT THE COMMERCE AND LABOR ACT
WAS DISPOSITIVE OF THE CASE AND THAT DEFENDANTS WERE ENTITLED TO
IMMUNITY THEREUNDER.  FOLLOWING THIS CONCLUSION, THE JUDGE ADDED A
BRIEF PARAGRAPH IN WHICH HE SAID, WITHOUT ANALYZING (OR EVEN QUOTING)
THE LANGUAGE OR HISTORY OF THE ACT OF FEBRUARY 25, 1903, THAT HE WAS
"OF OPINION" THAT THE DEFENDANTS WOULD ALSO BE ENTITLED TO IMMUNITY
UNDER THAT ACT AS WELL.  ID., AT 826.  (FN12)  IN THE VERY NEXT
PARAGRAPH, HOWEVER, THE JUDGE AGAIN DESCRIBED THE OPINION AS RESTING ON
"THE CONSTRUCTION HERE GIVEN TO THE COMMERCE AND LABOR LAW  ...  ." 
IBID.

THE CONTROVERSIAL FEATURE OF THE ARMOUR DECISION, AND THE ONLY ONE
WHICH CONGRESS WAS INTERESTED IN REMEDYING, WAS THE HOLDING THAT
UNSUBPOENAED AND UNSWORN TESTIMONY CAME WITHIN "THE PURPOSES OF
CONGRESS IN PASSING THE COMMERCE AND LABOR ACT  ...  ."  142 F., AT
819.  CONGRESS WANTED TO BE CERTAIN THAT PERSONS ANTICIPATING
INDICTMENT COULD NOT IMMUNIZE THEMSELVES FROM PROSECUTION BY
VOLUNTEERING TO GIVE UNSWORN TESTIMONY.  (FN13)  THERE WAS NOTHING
CONTROVERSIAL ABOUT THE COURT'S HOLDING THAT IMMUNITY COULD RESULT FROM
TESTIMONY GIVEN IN AN INVESTIGATION CONDUCTED BY THE COMMISSIONER OF
CORPORATIONS, SINCE THE COMMERCE AND LABOR ACT SPECIFICALLY GRANTED
IMMUNITY FOR TESTIMONY GIVEN IN SUCH AN INVESTIGATION. 

IT IS NOT AT ALL SIGNIFICANT, THEREFORE, THAAT CONGRESS, WHILE
"REMEDYING" THE ARMOUR HOLDING THAT IMMUNITY COULD BE OBTAINED FROM
TESTIMONY WHICH WAS UNSWORN AND VOLUNTARY, DID NOT "REMEDY" THE HOLDING
THAT IMMUNITY COULD RESULT FROM TESTIMONY GIVEN IN NONJUDICIAL
INVESTIGATIONS CONDUCTED BY THE COMMISSIONER OF CORPORATIONS. 

CONGRESS, IN ENACTING THE 1906 STATUTE, DID NOT MANIFEST ANY INTENT
TO ENLARGE THE REACH OF THE IMMUNITY PROVISION OF THE ACT OF FEBRUARY
25, 1903, TO INCLUDE NONJUDICIAL PROCEEDINGS.  THE PURPOSE OF THE 1906
STATUTE WAS NOT TO DEFINE THE TYPE OF PROCEEDING IN WHICH IMMUNITY,
UNDER EXISTING STATUTES, COULD BE OBTAINED.  ITS SOLE PURPOSE WAS TO
DEFINE THE TYPE OF TESTIMONY FOR WHICH IMMUNITY, UNDER EXISTING
STATUTES, COULD BE OBTAINED.  THIS IS ALL CONGRESS WAS ASKED TO DO BY
PRESIDENT THEODORE ROOSEVELT IN HIS MESSAGE RECOMMENDING THE
LEGISLATION WHICH BECAME THE 1906 STATUTE.  IN HIS MESSAGE THE
PRESIDENT SAID: 

"IT HAS HITHERTO BEEN SUPPOSED THAT THE IMMUNITY CONFERRED BY
EXISTING LAWS WAS ONLY UPON PERSONS WHO, BEING SUBPOENAED, HAD GIVEN
TESTIMONY OR PRODUCED EVIDENCE  ...  . 

     *         *         *  *         * 

"BUT JUDGE HUMPHREY, THE DISTRICT JUDGE WHO DECIDED THE ARMOUR CASE,
HOLDS THAT IF THE COMMISSIONER OF CORPORATIONS (AND THEREFORE IF THE
INTERSTATE COMMERCE COMMISSION), IN THE COURSE OF ANY INVESTIGATIONS
PRESCRIBED BY CONGRESS, ASKS ANY QUESTIONS OF A PERSON, NOT CALLED AS A
WITNESS, OR ASKS ANY QUESTIONS OF AN OFFICER OF A CORPORATION, NOT
CALLED AS A WITNESS, WITH REGARD TO THE ACTION OF THE CORPORATION ON A
SUBJECT OUT OF WHICH PROSECUTIONS MAY SUBSEQUENTLY ARISE, THEN THE FACT
OF SUCH QUESTIONS HAVING BEEN ASKED OPERATES AS A BAR TO THE
PROSECUTION OF THAT PERSON OR OF THAT OFFICER OF THE CORPORATION FOR
HIS OWN MISDEEDS.  SUCH INTERPRETATION OF THE LAW COMES MEASURABLY NEAR
MAKING THE LAW A FARCE, AND I THEREFORE RECOMMEND THAT THE CONGRESS
PASS A DECLARATORY ACT STATING ITS REAL INTENTION."  H.R. DOC.  NO.
706, 59TH CONG., 1ST SESS. 

THE LIMITED PURPOSE OF THE 1906 ACT IS ALSO APPARENT FROM THE
RESPONSE MADE BY SENATOR KNOX, THE MANAGER OF THE BILL WHICH BECAME THE
1906 ACT, (FN14) TO A STATEMENT MADE BY SENATOR DANIEL, A CRITIC OF
IMMUNITY LEGISLATION.  SENATOR DANIEL SAID: 

"I SUPPOSE THAT THE BILL UNDER CONSIDERATION AS IT READS NOW APPLIES
ONLY TO PERSONS WHO TESTIFY IN A JUDICIAL PROCEEDING OR TO THOSE WHO
ARE RESPONDING TO SOME BODY SUCH AS A CONGRESSIONAL COMMITTEE THAT HAS
THE RIGHT TO ENFORCE AN ANSWER FROM A WITNESS.  (FN15) 

     *         *         *         *         * 

"I SHOULD LIKE VERY MUCH TO HEAR FROM THE PATRON OF THIS BILL SOME
STATEMENT AS TO THE PRESENT STATE OF THE LAW AND AS TO THE BENEFITS TO
BE DERIVED FROM THE BILL." 

SENATOR KNOX RESPONDED AS FOLLOWS: 

"MR. PRESIDENT, THE PURPOSE OF THIS BILL IS CLEAR, AND ITS RANGE IS
NOT VERY BROAD.  IT IS NOT INTENDED TO COVER ALL DISPUTED PROVISIONS AS
TO THE RIGHTS OF WITNESSES UNDER ANY CIRCUMSTANCES, EXCEPT THOSE
ENUMERATED IN THE BILL ITSELF ...  . 

     *         *         *         *         * 

"MR. PRESIDENT, THE WHOLE PURPOSE OF THIS BILL IS TO DEFINE THE RIGHT
OF THE WITNESS AS WE THOUGHT IT WAS DEFINED IN THE STATUTE WHICH I HAVE
READ, AND TO SAY, AS THE STATUTE SAID, BUT TO SAY IT EVEN MORE CLEARLY
AND EMPHATICALLY, THAT THE IMMUNITY SHALL ONLY EXTEND TO WITNESSES WHO
HAVE BEEN SUBPOENAED TO PRODUCE BOOKS AND PAPERS OR SUBPOENAED TO GIVE
TESTIMONY.  THE ESSENCE OF THE WHOLE ACT IS FOUND IN LINES 18, 19, AND
20, ON PAGE 2, WHICH READ THAT THESE IMMUNITY PROVISIONS - ONLY THE
IMMUNITY PROVISIONS UNDER THE INTERSTATE COMMERCE ACT AND UNDER THE
COMMERCE AND LABOR ACT, NOT THE GENERAL IMMUNITY THAT THE CITIZEN
ENJOYS IN JUDICIAL PROCEEDINGS, BUT MERELY IN RELATION TO THE
PROCEEDINGS OF THESE TWO GREAT BUREAUS OF THE GOVERNMENT - 'SHALL
EXTEND ONLY TO A NATURAL PERSON.'  THAT IS, THAT A CORPORATION IS NOT
TO HAVE THE BENEFIT OF THE IMMUNITY PROVISIONS, BUT THEY - 'SHALL
EXTEND ONLY TO A NATURAL PERSON WHO, IN OBEDIENCE TO A SUBPOENA, GIVES
TESTIMONY UNDER OATH OR PRODUCES EVIDENCE, DOCUMENTARY OR OTHERWISE,
UNDER OATH.'"  40 CONG. REC. 7657-7658.  (FN16)    THIS COURT IN UNITED
STATES V. MONIA, 317 U.S. 424, 429-430, RECOGNIZED THAT "THE SOLE
PURPOSE" OF THE 1906 STATUTE WAS TO LIMIT IMMUNITY TO PERSONS "WHO, IN
OBEDIENCE TO A SUBPOENA, TESTIFIED OR PRODUCED EVIDENCE UNDER OATH," SO
THAT THE DECISION WHETHER OR NOT TO GRANT IMMUNITY WOULD BE THAT OF THE
APPROPRIATE "GOVERNMENT OFFICIALS," RATHER THAN OF PRIVATE CITIZENS
ANTICIPATING INDICTMENT.  (FN17) 

WE CONCLUDE, THEREFORE, THAT THE 1906 STATUTE DID NOT, EITHER
EXPRESSLY OR IMPLICITLY, EXTEND THE IMMUNITY PROVISION OF THE ACT OF
FEBRUARY 25, 1903, TO INCLUDE NONJUDICIAL PROCEEDINGS.  THE 1906 ACT
SIMPLY LIMITED IMMUNITY TO PERSONS TESTIFYING UNDER OATH AND IN
RESPONSE TO SUBPOENA.    OUR DECISION TODAY IS BASED SOLELY ON THE
LANGUAGE AND LEGISLATIVE HISTORY OF THE RELEVANT CONGRESSIONAL
ENACTMENTS.  CONGRESS HAS EXTENDED IMMUNITY, WITH CAREFUL SAFEGUARDS,
TO PERSONS TESTIFYING BEFORE CONGRESSIONAL COMMITTEES IN CERTAIN
LIMITED SITUATIONS NOT HERE INVOLVED.  (FN18) WHERE CONGRESS, HOWEVER,
HAS LIMITED IMMUNITY TO PERSONS TESTIFYING IN JUDICIAL PROCEEDINGS, AS
IT HAS PLAINLY DONE HERE, IT IS NOT FOR THE COURTS TO EXTEND THE SCOPE
OF THE IMMUNITY. 

THE DISTRICT COURT ERRED, THEREFORE, IN HOLDING THAT APPELLEE'S
TESTIMONY BEFORE A CONGRESSIONAL SUBCOMMITTEE HAD IMMUNIZED HIM FROM
PROSECUTION.  THE JUDGMENT DISMISSING THE INDICTMENT IS REVERSED AND
THE CASE REMANDED FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT
IS SO ORDERED. 

FN1  THE RELEVANT PORTION OF THIS ACT IS SET FORTH ON PP. 96-97. 

FN2  THE GOVERNMENT CONCEDES THAT THE TESTIMONY GIVEN BEFORE THE
SUBCOMMITTEE RELATED TO MATTERS CHARGED IN THE INDICTMENT. 

FN3  CONGRESSIONAL HEARINGS ARE GENERALLY CONDUCTED UNDER THE
LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 812, UNDER THE RULES
OR REGULATIONS OF EITHER HOUSE, OR, AS IN THE PRESENT CASE, UNDER A
SPECIAL RESOLUTION.  H. RES. 51, 86TH CONG., 1ST SESS., 105 CONG. REC.
1785. 

FN4  THIS ACT, AS CODIFIED, APPEARS AT 15 U.S.C. SEC 32.  THE
CODIFICATION, WHICH HAS NOT BEEN ENACTED INTO POSITIVE LAW, ELIMINATES
THE APPROPRIATION PROVISION OF THE ACT WHICH BY ITS TERMS WAS OF NO
EFFECT AFTER JUNE 30, 1904.  THE COFIFICATION MAKES NO OTHER CHANGE. 
61 STAT. 638, 1 U.S.C. SEC 204(A), DECLARES THAT THE U.S.C. ESTABLISHES
"PRIMA FACIE THE LAWS OF THE UNITED STATES, GENERAL AND PERMANENT IN
THEIR NATURE  ...  PROVIDED, HOWEVER, THAT WHENEVER TITLES OF SUCH CODE
SHALL HAVE BEEN ENACTED INTO POSITIVE LAW THE TEXT THEREOF SHALL BE
LEGAL EVIDENCE OF THE LAWS THEREIN CONTAINED, IN ALL THE COURTS  ...
."  THIS COURT, IN CONSTRUING THAT STATUTE HAS SAID THAT "THE VERY
MEANING OF 'PRIMA FACIE' IS THAT THE CODE CANNOT PREVAIL OVER THE
STATUTES AT LARGE WHEN THE TWO ARE INCONSISTENT."  STEPHAN V. UNITED
STATES, 319 U.S. 423, 426.  EVEN WHERE CONGRESS HAS ENACTED A
CODIFICATION INTO POSITIVE LAW, THIS COURT HAS SAID THAT THE: 

"CHANGE OF ARRANGEMENT, WHICH PLACED PORTIONS OF WHAT WAS ORIGINALLY
A SINGLE SECTION IN TWO SEPARATED SECTIONS CANNOT BE REGARDED AS
ALTERING THE SCOPE AND PURPOSE OF THE ENACTMENT.  FOR IT WILL NOT BE
INFERRED THAT CONGRESS, IN REVISING AND CONSOLIDATING THE LAWS,
INTENDED TO CHANGE THEIR EFFECT UNLESS SUCH INTENTION IS CLEARLY
EXPRESSED."  FOURCO GLASS CO. V. TRANSMIRRA CORP., 353 U.S. 222, 227,
QUOTING ANDERSON V. PACIFIC COAST S.S. CO., 225 U.S. 187, 198-199. 

CERTAINLY WHERE, AS HERE, THE "CHANGE OF ARRANGEMENT" WAS MADE BY A
CODIFIER WITHOUT THE APPROVAL OF CONGRESS, IT SHOULD BE GIVEN NO
WEIGHT.  "IF CONSTRUCTION OF A SECTION OF THE U.S.C. WHICH HAS NOT BEEN
ENACTED INTO POSITIVE LAW IS NECESSARY, RECOURSE MUST BE HAD TO THE
ORIGINAL STATUTES THEMSELVES."  MURRELL V. WESTERN UNION TEL. CO., 160
F.2D 787, 788.  ACCORDINGLY, IN ORDER TO CONSTRUE THE IMMUNITY
PROVISION OF THE APPROPRIATIONS ACT OF FEBRUARY 25, 1903, WE MUST READ
IT IN THE CONTEXT OF THE ENTIRE ACT, RATHER THAN IN THE CONTEXT OF THE
"ARRANGEMENT" SELECTED BY THE CODIFIER. 

FN5  SEE DISSENTING OPINION OF MR. JUSTICE BLACK, POST, AT 113, NOTE
11. 

FN6  THE TEXT OF THE 1906 STATUTE IS SET FORTH INFRA, NOTE 9. 

FN7  THIS CONCLUSION WAS REACHED AFTER THE TAKING OF TESTIMONY. 
ACCORDINGLY, THE GOVERNMENT COULD NOT APPEAL THE TRIAL COURT'S DIRECTED
VERDICT OF ACQUITTAL. 

FN8  THE ARMOUR CASE AROSE BEFORE THE CREATION OF INDEPENDENT
DEPARTMENTS OF LABOR AND OF COMMERCE. 

FN9  THE FULL TEXT OF THE 1906 ACT IS AS FOLLOWS. 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT UNDER THE IMMUNITY
PROVISIONS IN THE ACT ENTITLED 'AN ACT IN RELATION TO TESTIMONY BEFORE
THE INTERSTATE COMMERCE COMMISSION,' AND SO FORTH, APPROVED FEBRUARY
ELEVENTH, EIGHTEEN HUNDRED AND NINETY-THREE, IN SECTION SIX OF THE ACT
ENTITLED 'AN ACT TO ESTABLISH THE DEPARTMENT OF COMMERCE AND LABOR,'
APPROVED FEBRUARY FOURTEENTH, NINETEEN HUNDRED AND THREE, AND IN THE
ACT ENTITLED 'AN ACT TO FURTHER REGULATE COMMERCE WITH FOREIGN NATIONS
AND AMONG THE STATES,' APPROVED FEBRUARY NINETEENTH, NINETEEN HUNDRED
AND THREE, AND IN THE ACT ENTITLED 'AN ACT MAKING APPROPRIATIONS FOR
THE LEGISLATIVE, EXECUTIVE, AND JUDICIAL EXPENSES OF THE GOVERNMENT FOR
THE FISCAL YEAR ENDING JUNE THIRTIETH, NINETEEN HUNDRED AND FOUR, AND
FOR OTHER PURPOSES,' APPROVED FEBRUARY TWENTY-FIFTH, NINETEEN HUNDRED
AND THREE, IMMUNITY SHALL EXTEND ONLY TO A NATURAL PERSON WHO, IN
OBEDIENCE TO A SUBPOENA, GIVES TESTIMONY UNDER OATH OR PRODUCES
EVIDENCE, DOCUMENTARY OR OTHERWISE, UNDER OATH."  34 STAT. 798, 15
U.S.C. SEC 33. 

FN10  SEE DISCUSSION OF THESE EVENTS IN UNITED STATES V. MONIA, 317
U.S. 424, 428-429. 

FN11  "AN ACT TO ESTABLISH THE DEPARTMENT OF COMMERCE AND LABOR"
PROVIDED IN RELEVANT PART: 

"IN ORDER TO ACCOMPLISH THE PURPOSES DECLARED IN THE FOREGOING PART
OF THIS SECTION, THE SAID COMMISSIONER SHALL HAVE AND EXERCISE THE SAME
POWER AND AUTHORITY IN RESPECT TO CORPORATIONS, JOINT STOCK COMPANIES
AND COMBINATIONS SUBJECT TO THE PROVISIONS HEREOF, AS IS CONFERRED ON
THE INTERSTATE COMMERCE COMMISSION IN SAID 'ACT TO REGULATE COMMERCE'
AND THE AMENDMENTS THERETO IN RESPECT TO COMMON CARRIERS SO FAR AS THE
SAME MAY BE APPLICABLE, INCLUDING THE RIGHT TO SUBPOENA AND COMPEL THE
ATTENDANCE AND TESTIMONY OF WITNESSES AND THE PRODUCTION OF DOCUMENTARY
EVIDENCE AND TO ADMINISTER OATHS.  ALL THE REQUIREMENTS, OBLIGATIONS,
LIABILITIES, AND IMMUNITIES IMPOSED OR CONFERRED BY SAID 'ACT TO
REGULATE COMMERCE' AND BY 'AN ACT IN RELATION TO TESTIMONY BEFORE THE
INTERSTATE COMMERCE COMMISSION,' AND SO FORTH, APPROVED FEBRUARY
ELEVENTH, EIGHTEEN HUNDRED AND NINETY-THREE, SUPPLEMENTAL TO SAID 'ACT
TO REGULATE COMMERCE,' SHALL ALSO APPLY TO ALL PERSONS WHO MAY BE
SUBPOENAED TO TESTIFY AS WITNESSES OR TO PRODUCE DOCUMENTARY EVIDENCE
IN PURSUANCE OF THE AUTHORITY CONFERRED BY THIS SECTION."  32 STAT.
825, 828. 

THE ACT OF FEBRUARY 11, 1893, PROVIDES IN RELEVANT PART: 

"THAT NO PERSON SHALL BE EXCUSED FROM ATTENDING AND TESTIFYING OR
FROM PRODUCING BOOKS, PAPERS, TARIFFS, CONTRACTS, AGREEMENTS AND
DOCUMENTS BEFORE THE INTERSTATE COMMERCE COMMISSION, OR IN OBEDIENCE TO
THE SUBPOENA OF THE COMMISSION, WHETHER SUCH SUBPOENA BE SIGNED OR
ISSUED BY ONE OR MORE COMMISSIONERS, OR IN ANY CAUSE OR PROCEEDING,
CRIMINAL OR OTHERWISE, BASED UPON OR GROWING OUT OF ANY ALLEGED
VIOLATION OF THE ACT OF CONGRESS, ENTITLED, 'AN ACT TO REGULATE
COMMERCE,' APPROVED FEBRUARY FOURTH, EIGHTEEN HUNDRED AND EIGHTY-SEVEN,
OR OF ANY AMENDMENT THEREOF ON THE GROUND OR FOR THE REASON THAT THE
TESTIMONY OR EVIDENCE, DOCUMENTARY OR OTHERWISE, REQUIRED OF HIM, MAY
TEND TO CRIMINATE HIM OR SUBJECT HIM TO A PENALTY OR FORFEITURE.  BUT
NO PERSON SHALL BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR FORFEITURE
FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER OR THING, CONCERNING WHICH
HE MAY TESTIFY, OR PRODUCE EVIDENCE, DOCUMENTARY OR OTHERWISE, BEFORE
SAID COMMISSION, OR IN OBEDIENCE TO ITS SUBPOENA, OR THE SUBPOENA OF
EITHER OF THEM, OR IN ANY SUCH CASE OR PROCEEDING: PROVIDED, THAT NO
PERSON SO TESTIFYING SHALL BE EXEMPT FROM PROSECUTION AND PUNISHMENT
FOR PERJURY COMMITTED IN SO TESTIFYING."  27 STAT. 443-444. 

FN12  ALTHOUGH CONGRESSMAN LITTLEFIELD REFERRED TO THIS DICTUM IN THE
DEBATE ON THE HOUSE VERSION OF THE BILL, 40 CONG. REC. 8738, HE DID NOT
INTIMATE THAT THE 1903 ACT WAS APPLICABLE TO CONGRESSIONAL
INVESTIGATIONS OR THAT THE PURPOSE OF THE 1906 ACT WAS TO MAKE IT SO
APPLICABLE.  ON THE CONTRARY, CONGRESSMAN LITTLEFIELD STATED THAT THE
SOLE PURPOSE OF THE ACT WAS TO LIMIT IMMUNITY TO SUBPOENAED AND SWORN
TESTIMONY.  HE SPECIFICALLY SAID, MOREOVER, THAT THE 1906 ACT AND THE
ACTS WHICH IT AMENDED WERE INTENDED TO APPLY ONLY TO A "CRIMINAL
PROSECUTION  ...  AND TO INVESTIGATIONS CONDUCTED BY THE INTERSTATE
COMMERCE COMMISSION  ...  OR BY THE COMMISSIONER OF CORPORATIONS  ...
," AND THAT THE 1906 ACT WAS INTENDED TO ASSURE THAT NO "PERSON SHALL
HAVE THE POWER TO OFFER IMMUNITY TO A WITNESS EXCEPT THE GOVERNMENT OF
THE UNITED STATES OR SOME OFFICER ACTING IN BEHALF THEREOF."  ID., AT
8739.  THIS LANGUAGE, IN ITS CONTEXT, WOULD NOT SEEM TO INCLUDE MEMBERS
OR COMMITTEES OF CONGRESS.  SEE ALSO H.R. REP. NO. 3797, 59TH CONG.,
1ST SESS. FURTHERMORE, EVEN IF WE WERE TO ASSUME ARGUENDO THAT THE
ARMOUR DECISION WAS BASED ON A CONSTRUCTION OF THE ACT OF FEBRUARY 25,
1903, WE WOULD BE HESITANT TO ACCEPT APPELLEE'S ARGUMENT THAT THE
FAILURE OF CONGRESS TO OVERRULE THAT CONSTRUCTION RESULTED IN AN
AMENDMENT BY IMPLICATION.  AMENDMENTS BY IMPLICATION, LIKE REPEALS BY
IMPLICATION, ARE NOT FAVORED.  SEE 1 SUTHERLAND, STATUTORY CONSTRUCTION
(3D ED.)  365-366 (CITING CASES).  AS THIS COURT SAID IN JONES V.
LIBERTY GLASS CO., 332 U.S. 524, 534:  "WE DO NOT EXPECT CONGRESS TO
MAKE AN AFFIRMATIVE MOVE EVERY TIME A LOWER COURT INDULGES IN AN
ERRONEOUS INTERPRETATION.  IN SHORT, THE ORIGINAL LEGISLATIVE LANGUAGE
SPEAKS LOUDER THAN SUCH JUDICIAL ACTION." 

FN13  SEE UNITED STATES V. MONIA, SUPRA, AT 429. 

FN14  THE SENATE VERSION OF THE BILL PREVAILED IN CONFERENCE AND WAS
ADOPTED.  SEE H.R.  REP. NO. 5049, 59TH CONG., 1ST SESS. 

FN15  SENATOR DANIEL'S SUPPOSITION THAT THE 1906 ACT "APPLIES" TO
CONGRESSIONAL COMMITTEES WAS PROBABLY BASED ON THE ERRONEOUS ASSUMPTION
THAT THE 1906 ACT, IN ADDITION TO AMENDING THE ACTS TO WHICH IT MADE
SPECIFIC REFERENCE, SEE NOTE 9, SUPRA, ALSO AMENDED 12 STAT. 333 WHICH
PROVIDED THAT: "THE TESTIMONY OF A WITNESS EXAMINED AND TESTIFYING
BEFORE EITHER HOUSE OF CONGRESS, OR ANY COMMITTEE OF EITHER HOUSE OF
CONGRESS, SHALL NOT BE USED AS EVIDENCE IN ANY CRIMINAL PROCEEDING
AGAINST SUCH WITNESS IN ANY COURT OF JUSTICE  ...  ."  THIS STATUTE WAS
SUPERSEDED IN 1954 BY 68 STAT. 745, 18 U.S.C. SEC 3486. 

FN16  ALTHOUGH THE 1906 AMENDMENT REFERRED TO THE ACT OF FEBRUARY 25,
1903, ALONG WITH OTHER IMMUNITY STATUTES, IN LIMITING IMMUNITY TO
PERSONS TESTIFYING UNDER OATH AND IN RESPONSE TO SUBPOENA, SENATOR KNOX
WAS CORRECT IN SUGGESTING THAT THE AMENDMENT WOULD HAVE LITTLE, IF ANY,
APPLICATION TO JUDICIAL TESTIMONY WHICH IS COMMONLY SWORN AND
SUBPOENAED. 

FN17  IN MONIA, WHICH INVOLVED A GRAND JURY INVESTIGATION, THE
APPROPRIATE "GOVERNMENT OFFICIALS" WERE THE ATTORNEY GENERAL AND HIS
SUBORDINATES.  IN ARMOUR THE APPROPRIATE GOVERNMENT OFFICIAL WAS THE
COMMISSIONER OF CORPORATIONS.  CONGRESS MAY OF COURSE DESIGNATE ITS OWN
MEMBERS AS APPROPRIATE OFFICIALS, AS IT HAS IN FACT DONE IN CERTAIN
LIMITED SITUATIONS NOT HERE INVOLVED, SEE NOTE 18, INFRA. 

IT IS TRUE THAT THE MONIA OPINION, WITH REGARD TO THE ISSUE RAISED IN
THAT CASE, CONSIDERED THE 1903 ACT AS HAVING THE SAME EFFECT AS THE
INTERSTATE COMMERCE ACT.  THE ISSUE IN THAT CASE WAS WHETHER A WITNESS
WAS REQUIRED TO CLAIM HIS PRIVILEGE AGAINST SELF-INCRIMINATION AS A
CONDITION OF OBTAINING IMMUNITY.  IT IS UNDISPUTED THAT THE 1906 ACT
STANDARDIZED THE RULES RELATING TO THE TYPES OF TESTIMONY WHICH WOULD
BE PRIVILEGED UNDER THE INTERSTATE COMMERCE ACT, THE COMMERCE AND LABOR
ACT, AND THE ACT OF FEBRUARY 25, 1903.  THE 1906 ACT DID NOT, HOWEVER,
STANDARDIZE (OR ALTER) THE TYPES OF PROCEEDINGS IN WHICH IMMUNITY COULD
BE OBTAINED. 

FN18  SEE IMMUNITY ACT OF 1954, 68 STAT. 745, 18 U.S.C. SEC 3486. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE APPELLEE WAS INDICTED FOR CONSPIRACY  (FN1)  AND VIOLATION OF SEC
1 OF THE SHERMAN ACT (FN2) SHORTLY AFTER HE HAD APPEARED AND TESTIFIED
ABOUT THE ALLEGED VIOLATION BEFORE A COMMITTEE OF CONGRESS IN OBEDIENCE
TO ITS SUBPOENA.  THE DISTRICT COURT DISMISSED THE INDICTMENT ON THE
GROUND THAT THE PROSECUTION WAS BARRED BY THE ANTITRUST IMMUNITY ACT OF
FEBRUARY 25, 1903,  (FN3)  AS AMENDED IN 1906.  (FN4)  THE IMMUNITY ACT
PROVIDES: 

"  ...  NO PERSON SHALL BE PROSECUTED OR BE SUBJECTED TO ANY PENALTY
OR FORFEITURE FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER, OR THING
CONCERNING WHICH HE MAY TESTIFY OR PRODUCE EVIDENCE, DOCUMENTARY OR
OTHERWISE, IN ANY PROCEEDING, SUIT, OR PROSECUTION UNDER SAID
INTERSTATE COMMERCE OR ANTITRUST  (FN5)  ACTS  ...  ." 

THE 1903 ACT WAS AMENDED IN 1906 SO AS TO LIMIT ITS APPLICATION "ONLY
TO A NATURAL PERSON WHO, IN OBEDIENCE TO A SUBPOENA, GIVES TESTIMONY
UNDER OATH OR PRODUCES EVIDENCE, DOCUMENTARY OR OTHERWISE, UNDER
OATH."  THE COURT HOLDS THAT THE WORD "PROCEEDING" IN THE 1903 ACT
"APPLIES ONLY TO PERSONS TESTIFYING IN JUDICIAL PROCEEDINGS."  THIS
NARROW AND GRUDGING INTERPRETATION OF THE ACT IS, IN MY JUDGMENT, NOT
JUSTIFIED BY EITHER THE LANGUAGE OR THE HISTORY OF THE LEGISLATION. 

THE COURT APPEARS TO FIND MUCH COMFORT FOR ITS HOLDING IN THE ACT'S
LANGUAGE APPROPRIATING FUNDS TO THE ATTORNEY GENERAL FOR THE EMPLOYMENT
OF SPECIAL COUNSEL AND AGENTS OF THE DEPARTMENT OF JUSTICE "TO CONDUCT
PROCEEDINGS, SUITS, AND PROSECUTIONS UNDER SAID INTERSTATE COMMERCE OR
ANTITRUST ACTS IN THE COURTS OF THE UNITED STATES."  THE IMMUNITY ACT
ITSELF WAS APPENDED TO THE APPROPRIATION LANGUAGE FOLLOWING THE WORD
"PROVIDED."  BUT THE APPROPRIATION PROVISION WAS MERELY UTILIZED AS A
LEGISLATIVE VEHICLE FOR PASSAGE OF THE SUBSTANTIVE IMMUNITY ACT IN THE
FORM OF A PROVISO.  THE LANGUAGE AFTER THE WORD "PROVIDED" IS A
SEPARATE AND DISTINCT IMMUNITY ENACTMENT, ITSELF PART OF AN IMMUNITY
PROGRAM ENACTED BY CONGRESS IN 1903 IN ORDER TO AID IN THE ENFORCEMENT
OF THE ANTITRUST ACTS BY COMPELLING WITNESSES TO TESTIFY UPON THIS
BROAD STATUTORY PROMISE OF IMMUNITY BY THE GOVERNMENT.  (FN6)  THIS
IMMUNITY PROVISION OF THE 1903 ENACTMENT IS COMPLETE IN ITSELF,
INDEPENDENT OF THE APPROPRIATION PROVISION.  IN FACT, SO INDEPENDENT IS
THE IMMUNITY PROVISION, THAT IN THE CODIFICATION OF THE STATUTE, 15
U.S.C.  SEC 32, THE APPROPRIATION PROVISION HAS BEEN DROPPED
ALTOGETHER, MAKING THE MAJORITY'S EFFORT TO LIMIT THE IMMUNITY
PROVISION'S LANGUAGE BY THAT OF THE APPROPRIATION PROVISION EVEN MORE
STRAINED.  THEREFORE THE 1903 ACT, AS AMENDED IN 1906, CLEARLY - UNLESS
THE MEANING OF ITS LANGUAGE IS TO BE AMENDED BY JUDICIAL DECREE -
STANDS AS A LASTING OBLIGATION UPON THE GOVERNMENT TO GIVE COMPLETE
IMMUNITY TO A WITNESS WHO TESTIFIES "IN OBEDIENCE TO A SUBPOENA  ...
UNDER OATH," NOT MERELY IN A "SUIT, OR PROSECUTION UNDER SAID ACTS" BUT
"IN ANY PROCEEDING  ...  UNDER SAID INTERSTATE COMMERCE OR ANTITRUST
ACTS."  THE WORD "PROCEEDING," BROAD ENOUGH TO INCLUDE TESTIMONY BEFORE
A GRAND JURY, HALE V. HENKEL, 201 U.S. 43, IS ALSO BROAD ENOUGH TO
INCLUDE TESTIMONY GIVEN UNDER OATH IN OBEDIENCE TO A SUBPOENA BEFORE
ANY FEDERAL AGENCY OR LEGISLATIVE COMMITTEE INVESTIGATING ANTITRUST
VIOLATIONS. 

THE HISTORICAL SETTING OF THE 1903 IMMUNITY ACT SHOWS, I THINK,
BEYOND ANY SHADOW OF A DOUBT, THAT THE WORD "PROCEEDING" WAS
DELIBERATELY CHOSEN IN ORDER TO PROVIDE A GRANT OF IMMUNITY FOR
TESTIMONY CONCERNING ANTITRUST VIOLATIONS GIVEN BEFORE INVESTIGATORY
AGENCIES THAT WERE WHOLLY NONJUDICIAL.  DURING THE MONTH OF FEBRUARY
1903, CONGRESS ALSO PASSED AN ACT, INCLUDING PROVISIONS FOR IMMUNITY,
WHICH ESTABLISHED THE DEPARTMENT OF COMMERCE AND LABOR AND CONFERRED
UPON THE COMMISSIONER OF CORPORATIONS (AN OFFICIAL OF THE DEPARTMENT OF
COMMERCE AND LABOR) THE INVESTIGATORY POWERS POSSESSED BY THE
INTERSTATE COMMERCE COMMISSION.  32 STAT.  825, 828.  SEE ALSO 32 STAT.
847, 848.  SOON AFTER THE 1903 LEGISLATION WAS PASSED, OFFICERS OF
ARMOUR & COMPANY TESTIFIED VOLUNTARILY BEFORE THE COMMISSIONER OF
CORPORATIONS CONCERNING ANTITRUST VIOLATIONS.  THE COMPANY AND THE
OFFICERS WERE LATER INDICTED BY A FEDERAL GRAND JURY FOR VIOLATION OF
THE SHERMAN ACT.  UNITED STATES DISTRICT JUDGE HUMPHREY IN 1905, IN
UNITED STATES V. ARMOUR & CO., 142 F. 808 (D.C.N.D. ILL.), DIRECTED A
VERDICT FOR THE INDIVIDUAL DEFENDANTS ON THE GROUND THAT THE ANTITRUST
IMMUNITY ACT OF FEBRUARY 25, 1903, GAVE INDIVIDUALS WHO TESTIFIED
BEFORE THE COMMISSIONER OF CORPORATIONS COMPLETE IMMUNITY FROM
PROSECUTION.  THE DISTRICT JUDGE HELD THAT THIS IMMUNITY WAS GRANTED
BOTH BY THAT ACT (THE ACT HERE IN QUESTION) AND BY THE COMMERCE AND
LABOR ACT OF 1903, SUPRA.  AS TO THE APPLICABILITY OF THE ACT BEFORE
US, HE SAID: 

"IF IT SHALL BE SAID THAT THE ACT OF FEBRUARY 14, 1903, ESTABLISHING
THE DEPARTMENT OF COMMERCE AND LABOR, ALLOWS IMMUNITY TO THE WITNESS
ONLY UPON THE CONDITIONS URGED BY THE GOVERNMENT, VIZ., THAT HE SHALL
HAVE RESISTED UNTIL REGULARLY SUBPOENAED AND SWORN, NO SUCH CONTENTION
CAN FAIRLY BE MADE AS TO THE IMMUNITY CLAUSE OF THE ACT OF FEBRUARY 25,
1903  ...  .  IT IS CONTENDED THAT  ... THE DEFENDANTS ARE ENTITLED TO
IMMUNITY UNDER THE INDEPENDENT AND UNCONDITIONAL ACT OF FEBRUARY 25,
1903, AND I AM OF OPINION THAT THEY ARE SO ENTITLED."  (FN7) 

JUDGE HUMPHREY HELD THAT BOTH THE COMMERCE AND LABOR ACT AND THE
ANTITRUST IMMUNITY ACT NOW BEFORE US GRANTED COMPLETE IMMUNITY.  HIS
HOLDING AS TO THE LATTER ACT CANNOT BE DISMISSED, AS THE COURT ATTEMPTS
TO DO, BY CALLING IT "DICTUM." 

THE SUBSEQUENT LEGISLATIVE TREATMENT OF THE ANTITRUST IMMUNITY ACT OF
1903 SUPPORTS JUDGE HUMPHREY'S HOLDING THAT THE COMPLETE IMMUNITY WHICH
THAT ACT GRANTED WAS NOT LIMITED TO TESTIMONY GIVEN IN JUDICIAL
PROCEEDINGS ONLY.  THE PART OF JUDGE HUMPHREY'S OPINION THAT CAUSED
GREAT CONCERN TO THE GOVERNMENT WAS HIS HOLDING THAT WITNESSES OBTAINED
COMPLETE IMMUNITY FROM PROSECUTION BASED ON THEIR TESTIMONY EVEN THOUGH
THEY HAD NOT BEEN SUBPOENAED OR PUT UNDER OATH.  THIS CONCERN PROMPTED
PRESIDENT THEODORE ROOSEVELT TO SEND A MESSAGE TO CONGRESS REQUESTING
THAT THE LAW BE AMENDED IN THIS RESPECT.  THE PRESIDENT'S MESSAGE
SPECIFICALLY SHOWED THAT HE DID NOT WANT TO TAKE AWAY THE IMMUNITY OF
WITNESSES WHO TESTIFIED OR PRODUCED DOCUMENTARY EVIDENCE, BUT SIMPLY
WANTED THE LAW TO GRANT IMMUNITY ONLY TO WITNESSES WHO APPEARED UNDER
SUBPOENA AND TESTIFIED UNDER OATH - THAT IS, THOSE WHO WERE COMPELLED
TO TESTIFY.  SHOWING THAT THIS WAS HIS ONLY OBJECTION TO JUDGE
HUMPHREY'S HOLDING, THE PRESIDENT IN HIS MESSAGE TOLD THE CONGRESS: 

"IT IS OF COURSE NECESSARY, UNDER THE CONSTITUTION AND THE LAWS, THAT
PERSONS WHO GIVE TESTIMONY OR PRODUCE EVIDENCE AS WITNESSES SHOULD
RECEIVE IMMUNITY FROM PROSECUTION."  (FN8) 

WITHOUT AT ALL ATTEMPTING TO LIMIT THE KINDS OF "PROCEEDING" IN WHICH
THE WITNESS CAN EARN THE PROMISED IMMUNITY, CONGRESS FOLLOWED THE
PRESIDENT'S SUGGESTION AND PROVIDED IN THE 1906 AMENDMENT TO THE 1903
IMMUNITY ACT NOW BEFORE US THAT THE IMMUNITY WOULD APPLY ONLY TO
INDIVIDUALS TESTIFYING IN OBEDIENCE TO SUBPOENA AND UNDER OATH.  AFTER
THOROUGH SCRUTINY OF THE ARMOUR DECISION, CONGRESS, AGREEING WITH
PRESIDENT ROOSEVELT, MADE NO MOVE TO CHANGE THE PART OF THE HOLDING
WHICH STATED FLATLY THAT THE ANTITRUST IMMUNITY PROVISION OF THE ACT OF
FEBRUARY 25, 1903, APPLIED TO WITNESSES TESTIFYING BEFORE THE
COMMISSIONER OF CORPORATIONS, AND SO WAS NOT LIMITED TO "JUDICIAL
PROCEEDINGS."  AND THIS PART OF THE ARMOUR HOLDING DID NOT PASS
UNNOTICED, FOR CONGRESSMAN LITTLEFIELD, WHO PRESENTED TO THE HOUSE OF
REPRESENTATIVES THE ATTORNEY GENERAL'S REQUEST FOR AN AMENDMENT TO THE
ANTITRUST IMMUNITY ACT, TOLD THE HOUSE: 

"PERHAPS I OUGHT TO SAY THAT, IN MY JUDGMENT, THE LEGISLATION UPON
WHICH JUDGE HUMPHREY LARGELY BASED HIS RULING WAS NOT THE ACT RELATING
TO INTERSTATE COMMERCE, UNDER WHICH THE INTERSTATE COMMERCE COMMISSION
ACTS, NOR THE ACT CREATING THE BUREAU OF CORPORATIONS, UNDER WHICH THE
COMMISSIONER OF CORPORATIONS ACTS, BUT PROBABLY THE RESOLUTION
APPROPRIATING $500,000 WHICH CONTAINED A VERY BROAD AND LOOSELY DRAWN
PROVISION IN RELATION TO IMMUNITY.  I AM NOT AUTHORIZED TO SAY UPON
WHAT THE JUDGE BASED HIS DECISION; BUT HAVING READ WHAT HE DID SAY, IT
IS RATHER MY JUDGMENT THAT HE WAS CONTROLLED IN HIS CONCLUSION VERY
LARGELY BY THE LANGUAGE CONTAINED IN THAT APPROPRIATION, WHICH WAS, IN
MY JUDGMENT, VERY MUCH BROADER THAN IS FOUND IN THE INTERSTATE-COMMERCE
ACT OR IN THE ACT CREATING THE DEPARTMENT OF COMMERCE AND LABOR." 
(FN9) 

AND IN THE SENATE DEBATE ON THE 1906 AMENDMENT, SENATOR DANIEL
EXPRESSED AN UNDERSTANDING WHICH NO ONE QUESTIONED: 

"I SUPPOSE THAT THE BILL UNDER CONSIDERATION AS IT READS NOW APPLIES
ONLY TO PERSONS WHO TESTIFY IN A JUDICIAL PROCEEDING OR TO THOSE WHO
ARE RESPONDING TO SOME BODY SUCH AS A CONGRESSIONAL COMMITTEE THAT HAS
THE RIGHT TO ENFORCE AN ANSWER FROM A WITNESS."  (FN10) 

SENATOR KNOX, THE MANAGER OF THE AMENDMENT IN THE SENATE, THEREUPON
EXPLAINED THE BILL TO SENATOR DANIEL IN DETAIL, NEVER CONTRADICTING
WHAT SENATOR DANIEL HAD SAID ON THIS POINT.  NEITHER CONGRESSMAN
LITTLEFIELD, SENATOR DANIEL, SENATOR KNOX, NOR ANY OTHER MEMBER OF
CONGRESS SUGGESTED ALTERING THE ARMOUR HOLDING THAT THE ANTITRUST
IMMUNITY ACT OF 1903 WAS NOT LIMITED TO JUDICIAL PROCEEDINGS - NONE, IN
FACT, EVER QUESTIONED IT - BECAUSE THAT HOLDING, IT MAY FAIRLY BE
INFERRED, CORRECTLY READ THE INTENT OF AN ALMOST IDENTICAL CONGRESS IN
PASSING THE ACT THREE YEARS EARLIER.  (FN11) 

FROM THAT DAY UNTIL THIS NO ONE SEEMS EVER TO HAVE DOUBTED THAT THIS
READING OF THE 1903 ANTITRUST IMMUNITY ACT WAS CORRECT.  IN FACT, IN
1942 THIS COURT OBVIOUSLY READ THE STATUTE THE SAME WAY IN UNITED
STATES V. MONIA, 317 U.S. 424.  MONIA AND ANOTHER CLAIMED COMPLETE
IMMUNITY UNDER THAT ACT AS AMENDED IN 1906 BECAUSE THEY HAD TESTIFIED
BEFORE A FEDERAL GRAND JURY INQUIRING INTO ALLEGED VIOLATIONS OF THE
FEDERAL ANTITRUST LAWS.  THE ACT WAS FULLY CONSIDERED IN THE MAJORITY
OPINION BY MR. JUSTICE ROBERTS AND IN THE DISSENTING OPINION OF MR.
JUSTICE FRANKFURTER.  NOT ONLY WAS THERE IN THAT CASE NO INTIMATION
THAT THE IMMUNITY PROVIDED IN THE ACT WAS FOR TESTIMONY GIVEN BEFORE
JUDICIAL AGENCIES ONLY, BUT BOTH OPINIONS WENT ON A PRECISELY OPPOSITE
ASSUMPTION.  IN HOLDING THAT THE ACT GAVE IMMUNITY EVEN TO A WITNESS
WHO HAD NOT ASSERTED HIS FIFTH AMENDMENT PRIVILEGE AGAINST BEING
COMPELLED TO TESTIFY AGAINST HIMSELF, MR. JUSTICE ROBERTS SPEAKING FOR
THE COURT TREATED THE 1903 ACT BEFORE US AS COVERING THE SAME KINDS OF
"PROCEEDINGS" AS THE IMMUNITY PROVISIONS OF THE INTERSTATE COMMERCE
ACT, AS AMENDED IN 1893,  (FN12)  WHICH GAVE A COMPLETE IMMUNITY FOR
TESTIMONY GIVEN BEFORE THE COMMISSION.  MOREOVER, IN HIS DETAILED
DISSENT MR. JUSTICE FRANKFURTER REFERRED AT LENGTH TO THE IMMUNITY
PROVISIONS CONTAINED IN VARIOUS STATUTES ESTABLISHING GOVERNMENTAL
AGENCIES BOTH BEFORE AND AFTER THE PASSAGE OF THE 1903 ACT, SUCH AS THE
SECURITIES ACT,  (FN13)  THE PUBLIC UTILITY HOLDING COMPANY ACT,
(FN14)  THE MOTOR CARRIER ACT,  (FN15)  THE FAIR LABOR STANDARDS ACT,
(FN16)  AND VARIOUS OTHERS.  317 U.S. 424, 431.  SURELY ALL THESE WERE
NOT CITED IN THE BELIEF THAT THE 1903 ACT RELATED TO TESTIMONY GIVEN
BEFORE JUDICIAL BODIES ONLY.  IT IS PLAIN BEYOND DOUBT THAT THEY WERE
REFERRED TO ON THE ASSUMPTION THAT THE 1903 ACT GRANTED WHATEVER
IMMUNITY IT DID, NOT MERELY FOR TESTIMONY GIVEN BEFORE JUDICIAL BODIES,
BUT FOR TESTIMONY GIVEN BEFORE ALL THE VARIOUS GOVERNMENTAL AGENCIES
THAT SUBPOENA WITNESSES TO GIVE EVIDENCE BEFORE THEM ON ANTITRUST
MATTERS. 

THE ANTITRUST IMMUNITY ACT OF 1903 WAS PASSED AT A TIME WHEN THE FEAR
OF PROSECUTION WAS MAKING TESTIMONY FROM WITNESSES OFTEN IMPOSSIBLE TO
OBTAIN AND THEREBY IMPEDING ENFORCEMENT OF THE ANTITRUST LAWS.  IT WAS
PASSED BY A CONGRESS FRIENDLY TO THOSE LAWS, NOT TO FRUSTRATE BUT TO
HELP ENFORCE THEM.  (FN17)  WHETHER IT WAS A WISE OR, IN THE CASE OF AN
UNWILLING WITNESS, CONSTITUTIONALLY LEGITIMATE  (FN18)  MEANS FOR
CONGRESS TO USE IN SEEKING THAT GOAL IS NOT THE ISSUE IN THIS CASE. 
WISE OR UNWISE, IT WAS A SOLEMN PROMISE MADE BY CONGRESS WHICH I THINK
THE GOVERNMENT SHOULD KEEP, JUST AS I THOUGHT THAT THE GOVERNMENT
SHOULD HAVE BEEN COMPELLED TO KEEP A SOLEMN PROMISE OF IMMUNITY MADE BY
THE SECRETARY OF THE TREASURY IN SHOTWELL MFG. CO. V. UNITED STATES,
371 U.S. 341, 367 (DISSENTING OPINION).  THE VERY FACT THAT THE COURT
MUST LABOR SO LONG AND HARD TO REACH ITS RESULT IS IN MY JUDGMENT
STRONG EVIDENCE THAT THAT RESULT SHOULD NOT HAVE BEEN REACHED, FOR I
THINK THAT WHEN THE GOVERNMENT MAKES AN OBLIGATION IN BROAD TERMS ON
WHICH INDIVIDUALS HAVE A REASONABLE RIGHT TO RELY, IT SHOULD NOT SEEK
TO HAVE ALL DOUBTS RESOLVED IN ITS OWN FAVOR AGAINST THE PRIVATE
CITIZENS WHO HAVE TAKEN IT AT ITS WORD.  IMPORTANT AS I BELIEVE THE
ANTITRUST LAWS TO BE, I BELIEVE IT IS MORE IMPORTANT STILL THAT THERE
SHOULD BE NO ROOM FOR ANYONE TO DOUBT THAT WHEN THE GOVERNMENT MAKES A
PROMISE, IT KEEPS IT.  CF. FEDERAL POWER COMM'N V. TUSCARORA INDIAN
NATION, 362 U.S. 99, 124 (DISSENTING OPINION). 

I WOULD AFFIRM THE JUDGMENT. 

FN1  62 STAT. 701, 18 U.S.C. SEC 371. 

FN2  26 STAT. 209, AS AMENDED, 15 U.S.C. SEC 1. 

FN3  32 STAT. 854, 904, 15 U.S.C. SEC 32. 

FN4  34 STAT. 798, 15 U.S.C. SEC 33. 

FN5  THE ACTS WITH RESPECT TO WHICH IMMUNITY FROM PROSECUTION WAS
GIVEN ARE THE INTERSTATE COMMERCE ACT, 24 STAT. 379, AS AMENDED, 49
U.S.C. SECS 1-27, 41-43, 301-327, THE SHERMAN ACT, 26 STAT. 209, AS
AMENDED, 15 U.S.C. SECS 1-7, AND THE ANTITRUST PROVISIONS OF THE WILSON
TARIFF ACT OF 1894, SECS 73-76, 28 STAT. 509, 570, AS AMENDED, 15
U.S.C. SECS 8-11. 

FN6  SEE ALSO THE IDENTICAL IMMUNITY PROVISIONS IN THE COMMERCE AND
LABOR ACT OF FEBRUARY 14, 1903, SEC 6, 32 STAT. 825, 828, INCORPORATING
BY REFERENCE COMPULSORY TESTIMONY AMENDMENT OF 1893 TO THE INTERSTATE
COMMERCE ACT, 27 STAT. 443, 49 U.S.C. SEC 46, AND IN THE ELKINS
AMENDMENT TO THE INTERSTATE COMMERCE ACT, ACT OF FEBRUARY 19, 1903, SEC
3, 32 STAT. 847, 848, 49 U.S.C. SECS 41-43. 

FN7  142 F., AT 826. 

FN8  MESSAGE OF THE PRESIDENT, H.R. DOC. NO. 706, 59TH CONG., 1ST
SESS., P. 2. 

FN9  40 CONG. REC. 8738. 

FN10  40 CONG. REC. 7657. 

FN11  I AGREE WITH THE COURT THAT CONGRESS IN THE 1906 STATUTE DID
NOT "MANIFEST ANY INTENT TO ENLARGE THE REACH OF THE IMMUNITY PROVISION
OF THE ACT OF FEBRUARY 25, 1903, TO INCLUDE NONJUDICIAL PROCEEDINGS." 
ANTE, P. 104.  BUT THE ACT OF 1903, AS POINTED OUT ABOVE, CLEARLY
APPLIED TO NONJUDICIAL PROCEEDINGS WITHOUT ANY ENLARGEMENT; IT WAS
NEVER LIMITED TO JUDICIAL "PROCEEDINGS," BUT GRANTED COMPLETE IMMUNITY
TO WITNESSES WHO TESTIFIED BEFORE GOVERNMENTAL AGENCIES OTHER THAN
THOSE THAT COULD BE CALLED JUDICIAL. 

FN12  27 STAT. 443, 49 U.S.C. SEC 46. 

FN13  48 STAT. 74, 87, 15 U.S.C. SEC 77VC). 

FN14  49 STAT. 803, 832, 15 U.S.C. SEC 79R. 

FN15  49 STAT. 543, 550, 49 U.S.C. SEC. 305(D). 

FN16  52 STAT. 1060, 1065, 29 U.S.C. SEC. 209. 

FN17  SEE 36 CONG. REC. 411-419.  THE PROVISION WAS NOT DEBATED IN
THE SENATE.  SEE ID., 989-990. 

FN18  COMPARE ULLMANN V. UNITED STATES, 350 U.S. 422, 440 (DISSENTING
OPINION). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I AM INCLINED TO CONSTRUE THIS IMMUNITY ACT MORE IN HARMONY WITH ITS
LITERAL LANGUAGE THAN IS THE COURT; AND THE REASONS I DO SO ARE IN PART
THOSE STATED BY MR. JUSTICE BLACK AND IN PART THE NATURE OF THE MODERN
CONGRESSIONAL COMMITTEE.  THE TRIAL-NATURE OF THE MODERN INVESTIGATING
COMMITTEE ARGUES STRONGLY FOR A CONSTRUCTION OF THIS ACT THAT GIVES
IMMUNITY TO ONE SUBJECTED TO SCRUTINY AND PROBING UNDER THE FULL GLARE
OF TODAY'S HEARING METHODS.    CONGRESSIONAL INVESTIGATIONS AS THEY
HAVE EVOLVED, ARE IN PRACTICE "PROCEEDINGS" OF A GRAVE NATURE SO FAR AS
INDIVIDUAL LIBERTIES ARE CONCERNED.  NOT ALL COMMITTEE HEARINGS ARE
"TRIALS" OF THE WITNESS; NOT ALL COMMITTEE HEARINGS ARE TELEVISED OR
BROADCAST; AND SO FAR AS APPEARS THIS WITNESS WAS NOT SUBJECTED TO ANY
SUCH ORDEAL.  (FN1)  BUT THE PROBLEM WITH WHICH WE DEAL CONCERNS NOT A
PARTICULAR COMMITTEE NOR A PARTICULAR HEARING BUT THE GENERALIZED
MEANING OF "PROCEEDING" AS USED IN THE ACT OF FEBRUARY 25, 1903. 

COURTS CANNOT ENJOIN A COMMITTEE FROM QUESTIONING A WITNESS ANYMORE
THAN THEY CAN ENJOIN PASSAGE OF A PALPABLY UNCONSTITUTIONAL BILL.  SEE
NELSON V. UNITED STATES, 93 U.S. APP. D.C.  14, 208 F.2D 505.  BUT
COURTS, KNOWING THE MANNER IN WHICH COMMITTEES OFTEN OPERATE, ARE
PROPERLY ALERT EITHER IN DENYING LEGAL EFFECT TO WHAT HAS BEEN DONE OR
IN TAKING OTHER STEPS PROTECTIVE OF THE RIGHTS OF THE ACCUSED.  (FN2)
SEE NELSON V. UNITED STATES, 93 U.S. APP.  D.C., AT 22, 208 F.2D, AT
513.  THAT IS ONE REASON WHY I WOULD NOT IMPORT ANY AMBIGUITIES INTO
THIS IMMUNITY ACT TO THE DISADVANTAGE OF THE ACCUSED. 

THE PRESENT INVESTIGATION WAS IN MY VIEW A "PROCEEDING, SUIT, OR
PROSECUTION" UNDER THE ANTITRUST LAWS WITHIN THE MEANING OF THE ACT OF
FEBRUARY 25, 1903.  THE HOUSE COMMITTEE BEFORE WHICH WELDEN TESTIFIED
WAS TRENCHING ON THE SAME GROUND AS THE PRESENT ANTITRUST PROSECUTION. 
ITS POWER TO PROCEED DERIVED OF COURSE FROM THE LEGISLATIVE
REORGANIZATION ACT OF 1946, 60 STAT. 812, THE RULES AND REGULATIONS OF
THE HOUSE, OR A SPECIAL RESOLUTION.  THE POWER TO INVESTIGATE EXTENDS
TO THE MANNER IN WHICH LAWS ARE BEING ADMINISTERED AND TO THE NEED FOR
NEW LAWS.  WATKINS V. UNITED STATES, 354 U.S. 178, 187.  THE QUESTIONS
PUT BY THE HOUSE COMMITTEE WERE ALLOWABLE, AS THEY CLEARLY WERE, ONLY
BECAUSE THEY PERTAINED TO THE MANNER IN WHICH THE ANTITRUST LAWS WERE
OPERATING OR TO THE NEED FOR MORE EFFECTIVE LAWS.  THEY WERE THEREFORE
"UNDER" THE ANTITRUST LAWS. 

WE HAVE REPEATEDLY SAID THAT A CONGRESSIONAL INVESTIGATION WHICH
EXPOSES FOR EXPOSURE'S SAKE OR WHICH IS "CONDUCTED SOLELY FOR THE
PERSONAL AGGRANDIZEMENT OF THE INVESTIGATORS OR TO 'PUNISH' THOSE
INVESTIGATED IS INDEFENSIBLE."  WATKINS V. UNITED STATES, 354 U.S., AT
187.  CONGRESS IS NOT A LAW ENFORCEMENT AGENCY; THAT POWER IS ENTRUSTED
TO THE EXECUTIVE.  CONGRESS IS NOT A TRIAL AGENCY; THAT POWER IS
ENTRUSTED TO THE JUDICIARY.  SOME ELEMENTS OF A "FAIR" HEARING ARE
PROVIDED BY COMMITTEE RULES (YELLIN V. UNITED STATES, 374 U.S. 109);
SOME BY CONSTITUTIONAL REQUIREMENTS.  BY REASON OF THE FIRST AMENDMENT
CONGRESS, BEING UNABLE TO ABRIDGE FREEDOM OF SPEECH OR FREEDOM OF THE
PRESS, MAY NOT PROBE INTO WHAT A WITNESS READS (CF. UNITED STATES V.
RUMELY, 345 U.S. 41), OR WHY A PUBLISHER CHOSE ONE EDITORIAL POLICY
RATHER THAN ANOTHER.  SINCE BY REASON OF THE FIRST AMENDMENT CONGRESS
MAY MAKE NO LAW "PROHIBITING THE FREE EXERCISE" OF RELIGION, IT MAY NOT
ENTER THE FIELD THROUGH INVESTIGATION AND PROBE THE MINDS OF WITNESSES
AS TO WHETHER THEY GO TO CHURCH OR TO THE CONFESSIONAL REGULARLY, WHY
THEY CHOSE THIS CHURCH RATHER THAN THAT ONE, ETC.  BY REASON OF THE
SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT, WITNESSES MAY REFUSE
TO ANSWER CERTAIN QUESTIONS.  SEE QUINN V. UNITED STATES, 349 U.S. 155;
EMSPAK V. UNITED STATES, 349 U.S. 190; BART V. UNITED STATES, 349 U.S.
219. 

THERE ARE OTHER LIMITATIONS.  "THE SENATE, FOR INSTANCE, COULD NOT
COMPEL A WITNESS TO TESTIFY IN A SENATE INVESTIGATION WHOSE SOLE AND
AVOWED PURPOSE WAS TO DETERMINE WHETHER A PARTICULAR FEDERAL OFFICIAL
SHOULD BE IMPEACHED, SINCE ONLY THE HOUSE CAN IMPEACH.  THE HOUSE COULD
NOT FORCE A WITNESS TO TESTIFY IN A HOUSE INVESTIGATION WHOSE SOLE AND
AVOWED PURPOSE WAS TO DECIDE THE GUILT OF A PERSON ALREADY IMPEACHED,
OR TO DETERMINE WHETHER OR NOT A TREATY SHOULD BE RATIFIED, SINCE THE
CONSTITUTION ENTRUSTS THESE FUNCTIONS OF THE SENATE.  NEITHER HOUSE
COULD CONDUCT AN INVESTIGATION FOR THE SOLE AND AVOWED PURPOSE OF
DETERMINING WHETHER AN OFFICIAL OF THE STATE OF NEW YORK SHOULD BE
IMPEACHED, SINCE THAT DETERMINATION IS RESERVED TO THE LEGISLATURE OF
THAT STATE."  SNEE, TELEVISING CONGRESSIONAL HEARINGS, 42 GEO. L.J. 1,
9 (1953). 

IN THESE AND OTHER RELATED WAYS, CONGRESSIONAL COMMITTEES ARE FENCED
IN.  YET IN THE VIEW OF SOME OF US THE TENDENCY HAS BEEN TO TRENCH ON
FIRST AMENDMENT RIGHTS.  SEE BRADEN V. UNITED STATES, 365 U.S. 431;
WILKINSON V. UNITED STATES, 365 U.S. 399; BARENBLATT V. UNITED STATES,
360 U.S. 109; GIBSON V. FLORIDA LEGISLATIVE COMM., 372 U.S. 539.  THERE
WAS A TIME WHEN A COMMITTEE, KNOWING THAT A WITNESS WOULD NOT ANSWER A
QUESTION BY REASON OF THE FIFTH AMENDMENT, WOULD NOT PUT THE QUESTION
TO HIM.  TODAY, WITNESSES WHO INVOKE THE FIFTH AMENDMENT AT THE
THRESHOLD HAVE BEEN MINUTELY EXAMINED, APPARENTLY TO SEE HOW MANY TIMES
THEY CAN BE FORCED TO INVOKE IT.  (FN3)  HEARINGS HAVE INDEED OFTEN
BECOME A SPECTACLE,  (FN4)  SOME OF THE REASONS BEING SUCCINCTLY STATED
BY THE EXPERIENCED CHAIRMAN OF THE SENATE COMMITTEE ON GOVERNMENT
OPERATIONS, AND HEAD OF THE PERMANENT COMMITTEE ON INVESTIGATIONS,
SENATOR MCCLELLAN OF ARKANSAS: 

"FIRST LET ME SAY THAT THE PRIMARY PURPOSE AND ACTUALLY THE ONLY
LEGITIMATE PURPOSE FOR SUCH HEARINGS MUST BE A LEGISLATIVE PURPOSE, BUT
OUT OF THAT ALSO FLOWS THE OPPORTUNITY TO DISSEMINATE INFORMATION OF
GREAT VALUE AND ADVANTAGE TO THE PUBLIC.  BECAUSE THE PUBLIC OF COURSE
IS INTERESTED IN LEGISLATION AND UPON WHAT YOU PREMISE IT - UPON WHAT
IS THE NEED FOR IT.  IT ALL FITS IN.  NOW MY POSITION HAS BEEN, AND
THERE ARE THOSE, WHO, I'M SURE, DISAGREE WITH ME, WHEN WE HOLD A PUBLIC
HEARING IT IS PUBLIC.  THOSE WHO HAVE THE OPPORTUNITY, WHO CAN
CONVENIENTLY AT SOME TIMES ATTEND IN PERSON AND WITNESS EVERYTHING THAT
OCCURS - THE PRESS IS PRESENT TO MAKE A REPORTING ON WHAT OCCURS -
RADIO IS THERE TO DISSEMINATE THE INFORMATION AS IT IS PRODUCED - I CAN
SEE NO GOOD REASON FOR BARRING TELEVISION.  THAT TOO IS A MEDIA OF
COMMUNICATION, AND IN MY JUDGMENT SOMETIMES IS THE MOST EFFECTIVE, NEXT
TO ACTUALLY BEING PRESENT IN PERSON AND WITNESSING WHAT HAS OCCURRED. 
SO I HAVE ALWAYS FELT THAT IF THE PRESS IS TO BE PRESENT, RADIO
COVERAGE IS TO BE GIVEN, THE TELEVISION IS ENTITLED TO THE SAME
PRIVILEGES.  I DO THINK THAT THE LIGHTS BEING ON IS A DISTRACTION - I
THINK THE LIGHTS SHOULD BE TURNED OFF AND WE HAVE ALWAYS OBSERVED THAT
EXCEPT WHERE A MAN IS SIMPLY TAKING THE FIFTH AMENDMENT.  IF HE'S
TAKING THE FIFTH AMENDMENT AND READING FROM A CARD, THE LIGHT HELPS HIM
TO SEE TO READ THE SCRIPT ON THE CARD AND I DON'T SEE ANY REASON TO
TURN THEM OFF."  (FN5) 

A STRONG CASE HAS BEEN MADE FOR HOLDING THESE "SPECTACLES" TO BE OUT
OF BOUNDS: 

"1.  THE USE OF THESE PUBLICITY MEDIA BEARS NO REAL AND SUBSTANTIAL
RELATION TO ANY LEGITIMATE PURPOSE OF A CONGRESSIONAL INVESTIGATING
COMMITTEE.  YET, IT CONSTITUTES A SUBSTANTIAL RESTRAINT UPON THE
LIBERTY OF AN UNWILLING WITNESS.  HENCE TO FORCE HIM TO TESTIFY BEFORE
THESE MEDIA EXCEEDS THE CONSTITUTIONAL BOUNDS OF THE INVESTIGATING
POWER; THE ATTEMPT TO DO SO, AND A FORTIORI PUNISHMENT UNDER R.S. 102
(1875), 2 U.S.C. SEC 192 (1946 ED.)  IS THEREFORE A DENIAL OF
SUBSTANTIVE DUE PROCESS UNDER THE FIFTH AMENDMENT. 

"2.  THE USE OF THESE MEDIA CREATES AN ATMOSPHERE IN WHICH IT IS
NORMALLY UNFAIR TO COMPEL THE TESTIMONY OF AN UNWILLING WITNESS, AND IN
WHICH RIGHTS GUARANTEED BY THE CONSTITUTION ARE PLACED IN JEOPARDY. 
HENCE TO USE THESE MEDIA, WITHOUT REASONABLE NECESSITY, CONSTITUTES A
DENIAL OF PROCEDURAL DUE PROCESS UNDER THE SAME AMENDMENT."  (FN6) 

PRESIDENT TRUMAN CONDEMNED "SPECTACLES" OF THAT KIND.  HIS SPECIFIC
OBJECTION WAS DIRECTED TO  THE TELEVISED HEARINGS BY THE KEFAUVER
COMMITTEE IN 1951: 

"THE PRESIDENT IS MOST SERIOUSLY CONCERNED.  THE TROUBLE WITH
TELEVISION, HE SAID, IS THAT A MAN IS HELD BEFORE CAMERAS AND
40,000,000 PEOPLE MORE OR LESS HEAR HIM CHARGED WITH SO AND SO, AND THE
PUBLIC, UNTRAINED GENERALLY WITH EVALUATING THE PRESENTATION OF
EVIDENCE, IS INCLINED TO THINK HIM GUILTY JUST BECAUSE HE IS CHARGED. 

"IT IS THE VERY NEGATION OF JUDICIAL PROCESS, WITH THE COMMITTEE
ACTING AS PROSECUTOR AND DEFENSE AND THE PUBLIC ACTING AS THE JURY." 
(FN7) 

ALAN BARTH REVIEWED THE NATURE OF THE "LEGISLATIVE TRIAL": 

"THE LEGISLATIVE TRIAL CARRIES WITH IT SANCTIONS OF A SEVERE ORDER. 
IT IS, TO BEGIN WITH, UNIMPEDED BY ANY STATUTE OF LIMITATIONS; AN ERROR
COMMITTED IN THE 1930S MAY BE JUDGED IN THE 1950S - AND WITHOUT ANY
ALLOWANCE WHATEVER FOR ALTERED CONDITIONS OR A CHANGED POLITICAL
CLIMATE.  DEFENDANTS MAY BE SUBJECTED TO DOUBLE OR TRIPLE JEOPARDY,
THAT IS, THEY MAY BE TRIED BY DIFFERENT COMMITTEES FOR THE SAME DEED. 
THE PUNISHMENTS METED OUT ARE UNINHIBITED BY ANY SORT OF CRIMINAL
CODE.  PERSONS CONVICTED IN THE COURTS OF CONGRESS MAY NOT SUFFER
IMPRISONMENT, BUT THEY ARE LIKELY TO BE SUBJECTED, IN ADDITION TO LOSS
OF REPUTATION, TO A BLACK-LISTING WHICH MAY EFFECTIVELY DENY THEM ANY
MEANS OF GAINING A LIVELIHOOD."  (FN8) 

BARTH GOES ON TO SAY: 

"THE LEGISLATIVE TRIAL SERVES THREE DISTINCT THOUGH RELATED PURPOSES:
(1) IT CAN BE USED TO PUNISH CONDUCT WHICH IS NOT CRIMINAL; (2) IT CAN
BE USED TO PUNISH SUPPOSEDLY CRIMINAL CONDUCT IN THE ABSENCE OF
EVIDENCE REQUISITE TO CONVICTION IN A COURT OF LAW; AND (3) IT CAN BE
USED TO DRIVE OR TRAP PERSONS SUSPECTED OF 'DISLOYALTY' INTO COMMITTING
SOME COLLATERAL CRIME SUCH AS PERJURY OR CONTEMPT OF CONGRESS, WHICH
CAN THEN BE SUBJECTED TO PUNISHMENT THROUGH A JUDICIAL PROCEEDING." 
(FN9) 

BENJAMIN V. COHEN HAS SHOWN WHY THE LEGISLATIVE TRIAL HAS NO PLACE IN
OUR SYSTEM: 

"THERE IS NO EXCUSE FOR CONGRESSIONAL COMMITTEES ACTING AS 'PEOPLE'S
COURTS' FOLLOWING TOTALITARIAN PATTERNS. 

"LEGISLATIVE TRIALS, SINCE THE TRIAL OF SOCRATES, HAVE HAD AN ODIOUS
HISTORY.  LEGISLATIVE TRIALS COMBINE THE FUNCTIONS OF PROSECUTOR AND
JUDGE AND DENY TO THE ACCUSED THE RIGHT TO IMPARTIAL AND INDEPENDENT
JUDGMENT.  LEGISLATIVE TRIALS ARE SUBJECT TO THE INFLUENCE OF
PARTISANSHIP, PASSION AND PREJUDICE.  LEGISLATIVE TRIALS ARE POLITICAL
TRIALS.  LET US REMEMBER THAT IN THE PAST LEGISLATIVE JUSTICE HAS
TENDED TO DEGENERATE INTO MOB INJUSTICE."  (FN10) 

THE LEGISLATIVE "TRIAL" IS A PHENOMENON THAT SENATOR CAIN ONCE
DESCRIBED AS A COMMITTEE "RUNNING WILD," BECOMING "VICTIMS OF A WAVE OF
EMOTION WHICH THEY CREATED, BUT OVER WHICH THEY HAD NO CONTROL." 
(FN11) 

SOME MAY SEE WISDOM IN THIS MODERN KIND OF "TRIAL BY COMMITTEE," SO
TO SPEAK, WITH COMMITTEES AND PROSECUTORS COMPETING FOR VICTIMS.  BUT
THE MORE I SEE OF THE AWESOME POWER OF GOVERNMENT TO RUIN PEOPLE, TO
DRIVE THEM FROM PUBLIC LIFE, TO BRAND THEM FOREVER AS UNDESIRABLE, THE
DEEPER I FEEL THAT PROTECTIVE MEASURES ARE NEEDED.  I SPEAK NOW NOT OF
CONSTITUTIONAL POWER, BUT OF THE MANNER IN WHICH A STATUTE SHOULD BE
READ.  I THEREFORE INCLINE TO CONSTRUE THE IMMUNITY ACT FREELY TO HOLD
THAT HE WHO RUNS THE GANTLET OF A COMMITTEE CANNOT BE "TRIED" AGAIN. 

FN1  RESPONDENT'S TESTIMONY BEFORE THE COMMITTEE APPEARS IN HEARINGS,
SPECIAL SUBCOMMITTEE OF THE HOUSE SELECT COMMITTEE ON SMALL BUSINESS,
86TH CONG., 2D SESS., PURSUANT TO H. RES.  51, PT. IV, PP. 665-700. 

FN2  FOR ANALOGOUS INSTANCES OF THE ALERTNESS OF THE COURT TO PROTECT
AN ACCUSED AGAINST THE EFFECT OF PRETRIAL PUBLICITY, SEE IRVIN V. DOWD,
366 U.S. 717, RIDEAU V. LOUISIANA, 373 U.S. 723. 

FN3  SEE HEARINGS BEFORE SENATE COMMITTEE ON RULES AND ADMINISTRATION
ON FINANCIAL OR BUSINESS INTERESTS OF OFFICERS OR EMPLOYEES OF THE
SENATE, 88TH CONG., 1ST AND 2D SESS., PP. 1337-1363 (ROBERT G. BAKER);
HEARINGS BEFORE SENATE SELECT COMMITTEE ON IMPROPER ACTIVITIES IN THE
LABOR OR MANAGEMENT FIELD, 85TH CONG., 1ST SESS., PP. 1511-1578, 1654
1684, 2038-2047, 2374-2405 (DAVE BECK); BECK V. WASHINGTON, 369 U.S.
541, 583-587 (DISSENTING OPINION). 

FN4  BARTH, GOVERNMENT BY INVESTIGATION (1955), P. 81; ROGGE, THE
FIRST AND THE FIFTH (1960), P. 204; AMERICAN BAR ASSOCIATION, REPORT ON
CONGRESSIONAL INVESTIGATIONS (1954). 

FN5  METROPOLITAN BROADCASTING, "OPINION IN THE CAPITAL," INTERVIEW
WITH SENATOR JOHN MCCLELLAN, MARCH 1, 1964.  FOR A LIKE DEFENSE OF
TELEVISED HEARINGS SEE SENATOR KEFAUVER, 97 CONG. REC. 9777 ET SEQ. 

FN6  SNEE, TELEVISING CONGRESSIONAL HEARINGS, 42 GEO. L.J. 1, 2-3
(1953). 

FN7  WHITE HOUSE PRESS RELEASE, AS QUOTED BY CHICAGO DAILY NEWS, JUNE
27, 1951, P. 49, COL. 5, AND QUOTED IN SNEE, SUPRA, NOTE 6, AT 2. 

CONGRESSMAN MAGEE SAID IN 97 CONG. REC. A1145:  "  ...  THERE IS NO
MORE REASON FOR TELEVISING CRIME INVESTIGATIONS THAN THERE IS IN
TELEVISING CRIMINAL TRIALS.  OF NECESSITY, MANY OF OUR CRIMINAL CASES
DEVELOP LURID AND OBSCENE TESTIMONY.  SOME OF IT IS UNFIT TO PUT IN
PUBLIC PRINT.  CERTAINLY, IT IS UNFIT TO GO OUT OVER THE AIR WAVES. 
MANY WITNESSES WOULD DESPAIR AT THE THOUGHT OF TESTIFYING WHEN THEY
WERE BEING VIEWED BY TELEVISION.  IT IS BAD ENOUGH FOR A TIMID WITNESS
TO FACE A SMALL COURTROOM OF SPECTATORS; BUT IT WOULD BE FAR WORSE IF
THAT PERSON KNEW THAT HE OR SHE WAS BEING SPIED UPON BY TELEVISION
ADDICTS ALL OVER THE NATION.  CERTAINLY IT WOULD NOT BE CONDUCIVE TO
CLEAR THOUGHT OR EXPRESSION.  I CANNOT FEEL THAT THE COURTS WILL EVER
FORCE WITNESSES TO SUBJECT THEMSELVES TO THIS NEEDLESS PROCEDURE.  TO
ME THE WHOLE IDEA IS INANE AND REPULSIVE.  IT WOULD BRING THE CONGRESS
TO A NEW LOW LEVEL IN PUBLIC ESTEEM.  THE DIGNITY OF THE COURTROOM
WOULD BECOME ONLY A MEMORY WHILE ITS SACRED PORTALS BECAME A TESTING
GROUND FOR THE FUTURE FAYE EMERSONS AND JIMMIE DURANTES."  AND SEE
GOSSETT, JUSTICE AND TV, 38 A.B.A.J. 15 (1952); YESAWICH, TELEVISING &
BROADCASTING TRIALS, 37 CORNELL L.Q. 701 (1952); ARNOLD, MOB JUSTICE
AND TELEVISION, 12 FED. COM. B.J. 4 (1951); KLOTS, TRIAL BY TELEVISION,
HARPER'S, OCTOBER 1951, 90; REPORT OF THE SPECIAL COMMITTEE ON
TELEVISING AND BROADCASTING, 77 REP. A.B.A., P. 607 ET SEQ. (1952). 
TELECASTING AND BROADCASTING OF COMMITTEE HEARINGS ARE BANNED BY THE
HOUSE.  SEE 98 CONG.  REC. 1334-1335, 1443, 1567-1571, 1689-1691, 1949
1952, 5394-5395, A1152-A1153, A1176, A1180, A1196, A1227; 108 CONG.
REC. 267-269. 

FN8  OP. CIT., SUPRA, NOTE 4, AT 82. 

FN9  ID., AT 83.    FN10  WHEN MEN FEAR TO SPEAK, FREEDOM WITHERS ON
THE VINE, ADDRESS, INDIANA B'NAI B'RITH CONVENTION, SEPT. 27, 1953. 
SEE DELANEY V. UNITED STATES, 199 F.2D 107, 113, WHERE THE COURT OF
APPEALS IN SETTING ASIDE A CONVICTION SAID: 

"THIS IS NOT A CASE OF PRE-TRIAL PUBLICITY OF DAMAGING MATERIAL,
TENDING TO INDICATE THE GUILT OF A DEFENDANT, DUG UP BY THE INITIATIVE
AND PRIVATE ENTERPRISE OF NEWSPAPERS.  HERE THE UNITED STATES, THROUGH
ITS LEGISLATIVE DEPARTMENT, BY MEANS OF AN OPEN COMMITTEE HEARING HELD
SHORTLY BEFORE THE TRIAL OF A PENDING INDICTMENT, CAUSED AND STIMULATED
THIS MASSIVE PRE-TRIAL PUBLICITY, ON A NATIONWIDE SCALE.  SOME OF THIS
EVIDENCE WAS INDICATIVE OF DELANEY'S GUILT OF THE OFFENSES CHARGED IN
THE INDICTMENT.  SOME OF THE DAMAGING EVIDENCE WOULD NOT BE ADMISSIBLE
AT THE FORTHCOMING TRIAL, BECAUSE IT RELATED TO ALLEGED CRIMINAL
DERELICTIONS AND OFFICIAL MISCONDUCT OUTSIDE THE SCOPE OF THE CHARGES
IN THE INDICTMENT.  NONE OF THE TESTIMONY OF WITNESSES HEARD AT THE
COMMITTEE HEARING RAN THE GANTLET OF DEFENSE CROSS-EXAMINATION.  NOR
WAS THE PUBLISHED EVIDENCE TEMPERED, CHALLENGED, OR MINIMIZED BY
EVIDENCE OFFERED BY THE ACCUSED."  SEE NELSON V. UNITED STATES, 93 U.S.
APP. D.C. 14, 208 F.2D 505. 

FN11 97 CONG. REC. 9768. 
..END :























378 REALTY CORP. V. NEW YORK CITY RENT AND REHABILITATION ADMINISTRATION
377 U.S. 124 


NO. 845.  DECIDED APRIL 20, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  REPORTED BELOW:  13 N.Y.2D 902, 193
N.E.2D 510. 


378 REALTY CORP. ET AL. V. NEW YORK CITY RENT AND REHABILITATION
ADMINISTRATION ET AL. 

PER CURIAM. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














VOKES V. CHICAGO 377 U.S. 124 


NO. 855.  DECIDED APRIL 20, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  REPORTED BELOW:  28 ILL. 2D 475, 193
N.E.2D 40. 


VOKES ET AL. V. CITY OF CHICAGO. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SANDERS V. ALABAMA 377 U.S. 125 


NO. 856, MISC.  DECIDED APRIL 20, 1964.  - CERTIORARI GRANTED AND
JUDGMENT REVERSED. 


SANDERS V. ALABAMA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED.  GIDEON
V. WAINWRIGHT, 372 U.S. 335; DRAPER V. WASHINGTON, 372 U.S. 487;
DOUGLAS V. CALIFORNIA, 372 U.S. 353. 
..END :















UNITED STATES V. EL PASO GAS CO. 376 U.S. 651 


NO. 94.  ARGUED FEBRUARY 25-26, 1964.  - DECIDED APRIL 6, 1964.  -
REVERSED. 


THE FEDERAL GOVERNMENT FILED SUIT UNDER SEC. 7 OF THE CLAYTON ACT
CHARGING THAT THE ACQUISITION BY A NATURAL GAS COMPANY, THEN THE SOLE
OUT-OF-STATE SUPPLIER TO CALIFORNIA, OF THE STOCK AND ASSETS OF ANOTHER
GAS COMPANY, ONE OF THE TWO MAJOR INTERSTATE PIPELINES SERVING THE
TRANS-ROCKY MOUNTAIN STATES, WHICH HAD MADE SOME EFFORTS TO ENTER THE
CALIFORNIA MARKET, "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION."  THE
DISTRICT COURT, WITHOUT A WRITTEN OPINION, DISMISSED THE COMPLAINT
AFTER TRIAL, ADOPTING VERBATIM THE FINDINGS OF FACT AND CONCLUSIONS OF
LAW SUBMITTED BY COUNSEL FOR APPELLEES.  HELD: 

1.  A TRIAL JUDGE'S FINDINGS WILL STAND IF SUPPORTED BY EVIDENCE EVEN
WHERE THEY ARE NOT HIS OWN WORK PRODUCT, UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173, BUT SUCH FINDINGS ARE LESS HELPFUL ON
JUDICIAL REVIEW THAN THOSE PREPARED BY THE TRIAL JUDGE HIMSELF.  PP.
656-657. 

2.  A REVIEW OF THE RECORD, COMPOSED MAINLY OF UNDISPUTED EVIDENCE,
CLEARLY SHOWS THAT THE "EFFECT OF SUCH ACQUISITION MAY BE SUBSTANTIALLY
TO LESSEN COMPETITION" IN CALIFORNIA UNDER SEC. 7 OF THE ACT.  PP. 657
662. 

(A)  THE PRODUCTION, TRANSPORTATION AND SALE OF NATURAL GAS IS A
"LINE OF COMMERCE" AND CALIFORNIA IS A "SECTION OF THE COUNTRY," AS
USED IN SEC. 7.  P. 657. 

(B)  THE WORDS "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION" IN SEC. 7
MANIFEST CONGRESS' CONCERN WITH PROBABILITIES AND NOT WITH EITHER
CERTAINTIES OR EPHEMERAL POSSIBILITIES.  P. 658. 

(C)  ALTHOUGH THE ACQUIRED COMPANY HAD NOT GAINED ENTRY INTO
CALIFORNIA FOR ITS GAS, ITS EFFECT AS A POTENTIAL SUPPLIER MADE IT A
SUBSTANTIAL COMPETITIVE FACTOR IN THAT CONTINUOUSLY EXPANDING MARKET. 
PP. 658-659. 

3.  SINCE APPELLEES HAVE BEEN ON NOTICE OF THE ANTITRUST CHARGE
ALMOST FROM THE INCEPTION OF THE MERGER PLANS, THE DISTRICT COURT IS
DIRECTED TO ORDER DIVESTITURE WITHOUT DELAY.  P. 662. 

UNITED STATES V. EL PASO NATURAL GAS CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
CLARK. 

THIS IS A CIVIL SUIT CHARGING A VIOLATION OF SEC. 7 OF THE CLAYTON
ACT, (FN1) BY REASON OF THE ACQUISITION OF THE STOCK AND ASSETS OF
PACIFIC NORTHWEST PIPELINE CORP. (PACIFIC NORTHWEST) BY EL PASO NATURAL
GAS CO. (EL PASO).  THE DISTRICT COURT DISMISSED THE COMPLAINT AFTER
TRIAL, MAKING FINDINGS OF FACT AND CONCLUSIONS OF LAW, BUT NOT WRITING
AN OPINION.  THE CASE IS HERE ON DIRECT APPEAL.  15 U.S.C. SEC. 29.  WE
NOTED PROBABLE JURISDICTION, 373 U.S. 930. 

THE ULTIMATE ISSUE REVOLVES AROUND THE QUESTION WHETHER THE
ACQUISITION SUBSTANTIALLY LESSENED COMPETITION IN THE SALE OF NATURAL
GAS IN CALIFORNIA - A MARKET OF WHICH EL PASO WAS THE SOLE OUT-OF-STATE
SUPPLIER AT THE TIME OF THE ACQUISITION.  (FN2) 

IN 1954, PACIFIC NORTHWEST RECEIVED THE APPROVAL OF THE FEDERAL POWER
COMMISSION TO CONSTRUCT AND OPERATE A PIPELINE FROM THE SAN JUAN BASIN,
NEW MEXICO, TO THE STATE OF WASHINGTON, TO SUPPLY GAS TO THE THEN
UNSERVED PACIFIC NORTHWEST AREA.  LATER IT WAS AUTHORIZED TO RECEIVE
LARGE QUANTITIES OF CANADIAN GAS AND TO ENLARGE ITS SYSTEM FOR THAT
PURPOSE.  IN ADDITION, PACIFIC NORTHWEST ACQUIRED ROCKY MOUNTAIN
RESERVOIRS ALONG ITS ROUTE.  AT THE END OF 1957 IT HAD AN ESTIMATED
3.51 TRILLION CUBIC FEET OF GAS RESERVES OWNED OUTRIGHT IN THE SAN JUAN
BASIN; 1.04 TRILLION UNDER CONTRACT IN THE SAN JUAN BASIN; 1.59
TRILLION UNDER CONTRACT IN THE ROCKY MOUNTAIN AREA; AND 2.33 TRILLION
UNDER CONTRACT IN CANADA - 8.47 TRILLION IN ALL.  BY 1958 ONE-HALF OF
ITS NATURAL GAS SALES WERE OF GAS FROM CANADA. 

IN 1954 PACIFIC NORTHWEST ENTERED INTO TWO GAS EXCHANGE CONTRACTS
WITH EL PASO - ONE TO DELIVER 250 MILLION CUBIC FEET PER DAY TO EL PASO
IN IDAHO FOR TRANSPORTATION TO CALIFORNIA VIA NEVADA, THE OTHER TO
GATHER GAS JOINTLY IN THE SAN JUAN BASIN FOR A FIVE-YEAR PERIOD.  UNDER
THE LATTER AGREEMENT EL PASO LOANED GAS TO PACIFIC NORTHWEST FROM ITS
WELLS IN THE SAN JUAN BASIN; TO AVOID DUPLICATION OF FACILITIES,
PACIFIC NORTHWEST AGREED TO GATHER GAS WITH ITS OWN FACILITIES FROM EL
PASO'S WELLS IN THE EASTERN PORTION OF THE BASIN, AND EL PASO AGREED TO
PERFORM THE SAME SERVICE FOR PACIFIC NORTHWEST IN THE WESTERN PORTION. 
AT THE SAME TIME PACIFIC NORTHWEST UNDERTOOK TO PURCHASE 300 MILLION
CUBIC FEET PER DAY FROM WESTCOAST TRANSMISSION CO., LTD., A CANADIAN
PIPELINE. 

AN EXECUTIVE OF PACIFIC NORTHWEST CALLED THESE AGREEMENTS A "TREATY"
TO "SOLVE THE MAJOR PROBLEMS WHICH HAVE BEEN CONFRONTING US."  A LETTER
FROM PACIFIC NORTHWEST TO ITS STOCKHOLDERS STATED: 

"THIS TRI-PARTY DEAL WILL BENEFIT ALL CONCERNED.  IT WILL GIVE
WESTCOAST WHAT THEY HAVE BEEN FIGHTING FOR - A PIPELINE.  IT WILL MEAN
THAT PACIFIC WILL EXPAND ITS FACILITIES, BE A LARGER COMPANY, WILL
PROTECT ITS MARKET FROM FUTURE COMPETITION BY A CANADIAN PIPELINE AND
IT CAUSED THE DISMISSAL OF THE LAW SUIT OF WESTCOAST AGAINST PACIFIC'S
PRESENT CERTIFICATE.  IT MEANS THAT EL PASO'S CALIFORNIA MARKET WILL BE
PROTECTED AGAINST FUTURE COMPETITION, AND FURTHER IT RESULTS IN ALL
PARTIES NOW WORKING TOGETHER FOR A COMMON END RATHER THAN FIGHTING EACH
OTHER." 

EL PASO, HOWEVER, COULD NOT GET COMMISSION APPROVAL TO BUILD THE
PIPELINE NECESSARY TO DELIVER THE 250 MILLION CUBIC FEET OF GAS TO
CALIFORNIA.  CONSEQUENTLY, A NEW AGREEMENT ON THAT ASPECT WAS
NEGOTIATED IN 1955, WHEREBY EL PASO UNDERTOOK TO PURCHASE 50 MILLION
CUBIC FEET A DAY TO BE DELIVERED ON AN EXCHANGE BASIS IN COLORADO. 
PACIFIC NORTHWEST, STILL OBLIGATED TO TAKE 300 MILLION CUBIC FEET PER
DAY FROM WESTCOAST, DISPOSED OF THE BALANCE IN ITS OWN MARKET AREAS. 

PRIOR TO THESE 1954 AND 1955 AGREEMENTS PACIFIC NORTHWEST HAD TRIED
TO ENTER THE RAPIDLY EXPANDING CALIFORNIA MARKET.  IT PREPARED PLANS
REGARDING THE TRANSPORTATION OF CANADIAN GAS TO CALIFORNIA, WHERE IT
WAS TO BE DISTRIBUTED BY PACIFIC GAS & ELECTRIC (PGE).  THAT EFFORT -
SUSPENDED WHEN THE 1954 AGREEMENTS WERE MADE - WAS RENEWED WHEN THE NEW
AGREEMENT WITH EL PASO WAS MADE IN 1955; AND THE NEGOTIATION OF THE
1955 CONTRACT WITH EL PASO WAS CONCEIVED BY PACIFIC NORTHWEST AS THE
OCCASION FOR "LIFTING OF ALL RESTRICTIONS ON THE GROWTH OF PACIFIC." 
IN 1956 IT INDEED ENGAGED IN NEGOTIATIONS FOR THE SALE OF NATURAL GAS
TO SOUTHERN CALIFORNIA EDISON CO. (EDISON).  THE LATTER, LARGEST
INDUSTRIAL USER OF NATURAL GAS IN SOUTHERN CALIFORNIA, USED EL PASO
GAS, PURCHASED THROUGH A DISTRIBUTOR.  IT HAD, HOWEVER, A LOW PRIORITY
FROM THAT DISTRIBUTOR, BEING ON AN "INTERRUPTIBLE" BASIS, I.E., SUBJECT
TO INTERRUPTION DURING PERIODS OF PEAK DEMAND FOR DOMESTIC USES. 
EDISON WANTED A FIRM CONTRACT AND, UPON BEING ADVISED THAT IT WAS EL
PASO'S POLICY TO SELL ONLY TO DISTRIBUTORS, STARTED NEGOTIATIONS WITH
PACIFIC NORTHWEST IN MAY 1956.  THE IDEA WAS FOR PACIFIC NORTHWEST TO
DELIVER TO EDISON AT A POINT ON THE CALIFORNIA-OREGON BORDER 300
MILLION CUBIC FEET OF CANADIAN GAS A DAY.  IN JULY 1956 THEY REACHED A
TENTATIVE AGREEMENT.  EDISON THEREUPON TRIED TO DEVELOP WITHIN
CALIFORNIA AN INTEGRATED SYSTEM FOR DISTRIBUTING CANADIAN GAS SUPPLIED
BY PACIFIC NORTHWEST TO ITSELF AND OTHERS.  EL PASO DECIDED TO FIGHT
THE PLAN TO THE LAST DITCH, AND SUCCEEDED IN GETTING (THROUGH A
DISTRIBUTOR) A CONTRACT FOR EDISON'S NEEDS.  EDISON'S TENTATIVE
AGREEMENT WITH PACIFIC NORTHWEST WAS TERMINATED.  BEFORE EDISON
TERMINATED THAT AGREEMENT WITH PACIFIC NORTHWEST, EDISON HAD REACHED AN
AGREEMENT WITH EL PASO FOR FIRM DELIVERIES OF GAS; AND WHILE THE
ORIGINAL EL PASO OFFER WAS 40 CENTS PER MCF, THE PRICE DROPPED TO 38
CENTS PER MCF, THEN TO 34 CENTS AND FINALLY TO 30 CENTS.  THEREAFTER,
AND WHILE THE MERGER NEGOTIATIONS WERE PENDING, PACIFIC NORTHWEST
RENEWED ITS EFFORTS TO GET ITS GAS INTO CALIFORNIA. 

EL PASO HAD BEEN INTERESTED IN ACQUIRING PACIFIC NORTHWEST SINCE
1954.  THE FIRST OFFER FROM EL PASO WAS IN DECEMBER 1955 - AN OFFER
PACIFIC NORTHWEST REJECTED.  NEGOTIATIONS WERE RESUMED BY EL PASO IN
THE SUMMER OF 1956, WHILE PACIFIC NORTHWEST WAS TRYING TO OBTAIN A
CALIFORNIA OUTLET.  THE EXCHANGE OF EL PASO SHARES FOR PACIFIC SHARES
WAS ACCEPTED BY PACIFIC NORTHWEST'S DIRECTORS IN NOVEMBER 1956, AND BY
MAY 1957 EL PASO HAD ACQUIRED 99.8% OF PACIFIC NORTHWEST'S OUTSTANDING
STOCK.  IN JULY 1957 THE DEPARTMENT OF JUSTICE FILED ITS SUIT CHARGING
THAT THE ACQUISITION VIOLATED SEC. 7 OF THE CLAYTON ACT.  IN AUGUST
1957 EL PASO APPLIED TO THE FEDERAL POWER COMMISSION FOR PERMISSION TO
ACQUIRE THE ASSETS OF PACIFIC NORTHWEST.  ON DECEMBER 23, 1959, THE
COMMISSION APPROVED AND THE MERGER WAS EFFECTED ON DECEMBER 31, 1959. 
IN 1962 WE SET ASIDE THE COMMISSION'S ORDER, HOLDING THAT IT SHOULD NOT
HAVE ACTED UNTIL THE DISTRICT COURT HAD PASSED ON THE CLAYTON ACT
ISSUES.  CALIFORNIA V. FEDERAL POWER COMM'N, 369 U.S. 482.  MEANWHILE
(IN OCTOBER 1960) THE UNITED STATES AMENDED ITS COMPLAINT SO AS TO
INCLUDE THE ASSET ACQUISITION IN THE CHARGED VIOLATION OF THE CLAYTON
ACT. 

THERE WAS A TRIAL, AND AFTER ORAL ARGUMENT THE JUDGE ANNOUNCED FROM
THE BENCH (FN3) THAT JUDGMENT WOULD BE FOR APPELLEES AND THAT HE WOULD
NOT WRITE AN OPINION.  HE TOLD COUNSEL FOR APPELLEES "PREPARE THE
FINDINGS AND CONCLUSIONS AND JUDGMENT."  THEY OBEYED, SUBMITTING 130
FINDINGS OF FACT AND ONE CONCLUSION OF LAW, ALL OF WHICH, WE ARE
ADVISED, THE DISTRICT COURT ADOPTED VERBATIM.  THOSE FINDINGS, THOUGH
NOT THE PRODUCT OF THE WORKINGS OF THE DISTRICT JUDGE'S MIND, ARE
FORMALLY HIS; THEY ARE NOT TO BE REJECTED OUT-OF-HAND, AND THEY WILL
STAND IF SUPPORTED BY EVIDENCE.  UNITED STATES V. CRESCENT AMUSEMENT
CO., 323 U.S. 173, 184-185.  THOSE DRAWN WITH THE INSIGHT OF A
DISINTERESTED MIND ARE, HOWEVER, MORE HELPFUL TO THE APPELLATE COURT. 
(FN4)  SEE 2B BARRON AND HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE
(WRIGHT ED. 1961), SEC. 1124.  MOREOVER, THESE DETAILED FINDINGS WERE
"MECHANICALLY ADOPTED," TO USE THE PHRASE OF THE LATE JUDGE FRANK IN
UNITED STATES V. FORNESS, 125 F.2D 928, 942, AND DO NOT REVEAL THE
DISCERNING LINE FOR DECISION OF THE BASIC ISSUE IN THE CASE.  ON REVIEW
OF THE RECORD - WHICH IS COMPOSED LARGELY OF UNDISPUTED EVIDENCE - WE
CONCLUDE THAT "THE EFFECT OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION" WITHIN THE MEANING OF SEC. 7 OF THE CLAYTON ACT. 

THERE CAN BE NO DOUBT THAT THE PRODUCTION, TRANSPORTATION, AND SALE
OF NATURAL GAS IS A "LINE OF COMMERCE" WITHIN THE MEANING OF SEC. 7. 
THERE CAN ALSO BE NO DOUBT THAT CALIFORNIA IS A "SECTION OF THE
COUNTRY" AS THAT PHRASE IS USED IN SEC. 7.  THE SOLE QUESTION,
THEREFORE, IS WHETHER ON UNDISPUTED FACTS THE ACQUISITION HAD A
SUFFICIENT TENDENCY TO LESSEN COMPETITION OR IS SAVED BY THE FINDINGS
THAT PACIFIC NORTHWEST, AS AN INDEPENDENT ENTITY, COULD NOT HAVE
OBTAINED A CONTRACT FROM THE CALIFORNIA DISTRIBUTORS, COULD NOT HAVE
RECEIVED THE GAS SUPPLIES OR FINANCING FOR A PIPELINE PROJECT TO
CALIFORNIA, OR COULD NOT HAVE PUT TOGETHER A PROJECT ACCEPTABLE TO THE
REGULATORY AGENCIES.  THOSE FINDINGS ARE IRRELEVANT. 

AS WE SAID IN BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294, 323:
"CONGRESS USED THE WORDS 'MAY BE SUBSTANTIALLY TO LESSEN COMPETITION',
TO INDICATE THAT ITS CONCERN WAS WITH PROBABILITIES, NOT CERTAINTIES. 
STATUTES EXISTED FOR DEALING WITH CLEAR-CUT MENACES TO COMPETITION; NO
STATUTE WAS SOUGHT FOR DEALING WITH EPHEMERAL POSSIBILITIES.  MERGERS
WITH A PROBABLE ANTICOMPETITIVE EFFECT WERE TO BE PROSCRIBED BY THIS
ACT."  SEE ALSO UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321, 362. 

PACIFIC NORTHWEST, THOUGH IT HAD NO PIPELINE INTO CALIFORNIA, IS
SHOWN BY THIS RECORD TO HAVE BEEN A SUBSTANTIAL FACTOR IN THE
CALIFORNIA MARKET AT THE TIME IT WAS ACQUIRED BY EL PASO.  AT THAT TIME
EL PASO WAS THE ONLY ACTUAL SUPPLIER OF OUT-OF-STATE GAS TO THE VAST
CALIFORNIA MARKET, A MARKET THAT EXPANDS AT AN ESTIMATED ANNUAL RATE OF
200 MILLION CUBIC FEET PER DAY.  (FN5)  AT THAT TIME PACIFIC NORTHWEST
WAS THE ONLY OTHER IMPORTANT INTERSTATE PIPELINE WEST OF THE ROCKY
MOUNTAINS.  THOUGH YOUNG, IT WAS PROSPERING AND APPEARED STRONG ENOUGH
TO WARRANT A "TREATY" WITH EL PASO THAT PROTECTED EL PASO'S CALIFORNIA
MARKETS. 

EDISON'S SEARCH FOR A FIRM SUPPLY OF NATURAL GAS IN CALIFORNIA, WHEN
IT HAD EL PASO GAS ONLY ON AN "INTERRUPTIBLE" BASIS, ILLUSTRATES WHAT
EFFECT PACIFIC NORTHWEST HAD MERELY AS A POTENTIAL COMPETITOR IN THE
CALIFORNIA MARKET.  EDISON TOOK ITS PROBLEM TO PACIFIC NORTHWEST AND,
AS WE HAVE SEEN, A TENTATIVE AGREEMENT WAS REACHED FOR EDISON TO OBTAIN
PACIFIC NORTHWEST GAS.  EL PASO RESPONDED, OFFERING EDISON A FIRM
SUPPLY OF GAS AND SUBSTANTIAL PRICE CONCESSIONS.  WE WOULD HAVE TO WEAR
BLINDERS NOT TO SEE THAT THE MERE EFFORTS OF PACIFIC NORTHWEST TO GET
INTO THE CALIFORNIA MARKET, THOUGH UNSUCCESSFUL, HAD A POWERFUL
INFLUENCE ON EL PASO'S BUSINESS ATTITUDES WITHIN THE STATE.  WE REPEAT
THAT ONE PURPOSE OF SEC. 7 WAS "TO ARREST THE TREND TOWARD
CONCENTRATION, THE TENDENCY TO MONOPOLY, BEFORE THE CONSUMER'S
ALTERNATIVES DISAPPEARED THROUGH MERGER  ...  ."  UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S., AT 367. 

THIS IS NOT A FIELD WHERE MERCHANTS ARE IN A CONTINUOUS DAILY
STRUGGLE TO HOLD OLD CUSTOMERS AND TO WIN NEW ONES OVER FROM THEIR
RIVALS.  IN THIS REGULATED INDUSTRY A NATURAL GAS COMPANY (UNLESS IT
HAS EXCESS CAPACITY) MUST COMPETE FOR, ENTER INTO, AND THEN OBTAIN
COMMISSION APPROVAL OF SALE CONTRACTS IN ADVANCE OF CONSTRUCTING THE
PIPELINE FACILITIES.  IN THE NATURAL GAS INDUSTRY PIPELINES ARE VERY
EXPENSIVE; AND TO BE JUSTIFIED THEY NEED LONG-TERM CONTRACTS FOR SALE
OF THE GAS THAT WILL TRAVEL THEM.  THOSE TRANSACTIONS WITH DISTRIBUTORS
ARE FEW IN NUMBER.  FOR EXAMPLE, IN CALIFORNIA THERE ARE ONLY TWO
SIGNIFICANT WHOLESALE PURCHASERS - PACIFIC GAS & ELECTRIC IN THE NORTH
AND THE SOUTHERN COMPANIES IN THE SOUTH.  ONCE THE COMMISSION GRANTS
AUTHORIZATION TO CONSTRUCT FACILITIES OR TO TRANSPORT GAS IN INTERSTATE
COMMERCE, ONCE THE DISTRIBUTING CONTRACTS ARE MADE, A PARTICULAR MARKET
IS WITHDRAWN FROM COMPETITION.  THE COMPETITION THEN IS FOR THE NEW
INCREMENTS OF DEMAND THAT MAY EMERGE WITH AN EXPANDING POPULATION AND
WITH AN EXPANDING INDUSTRIAL OR HOUSEHOLD USE OF GAS. 

THE EFFECT ON COMPETITION IN A PARTICULAR MARKET THROUGH ACQUISITION
OF ANOTHER COMPANY IS DETERMINED BY THE NATURE OR EXTENT OF THAT MARKET
AND BY THE NEARNESS OF THE ABSORBED COMPANY TO IT, THAT COMPANY'S
EAGERNESS TO ENTER THAT MARKET, ITS RESOURCEFULNESS, AND SO ON.
PACIFIC NORTHWEST'S POSITION AS A COMPETITIVE FACTOR IN CALIFORNIA WAS
NOT DISPROVED BY THE FACT THAT IT HAD NEVER SOLD GAS THERE.  NOR IS IT
CONCLUSIVE THAT PACIFIC NORTHWEST'S ATTEMPT TO SELL TO EDISON FAILED. 
THAT MIGHT BE WEIGHTY IF A MARKET PRESENTLY SATURATED SHOWED SIGNS OF
PETERING OUT.  BUT IT IS IRRELEVANT IN A MARKET LIKE CALIFORNIA, WHERE
INCREMENTAL NEEDS ARE BOOMING.  THAT IS UNDERSCORED IN THE CASE BY A
MEMORANDUM DATED OCTOBER 18, 1956, WHICH SUMMARIZED A MEETING AT WHICH
TERMS OF THE ACQUISITION WERE NEGOTIATED.  IT RECITED THAT PACIFIC
NORTHWEST HAD SUBSTANTIALLY CONCLUDED ADDITIONAL CONTRACTS FOR CANADIAN
GAS AND THAT "PACIFIC PLANS ON SELLING THIS ADDITIONAL VOLUME OF GAS TO
THE CALIFORNIA MARKET  ...  ."  ON NOVEMBER 5, 1956, JUST THREE DAYS
PRIOR TO APPROVAL BY THE DIRECTORS OF PACIFIC NORTHWEST OF THE STOCK
EXCHANGE, IT MADE A FIRM OFFER TO PGE TO SUPPLY UP TO 350 MILLION CUBIC
FEET A DAY FOR 20 YEARS.  EVEN AFTER THAT APPROVAL AND BEFORE THE
ACTUAL EXCHANGE, THE CHIEF EXECUTIVE OF PACIFIC NORTHWEST, WRITING
NOVEMBER 22, 1956, SAID:  "I DO NOT THINK FOR THE PRESENT MOMENT WE
SHOULD CONFUSE THE SALE OF GAS FROM OUR SYSTEM TO CALIFORNIA WITH EL
PASO TAKING PART OF THE GAS THROUGH THEIR PRESENT SYSTEM TO
CALIFORNIA.  REASON FOR THIS SHOULD THE EL PASO-PACIFIC DEAL COLLAPSE
WE WOULD HAVE NOTHING OF SUBSTANCE WITH CALIFORNIA."    PACIFIC
NORTHWEST HAD PROXIMITY TO THE CALIFORNIA MARKET - 550 MILES DISTANT IN
WYOMING, EVEN NEARER IN IDAHO, ONLY 250 MILES AWAY IN OREGON. 
MOREOVER, IT HAD ENORMOUS RESERVES IN THE SAN JUAN BASIN, THE ROCKY
MOUNTAINS, AND WESTERN CANADA.  HAD PACIFIC NORTHWEST REMAINED
INDEPENDENT, THERE CAN BE NO DOUBT IT WOULD HAVE SOUGHT TO EXPLOIT ITS
FORMIDABLE GEOGRAPHICAL POSITION VIS-A-VIS CALIFORNIA.  NO ONE KNOWS
WHAT SUCCESS IT WOULD HAVE HAD.  WE DO KNOW, HOWEVER, THAT TWO
INTERSTATE PIPELINES IN ADDITION TO EL PASO NOW SERVE CALIFORNIA - ONE
OF THE NEWCOMERS BEING PACIFIC GAS TRANSMISSION CO., BRINGING DOWN
CANADIAN GAS.  SO WE KNOW THAT OPPORTUNITIES WOULD HAVE EXISTED FOR
PACIFIC NORTHWEST HAD IT REMAINED INDEPENDENT. 

UNSUCCESSFUL BIDDERS ARE NO LESS COMPETITORS THAN THE SUCCESSFUL
ONE.  THE PRESENCE OF TWO OR MORE SUPPLIERS GIVES BUYERS A CHOICE. 
PACIFIC NORTHWEST WAS NO FEEBLE, FAILING COMPANY; (FN6) NOR WAS IT
INEXPERIENCED AND LACKING IN RESOURCEFULNESS.  IT WAS ONE OF TWO MAJOR
INTERSTATE PIPELINES SERVING THE TRANS-ROCKY MOUNTAIN STATES; IT HAD
RAISED $250 MILLION FOR ITS PIPELINE THAT EXTENDED 2,500 MILES THROUGH
RUGGED TERRAIN.  IT HAD ADEQUATE RESERVES AND MANAGERIAL SKILL.  IT WAS
SO STRONG AND MILITANT THAT IT WAS VIEWED WITH CONCERN, AND COVETED, BY
EL PASO.  IF EL PASO CAN ABSORB PACIFIC NORTHWEST WITHOUT VIOLATING
SEC. 7 OF THE CLAYTON ACT, THAT SECTION HAS NO MEANING IN THE NATURAL
GAS FIELD.  FOR NORMALLY THERE IS NO COMPETITION - ONCE THE LINES ARE
BUILT AND THE LONG-TERM CONTRACTS NEGOTIATED - EXCEPT AS RESPECTS THE
INCREMENTAL NEEDS. 

SINCE APPELLEES HAVE BEEN ON NOTICE OF THE ANTITRUST CHARGE FROM
ALMOST THE BEGINNING - INDEED BEFORE EL PASO SOUGHT COMMISSION APPROVAL
OF THE MERGER - WE NOT ONLY REVERSE THE JUDGMENT BELOW BUT DIRECT THE
DISTRICT COURT TO ORDER DIVESTITURE WITHOUT DELAY.  (FN7)  REVERSED. 

FN1 SECTION 7 OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED IN 1950 BY
THE CELLER-KEFAUVER ANTI-MERGER ACT, 64 STAT. 1125, 15 U.S.C. SEC. 18,
PROVIDES IN RELEVANT PART:  "NO CORPORATION ENGAGED IN COMMERCE SHALL
ACQUIRE, DIRECTLY OR INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR
OTHER SHARE CAPITAL AND NO CORPORATION SUBJECT TO THE JURISDICTION OF
THE FEDERAL TRADE COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE
ASSETS OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY
LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH
ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY." 

FN2  IN 1956, EL PASO SUPPLIED MORE THAN 50% OF ALL GAS CONSUMED IN
THE STATE, THE REMAINDER COMING FROM INTRASTATE SOURCES. 

FN3  "THE COURT.  JUDGMENT WILL BE FOR THE DEFENDANT IN THIS CASE. 
PREPARE THE FINDINGS AND CONCLUSIONS AND JUDGMENT. 

"HOW MUCH TIME DO YOU WANT WITHIN WHICH TO SUBMIT IT? 

"MR. HARRISON.  DOES THE COURT HAVE A RULE, YOUR HONOR? 

"THE COURT.  NO, I HAVE NO RULE ABOUT THAT. 

"MR. HARRISON.  COULD WE HAVE TWENTY DAYS, YOUR HONOR? 

"THE COURT.  TWENTY DAYS TO PREPARE THE FINDINGS AND CONCLUSIONS AND
JUDGMENT.  I SHAN'T WRITE AN OPINION IN THIS CASE. 

"MR. HARRISON.  I DIDN'T HEAR YOU. 

"THE COURT.  I DON'T INTEND TO WRITE AN OPINION IN THIS CASE.  I
THINK IT IS A FACTUAL MATTER.  I THINK WE HAVE TAKEN A FULL, FAIR LOOK
AT THE EVIDENCE AND THE FACTUAL ISSUES, AND I AM NOT SATISFIED THAT THE
GOVERNMENT HAS DISCHARGED ITS BURDEN." 

FN4  JUDGE J. SKELLY WRIGHT OF THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA RECENTLY SAID: 

"WHO SHALL PREPARE THE FINDINGS?  RULE 52 SAYS THE COURT SHALL
PREPARE THE FINDINGS.  'THE COURT SHALL FIND THE FACTS SPECIALLY AND
STATE SEPARATELY ITS CONCLUSIONS OF LAW.'  WE ALL KNOW WHAT HAS
HAPPENED.  MANY COURTS SIMPLY DECIDE THE CASE IN FAVOR OF THE PLAINTIFF
OR THE DEFENDANT, HAVE HIM PREPARE THE FINDINGS OF FACT AND CONCLUSIONS
OF LAW AND SIGN THEM.  THIS HAS BEEN DENOUNCED BY EVERY COURT OF
APPEALS SAVE ONE.  THIS IS AN ABANDONMENT OF THE DUTY AND THE TRUST
THAT HAS BEEN PLACED IN THE JUDGE BY THESE RULES.  IT IS A NON
COMPLIANCE WITH RULE 52 SPECIFICALLY AND IT BETRAYS THE PRIMARY PURPOSE
OF RULE 52 - THE PRIMARY PURPOSE BEING THAT THE PREPARATION OF THESE
FINDINGS BY THE JUDGE SHALL ASSIST IN THE ADJUDICATION OF THE LAWSUIT. 

"I SUGGEST TO YOU STRONGLY THAT YOU AVOID AS FAR AS YOU POSSIBLY CAN
SIMPLY SIGNING WHAT SOME LAWYER PUTS UNDER YOUR NOSE.  THESE LAWYERS,
AND PROPERLY SO, IN THEIR ZEAL AND ADVOCACY AND THEIR ENTHUSIASM ARE
GOING TO STATE THE CASE FOR THEIR SIDE IN THESE FINDINGS AS STRONGLY AS
THEY POSSIBLY CAN.  WHEN THESE FINDINGS GET TO THE COURTS OF APPEALS
THEY WON'T BE WORTH THE PAPER THEY ARE WRITTEN ON AS FAR AS ASSISTING
THE COURT OF APPEALS IN DETERMINING WHY THE JUDGE DECIDED THE CASE." 
SEMINARS FOR NEWLY APPOINTED UNITED STATES DISTRICT JUDGES (1963), P.
166. 

FN5  CALIFORNIA, IN A BRIEF AMICUS CURIAE, PP. 5-6, TELLS US: 

"THE DEPENDENCE OF CALIFORNIA UPON NATURAL GAS AS A FUEL IS UNIQUE
AMONG THE STATES.  CALIFORNIA DOES NOT POSSESS COAL DEPOSITS SUFFICIENT
FOR ENERGY REQUIREMENTS.  IT IS DEPENDENT UPON NATURAL GAS FOR ITS
ENERGY NEEDS AND APPROXIMATELY THREE QUARTERS OF THE NATURAL GAS
UTILIZED IN CALIFORNIA COMES FROM OUT-OF-STATE SOURCES.  NINETY PER
CENT OF ALL HOMES IN CALIFORNIA ARE HEATED BY NATURAL GAS AND
CALIFORNIA INDUSTRY DEPENDS UPON NATURAL GAS AS A FUEL.  IN CALIFORNIA
THE PERCENTAGE OF TOTAL ENERGY PROVIDED BY NATURAL GAS IS SUBSTANTIALLY
GREATER THAN FOR THE NATION AS A WHOLE. 

"DURING 1962, CALIFORNIA GAS DISTRIBUTING UTILITIES PURCHASED OVER
745,000,000,000 CUBIC FEET OF NATURAL GAS AT A COST SOMEWHAT IN EXCESS
OF $266,850,000.  CALIFORNIA TAKES IN EXCESS OF TEN PER CENT OF ALL OF
THE NATURAL GAS MOVING IN INTERSTATE COMMERCE THROUGHOUT THE UNITED
STATES AND EXCEEDS THE VOLUME OF GAS IMPORTED BY ANY OTHER STATE. 

"THE INTEREST OF CALIFORNIA IN THIS PROCEEDING IS EVIDENT.  MORE THAN
80 PER CENT OF THE CUSTOMERS OF EL PASO BEFORE MERGER RESIDED IN THE
STATE OF CALIFORNIA AND CALIFORNIA RATEPAYERS BEAR MOST OF THE COSTS OF
SERVICE OF EL PASO. 

"CALIFORNIA, ALONE, CONSUMES MORE NATURAL GAS THAN THE MIDDLE
ATLANTIC STATES COMBINED, MORE THAN HALF AS MUCH AS THE HIGHLY
INDUSTRIALIZED, THICKLY POPULATED EAST NORTH-CENTRAL STATES OF
ILLINOIS, INDIANA, MICHIGAN, OHIO AND WISCONSIN, AND AS MUCH AS THE
SEVEN STATES THAT MAKE UP THE WEST NORTH-CENTRAL AREAS.  OUT-OF-STATE
DELIVERIES TO CALIFORNIA AVERAGED THREE BILLION CUBIC FEET PER DAY IN
1961.  AT A PRICE OF SLIGHTLY MORE THAN THIRTY CENTS PER THOUSAND CUBIC
FEET (MCF), THIS BUSINESS WAS WORTH THEN ABOUT $1,000,000 PER DAY." 

FN6  CF. INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, 280 U.S.
291. 

FN7  CF. WISCONSIN V. ILLINOIS, 281 U.S. 179, 197. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

       I. 

CONTRARY TO WHAT I HAD FIRST THOUGHT, THE GOVERNMENT IS NOT ASKING IN
THIS CASE, AS IT DID IN UNITED STATES V. YELLOW CAB CO., 338 U.S. 338,
THAT WE "IN EFFECT  ...  TRY THE CASE DE NOVO," ID., AT 340.  RATHER IT
CONTENDS THAT ON THE UNDISPUTED FACTS OF RECORD THE ULTIMATE
DETERMINATION BELOW WAS CLEARLY ERRONEOUS.  SEE ID., AT 341-342.  FOR
REASONS GIVEN IN THE COURT'S OPINION, I AGREE THAT A VIOLATION OF SEC.
7 OF THE CLAYTON ACT HAS BEEN ESTABLISHED, AND THAT THE DISTRICT COURT
ERRED IN DECIDING OTHERWISE.  ON THIS SCORE I SHALL COMMENT ONLY ON TWO
MATTERS. 

FIRST.  THE COURT'S STRICTURES CONCERNING THE DISTRICT COURT'S
FINDINGS SEEM TO ME TO MISS THE MARK.  FINDINGS OF FACT SHOULD, OF
COURSE, BE THE PRODUCT OF THE CONSCIENTIOUS AND INDEPENDENT JUDGMENT OF
THE DISTRICT JUDGE.  NEVERTHELESS, IF THEY ARE SUPPORTED BY EVIDENCE,
THEY ARE NOT RENDERED SUSPECT SIMPLY BECAUSE THE TRIAL COURT, AS HERE,
HAS ACCEPTED IN TOTO THE FINDINGS PROPOSED BY ONE SIDE OR THE OTHER. 
THE REAL LACK IN THIS CASE IS THAT THE DISTRICT COURT WROTE NO OPINION
SETTING FORTH THE REASONING UNDERLYING ANY OF THE SUBSIDIARY FINDINGS
ON DISPUTED ISSUES OF FACT OR CONNECTING THE SUBSIDIARY FINDINGS WITH
ITS ULTIMATE DETERMINATION THAT THE CLAYTON ACT HAD NOT BEEN VIOLATED
BY THIS MERGER. 

BOTH AS A PRACTITIONER AND AS A JUDGE I HAVE MORE THAN ONCE FELT THAT
A CLOSELY CONTESTED GOVERNMENT ANTITRUST CASE, DECIDED BELOW IN FAVOR
OF THE DEFENDANT, HAS FOUNDERED IN THIS COURT FOR LACK OF AN
ILLUMINATING OPINION BY THE DISTRICT COURT.  DISTRICT COURTS SHOULD NOT
FORGET THAT SUCH CASES, THE TRIALS OF WHICH USUALLY RESULT IN LONG AND
COMPLEX FACTUAL RECORDS, COME HERE WITHOUT THE BENEFIT OF ANY SIFTING
BY THE COURTS OF APPEALS.  THE ABSENCE OF AN OPINION BY THE DISTRICT
COURT HAS BEEN A HANDICAP IN THIS INSTANCE. 

SECOND.  THIS CASE AFFORDS ANOTHER EXAMPLE OF THE UNSATISFACTORINESS
OF THE EXISTING BIFURCATED SYSTEM OF ANTITRUST AND OTHER REGULATION IN
VARIOUS FIELDS.  IN THIS CASE, THE FEDERAL POWER COMMISSION HAD
INDICATED ITS APPROVAL OF THIS MERGER AS BEING IN THE PUBLIC INTEREST. 
THE DEPARTMENT OF JUSTICE, HOWEVER, CONSIDERED THE MERGER TO BE
VIOLATIVE OF THE ANTITRUST LAWS AND, FOR THAT REASON ALONE, AGAINST THE
PUBLIC INTEREST.  THIS COURT, UNDER THE PRESENT SCHEME OF THINGS HAS NO
CHOICE ON THIS RECORD* BUT TO SUSTAIN THE POSITION OF THE DEPARTMENT OF
JUSTICE, AS INDEED IT HAS FELT CONSTRAINED TO DO, ALBEIT IN MY VIEW
WITH LESS JUSTIFICATION, IN OTHER RECENT CASES INVOLVING DUAL
REGULATION.  CF. UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S.
321; UNITED STATES V. FIRST NATIONAL BANK & TRUST CO., DECIDED TODAY,
POST, P. 665, AND MY DISSENTING OPINIONS IN THOSE CASES.  IT WOULD BE
UNREALISTIC NOT TO RECOGNIZE THAT THIS STATE OF AFFAIRS HAS THE EFFECT
OF PLACING THE DEPARTMENT OF JUSTICE IN THE DRIVER'S SEAT EVEN THOUGH
CONGRESS HAS LODGED PRIMARY REGULATORY AUTHORITY ELSEWHERE. 

*THIS COURT HAS NOT HAD THE BENEFIT OF AN AMICUS BRIEF FROM THE
FEDERAL POWER COMMISSION. 

IT DOES SEEM TO ME THAT THE TIME HAS COME WHEN THIS DUPLICATIVE AND,
I VENTURE TO SAY, ANACHRONISTIC SYSTEM OF DUAL REGULATION SHOULD BE RE
EXAMINED.  HAD THE SUBTLE AND NECESSARILY SPECULATIVE QUESTIONS
INVOLVED IN ASSESSING THE SHORT-TERM AND LONG-TERM EFFECTS OF THIS
MERGER BEEN SUBJECT TO APPRAISAL BY A SINGLE AGENCY, UNDER
CONGRESSIONALLY ESTABLISHED STANDARDS MARKING THE RELATIONSHIP BETWEEN
THE DIFFERENT AND OFTEN COMPETING OBJECTIVES OF THE ANTITRUST LAWS AND
THOSE GOVERNING THE REGULATION OF "INTERSTATE" NATURAL GAS, WHO CAN SAY
THAT THIS CASE MIGHT NOT HAVE CALLED FOR A DIFFERNT OUTCOME? 

               II. 

WHILE I AGREE WITH THE COURT'S DECISION ON THE MERITS, I DISSENT FROM
ITS PEREMPTORY ORDERING OF DIVESTITURE.  "THE FRAMING OF" APPROPRIATE
RELIEF "SHOULD TAKE PLACE IN THE DISTRICT RATHER THAN IN APPELLATE
COURTS."  INTERNATIONAL SALT CO., INC., V. UNITED STATES, 332 U.S. 392,
400.  UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 366 U.S. 316, IS
NOT TO THE CONTRARY; THAT CASE HAD ALREADY BEEN HERE BEFORE ON THE
MERITS (353 U.S. 586), AND WHEN IT CAME HERE AGAIN AT THE RELIEF STAGE
THE COURT OBSERVED THAT "THE DISTRICT COURTS HAVE THE RESPONSIBILITY
INITIALLY TO FASHION THE REMEDY ...  ."  366 U.S., AT 323.  I KNOW OF
NO CASE WHERE THIS COURT HAS IN THE FIRST INSTANCE ITSELF DIRECTED
DIVESTITURE OR ANY OTHER PARTICULAR KIND OF RELIEF.  THE FACT THAT
THESE APPELLEES HAVE BEEN "ON NOTICE," ANTE, P. 662, OF THE CHARGES
AGAINST THEM AFFORDS NO JUSTIFICATION FOR THIS DEPARTURE FROM NORMAL
PRACTICE.  SEE THE CASES CITED IN THE SECOND DU PONT CASE, 366 U.S., AT
322. 

I WOULD REMAND THE CASE TO THE DISTRICT COURT FOR THE FASHIONING OF
APPROPRIATE RELIEF. 
..END :




UNITED STATES V. FIRST NATIONAL BANK & TRUST CO. OF LEXINGTON 376 U.S.
665 


NO. 36.  ARGUED MARCH 4-5, 1964.  - DECIDED APRIL 6, 1964.  - 208 F.
SUPP. 457, REVERSED. 


IN THIS CIVIL ACTION THE UNITED STATES, THE APPELLANT, CHARGES THAT
THE CONSOLIDATION OF THE LARGEST AND FOURTH LARGEST OF THE SIX
COMMERCIAL BANKS IN FAYETTE COUNTY, KENTUCKY, VIOLATES SECS. 1 AND 2 OF
THE SHERMAN ACT.  THE COMPTROLLER OF THE CURRENCY HAD APPROVED THE
CONSOLIDATION ALTHOUGH REPORTS, REQUIRED BY THE BANK MERGER ACT OF
1960, FROM THE ATTORNEY GENERAL, THE FEDERAL DEPOSIT INSURANCE
CORPORATION, AND THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
ALL CONCLUDED THAT IT WOULD ADVERSELY AFFECT COMPETITION IN THE AREA. 
ALTHOUGH RECOGNIZING THAT APPROVAL BY THE COMPTROLLER OF THE CURRENCY
DID NOT IMMUNIZE THE CONSOLIDATION FROM THE OPERATION OF THE ACT, THE
DISTRICT COURT FOUND THAT NO VIOLATION WAS SHOWN.  HELD:  THE
CONSOLIDATION OF THE APPELLEE BANKS CONSTITUTES A VIOLATION OF SEC. 1
OF THE SHERMAN ACT.  PP. 666-673. 

(A)  COMMERCIAL BANKING IS ONE RELEVANT PRODUCT MARKET IN WHICH TO
JUDGE THE EFFECT OF THE CONSOLIDATION ON COMPETITION.  PP. 666-668. 

(B)  THE CONSOLIDATION SHOULD BE JUDGED BY ITS EFFECT ON COMPETITION
IN FAYETTE COUNTY, THE GEOGRAPHICAL MARKET.  P. 668. 

(C)  THE NEW BANK CONTROLS OVER HALF OF THE RELEVANT MARKET AND BY
ITS DISPARITY OF SIZE, AS ATTESTED BY THREE OF THE FOUR REMAINING
BANKS, WILL SERIOUSLY AFFECT THEIR LONG-RANGE ABILITY TO COMPETE,
DESPITE THE ABSENCE OF ANY "PREDATORY" PURPOSE.  P. 669. 

(D)  THE ELIMINATION OF SIGNIFICANT COMPETITION BETWEEN THE PARTIES
TO THE CONSOLIDATION, WHICH WERE MAJOR COMPETITIVE FACTORS IN THE
RELEVANT MARKET, OF ITSELF CONSTITUTES AN UNREASONABLE RESTRAINT OF
TRADE IN VIOLATION OF SEC. 1 OF THE ACT.  NORTHERN SECURITIES CO. V.
UNITED STATES, 193 U.S. 197, FOLLOWED; UNITED STATES V. COLUMBIA STEEL
CO., 334 U.S. 495, DISTINGUISHED.  PP. 669-673. 

UNITED STATES V. FIRST NATIONAL BANK & TRUST CO. OF LEXINGTON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF KENTUCKY. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BLACK. 

THIS IS A CIVIL SUIT IN WHICH THE UNITED STATES CHARGES THAT THE
CONSOLIDATION OF FIRST NATIONAL BANK AND TRUST CO. OF LEXINGTON,
KENTUCKY (FIRST NATIONAL), AND SECURITY TRUST CO. OF LEXINGTON
(SECURITY TRUST), TO FORM FIRST SECURITY NATIONAL BANK AND TRUST CO.
(FIRST SECURITY), CONSTITUTES A COMBINATION IN RESTRAINT OF TRADE AND
COMMERCE IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT AND A COMBINATION
AND AN ATTEMPT TO MONOPOLIZE TRADE AND COMMERCE IN VIOLATION OF SEC. 2
OF THAT ACT.  (FN1)  26 STAT. 209 AS AMENDED, 15 U.S.C. SECS. 1, 2. 

THE PLAN OF CONSOLIDATION WAS SUBMITTED TO THE COMPTROLLER OF THE
CURRENCY AND HE, PURSUANT TO THE PROVISION OF THE BANK MERGER ACT OF
1960, 74 STAT. 129, 12 U.S.C. (SUPP.  IV) SEC. 1828(C), REQUESTED AND
RECEIVED REPORTS OF THE PROBABLE COMPETITIVE EFFECTS OF THE PROPOSED
CONSOLIDATION FROM THE ATTORNEY GENERAL, THE FEDERAL DEPOSIT INSURANCE
CORP., AND THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM.  EACH
REPORT CONCLUDED THAT THE CONSOLIDATION WOULD ADVERSELY AFFECT
COMPETITION AMONG COMMERCIAL BANKS IN FAYETTE COUNTY.  NEVERTHELESS,
THE COMPTROLLER OF THE CURRENCY APPROVED THE CONSOLIDATION ON FEBRUARY
27, 1961; IT WAS EFFECTED MARCH 1, AND THIS SHERMAN ACT SUIT WAS FILED
THE SAME DAY.  THE DISTRICT COURT, WHILE AGREEING THAT THE COMPTROLLER
OF THE CURRENCY'S APPROVAL OF THE CONSOLIDATION DID NOT RENDER IT
IMMUNE FROM CHALLENGE UNDER THE SHERMAN ACT, (FN2) HELD THAT NO
VIOLATION OF THAT ACT HAD BEEN SHOWN.  208 F. SUPP 457.  THE CASE IS
HERE ON DIRECT APPEAL.  15 U.S.C. SEC. 29.  WE NOTED PROBABLE
JURISDICTION.  374 U.S. 824. 

WE AGREE WITH THE DISTRICT COURT THAT COMMERCIAL BANKING IS ONE
RELEVANT MARKET (FN3) FOR DETERMINING THE SEC. 1 ISSUE IN THE CASE.  IN
FAYETTE COUNTY COMMERCIAL BANKS ARE THE ONLY FINANCIAL INSTITUTIONS
AUTHORIZED TO RECEIVE DEMAND DEPOSITS AND TO OFFER CHECKING ACCOUNTS. 
THEY ARE ALSO THE ONLY FINANCIAL INSTITUTIONS IN THE COUNTY THAT ACCEPT
TIME DEPOSITS FROM PARTNERSHIPS AND CORPORATIONS AND THAT MAKE SINGLE
PAYMENT LOANS TO INDIVIDUALS (FN4) AND COMMERCIAL AND INDUSTRIAL LOANS
TO BUSINESSES.  MOREOVER, COMMERCIAL BANKS OFFER A WIDER VARIETY OF
FINANCIAL SERVICES THAN THE OTHER FINANCIAL INSTITUTIONS, E.G., DEPOSIT
BOXES, CHRISTMAS CLUBS, CORRESPONDENT BANK FACILITIES, COLLECTION
SERVICES, AND TRUST DEPARTMENT SERVICES. 

WE ALSO AGREE WITH THE DISTRICT COURT THAT THE CONSOLIDATION SHOULD
BE JUDGED IN LIGHT OF ITS EFFECT ON COMPETITION IN FAYETTE COUNTY. 
(FN5)  THE RECORD ESTABLISHES THAT HERE, AS IN UNITED STATES V.
PHILADELPHIA NATIONAL BANK, 374 U.S. 321, THE "FACTOR OF INCONVENIENCE"
DOES INDEED LOCALIZE BANKING COMPETITION "AS EFFECTIVELY AS HIGH
TRANSPORTATION COSTS IN OTHER INDUSTRIES."  374 U.S., AT 358. 
PRACTICALLY ALL OF THE BUSINESS OF THE BANKS IN LEXINGTON ORIGINATES IN
FAYETTE COUNTY.  ONLY 4.8% OF FIRST NATIONAL'S DEMAND DEPOSIT ACCOUNTS
AND 4.5% OF SECURITY TRUSTS WERE HELD BY DEPOSITORS WHO DID NOT
MAINTAIN OFFICES IN LEXINGTON.  IN DOLLAR VOLUME THE PERCENTAGE WAS 2.8
FOR EACH BANK.  APART FROM LARGE NATIONAL COMPANIES, BUSINESSES IN THE
AREA ARE RESTRICTED TO THE FAYETTE COUNTY BANKS FOR THEIR WORKING
CAPITAL LOANS; AND COMMERCIAL BANKS OUTSIDE LEXINGTON DO A NEGLIGIBLE
AMOUNT OF BUSINESS IN THE COUNTY.  THERE IS ALSO A NEGLIGIBLE AMOUNT OF
COMPETITION FROM CORPORATE FIDUCIARIES OUTSIDE FAYETTE COUNTY. 

WE TURN THEN TO THE FACTS RELEVANT TO THE ALLEGED RESTRAINT OF TRADE
UNDER THE SHERMAN ACT. 

PRIOR TO THE CONSOLIDATION THE RELATIVE SIZE OF FIRST NATIONAL AS
COMPARED TO ITS FIVE COMPETITORS WAS AS FOLLOWS:

                 ASSETS   DEPOSITS   LOANS 

FIRST NATIONAL     39.83%   40.06% 40.22% 

CITIZENS UNION     17.06    16.78      16.41 

BANK OF COMMERCE   12.99    13.32      14.46 

SECURITY TRUST   12.87    11.88      13.98 

CENTRAL BANK        9.14     9.66       8.85 

SECOND NATIONAL     8.10     8.30       6.09 

THE BANK ESTABLISHED BY THE CONSOLIDATION WAS LARGER THAN ALL THE
REMAINING BANKS COMBINED:

                 ASSETS  DEPOSITS   LOANS 

FIRST SECURITY     52.70%   51.95%     54.20% 

CITIZENS UNION     17.06    16.78      16.41 

BANK OF COMMERCE   12.99    13.32      14.46 

CENTRAL BANK  9.14     9.66       8.85 

SECOND NATIONAL     8.10     8.30       6.09 

PRIOR TO THE CONSOLIDATION, FIRST NATIONAL AND SECURITY TRUST HAD
BEEN CLOSE COMPETITORS IN THE TRUST DEPARTMENT BUSINESS.  BETWEEN THEM
THEY HELD 94.82% OF ALL TRUST ASSETS, 92.20% OF ALL TRUST DEPARTMENT
EARNINGS, AND 79.62% OF ALL TRUST ACCOUNTS:

                          TRUST      NUMBER

                 TRUST    DEPT.     OF TRUST

      ASSETS   EARNINGS   ACCOUNTS 

SECURITY TRUST     50.55%   46.91%     54.31% 

FIRST NATIONAL     44.27    45.29      25.31 

CITIZENS UNION      3.41     4.21      16.01 

SECOND NATIONAL     1.33      .63       2.12 

BANK OF COMMERCE     .44     2.96       2.26 

THERE WAS HERE NO "PREDATORY" PURPOSE.  BUT WE THINK IT CLEAR THAT
SIGNIFICANT COMPETITION WILL BE ELIMINATED BY THE CONSOLIDATION.  THERE
IS TESTIMONY IN THE RECORD FROM THREE OF THE FOUR REMAINING BANKS THAT
THE CONSOLIDATION WILL SERIOUSLY AFFECT THEIR ABILITY TO COMPETE
EFFECTIVELY OVER THE YEARS; THAT THE "IMAGE" OF "BIGNESS" IS A POWERFUL
ATTRACTION TO CUSTOMERS, AN ADVANTAGE THAT INCREASES PROGRESSIVELY WITH
DISPARITY IN SIZE; AND THAT THE MULTIPLICITY OF EXTRA SERVICES IN THE
TRUST FIELD WHICH THE NEW COMPANY COULD OFFER TENDS TO FORECLOSE
COMPETITION THERE. 

WE THINK IT CLEAR THAT THE ELIMINATION OF SIGNIFICANT COMPETITION
BETWEEN FIRST NATIONAL AND SECURITY TRUST CONSTITUTES AN UNREASONABLE
RESTRAINT OF TRADE IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  THE
CASE, WE THINK, IS GOVERNED BY NORTHERN SECURITIES CO. V. UNITED
STATES, 193 U.S. 197, AND ITS PROGENY.  THE NORTHERN PACIFIC AND THE
GREAT NORTHERN OPERATED PARALLEL LINES WEST OF CHICAGO.  A HOLDING
COMPANY ACQUIRED THE CONTROLLING STOCK IN EACH COMPANY.  A VIOLATION OF
SEC. 1 WAS ADJUDGED WITHOUT REFERENCE TO OR A DETERMINATION OF THE
EXTENT TO WHICH THE TRAFFIC OF THE COMBINED ROADS WAS STILL SUBJECT TO
SOME COMPETITION.  IT WAS ENOUGH THAT THE TWO ROADS COMPETED, THAT
THEIR COMPETITION WAS NOT INSUBSTANTIAL, AND THAT THE COMBINATION PUT
AN END TO IT.  ID., AT 326-328. 

UNITED STATES V. UNION PACIFIC R. CO., 226 U.S. 61, WAS IN THE SAME
TRADITION.  ACQUISITION BY UNION PACIFIC OF A CONTROLLING STOCK
INTEREST IN SOUTHERN PACIFIC WAS HELD TO VIOLATE SEC. 1 OF THE SHERMAN
ACT.  AS IN THE NORTHERN SECURITIES CASE THE COURT HELD THE COMBINATION
ILLEGAL BECAUSE OF THE ELIMINATION OF THE INTER SE COMPETITION BETWEEN
THE MERGING COMPANIES, WITHOUT REFERENCE TO THE STRENGTH OR WEAKNESS OF
WHATEVER COMPETITION REMAINED.  THE COURT SAID: 

"IT IS URGED THAT THIS COMPETITIVE TRAFFIC WAS INFINITESIMAL WHEN
COMPARED WITH THE GROSS AMOUNT OF THE BUSINESS TRANSACTED BY BOTH
ROADS, AND SO SMALL AS ONLY TO AMOUNT TO THAT INCIDENTAL RESTRAINT OF
TRADE WHICH OUGHT NOT TO BE HELD TO BE WITHIN THE LAW; BUT WE THINK THE
TESTIMONY AMPLY SHOWS THAT, WHILE THESE ROADS DID A GREAT DEAL OF
BUSINESS FOR WHICH THEY DID NOT COMPETE AND THAT THE COMPETITIVE
BUSINESS WAS A COMPARATIVELY SMALL PART OF THE SUM TOTAL OF ALL
TRAFFIC, STATE AND INTERSTATE, CARRIED OVER THEM, NEVERTHELESS SUCH
COMPETING TRAFFIC WAS LARGE IN VOLUME, AMOUNTING TO MANY MILLIONS OF
DOLLARS.  BEFORE THE TRANSFER OF THE STOCK THIS TRAFFIC WAS THE SUBJECT
OF ACTIVE COMPETITION BETWEEN THESE SYSTEMS, BUT BY REASON OF THE POWER
ARISING FROM SUCH TRANSFER IT HAS SINCE BEEN PLACED UNDER A COMMON
CONTROL.  IT WAS BY NO MEANS A NEGLIGIBLE PART, BUT A LARGE AND
VALUABLE PART, OF INTERSTATE COMMERCE WHICH WAS THUS DIRECTLY
AFFECTED."  ID., AT 88-89. 

UNITED STATES V. READING CO., 253 U.S. 26, IS THE THIRD OF THE
SERIES.  THERE A HOLDING COMPANY BROUGHT UNDER COMMON CONTROL TWO
COMPETING INTERSTATE CARRIERS AND TWO COMPETING COAL COMPANIES.  THAT
WAS HELD "WITHOUT MORE" TO BE A VIOLATION OF SECS. 1 AND 2 OF THE
SHERMAN ACT.  ID., AT 59. 

THE FOURTH OF THE SERIES IS UNITED STATES V. SOUTHERN PACIFIC CO.,
259 U.S. 214, IN WHICH THE ACQUISITION BY SOUTHERN PACIFIC OF STOCK OF
CENTRAL PACIFIC - A CONNECTING LINK FOR TRANSCONTINENTAL SHIPMENTS BY A
COMPETITOR OF SOUTHERN PACIFIC - WAS HELD TO VIOLATE THE SHERMAN ACT. 
IN REFERENCE TO THE EARLIER CASES (FN6) THE COURT SAID: 

"THESE CASES, COLLECTIVELY, ESTABLISH THAT ONE SYSTEM OF RAILROAD
TRANSPORTATION CANNOT ACQUIRE ANOTHER, NOR A SUBSTANTIAL AND VITAL PART
THEREOF, WHEN THE EFFECT OF SUCH ACQUISITION IS TO SUPPRESS OR
MATERIALLY REDUCE THE FREE AND NORMAL FLOW OF COMPETITION IN THE
CHANNELS OF INTERSTATE TRADE."  ID., AT 230-231. 

WE NEED NOT GO SO FAR HERE AS WE WENT IN UNITED STATES V. YELLOW CAB
CO., 332 U.S. 218, 225, WHERE WE SAID: 

"  ...  THE AMOUNT OF INTERSTATE TRADE THUS AFFECTED BY THE
CONSPIRACY IS IMMATERIAL IN DETERMINING WHETHER A VIOLATION OF THE
SHERMAN ACT HAS BEEN CHARGED IN THE COMPLAINT.  SECTION 1 OF THE ACT
OUTLAWS UNREASONABLE RESTRAINTS ON INTERSTATE COMMERCE, REGARDLESS OF
THE AMOUNT OF THE COMMERCE AFFECTED." 

THE FOUR RAILROAD CASES AT LEAST STAND FOR THE PROPOSITION THAT WHERE
MERGING COMPANIES ARE MAJOR COMPETITIVE FACTORS IN A RELEVANT MARKET,
THE ELIMINATION OF SIGNIFICANT COMPETITION BETWEEN THEM, BY MERGER OR
CONSOLIDATION, ITSELF CONSTITUTES A VIOLATION OF SEC. 1 OF THE SHERMAN
ACT.  THAT STANDARD WAS MET IN THE PRESENT CASE IN VIEW OF THE FACT
THAT THE TWO BANKS IN QUESTION HAD SUCH A LARGE SHARE OF THE RELEVANT
MARKET. 

IT IS SAID THAT UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, IS
COUNTER TO THIS VIEW.  THERE THE UNITED STATES STEEL CORP. ACQUIRED THE
ASSETS OF CONSOLIDATED STEEL CORP. BOTH MADE FABRICATED STRUCTURAL
STEEL PRODUCTS, THE FORMER SELLING ON A NATION-WIDE BASIS, THE LATTER
IN 11 STATES.  THE CONCLUSION THAT THE ACQUISITION WAS LAWFUL WAS
REACHED AFTER THE COURT OBSERVED, INTER ALIA, THAT BECAUSE OF RATE
STRUCTURES AND THE LOCATION OF UNITED STATES STEEL'S FABRICATING
SUBSIDIARIES, THE LATTER WERE UNABLE TO COMPETE EFFECTIVELY IN
CONSOLIDATED'S MARKET.  ID., AT 511-518, 529-530.  THE COLUMBIA STEEL
CASE MUST BE CONFINED TO ITS SPECIAL FACTS.  THE COURT SAID: 

"IN DETERMINING WHAT CONSTITUTES UNREASONABLE RESTRAINT, WE DO NOT
THINK THE DOLLAR VOLUME IS IN ITSELF OF COMPELLING SIGNIFICANCE; WE
LOOK RATHER TO THE PERCENTAGE OF BUSINESS CONTROLLED, THE STRENGTH OF
THE REMAINING COMPETITION, WHETHER THE ACTION SPRINGS FROM BUSINESS
REQUIREMENTS OR PURPOSE TO MONOPOLIZE, THE PROBABLE DEVELOPMENT OF THE
INDUSTRY, CONSUMER DEMANDS, AND OTHER CHARACTERISTICS OF THE MARKET. 
WE DO NOT UNDERTAKE TO PRESCRIBE ANY SET OF PERCENTAGE FIGURES BY WHICH
TO MEASURE THE REASONABLENESS OF A CORPORATION'S ENLARGEMENT OF ITS
ACTIVITIES BY THE PURCHASE OF THE ASSETS OF A COMPETITOR.  THE RELATIVE
EFFECT OF PERCENTAGE COMMAND OF A MARKET VARIES WITH THE SETTING IN
WHICH THAT FACTOR IS PLACED."  ID., AT 527-528. 

IN THE PRESENT CASE ALL THOSE FACTORS CLEARLY POINT THE OTHER WAY, AS
WE HAVE SEEN.  WHERE, AS HERE, THE MERGING COMPANIES ARE MAJOR
COMPETITIVE FACTORS IN A RELEVANT MARKET, THE ELIMINATION OF
SIGNIFICANT COMPETITION BETWEEN THEM CONSTITUTES A VIOLATION OF SEC. 1
OF THE SHERMAN ACT.  IN VIEW OF OUR CONCLUSION UNDER SEC. 1 OF THE
SHERMAN ACT, WE DO NOT REACH THE QUESTIONS POSED UNDER SEC. 2. 
REVERSED. 

FN1  SECTIONS 1 AND 2 OF THE SHERMAN ACT PROVIDE IN PERTINENT PART: 

"SEC. 1.  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 HEREBY DECLARED TO BE
ILLEGAL  ...  . 

"SEC. 2.  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  ...
." 

FN2  THAT ISSUE WAS PUT TO REST BY UNITED STATES V. PHILADELPHIA
NATIONAL BANK, 374 U.S. 321, 350-355. 

FN3  IN VIEW OF OUR DISPOSITION OF THE CASE WE FIND IT UNNECESSARY TO
DETERMINE WHETHER TRUST DEPARTMENT SERVICES ALONE ARE ANOTHER RELEVANT
MARKET. 

FN4  SMALL LOAN COMPANIES MAKE PERSONAL LOANS OF $800 OR LESS AT
INTEREST RATES HIGHER THAN THOSE CHARGED BY COMMERCIAL BANKS.  SINCE
COMMERCIAL BANKS CARRY A LARGE VOLUME OF DEMAND DEPOSITS, THEIR REAL
ESTATE LOANS ARE GENERALLY OF A SHORTER DURATION THAN THOSE OFFERED BY
SAVINGS AND LOAN ASSOCIATIONS OR INSURANCE COMPANIES. 

FN5  THE FEDERAL DEPOSIT INSURANCE CORP. AND THE FEDERAL RESERVE
BOARD USED FAYETTE COUNTY AS THE GEOGRAPHICAL MARKET, THE LATTER SAYING
THAT "SINCE THERE ARE NO CONCENTRATIONS OF POPULATION IN OTHER COUNTIES
CLOSE ENOUGH TO CREATE COMPETITION WITH OTHER BANKS, THE COMPETITIVE
EFFECTS OF THE PROPOSED CONSOLIDATION WOULD BE CONFINED TO THE
LEXINGTON BANKS."    FN6  TWO OF WHICH HAD BEEN DECIDED AFTER STANDARD
OIL CO. V. UNITED STATES, 221 U.S. 1, WHICH ANNOUNCED "THE RULE OF
REASON." 

MR. JUSTICE BRENNAN AND MR. JUSTICE WHITE AGREE WITH THE COURT THAT
THE ELIMINATION OF COMPETITION BETWEEN THE TWO BANKS IN THE
CIRCUMSTANCES HERE PRESENTED WAS A VIOLATION OF SEC. 1 OF THE SHERMAN
ACT.  THEY WOULD REST THE REVERSAL, HOWEVER, SOLELY ON THE CONCLUSION
THAT THE FACTORS RELIED ON IN UNITED STATES V. COLUMBIA STEEL CO., 334
U.S. 495, 527-528, QUOTED BY THE COURT, AS APPLIED TO THE FACTS OF THIS
CASE, CLEARLY COMPEL THE REVERSAL.    MR. JUSTICE HARLAN, WHOM MR.
JUSTICE STEWART JOINS, DISSENTING. 

BUT FOR THE COURT'S RETURN TO A DISCARDED THEORY OF ANTITRUST LAW,
THIS CASE WOULD HAVE LITTLE FUTURE IMPORTANCE.  THE DECISION LAST TERM
IN UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, THAT SEC.
7 OF THE CLAYTON ACT, 15 U.S.C. SEC. 18, IS APPLICABLE TO BANK MERGERS
SURELY MARKS THE END OF CASES LIKE THIS ONE, IN WHICH THE GOVERNMENT
RELIES SOLELY ON SECS. 1 AND 2 OF THE SHERMAN ACT, 15 U.S.C. SECS. 1,
2.  SINCE, HOWEVER, THIS CASE, DOOMED TO BE A NOVELTY IN THE REPORTS,
HAS BECOME THE VEHICLE FOR TURNING THE CLOCK BACK TO ANTITRUST LAW OF
DAYS LONG PAST, I AM CONSTRAINED TO DO MORE THAN MERELY REGISTER MY
DISSENT. 

I. 

STRIPPED OF EMBELLISHMENTS, THE COURT'S OPINION AMOUNTS TO AN
INVOCATION OF FORMULAS OF ANTITRUST NUMEROLOGY AND A PRESUMPTION THAT
IN THE ANTITRUST FIELD GOOD THINGS COME USUALLY, IF NOT ALWAYS, IN
SMALL PACKAGES.  (FN1)  THE "FACTS RELEVANT TO THE ALLEGED RESTRAINT OF
TRADE UNDER THE SHERMAN ACT," ANTE, P. 668, ON WHICH THE COURT RELIES,
ARE: (1) THE SIZE RELATIVE TO THEIR COMPETITORS OF FIRST NATIONAL AND
SECURITY TRUST BEFORE THE CONSOLIDATION AND OF FIRST SECURITY AFTER THE
CONSOLIDATION; (2) THE COMPETITIVE POSITION BEFORE THE CONSOLIDATION OF
FIRST NATIONAL AND SECURITY TRUST IN THE MORE LIMITED AREA OF TRUST
BUSINESS; (FN2) AND (3) "TESTIMONY IN THE RECORD FROM THREE OF THE FOUR
REMAINING BANKS THAT THE CONSOLIDATION WILL SERIOUSLY AFFECT THEIR
ABILITY TO COMPETE EFFECTIVELY OVER THE YEARS  ...  ," ANTE, P. 669. 

THE TESTIMONY TO WHICH THE COURT ADVERTS WAS PROVIDED BY COMPETITORS
OF FIRST SECURITY AND WAS CHARACTERIZED BY THE DISTRICT JUDGE WHO HEARD
IT AS SEEMINGLY "BASED MERELY UPON SURMISE AND  ... LACKING IN FACTUAL
SUPPORT."  208 F. SUPP. 457, 460.  SINCE THE COURT SUGGESTS NO REASON
FOR REGARDING THIS EVIDENTIARY FINDING OF THE TRIAL COURT AS "CLEARLY
ERRONEOUS," IT MUST BE ACCEPTED HERE, E.G., UNITED STATES V. YELLOW CAB
CO., 338 U.S. 338, 341-342, LEAVING AS THE FACTUAL BASIS FOR THE
COURT'S DECISION ONLY THE STATISTICS UNQUESTIONABLY SHOWING THAT FIRST
NATIONAL AND SECURITY TRUST WERE BIG AND FIRST SECURITY IS BIGGER.  THE
EMBELLISHMENT WHICH ADORNS THESE STATISTICS IS THE PROPOSITION THAT
"WHERE MERGING COMPANIES ARE MAJOR COMPETITIVE FACTORS IN A RELEVANT
MARKET, THE ELIMINATION OF SIGNIFICANT COMPETITION BETWEEN THEM, BY
MERGER OR CONSOLIDATION, ITSELF CONSTITUTES A VIOLATION OF SEC. 1 OF
THE SHERMAN ACT," ANTE, PP. 671-672. 

THE SOLE SUPPORT FOR THIS PROPOSITION, WHICH IS DEFENDED BY NO
INDEPENDENT REASONING WHATEVER, IS THE FOUR "RAILROAD CASES," A
REITERATION OF WHICH FORMS THE BULK OF THE COURT'S OPINION.  (FN3)  IT
IS QUESTIONABLE WHETHER THOSE CASES, THREE OF WHICH INVOLVED THE
COMBINATION OF MASSIVE TRANSPORTATION SYSTEMS (FN4) AND THE FOURTH A
COMBINATION OF "TWO GREAT COMPETING INTERSTATE CARRIERS AND  ...  TWO
GREAT COMPETING COAL COMPANIES EXTENSIVELY ENGAGED IN INTERSTATE
COMMERCE" (FN5) HAVE ANY RELEVANCE TO THE PRESENT FACTUAL SITUATION. 
THAT QUESTION, HOWEVER, NEED NOT BE EXPLORED. 

IN UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, THESE SAME
CASES WERE CITED BY THE GOVERNMENT FOR THE SAME PROPOSITION URGED HERE:
THAT "CONTROL BY ONE COMPETITOR OVER ANOTHER VIOLATES THE SHERMAN ACT
...  ," ID., AT 531.  THE COURT RELEGATED THE CASES TO A FOOTNOTE AND
STATED THAT IT WOULD NOT "EXAMINE THOSE CASES TO DETERMINE WHETHER WE
WOULD NOW APPROVE EITHER THEIR LANGUAGE OR THEIR HOLDINGS."  IBID.  THE
FACTS OF THE "RAILROAD CASES" WERE FOUND TO BE "SO DISSIMILAR FROM THAT
PRESENTED" THAT THEY COULD "FURNISH LITTLE GUIDANCE" IN DECIDING THE
LATER CASE.  IBID.  BEYOND THIS EXPLICIT REJECTION OF THESE CASES AS A
BASIS FOR DECISION IS THEIR FURTHER REJECTION CLEARLY IMPLICIT IN THE
PORTION OF THE COLUMBIA STEEL OPINION WHICH THE COURT QUOTES, ANTE, P.
672. 

"IN DETERMINING WHAT CONSTITUTES UNREASONABLE RESTRAINT, WE DO NOT
THINK THE DOLLAR VOLUME IS IN ITSELF OF COMPELLING SIGNIFICANCE; WE
LOOK RATHER TO THE PERCENTAGE OF BUSINESS CONTROLLED, THE STRENGTH OF
THE REMAINING COMPETITION, WHETHER THE ACTION SPRINGS FROM BUSINESS
REQUIREMENTS OR PURPOSE TO MONOPOLIZE, THE PROBABLE DEVELOPMENT OF THE
INDUSTRY, CONSUMER DEMANDS, AND OTHER CHARACTERISTICS OF THE MARKET." 
334 U.S., AT 527. 

QUITE OBVIOUSLY, IF "BIGNESS" ALONE PROVIDED A SUFFICIENT ANSWER TO
THE QUESTIONS INVOLVED IN A SEC. 1 CHARGE, IT WOULD BE POINTLESS TO
ATTEND TO THE FACTORS SET OUT IN COLUMBIA STEEL AND REITERATED HERE, IN
FORM APPROVINGLY BUT IN FACT WITHOUT REGARD. 

                                II. 

IF REGARD BE HAD TO THE CRITERIA ENUMERATED IN COLUMBIA STEEL, NONE
OF THEM EXCEPT PERHAPS THOSE WHICH DEAL WITH "BIGNESS" FAVOR THE
GOVERNMENT HERE.  ALTHOUGH FOR PURPOSES OF THE SHERMAN ACT, SUCH
STATISTICS HAVE LITTLE MEANING IN THE ABSENCE OF A CONTEXT, (FN6) IT
MAY BE ADMITTED THAT THE FIGURES IN THIS CASE OF DOLLAR VOLUME (FN7)
AND THE PERCENTAGE OF BUSINESS CONTROLLED ARE LARGE.  SO FAR AS THESE
FIGURES HAVE RELEVANCE UNDER THE COLUMBIA STEEL TEST, THEY PERHAPS
SPEAK AGAINST THE APPELLEE. 

ON THE OTHER HAND, THE STRENGTH OF THE REMAINING COMPETITION IS
ATTESTED BY FINDINGS OF FACT IN THE DISTRICT COURT, NOT REFUTED OR EVEN
MENTIONED IN THE COURT'S OPINION: 

"AS OF DECEMBER 31, 1960, THERE WERE IN OPERATION IN LEXINGTON,
BESIDE THE FIRST NATIONAL BANK AND TRUST COMPANY AND SECURITY TRUST
COMPANY, FOUR OTHER COMMERCIAL BANKS, NAMELY: 

"CITIZENS UNION NATIONAL BANK AND TRUST COMPANY, WITH TOTAL ASSETS OF
$27,876,000, TOTAL DEPOSITS OF $24,569,000 AND TOTAL NET LOANS AND
DISCOUNTS OF $14,457,000: 

"BANK OF COMMERCE, WITH TOTAL ASSETS OF $21,230,000, TOTAL DEPOSITS
OF $19,500,000 AND TOTAL NET LOANS AND DISCOUNTS OF $12,738,000: 

"CENTRAL BANK AND TRUST COMPANY, WITH TOTAL ASSETS OF $14,930,000,
WITH TOTAL DEPOSITS OF $14,144,000, AND WITH TOTAL NET LOANS AND
DISCOUNTS OF $7,799,000: 

"SECOND NATIONAL BANK AND TRUST COMPANY, WITH TOTAL ASSETS OF
$13,240,000, TOTAL DEPOSITS OF $12,157,000 AND TOTAL NET LOANS AND
DISCOUNTS OF $5,362,000. 

     *         *         * *         * 

"BEFORE AND SINCE THE CONSOLIDATION HEREIN REFERRED TO, ALL THE BANKS
IN FAYETTE COUNTY HAVE BEEN OPERATED SUCCESSFULLY IN THE FIELD OF
COMMERCIAL BANKING AND IN COMPETITION WITH EACH OTHER. 

     *         *         *         *       * 

"IN THE TRIAL OF THE CASE, OTHER THAN THE OFFICIALS AND EMPLOYEES OF
THE DEFENDANT, FIRST SECURITY NATIONAL BANK AND TRUST COMPANY, NUMEROUS
WITNESSES, MOST OF WHOM WERE MEN OF LONG EXPERIENCE IN THE FIELD OF
BANKING, TESTIFIED TO THE EFFECT THAT, IN THEIR OPINION, THE
CONSOLIDATION OF THE TWO LEXINGTON BANKS HEREIN REFERRED TO WOULD NOT
LESSEN COMPETITION IN THE BANKING FIELD IN FAYETTE COUNTY AND DID NOT
TEND TO CREATE A MONOPOLY IN THAT FIELD. 

"ACCORDING TO THEIR TESTIMONY, THE FACT THAT THE MERGED BANK HAD A
LARGE PERCENTAGE OF THE TRUST BUSINESS OF THE COMMUNITY DID NOT AND
WOULD NOT SUBSTANTIALLY RESTRAIN OR LESSEN COMPETITION IN THE FIELD OF
COMMERCIAL BANKING."  208 F. SUPP., AT 459-460.  (FN8) 

THE MOTIVE BEHIND THE CONSOLIDATION ALSO IS INDICATED BY THE FINDINGS
BELOW, SIMILARLY UNCHALLENGED, THAT "  ...  THE CONSOLIDATION HEREIN
REFERRED TO CLEARLY APPEARS TO HAVE BEEN THE RESULT OF A LAWFUL PROGRAM
OF EXPANSION ON THE PART OF THE MERGING BANKS RATHER THAN AN INVIDIOUS
SCHEME TO RESTRAIN COMPETITION OR TO SECURE MONOPOLY IN THE LOCAL FIELD
OF BANKING."  208 F. SUPP., AT 460.  ANY DOUBTS ON THIS SCORE ARE
REMOVED BY THE EXPLICIT CONCESSION OF GOVERNMENT COUNSEL AT ORAL
ARGUMENT BEFORE THIS COURT THAT THERE IS NO EVIDENCE AT ALL IN THE
RECORD OF AN ANTICOMPETITIVE MOTIVE BEHIND THE CONSOLIDATION. 

THERE IS NOTHING WHATEVER IN THE FINDINGS BELOW OR IN THE OPINION OF
THIS COURT PERTINENT TO THE OTHER CRITERIA LAID DOWN IN COLUMBIA STEEL
THE PROBABLE DEVELOPMENT OF THE INDUSTRY, CONSUMER DEMANDS, AND OTHER
MARKET CHARACTERISTICS - WHICH SUPPORTS THE COURT'S CONCLUSION.  (FN9)
IN SUM, THE COURT'S ANALYSIS OF THE FACTS OF THIS CASE ENDS WHERE IT
BEGINS; THE CONCLUSION THAT THE CONSOLIDATION VIOLATES THE SHERMAN ACT
COLLAPSES INTO THE AGREED PREMISE THAT FIRST SECURITY IS "BIG." 

                                III. 

THE TRUTH IS, OF COURSE, THAT THIS IS, IF ANYTHING, A CLAYTON ACT
CASE MASQUERADING IN THE GARB OF THE SHERMAN ACT.  ONE CAN HARDLY DOUBT
THAT IT COMES TO US UNDER THESE FALSE COLORS ONLY BECAUSE THE DECISION
LAST TERM THAT BANK MERGERS COULD BE REACHED UNDER THE CLAYTON ACT WAS
INDEED A SURPRISE TO THE GOVERNMENT.  SEE MY DISSENTING OPINION IN
PHILADELPHIA NATIONAL BANK, SUPRA, AT 373.  NO ONE HAS MORE SYMPATHY
FOR THE GOVERNMENT IN THIS RESPECT THAN I. NEVERTHELESS, HAVING "AT THE
OUTSET ELECTED TO PROCEED NOT UNDER THE CLAYTON BUT THE SHERMAN ACT,"
TIMES-PICAYUNE PUB. CO. V. UNITED STATES, 345 U.S. 594, 609, "THE
GOVERNMENT HERE MUST MEASURE UP TO THE CRITERIA OF THE MORE STRINGENT
LAW," ID., AT 610. 

THE PERNICIOUS EFFECT OF ALLOWING THE GOVERNMENT TO CHANGE HORSES IN
MIDSTREAM IN FACT IF NOT QUITE IN FORM (FN10) GOES BEYOND THIS CASE
AND, IN THE FIELD OF BANKING, BEYOND EVEN THE REVITALIZATION OF A
PROPERLY MORIBUND RULE OF ANTITRUST LAW.  IN COMBINATION WITH THE
PHILADELPHIA NATIONAL BANK CASE, TODAY'S DECISION EFFECTIVELY PRECLUDES
ANY POSSIBILITY THAT THE WILL OF THE CONGRESS WITH RESPECT TO BANK
MERGERS WILL BE CARRIED OUT.  THE CONGRESS HAS PLAINLY INDICATED THAT
IT DOES NOT INTEND THAT MERGERS IN THE BANKING FIELD BE MEASURED SOLELY
BY THE ANTITRUST CONSIDERATIONS WHICH ARE APPLIED IN OTHER INDUSTRIES. 
CHARACTERISTIC OF SUCH INDICATIONS, SET OUT IN DETAIL IN MY DISSENTING
OPINION IN THE PHILADELPHIA NATIONAL BANK CASE, SUPRA, AT 374-386, IS
THE FOLLOWING EXCERPT FROM THE SENATE REPORT ON THE BILL WHICH BECAME
THE BANK MERGER ACT OF 1960, 12 U.S.C. (SUPP. IV, 1963) SEC. 1828(C): 

"THE COMMITTEE WANTS TO MAKE CRYSTAL CLEAR ITS INTENTION THAT THE
VARIOUS BANKING FACTORS IN ANY PARTICULAR CASE MAY BE HELD TO OUTWEIGH
THE COMPETITIVE FACTORS, AND THAT THE COMPETITIVE FACTORS, HOWEVER
FAVORABLE OR UNFAVORABLE, ARE NOT, IN AND OF THEMSELVES, CONTROLLING ON
THE DECISION."  S. REP. NO. 196, 86TH CONG., 1ST SESS., 24. 

ADHERENCE TO THE PRINCIPLES ENUNCIATED IN COLUMBIA STEEL, SUPRA,
WOULD LEAVE ROOM FOR AN ACCOMMODATION WITHIN THE FRAMEWORK OF THE
ANTITRUST LAWS OF THE SPECIAL FEATURES OF BANKING RECOGNIZED BY
CONGRESS.  IT IS DIFFICULT TO SEE HOW FEATURES PECULIAR TO BANKING OR
INDEED ANY OTHER FEATURES OF A PARTICULAR CASE WHICH, IN REASON, SHOULD
LEAD TO A DIFFERENT RESULT, CAN STAND UP AGAINST THE BLUDGEON WITH
WHICH THE COURT NOW STRIKES AT COMBINATIONS WHICH MAY WELL HAVE NO
FAULT EXCEPT "BIGNESS." 

I WOULD AFFIRM. 

FN1  COMPARE THE DISSENTING OPINION IN UNITED STATES V. COLUMBIA
STEEL CO., 334 U.S. 495, 534. 

FN2  THE REASON FOR SINGLING OUT THIS ASPECT OF THE BANKS' ACTIVITIES
IS UNCLEAR, SINCE THE COURT DOES NOT DETERMINE EVEN WHETHER TRUST
DEPARTMENT SERVICES SHOULD BE REGARDED AS A RELEVANT MARKET.  SEE ANTE,
P. 667, NOTE 3.  IN VIEW OF THE MAJORITY'S DISPOSITION OF THE CASE, I
DO NOT SET OUT HERE MY REASONS FOR BELIEVING THAT THE DISTRICT COURT'S
DETERMINATION THAT THE CONSOLIDATION IN QUESTION DOES NOT VIOLATE SEC.
2 OF THE SHERMAN ACT (MONOPOLY) SHOULD BE AFFIRMED. 

FN3  UNITED STATES V. YELLOW CAB CO., 332 U.S. 218, CITED BY THE
COURT, ANTE, P. 671, IS WHOLLY IRRELEVANT. 

FN4  NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197; UNITED
STATES V. UNION PACIFIC R. CO., 226 U.S. 61; UNITED STATES V. SOUTHERN
PACIFIC CO., 259 U.S. 214. 

FN5  UNITED STATES V. READING CO., 253 U.S. 26, 59. 

FN6  THE PRESUMPTION WHICH THE COURT LAID DOWN IN PHILADELPHIA
NATIONAL BANK, SUPRA, AT 363, THAT "A MERGER WHICH PRODUCES A FIRM
CONTROLLING AN UNDUE PERCENTAGE SHARE OF THE RELEVANT MARKET, AND
RESULTS IN A SIGNIFICANT INCREASE IN THE CONCENTRATION OF FIRMS IN THAT
MARKET, IS  ...  INHERENTLY LIKELY TO LESSEN COMPETITION SUBSTANTIALLY
...  " WAS CONCERNED WITH THE APPLICATION OF SEC. 7 OF THE CLAYTON
ACT.  COMPARE TIMES-PICAYUNE PUB. CO. V. UNITED STATES, 345 U.S. 594,
612, A SHERMAN ACT CASE IN WHICH THE COURT NOTED THAT "NO MAGIC INHERES
IN NUMBERS," AND QUOTED WITH APPROVAL THE STATEMENT IN COLUMBIA STEEL,
SUPRA, AT 528, THAT "THE RELATIVE EFFECT OF PERCENTAGE COMMAND OF A
MARKET VARIES WITH THE SETTING IN WHICH THAT FACTOR IS PLACED." 

FN7  AS FOUND BY THE DISTRICT COURT, IN 1960, FIRST NATIONAL HAD
"TOTAL ASSETS OF $65,069,000, TOTAL DEPOSITS OF $58,673,000 AND TOTAL
NET LOANS AND DISCOUNTS OF $35,434,000."  208 F. SUPP., AT 459. 
SECURITY TRUST, IN 1960, HAD "TOTAL ASSETS OF $21,033,000, TOTAL
DEPOSITS OF $17,402,000 AND TOTAL NET LOANS AND DISCOUNTS OF
$12,317,000."  IBID. 

FN8  THE ONLY CONTRARY EVIDENCE, TESTIMONY OF PRESIDENTS OF THREE OF
THE FOUR COMPETING LOCAL BANKS WHO "EXPRESSED CONSIDERABLE FEAR THAT
THE CONSOLIDATION WOULD RESULT IN SERIOUS LOSS TO THE OTHER BANKS AND
WOULD BE DISASTROUS TO SOME OF THEM," 208 F. SUPP., AT 460, WAS
DISCREDITED BY THE DISTRICT COURT.  SEE SUPRA, P. 674.    FN9  WITH
REFERENCE TO THE PROBABLE DEVELOPMENT OF THE INDUSTRY, THE GOVERNMENT
TURNS TO THE PAST AND NOTES THAT THE NUMBER OF LOCAL BANKS DECREASED
FROM 10 TO 7 BETWEEN 1929 AND 1938; BUT THIS STATISTIC, MORE AT HOME IN
A CLAYTON ACT CASE, IS OF DOUBTFUL SIGNIFICANCE IN THE PRESENT CONTEXT,
PARTICULARLY IN VIEW OF THE PERIOD DURING WHICH THE DECREASE OCCURRED. 
THE SAME MAY BE SAID OF THE GOVERNMENT'S REFERENCE TO THE TESTIMONY OF
THE PRESIDENT OF A COMPETING BANK THAT THE CONSOLIDATION FROM WHICH HIS
BANK RESULTED WAS CARRIED THROUGH (YEARS BEFORE THE FIRST SECURITY
CONSOLIDATION) PRINCIPALLY TO ENABLE IT "TO BETTER COMPETE WITH THE
FIRST NATIONAL."  IN FACT, IN THE THREE YEARS SINCE THE FIRST SECURITY
CONSOLIDATION, THERE HAS BEEN NO FURTHER CONCENTRATION.    FN10  IT IS
ONE THING TO SAY, AS THE COURT DID IN TIMES-PICAYUNE, SUPRA, AT 609,
THAT "THE CLAYTON ACT'S MORE SPECIFIC STANDARDS ILLUMINATE THE PUBLIC
POLICY WHICH THE SHERMAN ACT WAS DESIGNED TO SUBSERVE  ...  ."  IT IS
QUITE ANOTHER THING TO TREAT THEM AS INTERCHANGEABLE.  SEE ID., AT 609
610. 
..END :











UNITED STATES V. BARNETT 376 U.S. 681 


NO. 107.  ARGUED OCTOBER 21-22, 1963.  - DECIDED APRIL 6, 1964.  -
REPORTED BELOW:  330 F.2D 369. 


THIS PROCEEDING AROSE FROM THE EFFORTS OF A NEGRO TO GAIN ADMISSION AS
A STUDENT TO THE UNIVERSITY OF MISSISSIPPI.  THE COURT OF APPEALS, SUA
SPONTE, APPOINTED THE ATTORNEY GENERAL OR HIS ASSISTANTS TO PROSECUTE
THIS CRIMINAL CONTEMPT PROCEEDING UNDER RULE 42(B) OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE AGAINST THE GOVERNOR AND LIEUTENANT GOVERNOR OF
MISSISSIPPI FOR DISOBEYING INJUNCTIVE ORDERS ISSUED BY THE COURT OF
APPEALS AND THE DISTRICT COURT.  THE ALLEGED CONTEMNERS DEMANDED TRIAL
BY JURY AND THE COURT OF APPEALS, BEING EVENLY DIVIDED, CERTIFIED TO
THIS COURT THE QUESTION WHETHER THEY WERE SO ENTITLED.  HELD:  THE
ALLEGED CONTEMNERS ARE NOT ENTITLED TO A JURY TRIAL. 

1.  ON THE FACTS CERTIFIED, THERE IS NO STATUTORY RIGHT TO TRIAL BY
JURY.  PP. 690-692. 

(A)  18 U.S.C. SECS. 402 AND 3691, WHICH PROVIDE FOR JURY TRIAL IN
CERTAIN INSTANCES OF CRIMINAL CONTEMPT, DO NOT APPLY SINCE THIS CASE
INVOLVES A CONTEMPT COMMITTED IN DISOBEDIENCE OF AN ORDER OF THE COURT
OF APPEALS.  PP. 690-692. 

(B)  IT WOULD BE ANOMALOUS FOR A COURT OF APPEALS TO HAVE THE POWER
TO PUNISH CONTEMPT OF ITS OWN ORDERS WITHOUT A JURY, BUT TO BE RENDERED
IMPOTENT TO DO SO WHEN THE OFFENSIVE BEHAVIOR HAPPENS TO BE IN CONTEMPT
OF A DISTRICT COURT ORDER AS WELL.  P. 692. 

2.  ON THE FACTS CERTIFIED, THERE IS NO CONSTITUTIONAL RIGHT TO TRIAL
BY JURY.  PP. 692-700. 

UNITED STATES V. BARNETT ET AL. 

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING IN CRIMINAL CONTEMPT WAS COMMENCED BY THE UNITED
STATES UPON THE SPECIFIC ORDER, SUA SPONTE, OF THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT.  ROSS R. BARNETT, GOVERNOR OF THE STATE OF
MISSISSIPPI AT THE TIME THIS ACTION AROSE, (FN1) AND PAUL B. JOHNSON,
JR., LIEUTENANT GOVERNOR, STAND CHARGED WITH WILLFULLY DISOBEYING
CERTAIN RESTRAINING ORDERS ISSUED, OR DIRECTED TO BE ENTERED, BY THAT
COURT.  GOVERNOR BARNETT AND LIEUTENANT GOVERNOR JOHNSON MOVED TO
DISMISS, DEMANDED A TRIAL BY JURY AND FILED MOTIONS TO SEVER AND TO
STRIKE VARIOUS CHARGES.  THE COURT OF APPEALS, BEING EVENLY DIVIDED ON
THE QUESTION OF RIGHT TO JURY TRIAL, HAS CERTIFIED THE QUESTION (FN2)
TO THIS COURT UNDER THE AUTHORITY OF 28 U.S.C. SEC. 1254(3).  330 F.2D
369.  WE PASS ONLY ON THE JURY ISSUE AND DECIDE THAT THE ALLEGED
CONTEMNERS ARE NOT ENTITLED TO A JURY AS A MATTER OF RIGHT. 

THE PROCEEDING IS THE AFTERMATH OF THE EFFORTS OF JAMES MEREDITH, A
NEGRO, TO ATTEND THE UNIVERSITY OF MISSISSIPPI.  MEREDITH SOUGHT
ADMISSION IN 1961 AND, UPON REFUSAL, FILED SUIT IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.  THAT COURT
DENIED RELIEF, BUT THE COURT OF APPEALS REVERSED AND DIRECTED THE
DISTRICT COURT TO GRANT THE RELIEF PRAYED FOR.  MEREDITH V. FAIR, 305
F.2D 343.  THE MANDATE WAS STAYED BY DIRECTION OF A SINGLE JUDGE OF THE
COURT OF APPEALS, WHEREUPON, ON JULY 27, THE COURT OF APPEALS SET ASIDE
THE STAY, RECALLED THE MANDATE, AMENDED AND REISSUED IT, INCLUDING ITS
OWN INJUNCTIVE ORDER "ENJOINING AND COMPELLING" THE BOARD OF TRUSTEES,
OFFICIALS OF THE UNIVERSITY AND ALL PERSONS HAVING KNOWLEDGE OF THE
DECREE TO ADMIT MEREDITH TO THE SCHOOL.  ON THE FOLLOWING DAY THE COURT
OF APPEALS ENTERED A SEPARATE AND SUPPLEMENTAL "INJUNCTIVE ORDER"
DIRECTING THE SAME PARTIES TO ADMIT MEREDITH AND TO REFRAIN FROM ANY
ACT OF DISCRIMINATION RELATING TO HIS ADMISSION OR CONTINUED
ATTENDANCE.  BY ITS TERMS, THIS ORDER WAS TO REMAIN IN EFFECT "UNTIL
SUCH TIME AS THERE HAS BEEN FULL AND ACTUAL COMPLIANCE IN GOOD FAITH
WITH EACH AND ALL OF SAID ORDERS BY THE ACTUAL ADMISSION OF MEREDITH
...  ."  AFTER A SERIES OF FURTHER DELAYS, THE DISTRICT COURT ENTERED
ITS INJUNCTION ON SEPTEMBER 13, 1962, DIRECTING THE MEMBERS OF THE
BOARD OF TRUSTEES AND THE OFFICIALS OF THE UNIVERSITY TO REGISTER
MEREDITH. 

WHEN IT BECAME APPARENT THAT THE DECREES MIGHT NOT BE HONORED, THE
UNITED STATES APPLIED TO THE COURT OF APPEALS ON SEPTEMBER 18 FOR
PERMISSION TO APPEAR IN THE COURT OF APPEALS IN THE CASE.  THIS
APPLICATION WAS GRANTED IN THE FOLLOWING TERMS: 

"IT IS ORDERED THAT THE UNITED STATES BE DESIGNATED AND AUTHORIZED TO
APPEAR AND PARTICIPATE AS AMICUS CURIAE IN ALL PROCEEDINGS IN THIS
ACTION BEFORE THIS COURT AND BY REASON OF THE MANDATES AND ORDERS OF
THIS COURT OF JULY 27, 28, 1962, AND SUBSEQUENTLY THERETO, ALSO BEFORE
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI TO ACCORD
EACH COURT THE BENEFIT OF ITS VIEWS AND RECOMMENDATIONS, WITH THE RIGHT
TO SUBMIT PLEADINGS, EVIDENCE, ARGUMENTS AND BRIEFS AND TO INITIATE
SUCH FURTHER PROCEEDINGS, INCLUDING PROCEEDINGS FOR INJUNCTIVE RELIEF
AND PROCEEDINGS FOR CONTEMPT OF COURT, AS MAY BE APPROPRIATE IN ORDER
TO MAINTAIN AND PRESERVE THE DUE ADMINISTRATION OF JUSTICE AND THE
INTEGRITY OF THE JUDICIAL PROCESSES OF THE UNITED STATES." 

MEANWHILE, THE MISSISSIPPI LEGISLATURE HAD ADOPTED AN EMERGENCY
MEASURE IN AN ATTEMPT TO PREVENT MEREDITH FROM ATTENDING THE
UNIVERSITY, BUT ON SEPTEMBER 20, UPON THE GOVERNMENT'S APPLICATION, THE
ENFORCEMENT OF THIS ACT WAS ENJOINED, ALONG WITH TWO STATE COURT
DECREES BARRING MEREDITH'S REGISTRATION.  ON THE SAME DAY MEREDITH WAS
REBUFFED IN HIS EFFORTS TO GAIN ADMISSION.  BOTH HE AND THE UNITED
STATES FILED MOTIONS IN CONTEMPT IN THE DISTRICT COURT CITING THE
CHANCELLOR, THE REGISTRAR AND THE DEAN OF THE COLLEGE OF LIBERAL ARTS.
AFTER A HEARING THEY WERE ACQUITTED ON THE GROUND THAT THE BOARD OF
TRUSTEES HAD STRIPPED THEM OF ALL POWERS TO ACT ON MEREDITH'S
APPLICATION AND THAT SUCH POWERS WERE IN GOVERNOR BARNETT, AS AGENT OF
THE BOARD. 

THE UNITED STATES THEN MOVED IN THE COURT OF APPEALS FOR A SHOW-CAUSE
ORDER IN CONTEMPT AGAINST THE BOARD OF TRUSTEES, BASED ON THE ORDER OF
THAT COURT DATED JULY 28.  AN EN BANC HEARING WAS HELD AT WHICH THE
BOARD INDICATED THAT IT WAS READY TO ADMIT MEREDITH, AND ON SEPTEMBER
24 THE COURT ENTERED AN ORDER REQUIRING THE BOARD TO REVOKE ITS ACTION
APPOINTING GOVERNOR BARNETT TO ACT AS ITS AGENT.  THE ORDER ALSO
REQUIRED THE REGISTRAR, ROBERT B. ELLIS, TO BE AVAILABLE ON SEPTEMBER
25 TO ADMIT MEREDITH. 

ON THE EVENING OF SEPTEMBER 24, THE UNITED STATES FILED AN ANCILLARY
ACTION TO THE MEREDITH V. FAIR LITIGATION SEEKING A TEMPORARY
RESTRAINING ORDER AGAINST THE STATE OF MISSISSIPPI, GOVERNOR BARNETT,
THE ATTORNEY GENERAL OF MISSISSIPPI, THE COMMISSIONER OF PUBLIC SAFETY
AND VARIOUS LESSER OFFICIALS.  THIS APPLICATION SPECIFICALLY ALLEGED
THAT THE GOVERNOR HAD IMPLEMENTED THE STATE'S POLICY OF MASSIVE
RESISTANCE TO THE COURT'S ORDERS, BY PERSONAL ACTION, AS WELL AS BY USE
OF THE STATE'S VARIOUS AGENCIES, TO FRUSTRATE AND DESTROY THE SAME;
THAT THE GOVERNOR'S ACTION WOULD RESULT IN IMMEDIATE AND IRREPARABLE
INJURY TO THE UNITED STATES, CONSISTING OF IMPAIRMENT OF THE INTEGRITY
OF ITS JUDICIAL PROCESSES, OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE
AND DEPRIVATION OF MEREDITH'S DECLARED RIGHTS UNDER THE CONSTITUTION
AND LAWS OF THE UNITED STATES.  ON THE BASIS OF SUCH ALLEGATIONS AND AT
THE SPECIFIC INSTANCE OF THE UNITED STATES AS THE SOLE MOVING PARTY AND
ON ITS OWN BEHALF, THE COURT OF APPEALS ISSUED A TEMPORARY RESTRAINING
ORDER AT 8:30 A.M. ON THE 25TH AGAINST EACH OF THESE PARTIES
RESTRAINING THEM FROM PERFORMING SPECIFIC ACTS SET OUT THEREIN AND FROM
INTERFERING WITH OR OBSTRUCTING BY ANY MEANS ITS ORDER OF JULY 28 AND
THAT OF THE DISTRICT COURT OF SEPTEMBER 13.  THEREAFTER THE UNITED
STATES FILED A VERIFIED APPLICATION SHOWING THAT ON THE AFTERNOON OF
THE 25TH GOVERNOR BARNETT, "HAVING ACTUAL KNOWLEDGE OF  ...  THE
TEMPORARY RESTRAINING ORDER, DELIBERATELY PREVENTED JAMES H. MEREDITH
FROM ENTERING THE OFFICE OF THE BOARD OF TRUSTEES  ...  AT A TIME WHEN
JAMES H. MEREDITH WAS SEEKING TO APPEAR BEFORE ROBERT B. ELLIS IN ORDER
TO REGISTER  ...  AND THAT BY SUCH CONDUCT ROSS R. BARNETT DID WILFULLY
INTERFERE WITH AND OBSTRUCT JAMES H. MEREDITH IN THE ENJOYMENT OF HIS
RIGHTS UNDER THIS COURT'S ORDER OF JULY 28, 1962 ...  ALL IN VIOLATION
OF THE TERMS OF THE TEMPORARY RESTRAINING ORDER ENTERED BY THE COURT
THIS DAY."  THE COURT THEN ENTERED A SHOW-CAUSE ORDER IN CONTEMPT
AGAINST GOVERNOR BARNETT REQUIRING HIM TO APPEAR ON SEPTEMBER 28.  ON
SEPTEMBER 26, A SIMILAR ORDER WAS ISSUED AGAINST LIEUTENANT GOVERNOR
JOHNSON REQUIRING HIM TO APPEAR ON SEPTEMBER 29.  ON SEPTEMBER 28, THE
COURT OF APPEALS, EN BANC AND AFTER A HEARING, FOUND THE GOVERNOR IN
CIVIL CONTEMPT AND DIRECTED THAT HE BE PLACED IN THE CUSTODY OF THE
ATTORNEY GENERAL AND PAY A FINE OF $10,000 FOR EACH DAY OF HIS
RECALCITRANCE, UNLESS HE PURGED HIMSELF BY OCTOBER 2.  ON THE NEXT DAY
LIEUTENANT GOVERNOR JOHNSON WAS FOUND IN CONTEMPT BY A PANEL OF THE
COURT AND A SIMILAR ORDER WAS ENTERED WITH A FINE OF $5,000 A DAY. 

ON SEPTEMBER 30, PRESIDENT KENNEDY ISSUED A PROCLAMATION COMMANDING
ALL PERSONS ENGAGED IN THE OBSTRUCTION OF THE LAWS AND THE ORDERS OF
THE COURTS TO "CEASE AND DESIST THEREFROM AND TO DISPERSE AND RETIRE
PEACEABLY FORTHWITH."  76 STAT. 1506.  THE PRESIDENT ALSO ISSUED AN
EXECUTIVE ORDER DISPATCHING A FORCE OF UNITED STATES MARSHALS AND A
DETACHMENT OF THE ARMED FORCES TO ENFORCE THE COURT'S ORDERS.  ON
SEPTEMBER 30, MEREDITH, ACCOMPANIED BY THE MARSHALS, WAS MOVED INTO A
DORMITORY ON THE UNIVERSITY CAMPUS AND WAS REGISTERED THE NEXT DAY. 
ALTHOUGH RIOTING BROKE OUT, ORDER WAS SOON RESTORED, WITH SOME
CASUALTIES, AND MEREDITH CARRIED ON HIS STUDIES UNDER CONTINUOUS GUARD
UNTIL HIS GRADUATION. 

ON NOVEMBER 15, 1962, THE COURT OF APPEALS, SUA SPONTE, APPOINTED THE
ATTORNEY GENERAL OR HIS DESIGNATED ASSISTANTS TO PROSECUTE THIS
CRIMINAL CONTEMPT PROCEEDING AGAINST THE GOVERNOR AND LIEUTENANT
GOVERNOR PURSUANT TO RULE 42(B) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE.  ON APPLICATION OF THE ATTORNEY GENERAL, THE COURT OF
APPEALS ISSUED A SHOW-CAUSE ORDER IN CRIMINAL CONTEMPT BASED ON THE
COURT OF APPEALS' TEMPORARY RESTRAINING ORDER OF SEPTEMBER 25, ITS
INJUNCTIVE ORDER OF JULY 28, AND THE DISTRICT COURT'S ORDER OF
SEPTEMBER 13.  IT IS OUT OF THIS PROCEEDING THAT THE CERTIFIED QUESTION
ARISES. 

AS WE HAVE SAID, THE SOLE ISSUE BEFORE US IS WHETHER THE ALLEGED
CONTEMNERS ARE ENTITLED AS A MATTER OF RIGHT TO A JURY TRIAL ON THE
CHARGES.  WE CONSIDER THIS ISSUE WITHOUT PREJUDICE TO ANY OTHER
CONTENTIONS THAT HAVE BEEN INTERPOSED IN THE CASE AND WITHOUT ANY
INDICATION AS TO THEIR MERITS. 

                                   I. 

THE FIRST CONGRESS IN THE JUDICIARY ACT OF 1789 CONFERRED ON FEDERAL
COURTS THE POWER "TO PUNISH BY FINE OR IMPRISONMENT, AT THE DISCRETION
OF SAID COURTS, ALL CONTEMPTS OF AUTHORITY IN ANY CAUSE OR HEARING
BEFORE THE SAME  ...  ."  1 STAT. 83.  IT IS UNDISPUTED THAT THIS ACT
GAVE FEDERAL COURTS THE DISCRETIONARY POWER TO PUNISH FOR CONTEMPT AS
THAT POWER WAS KNOWN TO THE COMMON LAW.  IN RE SAVIN, 131 U.S. 267, 275
276 (1889).  IN 1831, AFTER THE UNSUCCESSFUL IMPEACHMENT PROCEEDINGS
AGAINST JUDGE PECK, (FN3) THE CONGRESS RESTRICTED THE POWER OF FEDERAL
COURTS TO INFLICT SUMMARY PUNISHMENT FOR CONTEMPT TO MISBEHAVIOR "IN
THE PRESENCE OF THE SAID COURTS, OR SO NEAR THERETO AS TO OBSTRUCT THE
ADMINISTRATION OF JUSTICE," MISBEHAVIOR OF COURT OFFICERS IN OFFICIAL
MATTERS, AND DISOBEDIENCE OR RESISTANCE BY ANY PERSON TO ANY LAWFUL
WRIT, PROCESS, ORDER, RULE, DECREE, OR COMMAND OF THE COURTS.  ACT OF
MARCH 2, 1831, C. 99, 4 STAT. 487, 488.  THESE PROVISIONS ARE NOW
CODIFIED IN 18 U.S.C. SEC. 401 WITHOUT MATERIAL DIFFERENCE.  (FN4)  THE
COURT OF APPEALS PROCEEDED IN THIS CASE UNDER THE AUTHORITY OF THIS

THE ALLEGED CONTEMNERS CLAIM, HOWEVER, THAT THE POWERS GRANTED
FEDERAL COURTS UNDER SEC. 401 WERE LIMITED BY THE CONGRESS IN 1914 BY
THE PROVISIONS OF SECS. 21, 22 AND 24 OF THE CLAYTON ACT, 38 STAT. 738
740, NOW CODIFIED AS 18 U.S.C. SECS. 402 AND 3691.  THESE SECTIONS
GUARANTEE THE RIGHT TO A JURY TRIAL IN CONTEMPT PROCEEDINGS ARISING OUT
OF DISOBEDIENCE TO ORDERS "OF ANY DISTRICT COURT OF THE UNITED STATES
OR ANY COURT OF THE DISTRICT OF COLUMBIA," PROVIDED THAT THE CONDUCT
COMPLAINED OF ALSO CONSTITUTES A CRIMINAL OFFENSE UNDER THE LAWS OF THE
UNITED STATES OR OF ANY STATE.  BUT THE CLAYTON ACT FURTHER PROVIDES
THAT THE REQUIREMENT OF A JURY DOES NOT APPLY TO "CONTEMPTS COMMITTED
IN DISOBEDIENCE OF ANY LAWFUL WRIT, PROCESS, ORDER, RULE, DECREE, OR
COMMAND ENTERED IN ANY SUIT OR ACTION BROUGHT OR PROSECUTED IN THE NAME
OF, OR ON BEHALF OF, THE UNITED STATES, BUT THE SAME, AND ALL OTHER
CASES OF CONTEMPT NOT SPECIFICALLY EMBRACED IN THIS SECTION MAY BE
PUNISHED IN CONFORMITY TO THE PREVAILING USAGES AT LAW."  18 U.S.C.
SEC. 402.  RULE 42(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
THEREAFTER SET DOWN THE PROCEDURAL REQUIREMENTS FOR ALL CONTEMPT
ACTIONS, PROVIDING THAT "THE DEFENDANT IS ENTITLED TO A TRIAL BY JURY
IN ANY CASE IN WHICH AN ACT OF CONGRESS SO PROVIDES." 

WE NOW PROCEED TO A CONSIDERATION OF THE CLAIM OF A RIGHT TO TRIAL BY
JURY UNDER THESE STATUTES AND UNDER THE CONSTITUTION OF THE UNITED
STATES. 

             II. 

GOVERNOR BARNETT AND LIEUTENANT GOVERNOR JOHNSON FIRST CONTEND THAT
THE RECORD CLEARLY SHOWS THAT THE UNITED STATES INVOKED THE PROCEEDINGS
TAKEN BY THE COURT OF APPEALS AND SOUGHT THAT COURT OUT AS A SOURCE OF
ORDERS, DUPLICATING THE ORDERS OBTAINED BY THE REAL PARTY IN INTEREST
IN THE DISTRICT COURT, SOLELY FOR THE PURPOSE OF BY-PASSING THE
DISTRICT COURT AND DEPRIVING THEM OF THEIR RIGHT TO A JURY.  WE FIND NO
EVIDENCE OF THIS.  INDEED, THE COURT OF APPEALS GRANTED INJUNCTIVE
RELIEF ONLY AFTER IT HAD JURISDICTION OVER MEREDITH'S APPEAL, AFTER IT
HAD ACTED UPON THAT APPEAL AND AFTER ITS ORDER WAS BEING FRUSTRATED. 

NEXT IT IS CONTENDED THAT THE COURT OF APPEALS HAD NO JURISDICTION IN
THE MATTER SINCE ITS MANDATE HAD BEEN ISSUED AND THE CASE HAD BEEN
REMANDED TO THE DISTRICT COURT.  (FN5)  ON A CERTIFICATE WE DO NOT PASS
ON ALLEGED IRREGULARITIES IN THE PROCEEDINGS IN THE COURT BELOW, AS
SUCH CONTENTIONS ARE CLEARLY PREMATURE.  (FN6) 

THE ALLEGED CONTEMNERS NEXT ASSERT THAT SEC. 402 IS APPLICABLE.  THEY
URGE THAT SINCE SEC. 402 GIVES A JURY TRIAL TO THOSE CHARGED WITH
CONTEMPT IN "ANY COURT OF THE DISTRICT OF COLUMBIA," THIS WOULD INCLUDE
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.  THEY ARGUE FROM
THIS THAT THE SECTION MUST BE CONSTRUED TO APPLY TO ALL OTHER COURTS OF
APPEALS TO AVOID MANIFEST DISCRIMINATION WHICH THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT PROHIBITS AND TO COMPLY WITH THE PRIVILEGES AND
IMMUNITIES CLAUSE OF ART. IV, SEC. 2 OF THE CONSTITUTION.  WE ARE NOT
PERSUADED.  AT THE TIME THAT THE CLAYTON ACT WAS ADOPTED, THE TRIAL
COURT OF GENERAL JURISDICTION IN THE DISTRICT OF COLUMBIA WAS KNOWN AS
THE "SUPREME COURT OF THE DISTRICT OF COLUMBIA" RATHER THAN THE UNITED
STATES DISTRICT COURT.  MOREOVER, THERE WERE ALSO INFERIOR COURTS THERE
KNOWN AS THE MUNICIPAL AND POLICE COURTS AND NOW CALLED THE "DISTRICT
OF COLUMBIA COURT OF GENERAL SESSIONS."  SINCE NONE OF THESE TRIAL
COURTS OF THE DISTRICT WOULD HAVE BEEN INCLUDED IN THE DESIGNATION "ANY
DISTRICT COURT OF THE UNITED STATES," THE INSERTION OF "ANY COURT OF
THE DISTRICT OF COLUMBIA" WAS NECESSARY TO ADAPT THE BILL TO THE
JUDICIAL NOMENCLATURE OF THE DISTRICT OF COLUMBIA.  IT IS HARDLY
POSSIBLE TO SUPPOSE THAT THE HOUSE, WHERE THIS PHRASE WAS INSERTED
WITHOUT EXPLANANTION, WAS SOMEHOW BY THIS LANGUAGE REVERSING THE
DECISION TO EXCLUDE APPELLATE COURTS FROM THE JURY REQUIREMENTS.  (FN7)
THIS IS SHOWN BY THE LEGISLATIVE HISTORY OF THE BILL WHEN DISCUSSED IN
THE SENATE, 51 CONG. REC. 14414, WHERE IT WAS MADE EXPLICIT THAT THE
BILL "APPLIES  ...  ONLY TO ORDERS OF THE DISTRICT COURTS; CONTEMPTS OF
ORDERS OF ALL OTHER COURTS MUST BE HAD AS NOW." 

NOR CAN WE CONCLUDE FROM THE RECORD HERE THAT THE SHOW-CAUSE ORDER
DIRECTED BY THE COURT OF APPEALS TO THE ALLEGED CONTEMNERS MUST BE
CONSTRUED AS BEING FOUNDED UPON VIOLATIONS OF THE DISTRICT COURT'S
INJUNCTION OF SEPTEMBER 13, ENTERED UPON THE SPECIFIC ORDER OF THE
COURT OF APPEALS.  THE SHOW-CAUSE ORDER SPECIFIES THAT THREE
INJUNCTIONS WERE VIOLATED, I.E., THE ORIGINAL ONE OF THE COURT OF
APPEALS OF JULY 28 DIRECTING MEREDITH'S ADMISSION; THE DISTRICT COURT'S
AFORESAID ORDER OF SEPTEMBER 13 WHICH GENERALLY EMBODIED THE SAME
TERMS; AND THE INJUNCTION OF SEPTEMBER 25 DIRECTED AT THE ALLEGED
CONTEMNERS.  THE CLAIM IS, FIRST, THAT THE DISTRICT COURT'S ORDER OF
SEPTEMBER 13 SUPERSEDED THE EARLIER COURT OF APPEALS ORDER OF JULY 28,
AND THAT THE SEPTEMBER 25 ORDER OF THE COURT OF APPEALS WAS WITHOUT
SIGNIFICANCE SINCE IT ADDED NOTHING TO THE EARLIER ORDERS EXCEPT TO
SPECIFICALLY NAME THE ALLEGED CONTEMNERS.  BUT IT CAN HARDLY BE SAID
THAT THERE WAS A SUPERSESSION, SINCE THE JULY 28 ORDER SPECIFICALLY
RETAINED JURISDICTION.  NOR IS THE SEPTEMBER 25 ORDER OF NO
SIGNIFICANCE, AS IT IS THE PRINCIPAL ORDER UPON WHICH THE ALLEGED
CONTEMNERS' CONTEMPTUOUS CONDUCT IS PREDICATED.  MOREOVER, IT MAY BE
THAT ON TRIAL THE COURT OF APPEALS WILL LIMIT THE CHARGE TO ITS OWN
ORDERS.  SECONDLY, IT IS SAID THAT, SINCE THE CONTEMPT MOTION INCLUDES
AN ORDER OF THE DISTRICT COURT, THE REQUIREMENTS OF SECS. 402 AND 3691
MAKE A JURY NECESSARY.  IT WOULD BE ANOMALOUS FOR A COURT OF APPEALS TO
HAVE THE POWER TO PUNISH CONTEMPT OF ITS OWN ORDERS WITHOUT A JURY, BUT
TO BE RENDERED IMPOTENT TO DO SO WHEN THE OFFENSIVE BEHAVIOR HAPPENS TO
BE IN CONTEMPT OF A DISTRICT COURT ORDER AS WELL.  WE ARE UNABLE TO
ATTRIBUTE TO CONGRESS AN INTENT TO AWARD FAVORED TREATMENT TO A PERSON
WHO IS CONTEMPTUOUS OF TWO OR THREE ORDERS INSTEAD OF ONLY ONE.  (FN8)

                          III. 

FINALLY, IT IS URGED THAT THOSE CHARGED WITH CRIMINAL CONTEMPT HAVE A
CONSTITUTIONAL RIGHT TO A JURY TRIAL.  (FN9)  THIS CLAIM HAS BEEN MADE
AND REJECTED HERE AGAIN AND AGAIN.  ONLY SIX YEARS AGO WE HELD A FULL
REVIEW OF THE ISSUE IN GREEN V. UNITED STATES, 356 U.S. 165 (1958).  WE
HELD THERE THAT "THE STATEMENTS OF THIS COURT IN A LONG AND UNBROKEN
LINE OF DECISIONS INVOLVING CONTEMPTS RANGING FROM MISBEHAVIOR IN COURT
TO DISOBEDIENCE OF COURT ORDERS ESTABLISH BEYOND PERADVENTURE THAT
CRIMINAL CONTEMPTS ARE NOT SUBJECT TO JURY TRIAL AS A MATTER OF
CONSTITUTIONAL RIGHT."  AT 183.  NOR CAN IT BE SAID WITH ACCURACY THAT
THESE CASES WERE BASED UPON HISTORICAL ERROR.  IT HAS ALWAYS BEEN THE
LAW OF THE LAND, BOTH STATE AND FEDERAL, THAT THE COURTS - EXCEPT WHERE
SPECIFICALLY PRECLUDED BY STATUTE - HAVE THE POWER TO PROCEED SUMMARILY
IN CONTEMPT MATTERS.  THERE WERE, OF COURSE, STATUTES ENACTED BY SOME
OF THE COLONIES WHICH PROVIDED TRIVIAL PUNISHMENT IN SPECIFIC, BUT
LIMITED, INSTANCES.  SOME STATUTES CONCERNED THE CONTEMPT POWERS OF
ONLY CERTAIN COURTS OR MINOR JUDICIAL OFFICERS.  OTHERS CONCERNED
SPECIFIC OFFENSES SUCH AS SWEARING IN THE PRESENCE OF OFFICIALS OR THE
FAILURE OF A WITNESS OR JUROR TO ANSWER A SUMMONS. 

BUT IT CANNOT BE SAID THAT THESE STATUTES SET A STANDARD PERMITTING
EXERCISE OF THE SUMMARY CONTEMPT POWER ONLY FOR OFFENSES CLASSIFIED AS
TRIVIAL.  INDEED, THE SHORT ANSWER TO THIS CONTENTION IS THE JUDICIARY
ACT OF 1789 WHICH PROVIDED THAT THE COURTS OF THE UNITED STATES SHALL
HAVE POWER TO "PUNISH BY FINE OR IMPRISONMENT, AT THE DISCRETION OF
SAID COURTS, ALL CONTEMPTS OF AUTHORITY IN ANY CAUSE OR HEARING BEFORE
THE SAME."  (FN10)  IT WILL BE REMEMBERED THAT THIS LEGISLATION WAS
ENACTED BY MEN FAMILIAR WITH THE NEW CONSTITUTION.  MADISON URGED
PASSAGE OF THE ACT IN THE HOUSE AND FIVE OF THE EIGHT MEMBERS OF THE
SENATE COMMITTEE WHICH RECOMMENDED ADOPTION, WERE ALSO DELEGATES TO THE
CONSTITUTIONAL CONVENTION OF 1787.  1 ANNALS OF CONGRESS 18, 812-813. 
IT IS ALSO ASSERTED THAT A LIMITATION UPON THE SUMMARY CONTEMPT POWER
IS TO BE INFERRED FROM THE FACT THAT SUBSEQUENT STATUTES OF SOME OF THE
STATES HAD LIMITATION PROVISIONS ON PUNISHMENT FOR CONTEMPTS.  BUT OUR
INQUIRY CONCERNS THE STANDARD PREVAILING AT THE TIME OF THE ADOPTION OF
THE CONSTITUTION, NOT A SCORE OR MORE YEARS LATER.  FINALLY, EARLY
CASES HAVE BEEN FERRETED OUT, BUT NOT ONE FEDERAL CASE HAS BEEN FOUND
TO SUPPORT THE THEORY THAT COURTS, IN THE EXERCISE OF THEIR SUMMARY
CONTEMPT POWERS, WERE LIMITED TO TRIVIAL OFFENSES.  (FN11)  ON THE
CONTRARY, AN 1801 OPINION IN THE CASE OF UNITED STATES V. DUANE, 25
FED. CAS. 920, NO. 14,997, HAD THIS SIGNIFICANT LANGUAGE: 

"BUT THOUGH THE COURT HAVE POWER TO PUNISH AT DISCRETION, IT IS FAR
FROM THEIR INCLINATION TO CRUSH YOU, BY AN OPPRESSIVE FINE, OR LASTING
IMPRISONMENT.  THEY HOPE AND BELIEVE OFFENCES OF THIS KIND WILL BE
PREVENTED IN FUTURE BY A GENERAL CONVICTION OF THEIR DESTRUCTIVE
TENDENCY, AND BY AN ASSURANCE THAT THE COURT POSSESS BOTH THE POWER AND
THE RESOLUTION TO PUNISH THEM."  AT 922. 

FOLLOWING THIS HOLDING WE HAVE AT LEAST 50 CASES OF THIS COURT THAT
SUPPORT SUMMARY DISPOSITION OF CONTEMPTS, WITHOUT REFERENCE TO ANY
DISTINCTION BASED ON THE SERIOUSNESS OF THE OFFENSE.  WE LIST THESE IN
THE MARGIN.  (FN12)  IT DOES APPEAR TRUE THAT SINCE 1957 THE PENALTIES
IMPOSED IN CASES REACHING THIS COURT HAVE INCREASED APPRECIABLY.  BUT
THOSE CASES DID NOT SETTLE ANY CONSTITUTIONAL QUESTIONS AS TO THE
PUNISHMENT IMPOSED. 

AND WITH REFERENCE TO STATE CASES, IT IS INTERESTING TO NOTE THAT THE
STATE OF MISSISSIPPI HAS RECOGNIZED AND ENFORCED SUMMARY PUNISHMENT FOR
CONTEMPT FOR OVER 100 YEARS UNDER THE AUTHORITY OF WATSON V. WILLIAMS,
36 MISS.  331 (1858), A CELEBRATED CASE THAT HAS BEEN CITED WITH
APPROVAL IN MANY STATE JURISDICTIONS AS WELL AS IN CASES OF THIS
COURT.  SEE EX PARTE TERRY, 128 U.S. 289, 303 (1888), AND IN RE DEBS,
158 U.S. 564, 595 (1895).  AND JUST ONE YEAR BEFORE WE DECIDED GREEN,
SUPRA, MISSISSIPPI SPECIFICALLY APPROVED, IN YOUNG V. STATE, 230 MISS. 
525, 528 (1957), ITS PREVIOUS HOLDING THAT THE "OVERWHELMING WEIGHT OF
AUTHORITY IS THAT IN SUCH CASES (CONTEMPT) THEY (THE DEFENDANTS) WERE
NOT ENTITLED TO A JURY TRIAL."  O'FLYNN V. STATE, 89 MISS.  850, 862. 
(FN13) 

WE WILL MAKE SPECIFIC REFERENCE TO ONLY A FEW OF THE FEDERAL CASES. 
AS EARLY AS 1812 THIS COURT HELD THAT "CERTAIN IMPLIED POWERS MUST
NECESSARILY RESULT TO OUR COURTS OF JUSTICE FROM THE NATURE OF THEIR
INSTITUTION  ...  .  TO FINE FOR CONTEMPT - IMPRISON FOR CONTUMACY -
INFORCE THE OBSERVANCE OF ORDER  ...  ."  MR. JUSTICE JOHNSON IN UNITED
STATES V. HUDSON & GOODWIN, 7 CRANCH 32, 34.  IN THE CASE OF IN RE
SAVIN, SUPRA, AT 276, THE FIRST MR. JUSTICE HARLAN WRITING FOR THE
COURT SAID: "WE DO NOT DOUBT THAT THE POWER TO PROCEED SUMMARILY, FOR
CONTEMPT, IN THOSE CASES (IN PRESENCE OF COURT, IN OFFICIAL
TRANSACTIONS AND IN RESISTANCE TO LAWFUL PROCESS), REMAINS AS UNDER THE
ACT OF 1831  ...  .  IT WAS, IN EFFECT, SO ADJUDGED IN EX PARTE TERRY
(SUPRA, AT 304)."  AND IN EILENBECKER V.  DISTRICT COURT, 134 U.S. 31
(1890), A CONTEMPT WAS BASED ON THE VIOLATION OF A COURT ORDER.  MR.
JUSTICE MILLER SAID: 

"IF IT HAS EVER BEEN UNDERSTOOD THAT PROCEEDINGS ACCORDING TO THE
COMMON LAW FOR CONTEMPT OF COURT HAVE BEEN SUBJECT TO THE RIGHT OF
TRIAL BY JURY, WE HAVE BEEN UNABLE TO FIND ANY INSTANCE OF IT.  IT HAS
ALWAYS BEEN ONE OF THE ATTRIBUTES - ONE OF THE POWERS NECESSARILY
INCIDENT TO A COURT OF JUSTICE - THAT IT SHOULD HAVE THIS POWER OF
VINDICATING ITS DIGNITY, OF ENFORCING ITS ORDERS, OF PROTECTING ITSELF
FROM INSULT, WITHOUT THE NECESSITY OF CALLING UPON A JURY TO ASSIST IT
IN THE EXERCISE OF THIS POWER."  AT 36. 

AND IN 1895 MR. JUSTICE BREWER IN IN RE DEBS, 158 U.S. 564, A LEADING
AUTHORITY IN THIS COURT, WROTE: 

"NOR IS THERE  ...  ANY INVASION OF THE CONSTITUTIONAL RIGHT OF TRIAL
BY JURY  ...  .  THE POWER OF A COURT TO MAKE AN ORDER CARRIES WITH IT
THE EQUAL POWER TO PUNISH FOR A DISOBEDIENCE OF THAT ORDER, AND THE
INQUIRY AS TO THE QUESTION OF DISOBEDIENCE HAS BEEN, FROM TIME
IMMEMORIAL, THE SPECIAL FUNCTION OF THE COURT.  AND THIS IS NO
TECHNICAL RULE.  IN ORDER THAT A COURT MAY COMPEL OBEDIENCE TO ITS
ORDERS IT MUST HAVE THE RIGHT TO INQUIRE WHETHER THERE HAS BEEN ANY
DISOBEDIENCE THEREOF.  TO SUBMIT THE QUESTION OF DISOBEDIENCE TO
ANOTHER TRIBUNAL, BE IT A JURY OR ANOTHER COURT, WOULD OPERATE TO
DEPRIVE THE PROCEEDING OF HALF ITS EFFICIENCY."  AT 594-595. 

MR. JUSTICE HOLMES IN AN EQUALLY WELL KNOWN AND AUTHORITATIVE
DECISION FOR THIS COURT, UNITED STATES V. SHIPP, 203 U.S. 563 (1906),
UPHELD THE POWER OF THIS COURT, WITHOUT A JURY, TO PUNISH DISOBEDIENCE
TO ITS ORDERS.  "THE FIRST QUESTION," HE SAID, "NATURALLY, IS THAT OF
THE JURISDICTION OF THIS COURT.  THE JURISDICTION TO PUNISH FOR A
CONTEMPT IS NOT DENIED AS A GENERAL ABSTRACT PROPOSITION, AS, OF
COURSE, IT COULD NOT BE WITH SUCCESS.  EX PARTE ROBINSON, 19 WALL. 
505, 510; EX PARTE TERRY, 128 U.S. 289, 302, 303."  AT 572.  HE ALSO
EMPHASIZED THAT "THE COURT IS NOT A PARTY.  THERE IS NOTHING THAT
AFFECTS THE JUDGES IN THEIR OWN PERSONS.  THEIR CONCERN IS ONLY THAT
THE LAW SHOULD BE OBEYED AND ENFORCED, AND THEIR INTEREST IS NO OTHER
THAN THAT THEY REPRESENT IN EVERY CASE."  AT 574.  SINCE SHIPP WAS A
CASE OF ORIGINAL JURISDICTION IN THIS COURT, TESTIMONY WAS THEN TAKEN
BEFORE A COMMISSIONER, NOT A JURY, 214 U.S. 386, 471.  AFTER ARGUMENT
THIS COURT ADJUDGED THE DEFENDANTS GUILTY, 214 U.S. 386, AND SENTENCED
SOME OF THEM TO PRISON, 215 U.S. 580. 

MR. JUSTICE HOLMES ALSO WROTE ANOTHER LEADING CASE IN THE CONTEMPT
FIELD IN 1914, GOMPERS V. UNITED STATES, 233 U.S. 604, IN WHICH HE MADE
EXPLICIT WHAT HE LEFT IMPLICIT IN SHIPP, SUPRA: 

"THE INQUIRY WAS DIRECTED SOLELY WITH A VIEW TO PUNISHMENT FOR PAST
ACTS, NOT TO SECURE OBEDIENCE FOR THE FUTURE; AND TO AVOID REPETITION
IT WILL BE UNDERSTOOD THAT ALL THAT WE HAVE TO SAY CONCERNS PROCEEDINGS
OF THIS SORT ONLY, AND FURTHER, ONLY PROCEEDINGS FOR SUCH CONTEMPT NOT
COMMITTED IN THE PRESENCE OF THE COURT."  AT 606. 

     *         *         *         *         * 

"IT IS URGED IN THE FIRST PLACE THAT CONTEMPTS CANNOT BE CRIMES,
BECAUSE, ALTHOUGH PUNISHABLE BY IMPRISONMENT AND THEREFORE, IF CRIMES,
INFAMOUS, THEY ARE NOT WITHIN THE PROTECTION OF THE CONSTITUTION AND
THE AMENDMENTS GIVING A RIGHT TO TRIAL BY JURY  ...  .  IT DOES NOT
FOLLOW THAT CONTEMPTS OF THE CLASS UNDER CONSIDERATION ARE NOT CRIMES,
OR RATHER,  ...  OFFENSES, BECAUSE TRIAL BY JURY AS IT HAS BEEN
GRADUALLY WORKED OUT AND FOUGHT OUT HAS BEEN THOUGHT NOT TO EXTEND TO
THEM AS A MATTER OF CONSTITUTIONAL RIGHT."  AT 610. 

IN 1919 CHIEF JUSTICE WHITE IN EX PARTE HUDGINGS, 249 U.S. 378,
RESTATED THE SAME PRINCIPLE IN THESE WORDS: 

"EXISTING WITHIN THE LIMITS OF AND SANCTIONED BY THE CONSTITUTION,
THE POWER TO PUNISH FOR CONTEMPT COMMITTED IN THE PRESENCE OF THE COURT
IS NOT CONTROLLED BY THE LIMITATIONS OF THE CONSTITUTION AS TO MODES OF
ACCUSATION AND METHODS OF TRIAL GENERALLY SAFEGUARDING THE RIGHTS OF
THE CITIZEN  ...  . THE ONLY PURPOSE IS TO SECURE JUDICIAL AUTHORITY
FROM OBSTRUCTION IN THE PERFORMANCE OF ITS DUTIES TO THE END THAT MEANS
APPROPRIATE FOR THE PRESERVATION AND ENFORCEMENT OF THE CONSTITUTION
MAY BE SECURED."  AT 383. 

FINALLY, MR. JUSTICE SUTHERLAND IN MICHAELSON V. UNITED STATES, 266
U.S. 42 (1924), IN UPHOLDING THE CONSTITUTIONALITY OF THE SECTIONS OF
THE CLAYTON ACT CONTAINED IN 18 U.S.C. SECS. 402 AND 3691, SAID THAT
THESE PROVISIONS WERE OF: 

"  ...  NARROW SCOPE, DEALING WITH THE SINGLE CLASS WHERE THE ACT OR
THING CONSTITUTING THE CONTEMPT IS ALSO A CRIME IN THE ORDINARY SENSE. 
IT DOES NOT INTERFERE WITH THE POWER TO DEAL SUMMARILY WITH CONTEMPTS
COMMITTED IN THE PRESENCE OF THE COURT OR SO NEAR THERETO AS TO
OBSTRUCT THE ADMINISTRATION OF JUSTICE, AND IS IN EXPRESS TERMS
CAREFULLY LIMITED TO THE CASES OF CONTEMPT SPECIFICALLY DEFINED. 
NEITHER DO WE THINK IT PURPORTS TO REACH CASES OF FAILURE OR REFUSAL TO
COMPLY AFFIRMATIVELY WITH A DECREE - THAT IS TO DO SOMETHING WHICH A
DECREE COMMANDS  ...  .  IF THE REACH OF THE STATUTE HAD EXTENDED TO
THE CASES WHICH ARE EXCLUDED A DIFFERENT AND MORE SERIOUS QUESTION
WOULD ARISE."  AT 66. 

IT IS TRUE THAT ADHERENCE TO PRIOR DECISIONS IN CONSTITUTIONAL
ADJUDICATION IS NOT A BLIND OR INFLEXIBLE RULE.  THIS COURT HAS SHOWN A
READINESS TO CORRECT ITS ERRORS EVEN THOUGH OF LONG STANDING.  STILL,
WHERE SO MANY CASES IN BOTH FEDERAL AND STATE JURISDICTIONS BY SUCH A
CONSTELLATION OF EMINENT JURISTS OVER A CENTURY AND A HALF'S SPAN TEACH
US A PRINCIPLE WHICH IS WITHOUT CONTRADICTION IN OUR CASE LAW, WE
CANNOT OVERRULE IT.  THE STATEMENT OF THE HIGH COURT OF ERRORS AND
APPEALS OF MISSISSIPPI 105 YEARS AGO IN WATSON V. WILLIAMS, SUPRA, IS
AS TRUE AND PERHAPS EVEN MORE URGENT TODAY:  (FN14)    "THE POWER TO
FINE AND IMPRISON FOR CONTEMPT, FROM THE EARLIEST HISTORY OF
JURISPRUDENCE, HAS BEEN REGARDED AS A NECESSARY INCIDENT AND ATTRIBUTE
OF A COURT, WITHOUT WHICH IT COULD NO MORE EXIST THAN WITHOUT A JUDGE. 
IT IS A POWER INHERENT IN ALL COURTS OF RECORD, AND COEXISTING WITH
THEM BY THE WISE PROVISIONS OF THE COMMON LAW.  A COURT WITHOUT THE
POWER EFFECTUALLY TO PROTECT ITSELF AGAINST THE ASSAULTS OF THE
LAWLESS, OR TO ENFORCE ITS ORDERS, JUDGMENTS, OR DECREES AGAINST THE
RECUSANT PARTIES BEFORE IT, WOULD BE A DISGRACE TO THE LEGISLATION, AND
A STIGMA UPON THE AGE WHICH INVENTED IT.  IN THIS COUNTRY, ALL COURTS
DERIVE THEIR AUTHORITY FROM THE PEOPLE, AND HOLD IT IN TRUST FOR THEIR
SECURITY AND BENEFIT.  IN THIS STATE, ALL JUDGES ARE ELECTED BY THE
PEOPLE, AND HOLD THEIR AUTHORITY, IN A DOUBLE SENSE, DIRECTLY FROM
THEM; THE POWER THEY EXERCISE IS BUT THE AUTHORITY OF THE PEOPLE
THEMSELVES, EXERCISED THROUGH COURTS AS THEIR AGENTS.  IT IS THE
AUTHORITY AND LAWS EMANATING FROM THE PEOPLE, WHICH THE JUDGES SIT TO
EXERCISE AND ENFORCE.  CONTEMPTS AGAINST THESE COURTS, IN THE
ADMINISTRATION OF THEIR LAWS, ARE INSULTS OFFERED TO THE AUTHORITY OF
THE PEOPLE THEMSELVES, AND NOT TO THE HUMBLE AGENTS OF THE LAW, WHOM
THEY EMPLOY IN THE CONDUCT OF THEIR GOVERNMENT.  THE POWER TO COMPEL
THE LAWLESS OFFENDER, AGAINST DECENCY AND PROPRIETY, TO RESPECT THE
LAWS OF HIS COUNTRY, AND SUBMIT TO THEIR AUTHORITY (A DUTY TO WHICH THE
GOOD CITIZEN YIELDS HEARTY OBEDIENCE, WITHOUT COMPULSION) MUST EXIST,
OR COURTS AND LAWS OPERATE AT LAST AS A RESTRAINT UPON THE UPRIGHT, WHO
NEED NO RESTRAINT, AND A LICENSE TO THE OFFENDERS, WHOM THEY ARE MADE
TO SUBDUE."  AT 341-342. 

THE QUESTION CERTIFIED TO THE COURT IS THEREFORE ANSWERED IN THE
NEGATIVE. 

FN1  ON JANUARY 21, 1964, GOVERNOR BARNETT'S TERM OF OFFICE EXPIRED
AND LIEUTENANT GOVERNOR JOHNSON BECAME GOVERNOR. 

FN2  "WHERE CHARGES OF CRIMINAL CONTEMPT HAVE BEEN INITIATED IN THIS
COURT OF APPEALS AGAINST TWO INDIVIDUALS, ASSERTING THAT SUCH
INDIVIDUALS WILLFULLY DISOBEYED A TEMPORARY RESTRAINING ORDER OF THE
COURT, WHICH ORDER WAS ENTERED AT THE REQUEST OF THE UNITED STATES,
ACTING AS AMICUS CURIAE PURSUANT TO ITS APPOINTMENT BY AN ORDER OF THE
COURT WHICH GRANTED TO IT, AMONG OTHER RIGHTS, THE RIGHT TO INITIATE
PROCEEDINGS FOR INJUNCTIVE RELIEF, AND THE ACTS CHARGED AS CONSTITUTING
THE ALLEGED DISOBEDIENCE WERE OF A CHARACTER AS TO CONSTITUTE ALSO A
CRIMINAL OFFENSE UNDER AN ACT OF CONGRESS, ARE SUCH PERSONS ENTITLED,
UPON THEIR DEMAND, TO TRIAL BY JURY FOR THE CRIMINAL CONTEMPT WITH
WHICH THEY ARE CHARGED?" 

FN3  SEE NELLES AND KING, CONTEMPT BY PUBLICATION IN THE UNITED
STATES, 28 COL. L. REV. 401, 423-430. 

FN4  18 U.S.C. SEC. 401: 

"POWER OF COURT. 

"A COURT OF THE UNITED STATES SHALL HAVE POWER TO PUNISH BY FINE OR
IMPRISONMENT, AT ITS DISCRETION, SUCH CONTEMPT OF ITS AUTHORITY, AND
NONE OTHER, AS: 

"(1)  MISBEHAVIOR OF ANY PERSON IN ITS PRESENCE OR SO NEAR THERETO AS
TO OBSTRUCT THE ADMINISTRATION OF JUSTICE: 

"(2)  MISBEHAVIOR OF ANY OF ITS OFFICERS IN THEIR OFFICIAL
TRANSACTIONS: 

"(3)  DISOBEDIENCE OR RESISTANCE TO ITS LAWFUL WRIT, PROCESS, ORDER,
RULE, DECREE, OR COMMAND." 

FN5  IN BUSBY V. ELECTRIC UTILITIES EMPLOYEES UNION, 323 U.S. 72, 75
(1944), WE HELD THAT:  "THIS COURT WILL NOT ANSWER A QUESTION WHICH
WILL NOT ARISE IN THE PENDING CONTROVERSY UNLESS ANOTHER ISSUE, NOT YET
RESOLVED BY THE CERTIFYING COURT, IS DECIDED IN A PARTICULAR WAY."  IN
THE INSTANT CASE THE ISSUE OF RIGHT TO JURY TRIAL IS NOT SIMPLY A
HYPOTHETICAL AND WAS SQUARELY PRESENTED TO THE COURT OF APPEALS AFTER
THAT COURT REJECTED, IN THE ORDER OF OCTOBER 19, 1962, THE CONTENTION
THAT IT LACKED JURISDICTION.  WHILE THIS COURT DENIED THE PETITION FOR
WRIT OF CERTIORARI TO REVIEW THAT ORDER, MISSISSIPPI V. MEREDITH, 372
U.S. 916 (1963), AND WHILE THE ISSUE IS NOT BEFORE US NOW, THE COURT
WOULD NOT BE FORECLOSED FROM PASSING ON THE JURISDICTIONAL QUESTION IF
AND WHEN IT IS PROPERLY PRESENTED HERE AFTER THE TRIAL ON THE MERITS. 

FN6  INTERPRETING THE PRECURSOR OF 28 U.S.C. SEC. 1254(3), THIS COURT
SAID IN WARD V. CHAMBERLAIN, 2 BLACK 430, 434-435 (DECEMBER TERM,
1862):  "SUCH CERTIFICATE, AS HAS REPEATEDLY BEEN HELD BY THIS COURT,
BRINGS NOTHING BEFORE THIS COURT FOR ITS CONSIDERATION BUT THE POINTS
OR QUESTIONS CERTIFIED, AS REQUIRED BY THE 6TH SECTION OF THE ACT  ...
.  NOTHING CAN COME BEFORE THIS COURT, UNDER THAT PROVISION, EXCEPT
SUCH SINGLE DEFINITE QUESTIONS AS SHALL ACTUALLY ARISE AND BECOME THE
SUBJECT OF DISAGREEMENT IN THE COURT BELOW, AND BE DULY CERTIFIED HERE
FOR DECISION.  OGLE VS. LEE, (2 CRAN., 33); PERKINS VS.  HART'S EXR.,
(11 WHEA., 237); KENNEDY ET AL. VS. GEORGIA STATE BANK, (8 HOW., P.
611.)  ALL SUGGESTIONS, THEREFORE, RESPECTING ANY SUPPOSED INFORMALITY
IN THE DECREE, OR IRREGULARITIES IN THE PROCEEDINGS OF THE SUIT, ARE
OBVIOUSLY PREMATURE AND OUT OF PLACE, AND MAY WELL BE DISMISSED WITHOUT
FURTHER REMARK; BECAUSE NO SUCH INQUIRIES ARE INVOLVED IN THE POINTS
CERTIFIED, AND BY ALL THE DECISIONS OF THIS COURT MATTERS NOT SO
CERTIFIED ARE NOT BEFORE THE COURT FOR ITS CONSIDERATION, BUT REMAIN IN
THE COURT BELOW TO BE DETERMINED BY THE CIRCUIT JUDGES.  WAYMAN VS.
SOUTHARD, (10 WHEA., 21); SAUNDERS VS.  GOULD, (4 PET., 392.)" 

FN7  THIS IS BUTTRESSED BY AN EARLIER STATEMENT OF THE SPONSOR OF THE
BILL AT 48 CONG. REC. 8778: 

"THE NEXT CRITICISM OF THE FORMER, REJECTED BILL WAS THAT IT PROVIDED
FOR CONTEMPT IN COURTS WHERE THERE WERE NO JURORS.  WE ANSWERED THAT BY
CONFINING THE OPERATION IN THIS BILL TO THE CIRCUIT COURTS, TO THE
COURTS WHERE THERE ARE JURIES, AND WE EXEMPT ITS OPERATION IN THE
COURTS OF APPELLATE JURISDICTION.  WE MET THAT CRITICISM IN THAT WAY. 
THERE HAS BEEN NONE THAT I KNOW OF OR LITTLE, IF ANY, COMPLAINT MADE
AGAINST ABUSE OF THE PROCESS OF CONTEMPT BY APPELLATE COURTS.  IT HAS
BEEN IN THE DISTRICT COURTS, IN THE CIRCUIT COURTS, IN THE COURTS OF
FIRST INSTANCE, WHERE THIS ABUSE HAS OCCURRED, AND THIS BILL LIMITS IT
IN EFFECT TO THE OPERATION OF THOSE COURTS OF THE FIRST INSTANCE WHERE
THE ABUSES HAVE OCCURRED AND DO NOW OCCUR." 

SEE ALSO STATEMENTS BY TWO MEMBERS OF THE HOUSE JUDICIARY COMMITTEE,
REPRESENTATIVE FLOYD AT 48 CONG. REC. 8780 AND REPRESENTATIVE DAVIS AT
48 CONG. REC. APP. 314.  SEE ALSO, S. REP. NO. 698, 63D CONG., 2D
SESS., P. 18. 

FN8  OUR DISPOSITION OF THE CERTIFIED QUESTION MAKES IT UNNECESSARY
FOR US TO REACH THE ISSUE WHETHER THE ORDERS ALLEGEDLY VIOLATED WERE
"ENTERED IN ANY SUIT OR ACTION BROUGHT OR PROSECUTED IN THE NAME OF, OR
ON BEHALF OF, THE UNITED STATES," SECS. 402, 3691. 

FN9  U.S. CONST., ART. III, SEC. 2, CL. 3; AMEND. VI.  CONTEMNERS
ALSO CLAIM UNDER AMENDMENTS IX AND X. 

FN10  1 STAT. 83. 

FN11  STATUTES AND CASES DEALING WITH LIMITATIONS ON SUMMARY POWER TO
PUNISH FOR CONTEMPT IN THE ORIGINAL 13 STATES HAVE BEEN COMPILED IN AN
APPENDIX, WHICH FOLLOWS THIS OPINION. 

FN12  UNITED STATES V. HUDSON & GOODWIN, 7 CRANCH 32 (1812); ANDERSON
V. DUNN, 6 WHEAT.  204 (1821); EX PARTE KEARNEY, 7 WHEAT.  38 (1822);
EX PARTE ROBINSON, 19 WALL.  505 (OCTOBER TERM 1873); NEW ORLEANS V.
STEAMSHIP CO., 20 WALL.  387 (OCTOBER TERM, 1874); IN RE CHILES, 22
WALL.  157 (OCTOBER TERM, 1874); EX PARTE TERRY, 128 U.S. 289 (1888);
IN RE SAVIN, 131 U.S. 267 (1889); IN RE CUDDY, 131 U.S. 280 (1889);
EILENBECKER V. DISTRICT COURT, 134 U.S. 31 (1890); IN RE SWAN, 150 U.S.
637 (1893); INTERSTATE COMMERCE COMM'N V. BRIMSON, 154 U.S. 447 (1894);
IN RE DEBS, 158 U.S. 564 (1895); BROWN V. WALKER, 161 U.S. 591 (1896);
IN RE LENNON, 166 U.S. 548 (1897); WILSON V. NORTH CAROLINA, 169 U.S.
586 (1898); IN RE WATTS AND SACHS, 190 U.S. 1 (1903); BESSETTE V.
CONKEY CO., 194 U.S. 324 (1904); NELSON V. UNITED STATES, 201 U.S. 92
(1906); UNITED STATES V. SHIPP, 203 U.S. 563 (1906); EX PARTE YOUNG,
209 U.S. 123 (1908); GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418
(1911); BAGLIN V. CUSENIER CO., 221 U.S. 580 (1911); GOMPERS V. UNITED
STATES, 233 U.S. 604 (1914); TOLEDO NEWSPAPER CO. V. UNITED STATES, 247
U.S. 402 (1918); EX PARTE HUDGINGS, 249 U.S. 378 (1919); BLAIR V.
UNITED STATES, 250 U.S. 273 (1919); CRAIG V. HECHT, 263 U.S. 255
(1923); MICHAELSON V. UNITED STATES, 266 U.S. 42 (1924); COOKE V.
UNITED STATES, 267 U.S. 517 (1925); MCGRAIN V. DAUGHERTY, 273 U.S. 135,
157 (1927); BROWN V. UNITED STATES, 276 U.S. 134 (1928); SINCLAIR V.
UNITED STATES, 279 U.S. 749 (1929); BLACKMER V. UNITED STATES, 284 U.S.
421 (1932); CLARK V. UNITED STATES, 289 U.S. 1 (1933); NYE V. UNITED
STATES, 313 U.S. 33 (1941); PENDERGAST V. UNITED STATES, 317 U.S. 412
(1943); UNITED STATES V. WHITE, 322 U.S. 694 (1944); IN RE MICHAEL, 326
U.S. 224 (1945); UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258
(1947); IN RE OLIVER, 333 U.S. 257, 274 (1948); FISHER V. PACE, 336
U.S. 155 (1949); ROGERS V. UNITED STATES, 340 U.S. 367 (1951); HOFFMAN
V. UNITED STATES, 341 U.S. 479 (1951); SACHER V. UNITED STATES, 343
U.S. 1 (1952); OFFUTT V. UNITED STATES, 348 U.S. 11 (1954); CAMMER V.
UNITED STATES, 350 U.S. 399 (1956); NILVA V. UNITED STATES, 352 U.S.
385 (1957); YATES V. UNITED STATES, 355 U.S. 66 (1957); GREEN V. UNITED
STATES, 356 U.S. 165 (1958); BROWN V. UNITED STATES, 359 U.S. 41
(1959); LEVINE V. UNITED STATES, 362 U.S. 610 (1960); PIEMONTE V.
UNITED STATES, 367 U.S. 556 (1961); UNGAR V. SARAFITE, ANTE, AT 575
(1964). 

HOWEVER, OUR CASES HAVE INDICATED THAT, IRRESPECTIVE OF THE SEVERITY
OF THE OFFENSE, THE SEVERITY OF THE PENALTY IMPOSED, A MATTER NOT
RAISED IN THIS CERTIFICATION, MIGHT ENTITLE A DEFENDANT TO THE BENEFIT
OF A JURY TRIAL.  SEE DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617
(1937).  THERE MR. JUSTICE STONE, LATER CHIEF JUSTICE, CITING MANY
CASES, SAID THAT "COMMONLY ACCEPTED VIEWS OF THE SEVERITY OF PUNISHMENT
BY IMPRISONMENT MAY BECOME SO MODIFIED THAT A PENALTY ONCE THOUGHT TO
BE MILD MAY COME TO BE REGARDED AS SO HARSH AS TO CALL FOR THE JURY
TRIAL, WHICH THE CONSTITUTION PRESCRIBES, IN SOME CASES WHICH WERE
TRIABLE WITHOUT A JURY WHEN THE CONSTITUTION WAS ADOPTED."  AT 627.  IN
VIEW OF THE IMPENDING CONTEMPT HEARING, EFFECTIVE ADMINISTRATION OF
JUSTICE REQUIRES THAT THIS DICTUM BE ADDED:  SOME MEMBERS OF THE COURT
ARE OF THE VIEW THAT, WITHOUT REGARD TO THE SERIOUSNESS OF THE OFFENSE,
PUNISHMENT BY SUMMARY TRIAL WITHOUT A JURY WOULD BE CONSTITUTIONALLY
LIMITED TO THAT PENALTY PROVIDED FOR PETTY OFFENSES. 

FN13  THE CONSTITUTION OF MISSISSIPPI, LIKE THAT OF THE UNITED
STATES, ALSO ASSURES THE RIGHT OF TRIAL BY JURY IN CRIMINAL CASES.  "IN
ALL CRIMINAL PROSECUTIONS THE ACCUSED SHALL HAVE A RIGHT TO ...  TRIAL
BY AN IMPARTIAL JURY OF THE COUNTY WHERE THE OFFENSE WAS COMMITTED  ...
."  MISS.  CONST., ART. III, SEC. 26.  "THE RIGHT OF TRIAL BY JURY
SHALL REMAIN INVIOLATE  ...  ."  MISS.  CONST., ART. III, SEC. 31. 

FN14  THE FACT THAT WATSON WAS A CASE OF CIVIL CONTEMPT IS NOT
RELEVANT, SINCE ITS RATIONALE AND LANGUAGE ARE BROADLY APPLICABLE TO
CONTEMPT CASES IN GENERAL.  FURTHER, WATSON HAS RECENTLY BEEN CITED
WITH APPROVAL IN A MISSISSIPPI CRIMINAL CONTEMPT CASE, YOUNG V. STATE,
SUPRA, WHERE THE MISSISSIPPI SUPREME COURT REAFFIRMED THAT THERE IS NO
RIGHT TO JURY TRIAL IN CASES OF CRIMINAL CONTEMPT.  WATSON HAS ALSO
BEEN CITED BY THIS COURT AS AUTHORITY ON CRIMINAL CONTEMPT.  IN RE
DEBS, 158 U.S. 564, 595 (1895). 

        APPENDIX TO OPINION OF THE COURT. 

THIS APPENDIX CONTAINS STATUTES AND CASES RELEVANT TO THE PUNISHMENTS
FOR CONTEMPT IMPOSED BY COLONIAL COURTS.  ALTHOUGH THE AUTHORITY CITED
HERE IS EXTENSIVE, IT DOES NOT PURPORT TO BE EXHAUSTIVE.  RESEARCH IN
THIS PERIOD OF HISTORY IS HAMPERED BY THE FACT THAT COMPLETE REPORTS OF
APPELLATE DECISIONS IN MOST JURISDICTIONS WERE NOT AVAILABLE UNTIL THE
NINETEENTH CENTURY.  REPORTS OF THE COLONIAL TRIAL COURTS ARE EVEN MORE
SPARSE, AND THIS HAS PARTICULAR IMPORTANCE IN OUR STUDY, SINCE CONTEMPT
CITATIONS WERE USUALLY EITHER NOT APPEALABLE OR NOT APPEALED. 

NUMEROUS OBSERVATIONS COULD BE MADE CONCERNING WHAT IS SET FORTH
HERE.  (FN1)  FOR OUR PRESENT PURPOSES, HOWEVER, WE NEED ONLY NOTE THAT
WE FIND NO BASIS FOR A DETERMINATION THAT, AT THE TIME THE CONSTITUTION
WAS ADOPTED, CONTEMPT WAS GENERALLY REGARDED AS NOT EXTENDING TO CASES
OF SERIOUS MISCONDUCT.  RATHER, IT APPEARS THAT THE LIMITATIONS WHICH
DID EXIST WERE QUITE NARROW IN SCOPE, BEING APPLICABLE ONLY TO A
SPECIFIC CONTEMPT (FN2) OR TO A PARTICULAR TYPE OF COURT. 

                         CONNECTICUT. 

THE CODE OF 1650, A COMPILATION OF THE EARLIEST LAWS AND ORDERS OF THE
GENERAL COURT OF CONNECTICUT, PROVIDED "THAT WHOSOEVER DOTH DISSORDERLY
SPEAKE PRIVATELY, DURING THE SITTING OF THE COURTE, WITH HIS NEIGHBOUR"
SHOULD PAY 12 PENCE FINE, "IF THE COURTE SO THINKE MEETT," AND THAT
WHOSOEVER REVEALED SECRETS OF THE GENERAL COURT SHOULD FORFEIT 10
POUNDS "AND BEE OTHERWISE DEALT WITHALL, AT THE DISCRETION OF THE
COURTE  ...  ."  CODE OF 1650 (1822 ED.), AT 40.  THE SAME CODE ALSO
DECREED "THAT WHOSOEVER SHALL  ...  DEFAME ANY COURTE OF JUSTICE, OR
THE SENTENCES AND PROCEEDINGS OF THE SAME, OR ANY OF THE MAGISTRATES OR
JUDGES OF ANY SUCH COURTE, IN RESPECT OF ANY ACT OR SENTENCE THEREIN
PASSED, AND BEING THEREOF LAWFULLY CONVICTED IN ANY GENERALL COURTE, OR
COURTE OF MAGISTRATES, SHALL BEE PUNNISHED FOR THE SAME, BY FYNE,
IMPRISONMENT, DISFRANCHISEMENT, OR BANNISHMENT, AS THE QUALITY AND
MEASURE OF THE OFFENCE SHALL DESERVE."  ID., AT 69.  THIS PROVISION WAS
CARRIED FORWARD THROUGH THE TIME OF THE ADOPTION OF THE CONSTITUTION. 
SEE CONN. LAWS OF 1673 (1865 ED.), AT 41, AND CONN. ACTS AND LAWS (1796
ED.), AT 142. 

AN "ACT CONCERNING DELINQUENTS" PROVIDED THAT "IF ANY PERSON OR
PERSONS UPON HIS OR THEIR EXAMINATION OR TRIAL FOR DELINQUENCY, OR ANY
OTHER PERSON NOT UNDER EXAMINATION OR TRIAL AS AFORESAID, IN THE
PRESENCE OF ANY COURT, SHALL EITHER IN WORDS OR ACTIONS BEHAVE
CONTEMPTUOUSLY OR DISORDERLY, IT SHALL BE IN THE POWER OF THE COURT,
ASSISTANT, OR JUSTICE TO INFLICT SUCH PUNISHMENT UPON HIM OR THEM AS
THEY SHALL JUDGE MOST SUITABLE TO THE NATURE OF THE OFFENCE.  PROVIDED,
THAT NO SINGLE MINISTER OF JUSTICE (JUSTICE OF THE PEACE, WHOSE
CRIMINAL JURISDICTION WAS LIMITED TO CASES IN WHICH "THE PENALTY DOES
NOT EXCEED THE SUM OF SEVEN DOLLARS") SHALL INFLICT ANY OTHER
PUNISHMENT UPON SUCH OFFENDERS THAN IMPRISONMENT, BINDING TO THE PEACE
OR GOOD BEHAVIOUR TO THE NEXT COUNTY COURT, PUTTING THEM IN THE STOCKS,
THERE TO SIT NOT EXCEEDING TWO HOURS, OR IMPOSING A FINE, NOT EXCEEDING
FIVE DOLLARS."  CONN. ACTS AND LAWS (1796 ED.), AT 143.    THE FIRST
CONNECTICUT STATUTE WE HAVE BEEN ABLE TO FIND WHICH LIMITED THE POWER
OF ALL COURTS TO INFLICT PUNISHMENT SUMMARILY IS CITED IN AN 1824
EDITION OF CONNECTICUT STATUTES:  "IF ANY PERSON, IN THE PRESENCE OF
ANY COURT, SHALL, EITHER BY WORDS OR ACTIONS, BEHAVE CONTEMPTUOUSLY OR
DISORDERLY, IT SHALL BE IN THE POWER OF THE COURT TO INFLICT SUCH
PUNISHMENT UPON HIM, BY FINE OR IMPRISONMENT, AS SHALL BE JUDGED
REASONABLE: PROVIDED, HOWEVER, THAT NO SINGLE MINISTER OF JUSTICE SHALL
INFLICT A GREATER FINE THAN SEVEN DOLLARS, NOR A LONGER TERM OF
IMPRISONMENT THAN ONE MONTH; AND NO OTHER COURT SHALL INFLICT A GREATER
FINE THAN ONE HUNDRED DOLLARS, NOR A LONGER TERM OF IMPRISONMENT THAN
SIX MONTHS."  CONN. PUB. STAT. LAWS, 1821 (1824 ED.), AT 118-119.  THIS
STATUTE APPLIED ONLY TO ACTS OF CONTEMPT COMMITTED IN THE PRESENCE OF
THE COURT AND LEFT "ALL OTHER CASES OF CONTEMPT TO BE ASCERTAINED AND
PUNISHED ACCORDING TO THE COURSE OF THE COMMON LAW."  HUNTINGTON V.
MCMAHON, 48 CONN. 174, 196 (MAY TERM, 1880).  ACCORD, ROGERS MFG. CO.
V. ROGERS, 38 CONN. 121, 123 (FEBRUARY TERM, 1871). 

THE SAME LAWS ALSO MADE IT A CONTEMPT, PUNISHABLE SUMMARILY BY
COMMITMENT AND FINE OF $200, TO REFUSE TO PERFORM OR ACCEPT SERVICE OF
A WRIT OF HABEAS CORPUS.  CONN. PUB.  STAT. LAWS, 1821 (1824 ED.), AT
219-220. 

RECORDS OF CASES IN THE PARTICULAR COURT BETWEEN 1639 AND 1663 REVEAL
SEVERAL SUMMARY CONTEMPT PROCEEDINGS:  IN 1639, THOMAS GRIDLEY WAS
"CENSURED TO BE WHIPT ATT HARTFORD AND BOUND TO HIS GOOD BEHAVIOR" FOR,
INTER ALIA, USING "CONTEMPTEOUS WORDS AGAINST THE ORDERS OF COURT  ...
."  RECORDS OF THE PARTICULAR COURT OF THE COLONY OF CONNECTICUT, 1639
1663, AT 5.  ENOCH BUCK WAS FINED 10 SHILLINGS "FOR IRREGULAR SPEECHES
IN COURTE" IN 1648.  ID., AT 60.  IN 1654, WILL TAYLOR WAS COMMITTED TO
PRISON FOR AN UNSPECIFIED LENGTH OF TIME FOR HIS "CONTEMTUOUS CARRIAGE
IN THE COURTE ...  ."  ID., AT 128.  JOHN SADLER WAS ORDERED IMPRISONED
FOR A DAY AND FINED 40 SHILLINGS IN 1655 FOR "CONTEMPTUOUS CARRAGE
AGAINST THE COURTE AND MAGISTRATES  ...  ."  ID., AT 152.  IN 1657,
BOTH PARTIES IN A CASE WERE FINED 10 SHILLINGS FOR DISORDERLY CARRIAGE
IN COURT.  ID., AT 187.  IN 1663, FOR, INTER ALIA, "DEFAMEING THE
SENTENC OF THE COURT AND ONE OF THE MEMBERS THEREOF," EDWARD BARTLET
WAS ORDERED TO PRISON FOR ABOUT 10 DAYS AND MADE TO GIVE 10 POUNDS
SECURITY FOR HIS GOOD BEHAVIOR.  ID., AT 269.  CONNECTICUT COLONY
PARTICULAR COURT RECORDS ALSO INDICATE VARIOUS FINES AND FORFEITURES,
FROM TWO SHILLINGS, SIX PENCE, TO FOUR POUNDS, IMPOSED ON NONAPPEARING
PARTIES AND JURORS BETWEEN 1647 AND 1654.  (E.G., THOMAS SHERWOOD FINED
40 SHILLINGS "FOR HIS CONTEMPTE IN NOT APPEAREING ATT COURT UPPON
SUMMONS," ID., AT 47.) 

IN 1796, ZEPHANIAH SWIFT, CHIEF JUSTICE OF THE CONNECTICUT SUPERIOR
COURT, WROTE OF CONTEMPT: "BUT THO ALL COURTS BUT ASSISTANTS AND
JUSTICES OF THE PEACE, HAVE AN UNLIMITTED DISCRETIONARY POWER, YET THIS
CANNOT BE DEEMED TO AUTHORIZE THEM TO INFLICT CAPITAL PUNISHMENT.  IT
CAN BE SUPPOSED TO EXTEND ONLY TO FINE, IMPRISONMENT, OR SUCH CORPORAL
PUNISHMENT AS MAY BE SUITED TO THE NATURE OF THE OFFENCE, AND ACCORDING
TO THE PRINCIPLES OF THE COMMON LAW."  II SWIFT, A SYSTEM OF THE LAWS
OF CONNECTICUT (1796), AT 374. 

IN 1823, SWIFT ADDED:  "WHEN COURTS PUNISH FOR CONTEMPTS, COMMITTED
IN THEIR PRESENCE, THEY MUST INFLICT A DEFINITE FINE, OR IMPRISON FOR A
CERTAIN TIME IN THE MANNER PRESCRIBED BY THE STATUTE: BUT WHERE THEY
PUNISH FOR CONTEMPTS AT COMMON LAW, OR NOT COMMITTED IN THEIR PRESENCE
THEY MAY IMPRISON TILL THE FURTHER ORDER OF THE COURT  ...  ."  II
SWIFT, A DIGEST OF THE LAWS OF CONNECTICUT (1823), AT 359. 

                    DELAWARE. 

WE WERE UNABLE TO FIND ANY DELAWARE COLONIAL STATUTES DEALING
GENERALLY WITH CONTEMPT.  TWO STATUTES, APPARENTLY PASSED DURING THE
EARLY PART OF THE EIGHTEENTH CENTURY, PROVIDED MAXIMUM PENALTIES FOR
CERTAIN TYPES OF OFFENSES:  JURORS WHO REFUSED TO ATTEND COULD BE
SUMMARILY FINED UP TO 20 SHILLINGS; AND ONE WHO SPOKE IN DEROGATION OF
A COURT'S JUDGMENT OR COMMITTED ANY RUDENESS OR MISDEMEANOR IN A COURT
WHILE THE COURT WAS IN SESSION COULD BE FINED UP TO FIVE POUNDS.  1
DEL. LAWS (1797 ED.), AT 117, 120.  A 1739 OR 1740 "ACT AGAINST
DRUNKENNESS, AND BLASPHEMY" AUTHORIZED A MAXIMUM FINE OF FIVE POUNDS
FOR ONE CONVICTED (FN3) OF USING, UPON ARREST BY COURT ORDER, "ABUSIVE,
REVILING OR THREATNING SPEECHES AGAINST  ...  ANY COURT  ...  ."  ID.,
AT 174.  AN 1852 ACT PROVIDED THAT JUDGES OF THE SUPERIOR COURT COULD
PUNISH FOR CONTEMPT AS FULLY "AS THE JUSTICES OF THE KING'S BENCH,
COMMON PLEAS, AND EXCHEQUER IN ENGLAND,  ...  MAY OR CAN DO."  DEL.
REV. STAT.  (1852 ED.), AT 317. 

IN 1818, THE KENT SUPREME COURT SAID THAT "FOR A CONTEMPT COMMITTED
IN THE PRESENCE OF A JUSTICE OF THE PEACE, HE MAY EITHER IMPRISON THE
OFFENDER FOR A DEFINITE PERIOD OR REQUIRE SURETIES FOR HIS GOOD
BEHAVIOR."  PATTERSON V. BLACKISTON, 1 DEL. CASES, 1792-1830
(BOORSTIN), AT 571, 573. 

                             GEORGIA. 

OUR RESEARCH HAS UNCOVERED NO GEORGIA COLONIAL STATUTES DEALING WITH
CONTEMPT.  AN ENACTMENT IN 1799 PROVIDED FOR THE FINE OF WITNESSES AND
JURORS WHO NEGLECTED OR REFUSED TO APPEAR.  SECTION XX PROVIDED FOR
ATTACHMENT OF WITNESSES AND A FINE NOT EXCEEDING $300.  SECTION XLIV
PROVIDED FOR A FINE OF $40 FOR GRAND JURORS AND $20 FOR PETIT JURORS. 
GA. DIGEST OF LAWS (1822 ED.), AT 205, 210, 215. 

AN 1801 STATUTE SET A FINE OF $10 AS THE AMOUNT OF PUNISHMENT THAT
COULD BE IMPOSED UPON A DEFAULTING WITNESS BY A JUSTICE OF THE PEACE. 
GA. LAWS, 1801-1810 (1812 ED.), AT 17.  AN 1811 STATUTE MADE MORE
SPECIFIC MENTION OF THE CONTEMPT POWER OF THE JUSTICES OF THE PEACE,
PROVIDING THAT THESE OFFICERS COULD FINE OR IMPRISON FOR CONTEMPT, BUT
NOT EXCEEDING $2 OR TWO DAYS.  GA. LAWS, 1811-1819 (1821 ED.), AT 378. 

THE EARLIEST REPORTED GEORGIA CONTEMPT CASE IS STATE V. NOEL,
CHARLTON'S REPORTS (1805-1810) 43 (1806).  THERE THE MAYOR AND MARSHAL
OF THE CITY OF SAVANNAH WERE FINED $50 AND $10 RESPECTIVELY FOR FAILING
TO COMPLY WITH AN ORDER OF THE SUPERIOR COURT DIRECTING THEM TO SUSPEND
CERTAIN CITY COUNCIL PROCEEDINGS.  IN 1807 THE SUPERIOR COURT SAID IN
STATE V. WHITE, CHARLTON'S REPORTS (1805-1810) 123, 136 (1807), THAT
THE INFERIOR COURTS OF RECORD HAD THE POWER TO "INFLICT PUNISHMENTS AT
THE DISCRETION OF THE COURT, FOR ALL CONTEMPTS OF THEIR AUTHORITY."  NO
SPECIFIC PUNISHMENT WAS INDICATED IN THAT CASE.  IN STATE V.
HELVENSTON, CHARLTON'S REPORTS (1811-1837) 48 (1820), SEVERAL JURORS
WERE FINED $5 EACH FOR HAVING TALKED WITH PERSONS NOT OFFICERS OF THE
COURT. 

                          MARYLAND. 

IT APPEARS THAT IN COLONIAL MARYLAND THERE WAS BUT ONE STATUTORY
ENACTMENT DIRECTLY CONCERNING CONTEMPTS AND THIS ACT WAS APPLICABLE
ONLY TO THE COURT OF CHANCERY.  THIS WAS A 1785 ACT PROVIDING THAT "IN
ORDER TO ENFORCE OBEDIENCE TO THE PROCESS, RULES AND ORDERS, OF THE
CHANCERY COURT, IN ALL CASES WHERE ANY PARTY OR PERSON SHALL BE IN
CONTEMPT FOR DISOBEDIENCE, NON-PERFORMANCE OR NON-OBSERVANCE, OF ANY
PROCESS, RULE OR ORDER, OF THE CHANCELLOR OR CHANCERY COURT, OR FOR ANY
OTHER MATTER  ...  WHEREIN A CONTEMPT  ... MAY BE INCURRED, SUCH PARTY
OR PERSON SHALL  ...  PAY  ...  A SUM NOT EXCEEDING TEN POUNDS CURRENT
MONEY  ...  AND MAY STAND COMMITTED  ...  UNTIL THE SAID PROCESS, RULE
OR ORDER, SHALL BE FULLY PERFORMED  ...  AND UNTIL THE SAID FINE  ...
SHALL BE FULLY PAID  ...  ."  II KILTY'S MD. LAWS, 1800, C. LXXII, SEC.
XXII. 

THREE OTHER COLONIAL MARYLAND ACTS CONCERNED ONLY THE PUNISHMENTS OF
JURORS AND WITNESSES WHO FAILED TO APPEAR AS SUMMONED AND THE
ENFORCEMENT OF THE RULES OF COURT.  IT IS NOT CLEAR WHETHER THESE WERE
TREATED AS CONTEMPTS.  A LAW ENACTED IN 1715 PROVIDED THAT ANY PERSON
DULY SERVED WITH PROCESS TO APPEAR AS A WITNESS WHO SHALL DEFAULT AND
FAIL TO APPEAR, "SHALL BE FINED BY THE JUSTICES OF THE PROVINCIAL COURT
ONE THOUSAND POUNDS OF TOBACCO  ...  " OR BY THE COUNTY COURT, FIVE
HUNDRED POUNDS OF TOBACCO.  I DORSEY'S MD. LAWS, 1692-1839 (1840 ED.),
AT 20.  ANOTHER 1715 STATUTE PROVIDED THAT THE JUDGES OF THE PROVINCIAL
AND COUNTY COURTS IN MARYLAND COULD "MAKE SUCH RULES AND ORDERS FROM
TIME TO TIME, FOR THE WELL GOVERNING AND REGULATING THEIR SAID COURTS
...  AS TO THEM IN THEIR DISCRETION SHALL SEEM MEET  ...  AND SHALL
ENFORCE THESE RULES WITH SUCH FINES AND FORFEITURES, AS THEY SHALL
THINK FIT, NOT EXCEEDING ONE THOUSAND POUNDS OF TOBACCO IN THE
PROVINCIAL COURT, AND FIVE HUNDRED POUNDS OF TOBACCO IN THE COUNTY
COURT  ...  ."  I DORSEY'S MD. LAWS, 1692-1839 (1840 ED.), AT 24. 

IN 1782 THE FINES TO BE IMPOSED ON WITNESSES AND JURORS WHO FAILED TO
APPEAR WERE ALTERED.  THE ACT PROVIDED THAT "IN ALL CASES IN WHICH
JURORS OR WITNESSES SHALL BE SUMMONED TO APPEAR AT THE GENERAL COURT,
AND SHALL, WITHOUT SUFFICIENT EXCUSE, NEGLECT TO APPEAR, THE GENERAL
COURT MAY FINE ...  NOT EXCEEDING THIRTY-FIVE POUNDS CURRENT MONEY." 
THE SAME PROVISION APPLIED TO THE COUNTY COURTS, BUT THERE THE FINE WAS
LIMITED TO 20 POUNDS.  I KILTY'S MD. LAWS, 1799, C. XL. 

THE ONLY REPORTED MARYLAND CASE AROUND THE TIME OF THE ADOPTION OF
THE CONSTITUTION IS STATE V. STONE, 3 HARRIS AND MCHENRY 115 (1792). 
THERE THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE CHARLES COUNTY
COURT WERE EACH FINED 20 SHILLINGS AND COSTS BY THE GENERAL COURT FOR
REFUSING TO RECOGNIZE A WRIT OF CERTIORARI WHICH HAD BEEN DIRECTED TO
THEM. 

THE ARCHIVES OF MARYLAND REPORT SEVERAL CONTEMPT CITATIONS BY THE
PROVINCIAL AND COUNTY COURTS FROM 1658 TO 1675.  THE PROVINCIAL COURT
FINED ATTORNEY JOHN ROUSBY 100 POUNDS OF TOBACCO FOR VIOLATION OF A
COURT ORDER THAT ATTORNEYS MUST SPEAK IN THEIR PROPER TURNS.  ARCH. 
MD. LXV, 585 (1675).  ROUSBY AND TWO OTHER ATTORNEYS WERE ALSO FINED
400 POUNDS OF TOBACCO EACH FOR FAILING TO APPEAR AT THE PROVINCIAL
COURT AND THUS CAUSING THEIR CLIENTS TO SUFFER NONSUITS.  ARCH.  MD.
LXV, 383 (1674).  AND ANOTHER ATTORNEY, WHO ADMITTED THAT HE HAD
FALSIFIED A WRIT OF THE PROVINCIAL COURT, WAS SUMMARILY DISBARRED FROM
PRACTICE.  ARCH.  MD. LXV, 50 (1672). 

THE COUNTY COURTS IMPOSED PUNISHMENTS FOR MISBEHAVIOR IN THE PRESENCE
OF THE COURT: 500 POUNDS OF TOBACCO FOR THE USE OF ABUSIVE LANGUAGE IN
COURT, ARCH.  MD. LIV, 566 (1673); 300 POUNDS OF TOBACCO FOR WEARING A
HAT IN THE COURT'S PRESENCE, ARCH.  MD. LIV, 146 (1658); 10 POUNDS OF
TOBACCO FOR TAKING THE NAME OF GOD IN VAIN BEFORE THE COURT, ARCH.  MD.
LIII, 84 (1660); AND 300 POUNDS OF TOBACCO FOR USING INSOLENT LANGUAGE
BEFORE THE COURT, ARCH.  MD. LIV, 9 (1652).  BETWEEN 1671 AND 1674 THE
PROVINCIAL COURT CITED 23 PERSONS FOR FAILURE TO APPEAR AS JURORS OR
WITNESSES IN RESPONSE TO PROPER SUMMONSES.  EACH WAS FINED 500 POUNDS
OF TOBACCO.  ARCH.  MD. LXV, 18, 21, 23, 25, 29, 31, 32, 40, 45, 141,
203, 246, 314. 

        MASSACHUSETTS. 

THE MASSACHUSETTS BAY COLONY AND PLYMOUTH COLONY ENACTED MANY EARLY
STATUTES RELATING TO CONTEMPT.   IN 1641 THE GENERAL COURT (FN4)
DECREED THAT NO ONE IN MASSACHUSETTS SHOULD BE IMPRISONED BEFORE
SENTENCE IF HE COULD PUT UP BAIL, EXCEPT "IN CRIMES CAPITAL, AND
CONTEMPT IN OPEN COURT, AND IN SUCH CASES WHERE SOME EXPRESSE ACT OF
COURT DOTH ALLOW IT."  MASS. LAWS AND LIBERTIES (1648 ED.), AT 28. 
PRIOR TO 1648 ANOTHER GENERAL COURT ORDER PROVIDED "FINE, IMPRISONMENT,
DISFRANCHISEMENT OR BANNISHMENT" FOR ONE "LAWFULLY CONVICT" (FN5) IN
ANY GENERAL COURT OR COURT OF ASSISTANTS OF DEFAMING ANY COURT OF
JUSTICE, ANY COURT ORDER, OR ANY MAGISTRATE OR JUDGE WITH RESPECT TO A
SENTENCE IMPOSED.  ID., AT 36.  IN 1665 THE GENERAL COURT MADE A LAW
PERMITTING CORPORAL PUNISHMENT FOR THE CONTEMPT OF REFUSING TO PAY THE
FINE IMPOSED FOR "PROPHANATION OF THE SABBATH, CONTEMPT OR NEGLECT OF
GODS PUBLICK WORSHIP, REPROACHING OF THE LAWS, AND AUTHORITY HERE
ESTABLISHED  ...  ."  MASS. COLONIAL LAWS, 1660 (1889 ED.), AT 232. 

PLYMOUTH COLONY LAWS PROVIDED THAT THE COURT OF MAGISTRATES COULD
PUNISH "BY FINE, IMPRISONMENT, BINDING TO THE PEACE OR GOOD BEHAVIOUR"
FOR DISTURBING THE PEACE OR DEFAMING ANY COURT OF JUSTICE OR JUDGE
THEREOF WITH RESPECT TO ANY ACT OR SENTENCE.  COMPACT WITH THE CHARTER
AND LAWS OF NEW PLYMOUTH (1836 ED.), AT 249.  FINES WERE PROVIDED FOR
GRAND JURORS WHO REFUSED TO SERVE (40 SHILLINGS), GRAND JURORS WHO
FAILED TO APPEAR (10 SHILLINGS), AND NONAPPEARING WITNESSES (20
SHILLINGS).  ID., AT 263, 192 (ACTS OF 1671, 1681). 

A 1692 MASSACHUSETTS ACT PROVIDED FINES FOR CURSING IN THE HEARING OF
A JUSTICE OF THE PEACE - FIVE SHILLINGS FOR THE FIRST CURSE (OR TWO
HOURS IN THE STOCKS IF UNABLE TO PAY) AND 12 PENCE FOR EACH CURSE
THEREAFTER (OR THREE HOURS IN THE STOCKS).  MASS. BAY CHARTER (1726
ED.), AT 9.  VARIOUS FINES WERE ESTABLISHED FOR NONAPPEARING JURORS (20
SHILLINGS BEFORE 1698, 40 SHILLINGS UNTIL 1711, FOUR TO SIX POUNDS
UNTIL 1784, 40 SHILLINGS OR FIVE POUNDS AS OF 1784), (FN6) NONAPPEARING
WITNESSES (40 SHILLINGS), (FN7) AND DEFENDANTS WHO FAILED TO APPEAR
BEFORE A JUSTICE OF THE PEACE (10 SHILLINGS).  (FN8)    MANY EARLY
CONTEMPT CASES ARE CONTAINED IN THE RECORDS OF THE COURT OF ASSISTANTS
(FN9) OF MASSACHUSETTS BAY COLONY, 1630-1692, AND IN SEVERAL OF THESE,
SEVERE SUMMARY PUNISHMENTS WERE INFLICTED.  FOR EXAMPLE, IN 1675
MAURICE BRETT "FOR HIS CONTEMPTUOUS CARRIAGE CONFRONTING THE SENTENC OF
THIS COURT" WAS SENTENCED TO STAND FOR AN HOUR WITH HIS EAR NAILED TO A
PILLORY.  AT THE END OF THE HOUR, THE EAR WAS TO BE CUT OFF AND HE WAS
TO PAY 20 SHILLINGS OR BE GIVEN 10 LASHES.  I RECORDS OF THE COURT OF
ASSISTANTS, AT 57.  ALSO:  IN 1643, ELIZABETH VANE WAS ORDERED
COMMITTED AT THE PLEASURE OF THE COURT FOR ABUSING ONE OF THE
MAGISTRATES (SHE WAS RELEASED UPON HUMBLE PETITION AND ACKNOWLEDGMENT),
II RECORDS OF THE COURT OF ASSISTANTS, AT 132; IN 1637 JOHN GREENE WAS
FINED 20 POUNDS, COMMITTED UNTIL THE FINE WAS PAID, AND TOLD NOT TO
COME INTO THIS JURISDICTION AGAIN "UPON PAINE OF FINE, OR IMPRISONMENT
AT THE PLEASURE OF THE COURTE FOR SPEAKING CONTEMPTUOUSLY OF THE
MAGISTRATES," ID., AT 71; IN 1633 CAPTAIN JOHN STONE WAS FINED 100
POUNDS AND PROHIBITED FROM RETURNING TO THE COLONY WITHOUT LEAVE FROM
THE GOVERNMENT "UNDER THE PENALTY OF DEATH" FOR ABUSING AN OFFICER OF
THE COURT, ASSAULTING HIM AND CALLING HIM "A JUST ASSE," ID., AT 35; IN
1630 OR 1631 THOMAS FOXE WAS ORDERED WHIPPED FOR SAYING THAT THE COURT
ACTED IN A CASE "AS IF THEY HADD TAKEN SOME BRIBE," ID., AT 12; IN 1634
JOHN LEE WAS ORDERED WHIPPED AND FINED "FOR CALLING  ...  A COURT
OFFICER FALSE-HEARTED KNAVE & HARD-HEARTED KNAVE HEAVY FRIEND," ID., AT
43; IN 1637 OR 1638 THOMAS STARR WAS ORDERED FINED 20 POUNDS, COMMITTED
AND ENJOINED TO ACKNOWLEDGE HIS FAULT THE NEXT WEEK FOR SPEAKING
AGAINST AN ORDER OF THE COURT, ID., AT 73; IN 1638 KATHERINE FINCH WAS
ORDERED WHIPPED AND COMMITTED UNTIL THE GENERAL COURT FOR SPEAKING
AGAINST THE MAGISTRATES AND THE CHURCHES, ID., AT 76; AND IN 1659
WILLIAM ROBBINSON WAS ORDERED WHIPPED 20 LASHES FOR CONTEMPTUOUS
SPEECHES AGAINST THE WHOLE COURT AND THE GOVERNOR, III RECORDS OF THE
COURT OF ASSISTANTS, AT 68. 

IN ADDITION, COURT OF ASSISTANTS RECORDS SHOW:  IN 1632 THOMAS DEXTER
WAS ORDERED SET IN THE BILBOES (DEVICE USED FOR PUNISHMENT AT SEA,
SIMILAR TO STOCKS ON LAND), DISFRANCHISED AND FINED 40 POUNDS FOR
SPEAKING REPROACHFULLY AGAINST THE GOVERNMENT AND FOR FINDING FAULT
WITH VARIOUS ACTS OF THE COURT, II RECORDS OF THE COURT OF ASSISTANTS,
AT 30; IN 1634 JOHN LEE WAS ORDERED WHIPPED AND FINED 40 POUNDS FOR
SPEAKING REPROACHFULLY OF THE GOVERNMENT (INCLUDING A STATEMENT THAT
THE COURT OF ASSISTANTS MADE LAWS TO PICK MEN'S PURSES), ID., AT 49; IN
1636 THOMAS MILLER WAS ORDERED COMMITTED FOR AN UNSPECIFIED LENGTH OF
TIME FOR "CERTEINE SEDITIOUS & OPPROBRIOUS SPEACHES, SAYING WEE ARE ALL
REBELLS, & TRAYTORS" ("WEE" PROBABLY REFERRING TO THE COURT), ID., AT
63; IN 1638 OR 1639 ROBERT SHORTHOSE WAS ORDERED SET IN THE BILBOES FOR
SLIGHTING THE MAGISTRATE IN HIS SPEECHES, ID., AT 81; AND IN 1640
GEORGE HURNE WAS ORDERED COMMITTED (IN IRONS) AND WHIPPED FOR INSOLENT
AND CONTEMPTUOUS CARRIAGE, ID., AT 93.  VARIOUS FINES FOR CONTEMPTS ARE
ALSO REFLECTED IN THE RECORDS.  THE ONLY INSTANCE WE CAN FIND IN WHICH
THE COURT OF ASSISTANTS DID NOT PROCEED SUMMARILY TO PUNISH WHAT WAS
PROBABLY CONSIDERED A CONTEMPT IN A 1686 CASE IN WHICH SAMUELL
SHRIMPTON WAS INDICTED BY GRAND JURY FOR DENYING THE POWER OF THE
GOVERNMENT, DEFAMING THE GENERAL COURT AND THE COUNTY COURT AND CAUSING
SUCH A TUMULT IN THE COURT TO RESULT IN "BREACH OF HIS MAJESTY'S
GOVERNMENT."  I RECORDS OF THE COURT OF ASSISTANTS, AT 299. 

IN 1635 THE GENERAL COURT ORDERED JOHN ENDECOTT COMMITTED TO PRISON
FOR AN UNSPECIFIED PERIOD "FOR HIS CONTEMPT IN PROTESTING AGAINST THE
PROCEEDEING OF THE COURT  ...  ."  HE WAS RELEASED UPON SUBMISSION AND
ACKNOWLEDGMENT.  SEE HASKINS, LAW AND AUTHORITY IN EARLY MASSACHUSETTS,
AT 207.  THE RECORDS OF THE SUFFOLK COUNTY COURT FROM 1680 TO 1698
REVEAL TWO OTHER CASES IN WHICH MEN WERE ORDERED IMPRISONED FOR
UNSPECIFIED PERIODS FOR "CONTEMPTUOUS CARRIAGE IN OPEN COURT."  JOHN
FARNUM (1681), RECORDS OF THE INFERIOUR COURT OF PLEAS (SUFFOLK COUNTY
COURT), 1680-1698, AT 111; JOHN JONES (1685), ID., AT 128.  THE PYNCHON
COURT RECORD, 1639-1702, REVEALS THREE INSTANCES IN WHICH A MAGISTRATE
FINED MEN FOR CONTEMPTS OF COURT.  SEE COLONIAL JUSTICE IN WESTERN
MASSACHUSETTS, 1639-1702, AT 243, 271, 288. 

IN 1772, THE SUPERIOR COURT OF JUDICATURE ORDERED A PARTY COMMITTED
FOR AN UNSPECIFIED PERIOD FOR SAVAGELY SNATCHING PAPERS FROM HIS
OPPONENT'S HAND.  THWING V. DENNIE, QUINCY'S REPORTS, 338.  SEE ALSO
THE 1767 CHARGE TO THE GRAND JURY OF THE CHIEF JUSTICE OF THAT COURT,
IN WHICH HE SAID THAT "TO STRIKE A MAN IN THE KING'S COURT WILL SUBJECT
THE OFFENDER TO THE LOSS OF HIS HAND AND IMPRISONMENT FOR LIFE," AND
IMPLYING THAT SUCH SENTENCE COULD BE GIVEN BY THE COURT SUMMARILY. 
ID., AT 245. 

                         NEW HAMPSHIRE. 

THE ONLY RELEVANT STATUTES EXISTING IN EIGHTEENTH CENTURY NEW
HAMPSHIRE THAT OUR RESEARCH HAS UNCOVERED WERE THOSE DIRECTED TOWARD
WITNESSES AND JURORS.  AN ACT PASSED IN 1791 PROVIDED THAT COURTS COULD
ATTACH ANY WITNESSES WHO FAILED TO APPEAR AND, IF NO REASONABLE EXCUSE
WAS OFFERED, FINE THEM AS MUCH AS 10 POUNDS.  A JUSTICE OF THE PEACE
WAS ALLOWED TO FINE UP TO 40 SHILLINGS FOR THE SAME OFFENSE.  N.H. LAWS
(1792 ED.), AT 96.  ANOTHER ACT OF THE SAME YEAR PROVIDED THAT GRAND
JURORS WHO FAILED TO APPEAR COULD BE FINED UP TO THREE POUNDS.  N.H.
LAWS (1792 ED.), AT 105. 

THE 1792 NEW HAMPSHIRE CONSTITUTION SPECIFICALLY GAVE THE POWER TO
PUNISH FOR CONTEMPT TO THE HOUSE OF REPRESENTATIVES, SENATE, GOVERNOR
AND COUNCIL.  THE PUNISHMENT WHICH THEY COULD ADMINISTER WAS LIMITED TO
10 DAYS' IMPRISONMENT.  N.H. LAWS (1815 ED.), AT 10.  THERE WAS NO
MENTION OF THE CONTEMPT POWER OF THE NEW HAMPSHIRE COURTS. 

   NEW JERSEY. 

APPARENTLY NO LEGISLATION CONCERNING THE PUNISHMENT OF CONTEMPTS
EXISTED IN NEW JERSEY UNTIL AFTER THE ADOPTION OF THE CONSTITUTION. 
THE FIRST STATUTORY PROVISION WAS ENACTED IN 1798 AND CONCERNED ONLY
WITNESSES AND JURORS IN COURTS FOR THE TRIAL OF SMALL CAUSES, WHICH
COURTS HAD JURISDICTION ONLY WHERE THE AMOUNT IN CONTROVERSY DID NOT
EXCEED $60.  THE LAW PROVIDED THAT DEFAULTING JURORS OR WITNESSES COULD
BE FINED NOT MORE THAN $5 NOR LESS THAN $1.  N.J. REV. LAWS (1800 ED.),
AT 317.  IN THE FOLLOWING YEAR THE LEGISLATURE PROVIDED THAT ANY
CIRCUIT COURT JUROR WHO EITHER FAILED TO APPEAR OR LEFT A TRIAL SHOULD
BE PUNISHED BY A REASONABLE FINE.  N.J. REV. LAWS (1800 ED.), AT 395. 
AND ALSO IN THAT YEAR AN ACT WAS PASSED DEALING WITH THE POWER OF THE
COURT OF CHANCERY IN MATTERS OF CONTEMPT.  IT PROVIDED THAT "TO ENFORCE
OBEDIENCE TO THE PROCESS, RULES, AND ORDERS OF THE COURT OF CHANCERY,
WHERE ANY PERSON SHALL BE IN CONTEMPT  ...  HE SHALL  ...  PAY  ...  A
SUM NOT EXCEEDING FIFTY DOLLARS" AND SHALL BE CONFINED UNTIL THE ORDER
OF THE COURT IS COMPLIED WITH AND THE FINE AND COSTS FULLY PAID.  N.J.
REV. LAWS (1800 ED.), AT 434. 

IN 1698 THE COURT OF COMMON RIGHT OF EAST NEW JERSEY FINED A
CONTEMNER 50 POUNDS AND PLACED HIM IN PRISON UNTIL IT SHOULD BE PAID. 
CONTEMNER HAD COME BEFORE THE COURT, DEMANDED TO KNOW BY WHAT AUTHORITY
IT SAT, DENIED THAT IT SAT BY THE AUTHORITY OF THE KING AND RESISTED
WHEN THE CONSTABLE TOOK HIM INTO CUSTODY.  CASE OF LEWIS MORRICE, I
JOURNAL OF THE COURTS OF COMMON RIGHT AND CHANCERY OF EAST NEW JERSEY,
1683-1702, AT 311. 

NEW YORK. 

PERHAPS THE EARLIEST ENACTMENT CONCERNING CONTEMPT IN COLONIAL NEW
YORK WAS THE CHARTER OF LIBERTIES AND PRIVILEGES, PASSED BY THE GENERAL
ASSEMBLY ON OCTOBER 30, 1683.  HAMLIN AND BAKER, I SUPREME COURT OF
JUDICATURE OF THE PROVINCE OF NEW YORK, 1691-1704, AT 147.  THE CHARTER
CONTAINED A BROAD PROVISION ASSURING JURY TRIALS IN NUMEROUS CASES AND
STATING THAT NO FREEMAN COULD BE IMPRISONED, DEPRIVED OF HIS FREEHOLD
OR LIBERTY OR EXILED EXCEPT BY THE JUDGMENT OF 12 PEERS.  HOWEVER,
THERE WAS A SPECIFIC EXCEPTION FROM THIS JURY REQUIREMENT WHEN THE
FAULT CHARGED WAS A CONTEMPT. 

OUR RESEARCH HAS UNCOVERED NO OTHER STATUTORY PROVISIONS DEALING WITH
CONTEMPT IN NEW YORK PRIOR TO THE CONSTITUTION.  AN 1801 LAW PROVIDED
THAT ANY PERSON SWEARING IN THE PRESENCE OR HEARING OF A JUSTICE OF THE
PEACE, MAYOR, RECORDER OR ALDERMAN COULD BE PLACED, IN A SUMMARY
MANNER, IN THE STOCKS FOR ONE HOUR.  N.Y. LAWS, 1801 (1887 ED.), AT
54.  THEN, IN 1829, A FAIRLY COMPREHENSIVE STATUTE WAS ENACTED,
DESIGNATING WHAT ACTIONS CONSTITUTED CRIMINAL CONTEMPTS AND LIMITING
PUNISHMENTS TO $250 FINE AND 30 DAYS IN JAIL.  2 N.Y. REV. STAT., 1828
1835 (1836 ED.), AT 207. 

THERE ARE FEW REPORTED CASES OF CONTEMPT IN COLONIAL NEW YORK.  ONE
NOTABLE INSTANCE OCCURRED AT THE TRIAL OF JOHN PETER ZENGER IN 1735. 
DURING THE PRELIMINARY STAGES OF THE TRIAL, ZENGER'S ATTORNEYS FILED
EXCEPTIONS TO THE COURT, TAKING THE POSITION THAT THE JUDGES'
COMMISSIONS WERE DEFECTIVE BECAUSE THEY HAD BEEN APPOINTED BY GOVERNOR
COSBY TO SERVE "AT PLEASURE" RATHER THAN "DURING GOOD BEHAVIOR" AS
REQUIRED BY LAW.  THE JUDGES REFUSED TO ALLOW ZENGER'S ATTORNEYS TO
ARGUE IN SUPPORT OF THESE EXCEPTIONS, AND, INSTEAD, CITED THE LAWYERS
FOR CONTEMPT AND DISBARRED THEM FROM FURTHER LEGAL PRACTICE.  THE ORDER
STATED:  "IT IS THEREFORE ORDERED THAT, FOR THE SAID CONTEMPT, THE SAID
JAMES ALEXANDER AND WILLIAM SMITH BE EXCLUDED FROM ANY FARTHER PRACTICE
IN THIS COURT, AND THAT THEIR NAMES BE STRUCK OUT OF THE ROLL OF
ATTORNEYS OF THIS COURT."  BURANELLI, THE TRIAL OF PETER ZENGER, 89;
SEE ALSO ALEXANDER, A BRIEF NARRATIVE OF THE CASE AND TRIAL OF JOHN
PETER ZENGER, 53-55. 

A FEW COLONIAL CASES ARE MENTIONED IN GOEBEL AND NAUGHTON, LAW
ENFORCEMENT IN COLONIAL NEW YORK.  FINES OF 200 POUNDS WERE IMPOSED BY
THE NEW YORK SUPREME COURT IN 1763 AND 1764 FOR CONTEMPT IN REFUSING TO
ANSWER QUESTIONS.  AT 243.  IN 1717 THE SUFFOLK COURT OF OYER AND
TERMINER ORDERED A WEEK OF IMPRISONMENT FOR ONE WHO HAD AFFRONTED THE
KING'S JUSTICES.  ID., AT 606.  AND IN 1729 THE SUPREME COURT IMPOSED A
FINE OF 10 POUNDS UPON ONE WHO HAD "PRIVATELY GIVEN VICTUALS TO THE
JURY."  IBID. 

ONE POST-COLONIAL CASE IS WORTHY OF MENTION, THE CASE OF JOHN V.N.
YATES, 4 JOHNSON'S REP. 317 (1809).  YATES, AN OFFICER OF THE COURT OF
CHANCERY, WAS FOUND IN CONTEMPT FOR HAVING FORGED A NAME UPON A BILL
FILED IN THAT COURT.  HE WAS SENT TO JAIL "THERE TO REMAIN UNTIL THE
FURTHER ORDER OF THE COURT."  ON WRIT OF HABEAS CORPUS THE NEW YORK
SUPREME COURT HELD THAT THIS WAS A VALID FORM OF COMMITMENT AND THAT
THE SUPREME COURT HAD NO POWER TO DISCHARGE ANYONE COMMITTED FOR
CONTEMPT BY THE CHANCERY COURT.  THE COMMITMENT IN THIS CASE WAS NOT
FOR THE PURPOSE OF FORCING YATES TO COMPLY WITH THE WILL OF THE
CHANCERY COURT, BUT RATHER, FOR PUNISHMENT.  THUS, YATES WAS IMPRISONED
DURING THE PLEASURE OF THE COURT FOR A CRIMINAL CONTEMPT. 

                           NORTH CAROLINA. 

PRIOR TO 1868, NORTH CAROLINA HAD FEW STATUTES DEALING WITH OFFENSES
WHICH MIGHT HAVE BEEN CONSIDERED CONTEMPTS:  A 1741 ACT CARRYING A FINE
OF TWO SHILLINGS AND SIX PENCE FOR PROFANELY SWEARING OR CURSING IN A
HEARING OF A JUSTICE OF THE PEACE, AND A FINE OF 10 SHILLINGS OR
PUNISHMENT OF UP TO THREE HOURS IN THE STOCKS FOR SWEARING OR CURSING
IN THE PRESENCE OF ANY COURT OF RECORD, I N.C. PUB. ACTS, 1715-1790
(IREDELL, 1804 ED.), AT 52; A 1777 ACT PROVIDING A FINE OF 50 POUNDS
FOR NONAPPEARANCE OF WITNESSES, I N.C.  LAWS (POTTER, 1821 ED.), AT
298; A 1779 ACT FINING JURORS WHO FAILED TO APPEAR AT SUPERIOR COURTS
200 POUNDS AND FINING NONAPPEARING "BYSTANDERS" 50 POUNDS, I N.C. PUB.
ACTS, 1715-1790 (IREDELL, 1804 ED.), AT 279; AND A 1783 ACT CHANGING
THE FINE AGAINST JURORS TO 10 POUNDS AND ESTABLISHING FINES OF FIVE
POUNDS FOR FAILING TO APPEAR AS COUNTY COURT JURORS AND 20 SHILLINGS
FOR NONAPPEARING "TALISMEN," ID., AT 332. 

THE FIRST GENERAL STATUTE IN NORTH CAROLINA LIMITING THE POWER TO
PUNISH SUMMARILY FOR CONTEMPT WAS ENACTED IN 1868 OR 1869.  IT PROVIDED
A MAXIMUM PENALTY OF $250 AND 30 DAYS' IMPRISONMENT.  STATUTES OF 1868
1869, C. 177, SEC. 2, CITED IN BATTLE'S REVISAL OF THE N.C. PUB. STAT.
(1873 ED.), AT 257. 

               PENNSYLVANIA. 

PRIOR TO THE ADOPTION OF THE CONSTITUTION THERE WERE THREE
PENNSYLVANIA STATUTES RELEVANT TO THE PUNISHMENT OF CONTEMPTS.  THE ACT
OF 1713, WHICH ESTABLISHED THE ORPHANS' COURTS OF PENNSYLVANIA,
PROVIDED THAT "IF ANY PERSON  ...  SUMMONED TO APPEAR  ...  SHALL MAKE
DEFAULT, THE JUSTICES MAY SEND THEIR ATTACHMENTS FOR CONTEMPTS, AND MAY
FORCE OBEDIENCE TO THEIR WARRANTS, SENTENCES AND ORDERS, CONCERNING ANY
MATTER OR THING COGNIZABLE IN THE SAME COURTS BY IMPRISONMENT OF BODY,
OR SEQUESTRATION OF LANDS OR GOODS, AS FULLY AS ANY COURT OF EQUITY MAY
OR CAN DO."  I PA. LAWS, 1700-1781 (1810 ED.), AT 84. 

A 1715 ACT, CREATING THE "SUPREME OR PROVINCIAL COURT OF LAW AND
EQUITY," PROVIDED IN SEC. I THAT THIS COURT WOULD "EXERCISE THE
JURISDICTIONS AND POWERS HEREBY GRANTED CONCERNING ALL AND SINGULAR THE
PREMISES, ACCORDING TO LAW, AS FULLY AND AMPLY TO ALL INTENTS AND
PURPOSES WHATSOEVER, AS THE JUSTICES OF THE COURTS OF KING'S BENCH,
COMMON PLEAS AND EXCHEQUER AT WESTMINSTER, OR ANY OF THEM, MAY OR CAN
DO" (FN10) AND TO "CORRECT AND PUNISH THE CONTEMPTS, OMISSIONS AND
NEGLECTS, FAVORS, CORRUPTIONS AND DEFAULTS OF ALL OR ANY OF THE
JUSTICES OF THE PLEAS, SHERIFFS, CORONERS, CLERKS AND OTHER OFFICERS
WITHIN THE SAID RESPECTIVE COUNTIES."  III PA. STAT. AT LARGE, 1712
1724 (1896 ED.), AT 66-67.  SECTION III OF THE SAME ACT PROVIDED THAT
WHEN SITTING AS A COURT OF EQUITY, THIS COURT COULD ENFORCE OBEDIENCE
TO ITS ORDERS AND DECREES BY "LIKE PROCESS, ORDERS AND PROCEEDINGS
THEREUPON, AS ARE AND HATH BEEN USED IN LIKE CASES IN OR BY THE SAID
COURTS OF CHANCERY OR EXCHEQUER IN GREAT BRITAIN  ...  ."  III PA.
STAT. AT LARGE, 1712-1724 (1896 ED.), AT 68.    IN 1722, PENNSYLVANIA
PASSED "AN ACT FOR ESTABLISHING COURTS OF JUDICATURE IN THIS
PROVINCE."  SECTION VI SAID THAT THESE COURTS "SHALL MINISTER JUSTICE
TO ALL PERSONS, AND EXERCISE THE JURISDICTIONS AND POWERS HEREBY
GRANTED CONCERNING ALL AND SINGULAR THE PREMISES ACCORDING TO LAW, AS
FULLY AND AMPLY, TO ALL INTENTS AND PURPOSES WHATSOEVER, AS THE
JUSTICES OF THE COURT OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER AT
WESTMINSTER, OR ANY OF THEM, MAY OR CAN DO."  III PA. STAT. AT LARGE,
1712-1724 (1896 ED.), AT 303. 

NO PENNSYLVANIA ENACTMENT WAS SPECIFICALLY DIRECTED TO THE MATTER OF
CRIMINAL CONTEMPT UNTIL 1809.   BY THE TERMS OF THIS ACT, THE SUMMARY
CONTEMPT POWER OF THE SEVERAL COURTS OF THE COMMONWEALTH WAS LIMITED TO
OFFICIAL MISCONDUCT OF COURT OFFICERS, DISOBEDIENCE OF COURT PROCESS BY
OFFICERS, PARTIES, JURORS OR WITNESSES AND MISBEHAVIOR OF ANY PERSON IN
THE PRESENCE OF THE COURT.  THE PUNISHMENT OF IMPRISONMENT FOR
CONTEMPTS WAS APPLICABLE "ONLY TO SUCH CONTEMPTS AS ARE COMMITTED IN
OPEN COURT; AND ALL OTHER CONTEMPTS SHALL BE PUNISHED BY FINE ONLY." 
PA. LAWS, 1808-1812, AT 55-56. 

IN FEREE V. STROME, 1 YEATES 303 (1793), A WITNESS FAILED TO APPEAR
AS SUMMONED TO THE NISI PRIUS COURT OF LANCASTER COUNTY.  "HE WAS
REPRIMANDED FOR HIS CONDUCT, BUT AS HE ASSERTED, THAT HE DID NOT
CONCEIVE HIMSELF TO BE SUBPOENAED, HE WAS DISMISSED WITHOUT ANY FINE." 
IN RESPUBLICA V. OSWALD, 1 DALL.  343 (1788), THE PENNSYLVANIA SUPREME
COURT LEVIED A FINE OF 10 POUNDS AND AN IMPRISONMENT OF ONE MONTH UPON
ONE WHO PUBLISHED A CONTEMPTUOUS ARTICLE.  IN PASSING SENTENCE THE
COURT SAID:  "SOME DIFFICULTY HAS ARISEN WITH RESPECT TO OUR SENTENCE;
FOR, ON THE ONE HAND, WE HAVE BEEN INFORMED OF YOUR CIRCUMSTANCES, AND
ON THE OTHER WE HAVE SEEN YOUR CONDUCT:  YOUR CIRCUMSTANCES ARE SMALL,
BUT YOUR OFFENSE IS GREAT AND PERSISTED IN.  SINCE, HOWEVER, THE
QUESTION SEEMS TO RESOLVE ITSELF INTO THIS, WHETHER YOU SHALL BEND TO
THE LAW, OR THE LAW SHALL BEND TO YOU, IT IS OUR DUTY TO DETERMINE THAT
THE FORMER SHALL BE THE CASE."  AT 353. 

THE SUPREME COURT ISSUED ATTACHMENT FOR A CONTEMPT AGAINST ANOTHER
PUBLISHER IN BAYARD V. PASSMORE, 3 YEATES 438, 441 (1802).  CONTEMNER
WAS REQUIRED TO SECURE HIS APPEARANCE BY POSTING $300 AND WAS
ADMONISHED TO "CONSIDER WELL, WHAT ATONEMENT HE WILL MAKE TO THE COURT
...  FOR THE GROSS INJURY."  IT IS LATER REPORTED THAT CONTEMNER WAS
FINED $50 AND IMPRISONED FOR 30 DAYS, TO REMAIN IN PRISON UNTIL THE
FINE AND COSTS WERE PAID.  3 YEATES 442. 

THE RECORDS OF THE COURTS OF QUARTER SESSIONS AND COMMON PLEAS OF
BUCKS COUNTY, PENNSYLVANIA, 1684-1700, REPORT SEVERAL CONTEMPT
ATTACHMENTS.  THOMAS COVERDALE WAS FINED FIVE SHILLINGS FOR COMING INTO
COURT DRUNK.  (AT 111.)  NINE JURORS WERE FINED FIVE SHILLINGS APIECE
FOR THEIR FAILURE TO APPEAR AS SUMMONED.  (AT 391.)  TWO OTHERS WERE
FINED THREE SHILLINGS APIECE FOR THE SAME OFFENSE.  (AT 211.)  AND
THERE ARE THREE REPORTS OF ONE RICHARD THATCHER BEING COMMITTED FOR
ABUSING THE JUSTICES ON THE BENCH.  (AT 100, 198, 208.)  IN EACH
INSTANCE HE WAS HELD IN CUSTODY UNTIL THE NEXT DAY WHEN HE WAS FINED 50
SHILLINGS AND COMMITTED UNTIL HE COULD PRODUCE SURETIES FOR HIS GOOD
BEHAVIOR AND HIS APPEARANCE AT THE NEXT TERM OF COURT.  (AT 101, 199,
208.) 

                            RHODE ISLAND. 

THE ONLY LAWS EXISTING IN COLONIAL RHODE ISLAND WHICH IN ANY WAY
CONCERNED CONTEMPT OF COURT WERE CONFINED TO THE PUNISHMENT OF
WITNESSES AND JURORS FOR FAILURE TO APPEAR IN COURT.  AN ACT WHICH WAS
IN FORCE IN 1798 BUT WHICH PROBABLY DATED BACK TO 1729, PROVIDED THAT
IF A WITNESS FAILED TO APPEAR, THE COURT COULD BRING HIM BEFORE IT BY
WRIT OF ATTACHMENT AND IMPOSE A FINE NOT EXCEEDING $20 AND PLACE THE
WITNESS IN PRISON UNTIL THE FINE WAS PAID.  R.I. LAWS (1798 ED.), AT
206.  ANOTHER ACT, OF LIKE DATES, PROVIDED THAT JURORS WHO FAILED TO
APPEAR SHOULD FORFEIT AND PAY A SUM NOT EXCEEDING $5.   R.I. LAWS (1798
ED.), AT 185. 

RESEARCH HAS DISCLOSED VERY FEW CONTEMPT CASES FROM COLONIAL RHODE
ISLAND.  HOWEVER, SEVERAL CASES ARE REPORTED FROM THE COURT OF TRIALS
OF THE COLONY OF PROVIDENCE PLANTATIONS BETWEEN 1647 AND 1670.   IN TWO
INSTANCES WHERE PERSONS USED CONTEMPTUOUS WORDS BEFORE THIS COURT THEY
WERE REQUIRED TO POST BOND OF 10 POUNDS STERLING TO SECURE THEIR FUTURE
GOOD BEHAVIOR.  I R.I. COURT RECORDS, 1647-1662, AT 29, 51.  A FINE OF
FIVE SHILLINGS WAS IMPOSED UPON ANOTHER WHO USED CONTEMPTUOUS WORDS TO
THE COURT WHILE DRUNK.  II R.I.  COURT RECORDS, 1662-1670, AT 58.  AND
BETWEEN 1647 AND 1662 A TOTAL OF 20 PERSONS WERE FINED 10 SHILLINGS
EACH FOR FAILURE TO APPEAR AS JURORS WHEN SUMMONED.  I R.I. COURT
RECORDS, 1647-1662, AT 16, 19, 29, 30, 35, 73, 77. 

                SOUTH CAROLINA. 

IT APPEARS THAT COLONIAL SOUTH CAROLINA IMPOSED BROADER RESTRAINTS
UPON ITS COURTS IN THE PUNISHMENT OF CONTEMPTS THAN ANY OTHER COLONY. 
A 1702 ACT PROVIDED THAT A WITNESS WHO FAILED TO APPEAR AT THE COURT OF
GENERAL SESSIONS SHOULD PAY 10 POUNDS PLUS DAMAGES, OR UP TO 100 POUNDS
IF HE APPEARED BUT REFUSED TO GIVE EVIDENCE.  THE WITNESS COULD BE
IMPRISONED UNTIL THE FINE WAS PAID.  II S.C. PUB. STAT. LAW (BREVARD,
1814 ED.), AT 338.  A 1731 STATUTE RE-ENACTED THESE PROVISIONS AND
PROVIDED THAT NONAPPEARING JURORS COULD BE SUMMARILY FINED 40
SHILLINGS.  S.C. PUB. LAWS (GRIMKE, 1790 ED.), AT 129, 126.  UNDER THE
SAME ACT, JUDGES WERE PERMITTED TO FINE UP TO 10 POUNDS FOR "ANY
MISBEHAVIOUR OR CONTEMPT" IN COURT AND TO IMPRISON UNTIL PAYMENT WAS
MADE; AND IF ANY PERSON USED VIOLENCE IN THE COURTS, THE JUDGE COULD
FINE AT HIS DISCRETION AND IMPRISON UNTIL PAYMENT WAS MADE.  ID., AT
129.  AN 1811 ACT PROVIDED THAT WHEN AN AFFRAY OCCURRED "TO THE
DISTURBANCE OF THE COURT," WHEN THE COURT WAS SITTING, THE JUDGE COULD
ORDER THE OFFENDERS BROUGHT BEFORE HIM AND "MAKE SUCH ORDER OR ORDERS
...  AS IS OR MAY BE CONSISTENT WITH LAW, JUSTICE AND GOOD ORDER." 
ACTS AND RESOLUTIONS OF THE S.C. GENERAL ASSEMBLY, DECEMBER, 1811, AT
33. 

IN LINING V. BENTHAM, 2 BAY'S REPORTS 1 (1796), A JUSTICE OF THE
PEACE HAD ORDERED A MAN IMPRISONED FOR ACCUSING THE JUSTICE WITH GROSS
PARTIALITY AND ABUSE OF POWER.  THE SOUTH CAROLINA CONSTITUTIONAL COURT
OF APPEALS AFFIRMED THE "POWER OF A MAGISTRATE TO COMMIT FOR INSULTS OR
CONTEMPTS" OFFERED IN THE PRESENCE OF THE COURT.  THE COURT, HOWEVER,
ADDED THE DICTUM THAT CONTEMPTS COMMITTED OUT OF THE PRESENCE OF THE
COURT "OUGHT TO" BE PROSECUTED BY INDICTMENT. 

IN STATE V. JOHNSON, 1 BREVARD'S REPORTS 155 (1802), A JUSTICE OF THE
PEACE HAD ORDERED A WOMAN IMPRISONED FOR AN UNSPECIFIED LENGTH OF TIME
FOR COMING TO HIS OFFICE, TREATING HIM CONTEMPTUOUSLY AND THREATENING
HIM.  THE CHARLESTON CONSTITUTIONAL COURT HELD THAT THE 1731 ACT
PROVIDING PUNISHMENT BY FINE FOR CONTEMPT IN COURT DID NOT APPLY TO
JUSTICES OF THE PEACE, WHO HAVE "INDISPENSABLY REQUISITE" POWER TO
COMMIT FOR CONTEMPT. 

IN STATE V. APPLEGATE, 2 MCCORD'S REPORTS 110 (1822), A JUSTICE OF
THE PEACE HAD ORDERED A CONSTABLE IMPRISONED FOR FAILING TO CARRY OUT
HIS DUTIES.  THE CHARLESTON CONSTITUTIONAL COURT RULED THAT THE
CONSTABLE HAD TO BE DISCHARGED, AS ALL COURTS HAVE THE POWER "TO COMMIT
FOR A CONTEMPT DONE IN THE FACE OF A COURT," BUT THE POWER TO IMPRISON
FOR A CONTEMPT DONE OUT OF COURT IS RESERVED TO "COURTS OF THE HIGHEST
JURISDICTION." 

       VIRGINIA. 

THE ONLY COLONIAL VIRGINIA CONTEMPT STATUTES WHICH WE WERE ABLE TO
FIND WERE ACTS SPECIFYING FINES, USUALLY IN TERMS OF POUNDS OF TOBACCO,
FOR NONAPPEARANCE OF JURORS AND WITNESSES.  (FN11)  A 1788 ACT
ESTABLISHED A MAXIMUM FINE OF 10 POUNDS STERLING FOR JURORS "GUILTY OF
A CONTEMPT TO THE COURT  ...  ."  12 HENING'S VA. STAT. AT LARGE, AT
746.  IN 1792, THE LIMIT WAS CHANGED TO $30.  VA. ACTS (1803 ED.), AT
101.  ANOTHER 1792 ACT SET FORTH PROCEDURES TO BE FOLLOWED IN ISSUING
AND PURSUING PROCESS OF CONTEMPT.  VA. ACTS (1803 ED.), AT 66, 90-91. 

THE FIRST GENERAL CONTEMPT STATUTE WAS PASSED IN 1831.  IT SPECIFIED
FOUR DIFFERENT CATEGORIES OF CONTEMPTS IN WHICH JUDGES HAD POWER TO
INFLICT PUNISHMENTS SUMMARILY.  THE POWER TO PUNISH THE FIRST CLASS OF
CONTEMPTS - MISBEHAVIOR IN THE PRESENCE OF COURTS - WAS LIMITED TO $50
OR 10 DAYS' IMPRISONMENT.  THE OTHER CATEGORIES - VIOLENCE OR THREATS
OF VIOLENCE TO JUDGES, WITNESSES OR JURORS, MISBEHAVIOR OF COURT
OFFICERS IN OFFICIAL TRANSACTIONS, AND DISOBEDIENCE TO A COURT ORDER -
WERE NOT SPECIFICALLY LIMITED.  (FN12)  SUPP. TO THE VA. REV. CODE
(1833 ED.), AT 143-144. 

IN CRIMINAL LAW IN COLONIAL VIRGINIA, ARTHUR P. SCOTT DISCUSSES EARLY
VIRGINIA CONTEMPT CASES.  HE STATES THAT "CONTEMPT OF COURT WAS SHARPLY
REPROVED.  THE LEAST THAT WAS REQUIRED WAS AN OPEN APOLOGY, AND THE
COURT OFTEN ADDED A FINE, OR COMMITMENT TO PRISON, USUALLY TO LAST
UNTIL BOND FOR GOOD BEHAVIOR WAS FURNISHED.  SOMETIMES AN HOUR OR TWO
IN THE STOCKS WAS PRESCRIBED."  AT 171-172.  (FN13)  SCOTT CONCLUDES:
"ON THE WHOLE, A REVIEW OF THE ATTITUDE OF THE VIRGINIA MAGISTRATES
WOULD INDICATE THAT THEY ACTED REASONABLY AND MODERATELY.  THE POWER TO
PUNISH FOR CONTEMPT IS ALWAYS OPEN TO ABUSE.  THE PERSONS INJURED ARE
JUDGES IN THEIR OWN CASE.  THE ONLY SAFEGUARD, OUTSIDE OF PUBLIC
OPINION, LIES IN THE CHARACTER OF THE PERSONS INTRUSTED WITH THIS
POWER."  AT 174. 

FN1  FOR EXAMPLE, PUNISHMENTS OF A FORMER AGE MUST BE JUDGED BY THE
STANDARDS OF THAT TIME AND NOT BY THE NORMS OF THE PRESENT.  AS
PROFESSOR ZECHARIAH CHAFEE OBSERVED: "THE MOST SIGNIFICANT FACT IS THAT
THE COLONISTS SEEM TO HAVE MADE VERY LITTLE USE OF THE FAVORITE MODERN
METHOD OF PUNISHMENT BY LONG TERMS OF IMPRISONMENT.  THEY GOT RID OF
THE WORST OFFENDERS BY EXECUTIONS  ...  ; THE OTHERS THEY USUALLY
SUBJECTED TO SOME SHORT AND SHARP PENALTY AND THEN TURNED THEM LOOSE OR
ELSE SOLD THEM INTO SERVICE.  TO IMPRISON THIEVES AND OTHER RASCALS FOR
YEARS, AS WE DO, WOULD HAVE COST THE TAXPAYERS DEAR, LEFT THE
PRISONERS' RELATIVES WITHOUT SUPPORT, AND KEPT MEN IDLE WHEN THE
COMMUNITY WANTED MAN-POWER.  CONSEQUENTLY, MOST OFFENDERS WERE LET OUT
AFTER THEY HAD PAID THEIR FINES AND DAMAGES TO THE VICTIM, OR HAD BEEN
WHIPPED OR OTHERWISE DISGRACED."  1 RECORDS OF THE SUFFOLK COUNTY
(MASS.) COURT, 1671-1680, AT LXXIX. 

FN2  THE TYPE OF STATUTE MOST FREQUENTLY FOUND IN THE COLONIES IS
THAT WHICH PROVIDED FOR THE PUNISHMENT OF WITNESSES OR JURORS WHO
FAILED TO APPEAR IN COURT AS SUMMONED.  WHILE IN MOST COLONIES THIS
OFFENSE WAS REGARDED, AND PUNISHED, AS A CONTEMPT, IT IS NOT CLEAR
WHETHER IT WAS SO REGARDED AND PUNISHED IN ALL JURISDICTIONS. 

SOME COLONIES HAD STATUTES MAKING IT A CONTEMPT FOR JAILERS,
SHERIFFS, ETC., TO REFUSE TO CARRY OUT AN ORDER OF THE COURT.  IN
GENERAL, WE HAVE NOT INCLUDED SUCH STATUTES. 

FN3  IT IS NOT CLEAR WHETHER THE USE OF THE WORD "CONVICTED" WAS
INTENDED TO PRECLUDE SUMMARY PUNISHMENT. 

FN4  FROM 1634 AT LEAST UNTIL 1672, THE GENERAL COURT WAS "THE CHIEF
CIVIL POWER" OF MASSACHUSETTS, ITS PRINCIPAL BUSINESS BEING
LEGISLATION.  SEE 1 RECORDS OF THE SUFFOLK COUNTY COURT, 1671-1680, AT
XXI-XXII. 

FN5  IT HAS BEEN ARGUED THAT THE WORDS "LAWFULLY CONVICT" INDICATE
THAT FORMAL PROCESS OF INDICTMENT WAS REQUIRED.  SEE HASKINS, LAW AND
AUTHORITY IN EARLY MASSACHUSETTS, AT 278. 

FN6  SEE I PROVINCE OF MASS. BAY:  ACTS AND RESOLVES (1869 ED.), AT
335, ID., AT 374; MASS. BAY CHARTER (1726 ED.), AT 254; I MASS. LAWS,
1780-1800 (1801 ED.), AT 185, 189.  SEE ALSO ACT PROVIDING THAT
NONAPPEARING GRAND JURORS "SHALL BE PROCEEDED AGAINST FOR CONTEMPT." 
MASS. COLONIAL LAWS (1887 ED.), AT 88. 

FN7  I PROVINCE OF MASS. BAY:  ACTS AND RESOLVES (1869 ED.), AT 374. 

FN8  ID., AT 72.  ALSO ID., AT 282-283. 

FN9  THE COURT OF ASSISTANTS CONSISTED OF THE GOVERNOR, DEPUTY
GOVERNOR, AND THE OTHER ANNUALLY ELECTED ASSISTANTS OR MAGISTRATES.  IT
WAS THE INSTITUTIONAL ANCESTOR OF THE MASSACHUSETTS SUPREME JUDICIAL
COURT AND "ALSO HAD THE FUNCTIONS OF AN UPPER HOUSE OF THE LEGISLATURE
AND A GOVERNOR'S COUNCIL.  FOR JUDICIAL BUSINESS IT MET REGULARLY TWICE
A YEAR  ...  TO HEAR AND DETERMINE APPEALS FROM THE COUNTY COURTS, AND
TO EXERCISE ORIGINAL JURISDICTION IN 'ALL CAUSES OF DIVORCE, ALL
CAPITAL AND CRIMINAL CAUSES, EXTENDING TO LIFE, MEMBER OR
BANISHMENT.'"  I RECORDS OF THE SUFFOLK COUNTY COURT, 1671-1680, AT XX
XXI. 

FN10  IT HAS NOT BEEN CONTENDED THAT THE COURTS OF ENGLAND WERE
LIMITED TO TRIVIAL PUNISHMENTS FOR CONTEMPT. 

FN11  1660:  WITNESSES FINED 1,000 POUNDS OF TOBACCO FOR QUARTER
COURTS, 350 POUNDS OF TOBACCO FOR COUNTY COURTS, 2 HENING'S VA. STAT.
AT LARGE, AT 23-24, 69; 1734; PETIT JURORS BEFORE JUSTICES OF OYER AND
TERMINER FINED UP TO 400 POUNDS OF TOBACCO, 4 HENING'S VA. STAT. AT
LARGE, AT 404; 1777: WITNESSES NOT ATTENDING THE GENERAL COURT FINED
FIVE POUNDS (STERLING) OR 1,000 POUNDS OF TOBACCO, PLUS COSTS, VA. PUB.
ACTS (1785 ED.), AT 73; 1788:  SAME FINE FOR DISTRICT COURT WITNESSES,
12 HENING'S VA. STAT. AT LARGE, AT 748; 1792:  GRAND JURORS FINED UP TO
$8, VA. ACTS (1803 ED.), AT 100. 

FN12  SEE YODER V. COMMONWEALTH, 107 VA. 823, 833:  "THE FIRST CLASS
IS, 'MISBEHAVIOR IN THE PRESENCE OF THE COURT, OR SO NEAR THERETO AS TO
OBSTRUCT OR INTERRUPT THE ADMINISTRATION OF JUSTICE.'  BUT THE
LIMITATION OF THIS SECTION  ...  DOES NOT APPLY TO THE SECOND, THIRD,
FOURTH AND FIFTH CLASSES INTO WHICH THE GENERAL SECTION  ...  IS
DIVIDED." 

FN13  THE FOLLOWING ARE CASES CITED BY SCOTT AT 172-173:  IN 1662,
WILLIAM HATTON WAS BOUND OVER TO THE GENERAL COURT FOR SAYING (OUTSIDE
COURT) THAT THE JUSTICES WERE NOT FIT TO SIT; IN 1684, ROBERT SMITH HAD
TO PETITION HUMBLY FOR SAYING THAT THE COURT HAD DONE MORE THAN IT
COULD ANSWER OR JUSTIFY; IN 1685, HUMPHREY CHAMBERLAIN WAS PUT IN JAIL
FOR STANDING WITH A DRAWN SWORD IN THE ROAD BETWEEN THE COURTHOUSE AND
THE FERRY AND FINED FIVE POUNDS STERLING PLUS THE COST OF REPAIRING THE
PRISON FOR BREAKING HIS WAY OUT; IN 1703, MARY RUSSELL WAS ORDERED TO
JAIL UNTIL SHE COULD GIVE BOND FOR GOOD BEHAVIOR FOR SAYING THAT SHE
HAD GOTTEN AS LITTLE JUSTICE IN COURT AS SHE WOULD HAVE IN HELL WITH
THE DEVIL SITTING AS JUDGE; IN 1720, COLONEL BOLLING WAS SIMILARLY
PUNISHED FOR CALLING ON GOD TO DAMN THE JUSTICES; AND IN 1748, RICHARD
DUNNING WAS ORDERED COMMITTED FOR SAYING THAT THE JUDGES NEVER DID ANY
GOOD.    MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

FOR MANY REASONS I CANNOT AGREE WITH THE COURT'S OPINION.  IN THE
FIRST PLACE, CONGRESS HAS NEVER EXPRESSLY GIVEN THE FEDERAL COURTS OF
APPEALS JURISDICTION TO TRY AND PUNISH PEOPLE FOR CRIMINAL CONTEMPT OF
COURT, AND I AM UNWILLING TO HOLD THAT SUCH A POWER EXISTS IN THESE
COURTS IN THE ABSENCE OF A CLEAR AND UNEQUIVOCAL CONGRESSIONAL GRANT. 
THE BUSINESS OF TRIAL COURTS IS TO TRY CASES.  THAT OF APPELLATE COURTS
IS TO REVIEW THE RECORDS OF CASES COMING FROM TRIAL COURTS BELOW.  IN
MY JUDGMENT IT IS BAD FOR APPELLATE COURTS TO BE COMPELLED TO INTERRUPT
AND DELAY THEIR PRESSING APPELLATE DUTIES IN ORDER TO HEAR AND
ADJUDICATE CASES WHICH TRIAL COURTS HAVE BEEN SPECIALLY CREATED TO
HANDLE AS A PART OF THEIR DAILY WORK.  (FN1)  AND IN PARTICULAR, I
BELIEVE THAT IT IS HIGHLY DISRUPTIVE AND DOWNRIGHT INJURIOUS TO
APPELLATE COURTS FOR THEM TO ATTEMPT TO TAKE OVER AND TRY CRIMINAL
CONTEMPT CASES, SURCHARGED AS THESE CASES ALMOST ALWAYS ARE WITH HIGHLY
EMOTIONAL QUARRELS.  COMPARE, E.G., CASES CITED IN GREEN V. UNITED
STATES, 356 U.S. 165, 199, N. 8 (DISSENTING OPINION).  APPELLATE COURTS
ARE TOO USEFUL A PART OF OUR JUDICIAL SYSTEM TO BE SUBJECTED TO SUCH
UNNECESSARY ORDEALS.  I SAY UNNECESSARY BECAUSE TRIAL COURTS ARE AS
QUALIFIED AND CAPABLE TO TRY CRIMINAL CONTEMPT CASES AS THEY ARE TO TRY
OTHERS. 

ASSUMING, HOWEVER, THAT A UNITED STATES COURT OF APPEALS DOES HAVE
JURISDICTION TO TRY CRIMINAL CONTEMPT CASES, I AGREE FOR THE REASONS
SET OUT IN PART A OF MY BROTHER GOLDBERG'S DISSENTING OPINION THAT
CONGRESS HAS COMMANDED THAT DEFENDANTS IN THOSE CASES BE ACCORDED A
RIGHT TO TRIAL BY JURY.  HIS POWERFUL ARGUMENTS ON THIS POINT STAND
UNANSWERED BY THE COURT.  EVEN IN CONSTRUING STATUTES AND RULES
GOVERNING CIVIL CASES WE HAVE TAKEN PAINS, AS CONGRESS COMMANDED, TO
RESOLVE ALL DOUBTS IN FAVOR OF TRIAL BY JURY AS GUARANTEED BY THE
SEVENTH AMENDMENT.  (FN2)  WE SHOULD CERTAINLY BE EQUALLY ALERT TO
CONSTRUE STATUTES GOVERNING TRIALS FOR CRIMINAL CONTEMPT SO AS TO
PROTECT THE RIGHT OF JURY TRIAL GUARANTEED FOR THE "TRIAL OF ALL
CRIMES" BY SECTION 2, CL. 3 OF ARTICLE III OF THE ORIGINAL CONSTITUTION
AND FOR "ALL CRIMINAL PROSECUTIONS" BY THE SIXTH AMENDMENT. 

I THINK THAT IN DENYING A JURY TRIAL HERE THE COURT FLIES IN THE FACE
OF THESE TWO CONSTITUTIONAL COMMANDS.  MY REASONS FOR THIS BELIEF WERE
STATED IN GREEN V. UNITED STATES, 356 U.S. 165, 193 (DISSENTING
OPINION), AND IN OTHER OPINIONS CITED IN THE MARGIN WHICH I HAVE
WRITTEN OR TO WHICH I HAVE AGREED.  (FN3)  NO PROVISIONS OF THE
CONSTITUTION AND THE BILL OF RIGHTS WERE MORE WIDELY APPROVED
THROUGHOUT THE NEW NATION THAN THOSE GUARANTEEING A RIGHT TO TRIAL BY
JURY IN ALL CRIMINAL PROSECUTIONS.  SUBSEQUENT EXPERIENCE HAS CONFIRMED
THE WISDOM OF THEIR APPROVAL.  THEY WERE ADOPTED IN PART, I THINK,
BECAUSE MANY PEOPLE KNEW ABOUT AND DISAPPROVED OF THE TYPE OF COLONIAL
HAPPENINGS WHICH THE COURT SETS OUT IN ITS APPENDIX - CASES IN WHICH,
AS REPORTED BY THE COURT, PEOPLE HAD BEEN SENTENCED TO BE FINED, THROWN
IN JAIL, HUMILIATED IN STOCKS, WHIPPED, AND EVEN NAILED BY THE EAR TO A
PILLORY, ALL PUNISHMENTS IMPOSED BY JUDGES WITHOUT JURY TRIALS. 
UNFORTUNATELY, AS THE COURT'S OPINION POINTS OUT, JUDGES IN THE PAST
DESPITE THESE CONSTITUTIONAL SAFEGUARDS HAVE CLAIMED FOR THEMSELVES
"INHERENT" POWER, ACTING WITHOUT A JURY AND WITHOUT OTHER BILL OF
RIGHTS SAFEGUARDS, TO PUNISH FOR CRIMINAL CONTEMPT OF COURT PEOPLE
WHOSE CONDUCT THEY FIND OFFENSIVE.  THIS MEANS THAT ONE PERSON HAS
CONCENTRATED IN HIMSELF THE POWER TO CHARGE A MAN WITH A CRIME,
PROSECUTE HIM FOR IT, CONDUCT HIS TRIAL, AND THEN FIND HIM GUILTY.  I
DO NOT AGREE THAT ANY SUCH "INHERENT" POWER EXISTS.  (FN4)  CERTAINLY
NO LANGUAGE IN THE CONSTITUTION PERMITS IT; IN FACT, IT IS EXPRESSLY
FORBIDDEN BY THE TWO CONSTITUTIONAL COMMANDS FOR TRIAL BY JURY.  AND OF
COURSE THE IDEA THAT PERSONS CHARGED WITH CRIMINAL OFFENSES SUCH AS
CRIMINAL CONTEMPT ARE NOT CHARGED WITH "CRIMES" IS A JUDICIAL FICTION. 
AS I SAID IN GREEN, I THINK THAT THIS DOCTRINE THAT A JUDGE HAS
"INHERENT" POWER TO MAKE HIMSELF PROSECUTOR, JUDGE AND JURY SERIOUSLY
ENCROACHES UPON THE CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND SHOULD BE
REPUDIATED. 

IN GREEN THE COURT AFFIRMED A THREE-YEAR SENTENCE IMPOSED FOR
CRIMINAL CONTEMPT.  BUT NOW IN NOTE 12 OF ITS OPINION IN THE PRESENT
CASE THE COURT HAS INSERTED AN AMBIGUOUS STATEMENT WHICH INTIMATES THAT
IF A SENTENCE OF SUFFICIENT "SEVERITY" HAD ALREADY BEEN IMPOSED ON
THESE DEFENDANTS, A MAJORITY OF THE COURT WOULD NOW OVERRULE GREEN IN
PART, BY HOLDING THAT IF A CRIMINAL CONTEMPT CHARGE IS TRIED WITHOUT
ALLOWING THE DEFENDANT A JURY TRIAL, PUNISHMENT IS CONSTITUTIONALLY
LIMITED TO THAT CUSTOMARILY METED OUT FOR "PETTY OFFENSES."  (FN5)  I
WELCOME THIS AS A HALTING BUT HOPEFUL STEP IN THE DIRECTION OF ULTIMATE
JUDICIAL OBEDIENCE TO THE DOUBLY PROCLAIMED CONSTITUTIONAL COMMAND THAT
ALL PEOPLE CHARGED WITH A CRIME, INCLUDING THOSE CHARGED WITH CRIMINAL
CONTEMPT, MUST BE GIVEN A TRIAL WITH ALL THE SAFEGUARDS OF THE BILL OF
RIGHTS, INCLUDING INDICTMENT BY GRAND JURY AND TRIAL BY JURY. 

WHATEVER IS INCLUDED WITHIN THE SCOPE OF "PETTY OFFENSES," CERTAINLY
IF THE PRESENT DEFENDANTS COMMITTED THE ACTS WITH WHICH THEY ARE
CHARGED, THEIR CRIMES CANNOT BE CLASSIFIED AS "PETTY," BUT ARE GRAVE
INDEED.  THESE DEFENDANTS NEVERTHELESS, LIKE OTHERS CHARGED WITH
CRIMES, SHOULD HAVE THEIR CASES HEARD ACCORDING TO CONSTITUTIONAL DUE
PROCESS, INCLUDING INDICTMENT AND TRIAL BY JURY.  NOTHING LESS CAN
MEASURE UP TO THE KIND OF TRIALS WHICH ARTICLE III AND OUR BILL OF
RIGHTS GUARANTEE.  IT IS HIGH TIME, IN MY JUDGMENT, TO WIPE OUT ROOT
AND BRANCH THE JUDGE-INVENTED AND JUDGE-MAINTAINED NOTION THAT JUDGES
CAN TRY CRIMINAL CONTEMPT CASES WITHOUT A JURY.  (FN6)  IT WILL BE A
FINE DAY FOR THE CONSTITUTIONAL LIBERTY OF INDIVIDUALS IN THIS COUNTRY
WHEN THAT AT LAST IS DONE. 

FN1  WHAT I HAVE SAID ABOVE, OF COURSE, HAS NO APPLICATION WHATEVER
TO THE USEFUL PRACTICE, AUTHORIZED BY STATUTE, BY WHICH CIRCUIT JUDGES
SOMETIMES SIT ON DISTRICT COURTS AND DISTRICT JUDGES SOMETIMES SIT ON
COURTS OF APPEALS.  SEE 28 U.S.C. SECS. 2284, 291, 292. 

FN2  SEE DAIRY QUEEN, INC., V. WOOD, 369 U.S. 469; BEACON THEATRES,
INC., V. WESTOVER, 359 U.S. 500.  SEE ALSO SIMLER V. CONNER, 372 U.S.
221.  THE SEVENTH AMENDMENT PROVIDES: 

"IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED
TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED, AND NO
FACT TRIED BY A JURY, SHALL BE OTHERWISE RE-EXAMINED IN ANY COURT OF
THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW." 

FN3  SEE ALSO, E.G., IN RE MCCONNELL, 370 U.S. 230; IN RE MURCHISON,
349 U.S. 133; OFFUTT V. UNITED STATES, 348 U.S. 11; IN RE OLIVER, 333
U.S. 257; UNGAR V. SARAFITE, ANTE, AT 592 (DOUGLAS, J., DISSENTING);
PIEMONTE V. UNITED STATES, 367 U.S. 556, 565 (DOUGLAS, J., DISSENTING);
LEVINE V. UNITED STATES, 362 U.S. 610, 620 (DISSENTING OPINION); BROWN
V. UNITED STATES, 359 U.S. 41, 53 (WARREN, C.J., DISSENTING); YATES V.
UNITED STATES, 355 U.S. 66, 76 (DOUGLAS, J., DISSENTING); NILVA V.
UNITED STATES, 352 U.S. 385, 396 (DISSENTING OPINION); UNITED STATES V.
UNITED MINE WORKERS, 330 U.S. 258, 328 (OPINION OF BLACK AND DOUGLAS,
JJ.). 

FN4  SEE GREEN V. UNITED STATES, 356 U.S. 165, 193 (DISSENTING
OPINION), AND OPINIONS CITED, SUPRA, N. 3. 

FN5  "SOME MEMBERS OF THE COURT ARE OF THE VIEW THAT, WITHOUT REGARD
TO THE SERIOUSNESS OF THE OFFENSE, PUNISHMENT BY SUMMARY TRIAL WITHOUT
A JURY WOULD BE CONSTITUTIONALLY LIMITED TO THAT PENALTY PROVIDED FOR
PETTY OFFENSES."  ANTE, P. 695. 

FN6  OF COURSE, "IT SHOULD BE EMPHASIZED THAT WE ARE NOT AT ALL
CONCERNED WITH THE POWER OF COURTS TO IMPOSE CONDITIONAL IMPRISONMENT
FOR THE PURPOSE OF COMPELLING A PERSON TO OBEY A VALID ORDER.  SUCH
COERCION, WHERE THE DEFENDANT CARRIES THE KEYS TO FREEDOM IN HIS
WILLINGNESS TO COMPLY WITH THE COURT'S DIRECTIVE, IS ESSENTIALLY A
CIVIL REMEDY DESIGNED FOR THE BENEFIT OF OTHER PARTIES AND HAS QUITE
PROPERLY BEEN EXERCISED FOR CENTURIES TO SECURE COMPLIANCE WITH
JUDICIAL DECREES  ...  .  IN MY JUDGMENT THE DISTINCTION BETWEEN
CONDITIONAL CONFINEMENT TO COMPEL FUTURE PERFORMANCE AND UNCONDITIONAL
IMPRISONMENT DESIGNED TO PUNISH PAST TRANSGRESSIONS IS CRUCIAL,
ANALYTICALLY AS WELL AS HISTORICALLY, IN DETERMINING THE PERMISSIBLE
MODE OF TRIAL UNDER THE CONSTITUTION."  GREEN V. UNITED STATES, 356
U.S. 165, 197-198 (DISSENTING OPINION).  IT WAS THIS KIND OF
CONDITIONAL IMPRISONMENT FOR THE PURPOSE OF COMPELLING OBEDIENCE TO A
VALID COURT ORDER THAT WAS INVOLVED IN WATSON V. WILLIAMS, 36 MISS. 
331, WHICH THE COURT STRESSES SO HEAVILY AT THE CONCLUDING PART OF ITS
OPINION.  IN THAT MISSISSIPPI CASE WATSON REFUSED TO DELIVER PROPERTY
TO MINOR CHILDREN WHOSE GUARDIAN HE HAD BEEN.  THE LOWER COURT HAD
ENTERED AN ORDER "COMMITTING THE PLAINTIFF TO THE JAIL OF LOWNDES
COUNTY FOR SAFE KEEPING, UNTIL HE COMPLY WITH THE ORDER OF THE COURT." 
ID., AT 340.  THE SUPREME COURT OF MISSISSIPPI DISMISSED THE APPEAL FOR
WANT OF JURISDICTION.  AS I SAID IN SACHER V. UNITED STATES, 343 U.S.
1, 22 (DISSENTING OPINION), WITH RESPECT TO THIS KIND OF CONDITIONAL
CIVIL CONTEMPT ORDER, I AGREE WITH THIS STATEMENT OF MR. JUSTICE
HOLMES:  "I WOULD GO AS FAR AS ANY MAN IN FAVOR OF THE SHARPEST AND
MOST SUMMARY ENFORCEMENT OF ORDER IN COURT AND OBEDIENCE TO DECREES,
BUT WHEN THERE IS NO NEED FOR IMMEDIATE ACTION CONTEMPTS ARE LIKE ANY
OTHER BREACH OF LAW AND SHOULD BE DEALT WITH AS THE LAW DEALS WITH
OTHER ILLEGAL ACTS."  TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S.
402, 425-426 (DISSENTING OPINION). 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

IN RESPONSE TO THE CERTIFIED QUESTION, I WOULD ANSWER THAT DEFENDANTS
HAVE BOTH A STATUTORY AND A CONSTITUTIONAL RIGHT TO HAVE THEIR CASE
TRIED BY A JURY. 

          A. THE STATUTORY RIGHT TO A JURY TRIAL. 

DEFENDANTS CLAIM THAT 62 STAT. 844, 18 U.S.C. SEC. 3691, ENTITLES
THEM TO A JURY TRIAL IN THIS CASE.  THAT STATUTE PROVIDES IN RELEVANT
PART THAT "THE ACCUSED, UPON DEMAND THEREFOR, SHALL BE ENTITLED TO
TRIAL BY A JURY" WHENEVER THE ALLEGED CONTEMPT "SHALL CONSIST IN
WILLFUL DISOBEDIENCE OF ANY LAWFUL WRIT, PROCESS, ORDER, RULE, DECREE,
OR COMMAND OF ANY DISTRICT COURT OF THE UNITED STATES BY DOING OR
OMITTING ANY ACT OR THING IN VIOLATION THEREOF, AND THE ACT OR THING
DONE OR OMITTED ALSO CONSTITUTES A CRIMINAL OFFENSE UNDER ANY ACT OF
CONGRESS  ...  ," EXCEPT IF THE ALLEGED CONTEMPT IS "COMMITTED IN
DISOBEDIENCE OF ANY LAWFUL WRIT, PROCESS, ORDER, RULE, DECREE, OR
COMMAND ENTERED IN ANY SUIT OR ACTION BROUGHT OR PROSECUTED IN THE NAME
OF, OR ON BEHALF OF, THE UNITED STATES."  THE STATUTORY RIGHT TO A JURY
TRIAL THUS TURNS ON THREE ESSENTIAL FACTORS: (1) THE SOURCE OF THE
ORDER; (2) THE NATURE OF THE ALLEGED VIOLATION; AND (3) THE CHARACTER
OF THE PARTY THAT "BROUGHT OR PROSECUTED" THE "SUIT OR ACTION."  I
CONCLUDE FOR THE REASONS STATED BELOW THAT THE DISTRICT COURT WAS THE
SOURCE OF THE BASIC ORDER IN THIS CASE; THAT THE NATURE OF THE ALLEGED
VIOLATION WOULD MAKE IT A CRIMINAL OFFENSE UNDER 74 STAT. 86, 18 U.S.C.
(SUPP. IV) SEC. 1509; AND THAT THE "SUIT OR ACTION" IN THE CASE WAS
BROUGHT AND PROSECUTED NOT BY THE UNITED STATES, BUT BY JAMES MEREDITH,
A PRIVATE PARTY.  IT FOLLOWS THAT DEFENDANTS HAVE A STATUTORY RIGHT TO
BE TRIED FOR THEIR ALLEGED CONTEMPT BY A JURY OF THEIR PEERS. 

                    1.  THE SOURCE OF THE ORDER. 

THE SHOW-CAUSE ORDER ENTERED BY THE COURT OF APPEALS ON JANUARY 4,
1963, SPECIFIED THREE EARLIER ORDERS WHICH DEFENDANTS ALLEGEDLY
VIOLATED.  (FN1)  THE ACTS COMMITTED WERE ALLEGED TO BE "FOR THE
PURPOSE OF PREVENTING COMPLIANCE WITH THIS COURT'S (THE COURT OF
APPEALS') ORDER OF JULY 28, 1962, AND OF THE SIMILAR ORDER OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI,
ENTERED ON SEPTEMBER 13, 1962, AND WERE IN WILFUL DISOBEDIENCE AND
DEFIANCE OF THE TEMPORARY RESTRAINING ORDER OF THIS COURT (THE COURT OF
APPEALS) ENTERED ON SEPTEMBER 25, 1962."  A BRIEF ANALYSIS OF THE
BACKGROUND AND CONTENT OF EACH OF THESE THREE ORDERS IS NECESSARY TO AN
UNDERSTANDING OF THE PROBLEM. 

AFTER JAMES MEREDITH WAS DENIED ADMISSION TO THE UNIVERSITY OF
MISSISSIPPI, HE FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI, WHICH DENIED THE REQUESTED RELIEF. 
ON APPEAL, THE UNITED STATES COURT OF APPEALS REVERSED THE JUDGMENT AND
DIRECTED THE DISTRICT COURT TO ORDER MEREDITH'S ADMISSION.  THE MANDATE
OF THE COURT OF APPEALS WAS THEN STAYED BY A SINGLE JUDGE OF THAT
COURT.  THE COURT OF APPEALS IMMEDIATELY RECALLED ITS MANDATE, ISSUED A
NEW ONE EXPLICITLY DIRECTING THE DISTRICT COURT FORTHWITH TO ISSUE A
PERMANENT INJUNCTION COMPELLING MEREDITH'S ADMISSION TO THE UNIVERSITY,
AND VACATED THE STAY GRANTED BY THE SINGLE JUDGE.  ON JULY 28, 1962,
THE COURT OF APPEALS, IN AID OF ITS APPELLATE JURISDICTION, ISSUED ITS
OWN PRELIMINARY INJUNCTION, (FN2) "PENDING SUCH TIME AS THE DISTRICT
COURT HAS ISSUED AND ENFORCED THE ORDERS HEREIN REQUIRED AND UNTIL SUCH
TIME AS THERE HAS BEEN FULL AND ACTUAL COMPLIANCE IN GOOD FAITH WITH
EACH AND ALL OF SAID ORDERS  ...  ."  THE COURT OF APPEALS' PRELIMINARY
INJUNCTION, WHICH RAN AGAINST "THE  ...  DEFENDANTS, ALL PERSONS ACTING
IN CONCERT WITH THEM, AS WELL AS ANY AND ALL PERSONS HAVING KNOWLEDGE
OF THE DECREE  ...  ," WAS SUBSTANTIALLY THE SAME AS THE PERMANENT
INJUNCTION WHICH THE COURT OF APPEALS DIRECTED THE DISTRICT COURT TO
ENTER.  A SINGLE JUDGE AGAIN STAYED THE MANDATES OF THE COURT OF
APPEALS, BUT ON SEPTEMBER 10, 1962, MR. JUSTICE BLACK, AFTER
CONSULTATION WITH THE MEMBERS OF THIS COURT, VACATED ALL THE STAYS
ISSUED BY THE SINGLE JUDGE OF THE COURT OF APPEALS.  (FN3)    THREE
DAYS LATER, ON SEPTEMBER 13, 1962, THE DISTRICT COURT, DECLARING THAT
THE "MATTER IS NOW BEFORE IT BY VIRTUE OF THE MANDATE OF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT AND THE MANDATE OF MR.
JUSTICE BLACK  ...  ," ISSUED A PERMANENT INJUNCTION AS DIRECTED BY THE
COURT OF APPEALS.  (FN4)  THIS INJUNCTION WAS SUBSTANTIALLY IDENTICAL
WITH THE PRELIMINARY INJUNCTION ISSUED BY THE COURT OF APPEALS ON JULY
28, 1962. 

AT THIS JUNCTURE, THEREFORE, TWO SUBSTANTIALLY IDENTICAL INJUNCTIONS
APPEAR TO HAVE BEEN IN EFFECT:  THE "PRELIMINARY" ONE ISSUED BY THE
COURT OF APPEALS ON JULY 28, 1962; AND THE "PERMANENT" ONE ISSUED BY
THE DISTRICT COURT ON SEPTEMBER 13, PURSUANT TO THE MANDATE OF THE
COURT OF APPEALS.  THE SHOW-CAUSE ORDER SUBSEQUENTLY ENTERED AGAINST
DEFENDANTS BY THE COURT OF APPEALS ALLEGES SEPARATE VIOLATIONS OF BOTH
INJUNCTIONS.  IT SEEMS CLEAR, HOWEVER, THAT ANY ACT ALLEGEDLY COMMITTED
BY CONTEMNERS IN VIOLATION OF THE PRELIMINARY INJUNCTION WOULD
NECESSARILY HAVE VIOLATED THE PERMANENT INJUNCTION AS WELL.  THIS COURT
HAS HELD THAT A SINGLE ACT OR COURSE OF CONDUCT ALLEGED TO BE IN
VIOLATION OF TWO IDENTICAL ORDERS CANNOT BE PUNISHED AS TWO SEPARATE
CONTEMPTS.  SEE YATES V. UNITED STATES, 355 U.S. 66.  ALSO SEE UNITED
STATES V. COSTELLO, 198 F.2D 200.  THIS IS NO LESS TRUE IF THE TWO
ORDERS WERE ISSUED BY DIFFERENT FEDERAL COURTS, ESPECIALLY IF THE
EARLIER ORDER WAS DESIGNATED "PRELIMINARY" AND THE LATER ONE
"PERMANENT."  I WOULD CONCLUDE THEREFORE THAT, AT LEAST FOR PURPOSES OF
A CONTEMPT CONVICTION, THE PRELIMINARY INJUNCTION ENTERED BY THE COURT
OF APPEALS ON JULY 28, 1962, TO PROTECT ITS APPELLATE JURISDICTION, WAS
SUPERSEDED BY THE SUBSTANTIALLY IDENTICAL PERMANENT INJUNCTION ENTERED
BY THE DISTRICT COURT ON SEPTEMBER 13, PURSUANT TO THE MANDATES OF THE
COURT OF APPEALS AND MR. JUSTICE BLACK. 

IT IS ARGUED, HOWEVER, THAT THE PRELIMINARY INJUNCTION ENTERED BY THE
COURT OF APPEALS ON JULY 28, 1962, EXPLICITLY APPLIED UNTIL JAMES
MEREDITH'S "ACTUAL ADMISSION" TO THE UNIVERSITY.  THIS PART OF THE
COURT OF APPEALS' ORDER MUST BE CONSTRUED IN THE CONTEXT OF THE OTHER
ORDERS ENTERED ON JULY 28, 1962, AND THE IMMEDIATELY PRECEDING DAYS. 
DURING THIS TIME THE COURT OF APPEALS WAS ATTEMPTING FINALLY AND
DEFINITIVELY TO SECURE JAMES MEREDITH'S ADMISSION TO THE UNIVERSITY. 
TO ACCOMPLISH THIS, IT CONCLUDED, CORRECTLY I THINK, THAT THERE SHOULD
BE NO LAPSE IN THE OPERATION OF THE SUBSTANTIVE TERMS OF THE INJUNCTION
UNTIL THE DESIRED END HAD BEEN ACHIEVED.  THEREFORE, THE COURT OF
APPEALS ANNOUNCED THE TERMS OF THE INJUNCTION WHICH WOULD BE IN EFFECT
FROM THAT TIME UNTIL MEREDITH'S ADMISSION WAS SECURED.  IT ALSO ISSUED
A MANDATE REQUIRING THE DISTRICT COURT TO INCORPORATE THESE TERMS INTO
A PERMANENT INJUNCTION.  THE OPERATIVE EFFECT OF THESE ORDERS WAS THAT,
IN THE EVENT THAT THE DISTRICT COURT'S PERMANENT INJUNCTION FAILED
FULLY TO INCORPORATE THE SUBSTANTIVE TERMS OF THE COURT OF APPEALS'
PRELIMINARY INJUNCTION, THEN THE UNINCORPORATED PROVISION WOULD REMAIN
IN EFFECT AS AN ORDER OF THE COURT OF APPEALS.  BUT IN THE EVENT THAT
THE DISTRICT COURT'S PERMANENT INJUNCTION FULLY INCORPORATED THE
SUBSTANTIVE TERMS OF THE COURT OF APPEALS' PRELIMINARY INJUNCTION, THEN
THE INJUNCTION WOULD BECOME AN ORDER OF THE DISTRICT COURT.  IN THIS
WAY, THE COURT OF APPEALS WAS ASSURED THAT EACH OF THE SUBSTANTIVE
TERMS OF ITS INJUNCTION WOULD REMAIN IN EFFECT FROM THE TIME OF THE
ORDER UNTIL MEREDITH'S ADMISSION AND THAT NONE OF THE TERMS OF THE
INJUNCTION WOULD SIMULTANEOUSLY BE INCORPORATED IN ORDERS OF TWO
COURTS.  THE DISTRICT COURT'S PERMANENT INJUNCTION DID IN FACT
INCORPORATE ALL THE SUBSTANTIVE TERMS OF THE COURT OF APPEALS'
PRELIMINARY INJUNCTION.  THUS, SO LONG AS IT REMAINED IN EFFECT, AS IT
DID UNTIL MEREDITH'S ADMISSION, IT NECESSARILY SUPERSEDED THE COURT OF
APPEALS' PRELIMINARY INJUNCTION.  IT FOLLOWS FROM THIS, THAT
DEFENDANTS' ACTS WHICH ALLEGEDLY VIOLATED BOTH THE COURT OF APPEALS'
ORDER OF JULY 28, 1962, AND THE DISTRICT COURT'S ORDER OF SEPTEMBER 13,
1962, MUST BE DEEMED ONLY ALLEGED VIOLATIONS OF THE DISTRICT COURT'S
PERMANENT INJUNCTION OF SEPTEMBER 13, 1962.  ANY ALLEGATION OF CONTEMPT
OF THE COURT OF APPEALS' PRELIMINARY INJUNCTION OF JULY 28, 1962, MUST
BE DEEMED WITHOUT LEGAL SIGNIFICANCE FOR PURPOSES OF THIS PROCEEDING. 

THE THIRD AND LAST ORDER WHICH DEFENDANTS WERE ACCUSED OF VIOLATING
WAS "THE TEMPORARY RESTRAINING ORDER OF THIS COURT (THE COURT OF
APPEALS) ENTERED ON SEPTEMBER 25, 1962."  (FN5)  THAT ORDER
SPECIFICALLY NAMED DEFENDANT BARNETT AND OTHERS AND TEMPORARILY
RESTRAINED THEM "AND ALL PERSONS IN ACTIVE CONCERT OR PARTICIPATION
WITH THEM" FROM "INTERFERING WITH OR OBSTRUCTING" COMPLIANCE WITH THE
COURT OF APPEALS' ORDER OF JULY 28, 1962, AND WITH THE DISTRICT COURT'S
ORDER OF SEPTEMBER 13, 1962.  IT ALSO RESTRAINED THEM FROM COMMITTING
OTHER DESIGNATED ACTS WHICH WERE NOT SPECIFICALLY COVERED BY THE
EARLIER ORDERS (E.G., INSTITUTING CIVIL OR CRIMINAL ACTIONS AGAINST
MEREDITH).  DEFENDANTS, HOWEVER, WERE NOT ACCUSED IN THE SHOW-CAUSE
ORDER OF VIOLATING THE ENTIRE TEMPORARY RESTRAINING ORDER OF SEPTEMBER
25, 1962, BUT ONLY THAT PART OF THE ORDER RESTRAINING THEM "FROM
INTERFERING WITH OR OBSTRUCTING THE ENJOYMENT OF RIGHTS OR THE
PERFORMANCE OF DUTIES UNDER THE ORDER OF THIS COURT (THE COURT OF
APPEALS) OF JULY 28, 1962, IN THE CASE OF MEREDITH V. FAIR, AND A
SIMILAR ORDER OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
MISSISSIPPI IN THAT CASE  ...  ."  EACH SPECIFIED VIOLATION IN THE SHOW
CAUSE ORDER RELATED TO THE PERMANENT INJUNCTION OF SEPTEMBER 13, 1962,
AND THE PRELIMINARY INJUNCTION OF JULY 28, 1962.  DEFENDANTS, IN THEIR
NOTICE OF "THE ESSENTIAL FACTS CONSTITUTING THE CRIMINAL CONTEMPT
CHARGED," RULE 42(B), FED. RULES CRIM. PROC., RECEIVED NO NOTICE THAT
THEY WERE BEING CHARGED WITH VIOLATING ANY PROVISIONS OF THE COURT OF
APPEALS' TEMPORARY RESTRAINING ORDER OF SEPTEMBER 25, 1962, OTHER THAN
THOSE DERIVED DIRECTLY FROM THE EARLIER ORDERS. 

WITH RESPECT TO THE ALLEGED CONTEMPT HERE CHARGED, THEREFORE, THE
COURT OF APPEALS' TEMPORARY RESTRAINING ORDER ADDED NOTHING TO THE
EARLIER ORDERS, EXCEPT TO NAME SPECIFICALLY ONE OF THE DEFENDANTS.  BUT
THIS WAS OBVIOUSLY UNNECESSARY, AS THE GOVERNMENT MUST CONCEDE. 
GOVERNOR BARNETT MUST BE DEEMED INCLUDED WITHIN THE COVERAGE OF THE
EARLIER ORDERS ENJOINING "ALL PERSONS ACTING IN CONCERT WITH THE NAMED
DEFENDANTS, AS WELL AS ANY AND ALL PERSONS HAVING KNOWLEDGE OF THE
DECREE ...  ."  WERE THIS NOT SO, GOVERNOR BARNETT'S ALLEGED CONTEMPTS
OF THE EARLIER ORDERS WOULD HAVE TO FALL, AS WOULD LIEUTENANT GOVERNOR
JOHNSON'S ALLEGED CONTEMPT OF ALL THE ORDERS HE IS ACCUSED OF
VIOLATING, SINCE HE WAS NOT SPECIFICALLY NAMED IN ANY OF THEM. 

THUS, UNLESS FORM IS TO PREVAIL OVER SUBSTANCE, WE MUST CONCLUDE THAT
THERE HAS BEEN NO INDEPENDENTLY ALLEGED VIOLATION OF THE COURT OF
APPEALS' TEMPORARY RESTRAINING ORDER OF SEPTEMBER 25, 1962.  THAT ORDER
THEREFORE HAS NO BEARING ON WHETHER DEFENDANTS HAVE A STATUTORY RIGHT
TO A JURY TRIAL. 

IN SUM, THEREFORE, I CONCLUDE THAT THE DISTRICT COURT'S PERMANENT
INJUNCTION OF SEPTEMBER 13, 1962, SUPERSEDED AND REPLACED THE COURT OF
APPEALS' SUBSTANTIALLY IDENTICAL PRELIMINARY INJUNCTION OF JULY 28,
1962, AND THAT THE COURT OF APPEALS' TEMPORARY RESTRAINING ORDER OF
SEPTEMBER 25, 1962, AS IT IS RELEVANT HERE, ADDED NOTHING TO THE
EARLIER ORDERS.  THUS, ALTHOUGH THE SHOW-CAUSE ORDER ALLEGED CONTEMPTS
OF TWO ORDERS OF THE COURT OF APPEALS AND ONE ORDER OF THE DISTRICT
COURT, I WOULD HOLD THAT FOR PURPOSES OF DECIDING WHETHER 18 U.S.C.
SEC. 3691 IS APPLICABLE, DEFENDANTS HAVE BEEN CHARGED WITH VIOLATING
ONLY ONE ORDER, WHICH WAS ISSUED BY A "DISTRICT COURT OF THE UNITED
STATES." 

EVEN IF I WERE TO AGREE WITH THE COURT, HOWEVER, THAT DEFENDANTS WERE
EFFECTIVELY CHARGED WITH CONTEMPT OF ALL THREE ORDERS, MY CONCLUSION
WOULD REMAIN THE SAME.  THE STATUTE DOES NOT SAY IN NEGATIVE TERMS THAT
WHENEVER THE ALLEGED CONTEMPT "SHALL CONSIST IN WILLFUL DISOBEDIENCE OF
ANY LAWFUL  ...  ORDER" OF ANY COURT OF APPEALS, THE ACCUSED SHALL NOT
BE ENTITLED TO A TRIAL BY JURY.  IT SAYS IN AFFIRMATIVE TERMS THAT
WHENEVER THE ALLEGED CONTEMPT "SHALL CONSIST IN WILLFUL DISOBEDIENCE OF
ANY LAWFUL  ...  ORDER  ...  OF ANY DISTRICT COURT  ...  , THE ACCUSED
...  SHALL BE ENTITLED TO TRIAL BY JURY."  DEFENDANTS HERE ARE CHARGED
WITH DISOBEDIENCE OF AN ORDER OF A DISTRICT COURT.  THE FACT THAT THEY
ARE CHARGED ALSO WITH DISOBEDIENCE OF ORDERS OF A COURT OF APPEALS
SHOULD NOT DEFEAT THEIR STATUTORY RIGHT TO A JURY TRIAL. 

                    2.  THE NATURE OF THE ALLEGED VIOLATION. 

THE SECOND RELEVANT QUESTION IN DECIDING WHETHER DEFENDANTS HAVE A
STATUTORY RIGHT TO A JURY TRIAL IS WHETHER "THE ACT OR THING DONE OR
OMITTED ALSO CONSTITUTES A CRIMINAL OFFENSE UNDER ANY ACT OF CONGRESS
...  ."  18 U.S.C. SEC. 3691.  THIS IS NOT IN DISPUTE HERE.  THE
QUESTION CERTIFIED BY THE COURT OF APPEALS SPECIFIED THAT "THE ACTS
CHARGED AS CONSTITUTING THE ALLEGED DISOBEDIENCE WERE OF A CHARACTER AS
TO CONSTITUTE ALSO A CRIMINAL OFFENSE UNDER AN ACT OF CONGRESS  ...
."  WHILE THE COURT IS NOT BOUND BY THE FACTS ASSUMED IN A CERTIFIED
QUESTION, IT IS CLEAR HERE THAT CONTEMNERS' ALLEGED ACTS WOULD
CONSTITUTE VIOLATIONS OF 18 U.S.C. (SUPP. IV) SEC. 1509.  (FN6)  THE
GOVERNMENT DOES NOT DISPUTE THIS. 

      3.  THE CHARACTER OF THE PARTY WHICH BROUGHT THE SUIT OR
ACTION. 

THE THIRD AND FINAL QUESTION IN DECIDING WHETHER DEFENDANTS HAVE A
STATUTORY RIGHT TO A JURY TRIAL IS WHETHER THE ALLEGED CONTEMPT WAS
"COMMITTED IN DISOBEDIENCE OF ANY LAWFUL WRIT, PROCESS, ORDER, RULE,
DECREE, OR COMMAND ENTERED IN ANY SUIT OR ACTION BROUGHT OR PROSECUTED
IN THE NAME OF, OR ON BEHALF OF, THE UNITED STATES."  18 U.S.C.  SEC.
3691. 

THE GOVERNMENT CONTENDS THAT IT ENTERED THE CASE ON SEPTEMBER 18,
1962, AND THAT THE COURT OF APPEALS' TEMPORARY RESTRAINING ORDER OF
SEPTEMBER 25, 1962, WHICH WAS ISSUED ON ITS MOTION, WAS THUS AN ORDER
ENTERED IN A SUIT OR "ACTION BROUGHT OR PROSECUTED IN THE NAME OF, OR
ON BEHALF OF, THE UNITED STATES."  MY PREVIOUS CONCLUSION - THAT THE
COURT OF APPEALS' ORDER OF SEPTEMBER 25, 1962, WAS OF NO LEGAL
SIGNIFICANCE SO FAR AS THE CHARGED CONTEMPTS ARE CONCERNED - PROVIDES A
COMPLETE ANSWER TO THE GOVERNMENT'S CONTENTION.  IF I AM CORRECT IN
CONCLUDING THAT THE ONLY OPERATIVE ORDER WAS THE PERMANENT INJUNCTION
ENTERED BY THE DISTRICT COURT ON SEPTEMBER 13, 1962, AT A TIME WHEN NO
ONE CLAIMS THE UNITED STATES HAD ANY FORMAL INTEREST IN THE CASE, THEN
IT NECESSARILY FOLLOWS THAT DEFENDANTS ARE CHARGED WITH CONTEMPT OF AN
ORDER ENTERED IN A SUIT BROUGHT IN THE NAME OF, AND ON BEHALF OF, A
PRIVATE PARTY, AND NOT THE UNITED STATES. 

EVEN ASSUMING, ARGUENDO, THAT THE COURT OF APPEALS' ORDER OF
SEPTEMBER 25, 1962, HAD SOME INDEPENDENT LEGAL SIGNIFICANCE, I COULD
NOT CONCLUDE, AS THE COURT DOES, THAT IT WAS "ENTERED IN ANY SUIT OR
ACTION BROUGHT OR PROSECUTED IN THE NAME OF, OR ON BEHALF OF, THE
UNITED STATES."  THE COURT OF APPEALS' ORDER AUTHORIZING THE UNITED
STATES TO PARTICIPATE IN THE CASE, AUTHORIZED IT TO PARTICIPATE "AS
AMICUS CURIAE," NOT AS A PARTY.  IT ALSO AUTHORIZED THE UNITED STATES
"TO SUBMIT PLEADINGS, EVIDENCE, ARGUMENTS AND BRIEFS AND TO INITIATE
SUCH FURTHER PROCEEDINGS, INCLUDING PROCEEDINGS FOR INJUNCTIVE RELIEF
AND PROCEEDINGS FOR CONTEMPT OF COURT  ...  ."  THE COURT OF APPEALS
ENTERED THE TEMPORARY RESTRAINING ORDER OF SEPTEMBER 25, 1962, ON
MOTION MADE BY THE UNITED STATES PURSUANT TO THIS AUTHORIZATION.  BUT
THE APPLICABLE STATUTE DOES NOT EXEMPT FROM THE PROTECTION OF A JURY
TRIAL "CONTEMPTS COMMITTED IN DISOBEDIENCE OF ANY LAWFUL  ...  ORDER
... ENTERED" UPON MOTION BY THE UNITED STATES.  IT ONLY EXEMPTS
CONTEMPTS COMMITTED IN DISOBEDIENCE OF "ANY LAWFUL  ...  ORDER  ...
ENTERED IN ANY SUIT OR ACTION BROUGHT OR PROSECUTED IN THE NAME OF, OR
ON BEHALF OF, THE UNITED STATES."  THE TOUCHSTONE OF THE EXEMPTION IS
THUS THE PARTY WHO BROUGHT OR PROSECUTED THE BASIC SUIT OR ACTION, NOT
THE PARTY UPON WHOSE MOTION THE VIOLATED ORDER WAS ENTERED.   THIS
READING OF THE STATUTE IS BUTTRESSED BY THE REPEATED REFERENCES IN THE
CONGRESSIONAL DEBATES TO SUITS WHERE THE UNITED STATES IS A "PARTY." 
SEE, E.G., 48 CONG. REC. 8780, 8785; 51 CONG. REC. 9672, 14413, 15946. 

THE GOVERNMENT CONTENDS, HOWEVER, THAT IT WAS, IN EFFECT, A PARTY TO
THE SUIT, BECAUSE OF: 

"THE CRITICAL FACT  ...  THAT IN INSTITUTING AND PROSECUTING THOSE
PROCEEDINGS THE UNITED STATES WAS ASSERTING AN INTEREST OF ITS OWN
SEPARATE AND DISTINCT FROM THAT OF THE PLAINTIFF IN THE ORIGINAL
ACTION.  THE INTEREST OF THE UNITED STATES WAS THE SOVEREIGN'S
INDEPENDENT CONCERN FOR PRESERVING THE INTEGRITY OF ITS COURTS AND
VINDICATING THEIR AUTHORITY." 

BUT THIS ALONE DOES NOT CONVERT THE UNITED STATES FROM AN AMICUS
CURIAE INTO A PARTY.  A TRADITIONAL FUNCTION OF AN AMICUS IS TO ASSERT
"AN INTEREST OF ITS OWN SEPARATE AND DISTINCT FROM THAT OF THE
PARTIES," WHETHER THAT INTEREST BE PRIVATE OR PUBLIC.  IT IS "CUSTOMARY
FOR THOSE WHOSE RIGHTS DEPEND ON THE OUTCOME OF CASES  ...  TO FILE
BRIEFS AMICUS CURIAE, IN ORDER TO PROTECT THEIR OWN INTERESTS." 
WIENER, BRIEFING AND ARGUING FEDERAL APPEALS, 269 (1961).  THIS COURT
HAS RECOGNIZED THE POWER OF FEDERAL COURTS TO APPOINT "AMICI TO
REPRESENT THE PUBLIC INTEREST IN THE ADMINISTRATION OF JUSTICE." 
UNIVERSAL OIL PRODUCTS CO. V. ROOT RFG.  CO., 328 U.S. 575, 581.  IN
THIS CASE THE GOVERNMENT WAS SERVING ESSENTIALLY IN THAT CAPACITY.  ITS
ULTIMATE INTEREST - SECURING COMPLIANCE WITH THE COURTS' ORDERS
REQUIRING MEREDITH'S ADMISSION - WAS IDENTICAL WITH THE INTEREST OF THE
PRIVATE PLAINTIFF, AND IT WAS INVITED BY THE COURT TO RENDER NECESSARY
AID IN THAT DIRECTION.    THE GOVERNMENT'S ARGUMENT THUS GOES TOO FAR. 
"AFTER ALL, A FEDERAL COURT CAN ALWAYS CALL ON LAW OFFICERS OF THE
UNITED STATES TO SERVE AS AMICI" "TO REPRESENT THE PUBLIC INTEREST IN
THE ADMINISTRATION OF JUSTICE."  IBID.  THE GOVERNMENT HAS "AN INTEREST
OF ITS OWN" IN VINDICATING ITS AUTHORITY IN EVERY INSTANCE WHERE THE
ORDERS OF ITS COURTS ARE VIOLATED, NO MATTER HOW PRIVATE OR
INSIGNIFICANT THE SUIT.  (THIS IS EVIDENCED BY THE FACT THAT CRIMINAL
CONTEMPT PROCEEDINGS ARE TYPICALLY PROSECUTED BY THE SOVEREIGN, NOT THE
PRIVATE LITIGANT.)  IN THIS RESPECT EVERY CRIMINAL CONTEMPT PROCEEDING
IS ACTUALLY (OR AT LEAST POTENTIALLY) A "SUIT OR ACTION BROUGHT OR
PROSECUTED IN THE NAME OF, OR ON BEHALF OF, THE UNITED STATES."  SUCH A
READING WOULD, OF COURSE, MAKE THE STATUTE DEAD LETTER.  IT WOULD
BESTOW NO "RIGHT" TO A JURY TRIAL AT ALL. 

WE ARE DEALING HERE WITH A REMEDIAL STATUTE BROADLY DESIGNED TO
AFFORD THE RIGHT TO A JURY TRIAL IN ALL BUT A NARROWLY LIMITED CATEGORY
OF CONTEMPTS CONSTITUTING VIOLATIONS OF CRIMINAL STATUTES. 
ACCORDINGLY, THE STATUTE SHOULD BE CONSTRUED TO EFFECTUATE ITS BASIC
PURPOSE, AND ITS EXEMPTIONS SHOULD NOT BE UNDULY EXPANDED BY JUDICIAL
CONSTRUCTION.  THE GOVERNMENT CONCEDES THAT THE PRECISE PROBLEM
INVOLVED HERE - THE UNITED STATES ENTERING A PRIVATE LITIGATION AS
AMICUS CURIAE AND OBTAINING THE ORDER ALLEGEDLY VIOLATED - "DID NOT
ARISE IN THE COURSE OF THE LEGISLATIVE HISTORY."  IN MY VIEW,
THEREFORE, SINCE A READING OF THE STATUTE INCLINES AGAINST APPLYING THE
EXCEPTION HERE, AND SINCE THERE ARE NO COUNTERVAILING POLICY
CONSIDERATIONS, THE STATUTORY EXEMPTION SHOULD BE READ SO AS NOT TO
APPLY TO THE DEFENDANTS. 

THE FOREGOING SATISFIES ME THAT THE ALLEGED CONTEMPT WAS OF AN ORDER
OF A DISTRICT COURT; THAT THE ALLEGED ACTS ALSO CONSTITUTE A CRIMINAL
VIOLATION UNDER AN ACT OF CONGRESS; THAT THE RELEVANT ORDER WAS NOT
ENTERED IN A SUIT OR ACTION BROUGHT OR PROSECUTED IN THE NAME OF, OR ON
BEHALF OF, THE UNITED STATES; AND THAT, ACCORDINGLY, DEFENDANTS ARE
ENTITLED TO A JURY TRIAL PURSUANT TO 18 U.S.C. SEC. 3691.  INSOFAR AS
THERE MAY BE LINGERING DOUBTS CONCERNING THE APPLICATION OF THAT
STATUTE TO THE CIRCUMSTANCES HERE, I WOULD RESOLVE THOSE DOUBTS IN
FAVOR OF THE STATUTORY RIGHT TO A JURY TRIAL IN ORDER TO AVOID THE
GRAVE CONSTITUTIONAL QUESTIONS INHERENT IN THE PRACTICE OF PUNISHING
CONTEMPTS SUCH AS THE ONE HERE CHARGED WITHOUT TRIAL BY JURY.  SINCE
THE COURT HAS NOT ACCEPTED THIS STATUTORY ANALYSIS, I MUST CONSIDER
THESE CONSTITUTIONAL QUESTIONS. 

               B. THE CONSTITUTIONAL RIGHT TO A JURY TRIAL. 

THE COURT, IN DENYING DEFENDANTS' CONSTITUTIONAL CLAIM TO A JURY
TRIAL, RESTS ON THE HISTORY OF CRIMINAL CONTEMPTS RELIED ON IN ITS PAST
DECISIONS.  THE MOST RECENT OF THESE DECISIONS IS GREEN V. UNITED
STATES, 356 U.S. 165, WHICH WAS DECIDED BY A CLOSELY DIVIDED COURT. 
(FN7)  THE COURT SAID: 

"THE PRINCIPLE THAT CRIMINAL CONTEMPTS OF COURT ARE NOT REQUIRED TO
BE TRIED BY A JURY UNDER ARTICLE III OR THE SIXTH AMENDMENT IS FIRMLY
ROOTED IN OUR TRADITIONS."  ID., AT 187. 

"AGAINST THIS HISTORICAL BACKGROUND OF THE POWER TO PUNISH CRIMINAL
CONTEMPTS SUMMARILY AT THE TIME OF THE CONSTITUTION, THIS COURT HAS
NEVER DEVIATED FROM THE VIEW THAT THE CONSTITUTIONAL GUARANTEE OF TRIAL
BY JURY FOR 'CRIMES' AND 'CRIMINAL PROSECUTIONS' WAS NOT INTENDED TO
REACH TO CRIMINAL CONTEMPTS."  ID., AT 186. 

A REVIEW OF THE ORIGINAL SOURCES CONVINCES ME, HOWEVER, THAT THE
HISTORY RELIED ON BY THE DECISIONS OF THIS COURT DOES NOT JUSTIFY THE
RELATIVELY RECENT PRACTICE OF IMPOSING SERIOUS PUNISHMENT FOR CRIMINAL
CONTEMPTS WITHOUT A TRIAL BY JURY.  MY RESEARCH, WHICH IS CONFIRMED BY
THE AUTHORITIES CITED IN THE APPENDIX TO THE OPINION OF THE COURT,
SUGGESTS THE FOLLOWING EXPLANATION AS TO WHY CRIMINAL CONTEMPTS WERE
GENERALLY TRIED WITHOUT A JURY AT THE TIME OF THE CONSTITUTION:  THE
PENALTIES THEN AUTHORIZED AND IMPOSED FOR CRIMINAL CONTEMPTS WERE
GENERALLY MINOR; AND THE COURTS WERE AUTHORIZED TO IMPOSE MINOR
CRIMINAL PENALTIES WITHOUT A TRIAL BY JURY FOR A VARIETY OF TRIVIAL
OFFENSES INCLUDING, BUT NOT LIMITED TO, CRIMINAL CONTEMPTS. 

   1.  CRIMINAL CONTEMPTS AT ABOUT THE TIME OF THE CONSTITUTION. 

IN 1821, THIS COURT RECOGNIZED THAT THERE WERE "KNOWN AND
ACKNOWLEDGED LIMITS OF FINE AND IMPRISONMENT" FOR CRIMINAL CONTEMPT. 
ANDERSON V. DUNN, 6 WHEAT.  204, 228.  (FN8)  WHAT THESE LIMITS WERE AT
ABOUT THE TIME OF THE CONSTITUTION CAN BEST BE DERIVED FROM THE
CONTEMPORARY STATUTORY AND CASE LAW. 

WHEN THE BILL OF RIGHTS WAS RATIFIED, AT LEAST FIVE OF THE ORIGINAL
13 STATES HAD SPECIFIC STATUTORY LIMITATIONS ON THE PUNISHMENT WHICH
COULD BE IMPOSED SUMMARILY FOR CRIMINAL CONTEMPTS.  THE CONNECTICUT
STATUTE PERMITTING SUMMARY PUNISHMENT FOR CERTAIN TYPES OF CONTEMPTS
CONTAINED A PROVISO "THAT NO SINGLE MINISTER OF JUSTICE SHALL INFLICT
ANY OTHER PUNISHMENT FOR CRIMINAL CONTEMPT THAN  ...  PUTTING THEM IN
THE STOCKS, THERE TO SIT NOT EXCEEDING TWO HOURS; OR IMPOSING A FINE,
NOT EXCEEDING FIVE DOLLARS."  (FN9)  THE DELAWARE STATUTE PERMITTED A
CONTEMNER TO "BE FINED IN ANY SUM NOT EXCEEDING FIVE POUNDS"; IT DID
NOT PERMIT IMPRISONMENT FOR CRIMINAL CONTEMPT.  (FN10)  THE MARYLAND
STATUTE PERMITTED THE COURT TO HOLD THE CONTEMNER "IN CLOSE CUSTODY
UNTIL THE SAID PROCESS, RULE OR ORDER, SHALL BE FULLY PERFORMED  ...  "
(CIVIL CONTEMPT), BUT IT PERMITTED NO PUNISHMENT "EXCEEDING TEN POUNDS
CURRENT MONEY."  (FN11)  THE NEW HAMPSHIRE PROVISION PERMITTED
IMPRISONMENT FOR CONTEMPT NOT EXCEEDING 10 DAYS AND A FINE "NOT TO
EXCEED TEN POUNDS."  (FN12)  THE SOUTH CAROLINA STATUTE PERMITTED A
FINE NOT EXCEEDING 10 POUNDS FOR ANY CONTEMPT "BY WORD OR GESTURE," AND
A FINE "AT THE DISCRETION OF THE SAID COURT," FOR ANYONE WHO SHALL
"STRIKE OR USE ANY VIOLENCE IN THE SAID COURTS"; (FN13) IT DID NOT
PERMIT IMPRISONMENT.  (FN14) 

WITHIN A SHORT TIME AFTER THE RATIFICATION OF THE BILL OF RIGHTS
OTHER STATES ENACTED STATUTES CONTAINING SPECIFIC LIMITATIONS ON THE
PUNISHMENTS WHICH COULD BE IMPOSED SUMMARILY FOR CRIMINAL CONTEMPTS. 
THESE STATUTES, WHICH APPEAR TO BE CODIFICATIONS OF EXISTING PRACTICES
AND COURT DECISIONS RATHER THAN NEWLY CREATED LEGISLATIVE LIMITATIONS,
(FN15) SHED ADDITIONAL LIGHT ON THE PRACTICE AT ABOUT THE TIME OF THE
CONSTITUTION. 

THE NEW JERSEY STATUTE PERMITTED A CONTEMNER TO BE PUNISHED BY A FINE
"NOT EXCEEDING FIFTY DOLLARS."  (FN16)  THE KENTUCKY STATUTE SPECIFIED
THAT "NO COURT OR JUDGE SHALL, FOR ANY CONTEMPT AGAINST SUCH COURT OR
JUDGE, PASS JUDGMENT FOR, DECREE, ORDER OR INFLICT, OR CAUSE TO BE
INFLICTED, ANY FINE EXCEEDING THE SUM OF TEN POUNDS, NOR ANY
IMPRISONMENT EXCEEDING ONE DAY, WITHOUT THE TRIAL BY JURY TO ASSESS THE
QUANTITY OF SUCH FINE, AND DETERMINE THE DURATION OF SUCH
IMPRISONMENT."  (FN17)  THE PENNSYLVANIA STATUTE PERMITTED AN
UNSPECIFIED FINE AND IF THE CONTEMNER "SHALL BE UNABLE TO PAY SUCH
FINE, SUCH PERSON MAY BE COMMITTED TO PRISON BY THE COURT FOR ANY TIME
NOT EXCEEDING THREE MONTHS."  (FN18)  THE NEW YORK STATUTE PERMITTED A
MAXIMUM FINE OF $250 AND IMPRISONMENT FOR 30 DAYS IN SUMMARY
PROCEEDINGS FOR CRIMINAL CONTEMPTS.  (FN19) 

THE ALABAMA CRIMINAL CONTEMPT STATUTE DECLARED THAT: 

"WHEREAS, THE TRIAL BY JURY IN ALL PENAL, AS WELL AS CRIMINAL CASES,
IS BOTH A SAFE AND ADEQUATE MODE OF INVESTIGATION AND DECISION, AND
SHOULD ONLY BE SUSPENDED IN CASES OF ABSOLUTE NECESSITY.  BE IT
ENACTED, THAT NO COURT SHALL, FOR ANY CONTEMPT AGAINST SUCH COURT,  ...
INFLICT  ...  ANY FINE EXCEEDING THE SUM OF TWENTY DOLLARS, NOR ANY
IMPRISONMENT EXCEEDING TWENTY-FOUR HOURS, WITHOUT THE TRIAL BY JURY, TO
ASSESS THE AMOUNT OF SUCH FINE, AND DETERMINE THE DURATION OF SUCH
IMPRISONMENT."  (FN20) 

THE VIRGINIA STATUTE WAS QUITE DETAILED.  IT CONTAINED THE FOLLOWING
PROVISO: 

"THAT NO COURT SHALL, WITHOUT THE INTERVENTION OF A JURY, FOR ANY
SUCH CONTEMPT OF MISBEHAVIOUR IN THE PRESENCE OF THE COURT, OR SO NEAR
THERETO AS TO OBSTRUCT OR INTERRUPT THE ADMINISTRATION OF JUSTICE
THEREIN, IMPOSE ANY FINE ON ANY PERSON OR PERSONS, EXCEEDING FIFTY
DOLLARS, OR COMMIT HIM, HER OR THEM, FOR A LONGER PERIOD THAN TEN DAYS:
AND PROVIDED, THAT IN ANY CASE OF AGGRAVATED CONTEMPT  ...  , THE
COURT MAY IMPANNEL A JURY, WITHOUT ANY INDICTMENT, INFORMATION OR
PLEADINGS, IN A SUMMARY MANNER, TO ASCERTAIN THE AMOUNT OF FINE OR TERM
OF IMPRISONMENT, PROPER TO BE INFLICTED FOR SUCH OFFENCE, AND MAY
IMPOSE THE FINE OR IMPRISONMENT ASCERTAINED BY THE JURY IN MANNER
AFORESAID."  (FN21) 

THE LAWS OF OTHER STATES SIMILARLY LIMITED THE MAXIMUM PENALTIES
WHICH COULD BE IMPOSED SUMMARILY FOR CRIMINAL CONTEMPTS.  (FN22) 

THE AVAILABLE EVIDENCE OF THE PRACTICE IN CRIMINAL CONTEMPT CASES
ALSO SUGGESTS THAT PUNISHMENTS WERE TRIVIAL.  (FN23)  THIS PRACTICE WAS
DESCRIBED BY CHIEF JUSTICE KENT IN 1809 AS FOLLOWS:  "THERE IS NO SUCH
THING AS AN ABUSE OF THIS POWER IN MODERN TIMES.  THE CASE PROBABLY IS
NOT TO BE FOUND.  AN ALARM CANNOT BE EXCITED AT ITS EXISTENCE, IN THE
EXTENT NOW LAID DOWN  ...  .  THE TENDENCY OF THE TIMES, IS RATHER TO
INDUCE THE COURTS TO RELAX, THAN INCREASE IN THE SEVERITY OF THEIR
ANCIENT DISCIPLINE, TO EXERCISE THEIR POWER OVER CONTEMPTS WITH EXTREME
MODERATION  ...  ."  IN THE CASE OF JOHN V.N.  YATES, 4 JOHNSON'S REP.
(N.Y. 1809) 317, 375-376.  AND, IN 1916, THE SUPREME COURT OF IOWA
SUMMARIZED A CENTURY AND A QUARTER OF PRACTICE IN CRIMINAL CONTEMPT
CASES IN THE FOLLOWING TERMS: 

"THE AUTHORITIES MAY BE SEARCHED IN VAIN FOR ANY PRECEDENT UNDER OUR
CONSTITUTIONAL FORM OF GOVERNMENT HOLDING IT TO BE IN THE POWER OF A
STATE TO CLOTHE ITS COURTS WITH AUTHORITY TO VISIT INFAMOUS PUNISHMENT
UPON ANY PERSON FOR CONTEMPT, OR IN ANY PROCEEDING WHATEVER OTHER THAN
THE ORDERLY PROCESS OF TRIAL  ...  ."  FLANNAGAN V. JEPSON, 177 IOWA
393, 400, 158 N.W. 641, 643-644. 

        2.  PETTY OFFENSES AT ABOUT THE TIME OF THE CONSTITUTION. 

THIS COURT HAS RECOGNIZED THAT: 

"AT THE TIME OF THE ADOPTION OF THE CONSTITUTION THERE WERE NUMEROUS
OFFENSES, COMMONLY DESCRIBED AS 'PETTY,' WHICH WERE TRIED SUMMARILY
WITHOUT A JURY, BY JUSTICES OF THE PEACE IN ENGLAND, AND BY POLICE
MAGISTRATES OR CORRESPONDING JUDICIAL OFFICERS IN THE COLONIES, AND
PUNISHED BY COMMITMENT TO JAIL, A WORKHOUSE, OR A HOUSE OF
CORRECTION."  DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617, 624. 

NEW JERSEY STATUTES, FOR EXAMPLE, PERMITTED TRIAL BY A JUDGE FOR
OFFENSES SUCH AS "PROFANELY SWEARING" (PUNISHABLE BY A FINE OF "ONE
HALF OF A DOLLAR," FOUR HOURS IN THE STOCKS, OR FOUR DAYS IN THE
"COMMON GAOL"); "EXCESSIVE USE OF SPIRITUOUS, VINOUS, OR OTHER STRONG
LIQUOR" (FINE OF ONE DOLLAR, FOUR HOURS IN THE STOCKS, OR FOUR DAYS IN
"GAOL"); (FN24) AND DISORDERLY CONDUCT (THREE MONTHS IN THE
WORKHOUSE).  (FN25)  IN NEW YORK, TRIAL BY JURY WAS NOT REQUIRED FOR
OFFENSES SUCH AS UNLICENSED PRACTICE BY A PHYSICIAN (FINE OF FIVE
POUNDS); (FN26) OFFERING COPPER COINS OF KNOWN INFERIOR QUALITY OR
WEIGHT (FINE OF SIX POUNDS OR FIVE TIMES THE VALUE OF THE COINS,
WHICHEVER IS LESS); (FN27) "DRUNKENNESS OR SWEARING" (FINE OF THREE
SHILLINGS OR FOUR HOURS IN THE STOCKS); (FN28) AND FALSE PRETENSES
(IMPRISONMENT FOR SIX MONTHS).  (FN29)  MARYLAND STATUTES PERMITTED
TRIAL BY A JUDGE FOR OFFENSES SUCH AS REFUSAL BY THE MOTHER OF A
BASTARD CHILD TO "DISCOVER" THE FATHER (FINE OF 30 SHILLINGS), (FN30)
AND DISORDERLY CONDUCT (THREE MONTHS IN THE WORKHOUSE).  (FN31)
VIRGINIA PERMITTED SUMMARY PUNISHMENT FOR OFFENSES RANGING FROM
IMPROPER ISSUING OF NOTES (FINE OF 25 SHILLINGS) (FN32) TO DISORDERLY
CONDUCT (20 LASHES AND THREE MONTHS' IMPRISONMENT).  (FN33) 

THIS HISTORY HAS LED THE COURT TO CONCLUDE THAT "THE INTENT OF THE
FRAMERS WAS TO EXCLUDE FROM THE CONSTITUTIONAL REQUIREMENT OF A JURY
THE TRIAL OF PETTY CRIMINAL OFFENSES."  SCHICK V. UNITED STATES, 195
U.S. 65, 70.  IT HAS SIMILARLY LED THE COURT TO CONCLUDE THAT "EXCEPT
IN THAT CLASS OR GRADE OF OFFENCES CALLED PETTY OFFENCES  ...  THE
GUARANTEE OF AN IMPARTIAL JURY TO THE ACCUSED IN A CRIMINAL PROSECUTION
...  SECURES TO HIM THE RIGHT TO ENJOY THAT MODE OF TRIAL FROM THE
FIRST MOMENT, AND IN WHATEVER COURT, HE IS PUT ON TRIAL FOR THE OFFENCE
CHARGED," CALLAN V. WILSON, 127 U.S. 540, 557, AND THAT "THE SEVERITY
OF THE PENALTY" MUST BE CONSIDERED IN DETERMINING WHETHER A VIOLATION
OF LAW, "IN OTHER RESPECTS TRIVIAL AND NOT A CRIME AT COMMON LAW, MUST
BE DEEMED SO SERIOUS AS TO BE COMPARABLE WITH COMMON LAW CRIMES, AND
THUS TO ENTITLE THE ACCUSED TO THE BENEFIT OF A JURY TRIAL PRESCRIBED
BY THE CONSTITUTION."  DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617,
625. 

 3.  CRIMINAL CONTEMPT IN RECENT YEARS. 

THERE HAS BEEN A DRAMATIC INCREASE IN RECENT YEARS IN THE SEVERITY OF
THE PUNISHMENT IMPOSED IN THE FEDERAL COURTS WITHOUT TRIAL BY JURY FOR
CRIMINAL CONTEMPT.  FOR EXAMPLE, IN GREEN V. UNITED STATES, SUPRA, AND
COLLINS V. UNITED STATES, 269 F.2D 745, SENTENCES OF IMPRISONMENT FOR
THREE YEARS WERE IMPOSED; IN PIEMONTE V. UNITED STATES, 367 U.S. 556, A
SENTENCE OF IMPRISONMENT FOR 18 MONTHS WAS IMPOSED; IN BROWN V. UNITED
STATES, 359 U.S. 41, A SENTENCE OF IMPRISONMENT FOR 15 MONTHS WAS
IMPOSED; IN NILVA V. UNITED STATES, 352 U.S. 385, A SENTENCE OF
IMPRISONMENT FOR ONE YEAR AND ONE DAY WAS IMPOSED; AND IN LEVINE V.
UNITED STATES, 362 U.S. 610, A SENTENCE OF IMPRISONMENT FOR ONE YEAR
WAS IMPOSED. 

                      4.  HISTORICAL CONCLUSIONS. 

THE AVAILABLE EVIDENCE SEEMS TO INDICATE THAT (A) AT THE TIME OF THE
CONSTITUTION CRIMINAL CONTEMPTS TRIABLE WITHOUT A JURY WERE GENERALLY
PUNISHABLE BY TRIVIAL PENALTIES, AND THAT (B) AT THE TIME OF THE
CONSTITUTION ALL TYPES OF "PETTY" OFFENSES PUNISHABLE BY TRIVIAL
PENALTIES WERE GENERALLY TRIABLE WITHOUT A JURY.  THIS HISTORY
JUSTIFIES THE IMPOSITION WITHOUT TRIAL BY JURY OF NO MORE THAN TRIVIAL
PENALTIES FOR CRIMINAL CONTEMPTS.  THE COURT, IN LIGHT OF THE HISTORY
REVIEWED HERE AND IN THE APPENDIX TO THE OPINION OF THE COURT, HAS
FAILED SUFFICIENTLY TO TAKE INTO ACCOUNT THE POSSIBILITY THAT ONE
SIGNIFICANT REASON WHY CRIMINAL CONTEMPTS WERE TRIED WITHOUT A JURY AT
THE TIME OF THE CONSTITUTION WAS BECAUSE THEY WERE DEEMED A SPECIES OF
PETTY OFFENSE PUNISHABLE BY TRIVIAL PENALTIES.  (FN34)  SINCE CRIMINAL
CONTEMPTS, AS THEY ARE NOW PUNISHED, CAN NO LONGER BE DEEMED A SPECIES
OF PETTY OFFENSE PUNISHABLE BY TRIVIAL PENALTIES, DEFENDANTS'
CONSTITUTIONAL CLAIM TO TRIAL BY JURY SHOULD NOT BE DENIED ON THE
AUTHORITY OF THE HISTORY OF CRIMINAL CONTEMPT AT THE TIME OF THE
CONSTITUTION NOR ON THE AUTHORITY OF THE PAST DECISIONS OF THIS COURT
WHICH RELIED ON THAT HISTORY.  (FN35)  THEIR CLAIM SHOULD BE EVALUATED
BY ANALYZING THE REAL NATURE OF CRIMINAL CONTEMPTS AND APPLYING THE
POLICY OF THE CONSTITUTIONAL REQUIREMENT OF TRIAL BY JURY IN "ALL
CRIMES" AND "ALL CRIMINAL PROSECUTIONS."  (FN36)

5.  THE NATURE OF CRIMINAL CONTEMPTS AND THE POLICY OF TRIAL BY
JURY. 

I WISH TO MAKE IT CLEAR THAT I AM NOT HERE CONCERNED WITH, NOR DO I
QUESTION, THE POWER OF THE COURTS TO COMPEL COMPLIANCE WITH THEIR
LAWFUL ORDERS BY THE IMPOSITION OF CONDITIONAL PUNISHMENT - COMMONLY
REFERRED TO AS CIVIL CONTEMPT.  IN SUCH CASES, IT MAY BE SAID THAT "THE
DEFENDANT CARRIES THE KEYS TO FREEDOM IN HIS WILLINGNESS TO COMPLY WITH
THE COURT'S DIRECTIVE  ...  ."  (FN37)  NOR AM I HERE CONCERNED WITH
THE IMPOSITION OF THE TRIVIAL PUNISHMENTS TRADITIONALLY DEEMED
SUFFICIENT FOR MAINTAINING ORDER IN THE COURTROOM.  CF. UNGAR V.
SARAFITE, ANTE, P. 575.  I AM CONCERNED SOLELY WITH THE IMPOSITION,
WITHOUT TRIAL BY JURY, OF FIXED NONTRIVIAL PUNISHMENTS AFTER COMPLIANCE
WITH THE COURT'S ORDER HAS BEEN SECURED. 

THUS LIMITED, CRIMINAL CONTEMPTS ARE NOT ESSENTIALLY DIFFERENT FROM
OTHER "CRIMES" OR "CRIMINAL PROSECUTIONS."  IN EACH CASE PUNISHMENT IS
IMPOSED FOR A PAST VIOLATION OF A MANDATE OF A COORDINATE ORGAN OF
GOVERNMENT:  (FN38)  CRIMINAL CONTEMPT INVOLVES PUNISHMENT FOR
VIOLATION OF AN ORDER OF A COURT; "CRIME" INVOLVES PUNISHMENT FOR
VIOLATION OF A STATUTE ENACTED BY A LEGISLATURE.  (FN39)  I CAN SEE NO
GREATER NEED FOR CERTAIN AND PROMPT PUNISHMENT FOR THE FORMER THAN FOR
THE LATTER.  (FN40) 

IT MAY BE TRUE THAT A JUDGE CAN DISPOSE OF A CHARGE OF CRIMINAL
CONTEMPT, OR ANY OTHER CRIMINAL CHARGE, MORE EXPEDITIOUSLY AND MORE
CHEAPLY THAN A JURY. 

"BUT SUCH TRIFLING ECONOMIES AS MAY RESULT HAVE NOT GENERALLY BEEN
THOUGHT SUFFICIENT REASON FOR ABANDONING OUR GREAT CONSTITUTIONAL
SAFEGUARDS AIMED AT PROTECTING FREEDOM AND OTHER BASIC HUMAN RIGHTS OF
INCALCULABLE VALUE.  CHEAP, EASY CONVICTIONS WERE NOT THE PRIMARY
CONCERN OF THOSE WHO ADOPTED THE CONSTITUTION AND THE BILL OF RIGHTS. 
EVERY PROCEDURAL SAFEGUARD THEY ESTABLISHED PURPOSELY MADE IT MORE
DIFFICULT FOR THE GOVERNMENT TO CONVICT THOSE IT ACCUSED OF CRIMES.  ON
THEIR SCALE OF VALUES JUSTICE OCCUPIED AT LEAST AS HIGH A POSITION AS
ECONOMY."  GREEN V. UNITED STATES, SUPRA, AT 216. 

NOR ARE CRIMINAL CONTEMPTS SUBSTANTIALLY DIFFERENT FROM OTHER CRIMES
WHEN MEASURED BY THE "TESTS TRADITIONALLY APPLIED TO DETERMINE WHETHER
A GIVEN SANCTION IS PENAL OR REGULATORY IN CHARACTER  ...  ."  KENNEDY
V. MENDOZA-MARTINEZ, 372 U.S. 144, 168.  IN THE MENDOZA-MARTINEZ CASE,
THE TESTS WERE ENUMERATED IN THE FOLLOWING TERMS: 

"WHETHER THE SANCTION INVOLVES AN AFFIRMATIVE DISABILITY OR
RESTRAINT, WHETHER IT HAS HISTORICALLY BEEN REGARDED AS A PUNISHMENT,
WHETHER IT COMES INTO PLAY ONLY ON A FINDING OF SCIENTER, WHETHER ITS
OPERATION WILL PROMOTE THE TRADITIONAL AIMS OF PUNISHMENT - RETRIBUTION
AND DETERRENCE, WHETHER THE BEHAVIOR TO WHICH IT APPLIES IS ALREADY A
CRIME, WHETHER AN ALTERNATIVE PURPOSE TO WHICH IT MAY RATIONALLY BE
CONNECTED IS ASSIGNABLE FOR IT, AND WHETHER IT APPEARS EXCESSIVE IN
RELATION TO THE ALTERNATIVE PURPOSE ASSIGNED  ...  ."  ID., AT 168
169. 

CRIMINAL CONTEMPT, WHEN PUNISHED BY A NONTRIVIAL PENALTY, CERTAINLY
"INVOLVES AN AFFIRMATIVE DISABILITY OR RESTRAINT" UNDER ANY REASONABLE
DEFINITION OF THESE TERMS.  THE SANCTION IMPOSED FOR CRIMINAL CONTEMPT
HAS ALWAYS BEEN "REGARDED AS A PUNISHMENT" DESIGNED TO DETER FUTURE
DEFIANCES OF THE COURT'S AUTHORITY AND TO VINDICATE ITS DIGNITY. 
(FN41)  NO "ALTERNATIVE PURPOSE" HAS BEEN SUGGESTED TO JUSTIFY ITS
EXISTENCE.  SCIENTER IS GENERALLY REQUIRED TO SUPPORT A CHARGE OF
CRIMINAL CONTEMPT.  (FN42)  AND THE BEHAVIOR TO WHICH A CHARGE OF
CRIMINAL CONTEMPT APPLIES IS GENERALLY "ALREADY A CRIME."  (FN43) 

IN MY VIEW, THEREFORE, THERE IS NO JUSTIFICATION, EITHER IN THE
HISTORY OR POLICY OF CRIMINAL CONTEMPT OR IN THE HISTORY OR POLICY OF
THE CONSTITUTION, FOR TREATING CRIMINAL CONTEMPT DIFFERENTLY FROM OTHER
"CRIMES" OR "CRIMINAL PROSECUTIONS."  IF A CRIMINAL CONTEMPT (OR ANY
OTHER VIOLATION OF LAW) IS PUNISHABLE ONLY BY A TRIVIAL PENALTY, THEN
THE CONSTITUTION DOES NOT REQUIRE TRIAL BY JURY.  IF A VIOLATION OF LAW
IS PUNISHABLE BY A NONTRIVIAL PENALTY, THEN THE CONSTITUTION DOES
REQUIRE TRIAL BY JURY WHETHER THE VIOLATION IS LABELED CRIMINAL
CONTEMPT OR ANYTHING ELSE.  (FN44)

 C. APPLICATION OF THE CONSTITUTIONAL RULE TO THE FACTS OF THIS
CASE. 

IT REMAINS ONLY TO APPLY THIS CONCLUSION TO THE FACTS HERE.  ALTHOUGH
THE CERTIFIED QUESTION DOES NOT SPECIFY THE SEVERITY OF THE PUNISHMENT
WHICH COULD BE IMPOSED UPON THE DEFENDANTS IF THE ALLEGATIONS AGAINST
THEM ARE PROVED, IT WOULD DEFY REALITY TO ASSUME THAT THE CONTEMPT WITH
WHICH THEY ARE CHARGED IS A "TRIVIAL" ONE PUNISHABLE BY A MINOR
PENALTY.  THE SOLICITOR GENERAL OF THE UNITED STATES DESCRIBED THE
NATURE OF THE CONTEMPT TO THIS COURT IN ORAL ARGUMENT IN THE FOLLOWING
WORDS: 

"THE GOVERNOR AND LIEUTENANT GOVERNOR OF A STATE SOUGHT TO ARRAY THE
WHOLE PANOPLY OF THE STATE AGAINST A FINAL ADJUDICATION BY THE FEDERAL
COURTS.  THE CONTEMPT WITH WHICH THEY ARE CHARGED WAS RIOTING, LOSS OF
LIFE, AND THE NEED FOR FEDERAL TROOPS TO UPHOLD THE LAW OF THE LAND
...  ." 

ONE JUDGE IN THE COURT OF APPEALS SAID:  "NEVER BEFORE HAS SUCH A
CHARGE BEEN BROUGHT BY OR IN A COURT OF APPEALS  ...  AGAINST EITHER A
STATE OFFICER OR A PRIVATE CITIZEN."  (FN45)  THE CERTIFIED QUESTION
INDICATES THAT "THE ACTS CHARGED AS CONSTITUTING THE ALLEGED
DISOBEDIENCE WERE OF A CHARACTER AS TO CONSTITUTE ALSO A CRIMINAL
OFFENSE  ...  ," PUNISHABLE BY IMPRISONMENT FOR A YEAR.  18 U.S.C.
(SUPP. IV) SEC. 1509.  ANOTHER JUDGE IN THE COURT OF APPEALS SAID THAT:
"RESPONDENTS ARE CHARGED WITH WHAT AMOUNTS TO A CRIME."  330 F.2D, AT
432.  THESE INDICIA, TAKEN TOGETHER WITH THE SEVERITY OF THE SANCTION
IMPOSED IN THE CIVIL CONTEMPT CASE WHICH GREW OUT OF THE SAME CONDUCT,
(FN46) COMPEL THE CONCLUSION THAT THE CONTEMPT HERE CHARGED WAS NOT
"TRIVIAL."  IT WAS EXTRAORDINARILY SERIOUS, AMONG THE MOST SERIOUS IN
THIS NATION'S HISTORY.  IF GREEN'S CONTEMPT - JUMPING BAIL - WAS
PUNISHABLE BY IMPRISONMENT FOR THREE YEARS, AND IF PIEMONTE'S CONTEMPT
REFUSAL TO ANSWER A QUESTION BEFORE A GRAND JURY - WAS PUNISHABLE FOR
IMPRISONMENT FOR A YEAR AND A HALF, (FN47) IT WOULD BE WHOLLY
UNREALISTIC FOR US TO ASSUME THAT UNDER THE STANDARDS OF PUNISHMENT
SANCTIONED BY THIS COURT IN THE PAST THE PRESENT CONTEMPT MAY BE
CHARACTERIZED AS A PETTY OFFENSE PUNISHABLE BY NO MORE THAN A TRIVIAL
PENALTY.  (FN48)  FOR THESE REASONS, I WOULD ANSWER THE CERTIFIED
QUESTION IN THE AFFIRMATIVE AND REMAND THE CASE TO THE DISTRICT COURT
SO THAT THE ACCUSED MAY BE TRIED BY A JURY AND RECEIVE AT A TRIAL ALL
THE SAFEGUARDS WHICH OUR CONSTITUTION AFFORDS A CRIMINAL DEFENDANT. 

IN SUM, THEREFORE, I CONCLUDE THAT DEFENDANTS' TRIAL SHOULD BE BY A
JURY.  THIS WOULD ACCORD WITH THE BASIC POLICY OF CONGRESS, THAT
CONTEMPTS WHICH ARE ALSO CRIMES SHOULD BE TRIED BY A JURY.  AND IT
WOULD ACCORD WITH THE FUNDAMENTAL POLICY OF THE CONSTITUTION, THAT
CONTEMPTS WHICH ARE PUNISHABLE AS CRIMES MUST BE TRIED BY A JURY. 
(FN49) 

I REJECT THE GOVERNMENT'S "NECESSITY" ARGUMENT, THAT "THE
INDEPENDENCE OF THE FEDERAL COURTS  ... WOULD BE SERIOUSLY UNDERMINED
IF THEIR ORDERS COULD BE NULLIFIED BY AN UNSYMPATHETIC JURY."  THAT IS
BUT ANOTHER WAY OF PUTTING THE OFT-REJECTED ASSERTION AGAINST TRIAL BY
JURY, THAT SOME GUILTY MEN MAY BE ACQUITTED.  THIS POSSIBILITY,
HOWEVER, IS THE PRICE WE HAVE CHOSEN TO PAY FOR OUR CHERISHED
LIBERTIES.  "THE IMPERATIVE NECESSITY FOR SAFEGUARDING THESE RIGHTS
...  UNDER THE GRAVEST OF EMERGENCIES HAS EXISTED THROUGHOUT OUR
CONSTITUTIONAL HISTORY, FOR IT IS THEN, UNDER THE PRESSING EXIGENCIES
OF CRISIS, THAT THERE IS THE GREATEST TEMPTATION TO DISPENSE WITH
FUNDAMENTAL CONSTITUTIONAL GUARANTEES WHICH, IT IS FEARED, WILL INHIBIT
GOVERNMENTAL ACTION."  KENNEDY V. MENDOZA-MARTINEZ, 372 U.S., AT 165. 
"THE CONSTITUTION OF THE UNITED STATES IS A LAW FOR RULERS AND PEOPLE,
EQUALLY IN WAR AND IN PEACE, AND COVERS WITH THE SHIELD OF ITS
PROTECTION ALL CLASSES OF MEN, AT ALL TIMES, AND UNDER ALL
CIRCUMSTANCES."  EX PARTE MILLIGAN, 4 WALL.  2, 120-121. 

FN1  THE SHOW-CAUSE ORDER IS PRINTED INFRA, AT 760, AS APPENDIX A TO
THIS OPINION.  THE RELEVANT ORDERS IN THIS CASE ARE ALSO REPORTED IN 7
RACE REL. L. REP. 739 ET SEQ. 

FN2  THE "PRELIMINARY INJUNCTION" WAS ACTUALLY "ISSUED" ON JULY 27,
1962, AS PART OF AN OPINION SIGNED BY JUDGE WISDOM.  THE ORDER, WHICH
IS PRINTED INFRA, AT 763, AS APPENDIX B TO THIS OPINION, IS DATED JULY
28, 1962. 

FN3  83 S. CT. 10. 

FN4  THE DISTRICT COURT'S PERMANENT INJUNCTION IS PRINTED INFRA, AT
766, AS APPENDIX C TO THIS OPINION. 

FN5  THE COURT OF APPEALS' TEMPORARY RESTRAINING ORDER IS PRINTED
INFRA, AT 769, AS APPENDIX D TO THIS OPINION. 

FN6  THE STATUTE PROVIDES IN RELEVANT PART THAT: 

"WHOEVER, BY THREATS OR FORCE, WILLFULLY PREVENTS, OBSTRUCTS,
IMPEDES, OR INTERFERES WITH, OR WILLFULLY ATTEMPTS TO PREVENT,
OBSTRUCT, IMPEDE, OR INTERFERE WITH, THE DUE EXERCISE OF RIGHTS OR THE
PERFORMANCE OF DUTIES UNDER ANY ORDER, JUDGMENT, OR DECREE OF A COURT
OF THE UNITED STATES, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED
NOT MORE THAN ONE YEAR, OR BOTH." 

FN7  IN GREEN V. UNITED STATES, 356 U.S. 165, "PETITIONERS DID NOT
CONTEND THAT THEY WERE ENTITLED TO A JURY TRIAL."  ID., AT 187.  THE
COURT DID, HOWEVER, EXPLICITLY CONSIDER THE ISSUE. 

FN8  SEE UNITED STATES V. DUANE, 25 FED. CAS. 920, NO. 14,997 (1801):
"WE CONFINE OURSELVES WITHIN THE ANCIENT LIMITS OF THE LAW OF CRIMINAL
CONTEMPT, RECENTLY RETRACED BY LEGISLATIVE PROVISIONS AND JUDICIAL
DECISIONS."  AT 922. 

FN9  AN ACT CONCERNING DELINQUENTS, MAY 1667, 1 CONN. PUB. STAT. LAWS
(1808), 231-232.  THE STATUTE ALSO PERMITTED "IMPRISONMENT, BINDING TO
THE PEACE OR GOOD BEHAVIOUR TO THE NEXT COUNTY COURT."  ID., AT 231. 
(COUNTY COURTS MET TWICE ANNUALLY, SEE ID., AT 208.)  THIS WAS
APPARENTLY A CIVIL CONTEMPT SANCTION PERMITTING IMPRISONMENT ONLY UNTIL
THE CONTEMPTUOUS CONDUCT TERMINATED, LIMITED IN ANY EVENT TO ABOUT SIX
MONTHS.  THE CRIMINAL CONTEMPT SECTION WAS PART OF A MORE GENERAL TITLE
WHICH PERMITTED A JUDGE TO TRY "ANY MATTER OF A CRIMINAL NATURE  ...
WHERE THE PENALTY DOES NOT EXCEED THE SUM OF SEVEN DOLLARS."  ID., AT
230. 

FN10  AN ACT AGAINST DRUNKENNESS, ETC., APPARENTLY ENACTED IN 1737. 
1 LAWS OF DEL.  (1797), 173.  THE CRIMINAL CONTEMPT SECTION IS PART OF
A GENERAL STATUTE PERMITTING TRIAL WITHOUT A JURY FOR A NUMBER OF PETTY
OFFENSES, E.G., "DRUNKENNESS" (FIVE SHILLINGS); "PROPHANE CURSING AND
SWEARING" (FIVE SHILLINGS AND THREE HOURS IN THE STOCKS); BLASPHEMY
(TWO HOURS IN THE PILLORY "AND BE BRANDED IN HIS OR HER FOREHEAD WITH
THE LETTER B, AND BE PUBLICLY WHIPT, ON HIS OR HER BARE BACK, WITH
THIRTY-NINE LASHES WELL LAID ON").  ID., AT 173-174. 

FN11  ACT OF NOV. 1785, CHAPTER LXXII, I MD. LAWS (MAXCY 1811), 595
596. 

FN12  ACT OF FEB. 9, 1791, N.H. CONSTITUTION AND LAWS (1805), 95. 
SEE ID., AT 9.  SEE ALSO N.H. ACTS AND LAWS (1696-1725), 15. 

FN13  ACT OF 1731, NO. 552, GRIMKE'S LAWS OF SOUTH CAROLINA (1790),
129.  IT IS UNCLEAR WHETHER THIS DISCRETION WAS LIMITED BY DECISIONAL
OR STATUTORY LAW. 

FN14  ALTHOUGH FINDING NO GENERAL STATUTORY LIMITATION ON THE
PUNISHMENT WHICH COULD BE IMPOSED FOR CRIMINAL CONTEMPT IN
MASSACHUSETTS, I HAVE FOUND THE FOLLOWING DATA WHICH SUGGEST THAT THE
PUNISHMENTS THERE IMPOSED WERE PROBABLY NOT OUT OF LINE WITH THOSE
IMPOSED IN THE OTHER COLONIES.  SEE 1 MASS. ACTS AND RESOLVES (1692
1714), 282-283, ACT OF JUNE 18, 1697, LIMITING TO 10 SHILLINGS THE
PUNISHMENT WHICH COULD BE IMPOSED BY A JUSTICE OF THE PEACE FOR
CRIMINAL CONTEMPT IN REFUSING TO OBEY A SUMMONS; ID., AT 335, ACT OF
JUNE 22, 1698, LIMITING TO 40 SHILLINGS THE PUNISHMENT WHICH ANY COURT
COULD IMPOSE UPON JURORS WHO REFUSED TO OBEY A SUMMONS; ID., AT 354
355, ACT OF DEC. 10, 1698, LIMITING TO 40 SHILLINGS (OR IMPRISONMENT
FOR 48 HOURS, OR "BY SETTING IN THE STOCKS NOT EXCEEDING FOUR HOURS")
THE PUNISHMENT FOR DISOBEYING THE ORDER OF A JUSTICE OF THE PEACE TO
ASSIST IN APPREHENDING AN OFFENDER.  SEE ALSO CASE OF JOHN MATTHEWS,
CITED IN COLONIAL JUSTICE IN WESTERN MASSACHUSETTS (1639-1702):  THE
PYNCHON COURT RECORD (1961), 243 (FINE OF FIVE SHILLINGS FOR "REFUSINGE
TO OBEY A SUMMONS"; "CONTEMPTUOUS AND HIGH CARRIAGE"; "COMMANDING THE
SERVER OF THE SUMMONS OFF HIS GROUND AND HOLDING UP HIS SICKLE AT HIM
...  "); CASE OF SAMUELL FELLOWES, ID., AT 271 (1671)(FINE OF FIVE
POUNDS FOR "CONTEMPTUOUS CARRIAGE IN CORTE"); CASE OF JAMES CARVER,
ID., AT 288 (1678)(FINE OF 60 SHILLINGS FOR "HORIBLE ABUSIVE CARIAGE,"
INCLUDING THREATS, STRIKING THE CONSTABLE WITH HIS FIST AND "SAYING HE
WOULD KILL HIM AND BEATE OUT HIS BRAINES ETC.").  BUT SEE THWING V.
DENNIE, QUINCY'S REPORTS (MASS. 1761-1772), 338 (COMMITTED TO PRISON
FOR A PERIOD OF TIME NOT SPECIFIED IN THE COURT'S OPINION FOR "IN A
MOST SAVAGE MANNER ATTEMPTING TO SNATCH" PAPERS FROM THE HANDS OF HIS
COURTROOM OPPONENT, THEREBY TEARING SOME ESSENTIAL DOCUMENTS); ACT OF
OCT. 20, 1663, MASS. COLONIAL LAWS (1672), 133, RELATING TO THE PAYMENT
OF FINES FOR "PROPHANATION OF THE SABBATH, CONTEMPT OR NEGLECT OF GODS
PUBLICK WORSHIP."  THE ACT PROVIDES THAT:  "IN CASE ANY PERSON OR
PERSONS SO SENTENCED, DO NEGLECT OR REFUSE TO PAY SUCH FINE OR MULCTS
AS SHALL BE LEGALLY IMPOSED ON THEM, OR GIVE SECURITY IN COURT  ...
EVERY SUCH PERSON OR PERSONS SO REFUSING OR NEGLECTING TO SUBMIT TO THE
COURTS SENTENCE, SHALL FOR SUCH HIS CONTEMPT BE CORPORALLY PUNISHED,
ACCORDING AS THE COURT THAT HATH COGNIZANCE OF THE CASE SHALL
DETERMINE:  AND WHERE ANY ARE CORPORALLY PUNISHED, THEIR FINES SHALL BE
REMITTED."  COMPARE THE PENALTIES SOMETIMES IMPOSED BY THE "COURT" OF
ASSISTANTS OF MASSACHUSETTS BAY COLONY, WHICH WAS A LEGISLATIVE AND
EXECUTIVE BODY AS WELL AS A JUDICIAL TRIBUNAL (CASES CITED IN THE
APPENDIX TO THE OPINION OF THE COURT, ANTE, AT 711-712). 

ALTHOUGH FINDING NO COLONIAL STATUTE DESIGNATING THE PUNISHMENT FOR
CRIMINAL CONTEMPT IN MAINE, I HAVE FOUND A RULE OF COURT PROMULGATED IN
1649 WHICH STATES THAT CONTEMNERS "SHALBE FINED ACCORDING UNTO THE
DISCRETION OF THE COURT."  1 MAINE PROVINCE AND COURT RECORDS 137.  I
HAVE FOUND NO RULE PERMITTING IMPRISONMENT FOR CRIMINAL CONTEMPT. 

IN 1647, THE RHODE ISLAND GENERAL ASSEMBLY ENACTED A STATUTE
PROHIBITING THE "USE OF WORDS OF CONTEMPT AGAINST A CHIEF OFFICER,
ESPECIALLY IN THE EXECUTION OF HIS OFFICE  ...  ."  THE PENALTY FOR
THIS OFFENSE WAS BEING "BOUND TO HIS GOOD BEHAVIOR, SO TO REMAIN FOR
THREE MONTHS SPACE, OR THE NEXT COURT FOLLOWING."  TRIAL WAS BY A JURY
OF "HIS PEERS," AND NOT BY SUMMARY PROCEEDING.  R.I. CODE OF LAWS
(1647) 24.  CF. ID., AT 52. 

FN15  SEE, E.G., CASE OF THEUNIS THEW (N.Y. SUPREME COURT, 1763), IN
GOEBEL AND NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK (1944), 243
(FINE OF 200 POUNDS FOR CONTEMPT IN REFUSING TO ANSWER QUESTIONS); CASE
OF WILLIAM DOBBS AND WILLIAM PAULDING (N.Y. SUPREME COURT, 1764), IBID.
(FINE OF 200 POUNDS FOR CONTEMPT IN REFUSING TO ANSWER QUESTIONS); CASE
OF JOHN MOSIER (SUFFOLK COURT OF OYER AND TERMINER, 1717), ID., AT 606
("JOHN MOSIER WAS ORDERED TO BE COMMITTED INTO YE SHERIFFS CUSTODY AND
TO SUFFER A WEEKS IMPRISONMENT FOR AFFRONTING THE KINGS JUSTICES IN
GOING TO HOLD COURT."  HE WAS RELEASED, HOWEVER, THE FOLLOWING DAY);
KING V. MARY RICHARDSON (N.Y. KINGS COUNTY COURT, 1693), ID., AT 605
(UNSPECIFIED FINE FOR UNSPECIFIED CONTEMPT); KING V. TIEBOUT (N.Y.
COURT OF QUARTER SESSIONS, 1695), IBID. (UNSPECIFIED FINE FOR
UNSPECIFIED CONTEMPT); CASE OF JOHN TENBROEK (N.Y. SUPREME COURT,
1729), ID., AT 606 (FINE OF 10 POUNDS FOR CONTEMPT IN "HAVING PRIVATELY
GIVEN VICTUALS TO THE JURY"); FEREE V. STROME, 1 YEATES 303 (PA.
1793)("REPRIMANDED  ...  AND DISMISSED WITHOUT ANY FINE" FOR FAILING TO
RESPOND TO SUBPOENA); RESPUBLICA V. OSWALD, 1 DALL.  343 (PA.
1788)(IMPRISONMENT FOR ONE MONTH AND FINE OF 10 POUNDS FOR CONTEMPT BY
PUBLICATION); TERRITORY V. THIERRY, 1 MARTIN 55 (LA. 1810)(IMPRISONMENT
FOR 10 DAYS AND FINE OF $50 FOR "GROSSLY AND INDECENTLY ABUSIVE"
CONTEMPT BY PUBLICATION); STATE V. NOEL, T.U.P. CHARLTON'S REPORTS 43,
65 (GA. 1806)(FINES OF $50 AND $10 FOR "CONTEMPTS IN DISOBEYING THE
ORDER OF" THE SUPERIOR COURT); CASE OF PRIEST AND BONET (1702), CITED
IN SCOTT, CRIMINAL LAW IN COLONIAL VIRGINIA (1930), 173 (THREE HOURS IN
STOCKS FOR FIGHTING NEAR THE COURT); CASE OF THOMAS SMITH (1697), IBID.
(ONE HOUR IN STOCKS FOR THREATENING THE FOREMAN OF A JURY); CASE OF
MATTHEW KELLEY (1773), ID., AT 174 (FINED FIVE POUNDS FOR REFUSAL TO
OBEY A WARRANT); CASE OF MARY RUSSELL (OCT. 6, 1703), CITED IN ID., AT
172 (ORDERED TO JAIL UNTIL SHE GAVE BOND FOR FUTURE GOOD BEHAVIOR FOR
CLAIMING THAT SHE HAD "RECEIVED AS LITTLE JUSTICE AS SHE WOULD HAVE IN
HELL WITH THE DEVIL SITTING AS JUDGE"); STATE V. STONE, 3 HARRIS AND
MCHENRY'S REPORTS (MD. 1792), 115 (FINE OF 20 SHILLINGS AGAINST A LOWER
COURT JUDGE FOR REFUSING TO OBEY THE MANDATE OF A HIGHER COURT); STATE
V. KEENE, 11 LA. 596, 601 (FINE OF $50 AND IMPRISONMENT "DURING THE
SPACE OF TEN DAYS," FOR A CONTEMPT DESCRIBED BY THE COURT IN THE
FOLLOWING TERMS:  "WE DO NOT REMEMBER A CASE OF GROSSER CONTEMPT, AND
WE DOUBT WHETHER ANY ARE TO BE FOUND IN THE BOOKS."  THE ANNOTATION OF
THE OFFICIAL COURT REPORTER STATES THAT "THE MAXIMUM PUNISHMENT FOR A
CONTEMPT OF COURT, COMMITTED BY A PARTY TO A SUIT, IS TEN DAYS
IMPRISONMENT, AND A FINE OF FIFTY DOLLARS AND THE COSTS."  ID., AT
596).  MONROE V. HARKNESS, 1 CRANCH C.C. (1803), 157-158 (IMPRISONMENT
FOR SIX DAYS FOR VIOLATING AN INJUNCTION); UNITED STATES V. CATON, 25
FED. CAS. 350, NO. 14,758 (1803)(FINE OF $5 AND ORDERED TO GIVE
SECURITY OF $100 FOR HIS GOOD BEHAVIOR, FOR REFUSING TO ANSWER
QUESTIONS, BEHAVING IN AN "INSOLENT MANNER," AND THREATENING "SOME OF
THE GRAND JURORS"); CASE OF JOHN ROUSBY, PROCEEDINGS OF THE PROVINCIAL
COURT OF MD. (1675), ARCH.  OF MD. LXV 585 (FINE OF 100 POUNDS OF
TOBACCO FOR CONTEMPTUOUS SPEECH BY AN ATTORNEY IN COURT); CASE OF JOHN
CHERMAN, PROCEEDINGS OF THE CHARLES COUNTY COURT OF MD. (1660), ARCH. 
OF MD. LIII 84 (FINE OF 10 POUNDS OF TOBACCO FOR CONTEMPT IN
"PROPHAINLY TAKINGE THE NAME OF GOD IN VAINE IN OPEN COURTE"); CASE OF
JON SEYBREY, PROCEEDINGS OF THE CHANCERY COURT OF MD. (1669), ARCH.  OF
MD. LI 8 (FINE OF 12 SHILLINGS, SIXPENCE FOR FAILURE TO RESPOND TO
SUMMONS); CASE OF LEWIS MORRICE (NEW JERSEY COURT OF COMMON RIGHT,
1698), I JOURNAL OF THE COURTS OF COMMON RIGHT AND CHANCERY OF EAST NEW
JERSEY, 1683-1702, 311 (FINE OF 50 POUNDS FOR RESISTING ARREST AND
DENYING THE AUTHORITY OF THE COURT); UNITED STATES V. DUANE, 25 FED.
CAS. 920, NO. 14,997 (1801)(IMPRISONMENT FOR 30 DAYS FOR AGGRAVATED
CONTEMPT BY PUBLICATION); UNITED STATES V. EMERSON, 25 FED. CAS. 1012,
NO. 15,050 (1831)(FINE OF $5 FOR FIGHTING AND SHOUTING IN COURT);
UNITED STATES V. CARTER, 25 FED. CAS. 313, NO. 14,740 (1829)(FINE OF $1
FOR THREATENING A WITNESS); WEIBERG V. THE ST. OLOFF, 29 FED.  CAS.
591, NO. 17,357 (1790)(FINE OF $20 FOR "REFUSING TO OBEY THE PROCESS OF
THE COURT, AND IN CONFINING IN IRONS A SUITOR WHILST UNDER THE
PROTECTION OF THE LAWS ...  ").  SEE ALSO ADDITIONAL AUTHORITY CITED IN
THE APPENDIX TO THE OPINION OF THE COURT. 

FN16  ACT OF JUNE 13, 1799, ELMER, DIGEST OF N.J. LAWS (1838), 59. 

FN17  ACT OF DEC. 19, 1793, 1 DIGEST OF THE STATS. OF KY. (1822),
301. 

FN18  ACT OF APR. 3, 1809, LAWS OF PA. (1808-1812), 55-56. 

FN19  N.Y. REV. STATS. (1829), 276, 278.  MORE EXTENSIVE PUNISHMENT
WAS PERMITTED UPON INDICTMENT AND TRIAL BY JURY. 

FN20  TERRITORIAL ACT OF 1807, AIKIN'S DIGEST OF THE LAWS OF ALA.
(1833-1835 SUPP.), 87-88. 

FN21  ACT OF APR. 16, 1831, SUPP. TO THE REV. CODE OF VA. (1833),
144.  THE APPENDIX TO THE OPINION OF THE COURT CORRECTLY NOTES THAT THE
PUNISHMENT SANCTIONED FOR OTHER CATEGORIES OF CONTEMPT WITHIN THIS
STATUTE - VIOLENCE OR THREATS OF VIOLENCE TO JUDGES, WITNESSES OR
JURORS, MISBEHAVIOR OF COURT OFFICERS, AND DISOBEDIENCE OF A COURT
ORDER - WAS NOT SPECIFICALLY LIMITED.  ANTE, AT 723. 

AT THE TIME OF THE ENACTMENT OF THIS AND SIMILAR STATUTES, THERE WERE
GENERALLY NO FACTUAL DISPUTES FOR RESOLUTION BY A JURY IN CRIMINAL
CONTEMPT CASES; FOR IF THE ALLEGED CONTEMNER DENIED UNDER OATH THE
FACTUAL ALLEGATIONS AGAINST HIM, THE CONTEMPT CHARGE WAS DISMISSED, AND
HE WAS SUBJECT TO INDICTMENT FOR PERJURY.  SEE, E.G., CURTIS AND
CURTIS, THE STORY OF A NOTION IN THE LAW OF CRIMINAL CONTEMPT, 41 HARV.
L. REV. 51, 63-64; 4 BLACKSTONE, COMMENTARIES, 288; WELLS V.
COMMONWEALTH, 21 GRATTAN'S REP. (VA.  1871), 500. 

"CONTEMPT OF COURT WAS SHARPLY REPROVED IN COLONIAL VIRGINIA.  THE
LEAST THAT WAS REQUIRED WAS AN OPEN APOLOGY, AND THE COURT OFTEN ADDED
A FINE, OR COMMITMENT TO PRISON, USUALLY TO LAST UNTIL BOND FOR GOOD
BEHAVIOR WAS FURNISHED.  SOMETIMES AN HOUR OR TWO IN THE STOCKS WAS
PRESCRIBED."  SCOTT, CRIMINAL LAW IN COLONIAL VIRGINIA (1930), 171
172. 

FN22  E.G., REV. STATS. OF MICH. (1846), TIT. XXI, C. 96, PP. 428-430
(30 DAYS' IMPRISONMENT, $250 FINE); CHASE, STATS. OF OHIO (1788-1833),
C. 823, SECS. 49, 53, PP. 1701-1702 (FINE OF $200); IOWA CODE (1850
1851), TIT. 18, C. 94, SEC. 1600, P. 237 (ONE DAY'S IMPRISONMENT, $50
FINE); WIS. REV. STATS. (1849), C. 87, SEC. 8, P. 439 (30 DAYS'
IMPRISONMENT, $250 FINE); MO. REV. STATS. (1835), ACT OF MAR. 7, 1835,
SEC.  58, P. 160 (10 DAYS' IMPRISONMENT, $50 FINE); MINN. TERR.  REV. 
STATS. (1851), C. 92, SEC. 12, P. 456 (SIX MONTHS' IMPRISONMENT, $250
FINE); MISS.  STATS.  (1840), C. 40, SEC. 26, P. 486 (IMPRISONMENT
DURING "THE TERM OF THE COURT AT WHICH THE CONTEMPT SHALL HAVE BEEN
COMMITTED"; COURTS HELD TWO TERMS ANNUALLY; $100 FINE); THOMSON'S
DIGEST OF THE LAWS OF FLA. (1847), 3D DIV., TIT. I, C. 1, SEC. 2, P.
321 (30 DAYS' IMPRISONMENT, $100 FINE); ARK. STATS. (1837), C. 43, SEC.
38, PP. 234-235 (10 DAYS' IMPRISONMENT, $50 FINE); BATTLE'S REVISAL,
PUB. STATS. OF N.C. (1873), ACT OF 1868, C. 24, SEC. 2, P. 257
(IMPRISONMENT FOR 30 DAYS, FINE OF $250); LAWS OF VT. (1824), ACT OF
NOV. 11, 1818, C. 31, SEC. 27, P. 259 (FINE OF $200). 

CF. GEORGIA STATS. (FEB. 1799), AN ACT TO AMEND AN ACT, ENTITLED "AN
ACT TO REVISE AND AMEND THE JUDICIARY SYSTEM OF THIS STATE," SEC. 26,
P. 30, LIMITING THE PUNISHMENT WHICH COURTS MAY IMPOSE "IN CASE OF A
JURY COMMITTING A CONTEMPT" TO "A SUM NOT EXCEEDING ONE HUNDRED
DOLLARS."  SEE ALSO SEC. 20, P. 26, PROVIDING FOR "AN ATTACHMENT
AGAINST  ...  DEFAULTING WITNESS" AND LIMITING THE PUNISHMENT TO $300. 
SEE ALSO GEORGIA STATS. (1851) 647, ACT OF DEC. 14, 1811, SEC. XXVII,
LIMITING THE PUNISHMENT WHICH COULD BE IMPOSED BY JUSTICES OF THE PEACE
FOR CRIMINAL CONTEMPTS TO "ANY SUM NOT EXCEEDING $2, OR IMPRISONMENT
FOR A TERM NOT EXCEEDING TWO DAYS FOR EACH OFFENCE  ...  ." 

FN23  SEE, E.G., CASES CITED, SUPRA, NOTE 14. 

FN24  ELMER'S DIGEST OF N.J. LAW (1838), ACT OF MAR. 16, 1798, SECS.
8-11, PP. 588, 589. 

FN25  PATERSON'S LAWS OF N.J. (1800) 410.  SEE ALSO ID., AT 329,
333. 

FN26  4 COLONIAL LAWS OF N.Y. (1760) 455. 

FN27  1787 LAWS (N.Y.), C. 97. 

FN28  1 COLONIAL LAWS OF N.Y. (1708) 617. 

FN29  1785 LAWS (N.Y.), CC. 31, 40, 47. 

FN30  1752 MD. SESS. LAWS, 5. 

FN31  1785 MD. SESS. LAWS, C. 15, SEC. 15. 

FN32  ACT OF OCT. 1777, C. 24, SEC. 2. 

FN33  1785 VA. STATS. (OCT. SESS.), C. 1, SEC. 8; C. 4, SEC. 3; C.
59; 1787 VA. STATS.  (OCT. SESS.), C. 48, SEC. 13. 

FN34  SEE GREEN V. UNITED STATES, 356 U.S. 165, 209-210 (DISSENTING
OPINION OF MR. JUSTICE BLACK):

"IFIND IT DIFFICULT TO UNDERSTAND HOW IT CAN BE MAINTAINED THAT THE
SAME PEOPLE WHO MANIFESTED SUCH GREAT CONCERN FOR TRIAL BY JURY AS TO
EXPLICITLY EMBED IT IN THE CONSTITUTION FOR EVERY $20 CIVIL SUIT COULD
HAVE INTENDED THAT THIS CHERISHED METHOD OF TRIAL SHOULD NOT BE
AVAILABLE TO THOSE THREATENED WITH LONG IMPRISONMENT FOR THE CRIME OF
CONTEMPT.  I AM CONFIDENT THAT IF THERE HAD BEEN ANY INKLING THAT THE
FEDERAL COURTS ESTABLISHED UNDER THE CONSTITUTION COULD IMPOSE HEAVY
PENALTIES, AS THEY NOW DO, FOR VIOLATION OF THEIR SWEEPING AND FAR
RANGING MANDATES WITHOUT GIVING THE ACCUSED A FAIR TRIAL BY HIS FELLOW
CITIZENS IT WOULD HAVE PROVOKED A STORM OF PROTEST, TO PUT IT MILDLY. 
WOULD ANY FRIEND OF THE CONSTITUTION HAVE BEEN FOOLHARDY ENOUGH TO TAKE
THE FLOOR OF THE RATIFYING CONVENTION IN VIRGINIA OR ANY OF A HALF
DOZEN OTHER STATES AND EVEN SUGGEST SUCH A POSSIBILITY?" 

FN35  THE "HISTORICAL ERROR" ON WHICH THE IMPOSITION OF SERIOUS
PENALTIES FOR CRIMINAL CONTEMPTS WITHOUT A JURY TRIAL RESTS IS NOT OF
THE SAME CHARACTER OR DURATION AS THE "HISTORICAL ERROR" DISCUSSED IN
GREEN V. UNITED STATES, SUPRA, AT 185, 190, 202.  THERE THE ALLEGED
"ERROR" OCCURRED BEFORE THE ADOPTION OF THE CONSTITUTION AND HAS BEEN A
PART OF ENGLISH AND AMERICAN LAW FOR ALMOST TWO CENTURIES.  THE COURT
WAS NOT PREPARED TO OVERTURN "AT LEAST TWO SCORE CASES IN THIS COURT." 
ID., AT 190.  HERE THE "ERROR" HAS ONLY RECENTLY BECOME MANIFEST AND
HAS NEVER BEEN EXPLICITLY LEGITIMATED BY THIS COURT. 

THE IMPOSITION OF SERIOUS PENALTIES FOR CRIMINAL CONTEMPTS IS A
RELATIVELY RECENT PHENOMENON.  FROM THE FOUNDATION OF THE REPUBLIC
UNTIL 1957 I AM AWARE OF ONLY TWO ISOLATED INSTANCES OF IMPRISONMENT
FOR LONGER THAN SIX MONTHS FOR CRIMINAL CONTEMPT BROUGHT TO THE
ATTENTION OF THIS COURT.  IN RE SAVIN, 131 U.S. 267 (ONE YEAR); HILL V.
UNITED STATES EX REL. WEINER, 300 U.S. 105 (TWO YEARS).  SINCE 1957,
HOWEVER, OUR ATTENTION HAS BEEN CALLED TO AT LEAST SIX INSTANCES WHERE
IMPRISONMENT OF A YEAR OR MORE WAS IMPOSED.  NILVA V. UNITED STATES,
352 U.S. 385 (ONE YEAR AND ONE DAY); YATES V. UNITED STATES, 355 U.S.
66 (ONE YEAR); GREEN V. UNITED STATES, 356 U.S. 165 (THREE YEARS);
BROWN V. UNITED STATES, 359 U.S. 41 (15 MONTHS); LEVINE V. UNITED
STATES, 362 U.S. 610 (ONE YEAR); PIEMONTE V. UNITED STATES, 367 U.S.
556 (18 MONTHS).  BY HOLDING THAT NO NONTRIVIAL PENALTY MAY BE IMPOSED
FOR CRIMINAL CONTEMPT WITHOUT A TRIAL BY JURY, WE WOULD BE CORRECTING A
FUNDAMENTAL, BUT ONLY RECENTLY MANIFESTED, HISTORICAL ERROR. 

FN36  AN ANALOGOUS SITUATION IS PRESENTED BY THE CRIMINAL ENFORCEMENT
OF THE LAWS RELATING TO THE SALE AND TAXATION OF LIQUOR.  AT THE TIME
OF THE CONSTITUTION VIOLATIONS OF THE LIQUOR LAWS OF THE VARIOUS STATES
GENERALLY CARRIED WITH THEM TRIVIAL PENALTIES AND WERE DEEMED PETTY
OFFENSES, TRIABLE WITHOUT A JURY.  E.G., FAILURE TO PAY TAX, SEE PA.
LAWS OF 1712-1713, C. 195, SEC. 2 (FIVE-POUND FINE); PA. LAWS OF 1719,
C. 239, SEC. 4 (20-SHILLING FINE); 1756 MD. SESS. LAWS, 12 (20-POUND
FINE); UNLICENSED SALE OF LIQUOR, SEE NEW YORK LAWS OF 1781, C. 27 (10
POUND FINE); 1757 MD. SESS. LAWS, 6 (30-SHILLING FINE); SELLING LIQUOR
ABOVE PRICE FIXED, SEE PA. LAWS OF 1718, C. 235 (40-SHILLING FINE);
SELLING LIQUOR TO MINORS OR SLAVES, SEE PA. LAWS OF 1721, C. 244, SEC.
3 (FIVE-POUND FINE FOR THIRD OFFENSE); MD. LAWS 1735, ARCH.  OF MD.
XXXIX 292 (10-SHILLING FINE); OR AT PROHIBITED PLACES, SEE 4 COLONIAL
LAWS OF NEW YORK (1768), C. 1380 (FIVE-POUND FINE).  NOW, HOWEVER,
VIOLATIONS OF AT LEAST SOME LIQUOR LAWS ARE PUNISHED SO SEVERELY THAT
THEY CANNOT BE DEEMED TRIVIAL OFFENSES.  CERTAINLY NO ONE WOULD ARGUE
THAT IT IS CONSTITUTIONALLY PERMISSIBLE TO IMPOSE WITHOUT TRIAL BY JURY
SEVERE PUNISHMENTS FOR VIOLATION OF THESE LAWS SIMPLY BECAUSE TRIVIAL
PUNISHMENTS WERE IMPOSED WITHOUT TRIAL BY JURY AT THE TIME OF THE
CONSTITUTION FOR VIOLATION OF SIMILAR OR EVEN IDENTICAL LAWS.  SEE
DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617, 625.    FN37  "SUCH
COERCION, WHERE THE DEFENDANT CARRIES THE KEYS TO FREEDOM IN HIS
WILLINGNESS TO COMPLY WITH THE COURT'S DIRECTIVE, IS ESSENTIALLY A
CIVIL REMEDY DESIGNED FOR THE BENEFIT OF OTHER PARTIES AND HAS QUITE
PROPERLY BEEN EXERCISED FOR CENTURIES TO SECURE COMPLIANCE WITH
JUDICIAL DECREES.  SEE UNITED STATES V. UNITED MINE WORKERS OF AMERICA,
330 U.S. 258, 330-332 (DISSENTING AND CONCURRING OPINION).  INSTEAD, AT
STAKE HERE IS THE VALIDITY OF A CRIMINAL CONVICTION FOR DISOBEDIENCE OF
A COURT ORDER PUNISHED BY A LONG, FIXED TERM OF IMPRISONMENT.  IN MY
JUDGMENT THE DISTINCTION BETWEEN CONDITIONAL CONFINEMENT TO COMPEL
FUTURE PERFORMANCE AND UNCONDITIONAL IMPRISONMENT DESIGNED TO PUNISH
PAST TRANSGRESSIONS IS CRUCIAL, ANALYTICALLY AS WELL AS HISTORICALLY,
IN DETERMINING THE PERMISSIBLE MODE OF TRIAL UNDER THE CONSTITUTION." 
GREEN V. UNITED STATES, SUPRA, AT 197-198 (DISSENTING OPINION OF MR.
JUSTICE BLACK).  BUT SEE GOLDFARB, THE CONTEMPT POWER (1963), 49-67. 

FN38  "UNDER THE CONSTITUTION COURTS ARE MERELY ONE OF THE COORDINATE
AGENCIES WHICH HOLD AND EXERCISE GOVERNMENTAL POWER.  THEIR DECREES ARE
SIMPLY ANOTHER FORM OF SOVEREIGN DIRECTIVE AIMED AT GUIDING THE
CITIZEN'S ACTIVITY.  I CAN PERCEIVE NOTHING WHICH PLACES THESE DECREES
ON ANY HIGHER OR DIFFERENT PLANE THAN THE LAWS OF CONGRESS OR THE
REGULATIONS OF THE EXECUTIVE INSOFAR AS PUNISHMENT FOR THEIR VIOLATION
IS CONCERNED  ...  .  UNFORTUNATELY JUDGES AND LAWYERS HAVE TOLD EACH
OTHER THE CONTRARY SO OFTEN THAT THEY HAVE COME TO ACCEPT IT AS THE
GOSPEL TRUTH."  GREEN V. UNITED STATES, SUPRA, AT 218-219 (DISSENTING
OPINION OF MR. JUSTICE BLACK). 

FN39  IN THIS CASE DEFENDANTS' CONDUCT IS ALLEGED TO BE A VIOLATION
OF BOTH A COURT ORDER AND A LEGISLATIVE ENACTMENT. 

FN40  "I WOULD GO AS FAR AS ANY MAN IN FAVOR OF THE SHARPEST AND MOST
SUMMARY ENFORCEMENT OF ORDER IN COURT AND OBEDIENCE TO DECREES, BUT
WHEN THERE IS NO NEED FOR IMMEDIATE ACTION CONTEMPTS ARE LIKE ANY OTHER
BREACH OF LAW AND SHOULD BE DEALT WITH AS THE LAW DEALS WITH OTHER
ILLEGAL ACTS."  TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402,
425-426 (DISSENTING OPINION OF MR. JUSTICE HOLMES, CONCURRED IN BY MR.
JUSTICE BRANDEIS). 

FN41  SEE, E.G., 4 BLACKSTONE, COMMENTARIES, PP. 283-285. 

FN42  SEE, E.G., IN RE RICE, 181 F. 217.  SCIENTER WAS CHARGED IN
THIS CASE, SEE APPENDIX A, INFRA, AT 761. 

FN43  THE BEHAVIOR WITH WHICH DEFENDANTS ARE HERE CHARGED IS ALREADY
A CRIME.  ANTE, AT 729, 735-736. 

FN44  I NEED NOT AT THIS JUNCTURE CONSIDER WHAT CONSTITUTES A TRIVIAL
PENALTY.  THE COURT CONSIDERED THIS PROBLEM IN DISTRICT OF COLUMBIA V.
CLAWANS, 300 U.S. 617.  RESPONDENT THERE WAS SENTENCED "TO PAY A FINE
OF $300 OR TO BE CONFINED IN JAIL FOR SIXTY DAYS" FOR ENGAGING IN THE
BUSINESS OF SELLING SECONDHAND PROPERTY WITHOUT A LICENSE, AN OFFENSE
"PUNISHABLE BY A FINE OF NOT MORE THAN $300 OR IMPRISONMENT FOR NOT
MORE THAN NINETY DAYS."  ID., AT 623.  THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA IN A UNANIMOUS EN BANC DECISION,
NOTED THAT "IF, INSTEAD OF THREE MONTHS IN JAIL, THE PUNISHMENT
PROVIDED WERE SIX MONTHS OR A YEAR, THE PROBLEM WOULD BE SIMPLER.  SO,
ALSO, IF THE PUNISHMENT WERE, LET US SAY, TEN DAYS IN JAIL."  IT HELD,
HOWEVER, THAT IMPRISONMENT FOR THREE MONTHS "CANNOT BE SAID TO BE PETTY
OR TRIVIAL."  66 APP. D.C. 11, 14, 84 F.2D 265, 268.  THAT DECISION WAS
REVERSED BY A DIVIDED SUPREME COURT.  THE COURT SAID: "WE MAY DOUBT
WHETHER SUMMARY TRIAL WITH PUNISHMENT OF MORE THAN SIX MONTHS'
IMPRISONMENT, PRESCRIBED BY SOME PRE-REVOLUTIONARY STATUTES, IS
ADMISSIBLE WITHOUT CONCLUDING THAT A PENALTY OF NINETY DAYS IS TOO
MUCH."  300 U.S., AT 627-628.  THE COURT ALSO CAUTIONED: 

"WE ARE AWARE THAT THOSE STANDARDS OF ACTION AND OF POLICY WHICH FIND
EXPRESSION IN THE COMMON AND STATUTE LAW MAY VARY FROM GENERATION TO
GENERATION.  SUCH CHANGE HAS LED TO THE ABANDONMENT OF THE LASH AND THE
STOCKS, AND WE MAY ASSUME, FOR PRESENT PURPOSES, THAT COMMONLY ACCEPTED
VIEWS OF THE SEVERITY OF PUNISHMENT BY IMPRISONMENT MAY BECOME SO
MODIFIED THAT A PENALTY ONCE THOUGHT TO BE MILD MAY COME TO BE REGARDED
AS SO HARSH AS TO CALL FOR THE JURY TRIAL, WHICH THE CONSTITUTION
PRESCRIBES, IN SOME CASES WHICH WERE TRIABLE WITHOUT A JURY WHEN THE
CONSTITUTION WAS ADOPTED."  ID., AT 627. 

FN45  330 F.2D 369, 393. 

FN46 THE CIVIL CONTEMPT JUDGMENT PROVIDED FOR A FINE OF $10,000 A DAY
AGAINST GOVERNOR BARNETT AND $5,000 A DAY AGAINST LIEUTENANT GOVERNOR
JOHNSON UNLESS THEY COMPLIED WITH THE COURT'S ORDER BY A CERTAIN FIXED
TIME. 

FN47  SEE GREEN V. UNITED STATES, SUPRA, AND PIEMONTE V. UNITED
STATES, SUPRA. 

FN48  THE RIGHT TO TRIAL BY JURY DEPENDS NOT ON THE SEVERITY OF THE
PUNISHMENT ACTUALLY IMPOSED, BUT RATHER ON THE SEVERITY OF THE
PUNISHMENT WHICH COULD LEGALLY HAVE BEEN IMPOSED.  DISTRICT OF COLUMBIA
V. CLAWANS, 300 U.S. 617, 623. 

FN49  AN ANSWER TO THE CERTIFIED QUESTION DOES NOT PREVENT
DEFENDANTS, IF THEY ARE CONVICTED, FROM RAISING OTHER ISSUES, NOT
INCLUDED IN THE CERTIFICATE, ON APPEAL FROM THEIR CONVICTIONS. 

                      APPENDIX A TO OPINION OF MR. JUSTICE

   GOLDBERG, DISSENTING. 

COURT OF APPEALS' ORDER TO SHOW CAUSE. 

THIS COURT HAVING ENTERED AN ORDER ON SEPTEMBER 18, 1962, IN THE CASE
OF JAMES H. MEREDITH, ET AL V. CHARLES DICKSON FAIR, ET AL, NO. 19475,
DESIGNATING AND AUTHORIZING THE UNITED STATES TO APPEAR AND PARTICIPATE
IN THAT CASE AS AMICUS CURIAE WITH THE RIGHT TO SUBMIT PLEADINGS,
EVIDENCE, ARGUMENTS AND BRIEFS, AND TO INITIATE SUCH FURTHER
PROCEEDINGS, INCLUDING PROCEEDINGS FOR INJUNCTIVE RELIEF, AS MIGHT BE
APPROPRIATE IN ORDER TO MAINTAIN AND PRESERVE THE DUE ADMINISTRATION OF
JUSTICE AND THE INTEGRITY OF THE JUDICIAL PROCESSES OF THE UNITED
STATES, AND: 

THE ATTORNEY GENERAL HAVING INSTITUTED, PURSUANT TO THIS COURT'S
ORDER OF SEPTEMBER 18, 1962, AN ACTION IN THE NAME OF AND ON BEHALF OF
THE UNITED STATES, AS AMICUS CURIAE, WHICH ACTION WAS ENTITLED UNITED
STATES V. STATE OF MISSISSIPPI, ET AL, RESTRAINING THE STATE OF
MISSISSIPPI AND ROSS R. BARNETT, THEIR AGENTS, EMPLOYEES, OFFICERS,
SUCCESSORS, AND ALL PERSONS IN ACTIVE CONCERT OR PARTICIPATION WITH
THEM, FROM INTERFERING WITH OR OBSTRUCTING THE ENJOYMENT OF RIGHTS OR
THE PERFORMANCE OF DUTIES UNDER THE ORDER OF THIS COURT OF JULY 28,
1962, IN THE CASE OF MEREDITH V. FAIR, AND A SIMILAR ORDER OF THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI IN THAT CASE,
REQUIRING THE ENROLLMENT OF JAMES H. MEREDITH AT THE UNIVERSITY OF
MISSISSIPPI, AND: 

THIS COURT HAVING ORDERED ON NOVEMBER 15, 1962, THAT THE ATTORNEY
GENERAL, AND SUCH ATTORNEYS IN THE DEPARTMENT OF JUSTICE AS HE MAY
DESIGNATE, BE APPOINTED TO INSTITUTE AND PROSECUTE CRIMINAL CONTEMPT
PROCEEDINGS AGAINST ROSS R. BARNETT AND PAUL B. JOHNSON, JR., AND: 

PROBABLE CAUSE HAVING BEEN MADE TO APPEAR FROM THE APPLICATION OF THE
ATTORNEY GENERAL FILED DECEMBER 21, 1962, IN THE NAME OF AND ON BEHALF
OF THE UNITED STATES THAT ON SEPTEMBER 25, 1962, ROSS R. BARNETT,
HAVING BEEN SERVED WITH AND HAVING ACTUAL NOTICE OF THIS COURT'S
TEMPORARY RESTRAINING ORDER OF SEPTEMBER 25, 1962, WILFULLY PREVENTED
JAMES H. MEREDITH FROM ENTERING THE OFFICES OF THE BOARD OF TRUSTEES OF
THE UNIVERSITY OF MISSISSIPPI IN JACKSON, MISSISSIPPI, AND THEREBY
DELIBERATELY PREVENTED JAMES H. MEREDITH FROM ENROLLING AS A STUDENT IN
THE UNIVERSITY PURSUANT TO THIS COURT'S ORDER OF JULY 28, 1962; THAT ON
SEPTEMBER 26, 1962, PAUL B. JOHNSON, JR., ACTING UNDER THE
AUTHORIZATION AND DIRECTION OF ROSS R. BARNETT, AND AS HIS AGENT AND AS
AN AGENT AND OFFICER OF THE STATE OF MISSISSIPPI, AND WHILE HAVING
ACTUAL NOTICE OF THE TEMPORARY RESTRAINING ORDER OF SEPTEMBER 25, 1962,
WILFULLY PREVENTED JAMES H. MEREDITH FROM ENTERING THE CAMPUS OF THE
UNIVERSITY OF MISSISSIPPI IN OXFORD, MISSISSIPPI, AND THEREBY
DELIBERATELY PREVENTED JAMES H. MEREDITH FROM ENROLLING AS A STUDENT IN
THE UNIVERSITY PURSUANT TO THE ORDERS OF THIS COURT; THAT ON SEPTEMBER
27, 1962, ROSS R. BARNETT AND PAUL B. JOHNSON, JR. WILFULLY FAILED TO
TAKE SUCH MEASURES AS WERE NECESSARY TO MAINTAIN LAW AND ORDER UPON THE
CAMPUS OF THE UNIVERSITY OF MISSISSIPPI AND DID, INSTEAD, DIRECT AND
ENCOURAGE CERTAIN MEMBERS OF THE MISSISSIPPI HIGHWAY SAFETY PATROL,
SHERIFFS AND DEPUTY SHERIFFS AND OTHER OFFICIALS OF THE STATE OF
MISSISSIPPI TO OBSTRUCT AND PREVENT THE ENTRY OF JAMES H. MEREDITH UPON
THE CAMPUS OF THE UNIVERSITY THAT DAY; THAT ON SEPTEMBER 30, 1962, ROSS
R. BARNETT, KNOWING OF THE PLANNED ENTRY OF JAMES H. MEREDITH UPON THE
CAMPUS OF THE UNIVERSITY OF MISSISSIPPI, KNOWING THAT DISORDERS AND
DISTURBANCES HAD ATTENDED AND WOULD ATTEND SUCH ENTRY, AND KNOWING THAT
ANY FAILURE OF THE MISSISSIPPI HIGHWAY SAFETY PATROL TO TAKE ALL
POSSIBLE MEASURES FOR THE MAINTENANCE OF PEACE AND ORDER UPON THE
CAMPUS COULD AND WOULD RESULT IN INTERFERENCES WITH AND OBSTRUCTIONS TO
THE CARRYING OUT OF THE COURT'S ORDER OF JULY 28, 1962, WILFULLY FAILED
TO EXERCISE HIS RESPONSIBILITY, AUTHORITY, AND INFLUENCE AS GOVERNOR TO
MAINTAIN LAW AND ORDER UPON THE CAMPUS OF THE UNIVERSITY OF
MISSISSIPPI; AND THAT ALL OF SAID ACTS, OMISSIONS AND CONDUCT OF ROSS
R. BARNETT AND PAUL B. JOHNSON, JR., WERE FOR THE PURPOSE OF PREVENTING
COMPLIANCE WITH THIS COURT'S ORDER OF JULY 28, 1962, AND OF THE SIMILAR
ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
MISSISSIPPI, ENTERED ON SEPTEMBER 13, 1962, AND WERE IN WILFUL
DISOBEDIENCE AND DEFIANCE OF THE TEMPORARY RESTRAINING ORDER OF THIS
COURT ENTERED ON SEPTEMBER 25, 1962. 

IT IS ORDERED THAT ROSS R. BARNETT AND PAUL B. JOHNSON, JR., APPEAR
BEFORE THIS COURT IN THE COURTROOM OF THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT IN NEW ORLEANS, LOUISIANA, ON FEBRUARY 8,
1963, AT 9:30 O'CLOCK A.M., TO SHOW CAUSE, IF ANY THEY HAVE, WHY THEY
SHOULD NOT BE HELD IN CRIMINAL CONTEMPT, AND SHOULD EITHER OF THEM AT
SAID TIME AND PLACE SHOW SUCH CAUSE, EITHER BY PLEADING NOT GUILTY TO
THE CHARGES CONTAINED IN THE APPLICATION OF THE UNITED STATES, OR BY
OTHER MEANS, HE SHALL THEREAFTER APPEAR BEFORE THIS COURT FOR HEARING
UPON SAID CHARGES AT A TIME AND PLACE TO BE FIXED BY THE COURT. 

THIS 4TH DAY OF JANUARY, 1963. 

                     ELBERT P. TUTTLE

                     RICHARD T. RIVES

            WARREN L. JONES

                     JOHN R. BROWN

                     JOHN MINOR WISDOM

            GRIFFIN B. BELL

                     UNITED STATES CIRCUIT JUDGES

                     FIFTH CIRCUIT 

I DISSENT - BEN F. CAMERON

          UNITED STATES CIRCUIT

          JUDGE, FIFTH CIRCUIT 

I DISSENT - WALTER P. GEWIN

          UNITED STATES CIRCUIT

           JUDGE, FIFTH CIRCUIT            APPENDIX B TO OPINION OF

           MR. JUSTICE                    GOLDBERG, DISSENTING. 

COURT OF APPEALS' INJUNCTION ORDER. 

THIS COURT ON JULY 26, 1962 ENTERED ITS OPINION AND JUDGMENT
FORTHWITH (1) VACATING A STAY ISSUED HEREIN BY JUDGE BEN F. CAMERON,
JULY 18, 1962, (2) RECALLING ITS MANDATE ISSUED HEREIN JULY 17, 1962,
(3) AMENDING AND REISSUING ITS MANDATE, FOR THE PURPOSE OF PREVENTING
AN INJUSTICE, BY ORDERING THE DISTRICT COURT TO ISSUE FORTHWITH AN
INJUNCTION AGAINST THE DEFENDANTS-APPELLEES ORDERING THE IMMEDIATE
ADMISSION OF THE PLAINTIFF-APPELLANT, JAMES H. MEREDITH, TO THE
UNIVERSITY OF MISSISSIPPI, (4) WHICH OPINION AND JUDGMENT INCLUDES AN
ORDER OF INJUNCTION BY THIS COURT AGAINST THE DEFENDANTS-APPELLEES
HEREIN. 

NOW THEREFORE, THE FOLLOWING INJUNCTIVE ORDER IS ISSUED:

                ORDER 

PENDING SUCH TIME AS THE DISTRICT COURT HAS ISSUED AND ENFORCED THE
ORDERS HEREIN REQUIRED AND UNTIL SUCH TIME AS THERE HAS BEEN FULL AND
ACTUAL COMPLIANCE IN GOOD FAITH WITH EACH AND ALL OF SAID ORDERS BY THE
ACTUAL ADMISSION OF PLAINTIFF-APPELLANT TO, AND THE CONTINUED
ATTENDANCE THEREAFTER AT THE UNIVERSITY OF MISSISSIPPI ON THE SAME
BASIS AS OTHER STUDENTS WHO ATTEND THE UNIVERSITY, THE DEFENDANTS,
THEIR SERVANTS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, AND ALL
PERSONS ACTING IN CONCERT WITH THEM, AS WELL AS ANY AND ALL PERSONS
HAVING KNOWLEDGE OF THE DECREE ARE EXPRESSLY: 

(1)  ORDERED TO ADMIT THE PLAINTIFF, JAMES H. MEREDITH, TO THE
UNIVERSITY OF MISSISSIPPI, ON THE SAME BASIS AS OTHER STUDENTS AT THE
UNIVERSITY, UNDER HIS APPLICATIONS HERETOFORE FILED, WHICH ARE DECLARED
TO BE CONTINUING APPLICATIONS, SUCH ADMISSION TO BE IMMEDIATE OR,
BECAUSE OF THE SECOND SUMMER SESSION HAVING STARTED, SUCH ADMISSION TO
BE IN SEPTEMBER, AT MEREDITH'S OPTION, AND WITHOUT FURTHER
REGISTRATION: 

(2)  PROHIBITED FROM ANY ACT OF DISCRIMINATION RELATING TO MEREDITH'S
ADMISSION AND CONTINUED ATTENDANCE, AND IS: 

(3)  ORDERED PROMPTLY TO EVALUATE AND APPROVE MEREDITH'S CREDITS
WITHOUT DISCRIMINATION AND ON A REASONABLE BASIS IN KEEPING WITH THE
STANDARDS APPLICABLE TO TRANSFERS TO THE UNIVERSITY OF MISSISSIPPI. 

IN AID OF THIS COURT'S JURISDICTION AND IN ORDER TO PRESERVE THE
EFFECTIVENESS OF ITS JUDGMENT, THIS COURT ENTERED A PRELIMINARY
INJUNCTION ON JUNE 12, 1962.  THE INJUNCTION WAS AGAINST PAUL G.
ALEXANDER, ATTORNEY FOR HINDS COUNTY, MISSISSIPPI, HIS AGENT,
EMPLOYEES, SUCCESSORS, AND ALL PERSONS IN ACTIVE CONCERT AND
PARTICIPATION WITH HIM AND ALL PERSONS WHO RECEIVED NOTICE OF THE
ISSUANCE OF THE ORDER, RESTRAINING AND ENJOINING EACH AND ALL OF THEM
FROM PROCEEDING WITH THE CRIMINAL ACTION INSTITUTED AGAINST JAMES H.
MEREDITH IN THE JUSTICE OF THE PEACE COURT OF HINDS COUNTY, JUSTICE
DISTRICT NO. 5, OR ANY OTHER COURT OF THE STATE OF MISSISSIPPI,
CHARGING THAT MEREDITH KNOWINGLY SECURED HIS REGISTRATION AS A VOTER IN
HINDS COUNTY BUT WAS A RESIDENT OF ATTALA COUNTY, MISSISSIPPI.  IN
FURTHER AID OF THIS COURT'S JURISDICTION AND IN ORDER TO PRESERVE THE
CONTINUED EFFECTIVENESS OF ITS JUDGMENT AND ORDERS, THE SAID
PRELIMINARY INJUNCTION IS CONTINUED AGAINST THE SAME PARTIES AND ALL
OTHER PARTIES HAVING KNOWLEDGE OF THIS DECREE PENDING THE FINAL ACTION
OF THE UNITED STATES SUPREME COURT IF AND WHEN THE DEFENDANTS-APPELLEES
SHOULD APPLY FOR A WRIT OF CERTIORARI OR FOR ANY OTHER APPROPRIATE
ACTION IN THIS CAUSE BY THE UNITED STATES SUPREME COURT. 

IT IS FURTHER ORDERED THAT A COPY OF THIS ORDER BE SERVED UPON THE
DEFENDANTS-APPELLEES, THROUGH THEIR ATTORNEYS, AND UPON PAUL G.
ALEXANDER, COUNTY ATTORNEY FOR HINDS COUNTY, MISSISSIPPI, AND JOSEPH T.
PATTERSON, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI. 

ENTERED AT NEW ORLEANS, LOUISIANA THIS 28TH DAY OF JULY, 1962. 

                  JOHN R. BROWN, JMW

UNITED STATES CIRCUIT JUDGE

                     JOHN MINOR WISDOM

                     UNITED STATES CIRCUIT JUDGE

                     DOZIER A. DEVANE, JMW

           UNITED STATES DISTRICT JUDGE

    APPENDIX C TO OPINION OF MR. JUSTICE

             GOLDBERG, DISSENTING. 

DISTRICT COURT'S ORDER GRANTING PERMANENT INJUNCTION. 

THIS MATTER IS NOW BEFORE THIS COURT BY VIRTUE OF THE MANDATE OF THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT AND THE MANDATE OF
MR. JUSTICE BLACK OF SEPTEMBER 10, 1962 SETTING ASIDE ALL STAYS GRANTED
BY JUDGE BEN F. CAMERON AND PUTTING INTO EFFECT THE MANDATES OF THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT ENJOINING THE TRUSTEES AND
OFFICIALS OF THE UNIVERSITY OF MISSISSIPPI FROM TAKING ANY STEPS TO
PREVENT ENFORCEMENT OF THE MANDATES OF THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT, AND THIS COURT HAVING NOW CONSIDERED THE MANDATES OF THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT OF JULY 17, 1962, JULY 27, 1962
AND ITS FINAL ORDER OF AUGUST 4, 1962, AND THIS COURT HAVING CONSIDERED
THE MANDATE OF JULY 17, 1962 WHEREIN THE COURT OF APPEALS REVERSED THE
JUDGMENT OF THE DISTRICT COURT WITH DIRECTIONS TO THIS COURT TO ISSUE
AN INJUNCTION AS PRAYED FOR IN THE COMPLAINT AND BY ITS MANDATE OF JULY
27, 1962 ORDERED THE JUDGMENT OF THAT COURT ISSUED AS AND FOR THE
MANDATE ON JULY 17, 1962, BE RECALLED AND AMENDED BY MAKING EXPLICIT
THE MEANING THAT WAS IMPLICIT AS EXPRESSED IN ITS OPINION DATED JUNE
25, 1962 AND ORDERING THAT THIS COURT "FORTHWITH GRANT ALL RELIEF
PRAYED FOR BY THE PLAINTIFF AND TO ISSUE FORTHWITH A PERMANENT
INJUNCTION AGAINST EACH AND ALL OF THE DEFENDANTS-APPELLEES, THEIR
SERVANTS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, AND ALL PERSONS
ACTING IN CONCERT WITH THEM, AS WELL AS ANY AND ALL PERSONS HAVING
KNOWLEDGE OF THE DECREE, ENJOINING AND COMPELLING EACH AND ALL OF THEM
TO ADMIT THE PLAINTIFF-APPELLANT, JAMES H. MEREDITH, TO THE UNIVERSITY
OF MISSISSIPPI UNDER HIS APPLICATIONS HERETOFORE FILED, WHICH ARE
DECLARED BY US TO BE CONTINUING APPLICATIONS.  SUCH INJUNCTION SHALL IN
TERMS PREVENT AND PROHIBIT SAID DEFENDANTS-APPELLEES, OR ANY OF THE
CLASSES OF PERSONS REFERRED TO FROM EXCLUDING THE PLAINTIFF-APPELLANT
FROM ADMISSION TO CONTINUED ATTENDANCE AT THE UNIVERSITY OF
MISSISSIPPI." 

AND BY ITS MANDATE OF AUGUST 4, 1962 THE COURT OF APPEALS REAFFIRMED
ITS ORDERS OF JULY 17, 1962 AND JULY 27, 1962 IN THE FOLLOWING
LANGUAGE:  "ALL OF OUR ORDERS OF JULY 17, JULY 27 AND THIS DATE,
THEREFORE CONTINUE IN FULL FORCE AND EFFECT AND REQUIRE FULL AND
IMMEDIATE OBEDIENCE AND COMPLIANCE." 

NOW, THEREFORE, IT IS HERE ORDERED, ADJUDGED AND DECREED THAT THE
PLAINTIFF, JAMES HOWARD MEREDITH, BE AND HE IS HEREBY GRANTED ALL THE
RELIEF THAT IS PRAYED FOR BY HIM IN HIS COMPLAINT AND THAT THE
DEFENDANTS, CHARLES DICKSON FAIR, PRESIDENT OF THE BOARD OF TRUSTEES OF
STATE INSTITUTIONS OF HIGHER LEARNING OF THE STATE OF MISSISSIPPI,
LOUISVILLE, MISSISSIPPI; EUCLID RAY JOBE, EXECUTIVE SECRETARY OF THE
BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING OF THE STATE
OF MISSISSIPPI, JACKSON, MISSISSIPPI; EDGAR RAY IZARD, HAZLEHURST,
MISSISSIPPI; LEON LOWREY, OLIVE BRANCH, MISSISSIPPI; IRA LAMAR MORGAN,
OXFORD, MISSISSIPPI; MALCOLM METTE ROBERTS, HATTIESBURG, MISSISSIPPI;
WILLIAM ORLANDO STONE, JACKSON, MISSISSIPPI; S.R. EVANS, GREENWOOD,
MISSISSIPPI; VERNER SMITH HOLMES, MCCOMB, MISSISSIPPI; JAMES NAPOLEON
LIPSCOMB, MACON, MISSISSIPPI; TALLY D. RIDDELL, QUITMAN, MISSISSIPPI;
HARRY GORDON CARPENTER, ROLLING FORK, MISSISSIPPI; ROBERT BRUCE SMITH,
II, RIPLEY, MISSISSIPPI AND THOMAS JEFFERSON TUBB, WEST POINT,
MISSISSIPPI, MEMBERS OF THE BOARD OF TRUSTEES OF STATE INSTITUTIONS OF
HIGHER LEARNING; JAMES DAVIS WILLIAMS, CHANCELLOR OF THE UNIVERSITY OF
MISSISSIPPI, OXFORD, MISSISSIPPI; ARTHUR BEVERLY LEWIS, DEAN OF THE
COLLEGE OF LIBERAL ARTS OF THE UNIVERSITY OF MISSISSIPPI, OXFORD,
MISSISSIPPI, AND ROBERT BYRON ELLIS, REGISTRAR OF THE UNIVERSITY OF
MISSISSIPPI, OXFORD, MISSISSIPPI, AND EACH OF THEM, THEIR AGENTS,
SERVANTS, EMPLOYEES, SUCCESSORS, ATTORNEYS AND ALL PERSONS IN ACTIVE
CONCERT AND PARTICIPATION WITH THEM BE AND THEY HEREBY ARE PERMANENTLY
RESTRAINED AND ENJOINED FROM: 

(1)  REFUSING TO ADMIT PLAINTIFF, JAMES HOWARD MEREDITH IMMEDIATELY
TO THE UNIVERSITY OF MISSISSIPPI AND THAT THEY SHALL EACH OF THEM BE,
AND THEY ARE HEREBY REQUIRED TO ADMIT HIM TO THE UNIVERSITY OF
MISSISSIPPI UPON THE SAME TERMS AND CONDITIONS AS APPLICABLE TO WHITE
STUDENTS: 

(2)  FROM INTERFERING IN ANY MANNER WITH THE RIGHT OF PLAINTIFF,
JAMES HOWARD MEREDITH TO MATRICULATE IN, OR ATTEND THE UNIVERSITY OF
MISSISSIPPI: 

(3)  FROM TAKING ANY ACTION OR DOING ANY ACT OR BEING GUILTY OF ANY
CONDUCT WHICH WILL IMPAIR, FRUSTRATE OR DEFEAT HIS RIGHT TO ENTER THE
UNIVERSITY OF MISSISSIPPI: 

(4)  REFUSING TO ADMIT THE PLAINTIFF, JAMES HOWARD MEREDITH TO THE
UNIVERSITY OF MISSISSIPPI UPON HIS APPLICATIONS HERETOFORE FILED, ALL
OF WHICH ARE CONTINUING APPLICATIONS. 

IT IS FURTHER ORDERED THAT SAID DEFENDANTS, OR ANY OF THE CLASSES OF
PERSONS REFERRED TO, ARE PROHIBITED AND ENJOINED FROM EXCLUDING THE
SAID JAMES HOWARD MEREDITH FROM ADMISSION TO CONTINUED ATTENDANCE AT
THE UNIVERSITY OF MISSISSIPPI. 

IT IS FURTHER ORDERED THAT THE DEFENDANTS, THEIR SERVANTS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, AND ALL PERSONS ACTING IN CONCERT
WITH THEM, ARE ENJOINED TO ADMIT THE PLAINTIFF, JAMES HOWARD MEREDITH
TO THE UNIVERSITY OF MISSISSIPPI UPON HIS APPLICATIONS HERETOFORE FILED
AND THEY ARE ENJOINED FROM EXCLUDING THE SAID JAMES HOWARD MEREDITH
FROM ADMISSION TO CONTINUED ATTENDANCE AT THE UNIVERSITY OF MISSISSIPPI
OR DISCRIMINATING AGAINST HIM IN ANY WAY WHATSOEVER BECAUSE OF HIS
RACE. 

IT IS FURTHER ORDERED THAT A COPY OF THIS ORDER AND INJUNCTION BE
SERVED BY THE UNITED STATES MARSHAL ON EACH OF THE DEFENDANTS HEREIN. 

ORDERED, THIS THE 13TH DAY OF SEPTEMBER, 1962. 

                   S.C. MIZE

                    UNITED STATES DISTRICT JUDGE

                      APPENDIX D TO OPINION OF MR. JUSTICE

                              GOLDBERG, DISSENTING. 

COURT OF APPEALS' TEMPORARY RESTRAINING ORDER. 

THIS COURT HAVING ENTERED ITS ORDER IN THIS ACTION ON JULY 28, 1962,
AND THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI HAVING
ENTERED A SIMILAR ORDER ON SEPTEMBER 13, 1962, PURSUANT TO THE MANDATE
OF THIS COURT, REQUIRING THE DEFENDANT OFFICIALS OF THE UNIVERSITY OF
MISSISSIPPI AND THE DEFENDANT MEMBERS OF THE BOARD OF TRUSTEES OF THE
INSTITUTIONS OF HIGHER LEARNING OF THE STATE OF MISSISSIPPI TO ENROLL
JAMES HOWARD MEREDITH AS A STUDENT IN THE UNIVERSITY OF MISSISSIPPI,
AND: 

IT APPEARING FROM THE VERIFIED PETITION OF THE UNITED STATES, AMICUS
CURIAE HEREIN, THAT THE STATE OF MISSISSIPPI, ROSS R. BARNETT, GOVERNOR
OF MISSISSIPPI, JOE T. PATTERSON, ATTORNEY GENERAL OF MISSISSIPPI, T.B.
BIRDSONG, COMMISSIONER OF PUBLIC SAFETY OF MISSISSIPPI, PAUL G.
ALEXANDER, DISTRICT ATTORNEY OF HINDS COUNTY, WILLIAM R. LAMB, DISTRICT
ATTORNEY OF LAFAYETTE COUNTY, J. ROBERT GILFOY, SHERIFF OF HINDS
COUNTY, J.W. FORD, SHERIFF OF LAFAYETTE COUNTY, WILLIAM D. RAYFIELD,
CHIEF OF POLICE OF THE CITY OF JACKSON, JAMES D. JONES, CHIEF OF POLICE
OF THE CITY OF OXFORD, WALTON SMITH, CONSTABLE OF THE CITY OF OXFORD,
THE CLASSES CONSISTING OF ALL DISTRICT ATTORNEYS IN MISSISSIPPI, THE
CLASSES CONSISTING OF THE SHERIFFS OF ALL COUNTIES IN MISSISSIPPI, THE
CLASSES CONSISTING OF ALL CHIEFS OF POLICE IN MISSISSIPPI, AND THE
CLASSES CONSISTING OF ALL CONSTABLES AND TOWN OFFICIALS IN MISSISSIPPI,
THREATEN TO IMPLEMENT AND ENFORCE, UNLESS RESTRAINED BY ORDER OF THIS
COURT, THE PROVISIONS OF A RESOLUTION OF INTERPOSITION ADOPTED BY THE
MISSISSIPPI LEGISLATURE, THE PROVISIONS OF SECTION 4065.3 OF THE
MISSISSIPPI CODE, AND A PROCLAMATION OF ROSS R. BARNETT INVOKING THE
DOCTRINE OF INTERPOSITION WITH RESPECT TO THE ENFORCEMENT OF THE ORDERS
OF THIS COURT IN THIS CASE; THAT PAUL G. ALEXANDER HAS INSTITUTED TWO
CRIMINAL PROSECUTIONS AGAINST JAMES HOWARD MEREDITH ON ACCOUNT OF THE
EFFORTS OF JAMES HOWARD MEREDITH TO ENROLL IN THE UNIVERSITY OF
MISSISSIPPI PURSUANT TO THE ORDERS OF THIS COURT; THAT A.L. MEADOR,
SR., AND THE CLASS OF PERSONS HE REPRESENTS, ON SEPTEMBER 19, 1962,
INSTITUTED IN THE CHANCERY COURT OF THE SECOND JUDICIAL DISTRICT OF
JONES COUNTY, MISSISSIPPI, A CIVIL ACTION AGAINST JAMES HOWARD MEREDITH
TO PREVENT HIM FROM ATTENDING THE UNIVERSITY OF MISSISSIPPI; THAT ON
SEPTEMBER 20, 1962, JAMES HOWARD MEREDITH, WHILE SEEKING TO ENROLL AT
THE UNIVERSITY OF MISSISSIPPI IN OXFORD, MISSISSIPPI, PURSUANT TO THE
ORDERS OF THIS COURT, WAS SERVED WITH A WRIT OF INJUNCTION ISSUED BY
THE CHANCERY COURT OF LAFAYETTE COUNTY, MISSISSIPPI, AT THE INSTANCE OF
ROSS R. BARNETT, ENJOINING JAMES HOWARD MEREDITH FROM APPLYING TO OR
ATTENDING THE UNIVERSITY OF MISSISSIPPI; THAT ON SEPTEMBER 20, 1962 THE
STATE OF MISSISSIPPI ENACTED SENATE BILL 1501, THE EFFECT OF WHICH IS
TO PUNISH JAMES HOWARD MEREDITH SHOULD HE SEEK ENROLLMENT IN THE
UNIVERSITY OF MISSISSIPPI; THAT THE EFFECT OF THE CONDUCT OF THE
DEFENDANTS HEREIN NAMED IN IMPLEMENTING THE POLICY OF THE STATE OF
MISSISSIPPI AS PROCLAIMED BY ROSS R. BARNETT WILL NECESSARILY BE TO
PREVENT THE CARRYING OUT OF THE ORDERS OF THIS COURT AND OF THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI; AND THAT THE
ACTS AND CONDUCT OF THE DEFENDANTS NAMED IN THE PETITION WILL CAUSE
IMMEDIATE AND IRREPARABLE INJURY TO THE UNITED STATES CONSISTING OF THE
IMPAIRMENT OF THE INTEGRITY OF ITS JUDICIAL PROCESSES, THE OBSTRUCTION
OF THE DUE ADMINISTRATION OF JUSTICE, AND THE DEPRIVATION OF RIGHTS
UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES, ALL BEFORE NOTICE
CAN BE SERVED AND A HEARING HAD.    IT IS ORDERED THAT THE STATE OF
MISSISSIPPI, ROSS R. BARNETT, JOE T. PATTERSON, T.B.  BIRDSONG, PAUL G.
ALEXANDER, WILLIAM R. LAMB, J. ROBERT GILFOY, J.W. FORD, WILLIAM D.
RAYFIELD, JAMES D. JONES, WALTON SMITH, THE CLASS CONSISTING OF ALL
DISTRICT ATTORNEYS IN MISSISSIPPI, THE CLASS CONSISTING OF THE SHERIFFS
OF ALL COUNTIES IN MISSISSIPPI, THE CLASS CONSISTING OF ALL CHIEFS OF
POLICE IN MISSISSIPPI, AND THE CLASS CONSISTING OF ALL CONSTABLES AND
TOWN MARSHALS IN MISSISSIPPI, THEIR AGENTS, EMPLOYEES, OFFICERS,
SUCCESSORS, AND ALL PERSONS IN ACTIVE CONCERT OR PARTICIPATION WITH
THEM, BE TEMPORARILY RESTRAINED FROM: 

1.  ARRESTING, ATTEMPTING TO ARREST, PROSECUTING OR INSTITUTING ANY
PROSECUTION AGAINST JAMES HOWARD MEREDITH UNDER ANY STATUTE, ORDINANCE,
RULE OR REGULATION WHATEVER, ON ACCOUNT OF HIS ATTENDING, OR SEEKING TO
ATTEND, THE UNIVERSITY OF MISSISSIPPI: 

2.  INSTITUTING OR PROCEEDING FURTHER IN ANY CIVIL ACTION AGAINST
JAMES HOWARD MEREDITH OR ANY OTHER PERSONS ON ACCOUNT OF JAMES HOWARD
MEREDITH'S ENROLLING OR SEEKING TO ENROLL, OR ATTENDING THE UNIVERSITY
OF MISSISSIPPI: 

3.  INJURING, HARASSING, THREATENING OR INTIMIDATING JAMES HOWARD
MEREDITH IN ANY OTHER WAY OR BY ANY OTHER MEANS ON ACCOUNT OF HIS
ATTENDING OR SEEKING TO ATTEND THE UNIVERSITY OF MISSISSIPPI: 

4.  INTERFERING WITH OR OBSTRUCTING BY ANY MEANS OR IN ANY MANNER THE
PERFORMANCE OF OBLIGATIONS OR THE ENJOYMENT OF RIGHTS UNDER THIS
COURT'S ORDER OF JULY 28, 1962 AND THE ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI ENTERED
SEPTEMBER 13, 1962, IN THIS ACTION, AND: 

5.  INTERFERING WITH OR OBSTRUCTING, BY FORCE, THREAT, ARREST OR
OTHERWISE, ANY OFFICER OR AGENT OF THE UNITED STATES IN THE PERFORMANCE
OF DUTIES IN CONNECTION WITH THE ENFORCEMENT OF, AND THE PREVENTION OF
OBSTRUCTION TO, THE ORDERS ENTERED BY THIS COURT AND THE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI RELATING TO THE ENROLLMENT AND
ATTENDANCE OF JAMES HOWARD MEREDITH AT THE UNIVERSITY OF MISSISSIPPI;
OR ARRESTING, PROSECUTING OR PUNISHING SUCH OFFICER OR AGENT ON ACCOUNT
OF HIS PERFORMING OR SEEKING TO PERFORM SUCH DUTY. 

IT IS FURTHER ORDERED THAT PAUL G. ALEXANDER AND J. ROBERT GILFOY BE
TEMPORARILY RESTRAINED FROM PROCEEDING FURTHER, SERVING OR ENFORCING
ANY PROCESS OR JUDGMENT, OR ARRESTING JAMES HOWARD MEREDITH IN
CONNECTION WITH THE CRIMINAL ACTIONS AGAINST HIM IN THE JUSTICE OF THE
PEACE COURT OF HINDS COUNTY, MISSISSIPPI. 

IT IS FURTHER ORDERED THAT A.L. MEADOR, SR., BE TEMPORARILY
RESTRAINED FROM TAKING ANY FURTHER ACTION OR SEEKING TO ENFORCE ANY
JUDGMENT ENTERED IN THE CASE OF A.L. MEADOR, SR.  V. JAMES MEREDITH, ET
AL. 

IT IS FURTHER ORDERED THAT ROSS R. BARNETT BE TEMPORARILY RESTRAINED
FROM ENFORCING OR SEEKING TO ENFORCE AGAINST JAMES HOWARD MEREDITH, ANY
PROCESS OR JUDGMENT IN THE CASE OF STATE OF MISSISSIPPI, EX REL ROSS
BARNETT, GOVERNOR VS. JAMES H. MEREDITH. 

           ELBERT P. TUTTLE

                        CIRCUIT JUDGE

                        RICHARD T. RIVES

                    CIRCUIT JUDGE

JOHN MINOR WISDOM

                        CIRCUIT JUDGE 

SIGNED THIS 25TH DAY OF SEPTEMBER, 1962, AT 8:30 A.M.
..END :



















ARNOLD V. NORTH CAROLINA 376 U.S. 773 


NO. 572.  ARGUED MARCH 26, 1964.  - DECIDED APRIL 6, 1964.  - 258 N.C.
563, 129 S.E.2D 229, REVERSED. 


PETITIONERS, NEGROES WHO HAD BEEN INDICTED BY AN ALL-WHITE GRAND JURY
IN NORTH CAROLINA, MOVED TO QUASH THE INDICTMENT ON THE GROUND THAT
NEGROES HAD BEEN SYSTEMATICALLY EXCLUDED FROM GRAND JURIES IN THE
COUNTY IN WHICH THEY WERE INDICTED.  ALTHOUGH IT WAS SHOWN BY
UNCONTRADICTED EVIDENCE THAT NEGROES COMPRISE OVER 28% OF PERSONS ON
THE TAX RECORDS OF THE COUNTY, AND OVER 30% OF THE PERSONS ON THE POLL
TAX LIST FROM WHICH JURORS ARE DRAWN, AND THAT ONLY ONE NEGRO SERVED ON
A GRAND JURY IN 24 YEARS, THE MOTION WAS OVERRULED AND PETITIONERS WERE
CONVICTED OF MURDER.  HELD:  THE TESTIMONY MADE OUT A PRIMA FACIE CASE
OF DENIAL OF THE EQUAL PROTECTION OF THE LAWS BY SYSTEMATIC EXCLUSION
OF NEGROES FROM GRAND JURY DUTY.  EUBANKS V. LOUISIANA, 356 U.S. 584,
FOLLOWED. 

ARNOLD ET AL. V. NORTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE PETITIONERS, ARNOLD AND DIXON, WERE FOUND GUILTY OF MURDER BY A
JURY AND THEIR CONVICTIONS WERE AFFIRMED, THE SUPREME COURT OF NORTH
CAROLINA CONCLUDING THAT THEY HAD NOT MADE OUT A CASE OF SYSTEMATIC
EXCLUSION OF NEGROES FROM THE GRAND JURY WHICH RETURNED THE
INDICTMENT.  258 N.C. 563, 129 S.E.2D 229.  IN SUPPORT OF THEIR MOTION
TO QUASH THE INDICTMENT BECAUSE OF CONSISTENT EXCLUSION OF NEGROES FROM
GRAND JURY SERVICE, PETITIONERS, BOTH NEGROES, OFFERED TESTIMONY OF THE
COUNTY TAX SUPERVISOR SHOWING THAT THE TAX RECORDS OF THE COUNTY, ON
WHICH NEGRO AND WHITE PERSONS ARE LISTED SEPARATELY AND FROM WHICH THE
NAMES OF JURORS ARE DERIVED, REVEALED 12,250 WHITE PERSONS AND 4,819
NEGROES IN THE COUNTY, WITH 5,583 WHITE MEN AND 2,499 NEGRO MEN LISTED
FOR POLL TAX.  IN ADDITION, THE CLERK OF THE TRIAL COURT TESTIFIED THAT
WHILE THERE HAVE BEEN AS MANY AS FOUR OR FIVE NEGROES UPON THE REGULAR
JURY PANEL FROM WHICH GRAND JURORS HAVE BEEN CHOSEN, IN HIS 24 YEARS AS
CLERK HE COULD REMEMBER ONLY ONE NEGRO SERVING ON A GRAND JURY, ANOTHER
HAVING BEEN SELECTED BUT EXCUSED.  THIS EVIDENCE WAS UNCONTRADICTED,
THE STATE CROSS-EXAMINING THE WITNESSES BUT OFFERING NO EVIDENCE. 

THE JUDGMENT BELOW MUST BE REVERSED.  THE "TESTIMONY IN ITSELF MADE
OUT A PRIMA FACIE CASE OF THE DENIAL OF THE EQUAL PROTECTION WHICH THE
CONSTITUTION GUARANTEES."  NORRIS V. ALABAMA, 294 U.S. 587, 591.  THE
SITUATION HERE IS QUITE LIKE THAT IN EUBANKS V. LOUISIANA, 356 U.S.
584, 586, WHERE SYSTEMATIC EXCLUSION OF NEGROES FROM GRAND JURY DUTY
WAS FOUND.  IN THAT CASE: 

"ALTHOUGH NEGROES COMPRISE ABOUT ONE-THIRD OF THE POPULATION OF THE
PARISH, THE UNCONTRADICTED TESTIMONY OF VARIOUS WITNESSES ESTABLISHED
THAT ONLY ONE NEGRO HAD BEEN PICKED FOR GRAND JURY DUTY WITHIN MEMORY
...  .  FROM 1936, WHEN THE COMMISSION FIRST BEGAN TO INCLUDE NEGROES
IN THE POOL OF POTENTIAL JURORS, UNTIL 1954, WHEN PETITIONER WAS
INDICTED, 36 GRAND JURIES WERE SELECTED IN THE PARISH.  SIX OR MORE
NEGROES WERE INCLUDED IN EACH LIST SUBMITTED TO THE LOCAL JUDGES.  YET
OUT OF THE 432 JURORS SELECTED ONLY THE SINGLE NEGRO WAS CHOSEN." 

SEE ALSO HERNANDEZ V. TEXAS, 347 U.S. 475. 
..END :














PUBLISHERS' ASSOCIATION OF NEW YORK CITY V. NEW YORK MAILERS' UNION
NUMBER SIX 376 U.S. 775 


NO. 384.  ARGUED MARCH 23-24, 1964.  - DECIDED APRIL 6, 1964.  -
REPORTED BELOW:  317 F.2D 624. 


JUDGMENT VACATED INSOFAR AS IT REVERSED STAY PROVISION, AND CASE
REMANDED TO DISTRICT COURT WITH DIRECTIONS TO DISMISS AS MOOT THAT
PORTION OF THE COMPLAINT SEEKING A STAY. 

PUBLISHERS' ASSOCIATION OF NEW YORK CITY V. NEW YORK MAILERS' UNION
NUMBER SIX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

UPON THE RESPONDENT'S SUGGESTION OF MOOTNESS THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS IS VACATED INSOFAR AS IT REVERSED THE
STAY PROVISION OF THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND THE CASE IS REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO DISMISS AS MOOT THAT PORTION OF THE
COMPLAINT SEEKING SUCH A STAY. 
..END :





HENRY V. CITY OF ROCK HILL 376 U.S. 776 


NO. 826.  DECIDED APRIL 6, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED. 


AFTER THIS COURT GRANTED CERTIORARI, VACATED THE JUDGMENT HOLDING
PETITIONERS GUILTY OF BREACH OF THE PEACE, AND REMANDED THE CASE TO THE
SUPREME COURT OF SOUTH CAROLINA "FOR FURTHER CONSIDERATION IN LIGHT OF
EDWARDS V. SOUTH CAROLINA, 372 U.S. 229," THAT COURT FOUND EDWARDS AND
THE LATER CASE OF FIELDS V. SOUTH CAROLINA, 375 U.S. 44, NOT
CONTROLLING AND REAFFIRMED THE CONVICTIONS.  HELD: EDWARDS AND FIELDS,
WHICH ESTABLISHED THAT THE PEACEFUL EXPRESSION OF UNPOPULAR VIEWS AT A
PLACE NOT LAWFULLY PROSCRIBED BY STATE LAW IS PROTECTED BY THE
FOURTEENTH AMENDMENT FROM STATE CRIMINAL ACTION, ARE CONTROLLING HERE. 

HENRY ET AL. V. CITY OF ROCK HILL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH
CAROLINA. 

PER CURIAM. 

WHEN THIS CASE WAS LAST BEFORE US, WE GRANTED CERTIORARI, VACATED THE
JUDGMENT HOLDING PETITIONERS GUILTY OF BREACH OF THE PEACE, AND
REMANDED THE CASE TO THE SUPREME COURT OF SOUTH CAROLINA "FOR FURTHER
CONSIDERATION IN LIGHT OF EDWARDS V. SOUTH CAROLINA, 372 U.S. 229." 
375 U.S. 6.  THAT HAS BEEN OUR PRACTICE IN ANALOGOUS SITUATIONS WHERE,
NOT CERTAIN THAT THE CASE WAS FREE FROM ALL OBSTACLES TO REVERSAL ON AN
INTERVENING PRECEDENT, WE REMAND THE CASE TO THE STATE COURT FOR
RECONSIDERATION.  DAEGELE V. KANSAS, 375 U.S. 1; PICKELSIMER V.
WAINWRIGHT, 375 U.S. 2; NEWSOME V. NORTH CAROLINA, 375 U.S. 21; SHOCKEY
V. ILLINOIS, 375 U.S. 22; AUSBIE V. CALIFORNIA, 375 U.S. 24; HERRERA V.
HEINZE, 375 U.S. 26; BARNES V. NORTH CAROLINA, 375 U.S. 28.  THE SOUTH
CAROLINA SUPREME COURT EXAMINED EDWARDS AND THE LATER CASE OF FIELDS V.
SOUTH CAROLINA, 375 U.S. 44, FOUND THEM NOT CONTROLLING, AND REAFFIRMED
THE CONVICTIONS.  IN ITS OPINION ON THE REMAND IN THE PRESENT CASE, THE
SOUTH CAROLINA SUPREME COURT EXPRESSED DOUBT CONCERNING THE MEANING AND
SIGNIFICANCE OF OUR REMAND ORDER, AND IT WENT ON TO EXPLAIN WHY, IN ITS
VIEW, THE EDWARDS AND THE FIELDS CASES WERE DISTINGUISHABLE.  FOR THOSE
REASONS, IT IS APPROPRIATE TO ADD THESE WORDS OF EXPLANATION. 

THE SOUTH CAROLINA SUPREME COURT CORRECTLY CONCLUDED THAT OUR EARLIER
REMAND DID NOT AMOUNT TO A FINAL DETERMINATION ON THE MERITS.*  THAT
ORDER DID, HOWEVER, INDICATE THAT WE FOUND EDWARDS SUFFICIENTLY
ANALOGOUS AND, PERHAPS, DECISIVE TO COMPEL RE-EXAMINATION OF THE CASE. 

*THE SOUTH CAROLINA SUPREME COURT INTIMATED THAT THE RULE OF EDWARDS
WAS DESIGNED TO GUIDE US IN DETERMINING OUR REVIEW OF STATE ACTION. 
BUT EDWARDS STATES A RULE BASED UPON THE CONSTITUTION OF THE UNITED
STATES WHICH, UNDER THE SUPREMACY CLAUSE, IS BINDING UPON STATE COURTS
AS WELL AS UPON FEDERAL COURTS. 

WE NOW THINK EDWARDS AND FIELDS CONTROL THE RESULT HERE.  AS IN THOSE
CASES, THE PETITIONERS HERE, WHILE AT A PLACE WHERE THE STATE'S LAW DID
NOT FORBID THEM TO BE, WERE ENGAGED IN THE "PEACEFUL EXPRESSION OF
UNPOPULAR VIEWS."  EDWARDS V. SOUTH CAROLINA, 372 U.S., AT 237.  THEY
ASSEMBLED IN A PEACEFUL, ORDERLY FASHION IN FRONT OF THE CITY HALL TO
PROTEST SEGREGATION.  THEY CARRIED SIGNS TO THAT EFFECT AND THEY SANG
PATRIOTIC AND RELIGIOUS SONGS.  ALTHOUGH WHITE ONLOOKERS ASSEMBLED, NO
VIOLENCE OR THREAT OF VIOLENCE OCCURRED AND TRAFFIC WAS NOT DISTURBED. 
AFTER 15 MINUTES OF THIS, THEY WERE ARRESTED FOR FAILURE TO DISPERSE
UPON ORDERS.  HERE, AS IN EDWARDS AND FIELDS, PETITIONERS "WERE
CONVICTED OF AN OFFENSE SO GENERALIZED AS TO BE, IN THE WORDS OF THE
SOUTH CAROLINA SUPREME COURT, 'NOT SUSCEPTIBLE OF EXACT DEFINITION.'" 
IBID.  AND HERE AS THERE "THEY WERE CONVICTED UPON EVIDENCE WHICH
SHOWED NO MORE THAN THAT THE OPINIONS WHICH THEY WERE PEACEABLY
EXPRESSING WERE SUFFICIENTLY OPPOSED TO THE VIEWS OF THE MAJORITY OF
THE COMMUNITY TO ATTRACT A CROWD AND NECESSITATE POLICE PROTECTION." 
IBID. 

EDWARDS ESTABLISHED THAT THE "FOURTEENTH AMENDMENT DOES NOT PERMIT A
STATE TO MAKE CRIMINAL THE PEACEFUL EXPRESSION OF UNPOPULAR VIEWS." 
IBID.  AS IN EDWARDS, THE SOUTH CAROLINA SUPREME COURT HAS HERE
"DEFINED A CRIMINAL OFFENSE SO AS TO PERMIT CONVICTION OF THE
PETITIONERS IF THEIR SPEECH 'STIRRED PEOPLE TO ANGER, INVITED PUBLIC
DISPUTE, OR BROUGHT ABOUT A CONDITION OF UNREST.  A CONVICTION RESTING
ON ANY OF THOSE GROUNDS MAY NOT STAND.'  (TERMINIELLO V. CHICAGO, 337
U.S. 1, 5.)"  ID., AT 238.  ACCORDINGLY CERTIORARI IS GRANTED AND THE
JUDGMENT IS REVERSED. 
..END :
















J.B. ACTON, INC., V. UNITED STATES 376 U.S. 779 


NO. 726.  DECIDED APRIL 6, 1964.  - 221 F. SUPP. 174, AFFIRMED. 


J.B. ACTON, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















PAN-AMERICAN LIFE INSURANCE CO. V. RODRIGUEZ 376 U.S. 779 


NO. 67.  DECIDED APRIL 6, 1964.  - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED.  - REPORTED BELOW:  311 F.2D 429. 


PAN-AMERICAN LIFE INSURANCE CO. V. RODRIGUEZ ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF BANCO
NACIONAL DE CUBA V. SABBATINO, ANTE, P. 398. 
..END :














STANDARD CIGAR CO. V. TABACALERA SEVERIANO JORGE, S.A. 376 U.S. 780 


NO. 78.  DECIDED APRIL 6, 1964.  - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED.  - REPORTED BELOW:  311 F.2D 439. 


STANDARD CIGAR CO. V. TABACALERA SEVERIANO JORGE, S.A. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF BANCO
NACIONAL DE CUBA V. SABBATINO, ANTE, P. 398. 
..END :














AETNA INSURANCE CO. V. MENENDEZ 376 U.S. 781 


NO. 68.  DECIDED APRIL 6, 1964.  - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED.  - REPORTED BELOW:  311 F.2D 437. 


AETNA INSURANCE CO. V. MENENDEZ. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF BANCO
NACIONAL DE CUBA V. SABBATINO, ANTE, P. 398. 
..END :














TELEPHONE NEWS SYSTEM, INC., V. ILLINOIS BELL TELEPHONE CO. 376 U.S.
782 


NO. 772.  DECIDED APRIL 6, 1964.  - 220 F. SUPP. 621, AFFIRMED. 


TELEPHONE NEWS SYSTEM, INC., V. ILLINOIS BELL TELEPHONE CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














YRIBARNE V. COUNTY OF SAN BERNARDINO 376 U.S. 783 


NO. 811.  DECIDED APRIL 6, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  218 CAL. APP. 2D 369,
32 CAL. RPTR.  847. 


YRIBARNE V. COUNTY OF SAN BERNARDINO ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :












UNITED FUEL GAS CO. V. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA 376
U.S. 784 


NO. 527.  DECIDED APRIL 6, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


UNITED FUEL GAS CO. V. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















FEDERAL POWER COMMISSION V. HUNT 376 U.S. 515 


NO. 273.  ARGUED MARCH 2, 1964.  - DECIDED MARCH 30, 1964.  - 306 F.2D
334, REVERSED. 


1.  THE ISSUANCE BY THE FEDERAL POWER COMMISSION (FPC) OF A TEMPORARY
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY UNDER SEC. 7(C) OF THE
NATURAL GAS ACT, AUTHORIZING THE SALE OF NATURAL GAS IN INTERSTATE
MOVEMENT PENDING DETERMINATION OF AN APPLICATION FOR PERMANENT
CERTIFICATION, MAY BE CONDITIONED IN THE FPC'S DISCRETION UPON THE
MAINTENANCE OF A PRESCRIBED PRICE DURING THE PERIOD OF THE TERMPORARY
AUTHORIZATION.  PP. 515-521. 

2.  THE PROCEDURE OF SEC. 4 OF THE ACT FOR THE FILING OF PROPOSED
CHANGES IN RATES IS AVAILABLE TO THE PRODUCER ONLY AFTER THE ISSUANCE
OF A PERMANENT OR AN UNCONDITIONAL TERMPORARY CERTIFICATE.  PP. 523
527. 

FEDERAL POWER COMMISSION V. HUNT ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER THE FEDERAL POWER COMMISSION, WHEN
GRANTING AN APPLICATION FOR A TEMPORARY CERTIFICATE AUTHORIZING THE
SALE OF NATURAL GAS IN INTERSTATE COMMERCE, CAN IMPOSE A CONDITION THAT
THE APPLICANT SHALL NOT INCREASE ITS CERTIFICATED PRICE PENDING A
HEARING ON THE APPLICANT'S PETITION FOR PERMANENT AUTHORITY.  EACH OF
THE SEVEN APPLICATIONS INVOLVED HERE REQUESTED TEMPORARY OPERATING
AUTHORITY TO SELL NATURAL GAS IN INTERSTATE COMMERCE ON EMERGENCY
GROUNDS, AS PROVIDED BY SECS. 7(C) AND (E) OF THE NATURAL GAS ACT. 
(FN1)  IN EACH CASE THE FEDERAL POWER COMMISSION CONDITIONED THE
TEMPORARY GRANT OF AUTHORITY UPON, INTER ALIA, THE PRODUCER'S
MAINTAINING THE INITIAL PRICE, WITHOUT INCREASE, DURING THE PERIOD OF
THE TEMPORARY AUTHORIZATION.  ON APPEAL, THE COURT OF APPEALS SET ASIDE
THIS CONDITION, HOLDING THAT IT WAS BEYOND THE POWER OF THE COMMISSION
AND CONFLICTED WITH THE RIGHT OF A PRODUCER TO INITIATE A HIGHER
CONTRACT RATE UNDER SEC. 4 OF THE ACT.  306 F.2D 334.  WE GRANTED
CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTION TO THE ENFORCEMENT
OF THE NATURAL GAS ACT.  375 U.S. 810.  WE CONCLUDE THAT THE COMMISSION
CAN IMPOSE SUCH A CONDITION IN GRANTING TEMPORARY AUTHORIZATIONS UNDER
SEC. 7 AND THEREFORE REVERSE THE JUDGMENTS. 

                                   I. 

WHILE THIS CASE INVOLVES APPLICATIONS FOR SEVEN DIFFERENT TEMPORARY
AUTHORIZATIONS, THE ESSENTIAL FACTS AS TO EACH, SAVE THE DATES AND GAS
FIELDS, ARE THE SAME.  SINCE THE PARTIES AND THE COURT OF APPEALS HAVE
TREATED THE SALE BY THE HASSIE HUNT TRUST AS TYPICAL, WE SHALL DO
LIKEWISE. 

THE HUNTS ARE PRODUCERS OF NATURAL GAS IN THE ALTA LOMA AREA IN
GALVESTON COUNTY IN TEXAS RAILROAD DISTRICT NO. 3.  IN JULY 1960, THE
COMMISSION ISSUED A PERMANENT CERTIFICATE AUTHORIZING SALES OF NATURAL
GAS FROM THE ALTA LOMA AND OTHER AREAS TO THE PEOPLES GULF COAST
NATURAL GAS PIPELINE CO. 24 F.P.C. 1.  THE AUTHORIZATION WAS
CONDITIONED UPON THE PRODUCER'S FILING AN AMENDED CONTRACT PROVIDING
FOR AN INITIAL PRICE OF 20 CENTS PER MCF., WITH AN ESCALATION OF 3
CENTS AFTER 10 YEARS.  THE ORIGINAL CONTRACT HAD ALLOWED FOUR 2-CENT
ESCALATIONS AT FOUR-YEAR INTERVALS.  THE ORDER WAS FOUND DEFECTIVE,
HOWEVER, BECAUSE THE PUBLIC SERVICE COMMISSION OF NEW YORK, WHICH
SOUGHT A LOWER INITIAL PRICE, HAD BEEN REFUSED INTERVENTION BEFORE THE
COMMISSION.  SEE PUBLIC SERVICE COMM'N V. FEDERAL POWER COMM'N, 111
U.S. APP. D.C. 153, 295 F.2D 140, CERT. DENIED, SUB NOM.  SHELL OIL CO.
V. PUBLIC SERVICE COMM'N, 368 U.S. 948.  THEREAFTER THE COMMISSION
VACATED ITS ISSUANCE OF THE CERTIFICATE AND ORDERED A NEW HEARING ON
THE QUESTION OF INITIAL PRICE.  26 F.P.C. 689. 

IN THE MEANTIME, AFTER THE ISSUANCE, BUT PRIOR TO THE VACATING, OF
THE JULY 1960 CERTIFICATE, THE COMMISSION ISSUED GENERAL POLICY NO. 61
1, 18 CFR SEC. 2.56, 24 F.P.C.  818, WHICH FIXED THE GUIDELINE FOR
INITIAL PRICES FOR TEXAS RAILROAD DISTRICT NO. 3 AT 18 CENTS PER MCF.,
2 CENTS BELOW THE INITIAL PRICE ALLOWED IN THE JULY 1960 CERTIFICATE. 

THEREAFTER, ON FEBRUARY 27, 1961, THE HASSIE HUNT TRUST APPLIED FOR A
PERMANENT CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ALLOWING
SALES FROM A NEW WELL IN THIS SAME AREA TO NATURAL GAS PIPELINE COMPANY
OF AMERICA, THE SUCCESSOR TO PEOPLES GULF COAST.  IT ALSO APPLIED FOR
TEMPORARY AUTHORIZATION TO BEGIN SERVICE IMMEDIATELY UNDER THE
EMERGENCY PROVISIONS OF THE COMMISSION'S REGULATIONS ISSUED UNDER SEC.
7(C) OF THE ACT.  18 CFR SEC. 157.28.  THE EMERGENCY WAS ALLEGED TO
RESULT FROM THE "NECESSITY OF PAYING SHUT-IN ROYALTIES AND THE
INCURRENCE OF DRAINAGE THROUGH SALES BY OTHERS TO PIPELINE COMPANIES
OTHER THAN NATURAL."  THE NEW SALE WAS COVERED BY A 20-YEAR CONTRACT,
DATED DECEMBER 15, 1960, WITH PROVISIONS IDENTICAL TO THOSE OF THE
EARLIER CONTRACT, I.E., AN INITIAL PRICE OF 20 CENTS PER MCF.  WITH 2
CENT ESCALATIONS AT FOUR-YEAR INTERVALS.  THE COMMISSION ON APRIL 7,
1961, GRANTED THE TEMPORARY AUTHORIZATION SUBJECT TO THREE CONDITIONS:
(1) THAT THE TOTAL INITIAL PRICE NOT EXCEED 18 CENTS PER MCF.  AND THUS
BE IN KEEPING WITH THE GUIDELINE RATE SET FOR TEXAS RAILROAD DISTRICT
NO. 3, (2) THAT WITHIN 20 DAYS SUPPLEMENTS TO THE CONTRACTS BE FILED
CONSISTENT WITH THIS PRICE, AND (3) THAT THE TEMPORARY AUTHORIZATION BE
ACCEPTED IN WRITING WITHIN 20 DAYS.  DELIVERIES WERE COMMENCED BY THE
PRODUCER ON APRIL 19 BEFORE THESE CONDITIONS WERE MET.  ON MAY 5 A
CONDITIONAL ACCEPTANCE WAS FILED RESERVING THE RIGHT TO SEEK REMOVAL OF
THE CONDITIONS IMPOSED AND TENDERING AN AMENDED CONTRACT PROVIDING FOR
AN 18-CENT INITIAL PRICE FOR 30 DAYS WITH 20 CENTS PER MCF. 
THEREAFTER.  THE COMMISSION REJECTED THIS CONDITIONAL ACCEPTANCE AND
SUBSEQUENTLY, IN ORDER TO MAKE CLEAR ITS POSITION, SPECIFICALLY
PROVIDED THAT THE INITIAL RATE WAS TO BE 18 CENTS AND THAT THERE WAS TO
BE NO CHANGE THEREIN PENDING THE HEARING ON PERMANENT AUTHORIZATION. 
THE PROPOSED 20-CENT RATE WAS REJECTED AND THEREAFTER THIS REVIEW
FOLLOWED. 

THE COURT OF APPEALS SUSTAINED THE 18-CENT INITIAL PRICE BUT HELD
THAT THE COMMISSION HAD NO POWER TO CONDITION TEMPORARY AUTHORIZATIONS
SO AS TO PRECLUDE THE FILING AND COLLECTION OF INCREASED RATES PURSUANT
TO SEC. 4 OF THE ACT. 

II. 

ONCE AGAIN WE ARE CONFRONTED WITH A QUESTION SOLELY OF THE PROPER
INTERPRETATION OF THE NATURAL GAS ACT.  THIS TIME WE MUST DETERMINE THE
INTERPLAY OF SECS. 4 AND 7.  THESE SECTIONS ARE THE AVENUES THROUGH
WHICH THE NATURAL GAS PRODUCER MAY, BY CONTRACT OR OTHERWISE, INITIALLY
PROPOSE THE DEDICATION OF HIS NATURAL GAS SUPPLY TO INTERSTATE MOVEMENT
(SEC. 7) AND, ONCE SO DEDICATED BY ORDER OF THE FEDERAL POWER
COMMISSION, THEREAFTER INITIATE CHANGES IN EXISTING RATES (SEC. 4).  WE
WILL PROCEED WITH SEPARATE ANALYSES OF THESE TWO SECTIONS. 

METHOD BY WHICH GAS MAY BE DEDICATED AND CERTIFICATED INTO INTERSTATE
COMMERCE.  IT PROHIBITS A NATURAL GAS PRODUCER FROM ENGAGING IN THE
TRANSPORTATION OR SALE OF NATURAL GAS "UNLESS THERE IS IN FORCE WITH
RESPECT TO SUCH NATURAL-GAS COMPANY A CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY ISSUED BY THE COMMISSION AUTHORIZING SUCH ACTS OR
OPERATIONS."  IN ORDER TO SECURE SUCH CERTIFICATES, APPLICATIONS ARE
FILED WITH THE COMMISSION AND IN DUE COURSE THE APPLICANTS ARE AFFORDED
A HEARING.  SECTIONS 7(C) AND (E) OF THE ACT COMMAND THAT A CERTIFICATE
SHALL BE ISSUED IF THE COMMISSION FINDS IT "REQUIRED BY THE PRESENT OR
FUTURE PUBLIC CONVENIENCE AND NECESSITY" AND IF THE APPLICANT MEETS
CERTAIN TESTS OF RELIABILITY, SUCH AS ABILITY AND WILLINGNESS TO
PERFORM.  IN ISSUING SUCH CERTIFICATES, THE COMMISSION HAS "THE POWER
TO ATTACH TO THE ISSUANCE OF THE CERTIFICATE AND TO THE EXERCISE OF THE
RIGHTS GRANTED THEREUNDER SUCH REASONABLE TERMS AND CONDITIONS AS THE
PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE."  SEC. 7(E). 

HEARINGS UNDER SEC. 7(E) FOR PERMANENT CERTIFICATION ARE TIME
CONSUMING.  THE CONGRESS, REALIZING THIS, PROVIDED IN SEC. 7(C) THAT
"THE COMMISSION MAY ISSUE A TEMPORARY CERTIFICATE IN CASES OF
EMERGENCY, TO ASSURE MAINTENANCE OF ADEQUATE SERVICE OR TO SERVE
PARTICULAR CUSTOMERS, WITHOUT NOTICE OR HEARING, PENDING THE
DETERMINATION OF AN APPLICATION FOR A CERTIFICATE, AND MAY BY
REGULATION EXEMPT FROM THE REQUIREMENTS OF THIS SECTION TEMPORARY ACTS
OR OPERATIONS FOR WHICH THE ISSUANCE OF A CERTIFICATE WILL NOT BE
REQUIRED IN THE PUBLIC INTEREST."  PURSUANT TO THIS AUTHORIZATION THE
COMMISSION ADOPTED A REGULATION WHICH SETS OUT STANDARDS FOR EMERGENCY
AUTHORIZATIONS AND REQUIRES THE APPLICANT TO FILE "A STATEMENT OF
INTENTION TO INVOKE THIS SECTION."   18 CFR SEC. 157.28(C).  THE
COMMISSION GRANTS THE TEMPORARY CERTIFICATE, WHERE IT DEEMS NECESSARY,
WITHOUT NOTICE OR HEARING.  UNDER THE TERMS OF THE REGULATION, THIS
AUTHORIZATION CONTINUES UNTIL FINAL COMMISSION ACTION UNDER SECS. 4 AND
7, "WITHOUT PREJUDICE TO SUCH RATE OR OTHER CONDITION AS MAY BE
ATTACHED TO THE ISSUANCE OF THE CERTIFICATE."  18 CFR SEC. 157.28. 

IT MUST BE NOTED, HOWEVER, THAT SEC. 7 DOES NOT STIPULATE THAT THE
COMMISSION MUST FIND THE INITIAL RATE TO BE JUST AND REASONABLE BUT
SIMPLY THAT THE SERVICE PROPOSED IS REQUIRED BY THE PRESENT AND FUTURE
PUBLIC CONVENIENCE AND NECESSITY.  NOR DOES SEC. 7 GRANT THE COMMISSION
POWER TO SUSPEND THE RATE AUTHORIZED IN PERMANENT OR TEMPORARY
CERTIFICATES ISSUED UNDER THAT SECTION.  ONCE A PERMANENT CERTIFICATE
IS GRANTED THE COMMISSION CAN CORRECT AN IMPROPER RATE ONLY UNDER SEC.
5 OF THE ACT, 52 STAT. 823, 15 U.S.C. SEC. 717D, WHICH LIKEWISE HAS NO
SUSPENSION PROVISION.  IN THE LIGHT OF THIS INABILITY TO SUSPEND THE
INITIAL RATE GRANTED UNDER A SEC. 7 CERTIFICATE, THE COMMISSION
ATTACHES CONDITIONS TO THE CERTIFICATE OF AUTHORITY WHICH IT DEEMS
NECESSARY TO AFFORD CONSUMERS THE "COMPLETE, PERMANENT AND EFFECTIVE
BOND OF PROTECTION FROM EXCESSIVE RATES AND CHARGES" FOR WHICH WE FOUND
THE ACT WAS FRAMED IN ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N,
360 U.S. 378, 388 (1959).  "THE HEART OF THE ACT," WE SAID THERE, WAS
IN THOSE PROVISIONS OF SEC. 7(E) "REQUIRING INITIALLY THAT ANY
'PROPOSED SERVICE, SALE, OPERATION, CONSTRUCTION, EXTENSION, OR
ACQUISITION  ...  WILL BE REQUIRED BY THE PRESENT OR FUTURE PUBLIC
CONVENIENCE AND NECESSITY'  ... AND THAT ALL RATES AND CHARGES 'MADE,
DEMANDED, OR RECEIVED' SHALL BE 'JUST AND REASONABLE,' SEC. 4, 15
U.S.C. SEC. 717C."  IN THIS CASE, THE COMMISSION CONCLUDED THAT WHEN
GRANTING TEMPORARY CERTIFICATES IT MUST LOOK EVEN MORE CAREFULLY TO THE
PRESENT AND FUTURE PUBLIC CONVENIENCE AND NECESSITY AND INTERPOSE SUCH
CONDITIONS PRECEDENT AS WOULD, IN ITS VIEW, FULLY PROTECT CONSUMERS
FROM EXCESSIVE RATES AND CHARGES. 

U.S.C. SEC. 717C.  IT PROVIDES IN PART THAT "NO CHANGE SHALL BE MADE BY
ANY NATURAL-GAS COMPANY IN ANY  ...  RATE  ... EXCEPT AFTER THIRTY
DAYS' NOTICE TO THE COMMISSION AND TO THE PUBLIC."  SEC.  4(D).
WHENEVER SUCH NEW RATE IS FILED, THE COMMISSION MAY, AFTER NOTICE, HOLD
HEARINGS TO DETERMINE WHETHER THE RATE IS LAWFUL AND MAY SUSPEND ITS
OPERATION, BUT ONLY FOR A PERIOD OF FIVE MONTHS.  SEC. 4(E).  IF THE
PROCEEDING IS NOT CONCLUDED WITHIN THOSE FIVE MONTHS, THE PROPOSED RATE
BECOMES EFFECTIVE AND COLLECTIBLE, SUBJECT TO SUBSEQUENT REFUND BY THE
NATURAL GAS COMPANY TO THE EXTENT THE RATE IS NOT JUST AND REASONABLE. 
AS WE SAID IN UNITED GAS PIPE LINE CO. V. MOBILE GAS SERVICE CORP., 350
U.S. 332, 341 (1956), THE POWER GRANTED TO THE COMMISSION "IS SIMPLY
THE POWER TO REVIEW RATES AND CONTRACTS MADE IN THE FIRST INSTANCE BY
NATURAL GAS COMPANIES AND, IF THEY ARE DETERMINED TO BE UNLAWFUL, TO
REMEDY THEM."  AND WE SPECIFICALLY POINTED OUT THAT ALL SEC. 4(E) DOES
"IS TO ADD TO THIS BASIC POWER, IN THE CASE OF A NEWLY CHANGED RATE
...  THE FURTHER POWERS (1) TO PRESERVE THE STATUS QUO PENDING REVIEW
OF THE NEW RATE BY SUSPENDING ITS OPERATION FOR A LIMITED PERIOD, AND
(2) THEREAFTER TO MAKE ITS ORDER RETROACTIVE, BY MEANS OF THE REFUND
PROCEDURE, TO THE DATE THE CHANGE BECAME EFFECTIVE."  IBID.  THE POWER
GRANTED TO THE COMMISSION IN SEC. 4 DOES NOT COME INTO PLAY UNTIL AFTER
THE INITIAL CERTIFICATION OF THE NATURAL GAS INTO INTERSTATE COMMERCE
HAS BEEN GRANTED UNDER SEC. 7. 

IN THE INSTANT CASE NO PERMANENT CERTIFICATES AUTHORIZING SALES IN
INTERSTATE COMMERCE HAVE YET BEEN ISSUED.  TEMPORARY CERTIFICATES HAVE
BEEN ALLOWED AND EACH IS CONDITIONED UPON THE MAINTENANCE OF THE
INITIAL PRICE.  THUS, IF RESPONDENTS' POSITION IS CORRECT, THEN THE
CONDITIONS PRECEDENT TO THE ISSUANCE OF THE TEMPORARY CERTIFICATES
REQUIRED BY THE COMMISSION CAN BE NULLIFIED BY SUBSEQUENT INDEPENDENT
ACTION OF THE RESPONDENTS IN FILING A NEW CONTRACT UNDER SEC. 4.  WE DO
NOT BELIEVE THAT THE CONGRESS INTENDED ANY SUCH INCONGRUOUS RESULT. 

                         III. 

WE FIND NO CONFLICT IN THE DIRECTIVES OF THE TWO SECTIONS.  INDEED,
THEY SUPPLEMENT ONE ANOTHER AND THEREBY WORK TOGETHER IN EFFICIENT
CONJUNCTION TO CARRY OUT THE PURPOSES OF THE ACT.  WHEN THE INDEPENDENT
PRODUCER KNOCKS ON THE DOOR OF THE COMMISSION FOR PERMISSION TO ENTER
HIS GAS IN INTERSTATE COMMERCE HE MUST SUBMIT TO THE REQUIREMENTS OF
SEC. 7.  HIS NATURAL GAS MUST BE CERTIFICATED BEFORE IT CAN MOVE INTO
INTERSTATE COMMERCE.  IF HE WISHES TO AVOID THE DELAY INCIDENT TO A
HEARING FOR A PERMANENT CERTIFICATE HE MAY APPLY FOR TEMPORARY
AUTHORIZATION, WHICH MAY BE GRANTED UPON EX PARTE APPLICATION.  IN VIEW
OF THIS, THE COMMISSION MUST HAVE THE AUTHORITY TO CONDITION A
TEMPORARY CERTIFICATE SO AS TO AVOID IRREPARABLE INJURY TO AFFECTED
PARTIES.  THIS CONDITION, ONCE IMPOSED, CONTINUES ONLY DURING THE
PENDENCY OF THE PRODUCER'S APPLICATION FOR A PERMANENT CERTIFICATE.  IN
VIEW OF THE EX PARTE NATURE OF THE PROCEEDING, IT APPEARS ONLY FAIR TO
ALL CONCERNED THAT THE CONDITION UPON WHICH THE RATE WAS TEMPORARILY
CERTIFIED BE CONTINUED UNCHANGED UNTIL THE PERMANENT CERTIFICATE IS
ISSUED.    UNDER THE PROCEDURES OF THE ACT, IT IS AT THE POINT OF
PERMANENT OR UNCONDITIONAL TEMPORARY CERTIFICATION THAT THE PROVISIONS
OF SEC. 4 BECOME APPLICABLE.  THE GAS HAS BEEN PERMANENTLY CERTIFICATED
INTO INTERSTATE COMMERCE AND THE INDEPENDENT PRODUCER IS THEN FREE TO
PURSUE THE RATE-FILING PROCEDURE OF THAT SECTION. 

THIS COURT PREVIOUSLY DISCUSSED THE USE OF THE TEMPORARY CERTIFICATE
PROCEDURE IN ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N, SUPRA.
THERE WE INDICATED THAT THE COMMISSION MIGHT AVAIL ITSELF OF ITS POWER
TO CONDITION THE INITIAL CERTIFICATION OF NATURAL GAS INTO INTERSTATE
COMMERCE IN ORDER TO PREVENT A TRIGGERING OF GENERAL PRICE RISES.  THE
LANGUAGE IS UNMISTAKABLY CLEAR AS TO THE CLAIM MADE HERE THAT THE
VITALITY OF SEC. 4 OF THE ACT IS BEING IMPAIRED AND WE THEREFORE REPEAT
AND REAFFIRM IT: 

"THIS IS NOT AN ENCROACHMENT UPON THE INITIAL RATE-MAKING PRIVILEGES
ALLOWED NATURAL GAS COMPANIES UNDER THE ACT, UNITED GAS PIPE LINE CO.
V. MOBILE GAS SERVICE CORP., SUPRA, BUT MERELY THE EXERCISE OF THAT
DUTY IMPOSED ON THE COMMISSION TO PROTECT THE PUBLIC INTEREST IN
DETERMINING WHETHER THE ISSUANCE OF THE CERTIFICATE IS REQUIRED BY THE
PUBLIC CONVENIENCE AND NECESSITY, WHICH IS THE ACT'S STANDARD IN SEC. 7
APPLICATIONS.  IN GRANTING SUCH CONDITIONAL CERTIFICATES, THE
COMMISSION DOES NOT DETERMINE INITIAL PRICES NOR DOES IT OVERTURN THOSE
AGREED UPON BY THE PARTIES.  RATHER, IT SO CONDITIONS THE CERTIFICATE
THAT THE CONSUMING PUBLIC MAY BE PROTECTED WHILE THE JUSTNESS AND
REASONABLENESS OF THE PRICE FIXED BY THE PARTIES IS BEING DETERMINED
UNDER OTHER SECTIONS OF THE ACT.  SECTION 7 PROCEDURES IN SUCH
SITUATIONS THUS ACT TO HOLD THE LINE AWAITING ADJUDICATION OF A JUST
AND REASONABLE RATE."  AT 391-392. 

NOR IS IT ANY ANSWER TO SAY THAT THE SUSPENSION POWER UNDER SEC. 4(E)
WILL AFFORD PROTECTION TO THE PUBLIC.  THE EXPERIENCE SINCE OUR OPINION
IN ATLANTIC REFINING CO., SUPRA, INDICATES THAT A TRIGGERING OF PRICE
RISES OFTEN RESULTS FROM THE OUT-OF-LINE INITIAL PRICING OF
CERTIFICATED GAS.  THESE EFFECTS BECOME IRREVERSIBLE AND SPLASH OVER
INTO INTRASTATE SALES, THUS GENERATING RECIPROCAL PRESSURES THAT
DIRECTLY AFFECT JURISDICTIONAL RATES.  AS WE SAID IN FEDERAL POWER
COMM'N V. TENNESSEE GAS TRANSMISSION CO., 371 U.S. 145, 154, 155
(1962), THE POSSIBILITY OF REFUND DOES NOT AFFORD SUFFICIENT
PROTECTION: 

"TRUE, THE EXACTION WOULD HAVE BEEN SUBJECT TO REFUND, BUT EXPERIENCE
HAS SHOWN THIS TO BE SOMEWHAT ILLUSORY  ...  .  IT IS, THEREFORE, THE
DUTY OF THE COMMISSION TO LOOK AT 'THE BACKDROP OF THE PRACTICAL
CONSEQUENCES RESULTING  ...  AND THE PURPOSES OF THE ACT,' SUNRAY MID
CONTINENT OIL CO. V. FEDERAL POWER COMM'N, 364 U.S. 137, 147 (1960), IN
EXERCISING ITS DISCRETION UNDER SEC. 16 TO ISSUE INTERIM ORDERS  ...
." 

                                  IV. 

OUR INTERPRETATION OF THE POWER OF THE COMMISSION UNDER SECS. 7(C)
AND (E) IS BUTTRESSED BY THE LEGISLATIVE HISTORY.  THEY WERE ADDED TO
THE ACT IN 1942, FOUR YEARS AFTER ITS ORIGINAL PASSAGE.  PRIOR TO THEIR
ADOPTION THE ONLY RATE-MAKING REGULATORY TOOLS THE COMMISSION POSSESSED
WERE SECS. 4 AND 5, AND THEY CAME INTO OPERATION ONLY AFTER THE NATURAL
GAS WAS ALREADY MOVING IN INTERSTATE COMMERCE.  SECTIONS 7(C) AND (E)
WERE DESIGNED TO CONTROL THE CERTIFICATION OF GAS DESTINED FOR
INTERSTATE MOVEMENT.  (FN2)  THE PURPOSE OF THE AMENDMENTS WAS TO GIVE
"THE COMMISSION AN OPPORTUNITY TO SCRUTINIZE THE FINANCIAL SET-UP, THE
ADEQUACY OF THE GAS RESERVES, THE FEASIBILITY AND ADEQUACY OF THE
PROPOSED SERVICES, AND THE CHARACTERISTICS OF THE RATE STRUCTURE  ...
AT A TIME WHEN SUCH VITAL MATTERS CAN READILY BE MODIFIED AS THE PUBLIC
INTEREST MAY DEMAND  ...  ."  HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, H.R. REP. NO. 1290, 77TH CONG., 1ST SESS., 2-3.  ITS
COUNTERPART IN THE SENATE LIKEWISE REPORTED: 

"PROVISIONS OF THE NATURAL GAS ACT EMPOWER THE COMMISSION TO PREVENT
UNECONOMIC EXTENSIONS AND WASTE, BUT IT CAN SO REGULATE SUCH POWERS
ONLY WHEN THE EXTENSION IS TO 'A MARKET IN WHICH NATURAL GAS IS ALREADY
BEING SERVED BY ANOTHER NATURAL-GAS COMPANY.'  THUS THE POSSIBILITIES
OF WASTE, UNECONOMIC AND UNCONTROLLED EXTENSIONS ARE MULTIPLE AND
TREMENDOUS.  THE PRESENT BILL WOULD CORRECT THIS GLARING INADEQUACY OF
THE ACT.  IT WOULD ALSO AUTHORIZE THE COMMISSION TO EXAMINE COSTS,
FINANCES, NECESSITY, FEASIBILITY, AND ADEQUACY OF PROPOSED SERVICES. 
THE CHARACTERISTICS OF THEIR RATE STRUCTURE COULD BE STUDIED."  SENATE
COMMITTEE ON INTERSTATE COMMERCE, S. REP. NO. 948, 77TH CONG., 2D
SESS., 1-2. 

CLEARLY, THE COMMISSION WAS GIVEN THE POWER TO LAY DOWN CONDITIONS
PRECEDENT TO THE ENTRY OF THE NATURAL GAS INTO INTERSTATE COMMERCE. 
MOREOVER, THE COMMISSION HAS LONG RECOGNIZED THIS OBLIGATION AND HAS
REQUIRED MODIFICATION OF MANY TARIFF AND CONTRACT PROVISIONS AS A
CONDITION TO THE GRANTING OF A CERTIFICATE.  (FN3) 

THE EXISTENCE OF BROAD DISCRETIONARY POWER IN THE COMMISSION TO
CONDITION TEMPORARY CERTIFICATES APPEARS TO US TO BE VITAL TO ITS
ABILITY TO HOLD THE LINE IN PRICING.  THE EXTENT OF THAT POWER IN
PERMANENT CERTIFICATION IS NOT BEFORE US NOW, SINCE EACH OF THESE
APPLICATIONS IS FOR TEMPORARY CERTIFICATION.  IT IS SAID THAT THE
CONDITION OF THE COMMISSION'S DOCKET TRANSPOSES, FOR ALL PRACTICAL
MATTERS, TEMPORARY CERTIFICATES INTO PERMANENT ONES.  THIS CLAIM ARISES
DUE TO THE DELAYS INCIDENT TO THE ISSUANCE OF A PERMANENT CERTIFICATE. 
WE SPOKE OF THE "NIGH INTERMINABLE" DELAY IN SEC. 5 PROCEEDINGS IN
ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N, SUPRA, AT 389.  THERE
DELAY OPERATED AGAINST THE CONSUMER.  HERE IT OPERATES AGAINST THE
PRODUCER.  THE COMMISSION HAS BEEN MAKING EFFORTS IN THIS REGARD,
THROUGH THE ESTABLISHMENT OF GUIDELINES FOR DETERMINING INITIAL PRICES
AND OTHER ADMINISTRATIVE DEVICES.  43 F.P.C. ANN. REP. 13, 119-120
(1963).  HOWEVER, WE AGAIN CALL TO ITS ATTENTION THE DANGERS INHERENT
IN THE ACCUMULATION OF A LARGE BACKLOG OF CASES WITH ITS ACCOMPANYING
IRREPARABLE INJURY TO THE PARTIES.  MOREOVER, CONSUMERS MAY BECOME
DIRECTLY AFFECTED THEREBY THROUGH THE RELUCTANCE OF PRODUCERS TO ENTER
INTERSTATE MARKETS BECAUSE OF THE LONG DELAY INCIDENT TO PERMANENT
CERTIFICATION.  PROCEDURES MUST BE WORKED OUT, NOT ONLY TO CLEAR UP
THIS DOCKET CONGESTION, BUT ALSO, TO MAINTAIN A REASONABLY CLEAR
CURRENT DOCKET SO THAT HEARINGS MAY BE HAD WITHOUT INORDINATE DELAY. 
IN THIS CONNECTION THE TECHNIQUES OF THE NATIONAL LABOR RELATIONS BOARD
MIGHT BE STUDIED WITH A VIEW TO DETERMINING WHETHER ITS EXEMPTION
PRACTICES, SEE GUSS V. UTAH LABOR RELATIONS BOARD, 353 U.S. 1, 3-4
(1957), MIGHT BE HELPFUL IN THE SOLUTION OF THE COMMISSION'S PROBLEMS. 
REVERSED. 

FN1  SECTION 7(C), 52 STAT. 824, AS AMENDED, 56 STAT. 83, 15 U.S.C.
SEC. 717FC), PROVIDES: 

"(C)  NO NATURAL-GAS COMPANY OR PERSON WHICH WILL BE A NATURAL-GAS
COMPANY UPON COMPLETION OF ANY PROPOSED CONSTRUCTION OR EXTENSION SHALL
ENGAGE IN THE TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO THE
JURISDICTION OF THE COMMISSION, OR UNDERTAKE THE CONSTRUCTION OR
EXTENSION OF ANY FACILITIES THEREFOR, OR ACQUIRE OR OPERATE ANY SUCH
FACILITIES OR EXTENSIONS THEREOF, UNLESS THERE IS IN FORCE WITH RESPECT
TO SUCH NATURAL-GAS COMPANY A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY ISSUED BY THE COMMISSION AUTHORIZING SUCH ACTS OR OPERATIONS:
PROVIDED, HOWEVER, THAT IF ANY SUCH NATURAL-GAS COMPANY OR PREDECESSOR
IN INTEREST WAS BONA FIDE ENGAGED IN TRANSPORTATION OR SALE OF NATURAL
GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION, ON  ...  FEBRUARY
7, 1942, OVER THE ROUTE OR ROUTES OR WITHIN THE AREA FOR WHICH
APPLICATION IS MADE AND HAS SO OPERATED SINCE THAT TIME, THE COMMISSION
SHALL ISSUE SUCH CERTIFICATE WITHOUT REQUIRING FURTHER PROOF THAT
PUBLIC CONVENIENCE AND NECESSITY WILL BE SERVED BY SUCH OPERATION, AND
WITHOUT FURTHER PROCEEDINGS, IF APPLICATION FOR SUCH CERTIFICATE IS
MADE TO THE COMMISSION WITHIN NINETY DAYS AFTER  ...  FEBRUARY 7,
1942.  PENDING THE DETERMINATION OF ANY SUCH APPLICATION, THE
CONTINUANCE OF SUCH OPERATION SHALL BE LAWFUL. 

"IN ALL OTHER CASES THE COMMISSION SHALL SET THE MATTER FOR HEARING
AND SHALL GIVE SUCH REASONABLE NOTICE OF THE HEARING THEREON TO ALL
INTERESTED PERSONS AS IN ITS JUDGMENT MAY BE NECESSARY UNDER RULES AND
REGULATIONS TO BE PRESCRIBED BY THE COMMISSION; AND THE APPLICATION
SHALL BE DECIDED IN ACCORDANCE WITH THE PROCEDURE PROVIDED IN
SUBSECTION (E) OF THIS SECTION AND SUCH CERTIFICATE SHALL BE ISSUED OR
DENIED ACCORDINGLY:  PROVIDED, HOWEVER, THAT THE COMMISSION MAY ISSUE A
TEMPORARY CERTIFICATE IN CASES OF EMERGENCY, TO ASSURE MAINTENANCE OF
ADEQUATE SERVICE OR TO SERVE PARTICULAR CUSTOMERS, WITHOUT NOTICE OR
HEARING, PENDING THE DETERMINATION OF AN APPLICATION FOR A CERTIFICATE,
AND MAY BY REGULATION EXEMPT FROM THE REQUIREMENTS OF THIS SECTION
TEMPORARY ACTS OR OPERATIONS FOR WHICH THE ISSUANCE OF A CERTIFICATE
WILL NOT BE REQUIRED IN THE PUBLIC INTEREST." 

717FE), PROVIDES: 

"(E)  EXCEPT IN THE CASES GOVERNED BY THE PROVISOS CONTAINED IN
SUBSECTION (C) OF THIS SECTION, A CERTIFICATE SHALL BE ISSUED TO ANY
QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE WHOLE OR ANY PART OF THE
OPERATION, SALE, SERVICE, CONSTRUCTION, EXTENSION, OR ACQUISITION
COVERED BY THE APPLICATION, IF IT IS FOUND THAT THE APPLICANT IS ABLE
AND WILLING PROPERLY TO DO THE ACTS AND TO PERFORM THE SERVICE PROPOSED
AND TO CONFORM TO THE PROVISIONS OF THE ACT AND THE REQUIREMENTS,
RULES, AND REGULATIONS OF THE COMMISSION THEREUNDER, AND THAT THE
PROPOSED SERVICE, SALE, OPERATION, CONSTRUCTION, EXTENSION, OR
ACQUISITION, TO THE EXTENT AUTHORIZED BY THE CERTIFICATE, IS OR WILL BE
REQUIRED BY THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY;
OTHERWISE SUCH APPLICATION SHALL BE DENIED.  THE COMMISSION SHALL HAVE
THE POWER TO ATTACH TO THE ISSUANCE OF THE CERTIFICATE AND TO THE
EXERCISE OF THE RIGHTS GRANTED THEREUNDER SUCH REASONABLE TERMS AND
CONDITIONS AS THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE." 

FN2  THE COMMISSION DID HAVE AUTHORITY WITH REFERENCE TO THE ENTRY OF
A NATURAL GAS COMPANY INTO A COMPETITIVE MARKET BUT NOT INTO NEW AND
UNSERVICED MARKETS. 

FN3  SEE, E.G., FLORIDA ECONOMIC ADVISORY COUNCIL V. FEDERAL POWER
COMM'N, 102 U.S. APP. D.C. 152, 251 F.2D 643, CERT. DENIED, 356 U.S.
959; NORTHERN NATURAL GAS CO., 22 F.P.C. 164, 174-175, 180, AFF'D SUB
NOM. MINNEAPOLIS GAS CO. V. FEDERAL POWER COMM'N, 108 U.S. APP. D.C.
36, 278 F.2D 870, CERT. DENIED, 364 U.S. 891 (CERTIFICATE CONDITIONED
UPON REMOVAL OF CLAUSES PERMITTING CANCELLATION DEPENDING ON PRICE
RELATIONSHIP OF GAS AND COMPETITIVE FUELS IN GAS PURCHASE CONTRACTS
UPON WHICH FEASIBILITY OF PIPELINE PROJECT DEPENDED); TRANSWESTERN
PIPELINE CO., 22 F.P.C. 391, 394-395, MODIFIED ON REHEARING, 22 F.P.C.
542 (MINIMUM BILL PROVISIONS OF PROPOSED TARIFF REQUIRED TO BE
MODIFIED); PANHANDLE EASTERN PIPE LINE CO., 10 F.P.C. 185 (CONDITIONS
REQUIRING INCLUSION OF INTERRUPTIBLE RATE SCHEDULES IN TARIFFS); TRANS
CONTINENTAL GAS PIPE LINE CO., 7 F.P.C.  24, 38-40 (COMMENCEMENT OF
SERVICE CONDITIONED UPON FILING OF NEW TARIFF SATISFACTORY TO
COMMISSION BECAUSE OF DISAPPROVAL OF CERTAIN TERMS OF SERVICE); ALABAMA
TENNESSEE NATURAL GAS CO., 7 F.P.C. 257 (COMMENCEMENT OF SERVICE
CONDITIONED UPON FILING OF TARIFF SATISFACTORY TO COMMISSION). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

WHILE THE RESULT REACHED BY THE COURT MAY BE THOUGHT DESIRABLE, I CAN
FIND NO JUSTIFICATION FOR IT EITHER IN THE NATURAL GAS ACT OR IN ANY OF
THE PRIOR DECISIONS OF THIS COURT.  THE MATTER IS ONE FOR CONGRESS.  I
WOULD AFFIRM THE JUDGMENTS BELOW SUBSTANTIALLY FOR THE REASONS GIVEN BY
JUDGE BROWN IN HIS CONVINCING OPINION FOR THE COURT OF APPEALS.  306
F.2D 334. 
..END :














RUGENDORF V. UNITED STATES 376 U.S. 528 


NO. 223.  ARGUED FEBRUARY 27, 1964.  - DECIDED MARCH 30, 1964.  - 316
F.2D 589, AFFIRMED. 


PETITIONER WAS CONVICTED OF KNOWINGLY CONCEALING STOLEN FUR GARMENTS
IN VIOLATION OF 18 U.S.C. SEC. 2315.  THE STOLEN FURS WERE FOUND IN THE
BASEMENT OF HIS HOME PURSUANT TO A SEARCH WARRANT ISSUED ON THE
STRENGTH OF AN AFFIDAVIT FACTUALLY INACCURATE IN TWO RESPECTS AND BASED
PARTLY ON HEARSAY STATEMENTS OF CONFIDENTIAL INFORMANTS.  PETITIONER'S
MOTION TO SUPPRESS THE INTRODUCTION IN EVIDENCE OF THE SEIZED FURS WAS
DENIED BY THE TRIAL COURT.  HELD: 

1.  THE SEARCH WARRANT WAS VALID AS LONG AS IT PROVIDED A SUBSTANTIAL
BASIS TO SUPPORT THE CONCLUSION THAT THE STOLEN GOODS WERE PROBABLY IN
PETITIONER'S BASEMENT.  PP. 531-533. 

(A)  FACTUAL INACCURACIES, NOT GOING TO THE INTEGRITY OF THE
AFFIDAVIT, DO NOT DESTROY PROBABLE CAUSE FOR A SEARCH.  PP. 532-533. 

(B)  HEARSAY, IF IT PROVIDES SUFFICIENT EVIDENCE OF PROBABLE CAUSE,
JUSTIFIES THE ISSUANCE OF A SEARCH WARRANT.  JONES V. UNITED STATES,
362 U.S. 257, FOLLOWED.  P. 533. 

2.  PETITIONER'S CLAIM THAT HE WAS ENTITLED TO THE INFORMANT'S NAME
IN ORDER TO DEFEND HIMSELF AT THE TRIAL MUST BE REJECTED WHERE FIRST
RAISED IN PETITIONER'S REPLY BRIEF ON APPEAL, HIS PREVIOUS REQUEST
HAVING BEEN CONFINED TO SUPPORT OF HIS MOTION TO SUPPRESS THE
EVIDENCE.  PP. 534-536. 

3.  THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE VERDICT.  PP. 536
537. 

RUGENDORF V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

FOLLOWING A TRIAL BY JURY, PETITIONER WAS CONVICTED OF VIOLATING 18
U.S.C. SEC. 2315 (FN1) BY KNOWINGLY RECEIVING, CONCEALING AND STORING
81 STOLEN FUR PIECES, THE FUR PIECES HAVING BEEN TRANSPORTED IN
INTERSTATE COMMERCE AND HAVING A VALUE EXCEEDING $5,000.  THE COURT OF
APPEALS SUSTAINED THE CONVICTION DESPITE PETITIONER'S OBJECTIONS THAT
THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT THE VERDICT; THAT THE FUR
GARMENTS SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE BECAUSE THEY WERE
SEIZED ON THE AUTHORITY OF A SEARCH WARRANT SUPPORTED BY A DEFICIENT
AFFIDAVIT; AND THAT THE NAMES OF CERTAIN CONFIDENTIAL INFORMANTS
REFERRED TO IN THE AFFIDAVIT SHOULD HAVE BEEN DISCLOSED.  316 F.2D
589.  WE GRANTED CERTIORARI, 375 U.S. 812, AND AFFIRM THE JUDGMENT. 

         I. 

THE SEARCH WARRANT UNDER ATTACK WAS ISSUED BY THE UNITED STATES
COMMISSIONER ON THE STRENGTH OF AN AFFIDAVIT DATED MARCH 22, 1962, AND
SIGNED BY MARLIN MOORE, A SPECIAL AGENT OF THE FEDERAL BUREAU OF
INVESTIGATION.  THE AFFIDAVIT STATED THAT MOORE HAD REASON TO BELIEVE
THAT APPROXIMATELY 80 FUR STOLES AND JACKETS, TAKEN IN A BURGLARY IN
MOUNTAIN BROOK, ALABAMA, AND WORTH ABOUT $40,000, WERE CONCEALED IN THE
BASEMENT OF A SINGLE FAMILY RESIDENCE AT 3117 WEST JARVIS AVENUE IN
CHICAGO. 

MOORE SUPPORTED THIS ALLEGATION WITH STATEMENTS THAT L. DEAN
PAARMANN, A SPECIAL AGENT OF THE BIRMINGHAM, ALABAMA, OFFICE OF THE
FBI, INFORMED MOORE THAT ON FEBRUARY 10, 1962, 82 MINK, OTTER, AND
BEAVER STOLES AND JACKETS (BUT NO FULL-LENGTH COATS), WORTH
APPROXIMATELY $42,044, WERE STOLEN IN MOUNTAIN BROOK, ALABAMA, AND THAT
ON MARCH 16, 1962, A CONFIDENTIAL INFORMANT WHO HAD FURNISHED RELIABLE
INFORMATION IN THE PAST TOLD MOORE THAT DURING THE PREVIOUS WEEK HE SAW
APPROXIMATELY 75 TO 80 MINK, OTTER AND BEAVER STOLES AND JACKETS (BUT
NO FULL-LENGTH COATS) IN THE BASEMENT OF THE HOME OF SAMUEL RUGENDORF
AT 3117 WEST JARVIS AVENUE, CHICAGO.  THE LABELS HAD BEEN REMOVED AND
THE INFORMANT WAS TOLD THAT THE FURS WERE STOLEN. 

MOORE FURTHER SUPPORTED THE ALLEGATION WITH THE FOLLOWING STATEMENTS:
FBI SPECIAL AGENT MCCORMICK ADVISED AFFIANT THAT A CONFIDENTIAL
INFORMANT WHOM THE FBI HAD FOUND TO BE RELIABLE TOLD MCCORMICK THAT
FRANK SCHWEIHS OF CHICAGO, AND OTHERS, COMMITTED THE ALABAMA ROBBERY;
MCCORMICK TOLD THE AFFIANT THAT ON OR ABOUT MARCH 1, 1962, JAMES
KELLEHER, A CHICAGO POLICE OFFICER, SAID TO MCCORMICK "THAT HE SAW
FRANK SCHWEIHS AT RUGENDORF BROTHERS MEAT MARKET, MANAGED BY SAMUEL
RUGENDORF  ...  ; FURTHER, AGENT MCCORMICK ADVISED THIS AFFIANT THAT
ANOTHER CONFIDENTIAL INFORMANT WHO HAS FURNISHED RELIABLE INFORMATION
TO THE FEDERAL BUREAU OF INVESTIGATION IN THE PAST TOLD MCCORMICK THAT
LEO RUGENDORF WAS A FENCE FOR FRANK SCHWEIHS; THAT SAMUEL RUGENDORF WAS
LEO RUGENDORF'S BROTHER AND WAS ASSOCIATED IN THE MEAT BUSINESS WITH
HIS BROTHER." 

THE AFFIDAVIT ALSO STATED THAT ANOTHER FBI SPECIAL AGENT, J.J.
OITZINGER, TOLD THE AFFIANT THAT ANOTHER CONFIDENTIAL INFORMANT WHO HAD
SUPPLIED THE FBI WITH RELIABLE INFORMATION IN THE PAST ADVISED
OITZINGER THAT FRANK SCHWEIHS, TONY PANZICA AND MIKE CONDIC WERE
ACCOMPLISHED BURGLARS WHO DISPOSED OF THE PROCEEDS OF THEIR BURGLARIES
THROUGH LEO RUGENDORF. 

FINALLY, THE AFFIDAVIT ALLEGED THAT, UPON CHECKING THE INFORMANT'S
DESCRIPTION OF THE FURS SEEN AT 3117 WEST JARVIS AVENUE, AFFIANT FOUND
THAT THE ONLY REPORTED BURGLARY IN THE UNITED STATES IN THE PREVIOUS
SIX MONTHS INVOLVING FURS OF THAT DESCRIPTION AND VALUE WAS THE ONE
OCCURRING AT MOUNTAIN BROOK, ALABAMA. 

PURSUANT TO THE SEARCH WARRANT BASED ON THIS AFFIDAVIT, A SEARCH WAS
MADE AND 81 FURS WERE FOUND IN THE BASEMENT OF PETITIONER'S RESIDENCE. 
FIFTY-NINE OF THESE FURS HAD BEEN STOLEN IN MOUNTAIN BROOK AND THE
OTHER 22, IN SHREVEPORT, LOUISIANA.  PRIOR TO TRIAL, THE TRIAL COURT
HEARD TESTIMONY ON PETITIONER'S MOTION, UNDER RULE 41(E) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE, (FN2) TO SUPPRESS THE USE OF THE SEIZED
FURS AS EVIDENCE.  THE TRIAL COURT DENIED THE MOTION INSOFAR AS IT
CHALLENGED THE LEGAL SUFFICIENCY OF THE AFFIDAVIT, BUT RESERVED RULING
ON THE TRUTHFULNESS OF THE AFFIDAVIT.  DURING THE TRIAL, ANOTHER
HEARING WAS HELD ON THE RESERVED ASPECT OF THE MOTION TO SUPPRESS AND
THE MOTION WAS DENIED.  ALSO DENIED WAS A MOTION TO REQUIRE THE
GOVERNMENT TO DISCLOSE THE NAMES OF THE CONFIDENTIAL INFORMANTS
REFERRED TO IN THE AFFIDAVIT. 

II. 

PETITIONER ATTACKS THE VALIDITY OF THE SEARCH WARRANT.  THIS COURT
HAS NEVER PASSED DIRECTLY ON THE EXTENT TO WHICH A COURT MAY PERMIT
SUCH EXAMINATION WHEN THE SEARCH WARRANT IS VALID ON ITS FACE AND WHEN
THE ALLEGATIONS OF THE UNDERLYING AFFIDAVIT ESTABLISH "PROBABLE CAUSE";
HOWEVER, ASSUMING, FOR THE PURPOSE OF THIS DECISION, THAT SUCH ATTACK
MAY BE MADE, WE ARE OF THE OPINION THAT THE SEARCH WARRANT HERE IS
VALID.  PETITIONER CONTENDS THAT PROBABLE CAUSE DID NOT EXIST BECAUSE
THE ONLY RELEVANT RECITATIONS IN THE AFFIDAVIT WERE THE ONE INFORMANT'S
STATEMENTS THAT HE SAW THE FURS IN PETITIONER'S BASEMENT AND THAT HE
WAS TOLD THAT THEY WERE STOLEN.  HOWEVER, THE INFORMANT'S DETAILED
DESCRIPTION OF THE FURS, INCLUDING NUMBER AND TYPE, CLOSELY RESEMBLED
SPECIAL AGENT PAARMANN'S DESCRIPTION OF THE FURS STOLEN IN ALABAMA. 
THE AFFIANT CHECKED THE BURGLARY REPORT RECORDS AND FOUND THE ALABAMA
BURGLARY TO BE THE ONLY RECENT ONE IN THE UNITED STATES INVOLVING FURS
OF THE DESCRIPTION AND NUMBER THAT THE INFORMANT SAW IN PETITIONER'S
BASEMENT.  IN ADDITION, THE AFFIDAVIT ALLEGED THAT LEO AND SAMUEL
RUGENDORF WERE BROTHERS AND THAT LEO WAS A FENCE FOR PROFESSIONAL
BURGLARS.  ALTHOUGH ONE OF THE INFORMANTS WHO GAVE THE LATTER
INFORMATION ADDED, INCORRECTLY, THAT SAMUEL RUGENDORF WAS ASSOCIATED
WITH LEO IN THE MEAT BUSINESS, (FN3) THERE WAS DIRECT INFORMATION FROM
ANOTHER INFORMANT OF THE FBI THAT LEO WAS A FENCE, AND NOTHING WAS
SHOWN TO PROVE THIS UNTRUE.  THE FACTUAL INACCURACIES DEPENDED UPON BY
PETITIONER TO DESTROY PROBABLE CAUSE - I.E., THE ALLEGATIONS IN THE
AFFIDAVIT THAT PETITIONER WAS THE MANAGER OF RUGENDORF BROTHERS MEAT
MARKET AND THAT HE WAS ASSOCIATED WITH HIS BROTHER LEO IN THE MEAT
BUSINESS - WERE OF ONLY PERIPHERAL RELEVANCY TO THE SHOWING OF PROBABLE
CAUSE, AND, NOT BEING WITHIN THE PERSONAL KNOWLEDGE OF THE AFFIANT, DID
NOT GO TO THE INTEGRITY OF THE AFFIDAVIT. 

WE BELIEVE THAT THERE WAS SUBSTANTIAL BASIS FOR THE COMMISSIONER TO
CONCLUDE THAT STOLEN FURS WERE PROBABLY IN THE PETITIONER'S BASEMENT. 
NO MORE IS REQUIRED.  AS WE SAID IN JONES V. UNITED STATES, 362 U.S.
257, 271 (1960): 

"WE CONCLUDE  ...  THAT HEARSAY MAY BE THE BASIS FOR A WARRANT.  WE
CANNOT SAY THAT THERE WAS SO LITTLE BASIS FOR ACCEPTING THE HEARSAY
...  THAT THE COMMISSIONER ACTED IMPROPERLY  ...  .  HE MIGHT HAVE
FOUND THE AFFIDAVIT INSUFFICIENT AND WITHHELD HIS WARRANT.  BUT THERE
WAS SUBSTANTIAL BASIS FOR HIM TO CONCLUDE THAT NARCOTICS WERE PROBABLY
PRESENT IN THE APARTMENT, AND THAT IS SUFFICIENT." 

PETITIONER ALSO CONTENDS THAT THE WITHHOLDING OF THE IDENTITIES OF
THE INFORMANTS WAS A SUFFICIENT GROUND TO REQUIRE SUPPRESSION OF THE
EVIDENCE.  BUT IN JONES, SUPRA, WE SAID THAT "AS HEARSAY ALONE DOES NOT
RENDER AN AFFIDAVIT INSUFFICIENT, THE COMMISSIONER NEED NOT HAVE
REQUIRED THE INFORMANTS ...  TO BE PRODUCED  ...  SO LONG AS THERE WAS
A SUBSTANTIAL BASIS FOR CREDITING THE HEARSAY."  AT 272.  PETITIONER'S
ONLY CHALLENGES TO THE VERACITY OF THE AFFIDAVIT ARE THE TWO INACCURATE
FACTS MENTIONED ABOVE.  SINCE THE ERRONEOUS STATEMENTS THAT PETITIONER
WAS THE MANAGER OF RUGENDORF BROTHERS MEAT MARKET AND WAS ASSOCIATED
WITH LEO IN THE MEAT BUSINESS WERE NOT THOSE OF THE AFFIANT, (FN4) THEY
FAIL TO SHOW THAT THE AFFIANT WAS IN BAD FAITH OR THAT HE MADE ANY
MISREPRESENTATIONS TO THE COMMISSIONER IN SECURING THE WARRANT. 

           III. 

PETITIONER ALSO ASSERTS THAT HE WAS ENTITLED TO THE NAME OF THE
INFORMER WHO REPORTED SEEING THE FURS IN HIS BASEMENT IN ORDER TO
DEFEND HIMSELF AT TRIAL ON THE MERITS.  THIS CLAIM WAS NOT PROPERLY
RAISED IN THE TRIAL COURT NOR PASSED UPON THERE, AND, ACCORDINGLY, MUST
BE DENIED HERE.  ON TWO OCCASIONS - ONCE PRIOR TO AND THE OTHER DURING
THE TRIAL - PETITIONER URGED HIS MOTION TO SUPPRESS THE EVIDENCE AS TO
THE FURS, CONTENDING THAT THERE WERE "FACTUAL ERRORS" IN THE AFFIDAVIT
SUPPORTING THE SEARCH WARRANT.  IT WAS SOLELY IN SUPPORT OF THIS MOTION
- NOT ON THE MERITS - THAT PETITIONER REQUESTED ALL OF THE INFORMANTS'
NAMES.  THIS IS MADE CLEAR BY PETITIONER'S MOTION FOR NEW TRIAL: 

"9.  THE COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR THE
GOVERNMENT TO REVEAL THE NAMES OF THE INFORMERS WHEN SUCH INFORMATION
WAS NECESSARY TO THE CONSTITUTIONAL RIGHTS OF THE DEFENDANT IN PURSUING
HIS MOTION TO SUPPRESS THE EVIDENCE." 

HE RELIED ENTIRELY ON SUPPRESSION, WHICH, IF SUCCESSFUL, WOULD HAVE
ENDED THE CASE.  FAILING IN THIS, PETITIONER ASSERTED, FOR THE FIRST
TIME, IN HIS REPLY BRIEF IN THE COURT OF APPEALS THAT THE NAME OF THE
SINGLE INFORMANT WHO SAW THE FURS WAS VITAL BOTH FOR THE SUPPRESSION
HEARING AND FOR THE DEFENSE AT TRIAL, BECAUSE THE INFORMANT ALONE KNEW
WHETHER HE "PARTICIPATED WITH PERSONS OTHER THAN THE DEFENDANT" IN
PLACING THE FURS IN THE BASEMENT.  APPARENTLY THIS WAS AN ATTEMPT TO
BRING THE FACTS OF THE CASE WITHIN ROVIARO V. UNITED STATES, 353 U.S.
53 (1957), WHERE THE INFORMANT HAD PLAYED A DIRECT AND PROMINENT PART,
AS THE SOLE PARTICIPANT WITH THE ACCUSED, IN THE VERY OFFENSE FOR WHICH
THE LATTER WAS CONVICTED.  BUT THERE WAS NOT EVEN AN INTIMATION OF SUCH
A SITUATION AT THE TRIAL HERE.  THE NECESSITY FOR DISCLOSURE DEPENDS
UPON "THE PARTICULAR CIRCUMSTANCES OF EACH CASE, TAKING INTO
CONSIDERATION THE CRIME CHARGED, THE POSSIBLE DEFENSES, THE POSSIBLE
SIGNIFICANCE OF THE INFORMER'S TESTIMONY, AND OTHER RELEVANT FACTORS." 
353 U.S. 53, 62.  PETITIONER DID NOT DEVELOP ANY SUCH CRITERIA WITH
REFERENCE TO THE MERITS OF THE CASE.  ON THE CONTRARY, A CAREFUL
EXAMINATION OF THE WHOLE RECORD SHOWS THAT HE REQUESTED THE INFORMERS'
NAMES ONLY IN HIS ATTACK ON THE AFFIDAVIT SUPPORTING THE SEARCH
WARRANT.  HAVING FAILED TO DEVELOP THE CRITERIA OF ROVIARO
NECESSITATING DISCLOSURE ON THE MERITS, WE CANNOT SAY ON THIS RECORD
THAT THE NAME OF THE INFORMANT WAS NECESSARY TO HIS DEFENSE.  ALL
PETITIONER'S DEMANDS FOR IDENTIFICATION OF THE INFORMANTS WERE MADE
DURING THE HEARINGS ON THE MOTION TO SUPPRESS AND WERE RELATED TO THAT
MOTION.  (FN5)  NEVER DID PETITIONER'S COUNSEL INDICATE HOW THE
INFORMANTS' TESTIMONY COULD HELP ESTABLISH PETITIONER'S INNOCENCE. 

NOR DO WE BELIEVE THAT THE TRIAL COURT ERRED IN REFUSING TO HAVE THE
GOVERNMENT DISCLOSE THE EXACT DATE DURING THE WEEK PRECEDING MARCH 16
WHEN THE INFORMANT SAW THE FURS IN THE PETITIONER'S BASEMENT.  IT IS
DIFFICULT TO SEE HOW THAT DATE COULD BE USEFUL TO PETITIONER'S DEFENSE,
SINCE THE CRUCIAL DATE IN THE INDICTMENT WAS MARCH 22 AND THERE IS NO
INDICATION THAT THE INFORMANT HAD ANY KNOWLEDGE OF ANY EVENTS OCCURRING
ON THAT DATE.  PETITIONER'S THEORY IS THAT IF HE CAN FIND OUT THE DATE,
HE MAY BE ABLE TO SHOW THAT HE AND HIS WIFE WERE AWAY FROM HOME AT THE
TIME WHEN THE INFORMANT SAW THE FURS, THEREBY CREATING AN INFERENCE
THAT SOMEONE ELSE LET THE INFORMANT IN AND THAT PETITIONER DID NOT KNOW
OF THE FURS.  HOWEVER, THE PARTICULAR DATE COULD NOT HAVE BEEN OF
MATERIAL HELP TO PETITIONER, AS BOTH HE AND HIS WIFE WERE AWAY FROM
HOME A MAJOR PORTION OF NEARLY EVERY DAY DURING THE PERIOD IN
QUESTION. 

                                  IV. 

AS TO THE SUFFICIENCY OF THE EVIDENCE, IT WAS UNDISPUTED THAT 81
STOLEN FURS WERE FOUND IN THE BASEMENT OF PETITIONER'S HOME.  THE FURS
WERE HANGING IN A CLOSET ALONG WITH A FUR PIECE ADMITTEDLY OWNED BY
MRS. RUGENDORF.  PETITIONER'S DEFENSE WAS THAT THE FURS WERE PLACED IN
THE CLOSET WITHOUT HIS KNOWLEDGE WHILE HE AND HIS WIFE WERE VACATIONING
IN FLORIDA AND THAT NEITHER HE NOR HIS WIFE LOOKED INTO THE CLOSET
AFTER THEIR RETURN UNTIL THE OFFICERS EXECUTED THE SEARCH WARRANT ON
MARCH 22.  PETITIONER'S BROTHER LEO, PETITIONER'S SISTER, HIS SON AND A
NEIGHBOR ALL HAD KEYS TO HIS HOUSE.  BOTH PETITIONER AND HIS WIFE
POINTED TO LEO AS THE GUILTY PARTY, BUT NEITHER LEO NOR THE OTHER
RELATIVES WHO HAD KEYS WERE CALLED AS WITNESSES.  THE NEIGHBOR, WHO WAS
CALLED TO TESTIFY, DENIED PUTTING THE FURS IN THE BASEMENT OR
PERMITTING ANY OTHER PERSON TO USE THE KEY. 

AS EARLY AS 1896 THIS COURT DEALT WITH SUCH SITUATIONS.  IN WILSON V.
UNITED STATES, 162 U.S. 613, CHIEF JUSTICE FULLER HELD FOR A UNANIMOUS
COURT THAT "POSSESSION OF THE FRUITS OF CRIME, RECENTLY AFTER ITS
COMMISSION, JUSTIFIES THE INFERENCE THAT THE POSSESSION IS GUILTY
POSSESSION, AND, THOUGH ONLY PRIMA FACIE EVIDENCE OF GUILT, MAY BE OF
CONTROLLING WEIGHT UNLESS EXPLAINED BY THE CIRCUMSTANCES OR ACCOUNTED
FOR IN SOME WAY CONSISTENT WITH INNOCENCE."  AT 619.  HERE, IT WAS
STIPULATED THAT 59 OF THE FURS FOUND IN THE PETITIONER'S BASEMENT WERE
STOLEN FROM A FUR STORE IN MOUNTAIN BROOK, ALABAMA, ON FEBRUARY 10,
1962.  THEY WERE FOUND IN A CLOSET OPENING OFF A REGULARLY USED
RECREATION ROOM.  IN THE SAME CLOSET WAS MRS. RUGENDORF'S FUR PIECE. 
LEO RUGENDORF, PETITIONER'S BROTHER, WAS A KNOWN RECEIVER OF STOLEN
GOODS AND WAS SEEN AT THE HOME WHILE THE RUGENDORFS WERE IN FLORIDA. 
PETITIONER TESTIFIED AT TRIAL THAT LEO HAD BORROWED A KEY BEFORE
PETITIONER WENT TO FLORIDA, AND THAT LEO HAD NOT YET RETURNED IT.  IN
REBUTTAL AN FBI AGENT TESTIFIED THAT PETITIONER TOLD HIM THAT LEO
RETURNED THE KEY SOON AFTER THE PETITIONER RETURNED FROM FLORIDA.  IN
SOME OTHER RESPECTS THE TESTIMONY OF BOTH PETITIONER AND HIS WIFE
CONFLICTED WITH THE REBUTTAL TESTIMONY OF THE FBI AGENTS.  APPARENTLY
THE JURY SIMPLY DID NOT BELIEVE THE EXPLANATION OF PETITIONER AND HIS
WIFE.  IT MAY BE THAT THE JURY'S CREDULITY WAS STRETCHED TOO FAR; OR,
PERHAPS THE FAILURE OF THE DEFENSE TO CALL LEO RUGENDORF AND THE OTHER
KINSMEN, TO WHOM THEY HAD GIVEN KEYS TO THE HOME, APPEARED STRANGE,
ESPECIALLY SO, SINCE THE NEIGHBOR WAS CALLED TO TESTIFY ABOUT HIS USE
OF A KEY.  IN ANY EVENT A PRIMA FACIE CASE WAS MADE OUT BY THE
STIPULATION AND THE PRESENCE OF THE FURS IN PETITIONER'S HOME.  WE
CANNOT SAY THAT THIS WAS INSUFFICIENT.  AFFIRMED. 

FN1  18 U.S.C. SEC. 2315: 

"WHOEVER RECEIVES, CONCEALS, STORES, BARTERS, SELLS, OR DISPOSES OF
ANY GOODS, WARES, OR MERCHANDISE, SECURITIES, OR MONEY OF THE VALUE OF
$5,000 OR MORE, OR PLEDGES OR ACCEPTS AS SECURITY FOR A LOAN ANY GOODS,
WARES, OR MERCHANDISE, OR SECURITIES, OF THE VALUE OF $500 OR MORE,
MOVING AS, OR WHICH ARE A PART OF, OR WHICH CONSTITUTE INTERSTATE OR
FOREIGN COMMERCE, KNOWING THE SAME TO HAVE BEEN STOLEN, UNLAWFULLY
CONVERTED, OR TAKEN; ...  : 

     *         *         *         *         * 

"SHALL BE FINED NOT MORE THAT $10,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH." 

FN2  RULE 41(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE: 

"MOTION FOR RETURN OF PROPERTY AND TO SUPPRESS EVIDENCE.  A PERSON
AGGRIEVED BY AN UNLAWFUL SEARCH AND SEIZURE MAY MOVE THE DISTRICT COURT
FOR THE DISTRICT IN WHICH THE PROPERTY WAS SEIZED FOR THE RETURN OF THE
PROPERTY AND TO SUPPRESS FOR THE USE AS EVIDENCE ANYTHING SO OBTAINED
ON THE GROUND THAT  ...  (4) THERE WAS NOT PROBABLE CAUSE FOR BELIEVING
THE EXISTENCE OF THE GROUNDS ON WHICH THE WARRANT WAS ISSUED  ...  ." 

FN3  IN FACT, PETITIONER TERMINATED HIS BUSINESS ASSOCIATION WITH HIS
BROTHER LEO AND WITH RUGENDORF BROTHERS MEAT MARKET IN 1952. 

FN4 THE AFFIDAVIT ALLEGED THAT MCCORMICK TOLD THE AFFIANT THAT POLICE
OFFICER KELLEHER TOLD HIM THAT PETITIONER WAS THE MANAGER OF RUGENDORF
BROTHERS MEAT MARKET AND THAT A CONFIDENTIAL INFORMANT TOLD MCCORMICK
THAT LEO AND PETITIONER WERE ASSOCIATED IN THE MEAT BUSINESS.  KELLEHER
TESTIFIED THAT HE DID NOT SO INFORM MCCORMICK.  THE LATTER WAS IN THE
HOSPITAL FOR AN OPERATION AT THE TIME OF TRIAL, BUT HIS DEPOSITION WAS
NOT SOUGHT NOR ANY POSTPONEMENT REQUESTED TO ENABLE HIM TO BE PRESENT. 

FN5  IT WAS DURING THE HEARING ON THE MOTION PRIOR TO TRIAL THAT
PETITIONER CITED UNITED STATES V. PEARCE, 275 F.2D 318; GIORDENELLO V.
UNITED STATES, 357 U.S. 480; AND ROVIARO V. UNITED STATES, 353 U.S.
53.  HIS COUNSEL SAID:  "THAT IS, GIORDENELLO STATES THAT THE DEFENDANT
HAS A RIGHT TO HAVE SUCH HEARING (ON SUPPRESSION).  PEARCE AND ROVIARO
STATE WE HAVE A RIGHT IN ADVANCE OF THE HEARING TO DEMAND THE NAMES OF
THE INFORMERS IF THE NAMES ARE ESSENTIAL TO THE DEFENSE OF THE
DEFENDANT IN THE PROSECUTION OF HIS PETITION TO SUPPRESS THE
EVIDENCE."  AND ON THE SECOND HEARING WHEN THE GOVERNMENT OFFERED THE
FURS IN EVIDENCE HE AGAIN URGED HIS MOTION, IN THE ABSENCE OF THE JURY,
INTRODUCING EVIDENCE SHOWING THE "FACTUAL ERRORS" IN THE AFFIDAVIT.  ON
ARGUING THE MOTION, PETITIONER'S COUNSEL SAID:  "HERE IS WHAT PEARCE
SAYS, AND HERE IS WHAT UNITED STATES V. ROVIARO SAYS: 'WHEN IT IS
DEMONSTRATED TO THE COURT THAT IT IS ESSENTIAL TO THE DEFENDANT'S
RIGHTS, CONSTITUTIONAL RIGHTS, THAT INFORMATION BE GIVEN TO HIM SO THAT
HE CAN TEST THE VALIDITY OF THE AFFIDAVIT,' THEN IT MUST BE GIVEN TO
HIM."  CLEARLY HIS RELIANCE ON ROVIARO FOR SUPPPRESSION PURPOSES, WHICH
WAS THE SOLE REASON FOR WHICH IT WAS CITED, WAS ENTIRELY MISPLACED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BRENNAN
AND MR. JUSTICE GOLDBERG CONCUR, DISSENTING. 

JUST PRIOR TO THE PRESENTATION BY THE PROSECUTION OF ITS FIRST
WITNESS AT THE TRIAL, COUNSEL FOR PETITIONER REQUESTED THE NAME OR
NAMES OF THE INFORMERS MENTIONED IN THE SEARCH WARRANT: 

"MR. ECHELES:  ROVIARO V. UNITED STATES (353 U.S. 53), WHICH IS CITED
BY OUR SEVENTH CIRCUIT AS AUTHORITY FOR THIS PROPOSITION, STATES THAT
IF THE INFORMANTS, IF THE NAMES OF THE INFORMANTS ARE NECESSARY TO A
PROPER DEFENSE OR A PROPER PRESENTATION OF THE DEFENDANT'S CASE IN
ATTACKING THE SEARCH WARRANT, THEN IN THE INTEREST OF JUSTICE IT MUST
BE GIVEN TO THE DEFENDANT.  THE GOVERNMENT HAS NO REASON NOT TO GIVE
IT, SAID ROVIARO, AND THAT IS THE CONTROLLING LAW. 

"LET ME DEMONSTRATE HOW IN OUR OPINION THE NAMES OF THE INFORMANTS
ARE NECESSARY." 

COUNSEL THEN WENT ON TO ARGUE WHY DISCLOSURE OF ONE INFORMANT'S NAME
WAS ESSENTIAL TO HIS MOTION TO SUPPRESS.  THEN HE SHIFTED TO ANOTHER
ATTACK STATING: 

"I WOULD SUGGEST THAT NOT ONLY IS THIS INFORMANT NECESSARY TO THE
DEFENDANT BECAUSE IF HE TAKES THE STAND IT WILL DEMONSTRATE THAT SAM
RUGENDORF HAD NOTHING TO DO WITH IT, OR POSSIBLY HIS FALSITY, BUT I
WOULD SUGGEST THAT PERHAPS HE WOULD BE A PRETTY GOOD WITNESS FOR THE
GOVERNMENT, THAT THEY OUGHT NOT TO WANT TO HIDE THE WITNESS, THAT HE
WOULD PRETTY MUCH MAKE OUT A CASE FOR THE GOVERNMENT. 

"IN ANY EVENT, YOUR HONOR, I RELY UPON UNITED STATES V. PEARCE, 275
F.2D, OUR CIRCUIT.  I RELY UPON ROVIARO V. UNITED STATES, 353 U.S. 53. 
AND I RELY UPON GIORDENELLO V. UNITED STATES, 357 U.S. 480, AS BEING
THE PROPER PROCEDURE THAT I AM TRYING TO GET HERE, YOUR HONOR." 

IT IS IMPOSSIBLE TO SAY THAT THIS MOTION RELATED WHOLLY TO QUASH THE
SEARCH WARRANT.  IT IS TRUE THAT PEARCE AND GIORDENELLO INVOLVED SUCH
MOTIONS.  BUT ROVIARO DID NOT.  RATHER IT PRESENTED THE SAME ISSUE THIS
CASE PRESENTS, VIZ., WHETHER THE "INFORMER'S PRIVILEGE," 353 U.S., AT
59, MUST GIVE WAY IN THE INTERESTS OF THE DEFENSE OF THE ACCUSED. 

THE PROSECUTOR OBJECTED, SAYING "THAT IF THE GOVERNMENT IS TO REVEAL
THE NAME OF ANY INFORMANTS THEY MIGHT BE AND PROBABLY WOULD BE
KILLED." 

THE TRIAL JUDGE DENIED THE MOTION AND THE TRIAL STARTED.  DURING THE
TRIAL THE REQUEST WAS REPEATED, COUNSEL FOR PETITIONER SAYING "I NEED
THAT INFORMATION TO DEFEND MY DEFENDANT, YOUR HONOR."  WHATEVER DEFECT,
IF ANY, MAY HAVE BEEN PRESENT IN HIS FIRST MOTION DID NOT APPEAR THIS
TIME.  FOR NOW HE WAS PLAINLY ADDRESSING HIMSELF TO THE TRIAL ON THE
MERITS.  ONCE AGAIN HIS REQUEST WAS DENIED. 

IT IS OBVIOUS THAT THESE REQUESTS WERE MADE NOT ONLY TO CHALLENGE THE
SUFFICIENCY OF THE AFFIDAVIT AS A BASIS OF THE SEARCH WARRANT, BUT ALSO
FOR USE ON THE ISSUE OF GUILT OR INNOCENCE - VIZ., KNOWING POSSESSION
OF STOLEN GOODS.  THE ISSUE WAS CONSIDERED BY THE COURT OF APPEALS,*
316 F.2D 589, 592; AND WE SHOULD DO THE SAME. 

*THE MAJORITY STATES THAT THE DEMAND FOR DISCLOSURE AS IT RELATED TO A
DEFENSE ON THE MERITS "WAS NOT PROPERLY RAISED IN THE TRIAL COURT NOR
PASSED UPON THERE, AND, ACCORDINGLY, MUST BE DENIED HERE."  ANTE, AT
534.  BUT THE TRIAL EXCERPTS REPRODUCED ABOVE AMPLY REBUT THAT
CONTENTION AS IT RELATES TO THE TRIAL.  AND THE COURT OF APPEALS
EXPRESSLY SAID: 

"THE REMAINING POINT RAISED BY DEFENDANT AS ERROR IS THE REFUSAL OF
THE TRIAL COURT TO REQUIRE THE DISCLOSURE OF THE NAME OF THE INFORMER. 
THE DEFENDANT RELIES ON ROVIARO V. UNITED STATES, 353 U.S. 53."  316
F.2D 589, 592. 

AS ALREADY NOTED, ROVIARO DID NOT INVOLVE A CHALLENGE TO THE
SUFFICIENCY OF A SEARCH WARRANT.  IT PRESENTED THE ISSUE THIS CASE
DOES.  ONE REQUESTING DISCLOSURE AND CITING ROVIARO AS AUTHORITY
OBVIOUSLY IS SEEKING TO BRING HIMSELF WITHIN THE SITUATION TO WHICH THE
ROVIARO RULE IS APPLICABLE. 

PETITIONER AND HIS WIFE WERE IN FLORIDA ON VACATION BETWEEN FEBRUARY
17 AND MARCH 4, 1962.  BEFORE THEY LEFT CHICAGO PETITIONER'S BROTHER
LEO - AN ADMITTED "FENCE" FOR STOLEN GOODS - CAME TO HIS HOUSE TO SEE
HIM: 

"LEO ASKED WHO WAS GOING TO LOOK AFTER THE MAIL, CLEAN THE SIDEWALKS
AND EVERYTHING ELSE AND HE TOLD LEO THAT HIS SON JERRY WOULD DO IT.
LEO SAID THAT JERRY HAD TO OPEN THE STORE EVERY MORNING AND STATED THAT
HE GOT DOWN A LITTLE LATER EVERY DAY AND SO WHY NOT LET HIM WATCH THE
HOUSE AND BRING IN THE MAIL.  ACCORDINGLY, HE GAVE HIS BROTHER THE
KEYS. 

"FROM THAT DAY, ON FEBRUARY 17, 1962, UNTIL THIS DAY (THE TIME OF THE
TRIAL) HE HAD NOT SEEN OR TALKED TO HIS BROTHER LEO; NOR HAD LEO
RETURNED THE KEY." 

LEO, THE BROTHER, HAD ONE KEY TO THE HOUSE DURING PETITIONER'S
ABSENCE.  HIS SISTER, HIS SON, AND A NEIGHBOR ALSO HAD KEYS.  SINCE ONE
OF THESE WAS A KNOWN CRIMINAL, AND SINCE THE INFORMANT HAD PERSONALLY
BEEN IN THE BASEMENT OF PETITIONER'S HOME, THE PERTINENCY OF THE
INQUIRY AS TO THE INFORMANT'S NAME BECOMES OBVIOUS. 

SPEAKING OF THE "INFORMER'S PRIVILEGE," WE SAID IN ROVIARO V. UNITED
STATES, 353 U.S. 53, 59: "THE PURPOSE OF THE PRIVILEGE IS THE
FURTHERANCE AND PROTECTION OF THE PUBLIC INTEREST IN EFFECTIVE LAW
ENFORCEMENT.  THE PRIVILEGE RECOGNIZES THE OBLIGATION OF CITIZENS TO
COMMUNICATE THEIR KNOWLEDGE OF THE COMMISSION OF CRIMES TO LAW
ENFORCEMENT OFFICIALS AND, BY PRESERVING THEIR ANONYMITY, ENCOURAGES
THEM TO PERFORM THAT OBLIGATION." 

BUT THERE ARE TIMES WHEN THE PRIVILEGE MUST GIVE WAY.  IN ROVIARO, WE
PUT ONE OF THOSE EXCEPTIONS IN THESE WORDS:  "WHERE THE DISCLOSURE OF
AN INFORMER'S IDENTITY, OR OF THE CONTENTS OF HIS COMMUNICATION, IS
RELEVANT AND HELPFUL TO THE DEFENSE OF AN ACCUSED, OR IS ESSENTIAL TO A
FAIR DETERMINATION OF A CAUSE, THE PRIVILEGE MUST GIVE WAY.  IN THESE
SITUATIONS THE TRIAL COURT MAY REQUIRE DISCLOSURE AND, IF THE
GOVERNMENT WITHHOLDS THE INFORMATION, DISMISS THE ACTION."  ID., AT 60
61. 

IT IS DIFFICULT TO IMAGINE A CLEARER CASE THAN THE PRESENT ONE FOR
APPLICATION OF THAT EXCEPTION. 

THE SOLICITOR GENERAL SEEKS TO AVOID THAT CONCLUSION BY SAYING THAT
EVEN THOUGH THE INFORMANT MIGHT DISCLOSE WHO STOLE THE FURS AND HOW
THEY REACHED THE DEFENDANT'S BASEMENT, "THIS WOULD NOT NECESSARILY HAVE
CAST LIGHT UPON THE ISSUE OF PETITIONER'S KNOWLEDGE."  THE SOLICITOR
GENERAL ALSO ARGUES THAT IT IS HIGHLY CONJECTURAL THAT IDENTIFICATION
OF THE PERSON WHO ADMITTED THE INFORMANT TO THE BASEMENT WOULD
MATERIALLY ILLUMINATE THE QUESTION OF PETITIONER'S KNOWLEDGE.  WE HAVE,
HOWEVER, A CASE WHERE THE ONLY PROOF IMPLICATING DEFENDANT WAS
DISCOVERY OF THE STOLEN FURS IN HIS BASEMENT.  FOUR KEYS TO THE HOUSE
WERE IN THE HANDS OF OUTSIDERS, ONE OF WHOM HAD A CRIMINAL RECORD FOR
TRAFFICKING IN STOLEN GOODS; THE STOLEN FURS MAY HAVE REACHED
DEFENDANT'S BASEMENT DURING HIS ABSENCE AND REMAINED THERE WITHOUT HIS
KNOWLEDGE.  HIS ONLY DEFENSE WOULD BE PROOF THAT SOMEONE WITHOUT HIS
KNOWLEDGE PUT THEM THERE.  WHO THAT PERSON WAS, WHEN HE PLACED THE FURS
IN THE BASEMENT, WHAT HIS MOTIVATIONS WERE IN PLACING THE FURS THERE,
WHAT HIS RELATIONS WITH THE DEFENDANT WERE, WHAT CONNECTIONS HE HAD
WITH THE STOLEN ARTICLES - THESE QUESTIONS GO TO THE VERY HEART OF THE
DEFENSE.  ROVIARO WOULD, THEREFORE, REQUIRE IN THE EXERCISE OF SOUND
DISCRETION DISCLOSURE OF THE INFORMANT.  UNLESS WE ALLOW THAT AMOUNT OF
LEEWAY, WE CAN ONLY REST UNEASY IN THE THOUGHT THAT WE ARE HELPING SEND
AN INNOCENT MAN TO PRISON. 

THE COURT DOES NOT FACE UP TO THIS CRUCIAL ISSUE BECAUSE, WITH DUE
RESPECT, IT TAKES A BARON PARKE APPROACH WHEN EXAMINING THE RECORD, THE
MOTIONS MADE, AND THE EXCEPTIONS TAKEN; AND IT CONCLUDES THAT THE
PROPER TALISMANIC WORDS WERE NOT USED WHEN THE REQUEST FOR THE
INFORMANT'S NAME WAS MADE.  BUT THAT ATTITUDE BELONGS TO AN ANCIENT
REGIME, NOT TO THE ONE WE ADMINISTER UNDER RULE 52(B) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE (SEE SILBER V. UNITED STATES, 370 U.S.
717), WHICH PROVIDES: "PLAIN ERRORS OR DEFECTS AFFECTING SUBSTANTIAL
RIGHTS MAY BE NOTICED ALTHOUGH THEY WERE NOT BROUGHT TO THE ATTENTION
OF THE COURT."  OUR RULE 40(1)(D)(2) IS TO THE SAME EFFECT.  ENOUGH HAS
BEEN SAID TO SHOW THAT THE ISSUE WAS SQUARELY RAISED IN THE TRIAL COURT
AND SQUARELY PASSED UPON BY THE COURT OF APPEALS.  BUT IF IT IS ASSUMED
ARGUENDO THAT THE POINT WAS NOT SQUARELY RAISED, FEW CLEARER CASES FOR
APPLYING RULE 52(B) HAVE APPEARED, AT LEAST IN RECENT YEARS. 
..END :








JOHN WILEY & SONS V. LIVINGSTON, PRESIDENT OF DISTRICT 65, RETAIL,
WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO 376 U.S. 543 


NO. 91.  ARGUED JANUARY 9, 13, 1964.  - DECIDED MARCH 30, 1964.  - 313
F.2D 52, AFFIRMED, IN PART ON OTHER GROUNDS. 


RESPONDENT LABOR UNION BROUGHT AN ACTION UNDER SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT TO COMPEL ARBITRATION UNDER A COLLECTIVE
BARGAINING AGREEMENT EXECUTED BY A COMPANY WHICH THE PETITIONER
ACQUIRED BY MERGER.  THE DISTRICT COURT DENIED RELIEF BUT THE COURT OF
APPEALS REVERSED AND DIRECTED ARBITRATION.  HELD: 

1.  THE COURTS DETERMINE WHETHER ARBITRATION IS REQUIRED, BASED ON
THE AGREEMENT.  ATKINSON V. SINCLAIR REFINING CO., 370 U.S. 238,
FOLLOWED.  PP. 546-547. 

2.  THE SUBSTANTIVE LAW WHICH CONTROLS SUITS UNDER SEC. 301 OF THE
ACT IS FEDERAL LAW.  TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S.
448, FOLLOWED.  P. 548. 

3.  RIGHTS OF EMPLOYEES UNDER A COLLECTIVE BARGAINING AGREEMENT ARE
NOT AUTOMATICALLY LOST BY THE DISAPPEARANCE BY MERGER OF THE EMPLOYER,
AND IN APPROPRIATE CIRCUMSTANCES THE SUCCESSOR EMPLOYER MAY BE REQUIRED
TO ARBITRATE UNDER THE CONTRACT.  P. 548. 

4.  ARBITRATION HAS A KEY ROLE IN EFFECTUATING NATIONAL LABOR POLICY;
AND WHEN THERE IS SUBSTANTIAL CONTINUITY OF IDENTITY IN THE BUSINESS
ENTERPRISE AND A CLEAR ASSERTION BY THE UNION RIGHTS UNDER THE
AGREEMENT, THE DUTY TO ARBITRATE SURVIVES THE MERGER.  PP. 549-551. 

5.  PROCEDURAL QUESTIONS GROWING OUT OF A DISPUTE AND BEARING ON ITS
DISPOSITION ARE TO BE DETERMINED BY THE ARBITRATOR.  PP. 555-559. 

JOHN WILEY & SONS, INC., V. LIVINGSTON, PRESIDENT OF DISTRICT 65,
RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BY A UNION, PURSUANT TO SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT, 61 STAT. 136, 156, 29 U.S.C. SEC. 185, TO
COMPEL ARBITRATION UNDER A COLLECTIVE BARGAINING AGREEMENT.  THE MAJOR
QUESTIONS PRESENTED ARE (1) WHETHER A CORPORATE EMPLOYER MUST ARBITRATE
WITH A UNION UNDER A BARGAINING AGREEMENT BETWEEN THE UNION AND ANOTHER
CORPORATION WHICH HAS MERGED WITH THE EMPLOYER, AND, IF SO, (2) WHETHER
THE COURTS OR THE ARBITRATOR IS THE APPROPRIATE BODY TO DECIDE WHETHER
PROCEDURAL PREREQUISITES WHICH, UNDER THE BARGAINING AGREEMENT,
CONDITION THE DUTY TO ARBITRATE HAVE BEEN MET.  BECAUSE OF THE
IMPORTANCE OF BOTH QUESTIONS TO THE REALIZATION OF NATIONAL LABOR
POLICY, WE GRANTED CERTIORARI (373 U.S. 908) TO REVIEW A JUDGMENT OF
THE COURT OF APPEALS DIRECTING ARBITRATION (313 F.2D 52), IN REVERSAL
OF THE DISTRICT COURT WHICH HAD REFUSED SUCH RELIEF (203 F. SUPP.
171).  WE AFFIRM THE JUDGMENT BELOW, BUT, WITH RESPECT TO THE FIRST
QUESTION ABOVE, ON GROUNDS WHICH MAY DIFFER FROM THOSE OF THE COURT OF
APPEALS, WHOSE ANSWER TO THAT QUESTION IS UNCLEAR. 

                                   I. 

DISTRICT 65, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO,
ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT WITH INTERSCIENCE
PUBLISHERS, INC., A PUBLISHING FIRM, FOR A TERM EXPIRING ON JANUARY 31,
1962.  THE AGREEMENT DID NOT CONTAIN AN EXPRESS PROVISION MAKING IT
BINDING ON SUCCESSORS OF INTERSCIENCE.  ON OCTOBER 2, 1961,
INTERSCIENCE MERGED WITH THE PETITIONER, JOHN WILEY & SONS, INC.,
ANOTHER PUBLISHING FIRM, AND CEASED TO DO BUSINESS AS A SEPARATE
ENTITY.  THERE IS NO SUGGESTION THAT THE MERGER WAS NOT FOR GENUINE
BUSINESS REASONS. 

AT THE TIME OF THE MERGER INTERSCIENCE HAD ABOUT 80 EMPLOYEES, OF
WHOM 40 WERE REPRESENTED BY THIS UNION.  IT HAD A SINGLE PLANT IN NEW
YORK CITY, AND DID AN ANNUAL BUSINESS OF SOMEWHAT OVER $1,000,000. 
WILEY WAS A MUCH LARGER CONCERN, HAVING SEPARATE OFFICE AND WAREHOUSE
FACILITIES AND ABOUT 300 EMPLOYEES, AND DOING AN ANNUAL BUSINESS OF
MORE THAN $9,000,000.  NONE OF WILEY'S EMPLOYEES WAS REPRESENTED BY A
UNION. 

IN DISCUSSIONS BEFORE AND AFTER THE MERGER, THE UNION AND
INTERSCIENCE (LATER WILEY) WERE UNABLE TO AGREE ON THE EFFECT OF THE
MERGER ON THE COLLECTIVE BARGAINING AGREEMENT AND ON THE RIGHTS UNDER
IT OF THOSE COVERED EMPLOYEES HIRED BY WILEY.  THE UNION'S POSITION WAS
THAT DESPITE THE MERGER IT CONTINUED TO REPRESENT THE COVERED
INTERSCIENCE EMPLOYEES TAKEN OVER BY WILEY, AND THAT WILEY WAS
OBLIGATED TO RECOGNIZE CERTAIN RIGHTS OF SUCH EMPLOYEES WHICH HAD
"VESTED" UNDER THE INTERSCIENCE BARGAINING AGREEMENT.  SUCH RIGHTS,
MORE FULLY DESCRIBED BELOW, CONCERNED MATTERS TYPICALLY COVERED BY
COLLECTIVE BARGAINING AGREEMENTS, SUCH AS SENIORITY STATUS, SEVERANCE
PAY, ETC.  THE UNION CONTENDED ALSO THAT WILEY WAS REQUIRED TO MAKE
CERTAIN PENSION FUND PAYMENTS CALLED FOR UNDER THE INTERSCIENCE
BARGAINING AGREEMENT. 

WILEY, THOUGH RECOGNIZING FOR PURPOSES OF ITS OWN PENSION PLAN THE
INTERSCIENCE SERVICE OF THE FORMER INTERSCIENCE EMPLOYEES, ASSERTED
THAT THE MERGER TERMINATED THE BARGAINING AGREEMENT FOR ALL PURPOSES. 
IT REFUSED TO RECOGNIZE THE UNION AS BARGAINING AGENT OR TO ACCEDE TO
THE UNION'S CLAIMS ON BEHALF OF INTERSCIENCE EMPLOYEES.  ALL SUCH
EMPLOYEES, EXCEPT A FEW WHO ENDED THEIR WILEY EMPLOYMENT WITH SEVERANCE
PAY AND FOR WHOM NO RIGHTS ARE ASSERTED HERE, CONTINUED IN WILEY'S
EMPLOY. 

NO SATISFACTORY SOLUTION HAVING BEEN REACHED, THE UNION, ONE WEEK
BEFORE THE EXPIRATION DATE OF THE INTERSCIENCE BARGAINING AGREEMENT,
COMMENCED THIS ACTION TO COMPEL ARBITRATION. 

                                  II. 

THE THRESHOLD QUESTION IN THIS CONTROVERSY IS WHO SHALL DECIDE
WHETHER THE ARBITRATION PROVISIONS OF THE COLLECTIVE BARGAINING
AGREEMENT SURVIVED THE WILEY-INTERSCIENCE MERGER, SO AS TO BE OPERATIVE
AGAINST WILEY.  BOTH PARTIES URGE THAT THIS QUESTION IS FOR THE
COURTS.  PAST CASES LEAVE NO DOUBT THAT THIS IS CORRECT.  (FN1)  "UNDER
OUR DECISIONS, WHETHER OR NOT THE COMPANY WAS BOUND TO ARBITRATE, AS
WELL AS WHAT ISSUES IT MUST ARBITRATE, IS A MATTER TO BE DETERMINED BY
THE COURT ON THE BASIS OF THE CONTRACT ENTERED INTO BY THE PARTIES." 
ATKINSON V. SINCLAIR REFINING CO., 370 U.S. 238, 241.  ACCORD, E.G.,
UNITED STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574,
582.  THE PROBLEM IN THOSE CASES WAS WHETHER AN EMPLOYER, CONCEDEDLY
PARTY TO AND BOUND BY A CONTRACT WHICH CONTAINED AN ARBITRATION
PROVISION, HAD AGREED TO ARBITRATE DISPUTES OF A PARTICULAR KIND. 
HERE, THE QUESTION IS WHETHER WILEY, WHICH DID NOT ITSELF SIGN THE
COLLECTIVE BARGAINING AGREEMENT ON WHICH THE UNION'S CLAIM TO
ARBITRATION DEPENDS, IS BOUND AT ALL BY THE AGREEMENT'S ARBITRATION
PROVISION.  THE REASON REQUIRING THE COURTS TO DETERMINE THE ISSUE IS
THE SAME IN BOTH SITUATIONS.  THE DUTY TO ARBITRATE BEING OF
CONTRACTUAL ORIGIN, A COMPULSORY SUBMISSION TO ARBITRATION CANNOT
PRECEDE JUDICIAL DETERMINATION THAT THE COLLECTIVE BARGAINING AGREEMENT
DOES IN FACT CREATE SUCH A DUTY.  THUS, JUST AS AN EMPLOYER HAS NO
OBLIGATION TO ARBITRATE ISSUES WHICH IT HAS NOT AGREED TO ARBITRATE, SO
A FORTIORI, IT CANNOT BE COMPELLED TO ARBITRATE IF AN ARBITRATION
CLAUSE DOES NOT BIND IT AT ALL. 

THE UNANIMITY OF VIEWS ABOUT WHO SHOULD DECIDE THE QUESTION OF
ARBITRABILITY DOES NOT, HOWEVER, PRESAGE THE PARTIES' ACCORD ABOUT WHAT
IS THE CORRECT DECISION.  WILEY, OBJECTING TO ARBITRATION, ARGUES THAT
IT NEVER WAS A PARTY TO THE COLLECTIVE BARGAINING AGREEMENT, AND THAT,
IN ANY EVENT, THE UNION LOST ITS STATUS AS REPRESENTATIVE OF THE FORMER
INTERSCIENCE EMPLOYEES WHEN THEY WERE MINGLED IN A LARGER WILEY UNIT OF
EMPLOYEES.  THE UNION ARGUES THAT WILEY, AS SUCCESSOR TO INTERSCIENCE,
IS BOUND BY THE LATTER'S AGREEMENT, AT LEAST SUFFICIENTLY TO REQUIRE IT
TO ARBITRATE.  THE UNION RELIES ON SEC. 90 OF THE N.Y. STOCK
CORPORATION LAW, WHICH PROVIDES, AMONG OTHER THINGS, THAT NO "CLAIM OR
DEMAND FOR ANY CAUSE" AGAINST A CONSTITUENT CORPORATION SHALL BE
EXTINGUISHED BY A CONSOLIDATION.  (FN2)  ALTERNATIVELY, THE UNION
ARGUES THAT, APART FROM SEC. 90, FEDERAL LAW REQUIRES THAT ARBITRATION
GO FORWARD, LEST THE POLICY FAVORING ARBITRATION FREQUENTLY BE
UNDERMINED BY CHANGES IN CORPORATE ORGANIZATION. 

FEDERAL LAW, FASHIONED "FROM THE POLICY OF OUR NATIONAL LABOR LAWS,"
CONTROLS.  TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, 456. 
STATE LAW MAY BE UTILIZED SO FAR AS IT IS OF AID IN THE DEVELOPMENT OF
CORRECT PRINCIPLES OR THEIR APPLICATION IN A PARTICULAR CASE, ID., AT
457, BUT THE LAW WHICH ULTIMATELY RESULTS IS FEDERAL.  WE HOLD THAT THE
DISAPPEARANCE BY MERGER OF A CORPORATE EMPLOYER WHICH HAS ENTERED INTO
A COLLECTIVE BARGAINING AGREEMENT WITH A UNION DOES NOT AUTOMATICALLY
TERMINATE ALL RIGHTS OF THE EMPLOYEES COVERED BY THE AGREEMENT, AND
THAT, IN APPROPRIATE CIRCUMSTANCES, PRESENT HERE, THE SUCCESSOR
EMPLOYER MAY BE REQUIRED TO ARBITRATE WITH THE UNION UNDER THE
AGREEMENT. 

THIS COURT HAS IN THE PAST RECOGNIZED THE CENTRAL ROLE OF ARBITRATION
IN EFFECTUATING NATIONAL LABOR POLICY.  THUS, IN WARRIOR & GULF
NAVIGATION CO., SUPRA, AT 578, ARBITRATION WAS DESCRIBED AS "THE
SUBSTITUTE FOR INDUSTRIAL STRIFE," AND AS "PART AND PARCEL OF THE
COLLECTIVE BARGAINING PROCESS ITSELF."  IT WOULD DEROGATE FROM "THE
FEDERAL POLICY OF SETTLING LABOR DISPUTES BY ARBITRATION," UNITED
STEELWORKERS V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593, 596, IF A
CHANGE IN THE CORPORATE STRUCTURE OR OWNERSHIP OF A BUSINESS ENTERPRISE
HAD THE AUTOMATIC CONSEQUENCE OF REMOVING A DUTY TO ARBITRATE
PREVIOUSLY ESTABLISHED; THIS IS SO AS MUCH IN CASES LIKE THE PRESENT,
WHERE THE CONTRACTING EMPLOYER DISAPPEARS INTO ANOTHER BY MERGER, AS IN
THOSE IN WHICH ONE OWNER REPLACES ANOTHER BUT THE BUSINESS ENTITY
REMAINS THE SAME. 

EMPLOYEES, AND THE UNION WHICH REPRESENTS THEM, ORDINARILY DO NOT
TAKE PART IN NEGOTIATIONS LEADING TO A CHANGE IN CORPORATE OWNERSHIP. 
THE NEGOTIATIONS WILL ORDINARILY NOT CONCERN THE WELL-BEING OF THE
EMPLOYEES, WHOSE ADVANTAGE OR DISADVANTAGE, POTENTIALLY GREAT, WILL
INEVITABLY BE INCIDENTAL TO THE MAIN CONSIDERATIONS.  THE OBJECTIVES OF
NATIONAL LABOR POLICY, REFLECTED IN ESTABLISHED PRINCIPLES OF FEDERAL
LAW, REQUIRE THAT THE RIGHTFUL PREROGATIVE OF OWNERS INDEPENDENTLY TO
REARRANGE THEIR BUSINESSES AND EVEN ELIMINATE THEMSELVES AS EMPLOYERS
BE BALANCED BY SOME PROTECTION TO THE EMPLOYEES FROM A SUDDEN CHANGE IN
THE EMPLOYMENT RELATIONSHIP.  THE TRANSITION FROM ONE CORPORATE
ORGANIZATION TO ANOTHER WILL IN MOST CASES BE EASED AND INDUSTRIAL
STRIFE AVOIDED IF EMPLOYEES' CLAIMS CONTINUE TO BE RESOLVED BY
ARBITRATION RATHER THAN BY "THE RELATIVE STRENGTH ...  OF THE
CONTENDING FORCES," WARRIOR & GULF, SUPRA, AT 580. 

THE PREFERENCE OF NATIONAL LABOR POLICY FOR ARBITRATION AS A
SUBSTITUTE FOR TESTS OF STRENGTH BETWEEN CONTENDING FORCES COULD BE
OVERCOME ONLY IF OTHER CONSIDERATIONS COMPELLINGLY SO DEMANDED.  WE
FIND NONE.  WHILE THE PRINCIPLES OF LAW GOVERNING ORDINARY CONTRACTS
WOULD NOT BIND TO A CONTRACT AN UNCONSENTING SUCCESSOR TO A CONTRACTING
PARTY, (FN3) A COLLECTIVE BARGAINING AGREEMENT IS NOT AN ORDINARY
CONTACT.  "  ...  IT IS A GENERALIZED CODE TO GOVERN A MYRIAD OF CASES
WHICH THE DRAFTSMEN CANNOT WHOLLY ANTICIPATE  ...  .  THE COLLECTIVE
AGREEMENT COVERS THE WHOLE EMPLOYMENT RELATIONSHIP.   IT CALLS INTO
BEING A NEW COMMON LAW - THE COMMON LAW OF A PARTICULAR INDUSTRY OR OF
A PARTICULAR PLANT."  WARRIOR & GULF, SUPRA, AT 578-579.  CENTRAL TO
THE PECULIAR STATUS AND FUNCTION OF A COLLECTIVE BARGAINING AGREEMENT
IS THE FACT, DICTATED BOTH BY CIRCUMSTANCE, SEE ID., AT 580, AND BY THE
REQUIREMENTS OF THE NATIONAL LABOR RELATIONS ACT, THAT IT IS NOT IN ANY
REAL SENSE THE SIMPLE PRODUCT OF A CONSENSUAL RELATIONSHIP.  THEREFORE,
ALTHOUGH THE DUTY TO ARBITRATE, AS WE HAVE SAID, SUPRA, PP. 546-547,
MUST BE FOUNDED ON A CONTRACT, THE IMPRESSIVE POLICY CONSIDERATIONS
FAVORING ARBITRATION ARE NOT WHOLLY OVERBORNE BY THE FACT THAT WILEY
DID NOT SIGN THE CONTRACT BEING CONSTRUED.  (FN4)  THIS CASE CANNOT
READILY BE ASSIMILATED TO THE CATEGORY OF THOSE IN WHICH THERE IS NO
CONTRACT WHATEVER, OR NONE WHICH IS REASONABLY RELATED TO THE PARTY
SOUGHT TO BE OBLIGATED.  THERE WAS A CONTRACT, AND INTERSCIENCE,
WILEY'S PREDECESSOR, WAS PARTY TO IT.  WE THUS FIND WILEY'S OBLIGATION
TO ARBITRATE THIS DISPUTE IN THE INTERSCIENCE CONTRACT CONSTRUED IN THE
CONTEXT OF A NATIONAL LABOR POLICY. 

WE DO NOT HOLD THAT IN EVERY CASE IN WHICH THE OWNERSHIP OR CORPORATE
STRUCTURE OF AN ENTERPRISE IS CHANGED THE DUTY TO ARBITRATE SURVIVES. 
AS INDICATED ABOVE, THERE MAY BE CASES IN WHICH THE LACK OF ANY
SUBSTANTIAL CONTINUITY OF IDENTITY IN THE BUSINESS ENTERPRISE BEFORE
AND AFTER A CHANGE WOULD MAKE A DUTY TO ARBITRATE SOMETHING IMPOSED
FROM WITHOUT, NOT REASONABLY TO BE FOUND IN THE PARTICULAR BARGAINING
AGREEMENT AND THE ACTS OF THE PARTIES INVOLVED.  SO TOO, WE DO NOT RULE
OUT THE POSSIBILITY THAT A UNION MIGHT ABANDON ITS RIGHT TO ARBITRATION
BY FAILING TO MAKE ITS CLAIMS KNOWN.  NEITHER OF THESE SITUATIONS IS
BEFORE THE COURT.  ALTHOUGH WILEY WAS SUBSTANTIALLY LARGER THAN
INTERSCIENCE, RELEVANT SIMILARITY AND CONTINUITY OF OPERATION ACROSS
THE CHANGE IN OWNERSHIP IS ADEQUATELY EVIDENCED BY THE WHOLESALE
TRANSFER OF INTERSCIENCE EMPLOYEES TO THE WILEY PLANT, APPARENTLY
WITHOUT DIFFICULTY.  THE UNION MADE ITS POSITION KNOWN WELL BEFORE THE
MERGER AND NEVER DEPARTED FROM IT.  IN ADDITION, WE DO NOT SUGGEST ANY
VIEW ON THE QUESTIONS SURROUNDING A CERTIFIED UNION'S CLAIM TO
CONTINUED REPRESENTATIVE STATUS FOLLOWING A CHANGE IN OWNERSHIP.  SEE,
E.G., LABOR BOARD V. ALUMINUM TUBULAR CORP., 299 F.2D 595, 598-600;
LABOR BOARD V. MCFARLAND, 306 F.2D 219; CRUSE MOTORS, INC., 105
N.L.R.B. 242, 247.  THIS UNION DOES NOT ASSERT THAT IT HAS ANY
BARGAINING RIGHTS INDEPENDENT OF THE INTERSCIENCE AGREEMENT; IT SEEKS
TO ARBITRATE CLAIMS BASED ON THAT AGREEMENT, NOW EXPIRED, NOT TO
NEGOTIATE A NEW AGREEMENT.  (FN5)

                         III. 

BEYOND DENYING ITS OBLIGATION TO ARBITRATE AT ALL, WILEY URGES THAT
THE UNION'S GRIEVANCES ARE NOT WITHIN THE SCOPE OF THE ARBITRATION
CLAUSE.  THE ISSUES WHICH THE UNION SOUGHT TO ARBITRATE, AS SET OUT IN
THE COMPLAINT, ARE: 

"(A)  WHETHER THE SENIORITY RIGHTS BUILT UP BY THE INTERSCIENCE
EMPLOYEES MUST BE ACCORDED TO SAID EMPLOYEES NOW AND AFTER JANUARY 30,
1962. 

"(B)  WHETHER, AS PART OF THE WAGE STRUCTURE OF THE EMPLOYEES, THE
COMPANY IS UNDER AN OBLIGATION TO CONTINUE TO MAKE CONTRIBUTIONS TO
DISTRICT 65 SECURITY PLAN AND DISTRICT 65 SECURITY PLAN PENSION FUND
NOW AND AFTER JANUARY 30, 1962. 

"(C)  WHETHER THE JOB SECURITY AND GRIEVANCE PROVISIONS OF THE
CONTRACT BETWEEN THE PARTIES SHALL CONTINUE IN FULL FORCE AND EFFECT. 

"(D)  WHETHER THE COMPANY MUST OBLIGATE ITSELF TO CONTINUE LIABLE NOW
AND AFTER JANUARY 30, 1962 AS TO SEVERANCE PAY UNDER THE CONTRACT. 
"(E)  WHETHER THE COMPANY MUST OBLIGATE ITSELF TO CONTINUE LIABLE NOW
AND AFTER JANUARY 30, 1962 FOR VACATION PAY UNDER THE CONTRACT." 

ARBITRATION AS THE FINAL STAGE OF GRIEVANCE PROCEDURES WHICH ARE STATED
TO BE THE "SOLE MEANS OF OBTAINING ADJUSTMENT" OF "ANY DIFFERENCES,
GRIEVANCE OR DISPUTE BETWEEN THE EMPLOYER AND THE UNION ARISING OUT OF
OR RELATING TO THIS AGREEMENT, OR ITS INTERPRETATION OR APPLICATION, OR
ENFORCEMENT  ...  ."  THERE ARE A NUMBER OF SPECIFIC EXCEPTIONS TO THE
COVERAGE OF THE GRIEVANCE PROCEDURES, NONE OF WHICH IS APPLICABLE
HERE.  (FN6)  APART FROM THEM, THE INTENDED WIDE BREADTH OF THE
ARBITRATION CLAUSE IS REFLECTED BY SEC. 16.9 OF THE AGREEMENT WHICH
PROVIDES, WITH AN IRRELEVANT EXCEPTION: 

"  ...  THE ARBITRATION PROCEDURE HEREIN SET FORTH IS THE SOLE AND
EXCLUSIVE REMEDY OF THE PARTIES HERETO AND THE EMPLOYEES COVERED
HEREBY, FOR ANY CLAIMED VIOLATIONS OF THIS CONTRACT, AND FOR ANY AND
ALL ACTS OR OMISSIONS CLAIMED TO HAVE BEEN COMMITTED BY EITHER PARTY
DURING THE TERM OF THIS AGREEMENT, AND SUCH ARBITRATION PROCEDURE SHALL
BE (EXCEPT TO ENFORCE, VACATE, OR MODIFY AWARDS) IN LIEU OF ANY AND ALL
OTHER REMEDIES, FORUMS AT LAW, IN EQUITY OR OTHERWISE WHICH WILL OR MAY
BE AVAILABLE TO EITHER OF THE PARTIES  ...  ." 

ALL OF THE UNION'S GRIEVANCES CONCERN CONDITIONS OF EMPLOYMENT
TYPICALLY COVERED BY COLLECTIVE BARGAINING AGREEMENTS AND SUBMITTED TO
ARBITRATION IF OTHER GRIEVANCE PROCEDURES FAIL.  SPECIFIC PROVISION FOR
EACH OF THEM IS MADE IN THE INTERSCIENCE AGREEMENT.  (FN7)  THERE IS
THUS NO QUESTION THAT HAD A DISPUTE CONCERNING ANY OF THESE SUBJECTS,
SUCH AS SENIORITY RIGHTS OR SEVERANCE PAY, ARISEN BETWEEN THE UNION AND
INTERSCIENCE PRIOR TO THE MERGER, IT WOULD HAVE BEEN ARBITRABLE.  WILEY
ARGUES, HOWEVER, THAT THE UNION'S CLAIMS ARE PLAINLY OUTSIDE THE SCOPE
OF THE ARBITRATION CLAUSE: FIRST, BECAUSE THE AGREEMENT DID NOT EMBRACE
POST-MERGER CLAIMS, AND, SECOND, BECAUSE THE CLAIMS RELATE TO A PERIOD
BEYOND THE LIMITED TERM OF THE AGREEMENT. 

IN ALL PROBABILITY, THE SITUATION CREATED BY THE MERGER WAS ONE NOT
EXPRESSLY CONTEMPLATED BY THE UNION OR INTERSCIENCE WHEN THE AGREEMENT
WAS MADE IN 1960.  FAIRLY TAKEN, HOWEVER, THE UNION'S DEMANDS
COLLECTIVELY RAISE THE QUESTION WHICH UNDERLIES THE WHOLE LITIGATION:
WHAT IS THE EFFECT OF THE MERGER ON THE RIGHTS OF COVERED EMPLOYEES? 
IT WOULD BE INCONSISTENT WITH OUR HOLDING THAT THE OBLIGATION TO
ARBITRATE SURVIVED THE MERGER WERE WE TO HOLD THAT THE FACT OF THE
MERGER, WITHOUT MORE, REMOVED CLAIMS OTHERWISE PLAINLY ARBITRABLE FROM
THE SCOPE OF THE ARBITRATION CLAUSE. 

IT IS TRUE THAT THE UNION HAS FRAMED ITS ISSUES TO CLAIM RIGHTS NOT
ONLY "NOW" - AFTER THE MERGER BUT DURING THE TERM OF THE AGREEMENT -
BUT ALSO AFTER THE AGREEMENT EXPIRED BY ITS TERMS.  CLAIMED RIGHTS
DURING THE TERM OF THE AGREEMENT, AT LEAST, ARE UNQUESTIONABLY WITHIN
THE ARBITRATION CLAUSE; WE DO NOT UNDERSTAND WILEY TO URGE THAT THE
UNION'S CLAIMS TO ALL SUCH RIGHTS HAVE BECOME MOOT BY REASON OF THE
EXPIRATION OF THE AGREEMENT.  (FN8)  AS TO CLAIMED RIGHTS "AFTER
JANUARY 30, 1962," IT IS REASONABLE TO READ THE CLAIMS AS BASED SOLELY
ON THE UNION'S CONSTRUCTION OF THE INTERSCIENCE AGREEMENT IN SUCH A WAY
THAT, HAD THERE BEEN NO MERGER, INTERSCIENCE WOULD HAVE BEEN REQUIRED
TO DISCHARGE CERTAIN OBLIGATIONS NOTWITHSTANDING THE EXPIRATION OF THE
AGREEMENT.  (FN9)  WE SEE NO REASON WHY PARTIES COULD NOT IF THEY SO
CHOSE AGREE TO THE ACCRUAL OF RIGHTS DURING THE TERM OF AN AGREEMENT
AND THEIR REALIZATION AFTER THE AGREEMENT HAD EXPIRED.  OF COURSE, THE
UNION MAY NOT USE ARBITRATION TO ACQUIRE NEW RIGHTS AGAINST WILEY ANY
MORE THAN IT COULD HAVE USED ARBITRATION TO NEGOTIATE A NEW CONTRACT
WITH INTERSCIENCE, HAD THE EXISTING CONTRACT EXPIRED AND RENEWAL
NEGOTIATIONS BROKEN DOWN. 

WHETHER OR NOT THE UNION'S DEMANDS HAVE MERIT WILL BE DETERMINED BY
THE ARBITRATOR IN LIGHT OF THE FULLY DEVELOPED FACTS.  IT IS SUFFICIENT
FOR PRESENT PURPOSES THAT THE DEMANDS ARE NOT SO PLAINLY UNREASONABLE
THAT THE SUBJECT MATTER OF THE DISPUTE MUST BE REGARDED AS
NONARBITRABLE BECAUSE IT CAN BE SEEN IN ADVANCE THAT NO AWARD TO THE
UNION COULD RECEIVE JUDICIAL SANCTION.  SEE WARRIOR & GULF, SUPRA, AT
582-583. 

                                  IV. 

WILEY'S FINAL OBJECTION TO ARBITRATION RAISES THE QUESTION OF SO
CALLED "PROCEDURAL ARBITRABILITY."  THE INTERSCIENCE AGREEMENT PROVIDES
FOR ARBITRATION AS THE THIRD STAGE OF THE GRIEVANCE PROCEDURE.  "STEP
1" PROVIDES FOR "A CONFERENCE BETWEEN THE AFFECTED EMPLOYEE, A UNION
STEWARD AND THE EMPLOYER, OFFICER OR EXEMPT SUPERVISORY PERSON IN
CHARGE OF HIS DEPARTMENT."  IN "STEP 2," THE GRIEVANCE IS SUBMITTED TO
"A CONFERENCE BETWEEN AN OFFICER OF THE EMPLOYER, OR THE EMPLOYER'S
REPRESENTATIVE DESIGNATED FOR THAT PURPOSE, THE UNION SHOP COMMITTEE
AND/OR A REPRESENTATIVE OF THE UNION."  ARBITRATION IS REACHED UNDER
"STEP 3" IN THE EVENT THAT THE GRIEVANCE SHALL NOT HAVE BEEN RESOLVED
OR SETTLED IN 'STEP 2.'"  (FN10)  WILEY ARGUES THAT SINCE STEPS 1 AND 2
HAVE NOT BEEN FOLLOWED, AND SINCE THE DUTY TO ARBITRATE ARISES ONLY IN
STEP 3, IT HAS NO DUTY TO ARBITRATE THIS DISPUTE.  (FN11)
SPECIFICALLY, WILEY URGES THAT THE QUESTION WHETHER "PROCEDURAL"
CONDITIONS TO ARBITRATION HAVE BEEN MET MUST BE DECIDED BY THE COURT
AND NOT THE ARBITRATOR.  (FN12)

WE THINK THAT LABOR DISPUTES OF THE KIND INVOLVED HERE CANNOT BE
BROKEN DOWN SO EASILY INTO THEIR "SUBSTANTIVE" AND "PROCEDURAL"
ASPECTS.  QUESTIONS CONCERNING THE PROCEDURAL PREREQUISITES TO
ARBITRATION DO NOT ARISE IN A VACUUM; THEY DEVELOP IN THE CONTEXT OF AN
ACTUAL DISPUTE ABOUT THE RIGHTS OF THE PARTIES TO THE CONTRACT OR THOSE
COVERED BY IT.  IN THIS CASE, FOR EXAMPLE, THE UNION ARGUES THAT
WILEY'S CONSISTENT REFUSAL TO RECOGNIZE THE UNION'S REPRESENTATIVE
STATUS AFTER THE MERGER MADE IT "UTTERLY FUTILE - AND A LITTLE BIT
RIDICULOUS TO FOLLOW THE GRIEVANCE STEPS AS SET FORTH IN THE
CONTRACT."  BRIEF, P. 41.  IN ADDITION, THE UNION ARGUES THAT TIME
LIMITATIONS IN THE GRIEVANCE PROCEDURE ARE NOT CONTROLLING BECAUSE
WILEY'S VIOLATIONS OF THE BARGAINING AGREEMENT WERE "CONTINUING." 
THESE ARGUMENTS IN RESPONSE TO WILEY'S "PROCEDURAL" CLAIM ARE
MEANINGLESS UNLESS SET IN THE BACKGROUND OF THE MERGER AND THE
NEGOTIATIONS SURROUNDING IT. 

DOUBT WHETHER GRIEVANCE PROCEDURES OR SOME PART OF THEM APPLY TO A
PARTICULAR DISPUTE, WHETHER SUCH PROCEDURES HAVE BEEN FOLLOWED OR
EXCUSED, OR WHETHER THE UNEXCUSED FAILURE TO FOLLOW THEM AVOIDS THE
DUTY TO ARBITRATE CANNOT ORDINARILY BE ANSWERED WITHOUT CONSIDERATION
OF THE MERITS OF THE DISPUTE WHICH IS PRESENTED FOR ARBITRATION.  IN
THIS CASE, ONE'S VIEW OF THE UNION'S RESPONSES TO WILEY'S "PROCEDURAL"
ARGUMENTS DEPENDS TO A LARGE EXTENT ON HOW ONE ANSWERS QUESTIONS
BEARING ON THE BASIC ISSUE, THE EFFECT OF THE MERGER; E.G., WHETHER OR
NOT THE MERGER WAS A POSSIBILITY CONSIDERED BY INTERSCIENCE AND THE
UNION DURING THE NEGOTIATION OF THE CONTRACT.  IT WOULD BE A CURIOUS
RULE WHICH REQUIRED THAT INTERTWINED ISSUES OF "SUBSTANCE" AND
"PROCEDURE" GROWING OUT OF A SINGLE DISPUTE AND RAISING THE SAME
QUESTIONS ON THE SAME FACTS HAD TO BE CARVED UP BETWEEN TWO DIFFERENT
FORUMS, ONE DECIDING AFTER THE OTHER.  NEITHER LOGIC NOR CONSIDERATIONS
OF POLICY COMPEL SUCH A RESULT. 

ONCE IT IS DETERMINED, AS WE HAVE, THAT THE PARTIES ARE OBLIGATED TO
SUBMIT THE SUBJECT MATTER OF A DISPUTE TO ARBITRATION, "PROCEDURAL"
QUESTIONS WHICH GROW OUT OF THE DISPUTE AND BEAR ON ITS FINAL
DISPOSITION SHOULD BE LEFT TO THE ARBITRATOR.  EVEN UNDER A CONTRARY
RULE, A COURT COULD DENY ARBITRATION ONLY IF IT COULD CONFIDENTLY BE
SAID NOT ONLY THAT A CLAIM WAS STRICTLY "PROCEDURAL," AND THEREFORE
WITHIN THE PURVIEW OF THE COURT, BUT ALSO THAT IT SHOULD OPERATE TO BAR
ARBITRATION ALTOGETHER, AND NOT MERELY LIMIT OR QUALIFY AN ARBITRAL
AWARD.  IN VIEW OF THE POLICIES FAVORING ARBITRATION AND THE PARTIES'
ADOPTION OF ARBITRATION AS THE PREFERRED MEANS OF SETTLING DISPUTES,
SUCH CASES ARE LIKELY TO BE RARE INDEED.  IN ALL OTHER CASES, THOSE IN
WHICH ARBITRATION GOES FORWARD, THE ARBITRATOR WOULD ORDINARILY REMAIN
FREE TO RECONSIDER THE GROUND COVERED BY THE COURT INSOFAR AS IT BORE
ON THE MERITS OF THE DISPUTE, USING THE FLEXIBLE APPROACHES FAMILIAR TO
ARBITRATION.  RESERVATION OF "PROCEDURAL" ISSUES FOR THE COURTS WOULD
THUS NOT ONLY CREATE THE DIFFICULT TASK OF SEPARATING RELATED ISSUES,
BUT WOULD ALSO PRODUCE FREQUENT DUPLICATION OF EFFORT. 

IN ADDITION, THE OPPORTUNITIES FOR DELIBERATE DELAY AND THE
POSSIBILITY OF WELL-INTENTIONED BUT NO LESS SERIOUS DELAY CREATED BY
SEPARATION OF THE "PROCEDURAL" AND "SUBSTANTIVE" ELEMENTS OF A DISPUTE
ARE CLEAR.  WHILE THE COURTS HAVE THE TASK OF DETERMINING "SUBSTANTIVE
ARBITRABILITY," THERE WILL BE CASES IN WHICH ARBITRABILITY OF THE
SUBJECT MATTER IS UNQUESTIONED BUT A DISPUTE ARISES OVER THE PROCEDURES
TO BE FOLLOWED.  IN ALL OF SUCH CASES, ACCEPTANCE OF WILEY'S POSITION
WOULD PRODUCE THE DELAY ATTENDANT UPON JUDICIAL PROCEEDINGS PRELIMINARY
TO ARBITRATION.  AS THIS CASE, COMMENCED IN JANUARY 1962 AND NOT YET
COMMITTED TO ARBITRATION, WELL ILLUSTRATES, SUCH DELAY MAY ENTIRELY
ELIMINATE THE PROSPECT OF A SPEEDY ARBITRATED SETTLEMENT OF THE
DISPUTE, TO THE DISADVANTAGE OF THE PARTIES (WHO, IN ADDITION, WILL
HAVE TO BEAR INCREASED COSTS) AND CONTRARY TO THE AIMS OF NATIONAL
LABOR POLICY. 

NO JUSTIFICATION FOR SUCH A GENERALLY UNDESIRABLE RESULT IS TO BE
FOUND IN A PRESUMED INTENTION OF THE PARTIES.  REFUSAL TO ORDER
ARBITRATION OF SUBJECTS WHICH THE PARTIES HAVE NOT AGREED TO ARBITRATE
DOES NOT ENTAIL THE FRACTIONATING OF DISPUTES ABOUT SUBJECTS WHICH THE
PARTIES DO WISH TO HAVE SUBMITTED.  ALTHOUGH A PARTY MAY RESIST
ARBITRATION ONCE A GRIEVANCE HAS ARISEN, AS DOES WILEY HERE, WE THINK
IT BEST ACCORDS WITH THE USUAL PURPOSES OF AN ARBITRATION CLAUSE AND
WITH THE POLICY BEHIND FEDERAL LABOR LAW TO REGARD PROCEDURAL
DISAGREEMENTS NOT AS SEPARATE DISPUTES BUT AS ASPECTS OF THE DISPUTE
WHICH CALLED THE GRIEVANCE PROCEDURES INTO PLAY. 

WITH THE RESERVATION INDICATED AT THE OUTSET (P. 544 AND P. 546, NOTE
1, SUPRA), THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  WILEY ARGUES THAT THE COURT OF APPEALS DECIDED THAT THE EFFECT
OF THE MERGER ON THE OBLIGATION TO ARBITRATE WAS A QUESTION FOR THE
ARBITRATOR.  THE OPINION BELOW IS UNCLEAR.  IT FIRST STATES THAT "THE
QUESTION OF 'SUBSTANTIVE ARBITRABILITY' IS FOR THE COURT NOT FOR THE
ARBITRATOR TO DECIDE."  313 F.2D, AT 55.  AT ANOTHER POINT, IT SAYS:
"WE MERELY HOLD THAT, AS WE INTERPRET THE COLLECTIVE BARGAINING
AGREEMENT BEFORE US IN THE LIGHT OF SUPREME COURT DECISIONS ENUNCIATING
THE FEDERAL POLICY OF PROMOTING INDUSTRIAL PEACE AND STABILITY,
ESPECIALLY WITH REFERENCE TO ARBITRATION PROCEDURES SET UP IN
COLLECTIVE BARGAINING AGREEMENTS, WE CANNOT SAY THAT IT WAS INTENDED
THAT THIS CONSOLIDATION SHOULD PRECLUDE THIS UNION FROM PROCEEDING TO
ARBITRATION TO DETERMINE THE EFFECT OF THE CONSOLIDATION ON THE
CONTRACT AND ON THE RIGHTS OF THE EMPLOYEES ARISING UNDER THE
CONTRACT."  313 F.2D, AT 56-57. 

ELSEWHERE, HOWEVER, THE OPINION STATES:  "  ...  WE THINK AND HOLD
...  THAT IT IS NOT TOO MUCH TO EXPECT AND REQUIRE THAT THIS EMPLOYER
PROCEED TO ARBITRATION WITH THE REPRESENTATIVES OF THE UNION TO
DETERMINE WHETHER THE OBLIGATION TO ARBITRATE REGARDING THE SUBSTANTIVE
TERMS OF THE CONTRACT SURVIVED THE CONSOLIDATION ON OCTOBER 2, 1961,
AND, IF SO, JUST WHAT EMPLOYEE RIGHTS, IF ANY, SURVIVED THE
CONSOLIDATION."  313 F.2D, AT 57.  JUDGE KAUFMAN, CONCURRING
SEPARATELY, PLAINLY THOUGHT THAT THE COURT HAD LEFT TO THE ARBITRATOR
THE QUESTION OF WHETHER WILEY WAS OBLIGATED TO ARBITRATE AT ALL.  313
F.2D, AT 65, 66. 

FN2  "THE RIGHTS OF CREDITORS OF ANY CONSTITUENT CORPORATION SHALL
NOT IN ANY MANNER BE IMPAIRED, NOR SHALL ANY LIABILITY OR OBLIGATION
DUE OR TO BECOME DUE, OR ANY CLAIM OR DEMAND FOR ANY CAUSE EXISTING
AGAINST ANY SUCH CORPORATION OR AGAINST ANY STOCKHOLDER THEREOF BE
RELEASED OR IMPAIRED BY ANY SUCH CONSOLIDATION; BUT SUCH CONSOLIDATED
CORPORATION SHALL BE DEEMED TO HAVE ASSUMED AND SHALL BE LIABLE FOR ALL
LIABILITIES AND OBLIGATIONS OF EACH OF THE CORPORATIONS CONSOLIDATED IN
THE SAME MANNER AS IF SUCH CONSOLIDATED CORPORATION HAD ITSELF INCURRED
SUCH LIABILITIES OR OBLIGATIONS.  THE STOCKHOLDERS OF THE RESPECTIVE
CONSTITUENT CORPORATIONS SHALL CONTINUE SUBJECT TO ALL THE LIABILITIES,
CLAIMS AND DEMANDS EXISTING AGAINST THEM AS SUCH, AT OR BEFORE THE
CONSOLIDATION; AND NO ACTION OR PROCEEDING THEN PENDING BEFORE ANY
COURT OR TRIBUNAL IN WHICH ANY CONSTITUENT CORPORATION IS A PARTY, OR
IN WHICH ANY SUCH STOCKHOLDER IS A PARTY, SHALL ABATE OR BE
DISCONTINUED BY REASON OF SUCH CONSOLIDATION, BUT MAY BE PROSECUTED TO
FINAL JUDGMENT, AS THOUGH NO CONSOLIDATION HAD BEEN ENTERED INTO; OR
SUCH CONSOLIDATED CORPORATION MAY BE SUBSTITUTED AS A PARTY IN PLACE OF
ANY CONSTITUENT CORPORATION, BY ORDER OF THE COURT IN WHICH SUCH ACTION
OR PROCEEDING MAY BE PENDING." 

FN3  BUT CF. THE GENERAL RULE THAT IN THE CASE OF A MERGER THE
CORPORATION WHICH SURVIVES IS LIABLE FOR THE DEBTS AND CONTRACTS OF THE
ONE WHICH DISAPPEARS.  15 FLETCHER, PRIVATE CORPORATIONS (1961 REV.
ED.), SEC. 7121. 

FN4  COMPARE THE PRINCIPLE THAT WHEN A CONTRACT IS SCRUTINIZED FOR
EVIDENCE OF AN INTENTION TO ARBITRATE A PARTICULAR KIND OF DISPUTE,
NATIONAL LABOR POLICY REQUIRES, WITHIN REASON, THAT "AN INTERPRETATION
THAT COVERS THE ASSERTED DISPUTE," WARRIOR & GULF, SUPRA, PP. 582-583,
BE FAVORED. 

FN5  THE FACT THAT THE UNION DOES NOT REPRESENT A MAJORITY OF AN
APPROPRIATE BARGAINING UNIT IN WILEY DOES NOT PREVENT IT FROM
REPRESENTING THOSE EMPLOYEES WHO ARE COVERED BY THE AGREEMENT WHICH IS
IN DISPUTE AND OUT OF WHICH WILEY'S DUTY TO ARBITRATE ARISES.  RETAIL
CLERKS INT'L ASSN., LOCAL UNIONS NOS. 128 & 633, V. LION DRY GOODS,
INC., 369 U.S. 17.  THERE IS NO PROBLEM OF CONFLICT WITH ANOTHER UNION,
CF. L.B. SPEAR & CO., 106 N.L.R.B. 687, SINCE WILEY HAD NO CONTRACT
WITH ANY UNION COVERING THE UNIT OF EMPLOYEES WHICH RECEIVED THE FORMER
INTERSCIENCE EMPLOYEES.    PROBLEMS MIGHT BE CREATED BY AN ARBITRAL
AWARD WHICH REQUIRED WILEY TO GIVE SPECIAL TREATMENT TO THE FORMER
INTERSCIENCE EMPLOYEES BECAUSE OF RIGHTS FOUND TO HAVE ACCRUED TO THEM
UNDER THE INTERSCIENCE CONTRACT.  BUT THE MERE POSSIBILITY OF SUCH
PROBLEMS CANNOT CUT OFF THE UNION'S RIGHT TO PRESS THE EMPLOYEES'
CLAIMS IN ARBITRATION.  WHILE IT WOULD BE PREMATURE AT THIS STAGE TO
SPECULATE ON HOW TO AVOID SUCH HYPOTHETICAL PROBLEMS, WE HAVE LITTLE
DOUBT THAT WITHIN THE FLEXIBLE PROCEDURES OF ARBITRATION A SOLUTION CAN
BE REACHED WHICH WOULD AVOID DISTURBING LABOR RELATIONS IN THE WILEY
PLANT. 

FN6  SECTION 16.5 PROVIDES: 

"IT IS AGREED THAT, IN ADDITION TO OTHER PROVISIONS ELSEWHERE
CONTAINED IN THIS AGREEMENT WHICH EXPRESSLY DENY ARBITRATION TO
SPECIFIC EVENTS, SITUATIONS OR CONTRACT PROVISIONS, THE FOLLOWING
MATTERS SHALL NOT BE SUBJECT TO THE ARBITRATION PROVISIONS OF THIS
AGREEMENT: 

"(1)  THE AMENDMENT OR MODIFICATION OF THE TERMS AND PROVISIONS OF
THIS AGREEMENT: 

"(2)  SALARY OR MINIMUM WAGE RATES AS SET FORTH HEREIN: 

"(3)  MATTERS NOT COVERED BY THIS AGREEMENT; AND: 

"(4)  ANY DISPUTE ARISING OUT OF ANY QUESTION PERTAINING TO THE
RENEWAL OR EXTENSION OF THIS AGREEMENT." 

OTHER PROVISIONS OF THE AGREEMENT "WHICH EXPRESSLY DENY ARBITRATION
TO SPECIFIC EVENTS" ARE SEC. 4.2, 4.4, 6.4.1, 14.4, 16.9. 

FN7  SEE ART. VI:  SENIORITY; ART. XV:  WELFARE SECURITY BENEFITS;
ART. VII:  DISCHARGES AND LAY-OFFS; ART. XXIII:  SEVERANCE PAY; ART.
XII:  VACATIONS. 

FN8 WILEY APPARENTLY CONCEDES THE POSSIBILITY THAT A RIGHT TO
SEVERANCE PAY MIGHT ACCRUE BEFORE THE EXPIRATION OF THE CONTRACT BUT BE
PAYABLE "AT SOME FUTURE DATE."  BRIEF, P. 38. 

FN9  WILEY APPARENTLY SO CONSTRUES AT LEAST PART OF ONE OF THE
UNION'S CLAIMS.  SEE NOTE 8, SUPRA.

FN10  ALL OF THESE PROVISIONS ARE CONTAINED IN SEC. 16.0 OF THE
INTERSCIENCE AGREEMENT. 

FN11  IN ADDITION TO THE FAILURE TO FOLLOW THE PROCEDURES OF STEPS 1
AND 2, WILEY OBJECTS TO THE UNION'S ASSERTED FAILURE TO COMPLY WITH
SEC. 16.6, WHICH PROVIDES:  "NOTICE OF ANY GRIEVANCE MUST BE FILED WITH
THE EMPLOYER AND WITH THE UNION SHOP STEWARD WITHIN FOUR (4) WEEKS
AFTER ITS OCCURRENCE OR LATEST EXISTENCE.  THE FAILURE BY EITHER PARTY
TO FILE THE GRIEVANCE WITHIN THIS TIME LIMITATION SHALL BE CONSTRUED
AND BE DEEMED TO BE AN ABANDONMENT OF THE GRIEVANCE." 

FN12  THE COURTS OF APPEALS HAVE DISAGREED ON THIS ISSUE.  THE FIRST
AND SEVENTH CIRCUITS HAVE HELD THAT THE COURTS DETERMINE WHETHER
PROCEDURAL CONDITIONS TO ARBITRATION HAVE BEEN MET.  BOSTON MUTUAL LIFE
INS. CO. V. INSURANCE AGENTS' INT'L UNION, 258 F.2D 516; BRASS & COPPER
WORKERS FEDERAL LABOR UNION NO. 19322 V. AMERICAN BRASS CO., 272 F.2D
849.  THE THIRD, FIFTH, AND SIXTH CIRCUITS AGREE WITH THE SECOND
CIRCUIT'S DECISION IN THIS CASE THAT THE QUESTION OF "PROCEDURAL
ARBITRABILITY" IS FOR THE ARBITRATOR.  RADIO CORPORATION OF AMERICA V.
ASSOCIATION OF PROFESSIONAL ENGINEERING PERSONNEL, 291 F.2D 105; DEATON
TRUCK LINE, INC., V. LOCAL UNION 612, 314 F.2D 418; LOCAL 748 V.
JEFFERSON CITY CABINET CO., 314 F.2D 192. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















MRVICA V. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE 376 U.S. 560 


NO. 353.  ARGUED MARCH 5, 1964.  - DECIDED MARCH 30, 1964.  - 317 F.2D
220, AFFIRMED. 


AN ALIEN SEAMAN, WHO FIRST ENTERED THIS COUNTRY IN JANUARY 1940, AND
WHO LEFT AS A SEAMAN ON A FOREIGN SHIP IN OCTOBER 1942 AFTER A WARRANT
FOR HIS DEPORTATION WAS ISSUED, WHO THEN RETURNED AND HAS REMAINED HERE
SINCE DECEMBER 1942, HAS NOT HAD CONTINUOUS RESIDENCE IN THE UNITED
STATES SINCE HIS ORIGINAL ENTRY, WITHIN THE MEANING OF SEC. 249 OF THE
IMMIGRATION AND NATIONALITY ACT.  HE THEREFORE CANNOT QUALIFY UNDER
THAT PROVISION FOR A RECORD OF LAWFUL ADMISSION INTO THE UNITED STATES
FOR PERMANENT RESIDENCE.  PP. 560-568.  IN FACT." 

MRVICA V. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES CONSTRUCTION OF THE PROVISIONS OF SEC. 249 OF THE
IMMIGRATION AND NATIONALITY ACT, 66 STAT. 163, 219, 8 U.S.C. SEC. 1259,
WHICH IN CERTAIN CIRCUMSTANCES PERMITS AN ALIEN ILLEGALLY IN THIS
COUNTRY TO APPLY FOR A RECORD OF LAWFUL ADMISSION INTO THE UNITED
STATES FOR PERMANENT RESIDENCE. 

THE PETITIONER IS A NATIVE AND CITIZEN OF YUGOSLAVIA, WHO ENTERED
THIS COUNTRY UNDER A TEMPORARY LANDING PERMIT IN JANUARY 1940, (FN1) AS
A NONIMMIGRANT CREWMAN ATTACHED TO A MERCHANT SHIP.  HE REMAINED BEYOND
THE PERIOD ALLOWED BY THE PERMIT WITHOUT PERMISSION UNTIL SEPTEMBER 4,
1942, WHEN A WARRANT FOR HIS DEPORTATION WAS ISSUED.  SOON THEREAFTER,
HE SIGNED AS A MEMBER OF THE CREW OF A YUGOSLAV SHIP ABOUT TO DEPART
FROM THE UNITED STATES.  THE SHIP SAILED WITH THE PETITIONER ON BOARD
ON OCTOBER 6, 1942, AND, AFTER CALLING AT SEVERAL PORTS IN CHILE,
RETURNED TO THE UNITED STATES ON DECEMBER 19, 1942.  THE PETITIONER WAS
DETAINED ON BOARD SHIP FOR SEVERAL DAYS, BUT WAS THEN ALLOWED TO GO
ASHORE FOR MEDICAL TREATMENT.  (FN2)  HE HAS NOT LEFT THE COUNTRY
SINCE. 

IN 1951, NEW DEPORTATION PROCEEDINGS WERE INSTITUTED AGAINST THE
PETITIONER, WHOSE PRESENCE IN THIS COUNTRY APPARENTLY HAD MEANWHILE
GONE UNNOTICED BY THE IMMIGRATION AUTHORITIES.  HE WAS AGAIN FOUND
SUBJECT TO DEPORTATION BUT WAS GRANTED THE PRIVILEGE OF VOLUNTARY
DEPARTURE.  THIS DECISION OF THE HEARING OFFICER WAS AFFIRMED BY THE
ASSISTANT COMMISSIONER, WHOSE ORDER BECAME FINAL ON MARCH 22, 1954,
WHEN THE BOARD OF IMMIGRATION APPEALS ENTERED AN ORDER DISMISSING THE
PETITIONER'S APPEAL.   OTHER PROCEEDINGS FOLLOWED, WHICH ULTIMATELY
RESULTED IN 1959 IN AN ORDER THAT THE PETITIONER BE DEPORTED TO
YUGOSLAVIA.  THE PETITIONER'S APPLICATION FOR THE STATUS OF A PERMANENT
RESIDENT UNDER SEC. 249 OF THE IMMIGRATION AND NATIONALITY ACT WAS
DENIED ON THE GROUND, EXPLAINED MORE FULLY BELOW, THAT HIS DEPARTURE IN
1942 MADE HIM INELIGIBLE FOR SUCH DISCRETIONARY RELIEF BECAUSE IT
DEPRIVED HIM OF THE PREREQUISITE CONTINUOUS RESIDENCE IN THE UNITED
STATES SINCE 1940.  IN 1960 THE PETITIONER BROUGHT THIS ACTION IN THE
UNITED STATES DISTRICT COURT FOR REVIEW OF THE ADMINISTRATIVE RULING
AND A DECLARATORY JUDGMENT THAT HE WAS ELIGIBLE FOR RELIEF UNDER SEC.
249.  THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR THE RESPONDENT,
202 F. SUPP. 214, WHICH THE COURT OF APPEALS AFFIRMED, 317 F.2D 220. 
WE GRANTED CERTIORARI, 375 U.S. 894, AND NOW AFFIRM THE RULINGS BELOW. 


"A RECORD OF LAWFUL ADMISSION FOR PERMANENT RESIDENCE MAY, IN THE
DISCRETION OF THE ATTORNEY GENERAL AND UNDER SUCH REGULATIONS AS HE MAY
PRESCRIBE, BE MADE IN THE CASE OF ANY ALIEN, AS OF THE DATE OF THE
APPROVAL OF HIS APPLICATION OR, IF ENTRY OCCURRED PRIOR TO JULY 1,
1924, AS OF THE DATE OF SUCH ENTRY, IF NO SUCH RECORD IS OTHERWISE
AVAILABLE AND SUCH ALIEN SHALL SATISFY THE ATTORNEY GENERAL THAT HE IS
NOT INADMISSIBLE UNDER SECTION 212(A) INSOFAR AS IT RELATES TO
CRIMINALS, PROCURERS AND OTHER IMMORAL PERSONS, SUBVERSIVES, VIOLATORS
OF THE NARCOTIC LAWS OR SMUGGLERS OF ALIENS, AND HE ESTABLISHES THAT
HE: 

"(A) ENTERED THE UNITED STATES PRIOR TO JUNE 28, 1940: 

"(A)  ENTERED THE UNITED STATES PRIOR TO JUNE 28, 1940. 

"(B)  HAS HAD HIS RESIDENCE IN THE UNITED STATES CONTINUOUSLY SINCE
SUCH ENTRY: 

"(C)  IS A PERSON OF GOOD MORAL CHARACTER; AND: 

"(D)  IS NOT INELIGIBLE TO CITIZENSHIP."  72 STAT. 546, AMENDING 66
STAT. 219, 8 U.S.C.  SECS. 1259.  (FN3) 

IT IS AGREED BY BOTH SIDES THAT THE PETITIONER SATISFIES ALL THE
SPECIFIED CRITERIA EXCEPT THE REQUIREMENT OF CONTINUOUS RESIDENCE SINCE
AN ENTRY PRIOR TO JUNE 28, 1940.  THE QUESTION FOR DECISION IS WHETHER
HIS DEPARTURE FROM THE UNITED STATES IN 1942 AND HIS ABSENCE FROM THIS
COUNTRY FOR SEVERAL MONTHS THEREAFTER DEFEAT HIS CLAIM TO A CONTINUOUS
RESIDENCE HERE SINCE 1940. 

THE PETITIONER, WHOSE CASE HAS BEEN EARNESTLY AND ABLY PRESSED BEFORE
US, CONCEDES THAT HE WAS ORDERED DEPORTED IN 1942 AND THAT HIS
DEPARTURE "EXECUTED" THE ORDER OF DEPORTATION.  THERE CAN BE NO DOUBT
THAT THIS LATTER POINT IS CORRECT.  LEGISLATION THEN APPLICABLE
PROVIDED THAT "  ...  ANY ALIEN ORDERED DEPORTED  ...  WHO HAS LEFT THE
UNITED STATES SHALL BE CONSIDERED TO HAVE BEEN DEPORTED IN PURSUANCE OF
LAW, IRRESPECTIVE OF THE SOURCE FROM WHICH THE EXPENSES OF HIS
TRANSPORTATION WERE DEFRAYED OR OF THE PLACE TO WHICH HE DEPARTED." 
ACT OF MARCH 4, 1929, SEC. 1(B), 45 STAT. 1551, 8 U.S.C. (1940 ED.) 
SEC.  180(B).  (FN4) 

ANY POSSIBLE DOUBT OF THE IMPORT OF THIS PROVISION IS REMOVED BY H.R.
REP. NO. 2418, 70TH CONG., 2D SESS., 6, WHICH EXPLAINED THE PROVISION
AS FOLLOWS: 

"OWING TO THE INADEQUACY OF THE APPROPRIATIONS NOW MADE FOR
ENFORCEMENT OF DEPORTATION PROVISIONS UNDER EXISTING LAW, THE
DEPARTMENT OF LABOR HAS, IN MANY CASES, AFTER A WARRANT OF DEPORTATION
HAS BEEN ISSUED, REFRAINED FROM EXECUTING THE WARRANT AND DEPORTING THE
ALIEN, AT THE EXPENSE OF THE APPROPRIATION, TO THE COUNTRY TO WHICH HE
MIGHT BE DEPORTED, UPON THE CONDITION THAT THE ALIEN VOLUNTARILY, AT
HIS OWN EXPENSE, LEAVE THE UNITED STATES.  SOME DOUBT EXISTS WHETHER AN
ALIEN SO DEPARTING HAS BEEN 'DEPORTED.'  SUBSECTION (B) OF SECTION 3 OF
THE BILL (THE PROVISION QUOTED ABOVE) THEREFORE REMOVES ANY POSSIBLE
DOUBT ON THIS QUESTION BY PROVIDING THAT IN SUCH CASES THE ALIEN SHALL
BE CONSIDERED TO HAVE BEEN DEPORTED IN PURSUANCE OF LAW." 

THE PETITIONER'S DEPARTURE WAS THUS PROPERLY TREATED AS A DEPORTATION
BY THE IMMIGRATION AND NATURALIZATION SERVICE, OFFICIALS OF WHICH
MARKED THE WARRANT FOR DEPORTATION AS "EXECUTED" AND PREPARED PAPERS,
INCLUDING A "DESCRIPTION OF PERSON DEPORTED," RECORDING HIS DEPORTATION
AND THE MANNER IN WHICH IT WAS ACCOMPLISHED.  THE LATTER DOCUMENT ALSO
NOTED THAT THE PETITIONER HAD A YUGOSLAVIAN PASSPORT.  (FN5) 

THE PETITIONER CHALLENGES NONE OF THE ABOVE.  HE PITCHES HIS ARGUMENT
ON THE STATUTORY DEFINITION OF "RESIDENCE" AS "THE PLACE OF GENERAL
ABODE; THE PLACE OF GENERAL ABODE OF A PERSON MEANS HIS PRINCIPAL,
ACTUAL DWELLING PLACE IN FACT, WITHOUT REGARD TO INTENT."  IMMIGRATION
AND NATIONALITY ACT, SEC. 101(A)(33), 66 STAT. 170, 8 U.S.C. SEC.
1101(A)(33).  THE PETITIONER ARGUES THAT THE STATUTE MAKES "RESIDENCE"
A QUESTION OF OBSERVABLE FACT, AND THAT, ON THIS BASIS, HIS RESIDENCE
THROUGHOUT THE 1942 VOYAGE MUST BE TAKEN AS HAVING REMAINED IN THE
UNITED STATES.  HE POINTS TO VARIOUS CIRCUMSTANCES SURROUNDING HIS
DEPARTURE WHICH, HE ARGUES, ESTABLISH THAT HIS "RESIDENCE," AS DEFINED
ABOVE, WAS NOT INTERRUPTED IN 1942, ALTHOUGH HE WAS PHYSICALLY ABSENT
FROM THE UNITED STATES FOR THE PERIOD OF THE VOYAGE. 

THE FACTS ON WHICH THE PETITIONER RELIES ARE OF TWO KINDS.  HE POINTS
FIRST TO SUCH TYPICAL INDICIA OF RESIDENCE AS THE MAINTENANCE OF A BANK
ACCOUNT IN THIS COUNTRY AND CONTINUED MEMBERSHIP IN A DOMESTIC UNION. 
MORE WEIGHT, HOWEVER, IS PLACED ON THE INCLUSION IN THE WARRANT FOR THE
PETITIONER'S DEPORTATION IN 1942 OF A "NINTH PROVISO CLAUSE," WHICH
PROVIDED: 

"IF THE ALIEN RETURNS TO THE UNITED STATES FROM TIME TO TIME AND UPON
INSPECTION IS FOUND TO BE A BONA FIDE SEAMAN AND ENTITLED TO SHORE
LEAVE, EXCEPT FOR PRIOR DEPORTATION, ADMISSION UNDER THE 9TH PROVISO OF
OF INADMISSIBILITY IS HEREBY AUTHORIZED FOR SUCH TIME AS THE ALIEN MAY
BE ADMITTED AS A SEAMAN." 

THIS CLAUSE, INCLUDED IN THE WARRANT PURSUANT TO STATUTORY AUTHORITY,
(FN6) RELIEVED THE PETITIONER OF THE COMBINED EFFECT OF PROVISIONS
MAKING ARREST AND DEPORTATION A BASIS FOR EXCLUSION (FN7) AND DEPRIVING
AN ALIEN SEAMAN SUBJECT TO EXCLUSION OF LANDING PRIVILEGES.  (FN8)  THE
PETITIONER SUGGESTS THAT DUE TO WARTIME CONDITIONS DEPORTATION TO
YUGOSLAVIA WAS IMPOSSIBLE IN 1942 AND THAT THE ORDER OF DEPORTATION WAS
THEREFORE IN REALITY BUT A FORMALITY OR FICTION, EVERYONE INVOLVED
UNDERSTANDING, AS THE "NINTH PROVISO CLAUSE" IS SAID TO ATTEST, THAT HE
WOULD BE READMITTED WHEN HIS SHIP RETURNED. 

THIS ARGUMENT CONTRADICTS WHAT IS PLAINLY SHOWN BY THE RECORD.  THERE
IS NOTHING IN THE ORDER OF DEPORTATION, IN THE ENDORSEMENT OF ITS
"EXECUTION," OR IN ANY OF THE SUBSEQUENT PROCEEDINGS TO INDICATE THAT
THE DEPORTATION ORDER WAS NOT WHAT IT PURPORTED TO BE.  NO REASON IS
SUGGESTED WHY THE IMMIGRATION AUTHORITIES SHOULD HAVE GOVE THROUGH A
MEANINGLESS RITUAL OF DEPORTATION FOR THE PURPOSE OF NOT DEPORTING THE
PETITIONER.  THE AMELIORATIVE CLAUSE ON WHICH THE PETITIONER RELIES
INDICATES, IF ANYTHING, THAT THE PETITIONER WAS NOT INTENDED TO BE
READMITTED AS A RESIDENT; HIS ADMISSION WAS CONDITIONED ON A FINDING
THAT HE WAS "A BONA FIDE SEAMAN AND ENTITLED TO SHORE LEAVE" AND WAS
AUTHORIZED ONLY "FOR SUCH TIME AS THE ALIEN MAY BE ADMITTED AS A
SEAMAN." 

ONCE THESE ARGUMENTS ARE LAID TO REST, THE PROPER DISPOSITION OF THIS
CASE IS CLEAR AND UNAVOIDABLE.  BY EXPRESS LEGISLATIVE DIRECTIVE, THE
PETITIONER'S DEPARTURE IN 1942 IS FOR PRESENT PURPOSES TO BE REGARDED
AS A DEPORTATION.  WE THINK IT BEYOND DISPUTE THAT ONE WHO HAS BEEN
DEPORTED DOES NOT CONTINUE TO HAVE HIS RESIDENCE HERE, WHATEVER MAY BE
THE SIGNIFICANCE OF OTHER FACTORS IN THE ABSENCE OF A VALID
DEPORTATION.  IN AN EARLY CASE, THIS COURT STATED: 

"THE ORDER OF DEPORTATION  ...  IS BUT A METHOD OF ENFORCING THE
RETURN TO HIS OWN COUNTRY OF AN ALIEN WHO HAS NOT COMPLIED WITH THE
CONDITIONS UPON THE PERFORMANCE OF WHICH THE GOVERNMENT OF THE NATION,
ACTING WITHIN ITS CONSTITUTIONAL AUTHORITY AND THROUGH THE PROPER
DEPARTMENTS, HAS DETERMINED THAT HIS CONTINUING TO RESIDE HERE SHALL
DEPEND."  FONG YUE TING V. UNITED STATES, 149 U.S. 698, 730. 

IT WOULD BE QUITE IMPOSSIBLE TO CONSIDER THAT A DEPORTED ALIEN, WHOSE
RE-ENTRY INTO THIS COUNTRY WITHIN A YEAR OF DEPORTATION WOULD BE A
FELONY, (FN9) NEVERTHELESS CONTINUES TO RESIDE IN THIS COUNTRY. 

THE OBVIOUS PURPOSE OF DEPORTATION IS TO TERMINATE RESIDENCE.  IT
WOULD DEFY COMMON UNDERSTANDING AND DISREGARD CLEAR LEGISLATIVE INTENT
WERE WE TO HOLD THAT THAT PURPOSE HAD NOT BEEN ACHIEVED IN THIS
INSTANCE. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE EXACT DATE OF THE PETITIONER'S ENTRY IS UNCERTAIN.  BOTH
PARTIES STATE IN THEIR BRIEFS THAT HE ENTERED ON JANUARY 21, 1940,
WHICH IS THE DATE GIVEN BY THE PETITIONER AT A DEPORTATION HEARING IN
1952.  IN THE WARRANT FOR THE PETITIONER'S DEPORTATION WHICH ISSUED IN
1942, THE DATE OF ENTRY IS GIVEN AS JANUARY 25, 1940, WHICH IS THE DATE
OF ENTRY ESTABLISHED AT A DEPORTATION HEARING IN 1942. 

FN2  IN HIS BRIEF, THE PETITIONER STATES THAT HE CAME ASHORE "BY
REASON OF THE PERMISSION GRANTED HIM PRIOR TO SAILING," BRIEF P. 4,
PRESUMABLY A REFERENCE TO THE "NINTH PROVISO CLAUSE" CONTAINED IN THE
1942 ORDER OF DEPORTATION, WHICH IS DISCUSSED HEREAFTER.  IN THE
HEARING WHICH PRECEDED THE LATER DEPORTATION ORDER OF 1952, THE
PETITIONER TESTIFIED THAT HE CAME ASHORE PURSUANT TO SPECIAL PERMISSION
GRANTED HIM BECAUSE HE WAS ILL, WHICH WAS THE FINDING OF THE HEARING
OFFICER.  WHICH OF THESE GROUNDS WAS THE ACTUAL BASIS FOR ADMISSION IS,
FOR REASONS APPEARING LATER, IMMATERIAL TO THE DISPOSITION OF THIS
CASE. 

FN3  THE 1958 AMENDMENT OF SEC. 249, INTER ALIA, REMOVED THE
REQUIREMENT THAT AN ALIEN APPLYING FOR RELIEF UNDER THAT SECTION NOT BE
"SUBJECT TO DEPORTATION."  COMPARE 66 STAT. 219 WITH 72 STAT. 546.  THE
PETITIONER ARGUES THAT THIS CHANGE INDICATES A LEGISLATIVE JUDGMENT
FAVORABLE TO HIS SITUATION.  BUT THE HUMANITARIAN MOTIVES WHICH MAY
HAVE PROMPTED THE 1958 AMENDMENT DO NOT REACH THE PRESENT CASE, WHICH
IS CONCERNED WITH THE REQUIREMENT OF CONTINUOUS RESIDENCE, LEFT
UNTOUCHED BY THE AMENDMENT. 

FN4  THIS ENACTMENT WAS FOR PURPOSES OF EXCLUDING A DEPORTED ALIEN
FROM SUBSEQUENT ADMISSION AND MAKING IT A FELONY FOR SUCH ALIEN TO
ENTER OR ATTEMPT TO ENTER THE UNITED STATES.  ACT OF MARCH 4, 1929,
SEC. 1(A), 45 STAT. 1551, 8 U.S.C. (1940 ED.)  SEC.  180(A).  IT HAS
BEEN CARRIED FORWARD IN THE CURRENT PROVISIONS AND MADE APPLICABLE TO
THE IMMIGRATION AND NATIONALITY ACT GENERALLY.  SEC. 101(G), 66 STAT.
173, 8 U.S.C. SEC. 1101(G). 

FN5  THERE IS NO FOUNDATION FOR THE SUGGESTION THAT IN 1942 THERE WAS
A SPECIAL KIND OF DEPARTURE CALLED "RESHIPMENT" WHICH DID NOT HAVE THE
EFFECT OF EXECUTING THE OUTSTANDING DEPORTATION ORDER.  THE
PETITIONER'S "RESHIPMENT" WAS NOTHING MORE OR LESS THAN HIS SIGNING ON
BOARD SHIP AND DEPARTING ON IT.  THE NOTATION "RESHIPPED" ON THE
DEPORTATION WARRANT WAS SCRAWLED IN PENCIL ON THE BACK OF THE WARRANT. 
IT WAS MADE BY AN UNIDENTIFIED PERSON FOR AN UNKNOWN PURPOSE, AND
APPEARS UNDERNEATH THE ENDORSEMENT OF THE WARRANT'S EXECUTION BY THE
IMMIGRATION INSPECTOR.  (MORE RELEVANT IN THIS CONNECTION IS THE FACT
THAT THE NAME OF THE SHIP ON WHICH THE PETITIONER DEPARTED AND THE DATE
OF HIS DEPARTURE APPEAR IN THE BLANK FOR THE "STEAMER AND DATE ON WHICH
DEPORTED" ON THE OFFICIAL "DESCRIPTION OF PERSON DEPORTED.")    THE
PETITIONER HAD RECENTLY BEEN THROUGH A DEPORTATION HEARING.  JUST ONE
MONTH BEFORE HIS DEPARTURE HE HAD BEEN ORDERED DEPORTED.  IN THOSE
CIRCUMSTANCES, IT CAN SCARCELY BE MAINTAINED THAT HE DID NOT UNDERSTAND
HIS DEPARTURE TO BE PURSUANT TO THE WARRANT FOR HIS DEPORTATION.  (ANY
DOUBTS ON THIS SCORE MUST ASSUREDLY HAVE BEEN CLEARED UP BY HIS
DETENTION ON BOARD SHIP ON HIS RETURN.) 

INDEED, DISCUSSION OF THE MANNER OF THE PETITIONER'S DEPARTURE SEEMS
BESIDE THE POINT IN VIEW OF HIS CONCESSION THAT HIS DEPARTURE EXECUTED
THE WARRANT FOR HIS DEPORTATION.  (IF BY HIS DEPARTURE HE MANAGED TO
EXECUTE THE WARRANT FOR HIS DEPORTATION BUT NEVERTHELESS REMAIN
UNDEPORTED, HE WAS ABLE TO IMPROVE HIS STATUS BY LEAVING THE COUNTRY. 
THE SUGGESTION IS UNTENABLE.)    FN6  "  ...  THE COMMISSIONER GENERAL
OF IMMIGRATION WITH THE APPROVAL OF THE SECRETARY OF LABOR SHALL ISSUE
RULES AND PRESCRIBE CONDITIONS, INCLUDING EXACTION OF SUCH BONDS AS MAY
BE NECESSARY, TO CONTROL AND REGULATE THE ADMISSION AND RETURN OF
OTHERWISE INADMISSIBLE ALIENS APPLYING FOR TEMPORARY ADMISSION."  ACT
OF FEBRUARY 5, 1917, SEC. 3, 39 STAT. 875, 878, 8 U.S.C. (1940 ED.) 
SEC.  136(Q).  SIMILAR PROVISIONS ARE INCLUDED IN THE CURRENT STATUTE. 
IMMIGRATION AND NATIONALITY ACT, SEC. 212(D)(3), 66 STAT. 187, 8 U.S.C.
SEC. 1182(D)(3). 

FN7  ACT OF MARCH 4, 1929, SEC. 1(A), 45 STAT. 1551, 8 U.S.C. (1940
ED.)  SEC.  180(A), CARRIED FORWARD IN THE IMMIGRATION AND NATIONALITY
ACT, SECS. 212(A)(17), 276, 66 STAT.  183, 229, 8 U.S.C. SECS.
1182(A)(17), 1326. 

FN8  ACT OF MARCH 4, 1929, SEC. 1(C), 45 STAT. 1551, 8 U.S.C. (1940
ED.)  SEC.  180(C).  COMPARE THE RELATED PROVISIONS OF THE IMMIGRATION
AND NATIONALITY ACT, SEC. 252(A), 66 STAT. 220, 8 U.S.C. SEC. 1282(A). 

FN9  IMMIGRATION AND NATIONALITY ACT, SEC. 276, 66 STAT. 229, 8
U.S.C. SEC. 1326. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

CONGRESS HUMANELY DESIGNED SEC. 249 OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, AS AMENDED BY THE ACT OF AUGUST 8, 1958, 72
STAT. 546, 8 U.S.C. SEC. 1259, TO PERMIT THE ATTORNEY GENERAL, IF
SPECIFIED CONDITIONS ARE SATISFIED, TO REGULARIZE THE STATUS OF CERTAIN
CATEGORIES OF ALIENS ILLEGALLY IN THE COUNTRY.  AMONG THE PREREQUISITES
FOR OBTAINING PERMANENT RESIDENT STATUS - "REGISTRY" AS IT IS COMMONLY
TERMED - ARE (1) ENTRY PRIOR TO JUNE 28, 1940, (2) CONTINUOUS RESIDENCE
IN THE UNITED STATES THEREAFTER, AND (3) GOOD MORAL CHARACTER. 

THE COURT ACKNOWLEDGES THAT PETITIONER HAS SATISFIED THE ENTRY AND
CHARACTER CONDITIONS OF THE STATUTE.  IT HOLDS, HOWEVER, THAT THE
CONTINUOUS RESIDENCE REQUIREMENT HAS NOT BEEN SATISFIED BECAUSE
PETITIONER MUST BE CONSIDERED, AS A MATTER OF LAW, TO HAVE BEEN
DEPORTED IN OCTOBER 1942 WHEN HE SAILED AS A CREWMAN ABOARD THE
YUGOSLAVIAN VESSEL S.S. DUBRAVKA ON A ROUND TRIP VOYAGE OF TWO AND A
HALF MONTHS' DURATION BETWEEN CALIFORNIA AND CHILE. 

THE DIFFICULTY WITH THE COURT'S CONCLUSION IS THAT IT RESTS, AS I
SHALL SHOW, ENTIRELY ON A LEGAL FICTION.  I AM UNWILLING TO ATTRIBUTE
TO CONGRESS, IN ENACTING THIS REMEDIAL PROVISION DESIGNED TO REGULARIZE
THE STATUS OF LONG-RESIDENT ALIENS ILLEGALLY IN THE COUNTRY, AN INTENT
TO DEPORT THEM ON THE BASIS OF LEGAL FICTIONS REFUTED BY FACTS. 

THE WARRANT OF SEPTEMBER 4, 1942, ON WHICH THE COURT RELIES, DIRECTED
PETITIONER'S DEPORTATION TO YUGOSLAVIA.  THE GOVERNMENT CONCEDES, AS
INDEED IT MUST, THE "PRACTICAL IMPOSSIBILITY" OF DEPORTING PETITIONER
TO YUGOSLAVIA IN 1942 IN THE MIDST OF THE WAR.  YUGOSLAVIA WAS THEN
OVERRUN AND OCCUPIED BY ENEMY FORCES.  PETITIONER COULD NOT HAVE BEEN,
AND WAS NOT IN FACT, DEPORTED TO YUGOSLAVIA.  THE GOVERNMENT SUGGESTS
THAT IT COULD HAVE DEPORTED PETITIONER TO GREAT BRITAIN WHICH WAS THEN
THE SEAT OF THE YUGOSLAV GOVERNMENT IN EXILE.  IN FACT, HOWEVER, WHILE
OTHER YUGOSLAV SEAMEN STRANDED IN THE UNITED STATES WERE DEPORTED TO
GREAT BRITAIN DURING THE WAR, PETITIONER WAS NOT.  THE GOVERNMENT DOES
NOT CLAIM THAT IT ACTUALLY EXECUTED THE WARRANT IN THIS WAY.  THE
WARRANT ITSELF SHOWS THAT PETITIONER WAS NOT DEPORTED TO YUGOSLAVIA,
GREAT BRITAIN OR ANY OTHER FOREIGN COUNTRY.  IN RETURNING THE WARRANT
AS "EXECUTED," AN IMMIGRATION OFFICIAL SCRIBBLED ON ITS FACE
"RESHIPPED."  (FN1)  HE ALSO CAUSED TO BE TYPED AFTER THE PRINTED WORD
"EXECUTED" ON THE WARRANT, "OCTOBER 6TH, 1942 JOGO SLAV MS DUBRAVKA." 
THE RECORD ALSO CONTAINS THE FOLLOWING TELEGRAM FROM AGENTS OF THE
SERVICE TO THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION: 

"ELLIS ISLAND, N.Y.H., OCTOBER 21, 1942 - 99563/665. 

"IMMIGRATION & NATURALIZATION SERVICE: 

"PHILADELPHIA, PA. 

"ATWAR IVAN MRVICA  ...  RESHIPPED. 

          "W.J. ZUCKER. 

        "ACTING DISTRICT DIRECTOR. 

          "NEW YORK DISTRICT. 

      "BY:

          "J.A. CHRISTOPHERSON. 

          "INSPECTOR IN CHARGE. 

          "LAW DIVISION." 

THIS TELEGRAM WAS CONFIRMED AS FOLLOWS: 

"THE ALIEN RESHIPPED FOREIGN OCTOBER 6, 1942, EX MS DUBRAVKA, FROM
SAN PEDRO, CALIFORNIA.  ORIGINAL WARRANT OF DEPORTATION, APPROPRIATELY
EXECUTED, IS ATTACHED." 

IN LIGHT OF THIS RECORD OF WHAT ACTUALLY OCCURRED, THERE IS NO
SUPPORT FOR THE COURT'S CONCLUSION THAT:  "THERE IS NOTHING IN THE
ORDER OF DEPORTATION, IN THE ENDORSEMENT OF ITS 'EXECUTION,' OR IN ANY
OF THE SUBSEQUENT PROCEEDINGS TO INDICATE THAT THE DEPORTATION ORDER
WAS NOT WHAT IT PURPORTED TO BE."  ANTE, AT 567.  ON THE CONTRARY, THE
RECORD CLEARLY SHOWS THAT PETITIONER WAS NOT ACTUALLY DEPORTED TO
YUGOSLAVIA IN ACCORDANCE WITH THE TERMS OF THE WARRANT.  EQUALLY
UNTENABLE IS THE GOVERNMENT'S ARGUMENT THAT BY TAKING THE SINGLE BRIEF
ROUND-TRIP VOYAGE TO SOUTH AMERICA PETITIONER TERMINATED HIS CONTINUOUS
RESIDENCE IN THE UNITED STATES:  "BECAUSE THE VESSEL HE BOARDED FLEW
THE YUGOSLAV FLAG  ...  IT MAY BE SAID THAT PETITIONER AT ONCE RESUMED
HIS FORMER YUGOSLAV RESIDENCE ...  .  HIS ACTUAL DWELLING PLACE IN FACT
WAS HIS SHIP." 

THE DEFINITION OF RESIDENCE IN THE IMMIGRATION AND NATIONALITY ACT
REFUTES THE VIEW THAT BY HIS "PHYSICAL PRESENCE" ON THE SHIP PETITIONER
ABANDONED HIS AMERICAN RESIDENCE.  (FN2)  THE STATUTE, SEC. 101(A)(33)
OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, STATES THAT THE "TERM
'RESIDENCE' MEANS THE PLACE OF GENERAL ABODE; THE PLACE OF GENERAL
ABODE OF A PERSON MEANS HIS PRINCIPAL, ACTUAL DWELLING PLACE IN FACT
...  ."  THERE CAN BE NO DOUBT THAT IN FACT PETITIONER'S DWELLING PLACE
WAS NOT THE SHIP; HIS "PLACE OF GENERAL ABODE" WAS ON SHORE IN THE
UNITED STATES WHERE IT HAS BEEN CONTINUOUSLY SINCE JANUARY 1940.  EVER
SINCE HE ENTERED AND OVERSTAYED HIS LEAVE IN JANUARY 1940, PETITIONER
HAS SOUGHT BY ALL AVAILABLE MEANS TO REMAIN IN THE UNITED STATES.  HIS
SINGLE AIM FROM WHICH HE HAS NEVER DEVIATED HAS BEEN TO REGULARIZE HIS
STATUS IN THE COUNTRY.  (FN3)  THE COURT'S VIEW THAT PETITIONER BY
SHIPPING TO SOUTH AMERICA DEPARTED THE UNITED STATES IS A LEGAL
CONCLUSION - UNDER THE CIRCUMSTANCES HERE, A MERE LEGAL FICTION.  IT
MUST BE REMEMBERED THAT THE VOYAGE WHICH IS SAID TO HAVE TERMINATED
PETITIONER'S RESIDENCE WAS A WARTIME VOYAGE ON A PRIVATELY OWNED SHIP
WHICH, ALTHOUGH FLYING A YUGOSLAV FLAG, WAS THEN PART OF THE ALLIED
MERCHANT MARINE UNDER THE EFFECTIVE CONTROL OF THE UNITED STATES. 

OF COURSE WHERE AN ALIEN IS SUBJECT TO A WARRANT OF DEPORTATION AND
WITH THE PERMISSION OF THE GOVERNMENT KNOWINGLY AND VOLUNTARILY LEAVES
THE COUNTRY IN ORDER TO AVOID THE CONSEQUENCES OF ENFORCED DEPORTATION,
HE WILL BE DEEMED TO HAVE "LEFT THE UNITED STATES," WITHIN THE MEANING
OF THE STATUTE APPLICABLE AT THE TIME OF PETITIONER'S VOYAGE.  8 U.S.C.
(1940 ED.)  SEC.  180(B).  THIS STATUTE, HOWEVER, LIKE ALL THE
PROVISIONS OF THE IMMIGRATION LAW, "CANNOT BE 'MECHANICALLY APPLIED,' "
COSTELLO V. IMMIGRATION AND NATURALIZATION SERVICE, 376 U.S. 120, 130,
TO A SITUATION WHERE, AS HERE, THE FACTS NEGATE VOLUNTARY DEPARTURE. 

THERE IS NOTHING IN THE RECORD OF THIS CASE TO SHOW THAT PETITIONER
WAS ADVISED OR NOTIFIED THAT HE WAS BEING DEPORTED WHEN HE SHIPPED ON
THE YUGOSLAV VESSEL.  TO THE CONTRARY THE RECORD SHOWS, IN THE LANGUAGE
OF AN IMMIGRATION OFFICER, THAT PETITIONER "RESHIPPED."  NOR CAN IT BE
SAID THAT HE DID SO "VOLUNTARILY."  THE GOVERNMENT FRANKLY STATES, WHAT
IS COMMONLY KNOWN, THAT THERE WAS A SHORTAGE OF MERCHANT SEAMEN DURING
THE WAR, AND THAT ALL AVAILABLE MEANS WERE USED TO INSURE THAT FOREIGN
SEAMEN STRANDED IN THIS COUNTRY WOULD "SHIP FOREIGN," I.E., ON ALLIED
MERCHANT SHIPS.  I IMPLY NO CRITICISM OF THE GOVERNMENT'S EFFORTS TO
MAN NEEDED SHIPS UNDER THE EXIGENCIES OF WAR.  I DO MAINTAIN, HOWEVER,
THAT THE CIRCUMSTANCES NEGATE THE CLAIM THAT PETITIONER "VOLUNTARILY"
DEPARTED OR LEFT THE UNITED STATES WHEN HE "RESHIPPED." 

THE PETITIONER AND THE GOVERNMENT BOTH KNEW WHEN HE SAILED, MOREOVER,
THAT BECAUSE OF THE PREVAILING WARTIME CONDITIONS AND THE LIMITED
ITINERARY OF THE VOYAGE, HE WOULD SHORTLY RETURN AND WOULD BE
READMITTED TO THE UNITED STATES.  INDEED IN THE WARRANT ITSELF,
PETITIONER WAS GIVEN EXPRESS PERMISSION, NOTWITHSTANDING THE ALLEGED
DEPORTATION, TO RECEIVE SHORE LEAVE ON RETURNING.  (FN4)  UNDER THESE
CIRCUMSTANCES, IT IS MY VIEW THAT PETITIONER IN FACT NEVER GAVE UP HIS
RESIDENCE IN THE UNITED STATES.  (FN5)  SINCE HE NEVER ABANDONED HIS
RESIDENCE IN FACT, HE CANNOT, UNDER THE EXPRESS TERMS OF SEC. 101, BE
DEEMED TO HAVE GIVEN IT UP "AS A MATTER OF LAW."  FOR UNDER THIS
DETERMINED NOT BY PETITIONER'S PHYSICAL PRESENCE ON A SHIP FOR A SHORT
VOYAGE NOR BY THE GOVERNMENT'S "INTENT" TO TERMINATE HIS RESIDENCE HERE
- AN INTENT "EXECUTED" MERELY BY MARKING A WARRANT CALLING FOR
PETITIONER'S DEPORTATION TO YUGOSLAVIA "RESHIPPED SS DUBRAVKA."  (FN6)
SINCE PETITIONER, IN MY VIEW, REMAINED A RESIDENT OF THE UNITED STATES
UNDER SEC. 101 NOTWITHSTANDING HIS BRIEF VOYAGE, IT FOLLOWS THAT HE HAS
MET THE CONTINUOUS RESIDENCE REQUIREMENT OF SEC. 249 AND IS ENTITLED TO
REGISTRY. 

IN COSTELLO V. IMMIGRATION AND NATURALIZATION SERVICE, 376 U.S., AT
130, DECIDED LESS THAN TWO MONTHS AGO, THIS COURT SAID THAT "IN THE
ABSENCE OF SPECIFIC LEGISLATIVE HISTORY TO THE CONTRARY, WE ARE
UNWILLING TO ATTRIBUTE TO CONGRESS A PURPOSE TO EXTEND THIS FICTION
(THE RELATION-BACK CONCEPT) TO THE DEPORTATION PROVISIONS  ...  ."  WE
SHOULD SIMILARLY BE UNWILLING TO ATTRIBUTE TO CONGRESS A PURPOSE TO
DEPORT AN ALIEN OF GOOD MORAL CHARACTER WHO HAS BEEN A LONG-TIME
RESIDENT OF THIS COUNTRY AND WHO IS OTHERWISE ELIGIBLE FOR THE RELIEF
AFFORDED BY SEC. 249 OF THE ACT, BY THE FICTION THAT HE DEPORTED
HIMSELF BY SHIPPING, WITH GOVERNMENT ENCOURAGEMENT, AS A SEAMAN ON A
TWO-AND-A-HALF-MONTH ROUND-TRIP VOYAGE TO SOUTH AMERICA DURING THE
WAR.  IN ROSENBERG V. FLEUTI, 374 U.S. 449, WE REFUSED TO CONSTRUE
"ENTRY" SO MECHANICALLY AS TO IMPUTE TO CONGRESS THE INTENT "TO EXCLUDE
ALIENS LONG RESIDENT IN THIS COUNTRY AFTER LAWFUL ENTRY WHO HAVE MERELY
STEPPED ACROSS AN INTERNATIONAL BORDER AND RETURNED IN 'ABOUT A COUPLE
OF HOURS.'"  ID., AT 461.  HERE, TOO, WE SHOULD REFUSE TO DEFINE
DEPARTURE SO MECHANICALLY AS TO IMPUTE TO CONGRESS THE INTENT, CONTRARY
TO THE HUMANE PURPOSE OF SEC. 249, TO PERMIT THE DEPORTATION OF AN
ALIEN RESIDENT IN THIS COUNTRY ALMOST A QUARTER OF A CENTURY. 

FN1  THE COURT'S STATEMENT THAT THE NOTATION "RESHIPPED" WAS "MADE BY
AN UNIDENTIFIED PERSON FOR AN UNKNOWN PURPOSE  ...  ," IS DIFFICULT TO
UNDERSTAND.  ANTE, AT 564, N. 5.  THE NOTATION APPEARS ON THE WARRANT
WHICH HAS CONTINUOUSLY BEEN IN THE EXCLUSIVE POSSESSION OF THE
GOVERNMENT.  THAT THIS NOTATION COULD HAVE BEEN AND WAS MADE ONLY BY AN
IMMIGRATION OFFICIAL IS CONFIRMED BY THE TELEGRAM OF OCTOBER 21, 1942. 

FN2  SECTION 101(A)(33) PROVIDES THAT: 

"THE TERM 'RESIDENCE' MEANS THE PLACE OF GENERAL ABODE; THE PLACE OF
GENERAL ABODE OF A PERSON MEANS HIS PRINCIPAL, ACTUAL DWELLING PLACE IN
FACT, WITHOUT REGARD TO INTENT.  RESIDENCE SHALL BE CONSIDERED
CONTINUOUS FOR THE PURPOSES OF SECTIONS 1482 AND 1484 OF THIS TITLE
WHERE THERE IS A CONTINUITY OF STAY BUT NOT NECESSARILY AN
UNINTERRUPTED PHYSICAL PRESENCE IN A FOREIGN STATE OR STATES OR OUTSIDE
THE UNITED STATES."  66 STAT.  170, 8 U.S.C. SEC. 1101(A)(33). 

FN3  PETITIONER NEVER CONCEALED HIMSELF FROM THE AUTHORITIES, EITHER
BEFORE OR AFTER HIS VOYAGE IN 1942.  ON THE CONTRARY, HE REGISTERED
BOTH AS AN ALIEN AND FOR SELECTIVE SERVICE AND WAS AT ALL TIMES
WILLING, AS HE TESTIFIED UNDER OATH AT THE IMMIGRATION HEARING, TO
"FIGHT FOR THE UNITED STATES GOVERNMENT."  HE HAS A BROTHER AND OTHER
RELATIVES IN THE UNITED STATES; AND HIS WIFE AND CHILDREN, TO WHOM HE
REGULARLY SENDS $200 A MONTH IN YUGOSLAVIA, HAVE AN APPLICATION PENDING
FOR A VISA TO THE UNITED STATES AND ARE AWAITING REGULARIZATION OF HIS
STATUS TO JOIN HIM HERE. 

FN4  THE GOVERNMENT CORRECTLY ARGUES THAT SUCH PERMISSION DID NOT
CONSTITUTE "AN INVITATION" TO RETURN.  THIS FACT DOES, HOWEVER, CONFIRM
WHAT IS CLEAR FROM THE SURROUNDING CIRCUMSTANCES, THAT THE GOVERNMENT
WAS FULLY AWARE THAT HE WOULD BE RETURNING TO THE UNITED STATES. 

FN5  WHILE ON THE SHIP, PETITIONER MAINTAINED ALL HIS TIES IN THE
UNITED STATES, INCLUDING HIS BANK ACCOUNT AND HIS UNION MEMBERSHIP. 

FN6  IN SUPPORT OF ITS CONTENTION THAT "A SEAMAN CAN HAVE HIS
RESIDENCE ABOARD A SHIP," THE GOVERNMENT CITES A NUMBER OF STATUTES,
SUCH AS THE ACT OF MAY 9, 1918, 40 STAT. 542, GIVING RESIDENCE CREDIT
TO A SEAMAN WHO SERVES FOR "THREE YEARS ON BOARD OF MERCHANT OR FISHING
VESSELS OF THE UNITED STATES  ...  ."  NO ONE QUESTIONS THE POWER OF
CONGRESS TO GRANT SUCH CREDIT.  THE GOVERNMENT POINTS TO NO STATUTES OR
CASES, HOWEVER, WHICH INDICATE THAT A SINGLE LIMITED ROUND TRIP VOYAGE
BY A SEAMAN CONVERTS THE SHIP INTO "HIS PRINCIPAL, ACTUAL DWELLING
PLACE
..END :













UNGAR V. SARAFITE, JUDGE OF THE COURT OF GENERAL SESSIONS OF THE COUNTY
OF NEW YORK 376 U.S. 575 


NO. 167.  ARGUED FEBRUARY 24, 1964.  - DECIDED MARCH 30, 1964.  - 12
N.Y.2D 1013, 1104, 189 N.E.2D 629, 190 N.E.2D 539, APPEAL DISMISSED,
CERTIORARI GRANTED, AFFIRMED. 


AN IMPORTANT PROSECUTION WITNESS IN A STATE CRIMINAL TRIAL WAS
ADJUDGED GUILTY OF CRIMINAL CONTEMPT FOR HIS CONDUCT AS A WITNESS IN A
POST-TRIAL HEARING PRESIDED OVER BY THE JUDGE BEFORE WHOM THE CONTEMPT
OCCURRED AT TRIAL.  A REQUEST FOR A CONTINUANCE WAS DENIED, AND THE
WITNESS, HIMSELF AN ATTORNEY, DID NOT DEFEND, ARGUING ONLY THAT A
CONTINUANCE AND A HEARING BEFORE ANOTHER JUDGE SHOULD BE AFFORDED.  THE
JUDGE FOUND THE WITNESS' EXCLAMATION AT TRIAL THAT HE WAS BEING
"COERCED AND INTIMIDATED AND BADGERED" AND THAT "THE COURT IS
SUPPRESSING THE EVIDENCE" TO BE DISRUPTIVE CONTEMPT OF COURT AND
SENTENCED THE WITNESS TO 10 DAYS' IMPRISONMENT AND A FINE.  HELD: 

1.  CRITICISM OF THE COURT'S RULINGS AND FAILURE TO OBEY COURT ORDERS
DO NOT ON THE FACTS OF THIS CASE CONSTITUTE A PERSONAL ATTACK ON THE
TRIAL JUDGE SO PRODUCTIVE OF BIAS AS TO REQUIRE HIS DISQUALIFICATION IN
POST-TRIAL CONTEMPT PROCEEDINGS.  PP. 583-585. 

2.  THE COURT'S CHARACTERIZATION OF THE WITNESS' CONDUCT DURING THE
TRIAL AS CONTEMPTUOUS, DISORDERLY AND MALINGERING WAS NOT A
CONSTITUTIONALLY DISQUALIFYING PREJUDGMENT OF GUILT, BUT AT MOST WAS A
DECLARATION OF A CHARGE AGAINST THE WITNESS; NOR CAN JUDICIAL BIAS BE
INFERRED FROM ANYTHING ELSE IN THIS RECORD, PARTICULARLY WHERE
NONSUMMARY PROCEEDINGS WERE HELD, DISPASSIONATELY AND DECOROUSLY, AFTER
DUE NOTICE AND OPPORTUNITY FOR HEARING.  PP. 586-588. 

3.  THE QUESTION OF A CONTINUANCE IS TRADITIONALLY WITHIN THE TRIAL
JUDGE'S DISCRETION, AND NOT EVERY DENIAL OF A REQUEST FOR MORE TIME
VIOLATES DUE PROCESS, EVEN IF THE PARTY THEREAFTER OFFERS NO EVIDENCE
OR DEFENDS WITHOUT COUNSEL; WHETHER A DENIAL OF A CONTINUANCE IS SO
ARBITRARY AS TO VIOLATE DUE PROCESS DEPENDS ON THE FACTS OF EACH CASE -
HERE THERE WAS NO CONSTITUTIONALLY INADEQUATE TIME TO HIRE COUNSEL AND
PREPARE A DEFENSE.  PP. 588-591. 

UNGAR V. SARAFITE, JUDGE OF THE COURT OF GENERAL SESSIONS OF THE COUNTY
OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, UNGAR, WAS ADJUDGED GUILTY OF CRIMINAL CONTEMPT FOR
HIS CONDUCT AS A WITNESS IN A STATE CRIMINAL TRIAL IN A HEARING
PRESIDED OVER BY THE JUDGE BEFORE WHOM THE CONTEMPT OCCURRED AT TRIAL. 
THE NEW YORK COURT OF APPEALS AFFIRMED THE CONVICTION, 12 N.Y.2D 1013,
1104, 189 N.E.2D 629, 190 N.E.2D 539, AND WE NOTED PROBABLE
JURISDICTION TO CONSIDER WHETHER THE PROCEDURES SEEMINGLY AUTHORIZED BY
SECS. 750 AND 751 OF THE NEW YORK JUDICIARY LAW WERE CONSISTENT WITH
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  375 U.S. 809.  WE
HAVE DECIDED THAT THE CONSTITUTIONAL OBJECTIONS WHICH THIS RECORD SHOWS
TO HAVE BEEN SEASONABLY TENDERED TO THE NEW YORK COURTS AND DECIDED BY
THEM ARE WITHOUT MERIT. 

   I. 

THE CONTEMPT PROCEEDING GREW OUT OF THE TRIAL OF HULAN JACK FOR
CONSPIRACY TO OBSTRUCT JUSTICE AND FOR VIOLATION OF NEW YORK'S CONFLICT
OF INTERESTS LAWS.  UNGAR, A LAWYER, WAS AN IMPORTANT PROSECUTION
WITNESS, FAMILIAR WITH THE MATTERS ON WHICH THE CHARGES WERE BASED AND
IMMUNE FROM PROSECUTION FOR HIS TESTIMONY ON THESE MATTERS BEFORE THE
GRAND JURY.  FROM THE OUTSET OF THE SECOND JACK TRIAL, UNGAR, A HOSTILE
PROSECUTION WITNESS, ENGAGED IN MUCH WRANGLING WITH THE PROSECUTOR OVER
THE FORM OF THE QUESTIONS ASKED AND WAS UNRESPONSIVE TO VARIOUS
QUESTIONS.  ALTHOUGH COUNSEL FOR THE DEFENDANT DID NOT OBJECT, THE
WITNESS BELIEVED THAT THE PROSECUTOR'S QUESTIONS PRESENTED THE
DEFENDANT'S CASE IN A BAD LIGHT OR FAILED TO ELICIT THE WHOLE TRUTH. 
(FN1)  ON SEVERAL OCCASIONS THE TRIAL JUDGE INSTRUCTED THE WITNESS TO
ANSWER THE QUESTIONS AS THEY WERE ASKED, IF HE COULD, BUT NOT TO
REPHRASE THE QUESTIONS OR TO OFFER TESTIMONY GRATUITOUSLY.  (FN2)  WHEN
UNGAR FAILED TO HEED THESE INSTRUCTIONS, THE JUDGE ADMONISHED HIM IN
CHAMBERS "TO CONFINE HIS ANSWERS TO THE QUESTIONS" AND TO LEAVE THE
DEFENSE TO THE ACCUSED'S COUNSEL; HE WARNED THE WITNESS THAT HE WOULD
HOLD HIM TO THE NATURAL CONSEQUENCES OF HIS ACTS.  THE PATTERN,
HOWEVER, CONTINUED.  ON NOVEMBER 25, THE THIRD DAY UNGAR WAS ON THE
STAND, THE COURT INSTRUCTED HIM TO GIVE A RESPONSIVE ANSWER TO A
QUESTION OF APPARENT SIGNIFICANCE TO THE STATE'S CASE.  THERUPON UNGAR,
BEFORE ANSWERING, REQUESTED A RECESS, CLAIMING THAT HE WAS BEING
"PRESSURED AND COERCED AND INTIMIDATED INTO TESTIFYING" AND THAT HE WAS
BEING "BADGERED BY THE COURT AND BY THE DISTRICT ATTORNEY."  WHEN THE
COURT GRANTED A SHORT RECESS BUT REFUSED UNGAR PERMISSION TO LEAVE THE
STAND, THE FOLLOWING ENSUED: 

"THE WITNESS:  I CAN'T TESTIFY, I'M SORRY, YOUR HONOR.  I AM NOT IN
ANY PHYSICAL OR MENTAL CONDITION TO TESTIFY. 

"THE COURT:  MR. WITNESS, NO ONE ASKED YOU ANYTHING.  NOBODY IS
QUESTIONING YOU.  YOU ARE NOT TESTIFYING.  WE HAVE TAKEN A RECESS FOR
ABOUT THREE MINUTES OF SILENCE, AND WE WILL TAKE A FEW MORE MINUTES. 

"THE WITNESS:  I WOULD LIKE TO LEAVE THE STAND, YOUR HONOR. 

"THE COURT:  NO, YOU MAY NOT LEAVE THE STAND. 

"THE COURT:  PROCEED, MR. SCOTTI. 

"THE WITNESS:  I AM NOT GOING TO ANSWER QUESTIONS, YOUR HONOR.  I AM
NOT GOING TO TESTIFY IN THIS CONFUSION, AND THE COURT NOR ANYONE ELSE
WILL MAKE ME TESTIFY IN THIS EMOTIONAL STATE.  I AM ABSOLUTELY UNFIT TO
TESTIFY BECAUSE OF YOUR HONOR'S ATTITUDE AND CONDUCT TOWARDS ME.  I AM
BEING COERCED AND INTIMIDATED AND BADGERED.  THE COURT IS SUPPRESSING
THE EVIDENCE. 

"THE COURT:  YOU ARE NOT ONLY CONTEMPTUOUS BUT DISORDERLY AND
INSOLENT."  (FN3) 

THE JUDGE CALLED A RECESS, DURING WHICH COUNSEL FOR THE DEFENDANT
REQUESTED THE COURT TO APPOINT A DOCTOR TO DETERMINE WHETHER UNGAR WAS
MALINGERING OR INCAPABLE OF TESTIFYING.  UPON RESUMPTION, UNGAR
REPRESENTED THAT HE OBTAINED HIS OWN MEDICAL ASSISTANCE, THE COURT
AGREED WITH UNGAR THAT HE WAS COMPETENT TO TESTIFY, AND DENIED THE
REQUEST.  UNGAR TESTIFIED FOR ANOTHER DAY WITHOUT FURTHER INCIDENT. 

THE JACK TRIAL ENDED ON DECEMBER 6, 1960, AND DURING THE AFTERNOON OF
DECEMBER 8, 1960, JUDGE SARAFITE, THE TRIAL JUDGE, PURSUANT TO THE NEW
YORK PROCEDURE GOVERNING NONSUMMARY TRIAL OF CONTEMPTS, HAD SERVED ON
UNGAR A SHOW-CAUSE ORDER CHARGING THAT UNGAR'S REMARKS FROM THE STAND
ON NOVEMBER 25 CONSTITUTED A WILLFUL AND DISRUPTIVE CONTEMPT OF COURT
AND ORDERING THAT THE APPELLANT APPEAR ON DECEMBER 13 AT 10 A.M. TO
DEFEND AGAINST THE CHARGES.  JUDGE SARAFITE, PRESIDING AT THE HEARING,
DENIED SEVERAL MOTIONS FOR A CONTINUANCE, AND UNGAR'S RETAINED COUNSEL
WAS PERMITTED TO WITHDRAW UPON INFORMING THE COURT THAT HE HAD AGREED
TO UNDERTAKE THE DEFENSE ONLY IF UNGAR COULD OBTAIN A CONTINUANCE. 
AFTER EXHIBITS MATERIAL TO THE CHARGES WERE ADMITTED INTO EVIDENCE,
UNGAR WAS ASKED TO DEFEND.  HE DECLINED, ARGUING THAT A CONTINUANCE AND
A HEARING BEFORE ANOTHER JUDGE SHOULD BE GRANTED.  THE COURT FOUND
UNGAR GUILTY OF CONTEMPT AND, TAKING INTO CONSIDERATION UNGAR'S
EMOTIONAL STATE FROM THE STRESS OF THE JACK TRIAL, SENTENCED HIM TO 10
DAYS' IMPRISONMENT AND IMPOSED A FINE. 

THE APPELLATE DIVISION OF THE NEW YORK SUPREME COURT DISMISSED THE
APPEAL, THE STATE PROCEDURE FOR REVIEW OF NONSUMMARY CONTEMPT
PROCEEDINGS, AND DENIED THE PETITION UNDER ARTICLE 78, CIVIL PRACTICE
ACT, THE PROCEDURE FOR REVIEW OF SUMMARY CONTEMPT CONVICTIONS, (FN4)
BOTH WITHOUT OPINION.  16 APP. DIV. 2D 617.  THE NEW YORK COURT OF
APPEALS AFFIRMED, ALSO WITHOUT OPINION.  12 N.Y.2D 1013, 189 N.E.2D
629.  IT DENIED THE APPELLANT'S MOTION FOR REARGUMENT, THE ONLY PART OF
THE RECORD BEFORE THIS COURT IN WHICH APPELLANT'S FEDERAL
CONSTITUTIONAL CLAIMS WERE ASSERTED, AND GRANTED IN PART APPELLANT'S
MOTION TO AMEND THE REMITTITUR TO SHOW THAT CERTAIN CONSTITUTIONAL
QUESTIONS WERE PASSED UPON IN THE APPEAL.  TREATING BOTH THE APPEAL AND
THE ARTICLE 78 PROCEEDING IDENTICALLY, THE COURT OF APPEALS RULED IN
THE AMENDED REMITTITUR THAT RIGHTS UNDER THE FOURTEENTH AMENDMENT HAD
BEEN RAISED AND PASSED UPON AND STATED THAT "APPELLANT ARGUED THAT SUCH
RIGHTS WERE VIOLATED BY (1) THE TRIAL JUDGE'S REFUSAL TO GRANT AN
ADJOURNMENT OF THE CONTEMPT PROCEEDING UPON PROOF OF THE ENGAGEMENT OF
HIS COUNSEL; (2) THE TRIAL JUDGE'S INVOKING OF SUMMARY POWER UNDER SEC.
751 OF THE JUDICIARY LAW SEVEN DAYS AFTER THE END OF THE TRIAL DURING
WHICH THE CONTEMPT WAS COMMITTED, AND (3) THE SAME TRIAL JUDGE'S
PRESIDING IN THE RESULTING CONTEMPT PROCEEDING EVEN THOUGH HE WAS THE
JUDGE 'PERSONALLY ATTACKED.'"  IN RESPONSE TO THE THIRD CONTENTION, THE
COURT RULED THAT THE APPELLANT'S REMARKS WERE NOT A PERSONAL ATTACK
UPON THE JUDGE.  12 N.Y.2D 1104, 190 N.E.2D 539. 

                                  II. 

WE HAVE DETERMINED THAT THE APPEAL MUST BE DISMISSED FOR WANT OF
JURISDICTION.  THE JURISDICTIONAL STATEMENT CONTAINS A STATUTORY ATTACK
ON THE VALIDITY OF SEC. 750, JUDICIARY LAW, AS UNDULY VAGUE, AND ON
SEC. 751 AS AUTHORIZING A JUDGE WHO IS PERSONALLY ATTACKED TO PRESIDE
OVER A CONTEMPT HEARING AND AS AUTHORIZING SUMMARY PROCEEDINGS AFTER
THE TRIAL IN WHICH THE CONTEMPT OCCURS.  NOTHING IN THE RECORD SHOWS
THAT THESE ISSUES WERE TENDERED TO THE APPELLATE DIVISION OR THE COURT
OF APPEALS PRIOR TO THE MOTION FOR REARGUMENT OR TO AMEND THE
REMITTITUR.  ONLY THE LATTER WAS GRANTED AND THEN ONLY IN PART. 
THEREFORE THE AMENDED REMITTITUR IS DETERMINATIVE IN THIS COURT ON THE
CONSTITUTIONAL ISSUES RAISED AND NECESSARILY PASSED UPON IN THE STATE
COURTS.  BAILEY V. ANDERSON, 326 U.S. 203.  THAT REMITTITUR SPEAKS OF
RIGHTS ASSERTED AND PASSED UPON UNDER THE FOURTEENTH AMENDMENT AND DOES
NOT INDICATE THAT A STATE STATUTE WAS "DRAWN IN QUESTION" AND SUSTAINED
OVER CONSTITUTIONAL OBJECTIONS.  SEE MERGENTHALER LINOTYPE CO. V.
DAVIS, 251 U.S. 256, 259; CHARLESTON FEDERAL SAVINGS & LOAN ASSN. V.
ALDERSON, 324 U.S. 182, 185-186.  THE APPEAL IS ACCORDINGLY DISMISSED. 
(FN5) TREATING THE APPEAL AS A PETITION FOR CERTIORARI, CERTIORARI IS
GRANTED, 28 U.S.C. SEC. 2103, ANONYMOUS V. BAKER, 360 U.S. 287,
LIMITED, HOWEVER, TO THE THREE CONSTITUTIONAL ISSUES WHICH THE AMENDED
REMITTITUR STATES PETITIONER HAD ARGUED AND WHICH, WE ASSUME, WERE THE
CONSTITUTIONAL QUESTIONS THE NEW YORK COURT OF APPEALS PASSED UPON. 

                            III. 

PETITIONER, UNGAR, CLAIMS HIS CONSTITUTIONAL RIGHTS TO A FAIR HEARING
WERE VIOLATED BECAUSE HIS CONTEMPTUOUS REMARKS WERE A PERSONAL ATTACK
ON THE JUDGE WHICH NECESSARILY, AND WITHOUT MORE, BIASED THE JUDGE AND
DISQUALIFIED HIM FROM PRESIDING AT THE POST-TRIAL CONTEMPT HEARING. 
THE NEW YORK COURT OF APPEALS REJECTED THE CLAIM AND WE SEE NO ERROR IN
THIS CONCLUSION.  ASSUMING THAT THERE ARE CRITICISMS OF JUDICIAL
CONDUCT WHICH ARE SO PERSONAL AND SO PROBABLY PRODUCTIVE OF BIAS THAT
THE JUDGE MUST DISQUALIFY HIMSELF TO AVOID BEING THE JUDGE IN HIS OWN
CASE, WE AGREE WITH THE NEW YORK COURT THAT THIS IS NOT SUCH A CASE. 

IT IS TRUE THAT UNGAR OBJECTED STRONGLY TO THE ORDERS OF THE COURT
AND TO ITS CONDUCT OF THE TRIAL DURING HIS EXAMINATION.  HIS FINAL
OUTBURST, THE SUBJECT OF THE CONTEMPT, WAS A FLAT REFUSAL TO ANSWER,
WHEN DIRECTED BY THE COURT, TOGETHER WITH AN INTEMPERATE AND STRONGLY
WORDED COMMENT ON THE PROPRIETY OF THE COURT'S RULING.  BUT WE ARE
UNWILLING TO BOTTOM A CONSTITUTIONAL RULE OF DISQUALIFICATION SOLELY
UPON SUCH DISOBEDIENCE TO COURT ORDERS AND CRITICISM OF ITS RULINGS
DURING THE COURSE OF A TRIAL.  SEE NILVA V. UNITED STATES, 352 U.S.
385.  (FN6)  WE CANNOT ASSUME THAT JUDGES ARE SO IRASCIBLE AND
SENSITIVE THAT THEY CANNOT FAIRLY AND IMPARTIALLY DEAL WITH RESISTANCE
TO THEIR AUTHORITY OR WITH HIGHLY CHARGED ARGUMENTS ABOUT THE SOUNDNESS
OF THEIR DECISIONS.  APPARENTLY BECAUSE UNGAR WAS BEING REQUIRED TO
ANSWER THE QUESTIONS ASKED RATHER THAN SOME OTHERS WHICH HE WOULD
RATHER HAVE ANSWERED AND BECAUSE HE WAS DIRECTED TO CEASE VOLUNTEERING
TESTIMONY, UNGAR CLAIMED HE WAS BEING "BADGERED" AND "COERCED" AND THAT
THE COURT WAS "SUPPRESSING THE EVIDENCE."  THIS WAS DISRUPTIVE,
RECALCITRANT AND DISAGREEABLE COMMENTARY, BUT HARDLY AN INSULTING
ATTACK UPON THE INTEGRITY OF THE JUDGE CARRYING SUCH POTENTIAL FOR BIAS
AS TO REQUIRE DISQUALIFICATION. 

NOR IS THERE ANYTHING ELSE OF SUBSTANCE IN THIS RECORD WHICH SHOWS
ANY DEPRIVATION OF PETITIONER'S RIGHT TO BE TRIED BY AN UNBIASED AND
IMPARTIAL JUDGE WITHOUT A DIRECT PERSONAL INTEREST IN THE OUTCOME OF
THE HEARING.  TUMEY V. OHIO, 273 U.S. 510.  IN RE MURCHISON, 349 U.S.
133.  THE COURT IN THE LATTER CASE HELD THAT A JUDGE ACTING AS A ONE
MAN GRAND JURY INVESTIGATING CRIME COULD NOT CONVICT FOR CONTEMPT
WITNESSES WHO HE BELIEVED TESTIFIED FALSELY OR INADEQUATELY BEFORE HIM
IN SECRET GRAND JURY PROCEEDINGS AND IS NOT CONTROLLING HERE.  FOR BOTH
IN RE OLIVER, 333 U.S. 257, AND MURCHISON MAKE ABUNDANTLY CLEAR THAT
THE COURT WAS NOT DEALING THEREIN WITH THE TRADITIONAL CATEGORY OF
CONTEMPTS COMMITTED IN OPEN COURT, WHICH CANNOT BE LIKENED TO THE SO
CALLED CONTEMPTS COMMITTED IN IN CAMERA GRAND JURY PROCEEDINGS,
ESPECIALLY WHEN THE LATTER ARE FOUNDED UPON PERJURY CHARGES. 

UNLIKE COOKE V. UNITED STATES, 267 U.S. 517, AND OFFUTT V. UNITED
STATES, 348 U.S. 11, WHICH WERE CONTEMPT CASES FROM LOWER FEDERAL
COURTS IN WHICH THE COURT FOUND PERSONAL BIAS SUFFICIENT TO DISQUALIFY
THE JUDGE FROM CONVICTING FOR CONTEMPT, THIS RECORD DOES NOT LEAVE US
WITH AN ABIDING IMPRESSION THAT THE TRIAL JUDGE PERMITTED HIMSELF TO
BECOME PERSONALLY EMBROILED WITH PETITIONER.  WHATEVER DISAGREEMENT
THERE WAS BETWEEN PETITIONER AND THE JUDGE STEMMED FROM THE
PETITIONER'S RESISTANCE TO THE AUTHORITY OF THE JUDGE AND ITS EXERCISE
DURING THE TRIAL.  PETITIONER WAS STRONGLY ADMONISHED THAT HIS CONDUCT
WAS DISRUPTIVE AND DISORDERLY AND THAT HE WOULD BE HELD TO THE NATURAL
CONSEQUENCES OF HIS ACTS.  BUT REQUIRING PETITIONER TO ANSWER THE
QUESTIONS PUT TO HIM AND TO CEASE CAVILING WITH THE PROSECUTOR WAS
FULLY IN ACCORD WITH THE JUDICIAL OBLIGATION TO MAINTAIN THE ORDERLY
ADMINISTRATION OF JUSTICE AND TO PROTECT THE RIGHTS OF THE DEFENDANT ON
TRIAL.  NEITHER IN THE COURTROOM NOR IN THE PRIVACY OF CHAMBERS DID THE
JUDGE BECOME EMBROILED IN INTEMPERATE WRANGLING WITH PETITIONER.  (FN7)
THE JUDGE DEALT FIRMLY WITH UNGAR, BUT WITHOUT ANIMOSITY, AND
PETITIONER'S FINAL INTEMPERATE OUTBURST PROVOKED NO EMOTIONAL REFLEX IN
THE JUDGE.  SEE FISHER V. PACE, 336 U.S. 155.  THE CHARACTERIZATION OF
THE PETITIONER'S CONDUCT AS CONTEMPTUOUS, DISORDERLY, AND MALINGERING
WAS AT MOST A DECLARATION OF A CHARGE AGAINST THE PETITIONER, BASED ON
THE JUDGE'S OBSERVATIONS, WHICH, WITHOUT MORE, WAS NOT A
CONSTITUTIONALLY DISQUALIFYING PREJUDGMENT OF GUILT, JUST AS ISSUANCE
OF A SHOW-CAUSE ORDER IN ANY CRIMINAL CONTEMPT CASE, BASED ON
INFORMATION BROUGHT TO THE ATTENTION OF A JUDGE, IS NOT SUCH A
PREJUDGMENT OF GUILT.  MOREOVER, JUDGE SARAFITE, ALTHOUGH BELIEVING
THAT UNGAR'S CONDUCT WAS DISRUPTIVE OF THE TRIAL, DID NOT PURPORT TO
PROCEED SUMMARILY DURING OR AT THE CONCLUSION OF THE TRIAL, BUT GAVE
NOTICE AND AFFORDED AN OPPORTUNITY FOR A HEARING WHICH WAS CONDUCTED
DISPASSIONATELY AND WITH A DECORUM BEFITTING A JUDICIAL PROCEEDING.  IN
THESE CIRCUMSTANCES, WE CANNOT SAY THERE WAS BIAS, OR SUCH A LIKELIHOOD
OF BIAS OR AN APPEARANCE OF BIAS THAT THE JUDGE WAS UNABLE TO HOLD THE
BALANCE BETWEEN VINDICATING THE INTERESTS OF THE COURT AND THE
INTERESTS OF THE ACCUSED.                                         IV. 

PETITIONER'S ADDITIONAL ATTACK UPON THE HEARING AFFORDED HIM CENTERS
UPON THE DENIAL OF HIS MOTION FOR A CONTINUANCE WHICH IS SAID TO HAVE
DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO ENGAGE COUNSEL AND TO
DEFEND AGAINST THE CHARGE.  THE STATE, AMONG OTHER ARGUMENTS, DENIES
UNGAR'S RIGHT TO ANY HEARING AT ALL, RELYING UPON SACHER V. UNITED
STATES, 343 U.S. 1, AS PERMITTING THE JUDGE SUMMARILY TO CONVICT FOR
CONTEMPT AT THE CONCLUSION OF TRIAL.  WE DO NOT AND NEED NOT, HOWEVER,
DEAL WITH THE CIRCUMSTANCES IN WHICH A TRIAL JUDGE MAY OR MAY NOT
CONSTITUTIONALLY RESORT TO SUMMARY PROCEEDINGS AFTER TRIAL.  FOR IN
THIS INSTANCE, ASSUMING A NONSUMMARY HEARING WAS REQUIRED, (FN8) THE
HEARING AFFORDED PETITIONER SATISFIED THE REQUIREMENTS OF DUE PROCESS. 
(FN9)  IN RE OLIVER, 333 U.S. 257; IN RE GREEN, 369 U.S. 689. 

THE MATTER OF CONTINUANCE IS TRADITIONALLY WITHIN THE DISCRETION OF
THE TRIAL JUDGE, AND IT IS NOT EVERY DENIAL OF A REQUEST FOR MORE TIME
THAT VIOLATES DUE PROCESS EVEN IF THE PARTY FAILS TO OFFER EVIDENCE OR
IS COMPELLED TO DEFEND WITHOUT COUNSEL.  AVERY V. ALABAMA, 308 U.S.
444.  CONTRARIWISE, A MYOPIC INSISTENCE UPON EXPEDITIOUSNESS IN THE
FACE OF A JUSTIFIABLE REQUEST FOR DELAY CAN RENDER THE RIGHT TO DEFEND
WITH COUNSEL AN EMPTY FORMALITY.  CHANDLER V. FRETAG, 348 U.S. 3. 
THERE ARE NO MECHANICAL TESTS FOR DECIDING WHEN A DENIAL OF A
CONTINUANCE IS SO ARBITRARY AS TO VIOLATE DUE PROCESS.  THE ANSWER MUST
BE FOUND IN THE CIRCUMSTANCES PRESENT IN EVERY CASE, PARTICULARLY IN
THE REASONS PRESENTED TO THE TRIAL JUDGE AT THE TIME THE REQUEST IS
DENIED.  NILVA V. UNITED STATES, 352 U.S. 385; TORRES V. UNITED STATES,
270 F.2D 252 (C.A. 9TH CIR.); CF. UNITED STATES V. ARLEN, 252 F.2D 491
(C.A.2D CIR.). 

UNGAR WAS SERVED WITH A SHOW-CAUSE ORDER ON THURSDAY AT ABOUT 5 P.M.,
(FN10) THE HEARING BEING SCHEDULED FOR THE FOLLOWING TUESDAY AT 10 A.M.
UNGAR APPEARED WITH COUNSEL AT THE APOINTED TIME.  TWO SHORT
CONTINUANCES WERE THEN GRANTED TO ALLOW ANOTHER LAWYER TO APPEAR FOR
UNGAR.  WHEN THE LATTER ARRIVED, THE CASE WAS AGAIN CALLED AND COUNSEL
REQUESTED A ONE-WEEK DELAY, INFORMING THE COURT THAT HE WAS UNFAMILIAR
WITH THE CASE BECAUSE HE HAD NOT BEEN CONTACTED UNTIL SATURDAY AND
BECAUSE HE WAS THEN BUSILY ENGAGED IN TRYING ANOTHER CASE.  THE COURT
DENIED THE MOTION FOR ADJOURNMENT, BEING OF THE VIEW THAT UNGAR HAD
BEEN AFFORDED SUFFICIENT TIME TO HIRE COUNSEL WHO WOULD BE AVAILABLE AT
THE TIME OF THE SCHEDULED HEARING.  WE CANNOT SAY THAT THIS DECISION,
IN LIGHT OF ALL THE CIRCUMSTANCES, DENIED PETITIONER DUE PROCESS.  THE
FIVE DAYS' NOTICE GIVEN PETITIONER WAS NOT A CONSTITUTIONALLY
INADEQUATE TIME TO HIRE COUNSEL AND PREPARE A DEFENSE TO A CASE IN
WHICH THE EVIDENCE WAS FRESH, THE WITNESSES AND THE EVIDENCE READILY
AVAILABLE, THE ISSUES LIMITED AND CLEAR-CUT AND THE CHARGE REVOLVING
ABOUT ONE STATEMENT MADE BY UNGAR DURING A RECENTLY COMPLETED TRIAL. 
FURTHERMORE, THE MOTION FOR CONTINUANCE WAS NOT MADE UNTIL THE DAY OF
THE SCHEDULED HEARING AND UNGAR HIMSELF WAS A LAWYER FAMILIAR WITH THE
COURT'S PRACTICE OF NOT GRANTING ADJOURNMENTS. 

AFTER DENIAL OF THE MOTION, COUNSEL WAS PERMITTED TO WITHDRAW AND THE
HEARING PROCEEDED.  UNGAR HIMSELF THEN ARGUED FOR A CONTINUANCE ON THE
SAME GROUND AS HIS COUNSEL AND ON THE ADDITIONAL GROUND THAT A FEW
HOURS WERE NEEDED TO ENABLE HIM TO PRESENT MEDICAL PROOF AND EXPERT
TESTIMONY SHOWING NO CONTEMPT WAS INTENDED.  HE ALSO REFERRED TO A
SNOWSTORM ON THE PREVIOUS SUNDAY AND MONDAY WHICH ALLEGEDLY HAD
PREVENTED ANY PREPARATION WITH COUNSEL.  THE MOTION WAS AGAIN DENIED
AND AGAIN WE CAN FIND NO DENIAL OF DUE PROCESS.  UNGAR ASSERTED NO
REASON WHY THE TESTIMONY AND MEDICAL PROOF, WHICH HE CONCEDED WERE
READILY AVAILABLE AND PRODUCIBLE WITHIN HOURS, WAS NOT OBTAINED BETWEEN
THURSDAY AND TUESDAY AND PRESENTED IN COURT AT THE TIME OF THE
SCHEDULED HEARING, NOR DID HE NAME THE WITNESSES HE WOULD CALL NOR DID
HE GIVE THE SUBSTANCE OF THEIR TESTIMONY.  THE TRIAL JUDGE COULD
REASONABLY HAVE CONCLUDED THAT PETITIONER'S RELIANCE UPON INCLEMENT
WEATHER WAS LESS THAN CANDID SINCE UNGAR'S COUNSEL'S PREVIOUS STATEMENT
THAT HE COULD NOT REPRESENT UNGAR WITHOUT AN ADJOURNMENT WAS GROUNDED
UPON HIS ENGAGEMENT IN ANOTHER TRIAL.  THESE MATTERS ARE, OF COURSE,
ARGUABLE, AND OTHER JUDGES IN OTHER COURTS MIGHT WELL GRANT A
CONTINUANCE IN THESE CIRCUMSTANCES.  BUT THE FACT THAT SOMETHING IS
ARGUABLE DOES NOT MAKE IT UNCONSTITUTIONAL.  GIVEN THE DEFERENCE
NECESSARILY DUE A STATE TRIAL JUDGE IN REGARD TO THE DENIAL OR GRANTING
OF CONTINUANCES, WE CANNOT SAY THESE DENIALS DENIED UNGAR DUE PROCESS
OF LAW.  THE JUDGMENTS ARE AFFIRMED. 

FN1  IN EXPLAINING HIS CONDUCT AT TRIAL, UNGAR STATED IN HIS PETITION
TO THE NEW YORK SUPREME COURT, APPELLATE DIVISION: 

"ON THE BASIS OF FACTS KNOWN TO PETITIONER, IT IS PETITIONER'S BELIEF
AND OPINION THAT HULAN E. JACK IS ABSOLUTELY INNOCENT OF EACH AND EVERY
OF THE CRIMES CHARGED AGAINST HIM, INCLUDING THOSE OF WHICH HE WAS
FOUND GUILTY AT THE SECOND JACK TRIAL.  PETITIONER BELIEVES THAT IN
TRUTH AND IN FACT EVIDENCE AVAILABLE TO THE DISTRICT ATTORNEY OF NEW
YORK COUNTY, WHICH WOULD HAVE CREATED A REASONABLE DOUBT AS TO MR.
JACK'S GUILT OR INNOCENCE, WAS DELIBERATELY AND WILFULLY SUPPRESSED, AS
WILL APPEAR MORE FULLY HEREINAFTER.  ONE OF THE GROUNDS OF PETITIONER'S
CONVICTION FOR CRIMINAL CONTEMPT IS PETITIONER'S STATEMENT TO THE
FOREGOING EFFECT DURING A MOMENT OF GREAT EMOTIONAL STRESS AND PHYSICAL
AND MENTAL EXHAUSTION AT THE SECOND TRIAL OF HULAN E. JACK ON NOVEMBER
25, 1960." 

FN2  THE FOLLOWING INCIDENTS ARE TYPICAL: 

"Q.  YOU HAD DISCUSSIONS? 

"A.  A PRELIMINARY DISCUSSION WITH MR. GALE.  IF YOU WANT ME TO TELL
YOU WHAT HE SAID I WILL BE GLAD TO. 

"Q.  MR. UNGAR, JUST CONFINE YOUR ANSWERS TO MY QUESTIONS. 

"A.  I AM SORRY. 

"Q.  YOU DISCUSSED THIS MATTER OF THE LEASE WITH MR. GALE AND WITH
MR. CYMROT, IS THAT CORRECT? 

"A.  NO. I CAN'T ACCEPT THE WAY YOU PUT THAT QUESTION.  I DISCUSSED: 

"THE COURT:  NO. 

"THE WITNESS:  NO, I CAN'T ACCEPT THAT. 

"THE COURT:  IT IS NOT A QUESTION OF WHETHER YOU ACCEPT IT, IT IS A
QUESTION OF WHETHER YOU CAN ANSWER IT. 

"THE WITNESS:  I CAN'T ANSWER THAT QUESTION THAT WAY. 

"THE COURT:  NEXT QUESTION. 

"Q.  THE POINT IS, YOU DID DISCUSS THE MATTER OF THE LEASE WITH MR.
CYMROT AND MR. GALE, AM I CORRECT? 

"A.  I DON'T KNOW HOW TO ANSWER THAT QUESTION THE WAY YOU FRAME IT
BECAUSE: 

"THE COURT:  THAT IS ENOUGH.  NEXT QUESTION, MR. SCOTTI.  DID YOU
TALK TO THESE PEOPLE? 

"THE WITNESS:  YES. 

"THE COURT:  DID THEY TALK TO YOU? 

"THE WITNESS:  YES. 

"THE COURT:  ABOUT THE LEASE, THE TERMS OF THE LEASE? 

"THE WITNESS:  NO. 

"THE COURT:  NEXT QUESTION. 

     *         *   *         *         * 

"Q.  LET ME PUT THIS QUESTION TO YOU, THEN:  DID THERE COME A TIME
WHILE YOU WERE DISCUSSING WITH THE OWNERS OF 299 BROADWAY - I WITHDRAW
THE QUESTION.  WHEN THE LEASE, THE PROPOSED LEASE HAD BEEN SUBMITTED BY
THE BUREAU OF REAL ESTATE TO THE BOARD OF ESTIMATE FOR THEIR
CONSIDERATION, AND BEFORE THE SCHEDULED DATE FOR A HEARING BEFORE THE
BOARD OF ESTIMATE, WHICH WAS OCTOBER 24, 1957, IS THAT WHEN YOU
DISCUSSED THIS MATTER OF THE PROPOSED LEASE WITH THE DEFENDANT, MR.
JACK?  ...  . 

"A.  I CAN SAY ONLY AT THIS TIME I DO NOT REMEMBER.  I CAN ONLY
REMEMBER WHAT YOU REFRESHED MY RECOLLECTION ABOUT, AS TO THE TESTIMONY
I GAVE IN THE GRAND JURY ON THIS SUBJECT. 

"Q.  YOU SAY THAT WHEN YOU ARE MINDFUL OF THE FACT THAT I HAD
REFRESHED YOUR MEMORY WITH RESPECT TO THIS MATTER? 

"A.  NO, I AM MINDFUL OF THE FACT THAT YOU READ TO ME CERTAIN
TESTIMONY THAT I HAD GIVEN BEFORE THE GRAND JURY ON THIS MATTER, BUT I
CANNOT RECALL THE CONVERSATIONS.  I DIDN'T RECALL IT THE LAST TIME AND
I DO NOT RECALL THEM NOW, BUT I WILL ADOPT WHAT YOU SAID IN THE GRAND
JURY IF I SAID IT THERE. 

"MR. BAKER THEREUPON REQUESTED A CONFERENCE AT THE BENCH.  COUNSEL
FOR BOTH SIDES HAD A DISCUSSION WITH THE JUDGE AT THE BENCH OUT OF THE
HEARING OF THE JURY, AFTER WHICH THE FOLLOWING TOOK PLACE ON THE RECORD
IN OPEN COURT IN THE PRESENCE OF THE JURY: 

"THE COURT:  NOW, MR. WITNESS, THE SUBJECT MATTER DISCUSSED AT THE
BENCH WITH THE COURT RELATED TO YOUR VOLUNTEERING ABOUT THE GRAND JURY,
CONCERNING WHICH YOU WERE NOT ASKED ANYTHING, AND IT CREATED A PROBLEM
HERE WHICH THE LAWYERS DISCUSSED, WHICH MR. BAKER RAISED WITH THE
COURT.  THERE WOULD HAVE BEEN NO SUCH PROBLEM IF YOU HAD NOT REFERRED
TO GRAND JURY TESTIMONY. 

"NOW, MAY I PLEASE ASK YOU WHEN YOU ARE ASKED A QUESTION, JUST ANSWER
YES OR NO, PLEASE.  DON'T VOLUNTEER ANYTHING. 

"PROCEED. 

*         *         *         *         * 

"Q.  THIS IS YOUR RECOLLECTION OF YOUR PREVIOUS TESTIMONY? 

"A.  YES. 

"Q.  NOW, YOU DID TESTIFY THAT YOU PROBABLY MENTIONED CASUALLY TO HIM
THAT YOU WERE BUYING THIS PROPERTY AND THAT THE CITY WAS THE LESSEE,
AND DO YOU RECALL SAYING THIS AT THE LAST TRIAL: 

"Q.  'I CAN'T TELL YOU IN SUBSTANCE BECAUSE I HAVE NO INDEPENDENT
RECOLLECTION OF ANY CONVERSATION.  I PROBABLY MENTIONED CASUALLY TO HIM
THAT I WAS BUYING THIS PROPERTY, AND THAT THE CITY IS THE LESSEE, AND I
THINK I SAID THAT HALF A DOZEN TIMES TOO.' 

"Q.  WAS THAT CORRECT? 

"A.  JUST A MINUTE.  I DON'T KNOW WHAT YOU MEAN BY THE LAST PART OF
WHAT YOU ARE READING.  I PROBABLY SAID IN MY TESTIMONY HALF A DOZEN
TIMES, NOT THAT I SPOKE TO HIM, THE DEFENDANT, A HALF A DOZEN TIMES. 

"THE COURT:  MR. WITNESS, TRY NOT TO DO THAT, PLEASE.  JUST LISTEN TO
THE QUESTION.  THE QUESTIONER IS ASKING YOU, 'DID YOU TESTIFY AS
FOLLOWS AT THE LAST TRIAL?'  TRY TO CONFINE YOUR ANSWER TO THAT
QUESTION. 

"THE WITNESS:  MAY I LOOK AT THE TESTIMONY? 

     *         *         *         *         * 

"A.  NO, I DON'T HAVE THE FIGURES IN FRONT OF ME AT THIS POINT. 

"I WOULD LIKE TO EXPLAIN THE MATTER, WHICH I THINK COULD SIMPLIFY IT
VERY QUICKLY. 

"THE COURT:  NO, NO, NO, MR. UNGAR.  PLEASE DON'T VOLUNTEER
STATEMENTS LIKE THAT. 

"AS I INDICATED TO YOU BEFORE, WE HAVE LAWYERS WHO CONDUCT
LITIGATION.  THEY HAVE A RIGHT TO PHRASE QUESTIONS.  IT IS NOT FOR YOU
TO VOLUNTEER ANYTHING.  IF YOU WANT TO EXPLAIN, OR IF THE QUESTION IS
NOT SATISFACTORY TO YOU, THAT'S NONE OF YOUR BUSINESS. 

"NOW, PLEASE, KEEP THAT IN MIND, WILL YOU." 

FN3  SECTION 750, JUDICIARY OF NEW YORK, DEFINES CRIMINAL CONTEMPT
AS: 

"1.  DISORDERLY, CONTEMPTUOUS, OR INSOLENT BEHAVIOR, COMMITTED DURING
THE COURT'S SITTING, IN ITS IMMEDIATE VIEW AND PRESENCE, AND DIRECTLY
TENDING TO INTERRUPT ITS PROCEEDINGS, OR TO IMPAIR THE RESPECT DUE TO
ITS AUTHORITY  ...  ." 

FN4  DOUGLAS V. ADEL, 269 N.Y. 144, 199 N.E. 35; NEGUS V. DWYER, 90
N.Y. 402; PUGH V. WINTER, 253 APP. DIV. 295, 2 N.Y.S.2D 9; BREWER V.
PLATZEK, 133 APP. DIV. 25, 117 N.Y.S. 852. 

DECISIONS OF THE NEW YORK COURTS MAKE CLEAR THAT A CONTEMPT COMMITTED
IN THE PRESENCE OF THE COURT MAY BE PUNISHED BY THE NONSUMMARY
PROCEDURE APPLICABLE TO OTHER CONTEMPTS OF COURT.  GOODMAN V. SALA, 268
APP. DIV. 826, 49 N.Y.S.2D 245; CHOATE V. BARRETT, 56 HUN 351, 9 N.Y.S.
321, AFF'D, 121 N.Y. 678, 24 N.E. 1095. 

FN5  APPELLANT CONCEDES THAT THE VAGUENESS OBJECTION TO THE STATE
STATUTE WAS NOT EXPLICITLY ARGUED TO THE COURT OF APPEALS.  THE TRIAL
JUDGE DID NOT PURPORT TO INVOKE SUMMARY POWER UNDER SEC. 751, JUDICIARY
LAW, AND THE COURT OF APPEALS EXPRESSLY DECLINED TO CONSTRUE SEC. 751
TO AUTHORIZE A TRIAL JUDGE PERSONALLY ATTACKED TO PRESIDE AT THE
CONTEMPT PROCEEDINGS. 

FN6  SEE ALSO FED. RULES CRIM. PROC. 42(B):  "DISPOSITION UPON NOTICE
AND HEARING.  A CRIMINAL CONTEMPT (EXCEPT ONE SUBJECT TO SUMMARY
DISPOSITION)  ...  SHALL BE PROSECUTED ON NOTICE.  THE NOTICE SHALL
STATE THE TIME AND PLACE OF HEARING, ALLOWING A REASONABLE TIME FOR THE
PREPARATION OF THE DEFENSE, AND SHALL STATE THE ESSENTIAL FACTS
CONSTITUTING THE CRIMINAL CONTEMPT CHARGED AND DESCRIBE IT AS SUCH  ...
.  IF THE CONTEMPT CHARGED INVOLVES DISRESPECT TO OR CRITICISM OF A
JUDGE, THAT JUDGE IS DISQUALIFIED FROM PRESIDING AT THE TRIAL OR
HEARING EXCEPT WITH THE DEFENDANT'S CONSENT." 

FN7  THE FOLLOWING EXCERPT FROM THE DISCUSSION IN THE JUDGE'S CHAMBER
FOLLOWING PERSISTENT RESISTANCE TO INSTRUCTIONS TO ANSWER QUESTIONS IS
PROBABLY THE MOST INTENSE DISAGREEMENT BETWEEN PETITIONER AND THE JUDGE
THAT OCCURRED DURING THE TRIAL. 

"THE COURT:  NOW, MR. WITNESS, THIS CASE WAS TRIED ONCE BEFORE AND
TOOK CONSIDERABLE TIME.  YOU WERE A WITNESS FOR MANY DAYS.  A NUMBER OF
INCIDENTS OCCURRED IN THAT TRIAL WHICH, IN MY JUDGMENT, DIRECTLY TENDED
TO INTERRUPT THE PROCEEDINGS OF THE COURT AND TO IMPAIR THE RESPECT DUE
TO THE AUTHORITY OF THE COURT, AND YOU WERE THE ONE WHO CREATED THOSE
INCIDENTS, IN MY JUDGMENT. 

"I TOLD YOU THEN, AT THE FIRST TRIAL, THAT YOU WERE CREATING A VERY
SERIOUS PROBLEM FOR THE COURT AND THAT, AS A LAWYER, I ASSUMED YOU KNEW
WHAT THE PROBLEM WAS. 

"I SHOULD LIKE VERY MUCH TO AVOID ANY REPETITION OF WHAT HAPPENED THE
LAST TIME. 

"WE EACH HAVE A FUNCTION TO PERFORM HERE.  WHETHER IT IS AN AGREEABLE
FUNCTION OR A DISAGREEABLE FUNCTION IS OF NO CONCERN. 

"NOW I HAVE SAID TO YOU UP TO NOW ON A NUMBER OF OCCASIONS THAT YOU
SHOULD CONFINE YOUR ANSWERS TO THE QUESTIONS, NOT TO VOLUNTEER, NOT TO
GET INTO ANY DISPUTE OR DISCUSSIONS, NOT TO TRY TO INDICATE WHAT YOU
THINK THE QUESTION SHOULD BE OR HOW YOU SHOULD ANSWER IT. 

"THIS IS A TRIAL BEFORE THE JURY, NOT BEFORE THE COURT ALONE.  AS A
JUDGE, I MUST RULE IN ACCORDANCE WITH MY UNDERSTANDING OF THE LAW,
WHICH I AM DOING.    "I HOPE YOU UNDERSTAND WHAT I AM SAYING, MR.
UNGAR.  DO YOU? 

"THE WITNESS:  WELL, I WOULD LIKE TO SAY A WORD, IF I MAY. 

"THE COURT:  NO. 

"THE WITNESS:  I CAN'T UNDERSTAND WHAT YOUR HONOR IS SAYING. 

"THE COURT:  THEN IF YOU CAN'T UNDERSTAND: 

"THE WITNESS:  I UNDERSTAND WHAT YOUR HONOR IS SAYING: 

"THE COURT:  I DON'T WANT ANYTHING FURTHER, MR. UNGAR.  ALL I WANT TO
ADD TO WHAT I HAVE SAID, SINCE YOU SAID YOU DO NOT UNDERSTAND WHAT I AM
SAYING:    "THE WITNESS:  I UNDERSTAND WHAT YOUR HONOR IS SAYING: 

"THE COURT:  YOU SAID YOU DIDN'T. 

"THE WITNESS:  BUT I CANNOT UNDERSTAND IT IN A VACUUM; THAT'S WHAT I
AM TRYING TO SAY, YOUR HONOR. 

"THE COURT:  DON'T ARGUE WITH ME, MR. UNGAR. 

"THE WITNESS:  I HAVE GOT TO UNDERSTAND THE QUESTION, IN ORDER TO
ANSWER IT.  I CAN'T ANSWER A QUESTION MERELY IF YOUR HONOR SAYS,
'ANSWER IT,' IF IT DOESN'T MAKE SENSE TO ME OR IF IT'S CREATING A FALSE
IMPRESSION: 

"THE COURT:  WILL YOU DESIST.  YOU SEE, IT'S NONE OF YOUR BUSINESS
WHETHER IT CREATES IN YOUR JUDGMENT A FALSE IMPRESSION OR NOT.  THE
DEFENDANT IS REPRESENTED HERE BY A LAWYER, AND THE PEOPLE ARE
REPRESENTED BY A LAWYER.  IT IS FOR THEM TO CONDUCT THIS LITIGATION,
AND NOT YOU. 

"NOW I AM ONLY GOING TO MAKE ONE MORE STATEMENT AND WE WILL RETURN TO
THE COURTROOM. 

"THERE IS A RULE OF LAW THAT EVERY MAN IS PRESUMED TO INTEND THE
NATURAL CONSEQUENCES OF HIS ACT.  I AM GOING TO HOLD YOU TO THAT
STANDARD.  AND WHETHER YOU TELL ME THAT YOU UNDERSTAND WHAT I SAID OR
NOT WILL NOT BE THE TEST I SHALL USE IN WHATEVER ACTION I PROPOSE TO
TAKE." 

"NOT ONLY SHOULD YOU, AS A MAN AND A CITIZEN, BE HELD TO INTEND THE
NATURAL CONSEQUENCES OF YOUR ACT, BUT YOU AS A LAWYER SHOULD BE HELD TO
A HIGHER STANDARD OF KNOWING THAT YOU ARE RESPONSIBLE FOR THE NATURAL
CONSEQUENCES OF YOUR ACT. 

"ALSO, THERE IS A RULE THAT EVERY CITIZEN IS PRESUMED TO KNOW THE
LAW.  I TAKE IT THAT EVERY CITIZEN DOES NOT KNOW THE RULES OF THE LAW
OF EVIDENCE.  BUT AS A LAWYER, YOU CERTAINLY KNOW THE RULES OF LAW OF
EVIDENCE. 

"LET'S RETURN TO THE COURTROOM. 

"THE WITNESS:  I THINK I HAVE A RIGHT, IF YOUR HONOR PLEASE: 

"THE COURT:  I SHALL NOT: 

"THE WITNESS:  - TO HAVE A STATEMENT MADE. 

"YOUR HONOR HAS MADE A STATEMENT WHICH IS INTIMIDATING.  YOUR HONOR
HAS MADE A STATEMENT WHICH IS COERCIVE, AND I THINK I HAVE A RIGHT TO
MAKE A STATEMENT. 

"NOW IF YOUR HONOR INTENDS TO TAKE ACTION AGAINST ME, I SUBMIT THAT
THE ACTION SHOULD BE TAKEN HERE AND NOW.  BUT I INSIST UPON A RIGHT,
AND THINK THAT I AM JUSTIFIED AS A WITNESS TO MAKE A STATEMENT BEFORE
YOUR HONOR TAKES ANY ACTION. 

"I HAVE A RIGHT TO UNDERSTAND ANY QUESTION THAT'S PROPOUNDED TO ME,
AND I HAVE A RIGHT, IF A QUESTION IS FRAMED IN SUCH A WAY WHICH CREATES
A REFLECTION UPON ME AND WHICH IS NOT A FACT - I HAVE A RIGHT: 

"THE COURT:  KEEP YOUR VOICE DOWN, MR. UNGAR.  I KEPT MY VOICE DOWN. 

"THE WITNESS:  I'M SORRY, I APOLOGIZE. 

"THE COURT:  AND STOP DOING THAT.  DON'T RAISE YOUR VOICE.  AND YOU
HAVE SAID ENOUGH.  I HAVE YOUR POINT. 

"NOW THE COURT IS NOT INTIMIDATING YOU.  IT IS NOT COERCING YOU, AND
IT IS NOT THREATENING YOU. 

"THE WITNESS:  I DISAGREE WITH YOUR HONOR. 

"THE COURT:  I DIDN'T ASK YOU WHETHER YOU DISAGREED. 

"AND I SUGGEST TO YOU, MR. UNGAR, THAT YOU SPEAK WHEN YOU ARE ASKED
TO SPEAK, FROM NOW ON - PLEASE. 

"NOW THE PURPOSE OF CALLING YOU IN HERE WAS NOT TO INTIMIDATE YOU OR
COERCE YOU IN THE SLIGHTEST.  BUT THE PURPOSE IS TO AVOID A REPETITION
IN THE COURTROOM OF THE UNSEEMLY PERFORMANCE OF THE LAST TRIAL, WHICH I
SHALL NOT TOLERATE. 

"NOW LET'S RETURN TO THE COURTROOM. 

"THE WITNESS:  I BELIEVE I HAVE TRIED: 

"THE COURT:  I TOLD YOU TO SPEAK WHEN YOU WERE ASKED TO SPEAK. 

"THE WITNESS:  HAVE I A RIGHT: 

"THE COURT:  NO. 

"THE WITNESS:  HAVE I A RIGHT TO UNDERSTAND QUESTIONS? 

"THE COURT:  LET'S RETURN TO THE COURTROOM. 

"THE WITNESS:  I AM ASKING THE COURT IF I HAVE A RIGHT TO ASK THE
QUESTION." 

FN8  THIS DISPOSES OF PETITIONER'S SECOND ARGUMENT SET OUT IN THE
AMENDED REMITTITUR OF THE COURT OF APPEALS THAT THE INVOCATION OF
SUMMARY POWER SEVEN DAYS AFTER THE END OF THE TRIAL DURING WHICH THE
CONTEMPT WAS COMMITTED DENIED DUE PROCESS. 

FN9  THESE REQUIREMENTS INCLUDE THE RIGHT TO BE ADEQUATELY ADVISED OF
CHARGES, A REASONABLE OPPORTUNITY TO MEET THE CHARGES BY WAY OF DEFENSE
OR MITIGATION, REPRESENTATION BY COUNSEL, AND AN ADEQUATE OPPORTUNITY
TO CALL WITNESSES. 

FN10  UNGAR WAS ALSO TOLD AFTER HIS OUTBURST ON NOVEMBER 25 "TO KEEP
HIMSELF AVAILABLE" FOR FURTHER PROCEEDINGS. 

MR. JUSTICE HARLAN, CONCURRING. 

I AGREE WITH AND JOIN THE OPINION OF THE COURT, BUT WISH TO ADD THAT
THE CONTEMPT PROCEDURE EMPLOYED BY JUDGE SARAFITE ACCORDED UNGAR MORE
THAN HIS DUE UNDER SACHER V. UNITED STATES, 343 U.S. 1.  IN LIGHT OF
THAT CASE IT IS CLEAR THAT JUDGE SARAFITE, SO FAR AS THE FEDERAL
CONSTITUTION IS CONCERNED, COULD HAVE PROCEEDED AT THE CLOSE OF THE
MAIN TRIAL TO HOLD UNGAR IN CONTEMPT WITHOUT ANY HEARING AT ALL.  THE
FACT THAT THE CONTEMPT ADJUDICATION FOLLOWED A FIVE-DAY NOTICE GIVEN
UNGAR TWO DAYS AFTER THE CLOSE OF THE TRIAL CANNOT, AS A CONSTITUTIONAL
MATTER, WELL BE DEEMED TO HAVE EXTINGUISHED THE JUDGE'S POWER TO
PROCEED SUMMARILY. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
GOLDBERG CONCUR, DISSENTING. 

THIS CASE IS A CLASSIC EXAMPLE OF ONE SITUATION WHERE THE JUDGE WHO
CITES A PERSON FOR CONTEMPT SHOULD NOT PRESIDE OVER THE CONTEMPT
TRIAL.  (FN1)  THAT WAS THE RESULT IN OFFUTT V. UNITED STATES, 348 U.S.
11, 17, WHERE THE JUDGE BECAME "PERSONALLY EMBROILED" WITH THE PERSON
HE LATER HELD IN CONTEMPT; AND WE, PURSUANT TO OUR SUPERVISORY
AUTHORITY OVER THE FEDERAL SYSTEM, ORDERED A NEW TRIAL BEFORE A
DISINTERESTED JUDGE.  THE SAME RESULT IS REQUIRED UNDER DUE PROCESS
STANDARDS.  IN RE MURCHISON, 349 U.S. 133. 

I START WITH WHAT CHIEF JUSTICE TAFT WROTE IN COOKE V. UNITED STATES,
267 U.S. 517, 539: 

"THIS RULE OF CAUTION IS MORE MANDATORY WHERE THE CONTEMPT CHARGED
HAS IN IT THE ELEMENT OF PERSONAL CRITICISM OR ATTACK UPON THE JUDGE. 
THE JUDGE MUST BANISH THE SLIGHTEST PERSONAL IMPULSE TO REPRISAL, BUT
HE SHOULD NOT BEND BACKWARD AND INJURY THE AUTHORITY OF THE COURT BY
TOO GREAT LENIENCY.  THE SUBSTITUTION OF ANOTHER JUDGE WOULD AVOID
EITHER TENDENCY BUT IT IS NOT ALWAYS POSSIBLE.  OF COURSE WHERE ACTS OF
CONTEMPT ARE PALPABLY AGGRAVATED BY A PERSONAL ATTACK UPON THE JUDGE IN
ORDER TO DRIVE THE JUDGE OUT OF THE CASE FOR ULTERIOR REASONS, THE
SCHEME SHOULD NOT BE PERMITTED TO SUCCEED.  BUT ATTEMPTS OF THIS KIND
ARE RARE.  ALL OF SUCH CASES, HOWEVER, PRESENT DIFFICULT QUESTIONS FOR
THE JUDGE.  ALL WE CAN SAY UPON THE WHOLE MATTER IS THAT WHERE
CONDITIONS DO NOT MAKE IT IMPRACTICABLE, OR WHERE THE DELAY MAY NOT
INJURE PUBLIC OR PRIVATE RIGHT, A JUDGE CALLED UPON TO ACT IN A CASE OF
CONTEMPT BY PERSONAL ATTACK UPON HIM, MAY, WITHOUT FLINCHING FROM HIS
DUTY, PROPERLY ASK THAT ONE OF HIS FELLOW JUDGES TAKE HIS PLACE." 

THERE IS IN OUR ANNALS A NO MORE APT CASE FOR FOLLOWING THAT COURSE
THAN THE PRESENT ONE.  HERE THE JUDGE WHO CITED PETITIONER FOR CONTEMPT
DID BECOME "PERSONALLY EMBROILED" WITH HIM AND, IN SUBSTANCE, ADJUDGED
HIM A MALINGERER AND FOUND HIM GUILTY BEFORE THE TRIAL - INDEED BEFORE
THE CITATION. 

PETITIONER, A WITNESS IN A CRIMINAL TRIAL IN A NEW YORK COURT, WAS
FOUND GUILTY OF CONTEMPT OF COURT BY THE JUDGE WHO PRESIDED AT THE
TRIAL, THE CONTEMPT BEING TRIED AFTER THE MAIN TRIAL HAD ENDED.  (FN2)
HE WAS FINED $250 AND SENTENCED TO 10 DAYS IN JAIL.  THE CONVICTION WAS
SUSTAINED BY THE COURT OF APPEALS WITHOUT AN OPINION.  THAT COURT,
HOWEVER, SAID IN ITS REMITTITUR: 

"  ...  WE POINT OUT THAT WHERE THE ALLEGED CONTEMPT CONSISTS OF THE
MAKING OF CHARGES OF WRONGDOING BY THE TRIAL JUDGE HIMSELF HE SHOULD,
WHERE DISPOSITION OF THE CONTEMPT CHARGE CAN BE WITHHELD UNTIL AFTER
THE TRIAL AND WHERE IT IS OTHERWISE PRACTICABLE, ORDER THE CONTEMPT
PROCEEDING TO BE TRIED BEFORE A DIFFERENT JUDGE." 

IT WAS BECAUSE THE COURT OF APPEALS THOUGHT THAT THIS CONTEMPT DID
NOT INVOLVE "THE MAKING OF CHARGES OF WRONGDOING BY THE TRIAL JUDGE
HIMSELF" THAT IT UPHELD TRIAL OF THIS CONTEMPT CHARGE BY THE OFFENDED
JUDGE.  BUT THIS CONTEMPT CHARGE, AS I READ IT, DID CHARGE SUCH
WRONGDOING: 

"ON SAID NOVEMBER 25, 1960, THE RESPONDENT, AS A WITNESS IN SAID
TRIAL COMMITTED A WILFUL CONTEMPT OF COURT DURING THE SITTING OF THE
COURT, AND IN ITS IMMEDIATE VIEW AND PRESENCE, IN THAT HE WILFULLY AND
IN A REPEATED EFFORT, OBVIOUS TO THE COURT, TO DISRUPT THE ORDERLY
TRIAL OF THE CASE THEREIN, CULMINATED HIS CONTEMPTUOUS CONDUCT BY
SHOUTING IN A LOUD, ANGRY, DISORDERLY, CONTEMPTUOUS, AND INSOLENT TONE
DIRECTLY TENDING TO INTERRUPT THE PROCEEDINGS OF THE COURT AND TO
IMPAIR THE RESPECT DUE TO THE AUTHORITY OF THE COURT: 

"'I AM ABSOLUTELY UNFIT TO TESTIFY BECAUSE OF YOUR HONOR'S ATTITUDE
AND CONDUCT TOWARDS ME.  I AM BEING COERCED AND INTIMIDATED AND
BADGERED.  THE COURT IS SUPPRESSING THE EVIDENCE.'" 

THE CHARGE THAT THE TRIAL JUDGE WAS "SUPPRESSING THE EVIDENCE"
CERTAINLY WAS A CHARGE OF "WRONGDOING," IN THE SENSE OF MALFEASANCE. 
THE WITNESS DID INDEED COMPLAIN OF THE TRIAL JUDGE'S "ATTITUDE AND
CONDUCT" TOWARD HIM.  WHEN HE SAID "I AM BEING COERCED AND INTIMIDATED
AND BADGERED," HE MEANT IN THE SETTING OF THOSE WORDS NOT THAT THE
PROSECUTOR ALONE WAS MISCONDUCTING HIMSELF BUT THAT THE JUDGE WAS
ALSO.  ANY DOUBT IS DISPELLED BY HIS FINAL STATEMENT, "THE COURT IS
SUPPRESSING THE EVIDENCE."  IT IS OBVIOUS THAT WHATEVER ELSE MAY BE
SAID OF THE ALLEGED CONTEMPT IT WAS AIMED AT THE JUDGE AND IMPLICATED
HIM AND THE JUDICIAL PROPRIETIES. 

THE EPISODE WAS A HEAD-ON COLLISION BETWEEN THE JUDGE AND A WITNESS
WHO SAID HE COULD NOT UNDERSTAND THE QUESTIONS ASKED HIM AND THEREFORE
COULD NOT TRUTHFULLY ANSWER.  IT WAS A HEAD-ON COLLISION BETWEEN A
WITNESS WHO COMPLAINED HE WAS UNFIT TO TESTIFY AND A JUDGE WHO SAID HIS
PHYSICAL CONDITION WAS FAKED: 

"THE WITNESS:  IF YOUR HONOR PLEASE, I WANT TO RECESS AT THIS POINT. 
I CAN'T TESTIFY.  I AM TOO UPSET, AND I AM MUCH TOO NERVOUS.  AND I
CAN'T TESTIFY UNDER THESE CIRCUMSTANCES.  I AM NOT BEING A VOLUNTARY
WITNESS.  I AM BEING PRESSURED AND COERCED AND INTIMIDATED INTO
TESTIFYING, AND I CAN'T TESTIFY UNDER THESE CIRCUMSTANCES. 

     *         *         *         *         * 

"THE COURT:  WE SHALL PAUSE FOR A MINUTE OR TWO, MR. WITNESS. 

"(WHEREUPON, THERE WAS A BRIEF INTERVAL OF SILENCE IN THE COURTROOM.) 

"THE WITNESS:  I CAN'T TESTIFY, YOUR HONOR.  I AM SHAKING ALL OVER. 
AND I MUST HAVE A RECESS, I JUST AM ABSOLUTELY A BUNDLE OF NERVES AT
THIS POINT, AND I DON'T KNOW WHAT I'M DOING OR SAYING ANY MORE. 

"I ASK FOR THE PRIVILEGE OF LEAVING THE STAND, YOUR HONOR. 

"THE COURT:  NO, YOU WILL REMAIN ON THE STAND. 

"THE WITNESS:  I CAN'T TESTIFY, I'M SORRY, YOUR HONOR.  I AM NOT IN
ANY PHYSICAL OR MENTAL CONDITION TO TESTIFY. 

"THE COURT:  MR. WITNESS, NO ONE ASKED YOU ANYTHING.  NOBODY IS
QUESTIONING YOU.  YOU ARE NOT TESTIFYING.  WE HAVE TAKEN A RECESS FOR
ABOUT THREE MINUTES OF SILENCE, AND WE WILL TAKE A FEW MORE MINUTES. 

"THE WITNESS:  I WOULD LIKE TO LEAVE THE STAND, YOUR HONOR. 

"THE COURT:  NO, YOU MAY NOT LEAVE THE STAND. 

"(WHEREUPON, THERE WAS A FURTHER BRIEF INTERVAL OF SILENCE IN THE
COURTROOM.) 

"THE COURT:  PROCEED, MR. SCOTTI. 

"THE WITNESS:  I AM NOT GOING TO ANSWER QUESTIONS, YOUR HONOR.  I AM
NOT GOING TO TESTIFY IN THIS CONFUSION, AND THE COURT NOR ANYONE ELSE
WILL MAKE ME TESTIFY IN THIS EMOTIONAL STATE.  I AM ABSOLUTELY UNFIT TO
TESTIFY BECAUSE OF YOUR HONOR'S ATTITUDE AND CONDUCT TOWARDS ME.  I AM
BEING COERCED AND INTIMIDATED AND BADGERED.  THE COURT IS SUPPRESSING
THE EVIDENCE. 

"THE COURT:  YOU ARE NOT ONLY CONTEMPTUOUS BUT DISORDERLY AND
INSOLENT. 

"THE WITNESS:  I HAVE ASKED FOR THE PRIVILEGE OF LEAVING THE STAND
FOR FIVE MINUTES. 

"THE COURT:  PUT YOUR QUESTION, MR. SCOTTI. 

     *         *         *         *        * 

"Q.  MR. UNGAR, DID YOU TELL MR. JACK THAT SATURDAY MORNING THAT
THERE WAS A CONFLICT BETWEEN YOUR STORY TO ME AND MR. BECHTEL'S STORY
TO ME? 

"A.  I CAN'T ANSWER ANY QUESTIONS.  I AM NOT EVEN CONCENTRATING ON
WHAT YOU ARE SAYING.  I CAN'T EVEN THINK CLEARLY AT THIS MINUTE ANY
MORE. 

"THE COURT:  DO YOU REFUSE TO ANSWER? 

"THE WITNESS:  I DON'T KNOW WHAT HE IS TALKING ABOUT, JUDGE.  I AM AN
EMOTIONAL WRECK AT THIS TIME.  I AM ASKING FOR A RECESS.  I ASK THE
RIGHT TO GET OFF THIS STAND SO THAT I CAN CONTAIN MYSELF. 

"THE COURT:  DO YOU REFUSE TO ANSWER THE QUESTION, MR. UNGAR? 

"THE WITNESS:  I SAID I CAN'T ANSWER THE QUESTION, YOUR HONOR. 

"THE COURT:  PUT THE QUESTION, MR. REPORTER. 

"MR. SCOTTI:  MR. REPORTER, READ THE QUESTION. 

"(THE QUESTION WAS READ BY THE COURT STENOGRAPHER AS FOLLOWS: 

"'Q.  MR. UNGAR, DID YOU TELL MR. JACK THAT SATURDAY MORNING THAT
THERE WAS A CONFLICT BETWEEN YOUR STORY TO ME AND MR. BECHTEL'S STORY
TO ME?') 

"THE COURT:  LET THE RECORD SHOW THAT THE DEFENDANT HAS REMAINED
SILENT AND HAS NOT ANSWERED THE QUESTION FOR FOUR MINUTES. 

"MR. SCOTTI:  YOU MEAN THE WITNESS, YOUR HONOR. 

"THE COURT:  WHAT DID I SAY? 

"MR. SCOTTI:  THE DEFENDANT. 

"THE COURT:  OBVIOUSLY I MEANT THE WITNESS.  VERY WELL, WE WILL
ADVANCE OUR LUNCHEON RECESS. 

"DO NOT DISCUSS THE CASE, LADIES AND GENTLEMEN, DO NOT FORM OR
EXPRESS ANY OPINION AS TO THE GUILT OR INNOCENCE OF THIS DEFENDANT
UNTIL THE CASE IS FINALLY SUBMITTED TO YOU.  SINCE WE ARE ADVANCING THE
HOUR WHEN WE START OUR LUNCHEON RECESS, WE WILL GET BACK HERE AT 1:45. 
YOU MAY RETIRE.    "(THE JURORS THEN LEFT THE COURT ROOM AND THE
FOLLOWING TOOK PLACE IN THEIR ABSENCE:) 

"MR. BAKER (COUNSEL FOR DEFENDANT):  MAY I BE HEARD BEFORE THE COURT
LEAVES? 

"THE COURT:  YES. 

"MR. BAKER:  THERE HAS BEEN A STATEMENT MADE BY THE WITNESS THAT HE
IS EMOTIONALLY OR MENTALLY INCAPABLE OF TESTIFYING.  SO THAT THE RECORD
WOULD BE CRYSTAL CLEAR, I MAKE A REQUEST OF THE COURT TO APPOINT A
DOCTOR TO DETERMINE WHETHER OR NOT THERE IS MALINGERING ON THE PART OF
THE WITNESS OR ANYTHING OF THE SORT. 

"THE COURT:  IN MY JUDGMENT, THIS IS AS NEAR AS MALINGERING COULD
EVER BE DETERMINED FROM MY OBSERVATION. 

"THE WITNESS:  I JOIN IN THAT REQUEST, IF YOUR HONOR PLEASE. 

"THE COURT:  WHAT IS THE GROUND OF YOUR APPLICATION? 

"MR. BAKER:  THE GROUND OF MY APPLICATION IS, IF THE COURT PLEASE,
THE LAW PRESUMES THAT WHEN A WITNESS TESTIFIES HE IS TO BE LUCID.  THIS
WITNESS SAYS HE IS NOT.  ANY TESTIMONY HE GIVES MAY BE PREJUDICIAL TO
THE RIGHTS AND INTERESTS OF THE DEFENDANT.  THAT'S THE GROUND OF MY
OBJECTION, AND SO THAT THE RECORD BE CLEAR, WHETHER THIS IS MALINGERING
OR NOT, THERE IS A MENTAL AND EMOTIONAL CONDITION PRESENTLY EXISTING IN
THIS WITNESS SO THAT HE COULD NOT BE A COMPETENT WITNESS TO TESTIFY,
ALL OF WHICH MAY BE TO THE DETRIMENT OF THE DEFENDANT. 

"THE COURT:  I SHALL RESERVE DECISION ON YOUR APPLICATION AND I SHALL
DIRECT THE WITNESS TO REMAIN IN COURT UNTIL I DECIDE IT.  THE COURT
WILL TAKE A RECESS UNTIL 1:45. 

"(AFTER A SHORT RECESS THE COURT RETURNED TO THE COURTROOM, MR. BAKER
AND THE DEFENDANT BEING PRESENT, AND THE FOLLOWING TOOK PLACE:) 

"THE COURT:  MR. BAKER, I WANTED TO GET BOTH SIDES HERE.  THE REASON
I HAVE ASKED MR. UNGAR TO REMAIN WAS BECAUSE IF I HAD MADE A DECISION,
WHY, THEN, I COULD HAVE ACTED ON IT.  SINCE I HAVEN'T MADE A DECISION I
SEE NO POINT IN HAVING HIM REMAIN HERE.  HE IS ENTITLED TO TAKE HIS
LUNCHEON RECESS THE SAME AS ANYBODY ELSE, BUT I DIDN'T WANT TO LOSE
TIME IF I COULD HELP IT. 

"MR. BAKER:  I AM GLAD THE COURT INDICATED THE PURPOSE OF ASKING THE
WITNESS TO REMAIN. 

"THE COURT:  THAT WAS THE ONLY PURPOSE, BECAUSE I SAID TO YOU I
RESERVE DECISION, AND I THOUGHT I MIGHT BE ABLE TO DECIDE IT AND SAVE
TIME.  WOULD IT BE A BURDEN TO GIVE ME ANOTHER FIVE MINUTES? 

"MR. BAKER:  NO, YOUR HONOR. 

"THE WITNESS:  IS YOUR HONOR ADDRESSING ME? 

"THE COURT:  YES. 

"THE WITNESS:  NO, IT IS NOT A BURDEN, YOUR HONOR, BECAUSE I WAS NOT
MALINGERING, AND I HAVE BEEN SHAKING EVER SINCE THIS ISSUE STARTED. 

"THE COURT:  I JUST WANT FIVE MORE MINUTES, AND IF I DON'T DECIDE IT
BY THAT TIME THEN WE WILL ALL GO TO LUNCH. 

"(A SHORT RECESS WAS TAKEN; THE COURT LEFT THE COURTROOM AND
RETURNED.) 

"THE COURT:  MR. UNGAR, I HAVEN'T MADE UP MY MIND WHAT COURSE OF
ACTION I SHOULD TAKE.  I THINK YOU OUGHT TO TAKE A RECESS UNTIL 1:45. 
LET US SEE WHAT THE SITUATION IS AT THAT TIME. 

   *         *         *         *         * 

"THE COURT:  NOW, MR. WITNESS, BEFORE WE TOOK A LUNCHEON RECESS YOU
PERSONALLY, AS A WITNESS, HAD ASKED FOR A RECESS.  DO YOU RECALL THAT? 

"THE WITNESS:  I DO, YOUR HONOR. 

"THE COURT:  NOW THAT WE HAVE HAD THE LUNCHEON RECESS AND YOU HAVE
COME BACK, DO YOU STILL ASK FOR A RECESS? 

"THE WITNESS:  WELL, I WOULD LIKE TO REPORT TO THE COURT THAT I WENT
TO THE HOSPITAL AND RECEIVED AN INJECTION, AND I THINK THAT I CAN
PROCEED TEMPORARILY, IN ADDITION TO THE PILLS THAT I HAVE TAKEN THIS
MORNING. 

"THE COURT:  VERY WELL. 

"MR. SCOTTI:  MAY I PROCEED, YOUR HONOR? 

"THE COURT:  YES." 

WHEN COUNSEL FOR THE DEFENDANT AGAIN ASKED FOR A RULING ON THE MOTION
TO HAVE A DOCTOR EXAMINE PETITIONER THE COURT SAID: 

"I THOUGHT IT WAS OBVIOUS TO EVERYONE THAT WHEN THE WITNESS RESUMED
THE STAND AT 1:45 P.M.  AFTER THE LUNCHEON RECESS, AND THE COURT ASKED
THE WITNESS WHETHER HIS REQUEST FOR A RECESS WHILE TESTIFYING ON THE
STAND, AND BEFORE THE ANNOUNCEMENT OF THE LUNCHEON RECESS, STILL
STOOD.  THE WITNESS SAID HE HAD BEEN TO A HOSPITAL TO GET A SHOT, AND
THAT HE COULD. 

"MR. SCOTTI:  THAT HE COULD PROCEED TEMPORARILY. 

"THE COURT:  THAT HE COULD PROCEED TEMPORARILY, AND I THOUGHT THAT
EVERYONE THEN UNDERSTOOD THAT THE WITNESS HIMSELF HAD CONCLUDED THE
ISSUE BY DECLARING THAT HE WAS THEN ABLE TO PROCEED, AND CONSEQUENTLY
MADE NO FORMAL DECLARATION ON THE RECORD. 

"TO AVOID ANY POSSIBLE QUESTION ABOUT THAT I NOW DENY THE MOTION." 

A FINANCIAL INTEREST IN THE OUTCOME OF A CASE, AS IN TUMEY V. OHIO,
273 U.S. 510, WILL, OF COURSE, DISQUALIFY A JUDGE FROM SITTING.  AS
CHIEF JUSTICE TAFT SAID IN THAT CASE: 

"THE MAYOR RECEIVED FOR HIS FEES AND COSTS IN THE PRESENT CASE $12,
AND FROM SUCH COSTS UNDER THE PROHIBITION ACT FOR SEVEN MONTHS HE MADE
ABOUT $100 A MONTH, IN ADDITION TO HIS SALARY.  WE CAN NOT REGARD THE
PROSPECT OF RECEIPT OR LOSS OF SUCH AN EMOLUMENT IN EACH CASE AS A
MINUTE, REMOTE, TRIFLING OR INSIGNIFICANT INTEREST.  IT IS CERTAINLY
NOT FAIR TO EACH DEFENDANT, BROUGHT BEFORE THE MAYOR FOR THE CAREFUL
AND JUDICIAL CONSIDERATION OF HIS GUILT OR INNOCENCE, THAT THE PROSPECT
OF SUCH A LOSS BY THE MAYOR SHOULD WEIGH AGAINST HIS ACQUITTAL."  ID.,
AT 531-532. 

THE BIAS HERE IS NOT FINANCIAL BUT EMOTIONAL.  IN RE MURCHISON,
SUPRA, INVOLVED A CLOSELY RELATED QUESTION ARISING IN A STATE CASE. 
THERE THE JUDGE WHO SERVED AS THE "ONE-MAN GRAND JURY" ALSO HAD DOUBTS
ABOUT THE WAY IN WHICH A WITNESS TESTIFIED BEFORE HIM.  HE CHARGED HIM
WITH CONTEMPT FOR REFUSING TO ANSWER.  WE REVERSED THE CONVICTION,
SAYING: 

"IT WOULD BE VERY STRANGE IF OUR SYSTEM OF LAW PERMITTED A JUDGE TO
ACT AS A GRAND JURY AND THEN TRY THE VERY PERSONS ACCUSED AS A RESULT
OF HIS INVESTIGATIONS.  PERHAPS NO STATE HAS EVER FORCED A DEFENDANT TO
ACCEPT GRAND JURORS AS PROPER TRIAL JURORS TO PASS ON CHARGES GROWING
OUT OF THEIR HEARINGS.  A SINGLE 'JUDGE-GRAND JURY' IS EVEN MORE A PART
OF THE ACCUSATORY PROCESS THAN AN ORDINARY LAY GRAND JUROR.  HAVING
BEEN A PART OF THAT PROCESS A JUDGE CANNOT BE, IN THE VERY NATURE OF
THINGS, WHOLLY DISINTERESTED IN THE CONVICTION OR ACQUITTAL OF THOSE
ACCUSED.  WHILE HE WOULD NOT LIKELY HAVE ALL THE ZEAL OF A PROSECUTOR,
IT CAN CERTAINLY NOT BE SAID THAT HE WOULD HAVE NONE OF THAT ZEAL. 
FAIR TRIALS ARE TOO IMPORTANT A PART OF OUR FREE SOCIETY TO LET
PROSECUTING JUDGES BE TRIAL JUDGES OF THE CHARGES THEY PREFER."  349
U.S., AT 137. 

THE PRESENT CASE IS A STRONGER CASE FOR REVERSAL THAN IN RE
MURCHISON.  THERE THE BIAS OF THE JUDGE WAS INFERRED.  HERE IT IS
APPARENT ON THE FACE OF THE RECORD.  FOR WHEN THE WITNESS SAID "THE
COURT IS SUPPRESSING THE EVIDENCE," THE JUDGE REPLIED, "YOU ARE NOT
ONLY CONTEMPTUOUS BUT DISORDERLY AND INSOLENT."  MOREOVER, WHILE
PETITIONER WAS STILL ON THE STAND AS A WITNESS IN THE MAIN CASE, THE
JUDGE CONDEMNED HIM AS A MALINGERER AND REFUSED TO ORDER A MEDICAL
EXAMINATION.  THUS, LONG BEFORE THE CONTEMPT TRIAL - LONG BEFORE THE
CONTEMPT CHARGE HAD BEEN FILED - THE JUDGE, WHO LATER SENTENCED THE
WITNESS FOR CONTEMPT, HAD CONCLUDED - AND STATED IN SO MANY WORDS -
THAT THE WITNESS WAS "CONTEMPTUOUS."  IT IS A TRAVESTY ON AMERICAN
JUSTICE TO ALLOW A JUDGE WHO HAS ANNOUNCED HIS DECISION ON THE ISSUE OF
GUILT PRIOR TO THE TRIAL TO SIT IN JUDGMENT AT THE TRIAL. 

JUDGES ARE HUMAN; AND JUDGES CAUGHT UP IN AN ALTERCATION WITH A
WITNESS DO NOT HAVE THE OBJECTIVITY TO GIVE THAT PERSON A FAIR TRIAL. 
IN THE PRESENT CASE, THE BASIC ISSUE WAS WHETHER THE WITNESS WAS SICK
OR WHETHER HE WAS FAKING.  THE JUDGE, WHO FOUND HIM GUILTY FOR AN
OUTBURST THAT MIGHT HAVE BEEN EXCUSED COMING FROM THE LIPS OF A SICK
MAN, HAD ANNOUNCED HIS DECISION WHEN THE WITNESS ASKED TO BE EXCUSED. 
HE THEN SAID THAT THE WITNESS WAS A MALINGERER; AND HE REFUSED TO CALL
A DOCTOR. 

THIS ASPECT OF THE CASE EMPHASIZES A SECOND REASON WHY A DIFFERENT
JUDGE SHOULD HAVE TRIED THE CONTEMPT CHARGE.  THE JUDGE WHO ACCUSED THE
WITNESS OF MALINGERING WAS NOT A MEDICAL EXPERT AND HIS CONCLUSION THAT
THE WITNESS WAS FAKING, THOUGH ADMISSIBLE AS EVIDENCE, WOULD NOT BE
CONCLUSIVE.  THIS CRUCIAL FACT WAS ONE THAT THE JUDGE SHOULD NOT BE
LEFT TO DECIDE ON THE BASIS THAT HE SAW THE WITNESS AND THEREFORE COULD
BE DEPENDED UPON TO KNOW THAT THE ACCUSED HAD OPENLY RESISTED A
MARSHAL, AS IN EX PARTE TERRY, 128 U.S. 289. 

A MAN GOING ON TRIAL BEFORE THAT JUDGE IS DENIED A BASIC
CONSTITUTIONAL RIGHT - THE RIGHT TO EXAMINE AND CROSS-EXAMINE.  AS WE
SAID IN IN RE MURCHISON, SUPRA, IF THE EMOTIONALLY INVOLVED TRIAL JUDGE
TRIES THE CONTEMPT "THE RESULT WOULD BE EITHER THAT THE DEFENDANT MUST
BE DEPRIVED OF EXAMINING OR CROSS-EXAMINING HIM OR ELSE THERE WOULD BE
THE SPECTACLE OF THE TRIAL JUDGE PRESENTING TESTIMONY UPON WHICH HE
MUST FINALLY PASS IN DETERMINING THE GUILT OR INNOCENCE OF THE
DEFENDANT.  IN EITHER EVENT THE STATE WOULD HAVE THE BENEFIT OF THE
JUDGE'S PERSONAL KNOWLEDGE WHILE THE ACCUSED WOULD BE DENIED AN
EFFECTIVE OPPORTUNITY TO CROSS-EXAMINE.  THE RIGHT OF A DEFENDANT TO
EXAMINE AND CROSS-EXAMINE WITNESSES IS TOO ESSENTIAL TO A FAIR TRIAL TO
HAVE THAT RIGHT JEOPARDIZED IN SUCH A WAY."  349 U.S., AT 139. 

AN IMPARTIAL JUDGE, NOT CAUGHT UP IN THE CROSS-CURRENTS OF EMOTIONS
ENVELOPING THE CONTEMPT CHARGE, IS THE ONLY ONE WHO CAN PROTECT ALL
RIGHTS AND DETERMINE WHETHER A CONTEMPT WAS COMMITTED OR WHETHER THE
CASE IS EITHER ONE OF JUDICIAL NERVES ON EDGE OR OF JUDICIAL TYRANNY. 

FN1  THIS IS NOT A CASE OF SUMMARY CONTEMPT DURING THE COURSE OF A
TRIAL, WHERE "IMMEDIATE PUNISHMENT IS ESSENTIAL TO PREVENT
'DEMORALIZATION OF THE COURT'S AUTHORITY' BEFORE THE PUBLIC."  IN RE
OLIVER, 333 U.S. 257, 275. 

FN2  UNLIKE SACHER V. UNITED STATES, 343 U.S. 1, WHERE THE TRIAL
JUDGE AT THE END OF THE TRIAL SUMMARILY FOUND COUNSEL PARTICIPATING IN
THE TRIAL GUILTY OF CONTEMPT, THE JUDGE IN THE INSTANT CASE, FOLLOWING
THE PROCEDURE RECOMMENDED BY COOKE V. UNITED STATES, 267 U.S. 517,
ISSUED A RULE TO SHOW CAUSE WHY THE WITNESS SHOULD NOT BE HELD IN
CONTEMPT AND HELD A HEARING ON THAT CITATION. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS, JOIN, DISSENTING. 

I AGREE WITH MY BROTHER DOUGLAS THAT DUE PROCESS OF LAW REQUIRES THAT
THIS CONTEMPT BE TRIED BEFORE A DIFFERENT JUDGE. 

THIS COURT HAS RECOGNIZED THAT THE POWER OF A JUDGE TO IMPOSE
PUNISHMENT FOR CRIMINAL CONTEMPT WITHOUT NOTICE OR HEARING IS: 

"CAPABLE OF GRAVE ABUSES, AND FOR THAT REASON THE COURT HAS NEVER
GIVEN ANY ENCOURAGEMENT TO ITS EXPANSION BEYOND THE SUPPRESSION AND
PUNISHMENT OF THE COURT-DISRUPTING MISCONDUCT WHICH ALONE JUSTIFIED ITS
EXERCISE."  IN RE OLIVER, 333 U.S. 257, 274. 

THE COURT HAS ALSO "MARKED THE LIMITS OF CONTEMPT AUTHORITY IN
GENERAL AS BEING 'THE LEAST POSSIBLE POWER ADEQUATE TO THE END
PROPOSED.'"  IBID., QUOTING ANDERSON V. DUNN, 6 WHEAT.  204, 231. 

I WOULD HOLD, THEREFORE, THAT THE CONSTITUTION FORBIDS A JUDGE TO
IMPOSE PUNISHMENT FOR SUCH CONTEMPT WITHOUT NOTICE OR HEARING, EXCEPT
WHEN (1) THE CONTEMPT CREATES SUCH "'AN OPEN THREAT TO THE ORDERLY
PROCEDURE OF THE COURT  ...  THAT IF NOT INSTANTLY SUPPRESSED AND
PUNISHED, DEMORALIZATION OF THE COURT'S AUTHORITY WILL FOLLOW.'"  IN RE
OLIVER, SUPRA, AT 275, QUOTING COOKE V. UNITED STATES, 267 U.S. 517,
536, AND WHEN (2) "NO EXPLANATION COULD MITIGATE CONTEMNER'S OFFENCE OR
DISPROVE THE FACT THAT HE HAD COMMITTED SUCH CONTEMPT OF THE COURT'S
AUTHORITY AND DIGNITY AS DESERVED INSTANT PUNISHMENT."  EX PARTE TERRY,
128 U.S. 289, 310. 

THE POWER TO PUNISH IN SO SUMMARY A FASHION IS, AS THE NEW YORK COURT
OF APPEALS RECOGNIZED, FRAUGHT WITH DANGER, PARTICULARLY WHEN THE
ALLEGED CONTEMPT CONSISTS OF A CHARGE OF WRONGDOING AGAINST THE VERY
PERSON SITTING IN JUDGMENT OF THE CONTEMPT. 

MR. JUSTICE DOUGLAS HAS CONVINCINGLY DEMONSTRATED THAT THE CONTEMPT
CHARGED HERE WAS NOT SUCH AN OPEN THREAT TO THE ORDERLY PROCEDURE OF
THE COURT AS TO NECESSITATE INSTANT PUNISHMENT, THAT AN EXPLANATION OR
THE INTRODUCTION OF EVIDENCE COULD HAVE MITIGATED OR DISPROVED THE
OFFENSE, AND THAT IT CONSISTED ESSENTIALLY OF A CHARGE OF WRONGDOING
AGAINST THE VERY PERSON SITTING IN JUDGMENT OF THE CONTEMPT. 

I CONCLUDE, THEREFORE, THAT THIS CONTEMPT COULD NOT CONSTITUTIONALLY
HAVE BEEN TRIED SUMMARILY,* AND THAT IT SHOULD HAVE BEEN TRIED BEFORE A
DIFFERENT JUDGE. 

*THERE MAY WELL BE INSTANCES OF DISRUPTION WHERE THE TRIAL JUDGE
CORRECTLY FEELS THAT SOME IMMEDIATE ACTION IS NECESSARY TO RESTORE
ORDER BUT THAT A FULL, IMMEDIATE ACTION IS SOME IMMEDIATE ACTION IS
NECESSARY TO RESTORE ORDER BUT THAT A FULL, IMMEDIATE CIVIL OR CRIMINAL
CONTEMPT PROCEEDING MIGHT CAUSE UNDUE PREJUDICE AGAINST THE DEFENDANT
IN THE MAIN TRIAL.  IN ATTEMPTING TO ACCOMMODATE THESE CONFLICTING
DEMANDS, THE TRIAL JUDGE SHOULD HAVE SOME LATITUDE, LIMITED, OF COURSE,
BY THE OVERRIDING PRINCIPLE OF THE LAW OF CONTEMPTS THAT THE POWER
EXERCISED BE "THE LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED." 
ANDERSON V. DUNN, 6 WHEAT.  204, 231; IN RE OLIVER, 333 U.S. 257, 274. 

..END :














RABINOWITZ V. KENNEDY, ATTORNEY GENERAL 376 U.S. 605 


NO. 287.  ARGUED MARCH 2, 1964.  - DECIDED MARCH 30, 1964.  - 115 U.S.
APP. D.C. 210, 318 F.2D 181, AFFIRMED ON OTHER GROUNDS. 


1.  AN ATTORNEY WHO PERFORMS LEGAL SERVICES, INCLUDING THE HANDLING OF
LITIGATION, FOR A FOREIGN GOVERNMENT MUST REGISTER UNDER THE FOREIGN
AGENTS REGISTRATION ACT OF 1938, AS AMENDED.  THE WORK OF A LAWYER IN
LITIGATING FOR A FOREIGN GOVERNMENT CANNOT, WITHIN THE MEANING OF THE
EXEMPTION SECTION OF THE ACT, BE CHARACTERIZED AS ONLY "FINANCIAL OR
MERCANTILE" ACTIVITY, FOR THOSE TERMS ARE USED IN THE ACT TO DESCRIBE
CONDUCT OF AN ORDINARY PRIVATE COMMERCIAL CHARACTER.  FURTHERMORE,
SINCE THE INTEREST OF A FOREIGN GOVERNMENT IN LITIGATION, EVEN IF
RELATING TO FINANCIAL OR MERCANTILE MATTERS, CANNOT BE DEEMED ONLY
"PRIVATE AND NONPOLITICAL," AN ATTORNEY ENGAGED IN SUCH LITIGATION
CANNOT UNDER ANY CONSTRUCTION OF THE ACT QUALIFY WITHIN THE EXEMPTION

2.  WHERE PETITIONERS HAVE MADE NO ATTEMPT TO DETERMINE WHICH
QUESTIONS ON THE GOVERNMENT REGISTRATION FORM MUST BE ANSWERED AND
WHERE THE GOVERNMENT ADMITS THAT SOME OF THE QUESTIONS ARE WHOLLY OR
PARTIALLY INAPPLICABLE, THE ISSUE AS TO THE EXTENT OF THE DISCLOSURE TO
BE REQUIRED OF ATTORNEYS UNDER THE FOREIGN AGENTS REGISTRATION ACT IS
NOT RIPE FOR ADJUDICATION.  PP. 601-611. 

RABINOWITZ ET AL. V. KENNEDY, ATTORNEY GENERAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, ATTORNEYS ENGAGED IN THE GENERAL PRACTICE OF LAW,
INSTITUTED THIS DECLARATORY JUDGMENT ACTION, 28 U.S.C. SEC. 2201,
AGAINST RESPONDENT, THE ATTORNEY GENERAL OF THE UNITED STATES, IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  THE
COMPLAINT ALLEGED THAT PETITIONERS HAD BEEN: 

"RETAINED BY THE GOVERNMENT OF THE REPUBLIC OF CUBA TO REPRESENT IN
THE UNITED STATES THE REPUBLIC OF CUBA AND ITS GOVERNMENTAL AGENCIES IN
LEGAL MATTERS, INCLUDING LITIGATION, INVOLVING THE MERCANTILE AND
FINANCIAL INTERESTS OF THE REPUBLIC OF CUBA  ...  .  THE RETAINER DOES
NOT COVER ADVICE OR REPRESENTATION INVOLVING PUBLIC RELATIONS,
PROPAGANDA, LOBBYING, OR POLITICAL OR OTHER NON-LEGAL MATTERS, NOR HAVE
THE PLAINTIFFS ADVISED, REPRESENTED, OR ACTED ON BEHALF OF THE REPUBLIC
OF CUBA IN ANY SUCH MATTERS." 

THE COMPLAINT ALLEGED FURTHER THAT RESPONDENT HAD "DEMANDED THAT
PETITIONERS  ...  REGISTER WITH THE ATTORNEY GENERAL UNDER THE
PROVISIONS OF THE FOREIGN AGENTS REGISTRATION ACT OF 1938, AS
AMENDED."  THE RELIEF SOUGHT BY PETITIONERS INCLUDED A "JUDGMENT
DECLARING THAT THEIR ACTIVITIES AS LEGAL REPRESENTATIVES FOR THE
REPUBLIC OF CUBA DO NOT SUBJECT THEM TO THE REQUIREMENTS OF
REGISTRATION UNDER THE FOREIGN AGENTS REGISTRATION ACT OF 1938, AS
AMENDED  ...  ."  52 STAT. 631, AS AMENDED, 22 U.S.C. SEC. 611. 

THAT ACT REQUIRES THE REGISTRATION OF "ANY PERSON WHO ACTS OR AGREES
TO ACT  ...  AS  ...  A PUBLIC-RELATIONS COUNSEL, PUBLICITY AGENT,
INFORMATION-SERVICE EMPLOYEE, SERVANT, AGENT, REPRESENTATIVE, OR
ATTORNEY FOR A FOREIGN PRINCIPLE  ...  ."  "FOREIGN PRINCIPAL" INCLUDES
"A GOVERNMENT OF A FOREIGN COUNTRY AND A FOREIGN POLITICAL PARTY," AS
WELL AS "A PARTNERSHIP, ASSOCIATION, CORPORATION, ORGANIZATION, OR
OTHER COMBINATION OF INDIVIDUALS ORGANIZED UNDER THE LAWS OF, OR HAVING
ITS PRINCIPAL PLACE OF BUSINESS IN, A FOREIGN COUNTRY  ...  ."  THE ACT
EXEMPTS FROM REGISTRATION ANY "PERSON ENGAGING OR AGREEING TO ENGAGE
ONLY IN PRIVATE AND NONPOLITICAL FINANCIAL OR MERCANTILE ACTIVITIES IN
FURTHERANCE OF THE BONA FIDE TRADE OR COMMERCE OF SUCH FOREIGN
PRINCIPAL  ...  ." 

RESPONDENT MOVED FOR JUDGMENT ON THE PLEADINGS.  THE DISTRICT COURT
DENIED THE MOTION, BUT AT THE REQUEST OF RESPONDENT AND WITH THE
CONSENT OF PETITIONER, THE COURT CERTIFIED TO THE COURT OF APPEALS THE
"CONTROLLING QUESTION OF LAW, AS TO WHETHER INDIVIDUALS REQUESTED TO
REGISTER UNDER THE FOREIGN AGENTS REGISTRATION ACT OF 1938, AS AMENDED,
MAY HAVE THEIR RIGHTS ADJUDICATED BY A DECLARATORY JUDGMENT SUIT  ...
." 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, NOTING THAT
PETITIONERS DID NOT CHALLENGE THE CONSTITUTIONALITY OF THE FOREIGN
AGENTS REGISTRATION ACT, HELD, WITH ONE JUDGE DISSENTING, THAT THE
DOCTRINE OF SOVEREIGN IMMUNITY REQUIRED THAT THE CASE BE DISMISSED "AS
AN UNCONSENTED SUIT AGAINST THE UNITED STATES."  115 U.S. APP. D.C.
210, 212, 318 F.2D 181, 183.  WE GRANTED CERTIORARI, 375 U.S. 811. 

WE HOLD, FOR THE REASONS STATED BELOW, THAT THE FOREIGN AGENTS
REGISTRATION ACT PLAINLY AND UNQUESTIONABLY REQUIRES PETITIONERS TO
REGISTER.  SINCE WE CONCLUDE THAT THE COURT OF APPEALS WAS CORRECT IN
ORDERING THE CASE DISMISSED, BUT FOR REASONS OTHER THAN THOSE RELIED
UPON IN ITS OPINION, WE DO NOT PASS UPON THE REASONING BY WHICH THAT
COURT ARRIVED AT ITS DECISION, NOR DO WE HAVE OCCASION TO CONSIDER THE
SCOPE OF THE DECLARATORY JUDGMENT REMEDY OR THE SOVEREIGN IMMUNITY
DOCTRINE.  (FN1) 

THE FOREIGN AGENTS REGISTRATION ACT WAS FIRST ENACTED BY CONGRESS ON
JUNE 8, 1938.  IT REQUIRED AGENTS OF FOREIGN PRINCIPALS TO REGISTER
WITH THE SECRETARY OF STATE.  "AGENT OF A FOREIGN PRINCIPAL" WAS
DEFINED AS "ANY PERSON WHO ACTS OR ENGAGES OR AGREES TO ACT AS A PUBLIC
RELATIONS COUNSEL, PUBLICITY AGENT, OR AS AGENT, SERVANT,
REPRESENTATIVE, OR ATTORNEY FOR A FOREIGN PRINCIPAL ...  ."  52 STAT.
631, 632.  "FOREIGN PRINCIPAL" WAS DEFINED AS "THE GOVERNMENT OF A
FOREIGN COUNTRY, A POLITICAL PARTY OF A FOREIGN COUNTRY, A PERSON
DOMICILED ABROAD, OR ANY FOREIGN BUSINESS, PARTNERSHIP, ASSOCIATION,
CORPORATION, OR POLITICAL ORGANIZATION  ...  ."  EXEMPTED FROM THE
DEFINITION OF "AGENT OF A FOREIGN PRINCIPAL" WAS "A PERSON, OTHER THAN
A PUBLIC-RELATIONS COUNSEL, OR PUBLICITY AGENT, PERFORMING ONLY
PRIVATE, NON-POLITICAL, FINANCIAL, MERCANTILE, OR OTHER ACTIVITIES IN
FURTHERANCE OF THE BONA FIDE TRADE OR COMMERCE OF SUCH FOREIGN
PRINCIPAL."  52 STAT. 631, 632.  IN 1961, THE EXEMPTION SECTION WAS
AMENDED TO APPLY TO PERSONS "ENGAGING OR AGREEING TO ENGAGE ONLY IN
PRIVATE AND NON-POLITICAL FINANCIAL OR MERCANTILE ACTIVITIES IN
FURTHERANCE OF THE BONA FIDE TRADE OR COMMERCE OF SUCH FOREIGN
PRINCIPAL  ...  ."  (FN2)  75 STAT. 784.  THE SENATE AND HOUSE REPORTS
ACCOMPANYING THIS AMENDMENT STATE ITS PURPOSE AS FOLLOWS: 

"THE SO-CALLED COMMERCIAL EXEMPTION HAS PROVED TO BE AMBIGUOUS. 
DURING HEARINGS ON H.R. 6817 IN THE 86TH CONGRESS, A BILL IDENTICAL TO
H.R. 470, A REPRESENTATIVE OF THE DEPARTMENT OF JUSTICE TESTIFIED THAT
THE LANGUAGE CONTAINED IN THE EXEMPTION HAS LED TO CONFUSION AND
UNNECESSARILY DIFFICULT PROBLEMS IN THE ADMINISTRATION OF THE LAW. 
ARGUMENT HAS BEEN MADE THAT IF AN AGENT OF A FOREIGN PRINCIPAL MEETS
ANY ONE OF THE ABOVE-QUOTED CONDITIONS, AS DISTINGUISHED FROM MEETING
SEVERAL OR ALL OF THE REQUIREMENTS, IT NEED NOT REGISTER.  AS
REWRITTEN, THE SECTION WITH ITS PROPOSED CHANGES AND SENTENCE STRUCTURE
MAKES IT CLEAR THAT FOR AN AGENT TO QUALIFY FOR EXEMPTION FROM THE
OBLIGATION OF REGISTERING, IT MUST BE ENGAGED IN ACTIVITIES WHICH MEET
EITHER OF TWO SETS OF THREE REQUIREMENTS.  THEY MUST BE PRIVATE AND
NONPOLITICAL AND FINANCIAL, OR PRIVATE AND NONPOLITICAL AND
MERCANTILE.  IF ANY ONE OF THESE CHARACTERISTICS IS LACKING, THE AGENT
CANNOT QUALIFY FOR EXEMPTION AND THEREFORE MUST REGISTER UNDER THE
ACT."  S. REP. NO. 1061, 87TH CONG., 1ST SESS., P. 2. 

SEE ALSO H.R. REP. NO. 246, 87TH CONG., 1ST SESS. 

PETITIONERS HERE ARE ATTORNEYS WHO HAVE BEEN RETAINED "TO REPRESENT
IN THE UNITED STATES THE REPUBLIC OF CUBA AND ITS GOVERNMENTAL AGENCIES
IN LEGAL MATTERS, INCLUDING LITIGATION  ...  ."  AS AN EXAMPLE OF THEIR
"ACTIVITIES" PURSUANT TO THIS RETAINER, PETITIONERS CITE THEIR
APPEARANCE BEFORE THIS COURT IN THE RECENTLY DECIDED CASE OF BANCO
NACIONAL DE CUBA V. SABBATINE, ANTE, AT 398. 

ALTHOUGH THE WORK OF A LAWYER IN LITIGATING FOR A FOREIGN GOVERNMENT
MIGHT BE REGARDED AS "PRIVATE AND NONPOLITICAL" ACTIVITY, IT CANNOT
PROPERLY BE CHARACTERIZED AS ONLY "FINANCIAL OR MERCANTILE" ACTIVITY. 
IT IS CLEAR FROM THE STATUTE AND ITS HISTORY THAT "FINANCIAL OR
MERCANTILE" ACTIVITY WAS INTENDED TO DESCRIBE CONDUCT OF THE ORDINARY
PRIVATE COMMERCIAL CHARACTER USUALLY ASSOCIATED WITH THOSE TERMS.  SEE,
E.G., S. REP.  NO. 1783, 75TH CONG., 3D SESS.  FURTHERMORE, ALTHOUGH
THE INTEREST OF A GOVERNMENT IN LITIGATION MIGHT BE LABELED "FINANCIAL
OR MERCANTILE," IT CANNOT BE DEEMED ONLY "PRIVATE AND NONPOLITICAL." 
SINCE AN ATTORNEY MAY NOT QUALIFY FOR EXEMPTION "IF ANY ONE OF THESE
CHARACTERISTICS IS LACKING," IT WOULD BE IMPOSSIBLE TO CONCLUDE, UNDER
ANY CONSTRUCTION OF THE STATUTE, THAT PETITIONERS ARE ENGAGING "ONLY IN
PRIVATE AND NONPOLITICAL FINANCIAL OR MERCANTILE ACTIVITIES." 

WE CONCLUDE, THEREFORE, THAT PETITIONERS, ATTORNEYS REPRESENTING A
FOREIGN GOVERNMENT IN LEGAL MATTERS INCLUDING LITIGATION, ARE NOT
EXEMPT FROM REGISTERING UNDER THE FOREIGN AGENTS REGISTRATION ACT. 

IN SUPPORT OF THEIR CASE, PETITIONERS ALSO CLAIM THAT IF THEY
REGISTER THEY WOULD BE REQUIRED IN COMPLETING THE REGISTRATION FORMS TO
"MAKE PUBLIC DISCLOSURE NOT ONLY OF THEIR RELATION WITH THEIR FOREIGN
PRINCIPAL, BUT OF NUMEROUS PRIVATE, PERSONAL AND BUSINESS AFFAIRS
UNCONNECTED WITH THEIR REPRESENTATION OF THE REPUBLIC OF CUBA."  IN
CONCLUDING THAT PETITIONERS MUST REGISTER, WE DO NOT SUGGEST THAT THEY
MAY BE REQUIRED TO ANSWER ALL THE QUESTIONS IN THE REGISTRATION FORMS. 
THE GOVERNMENT SAYS THAT SOME OF THE QUESTIONS ARE "CLEARLY
INAPPLICABLE" TO PETITIONERS, THAT OTHERS MAY SATISFACTORILY BE
ANSWERED IN CONCLUSORY LANGUAGE, AND THAT OTHERS, WHILE "FRAMED IN
GENERAL TERMS," MAY SATISFACTORILY BE ANSWERED BY DISCLOSING ONLY THOSE
FACTS WHICH "BEAR A REASONABLE RELATIONSHIP TO THE REPRESENTATION OF
THE FOREIGN PRINCIPAL."  UNDER THE RULES ESTABLISHED BY THE DEPARTMENT
OF JUSTICE AND PRINTED ON THE FORMS THEMSELVES: 

"IF COMPLIANCE WITH ANY REQUIREMENT OF THE FORM APPEARS IN ANY
PARTICULAR CASE TO BE INAPPROPRIATE OR UNDULY BURDENSOME, THE
REGISTRANT MAY APPLY FOR A COMPLETE OR PARTIAL WAIVER OF THE
REQUIREMENT." 

COMPARE, 28 CFR SEC. 5.201.  SINCE PETITIONERS HAVE MADE NO ATTEMPT
TO DETERMINE WHICH QUESTIONS MUST BE ANSWERED AND HOW MUCH INFORMATION
DISCLOSED, THIS ISSUE IS NOT RIPE FOR ADJUDICATION.  SEE, E.G., ECCLES
V. PEOPLES BANK, 333 U.S. 426.  SEE GENERALLY, DAVIS, RIPENESS OF
GOVERNMENTAL ACTION FOR JUDICIAL REVIEW (PTS.  1-2), 68 HARV. L. REV.
1122, 1326 (1955). 

FOR THESE REASONS, PETITIONERS' COMPLAINT SHOULD BE DISMISSED, AND,
ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS ORDERING DISMISSAL OF
THE COMPLAINT IS AFFIRMED.  IT IS SO ORDERED. 

FN1  SEE, E.G., BORCHARD, DECLARATORY JUDGMENTS (2D ED., 1941);
BORCHARD, CHALLENGING "PENAL" STATUTES BY DECLARATORY ACTION, 52 YALE
L.J. 445 (1943); DAVIS, SOVEREIGN IMMUNITY IN SUITS AGAINST OFFICERS
FOR RELIEF OTHER THAN DAMAGES, 40 CORNELL L.Q. 3 (1954); DAVIS, SUING
THE GOVERNMENT BY SUING AN OFFICER, 29 U. OF CHI.  L. REV. 435 (1962);
JAFFE, SUITS AGAINST GOVERNMENTS AND OFFICERS: SOVEREIGN IMMUNITY, 77
HARV. L. REV. 1 (1963). 

FN2 THIS SECTION HAD PREVIOUSLY BEEN AMENDED IN 1942 TO COVER ANY
PERSON "ENGAGING OR AGREEING TO ENGAGE ONLY IN PRIVATE, NONPOLITICAL,
FINANCIAL, MERCANTILE, OR OTHER ACTIVITIES IN FURTHERANCE OF THE BONA
FIDE TRADE OR COMMERCE OF SUCH FOREIGN PRINCIPAL ...  ."  56 STAT.
254. 
..END :



VAN DUSEN, U.S. DISTRICT JUDGE V. BARRACK, ADMINISTRATRIX 376 U.S. 612 


NOS. 56 AND 80.  ARGUED JANUARY 8-9, 1964.  - DECIDED MARCH 30, 1964.  -
309 F.2D 953, REVERSED AND REMANDED. 


RESPONDENTS, PERSONAL REPRESENTATIVES OF PENNSYLVANIA DECEDENTS,
INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA 40 WRONGFUL DEATH ACTIONS ARISING FROM AN AIRPLANE
CRASH IN MASSACHUSETTS.  ACTING ON PETITIONERS' MOTION UNDER SEC.
1404(A) OF THE JUDICIAL CODE OF 1948, WHICH PROVIDES FOR TRANSFER OF
CIVIL ACTIONS FOR THE CONVENIENCE OF PARTIES AND WITNESSES, IN THE
INTEREST OF JUSTICE, TO ANY DISTRICT WHERE SUCH ACTION "MIGHT HAVE BEEN
BROUGHT," THE DISTRICT COURT ORDERED THAT THE ACTIONS BE TRANSFERRED TO
THE DISTRICT OF MASSACHUSETTS, WHERE OVER 100 OTHER ACTIONS ARISING OUT
OF THE SAME DISASTER ARE PENDING.  THE COURT OF APPEALS, INTERPRETING
SEC. 1404(A) AND RELYING ON RULE 17(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, VACATED THE TRANSFER ORDER, HOLDING THAT IT COULD BE GRANTED
ONLY IF AT THE TIME THE ACTIONS WERE FILED RESPONDENTS WERE PERSONAL
REPRESENTATIVES QUALIFIED TO SUE IN MASSACHUSETTS COURTS.  HELD: 

1.  IN SEC. 1404(A) THE PHRASE "WHERE IT MIGHT HAVE BEEN BROUGHT"
MUST BE CONSTRUED WITH REFERENCE TO FEDERAL VENUE LAWS SETTING FORTH
THE DISTRICTS WHERE SUCH ACTIONS "MAY BE BROUGHT" AND NOT WITH
REFERENCE TO THE LAWS, SUCH AS THOSE RELATING TO DAMAGES AND THE
CAPACITY OF PERSONAL REPRESENTATIVES TO SUE, OF THE STATE WHERE THE
TRANSFEREE DISTRICT COURT IS LOCATED.  PP. 616-626. 

2.  IN A CASE SUCH AS THIS WHERE THE ACTIONS WERE PROPERLY BROUGHT IN
THE TRANSFEROR DISTRICT COURT AND WHERE DEFENDANTS SEEK TRANSFER UNDER
SEC. 1404(A), THE CHANGE OF VENUE SHOULD NOT BE ACCOMPANIED BY A CHANGE
IN THE GOVERNING STATE LAWS.  PP. 626-640. 

3.  WHERE A SEC. 1404(A) TRANSFER IS HELD NOT TO EFFECT A CHANGE OF
STATE LAW BUT ESSENTIALLY ONLY TO AUTHORIZE A CHANGE OF FEDERAL
COURTROOMS, THE PROVISION IN RULE 17(B) THAT THE CAPACITY OF PERSONAL
REPRESENTATIVES TO SUE OR BE SUED SHALL BE DETERMINED BY THE LAW OF THE
STATE "IN WHICH THE DISTRICT COURT IS HELD" SHOULD SIMILARLY BE
INTERPRETED TO REFER TO THE LAW OF THE STATE IN WHICH THE TRANSFEROR
DISTRICT COURT IS LOCATED.  PP. 640-643. 

4.  THE GENERAL CRITERIA OF CONVENIENCE AND FAIRNESS OF SEC. 1404(A)
INCLUDE THAT WITNESSES MAY BE HEARD, THE EVIDENCE WHICH WILL BE
RELEVANT AND IMPORTANT UNDER THE APPLICABLE STATE LAWS, AND, ALSO,
CONSIDERATION OF THE JUDICIAL FAMILIARITY WITH THE GOVERNING STATE LAWS
AND THE RELATIVE EASE AND PRACTICALITY OF TRYING THE ACTIONS IN THE
PROPOSED TRANSFEREE DISTRICT COURT.  PP. 643-646. 

VAN DUSEN, U.S. DISTRICT JUDGE ET AL. V. BARRACK, ADMINISTRATRIX, ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE CONSTRUCTION AND APPLICATION OF SEC. 1404(A)
OF THE JUDICIAL CODE OF 1948.  SECTION 1404(A), WHICH ALLOWS A "CHANGE
OF VENUE" WITHIN THE FEDERAL JUDICIAL SYSTEM, PROVIDES THAT:  "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."  28 U.S.C. SEC. 1404(A). 

THE FACTS, WHICH NEED BUT BRIEF STATEMENT HERE, REVEAL THAT THE
DISPUTED CHANGE OF VENUE IS SET AGAINST THE BACKGROUND OF AN ALLEGED
MASS TORT.  ON OCTOBER 4, 1960, SHORTLY AFTER DEPARTING FROM A BOSTON
AIRPORT, A COMMERCIAL AIRLINER, SCHEDULED TO FLY FROM BOSTON TO
PHILADELPHIA, PLUNGED INTO BOSTON HARBOR.  AS A RESULT OF THE CRASH,
OVER 150 ACTIONS FOR PERSONAL INJURY AND WRONGFUL DEATH HAVE BEEN
INSTITUTED AGAINST THE AIRLINE, VARIOUS MANUFACTURERS, THE UNITED
STATES, AND, IN SOME CASES, THE MASSACHUSETTS PORT AUTHORITY.  IN MOST
OF THESE ACTIONS THE PLAINTIFFS HAVE ALLEGED THAT THE CRASH RESULTED
FROM THE DEFENDANTS' NEGLIGENCE IN PERMITTING THE AIRCRAFT'S ENGINES TO
INGEST SOME BIRDS.  MORE THAN 100 ACTIONS WERE BROUGHT IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, AND MORE THAN
45 ACTIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

THE PRESENT CASE CONCERNS 40 OF THE WRONGFUL DEATH ACTIONS BROUGHT IN
THE EASTERN DISTRICT OF PENNSYLVANIA BY PERSONAL REPRESENTATIVES OF
VICTIMS OF THE CRASH.  (FN1)  THE DEFENDANTS, PETITIONERS IN THIS
COURT, MOVED UNDER SEC. 1404(A) TO TRANSFER THESE ACTIONS TO THE
DISTRICT OF MASSACHUSETTS, WHERE IT WAS ALLEGED THAT MOST OF THE
WITNESSES RESIDED AND WHERE OVER 100 OTHER ACTIONS ARE PENDING.  THE
DISTRICT COURT GRANTED THE MOTION, HOLDING THAT THE TRANSFER WAS
JUSTIFIED REGARDLESS OF WHETHER THE TRANSFERRED ACTIONS WOULD BE
GOVERNED BY THE LAWS AND CHOICE-OF-LAW RULES OF PENNSYLVANIA AND
MASSACHUSETTS.  204 F. SUPP. 426.  THE DISTRICT COURT ALSO SPECIFICALLY
HELD THAT TRANSFER WAS NOT PRECLUDED BY THE FACT THAT THE PLAINTIFFS
HAD NOT QUALIFIED UNDER MASSACHUSETTS LAW TO SUE AS REPRESENTATIVES OF
THE DECEDENTS.  THE PLAINTIFFS, RESPONDENTS IN THIS COURT, SOUGHT A
WRIT OF MANDAMUS FROM THE COURT OF APPEALS AND SUCCESSFULLY CONTENDED
THAT THE DISTRICT COURT ERRED AND SHOULD VACATE ITS ORDER OF TRANSFER. 
309 F.2D 953.  THE COURT OF APPEALS HELD THAT A SEC. 1404(A) TRANSFER
COULD BE GRANTED ONLY IF AT THE TIME THE SUITS WERE BROUGHT, THE
PLAINTIFFS HAD QUALIFIED TO SUE IN MASSACHUSETTS, THE STATE OF THE
TRANSFEREE DISTRICT COURT.  THE COURT OF APPEALS RELIED IN PART UPON
ITS INTERPRETATION OF RULE 17(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  (FN2) 

WE GRANTED CERTIORARI TO REVIEW IMPORTANT QUESTIONS CONCERNING THE
CONSTRUCTION AND OPERATION OF SEC. 1404(A).  372 U.S. 964.  FOR REASONS
TO BE STATED BELOW, WE HOLD THAT THE JUDGMENT OF THE COURT OF APPEALS
MUST BE REVERSED, THAT BOTH THE COURT OF APPEALS AND THE DISTRICT COURT
ERRED IN THEIR FUNDAMENTAL ASSUMPTIONS REGARDING THE STATE LAW TO BE
APPLIED TO AN ACTION TRANSFERRED UNDER SEC. 1404(A), AND THAT
ACCORDINGLY THE CASE MUST BE REMANDED TO THE DISTRICT COURT.  (FN3)

          I. WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT." 

SUITS TRIED IN THE FEDERAL SYSTEM AT THE PLACE CALLED FOR IN THE
PARTICULAR CASE BY CONSIDERATIONS OF CONVENIENCE AND JUSTICE.  (FN4)
THUS, AS THE COURT RECOGNIZED IN CONTINENTAL GRAIN CO. V. BARGE FBL
585, 364 U.S. 19, 26, 27, THE PURPOSE OF THE SECTION IS TO PREVENT THE
WASTE "OF TIME, ENERGY AND MONEY" AND "TO PROTECT LITIGANTS, WITNESSES
AND THE PUBLIC AGAINST UNNECESSARY INCONVENIENCE AND EXPENSE  ...  ." 
TO THIS END IT EMPOWERS A DISTRICT COURT TO TRANSFER "ANY CIVIL ACTION"
(FN5) TO ANOTHER DISTRICT COURT IF THE TRANSFER IS WARRANTED BY THE
CONVENIENCE OF PARTIES AND WITNESSES AND PROMOTES THE INTEREST OF
JUSTICE.  THIS TRANSFER POWER IS, HOWEVER, EXPRESSLY LIMITED BY THE
FINAL CLAUSE OF SEC. 1404(A) RESTRICTING TRANSFER TO THOSE FEDERAL
DISTRICTS IN WHICH THE ACTION "MIGHT HAVE BEEN BROUGHT."  ALTHOUGH IN
THE PRESENT CASE THE PLAINTIFFS WERE QUALIFIED TO BRING SUIT AS
PERSONAL REPRESENTATIVES UNDER PENNSYLVANIA LAW (THE LAW OF THE STATE
OF THE TRANSFEROR FEDERAL COURT), THE COURT OF APPEALS RULED THAT THE
DEFENDANTS' TRANSFER MOTION MUST BE DENIED BECAUSE AT THE TIME THE
SUITS WERE BROUGHT IN PENNSYLVANIA (THE TRANSFEROR FORUM) THE
COMPLAINANTS HAD NOT OBTAINED THE APPOINTMENTS REQUISITE TO INITIATE
SUCH ACTIONS IN MASSACHUSETTS (THE TRANSFEREE FORUM).  AT THE OUTSET,
THEREFORE, WE MUST CONSIDER WHETHER THE INCAPACITY OF THE PLAINTIFFS AT
THE TIME THEY COMMENCED THEIR ACTIONS IN THE TRANSFEROR FORUM TO SUE
UNDER THE STATE LAW OF THE TRANSFEREE FORUM RENDERS THE LATTER FORUM
IMPERMISSIBLE UNDER THE "MIGHT-HAVE-BEEN-BROUGHT" LIMITATION. 

THERE IS NO QUESTION CONCERNING THE PROPRIETY EITHER OF VENUE OR OF
JURISDICTION IN THE DISTRICT OF MASSACHUSETTS, THE PROPOSED TRANSFEREE
FORUM.  (FN6)  THE COURT OF APPEALS CONCEDED THAT IT WAS "QUITE LIKELY"
THAT THE PLAINTIFFS COULD HAVE OBTAINED ANCILLARY APPOINTMENT IN
MASSACHUSETTS BUT HELD THIS LEGALLY IRRELEVANT.  309 F.2D, AT 957-958. 
IN CONCLUDING THAT THE TRANSFER COULD NOT BE GRANTED, THE COURT OF
APPEALS RELIED UPON HOFFMAN V. BLASKI, 363 U.S. 335, AS ESTABLISHING
THAT "UNLESS THE PLAINTIFF HAD AN UNQUALIFIED RIGHT TO BRING SUIT IN
THE TRANSFEREE FORUM AT THE TIME HE FILED HIS ORIGINAL COMPLAINT,
TRANSFER TO THAT DISTRICT IS NOT AUTHORIZED BY SEC. 1404(A)."  309
F.2D, AT 957.  THE COURT FOUND THE ANALOGY TO HOFFMAN PARTICULARLY
PERSUASIVE BECAUSE IT COULD "PERCEIVE NO BASIS IN EITHER LOGIC OR
POLICY FOR MAKING ANY DISTINCTION BETWEEN THE ABSENCE OF VENUE IN THE
TRANSFEREE FORUM AND A PROSPECTIVE PLAINTIFF'S LACK OF CAPACITY TO SUE
THERE."  IBID.  IN ADDITION, THE COURT HELD THAT THE TRANSFER MUST BE
DENIED BECAUSE IN ACTIONS BY PERSONAL REPRESENTATIVES "RULE 17(B), FED.
R. CIV. P., REQUIRES THE DISTRICT COURT TO REFER TO THE LAW OF THE
STATE IN WHICH IT SITS TO DETERMINE CAPACITY TO SUE."  (FN7)  ID., AT
958. 

THE DEFENDANTS CONTEND THAT THE CONCLUDING PHRASE OF SEC. 1404(A) -
"WHERE IT MIGHT HAVE BEEN BROUGHT" - REFERS TO THOSE DISTRICTS IN WHICH
CONGRESS HAS PROVIDED BY ITS VENUE STATUTES THAT THE ACTION "MAY BE
BROUGHT."  APPLYING THIS CRITERION, THE DEFENDANTS ARGUE THAT THE
POSTURE OF THE CASE UNDER STATE LAW IS IRRELEVANT.  THEY CONTEND THAT
HOFFMAN V. BLASKI, SUPRA, DID NOT RULE THAT THE LIMITATIONS OF STATE
LAW WERE RELEVANT TO DETERMINING WHERE THE ACTION "MIGHT HAVE BEEN
BROUGHT" BUT RULED ONLY THAT THE REQUIREMENT PROHIBITED TRANSFER WHERE
THE PROPOSED TRANSFEREE FORUM LACKED BOTH VENUE OF THE ACTION AND POWER
TO COMMAND JURISDICTION OVER THE DEFENDANTS WHEN THE SUITS WERE
ORIGINALLY INSTITUTED.  THE DEFENDANTS CONTEND FURTHER THAT THE
DECISION BELOW IS CONTRARY TO THE POLICY UNDERLYING HOFFMAN, SINCE THIS
DECISION EFFECTIVELY ENABLES A PLAINTIFF, SIMPLY BY FAILING TO PROCEED
IN OTHER POTENTIAL FORUMS AND QUALIFY AS A PERSONAL REPRESENTATIVE, TO
RESTRICT AND FRUSTRATE EFFORTS TO HAVE THE ACTION TRANSFERRED TO A
FEDERAL FORUM WHICH WOULD BE FAR MORE CONVENIENT AND APPROPRIATE. 
FINALLY, WITH REGARD TO THE CONCLUSION THAT RULE 17(B) PRECLUDES
TRANSFER, THE DEFENDANTS ARGUE THAT UNDER SEC. 1404(A) THE EFFECT OF
THE RULE, LIKE THE EXISTENCE OF DIFFERENT STATE LAWS IN THE TRANSFEREE
FORUM, IS NOT RELEVANT TO A DETERMINATION OF WHERE, AS INDICATED BY
FEDERAL VENUE LAWS, THE ACTION "MIGHT HAVE BEEN BROUGHT."  THE
DEFENDANTS CONCLUDE THAT THE EFFECT OF TRANSFER UPON POTENTIAL STATE
LAW DEFENSES AND UPON THE STATE LAW APPLIED UNDER RULE 17(B) SHOULD
INSTEAD BE CONSIDERED AND ASSESSED WITH REFERENCE TO THE CRITERION THAT
THE TRANSFER BE "IN THE INTEREST OF JUSTICE."  SEE INFRA, PP. 624-626,
640-643. 

THE PLAINTIFFS RESPOND EMPHASIZING THAT THEY ARE "PENNSYLVANIA
FIDUCIARIES REPRESENTING THE ESTATES OF PENNSYLVANIA DECEDENTS."  THEY
WERE NOT AND ARE NOT QUALIFIED TO BRING THESE OR RELATED ACTIONS IN
MASSACHUSETTS AND THEIR LACK OF CAPACITY WOULD, UNDER MASSACHUSETTS
LAW, CONSTITUTE "AN ABSOLUTE DEFENSE."  THE PLAINTIFFS CONTEND THAT
HOFFMAN V. BLASKI ESTABLISHED THAT TRANSFER MUST BE DENIED UNLESS, AT
THE TIME THE ACTION WAS BROUGHT, THE COMPLAINANT HAD AN INDEPENDENT
RIGHT TO INSTITUTE THAT ACTION IN THE TRANSFEREE FORUM REGARDLESS OF
THE FACT THAT THE DEFENDANT IN SEEKING TRANSFER MIGHT EXPRESSLY OR
IMPLICITLY AGREE TO VENUE AND JURISDICTION IN THE TRANSFEREE FORUM AND
WAIVE DEFENSES THAT WOULD HAVE BEEN AVAILABLE ONLY UNDER THE LAW OF THE
TRANSFEREE STATE.  IN ADDITION, THE PLAINTIFFS ARGUE, EVEN IF THE
LIMITING PHRASE "WHERE-IT-MIGHT-HAVE-BEEN-BROUGHT" RELATES ONLY TO
FEDERAL VENUE LAWS, RULE 17(B) EXPRESSLY PROVIDES THAT THE CAPACITY OF
A FIDUCIARY TO SUE IN A UNITED STATES DISTRICT COURT SHALL BE
DETERMINED "BY THE LAW OF THE STATE IN WHICH THE DISTRICT COURT IS
HELD."  THE PLAINTIFFS UNDERSTAND THE LANGUAGE OF THE RULE TO REFER TO
THE LAW OF THE STATE IN WHICH THE TRANSFEREE COURT IS HELD RATHER THAN
TO THE LAW OF THE STATE OF THE TRANSFEROR COURT.  THEY CONCLUDE THAT
SINCE THEY "WERE NOT QUALIFIED TO SUE IN MASSACHUSETTS (THE STATE IN
WHICH THE TRANSFEREE COURT WOULD BE HELD), THEY WERE NOT QUALIFIED TO
SUE IN THE UNITED STATES DISTRICT COURT IN MASSACHUSETTS AND THE
DISTRICT OF MASSACHUSETTS WAS NOT A DISTRICT IN WHICH THESE ACTIONS
'MIGHT HAVE BEEN BROUGHT.'" 

A. IN HOFFMAN V. BLASKI THIS COURT FIRST CONSIDERED THE NATURE OF THE
LIMITATION IMPOSED BY THE WORDS "WHERE IT MIGHT HAVE BEEN BROUGHT." 
THE PLAINTIFF OPPOSED THE DEFENDANT'S MOTION TO TRANSFER ON THE GROUND
THAT THE PROPOSED TRANSFEREE FORUM LACKED BOTH "VENUE OVER THE ACTION
AND ABILITY TO COMMAND JURISDICTION OVER THE  ...  " DEFENDANT.  (FN8)
363 U.S., AT 337.  THE QUESTION, AS STATED BY THE COURT, WAS "WHETHER A
DISTRICT COURT, IN WHICH A CIVIL ACTION HAS BEEN PROPERLY BROUGHT, IS
EMPOWERED BY SEC. 1404(A) TO TRANSFER THE ACTION, ON THE MOTION OF THE
DEFENDANT, TO A DISTRICT IN WHICH THE PLAINTIFF DID NOT HAVE A RIGHT TO
BRING IT."  ID., AT 336.  THE DEFENDANT EMPHASIZED THAT "VENUE, LIKE
JURISDICTION OVER THE PERSON, MAY BE WAIVED."  ID., AT 343.  THIS COURT
HELD THAT, DESPITE THE DEFENDANT'S WAIVERS OR CONSENT, A FORUM WHICH
HAD BEEN IMPROPER FOR BOTH VENUE AND SERVICE OF PROCESS WAS NOT A FORUM
WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT."  (FN9) 

IN THE PRESENT CASE THE COURT OF APPEALS CONCLUDED THAT TRANSFER
COULD NOT BE GRANTED BECAUSE HERE, AS IN HOFFMAN V. BLASKI, THE
PLAINTIFFS DID NOT HAVE AN "INDEPENDENT" OR "UNQUALIFIED" RIGHT TO
BRING THE ACTIONS IN THE TRANSFEREE FORUM.  (FN10)  THE PROPRIETY OF
THIS ANALOGY TO HOFFMAN TURNS, HOWEVER, ON THE VALIDITY OF THE
ASSUMPTION THAT THE "WHERE-IT-MIGHT-HAVE-BEEN-BROUGHT" CLAUSE REFERS
NOT ONLY TO FEDERAL VENUE STATUTES BUT ALSO TO THE LAWS APPLIED IN THE
STATE OF THE TRANSFEREE FORUM.  IT MUST BE NOTED THAT THE INSTANT CASE,
UNLIKE HOFFMAN, INVOLVES A MOTION TO TRANSFER TO A DISTRICT IN WHICH
BOTH VENUE AND JURISDICTION ARE PROPER.  THIS DIFFERENCE PLAINLY
DEMONSTRATES THAT THE COURT OF APPEALS EXTENDED THE HOFFMAN DECISION
AND INCREASED THE RESTRICTIONS ON TRANSFERS TO CONVENIENT FEDERAL
FORUMS.  THE ISSUE HERE IS NOT THAT PRESENTED IN HOFFMAN BUT INSTEAD IS
WHETHER THE LIMITING WORDS OF SEC. 1404(A) PREVENT A CHANGE OF VENUE
WITHIN THE FEDERAL SYSTEM BECAUSE, UNDER THE LAW OF THE STATE OF THE
TRANSFEREE FORUM, THE PLAINTIFF WAS NOT QUALIFIED TO SUE OR MIGHT
OTHERWISE BE FRUSTRATED OR PREJUDICED IN PURSUING HIS ACTION. 

WE CANNOT AGREE THAT THE FINAL CLAUSE OF SEC. 1404(A) WAS INTENDED TO
RESTRICT THE AVAILABILITY OF CONVENIENT FEDERAL FORUMS BY REFERRING TO
STATE-LAW RULES, SUCH AS THOSE CONCERNING CAPACITY TO SUE, WHICH WOULD
HAVE APPLIED IF THE ACTION HAD ORIGINALLY BEEN INSTITUTED IN THE
TRANSFEREE FEDERAL COURT.  SEVERAL CONSIDERATIONS COMPEL THIS
CONCLUSION.  FIRST, IF THE CONCLUDING CLAUSE IS CONSIDERED AS AN
INDEPENDENT ENTITY AND PERUSED FOR ITS PLAIN MEANING, IT SEEMS CLEAR
THAT THE MOST OBVIOUS REFERENTS OF THE WORDS ARE FOUND IN THEIR
IMMEDIATE STATUTORY CONTEXT.  (FN11)  SECTION 1404(A) WAS ENACTED AS
PART OF CHAPTER 87 OF PART IV OF THE JUDICIAL CODE OF 1948.  THAT
CHAPTER IS DESIGNATED "DISTRICT COURTS; VENUE."  THE CHAPTER ITSELF IS
IN THAT PART OF THE CODE DEALING GENERALLY WITH "JURISDICTION AND
VENUE."  IN THE IMMEDIATE CHAPTER, WHICH INCLUDES SECS. 1391-1406, THE
PHRASE "MAY BE BROUGHT" RECURS AT LEAST 10 TIMES (FN12) AND THE PHRASE
"MAY BE PROSECUTED" AT LEAST 8 TIMES.  (FN13)  THE STATUTORY CONTEXT IS
THUS PERSUASIVE EVIDENCE THAT THE "MIGHT-HAVE-BEEN-BROUGHT" LANGUAGE OF
SEC. 1404(A) PLAINLY REFERS TO THE SIMILAR WORDING IN THE RELATED
FEDERAL STATUTES AND NOT DIRECTLY TO THE LAWS OF THE STATE OF THE
TRANSFEREE FORUM. 

SECONDLY, IT SHOULD BE ASKED WHETHER THE PURPOSES OF SEC. 1404(A)
WARRANT A BROAD OR GENEROUS CONSTRUCTION OF THE LIMITING CLAUSE.  THE
ANSWER, WE THINK, IS QUITE EVIDENT.  AS MR. JUSTICE BLACK SAID,
SPEAKING FOR THE COURT IN CONTINENTAL GRAIN CO. V. BARGE FBL-585, 364
U.S., AT 26:  "THE IDEA BEHIND SEC. 1404(A) IS THAT WHERE A 'CIVIL
ACTION' TO VINDICATE A WRONG - HOWEVER BROUGHT IN A COURT - PRESENTS
ISSUES AND REQUIRES WITNESSES THAT MAKE ONE DISTRICT COURT MORE
CONVENIENT THAN ANOTHER, THE TRIAL JUDGE CAN, AFTER FINDINGS, TRANSFER
THE WHOLE ACTION TO THE MORE CONVENIENT COURT."  THIS REMEDIAL PURPOSE
THE INDIVIDUALIZED, CASE-BY-CASE CONSIDERATION OF CONVENIENCE AND
FAIRNESS - MILITATES AGAINST RESTRICTING THE NUMBER OF PERMISSIBLE
FORUMS WITHIN THE FEDERAL SYSTEM.  (FN14) THERE IS NO VALID REASON FOR
READING THE WORDS "WHERE IT MIGHT HAVE BEEN BROUGHT" TO NARROW THE
RANGE OF PERMISSIBLE FEDERAL FORUMS BEYOND THOSE PERMITTED BY FEDERAL
VENUE STATUTES WHICH, AFTER ALL, ARE GENERALIZED ATTEMPTS TO PROMOTE
THE SAME GOALS OF CONVENIENCE AND FAIRNESS. 

FINALLY, IN CONSTRUING SEC. 1404(A) WE SHOULD CONSIDER WHETHER A
SUGGESTED INTERPRETATION WOULD DISCRIMINATORILY ENABLE PARTIES OPPOSED
TO TRANSFER, BY MEANS OF THEIR OWN ACTS OR OMISSIONS, TO PREVENT A
TRANSFER OTHERWISE PROPER AND WARRANTED BY CONVENIENCE AND JUSTICE.  IN
CONTINENTAL GRAIN CO. V. BARGE FBL-585, SUPRA, THE PLAINTIFF, HAVING
JOINED IN A SINGLE COMPLAINT BOTH IN REM AND IN PERSONAM DAMAGE CLAIMS,
OPPOSED TRANSFER TO A CONVENIENT FORUM ON THE GROUND THAT THE IN REM
CLAIM COULD NOT HAVE BEEN BROUGHT IN THE TRANSFEREE FORUM.  (FN15)  IN
APPROVING THE TRANSFER ORDER, THIS COURT OBSERVED THAT FAILURE TO ADOPT
A "COMMON-SENSE APPROACH  ...  WOULD PRACTICALLY SCUTTLE THE FORUM NON
CONVENIENS STATUTE SO FAR AS ADMIRALTY ACTIONS ARE CONCERNED.  ALL A
PLAINTIFF WOULD NEED TO DO TO ESCAPE FROM IT ENTIRELY WOULD BE TO BRING
HIS ACTION AGAINST BOTH THE OWNER AND THE SHIP, AS WAS DONE HERE." 
ID., AT 24-25.  THE CASE AT BAR PRESENTS A SIMILAR SITUATION.  THE
COURT OF APPEALS' DECISION WOULD GRANT PERSONAL REPRESENTATIVES
BRINGING WRONGFUL-DEATH ACTIONS THE POWER UNILATERALLY TO REDUCE THE
NUMBER OF PERMISSIBLE FEDERAL FORUMS SIMPLY BY REFRAINING FROM
QUALIFYING AS REPRESENTATIVES IN STATES OTHER THAN THE ONE IN WHICH
THEY WISHED TO LITIGATE.  THE EXTENT OF THAT POWER IS GRAPHICALLY
ILLUSTRATED BY THE LAWS OF THE AMERICAN JURISDICTIONS, THE VAST
MAJORITY OF WHICH REQUIRE THAT, AS A CONDITION OF QUALIFYING TO BRING
SUIT, A FOREIGN EXECUTOR OR REPRESENTATIVE MUST OBTAIN ANCILLARY
APPOINTMENT OR PERFORM SOME PRELIMINARY ACT.  (FN16)  THE POSSIBILITIES
THUS SUGGESTED BY THE FACTS OF THE PRESENT CASE AMPLY DEMONSTRATE THAT
THE LIMITING PHRASE OF SEC. 1404(A) SHOULD BE CONSTRUED TO PREVENT
PARTIES WHO ARE OPPOSED TO A CHANGE OF VENUE FROM DEFEATING A TRANSFER
WHICH, BUT FOR THEIR OWN DELIBERATE ACTS OR OMISSIONS, WOULD BE PROPER,
CONVENIENT AND JUST.  THE POWER TO DEFEAT A TRANSFER TO THE CONVENIENT
FEDERAL FORUM SHOULD DERIVE FROM RIGHTS AND PRIVILEGES CONFERRED BY
FEDERAL LAW AND NOT FROM THE DELIBERATE CONDUCT OF A PARTY FAVORING
TRIAL IN AN INCONVENIENT FORUM. 

IN SUMMARY, THEN, WE HOLD THAT THE WORDS "WHERE IT MIGHT HAVE BEEN
BROUGHT" MUST BE CONSTRUED WITH REFERENCE TO THE FEDERAL LAWS
DELIMITING THE DISTRICTS IN WHICH SUCH AN ACTION "MAY BE BROUGHT" AND
NOT WITH REFERENCE TO LAWS OF THE TRANSFEREE STATE CONCERNING THE
CAPACITY OF FIDUCIARIES TO BRING SUIT. 

B. THE COURT OF APPEALS, IN REVERSING THE DISTRICT COURT, RELIED IN
PART UPON RULE 17(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  THE
RELEVANT PORTION OF THE RULE PROVIDES THAT THE CAPACITY OF PERSONAL
REPRESENTATIVES "TO SUE OR BE SUED SHALL BE DETERMINED BY THE LAW OF
THE STATE IN WHICH THE DISTRICT COURT IS HELD."  (FN11)  IN OUR VIEW
THE "WHERE-IT-MIGHT-HAVE-BEEN-BROUGHT" CLAUSE DOES NOT REFER TO THIS
RULE AND THE EFFECT OF THE RULE, THEREFORE, RAISES A SEPARATE
QUESTION.  THIS CONCLUSION DOES NOT, HOWEVER, ESTABLISH THAT RULE
17(B), IF APPLIED AS INTERPRETED BY THE COURT OF APPEALS, WOULD NOT
PRECLUDE THE REQUESTED TRANSFER.  THE RELIANCE PLACED ON RULE 17(B)
NECESSARILY ASSUMES THAT ITS LANGUAGE - WHICH IS NOT FREE FROM
AMBIGUITY - REQUIRES THE APPLICATION OF THE LAW OF THE STATE OF THE
TRANSFEREE DISTRICT COURT RATHER THAN THAT OF THE TRANSFEROR DISTRICT
COURT.  (FN18)  ON THIS ASSUMPTION, THE DEFENDANTS IN THE PRESENT CASE,
AFTER A TRANSFER TO MASSACHUSETTS, WOULD BE ENTITLED TO RAISE THE
DEFENSE OF INCAPACITY UNDER MASSACHUSETTS LAW AND THEREBY DEFEAT THE
ACTIONS.  THUS A SEC. 1404(A) TRANSFER MIGHT RESULT IN A PREJUDICIAL
CHANGE IN THE APPLICABLE STATE LAW.  THIS POSSIBILITY MAKES IT
APPARENT, THAT, ALTHOUGH RULE 17(B) MAY BE IRRELEVANT TO A
DETERMINATION OF WHERE AN ACTION "MIGHT HAVE BEEN BROUGHT," THE EFFECT
OF THE RULE MAY NECESSARILY RENDER A CHANGE OF VENUE AGAINST THE
"INTEREST OF JUSTICE." 

ALTHOUGH THE COURT OF APPEALS SPECIFICALLY RELIED ON RULE 17(B), IN
OUR OPINION THE UNDERLYING AND FUNDAMENTAL QUESTION IS WHETHER, IN A
CASE SUCH AS THE PRESENT, A CHANGE OF VENUE WITHIN THE FEDERAL SYSTEM
IS TO BE ACCOMPANIED BY A CHANGE IN THE APPLICABLE STATE LAW.  (FN19)
WHENEVER THE LAW OF THE TRANSFEREE STATE SIGNIFICANTLY DIFFERS FROM
THAT OF THE TRANSFEROR STATE - WHETHER THAT DIFFERENCE RELATES TO
CAPACITY TO SUE, STATUTES OF LIMITATIONS, OR "SUBSTANTIVE" RULES OF
LIABILITY - IT BECOMES NECESSARY TO CONSIDER WHAT BEARING A CHANGE OF
VENUE, IF ACCOMPANIED BY A CHANGE IN STATE LAW, WOULD HAVE ON "THE
INTEREST OF JUSTICE."  THIS FUNDAMENTAL QUESTION UNDERLIES THE PROBLEM
OF THE INTERPRETATION OF THE WORDS OF RULE 17(B) AND REQUIRES A
DETERMINATION OF WHETHER THE EXISTENCE OF DIFFERING STATE LAWS WOULD
NECESSARILY RENDER A TRANSFER AGAINST "THE INTEREST OF JUSTICE."  IN
VIEW OF THE FACTS OF THIS CASE AND THEIR BEARING ON THIS BASIC
QUESTION, WE MUST CONSIDER FIRST, INSOFAR AS IS RELEVANT, THE
RELATIONSHIP BETWEEN A CHANGE OF VENUE UNDER SEC. 1404(A) AND THE
APPLICABLE STATE LAW. 

II.  "THE INTEREST OF JUSTICE":  EFFECT OF A CHANGE OF VENUE UPON
APPLICABLE STATE LAW. 

A. THE PLAINTIFFS CONTEND THAT THE CHANGE OF VENUE ORDERED BY THE
DISTRICT COURT WAS NECESSARILY PRECLUDED BY THE LIKELIHOOD THAT IT
WOULD BE ACCOMPANIED BY A HIGHLY PREJUDICIAL CHANGE IN THE APPLICABLE
STATE LAW.  THE PREJUDICE ALLEGED IS NOT LIMITED TO THAT WHICH MIGHT
FLOW FROM THE MASSACHUSETTS LAWS GOVERNING CAPACITY TO SUE.  INDEED,
THE PLAINTIFFS EMPHASIZE THE LIKELIHOOD THAT THE DEFENDANTS'"ULTIMATE
REASON FOR SEEKING TRANSFER IS TO MOVE TO A FORUM WHERE RECOVERIES FOR
WRONGFUL DEATH ARE RESTRICTED TO SHARPLY LIMITED PUNITIVE DAMAGES
RATHER THAN COMPENSATION FOR THE LOSS SUFFERED."  (FN20)  IT IS ARGUED
THAT PENNSYLVANIA CHOICE-OF-LAW RULES WOULD RESULT IN THE APPLICATION
OF LAWS SUBSTANTIALLY DIFFERENT FROM THOSE THAT WOULD BE APPLIED BY
COURTS SITTING IN MASSACHUSETTS.  THE DISTRICT COURT HELD, HOWEVER,
THAT TRANSFER COULD BE ORDERED REGARDLESS OF THE STATE LAWS AND CHOICE
OF-LAW RULES TO BE APPLIED IN THE TRANSFEREE FORUM AND REGARDLESS OF
THE POSSIBILITY THAT THE LAWS APPLICABLE IN THE TRANSFEROR STATE WOULD
SIGNIFICANTLY DIFFER FROM THOSE APPLICABLE IN THE TRANSFEREE STATE. 
THIS RULING ASSUMED THAT TRANSFER TO A MORE CONVENIENT FORUM MAY BE
GRANTED ON A DEFENDANT'S MOTION EVEN THOUGH THAT TRANSFER WOULD
SERIOUSLY PREJUDICE THE PLAINTIFF'S LEGAL CLAIM.  IF THIS ASSUMPTION IS
VALID, THE PLAINTIFFS ARGUE, TRANSFER IS NECESSARILY PRECLUDED -
REGARDLESS OF CONVENIENCE AND OTHER CONSIDERATIONS - AS AGAINST THE
"INTEREST OF JUSTICE" IN DEALING WITH PLAINTIFFS WHO HAVE EITHER
EXERCISED THE VENUE PRIVILEGE CONFERRED BY FEDERAL STATUTES, OR HAD
THEIR CASES REMOVED FROM STATE INTO FEDERAL COURT. 

IF CONFLICT OF LAWS RULES ARE LAID ASIDE, IT IS CLEAR THAT
MASSACHUSETTS (THE STATE OF THE TRANSFEREE COURT) AND PENNSYLVANIA (THE
STATE OF THE TRANSFEROR COURT) HAVE SIGNIFICANTLY DIFFERENT LAWS
CONCERNING RECOVERY FOR WRONGFUL DEATH.  THE MASSACHUSETTS DEATH ACT
PROVIDES THAT ONE WHO NEGLIGENTLY CAUSES THE DEATH OF ANOTHER "SHALL BE
LIABLE IN DAMAGES IN THE SUM OF NOT LESS THAN TWO THOUSAND NOR MORE
THAN TWENTY THOUSAND DOLLARS, TO BE ASSESSED WITH REFERENCE TO THE
DEGREE OF HIS CULPABILITY  ...  ."  MASS. ANN. LAWS, C. 229, SEC. 2
(SUPP. 1961).  BY CONTRAST, UNDER PENNSYLVANIA LAW THE RECOVERY OF
DAMAGES (1) IS BASED UPON THE MORE COMMON PRINCIPLE OF COMPENSATION FOR
LOSSES RATHER THAN UPON THE DEGREE OF THE TORTFEASOR'S CULPABILITY AND
(2) IS NOT LIMITED TO $20,000.  (FN21)  SOME OF THE DEFENDANTS URGE,
HOWEVER, THAT THESE DIFFERENCES ARE IRRELEVANT TO THE PRESENT CASE
BECAUSE PENNSYLVANIA STATE COURTS, APPLYING THEIR OWN CHOICE OF LAW
RULES, WOULD REQUIRE THAT THE MASSACHUSETTS DEATH ACT BE APPLIED IN ITS
ENTIRETY, INCLUDING ITS CULPABILITY PRINCIPLE AND DAMAGE LIMITATION. 
(FN22)  IT FOLLOWS THAT A FEDERAL DISTRICT COURT SITTING IN
PENNSYLVANIA, AND REFERRING, AS IS REQUIRED BY KLAXON CO. V. STENTOR
ELEC.  MFG.  CO., INC., 313 U.S. 487, TO PENNSYLVANIA CHOICE-OF-LAW
RULES, WOULD THEREFORE BE APPLYING THE SAME SUBSTANTIVE RULES AS WOULD
A STATE OR FEDERAL COURT IN MASSACHUSETTS IF THE ACTIONS HAD BEEN
COMMENCED THERE.  THIS ARGUMENT HIGHLIGHTS THE FACT THAT THE MOST
CONVENIENT FORUM IS FREQUENTLY THE PLACE WHERE THE CAUSE OF ACTION
AROSE AND THAT THE CONFLICT-OF-LAWS RULES OF OTHER STATES MAY OFTEN
REFER TO THE SUBSTANTIVE RULES OF THE MORE CONVENIENT FORUM.  (FN23)
THE PLAINTIFFS, HOWEVER, POINT TO THE DECISION OF THE NEW YORK COURT OF
APPEALS IN KILBERG V. NORTHEAST AIRLINES, INC., 9 N.Y.2D 34, 211
N.Y.S.2D 133, 172 N.E.2D 526, AND THE DECISION OF THE COURT OF APPEALS
FOR THE SECOND CIRCUIT IN PEARSON V. NORTHEAST AIRLINES, INC., 309 F.2D
553, CERT. DENIED, 372 U.S. 912, AS INDICATING THAT PENNSYLVANIA, IN
LIGHT OF ITS LAWS AND POLICIES, MIGHT NOT APPLY THE CULPABILITY AND
DAMAGE LIMITATION ASPECTS OF THE MASSACHUSETTS STATUTE.  THE DISTRICT
COURT, IN ORDERING THAT THE ACTIONS BE TRANSFERRED, FOUND IT BOTH
UNDESIRABLE AND UNNECESSARY TO RULE ON THE QUESTION OF WHETHER
PENNSYLVANIA COURTS WOULD ACCEPT THE RIGHT OF ACTION PROVIDED BY THE
MASSACHUSETTS STATUTE WHILE AT THE SAME TIME DENYING ENFORCEMENT OF THE
MASSACHUSETTS MEASURE OF RECOVERY.  (FN24)  204 F. SUPP., AT 433-436. 
THE DISTRICT COURT FOUND IT UNDESIRABLE TO RESOLVE THIS QUESTION
BECAUSE THE PENNSYLVANIA COURTS HAD NOT YET CONSIDERED IT AND BECAUSE
THEY WOULD, IN VIEW OF SIMILAR PENDING CASES, SOON HAVE AN OPPORTUNITY
TO DO SO.  THE DISTRICT COURT, BEING OF THE OPINION THAT THE DISTRICT
OF MASSACHUSETTS WAS IN ANY EVENT A MORE CONVENIENT PLACE FOR TRIAL,
REASONED THAT THE TRANSFER SHOULD BE GRANTED FORTHWITH AND THAT THE
TRANSFEREE COURT COULD PROCEED TO THE TRIAL OF THE ACTIONS AND POSTPONE
CONSIDERATION OF THE PENNSYLVANIA CHOICE-OF-LAW RULE AS TO DAMAGES
UNTIL A LATER TIME AT WHICH THE PENNSYLVANIA DECISIONS MIGHT WELL HAVE
SUPPLIED USEFUL GUIDANCE.  FUNDAMENTALLY, HOWEVER, THE TRANSFERRING
DISTRICT COURT ASSUMED THAT THE PENNSYLVANIA CHOICE OF LAW RULE WAS
IRRELEVANT BECAUSE THE TRANSFER WOULD BE PERMISSIBLE AND JUSTIFIED EVEN
IF ACCOMPANIED BY A SIGNIFICANT CHANGE OF LAW. 

THE POSSIBILITIES SUGGESTED BY THE PLAINTIFFS' ARGUMENT ILLUSTRATE
THE DIFFICULTIES THAT WOULD ARISE IF A CHANGE OF VENUE, GRANTED AT THE
MOTION OF A DEFENDANT, WERE TO RESULT IN A CHANGE OF LAW.   ALTHOUGH IN
THE PRESENT CASE THE CONTENTIONS CONCERN RULES RELATING TO CAPACITY TO
SUE AND DAMAGES, IN OTHER CASES THE TRANSFEREE FORUM MIGHT HAVE A
SHORTER STATUTE OF LIMITATIONS OR MIGHT REFUSE TO ADJUDICATE A CLAIM
WHICH WOULD HAVE BEEN ACTIONABLE IN THE TRANSFEROR STATE.  IN SUCH
CASES A DEFENDANT'S MOTION TO TRANSFER COULD BE TANTAMOUNT TO A MOTION
TO DISMISS.  (FN25)  IN LIGHT, THEREFORE, OF THIS BACKGROUND AND THE
FACTS OF THE PRESENT CASE, WE NEED NOT AND DO NOT CONSIDER THE MERITS
OF THE CONTENTIONS CONCERNING THE MEANING AND PROPER APPLICATION OF
PENNSYLVANIA'S LAWS AND CHOICE OF LAW RULES.  FOR PRESENT PURPOSES IT
IS ENOUGH THAT THE POTENTIAL PREJUDICE TO THE PLAINTIFFS IS SO
SUBSTANTIAL AS TO REQUIRE REVIEW OF THE ASSUMPTION THAT A CHANGE OF
STATE LAW WOULD BE A PERMISSIBLE RESULT OF TRANSFER UNDER SEC.
1404(A). 

THE DECISIONS OF THE LOWER FEDERAL COURTS, TAKEN AS A WHOLE, REVEAL
THAT COURTS CONSTRUING SEC. 1404(A) HAVE BEEN STRONGLY INCLINED TO
PROTECT PLAINTIFFS AGAINST THE RISK THAT TRANSFER MIGHT BE ACCOMPANIED
BY A PREJUDICIAL CHANGE IN APPLICABLE STATE LAWS.  (FN26)  ALTHOUGH THE
FEDERAL COURTS HAVE UTILIZED A VARIETY OF DOCTRINES IN ORDER TO APPROVE
A DESIRABLE TRANSFER AND AT THE SAME TIME PROTECT THE PLAINTIFFS,
(FN27) THE PREVAILING VIEW IN THE LOWER FEDERAL COURTS IS THAT ADOPTED
BY THE COURT OF APPEALS FOR THE TENTH CIRCUIT IN 1950, ONLY TWO YEARS
AFTER THE ENACTMENT OF SEC. 1404(A), IN HEADRICK V. ATCHISON, T.&S.F.R.
CO., 182 F.2D 305, AND FURTHER DEVELOPED IN THE RECENT DECISION OF THE
COURT OF APPEALS FOR THE SECOND CIRCUIT IN H.L. GREEN CO., INC., V.
MACMAHON, 312 F.2D 650.  THESE CASES HAVE ADOPTED AND APPLIED A GENERAL
INTERPRETATIVE PRINCIPLE WHICH WE BELIEVE FAITHFULLY REFLECTS THE
PURPOSES UNDERLYING SEC. 1404(A). 

IN HEADRICK V. ATCHISON, T.&S.F.R. CO., SUPRA, THE PLAINTIFF, A
MISSOURI CITIZEN, HAD BEEN INJURED IN AN ACCIDENT IN CALIFORNIA.  HE
CONTENDED THAT RESPONSIBILITY LAY WITH THE DEFENDANT RAILROAD, A KANSAS
CORPORATION DOING BUSINESS IN A NUMBER OF STATES.  THE PLAINTIFF'S
MISSOURI ATTORNEY ENTERED INTO SETTLEMENT NEGOTIATIONS WITH THE
DEFENDANT BUT "THESE NEGOTIATIONS CONTINUED UNTIL AFTER AN ACTION WAS
BARRED BY THE STATUTE OF LIMITATIONS OF CALIFORNIA; AND THEREAFTER THE
ATTORNEY WAS ADVISED THAT THE DEFENDANT WOULD RELY UPON SUCH STATUTE AS
A BAR TO THE PLAINTIFF'S CLAIM  ...  ."  ID., AT 307.  THE PLAINTIFF
THEREUPON FILED HIS ACTION IN A STATE COURT IN NEW MEXICO, WHERE THE
DEFENDANT WAS AMENABLE TO PROCESS AND WHERE, BY VIRTUE OF A LONGER
STATUTE OF LIMITATIONS, SUIT WAS NOT BARRED.  THE DEFENDANT THEN
REMOVED THE CASE TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW MEXICO ON THE GROUND OF DIVERSITY.  IN THE DISTRICT COURT THE
DEFENDANT MOVED FOR DISMISSAL "OR IN THE ALTERNATIVE TO TRANSFER THE
CAUSE TO THE UNITED STATES DISTRICT COURT OF CALIFORNIA, NORTHERN
DIVISION, PURSUANT TO  ...  SEC. 1404(A)."  IBID.  THE COURT DENIED THE
TRANSFER, INDICATING "THAT IT WOULD HAVE TRANSFERRED THE ACTION TO
CALIFORNIA HAD THE STATUTE OF LIMITATIONS OF THAT STATE NOT RUN, BUT
SINCE IT HAD, A TRANSFER WOULD BE FUTILE AND UNAVAILING."  ID., AT
308.  THE COURT OF APPEALS REVERSED, OBSERVING FIRST THAT THE
PLAINTIFF:    "HAD A LEGAL RIGHT TO SELECT ANY FORUM WHERE THE
DEFENDANT WAS AMENABLE TO PROCESS AND NO CONTENTION IS MADE HERE THAT
THE CASE WAS NOT PROPERLY BROUGHT IN THE NEW MEXICO STATE COURT.  IT IS
CONCEDED THAT THE ACTION IS NOT BARRED BY THE NEW MEXICO STATUTE.  HAD
THE CASE BEEN TRIED IN THE NEW MEXICO STATE COURT, THE PROCEDURAL LAWS
OF NEW MEXICO INCLUDING THE STATUTES OF LIMITATIONS WOULD BE APPLICABLE
...  .  IN REMOVAL CASES THE FEDERAL COURT MUST APPLY THE STATE LAW
AND THE STATE POLICY."  ID., AT 309. 

FROM THIS IT FOLLOWED, THE COURT CONCLUDED, THAT: 

"UPON REMOVAL TO THE FEDERAL COURT IN NEW MEXICO, THE CASE WOULD
REMAIN A NEW MEXICO CASE CONTROLLED BY THE LAW AND POLICY OF THAT
STATE, AND IF SEC. 1404(A) IS APPLICABLE AND A TRANSFER TO THE
CALIFORNIA COURT IS ORDERED FOR THE CONVENIENCE OF THE PARTIES THE
WITNESSES AND IN THE INTERESTS OF JUSTICE, THERE IS NO LOGICAL REASON
WHY IT SHOULD NOT REMAIN A NEW MEXICO CASE STILL CONTROLLED BY THE LAW
AND POLICY OF THAT STATE."  ID., AT 309-310. 

ALTHOUGH THE CASES FOLLOWING THE HEADRICK PRINCIPLE HAVE USUALLY
INVOLVED A SIMILAR PROBLEM CONCERNING STATUTES OF LIMITATIONS, THE
COURT OF APPEALS FOR THE SECOND CIRCUIT PLAINLY INDICATED IN H.L. GREEN
CO., INC., V. MACMAHON, SUPRA, THAT THE HEADRICK RULE WAS EQUALLY
APPLICABLE TO OTHER LAWS OF THE TRANSFEROR STATE, INCLUDING CHOICE-OF
LAW RULES, WHICH MIGHT AFFECT THE OUTCOME OF THE LITIGATION.  THE
PLAINTIFF IN THAT CASE BROUGHT AN ACTION UNDER THE SECURITIES EXCHANGE
ACT IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND
THERE MOVED TO AMEND HIS COMPLAINT TO ADD A COMMON-LAW CLAIM ARISING
UNDER NEW YORK LAW.  WITHOUT RULING ON THE MOTION TO ADD TO THE
COMPLAINT, THE DISTRICT COURT GRANTED A MOTION BY THE DEFENDANT TO
TRANSFER TO THE SOUTHERN DISTRICT OF ALABAMA PURSUANT TO SEC. 1404(A). 
THE PLAINTIFF OBJECTED TO TRANSFER NOT ONLY BECAUSE THE ALABAMA STATUTE
OF LIMITATIONS WOULD BE UNFAVORABLE BUT ALSO BECAUSE PREJUDICE WOULD
RESULT FROM APPLYING ALABAMA LAW "TO THE COMMON LAW CLAIM WHICH THE
PLAINTIFF HAS MOVED TO JOIN WITH THE STATUTORY CLAIM."  312 F.2D, AT
652.  THE COURT OF APPEALS REJECTED THESE CONTENTIONS: 

"ALTHOUGH AS A MATTER OF FEDERAL POLICY A CASE MAY BE TRANSFERRED TO
A MORE CONVENIENT PART OF THE SYSTEM, WHATEVER RIGHTS THE PARTIES HAVE
ACQUIRED UNDER STATE LAW SHOULD BE UNAFFECTED.  THE CASE SHOULD REMAIN
AS IT WAS IN ALL RESPECTS BUT LOCATION.  HEADRICK V. ATCHISON, T.&S.F.
RY. CO., 182 F.2D 305  ...  ."  ID., AT 652-653. 

THE COURT MADE THE IMPORT OF THIS RULE PLAIN BY EXPRESSLY DECLARING
FIRST THAT THE TRANSFEREE COURT SITTING IN ALABAMA SHOULD APPLY NEW
YORK LAW IN RULING ON THE MOTION TO ADD TO THE COMPLAINT AND, SECONDLY,
THAT IF THE COMPLAINT WERE THUS AMENDED, THE TRANSFEREE COURT "WILL
APPLY NEW YORK LAW (INCLUDING ANY RELEVANT NEW YORK CHOICE-OF-LAW
RULES)."  ID., AT 654. 

OF COURSE THESE CASES ALLOW PLAINTIFFS TO RETAIN WHATEVER ADVANTAGES
MAY FLOW FROM THE STATE LAWS OF THE FORUM THEY HAVE INITIALLY
SELECTED.  THERE IS NOTHING, HOWEVER, IN THE LANGUAGE OR POLICY OF SEC.
1404(A) TO JUSTIFY ITS USE BY DEFENDANTS TO DEFEAT THE ADVANTAGES
ACCRUING TO PLAINTIFFS WHO HAVE CHOSEN A FORUM WHICH, ALTHOUGH IT WAS
INCONVENIENT, WAS A PROPER VENUE.  IN THIS REGARD THE TRANSFER
PROVISIONS OF SEC. 1404(A) MAY BE COMPARED WITH THOSE OF SEC. 1406(A). 
(FN28)  ALTHOUGH BOTH SECTIONS WERE BROADLY DESIGNED TO ALLOW TRANSFER
INSTEAD OF DISMISSAL, SEC. 1406(A) PROVIDES FOR TRANSFER FROM FORUMS IN
WHICH VENUE IS WRONGLY OR IMPROPERLY LAID, WHEREAS, IN CONTRAST, SEC.
1404(A) OPERATES ON THE PREMISE THAT THE PLAINTIFF HAS PROPERLY
EXERCISED HIS VENUE PRIVILEGE.  (FN29)  THIS DISTINCTION UNDERLINES THE
FACT THAT CONGRESS, IN PASSING SEC. 1404(A), WAS PRIMARILY CONCERNED
WITH THE PROBLEMS ARISING WHERE, DESPITE THE PROPRIETY OF THE
PLAINTIFF'S VENUE SELECTION, THE CHOSEN FORUM WAS AN INCONVENIENT ONE. 
(FN30) 

IN CONSIDERING THE JUDICIAL CODE, CONGRESS WAS PARTICULARLY AWARE OF
THE NEED FOR PROVISIONS TO MITIGATE ABUSES STEMMING FROM BROAD FEDERAL
VENUE PROVISIONS.  THE VENUE PROVISION OF THE FEDERAL EMPLOYERS'
LIABILITY ACT WAS THE SUBJECT OF SPECIAL CONCERN.  (FN31)  HOWEVER,
WHILE THE JUDICIAL CODE WAS PENDING, CONGRESS CONSIDERED AND REJECTED
THE JENNINGS BILL WHICH, AS THE COURT STATED IN EX PARTE COLLETT, 337
U.S. 55, 64, "WAS FAR MORE DRASTIC THAN SEC. 1404(A)," AND WHICH "WOULD
IN LARGE PART HAVE REPEALED THE VENUE SECTION OF THE LIABILITY ACT" BY
SEVERLY DELIMITING THE PERMISSIBLE FORUMS.  (FN32)  THIS LEGISLATIVE
BACKGROUND SUPPORTS THE VIEW THAT SEC. 1404(A) WAS NOT DESIGNED TO
NARROW THE PLAINTIFF'S VENUE PRIVILEGE OR TO DEFEAT THE STATE-LAW
ADVANTAGES THAT MIGHT ACCRUE FROM THE EXERCISE OF THIS VENUE PRIVILEGE
BUT RATHER THE PROVISION WAS SIMPLY TO COUNTERACT THE INCONVENIENCES
THAT FLOWED FROM THE VENUE STATUTES BY PERMITTING TRANSFER TO A
CONVENIENT FEDERAL COURT.  THE LEGISLATIVE HISTORY OF SEC. 1404(A)
CERTAINLY DOES NOT JUSTIFY THE RATHER STARTLING CONCLUSION THAT ONE
MIGHT "GET A CHANGE OF LAW AS A BONUS FOR A CHANGE OF VENUE."  (FN33)
INDEED, AN INTERPRETATION ACCEPTING SUCH A RULE WOULD GO FAR TO
FRUSTRATE THE REMEDIAL PURPOSES OF SEC. 1404(A).  IF A CHANGE OF LAW
WERE IN THE OFFING, THE PARTIES MIGHT WELL REGARD THE SECTION PRIMARILY
AS A FORUM-SHOPPING INSTRUMENT.  (FN34)  AND, MORE IMPORTANTLY, COURTS
WOULD AT LEAST BE RELUCTANT TO GRANT TRANSFERS, DESPITE CONSIDERATIONS
OF CONVENIENCE, IF TO DO SO MIGHT CONCEIVABLY PREJUDICE THE CLAIM OF A
PLAINTIFF WHO HAD INITIALLY SELECTED A PERMISSIBLE FORUM.  (FN35)  WE
BELIEVE, THEREFORE, THAT BOTH THE HISTORY AND PURPOSES OF SEC. 1404(A)
INDICATE THAT IT SHOULD BE REGARDED AS A FEDERAL JUDICIAL HOUSEKEEPING
MEASURE, DEALING WITH THE PLACEMENT OF LITIGATION IN THE FEDERAL COURTS
AND GENERALLY INTENDED, ON THE BASIS OF CONVENIENCE AND FAIRNESS,
SIMPLY TO AUTHORIZE A CHANGE OF COURTROOMS.  (FN36) 

ALTHOUGH WE DEAL HERE WITH A CONGRESSIONAL STATUTE APPORTIONING THE
BUSINESS OF THE FEDERAL COURTS, OUR INTERPRETATION OF THAT STATUTE
FULLY ACCORDS WITH AND IS SUPPORTED BY THE POLICY UNDERLYING ERIE R.
CO. V. TOMPKINS, 304 U.S. 64.  THIS COURT HAS OFTEN FORMULATED THE ERIE
DOCTRINE BY STATING THAT IT ESTABLISHES "THE PRINCIPLE OF UNIFORMITY
WITHIN A STATE," KLAXON CO. V. STENTOR ELEC.  MFG.  CO., INC., 313 U.S.
487, 496, AND DECLARING THAT FEDERAL COURTS IN DIVERSITY OF CITIZENSHIP
CASES ARE TO APPLY THE LAWS "OF THE STATES IN WHICH THEY SIT," GRIFFIN
V. MCCOACH, 313 U.S. 498, 503.  (FN37)  A SUPERFICIAL READING OF THESE
FORMULATIONS MIGHT SUGGEST THAT A TRANSFEREE FEDERAL COURT SHOULD APPLY
THE LAW OF THE STATE IN WHICH IT SITS RATHER THAN THE LAW OF THE
TRANSFEROR STATE.  SUCH A READING, HOWEVER, DIRECTLY CONTRADICTS THE
FUNDAMENTAL ERIE DOCTRINE WHICH THE QUOTED FORMULATIONS WERE DESIGNED
TO EXPRESS.  AS THIS COURT SAID IN GUARANTY TRUST CO. V. YORK, 326 U.S.
99, 109: 

"ERIE R. CO. V. TOMPKINS WAS NOT AN ENDEAVOR TO FORMULATE SCIENTIFIC
LEGAL TERMINOLOGY.  IT EXPRESSED A POLICY THAT TOUCHES VITALLY THE
PROPER DISTRIBUTION OF JUDICIAL POWER BETWEEN STATE AND FEDERAL COURTS
...  .  THE NUB OF THE POLICY THAT UNDERLIES ERIE R. CO. V. TOMPKINS IS
THAT FOR THE SAME TRANSACTION THE ACCIDENT OF A SUIT BY A NON-RESIDENT
LITIGANT IN A FEDERAL COURT INSTEAD OF IN A STATE COURT A BLOCK AWAY
SHOULD NOT LEAD TO A SUBSTANTIALLY DIFFERENT RESULT." 

APPLYING THIS ANALYSIS TO SEC. 1404(A), WE SHOULD ENSURE THAT THE
"ACCIDENT" OF FEDERAL DIVERSITY JURISDICTION DOES NOT ENABLE A PARTY TO
UTILIZE A TRANSFER TO ACHIEVE A RESULT IN FEDERAL COURT WHICH COULD NOT
HAVE BEEN ACHIEVED IN THE COURTS OF THE STATE WHERE THE ACTION WAS
FILED.  THIS PURPOSE WOULD BE DEFEATED IN CASES SUCH AS THE PRESENT IF
NONRESIDENT DEFENDANTS, PROPERLY SUBJECTED TO SUIT IN THE TRANSFEROR
STATE (PENNSYLVANIA), COULD INVOKE SEC. 1404(A) TO GAIN THE BENEFITS OF
THE LAWS OF ANOTHER JURISDICTION (MASSACHUSETTS).  WHAT ERIE AND THE
CASES FOLLOWING IT HAVE SOUGHT WAS AN IDENTITY OR UNIFORMITY BETWEEN
FEDERAL AND STATE COURTS, (FN38) AND THE FACT THAT IN MOST INSTANCES
THIS COULD BE ACHIEVED BY DIRECTING FEDERAL COURTS TO APPLY THE LAWS OF
THE STATES "IN WHICH THEY SIT" SHOULD NOT OBSCURE THAT, IN APPLYING THE
SAME REASONING TO SEC. 1404(A), THE CRITICAL IDENTITY TO BE MAINTAINED
IS BETWEEN THE FEDERAL DISTRICT COURT WHICH DECIDES THE CASE AND THE
COURTS OF THE STATE IN WHICH THE ACTION WAS FILED.  (FN39) 

WE CONCLUDE, THEREFORE, THAT IN CASES SUCH AS THE PRESENT, WHERE THE
DEFENDANTS SEEK TRANSFER, THE TRANSFEREE DISTRICT COURT MUST BE
OBLIGATED TO APPLY THE STATE LAW THAT WOULD HAVE BEEN APPLIED IF THERE
HAD BEEN NO CHANGE OF VENUE.  A CHANGE OF VENUE UNDER SEC. 1404(A)
GENERALLY SHOULD BE, WITH RESPECT TO STATE LAW, BUT A CHANGE OF
COURTROOMS.  (FN40) 

WE, THEREFORE, REJECT THE PLAINTIFFS' CONTENTION THAT THE TRANSFER
WAS NECESSARILY PRECLUDED BY THE LIKELIHOOD THAT A PREJUDICIAL CHANGE
OF LAW WOULD RESULT.  IN SO RULING, HOWEVER, WE DO NOT AND NEED NOT
CONSIDER WHETHER IN ALL CASES SEC. 1404(A) WOULD REQUIRE THE
APPLICATION OF THE LAW OF THE TRANSFEROR, AS OPPOSED TO THE TRANSFEREE,
STATE.  (FN41)  WE DO NOT ATTEMPT TO DETERMINE WHETHER, FOR EXAMPLE,
THE SAME CONSIDERATIONS WOULD GOVERN IF A PLAINTIFF SOUGHT TRANSFER
UNDER SEC. 1404(A) (FN42)  OR IF IT WAS CONTENDED THAT THE TRANSFEROR
STATE WOULD SIMPLY HAVE DISMISSED THE ACTION ON THE GROUND OF FORUM NON
CONVENIENS.  (FN43) 

B. IT IS IN LIGHT OF THE FOREGOING ANALYSIS THAT WE MUST CONSIDER THE
INTERPRETATION OF RULE 17(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE
AND THE RELATIONSHIP BETWEEN THAT RULE AND THE LAWS APPLICABLE
FOLLOWING A SEC. 1404(A) TRANSFER.  AS INDICATED, SUPRA, AT 619, THE
PLAINTIFFS CONTEND THAT TRANSFER CANNOT BE GRANTED BECAUSE, ALTHOUGH
THEY ARE FULLY QUALIFIED AS PERSONAL REPRESENTATIVES TO SUE IN COURTS
IN PENNSYLVANIA, THEY LACK THE QUALIFICATIONS NECESSARY TO SUE IN
MASSACHUSETTS.  RULE 17(B) PROVIDES THAT FOR SUCH PERSONAL
REPRESENTATIVES "CAPACITY TO SUE OR BE SUED SHALL BE DETERMINED BY THE
LAW OF THE STATE IN WHICH THE DISTRICT COURT IS HELD."  (FN44)  THE
QUESTION ARISING HERE IS WHETHER THE COURT OF APPEALS WAS CORRECT IN
ASSUMING THAT, IN THE CONTEXT OF A SEC. 1404(A) TRANSFER BETWEEN
DISTRICT COURTS, THE LANGUAGE OF THE RULE REFERRED TO THE LAW OF THE
STATE IN WHICH THE TRANSFEREE DISTRICT COURT IS HELD, RATHER THAN TO
THE LAW OF THE STATE OF THE TRANSFEROR DISTRICT COURT. 

THE PLAINTIFFS, ARGUING THAT RULE 17(B) REFERS ONLY TO THE TRANSFEREE
DISTRICT COURT, SUGGEST THAT THEIR INTERPRETATION IS NECESSARY TO
PROTECT THE INTEREST OF STATES IN CONTROLLING THE QUALIFICATIONS OF
FOREIGN FIDUCIARIES.  THE PLAINTIFFS STATE THAT THE VAST MAJORITY OF
AMERICAN JURISDICTIONS PERMIT ONLY LOCALLY QUALIFIED FOREIGN
REPRESENTATIVES BECAUSE SAFEGUARDS ARE NEEDED "TO PROTECT LOCAL
CITIZENS WHO ARE POTENTIAL DEFENDANTS FROM SUITS BY MORE THAN ONE
FIDUCIARY PURPORTING TO REPRESENT THE SAME DECEDENT AND PROTECT ALL
PERSONS FROM LOSSES CAUSED BY THE ACTIONS OF IRRESPONSIBLE OUT-OF-STATE
FIDUCIARIES."  THESE CONSIDERATIONS DO NOT, HOWEVER, SUPPORT THE
PLAINTIFFS' INTERPRETATION OF RULE 17(B).  (FN45)  IN THE PRESENT CASE,
FOR EXAMPLE, IT IS CONCEDED THAT THE PLAINTIFFS ARE QUALIFIED AS
PERSONAL REPRESENTATIVES UNDER THE LAWS OF THE TRANSFEROR STATE
(PENNSYLVANIA).  IT SEEMS CLEAR THAT THE DEFENDANTS, WHO ARE SEEKING
TRANSFER TO ANOTHER JURISDICTION, WILL BE EQUITABLY PROTECTED IF RULE
17(B) IS INTERPRETED TO REFER TO THE LAWS OF THE TRANSFEROR STATE
(PENNSYLVANIA).  IT WOULD BE IRONIC IF RULE 17(B) WERE CONSTRUED SO
THAT THESE PLAINTIFFS COULD DEFEAT TRANSFER BY ARGUING THAT THE
DEFENDANTS WOULD RECEIVE INADEQUATE PROTECTION AGAINST "FOREIGN"
FIDUCIARIES. 

WE THINK IT IS CLEAR THAT THE RULE'S REFERENCE TO THE STATE "IN WHICH
THE DISTRICT COURT IS HELD" WAS INTENDED TO ACHIEVE THE SAME BASIC
UNIFORMITY BETWEEN STATE AND FEDERAL COURTS AS WAS INTENDED BY THE
DECISIONS WHICH HAVE FORMULATED THE ERIE POLICY IN TERMS OF REQUIRING
FEDERAL COURTS TO APPLY THE LAWS OF THE STATES "IN WHICH THEY SIT." 
(FN46)  SEE SUPRA, AT 637-639.  THE PLAINTIFFS' ARGUMENT ASSUMES,
(FN47) INCORRECTLY WE THINK, THAT THE CRITICAL PHRASE - "IN WHICH THE
DISTRICT COURT IS HELD" - CARRIES A PLAIN MEANING WHICH GOVERNS EVEN IN
THE CASE OF A SEC. 1404(A) TRANSFER INVOLVING TWO DISTRICT COURTS
SITTING IN DIFFERENT STATES.  IT SHOULD BE REMEMBERED, HOWEVER, THAT
THIS PHRASE, LIKE THOSE WHICH WERE FORMULATED TO EXPRESS THE ERIE
DOCTRINE, WAS EMPLOYED LONG BEFORE THE ENACTMENT OF A SEC. 1404(A)
PROVISION FOR TRANSFER WITHIN THE FEDERAL SYSTEM.  (FN48)  WE BELIEVE
THAT RULE 17(B) WAS INTENDED TO WORK AN ACCOMMODATION OF INTEREST
WITHIN OUR FEDERAL SYSTEM AND THAT IN INTERPRETING IT IN NEW CONTEXTS
WE SHOULD LOOK TO ITS GUIDING POLICY AND KEEP IT "FREE FROM
ENTANGLEMENTS WITH ANALYTICAL OR TERMINOLOGICAL NICETIES."  CF.
GUARANTY TRUST CO. V. YORK, 326 U.S., AT 110. 

SINCE IN THIS CASE THE TRANSFEREE DISTRICT COURT MUST UNDER SEC.
1404(A) APPLY THE LAWS OF THE STATE OF THE TRANSFEROR DISTRICT COURT,
IT FOLLOWS IN OUR VIEW THAT RULE 17(B) MUST BE INTERPRETED SIMILARLY SO
THAT THE CAPACITY TO SUE WILL ALSO BE GOVERNED BY THE LAWS OF THE
TRANSFEROR STATE.  WHERE A SEC. 1404(A) TRANSFER IS THUS HELD NOT TO
EFFECT A CHANGE OF LAW BUT ESSENTIALLY ONLY TO AUTHORIZE A CHANGE OF
COURTROOMS, THE REFERENCE IN RULE 17(B) TO THE LAW OF THE STATE "IN
WHICH THE DISTRICT COURT IS HELD" SHOULD BE APPLIED IN A CORRESPONDING
MANNER SO THAT IT WILL REFER TO THE DISTRICT COURT WHICH SITS IN THE
STATE THAT WILL GENERALLY BE THE SOURCE OF APPLICABLE LAWS.  WE
CONCLUDE, THEREFORE, THAT THE COURT OF APPEALS MISCONCEIVED THE MEANING
AND APPLICATION OF RULE 17(B) AND ERRED IN HOLDING THAT IT REQUIRED THE
DENIAL OF THE SEC. 1404(A) TRANSFER.       III.  APPLICABLE LAW:
EFFECT ON THE CONVENIENCE OF PARTIES AND WITNESSES. 

THE HOLDING THAT A SEC. 1404(A) TRANSFER WOULD NOT ALTER THE STATE
LAW TO BE APPLIED DOES NOT DISPOSE OF THE QUESTION OF WHETHER THE
PROPOSED TRANSFER CAN BE JUSTIFIED WHEN MEASURED AGAINST THE RELEVANT
CRITERIA OF CONVENIENCE AND FAIRNESS.  THOUGH THE ANSWER TO THIS
QUESTION DOES NOT FOLLOW AUTOMATICALLY FROM THE DETERMINATION THAT THE
TRANSFERRED ACTIONS WILL CARRY WITH THEM THE TRANSFEROR'S LAWS, THAT
DETERMINATION NEVERTHELESS MAY MAKE THE TRANSFER MORE - OR LESS -
PRACTICAL AND DESIRABLE.  THE MATTERS TO BE WEIGHED IN ASSESSING
CONVENIENCE AND FAIRNESS ARE PERVASIVELY SHAPED BY THE CONTOURS OF THE
APPLICABLE LAWS.  THE LEGAL RULES OBVIOUSLY GOVERN WHAT FACTS WILL BE
RELEVANT AND IRRELEVANT, WHAT WITNESSES MAY BE HEARD, WHAT EVIDENCE
WILL BE MOST VITAL, AND SO ON. NOT ONLY DO THE RULES THUS AFFECT THE
CONVENIENCE OF A GIVEN PLACE OF TRIAL BUT THEY ALSO BEAR ON
CONSIDERATIONS SUCH AS JUDICIAL FAMILIARITY WITH THE GOVERNING LAWS AND
THE RELATIVE EASE AND PRACTICALITY OF TRYING THE CASES IN THE
ALTERNATIVE FORUMS. 

IN THE PRESENT CASE THE DISTRICT COURT HELD THAT THE REQUESTED
TRANSFER COULD AND SHOULD BE GRANTED REGARDLESS OF WHETHER THE LAWS OF
THE TRANSFEROR STATE OR OF THE TRANSFEREE STATE WERE TO BE APPLIED. 
204 F. SUPP., AT 433-436.  THE COURT BASED ITS RULING ON A GENERAL
FINDING THAT TRANSFER TO MASSACHUSETTS WOULD BE SUFFICIENTLY CONVENIENT
AND FAIR UNDER THE LAWS OF EITHER PENNSYLVANIA OR MASSACHUSETTS.  WE DO
NOT ATTEMPT TO REVIEW THIS GENERAL CONCLUSION OR TO REASSESS THE
DISCRETION THAT WAS EXERCISED.  WE DO CONCLUDE, HOWEVER, THAT THE
DISTRICT COURT IN ASSUMING THAT THE TRANSFEREE COURT WOULD BE FREE TO
DETERMINE WHICH STATE'S LAWS WERE TO BE APPLIED, OVERLOOKED OR DID NOT
ADEQUATELY CONSIDER SEVERAL CRITERIA OR FACTORS THE RELEVANCE OF WHICH
IS MADE MORE APPARENT WHEN IT IS RECOGNIZED THAT EVEN AFTER TRANSFER
THE LAWS OF THE TRANSFEROR STATE WILL CONTINUE OT APPLY. 

IT IS APPARENT THAT THE DESIRABILITY OF TRANSFER MIGHT BE
SIGNIFICANTLY AFFECTED IF PENNSYLVANIA COURTS DECIDED THAT, IN ACTIONS
SUCH AS THE PRESENT, THEY WOULD RECOGNIZE THE CAUSE OF ACTION BASED ON
THE MASSACHUSETTS DEATH ACT BUT WOULD NOT APPLY THAT STATUTE'S
CULPABILITY PRINCIPLE AND DAMAGE LIMITATION.  IN REGARD TO THIS
POSSIBILITY IT IS RELEVANT TO NOTE THAT THE DISTRICT COURT IN
TRANSFERRING THESE ACTIONS GENERALLY ASSUMED THAT TRANSFER TO
MASSACHUSETTS WOULD FACILITATE THE CONSOLIDATION OF THESE CASES WITH
THOSE NOW PENDING IN THE MASSACHUSETTS DISTRICT COURT AND THAT, AS A
RESULT, TRANSFER WOULD BE ACCOMPANIED BY THE FULL BENEFITS OF
CONSOLIDATION AND UNIFORMITY OF RESULT.  204 F. SUPP., AT 431-432. 
SINCE, HOWEVER, PENNSYLVANIA LAWS WOULD GOVERN THE TRIAL OF THE
TRANSFERRED CASES, INSOFAR AS THOSE LAWS MAY BE SIGNIFICANTLY DIFFERENT
FROM THE LAWS GOVERNING THE CASES ALREADY PENDING IN MASSACHUSETTS, THE
FEASIBILITY OF CONSOLIDATION AND THE BENEFITS THEREFROM MAY BE
SUBSTANTIALLY ALTERED.  MOREOVER, IF THE TRANSFERRED ACTIONS WOULD NOT
BE SUBJECT TO THE MASSACHUSETTS CULPABILITY AND DAMAGE LIMITATION
PROVISIONS, THEN THE PLAINTIFFS MIGHT FIND A RELATIVELY GREATER NEED
FOR COMPENSATORY DAMAGE WITNESSES TO TESTIFY WITH REGARD TO THE
ECONOMIC LOSSES SUFFERED BY INDIVIDUALS.  IT IS POSSIBLE THAT SUCH A
DIFFERENCE IN DAMAGE RULES COULD MAKE THE PLAINTIFFS RELATIVELY MORE
DEPENDENT UPON WITNESSES MORE CONVENIENTLY LOCATED FOR A TRIAL IN
PENNSYLVANIA.  IN ADDITION, IT HAS LONG BEEN RECOGNIZED THAT:  "THERE
IS AN APPROPRIATENESS  ...  IN HAVING THE TRIAL OF A DIVERSITY CASE IN
A FORUM THAT IS AT HOME WITH THE STATE LAW THAT MUST GOVERN THE CASE,
RATHER THAN HAVING A COURT IN SOME OTHER FORUM UNTANGLE PROBLEMS IN
CONFLICT OF LAWS, AND IN LAW FOREIGN TO ITSELF."  GULF OIL CORP. V.
GILBERT, 330 U.S. 501, 509.  THUS, TO THE EXTENT THAT PENNSYLVANIA LAWS
ARE DIFFICULT OR UNCLEAR AND MIGHT NOT DEFER TO MASSACHUSETTS LAWS, IT
MAY BE ADVANTAGEOUS TO RETAIN THE ACTIONS IN PENNSYLVANIA WHERE THE
JUDGES POSSESS A MORE READY FAMILIARITY WITH THE LOCAL LAWS. 

IF, ON THE OTHER HAND, PENNSYLVANIA COURTS WOULD APPLY THE
MASSACHUSETTS DEATH ACT IN ITS ENTIRETY, THESE SAME FACTORS MIGHT WELL
WEIGH QUITE DIFFERENTLY.  CONSOLIDATION OF THE TRANSFERRED CASES WITH
THOSE NOW PENDING IN MASSACHUSETTS MIGHT BE FREED FROM ANY POTENTIAL
DIFFICULTIES AND RENDERED MORE DESIRABLE.  THE PLAINTIFFS' NEED FOR
WITNESSES RESIDING IN PENNSYLVANIA MIGHT BE SIGNIFICANTLY REDUCED. 
AND, OF COURSE, THE TRIAL WOULD BE HELD IN THE STATE IN WHICH THE
CAUSES OF ACTION AROSE AND IN WHICH THE FEDERAL JUDGES ARE MORE
FAMILIAR WITH THE GOVERNING LAWS. 

IN POINTING TO THESE CONSIDERATIONS, WE ARE FULLY AWARE THAT THE
DISTRICT COURT CONCLUDED THAT THE RELEVANT PENNSYLVANIA LAW WAS
UNSETTLED, THAT ITS DETERMINATION INVOLVED DIFFICULT QUESTIONS, AND
THAT IN THE NEAR FUTURE PENNSYLVANIA COURTS MIGHT PROVIDE GUIDANCE. 
(FN49)  WE THINK THAT THIS UNCERTAINTY, HOWEVER, SHOULD ITSELF HAVE
BEEN CONSIDERED AS A FACTOR BEARING ON THE DESIRABILITY OF TRANSFER. 
TO A FORUM LIKELY TO PROVE EQUALLY CONVENIENT OR INCONVENIENT.  WE DO
NOT SUGGEST THAT ELEMENTS OF UNCERTAINTY IN TRANSFEROR STATE LAW WOULD
ALONE JUSTIFY A DENIAL OF TRANSFER; BUT WE DO THINK THAT THE
UNCERTAINTY IS ONE FACTOR, AMONG OTHERS, TO BE CONSIDERED IN ASSESSING
THE DESIRABILITY OF TRANSFER. 

WE HAVE NOT SINGLED OUT THE ABOVE CRITERIA FOR THE PURPOSE OF
SUGGESTING EITHER THAT THEY ARE OF CONTROLLING IMPORTANCE OR THAT THE
CRITERIA ACTUALLY RELIED UPON BY THE DISTRICT COURT WERE IMPROPER.  WE
HAVE CONCLUDED, HOWEVER, THAT THE DISTRICT COURT IGNORED CERTAIN
CONSIDERATIONS WHICH MIGHT WELL HAVE BEEN MORE CLEARLY APPRAISED AND
MIGHT HAVE BEEN CONSIDERED CONTROLLING HAD NOT THAT COURT ASSUMED THAT
EVEN AFTER TRANSFER TO MASSACHUSETTS THE TRANSFEREE DISTRICT COURT
WOULD BE FREE TO DECIDE THAT THE LAW OF ITS STATE MIGHT APPLY.  IT IS
APPROPRIATE, THEREFORE, TO REVERSE THE JUDGMENT OF THE COURT OF APPEALS
AND TO REMAND TO THE DISTRICT COURT TO RECONSIDER THE MOTION TO
TRANSFER. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS FOR THE THIRD
CIRCUIT IS REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  THE PLAINTIFFS ARE "PENNSYLVANIA FIDUCIARIES REPRESENTING THE
ESTATES OF PENNSYLVANIA DECEDENTS." 

FN2  RULE 17(B), FED. RULES CIV. PROC., 28 U.S.C.:  "CAPACITY TO SUE
OR BE SUED.  THE CAPACITY OF AN INDIVIDUAL, OTHER THAN ONE ACTING IN A
REPRESENTATIVE CAPACITY, TO SUE OR BE SUED SHALL BE DETERMINED BY THE
LAW OF HIS DOMICILE.  THE CAPACITY OF A CORPORATION TO SUE OR BE SUED
SHALL BE DETERMINED BY THE LAW UNDER WHICH IT WAS ORGANIZED.  IN ALL
OTHER CASES CAPACITY TO SUE OR BE SUED SHALL BE DETERMINED BY THE LAW
OF THE STATE IN WHICH THE DISTRICT COURT IS HELD, EXCEPT (1) THAT A
PARTNERSHIP OR OTHER UNINCORPORATED ASSOCIATION, WHICH HAS NO CAPACITY
BY THE LAW OF SUCH STATE, MAY SUE OR BE SUED IN ITS COMMON NAME FOR THE
PURPOSE OF ENFORCING FOR OR AGAINST IT A SUBSTANTIVE RIGHT EXISTING
UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES, AND (2) THAT THE
CAPACITY OF A RECEIVER APPOINTED BY A COURT OF THE UNITED STATES TO SUE
OR BE SUED IN A COURT OF THE UNITED STATES IS GOVERNED BY TITLE 28,
U.S.C. SECS. 754 AND 959(A)." 

FN3  ALTHOUGH IT IS CLEAR THAT THIS COURT HAS JURISDICTION TO REVIEW
THE JUDGMENT OF THE COURT OF APPEALS, THE GOVERNMENT, A DEFENDANT IN
THIS CASE, URGES THAT THE JUDGMENT BELOW BE REVERSED BECAUSE MANDAMUS
WAS AN IMPROPER REMEDY.  HOWEVER, IN HOFFMAN V. BLASKI, 363 U.S. 335,
AS THE GOVERNMENT CONCEDES, THIS COURT REVIEWED DECISIONS IN SEC.
1404(A) TRANSFER CASES WHICH THE COURT OF APPEALS REVIEWED THROUGH
EXERCISE OF THE MANDAMUS POWER.  SEE ALSO NORWOOD V. KIRKPATRICK, 349
U.S. 29; EX PARTE COLLETT, 337 U.S. 55.  SINCE IN OUR OPINION THE
COURTS BELOW ERRED IN INTERPRETING THE LEGAL LIMITATIONS UPON AND
CRITERIA FOR A SEC. 1404(A) TRANSFER, WE FIND IT UNNECESSARY TO
CONSIDER THE MANDAMUS CONTENTIONS ADVANCED BY THE GOVERNMENT.  CF.
PLATT V. MINNESOTA MINING & MFG. CO., ANTE, AT 240. 

FN4  SEE, E.G., NORWOOD V. KIRKPATRICK, SUPRA, AT 32:  "WHEN CONGRESS
ADOPTED SEC. 1404(A), IT INTENDED TO DO MORE THAN JUST CODIFY THE
EXISTING LAW ON FORUM NON CONVENIENS ...  .  CONGRESS, IN WRITING SEC.
1404(A), WHICH WAS AN ENTIRELY NEW SECTION, WAS REVISING AS WELL AS
CODIFYING."  1 MOORE, FEDERAL PRACTICE (2D ED., 1961), PP. 1751-1758. 

FN5  SEE EX PARTE COLLETT, SUPRA, AND UNITED STATES V. NATIONAL CITY
LINES, INC., 337 U.S. 78 (INTERPRETING "ANY CIVIL ACTION" TO INCLUDE
ACTIONS GOVERNED BY SPECIAL, AS WELL AS GENERAL, VENUE PROVISIONS). 

FN6  SEE 204 F. SUPP. 426, 437.  NOR IS THERE ANY QUESTION CONCERNING
THE PROPRIETY EITHER OF VENUE OR OF JURISDICTION IN THE EASTERN
DISTRICT OF PENNSYLVANIA, THE TRANSFEROR FORUM.  THE DISTRICT COURT
INDICATED THAT ONE OF THE CASES ARISING FROM THE BOSTON HARBOR CRASH
HAD "ALREADY BEEN TRANSFERRED DUE TO IMPROPER VENUE  ...  ."  ID., AT
427, N. 1.  THE COURT OF APPEALS NOTED THAT COUNSEL SUGGESTED THAT TWO
OTHER CASES "MUST EVENTUALLY BE TRANSFERRED TO THE DISTRICT COURT IN
MASSACHUSETTS SINCE VENUE IN THE EASTERN DISTRICT OF PENNSYLVANIA IS
IMPROPER."  309 F.2D 953, AT 958.  THE TRANSFERS ORDERED IN THESE CASES
WERE NOT CONTESTED IN THE COURT OF APPEALS, IBID., AND ARE NOT INVOLVED
IN THE PRESENT CASE.  SEE NOTES 11, 29, INFRA. 

FN7  THE TEXT OF RULE 17(B) IS SET FORTH IN NOTE 2, SUPRA. 

FN8  IN THE TWO CASES DECIDED SUB NOM. HOFFMAN V. BLASKI, SUPRA, THE
PETITIONERS CONCEDED "THAT STATUTORY VENUE DID NOT EXIST OVER EITHER OF
THESE ACTIONS IN THE RESPECTIVE TRANSFEREE DISTRICTS, AND THAT THE
RESPECTIVE DEFENDANTS WERE NOT WITHIN THE REACH OF THE PROCESS OF THE
RESPECTIVE TRANSFEREE COURTS."  ID., AT 341. 

FN9  TWO WEEKS AFTER HOFFMAN THE COURT DECIDED CONTINENTAL GRAIN CO.
V. BARGE FBL-585, 364 U.S. 19.  SEE INFRA, AT 622.  IN THAT CASE A
CARGO OWNER, SEEKING DAMAGES FROM A BARGE OWNER, HAD JOINED IN A SINGLE
COMPLAINT AN IN PERSONAM CLAIM AGAINST THE BARGE OWNER AND AN IN REM
CLAIM AGAINST THE BARGE.  THE COMPLAINT WAS FILED IN THE FEDERAL
DISTRICT COURT IN NEW ORLEANS.  AT THAT TIME THE BARGE, OR THE RES, WAS
IN NEW ORLEANS.  THE PLAINTIFF-CARGO OWNER OPPOSED A MOTION TO TRANSFER
TO THE DISTRICT COURT IN MEMPHIS ON THE GROUND THAT THE IN REM CLAIM
COULD NOT HAVE BEEN BROUGHT IN THAT FORUM WHICH HAD ONLY PERSONAL
JURISDICTION OVER THE BARGE OWNER AT THE TIME THE NEW ORLEANS SUIT WAS
BROUGHT.  THE COURT, REJECTING THIS ARGUMENT, HELD THAT FOR PURPOSES OF
ASSESSING WHERE THE LITIGATION "MIGHT HAVE BEEN BROUGHT" THE IN
PERSONAM AND IN REM CLAIMS SHOULD BE PRACTICALLY VIEWED AS A SINGLE
"CIVIL ACTION" IN WHICH THE COMPLAINANT HAD CHOSEN "AN ALTERNATIVE WAY
OF BRINGING THE OWNER INTO COURT."  ID., AT 26.  SEE COMMENT, 31 U. OF
CHI.  L. REV. 373 (1964). 

FN10  A SIMILAR RULE HAD BEEN APPLIED IN FELCHIN V. AMERICAN SMELTING
& REFINING CO., 136 F. SUPP. 577 (D.C.S.D. CAL. 1955). 

FN11  SEE NOTE, 60 YALE L.J. 183 (1951).  THE ANALOGOUS PROVISIONS OF
SEC. 1406(A), WHICH SHARES THE SAME STATUTORY CONTEXT, CONTAIN A
SIMILAR PHRASE:  "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."  28 U.S.C. SEC.
1406(A).  SEE GOLDLAWR, INC., V. HEIMAN, 369 U.S. 463; HART AND
WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (1953), P. 979;
COMMENT, 30 U. OF CHI.  L. REV. 735 (1963). 

FN12  28 U.S.C. SECS. 1391(A)(B), 1392(A)(B), 1393(B), 1395(D), 1396,
1397, 1399, 1400(B). 

FN13  28 U.S.C. SECS. 1394, 1395(A)(B)(C)(E), 1401, 1402(A)(B). 
OTHER VENUE PROVISIONS IN THE SAME CHAPTER OF THE JUDICIAL CODE USE
LANGUAGE SUCH AS:  "MAY BE SUED," SEC. 1391(D); "MUST BE BROUGHT," SEC.
1393(A); "SHALL BE BROUGHT," SECS. 1398, 1403; AND "MAY BE INSTITUTED,"
SEC. 1400(A). 

FN14  NOTE, 76 HARV. L. REV. 1679, 1680 (1963). 

FN15  SEE NOTE 9, SUPRA. 

FN16  SEE NOTE, 17 RUTGERS L. REV. 664, 668 (1963); 52 A.L.R.2D
1048.  THE IMPLICATIONS OF THE COURT OF APPEALS' DECISION ARE PLAINLY
INDICATED BY TWO SUBSEQUENT DECISIONS, GORANSON V. CAPITAL AIRLINES,
INC., 221 F. SUPP. 820 (D.C.E.D. VA.), AND THOMPSON V. CAPITAL
AIRLINES, INC., 220 F. SUPP. 140 (D.C.S.D.N.Y.). 

FN17  THE TEXT OF RULE 17(B) IS SET FORTH IN NOTE 2, SUPRA. 

FN18  SEE THE RATIONALE ADOPTED IN FELCHIN V. AMERICAN SMELTING &
REFINING CO., 136 F. SUPP. 577 (RELIED UPON BY THE COURT OF APPEALS IN
THE PRESENT CASE, 309 F.2D, AT 957). 

FN19  IT HAS BEEN OBSERVED THAT IN THE PRESENT CASE "THE COURT OF
APPEALS' FORAY INTO MASSACHUSETTS SUBSTANTIVE LAW NEED NEVER HAVE BEEN
UNDERTAKEN HAD THE COURT BEEN CONFIDENT THAT THE TRANSFEREE FORUM WOULD
TREAT THE QUESTION OF QUALIFICATION AS GOVERNED BY THE DOCTRINE  ...
THAT THE TRANSFEREE COURT SHOULD APPLY THE LAW OF THE TRANSFEROR
FORUM."  NOTE, 76 HARV. L. REV. 1679, 1681 (1963).  SIMILARLY, IT HAS
BEEN NOTED THAT IF UNDER THE COURT OF APPEALS DECISION "THERE IS NO
SIGNIFICANT DIFFERENCE BETWEEN VENUE-JURISDICTION AND CAPACITY, THERE
MAY BE NO ADEQUATE DIFFERENCE BETWEEN CAPACITY AND A HOST OF OTHER
DEFENSIVE BARS THAT MAY FORESEEABLY SUBJECT A PLAINTIFF TO DISMISSAL." 
NOTE, 17 RUTGERS L. REV. 664, 666 (1963); CF. COMMENT, 51 COL. L. REV.
762, 771 (1951).    FN20  SEE CAVERS, CHANGE IN CHOICE-OF-LAW THINKING
AND ITS BEARING ON THE KLAXON PROBLEM, IN A.L.I., STUDY OF THE DIVISION
OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS (TENT.  DRAFT NO. 1,
1963), PP. 154, 193. 

FN21  IN MASSACHUSETTS BONDING & INS. CO. V. UNITED STATES, 352 U.S.
128, THIS COURT REVIEWED THE RELATIONSHIP BETWEEN THE PROVISIONS OF THE
FEDERAL TORT CLAIMS ACT AND THE PRINCIPLES OF THE MASSACHUSETTS DEATH
ACT.  ONLY TWO STATES, ALABAMA AND MASSACHUSETTS, "AWARD ONLY PUNITIVE
DAMAGES FOR WRONGFUL DEATHS."  ID., AT 130-131.  THE COURT STATED:
"THE ASSESSMENT OF DAMAGES WITH REFERENCE TO THE DEGREE OF CULPABILITY
OF THE TORT-FEASOR, RATHER THAN WITH REFERENCE TO THE AMOUNT OF
PECUNIARY LOSS SUFFERED BY THE NEXT OF KIN, MAKES THOSE DAMAGES
PUNITIVE IN NATURE.  THAT HAS BEEN THE HOLDING OF THE SUPREME JUDICIAL
COURT OF MASSACHUSETTS  ...  .  THE STANDARD OF LIABILITY UNDER THE
MASSACHUSETTS DEATH ACT IS PUNITIVE - I.E., 'WITH REFERENCE TO THE
DEGREE' OF CULPABILITY - NOT COMPENSATORY  ...  .  THERE IS NOTHING IN
THE MASSACHUSETTS LAW WHICH MEASURES THE DAMAGES BY 'PECUNIARY
INJURIES.'"  ID., AT 129, 132, 133.  E.G., BEATTY V. FOX, 328 MASS.
216, 102 N.E.2D 781; MACCHIAROLI V. HOWELL, 294 MASS. 144, 200 N.E.
905; BOOTT MILLS V. BOSTON & M.R. CO., 218 MASS. 582, 106 N.E. 680;
BAGLEY V. SMALL, 92 N.H. 107, 26 A.2D 23.  COMPARE 12 PURDON'S PA.
STAT. ANN. SECS. 1601-1604; SPANGLER V. HELM'S NEW YORK-PITTSBURGH
MOTOR EXPRESS, 396 PA. 482, 153 A.2D 490; CF. THIRTEENTH & FIFTEENTH
STREET PASSENGER R. CO. V. BOUDROU, 92 PA. 475, 481-482. 

FN22  CF. GORANSON V. KLOEB, 308 F.2D 655. 

FN23  SEE BLUME, PLACE OF TRIAL OF CIVIL CASES, 48 MICH. L. REV. 1,
37 (1949). 

FN24  THE DEFENDANTS, REJECTING THE VIEW ADOPTED BY THE SECOND
CIRCUIT IN PEARSON V. NORTHEAST AIRLINES, INC., 309 F.2D 553, CONTEND
THAT THE FULL FAITH AND CREDIT CLAUSE REQUIRES PENNSYLVANIA COURTS TO
FOLLOW ALL THE TERMS OF THE MASSACHUSETTS DEATH ACT.  WE INTIMATE NO
VIEW CONCERNING THIS CONTENTION. 

FN25  SEE, E.G., NOTE, 64 HARV. L. REV. 1347, 1354-1355 (1951), WHICH
ASSUMES THAT CHANGES OF VENUE MIGHT BE ACCOMPANIED BY CHANGES OF LAW
AND CONCLUDES THAT:  "TO MAKE THE TRANSFER PURELY FOR REASONS OF
CONVENIENCE, WITHOUT CONSIDERING THE DIFFERENCE IN LAW, WOULD AMOUNT TO
DIRECTING A VERDICT ON THE MERITS WITHOUT EXAMINING THEM." 

FN26  SEE H.L. GREEN CO., INC., V. MACMAHON, 312 F.2D 650; BENTON V.
VINSON, ELKINS, WEEMS & SEARLS, 255 F.2D 299; HEADRICK V. ATCHISON,
T.&S.F.R. CO., 182 F.2D 305.  SEE ALSO, E.G., KING BROS. PRODUCTIONS,
INC., V. RKO TELERADIO PICTURES, INC., 208 F. SUPP.  271; GOMEZ V. THE
SS DOROTHY, 183 F. SUPP. 499; HARGROVE V. LOUISVILLE & N.R. CO., 153 F.
SUPP. 681; HEATON V. SOUTHERN R. CO., 119 F. SUPP. 658; FRECHOUX V.
LYKES BROS.  S.S. CO., INC., 118 F. SUPP. 234; GREVE V. GIBRALTAR
ENTERPRISES, INC., 85 F. SUPP.  410; CF. CURRY V. STATES MARINE CORP.
OF DELAWARE, 118 F. SUPP. 234.   BUT CF. GORANSON V. KLOEB, 308 F.2D
655 (TRANSFER GRANTED BECAUSE, EVEN ASSUMING TRANSFEREE LAW APPLIED,
THE SUBSTANTIVE RULES WOULD BE IDENTICAL); FELCHIN V. AMERICAN SMELTING
& REFINING CO., 136 F. SUPP. 577 (SEE NOTE 18, SUPRA); CURRY V. STATES
MARINE CORP. OF DELAWARE, SUPRA (TRANSFER DENIED UPON FAILURE OF
PARTIES TO STIPULATE THAT TRANSFEROR STATUTE OF LIMITATIONS WOULD
APPLY).  SEE ALSO AUTHORITIES CITED, NOTE 39, INFRA. 

FN27  FREQUENTLY COURTS, DEALING WITH A DEFENDANT'S MOTION TO
TRANSFER, HAVE RELIED AT LEAST IN PART UPON A TRANSFER-ON-CONDITION OR
ESTOPPEL APPROACH TO GRANT TRANSFER AND PROTECT THE PLAINTIFF.  E.G.,
FRECHOUX V. LYKES BROS. S.S. CO., SUPRA; GREVE V. GIBRALTAR
ENTERPRISES, INC., SUPRA; CRAWFORD V. THE SS SHIRLEY LYKES, 148 F.
SUPP. 958; MAY V. THE STEEL NAVIGATOR, 152 F. SUPP. 254; HOKANSON V.
HELENE CURTIS INDUSTRIES, INC., 177 F. SUPP. 701. 

FN28  SEE NOTE 11, SUPRA. 

FN29  IN VIAGGIO V. FIELD, 177 F. SUPP. 643, 648, THE DISTRICT COURT
SUGGESTED THAT CASES WHERE DEFENDANTS SOUGHT TRANSFER UNDER SEC.
1404(A) WERE THE "CONVERSE OF THE SITUATION  ...  IN THE INSTANT CASE
(UNDER SEC. 1406(A)) WHERE IT IS THE PLAINTIFF WHO BROUGHT THE SUIT
INCORRECTLY IN THIS COURT AND IS NOW ASKING TO HAVE IT TRANSFERRED TO
ANOTHER COURT AND HOPES THEREBY TO OBTAIN AN ADVANTAGE WITH RESPECT TO
THE TRANSFEREE STATE'S STATUTE OF LIMITATIONS."  SEE SKILLING V. FUNK
AIRCRAFT CO., 173 F. SUPP. 939; COMMENT, 61 COL. L. REV. 902, 914
(1961); COMMENT, 30 U. OF CHI.  L. REV. 735, 745, N. 68 (1963);
COMMENT, 1962 WIS. L. REV. 342, 354.  CF. GOLDLAWR, INC., V. HEIMAN,
369 U.S., AT 466-467.  SEE NOTE 6, SUPRA. 

FN30  SEE GULF OIL CORP. V. GILBERT, 330 U.S. 501, 507:  "THE
PRINCIPLE OF FORUM NON CONVENIENS IS SIMPLY THAT A COURT MAY RESIST
IMPOSITION UPON ITS JURISDICTION EVEN WHEN JURISDICTION IS AUTHORIZED
BY THE LETTER OF A GENERAL VENUE STATUTE.  THESE STATUTES ARE DRAWN
WITH A NECESSARY GENERALITY AND USUALLY GIVE A PLAINTIFF A CHOICE OF
COURTS, SO THAT HE MAY BE QUITE SURE OF SOME PLACE IN WHICH TO PURSUE
HIS REMEDY."  THE REVISOR'S NOTE TO SEC. 1404(A) STATES THAT IT "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, 62 S. CT. 6, 314 U.S. 44, 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."  REVISION OF TITLE 28, U.S.C.  REPORT OF THE HOUSE COMMITTEE ON
REVISION OF THE LAWS ON H.R. 7124, 79TH CONG., 2D SESS., P. A127. 

FN31  SEE EX PARTE COLLETT, SUPRA, AT 68-69; REVISOR'S NOTE FOLLOWING
SEC. 1404(A) (NOTE 30, SUPRA); MOORE, COMMENTARY ON THE U.S. JUDICIAL
CODE (1949), P. 206. 

FN32  IN EX PARTE COLLETT, SUPRA, AT 60, THE COURT OBSERVED:
"SECTION 6 OF THE LIABILITY ACT DEFINES THE PROPER FORUM; SEC. 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 SEC. 6 OF THE LIABILITY ACT OR ELSEWHERE TO BRING SUIT IN A
PARTICULAR DISTRICT.  AN ACTION MAY STILL BE BROUGHT IN ANY COURT,
STATE OR FEDERAL, IN WHICH IT MIGHT HAVE BEEN BROUGHT PREVIOUSLY." 

FN33  MR. JUSTICE JACKSON, DISSENTING IN WELLS V. SIMONDS ABRASIVE
CO., 345 U.S. 514, 522, EXPRESSED DISMAY AT WHAT HE VIEWED AS SUCH A
SUGGESTION:  "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,  ... THEN SHOPPING FOR A FAVORABLE LAW VIA THE TRANSFER
ROUTE OPENS UP POSSIBILITIES OF CONFLICT, CONFUSION AND INJUSTICE
GREATER THAN ANYTHING SWIFT V. TYSON, 16 PET.1, EVER HELD." 

FN34  SEE CURRIE, CHANGE OF VENUE AND THE CONFLICT OF LAWS, 22 U. OF
CHI.  L. REV. 405, 441 (1955):  "IF IT SHOULD BE ESTABLISHED AS A RULE
OF THUMB THAT THE TRANSFEREE COURT IS TO APPLY THE LAW OF THE STATE IN
WHICH IT SITS, EVERY CASE IN WHICH THERE IS A DIFFERENCE OF LAW BETWEEN
THE ORIGINAL AND THE TRANSFEREE STATE WOULD BECOME A GAME OF CHESS,
WITH SECTION 1404(A) AUTHORIZING A KNIGHT'S MOVE; AND NOTHING WOULD BE
CERTAIN EXCEPT THAT THE PARTIES WOULD LAND ON A SQUARE OF A DIFFERENT
COLOR." 

FN35  SEE, E.G., NOTE, 64 HARV. L. REV. 1347, 1355 (1951):  "IT WOULD
SEEM BEST, THEREFORE, NOT TO TRANSFER AT ALL WHERE THE LAW WHICH WOULD
BE APPLIED IN THE TRANSFEREE FORUM WOULD BE MATERIALLY DIFFERENT FROM
THAT APPLIED BY THE TRANSFERRING COURT." 

FN36  FOR RECENT PROPOSALS, SEE A.L.I., STUDY OF THE DIVISION OF
JURISDICTION BETWEEN STATE AND FEDERAL COURTS (TENT.  DRAFT NO. 1,
1963), SECS. 1306, 1307, 1308.  THE COMMENTARY ON THE PROPOSED SEC.
1306 NOTES THAT, WHERE THE DEFENDANT SEEKS TRANSFER, THE SECTION WOULD
PROVIDE "THAT THE TRANSFEREE COURT SHALL APPLY THE RULES WHICH THE
TRANSFEROR COURT WOULD HAVE BEEN BOUND TO APPLY ...  .  THE EFFECT IS
TO GIVE THE PLAINTIFF THE BENEFIT WHICH TRADITIONALLY HE HAS HAD IN THE
SELECTION OF A FORUM WITH FAVORABLE CHOICE-OF-LAW RULES  ...  .  IT MAY
BE THOUGHT UNDESIRABLE TO LET THE PLAINTIFF REAP A CHOICE-OF-LAW
BENEFIT FROM THE DELIBERATE SELECTION OF AN INCONVENIENT FORUM.  IN A
SENSE THIS IS SO, BUT THE ALTERNATIVES SEEM EVEN MORE UNDESIRABLE.  IF
THE RULES OF THE STATE WHERE THE TRANSFEREE DISTRICT IS LOCATED WERE TO
CONTROL, THE JUDGE EXERCISING HIS DISCRETION UPON A MOTION FOR TRANSFER
MIGHT WELL MAKE A RULING DECISIVE OF THE MERITS OF THE CASE.  WHETHER
HE SHOULD SIMPLY DECIDE THE APPROPRIATE PLACE FOR TRIAL, LETTING THE
CHOICE-OF-LAW BONUS FALL AS IT MAY, OR INCLUDE IN HIS CONSIDERATION OF
'THE INTEREST OF JUSTICE' THE 'JUST' CHOICE-OF-LAW RULE, THE RESULT IS
UNFORTUNATE  ...  ."  ID., AT 65-66. 

FN37  SEE ALSO, E.G., GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 108
("A FEDERAL COURT ADJUDICATING A STATE-CREATED RIGHT SOLELY BECAUSE OF
THE DIVERSITY OF CITIZENSHIP OF THE PARTIES IS FOR THAT PURPOSE, IN
EFFECT, ONLY ANOTHER COURT OF THE STATE  ...  "). 

FN38  IN KLAXON CO. V. STENTOR ELEC.  MFG.  CO., INC., 313 U.S. 487,
496, THE COURT OBSERVED THAT: "WHATEVER LACK OF UNIFORMITY THE ERIE
DOCTRINE MAY PRODUCE BETWEEN FEDERAL COURTS IN DIFFERENT STATES IS
ATTRIBUTABLE TO OUR FEDERAL SYSTEM, WHICH LEAVES TO A STATE, WITHIN THE
LIMITS PERMITTED BY THE CONSTITUTION, THE RIGHT TO PURSUE LOCAL
POLICIES DIVERGING FROM THOSE OF ITS NEIGHBORS."  SEE NOTE 36, SUPRA. 

FN39  SEE CASES CITED, NOTES 26-27, SUPRA.  SEE 1 MOORE, SUPRA, AT
1772-1777; CURRIE, CHANGE OF VENUE AND THE CONFLICT OF LAWS, 22 U. OF
CHI.  L. REV. 405, 410-413, 438-439 (1955); CURRIE, CHANGE OF VENUE AND
THE CONFLICT OF LAWS:  A RETRACTION, 27 U. OF CHI.  L. REV. 341 (1960);
NOTE, 60 YALE L.J. 537 (1951).  BUT SEE KAUFMAN, OBSERVATIONS ON
TRANSFERS UNDER SEC. 1404(A) OF THE NEW JUDICIAL CODE, 10 F.R.D. 595,
601 (1951); NOTE, 64 HARV. L. REV. 1347, 1354-1355 (1951); CF. NOTE, 35
CORNELL L.Q. 459, 462, 464 (1950). 

FN40  OF COURSE THE TRANSFEREE DISTRICT COURT MAY APPLY ITS OWN RULES
GOVERNING THE CONDUCT AND DISPATCH OF CASES IN ITS COURT.  WE ARE ONLY
CONCERNED HERE WITH THOSE STATE LAWS OF THE TRANSFEROR STATE WHICH
WOULD SIGNIFICANTLY AFFECT THE OUTCOME OF THE CASE. 

FN41  WE DO NOT SUGGEST THAT THE APPLICATION OF TRANSFEROR STATE LAW
IS FREE FROM CONSTITUTIONAL LIMITATIONS.  SEE, E.G., WATSON V.
EMPLOYERS LIABILITY ASSURANCE CORP., LTD., 348 U.S. 66; HUGHES V.
FETTER, 341 U.S. 609; PACIFIC EMPLOYERS INS. CO. V. INDUSTRIAL ACCIDENT
COMM'N, 306 U.S. 493; ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT
COMM'N, 294 U.S. 532; HOME INS. CO. V. DICK, 281 U.S. 397. 

FN42  CF. NOTE 29, SUPRA. 

FN43  COMPARE CURRIE, CHANGE OF VENUE AND THE CONFLICT OF LAWS:  A
RETRACTION, 27 U. OF CHI.  L. REV., AT 348 (1960); WITH NOTE, 60 YALE
L.J. 537, 539-541 (1951).  IN PARSONS V. CHESAPEAKE & O.R. CO., 375
U.S. 71, INVOLVING A SUIT ARISING UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, THE COURT RULED IN A PER CURIAM OPINION THAT:  "A PRIOR
STATE COURT DISMISSAL ON THE GROUND OF FORUM NON CONVENIENS CAN NEVER
SERVE TO DIVEST A FEDERAL DISTRICT JUDGE OF THE DISCRETIONARY POWER
VESTED IN HIM BY CONGRESS TO RULE UPON A MOTION TO TRANSFER UNDER SEC.
1404(A)."  ID., AT 73-74. 

FN44  THE TEXT OF RULE 17(B) IS SET FORTH IN NOTE 2, SUPRA. 

FN45  THE COURT OF APPEALS, REFERRING TO RULE 17(B), OBSERVED:  "THAT
MOST JURISDICTIONS DO NOT PERMIT FOREIGN PERSONAL REPRESENTATIVES TO
BRING SUIT IN THEIR COURTS AS A MATTER OF RIGHT IS A WELL KNOWN RULE OF
LAW, AND WE CANNOT PRESUME THAT CONGRESS INTENDED TO ALTER STATE POLICY
TO THE EXTENT OF PERMITTING TRANSFER OF SUCH SUITS TO THE FEDERAL
COURTS SITTING IN THOSE STATES."  309 F.2D, AT 958.  THIS ASSUMES THAT
IT IS CONSISTENT WITH THE PURPOSES OF RULE 17(B) THAT THE GOVERNING OR
PREVAILING "STATE POLICY" BE THE POLICY OF THE TRANSFEREE STATE RATHER
THAN THAT OF THE TRANSFEROR STATE.  SINCE, HOWEVER, THE ACTIONS WHEN
ORIGINALLY INSTITUTED WERE SUBJECT TO THE TRANSFEROR STATE'S LAWS, IT
IS MISLEADING TO SUGGEST THAT THE CONTINUED APPLICATION OF THOSE LAWS
WOULD "ALTER" STATE POLICY.  TO THE CONTRARY, IF THE PLAINTIFFS HAVE
SELECTED A PROPER STATE FORUM AND HAVE QUALIFIED THEREIN AS PERSONAL
REPRESENTATIVES, THE POLICY OF THAT STATE WOULD BE "ALTERED" IF AS A
RESULT OF THE DEFENDANTS' MOTION TO TRANSFER UNDER SEC. 1404(A) THE
PLAINTIFFS LOST THEIR STATUS AS QUALIFIED REPRESENTATIVES. 

FN46  CF. NOTE, 62 HARV. L. REV. 1030, 1037-1041 (1949). 

FN47  SEE FELCHLIN V. AMERICAN SMELTING & REFINING CO., 136 F. SUPP.
577, 581-582 (NOTE 18, SUPRA). 

FN48  THE RELEVANT PROVISIONS OF RULE 17(B) WERE ADOPTED BY THIS
COURT AND TRANSMITTED TO CONGRESS ON DECEMBER 20, 1937.  SEE 308 U.S.
649, 685.  SECTION 1404(A) WAS FIRST ENACTED IN THE JUDICIAL CODE OF
1948. 

FN49  204 F. SUPP., AT 435 AND N. 20.  THE DISTRICT COURT OPINION WAS
FILED IN APRIL 1962.  THE DEFENDANTS ALLEGE THAT A SUBSEQUENT
PENNSYLVANIA DECISION, GRIFFITH V. UNITED AIR LINES, INC. (PA. C.P.,
PHILA.  CTY., JUNE TERM, 1962, NO. 2013), INDICATES THAT PENNSYLVANIA
COURTS WOULD ACCEPT AND APPLY THE MASSACHUSETTS DEATH ACT IN ITS
ENTIRETY.  OF COURSE WE INTIMATE NO VIEW WITH RESPECT TO THIS
CONTENTION.    MR. JUSTICE BLACK CONCURS IN THE REVERSAL SUBSTANTIALLY
FOR THE REASONS SET FORTH IN THE OPINION OF THE COURT, BUT HE BELIEVES
THAT, UNDER THE CIRCUMSTANCES SHOWN IN THE OPINION, THIS COURT SHOULD
NOW HOLD IT WAS ERROR TO ORDER THESE ACTIONS TRANSFERRED TO THE
DISTRICT OF MASSACHUSETTS. 
..END :










PORT OF BROOKINGS V. UNITED STATES 376 U.S. 647 


NO. 771.  DECIDED MARCH 30, 1964.  - AFFIRMED. 


PORT OF BROOKINGS ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















IN RE CROW 376 U.S. 647 


NO. 767.  DECIDED MARCH 30, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


IN RE CROW. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CARTER V. FLORIDA 376 U.S. 648 


NO. 817.  DECIDED MARCH 30, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  155 SO. 2D 787. 


CARTER V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















SUBURBAN TELEPHONE CO. V. MOUNTAIN STATES TELEPHONE & TELEGRAPH CO. 376
U.S. 648 


NO. 800.  DECIDED MARCH 30, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  72 N.M. 411, 384 P.2D 684. 


SUBURBAN TELEPHONE CO. V. MOUNTAIN STATES TELEPHONE & TELEGRAPH CO. ET
AL. 

APPEAL FROM THE SUPREME COURT OF NEW MEXICO. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











O'BRYAN V. OKLAHOMA BAR ASSOCIATION 376 U.S. 649 


NO. 812.  DECIDED MARCH 30, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  385 P.2D 876. 


O'BRYAN V. OKLAHOMA EX REL. OKLAHOMA BAR ASSOCIATION. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SELLS V. WELSH, GOVERNOR OF INDIANA 376 U.S. 649 


NO. 803.  DECIDED MARCH 30, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  244 IND. 423, 192
N.E.2D 753. 


SELLS ET AL. V. WELSH, GOVERNOR OF INDIANA, ET AL. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















HAMILTON V. ALABAMA 376 U.S. 650 


NO. 793.  DECIDED MARCH 30, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW:  275 ALA. 574, 156 SO. 2D 926. 


HAMILTON V. ALABAMA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
REVERSED.  JOHNSON V. VIRGINIA, 373 U.S. 61. 

MR. JUSTICE BLACK CONCURS IN REVERSAL OF THE JUDGMENT OF CONTEMPT FOR
REASONS DISCUSSED IN IN RE MURCHISON, 349 U.S. 133, IN RE OLIVER, 333
U.S. 257, AND THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199.  CF. OFFUTT
V. UNITED STATES, 348 U.S. 11. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE ARE OF
THE OPINION THAT CERTIORARI SHOULD BE DENIED. 
..END :









BRUNING V. UNITED STATES 376 U.S. 358 


NO. 423.  ARGUED MARCH 3, 1964.  - DECIDED MARCH 23, 1964.  - 317 F.2D
229, AFFIRMED. 


UNITED STATES IS ENTITLED TO RECOVER INTEREST ON TAX CLAIMS FOR THE
PERIOD FROM THE FILING OF A PETITION IN BANKRUPTCY TO THE DATE OF
PAYMENT OF SUCH CLAIMS FROM PROPERTY ACQUIRED BY THE BANKRUPT AFTER
DISCHARGE IN BANKRUPTCY, WHERE THE TAX CLAIMS UNDER SEC. 17 OF THE
FEDERAL BANKRUPTCY ACT WERE NOT DISCHARGED IN THE BANKRUPTCY
PROCEEDINGS.  NEW YORK V. SAPER, 336 U.S. 328, DISTINGUISHED.  PP. 358
363. 

BRUNING V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE PRESENTED IN THIS CASE IS WHETHER THE UNITED STATES IS
ENTITLED TO RECOVER OUT OF ASSETS ACQUIRED BY A DEBTOR AFTER HIS
ADJUDICATION OF BANKRUPTCY, POST-PETITION INTEREST ON A TAX ASSESSMENT
WHICH (UNDER SEC. 17 OF THE FEDERAL BANKRUPTCY ACT, 30 STAT. 544, 550,
AS AMENDED, 11 U.S.C. SEC. 35) WAS NOT DISCHARGED IN THE BANKRUPTCY
PROCEEDINGS.  THE ESSENTIAL FACTS ARE NOT IN DISPUTE.  PETITIONER
INCURRED WITHHOLDING AND FEDERAL INSURANCE CONTRIBUTIONS TAXES DURING
THE FOURTH QUARTER OF 1951 BUT FAILED TO PAY THOSE TAXES WHEN DUE.  IN
MARCH 1952, AN ASSESSMENT OF THOSE TAXES WAS MADE AGAINST PETITIONER. 
ON JULY 6, 1953, PETITIONER FILED A VOLUNTARY PETITION IN BANKRUPTCY
AND WAS ADJUDICATED A BANKRUPT IN THE FEDERAL DISTRICT COURT FOR THE
WESTERN DISTRICT OF LOUISIANA.  THE DISTRICT DIRECTOR OF INTERNAL
REVENUE FILED A CLAIM IN THE BANKRUPTCY PROCEEDINGS FOR THE ASSESSED
AMOUNT OWED BY PETITIONER, AND THE UNITED STATES RECEIVED A SMALL
DISTRIBUTION OUT OF THE ASSETS OF THE BANKRUPTCY ESTATE.  PETITIONER
WAS GRANTED A DISCHARGE IN BANKRUPTCY IN OCTOBER 1953, AND THE CASE WAS
CLOSED IN JUNE 1954. 

IN 1957, PETITIONER FILED CLAIMS FOR REFUND OF INCOME TAXES PAID FOR
THE YEARS 1953 AND 1954, WHICH RESULTED IN HIS BEING ALLOWED A CREDIT
FOR INCOME TAXES AND INTEREST IN RESPECT OF THOSE YEARS.  ON MARCH 7,
1958, THE DIRECTOR OF INTERNAL REVENUE APPLIED THE ENTIRE 1953 CREDIT
AND PART OF THE 1954 CREDIT (FN1) TO THE BALANCE OF THE ASSESSMENT OF
THE WITHHOLDING AND F.I.C.A. TAXES OWED FOR 1951, PLUS INTEREST TO DATE
- INCLUDING INTEREST WHICH HAD ACCRUED DURING THE PERIOD BETWEEN THE
FILING OF PETITIONER'S PETITION IN BANKRUPTCY (JULY 6, 1953) AND THE
DATE OF PAYMENT (MARCH 7, 1958).  THIS POST-PETITION INTEREST, WHICH
TOTALS ABOUT $795, IS THE SUBJECT OF THE PRESENT CONTROVERSY. 
PETITIONER DID NOT QUESTION THE DIRECTOR'S RIGHT TO COLLECT FROM ASSETS
ACQUIRED BY PETITIONER AFTER BANKRUPTCY THE UNPAID PRINCIPAL OF THE TAX
DEBT AND THE PRE-PETITION INTEREST.  HOWEVER, CONTENDING THAT HE WAS
NOT LIBALE FOR INTEREST ACCRUING ON THE ASSESSMENT AFTER HIS PETITION
IN BANKRUPTCY WAS FILED, PETITIONER BROUGHT SUIT IN THE FEDERAL
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA FOR REFUND OF
THAT PORTION OF THE INTEREST.  THE DISTRICT COURT HELD THAT
PETITIONER'S PERSONAL LIABILITY FOR POST-PETITION INTEREST ON THE
UNPAID TAXES WAS NOT DISCHARGED BY THE BANKRUPTCY PROCEEDINGS, AND THE
COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED.  DUE TO AN APPARENT
CONFLICT BETWEEN CIRCUITS (FN2) AND THE POTENTIALLY RECURRING NATURE OF
THE QUESTION INVOLVED, WE GRANTED CERTIORARI, 375 U.S. 920.  WE AFFIRM
THE DECISION BELOW. 

IN RELEVANT PART: 

"A DISCHARGE IN BANKRUPTCY SHALL RELEASE A BANKRUPT FROM ALL OF HIS
PROVABLE DEBTS, WHETHER ALLOWABLE IN FULL OR IN PART, EXCEPT SUCH AS
(1) ARE DUE AS A TAX LEVIED BY THE UNITED STATES  ... ." 

IT IS UNDISPUTED THAT, UNDER SEC. 17, PETITIONER REMAINED PERSONALLY
LIABLE AFTER HIS DISCHARGE FOR THAT PART OF THE PRINCIPAL AMOUNT OF THE
TAX DEBT AND PRE-PETITION INTEREST NOT SATISFIED OUT OF THE BANKRUPTCY
ESTATE.  THE COURTS BELOW HELD THAT, UNDER SEC. 17, PETITIONER ALSO
REMAINED PERSONALLY LIABLE FOR POST-PETITION INTEREST ON THE TAX DEBT,
AND WE FIND NO SUBSTANTIAL REASON TO REVERSE THAT HOLDING.  INITIALLY,
ONE WOULD ASSUME THAT CONGRESS, IN PROVIDING THAT A CERTAIN TYPE OF
DEBT SHOULD SURVIVE BANKRUPTCY PROCEEDINGS AS A PERSONAL LIABILITY OF
THE DEBTOR, INTENDED PERSONAL LIABILITY TO CONTINUE AS TO THE INTEREST
ON THAT DEBT AS WELL AS TO ITS PRINCIPAL AMOUNT.  THUS, IT HAS NEVER
BEEN SERIOUSLY SUGGESTED THAT A CREDITOR WHOSE CLAIM IS NOT PROVABLE
AGAINST THE TRUSTEE IN BANKRUPTCY LOSES HIS RIGHT TO INTEREST IN A POST
BANKRUPTCY ACTION BROUGHT AGAINST THE DEBTOR PERSONALLY.  IN MOST
SITUATIONS, INTEREST IS CONSIDERED TO BE THE COST OF THE USE OF THE
AMOUNTS OWING A CREDITOR AND AN INCENTIVE TO PROMPT REPAYMENT AND,
THUS, AN INTEGRAL PART OF A CONTINUING DEBT.  INTEREST ON A TAX DEBT
WOULD SEEM TO FIT THAT DESCRIPTION.  THUS, LOGIC AND REASON INDICATE
THAT POST-PETITION INTEREST ON A TAX CLAIM EXCEPTED FROM DISCHARGE BY
SEC. 17 OF THE ACT SHOULD BE RECOVERABLE IN A LATER ACTION AGAINST THE
DEBTOR PERSONALLY, AND THERE IS NO EVIDENCE OF ANY CONGRESSIONAL INTENT
TO THE CONTRARY. 

PETITIONER SUGGESTS THAT THE GOVERNMENT MIGHT HAVE IGNORED THE
BANKRUPTCY PROCEEDING ENTIRELY AND LATER BROUGHT SUIT UPON ITS
UNDISCHARGED CLAIM AGAINST PETITIONER PERSONALLY AND COLLECTED BOTH
PRINCIPAL AND INTEREST.  BUT PETITIONER ASSERTS THAT ONCE THE
GOVERNMENT FILED A CLAIM IN THE BANKRUPTCY PROCEEDING, ITS RIGHTS
BECAME LIMITED TO THE RECOVERY OF UNPAID SUMS ALLOWED BY THE TRUSTEE,
NOT INCLUDING POST-PETITION INTEREST.  THIS ARGUMENT IS BASED ON SEC.
6873(A) OF THE INTERNAL REVENUE CODE OF 1954, WHICH PROVIDES: 

"ANY PORTION OF A CLAIM FOR TAXES ALLOWED IN  ...  ANY PROCEEDING
UNDER THE BANKRUPTCY ACT WHICH IS UNPAID SHALL BE PAID BY THE TAXPAYER
UPON NOTICE AND DEMAND FROM THE SECRETARY OR HIS DELEGATE AFTER THE
TERMINATION OF SUCH PROCEEDING." 

WE FIND NO INDICATION IN THE WORDING OR HISTORY OF SEC. 6873(A) THAT
THE SECTION WAS MEANT TO LIMIT THE GOVERNMENT'S RIGHT TO CONTINUING
INTEREST ON AN UNDISCHARGED AND UNPAID TAX LIABILITY.  NOR IS
PETITIONER AIDED BY THE NOW-FAMILIAR PRINCIPLE THAT ONE MAIN PURPOSE OF
THE BANKRUPTCY ACT IS TO LET THE HONEST DEBTOR BEGIN HIS FINANCIAL LIFE
ANEW.  AS THE COURT OF APPEALS NOTED, SEC. 17 IS NOT A COMPASSIONATE
THAT CERTAIN PROBLEMS - E.G., THOSE OF FINANCING GOVERNMENT - OVERRIDE
THE VALUE OF GIVING THE DEBTOR A WHOLLY FRESH START.  (FN3)  CONGRESS
CLEARLY INTENDED THAT PERSONAL LIABILITY FOR UNPAID TAX DEBTS SURVIVE
BANKRUPTCY.  THE GENERAL HUMANITARIAN PURPOSE OF THE BANKRUPTCY ACT
PROVIDES NO REASON TO BELIEVE THAT CONGRESS HAD A DIFFERENT INTENTION
WITH REGARD TO PERSONAL LIABILITY FOR THE INTEREST ON SUCH DEBTS. 

FINALLY, PETITIONER URGES THAT WE CONSIDER THE PRESENT CASE IN LIGHT
OF THE DECISION IN NEW YORK V. SAPER, 336 U.S. 328.  AS TO CLAIMS
AGAINST THE TRUSTEE IN BANKRUPTCY, THE GENERAL RULE FOR LIQUIDATION OF
THE BANKRUPTCY ESTATE HAS LONG BEEN THAT A CREDITOR WILL BE ALLOWED
INTEREST ONLY TO THE DATE OF THE PETITION IN BANKRUPTCY.  SEXTON V.
DREYFUS, 219 U.S. 339.  IN NEW YORK V. SAPER, SUPRA, THIS COURT HELD
THAT THE GENERAL RULE APPLIED TO CLAIMS AGAINST THE TRUSTEE FOR TAXES
AS WELL AS FOR OTHER DEBTS.  BUT THE INSTANT CASE CONCERNS THE DEBTOR'S
PERSONAL LIABILITY FOR POST-PETITION INTEREST ON A DEBT FOR TAXES WHICH
SURVIVES BANKRUPTCY TO THE EXTENT THAT IT IS NOT PAID OUT OF THE
ESTATE.  PETITIONER ASSERTS THAT THE TRADITIONAL RULE WHICH DENIES POST
PETITION INTEREST AS A CLAIM AGAINST THE BANKRUPTCY ESTATE ALSO APPLIES
TO DISCHARGE THE DEBTOR FROM PERSONAL LIABILITY FOR SUCH INTEREST EVEN
IF THE UNDERLYING TAX DEBT IS NOT DISCHARGED BY SEC. 17.  WE HOLD THAT
IT DOES NOT SO APPLY. 

THE BASIC REASONS FOR THE RULE DENYING POST-PETITION INTEREST AS A
CLAIM AGAINST THE BANKRUPTCY ESTATE ARE THE AVOIDANCE OF UNFAIRNESS AS
BETWEEN COMPETING CREDITORS AND THE AVOIDANCE OF ADMINISTRATIVE
INCONVENIENCE.  (FN4) THESE REASONS ARE INAPPLICABLE TO AN ACTION
BROUGHT AGAINST THE DEBTOR PERSONALLY.  IN THE INSTANT CASE, COLLECTION
OF POST-PETITION INTEREST CANNOT DELAY PAYMENT FROM THE ESTATE UNDULY,
AND CANNOT DIMINISH THE ESTATE IN FAVOR OF HIGH INTEREST CREDITORS AT
THE EXPENSE OF OTHER CREDITORS.  IN NEW YORK V. SAPER, SUPRA, THE COURT
FOUND THE REASONS FOR THE TRADITIONAL RULE APPLICABLE AND HELD THAT
POST-PETITION INTEREST ON A CLAIM FOR TAXES WAS NOT TO BE ALLOWED
AGAINST THE BANKRUPTCY ESTATE.  HERE, WE FIND THE REASONS - AND THUS
THE RULE - INAPPLICABLE, AND WE HOLD THAT POST-PETITION INTEREST ON AN
UNPAID TAX DEBT NOT DISCHARGED BY SEC. 17 REMAINS, AFTER BANKRUPTCY, A
PERSONAL LIABILITY OF THE DEBTOR.  AFFIRMED. 

FN1  THE REMAINDER WAS DISTRIBUTED TO PETITIONER. 

FN2  SEE UNITED STATES V. MIGHELL, 273 F.2D 682 (C.A. 10TH CIR.
1959). 

FN3  ONE REASON FOR REFUSING TO MAKE TAXES DISCHARGEABLE IS THE
DESIRE TO PREVENT TAX EVASION.  SEE 83 CONG. REC. 9106 (1938). 

FN4  SEE AMERICAN IRON & STEEL MFG. CO. V. SEABOARD AIR LINE R. CO.,
233 U.S. 261, 266: 

"AND IT IS TRUE, AS HELD IN TREDEGAR CO. V. SEABOARD RY., 183 FED.
REP. 289, 290, THAT AS A GENERAL RULE, AFTER PROPERTY OF AN INSOLVENT
IS IN CUSTODIA LEGIS INTEREST THEREAFTER ACCRUING IS NOT ALLOWED ON
DEBTS PAYABLE OUT OF THE FUND REALIZED BY A SALE OF THE PROPERTY.  BUT
THAT IS NOT BECAUSE THE CLAIMS HAD LOST THEIR INTEREST-BEARING QUALITY
DURING THAT PERIOD, BUT IS A NECESSARY AND ENFORCED RULE OF
DISTRIBUTION, DUE TO THE FACT THAT IN CASE OF RECEIVERSHIPS THE ASSETS
ARE GENERALLY INSUFFICIENT TO PAY DEBTS IN FULL.  IF ALL CLAIMS WERE OF
EQUAL DIGNITY AND ALL BORE THE SAME RATE OF INTEREST, FROM THE DATE OF
THE RECEIVERSHIP TO THE DATE OF FINAL DISTRIBUTION, IT WOULD BE
IMMATERIAL WHETHER THE DIVIDEND WAS CALCULATED ON THE BASIS OF THE
PRINCIPAL ALONE OR OF PRINCIPAL AND INTEREST COMBINED.  BUT SOME OF THE
DEBTS MIGHT CARRY A HIGH RATE AND SOME A LOW RATE, AND HENCE INEQUALITY
WOULD RESULT IN THE PAYMENT OF INTEREST WHICH ACCRUED DURING THE DELAY
INCIDENT TO COLLECTING AND DISTRIBUTING THE FUNDS.  AS THIS DELAY WAS
THE ACT OF THE LAW, NO ONE SHOULD THEREBY GAIN AN ADVANTAGE OR SUFFER A
LOSS.  FOR THAT AND LIKE REASONS, IN CASE FUNDS ARE NOT SUFFICIENT TO
PAY CLAIMS OF EQUAL DIGNITY, THE DISTRIBUTION IS MADE ONLY ON THE BASIS
OF THE PRINCIPAL OF THE DEBT.  BUT THAT RULE DID NOT PREVENT THE
RUNNING OF INTEREST DURING THE RECEIVERSHIP; AND IF AS A RESULT OF GOOD
FORTUNE OR GOOD MANAGEMENT, THE ESTATE PROVED SUFFICIENT TO DISCHARGE
THE CLAIMS IN FULL, INTEREST AS WELL AS PRINCIPAL SHOULD BE PAID." 

SEE ALSO VANSTON BONDHOLDERS PROTECTIVE COMMITTEE V. GREEN, 329 U.S.
156, 164: 

"ACCRUAL OF SIMPLE INTEREST ON UNSECURED CLAIMS IN BANKRUPTCY WAS
PROHIBITED IN ORDER THAT THE ADMINISTRATIVE INCONVENIENCE OF CONTINUOUS
RECOMPUTATION OF INTEREST CAUSING RECOMPUTATION OF CLAIMS COULD BE
AVOIDED.  MOREOVER, DIFFERENT CREDITORS WHOSE CLAIMS BORE DIVERSE
INTEREST RATES OR WERE PAID BY THE BANKRUPTCY COURT ON DIFFERENT DATES
WOULD SUFFER NEITHER GAIN NOR LOSS CAUSED SOLELY BY DELAY."  BECAUSE
THE TRADITIONAL RULE RESTS UPON SUCH PRACTICAL CONSIDERATIONS, IT HAS
BEEN SUGGESTED THAT: 

"THE PRINCIPLE THAT INTEREST STOPS RUNNING FROM THE DATE OF THE
FILING OF THE PETITION IN BANKRUPTCY SHOULD BE UNDERSTOOD AS A RULE OF
LIQUIDATION PRACTICE RATHER THAN AS A RULE OF SUBSTANTIVE LAW."  3
COLLIER, BANKRUPTCY (14TH ED., 1961) 1858. 
..END :





PRESTON V. UNITED STATES 376 U.S. 364 


NO. 163.  ARGUED FEBRUARY 25, 1964.  - DECIDED MARCH 23, 1964.  - 305
F.2D 172, REVERSED AND REMANDED. 


PETITIONER AND TWO COMPANIONS, WHO HAD BEEN SEATED FOR SEVERAL HOURS
IN A PARKED CAR, WERE ARRESTED BY THE POLICE FOR VAGRANCY, SEARCHED FOR
WEAPONS, AND TAKEN TO THE POLICE STATION.  THE OFFICERS HAD THE CAR
TOWED TO A GARAGE, AND SOON THEREAFTER THEY WENT THEMSELVES TO THE
GARAGE AND FOR THE FIRST TIME SEARCHED THE CAR.  VARIOUS ARTICLES FOUND
IN THE CAR WERE LATER TURNED OVER TO FEDERAL AUTHORITIES AND USED AS
EVIDENCE IN A TRIAL IN FEDERAL COURT RESULTING IN PETITIONER'S
CONVICTION OF CONSPIRACY TO ROB A FEDERALLY INSURED BANK.  HELD:  THE
EVIDENCE OBTAINED IN THE SEARCH OF THE CAR WITHOUT A WARRANT WAS
INADMISSIBLE BECAUSE, BEING TOO REMOTE IN TIME OR PLACE TO BE TREATED
AS INCIDENTAL TO THE ARREST, IT FAILED TO MEET THE TEST OF
REASONABLENESS UNDER THE FOURTH AMENDMENT.  PP. 364-368. 

PRESTON V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER AND THREE OTHERS WERE CONVICTED IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY ON A CHARGE OF
CONSPIRACY TO ROB A FEDERALLY INSURED BANK IN VIOLATION OF 18 U.S.C.
SEC. 2113, THE CONVICTION HAVING BEEN BASED LARGELY ON EVIDENCE
OBTAINED BY THE SEARCH OF A MOTORCAR.  THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT AFFIRMED, REJECTING THE CONTENTIONS, TIMELY MADE IN THE
TRIAL AND APPELLATE COURTS, THAT BOTH THE ORIGINAL ARREST, ON A CHARGE
OF VAGRANCY, AND THE SUBSEQUENT SEARCH AND SEIZURE HAD VIOLATED THE
FOURTH AMENDMENT.  305 F.2D 172.  WE GRANTED CERTIORARI.  373 U.S.
931.  IN THE VIEW WE TAKE OF THE CASE, WE NEED NOT DECIDE WHETHER THE
ARREST WAS VALID, SINCE WE HOLD THAT THE SEARCH AND SEIZURE WAS NOT. 

THE POLICE OF NEWPORT, KENTUCKY, RECEIVED A TELEPHONE COMPLAINT AT 3
O'CLOCK ONE MORNING THAT "THREE SUSPICIOUS MEN ACTING SUSPICIOUSLY" HAD
BEEN SEATED IN A MOTORCAR PARKED IN A BUSINESS DISTRICT SINCE 10
O'CLOCK THE EVENING BEFORE.  FOUR POLICEMEN STRAIGHTAWAY WENT TO THE
PLACE WHERE THE CAR WAS PARKED AND FOUND PETITIONER AND TWO
COMPANIONS.  THE OFFICERS ASKED THE THREE MEN WHY THEY WERE PARKED
THERE, BUT THE MEN GAVE ANSWERS WHICH THE OFFICERS TESTIFIED WERE
UNSATISFACTORY AND EVASIVE.  ALL THREE MEN ADMITTED THAT THEY WERE
UNEMPLOYED; ALL OF THEM TOGETHER HAD ONLY 25 CENTS.  ONE OF THE MEN
SAID THAT HE HAD BOUGHT THE CAR THE DAY BEFORE (WHICH LATER TURNED OUT
TO BE TRUE), BUT HE COULD NOT PRODUCE ANY TITLE.  THEY SAID THAT THEIR
REASON FOR BEING THERE WAS TO MEET A TRUCK DRIVER WHO WOULD PASS
THROUGH NEWPORT THAT NIGHT, BUT THEY COULD NOT IDENTIFY THE COMPANY HE
WORKED FOR, COULD NOT SAY WHAT HIS TRUCK LOOKED LIKE, AND DID NOT KNOW
WHAT TIME HE WOULD ARRIVE.  THE OFFICERS ARRESTED THE THREE MEN FOR
VAGRANCY, SEARCHED THEM FOR WEAPONS, AND TOOK THEM TO POLICE
HEADQUARTERS.  THE CAR, WHICH HAD NOT BEEN SEARCHED AT THE TIME OF THE
ARREST, WAS DRIVEN BY AN OFFICER TO THE STATION, FROM WHICH IT WAS
TOWED TO A GARAGE.  SOON AFTER THE MEN HAD BEEN BOOKED AT THE STATION,
SOME OF THE POLICE OFFICERS WENT TO THE GARAGE TO SEARCH THE CAR AND
FOUND TWO LOADED REVOLVERS IN THE GLOVE COMPARTMENT.  THEY WERE UNABLE
TO OPEN THE TRUNK AND RETURNED TO THE STATION, WHERE A DETECTIVE TOLD
ONE OF THE OFFICERS TO GO BACK AND TRY TO GET INTO THE TRUNK.  THE
OFFICER DID SO, WAS ABLE TO ENTER THE TRUNK THROUGH THE BACK SEAT OF
THE CAR, AND IN THE TRUNK FOUND CAPS, WOMEN'S STOCKINGS (ONE WITH MOUTH
AND EYE HOLES), ROPE, PILLOW SLIPS, AN ILLEGALLY MANUFACTURED LICENSE
PLATE EQUIPPED TO BE SNAPPED OVER ANOTHER PLATE, AND OTHER ITEMS. 
AFTER THE SEARCH, ONE OF PETITIONER'S COMPANIONS CONFESSED THAT HE AND
TWO OTHERS - HE DID NOT NAME PETITIONER - INTENDED TO ROB A BANK IN
BERRY, KENTUCKY, A TOWN ABOUT 51 MILES FROM NEWPORT.  AT THIS, THE
POLICE CALLED THE FEDERAL BUREAU OF INVESTIGATION INTO THE CASE AND
TURNED OVER TO THE BUREAU THE ARTICLES FOUND IN THE CAR.  IT WAS THE
USE OF THESE ARTICLES, OVER TIMELY OBJECTIONS, WHICH RAISED THE FOURTH
AMENDMENT QUESTION WE HERE CONSIDER. 

THE AMENDMENT PROVIDES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

THE QUESTION WHETHER EVIDENCE OBTAINED BY STATE OFFICERS AND USED
AGAINST A DEFENDANT IN A FEDERAL TRIAL WAS OBTAINED BY UNREASONABLE
SEARCH AND SEIZURE IS TO BE JUDGED AS IF THE SEARCH AND SEIZURE HAD
BEEN MADE BY FEDERAL OFFICERS.  ELKINS V. UNITED STATES, 364 U.S. 206
(1960).  OUR CASES MAKE IT CLEAR THAT SEARCHES OF MOTORCARS MUST MEET
THE TEST OF REASONABLENESS UNDER THE FOURTH AMENDMENT BEFORE EVIDENCE
OBTAINED AS A RESULT OF SUCH SEARCHES IS ADMISSIBLE.  E.G., CARROLL V.
UNITED STATES, 267 U.S. 132 (1925); BRINEGAR V. UNITED, STATES, 338
U.S. 160 (1949).  COMMON SENSE DICTATES, OF COURSE, THAT QUESTIONS
INVOLVING SEARCHES OF MOTORCARS OR OTHER THINGS READILY MOVED CANNOT BE
TREATED AS IDENTICAL TO QUESTIONS ARISING OUT OF SEARCHES OF FIXED
STRUCTURES LIKE HOUSES.   FOR THIS REASON, WHAT MAY BE AN UNREASONABLE
SEARCH OF A HOUSE MAY BE REASONABLE IN THE CASE OF A MOTORCAR.  SEE
CARROLL V. UNITED STATES, SUPRA, 267 U.S., AT 153.  BUT EVEN IN THE
CASE OF MOTORCARS, THE TEST STILL IS, WAS THE SEARCH UNREASONABLE. 
THEREFORE WE MUST INQUIRE WHETHER THE FACTS OF THIS CASE ARE SUCH AS TO
FALL WITHIN ANY OF THE EXCEPTIONS TO THE CONSTITUTIONAL RULE THAT A
SEARCH WARRANT MUST BE HAD BEFORE A SEARCH MAY BE MADE. 

IT IS ARGUED THAT THE SEARCH AND SEIZURE WAS JUSTIFIED AS INCIDENTAL
TO A LAWFUL ARREST.  UNQUESTIONABLY, WHEN A PERSON IS LAWFULLY
ARRESTED, THE POLICE HAVE THE RIGHT, WITHOUT A SEARCH WARRANT, TO MAKE
A CONTEMPORANEOUS SEARCH OF THE PERSON OF THE ACCUSED FOR WEAPONS OR
FOR THE FRUITS OF OR IMPLEMENTS USED TO COMMIT THE CRIME.  WEEKS V.
UNITED STATES, 232 U.S. 383, 392 (1914); AGNELLO V. UNITED STATES, 269
U.S. 20, 30 (1925).  THIS RIGHT TO SEARCH AND SEIZE WITHOUT A SEARCH
WARRANT EXTENDS TO THINGS UNDER THE ACCUSED'S IMMEDIATE CONTROL,
CARROLL V. UNITED STATES, SUPRA, 267 U.S., AT 158, AND, TO AN EXTENT
DEPENDING ON THE CIRCUMSTANCES OF THE CASE, TO THE PLACE WHERE HE IS
ARRESTED, AGNELLO V. UNITED STATES, SUPRA, 269 U.S., AT 30; MARRON V.
UNITED STATES, 275 U.S. 192, 199 (1927); UNITED STATES V. RABINOWITZ,
339 U.S. 56, 61-62 (1950).  THE RULE ALLOWING CONTEMPORANEOUS SEARCHES
IS JUSTIFIED, FOR EXAMPLE, BY THE NEED TO SEIZE WEAPONS AND OTHER
THINGS WHICH MIGHT BE USED TO ASSAULT AN OFFICER OR EFFECT AN ESCAPE,
AS WELL AS BY THE NEED TO PREVENT THE DESTRUCTION OF EVIDENCE OF THE
CRIME - THINGS WHICH MIGHT EASILY HAPPEN WHERE THE WEAPON OR EVIDENCE
IS ON THE ACCUSED'S PERSON OR UNDER HIS IMMEDIATE CONTROL.  BUT THESE
JUSTIFICATIONS ARE ABSENT WHERE A SEARCH IS REMOTE IN TIME OR PLACE
FROM THE ARREST.  ONCE AN ACCUSED IS UNDER ARREST AND IN CUSTODY, THEN
A SEARCH MADE AT ANOTHER PLACE, WITHOUT A WARRANT, IS SIMPLY NOT
INCIDENT TO THE ARREST.  AGNELLO V. UNITED STATES, SUPRA, 269 U.S., AT
31.  HERE, WE MAY ASSUME, AS THE GOVERNMENT URGES, THAT, EITHER BECAUSE
THE ARRESTS WERE VALID OR BECAUSE THE POLICE HAD PROBABLE CAUSE TO
THINK THE CAR STOLEN, THE POLICE HAD THE RIGHT TO SEARCH THE CAR WHEN
THEY FIRST CAME ON THE SCENE.  BUT THIS DOES NOT DECIDE THE QUESTION OF
THE REASONABLENESS OF A SEARCH AT A LATER TIME AND AT ANOTHER PLACE. 
SEE STONER V. CALIFORNIA, POST, P. 483.  THE SEARCH OF THE CAR WAS NOT
UNDERTAKEN UNTIL PETITIONER AND HIS COMPANIONS HAD BEEN ARRESTED AND
TAKEN IN CUSTODY TO THE POLICE STATION AND THE CAR HAD BEEN TOWED TO
THE GARAGE.  AT THIS POINT THERE WAS NO DANGER THAT ANY OF THE MEN
ARRESTED COULD HAVE USED ANY WEAPONS IN THE CAR OR COULD HAVE DESTROYED
ANY EVIDENCE OF A CRIME - ASSUMING THAT THERE ARE ARTICLES WHICH CAN BE
THE "FRUITS" OR "IMPLEMENTS" OF THE CRIME OF VAGRANCY.  CF. UNITED
STATES V. JEFFERS, 342 U.S. 48, 51-52 (1951).  NOR, SINCE THE MEN WERE
UNDER ARREST AT THE POLICE STATION AND THE CAR WAS IN POLICE CUSTODY AT
A GARAGE, WAS THERE ANY DANGER THAT THE CAR WOULD BE MOVED OUT OF THE
LOCALITY OR JURISDICTION.  SEE CARROLL V. UNITED STATES, SUPRA, 267
U.S., AT 153.  WE THINK THAT THE SEARCH WAS TOO REMOTE IN TIME OR PLACE
TO HAVE BEEN MADE AS INCIDENTAL TO THE ARREST AND CONCLUDE, THEREFORE,
THAT THE SEARCH OF THE CAR WITHOUT A WARRANT FAILED TO MEET THE TEST OF
REASONABLENESS UNDER THE FOURTH AMENDMENT, RENDERING THE EVIDENCE
OBTAINED AS A RESULT OF THE SEARCH INADMISSIBLE.  REVERSED AND
REMANDED. 
..END :


















HUMBLE PIPE LINE CO. V. WAGGONNER, SHERIFF 376 U.S. 369 


NO. 329.  ARGUED MARCH 4, 1964.  - DECIDED MARCH 23, 1964.* - 151 SO. 2D
575, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 354, NATURAL GAS & OIL CORP. ET AL. V. WAGGONNER,
SHERIFF, ALSO ON CERTIORARI TO THE SAME COURT. 


THE UNITED STATES BY DONATION FROM THE STATE OF LOUISIANA AND OTHER
STATE SOURCES ACQUIRED FEE SIMPLE TITLE TO A TRACT OF LAND FOR A
MILITARY BASE, STATE LAW PROVIDING THAT EXCEPT FOR CIVIL AND CRIMINAL
PROCESS THE UNITED STATES SHOULD HAVE THE "RIGHT OF EXCLUSIVE
JURISDICTION" OVER ANY LAND IT "PURCHASED OR CONDEMNED, OR OTHERWISE
ACQUIRED."  THE GOVERNMENT GRANTED PETITIONERS OIL AND GAS LEASES ON
PARTS OF THE LAND, AND THE STATE LEVIED AN AD VALOREM TAX ON THEIR
PIPELINES AND EQUIPMENT.  HELD:  THE UNITED STATES HAS EXCLUSIVE
JURISDICTION OVER THE LAND AND THE STATE HAS NO JURISDICTION TO LEVY
THE TAX.  PP. 370-374. 

(A)  THE UNITED STATES ACQUIRES EXCLUSIVE JURISDICTION OVER LAND
WHICH A STATE DONATES FOR A PURPOSE ENUMERATED IN ARTICLE I, SEC. 8,
CL. 17, OF THE CONSTITUTION, EVEN THOUGH IT DID NOT "PURCHASE" THE LAND
IN A NARROW TRADING SENSE.  FORT LEAVENWORTH R. CO. V. LOWE, 114 U.S.
525, FOLLOWED.  PP. 370-372. 

(B)  THE UNITED STATES DID NOT LOSE ITS EXCLUSIVE JURISDICTION BY
LEASING PORTIONS OF THE PROPERTY.  S.R.A., INC., V. MINNESOTA, 327 U.S.
558, DISTINGUISHED.  PP. 372-373. 

(C)  PAYMENTS BY THE GOVERNMENT TO STATE AGENCIES FOR PUBLIC UTILITY
SERVICES FOR THE BASE AND FOR EDUCATING CHILDREN OF SERVICEMEN LIVING
ON THE BASE WHOLLY FAIL TO SHOW A REJECTION BY THE GOVERNMENT OF
EXCLUSIVE JURISDICTION OVER THE BASE.  P. 373. 

(D)  ABANDONMENT OF EXCLUSIVE FEDERAL JURISDICTION CANNOT BE INFERRED
FROM A STANDARD PROVISION IN THE OIL AND GAS LEASES FOR PAYMENT BY THE
LESSEES OF STATE AND FEDERAL TAXES, EVEN IF THE FEDERAL AGENCY MAKING
THE LEASES HAD POWER TO WAIVE THE GOVERNMENT'S EXCLUSIVE JURISDICTION,
WHICH IS BY NO MEANS SURE.  P. 374. 

HUMBLE PIPE LINE CO. V. WAGGONNER, SHERIFF. 

CERTIORARI TO THE COURT OF APPEAL OF LOUISIANA, SECOND CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE COMMON QUESTION THESE CASES PRESENT IS WHETHER THE UNITED STATES
HAS SUCH EXCLUSIVE JURISDICTION OVER A 22,000-ACRE TRACT OF LAND IN
LOUISIANA ON WHICH THE BARKSDALE AIR FORCE BASE IS LOCATED THAT
LOUISIANA IS WITHOUT JURISDICTION TO LEVY AN AD VALOREM TAX ON
PRIVATELY OWNED PROPERTY SITUATED ON THE TRACT.  THE DISTRICT COURT AND
COURT OF APPEAL OF LOUISIANA UPHELD SUCH A TAX LAID ON CERTAIN OIL
DRILLING EQUIPMENT AND PIPELINES OWNED, USED AND KEPT BY THE
PETITIONERS ON THIS FEDERAL ENCLAVE.  151 SO. 2D 575.  THE SUPREME
COURT OF LOUISIANA DENIED REVIEW.  244 LA. 463, 467, 152 SO. 2D 561,
562.  WE GRANTED CERTIORARI TO CONSIDER THIS FEDERAL QUESTION IMPORTANT
TO THE UNITED STATES.  375 U.S. 878.  (FN1) 

THE UNITED STATES ACQUIRED A FEE SIMPLE TITLE TO THE ENTIRE TRACT IN
1930 BY DONATIONS FROM THE STATE OF LOUISIANA, (FN2) THE CITY OF
SHREVEPORT, AND THE BOSSIER LEVEE DISTRICT, A STATE AGENCY, FOR THE
PURPOSE OF USING THE LAND AS A MILITARY BASE.  THE GOVERNMENT HAS SPENT
HUGE AMOUNTS OF MONEY IN CREATING AND OPERATING AT BARKSDALE FIELD ONE
OF ITS MOST IMPORTANT MILITARY POSTS.  WHEN THE STATE AND ITS AGENCIES
GAVE THE LAND TO THE UNITED STATES, LOUISIANA LAW PROVIDED THAT THE
UNITED STATES SHOULD HAVE "THE RIGHT OF EXCLUSIVE JURISDICTION" OVER
ANY LAND IT "PURCHASED OR CONDEMNED, OR OTHERWISE ACQUIRED  ... FOR ALL
PURPOSES, EXCEPT THE ADMINISTRATION OF THE CRIMINAL LAWS  ...  AND THE
SERVICE OF CIVIL PROCESS OF SAID STATE THEREIN  ...  ."  (FN3)  ALL OF
THE PIPELINES OR EQUIPMENT IN QUESTION UPON WHICH THE STATE'S AD
VALOREM TAX HAS BEEN IMPOSED ARE, AS THE LOUISIANA DISTRICT COURT
STATED, "SITUATED ON THE UNITED STATES MILITARY RESERVATION KNOWN AS
'BARKSDALE AIR FORCE BASE' ...  ." 

ARTICLE I, SEC. 8, CL. 17, OF THE UNITED STATES CONSTITUTION PERMITS
THE UNITED STATES TO OBTAIN EXCLUSIVE JURISDICTION OVER LANDS WITHIN A
STATE.  IT PROVIDES: 

"THE CONGRESS SHALL HAVE POWER  ...  TO EXERCISE EXCLUSIVE
LEGISLATION IN ALL CASES WHATSOEVER ...  OVER ALL PLACES PURCHASED BY
THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE,
FOR THE ERECTION OF FORTS, MAGAZINES, ARSENALS, DOCKYARDS, AND OTHER
NEEDFUL BUILDINGS ...  ." 

LOUISIANA CONTENDS THAT THE UNITED STATES CANNOT "EXERCISE EXCLUSIVE
LEGISLATION" HERE BECAUSE THE LAND FOR THE MILITARY BASE WAS DONATED,
NOT "PURCHASED" WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION.  WE
CANNOT AGREE TO SUCH A CONSTRICTED READING OF THAT PROVISION. 
LOUISIANA CONCEDES THAT, AS WE POINTED OUT IN OUR RECENT HOLDING IN
PAUL V. UNITED STATES, 371 U.S. 245, 264, THE GOVERNMENT COULD, WITH
THE STATE'S CONSENT, HAVE ACQUIRED EXCLUSIVE JURISDICTION BY CONDEMNING
THE LAND.  SEE ALSO JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 141
142.  THIS COMMON-SENSE READING OF THE CONSTITUTIONAL PROVISION SIMPLY
FOLLOWS THE INTERPRETATION GIVEN IT LONG AGO IN FORT LEAVENWORTH R. CO.
V. LOWE, 114 U.S. 525, 538: 

"THE ESSENCE OF THAT PROVISION IS THAT THE STATE SHALL FREELY CEDE
THE PARTICULAR PLACE TO THE UNITED STATES FOR ONE OF THE SPECIFIC AND
ENUMERATED OBJECTS." 

IN ACCORDANCE WITH THIS CONSTRUCTION THE COURT IN THAT CASE WENT ON
TO EMPHASIZE THAT ALTHOUGH THE UNITED STATES HAD NOT "PURCHASED" FORT
LEAVENWORTH IN THE NARROW TRADING SENSE OF THE TERM, THE CRUCIAL
QUESTION WAS WHETHER KANSAS HAD CEDED EXCLUSIVE JURISDICTION OVER THE
FORT.  LIKEWISE, WE HOLD HERE THAT UNDER ART. I, SEC. 8, CL. 17, THE
UNITED STATES ACQUIRED EXCLUSIVE JURISDICTION WHEN THE LAND WAS CEDED
TO IT WITH CONSENT OF THE STATE (EXCEPT FOR THE STATE'S EXPRESS
RESERVATION AS TO CIVIL AND CRIMINAL PROCESS) JUST AS IF THE UNITED
STATES HAD ACQUIRED ITS TITLE BY NEGOTIATION AND PAYMENT OF A MONEY
CONSIDERATION. 

RELYING ON THE FACT THAT THE UNITED STATES HAS LEASED THE RIGHT TO
EXPLOIT PARTS OF THE RESERVATION FOR OIL AND GAS AND FOR AN OIL
PIPELINE, LOUISIANA CONTENDS THAT THE FEDERAL GOVERNMENT HAS THEREBY
LOST ITS POWER TO EXERCISE EXCLUSIVE JURISDICTION OVER THOSE PARTS OF
THE AREA.  WE CANNOT AGREE.  WE DID HOLD IN S.R.A., INC. V. MINNESOTA,
327 U.S. 558, THAT WHERE THE UNITED STATES, WHILE RETAINING WHAT WAS IN
SUBSTANCE A MORTGAGE, HAD SOLD LAND AND BUILDINGS FORMERLY USED FOR
GOVERNMENTAL PURPOSES IT THEREBY IN EFFECT SURRENDERED ITS FORMER
EXCLUSIVE JURISDICTION, LEAVING THAT PROPERTY TAXABLE BY THE STATE. 
BUT THAT CASE DOES NOT CONTROL THE PRESENT SITUATION, FOR HERE THE
GOVERNMENT CONTINUES TO HOLD ALL THE LAND SUBJECT TO ITS PRIMARY
JURISDICTION AND CONTROL.  (FN4)  THIS COURT HAS PREVIOUSLY HELD THAT
EXCLUSIVE FEDERAL JURISDICTION WAS NOT LOST EITHER BY LEASE OF PROPERTY
FOR COMMERCIAL PURPOSES WITHIN AN ENCLAVE, ARLINGTON HOTEL CO. V. FANT,
278 U.S. 439, OR BY CONVEYING A RIGHT OF WAY TO A RAILROAD ACROSS A
RESERVATION, UNITED STATES V. UNZEUTA, 281 U.S. 138.  AND IN HOLDING
THAT EXCLUSIVE JURISDICTION WAS NOT LOST OVER A PART OF A RESERVATION
USED FOR FARMING, THIS COURT RECOGNIZED THE RESPONSIBILITY OF THE
EXECUTIVE DEPARTMENT OF THE GOVERNMENT TO DETERMINE WHAT LAND IT WILL
ACQUIRE AND HOLD FOR MILITARY PURPOSES.  BENSON V. UNITED STATES, 146
U.S. 325, 331.  THERE IS NO EVIDENCE HERE WHICH WOULD JUSTIFY A COURT
IN DECIDING THAT THE GOVERNMENT DOES NOT NEED TO KEEP ALL OF THIS TRACT
INTACT, READY FOR USE WHEN NEEDED FOR THE HIGHLY IMPORTANT MILITARY
PURPOSES TO WHICH IT HAS BEEN DEDICATED. 

LOUISIANA FURTHER CONTENDS THAT THIS RECORD SHOWS THAT THE GOVERNMENT
DID NOT INTEND TO ACCEPT EXCLUSIVE JURISDICTION HERE.  IT IS THE
ESTABLISHED RULE THAT A GRANT OF JURISDICTION BY A STATE TO THE FEDERAL
GOVERNMENT NEED NOT BE ACCEPTED AND THAT A REFUSAL TO ACCEPT MAY BE
PROVED BY EVIDENCE.  ATKINSON V. STATE TAX COMM'N, 303 U.S. 20, 23;
SILAS MASON CO. V. TAX COMM'N, 302 U.S. 186, 207-209.  THE STATE'S
CONTENTION IS BASED CHIEFLY ON A STATEMENT THAT BARKSDALE AIR FORCE
BASE BUYS PUBLIC UTILITY SERVICES FROM THE STATE OR A STATE
INSTRUMENTALITY AT ITS GATE AND PAYS TO THE STATE'S SCHOOL SYSTEM A PER
CAPITA CHARGE FOR EACH CHILD OF A SERVICEMAN ATTENDING THE STATE'S
SCHOOLS.  WE THINK THESE CIRCUMSTANCES WHOLLY FAIL TO SHOW A REJECTION
BY THE GOVERNMENT OF THE STATE'S CESSION OF EXCLUSIVE JURISDICTION OVER
THE BASE.  (FN5)  NOR DO WE THINK IT POSSIBLE TO FIND A REFUSAL OR AN
ABANDONMENT OF EXCLUSIVE FEDERAL JURISDICTION FROM THE FACT THAT THE
OIL AND GAS LEASES PROVIDED THAT THE COMPANIES SHOULD "PAY WHEN DUE,
ALL TAXES LAWFULLY ASSESSED AND LEVIED UNDER THE LAWS OF THE STATE OR
THE UNITED STATES UPON IMPROVEMENTS, OIL AND GAS PRODUCED FROM THE
LANDS HEREUNDER, OR OTHER RIGHTS, PROPERTY, OR ASSETS OF THE LESSEE
...  ."  IT IS BY NO MEANS SURE THAT A FEDERAL AGENCY MAKING AN OIL AND
GAS LEASE COULD WAIVE THE GOVERNMENT'S EXCLUSIVE JURISDICTION OVER A
FEDERAL RESERVATION, BUT EVEN IF IT COULD WE SEE NOTHING MORE IN THIS
STANDARD CONTRACTUAL PROVISION THAN A PRECAUTION ON THE GOVERNMENT'S
PART TO GUARD ITSELF AGAINST LIABILITY FOR PAYMENT OF ANY STATE TAXES
"LAWFULLY ASSESSED" AGAINST ITS LESSEE.  CF. UNITED STATES V. COUNTY OF
ALLEGHENY, 322 U.S. 174, 189.  A CONTRACTUAL REQUIREMENT TO PAY TAXES
LAWFULLY OWING, STANDING ALONE, CANNOT BE READ AS MANIFESTING A PURPOSE
OF THE GOVERNMENT TO ABANDON EXCLUSIVE JURISDICTION TO LEVY CERTAIN
TAXES WITHIN A FEDERAL ENCLAVE IT HAS SPECIFICALLY SO STATED, AS IN THE
BUCK ACT, 4 U.S.C. SECS. 104-110. 

THE JUDGMENTS ARE REVERSED AND THE CASES REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  NO ISSUE CONCERNING IMMUNITY OF FEDERAL INSTRUMENTALITIES FROM
STATE TAXATION, APART FROM THE QUESTION OF LACK OF STATE JURISDICTION
TO TAX WITHIN A FEDERAL ENCLAVE, HAS BEEN RAISED HERE. 

FN2  ACT NO. 4, LOUISIANA LEGISLATURE, 1930. 

FN3  ACT NO. 12, LOUISIANA LEGISLATURE, 1892, SUBSEQUENTLY AMENDED BY
ACT NO. 31, LOUISIANA LEGISLATURE, 1942, LA. REV. STAT. 1950, TIT. 52,
C. 1, SEC. 1.  THE DEED TO THE UNITED STATES WAS FOR A FEE SIMPLE, AND
UNLIKE THAT IN PALMER V. BARRETT, 162 U.S. 399, THE AUTHORIZING STATUTE
CONTAINED NO CONDITIONS AND RESERVED ONLY "THE ADMINISTRATION OF THE
CRIMINAL LAWS  ...  AND THE SERVICE OF CIVIL PROCESS." 

FN4  THE FACT THAT THE OIL AND GAS LEASES WERE ISSUED BY THE
DEPARTMENT OF THE INTERIOR RATHER THAN THE DEPARTMENT OF THE AIR FORCE
DOES NOT AFFECT THE EXCLUSIVE JURISDICTION OF THE UNITED STATES. 

FN5  BUT CF. INTERNATIONAL BUSINESS MACHINES CORP. V. OTT, 230 LA.
666, 701-702, 89 SO. 2D 193, 205-206. 
..END :

















A.L. MECHLING BARGE LINES V. UNITED STATES 376 U.S. 375 


NO. 58.  ARGUED FEBRUARY 18, 1964.  - DECIDED MARCH 23, 1964.* - 209 F.
SUPP. 744, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 59, BOARD OF TRADE OF THE CITY OF CHICAGO V.
UNITED STATES ET AL., ALSO ON APPEAL TO THE SAME COURT. 


THE INTERSTATE COMMERCE COMMISSION (ICC), AFTER A HEARING, ISSUED AN
ORDER PERMITTING APPELLEE RAILROAD TO DEPART FROM THE LONG- AND SHORT
HAUL RESTRICTIONS OF SEC. 4 OF THE INTERSTATE COMMERCE ACT.  THE ICC
REFUSED TO PASS ON:  THE CONTENTION OF THE APPELLANT BOARD OF TRADE
THAT THE PROPOSED RAIL RATES DISCRIMINATED AGAINST CHICAGO GRAIN
MERCHANTS AND PROCESSORS (SEC. 3(1) OF THE ACT); APPELLANT BARGE LINE'S
CONTENTION THAT THE RATES DISCRIMINATED BETWEEN CONNECTING CARRIERS
(SEC. 3(4) OF THE ACT); AND THE CLAIM THAT THE RATES WERE NOT JUST AND
REASONABLE (SEC. 1(5) OF THE ACT).  NOR DID THE ICC MAKE A DIRECT
FINDING, DESPITE APPELLANTS' INSISTENCE, THAT THE RAILROAD'S NEW RATE
STRUCTURE DID NOT VIOLATE THE NATIONAL TRANSPORTATION POLICY.  THE
DISTRICT COURT APPROVED THE ACTION OF THE COMMISSION.  HELD:
APPELLANTS' CLAIMS THAT THE PROPOSED RAIL RATES VIOLATED OTHER SECTIONS
OF THE ACT AND WERE CONTRARY TO THE NATIONAL TRANSPORTATION POLICY WERE
RIPE FOR ADJUDICATION AND SHOULD HAVE BEEN CONSIDERED IN THE SEC. 4
PROCEEDING; THE ICC'S FAILURE TO CONSOLIDATE THE ISSUES AND REACH THE
MERITS OF THE SEVERAL CONTENTIONS COULD ONLY RESULT IN MANIFEST
INEQUITIES, POTENTIAL WINDFALLS TO SOME CARRIERS, AND CONTRAVENTION OF
THE NATIONAL TRANSPORTATION POLICY.  PP. 376-388. 

A.L. MECHLING BARGE LINES, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS DIRECT APPEAL FROM A FINAL JUDGMENT OF A THREE-JUDGE DISTRICT
COURT IS BUT ANOTHER EPISODE IN THE LONG AND CONTINUED STRUGGLE BETWEEN
THE RAILROADS AND COMPETING BARGE LINES.  IN 1960 THE INTERSTATE
COMMERCE COMMISSION ISSUED AN ORDER PERMITTING A DEPARTURE FROM THE
LONG- AND SHORT-HAUL PROVISION OF SEC. 4 OF THE INTERSTATE COMMERCE
ACT.  (FN1) 310 I.C.C. 437.  THIS ORDER PERMITTED THE NEW YORK CENTRAL
AND CONNECTING CARRIERS TO INAUGURATE A RATE STRUCTURE ON ITS BELT LINE
WEST OF KANKAKEE, ILLINOIS, TO EASTERN DESTINATIONS UNDER WHICH LOWER
RATES WERE CHARGED FOR SOME LONG HAULS THAN FOR SHORTER ONES ON THE
SAME ROUTE.  THE DISTRICT COURT APPROVED THIS ACTION BY DISMISSING A
COMPLAINT TO SET ASIDE THE ORDER.  209 F. SUPP. 744.  WE NOTED PROBABLE
JURISDICTION, 374 U.S. 823, AND NOW REVERSE THE JUDGMENT WITH
DIRECTIONS THAT THE DISTRICT COURT VACATE THE ORDER OF THE COMMISSION
AND REMAND FOR FURTHER CONSIDERATION IN LIGHT OF THIS OPINION. 

             I. 

THE NEW YORK CENTRAL OPERATES THE KANKAKEE BELT LINE, WHICH EXTENDS
FROM SOUTH BEND, INDIANA, THROUGH KANKAKEE, ILLINOIS, AND WESTWARD TO
ZEARING, ILLINOIS.  THAT PORTION OF THE LINE WEST OF KANKAKEE TO
MORONTS, ILLINOIS, ROUGHLY PARALLELS THE ILLINOIS RIVER IN NORTHERN
ILLINOIS AND IS USED, IN LARGE PART, TO TRANSPORT CORN TOWARD EASTERN
MARKETS.  IN THE MID-1930'S, THE ILLINOIS RIVER WAS DEVELOPED FOR BARGE
MOVEMENT AND ALMOST ALL OF THE CORN TRAFFIC WAS DRAWN AWAY FROM THE
RAILS TO THE RIVER, CORN BEING MOVED TO CHICAGO BY BARGE AND THEN
SHIPPED TO THE EAST BY RAIL.  (FN2)  PRIOR TO 1957, BARGE RATES FROM
PORTS ALONG THE ILLINOIS RIVER TO CHICAGO AVERAGED 4.625 CENTS PER
HUNDRED POUNDS OF CORN.  (FN3)  FROM CHICAGO TO EASTERN DESTINATIONS,
RAIL RATES WERE 49 CENTS PER HUNDRED POUNDS OF CORN AND 49.5 CENTS FOR
CORN PRODUCTS, SO THAT THE TOTAL SHIPPING COST FROM PORTS ON THE
ILLINOIS RIVER TO THE EAST WAS 53.625 CENTS FOR CORN AND 54.125 CENTS
FOR CORN PRODUCTS.  AT THE SAME TIME, RATES FOR SHIPPING CORN VIA ALL
RAIL ROUTES FROM ORIGINS ON THE BELT LINE TO EASTERN MARKETS AVERAGED
72 CENTS FOR CORN AND 72.5 CENTS FOR CORN PRODUCTS, COMPUTED EITHER AS
THROUGH RATES OR AS A COMBINATION OF A 23 CENT RAIL RATE TO CHICAGO AND
THE 49 CENT OR 49.5 CENT RATE FROM CHICAGO TO THE EAST. 

THE RAILROADS CHOSE TO MEET THE BARGE COMPETITION BY ESTABLISHING A
NEW RATE STRUCTURE ON DECEMBER 15, 1956, WITH A PROPORTIONAL RATE (FN4)
FOR RAIL SHIPMENTS OF CORN TO KANKAKEE WHICH WAS COMPETITIVE WITH THE
BARGE RATE TO CHICAGO.  THE RAILROADS CONTINUED THE REGULAR RATES FOR
TRANSPORTATION OF CORN TO KANKAKEE FROM POINTS ON THE BELT LINE BUT
ALLOWED CREDIT ON RESHIPMENT FROM KANKAKEE TO EASTERN POINTS WHICH
RESULTED IN A NET RATE OF 6 CENTS (FN5) FOR TRANSPORTATION FROM BELT
LINE POINTS TO KANKAKEE.  THE 6 CENT PROPORTIONAL RATE APPLIES ONLY IF
THE CORN IS MILLED IN TRANSIT AND ONLY IF IT IS RESHIPPED TO THE EAST. 
BECAUSE OF THE CREDIT, THE RESULTING RATE SYSTEM FAVORS EASTBOUND
SHIPMENTS OF CORN FROM BELT LINE POINTS WEST OF KANKAKEE OVER SIMILAR
SHIPMENTS VIA THE SAME ROUTE STARTING AT KANKAKEE.  FOR THIS REASON THE
RATE STRUCTURE VIOLATES THE LONG- AND SHORT-HAUL PROHIBITION OF SEC. 4
OF THE ACT AND THE RAILROADS HAD TO APPLY FOR AUTHORITY FOR FOURTH
ENTERED AUTHORIZING THE FILING AND IMMEDIATE APPLICATION OF THE RATES
BUT NOT APPROVING THEM, "ALL SUCH RATES BEING SUBJECT TO COMPLAINT,
INVESTIGATION AND CORRECTION IF IN CONFLICT WITH ANY PROVISION OF THE
INTERSTATE COMMERCE ACT."  THE APPLICATION WAS SET DOWN FOR HEARING,
BUT THE COMMISSION DID NOT EXERCISE ITS POWER TO ENTER INTO A GENERAL
INVESTIGATION OF THE LAWFULLNESS OF THE RATES UNDER SEC. 15(1) OR SEC.
15(7) OF THE ACT, 41 STAT. 484-487, AS AMENDED, 49 U.S.C. SECS. 15(1),
15(7).  NOR DID THE APPELLANTS FILE A FORMAL COMPLAINT UNDER SEC. 13 OF
THE ACT, 24 STAT. 383-384, AS AMENDED, 49 U.S.C. SEC. 13, ASSAILING THE
LAWFULLNESS OF THE RATES. 

SUBSEQUENTLY THE EXAMINER DENIED SEC. 4 RELIEF BECAUSE BELT LINE
RATES TO KANKAKEE WERE LESS THAN THE OUT-OF-POCKET COST AND WERE "LOWER
THAN NECESSARY TO MEET THE BARGE COMPETITION."  (FN6)  THE COMMISSION
REVERSED, HOLDING THAT THE PROPORTIONAL RATE FROM ORIGINS ALONG THE
KANKAKEE BELT LINE TO KANKAKEE "HAS NO INDEPENDENT EXISTENCE, BUT IS AN
INTEGRAL PART OF THE RATE WHICH APPLIES ON THE THROUGH TRANSPORTATION
FROM BELT ORIGIN" (FN7) TO THE EAST.  THE COMMISSION FOUND THAT THE
THROUGH COMBINATION RATE WAS COMPENSATORY AND THAT SINCE THE BARGES
ATTRACTED THE CORN GROWN ADJACENT TO THE RIVER AND THE RAILS ATTRACTED
THAT ALONG THE BELT LINE, THE RATES WERE NOT LOWER THAN NECESSARY TO
MEET THE BARGE RATES AND DID NOT CONSTITUTE DESTRUCTIVE COMPETITION. 

THE CHICAGO BOARD OF TRADE, WHICH HAD INTERVENED IN THE PROCEEDING,
CHARGED THAT THE RATES VIOLATED SEC. 3(1) OF THE ACT (FN8) (AS WELL AS
SEC. 4) BECAUSE THEY DISCRIMINATED AGAINST CHICAGO GRAIN MERCHANTS AND
PROCESSORS.  THE COMMISSION REFUSED TO PASS UPON THE QUESTION AS NOT
BEING RELEVANT TO A SEC. 4 PROCEEDING.  NOR DID THE COMMISSION CONSIDER
MECHLING'S CONTENTION THAT THE RATES VIOLATED SEC. 3(4) OF THE ACT
(FN9) BECAUSE THEY DISCRIMINATED BETWEEN CONNECTING CARRIERS.  OTHER
OBJECTIONS THAT THE RATES VIOLATED SEC. 1(5) OF THE ACT (FN10) AS NOT
BEING JUST AND REASONABLE WERE LIKEWISE REFUSED CONSIDERATION.  WHILE
THE COMMISSION FOUND THAT THE RAILROAD'S ACTION WAS NOT A COMPETITIVELY
DESTRUCTIVE PRACTICE, IT MADE NO DIRECT FINDING THAT THE ACTION DID NOT
VIOLATE THE NATIONAL TRANSPORTATION POLICY, (FN11) DESPITE THE
APPELLANTS' INSISTENCE THAT IT DID. 

THE DISTRICT COURT APPROVED THE COMMISSION'S ACTION IN ALL RESPECTS
AND DISMISSED THE COMPLAINT, HOLDING "THAT THE ORDER IN QUESTION WAS
WITHIN THE STATUTORY POWER OF THE COMMISSION, THAT IT IS SUPPORTED BY
FINDINGS AND CONCLUSIONS BASED ON SUBSTANTIAL EVIDENCE, AND THAT NO
PREJUDICIAL ERROR OCCURRED IN THE HEARINGS BEFORE THE EXAMINER AND
COMMISSION."  209 F. SUPP., AT 749. 

WE HAVE CONCLUDED THAT THERE IS ERROR IN THE HOLDING IN TWO RESPECTS:
(1) THE COMMISSION SHOULD HAVE PASSED UPON THE QUESTIONS RAISED AND
EVIDENCE OFFERED THAT THE RATES VIOLATED OTHER SECTIONS OF THE ACT; (2)
THE COMMISSION ERRED IN FAILING TO SPECIFICALLY CONSIDER AND PASS UPON
THE QUESTION OF WHETHER THE RATES VIOLATED THE NATIONAL TRANSPORTATION
POLICY. 

                             II. 

CONTENTIONS WERE MADE AND PROOF WAS OFFERED BY THE CHICAGO BOARD OF
TRADE OF DISCRIMINATORY VIOLATIONS OF SEC. 3(1) OF THE ACT, ESPECIALLY
DISCRIMINATION AGAINST WHOLE CORN BY THE MILLING-IN-TRANSIT
LIMITATION.  UNDER THE CONCLUSION OF THE EXAMINER THAT THE FOURTH
THE SEC. 3(1) CONTENTION.  HOWEVER, WHEN THE COMMISSION TOOK THE
OPPOSITE VIEW ON THE SEC. 4 APPLICATION, THE CLAIM UNDER SEC. 3(1) WAS
RIPE FOR DECISION.  THE COMMISSION FOUND THAT "ALTHOUGH THE NEW YORK
CENTRAL INTENDS TO REMOVE THE MILLING-IN-TRANSIT LIMITATION, THESE
ISSUES DO NOT DIRECTLY DEAL WITH THE FOURTH-SECTION PRINCIPLES HERE
INVOLVED, BUT ARE PROPERLY MATTERS WHICH MAY BE RAISED IN INVESTIGATION
OR COMPLAINT PROCEEDINGS."  310 I.C.C. 437, 451. 

LIKEWISE, APPELLANT MECHLING CLAIMS DISCRIMINATION AGAINST THE BARGE
LINES AT CHICAGO IN VIOLATION OF SEC. 3(4) OF THE ACT, WHICH PROHIBITS
CARRIERS FROM PRACTICING RATE DISCRIMINATION BETWEEN CONNECTING LINES,
INCLUDING COMMON CARRIERS BY WATER.  THE GIST OF THE GRIEVANCE IS THE
ASSERTION THAT THE NEW YORK CENTRAL RATE STRUCTURE RESULTS IN LOWER
RESHIPPING RATES FOR EX-RAIL CORN EASTBOUND FROM CHICAGO THAN FOR EX
BARGE CORN.  MECHLING URGES THAT THE COMMISSION SHOULD HAVE ALLOWED
FULL INQUIRY INTO THIS CONTENTION AND SHOULD HAVE DETERMINED WHETHER
SEC. 3(4) IS BEING VIOLATED. 

IN DEFENSE OF ITS POSITION THE COMMISSION SAYS THAT IT DOES NOT GRANT
RELIEF UNDER SEC. 4 WHEN THE RATES PROPOSED RESULT IN VIOLATIONS OF
OTHER SECTIONS OF THE ACT.  HOWEVER, THE COMMISSION DOES NOT BELIEVE
THAT THIS POLICY REQUIRES IT TO CONSIDER AND DECIDE, IN A FOURTH
HOW REMOTE.  CONTINUING, THE COMMISSION ARGUES THAT SINCE THE ATTACK ON
THE RATES WAS ON A PROPORTIONAL FACTOR, THE 6-CENT, AND NOT ON THE
THROUGH CHARGE, THESE OTHER CLAIMS OF UNLAWFULNESS WERE BEYOND THE
IMMEDIATE SEC. 4 ISSUES.  WE CANNOT AGREE THAT THE MECHANISM OF THE
RATE UNDER ATTACK PERMITS OF SUCH EASY DISMEMBERMENT.  INDEED, THERE IS
A DEFINITE TIE-IN THAT PREVENTS THE COMPARTMENTALIZATION OF THE
ELEMENTS GOING INTO THE COMBINATION.  THE 6 CENTS IS NOT A SEPARATE
CHARGE BUT IS THE RESULT OF THE RAILROAD'S COMBINATION RATE.  THE
SHIPPER IS CHARGED 23 CENTS FOR THE TRANSPORTATION OF CORN FROM POINTS
WEST TO KANKAKEE, WITH MILLING-IN-TRANSIT, AND IS ALLOWED A 17-CENT
CREDIT ON THE RATE FROM KANKAKEE TO THE EAST, EITHER DIRECT OR VIA
CHICAGO, ON THE TRANSPORTATION OF THE RESULTING CORN PRODUCTS.  THIS
COMBINATION RATE HAS A REAL IMPACT ON THE FREIGHT ORIGINATING ALONG THE
BELT LINE.  FURTHER, THE RATE IS NOT "REMOTE," AS IS SHOWN BY THE
UNDISPUTED STATEMENT OF COUNSEL AT ARGUMENT THAT THE BARGES HAVE LOST
53% OF THEIR CARRIAGE SINCE IT WAS MADE EFFECTIVE IN 1957. 

IF THE PROCEEDING IS SPLINTERED, CONTESTANTS WILL BE OBLIGED TO AWAIT
THE CONCLUSION OF SEC. 4 PROCEEDINGS BEFORE RAISING CLAIMS OF
VIOLATIONS UNDER OTHER SECTIONS OF THE ACT.  NOT ONLY WOULD THIS BE
POOR ADMINISTRATION BUT IT WOULD RESULT IN MANIFEST INEQUITIES AND
ALLOW POTENTIAL WINDFALLS TO SOME CARRIERS. 

MOREOVER, SUCH SPLINTERING APPEARS TO BE CONTRARY TO THE CONSISTENT
POLICY OF THE COMMISSION IN FOURTH-SECTION PROCEEDINGS.  OVER 50 YEARS
AGO THE COMMISSION SAID: 

"THE PROVISO AUTHORIZING THIS COMMISSION TO PERMIT EXCEPTIONS TO THE
GENERAL PROHIBITION OF  ... SECTION 4 IS NOT A GRANT OF ARBITRARY OR
ABSOLUTE POWER, BUT ITS EXERCISE MUST BE LIMITED AND CONDITIONED UPON
THE PRESENCE IN SPECIAL CASES OF CONDITIONS AND CIRCUMSTANCES WHICH
WOULD MAKE SUCH EXCEPTIONS LEGAL AND PROPER AND IN NO WISE ANTAGONISTIC
TO OTHER PROVISIONS OF THE ACT."  RAILROAD COMM'N OF NEVADA V. SOUTHERN
PAC. CO., 21 I.C.C. 329, 341 (1911). 

IN AT LEAST 10 SUBSEQUENT CASES, (FN12) AS WELL AS IN ITS ANNUAL
REPORTS, THE COMMISSION HAS RE-EMPHASIZED THE SAME PRINCIPLE.  SEE 34
I.C.C. ANN. REP. 47.  FURTHERMORE, THE APPLICATION OF ALL OF THE ACT'S
PROHIBITIONS AGAINST DISCRIMINATION "AS A WHOLE" FURTHERS THE PURPOSE
OF THE CONGRESS IN ITS ENACTMENT.  THE SENATE COMMITTEE ON INTERSTATE
COMMERCE ONCE STATED IT THIS WAY: 

"THE PROVISIONS OF THE  ...  INTERSTATE COMMERCE ACT ARE BASED UPON
THE THEORY THAT THE PARAMOUNT EVIL CHARGEABLE AGAINST THE OPERATION OF
THE TRANSPORTATION SYSTEM OF THE UNITED STATES AS NOW CONDUCTED IS
UNJUST DISCRIMINATION BETWEEN PERSONS, PLACES, COMMODITIES, OR
PARTICULAR DESCRIPTIONS OF TRAFFIC.  THE UNDERLYING PURPOSE AND AIM OF
THE MEASURE IS THE PREVENTION OF THESE DISCRIMINATIONS, BOTH BY
DECLARING THEM UNLAWFUL AND ADDING TO THE REMEDIES NOW AVAILABLE FOR
SECURING REDRESS AND ENFORCING PUNISHMENT  ...  ."  S. REP. NO. 46,
49TH CONG., 1ST SESS., 215-216 (1886). 

IN ACCORDANCE WITH THIS POLICY, THIS COURT DECLARED IN NEW YORK V.
UNITED STATES, 331 U.S. 284, 296 (1947), THAT "THE PRINCIPAL EVIL AT
WHICH THE INTERSTATE COMMERCE ACT WAS AIMED WAS DISCRIMINATION IN ITS
VARIOUS MANIFESTATIONS."  IN THE INTERMOUNTAIN RATE CASES, 234 U.S.
476, 485-486 (1914), THE COURT HELD THAT THE COMMISSION'S POWER TO
RELIEVE CARRIERS FROM THE REQUIREMENTS OF SEC. 4 DEPENDS UPON: 

"THE FACTS ESTABLISHED AND THE JUDGMENT OF THAT BODY IN THE EXERCISE
OF A SOUND LEGAL DISCRETION AS TO WHETHER THE REQUEST SHOULD BE GRANTED
COMPATIBLY WITH A DUE CONSIDERATION OF THE PRIVATE AND PUBLIC INTERESTS
CONCERNED AND IN VIEW OF THE PREFERENCE AND DISCRIMINATION CLAUSES OF
THE SECOND AND THIRD SECTIONS." 

THE FACT THAT THE LONG- AND SHORT-HAUL PROHIBITION OF SEC. 4 IS
PARTICULARIZED DOES NOT REQUIRE ANY DIFFERENT INTERPRETATION.  THE
CONGRESS MIGHT WELL HAVE CONCLUDED THAT SUCH A PRACTICE WAS SO
PERNICIOUS THAT IT REQUIRED SPECIFIC CONDEMNATION.  (FN13) 

FINALLY, BY HEARING AND DETERMINING, IN A SINGLE PROCEEDING, ALL
CHARGES OF DISCRIMINATION BEARING UPON THE FORMAL SEC. 4 APPLICATION,
THE COMMISSION WOULD FURTHER THE LEGISLATIVE PURPOSE AS DECLARED BY THE
NATIONAL TRANSPORTATION POLICY.  IT DIRECTED THAT THE INTERSTATE
COMMERCE ACT "SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW TO
CARRYING OUT" ITS PURPOSE "TO ENCOURAGE THE ESTABLISHMENT AND
MAINTENANCE OF REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT
UNJUST DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES  ...  ."  54 STAT. 899, 49 U.S.C.,
NOTE PRECEDING SEC. 1. 

WE DO NOT SAY THAT SUCH A RULE OF CONSOLIDATION IS AN ABSOLUTE.  MANY
OF THESE APPLICATIONS ARE FILED EACH YEAR AND THE COMMISSION SUMMARILY
DISPOSES OF THE MAJORITY OF THEM.  CERTAINLY WHERE ISSUES ARE NOT
RAISED OR BROUGHT TO ADVERSARY POSITION THERE IS NO NEED TO
CONSOLIDATE.  LIKEWISE, WHERE CONSOLIDATION WOULD INORDINATELY DELAY
THE SEC. 4 PROCEEDING, GOOD ADMINISTRATION WOULD REQUIRE ITS DENIAL. 
HOWEVER, IN THE INSTANT CASE, WE SEE NO PRACTICAL REASON WHY THE MERITS
OF THE SEVERAL CONTENTIONS SHOULD NOT HAVE BEEN REACHED.  (FN14)  TO
REQUIRE THE PARTIES TO BEGIN ANEW AND THUS SPAWN SEVERAL CASES, ALL OF
WHICH MIGHT HAVE BEEN EASILY DISPOSED OF IN THE SEC. 4 PROCEEDING,
NEEDLESSLY SUBJECTS APPELLANTS' CLAIMS TO THE RIGORS OF CIRCUMLOCUTION
SO DEADLY TO EFFECTIVE ADMINISTRATIVE AND JUDICIAL PROCESSES.  THIS
PROCEEDING IS NOW IN ITS SEVENTH YEAR - DURING ALL OF WHICH PERIOD THE
RATE UNDER ATTACK HAS BEEN IN FORCE - AND, STILL, BASIC QUESTIONS AS TO
THE VALIDITY OF THE RATE HAVE NOT BEEN CONSIDERED BY THE COMMISSION. 

III. 

THE EXAMINER ENTERED A FINDING, WHICH IS UNCONTESTED, THAT THE
PROPORTIONAL RATE HERE UNDER ATTACK DID NOT COVER THE OUT-OF-POCKET
COSTS OF THE RAILROAD.  IN SPITE OF THIS FINDING, THE COMMISSION GAVE
LITTLE, IF ANY, CONSIDERATION TO ANY RESULTING VIOLATION OF THE
NATIONAL TRANSPORTATION POLICY.   THERE IS NO ECONOMIC ANALYSIS, NO
EXPERT TESTIMONY, NO SUPPORTING DATA.  INSTEAD, THE COMMISSION FOUND
THAT THE THROUGH RATE, WHICH IT THOUGHT COMPENSATORY, RATHER THAN THE
BELT LINE PROPORTIONAL RATE, WAS CONTROLLING.  VIEWED IN THIS MANNER,
THE COMMISSION DETERMINED THAT THE RATE WAS NOT A DESTRUCTIVELY
COMPETITIVE PRACTICE.  HOWEVER, IT SUPPORTED THIS CONCLUSION ONLY WITH
PASSING REFERENCES TO THE FIRST-YEAR EXPERIENCE UNDER THE RATE OF TWO
ILLINOIS ELEVATORS AND 10 ILLINOIS RIVER PORTS.  ONE OF THE ELEVATORS
HAD EXPERIENCED NO ADVERSE EFFECTS FROM THE RATE WHILE THE OTHER HAD
LOST SOME GRAIN GROWN CLOSER TO THE BELT LINE.  THE 10 PORTS
EXPERIENCED ABOUT A 23% LARGER CORN SHIPMENT TO CHICAGO BUT THE
PROPORTION OF THIS INCREASE TO THE WHOLE GRAIN MOVEMENT IS NOT SHOWN. 
NEVERTHELESS, THE COMMISSION CONCLUDED FROM THIS "THAT WHILE CORN GROWN
ADJACENT TO THE BELT WAS ATTRACTED TO THE RAILS, THAT GROWN ADJACENT TO
THE RIVER REMAINED WITH THE BARGES.  THUS, IT IS EVIDENT THAT THE
PROPOSED RATES ARE NOT LOWER THAN NECESSARY TO MEET THE BARGE
COMPETITION."  310 I.C.C. 437, 452.  IN CONTRADICTION TO THIS WE HAVE
THE UNDENIED STATEMENT OF COUNSEL AT ARGUMENT, QUOTING STATISTICS OF
THE CHICAGO BOARD OF TRADE, THAT MUCH CORN TRAFFIC HAS BEEN DIVERTED
FROM BARGE TO RAIL SINCE THE RATE WENT INTO EFFECT, SO THAT THE BARGE
LINES CARRIED 53% LESS CORN TO CHICAGO IN 1963 THAN THEY DID IN 1957. 
THE FINDING THAT THE THROUGH RATE WAS COMPENSATORY DOES NOT ANSWER THE
QUESTION OF WHETHER THE DIRECT EFFECT OF THE BELOW-COST PROPORTIONAL
RATE ON THE BELT LINE TRAFFIC IS WHOLLY AT ODDS WITH THE NATIONAL
TRANSPORTATION POLICY.  PRIOR TO THE ESTABLISHMENT OF THE RATE, THE
BARGE LINES ENJOYED PRACTICALLY ALL OF THE TRAFFIC.  HOWEVER, THE
COMBINATION RATE APPEARS TO HAVE DIVERTED APPRECIABLE TRAFFIC FROM THE
BARGE LINES WITHOUT ANY APPARENT PROFIT TO THE RAILROAD.  INDEED, THE
COMMISSION HAS NOT INDICATED WHETHER ANY ADDITIONAL TRAFFIC RESULTED ON
THE RAIL HAUL BETWEEN CHICAGO OR KANKAKEE AND NEW YORK.  WE, THEREFORE,
DO NOT BELIEVE IT SUFFICIENT FOR THE COMMISSION TO APPROVE SUCH A RATE
SIMPLY ON A FINDING THAT THE THROUGH RATE IS REASONABLY COMPENSATORY
AND NO LOWER THAN NECESSARY TO MEET COMPETITION.  IN LIGHT OF THE FACTS
PRESENT HERE, THE CLAIM OF VIOLATION OF THE NATIONAL TRANSPORTATION
POLICY, RAISED AND INSISTED UPON BY THE APPELLANTS AT ALL STAGES OF THE
PROCEEDINGS, MUST BE SPECIFICALLY CONSIDERED. 

THE JUDGMENT IS, THEREFORE, REVERSED AND THE CASES ARE REMANDED TO
THE DISTRICT COURT WITH DIRECTIONS TO VACATE THE ORDER OF THE
COMMISSION AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  24 STAT. 380, AS AMENDED, 71 STAT. 292, 49 U.S.C. SEC. 4(1): 

(1)  IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THIS PART
OR PART III TO CHARGE OR RECEIVE ANY GREATER COMPENSATION IN THE
AGGREGATE FOR THE TRANSPORTATION OF PASSENGERS, OR OF LIKE KIND OF
PROPERTY, FOR A SHORTER THAN FOR A LONGER DISTANCE OVER THE SAME LINE
OR ROUTE IN THE SAME DIRECTION, THE SHORTER BEING INCLUDED WITHIN THE
LONGER DISTANCE, OR TO CHARGE ANY GREATER COMPENSATION AS A THROUGH
RATE THAN THE AGGREGATE OF THE INTERMEDIATE RATES SUBJECT TO THE
PROVISIONS OF THIS PART OR PART III, BUT THIS SHALL NOT BE CONSTRUED AS
AUTHORIZING ANY COMMON CARRIER WITHIN THE TERMS OF THIS PART OR PART
III TO CHARGE OR RECEIVE AS GREAT COMPENSATION FOR A SHORTER AS FOR A
LONGER DISTANCE: PROVIDED, THAT UPON APPLICATION TO THE COMMISSION AND
AFTER INVESTIGATION, SUCH CARRIER, IN SPECIAL CASES, MAY BE AUTHORIZED
BY THE COMMISSION TO CHARGE LESS FOR LONGER THAN FOR SHORTER DISTANCES
FOR THE TRANSPORTATION OF PASSENGERS OR PROPERTY, AND THE COMMISSION
MAY FROM TIME TO TIME PRESCRIBE THE EXTENT TO WHICH SUCH DESIGNATED
CARRIERS MAY BE RELIEVED FROM THE OPERATION OF THE FOREGOING PROVISIONS
OF THIS SECTION, BUT IN EXERCISING THE AUTHORITY CONFERRED UPON IT IN
THIS PROVISO, THE COMMISSION SHALL NOT PERMIT THE ESTABLISHMENT OF ANY
CHARGE TO OR FROM THE MORE DISTANT POINT THAT IS NOT REASONABLY
COMPENSATORY FOR THE SERVICE PERFORMED; AND NO SUCH AUTHORIZATION SHALL
BE GRANTED ON ACCOUNT OF MERELY POTENTIAL WATER COMPETITION NOT
ACTUALLY IN EXISTENCE:  PROVIDED FURTHER, THAT ANY SUCH CARRIER OR
CARRIERS OPERATING OVER A CIRCUITOUS LINE OR ROUTE MAY, SUBJECT ONLY TO
THE STANDARDS OF LAWFULNESS SET FORTH IN OTHER PROVISIONS OF THIS PART
OR PART III AND WITHOUT FURTHER AUTHORIZATION, MEET THE CHARGES OF SUCH
CARRIER OR CARRIERS OF THE SAME TYPE OPERATING OVER A MORE DIRECT LINE
OR ROUTE, TO OR FROM THE COMPETITIVE POINTS, PROVIDED THAT RATES SO
ESTABLISHED OVER CIRCUITOUS ROUTES SHALL NOT BE EVIDENCE ON THE ISSUE
OF THE COMPENSATORY CHARACTER OF RATES INVOLVED IN OTHER PROCEEDINGS:
AND PROVIDED FURTHER, THAT TARIFFS PROPOSING RATES SUBJECT TO THE
PROVISIONS OF THIS PARAGRAPH REQUIRING COMMISSION AUTHORIZATION MAY BE
FILED WHEN APPLICATION IS MADE TO THE COMMISSION UNDER THE PROVISIONS
HEREOF, AND IN THE EVENT SUCH APPLICATION IS APPROVED, THE COMMISSION
SHALL PERMIT SUCH TARIFFS TO BECOME EFFECTIVE UPON ONE DAY'S NOTICE." 

FN2  RESHIPMENT OF A COMMODITY WHICH HAS PREVIOUSLY BEEN SHIPPED BY
BARGE IS TERMED "EX-BARGE."  WHEN PRIOR TRANSPORTATION IS BY RAIL,
RESHIPMENT IS TERMED "EX-RAIL." 

FN3  RAISED TO 4.825 CENTS IN DECEMBER 1957. 

FN4  A RATE WHICH COVERS ONLY A PORTION OF THE TOTAL TRANSPORTATION
AND IS THEREFORE ONLY A PORTION OF THE TOTAL TRANSPORTATION CHARGE. 

FN5  THE NET RATE WAS 5 CENTS WHEN THE PLAN WAS ESTABLISHED, LATER 5
1/2 CENTS, AND NOW 6 CENTS. 

FN6  PROPOSED REPORT, SHEET 26. 

FN7  310 I.C.C. 437, 450. 

FN8  24 STAT. 380, AS AMENDED, 54 STAT. 902, 49 U.S.C. SEC. 3(1): 

"IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF THIS PART TO MAKE, GIVE, OR CAUSE ANY UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON, COMPANY,
FIRM, CORPORATION, ASSOCIATION, LOCALITY, PORT, PORT DISTRICT, GATEWAY,
TRANSIT POINT, REGION, DISTRICT, TERRITORY, OR ANY PARTICULAR
DESCRIPTION OF TRAFFIC, IN ANY RESPECT WHATSOEVER; OR TO SUBJECT ANY
PARTICULAR PERSON, COMPANY, FIRM, CORPORATION, ASSOCIATION, LOCALITY,
PORT, PORT DISTRICT, GATEWAY, TRANSIT POINT, REGION, DISTRICT,
TERRITORY, OR ANY PARTICULAR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR
UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER:
PROVIDED, HOWEVER, THAT THIS PARAGRAPH SHALL NOT BE CONSTRUED TO APPLY
TO DISCRIMINATION, PREJUDICE, OR DISADVANTAGE TO THE TRAFFIC OF ANY
OTHER CARRIER OF WHATEVER DESCRIPTION." 

FN9  24 STAT. 380, AS AMENDED, 54 STAT. 903-904, 49 U.S.C. SEC.
3(4): 

"ALL CARRIERS SUBJECT TO THE PROVISIONS OF THIS PART SHALL, ACCORDING
TO THEIR RESPECTIVE POWERS, AFFORD ALL REASONABLE, PROPER, AND EQUAL
FACILITIES FOR THE INTERCHANGE OF TRAFFIC BETWEEN THEIR RESPECTIVE
LINES AND CONNECTING LINES, AND FOR THE RECEIVING, FORWARDING, AND
DELIVERING OF PASSENGERS OR PROPERTY TO AND FROM CONNECTING LINES; AND
SHALL NOT DISCRIMINATE IN THEIR RATES, FARES, AND CHARGES BETWEEN
CONNECTING LINES, OR UNDULY PREJUDICE ANY CONNECTING LINE IN THE
DISTRIBUTION OF TRAFFIC THAT IS NOT SPECIFICALLY ROUTED BY THE
SHIPPER.  AS USED IN THIS PARAGRAPH THE TERM 'CONNECTING LINE' MEANS
THE CONNECTING LINE OF ANY CARRIER SUBJECT TO THE PROVISIONS OF THIS
PART OR ANY COMMON CARRIER BY WATER SUBJECT TO PART III." 

FN10  24 STAT. 379, AS AMENDED, 41 STAT. 475, 49 U.S.C. SEC. 1(5): 

"ALL CHARGES MADE FOR ANY SERVICE RENDERED OR TO BE RENDERED IN THE
TRANSPORTATION OF PASSENGERS OR PROPERTY  ...  AS AFORESAID, OR IN
CONNECTION THEREWITH, SHALL BE JUST AND REASONABLE, AND EVERY UNJUST
AND UNREASONABLE CHARGE FOR SUCH SERVICE OR ANY PART THEREOF IS
PROHIBITED AND DECLARED TO BE UNLAWFUL." 

FN11  NATIONAL TRANSPORTATION POLICY, 54 STAT. 899, 49 U.S.C., NOTE
PRECEDING SEC. 1: 

"IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF
THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES
OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT (CHAPTERS 1, 8,
12, 13 AND 19 OF THIS TITLE), SO ADMINISTERED AS TO RECOGNIZE AND
PRESERVE THE INHERENT ADVANTAGES OF EACH; TO PROMOTE SAFE, ADEQUATE,
ECONOMICAL, AND EFFICIENT SERVICE AND FOSTER SOUND ECONOMIC CONDITIONS
IN TRANSPORTATION AND AMONG THE SEVERAL CARRIERS; TO ENCOURAGE THE
ESTABLISHMENT AND MAINTENANCE OF REASONABLE CHARGES FOR TRANSPORTATION
SERVICES, WITHOUT UNJUST DISCRIMINATIONS, UNDUE PREFERENCES OR
ADVANTAGES, OR UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES; TO
COOPERATE WITH THE SEVERAL STATES AND THE DULY AUTHORIZED OFFICIALS
THEREOF; AND TO ENCOURAGE FAIR WAGES AND EQUITABLE WORKING CONDITIONS -
ALL TO THE END OF DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL
TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND RAIL, AS WELL AS OTHER
MEANS, ADEQUATE TO MEET THE NEEDS OF THE COMMERCE OF THE UNITED STATES,
OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE.  ALL OF THE
PROVISIONS OF THIS ACT (CHAPTERS 1, 8, 12, 13 AND 19 OF THIS TITLE),
SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE
ABOVE DECLARATION OF POLICY." 

FN12  TRANSCONTINENTAL CASES OF 1922, 74 I.C.C. 48, 71; COMMODITY
RATES ON LUMBER AND OTHER FOREST PRODUCTS, IN CARLOADS, FROM SOUTH
PACIFIC COAST TERRITORY TO POINTS IN CENTRAL FREIGHT ASSOCIATION
TERRITORY, 165 I.C.C. 561, 569; DIFFERENTIAL ROUTES TO CENTRAL
TERRITORY, 211 I.C.C. 403, 421; BITUMINOUS COAL TO BUFFALO, N.Y., 219
I.C.C. 554, 560; PIG IRON TO BUTLER, PA., 222 I.C.C. 1, 2; IRON AND
STEEL TO MINNESOTA, 231 I.C.C. 425, 428; IRON AND STEEL FROM MINNEQUA
TO KANSAS, NEBRASKA, AND SOUTH DAKOTA, 278 I.C.C. 163, 168-169; COAL
AND COAL BRIQUETS IN THE SOUTH, 289 I.C.C. 341, 376-377; PASSENGER
FARES, HELL GATE BRIDGE ROUTE, NEW YORK, N.Y., 296 I.C.C. 147, 153;
NEPHELINE SYENITE FROM ONTARIO, CANADA, TO THE EAST, 308 I.C.C. 561,
564-565. 

FN13  FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES:  THE NEED FOR
BETTER DEFINITION OF STANDARDS, 75 HARV. L. REV. 863, 884. 

FN14  ON MECHLING'S CLAIMED VIOLATION OF SEC. 3(4), PROOF ON CROSS
EXAMINATION WAS OFFERED BEFORE THE EXAMINER AND REFUSED AS BEING
RELEVANT ONLY IN A "DIVISION CASE."  THE REPORT OF THE COMMISSION IS
SILENT ON THE POINT.  IT WAS STATED BEFORE THE EXAMINER THAT THE RECORD
"MADE FAIRLY PLAIN" THE CONTENTION WHICH, IF TRUE, SHOULD PERMIT THE
COMMISSION TO PROCEED ON REMAND TO PASS UPON IT; IF NOT, THEN THE
RECORD SHOULD BE SUPPLEMENTED BY STIPULATION OR BY ADDITIONAL EVIDENCE
BEFORE THE EXAMINER, IF NECESSARY. 
..END :

















UNITED STATES V. J.B. MONTGOMERY, INC. 376 U.S. 389 


NO. 66.  ARGUED JANUARY 8, 1964.  - DECIDED MARCH 23, 1964.  - 206 F.
SUPP. 455, AFFIRMED. 


APPELLEE IS A CONTRACT CARRIER WHICH HAD BEEN AUTHORIZED TO TRANSPORT
A VARIETY OF COMMODITIES FOR SHIPPERS IN SPECIFIED BUSINESSES.  ACTING
UNDER SEC. 212(C) OF THE INTERSTATE COMMERCE ACT AS AMENDED IN 1957,
THE INTERSTATE COMMERCE COMMISSION (ICC) CONVERTED APPELLEE'S CONTRACT
CARRIER PERMIT INTO A COMMON CARRIER CERTIFICATE BUT IMPOSED THE
RESTRICTION, CHALLENGED BY APPELLEE IN THIS PROCEEDING, THAT SHIPMENTS
BE LIMITED TO THOSE "FROM, TO, OR BETWEEN WHOLESALE AND RETAIL OUTLETS"
AND STORES.  HELD:  THE ICC IN SANCTIONING THE CONVERSION OF APPELLEE'S
CONTRACT CARRIER PERMIT INTO A COMMON CARRIER CERTIFICATE HAD AUTHORITY
UNDER SEC. 212(C) TO IMPOSE ONLY SUCH RESTRICTIONS AS THOSE UNDER WHICH
THE CONTRACT CARRIER WAS OPERATING BEFORE THE CONVERSION; AND APPELLEE
MAY THEREFORE CONTINUE TO EXERCISE SUCH PRIVILEGES AS IT THEN ENJOYED. 
PP. 389-396. 

UNITED STATES ET AL. V. J.B. MONTGOMERY, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL TESTS THE VALIDITY OF AN ORDER OF THE INTERSTATE COMMERCE
ACT AS AMENDED IN 1957, 71 STAT. 411, 49 U.S.C. SEC. 312(C), (FN1)
CONVERTING THE APPELLEE'S CONTRACT CARRIER PERMIT INTO A COMMON CARRIER
CERTIFICATE BUT LIMITING ITS COVERAGE "TO MOVEMENTS FROM, TO, OR
BETWEEN OUTLETS OR OTHER FACILITIES OF PARTICULAR BUSINESSES OF THE
CLASS OF SHIPPERS WITH WHOM IT MAY NOW CONTRACT."  APPELLEE CONTENDS
THAT THIS LIMITATION VIOLATES THE MANDATE OF THE CONGRESS IN SEC.
212(C) THAT ANY CERTIFICATE SO ISSUED "SHALL AUTHORIZE THE
TRANSPORTATION, AS A COMMON CARRIER, OF THE SAME COMMODITIES BETWEEN
THE SAME POINTS OR WITHIN THE SAME TERRITORY AS AUTHORIZED IN THE
PERMIT."  THE COMMISSION ANSWERS THAT THE RESTRICTIONS ARE NECESSARY TO
MAINTAIN "SUBSTANTIAL PARITY" BETWEEN THE APPELLEE'S OLD AND NEW
OPERATIONS.  THE DISTRICT COURT HELD THE COMMISSION "WITHOUT STATUTORY
AUTHORITY TO IMPOSE THE RESTRICTIONS IN QUESTION" AND SET ASIDE THE
ORDER AND REMANDED THE CASE FOR FURTHER PROCEEDINGS.  206 F. SUPP. 455,
461.  PROBABLE JURISDICTION WAS NOTED.  372 U.S. 952.  WE AFFIRM THE
JUDGMENT. 

I. 

PRIOR TO 1957 APPELLEE OPERATED UNDER A CONTRACT CARRIER PERMIT
ORIGINALLY ISSUED IN 1943 UNDER THE "GRANDFATHER" CLAUSE CONTAINED IN
SEC. 209(A) OF THE MOTOR CARRIER ACT, 1935, 49 STAT. 543, 552.   (FN2)
IT PERMITTED CARRIAGE OF:  (1) SUCH COMMODITIES AS ARE USUALLY DEALT IN
BY WHOLESALE OR RETAIL HARDWARE AND AUTOMOBILE-ACCESSORY BUSINESS
HOUSES, AND IN CONNECTION THEREWITH, EQUIPMENT, MATERIALS AND SUPPLIES
USED IN THE CONDUCT OF SUCH BUSINESS; (2) SUCH COMMODITIES AS ARE
USUALLY DEALT IN, OR USED, BY MEAT, FRUIT, AND VEGETABLE PACKING
HOUSES; AND (3) SUCH COMMODITIES AS ARE USUALLY DEALT IN, OR USED, BY
WHOLESALE AND RETAIL DEPARTMENT STORES.  THE PERMIT CONTAINED A
"KEYSTONE RESTRICTION" (FN3) WHICH LIMITED APPELLEE TO TRANSPORTING
SUCH COMMODITIES ONLY UNDER CONTRACTS WITH PERSONS OPERATING THE
BUSINESSES SPECIFIED.  IT PERMITTED THE CARRIAGE OF A WIDE VARIETY OF
COMMODITIES WITHIN SPECIFIED TERRITORIES, WITHOUT LIMITATION OF
CONSIGNEE, BUT ONLY FOR THOSE SHIPPERS UNDER CONTRACT WITH APPELLEE AND
ENGAGED IN THE SPECIFIED BUSINESSES. 

IN 1957, AT THE BEHEST OF THE COMMISSION, THE CONGRESS AMENDED THE
STATUTORY DEFINITION OF A CONTRACT CARRIER, SEC. 203(A)(15) OF THE
INTERSTATE COMMERCE ACT, SO AS TO THEREAFTER READ: 

"THE TERM 'CONTRACT CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON WHICH
ENGAGES IN TRANSPORTATION BY MOTOR VEHICLE OF PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE, FOR COMPENSATION (OTHER THAN
TRANSPORTATION REFERRED TO IN PARAGRAPH (14) AND THE EXCEPTION
THEREIN), UNDER CONTINUING CONTRACTS WITH ONE PERSON OR A LIMITED
NUMBER OF PERSONS EITHER (A) FOR THE FURNISHING OF TRANSPORTATION
SERVICES THROUGH THE ASSIGNMENT OF MOTOR VEHICLES FOR A CONTINUING
PERIOD OF TIME TO THE EXCLUSIVE USE OF EACH PERSON SERVED OR (B) FOR
THE FURNISHING OF TRANSPORTATION SERVICES DESIGNED TO MEET THE DISTINCT
NEED OF EACH INDIVIDUAL CUSTOMER."  (FN4) 

IN ORDER TO PROTECT EXISTING CONTRACT CARRIER PERMITS, CONGRESS
ENACTED SEC. 212(C) WHICH, AS WE HAVE INDICATED, PROVIDED FOR THE
REVOCATION OF SUCH A PERMIT IN APPROPRIATE PROCEEDINGS BEFORE THE
COMMISSION AND THE ISSUANCE OF A COMMON CARRIER CERTIFICATE.  IN SO
DOING, HOWEVER, THE CONGRESS PROVIDED THAT THE RESULTING COMMON CARRIER
CERTIFICATE "SHALL AUTHORIZE THE TRANSPORTATION, AS A COMMON CARRIER,
OF THE SAME COMMODITIES BETWEEN THE SAME POINTS OR WITHIN THE SAME
TERRITORY AS AUTHORIZED IN THE PERMIT." 

IN 1958 THESE PROCEEDINGS WERE BEGUN UNDER THIS SECTION AND, AFTER
EXTENDED HEARINGS, THE EXAMINER FOUND THAT THE PERMIT SHOULD BE REVOKED
AND THE COMMON CARRIER CERTIFICATE ISSUED COVERING THE SAME COMMODITIES
AND WITHOUT RESTRICTIONS.  IN ADDITION HE RECOMMENDED THE INCLUSION OF
AUTHORITY FOR CARRIAGE OF "MATERIALS, EQUIPMENT, AND SUPPLIES USED BY
MANUFACTURERS OF RUBBER AND RUBBER PRODUCTS, FROM CHICAGO, AND POINTS
IN ILLINOIS WITHIN 100 MILES OF CHICAGO, TO DENVER  ...  ."  THE
COMMISSION ADOPTED THE LATTER RECOMMENDATION AND IT WAS NOT CONTESTED
IN THE DISTRICT COURT.  AS TO THE REMAINING AUTHORIZATIONS, THE
COMMISSION APPENDED TO THE RECOMMENDATIONS OF THE EXAMINER A
RESTRICTION AGAINST COMBINING OR "TACKING" APPELLEE'S VARIOUS OPERATING
RIGHTS IN ORDER TO RENDER A THROUGH SERVICE (LIKEWISE NOT CONTESTED),
AND ALSO SUBJECTED EACH GRANT OF AUTHORITY TO THE FOLLOWING
RESTRICTION: 

"RESTRICTION:  THE AUTHORITY GRANTED IMMEDIATELY ABOVE IS RESTRICTED
TO SHIPMENTS MOVING FROM, TO, OR BETWEEN WHOLESALE AND RETAIL OUTLETS,
...  ." 

THE VALIDITY OF THIS RESTRICTION IS THE SOLE CHALLENGE RAISED IN THIS
PROCEEDING. 

         II. 

THE COMMISSION CONTENDS THAT SEC. 212(C), READ IN THE LIGHT OF ITS
BACKGROUND, IS A "GRANDFATHER CLAUSE."  ITS PURPOSE, THEREFORE, IS
MERELY TO CONTINUE, WITHOUT EXPANDING, THE AUTHORITY OF THOSE CONTRACT
CARRIERS WHOSE OPERATIONS ARE LAWFUL UNDER UNITED STATES V. CONTRACT
STEEL CARRIERS, INC., 350 U.S. 409 (1956), BY REVOKING THEIR CONTRACT
CARRIER PERMITS AND ISSUING IN LIEU THEREOF COMMON CARRIER
CERTIFICATES.  THE COMMISSION CONCLUDES THAT, WHILE THE CONGRESS
SPECIFIED ONLY A CONTINUANCE OF THE COMMODITY AND TERRITORIAL
LIMITATIONS, CONGRESS ALSO INTENDED THAT THE EFFECTS OF THE "KEYSTONE
RESTRICTION" IN THE OLD PERMIT BE CARRIED FORWARD IN THE NEW ONE.  EVEN
IF THIS IS INCORRECT, THE COMMISSION SAYS THAT IT REMAINS FREE TO
IMPOSE THE RESTRICTION BY REASON OF ITS GENERAL POWER UNDER THE
INTERSTATE COMMERCE ACT TO CONFINE CARRIER OPERATIONS WITHIN
APPROPRIATE LIMITS. 

THE DIFFICULTY WITH THIS ARGUMENT IS THAT THE "KEYSTONE RESTRICTION"
UNDER WHICH APPELLEE OPERATED PERMITTED IT TO CARRY COMMODITIES "DEALT
IN, OR USED BY" CERTAIN BUSINESSES WITHOUT LIMITATION, EXCEPT THAT
APPELLEE WAS REQUIRED TO HAVE A CONTRACT WITH THE SHIPPER SO ENGAGED. 
ALTHOUGH THE COMMISSION HAS ELIMINATED THIS LAST REQUIREMENT BY
CERTIFICATING APPELLEE AS A COMMON CARRIER, THE RESTRICTION IT HAS
IMPOSED HERE LIMITS SHIPMENTS "TO SHIPMENTS MOVING FROM, TO, OR BETWEEN
WHOLESALE AND RETAIL OUTLETS" AND STORES.  APPELLEE INSISTS THAT THIS
RESTRICTION LIMITS ITS CARRIAGE IN THAT APPELLEE CANNOT DELIVER FROM A
SUPPLIER TO A CONSUMER, TO OR FROM A PUBLIC WAREHOUSE OR SHIP DOCK,
BETWEEN WAREHOUSES, TO CONSOLIDATION OR TRANSFER POINTS OR TO A LABORER
OR MODIFICATION AGENT.  THE RECORD DOES NOT SHOW WHETHER APPELLEE
EXERCISED THESE CLAIMED PRIVILEGES UNDER ITS CONTRACT CARRIER PERMIT. 
WE HOLD THAT IF IT DID ENJOY THEM OR ANY OTHERS THAT WE HAVE NOT
ENUMERATED, THEN IT IS ENTITLED TO HAVE THE SAME FREEDOM IN ITS COMMON
CARRIER CERTIFICATE. 

THE LEGISLATIVE HISTORY INDICATES THAT THE COMMISSION IN ITS
PRESENTATION TO THE CONGRESS ON SEC. 212(C) REPRESENTED THROUGH ITS
CHAIRMAN THAT THE LEGISLATION WOULD DISTURB NO PROPERTY RIGHTS OF THE
CONTRACT CARRIER.  INDEED, IT ASSERTED THAT SUCH CARRIERS WOULD HAVE
"GREATER OPPORTUNITY."  (FN5) MOREOVER, THE "KEYSTONE RESTRICTIONS"
RECEIVED THE ATTENTION OF THE CONGRESS.  IN THE SAME SENATE HEARINGS,
THE DIFFERENCE BETWEEN CONTRACT AND COMMON CARRIERS WAS MADE CLEAR,
I.E., WHILE THE FORMER WERE LIMITED IN THE "CHARACTER" OF THEIR
CARRIAGE TO THE TYPE OF COMMODITIES NAMED IN THEIR PERMITS, THEY WERE
NOT LIMITED TO PARTICULAR SHIPPERS.  COMMON CARRIERS, ON THE OTHER
HAND, WERE NOT LIMITED IN ANY WAY IN THEIR CERTIFICATED TERRITORIES. 
(FN6)  IT APPEARS TO US THAT CONGRESS INTENDED TO LEAVE THE CONVERTED
CONTRACT CARRIER IN AS GOOD A POSITION AS IT PREVIOUSLY ENJOYED.  UNDER
THE FACTS CLAIMED, THE COMMISSION HAS NOT DONE SO IN THIS CASE. 

WE DO NOT BELIEVE THAT APPELLEE WAIVED ITS RIGHTS BY NOT PROVING THAT
IT HAD EXERCISED THE CLAIMED PRIVILEGES UNDER ITS CONTRACT CARRIER
PERMIT.  THE PERMIT HAS NO RESTRICTION ON ITS FACE IN THIS REGARD, AND
SUCH PROOF WAS UNDERSTANDABLY NOT PRESENTED IN LIGHT OF THE
RECOMMENDATION OF THE EXAMINER THAT A COMMON CARRIER PERMIT INCLUDE NO
RESTRICTIONS WHATEVER.  AT THIS LATE DATE IT WOULD BE UNFAIR TO STRIP
APPELLEE OF ITS CLAIMED RIGHTS UPON THIS BASIS. 

NOR DO WE BELIEVE THAT THE COMMISSION CAN IMPOSE THE RESTRICTIONS ON
A RULE OF "SUBSTANTIAL PARITY" UNDER ITS GENERAL POWERS.  SINCE SEC.
212(C) SPECIFICALLY COMMANDS THAT THE COMMISSION "SHALL" AUTHORIZE THE
SAME CARRIAGE AS WAS INCLUDED IN THE CONTRACT CARRIER PERMIT, WE ARE
UNABLE TO PLACE SEC. 212(C) AUTHORITY UNDER THE GENERAL POWER OF OTHER
UNRELATED SECTIONS, SUCH AS SEC. 208, WHERE SPECIFIC POWER IS GRANTED
TO ASSURE "SUBSTANTIAL PARITY."  THE APPELLEE CARRIED ON CERTAIN
OPERATIONS UNDER ITS CONTRACT CARRIER PERMIT.  CONGRESS INTENDED THAT
THESE OPERATIONS BE CONTINUED UNDER THE COMMON CARRIER PERMIT. 

THE JUDGMENT OF THE DISTRICT COURT IS THEREFORE AFFIRMED.  ON REMAND
THE COMMISSION WILL BE FREE TO CONTEST APPELLEE'S FACTUAL CLAIMS AS TO
WHAT SERVICE IT PERFORMED UNDER ITS CONTRACT CARRIER PERMIT AND TO
LIMIT THE COMMON CARRIER CERTIFICATE TO SUCH ACTIVITY.  AFFIRMED. 

FN1  "THE COMMISSION SHALL EXAMINE EACH OUTSTANDING PERMIT AND MAY
WITHIN ONE HUNDRED AND EIGHTY DAYS AFTER  ...  (AUGUST 22, 1957)
INSTITUTE A PROCEEDING EITHER UPON ITS OWN INITIATIVE, OR UPON
APPLICATION OF A PERMIT HOLDER ACTUALLY IN OPERATION OR UPON COMPLAINT
OF AN INTERESTED PARTY, AND AFTER NOTICE AND HEARING REVOKE A PERMIT
AND ISSUE IN LIEU THEREOF A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY, IF IT FINDS, FIRST, THAT ANY PERSON HOLDING A PERMIT WHOSE
OPERATIONS ON ...  AUGUST 22, 1957 DO NOT CONFORM WITH THE DEFINITION
OF A CONTRACT CARRIER IN SECTION 203(A)(15) AS IN FORCE ON AND AFTER
...  AUGUST 22, 1957; SECOND, ARE THOSE OF A COMMON CARRIER; AND,
THIRD, ARE OTHERWISE LAWFUL.  SUCH CERTIFICATE SO ISSUED SHALL
AUTHORIZE THE TRANSPORTATION, AS A COMMON CARRIER, OF THE SAME
COMMODOTIES BETWEEN THE SAME POINTS OR WITHIN THE SAME TERRITORY AS
AUTHORIZED IN THE PERMIT."  71 STAT. 411. 

FN2  THIS PROVISION IS NOW SUBSTANTIALLY CONTAINED IN 49 U.S.C. SEC.
309(A)(1): 

"EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION AND IN SECTION 310A OF
THIS TITLE, NO PERSON SHALL ENGAGE IN THE BUSINESS OF A CONTRACT
CARRIER BY MOTOR VEHICLE IN INTERSTATE OR FOREIGN COMMERCE ON ANY
PUBLIC HIGHWAY OR WITHIN ANY RESERVATION UNDER THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES UNLESS THERE IS IN FORCE WITH RESPECT
TO SUCH CARRIER A PERMIT ISSUED BY THE COMMISSION, AUTHORIZING SUCH
PERSON TO ENGAGE IN SUCH BUSINESS: PROVIDED, THAT, SUBJECT TO SECTION
310 OF THIS TITLE, IF ANY SUCH CARRIER OR A PREDECESSOR IN INTEREST WAS
IN BONA FIDE OPERATION AS A CONTRACT CARRIER BY MOTOR VEHICLE ON JULY
1, 1935, OVER THE ROUTE OR ROUTES OR WITHIN THE TERRITORY FOR WHICH
APPLICATION IS MADE AND HAS SO OPERATED SINCE THAT TIME  ...  THE
COMMISSION SHALL ISSUE SUCH PERMIT, WITHOUT FURTHER PROCEEDINGS, IF
APPLICATION FOR SUCH PERMIT WAS MADE TO THE COMMISSION AS PROVIDED IN
PARAGRAPH (B) OF THIS SECTION AND WITHIN ONE HUNDRED AND TWENTY DAYS
AFTER OCTOBER 1, 1935  ...  ." 

FN3  THE PHRASE "KEYSTONE RESTRICTION" COMES FROM THE TITLE OF THE
PROCEEDING, KEYSTONE TRANSPORTATION CO. CONTRACT CARRIER APPLICATION,
19 M.C.C. 475.  SUCH RESTRICTIONS WERE APPROVED BY THIS COURT IN NOBLE
V. UNITED STATES, 319 U.S. 88 (1943). 

FN4  71 STAT. 411, 49 U.S.C. SEC. 303(A)(15).  THE FORMER SEC.
203(A)(15) STATED THE DEFINITION AS FOLLOWS:  "THE TERM 'CONTRACT
CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON WHICH, UNDER INDIVIDUAL
CONTRACTS OR AGREEMENTS, ENGAGES IN THE TRANSPORTATION (OTHER THAN
TRANSPORTATION REFERRED TO IN PARAGRAPH (14) AND THE EXCEPTION THEREIN)
BY MOTOR VEHICLE OF PASSENGERS OR PROPERTY IN INTERSTATE OR FOREIGN
COMMERCE FOR COMPENSATION."  54 STAT. 920. 

FN5  DURING THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE SENATE
INTERSTATE AND FOREIGN COMMERCE COMMITTEE THE FOLLOWING COLLOQUY
OCCURRED BETWEEN MR. BARTON, TRANSPORTATION COUNSEL OF THE COMMITTEE,
AND MR. CLARKE, THEN CHAIRMAN OF THE INTERSTATE COMMERCE COMMISSION: 

"MR. BARTON:  ...  : 

"MR. CLARKE, DO YOU THINK THERE IS ANY CONSTITUTIONAL DIFFICULTY IN
CHANGING, AS WE SAY, AS YOU PROPOSE, A CONTRACT CARRIER TO A COMMON
CARRIER STATUS? 

"MR. CLARKE:  NO; I CAN SEE NONE.  IT ISN'T TAKING AWAY FROM THEM
ANYTHING THAT THEY HAVE; IT ISN'T DISTURBING ANY PROPERTY RIGHTS OF THE
CONTRACT CARRIER.  IT IS GIVING HIM GREATER OPPORTUNITY.   HE CAN STILL
SERVE HIS CONTRACT SHIPPERS, BUT THROUGH THE CONVERSION PROVISIONS OF
THE BILL HE WOULD ALSO HAVE THE OPPORTUNITY TO SERVE THE GENERAL PUBLIC
AS WELL AS THE OBLIGATION."  HEARINGS BEFORE THE UNITED STATES SENATE
SUBCOMMITTEE ON SURFACE TRANSPORTATION OF THE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE, 85TH CONG., 1ST SESS., SURFACE TRANSPORTATION -
SCOPE OF AUTHORITY OF I.C.C., P. 35. 

FN6  ID., AT 182. 

MR. JUSTICE HARLAN, CONCURRING. 

I AGREE WITH WHAT I UNDERSTAND TO BE THE BASIC PREMISE OF THE COURT'S
HOLDING - THAT THE COMMISSION MAY, UNDER SEC. 212(C), CARRY OVER
"KEYSTONE" RESTRICTIONS IN CONVERTING A CONTRACT CARRIER'S PERMIT INTO
A COMMON CARRIER CERTIFICATE, BUT MAY NOT IMPOSE ANY NEW LIMITATIONS ON
THE SCOPE OF THE CARRIER'S OPERATIONS.    APPELLEE CONTENDS THAT THE
LANGUAGE OF SEC. 212(C), COMMENTS BY MEMBERS OF CONGRESS, AND THE
TRADITIONAL NOTION THAT A COMMON CARRIER SERVES THE "PUBLIC" SUGGEST A
CONGRESSIONAL INTENT TO PRECLUDE THE CONTINUANCE OF KEYSTONE
RESTRICTIONS IN THE CERTIFICATES OF CONVERTED CARRIERS.  ALTHOUGH THIS
ARGUMENT IS NOT WITHOUT FORCE, IT LEADS TO THE CONCLUSION THAT THE
COMMISSION IS POWERLESS TO PREVENT EVEN THE WIDEST EXPANSION OF THE
PREVIOUS ACTIVITIES OF A CONVERTED CARRIER, RESULTING FROM THE
REPLACEMENT OF ITS CONTRACT CARRIER PERMIT BY A COMMON CARRIER
CERTIFICATE.  ABSENT WHAT I REGARD AS COMPELLING EVIDENCE THAT CONGRESS
INTENDED SO TO CRIPPLE THE SUPERVISORY POWER OF THE COMMISSION, I AM
CONSTRAINED TO READ SEC. 212(C) AS CONSISTENT WITH OTHER STATUTORY
PROVISIONS DEALING WITH NATIONAL TRANSPORTATION AND TO CONCLUDE THAT
THE COMMISSION MAY LIMIT THE ENTRY OF THE CONVERTED CARRIERS INTO TYPES
OF CARRIAGE PREVIOUSLY PROSCRIBED TO THEM. 

NONETHELESS, THERE APPEARS TO BE NO PERSUASIVE SUPPORT IN THE
LANGUAGE OF SEC. 212(C), LEGISLATIVE HISTORY, OR POLICY FOR PERMITTING
THE COMMISSION TO INHIBIT ACTIVITIES OPEN TO THE CARRIER BEFORE
CONVERSION.  CONGRESS EVINCED AN INTENT NOT TO IMPOSE ANY NEW
LIMITATIONS ON CARRIERS SUBJECT TO CONVERSION, AND, IN VIEW OF THE
GREATER OBLIGATIONS OWED BY COMMON CARRIERS AND THE MORE EXTENSIVE
REGULATION TO WHICH THEY ARE SUBJECT, IT IS DIFFICULT TO ARGUE THAT THE
MAINTENANCE OF EXISTING CARRIAGE PRIVILEGES WILL ADVANTAGE THE
CONVERTED CARRIERS TO THE POSSIBLE PREJUDICE OF OTHER COMMON CARRIERS. 
THE COMMISSION, THEREFORE, MAY NOT INCLUDE IN THE COMMON CARRIER
CERTIFICATE A KEYSTONE RESTRICTION THAT RENDERS IMPERMISSIBLE
OPERATIONS ALLOWED UNDER THE CONTRACT CARRIER PERMIT. 

THE DETERMINATIVE CONSIDERATION IN FIXING THE LIMIT TO THE
COMMISSION'S POWER IS, ACCORDING TO THESE PRINCIPLES, THE AUTHORIZATION
CONFERRED BY THE CONTRACT CARRIER PERMIT; ABSENT DORMANCY OR
ABANDONMENT, THE EXTENT OF APPELLEE'S ACTUAL PRIOR OPERATIONS SHOULD BE
IRRELEVANT.  SINCE IN THE PROCEEDINGS BEFORE THE COMMISSION APPELLEE
CONTENDED THAT SEC. 212(C) IS INCONSISTENT WITH ANY KEYSTONE
RESTRICTION AND THE COMMISSION'S POSITION WAS THAT IT IS FETTERED IN
IMPOSING SUCH RESTRICTIONS ONLY BY THE CONCEPT OF "SUBSTANTIAL PARITY,"
THE QUESTIONS OF DORMANCY OR ABANDONMENT WERE NOT DEALT WITH IN THE
COMMISSION PROCEEDINGS, BUT THE COMMISSION SHOULD BE FREE TO CONSIDER
ANY SUCH ISSUE ON REMAND. 

ON THESE BASES I CONCUR IN THE JUDGMENT OF THE COURT. 
..END :
















BANCO NACIONAL DE CUBA V. SABBATINO, RECEIVER 376 U.S. 398 


NO. 16.  ARGUED OCTOBER 22-23, 1963.  - DECIDED MARCH 23, 1964.  - 307
F.2D 845, REVERSED AND REMANDED. 


RESPONDENT AMERICAN COMMODITY BROKER, CONTRACTED WITH A CUBAN
CORPORATION LARGELY OWNED BY UNITED STATES RESIDENTS TO BUY CUBAN
SUGAR.  THEREAFTER, SUBSEQUENT TO THE UNITED STATES GOVERNMENT'S
REDUCTION OF THE CUBAN SUGAR QUOTA, THE CUBAN GOVERNMENT EXPROPRIATED
THE CORPORATION'S PROPERTY AND RIGHTS.  TO SECURE CONSENT FOR SHIPMENT
OF THE SUGAR, THE BROKER BY A NEW CONTRACT AGREED TO MAKE PAYMENT FOR
THE SUGAR TO A CUBAN INSTRUMENTALITY WHICH THEREAFTER ASSIGNED THE
BILLS OF LADING TO PETITIONER, ANOTHER CUBAN INSTRUMENTALITY, AND
PETITIONER INSTRUCTED ITS AGENT IN NEW YORK TO DELIVER TO THE BROKER
THE BILLS OF LADING AND SIGHT DRAFT IN RETURN FOR PAYMENT.  THE BROKER
ACCEPTED THE DOCUMENTS, RECEIVED PAYMENT FOR THE SUGAR FROM ITS
CUSTOMER, BUT REFUSED TO DELIVER THE PROCEEDS TO PETITIONER'S AGENT. 
PETITIONER BROUGHT THIS ACTION FOR CONVERSION OF THE BILLS OF LADING TO
RECOVER PAYMENT FROM THE BROKER AND TO ENJOIN FROM EXERCISING DOMINION
OVER THE PROCEEDS A RECEIVER WHO HAD BEEN APPOINTED BY A STATE COURT TO
PROTECT THE NEW YORK ASSETS OF THE CORPORATION.  THE DISTRICT COURT
CONCLUDED THAT THE CORPORATION'S PROPERTY INTEREST IN THE SUGAR WAS
SUBJECT TO CUBA'S TERRITORIAL JURISDICTION AND ACKNOWLEDGED THE "ACT OF
STATE" DOCTRINE, WHICH PRECLUDES JUDICIAL INQUIRY IN THIS COUNTRY
RESPECTING THE PUBLIC ACTS OF A RECOGNIZED FOREIGN SOVEREIGN POWER
COMMITTED WITHIN ITS OWN TERRITORY.  THE COURT, NEVERTHELESS, RENDERED
SUMMARY JUDGMENT AGAINST THE PETITIONER, RULING THAT THE ACT OF STATE
DOCTRINE WAS INAPPLICABLE WHEN THE QUESTIONED ACT VIOLATED
INTERNATIONAL LAW, WHICH THE DISTRICT COURT FOUND HAD BEEN THE CASE
HERE.  THE COURT OF APPEALS AFFIRMED, ADDITIONALLY RELYING UPON TWO
STATE DEPARTMENT LETTERS WHICH IT TOOK AS EVIDENCING WILLINGNESS BY THE
EXECUTIVE BRANCH TO A JUDICIAL TESTING OF THE VALIDITY OF THE
EXPROPRIATION.  HELD: 

1.  THE PRIVILEGE OF RESORTING TO UNITED STATES COURTS BEING
AVAILABLE TO A RECOGNIZED SOVEREIGN POWER NOT AT WAR WITH THE UNITED
STATES, AND NOT BEING DEPENDENT UPON RECIPROCITY OF TREATMENT,
PETITIONER HAS ACCESS TO THE FEDERAL COURTS.  PP. 408-412. 

2.  THE PROPRIETY OF THE TAKING WAS NOT GOVERNED BY NEW YORK LAW
SINCE THE SUGAR ITSELF WAS EXPROPRIATED.  P. 413. 

3.  THIS SUIT IS NOT UNCOGNIZABLE IN AMERICAN COURTS AS BEING ONE TO
ENFORCE THE "PUBLIC" ACTS OF A FOREIGN STATE SINCE THE EXPROPRIATION
LAW HERE INVOLVED HAD BEEN FULLY EXECUTED WITHIN CUBA.  PP. 413-415. 

4.  THE GOVERNMENT'S UNCONTESTED ASSERTION THAT THE TWO STATE
DEPARTMENT LETTERS EXPRESSED ONLY THE THEN WISH OF THE DEPARTMENT TO
AVOID COMMENTING ON THE LITIGATION, OBVIATES THE NEED FOR THIS COURT TO
PASS UPON THE "BERNSTEIN EXCEPTION" TO THE ACT OF STATE DOCTRINE, UNDER
WHICH A COURT MAY RESPOND TO A REPRESENTATION BY THE EXECUTIVE BRANCH
THAT IN PARTICULAR CIRCUMSTANCES IT DOES NOT OPPOSE JUDICIAL
CONSIDERATION OF THE FOREIGN STATE'S ACT.  PP. 418-420. 

5.  THE SCOPE OF THE ACT OF STATE DOCTRINE MUST BE DETERMINED
ACCORDING TO FEDERAL LAW.  PP. 421-427. 

6.  THE ACT OF STATE DOCTRINE APPLIES AND IS DESIRABLE WITH REGARD TO
A FOREIGN EXPROPRIATION EVEN THOUGH THE EXPROPRIATION ALLEGEDLY
VIOLATES CUSTOMARY INTERNATIONAL LAW.  PP. 427-437. 

(A)  DISAGREEMENT EXISTS AS TO RELEVANT STANDARDS OF INTERNATIONAL LAW
CONCERNING A STATE'S RESPONSIBILITY TOWARD ALIENS.  P. 430. 

(B)  THE POLITICAL BRANCH CAN MORE EFFECTIVELY DEAL WITH
EXPROPRIATION THAN CAN THE JUDICIAL BRANCH.  PP. 431-432. 

(C)  CONFLICTS BETWEEN THE JUDICIAL AND EXECUTIVE BRANCHES COULD
HARDLY BE AVOIDED WERE THE JUDICIARY TO ADJUDICATE WITH RESPECT TO THE
VALIDITY OF EXPROPRIATIONS.  EVEN IF THE COMBINATION ALLEGED IN THIS
CASE OF RETALIATION, DISCRIMINATION, AND INADEQUATE COMPENSATION MADE
THE EXPROPRIATION HERE VIOLATIVE OF INTERNATIONAL LAW, A JUDICIAL
DETERMINATION TO THAT EFFECT WOULD STILL BE UNWISE AS INVOLVING
POTENTIAL CONFLICT WITH OR EMBARRASSMENT TO THE EXECUTIVE BRANCH IN
LATER LITIGATION.  PP. 432-433. 

7.  A FOREIGN COUNTRY'S STATUS AS A PLAINTIFF DOES NOT MAKE THE ACT
OF STATE DOCTRINE INAPPLICABLE.  PP. 437-438. 

BANCO NACIONAL DE CUBA V. SABBATINO, RECEIVER, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION WHICH BROUGHT THIS CASE HERE, AND IS NOW FOUND TO BE THE
DISPOSITIVE ISSUE, IS WHETHER THE SO-CALLED ACT OF STATE DOCTRINE
SERVES TO SUSTAIN PETITIONER'S CLAIMS IN THIS LITIGATION.  SUCH CLAIMS
ARE ULTIMATELY FOUNDED ON A DECREE OF THE GOVERNMENT OF CUBA
EXPROPRIATING CERTAIN PROPERTY, THE RIGHT TO THE PROCEEDS OF WHICH IS
HERE IN CONTROVERSY.  THE ACT OF STATE DOCTRINE IN ITS TRADITIONAL
FORMULATION PRECLUDES THE COURTS OF THIS COUNTRY FROM INQUIRING INTO
THE VALIDITY OF THE PUBLIC ACTS A RECOGNIZED FOREIGN SOVEREIGN POWER
COMMITTED WITHIN ITS OWN TERRITORY. 

                                   I. 

IN FEBRUARY AND JULY OF 1960, RESPONDENT FARR, WHITLOCK & CO., AN
AMERICAN COMMODITY BROKER, CONTRACTED TO PURCHASE CUBAN SUGAR, FREE
ALONGSIDE THE STEAMER, FROM A WHOLLY OWNED SUBSIDIARY OF COMPANIA
AZUCARERA VERTIENTES-CAMAGUEY DE CUBA (C.A.V.), A CORPORATION ORGANIZED
UNDER CUBAN LAW WHOSE CAPITAL STOCK WAS OWNED PRINCIPALLY BY UNITED
STATES RESIDENTS.  FARR, WHITLOCK AGREED TO PAY FOR THE SUGAR IN NEW
YORK UPON PRESENTATION OF THE SHIPPING DOCUMENTS AND A SIGHT DRAFT. 

ON JULY 6, 1960, THE CONGRESS OF THE UNITED STATES AMENDED THE SUGAR
ACT OF 1948 TO PERMIT A PRESIDENTIALLY DIRECTED REDUCTION OF THE SUGAR
QUOTA FOR CUBA.  (FN1)  ON THE SAME DAY PRESIDENT EISENHOWER EXERCISED
THE GRANTED POWER.  (FN2)  THE DAY OF THE CONGRESSIONAL ENACTMENT, THE
CUBAN COUNCIL OF MINISTERS ADOPTED "LAW NO. 851," WHICH CHARACTERIZED
THIS REDUCTION IN THE CUBAN SUGAR QUOTA AS AN ACT OF "AGGRESSION, FOR
POLITICAL PURPOSES" ON THE PART OF THE UNITED STATES, JUSTIFYING THE
TAKING OF COUNTERMEASURES BY CUBA.  THE LAW GAVE THE CUBAN PRESIDENT
AND PRIME MINISTER DISCRETIONARY POWER TO NATIONALIZE BY FORCED
EXPROPRIATION PROPERTY OR ENTERPRISES IN WHICH AMERICAN NATIONALS HAD
AN INTEREST.  (FN3)  ALTHOUGH A SYSTEM OF COMPENSATION WAS FORMALLY
PROVIDED, THE POSSIBILITY OF PAYMENT UNDER IT MAY WELL BE DEEMED
ILLUSORY.  (FN4)  OUR STATE DEPARTMENT HAS DESCRIBED THE CUBAN LAW AS
"MANIFESTLY IN VIOLATION OF THOSE PRINCIPLES OF INTERNATIONAL LAW WHICH
HAVE LONG BEEN ACCEPTED BY THE FREE COUNTRIES OF THE WEST.  IT IS IN
ITS ESSENCE DISCRIMINATORY, ARBITRARY AND CONFISCATORY."  (FN5) 

BETWEEN AUGUST 6 AND AUGUST 9, 1960, THE SUGAR COVERED BY THE
CONTRACT BETWEEN FARR, WHITLOCK AND C.A.V. (FN6) WAS LOADED, DESTINED
FOR MOROCCO, ONTO THE S.S. HORNFELS, WHICH WAS STANDING OFFSHORE AT THE
CUBAN PORT OF JUCARO (SANTA MARIA).  ON THE DAY LOADING COMMENCED, THE
CUBAN PRESIDENT AND PRIME MINISTER, ACTING PURSUANT TO LAW NO. 851,
ISSUED EXECUTIVE POWER RESOLUTION NO. 1.  IT PROVIDED FOR THE
COMPULSORY EXPROPRIATION OF ALL PROPERTY AND ENTERPRISES, AND OF RIGHTS
AND INTERESTS ARISING THEREFROM, OF CERTAIN LISTED COMPANIES, INCLUDING
C.A.V., WHOLLY OR PRINCIPALLY OWNED BY AMERICAN NATIONALS.  THE
PREAMBLE REITERATED THE ALLEGED INJUSTICE OF THE AMERICAN REDUCTION OF
THE CUBAN SUGAR QUOTA AND EMPHASIZED THE IMPORTANCE OF CUBA'S SERVING
AS AN EXAMPLE FOR OTHER COUNTRIES TO FOLLOW "IN THEIR STRUGGLE TO FREE
THEMSELVES FROM THE BRUTAL CLAWS OF IMPERIALISM."  (FN7)  IN
CONSEQUENCE OF THE RESOLUTION, THE CONSENT OF THE CUBAN GOVERNMENT WAS
NECESSARY BEFORE A SHIP CARRYING SUGAR OF A NAMED COMPANY COULD LEAVE
CUBAN WATERS.  IN ORDER TO OBTAIN THIS CONSENT, FARR, WHITLOCK, ON
AUGUST 11, ENTERED INTO CONTRACTS, IDENTICAL TO THOSE IT HAD MADE WITH
C.A.V., WITH THE BANCO PARA EL COMERCIO EXTERIOR DE CUBA, AN
INSTRUMENTALITY OF THE CUBAN GOVERNMENT.  THE S.S. HORNFELS SAILED FOR
MOROCCO ON AUGUST 12. 

BANCO EXTERIOR ASSIGNED THE BILLS OF LADING TO PETITIONER, ALSO AN
INSTRUMENTALITY OF THE CUBAN GOVERNMENT, WHICH INSTRUCTED ITS AGENT IN
NEW YORK, SOCIETE GENERALE, TO DELIVER THE BILLS AND A SIGHT DRAFT IN
THE SUM OF $175,250.69 TO FARR, WHITLOCK IN RETURN FOR PAYMENT. 
SOCIETE GENERALE'S INITIAL TENDER OF THE DOCUMENTS WAS REFUSED BY FARR,
WHITLOCK, WHICH ON THE SAME DAY WAS NOTIFIED OF C.A.V.'S CLAIM THAT AS
RIGHTFUL OWNER OF THE SUGAR IT WAS ENTITLED TO THE PROCEEDS.  IN RETURN
FOR A PROMISE NOT TO TURN THE FUNDS OVER TO PETITIONER OR ITS AGENT,
C.A.V. AGREED TO INDEMNIFY FARR, WHITLOCK FOR ANY LOSS.  (FN8)  FARR,
WHITLOCK SUBSEQUENTLY ACCEPTED THE SHIPPING DOCUMENTS, NEGOTIATED THE
BILLS OF LADING TO ITS CUSTOMER, AND RECEIVED PAYMENT FOR THE SUGAR. 
IT REFUSED, HOWEVER, TO HAND OVER THE PROCEEDS TO SOCIETE GENERALE. 
SHORTLY THEREAFTER, FARR, WHITLOCK WAS SERVED WITH AN ORDER OF THE NEW
YORK SUPREME COURT, WHICH HAD APPOINTED SABBATINO AS TEMPORARY RECEIVER
OF C.A.V.'S NEW YORK ASSETS, ENJOINING IT FROM TAKING ANY ACTION
FOLLOWING THIS, FARR, WHITLOCK, PURSUANT TO COURT ORDER, TRANSFERRED
THE FUNDS TO SABBATINO, TO ABIDE THE EVENT OF A JUDICIAL DETERMINATION
AS TO THEIR OWNERSHIP. 

PETITIONER THEN INSTITUTED THIS ACTION IN THE FEDERAL DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK.  ALLEGING CONVERSION OF THE
BILLS OF LADING, IT SOUGHT TO RECOVER THE PROCEEDS THEREOF FROM FARR,
WHITLOCK AND TO ENJOIN THE RECEIVER FROM EXERCISING ANY DOMINION OVER
SUCH PROCEEDS.  UPON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT, THE
DISTRICT COURT, 193 F. SUPP. 375, SUSTAINED FEDERAL IN PERSONAM
JURISDICTION DESPITE STATE CONTROL OF THE FUNDS.  IT FOUND THAT THE
SUGAR WAS LOCATED WITHIN CUBAN TERRITORY AT THE TIME OF EXPROPRIATION
AND DETERMINED THAT UNDER MERCHANT LAW COMMON TO CIVILIZED COUNTRIES
FARR, WHITLOCK COULD NOT HAVE ASSERTED OWNERSHIP OF THE SUGAR AGAINST
C.A.V. BEFORE MAKING PAYMENT.  IT CONCLUDED THAT C.A.V. HAD A PROPERTY
INTEREST IN THE SUGAR SUBJECT TO THE TERRITORIAL JURISDICTION OF CUBA. 
THE COURT THEN DEALT WITH THE QUESTION OF CUBA'S TITLE TO THE SUGAR, ON
WHICH RESTED PETITIONER'S CLAIM OF CONVERSION.  WHILE ACKNOWLEDGING THE
CONTINUING VITALITY OF THE ACT OF STATE DOCTRINE, THE COURT BELIEVED IT
INAPPLICABLE WHEN THE QUESTIONED FOREIGN ACT IS IN VIOLATION OF
INTERNATIONAL LAW.  PROCEEDING ON THE BASIS THAT A TAKING INVALID UNDER
INTERNATIONAL LAW DOES NOT CONVEY GOOD TITLE, THE DISTRICT COURT FOUND
THE CUBAN EXPROPRIATION DECREE TO VIOLATE SUCH LAW IN THREE SEPARATE
RESPECTS:  IT WAS MOTIVATED BY A RETALIATORY AND NOT A PUBLIC PURPOSE;
IT DISCRIMINATED AGAINST AMERICAN NATIONALS; AND IT FAILED TO PROVIDE
ADEQUATE COMPENSATION.  SUMMARY JUDGMENT AGAINST PETITIONER WAS
ACCORDINGLY GRANTED. 

THE COURT OF APPEALS, 307 F.2D 845, AFFIRMING THE DECISION ON SIMILAR
GROUNDS, RELIED ON TWO LETTERS (NOT BEFORE THE DISTRICT COURT) WRITTEN
BY STATE DEPARTMENT OFFICERS WHICH IT TOOK AS EVIDENCE THAT THE
EXECUTIVE BRANCH HAD NO OBJECTION TO A JUDICIAL TESTING OF THE CUBAN
DECREE'S VALIDITY.  THE COURT WAS UNWILLING TO DECLARE THAT ANY ONE OF
THE INFIRMITIES FOUND BY THE DISTRICT COURT RENDERED THE TAKING INVALID
UNDER INTERNATIONAL LAW, BUT WAS SATISFIED THAT IN COMBINATION THEY HAD
THAT EFFECT.  WE GRANTED CERTIORARI BECAUSE THE ISSUES INVOLVED BEAR
IMPORTANTLY ON THE CONDUCT OF THE COUNTRY'S FOREIGN RELATIONS AND MORE
PARTICULARLY ON THE PROPER ROLE OF THE JUDICIAL BRANCH IN THIS
SENSITIVE AREA.  372 U.S. 905.  FOR REASONS TO FOLLOW WE DECIDE THAT
THE JUDGMENT BELOW MUST BE REVERSED. 

SUBSEQUENT TO THE DECISION OF THE COURT OF APPEALS, THE C.A.V.
RECEIVERSHIP WAS TERMINATED BY THE STATE SUPREME COURT; THE FUNDS IN
QUESTION WERE PLACED IN ESCROW, PENDING THE OUTCOME OF THIS SUIT. 
C.A.V. HAS MOVED IN THIS COURT TO BE SUBSTITUTED AS A PARTY IN THE
PLACE OF SABBATINO.  ALTHOUGH IT IS TRUE THAT SABBATINO'S DEFENSIVE
INTEREST IN THIS LITIGATION HAS LARGELY, IF NOT ENTIRELY, REFLECTED
THAT OF C.A.V., THIS IS TRUE ALSO OF FARR, WHITLOCK'S POSITION.  THERE
IS NO INDICATION THAT FARR, WHITLOCK HAS NOT ADEQUATELY REPRESENTED
C.A.V.'S INTEREST OR THAT IT WILL NOT CONTINUE TO DO SO.  MOREOVER,
INSOFAR AS DISPOSITION OF THE CASE HERE IS CONCERNED, C.A.V. HAS BEEN
PERMITTED AS AMICUS TO BRIEF AND ARGUE ITS POSITION BEFORE THIS COURT. 
IN THESE CIRCUMSTANCES WE ARE NOT PERSUADED THAT THE ADMISSION OF
C.A.V. AS A PARTY IS NECESSARY AT THIS STAGE TO SAFEGUARD ANY CLAIM
EITHER THAT IT HAS ALREADY PRESENTED OR THAT IT MAY PRESENT IN THE
FUTURE COURSE OF THIS LITIGATION.   ACCORDINGLY, WE ARE CONSTRAINED TO
DENY C.A.V.'S MOTION TO BE ADMITTED AS A PARTY, (FN9) WITHOUT PREJUDICE
HOWEVER TO THE RENEWAL OF SUCH A MOTION IN THE LOWER COURTS IF IT
APPEARS THAT C.A.V.'S INTERESTS ARE NOT ADEQUATELY REPRESENTED BY FARR,
WHITLOCK AND THAT THE GRANTING OF SUCH A MOTION WILL NOT DISTURB
FEDERAL JURISDICTION.  CF. STRAWBRIDGE V. CURTISS, 3 CRANCH 267;
INDIANAPOLIS V. CHASE NAT'L BANK, 314 U.S. 63, AT 69; EX PARTE
EDELSTEIN, 30 F.2D 636, AT 638. 

BEFORE CONSIDERING THE HOLDING BELOW WITH RESPECT TO THE ACT OF STATE
DOCTRINE, WE MUST DEAL WITH NARROWER GROUNDS URGED FOR DISMISSAL OF THE
ACTION OR FOR A JUDGMENT ON THE MERITS IN FAVOR OF RESPONDENTS. 

                                  II. 

IT IS FIRST CONTENDED THAT THIS PETITIONER, AN INSTRUMENTALITY OF THE
CUBAN GOVERNMENT, SHOULD BE DENIED ACCESS TO AMERICAN COURTS BECAUSE
CUBA IS AN UNFRIENDLY POWER AND DOES NOT PERMIT NATIONALS OF THIS
COUNTRY TO OBTAIN RELIEF IN ITS COURTS.  EVEN THOUGH THE RESPONDENTS
DID NOT RAISE THIS POINT IN THE LOWER COURTS WE THINK IT SHOULD BE
CONSIDERED HERE.  IF THE COURTS OF THIS COUNTRY SHOULD BE CLOSED TO THE
GOVERNMENT OF A FOREIGN STATE, THE UNDERLYING REASON IS ONE OF NATIONAL
POLICY TRANSCENDING THE INTERESTS OF THE PARTIES TO THE ACTION, AND
THIS COURT SHOULD GIVE EFFECT TO THAT POLICY SUA SPONTE EVEN AT THIS
STAGE OF THE LITIGATION. 

UNDER PRINCIPLES OF COMITY GOVERNING THIS COUNTRY'S RELATIONS WITH
OTHER NATIONS, SOVEREIGN STATES ARE ALLOWED TO SUE IN THE COURTS OF THE
UNITED STATES, THE SAPPHIRE, 11 WALL.  164, 167; GUARANTY TRUST CO. V.
UNITED STATES, 304 U.S. 126, 134.  THIS COURT HAS CALLED "COMITY" IN
THE LEGAL SENSE "NEITHER A MATTER OF ABSOLUTE OBLIGATION, ON THE ONE
HAND, NOR OF MERE COURTESY AND GOOD WILL, UPON THE OTHER."  HILTON V.
GUYOT, 159 U.S. 113, 163-164.  ALTHOUGH COMITY IS OFTEN ASSOCIATED WITH
THE EXISTENCE OF FRIENDLY RELATIONS BETWEEN STATES, E.G., BANK OF
AUGUSTA V. EARLE, 13 PET. 519, 589; RUSSIAN REPUBLIC V. CIBRARIO, 235
N.Y. 255, 258, 139 N.E. 259, 260, PRIOR TO SOME RECENT LOWER COURT
CASES WHICH HAVE QUESTIONED THE RIGHT OF INSTRUMENTALITIES OF THE CUBAN
GOVERNMENT TO SUE IN OUR COURTS, (FN10) THE PRIVILEGE OF SUIT HAS BEEN
DENIED ONLY TO GOVERNMENTS AT WAR WITH THE UNITED STATES, EX PARTE DON
ASCANIO COLONNA, 314 U.S. 510; SEE SEC. 7 OF THE TRADING WITH THE ENEMY
ACT, 40 STAT. 416, 417, 50 U.S.C. APP. SEC. 7; CF. HANGER V. ABBOTT, 6
WALL.  532; CAPERTON V. BOWYER, 14 WALL.  216, 236, OR TO THOSE NOT
RECOGNIZED BY THIS COUNTRY, THE PENZA, 277 F. 91; RUSSIAN REPUBLIC V.
CIBRARIO, SUPRA.  (FN11) 

RESPONDENTS, POINTING TO THE SEVERANCE OF DIPLOMATIC RELATIONS,
COMMERCIAL EMBARGO, AND FREEZING OF CUBAN ASSETS IN THIS COUNTRY,
CONTEND THAT RELATIONS BETWEEN THE UNITED STATES AND CUBA MANIFEST SUCH
ANIMOSITY THAT UNFRIENDLINESS IS CLEAR, AND THAT THE COURTS SHOULD BE
CLOSED TO THE CUBAN GOVERNMENT.  WE DO NOT AGREE.  THIS COURT WOULD
HARDLY BE COMPETENT TO UNDERTAKE ASSESSMENTS OF VARYING DEGREES OF
FRIENDLINESS OR ITS ABSENCE, AND, LACKING SOME DEFINITE TOUCHSTONE FOR
DETERMINATION, WE ARE CONSTRAINED TO CONSIDER ANY RELATIONSHIP, SHORT
OF WAR, WITH A RECOGNIZED SOVEREIGN POWER AS EMBRACING THE PRIVILEGE OF
RESORTING TO UNITED STATES COURTS.  ALTHOUGH THE SEVERANCE OF
DIPLOMATIC RELATIONS IS AN OVERT ACT WITH OBJECTIVE SIGNIFICANCE IN THE
DEALINGS OF SOVEREIGN STATES, WE ARE UNWILLING TO SAY THAT IT SHOULD
INEVITABLY RESULT IN THE WITHDRAWAL OF THE PRIVILEGE OF BRINGING SUIT. 
SEVERANCE MAY TAKE PLACE FOR ANY NUMBER OF POLITICAL REASONS, ITS
DURATION IS UNPREDICTABLE, AND WHATEVER EXPRESSION OF ANIMOSITY IT MAY
IMPLY DOES NOT APPROACH THAT IMPLICIT IN A DECLARATION OF WAR. 

IT IS PERHAPS TRUE THAT NONRECOGNITION OF A GOVERNMENT IN CERTAIN
CIRCUMSTANCES MAY REFLECT NO GREATER UNFRIENDLINESS THAN THE SEVERANCE
OF DIPLOMATIC RELATIONS WITH A RECOGNIZED GOVERNMENT, BUT THE REFUSAL
TO RECOGNIZE HAS A UNIQUE LEGAL ASPECT.  IT SIGNIFIES THIS COUNTRY'S
UNWILLINGNESS TO ACKNOWLEDGE THAT THE GOVERNMENT IN QUESTION SPEAKS AS
THE SOVEREIGN AUTHORITY FOR THE TERRITORY IT PURPORTS TO CONTROL, SEE
RUSSIAN REPUBLIC V. CIBRARIO, SUPRA, AT 260-263, 139 N.E., AT 261-263. 
POLITICAL RECOGNITION IS EXCLUSIVELY A FUNCTION OF THE EXECUTIVE.  THE
POSSIBLE INCONGRUITY OF JUDICIAL "RECOGNITION," BY PERMITTING SUIT, OF
A GOVERNMENT NOT RECOGNIZED BY THE EXECUTIVE IS COMPLETELY ABSENT WHEN
MERELY DIPLOMATIC RELATIONS ARE BROKEN.  (FN12) 

THE VIEW THAT THE EXISTING SITUATION BETWEEN THE UNITED STATES AND
CUBA SHOULD NOT LEAD TO A DENIAL OF STATUS TO SUE IS BUTTRESSED BY THE
CIRCUMSTANCE THAT NONE OF THE ACTS OF OUR GOVERNMENT HAVE BEEN AIMED AT
CLOSING THE COURTS OF THIS COUNTRY TO CUBA, AND MORE PARTICULARLY BY
THE FACT THAT THE GOVERNMENT HAS COME TO THE SUPPORT OF CUBA'S "ACT OF
STATE" CLAIM IN THIS VERY LITIGATION.    RESPONDENTS FURTHER URGE THAT
RECIPROCITY OF TREATMENT IS AN ESSENTIAL INGREDIENT OF COMITY
GENERALLY, AND, THEREFORE, OF THE PRIVILEGE OF FOREIGN STATES TO BRING
SUIT HERE.  ALTHOUGH HILTON V. GUYOT, 159 U.S. 113, CONTAINS SOME BROAD
LANGUAGE ABOUT THE RELATIONSHIP OF RECIPROCITY TO COMITY, THE CASE IN
FACT IMPOSED A REQUIREMENT OF RECIPROCITY ONLY IN REGARD TO
CONCLUSIVENESS OF JUDGMENTS, AND EVEN THEN ONLY IN LIMITED
CIRCUMSTANCES.  ID., AT 170-171.  IN DIRECTION DER DISCONTO
GESELLSCHAFT V. UNITED STATES STEEL CORP., 300 F. 741, 747
(D.C.S.D.N.Y.), JUDGE LEARNED HAND POINTED OUT THAT THE DOCTRINE OF
RECIPROCITY HAS APPARENTLY BEEN CONFINED TO FOREIGN JUDGMENTS. 

THERE ARE GOOD REASONS FOR DECLINING TO EXTEND THE PRINCIPLE TO THE
QUESTION OF STANDING OF SOVEREIGN STATES TO SUE.  WHETHER A FOREIGN
SOVEREIGN WILL BE PERMITTED TO SUE INVOLVES A PROBLEM MORE SENSITIVE
POLITICALLY THAN WHETHER THE JUDGMENTS OF ITS COURTS MAY BE RE
EXAMINED, AND THE POSSIBILITY OF EMBARRASSMENT TO THE EXECUTIVE BRANCH
IN HANDLING FOREIGN RELATIONS IS SUBSTANTIALLY MORE ACUTE.  RE
EXAMINATION OF JUDGMENTS, IN PRINCIPLE, REDUCES RATHER THAN ENHANCES
THE POSSIBILITY OF INJUSTICE BEING DONE IN A PARTICULAR CASE; REFUSAL
TO ALLOW SUIT MAKES IT IMPOSSIBLE FOR A COURT TO SEE THAT A PARTICULAR
DISPUTE IS FAIRLY RESOLVED.  THE FREEZING OF CUBAN ASSETS EXEMPLIFIES
THE CAPACITY OF THE POLITICAL BRANCHES TO ASSURE, THROUGH A VARIETY OF
TECHNIQUES (SEE INFRA, PP. 431, 435-436), THAT THE NATIONAL INTEREST IS
PROTECTED AGAINST A COUNTRY WHICH IS THOUGHT TO BE IMPROPERLY DENYING
THE RIGHTS OF UNITED STATES CITIZENS. 

FURTHERMORE, THE QUESTION WHETHER A COUNTRY GIVES RES JUDICATA EFFECT
TO UNITED STATES JUDGMENTS PRESENTS A RELATIVELY SIMPLE INQUIRY.  THE
PRECISE STATUS OF THE UNITED STATES GOVERNMENT AND ITS NATIONALS BEFORE
FOREIGN COURTS IS MUCH MORE DIFFICULT TO DETERMINE.  TO MAKE SUCH AN
INVESTIGATION SIGNIFICANT, A COURT WOULD HAVE TO DISCOVER NOT ONLY WHAT
IS PROVIDED BY THE FORMAL STRUCTURE OF THE FOREIGN JUDICIAL SYSTEM, BUT
ALSO WHAT THE PRACTICAL POSSIBILITIES OF FAIR TREATMENT ARE.  THE
COURTS, WHOSE POWERS TO FURTHER THE NATIONAL INTEREST IN FOREIGN
AFFAIRS ARE NECESSARILY CIRCUMSCRIBED AS COMPARED WITH THOSE OF THE
POLITICAL BRANCHES, CAN BEST SERVE THE RULE OF LAW BY NOT EXCLUDING
OTHERWISE PROPER SUITORS BECAUSE OF DEFICIENCIES IN THEIR LEGAL
SYSTEMS. 

WE HOLD THAT THIS PETITIONER IS NOT BARRED FROM ACCESS TO THE FEDERAL
COURTS.  (FN13)

                                  III. 

RESPONDENTS CLAIMED IN THE LOWER COURTS THAT CUBA HAD EXPROPRIATED
MERELY CONTRACTUAL RIGHTS THE SITUS OF WHICH WAS IN NEW YORK, AND THAT
THE PROPRIETY OF THE TAKING WAS, THEREFORE, GOVERNED BY NEW YORK LAW. 
THE DISTRICT COURT REJECTED THIS CONTENTION ON THE BASIS OF THE RIGHT
OF OWNERSHIP POSSESSED BY C.A.V. AGAINST FARR, WHITLOCK PRIOR TO
PAYMENT FOR THE SUGAR.  THAT THE SUGAR ITSELF WAS EXPROPRIATED RATHER
THAN A CONTRACTUAL CLAIM IS FURTHER SUPPORTED BY CUBA'S REFUSAL TO LET
THE S.S. HORNFELS SAIL UNTIL A NEW CONTRACT HAD BEEN SIGNED.  HAD THE
CUBAN DECREE REPRESENTED ONLY AN ATTEMPT TO EXPROPRIATE A CONTRACTUAL
RIGHT OF C.A.V., THE FORCED DELAY OF SHIPMENT AND FARR, WHITLOCK'S
SUBSEQUENT CONTRACT WITH PETITIONER'S ASSIGNOR WOULD HAVE BEEN
MEANINGLESS.  (FN14) NEITHER THE DISTRICT COURT'S FINDING CONCERNING
THE LOCATION OF THE S.S. HORNFELS NOR ITS CONCLUSION THAT CUBA HAD
TERRITORIAL JURISDICTION TO EXPROPRIATE THE SUGAR, ACQUIESCED IN BY THE
COURT OF APPEALS, IS SERIOUSLY CHALLENGED HERE.  RESPONDENTS' LIMITED
VIEW OF THE EXPROPRIATION MUST BE REJECTED. 

RESPONDENTS FURTHER CONTEND THAT IF THE EXPROPRIATION WAS OF THE
SUGAR ITSELF, THIS SUIT THEN BECOMES ONE TO ENFORCE THE PUBLIC LAW OF A
FOREIGN STATE AND AS SUCH IS NOT COGNIZABLE IN THE COURTS OF THIS
COUNTRY.  THEY RELY ON THE PRINCIPLE ENUNCIATED IN FEDERAL AND STATE
CASES THAT A COURT NEED NOT GIVE EFFECT TO THE PENAL OR REVENUE LAWS OF
FOREIGN COUNTRIES OR SISTER STATES.  SEE, E.G., THE ANTELOPE, 10
WHEAT.  66, 123; WISCONSIN V. PELICAN INS. CO., 127 U.S. 265;
HUNTINGTON V. ATTRILL, 146 U.S. 657 (ALL RELATING TO PENAL LAWS);
(FN15) MOORE V. MITCHELL, 30 F.2D 600, AFF'D ON OTHER GROUNDS, 281 U.S.
18; CITY OF DETROIT V. PROCTOR, 44 DEL. 193, 61 A.2D 412; CITY OF
PHILADELPHIA V. COHEN, 11 N.Y.2D 401, 184 N.E.2D 167, 230 N.Y.S.2D 188
(ALL RELATING TO REVENUE LAWS). 

THE EXTENT TO WHICH THIS DOCTRINE MAY APPLY TO OTHER KINDS OF PUBLIC
LAWS, THOUGH PERHAPS STILL AN OPEN QUESTION, (FN16) NEED NOT BE DECIDED
IN THIS CASE.  FOR WE HAVE BEEN REFERRED TO NO AUTHORITY WHICH SUGGESTS
THAT THE DOCTRINE REACHES A PUBLIC LAW WHICH, AS HERE, HAS BEEN FULLY
EXECUTED WITHIN THE FOREIGN STATE.  CUBA'S RESTRAINT OF THE S.S.
HORNFELS MUST BE REGARDED FOR THESE PURPOSES TO HAVE CONSTITUTED AN
EFFECTIVE TAKING OF THE SUGAR, VESTING IN CUBA C.A.V.'S PROPERTY RIGHT
IN IT. FARR, WHITLOCK'S CONTRACT WITH THE CUBAN BANK, HOWEVER COMPELLED
TO SIGN FARR, WHITLOCK MAY HAVE FELT, REPRESENTED INDEED A RECOGNITION
OF CUBA'S DOMINION OVER THE PROPERTY. 

IN THESE CIRCUMSTANCES THE QUESTION WHETHER THE RIGHTS ACQUIRED BY
CUBA ARE ENFORCEABLE IN OUR COURTS DEPENDS NOT UPON THE DOCTRINE HERE
INVOKED BUT UPON THE ACT OF STATE DOCTRINE DISCUSSED IN THE SUCCEEDING

                                   IV. 

THE CLASSIC AMERICAN STATEMENT OF THE ACT OF STATE DOCTRINE, WHICH
APPEARS TO HAVE TAKEN ROOT IN ENGLAND AS EARLY AS 1647, BLAD V.
BAMFIELD, 3 SWANS.  604, 36 ENG. REP.  992, AND BEGAN TO EMERGE IN THE
JURISPRUDENCE OF THIS COUNTRY IN THE LATE EIGHTEENTH AND EARLY
NINETEENTH CENTURIES, SEE, E.G., WARE V. HYLTON, 3 DALL.  199, 230;
HUDSON V. GUESTIER, 4 CRANCH 293, 294; THE SCHOONER EXCHANGE V.
M'FADDON, 7 CRANCH 116, 135, 136; L'INVINCIBLE, 1 WHEAT.  238, 253; THE
SANTISSIMA TRINIDAD, 7 WHEAT.  283, 336, IS FOUND IN UNDERHILL V.
HERNANDEZ, 168 U.S. 250, WHERE CHIEF JUSTICE FULLER SAID FOR A
UNANIMOUS COURT (P. 252): 

"EVERY SOVEREIGN STATE IS BOUND TO RESPECT THE INDEPENDENCE OF EVERY
OTHER SOVEREIGN STATE, AND THE COURTS OF ONE COUNTRY WILL NOT SIT IN
JUDGMENT ON THE ACTS OF THE GOVERNMENT OF ANOTHER DONE WITHIN ITS OWN
TERRITORY.  REDRESS OF GRIEVANCES BY REASON OF SUCH ACTS MUST BE
OBTAINED THROUGH THE MEANS OPEN TO BE AVAILED OF BY SOVEREIGN POWERS AS
BETWEEN THEMSELVES." 

FOLLOWING THIS PRECEPT THE COURT IN THAT CASE REFUSED TO INQUIRE INTO
ACTS OF HERNANDEZ, A REVOLUTIONARY VENEZUELAN MILITARY COMMANDER WHOSE
GOVERNMENT HAD BEEN LATER RECOGNIZED BY THE UNITED STATES, WHICH WERE
MADE THE BASIS OF A DAMAGE ACTION IN THIS COUNTRY BY UNDERHILL, AN
AMERICAN CITIZEN, WHO CLAIMED THAT HE HAD BEEN UNLAWFULLY ASSAULTED,
COERCED, AND DETAINED IN VENEZUELA BY HERNANDEZ. 

NONE OF THIS COURT'S SUBSEQUENT CASES IN WHICH THE ACT OF STATE
DOCTRINE WAS DIRECTLY OR PERIPHERALLY INVOLVED MANIFEST ANY RETREAT
FROM UNDERHILL.  SEE AMERICAN BANANA CO. V. UNITED FRUIT CO., 213 U.S.
347; OETJEN V. CENTRAL LEATHER CO., 246 U.S. 297; RICAUD V. AMERICAN
METAL CO., 246 U.S. 304; SHAPLEIGH V. MIER, 299 U.S. 468; UNITED STATES
V. BELMONT, 301 U.S. 324; UNITED STATES V. PINK, 315 U.S. 203.  ON THE
CONTRARY IN TWO OF THESE CASES, OETJEN AND RICAUD, THE DOCTRINE AS
ANNOUNCED IN UNDERHILL WAS REAFFIRMED IN UNEQUIVOCAL TERMS. 

OETJEN INVOLVED A SEIZURE OF HIDES FROM A MEXICAN CITIZEN AS A
MILITARY LEVY BY GENERAL VILLA, ACTING FOR THE FORCES OF GENERAL
CARRANZA, WHOSE GOVERNMENT WAS RECOGNIZED BY THIS COUNTRY SUBSEQUENT TO
THE TRIAL BUT PRIOR TO DECISION BY THIS COURT.  THE HIDES WERE SOLD TO
A TEXAS CORPORATION WHICH SHIPPED THEM TO THE UNITED STATES AND
ASSIGNED THEM TO DEFENDANT.  AS ASSIGNEE OF THE ORIGINAL OWNER,
PLAINTIFF REPLEVIED THE HIDES, CLAIMING THAT THEY HAD BEEN SEIZED IN
VIOLATION OF THE HAGUE CONVENTIONS.  IN AFFIRMING A JUDGMENT FOR
DEFENDANT, THE COURT SUGGESTED THAT THE RULES OF THE CONVENTIONS DID
NOT APPLY TO CIVIL WAR AND THAT, EVEN IF THEY DID, THE RELEVANT SEIZURE
WAS NOT IN VIOLATION OF THEM.  246 U.S., AT 301-302.  NEVERTHELESS, IT
CHOSE TO REST ITS DECISION ON OTHER GROUNDS.  IT DESCRIBED THE
DESIGNATION OF THE SOVEREIGN AS A POLITICAL QUESTION TO BE DETERMINED
BY THE LEGISLATIVE AND EXECUTIVE DEPARTMENTS RATHER THAN THE JUDICIAL
DEPARTMENT INVOKED THE ESTABLISHED RULE THAT SUCH RECOGNITION OPERATES
RETROACTIVELY TO VALIDATE PAST ACTS, AND FOUND THE BASIC TENET OF
UNDERHILL TO BE APPLICABLE TO THE CASE BEFORE IT. 

"THE PRINCIPLE THAT THE CONDUCT OF ONE INDEPENDENT GOVERNMENT CANNOT
BE SUCCESSFULLY QUESTIONED IN THE COURTS OF ANOTHER IS AS APPLICABLE TO
A CASE INVOLVING THE TITLE TO PROPERTY BROUGHT WITHIN THE CUSTODY OF A
COURT, SUCH AS WE HAVE HERE, AS IT WAS HELD TO BE TO THE CASES CITED,
IN WHICH CLAIMS FOR DAMAGES WERE BASED UPON ACTS DONE IN A FOREIGN
COUNTRY, FOR IT RESTS AT LAST UPON THE HIGHEST CONSIDERATIONS OF
INTERNATIONAL COMITY AND EXPEDIENCY.  TO PERMIT THE VALIDITY OF THE
ACTS OF ONE SOVEREIGN STATE TO BE REEXAMINED AND PERHAPS CONDEMNED BY
THE COURTS OF ANOTHER WOULD VERY CERTAINLY 'IMPERIL THE AMICABLE
RELATIONS BETWEEN GOVERNMENTS AND VEX THE PEACE OF NATIONS.'"  ID., AT
303-304. 

IN RICAUD THE FACTS WERE SIMILAR - ANOTHER GENERAL OF THE CARRANZA
FORCES SEIZED LEAD BULLION AS A MILITARY LEVY - EXCEPT THAT THE
PROPERTY TAKEN BELONGED TO AN AMERICAN CITIZEN.  THE COURT FOUND
UNDERHILL, AMERICAN BANANA, AND OETJEN CONTROLLING.  COMMENTING ON THE
NATURE OF THE PRINCIPLE ESTABLISHED BY THOSE CASES, THE OPINION STATED
THAT THE RULE: 

"DOES NOT DEPRIVE THE COURTS OF JURISDICTION ONCE ACQUIRED OVER A
CASE.  IT REQUIRES ONLY THAT, WHEN IT IS MADE TO APPEAR THAT THE
FOREIGN GOVERNMENT HAS ACTED IN A GIVEN WAY ON THE SUBJECT-MATTER OF
THE LITIGATION, THE DETAILS OF SUCH ACTION OR THE MERIT OF THE RESULT
CANNOT BE QUESTIONED BUT MUST BE ACCEPTED BY OUR COURTS AS A RULE FOR
THEIR DECISION.  TO ACCEPT A RULING AUTHORITY AND TO DECIDE ACCORDINGLY
IS NOT A SURRENDER OR ABANDONMENT OF JURISDICTION BUT IS AN EXERCISE OF
IT.  IT RESULTS THAT THE TITLE TO THE PROPERTY IN THIS CASE MUST BE
DETERMINED BY THE RESULT OF THE ACTION TAKEN BY THE MILITARY
AUTHORITIES OF MEXICO  ...  ."  246 U.S., AT 309. 

TO THE SAME EFFECT IS THE LANGUAGE OF MR. JUSTICE CARDOZO IN THE
SHAPLEIGH CASE, SUPRA, WHERE, IN COMMENTING ON THE VALIDITY OF A
MEXICAN LAND EXPROPRIATION, HE SAID (299 U.S., AT 471):  "THE QUESTION
IS NOT HERE WHETHER THE PROCEEDING WAS SO CONDUCTED AS TO BE A WRONG TO
OUR NATIONALS UNDER THE DOCTRINES OF INTERNATIONAL LAW, THOUGH VALID
UNDER THE LAW OF THE SITUS OF THE LAND.  FOR WRONGS OF THAT ORDER THE
REMEDY TO BE FOLLOWED IS ALONG THE CHANNELS OF DIPLOMACY." 

IN DECIDING THE PRESENT CASE THE COURT OF APPEALS RELIED IN PART UPON
AN EXCEPTION TO THE UNQUALIFIED TEACHINGS OF UNDERHILL, OETJEN AND
RICAUD WHICH THAT COURT HAD EARLIER INDICATED.  IN BERNSTEIN V. VAN
HEYGHEN FRERES SOCIETE ANONYME, 163 F.2D 246, SUIT WAS BROUGHT TO
RECOVER FROM AN ASSIGNEE PROPERTY ALLEGEDLY TAKEN, IN EFFECT, BY THE
NAZI GOVERNMENT BECAUSE PLAINTIFF WAS JEWISH.  RECOGNIZING THE ODIOUS
NATURE OF THIS ACT OF STATE, THE COURT, THROUGH JUDGE LEARNED HAND,
NONETHELESS REFUSED TO CONSIDER IT INVALID ON THAT GROUND.  RATHER, IT
LOOKED TO SEE IF THE EXECUTIVE HAD ACTED IN ANY MANNER THAT WOULD
INDICATE THAT UNITED STATES COURTS SHOULD REFUSE TO GIVE EFFECT TO SUCH
A FOREIGN DECREE.  FINDING NO SUCH EVIDENCE, THE COURT SUSTAINED
DISMISSAL OF THE COMPLAINT.  IN A LATER CASE INVOLVING SIMILAR FACTS
THE SAME COURT AGAIN ASSUMED EXAMINATION OF THE GERMAN ACTS IMPROPER,
BERNSTEIN V. N.V. NEDERLANDSCHE-AMERIKAANSCHE STOOMVAART-MAATSCHAPPIJ,
173 F.2D 71, BUT, QUITE EVIDENTLY FOLLOWING THE IMPLICATIONS OF JUDGE
HAND'S OPINION IN THE EARLIER CASE, AMENDED ITS MANDATE TO PERMIT
EVIDENCE OF ALLEGED INVALIDITY, 210 F.2D 375, SUBSEQUENT TO RECEIPT BY
PLAINTIFF'S ATTORNEY OF A LETTER FROM THE ACTING LEGAL ADVISER TO THE
STATE DEPARTMENT WRITTEN FOR THE PURPOSE OF RELIEVING THE COURT FROM
ANY CONSTRAINT UPON THE EXERCISE OF ITS JURISDICTION TO PASS ON THAT
QUESTION.  (FN18) 

THIS COURT HAS NEVER HAD OCCASION TO PASS UPON THE SO-CALLED
BERNSTEIN EXCEPTION, NOR NEED IT DO SO NOW.  FOR WHATEVER AMBIGUITY MAY
BE THOUGHT TO EXIST IN THE TWO LETTERS FROM STATE DEPARTMENT OFFICIALS
ON WHICH THE COURT OF APPEALS RELIED, (FN19) 307 F.2D, AT 858, IS NOW
REMOVED BY THE POSITION WHICH THE EXECUTIVE HAS TAKEN IN THIS COURT ON
THE ACT OF STATE CLAIM; RESPONDENTS DO NOT INDEED CONTEST THE VIEW THAT
THESE LETTERS WERE INTENDED TO REFLECT NO MORE THAN THE DEPARTMENT'S
THEN WISH NOT TO MAKE ANY STATEMENT BEARING ON THIS LITIGATION. 

THE OUTCOME OF THIS CASE, THEREFORE, TURNS UPON WHETHER ANY OF THE
CONTENTIONS URGED BY RESPONDENTS AGAINST THE APPLICATION OF THE ACT OF
STATE DOCTRINE IN THE PREMISES IS ACCEPTABLE:  (1) THAT THE DOCTRINE
DOES NOT APPLY TO ACTS OF STATE WHICH VIOLATE INTERNATIONAL LAW, AS IS
CLAIMED TO BE THE CASE HERE; (2) THAT THE DOCTRINE IS INAPPLICABLE
UNLESS THE EXECUTIVE SPECIFICALLY INTERPOSES IT IN A PARTICULAR CASE;
AND (3) THAT, IN ANY EVENT, THE DOCTRINE MAY NOT BE INVOKED BY A
FOREIGN GOVERNMENT PLAINTIFF IN OUR COURTS. 

                                   V. 

PRELIMINARILY, WE DISCUSS THE FOUNDATIONS ON WHICH WE DEEM THE ACT OF
STATE DOCTRINE TO REST, AND MORE PARTICULARLY THE QUESTION OF WHETHER
STATE OR FEDERAL LAW GOVERNS ITS APPLICATION IN A FEDERAL DIVERSITY
CASE.  (FN20) 

WE DO NOT BELIEVE THAT THIS DOCTRINE IS COMPELLED EITHER BY THE
INHERENT NATURE OF SOVEREIGN AUTHORITY, AS SOME OF THE EARLIER
DECISIONS SEEM TO IMPLY, SEE UNDERHILL, SUPRA; AMERICAN BANANA, SUPRA;
OETJEN, SUPRA, AT 303, OR BY SOME PRINCIPLE OF INTERNATIONAL LAW.  IF A
TRANSACTION TAKES PLACE IN ONE JURISDICTION AND THE FORUM IS IN
ANOTHER, THE FORUM DOES NOT BY DISMISSING AN ACTION OR BY APPLYING ITS
OWN LAW PURPORT TO DIVEST THE FIRST JURISDICTION OF ITS TERRITORIAL
SOVEREIGNTY; IT MERELY DECLINES TO ADJUDICATE OR MAKES APPLICABLE ITS
OWN LAW TO PARTIES OR PROPERTY BEFORE IT.  THE REFUSAL OF ONE COUNTRY
TO ENFORCE THE PENAL LAWS OF ANOTHER (SUPRA, PP. 413-414) IS A TYPICAL
EXAMPLE OF AN INSTANCE WHEN A COURT WILL NOT ENTERTAIN A CAUSE OF
ACTION ARISING IN ANOTHER JURISDICTION.  WHILE HISTORIC NOTIONS OF
SOVEREIGN AUTHORITY DO BEAR UPON THE WISDOM OF EMPLOYING THE ACT OF
STATE DOCTRINE, THEY DO NOT DICTATE ITS EXISTENCE.    THAT
INTERNATIONAL LAW DOES NOT REQUIRE APPLICATION OF THE DOCTRINE IS
EVIDENCED BY THE PRACTICE OF NATIONS.  MOST OF THE COUNTRIES RENDERING
DECISIONS ON THE SUBJECT FAIL TO FOLLOW THE RULE RIGIDLY.  (FN21)  NO
INTERNATIONAL ARBITRAL OR JUDICIAL DECISION DISCOVERED SUGGESTS THAT
INTERNATIONAL LAW PRESCRIBES RECOGNITION OF SOVEREIGN ACTS OF FOREIGN
GOVERNMENTS, SEE 1 OPPENHEIM'S INTERNATIONAL LAW, SEC. 115AA
(LAUTERPACHT, 8TH ED. 1955), AND APPARENTLY NO CLAIM HAS EVER BEEN
RAISED BEFORE AN INTERNATIONAL TRIBUNAL THAT FAILURE TO APPLY THE ACT
OF STATE DOCTRINE CONSTITUTES A BREACH OF INTERNATIONAL OBLIGATION.  IF
INTERNATIONAL LAW DOES NOT PRESCRIBE USE OF THE DOCTRINE, NEITHER DOES
IT FORBID APPLICATION OF THE RULE EVEN IF IT IS CLAIMED THAT THE ACT OF
STATE IN QUESTION VIOLATED INTERNATIONAL LAW.  THE TRADITIONAL VIEW OF
INTERNATIONAL LAW IS THAT IT ESTABLISHES SUBSTANTIVE PRINCIPLES FOR
DETERMINING WHETHER ONE COUNTRY HAS WRONGED ANOTHER.  BECAUSE OF ITS
PECULIAR NATION-TO-NATION CHARACTER THE USUAL METHOD FOR AN INDIVIDUAL
TO SEEK RELIEF IS TO EXHAUST LOCAL REMEDIES AND THEN REPAIR TO THE
EXECUTIVE AUTHORITIES OF HIS OWN STATE TO PERSUADE THEM TO CHAMPION HIS
CLAIM IN DIPLOMACY OR BEFORE AN INTERNATIONAL TRIBUNAL.  SEE UNITED
STATES V. DIEKELMAN, 92 U.S. 520, 524.  ALTHOUGH IT IS, OF COURSE, TRUE
THAT UNITED STATES COURTS APPLY INTERNATIONAL LAW AS A PART OF OUR OWN
IN APPROPRIATE CIRCUMSTANCES, WARE V. HYLTON, 3 DALL.  199, 281; THE
NEREIDE, 9 CRANCH 388, 423; THE PAQUETE HABANA, 175 U.S. 677, 700, THE
PUBLIC LAW OF NATIONS CAN HARDLY DICTATE TO A COUNTRY WHICH IS IN
THEORY WRONGED HOW TO TREAT THAT WRONG WITHIN ITS DOMESTIC BORDERS. 

DESPITE THE BROAD STATEMENT IN OETJEN THAT "THE CONDUCT OF THE
FOREIGN RELATIONS OF OUR GOVERNMENT IS COMMITTED BY THE CONSTITUTION TO
THE EXECUTIVE AND LEGISLATIVE  ...  DEPARTMENTS," 246 U.S., AT 302, IT
CANNOT OF COURSE BE THOUGHT THAT "EVERY CASE OR CONTROVERSY WHICH
TOUCHES FOREIGN RELATIONS LIES BEYOND JUDICIAL COGNIZANCE."  BAKER V.
CARR, 369 U.S. 186, 211.  THE TEXT OF THE CONSTITUTION DOES NOT REQUIRE
THE ACT OF STATE DOCTRINE; IT DOES NOT IRREVOCABLY REMOVE FROM THE
JUDICIARY THE CAPACITY TO REVIEW THE VALIDITY OF FOREIGN ACTS OF
STATE. 

THE ACT OF STATE DOCTRINE DOES, HOWEVER, HAVE "CONSTITUTIONAL"
UNDERPINNINGS.  IT ARISES OUT OF THE BASIC RELATIONSHIPS BETWEEN
BRANCHES OF GOVERNMENT IN A SYSTEM OF SEPARATION OF POWERS.  IT
CONCERNS THE COMPETENCY OF DISSIMILAR INSTITUTIONS TO MAKE AND
IMPLEMENT PARTICULAR KINDS OF DECISIONS IN THE AREA OF INTERNATIONAL
RELATIONS.  THE DOCTRINE AS FORMULATED IN PAST DECISIONS EXPRESSES THE
STRONG SENSE OF THE JUDICIAL BRANCH THAT ITS ENGAGEMENT IN THE TASK OF
PASSING ON THE VALIDITY OF FOREIGN ACTS OF STATE MAY HINDER RATHER THAN
FURTHER THIS COUNTRY'S PURSUIT OF GOALS BOTH FOR ITSELF AND FOR THE
COMMUNITY OF NATIONS AS A WHOLE IN THE INTERNATIONAL SPHERE.  MANY
COMMENTATORS DISAGREE WITH THIS VIEW; (FN22) THEY HAVE STRIVEN BY MEANS
OF DISTINGUISHING AND LIMITING PAST DECISIONS AND BY ADVANCING VARIOUS
CONSIDERATIONS OF POLICY TO STIMULATE A NARROWING OF THE APPARENT SCOPE
OF THE RULE.  WHATEVER CONSIDERATIONS ARE THOUGHT TO PREDOMINATE, IT IS
PLAIN THAT THE PROBLEMS INVOLVED ARE UNIQUELY FEDERAL IN NATURE.  IF
FEDERAL AUTHORITY, IN THIS INSTANCE THIS COURT, ORDERS THE FIELD OF
JUDICIAL COMPETENCE IN THIS AREA FOR THE FEDERAL COURTS, AND THE STATE
COURTS ARE LEFT FREE TO FORMULATE THEIR OWN RULES, THE PURPOSES BEHIND
THE DOCTRINE COULD BE AS EFFECTIVELY UNDERMINED AS IF THERE HAD BEEN NO
FEDERAL PRONOUNCEMENT ON THE SUBJECT. 

WE COULD PERHAPS IN THIS DIVERSITY ACTION AVOID THE QUESTION OF
DECIDING WHETHER FEDERAL OR STATE LAW IS APPLICABLE TO THIS ASPECT OF
THE LITIGATION.  NEW YORK HAS ENUNCIATED THE ACT OF STATE DOCTRINE IN
TERMS THAT ECHO THOSE OF FEDERAL DECISIONS DECIDED DURING THE REIGN OF
SWIFT V. TYSON, 16 PET. 1.  IN HATCH V. BAEZ, 7 HUN 596, 599 (N.Y. SUP.
CT.), UNDERHILL WAS FORESHADOWED BY THE WORDS, "THE COURTS OF ONE
COUNTRY ARE BOUND TO ABSTAIN FROM SITTING IN JUDGMENT ON THE ACTS OF
ANOTHER GOVERNMENT DONE WITHIN ITS OWN TERRITORY."  MORE RECENTLY, THE
COURT OF APPEALS IN SALIMOFF & CO. V. STANDARD OIL CO., 262 N.Y. 220,
224, 186 N.E. 679, 681, HAS DECLARED, "THE COURTS OF ONE INDEPENDENT
GOVERNMENT WILL NOT SIT IN JUDGMENT UPON THE VALIDITY OF THE ACTS OF
ANOTHER DONE WITHIN ITS OWN TERRITORY, EVEN WHEN SUCH GOVERNMENT SEIZES
AND SELLS THE PROPERTY OF AN AMERICAN CITIZEN WITHIN ITS BOUNDARIES." 
CF. DOUGHERTY V. EQUITABLE LIFE ASSURANCE SOCIETY, 266 N.Y. 71, 193
N.E. 897; HOLZER V. DEUTSCHE REICHSBAHN-GESELLSCHAFT, 277 N.Y. 474, 14
N.E.2D 798.  BUT CF. FRENKEL & CO. V. L'URBAINE FIRE INS. CO., 251 N.Y.
243, 167 N.E. 430.  THUS OUR CONCLUSIONS MIGHT WELL BE THE SAME WHETHER
WE DEALT WITH THIS PROBLEM AS ONE OF STATE LAW, SEE ERIE R. CO. V.
TOMPKINS, 304 U.S. 64; KLAXON CO. V. STENTOR ELEC.  MFG.  CO., 313 U.S.
487; GRIFFIN V. MCCOACH, 313 U.S. 498, OR FEDERAL LAW. 

HOWEVER, WE ARE CONSTRAINED TO MAKE IT CLEAR THAT AN ISSUE CONCERNED
WITH A BASIC CHOICE REGARDING THE COMPETENCE AND FUNCTION OF THE
JUDICIARY AND THE NATIONAL EXECUTIVE IN ORDERING OUR RELATIONSHIPS WITH
OTHER MEMBERS OF THE INTERNATIONAL COMMUNITY MUST BE TREATED
EXCLUSIVELY AS AN ASPECT OF FEDERAL LAW.  (FN23)  IT SEEMS FAIR TO
ASSUME THAT THE COURT DID NOT HAVE RULES LIKE THE ACT OF STATE DOCTRINE
IN MIND WHEN IT DECIDED ERIE R. CO. V. TOMPKINS.  SOON THEREAFTER,
PROFESSOR PHILIP C. JESSUP, NOW A JUDGE OF THE INTERNATIONAL COURT OF
JUSTICE, RECOGNIZED THE POTENTIAL DANGERS WERE ERIE EXTENDED TO LEGAL
PROBLEMS AFFECTING INTERNATIONAL RELATIONS.  (FN24)  HE CAUTIONED THAT
RULES OF INTERNATIONAL LAW SHOULD NOT BE LEFT TO DIVERGENT AND PERHAPS
PAROCHIAL STATE INTERPRETATIONS.  HIS BASIC RATIONALE IS EQUALLY
APPLICABLE TO THE ACT OF STATE DOCTRINE. 

THE COURT IN THE PRE-ERIE ACT OF STATE CASES, ALTHOUGH NOT BURDENED
BY THE PROBLEM OF THE SOURCE OF APPLICABLE LAW, USED LANGUAGE
SUFFICIENTLY STRONG AND BROAD-SWEEPING TO SUGGEST THAT STATE COURTS
WERE NOT LEFT FREE TO DEVELOP THEIR OWN DOCTRINES (AS THEY WOULD HAVE
BEEN HAD THIS COURT MERELY BEEN INTERPRETING COMMON LAW UNDER SWIFT V.
TYSON, SUPRA).  THE COURT OF APPEALS IN THE FIRST BERNSTEIN CASE,
SUPRA, A DIVERSITY SUIT, PLAINLY CONSIDERED THE DECISIONS OF THIS
COURT, DESPITE THE INTERVENTION OF ERIE, TO BE CONTROLLING IN REGARD TO
THE ACT OF STATE QUESTION, AT THE SAME TIME INDICATING THAT NEW YORK
LAW GOVERNED OTHER ASPECTS OF THE CASE.  WE ARE NOT WITHOUT OTHER
PRECEDENT FOR A DETERMINATION THAT FEDERAL LAW GOVERNS; THERE ARE
ENCLAVES OF FEDERAL JUDGE-MADE LAW WHICH BIND THE STATES.  A NATIONAL
BODY OF FEDERAL-COURT-BUILT LAW HAS BEEN HELD TO HAVE BEEN CONTEMPLATED
BY SEC. 301 OF THE LABOR MANAGEMENT RELATIONS ACT, TEXTILE WORKERS V.
LINCOLN MILLS, 353 U.S. 448.  PRINCIPLES FORMULATED BY FEDERAL JUDICIAL
LAW HAVE BEEN THOUGHT BY THIS COURT TO BE NECESSARY TO PROTECT UNIQUELY
FEDERAL INTERESTS, D'OENCH, DUHME & CO. V. FEDERAL DEPOSIT INS. CORP.,
315 U.S. 447; CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363.  OF
COURSE THE FEDERAL INTEREST GUARDED IN ALL THESE CASES IS ONE THE
ULTIMATE STATEMENT OF WHICH IS DERIVED FROM A FEDERAL STATUTE.  PERHAPS
MORE DIRECTLY IN POINT ARE THE BODIES OF LAW APPLIED BETWEEN STATES
OVER BOUNDARIES AND IN REGARD TO THE APPORTIONMENT OF INTERSTATE
WATERS. 

IN HINDERLIDER V. LA PLATA RIVER CO., 304 U.S. 92, 110, IN AN OPINION
HANDED DOWN THE SAME DAY AS ERIE AND BY THE SAME AUTHOR, MR. JUSTICE
BRANDEIS, THE COURT DECLARED, "FOR WHETHER THE WATER OF AN INTERSTATE
STREAM MUST BE APPORTIONED BETWEEN THE TWO STATES IS A QUESTION OF
'FEDERAL COMMON LAW' UPON WHICH NEITHER THE STATUTES NOR THE DECISIONS
OF EITHER STATE CAN BE CONCLUSIVE."  ALTHOUGH THE SUIT WAS BETWEEN TWO
PRIVATE LITIGANTS AND THE RELEVANT STATES COULD NOT BE MADE PARTIES,
THE COURT CONSIDERED ITSELF FREE TO DETERMINE THE EFFECT OF AN
INTERSTATE COMPACT REGULATING WATER APPORTIONMENT.  THE DECISION
IMPLIES THAT NO STATE CAN UNDERMINE THE FEDERAL INTEREST IN EQUITABLY
APPORTIONED INTERSTATE WATERS EVEN IF IT DEALS WITH PRIVATE PARTIES. 
THIS WOULD NOT MEAN THAT, ABSENT A COMPACT, THE APPORTIONMENT SCHEME
COULD NOT BE CHANGED JUDICIALLY OR BY CONGRESS, BUT ONLY THAT
APPORTIONMENT IS A MATTER OF FEDERAL LAW.  CF. ARIZONA V. CALIFORNIA,
373 U.S. 546, 597-598.  THE PROBLEMS SURROUNDING THE ACT OF STATE
DOCTRINE ARE, ALBEIT FOR DIFFERENT REASONS, AS INTRINSICALLY FEDERAL AS
ARE THOSE INVOLVED IN WATER APPORTIONMENT OR BOUNDARY DISPUTES.  THE
CONSIDERATIONS SUPPORTING EXCLUSION OF STATE AUTHORITY HERE ARE MUCH
LIKE THOSE WHICH LED THE COURT IN UNITED STATES V. CALIFORNIA, 332 U.S.
19, TO HOLD THAT THE FEDERAL GOVERNMENT POSSESSED PARAMOUNT RIGHTS IN
SUBMERGED LANDS THOUGH WITHIN THE THREE-MILE LIMIT OF COASTAL STATES. 
WE CONCLUDE THAT THE SCOPE OF THE ACT OF STATE DOCTRINE MUST BE
DETERMINED ACCORDING TO FEDERAL LAW.  (FN25)

  VI. 

IF THE ACT OF STATE DOCTRINE IS A PRINCIPLE OF DECISION BINDING ON
FEDERAL AND STATE COURTS ALIKE BUT COMPELLED BY NEITHER INTERNATIONAL
LAW NOR THE CONSTITUTION, ITS CONTINUING VITALITY DEPENDS ON ITS
CAPACITY TO REFLECT THE PROPER DISTRIBUTION OF FUNCTIONS BETWEEN THE
JUDICIAL AND POLITICAL BRANCHES OF THE GOVERNMENT ON MATTERS BEARING
UPON FOREIGN AFFAIRS.  IT SHOULD BE APPARENT THAT THE GREATER THE
DEGREE OF CODIFICATION OR CONSENSUS CONCERNING A PARTICULAR AREA OF
INTERNATIONAL LAW, THE MORE APPROPRIATE IT IS FOR THE JUDICIARY TO
RENDER DECISIONS REGARDING IT, SINCE THE COURTS CAN THEN FOCUS ON THE
APPLICATION OF AN AGREED PRINCIPLE TO CIRCUMSTANCES OF FACT RATHER THAN
ON THE SENSITIVE TASK OF ESTABLISHING A PRINCIPLE NOT INCONSISTENT WITH
THE NATIONAL INTEREST OR WITH INTERNATIONAL JUSTICE.  IT IS ALSO
EVIDENT THAT SOME ASPECTS OF INTERNATIONAL LAW TOUCH MUCH MORE SHARPLY
ON NATIONAL NERVES THAN DO OTHERS; THE LESS IMPORTANT THE IMPLICATIONS
OF AN ISSUE ARE FOR OUR FOREIGN RELATIONS, THE WEAKER THE JUSTIFICATION
FOR EXCLUSIVITY IN THE POLITICAL BRANCHES.  THE BALANCE OF RELEVANT
CONSIDERATIONS MAY ALSO BE SHIFTED IF THE GOVERNMENT WHICH PERPETRATED
THE CHALLENGED ACT OF STATE IS NO LONGER IN EXISTENCE, AS IN THE
BERNSTEIN CASE, FOR THE POLITICAL INTEREST OF THIS COUNTRY MAY, AS A
RESULT, BE MEASURABLY ALTERED.  THEREFORE, RATHER THAN LAYING DOWN OR
REAFFIRMING AN INFLEXIBLE AND ALL-ENCOMPASSING RULE IN THIS CASE, WE
DECIDE ONLY THAT THE JUDICIAL BRANCH WILL NOT EXAMINE THE VALIDITY OF A
TAKING OF PROPERTY WITHIN ITS OWN TERRITORY BY A FOREIGN SOVEREIGN
GOVERNMENT, EXTANT AND RECOGNIZED BY THIS COUNTRY AT THE TIME OF SUIT,
IN THE ABSENCE OF A TREATY OR OTHER UNAMBIGUOUS AGREEMENT REGARDING
CONTROLLING LEGAL PRINCIPLES, EVEN IF THE COMPLAINT ALLEGES THAT THE
TAKING VIOLATES CUSTOMARY INTERNATIONAL LAW. 

THERE ARE FEW IF ANY ISSUES IN INTERNATIONAL LAW TODAY ON WHICH
OPINION SEEMS TO BE SO DIVIDED AS THE LIMITATIONS ON A STATE'S POWER TO
EXPROPRIATE THE PROPERTY OF ALIENS.  (FN26)  THERE IS, OF COURSE,
AUTHORITY, IN INTERNATIONAL JUDICIAL (FN27) AND ARBITRAL (FN28)
DECISIONS, IN THE EXPRESSIONS OF NATIONAL GOVERNMENTS, (FN29) AND AMONG
COMMENTATORS (FN30) FOR THE VIEW THAT A TAKING IS IMPROPER UNDER
INTERNATIONAL LAW IF IT IS NOT FOR A PUBLIC PURPOSE, IS DISCRIMINATORY,
OR IS WITHOUT PROVISION FOR PROMPT, ADEQUATE, AND EFFECTIVE
COMPENSATION.  HOWEVER, COMMUNIST COUNTRIES, ALTHOUGH THEY HAVE IN FACT
PROVIDED A DEGREE OF COMPENSATION AFTER DIPLOMATIC EFFORTS, COMMONLY
RECOGNIZE NO OBLIGATION ON THE PART OF THE TAKING COUNTRY.  (FN31)
CERTAIN REPRESENTATIVES OF THE NEWLY INDEPENDENT AND UNDERDEVELOPED
COUNTRIES HAVE QUESTIONED WHETHER RULES OF STATE RESPONSIBILITY TOWARD
ALIENS CAN BIND NATIONS THAT HAVE NOT CONSENTED TO THEM (FN32) AND IT
IS ARGUED THAT THE TRADITIONALLY ARTICULATED STANDARDS GOVERNING
EXPROPRIATION OF PROPERTY REFLECT "IMPERIALIST" INTERESTS AND ARE
INAPPROPRIATE TO THE CIRCUMSTANCES OF EMERGENT STATES.  (FN33) 

THE DISAGREEMENT AS TO RELEVANT INTERNATIONAL LAW STANDARDS REFLECTS
AN EVEN MORE BASIC DIVERGENCE BETWEEN THE NATIONAL INTERESTS OF CAPITAL
IMPORTING AND CAPITAL EXPORTING NATIONS AND BETWEEN THE SOCIAL
IDEOLOGIES OF THOSE COUNTRIES THAT FAVOR STATE CONTROL OF A
CONSIDERABLE PORTION OF THE MEANS OF PRODUCTION AND THOSE THAT ADHERE
TO A FREE ENTERPRISE SYSTEM.  IT IS DIFFICULT TO IMAGINE THE COURTS OF
THIS COUNTRY EMBARKING ON ADJUDICATION IN AN AREA WHICH TOUCHES MORE
SENSITIVELY THE PRACTICAL AND IDEOLOGICAL GOALS OF THE VARIOUS MEMBERS
OF THE COMMUNITY OF NATIONS.  (FN34) 

WHEN WE CONSIDER THE PROSPECT OF THE COURTS CHARACTERIZING FOREIGN
EXPROPRIATIONS, HOWEVER JUSTIFIABLY, AS INVALID UNDER INTERNATIONAL LAW
AND INEFFECTIVE TO PASS TITLE, THE WISDOM OF THE PRECEDENTS IS
CONFIRMED.  WHILE EACH OF THE LEADING CASES IN THIS COURT MAY BE ARGUED
TO BE DISTINGUISHABLE ON ITS FACTS FROM THIS ONE - UNDERHILL BECAUSE
SOVEREIGN IMMUNITY PROVIDED AN INDEPENDENT GROUND AND OETJEN, RICAUD
AND SHAPLEIGH BECAUSE THERE WAS ACTUALLY NO VIOLATION OF INTERNATIONAL
LAW - THE PLAIN IMPLICATION OF ALL THESE OPINIONS, AND THE IMPORT OF
EXPRESS STATEMENTS IN OETJEN, 246 U.S., AT 304, AND SHAPLEIGH, 299
U.S., AT 471, IS THAT THE ACT OF STATE DOCTRINE IS APPLICABLE EVEN IF
INTERNATIONAL LAW HAS BEEN VIOLATED.  IN RICAUD, THE ONE CASE OF THE
THREE MOST PLAUSIBLY INVOLVING AN INTERNATIONAL LAW VIOLATION, THE
POSSIBILITY OF AN EXCEPTION TO THE ACT OF STATE DOCTRINE WAS NOT
DISCUSSED.  SOME COMMENTATORS HAVE CONCLUDED THAT IT WAS NOT BROUGHT TO
THE COURT'S ATTENTION, (FN35) BUT JUSTICE CLARKE DELIVERED BOTH THE
OETJEN AND RICAUD OPINIONS, ON THE SAME DAY, SO WE CAN ASSUME THAT
PRINCIPLES STATED IN THE FORMER WERE APPLICABLE TO THE LATTER CASE. 
THE POSSIBLE ADVERSE CONSEQUENCES OF A CONCLUSION TO THE CONTRARY OF
THAT IMPLICIT IN THESE CASES IS HIGHLIGHTED BY CONTRASTING THE
PRACTICES OF THE POLITICAL BRANCH WITH THE LIMITATIONS OF THE JUDICIAL
PROCESS IN MATTERS OF THIS KIND.  FOLLOWING AN EXPROPRIATION OF ANY
SIGNIFICANCE, THE EXECUTIVE ENGAGES IN DIPLOMACY AIMED TO ASSURE THAT
UNITED STATES CITIZENS WHO ARE HARMED ARE COMPENSATED FAIRLY. 
REPRESENTING ALL CLAIMANTS OF THIS COUNTRY, IT WILL OFTEN BE ABLE,
EITHER BY BILATERAL OR MULTILATERAL TALKS, BY SUBMISSION TO THE UNITED
NATIONS, OR BY THE EMPLOYMENT OF ECONOMIC AND POLITICAL SANCTIONS, TO
ACHIEVE SOME DEGREE OF GENERAL REDRESS.  JUDICIAL DETERMINATIONS OF
INVALIDITY OF TITLE CAN, ON THE OTHER HAND, HAVE ONLY AN OCCASIONAL
IMPACT, SINCE THEY DEPEND ON THE FORTUITOUS CIRCUMSTANCE OF THE
PROPERTY IN QUESTION BEING BROUGHT INTO THIS COUNTRY.  (FN36)  SUCH
DECISIONS WOULD, IF THE ACTS INVOLVED WERE DECLARED INVALID, OFTEN BE
LIKELY TO GIVE OFFENSE TO THE EXPROPRIATING COUNTRY; SINCE THE CONCEPT
OF TERRITORIAL SOVEREIGNTY IS SO DEEP SEATED, ANY STATE MAY RESENT THE
REFUSAL OF THE COURTS OF ANOTHER SOVEREIGN TO ACCORD VALIDITY TO ACTS
WITHIN ITS TERRITORIAL BORDERS.  PIECEMEAL DISPOSITIONS OF THIS SORT
INVOLVING THE PROBABILITY OF AFFRONT TO ANOTHER STATE COULD SERIOUSLY
INTERFERE WITH NEGOTIATIONS BEING CARRIED ON BY THE EXECUTIVE BRANCH
AND MIGHT PREVENT OR RENDER LESS FAVORABLE THE TERMS OF AN AGREEMENT
THAT COULD OTHERWISE BE REACHED.  RELATIONS WITH THIRD COUNTRIES WHICH
HAVE ENGAGED IN SIMILAR EXPROPRIATIONS WOULD NOT BE IMMUNE FROM
EFFECT. 

THE DANGERS OF SUCH ADJUDICATION ARE PRESENT REGARDLESS OF WHETHER
THE STATE DEPARTMENT HAS, AS IT DID IN THIS CASE, ASSERTED THAT THE
RELEVANT ACT VIOLATED INTERNATIONAL LAW.  IF THE EXECUTIVE BRANCH HAS
UNDERTAKEN NEGOTIATIONS WITH AN EXPROPRIATING COUNTRY, BUT HAS
REFRAINED FROM CLAIMS OF VIOLATION OF THE LAW OF NATIONS, A
DETERMINATION TO THAT EFFECT BY A COURT MIGHT BE REGARDED AS A SERIOUS
INSULT, WHILE A FINDING OF COMPLIANCE WITH INTERNATIONAL LAW WOULD
GREATLY STRENGTHEN THE BARGAINING HAND OF THE OTHER STATE WITH
CONSEQUENT DETRIMENT TO AMERICAN INTERESTS. 

EVEN IF THE STATE DEPARTMENT HAS PROCLAIMED THE IMPROPRIETY OF THE
EXPROPRIATION, THE STAMP OF APPROVAL OF ITS VIEW BY A JUDICIAL
TRIBUNAL, HOWEVER IMPARTIAL, MIGHT INCREASE ANY AFFRONT AND THE
JUDICIAL DECISION MIGHT OCCUR AT A TIME, ALMOST ALWAYS WELL AFTER THE
TAKING, WHEN SUCH AN IMPACT WOULD BE CONTRARY TO OUR NATIONAL
INTEREST.  CONSIDERABLY MORE SERIOUS AND FAR-REACHING CONSEQUENCES
WOULD FLOW FROM A JUDICIAL FINDING THAT INTERNATIONAL LAW STANDARDS HAD
BEEN MET IF THAT DETERMINATION FLEW IN THE FACE OF A STATE DEPARTMENT
PROCLAMATION TO THE CONTRARY.  WHEN ARTICULATING PRINCIPLES OF
INTERNATIONAL LAW IN ITS RELATIONS WITH OTHER STATES, THE EXECUTIVE
BRANCH SPEAKS NOT ONLY AS AN INTERPRETER OF GENERALLY ACCEPTED AND
TRADITIONAL RULES, AS WOULD THE COURTS, BUT ALSO AS AN ADVOCATE OF
STANDARDS IT BELIEVES DESIRABLE FOR THE COMMUNITY OF NATIONS AND
PROTECTIVE OF NATIONAL CONCERNS.  IN SHORT, WHATEVER WAY THE MATTER IS
CUT, THE POSSIBILITY OF CONFLICT BETWEEN THE JUDICIAL AND EXECUTIVE
BRANCHES COULD HARDLY BE AVOIDED. 

RESPONDENTS CONTEND THAT, EVEN IF THERE IS NOT AGREEMENT REGARDING
GENERAL STANDARDS FOR DETERMINING THE VALIDITY OF EXPROPRIATIONS, THE
ALLEGED COMBINATION OF RETALIATION, DISCRIMINATION, AND INADEQUATE
COMPENSATION MAKES IT PATENTLY CLEAR THAT THIS PARTICULAR EXPROPRIATION
WAS IN VIOLATION OF INTERNATIONAL LAW.  (FN37)  IF THIS VIEW IS
ACCURATE, IT WOULD STILL BE UNWISE FOR THE COURTS SO TO DETERMINE. 
SUCH A DECISION NOW WOULD REQUIRE THE DRAWING OF MORE DIFFICULT LINES
IN SUBSEQUENT CASES AND THESE WOULD INVOLVE THE POSSIBILITY OF CONFLICT
WITH THE EXECUTIVE VIEW.  EVEN IF THE COURTS AVOIDED THIS COURSE,
EITHER BY PRESUMING THE VALIDITY OF AN ACT OF STATE WHENEVER THE
INTERNATIONAL LAW STANDARD WAS THOUGHT UNCLEAR OR BY FOLLOWING THE
STATE DEPARTMENT DECLARATION IN SUCH A SITUATION, THE VERY EXPRESSION
OF JUDICIAL UNCERTAINTY MIGHT PROVIDE EMBARRASSMENT TO THE EXECUTIVE
BRANCH. 

ANOTHER SERIOUS CONSEQUENCE OF THE EXCEPTION PRESSED BY RESPONDENTS
WOULD BE TO RENDER UNCERTAIN TITLES IN FOREIGN COMMERCE, WITH THE
POSSIBLE CONSEQUENCE OF ALTERING THE FLOW OF INTERNATIONAL TRADE. 
(FN38)  IF THE ATTITUDE OF THE UNITED STATES COURTS WERE UNCLEAR, ONE
BUYING EXPROPRIATED GOODS WOULD NOT KNOW IF HE COULD SAFELY IMPORT THEM
INTO THIS COUNTRY.  EVEN WERE TAKINGS KNOWN TO BE INVALID, ONE WOULD
HAVE DIFFICULTY DETERMINING AFTER GOODS HAD CHANGED HANDS SEVERAL TIMES
WHETHER THE PARTICULAR ARTICLES IN QUESTION WERE THE PRODUCT OF AN
INEFFECTIVE STATE ACT.  (FN39) 

AGAINST THE FORCE OF SUCH CONSIDERATIONS, WE FIND RESPONDENTS'
COUNTERVAILING ARGUMENTS QUITE UNPERSUASIVE.  THEIR BASIC CONTENTION IS
THAT UNITED STATES COURTS COULD MAKE A SIGNIFICANT CONTRIBUTION TO THE
GROWTH OF INTERNATIONAL LAW, A CONTRIBUTION WHOSE IMPORTANCE IT IS
SAID, WOULD BE MAGNIFIED BY THE RELATIVE PAUCITY OF DECISIONAL LAW BY
INTERNATIONAL BODIES.  BUT GIVEN THE FLUIDITY OF PRESENT WORLD
CONDITIONS, THE EFFECTIVENESS OF SUCH A PATCHWORK APPROACH TOWARD THE
FORMULATION OF AN ACCEPTABLE BODY OF LAW CONCERNING STATE
RESPONSIBILITY FOR EXPROPRIATIONS IS, TO SAY THE LEAST, HIGHLY
CONJECTURAL.  MOREOVER, IT RESTS UPON THE SANGUINE PRESUPPOSITION THAT
THE DECISIONS OF THE COURTS OF THE WORLD'S MAJOR CAPITAL EXPORTING
COUNTRY AND PRINCIPAL EXPONENT OF THE FREE ENTERPRISE SYSTEM WOULD BE
ACCEPTED AS DISINTERESTED EXPRESSIONS OF SOUND LEGAL PRINCIPLE BY THOSE
ADHERING TO WIDELY DIFFERENT IDEOLOGIES. 

IT IS CONTENDED THAT REGARDLESS OF THE FORTUITOUS CIRCUMSTANCES
NECESSARY FOR UNITED STATES JURISDICTION OVER A CASE INVOLVING A
FOREIGN ACT OF STATE AND THE RESULTANT ISOLATED APPLICATION TO ANY
EXPROPRIATION PROGRAM TAKEN AS A WHOLE, IT IS THE FUNCTION OF THE
COURTS TO JUSTLY DECIDE INDIVIDUAL DISPUTES BEFORE THEM.  PERHAPS THE
MOST TYPICAL ACT OF STATE CASE INVOLVES THE ORIGINAL OWNER OR HIS
ASSIGNEE SUING ONE NOT IN ASSOCIATION WITH THE EXPROPRIATING STATE WHO
HAS HAD "TITLE" TRANSFERRED TO HIM.  BUT IT IS DIFFICULT TO REGARD THE
CLAIM OF THE ORIGINAL OWNER, WHO OTHERWISE MAY BE RECOMPENSED THROUGH
DIPLOMATIC CHANNELS, AS MORE DEMANDING OF JUDICIAL COGNIZANCE THAN THE
CLAIM OF TITLE BY THE INNOCENT THIRD PARTY PURCHASER, WHO, IF THE
PROPERTY IS TAKEN FROM HIM, IS WITHOUT ANY REMEDY. 

RESPONDENTS CLAIM THAT THE ECONOMIC PRESSURE RESULTING FROM THE
PROPOSED EXCEPTION TO THE ACT OF STATE DOCTRINE WILL MATERIALLY ADD TO
THE PROTECTION OF UNITED STATES INVESTORS.  WE ARE NOT CONVINCED, EVEN
ASSUMING THE RELEVANCE OF THIS CONTENTION.  EXPROPRIATIONS TAKE PLACE
FOR A VARIETY OF REASONS, POLITICAL AND IDEOLOGICAL AS WELL AS
ECONOMIC.  WHEN ONE CONSIDERS THE VARIETY OF MEANS POSSESSED BY THIS
COUNTRY TO MAKE SECURE FOREIGN INVESTMENT, THE PERSUASIVE OR COERCIVE
EFFECT OF JUDICIAL INVALIDATION OF ACTS OF EXPROPRIATION DWINDLES IN
COMPARISON.  THE NEWLY INDEPENDENT STATES ARE IN NEED OF CONTINUING
FOREIGN INVESTMENT; THE CREATION OF A CLIMATE UNFAVORABLE TO SUCH
INVESTMENT BY WHOLESALE CONFISCATIONS MAY WELL WORK TO THEIR LONG-RUN
ECONOMIC DISADVANTAGE.  FOREIGN AID GIVEN TO MANY OF THESE COUNTRIES
PROVIDES A POWERFUL LEVER IN THE HANDS OF THE POLITICAL BRANCHES TO
ENSURE FAIR TREATMENT OF UNITED STATES NATIONALS.  ULTIMATELY THE
SANCTIONS OF ECONOMIC EMBARGO AND THE FREEZING OF ASSETS IN THIS
COUNTRY MAY BE EMPLOYED.  ANY COUNTRY WILLING TO BRAVE ANY OR ALL OF
THESE CONSEQUENCES IS UNLIKELY TO BE DETERRED BY SPORADIC JUDICIAL
DECISIONS DIRECTLY AFFECTING ONLY PROPERTY BROUGHT TO OUR SHORES.  IF
THE POLITICAL BRANCHES ARE UNWILLING TO EXERCISE THEIR AMPLE POWERS TO
EFFECT COMPENSATION, THIS REFLECTS A JUDGMENT OF THE NATIONAL INTEREST
WHICH THE JUDICIARY WOULD BE ILL-ADVISED TO UNDERMINE INDIRECTLY. 

IT IS SUGGESTED THAT IF THE ACT OF STATE DOCTRINE IS APPLICABLE TO
VIOLATIONS OF INTERNATIONAL LAW, IT SHOULD ONLY BE SO WHEN THE
EXECUTIVE BRANCH EXPRESSLY STIPULATES THAT IT DOES NOT WISH THE COURTS
TO PASS ON THE QUESTION OF VALIDITY.  SEE ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK, COMMITTEE ON INTERNATIONAL LAW, A RECONSIDERATION OF
THE ACT OF STATE DOCTRINE IN UNITED STATES COURTS (1959).  WE SHOULD BE
SLOW TO REJECT THE REPRESENTATIONS OF THE GOVERNMENT THAT SUCH A
REVERSAL OF THE BERNSTEIN PRINCIPLE WOULD WORK SERIOUS INROADS ON THE
MAXIMUM EFFECTIVENESS OF UNITED STATES DIPLOMACY.  OFTEN THE STATE
DEPARTMENT WILL WISH TO REFRAIN FROM TAKING AN OFFICIAL POSITION,
PARTICULARLY AT A MOMENT THAT WOULD BE DICTATED BY THE DEVELOPMENT OF
PRIVATE LITIGATION BUT MIGHT BE INOPPORTUNE DIPLOMATICALLY.  ADVERSE
DOMESTIC CONSEQUENCES MIGHT FLOW FROM AN OFFICIAL STAND WHICH COULD BE
ASSUAGED, IF AT ALL, ONLY BY REVEALING MATTERS BEST KEPT SECRET.  OF
COURSE, A RELEVANT CONSIDERATION FOR THE STATE DEPARTMENT WOULD BE THE
POSITION CONTEMPLATED IN THE COURT TO HEAR THE CASE.  IT IS HIGHLY
QUESTIONABLE WHETHER THE EXAMINATION OF VALIDITY BY THE JUDICIARY
SHOULD DEPEND ON AN EDUCATED GUESS BY THE EXECUTIVE AS TO PROBABLE
RESULT AND, AT ANY RATE, SHOULD A PREDICTION BE WRONG, THE EXECUTIVE
MIGHT BE EMBARRASSED IN ITS DEALINGS WITH OTHER COUNTRIES.  WE DO NOT
NOW PASS ON THE BERNSTEIN EXCEPTION, BUT EVEN IF IT WERE DEEMED VALID,
ITS SUGGESTED EXTENTION IS UNWARRANTED. 

HOWEVER OFFENSIVE TO THE PUBLIC POLICY OF THIS COUNTRY AND ITS
CONSTITUENT STATES AN EXPROPRIATION OF THIS KIND MAY BE, WE CONCLUDE
THAT BOTH THE NATIONAL INTEREST AND PROGRESS TOWARD THE GOAL OF
ESTABLISHING THE RULE OF LAW AMONG NATIONS ARE BEST SERVED BY
MAINTAINING INTACT THE ACT OF STATE DOCTRINE IN THIS REALM OF ITS
APPLICATION. 

              VII. 

FINALLY, WE MUST DETERMINE WHETHER CUBA'S STATUS AS A PLAINTIFF IN
THIS CASE DICTATES A RESULT AT VARIANCE WITH THE CONCLUSIONS REACHED
ABOVE.  IF THE COURT WERE TO DISTINGUISH BETWEEN SUITS BROUGHT BY
SOVEREIGN STATES AND THOSE OF ASSIGNEES, THE RULE WOULD HAVE LITTLE
EFFECT UNLESS A CAREFUL EXAMINATION WERE MADE IN EACH CASE TO DETERMINE
IF THE PRIVATE PARTY SUING HAD TAKEN PROPERTY IN GOOD FAITH.  SUCH AN
INQUIRY WOULD BE EXCEPTIONALLY DIFFICULT, SINCE THE RELEVANT
TRANSACTION WOULD ALMOST INVARIABLY HAVE OCCURRED OUTSIDE OUR BORDERS. 
IF SUCH AN INVESTIGATION WERE DEEMED IRRELEVANT, A STATE COULD ALWAYS
ASSIGN ITS CLAIM. 

IT IS TRUE THAT THE PROBLEM OF SECURITY OF TITLE IS NOT DIRECTLY
PRESENTED IN THE INSTANCE OF A SOVEREIGN PLAINTIFF, ALTHOUGH WERE SUCH
A PLAINTIFF DENIED RELIEF, IT WOULD SHIP ITS GOODS ELSEWHERE, THEREBY
CREATING AN ALTERATION IN THE FLOW OF TRADE.  THE SENSITIVITY IN REGARD
TO FOREIGN RELATIONS AND THE POSSIBILITY OF EMBARRASSMENT OF THE
EXECUTIVE ARE, OF COURSE, HEIGHTENED BY THE PRESENCE OF A SOVEREIGN
PLAINTIFF.  THE REBUKE TO A RECOGNIZED POWER WOULD BE MORE POINTED WERE
IT A SUITOR IN OUR COURTS.  IN DISCUSSING THE RULE AGAINST ENFORCEMENT
OF FOREIGN PENAL AND REVENUE LAWS, THE EIRE HIGH COURT OF JUSTICE, IN
PETER BUCHANAN LTD. V. MCVEY, (1955) A.C. 516, 529-530, AFF'D, ID., AT
530, EMPHASIZED THAT ITS JUSTIFICATION WAS IN LARGE DEGREE THE DESIRE
TO AVOID EMBARRASSING ANOTHER STATE BY SCRUTINIZING ITS PENAL AND
REVENUE LAWS.  ALTHOUGH THAT RULE PRESUMES INVALIDITY IN THE FORUM
WHEREAS THE ACT OF STATE PRINCIPLE PRESUMES THE CONTRARY, THE DOCTRINES
HAVE A COMMON RATIONALE, A RATIONALE THAT NEGATES THE WISDOM OF
DISCARDING THE ACT OF STATE RULE WHEN THE PLAINTIFF IS A STATE WHICH IS
NOT SEEKING ENFORCEMENT OF A PUBLIC ACT. 

CERTAINLY THE DISTINCTION PROPOSED WOULD SANCTION SELFHELP REMEDIES,
SOMETHING HARDLY CONDUCIVE TO A PEACEFUL INTERNATIONAL ORDER.  HAD
FARR, WHITLOCK NOT CONVERTED THE BILLS OF LADING, OR ALTERNATIVELY
BREACHED ITS CONTRACT, CUBA COULD HAVE RELIED ON THE ACT OF STATE
DOCTRINE IN DEFENSE OF A CLAIM BROUGHT BY C.A.V. FOR THE PROCEEDS.  IT
WOULD BE ANOMALOUS TO PRECLUDE RELIANCE ON THE ACT OF STATE DOCTRINE
BECAUSE OF FARR, WHITLOCK'S UNILATERAL ACTION, HOWEVER JUSTIFIED SUCH
ACTION MAY HAVE BEEN UNDER THE CIRCUMSTANCES. 

RESPONDENTS OFFER ANOTHER THEORY FOR TREATING THE CASE DIFFERENTLY
BECAUSE OF CUBA'S PARTICIPATION.  IT IS CLAIMED THAT THE FORUM SHOULD
SIMPLY APPLY ITS OWN LAW TO ALL THE RELEVANT TRANSACTIONS.  AN ANALOGY
IS DRAWN TO THE AREA OF SOVEREIGN IMMUNITY.  NATIONAL CITY BANK V.
REPUBLIC OF CHINA, 348 U.S. 356, IN WHICH, IF A FOREIGN COUNTRY SEEKS
REDRESS IN OUR COURTS, COUNTERCLAIMS ARE PERMISSIBLE.  BUT IMMUNITY
RELATES TO THE PREROGATIVE RIGHT NOT TO HAVE SOVEREIGN PROPERTY SUBJECT
TO SUIT; FAIRNESS HAD BEEN THOUGHT TO REQUIRE THAT WHEN THE SOVEREIGN
SEEKS RECOVERY, IT BE SUBJECT TO LEGITIMATE COUNTERCLAIMS AGAINST IT.
THE ACT OF STATE DOCTRINE, HOWEVER, ALTHOUGH IT SHARES WITH THE
IMMUNITY DOCTRINE A RESPECT FOR SOVEREIGN STATES, CONCERNS THE LIMITS
FOR DETERMINING THE VALIDITY OF AN OTHERWISE APPLICABLE RULE OF LAW. 
IT IS PLAIN THAT IF A RECOGNIZED GOVERNMENT SUED ON A CONTRACT WITH A
UNITED STATES CITIZEN, CONCEDEDLY LEGITIMATE BY THE LOCUS OF ITS
MAKING, PERFORMANCE, AND MOST SIGNIFICANT CONTACTS, THE FORUM WOULD NOT
APPLY ITS OWN SUBSTANTIVE LAW OF CONTRACTS.  SINCE THE ACT OF STATE
DOCTRINE REFLECTS THE DESIRABILITY OF PRESUMING THE RELEVANT
TRANSACTION VALID, THE SAME RESULT FOLLOWS; THE FORUM MAY NOT APPLY ITS
LOCAL LAW REGARDING FOREIGN EXPROPRIATIONS. 

SINCE THE ACT OF STATE DOCTRINE PROSCRIBES A CHALLENGE TO THE
VALIDITY OF THE CUBAN EXPROPRIATION DECREE IN THIS CASE, ANY
COUNTERCLAIM BASED ON ASSERTED INVALIDITY MUST FAIL.  WHETHER A THEORY
OF CONVERSION OR BREACH OF CONTRACT IS THE PROPER CAUSE OF ACTION UNDER
NEW YORK LAW, THE PRESUMED VALIDITY OF THE EXPROPRIATION IS
UNAFFECTED.  ALTHOUGH WE DISCERN NO REMAINING LITIGABLE ISSUES OF FACT
IN THIS CASE, THE DISTRICT COURT MAY HEAR AND DECIDE THEM IF THEY
DEVELOP.    THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS CONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  74 STAT. 330. 

FN2  PROCLAMATION NO. 3355, 74 STAT. C72, EFFECTIVE UPON PUBLICATION
IN THE FEDERAL REGISTER, JULY 8, 1960, 25 FED. REG. 6414. 

FN3  "WHEREAS, THE ATTITUDE ASSUMED BY THE GOVERNMENT AND THE
LEGISLATIVE POWER OF THE UNITED STATES OF NORTH AMERICA, WHICH
CONSTITUTES AN AGGRESSION, FOR POLITICAL PURPOSES, AGAINST THE BASIC
INTERESTS OF THE CUBAN ECONOMY, AS RECENTLY EVIDENCED BY THE AMENDMENT
TO THE SUGAR ACT JUST ENACTED BY THE UNITED STATES CONGRESS AT THE
REQUEST OF THE CHIEF EXECUTIVE OF THAT COUNTRY, WHEREBY EXCEPTIONAL
POWERS ARE CONFERRED UPON THE PRESIDENT OF THE UNITED STATES TO REDUCE
THE PARTICIPATION OF CUBAN SUGARS IN THE AMERICAN SUGAR MARKET AS A
THREAT OF POLITICAL ACTION AGAINST CUBA, FORCES THE REVOLUTIONARY
GOVERNMENT TO ADOPT, WITHOUT HESITATION, ALL AND WHATEVER MEASURES IT
MAY DEEM APPROPRIATE OR DESIRABLE FOR THE DUE DEFENSE OF THE NATIONAL
SOVEREIGNTY AND PROTECTION OF OUR ECONOMIC DEVELOPMENT PROCESS. 

    *         *         *         *         * 

WHEREAS, IT IS ADVISABLE, WITH A VIEW TO THE ENDS REFERRED TO IN THE
FIRST WHEREAS OF THIS LAW, TO CONFER UPON THE PRESIDENT AND PRIME
MINISTER OF THE REPUBLIC FULL AUTHORITY TO CARRY OUT THE
NATIONALIZATION OF THE ENTERPRISES AND PROPERTY OWNED BY PHYSICAL AND
CORPORATE PERSONS WHO ARE NATIONALS OF THE UNITED STATES OF NORTH
AMERICA, OR OF ENTERPRISES WHICH HAVE MAJORITY INTEREST OR
PARTICIPATIONS IN SUCH ENTERPRISES, EVEN THOUGH THEY BE ORGANIZED UNDER
THE CUBAN LAWS, SO THAT THE REQUIRED MEASURES MAY BE ADOPTED IN FUTURE
CASES WITH A VIEW TO THE ENDS PURSUED. 

"NOW, THEREFORE:  IN PURSUANCE OF THE POWERS VESTED IN IT, THE
COUNCIL OF MINISTERS HAS RESOLVED TO ENACT AND PROMULGATE THE
FOLLOWING:

                               "LAW NO. 851 

"ARTICLE 1.  FULL AUTHORITY IS HEREBY CONFERRED UPON THE PRESIDENT
AND THE PRIME MINISTER OF THE REPUBLIC IN ORDER THAT, ACTING JOINTLY
THROUGH APPROPRIATE RESOLUTIONS WHENEVER THEY DEEM IT ADVISABLE OR
DESIRABLE FOR THE PROTECTION OF THE NATIONAL INTERESTS, THEY MAY
PROCEED TO NATIONALIZE, THROUGH FORCED EXPROPRIATIONS, THE PROPERTIES
OR ENTERPRISES OWNED BY PHYSICAL AND CORPORATE PERSONS WHO ARE
NATIONALS OF THE UNITED STATES OF NORTH AMERICA, OR OF THE ENTERPRISES
IN WHICH SUCH PHYSICAL AND CORPORATE PERSONS HAVE AN INTEREST, EVEN
THOUGH THEY BE ORGANIZED UNDER THE CUBAN LAWS."  RECORD, AT 98-99. 

FN4  SEE ID., ARTICLES 4-7.  PAYMENT FOR EXPROPRIATED PROPERTY WOULD
CONSIST OF BONDS WITH TERMS OF AT LEAST 30 YEARS AND BEARING 2% ANNUAL
INTEREST.  THE INTEREST WAS NOT TO BE CUMULATIVE FROM YEAR TO YEAR AND
WAS TO BE PAID ONLY OUT OF 25% OF THE YEARLY FOREIGN EXCHANGE RECEIVED
BY SALES OF CUBAN SUGAR TO THE UNITED STATES IN EXCESS OF 3,000,000
SPANISH LONG TONS AT A MINIMUM PRICE OF 5.75 CENTS PER ENGLISH POUND. 
(IN THE PRECEDING 10 YEARS THE ANNUAL AVERAGE PRICE HAD NEVER BEEN THAT
HIGH AND IN ONLY ONE OF THOSE YEARS HAD AS MANY AS 3,000,000 SPANISH
LONG TONS BEEN SOLD, 307 F.2D, AT 862.)  THE BONDS WERE TO BE AMORTIZED
ONLY UPON THE AUTHORITY OF THE PRESIDENT OF THE NATIONAL BANK.  THE
PRESIDENT AND PRIME MINISTER OF THE CUBAN STATE WERE EMPOWERED TO
CHOOSE THE APPRAISERS.  IT IS NOT CLEAR WHETHER THE BONDS WERE TO BE
PAID AT MATURITY IF FUNDS WERE INSUFFICIENT AT THAT TIME. 

FN5  SEE STATE DEPT. NOTE NO. 397, JULY 16, 1960 (TO CUBAN MINISTRY
OF FOREIGN RELATIONS). 

FN6  THE PARTIES HAVE TREATED THE INTEREST OF THE WHOLLY OWNED
SUBSIDIARY AS IF IT WERE IDENTICAL WITH THAT OF C.A.V.; HENCE NO
DISTINCTION BETWEEN THE TWO COMPANIES WILL BE DRAWN IN THE REMAINDER OF
THIS OPINION. 

FN7  "WHEREAS, THE ATTITUDE ASSUMED BY THE GOVERNMENT AND THE
LEGISLATIVE POWER OF THE UNITED STATES OF NORTH AMERICA, OF CONTINUED
AGGRESSION, FOR POLITICAL PURPOSES, AGAINST THE BASIC INTERESTS OF THE
CUBAN ECONOMY, AS EVIDENCED BY THE AMENDMENT TO THE SUGAR ACT ADOPTED
BY THE CONGRESS OF SAID COUNTRY, WHEREBY EXCEPTIONAL POWERS WERE
CONFERRED UPON THE PRESIDENT OF SAID NATION TO REDUCE THE PARTICIPATION
OF CUBAN SUGARS IN THE SUGAR MARKET OF SAID COUNTRY, AS A WEAPON OF
POLITICAL ACTION AGAINST CUBA, WAS CONSIDERED AS THE FUNDAMENTAL
JUSTIFICATION OF SAID LAW. 

"WHEREAS, THE CHIEF EXECUTIVE OF THE GOVERNMENT OF THE UNITED STATES
OF NORTH AMERICA, MAKING USE OF SAID EXCEPTIONAL POWERS, AND ASSUMING
AN OBVIOUS ATTITUDE OF ECONOMIC AND POLITICAL AGGRESSION AGAINST OUR
COUNTRY, HAS REDUCED THE PARTICIPATION OF CUBAN SUGARS IN THE NORTH
AMERICAN MARKET WITH THE UNQUESTIONABLE DESIGN TO ATTACK CUBA AND ITS
REVOLUTIONARY PROCESS. 

"WHEREAS, THIS ACTION CONSTITUTES A REITERATION OF THE CONTINUED
CONDUCT OF THE GOVERNMENT OF THE UNITED STATES OF NORTH AMERICA,
INTENDED TO PREVENT THE EXERCISE OF ITS SOVEREIGNTY AND ITS INTEGRAL
DEVELOPMENT BY OUR PEOPLE THEREBY SERVING THE BASE INTERESTS OF THE
NORTH AMERICAN TRUSTS, WHICH HAVE HINDERED THE GROWTH OF OUR ECONOMY
AND THE CONSOLIDATION OF OUR POLITICAL FREEDOM. 

"WHEREAS, IN THE FACE OF SUCH DEVELOPMENTS THE UNDERSIGNED, BEING
FULLY CONSCIOUS OF THEIR GREAT HISTORICAL RESPONSIBILITY AND IN
LEGITIMATE DEFENSE OF THE NATIONAL ECONOMY ARE DUTY BOUND TO ADOPT THE
MEASURES DEEMED NECESSARY TO COUNTERACT THE HARM DONE BY THE AGGRESSION
INFLICTED UPON OUR NATION. 

*         *         *         *         * 

"WHEREAS, IT IS THE DUTY OF THE PEOPLES OF LATIN AMERICA TO STRIVE
FOR THE RECOVERY OF THEIR NATIVE WEALTH BY WRESTLING IT FROM THE HANDS
OF THE FOREIGN MONOPOLIES AND INTERESTS WHICH PREVENT THEIR
DEVELOPMENT, PROMOTE POLITICAL INTERFERENCE, AND IMPAIR THE SOVEREIGNTY
OF THE UNDERDEVELOPED COUNTRIES OF AMERICA. 

"WHEREAS, THE CUBAN REVOLUTION WILL NOT STOP UNTIL IT SHALL HAVE
TOTALLY AND DEFINITELY LIBERATED ITS FATHERLAND. 

"WHEREAS, CUBA MUST BE A LUMINOUS AND STIMULATING EXAMPLE FOR THE
SISTER NATIONS OF AMERICA AND ALL THE UNDERDEVELOPED COUNTRIES OF THE
WORLD TO FOLLOW IN THEIR STRUGGLE TO FREE THEMSELVES FROM THE BRUTAL
CLAWS OF IMPERIALISM. 

"NOW, THEREFORE:  IN PURSUANCE OF THE POWERS VESTED IN US, IN
ACCORDANCE WITH THE PROVISIONS OF LAW NO. 851, OF JULY 6, 1960, WE
HEREBY:

   "RESOLVE: 

"FIRST.  TO ORDER THE NATIONALIZATION, THROUGH COMPULSORY
EXPROPRIATION, AND, THEREFORE, THE ADJUDICATION IN FEE SIMPLE TO THE
CUBAN STATE, OF ALL THE PROPERTY AND ENTERPRISES LOCATED IN THE
NATIONAL TERRITORY, AND THE RIGHTS AND INTERESTS RESULTING FROM THE
EXPLOITATION OF SUCH PROPERTY AND ENTERPRISES, OWNED BY THE JURIDICAL
PERSONS WHO ARE NATIONALS OF THE UNITED STATES OF NORTH AMERICA, OR
OPERATORS OF ENTERPRISES IN WHICH NATIONALS OF SAID COUNTRY HAVE A
PREDOMINATING INTEREST, AS LISTED BELOW, TO WIT: 

     *         *         *        *         * 

"22.  COMPANA AZUCARERA VERTIENTES CAMAGUEY DE CUBA. 

     *         *         *         *  * 

"SECOND.  CONSEQUENTLY, THE CUBAN STATE IS HEREBY SUBROGATED IN THE
PLACE AND STEAD OF THE JURIDICAL PERSONS LISTED IN THE PRECEDING
AND OF THE ASSETS AND LIABILITIES CONSTITUTING THE CAPITAL OF SAID
ENTERPRISES."  RECORD, AT 102-105. 

FN8  C.A.V. ALSO AGREED TO PAY FARR, WHITLOCK 10% OF THE $175,000 IF
C.A.V. EVER OBTAINED THAT SUM.  307 F.2D, AT 851. 

FN9  BECAUSE OF C.A.V.'S AMICUS POSITION IN THIS COURT, AND BECAUSE
ITS ARGUMENTS HAVE BEEN PRESENTED SEPARATELY FROM THOSE OF FARR,
WHITLOCK, EVEN THOUGH EACH HAS ADOPTED THE OTHER'S CONTENTIONS, THIS
OPINION REFERS TO "RESPONDENTS" ALTHOUGH FARR, WHITLOCK IS THE ONLY
FORMAL PARTY-RESPONDENT. 

FN10  IN P&E SHIPPING CORP. V. BANCO PARA EL COMERCIO EXTERIOR DE
CUBA, 307 F.2D 415 (C.A. 1ST CIR.), THE COURT SUA SPONTE QUESTIONED THE
RIGHT OF CUBA TO SUE.  IT CONCLUDED THAT THE MATTER WAS ONE FOR THE
EXECUTIVE BRANCH TO DECIDE AND REMANDED THE CASE TO THE DISTRICT COURT
TO ELICIT THE VIEWS OF THE STATE DEPARTMENT.  THE TRIAL COURT IN DADE
DRYDOCK CORP. V. THE M/T MAR CARIBE, 199 F. SUPP. 871 (S.D. TEX.),
APPARENTLY EQUATED THE SEVERANCE OF DIPLOMATIC RELATIONS WITH THE
WITHDRAWAL OF RECOGNITION AND SUSPENDED THE ACTION "UNTIL THE
GOVERNMENT OF THE REPUBLIC OF CUBA IS AGAIN RECOGNIZED BY THE UNITED
STATES OF AMERICA," ID., AT 874.  IN TWO OTHER CASES, HOWEVER, PONS V.
REPUBLIC OF CUBA, 111 U.S. APP. D.C. 141, 294 F.2D 925; REPUBLIC OF
CUBA V. MAYAN LINES, S.A., 145 SO. 2D 679 (CT. APP., 4TH CIR., LA.),
COURTS HAVE UPHELD THE RIGHT OF CUBA TO SUE DESPITE THE SEVERANCE OF
DIPLOMATIC RELATIONS. 

FN11  THE DISTRICT COURT IN THE GUL DJEMAL, 296 F. 563, 296 F. 567,
DID REFUSE TO PERMIT THE INVOCATION OF SOVEREIGN IMMUNITY BY THE
TURKISH GOVERNMENT, WITH WHOM THE UNITED STATES HAD BROKEN DIPLOMATIC
RELATIONS, ON THE THEORY THAT UNDER SUCH CIRCUMSTANCES COMITY DID NOT
REQUIRE THE GRANTING OF IMMUNITY.  THE CASE WAS AFFIRMED, 264 U.S. 90,
BUT ON ANOTHER GROUND. 

FN12  THE DOCTRINE THAT NONRECOGNITION PRECLUDES SUIT BY THE FOREIGN
GOVERNMENT IN EVERY CIRCUMSTANCE HAS BEEN THE SUBJECT OF DISCUSSION AND
CRITICISM.  SEE, E.G., HERVEY, THE LEGAL EFFECTS OF RECOGNITION IN
INTERNATIONAL LAW (1928) 122-119; JAFFE, JUDICIAL ASPECTS OF FOREIGN
RELATIONS (1933) 148-156; BORCHARD, THE UNRECOGNIZED GOVERNMENT IN
AMERICAN COURTS, 26 AM. J. INT'L L. 261 (1932); DICKINSON, THE
UNRECOGNIZED GOVERNMENT OR STATE IN ENGLISH AND AMERICAN LAW, 22 MICH.
L. REV. 118 (1923); FRAENKEL, THE JURISTIC STATUS OF FOREIGN STATES,
THEIR PROPERTY AND THEIR ACTS, 25 COL. L. REV. 544, 547-552 (1925);
LUBMAN, THE UNRECOGNIZED GOVERNMENT IN AMERICAN COURTS:  UPRIGHT V.
MERCURY BUSINESS MACHINES, 62 COL. L. REV. 275 (1962).  IN THIS
LITIGATION WE NEED INTIMATE NO VIEW ON THE POSSIBILITY OF ACCESS BY AN
UNRECOGNIZED GOVERNMENT TO UNITED STATES COURTS, EXCEPT TO POINT OUT
THAT EVEN THE MOST INHOSPITABLE ATTITUDE ON THE MATTER DOES NOT DICTATE
DENIAL OF STANDING HERE. 

FN13  RESPONDENTS SUGGEST THAT SUIT MAY BE BROUGHT, IF AT ALL, ONLY
BY AN AUTHORIZED AGENT OF THE CUBAN GOVERNMENT.  DECISIONS ESTABLISHING
THAT PRIVILEGE BASED ON SOVEREIGN PREROGATIVES MAY BE EVOKED ONLY BY
SUCH AGENTS, E.G., THE ANNE, 3 WHEAT.  435; EX PARTE MUIR, 254 U.S.
522, 532-533; THE SAO VICENTE, 260 U.S. 151; THE "GUL DJEMAL," 264 U.S.
90, ARE NOT APPOSITE TO CASES IN WHICH A STATE MERELY SUES IN OUR
COURTS WITHOUT CLAIMING ANY RIGHT UNIQUELY APPERTAINING TO SOVEREIGNS. 

FN14  IF CUBA HAD JURISDICTION TO EXPROPRIATE THE CONTRACTUAL RIGHT,
IT WOULD HAVE BEEN UNNECESSARY FOR IT TO COMPEL THE SIGNING OF A NEW
CONTRACT.  IF CUBA DID NOT HAVE JURISDICTION, ANY ACTION WHICH IT TOOK
IN REGARD TO FARR, WHITLOCK OR THE SUGAR WOULD HAVE BEEN INEFFECTIVE TO
TRANSFER C.A.V.'S CLAIM. 

FN15  AS APPEARS FROM THE CASES CITED, A PENAL LAW FOR THE PURPOSES
OF THIS DOCTRINE IS ONE WHICH SEEKS TO REDRESS A PUBLIC RATHER THAN A
PRIVATE WRONG. 

FN16  THE DOCTRINE MAY HAVE A BROADER REACH IN GREAT BRITAIN, SEE DON
ALONSO V. CORNERO, HOB.  212A, HOBART'S KING'S BENCH REPS.  372; BANCO
DE VIZCAYA V. DON ALFONSO DE BORBON Y AUSTRIA, (1935) 1 K.B. 140;
ATTORNEY-GENERAL FOR CANADA V. WILLIAM SCHULZE & CO., (1901) 9 SCOTS
L.T. REPS.  4 (OUTER HOUSE); DICEYS' CONFLICT OF LAWS, 162 (MORRIS ED.
1958); MANN, PREROGATIVE RIGHTS OF FOREIGN STATES AND THE CONFLICT OF
LAWS, 40 GROTIUS SOCIETY 25 (1955); BUT SEE LEPAGE V. SAN PAULO COFFEE
ESTATES CO., (1917) W.N. 216 (HIGH CT. OF JUSTICE, CH. DIV.); LORENTZEN
V. LYDDEN & CO., (1942) 2 K.B. 202; F.&K. JABBOUR V. CUSTODIAN OF
ISRAELI ABSENTEE PROPERTY, (1954) 1 WEEKLY L.R. 139 (Q.B.), THAN IN THE
UNITED STATES, CF. UNITED STATES V. BELMONT, 85 F.2D 542, REV'D, 301
U.S. 324 (POSSIBILITY OF BROAD RULE AGAINST ENFORCEABILITY OF PUBLIC
ACTS NOT DISCUSSED IN EITHER COURT), UNITED STATES V. PINK, 284 N.Y.
555, 32 N.E.2D 552, REV'D, 315 U.S. 203 (SAME); ANDERSON V. N. V.
TRANSANDINE HANDELMAATSCHAPPIJ, 289 N.Y. 9, 43 N.E.2D 502; BUT SEE
LEFLAR, EXTRASTATE ENFORCEMENT OF PENAL AND GOVERNMENTAL CLAIMS, 46
HARV. L. REV. 193, 194 (1932). 

FN17  THE COURTS BELOW PROPERLY DECLINED TO DETERMINE IF ISSUANCE OF
THE EXPROPRIATION DECREE COMPLIED WITH THE FORMAL REQUISITES OF CUBAN
LAW.  IN DICTUM IN HUDSON V. GUESTIER, 4 CRANCH 293, 294, CHIEF JUSTICE
MARSHALL DECLARED THAT ONE NATION MUST RECOGNIZE THE ACT OF THE
SOVEREIGN POWER OF ANOTHER, SO LONG AS IT HAS JURISDICTION UNDER
INTERNATIONAL LAW, EVEN IF IT IS IMPROPER ACCORDING TO THE INTERNAL LAW
OF THE LATTER STATE.  THIS PRINCIPLE HAS BEEN FOLLOWED IN A NUMBER OF
CASES.  SEE, E.G., BANCO DE ESPANA V. FEDERAL RESERVE BANK, 114 F.2D
438, 443, 444 (C.A.2D CIR.); BERNSTEIN V. VAN HEYGHEN FRERES SOCIETY
ANONYME, 163 F.2D 246, 249 (C.A.2D CIR.); EASTERN STATES PETROLEUM CO.
V. ASIATIC PETROLEUM CORP., 28 F. SUPP. 279 (D.C.S.D.N.Y.).  BUT SEE
CANADA SOUTHERN R. CO. V. GEBHARD, 109 U.S. 527; CF. FREMONT V. UNITED
STATES, 17 HOW.  542 (UNITED STATES SUCCESSOR SOVEREIGN OVER LAND);
SABARIEGO V. MAVERICK, 124 U.S. 261 (SAME); SHAPLEIGH V. MIER, 299 U.S.
468 (SAME).  AN INQUIRY BY UNITED STATES COURTS INTO THE VALIDITY OF AN
ACT OF AN OFFICIAL OF A FOREIGN STATE UNDER THE LAW OF THAT STATE WOULD
NOT ONLY BE EXCEEDINGLY DIFFICULT BUT, IF WRONGLY MADE, WOULD BE LIKELY
TO BE HIGHLY OFFENSIVE TO THE STATE IN QUESTION.  OF COURSE, SUCH
REVIEW CAN TAKE PLACE BETWEEN STATES IN OUR FEDERAL SYSTEM, BUT IN THAT
INSTANCE THERE IS SIMILARITY OF LEGAL STRUCTURE AND AN IMPARTIAL
ARBITER, THIS COURT, APPLYING THE FULL FAITH AND CREDIT PROVISION OF
THE FEDERAL CONSTITUTION.    ANOTHER GROUND SUPPORTS THE RESOLUTION OF
THIS PROBLEM IN THE COURTS BELOW.  WERE ANY TEST TO BE APPLIED IT WOULD
HAVE TO BE WHAT EFFECT THE DECREE WOULD HAVE IF CHALLENGED IN CUBA.  IF
NO INSTITUTION OF LEGAL AUTHORITY WOULD REFUSE TO EFFECTUATE THE
DECREE, ITS "FORMAL" STATUS - HERE ITS ARGUED INVALIDITY IF NOT
PROPERLY PUBLISHED IN THE OFFICIAL GAZETTE IN CUBA - IS IRRELEVANT.  IT
HAS NOT BEEN SERIOUSLY CONTENDED THAT THE JUDICIAL INSTITUTIONS OF CUBA
WOULD DECLARE THE DECREE INVALID. 

FN18  THE LETTER STATED:    "1.  THIS GOVERNMENT HAS CONSISTENTLY
OPPOSED THE FORCIBLE ACTS OF DISPOSSESSION OF A DISCRIMINATORY AND
CONFISCATORY NATURE PRACTICED BY THE GERMANS ON THE COUNTRIES OR
PEOPLES SUBJECT TO THEIR CONTROLS. 

     *         *        *         *         * 

"3.  THE POLICY OF THE EXECUTIVE, WITH RESPECT TO CLAIMS ASSERTED IN
THE UNITED STATES FOR THE RESTITUTION OF IDENTIFIABLE PROPERTY (OR
COMPENSATION IN LIEU THEREOF) LOST THROUGH FORCE, COERCION, OR DURESS
AS A RESULT OF NAZI PERSECUTION IN GERMANY, IS TO RELIEVE AMERICAN
COURTS FROM ANY RESTRAINT UPON THE EXERCISE OF THEIR JURISDICTION TO
PASS UPON THE VALIDITY OF THE ACTS OF NAZI OFFICIALS."  STATE
DEPARTMENT PRESS RELEASE, APRIL 27, 1949, 20 DEPT. STATE BULL.  592. 

FN19  ABRAM CHAYES, THE LEGAL ADVISER TO THE STATE DEPARTMENT, WROTE
ON OCTOBER 18, 1961, IN ANSWER TO AN INQUIRY REGARDING THE POSITION OF
THE DEPARTMENT BY MR. JOHN LAYLIN, ATTORNEY FOR AMICI: 

"THE DEPARTMENT OF STATE HAS NOT, IN THE BAHIA DE NIPE CASE OR
ELSEWHERE, DONE ANYTHING INCONSISTENT WITH THE POSITION TAKEN ON THE
CUBAN NATIONALIZATIONS BY SECRETARY HERTER.  WHETHER OR NOT THESE
NATIONALIZATIONS WILL IN THE FUTURE BE GIVEN EFFECT IN THE UNITED
STATES IS, OF COURSE, FOR THE COURTS TO DETERMINE.  SINCE THE SABBATINO
CASE AND OTHER SIMILAR CASES ARE AT PRESENT BEFORE THE COURTS, ANY
COMMENTS ON THIS QUESTION BY THE DEPARTMENT OF STATE WOULD BE OUT OF
PLACE AT THIS TIME.  AS YOU YOURSELF POINT OUT, STATEMENTS BY THE
EXECUTIVE BRANCH ARE HIGHLY SUSCEPTIBLE OF MISCONSTRUCTION." 

A LETTER DATED NOVEMBER 14, 1961, FROM GEORGE BALL, UNDER SECRETARY
FOR ECONOMIC AFFAIRS, RESPONDED TO A SIMILAR INQUIRY BY THE SAME
ATTORNEY: 

"I HAVE CAREFULLY CONSIDERED YOUR LETTER AND HAVE DISCUSSED IT WITH
THE LEGAL ADVISER.  OUR CONCLUSION, IN WHICH THE SECRETARY CONCURS, IS
THAT THE DEPARTMENT SHOULD NOT COMMENT ON MATTERS PENDING BEFORE THE
COURTS." 

FN20  ALTHOUGH THE COMPLAINT IN THIS CASE ALLEGED BOTH DIVERSITY AND
FEDERAL QUESTION JURISDICTION, THE COURT OF APPEALS REACHED
JURISDICTION ONLY ON THE FORMER GROUND, 307 F.2D, AT 852.   WE NEED NOT
DECIDE, FOR REASONS APPEARING HEREAFTER, WHETHER FEDERAL QUESTION
JURISDICTION ALSO EXISTED. 

FN21  IN ENGLISH JURISPRUDENCE, IN THE CLASSIC CASE OF LUTHER V.
JAMES SAGOR & CO., (1921) 3 K.B. 532, THE ACT OF STATE DOCTRINE IS
ARTICULATED IN TERMS NOT UNLIKE THOSE OF THE UNITED STATES CASES.  SEE
PRINCESS PALEY OLGA V. WEISZ, (1929) 1 K.B. 718.  BUT SEE ANGLO-IRANIAN
OIL CO. V. JAFFRATE, (1953) 1 WEEKLY L.R. 246, (1953) INT'L L. REP.
316 (ADEN SUP. CT.)(EXCEPTION TO DOCTRINE IF FOREIGN ACT VIOLATES
INTERNATIONAL LAW).  CIVIL LAW COUNTRIES, HOWEVER, WHICH APPLY THE RULE
MAKE EXCEPTIONS FOR ACTS CONTRARY TO THEIR SENSE OF PUBLIC ORDER.  SEE,
E.G., ROPIT CASE, COUR DE CASSATION (FRANCE), (1929) RECUEIL GENERAL
DES LOIS ET DES ARRETS (SIREY) PART I, 217; 55 JOURNAL DU DROIT
INTERNATIONAL (CLUNET) 674 (1928), (1927-1928) ANN. DIG., NO. 43;
GRAUE, GERMANY:  RECOGNITION OF FOREIGN EXPROPRIATIONS, 3 AM. J. COMP.
L. 93 (1954); DOMKE, INDONESIAN NATIONALIZATION MEASURES BEFORE FOREIGN
COURTS, 54 AM. J. INT'L. L. 305 (1960)(DISCUSSION OF AND EXCERPTS FROM
OPINIONS OF THE DISTRICT COURT IN BREMEN AND THE HANSEATIC COURT OF
APPEALS IN N.V.  VERENIGDE DELI-MAATSCHAPIJEN V. DEUTSCH-INDONESISCHE
TABAK-HANDELSGESELLSCHAFT M.B.H., AND OF THE AMSTERDAM DISTRICT COURT
AND APPELLATE COURT IN SENEMBAH MAATSCHAPPIJ N.V.  V. REPUBLIEK
INDONESIE BANK INDONESIA); MASSOURIDIS, THE EFFECTS OF CONFISCATION,
EXPROPRIATION, AND THE REQUISITION BY A FOREIGN AUTHORITY, 3 REVUE
HELLENIQUE DE DROIT INTERNATIONAL 62, 68 (1950)(RECOUNTING A DECISION
OF THE COURT OF THE FIRST INSTANCE OF PIRAEUS); ANGLO-IRANIAN OIL CO.
V. S.U.P.O.R. CO., (1955) INT'L L. REP. 19 (CT. OF VENICE), 78 IL FORO
ITALIANO PART I, 719; 40 BLATTER FUR ZURCHERISCHE RECHTSPRECHUNG NO.
65, 172-173 (SWITZERLAND).  SEE ALSO ANGLO-IRANIAN OIL CO. V. IDEMITSU
KOSAN KABUSHIKI KAISHA, (1953) INT'L L. REP.  312 (HIGH CT. OF TOKYO). 

FN22  SEE, E.G., ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK,
COMMITTEE ON INTERNATIONAL LAW, A RECONSIDERATION OF THE ACT OF STATE
DOCTRINE IN UNITED STATES COURTS (1959); DOMKE, SUPRA, NOTE 21; MANN,
INTERNATIONAL DELINQUENCIES BEFORE MUNICIPAL COURTS, 70 L.Q. REV.  181
(1954); ZANDER, THE ACT OF STATE DOCTRINE, 53 AM. J. INT'L L. 826
(1959).  BUT SEE, E.G., FALK, TOWARD A THEORY OF THE PARTICIPATION OF
DOMESTIC COURTS IN THE INTERNATIONAL LEGAL ORDER:  A CRITIQUE OF BANCO
NACIONAL DE CUBA V. SABBATINO, 16 RUTGERS L. REV. 1 (1961); REEVES, ACT
OF STATE DOCTRINE AND THE RULE OF LAW - A REPLY, 54 AM. J. INT'L L. 141
(1960). 

FN23  AT LEAST THIS IS TRUE WHEN THE COURT LIMITS THE SCOPE OF
JUDICIAL INQUIRY.  WE NEED NOT NOW CONSIDER WHETHER A STATE COURT
MIGHT, IN CERTAIN CIRCUMSTANCES, ADHERE TO A MORE RESTRICTIVE VIEW
CONCERNING THE SCOPE OF EXAMINATION OF FOREIGN ACTS THAN THAT REQUIRED
BY THIS COURT. 

FN24  THE DOCTRINE OF ERIE RAILROAD V. TOMPKINS APPLIED TO
INTERNATIONAL LAW, 33 AM.  J. INT'L L. 740 (1939). 

FN25  VARIOUS CONSTITUTIONAL AND STATUTORY PROVISIONS INDIRECTLY
SUPPORT THIS DETERMINATION SEE U.S. CONST., ART. I, SEC. 8, CLS. 3, 10;
ART. II, SECS. 2, 3; ART. III, SEC. 2; 28 U.S.C. SECS. 1251(A)(2),
(B)(1), (B)(3), 1332(A)(2), 1333, 1350-1351, BY REFLECTING A CONCERN
FOR UNIFORMITY IN THIS COUNTRY'S DEALINGS WITH FOREIGN NATIONS AND
INDICATING A DESIRE TO GIVE MATTERS OF INTERNATIONAL SIGNIFICANCE TO
THE JURISDICTION OF FEDERAL INSTITUTIONS.  SEE COMMENT, THE ACT OF
STATE DOCTRINE - ITS RELATION TO PRIVATE AND PUBLIC INTERNATIONAL LAW,
62 COL. L. REV., 1278, 1297, N. 123; CF. UNITED STATES V. BELMONT,
SUPRA; UNITED STATES V. PINK, SUPRA. 

FN26  COMPARE, E.G., FRIEDMAN, EXPROPRIATION IN INTERNATIONAL LAW 206
211 (1953); DAWSON AND WESTON, "PROMPT, ADEQUATE AND EFFECTIVE":  A
UNIVERSAL STANDARD OF COMPENSATION?  30 FORDHAM L. REV. 727 (1962),
WITH NOTE FROM SECRETARY OF STATE HULL TO MEXICAN AMBASSADOR, AUGUST
22, 1938, V FOREIGN RELATIONS OF THE UNITED STATES 685 (1938); DOMAN,
POSTWAR NATIONALIZATION OF FOREIGN PROPERTY IN EUROPE, 48 COL. L. REV.
1125, 1127 (1948).  WE DO NOT, OF COURSE, MEAN TO SAY THAT THERE IS NO
INTERNATIONAL STANDARD IN THIS AREA; WE CONCLUDE ONLY THAT THE MATTER
IS NOT MEET FOR ADJUDICATION BY DOMESTIC TRIBUNALS. 

FN27  SEE OSCAR CHINN CASE, P.C.I.J., SER.  A/B, NO. 63, AT 87
(1934); CHORZOW FACTORY CASE, P.C.I.J., SER.  A., NO. 17, AT 46, 47
(1928). 

FN28  SEE, E.G., NORWEGIAN SHIPOWNERS' CASE (NORWAY/UNITED
STATES)(PERM.  CT. ARB.)(1922), 1 U.N. REP. INT'L ARB.  AWARDS 307,
334, 339 (1948), HAGUE COURT REPORTS, 2D SERIES, 39, 69, 74 (1932);
MARGUERITE DE JOLY DE SABLA, AMERICAN AND PANAMANIAN GENERAL CLAIMS
ARBITRATION 379, 447, 6 U.N. REP. INT'L ARB.  AWARDS 358, 366 (1955). 

FN29  SEE, E.G., DISPATCH FROM LORD PALMERSTON TO BRITISH ENVOY AT
ATHENS, AUG. 7, 1846, 39 BRITISH AND FOREIGN STATE PAPERS 1849-1850,
431-432.  NOTE FROM SECRETARY OF STATE HULL TO MEXICAN AMBASSADOR, JULY
21, 1938, V FOREIGN RELATIONS OF THE UNITED STATES 674 (1938); NOTE TO
THE CUBAN GOVERNMENT, JULY 16, 1960, 43 DEPT. STATE BULL.  171 (1960). 

FN30  SEE, E.G., MCNAIR, THE SEIZURE OF PROPERTY AND ENTERPRISES IN
INDONESIA, 6 NETHERLANDS INT'L L. REV. 218, 243-253 (1959);
RESTATEMENT, FOREIGN RELATIONS LAW OF THE UNITED STATES (PROPOSED
OFFICIAL DRAFT 1962), SECS. 190-195. 

FN31  SEE DOMAN, SUPRA, NOTE 26, AT 1143-1158; FLEMING, STATES,
CONTRACTS AND PROGRESS, 62-63 (1960); BYSTRICKY, NOTES ON CERTAIN
INTERNATIONAL LEGAL PROBLEMS RELATING TO SOCIALIST NATIONALISATION, IN
INTERNATIONAL ASSN. OF DEMOCRATIC LAWYERS, PROCEEDINGS OF THE
COMMISSION ON PRIVATE INTERNATIONAL LAW, SIXTH CONGRESS (1956), 15. 

FN32  SEE ANAND, ROLE OF THE "NEW" ASIAN-AFRICAN COUNTRIES IN THE
PRESENT INTERNATIONAL LEGAL ORDER, 56 AM. J. INT'L L. 383 (1962); ROY,
IS THE LAW OF RESPONSIBILITY OF STATE FOR INJURIES TO ALIENS A PART OF
UNIVERSAL INTERNATIONAL LAW?  55 AM. J. INT'L L. 863 (1961). 

FN33  SEE 1957 YB. U.N. INT'L L. COMM'N (VOL. 1) 155, 158 (STATEMENTS
OF MR. PADILLA NERVO (MEXICO) AND MR. PAL (INDIA)). 

FN34  THERE ARE, OF COURSE, AREAS OF INTERNATIONAL LAW IN WHICH
CONSENSUS AS TO STANDARDS IS GREATER AND WHICH DO NOT REPRESENT A
BATTLEGROUND FOR CONFLICTING IDEOLOGIES.  THIS DECISION IN NO WAY
INTIMATES THAT THE COURTS OF THIS COUNTRY ARE BROADLY FORECLOSED FROM
CONSIDERING QUESTIONS OF INTERNATIONAL LAW. 

FN35  SEE RESTATEMENT, FOREIGN RELATIONS LAW OF THE UNITED STATES,
REPORTERS' NOTES (PROPOSED OFFICIAL DRAFT 1962), SEC. 43, NOTE 3. 

FN36  IT IS, OF COURSE, TRUE THAT SUCH DETERMINATIONS MIGHT INFLUENCE
OTHERS NOT TO BRING EXPROPRIATED PROPERTY INTO THE COUNTRY, SEE PP. 433
434, INFRA, SO THEIR INDIRECT IMPACT MIGHT EXTEND BEYOND THE ACTUAL
INVALIDATIONS OF TITLE. 

FN37  OF COURSE, TO ASSIST RESPONDENTS IN THIS SUIT SUCH A
DETERMINATION WOULD HAVE TO INCLUDE A DECISION THAT FOR THE PURPOSE OF
JUDGING THIS EXPROPRIATION UNDER INTERNATIONAL LAW C.A.V. IS NOT TO BE
REGARDED AS CUBAN AND AN ACCEPTANCE OF THE PRINCIPLE THAT INTERNATIONAL
LAW PROVIDES OTHER REMEDIES FOR BREACHES OF INTERNATIONAL STANDARDS OF
EXPROPRIATION THAN SUITS FOR DAMAGES BEFORE INTERNATIONAL TRIBUNALS. 
SEE 307 F.2D, AT 861, 868 FOR DISCUSSION OF THESE QUESTIONS BY THE
COURT OF APPEALS. 

FN38  THIS POSSIBILITY IS CONSISTENT WITH THE VIEW THAT THE DETERRENT
EFFECT OF COURT INVALIDATIONS WOULD NOT ORDINARILY BE GREAT.  IF THE
EXPROPRIATING COUNTRY COULD FIND OTHER BUYERS FOR ITS PRODUCTS AT
ROUGHLY THE SAME PRICE, THE DETERRENT EFFECT MIGHT BE MINIMAL ALTHOUGH
PATTERNS OF TRADE WOULD BE SIGNIFICANTLY CHANGED. 

FN39  WERE RESPONDENTS' POSITION ADOPTED, THE COURTS MIGHT BE ENGAGED
IN THE DIFFICULT TASKS OF ASCERTAINING THE ORIGIN OF FUNGIBLE GOODS, OF
CONSIDERING THE EFFECT OF IMPROVEMENTS MADE IN A THIRD COUNTRY ON
EXPROPRIATED RAW MATERIALS, AND OF DETERMINING THE TITLE TO COMMODITIES
SUBSEQUENTLY GROWN ON EXPROPRIATED LAND OR PRODUCED WITH EXPROPRIATED
MACHINERY. 

BY DISCOURAGING IMPORT TO THIS COUNTRY BY TRADERS CERTAIN OR
APPREHENSIVE OF NONRECOGNITION OF OWNERSHIP, JUDICIAL FINDINGS OF
INVALIDITY OF TITLE MIGHT LIMIT COMPETITION AMONG SELLERS; IF THE
EXCLUDED GOODS CONSTITUTED A SIGNIFICANT PORTION OF THE MARKET, PRICES
FOR UNITED STATES PURCHASERS MIGHT RISE WITH A CONSEQUENT ECONOMIC
BURDEN ON UNITED STATES CONSUMERS.  BALANCING THE UNDESIRABILITY OF
SUCH A RESULT AGAINST THE LIKELIHOOD OF FURTHERING OTHER NATIONAL
CONCERNS IS PLAINLY A FUNCTION BEST LEFT IN THE HANDS OF THE POLITICAL
BRANCHES. 

MR. JUSTICE WHITE, DISSENTING. 

I AM DISMAYED THAT THE COURT HAS, WITH ONE BROAD STROKE, DECLARED THE
ASCERTAINMENT AND APPLICATION OF INTERNATIONAL LAW BEYOND THE
COMPETENCE OF THE COURTS OF THE UNITED STATES IN A LARGE AND IMPORTANT
CATEGORY OF THE CASES.  I AM ALSO DISAPPOINTED IN THE COURT'S
DECLARATION THAT THE ACTS OF A SOVEREIGN STATE WITH REGARD TO THE
PROPERTY OF ALIENS WITHIN ITS BORDERS ARE BEYOND THE REACH OF
INTERNATIONAL LAW IN THE COURTS OF THIS COUNTRY.  HOWEVER CLEARLY
ESTABLISHED THAT LAW MAY BE, A SOVEREIGN MAY VIOLATE IT WITH IMPUNITY,
EXCEPT INSOFAR AS THE POLITICAL BRANCHES OF THE GOVERNMENT MAY PROVIDE
A REMEDY.  THIS BACKWARD-LOOKING DOCTRINE, NEVER BEFORE DECLARED IN
THIS COURT, IS CARRIED A DISCONCERTING STEP FURTHER:  NOT ONLY ARE THE
COURTS POWERLESS TO QUESTION ACTS OF STATE PROSCRIBED BY INTERNATIONAL
LAW BUT THEY ARE LIKEWISE POWERLESS TO REFUSE TO ADJUDICATE THE CLAIM
FOUNDED UPON A FOREIGN LAW; THEY MUST RENDER JUDGMENT AND THEREBY
VALIDATE THE LAWLESS ACT.  SINCE THE COURT EXPRESSLY EXTENDS ITS RULING
TO ALL ACTS OF STATE EXPROPRIATING PROPERTY, HOWEVER CLEARLY
INCONSISTENT WITH THE INTERNATIONAL COMMUNITY, ALL DISCRIMINATORY
EXPROPRIATIONS OF THE PROPERTY OF ALIENS, AS FOR EXAMPLE THE TAKING OF
PROPERTIES OF PERSONS BELONGING TO CERTAIN RACES, RELIGIONS OR
NATIONALITIES, ARE ENTITLED TO AUTOMATIC VALIDATION IN THE COURTS OF
THE UNITED STATES.   NO OTHER CIVILIZED COUNTRY HAS FOUND SUCH A RIGID
RULE NECESSARY FOR THE SURVIVAL OF THE EXECUTIVE BRANCH OF ITS
GOVERNMENT SEEMS TO REQUIRE SUCH INSULATION FROM INTERNATIONAL LAW
ADJUDICATIONS IN ITS COURTS; AND NO OTHER JUDICIARY IS APPARENTLY SO
IMCOMPETENT TO ASCERTAIN AND APPLY INTERNATIONAL LAW.  (FN1) 

I DO NOT BELIEVE THAT THE ACT OF STATE DOCTRINE, AS JUDICIALLY
FASHIONED IN THIS COURT, AND THE REASONS UNDERLYING IT, REQUIRE
AMERICAN COURTS TO DECIDE CASES IN DISREGARD OF INTERNATIONAL LAW AND
OF THE RIGHTS OF LITIGANTS TO A FULL DETERMINATION ON THE MERITS. 

I. 

PRIOR DECISIONS OF THIS COURT IN WHICH THE ACT OF STATE DOCTRINE WAS
DEEMED CONTROLLING DO NOT SUPPORT THE ASSERTION THAT FOREIGN ACTS OF
STATE MUST BE ENFORCED OR RECOGNIZED OR APPLIED IN AMERICAN COURTS WHEN
THEY VIOLATE THE LAW OF NATIONS.  THESE CASES DO HOLD THAT A FOREIGN
ACT OF STATE APPLIED TO PERSONS OR PROPERTY WITHIN ITS BORDERS MAY NOT
BE DENIED EFFECT IN OUR COURTS ON THE GROUND THAT IT VIOLATES THE
PUBLIC POLICY OF THE FORUM.  ALSO THE BROAD LANGUAGE IN SOME OF THESE
CASES DOES EVINCE AN ATTITUDE OF CAUTION AND SELF-IMPOSED RESTRAINT IN
DEALING WITH THE LAWS OF A FOREIGN NATION.  BUT VIOLATIONS OF
INTERNATIONAL LAW WERE EITHER NOT PRESENTED IN THESE CASES, BECAUSE THE
PARTIES OR PREDECESSORS IN TITLE WERE NATIONALS OF THE ACTING STATE, OR
THE CLAIMED VIOLATION WAS INSUBSTANTIAL IN LIGHT OF THE FACTS PRESENTED
TO THE COURT AND THE PRINCIPLES OF INTERNATIONAL LAW APPLICABLE AT THE
TIME.  (FN2)  THESE CASES DO NOT STRONGLY IMPLY OR EVEN SUGGEST THAT
THE COURT WOULD WOODENLY APPLY THE ACT OF STATE DOCTRINE AND GRANT
ENFORCEMENT TO A FOREIGN ACT WHERE THE ACT WAS A CLEAR AND FLAGRANT
VIOLATION OF INTERNATIONAL LAW, AS THE DISTRICT COURT AND THE COURT OF
APPEALS HAVE FOUND IN RESPECT TO THE CUBAN LAW CHALLENGED HEREIN.  193
F. SUPP. 375, AFF'D, 307 F.2D 845. 
II. 

THOUGH NOT A PRINCIPLE OF INTERNATIONAL LAW, THE DOCTRINE OF
RESTRAINT, AS FORMULATED BY THIS COURT, HAS ITS ROOTS IN SOUND POLICY
REASONS, AND IT IS TO THESE WE MUST TURN TO DECIDE WHETHER THE ACT OF
STATE DOCTRINE SHOULD BE EXTENDED TO COVER WRONGS COGNIZABLE UNDER
INTERNATIONAL LAW. 

WHATEVER MAY BE SAID TO CONSTITUTE AN ACT OF STATE, (FN3) OUR
DECISIONS MAKE CLEAR THAT THE DOCTRINE OF NONREVIEW ORDINARILY APPLIES
TO FOREIGN LAWS AFFECTING TANGIBLE PROPERTY LOCATED WITHIN THE
TERRITORY OF A GOVERNMENT WHICH IS RECOGNIZED BY THE UNITED STATES. 
OETJEN V. CENTRAL LEATHER CO., 246 U.S. 297; RICAUD V. AMERICAN METAL
CO., 246 U.S. 304.  THIS JUDICIALLY FASHIONED DOCTRINE OF NONREVIEW IS
A COROLLARY OF THE PRINCIPLE THAT ORDINARILY A STATE HAS JURISDICTION
TO PRESCRIBE THE RULES GOVERNING THE TITLE TO PROPERTY WITHIN ITS
TERRITORIAL SOVEREIGNTY, SEE CLARKE V. CLARKE, 178 U.S. 186; DE VAUGHN
V. HUTCHINSON, 165 U.S. 566, A PRINCIPLE REFLECTED IN THE CONFLICT OF
LAWS RULE, ADOPTED IN VIRTUALLY ALL NATIONS, THAT THE LEX LOCI IS THE
LAW GOVERNING TITLE TO PROPERTY.  (FN4)  THIS CONFLICT RULE WOULD HAVE
BEEN ENOUGH IN ITSELF TO HAVE CONTROLLED THE OUTCOME OF MOST OF THE ACT
OF STATE CASES DECIDED BY THIS COURT.  BOTH OF THESE RULES REST ON THE
DEEPLY IMBEDDED POSTULATE IN INTERNATIONAL LAW OF THE TERRITORIAL
SUPREMACY OF THE SOVEREIGN, A POSTULATE THAT HAS BEEN CHARACTERIZED AS
THE TOUCHSTONE OF PRIVATE AND PUBLIC INTERNATIONAL LAW.  (FN5)  THAT
THE ACT OF STATE DOCTRINE IS ROOTED IN A WELL-ESTABLISHED CONCEPT OF
INTERNATIONAL LAW IS EVIDENCED BY THE PRACTICE OF OTHER COUNTRIES. 
THESE COUNTRIES, WITHOUT EMPLOYING ANY ACT OF STATE DOCTRINE, AFFORD
SUBSTANTIAL RESPECT TO ACTS OF FOREIGN STATES OCCURRING WITHIN THEIR
TERRITORIAL CONFINES.  (FN6) OUR ACT OF STATE DOCTRINE, AS FORMULATED
IN PAST DECISIONS OF THE COURT, CARRIES THE TERRITORIAL CONCEPT ONE
STEP FURTHER.  IT PRECLUDES A CHALLENGE TO THE VALIDITY OF FOREIGN LAW
ON THE ORDINARY CONFLICT OF LAWS GROUND OF REPUGNANCY TO THE PUBLIC
POLICY OF THE FORUM.  AGAINST THE OBJECTION THAT THE FOREIGN ACT
VIOLATES DOMESTIC PUBLIC POLICY, IT HAS BEEN SAID THAT THE FOREIGN LAW
PROVIDES THE RULE OF DECISION, WHERE THE LEX LOCI RULE WOULD SO
INDICATE, IN AMERICAN COURTS.  BERNSTEIN V. VAN HEYGHEN FRERES SOCIETE
ANONYME, 163 F.2D 246, 249 (C.A.2D CIR.); HOLZER V. DEUTSCHE REICHSBAHN
GESELLSCHAFT, 277 N.Y. 474, 14 N.E.2D 798; MCCARTHY V. REICHSBANK, 259
APP. DIV. 1016, 20 N.Y.S.2D 450, AFF'D, 284 N.Y. 739, 31 N.E.2D 508. 
BUT CF. SULYOK V. PENZINTEZETI KOZPONT BUDAPEST, 279 APP. DIV.  528,
111 N.Y.S.2D 75, AFF'D, 304 N.Y. 704, 107 N.E.2D 604.  SEE ALSO PERUTZ
V. BOHEMIAN DISCOUNT BANK, 304 N.Y. 533, 537, 110 N.E.2D 6, 7. 

THE REASONS THAT UNDERLIE THE DEFERENCE AFFORDED TO FOREIGN ACTS
AFFECTING PROPERTY IN THE ACTING COUNTRY ARE SEVERAL; SUCH DEFERENCE
REFLECTS AN EFFORT TO MAINTAIN A CERTAIN STABILITY AND PREDICTABILITY
IN TRANSNATIONAL TRANSACTIONS, TO AVOID FRICTION BETWEEN NATIONS, TO
ENCOURAGE SETTLEMENT OF THESE DISPUTES THROUGH DIPLOMATIC MEANS AND TO
AVOID INTERFERENCE WITH THE EXECUTIVE CONTROL OF FOREIGN RELATIONS.  TO
ADDUCE SOUND REASONS FOR A POLICY OF NONREVIEW IS NOT TO RESOLVE THE
PROBLEM AT HAND, BUT TO DELINEATE SOME OF THE CONSIDERATIONS THAT ARE
PERTINENT TO ITS RESOLUTION. 

CONTRARY TO THE ASSUMPTION UNDERLYING THE COURT'S OPINION, THESE
CONSIDERATIONS ARE RELATIVE, THEIR STRENGTH VARIES FROM CASE TO CASE,
AND THEY ARE BY NO MEANS CONTROLLING IN ALL LITIGATION INVOLVING THE
PUBLIC ACTS OF A FOREIGN GOVERNMENT.  THIS IS MADE ABUNDANTLY CLEAR BY
NUMEROUS CASES IN WHICH THE VALIDITY OF A FOREIGN ACT OF STATE IS DRAWN
IN QUESTION AND IN WHICH THESE IDENTICAL CONSIDERATIONS ARE PRESENT IN
THE SAME OR A GREATER DEGREE.  AMERICAN COURTS HAVE DENIED RECOGNITION
OR EFFECT TO FOREIGN LAW, OTHERWISE APPLICABLE UNDER THE CONFLICT OF
LAWS RULES OF THE FORUM, TO MANY FOREIGN LAWS WHERE THESE LAWS ARE
DEEPLY INCONSISTENT WITH THE POLICY OF THE FORUM, NOTWITHSTANDING THAT
THESE LAWS WERE OF OBVIOUS POLITICAL AND SOCIAL IMPORTANCE TO THE
ACTING COUNTRY.  FOR EXAMPLE, FOREIGN CONFISCATORY DECREES PURPORTING
TO DIVEST NATIONALS AND CORPORATIONS OF THE FOREIGN SOVEREIGN OF
PROPERTY LOCATED IN THE UNITED STATES UNIFORMLY HAVE BEEN DENIED EFFECT
IN OUR COURTS, INCLUDING THIS COURT; (FN7) COURTS CONTINUED TO
RECOGNIZE PRIVATE PROPERTY RIGHTS OF RUSSIAN CORPORATIONS OWNING
PROPERTY WITHIN THE UNITED STATES LONG AFTER THE RUSSIAN GOVERNMENT,
RECOGNIZED BY THE UNITED STATES, CONFISCATED ALL SUCH PROPERTY AND HAD
RESCINDED THE LAWS ON WHICH CORPORATE IDENTITY DEPENDED.  (FN8)
FURTHERMORE, OUR COURTS CUSTOMARILY REFUSE TO ENFORCE THE REVENUE AND
PENAL LAWS OF A FOREIGN STATE, SINCE NO COUNTRY HAS AN OBLIGATION TO
FURTHER THE GOVERNMENTAL INTERESTS OF A FOREIGN SOVEREIGN.  (FN9)  AND
THE JUDGMENTS OF FOREIGN COURTS ARE DENIED CONCLUSIVE OR PRIMA FACIE
EFFECT WHERE THE JUDGMENT IS BASED ON A STATUTE UNENFORCEABLE IN THE
FORUM, WHERE THE PROCEDURES OF THE RENDERING COURT MARKEDLY DEPART FROM
OUR NOTIONS OF FAIR PROCEDURE, AND GENERALLY WHERE ENFORCEMENT WOULD BE
CONTRARY TO THE PUBLIC POLICY OF THE FORUM.  (FN10)  THESE RULES
DEMONSTRATE THAT OUR COURTS HAVE NEVER BEEN BOUND TO PAY UNLIMITED
DEFERENCE TO FOREIGN ACTS OF STATE, DEFINED AS AN ACT OR LAW IN WHICH
THE SOVEREIGN'S GOVERNMENTAL INTEREST IS INVOLVED; THEY SIMULTANEOUSLY
CAST DOUBT ON THE PROPOSITION THAT THE ADDITIONAL ELEMENT IN THE CASE
AT BAR, THAT THE PROPERTY MAY HAVE BEEN WITHIN THE TERRITORIAL CONFINES
OF CUBA WHEN THE EXPROPRIATION DECREE WAS PROMULGATED, REQUIRES
AUTOMATIC DEFERENCE TO THE DECREE, REGARDLESS OF WHETHER THE FOREIGN
ACT VIOLATES INTERNATIONAL LAW.  (FN11)

                    III. 

I START WITH WHAT I THOUGHT TO BE UNASSAILABLE PROPOSITIONS:  THAT
OUR COURTS ARE OBLIGED TO DETERMINE CONTROVERSIES ON THEIR MERITS, IN
ACCORDANCE WITH THE APPLICABLE LAW; AND THAT PART OF THE LAW AMERICAN
COURTS ARE BOUND TO ADMINISTER IS INTERNATIONAL LAW. 

ARTICLE III, SEC. 2, OF THE CONSTITUTION STATES THAT "THE JUDICIAL
POWER SHALL EXTEND TO ALL CASES  ...  AFFECTING AMBASSADORS, OTHER
PUBLIC MINISTERS AND CONSULS; - TO ALL CASES OF ADMIRALTY AND MARITIME
JURISDICTION; - TO CONTROVERSIES  ...  BETWEEN A STATE, OR THE CITIZENS
THEREOF, AND FOREIGN STATES, CITIZENS OR SUBJECTS."  AND SEC. 1332 OF
THE JUDICIAL CODE GIVES THE COURTS JURISDICTION OVER ALL CIVIL ACTIONS
BETWEEN CITIZENS OF A STATE AND FOREIGN STATES OR CITIZENS OR SUBJECTS
THEREOF.  THE DOCTRINE THAT THE LAW OF NATIONS IS A PART OF THE LAW OF
THE LAND, ORIGINALLY FORMULATED IN ENGLAND AND BROUGHT TO AMERICA AS
PART OF OUR LEGAL HERITAGE, IS REFLECTED IN THE DEBATES DURING THE
CONSTITUTIONAL CONVENTION (FN12) AND IN THE CONSTITUTION ITSELF. 
(FN13)  THIS COURT HAS TIME AND AGAIN EFFECTUATED THE CLEAR
UNDERSTANDING OF THE FRAMERS, AS EMBODIED IN THE CONSTITUTION, BY
APPLYING THE LAW OF NATIONS TO RESOLVE CASES AND CONTROVERSIES.  (FN14)
AS STATED IN THE PAQUETE HABANA, 175 U.S. 677, 700, "INTERNATIONAL LAW
IS PART OF OUR LAW, AND MUST BE ASCERTAINED AND ADMINISTERED BY THE
COURTS OF JUSTICE OF APPROPRIATE JURISDICTION, AS OFTEN AS QUESTIONS OF
RIGHT DEPENDING UPON IT ARE DULY PRESENTED FOR THEIR DETERMINATION." 
PRINCIPLES OF INTERNATIONAL LAW HAVE BEEN APPLIED IN OUR COURTS TO
RESOLVE CONTROVERSIES NOT MERELY BECAUSE THEY PROVIDE A CONVENIENT RULE
FOR DECISION BUT BECAUSE THEY REPRESENT A CONSENSUS AMONG CIVILIZED
NATIONS ON THE PROPER ORDERING OF RELATIONS BETWEEN NATIONS AND THE
CITIZENS THEREOF.  FUNDAMENTAL FAIRNESS TO LITIGANTS AS WELL AS THE
INTEREST IN STABILITY OF RELATIONSHIPS AND PRESERVATION OF REASONABLE
EXPECTATIONS CALL FOR THEIR APPLICATION WHENEVER INTERNATIONAL LAW IS
CONTROLLING IN A CASE OR CONTROVERSY.  (FN15) 

THE RELEVANCE OF INTERNATIONAL LAW TO A JUST RESOLUTION OF THIS CASE
IS APPARENT FROM THE IMPACT OF INTERNATIONAL LAW ON OTHER ASPECTS OF
THIS CONTROVERSY.  INDEED IT IS ONLY BECAUSE OF THE APPLICATION OF
INTERNATIONAL RULES TO RESOLVE OTHER ISSUES THAT THE ACT OF STATE
DOCTRINE BECOMES THE DETERMINATIVE ISSUE IN THIS CASE.  THE BASIC RULE
THAT THE LAW OF THE SITUS OF PROPERTY IS THE PROPER LAW TO BE APPLIED
IN DETERMINING TITLE IN OTHER FORUMS, WHETHER STYLED A RULE OF PRIVATE
INTERNATIONAL LAW OR DOMESTIC CONFLICT OF LAW, IS ROOTED IN CONCEPTS
FIRMLY EMBEDDED IN A CONSENSUS OF NATIONS ON TERRITORIAL SOVEREIGNTY. 
WITHOUT SUCH A CONSENSUS AND THE CONFLICT OF LAWS RULE DERIVED
THEREFROM, THE QUESTION OF WHETHER CUBA'S DECREE CAN BE MEASURED
AGAINST THE NORMS OF INTERNATIONAL LAW WOULD NEVER ARISE IN THIS
LITIGATION, SINCE THEN A COURT PRESUMABLY WOULD BE FREE TO APPLY ITS
OWN RULES GOVERNING THE ACQUISITION OF TITLE TO PROPERTY.  FURTHERMORE,
THE CONTENTION THAT THE SUGAR IN QUESTION WAS WITHIN THE TERRITORIAL
CONFINES OF CUBA WHEN THE CUBAN DECREE WAS ENACTED ITSELF RESTS ON
WIDELY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW, NAMELY, THAT THE BAYS
OR INLETS CONTIGUOUS TO A COUNTRY ARE WITHIN ITS BOUNDARIES AND THAT
TERRITORIAL JURISDICTION EXTENDS AT LEAST THREE MILES BEYOND THESE
BOUNDARIES.  SEE OPPENHEIM, INTERNATIONAL LAW, SECS. 186, 190-191
(LAUTERPACHT, 8TH ED. 1955).  WITHOUT THESE RULES DERIVED FROM
INTERNATIONAL LAW, THIS CONFISCATION COULD BE CHARACTERIZED AS
EXTRATERRITORIAL AND THEREFORE - UNLESS THE COURT ALSO INTENDS TO
CHANGE THIS RULE - SUBJECT TO THE PUBLIC POLICY TEST TRADITIONALLY
APPLIED TO EXTRATERRITORIAL TAKINGS OF PROPERTY, EVEN THOUGH
EMBARRASSING TO FOREIGN AFFAIRS.  FURTHER, IN RESPONSE TO THE
CONTENTION THAT TITLE TO THE SUGAR HAD ALREADY PASSED TO FARR, WHITLOCK
BY VIRTUE OF THE CONTRACT WITH C.A.V. WHEN THE NATIONALIZATION DECREE
TOOK EFFECT, IT WAS HELD BELOW THAT UNDER "THE LAW MERCHANT COMMON TO
CIVILIZED COUNTRIES" FARR, WHITLOCK COULD NOT ACQUIRE TITLE TO THE
SHIPMENT UNTIL PAYMENT WAS MADE IN NEW YORK.  THUS THE CENTRAL ISSUE IN
THIS LITIGATION IS POSED ONLY BECAUSE OF NUMEROUS OTHER APPLICATIONS OF
THE LAW OF NATIONS AND DOMESTIC RULES DERIVED THEREFROM IN RESPECT TO
SUBSIDIARY, BUT OTHERWISE CONTROLLING, LEGAL ISSUES IN THE
CONTROVERSY. 

THE COURT ACCEPTS THE APPLICATION OF RULES OF INTERNATIONAL LAW TO
OTHER ASPECTS OF THIS LITIGATION, ACCEPTS THE RELEVANCE OF
INTERNATIONAL LAW IN OTHER CASES AND ANNOUNCES THAT WHEN THERE IS AN
APPROPRIATE DEGREE OF "CONSENSUS CONCERNING A PARTICULAR AREA OF
INTERNATIONAL LAW, THE MORE APPROPRIATE IT IS FOR THE JUDICIARY TO
RENDER DECISIONS REGARDING IT, SINCE THE COURTS CAN THEN FOCUS ON THE
APPLICATION OF AN AGREED PRINCIPLE TO CIRCUMSTANCES OF FACT RATHER THAN
ON THE SENSITIVE TASK OF ESTABLISHING A PRINCIPLE NOT INCONSISTENT WITH
THE NATIONAL INTEREST OR WITH INTERNATIONAL JUSTICE."  ANTE, P. 428. 
THE COURT THEN, RATHER LIGHTLY IN MY VIEW, DISPENSES WITH ITS
OBLIGATION TO RESOLVE CONTROVERSIES IN ACCORDANCE WITH "INTERNATIONAL
JUSTICE" AND THE "NATIONAL INTEREST" BY ASSUMING AND DECLARING THAT
THERE ARE NO AREAS OF AGREEMENT BETWEEN NATIONS IN RESPECT TO
EXPROPRIATIONS.  THERE MAY NOT BE.  BUT WITHOUT CRITICAL EXAMINATION,
WHICH THE COURT FAILS TO PROVIDE, I WOULD NOT CONCLUDE THAT A
CONFISCATORY TAKING WHICH DISCRIMINATES AGAINST NATIONALS OF ANOTHER
COUNTRY TO RETALIATE AGAINST THE GOVERNMENT OF THAT COUNTRY FALLS
WITHIN THAT AREA OF ISSUES IN INTERNATIONAL LAW "ON WHICH OPINION SEEMS
TO BE SO DIVIDED."  NOR WOULD I ASSUME, AS THE IRONCLAD RULE OF THE
COURT NECESSARILY IMPLIES, THAT THERE IS NOT LIKELY TO BE A CONSENSUS
AMONG NATIONS IN THIS AREA, AS FOR EXAMPLE UPON THE ILLEGALITY OF
DISCRIMINATORY TAKINGS OF ALIEN PROPERTY BASED UPON RACE, RELIGION OR
NATIONALITY.  (FN16)  BUT MOST OF ALL I WOULD NOT DECLARE THAT EVEN IF
THERE WERE A CLEAR CONSENSUS IN THE INTERNATIONAL COMMUNITY, THE COURTS
MUST CLOSE THEIR EYES TO A LAWLESS ACT AND VALIDATE THE TRANSGRESSION
BY RENDERING JUDGMENT FOR THE FOREIGN STATE AT ITS OWN REQUEST.  THIS
IS AN UNFORTUNATE DECLARATION FOR THIS COURT TO MAKE.  IT IS, OF
COURSE, WHOLLY INCONSISTENT WITH THE PREMISE FROM WHICH THE COURT
STARTS, AND, UNDER IT, BANISHMENT OF INTERNATIONAL LAW FROM THE COURTS
IS COMPLETE AND FINAL IN CASES LIKE THIS.  I CANNOT SO CAVALIERLY
IGNORE THE OBLIGATIONS OF A COURT TO DISPENSE JUSTICE TO THE LITIGANTS
BEFORE IT.  (FN17)

IV. 

THE REASONS FOR NONREVIEW, BASED AS THEY ARE ON TRADITIONAL CONCEPTS
OF TERRITORIAL SOVEREIGNTY, LOSE MUCH OF THEIR FORCE WHEN THE FOREIGN
ACT OF STATE IS SHOWN TO BE A VIOLATION OF INTERNATIONAL LAW.  ALL
LEGITIMATE EXERCISES OF SOVEREIGN POWER, WHETHER TERRITORIAL OR
OTHERWISE, SHOULD BE EXERCISED CONSISTENTLY WITH RULES OF INTERNATIONAL
LAW, INCLUDING THOSE RULES WHICH MARK THE BOUNDS OF LAWFUL STATE ACTION
AGAINST ALIENS OR THEIR PROPERTY LOCATED WITHIN THE TERRITORIAL
CONFINES OF THE FOREIGN STATE.  ALTHOUGH A STATE MAY REASONABLY EXPECT
THAT THE VALIDITY OF ITS LAWS OPERATING ON PROPERTY WITHIN ITS
JURISDICTION WILL NOT BE DEFINED BY LOCAL NOTIONS OF PUBLIC POLICY OF
NUMEROUS OTHER STATES (ALTHOUGH A DIFFERENT SITUATION MAY WELL BE
PRESENTED WHEN COURTS OF ANOTHER STATE ARE ASKED TO LEND THEIR
ENFORCEMENT MACHINERY TO EFFECTUATE THE FOREIGN ACT), (FN18) IT CANNOT
WITH IMPUNITY IGNORE THE RULES GOVERNING THE CONDUCT OF ALL NATIONS AND
EXPECT THAT OTHER NATIONS AND TRIBUNALS WILL VIEW ITS ACTS AS WITHIN
THE PERMISSIBLE SCOPE OF TERRITORIAL SOVEREIGNTY.  CONTRARIWISE, TO
REFUSE INQUIRY INTO THE QUESTION OF WHETHER NORMS OF THE INTERNATIONAL
COMMUNITY HAVE BEEN CONTRAVENED BY THE ACT OF STATE UNDER REVIEW WOULD
SEEM TO DENY THE EXISTENCE OR PURPORT OF SUCH NORMS, A VIEW THAT SEEMS
INCONSISTENT WITH THE ROLE OF INTERNATIONAL LAW IN ORDERING THE
RELATIONS BETWEEN NATIONS.  FINALLY, THE IMPARTIAL APPLICATION OF
INTERNATIONAL LAW WOULD NOT ONLY BE AN AFFIRMATION OF THE EXISTENCE AND
BINDING EFFECT OF INTERNATIONAL RULES OF ORDER, BUT ALSO A REFUTATION
OF THE NOTION THAT THIS BODY OF LAW CONSISTS OF NO MORE THAN THE
DIVERGENT AND PAROCHIAL VIEWS OF THE CAPITAL IMPORTING AND EXPORTING
NATIONS, THE SOCIALIST AND FREE-ENTERPRISE NATIONS. 

THE COURT PUTS THESE CONSIDERATIONS TO REST WITH THE ASSUMPTION THAT
THE DECISIONS OF THE COURTS "OF THE WORLD'S MAJOR CAPITAL EXPORTING
COUNTRY AND PRINCIPAL EXPONENT OF THE FREE ENTERPRISE SYSTEM" WOULD
HARDLY BE ACCEPTED AS IMPARTIAL EXPRESSIONS OF SOUND LEGAL PRINCIPLE. 
THE ASSUMPTION, IF SOUND, WOULD APPLY TO ANY OTHER PROBLEM ARISING FROM
TRANSACTIONS THAT CROSS STATE LINES AND IS TANTAMOUNT TO A DECLARATION
EXCUSING THIS COURT FROM ANY FUTURE CONSEQUENTIAL ROLE IN THE
CLARIFICATION AND APPLICATION OF INTERNATIONAL LAW.  SEE NATIONAL CITY
BANK OF NEW YORK V. REPUBLIC OF CHINA, 348 U.S. 356, 363.  THIS
DECLARATION IGNORES THE HISTORIC ROLE WHICH THIS COURT AND OTHER
AMERICAN COURTS HAVE PLAYED IN APPLYING AND MAINTAINING PRINCIPLES OF
INTERNATIONAL LAW. 

OF COURSE, THERE ARE MANY UNSETTLED AREAS OF INTERNATIONAL LAW, AS
THERE ARE OF DOMESTIC LAW, AND THESE AREAS PRESENT SENSITIVE PROBLEMS
OF ACCOMMODATING THE INTERESTS OF NATIONS THAT SUBSCRIBE TO DIVERGENT
ECONOMIC AND POLITICAL SYSTEMS.  IT MAY BE THAT CERTAIN
NATIONALIZATIONS OF PROPERTY FOR A PUBLIC PURPOSE FALL WITHIN THIS
AREA.  ALSO, IT MAY BE THAT DOMESTIC COURTS, AS COMPARED TO
INTERNATIONAL TRIBUNALS, OR ARBITRAL COMMISSIONS, HAVE A DIFFERENT AND
LESS ACTIVE ROLE TO PLAY IN FORMULATING NEW RULES OF INTERNATIONAL LAW
OR IN CHOOSING BETWEEN RULES NOT YET ADHERED TO BY ANY SUBSTANTIAL
GROUP OF NATIONS.  WHERE A CLEAR VIOLATION OF INTERNATIONAL LAW IS NOT
DEMONSTRATED, I WOULD AGREE THAT PRINCIPLES OF COMITY UNDERLYING THE
ACT OF STATE DOCTRINE WARRANT RECOGNITION AND ENFORCEMENT OF THE
FOREIGN ACT.  BUT NONE OF THESE CONSIDERATIONS RELIEVE A COURT OF THE
OBLIGATION TO MAKE AN INQUIRY INTO THE VALIDITY OF THE FOREIGN ACT,
NONE OF THEM WARRANT A FLAT RULE OF NO INQUIRY AT ALL.  THE VICE OF THE
ACT OF STATE DOCTRINE AS FORMULATED BY THE COURT AND APPLIED IN THIS
CASE, WHERE THE DECREE IS ALLEGED NOT ONLY TO BE CONFISCATORY BUT ALSO
RETALIATORY AND DISCRIMINATORY AND HAS BEEN FOUND BY TWO COURTS TO BE A
FLAGRANT VIOLATION OF INTERNATIONAL LAW, IS THAT IT PRECLUDES ANY SUCH
EXAMINATION AND PROSCRIBES ANY DECISION ON WHETHER CUBAN LAW NO. 851
CONTRAVENES AN ACCEPTED PRINCIPLE OF INTERNATIONAL LAW. 

THE OTHER OBJECTIONS TO REVIEWING THE ACT CHALLENGED HEREIN, SAVE FOR
THE ALLEGED INTERFERENCE WITH THE EXECUTIVE'S CONDUCT OF FOREIGN
AFFAIRS, SEEM WITHOUT SUBSTANCE, BOTH IN THEORY AND AS APPLIED TO THE
FACTS OF THE INSTANT CASE.  THE ACHIEVEMENT OF A MINIMUM AMOUNT OF
STABILITY AND PREDICTABILITY IN INTERNATIONAL COMMERCIAL TRANSACTIONS
IS NOT ASSURED BY A RULE OF NONREVIEWABILITY WHICH PERMITS ANY ACT OF A
FOREIGN STATE, REGARDLESS OF ITS VALIDITY UNDER INTERNATIONAL LAW, TO
PASS MUSTER IN THE COURTS OF OTHER STATES.  THE VERY ACT OF A FOREIGN
STATE AGAINST ALIENS WHICH CONTRAVENES RULES OF INTERNATIONAL LAW, THE
PURPOSE OF WHICH IS TO SUPPORT AND FOSTER AN ORDER UPON WHICH PEOPLE
CAN RELY, IS AT ODDS WITH THE ACHIEVEMENT OF STABILITY AND
PREDICTABILITY IN INTERNATIONAL TRANSACTIONS.  AND THE INFREQUENCY OF
CASES IN AMERICAN COURTS INVOLVING FOREIGN ACTS OF STATE CHALLENGED AS
INVALID UNDER INTERNATIONAL LAW FURNISHES NO BASIS AT ALL FOR TREATING
THE MATTER AS UNIMPORTANT AND FOR ERECTING THE RULE THE COURT ANNOUNCES
TODAY.  (FN19) 

THERE IS ALSO THE CONTENTION THAT THE ACT OF STATE DOCTRINE SERVES TO
CHANNEL THESE DISPUTES THROUGH THE PROCESSES DESIGNED TO RECTIFY WRONGS
OF AN INTERNATIONAL MAGNITUDE, SEE OETJEN V. CENTRAL LEATHER CO.,
SUPRA; SHAPLEIGH V. MIER, SUPRA.  THE RESULT OF THE DOCTRINE, IT IS
SAID, REQUIRES AN ALIEN TO SEEK RELIEF IN THE COURTS OR THROUGH THE
EXECUTIVE OF THE EXPROPRIATING COUNTRY, TO SEEK RELIEF THROUGH
DIPLOMATIC CHANNELS OF HIS OWN COUNTRY AND TO SEEK REVIEW IN AN
INTERNATIONAL TRIBUNAL.  THESE ARE FACTORS AN AMERICAN COURT WOULD
CONSIDER WHEN ASKED TO EXAMINE A FOREIGN ACT OF STATE, ALTHOUGH THE
AVAILABILITY AND EFFECTIVENESS OF THESE MODES OF ACCOMMODATION MAY MORE
OFTEN BE ILLUSORY THAN REAL.  WHERE ALTERNATIVE MODES ARE AVAILABLE AND
ARE LIKELY TO BE EFFECTIVE, OUR COURTS MIGHT WELL STAY THEIR HAND AND
DIRECT A LITIGANT TO EXHAUST OR ATTEMPT TO UTILIZE THEM BEFORE
ADJUDICATING THE VALIDITY OF THE FOREIGN ACT OF STATE.  BUT THE
POSSIBILITY OF ALTERNATIVE REMEDIES, WITHOUT MORE, IS FRAIL SUPPORT FOR
A RULE OF AUTOMATIC DEFERENCE TO THE FOREIGN ACT IN ALL CASES.  THE
COURT'S RULE IS PECULIARLY INAPPROPRIATE IN THE INSTANT CASE, WHERE NO
ONE HAS ARGUED THAT C.A.V. CAN OBTAIN RELIEF IN THE COURTS OF CUBA,
WHERE THE UNITED STATES HAS BROKEN OFF DIPLOMATIC RELATIONS WITH CUBA,
AND WHERE THE UNITED STATES, ALTHOUGH PROTESTING THE ILLEGALITY OF THE
CUBAN DECREES, HAS NOT SOUGHT TO INSTITUTE ANY ACTION AGAINST CUBA IN
AN INTERNATIONAL TRIBUNAL. 

                                 V. 

THERE REMAINS FOR CONSIDERATION THE RELATIONSHIP BETWEEN THE ACT OF
STATE DOCTRINE AND THE POWER OF THE EXECUTIVE OVER MATTERS TOUCHING
UPON THE FOREIGN AFFAIRS OF THE NATION.  IT IS URGED THAT THE ACT OF
STATE DOCTRINE IS A NECESSARY COROLLARY OF THE EXECUTIVE'S AUTHORITY TO
DIRECT THE FOREIGN RELATIONS OF THE UNITED STATES AND ACCORDINGLY ANY
EXCEPTION IN THE DOCTRINE, EVEN IF LIMITED TO CLEAR VIOLATIONS OF
INTERNATIONAL LAW, WOULD IMPEDE OR EMBARRASS THE EXECUTIVE IN
DISCHARGING HIS CONSTITUTIONAL RESPONSIBILITIES.  THUS, ACCORDING TO
THE COURT, EVEN IF PRINCIPLES OF COMITY DO NOT PRECLUDE INQUIRY INTO
THE VALIDITY OF A FOREIGN ACT UNDER INTERNATIONAL LAW, DUE REGARD FOR
THE EXECUTIVE FUNCTION FORBIDS SUCH EXAMINATION IN THE COURTS. 

WITHOUT DOUBT POLITICAL MATTERS IN THE REALM OF FOREIGN AFFAIRS ARE
WITHIN THE EXCLUSIVE DOMAIN OF THE EXECUTIVE BRANCH, AS, FOR EXAMPLE,
ISSUES FOR WHICH THERE ARE NO AVAILABLE STANDARDS OR WHICH ARE
TEXTUALLY COMMITTED BY THE CONSTITUTION TO THE EXECUTIVE.  (FN20)  BUT
THIS IS FAR FROM SAYING THAT THE CONSTITUTION VESTS IN THE EXECUTIVE
EXCLUSIVE ABSOLUTE CONTROL OF FOREIGN AFFAIRS OR THAT THE VALIDITY OF A
FOREIGN ACT OF STATE IS NECESSARILY A POLITICAL QUESTION. 
INTERNATIONAL LAW, AS WELL AS A TREATY OR EXECUTIVE AGREEMENT, SEE
UNITED STATES V. PINK, 315 U.S. 203, PROVIDES AN ASCERTAINABLE STANDARD
FOR ADJUDICATING THE VALIDITY OF SOME FOREIGN ACTS, AND COURTS ARE
COMPETENT TO APPLY THIS BODY OF LAW, NOTWITHSTANDING THAT THERE MAY BE
SOME CASES WHERE COMITY DICTATES GIVING EFFECT TO THE FOREIGN ACT
BECAUSE IT IS NOT CLEARLY CONDEMNED UNDER GENERALLY ACCEPTED PRINCIPLES
OF INTERNATIONAL LAW.  AND IT CANNOT BE CONTENDED THAT THE CONSTITUTION
ALLOCATES THIS AREA TO THE EXCLUSIVE JURISDICTION OF THE EXECUTIVE, FOR
THE JUDICIAL POWER IS EXPRESSLY EXTENDED BY THAT DOCUMENT TO
CONTROVERSIES BETWEEN ALIENS AND CITIZENS OR STATES, ALIENS AND ALIENS,
AND FOREIGN STATES AND AMERICAN CITIZENS OR STATES. 

A VALID STATUTE, TREATY OR EXECUTIVE AGREEMENT COULD, I ASSUME,
CONFINE THE POWER OF FEDERAL COURTS TO REVIEW OR AWARD RELIEF IN
RESPECT OF FOREIGN ACTS OR OTHERWISE DISPLACE INTERNATIONAL LAW AS THE
RULE OF DECISION.  I WOULD NOT DISREGARD A DECLARATION BY THE SECRETARY
OF STATE OR THE PRESIDENT THAT AN ADJUDICATION IN THE COURTS OF THE
VALIDITY OF A FOREIGN EXPROPRIATION WOULD IMPEDE RELATIONS BETWEEN THE
UNITED STATES AND THE FOREIGN GOVERNMENT OR THE SETTLEMENT OF THE
CONTROVERSY THROUGH DIPLOMATIC CHANNELS.  BUT I REJECT THE PRESUMPTION
THAT THESE UNDESIRABLE CONSEQUENCES WOULD FOLLOW FROM ADJUDICATION IN
EVERY CASE, REGARDLESS OF THE CIRCUMSTANCES.  CERTAINLY THE PRESUMPTION
IS INAPPROPRIATE HERE. 

SOON AFTER THE PROMULGATION OF CUBAN LAW NO. 851, THE STATE
DEPARTMENT OF THE UNITED STATES DELIVERED A NOTE OF PROTEST TO THE
CUBAN GOVERNMENT DECLARING THIS NATIONALIZATION LAW TO BE IN VIOLATION
OF INTERNATIONAL LAW.  (FN21)  SINCE THE NATIONALIZATION OF THE
PROPERTY IN QUESTION, THE UNITED STATES HAS BROKEN OFF DIPLOMATIC
RELATIONS WITH THE PRESENT GOVERNMENT OF CUBA.  AND IN RESPONSE TO
INQUIRIES BY COUNSEL FOR THE RESPONDENT IN THE INSTANT CASE, OFFICIALS
OF THE STATE DEPARTMENT NOWHERE ALLEGED THAT ADJUDICATION OF THE
VALIDITY OF THE CUBAN DECREE NATIONALIZING C.A.V. WOULD EMBARRASS OUR
RELATIONS WITH CUBA OR IMPEDE SETTLEMENT ON AN INTERNATIONAL LEVEL.  IN
1963, THE UNITED STATES GOVERNMENT ISSUED A FREEZE ORDER ON ALL CUBAN
ASSETS LOCATED IN THE UNITED STATES.  ON THESE FACTS - ALTHOUGH THERE
MAY BE OTHERS OF WHICH WE ARE NOT AWARE - IT IS WHOLLY UNWARRANTED TO
ASSUME THAT AN EXAMINATION OF THE VALIDITY OF CUBAN LAW NO. 851 AND A
FINDING OF INVALIDITY WOULD INTRUDE UPON THE RELATIONS BETWEEN THE
UNITED STATES AND CUBA. 

BUT THE COURT IS MOVED BY THE SPECTRE OF ANOTHER POSSIBILITY; IT IS
SAID THAT AN EXAMINATION OF THE VALIDITY OF THE CUBAN LAW IN THIS CASE
MIGHT LEAD TO A FINDING THAT THE ACT IS NOT IN VIOLATION OF WIDELY
ACCEPTED INTERNATIONAL NORMS OR THAT AN ADJUDICATION HERE WOULD REQUIRE
A SIMILAR EXAMINATION IN OTHER MORE DIFFICULT CASES, IN ONE OF WHICH IT
WOULD BE FOUND THAT THE FOREIGN LAW IS NOT IN BREACH OF INTERNATIONAL
LAW.  THE FINDING, EITHER IN THIS CASE OR SUBSEQUENT ONES, THAT A
FOREIGN ACT DOES NOT VIOLATE WIDELY ACCEPTED INTERNATIONAL PRINCIPLES,
MIGHT DIFFER FROM THE EXECUTIVE'S VIEW OF THE ACT AND INTERNATIONAL
LAW, MIGHT THEREBY SERIOUSLY IMPEDE THE EXECUTIVE'S FUNCTIONS IN
NEGOTIATING A SETTLEMENT OF THE CONTROVERSY AND WOULD THEREFORE BE
INCONSISTENT WITH THE NATIONAL INTEREST.  "THE VERY EXPRESSION OF
JUDICIAL UNCERTAINTY MIGHT PROVIDE EMBARRASSMENT TO THE EXECUTIVE
BRANCH."  ANTE, P. 433.  THESE SPECULATIONS, FOUNDED ON THE SUPPOSED
IMPACT OF A JUDICIAL DECISION ON DIPLOMATIC RELATIONS, SEEM CONTRARY TO
THE COURT'S VIEW OF THE ARSENAL OF WEAPONS POSSESSED BY THIS COUNTRY TO
MAKE SECURE FOREIGN INVESTMENT AND THE "AMPLE POWERS OF THE POLITICAL
BRANCHES TO EFFECT COMPENSATION," ANTE, P. 436, AND WHOLLY INCONSISTENT
WITH ITS VIEW OF THE LIMITED COMPETENCE AND KNOWLEDGE OF THE JUDICIARY
IN THE AREA OF FOREIGN AFFAIRS AND DIPLOMACY.  MOREOVER, THE EXPRESSION
OF UNCERTAINTY FEARED BY THE COURT IS INEVITABLE UNDER THE COURT'S
APPROACH, AS IS WELL EXEMPLIFIED BY THE EX-CATHEDRA PRONOUNCEMENTS IN
THE INSTANT CASE.  WHILE PREMISING THAT A JUDICIAL EXPRESSION OF
UNCERTAINTY ON WHETHER A PARTICULAR ACT CLEARLY VIOLATES INTERNATIONAL
LAW WOULD BE EMBARRASSING TO THE EXECUTIVE, THIS COURT, IN THIS VERY
CASE, ANNOUNCES AS AN UNDERPINNING OF ITS DECISION THAT "THERE ARE FEW
IF ANY ISSUES IN INTERNATIONAL LAW TODAY ON WHICH OPINION SEEMS TO BE
SO DIVIDED AS THE LIMITATIONS ON A STATE'S POWER TO EXPROPRIATE THE
PROPERTY OF ALIENS," AND PROCEEDS TO DEMONSTRATE THE ABSENCE OF
INTERNATIONAL STANDARDS BY CATALOGUING THE DIVERGENT VIEWS OF THE
"CAPITAL EXPORTING," "FREE ENTERPRISE" NATIONS, OF THE "NEWLY
INDEPENDENT AND UNDERDEVELOPED COUNTRIES," AND OF THE "COMMUNIST
COUNTRIES" TOWARD BOTH THE ISSUE OF EXPROPRIATION AND INTERNATIONAL LAW
GENERALLY.  THE ACT OF STATE DOCTRINE FORMULATED BY THE COURT BARS
REVIEW IN THIS CASE AND WILL DO SO IN ALL OTHERS INVOLVING
EXPROPRIATION OF ALIEN PROPERTY PRECISELY BECAUSE OF THE LACK OF A
CONSENSUS IN THE INTERNATIONAL COMMUNITY ON RULES OF LAW GOVERNING
FOREIGN EXPROPRIATIONS.  (FN22)  CONTRARIWISE, IT WOULD SEEM THAT THE
ACT OF STATE DOCTRINE WILL NOT APPLY TO A FOREIGN ACT IF IT CONCERNS AN
AREA IN WHICH THERE IS UNUSUAL AGREEMENT AMONG NATIONS, ANTE, P. 428,
WHICH IS NOT THE CASE WITH THE BROAD AREA OF EXPROPRIATIONS.  (FN23)  I
FAIL TO SEE HOW GREATER EMBARRASSMENT FLOWS FROM SAYING THAT THE
FOREIGN ACT DOES NOT VIOLATE CLEAR AND WIDELY ACCEPTED PRINCIPLES OF
INTERNATIONAL LAW THAN FROM SAYING, AS THE COURT DOES, THAT
NONEXAMINATION AND VALIDATION ARE REQUIRED BECAUSE THERE ARE NO WIDELY
ACCEPTED PRINCIPLES TO WHICH TO SUBJECT THE FOREIGN ACT.  (FN24)  AS TO
POTENTIAL EMBARRASSMENT, THE DIFFERENCE IS SEMANTIC, BUT AS TO
DETERMINING THE ISSUE ON ITS MERITS AND AS TO UPHOLDING A REGIME OF
LAW, THE DIFFERENCE IS VAST. 

THERE IS A FURTHER POSSIBILITY OF EMBARRASSMENT TO THE EXECUTIVE FROM
THE BLANKET PRESUMPTION OF VALIDITY APPLICABLE TO ALL FOREIGN
EXPROPRIATIONS, WHICH THE COURT CHOOSES TO IGNORE, AND WHICH, IN MY
VIEW, IS FAR MORE SELF-EVIDENT THAN THOSE ADDUCED BY THE COURT.  THAT
EMBARRASSMENT STEMS FROM THE REQUIREMENT THAT ALL COURTS, INCLUDING
THIS COURT, APPROVE, VALIDATE, AND ENFORCE ANY FOREIGN ACT
EXPROPRIATING PROPERTY, AT THE BEHEST OF THE FOREIGN STATE OR A PRIVATE
SUITOR, REGARDLESS OF WHETHER THE ACT ARBITRARILY DISCRIMINATES AGAINST
ALIENS ON THE BASIS OF RACE, RELIGION, OR NATIONALITY, AND REGARDLESS
OF THE POSITION THE EXECUTIVE HAS TAKEN IN RESPECT TO THE ACT.  I WOULD
THINK THAT AN ADJUDICATION BY THIS COURT THAT THE FOREIGN ACT, AS TO
WHICH THE EXECUTIVE IS PROTESTING AND ATTEMPTING TO SECURE RELIEF FOR
AMERICAN CITIZENS, IS VALID AND BEYOND QUESTION ENFORCIBLE IN THE
COURTS OF THE UNITED STATES WOULD INDEED PROVE EMBARRASSING TO THE
EXECUTIVE BRANCH OF OUR GOVERNMENT IN MANY SITUATIONS, MUCH MORE SO
THAN A DECLARATION OF INVALIDITY OR A REFUSAL TO ADJUDICATE THE
CONTROVERSY AT ALL.  FOR THE LIKELIHOOD THAT VALIDATION AND ENFORCEMENT
OF A FOREIGN ACT WHICH IS CONDEMNED BY THE EXECUTIVE WILL BE
INCONSISTENT WITH NATIONAL POLICY AS WELL AS THE GOALS OF THE
INTERNATIONAL COMMUNITY IS GREAT.  (FN25)  THIS RESULT IS PRECISELY
BECAUSE THE COURT, NOTWITHSTANDING ITS PROTESTATIONS TO THE CONTRARY,
ANTE, P. 428, HAS LAID DOWN "AN INFLEXIBLE AND ALL-ENCOMPASSING RULE IN
THIS CASE."  (FN26)                                       VI. 

OBVIOUSLY THERE ARE CASES WHERE AN EXAMINATION OF THE FOREIGN ACT AND
DECLARATION OF INVALIDITY OR VALIDITY MIGHT UNDERMINE THE FOREIGN
POLICY OF THE EXECUTIVE BRANCH AND ITS ATTEMPTS AT NEGOTIATING A
SETTLEMENT FOR A NATIONALIZATION OF THE PROPERTY OF AMERICANS.  THE
RESPECT ORDINARILY DUE TO A FOREIGN STATE, AS REFLECTED IN THE
DECISIONS OF THIS COURT, RESTS UPON A DESIRE NOT TO DISTURB THE
RELATIONS BETWEEN COUNTRIES AND ON A VIEW THAT OTHER MEANS, MORE
EFFECTIVE THAN PIECEMEAL ADJUDICATIONS OF CLAIMS ARISING OUT OF A LARGE
SCALE NATIONALIZATION PROGRAM OF SETTLING THE DISPUTE, MAY BE
AVAILABLE.  PRECISELY BECAUSE THESE CONSIDERATIONS ARE MORE OR LESS
PRESENT, OR ABSENT, IN ANY GIVEN SITUATION AND BECAUSE THE DEPARTMENT
OF OUR GOVERNMENT PRIMARILY RESPONSIBLE FOR THE FORMULATION OF FOREIGN
POLICY AND SETTLING THESE MATTERS ON A STATE-TO-STATE BASIS IS MORE
COMPETENT THAN COURTS TO DETERMINE THE EXTENT TO WHICH THEY ARE
INVOLVED, A BLANKET PRESUMPTION OF NONREVIEW IN EACH CASE IS
INAPPROPRIATE AND A REQUIREMENT THAT THE STATE DEPARTMENT RENDER A
DETERMINATION AFTER REASONABLE NOTICE, IN EACH CASE, IS NECESSARY. 
SUCH AN EXAMINATION WOULD PERMIT THE DEPARTMENT TO EVALUATE WHETHER
ADJUDICATION WOULD "VEX THE PEACE OF NATIONS," WHETHER A FRIENDLY
FOREIGN SOVEREIGN IS INVOLVED, AND WHETHER SETTLEMENT THROUGH DIPLOMACY
OR THROUGH AN INTERNATIONAL TRIBUNAL OR ARBITRATION IS IMPENDING. 
BASED UPON SUCH AN EVALUATION, THE DEPARTMENT MAY RECOMMEND TO THE
COURT THAT ADJUDICATION SHOULD NOT PROCEED AT THE PRESENT TIME.  SUCH A
REQUEST I WOULD ACCORD CONSIDERABLE DEFERENCE AND I WOULD NOT REQUIRE A
FULL STATEMENT OF REASONS UNDERLYING IT. BUT I REJECT THE CONTENTION
THAT THE RECOMMENDATION ITSELF WOULD SOMEHOW IMPEDE THE FOREIGN
RELATIONS OF THE UNITED STATES OR UNDULY BURDEN THE DEPARTMENT.  THE
COURT NOTES THAT "ADVERSE DOMESTIC CONSEQUENCES MIGHT FLOW FROM AN
OFFICIAL STAND," BY WHICH I TAKE IT TO MEAN THAT IT MIGHT BE
POLITICALLY EMBARRASSING ON THE DOMESTIC FRONT FOR THE DEPARTMENT OF
STATE TO INTERPOSE AN OBJECTION IN A PARTICULAR CASE WHICH HAS
ATTRACTED PUBLIC ATTENTION.  BUT AN OFFICIAL STAND IS WHAT THE
DEPARTMENT MUST TAKE UNDER THE SO-CALLED BERNSTEIN EXCEPTION, WHICH THE
COURT DELINES TO DISAPPROVE.  ASSUMING THAT THERE IS A DIFFERENCE
BETWEEN AN EXPRESS OFFICIAL OBJECTION TO EXAMINATION AND THE
EXECUTIVE'S REFUSAL TO RELIEVE "THE COURT FROM ANY CONSTRAINT UPON THE
EXERCISE OF ITS JURISDICTION," IT IS NOT FAIR TO ALLOW THE FATE OF A
LITIGANT TO TURN ON THE POSSIBLE POLITICAL EMBARRASSMENT OF THE
DEPARTMENT OF STATE AND IT IS NOT THIS COURT'S ROLE TO ENCOURAGE OR
REQUIRE NONEXAMINATION BY BOTTOMING A RULE OF LAW ON THE DOMESTIC
PUBLIC RELATIONS OF THE DEPARTMENT OF STATE.  THE COURT ALSO REJECTS
THIS PROCEDURE BECAUSE IT MAKES THE EXAMINATION OF VALIDITY TURN ON AN
EDUCATED GUESS BY THE EXECUTIVE AS TO THE PROBABLE RESULT AND SUCH A
GUESS MIGHT TURN OUT TO BE ERRONEOUS.  THE UNITED STATES IN ITS BRIEF
HAS DISCLAIMED ANY SUCH INTEREST IN THE RESULT IN THESE CASES, EITHER
IN THE ULTIMATE OUTCOME OR THE DETERMINATION OF VALIDITY, AND I WOULD
TAKE THE GOVERNMENT AT ITS WORD IN THIS MATTER, WITHOUT SECOND-GUESSING
THE WISDOM OF ITS VIEW. 

THIS IS PRECISELY THE PROCEDURE THAT THE DEPARTMENT OF STATE ADOPTED
VOLUNTARILY IN THE SITUATION WHERE A FOREIGN GOVERNMENT SEEKS TO INVOKE
THE DEFENSE OF IMMUNITY IN OUR COURTS.  (FN27)  IF IT IS NOT UNDULY
DISRUPTIVE FOR THE DEPARTMENT TO DETERMINE WHETHER TO ISSUE A
CERTIFICATE OF IMMUNITY TO A FOREIGN GOVERNMENT ITSELF WHEN IT SEEKS
ONE, A RECOMMENDATION BY THE DEPARTMENT IN CASES WHERE GENERALLY THE
SOVEREIGN IS NOT A PARTY CAN HARDLY BE DEEMED EMBARRASSING TO OUR
FOREIGN RELATIONS.  MOREOVER, SUCH A PROCEDURE WOULD BE CONSONANT WITH
THE OBLIGATION OF COURTS TO ADJUDICATE CASES ON THE MERITS EXCEPT FOR
REASONS WHOLLY SUFFICIENT IN THE PARTICULAR CASE.  AS I UNDERSTAND IT,
THE EXECUTIVE HAS NOT YET SAID THAT ADJUDICATION IN THIS CASE WOULD
IMPEDE HIS FUNCTIONS IN THE PREMISES; RATHER HE HAS ASKED US TO ADOPT A
RULE OF LAW FORECLOSING INQUIRY INTO THE SUBJECT UNLESS THE EXECUTIVE
AFFIRMATIVELY ALLOWS THE COURTS TO ADJUDICATE ON THE MERITS. 

WHERE THE COURTS ARE REQUESTED TO APPLY THE ACT OF STATE DOCTRINE AT
THE BEHEST OF THE STATE DEPARTMENT, IT DOES NOT FOLLOW THAT THE COURTS
ARE TO PROCEED TO ADJUDICATE THE ACTION WITHOUT EXAMINING THE VALIDITY
OF THE FOREIGN ACT UNDER INTERNATIONAL LAW.  THE FOREIGN RELATIONS
CONSIDERATIONS AND POTENTIAL OF EMBARRASSMENT TO THE EXECUTIVE INHERE
IN EXAMINATION OF THE FOREIGN ACT AND IN THE RESULT FOLLOWING FROM SUCH
AN EXAMINATION, NOT IN THE MATTER OF WHO WINS.  THUS, ALL THE
DEPARTMENT OF STATE CAN LEGITIMATELY REQUEST IS NONEXAMINATION OF THE
FOREIGN ACT.  IT HAS NO PROPER INTEREST OR AUTHORITY IN HAVING COURTS
DECIDE A CONTROVERSY UPON ANYTHING LESS THAN ALL OF THE APPLICABLE LAW
OR TO DECIDE IT IN ACCORDANCE WITH THE EXECUTIVE'S VIEW OF THE OUTCOME
THAT BEST COMPORTS WITH THE FOREIGN OR DOMESTIC AFFAIRS OF THE DAY.  WE
ARE NOT DEALING HERE WITH THOSE CASES WHERE A COURT REFUSES TO MEASURE
A FOREIGN STATUTE AGAINST PUBLIC POLICY OF THE FORUM OR AGAINST THE
FUNDAMENTAL LAW OF THE FOREIGN STATE ITSELF.  IN THOSE CASES THE
JUDICIALLY CREATED ACT OF STATE DOCTRINE IS AN ASPECT OF THE CONFLICT
OF LAWS RULES OF THE FORUM AND RENDERS THE FOREIGN LAW CONTROLLING. 
BUT WHERE A COURT REFUSES TO EXAMINE FOREIGN LAW UNDER PRINCIPLES OF
INTERNATIONAL LAW, WHICH IT IS REQUIRED TO DO, SOLELY BECAUSE THE
EXECUTIVE BRANCH REQUESTS THE COURT, FOR ITS OWN REASONS, TO ABSTAIN
FROM DECIDING THE CONTROLLING ISSUE IN THE CONTROVERSY, THEN IN MY
VIEW, THE EXECUTIVE HAS REMOVED THE CASE FROM THE REALM OF THE LAW TO
THE REALM OF POLITICS, AND A COURT MUST DECLINE TO PROCEED WITH THE
CASE.  THE PROPER DISPOSITION IS TO STAY THE PROCEEDINGS UNTIL
CIRCUMSTANCES PERMIT AN ADJUDICATION OR TO DISMISS THE ACTION WHERE AN
ADJUDICATION WITHIN A REASONABLE TIME DOES NOT SEEM FEASIBLE.  TO DO
OTHERWISE WOULD NOT BE IN ACCORDANCE WITH THE OBLIGATION OF COURTS TO
DECIDE CONTROVERSIES JUSTLY AND IN ACCORDANCE WITH THE LAW APPLICABLE
TO THE CASE. 

IT IS ARGUED THAT ABSTENTION IN THE CASE AT BAR WOULD ALLOW C.A.V. TO
RETAIN POSSESSION OF THE PROCEEDS FROM THE SUGAR AND WOULD ENCOURAGE
WRONGFULLY DEPRIVED OWNERS TO ENGAGE IN DEVIOUS CONDUCT OR "SELF-HELP"
IN ORDER TO COMPEL THE SOVEREIGN OR ONE DERIVING TITLE FROM IT INTO THE
POSITION OF PLAINTIFF.  THE SHORT ANSWER TO THIS IS THAT IT BEGS THE
QUESTION; NEGOTIATION OF THE DOCUMENTS BY FARR, WHITLOCK AND RETENTION
OF THE PROCEEDS BY C.A.V. IS UNLAWFUL IF, BUT ONLY IF, CUBA ACQUIRED
TITLE TO THE SHIPMENT BY VIRTUE OF THE NATIONALIZATION DECREE.  THIS IS
THE ISSUE THAT CANNOT BE DECIDED IN THE CASE IF DEFERENCE TO THE STATE
DEPARTMENT'S RECOMMENDATION IS PAID (ASSUMING FOR THE MOMENT THAT SUCH
A RECOMMENDATION HAS BEEN MADE).  NOR IS IT APPARENT THAT "SELF-HELP,"
IF SUCH IT BE DEEMED, IN THE FORM OF REFUSING TO RECOGNIZE TITLE
DERIVED FROM UNLAWFUL PARAMOUNT FORCE IS DISRUPTIVE OF OR CONTRARY TO A
PEACEFUL INTERNATIONAL ORDER.  FURTHERMORE, A COURT HAS AMPLE MEANS AT
ITS DISPOSAL TO PREVENT A PARTY WHO HAS ENGAGED IN WRONGFUL CONDUCT
FROM SETTING UP DEFENSES WHICH WOULD ALLOW HIM TO PROFIT FROM THE
WRONGDOING.  WHERE THE ACT OF STATE DOCTRINE BECOMES A RULE OF JUDICIAL
ABSTENTION RATHER THAN A RULE OF DECISION FOR THE COURTS, THE PROPER
DISPOSITION IS DISMISSAL OF THE COMPLAINT OR STAYING THE LITIGATION
UNTIL THE BAR IS LIFTED, REGARDLESS OF WHO HAS POSSESSION OF THE
PROPERTY TITLE TO WHICH IS IN DISPUTE. 

VII. 

THE POSITION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT CHARGED WITH
FOREIGN AFFAIRS WITH RESPECT TO THIS CASE IS NOT ENTIRELY CLEAR.  AS I
SEE IT NO SPECIFIC OBJECTION BY THE SECRETARY OF STATE TO EXAMINATION
OF THE VALIDITY OF CUBA'S LAW HAS BEEN INTERPOSED AT ANY STAGE IN THESE
PROCEEDINGS, WHICH WOULD ORDINARILY LEAD TO AN ADJUDICATION ON THE
MERITS.  DISCLAIMING, RIGHTFULLY, I THINK, ANY INTEREST IN THE OUTCOME
OF THE CASE, THE UNITED STATES HAS SIMPLY ARGUED FOR A RULE OF
NONEXAMINATION IN EVERY CASE, WHICH LITERALLY, I SUPPOSE, INCLUDES THIS
ONE.  IF MY VIEW HAD PREVAILED I WOULD HAVE STAYED FURTHER RESOLUTION
OF THE ISSUES IN THIS COURT TO AFFORD THE DEPARTMENT OF STATE
REASONABLE TIME TO CLARIFY ITS VIEWS IN LIGHT OF THE OPINION.  IN THE
ABSENCE OF A SPECIFIC OBJECTION TO AN EXAMINATION OF THE VALIDITY OF
CUBA'S LAW UNDER INTERNATIONAL LAW, I WOULD HAVE PROCEEDED TO DETERMINE
THE ISSUE AND RESOLVE THIS LITIGATION ON THE MERITS. 

FN1  THE COURTS OF THE FOLLOWING COUNTRIES, AMONG OTHERS, AND THEIR
TERRITORIES HAVE EXAMINED A FULLY "EXECUTED" FOREIGN ACT OF STATE
EXPROPRIATING PROPERTY: 

ENGLAND:  ANGLO-IRANIAN OIL CO. V. JAFFRATE, (1953) INT'L L. REP. 316
(ADEN SUP. CT.); N.V. DE BATAAFSCHE PETROLEUM MAATSCHAPPIJ V. THE WAR
DAMAGE COMM'N, (1956) INT'L REP.  810 (SINGAPORE CT. APP.). 

NETHERLANDS:  SENEMBAH MAATSCHAPPIJ N.V. V. RUPUBLIEK INDONESIE BANK
INDONESIA, NEDERLANDSE JURISPRUDENTIE 1959, NO. 73, P. 218 (AMSTERDAM
CT. APP.), EXCERPTS REPRINTED IN DOMKE, INDONESIAN NATIONALIZATION
MEASURES BEFORE FOREIGN COURTS, 54 AM. J. INT'L L. 305, 307-315
(1960). 

GERMANY:  N.V. VERENIGDE DELI-MAATSCHAPIJEN V. DEUTSCH-INDONESISCHE
TABAK-HANDELSGESELLSCHAFT M.B.H. (BREMEN CT. APP.), EXCERPTS REPRINTED
IN DOMKE, SUPRA, AT 313-314 (1960); CONFISCATION OF PROPERTY OF SUDETEN
GERMANS CASE, (1948) ANN. DIG.  24, 25 (NO. 12) (AMTSGERICHT OF
DINGOLFING). 

JAPAN:  ANGLO-IRANIAN OIL CO. V. IDEMITSU KOSAN KABUSHIKI KAISHA,
(1953) INT'L L. REP.  305 (DIST. CT. OF TOKYO), AFF'D, (1953) INT'L L.
REP. 312 (HIGH CT. OF TOKYO). 

ITALY:  ANGLO-IRANIAN OIL CO. V. S.U.P.O.R. CO., (1955) INT'L L. REP.
19 (CT. OF VENICE); ANGLO-IRANIAN OIL CO. V. S.U.P.O.R. CO., (1955)
INT'L L. REP. 23 (CIV. CT. OF ROME). 

FRANCE:  VOLATRON V. MOULIN (1938-1940) ANN. DIG.  24 (CT. OF APP. OF
AIX); SOCIETE POTASAS IBERICAS V. NATHAN BLOCH, (1938-1940) ANN. DIG. 
150 (CT. OF CASSATION). 

THE COURT DOES NOT REFER TO ANY COUNTRY WHICH HAS APPLIED THE ACT OF
STATE DOCTRINE IN A CASE WHERE A SUBSTANTIAL INTERNATIONAL LAW ISSUE IS
SOUGHT TO BE RAISED BY AN ALIEN WHOSE PROPERTY HAS BEEN EXPROPRIATED. 
THIS COUNTRY AND THIS COURT STAND ALONE AMONG THE CIVILIZED NATIONS OF
THE WORLD IN RULING THAT SUCH AN ISSUE IS NOT COGNIZABLE IN A COURT OF
LAW. 

THE COURT NOTES THAT THE COURTS OF BOTH NEW YORK AND GREAT BRITAIN
HAVE ARTICULATED THE ACT OF STATE DOCTRINE IN BROAD LANGUAGE SIMILAR TO
THAT USED BY THIS COURT IN UNDERHILL V. HERNANDEZ, 168 U.S. 250, AND
FROM THIS IT INFERS THAT THESE COURTS RECOGNIZE NO INTERNATIONAL LAW
EXCEPTION TO THE ACT OF STATE DOCTRINE.  THE CASES RELIED ON BY THE
COURT INVOLVED NO INTERNATIONAL LAW ISSUE.  FOR IN THESE CASES THE
PARTY OBJECTING TO THE VALIDITY OF THE FOREIGN ACT WAS A CITIZEN OF THE
FOREIGN STATE.  IT IS SIGNIFICANT THAT COURTS OF BOTH NEW YORK AND
GREAT BRITAIN, IN APPARENTLY THE FIRST CASES IN WHICH AN INTERNATIONAL
LAW ISSUE WAS SQUARELY POSED, RULED THAT THE ACT OF STATE DOCTRINE WAS
NO BAR TO EXAMINATION OF THE VALIDITY OF THE FOREIGN ACT.  ANGLO
IRANIAN OIL CO. V. JAFFRATE, (1953) INT'L L. REP. 316 (ADEN SUP. CT.):
"THE IRANIAN LAWS OF 1951 WERE INVALID BY INTERNATIONAL LAW, FOR, BY
THEM, THE PROPERTY OF THE COMPANY WAS EXPROPRIATED WITHOUT ANY
COMPENSATION."  SULYOK V. PENZINTEZETI KOZPONT BUDAPEST, 279 APP. DIV.
528, 111 N.Y.S.2D 75, AFF'D, 304 N.Y. 704, 107 N.E.2D 604 (FOREIGN
EXPROPRIATION OF INTANGIBLE PROPERTY DENIED EFFECT AS CONTRARY TO NEW
YORK PUBLIC POLICY). 

FN2  IN ONE OF THE EARLIEST DECISIONS OF THIS COURT EVEN ARGUABLY
INVOKING THE ACT OF STATE DOCTRINE, HUDSON V. GUESTIER, 4 CRANCH 293,
CHIEF JUSTICE MARSHALL HELD THAT THE VALIDITY OF A SEIZURE BY A FOREIGN
POWER OF A VESSEL WITHIN THE JURISDICTION OF THE SENTENCING COURT COULD
NOT BE REVIEWED "UNLESS THE COURT PASSING THE SENTENCE LOSES ITS
JURISDICTION BY SOME CIRCUMSTANCE WHICH THE LAW OF NATIONS CAN
NOTICE."  UNDERHILL V. HERNANDEZ, 168 U.S. 250, WHERE THE COURT STATED
THE ACT OF STATE DOCTRINE IN ITS OFT-QUOTED FORM, WAS A SUIT IN TORT BY
AN AMERICAN CITIZEN AGAINST AN OFFICER OF THE VENEZUELAN GOVERNMENT FOR
AN UNLAWFUL DETENTION AND COMPELLED OPERATION OF THE PLAINTIFF'S WATER
FACILITIES DURING THE COURSE OF A REVOLUTION IN THAT COUNTRY.  WELL
ESTABLISHED PRINCIPLES OF IMMUNITY PRECLUDED THE PLAINTIFF'S SUIT, AND
THIS WAS ONE OF THE GROUNDS FOR DISMISSAL.  HOWEVER, AS NOTED ABOVE,
THE COURT DID INVOKE THE ACT OF STATE DOCTRINE IN DISMISSING THE SUIT
AND ARGUABLY THE FORCED DETENTION OF A FOREIGN CITIZEN POSED A CLAIM
COGNIZABLE UNDER INTERNATIONAL LAW.  BUT THE COURT DID NOT IGNORE THIS
POSSIBILITY OF A VIOLATION OF INTERNATIONAL LAW; RATHER IN
DISTINGUISHING CASES INVOLVING ARRESTS BY MILITARY AUTHORITIES IN THE
ABSENCE OF WAR AND THOSE CONCERNING THE RIGHT OF REVOLUTIONARY BODIES
TO INTERFERE WITH COMMERCE, THE COURT PASSED ON THE MERITS OF
PLAINTIFF'S CLAIM UNDER INTERNATIONAL LAW AND DEEMED THE CLAIM WITHOUT
MERIT UNDER THEN EXISTING DOCTRINES.  "ACTS OF LEGITIMATE WARFARE
CANNOT BE MADE THE BASIS OF INDIVIDUAL LIABILITY."  168 U.S., AT 253. 
INDEED THE COURT CITED DOW V. JOHNSON, 100 U.S. 158, A SUIT ARISING
FROM SEIZURES BY AMERICAN OFFICERS IN THE SOUTH DURING THE CIVIL WAR,
IN WHICH IT WAS HELD WITHOUT ANY RELIANCE ON THE ACT OF STATE DOCTRINE
THAT THE LAW OF NATIONS PRECLUDED MAKING ACTS OF LEGITIMATE WARFARE A
BASIS FOR LIABILITY AFTER THE CESSATION OF HOSTILITIES, AND FORD V.
SURGET, 97 U.S. 594, WHICH HELD AN OFFICER OF THE CONFEDERACY IMMUNE
FROM DAMAGES FOR THE DESTRUCTION OF PROPERTY DURING THE WAR.  AMERICAN
BANANA CO. V. UNITED FRUIT CO., 213 U.S. 347, A CASE OFTEN INVOKED FOR
THE BLANKET PROHIBITION OF THE ACT OF STATE DOCTRINE, HELD ONLY THAT
THE ANTITRUST LAWS DID NOT EXTEND TO ACTS COMMITTED BY A PRIVATE
INDIVIDUAL IN A FOREIGN COUNTRY WITH THE ASSISTANCE OF A FOREIGN
GOVERNMENT.  MOST OF THE LANGUAGE IN THAT CASE IS IN RESPONSE TO THE
ISSUE OF HOW FAR LEGISLATIVE JURISDICTION SHOULD BE PRESUMED TO EXTEND
IN THE ABSENCE OF AN EXPRESS DECLARATION.  THE COURT HELD THAT THE
ORDINARY UNDERSTANDINGS OF SOVEREIGNTY WARRANTED THE PROPOSITION THAT
CONDUCT OF AN AMERICAN CITIZEN SHOULD ORDINARILY BE ADJUDGED UNDER THE
LAW WHERE THE ACTS OCCURRED.  RATHER THAN IGNORING INTERNATIONAL LAW,
THE LAW OF NATIONS WAS RELIED ON FOR THIS RULE OF STATUTORY
CONSTRUCTION. 

MORE DIRECTLY IN POINT ARE THE MEXICAN SEIZURES PASSED UPON IN OETJEN
V. CENTRAL LEATHER CO., 246 U.S. 297, AND RICAUD V. AMERICAN METAL CO.,
246 U.S. 304.  IN OETJEN THE PLAINTIFF CLAIMED TITLE FROM A MEXICAN
OWNER WHO WAS DIVESTED OF HIS PROPERTY DURING THE MEXICAN REVOLUTION. 
THE TERMS OF THE EXPROPRIATION ARE NOT CLEAR, BUT IT APPEARS THAT A
PROMISE OF COMPENSATION WAS MADE BY THE REVOLUTIONARY GOVERNMENT AND
THAT THE PROPERTY WAS TO BE USED FOR THE WAR EFFORT.  THE ONLY
INTERNATIONAL LAW ISSUE ARGUABLY PRESENT IN THE CASE WAS BY VIRTUE OF A
TREATY OF THE HAGUE CONVENTION, TO WHICH BOTH MEXICO AND THE UNITED
STATES WERE SIGNATORIES, GOVERNING CUSTOMS OF WAR ON LAND; ALTHOUGH THE
COURT DID NOT REST THE DECISION ON THE TREATY, IT TOOK CARE TO POINT
OUT THAT THIS SEIZURE WAS PROBABLY LAWFUL UNDER THE TREATY AS A
COMPELLED CONTRIBUTION IN TIME OF WAR FOR THE NEEDS OF THE OCCUPYING
ARMY.  MOREOVER, THE COURT STRESSED THE FACT THAT THE TITLE CHALLENGED
WAS DERIVED FROM A MEXICAN LAW GOVERNING THE RELATIONS BETWEEN THE
MEXICAN GOVERNMENT AND MEXICAN CITIZENS.  ASIDE FROM THE CITIZENSHIP OF
THE PLAINTIFF'S PREDECESSOR IN TITLE, THE PROPERTY SEIZED WAS TO
SATISFY AN ASSESSMENT OF THE REVOLUTIONARY GOVERNMENT WHICH THE MEXICAN
OWNER HAD FAILED TO PAY.  IT IS DOUBTFUL THAT THIS MEASURE, EVEN AS
APPLIED TO NON-MEXICANS, WOULD CONSTITUTE A VIOLATION OF INTERNATIONAL
LAW.  DOW V. JOHNSON, SUPRA.  IN RICAUD THE TITLEHOLDER WAS AN AMERICAN
AND THE COURT DEEMED THIS DIFFERENCE IRRELEVANT "FOR THE REASONS GIVEN"
IN OETJEN.  IN RICAUD THERE WAS A PROMISE TO PAY FOR THE PROPERTY
SEIZED DURING THE REVOLUTION UPON THE CESSATION OF HOSTILITIES AND THE
SEIZURE WAS TO MEET EXIGENCIES CREATED BY THE REVOLUTION, WHICH WAS
PERMISSIBLE UNDER THE PROVISIONS OF THE HAGUE CONVENTION CONSIDERED IN
OETJEN.  THIS DECLARATION OF LEGALITY IN THE HAGUE CONVENTION, AND THE
INTERNATIONAL RULES OF WAR ON SEIZURES, RENDERED THE ALLEGATION OF AN
INTERNATIONAL LAW VIOLATION IN RICAUD SUFFICIENTLY FRIVOLOUS SO THAT
CONSIDERATION ON THE MERITS WAS UNNECESSARY.  THE SOLE QUESTION
PRESENTED IN SHAPLEIGH V. MIER, 299 U.S. 468, CONCERNED THE LEGALITY OF
CERTAIN ACTION UNDER MEXICAN LAW, AND THE PARTIES EXPRESSLY DECLINED TO
PRESS THE QUESTION OF LEGALITY UNDER INTERNATIONAL LAW.  AND THE
COURT'S LANGUAGE IN THAT CASE - "FOR WRONGS OF THAT ORDER THE REMEDY TO
BE FOLLOWED IS ALONG THE CHANNELS OF DIPLOMACY" - MUST BE READ AGAINST
THE BACKGROUND OF AN ARBITRAL CLAIMS COMMISSION THAT HAD BEEN SET UP TO
DETERMINE COMPENSATION FOR CLAIMANTS IN THE POSITION OF SHAPLEIGH, THE
EXISTENCE OF WHICH THE COURT WAS WELL AWARE.  "A TRIBUNAL IS IN
EXISTENCE, THE INTERNATIONAL CLAIMS COMMISSION, ESTABLISHED BY
CONVENTION BETWEEN THE UNITED STATES AND MEXICO, TO WHICH THE
PLAINTIFFS ARE AT LIBERTY TO SUBMIT AND HAVE LONG AGO SUBMITTED A CLAIM
FOR REPARATION."  299 U.S., AT 471. 

IN THE OTHER CASES CITED IN THE COURT'S OPINION, ANTE, PP. 416-417,
THE ACT OF STATE DOCTRINE WAS NOT EVEN PERIPHERALLY INVOLVED; THE LAW
APPLICABLE IN BOTH UNITED STATES V. BELMONT, 301 U.S. 324, AND UNITED
STATES V. PINK, 315 U.S. 203, WAS A COMPACT BETWEEN THE UNITED STATES
AND RUSSIA REGARDING THE EFFECT OF RUSSIAN NATIONALIZATION DECREES ON
PROPERTY LOCATED IN THE UNITED STATES.  NO ONE SERIOUSLY ARGUED THAT
THE ACT OF STATE DOCTRINE PRECLUDES RELIANCE ON A BINATIONAL COMPACT
DEALING WITH THE EFFECT TO BE AFFORDED OR DENIED A FOREIGN ACT OF
STATE. 

FN3  AN ACT OF STATE HAS BEEN SAID TO BE ANY GOVERNMENTAL ACT IN
WHICH THE SOVEREIGN'S INTEREST QUA SOVEREIGN IS INVOLVED.  "THE
EXPRESSION 'ACT OF STATE' USUALLY DENOTES 'AN EXECUTIVE OR
ADMINISTRATIVE EXERCISE OF SOVEREIGN POWER BY AN INDEPENDENT STATE OR
POTENTATE, OR BY ITS OR HIS DULY AUTHORIZED AGENTS OR OFFICERS.'  THE
EXPRESSION, HOWEVER, IS NOT A TERM OF ART, AND IT OBVIOUSLY MAY, AND IS
IN FACT OFTEN INTENDED TO, INCLUDE LEGISLATIVE AND JUDICIAL ACTS SUCH
AS A STATUTE, DECREE OR ORDER, OR A JUDGMENT OF A SUPERIOR COURT." 
MANN, THE SACROSANCTITY OF THE FOREIGN ACT OF STATE, 59 L.Q. REV. 42
(1943). 

FN4  IV RABEL, THE CONFLICT OF LAWS:  A COMPARATIVE STUDY, 30-69
(1958); EHRENZWEIG, CONFLICT OF LAWS, 607-633 (1962); REST.  (2D ED.) 
CONFLICT OF LAWS, SEC. 254A (TENT.  DRAFT NO. 5 (1959)); BAADE,
INDONESIAN NATIONALIZATION MEASURES BEFORE FOREIGN COURTS - A REPLY, 54
AM. J. INT'L L. 801 (1960); RE, FOREIGN CONFISCATIONS IN ANGLO-AMERICAN
LAW - A STUDY OF THE "RULE OF DECISION" PRINCIPLE, 49-50 (1951). 

FN5  SEE GENERALLY, KAPLAN AND KATZENBACH, THE POLITICAL FOUNDATIONS
OF INTERNATIONAL LAW, 135-172 (1961); HERZ, INTERNATIONAL POLITICS IN
THE ATOMIC AGE, 58-62 (1959). 

FN6  ANGLO-IRANIAN OIL CO. V. IDEMITSU KOSAN KABUSHIKI KAISHA, (1953)
INT'L L. REP.  305 (DIST. CT. OF TOKYO), AFF'D, (1953) INT'L L. REP.
312 (HIGH CT. OF TOKYO); ANGLO-IRANIAN OIL CO. V. S.U.P.O.R. CO.,
(1955) INT'L L. REP. 19 (CT. OF VENICE (1953)); ANGLO-IRANIAN OIL CO.
V. S.U.P.O.R. CO., (1955) INT'L L. REP. 23, 39-43 (CIV. CT. OF ROME);
COMPARE N.V. VERENIGDE DELI-MAATSCHAPIJEN V. DEUTSCH-INDONESISCHE TABAK
HANDELSGESELLSCHAFT M.B.H. (BREMEN CT. APP.), EXCERPTS REPRINTED IN
DOMKE, INDONESIAN NATIONALIZATION MEASURES BEFORE FOREIGN COURTS, 54
AM. J. INT'L L. 305, 313-314 (1960), WITH CONFISCATION OF PROPERTY OF
SUDETEN GERMANS CASE, (1948) ANN. DIG.  24, 25 (NO. 12)(AMTSGERICHT OF
DINGOLFING) (DISCRIMINATORY CONFISCATORY DECREES).  SEE ALSO WEST RAND
CENTRAL GOLD MINING CO. V. THE KING, (1905) 2 K.B. 391. 

FN7  MOSCOW FIRE INS. CO. V. BANK OF NEW YORK, 280 N.Y. 286, 20
N.E.2D 758 (1939), AFF'D SUB NOM, UNITED STATES V. MOSCOW FIRE INS.
CO., 309 U.S. 624; VLADIKAVKAZSKY R. CO. V. NEW YORK TRUST CO., 263
N.Y. 369, 189 N.E. 456; PLESCH V. BANQUE NATIONALE DE LA REPUBLIQUE
D'HAITI, 273 APP. DIV. 224, 77 N.Y.S.2D 43, AFF'D, 298 N.Y. 573, 81
N.E.2D 106; BOLLACK V. SOCIETE GENERALE, 263 APP. DIV. 601, 33 N.Y.S.2D
986; LATVIAN STATE CARGO & PASSENGER S.S. LINE V. MCGRATH, 88 U.S. APP.
D.C. 226, 188 F.2D 1000. 

FN8  SECOND RUSSIAN INS. CO. V. MILLER, 297 F. 404 (C.A.2D CIR.);
JAMES & CO. V. SECOND RUSSIAN INS. CO., 239 N.Y. 248, 146 N.E. 369;
SOKOLOFF V. NATIONAL CITY BANK, 239 N.Y.  158, 145 N.E. 917; A/S
MERILAID & CO. V. CHASE NAT'L BANK, 189 MISC. 285, 71 N.Y.S.2D 377
(SUP. CT. N.Y.).  SEE ALSO COMPANIA RON BACARDI V. BANK OF NOVA SCOTIA,
193 F. SUPP. 814 (D.C.S.D.N.Y.)(NORMAL CONFLICT OF LAWS RULE SUPERSEDED
BY A NATIONAL POLICY AGAINST RECOGNITION OF CUBAN CONFISCATORY
DECREES). 

SIMILARLY, IT HAS BEEN HELD THAT NATIONALIZATION OF SHARES OF A
FOREIGN CORPORATION OR PARTNERSHIP OWNING PROPERTY IN THE UNITED STATES
WILL NOT AFFECT THE TITLE OF FORMER SHAREHOLDERS OR PARTNERS; THE PRIOR
OWNERS ARE DEEMED TO RETAIN THEIR EQUITABLY RIGHTS IN ASSETS LOCATED IN
THE UNITED STATES.   VLADIKAVKAZSKY R. CO. V. NEW YORK TRUST CO., 263
N.Y. 369, 189 N.E. 456.  THE ACTS OF A BELLIGERENT OCCUPANT OF A
FRIENDLY NATION IN RESPECT TO CONTRACTS MADE WITHIN THE OCCUPIED NATION
HAVE BEEN DENIED APPLICATION IN OUR COURTS.  ABOITIZ & CO. V. PRICE, 99
F. SUPP. 602 (D.C. UTAH).  COMPARE WERFEL V. ZIVNOSTENSKA BANKA, 260
APP. DIV. 747, 752, 23 N.Y.S.2D 1001, 1005. 

FN9  SEE THE RECENT AFFIRMATION OF THIS DOCTRINE IN BANCO DO BRASIL,
S.A., V. ISRAEL COMMODITY CO., HOLDING THAT AN ACTION BY BRAZIL AGAINST
A NEW YORK COFFEE IMPORTER FOR FRAUDULENTLY CIRCUMVENTING BRAZILIAN
FOREIGN EXCHANGE REGULATIONS BY FORGING DOCUMENTS IN NEW YORK WAS
CONTRARY TO NEW YORK PUBLIC POLICY, NOTWITHSTANDING THAT THE BRETTON
WOODS AGREEMENT, TO WHICH BOTH THE UNITED STATES AND BRAZIL ARE
PARTIES, EXPRESSES A POLICY FAVORABLE TO SUCH EXCHANGE LAWS.  12 N.Y.2D
371, 190 N.E.2D 235, CERT. DENIED, 376 U.S. 906.  SEE ALSO THE
ANTELOPE, 10 WHEAT.  66, 123; HUNTINGTON V. ATTRILL, 146 U.S. 657;
MOORE V. MITCHELL, 30 F.2D 600, AFF'D ON OTHER GROUNDS, 281 U.S. 18;
DICEY, CONFLICT OF LAWS (MORRIS ED., 7TH ED. 1958), 667; WOLFF, PRIVATE
INTERNATIONAL LAW (2D ED. 1950), 525. 

FN10  HILTON V. GUYOT, 159 U.S. 113 (LACK OF RECIPROCITY IN THE
FOREIGN STATE RENDERS THE JUDGMENT ONLY PRIMA FACIE EVIDENCE OF THE
JUSTICE OF THE PLAINTIFF'S CLAIM); CF.  VENEZUELAN MEAT EXPORT CO. V.
UNITED STATES, 12 F. SUPP. 379 (D.C.D. MD.); THE W. TALBOT DODGE, 15
F.2D 459 (D.C.S.D.N.Y.)  (FRAUD IS A DEFENSE TO THE ENFORCEMENT OF
FOREIGN JUDGMENTS); TITLE INS. & TRUST CO. V. CALIFORNIA DEVELOPMENT
CO., 171 CAL. 173, 152 P. 542 (FRAUD); BANCO MINERO V. ROSS, 106 TEX.
522, 172 S.W. 711 (PROCEDURE OF MEXICAN COURT OFFENSIVE TO NATURAL
JUSTICE); DE BRIMONT V. PENNIMAN, 7 FED. CAS. 309, NO. 3,715
(C.C.S.D.N.Y.)(JUDGMENT FOUNDED ON A CAUSE OF ACTION CONTRARY TO THE
"POLICY OF OUR LAW, AND DOES VIOLENCE TO WHAT WE DEEM THE RIGHTS OF OUR
OWN CITIZEN") OTHER CASES INDICATE THAT AMERICAN COURTS WILL REFUSE
ENFORCEMENT WHERE PROTECTION OF AMERICAN CITIZENS OR INSTITUTIONS
REQUIRES RE-EXAMINATION.  WILLIAMS V. ARMROYD, 7 CRANCH 423; MACDONALD
V. GRAND TRUNK R. CO., 71 N.H. 448, 52 A. 982; CARUSO V. CARUSO, 106
N.J. EQ. 130, 148 A. 882; HOHNER V. GRATZ, 50 F. 369
(C.C.S.D.N.Y.)(ALTERNATIVE HOLDING).  SEE GENERALLY REESE, THE STATUS
IN THIS COUNTRY OF JUDGMENTS RENDERED ABORAD, 50 COL. L. REV. 783
(1950). 

FN11  THE COURT ATTEMPTS TO DISTINGUISH BETWEEN THESE FOREIGN ACTS ON
THE GROUND THAT ALL FOREIGN PENAL AND REVENUE AND PERHAPS OTHER PUBLIC
LAWS ARE IRREBUTTABLY PRESUMED INVALID TO AVOID THE EMBARRASSMENT
STEMMING FROM EXAMINATION OF SOME ACTS AND THAT ALL FOREIGN
EXPROPRIATIONS ARE PRESUMED VALID FOR THE SAME REASON.  THIS
DISTINCTION FAILS TO EXPLAIN WHY IT MAY BE MORE EMBARRASSING TO REFUSE
RECOGNITION TO AN EXTRATERRITORIAL CONFISCATORY LAW DIRECTED AT
NATIONALS OF THE CONFISCATING STATE THAN IT WOULD BE TO REFUSE EFFECT
TO A TERRITORIAL CONFISCATORY LAW.  FROM THE VIEWPOINT OF THE
CONFISCATING STATE, THE NEED TO AFFECT PROPERTY BEYOND ITS BORDERS MAY
BE AS SIGNIFICANT AS THE NEED TO TAKE TITLE TO PROPERTY WITHIN ITS
BORDERS.  AND IT WOULD APPEAR MORE OFFENSIVE TO NOTIONS OF SOVEREIGNTY
FOR AN AMERICAN COURT TO DENY ENFORCEMENT OF A FOREIGN LAW BECAUSE IT
IS DEEMED CONTRARY TO JUSTICE, MORALS, OR PUBLIC POLICY, THAN TO DENY
ENFORCEMENT BECAUSE OF PRINCIPLES OF INTERNATIONAL LAW.  IT WILL NOT DO
TO SAY THAT THE FOREIGN STATE HAS NO JURISDICTION TO AFFECT TITLE TO
PROPERTY BEYOND ITS BORDERS, SINCE OTHER JURISDICTIONAL BASES, SUCH AS
CITIZENSHIP, ARE INVARIABLY PRESENT.  BUT FOR THE POLICY OF THE FORUM
STATE, DOUBTLESS THE FOREIGN LAW WOULD BE GIVEN EFFECT UNDER ORDINARY
CONFLICT OF LAWS PRINCIPLES.  COMPARE SOKOLOFF V. NATIONAL CITY BANK,
239 N.Y. 158, 145 N.E. 917; SECOND RUSSIAN INS. CO. V. MILLER, 297 F.
404 (C.A.2D CIR.) WITH WERFEL V. ZIVNOSTENSKA BANKA, 260 APP. DIV. 747,
23 N.Y.S.2D 1001. 

THE REFUSAL TO ENFORCE FOREIGN PENAL AND TAX LAWS AND FOREIGN
JUDGMENTS IS WHOLLY AT ODDS WITH THE PRESUMPTION OF VALIDITY AND
REQUIREMENT OF ENFORCEMENT UNDER THE ACT OF STATE DOCTRINE; THE
POLITICAL REALMS OF THE ACTING COUNTRY ARE CLEARLY INVOLVED, THE
ENACTING COUNTRY HAS A LARGE STAKE IN THE DECISION, AND WHEN
ENFORCEMENT IS AGAINST NATIONALS OF THE ENACTING COUNTRY,
JURISDICTIONAL BASES ARE CLEARLY PRESENT.  MOREOVER, IT IS DIFFICULT,
CONCEPTUALLY OR OTHERWISE, TO DISTINGUISH BETWEEN THE SITUATION WHERE A
TAX JUDGMENT SECURED IN A FOREIGN COUNTRY AGAINST ONE WHO IS IN THE
COUNTRY AT THE TIME OF JUDGMENT IS PRESENTED TO AN AMERICAN COURT AND
THE SITUATION WHERE A CONFISCATORY DECREE IS SOUGHT TO BE ENFORCED IN
AMERICAN COURTS. 

FN12  FOR THE EXTENT TO WHICH THE FRAMERS CONTEMPLATED THE
APPLICATION OF INTERNATIONAL LAW IN AMERICAN COURTS AND THEIR CONCERN
THAT THIS BODY OF LAW BE ADMINISTERED UNIFORMLY IN THE FEDERAL COURTS,
SEE THE FEDERALIST; NO. 3, AT 22, BY JOHN JAY (BOURNE ED. 1947, BOOK
I); NO. 80, AT 112 AND 114; NO. 83, AT 144, AND NO. 82, BY ALEXANDER
HAMILTON (BOURNE ED. 1947, BOOK II); NO. 42, BY JAMES MADISON (BOURNE
ED. 1947, BOOK I). 

THOMAS JEFFERSON, SPEAKING AS SECRETARY OF STATE, WROTE TO M. GENET,
FRENCH MINISTER, IN 1793: "THE LAW OF NATIONS MAKES AN INTEGRAL PART
...  OF THE LAWS OF THE LAND."  I MOORE, DIGEST OF INTERNATIONAL LAW
(1906), 10.  AND SEE THE OPINION OF ATTORNEY GENERAL RANDOLPH GIVEN IN
1792:  "THE LAW OF NATIONS, ALTHOUGH NOT SPECIALLY ADOPTED BY THE
CONSTITUTION OR ANY MUNICIPAL ACT, IS ESSENTIALLY A PART OF THE LAW OF
THE LAND."  1 OP.  ATTY. GEN. 27.  ALSO SEE WARREN, THE MAKING OF THE
CONSTITUTION, PT. II, C. I, AT 116; MADISON'S NOTES IN 1 FARRAND 21,
22, 244, 316.  SEE GENERALLY DICKINSON, THE LAW OF NATIONS AS PART OF
THE NATIONAL LAW OF THE UNITED STATES, 101 U. OF PA. L. REV. 26
(1952). 

FN13  THIS INTENTION WAS REFLECTED AND IMPLEMENTED IN THE ARTICLES
OF THE CONSTITUTION.  ARICLE I, SEC. 8, EMPOWERS THE CONGRESS "TO
DEFINE AND PUNISH PIRACIES AND FELONIES COMMITTED ON THE HIGH SEAS, AND
OFFENCES AGAINST THE LAW OF NATIONS."  ARTICLE III, SEC. 2, EXTENDS THE
JUDICIAL POWER "TO ALL CASES, IN LAW AND EQUIPTY, ARISING UNDER THIS
CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES MADE, OR
WHICH SHALL BE MADE, UNDER THEIR AUTHORITY; - TO ALL CASES AFFECTING
AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS; - TO ALL CASES OF
ADMIRALTY AND MARITIME JURISDICTION; - TO CONTROVERSIES TO WHICH THE
UNITED STATES SHALL BE A PARTY; - TO CONTROVERSIES BETWEEN TWO OR MORE
STATES; - BETWEEN A STATE AND CITIZENS OF ANOTHER STATE; - BETWEEN
CITIZENS OF DIFFERENT STATES; - BETWEEN CITIZENS OF THE SAME STATE
CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES, AND BETWEEN A STATE,
OR THE CITIZENS THEREOF, AND FOREIGN STATES, CITIZENS OR SUBJECTS." 
FN14  AS EARLY AS 1793, CHIEF JUSTICE JAY STATED IN CHISHOLM V. GEORGIA
THAT "PRIOR  ...  TO THAT PERIOD (THE DATE OF THE CONSTITUTION), THE
UNITED STATES HAD, BY TAKING A PLACE AMONG THE NATIONS OF THE EARTH,
BECOME AMENABLE TO THE LAW OF NATIONS."  2 DALL.  419, AT 474.  AND IN
1796, JUSTICE WILSON STATED IN WARE V. HYLTON:  "WHEN THE UNITED STATES
DECLARED THEIR INDEPENDENCE, THEY WERE BOUND TO RECEIVE THE LAW OF
NATIONS, IN ITS MODERN STATE OF PURITY AND REFINEMENT."  3 DALL.  199,
AT 281.  CHIEF JUSTICE MARSHALL WAS EVEN MORE EXPLICIT IN THE NEREIDE,
WHEN HE SAID: 

"IF IT BE THE WILL OF THE GOVERNMENT TO APPLY TO SPAIN ANY RULE
RESPECTING CAPTURES WHICH SPAIN IS SUPPOSED TO APPLY TO US, THE
GOVERNMENT WILL MANIFEST THAT WILL BY PASSING AN ACT FOR THE PURPOSE. 
TILL SUCH AN ACT BE PASSED, THE COURT IS BOUND BY THE LAW OF NATIONS
WHICH IS A PART OF THE LAW OF THE LAND."  9 CRANCH 388, AT 423. 

AS TO THE EFFECT SUCH AN ACT OF CONGRESS WOULD HAVE ON INTERNATIONAL
LAW, THE COURT HAS RULED THAT AN ACT OF CONGRESS OUGHT NEVER TO BE
CONSTRUED TO VIOLATE THE LAW OF NATIONS IF ANY OTHER POSSIBLE
CONSTRUCTION REMAINS.  MACLEOD V. UNITED STATES, 229 U.S. 416, 434
(1913). 

AS WAS WELL STATED IN HILTON V. GUYOT: 

"INTERNATIONAL LAW, IN ITS WIDEST AND MOST COMPREHENSIVE SENSE -
INCLUDING NOT ONLY QUESTIONS OF RIGHT BETWEEN NATIONS, GOVERNED BY WHAT
HAS BEEN APPROPRIATELY CALLED THE LAW OF NATIONS; BUT ALSO QUESTIONS
ARISING UNDER WHAT IS USUALLY CALLED PRIVATE INTERNATIONAL LAW, OR THE
CONFLICT OF LAWS, AND CONCERNING THE RIGHTS OF PERSONS WITHIN THE
TERRITORY AND DOMINION OF ONE NATION, BY REASON OF ACTS, PRIVATE OR
PUBLIC, DONE WITHIN THE DOMINIONS OF ANOTHER NATION - IS PART OF OUR
LAW, AND MUST BE ASCERTAINED AND ADMINISTERED BY THE COURTS OF JUSTICE,
AS OFTEN AS SUCH QUESTIONS ARE PRESENTED IN LITIGATION BETWEEN MAN AND
MAN, DULY SUBMITTED TO THEIR DETERMINATION. 

"THE MOST CERTAIN GUIDE, NO DOUBT, FOR THE DECISION OF SUCH QUESTIONS
IS A TREATY OR A STATUTE OF THIS COUNTRY.  BUT WHEN, AS IS THE CASE
HERE, THERE IS NO WRITTEN LAW UPON THE SUBJECT, THE DUTY STILL RESTS
UPON THE JUDICIAL TRIBUNALS OF ASCERTAINING AND DECLARING WHAT THE LAW
IS, WHENEVER IT BECOMES NECESSARY TO DO SO, IN ORDER TO DETERMINE THE
RIGHTS OF PARTIES TO SUITS REGULARLY BROUGHT BEFORE THEM.  IN DOING
THIS, THE COURTS MUST OBTAIN SUCH AID AS THEY CAN FROM JUDICIAL
DECISIONS, FROM THE WORKS OF JURISTS AND COMMENTATORS, AND FROM THE
ACTS AND USAGES OF CIVILIZED NATIONS."  159 U.S. 113, 163 (1895). 

FOR OTHER CASES WHICH EXPLICITLY INVOKE THE PRINCIPLE THAT
INTERNATIONAL LAW IS A PART OF THE LAW OF THE LAND, SEE, FOR EXAMPLE:
TALBOT V. JANSON, 3 DALL.  133, 161; RESPUBLICA V. DE LONGCHAMPS, 1
DALL.  111, 116; THE RAPID, 8 CRANCH 155, 162; FREMONT V. UNITED
STATES, 17 HOW.  542, 557; UNITED STATES V. ARJONA, 120 U.S. 479. 

FN15  AMONG OTHERS, INTERNATIONAL LAW HAS BEEN RELIED UPON IN CASES
CONCERNING THE ACQUISITION AND CONTROL OF TERRITORY, JONES V. UNITED
STATES, 137 U.S. 202; MORMON CHURCH V. UNITED STATES, 136 U.S. 1; DORR
V. UNITED STATES, 195 U.S. 138; THE RESOLUTION OF BOUNDARY DISPUTES,
IOWA V. ILLINOIS, 147 U.S. 1; ARKANSAS V. TENNESSEE, 246 U.S. 158;
QUESTIONS OF NATIONALITY, UNITED STATES V. WONG KIM ARK, 169 U.S. 649;
INGLIS V. THE TRUSTEES OF THE SAILOR'S SNUG HARBOUR, 3 PET. 99;
PRINCIPLES OF WAR AND NEUTRALITY AND THEIR EFFECT ON PRIVATE RIGHTS,
THE STEAMSHIP APPAM, 243 U.S. 124; DOW V. JOHNSON, 100 U.S. 158; FORD
V. SURGET, 97 U.S. 594; AND PRIVATE PROPERTY RIGHTS GENERALLY, THE
SCHOONER EXCHANGE V. MCFADDON, 7 CRANCH 116; UNITED STATES V.
PERCHEMAN, 7 PET. 51. 

FN16  "DISCRIMINATORY LAWS ENACTED OUT OF HATRED, AGAINST ALIENS OR
AGAINST PERSONS OF ANY PARTICULAR RACE OR CATEGORY OR AGAINST PERSONS
BELONGING TO SPECIFIED SOCIAL OR POLITICAL GROUPS ...  RUN COUNTER TO
THE INTERNATIONALLY ACCEPTED PRINCIPLE OF THE EQUALITY OF INDIVIDUALS
BEFORE THE LAW."  ANGLO-IRANIAN OIL CO. V. S.U.P.O.R. CO., (1955) INT'L
L. REP. 23, 40 (CIV. CT. OF ROME); SEE ALSO FRIEDMAN, EXPROPRIATION IN
INTERNATIONAL LAW (1953), 189-192; WORTLEY, EXPROPRIATION IN PUBLIC
INTERNATIONAL LAW, 120-121 (1959); CHENG, THE RATIONALE OF COMPENSATION
FOR EXPROPRIATION, 44 GROTIUS SOCIETY 267, 281, 289 (1959); SEIDL
HOHENVELDERN, TITLE TO CONFISCATED FOREIGN PROPERTY AND PUBLIC
INTERNATIONAL LAW, 56 AM. J. INT'L L. 507, 509-510 (1962). 

FN17  IN THE ONLY REFERENCE IN THE COURT'S OPINION TO FAIRNESS
BETWEEN THE LITIGANTS, AND A COURT'S OBLIGATION TO RESOLVE DISPUTES
JUSTLY, ANTE, P. 435, THE COURT QUICKLY DISPOSES OF THIS CONSIDERATION
BY ASSUMING THAT THE TYPICAL ACT OF STATE CASE IS BETWEEN AN ORIGINAL
OWNER AND AN "INNOCENT" PURCHASER, SO THAT IT IS NOT UNJUST TO LEAVE
THE PURCHASER'S TITLE UNDISTURBED BY APPLYING THE ACT OF STATE
DOCTRINE.  BESIDE THE OBVIOUS FACT THAT THIS ASSUMPTION IS WHOLLY
INAPPLICABLE TO THE CASE WHERE THE FOREIGN SOVEREIGN ITSELF OR ITS
AGENT SEEKS TO HAVE ITS TITLE VALIDATED IN OUR COURTS - THE CASE AT BAR
- IT IS FAR FROM APPARENT THAT MOST CASES REPRESENT SUITS BETWEEN THE
ORIGINAL OWNER AND AN INNOCENT PURCHASER.  THE "INNOCENCE" OF A
PURCHASER WHO BUYS GOODS FROM A GOVERNMENT WITH KNOWLEDGE THAT
POSSESSION OR APPARENT TITLE WAS DERIVED FROM AN ACT PATENTLY IN
VIOLATION OF INTERNATIONAL LAW IS HIGHLY QUESTIONABLE.  MORE
FUNDAMENTALLY, DOCTRINES OF COMMERCIAL LAW DESIGNED TO PROTECT THE
TITLE OF A BONA FIDE PURCHASER CAN SERVE TO RESOLVE THIS QUESTION
WITHOUT RELIANCE UPON A BROAD IRREBUTTABLE PRESUMPTION OF VALIDITY. 

FN18  ANOTHER SITUATION WAS ALSO PRESENTED BY THE NAZI DECREES
CHALLENGED IN THE BERNSTEIN LITIGATION; THESE RACIAL AND RELIGIOUS
EXPROPRIATIONS, WHILE INVOLVING NATIONALS OF THE FOREIGN STATE AND
THEREFORE CUSTOMARILY NOT COGNIZABLE UNDER INTERNATIONAL LAW, HAD BEEN
CONDEMNED IN MULTINATIONAL AGREEMENTS AND DECLARATIONS AS CRIMES
AGAINST HUMANITY.  THE ACTS COULD THUS BE MEASURED IN LOCAL COURTS
AGAINST WIDELY HELD PRINCIPLE RATHER THAN JUDGED BY THE PAROCHIAL VIEWS
OF THE FORUM. 

FN19  THE COURT ARGUES THAT AN INTERNATIONAL LAW EXCEPTION TO THE ACT
OF STATE DOCTRINE WOULD FAIL TO DETER VIOLATIONS OF INTERNATIONAL LAW,
SINCE JUDICIAL INTERVENTION WOULD AT BEST BE SPORADIC.  AT THE SAME
TIME, PROCEEDING ON A CONTRADICTORY ASSUMPTION AS TO THE IMPACT OF SUCH
AN EXCEPTION, THE COURT ARGUES THAT THE EXCEPTION WOULD RENDER TITLES
UNDERTAIN AND UPSET THE FLOW OF INTERNATIONAL TRADE.  THE COURT
ATTEMPTS TO RECONCILE THESE CONCLUSIONS BY DISTINGUISHING BETWEEN
"DIRECT" AND "INDIRECT" IMPACTS OF A DECLARATION OF INVALIDITY, AND BY
ASSUMING THAT THE EXPORTING NATION NEED ONLY FIND OTHER BUYERS FOR ITS
PRODUCT AT THE SAME PRICE.  FROM THE POINT OF VIEW OF THE EXPORTING
NATION, THE DISTINCTION BETWEEN INDIRECT AND DIRECT IMPACT IS
MEANINGLESS, AND THE FACILE ASSUMPTION THAT OTHER BUYERS AT THE SAME
PRICE ARE AVAILABLE AND THE FURTHER UNSTATED ASSUMPTION THAT PURCHASE
PRICE IS THE ONLY PERTINENT CONSIDERATION TO THE EXPORTING COUNTRY ARE
BASED ON AN OVERSIMPLIFIED VIEW OF INTERNATIONAL TRADE. 

THERE IS NO EVIDENCE THAT EITHER THE ABSENCE OF AN ACT OF STATE
DOCTRINE IN THE LAW OF NUMEROUS EUROPEAN COUNTRIES OR THE UNCERTAINTY
OF OUR OWN LAW ON THIS QUESTION UNTIL TODAY'S DECISION HAS WORKED HAVOC
WITH TITLES IN INTERNATIONAL COMMERCE OR PRESENTED THE NICE QUESTIONS
THE COURT SETS OUT ON P. 434, N. 39, ANTE, OR HAS SUBSTANTIALLY
AFFECTED THE FLOW OF INTERNATIONAL COMMERCE. 

FN20  THESE ISSUES INCLUDE WHETHER A FOREIGN STATE EXISTS OR IS
RECOGNIZED BY THE UNITED STATES, GELSTON V. HOYT, 3 WHEAT.  246; THE
SAPPHIRE, 11 WALL.  164, 168; THE STATUS THAT A FOREIGN STATE OR ITS
REPRESENTATIVES SHALL HAVE IN THIS COUNTRY (SOVEREIGN IMMUNITY), EX
PARTE MUIR, 254 U.S. 522; EX PARTE PERU, 318 U.S. 578; THE TERRITORIAL
BOUNDARIES OF A FOREIGN STATE, JONES V. UNITED STATES, 137 U.S. 202;
AND THE AUTHORIZATION OF ITS REPRESENTATIVES FOR STATE-TO-STATE
NEGOTIATION, EX PARTE HITZ, 111 U.S. 766; IN RE BAIZ, 135 U.S. 403. 

FN21  "THE GOVERNMENT OF THE UNITED STATES CONSIDERS THIS LAW TO BE
MANIFESTLY IN VIOLATION OF THOSE PRINCIPLES OF INTERNATIONAL LAW WHICH
HAVE LONG BEEN ACCEPTED BY THE FREE COUNTRIES OF THE WEST.  IT IS IN
ITS ESSENCE DISCRIMINATORY, ARBITRARY AND CONFISCATORY."  PRESS RELEASE
NO. 397, DEPT. OF STATE, JULY 16, 1960). 

THE UNITED STATES AMBASSADOR TO CUBA CONDEMNED THIS DECREE, STATING
TO THE CUBAN MINISTRY OF FOREIGN RELATIONS: 

"UNDER INSTRUCTIONS FROM MY GOVERNMENT, I WISH TO EXPRESS TO YOUR
EXCELLENCY THE INDIGNANT PROTEST OF MY GOVERNMENT AGAINST THIS
RESOLUTION AND ITS EFFECTS UPON THE LEGITIMATE RIGHTS WHICH AMERICAN
CITIZENS HAVE ACQUIRED UNDER THE LAWS OF CUBA AND UNDER INTERNATIONAL
LAW."  PRESS RELEASE NO. 441, DEPT. OF STATE, AUG. 9, 1960. 

FN22  THE COURT DISCLAIMS SAYING THAT THERE IS NO GOVERNING
INTERNATIONAL STANDARD IN THIS AREA, BUT ONLY THAT THE MATTER IS NOT
MEET FOR ADJUDICATION.  ANTE, P. 429, N. 26.  BUT SINCE THE COURT'S
VIEW IS THAT THERE ARE ONLY THE DIVERGENT VIEWS OF NATIONS THAT
SUBSCRIBE TO DIFFERENT IDEOLOGIES AND PRACTICAL GOALS ON
"EXPROPRIATIONS," THE MATTER IS NOT MEET FOR ADJUDICATION, ACCORDING TO
THE COURT, BECAUSE OF THE LACK OF ANY AGREEMENT AMONG NATIONS ON
STANDARDS GOVERNING EXPROPRIATIONS, I.E., THERE IS NO INTERNATIONAL LAW
IN THIS AREA, BUT ONLY THE POLITICAL VIEWS OF THE POLITICAL BRANCHES OF
THE VARIOUS NATIONS. 

THESE ASSERTIONS MIGHT FIND MUCH MORE SUPPORT IN THE AUTHORITIES
RELIED ON BY THE COURT AND OTHERS IF THE ISSUE UNDER DISCUSSION WAS NOT
THE UNDEFINED CATEGORY - EXPROPRIATION - BUT THE CLEARLY DISCRETE ISSUE
OF ADEQUATE AND EFFECTIVE COMPENSATION.  IT STRAINS CREDULITY TO ACCEPT
THE PROPOSITION THAT NEWLY EMERGING NATIONS OR THEIR SPOKESMEN DENOUNCE
ALL RULES OF STATE RESPONSIBILITY - REJECT INTERNATIONAL LAW IN REGARD
TO FOREIGN NATIONALS GENERALLY - RATHER THAN REJECT THE TRADITIONAL
RULE OF INTERNATIONAL LAW REQUIRING PROMPT, ADEQUATE, AND EFFECTIVE
COMPENSATION. 

FN23  THERE IS ANOTHER IMPLICATION IN THE COURT'S OPINION:  THE ACT
OF STATE DOCTRINE APPLIES TO ALL EXPROPRIATIONS, NOT ONLY BECAUSE OF
THE LACK OF A CONSENSUS AMONG NATIONS ON ANY STANDARDS BUT BECAUSE THE
ISSUE OF VALIDITY UNDER INTERNATIONAL LAW "TOUCHES ...  THE PRACTICAL
AND IDEOLOGICAL GOALS OF THE VARIOUS MEMBERS OF THE COMMUNITY OF
NATIONS."  IF THIS STATEMENT MEANS SOMETHING OTHER THAN THAT THERE IS
NO AGREEMENT ON INTERNATIONAL STANDARDS GOVERNING EXPROPRIATIONS, IT
MUST MEAN THAT THE DOCTRINE APPLIES BECAUSE THE ISSUE IS IMPORTANT
POLITICALLY TO THE FOREIGN STATE.  IF THIS IS WHAT THE COURT MEANS, THE
ACT OF STATE DOCTRINE HAS BEEN EXPANDED TO UNPRECEDENTED SCOPE.  NO
FOREIGN ACT IS SUBJECT TO CHALLENGE WHERE THE FOREIGN NATION
DEMONSTRATES THAT THE ACT IS IN FURTHERANCE OF ITS PRACTICAL OR
IDEOLOGICAL GOALS.  WHAT FOREIGN ACTS WOULD NOT BE SO CHARACTERIZED? 

FN24  "A REFUSAL OF COURTS TO CONSIDER FOREIGN ACTS OF STATE IN THE
LIGHT OF THE LAW OF NATIONS IS NOT  ...  MERELY A NEUTRAL DOCTRINE OF
ABSTENTION.  ON THE CONTRARY THE EFFECT OF SUCH A DOCTRINE IS TO LEND
THE FULL PROTECTION OF THE UNITED STATES COURTS, POLICE AND
GOVERNMENTAL AGENCIES TO COMMERCIAL PROPERTY TRANSACTIONS WHICH ARE
CONTRARY TO THE MINIMUM STANDARD OF CIVILIZED CONDUCT ...  ."  THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, COMMITTEE ON
INTERNATIONAL LAW, A RECONSIDERATION OF THE ACT OF STATE DOCTRINE IN
UNITED STATES COURTS (1959), 8. 

FN25  THAT EMBARRASSMENT RESULTS FROM A RIGID RULE OF ACT OF STATE
IMMUNITY IS WELL DEMONSTRATED BY THE JUDICIAL ENFORCEMENT OF GERMAN
RACIAL DECREES AFTER THE WAR.  THE PRONOUNCEMENTS BY UNITED STATES
COURTS THAT THESE DECREES VEST TITLE BEYOND QUESTION WAS WHOLLY AT ODDS
WITH THE EXECUTIVE'S OFFICIAL POLICY, EMBODIED IN REPRESENTATIONS TO
OTHER GOVERNMENTS, THAT PROPERTY TAKEN THROUGH RACIAL DECREES BY THE
NAZI GOVERNMENT SHOULD BE RETURNED TO THE ORIGINAL OWNERS AND THUS NOT
BE SUBJECT TO REPARATION CLAIMS.  COMPARE STATEMENTS BY SECRETARY OF
STATE MARSHALL, REPRINTED IN 16 DEPT. STATE BULL.  653, 793 (1947),
WITH BERNSTEIN V. VAN HEYGHEN FRERES SOCIETE ANONYME, 163 F.2D 246
(C.A.2D CIR.).  THIS EMBARRASSING DIVERGENCE OF GOVERNMENTAL OPINION
WAS ELIMINATED ONLY AFTER THE EXECUTIVE INTERVENED AND REQUESTED THE
COURTS TO ADJUDICATE THE MATTER ON THE MERITS.  BERNSTEIN V.
NEDERLANDSCHE-AMERIKAANSCHE STOOMVAART-MAATSCHAPPIJ, 210 F.2D 375
(C.A.2D CIR.). 

FN26  IT IS DIFFICULT TO RECONCILE THE COURT'S STATEMENT THAT RULES
PERTAINING TO EXPROPRIATIONS ARE UNSETTLED OR UNCLEAR WITH THE COURT'S
PRONOUNCED DESIRE TO AVOID MAKING ANY STATEMENTS ON THE PROPER OR
ACCEPTED PRINCIPLES OF INTERNATIONAL LAW, LEST IT EMBARRASS THE
EXECUTIVE, WHO MAY HAVE A DIFFERENT VIEW IN RESPECT TO THIS PARTICULAR
EXPROPRIATION OR THIS PARTICULAR EXPROPRIATING COUNTRY.   IS NOT THE
COURT'S LIMITITION OF THE ACT OF STATE DOCTRINE TO THE AREA OF
EXPROPRIATIONS - BASED UPON THE UNCERTAINTY AND FLUIDITY OF THE
GOVERNING LAW IN THIS AREA - AN ADMISSION THAT MAY PROVE TO BE
EMBARRASSING TO THE EXECUTIVE AT SOME LATER DATE?  AND THE VERY LINE
DRAWING THAT THE COURT STRESSES AS POTENTIALLY DISRUPTIVE OF THE
EXECUTIVE'S CONDUCT OF FOREIGN AFFAIRS IS INEVITABLE UNDER THE COURT'S
APPROACH, SINCE SUBSEQUENT CASES NOT INVOLVING EXPROPRIATIONS WILL
REQUIRE US TO DETERMINE IF THE ACT OF STATE DOCTRINE APPLIES AND THE
COURT'S STANDARD IS THE STRENGTH AND CLARITY OF THE PRINCIPLES OF
INTERNATIONAL LAW THOUGHT TO GOVERN THE ISSUE.  AGAIN OUR VIEW OF THE
CLARITY OF THESE PRINCIPLES AND THE EXTENT TO WHICH THEY ARE REALLY
RULES OF INTERNATIONAL LAW MAY NOT BE IDENTICAL WITH THE VIEWS OF THE
DEPARTMENT OF STATE.  THESE ARE SOME OF THE INHERENT DIFFICULTIES OF
ESTABLISHING A RULE OF LAW ON THE BASIS OF SPECULATIONS ABOUT POSSIBLE
BUT UNIDENTIFIED EMBARRASSMENT TO THE EXECUTIVE AT SOME UNKNOWN AND
UNKNOWABLE FUTURE DATE.    FN27  THE PROCEDURE WAS INSTITUTED AS FAR
BACK AS THE SCHOONER EXCHANGE V. MCFADDON, 7 CRANCH 116 (1812), WHEN A
UNITED STATES ATTORNEY, ON THE INITIATIVE OF THE EXECUTIVE BRANCH,
ENTERED AN APPEARANCE IN A CASE INVOLVING THE IMMUNITY OF A FOREIGN
VESSEL, AND WAS FURTHER DEFINED IN EX PARTE MUIR, 254 U.S. 522, 533
(1921), WHEN THE COURT STATED THAT THE REQUEST BY THE FOREIGN SUITOR TO
THE EXECUTIVE DEPARTMENT WAS AN ACCEPTABLE AND WELL-ESTABLISHED MANNER
OF INTERPOSING A CLAIM OF IMMUNITY.  UNDER THE PROCEDURE OUTLINED IN
MUIR EACH OF THE CONTESTING PARTIES MAY RAISE THE IMMUNITY ISSUE BY
OBTAINING AN OFFICIAL STATEMENT FROM THE STATE DEPARTMENT, OR BY
ENCOURAGING THE EXECUTIVE TO SET FORTH APPROPRIATE SUGGESTIONS TO THE
COURT THROUGH THE ATTORNEY GENERAL.  SEE COMPANIA ESPANOLA DE
NAVEGACION MARITIMA, S.A., V. THE NAVEMAR, 303 U.S. 68, 74.  SEE
GENERALLY DICKINSON, THE LAW OF NATIONS AS NATIONAL LAW:  "POLITICAL
QUESTIONS," 104 U. OF PA.  L. REV. 451, 470-475 (1956). 
..END :










BOIRE, REGIONAL DIRECTOR, TWELFTH REGION, NATIONAL LABOR RELATIONS
BOARD, V. GREYHOUND CORPORATION 376 U.S. 473 


NO. 77.  ARGUED FEBRUARY 17, 1964.  - DECIDED MARCH 23, 1964.  - 309
F.2D 397, REVERSED AND REMANDED. 


THE NATIONAL LABOR RELATIONS BOARD (NLRB) CONCLUDED, AFTER HEARING,
THAT RESPONDENT AND A FIRM UNDER CONTRACT TO CLEAN AND MAINTAIN CERTAIN
BUS TERMINALS WHICH RESPONDENT OPERATED WERE JOINT EMPLOYERS OF BUS
TERMINAL MAINTENANCE EMPLOYEES WHO CONSTITUTED AN APPROPRIATE UNIT IN
WHICH TO HOLD A REPRESENTATION ELECTION PURSUANT TO SEC. 9(C) OF THE
NATIONAL LABOR RELATIONS ACT.  THE NLRB ORDERED AN ELECTION BUT
RESPONDENT FILED SUIT TO SET ASIDE THE BOARD'S DECISION AND ENJOIN THE
ELECTION.  CONCLUDING THAT THE NLRB'S FINDINGS WERE LEGALLY
INSUFFICIENT TO ESTABLISH A JOINT EMPLOYER RELATIONSHIP AND THAT THE
NLRB HAD EXCEEDED ITS POWERS, THE DISTRICT COURT GRANTED THE INJUNCTION
AND THE COURT OF APPEALS AFFIRMED.  HELD:  THE NLRB'S ORDERS IN
CERTIFICATION PROCEEDINGS UNDER SEC. 9(C) OF THE ACT ARE NOT FINAL
ORDERS MADE REVIEWABLE BY SECS. 10(E) AND (F).  LEEDOM V. KYNE, 358
U.S. 184, DISTINGUISHED.  THEY CAN, HOWEVER, BECOME REVIEWABLE WHERE AN
EMPLOYER'S REFUSAL TO BARGAIN WITH A CERTIFIED UNIT RESULTS IN AN
UNFAIR LABOR ACT CHARGE BEING BROUGHT, IN WHICH CASE SEC. 9(D) OF THE
ACT INDIRECTLY PROVIDES FOR FULL JUDICIAL REVIEW OF THE UNDERLYING
CERTIFICATION ORDER.  PP. 474-482. 

BOIRE, REGIONAL DIRECTOR, TWELFTH REGION, NATIONAL LABOR RELATIONS
BOARD, V. GREYHOUND CORPORATION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR
COACH EMPLOYEES OF AMERICA, AFL-CIO (THE UNION) FILED AN AMENDED
PETITION WITH THE NATIONAL LABOR RELATIONS BOARD PURSUANT TO SEC. 9(C)
OF THE NATIONAL LABOR RELATIONS ACT, (FN1) REQUESTING A REPRESENTATION
ELECTION AMONG THE PORTERS, JANITORS AND MAIDS WORKING AT FOUR FLORIDA
BUS TERMINALS OPERATED BY THE RESPONDENT (GREYHOUND).  THE AMENDED
PETITION DESIGNATED THE "EMPLOYER" OF THE EMPLOYEES SOUGHT TO BE
REPRESENTED AS GREYHOUND AND FLOORS, INC. THE LATTER, A CORPORATION
ENGAGED IN THE BUSINESS OF PROVIDING CLEANING, MAINTENANCE AND SIMILAR
SERVICES TO VARIOUS CUSTOMERS IN FLORIDA, HAD CONTRACTED WITH GREYHOUND
TO PROVIDE SUCH SERVICES AT THE FOUR TERMINALS IN QUESTION. 

AT THE BOARD HEARING ON THE PETITION, THE UNION CONTENDED
ALTERNATIVELY THAT THE UNIT REQUESTED WAS APPROPRIATE AS A RESIDUAL
UNIT OF ALL UNREPRESENTED GREYHOUND EMPLOYEES AT THE FOUR TERMINALS -
ON THE GROUND THAT GREYHOUND WAS AT LEAST A JOINT EMPLOYER WITH FLOORS
OF THE EMPLOYEES - OR THAT THE UNIT WAS APPROPRIATE BECAUSE THE
EMPLOYEES COMPRISED A HOMOGENEOUS, DISTINCT GROUP.  GREYHOUND AND
FLOORS CLAIMED THAT THE LATTER WAS THE SOLE EMPLOYER OF THE EMPLOYEES,
AND THAT THE APPROPRIATE BARGAINING UNIT SHOULD THEREFORE ENCOMPASS ALL
FLOORS' EMPLOYEES, EITHER IN ALL FOUR CITIES IN WHICH THE TERMINALS ARE
LOCATED, OR IN SEPARATE GROUPS. 

THE BOARD FOUND THAT WHILE FLOORS HIRED, PAID, DISCIPLINED,
TRANSFERRED, PROMOTED AND DISCHARGED THE EMPLOYEES, GREYHOUND TOOK PART
IN SETTING UP WORK SCHEDULES, IN DETERMINING THE NUMBER OF EMPLOYEES
REQUIRED TO MEET THOSE SCHEDULES, AND IN DIRECTING THE WORK OF THE
EMPLOYEES IN QUESTION.  THE BOARD ALSO FOUND THAT FLOORS' SUPERVISORS
VISITED THE TERMINALS ONLY IRREGULARLY - ON OCCASION NOT APPEARING FOR
AS MUCH AS TWO DAYS AT A TIME - AND THAT IN AT LEAST ONE INSTANCE
GREYHOUND HAD PROMPTED THE DISCHARGE OF AN EMPLOYEE WHOM IT REGARDED AS
UNSATISFACTORY.  ON THIS BASIS, THE BOARD, WITH ONE MEMBER DISSENTING,
CONCLUDED THAT GREYHOUND AND FLOORS WERE JOINT EMPLOYERS, BECAUSE THEY
EXERCISED COMMON CONTROL OVER THE EMPLOYEES, AND THAT THE UNIT
CONSISTING OF ALL EMPLOYEES UNDER THE JOINT EMPLOYER RELATIONSHIP WAS
AN APPROPRIATE UNIT IN WHICH TO HOLD AN ELECTION.  THE BOARD THEREUPON
DIRECTED AN ELECTION TO DETERMINE WHETHER THE EMPLOYEES DESIRED TO BE
REPRESENTED BY THE UNION. 

SHORTLY BEFORE THE ELECTION WAS SCHEDULED TO TAKE PLACE, GREYHOUND
FILED THIS SUIT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA, SEEKING TO SET ASIDE THE DECISION OF THE BOARD AND
TO ENJOIN THE PENDING ELECTION.  AFTER A HEARING THE COURT ENTERED AN
ORDER PERMANENTLY RESTRAINING THE ELECTION.  205 F. SUPP. 686. 
CONCLUDING THAT IT HAD JURISDICTION ON THE BASIS OF THIS COURT'S
DECISION IN LEEDOM V. KYNE, 358 U.S. 184, THE COURT HELD ON THE MERITS
THAT THE BOARD'S FINDINGS WERE INSUFFICIENT AS A MATTER OF LAW TO
ESTABLISH A JOINT EMPLOYER RELATIONSHIP, THAT THOSE FINDINGS
ESTABLISHED, AS A MATTER OF LAW, THAT FLOORS WAS THE SOLE EMPLOYER OF
THE EMPLOYEES IN QUESTION, AND THAT THE BOARD HAD THEREFORE VIOLATED
THE NATIONAL LABOR RELATIONS ACT BY ATTEMPTING TO CONDUCT A
REPRESENTATION ELECTION WHERE NO EMPLOYMENT RELATIONSHIP EXISTED
BETWEEN THE EMPLOYEES AND THE PURPORTED EMPLOYER.  THE COURT OF APPEALS
AFFIRMED, 309 F.2D 397, AND WE GRANTED CERTIORARI TO CONSIDER A
SEEMINGLY IMPORTANT QUESTION OF FEDERAL LABOR LAW.  372 U.S. 964.  WE
REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

BOTH PARTIES AGREE THAT IN THE NORMAL COURSE OF EVENTS BOARD ORDERS
IN CERTIFICATION PROCEEDINGS UNDER SEC. 9(C) ARE NOT DIRECTLY
REVIEWABLE IN THE COURTS.  THIS COURT HELD AS LONG AGO AS AMERICAN
FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. 401, THAT THE "FINAL
ORDERS" MADE REVIEWABLE BY SECS. 10(E) AND (F) (FN2) IN THE COURTS OF
APPEALS DO NOT INCLUDE BOARD DECISIONS IN CERTIFICATION PROCEEDINGS. 
SUCH DECISIONS, RATHER, ARE NORMALLY REVIEWABLE ONLY WHERE THE DISPUTE
CONCERNING THE CORRECTNESS OF THE CERTIFICATION EVENTUATES IN A FINDING
BY THE BOARD THAT AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED AS, FOR
EXAMPLE, WHERE AN EMPLOYER REFUSES TO BARGAIN WITH A CERTIFIED
REPRESENTATIVE ON THE GROUND THAT THE ELECTION WAS HELD IN AN
INAPPROPRIATE BARGAINING UNIT.  IN SUCH A CASE, SEC. 9(D) OF THE ACT
MAKES FULL PROVISION FOR JUDICIAL REVIEW OF THE UNDERLYING
CERTIFICATION ORDER BY PROVIDING THAT "SUCH CERTIFICATION AND THE
RECORD OF SUCH INVESTIGATION SHALL BE INCLUDED IN THE TRANSCRIPT OF THE
ENTIRE RECORD REQUIRED TO BE FILED" IN THE COURT OF APPEALS.  (FN3) 

THAT THIS INDIRECT METHOD OF OBTAINING JUDICIAL REVIEW IMPOSES
SIGNIFICANT DELAYS UPON ATTEMPTS TO CHALLENGE THE VALIDITY OF BOARD
ORDERS IN CERTIFICATION PROCEEDINGS IS OBVIOUS.  BUT IT IS EQUALLY
OBVIOUS THAT CONGRESS EXPLICITLY INTENDED TO IMPOSE PRECISELY SUCH
DELAYS.  AT THE TIME OF THE ORIGINAL PASSAGE OF THE NATIONAL LABOR
RELATIONS ACT IN 1935, THE HOUSE REPORT CLEARLY DELINEATED THE
CONGRESSIONAL POLICY JUDGMENT WHICH UNDERLAY THE RESTRICTION OF
JUDICIAL REVIEW TO THAT PROVIDED FOR IN SEC. 9(D): 

"WHEN AN EMPLOYEE ORGANIZATION HAS BUILT UP ITS MEMBERSHIP TO A POINT
WHERE IT IS ENTITLED TO BE RECOGNIZED AS THE REPRESENTATIVE OF THE
EMPLOYEES FOR COLLECTIVE BARGAINING, AND THE EMPLOYER REFUSES TO ACCORD
SUCH RECOGNITION, THE UNION, UNLESS AN ELECTION CAN PROMPTLY BE HELD TO
DETERMINE THE CHOICE OF REPRESENTATION, RUNS THE RISK OF IMPAIRMENT OF
STRENGTH BY ATTRITION AND DELAY WHILE THE CASE IS DRAGGING ON THROUGH
THE COURTS, OR ELSE IS FORCED TO CALL A STRIKE TO ACHIEVE RECOGNITION
BY ITS OWN ECONOMIC POWER.  SUCH STRIKES HAVE BEEN CALLED WHEN ELECTION
ORDERS OF THE NATIONAL LABOR RELATIONS BOARD HAVE BEEN HELD UP BY COURT
REVIEW."  (FN4) 

AND BOTH THE HOUSE (FN5) AND THE SENATE REPORTS (FN6) SPELLED OUT THE
THESIS, REPEATED ON THE FLOOR, THAT THE PURPOSE OF SEC. 9(D) WAS TO
PROVIDE "FOR REVIEW IN THE COURTS ONLY AFTER THE ELECTION HAS BEEN HELD
AND THE BOARD HAS ORDERED THE EMPLOYER TO DO SOMETHING PREDICATED UPON
THE RESULTS OF THE ELECTION."  (FN7)  CONGRESSIONAL DETERMINATION TO
RESTRICT JUDICIAL REVIEW IN SUCH SITUATIONS WAS REAFFIRMED IN 1947, AT
THE TIME THAT THE TAFT-HARTLEY AMENDMENTS WERE UNDER CONSIDERATION,
WHEN A CONFERENCE COMMITTEE REJECTED A HOUSE AMENDMENT WHICH WOULD HAVE
PERMITTED ANY INTERESTED PERSON TO OBTAIN REVIEW IMMEDIATELY AFTER A
CERTIFICATION (FN8) BECAUSE, AS SENATOR TAFT NOTED, "SUCH PROVISION
WOULD PERMIT DILATORY TACTICS IN REPRESENTATION PROCEEDINGS."  (FN9) 

IN LIGHT OF THE CLEAR IMPORT OF THIS HISTORY, THIS COURT HAS
CONSISTENTLY REFUSED TO ALLOW DIRECT REVIEW OF SUCH ORDERS IN THE COURT
OF APPEALS.  AMERICAN FEDERATION OF LABOR V. LABOR BOARD, SUPRA. IN TWO
CASES, HOWEVER, EACH CHARACTERIZED BY EXTRAORDINARY CIRCUMSTANCES, OUR
DECISIONS HAVE PERMITTED DISTRICT COURT REVIEW OF ORDERS ENTERED IN
CERTIFICATION PROCEEDINGS.  IN LEEDOM V. KYNE, 358 U.S. 184, DESPITE
THE INJUNCTION OF SEC. 9(B)(1) OF THE ACT THAT "THE BOARD SHALL NOT (1)
DECIDE THAT ANY UNIT IS APPROPRIATE  ...  IF SUCH UNIT INCLUDES BOTH
PROFESSIONAL EMPLOYEES AND EMPLOYEES WHO ARE NOT PROFESSIONAL EMPLOYEES
UNLESS A MAJORITY OF SUCH PROFESSIONAL EMPLOYEES VOTE FOR INCLUSION IN
SUCH UNIT," THE BOARD - WITHOUT POLLING THE PROFESSIONAL EMPLOYEES -
APPROVED AS APPROPRIATE A UNIT CONTAINING BOTH TYPES OF EMPLOYEES.  THE
BOARD CONCEDED IN THE COURT OF APPEALS THAT IT "HAD ACTED IN EXCESS OF
ITS POWERS AND HAD THEREBY WORKED INJURY TO THE STATUTORY RIGHTS OF THE
PROFESSIONAL EMPLOYEES."  358 U.S., AT 187.  WE POINTED OUT THERE THAT
THE DISTRICT COURT SUIT WAS "NOT ONE TO 'REVIEW,' IN THE SENSE OF THAT
TERM AS USED IN THE ACT, A DECISION OF THE BOARD MADE WITHIN ITS
JURISDICTION.  RATHER IT IS ONE TO STRIKE DOWN AN ORDER OF THE BOARD
MADE IN EXCESS OF ITS DELEGATED POWERS AND CONTRARY TO A SPECIFIC
PROHIBITION IN THE ACT."  358 U.S., AT 188.  UPON THESE GROUNDS WE
AFFIRMED THE DISTRICT COURT'S JUDGMENT SETTING ASIDE THE BOARD'S
"ATTEMPTED EXERCISE OF A POWER THAT HAD BEEN SPECIFICALLY WITHHELD." 
358 U.S., AT 189.  AND IN MCCULLOCH V. SOCIEDAD NACIONAL, 372 U.S. 10,
IN WHICH DISTRICT COURT JURISDICTION WAS UPHELD IN A SITUATION
INVOLVING THE QUESTION OF APPLICATION OF THE LAWS OF THE UNITED STATES
TO FOREIGN-FLAG SHIPS AND THEIR CREWS, THE COURT WAS CAREFUL TO NOTE
THAT "THE PRESENCE OF PUBLIC QUESTIONS PARTICULARLY HIGH IN THE SCALE
OF OUR NATIONAL INTEREST BECAUSE OF THEIR INTERNATIONAL COMPLEXION IS A
UNIQUELY COMPELLING JUSTIFICATION FOR PROMPT JUDICIAL RESOLUTION OF THE
CONTROVERSY OVER THE BOARD'S POWER.  NO QUESTION OF REMOTELY COMPARABLE
URGENCY WAS INVOLVED IN KYNE, WHICH WAS A PURELY DOMESTIC ADVERSARY
SITUATION.  THE EXCEPTION RECOGNIZED TODAY IS THEREFORE NOT TO BE TAKEN
AS AN ENLARGEMENT OF THE EXCEPTION IN KYNE."  372 U.S., AT 17. 

THE RESPONDENT MAKES NO CLAIM THAT THIS CASE IS AKIN TO SOCIEDAD
NACIONAL.  THE ARGUMENT IS, RATHER, THAT THE PRESENT CASE IS ONE WHICH
FALLS WITHIN THE NARROW LIMITS OF KYNE, AS THE DISTRICT COURT AND THE
COURT OF APPEALS HELD.  THE RESPONDENT POINTS OUT THAT CONGRESS HAS
SPECIFICALLY EXCLUDED AN INDEPENDENT CONTRACTOR FROM THE DEFINITION OF
"EMPLOYEE" IN SEC. 2(3) OF THE ACT.  (FN10)  IT IS SAID THAT THE
BOARD'S FINDING THAT GREYHOUND IS AN EMPLOYER OF EMPLOYEES WHO ARE
HIRED, PAID, TRANSFERRED AND PROMOTED BY AN INDEPENDENT CONTRACTOR IS,
THEREFORE PLAINLY IN EXCESS OF THE STATUTORY POWERS DELEGATED TO IT BY
CONGRESS.  THIS ARGUMENT, WE THINK, MISCONCEIVES BOTH THE IMPORT OF THE
SUBSTANTIVE FEDERAL LAW AND THE PAINSTAKINGLY DELINEATED PROCEDURAL
BOUNDARIES OF KYNE. 

WHETHER GREYHOUND, AS THE BOARD HELD, POSSESSED SUFFICIENT CONTROL
OVER THE WORK OF THE EMPLOYEES TO QUALIFY AS A JOINT EMPLOYER WITH
FLOORS IS A QUESTION WHICH IS UNAFFECTED BY ANY POSSIBLE DETERMINATION
AS TO FLOORS' STATUS AS AN INDEPENDENT CONTRACTOR, SINCE GREYHOUND HAS
NEVER SUGGESTED THAT THE EMPLOYEES THEMSELVES OCCUPY AN INDEPENDENT
CONTRACTOR STATUS.  AND WHETHER GREYHOUND POSSESSED SUFFICIENT INDICIA
OF CONTROL TO BE AN "EMPLOYER" IS ESSENTIALLY A FACTUAL ISSUE, UNLIKE
THE QUESTION IN KYNE, WHICH DEPENDED SOLELY UPON CONSTRUCTION OF THE
STATUTE.  THE KYNE EXCEPTION IS A NARROW ONE, NOT TO BE EXTENDED TO
PERMIT PLENARY DISTRICT COURT REVIEW OF BOARD ORDERS IN CERTIFICATION
PROCEEDINGS WHENEVER IT CAN BE SAID THAT AN ERRONEOUS ASSESSMENT OF THE
PARTICULAR FACTS BEFORE THE BOARD HAS LED IT TO A CONCLUSION WHICH DOES
NOT COMPORT WITH THE LAW.  JUDICIAL REVIEW IN SUCH A SITUATION HAS BEEN
LIMITED BY CONGRESS TO THE COURTS OF APPEALS, AND THEN ONLY UNDER THE
CONDITIONS EXPLICITLY LAID DOWN IN SEC. 9(D) OF THE ACT. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
IT IS SO ORDERED. 

FN1  SECTION 9(C) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 29
U.S.C. SEC. 159(C), PROVIDES IN PERTINENT PART: 

"(1)  WHENEVER A PETITION SHALL HAVE BEEN FILED, IN ACCORDANCE WITH
SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE BOARD: 

"(A)  BY AN EMPLOYEE OR GROUP OF EMPLOYEES OR ANY INDIVIDUAL OR LABOR
ORGANIZATION ACTING IN THEIR BEHALF ALLEGING THAT A SUBSTANTIAL NUMBER
OF EMPLOYEES (I) WISH TO BE REPRESENTED FOR COLLECTIVE BARGAINING AND
THAT THEIR EMPLOYER DECLINES TO RECOGNIZE THEIR REPRESENTATIVE AS THE
REPRESENTATIVE DEFINED IN SUBSECTION (A) OF THIS SECTION, OR (II)
ASSERT THAT THE INDIVIDUAL OR LABOR ORGANIZATION, WHICH HAS BEEN
CERTIFIED OR IS BEING CURRENTLY RECOGNIZED BY THEIR EMPLOYER AS THE
BARGAINING REPRESENTATIVE, IS NO LONGER A REPRESENTATIVE AS DEFINED IN
SUBSECTION (A) OF THIS SECTION; OR: 

"(B)  BY AN EMPLOYER, ALLEGING THAT ONE OR MORE INDIVIDUALS OR LABOR
ORGANIZATIONS HAVE PRESENTED TO HIM A CLAIM TO BE RECOGNIZED AS THE
REPRESENTATIVE DEFINED IN SUBSECTION (A) OF THIS SECTION; "THE BOARD
SHALL INVESTIGATE SUCH PETITION AND IF IT HAS REASONABLE CAUSE TO
BELIEVE THAT A QUESTION OF REPRESENTATION AFFECTING COMMERCE EXISTS
SHALL PROVIDE FOR AN APPROPRIATE HEARING UPON DUE NOTICE.  SUCH HEARING
MAY BE CONDUCTED BY AN OFFICER OR EMPLOYEE OF THE REGIONAL OFFICE, WHO
SHALL NOT MAKE ANY RECOMMENDATIONS WITH RESPECT THERETO.  IF THE BOARD
FINDS UPON THE RECORD OF SUCH HEARING THAT SUCH A QUESTION OF
REPRESENTATION EXISTS, IT SHALL DIRECT AN ELECTION BY SECRET BALLOT AND
SHALL CERTIFY THE RESULTS THEREOF." 

FN2  SECTION 10 OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 29
U.S.C. SEC. 160, PROVIDES IN PERTINENT PART: 

"(E)  THE BOARD SHALL HAVE POWER TO PETITION ANY COURT OF APPEALS OF
THE UNITED STATES, OR IF ALL THE COURTS OF APPEALS TO WHICH APPLICATION
MAY BE MADE ARE IN VACATION, ANY DISTRICT COURT OF THE UNITED STATES,
WITHIN ANY CIRCUIT OR DISTRICT, RESPECTIVELY, WHEREIN THE UNFAIR LABOR
PRACTICE IN QUESTION OCCURRED OR WHEREIN SUCH PERSON RESIDES OR
TRANSACTS BUSINESS, FOR THE ENFORCEMENT OF SUCH ORDER AND FOR
APPROPRIATE TEMPORARY RELIEF OR RESTRAINING ORDER, AND SHALL FILE IN
THE COURT THE RECORD IN THE PROCEEDINGS, AS PROVIDED IN SECTION 2112 OF
TITLE 28  ...  .    "(F)  ANY PERSON AGGRIEVED BY A FINAL ORDER OF THE
BOARD GRANTING OR DENYING IN WHOLE OR IN PART THE RELIEF SOUGHT MAY
OBTAIN A REVIEW OF SUCH ORDER IN ANY UNITED STATES COURT OF APPEALS IN
THE CIRCUIT WHEREIN THE UNFAIR LABOR PRACTICE IN QUESTION WAS ALLEGED
TO HAVE BEEN ENGAGED IN OR WHEREIN SUCH PERSON RESIDES OR TRANSACTS
BUSINESS, OR IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA, BY FILING IN SUCH A COURT A WRITTEN PETITION PRAYING THAT THE
ORDER OF THE BOARD BE MODIFIED OR SET ASIDE."    FN3  SECTION 9(D) OF
THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. SEC. 159(D), PROVIDES IN
PERTINENT PART: 

"WHENEVER AN ORDER OF THE BOARD MADE PURSUANT TO SECTION 160(C)  ...
IS BASED IN WHOLE OR IN PART UPON FACTS CERTIFIED FOLLOWING AN
INVESTIGATION PURSUANT TO SUBSECTION (C) OF THIS SECTION AND THERE IS A
PETITION FOR THE ENFORCEMENT OR REVIEW OF SUCH ORDER, SUCH
CERTIFICATION AND THE RECORD OF SUCH INVESTIGATION SHALL BE INCLUDED IN
THE TRANSCRIPT OF THE ENTIRE RECORD REQUIRED TO BE FILED UNDER
SUBSECTION (E) OR (F)  ...  , AND THEREUPON THE DECREE OF THE COURT
ENFORCING, MODIFYING, OR SETTING ASIDE IN WHOLE OR IN PART THE ORDER OF
THE BOARD SHALL BE MADE AND ENTERED UPON THE PLEADINGS, TESTIMONY, AND
PROCEEDINGS SET FORTH IN SUCH TRANSCRIPT." 

FN4  H.R. REP. NO. 972, 74TH CONG., 1ST SESS., 5. 

FN5  "  ...  SECTION 9(D) OF THE BILL MAKES CLEAR THAT THERE IS TO BE
NO COURT REVIEW PRIOR TO THE HOLDING OF THE ELECTION, AND PROVIDES AN
EXCLUSIVE, COMPLETE, AND ADEQUATE REMEDY WHENEVER AN ORDER OF THE BOARD
MADE PURSUANT TO SECTION 10(C) IS BASED IN WHOLE OR IN PART UPON FACTS
CERTIFIED FOLLOWING AN ELECTION OR OTHER INVESTIGATION PURSUANT TO
INVESTIGATION PROVIDES AN APPROPRIATE SAFEGUARD AND OPPORTUNITY TO BE
HEARD.  SINCE THE CERTIFICATION AND THE RECORD OF THE INVESTIGATION ARE
REQUIRED TO BE INCLUDED IN THE TRANSCRIPT OF THE ENTIRE RECORD FILED
PURSUANT TO SECTION 10(E) OR (F), THE BOARD'S ACTIONS AND
DETERMINATIONS OF FACT AND LAW IN REGARD THERETO WILL BE SUBJECT TO THE
SAME COURT REVIEW AS IS PROVIDED FOR ITS OTHER DETERMINATIONS UNDER
20-21. 

FN6  "SECTION 9(D) MAKES IT ABSOLUTELY CLEAR THAT THERE SHALL BE NO
RIGHT TO COURT REVIEW ANTERIOR TO THE HOLDING OF AN ELECTION.  AN
ELECTION IS THE MERE DETERMINATION OF A PRELIMINARY FACT, AND IN ITSELF
HAS NO SUBSTANTIAL EFFECT UPON THE RIGHTS OF EITHER EMPLOYERS OR
EMPLOYEES.  THERE IS NO MORE REASON FOR COURT REVIEW PRIOR TO AN
ELECTION THAN FOR COURT REVIEW PRIOR TO A HEARING.  BUT IF SUBSEQUENTLY
THE BOARD MAKES AN ORDER PREDICATED UPON THE ELECTION, SUCH AS AN ORDER
TO BARGAIN COLLECTIVELY WITH ELECTED REPRESENTATIVES, THEN THE ENTIRE
ELECTION PROCEDURE BECOMES PART OF THE RECORD UPON WHICH THE ORDER OF
THE BOARD IS BASED, AND IS FULLY REVIEWABLE BY ANY AGGRIEVED PARTY IN
THE FEDERAL COURTS IN THE MANNER PROVIDED IN SECTION 10.  AND THIS
REVIEW WOULD INCLUDE WITHIN ITS SCOPE THE ACTION OF THE BOARD IN
DETERMINING THE APPROPRIATE UNIT FOR PURPOSES OF THE ELECTION.  THIS
PROVIDES A COMPLETE GUARANTEE AGAINST ARBITRARY ACTION BY THE BOARD." 
S. REP. NO. 573, 74TH CONG., 1ST SESS., 14. 

FN7  79 CONG. REC. 7658. 

FN8  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS., 43; H.R. REP. NO.
510, 80TH CONG., 1ST SESS., 56-57. 

FN9  93 CONG. REC. 6444. 

FN10  SECTION 2(3) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
29 U.S.C. SEC. 152(3).  THE EFFECT OF THIS PROVISION WAS TO OVERRULE
LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111.  SEE H.R. REP. NO.
245, 80TH CONG., 1ST SESS., 18. 
..END :




STONER V. CALIFORNIA 376 U.S. 483 


NO. 209.  ARGUED FEBRUARY 25, 1964.  - DECIDED MARCH 23, 1964.  - 205
CAL. APP. 2D 108, 22 CAL. RPTR.  718, REVERSED. 


POLICE DEVELOPED A LEAD NEAR THE SCENE OF A ROBBERY WHICH ULTIMATELY
LED THEM TO A HOTEL WHERE, WITHOUT A WARRANT, THEY SEARCHED
PETITIONER'S ROOM IN HIS ABSENCE, HAVING BEEN GIVEN ACCESS THERETO BY A
HOTEL CLERK.  THERE THEY FOUND ARTICLES LIKE THOSE ASSOCIATED WITH THE
CRIME BY AN EYEWITNESS.  PETITIONER WAS ARRESTED TWO DAYS LATER IN
ANOTHER STATE AND FOLLOWING A TRIAL IN WHICH THE ARTICLES WERE USED AS
EVIDENCE WAS CONVICTED.  HELD: 

1.  A SEARCH WITHOUT A WARRANT CAN BE JUSTIFIED AS INCIDENT TO ARREST
ONLY IF SUBSTANTIALLY CONTEMPORANEOUS AND CONFINED TO THE IMMEDIATE
VICINITY OF ARREST.  AGNELLO V. UNITED STATES, 269 U.S. 20, FOLLOWED. 
PP. 484-487. 

2.  A HOTEL GUEST IS ENTITLED TO THE CONSTITUTIONAL PROTECTION
AGAINST UNREASONABLE SEARCHES AND SEIZURES.  THE HOTEL CLERK HAD NO
AUTHORITY TO PERMIT THE ROOM SEARCH AND THE POLICE HAD NO BASIS TO
BELIEVE THAT PETITIONER HAD AUTHORIZED THE CLERK TO PERMIT THE SEARCH. 
PP. 488-490. 

STONER V. CALIFORNIA. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED OF ARMED ROBBERY AFTER A JURY TRIAL IN
THE SUPERIOR COURT OF LOS ANGELES COUNTY, CALIFORNIA.  AT THE TRIAL
SEVERAL ARTICLES WHICH HAD BEEN FOUND BY POLICE OFFICERS IN A SEARCH OF
THE PETITIONER'S HOTEL ROOM DURING HIS ABSENCE WERE ADMITTED INTO
EVIDENCE OVER HIS OBJECTION.  A DISTRICT COURT OF APPEAL OF CALIFORNIA
AFFIRMED THE CONVICTION, (FN1) AND THE SUPREME COURT OF CALIFORNIA
DENIED FURTHER REVIEW.  (FN2)  WE GRANTED CERTIORARI, LIMITING REVIEW
"TO THE QUESTION OF WHETHER EVIDENCE WAS ADMITTED WHICH HAD BEEN
OBTAINED BY AN UNLAWFUL SEARCH AND SEIZURE."  374 U.S. 826.  FOR THE
REASONS WHICH FOLLOW, WE CONCLUDE THAT THE PETITIONER'S CONVICTION MUST
BE SET ASIDE. 

THE ESSENTIAL FACTS ARE NOT IN DISPUTE.  ON THE NIGHT OF OCTOBER 25,
1960, THE BUDGET TOWN FOOD MARKET IN MONROVIA, CALIFORNIA, WAS ROBBED
BY TWO MEN, ONE OF WHOM WAS DESCRIBED BY EYEWITNESSES AS CARRYING A GUN
AND WEARING HORN-RIMMED GLASSES AND A GREY JACKET.  SOON AFTER THE
ROBBERY A CHECKBOOK BELONGING TO THE PETITIONER WAS FOUND IN AN
ADJACENT PARKING LOT AND TURNED OVER TO THE POLICE.  TWO OF THE STUBS
IN THE CHECKBOOK INDICATED THAT CHECKS HAD BEEN DRAWN TO THE ORDER OF
THE MAYFAIR HOTEL IN POMONA, CALIFORNIA.  PURSUING THIS LEAD, THE
OFFICERS LEARNED FROM THE POLICE DEPARTMENT OF POMONA THAT THE
PETITIONER HAD A PREVIOUS CRIMINAL RECORD, AND THEY OBTAINED FROM THE
POMONA POLICE A PHOTOGRAPH OF THE PETITIONER.  THEY SHOWED THE
PHOTOGRAPH TO THE TWO EYEWITNESSES TO THE ROBBERY, WHO BOTH STATED THAT
THE PICTURE LOOKED LIKE THE MAN WHO HAD CARRIED THE GUN.  ON THE BASIS
OF THIS INFORMATION THE OFFICERS WENT TO THE MAYFAIR HOTEL IN POMONA AT
ABOUT 10 O'CLOCK ON THE NIGHT OF OCTOBER 27.  THEY HAD NEITHER SEARCH
NOR ARREST WARRANTS.  THERE THEN TRANSPIRED THE FOLLOWING EVENTS, AS
LATER RECOUNTED BY ONE OF THE OFFICERS: 

"WE APPROACHED THE DESK, THE NIGHT CLERK, AND ASKED HIM IF THERE WAS
A PARTY BY THE NAME OF JOEY L. STONER LIVING AT THE HOTEL.  HE CHECKED
HIS RECORDS AND STATED 'YES, THERE IS.'  AND WE ASKED HIM WHAT ROOM HE
WAS IN.  HE STATED HE WAS IN ROOM 404 BUT HE WAS OUT AT THIS TIME. 

"WE ASKED HIM HOW HE KNEW THAT HE WAS OUT.  HE STATED THAT THE HOTEL
REGULATIONS REQUIRED THAT THE KEY TO THE ROOM WOULD BE PLACED IN THE
MAIL BOX EACH TIME THEY LEFT THE HOTEL.  THE KEY WAS IN THE MAIL BOX,
THAT HE THEREFORE KNEW HE WAS OUT OF THE ROOM. 

"WE ASKED HIM IF HE WOULD GIVE US PERMISSION TO ENTER THE ROOM,
EXPLAINING OUR REASONS FOR THIS. 

"Q.  WHAT REASONS DID YOU EXPLAIN TO THE CLERK? 

"A.  WE EXPLAINED THAT WE WERE THERE TO MAKE AN ARREST OF A MAN WHO
HAD POSSIBLY COMMITTED A ROBBERY IN THE CITY OF MONROVIA, AND THAT WE
WERE CONCERNED ABOUT THE FACT THAT HE HAD A WEAPON.  HE STATED 'IN THIS
CASE, I WILL BE MORE THAN HAPPY TO GIVE YOU PERMISSION AND I WILL TAKE
YOU DIRECTLY TO THE ROOM.' 

"Q.  IS THAT WHAT THE CLERK TOLD YOU? 

"A.  YES, SIR. 

"Q.  WHAT ELSE HAPPENED? 

"A.  WE LEFT ONE DETECTIVE IN THE LOBBY, AND DETECTIVE OLIVER,
OFFICER COLLINS, AND MYSELF, ALONG WITH THE NIGHT CLERK, GOT ON THE
ELEVATOR AND PROCEEDED TO THE FOURTH FLOOR, AND WENT TO ROOM 404.  THE
NIGHT CLERK PLACED A KEY IN THE LOCK, UNLOCKED THE DOOR, AND SAYS, 'BE
MY GUEST.'" 

THE OFFICERS ENTERED AND MADE A THOROUGH SEARCH OF THE ROOM AND ITS
CONTENTS.  THEY FOUND A PAIR OF HORNRIMMED GLASSES AND A GREY JACKET IN
THE ROOM, AND A .45-CALIBER AUTOMATIC PISTOL WITH A CLIP AND SEVERAL
CARTRIDGES IN THE BOTTOM OF A BUREAU DRAWER.  THE PETITIONER WAS
ARRESTED TWO DAYS LATER IN LAS VEGAS, NEVADA.  HE WAIVED EXTRADITION
AND WAS RETURNED TO CALIFORNIA FOR TRIAL ON THE CHARGE OF ARMED
ROBBERY.  THE GUN, THE CARTRIDGES AND CLIP, THE HORN-RIMMED GLASSES,
AND THE GREY JACKET WERE ALL USED AS EVIDENCE AGAINST HIM AT HIS
TRIAL. 

THE SEARCH OF THE PETITIONER'S ROOM BY THE POLICE OFFICERS WAS
CONDUCTED WITHOUT A WARRANT OF ANY KIND, AND IT THEREFORE "CAN SURVIVE
CONSTITUTIONAL INHIBITION ONLY UPON A SHOWING THAT THE SURROUNDING
FACTS BROUGHT IT WITHIN ONE OF THE EXCEPTIONS TO THE RULE THAT A SEARCH
MUST REST UPON A SEARCH WARRANT.  JONES V. UNITED STATES, 357 U.S. 493,
499; UNITED STATES V. JEFFERS, 342 U.S. 48, 51."  RIOS V. UNITED
STATES, 364 U.S. 253, 261.  THE DISTRICT COURT OF APPEAL THOUGHT THE
SEARCH WAS JUSTIFIED AS AN INCIDENT TO A LAWFUL ARREST.  (FN3)  BUT A
SEARCH CAN BE INCIDENT TO AN ARREST ONLY IF IT IS SUBSTANTIALLY
CONTEMPORANEOUS WITH THE ARREST AND IS CONFINED TO THE IMMEDIATE
VICINITY OF THE ARREST.  AGNELLO V. UNITED STATES, 269 U.S. 20.  (FN4)
WHATEVER ROOM FOR LEEWAY THERE MAY BE IN THESE CONCEPTS, (FN5) IT IS
CLEAR THAT THE SEARCH OF THE PETITIONER'S HOTEL ROOM IN POMONA,
CALIFORNIA, ON OCTOBER 27 WAS NOT INCIDENT TO HIS ARREST IN LAS VEGAS,
NEVADA, ON OCTOBER 29.  THE SEARCH WAS COMPLETELY UNRELATED TO THE
ARREST, BOTH AS TO TIME AND AS TO PLACE.  SEE PRESTON V. UNITED STATES,
DECIDED THIS DAY, ANTE, P. 364. 

IN THIS COURT THE RESPONDENT HAS RECOGNIZED THAT THE REASONING OF THE
CALIFORNIA DISTRICT COURT OF APPEAL CANNOT BE RECONCILED WITH OUR
DECISION IN AGNELLO, NOR, INDEED, WITH THE MOST RECENT CALIFORNIA
DECISIONS.  (FN6)  ACCORDINGLY, THE RESPONDENT HAS MADE NO ARGUMENT
THAT THE SEARCH CAN BE JUSTIFIED AS AN INCIDENT TO THE PETITIONER'S
ARREST.  INSTEAD, THE ARGUMENT IS MADE THAT THE SEARCH OF THE HOTEL
ROOM, ALTHOUGH CONDUCTED WITHOUT THE PETITIONER'S CONSENT, WAS LAWFUL
BECAUSE IT WAS CONDUCTED WITH THE CONSENT OF THE HOTEL CLERK.  WE FIND
THIS ARGUMENT UNPERSUASIVE. 

EVEN IF IT BE ASSUMED THAT A STATE LAW WHICH GAVE A HOTEL PROPRIETOR
BLANKET AUTHORITY TO AUTHORIZE THE POLICE TO SEARCH THE ROOMS OF THE
HOTEL'S GUESTS COULD SURVIVE CONSTITUTIONAL CHALLENGE, THERE IS NO
INTIMATION IN THE CALIFORNIA CASES CITED BY THE RESPONDENT THAT
CALIFORNIA HAS ANY SUCH LAW.  (FN7)  NOR IS THERE ANY SUBSTANCE TO THE
CLAIM THAT THE SEARCH WAS REASONABLE BECAUSE THE POLICE, RELYING UPON
THE NIGHT CLERK'S EXPRESSIONS OF CONSENT, HAD A REASONABLE BASIS FOR
THE BELIEF THAT THE CLERK HAD AUTHORITY TO CONSENT TO THE SEARCH.  OUR
DECISIONS MAKE CLEAR THAT THE RIGHTS PROTECTED BY THE FOURTH AMENDMENT
ARE NOT TO BE ERODED BY STRAINED APPLICATIONS OF THE LAW OF AGENCY OR
BY UNREALISTIC DOCTRINES OF "APPARENT AUTHORITY."  AS THIS COURT HAS
SAID: 

"IT IS UNNECESSARY AND ILL-ADVISED TO IMPORT INTO THE LAW SURROUNDING
THE CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND
SEIZURES SUBTLE DISTINCTIONS, DEVELOPED AND REFINED BY THE COMMON LAW
IN EVOLVING THE BODY OF PRIVATE PROPERTY LAW WHICH, MORE THAN ALMOST
ANY OTHER BRANCH OF LAW, HAS BEEN SHAPED BY DISTINCTIONS WHOSE VALIDITY
IS LARGELY HISTORICAL  ...  .  WE OUGHT NOT TO BOW TO THEM IN THE FAIR
ADMINISTRATION OF THE CRIMINAL LAW.  TO DO SO WOULD NOT COMPORT WITH
OUR JUSTLY PROUD CLAIM OF THE PROCEDURAL PROTECTIONS ACCORDED TO THOSE
CHARGED WITH CRIME."  JONES V. UNITED STATES, 362 U.S. 257, 266-267. 

IT IS IMPORTANT TO BEAR IN MIND THAT IT WAS THE PETITIONER'S
CONSTITUTIONAL RIGHT WHICH WAS AT STAKE HERE, AND NOT THE NIGHT CLERK'S
NOR THE HOTEL'S.  IT WAS A RIGHT, THEREFORE, WHICH ONLY THE PETITIONER
COULD WAIVE BY WORD OR DEED, EITHER DIRECTLY OR THROUGH AN AGENT.  IT
IS TRUE THAT THE NIGHT CLERK CLEARLY AND UNAMBIGUOUSLY CONSENTED TO THE
SEARCH.  BUT THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE POLICE
HAD ANY BASIS WHATSOEVER TO BELIEVE THAT THE NIGHT CLERK HAD BEEN
AUTHORIZED BY THE PETITIONER TO PERMIT THE POLICE TO SEARCH THE
PETITIONER'S ROOM. 

AT LEAST TWICE THIS COURT HAS EXPLICITLY REFUSED TO PERMIT AN
OTHERWISE UNLAWFUL POLICE SEARCH OF A HOTEL ROOM TO REST UPON CONSENT
OF THE HOTEL PROPRIETOR.  LUSTIG V. UNITED STATES, 338 U.S. 74; UNITED
STATES V. JEFFERS, 342 U.S. 48.  IN LUSTIG THE MANAGER OF A HOTEL
ALLOWED POLICE TO ENTER AND SEARCH A ROOM WITHOUT A WARRANT IN THE
OCCUPANT'S ABSENCE, AND THE SEARCH WAS HELD UNCONSTITUTIONAL.   IN
JEFFERS THE ASSISTANT MANAGER ALLOWED A SIMILAR SEARCH, AND THAT SEARCH
WAS LIKEWISE HELD UNCONSTITUTIONAL. 

IT IS TRUE, AS WAS SAID IN JEFFERS, THAT WHEN A PERSON ENGAGES A
HOTEL ROOM HE UNDOUBTEDLY GIVES "IMPLIED OR EXPRESS PERMISSION" TO
"SUCH PERSONS AS MAIDS, JANITORS OR REPAIRMEN" TO ENTER HIS ROOM "IN
THE PERFORMANCE OF THEIR DUTIES."  342 U.S., AT 51.  BUT THE CONDUCT OF
THE NIGHT CLERK AND THE POLICE IN THE PRESENT CASE WAS OF AN ENTIRELY
DIFFERENT ORDER.  IN A CLOSELY ANALOGOUS SITUATION THE COURT HAS HELD
THAT A SEARCH BY POLICE OFFICERS OF A HOUSE OCCUPIED BY A TENANT
INVADED THE TENANT'S CONSTITUTIONAL RIGHT, EVEN THOUGH THE SEARCH WAS
AUTHORIZED BY THE OWNER OF THE HOUSE, WHO PRESUMABLY HAD NOT ONLY
APPARENT BUT ACTUAL AUTHORITY TO ENTER THE HOUSE FOR SOME PURPOSES,
SUCH AS TO "VIEW WASTE."  CHAPMAN V. UNITED STATES, 365 U.S. 610.  THE
COURT POINTED OUT THAT THE OFFICERS' PURPOSE IN ENTERING WAS NOT TO
VIEW WASTE BUT TO SEARCH FOR DISTILLING EQUIPMENT, AND CONCLUDED THAT
TO UPHOLD SUCH A SEARCH WITHOUT A WARRANT WOULD HAVE TENANTS' HOMES
SECURE ONLY IN THE DISCRETION OF THEIR LANDLORDS. 

NO LESS THAN A TENANT OF A HOUSE, OR THE OCCUPANT OF A ROOM IN A
BOARDING HOUSE, MCDONALD V. UNITED STATES, 335 U.S. 451, A GUEST IN A
HOTEL ROOM IS ENTITLED TO CONSTITUTIONAL PROTECTION AGAINST
UNREASONABLE SEARCHES AND SEIZURES.  JOHNSON V. UNITED STATES, 333 U.S.
10.  THAT PROTECTION WOULD DISAPPEAR IF IT WERE LEFT TO DEPEND UPON THE
UNFETTERED DISCRETION OF AN EMPLOYEE OF THE HOTEL.  IT FOLLOWS THAT
THIS SEARCH WITHOUT A WARRANT WAS UNLAWFUL.  SINCE EVIDENCE OBTAINED
THROUGH THE SEARCH WAS ADMITTED AT THE TRIAL, THE JUDGMENT MUST BE
REVERSED.  MAPP V. OHIO, 367 U.S. 643.  (FN8)  IT IS SO ORDERED. 

FN1  205 CAL. APP. 2D 108, 22 CAL. RPTR.  718. 

FN2  205 CAL. APP. 2D, AT 116. 

FN3  THE COURT REASONED THAT THE OFFICERS HAD PROBABLE CAUSE TO
ARREST THE PETITIONER PRIOR TO THEIR ENTRY INTO THE HOTEL ROOM; THAT
THEY WERE NOT OBLIGED TO ACCEPT AS TRUE THE NIGHT CLERK'S STATEMENT
THAT THE PETITIONER WAS NOT IN HIS ROOM; THAT "IT MAY BE REASONABLY
INFERRED THAT THEY ENTERED HIS ROOM FOR THE PURPOSE OF MAKING AN
ARREST," THAT THEIR OBSERVATION OF THE GLASSES IN PLAIN SIGHT
REASONABLY LED THEM TO A FURTHER SEARCH; AND THAT IN THE CIRCUMSTANCES
THE ARREST AND THE SEARCH AND SEIZURE WERE "PART OF THE SAME
TRANSACTION."  205 CAL. APP. 2D 108, 113, 22 CAL. RPTR.  718, 722. 

FN4  "THE RIGHT WITHOUT A SEARCH WARRANT CONTEMPORANEOUSLY TO SEARCH
PERSONS LAWFULLY ARRESTED WHILE COMMITTING CRIME AND TO SEARCH THE
PLACE WHERE THE ARREST IS MADE IN ORDER TO FIND AND SEIZE THINGS
CONNECTED WITH THE CRIME AS ITS FRUITS OR AS THE MEANS BY WHICH IT WAS
COMMITTED, AS WELL AS WEAPONS AND OTHER THINGS TO EFFECT AN ESCAPE FROM
CUSTODY, IS NOT TO BE DOUBTED.  SEE CARROLL V. UNITED STATES, 267 U.S.
132, 158; WEEKS V. UNITED STATES, 232 U.S. 383, 392  ...  .  BUT THE
RIGHT DOES NOT EXTEND TO OTHER PLACES."  ID., AT 30.  SEE ALSO KER V.
CALIFORNIA, 374 U.S. 23, 42, N. 13; LUSTIG V. UNITED STATES, 338 U.S.
74, 79-80. 

FN5  ALTHOUGH SOME MEMBERS OF THIS COURT HAVE EXPRESSED THE VIEW THAT
THE STATEMENT IN AGNELLO DEFINING THE PERMISSIBLE BOUNDS OF A SEARCH
INCIDENT TO ARREST WENT TOO FAR, SEE, E.G., HARRIS V. UNITED STATES,
331 U.S. 145, 155, 183, 195 (DISSENTING OPINION), THE AGNELLO HOLDING
AS TO WHAT MAY NOT BE SEARCHED - A HOUSE SUBSTANTIALLY REMOVED
GEOGRAPHICALLY FROM THE PLACE OF ARREST AT A TIME NOT SUBSTANTIALLY
CONTEMPORANEOUS WITH THE ARREST - HAS NEVER BEEN QUESTIONED IN THIS
COURT. 

FN6  "THE SEARCH CANNOT BE JUSTIFIED AS INCIDENT TO THE ARREST 'FOR
IT WAS AT A DISTANCE FROM THE PLACE THEREOF AND WAS NOT CONTEMPORANEOUS
THEREWITH.'  (CASTANEDA V. SUPERIOR COURT, 59 A.C. 456, 459, 30 CAL.
RPTR.  1, 3, 380 P.2D 641, 643; TOMPKINS V. SUPERIOR COURT, 59 A.C. 75,
77, 27 CAL. RPTR.  889, 378 P.2D 113; PEOPLE V. GORG, 45 CAL. 2D 776,
781, 291 P.2D 469.)"  PEOPLE V. KING, 60 CAL. 2D 308, 311, 32 CAL.
RPTR.  825, 826, 384 P.2D 153, 155. 

FN7  SEE ROBERTS V. CASEY, 36 CAL. APP. 2D SUPP. 767, 93 P.2D 654;
FOX V. WINDEMERE HOTEL APT.  CO., 30 CAL. APP. 162, 157 P. 820; PEOPLE
V. VAUGHAN, 65 CAL. APP. 2D SUPP.  844, 150 P.2D 964.  "THE MERE FACT
THAT A PERSON IS A HOTEL MANAGER DOES NOT IMPORT AN AUTHORITY TO PERMIT
THE POLICE TO ENTER AND SEARCH THE ROOMS OF HER GUESTS."  PEOPLE V.
BURKE, 208 CAL. APP. 2D 149, 160, 24 CAL. RPTR.  912, 919. 

FN8  THE RESPONDENT HAS ARGUED THAT THE CASE SHOULD BE REMANDED TO
LET THE CALIFORNIA DISTRICT COURT OF APPEAL DECIDE WHETHER THE
ADMISSION OF THIS EVIDENCE WAS HARMLESS ERROR.  BUT THE CONVICTION
DEPENDED IN LARGE PART UPON THE JURY'S RESOLUTION OF THE QUESTION OF
THE CREDIBILITY OF WITNESSES, AND THAT DETERMINATION MUST ALMOST
CERTAINLY HAVE BEEN INFLUENCED BY THE INCRIMINATING NATURE OF THE
PHYSICAL EVIDENCE ILLEGALLY SEIZED AND ERRONEOUSLY ADMITTED.  THERE IS
AT LEAST "A REASONABLE POSSIBILITY THAT THE EVIDENCE COMPLAINED OF
MIGHT HAVE CONTRIBUTED TO THE CONVICTION."  FAHY V. CONNECTICUT, 375
U.S. 85, 86.    MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING
IN PART. 

I ENTIRELY AGREE WITH THE COURT'S OPINION, EXCEPT AS TO ITS
DISPOSITION OF THE CASE.  I WOULD REMAND THE CASE TO THE CALIFORNIA
DISTRICT COURT OF APPEAL SO THAT IT MAY CONSIDER WHETHER OR NOT
ADMISSION OF THE ILLEGALLY SEIZED EVIDENCE WAS HARMLESS ERROR.  FAHY V.
CONNECTICUT, 375 U.S. 85, DOES NOT REQUIRE OR JUSTIFY THE COURSE WHICH
THE COURT TAKES.  IN FAHY, CONNECTICUT AT LEAST HAD HAD THE OPPORTUNITY
TO DECIDE THE QUESTION OF HARMLESS ERROR WITH RESPECT TO THE ILLEGALLY
SEIZED EVIDENCE THERE INVOLVED; HERE CALIFORNIA HAS HAD NO SUCH
OPPORTUNITY.*  FOR THIS COURT TO DECIDE THAT QUESTION AS AN ORIGINAL
MATTER IS, IN MY OPINION, INCOMPATIBLE WITH PROPER FEDERAL-STATE
RELATIONS. 

*THE EVIDENCE AGAINST THE ACCUSED INCLUDED A CONFESSION OF THE CRIME
CHARGED.  THIS COURT REFUSED TO REVIEW THE CLAIM, CONTAINED IN THE
PETITION FOR CERTIORARI, THAT THIS CONFESSION HAD BEEN INVOLUNTARILY
MADE.  374 U.S. 826, ANTE, P. 484. 

ACCORDINGLY, I WOULD VACATE THE JUDGMENT BELOW AND REMAND THE CASE TO
THE CALIFORNIA COURTS FOR FURTHER APPROPRIATE PROCEEDINGS. 
..END :













UNITED STEELWORKERS OF AMERICA, AFL-CIO V. NATIONAL LABOR RELATIONS
BOARD 376 U.S. 492 


NO. 89.  ARGUED FEBRUARY 19, 1964.  - DECIDED MARCH 23, 1964.  - 311
F.2D 135, REVERSED. 


PETITIONER UNION CALLED A STRIKE AND PICKETED ALL ENTRANCES TO THE
RESPONDENT COMPANY'S PLANT, INCLUDING AN ENTRANCE TO A RAILROAD-OWNED
SPUR TRACK IMMEDIATELY ADJACENT TO THE STRUCK PREMISES, TO INDUCE
RAILROAD EMPLOYEES NOT TO MAKE PICKUPS AND DELIVERIES AT THE STRUCK
PLANT.  THE PICKETING WAS ACCOMPANIED BY FORCE AND VIOLENCE.  THE
NATIONAL LABOR RELATIONS BOARD FOUND THAT THE UNION HAD COMMITTED AN
UNFAIR LABOR PRACTICE UNDER SEC. 8(B)(1)(A) OF THE NATIONAL LABOR
RELATIONS ACT, BUT HELD THE PICKETING TO BE PRIMARY ACTIVITY NOT BARRED
BY SEC. 8(B)(4)(B) IN VIEW OF THAT SECTION'S PROVISO THAT "NOTHING
CONTAINED IN THIS CLAUSE (B) SHALL BE CONSTRUED TO MAKE UNLAWFUL, WHERE
NOT OTHERWISE UNLAWFUL, ANY PRIMARY STRIKE OR PRIMARY PICKETING."  THE
COURT OF APPEALS REVERSED.  HELD:

1.  PRIMARY PICKETING UNDER SEC. 8(B)(4) INCLUDES THE RIGHT, DURING A
STRIKE, TO PICKET AN ENTRANCE RESERVED FOR EMPLOYEES OF NEUTRAL
DELIVERY MEN FURNISHING ROUTINE SERVICE ESSENTIAL TO THE EMPLOYER
PLANT'S NORMAL OPERATIONS.  ELECTRICAL WORKERS LOCAL NO. 761 V. LABOR
BOARD, 366 U.S. 667, FOLLOWED.  PICKETING AT THE RAILROAD GATE, WHICH
WAS THE RAIL ENTRANCE GATE TO THE PLANT, IS JUST AS PERMISSIBLE AS AT A
GATE OWNED BY THE PLANT.  PP. 493-500. 

2.  PICKETING DOES NOT BECOME ILLEGAL SECONDARY ACTIVITY SOLELY
BECAUSE IT IS ACCOMPANIED BY THREATS OF VIOLENCE.  PP. 501-502. 

UNITED STEELWORKERS OF AMERICA, AFL-CIO, ET AL. V. NATIONAL LABOR
RELATIONS BOARD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER A UNION VIOLATES SEC.
8(B)(4) OF THE NATIONAL LABOR RELATIONS ACT, (FN1) 49 STAT. 449, AS
AMENDED, BY PICKETING AN ENTRANCE, USED EXCLUSIVELY BY RAILROAD
PERSONNEL, TO A RAILROAD SPUR TRACK LOCATED ON A RIGHT-OF-WAY OWNED BY
THE RAILROAD AND ADJACENT TO THE STRUCK EMPLOYER'S PREMISES. 

ON MARCH 2, 1960, AFTER THE PETITIONING UNION AND THE RESPENDENT
COMPANY, CARRIER CORPORATION, FAILED TO AGREE UPON A COLLECTIVE
BARGAINING CONTRACT THE UNION, WHICH WAS THE CERTIFIED BARGAINING
AGENT, CALLED A STRIKE IN SUPPORT OF ITS DEMANDS.  DURING THE COURSE OF
THE STRIKE THE UNION PICKETED THE SEVERAL ENTRANCES TO THE PLANT. 
ALONG THE SOUTH BOUNDARY OF CARRIER'S PROPERTY WAS A 35-FOOT RAILROAD
RIGHT-OF-WAY USED BY THE RAILROAD FOR DELIVERIES TO CARRIER AND TO
THREE OTHER COMPANIES IN THE AREA, GENERAL ELECTRIC, WESTERN ELECTRIC,
AND BRACE-MUELLER-HUNTLEY.  THE RAILROAD SPUR RAN ACROSS THOMPSON ROAD,
A PUBLIC THOROUGHFARE WHICH BOUNDED CARRIER'S PROPERTY ON THE WEST, AND
THROUGH A GATE IN A CONTINUOUS CHAIN-LINK FENCE WHICH ENCLOSED BOTH THE
PROPERTY OF CARRIER CORPORATION AND THE RAILROAD RIGHT-OF-WAY.  THE
GATE WAS LOCKED WHEN THE SPUR WAS NOT IN USE AND WAS ACCESSIBLE ONLY TO
RAILROAD EMPLOYEES.  THE PICKETING WITH WHICH WE ARE CONCERNED OCCURRED
AT THIS GATE. 

BETWEEN MARCH 2 AND MARCH 10, RAILROAD PERSONNEL MADE SEVERAL TRIPS
THROUGH THE GATE FOR THE PURPOSE OF SWITCHING OUT CARS FOR GENERAL
ELECTRIC, WESTERN ELECTRIC AND BRACE-MUELLER-HUNTLEY, AND ALSO TO
SUPPLY COAL TO CARRIER AND GENERAL ELECTRIC.  (FN2)  ON MARCH 11 A
SWITCH ENGINE MANNED BY A REGULAR SWITCHING CREW MADE ONE TRIP SERVING
THE THREE NONSTRUCK CORPORATIONS.  IT THEN RETURNED, THIS TIME MANNED
BY SUPERVISORY PERSONNEL, WITH 14 EMPTY BOXCARS.  THE PICKETS, BEING
AWARE THAT THESE CARS WERE DESTINED FOR USE BY CARRIER, MILLED AROUND
THE ENGINE FROM THE TIME IT REACHED THE WESTERN SIDE OF THOMPSON ROAD,
ATTEMPTING TO IMPEDE ITS PROGRESS.  BY INCHING ITS WAY ACROSS THE ROAD,
HOWEVER, THE LOCOMOTIVE SUCCEEDED IN REACHING AND ENTERING THE GATE. 
AFTER UNCOUPLING THE EMPTIES JUST INSIDE THE RAILROAD RIGHT-OF-WAY, FOR
FUTURE USE BY CARRIER, THE ENGINE PICKED UP 16 MORE CARS WHICH CARRIER
WANTED SHIPPED OUT AND MADE ITS WAY BACK TOWARD THE GATE.  THIS TIME
RESISTANCE FROM THE PICKETING STRIKERS WAS MORE INTENSE.  SOME OF THE
MEN STOOD ON THE FOOTBOARD OF THE ENGINE, OTHERS PROSTRATED THEMSELVES
ACROSS THE RAILS AND ONE UNION OFFICIAL PARKED HIS CAR ON THE TRACK. 
INVECTIVE AND THREATS WERE DIRECTED TOWARD THE OPERATORS OF THE TRAIN,
AND ONLY AFTER THE PICKETS WERE DISPERSED BY DEPUTIES OF THE ONONDAGA
COUNTY SHERIFF'S OFFICE WAS IT ABLE TO PASS. 

ACTING UPON CHARGES FILED BY CARRIER, THE REGIONAL DIRECTOR OF THE
NATIONAL LABOR RELATIONS BOARD ISSUED A COMPLAINT AGAINST THE
INTERNATIONAL AND LOCAL UNION ORGANIZATIONS AND INDIVIDUAL OFFICIALS OF
EACH, ALLEGING VIOLATIONS OF SECS. 8(B)(1)(A) AND 8(B)(4)(I) AND
(II)(B) OF THE NATIONAL LABOR RELATIONS ACT.  THE TRIAL EXAMINER FOUND
THE UNION IN VIOLATION OF BOTH SECTIONS AND RECOMMENDED APPROPRIATE
CEASE-AND-DESIST ORDERS.  THE NATIONAL LABOR RELATIONS BOARD SUSTAINED
THE EXAMINER'S FINDING THAT AN UNFAIR LABOR PRACTICE HAD BEEN COMMITTED
UNDER SEC. 8(B)(1)(A) AND ENTERED AN ORDER ACCORDINGLY.  THE UNION DOES
NOT CONTEST THIS DETERMINATION BY THE BOARD.  THE BOARD FURTHER
CONCLUDED, HOWEVER, THAT THE PICKETING WAS PRIMARY ACTIVITY AND
THEREFORE SAVED FROM SEC. 8(B)(4)(B)'S PROSCRIPTION BY THE PROVISO THAT
"NOTHING CONTAINED IN THIS CLAUSE (B) SHALL BE CONSTRUED TO MAKE
UNLAWFUL, WHERE NOT OTHERWISE UNLAWFUL, ANY PRIMARY STRIKE OR PRIMARY
PICKETING."  NOTING THE CONCEDED FACT THAT THE DELIVERIES AND REMOVALS
BY THE RAILROAD IN THIS CASE WERE MADE IN CONNECTION WITH THE NORMAL
OPERATIONS OF THE STRUCK EMPLOYER, THE BOARD REGARDED AS DISPOSITIVE
THIS COURT'S DECISION IN ELECTRICAL WORKERS LOCAL NO. 761 V. LABOR
BOARD, 366 U.S. 667, THE GENERAL ELECTRIC CASE.  132 N.L.R.B. 127. 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED THE BOARD'S
DECISION ON THE GROUND THAT THE PICKETING AT THE RAILROAD GATE WAS
DIRECTED SOLELY AT THE NEUTRAL RAILROAD EMPLOYEES AND COULD NOT BE
REGARDED AS INCIDENT TO WHAT THE COURT CONSIDERED THE ONLY LEGITIMATE
UNION OBJECTIVE: PUBLICIZING THE LABOR DISPUTE TO THE EMPLOYEES
INVOLVED THEREIN, THOSE WORKING FOR CARRIER.  THIS COURT'S HOLDING IN
GENERAL ELECTRIC WAS DEEMED INAPPOSITE SINCE THE GATE IN THE PRESENT
CASE IS LOCATED ON PREMISES BELONGING TO THE NEUTRAL EMPLOYER.  311
F.2D 135.  CHIEF JUDGE LUMBARD DISSENTED.  BECAUSE OF THE ASSERTED
CONFLICT WITH GENERAL ELECTRIC AND THE IMPORTANCE OF THE PROBLEM TO THE
NATIONAL POLICY WE GRANTED CERTIORARI.  373 U.S. 908.  WE REVERSE THE
DECISION OF THE COURT OF APPEALS. 

THE ACTIVITIES OF THE UNION IN THIS CASE CLEARLY FALL WITHIN CLAUSES
(I) AND (II) OF SEC. 8(B)(4); LIKEWISE THE OBJECTIVE, TO INDUCE THE
RAILROAD TO CEASE PROVIDING FREIGHT SERVICE TO CARRIER FOR THE DURATION
OF THE STRIKE, IS COVERED BY THE LANGUAGE OF SUBSECTION (B), EXCLUSIVE
OF THE PROVISO.  THE QUESTION WE HAVE IS WHETHER THE ACTIVITIES OF THE
UNION, ALTHOUGH LITERALLY WITHIN THE DEFINITION OF SECONDARY ACTIVITIES
CONTAINED IN CLAUSES (I) AND (II) OF SEC. 8(B)(4), ARE NEVERTHELESS
WITHIN THE PROTECTED AREA OF PRIMARY PICKETING CARVED OUT BY CONGRESS
IN THE PROVISO TO SUBSECTION (B). 

THE DIVIDING LINE BETWEEN FORBIDDEN SECONDARY ACTIVITY AND PROTECTED
PRIMARY ACTIVITY HAS BEEN THE SUBJECT OF INTENSE LITIGATION BOTH BEFORE
AND AFTER THE 1959 AMENDMENTS TO SEC. 8(B)(4), WHICH BROADENED THE
COVERAGE OF THE SECTION BUT ALSO ADDED THE EXPRESS EXCEPTIONS FOR THE
PRIMARY STRIKE AND PRIMARY PICKETING.  WE NEED NOT DETAIL THE COURSE OF
THIS SOMETIMES CONFUSING LITIGATION; FOR IN THE GENERAL ELECTRIC CASE,
SUPRA, THE COURT UNDERTOOK TO SURVEY THE CASES DEALING WITH PICKETING
AT BOTH PRIMARY AND SECONDARY SITES AND THE RESULT REACHED IN THAT CASE
LARGELY GOVERNS THIS ONE.  IN THE GENERAL ELECTRIC CASE, BECAUSE THE
UNION'S OBJECT WAS TO ENMESH "EMPLOYEES OF THE NEUTRAL EMPLOYERS IN ITS
DISPUTE" WITH THE PRIMARY EMPLOYER, THE BOARD ORDERED THE UNION TO
CEASE PICKETING A SEPARATE GATE USED EXCLUSIVELY BY EMPLOYEES OF
CERTAIN INDEPENDENT CONTRACTORS WHO HAD BEEN DOING WORK ON THE PRIMARY
PREMISES ON A REGULAR AND CONTINUOUS BASIS FOR A CONSIDERABLE PERIOD OF
TIME.  123 N.L.R.B. 1547.  IN THIS COURT, THE BOARD CONCEDED THAT WHEN
THE STRUCK PREMISES ARE OCCUPIED BY THE PRIMARY EMPLOYER ALONE, THE
RIGHT OF THE UNION TO ENGAGE IN PRIMARY ACTIVITY AT OR IN CONNECTION
WITH THE PRIMARY PREMISES MAY BE GIVEN UNLIMITED EFFECT - "ALL UNION
ATTEMPTS, BY PICKETING AND ALLIED MEANS, TO CUT OFF DELIVERIES,
PICKUPS, AND EMPLOYMENT AT THE PRIMARY EMPLOYER'S PLANT WILL BE
REGARDED AS PRIMARY AND OUTSIDE THE PURVIEW OF SECTION 8(B)(4)(A)." 
(FN3)  BUT THE BOARD INSISTED THAT THE FACTS PRESENTED A COMMON SITUS
PROBLEM SINCE THE REGULAR WORK OF THE CONTRACTORS WAS CONTINUOUSLY DONE
ON THE PRIMARY PREMISES AND HENCE THE RULES OF THE MOORE DRY DOCK CASE
(FN4) SHOULD BE APPLIED.  THE UNION, ON THE OTHER HAND, ARGUED THAT NO
PICKETING AT THE PRIMARY PREMISES SHOULD BE CONSIDERED AS SECONDARY
ACTIVITY. 

THE COURT ACCEPTED THE APPROACH NEITHER OF THE BOARD NOR OF THE
UNION.  THE LOCATION OF THE PICKETING, THOUGH IMPORTANT, WAS NOT DEEMED
OF DECISIVE SIGNIFICANCE; PICKETING WAS NOT TO BE PROTECTED SIMPLY
BECAUSE IT OCCURRED AT THE SITE OF THE PRIMARY EMPLOYER'S PLANT. 
NEITHER, HOWEVER, WAS ALL PICKETING FORBIDDEN WHERE OCCURRING AT GATES
NOT USED BY PRIMARY EMPLOYEES.  THE LEGALITY OF SEPARATE GATE PICKETING
DEPENDED UPON THE TYPE OF WORK BEING DONE BY THE EMPLOYEES WHO USED
THAT GATE; IF THE DUTIES OF THOSE EMPLOYEES WERE CONNECTED WITH THE
NORMAL OPERATIONS OF THE EMPLOYER, PICKETING DIRECTED AT THEM WAS
PROTECTED PRIMARY ACTIVITY, BUT IF THEIR WORK WAS UNRELATED TO THE DAY
TO-DAY OPERATION OF THE EMPLOYER'S PLANT, THE PICKETING WAS AN UNFAIR
LABOR PRACTICE.  THE ORDER OF THE NLRB WAS VACATED TO PERMIT
DETERMINATION OF THE CASE IN ACCORDANCE WITH THE PROPER TEST. 

IT SEEMS CLEAR THAT THE REJECTION OF THE BOARD'S POSITION IN GENERAL
ELECTRIC LEAVES NO ROOM FOR THE EVEN NARROWER APPROACH OF THE COURT OF
APPEALS IN THIS CASE, WHICH IS THAT THE PICKETING AT THE SITE OF A
STRIKE COULD BE DIRECTED AT SECONDARY EMPLOYEES ONLY WHERE INCIDENTAL
TO APPEALS TO PRIMARY EMPLOYEES.  UNDER THIS TEST, NO PICKETING AT
GATES USED ONLY BY EMPLOYEES OF DELIVERY MEN WOULD BE PERMITTED, A
RESULT EXPRESSLY DISAPPROVED BY THE COURT IN GENERAL ELECTRIC:  "ON THE
OTHER HAND, IF A SEPARATE GATE WERE DEVISED FOR REGULAR PLANT
DELIVERIES, THE BARRING OF PICKETING AT THAT LOCATION WOULD MAKE A
CLEAR INVASION ON TRADITIONAL PRIMARY ACTIVITY OF APPEALING TO NEUTRAL
EMPLOYEES WHOSE TASKS AID THE EMPLOYER'S EVERYDAY OPERATIONS."  366
U.S., AT 680-681. 

ALTHOUGH THE PICKETING IN THE GENERAL ELECTRIC CASE OCCURRED PRIOR TO
THE 1959 AMENDMENTS TO SEC. 8(B)(4), THE DECISION WAS RENDERED IN 1961
AND THE COURT BOTTOMED ITS DECISION UPON THE AMENDED LAW AND ITS
LEGISLATIVE HISTORY.  (FN5) WE THINK GENERAL ELECTRIC'S CONSTRUCTION OF
THE PROVISO TO SEC. 8(B)(4)(B) IS SOUND AND WE WILL NOT DISTURB IT.
THE PRIMARY STRIKE, WHICH IS PROTECTED BY THE PROVISO, IS AIMED AT
APPLYING ECONOMIC PRESSURE BY HALTING THE DAY-TO-DAY OPERATIONS OF THE
STRUCK EMPLOYER.  BUT CONGRESS NOT ONLY PRESERVED THE RIGHT TO STRIKE;
IT ALSO SAVED "PRIMARY PICKETING" FROM THE SECONDARY BAN.  PICKETING
HAS TRADITIONALLY BEEN A MAJOR WEAPON TO IMPLEMENT THE GOALS OF A
STRIKE AND HAS CHARACTERISTICALLY BEEN AIMED AT ALL THOSE APPROACHING
THE SITUS WHOSE MISSION IS SELLING, DELIVERING OR OTHERWISE
CONTRIBUTING TO THE OPERATIONS WHICH THE STRIKE IS ENDEAVORING TO
HALT.  IN LIGHT OF THIS TRADITIONAL GOAL OF PRIMARY PRESSURES WE THINK
CONGRESS INTENDED TO PRESERVE THE RIGHT TO PICKET DURING A STRIKE A
GATE RESERVED FOR EMPLOYEES OF NEUTRAL DELIVERY MEN FURNISHING DAY-TO
DAY SERVICE ESSENTIAL TO THE PLANT'S REGULAR OPERATIONS.  (FN6) 

NOR MAY THE GENERAL ELECTRIC CASE BE PUT ASIDE FOR THE REASON THAT
THE PICKETED GATE IN THE PRESENT CASE WAS LOCATED ON PROPERTY OWNED BY
NEW YORK CENTRAL RAILROAD AND NOT UPON PROPERTY OWNED BY THE PRIMARY
EMPLOYER.  THE LOCATION OF THE PICKETING IS AN IMPORTANT BUT NOT
DECISIVE FACTOR, AND IN THIS CASE WE AGREE WITH JUDGE LUMBARD THAT THE
LOCATION OF THE PICKETED GATE UPON NEW YORK CENTRAL PROPERTY HAS
LITTLE, IF ANY, SIGNIFICANCE: 

"IN THIS CASE, IT IS UNDISPUTED THAT THE RAILROAD'S OPERATIONS FOR
CARRIER WERE IN FURTHERANCE OF CARRIER'S NORMAL BUSINESS.  IT IS
EQUALLY CLEAR FROM THE RECORD THAT THE PICKETING EMPLOYEES MADE NO
ATTEMPT TO INTERFERE WITH ANY OF THE RAILROAD'S OPERATIONS FOR PLANTS
OTHER THAN CARRIER.  THE RAILROAD EMPLOYEES WERE NOT ENCOURAGED TO, NOR
DID THEY, REFUSE TO SERVE THE OTHER PLANTS.  THE PICKETING WAS DESINGED
TO ACCOMPLISH NO MORE THAN PICKETING OUTSIDE ONE OF CARRIER'S OWN
DELIVERY ENTRANCES MIGHT HAVE ACCOMPLISHED BECAUSE THE FENCE
SURROUNDING THE RAILROAD'S RIGHT OF WAY WAS A CONTINUANCE OF THE FENCE
SURROUNDING THE CARRIER PLANT, THERE WAS NO OTHER PLACE WHERE THE UNION
COULD HAVE BROUGHT HOME TO THE RAILROAD WORKERS SERVICING CARRIER ITS
DISPUTE WITH CARRIER."  311 F.2D 135, 154. 

THE RAILROAD GATE ADJOINED COMPANY PROPERTY AND WAS IN FACT THE
RAILROAD ENTRANCE GATE TO THE CARRIER PLANT.  FOR THE PURPOSES OF SEC.
8(B)(4) PICKETING AT A SITUS SO PROXIMATE AND RELATED TO THE EMPLOYER'S
DAY-TO-DAY OPERATIONS IS NO MORE ILLEGAL THAN IF IT HAD OCCURRED AT A
GATE OWNED BY CARRIER. 

CARRIER, HOWEVER, HAS ANOTHER ARGUMENT:  HOLDING THIS PICKETING
PROTECTED THWARTS THE PURPOSE OF THE 1959 AMENDMENT TO BRING RAILROADS
WITHIN THE PROTECTION OF SEC. 9(B)(4).  THE DEFINITIONS OF "EMPLOYER"
AND "EMPLOYEE" IS SECS. 2(2) AND 2(3) OF THE ACT SPECIFICALLY EXCLUDE
"ANY PERSON SUBJECT TO THE RAILWAY LABOR ACT" AND THE EMPLOYEES OF ANY
SUCH "PERSON."  PRIOR TO 1959, SEC. 8(B)(4) PROHIBITED SECONDARY
INDUCEMENTS TO "THE EMPLOYEES" OF ANY "EMPLOYER" AND THERE AROSE A
CONFLICT OF AUTHORITY BETWEEN THE BOARD AND SEVERAL COURTS OF APPEALS
AS TO WHETHER OR NOT THE SECONDARY BOYCOTT PROVISIONS APPLIED TO ANY
APPEALS TO RAILROAD EMPLOYEES.  (FN7)  CONGRESS RESOLVED THIS QUESTION
IN 1959 BY REVISING SEC. 8(B)(4) TO PROSCRIBE INDUCEMENT OF SECONDARY
WORK STOPPAGES BY "ANY INDIVIDUAL EMPLOYED BY ANY PERSON."  THERE IS NO
INDICATION WHATEVER THAT CONGRESS INTENDED BY THE REVISION TO DO MORE
THAN TO ELIMINATE THE UNCERTAINTY DERIVING FROM THE WORDS "EMPLOYER"
AND "EMPLOYEE" AND THEREBY TO EXTEND TO RAILROADS THE SAME PROTECTIONS
WHICH OTHER EMPLOYERS ENJOYED.  OUR HOLDING DOES NOT DEROGATE FROM THIS
EQUALITY OF TREATMENT.  ON THE CONTRARY, THE RULE FOR WHICH CARRIER
CONTENDS WOULD PLACE THE RAILROAD ON A BETTER FOOTING THAN ALL OTHER
EMPLOYERS WHO DO BUSINESS WITH THE STRUCK PLANT.  IT WOULD DISTINGUISH
BETWEEN PICKETING AN ENTRANCE TO A STRUCK PLANT WHICH IS OWNED BY THE
PRIMARY EMPLOYER AND PICKETING A GATE WHICH BY DESIGN OR OTHERWISE HAD
BEEN CONVEYED TO A NEUTRAL FURNISHING DELIVERY SERVICE, AN ANOMALY
WHICH WE DO NOT BELIEVE CONGRESS INTENDED.    FINALLY, WE REJECT
CARRIER'S ARGUMENT THAT WHATEVER THE RULE MAY BE IN THE ORDINARY CASE
OF SEPARATE GATE PICKETING, THE PICKETING OF THE RAILROAD GATE IN THIS
CASE WAS VIOLATIVE OF SEC. 8(B)(4) BECAUSE IT WAS ACCOMPANIED BY
THREATS AND VIOLENCE.  UNDER SEC. 8(B)(4) THE DISTINCTION BETWEEN
PRIMARY AND SECONDARY PICKETING CARRIED ON AT A SEPARATE GATE
MAINTAINED ON THE PREMISES OF THE PRIMARY EMPLOYER, DOES NOT REST UPON
THE TYPE OF WORK BEING DONE BY THE PICKETED SECONDARY EMPLOYEES.  SUCH
PICKETING DOES NOT BECOME ILLEGAL SECONDARY ACTIVITY WHEN VIOLENCE IS
INVOLVED BUT ONLY WHEN IT INTERFERES WITH BUSINESS INTERCOURSE NOT
CONNECTED WITH THE ORDINARY OPERATIONS OF THE EMPLOYER.  (FN8)  THIS IS
NOT TO SAY, OF COURSE, THAT VIOLENT PRIMARY PICKETING IS IN ALL
RESPECTS LEGAL BUT ONLY THAT IT IS NOT FORBIDDEN BY SEC. 8(B)(4); IT
WOULD ESCAPE NEITHER THE PROVISIONS OF THE FEDERAL LAW NOR THE LOCAL
LAW IF VIOLATIVE THEREOF. 

THIS IS ALL, WE THINK, THAT WAS INTENDED BY THE PROVISO TO SEC.
8(B)(4) WHICH PROVIDES THAT NOTHING IN SUBSECTION (B) "SHALL BE
CONSTRUED TO MAKE UNLAWFUL, WHERE NOT OTHERWISE UNLAWFUL, ANY PRIMARY
STRIKE OR PRIMARY PICKETING."  IT IS POSSIBLE TO READ THIS LANGUAGE TO
MEAN THAT THE PROVISO DOES NOT SAVE FROM PROSCRIPTION UNDER SEC.
8(B)(4) UNION ACTIVITY VIOLATIVE OF OTHER LAWS, BUT THIS INTERPRETATION
WOULD CONDEMN AS SECONDARY CONDUCT ANY AND ALL PICKETING DIRECTED
TOWARD NEUTRAL EMPLOYERS SO LONG AS THE CONDUCT, AS IN THE CASE OF
VIOLENCE, WAS FORBIDDEN BY SOME OTHER LAW.  IN OUR VIEW, THE WORDS
"WHERE NOT OTHERWISE UNLAWFUL" WERE INSERTED ONLY TO MAKE CLEAR THAT
THE PROVISO, WHILE EXCLUDING THE CONDUCT FROM THE SEC. 8(B)(4)
SANCTIONS DID NOT ALSO LEGALIZE IT UNDER OTHER LAWS, STATE OR FEDERAL. 
THE LEGALITY OF VIOLENT PICKETING, IF "PRIMARY," MUST BE DETERMINED
UNDER OTHER SECTIONS OF THE STATUTE OR UNDER STATE LAW.  REVERSED. 

FN1  SECTION 8(B)(4) PROVIDES IN PERTINENT PART AS FOLLOWS: 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

     *         *         *         *       * 

"(4)(I)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE,
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY
PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE
IN EITHER CASE AN OBJECT THEREOF IS: 

     *         *         *         *         * 

"(B)  FORCING OR REQUIRING ANY PERSON TO CEASE USING, SELLING,
HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY
OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING BUSINESS
WITH ANY OTHER PERSON, OR FORCING OR REQUIRING ANY OTHER EMPLOYER TO
RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE REPRESENTATIVE OF
HIS EMPLOYEES UNLESS SUCH LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE
REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS OF SECTION 159 OF
THIS TITLE:  PROVIDED, THAT NOTHING CONTAINED IN THIS CLAUSE (B) SHALL
BE CONSTRUED TO MAKE UNLAWFUL, WHERE NOT OTHERWISE UNLAWFUL, ANY
PRIMARY STRIKE OR PRIMARY PICKETING."  29 U.S.C. (SUPP. IV) SEC.
158(B)(4). 

FN2  THE UNION MADE NO OBJECTION TO THE DELIVERIES OF COAL TO
CARRIER, SINCE THE NONSTRUCK GENERAL ELECTRIC PLANT OBTAINED ITS COAL
FROM CARRIER. 

FN3  BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD, ELECTRICAL WORKERS
LOCAL 761 V. LABOR BOARD, NO. 321, OCTOBER TERM, 1960, P. 31. 

FN4 SAILORS' UNION OF THE PACIFIC, 92 N.L.R.B. 547. 

FN5  THE COURT SAID:  "THE 1959 AMENDMENTS TO THE NATIONAL LABOR
RELATIONS ACT, WHICH REMOVED THE WORD 'CONCERTED' FROM THE BOYCOTT
PROVISIONS, INCLUDED A PROVISO THAT 'NOTHING CONTAINED IN THIS CLAUSE
(B) SHALL BE CONSTRUED TO MAKE UNLAWFUL, WHERE NOT OTHERWISE UNLAWFUL,
ANY PRIMARY STRIKE OR PRIMARY PICKETING.'  29 U.S.C. (SUPP. I, 1959)
SEC. 158(B)(4)(B).  THE PROVISO WAS DIRECTED AGAINST THE FEAR THAT THE
REMOVAL OF 'CONCERTED' FROM THE STATUTE MIGHT BE INTERPRETED SO THAT
'THE PICKETING AT THE FACTORY VIOLATES SECTION 8(B)(4)(A) BECAUSE THE
PICKETS INDUCE THE TRUCK DRIVERS EMPLOYED BY THE TRUCKER NOT TO PERFORM
THEIR USUAL SERVICES WHERE AN OBJECT IS TO COMPEL THE TRUCKING FIRM NOT
TO DO BUSINESS WITH THE  ...  MANUFACTURER DURING THE STRIKE.' 
ANALYSIS OF THE BILL PREPARED BY SENATOR KENNEDY AND REPRESENTATIVE
THOMPSON, 105 CONG. REC. 16589."  366 U.S., AT 681. 

FN6  SEE H.R. REP. NO. 741, ON H.R. 8342, 86TH CONG., 1ST SESS., 21,
80; H.R. REP. NO. 1147, ON S. 1555, 86TH CONG., 1ST SESS., 38; 2 LEG. 
HIST.  OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959,
1575-1576, 1707, 1857. 

FN7  COMPARE INTERNATIONAL BROTHERHOOD OF TEAMSTERS (THE
INTERNATIONAL RICE MILLING CO.), 84 N.L.R.B. 360; INTERNATIONAL
WOODWORKERS OF AMERICA (SMITH LUMBER CO.), 116 N.L.R.B. 1756;
INTERNATIONAL BROTHERHOOD OF TEAMSTERS (THE ALLING & CORY COMPANY), 121
N.L.R.B. 315; AND LUMBER & SAWMILL WORKERS LOCAL UNION 2409 (GREAT
NORTHERN RAILWAY CO.), 122 N.L.R.B. 1403, WITH INTERNATIONAL RICE
MILLING CO. V. LABOR BOARD, 183 F.2D 21 (C.A. 5TH CIR.); SMITH LUMBER
CO. V. LABOR BOARD, 246 F.2D 129 (C.A. 5TH CIR.); GREAT NORTHERN
RAILWAY CO. V. LABOR BOARD, 272 F.2D 741 (C.A. 9TH CIR.). 

FN8  COMPARE LABOR BOARD V. RICE MILLING CO., 341 U.S. 665, 672, IN
WHICH THE COURT SAID:  "IN THE INSTANT CASE THE VIOLENCE ON THE PICKET
LINE IS NOT MATERIAL.  THE COMPLAINT WAS NOT BASED UPON THAT VIOLENCE,
AS SUCH.  TO REACH IT, THE COMPLAINT MORE PROPERLY WOULD HAVE RELIED
UPON SEC. 8(B)(1)(A) OR WOULD HAVE ADDRESSED ITSELF TO LOCAL
AUTHORITIES.  THE SUBSTITUTION OF VIOLENT COERCION IN PLACE OF PEACEFUL
PERSUASION WOULD NOT IN ITSELF BRING THE COMPLAINED-OF CONDUCT INTO
CONFLICT WITH SEC. 8(B)(4).  IT IS THE OBJECT OF UNION ENCOURAGEMENT
THAT IS PROSCRIBED BY THAT SECTION, RATHER THAN THE MEANS ADOPTED TO
MAKE IT FELT." 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















JACKSON V. UNITED STATES 376 U.S. 503 


NO. 361.  ARGUED MARCH 4, 1964.  - DECIDED MARCH 23, 1964.  - 317 F.2D
821, AFFIRMED. 


FOURTEEN MONTHS AFTER HER HUSBAND'S DEATH, A STATE COURT AWARDED HIS
WIDOW A SUPPORT AND MAINTENANCE ALLOWANCE PAYABLE MONTHLY FOR NOT TO
EXCEED TWENTY-FOUR MONTHS FROM DATE OF DECEDENT'S DEATH.  THE WIDOW
SURVIVED THE PERIOD, UNREMARRIED, AND UNDER STATE LAW WAS ENTITLED TO
AND DID RECEIVE THE PAYMENTS.  DEDUCTION OF ALL THE PAYMENTS ON THE
FEDERAL ESTATE TAX RETURN, AS PART OF THE MARITAL DEDUCTION PROVIDED BY
SEC. 812(E) OF THE INTERNAL REVENUE CODE OF 1939, WAS DISALLOWED BY THE
COMMISSIONER OF INTERNAL REVENUE.  THE DISTRICT COURT HELD THAT THE
WIDOW'S ALLOWANCE WAS A "TERMINABLE INTEREST" UNDER SEC. 812(E)(1)(B)
AND THUS NOT DEDUCTIBLE, AND THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  SINCE A WIDOW'S RIGHT TO THE ALLOWANCE UNDER THE STATE LAW IS
DEFEATED BY HER DEATH OR REMARRIAGE, HER INTEREST IS TERMINABLE UNDER
SEC. 812(E)(1)(B).  PP. 503-506. 

2.  QUALIFICATION FOR THE MARITAL DEDUCTION, INCLUDING THE WIDOW'S
ALLOWANCE, IS DETERMINED AS OF TIME OF DEATH.  CUNHA'S ESTATE V.
COMMISSIONER, 279 F.2D 292; UNITED STATES V. QUIVEY, 292 F.2D 252,
FOLLOWED.  PP. 507-511. 

JACKSON ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

SINCE 1948 SEC. 812(E)(1)(A) OF THE INTERNAL REVENUE CODE OF 1939 HAS
ALLOWED A "MARITAL DEDUCTION" FROM A DECEDENT'S GROSS TAXABLE ESTATE
FOR THE VALUE OF INTERESTS IN PROPERTY PASSING FROM THE DECEDENT TO HIS
SURVIVING SPOUSE.  (FN1)  SUBSECTION (B) ADDS THE QUALIFICATION,
HOWEVER, THAT INTERESTS DEFINED THEREIN AS "TERMINABLE" SHALL NOT
QUALIFY AS AN INTEREST IN PROPERTY TO WHICH THE MARITAL DEDUCTION
APPLIES.  (FN2)  THE QUESTION RAISED BY THIS CASE IS WHETHER THE
ALLOWANCE PROVIDED BY CALIFORNIA LAW FOR THE SUPPORT OF A WIDOW DURING
THE SETTLEMENT OF HER HUSBAND'S ESTATE IS A TERMINABLE INTEREST. 

PETITIONERS ARE THE WIDOW-EXECUTRIX AND TESTAMENTARY TRUSTEE UNDER
THE WILL OF GEORGE RICHARDS WHO DIED A RESIDENT OF CALIFORNIA ON MAY
27, 1951.  ACTING UNDER THE PROBATE CODE OF CALIFORNIA, THE STATE
COURT, ON JUNE 30, 1952, ALLOWED MRS. RICHARDS THE SUM OF $3,000 PER
MONTH FROM THE CORPUS OF THE ESTATE FOR HER SUPPORT AND MAINTENANCE,
BEGINNING AS OF MAY 27, 1951, AND CONTINUING FOR A PERIOD OF 24 MONTHS
FROM THAT DATE.  UNDER THE TERMS OF THE ORDER, AN ALLOWANCE OF $42,000
HAD ACCRUED DURING THE 14 MONTHS SINCE HER HUSBAND'S DEATH.  THIS
AMOUNT, PLUS AN ADDITIONAL $3,000 PER MONTH FOR THE REMAINDER OF THE
TWO-YEAR PERIOD, MAKING A TOTAL OF $72,000, WAS IN FACT PAID TO MRS.
RICHARDS AS WIDOW'S ALLOWANCE. 

ON THE FEDERAL ESTATE TAX RETURN FILED ON BEHALF OF THE ESTATE, THE
FULL $72,000 WAS CLAIMED AS A MARITAL DEDUCTION UNDER SEC. 812(E) OF
THE INTERNAL REVENUE CODE OF 1939.  THE DEDUCTION WAS DISALLOWED, AS
WAS A CLAIM FOR REFUND AFTER PAYMENT OF THE DEFICIENCY, AND THE PRESENT
SUIT FOR REFUND WAS THEN BROUGHT IN THE DISTRICT COURT.  THE DISTRICT
COURT GRANTED SUMMARY JUDGMENT FOR THE UNITED STATES, HOLDING, ON THE
AUTHORITY OF CUNHA'S ESTATE V. COMMISSIONER, 279 F.2D 292, THAT THE
ALLOWANCE TO THE WIDOW WAS A TERMINABLE INTEREST AND NOT DEDUCTIBLE
UNDER THE MARITAL PROVISION OF THE INTERNAL REVENUE CODE.  THE COURT OF
APPEALS AFFIRMED, 317 F.2D 821, AND WE BROUGHT THE CASE HERE BECAUSE OF
AN ASSERTED CONFLICT BETWEEN THE DECISION BELOW AND THAT OF THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT IN UNITED STATES V. FIRST NATIONAL
BANK & TRUST CO. OF AUGUSTA, 297 F.2D 312.  375 U.S. 894.  FOR THE
REASONS GIVEN BELOW, WE AFFIRM THE DECISION OF THE COURT OF APPEALS. 

IN ENACTING THE REVENUE ACT OF 1948, 62 STAT. 110, WITH ITS PROVISION
FOR THE MARITAL DEDUCTION, CONGRESS LEFT UNDISTURBED SEC. 812(B)(5) OF
THE 1939 CODE, WHICH ALLOWED AN ESTATE TAX DEDUCTION, AS AN EXPENSE OF
ADMINISTRATION, FOR AMOUNTS "REASONABLY REQUIRED AND ACTUALLY EXPENDED
FOR THE SUPPORT DURING THE SETTLEMENT OF THE ESTATE OF THOSE DEPENDENT
UPON THE DECEDENT."  26 U.S.C. (1946 ED.)  SEC. 812(B)(5).  AS THE
LEGISLATIVE HISTORY SHOWS, SUPPORT PAYMENTS UNDER SEC. 812(B)(5) WERE
NOT TO BE TREATED AS PART OF THE MARITAL DEDUCTION ALLOWED BY SEC.
812(E)(1).  (FN3)  THE REVENUE ACT OF 1950, 64 STAT. 906, HOWEVER,
REPEALED SEC. 812(B)(5) BECAUSE, AMONG OTHER REASONS, CONGRESS BELIEVED
THE SECTION RESULTED IN DISCRIMINATIONS IN FAVOR OF STATES HAVING
LIBERAL FAMILY ALLOWANCES.  (FN4) THEREAFTER ALLOWANCES PAID FOR THE
SUPPORT OF A WIDOW DURING THE SETTLEMENT OF AN ESTATE "HERETOFORE
DEDUCTIBLE UNDER SECTION 812(B) WILL BE ALLOWABLE AS A MARITAL
DEDUCTION SUBJECT TO THE CONDITIONS AND LIMITATIONS OF SECTION
812(E)."  S. REP. NO. 2375, 81ST CONG., 2D SESS., P. 130. 

THE "CONDITIONS AND LIMITATIONS" OF THE MARITAL DEDUCTION UNDER SEC.
812(E) ARE SEVERAL BUT WE NEED CONCERN OURSELVES WITH ONLY ONE ASPECT
OF SEC. 812(E)(1)(B), WHICH DISALLOWS THE DEDUCTION OF "TERMINABLE"
INTERESTS PASSING TO THE SURVIVING SPOUSE.  IT WAS CONCEDED IN THE
COURT OF APPEALS THAT THE RIGHT TO THE WIDOW'S ALLOWANCE HERE INVOLVED
IS AN INTEREST IN PROPERTY PASSING FROM THE DECEDENT WITHIN THE MEANING
OF SEC. 812(E)(3), THAT IT IS AN INTEREST TO WHICH THE TERMINABLE
INTEREST RULE OF SEC. 812(E)(1)(B) IS APPLICABLE, AND THAT THE
CONDITIONS SET FORTH IN (I) AND (II) OF SEC. 812(E)(1)(B) WERE
SATISFIED UNDER THE DECEDENT'S WILL AND CODICILS THERETO.  THE ISSUE,
THEREFORE, IS WHETHER THE INTEREST IN PROPERTY PASSING TO MRS. RICHARDS
AS WIDOW'S ALLOWANCE WOULD "TERMINATE OR FAIL" UPON THE "LAPSE OF TIME,
UPON THE OCCURRENCE OF AN EVENT OR CONTINGENCY, OR UPON THE FAILURE OF
AN EVENT OR CONTINGENCY TO OCCUR." 

WE ACCEPT THE COURT OF APPEALS' DESCRIPTION OF THE NATURE AND
CHARACTERISTICS OF THE WIDOW'S ALLOWANCE UNDER CALIFORNIA LAW.  IN THAT
STATE, THE RIGHT TO A WIDOW'S ALLOWANCE IS NOT A VESTED RIGHT AND
NOTHING ACCRUES BEFORE THE ORDER GRANTING IT.  THE RIGHT TO AN
ALLOWANCE IS LOST WHEN THE ONE FOR WHOM IT IS ASKED HAS LOST THE STATUS
UPON WHICH THE RIGHT DEPENDS.  IF A WIDOW DIES OR REMARRIES PRIOR TO
SECURING AN ORDER FOR A WIDOW'S ALLOWANCE, THE RIGHT DOES NOT SURVIVE
SUCH DEATH OR REMARRIAGE.  THE AMOUNT OF THE WIDOW'S ALLOWANCE WHICH
HAS ACCRUED AND IS UNPAID AT THE DATE OF DEATH OF THE WIDOW IS PAYABLE
TO HER ESTATE BUT THE RIGHT TO FUTURE PAYMENTS ABATES UPON HER DEATH. 
THE REMARRIAGE OF A WIDOW SUBSEQUENT TO AN ORDER FOR AN ALLOWANCE
LIKEWISE ABATES HER RIGHT TO FUTURE PAYMENTS.  317 F.2D 821, 825. 

IN LIGHT OF THESE CHARACTERISTICS OF THE CALIFORNIA WIDOW'S
ALLOWANCE, MRS. RICHARDS DID NOT HAVE AN INDEFEASIBLE INTEREST IN
PROPERTY AT THE MOMENT OF HER HUSBAND'S DEATH SINCE EITHER HER DEATH OR
REMARRIAGE WOULD DEFEAT IT.  IF THE ORDER FOR SUPPORT ALLOWANCE HAD
BEEN ENTERED ON THE DAY OF HER HUSBAND'S DEATH, HER DEATH OR REMARRIAGE
AT ANY TIME WITHIN TWO YEARS THEREAFTER WOULD TERMINATE THAT PORTION OF
THE INTEREST ALLOCABLE TO THE REMAINDER OF THE TWO-YEAR PERIOD.  AS OF
THE DATE OF MR. RICHARDS' DEATH, THEREFORE, THE ALLOWANCE WAS SUBJECT
TO FAILURE OR TERMINATION "UPON THE OCCURRENCE OF AN EVENT OR
CONTINGENCY."  THAT THE SUPPORT ORDER WAS ENTERED IN THIS CASE 14
MONTHS LATER DOES NOT, IN OUR OPINION, CHANGE THE DEFEASIBLE NATURE OF
THE INTEREST. 

PETITIONERS ASK US TO JUDGE THE TERMINABILITY OF THE WIDOW'S INTEREST
IN PROPERTY REPRESENTED BY HER ALLOWANCE AS OF THE DATE OF THE PROBATE
COURT'S ORDER RATHER THAN AS OF THE DATE OF HER HUSBAND'S DEATH.  THE
COURT'S ORDER, THEY ARGUE, UNCONDITIONALLY ENTITLED THE WIDOW TO
$42,000 IN ACCRUED ALLOWANCE OF WHICH SHE COULD NOT BE DEPRIVED BY
EITHER HER DEATH OR REMARRIAGE.  IT IS TRUE THAT SOME COURTS HAVE
FOLLOWED THIS PATH, (FN5) BUT IT IS DIFFICULT TO ACCEPT AN APPROACH
WHICH WOULD ALLOW A DEDUCTION OF $42,000 ON THE FACTS OF THIS CASE, A
DEDUCTION OF $72,000 IF THE ORDER HAD BEEN ENTERED AT THE END OF TWO
YEARS FROM MR. RICHARDS' DEATH AND NONE AT ALL IF THE ORDER HAD BEEN
ENTERED IMMEDIATELY UPON HIS DEATH.  MOREOVER, JUDGING DEDUCTIBILITY AS
THE DATE OF THE PROBATE COURT'S ORDER IGNORES THE SENATE COMMITTEE'S
ADMONITION THAT IN CONSIDERING TERMINABILITY OF AN INTEREST FOR
PURPOSES OF A MARITAL DEDUCTION "THE SITUATION IS VIEWED AS AT THE DATE
OF THE DECEDENT'S DEATH."  S. REP. NO. 1013, PART 2, 80TH CONG., 2D
SESS., P. 10.  WE PREFER THE COURSE FOLLOWED BY BOTH THE COURT OF
APPEALS FOR THE NINTH CIRCUIT IN CUNHA'S ESTATE, SUPRA, AND BY THE
COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN UNITED STATES V. QUIVEY, 292
F.2D 252.  BOTH COURTS HAVE HELD THE DATE OF DEATH OF THE TESTATOR TO
BE THE CORRECT POINT OF TIME FROM WHICH TO JUDGE THE NATURE OF A
WIDOW'S ALLOWANCE FOR THE PURPOSE OF DECIDING TERMINABILITY AND
DEDUCTIBILITY UNDER SEC. 812(E)(1).  THIS IS IN ACCORD WITH THE RULE
UNIFORMLY FOLLOWED WITH REGARD TO INTERESTS OTHER THAN THE WIDOW'S
ALLOWANCE, THAT QUALIFICATION FOR THE MARITAL DEDUCTION MUST BE
DETERMINED AS OF THE TIME OF DEATH.  (FN6) 

OUR CONCLUSION IS CONFIRMED BY SEC. 812(E)(1)(D), (FN7) WHICH SAVES
FROM THE OPERATION OF THE TERMINABLE-INTEREST RULE INTERESTS WHICH BY
THEIR TERMS MAY (BUT DO NOT IN FACT) TERMINATE ONLY UPON FAILURE OF THE
WIDOW TO SURVIVE HER HUSBAND FOR A PERIOD NOT IN EXCESS OF SIX MONTHS. 
THE PREMISE OF THIS PROVISION IS THAT AN INTEREST PASSING TO A WIDOW IS
NORMALLY TO BE JUDGED AS OF THE TIME OF THE TESTATOR'S DEATH RATHER
THAN AT A LATER TIME WHEN THE CONDITION IMPOSED MAY BE SATISFIED; HENCE
THE NECESSITY TO PROVIDE AN EXCEPTION TO THE RULE IN THE CASE OF A SIX
MONTHS' SURVIVORSHIP CONTINGENCY IN A WILL.  (FN8)  A GIFT CONDITIONED
UPON EIGHT MONTHS' SURVIVORSHIP, RATHER THAN SIX, IS A NONDEDUCTIBLE
TERMINABLE INTEREST FOR REASONS WHICH ALSO DISQUALIFY THE STATUTORY
WIDOW'S ALLOWANCE IN CALIFORNIA WHERE THE WIDOW MUST SURVIVE AND REMAIN
UNMARRIED AT LEAST TO THE DATE OF AN ALLOWANCE ORDER TO BECOME
INDEFEASIBLY ENTITLED TO ANY WIDOW'S ALLOWANCE AT ALL. 

PETITIONERS CONTEND, HOWEVER, THAT THE SOLE PURPOSE OF THE TERMINABLE
INTEREST PROVISIONS OF THE CODE IS TO ASSURE THAT INTERESTS DEDUCTED
FROM THE ESTATE OF THE DECEASED SPOUSE WILL NOT ALSO ESCAPE TAXATION IN
THE ESTATE OF THE SURVIVOR.  THIS ARGUMENT LEADS TO THE CONCLUSION THAT
SINCE IT IS NOW CLEAR THAT UNLESS CONSUMED OR GIVEN AWAY DURING MRS.
RICHARDS' LIFE, THE ENTIRE $72,000 WILL BE TAXED TO HER ESTATE, IT
SHOULD NOT BE INCLUDED IN HER HUSBAND'S. BUT AS WE HAVE ALREADY SEEN,
THERE IS NO PROVISION IN THE CODE FOR DEDUCTING ALL TERMINABLE
INTERESTS WHICH BECOME NONTERMINABLE AT A LATER DATE AND THEREFORE
TAXABLE IN THE ESTATE OF THE SURVIVING SPOUSE IF NOT CONSUMED OR
TRANSFERRED.  THE EXAMPLES CITED IN THE LEGISLATIVE HISTORY MAKE IT
CLEAR THAT THE DETERMINATIVE FACTOR IS NOT TAXABILITY TO THE SURVIVING
SPOUSE BUT TERMINABILITY AS DEFINED BY THE STATUTE.  (FN9)  UNDER THE
VIEW ADVANCED BY PETITIONERS ALL CASH ALLOWANCES ACTUALLY PAID WOULD
FALL OUTSIDE SEC. 812(E)(1)(B); ON TWO DIFFERENT OCCASIONS THE SENATE
HAS REFUSED TO GIVE ITS APPROVAL TO HOUSE-PASSED AMENDMENTS TO THE 1954
CODE WHICH WOULD HAVE MADE THE TERMINABLE-INTEREST RULE INAPPLICABLE TO
ALL WIDOW'S ALLOWANCES ACTUALLY PAID WITHIN SPECIFIED PERIODS OF TIME. 
(FN10) 

WE ARE MINDFUL THAT THE GENERAL GOAL OF THE MARITAL DEDUCTION
PROVISIONS WAS TO ACHIEVE UNIFORMITY OF FEDERAL ESTATE TAX IMPACT
BETWEEN THOSE STATES WITH COMMUNITY PROPERTY LAWS AND THOSE WITHOUT
THEM.  (FN11)  BUT THE DEVICE OF THE MARITAL DEDUCTION WHICH CONGRESS
CHOSE TO ACHIEVE UNIFORMITY WAS KNOWINGLY HEDGED WITH LIMITATIONS,
INCLUDING THE TERMINABLE-INTEREST RULE.  THESE PROVISIONS MAY BE
IMPERFECT DEVICES TO ACHIEVE THE DESIRED END, (FN12) BUT THEY ARE THE
MEANS WHICH CONGRESS CHOSE.   TO THE EXTENT IT WAS THOUGHT DESIRABLE TO
MODIFY THE RIGORS OF THE TERMINABLE-INTEREST RULE, EXCEPTIONS TO THE
RULE WERE WRITTEN INTO THE CODE.  COURTS SHOULD HESITATE TO PROVIDE
STILL ANOTHER EXCEPTION BY STRAYING SO FAR FROM THE STATUTORY LANGUAGE
AS TO ALLOW A MARITAL DEDUCTION FOR THE WIDOW'S ALLOWANCE PROVIDED BY
THE CALIFORNIA STATUTE.  THE ACHIEVEMENT OF THE PURPOSES OF THE MARITAL
DEDUCTION IS DEPENDENT TO A GREAT DEGREE UPON THE CAREFUL DRAFTING OF
WILLS; WE HAVE NO FEAR THAT OUR DECISION TODAY WILL PREVENT EITHER THE
FULL UTILIZATION OF THE MARITAL DEDUCTION OR THE PROPER SUPPORT OF
WIDOWS DURING THE PENDENCY OF AN ESTATE PROCEEDING.  AFFIRMED. 

FN1  THE DEDUCTION ALLOWED IS:  "AN AMOUNT EQUAL TO THE VALUE OF ANY
INTEREST IN PROPERTY WHICH PASSES OR HAS PASSED FROM THE DECEDENT TO
HIS SURVIVING SPOUSE, BUT ONLY TO THE EXTENT THAT SUCH INTEREST IS
INCLUDED IN DETERMINING THE VALUE OF THE GROSS ESTATE."  26 U.S.C.
(1952 ED.)  SEC.  812(E)(1)(A). 

FN2  SUBSECTION (B) PROVIDES IN PERTINENT PART:  "WHERE, UPON THE
LAPSE OF TIME, UPON THE OCCURRENCE OF AN EVENT OR CONTINGENCY, OR UPON
THE FAILURE OF AN EVENT OR CONTINGENCY TO OCCUR, SUCH INTEREST PASSING
TO THE SURVIVING SPOUSE WILL TERMINATE OR FAIL, NO DEDUCTION SHALL BE
ALLOWED WITH RESPECT TO SUCH INTEREST: 

"(I)  IF AN INTEREST IN SUCH PROPERTY PASSES OR HAS PASSED (FOR LESS
THAN AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH) FROM
THE DECEDENT TO ANY PERSON OTHER THAN SUCH SURVIVING SPOUSE (OR THE
ESTATE OF SUCH SPOUSE); AND: 

"(II)  IF BY REASON OF SUCH PASSING SUCH PERSON (OR HIS HEIRS OR
ASSIGNS) MAY POSSESS OR ENJOY ANY PART OF SUCH PROPERTY AFTER SUCH
TERMINATION OR FAILURE OF THE INTEREST SO PASSING TO THE SURVIVING
SPOUSE."  26 U.S.C. (1952 ED.)  SEC.  812(E)(1)(B). 

THE MARITAL-DEDUCTION AND TERMINABLE-INTEREST PROVISIONS OF THE 1954
CODE ARE SIMILAR TO THOSE OF ITS 1939 COUNTERPART.  SEE 26 U.S.C. (1958
ED.)  SEC.  2056(A) AND (B). 

FN3  S. REP. NO. 1013, PART 2, 80TH CONG., 2D SESS., P. 3. 

FN4  THE LEGISLATIVE HISTORY STATES:  "IN PRACTICE THE SUPPORT
ALLOWANCE DEDUCTION HAS DISCRIMINATED IN FAVOR OF ESTATES LOCATED IN
STATES WHICH AUTHORIZE LIBERAL ALLOWANCES FOR THE SUPPORT OF
DEPENDENTS, AND IT HAS PROBABLY ALSO TENDED TO DELAY THE SETTLEMENT OF
ESTATES."  S. REP. NO. 2375, 81ST CONG., 2D SESS., P. 57. 

FN5  UNITED STATES V. FIRST NATIONAL BANK & TRUST CO. OF AUGUSTA, 297
F.2D 312 (C.A.  5TH CIR.); ESTATE OF GALE V. COMMISSIONER, 35 T.C. 215;
ESTATE OF RUDNICK V. COMMISSIONER, 36 T.C. 1021. 

FN6  BOOKWALTER V. LAMAR, 323 F.2D 664 (C.A. 8TH CIR.); UNITED STATES
V. MAPPES, 318 F.2D 508 (C.A. 10TH CIR.); COMMISSIONER V. ELLIS'
ESTATE, 252 F.2D 109 (C.A. 3D CIR.); STARRETT V. COMMISSIONER, 223 F.2D
163 (C.A. 1ST CIR.); ESTATE OF SBICCA V. COMMISSIONER, 35 T.C. 96. 
FN7  "FOR THE PURPOSES OF SUBPARAGRAPH (B) AN INTEREST PASSING TO THE
SURVIVING SPOUSE SHALL NOT BE CONSIDERED AS AN INTEREST WHICH WILL
TERMINATE OR FAIL UPON THE DEATH OF SUCH SPOUSE IF: 

"(I)  SUCH DEATH WILL CAUSE A TERMINATION OR FAILURE OF SUCH INTEREST
ONLY IF IT OCCURS WITHIN A PERIOD NOT EXCEEDING SIX MONTHS AFTER THE
DECEDENT'S DEATH, OR ONLY IF IT OCCURS AS A RESULT OF A COMMON DISASTER
RESULTING IN THE DEATH OF THE DECEDENT AND THE SURVIVING SPOUSE, OR
ONLY IF IT OCCURS IN THE CASE OF EITHER SUCH EVENT; AND:    "(II)  SUCH
TERMINATION OR FAILURE DOES NOT IN FACT OCCUR."  26 U.S.C. (1952 ED.) 
SEC.  812(E)(1)(D). 

FN8  THE SENATE REPORT ACCOMPANYING THE HOUSE BILL WHICH EVENTUALLY
BECAME LAW STATES THAT "SUBPARAGRAPH (D) OF SECTION 812(E)(1) PROVIDES
AN EXCEPTION TO THE TERMINABLE INTEREST RULE UNDER SUBPARAGRAPH (B) OF
SUCH SECTION.  THIS EXCEPTION IS FOR THE PURPOSE OF ALLOWING THE
MARITAL DEDUCTION IN CERTAIN CASES WHERE THERE IS A CONTINGENCY WITH
RESPECT TO THE INTEREST PASSING TO THE SURVIVING SPOUSE UNDER A COMMON
DISASTER CLAUSE OR SIMILAR CLAUSE IN THE DECEDENT'S WILL."  S. REP. NO.
1013, PART 2, 80TH CONG., 2D SESS., P. 15. 

FN9  ID., AT 10, 11, 15. 

FN10  SEE S. REP. NO. 1622, 83D CONG., 2D SESS., P. 125; H.R. 2573,
86TH CONG., 1ST SESS.; AND H.R. REP. NO. 818, 86TH CONG., 1ST SESS. 

FN11  UNITED STATES V. STAPF, 375 U.S. 118. 

FN12  SEE SURREY, FEDERAL TAXATION OF THE FAMILY - THE REVENUE ACT OF
1948, 61 HARV.  L. REV. 1097, 1156-1157; ANDERSON, THE MARITAL
DEDUCTION AND EQUALIZATION UNDER THE FEDERAL ESTATE AND GIFT TAXES
BETWEEN COMMON LAW AND COMMUNITY PROPERTY STATES, 54 MICH.  L. REV.
1087, 1109. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :










CEPERO V. PRESIDENT OF THE UNITED STATES 376 U.S. 512 


NOS. 671, MISC., AND 843, MISC.  DECIDED MARCH 23, 1964.  - APPEALS
DISMISSED FOR WANT OF JURISDICTION. 


CEPERO V. PRESIDENT OF THE UNITED STATES ET AL. 

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE APPEALS ARE DISMISSED FOR WANT OF JURISDICTION. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :














KIRK V. BOEHM, SUPERINTENDENT, DEPARTMENT OF PUBLIC INSTRUCTION,
PENNSYLVANIA 376 U.S. 512 


NO. 753.  DECIDED MARCH 23, 1964.  - 216 F. SUPP. 952, AFFIRMED. 


KIRK V. BOEHM, SUPERINTENDENT, DEPARTMENT OF PUBLIC INSTRUCTION,
PENNSYLVANIA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :
















FAWCETT PUBLICATIONS V. MORRIS 376 U.S. 513 


NO. 57.  DECIDED MARCH 23, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  377 P.2D 42. 


FAWCETT PUBLICATIONS, INC., V. MORRIS. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED OR THAT THE PETITION FOR WRIT OF
CERTIORARI SHOULD BE GRANTED. 
..END :












AUCLAIR TRANSPORTATION V. UNITED STATES 376 U.S. 514 


NO. 724.  DECIDED MARCH 23, 1964.  - 221 F. SUPP. 328, AFFIRMED. 


AUCLAIR TRANSPORTATION, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SEARS, ROEBUCK & CO. V. STIFFEL CO. 376 U.S. 225 


NO. 108.  ARGUED JANUARY 16, 1964.  - DECIDED MARCH 9, 1964.  - 313 F.2D
115, REVERSED. 


RESPONDENT, WHOSE DESIGN AND MECHANICAL PATENTS ARE INVALID FOR WANT
OF INVENTION, CANNOT UNDER A STATE UNFAIR COMPETITION LAW OBTAIN AN
INJUNCTION AGAINST COPYING ITS PRODUCT OR AN AWARD OF DAMAGES FOR SUCH
COPYING, AS SUCH USE OF STATE LAW CONFLICTS WITH THE EXCLUSIVE POWER OF
THE FEDERAL GOVERNMENT TO GRANT PATENTS ONLY TO TRUE INVENTIONS, AND
THEN ONLY FOR A LIMITED TIME.  AN UNPATENTED ARTICLE, BEING IN THE
PUBLIC DOMAIN, MAY BE FREELY COPIED, THOUGH LABELING OR OTHER
PRECAUTIONS MAY BE REQUIRED BY STATE LAW WHERE APPROPRIATE TO PREVENT
DECEPTION AS TO SOURCE.  PP. 225-233. 

SEARS, ROEBUCK & CO. V. STIFFEL COMPANY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER A STATE'S UNFAIR COMPETITION LAW
CAN, CONSISTENTLY WITH THE FEDERAL PATENT LAWS, IMPOSE LIABILITY FOR OR
PROHIBIT THE COPYING OF AN ARTICLE WHICH IS PROTECTED BY NEITHER A
FEDERAL PATENT NOR A COPYRIGHT.  THE RESPONDENT, STIFFEL COMPANY,
SECURED DESIGN AND MECHANICAL PATENTS ON A "POLE LAMP" - A VERTICAL
TUBE HAVING LAMP FIXTURES ALONG THE OUTSIDE, THE TUBE BEING MADE SO
THAT IT WILL STAND UPRIGHT BETWEEN THE FLOOR AND CEILING OF A ROOM. 
POLE LAMPS PROVED A DECIDED COMMERCIAL SUCCESS, AND SOON AFTER STIFFEL
BROUGHT THEM ON THE MARKET SEARS, ROEBUCK & COMPANY PUT ON THE MARKET A
SUBSTANTIALLY IDENTICAL LAMP, WHICH IT SOLD MORE CHEAPLY, SEARS' RETAIL
PRICE BEING ABOUT THE SAME AS STIFFEL'S WHOLESALE PRICE.  STIFFEL THEN
BROUGHT THIS ACTION AGAINST SEARS IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, CLAIMING IN ITS FIRST COUNT THAT
BY COPYING ITS DESIGN SEARS HAD INFRINGED STIFFEL'S PATENTS AND IN ITS
SECOND COUNT THAT BY SELLING COPIES OF STIFFEL'S LAMP SEARS HAD CAUSED
CONFUSION IN THE TRADE AS TO THE SOURCE OF THE LAMPS AND HAD THEREBY
ENGAGED IN UNFAIR COMPETITION UNDER ILLINOIS LAW.  THERE WAS EVIDENCE
THAT IDENTIFYING TAGS WERE NOT ATTACHED TO THE SEARS LAMPS ALTHOUGH
LABELS APPEARED ON THE CARTONS IN WHICH THEY WERE DELIVERED TO
CUSTOMERS, THAT CUSTOMERS HAD ASKED STIFFEL WHETHER ITS LAMPS DIFFERED
FROM SEARS', AND THAT IN TWO CASES CUSTOMERS WHO HAD BOUGHT STIFFEL
LAMPS HAD COMPLAINED TO STIFFEL ON LEARNING THAT SEARS WAS SELLING
SUBSTANTIALLY IDENTICAL LAMPS AT A MUCH LOWER PRICE. 

THE DISTRICT COURT, AFTER HOLDING THE PATENTS INVALID FOR WANT OF
INVENTION, WENT ON TO FIND AS A FACT THAT SEARS' LAMP WAS "A
SUBSTANTIALLY EXACT COPY" OF STIFFEL'S AND THAT THE TWO LAMPS WERE SO
MUCH ALIKE, BOTH IN APPEARANCE AND IN FUNCTIONAL DETAILS, "THAT
CONFUSION BETWEEN THEM IS LIKELY, AND SOME CONFUSION HAS ALREADY
OCCURRED."  ON THESE FINDINGS THE COURT HELD SEARS GUILTY OF UNFAIR
COMPETITION, ENJOINED SEARS "FROM UNFAIRLY COMPETING WITH STIFFEL BY
SELLING OR ATTEMPTING TO SELL POLE LAMPS IDENTICAL TO OR CONFUSINGLY
SIMILAR TO" STIFFEL'S LAMP, AND ORDERED AN ACCOUNTING TO FIX PROFITS
AND DAMAGES RESULTING FROM SEARS'"UNFAIR COMPETITION." 

THE COURT OF APPEALS AFFIRMED.  (FN1)  313 F.2D 115.  THAT COURT HELD
THAT, TO MAKE OUT A CASE OF UNFAIR COMPETITION UNDER ILLINOIS LAW,
THERE WAS NO NEED TO SHOW THAT SEARS HAD BEEN "PALMING OFF" ITS LAMPS
AS STIFFEL LAMPS; STIFFEL HAD ONLY TO PROVE THAT THERE WAS A
"LIKELIHOOD OF CONFUSION AS TO THE SOURCE OF THE PRODUCTS" - THAT THE
TWO ARTICLES WERE SUFFICIENTLY IDENTICAL THAT CUSTOMERS COULD NOT TELL
WHO HAD MADE A PARTICULAR ONE.  IMPRESSED BY THE "REMARKABLE SAMENESS
OF APPEARANCE" OF THE LAMPS, THE COURT OF APPEALS UPHELD THE TRIAL
COURT'S FINDINGS OF LIKELIHOOD OF CONFUSION AND SOME ACTUAL CONFUSION,
FINDINGS WHICH THE APPELLATE COURT CONSTRUED TO MEAN CONFUSION "AS TO
THE SOURCE OF THE LAMPS."  THE COURT OF APPEALS THOUGHT THIS ENOUGH
UNDER ILLINOIS LAW TO SUSTAIN THE TRIAL COURT'S HOLDING OF UNFAIR
COMPETITION, AND THUS HELD SEARS LIABLE UNDER ILLINOIS LAW FOR DOING NO
MORE THAN COPYING AND MARKETING AN UNPATENTED ARTICLE.  (FN2)  WE
GRANTED CERTIORARI TO CONSIDER WHETHER THIS USE OF A STATE'S LAW OF
UNFAIR COMPETITION IS COMPATIBLE WITH THE FEDERAL PATENT LAW.  374 U.S.
826. 

BEFORE THE CONSTITUTION WAS ADOPTED, SOME STATES HAD GRANTED PATENTS
EITHER BY SPECIAL ACT OR BY GENERAL STATUTE, (FN3) BUT WHEN THE
CONSTITUTION WAS ADOPTED PROVISION FOR A FEDERAL PATENT LAW WAS MADE
ONE OF THE ENUMERATED POWERS OF CONGRESS BECAUSE, AS MADISON PUT IT IN
THE FEDERALIST NO. 43, THE STATES "CANNOT SEPARATELY MAKE EFFECTUAL
PROVISION" FOR EITHER PATENTS OR COPYRIGHTS.  (FN4) THAT CONSTITUTIONAL
PROVISION IS ART. I, SEC 8, CL. 8, WHICH EMPOWERS CONGRESS "TO PROMOTE
THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES
TO AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE
WRITINGS AND DISCOVERIES."  PURSUANT TO THIS CONSTITUTIONAL AUTHORITY,
CONGRESS IN 1790 ENACTED THE FIRST FEDERAL PATENT AND COPYRIGHT LAW, 1
STAT. 109, AND EVER SINCE THAT TIME HAS FIXED THE CONDITIONS UPON WHICH
PATENTS AND COPYRIGHTS SHALL BE GRANTED, SEE 17 U.S.C.  SECS 1-216; 35
U.S.C. SECS 1-293.  THESE LAWS, LIKE OTHER LAWS OF THE UNITED STATES
ENACTED PURSUANT TO CONSTITUTIONAL AUTHORITY, ARE THE SUPREME LAW OF
THE LAND.  SEE SPERRY V. FLORIDA, 373 U.S. 379 (1963).  WHEN STATE LAW
TOUCHES UPON THE AREA OF THESE FEDERAL STATUTES, IT IS "FAMILIAR
DOCTRINE" THAT THE FEDERAL POLICY "MAY NOT BE SET AT NAUGHT, OR ITS
BENEFITS DENIED" BY THE STATE LAW.  SOLA ELEC.  CO. V. JEFFERSON ELEC. 
CO., 317 U.S. 173, 176 (1942).  THIS IS TRUE, OF COURSE, EVEN IF THE
STATE LAW IS ENACTED IN THE EXERCISE OF OTHERWISE UNDOUBTED STATE
POWER. 

THE GRANT OF A PATENT IS THE GRANT OF A STATUTORY MONOPOLY; (FN5)
INDEED, THE GRANT OF PATENTS IN ENGLAND WAS AN EXPLICIT EXCEPTION TO
THE STATUTE OF JAMES I PROHIBITING MONOPOLIES.  (FN6)  PATENTS ARE NOT
GIVEN AS FAVORS, AS WAS THE CASE OF MONOPOLIES GIVEN BY THE TUDOR
MONARCHS, SEE THE CASE OF MONOPOLIES (DARCY V. ALLEIN), 11 CO. REP.
84B., 77 ENG. REP. 1260 (K.B. 1602), BUT ARE MEANT TO ENCOURAGE
INVENTION BY REWARDING THE INVENTOR WITH THE RIGHT, LIMITED TO A TERM
OF YEARS FIXED BY THE PATENT, TO EXCLUDE OTHERS FROM THE USE OF HIS
INVENTION.  DURING THAT PERIOD OF TIME NO ONE MAY MAKE, USE, OR SELL
THE PATENTED PRODUCT WITHOUT THE PATENTEE'S AUTHORITY.  35 U.S.C. SEC
271.  BUT IN REWARDING USEFUL INVENTION, THE "RIGHTS AND WELFARE OF THE
COMMUNITY MUST BE FAIRLY DEALT WITH AND EFFECTUALLY GUARDED."  KENDALL
V. WINSOR, 21 HOW.  322, 329 (1859).  TO THAT END THE PREREQUISITES TO
OBTAINING A PATENT ARE STRICTLY OBSERVED, AND WHEN THE PATENT HAS
ISSUED THE LIMITATIONS ON ITS EXERCISE ARE EQUALLY STRICTLY ENFORCED. 
TO BEGIN WITH, A GENUINE "INVENTION" OR "DISCOVERY" MUST BE
DEMONSTRATED "LEST IN THE CONSTANT DEMAND FOR NEW APPLIANCES THE HEAVY
HAND OF TRIBUTE BE LAID ON EACH SLIGHT TECHNOLOGICAL ADVANCE IN AN
ART."  CUNO ENGINEERING CORP. V. AUTOMATIC DEVICES CORP., 314 U.S. 84,
92 (1941); SEE GREAT ATLANTIC & PACIFIC TEA CO. V. SUPERMARKET
EQUIPMENT CORP., 340 U.S. 147, 152-153 (1950); ATLANTIC WORKS V. BRADY,
107 U.S. 192, 199-200 (1883).  ONCE THE PATENT ISSUES, IT IS STRICTLY
CONSTRUED, UNITED STATES V. MASONITE CORP., 316 U.S. 265, 280 (1942),
IT CANNOT BE USED TO SECURE ANY MONOPOLY BEYOND THAT CONTAINED IN THE
PATENT, MORTON SALT CO. V. G.S. SUPPIGER CO., 314 U.S. 488, 492 (1942),
THE PATENTEE'S CONTROL OVER THE PRODUCT WHEN IT LEAVES HIS HANDS IS
SHARPLY LIMITED, SEE UNITED STATES V. UNIVIS LENS CO., 316 U.S. 241,
250-252 (1942), AND THE PATENT MONOPOLY MAY NOT BE USED IN DISREGARD OF
THE ANTITRUST LAWS, SEE INTERNATIONAL BUSINESS MACHINES CORP. V. UNITED
STATES, 298 U.S. 131 (1936); UNITED SHOE MACHINERY CORP. V. UNITED
STATES, 258 U.S. 451, 463-464 (1922).  FINALLY, AND ESPECIALLY RELEVANT
HERE, WHEN THE PATENT EXPIRES THE MONOPOLY CREATED BY IT EXPIRES TOO,
AND THE RIGHT TO MAKE THE ARTICLE - INCLUDING THE RIGHT TO MAKE IT IN
PRECISELY THE SHAPE IT CARRIED WHEN PATENTED - PASSES TO THE PUBLIC. 
KELLOGG CO. V. NATIONAL BISCUIT CO., 305 U.S. 111, 120-122 (1938);
SINGER MFG. CO. V. JUNE MFG. CO., 163 U.S. 169, 185 (1896). 

THUS THE PATENT SYSTEM IS ONE IN WHICH UNIFORM FEDERAL STANDARDS ARE
CAREFULLY USED TO PROMOTE INVENTION WHILE AT THE SAME TIME PRESERVING
FREE COMPETITION.  (FN7)  OBVIOUSLY A STATE COULD NOT, CONSISTENTLY
WITH THE SUPREMACY CLAUSE OF THE CONSTITUTION, (FN8) EXTEND THE LIFE OF
A PATENT BEYOND ITS EXPIRATION DATE OR GIVE A PATENT ON AN ARTICLE
WHICH LACKED THE LEVEL OF INVENTION REQUIRED FOR FEDERAL PATENTS.  TO
DO EITHER WOULD RUN COUNTER TO THE POLICY OF CONGRESS OF GRANTING
PATENTS ONLY TO TRUE INVENTIONS, AND THEN ONLY FOR A LIMITED TIME. 
JUST AS A STATE CANNOT ENCROACH UPON THE FEDERAL PATENT LAWS DIRECTLY,
IT CANNOT, UNDER SOME OTHER LAW, SUCH AS THAT FORBIDDING UNFAIR
COMPETITION, GIVE PROTECTION OF A KIND THAT CLASHES WITH THE OBJECTIVES
OF THE FEDERAL PATENT LAWS. 

IN THE PRESENT CASE THE "POLE LAMP" SOLD BY STIFFEL HAS BEEN HELD NOT
TO BE ENTITLED TO THE PROTECTION OF EITHER A MECHANICAL OR A DESIGN
PATENT.  AN UNPATENTABLE ARTICLE, LIKE AN ARTICLE ON WHICH THE PATENT
HAS EXPIRED, IS IN THE PUBLIC DOMAIN AND MAY BE MADE AND SOLD BY
WHOEVER CHOOSES TO DO SO.  WHAT SEARS DID WAS TO COPY STIFFEL'S DESIGN
AND TO SELL LAMPS ALMOST IDENTICAL TO THOSE SOLD BY STIFFEL.  THIS IT
HAD EVERY RIGHT TO DO UNDER THE FEDERAL PATENT LAWS.  THAT STIFFEL
ORIGINATED THE POLE LAMP AND MADE IT POPULAR IS IMMATERIAL.  "SHARING
IN THE GOODWILL OF AN ARTICLE UNPROTECTED BY PATENT OR TRADE-MARK IS
THE EXERCISE OF A RIGHT POSSESSED BY ALL - AND IN THE FREE EXERCISE OF
WHICH THE CONSUMING PUBLIC IS DEEPLY INTERESTED."  KELLOGG CO. V.
NATIONAL BISCUIT CO., SUPRA, 305 U.S., AT 122.  TO ALLOW A STATE BY USE
OF ITS LAW OF UNFAIR COMPETITION TO PREVENT THE COPYING OF AN ARTICLE
WHICH REPRESENTS TOO SLIGHT AN ADVANCE TO BE PATENTED WOULD BE TO
PERMIT THE STATE TO BLOCK OFF FROM THE PUBLIC SOMETHING WHICH FEDERAL
LAW HAS SAID BELONGS TO THE PUBLIC.  THE RESULT WOULD BE THAT WHILE
FEDERAL LAW GRANTS ONLY 14 OR 17 YEARS' PROTECTION TO GENUINE
INVENTIONS, SEE 35 U.S.C. SECS 154, 173, STATES COULD ALLOW PERPETUAL
PROTECTION TO ARTICLES TOO LACKING IN NOVELTY TO MERIT ANY PATENT AT
ALL UNDER FEDERAL CONSTITUTIONAL STANDARDS.  THIS WOULD BE TOO GREAT AN
ENCROACHMENT ON THE FEDERAL PATENT SYSTEM TO BE TOLERATED. 

SEARS HAS BEEN HELD LIABLE HERE FOR UNFAIR COMPETITION BECAUSE OF A
FINDING OF LIKELIHOOD OF CONFUSION BASED ONLY ON THE FACT THAT SEARS'
LAMP WAS COPIED FROM STIFFEL'S UNPATENTED LAMP AND THAT CONSEQUENTLY
THE TWO LOOKED EXACTLY ALIKE.  OF COURSE THERE COULD BE "CONFUSION" AS
TO WHO HAD MANUFACTURED THESE NEARLY IDENTICAL ARTICLES.  BUT MERE
INABILITY OF THE PUBLIC TO TELL TWO IDENTICAL ARTICLES APART IS NOT
ENOUGH TO SUPPORT AN INJUNCTION AGAINST COPYING OR AN AWARD OF DAMAGES
FOR COPYING THAT WHICH THE FEDERAL PATENT LAWS PERMIT TO BE COPIED. 
DOUBTLESS A STATE MAY, IN APPROPRIATE CIRCUMSTANCES, REQUIRE THAT
GOODS, WHETHER PATENTED OR UNPATENTED, BE LABELED OR THAT OTHER
PRECAUTIONARY STEPS BE TAKEN TO PREVENT CUSTOMERS FROM BEING MISLED AS
TO THE SOURCE, JUST AS IT MAY PROTECT BUSINESSES IN THE USE OF THEIR
TRADEMARKS, LABELS, OR DISTINCTIVE DRESS IN THE PACKAGING OF GOODS SO
AS TO PREVENT OTHERS, BY IMITATING SUCH MARKINGS, FROM MISLEADING
PURCHASERS AS TO THE SOURCE OF THE GOODS.  (FN9)  BUT BECAUSE OF THE
FEDERAL PATENT LAWS A STATE MAY NOT, WHEN THE ARTICLE IS UNPATENTED AND
UNCOPYRIGHTED, PROHIBIT THE COPYING OF THE ARTICLE ITSELF OR AWARD
DAMAGES FOR SUCH COPYING.  CF. G. RICORDI & CO. V. HAENDLER, 194 F.2D
914, 916 (C.A.2D CIR. 1952).  THE JUDGMENT BELOW DID BOTH AND IN SO
DOING GAVE STIFFEL THE EQUIVALENT OF A PATENT MONOPOLY ON ITS
UNPATENTED LAMP.  THAT WAS ERROR, AND SEARS IS ENTITLED TO A JUDGMENT
IN ITS FAVOR.  REVERSED. 

FN1  NO REVIEW IS SOUGHT HERE OF THE RULING AFFIRMING THE DISTRICT
COURT'S HOLDING THAT THE PATENT IS INVALID. 

FN2  313 F.2D, AT 118 AND NN. 6, 7.  AT LEAST ONE ILLINOIS CASE HAS
HELD IN AN EXHAUSTIVE OPINION THAT UNFAIR COMPETITION UNDER THE LAW OF
ILLINOIS IS NOT PROVED UNLESS THE DEFENDANT IS SHOWN TO HAVE "PALMED
OFF" THE ARTICLE WHICH HE SELLS AS THAT OF ANOTHER SELLER; THE COURT
THERE SAID THAT "THE COURTS IN THIS STATE DO NOT TREAT THE 'PALMING
OFF' DOCTRINE AS MERELY THE DESIGNATION OF A TYPICAL CLASS OF CASES OF
UNFAIR COMPETITION, BUT THEY ANNOUNCE IT AS THE RULE OF LAW ITSELF -
THE TEST BY WHICH IT IS DETERMINED WHETHER A GIVEN STATE OF FACTS
CONSTITUTES UNFAIR COMPETITION AS A MATTER OF LAW  ...  .  THE 'PALMING
OFF' RULE IS EXPRESSED IN A POSITIVE, CONCRETE FORM WHICH WILL NOT
ADMIT OF 'BROADENING' OR 'WIDENING' BY ANY PROPER JUDICIAL PROCESS." 
STEVENS-DAVIS CO. V. MATHER & CO., 230 ILL. APP. 45, 65-66 (1923).  IN
SPITE OF THIS THE COURT OF APPEALS IN ITS OPINIONS BOTH IN THIS CASE
AND IN DAY-BRITE LIGHTING, INC., V. COMPCO CORP., 311 F.2D 26, REV'D,
POST, P. 234, RELIED UPON ONE OF ITS PREVIOUS DECISIONS IN A TRADE-NAME
CASE, INDEPENDENT NAIL & PACKING CO. V. STRONGHOLD SCREW PRODUCTS, 205
F.2D 921 (C.A. 7TH CIR. 1953), WHICH CONCLUDED THAT AS TO USE OF TRADE
NAMES THE STEVENS-DAVIS RULE HAD BEEN OVERRULED BY TWO SUBSEQUENT
ILLINOIS DECISIONS.  THOSE TWO CASES, HOWEVER, DISCUSSED ONLY
MISLEADING USE OF TRADE NAMES, NOT COPYING OF ARTICLES OF TRADE.  ONE
PROHIBITED THE USE OF A NAME SO SIMILAR TO THAT OF ANOTHER SELLER AS TO
DECEIVE OR CONFUSE CUSTOMERS, EVEN THOUGH THE DEFENDANT COMPANY DID NOT
SELL THE SAME PRODUCTS AS THE PLAINTIFF AND SO IN ONE SENSE COULD NOT
BE SAID TO HAVE PALMED OFF ITS GOODS AS THOSE OF A COMPETITOR, SINCE
THE PLAINTIFF WAS NOT A COMPETITOR.  LADY ESTHER, LTD. V. LADY ESTHER
CORSET SHOPPE, INC., 317 ILL. APP. 451, 46 N.E.2D 165 (1943).  THE
OTHER ILLINOIS CASE ON WHICH THE COURT OF APPEALS RELIED WAS A MANDAMUS
ACTION WHICH HELD THAT UNDER AN ILLINOIS STATUTE A CORPORATION WAS
PROPERLY DENIED REGISTRATION IN THE STATE WHEN ITS NAME WAS
"DECEPTIVELY SIMILAR" TO THAT OF A CORPORATION ALREADY REGISTERED. 
INVESTORS SYNDICATE OF AMERICA, INC., V. HUGHES, 378 ILL. 413, 38
N.E.2D 754 (1941).  THE COURT OF APPEALS, BY HOLDING THAT BECAUSE
ILLINOIS FORBIDS MISLEADING USE OF TRADE NAMES IT ALSO FORBIDS AS
UNFAIR COMPETITION THE MERE COPYING OF AN ARTICLE OF TRADE WITHOUT ANY
PALMING OFF, THUS APPEARS TO HAVE EXTENDED GREATLY THE SCOPE OF THE
ILLINOIS LAW OF UNFAIR COMPETITION BEYOND THE LIMITS INDICATED IN THE
ILLINOIS CASES AND BEYOND ANY PREVIOUS DECISIONS OF THE SEVENTH CIRCUIT
ITSELF.  BECAUSE OF OUR DISPOSITION OF THESE CASES WE NEED NOT DECIDE
WHETHER IT WAS CORRECT IN DOING SO. 

FN3  SEE I WALKER, PATENTS (DELLER ED. 1937), SEC 7. 

FN4  THE FEDERALIST (COOKE ED. 1961) 288. 

FN5  PATENT RIGHTS EXIST ONLY BY VIRTUE OF STATUTE.  WHEATON V.
PETERS, 8 PET. 591, 658 (1834). 

FN6  THE STATUTE OF MONOPOLIES, 21 JAC.  I, C. 3 (1623), DECLARED ALL
MONOPOLIES "CONTRARY TO THE LAWS OF THIS REALM" AND "UTTERLY VOID AND
OF NONE EFFECT."  SECTION VI, HOWEVER, EXCEPTED PATENTS OF 14 YEARS TO
"THE TRUE AND FIRST INVENTOR AND INVENTORS" OF "NEW MANUFACTURES" SO
LONG AS THEY WERE "NOT CONTRARY TO THE LAW, NOR MISCHIEVOUS TO THE
STATE, BY RAISING PRICES OF COMMODITIES AT HOME, OR HURT OF TRADE, OR
GENERALLY INCONVENIENT  ...  ."  MUCH AMERICAN PATENT LAW DERIVES FROM
ENGLISH PATENT LAW.  SEE PENNOCK V. DIALOGUE, 2 PET. 1, 18 (1829). 

FN7  THE PURPOSE OF CONGRESS TO HAVE NATIONAL UNIFORMITY IN PATENT
AND COPYRIGHT LAWS CAN BE INFERRED FROM SUCH STATUTES AS THAT WHICH
VESTS EXCLUSIVE JURISDICTION TO HEAR PATENT AND COPYRIGHT CASES IN
FEDERAL COURTS, 28 U.S.C. SEC 1338(A), AND THAT SECTION OF THE
COPYRIGHT ACT WHICH EXPRESSLY SAVES STATE PROTECTION OF UNPUBLISHED
WRITINGS BUT DOES NOT INCLUDE PUBLISHED WRITINGS, 17 U.S.C. SEC 2. 

FN8  U.S. CONST., ART. VI. 

FN9  IT SEEMS APPARENT THAT ILLINOIS HAS NOT SEEN FIT TO IMPOSE
LIABILITY ON SELLERS WHO DO NOT LABEL THEIR GOODS.  NEITHER THE
DISCUSSIONS IN THE OPINIONS BELOW NOR THE BRIEFS BEFORE US CITE ANY
ILLINOIS STATUTE OR DECISION REQUIRING LABELING. 

(FOR CONCURRING OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 239.) 
..END :




COMPCO CORP. V. DAY-BRITE LIGHTING 376 U.S. 234 


NO. 106.  ARGUED JANUARY 16, 1964.  - DECIDED MARCH 9, 1964.  - 311 F.2D
26, REVERSED. 


DESIGN WHICH IS NOT ENTITLED TO DESIGN PATENT MAY BE COPIED AT WILL
EVEN THOUGH IT IDENTIFIES MAKER TO TRADE, AND INJUNCTION AGAINST SUCH
COPYING OR AN ACCOUNTING FOR DAMAGES FOR COPYING IS IN CONFLICT WITH
FEDERAL PATENT LAWS.  SEARS ROEBUCK & CO. V. STIFFEL CO., ANTE, P. 225,
FOLLOWED.  PP. 234-239. 

COMPCO CORPORATION V. DAY-BRITE LIGHTING, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AS IN SEARS, ROEBUCK & CO. V. STIFFEL CO., ANTE, P. 225, THE QUESTION
HERE IS WHETHER THE USE OF A STATE UNFAIR COMPETITION LAW TO GIVE
RELIEF AGAINST THE COPYING OF AN UNPATENTED INDUSTRIAL DESIGN CONFLICTS
WITH THE FEDERAL PATENT LAWS.  BOTH COMPCO AND DAY-BRITE ARE
MANUFACTURERS OF FLOURESCENT LIGHTING FIXTURES OF A KIND WIDELY USED IN
OFFICES AND STORES.  DAY-BRITE IN 1955 SECURED FROM THE PATENT OFFICE A
DESIGN PATENT ON A REFLECTOR HAVING CROSS-RIBS CLAIMED TO GIVE BOTH
STRENGTH AND ATTRACTIVENESS TO THE FIXTURE.  DAY-BRITE ALSO SOUGHT, BUT
WAS REFUSED, A MECHANICAL PATENT ON THE SAME DEVICE.  AFTER DAY-BRITE
HAD BEGUN SELLING ITS FIXTURE, COMPCO'S PREDECESSOR (FN1) BEGAN MAKING
AND SELLING FIXTURES VERY SIMILAR TO DAY-BRITE'S.  THIS ACTION WAS THEN
BROUGHT BY DAY-BRITE.  ONE COUNT ALLEGED THAT COMPCO HAD INFRINGED DAY
BRITE'S DESIGN PATENT; A SECOND COUNT CHARGED THAT THE PUBLIC AND THE
TRADE HAD COME TO ASSOCIATE THIS PARTICULAR DESIGN WITH DAY-BRITE, THAT
COMPCO HAD COPIED DAY-BRITE'S DISTINCTIVE DESIGN SO AS TO CONFUSE AND
DECEIVE PURCHASERS INTO THINKING COMPCO'S FIXTURES WERE ACTUALLY DAY
BRITE'S, AND THAT BY DOING THIS COMPCO HAD UNFAIRLY COMPETED WITH DAY
BRITE.  THE COMPLAINT PRAYED FOR BOTH AN ACCOUNTING AND AN INJUNCTION. 

THE DISTRICT COURT HELD THE DESIGN PATENT INVALID; BUT AS TO THE
SECOND COUNT, WHILE THE COURT DID NOT FIND THAT COMPCO HAD ENGAGED IN
ANY DECEPTIVE OR FRAUDULENT PRACTICES, IT DID HOLD THAT COMPCO HAD BEEN
GUILTY OF UNFAIR COMPETITION UNDER ILLINOIS LAW.  THE COURT FOUND THAT
THE OVERALL APPEARANCE OF COMPCO'S FIXTURE WAS "THE SAME, TO THE EYE OF
THE ORDINARY OBSERVER, AS THE OVERALL APPEARANCE" OF DAY-BRITE'S
REFLECTOR, WHICH EMBODIED THE DESIGN OF THE INVALIDATED PATENT; THAT
THE APPEARANCE OF DAY-BRITE'S DESIGN HAD "THE CAPACITY TO IDENTIFY DAY
BRITE IN THE TRADE AND DOES IN FACT SO IDENTIFY IT TO THE TRADE"; THAT
THE CONCURRENT SALE OF THE TWO PRODUCTS WAS "LIKELY TO CAUSE CONFUSION
IN THE TRADE"; AND THAT "ACTUAL CONFUSION HAS OCCURRED."  ON THESE
FINDINGS THE COURT ADJUDGED COMPCO GUILTY OF UNFAIR COMPETITION IN THE
SALE OF ITS FIXTURES, ORDERED COMPCO TO ACCOUNT TO DAY-BRITE FOR
DAMAGES, AND ENJOINED COMPCO "FROM UNFAIRLY COMPETING WITH PLAINTIFF BY
THE SALE OR ATTEMPTED SALE OF REFLECTORS IDENTICAL TO, OR CONFUSINGLY
SIMILAR TO" THOSE MADE BY DAY-BRITE.  THE COURT OF APPEALS HELD THERE
WAS SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT THE DISTRICT COURT'S
FINDING OF LIKELY CONFUSION AND THAT THIS FINDING WAS SUFFICIENT TO
SUPPORT A HOLDING OF UNFAIR COMPETITION UNDER ILLINOIS LAW.  (FN2)  311
F.2D 26.  ALTHOUGH THE DISTRICT COURT HAD NOT MADE SUCH A FINDING, THE
APPELLATE COURT OBSERVED THAT "SEVERAL CHOICES OF RIBBING WERE
APPARENTLY AVAILABLE TO MEET THE FUNCTIONAL NEEDS OF THE PRODUCT," YET
COMPCO "CHOSE PRECISELY THE SAME DESIGN USED BY THE PLAINTIFF AND
FOLLOWED IT SO CLOSELY AS TO MAKE CONFUSION LIKELY."  311 F.2D, AT 30. 
A DESIGN WHICH IDENTIFIES ITS MAKER TO THE TRADE, THE COURT OF APPEALS
HELD, IS A "PROTECTABLE" RIGHT UNDER ILLINOIS LAW, EVEN THOUGH THE
DESIGN IS UNPATENTABLE.  (FN3)  WE GRANTED CERTIORARI.  374 U.S. 825. 

TO SUPPORT ITS FINDINGS OF LIKELIHOOD OF CONFUSION AND ACTUAL
CONFUSION, THE TRIAL COURT WAS ABLE TO REFER TO ONLY ONE CIRCUMSTANCE
IN THE RECORD.  A PLANT MANAGER WHO HAD INSTALLED SOME OF COMPCO'S
FIXTURES LATER ASKED DAY-BRITE TO SERVICE THE FIXTURES, THINKING THEY
HAD BEEN MADE BY DAY-BRITE.  THERE WAS NO TESTIMONY GIVEN BY A
PURCHASER OR BY ANYONE ELSE THAT ANY CUSTOMER HAD EVER BEEN MISLED,
DECIEVED, OR "CONFUSED," THAT IS, THAT ANYONE HAD EVER BOUGHT A COMPCO
FIXTURE THINKING IT WAS A DAY-BRITE FIXTURE.  ALL THE RECORD SHOWS, AS
TO THE ONE INSTANCE CITED BY THE TRIAL COURT, IS THAT BOTH COMPCO AND
DAY-BRITE FIXTURES HAD BEEN INSTALLED IN THE SAME PLANT, THAT THREE
YEARS LATER SOME REPAIRS WERE NEEDED, AND THAT THE MANAGER VIEWING THE
COMPCO FIXTURES - HUNG AT LEAST 15 FEET ABOVE THE FLOOR AND ARRANGED
END TO END IN A CONTINUOUS LINE SO THAT IDENTIFYING MARKS WERE HIDDEN -
THOUGHT THEY WERE DAY-BRITE FIXTURES AND ASKED DAY-BRITE TO SERVICE
THEM.  (FN4)  NOT ONLY IS THIS INCIDENT SUGGESTIVE ONLY OF CONFUSION
AFTER A PURCHASE HAD BEEN MADE, BUT ALSO THERE IS CONSIDERABLE EVIDENCE
OF THE CARE TAKEN BY COMPCO TO PREVENT CUSTOMER CONFUSION, INCLUDING
CLEARLY LABELING BOTH THE FIXTURES AND THE CONTAINERS IN WHICH THEY
WERE SHIPPED AND NOT SELLING THROUGH MANUFACTURERS' REPRESENTATIVES WHO
HANDLED COMPETING LINES. 

NOTWITHSTANDING THE THINNESS OF THE EVIDENCE TO SUPPORT FINDINGS OF
LIKELY AND ACTUAL CONFUSION AMONG PURCHASERS, WE DO NOT FIND IT
NECESSARY IN THIS CASE TO DETERMINE WHETHER THERE IS "CLEAR ERROR" IN
THESE FINDINGS.  THEY, LIKE THOSE IN SEARS, ROEBUCK & CO. V. STIFFEL
CO., SUPRA, WERE BASED WHOLLY ON THE FACT THAT SELLING AN ARTICLE WHICH
IS AN EXACT COPY OF ANOTHER UNPATENTED ARTICLE IS LIKELY TO PRODUCE AND
DID IN THIS CASE PRODUCE CONFUSION AS TO THE SOURCE OF THE ARTICLE. 
EVEN ACCEPTING THE FINDINGS, WE HOLD THAT THE ORDER FOR AN ACCOUNTING
FOR DAMAGES AND THE INJUNCTION ARE IN CONFLICT WITH THE FEDERAL PATENT
LAWS.  TODAY WE HAVE HELD IN SEARS, ROEBUCK & CO. V. STIFFEL CO.,
SUPRA, THAT WHEN AN ARTICLE IS UNPROTECTED BY A PATENT OR A COPYRIGHT,
STATE LAW MAY NOT FORBID OTHERS TO COPY THAT ARTICLE.  TO FORBID
COPYING WOULD INTERFERE WITH THE FEDERAL POLICY, FOUND IN ART. I, SEC
8, CL. 8, OF THE CONSTITUTION AND IN THE IMPLEMENTING FEDERAL STATUTES,
OF ALLOWING FREE ACCESS TO COPY WHATEVER THE FEDERAL PATENT AND
COPYRIGHT LAWS LEAVE IN THE PUBLIC DOMAIN.  HERE DAY-BRITE'S FIXTURE
HAS BEEN HELD NOT TO BE ENTITLED TO A DESIGN OR MECHANICAL PATENT. 
UNDER THE FEDERAL PATENT LAWS IT IS, THEREFORE, IN THE PUBLIC DOMAIN
AND CAN BE COPIED IN EVERY DETAIL BY WHOEVER PLEASES.  IT IS TRUE THAT
THE TRIAL COURT FOUND THAT THE CONFIGURATION OF DAY-BRITE'S FIXTURE
IDENTIFIED DAY-BRITE TO THE TRADE BECAUSE THE ARRANGEMENT OF THE
RIBBING HAD, LIKE A TRADEMARK, ACQUIRED A "SECONDARY MEANING" BY WHICH
THAT PARTICULAR DESIGN WAS ASSOCIATED WITH DAY-BRITE.  BUT IF THE
DESIGN IS NOT ENTITLED TO A DESIGN PATENT OR OTHER FEDERAL STATUTORY
PROTECTION, THEN IT CAN BE COPIED AT WILL. 

AS WE HAVE SAID IN SEARS, WHILE THE FEDERAL PATENT LAWS PREVENT A
STATE FROM PROHIBITING THE COPYING AND SELLING OF UNPATENTED ARTICLES,
THEY DO NOT STAND IN THE WAY OF STATE LAW, STATUTORY OR DECISIONAL,
WHICH REQUIRES THOSE WHO MAKE AND SELL COPIES TO TAKE PRECAUTIONS TO
IDENTIFY THEIR PRODUCTS AS THEIR OWN.  A STATE OF COURSE HAS POWER TO
IMPOSE LIABILITY UPON THOSE WHO, KNOWING THAT THE PUBLIC IS RELYING
UPON AN ORIGINAL MANUFACTURER'S REPUTATION FOR QUALITY AND INTEGRITY,
DECEIVE THE PUBLIC BY PALMING OFF THEIR COPIES AS THE ORIGINAL.  THAT
AN ARTICLE COPIED FROM AN UNPATENTED ARTICLE COULD BE MADE IN SOME
OTHER WAY, THAT THE DESIGN IS "NONFUNCTIONAL" AND NOT ESSENTIAL TO THE
USE OF EITHER ARTICLE, THAT THE CONFIGURATION OF THE ARTICLE COPIED MAY
HAVE A "SECONDARY MEANING" WHICH IDENTIFIES THE MAKER TO THE TRADE, OR
THAT THERE MAY BE "CONFUSION" AMONG PURCHASERS AS TO WHICH ARTICLE IS
WHICH OR AS TO WHO IS THE MAKER, MAY BE RELEVANT EVIDENCE IN APPLYING A
STATE'S LAW REQUIRING SUCH PRECAUTIONS AS LABELING; HOWEVER, AND
REGARDLESS OF THE COPIER'S MOTIVES, NEITHER THESE FACTS NOR ANY OTHERS
CAN FURNISH A BASIS FOR IMPOSING LIABILITY FOR OR PROHIBITING THE
ACTUAL ACTS OF COPYING AND SELLING.  CF. KELLOGG CO. V. NATIONAL
BISCUIT CO., 305 U.S. 111, 120 (1938).  AND OF COURSE A STATE CANNOT
HOLD A COPIER ACCOUNTABLE IN DAMAGES FOR FAILURE TO LABEL OR OTHERWISE
TO IDENTIFY HIS GOODS UNLESS HIS FAILURE IS IN VIOLATION OF VALID STATE
STATUTORY OR DECISIONAL LAW REQUIRING THE COPIER TO LABEL OR TAKE OTHER
PRECAUTIONS TO PREVENT CONFUSION OF CUSTOMERS AS TO THE SOURCE OF THE
GOODS.  (FN5) 

SINCE THE JUDGMENT BELOW FORBIDS THE SALE OF A COPY OF AN UNPATENTED
ARTICLE AND ORDERS AN ACCOUNTING FOR DAMAGES FOR SUCH COPYING, IT
CANNOT STAND.  REVERSED. 

FN1  THE SALES OF WHICH DAY-BRITE COMPLAINED IN THIS ACTION HAD
ACTUALLY BEEN MADE BY THE MITCHELL LIGHTING COMPANY.  HOWEVER, BY THE
TIME THE COMPLAINT WAS FILED, MITCHELL HAD BEEN ACQUIRED BY COMPCO,
WHICH WAS THEREFORE THE DEFENDANT IN THE ACTION AND IS THE PETITIONER
HERE.  FOR SIMPLICITY WE SHALL THROUGHOUT THE OPINION REFER ONLY TO
COMPCO EVEN THOUGH THE TRANSACTIONS FOR WHICH COMPCO WAS SOUGHT TO BE
HELD LIABLE WERE THOSE OF THE PREDECESSOR COMPANY, MITCHELL. 

FN2  THE COURT OF APPEALS ALSO AFFIRMED THE HOLDING THAT THE DESIGN
PATENT WAS INVALID.  NO REVIEW OF THIS RULING IS SOUGHT HERE. 

FN3 AS STATED IN SEARS, ROEBUCK & CO. V. STIFFEL CO., ANTE, AT P.
228, N. 2, WE DO NOT HERE DECIDE WHETHER THE COURT OF APPEALS WAS
CORRECT IN ITS STATEMENT OF ILLINOIS LAW. 

FN4  THE ONLY TESTIMONY ABOUT THIS INCIDENT WAS GIVEN BY A SALES
REPRESENTATIVE OF DAY-BRITE, WHO SAID THAT THE PLANT MANAGER HAD
CLIMBED UP ON A FORKLIFT TRUCK TO LOOK AT THE FIXTURES.  THE MANAGER
WAS NOT CALLED AS A WITNESS. 

FN5  AS WE POINTED OUT IN SEARS, ROEBUCK & CO. V. STIFFEL CO., ANTE,
P. 232, N. 9, THERE IS NO SHOWING THAT ILLINOIS HAS ANY SUCH LAW. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT.* 

*(THIS OPINION APPLIES ALSO TO NO. 108, SEARS, ROEBUCK & CO. V.
STIFFEL CO., ANTE, P. 225.) 

IN ONE RESPECT I WOULD GIVE THE STATES MORE LEEWAY IN UNFAIR
COMPETITION "COPYING" CASES THAN THE COURT'S OPINIONS WOULD ALLOW.  IF
COPYING IS FOUND, OTHER THAN BY AN INFERENCE ARISING FROM THE MERE ACT
OF COPYING, TO HAVE BEEN UNDERTAKEN WITH THE DOMINANT PURPOSE AND
EFFECT OF PALMING OFF ONE'S GOODS AS THOSE OF ANOTHER OR OF CONFUSING
CUSTOMERS AS TO THE SOURCE OF SUCH GOODS, I SEE NO REASON WHY THE STATE
MAY NOT IMPOSE REASONABLE RESTRICTIONS ON THE FUTURE "COPYING" ITSELF. 
VINDICATION OF THE PARAMOUNT FEDERAL INTEREST AT STAKE DOES NOT REQUIRE
A STATE TO TOLERATE SUCH SPECIFICALLY ORIENTED PREDATORY BUSINESS
PRACTICES.  APART FROM THIS, I AM IN ACCORD WITH THE OPINIONS OF THE
COURT, AND CONCUR IN BOTH JUDGMENTS SINCE NEITHER CASE PRESENTS THE
POINT ON WHICH I FIND MYSELF IN DISAGREEMENT. 
..END :
























PLATT, CHIEF JUDGE, U.S. DISTRICT COURT V. MINNESOTA MINING &
MANUFACTURING CO. 376 U.S. 240 


NO. 113.  ARGUED JANUARY 9, 1964.  - DECIDED MARCH 9, 1964.  - 314 F.2D
369, REVERSED AND REMANDED. 


RESPONDENT COMPANY, INDICTED FOR ANTITRUST VIOLATIONS IN AN ILLINOIS
DISTRICT, FILED A MOTION TO TRANSFER THE PROSECUTION TO THE DISTRICT OF
MINNESOTA UNDER RULE 21(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE,
WHICH PROVIDES FOR THE TRANSFER OF A MULTI-VENUE CASE WHERE IT WOULD BE
"IN THE INTEREST OF JUSTICE."  THE TRIAL JUDGE DENIED THE MOTION,
ENUMERATING TEN SEPARATE FACTORS, INCLUDING THE DIFFICULTY WHICH HE
FELT EXISTED OF OBTAINING A FAIR AND IMPARTIAL JURY IN MINNESOTA.  ON
RESPONDENT'S PETITION FOR A WRIT OF MANDAMUS, THE COURT OF APPEALS
CONCLUDED THAT THE IMPROPER FINDING AS TO A FAIR AND IMPARTIAL JURY WAS
THE "MOST IMPORTANT" FACTOR IN THE TRIAL JUDGE'S DENIAL OF THE
TRANSFER; MADE ITS OWN EVALUATION OF THE FACTORS BEARING ON TRANSFER;
AND ORDERED THE TRANSFER, HAVING ALSO DECIDED THAT A CRIMINAL DEFENDANT
HAS A RIGHT TO BE PROSECUTED IN THE DISTRICT WHERE HE RESIDES.  HELD: 

1.  THE DISTRICT COURT'S USE OF AN INAPPROPRIATE FACTOR IN DENYING
THE TRANSFER TO ANOTHER DISTRICT OF A CRIMINAL PROSECUTION DOES NOT
EMPOWER THE COURT OF APPEALS TO MAKE A DE NOVO EXAMINATION OF THE
RECORD AND EXERCISE A DISCRETIONARY FUNCTION, WHICH RULE 21(B) COMMITS
TO THE TRIAL JUDGE, BY ORDERING THE TRANSFER ITSELF.  PP. 243-245. 

2.  IN DETERMINING PROPER VENUE IN A MULTI-VENUE CRIMINAL CASE, THE
LOCATION OF THE MAIN OFFICE OR "HOME" OF A CORPORATE DEFENDANT HAS NO
INDEPENDENT SIGNIFICANCE IN DETERMINING WHETHER TRANSFER TO THAT
DISTRICT WOULD BE "IN THE INTEREST OF JUSTICE."  PP. 245-246. 

PLATT, CHIEF JUDGE, U.S. DISTRICT COURT, V. MINNESOTA MINING &
MANUFACTURING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

RULE 21(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES THAT
WHERE IT APPEARS THAT AN OFFENSE WAS COMMITTED IN MORE THAN ONE
DISTRICT OR DIVISION AND THE COURT "IS SATISFIED THAT IN THE INTEREST
OF JUSTICE THE PROCEEDING SHOULD BE TRANSFERRED" TO ANOTHER SUCH
DISTRICT OR DIVISION THAN THE ONE WHEREIN IT IS FILED, THE COURT SHALL,
UPON MOTION, TRANSFER THE CASE.  THE RESPONDENT FILED SUCH A MOTION TO
TRANSFER THIS ANTITRUST PROSECUTION FROM THE EASTERN DISTRICT OF
ILLINOIS TO THE DISTRICT OF MINNESOTA.  AFTER A HEARING, THE TRIAL
JUDGE DENIED THIS MOTION ON THE GROUND THAT THE FACTORS OF CONVENIENCE,
EXPENSE AND EARLY TRIAL, TOGETHER WITH THE FACT THAT IT "WOULD BE MORE
DIFFICULT FOR THE GOVERNMENT TO GET A FAIR AND IMPARTIAL JURY IN THE
MINNESOTA DISTRICT," CONVINCED HIM THAT "THE INTEREST OF JUSTICE" WOULD
NOT BE PROMOTED BY A TRANSFER.  THE RESPONDENT THEN PETITIONED THE
COURT OF APPEALS TO ISSUE A WRIT OF MANDAMUS (FN1) DIRECTING THE
TRANSFER.  THE COURT OF APPEALS FOUND THAT THE TRIAL JUDGE HAD TREATED
THE FACTOR OF A FAIR AND IMPARTIAL TRIAL AS THE "MOST IMPORTANT ITEM"
(FN2) IN HIS DECISION AND THAT THIS WAS NOT AN APPROPRIATE CRITERION. 
IT CONCLUDED THAT IN ADDITION TO "THE ESSENTIAL ELEMENTS OF
CONVENIENCE, EXPENSE AND EARLY TRIAL, CONSTITUTION 'INTEREST OF
JUSTICE' IN A CIVIL CASE," A CRIMINAL CASE WAS "IMPRESSED WITH THE
FUNDAMENTAL HISTORICAL RIGHT OF A DEFENDANT TO BE PROSECUTED IN ITS OWN
ENVIRONMENT OR DISTRICT  ...  ."  (FN3)  UPON REVIEWING THE RECORD, THE
COURT OF APPEALS SUBSTITUTED ITS OWN FINDINGS FOR THOSE OF THE TRIAL
JUDGE AND ORDERED THE CASE TRANSFERRED.  314 F.2D 369.  CHIEF JUDGE
HASTINGS DISSENTED.   WE GRANTED THE PETITION FOR CERTIORARI IN VIEW OF
THE IMPORTANCE OF THE QUESTIONS TO THE PROSECUTION OF MULTI-VENUE
CASES.  374 U.S. 825.  WE BELIEVE THAT THE COURT OF APPEALS ERRED IN
ORDERING THE TRANSFER AND THEREFORE VACATE ITS JUDGMENT AND REMAND THE
CASE FOR FURTHER CONSIDERATION BY THE DISTRICT COURT. 

                           I 

A GRAND JURY SITTING AT DANVILLE, IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ILLINOIS, RETURNED AN INDICTMENT CHARGING
THE RESPONDENT WITH VIOLATING SECS 1 AND 2 OF THE SHERMAN ACT.  THE
INDICTMENT CHARGED AN ATTEMPT TO MONOPOLIZE AND A CONSPIRACY TO
RESTRAIN AND MONOPOLIZE INTERSTATE AND FOREIGN COMMERCE IN PRESSURE
SENSITIVE TAPE, MAGNETIC RECORDING MEDIA AND ALUMINUM PRESENSITIZED
LITHOGRAPHIC PLATES.  THE OFFENSE WAS ALLEGED TO HAVE BEEN COMMITTED IN
PART IN THE EASTERN DISTRICT OF ILLINOIS, WHICH INCLUDES BOTH DANVILLE
AND EAST ST. LOUIS.  IT IS AGREED THAT THE INDICTMENT COULD HAVE BEEN
RETURNED IN THE DISTRICT OF MINNESOTA AS WELL AS SEVERAL OTHER
DISTRICTS. 

THE COURT OF APPEALS FOUND, IN CONTRADICTION TO THE FINDING OF THE
DISTRICT COURT, THAT A TRIAL IN THE EASTERN DISTRICT OF ILLINOIS WOULD
RESULT IN UNJUSTIFIABLE INCREASED EXPENSES TO THE RESPONDENT OF "AT
LEAST $100,000, GREAT INCONVENIENCE OF WITNESSES, SERIOUS DISRUPTION OF
BUSINESS AND INTERFERENCE OF CONTACT BETWEEN THE RESPONDENT'S
EXECUTIVES AND ITS TRIAL ATTORNEYS  ...  ."  (FN4) IT ALSO FOUND THAT
RESPONDENT HAD NO OFFICE, PLANT, OR OTHER FACILITY IN THE EASTERN
DISTRICT AND THAT THERE WAS LESS CONGESTION IN THE DOCKET OF THE
MINNESOTA DISTRICT THAN IN THE EASTERN DISTRICT OF ILLINOIS.  THE COURT
CONCLUDED THAT THIS WAS A "DEMONSTRATION BY PROOF OR ADMISSION OF THE
ESSENTIAL ELEMENTS OF CONVENIENCE, EXPENSE AND EARLY TRIAL,
CONSTITUTING 'INTEREST OF JUSTICE' IN A CIVIL CASE," (FN5) WHICH,
AUGMENTED BY THE ADDITIONAL CONSIDERATION THAT THIS WAS A CRIMINAL
ACTION, COMPELLED THE GRANTING OF THE MOTION TO TRANSFER. 

IN AWARDING THE MANDAMUS THE COURT OF APPEALS PLACED PARTICULAR
WEIGHT ON THE TRIAL JUDGE'S FINDING THAT IT "WOULD BE MORE DIFFICULT TO
GET A FAIR AND IMPARTIAL JURY IN THE MINNESOTA DISTRICT THAN IN THE
EASTERN DISTRICT OF ILLINOIS."  THE COURT OF APPEALS STATED THAT THIS
FINDING, IF TRUE (WHICH IT DOUBTED), "WOULD NOT JUSTIFY A REFUSAL TO
MAKE A TRANSFER OTHERWISE PROPER UNDER RULE 21(B)  ..."  (FN6) AND
CONCLUDED THAT "IT WOULD BE AN UNSOUND AND DANGEROUS INNOVATION IN OUR
FEDERAL COURT SYSTEM FOR A JUDGE IN ANY DISTRICT TO APPRAISE OR EVEN
SPECULATE AS TO THE EFFICACY OF THE OPERATIONS OF A FEDERAL COURT OF
CONCURRENT JURISDICTION IN ANOTHER DISTRICT.  IT FOLLOWS THAT NO ORDER
IN ANY WAY BASED UPON SUCH REASONING CAN STAND, EVEN UNDER THE GUISE OF
AN EXERCISE OF DISCRETION."  (FN7)  THE COURT OF APPEALS, BY WAY OF
FOOTNOTE, THEN CHARACTERIZED THE CONSIDERATION OF THIS FACTOR BY THE
TRIAL JUDGE AS "THE MOST IMPORTANT ITEM" (FN8) DESPITE THE TRIAL
JUDGE'S STATEMENT IN HIS ANSWER TO THE RULE TO SHOW CAUSE THAT IT "WAS
BUT ONE OF A NUMBER OF FACTORS  ... WHICH LED RESPONDENT TO HIS
CONCLUSION." 

                                  II. 

THE TRIAL JUDGE IN HIS MEMORANDUM DECISION LISTED A NUMBER OF ITEMS
AS PERTINENT IN THE DETERMINATION OF WHETHER THE CASE SHOULD BE
TRANSFERRED TO MINNESOTA "IN THE INTEREST OF JUSTICE" AS REQUIRED BY
RULE 21(B).  AS CHIEF JUDGE HASTINGS POINTED OUT IN HIS DISSENT, THESE
"FACTORS WERE (1) LOCATION OF CORPORATE DEFENDANT; (2) LOCATION OF
POSSIBLE WITNESSES; (3) LOCATION OF EVENTS LIKELY TO BE IN ISSUE; (4)
LOCATION OF DOCUMENTS AND RECORDS LIKELY TO BE INVOLVED; (5) DISRUPTION
OF DEFENDANT'S BUSINESS UNLESS THE CASE IS TRANSFERRED; (6) EXPENSE TO
THE PARTIES; (7) LOCATION OF COUNSEL; (8) RELATIVE ACCESSIBILITY OF
PLACE OF TRIAL; (9) DOCKET CONDITION OF EACH DISTRICT OR DIVISION
INVOLVED; AND (10) ANY OTHER SPECIAL ELEMENTS WHICH MIGHT AFFECT THE
TRANSFER."  (FN9) 

IT APPEARS THAT BOTH PARTIES AND THE COURT OF APPEALS AGREE THAT THE
FIRST NINE FACTORS ENUMERATED WERE APPROPRIATE.  AS WE HAVE NOTED, THE
COURT OF APPEALS STRUCK THE FAIR AND IMPARTIAL JURY FINDING AS NOT
BEING A PROPER FACTOR AND THE GOVERNMENT DOES NOT CHALLENGE THAT ACTION
HERE.  NOR HAS THE GOVERNMENT CHALLENGED THE USE OF THE EXTRAORDINARY
WRIT OF MANDAMUS AS AN APPROPRIATE MEANS TO REVIEW THE REFUSAL TO
TRANSFER.  WE SHALL, THEREFORE, NOT CONSIDER THOSE MATTERS HERE,
ASSUMING, WITHOUT DECIDING, THEIR VALIDITY FOR THE PURPOSES OF THIS
CASE.  THIS LEAVES BEFORE US THE QUESTION OF WHETHER THE COURT OF
APPEALS ERRED IN CONSIDERING THE MOTION TO TRANSFER DE NOVO ON THE
RECORD MADE IN THE DISTRICT COURT AND ORDERING TRANSFER TO THE DISTRICT
OF MINNESOTA. 

   III. 

WE CANNOT SAY, AS DID THE COURT OF APPEALS, THAT "THE MOST IMPORTANT
ITEM" IN THE TRIAL JUDGE'S MIND WHEN HE RULED AGAINST TRANSFER WAS THE
FINDING OF DIFFICULTY IN THE SELECTION OF A FAIR AND IMPARTIAL JURY IN
MINNESOTA.  THE WEIGHT THAT JUDGE PLATT GAVE THIS FACTOR IS A MATTER SO
PECULIARLY WITHIN HIS OWN KNOWLEDGE THAT IT SEEMS MORE APPROPRIATE TO
HAVE HIM RESOLVE IT.  HE HAS REPRESENTED IN HIS ANSWER THAT THIS "WAS
BUT ONE OF A NUMBER OF FACTORS."  THE DISTRICT COURT'S USE OF AN
INAPPROPRIATE FACTOR DID NOT EMPOWER THE COURT OF APPEALS TO ORDER THE
TRANSFER.  THE FUNCTION OF THE COURT OF APPEALS IN THIS CASE WAS TO
DETERMINE THE APPROPRIATE CRITERIA AND THEN LEAVE THEIR APPLICATION TO
THE TRIAL JUDGE ON REMAND.  EXTRAORDINARY WRITS ARE "RESERVED FOR
REALLY EXTRAORDINARY CAUSES," EX PARTE FAHEY, 332 U.S. 258, 260 (1947),
AND THEN ONLY "TO CONFINE AN INFERIOR COURT TO A LAWFUL EXERCISE OF ITS
PRESCRIBED JURISDICTION OR TO COMPEL IT TO EXERCISE ITS AUTHORITY WHEN
IT IS ITS DUTY TO DO SO."  ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21,
26 (1943).  HERE, HOWEVER, THE COURT OF APPEALS UNDERTOOK A DE NOVO
EXAMINATION OF THE RECORD AND ITSELF EXERCISED THE DISCRETIONARY
FUNCTION WHICH THE RULE COMMITS TO THE TRIAL JUDGE.  THIS THE COURT
SHOULD NOT HAVE DONE SINCE THE WRIT CANNOT BE USED "TO ACTUALLY CONTROL
THE DECISION OF THE TRIAL COURT."  BANKERS LIFE & CASUALTY CO. V.
HOLLAND, 346 U.S. 379, 383 (1953). 

                           IV. 

SINCE THE TRIAL COURT MUST RECONSIDER THE MOTION, EFFECTIVE JUDICIAL
ADMINISTRATION REQUIRES THAT WE COMMENT UPON THE ERRONEOUS HOLDING OF
THE COURT OF APPEALS THAT CRIMINAL DEFENDANTS HAVE A CONSTITUTIONALLY
BASED RIGHT TO A TRIAL IN THEIR HOME DISTRICTS.  ART. III, SEC 2, OF
THE CONSTITUTION PROVIDES THAT "THE TRIAL OF ALL CRIMES  ... SHALL BE
HELD IN THE STATE WHERE THE SAID CRIMES SHALL HAVE BEEN COMMITTED  ...
."  THE SIXTH AMENDMENT CARRIES A LIKE COMMAND.  AS WE SAID IN UNITED
STATES V. CORES, 356 U.S. 405, 407 (1958): "THE CONSTITUTION MAKES IT
CLEAR THAT DETERMINATION OF PROPER VENUE IN A CRIMINAL CASE REQUIRES
DETERMINATION OF WHERE THE CRIME WAS COMMITTED  ...  .  THE PROVISION
FOR TRIAL IN THE VICINITY OF THE CRIME IS A SAFEGUARD AGAINST THE
UNFAIRNESS AND HARDSHIP INVOLVED WHEN AN ACCUSED IS PROSECUTED IN A
REMOTE PLACE."  THE FACT THAT MINNESOTA IS THE MAIN OFFICE OR "HOME" OF
THE RESPONDENT HAS NO INDEPENDENT SIGNIFICANCE IN DETERMINING WHETHER
TRANSFER TO THAT DISTRICT WOULD BE "IN THE INTEREST OF JUSTICE,"
ALTHOUGH IT MAY BE CONSIDERED WITH REFERENCE TO SUCH FACTORS AS THE
CONVENIENCE OF RECORDS, OFFICERS, PERSONNEL AND COUNSEL. 

THE JUDGMENT OF THE COURT OF APPEALS IS THEREFORE REVERSED AND THE
CAUSE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE
JUDGMENT OF THE DISTRICT COURT AND TO REMAND THE CASE FOR
RECONSIDERATION OF THE MOTION FOR TRANSFER, WITHOUT REFERENCE TO THE
ABILITY OF THE UNITED STATES TO RECEIVE A FAIR AND IMPARTIAL TRIAL IN
MINNESOTA.  IT IS SO ORDERED. 

FN1 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. SEC 1651(A). 

FN2  314 F.2D 369, 371, N. 1. 

FN3  ID., AT 375. 

FN4  ID., AT 375, N. 3. 

FN5  ID., AT 375. 

FN6  ID., AT 373. 

FN7  ID., AT 375. 

FN8 ID., AT 371, N. 1. 

FN9  ID., AT 376-377. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION WITH THE FOLLOWING BRIEF COMMENTS. 

FIRST, FOR MYSELF I WISH TO MAKE EXPLICIT WHAT IS INDEED IMPLICIT IN
THE COURT'S OPINION, NAMELY, THAT THE COURT OF APPEALS WAS ENTIRELY
CORRECT IN HOLDING THAT THE DISTRICT COURT'S SPECULATION THAT THE
GOVERNMENT MIGHT NOT BE ABLE TO OBTAIN AN IMPARTIAL JURY IN THE
MINNESOTA DISTRICT WAS WHOLLY OUT OF BOUNDS. 

SECOND, WHILE THE COURT OF APPEALS' OUTRIGHT REVERSAL OF THE DISTRICT
COURT UNDERSTANDABLY REFLECTS ITS VIEW THAT THE OTHER FACTORS MAKING
FOR A CHANGE OF VENUE, WHEN STRIPPED OF THE IMPERMISSIBLE "IMPARTIAL
JURY" CONSIDERATION, ARE INDEED STRONG, SUCH ACTION CANNOT WELL BE
REGARDED AS OTHER THAN A DE NOVO DETERMINATION OF THE CHANGE OF VENUE
MOTION ON THE PART OF THE COURT OF APPEALS.  SUCH A COURSE INESCAPABLY
CONTRAVENES ACCEPTED PRINCIPLES GOVERNING THE EXERCISE OF APPELLATE
JURISDICTION. 
..END :















LOCAL UNION NO. 721, UNITED PACKINGHOUSE, FOOD & ALLIED WORKERS, AFL-CIO
V. NEEDHAM PACKING CO., DBA SIOUX CITY DRESSED BEEF 376 U.S. 247 


NO. 102.  ARGUED FEBRUARY 20, 1964.  - DECIDED MARCH 9, 1964.  - 254
IOWA 882, 119 N.W.2D 141, REVERSED AND REMANDED. 


UNDER SEC 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT, PETITIONER
LABOR UNION SUED IN A STATE COURT TO COMPEL ARBITRATION OF THE CLAIMED
WRONGFUL DISCHARGE OF EMPLOYEES, THE ACTION BEING BASED ON A COLLECTIVE
BARGAINING AGREEMENT PROVIDING FOR ARBITRATION AT THE UNION'S REQUEST
OF DISPUTES WHICH THE PARTIES COULD NOT SETTLE.  RESPONDENT EMPLOYER
CONTENDED THAT THE UNION HAD STRUCK IN VIOLATION OF A NO-STRIKE CLAUSE
IN THAT AGREEMENT, THEREBY TERMINATING THE EMPLOYER'S OBLIGATIONS
THEREUNDER, AND IT COUNTERCLAIMED FOR DAMAGES FOR BREACH OF THE NO
STRIKE CLAUSE.  THE STATE SUPREME COURT AFFIRMED A LOWER COURT RULING
THAT THE UNION BY ITS WALKOUT HAD WAIVED ITS RIGHT TO ARBITRATE THE
GRIEVANCES.  HELD:  THE UNION'S ALLEGED BREACH OF ITS PROMISE IN THE
COLLECTIVE BARGAINING ARGREEMENT NOT TO STRIKE DID NOT RELIEVE THE
EMPLOYER OF ITS DUTY UNDER SUCH AGREEMENT TO ARBITRATE, THERE BEING NO
INFLEXIBLE RULE THAT THE DUTY TO ARBITRATE DEPENDS UPON OBSERVANCE OF
THE PROMISE NOT TO STRIKE.  DRAKE BAKERIES, INC., V. BAKERY WORKERS,
370 U.S. 254, FOLLOWED.  PP. 248-253. 

(A)  A STATE COURT EXERCISING ITS CONCURRENT JURISDICTION OVER SUITS
UNDER SEC 301(A) APPLIES FEDERAL SUBSTANTIVE LAW.  P. 250. 

(B)  THOUGH THE EMPLOYER IS OBLIGED TO ARBITRATE THE UNION'S
GRIEVANCES IT CAN PURSUE ITS CLAIM FOR DAMAGES IN THE STATE COURT FOR
THE ALLEGED BREACH OF THE NO-STRIKE CLAUSE.  PP. 252-253. 

(C)  THE EMPLOYER IS NOT RELEASED FROM ITS DUTY TO ARBITRATE BY THE
PASSAGE OF TIME RESULTING FROM ITS REFUSAL TO DO SO.  P. 253. 

LOCAL UNION NO. 721, UNITED PACKINGHOUSE, FOOD & ALLIED WORKERS, AFL
CIO, V. NEEDHAM PACKING CO., DOING BUSINESS AS SIOUX CITY DRESSED
BEEF. 

CERTIORARI TO THE SUPREME COURT OF IOWA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, WHICH WAS BROUGHT HERE FROM THE SUPREME COURT OF IOWA, 374
U.S. 826, PRESENTS A PROBLEM CONCERNING THE RELATIONSHIP BETWEEN AN
ARBITRATION CLAUSE AND A NO-STRIKE CLAUSE IN A COLLECTIVE BARGAINING
AGREEMENT. 

ALTHOUGH THIS CASE COMES TO US ON THE PLEADINGS AND SOME DISPUTED
QUESTIONS OF FACT ARE STILL TO BE RESOLVED, WE ACCEPT AS TRUE THE
FOLLOWING FACTS FOR THE PURPOSES OF OUR DECISION.  THE PETITIONER,
LOCAL UNION NO. 721, UNITED PACKINGHOUSE, FOOD AND ALLIED WORKERS, AFL
CIO, AND THE RESPONDENT, NEEDHAM PACKING CO., HAD AN AGREEMENT WHICH
INCLUDED PROVISIONS OF BOTH KINDS, SET OUT HEARAFTER.  ON MAY 11, 1961,
NEEDHAM DISCHARGED ANTON STAMOULIS, AN EMPLOYEE REPRESENTED BY THE
UNION.  IN RESPONSE, ON THE SAME DAY ABOUT 190 OTHER EMPLOYEES LEFT
WORK.  DURING THE NEXT FEW DAYS NEEDHAM ADVISED THE EMPLOYEES TO RETURN
TO WORK, STATING THAT IF THEY DID NOT THEIR EMPLOYMENT WOULD BE
REGARDED AS TERMINATED AND THAT THE DISCHARGE OF STAMOULIS WOULD BE
TREATED UNDER THE GRIEVANCE PROCEDURES OF THE COLLECTIVE BARGAINING
AGREEMENT.  THE EMPLOYEES DID NOT RETURN TO WORK. 

ON JULY 5, 1961, THE UNION PRESENTED TO NEEDHAM WRITTEN GRIEVANCES ON
BEHALF OF STAMOULIS AND THE OTHER EMPLOYEES, ASSERTING THAT THEY HAD
BEEN "IMPROPERLY DISCHARGED" AND REQUESTING THEIR REINSTATEMENT WITH
FULL SENIORITY RIGHTS AND PAY FOR LOST TIME.  BY LETTER DATED JULY 11,
1961, NEEDHAM REFUSED TO PROCESS THE GRIEVANCES.  THE LETTER STATED
THAT THE UNION AND ITS MEMBERS HAD BY THEIR CONDUCT "REPUDIATED AND
TERMINATED THE LABOR AGREEMENT" WITH THE COMPANY.  IN ADDITION, NEEDHAM
STATED THAT IT WOULD NOT HAVE FURTHER DEALINGS WITH THE UNION AND DID
NOT RECOGNIZE THE UNION AS MAJORITY REPRESENTATIVE OF NEEDHAM
EMPLOYEES. 

THIS SUIT BY THE UNION UNDER SEC 301(A) OF THE LABOR MANAGEMENT
RELATIONS ACT, 29 U.S.C.  SEC 185(A), TO COMPEL ARBITRATION OF THE TWO
GRIEVANCES FOLLOWED.  NEEDHAM ALLEGED AS A DEFENSE THAT THE UNION AND
ITS MEMBERS HAD STRUCK ON MAY 11, 1961, AND THAT THIS BREACH OF THE NO
STRIKE CLAUSE OF THE COLLECTIVE BARGAINING AGREEMENT HAD BEEN AND WAS
TREATED BY NEEDHAM AS HAVING TERMINATED ITS OBLIGATIONS UNDER THE
AGREEMENT.  IN ADDITION, NEEDHAM FILED A COUNTERCLAIM, ALLEGING THAT IT
HAD BEEN DAMAGED IN THE AMOUNT OF $150,000 BY THE UNION'S BREACH OF THE
NO-STRIKE CLAUSE.  THE UNION DENIED SUCH BREACH.  AT THE CLOSE OF THE
PLEADINGS, IN ACCORDANCE WITH IOWA PROCEDURE, NEEDHAM MOVED FOR A
RULING ON POINTS OF LAW AND A FINAL ORDER DENYING THE UNION'S PETITION
TO COMPEL ARBITRATION.  (FN1)  DECIDING SOLELY ON THE BASIS OF MATTERS
RAISED IN THE PLEADINGS AS TO WHICH THERE WAS NO DISPUTE, THE TRIAL
COURT RULED IN NEEDHAM'S FAVOR AND ISSUED AN ORDER AGAINST THE UNION. 
THE UNION OBTAINED AN APPEAL.  THE SUPREME COURT OF IOWA AFFIRMED THE
HOLDING BELOW THAT "THE UNION HAD WAIVED ITS RIGHT TO ARBITRATE THE
GRIEVANCES FILED BY ITS WALKOUT."  254 IOWA 882, 887, 119 N.W.2D 141,
143.  (FN2) 

IN THE PRESENT POSTURE OF THIS CASE, WE MUST ANSWER THE QUESTION
WHETHER ACTS OF THE UNION RELIEVED NEEDHAM OF ITS CONTRACTUAL
OBLIGATION TO ARBITRATE ALMOST ENTIRELY ON THE BASIS OF THE AGREEMENT
ITSELF.  WE THINK IT PLAIN THAT, SEEN FROM THAT PERSPECTIVE, THE
JUDGMENT BELOW MUST BE REVERSED. 

THE TWO CONTROLLING PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT
ARE WRITTEN IN COMPREHENSIVE TERMS.  THE NO-STRIKE CLAUSE PROVIDES: 

"IT IS AGREED THAT DURING THE PERIOD OF THIS AGREEMENT THE EMPLOYEES
SHALL NOT ENGAGE IN AND THE UNION SHALL NOT CALL OR SANCTION ANY SLOW
DOWN, WORK STOPPAGE OR STRIKE  ...  ." 

THE GRIEVANCE PROVISIONS INCLUDE TYPICAL PROCEDURES FOR THE
RESOLUTION OF A DISPUTE PRELIMINARY TO ARBITRATION.  THEY THEN
PROVIDE: 

"IN THE EVENT A DISPUTE SHALL ARISE BETWEEN THE COMPANY AND THE UNION
WITH REFERENCE TO THE PROPER INTERPRETATION OR APPLICATION OF THE
PROVISIONS OF THIS CONTRACT AND SUCH DISPUTE CANNOT BE SETTLED BY
MUTUAL AGREEMENT OF THE PARTIES, SUCH DISPUTE SHALL BE REFERRED TO A
BOARD OF ARBITRATION UPON THE REQUEST OF THE UNION." 

IT IS EVIDENT FROM THE ABOVE AS WELL AS OTHER PROVISIONS OF THE
AGREEMENT (FN3) THAT THE GRIEVANCE PROCEDURES WERE INTENDED LARGELY, IF
NOT WHOLLY, FOR THE BENEFIT OF THE UNION. 

A STATE COURT EXERCISING ITS CONCURRENT JURISDICTION OVER SUITS UNDER
SEC 301(A) APPLIES FEDERAL SUBSTANTIVE LAW.  CHARLES DOWD BOX CO.,
INC., V. COURTNEY, 368 U.S. 502.  THE LAW WHICH CONTROLS THE
DISPOSITION OF THIS CASE IS STATED IN DRAKE BAKERIES INC. V. LOCAL 50,
AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL, AFL-CIO, 370
U.S. 254.  IN THAT CASE, THE EMPLOYER HAD FILED AN ACTION FOR DAMAGES
UNDER SEC 301(A), ALLEGING THAT THE UNION HAD "INSTIGATED AND
ENCOURAGED ITS MEMBERS TO STRIKE OR NOT TO REPORT FOR WORK," IN
VIOLATION OF A NO-STRIKE CLAUSE.  ID., AT 256.  THE COLLECTIVE
BARGAINING AGREEMENT CONTAINED A BROAD ARBITRATION CLAUSE COVERING "ALL
COMPLAINTS, DISPUTES OR GRIEVANCES ARISING BETWEEN  ...  THE PARTIES
INVOLVING QUESTIONS OF INTERPRETATION OR APPLICATION OF ANY CLAUSE OR
MATTER COVERED BY THIS CONTRACT OR ANY ACT OR CONDUCT OR RELATION
BETWEEN THE PARTIES HERETO, DIRECTLY OR INDIRECTLY."  ID., AT 257. 

THE EMPLOYER ARGUED THAT THE PROMISE NOT TO STRIKE WAS SO BASIC TO
THE COLLECTIVE BARGAIN AND BREACH OF THE NO-STRIKE CLAUSE SO COMPLETELY
INCONSISTENT WITH THE PROVISION FOR ARBITRATION THAT THE EMPLOYER'S
DUTY TO ARBITRATE WAS EXCUSED BY THE UNION'S BREACH.  THIS ARGUMENT,
WHICH IS ESSENTIALLY THAT OF NEEDHAM HERE, WAS REJECTED ON GROUNDS
FULLY APPLICABLE TO THIS CASE.  ALTHOUGH THE COURT RELIED IN PART ON
THE EMPLOYER'S APPARENT INTENTION NOT TO TERMINATE THE CONTRACT
ALTOGETHER, MORE CENTRAL TO ITS CONCLUSION WAS THE VIEW THAT THERE WAS
NO "INFLEXIBLE RULE RIGIDLY LINKING NO-STRIKE AND ARBITRATION CLAUSES
OF EVERY COLLECTIVE BARGAINING CONTRACT IN EVERY SITUATION."  ID., AT
261.  WE SAID: 

"  ...  UNDER THIS CONTRACT, BY AGREEING TO ARBITRATE ALL CLAIMS
WITHOUT EXCLUDING THE CASE WHERE THE UNION STRUCK OVER AN ARBITRABLE
MATTER, THE PARTIES HAVE NEGATIVED ANY INTENTION TO CONDITION THE DUTY
TO ARBITRATE UPON THE ABSENCE OF STRIKES.  THEY HAVE THUS CUT THE
GROUND FROM UNDER THE ARGUMENT THAT AN ALLEGED STRIKE, AUTOMATICALLY
AND REGARDLESS OF THE CIRCUMSTANCES, IS SUCH A BREACH OR REPUDIATION OF
THE ARBITRATION CLAUSE BY THE UNION THAT THE COMPANY IS EXCUSED FROM
ARBITRATING, UPON THEORIES OF WAIVER, ESTOPPEL, OR OTHERWISE. 
ARBITRATION PROVISIONS, WHICH THEMSELVES HAVE NOT BEEN REPUDIATED, ARE
MEANT TO SURVIVE BREACHES OF CONTRACT, IN MANY CONTEXTS, EVEN TOTAL
BREACH; AND IN DETERMINING WHETHER ONE PARTY HAS SO REPUDIATED HIS
PROMISE TO ARBITRATE THAT THE OTHER PARTY IS EXCUSED THE CIRCUMSTANCES
OF THE CLAIMED REPUDIATION ARE CRITICALLY IMPORTANT.  IN THIS CASE THE
UNION DENIES HAVING REPUDIATED IN ANY RESPECT ITS PROMISE TO ARBITRATE,
DENIES THAT THERE WAS A STRIKE, DENIES THAT THE EMPLOYEES WERE BOUND TO
WORK ON JANUARY 2 AND ASSERTS THAT IT WAS THE COMPANY ITSELF WHICH
IGNORED THE ADJUSTMENT AND ARBITRATION PROVISIONS BY SCHEDULING HOLIDAY
WORK."  ID., AT 262-263. 

CONTINUANCE OF THE DUTY TO ARBITRATE IS, IF ANYTHING, CLEARER HERE
THAN IT WAS IN DRAKE BAKERIES, WHERE ONE OF THE ISSUES WAS WHETHER AN
ALLEGED STRIKE WAS WITHIN THE INTENDED SCOPE OF THE ARBITRATION
CLAUSE.  THERE IS NO QUESTION IN THIS CASE THAT THE UNION'S CLAIM OF
WRONGFUL DISCHARGE IS ONE WHICH NEEDHAM AGREED TO ARBITRATE.  (FN4)
NOTHING IN THE AGREEMENT INDICATES AN INTENTION TO EXCEPT FROM
NEEDHAM'S AGREEMENT TO ARBITRATE DISPUTES CONCERNING THE
"INTERPRETATION OR APPLICATION" OF THE AGREEMENT ANY DISPUTE WHICH
INVOLVES OR FOLLOWS AN ALLEGED BREACH OF THE NO-STRIKE CLAUSE.  THAT
THE NO-STRIKE CLAUSE DOES NOT ITSELF CARRY SUCH AN IMPLICATION IS THE
HOLDING OF DRAKE BAKERIES. 

THE FACT THAT THE COLLECTIVE BARGAINING AGREEMENT DOES NOT REQUIRE
NEEDHAM TO SUBMIT ITS CLAIM TO ARBITRATION, AS THE EMPLOYER WAS
REQUIRED TO DO IN DRAKE BAKERIES, AND INDEED APPEARS TO CONFINE THE
GRIEVANCE PROCEDURES TO GRIEVANCES OF THE UNION, DOES NOT INDICATE A
DIFFERENT RESULT.  NEEDHAM'S CLAIM IS THE SUBJECT OF A COUNTERCLAIM IN
THE IOWA COURTS; NOTHING WE HAVE SAID HERE PRECLUDES IT FROM
PROSECUTING THAT CLAIM AND RECOVERING DAMAGES.  (FN5)  THAT NEEDHAM
ASSERTS BY WAY OF DEFENSE TO THE UNION'S ACTION TO COMPEL ARBITRATION
THE SAME ALLEGED BREACH OF THE NO-STRIKE CLAUSE WHICH IS THE SUBJECT OF
THE COUNTERCLAIM DOES NOT CONVERT THE UNION'S GRIEVANCE INTO NEEDHAM'S
DIFFERENT ONE.   (FN6) 

NOR DO WE BELIEVE THAT THIS CASE CAN BE DISTINGUISHED FROM DRAKE
BAKERIES ON THE GROUND THAT THAT CASE INVOLVED ONLY A "ONE-DAY STRIKE,"
ID., AT 265.  WHETHER A FUNDAMENTAL AND LONG-LASTING CHANGE IN THE
RELATIONSHIP OF THE PARTIES PRIOR TO THE DEMAND FOR ARBITRATION WOULD
BE A CIRCUMSTANCE WHICH, ALONE OR AMONG OTHERS, WOULD RELEASE AN
EMPLOYER FROM HIS PROMISE TO ARBITRATE WE NEED NOT DECIDE, SINCE THE
UNDEVELOPED RECORD BEFORE US REVEALS NO SUCH CIRCUMSTANCE.  COMPARE
DRAKE BAKERIES, SUPRA, AT 265.  THE PASSAGE OF TIME RESULTING FROM
NEEDHAM'S REFUSAL TO ARBITRATE CANNOT, OF COURSE, BE A BASIS FOR
RELEASING IT FROM ITS DUTY TO ARBITRATE. 

NEEDHAM'S ALLEGATIONS BY WAY OF DEFENSE AND COUNTERCLAIM THAT THE
UNION BREACHED THE NO-STRIKE CLAUSE, SUPPORTED BY SUCH FACTS AS WERE
UNDISPUTED ON THE PLEADINGS, DID NOT RELEASE NEEDHAM FROM ITS DUTY TO
ARBITRATE THE UNION'S CLAIM THAT EMPLOYEES HAD BEEN WRONGFULLY
DISCHARGED.  ON THAT BASIS, WE REVERSE AND REMAND TO THE IOWA SUPREME
COURT FOR FURTHER PROCEEDINGS.  IT IS SO ORDERED. 

FN1  RULE 105 OF THE IOWA RULES OF CIVIL PROCEDURE PROVIDES: 

"THE COURT MAY IN ITS DISCRETION, AND MUST ON APPLICATION OF EITHER
PARTY, MADE AFTER ISSUES JOINED AND BEFORE TRIAL, SEPARATELY HEAR AND
DETERMINE ANY POINT OF LAW RAISED IN ANY PLEADING WHICH GOES TO THE
WHOLE OR ANY MATERIAL PART OF THE CASE.  IT SHALL ENTER AN APPROPRIATE
FINAL ORDER BEFORE TRIAL OF THE REMAINING ISSUES, ADJUDICATING THE
POINT SO DETERMINED, WHICH SHALL NOT BE QUESTIONED ON THE TRIAL OF ANY
PART OF THE CASE OF WHICH IT DOES NOT DISPOSE.  IF SUCH RULING DOES NOT
DISPOSE OF THE WHOLE CASE, IT SHALL BE DEEMED INTERLOCUTORY FOR
PURPOSES OF APPEAL." 

FN2  ALTHOUGH RULE 105 PROVIDES THAT A FINAL ORDER ENTERED UNDER IT
SHALL BE "DEEMED INTERLOCUTORY FOR PURPOSES OF APPEAL," THE ORDER WHICH
IS ENTERED IS A "FINAL ORDER  ...  ADJUDICATING THE POINT SO
DETERMINED, WHICH SHALL NOT BE QUESTIONED ON THE TRIAL OF ANY PART OF
THE CASE OF WHICH IT DOES NOT DISPOSE."  SEE SUPRA, NOTE 1. 
ACCORDINGLY, OUR JURISDICTION WAS PROPERLY INVOKED. 

FN3  FOR EXAMPLE, THE AGREEMENT PROVIDES THAT GRIEVANCES MUST BE
PRESENTED WITHIN 14 DAYS "OF THE OCCURRENCE GIVING RISE TO SUCH
GRIEVANCE" OR WITHIN 14 DAYS "OF THE TIME THE UNION HAS KNOWLEDGE, OR
SHOULD HAVE HAD KNOWLEDGE OF SUCH GRIEVANCE  ...  ." 

FN4  IN EFFECT, THE UNION'S GRIEVANCE INVOLVED THE "INTERPRETATION OR
APPLICATION" OF SEC 8(A) OF THE COLLECTIVE BARGAINING AGREEMENT, WHICH
PROVIDED THAT NEEDHAM COULD DISCHARGE EMPLOYEES "FOR JUST CAUSE." 

FN5  HERE, AS IN ATKINSON V. SINCLAIR REFINING CO., 370 U.S. 238, WE
FIND IT UNNECESSARY TO DECIDE WHAT EFFECT, IF ANY, FACTUAL OR LEGAL
DETERMINATIONS OF AN ARBITRATOR WOULD HAVE ON A RELATED ACTION IN THE
COURTS.  SEE ID., AT 245, NOTE 5. 

FN6  ATKINSON V. SINCLAIR REFINING CO., 370 U.S. 238, IN WHICH THE
PROVISION FOR ARBITRATION WAS SIMILARLY LIMITED TO EMPLOYEE GRIEVANCES,
IS OF NO RELEVANCE HERE, SINCE THE QUESTION IN THAT CASE WAS WHETHER
THE EMPLOYER'S ACTION FOR BREACH OF THE NO-STRIKE CLAUSE SHOULD BE
SUBMITTED TO ARBITRATION. 
..END :






NEW YORK TIMES CO. V. SULLIVAN 376 U.S. 254 


NO. 39.  ARGUED JANUARY 6, 1964.  - DECIDED MARCH 9, 1964.* - 273 ALA.
656, 144 SO. 2D 25, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 40, ABERNATHY ET AL. V. SULLIVAN, ALSO ON
CERTIORARI TO THE SAME COURT, ARGUED JANUARY 7, 1964. 


RESPONDENT, AN ELECTED OFFICIAL IN MONTGOMERY, ALABAMA, BROUGHT SUIT
IN A STATE COURT ALLEGING THAT HE HAD BEEN LIBELED BY AN ADVERTISEMENT
IN CORPORATE PETITIONER'S NEWSPAPER, THE TEXT OF WHICH APPEARED OVER
THE NAMES OF THE FOUR INDIVIDUAL PETITIONERS AND MANY OTHERS.  THE
ADVERTISEMENT INCLUDED STATEMENTS, SOME OF WHICH WERE FALSE, ABOUT
POLICE ACTION ALLEGEDLY DIRECTED AGAINST STUDENTS WHO PARTICIPATED IN A
CIVIL RIGHTS DEMONSTRATION AND AGAINST A LEADER OF THE CIVIL RIGHTS
MOVEMENT; RESPONDENT CLAIMED THE STATEMENTS REFERRED TO HIM BECAUSE HIS
DUTIES INCLUDED SUPERVISION OF THE POLICE DEPARTMENT.  THE TRIAL JUDGE
INSTRUCTED THE JURY THAT SUCH STATEMENTS WERE "LIBELOUS PER SE," LEGAL
INJURY BEING IMPLIED WITHOUT PROOF OF ACTUAL DAMAGES, AND THAT FOR THE
PURPOSE OF COMPENSATORY DAMAGES MALICE WAS PRESUMED, SO THAT SUCH
DAMAGES COULD BE AWARDED AGAINST PETITIONERS IF THE STATEMENTS WERE
FOUND TO HAVE BEEN PUBLISHED BY THEM AND TO HAVE RELATED TO
RESPONDENT.  AS TO PUNITIVE DAMAGES, THE JUDGE INSTRUCTED THAT MERE
NEGLIGENCE WAS NOT EVIDENCE OF ACTUAL MALICE AND WOULD NOT JUSTIFY AN
AWARD OF PUNITIVE DAMAGES; HE REFUSED TO INSTRUCT THAT ACTUAL INTENT TO
HARM OR RECKLESSNESS HAD TO BE FOUND BEFORE PUNITIVE DAMAGES COULD BE
AWARDED, OR THAT A VERDICT FOR RESPONDENT SHOULD DIFFERENTIATE BETWEEN
COMPENSATORY AND PUNITIVE DAMAGES.  THE JURY FOUND FOR RESPONDENT AND
THE STATE SUPREME COURT AFFIRMED.  HELD:  A STATE CANNOT UNDER THE
FIRST AND FOURTEENTH AMENDMENTS AWARD DAMAGES TO A PUBLIC OFFICIAL FOR
DEFAMATORY FALSEHOOD RELATING TO HIS OFFICIAL CONDUCT UNLESS HE PROVES
"ACTUAL MALICE" - THAT THE STATEMENT WAS MADE WITH KNOWLEDGE OF ITS
FALSITY OR WITH RECKLESS DISREGARD OF WHETHER IT WAS TRUE OR FALSE. 
PP. 265-292. 

(A)  APPLICATION BY STATE COURTS OF A RULE OF LAW, WHETHER STATUTORY
OR NOT, TO AWARD A JUDGMENT IN A CIVIL ACTION, IS "STATE ACTION" UNDER
THE FOURTEENTH AMENDMENT.  P. 265. 

(B)  EXPRESSION DOES NOT LOSE CONSTITUTIONAL PROTECTION TO WHICH IT
WOULD OTHERWISE BE ENTITLED BECAUSE IT APPEARS IN THE FORM OF A PAID
ADVERTISEMENT.  PP. 265-266. 

(C)  FACTUAL ERROR, CONTENT DEFAMATORY OF OFFICIAL REPUTATION, OR
BOTH, ARE INSUFFICIENT TO WARRANT AN AWARD OF DAMAGES FOR FALSE
STATEMENTS UNLESS "ACTUAL MALICE" - KNOWLEDGE THAT STATEMENTS ARE FALSE
OR IN RECKLESS DISREGARD OF THE TRUTH - IS ALLEGED AND PROVED.  PP. 279
283. 

(D)  STATE COURT JUDGMENT ENTERED UPON A GENERAL VERDICT WHICH DOES
NOT DIFFERENTIATE BETWEEN PUNITIVE DAMAGES, AS TO WHICH UNDER STATE LAW
ACTUAL MALICE MUST BE PROVED, AND GENERAL DAMAGES, AS TO WHICH IT IS
"PRESUMED," PRECLUDES ANY DETERMINATION AS TO THE BASIS OF THE VERDICT
AND REQUIRES REVERSAL, WHERE PRESUMPTION OF MALICE IS INCONSISTENT WITH
FEDERAL CONSTITUTIONAL REQUIREMENTS.  P. 284. 

(E)  THE EVIDENCE WAS CONSTITUTIONALLY INSUFFICIENT TO SUPPORT THE
JUDGMENT FOR RESPONDENT, SINCE IT FAILED TO SUPPORT A FINDING THAT THE
STATEMENTS WERE MADE WITH ACTUAL MALICE OR THAT THEY RELATED TO
RESPONDENT.  PP. 285-292. 

NEW YORK TIMES CO. V. SULLIVAN. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

WE ARE REQUIRED IN THIS CASE TO DETERMINE FOR THE FIRST TIME THE
EXTENT TO WHICH THE CONSTITUTIONAL PROTECTIONS FOR SPEECH AND PRESS
LIMIT A STATE'S POWER TO AWARD DAMAGES IN A LIBEL ACTION BROUGHT BY A
PUBLIC OFFICIAL AGAINST CRITICS OF HIS OFFICIAL CONDUCT. 

RESPONDENT L.B. SULLIVAN IS ONE OF THE THREE ELECTED COMMISSIONERS OF
THE CITY OF MONTGOMERY, ALABAMA.  HE TESTIFIED THAT HE WAS
"COMMISSIONER OF PUBLIC AFFAIRS AND THE THE DUTIES ARE SUPERVISION OF
THE POLICE DEPARTMENT, FIRE DEPARTMENT, DEPARTMENT OF CEMETERY AND
DEPARTMENT OF SCALES."  HE BROUGHT THIS CIVIL LIBEL ACTION AGAINST THE
FOUR INDIVIDUAL PETITIONERS, WHO ARE NEGROES AND ALABAMA CLERGYMEN, AND
AGAINST PETITIONER THE NEW YORK TIMES COMPANY, A NEW YORK CORPORATION
WHICH PUBLISHES THE NEW YORK TIMES, A DAILY NEWSPAPER.  A JURY IN THE
CIRCUIT COURT OF MONTGOMERY COUNTY AWARDED HIM DAMAGES OF $500,000, THE
FULL AMOUNT CLAIMED, AGAINST ALL THE PETITIONERS, AND THE SUPREME COURT
OF ALABAMA AFFIRMED.  273 ALA. 656, 144 SO. 2D 25. 

RESPONDENT'S COMPLAINT ALLEGED THAT HE HAD BEEN LIBELED BY STATEMENTS
IN A FULL-PAGE ADVERTISEMENT THAT WAS CARRIED IN THE NEW YORK TIMES ON
MARCH 29, 1960.  (FN1)  ENTITLED "HEED THEIR RISING VOICES," THE
ADVERTISEMENT BEGAN BY STATING THAT "AS THE WHOLE WORLD KNOWS BY NOW,
THOUSANDS OF SOUTHERN NEGRO STUDENTS ARE ENGAGED IN WIDESPREAD NON
VIOLENT DEMONSTRATIONS IN POSITIVE AFFIRMATION OF THE RIGHT TO LIVE IN
HUMAN DIGNITY AS GUARANTEED BY THE U.S. CONSTITUTION AND THE BILL OF
RIGHTS."  IT WENT ON TO CHARGE THAT "IN THEIR EFFORTS TO UPHOLD THESE
GUARANTEES, THEY ARE BEING MET BY AN UNPRECEDENTED WAVE OF TERROR BY
THOSE WHO WOULD DENY AND NEGATE THAT DOCUMENT WHICH THE WHOLE WORLD
LOOKS UPON AS SETTING THE PATTERN FOR MODERN FREEDOM  ...  ." 
SUCCEEDING PARAGRAPHS PURPORTED TO ILLUSTRATE THE "WAVE OF TERROR" BY
DESCRIBING CERTAIN ALLEGED EVENTS.  THE TEXT CONCLUDED WITH AN APPEAL
FOR FUNDS FOR THREE PURPOSES:  SUPPORT OF THE STUDENT MOVEMENT, "THE
STRUGGLE FOR THE RIGHT-TO-VOTE," AND THE LEGAL DEFENSE OF DR. MARTIN
LUTHER KING, JR., LEADER OF THE MOVEMENT, AGAINST A PERJURY INDICTMENT
THEN PENDING IN MONTGOMERY. 

THE TEXT APPEARED OVER THE NAMES OF 64 PERSONS, MANY WIDELY KNOWN FOR
THEIR ACTIVITIES IN PUBLIC AFFAIRS, RELIGION, TRADE UNIONS, AND THE
PERFORMING ARTS.  BELOW THESE NAMES, AND UNDER A LINE READING "WE IN
THE SOUTH WHO ARE STRUGGLING DAILY FOR DIGNITY AND FREEDOM WARMLY
ENDORSE THIS APPEAL," APPEARED THE NAMES OF THE FOUR INDIVIDUAL
PETITIONERS AND OF 16 OTHER PERSONS, ALL BUT TWO OF WHOM WERE
IDENTIFIED AS CLERGYMEN IN VARIOUS SOUTHERN CITIES.  THE ADVERTISEMENT
WAS SIGNED AT THE BOTTOM OF THE PAGE BY THE "COMMITTEE TO DEFEND MARTIN
LUTHER KING AND THE STRUGGLE FOR FREEDOM IN THE SOUTH," AND THE
OFFICERS OF THE COMMITTEE WERE LISTED. 

OF THE 10 PARAGRAPHS OF TEXT IN THE ADVERTISEMENT, THE THIRD AND A
PORTION OF THE SIXTH WERE THE BASIS OF RESPONDENT'S CLAIM OF LIBEL. 
THEY READ AS FOLLOWS: 

THIRD PARAGRAPH: 

"IN MONTGOMERY, ALABAMA, AFTER STUDENTS SANG 'MY COUNTRY, 'TIS OF
THEE' ON THE STATE CAPITOL STEPS, THEIR LEADERS WERE EXPELLED FROM
SCHOOL, AND TRUCKLOADS OF POLICE ARMED WITH SHOTGUNS AND TEAR-GAS
RINGED THE ALABAMA STATE COLLEGE CAMPUS.  WHEN THE ENTIRE STUDENT BODY
PROTESTED TO STATE AUTHORITIES BY REFUSING TO RE-REGISTER, THEIR DINING
HALL WAS PADLOCKED IN AN ATTEMPT TO STARVE THEM INTO SUBMISSION." 

SIXTH PARAGRAPH: 

"AGAIN AND AGAIN THE SOUTHERN VIOLATORS HAVE ANSWERED DR. KING'S
PEACEFUL PROTESTS WITH INTIMIDATION AND VIOLENCE.  THEY HAVE BOMBED HIS
HOME ALMOST KILLING HIS WIFE AND CHILD.  THEY HAVE ASSAULTED HIS
PERSON.  THEY HAVE ARRESTED HIM SEVEN TIMES - FOR 'SPEEDING,'
'LOITERING' AND SIMILAR 'OFFENSES.'  AND NOW THEY HAVE CHARGED HIM WITH
'PERJURY' - A FELONY UNDER WHICH THEY COULD IMPRISON HIM FOR TEN YEARS
...  ." 

ALTHOUGH NEITHER OF THESE STATEMENTS MENTIONS RESPONDENT BY NAME, HE
CONTENDED THAT THE WORD "POLICE" IN THE THIRD PARAGRAPH REFERRED TO HIM
AS THE MONTGOMERY COMMISSIONER WHO SUPERVISED THE POLICE DEPARTMENT, SO
THAT HE WAS BEING ACCUSED OF "RINGING" THE CAMPUS WITH POLICE.  HE
FURTHER CLAIMED THAT THE PARAGRAPH WOULD BE READ AS IMPUTING TO THE
POLICE, AND HENCE TO HIM, THE PADLOCKING OF THE DINING HALL IN ORDER TO
STARVE THE STUDENTS INTO SUBMISSION.  (FN2)  AS TO THE SIXTH PARAGRAPH,
HE CONTENDED THAT SINCE ARRESTS ARE ORDINARILY MADE BY THE POLICE, THE
STATEMENT "THEY HAVE ARRESTED DR. KING SEVEN TIMES" WOULD BE READ AS
REFERRING TO HIM; HE FURTHER CONTENDED THAT THE "THEY" WHO DID THE
ARRESTING WOULD BE EQUATED WITH THE "THEY" WHO COMMITTED THE OTHER
DESCRIBED ACTS AND WITH THE "SOUTHERN VIOLATORS."  THUS, HE ARGUED, THE
PARAGRAPH WOULD BE READ AS ACCUSING THE MONTGOMERY POLICE, AND HENCE
HIM, OF ANSWERING DR. KING'S PROTESTS WITH "INTIMIDATION AND VIOLENCE,"
BOMBING HIS HOME, ASSAULTING HIS PERSON, AND CHARGING HIM WITH
PERJURY.  PESPONDENT AND SIX OTHER MONTGOMERY RESIDENTS TESTIFIED THAT
THEY READ SOME OR ALL OF THE STATEMENTS AS REFERRING TO HIM IN HIS
CAPACITY AS COMMISSIONER. 

IT IS UNCONTROVERTED THAT SOME OF THE STATEMENTS CONTAINED IN THE TWO
PARAGRAPHS WERE NOT ACCURATE DESCRIPTIONS OF EVENTS WHICH OCCURRED IN
MONTGOMERY.  ALTHOUGH NEGRO STUDENTS STAGED A DEMONSTRATION ON THE
STATE CAPITOL STEPS, THEY SANG THE NATIONAL ANTHEM AND NOT "MY COUNTRY,
'TIS OF THEE."  ALTHOUGH NINE STUDENTS WERE EXPELLED BY THE STATE BOARD
OF EDUCATION, THIS WAS NOT FOR LEADING THE DEMONSTRATION AT THE
CAPITOL, BUT FOR DEMANDING SERVICE AT A LUNCH COUNTER IN THE MONTGOMERY
COUNTY COURTHOUSE ON ANOTHER DAY.  NOT THE ENTIRE STUDENT BODY, BUT
MOST OF IT, HAD PROTESTED THE EXPULSION, NOT BY REFUSING TO REGISTER,
BUT BY BOYCOTTING CLASSES ON A SINGLE DAY; VIRTUALLY ALL THE STUDENTS
DID REGISTER FOR THE ENSUING SEMESTER.  THE CAMPUS DINING HALL WAS NOT
PADLOCKED ON ANY OCCASION, AND THE ONLY STUDENTS WHO MAY HAVE BEEN
BARRED FROM EATING THERE WERE THE FEW WHO HAD NEITHER SIGNED A
PREREGISTRATION APPLICATION NOR REQUESTED TEMPORARY MEAL TICKETS. 
ALTHOUGH THE POLICE WERE DEPLOYED NEAR THE CAMPUS IN LARGE NUMBERS ON
THREE OCCASIONS, THEY DID NOT AT ANY TIME "RING" THE CAMPUS, AND THEY
WERE NOT CALLED TO THE CAMPUS IN CONNECTION WITH THE DEMONSTRATION ON
THE STATE CAPITOL STEPS, AS THE THIRD PARAGRAPH IMPLIED.  DR. KING HAD
NOT BEEN ARRESTED SEVEN TIMES, BUT ONLY FOUR; AND ALTHOUGH HE CLAIMED
TO HAVE BEEN ASSAULTED SOME YEARS EARLIER IN CONNECTION WITH HIS ARREST
FOR LOITERING OUTSIDE A COURTROOM, ONE OF THE OFFICERS WHO MADE THE
ARREST DENIED THAT THERE WAS SUCH AN ASSAULT. 

ON THE PREMISE THAT THE CHARGES IN THE SIXTH PARAGRAPH COULD BE READ
AS REFERRING TO HIM, RESPONDENT WAS ALLOWED TO PROVE THAT HE HAD NOT
PARTICIPATED IN THE EVENTS DESCRIBED.  ALTHOUGH DR. KING'S HOME HAD IN
FACT BEEN BOMBED TWICE WHEN HIS WIFE AND CHILD WERE THERE, BOTH OF
THESE OCCASIONS ANTEDATED RESPONDENT'S TENURE AS COMMISSIONER, AND THE
POLICE WERE NOT ONLY NOT IMPLICATED IN THE BOMBINGS, BUT HAD MADE EVERY
EFFORT TO APPREHEND THOSE WHO WERE.  THREE OF DR. KING'S FOUR ARRESTS
TOOK PLACE BEFORE RESPONDENT BECAME COMMISSIONER.  ALTHOUGH DR. KING
HAD IN FACT BEEN INDICTED (HE WAS SUBSEQUENTLY ACQUITTED) ON TWO COUNTS
OF PERJURY, EACH OF WHICH CARRIED A POSSIBLE FIVE-YEAR SENTENCE,
RESPONDENT HAD NOTHING TO DO WITH PROCURING THE INDICTMENT. 

RESPONDENT MADE NO EFFORT TO PROVE THAT HE SUFFERED ACTUAL PECUNIARY
LOSS AS A RESULT OF THE ALLEGED LIBEL.  (FN3)  ONE OF HIS WITNESSES, A
FORMER EMPLOYER, TESTIFIED THAT IF HE HAD BELIEVED THE STATEMENTS, HE
DOUBTED WHETHER HE "WOULD WANT TO BE ASSOCIATED WITH ANYBODY WHO WOULD
BE A PARTY TO SUCH THINGS THAT ARE STATED IN THAT AD," AND THAT HE
WOULD NOT RE-EMPLOY RESPONDENT IF HE BELIEVED "THAT HE ALLOWED THE
POLICE DEPARTMENT TO DO THE THINGS THAT THE PAPER SAY HE DID."  BUT
NEITHER THIS WITNESS NOR ANY OF THE OTHERS TESTIFIED THAT HE HAD
ACTUALLY BELIEVED THE STATEMENTS IN THEIR SUPPOSED REFERENCE TO
RESPONDENT. 

THE COST OF THE ADVERTISEMENT WAS APPROXIMATELY $4800, AND IT WAS
PUBLISHED BY THE TIMES UPON AN ORDER FROM A NEW YORK ADVERTISING AGENCY
ACTING FOR THE SIGNATORY COMMITTEE.  THE AGENCY SUBMITTED THE
ADVERTISEMENT WITH A LETTER FROM A. PHILIP RANDOLPH, CHAIRMAN OF THE
COMMITTEE, CERTIFYING THAT THE PERSONS WHOSE NAMES APPEARED ON THE
ADVERTISEMENT HAD GIVEN THEIR PERMISSION.  MR. RANDOLPH WAS KNOWN TO
THE TIMES' ADVERTISING ACCEPTABILITY DEPARTMENT AS A RESPONSIBLE
PERSON, AND IN ACCEPTING THE LETTER AS SUFFICIENT PROOF OF
AUTHORIZATION IT FOLLOWED ITS ESTABLISHED PRACTICE.  THERE WAS
TESTIMONY THAT THE COPY OF THE ADVERTISEMENT WHICH ACCOMPANIED THE
LETTER LISTED ONLY THE 64 NAMES APPEARING UNDER THE TEXT, AND THAT THE
STATEMENT, "WE IN THE SOUTH  ...  WARMLY ENDORSE THIS APPEAL," AND THE
LIST OF NAMES THEREUNDER, WHICH INCLUDED THOSE OF THE INDIVIDUAL
PETITIONERS, WERE SUBSEQUENTLY ADDED WHEN THE FIRST PROOF OF THE
ADVERTISEMENT WAS RECEIVED.  EACH OF THE INDIVIDUAL PETITIONERS
TESTIFIED THAT HE HAD NOT AUTHORIZED THE USE OF HIS NAME, AND THAT HE
HAD BEEN UNAWARE OF ITS USE UNTIL RECEIPT OF RESPONDENT'S DEMAND FOR A
RETRACTION.  THE MANAGER OF THE ADVERTISING ACCEPTABILITY DEPARTMENT
TESTIFIED THAT HE HAD APPROVED THE ADVERTISEMENT FOR PUBLICATION
BECAUSE HE KNEW NOTHING TO CAUSE HIM TO BELIEVE THAT ANYTHING IN IT WAS
FALSE, AND BECAUSE IT BORE THE ENDORSEMENT OF "A NUMBER OF PEOPLE WHO
ARE WELL KNOWN AND WHOSE REPUTATION" HE "HAD NO REASON TO QUESTION." 
NEITHER HE NOR ANYONE ELSE AT THE TIMES MADE AN EFFORT TO CONFIRM THE
ACCURACY OF THE ADVERTISEMENT, EITHER BY CHECKING IT AGAINST RECENT
TIMES NEWS STORIES RELATING TO SOME OF THE DESCRIBED EVENTS OR BY ANY
OTHER MEANS. 

ALABAMA LAW DENIES A PUBLIC OFFICER RECOVERY OF PUNITIVE DAMAGES IN A
LIBEL ACTION BROUGHT ON ACCOUNT OF A PUBLICATION CONCERNING HIS
OFFICIAL CONDUCT UNLESS HE FIRST MAKES A WRITTEN DEMAND FOR A PUBLIC
RETRACTION AND THE DEFENDANT FAILS OR REFUSES TO COMPLY.  ALABAMA CODE,
TIT. 7, SEC 914.  RESPONDENT SERVED SUCH A DEMAND UPON EACH OF THE
PETITIONERS.  NONE OF THE INDIVIDUAL PETITIONERS RESPONDED TO THE
DEMAND, PRIMARILY BECAUSE EACH TOOK THE POSITION THAT HE HAD NOT
AUTHORIZED THE USE OF HIS NAME ON THE ADVERTISEMENT AND THEREFORE HAD
NOT PUBLISHED THE STATEMENTS THAT RESPONDENT ALLEGED HAD LIBELED HIM. 
THE TIMES DID NOT PUBLISH A RETRACTION IN RESPONSE TO THE DEMAND, BUT
WROTE RESPONDENT A LETTER STATING, AMONG OTHER THINGS, THAT "WE  ...
ARE SOMEWHAT PUZZLED AS TO HOW YOU THINK THE STATEMENTS IN ANY WAY
REFLECT ON YOU," AND "YOU MIGHT, IF YOU DESIRE, LET US KNOW IN WHAT
RESPECT YOU CLAIM THAT THE STATEMENTS IN THE ADVERTISEMENT REFLECT ON
YOU."  RESPONDENT FILED THIS SUIT A FEW DAYS LATER WITHOUT ANSWERING
THE LETTER.  THE TIMES DID, HOWEVER, SUBSEQUENTLY PUBLISH A RETRACTION
OF THE ADVERTISEMENT UPON THE DEMAND OF GOVERNOR JOHN PATTERSON OF
ALABAMA, WHO ASSERTED THAT THE PUBLICATION CHARGED HIM WITH "GRAVE
MISCONDUCT AND  ...  IMPROPER ACTIONS AND OMISSIONS AS GOVERNOR OF
ALABAMA AND EX-OFFICIO CHAIRMAN OF THE STATE BOARD OF EDUCATION OF
ALABAMA."  WHEN ASKED TO EXPLAIN WHY THERE HAD BEEN A RETRACTION FOR
THE GOVERNOR BUT NOT FOR RESPONDENT, THE SECRETARY OF THE TIMES
TESTIFIED:  "WE DID THAT BECAUSE WE DIDN'T WANT ANYTHING THAT WAS
PUBLISHED BY THE TIMES TO BE A REFLECTION ON THE STATE OF ALABAMA AND
THE GOVERNOR WAS, AS FAR AS WE COULD SEE, THE EMBODIMENT OF THE STATE
OF ALABAMA AND THE PROPER REPRESENTATIVE OF THE STATE AND, FURTHERMORE,
WE HAD BY THAT TIME LEARNED MORE OF THE ACTUAL FACTS WHICH THE AD
PURPORTED TO RECITE AND, FINALLY, THE AD DID REFER TO THE ACTION OF THE
STATE AUTHORITIES AND THE BOARD OF EDUCATION PRESUMABLY OF WHICH THE
GOVERNOR IS THE EX-OFFICIO CHAIRMAN  ...  ."  ON THE OTHER HAND, HE
TESTIFIED THAT HE DID NOT THINK THAT "ANY OF THE LANGUAGE IN THERE
REFERRED TO MR. SULLIVAN." 

THE TRIAL JUDGE SUBMITTED THE CASE TO THE JURY UNDER INSTRUCTIONS
THAT THE STATEMENTS IN THE ADVERTISEMENT WERE "LIBELOUS PER SE" AND
WERE NOT PRIVILEGED, SO THAT PETITIONERS MIGHT BE HELD LIABLE IF THE
JURY FOUND THAT THEY HAD PUBLISHED THE ADVERTISEMENT AND THAT THE
STATEMENTS WERE MADE "OF AND CONCERNING" RESPONDENT.  THE JURY WAS
INSTRUCTED THAT, BECAUSE THE STATEMENTS WERE LIBELOUS PER SE, "THE LAW
...  IMPLIES LEGAL INJURY FROM THE BARE FACT OF PUBLICATION ITSELF,"
"FALSITY AND MALICE ARE PRESUMED," "GENERAL DAMAGES NEED NOT BE ALLEGED
OR PROVED BUT ARE PRESUMED," AND "PUNITIVE DAMAGES MAY BE AWARDED BY
THE JURY EVEN THOUGH THE AMOUNT OF ACTUAL DAMAGES IS NEITHER FOUND NOR
SHOWN."  AN AWARD OF PUNITIVE DAMAGES - AS DISTINGUISHED FROM "GENERAL"
DAMAGES, WHICH ARE COMPENSATORY IN NATURE - APPARENTLY REQUIRES PROOF
OF ACTUAL MALICE UNDER ALABAMA LAW, AND THE JUDGE CHARGED THAT "MERE
NEGLIGENCE OR CARELESSNESS IS NOT EVIDENCE OF ACTUAL MALICE OR MALICE
IN FACT, AND DOES NOT JUSTIFY AN AWARD OF EXEMPLARY OR PUNITIVE
DAMAGES."  HE REFUSED TO CHARGE, HOWEVER, THAT THE JURY MUST BE
"CONVINCED" OF MALICE, IN THE SENSE OF "ACTUAL INTENT" TO HARM OR
"GROSS NEGLIGENCE AND RECKLESSNESS," TO MAKE SUCH AN AWARD, AND HE ALSO
REFUSED TO REQUIRE THAT A VERDICT FOR RESPONDENT DIFFERENTIATE BETWEEN
COMPENSATORY AND PUNITIVE DAMAGES.  THE JUDGE REJECTED PETITIONERS'
CONTENTION THAT HIS RULINGS ABRIDGED THE FREEDOMS OF SPEECH AND OF THE
PRESS THAT ARE GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.    IN
AFFIRMING THE JUDGMENT, THE SUPREME COURT OF ALABAMA SUSTAINED THE
TRIAL JUDGE'S RULINGS AND INSTRUCTIONS IN ALL RESPECTS.  273 ALA. 656,
144 SO. 2D 25.  IT HELD THAT "WHERE THE WORDS PUBLISHED TEND TO INJURE
A PERSON LIBELED BY THEM IN HIS REPUTATION, PROFESSION, TRADE OR
BUSINESS, OR CHARGE HIM WITH AN INDICTABLE OFFENSE, OR TEND TO BRING
THE INDIVIDUAL INTO PUBLIC CONTEMPT," THEY ARE "LIBELOUS PER SE"; THAT
"THE MATTER COMPLAINED OF IS, UNDER THE ABOVE DOCTRINE, LIBELOUS PER
SE, IF IT WAS PUBLISHED OF AND CONCERNING THE PLAINTIFF"; AND THAT IT
WAS ACTIONABLE WITHOUT "PROOF OF PECUNIARY INJURY  ...  , SUCH INJURY
BEING IMPLIED."  ID., AT 673, 676, 144 SO. 2D, AT 37, 41.  IT APPROVED
THE TRIAL COURT'S RULING THAT THE JURY COULD FIND THE STATEMENTS TO
HAVE BEEN MADE "OF AND CONCERNING" RESPONDENT, STATING:  "WE THINK IT
COMMON KNOWLEDGE THAT THE AVERAGE PERSON KNOWS THAT MUNICIPAL AGENTS,
SUCH AS POLICE AND FIREMEN, AND OTHERS, ARE UNDER THE CONTROL AND
DIRECTION OF THE CITY GOVERNING BODY, AND MORE PARTICULARLY UNDER THE
DIRECTION AND CONTROL OF A SINGLE COMMISSIONER.   IN MEASURING THE
PERFORMANCE OR DEFICIENCIES OF SUCH GROUPS, PRAISE OR CRITICISM IS
USUALLY ATTACHED TO THE OFFICIAL IN COMPLETE CONTROL OF THE BODY." 
ID., AT 674-675, 144 SO. 2D, AT 39.  IN SUSTAINING THE TRIAL COURT'S
DETERMINATION THAT THE VERDICT WAS NOT EXCESSIVE, THE COURT SAID THAT
MALICE COULD BE INFERRED FROM THE TIMES'"IRRESPONSIBILITY" IN PRINTING
THE ADVERTISEMENT WHILE "THE TIMES IN ITS OWN FILES HAD ARTICLES
ALREADY PUBLISHED WHICH WOULD HAVE DEMONSTRATED THE FALSITY OF THE
ALLEGATIONS IN THE ADVERTISEMENT"; FROM THE TIMES' FAILURE TO RETRACT
FOR RESPONDENT WHILE RETRACTING FOR THE GOVERNOR, WHEREAS THE FALSITY
OF SOME OF THE ALLEGATIONS WAS THEN KNOWN TO THE TIMES AND "THE MATTER
CONTAINED IN THE ADVERTISEMENT WAS EQUALLY FALSE AS TO BOTH PARTIES";
AND FROM THE TESTIMONY OF THE TIMES' SECRETARY THAT, APART FROM THE
STATEMENT THAT THE DINING HALL WAS PADLOCKED, HE THOUGHT THE TWO
PARAGRAPHS WERE "SUBSTANTIALLY CORRECT."  ID., AT 686-687, 144 SO. 2D,
AT 50-51.  THE COURT REAFFIRMED A STATEMENT IN AN EARLIER OPINION THAT
"THERE IS NO LEGAL MEASURE OF DAMAGES IN CASES OF THIS CHARACTER." 
ID., AT 686, 144 SO. 2D, AT 50.  IT REJECTED PETITIONERS'
CONSTITUTIONAL CONTENTIONS WITH THE BRIEF STATEMENTS THAT "THE FIRST
AMENDMENT OF THE U.S. CONSTITUTION DOES NOT PROTECT LIBELOUS
PUBLICATIONS" AND "THE FOURTEENTH AMENDMENT IS DIRECTED AGAINST STATE
ACTION AND NOT PRIVATE ACTION."  ID., AT 676, 144 SO. 2D, AT 40. 

BECAUSE OF THE IMPORTANCE OF THE CONSTITUTIONAL ISSUES INVOLVED, WE
GRANTED THE SEPARATE PETITIONS FOR CERTIORARI OF THE INDIVIDUAL
PETITIONERS AND OF THE TIMES.  371 U.S. 946.  WE REVERSE THE JUDGMENT. 
WE HOLD THAT THE RULE OF LAW APPLIED BY THE ALABAMA COURTS IS
CONSTITUTIONALLY DEFICIENT FOR FAILURE TO PROVIDE THE SAFEGUARDS FOR
FREEDOM OF SPEECH AND OF THE PRESS THAT ARE REQUIRED BY THE FIRST AND
FOURTEENTH AMENDMENTS IN A LIBEL ACTION BROUGHT BY A PUBLIC OFFICIAL
AGAINST CRITICS OF HIS OFFICIAL CONDUCT.  (FN4)  WE FURTHER HOLD THAT
UNDER THE PROPER SAFEGUARDS THE EVIDENCE PRESENTED IN THIS CASE IS
CONSTITUTIONALLY INSUFFICIENT TO SUPPORT THE JUDGMENT FOR RESPONDENT. 

                                  I. 

WE MAY DISPOSE AT THE OUTSET OF TWO GROUNDS ASSERTED TO INSULATE THE
JUDGMENT OF THE ALABAMA COURTS FROM CONSTITUTIONAL SCRUTINY.  THE FIRST
IS THE PROPOSITION RELIED ON BY THE STATE SUPREME COURT - THAT "THE
FOURTEENTH AMENDMENT IS DIRECTED AGAINST STATE ACTION AND NOT PRIVATE
ACTION."  THAT PROPOSITION HAS NO APPLICATION TO THIS CASE.  ALTHOUGH
THIS IS A CIVIL LAWSUIT BETWEEN PRIVATE PARTIES, THE ALABAMA COURTS
HAVE APPLIED A STATE RULE OF LAW WHICH PETITIONERS CLAIM TO IMPOSE
INVALID RESTRICTIONS ON THEIR CONSTITUTIONAL FREEDOMS OF SPEECH AND
PRESS.  IT MATTERS NOT THAT THAT LAW HAS BEEN APPLIED IN A CIVIL ACTION
AND THAT IT IS COMMON LAW ONLY, THOUGH SUPPLEMENTED BY STATUTE.  SEE,
E.G., ALABAMA CODE, TIT. 7, SECS 908-917.  THE TEST IS NOT THE FORM IN
WHICH STATE POWER HAS BEEN APPLIED BUT, WHATEVER THE FORM, WHETHER SUCH
POWER HAS IN FACT BEEN EXERCISED.  SEE EX PARTE VIRGINIA, 100 U.S. 339,
346-347; AMERICAN FEDERATION OF LABOR V. SWING, 312 U.S. 321. 

THE SECOND CONTENTION IS THAT THE CONSTITUTIONAL GUARANTEES OF
FREEDOM OF SPEECH AND OF THE PRESS ARE INAPPLICABLE HERE, AT LEAST SO
FAR AS THE TIMES IS CONCERNED, BECAUSE THE ALLEGEDLY LIBELOUS
STATEMENTS WERE PUBLISHED AS PART OF A PAID, "COMMERCIAL"
ADVERTISEMENT.  THE ARGUMENT RELIES ON VALENTINE V. CHRESTENSEN, 316
U.S. 52, WHERE THE COURT HELD THAT A CITY ORDINANCE FORBIDDING STREET
DISTRIBUTION OF COMMERCIAL AND BUSINESS ADVERTISING MATTER DID NOT
ABRIDGE THE FIRST AMENDMENT FREEDOMS, EVEN AS APPLIED TO A HANDBILL
HAVING A COMMERCIAL MESSAGE ON ONE SIDE BUT A PROTEST AGAINST CERTAIN
OFFICIAL ACTION ON THE OTHER.  THE RELIANCE IS WHOLLY MISPLACED.  THE
COURT IN CHRESTENSEN REAFFIRMED THE CONSTITUTIONAL PROTECTION FOR "THE
FREEDOM OF COMMUNICATING INFORMATION AND DISSEMINATING OPINION"; ITS
HOLDING WAS BASED UPON THE FACTUAL CONCLUSIONS THAT THE HANDBILL WAS
"PURELY COMMERCIAL ADVERTISING" AND THAT THE PROTEST AGAINST OFFICIAL
ACTION HAD BEEN ADDED ONLY TO EVADE THE ORDINANCE. 

THE PUBLICATION HERE WAS NOT A "COMMERCIAL" ADVERTISEMENT IN THE
SENSE IN WHICH THE WORD WAS USED IN CHRESTENSEN.  IT COMMUNICATED
INFORMATION, EXPRESSED OPINION, RECITED GRIEVANCES, PROTESTED CLAIMED
ABUSES, AND SOUGHT FINANCIAL SUPPORT ON BEHALF OF A MOVEMENT WHOSE
EXISTENCE AND OBJECTIVES ARE MATTERS OF THE HIGHEST PUBLIC INTEREST AND
CONCERN.  SEE N.A.A.C.P. V. BUTTON, 371 U.S. 415, 435.  THAT THE TIMES
WAS PAID FOR PUBLISHING THE ADVERTISEMENT IS AS IMMATERIAL IN THIS
CONNECTION AS IS THE FACT THAT NEWSPAPERS AND BOOKS ARE SOLD.  SMITH V.
CALIFORNIA, 361 U.S. 147, 150; CF. BANTAM BOOKS, INC., V. SULLIVAN, 372
U.S. 58, 64, N. 6.  ANY OTHER CONCLUSION WOULD DISCOURAGE NEWSPAPERS
FROM CARRYING "EDITORIAL ADVERTISEMENTS" OF THIS TYPE, AND SO MIGHT
SHUT OFF AN IMPORTANT OUTLET FOR THE PROMULGATION OF INFORMATION AND
IDEAS BY PERSONS WHO DO NOT THEMSELVES HAVE ACCESS TO PUBLISHING
FACILITIES - WHO WISH TO EXERCISE THEIR FREEDOM OF SPEECH EVEN THOUGH
THEY ARE NOT MEMBERS OF THE PRESS.  CF. LOVELL V. GRIFFIN, 303 U.S.
444, 452; SCHNEIDER V. STATE, 308 U.S. 147, 164.  THE EFFECT WOULD BE
TO SHACKLE THE FIRST AMENDMENT IN ITS ATTEMPT TO SECURE "THE WIDEST
POSSIBLE DISSEMINATION OF INFORMATION FROM DIVERSE AND ANTAGONISTIC
SOURCES."  ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 20.  TO AVOID
PLACING SUCH A HANDICAP UPON THE FREEDOMS OF EXPRESSION, WE HOLD THAT
IF THE ALLEGEDLY LIBELOUS STATEMENTS WOULD OTHERWISE BE
CONSTITUTIONALLY PROTECTED FROM THE PRESENT JUDGMENT, THEY DO NOT
FORFEIT THAT PROTECTION BECAUSE THEY WERE PUBLISHED IN THE FORM OF A
PAID ADVERTISEMENT.  (FN5)

        II. 

UNDER ALABAMA LAW AS APPLIED IN THIS CASE, A PUBLICATION IS "LIBELOUS
PER SE" IF THE WORDS "TEND TO INJURE A PERSON  ...  IN HIS REPUTATION"
OR TO "BRING HIM INTO PUBLIC CONTEMPT"; THE TRIAL COURT STATED THAT THE
STANDARD WAS MET IF THE WORDS ARE SUCH AS TO "INJURE HIM IN HIS PUBLIC
OFFICE, OR IMPUTE MISCONDUCT TO HIM IN HIS OFFICE, OR WANT OF OFFICIAL
INTEGRITY, OR WANT OF FIDELITY TO A PUBLIC TRUST  ...  ."  THE JURY
MUST FIND THAT THE WORDS WERE PUBLISHED "OF AND CONCERNING" THE
PLAINTIFF, BUT WHERE THE PLAINTIFF IS A PUBLIC OFFICIAL HIS PLACE IN
THE GOVERNMENTAL HIERARCHY IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING
THAT HIS REPUTATION HAS BEEN AFFECTED BY STATEMENTS THAT REFLECT UPON
THE AGENCY OF WHICH HE IS IN CHARGE.  ONCE "LIBEL PER SE" HAS BEEN
ESTABLISHED, THE DEFENDANT HAS NO DEFENSE AS TO STATED FACTS UNLESS HE
CAN PERSUADE THE JURY THAT THEY WERE TRUE IN ALL THEIR PARTICULARS. 
ALABAMA RIDE CO. V. VANCE, 235 ALA. 263, 178 SO. 438 (1938); JOHNSON
PUBLISHING CO. V. DAVIS, 271 ALA. 474, 494-495, 124 SO. 2D 441, 457-458
(1960).  HIS PRIVILEGE OF "FAIR COMMENT" FOR EXPRESSIONS OF OPINION
DEPENDS ON THE TRUTH OF THE FACTS UPON WHICH THE COMMENT IS BASED. 
PARSONS V. AGE-HERALD PUBLISHING CO., 181 ALA. 439, 450, 61 SO. 345,
350 (1913).  UNLESS HE CAN DISCHARGE THE BURDEN OF PROVING TRUTH,
GENERAL DAMAGES ARE PRESUMED, AND MAY BE AWARDED WITHOUT PROOF OF
PECUNIARY INJURY.  A SHOWING OF ACTUAL MALICE IS APPARENTLY A
PREREQUISITE TO RECOVERY OF PUNITIVE DAMAGES, AND THE DEFENDANT MAY IN
ANY EVENT FORESTALL A PUNITIVE AWARD BY A RETRACTION MEETING THE
STATUTORY REQUIREMENTS.  GOOD MOTIVES AND BELIEF IN TRUTH DO NOT NEGATE
AN INFERENCE OF MALICE, BUT ARE RELEVANT ONLY IN MITIGATION OF PUNITIVE
DAMAGES IF THE JURY CHOOSES TO ACCORD THEM WEIGHT.  JOHNSON PUBLISHING
CO. V. DAVIS, SUPRA, 271 ALA., AT 495, 124 SO. 2D, AT 458. 

THE QUESTION BEFORE US IS WHETHER THIS RULE OF LIABILITY, AS APPLIED
TO AN ACTION BROUGHT BY A PUBLIC OFFICIAL AGAINST CRITICS OF HIS
OFFICIAL CONDUCT, ABRIDGES THE FREEDOM OF SPEECH AND OF THE PRESS THAT
IS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS. 

RESPONDENT RELIES HEAVILY, AS DID THE ALABAMA COURTS, ON STATEMENTS
OF THIS COURT TO THE EFFECT THAT THE CONSTITUTION DOES NOT PROTECT
LIBELOUS PUBLICATIONS.  (FN6)  THOSE STATEMENTS DO NOT FORECLOSE OUR
INQUIRY HERE.  NONE OF THE CASES SUSTAINED THE USE OF LIBEL LAWS TO
IMPOSE SANCTIONS UPON EXPRESSION CRITICAL OF THE OFFICIAL CONDUCT OF
PUBLIC OFFICIALS.  THE DICTUM IN PENNEKAMP V. FLORIDA, 328 U.S. 331,
348-349, THAT "WHEN THE STATEMENTS AMOUNT TO DEFAMATION, A JUDGE HAS
SUCH REMEDY IN DAMAGES FOR LIBEL AS DO OTHER PUBLIC SERVANTS," IMPLIED
NO VIEW AS TO WHAT REMEDY MIGHT CONSTITUTIONALLY BE AFFORDED TO PUBLIC
OFFICIALS.  IN BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, THE COURT
SUSTAINED AN ILLINOIS CRIMINAL LIBEL STATUTE AS APPLIED TO A
PUBLICATION HELD TO BE BOTH DEFAMATORY OF A RACIAL GROUP AND "LIABLE TO
CAUSE VIOLENCE AND DISORDER."  BUT THE COURT WAS CAREFUL TO NOTE THAT
IT "RETAINS AND EXERCISES AUTHORITY TO NULLIFY ACTION WHICH ENCROACHES
ON FREEDOM OF UTTERANCE UNDER THE GUISE OF PUNISHING LIBEL"; FOR
"PUBLIC MEN, ARE, AS IT WERE, PUBLIC PROPERTY," AND "DISCUSSION CANNOT
BE DENIED AND THE RIGHT, AS WELL AS THE DUTY, OF CRITICISM MUST NOT BE
STIFLED."  ID., AT 263-264, AND N. 18.  IN THE ONLY PREVIOUS CASE THAT
DID PRESENT THE QUESTION OF CONSTITUTIONAL LIMITATIONS UPON THE POWER
TO AWARD DAMAGES FOR LIBEL OF A PUBLIC OFFICIAL, THE COURT WAS EQUALLY
DIVIDED AND THE QUESTION WAS NOT DECIDED.  SCHENECTADY UNION PUB. CO.
V. SWEENEY, 316 U.S. 642.  IN DECIDING THE QUESTION NOW, WE ARE
COMPELLED BY NEITHER PRECEDENT NOR POLICY TO GIVE ANY MORE WEIGHT TO
THE EPITHET "LIBEL" THAN WE HAVE TO OTHER "MERE LABELS" OF STATE LAW. 
N.A.A.C.P. V.  BUTTON, 371 U.S. 415, 429.  LIKE INSURRECTION, (FN7)
CONTEMPT, (FN8) ADVOCACY OF UNLAWFUL ACTS, (FN9) BREACH OF THE PEACE,
(FN10) OBSCENITY, (FN11) SOLICITATION OF LEGAL BUSINESS, (FN12) AND THE
VARIOUS OTHER FORMULAE FOR THE REPRESSION OF EXPRESSION THAT HAVE BEEN
CHALLENGED IN THIS COURT, LIBEL CAN CLAIM NO TALISMANIC IMMUNITY FROM
CONSTITUTIONAL LIMITATIONS.  IT MUST BE MEASURED BY STANDARDS THAT
SATISFY THE FIRST AMENDMENT. 

THE GENERAL PROPOSITION THAT FREEDOM OF EXPRESSION UPON PUBLIC
QUESTIONS IS SECURED BY THE FIRST AMENDMENT HAS LONG BEEN SETTLED BY
OUR DECISIONS.  THE CONSTITUTIONAL SAFEGUARD, WE HAVE SAID, "WAS
FASHIONED TO ASSURE UNFETTERD INTERCHANGE OF IDEAS FOR THE BRINGING
ABOUT OF POLITICAL AND SOCIAL CHANGES DESIRED BY THE PEOPLE."  ROTH V.
UNITED STATES, 354 U.S. 476, 484.  "THE MAINTENANCE OF THE OPPORTUNITY
FOR FREE POLITICAL DISCUSSION TO THE END THAT GOVERNMENT MAY BE
RESPONSIVE TO THE WILL OF THE PEOPLE AND THAT CHANGES MAY BE OBTAINED
BY LAWFUL MEANS, AN OPPORTUNITY ESSENTIAL TO THE SECURITY OF THE
REPUBLIC, IS A FUNDAMENTAL PRINCIPLE OF OUR CONSTITUTIONAL SYSTEM." 
STROMBERG V. CALIFORNIA, 283 U.S. 359, 369.  "IT IS A PRIZED AMERICAN
PRIVILEGE TO SPEAK ONE'S MIND, ALTHOUGH NOT ALWAYS WITH PERFECT GOOD
TASTE, ON ALL PUBLIC INSTITUTIONS,"  BRIDGES V. CALIFORNIA, 314 U.S.
252, 270, AND THIS OPPORTUNITY IS TO BE AFFORDED FOR "VIGOROUS
ADVOCACY" NO LESS THAN "ABSTRACT DISCUSSION."  N.A.A.C.P. V. BUTTON,
371 U.S. 415, 429.  THE FIRST AMENDMENT, SAID JUDGE LEARNED HAND,
"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."  UNITED STATES V. ASSOCIATED PRESS, 52 F.
SUPP. 362, 372 (D.C.S.D.N.Y. 1943).  MR. JUSTICE BRANDEIS, IN HIS
CONCURRING OPINION IN WHITNEY V. CALIFORNIA, 274 U.S. 357, 375-376,
GAVE THE PRINCIPLE ITS CLASSIC FORMULATION: 

"THOSE WHO WON OUR INDEPENDENCE BELIEVED  ...  THAT PUBLIC DISCUSSION
IS A POLITICAL DUTY; AND THAT THIS SHOULD BE A FUNDAMENTAL PRINCIPLE OF
THE AMERICAN GOVERNMENT.  THEY RECOGNIZED THE RISKS TO WHICH ALL HUMAN
INSTITUTIONS ARE SUBJECT.  BUT THEY KNEW THAT ORDER CANNOT BE SECURED
MERELY THROUGH FEAR OF PUNISHMENT FOR ITS INFRACTION; THAT IT IS
HAZARDOUS TO DISCOURAGE THOUGHT, HOPE AND IMAGINATION; THAT FEAR BREEDS
REPRESSION; THAT REPRESSION BREEDS HATE; THAT HATE MENACES STABLE
GOVERNMENT; THAT THE PATH OF SAFETY LIES IN THE OPPORTUNITY TO DISCUSS
FREELY SUPPOSED GRIEVANCES AND PROPOSED REMEDIES; AND THAT THE FITTING
REMEDY FOR EVIL COUNSELS IS GOOD ONES.  BELIEVING IN THE POWER OF
REASON AS APPLIED THROUGH PUBLIC DISCUSSION, THEY ESCHEWED SILENCE
COERCED BY LAW - THE ARGUMENT OF FORCE IN ITS WORST FORM.  RECOGNIZING
THE OCCASIONAL TYRANNIES OF GOVERNING MAJORITIES, THEY AMENDED THE
CONSTITUTION SO THAT FREE SPEECH AND ASSEMBLY SHOULD BE GUARANTEED." 
THUS WE CONSIDER THIS CASE AGAINST THE BACKGROUND OF A PROFOUND
NATIONAL COMMITMENT TO THE PRINCIPLE THAT DEBATE ON PUBLIC ISSUES
SHOULD BE UNINHIBITED, ROBUST, AND WIDE-OPEN, AND THAT IT MAY WELL
INCLUDE VEHEMENT, CAUSTIC, AND SOMETIMES UNPLEASANTLY SHARP ATTACKS ON
GOVERNMENT AND PUBLIC OFFICIALS.  SEE TERMINIELLO V. CHICAGO, 337 U.S.
1, 4; DEJONGE V. OREGON, 299 U.S. 353, 365.  THE PRESENT ADVERTISEMENT,
AS AN EXPRESSION OF GRIEVANCE AND PROTEST ON ONE OF THE MAJOR PUBLIC
ISSUES OF OUR TIME, WOULD SEEM CLEARLY TO QUALIFY FOR THE
CONSTITUTIONAL PROTECTION.  THE QUESTION IS WHETHER IT FORFEITS THAT
PROTECTION BY THE FALSITY OF SOME OF ITS FACTUAL STATEMENTS AND BY ITS
ALLEGED DEFAMATION OF RESPONDENT. 

AUTHORITATIVE INTERPRETATIONS OF THE FIRST AMENDMENT GUARANTEES HAVE
CONSISTENTLY REFUSED TO RECOGNIZE AN EXCEPTION FOR ANY TEST OF TRUTH -
WHETHER ADMINISTERED BY JUDGES, JURIES, OR ADMINISTRATIVE OFFICIALS -
AND ESPECIALLY ONE THAT PUTS THE BURDEN OF PROVING TRUTH ON THE
SPEAKER.  CF. SPEISER V. RANDALL, 357 U.S. 513, 525-526.  THE
CONSTITUTIONAL PROTECTION DOES NOT TURN UPON "THE TRUTH, POPULARITY, OR
SOCIAL UTILITY OF THE IDEAS AND BELIEFS WHICH ARE OFFERED."  N.A.A.C.P.
V. BUTTON, 371 U.S. 415, 445.  AS MADISON SAID, "SOME DEGREE OF ABUSE
IS INSEPARABLE FROM THE PROPER USE OF EVERY THING; AND IN NO INSTANCE
IS THIS MORE TRUE THAN IN THAT OF THE PRESS."  4 ELLIOT'S DEBATES ON
THE FEDERAL CONSTITUTION (1876), P. 571.  IN CANTWELL V. CONNECTICUT,
310 U.S. 296, 310, THE COURT DECLARED: 

"IN THE REALM OF RELIGIOUS FAITH, AND IN THAT OF POLITICAL BELIEF,
SHARP DIFFERENCES ARISE.  IN BOTH FIELDS THE TENETS OF ONE MAN MAY SEEM
THE RANKEST ERROR TO HIS NEIGHBOR.  TO PERSUADE OTHERS TO HIS OWN POINT
OF VIEW, THE PLEADER, AS WE KNOW, AT TIMES, RESORTS TO EXAGGERATION, TO
VILIFICATION OF MEN WHO HAVE BEEN, OR ARE, PROMINENT IN CHURCH OR
STATE, AND EVEN TO FALSE STATEMENT.  BUT THE PEOPLE OF THIS NATION HAVE
ORDAINED IN THE LIGHT OF HISTORY, THAT, IN SPITE OF THE PROBABILITY OF
EXCESSES AND ABUSES, THESE LIBERTIES ARE, IN THE LONG VIEW, ESSENTIAL
TO ENLIGHTENED OPINION AND RIGHT CONDUCT ON THE PART OF THE CITIZENS OF
A DEMOCRACY." 

THAT ERRONEOUS STATEMENT IS INEVITABLE IN FREE DEBATE, AND THAT IT
MUST BE PROTECTED IF THE FREEDOMS OF EXPRESSION ARE TO HAVE THE
"BREATHING SPACE" THAT THEY "NEED  ...  TO SURVIVE," N.A.A.C.P. V.
BUTTON, 371 U.S. 415, 433, WAS ALSO RECOGNIZED BY THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT IN SWEENEY V. PATTERSON, 76 U.S.
APP. D.C. 23, 24, 128 F.2D 457, 458 (1942), CERT. DENIED, 317 U.S.
678.  JUDGE EDGERTON SPOKE FOR A UNANIMOUS COURT WHICH AFFIRMED THE
DISMISSAL OF A CONGRESSMAN'S LIBEL SUIT BASED UPON A NEWSPAPER ARTICLE
CHARGING HIM WITH ANTI-SEMITISM IN OPPOSING A JUDICIAL APPOINTMENT.  HE
SAID: 

"CASES WHICH IMPOSE LIABILITY FOR ERRONEOUS REPORTS OF THE POLITICAL
CONDUCT OF OFFICIALS REFLECT THE OBSOLETE DOCTRINE THAT THE GOVERNED
MUST NOT CRITICIZE THEIR GOVERNORS  ...  .  THE INTEREST OF THE PUBLIC
HERE OUTWEIGHS THE INTEREST OF APPELLANT OR ANY OTHER INDIVIDUAL.  THE
PROTECTION OF THE PUBLIC REQUIRES NOT MERELY DISCUSSION, BUT
INFORMATION.  POLITICAL CONDUCT AND VIEWS WHICH SOME RESPECTABLE PEOPLE
APPROVE, AND OTHERS CONDEMN, ARE CONSTANTLY IMPUTED TO CONGRESSMEN. 
ERRORS OF FACT, PARTICULARLY IN REGARD TO A MAN'S MENTAL STATES AND
PROCESSES, ARE INEVITABLE  ...  . WHATEVER IS ADDED TO THE FIELD OF
LIBEL IS TAKEN FROM THE FIELD OF FREE DEBATE."  (FN13) 

INJURY TO OFFICAL REPUTATION AFFORDS NO MORE WARRANT FOR REPRESSING
SPEECH THAT WOULD OTHERWISE BE FREE THAN DOES FACTUAL ERROR.  WHERE
JUDICIAL OFFICERS ARE INVOLVED, THIS COURT HAS HELD THAT CONCERN FOR
THE DIGNITY AND REPUTATION OF THE COURTS DOES NOT JUSTIFY THE
PUNISHMENT AS CRIMINAL CONTEMPT OF CRITICISM OF THE JUDGE OR HIS
DECISION.  BRIDGES V. CALIFORNIA, 314 U.S. 252.  THIS IS TRUE EVEN
THOUGH THE UTTERANCE CONTAINS "HALF-TRUTHS" AND "MISINFORMATION." 
PENNEKAMP V. FLORIDA, 328 U.S. 331, 342, 343, N. 5, 345.  SUCH
REPRESSION CAN BE JUSTIFIED, IF AT ALL, ONLY BY A CLEAR AND PRESENT
DANGER OF THE OBSTRUCTION OF JUSTICE.  SEE ALSO CRAIG V. HARNEY, 331
U.S. 367; WOOD V. GEORGIA, 370 U.S. 375.  IF JUDGES ARE TO BE TREATED
AS "MEN OF FORTITUDE, ABLE TO THRIVE IN A HARDY CLIMATE," CRAIG V.
HARNEY, SUPRA, 331 U.S., AT 376, SURELY THE SAME MUST BE TRUE OF OTHER
GOVERNMENT OFFICIALS, SUCH AS ELECTED CITY COMMISSIONERS.  (FN14)
CRITICISM OF THEIR OFFICIAL CONDUCT DOES NOT LOSE ITS CONSTITUTIONAL
PROTECTION MERELY BECAUSE IT IS EFFECTIVE CRITICISM AND HENCE
DIMINISHES THEIR OFFICIAL REPUTATIONS. 

IF NEITHER FACTUAL ERROR NOR DEFAMATORY CONTENT SUFFICES TO REMOVE
THE CONSTITUTIONAL SHIELD FROM CRITICISM OF OFFICIAL CONDUCT, THE
COMBINATION OF THE TWO ELEMENTS IS NO LESS INADEQUATE.  THIS IS THE
LESSON TO BE DRAWN FROM THE GREAT CONTROVERSY OVER THE SEDITION ACT OF
1798, 1 STAT. 596, WHICH FIRST CRYSTALLIZED A NATIONAL AWARENESS OF THE
CENTRAL MEANING OF THE FIRST AMENDMENT.  SEE LEVY, LEGACY OF
SUPPRESSION (1960), AT 258 ET SEQ.; SMITH, FREEDOM'S FETTERS (1956), AT
426, 431, AND PASSIM.  THAT STATUTE MADE IT A CRIME, PUNISHABLE BY A
$5,000 FINE AND FIVE YEARS IN PRISON, "IF ANY PERSON SHALL WRITE,
PRINT, UTTER OR PUBLISH  ...  ANY FALSE, SCANDALOUS AND MALICIOUS
WRITING OR WRITINGS AGAINST THE GOVERNMENT OF THE UNITED STATES, OR
EITHER HOUSE OF THE CONGRESS  ...  , OR THE PRESIDENT  ...  , WITH
INTENT TO DEFAME  ...  OR TO BRING THEM, OR EITHER OF THEM, INTO
CONTEMPT OR DISREPUTE; OR TO EXCITE AGAINST THEM, OR EITHER OR ANY OF
THEM, THE HATRED OF THE GOOD PEOPLE OF THE UNITED STATES."  THE ACT
ALLOWED THE DEFENDANT THE DEFENSE OF TRUTH, AND PROVIDED THAT THE JURY
WERE TO BE JUDGES BOTH OF THE LAW AND THE FACTS.  DESPITE THESE
QUALIFICATIONS, THE ACT WAS VIGOROUSLY CONDEMNED AS UNCONSTITUTIONAL IN
AN ATTACK JOINED IN BY JEFFERSON AND MADISON.  IN THE FAMOUS VIRGINIA
RESOLUTIONS OF 1798, THE GENERAL ASSEMBLY OF VIRGINIA RESOLVED THAT
IT: 

"DOTH PARTICULARLY PROTEST AGAINST THE PALPABLE AND ALARMING
INFRACTIONS OF THE CONSTITUTION, IN THE TWO LATE CASES OF THE 'ALIEN
AND SEDITION ACTS,' PASSED AT THE LAST SESSION OF CONGRESS  ...  . THE
SEDITION ACT EXERCISES  ...  A POWER NOT DELEGATED BY THE CONSTITUTION,
BUT, ON THE CONTRARY, EXPRESSLY AND POSITIVELY FORBIDDEN BY ONE OF THE
AMENDMENTS THERETO - A POWER WHICH, MORE THAN ANY OTHER, OUGHT TO
PRODUCE UNIVERSAL ALARM, BECAUSE IT IS LEVELLED AGAINST THE RIGHT OF
FREELY EXAMINING PUBLIC CHARACTERS AND MEASURES, AND OF FREE
COMMUNICATION AMONG THE PEOPLE THEREON, WHICH HAS EVER BEEN JUSTLY
DEEMED THE ONLY EFFECTUAL GUARDIAN OF EVERY OTHER RIGHT."  4 ELLIOT'S
DEBATES, SUPRA, PP. 553-554. 

MADISON PREPARED THE REPORT IN SUPPORT OF THE PROTEST.  HIS PREMISE
WAS THAT THE CONSTITUTION CREATED A FORM OF GOVERNMENT UNDER WHICH "THE
PEOPLE, NOT THE GOVERNMENT, POSSESS THE ABSOLUTE SOVEREIGNTY."  THE
STRUCTURE OF THE GOVERNMENT DISPERSED POWER IN REFLECTION OF THE
PEOPLE'S DISTRUST OF CONCENTRATED POWER, AND OF POWER ITSELF AT ALL
LEVELS.  THIS FORM OF GOVERNMENT WAS "ALTOGETHER DIFFERENT" FROM THE
BRITISH FORM, UNDER WHICH THE CROWN WAS SOVEREIGN AND THE PEOPLE WERE
SUBJECTS.  "IS IT NOT NATURAL AND NECESSARY, UNDER SUCH DIFFERENT
CIRCUMSTANCES," HE ASKED, "THAT A DIFFERENT DEGREE OF FREEDOM IN THE
USE OF THE PRESS SHOULD BE CONTEMPLATED?"  ID., PP. 569-570.  EARLIER,
IN A DEBATE IN THE HOUSE OF REPRESENTATIVES, MADISON HAD SAID:  "IF WE
ADVERT TO THE NATURE OF REPUBLICAN GOVERNMENT, WE SHALL FIND THAT THE
CENSORIAL POWER IS IN THE PEOPLE OVER THE GOVERNMENT, AND NOT IN THE
GOVERNMENT OVER THE PEOPLE."  4 ANNALS OF CONGRESS, P. 934 (1794).  OF
THE EXERCISE OF THAT POWER BY THE PRESS, HIS REPORT SAID:  "IN EVERY
STATE, PROBABLY, IN THE UNION, THE PRESS HAS EXERTED A FREEDOM IN
CANVASSING THE MERITS AND MEASURES OF PUBLIC MEN, OF EVERY DESCRIPTION,
WHICH HAS NOT BEEN CONFINED TO THE STRICT LIMITS OF THE COMMON LAW.  ON
THIS FOOTING THE FREEDOM OF THE PRESS HAS STOOD; ON THIS FOUNDATION IT
YET STANDS  ...  ."  4 ELLIOT'S DEBATES, SUPRA, P. 570.  THE RIGHT OF
FREE PUBLIC DISCUSSION OF THE STEWARDSHIP OF PUBLIC OFFICIALS WAS THUS,
IN MADISON'S VIEW, A FUNDAMENTAL PRINCIPLE OF THE AMERICAN FORM OF
GOVERNMENT.  (FN15) 

ALTHOUGH THE SEDITION ACT WAS NEVER TESTED IN THIS COURT, (FN16) THE
ATTACK UPON ITS VALIDITY HAS CARRIED THE DAY IN THE COURT OF HISTORY. 
FINES LEVIED IN ITS PROSECUTION WERE REPAID BY ACT OF CONGRESS ON THE
GROUND THAT IT WAS UNCONSTITUTIONAL.  SEE, E.G., ACT OF JULY 4, 1840,
C. 45, 6 STAT. 802, ACCOMPANIED BY H.R. REP. NO. 86, 26TH CONG., 1ST
SESS. (1840).  CALHOUN, REPORTING TO THE SENATE ON FEBRUARY 4, 1836,
ASSUMED THAT ITS INVALIDITY WAS A MATTER "WHICH NO ONE NOW DOUBTS." 
REPORT WITH SENATE BILL NO. 122, 24TH CONG., 1ST SESS., P. 3. 
JEFFERSON, AS PRESIDENT, PARDONED THOSE WHO HAD BEEN CONVICTED AND
SENTENCED UNDER THE ACT AND REMITTED THEIR FINES, STATING:  "I
DISCHARGED EVERY PERSON UNDER PUNISHMENT OR PROSECUTION UNDER THE
SEDITION LAW, BECAUSE I CONSIDERED, AND NOW CONSIDER, THAT LAW TO BE A
NULLITY, AS ABSOLUTE AND AS PALPABLE AS IF CONGRESS HAD ORDERED US TO
FALL DOWN AND WORSHIP A GOLDEN IMAGE."  LETTER TO MRS. ADAMS, JULY 22,
1804, 4 JEFFERSON'S WORKS (WASHINGTON ED.), PP. 555, 556.  THE
INVALIDITY OF THE ACT HAS ALSO BEEN ASSUMED BY JUSTICES OF THIS COURT. 
SEE HOLMES, J., DISSENTING AND JOINED BY BRANDEIS, J., IN ABRAMS V.
UNITED STATES, 250 U.S. 616, 630; JACKSON, J., DISSENTING IN
BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 288-289; DOUGLAS, THE RIGHT OF
THE PEOPLE (1958), P. 47.  SEE ALSO COOLEY, CONSTITUTIONAL LIMITATIONS
(8TH ED., CARRINGTON, 1927), PP. 899-900; CHAFEE, FREE SPEECH IN THE
UNITED STATES (1942), PP. 27-28.  THESE VIEWS REFLECT A BROAD CONSENSUS
THAT THE ACT, BECAUSE OF THE RESTRAINT IT IMPOSED UPON CRITICISM OF
GOVERNMENT AND PUBLIC OFFICIALS, WAS INCONSISTENT WITH THE FIRST
AMENDMENT. 

THERE IS NO FORCE IN RESPONDENT'S ARGUMENT THAT THE CONSTITUTIONAL
LIMITATIONS IMPLICIT IN THE HISTORY OF THE SEDITION ACT APPLY ONLY TO
CONGRESS AND NOT TO THE STATES.  IT IS TRUE THAT THE FIRST AMENDMENT
WAS ORIGINALLY ADDRESSED ONLY TO ACTION BY THE FEDERAL GOVERNMENT, AND
THAT JEFFERSON, FOR ONE, WHILE DENYING THE POWER OF CONGRESS "TO
CONTROUL THE FREEDOM OF THE PRESS," RECOGNIZED SUCH A POWER IN THE
STATES.  SEE THE 1804 LETTER TO ABIGAIL ADAMS QUOTED IN DENNIS V.
UNITED STATES, 341 U.S. 494, 522, N. 4 (CONCURRING OPINION).  BUT THIS
DISTINCTION WAS ELIMINATED WITH THE ADOPTION OF THE FOURTEENTH
AMENDMENT AND THE APPLICATION TO THE STATES OF THE FIRST AMENDMENT'S
RESTRICTIONS.  SEE, E.G., GITLOW V. NEW YORK, 268 U.S. 652, 666;
SCHNEIDER V. STATE, 308 U.S. 147, 160; BRIDGES V. CALIFORNIA, 314 U.S.
252, 268; EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 235. 

WHAT A STATE MAY NOT CONSTITUTIONALLY BRING ABOUT BY MEANS OF A
CRIMINAL STATUTE IS LIKEWISE BEYOND THE REACH OF ITS CIVIL LAW OF
LIBEL.  (FN17)  THE FEAR OF DAMAGE AWARDS UNDER A RULE SUCH AS THAT
INVOKED BY THE ALABAMA COURTS HERE MAY BE MARKEDLY MORE INHIBITING THAN
THE FEAR OF PROSECUTION UNDER A CRIMINAL STATUTE.  SEE CITY OF CHICAGO
V. TRIBUNE CO., 307 ILL. 595, 607, 139 N.E. 86, 90 (1923).  ALABAMA,
FOR EXAMPLE, HAS A CRIMINAL LIBEL LAW WHICH SUBJECTS TO PROSECUTION
"ANY PERSON WHO SPEAKS, WRITES, OR PRINTS OF AND CONCERNING ANOTHER ANY
ACCUSATION FALSELY AND MALICIOUSLY IMPORTING THE COMMISSION BY SUCH
PERSON OF A FELONY, OR ANY OTHER INDICTABLE OFFENSE INVOLVING MORAL
TURPITUDE," AND WHICH ALLOWS AS PUNISHMENT UPON CONVICTION A FINE NOT
EXCEEDING $500 AND A PRISON SENTENCE OF SIX MONTHS.  ALABAMA CODE, TIT.
14, SEC 350.  PRESUMABLY A PERSON CHARGED WITH VIOLATION OF THIS
STATUTE ENJOYS ORDINARY CRIMINAL-LAW SAFEGUARDS SUCH AS THE
REQUIREMENTS OF AN INDICTMENT AND OF PROOF BEYOND A REASONABLE DOUBT. 
THESE SAFEGUARDS ARE NOT AVAILABLE TO THE DEFENDANT IN A CIVIL ACTION. 
THE JUDGMENT AWARDED IN THIS CASE - WITHOUT THE NEED FOR ANY PROOF OF
ACTUAL PECUNIARY LOSS - WAS ONE THOUSAND TIMES GREATER THAN THE MAXIMUM
FINE PROVIDED BY THE ALABAMA CRIMINAL STATUTE, AND ONE HUNDRED TIMES
GREATER THAN THAT PROVIDED BY THE SEDITION ACT.  AND SINCE THERE IS NO
DOUBLE-JEOPARDY LIMITATION APPLICABLE TO CIVIL LAWSUITS, THIS IS NOT
THE ONLY JUDGMENT THAT MAY BE AWARDED AGAINST PETITIONERS FOR THE SAME
PUBLICATION.  (FN18)  WHETHER OR NOT A NEWSPAPER CAN SURVIVE A
SUCCESSION OF SUCH JUDGMENTS, THE PALL OF FEAR AND TIMIDITY IMPOSED
UPON THOSE WHO WOULD GIVE VOICE TO PUBLIC CRITICISM IS AN ATMOSPHERE IN
WHICH THE FIRST AMENDMENT FREEDOMS CANNOT SURVIVE.  PLAINLY THE ALABAMA
LAW OF CIVIL LIBEL IS "A FORM OF REGULATION THAT CREATES HAZARDS TO
PROTECTED FREEDOMS MARKEDLY GREATER THAN THOSE THAT ATTEND RELIANCE
UPON THE CRIMINAL LAW."  BANTAM BOOKS, INC., V. SULLIVAN, 372 U.S. 58,
70. 

THE STATE RULE OF LAW IS NOT SAVED BY ITS ALLOWANCE OF THE DEFENSE OF
TRUTH.  A DEFENSE FOR ERRONEOUS STATEMENTS HONESTLY MADE IS NO LESS
ESSENTIAL HERE THAN WAS THE REQUIREMENT OF PROOF OF GUILTY KNOWLEDGE
WHICH, IN SMITH V. CALIFORNIA, 361 U.S. 147, WE HELD INDISPENSABLE TO A
VALID CONVICTION OF A BOOKSELLER FOR POSSESSING OBSCENE WRITINGS FOR
SALE.  WE SAID: 

"FOR IF THE BOOKSELLER IS CRIMINALLY LIABLE WITHOUT KNOWLEDGE OF THE
CONTENTS,  ...  HE WILL TEND TO RESTRICT THE BOOKS HE SELLS TO THOSE HE
HAS INSPECTED; AND THUS THE STATE WILL HAVE IMPOSED A RESTRICTION UPON
THE DISTRIBUTION OF CONSTITUTIONALLY PROTECTED AS WELL AS OBSCENE
LITERATURE  ... . AND THE BOOKSELLER'S BURDEN WOULD BECOME THE PUBLIC'S
BURDEN, FOR BY RESTRICTING HIM THE PUBLIC'S ACCESS TO READING MATTER
WOULD BE RESTRICTED  ...  .  HIS TIMIDITY IN THE FACE OF HIS ABSOLUTE
CRIMINAL LIABILITY, THUS WOULD TEND TO RESTRICT THE PUBLIC'S ACCESS TO
FORMS OF THE PRINTED WORD WHICH THE STATE COULD NOT CONSTITUTIONALLY
SUPPRESS DIRECTLY.  THE BOOKSELLER'S SELF-CENSORSHIP, COMPELLED BY THE
STATE, WOULD BE A CENSORSHIP AFFECTING THE WHOLE PUBLIC, HARDLY LESS
VIRULENT FOR BEING PRIVATELY ADMINISTERED.  THROUGH IT, THE
DISTRIBUTION OF ALL BOOKS, BOTH OBSCENE AND NOT OBSCENE, WOULD BE
IMPEDED."  (361 U.S. 147, 153-154.)    A RULE COMPELLING THE CRITIC OF
OFFICIAL CONDUCT TO GUARANTEE THE TRUTH OF ALL HIS FACTUAL ASSERTIONS -
AND TO DO SO ON PAIN OF LIBEL JUDGMENTS VIRTUALLY UNLIMITED IN AMOUNT -
LEADS TO A COMPARABLE "SELF-CENSORSHIP."  ALLOWANCE OF THE DEFENSE OF
TRUTH, WITH THE BURDEN OF PROVING IT ON THE DEFENDANT, DOES NOT MEAN
THAT ONLY FALSE SPEECH WILL BE DETERRED.  (FN19)  EVEN COURTS ACCEPTING
THIS DEFENSE AS AN ADEQUATE SAFEGUARD HAVE RECOGNIZED THE DIFFICULTIES
OF ADDUCING LEGAL PROOFS THAT THE ALLEGED LIBEL WAS TRUE IN ALL ITS
FACTUAL PARTICULARS.  SEE, E.G., POST PUBLISHING CO. V. HALLAM, 59 F.
530, 540 (C.A. 6TH CIR. 1893); SEE ALSO NOEL, DEFAMATION OF PUBLIC
OFFICERS AND CANDIDATES, 49 COL. L. REV. 875, 892 (1949).  UNDER SUCH A
RULE, WOULD-BE CRITICS OF OFFICIAL CONDUCT MAY BE DETERRED FROM VOICING
THEIR CRITICISM, EVEN THOUGH IT IS BELIEVED TO BE TRUE AND EVEN THOUGH
IT IS IN FACT TRUE, BECAUSE OF DOUBT WHETHER IT CAN BE PROVED IN COURT
OR FEAR OF THE EXPENSE OF HAVING TO DO SO.  THEY TEND TO MAKE ONLY
STATEMENTS WHICH "STEER FAR WIDER OF THE UNLAWFUL ZONE."   SPEISER V.
RANDALL, SUPRA, 357 U.S., AT 526.  THE RULE THUS DAMPENS THE VIGOR AND
LIMITS THE VARIETY OF PUBLIC DEBATE.  IT IS INCONSISTENT WITH THE FIRST
AND FOURTEENTH AMENDMENTS. 

THE CONSTITUTIONAL GUARANTEES REQUIRE, WE THINK, A FEDERAL RULE THAT
PROHIBITS A PUBLIC OFFICIAL FROM RECOVERING DAMAGES FOR A DEFAMATORY
FALSEHOOD RELATING TO HIS OFFICIAL CONDUCT UNLESS HE PROVES THAT THE
STATEMENT WAS MADE WITH "ACTUAL MALICE" - THAT IS, WITH KNOWLEDGE THAT
IT WAS FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR
NOT.  AN OFT-CITED STATEMENT OF A LIKE RULE, WHICH HAS BEEN ADOPTED BY
A NUMBER OF STATE COURTS, (FN20) IS FOUND IN THE KANSAS CASE OF COLEMAN
V. MACLENNAN, 78 KAN. 711, 98 P. 281 (1908).  THE STATE ATTORNEY
GENERAL, A CANDIDATE FOR RE-ELECTION AND A MEMBER OF THE COMMISSION
CHARGED WITH THE MANAGEMENT AND CONTROL OF THE STATE SCHOOL FUND, SUED
A NEWSPAPER PUBLISHER FOR ALLEGED LIBEL IN AN ARTICLE PURPORTING TO
STATE FACTS RELATING TO HIS OFFICIAL CONDUCT IN CONNECTION WITH A
SCHOOL-FUND TRANSACTION.  THE DEFENDANT PLEADED PRIVILEGE AND THE TRIAL
JUDGE, OVER THE PLAINTIFF'S OBJECTION, INSTRUCTED THE JURY THAT: 

"WHERE AN ARTICLE IS PUBLISHED AND CIRCULATED AMONG VOTERS FOR THE
SOLE PURPOSE OF GIVING WHAT THE DEFENDANT BELIEVES TO BE TRUTHFUL
INFORMATION CONCERNING A CANDIDATE FOR PUBLIC OFFICE AND FOR THE
PURPOSE OF ENABLING SUCH VOTERS TO CAST THEIR BALLOT MORE
INTELLIGENTLY, AND THE WHOLE THING IS DONE IN GOOD FAITH AND WITHOUT
MALICE, THE ARTICLE IS PRIVILEGED, ALTHOUGH THE PRINCIPAL MATTERS
CONTAINED IN THE ARTICLE MAY BE UNTRUE IN FACT AND DEROGATORY TO THE
CHARACTER OF THE PLAINTIFF; AND IN SUCH A CASE THE BURDEN IS ON THE
PLAINTIFF TO SHOW ACTUAL MALICE IN THE PUBLICATION OF THE ARTICLE." 

IN ANSWER TO A SPECIAL QUESTION, THE JURY FOUND THAT THE PLAINTIFF
HAD NOT PROVED ACTUAL MALICE, AND A GENERAL VERDICT WAS RETURNED FOR
THE DEFENDANT.  ON APPEAL THE SUPREME COURT OF KANSAS, IN AN OPINION BY
JUSTICE BURCH, REASONED AS FOLLOWS (78 KAN., AT 724, 98 P., AT 286): 

"IT IS OF THE UTMOST CONSEQUENCE THAT THE PEOPLE SHOULD DISCUSS THE
CHARACTER AND QUALIFICATIONS OF CANDIDATES FOR THEIR SUFFRAGES.  THE
IMPORTANCE TO THE STATE AND TO SOCIETY OF SUCH DISCUSSIONS IS SO VAST,
AND THE ADVANTAGES DERIVED ARE SO GREAT, THAT THEY MORE THAN
COUNTERBALANCE THE INCONVENIENCE OF PRIVATE PERSONS WHOSE CONDUCT MAY
BE INVOLVED, AND OCCASIONAL INJURY TO THE REPUTATIONS OF INDIVIDUALS
MUST YIELD TO THE PUBLIC WELFARE, ALTHOUGH AT TIMES SUCH INJURY MAY BE
GREAT.  THE PUBLIC BENEFIT FROM PUBLICITY IS SO GREAT, AND THE CHANCE
OF INJURY TO PRIVATE CHARACTER SO SMALL, THAT SUCH DISCUSSION MUST BE
PRIVILEGED." 

THE COURT THUS SUSTAINED THE TRIAL COURT'S INSTRUCTION AS A CORRECT
STATEMENT OF THE LAW, SAYING: 

"IN SUCH A CASE THE OCCASION GIVES RISE TO A PRIVILEGE, QUALIFIED TO
THIS EXTENT:  ANY ONE CLAIMING TO BE DEFAMED BY THE COMMUNICATION MUST
SHOW ACTUAL MALICE OR GO REMEDILESS.  THIS PRIVILEGE EXTENDS TO A GREAT
VARIETY OF SUBJECTS, AND INCLUDES MATTERS OF PUBLIC CONCERN, PUBLIC
MEN, AND CANDIDATES FOR OFFICE."  78 KAN., AT 723, 98 P., AT 285. 

SUCH A PRIVILEGE FOR CRITICISM OF OFFICIAL CONDUCT (FN21) IS
APPROPRIATELY ANALOGOUS TO THE PROTECTION ACCORDED A PUBLIC OFFICIAL
WHEN HE IS SUED FOR LIBEL BY A PRIVATE CITIZEN.  IN BARR V. MATTEO, 360
U.S. 564, 575, THIS COURT HELD THE UTTERANCE OF A FEDERAL OFFICIAL TO
BE ABSOLUTELY PRIVILEGED IF MADE "WITHIN THE OUTER PERIMETER" OF HIS
DUTIES.  THE STATES ACCORD THE SAME IMMUNITY TO STATEMENTS OF THEIR
HIGHEST OFFICERS, ALTHOUGH SOME DIFFERENTIATE THEIR LESSER OFFICIALS
AND QUALIFY THE PRIVILEGE THEY ENJOY.  (FN22)  BUT ALL HOLD THAT ALL
OFFICIALS ARE PROTECTED UNLESS ACTUAL MALICE CAN BE PROVED.  THE REASON
FOR THE OFFICIAL PRIVILEGE IS SAID TO BE THAT THE THREAT OF DAMAGE
SUITS WOULD OTHERWISE "INHIBIT THE FEARLESS, VIGOROUS, AND EFFECTIVE
ADMINISTRATION OF POLICIES OF GOVERNMENT" AND "DAMPEN THE ARDOR OF ALL
BUT THE MOST RESOLUTE, OR THE MOST IRRESPONSIBLE, IN THE UNFLINCHING
DISCHARGE OF THEIR DUTIES."  BARR V. MATTEO, SUPRA, 360 U.S., AT 571. 
ANALOGOUS CONSIDERATIONS SUPPORT THE PRIVILEGE FOR THE CITIZEN-CRITIC
OF GOVERNMENT.  IT IS AS MUCH HIS DUTY TO CRITICIZE AS IT IS THE
OFFICIAL'S DUTY TO ADMINISTER.  SEE WHITNEY V. CALIFORNIA, 274 U.S.
357, 375 (CONCURRING OPINION OF MR. JUSTICE BRANDEIS), QUOTED SUPRA, P.
270.  AS MADISON SAID, SEE SUPRA, P. 275, "THE CENSORIAL POWER IS IN
THE PEOPLE OVER THE GOVERNMENT, AND NOT IN THE GOVERNMENT OVER THE
PEOPLE."  IT WOULD GIVE PUBLIC SERVANTS AN UNJUSTIFIED PREFERENCE OVER
THE PUBLIC THEY SERVE, IF CRITICS OF OFFICIAL CONDUCT DID NOT HAVE A
FAIR EQUIVALENT OF THE IMMUNITY GRANTED TO THE OFFICIALS THEMSELVES. 

WE CONCLUDE THAT SUCH A PRIVILEGE IS REQUIRED BY THE FIRST AND
FOURTEENTH AMENDMENTS. 

                                 III. 

WE HOLD TODAY THAT THE CONSTITUTION DELIMITS A STATE'S POWER TO AWARD
DAMAGES FOR LIBEL IN ACTIONS BROUGHT BY PUBLIC OFFICIALS AGAINST
CRITICS OF THEIR OFFICIAL CONDUCT.  SINCE THIS IS SUCH AN ACTION,
(FN23) THE RULE REQUIRING PROOF OF ACTUAL MALICE IS APPLICABLE.  WHILE
ALABAMA LAW APPARENTLY REQUIRES PROOF OF ACTUAL MALICE FOR AN AWARD OF
PUNITIVE DAMAGES, (FN24) WHERE GENERAL DAMAGES ARE CONCERNED MALICE IS
"PRESUMED."  SUCH A PRESUMPTION IS INCONSISTENT WITH THE FEDERAL RULE. 
"THE POWER TO CREATE PRESUMPTIONS IS NOT A MEANS OF ESCAPE FROM
CONSTITUTIONAL RESTRICTIONS," BAILEY V. ALABAMA, 219 U.S. 219, 239;
"THE SHOWING OF MALICE REQUIRED FOR THE FORFEITURE OF THE PRIVILEGE IS
NOT PRESUMED BUT IS A MATTER FOR PROOF BY THE PLAINTIFF  ...  ." 
LAWRENCE V. FOX, 357 MICH. 134, 146, 97 N.W.2D 719, 725 (1959), (FN25)
SINCE THE TRIAL JUDGE DID NOT INSTRUCT THE JURY TO DIFFERENTIATE
BETWEEN GENERAL AND PUNITIVE DAMAGES, IT MAY BE THAT THE VERDICT WAS
WHOLLY AN AWARD OF ONE OR THE OTHER.  BUT IT IS IMPOSSIBLE TO KNOW, IN
VIEW OF THE GENERAL VERDICT RETURNED.  BECAUSE OF THIS UNCERTAINTY, THE
JUDGMENT MUST BE REVERSED AND THE CASE REMANDED.  STROMBERG V.
CALIFORNIA, 283 U.S. 359, 367-368; WILLIAMS V. NORTH CAROLINA, 317 U.S.
287, 291-292; SEE YATES V. UNITED STATES, 354 U.S. 298, 311-312; CRAMER
V. UNITED STATES, 325 U.S. 1, 36, N. 45. 

SINCE RESPONDENT MAY SEEK A NEW TRIAL, WE DEEM THAT CONSIDERATIONS OF
EFFECTIVE JUDICIAL ADMINISTRATION REQUIRE US TO REVIEW THE EVIDENCE IN
THE PRESENT RECORD TO DETERMINE WHETHER IT COULD CONSTITUTIONALLY
SUPPORT A JUDGMENT FOR RESPONDENT.  THIS COURT'S DUTY IS NOT LIMITED TO
THE ELABORATION OF CONSTITUTIONAL PRINCIPLES; WE MUST ALSO IN PROPER
CASES REVIEW THE EVIDENCE TO MAKE CERTAIN THAT THOSE PRINCIPLES HAVE
BEEN CONSTITUTIONALLY APPLIED.  THIS IS SUCH A CASE, PARTICULARLY SINCE
THE QUESTION IS ONE OF ALLEGED TRESPASS ACROSS "THE LINE BETWEEN SPEECH
UNCONDITIONALLY GUARANTEED AND SPEECH WHICH MAY LEGITIMATELY BE
REGULATED."  SPEISER V. RANDALL, 357 U.S. 513, 525.  IN CASES WHERE
THAT LINE MUST BE DRAWN, THE RULE IS THAT WE "EXAMINE FOR OURSELVES THE
STATEMENTS IN ISSUE AND THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE TO
SEE  ...  WHETHER THEY ARE OF A CHARACTER WHICH THE PRINCIPLES OF THE
FIRST AMENDMENT, AS ADOPTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, PROTECT."  PENNEKAMP V. FLORIDA, 328 U.S. 331, 335; SEE ALSO
ONE, INC., V. OLESEN, 355 U.S. 371; SUNSHINE BOOK CO. V. SUMMERFIELD,
355 U.S. 372.  WE MUST "MAKE AN INDEPENDENT EXAMINATION OF THE WHOLE
RECORD," EDWARDS V. SOUTH CAROLINA, 372 U.S. 229, 235, SO AS TO ASSURE
OURSELVES THAT THE JUDGMENT DOES NOT CONSTITUTE A FORBIDDEN INTRUSION
ON THE FIELD OF FREE EXPRESSION.  (FN26) 

APPLYING THESE STANDARDS, WE CONSIDER THAT THE PROOF PRESENTED TO
SHOW ACTUAL MALICE LACKS THE CONVINCING CLARITY WHICH THE
CONSTITUTIONAL STANDARD DEMANDS, AND HENCE THAT IT WOULD NOT
CONSTITUTIONALLY SUSTAIN THE JUDGMENT FOR RESPONDENT UNDER THE PROPER
RULE OF LAW.  THE CASE OF THE INDIVIDUAL PETITIONERS REQUIRES LITTLE
DISCUSSION.  EVEN ASSUMING THAT THEY COULD CONSTITUTIONALLY BE FOUND TO
HAVE AUTHORIZED THE USE OF THEIR NAMES ON THE ADVERTISEMENT, THERE WAS
NO EVIDENCE WHATEVER THAT THEY WERE AWARE OF ANY ERRONEOUS STATEMENTS
OR WERE IN ANY WAY RECKLESS IN THAT REGARD.  THE JUDGMENT AGAINST THEM
IS THUS WITHOUT CONSTITUTIONAL SUPPORT. 

AS TO THE TIMES, WE SIMILARLY CONCLUDE THAT THE FACTS DO NOT SUPPORT
A FINDING OF ACTUAL MALICE.  THE STATEMENT BY THE TIMES' SECRETARY
THAT, APART FROM THE PADLOCKING ALLEGATION, HE THOUGHT THE
ADVERTISEMENT WAS "SUBSTANTIALLY CORRECT," AFFORDS NO CONSTITUTIONAL
WARRANT FOR THE ALABAMA SUPREME COURT'S CONCLUSION THAT IT WAS A
"CAVALIER IGNORING OF THE FALSITY OF THE ADVERTISEMENT FROM WHICH THE
JURY COULD NOT HAVE BUT BEEN IMPRESSED WITH THE BAD FAITH OF THE TIMES,
AND ITS MALICIOUSNESS INFERABLE THEREFROM."  THE STATEMENT DOES NOT
INDICATE MALICE AT THE TIME OF THE PUBLICATION; EVEN IF THE
ADVERTISEMENT WAS NOT "SUBSTANTIALLY CORRECT" - ALTHOUGH RESPONDENT'S
OWN PROOFS TEND TO SHOW THAT IT WAS - THAT OPINION WAS AT LEAST A
REASONABLE ONE, AND THERE WAS NO EVIDENCE TO IMPEACH THE WITNESS' GOOD
FAITH IN HOLDING IT.  THE TIMES' FAILURE TO RETRACT UPON RESPONDENT'S
DEMAND, ALTHOUGH IT LATER RETRACTED UPON THE DEMAND OF GOVERNOR
PATTERSON, IS LIKEWISE NOT ADEQUATE EVIDENCE OF MALICE FOR
CONSTITUTIONAL PURPOSES.  WHETHER OR NOT A FAILURE TO RETRACT MAY EVER
CONSTITUTE SUCH EVIDENCE, THERE ARE TWO REASONS WHY IT DOES NOT HERE. 
FIRST, THE LETTER WRITTEN BY THE TIMES REFLECTED A REASONABLE DOUBT ON
ITS PART AS TO WHETHER THE ADVERTISEMENT COULD REASONABLY BE TAKEN TO
REFER TO RESPONDENT AT ALL.  SECOND, IT WAS NOT A FINAL REFUSAL, SINCE
IT ASKED FOR AN EXPLANATION ON THIS POINT - A REQUEST THAT RESPONDENT
CHOSE TO IGNORE.  NOR DOES THE RETRACTION UPON THE DEMAND OF THE
GOVERNOR SUPPLY THE NECESSARY PROOF.  IT MAY BE DOUBTED THAT A FAILURE
TO RETRACT WHICH IS NOT ITSELF EVIDENCE OF MALICE CAN RETROACTIVELY
BECOME SUCH BY VIRTUE OF A RETRACTION SUBSEQUENTLY MADE TO ANOTHER
PARTY.  BUT IN ANY EVENT THAT DID NOT HAPPEN HERE, SINCE THE
EXPLANATION GIVEN BY THE TIMES' SECRETARY FOR THE DISTINCTION DRAWN
BETWEEN RESPONDENT AND THE GOVERNOR WAS A REASONABLE ONE, THE GOOD
FAITH OF WHICH WAS NOT IMPEACHED. 

FINALLY, THERE IS EVIDENCE THAT THE TIMES PUBLISHED THE ADVERTISEMENT
WITHOUT CHECKING ITS ACCURACY AGAINST THE NEWS STORIES IN THE TIMES'
OWN FILES.  THE MERE PRESENCE OF THE STORIES IN THE FILES DOES NOT, OF
COURSE, ESTABLISH THAT THE TIMES "KNEW" THE ADVERTISEMENT WAS FALSE,
SINCE THE STATE OF MIND REQUIRED FOR ACTUAL MALICE WOULD HAVE TO BE
BROUGHT HOME TO THE PERSONS IN THE TIMES' ORGANIZATION HAVING
RESPONSIBILITY FOR THE PUBLICATION OF THE ADVERTISEMENT.  WITH RESPECT
TO THE FAILURE OF THOSE PERSONS TO MAKE THE CHECK, THE RECORD SHOWS
THAT THEY RELIED UPON THEIR KNOWLEDGE OF THE GOOD REPUTATION OF MANY OF
THOSE WHOSE NAMES WERE LISTED AS SPONSORS OF THE ADVERTISEMENT, AND
UPON THE LETTER FROM A. PHILIP RANDOLPH, KNOWN TO THEM AS A RESPONSIBLE
INDIVIDUAL, CERTIFYING THAT THE USE OF THE NAMES WAS AUTHORIZED.  THERE
WAS TESTIMONY THAT THE PERSONS HANDLING THE ADVERTISEMENT SAW NOTHING
IN IT THAT WOULD RENDER IT UNACCEPTABLE UNDER THE TIMES' POLICY OF
REJECTING ADVERTISEMENTS CONTAINING "ATTACKS OF A PERSONAL CHARACTER";
(FN27) THEIR FAILURE TO REJECT IT ON THIS GROUND WAS NOT UNREASONABLE. 
WE THINK THE EVIDENCE AGAINST THE TIMES SUPPORTS AT MOST A FINDING OF
NEGLIGENCE IN FAILING TO DISCOVER THE MISSTATEMENTS, AND IS
CONSTITUTIONALLY INSUFFICIENT TO SHOW THE RECKLESSNESS THAT IS REQUIRED
FOR A FINDING OF ACTUAL MALICE.  CF. CHARLES PARKER CO. V. SILVER CITY
CRYSTAL CO., 142 CONN. 605, 618, 116 A.2D 440, 446 (1955); PHOENIX
NEWSPAPERS, INC., V. CHOISSER, 82 ARIZ. 271, 277-278, 312 P.2D 150, 154
155 (1957). 

WE ALSO THINK THE EVIDENCE WAS CONSTITUTIONALLY DEFECTIVE IN ANOTHER
RESPECT:  IT WAS INCAPABLE OF SUPPORTING THE JURY'S FINDING THAT THE
ALLEGEDLY LIBELOUS STATEMENTS WERE MADE "OF AND CONCERNING"
RESPONDENT.  RESPONDENT RELIES ON THE WORDS OF THE ADVERTISEMENT AND
THE TESTIMONY OF SIX WITNESSES TO ESTABLISH A CONNECTION BETWEEN IT AND
HIMSELF.  THUS, IN HIS BRIEF TO THIS COURT, HE STATES: 

"THE REFERENCE TO RESPONDENT AS POLICE COMMISSIONER IS CLEAR FROM THE
AD.  IN ADDITION, THE JURY HEARD THE TESTIMONY OF A NEWSPAPER EDITOR
...  ; A REAL ESTATE AND INSURANCE MAN  ...  ; THE SALES MANAGER OF A
MEN'S CLOTHING STORE  ...  ; A FOOD EQUIPMENT MAN  ...  ; A SERVICE
STATION OPERATOR ...  ; AND THE OPERATOR OF A TRUCK LINE FOR WHOM
RESPONDENT HAD FORMERLY WORKED  ...  .  EACH OF THESE WITNESSES STATED
THAT HE ASSOCIATED THE STATEMENTS WITH RESPONDENT  ...  ."    THERE WAS
NO REFERENCE TO RESPONDENT IN THE ADVERTISEMENT, EITHER BY NAME OR
OFFICIAL POSITION.  A NUMBER OF THE ALLEGEDLY LIBELOUS STATEMENTS - THE
CHARGES THAT THE DINING HALL WAS PADLOCKED AND THAT DR. KING'S HOME WAS
BOMBED, HIS PERSON ASSAULTED, AND A PERJURY PROSECUTION INSTITUTED
AGAINST HIM - DID NOT EVEN CONCERN THE POLICE; DESPITE THE INGENUITY OF
THE ARGUMENTS WHICH WOULD ATTACH THIS SIGNIFICANCE TO THE WORD "THEY,"
IT IS PLAIN THAT THESE STATEMENTS COULD NOT REASONABLY BE READ AS
ACCUSING RESPONDENT OF PERSONAL INVOLVEMENT IN THE ACTS IN QUESTION. 
THE STATEMENTS UPON WHICH RESPONDENT PRINCIPALLY RELIES AS REFERRING TO
HIM ARE THE TWO ALLEGATIONS THAT DID CONCERN THE POLICE OR POLICE
FUNCTIONS:  THAT TRUCKLOADS OF POLICE  ...  RINGED THE ALABAMA STATE
COLLEGE CAMPUS" AFTER THE DEMONSTRATION ON THE STATE CAPITOL STEPS, AND
THAT DR. KING HAD BEEN "ARRESTED ...  SEVEN TIMES."  THESE STATEMENTS
WERE FALSE ONLY IN THAT THE POLICE HAD BEEN "DEPLOYED NEAR" THE CAMPUS
BUT HAD NOT ACTUALLY "RINGED" IT AND HAD NOT GONE THERE IN CONNECTION
WITH THE STATE CAPITOL DEMONSTRATION, AND IN THAT DR. KING HAD BEEN
ARRESTED ONLY FOUR TIMES.  THE RULING THAT THESE DISCREPANCIES BETWEEN
WHAT WAS TRUE AND WHAT WAS ASSERTED WERE SUFFICIENT TO INJURE
RESPONDENT'S REPUTATION MAY ITSELF RAISE CONSTITUTIONAL PROBLEMS, BUT
WE NEED NOT CONSIDER THEM HERE.  ALTHOUGH THE STATEMENTS MAY BE TAKEN
AS REFERRING TO THE POLICE, THEY DID NOT ON THEIR FACE MAKE EVEN AN
OBLIQUE REFERENCE TO RESPONDENT AS AN INDIVIDUAL.  SUPPORT FOR THE
ASSERTED REFERENCE MUST, THEREFORE, BE SOUGHT IN THE TESTIMONY OF
RESPONDENT'S WITNESSES.  BUT NONE OF THEM SUGGESTED ANY BASIS FOR THE
BELIEF THAT RESPONDENT HIMSELF WAS ATTACKED IN THE ADVERTISEMENT BEYOND
THE BARE FACT THAT HE WAS IN OVERALL CHARGE OF THE POLICE DEPARTMENT
AND THUS BORE OFFICIAL RESPONSIBILITY FOR POLICE CONDUCT; TO THE EXTENT
THAT SOME OF THE WITNESSES THOUGHT RESPONDENT TO HAVE BEEN CHARGED WITH
ORDERING OR APPROVING THE CONDUCT OR OTHERWISE BEING PERSONALLY
INVOLVED IN IT, THEY BASED THIS NOTION NOT ON ANY STATEMENTS IN THE
ADVERTISEMENT, AND NOT ON ANY EVIDENCE THAT HE HAD IN FACT BEEN SO
INVOLVED, BUT SOLELY ON THE UNSUPPORTED ASSUMPTION THAT, BECAUSE OF HIS
OFFICIAL POSITION, HE MUST HAVE BEEN.  (FN28)  THIS RELIANCE ON THE
BARE FACT OF RESPONDENT'S OFFICIAL POSITION (FN29) WAS MADE EXPLICIT BY
THE SUPREME COURT OF ALABAMA.  THAT COURT, IN HOLDING THAT THE TRIAL
COURT "DID NOT ERR IN OVERRULING THE DEMURRER OF THE TIMES IN THE
ASPECT THAT THE LIBELOUS MATTER WAS NOT OF AND CONCERNING THE
PLAINTIFF," BASED ITS RULING ON THE PROPOSITION THAT: 

"WE THINK IT COMMON KNOWLEDGE THAT THE AVERAGE PERSON KNOWS THAT
MUNICIPAL AGENTS, SUCH AS POLICE AND FIREMEN, AND OTHERS, ARE UNDER THE
CONTROL AND DIRECTION OF THE CITY GOVERNING BODY, AND MORE PARTICULARLY
UNDER THE DIRECTION AND CONTROL OF A SINGLE COMMISSIONER.  IN MEASURING
THE PERFORMANCE OR DEFICIENCIES OF SUCH GROUPS, PRAISE OR CRITICISM IS
USUALLY ATTACHED TO THE OFFICIAL IN COMPLETE CONTROL OF THE BODY."  273
ALA., AT 674-675, 144 SO. 2D, AT 39. 

THIS PROPOSITION HAS DISQUIETING IMPLICATIONS FOR CRITICISM OF
GOVERNMENTAL CONDUCT.  FOR GOOD REASON, "NO COURT OF LAST RESORT IN
THIS COUNTRY HAS EVER HELD, OR EVEN SUGGESTED, THAT PROSECUTIONS FOR
LIBEL ON GOVERNMENT HAVE ANY PLACE IN THE AMERICAN SYSTEM OF
JURISPRUDENCE."  CITY OF CHICAGO V. TRIBUNE CO., 307 ILL. 595, 601, 139
N.E. 86, 88 (1923).  THE PRESENT PROPOSITION WOULD SIDESTEP THIS
OBSTACLE BY TRANSMUTING CRITICISM OF GOVERNMENT, HOWEVER IMPERSONAL IT
MAY SEEM ON ITS FACE, INTO PERSONAL CRITICISM, AND HENCE POTENTIAL
LIBEL, OF THE OFFICIALS OF WHOM THE GOVERNMENT IS COMPOSED.  THERE IS
NO LEGAL ALCHEMY BY WHICH A STATE MAY THUS CREATE THE CAUSE OF ACTION
THAT WOULD OTHERWISE BE DENIED FOR A PUBLICATION WHICH, AS RESPONDENT
HIMSELF SAID OF THE ADVERTISEMENT, "REFLECTS NOT ONLY ON ME BUT ON THE
OTHER COMMISSIONERS AND THE COMMUNITY."  RAISING AS IT DOES THE
POSSIBILITY THAT A GOOD-FAITH CRITIC OF GOVERNMENT WILL BE PENALIZED
FOR HIS CRITICISM, THE PROPOSITION RELIED ON BY THE ALABAMA COURTS
STRIKES AT THE VERY CENTER OF THE CONSTITUTIONALLY PROTECTED AREA OF
FREE EXPRESSION.  (FN30)  WE HOLD THAT SUCH A PROPOSITION MAY NOT
CONSTITUTIONALLY BE UTILIZED TO ESTABLISH THAT AN OTHERWISE IMPERSONAL
ATTACK ON GOVERNMENTAL OPERATIONS WAS A LIBEL OF AN OFFICIAL
RESPONSIBLE FOR THOSE OPERATIONS.  SINCE IT WAS RELIED ON EXCLUSIVELY
HERE, AND THERE WAS NO OTHER EVIDENCE TO CONNECT THE STATEMENTS WITH
RESPONDENT, THE EVIDENCE WAS CONSTITUTIONALLY INSUFFICIENT TO SUPPORT A
FINDING THAT THE STATEMENTS REFERRED TO RESPONDENT. 

THE JUDGMENT OF THE SUPREME COURT OF ALABAMA IS REVERSED AND THE CASE
IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  A COPY OF THE ADVERTISEMENT IS PRINTED IN THE APPENDIX. 

FN2  RESPONDENT DID NOT CONSIDER THE CHARGE OF EXPELLING THE STUDENTS
TO BE APPLICABLE TO HIM, SINCE "THAT RESPONSIBILITY RESTS WITH THE
STATE DEPARTMENT OF EDUCATION." 

FN3  APPROXIMATELY 394 COPIES OF THE EDITION OF THE TIMES CONTAINING
THE ADVERTISEMENT WERE CIRCULATED IN ALABAMA.  OF THESE, ABOUT 35
COPIES WERE DISTRIBUTED IN MONTGOMERY COUNTY.  THE TOTAL CIRCULATION OF
THE TIMES FOR THAT DAY WAS APPROXIMATELY 650,000. 

FN4  SINCE WE SUSTAIN THE CONTENTIONS OF ALL THE PETITIONERS UNDER
THE FIRST AMENDMENT'S GUARANTEES OF FREEDOM OF SPEECH AND OF THE PRESS
AS APPLIED TO THE STATES BY THE FOURTEENTH AMENDMENT, WE DO NOT DECIDE
THE QUESTIONS PRESENTED BY THE OTHER CLAIMS OF VIOLATION OF THE
FOURTEENTH AMENDMENT.  THE INDIVIDUAL PETITIONERS CONTEND THAT THE
JUDGMENT AGAINST THEM OFFENDS THE DUE PROCESS CLAUSE BECAUSE THERE WAS
NO EVIDENCE TO SHOW THAT THEY HAD PUBLISHED OR AUTHORIZED THE
PUBLICATION OF THE ALLEGED LIBEL, AND THAT THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES WERE VIOLATED BY RACIAL SEGREGATION AND RACIAL BIAS
IN THE COURTROOM.  THE TIMES CONTENDS THAT THE ASSUMPTION OF
JURISDICTION OVER ITS CORPORATE PERSON BY THE ALABAMA COURTS
OVERREACHES THE TERRITORIAL LIMITS OF THE DUE PROCESS CLAUSE.  THE
LATTER CLAIM IS FORECLOSED FROM OUR REVIEW BY THE RULING OF THE ALABAMA
COURTS THAT THE TIMES ENTERED A GENERAL APPEARANCE IN THE ACTION AND
THUS WAIVED ITS JURISDICTIONAL OBJECTION; WE CANNOT SAY THAT THIS
RULING LACKS "FAIR OR SUBSTANTIAL SUPPORT" IN PRIOR ALABAMA DECISIONS. 
SEE THOMPSON V. WILSON, 224 ALA. 299, 140 SO. 439 (1932); COMPARE
N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 454-458. 

FN5  SEE AMERICAN LAW INSTITUTE, RESTATEMENT OF TORTS, SEC 593,
COMMENT B (1938). 

FN6  KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36, 49, AND N.
10; TIMES FILM CORP. V. CITY OF CHICAGO, 365 U.S. 43, 48; ROTH V.
UNITED STATES, 354 U.S. 476, 486-487; BEAUHARNAIS V. ILLINOIS, 343 U.S.
250, 266; PENNEKAMP V. FLORIDA, 328 U.S. 331, 348-349; CHAPLINSKY V.
NEW HAMPSHIRE, 315 U.S. 568, 572; NEAR V. MINNESOTA, 283 U.S. 697,
715. 

FN7  HERNDON V. LOWRY, 301 U.S. 242. 

FN8  BRIDGES V. CALIFORNIA, 314 U.S. 252; PENNEKAMP V. FLORIDA, 328
U.S. 331. 

FN9  DE JONGE V. OREGON, 299 U.S. 353. 

FN10  EDWARDS V. SOUTH CAROLINA, 372 U.S. 229. 

FN11  ROTH V. UNITED STATES, 354 U.S. 476. 

FN12  N.A.A.C.P. V. BUTTON, 371 U.S. 415. 

FN13  SEE ALSO MILL, ON LIBERTY (OXFORD:  BLACKWELL, 1947), AT 47: 

"  ...  TO ARGUE SOPHISTICALLY, TO SUPPRESS FACTS OR ARGUMENTS, TO
MISSTATE THE ELEMENTS OF THE CASE, OR MISREPRESENT THE OPPOSITE OPINION
...  ALL THIS, EVEN TO THE MOST AGGRAVATED DEGREE, IS SO CONTINUALLY
DONE IN PERFECT GOOD FAITH, BY PERSONS WHO ARE NOT CONSIDERED, AND IN
MANY OTHER RESPECTS MAY NOT DESERVE TO BE CONSIDERED, IGNORANT OR
INCOMPETENT, THAT IT IS RARELY POSSIBLE, ON ADEQUATE GROUNDS,
CONSCIENTIOUSLY TO STAMP THE MISREPRESENTATION AS MORALLY CULPABLE; AND
STILL LESS COULD LAW PRESUME TO INTERFERE WITH THIS KIND OF
CONTROVERSIAL MISCONDUCT." 

FN14  THE CLIMATE IN WHICH PUBLIC OFFICIALS OPERATE, ESPECIALLY
DURING A POLITICAL CAMPAIGN, HAS BEEN DESCRIBED BY ONE COMMENTATOR IN
THE FOLLOWING TERMS:  "CHARGES OF GROSS INCOMPETENCE, DISREGARD OF THE
PUBLIC INTEREST, COMMUNIST SYMPATHIES, AND THE LIKE USUALLY HAVE FILLED
THE AIR; AND HINTS OF BRIBERY, EMBEZZLEMENT, AND OTHER CRIMINAL CONDUCT
ARE NOT INFREQUENT."  NOEL, DEFAMATION OF PUBLIC OFFICERS AND
CANDIDATES, 49 COL. L. REV. 875 (1949). 

FOR A SIMILAR DESCRIPTION WRITTEN 60 YEARS EARLIER, SEE CHASE,
CRITICISM OF PUBLIC OFFICERS AND CANDIDATES FOR OFFICE, 23 AM. L. REV.
346 (1889). 

FN15  THE REPORT ON THE VIRGINIA RESOLUTIONS FURTHER STATED: 

"IT IS MANIFESTLY IMPOSSIBLE TO PUNISH THE INTENT TO BRING THOSE WHO
ADMINISTER THE GOVERNMENT INTO DISREPUTE OR CONTEMPT, WITHOUT STRIKING
AT THE RIGHT OF FREELY DISCUSSING PUBLIC CHARACTERS AND MEASURES; ...
WHICH, AGAIN, IS EQUIVALENT TO A PROTECTION OF THOSE WHO ADMINISTER THE
GOVERNMENT, IF THEY SHOULD AT ANY TIME DESERVE THE CONTEMPT OR HATRED
OF THE PEOPLE, AGAINST BEING EXPOSED TO IT, BY FREE ANIMADVERSIONS ON
THEIR CHARACTERS AND CONDUCT.  NOR CAN THERE BE A DOUBT  ...  THAT A
GOVERNMENT THUS INTRENCHED IN PENAL STATUTES AGAINST THE JUST AND
NATURAL EFFECTS OF A CULPABLE ADMINISTRATION, WILL EASILY EVADE THE
RESPONSIBILITY WHICH IS ESSENTIAL TO A FAITHFUL DISCHARGE OF ITS DUTY. 

"LET IT BE RECOLLECTED, LASTLY, THAT THE RIGHT OF ELECTING THE
MEMBERS OF THE GOVERNMENT CONSTITUTES MORE PARTICULARLY THE ESSENCE OF
A FREE AND RESPONSIBLE GOVERNMENT.  THE VALUE AND EFFICACY OF THIS
RIGHT DEPENDS ON THE KNOWLEDGE OF THE COMPARATIVE MERITS AND DEMERITS
OF THE CANDIDATES FOR PUBLIC TRUST, AND ON THE EQUAL FREEDOM,
CONSEQUENTLY, OF EXAMINING AND DISCUSSING THESE MERITS AND DEMERITS OF
THE CANDIDATES RESPECTIVELY."  4 ELLIOT'S DEBATES, SUPRA, P. 575. 

FN16  THE ACT EXPIRED BY ITS TERMS IN 1801. 

FN17  CF. FARMERS UNION V. WDAY, 360 U.S. 525, 535. 

FN18  THE TIMES STATES THAT FOUR OTHER LIBEL SUITS BASED ON THE
ADVERTISEMENT HAVE BEEN FILED AGAINST IT BY OTHERS WHO HAVE SERVED AS
MONTGOMERY CITY COMMISSIONERS AND BY THE GOVERNOR OF ALABAMA; THAT
ANOTHER $500,000 VERDICT HAS BEEN AWARDED IN THE ONLY ONE OF THESE
CASES THAT HAS YET GONE TO TRIAL; AND THAT THE DAMAGES SOUGHT IN THE
OTHER THREE TOTAL $2,000,000. 

FN19  EVEN A FALSE STATEMENT MAY BE DEEMED TO MAKE A VALUABLE
CONTRIBUTION TO PUBLIC DEBATE, SINCE IT BRINGS ABOUT "THE CLEARER
PERCEPTION AND LIVELIER IMPRESSION OF TRUTH, PRODUCED BY ITS COLLISION
WITH ERROR."  MILL, ON LIBERTY (OXFORD:  BLACKWELL, 1947), AT 15; SEE
ALSO MILTON, AREOPAGITICA, IN PROSE WORKS (YALE, 1959), VOL. II, AT
561. 

FN20  E.G., PONDER V. COBB, 257 N.C. 281, 299, 126 S.E.2D 67, 80
(1962); LAWRENCE V. FOX, 357 MICH. 134, 146, 97 N.W.2D 719, 725 (1959);
STICE V. BEACON NEWSPAPER CORP., 185 KAN. 61, 65-67, 340 P.2D 396, 400
401 (1959); BAILEY V. CHARLESTON MAIL ASSN., 126 W.VA. 292, 307, 27
S.E.2D 837, 844 (1943); SALINGER V. COWLES, 195 IOWA 873, 889, 191 N.W.
167, 174 (1922); SNIVELY V. RECORD PUBLISHING CO., 185 CAL. 565, 571
576, 198 P. 1 (1921); MCLEAN V. MERRIMAN, 42 S.D. 394, 175 N.W. 878
(1920).  APPLYING THE SAME RULE TO CANDIDATES FOR PUBLIC OFFICE, SEE
E.G., PHOENIX NEWSPAPERS V. CHOISSER, 82 ARIZ.  271, 276-277, 312 P.2D
150, 154 (1957); FRIEDELL V. BLAKELY PRINTING CO., 163 MINN.  226, 230,
203 N.W. 974, 975 (1925).  AND SEE CHAGNON V. UNION-LEADER CORP., 103
N.H.  426, 438, 174 A.2D 825, 833 (1961), CERT. DENIED, 369 U.S. 830. 

THE CONSENSUS OF SCHOLARLY OPINION APPARENTLY FAVORS THE RULE THAT IS
HERE ADOPTED.  E.G., 1 HARPER AND JAMES, TORTS, SEC 5.26, AT 449-450
(1956); NOEL, DEFAMATION OF PUBLIC OFFICERS AND CANDIDATES, 49 COL. L.
REV. 875, 891-895, 897, 903 (1949); HALLEN, FAIR COMMENT, 8 TEX. L.
REV. 41, 61 (1929); SMITH, CHARGES AGAINST CANDIDATES, 18 MICH. L. REV.
1, 115 (1919); CHASE, CRITICISM OF PUBLIC OFFICERS AND CANDIDATES FOR
OFFICE, 23 AM. L. REV. 346, 367-371 (1889); COOLEY, CONSTITUTIONAL
LIMITATIONS (7TH ED., LANE, 1903), AT 604, 616-628.  BUT SEE, E.G.,
AMERICAN LAW INSTITUTE, RESTATEMENT OF TORTS, SEC 598, COMMENT A
(1938)(REVERSING THE POSITION TAKEN IN TENTATIVE DRAFT 13, SEC 1041(2)
(1936)); VEEDER, FREEDOM OF PUBLIC DISCUSSION, 23 HARV. L. REV. 413,
419 (1910). 

FN21  THE PRIVILEGE IMMUNIZING HONEST MISSTATEMENTS OF FACT IS OFTEN
REFERRED TO AS A "CONDITIONAL" PRIVILEGE TO DISTINGUISH IT FROM THE
"ABSOLUTE" PRIVILEGE RECOGNIZED IN JUDICIAL, LEGISLATIVE,
ADMINISTRATIVE AND EXECUTIVE PROCEEDINGS.  SEE, E.G., PROSSER, TORTS
(2D ED., 1955), SEC 95. 

FN22  SEE 1 HARPER AND JAMES, TORTS, SEC 5.23, AT 429-430 (1956);
PROSSER, TORTS (2D ED., 1955), AT 612-613; AMERICAN LAW INSTITUTE,
RESTATEMENT OF TORTS (1938), SEC 591. 

FN23  WE HAVE NO OCCASION HERE TO DETERMINE HOW FAR DOWN INTO THE
LOWER RANKS OF GOVERNMENTAL EMPLOYEES THE "PUBLIC OFFICIAL" DESIGNATION
WOULD EXTEND FOR PURPOSES OF THIS RULE, OR OTHERWISE TO SPECIFY
CATEGORIES OF PERSONS WHO WOULD OR WOULD NOT BE INCLUDED.  CF. BARR V.
MATTEO, 360 U.S. 564, 573-575.  NOR NEED WE HERE DETERMINE THE
BOUNDARIES OF THE "OFFICIAL CONDUCT" CONCEPT.  IT IS ENOUGH FOR THE
PRESENT CASE THAT RESPONDENT'S POSITION AS AN ELECTED CITY COMMISSIONER
CLEARLY MADE HIM A PUBLIC OFFICIAL, AND THAT THE ALLEGATIONS IN THE
ADVERTISEMENT CONCERNED WHAT WAS ALLEGEDLY HIS OFFICIAL CONDUCT AS
COMMISSIONER IN CHARGE OF THE POLICE DEPARTMENT.  AS TO THE STATEMENTS
ALLEGING THE ASSAULTING OF DR. KING AND THE BOMBING OF HIS HOME, IT IS
IMMATERIAL THAT THEY MIGHT NOT BE CONSIDERED TO INVOLVE RESPONDENT'S
OFFICIAL CONDUCT IF HE HIMSELF HAD BEEN ACCUSED OF PERPETRATING THE
ASSAULT AND THE BOMBING.  RESPONDENT DOES NOT CLAIM THAT THE STATEMENTS
CHARGED HIM PERSONALLY WITH THESE ACTS; HIS CONTENTION IS THAT THE
ADVERTISEMENT CONNECTS HIM WITH THEM ONLY IN HIS OFFICIAL CAPACITY AS
THE COMMISSIONER SUPERVISING THE POLICE, ON THE THEORY THAT THE POLICE
MIGHT BE EQUATED WITH THE "THEY" WHO DID THE BOMBING AND ASSAULTING. 
THUS, IF THESE ALLEGATIONS CAN BE READ AS REFERRING TO RESPONDENT AT
ALL, THEY MUST BE READ AS DESCRIBING HIS PERFORMANCE OF HIS OFFICIAL
DUTIES.    FN24  JOHNSON PUBLISHING CO. V. DAVIS, 271 ALA. 474, 487,
124 SO. 2D 441, 450 (1960).  THUS, THE TRIAL JUDGE HERE INSTRUCTED THE
JURY THAT "MERE NEGLIGENCE OR CARELESSNESS IS NOT EVIDENCE OF ACTUAL
MALICE OR MALICE IN FACT, AND DOES NOT JUSTIFY AN AWARD OF EXEMPLARY OR
PUNITIVE DAMAGES IN AN ACTION FOR LIBEL." 

THE COURT REFUSED, HOWEVER, TO GIVE THE FOLLOWING INSTRUCTION WHICH
HAD BEEN REQUESTED BY THE TIMES:    "I CHARGE YOU  ...  THAT PUNITIVE
DAMAGES, AS THE NAMES INDICATES, ARE DESIGNED TO PUNISH THE DEFENDANT,
THE NEW YORK TIMES COMPANY, A CORPORATION, AND THE OTHER DEFENDANTS IN
THIS CASE,  ... AND I FURTHER CHARGE YOU THAT SUCH PUNITIVE DAMAGES MAY
BE AWARDED ONLY IN THE EVENT THAT YOU, THE JURY, ARE CONVINCED BY A
FAIR PREPONDERANCE OF THE EVIDENCE THAT THE DEFENDANT  ...  WAS
MOTIVATED BY PERSONAL ILL WILL, THAT IS ACTUAL INTENT TO DO THE
PLAINTIFF HARM, OR THAT THE DEFENDANT  ... WAS GUILTY OF GROSS
NEGLIGENCE AND RECKLESSNESS AND NOT OF JUST ORDINARY NEGLIGENCE OR
CARELESSNESS IN PUBLISHING THE MATTER COMPLAINED OF SO AS TO INDICATE A
WANTON DISREGARD OF PLAINTIFF'S RIGHTS." 

THE TRIAL COURT'S ERROR IN FAILING TO REQUIRE ANY FINDING OF ACTUAL
MALICE FOR AN AWARD OF GENERAL DAMAGES MAKES IT UNNECESSARY FOR US TO
CONSIDER THE SUFFICIENCY UNDER THE FEDERAL STANDARD OF THE INSTRUCTIONS
REGARDING ACTUAL MALICE THAT WERE GIVEN AS TO PUNITIVE DAMAGES. 

FN25  ACCORD, COLEMAN V. MACLENNAN, SUPRA, 78 KAN., AT 741, 98 P., AT
292; GOUGH V. TRIBUNE-JOURNAL CO., 75 IDAHO 502, 510, 275 P.2D 663, 668
(1954). 

FN26  THE SEVENTH AMENDMENT DOES NOT, AS RESPONDENT CONTENDS,
PRECLUDE SUCH AN EXAMINATION BY THIS COURT.  THAT AMENDMENT, PROVIDING
THAT "NO FACT TRIED BY A JURY, SHALL BE OTHERWISE REEXAMINED IN ANY
COURT OF THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON
LAW," IS APPLICABLE TO STATE CASES COMING HERE.  CHICAGO, B.&Q.R. CO.
V. CHICAGO, 166 U.S. 226, 242-243; CF. THE JUSTICES V. MURRAY, 9 WALL. 
274.  BUT ITS BAN ON RE-EXAMINATION OF FACTS DOES NOT PRECLUDE US FROM
DETERMINING WHETHER GOVERNING RULES OF FEDERAL LAW HAVE BEEN PROPERLY
APPLIED TO THE FACTS.  "THIS COURT WILL REVIEW THE FINDING OF FACTS BY
A STATE COURT  ...  WHERE A CONCLUSION OF LAW AS TO A FEDERAL RIGHT AND
A FINDING OF FACT ARE SO INTERMINGLED AS TO MAKE IT NECESSARY, IN ORDER
TO PASS UPON THE FEDERAL QUESTION, TO ANALYZE THE FACTS."  FISKE V.
KANSAS, 274 U.S. 380, 385-386.  SEE ALSO HAYNES V. WASHINGTON, 373 U.S.
503, 515-516. 

FN27  THE TIMES HAS SET FORTH IN A BOOKLET ITS "ADVERTISING
ACCEPTABILITY STANDARDS."  LISTED AMONG THE CLASSES OF ADVERTISING THAT
THE NEWSPAPER DOES NOT ACCEPT ARE ADVERTISEMENTS THAT ARE "FRAUDULENT
OR DECEPTIVE," THAT ARE "AMBIGUOUS IN WORDING AND  ...  MAY MISLEAD,"
AND THAT CONTAIN "ATTACKS OF A PERSONAL CHARACTER."  IN REPLYING TO
RESPONDENT'S INTERROGATORIES BEFORE THE TRIAL, THE SECRETARY OF THE
TIMES STATED THAT "AS THE ADVERTISEMENT MADE NO ATTACKS OF A PERSONAL
CHARACTER UPON ANY INDIVIDUAL AND OTHERWISE MET THE ADVERTISING
ACCEPTABILITY STANDARDS PROMULGATED," IT HAD BEEN APPROVED FOR
PUBLICATION. 

FN28  RESPONDENT'S OWN TESTIMONY WAS THAT "AS COMMISSIONER OF PUBLIC
AFFAIRS IT IS PART OF MY DUTY TO SUPERVISE THE POLICE DEPARTMENT AND I
CERTAINLY FEEL LIKE IT (A STATEMENT) IS ASSOCIATED WITH ME WHEN IT
DESCRIBES POLICE ACTIVITIES."  HE THOUGHT THAT "BY VIRTUE OF BEING
POLICE COMMISSIONER AND COMMISSIONER OF PUBLIC AFFAIRS," HE WAS CHARGED
WITH "ANY ACTIVITY ON THE PART OF THE POLICE DEPARTMENT."  "WHEN IT
DESCRIBES POLICE ACTION, CERTAINLY I FEEL IT REFLECTS ON ME AS AN
INDIVIDUAL."  HE ADDED THAT "IT IS MY FEELING THAT IT REFLECTS NOT ONLY
ON ME BUT ON THE OTHER COMMISSIONERS AND THE COMMUNITY." 

GROVER C. HALL TESTIFIED THAT TO HIM THE THIRD PARAGRAPH OF THE
ADVERTISEMENT CALLED TO MIND "THE CITY GOVERNMENT - THE COMMISSIONERS,"
AND THAT "NOW THAT YOU ASK IT I WOULD NATURALLY THINK A LITTLE MORE
ABOUT THE POLICE COMMISSIONER BECAUSE HIS RESPONSIBILITY IS EXCLUSIVELY
WITH THE CONSTABULARY."   IT WAS "THE PHRASE ABOUT STARVATION" THAT LED
TO THE ASSOCIATION; "THE OTHER DIDN'T HIT ME WITH ANY PARTICULAR
FORCE." 

ARNOLD D. BLACKWELL TESTIFIED THAT THE THIRD PARAGRAPH WAS ASSOCIATED
IN HIS MIND WITH "THE POLICE COMMISSIONER AND THE POLICE FORCE.  THE
PEOPLE ON THE POLICE FORCE."  IF HE HAD BELIEVED THE STATEMENT ABOUT
THE PADLOCKING OF THE DINING HALL, HE WOULD HAVE THOUGHT "THAT THE
PEOPLE ON OUR POLICE FORCE OR THE HEADS OF OUR POLICE FORCE WERE ACTING
WITHOUT THEIR JURISDICTION AND WOULD NOT BE COMPETENT FOR THE
POSITION."  I WOULD ASSUME THAT THE COMMISSIONER HAD ORDERED THE POLICE
FORCE TO DO THAT AND THEREFORE IT WOULD BE HIS RESPONSIBILITY." 

HARRY W. KAMINSKY ASSOCIATED THE STATEMENT ABOUT "TRUCKLOADS OF
POLICE" WITH RESPONDENT "BECAUSE HE IS THE POLICE COMMISSIONER."  HE
THOUGHT THAT THE REFERENCE TO ARRESTS IN THE SIXTH PARAGRAPH
"IMPLICATES THE POLICE DEPARTMENT, I THINK, OR THE AUTHORITIES THAT
WOULD DO THAT - ARREST FOLKS FOR SPEEDING AND LOITERING AND SUCH AS
THAT."  ASKED WHETHER HE WOULD ASSOCIATE WITH RESPONDENT A NEWSPAPER
REPORT THAT THE POLICE HAD "BEAT SOMEBODY UP OR ASSAULTED THEM ON THE
STREETS OF MONTGOMERY," HE REPLIED:  "I STILL SAY HE IS THE POLICE
COMMISSIONER AND THOSE MEN ARE WORKING DIRECTLY UNDER HIM AND THEREFORE
I WOULD THINK THAT HE WOULD HAVE SOMETHING TO DO WITH IT."  IN GENERAL,
HE SAID, "I LOOK AT MR. SULLIVAN WHEN I SEE THE POLICE DEPARTMENT." 

H.M. PRICE, SR., TESTIFIED THAT HE ASSOCIATED THE FIRST SENTENCE OF
THE THIRD PARAGRAPH WITH RESPONDENT BECAUSE:  "I WOULD JUST
AUTOMATICALLY CONSIDER THAT THE POLICE COMMISSIONER IN MONTGOMERY WOULD
HAVE TO PUT HIS APPROVAL ON THOSE KIND OF THINGS AS AN INDIVIDUAL." 

WILLIAM M. PARKER, JR., TESTIFIED THAT HE ASSOCIATED THE STATEMENTS
IN THE TWO PARAGRAPHS WITH "THE COMMISSIONERS OF THE CITY OF
MONTGOMERY," AND SINCE RESPONDENT "WAS THE POLICE COMMISSIONER," HE
"THOUGHT OF HIM FIRST."  HE TOLD THE EXAMINING COUNSEL:  "I THINK IF
YOU WERE THE POLICE COMMISSIONER I WOULD HAVE THOUGHT IT WAS SPEAKING
OF YOU." 

HORACE W. WHITE, RESPONDENT'S FORMER EMPLOYER, TESTIFIED THAT THE
STATEMENT ABOUT "TRUCK-LOADS OF POLICE" MADE HIM THINK OF RESPONDENT
"AS BEING THE HEAD OF THE POLICE DEPARTMENT."  ASKED WHETHER HE READ
THE STATEMENT AS CHARGING RESPONDENT HIMSELF WITH RINGING THE CAMPUS OR
HAVING SHOTGUNS AND TEAR-GAS, HE REPLIED:  "WELL, I THOUGHT OF HIS
DEPARTMENT BEING CHARGED WITH IT, YES, SIR.  HE IS THE HEAD OF THE
POLICE DEPARTMENT AS I UNDERSTAND IT."  HE FURTHER SAID THAT THE REASON
HE WOULD HAVE BEEN UNWILLING TO RE-EMPLOY RESPONDENT IF HE HAD BELIEVED
THE ADVERTISEMENT WAS "THE FACT THAT HE ALLOWED THE POLICE DEPARTMENT
TO DO THE THINGS THAT THE PAPER SAY HE DID." 

FN29  COMPARE PONDER V. COBB, 257 N.C. 281, 126 S.E.2D 67 (1962). 

FN30  INSOFAR AS THE PROPOSITION MEANS ONLY THAT THE STATEMENTS ABOUT
POLICE CONDUCT LIBELED RESPONDENT BY IMPLICITLY CRITICIZING HIS ABILITY
TO RUN THE POLICE DEPARTMENT, RECOVERY IS ALSO PRECLUDED IN THIS CASE
BY THE DOCTRINE OF FAIR COMMENT.  SEE AMERICAN LAW INSTITUTE,
RESTATEMENT OF TORTS (1938), SEC 607.  SINCE THE FOURTEENTH AMENDMENT
REQUIRES RECOGNITION OF THE CONDITIONAL PRIVILEGE FOR HONEST
MISSTATEMENTS OF FACT, IT FOLLOWS THAT A DEFENSE OF FAIR COMMENT MUST
BE AFFORDED FOR HONEST EXPRESSION OF OPINION BASED UPON PRIVILEGED, AS
WELL AS TRUE, STATEMENTS OF FACT.  BOTH DEFENSES ARE OF COURSE
DEFEASIBLE IF THE PUBLIC OFFICIAL PROVES ACTUAL MALICE, AS WAS NOT DONE
HERE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

I CONCUR IN REVERSING THIS HALF-MILLION-DOLLAR JUDGMENT AGAINST THE
NEW YORK TIMES COMPANY AND THE FOUR INDIVIDUAL DEFENDANTS.  IN
REVERSING THE COURT HOLDS THAT "THE CONSTITUTION DELIMITS A STATE'S
POWER TO AWARD DAMAGES FOR LIBEL IN ACTIONS BROUGHT BY PUBLIC OFFICIALS
AGAINST CRITICS OF THEIR OFFICIAL CONDUCT."  ANTE, P. 283.  I BASE MY
VOTE TO REVERSE ON THE BELIEF THAT THE FIRST AND FOURTEENTH AMENDMENTS
NOT MERELY "DELIMIT" A STATE'S POWER TO AWARD DAMAGES TO "PUBLIC
OFFICIALS AGAINST CRITICS OF THEIR OFFICIAL CONDUCT" BUT COMPLETELY
PROHIBIT A STATE FROM EXERCISING SUCH A POWER.  THE COURT GOES ON TO
HOLD THAT A STATE CAN SUBJECT SUCH CRITICS TO DAMAGES IF "ACTUAL
MALICE" CAN BE PROVED AGAINST THEM.  "MALICE," EVEN AS DEFINED BY THE
COURT, IS AN ELUSIVE, ABSTRACT CONCEPT, HARD TO PROVE AND HARD TO
DISPROVE.  THE REQUIREMENT THAT MALICE BE PROVED PROVIDES AT BEST AN
EVANESCENT PROTECTION FOR THE RIGHT CRITICALLY TO DISCUSS PUBLIC
AFFAIRS AND CERTAINLY DOES NOT MEASURE UP TO THE STURDY SAFEGUARD
EMBODIED IN THE FIRST AMENDMENT.  UNLIKE THE COURT, THEREFORE, I VOTE
TO REVERSE EXCLUSIVELY ON THE GROUND THAT THE TIMES AND THE INDIVIDUAL
DEFENDANTS HAD AN ABSOLUTE, UNCONDITIONAL CONSTITUTIONAL RIGHT TO
PUBLISH IN THE TIMES ADVERTISEMENT THEIR CRITICISMS OF THE MONTGOMERY
AGENCIES AND OFFICIALS.  I DO NOT BASE MY VOTE TO REVERSE ON ANY
FAILURE TO PROVE THAT THESE INDIVIDUAL DEFENDANTS SIGNED THE
ADVERTISEMENT OR THAT THEIR CRITICISM OF THE POLICE DEPARTMENT WAS
AIMED AT THE PLAINTIFF SULLIVAN, WHO WAS THEN THE MONTGOMERY CITY
COMMISSIONER HAVING SUPERVISION OF THE CITY'S POLICE; FOR PRESENT
PURPOSES I ASSUME THESE THINGS WERE PROVED.  NOR IS MY REASON FOR
REVERSAL THE SIZE OF THE HALF-MILLION-DOLLAR JUDGMENT, LARGE AS IT IS.
IF ALABAMA HAS CONSTITUTIONAL POWER TO USE ITS CIVIL LIBEL LAW TO
IMPOSE DAMAGES ON THE PRESS FOR CRITICIZING THE WAY PUBLIC OFFICIALS
PERFORM OR FAIL TO PERFORM THEIR DUTIES, I KNOW OF NO PROVISION IN THE
FEDERAL CONSTITUTION WHICH EITHER EXPRESSLY OR IMPLIEDLY BARS THE STATE
FROM FIXING THE AMOUNT OF DAMAGES. 

THE HALF-MILLION-DOLLAR VERDICT DOES GIVE DRAMATIC PROOF, HOWEVER,
THAT STATE LIBEL LAWS THREATEN THE VERY EXISTENCE OF AN AMERICA PRESS
VIRILE ENOUGH TO PUBLISH UNPOPULAR VIEWS ON PUBLIC AFFAIRS AND BOLD
ENOUGH TO CRITICIZE THE CONDUCT OF PUBLIC OFFICIALS.  THE FACTUAL
BACKGROUND OF THIS CASE EMPHASIZES THE IMMINENCE AND ENORMITY OF THAT
THREAT.  ONE OF THE ACUTE AND HIGHLY EMOTIONAL ISSUES IN THIS COUNTRY
ARISES OUT OF EFFORTS OF MANY PEOPLE, EVEN INCLUDING SOME PUBLIC
OFFICIALS, TO CONTINUE STATE-COMMANDED SEGREGATION OF RACES IN THE
PUBLIC SCHOOLS AND OTHER PUBLIC PLACES, DESPITE OUR SEVERAL HOLDINGS
THAT SUCH A STATE PRACTICE IS FORBIDDEN BY THE FOURTEENTH AMENDMENT. 
MONTGOMERY IS ONE OF THE LOCALITIES IN WHICH WIDESPREAD HOSTILITY TO
DESEGREGATION HAS BEEN MANIFESTED.  THIS HOSTILITY HAS SOMETIMES
EXTENDED ITSELF TO PERSONS WHO FAVOR DESEGREGATION, PARTICULARLY TO SO
CALLED "OUTSIDE AGITATORS," A TERM WHICH CAN BE MADE TO FIT PAPERS LIKE
THE TIMES, WHICH IS PUBLISHED IN NEW YORK.  THE SCARCITY OF TESTIMONY
TO SHOW THAT COMMISSIONER SULLIVAN SUFFERED ANY ACTUAL DAMAGES AT ALL
SUGGEST THAT THESE FEELINGS OF HOSTILITY HAD AT LEAST AS MUCH TO DO
WITH RENDITION OF THIS HALF-MILLION-DOLLAR VERDICT AS DID AN APPRAISAL
OF DAMAGES.  VIEWED REALISTICALLY, THIS RECORD LENDS SUPPORT TO AN
INFERENCE THAT INSTEAD OF BEING DAMAGED COMMISSIONER SULLIVAN'S
POLITICAL, SOCIAL, AND FINANCIAL PRESTIGE HAS LIKELY BEEN ENHANCED BY
THE TIMES' PUBLICATION.  MOREOVER, A SECOND HALF-MILLION-DOLLAR LIBEL
VERDICT AGAINST THE TIMES BASED ON THE SAME ADVERTISEMENT HAS ALREADY
BEEN AWARDED TO ANOTHER COMMISSIONER.  THERE A JURY AGAIN GAVE THE FULL
AMOUNT CLAIMED.  THERE IS NO REASON TO BELIEVE THAT THERE ARE NOT MORE
SUCH HUGE VERDICTS LURKING JUST AROUND THE CORNER FOR THE TIMES OR ANY
OTHER NEWSPAPER OR BROADCASTER WHICH MIGHT DARE TO CRITICIZE PUBLIC
OFFICIALS.  IN FACT, BRIEFS BEFORE US SHOW THAT IN ALABAMA THERE ARE
NOW PENDING ELEVEN LIBEL SUITS BY LOCAL AND STATE OFFICIALS AGAINST THE
TIMES SEEKING $5,600,000, AND FIVE SUCH SUITS AGAINST THE COLUMBIA
BROADCASTING SYSTEM SEEKING $1,700,000.  MOREOVER, THIS TECHNIQUE FOR
HARASSING AND PUNISHING A FREE PRESS - NOW THAT IT HAS BEEN SHOWN TO BE
POSSIBLE - IS BY NO MEANS LIMITED TO CASES WITH RACIAL OVERTONES; IT
CAN BE USED IN OTHER FIELDS WHERE PUBLIC FEELINGS MAY MAKE LOCAL AS
WELL AS OUT-OF-STATE NEWSPAPERS EASY PREY FOR LIBEL VERDICT SEEKERS. 

IN MY OPINION THE FEDERAL CONSTITUTION HAS DEALT WITH THIS DEADLY
DANGER TO THE PRESS IN THE ONLY WAY POSSIBLE WITHOUT LEAVING THE FREE
PRESS OPEN TO DESTRUCTION - BY GRANTING THE PRESS AN ABSOLUTE IMMUNITY
FOR CRITICISM OF THE WAY PUBLIC OFFICIALS DO THEIR PUBLIC DUTY. 
COMPARE BARR V. MATTEO, 360 U.S. 564.  STOPGAP MEASURES LIKE THOSE THE
COURT ADOPTS ARE IN MY JUDGMENT NOT ENOUGH.  THIS RECORD CERTAINLY DOES
NOT INDICATE THAT ANY DIFFERENT VERDICT WOULD HAVE BEEN RENDERED HERE
WHATEVER THE COURT HAD CHARGED THE JURY ABOUT "MALICE," "TRUTH," "GOOD
MOTIVES," "JUSTIFIABLE ENDS," OR ANY OTHER LEGAL FORMULAS WHICH IN
THEORY WOULD PROTECT THE PRESS.  NOR DOES THE RECORD INDICATE THAT ANY
OF THESE LEGALISTIC WORDS WOULD HAVE CAUSED THE COURTS BELOW TO SET
ASIDE OR TO REDUCE THE HALF-MILLION-DOLLAR VERDICT IN ANY AMOUNT. 

I AGREE WITH THE COURT THAT THE FOURTEENTH AMENDMENT MADE THE FIRST
APPLICABLE TO THE STATES.  (FN1)  THIS MEANS TO ME THAT SINCE THE
ADOPTION OF THE FOURTEENTH AMENDMENT A STATE HAS NO MORE POWER THAN THE
FEDERAL GOVERNMENT TO USE A CIVIL LIBEL LAW OR ANY OTHER LAW TO IMPOSE
DAMAGES FOR MERELY DISCUSSING PUBLIC AFFAIRS AND CRITICIZING PUBLIC
OFFICIALS.  THE POWER OF THE UNITED STATES TO DO THAT IS, IN MY
JUDGMENT, PRECISELY NIL.  SUCH WAS THE GENERAL VIEW HELD WHEN THE FIRST
AMENDMENT WAS ADOPTED AND EVER SINCE.  (FN2)  CONGRESS NEVER HAS SOUGHT
TO CHALLENGE THIS VIEWPOINT BY PASSING ANY CIVIL LIBEL LAW.  IT DID
PASS THE SEDITION ACT IN 1798, (FN3) WHICH MADE IT A CRIME - "SEDITIOUS
LIBEL" - TO CRITICIZE FEDERAL OFFICIALS OR THE FEDERAL GOVERNMENT.  AS
THE COURT'S OPINION CORRECTLY POINTS OUT, HOWEVER, ANTE, PP. 273-276,
THAT ACT CAME TO AN IGNOMINIOUS END AND BY COMMON CONSENT HAS GENERALLY
BEEN TREATED AS HAVING BEEN A WHOLLY UNJUSTIFIABLE AND MUCH TO BE
REGRETTED VIOLATION OF THE FIRST AMENDMENT.  SINCE THE FIRST AMENDMENT
IS NOW MADE APPLICABLE TO THE STATES BY THE FOURTEENTH, IT NO MORE
PERMITS THE STATES TO IMPOSE DAMAGES FOR LIBEL THAN IT DOES THE FEDERAL
GOVERNMENT.    WE WOULD, I THINK, MORE FAITHFULLY INTERPRET THE FIRST
AMENDMENT BY HOLDING THAT AT THE VERY LEAST IT LEAVES THE PEOPLE AND
THE PRESS FREE TO CRITICIZE OFFICIALS AND DISCUSS PUBLIC AFFAIRS WITH
IMPUNITY.  THIS NATION OF OURS ELECTS MANY OF ITS IMPORTANT OFFICIALS;
SO DO THE STATES, THE MUNICIPALITIES, THE COUNTIES, AND EVEN MANY
PRECINCTS.  THESE OFFICIALS ARE RESPONSIBLE TO THE PEOPLE FOR THE WAY
THEY PERFORM THEIR DUTIES.  WHILE OUR COURT HAS HELD THAT SOME KINDS OF
SPEECH AND WRITINGS, SUCH AS "OBSCENITY," ROTH V. UNITED STATES, 354
U.S. 476, AND "FIGHTING WORDS," CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S.
568, ARE NOT EXPRESSION WITHIN THE PROTECTION OF THE FIRST AMENDMENT,
(FN4) FREEDOM TO DISCUSS PUBLIC AFFAIRS AND PUBLIC OFFICIALS IS
UNQUESTIONABLY, AS THE COURT HOLDS TODAY, THE KIND OF SPEECH THE FIRST
AMENDMENT WAS PRIMARILY DESIGNED TO KEEP WITHIN THE AREA OF FREE
DISCUSSION.  TO PUNISH THE EXERCISE OF THIS RIGHT TO DISCUSS PUBLIC
AFFAIRS OR TO PENALIZE IT THROUGH LIBEL JUDGMENTS IS TO ABRIDGE OR SHUT
OFF DISCUSSION OF THE VERY KIND MOST NEEDED.  THIS NATION, I SUSPECT,
CAN LIVE IN PEACE WITHOUT LIBEL SUITS BASED ON PUBLIC DISCUSSIONS OF
PUBLIC AFFAIRS AND PUBLIC OFFICIALS.  BUT I DOUBT THAT A COUNTRY CAN
LIVE IN FREEDOM WHERE ITS PEOPLE CAN BE MADE TO SUFFER PHYSICALLY OR
FINANCIALLY FOR CRITICIZING THEIR GOVERNMENT, ITS ACTIONS, OR ITS
OFFICIALS.  "FOR A REPRESENTATIVE DEMOCRACY CEASES TO EXIST THE MOMENT
THAT THE PUBLIC FUNCTIONARIES ARE BY ANY MEANS ABSOLVED FROM THEIR
RESPONSIBILITY TO THEIR CONSTITUENTS; AND THIS HAPPENS WHENEVER THE
CONSTITUENT CAN BE RESTRAINED IN ANY MANNER FROM SPEAKING, WRITING, OR
PUBLISHING HIS OPINIONS UPON ANY PUBLIC MEASURE, OR UPON THE CONDUCT OF
THOSE WHO MAY ADVISE OR EXECUTE IT."  (FN5)  AN UNCONDITIONAL RIGHT TO
SAY WHAT ONE PLEASES ABOUT PUBLIC AFFAIRS IS WHAT I CONSIDER TO BE THE
MINIMUM GUARANTEE OF THE FIRST AMENDMENT.  (FN6) 

I REGRET THAT THE COURT HAS STOPPED SHORT OF THIS HOLDING
INDISPENSABLE TO PRESERVE OUR FREE PRESS FROM DESTRUCTION. 

FN1  SEE CASES COLLECTED IN SPEISER V. RANDALL, 357 U.S. 513, 530
(CONCURRING OPINION). 

FN2  SEE, E.G., 1 TUCKER, BLACKSTONE'S COMMENTARIES (1803), 297-299
(EDITOR'S APPENDIX).  ST. GEORGE TUCKER, A DISTINGUISHED VIRGINIA
JURIST, TOOK PART IN THE ANNAPOLIS CONVENTION OF 1786, SAT ON BOTH
STATE AND FEDERAL COURTS, AND WAS WIDELY KNOWN FOR HIS WRITINGS ON
JUDICIAL AND CONSTITUTIONAL SUBJECTS. 

FN3  ACT OF JULY 14, 1798, 1 STAT. 596. 

FN4  BUT SEE SMITH V. CALIFORNIA, 361 U.S. 147, 155 (CONCURRING
OPINION); ROTH V. UNITED STATES, 354 U.S. 476, 508 (DISSENTING
OPINION). 

FN5  1 TUCKER, BLACKSTONE'S COMMENTARIES (1803), 297 (EDITOR'S
APPENDIX); CF. BRANT, SEDITIOUS LIBEL:  MYTH AND REALITY, 39 N.Y.U.L.
REV. 1. 

FN6  CF. MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT
(1948). 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING
IN THE RESULT. 

THE COURT TODAY ANNOUNCES A CONSTITUTIONAL STANDARD WHICH PROHIBITS
"A PUBLIC OFFICIAL FROM RECOVERING DAMAGES FOR A DEFAMATORY FALSEHOOD
RELATING TO HIS OFFICIAL CONDUCT UNLESS HE PROVES THAT THE STATEMENT
WAS MADE WITH 'ACTUAL MALICE' - THAT IS, WITH KNOWLEDGE THAT IT WAS
FALSE OR WITH RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR NOT." 
ANTE, AT 279-280.  THE COURT THUS RULES THAT THE CONSTITUTION GIVES
CITIZENS AND NEWSPAPERS A "CONDITIONAL PRIVILEGE" IMMUNIZING
NONMALICIOUS MISSTATEMENTS OF FACT REGARDING THE OFFICIAL CONDUCT OF A
GOVERNMENT OFFICER.  THE IMPRESSIVE ARRAY OF HISTORY (FN1) AND
PRECEDENT MARSHALED BY THE COURT, HOWEVER, CONFIRMS MY BELIEF THAT THE
CONSTITUTION AFFORDS GREATER PROTECTION THAN THAT PROVIDED BY THE
COURT'S STANDARD TO CITIZEN AND PRESS IN EXERCISING THE RIGHT OF PUBLIC
CRITICISM. 

IN MY VIEW, THE FIRST AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION
AFFORD TO THE CITIZEN AND TO THE PRESS AN ABSOLUTE, UNCONDITIONAL
PRIVILEGE TO CRITICIZE OFFICIAL CONDUCT DESPITE THE HARM WHICH MAY FLOW
FROM EXCESSES AND ABUSES.  THE PRIZED AMERICAN RIGHT "TO SPEAK ONE'S
MIND," CF. BRIDGES V. CALIFORNIA, 314 U.S. 252, 270, ABOUT PUBLIC
OFFICIALS AND AFFAIRS NEEDS "BREATHING SPACE TO SURVIVE,"  N.A.A.C.P.
V. BUTTON, 371 U.S. 415, 433.  THE RIGHT SHOULD NOT DEPEND UPON A
PROBING BY THE JURY OF THE MOTIVATION (FN2) OF THE CITIZEN OR PRESS. 
THE THEORY OF OUR CONSTITUTION IS THAT EVERY CITIZEN MAY SPEAK HIS MIND
AND EVERY NEWSPAPER EXPRESS ITS VIEW ON MATTERS OF PUBLIC CONCERN AND
MAY NOT BE BARRED FROM SPEAKING OR PUBLISHING BECAUSE THOSE IN CONTROL
OF GOVERNMENT THINK THAT WHAT IS SAID OR WRITTEN IS UNWISE, UNFAIR,
FALSE, OR MALICIOUS.  IN A DEMOCRATIC SOCIETY, ONE WHO ASSUMES TO ACT
FOR THE CITIZENS IN AN EXECUTIVE, LEGISLATIVE, OR JUDICIAL CAPACITY
MUST EXPECT THAT HIS OFFICIAL ACTS WILL BE COMMENTED UPON AND
CRITICIZED.  SUCH CRITICISM CANNOT, IN MY OPINION, BE MUZZLED OR
DETERRED BY THE COURTS AT THE INSTANCE OF PUBLIC OFFICIALS UNDER THE
LABEL OF LIBEL. 

IT HAS BEEN RECOGNIZED THAT "PROSECUTIONS FOR LIBEL ON GOVERNMENT
HAVE NO PLACE IN THE AMERICAN SYSTEM OF JURISPRUDENCE."  CITY OF
CHICAGO V. TRIBUNE CO., 307 ILL. 595, 601, 139 N.E. 86, 88.  I FULLY
AGREE.  GOVERNMENT, HOWEVER, IS NOT AN ABSTRACTION; IT IS MADE UP OF
INDIVIDUALS - OF GOVERNORS RESPONSIBLE TO THE GOVERNED.  IN A
DEMOCRATIC SOCIETY WHERE MEN ARE FREE BY BALLOTS TO REMOVE THOSE IN
POWER, ANY STATEMENT CRITICAL OF GOVERNMENTAL ACTION IS NECESSARILY "OF
AND CONCERNING" THE GOVERNORS AND ANY STATEMENT CRITICAL OF THE
GOVERNORS' OFFICIAL CONDUCT IS NECESSARILY "OF AND CONCERNING" THE
GOVERNMENT.  IF THE RULE THAT LIBEL ON GOVERNMENT HAS NO PLACE IN OUR
CONSTITUTION IS TO HAVE REAL MEANING, THEN LIBEL ON THE OFFICIAL
CONDUCT OF THE GOVERNORS LIKEWISE CAN HAVE NO PLACE IN OUR
CONSTITUTION. 

WE MUST RECOGNIZE THAT WE ARE WRITING UPON A CLEAN SLATE.  (FN3)  AS
THE COURT NOTES, ALTHOUGH THERE HAVE BEEN "STATEMENTS OF THIS COURT TO
THE EFFECT THAT THE CONSTITUTION DOES NOT PROTECT LIBELOUS PUBLICATION
...  NONE OF THE CASES SUSTAINED THE USE OF LIBEL LAWS TO IMPOSE
SANCTIONS UPON EXPRESSION CRITICAL OF THE OFFICIAL CONDUCT OF PUBLIC
OFFICIALS."  ANTE, AT 268.  WE SHOULD BE PARTICULARLY CAREFUL,
THEREFORE, ADEQUATELY TO PROTECT THE LIBERTIES WHICH ARE EMBODIED IN
THE FIRST AND FOURTEENTH AMENDMENTS.  IT MAY BE URGED THAT DELIBERATELY
AND MALICIOUSLY FALSE STATEMENTS HAVE NO CONCEIVABLE VALUE AS FREE
SPEECH.  THAT ARGUMENT, HOWEVER, IS NOT RESPONSIVE TO THE REAL ISSUE
PRESENTED BY THIS CASE, WHICH IS WHETHER THAT FREEDOM OF SPEECH WHICH
ALL AGREE IS CONSTITUTIONALLY PROTECTED CAN BE EFFECTIVELY SAFEGUARDED
BY A RULE ALLOWING THE IMPOSITION OF LIABILITY UPON A JURY'S EVALUATION
OF THE SPEAKER'S STATE OF MIND.  IF INDIVIDUAL CITIZENS MAY BE HELD
LIABLE IN DAMAGES FOR STRONG WORDS, WHICH A JURY FINDS FALSE AND
MALICIOUSLY MOTIVATED, THERE CAN BE LITTLE DOUBT THAT PUBLIC DEBATE AND
ADVOCACY WILL BE CONSTRAINED.  AND IF NEWSPAPERS, PUBLISHING
ADVERTISEMENTS DEALING WITH PUBLIC ISSUES, THEREBY RISK LIABILITY,
THERE CAN ALSO BE LITTLE DOUBT THAT THE ABILITY OF MINORITY GROUPS TO
SECURE PUBLICATION OF THEIR VIEWS ON PUBLIC AFFAIRS AND TO SEEK SUPPORT
FOR THEIR CAUSES WILL BE GREATLY DIMINISHED.  CF. FARMERS EDUCATIONAL &
COOP.  UNION V. WDAY, INC., 360 U.S. 525, 530.  THE OPINION OF THE
COURT CONCLUSIVELY DEMONSTRATES THE CHILLING EFFECT OF THE ALABAMA
LIBEL LAWS ON FIRST AMENDMENT FREEDOMS IN THE AREA OF RACE RELATIONS. 
THE AMERICAN COLONISTS WERE NOT WILLING, NOR SHOULD WE BE, TO TAKE THE
RISK THAT "MEN WHO INJURE AND OPPRESS THE PEOPLE UNDER THEIR
ADMINISTRATION AND PROVOKE THEM TO CRY OUT AND COMPLAIN" WILL ALSO BE
EMPOWERED TO "MAKE THAT VERY COMPLAINT THE FOUNDATION FOR NEW
OPPRESSIONS AND PROSECUTIONS."  THE TRIAL OF JOHN PETER ZENGER, 17
HOWELL'S ST. TR. 675, 721-722 (1735)(ARGUMENT OF COUNSEL TO THE JURY). 
TO IMPOSE LIABILITY FOR CRITICAL, ALBEIT ERRONEOUS OR EVEN MALICIOUS,
COMMENTS ON OFFICIAL CONDUCT WOULD EFFECTIVELY RESURRECT "THE OBSOLETE
DOCTRINE THAT THE GOVERNED MUST NOT CRITICIZE THEIR GOVERNORS."  CF.
SWEENEY V. PATTERSON, 76 U.S. APP. D.C. 23, 24, 128 F.2D 457, 458. 

OUR NATIONAL EXPERIENCE TEACHES THAT REPRESSIONS BREED HATE AND "THAT
HATE MENACES STABLE GOVERNMENT."  WHITNEY V. CALIFORNIA, 274 U.S. 357,
375 (BRANDEIS, J., CONCURRING).  WE SHOULD BE EVER MINDFUL OF THE WISE
COUNSEL OF CHIEF JUSTICE HUGHES: 

"IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE THE CONSTITUTIONAL
RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN ORDER TO
MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE END THAT
GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND THAT
CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN LIES
THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF CONSTITUTIONAL
GOVERNMENT."  DE JONGE V. OREGON, 299 U.S. 353, 365. 

THIS IS NOT TO SAY THAT THE CONSTITUTION PROTECTS DEFAMATORY
STATEMENTS DIRECTED AGAINST THE PRIVATE CONDUCT OF A PUBLIC OFFICIAL OR
PRIVATE CITIZEN.  FREEDOM OF PRESS AND OF SPEECH INSURES THAT
GOVERNMENT WILL RESPOND TO THE WILL OF THE PEOPLE AND THAT CHANGES MAY
BE OBTAINED BY PEACEFUL MEANS.  PURELY PRIVATE DEFAMATION HAS LITTLE TO
DO WITH THE POLITICAL ENDS OF A SELF-GOVERNING SOCIETY.  THE IMPOSITION
OF LIABILITY FOR PRIVATE DEFAMATION DOES NOT ABRIDGE THE FREEDOM OF
PUBLIC SPEECH OR ANY OTHER FREEDOM PROTECTED BY THE FIRST AMENDMENT. 
(FN4)  THIS, OF COURSE, CANNOT BE SAID "WHERE PUBLIC OFFICIALS ARE
CONCERNED OR WHERE PUBLIC MATTERS ARE INVOLVED  ...  .  ONE MAIN
FUNCTION OF THE FIRST AMENDMENT IS TO ENSURE AMPLE OPPORTUNITY FOR THE
PEOPLE TO DETERMINE AND RESOLVE PUBLIC ISSUES.  WHERE PUBLIC MATTERS
ARE INVOLVED, THE DOUBTS SHOULD BE RESOLVED IN FAVOR OF FREEDOM OF
EXPRESSION RATHER THAN AGAINST IT."  DOUGLAS, THE RIGHT OF THE PEOPLE
(1958), P. 41. 

IN MANY JURISDICTIONS, LEGISLATORS, JUDGES AND EXECUTIVE OFFICERS ARE
CLOTHED WITH ABSOLUTE IMMUNITY AGAINST LIABILITY FOR DEFAMATORY WORDS
UTTERED IN THE DISCHARGE OF THEIR PUBLIC DUTIES.  SEE, E.G., BARR V.
MATTEO, 360 U.S. 564; CITY OF CHICAGO V. TRIBUNE CO., 307 ILL., AT 610,
139 N.E., AT 91.  JUDGE LEARNED HAND ABLY SUMMARIZED THE POLICIES
UNDERLYING THE RULE: 

"IT DOES INDEED GO WITHOUT SAYING THAT AN OFFICIAL, WHO IS IN FACT
GUILTY OF USING HIS POWERS TO VENT HIS SPLEEN UPON OTHERS, OR FOR ANY
OTHER PERSONAL MOTIVE NOT CONNECTED WITH THE PUBLIC GOOD, SHOULD NOT
ESCAPE LIABILITY FOR THE INJURIES HE MAY SO CAUSE; AND, IF IT WERE
POSSIBLE IN PRACTICE TO CONFINE SUCH COMPLAINTS TO THE GUILTY, IT WOULD
BE MONSTROUS TO DENY RECOVERY.  THE JUSTIFICATION FOR DOING SO IS THAT
IT IS IMPOSSIBLE TO KNOW WHETHER THE CLAIM IS WELL FOUNDED UNTIL THE
CASE HAS BEEN TRIED, AND THAT TO SUBMIT ALL OFFICIALS, THE INNOCENT AS
WELL AS THE GUILTY, TO THE BURDEN OF A TRIAL AND TO THE INEVITABLE
DANGER OF ITS OUTCOME, WOULD DAMPEN THE ARDOR OF ALL BUT THE MOST
RESOLUTE, OR THE MOST IRRESPONSIBLE, IN THE UNFLINCHING DISCHARGE OF
THEIR DUTIES.  AGAIN AND AGAIN THE PUBLIC INTEREST CALLS FOR ACTION
WHICH MAY TURN OUT TO BE FOUNDED ON A MISTAKE, IN THE FACE OF WHICH AN
OFFICIAL MAY LATER FIND HIMSELF HARD PUT TO IT TO SATISFY A JURY OF HIS
GOOD FAITH.  THERE MUST INDEED BE MEANS OF PUNISHING PUBLIC OFFICERS
WHO HAVE BEEN TRUANT TO THEIR DUTIES; BUT THAT IS QUITE ANOTHER MATTER
FROM EXPOSING SUCH AS HAVE BEEN HONESTLY MISTAKEN TO SUIT BY ANYONE WHO
HAS SUFFERED FROM THEIR ERRORS.  AS IS SO OFTEN THE CASE, THE ANSWER
MUST BE FOUND IN A BALANCE BETWEEN THE EVILS INEVITABLE IN EITHER
ALTERNATIVE.  IN THIS INSTANCE IT HAS BEEN THOUGHT IN THE END BETTER TO
LEAVE UNREDRESSED THE WRONGS DONE BY DISHONEST OFFICERS THAN TO SUBJECT
THOSE WHO TRY TO DO THEIR DUTY TO THE CONSTANT DREAD OF RETALIATION
...  . 

"THE DECISIONS HAVE, INDEED, ALWAYS IMPOSED AS A LIMITATION UPON THE
IMMUNITY THAT THE OFFICIAL'S ACT MUST HAVE BEEN WITHIN THE SCOPE OF HIS
POWERS; AND IT CAN BE ARGUED THAT OFFICIAL POWERS, SINCE THEY EXIST
ONLY FOR THE PUBLIC GOOD, NEVER COVER OCCASIONS WHERE THE PUBLIC GOOD
IS NOT THEIR AIM, AND HENCE THAT TO EXERCISE A POWER DISHONESTLY IS
NECESSARILY TO OVERSTEP ITS BOUNDS.  A MOMENT'S REFLECTION SHOWS,
HOWEVER, THAT THAT CANNOT BE THE MEANING OF THE LIMITATION WITHOUT
DEFEATING THE WHOLE DOCTRINE.  WHAT IS MEANT BY SAYING THAT THE OFFICER
MUST BE ACTING WITHIN HIS POWER CANNOT BE MORE THAN THAT THE OCCASION
MUST BE SUCH AS WOULD HAVE JUSTIFIED THE ACT, IF HE HAD BEEN USING HIS
POWER FOR ANY OF THE PURPOSES ON WHOSE ACCOUNT IT WAS VESTED IN HIM
...  ."  GREGOIRE V. BIDDLE, 177 F.2D 579, 581. 

IF THE GOVERNMENT OFFICIAL SHOULD BE IMMUNE FROM LIBEL ACTIONS SO
THAT HIS ARDOR TO SERVE THE PUBLIC WILL NOT BE DAMPENED AND "FEARLESS,
VIGOROUS, AND EFFECTIVE ADMINISTRATION OF POLICIES OF GOVERNMENT" NOT
BE INHIBITED, BARR V. MATTEO, SUPRA, AT 571, THEN THE CITIZEN AND THE
PRESS SHOULD LIKEWISE BE IMMUNE FROM LIBEL ACTIONS FOR THEIR CRITICISM
OF OFFICIAL CONDUCT.  THEIR ARDOR AS CITIZENS WILL THUS NOT BE DAMPENED
AND THEY WILL BE FREE "TO APPLAUD OR TO CRITICIZE THE WAY PUBLIC
EMPLOYEES DO THEIR JOBS, FROM THE LEAST TO THE MOST IMPORTANT."  (FN5)
IF LIABILITY CAN ATTACH TO POLITICAL CRITICISM BECAUSE IT DAMAGES THE
REPUTATION OF A PUBLIC OFFICIAL AS A PUBLIC OFFICIAL, THEN NO CRITICAL
CITIZEN CAN SAFELY UTTER ANYTHING BUT FAINT PRAISE ABOUT THE GOVERNMENT
OR ITS OFFICIALS.  THE VIGOROUS CRITICISM BY PRESS AND CITIZEN OF THE
CONDUCT OF THE GOVERNMENT OF THE DAY BY THE OFFICIALS OF THE DAY WILL
SOON YIELD TO SILENCE IF OFFICIALS IN CONTROL OF GOVERNMENT AGENCIES,
INSTEAD OF ANSWERING CRITICISMS, CAN RESORT TO FRIENDLY JURIES TO
FORESTALL CRITICISM OF THEIR OFFICIAL CONDUCT.  (FN6)    THE CONCLUSION
THAT THE CONSTITUTION AFFORDS THE CITIZEN AND THE PRESS AN ABSOLUTE
PRIVILEGE FOR CRITICISM OF OFFICIAL CONDUCT DOES NOT LEAVE THE PUBLIC
OFFICIAL WITHOUT DEFENSES AGAINST UNSUBSTANTIATED OPINIONS OR
DELIBERATE MISSTATEMENTS.  "UNDER OUR SYSTEM OF GOVERNMENT,
COUNTERARGUMENT AND EDUCATION ARE THE WEAPONS AVAILABLE TO EXPOSE THESE
MATTERS, NOT ABRIDGMENT  ...  OF FREE SPEECH  ...  ."  WOOD V. GEORGIA,
370 U.S. 375, 389.  THE PUBLIC OFFICIAL CERTAINLY HAS EQUAL IF NOT
GREATER ACCESS THAN MOST PRIVATE CITIZENS TO MEDIA OF COMMUNICATION. 
IN ANY EVENT, DESPITE THE POSSIBILITY THAT SOME EXCESSES AND ABUSES MAY
GO UNREMEDIED, WE MUST RECOGNIZE THAT "THE PEOPLE OF THIS NATION HAVE
ORDAINED IN THE LIGHT OF HISTORY, THAT, IN SPITE OF THE PROBABILITY OF
EXCESSES AND ABUSES, CERTAIN LIBERTIES ARE, IN THE LONG VIEW, ESSENTIAL
TO ENLIGHTENED OPINION AND RIGHT CONDUCT ON THE PART OF THE CITIZENS OF
A DEMOCRACY."  CANTWELL V. CONNECTICUT, 310 U.S. 296, 310.  AS MR.
JUSTICE BRANDEIS CORRECTLY OBSERVED, "SUNLIGHT IS THE MOST POWERFUL OF
ALL DISINFECTANTS."  (FN7) 

FOR THESE REASONS, I STRONGLY BELIEVE THAT THE CONSTITUTION ACCORDS
CITIZENS AND PRESS AN UNCONDITIONAL FREEDOM TO CRITICIZE OFFICIAL
CONDUCT.  IT NECESSARILY FOLLOWS THAT IN A CASE SUCH AS THIS, WHERE ALL
AGREE THAT THE ALLEGEDLY DEFAMATORY STATEMENTS RELATED TO OFFICIAL
CONDUCT, THE JUDGMENTS FOR LIBEL CANNOT CONSTITUTIONALLY BE SUSTAINED. 

FN1  I FULLY AGREE WITH THE COURT THAT THE ATTACK UPON THE VALIDITY
OF THE SEDITION ACT OF 1798, 1 STAT. 596, "HAS CARRIED THE DAY IN THE
COURT OF HISTORY," ANTE, AT 276, AND THAT THE ACT WOULD TODAY BE
DECLARED UNCONSTITUTIONAL.  IT SHOULD BE POINTED OUT, HOWEVER, THAT THE
SEDITION ACT PROSCRIBED WRITINGS WHICH WERE "FALSE, SCANDALOUS AND
MALICIOUS."  FOR PROSECUTIONS UNDER THE SEDITION ACT CHARGING MALICE,
SEE, E.G., TRIAL OF MATTHEW LYON (1798), IN WHARTON, STATE TRIALS OF
THE UNITED STATES (1849), P. 333; TRIAL OF THOMAS COOPER (1800), IN
ID., AT 659; TRIAL OF ANTHONY HASWELL (1800), IN ID., AT 684; TRIAL OF
JAMES THOMPSON CALLENDER (1800), IN ID., AT 688. 

FN2  THE REQUIREMENT OF PROVING ACTUAL MALICE OR RECKLESS DISREGARD
MAY, IN THE MIND OF THE JURY, ADD LITTLE TO THE REQUIREMENT OF PROVING
FALSITY, A REQUIREMENT WHICH THE COURT RECOGNIZES NOT TO BE AN ADEQUATE
SAFEGUARD.  THE THOUGHT SUGGESTED BY MR. JUSTICE JACKSON IN UNITED
STATES V. BALLARD, 322 U.S. 78, 92-93, IS RELEVANT HERE:  "AS A MATTER
OF EITHER PRACTICE OR PHILOSOPHY I DO NOT SEE HOW WE CAN SEPARATE AN
ISSUE AS TO WHAT IS BELIEVED FROM CONSIDERATIONS AS TO WHAT IS
BELIEVABLE.  THE MOST CONVINCING PROOF THAT ONE BELIEVES HIS STATEMENTS
IS TO SHOW THAT THEY HAVE BEEN TRUE IN HIS EXPERIENCE.  LIKEWISE, THAT
ONE KNOWINGLY FALSIFIED IS BEST PROVED BY SHOWING THAT WHAT HE SAID
HAPPENED NEVER DID HAPPEN."  SEE NOTE 4, INFRA. 

FN3  IT WAS NOT UNTIL GITLOW V. NEW YORK, 268 U.S. 652, DECIDED IN
1925, THAT IT WAS INTIMATED THAT THE FREEDOM OF SPEECH GUARANTEED BY
THE FIRST AMENDMENT WAS APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH AMENDMENT.  OTHER INTIMATIONS FOLLOWED.  SEE WHITNEY V.
CALIFORNIA, 274 U.S. 357; FISKE V. KANSAS, 274 U.S. 380.  IN 1931 CHIEF
JUSTICE HUGHES SPEAKING FOR THE COURT IN STROMBERG V. CALIFORNIA, 283
U.S. 359, 368, DECLARED:  "IT HAS BEEN DETERMINED THAT THE CONCEPTION
OF LIBERTY UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
EMBRACES THE RIGHT OF FREE SPEECH."  THUS WE DEAL WITH A CONSTITUTIONAL
PRINCIPLE ENUNCIATED LESS THAN FOUR DECADES AGO, AND CONSIDER FOR THE
FIRST TIME THE APPLICATION OF THAT PRINCIPLE TO ISSUES ARISING IN LIBEL
CASES BROUGHT BY STATE OFFICIALS. 

FN4  IN MOST CASES, AS IN THE CASE AT BAR, THERE WILL BE LITTLE
DIFFICULTY IN DISTINGUISHING DEFAMATORY SPEECH RELATING TO PRIVATE
CONDUCT FROM THAT RELATING TO OFFICIAL CONDUCT.  I RECOGNIZE, OF
COURSE, THAT THERE WILL BE A GRAY AREA.  THE DIFFICULTIES OF APPLYING A
PUBLIC-PRIVATE STANDARD ARE, HOWEVER, CERTAINLY OF A DIFFERENT GENRE
FROM THOSE ATTENDING THE DIFFERENTIATION BETWEEN A MALICIOUS AND
NONMALICIOUS STATE OF MIND.  IF THE CONSTITUTIONAL STANDARD IS TO BE
SHAPED BY A CONCEPT OF MALICE, THE SPEAKER TAKES THE RISK NOT ONLY THAT
THE JURY WILL INACCURATELY DETERMINE HIS STATE OF MIND BUT ALSO THAT
THE JURY WILL FAIL PROPERLY TO APPLY THE CONSTITUTIONAL STANDARD SET BY
THE ELUSIVE CONCEPT OF MALICE.  SEE NOTE 2, SUPRA. 

FN5  MR. JUSTICE BLACK CONCURRING IN BARR V. MATTEO, 360 U.S. 564,
577, OBSERVED THAT: "THE EFFECTIVE FUNCTIONING OF A FREE GOVERNMENT
LIKE OURS DEPENDS LARGELY ON THE FORCE OF AN INFORMED PUBLIC OPINION. 
THIS CALLS FOR THE WIDEST POSSIBLE UNDERSTANDING OF THE QUALITY OF
GOVERNMENT SERVICE RENDERED BY ALL ELECTIVE OR APPOINTED PUBLIC
OFFICIALS OR EMPLOYEES.  SUCH AN INFORMED UNDERSTANDING DEPENDS, OF
COURSE, ON THE FREEDOM PEOPLE HAVE TO APPLAUD OR TO CRITICIZE THE WAY
PUBLIC EMPLOYEES DO THEIR JOBS, FROM THE LEAST TO THE MOST IMPORTANT." 

FN6  SEE NOTES 2, 4, SUPRA. 

FN7  SEE FREUND, THE SUPREME COURT OF THE UNITED STATES (1949), P.
61. 
..END :
















YIATCHOS V. YIATCHOS, EXECUTRIX 376 U.S. 306 


NO. 48.  ARGUED JANUARY 7, 1964 - DECIDED MARCH 9, 1964.  - 60 WASH. 2D
179, 373 P.2D 125, REVERSED IN PART; VACATED IN PART AND REMANDED. 


HUSBAND, WHO RESIDED IN A COMMUNITY PROPERTY STATE, PURCHASED WITH
COMMUNITY FUNDS UNITED STATES SAVINGS BONDS REGISTERED IN HIS NAME WITH
HIS BROTHER, THE PETITIONER, NAMED AS BENEFICIARY.  THE HUSBAND'S WILL
LEFT ALL CASH AND BONDS TO PETITIONER, FOUR SISTERS, AND A NEPHEW. 
PETITIONER SUED TO ESTABLISH OWNERSHIP OF THE SAVINGS BONDS, RELYING ON
31 CFR SEC. 315.66, PROVIDING THAT ON THE REGISTERED OWNER'S DEATH THE
BENEFICIARY WILL BE RECOGNIZED AS OWNER.  THE STATE SUPREME COURT,
AFFIRMING THE JUDGMENT OF THE LOWER COURT THAT HALF THE SAVINGS BONDS
WERE TO GO TO THE WIFE AND THE OTHER HALF UNDER THE WILL, HELD THAT THE
HUSBAND'S PURCHASE OF SUCH BONDS OUT OF COMMUNITY FUNDS CONSTITUTED
"CONSTRUCTIVE FRAUD" OF THE WIFE'S RIGHTS.  HELD:  UNDER 31 CFR SEC.
315.66 PETITIONER, IN ACCORDANCE WITH FREE V. BLAND, 369 U.S. 663, MUST
BE RECOGNIZED AS OWNER OF ALL THE SAVINGS BONDS UNLESS THEIR PURCHASE
BY THE HUSBAND WAS A FRAUD ON HIS WIFE'S PROPERTY RIGHTS OR A BREACH OF
TRUST WITH RESPECT THERETO - CONCERNING WHICH THE CASE IS REMANDED FOR
ESTABLISHMENT OF THE FACTS; BUT IN ANY EVENT PETITIONER IS ENTITLED TO
ONE-HALF THE SAVINGS BONDS (SUBJECT TO POSSIBLE ALLOCATION FOR DEBTS)
SINCE THE HUSBAND OWNED A HALF INTEREST IN THEM WHICH HE COULD DISPOSE
OF TO THE BENEFICIARY OF HIS CHOICE.  PP. 309-313. 

(A)  IF THE WIFE CONSENTED TO OR RATIFIED THE BOND PURCHASE, THERE
WAS NO FRAUD.  P. 310. 

(B)  IF UNDER STATE LAW A WIDOW'S HALF INTEREST IS IN THE ESTATE
GENERALLY, RATHER THAN IN EACH ASSET THEREOF, ALL THE SAVINGS BONDS
MUST GO TO PETITIONER SINCE THEY CONSTITUTED LESS THAN HALF OF THE
GROSS ESTATE; OTHERWISE, AND IN THE ABSENCE OF THE WIDOW'S CONSENT OR
RATIFICATION, SHE IS ENTITLED TO ONE-HALF THE SAVINGS BONDS AND
PETITIONER THE OTHER.  PP. 310-312. 

YIATCHOS V. YIATCHOS, EXECUTRIX, ET AL. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

TWO TERMS AGO IN FREE V. BLAND, 369 U.S. 663, WHERE FEDERAL SAVINGS
BONDS PURCHASED WITH COMMUNITY FUNDS WERE REGISTERED IN A CO-OWNERSHIP
FORM AND THE REGISTERED CO-OWNERS WERE HUSBAND AND WIFE, THE SURVIVOR
WAS HELD ENTITLED TO THE PROCEEDS OF THE BONDS WITHOUT LIABILITY TO
ACCOUNT IN ANY AMOUNT TO THE BENEFICIARIES OF THE DECEASED CO-OWNER,
DESPITE CONFLICTING STATE LAW PURPORTING TO FORBID A MARRIED COUPLE TO
MAKE SURVIVORSHIP ARRANGEMENTS WITH RESPECT TO COMMUNITY PROPERTY AND
REQUIRING SUCH PROPERTY TO PASS AS PART OF THE ESTATE OF THE DECEASED
IN ACCORDANCE WITH HIS WILL OR THE STATE INTESTACY LAWS.  THE SUCCESS
OF THE MANAGEMENT OF THE NATIONAL DEBT WAS DEEMED TO DEPEND UPON THE
SUCCESSFUL SALE OF THE SAVINGS BONDS, ONE OF THE INDUCEMENTS TO
PURCHASERS BEING SURVIVORSHIP PROVISIONS WHICH AFFORDED "A CONVENIENT
METHOD OF AVOIDING COMPLICATED PROBATE PROCEEDINGS."  369 U.S., AT
669.  STATE LAW INTERFERED WITH A LEGITIMATE EXERCISE OF FEDERAL POWER
AND WAS REQUIRED TO GIVE WAY UNDER THE SUPREMACY CLAUSE OF THE
CONSTITUTION. 

THE COURT NEVERTHELESS RECOGNIZED THAT THE FEDERAL LAW WAS NOT TO BE
USED AS A SHIELD FOR FRAUD OR TO PREVENT RELIEF "WHERE THE
CIRCUMSTANCES MANIFEST FRAUD OR A BREACH OF TRUST TANTAMOUNT THERETO ON
THE PART OF A HUSBAND WHILE ACTING IN HIS CAPACITY AS THE MANAGER OF
THE GENERAL COMMUNITY PROPERTY."  369 U.S., AT 670.  THE SCOPE AND
APPLICATION OF THE EXCEPTION TO THE REGULATORY IMPERATIVE - "THE
DOCTRINE OF FRAUD APPLICABLE UNDER FEDERAL LAW IN SUCH CASE," 369 U.S.,
AT 670-671 - WERE LEFT TO DECISION IN OTHER CASES. 

THIS IS ONE OF THOSE CASES.  PETITIONER IS THE BROTHER OF ANGEL
YIATCHOS WHO DIED IN 1958 AND WHO IN 1950-1951 PURCHASED WITH COMMUNITY
FUNDS BELONGING TO HIMSELF AND HIS WIFE UNITED STATES SAVINGS BONDS IN
THE FACE AMOUNT OF $15,075.  THE DECEASED WAS THE REGISTERED OWNER OF
THE BONDS AND THEY WERE MADE PAYABLE ON HIS DEATH TO HIS BROTHER, THE
PETITIONER.  THE DECEASED LEFT A WILL MADE IN 1954, NAMING HIS WIFE AS
EXECUTRIX AND BEQUEATHING ALL CASH AND BONDS OWNED BY HIM AT THE TIME
OF HIS DEATH TO HIS BROTHER, FOUR SISTERS AND A NEPHEW.  PETITIONER
BROUGHT SUIT IN THE APPROPRIATE COURT IN THE STATE OF WASHINGTON TO
ESTABLISH HIS OWNERSHIP OF THE BONDS, RELYING UPON THE FEDERAL
REGULATIONS PROVIDING FOR REGISTRATION OF THE SAVINGS BONDS IN THE
BENEFICIARY FORM AND PROVIDING THAT IN THE CASE OF THE DEATH OF THE
REGISTERED OWNER "THE BENEFICIARY WILL BE RECOGNIZED AS THE SOLE AND
ABSOLUTE OWNER, AND PAYMENT OR REISSUE WILL BE MADE AS THOUGH THE BOND
WERE REGISTERED IN HIS NAME ALONE."  31 CFR SEC. 315.66.  THE TRIAL
COURT, ON STIPULATED FACTS, SUSTAINED THE CLAIMS OF THE WIFE AND THE
OTHER BENEFICIARIES UNDER THE WILL WHO INSISTED THAT SINCE THE BONDS
WERE PURCHASED WITH COMMUNITY FUNDS AND WERE COMMUNITY PROPERTY AT THE
DEATH OF THE DECEASED THEY MUST BE DIVIDED INTO TWO EQUAL PARTS, ONE
HALF TO GO TO THE WIFE AND THE OTHER HALF TO BE DISTRIBUTED IN
ACCORDANCE WITH THE WILL.  THE SUPREME COURT OF WASHINGTON AFFIRMED,
HOLDING THAT THE DECEASED'S "PURCHASE WITH COMMUNITY FUNDS OF BONDS
PAYABLE TO HIM ALONE OR, AFTER HIS DEATH, PAYABLE EXCLUSIVELY TO HIS
BROTHER WAS IN FRAUD OF THE RIGHTS OF THE RESPONDENT WIFE" AND "A VOID
ENDEAVOR TO DIVEST THE WIFE OF ANY INTEREST IN HER OWN PROPERTY."  THE
DECEASED HAVING BEEN UNDER A FIDUCIARY DUTY TO MANAGE THE COMMUNITY
FUNDS FOR THE BENEFIT OF THE COMMUNITY, "A BREACH OF THIS DUTY WAS A
CONSTRUCTIVE FRAUD."  PETITIONER'S CLAIM TO ANY PART OF THE BONDS AS
BENEFICIARY NAMED THEREIN WAS REJECTED SINCE "RESPONDENT WIDOW HAD A
VESTED ONE-HALF INTEREST IN THE BOND PROCEEDS" AND SINCE "THE DESCENT
OF DECEDENT'S INTEREST IS CONTROLLED BY RCW 11.04.050 AND, THEREFORE,
MUST BE DISTRIBUTED ACCORDING TO THE TERMS OF THE WILL."  IN RE
YIATCHOS' ESTATE, 60 WASH. 2D 179, 182, 373 P.2D 125, 127.  WE GRANTED
CERTIORARI TO CONSIDER AN ASSERTED CONFLICT WITH FREE V. BLAND, SUPRA,
WHICH WAS DECIDED WHILE THIS CASE WAS ON APPEAL IN THE WASHINGTON
SUPREME COURT AND WHICH THAT COURT CONSIDERED IN RENDERING ITS OWN
JUDGMENT. 

UNDER THE FEDERAL REGULATIONS PETITIONER IS ENTITLED TO THE BONDS
UNLESS HIS DECEASED BROTHER COMMITTED FRAUD OR BREACH OF TRUST
TANTAMOUNT TO FRAUD.  SINCE THE CONSTRUCTION AND APPLICATION OF A
FEDERAL REGULATION HAVING THE FORCE OF LAW, CALIFORNIA COMM'N V. UNITED
STATES, 355 U.S. 534, 542-545; STANDARD OIL CO. V. JOHNSON, 316 U.S.
481, 484, ARE INVOLVED, WHETHER OR NOT THERE IS FRAUD WHICH WILL BAR
THE NAMED BENEFICIARY IN A PARTICULAR CASE MUST BE DETERMINED AS A
MATTER OF FEDERAL LAW, FREE V. BLAND, SUPRA; CLEARFIELD TRUST CO. V.
UNITED STATES, 318 U.S. 363.  BUT IN APPLYING THE FEDERAL STANDARD WE
SHALL BE GUIDED BY STATE LAW INSOFAR AS THE PROPERTY INTERESTS OF THE
WIDOW CREATED BY STATE LAW ARE CONCERNED.  IT WOULD SEEM OBVIOUS THAT
THE BONDS MAY NOT BE USED AS A DEVICE TO DEPRIVE THE WIDOW OF PROPERTY
RIGHTS WHICH SHE ENJOYS UNDER WASHINGTON LAW AND WHICH WOULD NOT BE
TRANSFERABLE BY HER HUSBAND BUT FOR THE SURVIVORSHIP PROVISIONS OF THE
FEDERAL BONDS. 

PROCEEDING ON THESE PREMISES, WE NOTE THAT UNDER WASHINGTON LAW
SPOUSES MAY AGREE TO CHANGE THE STATUS OF COMMUNITY PROPERTY EITHER BY
AN AGREEMENT TO BECOME EFFECTIVE ON THE DEATH OF EITHER SPOUSE, REV.
CODE WASH. SEC. 26.16.120; IN RE YIATCHOS' ESTATE, 60 WASH.  2D 179,
182, 373 P.2D 125, 127, OR BY GIFT DURING LIFETIME; HANLEY V. MOST, 9
WASH. 2D 429, 458, 115 P.2D 933, 944.  THUS THE WIDOW IN THIS CASE
COULD HAVE CONSENTED TO A GIFT OF COMMUNITY PROPERTY TO HER HUSBAND'S
BROTHER OR TO THE INCLUSION OF THE BONDS IN THAT PORTION OF THE ESTATE
WHICH BELONGED TO HER HUSBAND AND WHICH HE COULD DISPOSE OF AT THE TIME
OF HIS DEATH.  IF SHE GAVE SUCH CONSENT, OR IF SHE RATIFIED THE
PURCHASE AND REGISTRATION OF THE BONDS, THE CONDUCT OF THE HUSBAND WAS
NOT, FOR FEDERAL PURPOSES, FRAUD OR BREACH OF TRUST SUFFICIENT TO AVOID
THE COMMAND OF THE REGULATIONS, AND PETITIONER WOULD BE ENTITLED TO ALL
OF THE BONDS. 

SO FAR PETITIONER APPARENTLY AGREES, BUT HE DENIES THE NEED FOR
FURTHER INQUIRY, CLAIMING ALL OF THE BONDS BECAUSE THE RECORD IS SILENT
ABOUT THE KNOWLEDGE OR CONSENT OF THE WIFE, SHE HAVING MADE NO CLAIM OF
FRAUD AND PRODUCED NO FACTS NEGATIVING HER CONSENT OR KNOWLEDGE.  BUT
WE THINK THE COURSE SUGGESTED BY THE UNITED STATES IN ITS AMICUS CURIAE
BRIEF IS PREFERABLE.  THE FACTUAL RECORD WAS MADE BY THE STIPULATION OF
THE PARTIES PRIOR TO DECISION OF FREE V. BLAND, SUPRA.  BEFORE
PRECLUDING THE WIDOW BECAUSE OF HER OWN CONDUCT, SHE SHOULD HAVE AN
OPPORTUNITY UPON REMAND TO PROVE THE ACTUAL FACTS CONCERNING HER
KNOWLEDGE OR PARTICIPATION IN THE PURCHASE AND REGISTRATION OF THE
BONDS. 

PETITIONER, HOWEVER, ALSO OBJECTS TO A REMAND BECAUSE FURTHER INQUIRY
INTO CONSENT OR ACQUIESCENCE RESTS UPON THE ERRONEOUS ASSUMPTION THAT
THE WIFE COULD OBJECT TO THE HUSBAND'S TRANSFER OF THE BONDS AFTER HIS
DEATH.  SINCE THE PRESENT VALUE OF THE BONDS, OR EVEN THEIR FACE VALUE,
IS LESS THAN ONE-HALF THE COMMUNITY PROPERTY, THE DECEASED, SAYS
PETITIONER, WAS NOT ATTEMPTING TO GIVE AWAY PROPERTY BELONGING TO HIS
WIFE BUT WAS ONLY MAKING USE OF A SIMPLE DEVICE PROVIDED BY FEDERAL LAW
TO DISPOSE OF WHAT HE COULD GIVE BY WILL UNDER THE WASHINGTON LAW.  THE
VALIDITY OF THIS CONTENTION TURNS ON A QUESTION OF STATE LAW ABOUT
WHICH WE ARE NOT ENTIRELY CLEAR AND WHICH MAY BE RESOLVED UPON REMAND. 
ACCORDING TO THE COURT BELOW, THE WIDOW HAD A "VESTED ONE-HALF
INTEREST" IN THE BONDS, WHICH MAY MEAN THAT UNDER WASHINGTON LAW THE
WIFE BEFORE AND AFTER DEATH HAS A HALF INTEREST IN EACH ITEM OF THE
COMMUNITY ESTATE, INCLUDING THE PARTICULAR BONDS INVOLVED IN THIS CASE,
AND CANNOT BE FORCED TO TAKE CASH OR SOMETHING ELSE OF EQUAL VALUE UPON
A DIVISION OF THE COMMUNITY PROPERTY BETWEEN HERSELF AND THOSE ENTITLED
TO TAKE HER HUSBAND'S HALF.  UNDER SUCH CIRCUMSTANCES, SINCE WE CANNOT
SAY THAT THIS PROPERTY RIGHT, IF IT EXISTS, IS INSUBSTANTIAL, TO ALLOW
ALL OF THE BONDS TO PASS TO THE DESIGNATED BENEFICIARY WOULD EFFECT AN
INVOLUNTARY AND IMPERMISSIBLE CONVERSION OF THE WIDOW'S ASSETS. 

ON THE OTHER HAND, REV. CODE WASH. SEC. 26.16.030 PROVIDES THAT "THE
HUSBAND SHALL HAVE THE MANAGEMENT AND CONTROL OF COMMUNITY PERSONAL
PROPERTY, WITH A LIKE POWER OF DISPOSITION AS HE HAS OF HIS SEPARATE
PERSONAL PROPERTY, EXCEPT HE SHALL NOT DEVISE BY WILL MORE THAN ONE
HALF THEREOF."  IF UNDER WASHINGTON LAW, THE WIDOW, AFTER HER HUSBAND'S
DEATH, HAS NO INTEREST IN SPECIFIC ASSETS OWNED BY THE COMMUNITY AND
HER HALF OF THE COMMUNITY ESTATE MAY BE SATISFIED FROM PROPERTY OR
MONEY OTHER THAN THE BONDS, PETITIONER IS ENTITLED TO ALL OF THE BONDS
FOR THEN THERE IS NO FRAUD OR BREACH OF TRUST IN DEROGATION OF THE
WIDOW'S PROPERTY RIGHTS UNDER STATE LAW.  UPON DISSOLUTION OF THE
COMMUNITY ONE-HALF OF THE COMMUNITY PROPERTY BELONGED TO ANGEL
YIATCHOS, WHO WAS FREE, AS OF THE TIME OF DISSOLUTION, TO DISPOSE OF
THIS HALF AS HE PLEASED.  HE MIGHT HAVE LEFT IT TO HIS BROTHER BY
WILL.  INSTEAD HE ELECTED TO EFFECT THE SAME RESULT BY UTILIZING
FEDERAL SAVINGS BONDS WITH THEIR CONVENIENT FEATURE OF PERMITTING
OWNERSHIP SPANNING TWO LIVES.  ON THE ASSUMPTION, THEN, THAT THE WIFE
IS ENTITLED TO HALF OF THE ESTATE, BUT NOT HALF OF EACH PARTICULAR ITEM
OF PROPERTY, THE BONDS HAVE NOT BEEN USED AS AN INSTRUMENT OF FRAUD;
AND THE SURVIVORSHIP PROVISIONS OF THE FEDERAL REGULATIONS MUST
CONTROL, PREEMPTING, IF NECESSARY, INCONSISTENT STATE LAW WHICH
INTERFERES WITH THE LEGITIMATE EXERCISE OF THE FEDERAL GOVERNMENT'S
POWER TO BORROW MONEY.  FREE V. BLAND, SUPRA. 

PETITIONER IS THEREFORE ENTITLED TO ALL OF THE BONDS IF THE WIDOW
CONSENTED TO MAKING HIM THE BENEFICIARY OR IF UNDER WASHINGTON LAW THE
SURVIVING SPOUSE DOES NOT HAVE A ONE-HALF INTEREST IN EACH COMMUNITY
ASSET.  BUT EVEN IF THE WIFE IS NOT BARRED BY HER OWN CONSENT OR BY THE
NATURE OF HER INTEREST FROM CLAIMING A HALF INTEREST IN THE BONDS,
PETITIONER IS ENTITLED TO THE OTHER HALF, THE HALF WHICH BELONGED TO
THE DECEASED AND COULD BE DISPOSED OF BY HIM TO THE BENEFICIARIES OF
HIS CHOICE.  THE WASHINGTON COURT DEEMED THE TRANSACTION VOID AB INITIO
AND REQUIRED THE DECEASED'S HALF TO PASS BY HIS WILL RATHER THAN BY
VIRTUE OF THE BONDS AND THE FORCE OF THE REGULATION.  BUT THE
PETITIONER WAS ENTITLED TO THE PROCEEDS ONLY ON THE DEATH OF THE
HUSBAND, AND THEN ONLY IF THE BONDS HAD NOT MATURED OR BEEN CASHED. 
DURING THE HUSBAND'S LIFE HE WAS THE REGISTERED OWNER OF THE BONDS, AND
WAS THEREFORE ENTITLED AT ANY TIME TO CONVERT THEM INTO CASH UPON
PRESENTATION AND SURRENDER "AS THOUGH NO BENEFICIARY HAD BEEN NAMED IN
THE REGISTRATION."  31 CFR SEC. 315.65.  ASIDE FROM POSSIBLE
CONSEQUENCES OF THE WIFE'S CONSENT OR RATIFICATION, AS LONG AS ANGEL
YIATCHOS WAS ALIVE THE BONDS WERE COMMUNITY PROPERTY, AND COULD BE USED
BY HIM - THE MANAGER OF THE COMMUNITY AND THE REGISTERED OWNER OF THE
BONDS - FOR COMMUNITY PURPOSES JUST AS THE ASSETS USED TO PURCHASE THEM
COULD HAVE BEEN SO USED.  THUS, THE HOLDING OF THE COURT BELOW, WHICH
REQUIRES THAT THE BONDS BE DISPOSED OF BY WILL OR BY STATE INTESTACY
PROVISIONS, IS NOTHING MORE THAN A STATE PROHIBITION AGAINST UTILIZING
SAVINGS BONDS TO TRANSMIT PROPERTY AT DEATH, AND IS, FOR REASONS STATED
ABOVE, FORBIDDEN BY FREE V. BLAND, SUPRA. 

WE ADD BUT ONE CAVEAT TO OUR HOLDING THAT PETITIONER IS ENTITLED TO
AT LEAST ONE-HALF THE BONDS.  THE BONDS, IT WOULD APPEAR, ARE LESS THAN
ONE-HALF THE GROSS ESTATE, BUT THE RECORD DOES NOT COMPARE THE VALUE OF
THE BONDS WITH ONE-HALF THE NET ESTATE AFTER PAYMENT OF DEBTS.  IT IS
OUR UNDERSTANDING THAT THE DECEASED'S INTEREST IN THE COMMUNITY
PROPERTY IS CHARGEABLE WITH HIS SEPARATE DEBTS AND WITH ONE-HALF THE
COMMUNITY DEBTS.  RYAN V. FERGUSON, 3 WASH. 356, 28 P. 910.  IT WOULD
NOT CONTRAVENE FEDERAL LAW AS EXPRESSED IN THE APPLICABLE REGULATIONS
TO REQUIRE THE BONDS TO BEAR THE SAME SHARE OF THE DEBTS THAT THEY
WOULD HAVE BORNE IF THEY HAD BEEN PASSED TO PETITIONER AS A SPECIFIC
LEGACY UNDER THE WILL RATHER THAN BY THE SURVIVORSHIP PROVISIONS OF THE
BONDS. 

THE JUDGMENT OF THE WASHINGTON COURT IS REVERSED INSOFAR AS IT
RELATES TO ONE-HALF OF THE BONDS, SUBJECT TO THE ABOVE REMARKS
CONCERNING THE PORTION OF THE DEBTS WHICH MAY BE ALLOCABLE THERETO.  AS
TO THE OTHER HALF THE JUDGMENT IS VACATED AND THE CASE REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE QUESTION TO BE DETERMINED UNDER FREE V. BLAND, 369 U.S. 663
(1962), IS WHETHER OR NOT THE PURCHASE OF THE BONDS BY THE DECEASED
OPERATED TO DEPRIVE HIS SURVIVING WIFE OF HER ONE-HALF UNDIVIDED
INTEREST IN THE COMMUNITY PROPERTY OF THE SPOUSES.  IF THAT PURCHASE
OPERATED TO DEPRIVE HER OF HER ONE-HALF INTEREST IN THE COMMUNITY
PROPERTY, IT IS TANTAMOUNT TO A CONSTRUCTIVE FRAUD UPON THE COMMUNITY
PROPERTY, AND UNDER FREE V. BLAND, SUPRA, RELIEF MUST BE GRANTED TO THE
EXTENT OF MAKING WHOLE THE SURVIVING WIFE'S UNDIVIDED INTEREST.    IT
THEREFORE APPEARS TO ME THAT THE PROPER ORDER IN THIS CASE WOULD BE TO
VACATE THE JUDGMENT AND REMAND THE CASE FOR CONSIDERATION OF THE
FOLLOWING MATTERS, ALL OF WHICH INVOLVE AN INTERPRETATION OF WASHINGTON
LAW: 

(1)  WAS THE PURCHASE OF THE BONDS AND THE DESIGNATION OF PETITIONER
AS BENEFICIARY AN ACT WITHIN THE DECEASED HUSBAND'S STATUTORY (WASH.
REV. CODE SEC. 26.16.030) MANAGEMENT POWERS, OR DID THE SURVIVING
SPOUSE CONSENT TO, OR SUBSEQUENTLY RATIFY, THE TRANSACTION?  IF EITHER
QUESTION IS ANSWERED IN THE AFFIRMATIVE, THE BONDS MUST BE DELIVERED TO
THE PETITIONER.  IF BOTH QUESTIONS ARE ANSWERED IN THE NEGATIVE, THEN: 
(2)  WHAT IS THE AMOUNT OF THE DEBTS, BOTH COMMUNITY AND SEPARATE,
CHARGEABLE TO THE ESTATE?  AND:

(3)  IS THERE SUFFICIENT PROPERTY AFTER THE PAYMENT OF THESE DEBTS
FOR THE SURVIVING WIFE TO RECEIVE HER ONE-HALF UNDIVIDED INTEREST IN
THE COMMUNITY ESTATE WITHOUT HAVING TO RESORT TO THE BONDS?  IF THIS
QUESTION IS ANSWERED IN THE AFFIRMATIVE, THE BONDS MUST BE DELIVERED TO
THE PETITIONER AND THE SURVIVING WIFE MUST RECEIVE HER ONE-HALF
UNDIVIDED INTEREST IN THE COMMUNITY PROPERTY FROM THAT REMAINING.  IF
THERE IS NOT SUFFICIENT PROPERTY IN THE ESTATE TO SATISFY THE SURVIVING
WIFE'S UNDIVIDED ONE-HALF INTEREST FROM THAT REMAINDER, THEN THE BONDS
MUST BE SUBJECTED TO THIS DEFICIT, AFTER WHICH THE BALANCE OF THE
BONDS, IF ANY, WOULD GO TO THE PETITIONER. 

THE OPINION OF THE COURT CONJECTURES THAT IT MIGHT BE THE LAW OF
WASHINGTON THAT A SURVIVING SPOUSE HAS A ONE-HALF INTEREST IN EACH ITEM
OF THE COMMUNITY ESTATE AND THAT IF THIS BE SO, THEN ALLOWING ALL OF
THE BONDS TO PASS TO THE DESIGNATED BENEFICIARY WOULD WORK AN
INVOLUNTARY CONVERSION OF THE SPOUSE'S ONE-HALF INTEREST IN THOSE
BONDS.  THE PROPOSITION THAT A SPOUSE HAS SUCH AN INTEREST IN EACH ITEM
IS OF DOUBTFUL VALIDITY AND THERE IS NO WASHINGTON AUTHORITY TO SUPPORT
IT. FURTHER, THERE IS, AT THE VERY LEAST, A QUESTION OF WHETHER SUCH
STATE LAW, EVEN IF IT DID EXIST, SHOULD BE ALLOWED TO OVERRIDE THE
BENEFICIARY DESIGNATIONS OF THE FEDERAL BONDS.  THE COURT IS PASSING
UPON THIS IMPORTANT ISSUE EVEN THOUGH IT HAS NOT BEEN CONSIDERED BY THE
PARTIES IN EITHER THEIR BRIEFS OR ORAL ARGUMENT. 
..END :








ITALIA SOCIETA PER AZIONI DI NAVIGAZIONE V. OREGON STEVEDORING CO. 376
U.S. 315 


NO. 82.  ARGUED JANUARY 8, 1964.  - DECIDED MARCH 9, 1964.  - 310 F.2D
481, REVERSED AND REMANDED. 


1.  SHIPOWNER MAY RECOVER INDEMNITY FROM A STEVEDORE FOR BREACH OF
IMPLIED WARRANTY OF WORKMANLIKE SERVICE WHERE THE STEVEDORE, WITHOUT
NEGLIGENCE, HAS SUPPLIED DEFECTIVE EQUIPMENT WHICH INJURES ITS OWN
EMPLOYEE WHO HAS RECOVERED A JUDGMENT AGAINST THE SHIPOWNER ON THE
BASIS OF UNSEAWORTHINESS.  PP. 315-325. 

2.  THE EFFECT OF A CONTRACT PROVISION MAKING STEVEDORE RESPONSIBLE
FOR INJURIES CAUSED BY ITS NEGLIGENCE ON THE EXISTENCE OF THE IMPLIED
WARRANTY, NOT BRIEFED OR ARGUED HERE, IS TO BE DETERMINED BY THE COURT
OF APPEALS ON REMAND.  P. 325. 

ITALIA SOCIETA PER AZIONI DI NAVIGAZIONE V. OREGON STEVEDORING CO.,
INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BY A SHIPOWNER, ITALIA SOCIETA PER AZIONI DI
NAVIGAZIONE (ITALIA), AGAINST A CONTRACTING STEVEDORE COMPANY, OREGON
STEVEDORING COMPANY (OREGON), TO RECOVER INDEMNITY FOR BREACH OF THE
STEVEDORE'S IMPLIED WARRANTY OF WORKMANLIKE SERVICE.  THE ISSUE
PRESENTED IS WHETHER THE WARRANTY IS BREACHED WHERE THE STEVEDORE HAS
NONNEGLIGENTLY SUPPLIED DEFECTIVE EQUIPMENT WHICH INJURES ONE OF ITS
EMPLOYEES DURING THE COURSE OF STEVEDORING OPERATIONS. 

               I. 

THE PETITIONER, ITALIA, IS THE OWNER OF THE VESSEL M.S. ANTONIO
PACINOTTI.  THE RESPONDENT, OREGON, AGREED TO RENDER STEVEDORING
SERVICES FOR ITALIA IN ALL PORTS ALONG THE COLUMBIA AND WILLAMETTE
RIVERS.  UNDER THE CONTRACT BETWEEN THE COMPANIES OREGON WAS TO HAVE
EXCLUSIVE RIGHTS TO AND CONTROL OVER THE LOADING AND DISCHARGE OF
CARGOES ABOARD ITALIA'S VESSELS (FN1) AND WAS TO "FURNISH ALL NECESSARY
LABOR AND SUPERVISION AND ALL ORDINARY GEAR FOR THE PERFORMANCE OF
THESE SERVICES  ...  , INCLUDING WINCH DRIVERS AND USUAL APPLIANCES
USED FOR STEVEDORING."  ITALIA WAS TO FURNISH AND MAINTAIN IN SAFE AND
EFFICIENT WORKING CONDITION SUITABLE BOOMS, WINCHES, BLOCKS, STEAM,
LIGHTS AND SO FORTH.  THE AGREEMENT PROVIDED THAT THE STEVEDORING
COMPANY WOULD BE RESPONSIBLE FOR DAMAGE TO THE SHIP, CARGO, AND FOR
INJURY OR DEATH OF ANY PERSON CAUSED BY ITS NEGLIGENCE, AND THAT THE
STEAMSHIP COMPANY WOULD BE RESPONSIBLE FOR THE INJURY OR DEATH OF ANY
PERSON OR DAMAGE TO PROPERTY ARISING FROM ITS NEGLIGENCE OR BY REASON
OF FAILURE OF THE SHIP'S GEAR AND EQUIPMENT.  (FN2) 

DURING THE COURSE OF OREGON'S STEVEDORING OPERATIONS IN PORTLAND, ONE
OF ITS LONGSHOREMAN EMPLOYEES, GRIFFITH, WAS INJURED ON THE M.S.
ANTONIO PACINOTTI WHEN A TENT ROPE SNAPPED.  THE ROPE, PERMANENTLY
ATTACHED TO A HATCH TENT USED TO PROTECT CARGO FROM RAIN, WAS FURNISHED
BY OREGON PURSUANT TO ITS OBLIGATION TO SUPPLY ORDINARY GEAR NECESSARY
FOR THE PERFORMANCE OF STEVEDORING SERVICES.  THE INJURED LONGSHOREMAN
SUED THE SHIPOWNER IN A STATE COURT FOR NEGLIGENCE AND UNSEAWORTHINESS
(FN3) AND RECOVERED A JUDGMENT AGAINST ITALIA UPON A GENERAL VERDICT. 
ITALIA SATISFIED THE JUDGMENT AND THEREUPON BROUGHT THIS SUIT IN A
FEDERAL DISTRICT COURT FOR INDEMNITY FROM OREGON.  THE DISTRICT COURT
FOUND THAT THE BASIS FOR GRIFFITH'S RECOVERY WAS NOT NEGLIGENCE ON THE
PART OF THE SHIPOWNER BUT A CONDITION OF UNSEAWORTHINESS CREATED BY THE
ROPE SUPPLIED BY OREGON, WHICH WAS FOUND DEFECTIVE AND UNFIT FOR ITS
INTENDED USE.  HOWEVER, THE DISTRICT COURT DISALLOWED INDEMNITY BECAUSE
ITALIA HAD FAILED TO PROVE NEGLIGENCE ON THE PART OF THE STEVEDORE
COMPANY, SINCE THE DEFECTIVE CONDITION OF THE ROPE WAS NOT APPARENT. 
THAT COURT VIEWED THE CONTRACTUAL PROVISION RENDERING OREGON LIABLE FOR
INJURIES CAUSED BY ITS NEGLIGENCE AS AN EXPRESS DISCLAIMER AGAINST AN
IMPLIED WARRANTY OF WORKMANLIKE SERVICE.  THE COURT OF APPEALS FOR THE
NINTH CIRCUIT WITH ONE JUDGE DISSENTING, AFFIRMED, BUT SOLELY ON THE
GROUND THAT A STEVEDORE'S IMPLIED WARRANTY OF WORKMANLIKE SERVICE IS
NOT BREACHED IN THE ABSENCE OF A SHOWING OF NEGLIGENCE IN SUPPLYING
DEFECTIVE EQUIPMENT.  310 F.2D 481.  BECAUSE OF A CONFLICT BETWEEN THIS
DECISION AND THE DECISION OF THE COURT OF APPEALS FOR THE SECOND
CIRCUIT IN BOOTH S.S. CO. V. MEIER & OELHAF CO., 262 F.2D 310, AND THE
IMPORTANCE OF THE QUESTION INVOLVED, WE GRANTED CERTIORARI.  372 U.S.
963.  FOR THE REASONS STATED BELOW, WE HAVE DETERMINED THAT THE ABSENCE
OF NEGLIGENCE ON THE PART OF A STEVEDORE WHO FURNISHES DEFECTIVE
EQUIPMENT IS NOT FATAL TO THE SHIPOWNER'S CLAIM OF INDEMNITY BASED ON
THE STEVEDORE'S IMPLIED WARRANTY OF WORKMANLIKE SERVICE. 

IN RYAN V. PAN-ATLANTIC CORP., 350 U.S. 124, THE LANDMARK DECISION IN
THIS AREA, IT WAS ESTABLISHED THAT A STEVEDORING CONTRACTOR WHO ENTERS
INTO A SERVICE AGREEMENT WITH A SHIPOWNER IS LIABLE TO INDEMNIFY THE
OWNER FOR DAMAGES SUSTAINED AS A RESULT OF THE STEVEDORE'S IMPROPER
STOWAGE OF CARGO.  ALTHOUGH THE AGREEMENT BETWEEN THE SHIPOWNER AND
STEVEDORE WAS SILENT ON THE SUBJECT OF WARRANTIES AND STANDARDS OF
PERFORMANCE, THE COURT FOUND THAT THE ESSENCE OF THE STEVEDORE'S
CONTRACT IS TO PERFORM "PROPERLY AND SAFELY."  "COMPETENCY AND SAFETY
...  ARE INESCAPABLE ELEMENTS OF THE SERVICE UNDERTAKEN."  THIS
UNDERTAKING IS THE STEVEDORE'S "WARRANTY OF WORKMANLIKE SERVICE THAT IS
COMPARABLE TO A MANUFACTURER'S WARRANTY OF THE SOUNDNESS OF ITS
MANUFACTURED PRODUCT," 350 U.S., AT 133-134, A WARRANTY GENERALLY
DEEMED TO COVER DEFECTS NOT ATTRIBUTABLE TO A MANUFACTURER'S
NEGLIGENCE.  (FN4)  SEE ALSO CRUMADY V. THE J.H. FISSER, 358 U.S. 423,
428-429. 

THE COURT FURTHER DISTINGUISHED IN RYAN BETWEEN CONTRACT AND TORT
ACTIONS, STATING THAT THE SHIPOWNER'S SUIT FOR INDEMNIFICATION WAS NOT
CHANGED "FROM ONE FOR A BREACH OF CONTRACT TO ONE FOR A TORT SIMPLY
BECAUSE RECOVERY MAY TURN UPON THE STANDARD OF THE PERFORMANCE OF
PETITIONER'S STEVEDORING SERVICE," 350 U.S., AT 134, AND POINTEDLY
DECLINED TO CHARACTERIZE THE STEVEDORE'S CONDUCT AS NEGLIGENT,
NOTWITHSTANDING THAT DISCUSSION IN THE OPINION BELOW CENTERED ON
CONCEPTS OF ACTIVE AND PASSIVE NEGLIGENCE ON THE PART OF THE SHIPOWNER
AND STEVEDORE.  (FN5)  ALTHOUGH IN RYAN THE STEVEDORE WAS NEGLIGENT, HE
WAS NOT FOUND LIABLE FOR NEGLIGENCE AS SUCH BUT BECAUSE HE FAILED TO
PERFORM SAFELY, A BASIS FOR LIABILITY INCLUDING NEGLIGENT AND
NONNEGLIGENT CONDUCT ALIKE. 

SUBSEQUENT DECISIONS HAVE MADE CLEAR THAT THE STEVEDORE'S OBLIGATION
TO PERFORM WITH REASONABLE SAFETY EXTENDS NOT ONLY TO THE STOWAGE AND
HANDLING OF CARGO BUT ALSO TO THE USE OF EQUIPMENT INCIDENTAL THERETO,
WEYERHAEUSER S.S. CO. V. NACIREMA OPERATING CO., 355 U.S. 563,
INCLUDING DEFECTIVE EQUIPMENT SUPPLIED BY THE SHIPOWNER, CRUMADY V. THE
J.H. FISSER, SUPRA, CF. WATERMAN S.S. CORP. V. DUGAN & MCNAMARA, INC.,
364 U.S. 421, AND THAT THE SHIPOWNER'S NEGLIGENCE IS NOT FATAL TO
RECOVERY AGAINST THE STEVEDORE.  "IN THE AREA OF CONTRACTUAL INDEMNITY
AN APPLICATION OF THE THEORIES OF 'ACTIVE' OR 'PASSIVE' AS WELL AS
'PRIMARY' OR 'SECONDARY' NEGLIGENCE IN INAPPROPRIATE."  WEYERHAEUSER,
SUPRA, AT 569.  AND LAST TERM IN REED V. THE YAKA, 373 U.S. 410, WE
ASSUMED, WITHOUT DECIDING, THAT A SHIPOWNER COULD RECOVER OVER FROM A
STEVEDORE FOR BREACH OF WARRANTY EVEN THOUGH THE INJURY-CAUSING DEFECT
WAS LATENT AND THE STEVEDORE WITHOUT FAULT.  WE THINK THAT THE
STEVEDORE'S IMPLIED WARRANTY OF WORKMANLIKE PERFORMANCE APPLIED IN
THESE CASES IS SUFFICIENTLY BROAD TO INCLUDE THE RESPONDENT'S FAILURE
TO FURNISH SAFE EQUIPMENT PURSUANT TO ITS CONTRACT WITH THE SHIPOWNER,
NOTWITHSTANDING THAT THE STEVEDORE WOULD NOT BE LIABLE IN TORT FOR ITS
CONDUCT.  (FN6) 

OREGON ARGUES, HOWEVER, THAT THE IMPOSITION IN RYAN OF LIABILITY ON
THE STEVEDORE IN WARRANTY RATHER THAN TORT HAS NECESSITATED BY THE
COURT'S PREVIOUS DECISION IN HALCYON LINES V. HAENN SHIP CEILING &
REFITTING CORP., 342 U.S. 282, WHICH HELD THAT MARITIME PRINCIPLES OF
CONTRIBUTION BETWEEN JOINT TORTFEASORS PREVAILING IN COLLISION CASES
WERE NOT APPLICABLE IN SUITS FOR CONTRIBUTION BY A SHIPOWNER AGAINST
STEVEDORE COMPANIES.  IT FURTHER URGES THAT NEGLIGENCE ON THE PART OF
THE STEVEDORE COMPANY OR ITS EMPLOYEES WAS PRESENT IN ALL THE ABOVE
CASES, AND THAT THE COURT CHARACTERIZED THE WARRANTY IN POST-RYAN
DECISIONS AS ONE ENTAILING AN OBLIGATION TO PERFORM WITH REASONABLE
SAFETY AND REASONABLE COMPETENCY.  HOWEVER, THE STEVEDORE'S OBLIGATION
ESTABLISHED IN RYAN WAS NOT MERELY AN ESCAPE FROM THE NO-RECOVERY
CONSEQUENCES OF HALCYON, AS IT EVIDENCED BY THE FACT THAT RECOVERY OF
CONTRIBUTION BETWEEN JOINT TORTFEASORS AND RECOVERY OF INDEMNITY FOR
BREACH OF WARRANTY PROCEED ON TWO WHOLLY DISTINCT THEORIES AND PRODUCE
DISPARATE RESULTS.  (FN7)  SEE AMERICAN STEVEDORES V. PORELLO, 330 U.S.
446.  RECOVERY IN CONTRIBUTION IS IMPOSED BY LAW AND IS MEASURED BY THE
RELATIVE FAULT OF THE JOINT TORTFEASORS OR SHARED EQUALLY BETWEEN THEM,
THE NORTH STAR, 106 U.S. 17; THE MAX MORRIS, 137 U.S. 1; HALCYON LINES
V. HAENN SHIP CEILING & REFITTING CORP., SUPRA; WHILE RECOVERY IN
INDEMNITY FOR BREACH OF THE STEVEDORE'S WARRANTY IS BASED UPON AN
AGREEMENT BETWEEN THE SHIPOWNER AND STEVEDORE AND IS NOT NECESSARILY
AFFECTED OR DEFEATED BY THE SHIPOWNER'S NEGLIGENCE, WHETHER ACTIVE OR
PASSIVE, PRIMARY OR SECONDARY.  WEYERHAEUSER S.S. CO. V. NACIREMA
OPERATING CO., SUPRA.  AND THE DESCRIPTION OF THE STEVEDORE'S
OBLIGATION AS ONE OF PERFORMANCE WITH REASONABLE SAFETY IS NOT A
REFERENCE TO THE REASONABLE-MAN TEST PERTAINING TO NEGLIGENCE, BUT A
DELINEATION OF THE SCOPE OF THE STEVEDORE'S IMPLIED CONTRACTUAL
DUTIES.  THE IMPLIED WARRANTY TO SUPPLY REASONABLY SAFE EQUIPMENT MAY
BE SATISFIED WITH LESS THAN ABSOLUTELY PERFECT EQUIPMENT; (FN8)
HOWEVER, THE ISSUE OF BREACH OF THE UNDERTAKING DOES NOT TURN ON
WHETHER THE CONTRACTOR KNEW OR SHOULD HAVE KNOWN THAT HIS EQUIPMENT WAS
SAFE, BUT ON WHETHER THE EQUIPMENT WAS IN FACT SAFE AND FIT FOR ITS
INTENDED USE.  AS THE COURT HAS APTLY SAID WITH RESPECT TO THE
SHIPOWNER'S DUTY TO FURNISH A SEAWORTHY VESSEL, A DUTY WHICH IS IMPOSED
BY LAW: 

"WHAT HAS BEEN SAID IS NOT TO SUGGEST THAT THE OWNER IS OBLIGATED TO
FURNISH AN ACCIDENT-FREE SHIP.  THE DUTY IS ABSOLUTE, BUT IT IS A DUTY
ONLY TO FURNISH A VESSEL AND APPURTENANCES REASONABLY FIT FOR THEIR
INTENDED USE.  THE STANDARD IS NOT PERFECTION, BUT REASONABLE FITNESS;
NOT A SHIP THAT WILL WEATHER EVERY CONCEIVABLE STORM OR WITHSTAND EVERY
IMAGINABLE PERIL OF THE SEA, BUT A VESSEL REASONABLY SUITABLE FOR HER
INTENDED SERVICE."  MITCHELL V. TRAWLER RACER, INC., 362 U.S. 539,
550. 

WE DO NOT BELIEVE A ROPE DESIGNED TO WITHSTAND THREE TO FIVE TIMES
THE PRESSURE EXERTED ON IT WHEN IT GAVE WAY SATISFIES THE STANDARD OF
REASONABLE SAFETY.  AND THE DISTRICT COURT SPECIFICALLY FOUND THAT THE
ROPE WAS UNFIT FOR THE PURPOSE FOR WHICH IT WAS INTENDED AND THAT THE
INJURY TO GRIFFITY WAS THE NATURAL CONSEQUENCE OF ITS BREAKAGE. 

OREGON, A SPECIALIST IN STEVEDORING, WAS HIRED TO LOAD AND UNLOAD THE
PETITIONER'S VESSELS AND TO SUPPLY THE ORDINARY EQUIPMENT NECESSARY FOR
THESE OPERATIONS.  THE DEFECTIVE ROPE WHICH CREATED THE CONDITION OF
UNSEAWORTHINESS ON THE VESSEL AND RENDERED THE SHIPOWNER LIABLE TO THE
STEVEDORE'S EMPLOYEE WAS SUPPLIED BY OREGON, AND THE STEVEDORING
OPERATIONS IN THE COURSE OF WHICH THE LONGSHOREMAN WAS INJURED WERE IN
THE HANDS OF THE EMPLOYEES OF OREGON.  NOT ONLY DID THE AGREEMENT
BETWEEN THE SHIPOWNER PLACE CONTROL OF THE OPERATIONS ON THE STEVEDORE
COMPANY, BUT OREGON WAS ALSO CHARGED UNDER THE CONTRACT WITH THE
SUPERVISION OF THESE OPERATIONS.  ALTHOUGH NONE OF THESE FACTORS AFFECT
THE SHIPOWNER'S PRIMARY LIABILITY TO THE INJURED EMPLOYEE OF OREGON,
SINCE ITS DUTY TO SUPPLY A SEAWORTHY VESSEL IS STRICT AND NONDELEGABLE,
AND EXTENDS TO THOSE WHO PERFORM THE UNLOADING AND LOADING PORTION OF
THE SHIP'S WORK, SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85, CF. POPE &
TALBOT V. HAWN, 346 U.S. 406, THEY DEMONSTRATE THAT OREGON WAS IN FAR
BETTER POSITION THAN THE SHIPOWNER TO AVOID THE ACCIDENT.  THE
SHIPOWNER DEFERS TO THE QUALIFICATION OF THE STEVEDORING CONTRACTOR IN
THE SELECTION AND USE OF EQUIPMENT AND RELIES ON THE COMPETENCY OF THE
STEVEDORE COMPANY.  (FN9) 

TRUE THE DEFECT HERE WAS LATENT AND THE STEVEDORE FREE OF NEGLIGENT
CONDUCT IN SUPPLYING THE ROPE.   BUT LATENT DEFECTS MAY BE ATTRIBUTABLE
TO IMPROPER MANUFACTURE OR FATIGUE DUE TO LONG USE AND MAY BE
DISCOVERABLE BY SUBJECTING THE EQUIPMENT TO APPROPRIATE TESTS.  FURTHER
THE STEVEDORE COMPANY WHICH BRINGS ITS GEAR ON BOARD KNOWS THE HISTORY
OF ITS PRIOR USE AND IS IN A POSITION TO ESTABLISH RETIREMENT SCHEDULES
AND PERIODIC RETESTS SO AS TO DISCOVER DEFECTS AND THEREBY INSURE
SAFETY OF OPERATIONS.  SEE BOOTH S.S. CO. V. MEIER & OELHAF CO., SUPRA.
IT IS CONSIDERATIONS SUCH AS THESE THAT UNDERLIE A MANUFACTURER'S OR
SELLER'S OBLIGATION TO SUPPLY PRODUCTS FREE OF DEFECTS AND A
SHIPOWNER'S OBLIGATION TO FURNISH A SEAWORTHY VESSEL.  (FN10)  THEY
ALSO SERVE TO RENDER A TORT STANDARD OF NEGLIGENCE INAPPLICABLE TO THE
STEVEDORE'S LIABILITY UNDER ITS WARRANTY OF WORKMANLIKE SERVICE.  FOR
THEY ILLUSTRATE THAT LIABILITY SHOULD FALL UPON THE PARTY BEST SITUATED
TO ADOPT PREVENTIVE MEASURES AND THEREBY TO REDUCE THE LIKELIHOOD OF
INJURY.  WHERE, AS HERE, INJURY-PRODUCING AND DEFECTIVE EQUIPMENT IS
UNDER THE SUPERVISION AND CONTROL OF THE STEVEDORE, THE SHIPOWNER IS
POWERLESS TO MINIMUZE THE RISK; THE STEVEDORE IS NOT. 

WHERE THE SHIPOWNER IS LIABLE TO THE EMPLOYEES OF THE STEVEDORE
COMPANY AS WELL AS ITS EMPLOYEES FOR FAILING TO SUPPLY A VESSEL AND
EQUIPMENT FREE OF DEFECTS, REGARDLESS OF NEGLIGENCE, WE DO NOT THINK IT
UNFAIR OR UNWISE TO REQUIRE THE STEVEDORE TO INDEMNIFY THE SHIPOWNER
FOR DAMAGES SUSTAINED AS A RESULT OF INJURY-PRODUCING DEFECTIVE
EQUIPMENT SUPPLIED BY A STEVEDORE IN FURTHERANCE OF ITS CONTRACTUAL
OBLIGATIONS.  SEE ALASKA S.S.  CO. V. PETTERSON, 347 U.S. 396, 401
(DISSENTING OPINION).    BOTH SIDES PRESS UPON US THEIR INTERPRETATION
OF THE LAW IN REGARD TO THE SCOPE OF WARRANTIES IN NONSALES CONTRACTS,
SUCH AS CONTRACTS OF BAILMENT AND SERVICE AGREEMENTS.  BUT WE DEAL HERE
WITH A SUIT FOR INDEMNIFICATION BASED UPON A MARITIME CONTRACT,
GOVERNED BY FEDERAL LAW, AMERICAN STEVEDORES, INC., V. PORELLO, SUPRA,
IN AN AREA WHERE RATHER SPECIAL RULES GOVERNING THE OBLIGATIONS AND
LIABILITY OF SHIPOWNERS PREVAIL, RULES THAT ARE DESIGNED TO MINIMIZE
THE HAZARDS ENCOUNTERED BY SEAMEN, TO COMPENSATE SEAMEN FOR THE
ACCIDENTS THAT INEVITABLY OCCUR, AND TO MINIMIZE THE LIKELIHOOD OF SUCH
ACCIDENTS.  BY PLACING THE BURDEN ULTIMATELY ON THE COMPANY WHOSE
DEFAULT CAUSED THE INJURY, REED V. THE YAKA, 373 U.S. 410, 414, WE
THINK OUR DECISION TODAY IS IN FURTHERANCE OF THESE OBJECTIVES. 

               II. 

THE DISTRICT COURT DECLINED TO PASS ON THE ISSUE DECIDED ABOVE SINCE
IT FOUND THAT THE IMPLIED WARRANTY OF WORKMANLIKE PERFORMANCE WAS
NEGATED BY THE PROVISION IN THE AGREEMENT RENDERING OREGON LIABLE FOR
PERSONAL INJURIES RESULTING FROM ITS NEGLIGENCE.  THE COURT OF APPEALS
DECLINED TO PASS ON THE LATTER QUESTION, ITS FINDING THAT THE WARRANTY
DID NOT EXTEND TO NONNEGLIGENT CONDUCT RENDERING A RESOLUTION OF IT
UNNECESSARY.  THE EFFECT OF THE EXPRESS ASSUMPTION OF LIABILITY FOR
NEGLIGENCE PROVISION IN THE CONTRACT ON THE EXISTENCE OF THE IMPLIED
WARRANTY HAS NOT BEEN BRIEFED OR ARGUED IN THIS COURT.  ACCORDINGLY,
THE ISSUE REMAINS FOR THE COURT OF APPEALS TO DECIDE.  THE JUDGMENT
BELOW IS REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE CONTRACT READS: 

"IT IS MUTUALLY AGREED BETWEEN THE PARTIES HERETO, THAT THE
STEVEDORING COMPANY WILL ACT AS STEVEDORES, AND THAT THEY WILL WITH ALL
POSSIBLE DISPATCH, LOAD AND/OR DISCHARGE ALL CARGOES OF VESSELS OWNED,
CHARTERED, CONTROLLED, OR MANAGED BY THE STEAMSHIP COMPANY AT ALL
COLUMBIA AND WILLAMETTE RIVER PORTS AS DIRECTED.  AND IT IS AGREED THAT
THE STEAMSHIP COMPANY WILL GRANT TO THE SAID STEVEDORING COMPANY THE
EXCLUSIVE RIGHTS OF HANDLING ALL SUCH CARGOES AS BEFORE MENTIONED UNDER
THE TERMS OF THIS AGREEMENT  ...  ." 

FN2  PARAGRAPH VIII OF THE AGREEMENT STATES: 

"THE STEVEDORING COMPANY WILL BE RESPONSIBLE FOR DAMAGE TO THE SHIP
AND ITS EQUIPMENT, AND FOR DAMAGE TO CARGO OR LOSS OF CARGO OVERSIDE,
AND FOR INJURY TO OR DEATH OF ANY PERSON CAUSED BY ITS NEGLIGENCE,
PROVIDED, HOWEVER, WHEN SUCH DAMAGE OCCURS TO THE SHIP OR ITS
EQUIPMENT, OR WHERE SUCH DAMAGE OR LOSS OCCURS TO CARGO, THE SHIP'S
OFFICERS OR OTHER AUTHORIZED REPRESENTATIVES CALL THE SAME TO THE
ATTENTION OF THE STEVEDORING COMPANY AT THE TIME OF THE OCCURRENCE. 
THE STEAMSHIP COMPANY SHALL BE RESPONSIBLE FOR INJURY TO OR DEATH OF
ANY PERSON OR FOR ANY DAMAGE TO OR LOSS OF PROPERTY ARISING THROUGH THE
NEGLIGENCE OF THE STEAMSHIP COMPANY OR ANY OF ITS AGENTS OR EMPLOYEES,
OR BY REASON OF THE FAILURE OF SHIP'S GEAR AND/OR EQUIPMENT." 

FN3  THE SHIPOWNER IS LIABLE FOR UNSEAWORTHINESS, REGARDLESS OF
NEGLIGENCE, WHENEVER THE SHIP OR ITS GEAR IS NOT REASONABLY FIT FOR THE
PURPOSE FOR WHICH IT WAS INTENDED AND THIS LIABILITY EXTENDS TO
LONGSHOREMEN AND OTHERS WHO WORK ABOARD THE VESSEL, INCLUDING THOSE IN
THE EMPLOY OF CONTRACTING STEVEDORE COMPANIES.  SEAS SHIPPING CO. V.
SIERACKI, 328 U.S. 85; POPE & TALBOT V. HAWN, 346 U.S. 406; MITCHELL V.
TRAWLER RACER, 362 U.S. 539.  IF THE OWNER ENGAGES OTHERS WHO SUPPLY
THE EQUIPMENT NECESSARY FOR STEVEDORING OPERATIONS, HE MUST STILL
ANSWER TO THE LONGSHOREMAN IF THE GEAR PROVES TO BE UNSEAWORTHY. 
ALASKA S.S. CO. V. PETTERSON, 347 U.S. 396.  THIS LIABILITY IS STRICT
AND NONDELEGABLE.  MITCHELL V. TRAWLER RACER, SUPRA; MAHNICH V.
SOUTHERN S.S. CO., 321 U.S. 96. 

FN4  GEORGE V. WILLMAN, 379 P.2D 103 (ALASKA); HESSLER V. HILLWOOD
MFG. CO., 302 F.2D 61 (C.A. 6TH CIR.); GREEN V. AMERICAN TOBACCO CO.,
154 SO.2D 169 (FLA.); HENNINGSEN V. BLOOMFIELD MOTORS, 32 N.J. 358, 161
A.2D 69.  SEE FRUMER AND FRIEDMAN, PRODUCTS LIABILITY, SEC. 10.01, AND
CASES CITED THEREIN; UNIFORM SALES ACT, UNIFORM LAWS ANNOTATED (1950
ED.), SEC. 15(1); UNIFORM COMMERCIAL CODE, UNIFORM LAWS ANNOTATED (1962
ED.), SEC. 2-315.  SEE GENERALLY WILLISTON, SALES, SEC. 237 (REV. ED.
1948 AND SUPP. 1963). 

FN5  PALAZZOLO V. PAN-ATLANTIC S.S. CORP., 211 F.2D 277 (C.A.2D
CIR.): 

"JUDGMENT ON THE ACTION FOR INDEMNITY OVER WAS AWARDED TO RYAN.  WE
THINK THIS ERROR.  THE TRIAL JUDGE FOUND PAN-ATLANTIC GUILTY OF
NEGLIGENCE IN THAT ITS 'CARGO OFFICER DID NOT PROPERLY PERFORM HIS
ADMITTED DUTY TO SUPERVISE THE SAFE AND CAREFUL LOADING OF THE
VESSEL.'  HOWEVER, RYAN CREATED THE HAZARDOUS CONDITION BY ITS IMPROPER
STOWAGE OF THE PULP PAPER ROLLS AT GEORGETOWN.  WE THINK THE IMPROPER
STOWAGE THE PRIMARY AND ACTIVE CAUSE OF THE ACCIDENT.  UNDER OUR
HOLDINGS  ...  INDEMNITY OVER IS RECOVERABLE WHERE, AS HERE, THE
EMPLOYER'S NEGLIGENCE WAS THE 'SOLE' 'ACTIVE' OR 'PRIMARY' CAUSE OF THE
ACCIDENT."  ID., AT 279. 

FN6  IF THE STEVEDORE IS LIABLE IN WARRANTY FOR SUPPLYING DEFECTIVE,
INJURY-PRODUCING EQUIPMENT, OF COURSE THE PROVISIONS OF THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 44 STAT. 1424, AS
AMENDED, 33 U.S.C. SECS. 901-950, ARE NO BAR TO RECOVERY.  THIS
QUESTION WAS FULLY RESOLVED IN RYAN V. PAN-ATLANTIC CORP., SUPRA, AT
130:  "THE ACT NOWHERE EXPRESSLY EXCLUDES OR LIMITS A SHIPOWNER'S
RIGHT, AS A THIRD PERSON, TO INSURE ITSELF AGAINST SUCH A LIABILITY
EITHER BY A BOND OF INDEMNITY, OR THE CONTRACTOR'S OWN AGREEMENT TO
SAVE THE SHIPOWNER HARMLESS."  SEE ALSO REED V. THE YAKA, SUPRA. 

FN7  SEE CRAWFORD V. POPE & TALBOT, INC., 206 F.2D 784 (C.A. 3D
CIR.); RICH V. UNITED STATES, 177 F.2D 688 (C.A.2D CIR.); MCFALL V.
COMPAGNIE MARITIME BELGE, S.A., 304 N.Y. 314, 107 N.E.2D 463.  SEE
GENERALLY WEINSTOCK, THE EMPLOYER'S DUTY TO INDEMNIFY SHIPOWNERS FOR
DAMAGES RECOVERED BY HARBOR WORKERS, 103 U. OF PA. L. REV. 321 (1954). 

FN8  CF. CALDEROLA V. CUNARD S.S. CO., 279 F.2D 475 (C.A.2D CIR.);
ORLANDO V. PRUDENTIAL S.S. CORP., 313 F.2D 822 (C.A.2D CIR.). 

FN9  SEAS SHIPPING CO. V. SIERACKI, SUPRA, AT 100.  HUGEV V.
DAMPSKISAKTIESELSKABET INT'L, 170 F. SUPP. 601, 609-611, AFF'D SUB NOM.
METROPOLITAN STEVEDORE CO. V. DAMPSKISAKTIESELSKABET INT'L, 274 F.2D
875 (C.A. 9TH CIR.), CERT. DENIED, 363 U.S. 803; REVEL V. AMERICAN
EXPORT LINES, 162 F. SUPP. 279, 286-287, AFF'D, 266 F.2D 82 (C.A. 4TH
CIR.). 

FN10  "THE FUNCTION OF THE DOCTRINE OF UNSEAWORTHINESS AND THE
COROLLARY DOCTRINE OF INDEMNIFICATION IS ALLOCATION OF THE LOSSES
CAUSED BY SHIPBOARD INJURIES TO THE ENTERPRISE, AND WITHIN THE SEVERAL
SEGMENTS OF THE ENTERPRISE, TO THE INSTITUTION OR INSTITUTIONS MOST
ABLE TO MINIMIZE THE PARTICULAR RISK INVOLVED."  DEGIOIA V. UNITED
STATES LINES, 304 F.2D 421, 426 (C.A.2D CIR.).  AND SEE FERRIGNO V.
OCEAN TRANSPORT LTD., 309 F.2D 445 (C.A.2D CIR.). 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

TODAY'S DECISION IS COMMANDED NEITHER BY RYAN STEVEDORING CO. V. PAN
ATLANTIC S.S. CORP., 350 U.S. 124, AND ITS PROGENY, NOR BY THE GENERAL
LAW OF WARRANTY.  IN HALCYON LINES V. HAENN SHIP CEILING & REFITTING
CORP., 342 U.S. 282, AND POPE & TALBOT, INC., V. HAWN, 346 U.S. 406, WE
HELD THAT THE SYSTEM OF COMPENSATION WHICH CONGRESS ESTABLISHED IN THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT (FN1) AS THE SOLE
LIABILITY OF A STEVEDORING COMPANY TO ITS EMPLOYEES PREVENTED A
SHIPOWNER FROM SHIFTING ALL OR PART OF HIS LIABILITY TO THE INJURED
LONGSHOREMAN ONTO THE STEVEDORING COMPANY, THE LONGSHOREMAN'S
EMPLOYER.  RYAN HELD NO MORE THAN THAT THE SHIPOWNER COULD RECOVER OVER
FROM THE STEVEDORING COMPANY, BY INVOKING THE LEGAL FORMULA OF
WARRANTY, WHERE THERE HAD BEEN A FINDING THAT THE STEVEDORING COMPANY
HAD BEEN NEGLIGENT.  (FN2)  IN THE PRESENT CASE THERE IS AN EXPRESS
FINDING THAT THE STEVEDORING COMPANY WAS NOT NEGLIGENT. 

MOREOVER, THE COURT HERE EXPANDS THE GENERAL LAW OF WARRANTY IN A WAY
WHICH I FEAR WILL CAUSE US REGRET IN FUTURE CASES IN OTHER AREAS OF THE
LAW AS WELL AS IN ADMIRALTY.  THERE IS NO BASIS IN PAST DECISIONS OF
THIS OR ANY OTHER COURT FOR THE HOLDING THAT ONE WHO UNDERTAKES TO DO A
JOB FOR ANOTHER AND IS NOT NEGLIGENT IN ANY RESPECT NEVERTHELESS HAS AN
INSURER'S ABSOLUTE LIABILITY TO INDEMNIFY FOR LIABILITY TO INJURED
WORKERS WHICH THE PARTY WHO HIRED THE JOB DONE MAY INCUR. 

FINALLY, THE CONTRACT UNDER WHICH THE PARTIES DEALT HERE PROVIDED
THAT THE STEVEDORING COMPANY WAS TO BE LIABLE FOR PERSONAL INJURIES
RESULTING FROM ITS NEGLIGENCE, WHILE THE SHIPOWNER WAS TO BE LIABLE FOR
INJURY CAUSED BY ITS OWN NEGLIGENCE "OR BY REASON OF THE FAILURE OF
SHIP'S GEAR AND/OR EQUIPMENT."  THIS PROVISION APPEARS ON ITS FACE TO
PUT THE BURDEN OF LIABILITY FOR UNSEAWORTHINESS, WHICH WAS THE BASIS OF
THE WORKER'S RECOVERY HERE, ON THE SHIPOWNER, LEAVING NEGLIGENCE AS THE
ONLY BASIS ON WHICH THE STEVEDORING COMPANY COULD BE HELD LIABLE.  THE
DISTRICT COURT SO HELD.  THE CONTRACT IS BEFORE US, AND WE ARE AS
COMPETENT TO INTERPRET IT NOW, WITHOUT REMANDING TO THE COURT OF
APPEALS, AS WE ARE TO INVOKE "POLICY" REASONS IN ORDER TO EXPAND RYAN
AND IMPOSE NEW FINANCIAL BURDENS ON STEVEDORING COMPANIES IN PLAIN
VIOLATION OF THE POLICY CONGRESS ADOPTED IN THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT. 

FOR THESE AND OTHER REASONS COGENTLY EXPRESSED IN JUDGE HAMLIN'S
OPINION FOR THE COURT OF APPEALS, 310 F.2D 481, I DISSENT. 

FN1  44 STAT. 1424, AS AMENDED, 33 U.S.C. SECS. 901-950. 

FN2  REED V. THE YAKA, 373 U.S. 410, HELD ONLY THAT A LONGSHOREMAN
COULD BRING A SUIT FOR UNSEAWORTHINESS AGAINST A STEVEDORING COMPANY
WHICH CHARTERED A SHIP AND WAS THE LONGSHOREMAN'S EMPLOYER.  IN THAT
CASE NO ISSUE AS TO AN IMPLIED WARRANTY OF WORKMANLIKE SERVICE AROSE
BECAUSE THE STEVEDORING COMPANY HAD AGREED IN ANY CASE TO HOLD THE
SHIPOWNER HARMLESS WITHOUT REGARD TO NEGLIGENCE, SEE 183 F. SUPP. 69,
70; FURTHERMORE, THE STEVEDORING COMPANY THERE WAS ALSO THE OPERATOR OF
THE VESSEL, AND THEREFORE IN THAT PARTICULAR CASE WAS PRIMARILY LIABLE
FOR UNSEAWORTHINESS. 
..END :

















UNITED STATES V. WARD BAKING CO. 376 U.S. 327 


NO. 101.  ARGUED FEBRUARY 18, 1964.  - DECIDED MARCH 9, 1964.  - VACATED
AND REMANDED. 


DISTRICT COURT MAY NOT ENTER A "CONSENT" JUDGMENT IN A CIVIL ANTITRUST
CASE WHERE THE GOVERNMENT, SEEKING RELIEF TO WHICH IT MAY BE ENTITLED
AFTER TRIAL, DOES NOT AGREE TO THE TERMS OF SUCH JUDGMENT.  PP. 327
335. 

UNITED STATES V. WARD BAKING CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF FLORIDA. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL RAISES THE QUESTION OF WHETHER AND UNDER WHAT
CIRCUMSTANCES A DISTRICT COURT MAY PROPERLY ENTER A "CONSENT" JUDGMENT
IN A CIVIL ANTITRUST SUIT WITHOUT THE CONSENT OF THE GOVERNMENT AND
WITHOUT TRIAL OF CERTAIN DISPUTED ISSUES. 

ON JULY 21, 1961, THE GOVERNMENT FILED A CIVIL COMPLAINT (FN1) IN THE
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA.  THE
COMPLAINT CHARGED THE FIVE APPELLEE BAKERY COMPANIES WITH VIOLATING
SEC. 1 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. SEC. 1,
(FN2) BY CONSPIRING: 

"(A)  TO ALLOCATE AMONG THEMSELVES THE BUSINESS OF SUPPLYING BAKERY
PRODUCTS (DEFINED AS BREAD AND ROLLS) TO THE UNITED STATES NAVAL
INSTALLATIONS IN THE JACKSONVILLE AREA; AND: 

"(B)  TO SUBMIT NONCOMPETITIVE, COLLUSIVE, AND RIGGED BIDS AND PRICE
QUOTATIONS FOR SUPPLYING BAKERY PRODUCTS TO UNITED STATES NAVAL
INSTALLATIONS IN THE JACKSONVILLE AREA." 

THE GOVERNMENT SOUGHT RELIEF, INCLUDING AN ADJUDICATION THAT THE
COMPANIES HAD VIOLATED THE ACT, AN INJUNCTION AGAINST ALLOCATING
BUSINESS OR FIXING PRICES IN THE SUPPLYING OF BAKERY PRODUCTS TO UNITED
STATES NAVAL INSTALLATIONS IN THE JACKSONVILLE AREA, AND "SUCH FURTHER,
GENERAL, AND DIFFERENT RELIEF AS THE NATURE OF THE CASE MAY REQUIRE AND
THE COURT MAY DEEM APPROPRIATE IN THE PREMISES." 

ON MAY 8, 1962, AFTER AN EXTENSIVE PERIOD OF SETTLEMENT NEGOTIATIONS,
THE BAKERY COMPANIES FILED WITH THE COURT A PROPOSED FORM OF JUDGMENT
WHICH WOULD HAVE ENJOINED THE COMPANIES FROM CONSPIRING TO: 

"(A)  SUBMIT NONCOMPETITIVE, COLLUSIVE OR RIGGED BIDS, OR QUOTATIONS
FOR SUPPLYING BAKERY PRODUCTS TO UNITED STATES NAVAL INSTALLATIONS IN
THE JACKSONVILLE AREA, OR: 

"(B)  ALLOCATE, DIVIDE OR ROTATE THE BUSINESS OF SUPPLYING BAKERY
PRODUCTS TO UNITED STATES NAVAL INSTALLATIONS IN THE JACKSONVILLE
AREA." 

THE PROPOSED JUDGMENT WOULD ALSO HAVE REQUIRED THE COMPANIES TO
INCLUDE SWORN STATEMENTS OF NONCOLLUSION IN EACH BID FOR BAKERY
PRODUCTS SUBMITTED TO ANY NAVAL INSTALLATIONS IN THE JACKSONVILLE AREA
FOR THE FOLLOWING THREE YEARS. 

THE DISTRICT COURT ORDERED THE GOVERNMENT TO SHOW CAUSE "WHY THE SAID
PROPOSED JUDGMENT  ... SHOULD NOT BE ENTERED."  THE GOVERNMENT REPLIED,
OBJECTING "TO CONFINING THE SCOPE OF THE INJUNCTION TO BIDS FOR
SUPPLYING BREAD AND ROLLS TO UNITED STATES NAVAL INSTALLATIONS IN THE
JACKSONVILLE AREA" AND "TO LIMITING THE REQUIREMENT  ...  THAT BIDS BE
ACCOMPANIED BY SWORN STATEMENTS OF NON-COLLUSION, TO A THREE YEAR
PERIOD." 

THE BAKERY COMPANIES THEN FILED AN AMENDED MOTION FOR ENTRY OF
CONSENT JUDGMENT, CONTAINING TWO SIGNIFICANT CHANGES IN THEIR ORIGINAL
PROPOSAL.  ITS SCOPE WAS BROADENED TO INCLUDE ALL BAKERY PRODUCTS, NOT
ONLY BREAD AND ROLLS, AND TO INCLUDE ALL SALES TO THE UNITED STATES,
NOT ONLY TO ITS NAVAL INSTALLATIONS IN THE JACKSONVILLE AREA. 
SUBSEQUENTLY, AT THE HEARING ON THE ORDER TO SHOW CAUSE, THE COMPANIES
AGREED TO INCREASE, FROM THREE TO FIVE YEARS, THE PERIOD DURING WHICH
THEY WERE TO SUBMIT SWORN STATEMENTS OF NONCOLLUSION. 

THE GOVERNMENT OPPOSED ENTRY OF THE AMENDED PROPOSED CONSENT JUDGMENT
ON THE GROUND THAT IT STILL OMITTED TWO NECESSARY ITEMS OF RELIEF: 

"(1)  A GENERAL INJUNCTION AGAINST CONSPIRING TO FIX THE PRICE OF
BAKERY PRODUCTS TO ANY THIRD PARTY OTHER THAN THE GOVERNMENT, AND (2)
AN INJUNCTION AGAINST URGING OR SUGGESTING TO ANY SELLER OF BAKERY
PRODUCTS THE QUOTATION OR CHARGING OF ANY PRICE OR OTHER TERMS OR
CONDITIONS OF SALE OF BAKERY PRODUCTS." 

DESPITE THESE OBJECTIONS, THE DISTRICT COURT ENTERED THE AMENDED
"CONSENT" JUDGMENT PROPOSED BY THE COMPANIES.  THE JUDGMENT RECITED
THAT IT WAS ENTERED "WITHOUT TRIAL OR ADJUDICATION OF ANY OF THE ISSUES
OF FACT OR LAW HEREIN AND BEFORE THE TAKING OF ANY TESTIMONY  ...  ." 
IN HIS OPINION ACCOMPANYING THE ENTRY OF JUDGMENT, THE DISTRICT JUDGE
SAID: 

"THE DEMAND OF THE PLAINTIFF AS TO THE INCLUSION OF THE TWO
CONTROVERSIAL PROVISIONS IN ITS TENDERED JUDGMENT DOES NOT HAVE A
REASONABLE BASIS UNDER THE CIRCUMSTANCES HERE PRESENT  ...  . BASED
UPON THIS COURT'S KNOWLEDGE OF THE FACTS INVOLVED IN CASE NO. 11677
CRIM-J AND THIS RECORD, THE PROPOSED JUDGMENT WHICH THE COURT IS
ENTERING PROVIDES ALL THE RELIEF TO WHICH THE PLAINTIFF WOULD BE
ENTITLED AFTER THE ENTRY OF A DECREE PRO CONFESSO AGAINST EACH
DEFENDANT AND AFTER A TRIAL ON THE ALLEGATIONS OF THIS COMPLAINT  ...
.  THE MERE FACT THAT A COURT HAS FOUND A DEFENDANT HAS COMMITTED AN
ACT IN VIOLATION OF A STATUTE DOES NOT JUSTIFY AN INJUNCTION BROADLY TO
OBEY THE STATUTE AND THUS SUBJECT THE DEFENDANT TO CONTEMPT PROCEEDINGS
IF HE SHALL AT ANY TIME IN THE FUTURE COMMIT SOME NEW VIOLATION UNLIKE
AND UNRELATED TO THAT WITH WHICH HE WAS ORIGINALLY CHARGED." 

THE GOVERNMENT, PURSUANT TO SEC. 2 OF THE EXPEDITING ACT, 32 STAT.
823, AS AMENDED, 15 U.S.C. SEC. 29, APPEAL DIRECTLY TO THIS COURT FROM
THE ENTRY OF JUDGMENT.  PROBABLE JURISDICTION WAS NOTED.  374 U.S.
803.  WE CONCLUDE THAT THE ADDITIONAL RELIEF SOUGHT BY THE GOVERNMENT
HAD A REASONABLE BASIS UNDER THE CIRCUMSTANCES AND THAT, CONSEQUENTLY,
THE DISTRICT COURT ERRED IN ENTERING THE "CONSENT" JUDGMENT WITHOUT THE
GOVERNMENT'S ACTUAL CONSENT. 

THIS COURT HAS RECOGNIZED THAT A "FULL EXPLORATION OF FACTS IS
USUALLY NECESSARY IN ORDER FOR THE DISTRICT COURT PROPERLY TO DRAW AN
ANTITRUST DECREE" SO AS "TO PREVENT FUTURE VIOLATIONS AND ERADICATE
EXISTING EVILS."  ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 22. 
AFTER A DISTRICT COURT HAS CONCLUDED THAT A CONSPIRACY IN RESTRAINT OF
TRADE EXISTS, IT: 

"HAS THE DUTY TO COMPEL ACTION BY THE CONSPIRATORS THAT WILL, SO FAR
AS PRACTICABLE, CURE THE ILL EFFECTS OF THE ILLEGAL CONDUCT, AND ASSURE
THE PUBLIC FREEDOM FROM ITS CONTINUANCE.  SUCH ACTION IS NOT LIMITED TO
PROHIBITION OF THE PROVEN MEANS BY WHICH THE EVIL WAS ACCOMPLISHED, BUT
MAY RANGE BROADLY THROUGH PRACTICES CONNECTED WITH ACTS ACTUALLY FOUND
TO BE ILLEGAL.  ACTS ENTIRELY PROPER WHEN VIEWED ALONE MAY BE
PROHIBITED.  THE CONSPIRATORS SHOULD, SO FAR AS PRACTICABLE, BE DENIED
FUTURE BENEFITS FROM THEIR FORBIDDEN CONDUCT  ...  .  RELIEF, TO BE
EFFECTIVE, MUST GO BEYOND THE NARROW LIMITS OF THE PROVEN VIOLATION." 
UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 88-89, 90. 

IT WOULD BE A RARE CASE WHERE ALL THE FACTS NECESSARY FOR A TRIAL
COURT TO DECIDE WHETHER A DISPUTED ITEM OF RELIEF WAS WARRANTED COULD
BE DETERMINED WITHOUT AN "OPPORTUNITY TO KNOW THE RECORD."  ID., AT
89.  THIS IS NOT SUCH A CASE. 

THE DISPUTE HERE CONCERNED WHETHER THE INJUNCTION SHOULD INCLUDE
PROHIBITIONS AGAINST (1) PRICE FIXING IN SALES TO PARTIES OTHER THAN
THE UNITED STATES GOVERNMENT, AND (2) "URGING OR SUGGESTING TO ANY
SELLER OF BAKERY PRODUCTS THE QUOTATION OR CHARGING OF ANY PRICE OR
OTHER TERMS OR CONDITIONS OF SALE OF BAKERY PRODUCTS." 

THE CONSPIRACY ALLEGED IN THE COMPLAINT WAS A PARTICULARLY FLAGRANT
ONE.  THE COMPLAINT CHARGED SPECIFICALLY THAT: 

"REPRESENTATIVES OF THE DEFENDANTS HELD MEETINGS AND CONFERRED BY
TELEPHONE FOR THE PURPOSE OF ALLOCATING AMONG THE DEFENDANTS THE
BUSINESS OF SUPPLYING BAKERY PRODUCTS TO UNITED STATES NAVAL
INSTALLATIONS IN THE JACKSONVILLE AREA.  THE BUSINESS WAS ALLOCATED IN
SUCH A MANNER AS TO PROVIDE EACH DEFENDANT WITH THE BUSINESS FOR A
DESIGNATED QUARTERLY PERIOD OF THE YEAR.  WHEN INVITATIONS TO BID WERE
RECEIVED FROM THE NAVAL INSTALLATIONS IN THE JACKSONVILLE AREA, SAID
REPRESENTATIVES WOULD AGAIN MEET AND CONFER AND THE REPRESENTATIVES OF
THE DEFENDANT DESIGNATED FOR THE PARTICULAR PERIOD WOULD DECLARE THE
PRICES WHICH THAT DEFENDANT INTENDED TO BID.  THE OTHERS WOULD AGREE TO
BID HIGHER PRICES AND THUS PROTECT THE BID OF THE DESIGNATED LOW
BIDDER." 

AS THIS COURT HAS SAID:  "ACTS IN DISREGARD OF LAW CALL FOR
REPRESSION BY STERNER MEASURES THAN WHERE THE STEPS COULD REASONABLY
HAVE BEEN THOUGHT PERMISSIBLE."  340 U.S., AT 89-90.  THE ACTS HERE
ALLEGED COULD NOT, UNDER ANY THEORY, HAVE BEEN THOUGHT PERMISSIBLE. 
"IT IS A SALUTARY PRINCIPLE THAT WHEN ONE HAS BEEN FOUND TO HAVE
COMMITTED ACTS IN VIOLATION OF A LAW HE MAY BE RESTRAINED FROM
COMMITTING OTHER RELATED UNLAWFUL ACTS."  LABOR BOARD V. EXPRESS PUB.
CO., 312 U.S. 426, 436. 

THE ALLEGEDLY ILLEGAL ACTS WERE SURROUNDED BY "CIRCUMSTANCES," UNITED
STATES V. UNITED STATES GYPSUM CO., SUPRA, AT 89, WHICH DID NOT
PRECLUDE THE POSSIBILITY THAT THE RELIEF SOUGHT BY THE GOVERNMENT WOULD
BE WARRANTED.  IN FACT, THE CIRCUMSTANCES TENDED TO SUPPORT THE VIEW
THAT THE PRACTICES WHICH THE GOVERNMENT SOUGHT TO ENJOIN WERE
"CONNECTED" WITH AND "RELATED" TO PRACTICES WHICH THE COMPANIES MAY IN
THE PAST HAVE FOLLOWED.  THE GOVERNMENT INFORMED THE DISTRICT COURT
THAT "ON JUNE 27, 1962, A FEDERAL GRAND JURY IN PHILADELPHIA INDICTED
THE DEFENDANT WARD BAKING COMPANY ON A CHARGE OF CONSPIRING WITH FIVE
OTHER BAKING COMPANIES TO FIX THE PRICES OF 'ECONOMY' BREAD SOLD IN THE
PHILADELPHIA-TRENTON AREA."  THE RECORD BEFORE THE DISTRICT COURT
SHOWED, MOREOVER, THAT FOUR OF THE DEFENDANTS HAD PREVIOUSLY PLEADED
NOLO CONTENDERE TO CHARGES OF CONSPIRING TO FIX PRICES ON SALES TO
NONGOVERNMENT ACCOUNTS, SUCH AS "GROCERY STORES, SUPERMARKETS,
RESTAURANTS, HOTELS AND SIMILAR LARGE PURCHASERS."  THUS, THE
SURROUNDING CIRCUMSTANCES SUGGEST THE POSSIBILITY OF A CONSPIRACY
REACHING BEYOND THE JACKSONVILLE AREA, BEYOND BREAD AND ROLLS, AND,
MOST SIGNIFICANTLY, BEYOND SALES TO THE GOVERNMENT. 

AGAINST THIS BACKGROUND, IT CANNOT REASONABLY BE ASSUMED THAT THE
GOVERNMENT COULD NOT, AT THE TRIAL, HAVE INTRODUCED EVIDENCE
JUSTIFYING, IN WHOLE OR IN PART, THE RELIEF SOUGHT.  (FN3)  THIS IS NOT
TO SAY, OF COURSE, THAT THE DISTRICT COURT COULD NOT CORRECTLY HAVE
CONCLUDED, AFTER TRIAL AND AN "OPPORTUNITY TO KNOW THE RECORD AND TO
APPRAISE THE NEED FOR PROHIBITIONS OR AFFIRMATIVE ACTIONS," UNITED
STATES V. UNITED STATES GYPSUM CO., SUPRA, AT 89, THAT THE REQUESTED
RELIEF WAS NOT WARRANTED.  UNDER THE CIRCUMSTANCES OF THIS CASE,
HOWEVER, IT COULD NOT SO CONCLUDE WITHOUT A TRIAL.   (FN4) 

SINCE WE CONCLUDE THAT THERE WAS A BONA FIDE DISAGREEMENT CONCERNING
SUBSTANTIVE ITEMS OF RELIEF WHICH COULD BE RESOLVED ONLY BY TRIAL, WE
NEED NOT, AND DO NOT, REACH APPELLEES' CONTENTION THAT, WHERE THERE IS
AGREEMENT ON EVERY SUBSTANTIVE ITEM OF RELIEF, INSISTENCE BY THE
GOVERNMENT UPON AN ADJUDICATION OF GUILT AS A CONDITION TO GIVING ITS
CONSENT TO A JUDGMENT WOULD CONFLICT WITH THE CONGRESSIONAL POLICY
EMBODIED IN SEC. 5 OF THE CLAYTON ACT, 38 STAT. 731, AS AMENDED, 15
U.S.C. SEC. 16.  (FN5)  COMPARE, UNITED STATES V. BRUNSWICK-BALKE
COLLENDER CO., 203 F. SUPP. 657.  WE DECIDE ONLY THAT WHERE THE
GOVERNMENT SEEKS AN ITEM OF RELIEF TO WHICH EVIDENCE ADDUCED AT TRIAL
MAY SHOW THAT IT IS ENTITLED, THE DISTRICT COURT MAY NOT ENTER A
"CONSENT" JUDGMENT WITHOUT THE ACTUAL CONSENT OF THE GOVERNMENT.  THERE
IS NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF SEC. 5 OF THE
CLAYTON ACT INDICATING THAT CONGRESS INTENDED TO GIVE A DEFENDANT THE
PRIVILEGE OF REJECTING THE BONA FIDE DEMANDS OF THE GOVERNMENT AND AT
THE SAME TIME AVOIDING AN ADJUDICATION ON THE MERITS OF THE COMPLAINT. 
THE COMPANIES ARGUED BEFORE THE DISTRICT COURT THAT THEY SHOULD NOT BE
"FORECLOSED FROM A RIGHT TO GO TO TRIAL IF THE DISTRICT COURT DECIDES
TO ENTER THE GOVERNMENT'S DECREE."  NOR SHOULD THE GOVERNMENT BE
FORECLOSED FROM THE SAME RIGHT WHERE, AS HERE, THE DISTRICT COURT
DECIDES, OVER THE GOVERNMENT'S OBJECTION, TO ENTER THE COMPANIES'
PROPOSED DECREE. 

ACCORDINGLY, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR
TRIAL.  IT IS SO ORDERED. 

FN1  IN MARCH 1961 AN INDICTMENT HAD BEEN RETURNED AGAINST THE FIVE
BAKERY COMPANIES CHARGING THEM WITH VIOLATING THE SHERMAN ACT BY
COMMITTING SUBSTANTIALLY THE SAME ACTS AS WERE CHARGED IN THE
SUBSEQUENT CIVIL COMPLAINT.  FOUR OF APPELLEE COMPANIES, AND TWO OTHER
COMPANIES, HAD ALSO BEEN CHARGED WITH CONSPIRING TO FIX THE PRICE OF
BREAD AND ROLLS ON SALES TO NONGOVERNMENT WHOLESALE ACCOUNTS, DEFINED
AS "GROCERY STORES, SUPERMARKETS, RESTAURANTS, HOTELS AND SIMILAR LARGE
PURCHASERS  ...  ."  ALL THE DEFENDANTS SUBMITTED, OVER THE OBJECTION
OF THE GOVERNMENT, PLEAS OF NOLO CONTENDERE AND FINES WERE IMPOSED. 
THE SAME JUDGE PRESIDED IN BOTH THE CRIMINAL AND CIVIL CASES. 

FN2  THE COMPANIES WERE ALSO CHARGED WITH VIOLATING THE FALSE CLAIMS
ACT, REVISED STATUTES SECS. 3490, 3491, 3492, 5438, AS AMENDED, 31
U.S.C. SECS 231-233, DERIVED FROM THE ACT OF MARCH 2, 1863, 12 STAT.
696.  THIS WAS SETTLED BY A PAYMENT OF $44,000. 

FN3  THE DISPUTED PROVISIONS CERTAINLY MAY BE REGARDED AS WITHIN THE
GENERAL SCOPE OF THE RELIEF SOUGHT IN THE COMPLAINT, WHICH INCLUDED A
REQUEST FOR "SUCH FURTHER, GENERAL, AND DIFFERENT RELIEF AS THE NATURE
OF THE CASE MAY REQUIRE AND THE COURT MAY DEEM APPROPRIATE IN THE
PREMISES."  IT SHOULD BE NOTED IN THIS REGARD THAT THE COMPANIES DID
ACCEDE TO A NUMBER OF GOVERNMENT DEMANDS WHICH WENT BEYOND THE
VIOLATIONS CHARGED OR THE SPECIFIC RELIEF REQUESTED.    FN4  IT IS NOT
CONTENDED THAT THIS WOULD HAVE BEEN A PROPER CASE FOR THE ENTRY OF
SUMMARY JUDGMENT.  THE CRITICAL QUESTION WAS WHETHER THE GOVERNMENT
COULD PRODUCE EVIDENCE AT TRIAL WARRANTING THE RELIEF SOUGHT.  THE
COMPANIES CLAIM, HOWEVER, THAT IF THE GOVERNMENT HAD SUCH EVIDENCE, IT
SHOULD HAVE PRODUCED THAT EVIDENCE IN RESPONSE TO THE DISTRICT COURT'S
ORDER TO SHOW CAUSE WHY THE COMPANIES' PROPOSED CONSENT JUDGMENT SHOULD
NOT BE ENTERED.  THE SHOW-CAUSE ORDER CANNOT PROPERLY BE READ AS A
DEMAND THAT THE GOVERNMENT DETAIL OR TENDER THE EVIDENCE IT PROPOSED TO
OFFER AT TRIAL.  THE GOVERNMENT'S RESPONSE, WHICH SPECIFIED ITS LEGAL
AND FACTUAL OBJECTIONS TO THE ENTRY OF THE PROPOSED DECREE AND INFORMED
THE COURT OF THE PHILADELPHIA-TRENTON INDICTMENT, ANTE, AT 332-333, WAS
A FULL AND SATISFACTORY RESPONSE TO THE SHOW-CAUSE ORDER. 

FN5  THE CLAYTON ACT, SEC. 5(A), 38 STAT. 731, AS AMENDED, 15 U.S.C.
SEC. 16, PROVIDES AS FOLLOWS:

"A FINAL JUDGMENT OR DECREE HERETOFORE OR HEREAFTER RENDERED IN ANY
CIVIL OR CRIMINAL PROCEEDING BROUGHT BY OR ON BEHALF OF THE UNITED
STATES UNDER THE ANTITRUST LAWS TO THE EFFECT THAT A DEFENDANT HAS
VIOLATED SAID LAWS SHALL BE PRIMA FACIE EVIDENCE AGAINST SUCH DEFENDANT
IN ANY ACTION OR PROCEEDING BROUGHT BY ANY OTHER PARTY AGAINST SUCH
DEFENDANT UNDER SAID LAWS OR BY THE UNITED STATES UNDER SECTION 15A OF
THIS TITLE, AS TO ALL MATTERS RESPECTING WHICH SAID JUDGMENT OR DECREE
WOULD BE AN ESTOPPEL AS BETWEEN THE PARTIES THERETO:  PROVIDED, THAT
THIS SECTION SHALL NOT APPLY TO CONSENT JUDGMENTS OR DECREES ENTERED
BEFORE ANY TESTIMONY HAS BEEN TAKEN OR TO JUDGMENTS OR DECREES ENTERED
IN ACTIONS UNDER SECTION 15A OF THIS TITLE." 
..END :



















ARCENEAUX V. LOUISIANA 376 U.S. 336 


NO. 76.  ARGUED JANUARY 15, 1964.  - DECIDED MARCH 9, 1964. 


WRIT OF CERTIORARI DISMISSED FOR LACK OF JURISDICTION SINCE DENIAL OF
PRELIMINARY HEARING IN THIS CASE IS NOT A "FINAL" JUDGMENT UNDER 28
U.S.C. SEC 1257. 

ARCENEAUX V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

PETITIONER, WHO WAS BEFORE THE STATE COURT "ON A CHARGE OF VAGRANCY,"
(FN1) RAISED SEVERAL OBJECTIONS TO A DENIAL OF A PRELIMINARY HEARING. 
THE THIRD OF THESE READS AS FOLLOWS: 

"  ...  THAT THE BILL OF INFORMATION CHARGES NO OFFENSE KNOWN TO LAW
AND IF IT CHARGES AN OFFENSE WITHIN THE MEANING AND INTENTMENT OF A
LOUISIANA STATUTE, THEN BOTH THE STATUTE AND THE BILL OF INFORMATION
ARE UNCONSTITUTIONAL, NULL, AND VOID, AS BEING VIOLATIVE OF THE
GUARANTIES CONTAINED IN THE UNITED STATES CONSTITUTION AND OF THE
LOUISIANA CONSTITUTION AND LAWS; ...  ." 

LOUISIANA REV. STAT. SEC. 15:154 PROVIDES THAT "AFTER AN INDICTMENT
FOUND OR AN INFORMATION FILED, IT SHALL BE WHOLLY WITHIN THE DISCRETION
OF THE DISTRICT COURT, AND NOT SUBJECT TO REVIEW BY ANY OTHER COURT, TO
ORDER OR TO REFUSE TO ORDER A PRELIMINARY EXAMINATION; ...  ." 

PETITIONER, WHEN HE ASKED FOR A PRELIMINARY HEARING, WAS INCARCERATED
AND CHARGED BY AFFIDAVIT WITH THE OFFENSE OF VAGRANCY.  NEITHER AN
INDICTMENT NOR A BILL OF INFORMATION HAD BEEN FILED AGAINST HIM.  IN
THAT STATE OF THE PROCEEDINGS THE MOTION FOR A PRELIMINARY EXAMINATION
WAS GRANTED AND A HEARING SET FOR MARCH 8, 1962, AND THEN CONTINUED TO
MARCH 9.  ON MARCH 9 THE DISTRICT ATTORNEY FILED AN INFORMATION
CHARGING THE ACCUSED WITH THE CRIME OF VAGRANCY.  THEREUPON, THE
DISTRICT JUDGE RECALLED HIS ORDER FOR A PRELIMINARY EXAMINATION. 

PETITIONER APPEALED TO THE LOUISIANA SUPREME COURT, ASKING FOR A WRIT
OF HABEAS CORPUS AND ALTERNATIVELY FOR CERTIORARI, MANDAMUS, AND
PROHIBITION.  IN THAT APPLICATION THE REMEDIES OF CERTIORARI, (FN2)
MANDAMUS AND PROHIBITION WERE SOUGHT ALTERNATIVELY FOR DENIAL OF A
PRELIMINARY EXAMINATION AND FOR HAVING TO STAND TRIAL UNDER THE
VAGRANCY ACT. 

IN THAT APPLICATION THE PETITIONER SAID: 

"THE BILL OF INFORMATION CHARGED NO CRIMINAL OFFENSE, AND IF IT DID
SET FORTH AN ALLEGED OFFENSE IN THE LANGUAGE OF A STATUTE, THEN SUCH
STATUTE AND THE BILL OF INFORMATION ARE UNCONSTITUTIONAL, NULL AND
VOID, BEING VIOLATIVE OF BOTH FEDERAL AND STATE CONSTITUTIONS." 

IN THE PRAYER FOR RELIEF CONTAINED IN THE APPLICATION HE ASKED IN THE
ALTERNATIVE THAT THE COURT RULE "UPON THE CONSTITUTIONALITY" OF THE
VAGRANCY STATUTE AND WHETHER IT AND OTHER LOUISIANA STATUTES AND
CONSTITUTIONAL PROVISIONS CITED "ARE CONTRARY TO AND VIOLATIVE OF THE
PROVISIONS OF THE UNITED STATES CONSTITUTION, AND IN PARTICULAR THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS THERETO." 

THUS WHEN PETITIONER SOUGHT REVIEW OF THE DENIAL OF A PRELIMINARY
HEARING, HE TRIED TO RAISE THE QUESTION OF THE CONSTITUTIONALITY OF THE
VAGRANCY STATUTE. 

THE SUPREME COURT DENIED THE WRITS ON MARCH 16, 1962, SAYING "WRIT
REFUSED.  THERE IS NO ERROR OF LAW IN THE RULING COMPLAINED OF."  THE
PETITION FOR CERTIORARI TO THIS COURT WAS FILED MARCH 31, 1962.  TWO
MONTHS LATER, I.E., MAY 31, 1962, PETITIONER APPEARED IN THE LAFAYETTE
CITY COURT (TO WHICH THE CASE HAD BEEN TRANSFERRED BY THE DISTRICT
COURT) AND PLEADED GUILTY TO THE CHARGE OF VAGRANCY.  HE WAS THEN
SENTENCED TO SERVE FOUR MONTHS IN JAIL, BUT GIVEN CREDIT FOR THE TIME
SERVED AND FORTHWITH DISCHARGED.  WE GRANTED CERTIORARI, 372 U.S. 906,
AND THE CASE HAS BEEN ARGUED. 

IN LOUISIANA IT SEEMS THAT, WITH EXCEPTIONS NOT RELEVANT HERE, ONLY
ORDERS WHICH FINALLY DISPOSE OF CRIMINAL CASES CAN BE APPEALED.  SEE
LA. REV. STAT. SEC. 15:540.  "A CASE IS FINALLY DISPOSED OF BY ANY
JUDGMENT WHICH DISMISSES THE PROSECUTION, WHETHER BEFORE OR AFTER
VERDICT, THAT GRANTS OR REFUSES TO GRANT A NEW TRIAL, THAT ARRESTS OR
REFUSES TO ARREST JUDGMENT, OR THAT IMPOSES SENTENCE."   LA. REV. STAT.
SEC. 15:541. 

THE "RULING COMPLAINED OF" AS REFERRED TO BY THE LOUISIANA SUPREME
COURT CAN ONLY BE THE ORDER RECALLING THE ORDER FOR A PRELIMINARY
HEARING.  UNDER OUR DECISIONS IN THE CRIMINAL FIELD, SUCH DENIAL OF
INTERMEDIATE RELIEF IN STATE CRIMINAL CASES IS SIMILAR TO AN ORDER
OVERRULING A PLEA IN BAR (EASTMAN V. OHIO, 299 U.S. 505) OR OVERRULING
A DEMURRER TO AN INDICTMENT (POLAKOW'S REALTY EXPERTS V. ALABAMA, 319
U.S. 750).  HENCE UNDER 28 U.S.C. SEC. 1257, DENIAL OF THE PRELIMINARY
HEARING IN A VAGRANCY CASE OF THIS CHARACTER IS NOT A "FINAL"
JUDGMENT.  WE THEREFORE DISMISS THE WRIT FOR LACK OF JURISDICTION,
WITHOUT ANY INTIMATION AS TO WHAT RIGHTS, IF ANY, PETITIONER MAY HAVE
UNDER THE CIVIL RIGHTS ACTS. 

FN1  THE STATUTE CHALLENGED, LA. REV. STAT. SEC. 14:107 (1962 CUM.
SUPP.), PROVIDES: 

"THE FOLLOWING PERSONS ARE AND SHALL BE GUILTY OF VAGRANCY: 

     *   *         *         *         * 

"(8)  PERSONS FOUND IN OR NEAR ANY STRUCTURE, MOVABLE, VESSEL, OR
PRIVATE GROUNDS, WITHOUT BEING ABLE TO ACCOUNT FOR THEIR LAWFUL
PRESENCE THEREIN; ...  ." 

FN2  WE DO NOT CONCERN OURSELVES WITH THE STATE LAW ASPECTS OF HABEAS
CORPUS, WHICH IS, AFTER ALL, ONLY AN ALTERNATIVE FORM OF RELIEF THAT
WAS SOUGHT. 
..END :









SHUTTLESWORTH V. BIRMINGHAM 376 U.S. 339 


NO. 168.  ARGUED FEBRUARY 27, 1964.  - DECIDED MARCH 9, 1964.  - 42 ALA.
APP. 1, 149 SO. 2D 921, REVERSED. 


SHUTTLESWORTH V. CITY OF BIRMINGHAM. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

PER CURIAM. 

THE JUDGMENT OF THE COURT OF APPEALS OF ALABAMA IS REVERSED.  COLE V.
ARKANSAS, 333 U.S. 196; WILLIAMS V. GEORGIA, 349 U.S. 375. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














SMITH V. PENNSYLVANIA 376 U.S. 354 


NO. 561.  DECIDED MARCH 9, 1964.  - REPORTED BELOW:  412 PA. 1, 192 A.2D
671. 


CERTIORARI GRANTED AND CASE REMANDED FOR RECONSIDERATION OF
PETITIONER'S REQUESTS FOR STATEMENTS OF WITNESSES. 

SMITH V. PENNSYLVANIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA. 

PER CURIAM. 

PRIOR TO COMMENCEMENT OF PETITIONER'S TRIAL FOR ASSAULT AND BATTERY
UPON STATE POLICE OFFICERS, HE SERVED UPON THE LOCAL OFFICE OF THE
FEDERAL BUREAU OF INVESTIGATION A SUBPOENA DUCES TECUM CALLING FOR THE
PRODUCTION OF "STATEMENTS OF ALL WITNESSES, DIAGRAMS, SKETCHES AND
PHOTOGRAPHS TAKEN IN CONNECTION WITH" THE FBI'S INVESTIGATION OF THE
INCIDENT WHICH FORMED THE BASIS FOR THE CRIMINAL PROSECUTION.  THE FBI
HAD MADE THE INVESTIGATION IN RESPONSE TO A COMPLAINT FILED BY
PETITIONER WITH THE CIVIL RIGHTS DIVISION OF THE DEPARTMENT OF JUSTICE,
CHARGING A DEPRIVATION OF HIS CIVIL RIGHTS BY THE ACTIONS OF THE POLICE
OFFICERS WHOM HE ALLEGEDLY ASSAULTED.  AN ASSISTANT UNITED STATES
ATTORNEY APPEARED ON THE DAY SET FOR TRIAL AND MOVED TO QUASH THE
SUBPOENA, CLAIMING THAT THE FILE CONTAINED CONFIDENTIAL MATERIAL
SUBJECT TO A FEDERAL PRIVILEGE OF NONDISCLOSURE.  THE SUBPOENA WAS
QUASHED BY THE TRIAL COURT FOR THAT REASON AND FOR NONCOMPLIANCE WITH
LOCAL RULES OF PRACTICE. 

PETITIONER FORMALLY REQUESTED THE COURT, BOTH BEFORE AND AFTER THEY
TESTIFIED, TO ISSUE A SUBPOENA DUCES TECUM FOR STATEMENTS TAKEN BY THE
FBI FROM TWO WITNESSES FOR THE PROSECUTION, STATING THAT THE STATEMENTS
WERE NEEDED FOR PURPOSES OF IMPEACHMENT.  THE TRIAL COURT DENIED THE
REQUESTS BECAUSE IT FELT THAT PETITIONER WOULD RECEIVE THE SAME
INFORMATION FROM MATERIAL WHICH THE STATE AUTHORITIES HAD PROMISED TO
MAKE AVAILABLE.  FOLLOWING PETITIONER'S CONVICTION, THE TRIAL COURT
DENIED HIS MOTION FOR A NEW TRIAL WHICH WAS BASED IN PART ON THE
FAILURE TO ISSUE THE REQUESTED SUBPOENA, STATING THAT THE FEDERAL
GOVERNMENT HAD ALREADY INDICATED THAT IT WOULD NOT HONOR SUCH A
SUBPOENA.  THE JUDGMENT OF CONVICTION WAS AFFIRMED BY THE PENNSYLVANIA
SUPREME COURT (412 PA. 1, 192 A.2D 671), THE COURT STATING, INTER ALIA,
THAT THE FBI, NOT THE COMMONWEALTH, HAD DENIED PETITIONER ACCESS TO THE
INFORMATION IN QUESTION. 

IN RESPONSE TO AN INQUIRY FROM THIS COURT, THE SOLICITOR GENERAL HAS
INDICATED THAT THE CLAIM OF CONFIDENTIAL PRIVILEGE WAS CONCERNED SOLELY
WITH THE INITIAL BROAD-BASED DEMAND FOR VIRTUALLY THE ENTIRE FBI FILE
ON THE MATTER AND THAT THE DEPARTMENT OF JUSTICE WAS NOT INFORMED OF,
AND DID NOT REFUSE TO COMPLY WITH, THE SUBSEQUENT SPECIFIC REQUESTS FOR
STATEMENTS GIVEN BY THE TWO WITNESSES. 

WE GRANT THE PETITION FOR A WRIT OF CERTIORARI AND REMAND THE CASE TO
THE SUPREME COURT OF PENNSYLVANIA, FOR RECONSIDERATION OF PETITIONER'S
REQUESTS IN LIGHT OF THE REPRESENTATIONS OF THE SOLICITOR GENERAL. 
..END :

















MICHAELS ENTERPRISES V. UNITED STATES 376 U.S. 356 


NO. 571.  DECIDED MARCH 9, 1964.  - REPORTED BELOW:  321 F.2D 913. 


CERTIORARI GRANTED, JUDGMENT VACATED, AND CASE REMANDED FOR
CONSIDERATION BY THE COURT OF APPEALS OF THE SUFFICIENCY OF THE
EVIDENCE TO SUPPORT IMPOSITION OF NONCONCURRENT SENTENCES, THAT COURT
HAVING ERRONEOUSLY ASSUMED THAT PETITIONERS HAD NOT MADE A MOTION FOR
ACQUITTAL AT THE CLOSE OF THE EVIDENCE. 

MICHAELS ENTERPRISES, INC., ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

PETITIONER JAMES A. MICHAELS, JR., IS PRESIDENT OF PETITIONER
MICHAELS ENTERPRISES, INC., A CORPORATE RETAIL DEALER IN ALCOHOLIC
BEVERAGES.  PETITIONERS WERE CONVICTED BY A JURY IN THE EASTERN
DISTRICT OF MISSOURI ON BOTH COUNTS OF A TWO-COUNT INDICTMENT.  THE
FIRST COUNT CHARGED THEM WITH FAILURE TO "PRODUCE" OR TO "PRESERVE"
CERTAIN PURCHASE RECORDS, IN VIOLATION OF 72 STAT. 1400, 26 U.S.C. SEC.
5603(B)(5).  THE SECOND COUNT CHARGED THEM WITH FAILURE "TO KEEP"
CERTAIN PURCHASE RECORDS OR "MAKE REQUIRED ENTRIES THEREIN" IN
VIOLATION OF 72 STAT. 1400, 26 U.S.C. SEC. 5603(B)(1).   PETITIONER
JAMES A. MICHAELS, JR., WAS SENTENCED TO IMPRISONMENT FOR ONE YEAR AND
FINED $1,000 ON THE FIRST COUNT;* HE WAS FINED AN ADDITIONAL $1,000 ON
THE SECOND COUNT.  PETITIONER MICHAELS ENTERPRISES, INC., WAS FINED
$1,000 ON EACH OF THE TWO COUNTS. 

*THIS IS THE MAXIMUM PENALTY PROVIDED BY THE STATUTE. 

THE CRITICAL ISSUE, AS WE SEE IT, IS WHETHER THE RECORD CONTAINS
SUFFICIENT EVIDENCE OF VIOLATIONS OF THE TWO COUNTS TO SUPPORT THE
IMPOSITION OF NONCONCURRENT SENTENCES.  THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT REFUSED TO CONSIDER THE "QUESTION OF SUFFICIENCY OF THE
EVIDENCE TO SUPPORT THE VERDICT," ON THE GROUND THAT PETITIONERS "DID
NOT MOVE FOR AN ACQUITTAL AT THE CLOSE OF ALL THE EVIDENCE."  321 F.2D
913, 917.  THE RECORD CLEARLY SHOWS, HOWEVER, THAT PETITIONERS DID MOVE
FOR "JUDGMENT OF ACQUITTAL AT THE CLOSE OF ALL THE EVIDENCE," AS WELL
AS "AT THE CLOSE OF THE GOVERNMENT'S CASE." 

THE WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED, AND THE CASE IS REMANDED TO THAT COURT FOR
CONSIDERATION OF THE SUFFICIENCY OF THE EVIDENCE.  IT IS SO ORDERED. 
..END :





FEDERAL POWER COMMISSION V. SOUTHERN CALIFORNIA EDISON CO. 376 U.S. 205 



NO. 71.  ARGUED JANUARY 14, 1964.  - DECIDED MARCH 2, 1964.* - 310 F.2D
784, REVERSED. 

*TOGETHER WITH NO. 73, CITY OF COLTON V. SOUTHERN CALIFORNIA EDISON
CO. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


PETITIONER, A CALIFORNIA MUNICIPALITY, PURCHASED ELECTRIC ENERGY, PART
OF WHICH WAS FROM OUT-OF-STATE, FROM RESPONDENT PUBLIC UTILITY COMPANY,
USING SOME FOR ITSELF BUT RESELLING THE BULK TO OTHERS.  THE RESPONDENT
PUBLIC UTILITIES COMMISSION OF CALIFORNIA HAD PREVIOUSLY EXERCISED
JURISDICTION OVER THE RATES CHARGED THE CITY BY THE PUBLIC UTILITY
COMPANY, BUT ON THE CITY'S PETITION THE PETITIONER FEDERAL POWER
COMMISSION (FPC) ASSERTED JURISDICTION UNDER SEC 201(B) OF THE FEDERAL
POWER ACT, WHICH EXTENDS FEDERAL REGULATORY POWER TO THE "SALE OF
ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE."  THE COURT OF
APPEALS SET ASIDE THE FPC ORDER, HOWEVER, IN VIEW OF THE DECLARATION IN
SEC 201(A) OF THE ACT THAT FEDERAL REGULATION IS TO "EXTEND ONLY TO
THOSE MATTERS WHICH ARE NOT SUBJECT TO REGULATION BY THE STATES." 
SINCE THE INITIAL OUT-OF-STATE SALES, AT HOOVER AND DAVIS DAMS, TO THE
PUBLIC UTILITY COMPANY WERE SUBJECT TO REGULATION BY THE SECRETARY OF
THE INTERIOR AND THE ENERGY SUBSEQUENTLY SOLD WAS CONSUMED WHOLLY
WITHIN CALIFORNIA, THE COURT CONCLUDED THAT THE RATES WERE SUBJECT TO
STATE REGULATION.  HELD: 

1.  THE FPC'S JURISDICTION UNDER SEC 201(B) IS PLENARY AND EXTENDS TO
ALL WHOLESALE SALES OF POWER IN INTERSTATE COMMERCE NOT EXPRESSLY
EXEMPTED BY THE ACT ITSELF.  THE SCOPE OF FPC'S JURISDICTION IS NOT TO
BE DETERMINED BY A CASE-BY-CASE ANALYSIS OF THE IMPACT OF STATE
REGULATION UPON THE NATIONAL INTEREST, NOR CAN THE GENERAL POLICY
DECLARATION IN SEC 201(A) NULLIFY THE SPECIFIC GRANT OF JURISDICTION IN
SEC 201(B).  PP. 206-216. 

2.  ALL SALES OF ENERGY GENERATED AT THE HOOVER DAM ARE NOT EXEMPTED
FROM FPC REGULATION BY VIRTUE OF SEC 6 OF THE BOULDER CANYON PROJECT
ACT GRANTING THE SECRETARY OF THE INTERIOR "CONTROL OF RATES AND
SERVICE IN THE ABSENCE OF STATE REGULATION OR INTERSTATE AGREEMENT,"
THAT PROVISION HAVING BEEN SUPERSEDED BY PART II OF THE FEDERAL POWER
ACT, WHICH INCLUDES SEC 201(B).  PP. 216-220. 

FEDERAL POWER COMMISSION V. SOUTHERN CALIFORNIA EDISON CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER CITY OF COLTON, CALIFORNIA (COLTON), PURCHASES ITS ENTIRE
REQUIREMENTS OF ELECTRIC POWER FROM RESPONDENT SOUTHERN CALIFORNIA
EDISON COMPANY (EDISON), A CALIFORNIA ELECTRIC UTILITY COMPANY WHICH
OPERATES IN CENTRAL AND SOUTHERN CALIFORNIA AND SELLS ENERGY ONLY TO
CUSTOMERS LOCATED THERE.  COLTON APPLIES SOME OF THE POWER PURCHASED TO
MUNICIPAL USES, BUT RESELLS THE BULK OF IT TO THOUSANDS OF RESIDENTIAL,
COMMERCIAL, AND INDUSTRIAL CUSTOMERS IN COLTON AND ITS ENVIRONS. 
RESPONDENT PUBLIC UTILITIES COMMISSION OF CALIFORNIA (PUC) HAD FOR SOME
YEARS EXERCISED JURISDICTION OVER THE EDISON-COLTON SALE, BUT
PETITIONER FEDERAL POWER COMMISSION (FPC), ON COLTON'S PETITION FILED
IN 1958, ASSERTED JURISDICTION (FN1) UNDER SEC 201(B) OF THE FEDERAL
POWER ACT WHICH EXTENDS FEDERAL REGULATORY POWER TO THE "SALE OF
ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE."  49 STAT. 838,
847, 16 U.S.C. SECS 791A, 824-824H.  (FN2)  THE COURT OF APPEALS FOR
THE NINTH CIRCUIT SET ASIDE THE FPC ORDER.  310 F.2D 784. 

SOME OF THE ENERGY WHICH EDISON MARKETS IN CALIFORNIA ORIGINATES IN
NEVADA AND ARIZONA.  EDISON HAS A CONTRACT WITH THE SECRETARY OF THE
INTERIOR UNDER WHICH, AS AGENT FOR THE UNITED STATES, IT GENERATES
ENERGY AT THE HOOVER POWER PLANTS LOCATED IN NEVADA.  THIS CONTRACT
ALLOCATES TO EDISON 7% OF THE TOTAL FIRM GENERATING CAPACITY OF HOOVER
DAM.  (FN3)  EDISON IS ALSO A PARTY TO A 1945 CONTRACT WITH THE UNITED
STATES AND THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA UNDER
WHICH IT IS ENTITLED TO A PORTION OF THE UNUSED FIRM ENERGY ALLOCATED
TO THE WATER DISTRICT FROM HOOVER DAM.  PAYMENT FOR THIS ENERGY IS MADE
TO THE UNITED STATES FOR THE CREDIT OF THE WATER DISTRICT.  ALSO,
HOOVER DAM, DAVIS DAM IN ARIZONA, AND PARKER DAM IN CALIFORNIA ARE
INTERCONNECTED BY A TRANSMISSION LINE FROM WHICH EDISON HAS DRAWN
ENERGY BY AGREEMENT WITH THE WATER DISTRICT. 

THE FPC FOUND, ON THE EXTENSIVE RECORD MADE BEFORE A HEARING
EXAMINER, THAT OUT-OF-STATE ENERGY FROM HOOVER DAM WAS INCLUDED IN THE
ENERGY DELIVERED BY EDISON TO COLTON, AND RULED THAT THE "SALE TO
COLTON IS A SALE OF ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE
SUBJECT TO SECTIONS 201, 205 AND 206 OF THE FEDERAL POWER ACT."  26
F.P.C. 223, 231.  (FN4) 

THE COURT OF APPEALS DID NOT PASS UPON THE QUESTION WHETHER THE
FINDING THAT OUT-OF-STATE ENERGY REACHED COLTON HAS SUPPORT IN THE
RECORD.  (FN5)  THE COURT ASSUMED THAT THE FINDING HAD SUCH SUPPORT,
BUT HELD NEVERTHELESS THAT SEC 201(B) DID NOT GRANT JURISDICTION OVER
THE RATES TO THE FPC.   IT RULED THAT THE CONCLUDING WORDS OF SEC
201(A) - "SUCH FEDERAL REGULATION, HOWEVER, IS TO EXTEND ONLY TO THOSE
MATTERS WHICH ARE NOT SUBJECT TO REGULATION BY THE STATES" - CONFINED
FPC JURISDICTION TO THOSE INTERSTATE WHOLESALES CONSTITUTIONALLY BEYOND
THE POWER OF STATE REGULATION BY FORCE OF THE COMMERCE CLAUSE, ART. I,
SEC 8 OF THE CONSTITUTION.  ACCORDINGLY, IT HELD THAT THE FPC HAD NO
JURISDICTION BECAUSE PUC REGULATION OF THE EDISON-COLTON SALE WAS
PERMISSIBLE UNDER THE COMMERCE CLAUSE.  BECAUSE OF THE IMPORTANCE OF
THE QUESTION IN THE ADMINISTRATION OF THE FEDERAL POWER ACT WE GRANTED
THE SEPARATE PETITIONS FOR CERTIORARI OF THE FPC AND COLTON.  372 U.S.
958.  WE REVERSE.  WE HOLD THAT SEC 201(B) GRANTS THE FPC JURISDICTION
OF ALL SALES OF ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE NOT
EXPRESSLY EXEMPTED BY THE ACT ITSELF, (FN6) AND THAT THE FPC PROPERLY
ASSERTED JURISDICTION OF THE EDISON-COLTON SALE. 

THE VIEW OF THE COURT OF APPEALS WAS THAT THE LIMITING LANGUAGE OF
SEC 201(A), READ TOGETHER WITH THE JURISDICTIONAL GRANT IN SEC 201(B),
MEANT THAT THE FPC COULD NOT ASSERT ITS JURISDICTION OVER A SALE WHICH
THE COMMERCE CLAUSE ALLOWED A STATE TO REGULATE.  SUCH A DETERMINATION
OF THE PERMISSIBILITY OF STATE REGULATION WOULD REQUIRE, THE COURT OF
APPEALS SAID, AN ANALYSIS OF THE IMPACT OF STATE REGULATION OF THE SALE
UPON THE NATIONAL INTEREST IN COMMERCE.  THE COURT HELD THAT SUCH AN
ANALYSIS HERE COMPELLED THE CONCLUSION THAT THE FPC LACKED
JURISDICTION, BECAUSE STATE REGULATION OF THE EDISON-COLTON SALE WOULD
NOT PREJUDICE THE INTERESTS OF ANY OTHER STATE.  THIS CONCLUSION WAS
RESTED UPON THE VIEW THAT THE INTERESTS OF ARIZONA AND NEVADA, THE ONLY
STATES OTHER THAN CALIFORNIA WHICH MIGHT CLAIM TO BE CONCERNED WITH THE
EDISON-COLTON SALE, WERE ALREADY GIVEN FEDERAL PROTECTION BY THE
SECRETARY OF THE INTERIOR'S CONTROL OF THE INITIAL SALES OF HOOVER AND
DAVIS ENERGY.  SINCE THE FIRST SALE WAS SUBJECT TO FEDERAL REGULATION,
AND SINCE THE ENERGY SUBSEQUENTLY SOLD BY EDISON TO COLTON FOR RESALE
WAS TO BE CONSUMED WHOLLY WITHIN CALIFORNIA, THERE WAS SAID TO BE A
"COMPLETE LACK OF INTEREST ON THE PART OF ANY OTHER STATE," AND THE
SALE WAS THEREFORE HELD TO BE SUBJECT TO STATE REGULATION AND EXEMPT
FROM FPC REGULATION.  310 F.2D, AT 789. 

THE COURT OF APPEALS EXPRESSLY REJECTED THE ARGUMENT THAT SEC 201(B)
INCORPORATED A CONGRESSIONAL DECISION AGAINST DETERMINING THE FPC'S
JURISDICTION BY SUCH A CASE-BY-CASE ANALYSIS, AND IN FAVOR OF EMPLOYING
A MORE MECHANICAL TEST WHICH WOULD BRING UNDER FEDERAL REGULATION ALL
SALES OF ELECTRIC ENERGY IN INTERSTATE COMMERCE AT WHOLESALE EXCEPT
THOSE SPECIFICALLY EXEMPTED, AND WOULD EXCLUDE ALL RETAIL SALES.  IN
REVIEWING THE COURT'S RULING ON THIS QUESTION WE DO NOT WRITE ON A
CLEAN SLATE.  IN DECISIONS OVER THE PAST QUARTER CENTURY WE HAVE HELD
THAT CONGRESS, IN ENACTING THE FEDERAL POWER ACT AND THE NATURAL GAS
ACT, APPORTIONED REGULATORY POWER BETWEEN STATE AND FEDERAL GOVERNMENTS
ACCORDING TO A TEST WHICH THIS COURT HAD DEVELOPED IN A SERIES OF CASES
UNDER THE COMMERCE CLAUSE.  THE NATURAL GAS ACT GREW OUT OF THE SAME
JUDICIAL HISTORY AS DID THE PART OF THE FEDERAL POWER ACT WITH WHICH WE
ARE HERE CONCERNED; AND SEC 201(B) OF THE POWER ACT HAS ITS COUNTERPART
IN SEC 1(B) OF THE GAS ACT, 15 U.S.C. SEC 717(B), WHICH BECAME LAW
THREE YEARS LATER IN 1938.  (FN7) 

THE TEST ADOPTED BY CONGRESS WAS DEVELOPED IN A LINE OF DECISIONS
BEGINNING WITH PUBLIC UTILITIES COMM'N V. LANDON, 249 U.S. 236, AND
PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMM'N, 252 U.S. 23.  IN THOSE
CASES THIS COURT HELD THAT THE COMMERCE CLAUSE DOES NOT PROHIBIT A
STATE FROM REGULATING THE SALE OF GAS DIRECTLY TO CONSUMERS EVEN THOUGH
THE GAS BE DRAWN FROM INTERSTATE MAINS.  MISSOURI V. KANSAS GAS CO.,
265 U.S. 298, 309, SKETCHED IN THE OTHER SIDE OF THE PICTURE BY HOLDING
THAT A STATE IS PROHIBITED FROM REGULATING THE RATE AT WHICH GAS FROM
OUT-OF-STATE IS SOLD TO INDEPENDENT DISTRIBUTING COMPANIES FOR RESALE
TO LOCAL CONSUMERS.  THE LAST DECISION IN THIS LINE, AND THE ONE WHICH
DIRECTLY LED TO CONGRESSIONAL INTERVENTION, WAS PUBLIC UTILITIES COMM'N
V. ATTLEBORO STEAM & ELEC.  CO., 273 U.S. 83.  THERE THE PUBLIC
UTILITIES COMMISSION OF RHODE ISLAND ASSERTED JURISDICTION OVER THE
RATES AT WHICH A RHODE ISLAND COMPANY SOLD ENERGY GENERATED AT ITS
RHODE ISLAND PLANT TO A MASSACHUSETTS COMPANY, WHICH TOOK DELIVERY AT
THE STATE LINE FOR RESALE TO THE CITY OF ATTLEBORO.  THE COURT HELD
THAT KANSAS GAS, SUPRA, CONTROLLED, THAT THE CASE DID NOT INVOLVE "A
REGULATION OF THE RATES CHARGED TO LOCAL CONSUMERS," AND THAT SINCE THE
SALE WAS OF CONCERN TO BOTH RHODE ISLAND AND MASSACHUSETTS IT WAS
"NATIONAL IN CHARACTER."  CONSEQUENTLY, "IF SUCH REGULATION IS REQUIRED
IT CAN ONLY BE ATTAINED BY THE EXERCISE OF THE POWER VESTED IN
CONGRESS."  273 U.S., AT 89-90. 

CONGRESS UNDERTOOK FEDERAL REGULATION THROUGH THE FEDERAL POWER ACT
IN 1935 AND THE NATURAL GAS ACT IN 1938.  THE PREMISE WAS THAT
CONSTITUTIONAL LIMITATIONS UPON STATE REGULATORY POWER MADE FEDERAL
REGULATION ESSENTIAL IF MAJOR ASPECTS OF INTERSTATE TRANSMISSION AND
SALE WERE NOT TO GO UNREGULATED.  ATTLEBORO, WITH THE OTHER CASES
CITED, FIGURED PROMINENTLY IN THE DEBATES AND CONGRESSIONAL REPORTS. 
(FN8)  IN ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC SERVICE
CO., 314 U.S. 498, WE WERE FIRST REQUIRED TO DETERMINE THE SCOPE OF THE
FEDERAL POWER WHICH CONGRESS HAD ASSERTED TO MEET THE PROBLEM REVEALED
BY ATTLEBORO AND THE OTHER CASES.  THE SPECIFIC QUESTION IN THAT CASE
WAS WHETHER A COMPANY SELLING INTERSTATE GAS AT WHOLESALE TO
DISTRIBUTORS FOR RESALE IN A SINGLE COULD BE REQUIRED BY THE STATE'S
REGULATORY COMMISSION TO EXTEND ITS FACILITIES AND CONNECT THEM WITH
THOSE OF A LOCAL DISTRIBUTOR, OR WHETHER SUCH EXTENSIONS WERE
EXCLUSIVELY A MATTER FOR THE FPC.  THE COURT NOTED THAT PRIOR TO THE
NATURAL GAS ACT THERE HAD BEEN ANOTHER LINE OF CASES WHICH ADOPTED A
MORE FLEXIBLE APPROACH TO STATE POWER UNDER THE COMMERCE CLAUSE; THESE
CASES HAD BEEN "LESS CONCERNED TO FIND A POINT IN TIME AND SPACE WHERE
THE INTERSTATE COMMERCE IN GAS ENDS AND INTRASTATE COMMERCE BEGINS, AND
HAVE LOOKED TO THE NATURE OF THE STATE REGULATION INVOLVED, THE
OBJECTIVE OF THE STATE, AND THE EFFECT OF THE REGULATION UPON THE
NATIONAL INTEREST IN THE COMMERCE."  314 U.S., AT 505.  BUT THE COURT
HELD THAT CONGRESS, RATHER THAN ADOPTING THIS FLEXIBLE APPROACH, WHICH
WAS APPLIED BY THE COURT OF APPEALS IN THE INSTANT CASE, "UNDERTOOK TO
REGULATE  ...  WITHOUT THE NECESSITY, WHERE CONGRESS HAS NOT ACTED, OF
DRAWING THE PRECISE LINE BETWEEN STATE AND FEDERAL POWER BY THE
LITIGATION OF PARTICULAR CASES."  ID., AT 506-507.  WHAT CONGRESS DID
WAS TO ADOPT THE TEST DEVELOPED IN THE ATTLEBORO LINE WHICH DENIED
STATE POWER TO REGULATE A SALE "AT WHOLESALE TO LOCAL DISTRIBUTING
COMPANIES" AND ALLOWED STATE REGULATION OF A SALE AT "LOCAL RETAIL
RATES TO ULTIMATE CONSUMERS."  314 U.S., AT 504. 

THIS CONCLUSION HAS BEEN CONSISTENTLY REAFFIRMED IN SUBSEQUENT
CASES.  IN PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMM'N,
332 U.S. 507, WHICH CONSIDERED THE REACH OF SEC 1(B) OF THE NATURAL GAS
ACT, THE COURT SAID THAT "THE LINE OF THE STATUTE WAS THUS CLEAR AND
COMPLETE.  IT CUT SHARPLY AND CLEANLY BETWEEN SALES FOR RESALE AND
DIRECT SALES FOR CONSUMPTIVE USES.  NO EXCEPTIONS WERE MADE IN EITHER
CATEGORY FOR PARTICULAR USES, QUANTITIES OR OTHERWISE."  332 U.S., AT
517.  IN UNITED STATES V. PUBLIC UTILITIES COMM'N OF CALIFORNIA, 345
U.S. 295, THE COURT SAID THAT "CONGRESS INTERPRETED THAT CASE
(ATTLEBORO) AS PROHIBITING STATE CONTROL OF WHOLESALE RATES IN
INTERSTATE COMMERCE FOR RESALE, AND SO ARMED THE FEDERAL POWER
COMMISSION WITH PRECISELY THAT POWER," 345 U.S., AT 308, AND FURTHER
THAT "PART II OF THE POWER ACT 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."  345 U.S., AT
311. 

PLAINLY, THE COURT OF APPEALS' READING OF THE SEC 201(A) PROVISO AS
REQUIRING AN APPRAISAL IN EACH CASE OF THE IMPACT OF THE PARTICULAR
SALE, IS INCONSISTENT WITH THESE DECISIONS.  SECTION 201(B) EMBODIES A
CLEAR GRANT OF POWER, AND WE HAVE HELD THAT SEC 201(A) WAS MERELY A
"POLICY DECLARATION ...  OF GREAT GENERALITY.  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 COMM'N, 324 U.S., AT 527.  WE
REITERATED THIS VIEW IN UNITED STATES V. PUBLIC UTILITIES COMM'N,
SUPRA, 345 U.S., AT 311, WHERE WE ALSO SAID, "TO CONCEIVE OF IT (SEC
201(A)) 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."  IN SHORT, OUR DECISIONS HAVE SQUARELY REJECTED THE VIEW
OF THE COURT OF APPEALS THAT THE SCOPE OF FPC JURISDICTION OVER
INTERSTATE SALES OF GAS OR ELECTRICITY AT WHOLESALE IS TO BE DETERMINED
BY A CASE-BY-CASE ANALYSIS OF THE IMPACT OF STATE REGULATION UPON THE
NATIONAL INTEREST.  RATHER, CONGRESS MEANT TO DRAW A BRIGHT LINE EASILY
ASCERTAINED, BETWEEN STATE AND FEDERAL JURISDICTION, MAKING UNNECESSARY
SUCH CASE-BY-CASE ANALYSIS.  THIS WAS DONE IN THE POWER ACT BY MAKING
FPC JURISDICTION PLENARY AND EXTENDING IT TO ALL WHOLESALE SALES IN
INTERSTATE COMMERCE EXCEPT THOSE WHICH CONGRESS HAS MADE EXPLICITLY
SUBJECT TO REGULATION BY THE STATES.  THERE IS NO SUCH EXCEPTION
COVERING THE EDISON-COLTON SALE.  (FN9) 

THE PUC AND EDISON WOULD ALTERNATIVELY FIND A CONGRESSIONAL EXEMPTION
IN THE ASSERTED FACT THAT CONGRESS HAS EXEMPTED FROM FPC REGULATION ALL
SALES OF ENERGY GENERATED AT HOOVER DAM.  SECTION 6 OF THE BOULDER
CANYON PROJECT ACT, 45 STAT. 1061, 43 U.S.C. SEC 617E, GRANTS THE
SECRETARY OF THE INTERIOR "CONTROL OF RATES AND SERVICE IN THE ABSENCE
OF STATE REGULATION OR INTERSTATE AGREEMENT" AND PROVIDES THAT "HE
SHALL ALSO CONFORM WITH OTHER PROVISIONS OF THE FEDERAL WATER POWER ACT
AND OF THE RULES AND REGULATIONS OF THE FEDERAL POWER COMMISSION, WHICH
HAVE BEEN DEVISED OR WHICH MAY BE HEREAFTER DEVISED, FOR THE PROTECTION
OF THE INVESTOR AND CONSUMER."  THE FPC REVERSED THE HEARING EXAMINER'S
RULING THAT SEC 6 WAS AN EXCLUSIVE GRANT TO THE SECRETARY OF REGULATORY
POWER OVER HOOVER ENERGY, AND HELD THAT "WHAT AUTHORITY TO REGULATE
RATES THAT IS HERE GRANTED TO THE SECRETARY OF THE INTERIOR IS
AUTHORITY THAT WOULD BE SUBJECT TO THE LATER ENACTMENT OF THE FEDERAL
POWER ACT IN 1935 CONTAINING A COMPREHENSIVE SCHEME FOR THE REGULATION
OF SALES AT WHOLESALE IN INTERSTATE COMMERCE (SECTION 201(B))."  26
F.P.C., AT 227.  THE COURT OF APPEALS DID NOT DECIDE THE QUESTION BUT
ASSUMED THAT IT WAS PROPERLY DETERMINED IN FAVOR OF FPC AND COLTON. 
310 F.2D, AT 786, N. 2.    WE THINK THAT THE REASONING UNDERLYING OUR
DECISIONS IN UNITED STATES V. PUBLIC UTILITIES COMM'N, SUPRA, AND
PENNSYLVANIA WATER & POWER CO. V. FEDERAL POWER COMM'N, 343 U.S. 414,
IS DIRECTLY APPLICABLE HERE, AND REQUIRES A DECISION UPHOLDING FPC
JURISDICTION.  THOSE CASES INVOLVED THE QUESTION WHETHER FPC
JURISDICTION UNDER SEC 201(B) WAS PRECLUDED BY A PROVISION OF THE 1920
WATER POWER ACT WHICH IS SIMILAR TO SEC 6.  THE WATER POWER ACT BECAME
PART I OF THE FEDERAL POWER ACT WHEN PART II WAS ENACTED IN 1935. 
SALES OF ENERGY GENERATED AT HYDROELECTRIC PROJECTS LICENSED UNDER THAT
ACT WERE TO BE REGULATED BY THE FPC 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  ...  ."  IN UNITED
STATES V. PUBLIC UTILITIES COMM'N, SUPRA, THE PUC ASSERTED JURISDICTION
OVER RATES OF A COMPANY LICENSED UNDER PART I OF THE FEDERAL POWER
ACT.  THE FPC ORDERED THE LICENSEE TO SHOW CAUSE WHY THE RATES WERE NOT
SUBJECT TO EXCLUSIVE FEDERAL JURISDICTION.  THE PUC ARGUED THAT SEC
201(B) WAS INAPPLICABLE, RELYING UPON THE CONCLUDING WORDS OF SEC
201(A), AND CONTENDING THAT SINCE SEC 20 CONTAINED AN AFFIRMATIVE GRANT
OF POWER TO THE STATES, FPC REGULATION WAS PRECLUDED.  THIS COURT HELD
THAT THERE IS NO EVIDENCE THAT CONGRESS INTENDED TO GIVE THE STATES
WHAT WAS ESSENTIALLY NATIONAL POWER, FOR THAT QUESTION WAS NOT
DETERMINED UNTIL ATTLEBORO, AND: 

"THE SWEEP OF THE STATUTE (201(B)) IS WHOLLY INCONSISTENT WITH ANY
ASSERTED STATE POWER AS FIXED BY SEC 20 OF THE 1920 ACT.  WE HAVE
EXAMINED THE LEGISLATIVE HISTORY OF SEC 201(B); ITS PURPORT IS QUITE
CLEAR  ...  .  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."  345 U.S., AT 307-308. 

IN THE PENNSYLVANIA WATER CASE THE FPC ASSERTED JURISDICTION OVER THE
RATES CHARGED BY A LICENSEE TO A MARYLAND DISTRIBUTOR OF ELECTRIC
POWER.  IN SUSTAINING FPC JURISDICTION WE REJECTED THE CONTENTION THAT
BECAUSE PENNSYLVANIA WATER WAS A LICENSEE UNDER PART I OF THE FEDERAL
POWER ACT, AND THEREFORE SUBJECT TO REGULATION UNDER THAT PART, ITS
REGULATION UNDER PART II WAS PRECLUDED.  343 U.S., AT 418-419. 

WE THINK THE POWER GIVEN THE SECRETARY UNDER SEC 6 OF THE BOULDER
CANYON PROJECT ACT IS SIMILAR IN SCOPE TO THE POWER OF THE FPC UNDER
SEC 20 OF THE 1920 WATER POWER ACT.  UNDER THE WATER POWER ACT THE
PRINCIPAL FUNCTION OF THE FPC, THEN COMPOSED OF THE SECRETARIES OF WAR,
INTERIOR, AND AGRICULTURE, WAS THE LICENSING, CONSTRUCTION AND
OPERATION OF HYDROELECTRIC DEVELOPMENT PROJECTS.  ITS POWER TO REGULATE
RATES WAS BASED UPON THE NATIONAL POWER OVER NAVIGABLE WATERS AND
PUBLIC LANDS, AND NOT UPON POWER OVER INTERSTATE COMMERCE.  IT WAS
EXERCISED ONLY AS AN INCIDENT OF THE LICENSING POWER, AND THEN ONLY TO
FILL A HIATUS WHICH MIGHT OTHERWISE EXIST IN THE ABSENCE OF STATE
REGULATION.  THE LEGISLATION RESTS ON THE ASSUMPTION THAT THE FPC WOULD
REGULATE ONLY IN THE ABSENCE OF STATE REGULATION. 

AN ANALYSIS OF SEC 6 OF THE BOULDER CANYON PROJECT ACT COMPELS THE
SAME CONCLUSION.  THE PARALLEL BETWEEN THE TWO SECTIONS IS
UNMISTAKABLE.  LICENSING BY THE FPC FOR THE CONSTRUCTION OF HOOVER DAM
WAS UNNECESSARY BECAUSE CONGRESS ITSELF HAD AUTHORIZED THE
CONSTRUCTION.  SINCE GENERAL SUPERVISORY POWER WAS GIVEN TO THE
SECRETARY RATHER THAN THE COMMISSION, SEC 6 OF THE ACT GAVE HIM POWERS
ANALOGOUS TO THOSE GIVEN THE FPC BY SEC 20 OF THE WATER POWER ACT. 
(FN10)  WHILE THE WORDS OF SEC 6 DO NOT PRECISELY TRACK THOSE OF SEC
20, THE HISTORY OF SEC 6 BELIES THE ASSERTION THAT IT CONTAINED AN
AFFIRMATIVE GRANT OF POWER TO THE STATES.  IT MERELY ASSUMED, CONTRARY
TO ATTLEBORO, A BREADTH OF STATE REGULATORY POWER (FN11) WHICH MADE
UNNECESSARY ALL BUT INTERSTICIAL FEDERAL REGULATION.  ALTHOUGH SEC 6
DID NOT BECOME LAW UNTIL TWO YEARS AFTER ATTLEBORO WAS DECIDED, THAT
NOT APPEAR FROM THE LEGISLATIVE HISTORY OF SEC 6 THAT THE ATTENTION OF
CONGRESS WAS EVER DIRECTED TO THE SIGNIFICANCE OF THAT DECISION UPON
THE EFFECTIVENESS OF THE SECTION.  (FN12) 

ON THE OTHER HAND, THE LEGISLATIVE HISTORY OF PART II OF THE POWER
ACT DEMONSTRATES THAT CONGRESS BELIEVED THAT ATTLEBORO AND THE RELATED
CASES COMPELLED IT TO FOREGO ITS ASSUMPTION AS TO STATE REGULATION AND
DISPLACE IT WITH COMPREHENSIVE FEDERAL REGULATION.  A PROPER CONCERN
FOR THIS OBJECTIVE REQUIRES THE CONCLUSION THAT PART II SUPERSEDED AND
REPEALED ANY REGULATION UNDER SEC 6 BY THE SECRETARY OF THE INTERIOR OR
THE STATES OF INTERSTATE WHOLESALES OF ELECTRIC ENERGY SUBSEQUENTLY
MADE OF HOOVER POWER. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  COLTON PRESENTLY PURCHASES ITS REQUIREMENTS FROM EDISON UNDER A
10-YEAR CONTRACT MADE IN 1945 WHICH CONTINUES IN EFFECT FROM MONTH TO
MONTH AFTER THE END OF THE TERM UNTIL TERMINATED BY EITHER PARTY BY
WRITTEN NOTICE.  THE CONTRACT WAS FILED WITH THE PUC, AND IT WAS IN
1958, AFTER PUC APPROVED A SECOND INCREASE IN THE CONTRACT RATES, THAT
COLTON REQUESTED FPC TO INSTITUTE AN INVESTIGATION TO DETERMINE IF THE
EDISON-COLTON SALE WAS SUBJECT TO FEDERAL JURISDICTION.  AN
INVESTIGATION WAS MADE AND A HEARING ORDERED.  THE STAFF OF FPC,
COLTON, PUC AND EDISON PARTICIPATED IN THE HEARINGS WHICH FOLLOWED. 
THE STAFF OF FPC AND COLTON SUPPORTED FPC JURISDICTION BUT EDISON AND
PUC OPPOSED.  THE HEARING EXAMINER ORDERED THE DISMISSAL OF COLTON'S
PETITION AND THE FPC REVERSED.  FEDERAL JURISDICTION WAS FOUND TO HAVE
ATTACHED AS OF JULY 1, 1954.  EDISON WAS ORDERED TO FILE THE 1945
CONTRACT AND TO CEASE AND DESIST FROM CHARGING COLTON IN EXCESS OF THE
CONTRACT RATES WITHOUT FPC AUTHORIZATION.  EDISON WAS ALSO REQUIRED TO
ACCOUNT FOR SUMS IN EXCESS OF THOSE RATES COLLECTED ON AND AFTER JULY
1, 1954, AND TO ESTABLISH A SPECIAL RESERVE ACCOUNT FOR THAT EXCESS
WITH INTEREST.  26 F.P.C. 223. 

FN2  SECTION 201 IN PERTINENT PART IS AS FOLLOWS: 

"(A)  IT IS HEREBY DECLARED THAT  ...  FEDERAL REGULATION OF  ...
THE SALE OF SUCH ENERGY AT WHOLESALE IN INTERSTATE COMMERCE IS
NECCESSARY IN THE PUBLIC INTEREST, SUCH FEDERAL REGULATION, HOWEVER, TO
EXTEND ONLY TO THOSE MATTERS WHICH ARE NOT SUBJECT TO REGULATION BY THE
STATES. 

"(B)  THE PROVISIONS OF THIS PART SHALL APPLY TO  ...  THE SALE OF
ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE  ...  .  THE
COMMISSION SHALL HAVE JURISDICTION OVER ALL FACILITIES FOR SUCH ...
SALE OF ELECTRIC ENERGY, BUT SHALL NOT HAVE JURISDICTION, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS PART AND THE PART NEXT FOLLOWING, OVER
...  FACILITIES USED IN LOCAL DISTRIBUTION  ...  . 

     *         *         *         *         * 

"(D)  THE TERM 'SALE OF ELECTRIC ENERGY AT WHOLESALE' WHEN USED IN
THIS PART MEANS A SALE OF ELECTRIC ENERGY TO ANY PERSON FOR RESALE. 

"(E) THE TERM 'PUBLIC UTILITY' WHEN USED IN THIS PART OR IN THE PART
NEXT FOLLOWING MEANS ANY PERSON WHO OWNS OR OPERATES FACILITIES SUBJECT
TO THE JURISDICTION OF THE COMMISSION UNDER THIS PART." 

FN3  WHILE EDISON ADMITS THAT IT IS A "PUBLIC UTILITY" WITHIN THE
MEANING OF SEC 201(E) OF THE FEDERAL POWER ACT BY VIRTUE OF ITS
OWNERSHIP OF TWO INTERSTATE TRANSMISSION LINES RUNNING FROM HOOVER DAM
TO ITS CHINO SUBSTATION IN CALIFORNIA, ITS STATUS AS A PUBLIC UTILITY
DOES NOT DECIDE THE QUESTION WHETHER THE FPC MAY ASSERT JURISDICTION
OVER THE RATES OF THE EDISON-COLTON SALE.  CF. CONNECTICUT LIGHT &
POWER CO. V. FEDERAL POWER COMM'N, 324 U.S. 515. 

FN4  FPC REGULATION OF RATES RESTS ON SECS 205(A) AND 206(A), 16
U.S.C. SECS 824D, 824E. 

FN5  THE BRIEFS OF PUC AND EDISON ARGUE THAT THE FPC'S FINDING THAT
SOME OUT-OF-STATE ENERGY IS DELIVERED BY EDISON TO COLTON IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD.  AMONG OTHER FINDINGS,
THE FPC FOUND:  "ON THE BASIS OF THE RECORD, ELECTRIC ENERGY GENERATED
AT HOOVER WAS SOLD TO COLTON DURING 596 HOURS OUT OF 598 HOURS IN THE
LAST SIX MONTHS OF 1954, 1,338 HOURS OUT OF 2,065 IN 1955, 270 HOURS
OUT OF 1,954 IN 1956, 199 HOURS OUT OF 1,388 IN 1957, AND 1,115 HOURS
OUT OF 1,479 IN 1958; AND THESE DELIVERIES INCLUDED DAVIS ENERGY DURING
341 HOURS IN 1954, 746 HOURS IN 1955 AND 31 HOURS IN 1956."  26 F.P.C.,
AT 231.  OF COURSE, UNDER THE ACT "THE FINDING OF THE COMMISSION AS TO
THE FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE." 
SEC 313(B).   WE HAVE SAID OF PART II OF THE POWER ACT THAT "FEDERAL
JURISDICTION WAS TO FOLLOW THE FLOW OF ELECTRIC ENERGY, AN ENGINEERING
AND SCIENTIFIC, RATHER THAN A LEGALISTIC OR GOVERNMENTAL TEST." 
CONNECTICUT LIGHT & POWER CO. V. FEDERAL POWER COMM'N, 324 U.S. 515,
529.  WE HAVE EXAMINED THE PROOFS.  THEY ARE IN SHARP CONFLICT BUT WE
HOLD THAT THE ENGINEERING AND SCIENTIFIC EVIDENCE RECEIVED BY THE
COMMISSION ON THE SUBJECT FROM THE COMMISSION'S OWN EXPERTS AFFORDED
SUBSTANTIAL EVIDENCE UPON WHICH TO REST THE FINDINGS WHICH TRACE OUT-OF
STATE ENERGY TO THE CITY OF COLTON. 

THE PUC ALSO ARGUES THAT ANY OUT-OF-STATE ENERGY WAS DE MINIMIS IN
AMOUNT AND THAT FPC JURISDICTION DID NOT ATTACH ON THAT ACCOUNT.  BUT
THE FACT WOULD BE RELEVANT ONLY ON THE QUESTION WHETHER EDISON WAS A
"PUBLIC UTILITY" OVER WHICH FPC IN ITS DISCRETION SHOULD ASSUME
JURISDICTION, CONNECTICUT LIGHT & POWER CO. V. FEDERAL POWER COMM'N,
SUPRA, PP. 535-536.  HERE EDISON IS CONCEDEDLY A "PUBLIC UTILITY" AND
WE AGREE WITH THE FPC THAT IN THAT CIRCUMSTANCE THE FPC HAS "NO
DISCRETION TO REJECT THAT JURISDICTION."  26 F.P.C., AT 236. 

FN6  SECTION 210(B) EXPRESSLY EXCLUDES FPC JURISDICTION "OVER
FACILITIES USED IN LOCAL DISTRIBUTION."  EDISON AND PUC RAISE IN THEIR
BRIEFS THE QUESTION WHETHER FEDERAL JURISDICTION OVER THE SALE OF
ELECTRIC ENERGY BY EDISON TO COLTON IS PREVENTED BY THE "LOCAL
DISTRIBUTION" PROVISO OF SEC 201(B).  WHETHER FACILITIES ARE USED IN
LOCAL DISTRIBUTION - ALTHOUGH A LIMITATION ON FPC JURISDICTION AND A
LEGAL STANDARD THAT MUST BE GIVEN EFFECT IN ADDITION TO THE
TECHNOLOGICAL TRANSMISSION TEST, CONNECTICUT LIGHT & POWER CO. V.
FEDERAL POWER COMM'N, SUPRA, P. 531 - INVOLVES A QUESTION OF FACT TO BE
DECIDED BY THE FPC AS AN ORIGINAL MATTER.  THE FPC FOUND IN THIS CASE
THAT "THERE ARE FACILITIES OWNED BY EDISON WHICH IT USES EXCLUSIVELY TO
EFFECT THE WHOLESALE TO COLTON AND NOT FOR LOCAL DISTRIBUTION.  THESE
INCLUDE THE CITY OF COLTON SUBSTATION AND PORTIONS OF THE 12 KV. GLOBE
MILLS AND DERBY LINES AFTER SERVICE TO THE LAST CUSTOMER AT RETAIL  ...
.  THE FACT THAT THE 12 KV. LINES  ...  SERVE AN INDUSTRIAL CUSTOMER,
SEVERAL LIGHTED HIGHWAY SIGNS, A RESIDENCE AND A RAILROAD SECTION HOUSE
BEFORE THEY REACH THE TRANSFORMERS IN THE COLTON CITY SUBSTATION DOES
NOT TRANSFORM THEM INTO LOCAL DISTRIBUTION LINES EVEN IF THIS WERE
RELEVANT."  26 F.P.C., AT 232.  THE FINDINGS HAVE AMPLE SUPPORT IN THE
EVIDENCE AND THE CONCLUSION MAY PROPERLY REST UPON THE SPECIALIZED
EXPERIENCE OF THE FPC IN DETERMINING SUCH QUESTIONS. 

FN7  SECTION 1(B) OF THE NATURAL GAS ACT IS: 

"THE PROVISIONS OF THIS ACT SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS."  52
STAT.  821 (1938), 15 U.S.C. SEC 717(B). 

FN8  SEE S. REP. NO. 621, 74TH CONG., 1ST SESS., PP. 17-54 (1935);
H.R. REP. NO. 1318, 74TH CONG., 1ST SESS., PP. 7-8 (1935).  THE
HEARINGS BEFORE BOTH THE HOUSE AND SENATE COMMITTEES REFLECT THE
GENERAL CONSENSUS THAT UNDER ATTLEBORO AND THE EARLIER DECISIONS, THE
COMMERCE CLAUSE DENIED THE STATES POWER OVER ANY WHOLESALE TRANSACTION
IN INTERSTATE COMMERCE.  HEARINGS BEFORE THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON H.R. 5423, 74TH CONG., 1ST SESS.,
PP. 96, 384, 402, 421-422, 435, 497-498, 518, 521-523, 1612, 1614, 1622
1623, 1629, 1639, 1642, 1656-1657, 1679, 2143, 2144, 2156 (1935);
HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 1725,
74TH CONG., 1ST SESS., PP. 250-251, 760, 767, 768, 800-801 (1935).  THE
GENERAL SOLICITOR OF THE NATIONAL ASSOCIATION OF RAILROAD & UTILITIES
COMMISSIONERS SAID DURING THE HOUSE HEARINGS:  "THAT CASE (ATTLEBORO)
HAS BEEN ACCEPTED BY EVERYBODY AS ESTABLISHING  ...  THE FACT THAT THE
STATE CANNOT REGULATE WHOLESALE TRANSACTIONS, ALTHOUGH IT CAN REGULATE
RETAIL SERVICE AND RATE."  HEARINGS ON H.R. 5423, SUPRA, P. 1657.  AT
THE SENATE HEARINGS HE SAID:  "THE SECOND PART OF THE BILL (SEC 201(B))
PROVIDES FOR REGULATION BY THE FEDERAL GOVERNMENT OF WHOLESALE
TRANSACTIONS IN ELECTRIC POWER.  THOSE ARE TRANSACTIONS WHICH THE
UNITED STATES SUPREME COURT HAS HELD ARE BEYOND THE REACH OF THE STATES
UNDER THE CONSTITUTION.  THE STATES HAVE LONG REGULATED THE RATES
CHARGED BY THE LOCAL DISTRIBUTING COMPANIES TO CONSUMERS; BUT THEY
CANNOT REACH THE INTERSTATE PRODUCER SUPPLYING THE DISTRIBUTING
COMPANY."  HEARINGS ON S. 1725, SUPRA, PP. 756-757.  "IT THEREFORE
FOLLOWS THAT IF THERE IS TO BE ANY REGULATION OF THE WHOLESALE PART OF
THE ELECTRIC AND GAS BUSINESS WHICH PASSES OVER STATE LINES IT MUST BE
SUPPLIED BY THE FEDERAL GOVERNMENT."  ID., P. 768.    FN9  IN 1954
CONGRESS AMENDED THE JURISDICTIONAL PROVISION OF THE NATURAL GAS ACT TO
EXEMPT PERSONS RECEIVING NATURAL GAS WITHIN A STATE AND TRANSMITTING OR
SELLING IT FOR CONSUMPTION SOLELY WITHIN THE SAME STATE.  68 STAT. 36,
15 U.S.C. SEC 717(C).  A PROPOSAL WHICH WOULD HAVE SIMILARLY LIMITED
FPC JURISDICTION IN THE ELECTRIC POWER FIELD DIED IN COMMITTEE.  SEE
HEARINGS BEFORE HOUSE SUBCOMMITTEE OF THE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE ON H.R. 2972 AND 2973, 80TH CONG., 1ST SESS. 

FN10  THE SECRETARY OF THE INTERIOR HAD THEN AS HE HAS NOW THE DUTY TO
FIX THE RATES AT WHICH HE SELLS HOOVER ENERGY TO ENABLE THE UNITED
STATES TO RECOUP THE COSTS OF BUILDING THE DAM AND ASSOCIATED
FACILITIES.  BOULDER CANYON PROJECT ACT, DEC. 21, 1928, C. 42, SECS
4(B), 5, 45 STAT. 1057, 1059, 1060, 43 U.S.C. SECS 617CB) 617D; BOULDER
CANYON PROJECT ADJUSTMENT ACT, JULY 19, 1940, C. 643, SEC 1, 54 STAT.
774, 43 U.S.C. SEC 618.  SECTION 201(F) OF THE FEDERAL POWER ACT
EXEMPTS THE SECRETARY'S SALE OF ENERGY FROM FPC JURISDICTION BUT OUR
CONCERN IN THIS CASE IS NOT WITH THE SECRETARY'S SALES TO EDISON BUT
WITH EDISON'S RESALE TO COLTON. 

FN11  AS ORIGINALLY INTRODUCED, THE BILL CONTAINED NO REFERENCE TO
THE REGULATION OF RESALES OF HOOVER ENERGY.  COMPARE H.R. 6251, 69TH
CONG., 1ST SESS. (1925), WITH H.R. 5773, 70TH CONG., 1ST SESS. (1927). 
THE SECRETARY OF THE FEDERAL POWER COMMISSION PRESENTED HIS VIEWS IN
LETTER FORM TO THE SENATE COMMITTEE ON IRRIGATION, AND WARNED THAT
"THERE IS NO REQUIREMENT THAT ANY FEDERAL AGENCY SHALL, IN ABSENCE OF
STATE REGULATION OR OF INTERSTATE AGREEMENT, HAVE ANY JURISDICTION TO
REGULATE RATES, SERVICES, OR SECURITY ISSUES OF LESSEES, WHETHER THE
POWER DEVELOPED BE OR BE NOT TRANSMITTED IN INTERSTATE COMMERCE."  SEE
HEARINGS BEFORE THE SENATE COMMITTEE ON IRRIGATION AND RECLAMATION ON
S. RES. NO. 320, 69TH CONG., 1ST SESS., PT. 6, AT 893 (1925). 

THE PRESENT FORM OF SEC 6 IS GENERALLY CONCEDED TO BE THE RESULT OF
THIS LETTER, AND IT IS THUS APPARENT THAT, FAR FROM BEING AN
AFFIRMATIVE GRANT OF POWER TO THE STATES, THAT SECTION ONLY REFERRED TO
STATE POWER AS A MEANS OF DEFINING THE CONTINGENCY UPON WHICH FEDERAL
POWER WOULD BE ASSERTED. 

FN12  THERE IS NO MERIT IN THE ARGUMENT THAT THE FAILURE OF CONGRESS
EXPRESSLY TO REPEAL THIS PORTION OF SEC 6 WHEN PASSING THE BOULDER
CANYON PROJECT ADJUSTMENT ACT IN 1940, 54 STAT. 774, AS AMENDED, 43
U.S.C. SECS 618-618P, AND THE ACT OF MAY 28, 1954, C. 241, 68 STAT.
143, EVINCES A CONGRESSIONAL INTENTION THAT THE SECRETARY AND NOT THE
FPC REGULATE WHOLESALE RATES.  THE 1940 ACT MODIFIED THE METHOD BY
WHICH THE SECRETARY WAS TO FIX THE RATES AT WHICH HE SELLS BOULDER
CANYON ENERGY BUT HAD NO BEARING UPON THE REGULATION OF SUBSEQUENT
SALES.  SEE H.R. REP. NO. 2328, 76TH CONG., 3D SESS. (1940). 
..END :



















LORD V. WINCHESTER STAR 376 U.S. 221 


NO. 732.  DECIDED MARCH 2, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 346 MASS. 764, 190 N.E.2D 875. 


LORD V. WINCHESTER STAR ET AL. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















KREZNAR V. UNITED STATES 376 U.S. 221 


NO. 85.  DECIDED MARCH 2, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED. 


KREZNAR ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
CLAIMS. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  GREENE V. UNITED STATES, ANTE, P. 149. 

MR. JUSTICE HARLAN DISSENTS FOR THE REASONS STATED IN HIS DISSENTING
OPINION IN GREENE V. UNITED STATES, ANTE, P. 164. 
..END :













MARTIN, SECRETARY OF STATE OF TEXAS V. BUSH 376 U.S. 222 


NO. 675.  DECIDED MARCH 2, 1964.  - 224 F. SUPP. 499, AFFIRMED. 


JUDGMENT AFFIRMED ON AUTHORITY OF WESBERRY V. SANDERS, ANTE, P. 1,
WITHOUT PREJUDICE TO APPELLANTS' RIGHT TO APPLY TO DISTRICT COURT BY
APRIL 1, 1964, FOR FURTHER EQUITABLE RELIEF. 

MARTIN, SECRETARY OF STATE OF TEXAS, ET AL. V. BUSH ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF TEXAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED ON THE
AUTHORITY OF WESBERRY V. SANDERS, ANTE, P. 1, WITHOUT PREJUDICE TO THE
RIGHT OF THE APPELLANTS TO APPLY BY APRIL 1, 1964, TO THE DISTRICT
COURT FOR FURTHER EQUITABLE RELIEF IN LIGHT OF THE PRESENT
CIRCUMSTANCES INCLUDING THE IMMINENCE OF THE FORTHCOMING ELECTION AND
"THE OPERATION OF THE ELECTION MACHINERY OF TEXAS" NOTED BY THE
DISTRICT COURT IN ITS OPINION.*  THE STAY HERETOFORE GRANTED BY MR.
JUSTICE BLACK IS CONTINUED IN EFFECT PENDING TIMELY APPLICATION FOR THE
FOREGOING RELIEF AND FINAL DISPOSITION THEREOF BY THE DISTRICT COURT. 

*224 F. SUPP. 499, 513. 

MR. JUSTICE CLARK JOINS THIS DISPOSITION, BUT UPON THE GROUNDS STATED
IN HIS SEPARATE OPINION IN WESBERRY V. SANDERS, ANTE, P. 18. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART WOULD REVERSE THE JUDGMENT
BELOW FOR THE REASONS STATED IN THEIR DISSENTING OPINIONS IN WESBERRY
V. SANDERS, ANTE, PP. 20, 50. 
..END :


















HONEYWOOD V. ROCKEFELLER, GOVERNOR OF NEW YORK 376 U.S. 222 


NO. 267.  DECIDED MARCH 2, 1964.  - 214 F. SUPP. 897, AFFIRMED. 


HONEYWOOD ET AL. V. ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF NEW YORK. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED.  WRIGHT
V. ROCKEFELLER, ANTE, P. 52. 
..END :

















CITY OF SEATTLE V. BEEZER 376 U.S. 224 


NO. 677.  DECIDED MARCH 2, 1964.  - APPEAL DISMISSED; CERTIORARI
GRANTED; AND JUDGMENT REVERSED.  - REPORTED BELOW:  62 WASH. 2D 569,
383 P.2D 895. 


CITY OF SEATTLE ET AL. V. BEEZER ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS GRANTED AND THE
JUDGMENT IS REVERSED.  CITY OF TACOMA V. TAXPAYERS OF TACOMA, 357 U.S.
320. 
..END :













UNITED STATES V. MERZ 376 U.S. 192 


NO. 65.  ARGUED JANUARY 13-14, 1964.  - DECIDED FEBRUARY 24, 1964.* -
306 F.2D 39, REVERSED; 310 F.2D 775, MODIFIED AND REMANDED. 

*TOGETHER WITH NO. 79, 2,872.88 ACRES OF LAND ET AL. V. UNITED
STATES, ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT, ARGUED JANUARY 14, 1964. 


UNDER RULE 71AH) OF THE FEDERAL RULES OF CIVIL PROCEDURE, COMMISSIONS
WERE APPOINTED BY DISTRICT COURTS TO DETERMINE THE ISSUE OF JUST
COMPENSATION IN EMINENT DOMAIN PROCEEDINGS.  FOLLOWING HEARINGS,
REPORTS WERE FILED BY THE COMMISSIONERS, WHICH THE DISTRICT COURT
ADOPTED IN EACH INSTANCE, THOUGH THE REPORTS DID NOT DISCLOSE THE BASIS
ON WHICH THE AWARDS WERE REACHED.  ONE COURT OF APPEALS AFFIRMED,
FINDING THE AWARDS WELL WITHIN THE RANGE OF CONFLICTING TESTIMONY
DESPITE A SHARP EVIDENTIARY CONFLICT AS TO THE AMOUNT OF DAMAGES.  THE
OTHER COURT OF APPEALS REMANDED FOR RESUBMISSION TO THE COMMISSIONERS
SINCE THE REPORTS DID NOT INDICATE WHICH EVIDENCE THEY CREDITED; THE
DEGREE TO WHICH THE AWARDS WERE BASED ON THE TESTIMONY OF COMPARABLE
SALES (OR WHETHER THE SALES WERE, IN FACT, COMPARABLE); NOR TO WHAT
EXTENT THE AWARDS DEPENDED ON OPINIONS OF NONEXPERT WITNESSES.  HELD: 

1.  THE BASIS OF ULTIMATE FINDINGS OF VALUE IN AN EMINENT DOMAIN
PROCEEDING MUST BE CLEARLY DISCLOSED IN THE REPORT OF A COMMISSION
APPOINTED UNDER RULE 71AH), CONCLUSORY FINDINGS ALONE BEING
INSUFFICIENT FOR PROPER JUDICIAL REVIEW.  PP. 193-200. 

2.  WHERE A COMMISSION IS APPOINTED UNDER RULE 71AH), CAREFUL
PROCEDURES MUST BE OBSERVED TO ENSURE THAT IT ACTS AS A DELIBERATIVE
BODY APPLYING CONSTITUTIONAL STANDARDS.  PP. 197-200. 

(A)  THE DISTRICT COURT SHOULD CAREFULLY INSTRUCT THE COMMISSIONERS
ON THE LAW, QUALIFICATIONS OF EXPERT WITNESSES, EVIDENCE, THE MANNER
AND METHOD OF CONDUCTING THE HEARING, AND THE KIND OF REPORT TO BE
FILED.  PP. 198-199. 

(B)  THE PARTIES SHOULD STATE THEIR OBJECTIONS TO THE INSTRUCTIONS
AND TO THE REPORT IN TIMELY AND SPECIFIC FORM.  P. 199. 

(C)  THE DISTRICT COURT MAY THEN ADOPT THE REPORT, MODIFY IT ON THE
BASIS OF THE RECORD, REJECT IT IN WHOLE OR IN PART, RECEIVE FURTHER
EVIDENCE, OR RECOMMIT IT WITH INSTRUCTIONS, ALL AS PROVIDED IN RULE
53(E)(2).  PP. 199-200. 

UNITED STATES V. MERZ ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT QUESTIONS CONCERNING THE STANDARDS GOVERNING THE
PREPARATION AND REVIEW OF REPORTS OF COMMISSIONS APPOINTED BY DISTRICT
COURTS UNDER RULE 71AH) OF THE FEDERAL RULES OF CIVIL PROCEDURE (FN1)
TO DETERMINE THE ISSUE OF JUST COMPENSATION (FN2) IN EMINENT DOMAIN
PROCEEDINGS.  SOME OF THE PROPERTY INTERESTS TAKEN ARE FEE INTERESTS
AND SOME ARE FLOWAGE EASEMENTS, ROAD EASEMENTS, AND CLEARANCE
EASEMENTS. 

IN NO. 79 THE DISTRICT COURT INSTRUCTED THE COMMISSIONERS ON THE
STANDARDS OF "JUST COMPENSATION," THE FACTORS THAT COULD BE CONSIDERED
IN DETERMINING IT, THE WEIGHT TO BE GIVEN THE OPINION OF COMPETENT
EXPERTS, THE BURDEN OF PROOF, THE CONDUCT OF THE HEARING TO BE HELD,
AND THE PROPRIETY OF VIEWING THE LANDS IN QUESTION.  AND THEY WERE
INSTRUCTED TO FILE A WRITTEN REPORT "SETTING FORTH SEPARATELY YOUR
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND THE AMOUNT OF JUST
COMPENSATION TO WHICH YOU THINK EACH PROPERTY OWNER OR CLAIMANT IS
ENTITLED." 

IN NO. 65 THE DISTRICT COURT GAVE NO INSTRUCTIONS TO THE
COMMISSIONERS, SO FAR AS THE RECORD SHOWS. 

THE HEARING IN EACH CASE WAS TRANSCRIBED BY A REPORTER.  IN EACH,
BOTH THE LANDOWNERS AND THE GOVERNMENT PRODUCED WITNESSES.  IN NO. 65
THE EFFECT OF CLEARANCE EASEMENTS ON AGRICULTURAL USES AND ON MINERAL
VALUES WAS CONTESTED.  IN NO. 79 THE TESTIMONY WAS WIDELY AT VARIANCE
ON THE VALUE OF THE FEES.  SEVERANCE DAMAGES WERE ALSO HOTLY
CONTESTED.  THE VALUE OF IMPROVEMENTS WAS ALSO AT ISSUE AS RESPECTS ONE
PROPERTY. 

IN NO. 65 THE COMMISSION FILED A REPORT IN WHICH IT LISTED EACH
TRACT, FOLLOWING WHICH IT ADDED A DOLLAR FIGURE FOR "DAMAGES
ASSESSED."  THE GOVERNMENT OBJECTED TO THE ADEQUACY OF THE REPORT, AS A
RESULT OF WHICH A SUPPLEMENTAL ONE WAS FILED WHICH DESCRIBED IN GREATER
DETAIL THE CLEARANCE EASEMENTS TAKEN AND STATED THAT THE HIGHEST AND
BEST USE OF THE LAND WAS FOR GENERAL AGRICULTURAL PURPOSES.  THE
SUPPLEMENTAL REPORT ADDED THAT: (1) THE UNITED STATES WAS ENTITLED TO
TAKE THE PROPERTY AND THE LANDOWNERS WERE ENTITLED TO JUST
COMPENSATION; (2) JUST COMPENSATION WAS TO BE DETERMINED BY SUBTRACTING
THE VALUE OF THE LANDOWNERS' INTERESTS IMMEDIATELY AFTER THE TAKING
FROM THEIR VALUE IMMEDIATELY BEFORE THE TAKING; (3) THE USE TO WHICH
THE GOVERNMENT WOULD PUT THE AREA TAKEN BY THE CLEARANCE EASEMENTS WAS
NOT AN ISSUE IN THE CASE; AND (4) CERTAIN EVIDENCE PERTAINING TO A
TRACT TAKEN IN FEE SIMPLE WAS STRIKEN, AND THE GOVERNMENT'S MOTION TO
STRIKE THE TESTIMONY OF ONE WITNESS FOR THE LANDOWNERS WAS OVERRULED. 

IN NO. 79 THREE REPORTS, ONE COVERING EACH LANDOWNER, WERE FILED. 
EACH REPORT CONTAINED CAPSULE RESUMES OF ALL TESTIMONY HEARD, AND, AS
FINDINGS OF FACT, SET FORTH A DESCRIPTION OF THE INTERESTS TAKEN, THE
LANDS' HIGHEST AND BEST USE, THE ACREAGE REMAINING AFTER THE TAKING AND
THE AMOUNT OF SEVERANCE DAMAGE TO IT, THE VALUE OF THE FEES TAKEN AND
OF EACH EASEMENT, AND THE TOTAL AWARDS.  EACH REPORT ALSO STATED THAT
THE UNITED STATES HAD THE RIGHT TO TAKE THE LAND AND THAT THE
LANDOWNERS WERE ENTITLED TO JUST COMPENSATION, INCLUDING SEVERANCE
DAMAGES.  ONE REPORT STATED THAT A GOVERNMENT OBJECTION TO CERTAIN
EVIDENCE HAD BEEN OVERRULED.  THE FIRST REPORT, IN ADDITION TO PLACING
A LUMP SUM VALUE ON THE FEE INTEREST TAKEN, ALLOWED NO SEVERANCE DAMAGE
FOR THE "HOME PLACE," FOUR MILES AWAY, AND YET GRANTED $15,785
SEVERANCE DAMAGES TO OTHER PORTIONS OF THE REMAINING TRACT WITHOUT
EXPLICATION AND IN SPITE OF THE FACT THAT THE LANDOWNER'S EXPERT FIXED
SEVERANCE DAMAGES, APART FROM THE "HOME PLACE," AT $12,435.  IN THE
SECOND REPORT THE LANDOWNER'S EXPERT WITNESS VALUED THE ENTIRE TRACT AT
$52,500, THE LAND TAKEN AT $36,125, AND IMPROVEMENTS AT $12,700.  THE
GOVERNMENT'S EXPERTS DID NOT VALUE IMPROVEMENTS SEPARATELY BUT ASSESSED
THE FEE INTEREST TAKEN AT $34,000.  THE COMMISSION, WITHOUT ANY
FINDINGS CONCERNING IMPROVEMENTS, AWARDED $52,950 - A SUM IN EXCESS OF
THE VALUATION PLACED ON THE FULL 400 ACRES BY THE LANDOWNER'S EXPERT -
AS COMPENSATION FOR TAKING ABOUT 330 ACRES.  AND IT AWARDED $3,500 FOR
SEVERANCE DAMAGES THOUGH THE HIGHEST ESTIMATE WAS $1,275.  THE THIRD
REPORT VALUED LANDS AT $105,080 WHILE THE LANDOWNER'S OWN EXPERT VALUED
THEM AT $93,693.  THE COMMISSION ALSO AWARDED SEVERANCE DAMAGES WITHOUT
ANY INDICATION AS TO THE BASIS FOR THEM. 

IN BOTH NO. 65 AND NO. 79, THE DISTRICT COURTS ADOPTED THE
COMMISSIONS' REPORTS, SETTING FORTH NO ADDITIONAL OR SUPPLEMENTARY
GROUND OF DECISION NOR TAKING FURTHER EVIDENCE TO RESOLVE ANY OF THE
OBJECTIONS TENDERED BY THE GOVERNMENT.  IN NO. 65 THE COURT OF APPEALS
AFFIRMED, STATING THAT, ALTHOUGH THERE WAS A SHARP CONFLICT IN THE
EVIDENCE AS TO THE AMOUNT OF THE DAMAGES, THE AWARDS WERE WELL WITHIN
THE RANGE OF THE CONFLICTING TESTIMONY.  306 F.2D 39, 42.  IN NO. 79
THE COURT OF APPEALS REMANDED FOR RESUBMISSION TO THE COMMISSIONERS,
SAYING THAT THE REPORTS DID NOT INDICATE WHICH EVIDENCE THE COMMISSION
CREDITED AND WHICH IT DISCREDITED, THE DEGREE TO WHICH THE AWARDS WERE
BASED ON THE TESTIMONY OF COMPARABLE SALES, WHETHER THE SALES WERE IN
FACT COMPARABLE, AND TO WHAT EXTENT THE AWARDS DEPENDED ON THE OPINIONS
OF NONEXPERT WITNESSES.  310 F.2D 775, 777, 779.  THE CASES ARE HERE ON
WRITS OF CERTIORARI.  372 U.S. 974, 975. 

THE USE OF A COMMISSION TO RESOLVE THE ISSUE OF JUST COMPENSATION IS
JUSTIFIED BY THE FACILITY WITH WHICH COMMISSIONERS MAY INSPECT THE
PROPERTY AND A LIKELIHOOD THAT UNIFORMITY OF AWARDS MAY BE REALIZED
EXPEDITIOUSLY.  AT THE SAME TIME, THERE IS DANGER THAT COMMISSIONERS,
UNLIKE JURIES, MAY USE THEIR OWN EXPERTISE AND NOT ACT AS A
DELIBERATIVE BODY APPLYING CONSTITUTIONAL STANDARDS.  A JURY, UNTIL IT
RETIRES, SITS UNDER THE DIRECT SUPERVISION OF THE JUDGE, WHO RULES ON
THE ADMISSIBILITY OF EVIDENCE, WHO SEES THAT WITNESSES ARE PROPERLY
QUALIFIED AS EXPERTS, AND WHO POLICES THE ENTIRE HEARING, KEEPING IT
WITHIN BOUNDS.  THEN IN DUE COURSE THE JUDGE INSTRUCTS THE JURY ON THE
LAW, ANSWERING ANY INQUIRIES ITS MEMBERS MAY HAVE ON THE LAW.  THE JURY
IS UNDER SURVEILLANCE FROM START TO FINISH AND SUBJECT TO JUDICIAL
CONTROL.  HENCE ITS GENERAL VERDICT THAT THE LAND IS WORTH SO MANY
DOLLARS IS NOT OVERTURNED FOR LACK OF PARTICULARIZED FINDINGS. 

THE JUDGE WHO USES COMMISSIONERS HOWEVER, ESTABLISHES A TRIBUNAL THAT
MAY BECOME FREE-WHEELING, TAKING THE LAW FROM ITSELF, UNLESS SUBJECT TO
CLOSE SUPERVISION.  THE FIRST RESPONSIBILITY OF THE DISTRICT COURT,
APART FROM THE SELECTION OF RESPONSIBLE COMMISSIONERS, IS CAREFUL
INSTRUCTION OF THEM ON THE LAW.  THAT WAS DONE IN ONE OF THE PRESENT
CASES.  BUT THE INSTRUCTIONS SHOULD EXPLAIN WITH SOME PARTICULARITY THE
QUALIFICATIONS OF EXPERT WITNESSES, THE WEIGHT TO BE GIVEN OTHER
OPINION EVIDENCE, COMPETENT EVIDENCE OF VALUE, THE BEST EVIDENCE OF
VALUE, ILLUSTRATIVE EXAMPLES OF SEVERANCE DAMAGES, AND THE LIKE.  THE
COMMISSIONERS SHOULD BE INSTRUCTED AS TO THE MANNER OF THE HEARING AND
THE METHOD OF CONDUCTING IT, OF THE RIGHT TO VIEW THE PROPERTY, AND OF
THE LIMITED PURPOSE OF VIEWING.  THEY SHOULD BE INSTRUCTED ON THE KIND
OF EVIDENCE THAT IS INADMISSIBLE AND THE MANNER OF RULING ON IT. 

THE COMMISSIONERS SHOULD ALSO BE INSTRUCTED AS TO THE KIND OF REPORT
TO BE FILED.  SINCE BY RULE 71AH) THE REPORT HAS THE EFFECT OF A
MASTER'S FINDINGS OF FACT UNDER RULE 53(E)(2), THE COMMISSION SHOULD BE
INSTRUCTED AS TO WHAT KIND OF FINDINGS SHOULD BE INCLUDED.  CONCLUSORY
FINDINGS ARE ALONE NOT SUFFICIENT, FOR THE COMMISSION'S FINDINGS SHALL
BE ACCEPTED BY THE COURT "UNLESS CLEARLY ERRONEOUS"; AND CONCLUSORY
FINDINGS AS MADE IN THESE CASES ARE NORMALLY NOT REVIEWABLE BY THAT
STANDARD, EVEN WHEN THE DISTRICT COURT READS THE RECORD, FOR IT WILL
HAVE NO WAY OF KNOWING WHAT PATH THE COMMISSIONERS TOOK THROUGH THE
MAZE OF CONFLICTING EVIDENCE.  SEE UNITED STATES V. LEWIS, 308 F.2D
453, 458.  THE COMMISSIONERS NEED NOT MAKE DETAILED FINDINGS SUCH AS
JUDGES DO WHO TRY A CASE WITHOUT A JURY.  COMMISSIONERS, WE ASSUME,
WILL NORMALLY BE LAYMEN, INEXPERIENCED IN THE LAW.  BUT LAYMEN CAN BE
INSTRUCTED TO REVEAL THE REASONING THEY USE IN DECIDING ON A PARTICULAR
AWARD, WHAT STANDARD THEY TRY TO FOLLOW, WHICH LINE OF TESTIMONY THEY
ADOPT, WHAT MEASURE OF SEVERANCE DAMAGES THEY USE, AND SO ON.  WE DO
NOT SAY THAT EVERY CONTESTED ISSUE RAISED ON THE RECORD BEFORE THE
COMMISSION MUST BE RESOLVED BY A SEPARATE FINDING OF FACT.  WE DO NOT
SAY THAT THERE MUST BE AN ARRAY OF FINDINGS OF SUBSIDIARY FACTS TO
DEMONSTRATE THAT THE ULTIMATE FINDING OF VALUE IS SOUNDLY AND LEGALLY
BASED.  THE PATH FOLLOWED BY THE COMMISSIONERS IN REACHING THE AMOUNT
OF THE AWARD CAN, HOWEVER, BE DISTINCTLY MARKED.  SUCH A REQUIREMENT IS
WITHIN THE COMPETENCE OF LAYMEN; AND LAYMEN, LIKE JUDGES, (FN3) WILL
GIVE MORE CAREFUL CONSIDERATION TO THE PROBLEM IF THEY ARE REQUIRED TO
STATE NOT ONLY THE END RESULT OF THEIR INQUIRY, BUT THE PROCESS BY
WHICH THEY REACHED IT.  (FN4) 

MOREOVER, THE LITIGANTS HAVE A RESPONSIBILITY TO ASSIST THE PROCESS
BY SPECIFYING THEIR OBJECTIONS TO INSTRUCTIONS, BY OFFERING ALTERNATE
ONES, AND BY MAKING THEIR TIMELY OBJECTIONS TO THE REPORT IN SPECIFIC,
RATHER THAN IN GENERALIZED FORM, AS REQUIRED BY EQUITY PRACTICE.  SEE
SHEFFIELD & BIRMINGHAM R. CO. V. GORDON, 151 U.S. 285, 290, 291. 

IF THOSE PROCEDURES ARE FOLLOWED AND THE DISTRICT COURT ADOPTS THE
REPORT, AS IT MAY UNDER RULE 53(E)(2), THE COURT OF APPEALS WILL HAVE
SOME GUIDELINES TO HELP IT DETERMINE WHETHER THE REPORT IS "CLEARLY
ERRONEOUS" WITHIN THE MEANING OF RULE 53(E)(2).  IF THE USE OF THOSE
GUIDELINES BY THE DISTRICT COURT LEAVES IT IN DOUBT, THERE ARE
ALTERNATIVES.  IT MAY "MODIFY" THE REPORT ON THE BASIS OF THE RECORD
MADE BEFORE THE COMMISSIONERS, OR IT "MAY REJECT IT IN WHOLE OR IN PART
OR MAY RECEIVE FURTHER EVIDENCE OR MAY RECOMMIT IT WITH INSTRUCTIONS" -
ALL AS PROVIDED IN RULE 53(E)(2).  WE THINK THE DISTRICT COURT IN EACH
OF THESE CASES SHOULD HAVE THE OPPORTUNITY UNDER RULE 53(E)(2) TO MAKE
ITS DECISION AFRESH, IN LIGHT OF THIS OPINION.  WE WRITE ON A CLEAN
SLATE AGAINST A BACKGROUND OF A CONTRARIETY OF VIEWS AMONG THE
CIRCUITS.  THE REPORTS IN EACH OF THESE CASES LEAVE MUCH TO BE DESIRED,
MEASURED BY THE STANDARDS WE HAVE SUGGESTED.  NONE OF THE REPORTS
SHOULD HAVE BEEN ADOPTED WITHOUT MORE BY THE DISTRICT COURT.  ON
REMAND, ITS INFORMED DISCRETION WILL BE USED TO DETERMINE WHETHER THE
MATTERS SHOULD BE RESUBMITTED IN WHOLE OR IN PART TO THE RESPECTIVE
COMMISSIONERS OR WHETHER, IN LIGHT OF THE EXIGENCIES OF THE PARTICULAR
CASE, THE COURT SHOULD ITSELF RESOLVE THE DISPUTES ON THE EXISTING
RECORDS, (FN5) OR ON THOSE RECORDS AS SUPPLEMENTED BY FURTHER
EVIDENCE.  (FN6) 

THE JUDGMENT IN NO. 65 IS REVERSED AND THE JUDGMENTS IN NO. 79 ARE
MODIFIED AND EACH IS REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  RULE 71AH) PROVIDES: 

(H)  TRIAL. 

"IF THE ACTION INVOLVES THE EXERCISE OF THE POWER OF EMINENT DOMAIN
UNDER THE LAW OF THE UNITED STATES, ANY TRIBUNAL SPECIALLY CONSTITUTED
BY AN ACT OF CONGRESS GOVERNING THE CASE FOR THE TRIAL OF THE ISSUE OF
JUST COMPENSATION SHALL BE THE TRIBUNAL FOR THE DETERMINATION OF THAT
ISSUE; BUT IF THERE IS NO SUCH SPECIALLY CONSTITUTED TRIBUNAL ANY PARTY
MAY HAVE A TRIAL BY JURY OF THE ISSUE OF JUST COMPENSATION BY FILING A
DEMAND THEREFOR WITHIN THE TIME ALLOWED FOR ANSWER OR WITHIN SUCH
FURTHER TIME AS THE COURT MAY FIX, UNLESS THE COURT IN ITS DISCRETION
ORDERS THAT, BECAUSE OF THE CHARACTER, LOCATION, OR QUANTITY OF THE
PROPERTY TO BE CONDEMNED, OR FOR OTHER REASONS IN THE INTEREST OF
JUSTICE, THE ISSUE OF COMPENSATION SHALL BE DETERMINED BY A COMMISSION
OF THREE PERSONS APPOINTED BY IT.  IF A COMMISSION IS APPOINTED IT
SHALL HAVE THE POWERS OF A MASTER PROVIDED IN SUBDIVISION (C) OF RULE
53 AND PROCEEDINGS BEFORE IT SHALL BE GOVERNED BY THE PROVISIONS OF
PARAGRAPHS (1) AND (2) OF SUBDIVISION (D) OF RULE 53.  ITS ACTION AND
REPORT SHALL BE DETERMINED BY A MAJORITY AND ITS FINDINGS AND REPORT
SHALL HAVE THE EFFECT, AND BE DEALT WITH BY THE COURT IN ACCORDANCE
WITH THE PRACTICE, PRESCRIBED IN PARAGRAPH (2) OF SUBDIVISION (E) OF
RULE 53.  TRIAL OF ALL ISSUES SHALL OTHERWISE BE BY THE COURT." 

RULE 53 PROVIDES IN RELEVANT PART: 

"(E)  REPORT. 

     *         *         * *         * 

"(2)  IN NON-JURY ACTIONS.  IN AN ACTION TO BE TRIED WITHOUT A JURY
THE COURT SHALL ACCEPT THE MASTER'S FINDINGS OF FACT UNLESS CLEARLY
ERRONEOUS.  WITHIN 10 DAYS AFTER BEING SERVED WITH NOTICE OF THE FILING
OF THE REPORT ANY PARTY MAY SERVE WRITTEN OBJECTIONS THERETO UPON THE
OTHER PARTIES.  APPLICATION TO THE COURT FOR ACTION UPON THE REPORT AND
UPON OBJECTIONS THERETO SHALL BE BY MOTION AND UPON NOTICE AS
PRESCRIBED IN RULE 6(D).  THE COURT AFTER HEARING MAY ADOPT THE REPORT
OR MAY MODIFY IT OR MAY REJECT IT IN WHOLE OR IN PART OR MAY RECEIVE
FURTHER EVIDENCE OR MAY RECOMMIT IT WITH INSTRUCTIONS."    AS TO THE
HISTORY OF RULE 71AH) SEE 7 MOORE, FEDERAL PRACTICE (2D ED. 1955), PP.
2709-2712; NEALY, RULE 71AH) IN FEDERAL CONDEMNATION PROCEEDINGS, 23
FED. BAR JOUR.  45 (1963); H.R. REP. NO. 739, 82D CONG., 1ST SESS.; S.
REP. NO. 502, 82D CONG., 1ST SESS.; S. REP. NO. 112, 83D CONG., 1ST
SESS.; PRELIMINARY DRAFT OF PROPOSED RULE TO GOVERN CONDEMNATION CASES,
ADVISORY COMMITTEE ON RULES FOR CIVIL PROCEDURE, JUNE 1947. 

FOR THE RULE IN OPERATION SEE ANNUAL REPORT, JUDICIAL CONFERENCE OF
THE UNITED STATES, 1961, PP. 17, 106, 254; ANNUAL REPORT, JUDICIAL
CONFERENCE OF THE UNITED STATES, 1962, PP. 30, 212-214; H.R. REP. NO.
1467, 86TH CONG., 2D SESS., P. 11.    FN2  NO QUESTION IS PRESENTED
CONCERNING THE RIGHT TO JURY TRIAL NOTWITHSTANDING RULE 71AH).  WHILE
THE GOVERNMENT ASKED FOR A JURY TRIAL IN BOTH CASES, THE QUESTION WAS
NOT PRESERVED NOR BROUGHT HERE. 

FN3  SEE BURLINGTON TRUCK LINES, INC., V. UNITED STATES, 371 U.S.
156, 167-168; UNITED STATES V. FORNESS, 125 F.2D 928, 942-943; UNITED
STATES V. LEWIS, 308 F.2D 453, 456. 

FN4  THE HAGUE CONVENTION OF OCTOBER 18, 1907, BY ARTICLE 79 PROVIDED
THAT AN ARBITRATION AWARD "MUST GIVE THE REASONS ON WHICH IT IS
BASED."  CHIEF JUSTICE HUGHES - THEN SECRETARY OF STATE - SAID IN A
CASE INVOLVING THAT PROVISION:  IT "DOES NOT MEAN THAT THE STATEMENT OF
REASONS MUST BE CAST IN ANY ARTIFICIAL FORM, MUCH LESS THAT THE REASONS
GIVEN SHOULD BE THOSE WHICH THE DEFEATED PARTY WOULD RECOGNIZE AS
ADEQUATE."  THE SECRETARY OF STATE TO PRESIDENT HARDING, JAN. 11, 1923,
II FOREIGN RELATIONS OF THE UNITED STATES, 1923, PP. 617, 620. 

FN5  SEE UNITED STATES V. 44 ACRES OF LAND, 234 F.2D 410, 414; UNITED
STATES V. TWIN CITY POWER CO., 248 F.2D 108, 112; UNITED STATES V.
CERTAIN INTERESTS IN PROPERTY, 296 F.2D 264, 268; UNITED STATES V.
CARROLL, 304 F.2D 300, 303-304. 

FN6  SEE UNITED STATES V. CARROLL, SUPRA, 303-304. 
..END :















DIAMOND V. LOUISIANA 376 U.S. 201 


NO. 100.  ARGUED FEBRUARY 20, 1964.  - DECIDED FEBRUARY 24, 1964.  -
CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED. 


DIAMOND V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 
..END :


















DOUGHTY V. MAXWELL, WARDEN 376 U.S. 202 


NO. 422, MISC.  DECIDED FEBRUARY 24, 1964.  - CERTIORARI GRANTED AND
JUDGMENT REVERSED.  - REPORTED BELOW:  175 OHIO ST. 46, 191 N.E.2D
727. 


DOUGHTY V. MAXWELL, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED.  CARNLEY
V. COCHRAN, 369 U.S. 506, GIDEON V. WAINWRIGHT, 372 U.S. 335. 
..END :















NEILL V. COOK 376 U.S. 202 


NO. 691.  DECIDED FEBRUARY 24, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


NEILL ET AL. V. COOK ET AL. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WOLFSOHN, EXECUTRIX V. HANKIN 376 U.S. 203 


NO. 680.  DECIDED FEBRUARY 24, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW: 116 U.S. APP. D.C. 127, 321 F.2D 393. 


WOLFSOHN, EXECUTRIX, V. HANKIN ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  HARRIS TRUCK LINES, INC., V. CHERRY MEAT PACKERS, INC., 371
U.S. 215; THOMPSON V. IMMIGRATION AND NATURALIZATION SERVICE, 375 U.S.
384. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE HARLAN, MR. JUSTICE STEWART AND
MR. JUSTICE WHITE JOIN, DISSENTING. 

I HAVE CONCLUDED THAT HARRIS TRUCK LINES V. CHERRY MEAT PACKERS, 371
U.S. 215 (1962), SHOULD BE CONFINED TO ITS PECULIAR FACTS, I.E., A
FINDING OF "EXCUSABLE NEGLECT" UNDER RULE 73(A) OF THE FEDERAL RULES OF
CIVIL PROCEDURE.  I SAY THIS, ALTHOUGH I JOINED HARRIS, BECAUSE THE
COURT HAS USED HARRIS TO SPAWN THE PRESENT HOPELESS CONFUSION WHICH I
NEVER CONTEMPLATED AT THE TIME OF ITS DECISION.  HARRIS WAS THE
AUTHORITY UPON WHICH THE COURT RESTED THOMPSON V. IMMIGRATION AND
NATURALIZATION SERVICE, 375 U.S. 384 (1964), DESPITE THE FACT THAT
THOMPSON INVOLVED RULES 52(B) AND 59(B) AND (E) WITH THEIR SPECIFIC
REQUIREMENTS THAT THE MOTION MUST BE MADE OR SERVED NOT LATER THAN 10
DAYS AFTER THE ENTRY OF JUDGMENT.  THE COURT BRUSHED ASIDE THESE
EXPRESS AND UNAMBIGUOUS MANDATES OF CONGRESS WITH THE ASSERTION THAT
THOMPSON "FITS SQUARELY WITHIN THE LETTER AND SPIRIT OF HARRIS."   375
U.S. 384, 387.  AND NOW COMES A THIRD CASE, INVOLVING THE SAME RULE
59(B), WHICH FURTHER COMPOUNDS THE SUBVERSION OF THE RULES.  IT APPEARS
CLEAR TO ME THAT THROUGH HARRIS THIS COURT HAS GIVEN TRIAL JUDGES THE
DE FACTO POWER TO GRANT EXTENSIONS OF TIME, DIRECTLY CONTRA TO THE
DEFINITE REQUIREMENTS OF RULES 52(B) AND 59 AND THE COMMAND OF RULE
6(B) THAT THE COURT "MAY NOT EXTEND THE TIME FOR TAKING ANY ACTION
UNDER RULES  ...  52(B), 59(B), (D) AND (E)  ...  ."  I THEREFORE
RESPECTFULLY DISSENT .
..END :











WESBERRY V. SANDERS, GOVERNOR OF GEORGIA 376 U.S. 1 


NO. 22.  ARGUED NOVEMBER 18-19, 1963.  - DECIDED FEBRUARY 17, 1964.  -
206 F. SUPP. 276, REVERSED AND REMANDED. 


APPELLANTS ARE QUALIFIED VOTERS IN GEORGIA'S FIFTH CONGRESSIONAL
DISTRICT, THE POPULATION OF WHICH IS TWO TO THREE TIMES GREATER THAN
THAT OF SOME OTHER CONGRESSIONAL DISTRICTS IN THE STATE.  SINCE THERE
IS ONLY ONE CONGRESSMAN FOR EACH DISTRICT, APPELLANTS CLAIMED
DEBASEMENT OF THEIR RIGHT TO VOTE RESULTING FROM THE 1931 GEORGIA
APPORTIONMENT STATUTE AND FAILURE OF THE LEGISLATURE TO REALIGN THAT
STATE'S CONGRESSIONAL DISTRICTS MORE NEARLY TO EQUALIZE THE POPULATION
OF EACH.  THEY BROUGHT THIS CLASS ACTION UNDER 42 U.S.C.  SECS 1983 AND
1988 AND 28 U.S.C. SEC 1343(3) ASKING THAT THE APPORTIONMENT STATUTE BE
DECLARED INVALID AND THAT APPELLEES, THE GOVERNOR AND SECRETARY OF
STATE, BE ENJOINED FROM CONDUCTING ELECTIONS UNDER IT.  A THREE-JUDGE
DISTRICT COURT, THOUGH RECOGNIZING THE GROSS POPULATION IMBALANCE OF
THE FIFTH DISTRICT IN RELATION TO THE OTHER DISTRICTS, DISMISSED THE
COMPLAINT FOR "WANT OF EQUITY."  HELD: 

1.  AS IN BAKER V. CARR, 369 U.S. 186, WHICH INVOLVED ALLEGED
MALAPPORTIONMENT OF SEATS IN A STATE LEGISLATURE, THE DISTRICT COURT
HAD JURISDICTION OF THE SUBJECT MATTER; APPELLANTS HAD STANDING TO SUE;
AND THEY HAD STATED A JUSTICIABLE CAUSE OF ACTION ON WHICH RELIEF COULD
BE GRANTED.  PP. 5-6. 

2.  A COMPLAINT ALLEGING DEBASEMENT OF THE RIGHT TO VOTE AS A RESULT
OF A STATE CONGRESSIONAL APPORTIONMENT LAW IS NOT SUBJECT TO DISMISSAL
FOR "WANT OF EQUITY" AS RAISING A WHOLLY "POLITICAL" QUESTION.  PP. 6
7. 

3.  THE CONSTITUTIONAL REQUIREMENT IN ART. I, SEC 2, THAT
REPRESENTATIVES BE CHOSEN "BY THE PEOPLE OF THE SEVERAL STATES" MEANS
THAT AS NEARLY AS IS PRACTICABLE ONE PERSON'S VOTE IN A CONGRESSIONAL
ELECTION IS TO BE WORTH AS MUCH AS ANOTHER'S.  PP. 7-8, 18. 

WESBERRY ET AL. V. SANDERS, GOVERNOR OF GEORGIA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE CITIZENS AND QUALIFIED VOTERS OF FULTON COUNTY,
GEORGIA, AND AS SUCH ARE ENTITLED TO VOTE IN CONGRESSIONAL ELECTIONS IN
GEORGIA'S FIFTH CONGRESSIONAL DISTRICT.  THAT DISTRICT, ONE OF TEN
CREATED BY A 1931 GEORGIA STATUTE, (FN1) INCLUDES FULTON, DEKALB, AND
ROCKDALE COUNTIES AND HAS A POPULATION ACCORDING TO THE 1960 CENSUS OF
823,680.  THE AVERAGE POPULATION OF THE TEN DISTRICTS IS 394,312, LESS
THAN HALF THAT OF THE FIFTH.  ONE DISTRICT, THE NINTH, HAS ONLY 272,154
PEOPLE, LESS THAN ONE-THIRD AS MANY AS THE FIFTH.  SINCE THERE IS ONLY
ONE CONGRESSMAN FOR EACH DISTRICT, THIS INEQUALITY OF POPULATION MEANS
THAT THE FIFTH DISTRICT'S CONGRESSMAN HAS TO REPRESENT FROM TWO TO
THREE TIMES AS MANY PEOPLE AS DO CONGRESSMEN FROM SOME OF THE OTHER
GEORGIA DISTRICTS. 

CLAIMING THAT THESE POPULATION DISPARITIES DEPRIVED THEM AND VOTERS
SIMILARLY SITUATED OF A RIGHT UNDER THE FEDERAL CONSTITUTION TO HAVE
THEIR VOTES FOR CONGRESSMAN GIVEN THE SAME WEIGHT AS THE VOTES OF OTHER
GEORGIANS, THE APPELLANTS BROUGHT THIS ACTION UNDER 42 U.S.C. SECS 1983
AND 1988 AND 28 U.S.C. SEC 1343(3) ASKING THAT THE GEORGIA STATUTE BE
DECLARED INVALID AND THAT THE APPELLEES, THE GOVERNOR AND SECRETARY OF
STATE OF GEORGIA, BE ENJOINED FROM CONDUCTING ELECTIONS UNDER IT.  THE
COMPLAINT ALLEGED THAT APPELLANTS WERE DEPRIVED OF THE FULL BENEFIT OF
THEIR RIGHT TO VOTE, IN VIOLATION OF (1) ART. I, SEC 2, OF THE
CONSTITUTION OF THE UNITED STATES, WHICH PROVIDES THAT "THE HOUSE OF
REPRESENTATIVES SHALL BE COMPOSED OF MEMBERS CHOSEN EVERY SECOND YEAR
BY THE PEOPLE OF THE SEVERAL STATES  ...  "; (2) THE DUE PROCESS, EQUAL
PROTECTION, AND PRIVILEGES AND IMMUNITIES CLAUSES OF THE FOURTEENTH
AMENDMENT; AND (3) THAT PART OF SECTION 2 OF THE FOURTEENTH AMENDMENT
WHICH PROVIDES THAT "REPRESENTATIVES SHALL BE APPORTIONED AMONG THE
SEVERAL STATES ACCORDING TO THEIR RESPECTIVE NUMBERS  ...  ." 

THE CASE WAS HEARD BY A THREE-JUDGE DISTRICT COURT, WHICH FOUND
UNANIMOUSLY, FROM FACTS NOT DISPUTED, THAT: 

"IT IS CLEAR BY ANY STANDARD  ...  THAT THE POPULATION OF THE FIFTH
DISTRICT IS GROSSLY OUT OF BALANCE WITH THAT OF THE OTHER NINE
CONGRESSIONAL DISTRICTS OF GEORGIA AND IN FACT, SO MUCH SO THAT THE
REMOVAL OF DEKALB AND ROCKDALE COUNTIES FROM THE DISTRICT, LEAVING ONLY
FULTON WITH A POPULATION OF 556,326, WOULD LEAVE IT EXCEEDING THE
AVERAGE BY SLIGHTLY MORE THAN FORTY PER CENT."  (FN2) 

NOTWITHSTANDING THESE FINDINGS, A MAJORITY OF THE COURT DISMISSED THE
COMPLAINT, CITING AS THEIR GUIDE MR. JUSTICE FRANKFURTER'S MINORITY
OPINION IN COLEGROVE V. GREEN, 328 U.S. 549, AN OPINION STATING THAT
CHALLENGES TO APPORTIONMENT OF CONGRESSIONAL DISTRICTS RAISED ONLY
"POLITICAL" QUESTIONS, WHICH WERE NOT JUSTICIABLE.  ALTHOUGH THE
MAJORITY BELOW SAID THAT THE DISMISSAL HERE WAS BASED ON "WANT OF
EQUITY" AND NOT ON NONJUSTICIABILITY, THEY RELIED ON NO CIRCUMSTANCES
WHICH WERE PECULIAR TO THE PRESENT CASE; INSTEAD, THEY ADOPTED THE
LANGUAGE AND REASONING OF MR. JUSTICE FRANKFURTER'S COLEGROVE OPINION
IN CONCLUDING THAT THE APPELLANTS HAD PRESENTED A WHOLLY "POLITICAL"
QUESTION.  (FN3)  JUDGE TUTTLE, DISAGREEING WITH THE COURT'S RELIANCE
ON THAT OPINION, DISSENTED FROM THE DISMISSAL, THOUGH HE WOULD HAVE
DENIED AN INJUNCTION AT THAT TIME IN ORDER TO GIVE THE GEORGIA
LEGISLATURE AMPLE OPPORTUNITY TO CORRECT THE "ABUSES" IN THE
APPORTIONMENT.  HE RELIED ON BAKER V. CARR, 369 U.S. 186, WHICH, AFTER
FULL DISCUSSION OF COLEGROVE AND ALL THE OPINIONS IN IT, HELD THAT
ALLEGATIONS OF DISPARITIES OF POPULATION IN STATE LEGISLATIVE DISTRICTS
RAISE JUSTICIABLE CLAIMS ON WHICH COURTS MAY GRANT RELIEF.  WE NOTED
PROBABLE JURISDICTION.  374 U.S. 802.  WE AGREE WITH JUDGE TUTTLE THAT
IN DEBASING THE WEIGHT OF APPELLANTS' VOTES THE STATE HAS ABRIDGED THE
RIGHT TO VOTE FOR MEMBERS OF CONGRESS GUARANTEED THEM BY THE UNITED
STATES CONSTITUTION, THAT THE DISTRICT COURT SHOULD HAVE ENTERED A
DECLARATORY JUDGMENT TO THAT EFFECT, AND THAT IT WAS THEREFORE ERROR TO
DISMISS THIS SUIT.  THE QUESTION OF WHAT RELIEF SHOULD BE GIVEN WE
LEAVE FOR FURTHER CONSIDERATION AND DECISION BY THE DISTRICT COURT IN
LIGHT OF EXISTING CIRCUMSTANCES. 

                                  I. 

BAKER V. CARR, SUPRA, CONSIDERED A CHALLENGE TO A 1901 TENNESSEE
STATUTE PROVIDING FOR APPORTIONMENT OF STATE REPRESENTATIVES AND
SENATORS UNDER THE STATE'S CONSTITUTION, WHICH CALLED FOR APPORTIONMENT
AMONG COUNTIES OR DISTRICTS "ACCORDING TO THE NUMBER OF QUALIFIED
VOTERS IN EACH."  THE COMPLAINT THERE CHARGED THAT THE STATE'S
CONSTITUTIONAL COMMAND TO APPORTION ON THE BASIS OF THE NUMBER OF
QUALIFIED VOTERS HAD NOT BEEN FOLLOWED IN THE 1901 STATUTE AND THAT THE
DISTRICTS WERE SO DISCRIMINATORILY DISPARATE IN NUMBER OF QUALIFIED
VOTERS THAT THE PLAINTIFFS AND PERSONS SIMILARLY SITUATED WERE, "BY
VIRTUE OF THE DEBASEMENT OF THEIR VOTES," DENIED THE EQUAL PROTECTION
OF THE LAWS GUARANTEED THEM BY THE FOURTEENTH AMENDMENT.  (FN4)  THE
CAUSE THERE OF THE ALLEGED "DEBASEMENT" OF VOTES FOR STATE LEGISLATORS
DISTRICTS CONTAINING WIDELY VARYING NUMBERS OF PEOPLE - WAS PRECISELY
THAT WHICH WAS ALLEGED TO DEBASE VOTES FOR CONGRESSMEN IN COLEGROVE V.
GREEN, SUPRA, AND IN THE PRESENT CASE.  THE COURT IN BAKER POINTED OUT
THAT THE OPINION OF MR. JUSTICE FRANKFURTER IN COLEGROVE, UPON THE
REASONING OF WHICH THE MAJORITY BELOW LEANED HEAVILY IN DISMISSING "FOR
WANT OF EQUITY," WAS APPROVED BY ONLY THREE OF THE SEVEN JUSTICES
SITTING.  (FN5)  AFTER FULL CONSIDERATION OF COLEGROVE, THE COURT IN
BAKER HELD (1) THAT THE DISTRICT COURT HAD JURISDICTION OF THE SUBJECT
MATTER; (2) THAT THE QUALIFIED TENNESSEE VOTERS THERE HAD STANDING TO
SUE; AND (3) THAT THE PLAINTIFFS HAD STATED A JUSTICIABLE CAUSE OF
ACTION ON WHICH RELIEF COULD BE GRANTED. 

THE REASONS WHICH LED TO THESE CONCLUSIONS IN BAKER ARE EQUALLY
PERSUASIVE HERE.  INDEED, AS ONE OF THE GROUNDS THERE RELIED ON TO
SUPPORT OUR HOLDING THAT STATE APPORTIONMENT CONTROVERSIES ARE
JUSTICIABLE WE SAID: 

" ...  SMILEY V. HOLM, 285 U.S. 355, KOENIG V. FLYNN, 285 U.S. 375,
AND CARROLL V. BECKER, 285 U.S. 380, CONCERNED THE CHOICE OF
REPRESENTATIVES IN THE FEDERAL CONGRESS.  SMILEY, KOENIG AND CARROLL
SETTLED THE ISSUE IN FAVOR OF JUSTICIABILITY OF QUESTIONS OF
CONGRESSIONAL REDISTRICTING.  THE COURT FOLLOWED THESE PRECEDENTS IN
COLEGROVE ALTHOUGH OVER THE DISSENT OF THREE OF THE SEVEN JUSTICES WHO
PARTICIPATED IN THAT DECISION."  (FN6) 

THIS STATEMENT IN BAKER, WHICH REFERRED TO OUR PAST DECISIONS HOLDING
CONGRESSIONAL APPORTIONMENT CASES TO BE JUSTICIABLE, WE BELIEVE WAS
WHOLLY CORRECT AND WE ADHERE TO IT.  MR. JUSTICE FRANKFURTER'S
COLEGROVE OPINION CONTENDED THAT ART. I, SEC 4, OF THE CONSTITUTION
(FN7) HAD GIVEN CONGRESS "EXCLUSIVE AUTHORITY" TO PROTECT THE RIGHT OF
CITIZENS TO VOTE FOR CONGRESSMEN, (FN8) BUT WE MADE IT CLEAR IN BAKER
THAT NOTHING IN THE LANGUAGE OF THAT ARTICLE GIVES SUPPORT TO A
CONSTRUCTION THAT WOULD IMMUNIZE STATE CONGRESSIONAL APPORTIONMENT LAWS
WHICH DEBASE A CITIZEN'S RIGHT TO VOTE FROM THE POWER OF COURTS TO
PROTECT THE CONSTITUTIONAL RIGHTS OF INDIVIDUALS FROM LEGISLATIVE
DESTRUCTION, A POWER RECOGNIZED AT LEAST SINCE OUR DECISION IN MARBURY
V. MADISON, 1 CRANCH 137, IN 1803.  CF. GIBBONS V. OGDEN, 9 WHEAT.  1. 
THE RIGHT TO VOTE IS TOO IMPORTANT IN OUR FREE SOCIETY TO BE STRIPPED
OF JUDICIAL PROTECTION BY SUCH AN INTERPRETATION OF ARTICLE I. THIS
DISMISSAL CAN NO MORE BE JUSTIFIED ON THE GROUND OF "WANT OF EQUITY"
THAN ON THE GROUND OF "NONJUSTICIABILITY."  WE THEREFORE HOLD THAT THE
DISTRICT COURT ERRED IN DISMISSING THE COMPLAINT. 

                                 II. 

THIS BRINGS US TO THE MERITS.  WE AGREE WITH THE DISTRICT COURT THAT
THE 1931 GEORGIA APPORTIONMENT GROSSLY DISCRIMINATES AGAINST VOTERS IN
THE FIFTH CONGRESSIONAL DISTRICT.  A SINGLE CONGRESSMAN REPRESENTS FROM
TWO TO THREE TIMES AS MANY FIFTH DISTRICT VOTERS AS ARE REPRESENTED BY
EACH OF THE CONGRESSMEN FROM THE OTHER GEORGIA CONGRESSIONAL
DISTRICTS.  THE APPORTIONMENT STATUTE THUS CONTRACTS THE VALUE OF SOME
VOTES AND EXPANDS THAT OF OTHERS.  IF THE FEDERAL CONSTITUTION INTENDS
THAT WHEN QUALIFIED VOTERS ELECT MEMBERS OF CONGRESS EACH VOTE BE GIVEN
AS MUCH WEIGHT AS ANY OTHER VOTE, THEN THIS STATUTE CANNOT STAND. 

WE HOLD THAT, CONSTRUED IN ITS HISTORICAL CONTEXT, THE COMMAND OF
ART. I, SEC 2, THAT REPRESENTATIVES BE CHOSEN "BY THE PEOPLE OF THE
SEVERAL STATES" (FN9) MEANS THAT AS NEARLY AS IS PRACTICABLE ONE MAN'S
VOTE IN A CONGRESSIONAL ELECTION IS TO BE WORTH AS MUCH AS ANOTHER'S.
(FN10) THIS RULE IS FOLLOWED AUTOMATICALLY, OF COURSE, WHEN
REPRESENTATIVES ARE CHOSEN AS A GROUP ON A STATEWIDE BASIS, AS WAS A
WIDESPREAD PRACTICE IN THE FIRST 50 YEARS OF OUR NATION'S HISTORY. 
(FN11)  IT WOULD BE EXTRAORDINARY TO SUGGEST THAT IN SUCH STATEWIDE
ELECTIONS THE VOTES OF INHABITANTS OF SOME PARTS OF A STATE, FOR
EXAMPLE, GEORGIA'S THINLY POPULATED NINTH DISTRICT, COULD BE WEIGHTED
AT TWO OR THREE TIMES THE VALUE OF THE VOTES OF PEOPLE LIVING IN MORE
POPULOUS PARTS OF THE STATE, FOR EXAMPLE, THE FIFTH DISTRICT AROUND
ATLANTA.  CF. GRAY V. SANDERS, 372 U.S. 368.  WE DO NOT BELIEVE THAT
THE FRAMERS OF THE CONSTITUTION INTENDED TO PERMIT THE SAME VOTE
DILUTING DISCRIMINATION TO BE ACCOMPLISHED THROUGH THE DEVICE OF
DISTRICTS CONTAINING WIDELY VARIED NUMBERS OF INHABITANTS.  TO SAY THAT
A VOTE IS WORTH MORE IN ONE DISTRICT THAN IN ANOTHER WOULD NOT ONLY RUN
COUNTER TO OUR FUNDAMENTAL IDEAS OF DEMOCRATIC GOVERNMENT, IT WOULD
CAST ASIDE THE PRINCIPLE OF A HOUSE OF REPRESENTATIVES ELECTED "BY THE
PEOPLE," A PRINCIPLE TENACIOUSLY FOUGHT FOR AND ESTABLISHED AT THE
CONSTITUTIONAL CONVENTION.  THE HISTORY OF THE CONSTITUTION,
PARTICULARLY THAT PART OF IT RELATING TO THE ADOPTION OF ART. I, SEC 2,
REVEALS THAT THOSE WHO FRAMED THE CONSTITUTION MEANT THAT, NO MATTER
WHAT THE MECHANICS OF AN ELECTION, WHETHER STATEWIDE OR BY DISTRICTS,
IT WAS POPULATION WHICH WAS TO BE THE BASIS OF THE HOUSE OF
REPRESENTATIVES. 

DURING THE REVOLUTIONARY WAR THE REBELLING COLONIES WERE LOOSELY
ALLIED IN THE CONTINENTAL CONGRESS, A BODY WITH AUTHORITY TO DO LITTLE
MORE THAN PASS RESOLUTIONS AND ISSUE REQUESTS FOR MEN AND SUPPLIES. 
BEFORE THE WAR ENDED THE CONGRESS HAD PROPOSED AND SECURED THE
RATIFICATION BY THE STATES OF A SOMEWHAT CLOSER ASSOCIATION UNDER THE
ARTICLES OF CONFEDERATION.  THOUGH THE ARTICLES ESTABLISHED A CENTRAL
GOVERNMENT FOR THE UNITED STATES, AS THE FORMER COLONIES WERE EVEN THEN
CALLED, THE STATES RETAINED MOST OF THEIR SOVEREIGNTY, LIKE INDEPENDENT
NATIONS BOUND TOGETHER ONLY BY TREATIES.  THERE WERE NO SEPARATE
JUDICIAL OR EXECUTIVE BRANCHES:  ONLY A CONGRESS CONSISTING OF A SINGLE
HOUSE.  LIKE THE MEMBERS OF AN ANCIENT GREEK LEAGUE, EACH STATE,
WITHOUT REGARD TO SIZE OR POPULATION, WAS GIVEN ONLY ONE VOTE IN THAT
HOUSE.  IT SOON BECAME CLEAR THAT THE CONFEDERATION WAS WITHOUT
ADEQUATE POWER TO COLLECT NEEDED REVENUES OR TO ENFORCE THE RULES ITS
CONGRESS ADOPTED.  FARSIGHTED MEN FELT THAT A CLOSER UNION WAS
NECESSARY IF THE STATES WERE TO BE SAVED FROM FOREIGN AND DOMESTIC
DANGERS. 

THE RESULT WAS THE CONSTITUTIONAL CONVENTION OF 1787, CALLED FOR "THE
SOLE AND EXPRESS PURPOSE OF REVISING THE ARTICLES OF CONFEDERATION  ...
."  (FN12)  WHEN THE CONVENTION MET IN MAY, THIS MODEST PURPOSE WAS
SOON ABANDONED FOR THE GREATER CHALLENGE OF CREATING A NEW AND CLOSER
FORM OF GOVERNMENT THAN WAS POSSIBLE UNDER THE CONFEDERATION.  SOON
AFTER THE CONVENTION ASSEMBLED, EDMUND RANDOLPH OF VIRGINIA PRESENTED A
PLAN NOT MERELY TO AMEND THE ARTICLES OF CONFEDERATION BUT TO CREATE AN
ENTIRELY NEW NATIONAL GOVERNMENT WITH A NATIONAL EXECUTIVE, NATIONAL
JUDICIARY, AND A NATIONAL LEGISLATURE OF TWO HOUSES, ONE HOUSE TO BE
ELECTED BY "THE PEOPLE," THE SECOND HOUSE TO BE ELECTED BY THE FIRST. 
(FN13) 

THE QUESTION OF HOW THE LEGISLATURE SHOULD BE CONSTITUTED
PRECIPITATED THE MOST BITTER CONTROVERSY OF THE CONVENTION.  ONE
PRINCIPLE WAS UPPERMOST IN THE MINDS OF MANY DELEGATES: THAT, NO MATTER
WHERE HE LIVED, EACH VOTER SHOULD HAVE A VOICE EQUAL TO THAT OF EVERY
OTHER IN ELECTING MEMBERS OF CONGRESS.  IN SUPPORT OF THIS PRINCIPLE,
GEORGE MASON OF VIRGINIA: 

"ARGUED STRONGLY FOR AN ELECTION OF THE LARGER BRANCH BY THE PEOPLE. 
IT WAS TO BE THE GRAND DEPOSITORY OF THE DEMOCRATIC PRINCIPLE OF THE
GOVT."  (FN14) 

JAMES MADISON AGREED, SAYING "IF THE POWER IS NOT IMMEDIATELY DERIVED
FROM THE PEOPLE, IN PROPORTION TO THEIR NUMBERS, WE MAY MAKE A PAPER
CONFEDERACY, BUT THAT WILL BE ALL."  (FN15) REPEATEDLY, DELEGATES ROSE
TO MAKE THE SAME POINT:  THAT IT WOULD BE UNFAIR, UNJUST, AND CONTRARY
TO COMMON SENSE TO GIVE A SMALL NUMBER OF PEOPLE AS MANY SENATORS OR
REPRESENTATIVES AS WERE ALLOWED TO MUCH LARGER GROUPS (FN16) - IN
SHORT, AS JAMES WILSON OF PENNSYLVANIA PUT IT, "EQUAL NUMBERS OF PEOPLE
OUGHT TO HAVE AN EQUAL NO. OF REPRESENTATIVES  ...  " AND
REPRESENTATIVES "OF DIFFERENT DISTRICTS OUGHT CLEARLY TO HOLD THE SAME
PROPORTION TO EACH OTHER, AS THEIR RESPECTIVE CONSTITUENTS HOLD TO EACH
OTHER."  (FN17)    SOME DELEGATES OPPOSED ELECTION BY THE PEOPLE.  THE
SHARPEST OBJECTION AROSE OUT OF THE FEAR ON THE PART OF SMALL STATES
LIKE DELAWARE THAT IF POPULATION WERE TO BE THE ONLY BASIS OF
REPRESENTATION THE POPULOUS STATES LIKE VIRGINIA WOULD ELECT A LARGE
ENOUGH NUMBER OF REPRESENTATIVES TO WIELD OVERWHELMING POWER IN THE
NATIONAL GOVERNMENT.  (FN18)  ARGUING THAT THE CONVENTION HAD NO
AUTHORITY TO DEPART FROM THE PLAN OF THE ARTICLES OF CONFEDERATION
WHICH GAVE EACH STATE AN EQUAL VOTE IN THE NATIONAL CONGRESS, WILLIAM
PATERSON OF NEW JERSEY SAID, "IF THE SOVEREIGNTY OF THE STATES IS TO BE
MAINTAINED, THE REPRESENTATIVES MUST BE DRAWN IMMEDIATELY FROM THE
STATES, NOT FROM THE PEOPLE: AND WE HAVE NO POWER TO VARY THE IDEA OF
EQUAL SOVEREIGNTY."  (FN19)  TO THIS END HE PROPOSED A SINGLE
LEGISLATIVE CHAMBER IN WHICH EACH STATE, AS IN THE CONFEDERATION, WAS
TO HAVE AN EQUAL VOTE.  (FN20)  A NUMBER OF DELEGATES SUPPORTED THIS
PLAN.  (FN21) 

THE DELEGATES WHO WANTED EVERY MAN'S VOTE TO COUNT ALIKE WERE SHARP
IN THEIR CRITICISM OF GIVING EACH STATE, REGARDLESS OF POPULATION, THE
SAME VOICE IN THE NATIONAL LEGISLATURE.  MADISON ENTREATED THE
CONVENTION "TO RENOUNCE A PRINCIPLE WCH.  WAS CONFESSEDLY UNJUST,"
(FN22) AND RUFUS KING OF MASSACHUSETTS "WAS PREPARED FOR EVERY EVENT,
RATHER THAN SIT DOWN UNDER A GOVT. FOUNDED IN A VICIOUS PRINCIPLE OF
REPRESENTATION AND WHICH MUST BE AS SHORTLIVED AS IT WOULD BE UNJUST." 
(FN23) 

THE DISPUTE CAME NEAR ENDING THE CONVENTION WITHOUT A CONSTITUTION. 
BOTH SIDES SEEMED FOR A TIME TO BE HOPELESSLY OBSTINATE.  SOME
DELEGATIONS THREATENED TO WITHDRAW FROM THE CONVENTION IF THEY DID NOT
GET THEIR WAY.  (FN24)  SEEING THE CONTROVERSY GROWING SHARPER AND
EMOTIONS RISING, THE WISE AND HIGHLY RESPECTED BENJAMIN FRANKLIN AROSE
AND PLEADED WITH THE DELEGATES ON BOTH SIDES TO "PART WITH SOME OF
THEIR DEMANDS, IN ORDER THAT THEY MAY JOIN IN SOME ACCOMODATING
PROPOSITION."  (FN25)  AT LAST THOSE WHO SUPPORTED REPRESENTATION OF
THE PEOPLE IN BOTH HOUSES AND THOSE WHO SUPPORTED IT IN NEITHER WERE
BROUGHT TOGETHER, SOME EXPRESSING THE FEAR THAT IF THEY DID NOT
RECONCILE THEIR DIFFERENCES, "SOME FOREIGN SWORD WILL PROBABLY DO THE
WORK FOR US."  (FN26)  THE DEADLOCK WAS FINALLY BROKEN WHEN A MAJORITY
OF THE STATES AGREED TO WHAT HAS BEEN CALLED THE GREAT COMPROMISE,
(FN27) BASED ON A PROPOSAL WHICH HAD BEEN REPEATEDLY ADVANCED BY ROGER
SHERMAN AND OTHER DELEGATES FROM CONNECTICUT.  (FN28)  IT PROVIDED ON
THE ONE HAND THAT EACH STATE, INCLUDING LITTLE DELAWARE AND RHODE
ISLAND, WAS TO HAVE TWO SENATORS.  AS A FURTHER GUARANTEE THAT THESE
SENATORS WOULD BE CONSIDERED STATE EMISSARIES, THEY WERE TO BE ELECTED
BY THE STATE LEGISLATURES, ART. I, SEC 3, AND IT WAS SPECIALLY PROVIDED
IN ARTICLE V THAT NO STATE SHOULD EVER BE DEPRIVED OF ITS EQUAL
REPRESENTATION IN THE SENATE.  THE OTHER SIDE OF THE COMPROMISE WAS
THAT, AS PROVIDED IN ART. I, SEC 2, MEMBERS OF THE HOUSE OF
REPRESENTATIVES SHOULD BE CHOSEN "BY THE PEOPLE OF THE SEVERAL STATES"
AND SHOULD BE "APPORTIONED AMONG THE SEVERAL STATES  ...  ACCORDING TO
THEIR RESPECTIVE NUMBERS."  WHILE THOSE WHO WANTED BOTH HOUSES TO
REPRESENT THE PEOPLE HAD YIELDED ON THE SENATE, THEY HAD NOT YIELDED ON
THE HOUSE OF REPRESENTATIVES.  WILLIAM SAMUEL JOHNSON OF CONNECTICUT
HAD SUMMED IT UP WELL:  "IN ONE BRANCH THE PEOPLE, OUGHT TO BE
REPRESENTED; IN THE OTHER, THE STATES."  (FN29) 

THE DEBATES AT THE CONVENTION MAKE AT LEAST ONE FACT ABUNDANTLY
CLEAR:  THAT WHEN THE DELEGATES AGREED THAT THE HOUSE SHOULD REPRESENT
"PEOPLE" THEY INTENDED THAT IN ALLOCATING CONGRESSMEN THE NUMBER
ASSIGNED TO EACH STATE SHOULD BE DETERMINED SOLELY BY THE NUMBER OF THE
STATE'S INHABITANTS.  (FN30)  THE CONSTITUTION EMBODIED EDMUND
RANDOLPH'S PROPOSAL FOR A PERIODIC CENSUS TO ENSURE "FAIR
REPRESENTATION OF THE PEOPLE," (FN31) AN IDEA ENDORSED BY MASON AS
ASSURING THAT "NUMBERS OF INHABITANTS" SHOULD ALWAYS BE THE MEASURE OF
REPRESENTATION IN THE HOUSE OF REPRESENTATIVES.  (FN32)  THE CONVENTION
ALSO OVERWHELMINGLY AGREED TO A RESOLUTION OFFERED BY RANDOLPH TO BASE
FUTURE APPORTIONMENT SQUARELY ON NUMBERS AND TO DELETE ANY REFERENCE TO
WEALTH.  (FN33)  AND THE DELEGATES DEFEATED A MOTION MADE BY ELBRIDGE
GERRY TO LIMIT THE NUMBER OF REPRESENTATIVES FROM NEWER WESTERN STATES
SO THAT IT WOULD NEVER EXCEED THE NUMBER FROM THE ORIGINAL STATES. 
(FN34) 

IT WOULD DEFEAT THE PRINCIPLE SOLEMNLY EMBODIED IN THE GREAT
COMPROMISE - EQUAL REPRESENTATION IN THE HOUSE FOR EQUAL NUMBERS OF
PEOPLE - FOR US TO HOLD THAT, WITHIN THE STATES, LEGISLATURES MAY DRAW
THE LINES OF CONGRESSIONAL DISTRICTS IN SUCH A WAY AS TO GIVE SOME
VOTERS A GREATER VOICE IN CHOOSING A CONGRESSMAN THAN OTHERS.  THE
HOUSE OF REPRESENTATIVES, THE CONVENTION AGREED, WAS TO REPRESENT THE
PEOPLE AS INDIVIDUALS, AND ON A BASIS OF COMPLETE EQUALITY FOR EACH
VOTER.  THE DELEGATES WERE QUITE AWARE OF WHAT MADISON CALLED THE
"VICIOUS REPRESENTATION" IN GREAT BRITAIN (FN35) WHEREBY "ROTTEN
BOROUGHS" WITH FEW INHABITANTS WERE REPRESENTED IN PARLIAMENT ON OR
ALMOST ON A PAR WITH CITIES OF GREATER POPULATION.  WILSON URGED THAT
PEOPLE MUST BE REPRESENTED AS INDIVIDUALS, SO THAT AMERICA WOULD ESCAPE
THE EVILS OF THE ENGLISH SYSTEM UNDER WHICH ONE MAN COULD SEND TWO
MEMBERS TO PARLIAMENT TO REPRESENT THE BOROUGH OF OLD SARUM WHILE
LONDON'S MILLION PEOPLE SENT BUT FOUR.  (FN36)  THE DELEGATES REFERRED
TO ROTTEN BOROUGH APPORTIONMENTS IN SOME OF THE STATE LEGISLATURES AS
THE KIND OF OBJECTIONABLE GOVERNMENTAL ACTION THAT THE CONSTITUTION
SHOULD NOT TOLERATE IN THE ELECTION OF CONGRESSIONAL REPRESENTATIVES. 
(FN37) 

MADISON IN THE FEDERALIST DESCRIBED THE SYSTEM OF DIVISION OF STATES
INTO CONGRESSIONAL DISTRICTS, THE METHOD WHICH HE AND OTHERS (FN38)
ASSUMED STATES PROBABLY WOULD ADOPT:  "THE CITY OF PHILADELPHIA IS
SUPPOSED TO CONTAIN BETWEEN FIFTY AND SIXTY THOUSAND SOULS.  IT WILL
THEREFORE FORM NEARLY TWO DISTRICTS FOR THE CHOICE OF FEDERAL
REPRESENTATIVES."  (FN39)  "NUMBERS," HE SAID, NOT ONLY ARE A SUITABLE
WAY TO REPRESENT WEALTH BUT IN ANY EVENT "ARE THE ONLY PROPER SCALE OF
REPRESENTATION."  (FN40)  IN THE STATE CONVENTIONS, SPEAKERS URGING
RATIFICATION OF THE CONSTITUTION EMPHASIZED THE THEME OF EQUAL
REPRESENTATION IN THE HOUSE WHICH HAD PERMEATED THE DEBATES IN
PHILADELPHIA.  (FN41)  CHARLES COTESWORTH PINCKNEY TOLD THE SOUTH
CAROLINA CONVENTION, "THE HOUSE OF REPRESENTATIVES WILL BE ELECTED
IMMEDIATELY BY THE PEOPLE, AND REPRESENT THEM AND THEIR PERSONAL RIGHTS
INDIVIDUALLY  ...  ."  (FN42)  SPEAKERS AT THE RATIFYING CONVENTIONS
EMPHASIZED THAT THE HOUSE OF REPRESENTATIVES WAS MEANT TO BE FREE OF
THE MALAPPORTIONMENT THEN EXISTING IN SOME OF THE STATE LEGISLATURES -
SUCH AS THOSE OF CONNECTICUT, RHODE ISLAND, AND SOUTH CAROLINA - AND
ARGUED THAT THE POWER GIVEN CONGRESS IN ART. I, SEC 4, (FN43) WAS MEANT
TO BE USED TO VINDICATE THE PEOPLE'S RIGHT TO EQUALITY OF
REPRESENTATION IN THE HOUSE.  (FN44)  CONGRESS' POWER, SAID JOHN STEELE
AT THE NORTH CAROLINA CONVENTION, WAS NOT TO BE USED TO ALLOW CONGRESS
TO CREATE ROTTEN BOROUGHS; IN ANSWER TO ANOTHER DELEGATE'S SUGGESTION
THAT CONGRESS MIGHT USE ITS POWER TO FAVOR PEOPLE LIVING NEAR THE
SEACOAST, STEELE SAID THAT CONGRESS "MOST PROBABLY" WOULD "LAY THE
STATE OFF INTO DISTRICTS," AND IF IT MADE LAWS "INCONSISTENT WITH THE
CONSTITUTION, INDEPENDENT JUDGES WILL NOT UPHOLD THEM, NOR WILL THE
PEOPLE OBEY THEM."  (FN45) 

SOON AFTER THE CONSTITUTION WAS ADOPTED, JAMES WILSON OF
PENNSYLVANIA, BY THEN AN ASSOCIATE JUSTICE OF THIS COURT, GAVE A SERIES
OF LECTURES AT PHILADELPHIA IN WHICH, DRAWING ON HIS EXPERIENCE AS ONE
OF THE MOST ACTIVE MEMBERS OF THE CONSTITUTIONAL CONVENTION, HE SAID: 

"ALL ELECTIONS OUGHT TO BE EQUAL.  ELECTIONS ARE EQUAL, WHEN A GIVEN
NUMBER OF CITIZENS, IN ONE PART OF THE STATE, CHOOSE AS MANY
REPRESENTATIVES, AS ARE CHOSEN BY THE SAME NUMBER OF CITIZENS, IN ANY
OTHER PART OF THE STATE.  IN THIS MANNER, THE PROPORTION OF THE
REPRESENTATIVES AND OF THE CONSTITUENTS WILL REMAIN INVARIABLY THE
SAME."  (FN46) 

IT IS IN THE LIGHT OF SUCH HISTORY THAT WE MUST CONSTRUE ART. I, SEC
2, OF THE CONSTITUTION, WHICH, CARRYING OUT THE IDEAS OF MADISON AND
THOSE OF LIKE VIEWS, PROVIDES THAT REPRESENTATIVES SHALL BE CHOSEN "BY
THE PEOPLE OF THE SEVERAL STATES" AND SHALL BE "APPORTIONED AMONG THE
SEVERAL STATES  ...  ACCORDING TO THEIR RESPECTIVE NUMBERS."  IT IS NOT
SURPRISING THAT OUR COURT HAS HELD THAT THIS ARTICLE GIVES PERSONS
QUALIFIED TO VOTE A CONSTITUTIONAL RIGHT TO VOTE AND TO HAVE THEIR
VOTES COUNTED.  UNITED STATES V. MOSLEY, 238 U.S. 383; EX PARTE
YARBROUGH, 110 U.S. 651.  NOT ONLY CAN THIS RIGHT TO VOTE NOT BE DENIED
OUTRIGHT, IT CANNOT, CONSISTENTLY WITH ARTICLE I, BE DESTROYED BY
ALTERATION OF BALLOTS, SEE UNITED STATES V. CLASSIC, 313 U.S. 299, OR
DILUTED BY STUFFING OF THE BALLOT BOX, SEE UNITED STATES V. SAYLOR, 322
U.S. 385.  NO RIGHT IS MORE PRECIOUS IN A FREE COUNTRY THAN THAT OF
HAVING A VOICE IN THE ELECTION OF THOSE WHO MAKE THE LAWS UNDER WHICH,
AS GOOD CITIZENS, WE MUST LIVE.  OTHER RIGHTS, EVEN THE MOST BASIC, ARE
ILLUSORY IF THE RIGHT TO VOTE IS UNDERMINED.  OUR CONSTITUTION LEAVES
NO ROOM FOR CLASSIFICATION OF PEOPLE IN A WAY THAT UNNECESSARILY
ABRIDGES THIS RIGHT.  IN URGING THE PEOPLE TO ADOPT THE CONSTITUTION,
MADISON SAID IN NO. 57 OF THE FEDERALIST: 

"WHO ARE TO BE THE ELECTORS OF THE FEDERAL REPRESENTATIVES?  NOT THE
RICH MORE THAN THE POOR; NOT THE LEARNED MORE THAN THE IGNORANT; NOT
THE HAUGHTY HEIRS OF DISTINGUISHED NAMES, MORE THAN THE HUMBLE SONS OF
OBSCURE AND UNPROPITIOUS FORTUNE.  THE ELECTORS ARE TO BE THE GREAT
BODY OF THE PEOPLE OF THE UNITED STATES  ...  ."  (FN47) 

READERS SURELY COULD HAVE FAIRLY TAKEN THIS TO MEAN, "ONE PERSON, ONE
VOTE."  CF. GRAY V. SANDERS, 372 U.S. 368, 381. 

WHILE IT MAY NOT BE POSSIBLE TO DRAW CONGRESSIONAL DISTRICTS WITH
MATHEMATICAL PRECISION, THAT IS NO EXCUSE FOR IGNORING OUR
CONSTITUTION'S PLAIN OBJECTIVE OF MAKING EQUAL REPRESENTATION FOR EQUAL
NUMBERS OF PEOPLE THE FUNDAMENTAL GOAL FOR THE HOUSE OF
REPRESENTATIVES.  THAT IS THE HIGH STANDARD OF JUSTICE AND COMMON SENSE
WHICH THE FOUNDERS SET FOR US.  REVERSED AND REMANDED. 

FN1  GA. CODE, SEC 34-2301. 

FN2  WESBERRY V. VANDIVER, 206 F. SUPP. 276, 279-280. 

FN3  "WE DO NOT DEEM COLEGROVE V. GREEN  ...  TO BE A PRECEDENT FOR
DISMISSAL BASED ON THE NONJUSTICIABILITY OF A POLITICAL QUESTION
INVOLVING THE CONGRESS AS HERE, BUT WE DO DEEM IT TO BE STRONG
AUTHORITY FOR DISMISSAL FOR WANT OF EQUITY WHEN THE FOLLOWING FACTORS
HERE INVOLVED ARE CONSIDERED ON BALANCE:  A POLITICAL QUESTION
INVOLVING A COORDINATE BRANCH OF THE FEDERAL GOVERNMENT; A POLITICAL
QUESTION POSING A DELICATE PROBLEM DIFFICULT OF SOLUTION WITHOUT
DEPRIVING OTHERS OF THE RIGHT TO VOTE BY DISTRICT, UNLESS WE ARE TO
REDISTRICT FOR THE STATE; RELIEF MAY BE FORTHCOMING FROM A PROPERLY
APPORTIONED STATE LEGISLATURE; AND RELIEF MAY BE AFFORDED BY THE
CONGRESS."  206 F. SUPP., AT 285. 

FN4  369 U.S., AT 188. 

FN5  MR. JUSTICE RUTLEDGE IN COLEGROVE BELIEVED THAT THE COURT SHOULD
EXERCISE ITS EQUITABLE DISCRETION TO REFUSE RELIEF BECAUSE "THE
SHORTNESS OF THE TIME REMAINING BEFORE THE NEXT ELECTION MAKES IT
DOUBTFUL WHETHER ACTION COULD, OR WOULD, BE TAKEN IN TIME TO SECURE FOR
PETITIONERS THE EFFECTIVE RELIEF THEY SEEK."  328 U.S., AT 565.  IN A
LATER SEPARATE OPINION HE EMPHASIZED THAT HIS VOTE IN COLEGROVE HAD
BEEN BASED ON THE "PARTICULAR CIRCUMSTANCES" OF THAT CASE.  COOK V.
FORTSON, 329 U.S. 675, 678. 

FN6  369 U.S., AT 232.  CF. ALSO WOOD V. BROOM, 287 U.S. 1. 

FN7  "THE TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR SENATORS
AND REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE BY THE
LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR
ALTER SUCH REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING SENATORS
...  ."  U.S. CONST., ART. I, SEC 4. 

FN8  328 U.S., AT 554. 

FN9  "THE HOUSE OF REPRESENTATIVES SHALL BE COMPOSED OF MEMBERS
CHOSEN EVERY SECOND YEAR BY THE PEOPLE OF THE SEVERAL STATES, AND THE
ELECTORS IN EACH STATE SHALL HAVE THE QUALIFICATIONS REQUISITE FOR
ELECTORS OF THE MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE. 

     *         *         *         *         * 

"REPRESENTATIVES AND DIRECT TAXES SHALL BE APPORTIONED AMONG THE
SEVERAL STATES WHICH MAY BE INCLUDED WITHIN THIS UNION, ACCORDING TO
THEIR RESPECTIVE NUMBERS, WHICH SHALL BE DETERMINED BY ADDING TO THE
WHOLE NUMBER OF FREE PERSONS, INCLUDING THOSE BOUND TO SERVICE FOR A
TERM OF YEARS, AND EXCLUDING INDIANS NOT TAXED, THREE FIFTHS OF ALL
OTHER PERSONS.  THE ACTUAL ENUMERATION SHALL BE MADE WITHIN THREE YEARS
AFTER THE FIRST MEETING OF THE CONGRESS OF THE UNITED STATES, AND
WITHIN EVERY SUBSEQUENT TERM OF TEN YEARS, IN SUCH MANNER AS THEY SHALL
BY LAW DIRECT.  THE NUMBER OF REPRESENTATIVES SHALL NOT EXCEED ONE FOR
EVERY THIRTY THOUSAND, BUT EACH STATE SHALL HAVE AT LEAST ONE
REPRESENTATIVE  ...  ."  U.S. CONST., ART. I, SEC 2. 

THE PROVISIONS FOR APPORTIONING REPRESENTATIVES AND DIRECT TAXES HAVE
BEEN AMENDED BY THE FOURTEENTH AND SIXTEENTH AMENDMENTS, RESPECTIVELY. 

FN10 WE DO NOT REACH THE ARGUMENTS THAT THE GEORGIA STATUTE VIOLATES
THE DUE PROCESS, EQUAL PROTECTION, AND PRIVILEGES AND IMMUNITIES
CLAUSES OF THE FOURTEENTH AMENDMENT. 

FN11  AS LATE AS 1842, SEVEN STATES STILL CONDUCTED CONGRESSIONAL
ELECTIONS AT LARGE.  SEE PASCHAL, "THE HOUSE OF REPRESENTATIVES:
'GRAND DEPOSITORY OF THE DEMOCRATIC PRINCIPLE'?"  17 LAW & CONTEMP. 
PROB.  276, 281 (1952). 

FN12  3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (FARRAND ED.
1911) 14 (HEREAFTER CITED AS "FARRAND"). 

JAMES MADISON, WHO TOOK CAREFUL AND COMPLETE NOTES DURING THE
CONVENTION, BELIEVED THAT IN INTERPRETING THE CONSTITUTION LATER
GENERATIONS SHOULD CONSIDER THE HISTORY OF ITS ADOPTION:    "SUCH WERE
THE DEFECTS, THE DEFORMITIES, THE DISEASES AND THE OMINOUS PROSPECTS,
FOR WHICH THE CONVENTION WERE TO PROVIDE A REMEDY, AND WHICH OUGHT
NEVER TO BE OVERLOOKED IN EXPOUNDING & APPRECIATING THE CONSTITUTIONAL
CHARTER THE REMEDY THAT WAS PROVIDED."  ID., AT 549. 

FN13  1 ID., AT 20. 

FN14  ID., AT 48. 

FN15  ID., AT 472. 

FN16  SEE, E.G., ID., AT 197-198 (BENJAMIN FRANKLIN OF PENNSYLVANIA);
ID., AT 467 (ELBRIDGE GERRY OF MASSACHUSETTS); ID., AT 286, 465-466
(ALEXANDER HAMILTON OF NEW YORK); ID., AT 489-490 (RUFUS KING OF
MASSACHUSETTS); ID., AT 322, 446-449, 486, 527-528 (JAMES MADISON OF
VIRGINIA); ID., AT 180, 456 (HUGH WILLIAMSON OF NORTH CAROLINA); ID.,
AT 253-254, 406, 449-450, 482-484 (JAMES WILSON OF PENNSYLVANIA). 

FN17  ID., AT 180. 

FN18  LUTHER MARTIN OF MARYLAND DECLARED: 

"THAT THE STATES BEING EQUAL CANNOT TREAT OR CONFEDERATE SO AS TO
GIVE UP AN EQUALITY OF VOTES WITHOUT GIVING UP THEIR LIBERTY:  THAT THE
PROPOSITIONS ON THE TABLE WERE A SYSTEM OF SLAVERY FOR 10 STATES:  THAT
AS VA. MASTS.  & PA. HAVE 42/90 OF THE VOTES THEY CAN DO AS THEY PLEASE
WITHOUT A MIRACULOUS UNION OF THE OTHER TEN:  THAT THEY WILL HAVE
NOTHING TO DO, BUT TO GAIN OVER ONE OF THE TEN TO MAKE THEM COMPLEAT
MASTERS OF THE REST  ...  ."  ID., AT 438. 

FN19  ID., AT 251. 

FN20  3 ID., AT 613. 

FN21  E.G., 1 ID., AT 324 (ALEXANDER MARTIN OF NORTH CAROLINA); ID.,
AT 437-438, 439-441, 444-445, 453-455 (LUTHER MARTIN OF MARYLAND); ID.,
AT 490-492 (GUNNING BEDFORD OF DELAWARE). 

FN22  ID., AT 464. 

FN23  ID., AT 490. 

FN24  GUNNING BEDFORD OF DELAWARE SAID: 

"WE HAVE BEEN TOLD (WITH A DICTATORIAL AIR) THAT THIS IS THE LAST
MOMENT FOR A FAIR TRIAL IN FAVOR OF A GOOD GOVERNMT  ...  .  THE LARGE
STATES DARE NOT DISSOLVE THE CONFEDERATION.  IF THEY DO THE SMALL ONES
WILL FIND SOME FOREIGN ALLY OF MORE HONOR AND GOOD FAITH, WHO WILL TAKE
THEM BY THE HAND AND DO THEM JUSTICE."  ID., AT 492. 

FN25  ID., AT 488. 

FN26  ID., AT 532 (ELBRIDGE GERRY OF MASSACHUSETTS).  GEORGE MASON OF
VIRGINIA URGED AN "ACCOMODATION" AS "PREFERABLE TO AN APPEAL TO THE
WORLD BY THE DIFFERENT SIDES, AS HAD BEEN TALKED OF BY SOME
GENTLEMEN."  ID., AT 533. 

FN27  SEE ID., AT 551. 

FN28  SEE ID., AT 193, 342-343 (ROGER SHERMAN); ID., AT 461-462
(WILLIAM SAMUEL JOHNSON). 

FN29  ID., AT 462. 

FN30  WHILE "FREE PERSONS" AND THOSE "BOUND TO SERVICE FOR A TERM OF
YEARS" WERE COUNTED IN DETERMINING REPRESENTATION, INDIANS NOT TAXED
WERE NOT COUNTED, AND "THREE FIFTHS OF ALL OTHER PERSONS" (SLAVES) WERE
INCLUDED IN COMPUTING THE STATES' POPULATIONS.  ART. I, SEC 2.  ALSO,
EVERY STATE WAS TO HAVE "AT LEAST ONE REPRESENTATIVE."  IBID. 

FN31  1 FARRAND, AT 580. 

FN32  ID., AT 579. 

FN33  ID., AT 606.  THOSE WHO THOUGHT THAT ONE BRANCH SHOULD
REPRESENT WEALTH WERE TOLD BY ROGER SHERMAN OF CONNECTICUT THAT THE
"NUMBER OF PEOPLE ALONE WAS THE BEST RULE FOR MEASURING WEALTH AS WELL
AS REPRESENTATION; AND THAT IF THE LEGISLATURE WERE TO BE GOVERNED BY
WEALTH, THEY WOULD BE OBLIGED TO ESTIMATE IT BY NUMBERS."  ID., AT
582. 

FN34  2 ID., AT 3.  THE REJECTED THINKING OF THOSE WHO SUPPORTED THE
PROPOSAL TO LIMIT WESTERN REPRESENTATION IS SUGGESTED BY THE STATEMENT
OF GOUVERNEUR MORRIS OF PENNSYLVANIA THAT "THE BUSY HAUNTS OF MEN NOT
THE REMOTE WILDERNESS, WAS THE PROPER SCHOOL OF POLITICAL TALENTS."  1
ID., AT 583. 

FN35  ID., AT 464. 

FN36  ID., AT 457.  "ROTTEN BOROUGHS" HAVE LONG SINCE DISAPPEARED IN
GREAT BRITAIN.  TODAY PERMANENT PARLIAMENTARY BOUNDARY COMMISSIONS
RECOMMEND PERIODIC CHANGES IN THE SIZE OF CONSTITUENCIES, AS POPULATION
SHIFTS.  FOR THE STATUTORY STANDARDS UNDER WHICH THESE COMMISSIONS
OPERATE, SEE HOUSE OF COMMONS (REDISTRIBUTION OF SEATS) ACTS OF 1949,
12 & 13 GEO. 6, C. 66, SECOND SCHEDULE, AND OF 1958, 6 & 7 ELIZ.  2, C.
26, SCHEDULE. 

FN37  2 ID., AT 241. 

FN38  SEE, E.G., 2 WORKS OF ALEXANDER HAMILTON (LODGE ED. 1904) 25
(STATEMENT TO NEW YORK RATIFYING CONVENTION). 

FN39  THE FEDERALIST, NO. 57 (COOKE ED. 1961), AT 389. 

FN40  ID., NO. 54, AT 368.  THERE HAS BEEN SOME QUESTION ABOUT THE
AUTHORSHIP OF NUMBERS 54 AND 57, SEE THE FEDERALIST (LODGE ED. 1908)
XXIII-XXXV, BUT IT IS NOW GENERALLY BELIEVED THAT MADISON WAS THE
AUTHOR, SEE, E.G., THE FEDERALIST (COOKE ED. 1961) XXVII; THE
FEDERALIST (VAN DOREN ED. 1945) VI-VII; BRANT, "SETTLING THE AUTHORSHIP
OF THE FEDERALIST," 67 AM.  HIST. REV. 71 (1961). 

FN41  SEE, E.G., 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON
THE ADOPTION OF THE FEDERAL CONSTITUTION (2D ELLIOT ED. 1836) 11
(FISHER AMES, IN THE MASSACHUSETTS CONVENTION) (HEREAFTER CITED AS
"ELLIOT"); ID., AT 202 (OLIVER WOLCOTT, CONNECTICUT); 4 ID., AT 21
(WILLIAM RICHARDSON DAVIE, NORTH CAROLINA); ID., AT 257 (CHARLES
PINCKNEY, SOUTH CAROLINA). 

FN42  ID., AT 304. 

FN43  "THE TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR SENATORS
AND REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE BY THE
LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR
ALTER SUCH REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING SENATORS
...  ."  U.S. CONST., ART. I, SEC 4. 

FN44  SEE 2 ELLIOT, AT 49 (FRANCIS DANA, IN THE MASSACHUSETTS
CONVENTION); ID., AT 50-51 (RUFUS KING, MASSACHUSETTS); 3 ID., AT 367
(JAMES MADISON, VIRGINIA). 

FN45  4 ID., AT 71. 

FN46  2 THE WORKS OF JAMES WILSON (ANDREWS ED. 1896) 15. 

FN47  THE FEDERALIST, NO. 57 (COOKE ED. 1961), AT 385. 

MR. JUSTICE CLARK, CONCURRING IN PART AND DISSENTING IN PART. 

UNFORTUNATELY, I CAN JOIN NEITHER THE OPINION OF THE COURT NOR THE
DISSENT OF MY BROTHER HARLAN.  IT IS TRUE THAT THE OPENING SENTENCE OF
ART. I, SEC 2, OF THE CONSTITUTION PROVIDES THAT REPRESENTATIVES ARE TO
BE CHOSEN "BY THE PEOPLE OF THE SEVERAL STATES  ...  ."  HOWEVER, IN MY
VIEW, BROTHER HARLAN HAS CLEARLY DEMONSTRATED THAT BOTH THE HISTORICAL
BACKGROUND AND LANGUAGE PRECLUDE A FINDING THAT ART. I, SEC 2, LAYS
DOWN THE IPSE DIXIT "ONE PERSON, ONE VOTE" IN CONGRESSIONAL ELECTIONS. 

ON THE OTHER HAND, I AGREE WITH THE MAJORITY THAT CONGRESSIONAL
DISTRICTING IS SUBJECT TO JUDICIAL SCRUTINY.  THIS COURT HAS SO HELD
EVER SINCE SMILEY V. HOLM, 285 U.S. 355 (1932), WHICH IS BUTTRESSED BY
TWO COMPANION CASES, KOENIG V. FLYNN, 285 U.S. 375 (1932), AND CARROLL
V. BECKER, 285 U.S. 380 (1932).  A MAJORITY OF THE COURT IN COLEGROVE
V. GREEN FELT, UPON THE AUTHORITY OF SMILEY, THAT THE COMPLAINT
PRESENTED A JUSTICIALBE CONTROVERSY NOT RESERVED EXCLUSIVELY TO
CONGRESS.  COLEGROVE V. GREEN, 328 U.S. 549, 564, AND 568, N. 3
(1946).  AGAIN, IN BAKER V. CARR, 369 U.S. 186, 232 (1962), THE OPINION
OF THE COURT RECOGNIZED THAT SMILEY "SETTLED THE ISSUE IN FAVOR OF
JUSTICIABILITY OF QUESTIONS OF CONGRESSIONAL REDISTRICTING."  I
THEREFORE CANNOT AGREE WITH BROTHER HARLAN THAT THE SUPERVISORY POWER
GRANTED TO CONGRESS UNDER ART. I, SEC 4, IS THE EXCLUSIVE REMEDY. 

I WOULD EXAMINE THE GEORGIA CONGRESSIONAL DISTRICTS AGAINST THE
REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  AS MY BROTHER BLACK SAID IN HIS DISSENT IN COLEGROVE V.
GREEN, SUPRA, THE "EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
FORBIDS  ... DISCRIMINATION.  IT DOES NOT PERMIT THE STATES TO PICK OUT
CERTAIN QUALIFIED CITIZENS OR GROUPS OF CITIZENS AND DENY THEM THE
RIGHT TO VOTE AT ALL  ...  .  NO ONE WOULD DENY THAT THE EQUAL
PROTECTION CLAUSE WOULD ALSO PROHIBIT A LAW THAT WOULD EXPRESSLY GIVE
CERTAIN CITIZENS A HALF-VOTE AND OTHERS A FULL VOTE  ...  .  SUCH
DISCRIMINATORY LEGISLATION SEEMS TO ME EXACTLY THE KIND THAT THE EQUAL
PROTECTION CLAUSE WAS INTENDED TO PROHIBIT."  AT 569. 

THE TRIAL COURT, HOWEVER, DID NOT PASS UPON THE MERITS OF THE CASE,
ALTHOUGH IT DOES APPEAR THAT IT DID MAKE A FINDING THAT THE FIFTH
DISTRICT OF GEORGIA WAS "GROSSLY OUT OF BALANCE" WITH OTHER
CONGRESSIONAL DISTRICTS OF THE STATE.  INSTEAD OF PROCEEDING ON THE
MERITS, THE COURT DISMISSED THE CASE FOR LACK OF EQUITY.  I BELIEVE
THAT THE COURT ERRED IN SO DOING.  IN MY VIEW WE SHOULD THEREFORE
VACATE THIS JUDGMENT AND REMAND THE CASE FOR A HEARING ON THE MERITS. 
AT THAT HEARING THE COURT SHOULD APPLY THE STANDARDS LAID DOWN IN BAKER
V. CARR, SUPRA. 

I WOULD ENTER AN ADDITIONAL CAVEAT.  THE GENERAL ASSEMBLY OF THE
GEORGIA LEGISLATURE HAS BEEN RECENTLY REAPPORTIONED* AS A RESULT OF THE
ORDER OF THE THREE-JUDGE DISTRICT COURT IN TOOMBS V. FORTSON, 205 F.
SUPP. 248 (1962).  IN ADDITION, THE ASSEMBLY HAS CREATED A JOINT
CONGRESSIONAL REDISTRICTING STUDY COMMITTEE WHICH HAS BEEN WORKING ON
THE PROBLEM OF CONGRESSIONAL REDISTRICTING FOR SEVERAL MONTHS.  THE
GENERAL ASSEMBLY IS CURRENTLY IN SESSION.  IF ON REMAND THE TRIAL COURT
IS OF THE OPINION THAT THERE IS LIKELIHOOD OF THE GENERAL ASSEMBLY'S
REAPPORTIONING THE STATE IN AN APPROPRIATE MANNER, I BELIEVE THAT
COERCIVE RELIEF SHOULD BE DEFERRED UNTIL AFTER THE GENERAL ASSEMBLY HAS
HAD SUCH AN OPPORTUNITY. 

*GEORGIA LAWS, SEPT. - OCT. 1962, EXTRA.  SESS.  7-31. 

MR. JUSTICE HARLAN, DISSENTING. 

I HAD NOT EXPECTED TO WITNESS THE DAY WHEN THE SUPREME COURT OF THE
UNITED STATES WOULD RENDER A DECISION WHICH CASTS GRAVE DOUBT ON THE
CONSTITUTIONALITY OF THE COMPOSITION OF THE HOUSE OF REPRESENTATIVES. 
IT IS NOT AN EXAGGERATION TO SAY THAT SUCH IS THE EFFECT OF TODAY'S
DECISION.  THE COURT'S HOLDING THAT THE CONSTITUTION REQUIRES STATES TO
SELECT REPRESENTATIVES EITHER BY ELECTIONS AT LARGE OR BY ELECTIONS IN
DISTRICTS COMPOSED "AS NEARLY AS IS PRACTICABLE" OF EQUAL POPULATION
PLACES IN JEOPARDY THE SEATS OF ALMOST ALL THE MEMBERS OF THE PRESENT
HOUSE OF REPRESENTATIVES. 

IN THE LAST CONGRESSIONAL ELECTION, IN 1962, REPRESENTATIVES FROM 42
STATES WERE ELECTED FROM CONGRESSIONAL DISTRICTS.  (FN1)  IN ALL BUT
FIVE OF THOSE STATES, THE DIFFERENCE BETWEEN THE POPULATIONS OF THE
LARGEST AND SMALLEST DISTRICTS EXCEEDED 100,000 PERSONS.  (FN2)  A
DIFFERENCE OF THIS MAGNITUDE IN THE SIZE OF DISTRICTS THE AVERAGE
POPULATION OF WHICH IN EACH STATE IS LESS THAN 500,000 (FN3) IS
PRESUMABLY NOT EQUALITY AMONG DISTRICTS "AS NEARLY AS IS PRACTICABLE,"
ALTHOUGH THE COURT DOES NOT REVEAL ITS DEFINITION OF THAT PHRASE. 
(FN4)  THUS, TODAY'S DECISION IMPUGNS THE VALIDITY OF THE ELECTION OF
398 REPRESENTATIVES FROM 37 STATES, LEAVING A "CONSTITUTIONAL" HOUSE OF
37 MEMBERS NOW SITTING.  (FN5) 

ONLY A DEMONSTRATION WHICH COULD NOT BE AVOIDED WOULD JUSTIFY THIS
COURT IN RENDERING A DECISION THE EFFECT OF WHICH, INESCAPABLY AS I SEE
IT, IS TO DECLARE CONSTITUTIONALLY DEFECTIVE THE VERY COMPOSITION OF A
COORDINATE BRANCH OF THE FEDERAL GOVERNMENT.  THE COURT'S OPINION NOT
ONLY FAILS TO MAKE SUCH A DEMONSTRATION, IT IS UNSOUND LOGICALLY ON ITS
FACE AND DEMONSTRABLY UNSOUND HISTORICALLY. 

                  I. 

BEFORE COMING TO GRIPS WITH THE REASONING THAT CARRIES SUCH
EXTRAORDINARY CONSEQUENCES, IT IS IMPORTANT TO HAVE FIRMLY IN MIND THE
PROVISIONS OF ARTICLE I OF THE CONSTITUTION WHICH CONTROL THIS CASE: 

"SECTION 2.  THE HOUSE OF REPRESENTATIVES SHALL BE COMPOSED OF
MEMBERS CHOSEN EVERY SECOND YEAR BY THE PEOPLE OF THE SEVERAL STATES,
AND THE ELECTORS IN EACH STATE SHALL HAVE THE QUALIFICATIONS REQUISITE
FOR ELECTORS OF THE MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE. 

     *         *         *         *         * 

"REPRESENTATIVES AND DIRECT TAXES SHALL BE APPORTIONED AMONG THE
SEVERAL STATES WHICH MAY BE INCLUDED WITHIN THIS UNION, ACCORDING TO
THEIR RESPECTIVE NUMBERS, WHICH SHALL BE DETERMINED BY ADDING TO THE
WHOLE NUMBER OF FREE PERSONS, INCLUDING THOSE BOUND TO SERVICE FOR A
TERM OF YEARS, AND EXCLUDING INDIANS NOT TAXED, THREE FIFTHS OF ALL
OTHER PERSONS.  THE ACTUAL ENUMERATION SHALL BE MADE WITHIN THREE YEARS
AFTER THE FIRST MEETING OF THE CONGRESS OF THE UNITED STATES, AND
WITHIN EVERY SUBSEQUENT TERM OF TEN YEARS, IN SUCH MANNER AS THEY SHALL
BY LAW DIRECT.  THE NUMBER OF REPRESENTATIVES SHALL NOT EXCEED ONE FOR
EVERY THIRTY THOUSAND, BUT EACH STATE SHALL HAVE AT LEAST ONE
REPRESENTATIVE  ...  . 

"SECTION 4.  THE TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR
SENATORS AND REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE BY THE
LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR
ALTER SUCH REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING SENATORS. 

     *         *   *         *         * 

"SECTION 5.  EACH HOUSE SHALL BE THE JUDGE OF THE ELECTIONS, RETURNS
AND QUALIFICATIONS OF ITS OWN MEMBERS  ...  ." 

AS WILL BE SHOWN, THESE CONSTITUTIONAL PROVISIONS AND THEIR
"HISTORICAL CONTEXT," ANTE, P. 7, ESTABLISH: 

1.  THAT CONGRESSIONAL REPRESENTATIVES ARE TO BE APPORTIONED AMONG
THE SEVERAL STATES LARGELY, BUT NOT ENTIRELY, ACCORDING TO POPULATION: 

2.  THAT THE STATES HAVE PLENARY POWER TO SELECT THEIR ALLOTTED
REPRESENTATIVES IN ACCORDANCE WITH ANY METHOD OF POPULAR ELECTION THEY
PLEASE, SUBJECT ONLY TO THE SUPERVISORY POWER OF CONGRESS; AND: 

3.  THAT THE SUPERVISORY POWER OF CONGRESS IS EXCLUSIVE. 

IN SHORT, IN THE ABSENCE OF LEGISLATION PROVIDING FOR EQUAL DISTRICTS
BY THE GEORGIA LEGISLATURE OR BY CONGRESS, THESE APPELLANTS HAVE NO
RIGHT TO THE JUDICIAL RELIEF WHICH THEY SEEK.  IT GOES WITHOUT SAYING
THAT IT IS BEYOND THE PROVINCE OF THIS COURT TO DECIDE WHETHER EQUALLY
POPULATED DISTRICTS IS THE PREFERABLE METHOD FOR ELECTING
REPRESENTATIVES, WHETHER STATE LEGISLATURES WOULD HAVE ACTED MORE
FAIRLY OR WISELY HAD THEY ADOPTED SUCH A METHOD, OR WHETHER CONGRESS
HAS BEEN DERELICT IN NOT REQUIRING STATE LEGISLATURES TO FOLLOW THAT
COURSE.  ONCE IT IS CLEAR THAT THERE IS NO CONSTITUTIONAL RIGHT AT
STAKE, THAT ENDS THE CASE. 

             II.    DISCLAIMING ALL RELIANCE ON OTHER PROVISIONS OF
THE CONSTITUTION, IN PARTICULAR THOSE OF THE FOURTEENTH AMENDMENT ON
WHICH THE APPELLANTS RELIED BELOW AND IN THIS COURT, THE COURT HOLDS
THAT THE PROVISION IN ART. I, SEC 2, FOR ELECTION OF REPRESENTATIVES
"BY THE PEOPLE" MEANS THAT CONGRESSIONAL DISTRICTS ARE TO BE "AS NEARLY
AS IS PRACTICABLE" EQUAL IN POPULATION, ANTE, PP. 7-8.  STRIPPED OF
RHETORIC AND A "HISTORICAL CONTEXT," ANTE, P. 7, WHICH BEARS LITTLE
RESEMBLANCE TO THE EVIDENCE FOUND IN THE PAGES OF HISTORY, SEE INFRA,
PP. 30-41, THE COURT'S OPINION SUPPORTS ITS HOLDING ONLY WITH THE BLAND
ASSERTION THAT "THE PRINCIPLE OF A HOUSE OF REPRESENTATIVES ELECTED 'BY
THE PEOPLE'" WOULD BE "CAST ASIDE" IF "A VOTE IS WORTH MORE IN ONE
DISTRICT THAN IN ANOTHER," ANTE, P. 8, I.E., IF CONGRESSIONAL DISTRICTS
WITHIN A STATE, EACH ELECTING A SINGLE REPRESENTATIVE, ARE NOT EQUAL IN
POPULATION.  THE FACT IS, HOWEVER, THAT GEORGIA'S 10 REPRESENTATIVES
ARE ELECTED "BY THE PEOPLE" OF GEORGIA, JUST AS REPRESENTATIVES FROM
OTHER STATES ARE ELECTED "BY THE PEOPLE OF THE SEVERAL STATES."  THIS
IS ALL THAT THE CONSTITUTION REQUIRES.  (FN6) 

ALTHOUGH THE COURT FINDS NECESSITY FOR ITS ARTIFICIAL CONSTRUCTION OF
ARTICLE I IN THE UNDOUBTED IMPORTANCE OF THE RIGHT TO VOTE, THAT RIGHT
IS NOT INVOLVED IN THIS CASE.  ALL OF THE APPELLANTS DO VOTE.  THE
COURT'S TALK ABOUT "DEBASEMENT" AND "DILUTION" OF THE VOTE IS A MODEL
OF CIRCULAR REASONING, IN WHICH THE PREMISES OF THE ARGUMENT FEED ON
THE CONCLUSION.  MOREOVER, BY FOCUSING EXCLUSIVELY ON NUMBERS IN
DISREGARD OF THE AREA AND SHAPE OF A CONGRESSIONAL DISTRICT AS WELL AS
PARTY AFFILIATIONS WITHIN THE DISTRICT, THE COURT DEALS IN ABSTRACTIONS
WHICH WILL BE RECOGNIZED EVEN BY THE POLITICALLY UNSOPHISTICATED TO
HAVE LITTLE RELEVANCE TO THE REALITIES OF POLITICAL LIFE. 

IN ANY EVENT, THE VERY SENTENCE OF ART. I, SEC 2, ON WHICH THE COURT
EXCLUSIVELY RELIES CONFERS THE RIGHT TO VOTE FOR REPRESENTATIVES ONLY
ON THOSE WHOM THE STATE HAS FOUND QUALIFIED TO VOTE FOR MEMBERS OF "THE
MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE."  SUPRA, P. 22.  SO FAR
AS ARTICLE I IS CONCERNED, IT IS WITHIN THE STATE'S POWER TO CONFER
THAT RIGHT ONLY ON PERSONS OF WEALTH OR OF A PARTICULAR SEX OR, IF THE
STATE CHOSE, LIVING IN SPECIFIED AREAS OF THE STATE.(FN7)  WERE GEORGIA
TO FIND THE RESIDENTS OF THE FIFTH DISTRICT UNQUALIFIED TO VOTE FOR
REPRESENTATIVES TO THE STATE HOUSE OF REPRESENTATIVES, THEY COULD NOT
VOTE FOR REPRESENTATIVES TO CONGRESS, ACCORDING TO THE EXPRESS WORDS OF
ART. I, SEC 2.  OTHER PROVISIONS OF THE CONSTITUTION WOULD, OF COURSE,
BE RELEVANT, BUT SO FAR AS ART, I, SEC 2 IS CONCERNED, THE
DISQUALIFICATION WOULD BE WITHIN GEORGIA'S POWER.  HOW CAN IT BE, THEN,
THAT THIS VERY SAME SENTENCE PREVENTS GEORGIA FROM APPORTIONING ITS
REPRESENTATIVES AS IT CHOOSES?  THE TRUTH IS THAT IT DOES NOT. 

THE COURT PURPORTS TO FIND SUPPORT FOR ITS POSITION IN THE THIRD
PARAGRAPH OF ART. I, SEC 2, WHICH PROVIDES FOR THE APPORTIONMENT OF
REPRESENTATIVES AMONG THE STATES.  THE APPEARANCE OF SUPPORT IN THAT
ELECTION OF REPRESENTATIVES WITHIN THE STATES AND THE APPORTIONMENT OF
REPRESENTATIVES AMONG THE STATES.  THOSE ISSUES ARE DISTINCT, AND WERE
SEPARATELY TREATED IN THE CONSTITUTION.  THE FALLACY OF THE COURT'S
REASONING IN THIS REGARD IS ILLUSTRATED BY ITS SLIDE, OBSCURED BY
INTERVENING DISCUSSION (SEE ANTE, PP. 13-14), FROM THE INTENTION OF THE
DELEGATES AT THE PHILADELPHIA CONVENTION "THAT IN ALLOCATING
CONGRESSMEN THE NUMBER ASSIGNED TO EACH STATE SHOULD BE DETERMINED
SOLELY BY THE NUMBER OF THE STATE'S INHABITANTS," ANTE, P. 13, TO A
"PRINCIPLE SOLEMNLY EMBODIED IN THE GREAT COMPROMISE - EQUAL
REPRESENTATION IN THE HOUSE FOR EQUAL NUMBERS OF PEOPLE," ANTE, P. 14. 
THE DELEGATES DID HAVE THE FORMER INTENTION AND MADE CLEAR PROVISION
FOR IT.  (FN8)  ALTHOUGH MANY, PERHAPS MOST, OF THEM ALSO BELIEVED
GENERALLY - BUT ASSUREDLY NOT IN THE PRECISE, FORMALISTIC WAY OF THE
MAJORITY OF THE COURT (FN9) - THAT WITHIN THE STATES REPRESENTATION
SHOULD BE BASED ON POPULATION, THEY DID NOT SURREPTITIOUSLY SLIP THEIR
BELIEF INTO THE CONSTITUTION IN THE PHRASE "BY THE PEOPLE," TO BE
DISCOVERED 175 YEARS LATER LIKE A SHAKESPEARIAN ANAGRAM. 

FAR FROM SUPPORTING THE COURT, THE APPORTIONMENT OF REPRESENTATIVES
AMONG THE STATES SHOWS HOW BLINDLY THE COURT HAS MARCHED TO ITS
DECISION.  REPRESENTATIVES WERE TO BE APPORTIONED AMONG THE STATES ON
THE BASIS OF FREE POPULATION PLUS THREE-FIFTHS OF THE SLAVE
POPULATION.  SINCE NO SLAVE VOTED, THE INCLUSION OF THREE-FIFTHS OF
THEIR NUMBER IN THE BASIS OF APPORTIONMENT GAVE THE FAVORED STATES
REPRESENTATION FAR IN EXCESS OF THEIR VOTING POPULATION.  IF, THEN,
SLAVES WERE INTENDED TO BE WITHOUT REPRESENTATION, ARTICLE I DID
EXACTLY WHAT THE COURT NOW SAYS IT PROHIBITED:  IT "WEIGHTED" THE VOTE
OF VOTERS IN THE SLAVE STATES.  ALTERNATIVELY, IT MIGHT HAVE BEEN
THOUGHT THAT REPRESENTATIVES ELECTED BY FREE MEN OF A STATE WOULD SPEAK
ALSO FOR THE SLAVES.  BUT SINCE THE SLAVES ADDED TO THE REPRESENTATION
ONLY OF THEIR OWN STATE, REPRESENTATIVES FROM THE SLAVE STATES COULD
HAVE BEEN THOUGHT TO SPEAK ONLY FOR THE SLAVES OF THEIR OWN STATES,
INDICATING BOTH THAT THE CONVENTION BELIEVED IT POSSIBLE FOR A
REPRESENTATIVE ELECTED BY ONE GROUP TO SPEAK FOR ANOTHER NONVOTING
GROUP AND THAT REPRESENTATIVES WERE IN LARGE DEGREE STILL THOUGHT OF AS
SPEAKING FOR THE WHOLE POPULATION OF A STATE.  (FN10) 

THERE IS A FURTHER BASIS FOR DEMONSTRATING THE HOLLOWNESS OF THE
COURT'S ASSERTION THAT ARTICLE I REQUIRES "ONE MAN'S VOTE IN A
CONGRESSIONAL ELECTION  ...  TO BE WORTH AS MUCH AS ANOTHER'S," ANTE,
P. 8.  NOTHING THAT THE COURT DOES TODAY WILL DISTURB THE FACT THAT
ALTHOUGH IN 1960 THE POPULATION OF AN AVERAGE CONGRESSIONAL DISTRICT
WAS 410,481, (FN11) THE STATES OF ALASKA, NEVADA, AND WYOMING EACH HAVE
A REPRESENTATIVE IN CONGRESS, ALTHOUGH THEIR RESPECTIVE POPULATIONS ARE
226,167, 285,278, AND 330,066.  (FN12)  IN ENTIRE DISREGARD OF
POPULATION, ART. I, SEC 2, GUARANTEES EACH OF THESE STATES AND EVERY
OTHER STATE "AT LEAST ONE REPRESENTATIVE."  IT IS WHIMSICAL TO ASSERT
IN THE FACE OF THIS GUARANTEE THAT AN ABSOLUTE PRINCIPLE OF "EQUAL
REPRESENTATION IN THE HOUSE FOR EQUAL NUMBERS OF PEOPLE" IS "SOLEMNLY
EMBODIED" IN ARTICLE I. ALL THAT THERE IS IS A PROVISION WHICH BASES
REPRESENTATION IN THE HOUSE, GENERALLY BUT NOT ENTIRELY, ON THE
POPULATION OF THE STATES.  THE PROVISION FOR REPRESENTATION OF EACH
STATE IN THE HOUSE OF REPRESENTATIVES IS NOT A MERE EXCEPTION TO THE
PRINCIPLE FRAMED BY THE MAJORITY; IT SHOWS THAT NO SUCH PRINCIPLE IS TO
BE FOUND. 

FINALLY IN THIS ARRAY OF HURDLES TO ITS DECISION WHICH THE COURT
SURMOUNTS ONLY BY KNOCKING THEM DOWN IS SEC 4 OF ART. I WHICH STATES
SIMPLY: 

"THE TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR SENATORS AND
REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE BY THE LEGISLATURE
THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR ALTER SUCH
REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING SENATORS." 

THE DELEGATES WERE WELL AWARE OF THE PROBLEM OF "ROTTEN BOROUGHS," AS
MATERIAL CITED BY THE COURT, ANTE, PP. 14-15, AND HEREAFTER MAKES
PLAIN.  IT CANNOT BE SUPPOSED THAT DELEGATES TO THE CONVENTION WOULD
HAVE LABORED TO ESTABLISH A PRINCIPLE OF EQUAL REPRESENTATION ONLY TO
BURY IT, ONE WOULD HAVE THOUGHT BEYOND DISCOVERY, IN SEC 2, AND OMIT
ALL MENTION OF IT FROM SEC 4, WHICH DEALS EXPLICITLY WITH THE CONDUCT
OF ELECTIONS.  SECTION 4 STATES WITHOUT QUALIFICATION THAT THE STATE
LEGISLATURES SHALL PRESCRIBE REGULATIONS FOR THE CONDUCT OF ELECTIONS
FOR REPRESENTATIVES AND, EQUALLY WITHOUT QUALIFICATION, THAT CONGRESS
MAY MAKE OR ALTER SUCH REGULATIONS.  THERE IS NOTHING TO INDICATE ANY
LIMITATION WHATSOEVER ON THIS GRANT OF PLENARY INITIAL AND SUPERVISORY
POWER.  THE COURT'S HOLDING IS, OF COURSE, DEROGATORY NOT ONLY OF THE
POWER OF THE STATE LEGISLATURES BUT ALSO OF THE POWER OF CONGRESS, BOTH
THEORETICALLY AND AS THEY HAVE ACTUALLY EXERCISED THEIR POWER.  SEE
INFRA, PP. 42-45.   (FN13)  IT FREEZES UPON BOTH, FOR NO REASON OTHER
THAN THAT IT SEEMS WISE TO THE MAJORITY OF THE PRESENT COURT, A
PARTICULAR POLITICAL THEORY FOR THE SELECTION OF REPRESENTATIVES. 

                                  III. 

THERE IS DUBIOUS PROPRIETY IN TURNING TO THE "HISTORICAL CONTEXT" OF
CONSTITUTIONAL PROVISIONS WHICH SPEAK SO CONSISTENTLY AND PLAINLY. 
BUT, AS ONE MIGHT EXPECT WHEN THE CONSTITUTION ITSELF IS FREE FROM
AMBIGUITY, THE SURROUNDING HISTORY MAKES WHAT IS ALREADY CLEAR EVEN
CLEARER. 

AS THE COURT REPEATEDLY EMPHASIZES, DELEGATES TO THE PHILADELPHIA
CONVENTION FREQUENTLY EXPRESSED THEIR VIEW THAT REPRESENTATION SHOULD
BE BASED ON POPULATION.  THERE WERE ALSO, HOWEVER, MANY STATEMENTS
FAVORING LIMITED MONARCHY AND PROPERTY QUALIFICATIONS FOR SUFFRAGE AND
EXPRESSIONS OF DISAPPROVAL FOR UNRESTRICTED DEMOCRACY.  (FN14)  SUCH
EXPRESSIONS PROVE AS LITTLE ON ONE SIDE OF THIS CASE AS THEY DO ON THE
OTHER.  WHATEVER THE DOMINANT POLITICAL PHILOSOPHY AT THE CONVENTION,
ONE THING SEEMS CLEAR:  IT IS IN THE LAST DEGREE UNLIKELY THAT MOST OR
EVEN MANY OF THE DELEGATES WOULD HAVE SUBSCRIBED TO THE PRINCIPLE OF
"ONE PERSON, ONE VOTE," ANTE, P. 18.  (FN15)  MOREOVER, THE STATEMENTS
APPROVING POPULATION-BASED REPRESENTATION WERE FOCUSED ON THE PROBLEM
OF HOW REPRESENTATION SHOULD BE APPORTIONED AMONG THE STATES IN THE
HOUSE OF REPRESENTATIVES.  THE GREAT COMPROMISE CONCERNED
REPRESENTATION OF THE STATES IN THE CONGRESS.  IN ALL OF THE DISCUSSION
SURROUNDING THE BASIS OF REPRESENTATION OF THE HOUSE AND ALL OF THE
DISCUSSION WHETHER REPRESENTATIVES SHOULD BE ELECTED BY THE
LEGISLATURES OR THE PEOPLE OF THE STATES, THERE IS NOTHING WHICH
SUGGESTS EVEN REMOTELY THAT THE DELEGATES HAD IN MIND THE PROBLEM OF
DISTRICTING WITHIN A STATE.  (FN16) 

THE SUBJECT OF DISTRICTING WITHIN THE STATES IS DISCUSSED EXPLICITLY
WITH REFERENCE TO THE PROVISIONS OF ART. I, SEC 4, WHICH THE COURT SO
POINTEDLY NEGLECTS.  THE COURT STATES:  "THE DELEGATES REFERRED TO
ROTTEN BOROUGH APPORTIONMENTS IN SOME OF THE STATE LEGISLATURES AS THE
KIND OF OBJECTIONABLE GOVERNMENTAL ACTION THAT THE CONSTITUTION SHOULD
NOT TOLERATE IN THE ELECTION OF CONGRESSIONAL REPRESENTATIVES."  ANTE,
P. 15.  THE REMARKS OF MADISON CITED BY THE COURT ARE AS FOLLOWS: 

"THE NECESSITY OF A GENL.  GOVT.  SUPPOSES THAT THE STATE
LEGISLATURES WILL SOMETIMES FAIL OR REFUSE TO CONSULT THE COMMON
INTEREST AT THE EXPENSE OF THEIR LOCAL CONVENIENCY OR PREJUDICES.  THE
POLICY OF REFERRING THE APPOINTMENT OF THE HOUSE OF REPRESENTATIVES TO
THE PEOPLE AND NOT TO THE LEGISLATURES OF THE STATES, SUPPOSES THAT THE
RESULT WILL BE SOMEWHAT INFLUENCED BY THE MODE.  THIS VIEW OF THE
QUESTION SEEMS TO DECIDE THAT THE LEGISLATURES OF THE STATES OUGHT NOT
TO HAVE THE UNCONTROULED RIGHT OF REGULATING THE TIMES PLACES & MANNER
OF HOLDING ELECTIONS.  THESE WERE WORDS OF GREAT LATITUDE.  IT WAS
IMPOSSIBLE TO FORESEE ALL THE ABUSES THAT MIGHT BE MADE OF THE
DISCRETIONARY POWER.  WHETHER THE ELECTORS SHOULD VOTE BY BALLOT OR
VIVA VOCE, SHOULD ASSEMBLE AT THIS PLACE OR THAT PLACE; SHOULD BE
DIVIDED INTO DISTRICTS OR ALL MEET AT ONE PLACE, SHD ALL VOTE FOR ALL
THE REPRESENTATIVES; OR ALL IN A DISTRICT VOTE FOR A NUMBER ALLOTTED TO
THE DISTRICT; THESE & MANY OTHER POINTS WOULD DEPEND ON THE
LEGISLATURES, AND MIGHT MATERIALLY AFFECT THE APPOINTMENTS.  WHENEVER
THE STATE LEGISLATURES HAD A FAVORITE MEASURE TO CARRY, THEY WOULD TAKE
CARE SO TO MOULD THEIR REGULATIONS AS TO FAVOR THE CANDIDATES THEY
WISHED TO SUCCEED.  BESIDES, THE INEQUALITY OF THE REPRESENTATION IN
THE LEGISLATURES OF PARTICULAR STATES, WOULD PRODUCE A LIKE INEQUALITY
IN THEIR REPRESENTATION IN THE NATL.  LEGISLATURE, AS IT WAS PRESUMABLE
THAT THE COUNTIES HAVING THE POWER IN THE FORMER CASE WOULD SECURE IT
TO THEMSELVES IN THE LATTER.  WHAT DANGER COULD THERE BE IN GIVING A
CONTROULING POWER TO THE NATL.  LEGISLATURE?"  (FN17) 

THESE REMARKS OF MADISON WERE IN RESPONSE TO A PROPOSAL TO STRIKE OUT
THE PROVISION FOR CONGRESSIONAL SUPERVISORY POWER OVER THE REGULATION
OF ELECTIONS IN ART. I, SEC 4.  SUPPORTED BY OTHERS AT THE CONVENTION,
(FN18) AND NOT CONTRADICTED IN ANY RESPECT, THEY INDICATE AS CLEARLY AS
MAY BE THAT THE CONVENTION UNDERSTOOD THE STATE LEGISLATURES TO HAVE
PLENARY POWER OVER THE CONDUCT OF ELECTIONS FOR REPRESENTATIVES,
INCLUDING THE POWER TO DISTRICT WELL OR BADLY, SUBJECT ONLY TO THE
SUPERVISORY POWER OF CONGRESS.  HOW, THEN, CAN THE COURT HOLD THAT ART.
I, SEC 2, PREVENTS THE STATE LEGISLATURES FROM DISTRICTING AS THEY
CHOOSE?  IF THE COURT WERE CORRECT, MADISON'S REMARKS WOULD HAVE BEEN
POINTLESS.  ONE WOULD EXPECT, AT THE VERY LEAST, SOME REFERENCE TO ART.
I, SEC 2, AS A LIMITING FACTOR ON THE STATES.  THIS IS THE "HISTORICAL
CONTEXT" WHICH THE CONVENTION DEBATES PROVIDE. 

MATERIALS SUPPLEMENTARY TO THE DEBATES ARE AS UNEQUIVOCAL.  IN THE
RATIFYING CONVENTIONS, THERE WAS NO SUGGESTION THAT THE PROVISIONS OF
ART, I, SEC 2, RESTRICTED THE POWER OF THE STATES TO PRESCRIBE THE
CONDUCT OF ELECTIONS CONFERRED ON THEM BY ART. I, SEC 4.  NONE OF THE
COURT'S REFERENCES TO THE RATIFICATION DEBATES SUPPORTS THE VIEW THAT
THE PROVISION FOR ELECTION OF REPRESENTATIVES "BY THE PEOPLE" WAS
INTENDED TO HAVE ANY APPLICATION TO THE APPORTIONMENT OF
REPRESENTATIVES WITHIN THE STATES; IN EACH INSTANCE, THE CITED PASSAGE
MERELY REPEATS WHAT THE CONSTITUTION ITSELF PROVIDES:  THAT
REPRESENTATIVES WERE TO BE ELECTED BY THE PEOPLE OF THE STATES. 
(FN19) 

IN SHARP CONTRAST TO THIS UNANIMOUS SILENCE ON THE ISSUE OF THIS CASE
WHEN ART. I, SEC 2, WAS BEING DISCUSSED, THERE ARE REPEATED REFERENCES
TO APPORTIONMENT AND RELATED PROBLEMS AFFECTING THE STATES' SELECTION
OF REPRESENTATIVES IN CONNECTION WITH ART. I, SEC 4.  THE DEBATES IN
THE RATIFYING CONVENTIONS, AS CLEARLY AS MADISON'S STATEMENT AT THE
PHILADELPHIA CONVENTION, SUPRA, PP. 32-33, INDICATE THAT UNDER SEC 4,
THE STATE LEGISLATURES, SUBJECT ONLY TO THE ULTIMATE CONTROL OF
CONGRESS, COULD DISTRICT AS THEY CHOSE.    AT THE MASSACHUSETTS
CONVENTION, JUDGE DANA APPROVED SEC 4 BECAUSE IT GAVE CONGRESS POWER TO
PREVENT A STATE LEGISLATURE FROM COPYING GREAT BRITAIN, WHERE "A
BOROUGH OF BUT TWO OR THREE COTTAGES HAS A RIGHT TO SEND TWO
REPRESENTATIVES TO PARLIAMENT, WHILE BIRMINGHAM, A LARGE AND POPULOUS
MANUFACTURING TOWN, LATELY SPRUNG UP, CANNOT SEND ONE."  (FN20)  HE
NOTED THAT THE RHODE ISLAND LEGISLATURE WAS "ABOUT ADOPTING" A PLAN
WHICH WOULD "DEPRIVE THE TOWNS OF NEWPORT AND PROVIDENCE OF THEIR
WEIGHT."  (FN21)  MR. KING NOTED THE SITUATION IN CONNECTICUT, WHERE
"HARTFORD, ONE OF THEIR LARGEST TOWNS, SENDS NO MORE DELEGATES THAN ONE
OF THEIR SMALLEST CORPORATIONS," AND IN SOUTH CAROLINA:  "THE BACK
PARTS OF CAROLINA HAVE INCREASED GREATLY SINCE THE ADOPTION OF THEIR
CONSTITUTION, AND HAVE FREQUENTLY ATTEMPTED AN ALTERATION OF THIS
UNEQUAL MODE OF REPRESENTATION BUT THE MEMBERS FROM CHARLESTON, HAVING
THE BALANCE SO MUCH IN THEIR FAVOR, WILL NOT CONSENT TO AN ALTERATION,
AND WE SEE THAT THE DELEGATES FROM CAROLINA IN CONGRESS HAVE ALWAYS
BEEN CHOSEN BY THE DELEGATES OF THAT CITY."  (FN22)  KING STATED THAT
THE POWER OF CONGRESS UNDER SEC 4 WAS NECESSARY TO "CONTROL IN THIS
CASE"; OTHERWISE, HE SAID, "THE REPRESENTATIVES  ...  FROM THAT STATE
(SOUTH CAROLINA), WILL NOT BE CHOSEN BY THE PEOPLE, BUT WILL BE THE
REPRESENTATIVES OF A FRACTION OF THAT STATE."  (FN23) 

MR. PARSONS WAS AS EXPLICIT. 

"MR. PARSONS CONTENDED FOR VESTING IN CONGRESS THE POWERS CONTAINED
IN THE 4TH SECTION (OF ART. I), NOT ONLY AS THOSE POWERS WERE NECESSARY
FOR PRESERVING THE UNION, BUT ALSO FOR SECURING TO THE PEOPLE THEIR
EQUAL RIGHTS OF ELECTION  ...  .  STATE LEGISLATURES MIGHT MAKE AN
UNEQUAL AND PARTIAL DIVISION OF THE STATES INTO DISTRICTS FOR THE
ELECTION OF REPRESENTATIVES, OR THEY MIGHT EVEN DISQUALIFY ONE THIRD OF
THE ELECTORS.  WITHOUT THESE POWERS IN CONGRESS, THE PEOPLE CAN HAVE NO
REMEDY; BUT THE 4TH SECTION PROVIDES A REMEDY, A CONTROLLING POWER IN A
LEGISLATURE, COMPOSED OF SENATORS AND REPRESENTATIVES OF TWELVE STATES,
WITHOUT THE INFLUENCE OF OUR COMMOTIONS AND FACTIONS, WHO WILL HEAR
IMPARTIALLY, AND PRESERVE AND RESTORE TO THE PEOPLE THEIR EQUAL AND
SACRED RIGHTS OF ELECTION.  PERHAPS IT THEN WILL BE OBJECTED, THAT FROM
THE SUPPOSED OPPOSITION OF INTERESTS IN THE FEDERAL LEGISLATURE, THEY
MAY NEVER AGREE UPON ANY REGULATIONS; BUT REGULATIONS NECESSARY FOR THE
INTERESTS OF THE PEOPLE CAN NEVER BE OPPOSED TO THE INTERESTS OF EITHER
OF THE BRANCHES OF THE FEDERAL LEGISLATURE; BECAUSE THAT THE INTERESTS
OF THE PEOPLE REQUIRE THAT THE MUTUAL POWERS OF THAT LEGISLATURE SHOULD
BE PRESERVED UNIMPAIRED, IN ORDER TO BALANCE THE GOVERNMENT.  INDEED,
IF THE CONGRESS COULD NEVER AGREE ON ANY REGULATIONS, THEN CERTAINLY NO
OBJECTION TO THE 4TH SECTION CAN REMAIN; FOR THE REGULATIONS INTRODUCED
BY THE STATE LEGISLATURES WILL BE THE GOVERNING RULE OF ELECTIONS,
UNTIL CONGRESS CAN AGREE UPON ALTERATIONS."  (FN24) 

IN THE NEW YORK CONVENTION, DURING THE DISCUSSION OF SEC 4, MR. JONES
OBJECTED TO CONGRESSIONAL POWER TO REGULATE ELECTIONS BECAUSE SUCH
POWER "MIGHT BE SO CONSTRUED AS TO DEPRIVE THE STATES OF AN ESSENTIAL
RIGHT, WHICH, IN THE TRUE DESIGN OF THE CONSTITUTION, WAS TO BE
RESERVED TO THEM."  (FN25)  HE PROPOSED A RESOLUTION EXPLAINING THAT
CONGRESS HAD SUCH POWER ONLY IF A STATE LEGISLATURE NEGLECTED OR
REFUSED OR WAS UNABLE TO REGULATE ELECTIONS ITSELF.  (FN26)  MR. SMITH
PROPOSED TO ADD TO THE RESOLUTION "  ...  THAT EACH STATE SHALL BE
DIVIDED INTO AS MANY DISTRICTS AS THE REPRESENTATIVES IT IS ENTITLED
TO, AND THAT EACH REPRESENTATIVE SHALL BE CHOSEN BY A MAJORITY OF
VOTES."  (FN27)  HE STATED THAT HIS PROPOSAL WAS DESIGNED TO PREVENT
ELECTIONS AT LARGE, WHICH MIGHT RESULT IN ALL THE REPRESENTATIVES BEING
"TAKEN FROM A SMALL PART OF THE STATE."  (FN28)  HE EXPLAINED FURTHER
THAT HIS PROPOSAL WAS NOT INTENDED TO IMPOSE A REQUIREMENT ON THE OTHER
STATES BUT "TO ENABLE THE STATES TO ACT THEIR DISCRETION, WITHOUT THE
CONTROL OF CONGRESS."  (FN29)  AFTER FURTHER DISCUSSION OF DISTRICTING,
THE PROPOSED RESOLUTION WAS MODIFIED TO READ AS FOLLOWS: 

"RESOLVED  ...  THAT NOTHING IN THIS CONSTITUTION SHALL BE CONSTRUED
TO PREVENT THE LEGISLATURE OF ANY STATE TO PASS LAWS, FROM TIME TO
TIME, TO DIVIDE SUCH STATE INTO AS MANY CONVENIENT DISTRICTS AS THE
STATE SHALL BE ENTITLED TO ELECT REPRESENTATIVES FOR CONGRESS, NOR TO
PREVENT SUCH LEGISLATURE FROM MAKING PROVISION, THAT THE ELECTORS IN
EACH DISTRICT SHALL CHOOSE A CITIZEN OF THE UNITED STATES, WHO SHALL
HAVE BEEN AN INHABITANT OF THE DISTRICT, FOR THE TERM OF ONE YEAR
IMMEDIATELY PRECEDING THE TIME OF HIS ELECTION, FOR ONE OF THE
REPRESENTATIVES OF SUCH STATE."  (FN30) 

DESPITE THIS CAREFUL, ADVERTENT ATTENTION TO THE PROBLEM OF
CONGRESSIONAL DISTRICTING, ART. I, SEC 2, WAS NEVER MENTIONED.  EQUALLY
SIGNIFICANT IS THE FACT THAT THE PROPOSED RESOLUTION EXPRESSLY
EMPOWERING THE STATES TO ESTABLISH CONGRESSIONAL DISTRICTS CONTAINS NO
MENTION OF A REQUIREMENT THAT THE DISTRICTS BE EQUAL IN POPULATION. 

IN THE VIRGINIA CONVENTION, DURING THE DISCUSSION OF SEC 4, MADISON
AGAIN STATED UNEQUIVOCALLY THAT HE LOOKED SOLELY TO THAT SECTION TO
PREVENT UNEQUAL DISTRICTING: 

"  ...  IT WAS THOUGHT THAT THE REGULATION OF TIME, PLACE, AND
MANNER, OF ELECTING THE REPRESENTATIVES, SHOULD BE UNIFORM THROUGHOUT
THE CONTINENT.  SOME STATES MIGHT REGULATE THE ELECTIONS ON THE
PRINCIPLES OF EQUALITY, AND OTHERS MIGHT REGULATE THEM OTHERWISE.  THIS
DIVERSITY WOULD BE OBVIOUSLY UNJUST.  ELECTIONS ARE REGULATED NOW
UNEQUALLY IN SOME STATES, PARTICULARLY SOUTH CAROLINA, WITH RESPECT TO
CHARLESTON, WHICH IS REPRESENTED BY THIRTY MEMBERS.  SHOULD THE PEOPLE
OF ANY STATE BY ANY MEANS BE DEPRIVED OF THE RIGHT OF SUFFRAGE, IT WAS
JUDGED PROPER THAT IT SHOULD BE REMEDIED BY THE GENERAL GOVERNMENT.  IT
WAS FOUND IMPOSSIBLE TO FIX THE TIME, PLACE, AND MANNER, OF THE
ELECTION OF REPRESENTATIVES, IN THE CONSTITUTION.  IT WAS FOUND
NECESSARY TO LEAVE THE REGULATION OF THESE, IN THE FIRST PLACE, TO THE
STATE GOVERNMENTS, AS BEING BEST ACQUAINTED WITH THE SITUATION OF THE
PEOPLE, SUBJECT TO THE CONTROL OF THE GENERAL GOVERNMENT, IN ORDER TO
ENABLE IT TO PRODUCE UNIFORMITY, AND PREVENT ITS OWN DISSOLUTION.  AND,
CONSIDERING THE STATE GOVERNMENTS AND GENERAL GOVERNMENT AS DISTINCT
BODIES, ACTING IN DIFFERENT AND INDEPENDENT CAPACITIES FOR THE PEOPLE,
IT WAS THOUGHT THE PARTICULAR REGULATIONS SHOULD BE SUBMITTED TO THE
FORMER, AND THE GENERAL REGULATIONS TO THE LATTER.  WERE THEY
EXCLUSIVELY UNDER THE CONTROL OF THE STATE GOVERNMENTS, THE GENERAL
GOVERNMENT MIGHT EASILY BE DISSOLVED.  BUT IF THEY BE REGULATED
PROPERLY BY THE STATE LEGISLATURES, THE CONGRESSIONAL CONTROL WILL VERY
PROBABLY NEVER BE EXERCISED.  THE POWER APPEARS TO ME SATISFACTORY, AND
AS UNLIKELY TO BE ABUSED AS ANY PART OF THE CONSTITUTION."  (FN31) 

DESPITE THE APPARENT FEAR THAT SEC 4 WOULD BE ABUSED, NO ONE
SUGGESTED THAT IT COULD SAFELY BE DELETED BECAUSE SEC 2 MADE IT
UNNECESSARY. 

IN THE NORTH CAROLINA CONVENTION, AGAIN DURING DISCUSSION OF SEC 4,
MR. STEELE POINTED OUT THAT THE STATE LEGISLATURES HAD THE INITIAL
POWER TO REGULATE ELECTIONS, AND THAT THE NORTH CAROLINA LEGISLATURE
WOULD REGULATE THE FIRST ELECTION AT LEAST "AS THEY THINK PROPER." 
(FN32)  RESPONDING TO THE SUGGESTION THAT THE CONGRESS WOULD FAVOR THE
SEACOAST, HE ASSERTED THAT THE COURTS WOULD NOT UPHOLD NOR THE PEOPLE
OBEY "LAWS INCONSISTENT WITH THE CONSTITUTION."  (FN33)  (THE
PARTICULAR POSSIBILITIES THAT STEELE HAD IN MIND WERE APPARENTLY THAT
CONGRESS MIGHT ATTEMPT TO PRESCRIBE THE QUALIFICATIONS FOR ELECTORS OR
"TO MAKE THE PLACE OF ELECTIONS INCONVENIENT.")  (FN34)  STEELE WAS
CONCERNED WITH THE DANGER OF CONGRESSIONAL USURPATION, UNDER THE
AUTHORITY OF SEC 4, OF POWER BELONGING TO THE STATES.  SECTION 2 WAS
NOT MENTIONED. 

IN THE PENNSYLVANIA CONVENTION, JAMES WILSON DESCRIBED ART. I, SEC 4,
AS PLACING "INTO THE HANDS OF THE STATE LEGISLATURES" THE POWER TO
REGULATE ELECTIONS, BUT RETAINING FOR CONGRESS "SELF-PRESERVING POWER"
TO MAKE REGULATIONS LEST "THE GENERAL GOVERNMENT  ...  LIE PROSTRATE AT
THE MERCY OF THE LEGISLATURES OF THE SEVERAL STATES."  (FN35)  WITHOUT
SUCH POWER, WILSON STATED, THE STATE GOVERNMENTS MIGHT "MAKE IMPROPER
REGULATIONS" OR "MAKE NO REGULATIONS AT ALL."  (FN36) SECTION 2 WAS NOT
MENTIONED. 

NEITHER OF THE NUMBERS OF THE FEDERALIST FROM WHICH THE COURT QUOTES,
ANTE, PP. 15, 18, FAIRLY SUPPORTS ITS HOLDING.  IN NO. 57, MADISON
MERELY STATED HIS ASSUMPTION THAT PHILADELPHIA'S POPULATION WOULD
ENTITLE IT TO TWO REPRESENTATIVES IN ANSWERING THE ARGUMENT THAT
CONGRESSIONAL CONSTITUENCIES WOULD BE TOO LARGE FOR GOOD GOVERNMENT. 
(FN37)  IN NO. 54, HE DISCUSSED THE INCLUSION OF SLAVES IN THE BASIS OF
APPORTIONMENT.  HE SAID:  "IT IS AGREED ON ALL SIDES, THAT NUMBERS ARE
THE BEST SCALE OF WEALTH AND TAXATION, AS THEY ARE THE ONLY PROPER
SCALE OF REPRESENTATION."  (FN38)  THIS STATEMENT WAS OFFERED SIMPLY TO
SHOW THAT THE SLAVE POPULATION COULD NOT REASONABLY BE INCLUDED IN THE
BASIS OF APPORTIONMENT OF DIRECT TAXES AND EXCLUDED FROM THE BASIS OF
APPORTIONMENT OF REPRESENTATION.  FURTHER ON IN THE SAME NUMBER OF THE
FEDERALIST, MADISON POINTED OUT THE FUNDAMENTAL CLEAVAGE WHICH ARTICLE
I MADE BETWEEN APPORTIONMENT OF REPRESENTATIVES AMONG THE STATES AND
THE SELECTION OF REPRESENTATIVES WITHIN EACH STATE: 

"IT IS A FUNDAMENTAL PRINCIPLE OF THE PROPOSED CONSTITUTION, THAT AS
THE AGGREGATE NUMBER OF REPRESENTATIVES ALLOTTED TO THE SEVERAL STATES,
IS TO BE DETERMINED BY A FOEDERAL RULE FOUNDED ON THE AGGREGATE NUMBER
OF INHABITANTS, SO THE RIGHT OF CHOOSING THIS ALLOTTED NUMBER IN EACH
STATE IS TO BE EXERCISED BY SUCH PART OF THE INHABITANTS, AS THE STATE
ITSELF MAY DESIGNATE.  THE QUALIFICATIONS ON WHICH THE RIGHT OF
SUFFRAGE DEPEND, ARE NOT PERHAPS THE SAME IN ANY TWO STATES.  IN SOME
OF THE STATES THE DIFFERENCE IS VERY MATERIAL.  IN EVERY STATE, A
CERTAIN PROPORTION OF INHABITANTS ARE DEPRIVED OF THIS RIGHT BY THE
CONSTITUTION OF THE STATE, WHO WILL BE INCLUDED IN THE CENSUS BY WHICH
THE FOEDERAL CONSTITUTION APPORTIONS THE REPRESENTATIVES.  IN THIS
POINT OF VIEW, THE SOUTHERN STATES MIGHT RETORT THE COMPLAINT, BY
INSISTING, THAT THE PRINCIPLE LAID DOWN BY THE CONVENTION REQUIRED THAT
NO REGARD SHOULD BE HAD TO THE POLICY OF PARTICULAR STATES TOWARDS
THEIR OWN INHABITANTS; AND CONSEQUENTLY, THAT THE SLAVES AS INHABITANTS
SHOULD HAVE BEEN ADMITTED INTO THE CENSUS ACCORDING TO THEIR FULL
NUMBER, IN LIKE MANNER WITH OTHER INHABITANTS, WHO BY THE POLICY OF
OTHER STATES, ARE NOT ADMITTED TO ALL THE RIGHTS OF CITIZENS."  (FN39) 

IN THE FEDERALIST, NO. 59, HAMILTON DISCUSSED THE PROVISION OF SEC 4
FOR REGULATION OF ELECTIONS.  HE JUSTIFIED CONGRESS' POWER WITH THE
"PLAIN PROPOSITION, THAT EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF
THE MEANS OF ITS OWN PRESERVATION."  (FN40)  FURTHER ON, HE SAID: 

"IT WILL NOT BE ALLEDGED THAT AN ELECTION LAW COULD HAVE BEEN FRAMED
AND INSERTED INTO THE CONSTITUTION, WHICH WOULD HAVE BEEN ALWAYS
APPLICABLE TO EVERY PROBABLE CHANGE IN THE SITUATION OF THE COUNTRY;
AND IT WILL THEREFORE NOT BE DENIED THAT A DISCRETIONARY POWER OVER
ELECTIONS OUGHT TO EXIST SOMEWHERE.  IT WILL, I PRESUME, BE AS READILY
CONCEDED, THAT THERE WERE ONLY THREE WAYS, IN WHICH THIS POWER COULD
HAVE BEEN REASONABLY MODIFIED AND DISPOSED, THAT IT MUST EITHER HAVE
BEEN LODGED WHOLLY IN THE NATIONAL LEGISLATURE, OR WHOLLY IN THE STATE
LEGISLATURES, OR PRIMARILY IN THE LATTER, AND ULTIMATELY IN THE
FORMER.  THE LAST MODE HAS WITH REASON BEEN PREFERRED BY THE
CONVENTION.  THEY HAVE SUBMITTED THE REGULATION OF ELECTIONS FOR THE
FOEDERAL GOVERNMENT IN THE FIRST INSTANCE TO THE LOCAL ADMINISTRATIONS;
WHICH IN ORDINARY CASES, AND WHEN NO IMPROPER VIEWS PREVAIL, MAY BE
BOTH MORE CONVENIENT AND MORE SATISFACTORY; BUT THEY HAVE RESERVED TO
THE NATIONAL AUTHORITY A RIGHT TO INTERPOSE, WHENEVER EXTRAORDINARY
CIRCUMSTANCES MIGHT RENDER THAT INTERPOSITION NECESSARY TO ITS
SAFETY."  (FN41) 

THUS, IN THE NUMBER OF THE FEDERALIST WHICH DOES DISCUSS THE
REGULATION OF ELECTIONS, THE VIEW IS UNEQUIVOCALLY STATED THAT THE
STATE LEGISLATURES HAVE PLENARY POWER OVER THE CONDUCT OF CONGRESSIONAL
ELECTIONS SUBJECT ONLY TO SUCH REGULATIONS AS CONGRESS ITSELF MIGHT
PROVIDE. 

     *      *         *         *         * 

THE UPSHOT OF ALL THIS IS THAT THE LANGUAGE OF ART. I, SECS 2 AND 4,
THE SURROUNDING TEXT, AND THE RELEVANT HISTORY ARE ALL IN STRONG AND
CONSISTENT DIRECT CONTRADICTION OF THE COURT'S HOLDING.  THE
CONSTITUTIONAL SCHEME VESTS IN THE STATES PLENARY POWER TO REGULATE THE
CONDUCT OF ELECTIONS FOR REPRESENTATIVES, AND, IN ORDER TO PROTECT THE
FEDERAL GOVERNMENT, PROVIDES FOR CONGRESSIONAL SUPERVISION OF THE
STATES' EXERCISE OF THEIR POWER.  WITHIN THIS SCHEME, THE APPELLANTS DO
NOT HAVE THE RIGHT WHICH THEY ASSERT, IN THE ABSENCE OF PROVISION FOR
EQUAL DISTRICTS BY THE GEORGIA LEGISLATURE OR THE CONGRESS.  THE
CONSTITUTIONAL RIGHT WHICH THE COURT CREATES IS MANUFACTURED OUT OF
WHOLE CLOTH. 

                 IV. 

THE UNSTATED PREMISE OF THE COURT'S CONCLUSION QUITE OBVIOUSLY IS
THAT THE CONGRESS HAS NOT DEALT, AND THE COURT BELIEVES IT WILL NOT
DEAL, WITH THE PROBLEM OF CONGRESSIONAL APPORTIONMENT IN ACCORDANCE
WITH WHAT THE COURT BELIEVES TO BE SOUND POLITICAL PRINCIPLES.  LAYING
ASIDE FOR THE MOMENT THE VALIDITY OF SUCH A CONSIDERATION AS A FACTOR
IN CONSTITUTIONAL INTERPRETATION, IT BECOMES RELEVANT TO EXAMINE THE
HISTORY OF CONGRESSIONAL ACTION UNDER ART. I, SEC 4.  THIS HISTORY
REVEALS THAT THE COURT IS NOT SIMPLY UNDERTAKING TO EXERCISE A POWER
WHICH THE CONSTITUTION RESERVES TO THE CONGRESS; IT IS ALSO OVERRULING
CONGRESSIONAL JUDGMENT.    CONGRESS EXERCISED ITS POWER TO REGULATE
ELECTIONS FOR THE HOUSE OF REPRESENTATIVES FOR THE FIRST TIME IN 1842,
WHEN IT PROVIDED THAT REPRESENTATIVES FROM STATES "ENTITLED TO MORE
THAN ONE REPRESENTATIVE" SHOULD BE ELECTED BY DISTRICTS OF CONTIGUOUS
TERRITORY, "NO ONE DISTRICT ELECTING MORE THAN ONE REPRESENTATIVE." 
(FN42) DROPPED, (FN43) AND REINSTATED.  (FN44)  IN 1872, CONGRESS
REQUIRED THAT REPRESENTATIVES "BE ELECTED BY DISTRICTS COMPOSED OF
CONTIGUOUS TERRITORY, AND CONTAINING AS NEARLY AS PRACTICABLE AN EQUAL
NUMBER OF INHABITANTS,  ...  NO ONE DISTRICT ELECTING MORE THAN ONE
REPRESENTATIVE."  (FN45)  THIS PROVISION FOR EQUAL DISTRICTS WHICH THE
COURT EXACTLY DUPLICATES IN EFFECT, WAS CARRIED FORWARD IN EACH
SUBSEQUENT APPORTIONMENT STATUTE THROUGH 1911.  (FN46)  THERE WAS NO
REAPPORTIONMENT FOLLOWING THE 1920 CENSUS.  THE PROVISION FOR EQUALLY
POPULATED DISTRICTS WAS DROPPED IN 1929, (FN47) AND HAS NOT BEEN
REVIVED, ALTHOUGH THE 1929 PROVISIONS FOR APPORTIONMENT HAVE TWICE BEEN
AMENDED AND, IN 1941, WERE MADE GENERALLY APPLICABLE TO SUBSEQUENT
CENSUSES AND APPORTIONMENTS.  (FN48) 

THE LEGISLATIVE HISTORY OF THE 1929 ACT IS CAREFULLY REVIEWED IN WOOD
V. BROOM, 287 U.S. 1.  AS THERE STATED: 

"IT WAS MANIFESTLY THE INTENTION OF THE CONGRESS NOT TO RE-ENACT THE
PROVISION AS TO COMPACTNESS, CONTIGUITY, AND EQUALITY IN POPULATION
WITH RESPECT TO THE DISTRICTS TO BE CREATED PURSUANT TO THE
REAPPORTIONMENT UNDER THE ACT OF 1929. 

"THIS APPEARS FROM THE TERMS OF THE ACT, AND ITS LEGISLATIVE HISTORY
SHOWS THAT THE OMISSION WAS DELIBERATE.  THE QUESTION WAS UP, AND
CONSIDERED."  287 U.S., AT 7. 

ALTHOUGH THERE IS LITTLE DISCUSSION OF THE REASONS FOR OMITTING THE
REQUIREMENT OF EQUALLY POPULATED DISTRICTS, THE FACT THAT SUCH A
PROVISION WAS INCLUDED IN THE BILL AS IT WAS PRESENTED TO THE HOUSE,
(FN49) AND WAS DELETED BY THE HOUSE AFTER DEBATE AND NOTICE OF
INTENTION TO DO SO, (FN50) LEAVES NO DOUBT THAT THE OMISSION WAS
DELIBERATE.  THE LIKELY EXPLANATION FOR THE OMISSION IS SUGGESTED BY A
REMARK ON THE FLOOR OF THE HOUSE THAT "THE STATES OUGHT TO HAVE THEIR
OWN WAY OF MAKING UP THEIR APPORTIONMENT WHEN THEY KNOW THE NUMBER OF
CONGRESSMEN THEY ARE GOING TO HAVE."  (FN51) 

DEBATES OVER APPORTIONMENT IN SUBSEQUENT CONGRESSES ARE GENERALLY
UNHELPFUL TO EXPLAIN THE CONTINUED REJECTION OF SUCH A REQUIREMENT;
THERE ARE SOME INTIMATIONS THAT THE FEELING THAT DISTRICTING WAS A
MATTER EXCLUSIVELY FOR THE STATES PERSISTED.  (FN52)  BILLS WHICH WOULD
HAVE IMPOSED ON THE STATES A REQUIREMENT OF EQUALLY OR NEARLY EQUALLY
POPULATED DISTRICTS WERE REGULARLY INTRODUCED IN THE HOUSE.  (FN53)
NONE OF THEM BECAME LAW. 

FOR A PERIOD OF ABOUT 50 YEARS, THEREFORE, CONGRESS, BY REPEATED
LEGISLATIVE ACT, IMPOSED ON THE STATES THE REQUIREMENT THAT
CONGRESSIONAL DISTRICTS BE EQUAL IN POPULATION.  (THIS, OF COURSE, IS
THE VERY REQUIREMENT WHICH THE COURT NOW DECLARES TO HAVE BEEN
CONSTITUTIONALLY REQUIRED OF THE STATES ALL ALONG WITHOUT IMPLEMENTING
LEGISLATION.)  SUBSEQUENTLY, AFTER GIVING EXPRESS ATTENTION TO THE
PROBLEM, CONGRESS ELIMINATED THAT REQUIREMENT, WITH THE INTENTION OF
PERMITTING THE STATES TO FIND THEIR OWN SOLUTIONS.  SINCE THEN, DESPITE
REPEATED EFFORTS TO OBTAIN CONGRESSIONAL ACTION AGAIN, CONGRESS HAS
CONTINUED TO LEAVE THE PROBLEM AND ITS SOLUTION TO THE STATES.  IT
CANNOT BE CONTENDED THEREFORE, THAT THE COURT'S DECISION TODAY FILLS A
GAP LEFT BY THE CONGRESS.  ON THE CONTRARY, THE COURT SUBSTITUTES ITS
OWN JUDGMENT FOR THAT OF THE CONGRESS. 

                           V. 

THE EXTENT TO WHICH THE COURT DEPARTS FROM ACCEPTED PRINCIPLES OF
ADJUDICATION IS FURTHER EVIDENCED BY THE IRRELEVANCE TO TODAY'S ISSUE
OF THE CASES ON WHICH THE COURT RELIES. 

EX PARTE YARBROUGH, 110 U.S. 651, WAS A HABEAS CORPUS PROCEEDING, IN
WHICH THE COURT SUSTAINED THE VALIDITY OF A CONVICTION OF A GROUP OF
PERSONS CHARGED WITH VIOLATING FEDERAL STATUTES, (FN54) WHICH MADE IT A
CRIME TO CONSPIRE TO DEPRIVE A CITIZEN OF HIS FEDERAL RIGHTS, AND IN
PARTICULAR THE RIGHT TO VOTE.  THE ISSUE BEFORE THE COURT WAS WHETHER
OR NOT THE CONGRESS HAD POWER TO PASS LAWS PROTECTING THE RIGHT TO VOTE
FOR A MEMBER OF CONGRESS FROM FRAUD AND VIOLENCE; THE COURT RELIED
EXPRESSLY ON ART. I, SEC 4, IN SUSTAINING THIS POWER.  ID., AT 660. 
ONLY IN THIS CONTEXT, IN ORDER TO ESTABLISH THAT THE RIGHT TO VOTE IN A
CONGRESSIONAL ELECTION WAS A RIGHT PROTECTED BY FEDERAL LAW, DID THE
COURT HOLD THAT THE RIGHT WAS DEPENDENT ON THE CONSTITUTION AND NOT ON
THE LAW OF THE STATES.  INDEED, THE COURT RECOGNIZED THAT THE
CONSTITUTION "ADOPTS THE QUALIFICATION" FURNISHED BY THE STATES "AS THE
QUALIFICATION OF ITS OWN ELECTORS FOR MEMBERS OF CONGRESS."  ID., AT
663.  EACH OF THE OTHER THREE CASES CITED BY THE COURT, ANTE, P. 17,
SIMILARLY INVOLVED ACTS WHICH WERE PROSECUTED AS VIOLATIONS OF FEDERAL
STATUTES.  THE ACTS IN QUESTION WERE FILING FALSE ELECTION RETURNS,
UNITED STATES V. MOSLEY, 238 U.S. 383, ALTERATION OF BALLOTS AND FALSE
CERTIFICATION OF VOTES, UNITED STATES V. CLASSIC, 313 U.S. 299, AND
STUFFING THE BALLOT BOX, UNITED STATES V. SAYLOR, 322 U.S. 385.  NONE
OF THOSE CASES HAS THE SLIGHTEST BEARING ON THE PRESENT SITUATION. 
(FN55) 

THE COURT GIVES SCANT ATTENTION, AND THAT NOT ON THE MERITS, TO
COLEGROVE V. GREEN, 328 U.S. 549, WHICH IS DIRECTLY IN POINT; THE COURT
THERE AFFIRMED DISMISSAL OF A COMPLAINT ALLEGING THAT "BY REASON OF
SUBSEQUENT CHANGES IN POPULATION THE CONGRESSIONAL DISTRICTS FOR THE
ELECTION OF REPRESENTATIVES IN THE CONGRESS CREATED BY THE ILLINOIS
LAWS OF 1901  ...  LACKED COMPACTNESS OF TERRITORY AND APPROXIMATE
EQUALITY OF POPULATION."  ID., AT 550-551.  LEAVING TO ANOTHER DAY THE
QUESTION OF WHAT BAKER V. CARR, 369 U.S. 186, DID ACTUALLY DECIDE, IT
CAN HARDLY BE MAINTAINED ON THE AUTHORITY OF BAKER OR ANYTHING ELSE,
THAT THE COURT DOES NOT TODAY INVALIDATE MR. JUSTICE FRANKFURTER'S
EMINENTLY CORRECT STATEMENT IN COLEGROVE THAT "THE CONSTITUTION HAS
CONFERRED UPON CONGRESS EXCLUSIVE AUTHORITY TO SECURE FAIR
REPRESENTATION BY THE STATES IN THE POPULAR HOUSE  ... .  IF CONGRESS
FAILED IN EXERCISING ITS POWERS, WHEREBY STANDARDS OF FAIRNESS ARE
OFFENDED, THE REMEDY ULTIMATELY LIES WITH THE PEOPLE."  328 U.S., AT
554.  THE PROBLEM WAS DESCRIBED BY MR. JUSTICE FRANKFURTER AS "AN
ASPECT OF GOVERNMENT FROM WHICH THE JUDICIARY, IN VIEW OF WHAT IS
INVOLVED, HAS BEEN EXCLUDED BY THE CLEAR INTENTION OF THE CONSTITUTION
...  ."  IBID.  MR. JUSTICE FRANKFURTER DID NOT, OF COURSE, SPEAK FOR A
MAJORITY OF THE COURT IN COLEGROVE; BUT REFUSAL FOR THAT REASON TO GIVE
THE OPINION PRECEDENTIAL EFFECT DOES NOT JUSTIFY REFUSAL TO GIVE
APPROPRIATE ATTENTION TO THE VIEWS THERE EXPRESSED.  (FN56)

VI. 

TODAY'S DECISION HAS PORTENTS FOR OUR SOCIETY AND THE COURT ITSELF
WHICH SHOULD BE RECOGNIZED.  THIS IS NOT A CASE IN WHICH THE COURT
VINDICATES THE KIND OF INDIVIDUAL RIGHTS THAT ARE ASSURED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, WHOSE "VAGUE CONTOURS,"
ROCHIN V. CALIFORNIA, 342 U.S. 165, 170, OF COURSE LEAVE MUCH ROOM FOR
CONSTITUTIONAL DEVELOPMENTS NECESSITATED BY CHANGING CONDITIONS IN A
DYNAMIC SOCIETY.  NOR IS THIS A CASE IN WHICH AN EMERGENT SET OF FACTS
REQUIRES THE COURT TO FRAME NEW PRINCIPLES TO PROTECT RECOGNIZED
CONSTITUTIONAL RIGHTS.  THE CLAIM FOR JUDICIAL RELIEF IN THIS CASE
STRIKES AT ONE OF THE FUNDAMENTAL DOCTRINES OF OUR SYSTEM OF
GOVERNMENT, THE SEPARATION OF POWERS.  IN UPHOLDING THAT CLAIM, THE
COURT ATTEMPTS TO EFFECT REFORMS IN A FIELD WHICH THE CONSTITUTION, AS
PLAINLY AS CAN BE, HAS COMMITTED EXCLUSIVELY TO THE POLITICAL PROCESS. 

THIS COURT, NO LESS THAN ALL OTHER BRANCHES OF THE GOVERNMENT, IS
BOUND BY THE CONSTITUTION.  THE CONSTITUTION DOES NOT CONFER ON THE
COURT BLANKET AUTHORITY TO STEP INTO EVERY SITUATION WHERE THE
POLITICAL BRANCH MAY BE THOUGHT TO HAVE FALLEN SHORT.  THE STABILITY OF
THIS INSTITUTION ULTIMATELY DEPENDS NOT ONLY UPON ITS BEING ALERT TO
KEEP THE OTHER BRANCHES OF GOVERNMENT WITHIN CONSTITUTIONAL BOUNDS BUT
EQUALLY UPON RECOGNITION OF THE LIMITATIONS ON THE COURT'S OWN
FUNCTIONS IN THE CONSTITUTIONAL SYSTEM. 

WHAT IS DONE TODAY SAPS THE POLITICAL PROCESS.  THE PROMISE OF
JUDICIAL INTERVENTION IN MATTERS OF THIS SORT CANNOT BUT ENCOURAGE
POPULAR INERTIA IN EFFORTS FOR POLITICAL REFORM THROUGH THE POLITICAL
PROCESS, WITH THE INEVITABLE RESULT THAT THE PROCESS IS ITSELF
WEAKENED.  BY YIELDING TO THE DEMAND FOR A JUDICIAL REMEDY IN THIS
INSTANCE, THE COURT IN MY VIEW DOES A DISSERVICE BOTH TO ITSELF AND TO
THE BROADER VALUES OF OUR SYSTEM OF GOVERNMENT. 

BELIEVING THAT THE COMPLAINT FAILS TO DISCLOSE A CONSTITUTIONAL
CLAIM, I WOULD AFFIRM THE JUDGMENT BELOW DISMISSING THE COMPLAINT. 

          APPENDIX TO OPINION OF MR. JUSTICE HARLAN.*  (TABLE
OMITTED). 

*THE POPULATIONS OF THE DISTRICTS ARE BASED ON THE 1960 CENSUS.  THE
DISTRICTS ARE THOSE USED IN THE ELECTION OF THE CURRENT 88TH CONGRESS. 
THE POPULATIONS OF THE DISTRICTS ARE AVAILABLE IN THE BIOGRAPHICAL

FN1  REPRESENTATIVES WERE ELECTED AT LARGE IN ALABAMA (8), ALASKA
(1), DELAWARE (1), HAWAII (2), NEVADA (1), NEW MEXICO (2), VERMONT (1),
AND WYOMING (1).  IN ADDITION, CONNECTICUT, MARYLAND, MICHIGAN, OHIO,
AND TEXAS EACH ELECTED ONE OF THEIR REPRESENTATIVES AT LARGE. 

FN2  THE FIVE STATES ARE IOWA, MAINE, NEW HAMPSHIRE, NORTH DAKOTA,
AND RHODE ISLAND.  TOGETHER, THEY ELECT 15 REPRESENTATIVES. 

THE POPULATIONS OF THE LARGEST AND SMALLEST DISTRICTS IN EACH STATE
AND THE DIFFERENCE BETWEEN THEM ARE CONTAINED IN AN APPENDIX TO THIS
OPINION. 

FN3  THE ONLY STATE IN WHICH THE AVERAGE POPULATION PER DISTRICT IS
GREATER THAN 500,000 IS CONNECTICUT, WHERE THE AVERAGE POPULATION PER
DISTRICT IS 507,047 (ONE REPRESENTATIVE BEING ELECTED AT LARGE).  THE
DIFFERENCE BETWEEN THE LARGEST AND SMALLEST DISTRICTS IN CONNECTICUT
IS, HOWEVER, 370,613. 

FN4  THE COURT'S "AS NEARLY AS IS PRACTICABLE" FORMULA SWEEPS A HOST
OF QUESTIONS UNDER THE RUG.  HOW GREAT A DIFFERENCE BETWEEN THE
POPULATIONS OF VARIOUS DISTRICTS WITHIN A STATE IS TOLERABLE?  IS THE
STANDARD AN ABSOLUTE OR RELATIVE ONE, AND IF THE LATTER TO WHAT IS THE
DIFFERENCE IN POPULATION TO BE RELATED?  DOES THE NUMBER OF DISTRICTS
WITHIN THE STATE HAVE ANY RELEVANCE?  IS THE NUMBER OF VOTERS OR THE
NUMBER OF INHABITANTS CONTROLLING?  IS THE RELEVANT STATISTIC THE
GREATEST DISPARITY BETWEEN ANY TWO DISTRICTS IN THE STATE OR THE
AVERAGE DEPARTURE FROM THE AVERAGE POPULATION PER DISTRICT, OR A LITTLE
OF BOTH?  MAY THE STATE CONSIDER FACTORS SUCH AS AREA OR NATURAL
BOUNDARIES (RIVERS, MOUNTAIN RANGES) WHICH ARE PLAINLY RELEVANT TO THE
PRACTICABILITY OF EFFECTIVE REPRESENTATION? 

THERE IS AN OBVIOUS LACK OF CRITERIA FOR ANSWERING QUESTIONS SUCH AS
THESE, WHICH POINTS UP THE IMPROPRIETY OF THE COURT'S WHOLEHEARTED BUT
HEAVY-FOOTED ENTRANCE INTO THE POLITICAL ARENA. 

FN5  THE 37 "CONSTITUTIONAL" REPRESENTATIVES ARE THOSE COMING FROM
THE EIGHT STATES WHICH ELECTED THEIR REPRESENTATIVES AT LARGE (PLUS ONE
EACH ELECTED AT LARGE IN CONNECTICUT, MARYLAND, MICHIGAN, OHIO, AND
TEXAS) AND THOSE COMING FROM STATES IN WHICH THE DIFFERENCE BETWEEN THE
POPULATIONS OF THE LARGEST AND SMALLEST DISTRICTS WAS LESS THAN
100,000.  SEE NOTES 1 AND 2, SUPRA.  SINCE THE DIFFERENCE BETWEEN THE
LARGEST AND SMALLEST DISTRICTS IN IOWA IS 89,250, AND THE AVERAGE
POPULATION PER DISTRICT IN IOWA IS ONLY 393,934, IOWA'S 7
REPRESENTATIVES MIGHT WELL LOSE THEIR SEATS AS WELL.  THIS WOULD LEAVE
A HOUSE OF REPRESENTATIVES COMPOSED OF THE 22 REPRESENTATIVES ELECTED
AT LARGE PLUS EIGHT ELECTED IN CONGRESSIONAL DISTRICTS. 

THESE CONCLUSIONS PRESUME THAT ALL THE REPRESENTATIVES FROM A STATE
IN WHICH ANY PART OF THE CONGRESSIONAL DISTRICTING IS FOUND INVALID
WOULD BE AFFECTED.  SOME OF THEM, OF COURSE, WOULD ORDINARILY COME FROM
DISTRICTS THE POPULATIONS OF WHICH WERE ABOUT THAT WHICH WOULD RESULT
FROM AN APPORTIONMENT BASED SOLELY ON POPULATION.  BUT A COURT CANNOT
ERASE ONLY THE DISTRICTS WHICH DO NOT CONFORM TO THE STANDARD ANNOUNCED
TODAY, SINCE INVALIDATION OF THOSE DISTRICTS WOULD REQUIRE THAT THE
LINES OF ALL THE DISTRICTS WITHIN THE STATE BE REDRAWN.  IN THE ABSENCE
OF A REAPPORTIONMENT, ALL THE REPRESENTATIVES FROM A STATE FOUND TO
HAVE VIOLATED THE STANDARD WOULD PRESUMABLY HAVE TO BE ELECTED AT
LARGE. 

FN6  SINCE I BELIEVE THAT THE CONSTITUTION EXPRESSLY PROVIDES THAT
STATE LEGISLATURES AND THE CONGRESS SHALL HAVE EXCLUSIVE JURISDICTION
OVER PROBLEMS OF CONGRESSIONAL APPORTIONMENT OF THE KIND INVOLVED IN
THIS CASE, THERE IS NO OCCASION FOR ME TO CONSIDER WHETHER, IN THE
ABSENCE OF SUCH PROVISION, OTHER PROVISIONS OF THE CONSTITUTION, RELIED
ON BY THE APPELLANTS, WOULD CONFER ON THEM THE RIGHTS WHICH THEY
ASSERT. 

FN7  ALTHOUGH IT WAS HELD IN EX PARTE YARBROUGH, 110 U.S. 651, AND
SUBSEQUENT CASES, THAT THE RIGHT TO VOTE FOR A MEMBER OF CONGRESS
DEPENDS ON THE CONSTITUTION, THE OPINION NOTED THAT THE LEGISLATURES OF
THE STATES PRESCRIBE THE QUALIFICATIONS FOR ELECTORS OF THE
LEGISLATURES AND THEREBY FOR ELECTORS OF THE HOUSE OF REPRESENTATIVES. 
110 U.S., AT 663.  SEE ANTE, P. 17, AND INFRA, PP. 45-46. 

THE STATES WHICH RATIFIED THE CONSTITUTION EXERCISED THEIR POWER.  A
PROPERTY OR TAXPAYING QUALIFICATION WAS IN EFFECT ALMOST EVERYWHERE. 
SEE, E.G., THE NEW YORK CONSTITUTION OF 1777, ART. VII, WHICH
RESTRICTED THE VOTE TO FREEHOLDERS "POSSESSING A FREEHOLD OF THE VALUE
OF TWENTY POUNDS, ...  OR WHO HAVE RENTED A TENEMENT  ...  OF THE
YEARLY VALUE OF FORTY SHILLINGS, AND BEEN RATED AND ACTUALLY PAID TAXES
TO THIS STATE."  THE CONSTITUTIONAL AND STATUTORY QUALIFICATIONS FOR
ELECTORS IN THE VARIOUS STATES ARE SET OUT IN TABULAR FORM IN 1 THORPE,
A CONSTITUTIONAL HISTORY OF THE AMERICAN PEOPLE 1776-1850 (1898), 93
96.  THE PROGRESSIVE ELIMINATION OF THE PROPERTY QUALIFICATION IS
DESCRIBED IN SAIT, AMERICAN PARTIES AND ELECTIONS (PENNIMAN ED., 1952),
16-17.  AT THE TIME OF THE REVOLUTION, "NO SERIOUS INROADS HAD YET BEEN
MADE UPON THE PRIVILEGES OF PROPERTY, WHICH, INDEED, MAINTAINED IN MOST
STATES A SECOND LINE OF DEFENSE IN THE FORM OF HIGH PERSONAL-PROPERTY
QUALIFICATIONS REQUIRED FOR MEMBERSHIP IN THE LEGISLATURE."  ID., AT
16.    WOMEN WERE NOT ALLOWED TO VOTE.  THORPE, OP. CIT., SUPRA, 93
96.  SEE GENERALLY SAIT, OP. CIT., SUPRA, 49-54.  NEW JERSEY APPARENTLY
ALLOWED WOMEN, AS "INHABITANTS," TO VOTE UNTIL 1807.  SEE THORPE, OP.
CIT., SUPRA, 93.  COMPARE N.J. CONST., 1776, ART. XIII, WITH N.J.
CONST., 1844, ART. II, PARA 1.    FN8  EVEN THAT IS NOT STRICTLY TRUE
UNLESS THE WORD "SOLELY" IS DELETED.  THE "THREE-FIFTHS COMPROMISE" WAS
A DEPARTURE FROM THE PRINCIPLE OF REPRESENTATION ACCORDING TO THE
NUMBER OF INHABITANTS OF A STATE.  CF. THE FEDERALIST, NO. 54,
DISCUSSED INFRA, PP. 39-40.  A MORE OBVIOUS DEPARTURE WAS THE PROVISION
THAT EACH STATE SHALL HAVE A REPRESENTATIVE REGARDLESS OF ITS
POPULATION.  SEE INFRA, PP. 28-29. 

FN9  THE FACT THAT THE DELEGATES WERE ABLE TO AGREE ON A SENATE
COMPOSED ENTIRELY WITHOUT REGARD TO POPULATION AND ON THE DEPARTURES
FROM A POPULATION-BASED HOUSE, MENTIONED IN NOTE 8, SUPRA, INDICATES
THAT THEY RECOGNIZED THE POSSIBILITY THAT ALTERNATIVE PRINCIPLES
COMBINED WITH POLITICAL REALITY MIGHT DICTATE CONCLUSIONS INCONSISTENT
WITH AN ABSTRACT PRINCIPLE OF ABSOLUTE NUMERICAL EQUALITY. 

ON THE APPORTIONMENT OF THE STATE LEGISLATURES AT THE TIME OF THE
CONSTITUTIONAL CONVENTION, SEE LUCE, LEGISLATIVE PRINCIPLES (1930), 331
364; HACKER, CONGRESSIONAL DISTRICTING (1963), 5. 

FN10  IT IS SURELY BEYOND DEBATE THAT THE CONSTITUTION DID NOT
REQUIRE THE SLAVE STATES TO APPORTION THEIR REPRESENTATIVES ACCORDING
TO THE DISPERSION OF SLAVES WITHIN THEIR BORDERS.  THE ABOVE
IMPLICATIONS OF THE THREE-FIFTHS COMPROMISE WERE RECOGNIZED BY
MADISON.  SEE THE FEDERALIST, NO. 54, DISCUSSED INFRA, PP. 39-40. 

LUCE POINTS TO THE "QUITE ARBITRARY GRANT OF REPRESENTATION
PROPORTIONATE TO THREE FIFTHS OF THE NUMBER OF SLAVES" AS EVIDENCE THAT
EVEN IN THE HOUSE "THE REPRESENTATION OF MEN AS MEN" WAS NOT INTENDED. 
HE STATES:  "THERE CAN BE NO SHADOW OF QUESTION THAT POPULATIONS WERE
ACCEPTED AS A MEASURE OF MATERIAL INTERESTS - LANDED, AGRICULTURAL,
INDUSTRIAL, COMMERCIAL, IN SHORT, PROPERTY."  LEGISLATIVE PRINCIPLES
(1930), 356-357. 

FN11  U.S. BUREAU OF THE CENSUS, CENSUS OF POPULATION:  1960
(HEREAFTER, CENSUS), XIV.  THE FIGURE IS OBTAINED BY DIVIDING THE
POPULATION BASE (WHICH EXCLUDES THE POPULATION OF THE DISTRICT OF
COLUMBIA, THE POPULATION OF THE TERRITORIES, AND THE NUMBER OF INDIANS
NOT TAXED) BY THE NUMBER OF REPRESENTATIVES.  IN 1960, THE POPULATION
BASE WAS 178,559,217, AND THE NUMBER OF REPRESENTATIVES WAS 435. 

FN12  CENSUS, 1-16. 

FN13  SECTION 5 OF ARTICLE I, WHICH PROVIDES THAT "EACH HOUSE SHALL
BE THE JUDGE OF THE ELECTIONS, RETURNS AND QUALIFICATIONS OF ITS OWN
MEMBERS," ALSO POINTS AWAY FROM THE COURT'S CONCLUSION.  THIS PROVISION
REINFORCES THE EVIDENT CONSTITUTIONAL SCHEME OF LEAVING TO THE CONGRESS
THE PROTECTION OF FEDERAL INTERESTS INVOLVED IN THE SELECTION OF
MEMBERS OF THE CONGRESS. 

FN14  I FARRAND, RECORDS OF THE FEDERAL CONVENTION (1911)(HEREAFTER
FARRAND), 48, 86-87, 134-136, 288-289, 299, 533, 534; II FARRAND 202. 

FN15  "THE ASSEMBLAGE AT THE PHILADELPHIA CONVENTION WAS BY NO MEANS
COMMITTED TO POPULAR GOVERNMENT, AND FEW OF THE DELEGATES HAD SYMPATHY
FOR THE HABITS OR INSTITUTIONS OF DEMOCRACY.  INDEED, MOST OF THEM
INTERPRETED DEMOCRACY AS MOB RULE AND ASSUMED THAT EQUALITY OF
REPRESENTATION WOULD PERMIT THE SPOKESMEN FOR THE COMMON MAN TO OUTVOTE
THE BELEAGUERED DEPUTIES OF THE UNCOMMON MAN."  HACKER, CONGRESSIONAL
DISTRICTING (1963), 7-8.  SEE LUCE, LEGISLATIVE PRINCIPLES (1930), 356
357.  WITH RESPECT TO APPORTIONMENT OF THE HOUSE, LUCE STATES:
"PROPERTY WAS THE BASIS, NOT HUMANITY."  ID., AT 357. 

CONTRARY TO THE COURT'S STATEMENT, ANTE, P. 18, NO READER OF THE
FEDERALIST "COULD HAVE FAIRLY TAKEN  ...  IT TO MEAN" THAT THE
CONSTITUTIONAL CONVENTION HAD ADOPTED A PRINCIPLE OF "ONE PERSON, ONE
VOTE" IN CONTRAVENTION OF THE QUALIFICATIONS FOR ELECTORS WHICH THE
STATES IMPOSED.  IN NO. 54, MADISON SAID:  "IT IS A FUNDAMENTAL
PRINCIPLE OF THE PROPOSED CONSTITUTION, THAT AS THE AGGREGATE NUMBER OF
REPRESENTATIVES ALLOTTED TO THE SEVERAL STATES, IS TO BE DETERMINED BY
A FOEDERAL RULE FOUNDED ON THE AGGREGATE NUMBER OF INHABITANTS, SO THE
RIGHT OF CHOOSING THIS ALLOTTED NUMBER IN EACH STATE IS TO BE EXERCISED
BY SUCH PART OF THE INHABITANTS, AS THE STATE ITSELF MAY DESIGNATE ...
.  IN EVERY STATE, A CERTAIN PROPORTION OF INHABITANTS ARE DEPRIVED OF
THIS RIGHT BY THE CONSTITUTION OF THE STATE, WHO WILL BE INCLUDED IN
THE CENSUS BY WHICH THE FOEDERAL CONSTITUTION APPORTIONS THE
REPRESENTATIVES."  (COOKE ED. 1961) 369.  THE PASSAGE FROM WHICH THE
COURT QUOTES, ANTE, P. 18, CONCLUDES WITH THE FOLLOWING, OVERLOOKED BY
THE COURT:  "THEY (THE ELECTORS) ARE TO BE THE SAME WHO EXERCISE THE
RIGHT IN EVERY STATE OF ELECTING THE CORRESPONDENT BRANCH OF THE
LEGISLATURE OF THE STATE."  ID., AT 385. 

FN16  REFERENCES TO OLD SARUM (ANTE, P. 15), FOR EXAMPLE, OCCURRED
DURING THE DEBATE ON THE METHOD OF APPORTIONMENT OF REPRESENTATIVES
AMONG THE STATES.  I FARRAND 449-450, 457. 

FN17  II FARRAND 240-241. 

FN18  IBID. 

FN19  SEE THE MATERIALS CITED IN NOTES 41-42, 44-45 OF THE COURT'S
OPINION, ANTE, P. 16.  AMES' REMARK AT THE MASSACHUSETTS CONVENTION IS
TYPICAL:  "THE REPRESENTATIVES ARE TO REPRESENT THE PEOPLE."  II
ELLIOT'S DEBATES ON THE FEDERAL CONSTITUTION (2D ED. 1836) (HEREAFTER
ELLIOT'S DEBATES), 11.  IN THE SOUTH CAROLINA CONVENTION, PINCKNEY
STATED THAT THE HOUSE WOULD "BE SO CHOSEN AS TO REPRESENT IN DUE
PROPORTION THE PEOPLE OF THE UNION  ...  ."  IV ELLIOT'S DEBATES 257. 
BUT HE HAD IN MIND ONLY THAT OTHER CLEAR PROVISION OF THE CONSTITUTION
THAT REPRESENTATION WOULD BE APPORTIONED AMONG THE STATES ACCORDING TO
POPULATION.  NONE OF HIS REMARKS BEARS ON APPORTIONMENT WITHIN THE
STATES.  ID., AT 256-257. 

FN20  II ELLIOT'S DEBATES 49. 

FN21  IBID. 

FN22  ID., AT 50-51. 

FN23  ID., AT 51. 

FN24  ID., AT 26-27. 

FN25  ID., AT 325. 

FN26  ID., AT 325-326. 

FN27  ID., AT 327. 

FN28  IBID. 

FN29  ID., AT 328. 

FN30  ID., AT 329. 

FN31  III ELLIOT'S DEBATES 367. 

FN32  IV ELLIOT'S DEBATES 71. 

FN33  IBID. 

FN34  IBID. 

FN35  II ELLIOT'S DEBATES 440-441. 

FN36  ID., AT 441. 

FN37  THE FEDERALIST, NO. 57 (COOKE ED. 1961), 389. 

FN38  ID., AT 368. 

FN39  ID., AT 369. 

FN40  ID., AT 398. 

FN41  ID., AT 398-399. 

FN42  ACT OF JUNE 25, 1842, SEC 2, 5 STAT. 491. 

FN43  ACT OF MAY 23, 1850, 9 STAT. 428. 

FN44  ACT OF JULY 14, 1862, 12 STAT. 572. 

FN45  ACT OF FEB. 2, 1872, SEC 2, 17 STAT. 28. 

FN46  ACT OF FEB. 25, 1882, SEC 3, 22 STAT. 5, 6; ACT OF FEB. 7,
1891, SEC 3, 26 STAT.  735; ACT OF JAN. 16, 1901, SEC 3, 31 STAT. 733,
734; ACT OF AUG. 8, 1911, SEC 3, 37 STAT. 13, 14. 

FN47  ACT OF JUNE 18, 1929, 46 STAT. 21. 

FN48  ACT OF APR. 25, 1940, 54 STAT. 162; ACT OF NOV. 15, 1941, 55
STAT. 761. 

FN49  H.R. 11725, 70TH CONG., 1ST SESS., INTRODUCED ON MAR. 3, 1928,
69 CONG. REC. 4054. 

FN50  70 CONG. REC. 1499, 1584, 1602, 1604. 

FN51  70 CONG. REC. 1499 (REMARKS OF MR. DICKINSON).  THE
CONGRESSIONAL RECORD REPORTS THAT THIS STATEMENT WAS FOLLOWED BY
APPLAUSE.  AT ANOTHER POINT IN THE DEBATES, REPRESENTATIVE LOZIER
STATED THAT CONGRESS LACKED "POWER TO DETERMINE IN WHAT MANNER THE
SEVERAL STATES EXERCISE THEIR SOVEREIGN RIGHTS IN SELECTING THEIR
REPRESENTATIVES IN CONGRESS  ...  ."  70 CONG. REC. 1496.  SEE ALSO THE
REMARKS OF MR. GRAHAM.  IBID. 

FN52  SEE, E.G., 86 CONG. REC. 4368 (REMARKS OF MR. RANKIN), 4369
(REMARKS OF MR. MCLEOD), 4371 (REMARKS OF MR. MCLEOD); 87 CONG. REC.
1081 (REMARKS OF MR. MOSER). 

FN53  H.R. 4820, 76TH CONG., 1ST SESS.; H.R. 5099, 76TH CONG., 1ST
SESS.; H.R. 2648, 82D CONG., 1ST SESS.; H.R. 6428, 83D CONG., 1ST
SESS.; H.R. 111, 85TH CONG., 1ST SESS.; H.R. 814, 85TH CONG., 1ST
SESS.; H.R. 8266, 86TH CONG., 1ST SESS.; H.R. 73, 86TH CONG., 1ST
SESS.; H.R. 575, 86TH CONG., 1ST SESS.; H.R. 841; 87TH CONG., 1ST
SESS. 

TYPICAL OF RECENT PROPOSED LEGISLATION IS H.R. 841, 87TH CONG., 1ST
SESS., WHICH AMENDS 2 U.S.C. SEC 2A TO PROVIDE: 

"(C)  EACH STATE ENTITLED TO MORE THAN ONE REPRESENTATIVE IN CONGRESS
UNDER THE APPORTIONMENT PROVIDED IN SUBSECTION (A) OF THIS SECTION,
SHALL ESTABLISH FOR EACH REPRESENTATIVE A DISTRICT COMPOSED OF
CONTIGUOUS AND COMPACT TERRITORY, AND THE NUMBER OF INHABITANTS
CONTAINED WITHIN ANY DISTRICT SO ESTABLISHED SHALL NOT VARY MORE THAN
10 PER CENTUM FROM THE NUMBER OBTAINED BY DIVIDING THE TOTAL POPULATION
OF SUCH STATES, AS ESTABLISHED IN THE LAST DECENNIAL CENSUS, BY THE
NUMBER OF REPRESENTATIVES APPORTIONED TO SUCH STATE UNDER THE
PROVISIONS OF SUBSECTION (A) OF THIS SECTION. 

"(D)  ANY REPRESENTATIVE ELECTED TO THE CONGRESS FROM A DISTRICT
WHICH DOES NOT CONFORM TO THE REQUIREMENTS SET FORTH IN SUBSECTION (C)
OF THIS SECTION SHALL BE DENIED HIS SEAT IN THE HOUSE OF
REPRESENTATIVES AND THE CLERK OF THE HOUSE SHALL REFUSE HIS
CREDENTIALS." 

SIMILAR BILLS INTRODUCED IN THE CURRENT CONGRESS ARE H.R. 1128, H.R.
2836, H.R. 4340, AND H.R. 7343, 88TH CONG., 1ST SESS. 

FN54  R.S. SEC 5508; R.S. SEC 5520. 

FN55  SMILEY V. HOLM, 285 U.S. 355, AND ITS TWO COMPANION CASES,
KOENIG V. FLYNN, 285 U.S. 375; CARROLL V. BECKER, 285 U.S. 380, ON
WHICH MY BROTHER CLARK RELIES IN HIS SEPARATE OPINION, ANTE, PP. 18-19,
ARE EQUALLY IRRELEVANT.  SMILEY V. HOLM PRESENTED TWO QUESTIONS: THE
FIRST, ANSWERED IN THE NEGATIVE, WAS WHETHER THE PROVISION IN ART. I,
SEC 4, WHICH EMPOWERED THE "LEGISLATURE" OF A STATE TO PRESCRIBE THE
REGULATIONS FOR CONGRESSIONAL ELECTIONS MEANT THAT A STATE COULD NOT BY
LAW PROVIDE FOR A GOVERNOR'S VETO OVER SUCH REGULATIONS AS HAD BEEN
PRESCRIBED BY THE LEGISLATURE.  THE SECOND QUESTION, WHICH CONCERNED
TWO CONGRESSIONAL APPORTIONMENT MEASURES, WAS WHETHER THE ACT OF JUNE
18, 1929, 46 STAT.  21, HAD REPEALED CERTAIN PROVISIONS OF THE ACT OF
AUG. 8, 1911, 37 STAT. 13.  IN ANSWERING THIS QUESTION, THE COURT WAS
CONCERNED TO CARRY OUT THE INTENTION OF CONGRESS IN ENACTING THE 1929
ACT.  SEE ID., AT 374.  QUITE OBVIOUSLY, THEREFORE, SMILEY V. HOLM DOES
NOT STAND FOR THE PROPOSITION WHICH MY BROTHER CLARK DERIVES FROM IT.
THERE WAS NOT THE SLIGHTEST IMTIMATION IN THAT CASE THAT CONGRESS'
POWER TO PRESCRIBE REGULATIONS FOR ELECTIONS WAS SUBJECT TO JUDICIAL
SCRUTINY, ANTE, P. 18, SUCH THAT THIS COURT COULD ITSELF PRESCRIBE
REGULATIONS FOR CONGRESSIONAL ELECTIONS IN DISREGARD AND EVEN IN
CONTRADICTION OF CONGRESSIONAL PURPOSE.  THE COMPANION CASES TO SMILEY
V. HOLM PRESENTED NO DIFFERENT ISSUES AND WERE DECIDED WHOLLY ON THE
BASIS OF THE DECISION IN THAT CASE. 

FN56  THE COURT RELIES IN PART ON BAKER V. CARR, SUPRA, TO IMMUNIZE
ITS PRESENT DECISION FROM THE FORCE OF COLEGROVE.  BUT NOTHING IN BAKER
IS CONTRADICTORY TO THE VIEW THAT, POLITICAL QUESTION AND OTHER
OBJECTIONS TO "JUSTICIABILITY" ASIDE, THE CONSTITUTION VESTS EXCLUSIVE
AUTHORITY TO DEAL WITH THE PROBLEM OF THIS CASE IN THE STATE
LEGISLATURES AND THE CONGRESS. 

MR. JUSTICE STEWART. 

I THINK IT IS ESTABLISHED THAT "THIS COURT HAS POWER TO AFFORD RELIEF
IN A CASE OF THIS TYPE AS AGAINST THE OBJECTION THAT THE ISSUES ARE NOT
JUSTICIABLE,"* AND I CANNOT SUBSCRIBE TO ANY POSSIBLE IMPLICATION TO
THE CONTRARY WHICH MAY LURK IN MR. JUSTICE HARLAN'S DISSENTING
OPINION.  WITH THIS SINGLE QUALIFICATION I JOIN THE DISSENT BECAUSE I
THINK MR. JUSTICE HARLAN HAS UNANSWERABLY DEMONSTRATED THAT ART. I, SEC
2, OF THE CONSTITUTION GIVES NO MANDATE TO THIS COURT OR TO ANY COURT
TO ORDAIN THAT CONGRESSIONAL DISTRICTS WITHIN EACH STATE MUST BE EQUAL
IN POPULATION. 

*THE QUOTATION IS FROM MR. JUSTICE RUTLEDGE'S CONCURRING OPINION IN
COLEGROVE V. GREEN, 328 U.S., AT 565. 
..END :





WRIGHT V. ROCKEFELLER 376 U.S. 52 


NO. 96.  ARGUED NOVEMBER 19, 1963.  - DECIDED FEBRUARY 17, 1964.  - 211
F. SUPP. 460, AFFIRMED. 


APPELLANTS, VOTERS IN THE FOUR CONGRESSIONAL DISTRICTS IN MANHATTAN
ISLAND, BROUGHT SUIT BEFORE A THREE-JUDGE DISTRICT COURT CHALLENGING
THE CONSTITUTIONALITY OF PART OF NEW YORK'S 1961 CONGRESSIONAL
APPORTIONMENT STATUTE.  THEY CHARGED THAT, IN VIOLATION OF THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT AND IN
VIOLATION OF THE FIFTEENTH AMENDMENT, IRREGULARLY SHAPED DISTRICTS WERE
DRAWN WITH RACIAL CONSIDERATIONS IN MIND, RESULTING IN ONE DISTRICT
WHICH EXCLUDED NON-WHITE CITIZENS AND THOSE OF PUERTO RICAN ORIGIN, WHO
WERE LARGELY CONCENTRATED IN ONE OF THE OTHER DISTRICTS.  HELD:
FINDING OF DISTRICT COURT THAT APPELLANTS HAD FAILED TO SHOW THAT THE
CHALLENGED PART OF THE APPORTIONMENT ACT WAS A "STATE CONTRIVANCE" TO
SEGREGATE ON THE BASIS OF RACE OR PLACE OF ORIGIN, THAT THE NEW YORK
LEGISLATURE WAS MOTIVATED BY RACIAL CONSIDERATIONS OR THAT, IN FACT, IT
DREW THE DISTRICTS ON RACIAL LINES WAS NOT CLEARLY ERRONEOUS.  PP. 53
58. 

(A)  WHERE THE EVIDENCE WAS "EQUALLY, OR MORE, PERSUASIVE" THAT
RACIAL CONSIDERATIONS HAD NOT MOTIVATED THE STATE LEGISLATURE THAN THAT
SUCH CONSIDERATIONS HAD MOTIVATED THE LEGISLATURE, THE FINDINGS OF THE
DISTRICT COURT THAT THE APPELLANTS HAD FAILED TO PROVE THEIR CASE WILL
NOT BE DISTURBED.  PP. 56-57. 

(B)  THE HIGH CONCENTRATION IN ONE AREA OF COLORED AND PUERTO RICAN
VOTERS MADE IT DIFFICULT TO DRAW DISTRICTS TO APPROXIMATE AN EQUAL
DIVISION OF THESE GROUPS AMONG THE DISTRICTS, EVEN ASSUMING THAT TO BE
PERMISSIBLE.  P. 57. 

WRIGHT ET AL. V. ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, CITIZENS AND REGISTERED VOTERS OF NEW YORK'S SEVENTEENTH,
EIGHTEENTH, NINETEENTH, AND TWENTIETH CONGRESSIONAL DISTRICTS, ALL IN
NEW YORK COUNTY (THE ISLAND OF MANHATTAN), BROUGHT THIS ACTION IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
CHALLENGING THE CONSTITUTIONALITY OF THAT PART OF CHAPTER 980 OF NEW
YORK'S 1961 CONGRESSIONAL APPORTIONMENT STATUTE WHICH DEFINED THESE
FOUR DISTRICTS.  (FN1)  THE GOVERNOR AND SEVERAL OTHER NEW YORK STATE
OFFICIALS WERE NAMED AS DEFENDANTS.  CONGRESSMAN ADAM CLAYTON POWELL,
WHO REPRESENTS THE EIGHTEENTH CONGRESSIONAL DISTRICT, AND SEVERAL OTHER
NEW YORK COUNTY POLITICAL LEADERS WERE PERMITTED TO INTERVENE AS
DEFENDANTS SUPPORTING THE CONSTITUTIONALITY OF THE APPORTIONMENT ACT. 
APPELLANTS CHARGED THAT THE PART OF THE NEW YORK ACT IN QUESTION
DEPRIVED THEM OF RIGHTS GUARANTEED BY THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT AND BY THE FIFTEENTH
AMENDMENT, WHICH PROVIDES THAT "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."  THEIR COMPLAINT ALLEGED THAT: 

"CHAPTER 980 ESTABLISHES IRRATIONAL, DISCRIMINATORY AND UNEQUAL
CONGRESSIONAL DISTRICTS IN THE COUNTY OF NEW YORK AND SEGREGATES
ELIGIBLE VOTERS BY RACE AND PLACE OF ORIGIN.  IT IS CONTRIVED TO CREATE
ONE DISTRICT, THE 17TH CONGRESSIONAL DISTRICT, WHICH EXCLUDES NON-WHITE
CITIZENS AND CITIZENS OF PUERTO RICAN ORIGIN AND WHICH IS OVER
REPRESENTED IN COMPARISON TO THE OTHER THREE DISTRICTS IN THE COUNTY OF
NEW YORK.  THE 18TH, 19TH AND 20TH CONGRESSIONAL DISTRICTS HAVE BEEN
DRAWN SO AS TO INCLUDE THE OVERWHELMING NUMBER OF NON-WHITE CITIZENS
AND CITIZENS OF PUERTO RICAN ORIGIN IN THE COUNTY OF NEW YORK AND TO BE
UNDER-REPRESENTED IN RELATION TO THE 17TH CONGRESSIONAL DISTRICT." 
(FN2) 

THE CASE WAS HEARD BY A DISTRICT COURT OF THREE JUDGES.  DURING THESE
HEARINGS, COUNSEL FOR APPELLANTS MADE IT CLEAR THAT THEIR CASE DID NOT
DEPEND ON "UNDER-REPRESENTATION BECAUSE OF THE VARIATION IN THE SIZE OF
THE CONGRESSIONAL DISTRICTS"; IT WAS RATHER, HE SAID, "A CASE OF
GHETTOIZING THE ISLAND OF MANHATTAN" SO AS "TO CREATE A WHITE
CONGRESSIONAL DISTRICT AND A NON-WHITE CONGRESSIONAL DISTRICT."  "I
THINK," COUNSEL SAID, "THE ONLY PROVINCE OF THE COURT IN THIS AREA IS
TO DETERMINE WHETHER OR NOT THESE DISTRICTS HAVE BEEN CREATED WITH
RACIAL CONSIDERATIONS IN MIND, AND, IF THEY HAVE, OR IF THE RESULTS OF
THIS DISTRICTING, THE EFFECT OF THE STATUTE IS TO CREATE RACIALLY
SEGREGATED AREAS, WE MAINTAIN THAT IT VIOLATES THE FOURTEENTH AND
FIFTEENTH AMENDMENTS."  APPELLANTS OFFERED MAPS, STATISTICS, AND SOME
ORAL EVIDENCE DESIGNED TO PROVE THEIR CHARGE THAT IT WAS IMPOSSIBLE TO
HAVE DISTRICTS SUCH AS THESE WERE UNLESS THEY "WERE DRAWN WITH REGARD
TO RACE."  THE STATISTICS SHOWED THAT THE EIGHTEENTH DISTRICT CONTAINED
86.3% NEGROES AND PUERTO RICANS; THE NINETEENTH, 28.5%; THE TWENTIETH,
27.5%; AND THE SEVENTEENTH, 5.1%.  THE EVIDENCE ALSO SHOWED
IRREGULARITIES IN THE BOUNDARIES OF THE DISTRICTS AND SOME VARIATION IN
POPULATION AMONG THE FOUR.  (FN3)  APPELLEES PRESENTED NO ORAL
TESTIMONY BUT DID OFFER HISTORICAL MAPS, A TABLE FROM THE BUREAU OF THE
CENSUS, AND A MESSAGE FROM THE PRESIDENT TO THE CONGRESS ON THE SUBJECT
OF CONGRESSIONAL APPORTIONMENT. 

A MAJORITY OF THE DISTRICT COURT FOUND THAT APPELLANTS HAD NOT MADE
OUT THEIR CASE ON THE CRUCIAL FACTUAL ISSUES.  (FN4)  JUDGE MOORE
BROADLY FOUND THAT "NO PROOF WAS OFFERED BY ANY PARTY THAT THE SPECIFIC
BOUNDARIES CREATED BY CHAPTER 980 WERE DRAWN ON RACIAL LINES OR THAT
THE LEGISLATURE WAS MOTIVATED BY CONSIDERATIONS OF RACE, CREED OR
COUNTRY OF ORIGIN IN CREATING THE DISTRICTS."  (FN5) HE CONCLUDED,
"PLAINTIFFS HAVING FAILED UPON THE FACTS AND THE LAW TO ESTABLISH ANY
VIOLATION OF THEIR CONSTITUTIONAL RIGHTS AS A RESULT OF THE ACTION OF
THE NEW YORK LEGISLATURE IN ENACTING CHAPTER 980 OF THE LAWS OF 1961,
THE COMPLAINT MUST BE DISMISSED."  (FN6)  JUDGE FEINBERG CONCURRED IN
JUDGE MOORE'S RESULT BECAUSE HE, TOO, BELIEVED THAT APPELLANTS HAD 

"NOT MET THEIR BURDEN OF PROVING THAT THE BOUNDARIES OF THE NEW 17TH,
18TH, 19TH, AND 20TH CONGRESSIONAL DISTRICTS WERE DRAWN ALONG RACIAL
LINES, AS THEY ALLEGE  ...  . 

     *      *         *         *         * 

"  ...  PLAINTIFFS DID INTRODUCE EVIDENCE WHICH MIGHT JUSTIFY AN
INFERENCE THAT RACIAL CONSIDERATIONS MOTIVATED THE 1961 REAPPORTIONMENT
OF CONGRESSIONAL DISTRICTS IN MANHATTAN.  HOWEVER, OTHER INFERENCES, AS
SET FORTH BELOW, ARE EQUALLY OR MORE JUSTIFIABLE.  PLAINTIFFS HAVE A
DIFFICULT BURDEN TO MEET IN ATTACKING THE CONSTITUTIONALITY OF THIS
STATE STATUTE  ...  .  UPON ANALYSIS, I DO NOT THINK THAT BURDEN HAS
BEEN MET. 

     *         *         *    *         * 

"  ...  IN SHORT, BASED UPON THE ENTIRE RECORD, I DO NOT FEEL THAT
PLAINTIFFS HAVE PROVED THEIR CASE."  (FN7) 

JUDGE MURPHY DISSENTED.  HE VIEWED THE EVIDENCE AS "TANTAMOUNT FOR
ALL PRACTICAL PURPOSES, TO A MATHEMATICAL DEMONSTRATION" THAT THE
LEGISLATION WAS "SOLELY CONCERNED WITH SEGREGATING" WHITE VOTERS FROM
COLORED AND PUERTO RICAN VOTERS "BY FENCING COLORED AND PUERTO RICAN
CITIZENS OUT OF THE 17TH DISTRICT AND INTO A DISTRICT OF THEIR OWN (THE
18TH)" AND AS ESTABLISHING "PER SE A PRIMA FACIE CASE OF A LEGISLATIVE
INTENT TO DRAW CONGRESSIONAL DISTRICT LINES IN THE 17TH AND 18TH
DISTRICTS ON THE BASIS OF RACE AND NATIONAL ORIGIN."  (FN8) 

WHILE A NUMBER OF OTHER MATTERS HAVE BEEN DISCUSSED, WE FIND IT
NECESSARY TO DECIDE ONLY THE FIRST QUESTION PRESENTED IN THE
JURISDICTIONAL STATEMENT, NAMELY "WHETHER APPELLANTS SUSTAINED THEIR
BURDEN OF PROVING THAT THE PORTION OF CHAPTER 980  ...  WHICH
DELINEATES THE BOUNDARIES OF THE CONGRESSIONAL DISTRICTS IN MANHATTAN
ISLAND SEGREGATES ELIGIBLE VOTERS BY RACE AND PLACE OF ORIGIN IN
VIOLATION OF THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE
FOURTEENTH AMENDMENT AND IN VIOLATION OF THE FIFTEENTH AMENDMENT."  WE
ACCEPT THE FINDINGS OF THE MAJORITY OF THE DISTRICT COURT THAT
APPELLANTS FAILED TO PROVE THAT THE NEW YORK LEGISLATURE WAS EITHER
MOTIVATED BY RACIAL CONSIDERATIONS OR IN FACT DREW THE DISTRICTS ON
RACIAL LINES.  COMPARE GOMILLION V. LIGHTFOOT, 364 U.S. 339.  IT MAY BE
TRUE, AS JUDGE FEINBERG THOUGHT, THAT THERE WAS EVIDENCE WHICH COULD
HAVE SUPPORTED INFERENCES THAT RACIAL CONSIDERATIONS MIGHT HAVE MOVED
THE STATE  LEGISLATURE, BUT, EVEN IF SO, WE AGREE THAT THERE ALSO WAS
EVIDENCE TO SUPPORT HIS FINDING THAT THE CONTRARY INFERENCE WAS
"EQUALLY, OR MORE, PERSUASIVE."  (FN9)  WHERE THERE ARE SUCH
CONFLICTING INFERENCES ONE GROUP OF THEM CANNOT, BECAUSE LABELED AS
"PRIMA FACIE PROOF," BE TREATED AS CONCLUSIVE ON THE FACT FINDER SO AS
TO DEPRIVE HIM OF HIS RESPONSIBILITY TO CHOOSE AMONG DISPUTED
INFERENCES.  AND THIS IS TRUE WHETHER THE CONFLICTING INFERENCES ARE
DRAWN FROM EVIDENCE OFFERED BY THE PLAINTIFF OR BY THE DEFENDANT OR BY
BOTH.  HERNANDEZ V. TEXAS, 347 U.S. 475, DOES NOT SUPPORT THE
DISSENTING VIEW OF JUDGE MURPHY THAT APPELLANTS' EVIDENCE HERE
ESTABLISHED A PRIMA FACIE CASE COMPELLING THE DISTRICT COURT, DESPITE
CONFLICTING INFERENCES WHICH COULD BE DRAWN FROM THAT EVIDENCE, TO FIND
THAT NEW YORK CREATED THESE DISTRICTS ON THE BASIS OF RACE AND PLACE OF
ORIGIN.  HERNANDEZ FOLLOWED THE RULE LAID DOWN IN NORRIS V. ALABAMA,
294 U.S. 587, AND OTHER CASES, (FN10) THAT PROOF OF A LONG-CONTINUED
STATE PRACTICE OF NOT CALLING NEGROES AS JURORS MADE OUT A PRIMA FACIE
CASE SUFFICIENT TO JUSTIFY, BUT NOT NECESSARILY TO COMPEL, A FINDING OF
DISCRIMINATION ON ACCOUNT OF RACE.  THE CONCLUSION OF RACIAL
DISCRIMINATION IN THOSE CASES WAS REACHED ONLY AFTER AN APPRAISAL OF
THIS PRACTICE ALONG WITH ALL THE CIRCUMSTANCES.  IT IS PLAIN TO US THAT
THE DISTRICT COURT WAS NOT COMPELLED TO FIND THAT THESE DISTRICTS WERE
THE PRODUCT OF A STATE CONTRIVANCE TO DISCRIMINATE AGAINST COLORED OR
PUERTO RICAN VOTERS.  AS THE MAJORITY BELOW POINTED OUT, THE
CONCENTRATION OF COLORED AND PUERTO RICAN VOTERS IN ONE AREA IN THE
COUNTY MADE IT DIFFICULT, EVEN ASSUMING IT TO BE PERMISSIBLE, TO FIX
DISTRICTS SO AS TO HAVE ANYTHING LIKE AN EQUAL DIVISION OF THESE VOTERS
AMONG THE DISTRICTS.  (FN11)  UNDOUBTEDLY SOME OF THESE VOTERS, AS
SHOWN BY THIS LAWSUIT, WOULD PREFER A MORE EVEN DISTRIBUTION OF
MINORITY GROUPS AMONG THE FOUR CONGRESSIONAL DISTRICTS, BUT OTHERS,
LIKE THE INTERVENORS IN THIS CASE, WOULD ARGUE STRENUOUSLY THAT THE
KIND OF DISTRICTS FOR WHICH APPELLANTS CONTENDED WOULD BE UNDESIRABLE
AND, BECAUSE BASED ON RACE OR PLACE OF ORIGIN, WOULD THEMSELVES BE
UNCONSTITUTIONAL. 

WE ACCEPT THE DISTRICT COURT'S FINDING THAT APPELLANTS HAVE NOT SHOWN
THAT THE CHALLENGED PART OF THE NEW YORK ACT WAS THE PRODUCT OF A STATE
CONTRIVANCE TO SEGREGATE ON THE BASIS OF RACE OR PLACE OF ORIGIN.  THAT
FINDING WAS CRUCIAL TO APPELLANTS' CASE AS THEY PRESENTED IT, AND FOR
THAT REASON THEIR CHALLENGE CANNOT BE SUSTAINED.  WE DO NOT PASS ON THE
QUESTION WHICH APPELLANTS HAVE NOT PRESENTED HERE, THAT IS, WHETHER THE
STATE APPORTIONMENT IS CONSTITUTIONALLY INVALID BECAUSE IT MAY FAIL IN
ITS OBJECTIVE TO CREATE DISTRICTS BASED AS NEARLY AS PRACTICABLE ON
EQUAL POPULATION.(FN12) SEE WESBERRY V. SANDERS, ANTE, P. 1.  SINCE NO
SUCH CHALLENGE HAS BEEN URGED HERE, THE ISSUES HAVE NOT BEEN FORMULATED
TO BRING IT INTO FOCUS, AND THE EVIDENCE HAS NOT BEEN OFFERED OR
APPRAISED TO DECIDE IT, OUR HOLDING HAS NO BEARING ON THAT WHOLLY
SEPARATE QUESTION. 

THE JUDGMENT DISMISSING THE COMPLAINT IS AFFIRMED. 

FN1  N.Y. STATE LAW, SEC 111. 

FN2  THE COMPLAINT ALSO STATED THAT UNCONSTITUTIONAL DISTRICTING HAD
EXISTED FOR MANY YEARS BUT THAT REPEATED EFFORTS TO BRING ABOUT
LEGISLATIVE CORRECTION HAD BEEN OF NO AVAIL, PARTLY BECAUSE OF
UNCONSTITUTIONAL APPORTIONMENT OF THE STATE LEGISLATURE.  APPELLANTS
DID NOT OFFER PROOF TO SUPPORT THESE ALLEGATIONS, HOWEVER. 

FN3  THE POPULATION OF THE SEVENTEENTH CONGRESSIONAL DISTRICT WAS
382,330; THE EIGHTEENTH, 431,330; THE NINETEENTH, 445,175; AND THE
TWENTIETH, 439,456. 

FN4  211 F. SUPP. 460. 

FN5  ID., AT 462. 

FN6  ID., AT 468. 

FN7  ID., AT 468, 469, 471. 

FN8 ID., AT 472-473. 

FN9  ID., AT 471. 

FN10  E.G., PIERRE V. LOUISIANA, 306 U.S. 354, 361-362; SMITH V.
TEXAS, 311 U.S. 128, 130-131; HILL V. TEXAS, 316 U.S. 400, 404. 

FN11  211 F. SUPP., AT 467-468 (MOORE, J.), 471 (FEINBERG,J.). 

FN12  THE COMMITTEE OF THE NEW YORK LEGISLATURE WHICH PROPOSED THE
1961 APPORTIONMENT BILL SAID IN ITS REPORT, "IT IS THE CONCLUSION OF
YOUR COMMITTEE THAT THE MOST IMPORTANT STANDARD IS SUBSTANTIAL EQUALITY
OF POPULATION."  MCKINNEY'S N.Y. LAWS, 1961 (SECOND EXTRAORDINARY
SESSION), 63, 64. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE OPINION OF THE COURT ON THE PREMISE THAT THE ONLY ISSUE IN
THIS CASE INVOLVES ALLEGED RACIALLY SEGREGATED DISTRICTS.  THE CASE IS
THUS, IN MY OPINION, GOVERNED BY ENTIRELY DIFFERENT CONSTITUTIONAL
CONSIDERATIONS, SEE GOMILLION V. LIGHTFOOT, 364 U.S. 339, THAN THOSE
WHICH I BELIEVE SHOULD GOVERN IN WESBERRY V. SANDERS, ANTE, P. 1, ALSO
DECIDED TODAY, IN WHICH I HAVE FILED A DISSENTING OPINION, ANTE, P.
20. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE GOLDBERG CONCURS,
DISSENTING. 

THIS CASE RAISES A QUESTION KIN TO THAT IN GOMILLION V. LIGHTFOOT,
364 U.S. 399, WHERE RACIAL GERRYMANDERING WAS USED TO DEPRIVE NEGROES
OF THE RIGHT TO VOTE.  HERE NO NEGROES ARE DEPRIVED OF THE FRANCHISE. 
RATHER, ZIGZAG, TORTUOUS LINES ARE DRAWN TO CONCENTRATE NEGROES AND
PUERTO RICANS IN MANHATTAN'S EIGHTEENTH CONGRESSIONAL DISTRICT AND
PRACTICALLY TO EXCLUDE THEM FROM THE SEVENTEENTH CONGRESSIONAL
DISTRICT.  NEIGHBORHOODS IN OUR LARGER CITIES OFTEN CONTAIN MEMBERS OF
ONLY ONE RACE; AND THOSE WHO DRAW THE LINES OF CONGRESSIONAL DISTRICTS
CANNOT BE EXPECTED TO DISREGARD NEIGHBORHOODS IN AN EFFORT TO MAKE EACH
DISTRICT A MULTIRACIAL ONE.  (FN1)  BUT WHERE, AS HERE, THE LINE THAT
IS DRAWN CAN BE EXPLAINED ONLY IN RACIAL TERMS, A DIFFERENT PROBLEM IS
PRESENTED. 

                                  I. 

MANHATTAN IS DIVIDED INTO FOUR DISTRICTS AND AS A RESULT OF THE
SERPENTINE PATH THAT THE LINES FOLLOW, THOSE DISTRICTS REFLECT
SUBSTANTIAL, THOUGH NOT COMPLETE, SEGREGATION BY RACES:

                              NEGRO AND PUERTO

  WHITE PERCENT     RICAN PERCENT OF 

DISTRICT       OF DISTRICT          DISTRICT 

17TH              94.9        5.1 

18TH              13.7                 86.3 

19TH              71.5                 28.5 

20TH    72.5                 27.5 

IN 1961 THE LEGISLATURE EXPANDED THE SEVENTEENTH DISTRICT BY ALTERING
ITS BOUNDARIES IN THREE RESPECTS:  (1) IT ADDED AN AREA ON THE UPPER
EAST SIDE BETWEEN 59TH STREET AND 89TH STREET OF WHOSE POPULATION
NEGROES AND PUERTO RICANS MAKE UP 2.7% OF THE TOTAL; (FN2) (2) IT ADDED
AN AREA ON THE LOWER EAST SIDE CALLED STUYVESANT TOWN OF WHOSE
POPULATION NEGROES AND PUERTO RICANS MAKE UP 0.5% OF THE TOTAL; AND (3)
IT DROPPED FROM THE SEVENTEENTH DISTRICT AND ADDED TO THE EIGHTEENTH
DISTRICT A TWO-BLOCK AREA FROM 98TH STREET TO 100TH STREET BETWEEN
FIFTH AVENUE AND MADISON AVENUE OF WHOSE POPULATION NEGROES AND PUERTO
RICANS MAKE UP 44.5% OF THE TOTAL.    TO ACHIEVE THIS RACIAL
GERRYMANDERING, CAREFUL MANIPULATION OF THE BOUNDARIES OF THE
EIGHTEENTH DISTRICT WAS NECESSARY.  THE SOUTHEAST CORNER IS NEAR THE
EAST RIVER AND FROM THER IT GOES - WEST FOUR BLOCKS, NORTH TWO BLOCKS,
WEST ONE BLOCK, NORTH FIVE BLOCKS, WEST ONE BLOCK, NORTH ONE BLOCK,
WEST ONE BLOCK, NORTH ONE BLOCK, WEST ONE BLOCK, NORTH ELEVEN BLOCKS,
WEST FIVE BLOCKS ACROSS THE NORTHERN LINE OF CENTRAL PARK TO
MORNINGSIDE, NORTH ALONG MORNINGSIDE ABOUT TWELVE BLOCKS, WEST ONE
BLOCK, NORTH ALONG AMSTERDAM FROM 122D TO 150TH, EAST TWO BLOCKS, NORTH
FIFTEEN BLOCKS TO 165TH, AND EAST TO EAST RIVER. 

THE RECORD STRONGLY SUGGESTS THAT THESE TWISTS AND TURNS PRODUCING AN
11-SIDED, STEP-SHAPED BOUNDARY BETWEEN THE SEVENTEENTH AND EIGHTEENTH
DISTRICTS WERE MADE TO BRING INTO THE EIGHTEENTH DISTRICT AND KEEP OUT
OF THE SEVENTEENTH AS MANY NEGROES AND PUERTO RICANS AS POSSIBLE. 
THERE IS TO BE SURE NO FINDING TO THIS EFFECT BY THE THREE-JUDGE
DISTRICT COURT.  ONE OF THE THREE JUDGES THOUGHT, AS I DO, THAT THE
UNCONTRADICTED FACTS ESTABLISH PER SE A PRIMA FACIE CASE OF A
LEGISLATIVE PURPOSE TO DESIGN THE SEVENTEENTH AND EIGHTEENTH DISTRICTS
ON RACIAL LINES (211 F. SUPP. 460, 472-473), SAYING THAT: "IN GOMILLION
...  IT WAS A GLARING EXCLUSION OF NEGROES FROM A MUNICIPAL DISTRICT. 
HERE IT IS A SUBTLE EXCLUSION FROM A 'SILK STOCKING DISTRICT' (AS THE
17TH IS SO FREQUENTLY REFERRED TO) AND A JAMMING IN OF COLORED AND
PUERTO RICANS INTO THE 18TH OR THE KIND OF SEGREGATION THAT APPEALS TO
THE INTERVENORS."  ID., AT 474-475. 

A SECOND JUDGE CONCLUDED THAT PETITIONERS "HAVE NOT MET THEIR BURDEN
OF PROVING" THAT THE BOUNDARIES IN QUESTION WERE "DRAWN ALONG RACIAL
LINES."  ID., AT 468.  THE THIRD JUDGE EXPRESSED NO VIEW ON THE PRECISE
ISSUE.  (FN3) 

THE EVIDENCE WHICH I HAVE SUMMARIZED WAS NOT REBUTTED OR CHALLENGED,
THE STATE INTRODUCING NO EVIDENCE.  WE HAVE NOT ONLY INFERENCES FROM
CONCEDED FACTS BUT ALSO NEW YORK'S FRANK CONCESSION THAT IT IS NOT
POSSIBLE TO SAY "THAT RACE IS IRRELEVANT TO DISTRICTING." 

RACIAL SEGREGATION THAT IS STATE-SPONSORED SHOULD BE NULLIFIED
WHATEVER MAY HAVE BEEN INTENDED.  IN JOHNSON V. VIRGINIA, 373 U.S. 61,
WE HELD SEGREGATION OF A COURTROOM AUDIENCE BY RACE TO BE
UNCONSTITUTIONAL, WITHOUT STOPPING TO INQUIRE WHAT THE MOTIVE MAY HAVE
BEEN.  A WELL-SETTLED PROPOSITION APPLICABLE TO MANY RIGHTS IN THE
CONSTITUTIONAL SPECTRUM IS THAT THERE MAY BE AN ABRIDGEMENT "EVEN
THOUGH UNINTENDED."  SEE NAACP V. ALABAMA, 357 U.S. 449, 461, AND CASES
CITED.  WHAT THE STATE HAS DONE IS OFTEN CONCLUSIVE IRRESPECTIVE OF
MOTIVE.  EUBANKS V. LOUISIANA, 356 U.S. 584, 587-588. 

I HAD ASSUMED THAT SINCE BROWN V. BOARD OF EDUCATION, 347 U.S. 483,
NO STATE MAY SEGREGATE PEOPLE BY RACE IN THE PUBLIC AREAS.  THE DESIGN
OF VOTING DISTRICTS INVOLVES ONE IMPORTANT PUBLIC AREA - AS IMPORTANT
AS SCHOOLS, PARKS, AND COURTROOMS.  WE SHOULD UPROOT ALL VESTIGES OF
PLESSY V. FERGUSON, 163 U.S. 537, FROM THE PUBLIC AREA. 

THE INTERVENORS ARE PERSONS WHO APPARENTLY HAVE A VESTED INTEREST IN
CONTROL OF THE SEGREGATED EIGHTEENTH DISTRICT.  (FN4)  THEY AND THE
STATE SEEM TO SUPPORT THIS SEGREGATION NOT ON THE "SEPARATE BUT EQUAL"
THEORY OF PLESSY V. FERGUSON, SUPRA, BUT ON ANOTHER THEORY.  THEIR
THEORY MIGHT BE CALLED THE THEORY OF "SEPARATE BUT BETTER OFF" - A
THEORY THAT HAS BEEN USED BEFORE.  A LIKE ARGUMENT WAS MADE IN BUCHANAN
V. WARLEY, 245 U.S. 60, 81, IN SUPPORT OF MUNICIPAL SEGREGATION OF
RESIDENTAIL AREAS; IN DISTRICT OF COLUMBIA V. THOMPSON, 346 U.S. 100,
IN SUPPORT OF SEGREGATION IN RESTAURANTS; IN WATSON V. MEMPHIS, 373
U.S. 526, IN SUPPORT OF DELAYED INTEGRATION OF MUNICIPAL PARKS. 
INDEED, THE FINAL ARGUMENT OF JOHN W. DAVIS FOR SOUTH CAROLINA IN BROWN
V. BOARD OF EDUCATION, SUPRA, ENDED WITH THE WORDS, "THE GOOD IS
SOMETIMES BETTER THAN THE BEST." 

THE FACT THAT NEGRO POLITICAL LEADERS FIND ADVANTAGE IN THIS NEARLY
SOLID NEGRO AND PUERTO RICAN DISTRICT IS IRRELEVANT TO OUR PROBLEM. 
ROTTEN BOROUGHS WERE LONG A CURSE OF DEMOCRATIC PROCESSES.  RACIAL
BOROUGHS ARE ALSO AT WAR WITH DEMOCRATIC STANDARDS. 

                                  II. 

WHAT WE HAVE IN THE SEVENTEENTH AND EIGHTEENTH DISTRICTS IN MANHATTAN
IS COMPARABLE TO THE ELECTORAL REGISTER SYSTEM WHICH BRITAIN INTRODUCED
INTO INDIA.  THAT SYSTEM GAVE A SEPARATE CONSTITUENCY TO SIKHS,
MUSLIMS, ANGLO-INDIANS, EUROPEANS, AND INDIAN CHRISTIANS.  (FN5)
RELIGIOUS MINORITIES FOUND COMFORT AND SAFETY IN SUCH AN ARRANGEMENT. 
A MUSLIM DEPUTATION MADE THE FOLLOWING DEMAND:  (FN6) 

"(1)  THAT IN THE WHOLE OF INDIA THE MUSLIMS NUMBER OVER 62 MILLIONS
OR BETWEEN ONE-FIFTH AND ONE-FOURTH OF THE TOTAL POPULATION: 

"(2)  THAT AS THEIR NUMBERS EXCEED THE ENTIRE POPULATION OF ANY FIRST
CLASS EUROPEAN POWER, EXCEPT RUSSIA, MUSLIMS MIGHT JUSTLY CLAIM
ADEQUATE RECOGNITION AS AN IMPORTANT FACTOR IN THE STATE: 

"(3)  THAT THE REPRESENTATION HITHERTO ACCORDED TO THEM, ALMOST
ENTIRELY BY NOMINATION, HAD BEEN INADEQUATE TO THEIR REQUIREMENTS AND
HAD NOT ALWAYS CARRIED WITH IT THE APPROVAL OF THOSE WHOM THE NOMINEES
WERE SELECTED TO REPRESENT; AND: 

"(4)  THAT WHILE MUSLIMS ARE A DISTINCT COMMUNITY WITH ADDITIONAL
INTERESTS OF THEIR OWN, WHICH ARE NOT SHARED BY OTHER COMMUNITIES, NO
MUSLIM WOULD EVER BE RETURNED BY THE EXISTING ELECTORAL BODIES, UNLESS
HE WORKED IN SYMPATHY WITH THE HINDU MAJORITY IN ALL MATTERS OF
IMPORTANCE." 

LORD MORLEY MADE THE FOLLOWING REPLY:  (FN7) 

"THE MUSLIMS DEMAND THREE THINGS.  I HAD THE PLEASURE OF RECEIVING A
DEPUTATION FROM THEM AND I KNOW VERY WELL WHAT IS IN THEIR MINDS.  THEY
DEMAND AN ELECTION OF THEIR OWN REPRESENTATIVES TO THESE COUNCILS IN
ALL THE STAGES JUST AS IN CYPRUS, WHERE, I THINK, MUSLIMS VOTE BY
THEMSELVES; THEY HAVE NINE VOTES AND THE NON-MUSLIMS HAVE THREE OR THE
OTHER WAY ABOUT; SO IN BOHEMIA WHERE THE GERMANS VOTE ALONE AND HAVE
THEIR OWN REGISTER; THEREFORE WE ARE NOT WITHOUT A PRECEDENT AND A
PARALLEL FOR THE IDEA OF A SEPARATE REGISTER.  SECONDLY, THEY WANT A
NUMBER OF SEATS IN EXCESS OF THEIR NUMERICAL STRENGTH.  THESE TWO
DEMANDS WE ARE QUITE READY AND INTEND TO MEET IN FULL." 

HINDUS RESPONDED FAVORABLY.  (FN8)  THE JOINT REPORT OF 1918 STATED:
(FN9) 

"SOME PERSONS HOLD THAT FOR A PEOPLE, SUCH AS THEY DEEM THOSE OF
INDIA TO BE, SO DIVIDED BY RACE, RELIGION AND CASTE AS TO BE UNABLE TO
CONSIDER THE INTERESTS OF ANY BUT THEIR OWN SECTION, A SYSTEM OF
COMMUNAL ELECTORATES AND CLASS REPRESENTATION IS NOT MERELY INEVITABLE
BUT IS ACTUALLY BEST.  THEY MAINTAIN THAT IT EVOKES AND APPLIES THE
PRINCIPLE OF DEMOCRACY OVER THE WIDEST RANGE OVER WHICH IT IS ACTUALLY
ALIVE AT ALL, BY APPEALING TO THE INSTINCTS WHICH ARE STRONGEST; AND
THAT WE MUST HOPE TO DEVELOP THE FINER, WHICH ARE ALSO AT PRESENT THE
WEAKER INSTINCTS BY USING THE FORCES THAT REALLY COUNT.  ACCORDING TO
THIS THEORY COMMUNAL REPRESENTATION IS AN INEVITABLE AND EVEN A HEALTHY
STAGE IN THE DEVELOPMENT OF A NON-POLITICAL PEOPLE." 

AS ALREADY NOTED, THE ELECTORAL REGISTER SYSTEM WAS NOT PECULIAR TO
BRITISH INDIA.  OTHER NATIONS USED IT.  (FN10)  LEBANON TODAY HAS A
MODIFIED VERSION:  EACH OF EIGHT RELIGIOUS GROUPS HAS ELECTORAL
DISTRICTS FROM WHICH ONLY A MEMBER OF THAT FAITH CAN BE CHOSEN FOR THE
LEGISLATURE.  (FN11) 

RACIAL ELECTORAL REGISTERS, LIKE RELIGIOUS ONES, HAVE NO PLACE IN A
SOCIETY THAT HONORS THE LINCOLN TRADITION - "OF THE PEOPLE, BY THE
PEOPLE, FOR THE PEOPLE."  HERE THE INDIVIDUAL IS IMPORTANT, NOT HIS
RACE, HIS CREED, OR HIS COLOR.  THE PRINCIPLE OF EQUALITY IS AT WAR
WITH THE NOTION THAT DISTRICT A MUST BE REPRESENTED BY A NEGRO, AS IT
IS WITH THE NOTION THAT DISTRICT B MUST BE REPRESENTED BY A CAUCASIAN,
DISTRICT C BY A JEW, DISTRICT D BY A CATHOLIC, AND SO ON.  CF. GRAY V.
SANDERS, 372 U.S. 368, 379.  THE RACIAL ELECTORAL REGISTER SYSTEM
WEIGHTS VOTES ALONG ONE RACIAL LINE MORE HEAVILY THAN IT DOES OTHER
VOTES.  THAT SYSTEM, BY WHATEVER NAME IT IS CALLED, IS A DIVISIVE FORCE
IN A COMMUNITY, EMPHASIZING DIFFERENCES BETWEEN CANDIDATES AND VOTERS
THAT ARE IRRELEVANT IN THE CONSTITUTIONAL SENSE.  OF COURSE RACE, LIKE
RELIGION, PLAYS AN IMPORTANT ROLE IN THE CHOICES WHICH INDIVIDUAL
VOTERS MAKE FROM AMONG VARIOUS CANDIDATES.  (FN12)  BUT GOVERNMENT HAS
NO BUSINESS DESIGNING ELECTORAL DISTRICTS ALONG RACIAL OR RELIGIOUS
LINES.  WE HELD IN AKINS V. TEXAS, 325 U.S. 398, 403, AND IN BROWN V.
ALLEN, 344 U.S. 443, 471, THAT COURTS IN SELECTING JURIES NEED NOT -
INDEED SHOULD NOT - GIVE EACH JURY LIST THE PROPORTIONAL RACIAL
COMPLEXION THAT THE COMMUNITY HAS.  IF RACE IS NOT A PROPER CRITERION
FOR DRAWING A JURY LIST, HOW CAN IT BE IN DESIGNING AN ELECTORAL
DISTRICT? 

IN ANDERSON V. MARGIN, 375 U.S. 399, WE BARRED LOUISIANA FROM PUTTING
ON A BALLOT OPPOSITE A NEGRO CANDIDATE'S NAME THE WORD "NEGRO," AS IT
WAS A DEVICE ENCOURAGING RACIAL DISCRIMINATION.  WHEN WE SAID IN THAT
CASE THAT A STATE MAY NOT ENCOURAGE ITS CITIZENS "TO VOTE FOR A
CANDIDATE SOLELY ON ACCOUNT OF RACE," ID., AT 404, I HAD ASSUMED THAT
WE WOULD HOLD A FORTIORI THAT NO STATE COULD MAKE AN ELECTORAL DISTRICT
OUT OF ANY RACIAL BLOC UNLESS THE ELECTORAL UNIT REPRESENTED AN ACTUAL
NEIGHBORHOOD.  YET WE VIOLATE THAT PRINCIPLE HERE. 

WHEN RACIAL OR RELIGIOUS LINES ARE DRAWN BY THE STATE, THE
MULTIRACIAL, MULTIRELIGIOUS COMMUNITIES THAT OUR CONSTITUTION SEEKS TO
WELD TOGETHER AS ONE BECOME SEPARATIST; ANTAGONISMS THAT RELATE TO RACE
OR TO RELIGION RATHER THAN TO POLITICAL ISSUES ARE GENERATED;
COMMUNITIES SEEK NOT THE BEST REPRESENTATIVE BUT THE BEST RACIAL OR
RELIGIOUS PARTISAN.  SINCE THAT SYSTEM IS AT WAR WITH THE DEMOCRATIC
IDEAL, IT SHOULD FIND NO FOOTING HERE. 

"SEPARATE BUT EQUAL" AND "SEPARATE BUT BETTER OFF" HAVE NO MORE PLACE
IN VOTING DISTRICTS THAN THEY HAVE IN SCHOOLS, PARKS, RAILROAD
TERMINALS, OR ANY OTHER FACILITY SERVING THE PUBLIC. 

FN1  NOR DOES THE CONSTITUTION REQUIRE A SCHEME FOR EXACT EQUALITY IN
DISTRICTING, LET ALONE A "MATHEMATICALLY-BASED PROCEDURE FOR
DISTRICTING WHICH PRODUCES CONTIGUOUS DISTRICTS NEARLY EQUAL IN
POPULATION."  SEE WEAVER AND HESS, A PROCEDURE FOR NONPARTISAN
DISTRICTING:  DEVELOPMENT OF COMPUTER TECHNIQUES, 73 YALE L.J. 288, 307
(1963). 

FN2  AN AREA EXTENDING FROM 89TH STREET TO 95TH STREET, BETWEEN THIRD
AVENUE AND THE EAST RIVER, WAS LEFT IN THE EIGHTEENTH DISTRICT.  THIS
AREA OF 10,507 PERSONS IS LESS THAN 5% NEGRO AND PUERTO RICAN.  THERE
IS, HOWEVER, A NEW LOW-COST PUBLIC HOUSING PROJECT (OF THE TYPE IN
WHICH THE AVERAGE NEGRO-PUERTO RICAN OCCUPANCY IN MANHATTAN WILL BE
ABOUT 75%) WHICH HAS BEEN SCHEDULED FOR CONSTRUCTION IN THAT AREA. 
BECAUSE OF THAT PROJECT AND THE GENERAL SOUTHWARD PUSH OF THE NEGRO AND
PUERTO RICAN POPULATION, THE AREA SOUTH OF 95TH STREET APPEARS TO BE
BUT A TEMPORARY BUFFER ZONE. 

FN3  THE CLOSEST INTIMATION, THOUGH NOT ON THE PRECISE ISSUE, IS
CONTAINED IN THE FOLLOWING STATEMENT WHICH HE MADE IN HIS OPINION: 

"NO PROOF WAS TENDERED THAT THE LEGISLATURE IN DRAWING THE DISTRICT
LINES IN PREVIOUS YEARS WAS MOTIVATED OR INFLUENCED BY ANY
CONSIDERATIONS WHICH HAVE BECOME UNCONSTITUTIONAL DURING SUBSEQUENT
YEARS.  PLAINTIFFS WHOLLY FAILED TO SUPPORT THEIR ALLEGATIONS OF
'REPEATED AND ENERGETIC EFFORTS' TO SEEK LEGISLATIVE CORRECTION OR THAT
EFFORTS WERE UNAVAILING BECAUSE OF UNCONSTITUTIONAL APPORTIONMENT." 
211 F. SUPP., AT 467. 

FN4  ADAM CLAYTON POWELL HAS REPRESENTED THE EIGHTEENTH DISTRICT IN
CONGRESS SINCE 1945. 

FN5  ACHARYA, INDIAN ELECTIONS AND FRANCHISE (1937), P. 17: 

"NO ONE WHO IS NOT A SIKH, A MUHAMMADAN, ANGLO INDIAN, EUROPEAN OR AN
INDIAN CHRISTIAN, IS ENTITLED TO BE INCLUDED IN A SIKH, MUHAMMADAN,
ANGLO INDIAN, EUROPEAN OR AN INDIAN CHRISTIAN CONSTITUENCY
RESPECTIVELY.  NO PERSON WHO IS ENTITLED TO BE INCLUDED IN A SIKH,
MUHAMMADAN, ANGLO INDIAN, EUROPEAN OR AN INDIAN CHRISTIAN CONSTITUENCY
WILL BE INCLUDED IN THE ELECTORAL ROLL FOR A GENERAL CONSTITUENCY IN A
PROVINCE." 

FN6  AHSAN, COMMUNITY ELECTORATES IN INDIA (1934), PP. 6-7. 

FN7  ID., AT 11. 

FN8  ID., AT 12. 

FN9  ID., AT 16. 

FN10  THE CONSTITUTION OF MODERN CYPRUS DEVIDES THE ELECTORATE INTO
THE GREEK COMMUNITY, THE TURKISH COMMUNITY, AND RELIGIOUS COMMUNITIES. 
CONSTITUTION OF CYPRUS, AUG. 16, 1960, PT. I, ART. 2(3).  THE
LEGISLATURE IS ALLOTTED 70% TO THE GREEK COMMUNITY AND 30% TO THE
TURKISH.  ID., PT. IV, ART. 62(2).  EACH COMMUNITY ELECTS A COMMUNAL
CHAMBER THAT HAS LEGISLATIVE POWER OVER SELECT MATTERS, E.G., RELIGION,
EDUCATION, PERSONAL STATUS, ETC.  ID., PT. V, ARTS. 86, 87. 

ALLOCATION ALONG COMMUNITY LINES OF SPECIFIED OFFICES APPEARS IN
VARIOUS FORMS AT EACH STRATUM OF GOVERNMENT.  FOR EXAMPLE THE PRESIDENT
IS GREEK, THE VICE PRESIDNET, TURKISH.  ID., PT. I, ART. 1.  "THE
PUBLIC SERVICE SHALL BE COMPOSED AS TO SEVENTY PER CENTUM OF GREEKS AND
AS TO THIRTY PER CENTUM OF TURKS."  ID., PT. VII, ART. 123(1). 

CYPRUS SHOWS SOME OF THE END PRODUCTS OF FRACTIONALIZING COMMUNITIES
BY RACE.  AFTER THE RECENT RIOTS OF TURKS VERSUS GREEKS, ARNOLD TOYNBEE
COMMENTED ON THE CYPRUS COMPEX: 

"UNFORTUNATELY THE CYPRIOTS HAVE TO CONTEND WITH THE INCUBUS OF THEIR
HISTORY, AND OF THE MEMORIES THAT THIS HISTORY HAS LEFT RANKLING IN
THEIR MINDS. 

"CYPRUS, TOGETHER WITH THE LEBANON, IS THE LAST UNPARTITIONED REMNANT
OF A GREAT MULTI-NATIONAL SOCIETY, THE OTTOMAN EMPIRE.  IN THE COURSE
OF THE LAST 150 YEARS, ALL THE REST OF THE VAST FORMER OTTOMAN
DOMINIONS HAS BEEN PARTITIONED INTO A MOSAIC OF NATIONAL SUCCESSOR
STATES, IN EACH OF WHICH SOME SINGLE NATIONALITY IS NOW MASTER OF THE
HOUSE.    "UNFORTUNATELY THE TIDE OF HISTORY HAS RUN TOO STRONGLY IN
THE DIRECTION OF PARTITION ON NATIONAL LINES, WITH ALL THE WOES THAT
THIS INEVITABLY ENTAILS.  THE MUTUAL ANIMOSITY OF THE INTERMINGLED
PEOPLES HAS BEEN TOO STRONG; THE PRESTIGE OF THE EXOTIC WESTERN
POLITICAL IDEOLOGY OF NATIONALISM HAS BEEN TOO POTENT.  IN THE LEBANON,
AS WELL AS IN CYPRUS, A REGIME REQUIRING COOPERATION BETWEEN DIFFERENT
EX-OTTOMAN NATIONALITIES IS SOMETHING OF A TOUR DE FORCE, AS THE RECENT
CIVIL WAR IN THE LEBANON SHOWED.  IN CYPRUS IT WOULD BE UTOPIAN TO HOPE
THAT THE LION AND THE LAMB WILL LIE DOWN TOGETHER, AND THAT A LITTLE
CHILD WILL LEAD THEM.  THE TRUTH IS THAT THERE ARE NO EX-OTTOMAN LAMBS;
THE EX-OTTOMAN PEOPLES ARE ALL LIONS AND TIGERS.    "IT LOOKS THEN AS
IF IN CYPRUS THE PRICE OF POLITICAL STABILIZATION IS GOING TO BE THE
SEGREGATION OF INTERMINGLED NATIONALITIES THAT ARE IRRECONCILABLE." 
WASHINGTON POST, JAN. 11, 1964, P. A8. 

FN11  THE 1927 LEBANESE CONSTITUTION ESTABLISHED A UNICAMERAL
LEGISLATURE.  SEE II PATAI, THE REPUBLIC OF LEBANON (1956), P. 533. 
THE NUMBER OF DEPUTIES NOW IS 99.  STATESMAN'S YEAR-BOOK 1963-1964, P.
1222.  PRIOR TO THAT INCREASE IT HAD 66 MEMBERS ELECTED ACCORDING TO
THE FOLLOWING PROPORTIONAL DIVISION AMONG RELIGIOUS GROUPS:  20
MARONITES; 26 MOSLEMS, OF WHOM 12 WERE SHI'ITES; 7 GREEK ORTHODOX; 4
DRUSES; 4 GREEK CATHOLICS; 3 ARMENIAN ORTHODOX; 1 ARMENIAN CATHOLIC; 1
OTHER RELIGIOUS MINORITY.  17 ENCYCLOPEDIA AMERICANA (1963), P. 175. 
SEE I KHALIL, THE ARAB STATES AND THE ARAB LEAGUE (1962), PP. 124, 133;
ZIADEH, THE LEBANESE ELECTIONS, 14 MIDDLE EAST J. 367 (1960). 

FN12  SEE DAWIDOWICZ AND GOLDSTEIN, POLITICS IN A PLURALISTIC
DEMOCRACY (1963). 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

I FULLY AGREE WITH AND JOIN WHAT MY BROTHER DOUGLAS HAS WRITTEN IN
DISSENT BUT WISH TO ADD THESE WORDS BY WAY OF COMMENT ON THE COURT'S
OPINION. 

THE QUESTION FOR DECISION IN THIS CASE IS WHETHER APPELLANTS HAVE
SUSTAINED THEIR BURDEN OF PROVING THAT THE BOUNDARIES OF THE
SEVENTEENTH AND EIGHTEENTH CONGRESSIONAL DISTRICTS OF NEW YORK WERE
PURPOSEFULLY DRAWN ON RACIAL LINES.  THE COURT RESOLVES THIS QUESTION
AGAINST APPELLANTS BY ACCEPTING "THE DISTRICT COURT'S FINDING THAT
APPELLANTS HAVE NOT SHOWN THAT THE CHALLENGED PART OF THE NEW YORK ACT
WAS THE PRODUCT OF A STATE CONTRIVANCE TO SEGREGATE ON THE BASIS OF
RACE OR PLACE OF ORIGIN."  ANTE, AT 58. 

MY DIFFICULTY WITH THIS CONCLUSION IS THAT THE RECORD DOES NOT
SUPPORT THE COURT'S TREATMENT OF THE DISTRICT COURT'S FINDING.  THE
DISTRICT COURT WAS A THREE-JUDGE COURT AND THE THREE JUDGES DID NOT
AGREE UPON AND, AS A COURT, MADE NO EXPRESS FINDINGS OF FACT.  INSTEAD
THERE WERE THREE SEPARATE AND DIFFERING OPINIONS.  JUDGE MOORE IMPLIED
THAT RACIALLY SEGREGATED VOTING DISTRICTS ARE CONSTITUTIONAL ABSENT A
SHOWING OF SERIOUS UNDER-REPRESENTATION OR OTHER SPECIFIC HARM TO THE
INDIVIDUAL COMPLAINANTS.  211 F. SUPP.  460, 467-468.  HE ALSO
SUGGESTED THAT SEGREGATED VOTING DISTRICTS COULD BE CONSTITUTIONALLY
JUSTIFIED BECAUSE THEY MAY ENABLE PERSONS OF THE SAME RACE OR PLACE OF
ORIGIN "TO OBTAIN REPRESENTATION IN LEGISLATIVE BODIES WHICH OTHERWISE
WOULD BE DENIED TO THEM."  ID., AT 467.  FINALLY, JUDGE MOORE INTIMATED
THAT FACTUALLY SEGREGATED VOTING DISTRICTS WOULD BE UNCONSTITUTIONAL
ONLY WHERE THE LEGISLATURE WAS "MOTIVATED OR INFLUENCED" TO CREATE SUCH
DISTRICTS.  IBID.  TO ESTABLISH THIS MOTIVATION OR INFLUENCE
COMPLAINANTS MUST INTRODUCE PROOF, AND IN THIS CASE NO SUCH PROOF WAS
TENDERED BY THE APPELLANTS WHO, THEREFORE, FAILED TO MAKE A CASE "UPON
THE FACTS AND THE LAW."  ID., AT 468. 

JUDGE MOORE DID NOT IN MY VIEW APPLY THE PROPER CONSTITUTIONAL
STANDARD.  THE CONSTITUTION, I STRONGLY BELIEVE, PROSCRIBES STATE
SANCTIONED RACIAL SEGREGATION IN LEGISLATIVE DISTRICTING AS WELL AS IN
VOTING AND IN PUBLIC SCHOOLS AND FACILITIES.  E.G., BROWN V. BOARD OF
EDUCATION, 347 U.S. 483; GOMILLION V. LIGHTFOOT, 364 U.S. 339; JOHNSON
V. VIRGINIA, 373 U.S. 61; WATSON V. CITY OF MEMPHIS, 373 U.S. 526; GOSS
V. BOARD OF EDUCATION, 373 U.S. 683; ANDERSON V. MARTIN, 375 U.S. 399. 
CERTAINLY IN THESE AREAS THE FOURTEENTH AMENDMENT "NULLIFIES
SOPHISTICATED AS WELL AS SIMPLE-MINDED MODES OF DISCRIMINATION."  CF.
LANE V. WILSON, 307 U.S. 268, 275.  THIS COURT HAS DECLARED STATE
SANCTIONED SEGREGATION INVALID ON THE GROUND THAT, UNDER THE
CONSTITUTION, DISTINCTIONS BY LAW BETWEEN CITIZENS BECAUSE OF THEIR
RACE, ANCESTRY, COLOR OR RELIGION "ARE BY THEIR VERY NATURE ODIOUS TO A
FREE PEOPLE WHOSE INSTITUTIONS ARE FOUNDED UPON THE DOCTRINE OF
EQUALITY."  HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 100.  GIVEN THIS
SETTLED PRINCIPLE THAT STATE-SANCTIONED RACIAL SEGREGATION IS
UNCONSTITUTIONAL PER SE, A SHOWING OF SERIOUS UNDER-REPRESENTATION OR
OTHER SPECIFIC HARM TO INDIVIDUAL COMPLAINANTS IS IRRELEVANT.  I
UNDERSTAND THE COURT'S DECISIONS SINCE BROWN V. BOARD OF EDUCATION,
SUPRA, TO HOLD THAT HARM TO THE NATION AS A WHOLE AND TO WHITES AND
NEGROES ALIKE INHERES IN SEGREGATION.  THE FOURTEENTH AMENDMENT
COMMANDS EQUALITY, AND RACIAL SEGREGATION BY LAW IS INEQUALITY.  JUDGE
MOORE, THEREFORE, DID NOT APPLY THE PROPER CONSTITUTIONAL STANDARD. 

FURTHERMORE, AS I SHALL POINT OUT, JUDGE MOORE ALSO ERRED IN HOLDING
THAT IN ANY EVENT APPELLANTS' PROOF WAS INSUFFICIENT TO ESTABLISH A
PRIMA FACIE CASE OF UNCONSTITUTIONAL RACIAL DISTRICTING. 

JUDGE FEINBERG DISAGREED BOTH WITH JUDGE MOORE'S IMPLICATION THAT
SEGREGATED VOTING DISTRICTS ARE CONSTITUTIONAL ABSENT SERIOUS UNDER
REPRESENTATION AND WITH THE VIEW THAT SEGREGATED DISTRICTS COULD BE
CONSTITUTIONALLY JUSTIFIED BY ALLEGED ADVANTAGES TO PERSONS OF A
PARTICULAR RACE OR PLACE OF ORIGIN.  JUDGE FEINBERG STATED THAT THE
"CONSTITUTIONAL VICE WOULD BE USE BY THE LEGISLATURE OF AN
IMPERMISSIBLE STANDARD, AND THE HARM TO PLAINTIFFS THAT NEED BE SHOWN
IS ONLY THAT SUCH A STANDARD WAS USED."  211 F. SUPP., AT 468.  HE THEN
FRANKLY ACKNOWLEDGED THAT: 

"THE CASE IS A CLOSER ONE FOR ME THAN THE OPINION OF JUDGE MOORE
WOULD INDICATE IT IS FOR HIM.  PLAINTIFFS DID INTRODUCE EVIDENCE WHICH
MIGHT JUSTIFY AN INFERENCE THAT RACIAL CONSIDERATIONS MOTIVATED THE
1961 REAPPORTIONMENT OF CONGRESSIONAL DISTRICTS IN MANHATTAN.  HOWEVER,
OTHER INFERENCES  ...  ARE EQUALLY OR MORE JUSTIFIABLE.  PLAINTIFFS
HAVE A DIFFICULT BURDEN TO MEET IN ATTACKING THE CONSTITUTIONALITY OF
THIS STATE STATUTE."  ID., AT 469. 

JUDGE FEINBERG, ON THIS REASONING, CAST HIS VOTE FOR JUDGE MOORE'S
RESULT ON THE GROUND THAT APPELLANTS FAILED TO SUSTAIN THE "DIFFICULT
BURDEN" OF ATTACKING THE CONSTITUTIONALITY OF THIS STATUTE:  EVEN WHERE
SUCH RACIALLY SEGREGATED DISTRICTING RESULTS AND COMPLAINANTS' EVIDENCE
"MIGHT JUSTIFY AN INFERENCE THAT RACIAL CONSIDERATIONS MOTIVATED" THE
DISTRICTING, STILL COMPLAINANTS FAIL TO SUSTAIN THEIR BURDEN UNLESS
THEY ALSO DISPROVE EVERY OTHER PERMISSIBLE OR REASONABLE PURPOSE WHICH
THE LEGISLATURE MIGHT HAVE HAD IN MIND. 

JUDGE MURPHY, IN HIS DISSENT, AGREED WITH JUDGE FEINBERG AS TO THE
APPLICABLE CONSTITUTIONAL STANDARD.  BUT, ON JUDGE MURPHY'S VIEW OF THE
RECORD, THE APPELLANTS CARRIED THEIR BURDEN OF PROVING THAT "THE
LEGISLATION WAS SOLELY CONCERNED WITH SEGREGATING WHITE, AND COLORED
AND PUERTO RICAN VOTERS BY FENCING COLORED AND PUERTO RICAN CITIZENS
OUT OF THE 17TH DISTRICT AND INTO A DISTRICT OF THEIR OWN (THE 18TH)";
THAT THE LEGISLATION HAD EFFECTED "OBVIOUS SEGREGATION"; AND THAT THE
STATUTE CONSTITUTED A "SUBTLE EXCLUSION" OF NEGROES FROM THE
SEVENTEENTH AND A "JAMMING IN OF COLORED AND PUERTO RICANS INTO THE
18TH OR THE KIND OF SEGREGATION THAT APPEALS TO THE INTERVENORS."  ID.,
AT 473-475.  ACCORDINGLY, JUDGE MURPHY THOUGHT APPELLANTS HAD MET THEIR
BURDEN OF PROVING SEGREGATION AND, IN THE ABSENCE OF ANY PROOF BY THE
STATE OR BY INTERVENORS, WERE ENTITLED TO A JUDGMENT DECLARING THE
STATUTE UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT. 

IN LIGHT OF THESE CONFLICTING OPINIONS AND ANALYSES, THIS CASE CANNOT
BE FAIRLY DECIDED ON THE GROUND STATED IN THE OPINION OF THE COURT,
VIZ., THAT "WE ACCEPT THE DISTRICT COURT'S FINDING."  ANTE, AT 58. 
WHICH FINDING AND UNDER WHAT CONSTITUTIONAL STANDARD - JUDGE MOORE'S,
JUDGE FEINBERG'S OR JUDGE MURPHY'S?  JUDGES MOORE AND FEINBERG, WHO
COMPRISED THE MAJORITY BELOW, DIFFERED BOTH WITH REGARD TO THE
CONSTITUTIONAL STANDARD AND, AS I READ THE OPINIONS, WITH REGARD TO THE
PROOF.  IT SHOULD NOT BE FORGOTTEN THAT THE CONCLUSIONS OF THE DISTRICT
COURT - BOTH AS TO LAW AND FACT - HAVE NOT BEEN REVIEWED BY AN
INTERMEDIATE APPELLATE TRIBUNAL.  INSTEAD THE CASE HAS COME DIRECTLY TO
THIS COURT FROM A THREE-JUDGE DISTRICT COURT AND PRESENTS A RECORD
CONTAINING VARIANT AND INCONSISTENT LEGAL AND FACTUAL CONCLUSIONS. 
EVEN WHERE A THREE-JUDGE DISTRICT COURT HAS MADE A UNANIMOUS FINDING OF
FACT, THIS COURT HAS GIVEN THAT FINDING LESS DEFERENCE WHERE, AS HERE,
IT DEPENDS ON EVIDENCE THAT IS LARGELY DOCUMENTARY AND PARTICULARLY
WHERE, AS HERE, "THE CRUCIAL ISSUES INVOLVE MIXED QUESTIONS OF LAW AND
FACT."  UNITED STATES V. UNITED STATES GYPSUM CO., 333 U.S. 364, 396. 
IN MY VIEW, WE CANNOT, IN LIGHT OF THE RECORD IN THIS CASE, REST OUR
DECISION ON THE "FINDING" OF THE DISTRICT COURT WITHOUT ABDICATING OUR
RESPONSIBILITY FOR PRINCIPLED CONSTITUTIONAL ADJUDICATION. 

MY BROTHER DOUGLAS IN HIS DISSENT HAS SET FORTH THE VIRTUALLY
UNDISPUTED FACTS.  I SHALL NOT REPEAT THEM HERE.  HE HAS ALSO SET FORTH
THE CORRECT CONSTITUTIONAL STANDARD WHICH I BELIEVE WE SHOULD
UNHESITATINGLY REAFFIRM AND APPLY.  ON THE BASIS OF THE EVIDENCE, (FN1)
I AGREE WITH JUDGE MURPHY'S CONCLUSION "THAT THE ONLY AVAILABLE
INFERENCE FROM THE  ...  UNCONTRADICTED FIGURE PICTURE ESTABLISHES PER
SE A PRIMA FACIE CASE OF A LEGISLATIVE INTENT TO DRAW CONGRESSIONAL
DISTRICT LINES IN THE 17TH AND 18TH DISTRICTS ON THE BASIS OF RACE AND
NATIONAL ORIGIN."  ID., AT 472-473.  AT LEAST, HOWEVER, APPELLANTS'
PROOF MADE IT APPEAR PROBABLE THAT A RACIAL CRITERION SHAPED THE 1961
REAPPORTIONMENT AND THAT AN INFERENCE OF RELIANCE ON SUCH AN
IMPERMISSIBLE CRITERION WAS MORE REASONABLE THAN AN INFERENCE THAT
OTHER FACTORS ALONE HAD BEEN USED.  IN MY VIEW, THEN, THIS JUSTIFIABLE
INFERENCE WAS SUFFICIENT TO RAISE A REBUTTABLE PRESUMPTION OF
UNCONSTITUTIONALITY AND, WITHOUT SHIFTING THE ULTIMATE BURDEN OF PROOF,
TO PLACE ON THE STATE THE BURDEN OF GOING FORWARD AND INTRODUCING
REBUTTAL EVIDENCE.  SEE NOTE, 72 YALE L.J. 1041, 1056-1061.  IT MIGHT
BE THAT THE APPELLEES AND INTERVENORS COULD HAVE OFFERED PROOF TO
COUNTERACT THE INFERENCE OF RACIAL DISTRICTING, BUT THEY CHOSE NOT TO
DO SO.  THEY MIGHT, FOR EXAMPLE, HAVE ATTEMPTED TO PROVE THAT THE LINES
WERE DRAWN IN AN ATTEMPT TO EQUALIZE THE POPULATION OF DISTRICTS OR TO
FOLLOW NEIGHBORHOOD LINES.  THE SIMPLE ANSWER IS THAT APPELLEES MADE NO
ATTEMPT WHATEVER TO REBUT THE INFERENCE THAT RACE WAS A CRITERION IN -
OR RACIAL SEGREGATION A PURPOSE OF - THE DISTRICTING.  (FN2) 

THE QUESTION THEREFORE RECURS:  WHAT MORE NEED APPELLANTS HAVE
PROVED?  JUDGE MOORE APPARENTLY WOULD HAVE REQUIRED THEM TO INTRODUCE
PROOF THAT THE LEGISLATURE'S ACTUAL MOTIVE WAS TO CREATE RACIALLY
SEGREGATED VOTING DISTRICTS.  APPELLANTS, HOWEVER, BY THEIR EVIDENCE
ESTABLISHED A PATTERN OF SEGREGATION NOT ADEQUATELY EXPLAINED ON A
GEOMETRIC, GEOGRAPHIC, EQUALIZATION, PARTY-COMPROMISE, NEIGHBORHOOD OR
OTHER BASIS.  TO REQUIRE A SHOWING OF RACIAL MOTIVATION IN THE
LEGISLATURE WOULD PLACE AN IMPOSSIBLE BURDEN ON COMPLAINANTS.  FOR
EXAMPLE, IN THIS CASE THE REDISTRICTING BILL WAS RECOMMENDED AND
SUBMITTED TO THE LEGISLATURE ON NOVEMBER 9, 1961, PASSED ON NOVEMBER
10, 1961, AND SIGNED BY THE GOVERNOR ON THAT DATE.  NO PUBLIC HEARINGS
WERE HAD ON THE BILL AND NO STATEMENTS BY THE BILL'S MANAGERS OR
PUBLISHED DEBATES WERE AVAILABLE.  UNDER THESE CIRCUMSTANCES,
APPELLANTS' EVIDENCE, SHOWING THE FACTUAL PATTERN OF SEGREGATION
OUTLINED BY MR. JUSTICE DOUGLAS AND BY JUDGE MURPHY, WAS SUFFICIENT TO
ESTABLISH A PRIMA FACIE CASE OF UNCONSTITUTIONAL RACIAL DISTRICTING. 
ONCE THIS HAD BEEN DONE, APPELLEES SHOULD HAVE INTRODUCED EVIDENCE
NEGATING THE INFERENCE THAT RACIAL SEGREGATION WAS A PURPOSE OF THE
DISTRICTING.  IN THE ABSENCE OF SUCH PROOF BY THE STATE, I AM COMPELLED
TO CONCLUDE THAT RACIAL SEGREGATION WAS A CRITERION IN - OR A PURPOSE
OF - THE DISTRICTING OF NEW YORK'S SEVENTEENTH AND EIGHTEENTH
CONGRESSIONAL DISTRICTS.  I, THEREFORE, RESPECTFULLY DISSENT. 

FN1  JUDGE MURPHY IN HIS DISSENT STATED: 

"THE UNCONTRADICTED PROOF SUBMITTED BY PLAINTIFFS, HOWEVER,
ESTABLISHES A VISUAL FIGURE PICTURE OF THE END RESULTS OF THE RECENT
REDISTRICTING OF MANHATTAN ISLE (NEW YORK COUNTY) AS FOLLOWS: 

"MANHATTAN HAS A POPULATION OF 1,698,281 PEOPLE AND IS ENTITLED TO
FOUR CONGRESSMEN.  THE CENSUS FIGURES OF 1960 DIVIDED THE ETHNIC GROUPS
INTO ONLY TWO CLASSES - WHITE AND NON-WHITE AND PUERTO RICAN.  THESE
CLASSES HAVE BEEN COUNTED AND ACCORDING TO THE CENSUS 1,058,589 OR
62.3% ARE WHITE AND 639,622 OR 37.7% ARE NON-WHITE AND PUERTO RICAN. 

"THE DISTRICT LINES AS FIXED BY CHAPTER 980 CREATED THE FOUR
DISTRICTS IN QUESTION WITH THE FOLLOWING MAKE-UP:

                     NON-WHITE AND

                  PUERTO RICAN

         TOTAL      WHITE POPULATION   ORIGIN POPULATION DISTRICT
POPULATION     % OF DISTRICT

  OF DISTRICT 

17TH       382,320     362,668  94.9%      19,652   5.1% 

18TH       431,330      59,216 13.7%     372,114  86.3% 

19TH       445,175     318,223  71.5%     126,952  28.5% 

20TH       439,456     318,482  72.5%     120,974  27.5% 

TOTAL    1,698,281   1,058,589  62.3%     639,692  37.7% 

"THE FOLLOWING TABLE SHOWS THE PERCENT OF NON-WHITE PERSONS AND
PERSONS OF PUERTO RICAN ORIGIN IN EACH CONGRESSIONAL DISTRICT IN
RELATION TO THE TOTAL NUMBER OF SUCH PERSONS IN THE ENTIRE COUNTY:
    % OF NON-WHITE AND DISTRICT     PUERTO RICAN OF COUNTY 

17TH                3.1% 

18TH               58.2% 

19TH               19.8% 

20TH               18.9%

              100.0% 

"THE FIGURE PICTURE OF THE 17TH DISTRICT SHOWS THAT THE LINES AS
DRAWN ENCOMPASS A POPULATION 94.9% WHITE AND 5.1% NON-WHITE AND PUERTO
RICAN.  IT FURTHER SHOWS IT HAS A POPULATION OF 382,320 PEOPLE, OR
BETWEEN 15.4% AND 12% LESS THAN ANY OF THE ADJOINING DISTRICTS.  THE
18TH DISTRICT ENCOMPASSES A POPULATION THAT IS 86.3% NON-WHITE AND
PUERTO RICAN AND ONLY 13.7% WHITE.  ITS POPULATION OF 431,330 PEOPLE IS
12% MORE THAN THE 17TH AND 5% ABOVE THE STATE AVERAGE."  211 F. SUPP.
460, 472. 

FN2  IN FACT THE STATE IN ITS BRIEF IN THIS COURT CANDIDLY ASSERTS
"THAT A LEGISLATURE MAY 'CONSIDER' RACE IN DRAWING CONGRESSIONAL
DISTRICT LINES  ...  THAT THERE IS NO PER SE PROHIBITION AGAINST
CLASSIFICATIONS BY RACE." 
..END :

















UNITED STATES V. HEALY 376 U.S. 75 


NO. 64.  ARGUED JANUARY 6, 1964.  - DECIDED FEBRUARY 17, 1964.  -
REVERSED AND REMANDED. 


1.  AN INDICTMENT WAS DISMISSED BY THE DISTRICT COURT BEFORE TRIAL
BASED UPON THE CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT
WAS FOUNDED.  THE GOVERNMENT FILED NOTICE OF APPEAL WITHIN 30 DAYS OF
THE DENIAL OF THE PETITION FOR REHEARING, BUT MORE THAN 30 DAYS AFTER
THE ENTRY OF THE ORIGINAL JUDGMENT.  UNDER RULE 11(2) OF THIS COURT, A
CRIMINAL APPEAL FROM A DISTRICT COURT TO THIS COURT MUST BE FILED
WITHIN 30 DAYS AFTER ENTRY OF "THE JUDGMENT OR ORDER" APPEALED FROM,
AND APPELLEES CONTENDED THAT THE FILING OF A PETITION FOR REHEARING
WITHOUT AUTHORIZATION BY STATUTE OR RULE CANNOT EXTEND THE TIME FOR
APPEAL.  HELD:  THE TIMELY FILING OF A PETITION FOR A REHEARING IN A
CRIMINAL CASE, NO LESS THAN IN A CIVIL CASE, RENDERS THE JUDGMENT
NONFINAL FOR PURPOSES OF APPEAL UNTIL THE COURT DISPOSES OF THE
PETITION, AND IN SUCH AN INSTANCE THE 30-DAY PERIOD PRESCRIBED BY RULE
11(2) BEGINS TO RUN FROM THE DATE OF THE DENIAL OF THE PETITION FOR
REHEARING.  PP. 77-80. 

2.  APPELLEES WERE INDICTED UNDER TWO COUNTS FOR FORCING AT GUNPOINT
THE PILOT OF A PRIVATE AIRPLANE TO TRANSPORT THEM FROM FLORIDA TO
CUBA.  ONE COUNT, UNDER 18 U.S.C.  SEC 1201, FOR KIDNAPING, WAS
DISMISSED BY THE DISTRICT COURT ON THE GROUND THAT THE KIDNAPING WAS
NOT "FOR RANSOM OR REWARD OR OTHERWISE" UNLESS COMMITTED FOR THE
PECUNIARY BENEFIT OF THE DEFENDANT.  HELD:  THE STATUTE, AS GOOCH V.
UNITED STATES, 297 U.S. 124, PLAINLY HELD, IS NOT CONFINED TO
KIDNAPINGS FOR PECUNIARY GAIN; NOR NEED THE UNDERLYING PURPOSE FOR
WHICH THE KIDNAPING IS DONE BE AN ILLEGA ? ONE IN ORDER FOR THE STATUTE
TO APPLY.  PP. 81-82. 

3.  THE OTHER COUNT, UNDER SEC 902(I) OF THE FEDERAL AVIATION ACT OF
1958, AS AMENDED IN 1961, FOR "AIRCRAFT PIRACY," WAS DISMISSED BY THE
DISTRICT COURT ON THE GROUND THAT A PRIVATE AIRPLANE IS NOT "AN
AIRCRAFT IN FLIGHT IN AIR COMMERCE" WITHIN THE MEANING OF THE STATUTE. 
HELD:  BOTH THE LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE HISTORY
MANIFEST CONGRESSIONAL INTENT TO INCLUDE PRIVATE AIRCRAFT WITHIN THE
SCOPE OF SEC 902(I).  PP. 83085. 

UNITED STATES V. HEALY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

A FEDERAL GRAND JURY ALLEGED IN AN INDICTMENT, RETURNED IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, THAT ON
APRIL 13, 1962, THE APPELLEES HAD KIDNAPED AT GUNPOINT THE PILOT OF A
PRIVATE CESSNA 172 AIRPLANE AND COMPELLED HIM TO TRANSPORT THEM FROM
FLORIDA TO CUBA.  COUNT 1 OF THE INDICTMENT CHARGED APPELLEES WITH
HAVING VIOLATED 18 U.S.C. SEC 1201, (FN1) THE FEDERAL KIDNAPING ACT. 
UNDER COUNT 2, APPELLEES WERE CHARGED WITH THE COMMISSION OF "AIRCRAFT
PIRACY" IN CONTRAVENTION OF A 1961 AMENDMENT TO SEC 902 OF THE FEDERAL
AVIATION ACT OF 1958, 75 STAT. 466, 49 U.S.C.  (SUPP. IV) SEC 1472(I). 
(FN2) 

THE DISTRICT COURT DISMISSED THE INDICTMENT ON SEPTEMBER 17, 1962,
BEFORE TRIAL.  IT HELD THAT A KIDNAPING IS NOT "FOR RANSOM OR REWARD OR
OTHERWISE," AS REQUIRED BY SEC 1201(A), UNLESS COMMITTED FOR THE
PECUNIARY BENEFIT OF THE DEFENDANT AND THAT A PRIVATE AIRPLANE IS NOT
"AN AIRCRAFT IN FLIGHT IN AIR COMMERCE" WITHIN THE MEANING OF THE
AIRCRAFT PIRACY PROVISION, WHICH IT READ AS LIMITED TO COMMERCIAL
AIRLINERS.  THE GOVERNMENT'S PETITION FOR REHEARING, FILED OCTOBER 17,
WAS DENIED ON NOVEMBER 8.  ON DECEMBER 5, THE GOVERNMENT FILED A NOTICE
OF APPEAL TO THIS COURT UNDER 18 U.S.C. SEC 3731, PERMITTING DIRECT
APPEAL WHEN THE DISMISSAL OF AN INDICTMENT IS BASED ON CONSTRUCTION OF
THE STATUTE UPON WHICH THE INDICTMENT IS FOUNDED.  WE NOTED PROBABLE
JURISDICTION, 372 U.S. 963.  WE CONCLUDE THAT THE JUDGMENT OF DISMISSAL
MUST BE REVERSED. 

 I. 

APPELLEES CONTEND THAT THIS COURT IS WITHOUT JURISDICTION AND IS
THEREBY PRECLUDED FROM CONSIDERING THE CASE ON ITS MERITS.  THEY ARGUE
THAT, ABSENT AUTHORIZATION BY STATUTE OR RULE, THE FILING OF A PETITION
FOR REHEARING BY THE GOVERNMENT IN A CRIMINAL CASE CANNOT EXTEND THE
TIME FOR APPEAL.  RULE 11(2) OF THIS COURT PROVIDES: 

"AN APPEAL PERMITTED BY LAW FROM A DISTRICT COURT TO THIS COURT IN A
CRIMINAL CASE SHALL BE IN TIME WHEN THE NOTICE OF APPEAL PRESCRIBED BY
RULE 10 IS FILED WITH THE CLERK OF THE DISTRICT COURT WITHIN THIRTY
DAYS AFTER ENTRY OF THE JUDGMENT OR ORDER APPEALED FROM." 

IT IS UNDISPUTED THAT THE NOTICE OF APPEAL WAS FILED BY THE UNITED
STATES WITHIN 30 DAYS FROM THE DENIAL OF THE PETITION FOR REHEARING,
ALTHOUGH NOT WITHIN 30 DAYS OF THE ORIGINAL ENTRY OF JUDGMENT.   SINCE
THE PETITION FOR REHEARING WAS FILED WITHIN 30 DAYS OF THE JUDGMENT, WE
ARE NOT FACED WITH AN ATTEMPT TO REJUVENATE AN EXTINGUISHED RIGHT TO
APPEAL.  CF. ALLEGRUCCI V. UNITED STATES, 372 U.S. 954.  THE QUESTION,
THEREFORE, IS SIMPLY WHETHER IN A CRIMINAL CASE A TIMELY PETITION FOR
REHEARING BY THE GOVERNMENT FILED WITHIN THE PERMISSIBLE TIME FOR
APPEAL RENDERS THE JUDGMENT NOT FINAL FOR PURPOSES OF APPEAL UNTIL THE
COURT DISPOSES OF THE PETITION - IN OTHER WORDS WHETHER IN SUCH
CIRCUMSTANCES THE 30-DAY PERIOD PRESCRIBED BY RULE 11(2) BEGINS TO RUN
FROM THE DATE OF ENTRY OF JUDGMENT OR THE DENIAL OF THE PETITION FOR
REHEARING. 

THE LATTER IS THE WELL-ESTABLISHED RULE IN CIVIL CASES, WHETHER
BROUGHT HERE BY APPEAL OR CERTIORARI, E.G., UNITED STATES V. ELLICOTT,
223 U.S. 524, 539; MORSE V. UNITED STATES, 270 U.S. 151, 153-154;
BOWMAN V. LOPERENA, 311 U.S. 262, 264-266.  THAT A REHEARING PETITION,
AT LEAST WHEN FILED WITHIN THE ORIGINAL PERIOD FOR REVIEW, MAY ALSO
EXTEND THE TIME FOR FILING A PETITION FOR CERTIORARI BY A CRIMINAL
DEFENDANT IS THE UNARTICULATED PREMISE ON WHICH THE COURT HAS
CONSISTENTLY PROCEEDED.  SEE, E.G., PANICO V. UNITED STATES, 375 U.S.
29 (ORDER EXTENDING TIME FOR FILING ENTERED 19 DAYS AFTER DENIAL OF
PETITION FOR REHEARING EN BANC, 45 DAYS AFTER ORIGINAL JUDGMENT OF
COURT OF APPEALS); COREY V. UNITED STATES, 375 U.S. 169 (PETITION FOR
CERTIORARI FILED 30 DAYS AFTER DENIAL OF REHEARING, 45 DAYS AFTER
ORIGINAL JUDGMENT OF COURT OF APPEALS); GENOVESE V. UNITED STATES,
DECIDED WITH EVOLA V. UNITED STATES, 375 U.S. 32 (ORDER EXTENDING TIME
FOR FILING ENTERED 16 DAYS AFTER DENIAL OF REHEARING AND REHEARING EN
BANC, 49 DAYS AFTER ENTRY OF ORIGINAL JUDGMENT).  IN CRAIG V. UNITED
STATES, 298 U.S. 637, THIS COURT DISMISSED AN APPLICATION FOR A WRIT OF
CERTIORARI AS PREMATURE, "WITHOUT PREJUDICE TO A RENEWAL OF THE
APPLICATION WITHIN THIRTY DAYS AFTER ACTION BY THE CIRCUIT COURT OF
APPEALS ON THE PETITION FOR REHEARING."  THIS SUMMARY DISPOSITION
PLAINLY REFLECTS AN ADVERTENT DECISION THAT CRIMINAL JUDGMENTS ARE
NONFINAL FOR PURPOSES OF APPEAL SO LONG AS TIMELY REHEARING PETITIONS
ARE PENDING. 

WE HAVE RECENTLY RECOGNIZED THE APPROPRIATENESS OF PETITIONS FOR
REHEARING BY THE UNITED STATES IN CRIMINAL CASES, FORMAN V. UNITED
STATES, 361 U.S. 416, 425-426.  THE PRACTICE OF THE COURT HAS BEEN TO
TREAT SUCH PETITIONS AS HAVING THE SAME EFFECT ON THE PERMISSIBLE TIME
FOR SEEKING REVIEW AS DO SIMILAR PETITIONS IN CIVIL CASES AND IN
CRIMINAL CASES IN WHICH THE GOVERNMENT HAS WON BELOW.  UNITED STATES V.
WILLIAMS, 341 U.S. 58 (APPEAL FROM DISMISSAL OF INDICTMENT BY DISTRICT
COURT; NOTICE OF APPEAL FILED 29 DAYS AFTER DENIAL OF MOTION FOR
REHEARING, 44 DAYS AFTER ENTRY OF ORIGINAL ORDER); UNITED STATES V.
SMITH, 342 U.S. 225 (APPEAL FROM DISMISSAL OF INDICTMENT BY DISTRICT
COURT; NOTICE OF APPEAL FILED 28 DAYS AFTER DENIAL OF PETITION FOR
REHEARING, 109 DAYS AFTER ENTRY OF ORIGINAL ORDER); UNITED STATES V.
CALDERON, 348 U.S. 160 (PETITION FOR CERTIORARI FROM COURT OF APPEALS;
ORDER EXTENDING TIME FOR FILING ENTERED 28 DAYS AFTER DENIAL OF
REHEARING, 88 DAYS AFTER ENTRY OF ORIGINAL JUDGMENT). 

APPELLEES PLACE GREAT RELIANCE ON THE ABSENCE OF ANY STATUTE OR RULE
GOVERNING THE EFFECT OF REHEARING PETITIONS OF THE GOVERNMENT, BUT BOTH
THE CIVIL AND CRIMINAL PROCEDURAL DOCTRINES LACK SUCH A FOUNDATION. 
THE WORDING OF RULE 11(2) OF THIS COURT, AS UNILLUMINATING ON THIS
ISSUE AS IT MAY BE STANDING ALONE, IS VIRTUALLY IDENTICAL TO THAT OF
RULE 22(2), WHICH ENCOMPASSES PETITIONS FOR CERTIORARI BOTH BY CRIMINAL
DEFENDANTS AND THE GOVERNMENT.  THE INFERENCE IS COMPELLING THAT NO
DIFFERENCE IN TREATMENT IS INTENDED BETWEEN APPEALABLE JUDGMENTS AND
THOSE REVIEWABLE BY CERTIORARI, OR BETWEEN CRIMINAL DEFENDANTS AND THE
UNITED STATES.  WE ARE CONSTRAINED TO READ THESE RULES AS CONSISTENT
WITH A TRADITIONAL AND VIRTUALLY UNQUESTIONED PRACTICE. 

RULE 37(A)(2) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE (FN3) DOES
NOT ALTER THIS CONCLUSION, SINCE IT SHEDS NO LIGHT ON THE RELEVANCE OF
A PETITION FOR REHEARING.  NOR CAN THE PRINCIPLE OF STRICT CONSTRUCTION
OF STATUTES PERMITTING GOVERNMENTAL APPEALS IN CRIMINAL CASES, CARROLL
V. UNITED STATES, 354 U.S. 394, BE UTILIZED TO UNDERMINE A WELL
ESTABLISHED PROCEDURAL RULE FOR CRIMINAL, AS WELL AS CIVIL,
LITIGATION.  NO PERSUASIVE CONSIDERATIONS OF POLICY DICTATE A DEVIANT
STANDARD FOR GOVERNMENT APPEALS. 

OF COURSE SPEEDY DISPOSITION OF CRIMINAL CASES IS DESIRABLE, BUT TO
DEPRIVE THE GOVERNMENT OF THE OPPORTUNITY TO PETITION A LOWER COURT FOR
THE CORRECTION OF ERRORS MIGHT, IN SOME CIRCUMSTANCES, ACTUALLY PROLONG
THE PROCESS OF LITIGATION - SINCE PLENARY CONSIDERATION OF A QUESTION
OF LAW HERE ORDINARILY CONSUMES MORE TIME THAN DISPOSITION OF A
PETITION FOR REHEARING - AND COULD, IN SOME CASES, IMPOSE AN ADDED AND
UNNECESSARY BURDEN OF ADJUDICATION UPON THIS COURT.  (FN4)  IT WOULD BE
SENSELESS FOR THIS COURT TO PASS ON AN ISSUE WHILE A MOTION FOR
REHEARING IS PENDING BELOW, AND NO SIGNIFICANT SAVING OF TIME WOULD BE
ACHIEVED BY ALTERING THE ORDINARY RULE TO THE EXTENT OF COMPELLING A
NOTICE OF APPEAL TO BE FILED WHILE THE PETITION FOR REHEARING IS UNDER
CONSIDERATION. 

WE CONCLUDE THAT THIS APPEAL WAS TIMELY FILED AND THAT THE COURT HAS
JURISDICTION TO DETERMINE THE CASE ON ITS MERITS. 

                 II. 

BY INTERPRETING 18 U.S.C. SEC 1201 TO REQUIRE A MOTIVE OF PECUNIARY
PROFIT, THE DISTRICT COURT DISREGARDED THE PLAIN HOLDING OF GOOCH V.
UNITED STATES, 297 U.S. 124, IN WHICH THE DEFENDANT, WHO HAD SEIZED AND
CARRIED AWAY A STATE PEACE OFFICER ATTEMPTING TO EFFECTUATE HIS ARREST,
WAS HELD SUBJECT TO PROSECUTION UNDER THE STATUTE.  PRIOR TO A 1934
AMENDMENT, THE FEDERAL KIDNAPING ACT HAD BEEN APPLICABLE ONLY IF THE
PERSON TRANSPORTED WAS HELD FOR RANSOM OR REWARD.  THE WORDING WAS THEN
CHANGED TO ENCOMPASS PERSONS HELD "FOR RANSOM OR REWARD OR OTHERWISE,
EXCEPT, IN THE CASE OF A MINOR, BY A PARENT THEREOF," 48 STAT. 781. 
THE COURT IN GOOCH, NOTING THE AMBIGUITY OF THE WORD "REWARD," FOUND
CONVINCING EVIDENCE IN THE AMENDMENT'S LEGISLATIVE HISTORY THAT THE
ADDITION OF "OTHERWISE" WAS INTENDED TO MAKE CLEAR THAT A NONPECUNIARY
MOTIVE DID NOT PRECLUDE PROSECUTION UNDER THE STATUTE.  THE SENATE
JUDICIARY COMMITTEE, WHICH QUOTED FROM A MEMORANDUM OF THE JUSTICE
DEPARTMENT, AND THE HOUSE JUDICIARY COMMITTEE BOTH HAD REPORTED THAT
THE BILL WAS DESIGNED TO EXTEND FEDERAL JURISDICTION UNDER THE ACT TO
CASES OF PERSONS KIDNAPED AND HELD "NOT ONLY FOR REWARD, BUT FOR ANY
OTHER REASON."  (FN5)  THE COURT'S CONCLUSION THAT THE AMENDED STATUTE
COVERED THE FACTS BEFORE IT WAS CLEARLY IN ACCORD WITH THE
CONGRESSIONAL PURPOSE. 

THE COURTS OF APPEALS HAVE CONSISTENTLY FOLLOWED GOOCH, E.G., UNITED
STATES V. PARKER, 103 F. 2D 857; BROOKS V. UNITED STATES, 199 F. 2D
336; HAYES V. UNITED STATES, 296 F. 2D 657, AND APPELLEES DO NOT
CHALLENGE THE AUTHORITY OF THAT CASE.  WHILE RECOGNIZING THAT THE
STATUTE IS NOT LIMITED TO KIDNAPINGS FOR PECUNIARY GAIN, THEY ASSERT,
THAT IT IS RESTRICTED TO KIDNAPINGS FOR AN OTHERWISE ILLEGAL PURPOSE. 
THIS CONTENTION IS WITHOUT SUPPORT IN THE LANGUAGE OF THE PROVISION,
ITS LEGISLATIVE HISTORY, JUDICIAL DECISIONS, OR REASON.  THE WORDING
CERTAINLY SUGGESTS NO DISTINCTION BASED ON THE ULTIMATE PURPOSE OF A
KIDNAPING; WERE ONE INTENDED, THE EXCLUSION OF PARENT-CHILD KIDNAPINGS
WOULD HAVE BEEN LARGELY SUPERFLUOUS, SINCE SUCH CONDUCT IS RARELY THE
RESULT OF AN INTRINSICALLY ILLEGAL PURPOSE.  NOTHING IN THE REPORTS OR
DEBATES SUPPORTS APPELLEES' POSITION.  IN TWO CASES, WHEATLEY V. UNITED
STATES, 159 F. 2D 599, 600; BEARDEN V. UNITED STATES, 304 F. 2D 532),
COURTS OF APPEALS HAVE ASSUMED THAT THE APPLICABILITY OF THE STATUTE
DOES NOT TURN ON THE ILLEGALITY OF THE ULTIMATE PURPOSE OF THE
KIDNAPER.  NO POLICY CONSIDERATIONS SUPPORT APPELLEES' STRAINED READING
OF 18 U.S.C. SEC 1201.  A MURDER COMMITTED TO ACCELERATE THE ACCRUAL OF
ONE'S RIGHTFUL INHERITANCE IS HARDLY LESS HEINOUS THAN ONE COMMITTED TO
FACILITATE A THEFT; BY THE SAME TOKEN, WE FIND NO COMPELLING
CORRELATION BETWEEN THE PROPRIETY OF THE ULTIMATE PURPOSE SOUGHT TO BE
FURTHERED BY A KIDNAPING AND THE UNDESIRABILITY OF THE ACT OF KIDNAPING
ITSELF.  APPELLEES RELY ON THE PRINCIPLE OF STRICT CONSTRUCTION OF
PENAL STATUTES, (FN6) BUT THAT MAXIM IS HARDLY A DIRECTIVE TO THIS
COURT TO INVENT DISTINCTIONS NEITHER REFLECTIVE OF THE POLICY BEHIND
CONGRESSIONAL ENACTMENTS NOR INTIMATED BY THE WORDS USED TO IMPLEMENT
THE LEGISLATIVE GOAL.  (FN7) 

WE HOLD THAT THE DISTRICT COURT IMPROPERLY DISMISSED THE FIRST COUNT
OF THE INDICTMENT. 

                                 III. 

THE 1961 "AIRCRAFT PIRACY" AMENDMENT TO THE FEDERAL AVIATION ACT
MAKES IT A FEDERAL CRIME, INTER ALIA, TO EXERCISE CONTROL, BY THREAT OF
FORCE WITH WRONGFUL INTENT, OF "AN AIRCRAFT IN FLIGHT IN AIR COMMERCE,"
SEC 902(I), 75 STAT. 466, 49 U.S.C. (SUPP. IV) SEC 1472(I). 
EXAMINATION OF THE PROVISION ITSELF AND ITS RELATION TO THE REST OF THE
STATUTE, APART FROM REFERENCE TO THE LEGISLATIVE HISTORY, STANDS
AGAINST THE CONCLUSION OF THE COURT BELOW.  THE CESSNA 172 WAS "AN
AIRCRAFT"; IT WAS "IN FLIGHT"; IT WAS IN FLIGHT "IN AIR COMMERCE." 
APPELLEES ASSERT THAT HAD CONGRESS INTENDED TO INCLUDE PRIVATE
AIRPLANES IT COULD HAVE REFERRED TO "ANY AIRCRAFT," BUT, STANDING
ALONE, THE PHRASE "AN AIRCRAFT" IS ON ITS FACE AN ALL-INCLUSIVE TERM. 
APPELLEES' CONTENTION THAT THE STATUTORY LANGUAGE REFERS ONLY TO
COMMERCIAL AIRLINES IS CONTRADICTED BY THE DEFINITION OF AIR COMMERCE
IN THE ORIGINAL ACT, SEC 101 OF THE FEDERAL AVIATION ACT OF 1958, 72
STAT. 737, 49 U.S.C.  (SUPP. IV) SEC 1301: 

"(4)  'AIR COMMERCE' MEANS INTERSTATE, OVERSEAS, OR FOREIGN AIR
COMMERCE OR THE TRANSPORTATION OF MAIL BY AIRCRAFT OR ANY OPERATION OR
NAVIGATION OF AIRCRAFT WITHIN THE LIMITS OF ANY FEDERAL AIRWAY OR ANY
OPERATION OR NAVIGATION OF AIRCRAFT WHICH DIRECTLY AFFECTS, OR WHICH
MAY ENDANGER SAFETY IN, INTERSTATE, OVERSEAS, OR FOREIGN AIR
COMMERCE." 

WITHOUT QUESTION, THIS DEFINITION COVERS THE FACTS ALLEGED IN THE
INDICTMENT IN THIS CASE.  THAT THE RELATION BETWEEN THE LANGUAGE OF THE
"AIRCRAFT PIRACY" AMENDMENT AND THE ABOVE DEFINITION WAS NOT OVERLOOKED
BY THE DRAFTERS IS INDICATED BY THE DIFFERENT PHRASEOLOGY USED IN A
CONTEMPORANEOUS AMENDMENT CONCERNING CONCEALED WEAPONS.  SECTION 902(1)
OF THE AMENDED ACT, 75 STAT. 466, 49 U.S.C. (SUPP.IV) SEC 1472(1),
MAKES IT A CRIME TO CARRY SUCH A WEAPON "WHILE ABOARD AN AIRCRAFT BEING
OPERATED BY AN AIR CARRIER IN AIR TRANSPORTATION."  THUS CONGRESS KNEW
HOW TO CHOOSE WORDS TO REFER SOLELY TO COMMERCIAL AIRLINERS WHEN IT
WISHED TO DO SO.    THE CONCLUSIONS DRAWN FROM THE STATUTE ITSELF ARE
CONFIRMED BY THE LEGISLATIVE HISTORY.  THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE REPORTED, H.R. REP. NO. 958, 87TH
CONG., 1ST SESS., THAT THE TERM "AIR COMMERCE" WAS USED BY DESIGN
BECAUSE OF ITS BROAD SCOPE AS DEFINED IN EXISTING LAW, P. 8.  IT
SPECIFICALLY CITED "THE URGENT NEED FOR STRONGER FEDERAL LAWS
APPLICABLE TO CRIMINAL ACTS COMMITTED ABOARD COMMERCIAL AND PRIVATE
AIRCRAFT," P. 3, AND NOTED THAT THE SUBSECTION REGARDING WEAPONS "WOULD
BE LIMITED TO AIRCRAFT BEING USED IN AIR CARRIER COMMERCIAL OPERATIONS,
WHEREAS THESE OTHER SUBSECTIONS (INCLUDING THAT RELATING TO AIRCRAFT
PIRACY) WOULD APPLY ALSO IN THE CASE OF PRIVATE AIRCRAFT," P. 15. 

COMMENTS DURING HOUSE DEBATE ACCORD WITH THE COMMITTEE'S
UNDERSTANDING, SEE REMARKS OF CONGRESSMAN HARRIS (107 CONG. REC. 16545)
AND CONGRESSMAN WILLIAMS (107 CONG. REC.  16547-16548).  THE REMARKS OF
SENATOR ENGLE, THE SPONSOR OF THE AIRCRAFT PIRACY PROVISIONS IN THE
SENATE, DURING DEBATE ARE EXPLICIT:  "YES; IT APPLIES TO ALL AIRPLANES
IN AIR COMMERCE, WHICH INCLUDES, OF COURSE, NOT ONLY COMMERCIAL
AIRCRAFT, BUT PRIVATE AIRPLANES AS WELL."  (107 CONG. REC. 15243).  THE
STATEMENTS OF MEMBERS OF CONGRESS EVINCING A CONCERN FOR THE PROTECTION
OF PASSENGERS ABOARD COMMERCIAL AIRLINES, SEE, E.G., REMARKS OF
CONGRESSMAN ROSTENKOWSKI (107 CONG. REC. 16552), DO NOT REFLECT ANY
INTENT TO PUT PRIVATE AIRCRAFT BEYOND THE SCOPE OF THE PROVISION. 
INDEED, SINCE ONE OF THE OFTEN-EXPRESSED PURPOSES OF THE AIRCRAFT
PIRACY AMENDMENT WAS TO PROVIDE A SOLUTION TO THE JURISDICTIONAL
PROBLEMS INVOLVED IN FIXING A LOCUS FOR A CRIME COMMITED IN TRANSIT AND
IN ARRESTING A DEPLANING PASSENGER WHO MAY HAVE ENGAGED IN CRIMINAL
ACTIVITY OVER THE TERRITORY OF A DIFFERENT STATE, SEE, E.G., H.R. REP.
NO. 958, 87TH CONG., 1ST SESS., PP. 3-5, ONE WOULD SUPPOSE, ABSENT ANY
OTHER EVIDENCE, A DESIGN TO INCLUDE PRIVATE AIRCRAFT; THESE PROBLEMS
ARE AS PERTINENT TO ACTS COMMITTED ABOARD THEM AS TO THOSE DONE ON
COMMERICAL AIRLINERS.  FINDING THAT THE PLAINLY EXPRESSED INTENT OF
CONGRESS, AS MANIFESTED BOTH IN THE STATUTORY LANGUAGE AND LEGISLATIVE
HISTORY, WAS TO INCLUDE PRIVATE AIRCRAFT WITHIN THE SCOPE OF SEC
902(I), WE CONCLUDE THAT DISMISSAL OF THE SECOND COUNT OF THE
INDICTMENT WAS ALSO INCORRECT. 

THE JUDGMENT BELOW IS REVERSED AND THE CASE IS REMANDED TO THE
DISTRICT COURT WITH INSTRUCTIONS TO REINSTATE BOTH COUNTS OF THE
INDICTMENT.  IT IS SO ORDERED. 

FN1  "(A)  WHOEVER KNOWINGLY TRANSPORTS IN INTERSTATE OR FOREIGN
COMMERCE, ANY PERSON WHO HAS BEEN UNLAWFULLY SEIZED, CONFINED,
INVEIGLED, DECOYED, KIDNAPED, ABDUCTED, OR CARRIED AWAY AND HELD FOR
RANSOM OR REWARD OR OTHERWISE, EXCEPT, IN THE CASE OF A MINOR, BY A
PARENT THEREOF, SHALL BE PUNISHED  ...  ." 

FN2  "(1)  WHOEVER COMMITS OR ATTEMPTS TO COMMIT AIRCRAFT PIRACY, AS
HEREIN DEFINED, SHALL BE PUNISHED  ...  . 

"(2)  AS USED IN THIS SUBSECTION, THE TERM 'AIRCRAFT PIRACY' MEANS
ANY SEIZURE OR EXERCISE OF CONTROL, BY FORCE OR VIOLENCE OR THREAT OF
FORCE OR VIOLENCE AND WITH WRONGFUL INTENT, OF AN AIRCRAFT IN FLIGHT IN
AIR COMMERCE." 

FN3  "TIME FOR TAKING APPEAL.  AN APPEAL BY A DEFENDANT MAY BE TAKEN
WITHIN 10 DAYS AFTER ENTRY OF THE JUDGMENT OR ORDER APPEALED FROM, BUT
IF A MOTION FOR A NEW TRIAL OR IN ARREST OF JUDGMENT HAS BEEN MADE
WITHIN THE 10-DAY PERIOD AN APPEAL FROM A JUDGMENT OF CONVICTION MAY BE
TAKEN WITHIN 10 DAYS AFTER ENTRY OF THE ORDER DENYING THE MOTION.  WHEN
A COURT AFTER TRIAL IMPOSES SENTENCE UPON A DEFENDANT NOT REPRESENTED
BY COUNSEL, THE DEFENDANT SHALL BE ADVISED OF HIS RIGHT TO APPEAL AND
IF HE SO REQUESTS, THE CLERK SHALL PREPARE AND FILE FORTHWITH A NOTICE
OF APPEAL ON BEHALF OF THE DEFENDANT.  AN APPEAL BY THE GOVERNMENT WHEN
AUTHORIZED BY STATUTE MAY BE TAKEN WITHIN 30 DAYS AFTER ENTRY OF THE
JUDGMENT OR ORDER APPEALED FROM." 

FN4  IN THIS CASE, THE RECORD AND LEGAL ISSUES PLAINLY INDICATE THE
GOOD FAITH OF THE GOVERNMENT IN PETITIONING FOR REHEARING.  WE WOULD,
OF COURSE, NOT COUNTENANCE THE UNITED STATES' USING SUCH PETITIONS
SIMPLY AS A DELAYING TACTIC IN CRIMINAL LITIGATION; THERE IS, HOWEVER,
NOT THE SLIGHTEST BASIS FOR BELIEVING THAT IT WOULD TRY TO DO SO. 

FN5  S. REP. NO. 534, 73D CONG., 2D SESS., MAR. 20, 1934; H.R. REP.
NO. 1457, 73D CONG., 2D SESS., MAY 3, 1934, P. 2. 

FN6  CHATWIN V. UNITED STATES, 326 U.S. 455, WHICH INVOLVED THE
TRANSPORTING OF A GIRL TO MAINTAIN A "CELESTIAL" MARRIAGE, IS
INAPPOSITE.  THERE THE ELEMENT OF COERCION OR DECEPTION, CENTRAL TO THE
CRIME OF KIDNAPING, WAS ABSENT. 

FN7  OUR DISPOSITION OF THIS ISSUE RELIEVES US FROM CONSIDERING
WHETHER APPELLEES' ULTIMATE PURPOSE WAS UNLAWFUL AND, IF SO, WHETHER
ILLEGALITY OF PURPOSE, IF NOT OBVIOUS, IS A NECESSARY ELEMENT IN THE
INDICTMENT.  HOWEVER, IT MAY BE OBSERVED THAT A TRIP TO CUBA WOULD HAVE
BEEN LAWFUL ONLY IF APPELLEES HAD HAD PASSPORTS SPECIFICALLY ENDORSED
FOR TRAVEL TO CUBA.  SEE PRESIDENTIAL PROCLAMATIONS NO. 2914, DEC. 16,
1950 (64 STAT.  A454); AND NO. 3004, JAN. 17, 1953 (67 STAT. C31); SEC
215 OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163, 190,
8 U.S.C. SEC 1185; DEPARTMENT OF STATE PUBLIC NOTICE 179, 26 FED. REG.
492, JAN. 16, 1961.  APPELLEES, WITHOUT CLAIMING LAWFULNESS OF PURPOSE,
ARGUE THAT THE BURDEN OF SHOWING THAT THEY HAD NOT COMPLIED WITH THE
REGULATIONS GOVERNING TRAVEL TO CUBA RESTS WITH THE UNITED STATES AND
THAT NONCOMPLIANCE HAS TO BE SPECIFICALLY ALLEGED IN AN INDICTMENT. 

THE DISCUSSION CONCERNING THE LEGALITY OF TRAVEL TO CUBA POINTS UP
HOW UNTENABLE IS APPELLEES' BASIC POSITION.  IT WOULD SURELY BE
ANOMALOUS WERE APPLICATION OF THE KIDNAPING ACT MADE TO TURN ON WHETHER
EXISTING REGULATIONS PERMIT TRAVEL TO THE POINT OF DESTINATION WITHOUT
A PASSPORT, WITH AN ORDINARY PASSPORT, OR ONLY WITH A PASSPORT
SPECIALLY ENDORSED. 
..END :
















U.S. V. WIESENFELD WAREHOUSE CO. 376 U.S. 86 


NO. 92.  ARGUED JANUARY 16, 1964.  - DECIDED FEBRUARY 17, 1964.  - 217
F. SUPP. 638, REVERSED AND REMANDED. 


APPELLEE, A PUBLIC STORAGE WAREHOUSEMAN, WAS CHARGED BY CRIMINAL
INFORMATION WITH VIOLATIONS OF SEC 301(K) OF THE FEDERAL FOOD, DRUG,
AND COSMETIC ACT, WHICH PROHIBITS ACTS INVOLVING DEFACEMENT OF LABELS
OF FOOD AND OTHER SPECIFIED ARTICLES HELD FOR SALE AFTER INTERSTATE
SHIPMENT AND THE "DOING OF ANY OTHER ACT" WITH RESPECT TO SUCH ARTICLES
WHICH RESULTS IN THEIR BEING ADULTERATED OR MISBRANDED.  UNDER SEC
402(A)(4) ADULTERATION IS DEFINED TO INCLUDE HOLDING FOOD UNDER
INSANITARY CONDITIONS WHEREBY IT MAY HAVE BEEN CONTAMINATED WITH
FILTH.  THE DISTRICT COURT, CONSTRUING THE STATUTE UNDER THE RULE OF
EJUSDEM GENERIS AS APPLYING ONLY TO ACTS OF THE SAME GENERAL NATURE AS
THOSE SPECIFICALLY ENUMERATED WITH RESPECT TO LABEL-DEFACING AND AS
BEING TOO VAGUE TO INCLUDE THE MERE "HOLDING" OF ARTICLES, DISMISSED
THE INFORMATION FOR FAILURE TO STATE AN OFFENSE.  HELD: 

1.  SECTION 301(K), AS IS CLEAR FROM ITS WORDING AND LEGISLATIVE
HISTORY, DEFINES TWO DISTINCT OFFENSES - ONE CONCERNING LABEL-DEFACING
AND THE OTHER CONCERNING ADULTERATION; AND THE CRIMINAL INFORMATION
PROPERLY CHARGED AN OFFENSE FOR ADULTERATION UNDER THE ACT.  PP. 89
92. 

2.  SECTION 301(K) IS NOT LIMITED TO ONE HOLDING TITLE TO GOODS AND
THEREFORE APPLIES TO A PUBLIC STORAGE WAREHOUSEMAN WHETHER HE OWNS THE
GOODS STORED OR NOT.  P. 92. 

UNITED STATES V. WIESENFELD WAREHOUSE CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF FLORIDA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE "ALTERATION, MUTILATION, DESTRUCTION, OBLITERATION, OR REMOVAL OF
THE WHOLE OR ANY PART OF THE LABELING OF, OR THE DOING OF ANY OTHER ACT
WITH RESPECT TO, A FOOD, DRUG, DEVICE, OR COSMETIC, IF SUCH ACT IS DONE
WHILE SUCH ARTICLE IS HELD FOR SALE  ...  AFTER SHIPMENT IN INTERSTATE
COMMERCE AND RESULTS IN SUCH ARTICLE BEING ADULTERATED OR MISBRANDED." 
(FN1)  SECTION 402 OF THE ACT PROVIDES, AMONG OTHER THINGS, THAT "A
FOOD SHALL BE DEEMED TO BE ADULTERATED - (A)  ...  (3)  IF IT CONSISTS
IN WHOLE OR IN PART OF ANY FILTHY, PUTRID, OR DECOMPOSED SUBSTANCE, OR
IF IT IS OTHERWISE UNFIT FOR FOOD; OR (4) IF IT HAS BEEN PREPARED,
PACKED, OR HELD UNDER INSANITARY CONDITIONS WHEREBY IT MAY HAVE BECOME
CONTAMINATED WITH FILTH, OR WHEREBY IT MAY HAVE BEEN RENDERED INJURIOUS
TO HEALTH  ...  ."  (FN2)  THE QUESTION PRESENTED BY THIS APPEAL IS
WHETHER A CRIMINAL INFORMATION WHICH ALLEGES THE HOLDING OF FOOD BY A
PUBLIC STORAGE WAREHOUSEMAN (AFTER INTERSTATE SHIPMENT AND BEFORE
ULTIMATE SALE) UNDER UNSANITARY CONDITIONS IN A BUILDING ACCESSIBLE TO
RODENTS, BIRDS AND INSECTS, WHERE IT MAY HAVE BECOME CONTAMINATED WITH
FILTH, CHARGES AN OFFENSE UNDER SEC 301(K). 

THE GOVERNMENT FILED A CRIMINAL INFORMATION CONTAINING ALLEGATIONS TO
THIS EFFECT (FN3) IN THE DISTRICT COURT FOR THE MIDDLE DISTRICT OF
FLORIDA, CHARGING THE APPELLEE, A PUBLIC STORAGE WAREHOUSEMAN, WITH
VIOLATIONS OF SEC 301(K).  THE COURT CONSTRUED SEC 301(K) AS NOT
APPLYING TO THE MERE ACT OF "HOLDING" GOODS, AND DISMISSED THE
INFORMATION FOR FAILURE TO ALLEGE AN OFFENSE UNDER THE STATUTE.  217 F.
SUPP. 638, 639.  THE ORDER OF DISMISSAL WAS APPEALED BY THE GOVERNMENT
UNDER THE CRIMINAL APPEALS ACT, WHICH GIVES THIS COURT JURISDICTION TO
REVIEW ON DIRECT APPEAL A JUDGMENT DISMISSING AN INFORMATION ON THE
BASIS OF A "CONSTRUCTION OF THE STATUTE UPON WHICH THE  ... INFORMATION
IS FOUNDED."  (FN4)  WE NOTED PROBABLE JURISDICTION.  373 U.S. 921. 
FOR THE REASONS WHICH FOLLOW, WE REVERSE THE JUDGMENT OF THE DISTRICT
COURT. 

IN ARRIVING AT ITS CONSTRUCTION OF THE STATUTE, THE DISTRICT COURT
REASONED THAT SEC 301(K) "AS IT IS PRESENTLY WRITTEN, IS TOO VAGUE AND
INDEFINITE TO APPLY TO THE MERE ACT OF 'HOLDING' GOODS."  217 F. SUPP.,
AT 639.  ACCORDINGLY, "IN AN EFFORT TO UPHOLD THE STATUTE AS
CONSTITUTIONAL," THE COURT APPLIED THE RULE OF EJUSDEM GENERIS TO LIMIT
THE WORDS "THE DOING OF ANY OTHER ACT" IN SEC 301(K) TO ACTS OF "THE
SAME GENERAL NATURE" AS THOSE SPECIFICALLY ENUMERATED IN THE
SUBSECTION, I.E., ACTS RELATING TO THE ALTERATION, MUTILATION,
DESTRUCTION, OBLITERATION, OR REMOVAL OF THE LABELING OF ARTICLES. 
IBID.  WE FIND SUCH RELIANCE ON THE RULE OF EJUSDEM GENERIS MISPLACED;
ITS APPLICATION TO SEC 301(K) IS CONTRARY TO BOTH THE TEXT AND
LEGISLATIVE HISTORY OF THE SUBSECTION, AND UNNECESSARY TO A
CONSTITUTIONALLY PERMISSIBLE CONSTRUCTION OF THE STATUTE. 

THE LANGUAGE OF SEC 301(K) UNAMBIGUOUSLY DEFINES TWO DISTINCT
OFFENSES WITH RESPECT TO FOOD HELD FOR SALE AFTER INTERSTATE SHIPMENT. 
AS ORIGINALLY ENACTED IN 1938, THE SUBSECTION PROHIBITED "THE
ALTERATION, MUTILATION, DESTRUCTION, OBLITERATION, OR REMOVAL" OF THE
LABEL, OR "THE DOING OF ANY OTHER ACT" WITH RESPECT TO THE PRODUCT
WHICH "RESULTS IN SUCH ARTICLE BEING MISBRANDED."  (FN5)  THE SECTION
WAS AMENDED IN 1948 TO PROHIBIT ADDITIONALLY "THE DOING OF ANY OTHER
ACT" WITH RESPECT TO THE PRODUCT WHICH "RESULTS IN SUCH ARTICLE BEING
ADULTERATED."  (FN6)  THE ACTS SPECIFICALLY ENUMERATED IN THE ORIGINAL
ENACTMENT RELATE TO THE OFFENSE OF MISBRANDING THROUGH LABELING OR THE
LACK THEREOF.  THE SEPARATE OFFENSE OF ADULTERATION, ON THE OTHER HAND,
IS CONCERNED SOLELY WITH DETERIORATION OR CONTAMINATION OF THE
COMMODITY ITSELF.  FOR THE MOST PART, ACTS RESULTING IN MISBRANDING AND
ACTS RESULTING IN ADULTERATION ARE WHOLLY DISTINCT.  CONSEQUENTLY,
SINCE THE ENUMERATED LABEL-DEFACING OFFENSES BEAR NO TEXTUAL OR LOGICAL
RELATION TO THE SCOPE OF THE GENERAL LANGUAGE CONDEMNING ACTS OF
PRODUCT ADULTERATION, (FN7) APPLICATION OF THE RULE OF EJUSDEM GENERIS
TO LIMIT THE WORDS "THE DOING OF ANY OTHER ACT" RESULTING IN PRODUCT
ADULTERATION IN SEC 301(K) TO ACTS OF THE SAME GENERAL CHARACTER AS
THOSE SPECIFICALLY ENUMERATED WITH RESPECT TO MISBRANDING IS WHOLLY
INAPPROPRIATE. 

MOREOVER, THE LEGISLATIVE HISTORY MAKES PLAIN THAT NO SUCH
APPLICATION OF THE RULE WAS INTENDED.  AS THE HOUSE COMMITTEE REPORT ON
THE PROPOSED 1949 AMENDMENT UNEQUIVOCALLY STATED: 

"IT SEEMS CLEAR THAT UNDER THE SUBSECTION AS NOW IN FORCE THE RULE OF
EJUSDEM GENERIS WOULD NOT APPLY IN INTERPRETING THE WORDS 'OR THE DOING
OF ANY OTHER ACT  ...  ,' AND IT IS EVEN MORE CLEAR THAT THIS RULE WILL
NOT APPLY IN THE INTERPRETATION OF THE SUBSECTION AS AMENDED BY THIS
BILL."  (FN8) 

IT IS EQUALLY CLEAR FROM THIS LEGISLATIVE HISTORY THAT CONGRESS
INTENDED TO PROSCRIBE THE PARTICULAR CONDUCT CHARGED IN THE INFORMATION
FILED BELOW - THE HOLDING OF FOOD UNDER INSANITARY CONDITIONS WHEREBY
IT MAY HAVE BECOME CONTAMINATED.  THE HOUSE COMMITTEE REPORT NOTED THAT
THE AMENDED SECTION WOULD "PENALIZE, AMONG OTHER ACTS RESULTING IN
ADULTERATION OR MISBRANDING, THE ACT OF HOLDING ARTICLES UNDER
INSANITARY CONDITIONS WHEREBY THEY MAY BECOME CONTAMINATED WITH FILTH
OR RENDERED INJURIOUS TO HEALTH," AND EMPHASIZED THAT THE COMMITTEE
INTENDED THE AMENDMENTS TO BE APPLIED TO THEIR FULLEST CONSTITUTIONAL
LIMITS.  (FN9) 

CONGRESS CHOSE STATUTORY LANGUAGE APPROPRIATE TO EFFECTUATE THIS
PURPOSE.  SECTION 301(K) AS AMENDED, PROHIBITS "ANY  ...  ACT" WHICH
RESULTS IN ADULTERATION OF THE PRODUCT.  AND FOOD IS ADULTERATED IF IT
"HAS BEEN PREPARED, PACKED, OR HELD UNDER INSANITARY CONDITIONS WHEREBY
IT MAY HAVE BECOME CONTAMINATED WITH FILTH."  (FN10)  THIS LANGUAGE
DEFINES WITH PARTICULARITY AN EXPLICIT STANDARD OF CONDUCT.  SECTION
301(K), READ TOGETHER WITH THE DEFINITION OF FOOD ADULTERATION
CONTAINED IN SEC 402(A)(4), THEREFORE, GIVES AMPLE WARNING THAT THE
"HOLDING" OR STORING OF FOOD UNDER INSANITARY CONDITIONS WHEREBY IT MAY
HAVE BECOME CONTIMINATED IS PROHIBITED. 

IT IS SETTLED LAW IN THE AREA OF FOOD AND DRUG REGULATION THAT A
GUILTY INTENT IS NOT ALWAYS A PREREQUISITE TO THE IMPOSITION OF
CRIMINAL SANCTIONS.  FOOD AND DRUG LEGISLATION, CONCERNED AS IT IS WITH
PROTECTING THE LIVES AND HEALTH OF HUMAN BEINGS, UNDER CIRCUMSTANCES IN
WHICH THEY MIGHT BE UNABLE TO PROTECT THEMSELVES, OFTEN "DISPENSES WITH
THE CONVENTIONAL REQUIREMENT FOR CRIMINAL CONDUCT - AWARENESS OF SOME
WRONGDOING.  IN THE INTEREST OF THE LARGER GOOD IT PUTS THE BURDEN OF
ACTING AT HAZARD UPON A PERSON OTHERWISE INNOCENT BUT STANDING IN
RESPONSIBLE RELATION TO A PUBLIC DANGER.  UNITED STATES V. BALINT, 258
U.S. 250."  UNITED STATES V. DOTTERWEICH, 320 U.S. 277, 281. 

IT IS ARGUED, NEVERTHELESS, THAT THE GOVERNMENT IN THIS CASE IS
SEEKING  IMPOSE CRIMINAL SANCTIONS UPON ONE "WHO IS, BY THE VERY NATURE
OF HIS BUSINESS POWERLESS" TO PROTECT AGAINST THIS KIND OF
CONTAMINATION, HOWEVER HIGH THE STANDARD OF CARE EXERCISED.  WHATEVER
THE TRUTH OF THIS CLAIM, IT INVOLVES FACTUAL PROOF TO BE RAISED
DEFENSIVELY AT A TRIAL ON THE MERITS.  WE ARE HERE CONCERNED ONLY WITH
THE CONSTRUCTION OF THE STATUTE AS IT RELATES TO THE SUFFICIENCY OF THE
INFORMATION, AND NOT WITH THE SCOPE AND REACH OF THE STATUTE AS APPLIED
TO SUCH FACTS AS MAY BE DEVELOPED BY EVIDENCE ADDUCED AT A TRIAL. 

FINALLY, THE APPELLEE ATTEMPTS TO UPHOLD THE DISMISSAL OF THE
INFORMATION ON A GROUND NOT RELIED ON BY THE DISTRICT COURT.  THE
APPELLEE SAYS THAT IT WAS A BAILEE OF THE FOOD, NOT A SELLER, AND THAT
IT WAS NOT HOLDING THE FOOD FOR SALE WITHIN THE MEANING OF SEC 301(K). 
BOTH THE LANGUAGE AND THE PURPOSE OF THE STATUTE REFUTE THIS
CONSTRUCTION.  THE LANGUAGE OF SEC 301(K) DOES NOT LIMIT ITS
APPLICATION TO ONE HOLDING TITLE TO THE GOODS, AND SINCE THE DANGER TO
THE PUBLIC FROM INSANITARY STORAGE OF FOOD IS THE SAME REGARDLESS OF
THE PROPRIETARY STATUS OF THE PERSON STORING IT, THE PURPOSE OF THE
LEGISLATION - TO SAFEGUARD THE CONSUMER FROM THE TIME THE FOOD IS
INTRODUCED INTO THE CHANNELS OF INTERSTATE COMMERCE TO THE POINT THAT
IT IS DELIVERED TO THE ULTIMATE CONSUMER - WOULD BE SUBSTANTIALLY
THWARTED BY SUCH AN UNWARRANTED READING OF THE STATUTORY LANGUAGE. 
UNITED STATES V.  KOCMOND, 200 F. 2D 370, 372; CF. UNITED STATES V.
SULLIVAN, 332 U.S. 689, 696; UNITED STATES V. DOTTERWEICH, 320 U.S.
277, 282. 

ACCORDINGLY, WE HOLD THAT A CRIMINAL INFORMATION CHARGING A PUBLIC
STORAGE WAREHOUSEMAN WITH HOLDING FOOD (AFTER INTERSTATE SHIPMENT AND
BEFORE ULTIMATE SALE) UNDER INSANITARY CONDITIONS WHEREBY IT MAY HAVE
BECOME CONTAMINATED WITH FILTH, CHARGES AN OFFENSE UNDER SEC 301(K) OF
THE FEDERAL FOOD, DRUG, AND COSMETIC ACT.  THE ORDER OF THE DISTRICT
COURT DISMISSING THE INFORMATION IS THEREFORE REVERSED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  52 STAT. 1040, 21 U.S.C. SEC 331(K). 

FN2  52 STAT. 1040, 21 U.S.C. SECS 342(A)(3) AND (4). 

FN3  THE INFORMATION WAS IN SIX COUNTS, DIFFERING ONLY WITH RESPECT
TO THE PARTICULAR SHIPMENT OR PRODUCT INVOLVED.  EACH COUNT CHARGED
THAT APPELLEE HAD RECEIVED AN ARTICLE OF FOOD WHICH HAD BEEN SHIPPED IN
INTERSTATE COMMERCE, AND THAT WHILE THIS FOOD WAS BEING HELD FOR SALE,
APPELLEE CAUSED IT TO BE HELD IN A BUILDING ACCESSIBLE TO RODENTS,
BIRDS, AND INSECTS, THUS EXPOSING IT TO CONTIMINATION, AND THEREBY
ADULTERATING THE FOOD WITHIN THE MEANING OF SEC 402(A) OF THE ACT, 21
U.S.C. SEC 342(A), IN THAT THE FOOD CONSISTED IN PART OF A FILTHY
SUBSTANCE, TO WIT, RODENT EXCRETA, INSECT LARVAE, ETC., AND IN THAT IT
WAS HELD UNDER INSANITARY CONDITIONS WHEREBY IT MIGHT HAVE BECOME
CONTAMINATED WITH FILTH. 

FN4  "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  ...  ."  62 STAT.
844, 18 U.S.C. SEC 3731. 

FN5  52 STAT. 1042, 21 U.S.C. SEC 331(K).  SEE UNITED STATES V.
SULLIVAN, 332 U.S. 689. 

FN6  62 STAT. 582, 21 U.S.C. SEC 331(K). 

FN7  THE HOUSE COMMITTEE CONCERNED WITH THE PROPOSED AMENDMENT TO SEC
301(K) WAS AWARE OF THIS TEXTUAL PROBLEM. 

"THE PRESENT SECTION 301(K) FORBIDS, FIRST, CERTAIN ACTS WITH RESPECT
TO THE LABELING OF AN ARTICLE, AND, SECOND, 'ANY OTHER ACT WITH RESPECT
TO' THE ARTICLE ITSELF WHICH RESULTS IN ITS BEING MISBRANDED  ...  .
ADULTERATION MORE OFTEN OCCURS AS A RESULT OF ACTS DONE TO OR WITH
RESPECT TO THE ARTICLE ITSELF.  SINCE THE SECTION ALREADY CONTAINS THE
BROAD PHRASE 'ANY OTHER ACT WITH RESPECT TO' THE ARTICLE, AND SINCE
THIS PHRASE IS NOT LIMITED BY THE PRECEDING ENUMERATION OF FORBIDDEN
ACTS WITH RESPECT TO THE LABELING, THERE IS NO NEED IN MAKING IT
APPLICABLE TO ADULTERATION, TO CHANGE THE EXISTING STATUTORY LANGUAGE
IN THIS REGARD."  H.R. REP. NO. 807, 80TH CONG., 1ST SESS., P. 3. 

FN8  ID., AT PP. 3-4. 

FN9  ID., AT P. 6.  DURING THE SENATE HEARINGS ON THE AMENDMENT, THE
ASSOCIATE COMMISSIONER OF FOOD AND DRUGS EXPLAINED THAT "UNDER THE BILL
AS ENACTED HERE, IF THERE WAS A DEFINITE SHOWING OF VIOLATION ON THE
PART OF THE WAREHOUSE WHICH HAD THIS MATERIAL STORED, A PROSECUTION OF
THEM CRIMINALLY FOR DOING THE ACT OF HOLDING UNDER THESE INSANITARY
CONDITIONS, WHICH RESULT IN ADULTERATION COULD ENSUE."  HEARING BEFORE
A SUBCOMMITTEE OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
UNITED STATES SENATE, ON S. 1190 AND H.R. 4071, 80TH CONG., 2D SESS.,
APRIL 17, 1948. 

FN10  SEE NOTE 2, SUPRA.
..END :







SOUTHERN RAILWAY CO. V. NORTH CAROLINA 376 U.S. 93 


NO. 74.  ARGUED JANUARY 14-15, 1964.  - DECIDED FEBRUARY 17, 1964.* -
210 F. SUPP. 675, REVERSED. 

*TOGETHER WITH NO. 93, UNITED STATES ET AL. V. NORTH CAROLINA ET AL.,
ALSO ON APPEAL TO THE SAME COURT. 


THE INTERSTATE COMMERCE COMMISSION UNDER SEC 13A(2) OF THE INTERSTATE
COMMERCE ACT AUTHORIZED APPELLANT RAILWAY COMPANY TO DISCONTINUE TWO
INTRASTATE PASSENGER TRAINS, WHICH PROVIDED THE LAST REMAINING RAILWAY
PASSENGER SERVICE BETWEEN TWO CITIES, HAVING FOUND THAT THE SERVICE
CONSTITUTED AN UNDUE BURDEN ON INTERSTATE COMMERCE AND THAT THE PRESENT
OR FUTURE PUBLIC CONVENIENCE AND NECESSITY PERMITTED DISCONTINUANCE OF
THE SERVICE.  A THREE-JUDGE DISTRICT COURT SET ASIDE THE COMMISSION'S
ORDER ON THE GROUND THAT THE COMMISSION HAD APPLIED ERRONEOUS LEGAL
STANDARDS BY NOT TAKING PROPER ACCOUNT OF THE FREIGHT PROFITS ON THE
LINE AND THE OVERALL PROSPERITY OF THE CARRIER.  HELD: 

1. UNDER SEC 13A(2) THE COMMISSION NEED NOT GIVE EFFECT TO THE
PROSPERITY OF THE INTRASTATE OPERATIONS OF THE CARRIER AS A WHOLE OR
ANY PARTICULAR SEGMENT THEREOF IN DETERMINING WHETHER THE OPERATION OF
A SPECIFIC INTRASTATE TRAIN OR SERVICE IMPOSES AN UNJUST OR UNDUE
BURDEN ON INTERSTATE COMMERCE.  P. 104. 

2.  THE COMMISSION MAY PROPERLY GIVE VARYING WEIGHTS TO THE OVERALL
PROSPERITY OF THE CARRIER IN DIFFERENT SITUATIONS, BALANCING PUBLIC
CONVENIENCE AND NECESSITY AGAINST UNDUE BURDENS ON INTERSTATE
COMMERCE.  COLORADO V. UNITED STATES, 271 U.S. 153.  WHERE THE DEMANDS
OF PUBLIC CONVENIENCE AND NECESSITY ARE SLIGHT, AS IN THIS CASE, IT IS
PROPER UNDER SEC 13A(2) FOR THE COMMISSION IN DETERMINING THE EXISTENCE
OF A BURDEN ON INTERSTATE COMMERCE TO GIVE LITTLE WEIGHT TO THE
CARRIER'S OVERALL PROSPERITY.  PP. 104-105. 

SOUTHERN RAILWAY CO. V. NORTH CAROLINA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF NORTH CAROLINA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1959 THE APPELLANT SOUTHERN RAILWAY COMPANY FILED A PETITION WITH
THE NORTH CAROLINA UTILITIES COMMISSION FOR AN ORDER PERMITTING IT TO
DISCONTINUE OPERATION OF TWO INTRASTATE PASSENGER TRAINS BETWEEN
GREENSBORO AND GOLDSBORO, NORTH CAROLINA, A DISTANCE OF ABOUT 130
MILES.  THE TRAINS IN QUESTION ARE NO. 16, WHICH OPERATES EASTBOUND IN
THE MORNING FROM GREENSBORO TO GOLDSBORO, AND NO. 13, CONSISTING OF THE
SAME EQUIPMENT, WHICH OPERATES WESTBOUND IN THE LATE AFTERNOON.  SINCE
1958 THESE TWO TRAINS HAVE PROVIDED THE LAST REMAINING RAILWAY
PASSENGER SERVICE BETWEEN THE TWO COMMUNITIES.  THE STATE COMMISSION
DENIED THE PETITION, AND ITS DECISION WAS UPHELD BY THE NORTH CAROLINA
SUPREME COURT.  STATE OF NORTH CAROLINA V. SOUTHERN RAILWAY CO., 254
N.C. 73, 118 S.E.2D 21 (1961). 

THEREAFTER THE RAILWAY COMPANY FILED A PETITION WITH THE INTERSTATE
COMMERCE COMMISSION PURSUANT TO SEC 13A(2) OF THE INTERSTATE COMMERCE
ACT, (FN1) SEEKING AUTHORITY TO DISCONTINUE OPERATION OF THE TRAINS. 
AFTER A HEARING AT WHICH SEVERAL PROTESTANTS, INCLUDING THE STATE OF
NORTH CAROLINA, APPEARED, THE EXAMINER RECOMMENDED THAT THE PETITION BE
GRANTED.  DIVISION 3 OF THE COMMISSION AGREED WITH THE EXAMINER AND
ORDERED DISCONTINUANCE OF THE TRAINS.  THE DIVISION ISSUED A REPORT IN
WHICH IT FOUND, INTER ALIA, THAT THE TRAINS, WHICH IN 1948 HAD CARRIED
56,739 PASSENGERS, CARRIED ONLY 14,776 PASSENGERS IN 1960, THE LAST
FULL YEAR FOR WHICH FIGURES WERE AVAILABLE; THAT THE DIRECT EXPENSES OF
OPERATING THE TRAINS DURING THE LATTER YEAR WERE OVER THREE TIMES THEIR
TOTAL REVENUE; THAT DISCONTINUANCE OF THE TRAINS WOULD RESULT IN
SAVINGS OF AT LEAST $90,589 PER YEAR; THAT THE NEED SHOWN FOR THESE
TRAINS WAS RELATIVELY INSBUSTANTIAL WHEN VIEWED IN LIGHT OF THE DENSITY
OF THE POPULATION OF THE AREA SERVED; THAT EXISTING ALTERNATE
TRANSPORTATION SERVICE BY RAIL, BUS, AIRLINE, AND OTHER MEANS WAS
REASONABLY ADEQUATE; AND THAT THE DISCONTINUANCE OF THE PASSENGER TRAIN
SERVICE WOULD NOT SERIOUSLY AFFECT THE INDUSTRIAL GROWTH OF THE AREA. 
AGAINST THE BACKGROUND OF THESE FINDINGS, THE EXAMINER AND COMMISSION
CONSIDERED, BUT GAVE "LITTLE OR NO WEIGHT" TO THE OVERALL PROSPERITY OF
THE CARRIER.  THE COMMISSION'S BASIC CONCLUSIONS WERE SUMMED UP AS
FOLLOWS: 

"THAT THE PUBLIC WILL NOT BE MATERIALLY INCONVENIENCED BY THE
DISCONTINUANCE OF THE SERVICE HERE INVOLVED; THAT THE SAVINGS TO BE
REALIZED BY THE CARRIER OUTWEIGH THE INCONVENIENCE TO WHICH THE PUBLIC
MAY BE SUBJECTED BY SUCH DISCONTINUANCE; THAT SUCH SAVINGS WILL ENABLE
THE CARRIER MORE EFFICIENTLY TO PROVIDE TRANSPORTATION SERVICE TO THE
PUBLIC WHICH REMAINS IN SUBSTANTIAL DEMAND; AND THAT THE CONTINUED
OPERATION OF TRAINS NOS. 13 AND 16 WOULD CONSTITUTE A WASTEFUL SERVICE
AND WOULD IMPOSE AN UNDUE BURDEN ON INTERSTATE COMMERCE."  317 I.C.C.
255, 260. 

AFTER A PETITION FOR RECONSIDERATION BY THE ENTIRE COMMISSION HAD
BEEN DENIED, THE PROTESTANTS INSTITUTED AN ACTION IN A THREE-JUDGE
DISTRICT COURT SEEKING TO SET ASIDE THE ORDER OF THE COMMISSION.  THE
COURT HELD, FIRST, THAT IT WAS ERRONEOUS AS A MATTER OF LAW FOR THE
COMMISSION TO ORDER DISCONTINUANCE OF PASSENGER TRAINS UNDER THE
PROVISIONS OF SEC 13A(2) WITHOUT FIRST DETERMINING WHETHER, ONCE THE
PROFITS FROM FREIGHT OPERATIONS ON THE SAME LINE WERE TAKEN INTO
ACCOUNT, "THE PARTICULAR SEGMENT OF THE RAILWAY INVOLVED IS
CONTRIBUTING ITS FAIR SHARE TO THE OVER-ALL COMPANY OPERATIONS  ...
."  210 F. SUPP.  675, 688.  THE COURT ALSO PROCEEDED TO FIND, INTER
ALIA, THAT "TAKING INTO ACCOUNT TOTAL OPERATION OF THIS LINE, THERE IS
A PROFIT NOT A LOSS, A BENEFIT, NOT A BURDEN," 210 F. SUPP., AT 688;
THAT PASSENGER TRAFFIC HAD SLIGHTLY INCREASED DURING THE FIRST FIVE
MONTHS OF 1961; THAT THE CARRIER HAD DONE LITTLE TO PROMOTE THE USE OF
THE PASSENGER TRAINS; THAT CONTINUED EXISTENCE OF THE ALTERNATIVE OF
RAILWAY PASSENGER SERVICE MIGHT BE CONSIDERED A NECESSITY UNDER SUCH
CIRCUMSTANCES AS AIRLINE STRIKES OR BAD WEATHER; AND THAT, IN LIGHT OF
THE OVERALL PROSPERITY OF THE SOUTHERN RAILWAY COMPANY, "THE EFFECT OF
THE LOSSES OF THE GREENSBORO-GOLDSBORO PASSENGER SERVICE ON THE
FINANCIAL STRUCTURE OF THE RAILROAD IS INCONSEQUENTIAL."  (FN2)  210 F.
SUPP., AT 688.  ON THIS BASIS, ALTHOUGH IT EXPLICITLY REFUSED TO SET
ASIDE ANY OF THE SUBSIDIARY FINDINGS OF FACT ON WHICH THE COMMISSION'S
ORDER WAS BASED, 210 F. SUPP., AT 689, 690, THE COURT HELD THAT "THE
ULTIMATE CONCLUSIONS OF THE INTERSTATE COMMERCE COMMISSION THAT THE
SERVICE IN QUESTION CONSTITUTES AN UNDUE BURDEN ON INTERSTATE COMMERCE
AND THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY PERMITS
SUCH DISCONTINUANCE  ...  ARE ARBITRARY AND CAPRICIOUS BECAUSE  ...
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE," 210 F. SUPP., AT 689.   THE
COURT ITSELF THEN CONCLUDED THAT DISCONTINUANCE WAS NOT WARRANTED.  IT
THEREFORE SET ASIDE THE COMMISSION'S ORDER, AND PERPETUALLY ENJOINED
THE CARRIER FROM DISCONTINUING THE GREENSBORO-GOLDSBORO PASSENGER
TRAINS.  THE UNITED STATES, THE INTERSTATE COMMERCE COMMISSION, AND THE
CARRIER ALL APPEALED.  WE NOTED PROBABLE JURISDICTION AND CONSOLIDATED
THE CASES FOR ARGUMENT.  373 U.S. 907. 

THE DISTRICT COURT'S ACTION IN SETTING ASIDE THE COMMISSION'S
CONCLUSIONS AS TO PUBLIC CONVENIENCE AND NECESSITY AND UNDUE BURDEN ON
INTERSTATE COMMERCE WAS EXPLICITLY BASED UPON THE COURT'S VIEW THAT THE
COMMISSION HAD APPLIED ERRONEOUS LEGAL STANDARDS IN REACHING THOSE
CONCLUSIONS.  THE COURT DID NOT QUESTION THAT THE COMMISSION'S
SUBSIDIARY FINDINGS OF FACT WERE SUPPORTED BY A SUBSTANTIAL EVIDENTIARY
FOUNDATION.  IT SIMPLY DISAGREED WITH THE COMMISSION AS TO THE KIND OF
EVIDENCE REQUIRED TO SUPPORT AN ORDER PERMITTING DISCONTINUANCE OF AN
INTRASTATE PASSENGER TRAIN UNDER SEC 13A(2). 

THE COURT REACHED ITS CONCLUSION THAT THE COMMISSION HAD ERRED IN NOT
TAKING INTO ACCOUNT PROFITS FROM FREIGHT OPERATIONS ALONG THE
GREENSBORO-GOLDSBORO LINE PRIMARILY IN RELIANCE UPON THIS COURT'S
DECISIONS IN PUBLIC SERVICE COMM'N OF UTAH V. UNITED STATES, 356 U.S.
421, AND CHICAGO, M., ST. P.&P.R. CO. V. ILLINOIS, 355 U.S. 300.  BOTH
THOSE CASES DEALT WITH SEC 13(4), WHICH REQUIRES THE COMMISSION TO
CHANGE INTRASTATE RATES WHEREVER SUCH RATES ARE FOUND TO DISCRIMINATE
AGAINST INTERSTATE COMMERCE.  THIS COURT HELD IN THOSE CASES THAT THE
COMMISSION COULD NOT AUTHORIZE HIGHER INTRASTATE RATES EITHER FOR
PASSENGER OR FREIGHT OPERATIONS WITHOUT FIRST TAKING INTO ACCOUNT THE
REVENUES DERIVED BY THE CARRIER FROM THE TOTALITY OF INTRASTATE
OPERATIONS.  IN 1958, THE YEAR IN WHICH SEC 13A(2) WAS ENACTED, SEC
13(4) WAS AMENDED TO PERMIT THE COMMISSION TO ACT "WITHOUT A SEPARATION
OF INTERSTATE AND INTRASTATE PROPERTY, REVENUES, AND EXPENSES, AND
WITHOUT CONSIDERING IN TOTALITY THE OPERATIONS OR RESULTS THEREOF OF
ANY CARRIER  ...  WHOLLY WITHIN ANY STATE."  (FN3) THE DISTRICT COURT'S
HOLDING THAT THE SAME KIND OF DATA SHOULD BE CONSIDERED IN SEC 13A(2)
PROCEEDINGS WAS PREMISED UPON THE FACT THAT NO LANGUAGE SIMILAR TO THAT
OF THE SEC 13(4) AMENDMENT WAS INCLUDED IN SEC 13A(2), AND THAT
PROCEEDINGS UNDER THE LATTER PROVISION, WHICH PERMITS DISCONTINUANCE OF
GIVEN OPERATIONS, HAVE A FAR MORE SERIOUS IMPACT UPON INTRASTATE
PASSENGERS THAN PROCEEDINGS UNDER THE FORMER, WHICH PROVIDES ONLY FOR
AN INCREASE IN THE RATES TO BE CHARGED. 

BUT WHEN SEC 13(4) WAS AMENDED IN 1958 AS A RESULT OF THE TWO
DECISIONS RELIED ON BY THE DISTRICT COURT, CONGRESS WAS SIMPLY
REAFFIRMING WHAT IT CONCEIVED AS THE ORIGINAL INTENT OF THE SECTION. 
(FN4)  THERE IS THEREFORE NO REASON TO ASSUME THAT CONGRESS REGARDED
THE NEW LANGUAGE AS EMBODYING A STANDARD WHICH HAD TO BE SPECIFICALLY
INCORPORATED INTO EVERY STATUTORY PROVISION TO WHICH IT WAS INTENDED TO
APPLY. 

THE LEGISLATIVE HISTORY CLEARLY INDICATES THAT CONGRESS IN ENACTING
SEC 13A(2) WAS ADDRESSING ITSELF TO A PROBLEM QUITE DISTINCT FROM THAT
REFLECTED BY OVERALL UNPROFITABLE OPERATION OF AN ENTIRE SEGMENT OF
RAILROAD LINE.  THE COMMISSION ALREADY HAD AUTHORITY PRIOR TO 1958,
UNDER SECS 1(18)-(20), (FN5) TO AUTHORIZE DISCONTINUANCE OF ALL
SERVICES ON ANY GIVEN INTRASTATE LINE WHERE CONTINUANCE OF SUCH
SERVICES WOULD IMPOSE AN UNDUE BURDEN ON INTERSTATE COMMERCE.  COLORADO
V. UNITED STATES, 271 U.S. 153.  HOWEVER, THE COMMISSION TOTALLY LACKED
POWER TO DISCONTINUE PARTICULAR TRAINS OR SERVICES WHILE LEAVING THE
REMAINING SERVICES IN OPERATION.  IT WAS PRECISELY THIS GAP WHICH SEC
13A(2) WAS INTENDED TO FILL.  NEW JERSEY V. NEW YORK, S. & W.R. CO.,
372 U.S. 1, 5-6.  AS BOTH THE HOUSE AND SENATE COMMITTEE REPORTS ON THE
LEGISLATION WHICH BECAME SEC 13A(2) MAKE CLEAR, CONGRESS WAS PRIMARILY
CONCERNED WITH THE PROBLEMS POSED BY PASSENGER SERVICES FOR WHICH
SIGNIFICANT PUBLIC DEMAND NO LONGER EXISTED AND WHICH WERE CONSISTENTLY
DEFICIT-PRODUCING, THUS FORCING THE CARRIERS TO SUBSIDIZE THEIR
OPERATION OUT OF FREIGHT PROFITS.  (FN6)  FAR FROM PERMITTING THE
CARRIER'S NEED FOR DISCONTINUANCE OF PASSENGER SERVICES TO BE BALANCED
AGAINST PROFITS FROM OTHER OPERATIONS CONDUCTED ALONG THE SAME LINE,
THE BILL AS ORIGINALLY REPORTED BY THE SENATE COMMITTEE WOULD HAVE
REQUIRED THE COMMISSION TO PERMIT DISCONTINUANCE, EVEN IF THERE WAS
GREAT PUBLIC NEED FOR THE SERVICE, SO LONG AS THE CONTINUED OPERATION
OF A PARTICULAR SERVICE WOULD RESULT IN A NET LOSS TO THE CARRIER. 
(FN7)  SENATOR JAVITS UNSUCCESSFULLY ATTEMPTED TO AMEND THE BILL ON THE
FLOOR OF THE SENATE TO DELETE THE NET LOSS STANDARD AND TO SUBSTITUTE A
REQUIREMENT THAT THE COMMISSION BALANCE THE PUBLIC NEED FOR THE SERVICE
AGAINST THE DEFICIT RESULTING FROM IT.  (FN8)  SUCH AN AMENDMENT,
PROPOSED BY CHAIRMAN HARRIS OF THE HOUSE INTERSTATE AND FOREIGN
COMMERCE COMMITTEE, WAS ADOPTED BY THE HOUSE, (FN9) AND ACCEPTED BY THE
SENATE IN CONFERENCE.  THE DELETION OF THE NET LOSS STANDARD, HOWEVER,
BY NO MEANS IMPLIED THAT FREIGHT PROFITS ALONG A GIVEN LINE COULD BE
OFFSET AGAINST DEFICITS INCURRED BY PASSENGER SERVICES FOR PURPOSES OF
DETERMINING WHETHER THE LATTER CONSTITUTED AN UNDUE BURDEN ON
INTERSTATE OPERATIONS OR COMMERCE.  AS CONGRESSMAN HARRIS MADE CLEAR
AFTER HIS AMENDMENT HAD BEEN ACCEPTED, THE SITUATION "WE ARE TRYING TO
GET AT" IS THAT IN WHICH "THE FREIGHT SHIPPERS OF THIS COUNTRY ARE
MAKING UP A DEFICIT EVERY YEAR  ...  IN LOSSES IN PASSENGER SERVICE." 
(FN10) 

THE BILL AS ORIGINALLY REPORTED BY THE SENATE COMMITTEE WOULD HAVE
APPLIED THE NET LOSS STANDARD TO BOTH INTERSTATE AND INTRASTATE
OPERATIONS, THE COMMITTEE REPORT HAVING CONCLUDED THAT STATE REGULATORY
BODIES REQUIRED "THE MAINTENANCE OF UNECONOMIC AND UNNECESSARY SERVICES
AND FACILITIES."  (FN11)  THE BILL WAS AMENDED ON THE SENATE FLOOR TO
LIMIT THE COMMISSION'S DISCONTINUANCE AUTHORITY TO INTERSTATE TRAINS,
(FN12) AND THE HOUSE VERSION OF THE BILL WAS SIMILARLY LIMITED.  (FN13)
IN CONFERENCE, HOWEVER, THE COMMISSION'S AUTHORITY OVER INTRASTATE
TRAINS WAS RESTORED AND, EXCEPT FOR DIFFERENCES IN THE PROCEDURES
PREREQUISITE TO A HEARING IN THE CASE OF A WHOLLY INTRASTATE TRAIN,
(FN14) THE COMMISSION WAS REQUIRED TO APPLY THE SAME STANDARD TO
INTERSTATE AND INTRASTATE OPERATIONS IN DETERMINING WHETHER
DISCONTINUANCE OF A TRAIN OR SERVICE IS JUSTIFIED.  (FN15) CONTRARY TO
THE SUGGESTION OF THE DISTRICT COURT THAT ITS INTERPRETATION OF SEC
13A(2) MUST BE ACCEPTED TO AVOID "REQUIRING THE INTRASTATE OPERATIONS
TO BEAR MORE THAN THEIR SHARE," 210 F. SUPP., AT 680, THE STATUTORY
SCHEME WHICH CONGRESS HAS EMBODIED IN SEC 13A THUS PRESCRIBES PRECISELY
THE SAME SUBSTANTIVE STANDARD TO GOVERN DISCONTINUANCE OF EITHER
INTERSTATE OR INTRASTATE OPERATIONS.  (FN16) 

ALL THAT NEED PROPERLY BE CONSIDERED UNDER THIS STANDARD, AS BOTH THE
LANGUAGE AND HISTORY OF SEC 13A(2) THUS MAKE ABUNDANTLY CLEAR, IS WHAT
EFFECT THE DISCONTINUANCE OF THE SPECIFIC TRAIN OR SERVICE IN QUESTION
WILL HAVE UPON THE PUBLIC CONVENIENCE AND NECESSITY AND UPON INTERSTATE
OPERATIONS OR COMMERCE.  AS THE COMMISSION HAS CORRECTLY SUMMED UP THE
MATTER IN ANOTHER CASE: 

"THE BURDEN (UPON THE CARRIER'S INTERSTATE OPERATIONS OR UPON
INTERSTATE COMMERCE, AS EXPRESSED IN SECTION 13A(2))  ...  IS TO BE
MEASURED BY THE INJURIOUS EFFECT THAT THE CONTINUED OPERATION OF THE
TRAIN PROPOSED FOR DISCONTINUANCE WOULD HAVE UPON INTERSTATE COMMERCE. 
AS IS INDICATED BY ITS LEGISLATIVE HISTORY, THE PURPOSE OF SECTION
13A(2) IS TO PERMIT THE DISCONTINUANCE OF THE OPERATION OF SERVICES
THAT 'NO LONGER PAY THEIR WAY AND FOR WHICH THERE IS NO LONGER
SUFFICIENT PUBLIC NEED TO JUSTIFY THE HEAVY FINANCIAL LOSSES
INVOLVED.'  (S. REP. 1647, 85TH CONG.).  NOWHERE IN SECTION 13A(2) OR
ELSEWHERE IN THE LAW IS THERE ANY REQUIREMENT THAT THE PROSPERITY OF
THE INTRASTATE OPERATIONS OF THE CARRIER AS A WHOLE, OR ANY PARTICULAR
SEGMENT THEREOF, MUST BE GIVEN EFFECT IN DETERMINING WHETHER THE
OPERATION OF AN INDIVIDUAL INTRASTATE TRAIN IMPOSES AN UNJUST AND UNDUE
BURDEN ON INTERSTATE COMMERCE.  TO HOLD OTHERWISE WOULD BE CONTRARY TO
THE APPARENT INTENT OF THE CONGRESS."  SOUTHERN PAC. CO., PARTIAL
DISCONTINUANCE, 312 I.C.C.  631, 633-634 (1961).    THIS COURT HAS LONG
RECOGNIZED THAT THE COMMISSION MAY PROPERLY GIVE VARYING WEIGHTS TO THE
OVERALL PROSPERITY OF THE CARRIER IN DIFFERING SITUATIONS.  THUS, IN
COLORADO V. UNITED STATES, 271 U.S. 153, WHICH ALSO INVOLVED A
SITUATION IN WHICH THE COMMISSION WAS REQUIRED TO BALANCE PUBLIC
CONVENIENCE AND NECESSITY AGAINST UNDUE BURDENS ON INTERSTATE COMMERCE,
IT WAS SPECIFICALLY NOTED THAT "IN MANY CASES, IT IS CLEAR THAT THE
EXTENT OF THE WHOLE TRAFFIC, THE DEGREE OF DEPENDENCE OF THE
COMMUNITIES DIRECTLY AFFECTED UPON THE PARTICULAR MEANS OF
TRANSPORTATION, AND OTHER ATTENDANT CONDITIONS, ARE SUCH THAT THE
CARRIER MAY NOT JUSTLY BE REQUIRED TO CONTINUE TO BEAR THE FINANCIAL
LOSS NECESSARILY ENTAILED BY OPERATION.  IN SOME CASES  ...  THE
QUESTION IS WHETHER ABANDONMENT MAY JUSTLY BE PERMITTED, IN VIEW OF THE
FACT THAT IT WOULD SUBJECT THE COMMUNITIES DIRECTLY AFFECTED TO SERIOUS
INJURY WHILE CONTINUED OPERATION WOULD IMPOSE A RELATIVELY LIGHT BURDEN
UPON A PROSPEROUS CARRIER."  271 U.S., AT 168-169.  IN CASES FALLING
WITHIN THE LATTER CATEGORY, SUCH AS THOSE INVOLVING VITAL COMMUTER
SERVICES IN LARGE METROPOLITAN AREAS WHERE THE DEMANDS OF PUBLIC
CONVENIENCE AND NECESSITY ARE LARGE, IT IS OF COURSE OBVIOUS THAT THE
COMMISSION WOULD ERR IF IT DID NOT GIVE GREAT WEIGHT TO THE ABILITY OF
THE CARRIER TO ABSORB EVEN LARGE DEFICITS RESULTING FROM SUCH
SERVICES.  BUT WHERE, AS HERE, THE COMMISSION'S FINDINGS MAKE CLEAR
THAT THE DEMANDS OF PUBLIC CONVENIENCE AND NECESSITY ARE SLIGHT AND
THAT THE SITUATION IS, THEREFORE, ONE FALLING WITHIN THE FIRST CATEGORY
DELINEATED IN COLORADO, IT IS EQUALLY PROPER FOR THE COMMISSION, IN
DETERMINING THE EXISTENCE OF THE BURDEN ON INTERSTATE COMMERCE, TO GIVE
LITTLE WEIGHT TO THE FACTOR OF THE CARRIER'S OVERALL PROSPERITY. 

WHATEVER ROOM THERE MAY BE FOR DIFFERING VIEWS AS TO THE WISDOM OF
THE POLICY REFLECTED IN SEC 13A(2), IT IS THE DUTY OF THE COMMISSION TO
EFFECTUATE THE STATUTORY SCHEME.  WE CANNOT AGREE WITH THE DISTRICT
COURT THAT THE COMMISSION DEPARTED IN ANY RESPECT FROM THAT DUTY HERE. 
WE THEREFORE REVERSE THE JUDGMENT OF THE DISTRICT COURT AND REMAND WITH
INSTRUCTIONS TO REINSTATE THE REPORT AND ORDER OF THE COMMISSION. 
REVERSED. 

FN1  SECTION 13A(2) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC
13A(2), PROVIDES IN PERTINENT PART: 

"WHERE THE DISCONTINUANCE OR CHANGE, IN WHOLE OR IN PART, BY A
CARRIER OR CARRIERS SUBJECT TO THIS CHAPTER, OF THE OPERATION OR
SERVICE OF ANY TRAIN OR FERRY OPERATED WHOLLY WITHIN THE BOUNDARIES OF
A SINGLE STATE IS PROHIBITED BY THE CONSTITUTION OR STATUTES OF ANY
STATE OR WHERE THE STATE AUTHORITY HAVING JURISDICTION THEREOF SHALL
HAVE DENIED AN APPLICATION OR PETITION DULY FILED WITH IT BY SAID
CARRIER OR CARRIERS FOR AUTHORITY TO DISCONTINUE OR CHANGE, IN WHOLE OR
IN PART, THE OPERATION OR SERVICE OF ANY SUCH TRAIN OR FERRY OR SHALL
NOT HAVE ACTED FINALLY ON SUCH AN APPLICATION OR PETITION WITHIN ONE
HUNDRED AND TWENTY DAYS FROM THE PRESENTATION THEREOF, SUCH CARRIER OR
CARRIERS MAY PETITION THE COMMISSION FOR AUTHORITY TO EFFECT SUCH
DISCONTINUANCE OR CHANGE.  THE COMMISSION MAY GRANT SUCH AUTHORITY ONLY
AFTER FULL HEARING AND UPON FINDINGS BY IT THAT (A) THE PRESENT OR
FUTURE PUBLIC CONVENIENCE AND NECESSITY PERMIT OF SUCH DISCONTINUANCE
OR CHANGE, IN WHOLE OR IN PART, OF THE OPERATION OR SERVICE OF SUCH
TRAIN OR FERRY, AND (B) THE CONTINUED OPERATION OR SERVICE OF SUCH
TRAIN OR FERRY WITHOUT DISCONTINUANCE OR CHANGE, IN WHOLE OR IN PART,
WILL CONSTITUTE AN UNJUST AND UNDUE BURDEN UPON THE INTERSTATE
OPERATIONS OF SUCH CARRIER OR CARRIERS OR UPON INTERSTATE COMMERCE. 
WHEN ANY PETITION SHALL BE FILED WITH THE COMMISSION UNDER THE
PROVISIONS OF THIS PARAGRAPH THE COMMISSION SHALL NOTIFY THE GOVERNOR
OF THE STATE IN WHICH SUCH TRAIN OR FERRY IS OPERATED AT LEAST THIRTY
DAYS IN ADVANCE OF THE HEARING PROVIDED FOR IN THIS PARAGRAPH, AND SUCH
HEARING SHALL BE HELD BY THE COMMISSION IN THE STATE IN WHICH SUCH
TRAIN OR FERRY IS OPERATED; AND THE COMMISSION IS AUTHORIZED TO AVAIL
ITSELF OF THE COOPERATION, SERVICES, RECORDS AND FACILITIES OF THE
AUTHORITIES IN SUCH STATE IN THE PERFORMANCE OF ITS FUNCTIONS UNDER
THIS PARAGRAPH." 

FN2  IT SHOULD BE NOTED, IN CONNECTION WITH THE FINDINGS MADE BY THE
DISTRICT COURT, THAT THE COMMISSION HAD NOTED THAT THE INCREASE IN
PASSENGER TRAFFIC DURING 1961 WAS LARGELY DUE TO GROUP MOVEMENTS OF
SCHOOL CHILDREN; THAT, AS TO SOUTHERN'S FAILURE TO SEEK PASSENGERS,
"PROSPECTIVE PATRONS WHO MUST BE COAXED TO USE A SERVICE HAVE NO URGENT
NEED FOR IT"; AND THAT, AFTER A BROAD STUDY AND INVESTIGATION IN 1959,
THE COMMISSION HAD CONCLUDED THAT "PUBLIC CONVENIENCE AND NECESSITY"
DOES NOT REQUIRE THE MAINTENANCE OF DEFICIT PASSENGER SERVICES AS A
STANDBY SERVICE FOR TRAVELERS WHO CUSTOMARILY TRAVEL BY HIGHWAY OR BY
AIR.  RAILROAD PASSENGER TRAIN DEFICIT, 306 I.C.C. 417, 482. 

FN3  49 U.S.C. SEC 13(4), AS SO AMENDED, PROVIDES IN PERTINENT PART: 

"WHENEVER IN ANY SUCH  INVESTIGATION THE COMMISSION, AFTER FULL
HEARING, FINDS THAT ANY SUCH RATE, FARE, CHARGE, CLASSIFICATION,
REGULATION, OR PRACTICE CAUSES ANY UNDUE OR UNREASONABLE ADVANTAGE,
PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS OR LOCALITIES IN INTRASTATE
COMMERCE ON THE ONE HAND AND INTERSTATE OR FOREIGN COMMERCE ON THE
OTHER HAND, OR ANY UNDUE, UNREASONABLE, OR UNJUST DISCRIMINATION
AGAINST, OR UNDUE BURDEN ON, INTERSTATE OR FOREIGN COMMERCE (WHICH THE
COMMISSION MAY FIND WITHOUT A SEPARATION OF INTERSTATE AND INTRASTATE
PROPERTY, REVENUES, AND EXPENSES, AND WITHOUT CONSIDERING IN TOTALITY
THE OPERATIONS OR RESULTS THEREOF OF ANY CARRIER, OR GROUP OR GROUPS OF
CARRIERS WHOLLY WITHIN ANY STATE), WHICH IS HEREBY FORBIDDEN AND
DECLARED TO BE UNLAWFUL, IT SHALL PRESCRIBE THE RATE, FARE, OR CHARGE,
OR THE MAXIMUM OR MINIMUM, OR MAXIMUM AND MINIMUM, THEREAFTER TO BE
CHARGED, AND THE CLASSIFICATION, REGULATION, OR PRACTICE THEREAFTER TO
BE OBSERVED, IN SUCH MANNER AS, IN ITS JUDGMENT, WILL REMOVE SUCH
ADVANTAGE, PREFERENCE, PREJUDICE, DISCRIMINATION, OR BURDEN  ...  ." 

FN4  "IT IS THE POSSIBLE INTERPRETATION OF THESE RECENT COURT
DECISIONS THAT WOULD CREATE A CHANGE IN THE PRESENT REGULATORY
SCHEME."  H.R. REP. NO. 2274, 85TH CONG., 2D SESS., 12. 

FN5  49 U.S.C. SEC 1(18) PROVIDES IN PERTINENT PART: 

"NO CARRIER BY RAILROAD SUBJECT TO THIS CHAPTER SHALL UNDERTAKE THE
EXTENSION OF ITS LINE OF RAILROAD, OR THE CONSTRUCTION OF A NEW LINE OF
RAILROAD, OR SHALL ACQUIRE OR OPERATE ANY LINE OF RAILROAD, OR
EXTENSION THEREOF, OR SHALL ENGAGE IN TRANSPORTATION UNDER THIS CHAPTER
OVER OR BY MEANS OF SUCH ADDITIONAL OR EXTENDED LINE OF RAILROAD,
UNLESS AND UNTIL THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE
COMMISSION A CERTIFICATE THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE
AND NECESSITY REQUIRE OR WILL REQUIRE THE CONSTRUCTION, OR OPERATION,
OR CONSTRUCTION AND OPERATION, OF SUCH ADDITIONAL OR EXTENDED LINE OF
RAILROAD, AND NO CARRIER BY RAILROAD SUBJECT TO THIS CHAPTER SHALL
ABANDON ALL OR ANY PORTION OF A LINE OF RAILROAD, OR THE OPERATION
THEREOF, UNLESS AND UNTIL THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE
COMMISSION A CERTIFICATE THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE
AND NECESSITY PERMIT OF SUCH ABANDONMENT." 

49 U.S.C. SEC 1(19) PROVIDES IN PERTINENT PART: 

"THE APPLICATION FOR AND ISSUANCE OF ANY SUCH CERTIFICATE SHALL BE
UNDER SUCH RULES AND REGULATIONS AS TO HEARINGS AND OTHER MATTERS AS
THE COMMISSION MAY FROM TIME TO TIME PRESCRIBE, AND THE PROVISIONS OF
THIS CHAPTER SHALL APPLY TO ALL SUCH PROCEEDINGS." 

49 U.S.C. SEC 1(20) PROVIDES IN PERTINENT PART: 

"THE COMMISSION SHALL HAVE POWER TO ISSUE SUCH CERTIFICATE AS PRAYED
FOR, OR TO REFUSE TO ISSUE IT, OR TO ISSUE IT FOR A PORTION OR PORTIONS
OF A LINE OF RAILROAD, OR EXTENTION THEREOF, DESCRIBED IN THE
APPLICATION, OR FOR THE PARTIAL EXERCISE ONLY OF SUCH RIGHT OR
PRIVILEGE, AND MAY ATTACH TO THE ISSUANCE OF THE CERTIFICATE SUCH TERMS
AND CONDITIONS AS IN ITS JUDGMENT THE PUBLIC CONVENIENCE AND NECESSITY
MAY REQUIRE." 

FN6  "A MAJOR CAUSE OF THE WORSENING SITUATION IS THE UNSATISFACTORY
PASSENGER SITUATION.  NOT ONLY IS THE PASSENGER END OF THE BUSINESS NOT
MAKING MONEY - IT IS LOSING A SUBSTANTIAL PORTION OF THAT PRODUCED BY
FREIGHT OPERATIONS. 

     *         *         *         *         * 

"IT IS OBVIOUS THAT IN VERY GREAT MEASURE THESE PASSENGER LOSSES ARE
ATTRIBUTABLE TO COMMUTER SERVICE  ...  .  IT IS UNREASONABLE TO EXPECT
THAT SUCH SERVICE SHOULD CONTINUE TO BE SUBSIDIZED BY THE FREIGHT
SHIPPERS THROUGHOUT THE COUNTRY. 

"THERE ARE SUBSTANTIAL LOSSES, HOWEVER, OCCURRING IN PASSENGER
SERVICE BEYOND THOSE ATTRIBUTABLE SOLELY TO COMMUTER SERVICE.  WHERE
THIS PASSENGER SERVICE  ...  CANNOT BE MADE TO PAY ITS OWN WAY BECAUSE
OF LACK OF PATRONAGE AT REASONABLE RATES, ABANDONMENT SEEMS CALLED
FOR."  H.R. REP. NO. 1922, 85TH CONG., 2D SESS., 11-12. 

"A MOST SERIOUS PROBLEM FOR THE RAILROADS IS THE DIFFICULTY AND DELAY
THEY OFTEN ENCOUNTER WHEN THEY SEEK TO DISCONTINUE OR CHANGE THE
OPERATION OF SERVICES OR FACILITIES THAT NO LONGER PAY THEIR WAY AND
FOR WHICH THERE IS NO LONGER SUFFICIENT PUBLIC NEED TO JUSTIFY THE
HEAVY FINANCIAL LOSSES ENTAILED.  THE SUBCOMMITTEE BELIEVES THAT THE
MAINTENANCE AND OPERATION OF SUCH OUTMODED SERVICES AND FACILITIES
CONSTITUTES A HEAVY BURDEN ON INTERSTATE COMMERCE."  S. REP. NO. 1647,
85TH CONG., 2D SESS., 21. 

FN7  S. 3778, 85TH CONG., 2D SESS., 6.  SEE ALSO THE REMARKS OF
SENATOR SMATHERS, CHAIRMAN OF THE SURFACE TRANSPORTATION SUBCOMMITTEE,
WHO MADE IT CLEAR THAT THE NET LOSS STANDARD DID NOT REFER TO ALL
OPERATIONS ON A LINE OR ALL OPERATIONS WITHIN A STATE BUT RATHER TO
"THE LOSS FROM THE PARTICULAR OPERATION THE RAILROAD IS RENDERING." 
104 CONG. REC. 10849. 

FN8  SEE 104 CONG. REC. 10846-10849.  SEE ALSO PP. 10838-10839. 

FN9  104 CONG. REC. 12547-12548. 

FN10  104 CONG. REC. 12551. 

FN11  S. REP. NO. 1647, 85TH CONG., 2D SESS., 22. 

FN12  104 CONG. REC. 10862, 10864. 

FN13  H.R. 12832, 85TH CONG., 2D SESS., 10. 

FN14  UNDER SEC 13A(2), WHICH APPLIES SOLELY TO INTRASTATE TRAINS,
THE COMMISSION MAY NOT AUTHORIZE DISCONTINUANCE UNTIL AFTER THE
APPROPRIATE STATE REGULATORY AGENCY HAS BEEN GIVEN AN OPPORTUNITY TO
ACT AND HAS FAILED OR REFUSED TO AUTHORIZE DISCONTINUANCE.  SEE NEW
JERSEY V. NEW YORK, S. & W.R. CO., 372 U.S. 1,4. 

FN15  SEE 49 U.S.C. SEC 13A(1), (2). 

FN16  THE FACT THAT CONGRESS INTENDED THE SAME SUBSTANTIVE STANDARDS
TO BE APPLIED BOTH TO INTRASTATE AND INTERSTATE DISCONTINUANCES WHOLLY
VITIATES APPELLEES' ARGUMENT THAT THE COMMISSION IS REQUIRED TO TAKE
INTO ACCOUNT, WHEREVER PRESENTED, THE PROFITABILITY OF INTRASTATE
OPERATIONS AS A WHOLE OR ANY SEGMENT THEREOF WHENEVER AN INTRASTATE
SERVICE IS SOUGHT TO BE DISCONTINUED.  THUS, CONSIDERATION OF THE
OVERALL PROSPERITY OF THE CARRIER IS NECESSARILY RELEVANT TO A
DETERMINATION OF THE DEGREE TO WHICH A DEFICIT RESULTING FROM A GIVEN
SERVICE CONSTITUTES AN UNDUE BURDEN ON INTERSTATE COMMERCE.  BUT
NEITHER THE PROFITABILITY OF SUCH FREIGHT OPERATIONS AS ARE
FORTUITOUSLY CONDUCTED ON THE SAME LINE AS A GIVEN PASSENGER SERVICE
NOR THE PROFITABILITY OF ALL OPERATIONS WITHIN ANY GIVEN STATE BEARS
ANY PRACTICAL RELATIONSHIP EITHER TO THE PUBLIC'S NEED FOR THE SERVICE
IN QUESTION OR TO THE BURDEN WHICH THE DEFICIT IMPOSES ON INTERSTATE
COMMERCE. 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THIS CASE INVOLVES MORE THAN THE FATE OF THE 6:10 BETWEEN GREENSBORO
AND GOLDSBORO, NORTH CAROLINA.  IT IS THE FIRST LITIGATION TO REACH
THIS COURT CONCERNING THE CRITERIA TO BE APPLIED BY THE INTERSTATE
COMMERCE COMMISSION IN PROCEEDINGS SEEKING DISCONTINUANCE OF INTRASTATE
PASSENGER TRAINS UNDER SEC 13A(2) OF THE INTERSTATE COMMERCE ACT, 72
STAT.  571, 49 U.S.C. SEC 13A(2).  THIS SECTION PROVIDES THAT WHERE A
STATE HAS FAILED OR REFUSED TO ALLOW DISCONTINUANCE OF AN INTRASTATE
PASSENGER TRAIN, THE ICC MAY AUTHORIZE THE INTRASTATE DISCONTINUANCE IF
IT FINDS "THAT (A) THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND
NECESSITY PERMIT OF SUCH DISCONTINUANCE  ...  AND (B) THE CONTINUED
OPERATION  ...  WILL CONSTITUTE AN UNJUST AND UNDUE BURDEN UPON THE
INTERSTATE OPERATIONS OF SUCH CARRIER  ...  OR UPON INTERSTATE
COMMERCE."  THE COURT SUSTAINS THE ICC IN INTERPRETING THIS PROVISION
TO MEAN THAT, IN DETERMINING WHETHER AN UNPROFITABLE INTRASTATE
PASSENGER TRAIN SHALL BE DISCONTINUED, THE COMMISSION NEED GIVE:  (1)
"LITTLE OR NO WEIGHT" TO THE OVERALL PROSPERITY OF THE CARRIER, ANTE,
AT 96, AND (2) NO CONSIDERATION WHATSOEVER TO THE PROFITABILITY OF "THE
INTRASTATE OPERATIONS OF THE CARRIER AS A WHOLE, OR ANY PARTICULAR
SEGMENT THEREOF," ANTE, AT 104.  (FN1)  IN MY VIEW THE STANDARDS
EMPLOYED BY THE COMMISSION WERE NOT THE PROPER ONES.  CONSEQUENTLY,
WITHOUT INTIMATING ANY OPINION AS TO THE MERITS OF THE DISCONTINUANCE
APPLICATION, I WOULD REMAND THE CASE TO THE COMMISSION FOR FURTHER
CONSIDERATION AND APPROPRIATE FINDINGS.  SEE, E.G., INTERSTATE COMMERCE
COMM'N V. J-T TRANSPORT CO., INC., 368 U.S. 81, 93. 

SINCE "PASSENGER DEFICITS HAVE BECOME CHRONIC IN THE RAILROAD
INDUSTRY," CHICAGO, M., ST. P.&P.R. CO. V. ILLINOIS, 355 U.S. 300, 307,
THE COURT'S DECISION WILL ALLOW THE COMMISSION TO AUTHORIZE THE
NATION'S RAILROADS TO DISCONTINUE VIRTUALLY ALL INTRASTATE PASSENGER
SERVICE - INCLUDING MOST COMMUTER SERVICES.  IT IS DIFFICULT TO
CONCEIVE OF A SITUATION IN THIS ERA OF WIDESPREAD BUS, AIRLINE AND
AUTOMOBILE TRANSPORTATION IN WHICH THE COMMISSION CANNOT FIND THAT
ALTERNATIVE SERVICES ARE MORE OR LESS AVAILABLE TO HANDLE THE
DIMINISHED RAILROAD PASSENGER TRAFFIC.  SUCH A FINDING COUPLED WITH A
"NET LOSS" ON THE PASSENGER TRAINS WILL MEET THE DISCONTINUANCE
STANDARD APPROVED BY THE COURT.  THE COURT CONCLUDES THAT THIS RESULT
HAS BEEN MANDATED BY CONGRESS.  IF THIS WERE SO, THERE WOULD BE NO
BASIS FOR DISSENT, SINCE I AGREE ENTIRELY WITH THE COURT THAT "WHATEVER
ROOM THERE MAY BE FOR DIFFERING VIEWS AS TO THE WISDOM OF THE POLICY
...  , IT IS THE DUTY OF THE COMMISSION (AND THE COURT) TO EFFECTUATE
THE STATUTORY SCHEME."  ANTE, AT 105.  I DO NOT BELIEVE, HOWEVER, THAT
IT CAN BE FAIRLY CONCLUDED FROM THE STATUTE OR FROM ITS LEGISLATIVE
HISTORY THAT CONGRESS INTENDED, DESPITE THE RULING OF A STATE
AUTHORITY, THAT INTRASTATE PASSENGER TRAINS COULD BE DISCONTINUED ON
THE BASIS OF THE SLENDER SHOWING REQUIRED BY THE ICC AND APPROVED BY
THIS COURT.    THE CASE TURNS UPON THE LANGUAGE AND PURPOSE OF SEC
13A(2) OF THE INTERSTATE COMMERCE ACT.  THIS SECTION WAS FIRST ENACTED
AS PART OF THE TRANSPORTATION ACT OF 1958.  IT IS TRUE, AS THE COURT
POINTS OUT, THAT THIS LEGISLATION REFLECTS CONCERN WITH "THE WORSENING
RAILROAD SITUATION."  ANTE, AT 101, N. 6.  BUT IT IS FAR FROM ACCURATE
TO CONCLUDE THAT CONGRESS WAS OBLIVIOUS OF THE NEEDS OF THE PASSENGER
PUBLIC AND OF THE PRIMARY RESPONSIBILITY OF STATE COMMISSIONS FOR THE
REGULATION OF PURELY INTRASTATE SERVICE.  UNDER 13A(2) A RAILROAD
SEEKING TO DISCONTINUE AN INTRASTATE PASSENGER TRAIN, AS DISTINGUISHED
FROM AN INTERSTATE OPERATION, MUST FIRST APPLY TO THE APPROPRIATE STATE
COMMISSION.  ONLY AFTER THE STATE COMMISSION HAS BEEN GIVEN THE
OPPORTUNITY AND HAS FAILED OR REFUSED TO ACT IS THE ICC AUTHORIZED TO
INTERVENE.  THE COMMISSION MAY REVERSE THE DECISION OF THE STATE AGENCY
ONLY UPON FINDINGS, SUPPORTED BY SUBSTANTIAL EVIDENCE, THAT THE SERVICE
IS NOT REQUIRED BY PUBLIC CONVENIENCE AND NECESSITY AND THAT ITS
CONTINUANCE WILL CONSTITUTE "AN UNJUST AND UNDUE BURDEN  ...  UPON
INTERSTATE COMMERCE."  SENATOR SMATHERS, ONE OF THE BILL'S SPONSORS,
EXPLAINED THAT SEC 13A(2): 

"PROTECTED THE RIGHT OF THE STATES,  ...  BY LEAVING TO THE STATE
REGULATORY AGENCIES THE RIGHT TO REGULATE AND HAVE A FINAL DECISION
WITH RESPECT TO THE DISCONTINUANCE OF TRAIN SERVICE WHICH ORIGINATED
AND ENDED WITHIN ONE PARTICULAR STATE, EXCEPT WHEN IT COULD BE
ESTABLISHED THAT INTRASTATE SERVICE WAS A BURDEN ON INTERSTATE
COMMERCE."  104 CONG.  REC. 15528. 

IN THIS CASE THE STATE OF NORTH CAROLINA POINTS OUT THAT BETWEEN 1951
AND 1956, OF 44 REQUESTS FOR DISCONTINUANCE OF INTRASTATE PASSENGER
TRAINS, SOME EMANATING FROM APPELLANT SOUTHERN RAILWAY, 42 WERE
APPROVED BY THE STATE.  INDEED, ON THE LINE BETWEEN GREENSBORO AND
GOLDSBORO, SOUTHERN OPERATED THREE PAIRS OF PASSENGER TRAINS UNTIL
SEPTEMBER 1954.  THE STATE, ON SOUTHERN'S APPLICATION, AUTHORIZED
DISCONTINUANCE OF ONE PAIR OF TRAINS IN 1954 AND ANOTHER PAIR IN 1958. 
THE TWO TRAINS IN QUESTION, NO. 13 AND NO. 16, ARE THE LAST REMAINING
PAIR OF EAST-WEST PASSENGER TRAINS BETWEEN THE TWO COMMUNITIES.  THEY
ARE THE ONLY INTERCONNECTING SERVICE AT GREENSBORO FOR PASSENGERS FROM
GOLDSBORO AND INTERMEDIATE POINTS WITH NORTH-SOUTH TRAINS ON SOUTHERN'S
MAIN LINE.  FOR SUCH PASSENGERS, THEY FURNISH A CONVENIENT OVERNIGHT
PULLMAN SERVICE TO WASHINGTON, NEW YORK AND OTHER EAST COAST CITIES AND
CONSERVE WORKING TIME FOR THE TRAVELER HAVING BUSINESS AT THE NORTH OR
SOUTH TERMINAL CITIES.  TRAINS 13 AND 16 RUN ON TRACKS LEASED BY
SOUTHERN FROM THE STATE-OWNED NORTH CAROLINA RAILROAD COMPANY.  THE
LEASE CLEARLY CONTEMPLATES BOTH PASSENGER AND FREIGHT SERVICE. 
FURTHERMORE, AS THE COURT RECITES IN ITS OPINION, WHILE DURING THE
RELEVANT YEAR SOUTHERN SUSTAINED A LOSS ON ITS PASSENGER SERVICE ON THE
LINE OF APPROXIMATELY $90,000, IT MADE A PROFIT OF OVER $600,000 ON
FREIGHT ON THE SAME LEASED LINE AND AN OVERALL PROFIT ON ITS ENTIRE
SYSTEM IN EXCESS OF $36,000,000.  WHILE PASSENGER TRAFFIC ON THIS LINE
HAS DECLINED IN RECENT YEARS, THE TRAFFIC IS STILL SUBSTANTIAL - 14,776
PASSENGERS USED THE TWO TRAINS IN 1960, AN INCREASE OF MORE THAN 500
OVER THE PREVIOUS YEAR - AND THE AREA SERVED HAS BEEN GROWING IN
POPULATION AND INDUSTRIAL IMPORTANCE.  ON THESE FACTS, THE STATE AGENCY
DENIED SOUTHERN'S REQUEST TO DISCONTINUE THE TWO TRAINS.  IN OVERRULING
THE DECISION OF THE STATE, THE ICC, AS ALREADY STATED, GAVE "LITTLE OR
NO WEIGHT" TO SOUTHERN'S OVERALL PROSPERITY AND NO CONSIDERATION
WHATSOEVER TO ITS FREIGHT PROFITS ON THE LINE.  IN MY VIEW, THE
COMMISSION WRONGFULLY IGNORED THESE FACTORS AND THE COURT ERRS IN
APPROVING THIS ACTION OF THE COMMISSION. 

I READ THE ACT AND ITS HISTORY TO REQUIRE THE COMMISSION TO TAKE INTO
ACCOUNT ALL MATERIAL FACTORS ESTABLISHED BY EVIDENCE PRESENTED BY THE
PARTIES AND BEARING ON THE ISSUES OF PUBLIC NEED AND BURDEN ON
INTERSTATE COMMERCE.  THE THREE-JUDGE DISTRICT COURT PROPERLY OBSERVED
THAT THESE ISSUES ARE "NOT SUSCEPTIBLE OF SCIENTIFIC MEASUREMENT OR
EXACT FORMULAE BUT ARE QUESTIONS OF DEGREE AND INVOLVE THE BALANCING OF
CONFLICTING INTERESTS."  210 F. SUPP. 675, 684.  I CANNOT COMPREHEND
HOW THE COMMISSION CAN ACHIEVE A PROPER BALANCE WITHOUT FULLY
CONSIDERING THE RAILROAD'S RELEVANT PROFIT DATA.  THE ISSUES - WHETHER
THE PUBLIC NEED WILL ALLOW DISCONTINUANCE OF THE PASSENGER SERVICE AND
WHETHER CONTINUED OPERATION WILL UNDULY BURDEN INTERSTATE COMMERCE -
ARE INTERRELATED.  UNDER ANY COMMON-SENSE VIEW OF THE STATUTE, THE
AMOUNT OF THE RAILROAD'S FINANCIAL LOSS ON THE TWO INTRASTATE PASSENGER
TRAINS CANNOT BE CONSIDERED IN ISOLATION FROM ITS FREIGHT PROFITS ON
THAT LINE, ITS INTRASTATE PROFITS, OR ITS OVERALL PROSPERITY.  THE
WORDS "UNJUST" AND "UNDUE" CLEARLY INDICATE THAT CONGRESS INTENDED THAT
THE MERE FACT THAT A PARTICULAR PASSENGER TRAIN IS OPERATING AT A LOSS
I.E., IS A BURDEN - WOULD NOT IN ITSELF JUSTIFY DISCONTINUANCE OF THAT
TRAIN.  THE BURDEN MUST BE "UNJUST" AND "UNDUE," AND WHETHER THIS IS SO
CANNOT BE DETERMINED EXCEPT IN LIGHT OF THE TOTAL CIRCUMSTANCES.  THE
FINAL DETERMINATION MUST BE MADE BY BALANCING ALL THE RELEVANT FACTORS
"THE EFFORT BEING TO DECIDE WHAT FAIRNESS TO ALL CONCERNED DEMANDS." 
COLORADO V. UNITED STATES, 271 U.S. 153, 169.  AS THE DECISIONS OF THIS
COURT PLAINLY INDICATE, THIS DOES NOT MEAN THAT DISCONTINUANCE IS
PROHIBITED UNLESS INTRASTATE PASSENGER AND FREIGHT SERVICE CONSIDERED
TOGETHER SHOW A NET LOSS OR OVERALL PROFITS ARE SUBSTANTIALLY
IMPAIRED.  COLORADO V. UNITED STATES, SUPRA; TRANSIT COMM'N V. UNITED
STATES, 284 U.S. 360.  RATHER, FREIGHT PROFITS AND OVERALL PROFITS ARE
MERELY FACTORS TO BE CONSIDERED BY THE COMMISSION IN DETERMINING
WHETHER THE PARTICULAR PASSENGER LOSS CONSTITUTES AN UNJUST AND UNDUE
BURDEN ON INTERSTATE COMMERCE WHEN BALANCED AGAINST THE PUBLIC NEED. 
(FN2)  SUCH PROFITS MAY NOT BE THE CONTROLLING FACTORS BUT, WHEN
PRESENTED, THEY ARE TO BE CONSIDERED. 

THE COURT DEALT WITH AN ASPECT OF THE INTRASTATE PASSENGER PROBLEM IN
CHICAGO, M., ST. P.&P.R. CO. V. ILLINOIS, 355 U.S. 300, AND PUBLIC
SERVICE COMM'N OF UTAH V. UNITED STATES, 356 U.S. 421.  THESE CASES
INVOLVED THE CONSTRUCTION OF SEC 13(4) OF THE INTERSTATE COMMERCE ACT
WHICH AUTHORIZES THE COMMISSION TO CHANGE INTRASTATE RATES WHENEVER
SUCH RATES DISCRIMINATORILY BURDEN INTERSTATE COMMERCE.  IN THE CHICAGO
CASE THE COURT SAID: 

"WE DO NOT THINK THAT THE DEFICIT FROM THIS SINGLE COMMUTER OPERATION
CAN FAIRLY BE ADJUDGED TO WORK AN UNDUE DISCRIMINATION AGAINST THE
MILWAUKEE ROAD'S INTERSTATE OPERATIONS WITHOUT FINDINGS WHICH TAKE THE
DEFICIT INTO ACCOUNT IN THE LIGHT OF THE CARRIER'S OTHER INTRASTATE
REVENUES FROM ILLINOIS TRAFFIC, FREIGHT AND PASSENGER.  THE BASIC
OBJECTIVE OF SEC 13(4), APPLIED IN THE LIGHT OF SEC 15A(2) TO THIS
CASE, IS TO PREVENT A DISCRIMINATION AGAINST THE CARRIER'S INTERSTATE
TRAFFIC WHICH WOULD RESULT FROM SADDLING THAT TRAFFIC WITH AN UNDUE
BURDEN OF PROVIDING INTRASTATE SERVICES.   A FAIR PICTURE OF THE
INTRASTATE OPERATION, AND WHETHER THE INTRASTATE TRAFFIC UNDULY
DISCRIMINATES AGAINST INTERSTATE TRAFFIC, IS NOT SHOWN, IN THIS CASE,
BY LIMITING CONSIDERATION TO THE PARTICULAR COMMUTER SERVICE IN
DISREGARD OF THE REVENUE CONTRIBUTED BY THE OTHER INTRASTATE
SERVICES."  355 U.S., AT 307-308. 

THE MAJOR PREMISE OF THE OPINION OF THE COURT TODAY, HOWEVER, IS THAT
CONGRESS EXPRESSLY OVERRULED THE CHICAGO AND PUBLIC SERVICE COMMISSION
CASES BY AMENDING SEC 13(4) IN THE TRANSPORTATION ACT OF 1958.  IT IS,
OF COURSE, TRUE THAT SEC 13(4) WAS AMENDED AFTER THESE DECISIONS TO
ALLOW THE ICC TO DETERMINE THAT INTRASTATE RAILWAY RATES DISCRIMINATED
AGAINST INTERSTATE COMMERCE "WITHOUT A SEPARATION OF INTERSTATE AND
INTRASTATE PROPERTY, REVENUES, AND EXPENSES, AND WITHOUT CONSIDERING IN
TOTALITY THE OPERATIONS OR RESULTS THEREOF OF ANY CARRIER  ...  WHOLLY
WITHIN ANY STATE."  72 STAT. 570, 49 U.S.C. SEC 13(4).  I CANNOT AGREE,
HOWEVER, WITH THE COURT'S VIEW THAT CONGRESS BY SO AMENDING SEC 13(4),
WHICH DEALS SOLELY WITH RATE CASES, INTENDED THAT THERE BE READ INTO
SEC 13A(2), WHICH DEALS SOLELY WITH DISCONTINUANCES, LANGUAGE WHICH WAS
NOT SIMILARLY INCORPORATED.  SECTION 13A(2) WAS INITIALLY ENACTED AT
THE SAME TIME THAT SEC 13(4) WAS AMENDED.  IF CONGRESS HAD INTENDED
THAT THE ICC NEED NOT CONSIDER ALL RELEVANT FACTORS IN DISCONTINUANCE
CASES, THE PROPOSED SEC 13A(2) COULD EASILY HAVE BEEN ALTERED TO
INCLUDE THE LANGUAGE THAT WAS ADDED TO SEC 13(4) BY AMENDMENT. 

IN ANY EVENT, EVEN IF THE DIFFERING LANGUAGE IS TO BE UNDERSTOOD AS
IMPORTING THE SAME STANDARDS, IT SEEMS TO ME THAT THE COURT READS THE
AMENDMENT TO SEC 13(4) TOO BROADLY.  THE LEGISLATIVE HISTORY SHOWS THAT
CONGRESS INTENDED THE AMENDMENT TO ALLOW THE ICC TO MAKE A DECISION
UNDER SEC 13(4) WITHOUT CONSIDERING THE TOTALITY OF THE CARRIER'S
OPERATIONS WHEN THE PARTIES HAVE NOT PRESENTED THESE FACTS TO THE
COMMISSION.  WHEN THESE DATA ARE PRESENTED, HOWEVER, AND PUT IN ISSUE
THE AMENDED SECTION WOULD NOT PERMIT THE COMMISSION TO IGNORE THE
EVIDENCE.  THE AMENDMENT PROVIDES THAT THE COMMISSION MAY MAKE ITS
DETERMINATION WITHOUT A SEPARATION OF REVENUES.  THE PERMISSIVE "MAY,"
READ IN LIGHT OF THE LEGISLATIVE HISTORY, REFLECTS THE INTENT OF
CONGRESS "THAT A DECISION OF THE COMMISSION WILL NOT BE UPSET SIMPLY
BECAUSE IT FAILS TO FIND SPECIFICALLY THESE FACTS WHERE THEY HAVE NOT
BEEN PUT IN ISSUE BY THE EVIDENCE BEFORE THE COMMISSION, BUT THIS DOES
NOT MEAN THAT SUCH FACTS WHERE RELEVANT AND PERTINENT ARE NOT TO BE
CONSIDERED."  210 F. SUPP. 675, 682.  THIS INTERPRETATION OF THE
AMENDMENT IS SUPPORTED BY THIS COURT'S AFFIRMANCE OF THE DECISION OF
THE THREE-JUDGE DISTRICT COURT IN UTAH CITIZENS RATE ASSN. V. UNITED
STATES, 192 F. SUPP. 12, AFF'D PER CURIAM, 365 U.S. 649.  THE DISTRICT
COURT THERE SAID: 

"WE BELIEVE THAT A MATTER OF PROCEDURE RATHER THAN ANY SUBSTANTIVE
CHANGE IN THE BASIC TRANSPORTATION POLICY OF THE CONGRESS IS INVOLVED. 
IF THIS WERE NOT SO, SERIOUS CONCEPTUAL AND CONSTITUTIONAL, AND FURTHER
PRACTICAL DIFFICULTIES, WOULD BE INVITED.  BUT THERE SEEMS NO REASON
WHY CONGRESS CANNOT PROVIDE OR CLARIFY A PROCEDURAL FACTOR TO RENDER
MORE PRACTICAL THE FORMULA IT HAS THERETOFORE ESTABLISHED, AND WHICH
WAS, UNDER EXISTING LAW APPROPRIATELY CONSIDERED BY THE MAJORITY IN
(PUBLIC SERVICE COMM'N OF UTAH V. UNITED STATES, 356 U.S. 421).  IN OUR
OPINION THE AMENDMENT IN THIS AREA DOES NO MORE THAN TO OBVIATE THE
PREVIOUSLY DETERMINED NECESSITY OF AFFIRMATIVE FINDINGS OR EVIDENCE
SHOWING THAT THE INTRASTATE PASSENGER DEFICIT IS NOT LOWER THAN THE
INTERSTATE OR CONCERNING THE PROFITABLENESS OF, OR CIRCUMSTANCES
SURROUNDING, SEGMENTS OF INTRASTATE OPERATIONS WITH WHICH THE
COMMISSION WAS NOT IMMEDIATELY CONCERNED.  THE LEGISLATIVE HISTORY OF
THE AMENDMENT BOLSTERS THIS VIEW.  THERE IS NOTHING THEREIN
INCONSISTENT WITH THE FURTHER RECOGNITION THAT TO REBUT THE PRIMA FACIE
PRESUMPTION RESULTING FROM THE AMENDMENT THOSE WHO CLAIM INTRASTATE
TRAFFIC AS A WHOLE IS NOT DISCRIMINATING AGAINST INTERSTATE COMMERCE
MAY SHOW AS AN AFFIRMATIVE MATTER FAVORABLE ASPECTS OF INTRASTATE
OPERATIONS.  THE DISSENTING OPINION TO THIS EFFECT REFERRED TO THE THEN
PENDING BILL COUCHED IN THE SAME LANGUAGE AS THAT LATER ADOPTED IN THE
TRANSPORTATION ACT OF 1958, AND THE COMMITTEE, CONSIDERING THE PENDING
LEGISLATION, CITED THE DISSENTING OPINION WITH APPARENT APPROVAL." 
(FN3)  192 F. SUPP., AT 18-20. 

THE DISSENTING OPINION REFERRED TO BY THE COURT HAD SAID: 

"OF COURSE, THOSE WHO CONTEND THAT INTRASTATE TRAFFIC AS A WHOLE IS
NOT DISCRIMINATING AGAINST INTERSTATE TRAFFIC MAY COME FORWARD AND
SHOW, AS THEY MAY IN RESPECT TO ANY CLAIMED DISSIMILARITY OF CONDITIONS
SURROUNDING INTERSTATE AND INTRASTATE TRAFFIC, SOME FAVORABLE ASPECT OF
INTRASTATE OPERATIONS THAT THE COMMISSION SHOULD TAKE INTO ACCOUNT.  IN
THE ABSENCE OF SUCH A SHOWING, HOWEVER, THE COMMISSION SHOULD BE ABLE
TO ASSUME THAT DISCRIMINATION SHOWN TO EXIST AS TO THE PARTICULAR
SEGMENTS OF INTRASTATE AND INTERSTATE TRAFFIC WITH WHICH THE SEC 13(4)
PROCEEDING IS CONCERNED IS NOT OFFSET BY OTHER CONDITIONS THAT THIS
COURT SPECULATES MAY AFFECT WHOLLY DIFFERENT SEGMENTS OF INTRASTATE
COMMERCE."  PUBLIC SERVICE COMM'N OF UTAH V. UNITED STATES, SUPRA, AT
462-463. 

IT NECESSARILY FOLLOWS THAT IF SEC 13(4), WITH ITS AMENDATORY
LANGUAGE, DOES NOT PERMIT THE COMMISSION TO IGNORE EVIDENCE OF ALL
RELEVANT FACTS ACTUALLY OFFERED BY THE PARTIES IN A RATE CASE, SUCH
EVIDENCE CANNOT BE DISREGARDED IN A DISCONTINUANCE PROCEEDING UNDER SEC
13A(2) WHICH LACKS EVEN THE AMENDING LANGUAGE. 

FINALLY, THE LEGISLATIVE HISTORY OF SEC 13A(2) PLAINLY DEMONSTRATES
THAT THE COURT HAS MISTAKEN THE INTENT OF CONGRESS.  THE BILL INITIALLY
CONSIDERED BY THE SENATE PROVIDED THAT DISCONTINUANCE WOULD BE DENIED
AND THE CONTINUANCE APPROVED IF THE COMMISSION FOUND THAT: 

"THE OPERATION OR SERVICE OF SUCH TRAIN  ...  IS REQUIRED BY PUBLIC
CONVENIENCE AND NECESSITY AND THAT SUCH OPERATION OR SERVICE WILL NOT
RESULT IN A NET LOSS THEREFROM TO THE CARRIER OR CARRIERS AND WILL NOT
OTHERWISE UNDULY BURDEN INTERSTATE OR FOREIGN COMMERCE  ...  ."  S.
3778, 85TH CONG., 2D SESS. 

AS THE COURT NOTES IN ITS OPINION, SENATOR JAVITS OPPOSED THIS "NET
LOSS" STANDARD.  ANTE, AT 102.   THE COURT, HOWEVER, MISSES THE IMPORT
OF SENATOR JAVITS' VIEW, WHICH, SINCE IT ULTIMATELY PREVAILED, IS
HIGHLY SIGNIFICANT.  THE SENATOR OBJECTED ON THE GROUND THAT THE NET
LOSS CRITERION WOULD AUTHORIZE THE DISCONTINUANCE OF ANY INTRASTATE
COMMUTER TRAIN WHICH, CONSIDERED BY ITSELF, SHOWED A NET LOSS.  HE
NOTED THAT UNDER THE PROPOSAL, WHENEVER A NET LOSS WAS SHOWN,
DISCONTINUANCE COULD FOLLOW REGARDLESS OF WHETHER THAT LOSS UNDULY
BURDENED INTERSTATE COMMERCE.  THE SENATOR ANALYZED THE PROPOSED BILL
IN A MANNER MOST RELEVANT TO THE PRESENT CASE:    "IT IS MY VIEW, AS
THE BILL IS NOW WRITTEN, THAT QUESTION OF LAW (AS TO THE MEANING OF
'NET LOSS THEREFROM') WILL BE DECIDED IN TERMS OF A NET LOSS ON THE
PARTICULAR SECTION OF A RAILROAD WHICH IS SOUGHT TO BE DISCONTINUED,
RATHER THAN THE NET LOSS ON THE TOTAL OPERATIONS OF THE CARRIER OF
WHICH THAT SECTION OF THE ROAD IS A PART."  104 CONG. REC. 10847. 

SENATOR JAVITS CONCLUDED THAT THE BILL SHOULD BE AMENDED TO INSURE
THAT THE ICC BE GIVEN A "BALANCED AUTHORITY TO DEAL WITH THE SITUATION,
BOTH IN RESPECT TO LOSSES AND IN RESPECT TO THE PUBLIC IN THE WAY OF
CONVENIENCE AND NECESSITY."  ID., AT 10848.  SENATOR SMATHERS, A
SPONSOR OF THE PROPOSED BILL, DID NOT DENY THE ACCURACY OF SENATOR
JAVITS' INTERPRETATION.  INDEED, SENATOR SMATHERS RESPONDED:  "WE
CONSTRUE THE WORDS 'NET LOSS' TO MEAN THE LOSS FROM THE PARTICULAR
OPERATION THE RAILROAD IS RENDERING."  ID., AT 10849.  ALTHOUGH SENATOR
JAVITS WAS INITIALLY UNSUCCESSFUL IN HIS EFFORTS TO DEFEAT THE PASSAGE
OF THE NET LOSS PROVISION, HIS ARGUMENTS PREVAILED, AS THE COURT NOTES,
BOTH IN THE HOUSE AND IN THE FINAL BILL. 

ON THE FLOOR OF THE HOUSE, REPRESENTATIVE HARRIS, CHAIRMAN OF THE
HOUSE INTERSTATE AND FOREIGN COMMERCE COMMITTEE, OFFERED AN AMENDMENT
DELETING THE NET LOSS CLAUSE.  IT WAS ARGUED THAT THE BILL WOULD: 

"WITHOUT THIS AMENDMENT, PUT THE PUBLIC ENTIRELY AT THE MERCY OF THE
RAILROAD BY ESTABLISHING A NEW STANDARD FOR THE DISCONTINUANCE OF TRAIN
SERVICE BY A MERE SHOWING OF A LOSS IN THE OPERATION OF ANY TRAIN  ...
.  WE CANNOT GO SO FAR AFIELD AS TO SAY THAT UNLESS EVERY SINGLE ITEM
OF SERVICE SHOWS A PROFIT THE RAILROAD CAN DISCONTINUE ANY SERVICE
REGARDLESS OF PUBLIC CONVENIENCE AND NECESSITY."  ID., AT 12547-12548. 

THE DELETING AMENDMENT PREVAILED IN THE HOUSE, AND AT CONFERENCE THE
"NET LOSS" PROVISION OF THE SENATE BILL WAS ABANDONED IN FAVOR OF THE
HOUSE PROPOSAL.  CONGRESS, THEREFORE, IN ACTING ON THE RECOMMENDATIONS
OF SENATOR JAVITS AND CONGRESSMAN HARRIS SPECIFICALLY REJECTED THE
PROPOSED NET LOSS STANDARD.  THE COURT TODAY, HOWEVER, APPEARS TO ADOPT
IN SUBSTANTIAL MEASURE THE REJECTED STANDARD.  (FN4)  IF, AS THE COURT
HOLDS, THE COMMISSION NEED GIVE "LITTLE OR NO WEIGHT" TO THE OVERALL
PROSPERITY OF THE CARRIER AND NO CONSIDERATION WHATEVER TO THE
PROFITABILITY OF ITS TOTAL INTRASTATE OPERATIONS, IT WOULD SEEM THAT
THE GOVERNING CRITERION IN DETERMINING WHETHER INTERSTATE COMMERCE IS
UNDULY BURDENED IS THE "NET LOSS" ON A PARTICULAR PASSENGER TRAIN. 
(FN5)  THIS CERTAINLY DOES NOT ALLOW THE ICC "A BALANCED AUTHORITY TO
DEAL WITH THE SITUATION, BOTH IN RESPECT TO LOSSES AND IN RESPECT TO
THE PUBLIC IN THE WAY OF CONVENIENCE AND NECESSITY." 

THE RESULT INTENDED BY CONGRESS CERTAINLY CANNOT BE ACHIEVED BY
ALLOWING THE COMMISSION TO MAKE A FINAL RULING ON A DISCONTINUANCE
APPLICATION WITHOUT CONSIDERING THE QUESTION OF UNDUE OR UNJUST
BURDEN.  (FN6)  A "BALANCED AUTHORITY" FOR THE ICC SURELY MEANS THAT
BEFORE OVERRIDING STATE ACTION AND AUTHORIZING THE DISCONTINUANCE OF A
WHOLLY INTRASTATE PASSENGER TRAIN, THE COMMISSION MUST CONSIDER ALL
SUBSTANTIAL EVIDENCE PRESENTED BY THE PARTIES AND BEARING UPON WHETHER
THE DISCONTINUANCE IS CONSISTENT WITH PUBLIC NECESSITY AND WHETHER THE
CONTINUED OPERATION WILL CONSTITUTE AN UNJUST AND UNDUE BURDEN UPON
INTERSTATE COMMERCE.  IN MAKING THIS DETERMINATION THE FACTORS FOR THE
COMMISSION TO CONSIDER NECESSARILY INCLUDE THE CHARACTER AND POPULATION
OF THE TERRITORY SERVED; THE PASSENGER TRAFFIC OR LACK OF IT; THE
ALTERNATIVE TRANSPORTATION FACILITIES; THE LOSSES ON THE PASSENGER
OPERATION AS COMPARED WITH THE REVENUE FROM FREIGHT ON THE PARTICULAR
LINE AND THE REVENUE FROM INTRASTATE BUSINESS AS WELL AS THE
PROFITABILITY OF THE RAILROAD AS A WHOLE.  (FN7) 

THE REQUIREMENT THAT THE COMMISSION CONSIDER SUCH FACTORS CERTAINLY
DOES NOT MEAN THAT IT IS PRECLUDED FROM AUTHORIZING THE ABANDONMENT OF
AN UNECONOMIC PASSENGER TRAIN BECAUSE THE REMAINDER OF THE RAILROAD'S
INTRASTATE OR OVERALL OPERATIONS ARE PROFITABLE.  (FN8)  IT MEANS ONLY
THAT IN MAKING ITS DETERMINATION THE COMMISSION SHALL GIVE APPROPRIATE
CONSIDERATION TO ALL RELEVANT FACTORS.  ONE FACTOR OR A COMBINATION MAY
PROVE CONTROLLING BUT ALL MUST BE CONSIDERED IN MAKING THE STATUTORY
DETERMINATION.  THIS THE COMMISSION REFUSED TO DO AND, THEREFORE, ITS
ISOLATED FINDING THAT PUBLIC CONVENIENCE AND NECESSITY WOULD PERMIT A
DISCONTINUANCE WAS INSUFFICIENT, ABSENT AN APPROPRIATE CONSIDERATION OF
THE BURDEN ON COMMERCE, TO SUSTAIN ITS CONCLUSION. 

ALTHOUGH I AGREE, FOR THE REASONS STATED, WITH THE THREE-JUDGE
DISTRICT COURT IN ITS INTERPRETATION OF SEC 13A(2), I AM NEVERTHELESS
OF THE VIEW THAT THAT COURT MISCONSTRUED ITS REVIEWING ROLE IN FINDING
THAT THE OPERATION OF THE TWO TRAINS BETWEEN GREENSBORO AND GOLDSBORO
SERVED THE PUBLIC NEED AND CONSTITUTED NO BURDEN ON INTERSTATE
COMMERCE.  THE COURT SHOULD NOT HAVE DETERMINED THIS ISSUE ON THE
RECORD BEFORE IT BUT SHOULD HAVE REMANDED THE CASE FOR FURTHER
PROCEEDINGS BY THE COMMISSION UNDER THE CORRECT LEGAL STANDARD.  SEE,
E.G., INTERSTATE COMMERCE COMM'N V. J-T TRANSPORT CO., INC., 368 U.S.
81, 93. 

FN1  SEE THE STATEMENT OF THE HEARING EXAMINER SET FORTH IN NOTE 4,
INFRA. 

FN2  SEE COLORADO V. UNITED STATES, 271 U.S. 153, 168-169 (BRANDEIS,
J.):  "IN MANY CASES, IT IS CLEAR THAT THE EXTENT OF THE WHOLE TRAFFIC,
THE DEGREE OF DEPENDENCE OF THE COMMUNITIES DIRECTLY AFFECTED UPON THE
PARTICULAR MEANS OF TRANSPORTATION, AND OTHER ATTENDANT CONDITIONS, ARE
SUCH THAT THE CARRIER MAY NOT JUSTLY BE REQUIRED TO CONTINUE TO BEAR
THE FINANCIAL LOSS NECESSARILY ENTAILED BY OPERATION.  IN SOME CASES,
ALTHOUGH THE VOLUME OF THE WHOLE TRAFFIC IS SMALL, THE QUESTION IS
WHETHER ABANDONMENT MAY JUSTLY BE PERMITTED, IN VIEW OF THE FACT THAT
IT WOULD SUBJECT THE COMMUNITIES DIRECTLY AFFECTED TO SERIOUS INJURY
WHILE CONTINUED OPERATION WOULD IMPOSE A RELATIVELY LIGHT BURDEN UPON A
PROSPEROUS CARRIER.  THE PROBLEM AND THE PROCESS ARE SUBSTANTIALLY THE
SAME IN THESE CASES AS WHERE THE CONFLICT IS BETWEEN THE NEEDS OF
INTRASTATE AND OF INTERSTATE COMMERCE.  WHATEVER THE PRECISE NATURE OF
THESE CONFLICTING NEEDS, THE DETERMINATION IS MADE UPON A BALANCING OF
THE RESPECTIVE INTERESTS - THE EFFORT BEING TO DECIDE WHAT FAIRNESS TO
ALL CONCERNED DEMANDS.  IN THAT BALANCING, THE FACT OF DEMONSTRATED
PREJUDICE TO INTERSTATE COMMERCE AND THE ABSENCE OF EARNINGS ADEQUATE
TO AFFORD REASONABLE COMPENSATION ARE, OF COURSE, RELEVANT AND MAY
OFTEN BE CONTROLLING.  BUT THE ACT DOES NOT MAKE ISSUANCE OF THE
CERTIFICATE DEPENDENT UPON A SPECIFIC FINDING TO THAT EFFECT." 

FN3  SEE THE CONFERENCE REPORT, H.R. REP. NO. 2274, 85TH CONG., 2D
SESS. 

FN4  THE REPORT OF THE HEARING EXAMINER, WHICH WAS ACCEPTED BY THE
COMMISSION AND IS NOW APPROVED BY THE COURT, MADE IT CLEAR THAT A NET
LOSS STANDARD WAS UTILIZED: 

"AT THE HEARING, PROTESTANTS EMPHASIZED THE FACT THAT PETITIONER'S
NET RAILWAY OPERATING INCOME IN 1960 WAS $36,107,599, AND THAT ITS NET
INCOME ALONE FROM FREIGHT OPERATIONS ON THE LINE BETWEEN GREENSBORO AND
GOLDSBORO AVERAGES $630,000, THUS CONTENDING THAT THE OVERALL
PROSPERITY OF THE PETITIONER, AS WELL AS ITS INTRASTATE FREIGHT
OPERATIONS, MUST BE GIVEN EFFECT IN THE DISPOSITION OF THE ISSUES
INVOLVED HEREIN.  WITH THESE CONTENTIONS, THE EXAMINER DISAGREES.  THE
LEGISLATIVE HISTORY OF SECTION 13A(2) INDICATES THAT THE PURPOSE
THEREOF IS TO PERMIT THE DISCONTINUANCE OF THE OPERATION OF SERVICES
THAT 'NO LONGER PAY THEIR WAY AND FOR WHICH THERE IS NO LONGER ANY
PUBLIC NEED TO JUSTIFY THE HEAVY FINANCIAL LOSSES INVOLVED.'  (S. REP.
1647, 85TH CONG.).  IN CONSIDERING A SOMEWHAT SIMILAR CONTENTION, IN
SOUTHERN PACIFIC CO. - PARTIAL DISCONTINUANCE OF PASSENGER TRAINS, LOS
ANGELES, ETC. (312 I.C.C. 631), THE COMMISSION MADE THE FOLLOWING
PERTINENT STATEMENT: 

"'NOWHERE IN SECTION 13A(2) OR ELSEWHERE IN THE LAW IS THERE ANY
REQUIREMENT THAT THE PROSPERITY OF THE INTRASTATE OPERATIONS OF THE
CARRIER AS A WHOLE, OR ANY PARTICULAR SEGMENT THEREOF, MUST BE GIVEN
EFFECT IN DETERMINING WHETHER THE OPERATION OF AN INDIVIDUAL INTRASTATE
TRAIN IMPOSES AN UNJUST AND UNDUE BURDEN ON INTERSTATE COMMERCE.  TO
HOLD OTHERWISE WOULD BE CONTRARY TO THE APPARENT INTENT OF THE
CONGRESS.' 

"IN THIS SAME CONNECTION, THE ARGUMENT THAT LOSING PASSENGER
OPERATIONS MUST BE SUPPORTED BY CONSTANTLY INCREASING FREIGHT RATES IS
ALSO UNTENABLE.  IN REJECTING THIS ARGUMENT, THE COMMISSION STATED THAT
SUCH 'THEORY OF REGULATION WOULD NOT BE CONSONANT WITH THE NATIONAL
TRANSPORTATION POLICY, AND WOULD BE FRAUGHT WITH DISASTROUS
POSSIBILITIES.'  GREAT NORTHERN RY. CO. DISCONTINUANCE OF SERVICE, 307
I.C.C. 59, 61.  SIMILARLY, THE FACT THAT PETITIONER'S SYSTEM OPERATIONS
ARE PROFITABLE IS ENTITLED TO LITTLE OR NO WEIGHT  ...  ." 

FN5  THIS DOES NOT IMPLY THAT EITHER THE COMMISSION OR THE COURT HAS
FAILED TO ACKNOWLEDGE THAT A CARRIER MUST SHOW THAT PUBLIC CONVENIENCE
AND NECESSITY WILL PERMIT THE REQUESTED DISCONTINUANCE.  HOWEVER, AS I
HAVE INDICATED, SUPRA, AT 107, UNLESS THE COMMISSION RELATES THIS
FINDING AS TO PUBLIC CONVENIENCE TO AN APPROPRIATE CONSIDERATION OF THE
BURDEN ISSUE, THE AVAILABILITY OF ALTERNATIVE MEANS OF TRANSPORTATION
COUPLED WITH THE FACT OF LOSSES ON DIMINISHED PASSENGER TRAFFIC WILL
SUFFICE TO SANCTION DISCONTINUANCES IN VIRTUALLY ALL CASES. 

FN6  COLORADO V. UNITED STATES, 271 U.S. 153, 168, "THE BENEFIT  ...
OF THE ABANDONMENT MUST BE WEIGHED AGAINST THE INCONVENIENCE  ...  .
CONVERSELY, THE BENEFITS TO PARTICULAR COMMUNITIES AND COMMERCE OF
CONTINUED OPERATION MUST BE WEIGHED AGAINST THE BURDEN THEREBY IMPOSED
UPON OTHER COMMERCE." 

FN7  THE CONCLUSION THAT SEC 13A(2) CONTEMPLATES THE WEIGHING OF SUCH
FACTORS IS REINFORCED BY THE USE OF THE SAME BALANCING APPROACH UNDER
SECS 1(18), 1(20), OF THE INTERSTATE COMMERCE ACT, 41 STAT. 477, 478,
AS AMENDED, 49 U.S.C. SECS 1(18), 1(20).  THESE PROVISIONS, ENACTED IN
1920, EMPOWER THE ICC TO PERMIT ABANDONMENT OF LINES (AS DISTINGUISHED
FROM PARTICULAR TRAINS), WHERE CONTINUED OPERATION OF THE ENTIRE
INTRASTATE LINE WOULD BURDEN INTERSTATE COMMERCE.  SEE COLORADO V.
UNITED STATES, SUPRA; TRANSIT COMM'N V. UNITED STATES, 284 U.S. 360. 

FN8  THE ICC HAS NEVER BEEN PRECLUDED FROM AUTHORIZING ABANDONMENT OF
AN UNECONOMIC BRANCH LINE (AS DISTINGUISHED FROM THE PARTICULAR TRAINS)
MERELY BECAUSE THE REMAINDER OF THE RAILROAD'S INTRASTATE OPERATIONS
WERE PROFITABLE.  SEE NOTE 7, SUPRA.
..END :













COSTELLO V. IMMIGRATION AND NATURALIZATION SERVICE 376 U.S. 120 


NO. 83.  ARGUED DECEMBER 12, 1963.  - DECIDED FEBRUARY 17, 1964.  - 311
F.2D 343, REVERSED. 


PETITIONER, WHILE A NATURALIZED CITIZEN, WAS CONVICTED OF TWO SEPARATE
OFFENSES INVOLVING MORAL TURPITUDE.  FOLLOWING HIS SUBSEQUENT
DENATURALIZATION ON THE GROUND THAT HIS CITIZENSHIP HAD BEEN ACQUIRED
BY WILLFUL MISREPRESENTATION, PROCEEDINGS WERE BROUGHT AGAINST HIM
UNDER SEC 241(A)(4) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952,
WHICH PROVIDES FOR DEPORTATION OF AN ALIEN WHO AT ANY TIME AFTER ENTRY
"IS CONVICTED" OF TWO CRIMES INVOLVING MORAL TURPITUDE.  HE WAS FOUND
DEPORTABLE AND THE COURT OF APPEALS DISMISSED HIS PETITION FOR REVIEW. 
HELD: 

1. THE TWO CONVICTIONS RELIED UPON TO SUPPORT DEPORTATION BOTH
OCCURRED AT A TIME WHEN PETITIONER WAS A NATURALIZED CITIZEN AND HE WAS
THEREFORE NOT DEPORTABLE, THE STATUTE PERMITTING ONLY DEPORTATION OF
ONE WHO WAS AN ALIEN AT THE TIME OF HIS CONVICTIONS.  EICHENLAUB V.
SHAUGHNESSY, 338 U.S. 521, DISTINGUISHED.  PP. 121-128. 

2.  THE PROVISION IN SEC 340(A) OF THE ACT THAT A DENATURALIZATION
ORDER SHALL BE EFFECTIVE AS OF THE ORIGINAL DATE OF NATURALIZATION IS
INAPPLICABLE TO THE GENERAL DEPORTATION PROVISIONS OF THE ACT. 
PETITIONER COULD NOT, THEREFORE, UNDER THE "RELATION-BACK" THEORY OF
THAT PROVISION BE DEEMED TO HAVE BEEN AN ALIEN AT THE TIME OF HIS
CONVICTIONS.  PP. 128-132. 

COSTELLO V. IMMIGRATION AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

PROVIDES THAT "ANY ALIEN IN THE UNITED STATES  ...  SHALL, UPON THE
ORDER OF THE ATTORNEY GENERAL, BE DEPORTED WHO  ...  AT ANY TIME AFTER
ENTRY IS CONVICTED OF TWO CRIMES INVOLVING MORAL TURPITUDE  ...  ." 
(FN1)  THE SINGLE QUESTION TO BE DECIDED IN THE PRESENT CASE IS WHETHER
THIS PROVISION APPLIES TO A PERSON WHO WAS A NATURALIZED CITIZEN AT THE
TIME HE WAS CONVICTED OF THE CRIMES, BUT WAS LATER DENATURALIZED. 

THE PETITIONER, BORN IN ITALY IN 1891, WAS BROUGHT TO THE UNITED
STATES WHEN HE WAS FOUR YEARS OLD AND HAS LIVED HERE EVER SINCE.  HE
BECAME A NATURALIZED CITIZEN IN 1925.  IN 1954 HE WAS CONVICTED OF TWO
SEPARATE OFFENSES OF INCOME TAX EVASION, AND THE CONVICTIONS WERE
ULTIMATELY AFFIRMED BY THIS COURT.  COSTELLO V. UNITED STATES, 350 U.S.
359.  IN 1959 HIS CITIZENSHIP WAS REVOKED AND HIS CERTIFICATE OF
NATURALIZATION CANCELED ON THE GROUND THAT HIS CITIZENSHIP HAD BEEN
ACQUIRED BY WILLFUL MISREPRESENTATION.  THIS COURT AFFIRMED THE
JUDGMENT OF DENATURALIZATION.  COSTELLO V. UNITED STATES, 365 U.S.
265. 

IN 1961 THE IMMIGRATION AND NATURALIZATION SERVICE COMMENCED
PROCEEDINGS TO DEPORT THE PETITIONER UNDER SEC 241(A)(4), AND IT IS
THOSE PROCEEDINGS WHICH HAVE CULMINATED IN THE CASE NOW BEFORE US. THE
SPECIAL INQUIRY OFFICER FOUND THE PETITIONER DEPORTABLE; THE BOARD OF
IMMIGRATION APPEALS AFFIRMED; AND THE COURT OF APPEALS DISMISSED THE
PETITION FOR REVIEW, HOLDING THAT THE PETITIONER WAS SUBJECT TO
DEPORTATION UNDER SEC 241(A)(4) EVEN THOUGH THE TWO CONVICTIONS RELIED
UPON TO SUPPORT DEPORTATION BOTH OCCURRED AT A TIME WHEN HE WAS A
NATURALIZED CITIZEN.  311 F.2D 343.  WE GRANTED CERTIORARI TO CONSIDER
AN IMPORTANT QUESTION OF FEDERAL LAW.  (FN2) FOR THE REASONS WHICH
FOLLOW, WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

AT A SEMANTIC LEVEL, THE CONTROVERSY CENTERS AROUND THE USE OF THE
PRESENT TENSE "IS" IN THE CLAUSE "ANY ALIEN WHO AT ANY TIME AFTER ENTRY
IS CONVICTED  ...  ."  THE PETITIONER ARGUES THAT THIS LANGUAGE PERMITS
DEPORTATION ONLY OF ONE WHO WAS AN ALIEN AT THE TIME OF HIS
CONVICTIONS.  THE COURT OF APPEALS TOTALLY REJECTED SUCH A CONTENTION,
HOLDING THAT THIS STATUTORY LANGUAGE, CONSIDERED ALONG WITH THE PHRASE
"AT ANY TIME AFTER ENTRY" AND WITH THE BROAD LEGISLATIVE HISTORY,
CLEARLY PERMITS DEPORTATION OF A PERSON NOW AN ALIEN WHO WAS CONVICTED
OF THE TWO CRIMES IN QUESTION WHILE HE WAS A NATURALIZED CITIZEN. 
"THERE IS NO AMBIGUITY," THE COURT WROTE, AND "NO ROOM FOR
INTERPRETATION OR CONSTRUCTION."  311 F.2D, AT 345.  THE COURT FOUND
ADDITIONAL SUPPORT FOR ITS CONCLUSION IN EICHENLAUB V. SHAUGHNESSY, 338
U.S. 521, A CASE WHICH HELD THAT UNDER A 1920 DEPORTATION LAW ALIENS
WHO HAD BEEN CONVICTED OF SPECIFIED OFFENSES WERE DEPORTABLE EVEN
THOUGH THE CONVICTIONS HAD OCCURRED AT A TIME WHEN THE ALIENS HELD
CERTIFICATES OF NATURALIZATION. 

WE TAKE A DIFFERENT VIEW.  THE STATUTE CONSTRUED IN EICHENLAUB
DIFFERS FROM SEC 241(A)(4) IN SEVERAL IMPORTANT RESPECTS.  THE LAW
THERE INVOLVED WAS THE ACT OF MAY 10, 1920, WHICH PROVIDED THAT "ALL
ALIENS WHO SINCE AUGUST 1, 1914, HAVE BEEN OR MAY HEREAFTER BE
CONVICTED" OF VIOLATIONS OF THE ESPIONAGE ACT OF 1917, AS AMENDED, WERE
TO BE DEPORTED, PROVIDED THE SECRETARY OF LABOR AFTER A HEARING FOUND
THEM TO BE UNDESIRABLE RESIDENTS OF THE UNITED STATES.  (FN3)  THE
COURT READ THIS LANGUAGE AS UNAMBIGUOUSLY AUTHORIZING DEPORTATION;
REGARDLESS OF THE ALIENS' STATUS AT THE TIME THEY WERE CONVICTED.  IT
IS EVIDENT FROM WHAT WAS SAID IN THE OPINION THAT THE COURT WAS AIDED
CONSIDERABLY IN ITS SEARCH FOR THE PROPER CONSTRUCTION OF THE STATUTE
BY CONGRESS' USE OF THE PAST TENSE IN THE PHRASE "HAVE BEEN OR MAY
HEREAFTER BE," AND THE FACT THAT THE ONLY LIMITATION WHICH CONGRESS
PLACED UPON THE TIME OF CONVICTION WAS THAT IT BE "SINCE AUGUST 1,
1914."  (FN4)  THE COURT ALSO FOUND SPECIFIC LEGISLATIVE HISTORY TO
SUPPORT ITS CONCLUSION.  AS THE CONGRESSIONAL COMMITTEE REPORTS
DEMONSTRATED, THE 1920 LAW WAS A SPECIAL STATUTE DEALING WITH SABOTAGE
AND ESPIONAGE, ORIGINALLY ENACTED IN ORDER TO DEPORT "SOME OR ALL OF
ABOUT 500 ALIENS WHO WERE THEN INTERNED AS DANGEROUS ENEMY ALIENS AND
WHO MIGHT BE FOUND, AFTER HEARINGS, TO BE UNDESIRABLE RESIDENTS, AND
ALSO TO DEPORT SOME OR ALL OF ABOUT 150 OTHER ALIENS WHO, DURING WORLD
WAR I, HAD BEEN CONVICTED OF VIOLATIONS OF THE ESPIONAGE ACT OR OTHER
NATIONAL SECURITY MEASURES, AND WHO MIGHT BE FOUND, AFTER HEARINGS, TO
BE UNDESIRABLE RESIDENTS."  338 U.S., AT 532.  THE COURT THEREFORE
CONCLUDED THAT CONGRESS, WHEN IT ENACTED THE STATUTE, HAD EXPRESSED A
CLEAR INTENT TO GROUP TOGETHER DENATURALIZED CITIZENS ALONG WITH ALIENS
WHO HAD NEVER ACQUIRED CITIZENSHIP AND TO DEPORT THEM FOR SPECIFIC
CRIMES INVOLVING NATIONAL SECURITY OCCURRING AFTER A SPECIFIC DATE AT
THE BEGINNING OF WORLD WAR I. 

NEITHER THE LANGUAGE NOR THE HISTORY OF SEC 241(A)(4) LENDS ITSELF SO
EASILY TO A SIMILAR CONSTRUCTION.  THE SUBSECTION EMPLOYS NEITHER A
PAST TENSE VERB NOR A SINGLE SPECIFIC TIME LIMITATION.  THE
PETITIONER'S CONSTRUCTION - THAT THE LANGUAGE PERMITS DEPORTATION ONLY
OF A PERSON WHO WAS AN ALIEN AT THE TIME OF HIS CONVICTIONS, AND THE
COURT OF APPEALS' CONSTRUCTION - THAT THE LANGUAGE PERMITS DEPORTATION
OF A PERSON NOW AN ALIEN WHO AT ANY TIME AFTER ENTRY HAS BEEN CONVICTED
OF TWO CRIMES, REGARDLESS OF HIS STATUS AT THE TIME OF THE CONVICTIONS
ARE BOTH POSSIBLE READINGS OF THE STATUTE, AS THE RESPONDENT HAS
CONCEDED IN BRIEF AND ORAL ARGUMENT. 

WE AGREE WITH THE COURT OF APPEALS THAT THE TENSE OF THE VERB "BE" IS
NOT, CONSIDERED ALONE, DISPOSITIVE.  (FN5)  ON THE OTHER HAND, WE
DISAGREE WITH THAT COURT'S RELIANCE ON THE PHRASE "AT ANY TIME AFTER
ENTRY" IN SEC 241(A)(4) TO SUPPORT THE CONCLUSION THAT AN ALIEN IS
DEPORTABLE FOR POST-ENTRY CONDUCT WHETHER OR NOT HE WAS AN ALIEN AT THE
TIME OF CONVICTION.  SINCE SEC 212(A)(9) (FN6) PROVIDES FOR THE
EXCLUSION OF ALIENS CONVICTED OF CRIMES OF MORAL TURPITUDE, AND ANY
EXCLUDABLE ALIEN WHO NEVERTHELESS ENTERS THE COUNTRY IS DEPORTABLE
UNDER SEC 241(A)(1), (FN7) IT SEEMS JUST AS LOGICAL TO CONCLUDE THAT
THE PURPOSE OF THE PHRASE "AT ANY TIME AFTER ENTRY" IN SEC 241(A)(4)
WAS SIMPLY TO MAKE CLEAR THAT SEC 241(A)(4) AUTHORIZES THE DEPORTATION
OF ALIENS WHO WERE NOT ORIGINALLY EXCLUDABLE, BUT WERE CONVICTED AFTER
ENTRY. 

THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF SEC 241(A)(4) OF SO
SPECIFIC A NATURE AS TO RESOLVE THE AMBIGUITY OF THE STATUTORY
LANGUAGE.  THE GENERAL LEGISLATIVE PURPOSE UNDERLYING ENACTMENT OF SEC
241(A)(4) WAS TO BROADEN THE PROVISIONS GOVERNING DEPORTATION,
"PARTICULARLY THOSE REFERRING TO CRIMINAL AND SUBVERSIVE ALIENS." 
(FN8)  BUT REFERENCE TO SUCH A GENERALIZED PURPOSE DOES LITTLE TO
PROMOTE RESOLUTION OF THE SPECIFIC PROBLEM BEFORE US, OF WHICH THERE
WAS ABSOLUTELY NO MENTION IN THE COMMITTEE REPORTS OR OTHER LEGISLATIVE
MATERIALS CONCERNING SEC 241(A)(4).  (FN9) 

ALTHOUGH NO LEGISLATIVE HISTORY ILLUMINES OUR PROBLEM, CONSIDERABLE
LIGHT IS FORTHCOMING FROM ANOTHER PROVISION OF THE STATUTE ITSELF. 
PROVIDES THAT DEPORTATION SHALL NOT TAKE PLACE "IF THE COURT SENTENCING
SUCH ALIEN FOR SUCH CRIME SHALL MAKE, AT THE TIME OF FIRST IMPOSING
JUDGMENT OR PASSING SENTENCE, OR WITHIN THIRTY DAYS THEREAFTER, A
RECOMMENDATION  ...  THAT SUCH ALIEN NOT BE DEPORTED."  (FN10)  AS
ANOTHER COURT HAS CORRECTLY OBSERVED, "IT SEEMS PLAIN THAT THE
QUALIFYING PROVISIONS OF SUBSECTION (B) ARE AN IMPORTANT PART OF THE
LEGISLATIVE SCHEME EXPRESSED IN SUBSECTION (A)(4).  WHILE THAT SECTION
MAKES A CONVICTION THERE REFERRED TO GROUND FOR DEPORTATION, IT IS
QUALIFIED IN AN IMPORTANT MANNER BY THE PROVISION OF SUBSECTION (B)(2)
THAT IF THE COURT SENTENCING THE ALIEN MAKES THE RECOMMENDATION
MENTIONED, THEN THE PROVISIONS OF SUBSECTION (A)(4) DO NOT APPLY." 
GUBBELS V. HOY, 261 F.2D 952, 954.  (FN11) 

YET IF SEC 241(A)(4) WERE CONSTRUED TO APPLY TO THOSE CONVICTED WHEN
THEY WERE NATURALIZED CITIZENS, THE PROTECTIVE PROVISIONS OF SEC
241(B)(2) WOULD, AS TO THEM, BECOME A DEAD LETTER.  A NATURALIZED
CITIZEN WOULD NOT "AT THE TIME OF FIRST IMPOSING JUDGMENT OR PASSING
SENTENCE," OR PRESUMABLY "WITHIN THIRTY DAYS THEREAFTER," BE AN "ALIEN"
WHO COULD SEEK TO INVOKE THE PROTECTIONS OF THIS SECTION OF THE LAW. 
UNTIL DENATURALIZED, HE WOULD STILL BE A CITIZEN FOR ALL PURPOSES, AND
A SENTENCING COURT WOULD LACK JURISDICTION TO MAKE THE RECOMMENDATION
PROVIDED BY SEC 241(B)(2).  (FN12)  WE WOULD HESITATE LONG BEFORE
ADOPTING A CONSTRUCTION OF SEC 241(A)(4) WHICH WOULD, WITH RESPECT TO
AN ENTIRE CLASS OF ALIENS, COMPLETELY NULLIFY A PROCEDURE SO INTRINSIC
A PART OF THE LEGISLATIVE SCHEME.  (FN13) 

IF, HOWEVER, DESPITE THE IMPACT OF SEC 241(B)(2), IT SHOULD STILL BE
THOUGHT THAT THE LANGUAGE OF SEC 241(A)(4) ITSELF AND THE ABSENCE OF
LEGISLATIVE HISTORY CONTINUED TO LEAVE THE MATTER IN SOME DOUBT, WE
WOULD NONETHELESS BE CONSTRAINED BY ACCEPTED PRINCIPLES OF STATUTORY
CONSTRUCTION IN THIS AREA OF THE LAW TO RESOLVE THAT DOUBT IN FAVOR OF
THE PETITIONER.  AS THE COURT HAS EMPHASIZED, "DEPORTATION IS A DRASTIC
MEASURE AND AT TIMES THE EQUIVALENT OF BANISHMENT OR EXILE, DELGADILLO
V. CARMICHAEL, 332 U.S. 388.  IT IS THE FORFEITURE FOR MISCONDUCT OF A
RESIDENCE IN THIS COUNTRY.  SUCH A FORFEITURE IS A PENALTY.  TO
CONSTRUE THIS STATUTORY PROVISION LESS GENEROUSLY TO THE ALIEN MIGHT
FIND SUPPORT IN LOGIC.  BUT SINCE THE STAKES ARE CONSIDERABLE FOR THE
INDIVIDUAL, WE WILL NOT ASSUME THAT CONGRESS MEANT TO TRENCH ON HIS
FREEDOM BEYOND THAT WHICH IS REQUIRED BY THE NARROWEST OF SEVERAL
POSSIBLE MEANINGS OF THE WORDS USED."  FONG HAW TAN V. PHELAN, 333 U.S.
6, 10. 

ADOPTION OF THE PETITIONER'S CONSTRUCTION OF SEC 241(A)(4) DOES NOT
END OUR INQUIRY, HOWEVER, FOR THE RESPONDENT URGES AFFIRMANCE OF THE
FINDING OF DEPORTABILITY ON AN ALTERNATIVE GROUND, NOT REACHED BY THE
COURT OF APPEALS.  THE ARGUMENT IS THAT THE PETITIONER IS DEPORTABLE
BECAUSE SEC 340(A) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952,
UNDER WHICH THE PETITIONER'S CITIZENSHIP WAS CANCELED, PROVIDES THAT AN
ORDER OF DENATURALIZATION "SHALL BE EFFECTIVE AS OF THE ORIGINAL DATE"
OF THE NATURALIZATION ORDER.  (FN14)  UNDER THIS SO-CALLED "RELATION
BACK" THEORY, IT IS SAID THAT CANCELLATION OF THE PETITIONER'S
CERTIFICATE OF NATURALIZATION WAS "EFFECTIVE" AS OF 1925, THE YEAR OF
HIS ORIGINAL NATURALIZATION, THAT HE WAS THEREFORE AN ALIEN AS A MATTER
OF LAW AT THE TIME OF HIS CONVICTIONS IN 1954, AND THAT HE IS
ACCORDINGLY DEPORTABLE UNDER SEC 241(A)(4) EVEN IF THAT PROVISION
REQUIRES ALIENAGE AT THE TIME OF THE CONVICTIONS. 

WE REJECT THIS THEORY FOR MUCH THE SAME REASONS WHICH HAVE PROMPTED
OUR CONSTRUCTION OF SEC 241(A)(4).  THERE IS NOTHING IN THE LANGUAGE OF
SEC 340(A), AND NOT A SINGLE INDICATION IN THE COPIOUS LEGISLATIVE
HISTORY OF THE 1952 ACT, TO SUGGEST THAT CONGRESS INTENDED THE RELATION
BACK LANGUAGE OF SEC 340(A) TO APPLY TO THE GENERAL DEPORTATION
PROVISIONS OF THE ACT.  IN VIEW OF THE COMPLETE ABSENCE OF ANY
INDICATION TO THE CONTRARY, IT WOULD APPEAR THAT IN ADOPTING THE
RELATION-BACK LANGUAGE OF SEC 340(A) CONGRESS INTENDED TO DO NO MORE
THAN TO CODIFY EXISTING CASE LAW.  SEVERAL CASES BEFORE 1952 HAD HELD
THAT AN ORDER OF DENATURALIZATION MADE THE ORIGINAL NATURALIZATION A
NULLITY, JOHANNESSEN V. UNITED STATES, 225 U.S. 227, AND THAT, FOR THE
PURPOSE OF DETERMINING RIGHTS OF DERIVATIVE CITIZENSHIP,
DENATURALIZATION RELATED BACK TO THE DATE OF NATURALIZATION. 
BATTAGLINO V. MARSHALL, 172 F.2D 979, 981; ROSENBERG V. UNITED STATES,
60 F.2D 475. 

THE SECOND CIRCUIT WAS ALONE AMONG THE FEDERAL COURTS IN THINKING
THAT THIS NUNC PRO TUNC CONCEPT WHICH HAD BEEN JUDICIALLY DEVELOPED IN
THE DENATURALIZATION CASES COULD PROPERLY BE RELATED TO THE TASK OF
CONSTRUING A DEPORTATION STATUTE.  EICHENLAUB V. WATKINS, 167 F.2D 659;
WILLUMEIT V. WATKINS, 171 F.2D 773.  AND WHEN THOSE CASES CAME HERE,
THIS COURT POINTEDLY DECLINED TO ADOPT THE SECOND CIRCUIT'S REASONING. 
EICHENLAUB V. SHAUGHNESSY, 338 U.S. 521, 529-530.  (FN15)  FOLLOWING
THIS COURT'S DECISION IN EICHENLAUB THE SIXTH CIRCUIT EXPRESSLY REFUSED
TO APPLY TO A GENERAL DEPORTATION STATUTE THE RELATION-BACK PRINCIPLE
OF THE DENATURALIZATION CASES, IN DETERMINING WHEN THERE HAD BEEN AN
"ENTRY" FOR PURPOSES OF THE PREDECESSOR OF SEC 241(A)(4) IN THE 1917
ACT.  BRANCATO V. LEHMANN, 239 F.2D 663.  (FN16) 

THE RELATION-BACK CONCEPT IS A LEGAL FICTION AT BEST, AND EVEN THE
RESPONDENT CONCEDES THAT IT CANNOT BE "MECHANICALLY APPLIED."  WITH
RESPECT TO DENATURALIZATION ITSELF, CONGRESS CLEARLY ADOPTED THE
CONCEPT IN ENACTING SEC 340(A).  BUT IN THE ABSENCE OF SPECIFIC
LEGISLATIVE HISTORY TO THE CONTRARY, WE ARE UNWILLING TO ATTRIBUTE TO
CONGRESS A PURPOSE TO EXTEND THIS FICTION TO THE DEPORTATION PROVISIONS
OF SEC 241(A)(4).  THIS COURT DECLINED TO APPLY THE FICTION IN A
DEPORTATION CONTEXT IN THE EICHENLAUB CASE, AND WE DECLINE TO DO SO
NOW.    THE ARGUMENT IS MADE THAT IT IS ANOMALOUS TO HOLD THAT A PERSON
FOUND TO HAVE PROCURED HIS NATURALIZATION BY WILLFUL MISREPRESENTATION
IS NOT SUBJECT TO DEPORTATION, ALTHOUGH HE WOULD BE DEPORTABLE IF HE
HAD NEVER BEEN NATURALIZED AT ALL.  BUT IT IS NOT AT ALL CERTAIN THAT
THIS PETITIONER WOULD BE DEPORTABLE TODAY IF HE HAD NEVER ACQUIRED
NATURALIZED CITIZENSHIP.  THE PETITIONER POINTS OUT THAT IF HE HAD HELD
ALIENAGE STATUS AT THE TIME OF HIS TRIAL FOR INCOME TAX EVASION, HE
COULD HAVE OFFERED TO PLEAD GUILTY TO ONE COUNT OF THE INDICTMENT IN
RETURN FOR A NOLLE PROSEQUI OF THE OTHER COUNTS, AND THAT CONVICTION ON
BUT ONE COUNT WOULD NOT HAVE MADE HIM SUBJECT TO DEPORTATION UNDER SEC
241(A)(4).  EVEN MORE IMPORTANT, HAD PETITIONER BEEN AN ALIEN AT THE
TIME OF HIS CONVICTIONS, HE COULD HAVE AVAILED HIMSELF OF THE
SUPPLEMENTARY RELIEF PROCEDURE PROVIDED FOR IN SEC 241(B)(2).  IN OTHER
WORDS, TO HOLD THAT UNDER THE RELATION-BACK LANGUAGE OF SEC 340(A) THE
PETITIONER WAS AN "ALIEN" AT THE TIME OF HIS CONVICTIONS WOULD GO MUCH
FURTHER THAN MERELY PREVENTING HIM FROM BENEFITING FROM HIS INVALID
NATURALIZATION; IT WOULD PUT HIM IN A MUCH MORE DISADVANTAGEOUS
POSITION THAN HE WOULD HAVE OCCUPIED IF HE HAD NEVER ACQUIRED A
NATURALIZATION CERTIFICATE AT ALL. 

MOREOVER, IF THE RELATION-BACK DOCTRINE WERE APPLICABLE IN THIS CASE,
IT WOULD BE APPLICABLE AS WELL, AS THE RESPONDENT'S COUNSEL CONCEDED IN
ORAL ARGUMENT, IN THE CASE OF ONE WHOSE ORIGINAL NATURALIZATION WAS NOT
FRAUDULENT, BUT SIMPLY LEGALLY INVALID UPON SOME TECHNICAL GROUND. 
(FN17) IN THIS AREA OF THE LAW, INVOLVING AS IT MAY THE EQUIVALENT OF
BANISHMENT OR EXILE, WE DO WELL TO ESCHEW TECHNICALITIES AND FICTIONS
AND TO DEAL INSTEAD WITH REALITIES.  THE REALITY IS THAT THE
PETITIONER'S CONVICTIONS OCCURRED WHEN HE WAS A NATURALIZED CITIZEN, AS
HE HAD BEEN FOR ALMOST 30 YEARS. 

IF CONGRESS HAD WANTED THE RELATION-BACK DOCTRINE OF SEC 340(A) TO
APPLY TO THE DEPORTATION PROVISIONS OF SEC 241(A)(4), AND THUS TO
RENDER NUGATORY AND MEANINGLESS FOR AN ENTIRE CLASS OF ALIENS THE
PROTECTIONS OF SEC 241(B)(2), CONGRESS COULD EASILY HAVE SAID SO.  BUT
THERE IS NO EVIDENCE WHATEVER THAT THE QUESTION WAS EVEN CONSIDERED. 
IF AND WHEN CONGRESS GIVES THOUGHT TO THE MATTER, IT MIGHT WELL DRAW
DISTINCTIONS BASED UPON THE GROUND FOR DENATURALIZATION, THE NATURE OF
THE CRIMINAL CONVICTIONS, AND THE TIME INTERVAL BETWEEN NATURALIZATION
AND CONVICTION, OR BETWEEN CONVICTION AND DENATURALIZATION.  (FN18)
BUT SUCH DIFFERENTIATIONS ARE NOT FOR THIS COURT TO MAKE.  REVERSED. 

FN1  "(A)  ANY ALIEN IN THE UNITED STATES (INCLUDING AN ALIEN
CREWMAN) SHALL, UPON THE ORDER OF THE ATTORNEY GENERAL, BE DEPORTED
WHO: 

     *        *         *         *         * 

"(4)  IS CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE COMMITTED
WITHIN FIVE YEARS AFTER ENTRY AND EITHER SENTENCED TO CONFINEMENT OR
CONFINED THEREFOR IN A PRISON OR CORRECTIVE INSTITUTION, FOR A YEAR OR
MORE, OR WHO AT ANY TIME AFTER ENTRY IS CONVICTED OF TWO CRIMES
INVOLVING MORAL TURPITUDE, NOT ARISING OUT OF A SINGLE SCHEME OF
CRIMINAL MISCONDUCT, REGARDLESS OF WHETHER CONFINED THEREFOR AND
REGARDLESS OF WHETHER THE CONVICTIONS WERE IN A SINGLE TRIAL;" 66 STAT.
204, AS AMENDED, 8 U.S.C. SEC 1251(A)(4). 

FN2  THE GRANT OF CERTIORARI WAS "LIMITED TO QUESTION 1 PRESENTED BY
THE PETITION WHICH READS AS FOLLOWS: 

"'WHETHER THE PROVISION OF SEC 241(A)(4) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952 FOR DEPORTATION OF AN "ALIEN  ...  WHO AT ANY
TIME AFTER ENTRY IS CONVICTED OF TWO CRIMES" APPLIES TO AN INDIVIDUAL
WHO WAS A NATURALIZED CITIZEN WHEN CONVICTED.'"  372 U.S. 975. 

FN3  THE RELEVANT PARAGRAPHS OF THE ACT OF MAY 10, 1920, READ AS
FOLLOWS: 

"  ...  THAT ALIENS OF THE FOLLOWING CLASSES, IN ADDITION TO THOSE
FOR WHOSE EXPULSION FROM THE UNITED STATES PROVISION IS MADE IN THE
EXISTING LAW, SHALL, UPON THE WARRANT OF THE SECRETARY OF LABOR, BE
TAKEN INTO HIS CUSTODY AND DEPORTED ...  IF THE SECRETARY OF LABOR,
AFTER HEARING, FINDS THAT SUCH ALIENS ARE UNDESIRABLE RESIDENTS OF THE
UNITED STATES, TO WIT: 

"(1)  ALL ALIENS WHO ARE NOW INTERNED UNDER SECTION 4067 OF THE
REVISED STATUTES  ...  . 

"(2)  ALL ALIENS WHO SINCE AUGUST 1, 1914, HAVE BEEN OR MAY HEREAFTER
BE CONVICTED OF ANY VIOLATION OR CONSPIRACY TO VIOLATE ANY OF THE
FOLLOWING ACTS  ...  NAMELY: 

"(A)  AN ACT ENTITLED 'AN ACT TO PUNISH ACTS OF INTERFERENCE WITH THE
FOREIGN RELATIONS, THE NEUTRALITY, AND THE FOREIGN COMMERCE OF THE
UNITED STATES, TO PUNISH ESPIONAGE, AND BETTER TO ENFORCE THE CRIMINAL
LAWS  ...  .'"  41 STAT. 593-594.  SEE 8 U.S.C. SEC 157 (1926 ED.). 

FN4  "THE PROPER SCOPE OF THE ACT OF 1920 AS APPLIED TO THESE CASES
IS FOUND IN THE ORDINARY MEANING OF ITS WORDS."  338 U.S., AT 527. 
"THE STATUTORY LANGUAGE WHICH SAYS THAT 'ALIENS WHO SINCE AUGUST 1,
1914, HAVE BEEN OR MAY HEREAFTER BE CONVICTED  ...  ' REFERS TO THE
REQUIREMENT THAT THE DEPORTATIONS BE APPLICABLE TO ALL PERSONS WHO HAD
BEEN CONVICTED OF CERTAIN ENUMERATED OFFENSES SINCE ABOUT THE BEGINNING
OF WORLD WAR I (AUGUST 1, 1914), WHETHER THOSE CONVICTIONS WERE HAD
BEFORE OR AFTER MAY 10, 1920."  338 U.S., AT 530. 

FN5  COMPARING THE "IS" OF SEC 241(A)(4) WITH THE VARIOUS FORMS OF
"BE" EMPLOYED IN OTHER SUBSECTIONS OF SEC 241(A) IS HARDLY HELPFUL.  IT
IS AS LIKELY THAT THE DIFFERENCES IN WORDING FOUND IN THESE SUBSECTIONS
REFLECT DIFFERENCES IN STYLE ATTRIBUTABLE TO THE VARIOUS ANTECEDENTS OF
THE SEVERAL PROVISIONS, AS IT IS THAT THE USE OF THE PRESENT TENSE IN
SEC 241(A)(4) REFLECTS A SPECIFIC CONGRESSIONAL INTENT THAT THAT
PARTICULAR SUBSECTION, IN CONTRAST TO THE OTHERS, WAS NOT TO BE APPLIED
TO PEOPLE IN THE PETITIONER'S POSITION. 

FN6  8 U.S.C. SEC 1182(A)(9). 

FN7  8 U.S.C. SEC 1251(A)(1). 

FN8  SEE COMMENTARY ON THE IMMIGRATION AND NATIONALITY ACT, WALTER M.
BESTERMAN, LEGISLATIVE ASSISTANT TO THE HOUSE COMMITTEE ON THE
JUDICIARY, 8 U.S.C.A., PT. I, P. 61.  THIS COMMENTATOR MAKES NO
REFERENCE TO THE PROBLEM BEFORE US, ALTHOUGH HE DOES REFER TO SEVERAL
INNOVATIONS IN THE ACT BROADENING ITS SCOPE:  "MANY OF THE GROUNDS FOR
DEPORTATION SPECIFIED IN THE NEW LAW ARE RETROACTIVE IN EFFECT.  THEY
APPLY TO THE ALIEN NOTWITHSTANDING THE FACT THAT HE MAY HAVE ENTERED
THE UNITED STATES PRIOR TO THE ENACTMENT OF THE 1952 LAW.  ALSO, HE MAY
BE FOUND NOW TO BE DEPORTABLE BY REASON OF FACTS WHICH OCCURRED PRIOR
TO THE ENACTMENT OF THIS ACT (JUNE 27, 1952)."  BESTERMAN, IBID. 

FN9  SEE H.R. REP. NO. 1365, 82D CONG., 2D SESS., 60 (1952); S. REP.
NO. 1515, 81ST CONG., 2D SESS., 390-392 (1950); S. REP. NO. 1137, 82D
CONG., 2D SESS., 21 (1952); H.R.  REP. NO. 2096 (CONFERENCE REPORT),
82D CONG., 2D SESS., 127 (1952).  SEE ALSO IMMIGRATION AND
NATURALIZATION SERVICE, ANALYSIS OF S. 3455, 81ST CONG., 2D SESS.
(1950), VOL. 5, PP. 241-3 THROUGH 241-6; AND ANALYSIS OF S. 716, 82D
CONG., 1ST SESS. (1951), VOL. 4, PP. 241-2 THROUGH 241-4.  SEE
GENERALLY, BESTERMAN, NOTE 8, SUPRA, PP. 1-91. 

FN10  "THE PROVISIONS OF SUBSECTION (A)(4) OF THIS SECTION RESPECTING
THE DEPORTATION OF AN ALIEN CONVICTED OF A CRIME OR CRIMES SHALL NOT
APPLY  ...  (2) IF THE COURT SENTENCING SUCH ALIEN FOR SUCH CRIME SHALL
MAKE, AT THE TIME OF FIRST IMPOSING JUDGMENT OR PASSING SENTENCE, OR
WITHIN THIRTY DAYS THEREAFTER, A RECOMMENDATION TO THE ATTORNEY GENERAL
THAT SUCH ALIEN NOT BE DEPORTED, DUE NOTICE HAVING BEEN GIVEN PRIOR TO
MAKING SUCH RECOMMENDATION TO REPRESENTATIVES OF THE INTERESTED STATE,
THE SERVICE, AND PROSECUTION AUTHORITIES, WHO SHALL BE GRANTED AN
OPPORTUNITY TO MAKE REPRESENTATIONS IN THE MATTER."  8 U.S.C. SEC
1251(B). 

FN11  IN GUBBELS THE COURT OF APPEALS FOR THE NINTH CIRCUIT HELD THAT
COURT-MARTIAL CONVICTIONS COULD NOT PROVIDE A BASIS FOR DEPORTATION
UNDER SEC 241(A)(4) BECAUSE A MILITARY COURT IS NOT SO CONSTITUTED AS
TO MAKE THE PRIVILEGE ACCORDED BY SEC 241(B)(2) AVAILABLE TO A
CONVICTED ALIEN. 

FN12  IT HAS BEEN SUGGESTED THAT THE PETITIONER, OR ONE SIMILARLY
SITUATED, WAS AT THE TIME OF THE CONVICTION CHARGEABLE WITH KNOWLEDGE
THAT HE HAD PROCURED HIS NATURALIZATION ILLEGALLY, AND THAT HE COULD
HAVE THEREFORE PROCEEDED TO SEEK A RECOMMENDATION FROM THE SENTENCING
JUDGE UNDER SEC 241(B)(2).  THIS SUGGESTION SEEMS NOT ONLY PRACTICALLY
UNREALISTIC BUT TECHNICALLY UNTENABLE.  IT HAS BEEN HELD THAT ONLY A
COMPETENT COURT IN APPROPRIATE PROCEEDINGS CAN NULLIFY A STATUS OF
NATURALIZED CITIZENSHIP.  UNITED STATES V. STEPHAN, 50 F. SUPP. 445. 

FN13  THE EICHENLAUB STATUTE CARRIED WITH IT NO SUCH QUALIFYING
PROVISION, WHICH REINFORCES THE CONCLUSION THAT THE DECISION IN
EICHENLAUB IS OF NO BASIC RELEVANCE TO THE ISSUE HERE.  SEE NOTE 3,
SUPRA.  SECTION 19 OF THE IMMIGRATION ACT OF 1917, 39 STAT. 874, THE
PREDECESSOR OF SEC 241(A)(4), ON THE OTHER HAND, DID CONTAIN A RELIEF
PROVISION SIMILAR TO SEC 241(B)(2).  SEE 39 STAT. 889-890. 

FN14  "IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT ATTORNEYS
FOR THE RESPECTIVE DISTRICTS ...  TO INSTITUTE PROCEEDINGS  ...  FOR
THE PURPOSE OF REVOKING AND SETTING ASIDE THE ORDER ADMITTING SUCH
PERSON TO CITIZENSHIP AND CANCELING THE CERTIFICATE OF NATURALIZATION
...  , AND SUCH REVOCATION AND SETTING ASIDE OF THE ORDER ADMITTING
SUCH PERSON TO CITIZENSHIP AND SUCH CANCELING OF CERTIFICATE OF
NATURALIZATION SHALL BE EFFECTIVE AS OF THE ORIGINAL DATE OF THE ORDER
AND CERTIFICATE, RESPECTIVELY  ...  ."  66 STAT.  260, 8 U.S.C. SEC
1451(A). 

FN15  THE COMPANION CASE, WILLUMEIT V. SHAUGHNESSY, WAS DECIDED IN
THE SAME OPINION.  338 U.S. 521. 

FN16  BRANCATO FIRST ENTERED THE UNITED STATES IN 1914; HE WAS
NATURALIZED IN 1929; HE THEN LEFT THE UNITED STATES AND RETURNED IN
1930; HE WAS CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE IN 1932; HE
WAS DENATURALIZED IN 1939.  THE QUESTION WAS WHETHER HIS CONVICTION IN
1932 WAS WITHIN FIVE YEARS AFTER AN "ENTRY," AS DEFINED BY THE
STATUTE.  THE COURT OF APPEALS HELD THAT THE CANCELLATION OF HIS
CITIZENSHIP IN 1939 RELATED BACK TO 1929 FOR PURPOSES OF
DENATURALIZATION, BUT NOT FOR PURPOSES OF THE DEPORTATION STATUTE, AND
THAT HIS RETURN TO THE UNITED STATES IN 1930 WAS THEREFORE NOT AN
"ENTRY" IN THAT YEAR. 

FN17  SECTION 340(A) WAS AMENDED IN 1961 TO PROVIDE FOR CANCELLATION
OF CITIZENSHIP ON THE GROUND THAT IT WAS "ILLEGALLY PROCURED."  ACT OF
SEPTEMBER 26, 1961, SEC 18, 75 STAT. 656.  IN BRANCATO V. LEHMANN, 239
F.2D 663, THE APPELLANT'S CITIZENSHIP HAD BEEN CANCELED BECAUSE HIS
ORIGINAL PETITION FOR NATURALIZATION "WAS NOT VERIFIED BY THE
AFFIDAVITS OF TWO CREDIBLE WITNESSES," AS REQUIRED BY THE 1906 ACT. 

FN18  SEE MR. JUSTICE FRANKFURTER'S DISSENTING OPINION IN EICHENLAUB
V. SHAUGHNESSY, 338 U.S., AT 533, 536-537. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE CLARK CONCURS, DISSENTING. 

IT HAS NOT BEEN CONTENDED, AND THE MAJORITY DOES NOT NOW HOLD, THAT
THERE IS A CONSTITUTIONAL IMPEDIMENT TO THE DEPORTATION OF AN ALIEN WHO
IS CONVICTED OF THE COMMISSION OF TWO CRIMES INVOLVING MORAL TURPITUDE,
REGARDLESS OF HIS CITIZENSHIP STATUS AT THE TIME THE CRIMES WERE
COMMITTED.  THE QUESTION IN THIS CASE IS WHETHER SECS 241 AND 340 OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952 MANIFEST A CONGRESSIONAL
INTENT TO ACHIEVE SUCH A RESULT.  I FIND THE COURT'S DECISION
INCONSISTENT WITH THE LANGUAGE OF THE STATUTE, WITH ITS HISTORY AND
BACKGROUND, AND WITH ANY REASONABLE PURPOSE WHICH CAN BE ASCRIBED TO
CONGRESS IN ENACTING IT.

                                   I. 

PETITIONER, BORN IN ITALY, ENTERED THE UNITED STATES AS AN ALIEN IN
1895, AND IN 1925 BECAME A NATURALIZED CITIZEN OF THIS COUNTRY.  IN
1954 HE WAS CONVICTED ON TWO SEPARATE COUNTS OF HAVING ATTEMPTED TO
DEFEAT AND EVADE THE PAYMENT OF INCOME TAXES BY FILING FALSE AND
FRAUDULENT RETURNS FOR THE YEARS 1948 AND 1949.  THE CONVICTIONS WERE
AFFIRMED BY THIS COURT.  COSTELLO V. UNITED STATES, 350 U.S. 359.  IN
1959 HIS CERTIFICATE OF NATURALIZATION WAS CANCELED ON THE GROUND THAT
IT HAD BEEN PROCURED BY WILLFUL MISREPRESENTATION, AND THIS JUDGMENT
WAS ALSO AFFIRMED.  COSTELLO V. UNITED STATES, 365 U.S. 265.  THE
UNITED STATES HAS NOW BROUGHT DEPORTATION PROCEEDINGS UNDER SEC
241(A)(4) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, WHICH
PROVIDES THAT: 

"ANY ALIEN IN THE UNITED STATES  ...  SHALL  ...  BE DEPORTED ...  WHO
AT ANY TIME AFTER ENTRY IS CONVICTED OF TWO CRIMES INVOLVING MORAL
TURPITUDE  ...  ." 

THIS DESCRIPTION OF THE DEPORTABLE ALIEN FITS COSTELLO EXACTLY AND
UNAMBIGUOUSLY.  HE IS AN ALIEN NOW AND WAS AN ALIEN AT THE TIME OF
ENTRY, AN ALIEN WHO "AT ANY TIME AFTER ENTRY IS CONVICTED OF TWO CRIMES
...  ."  THE ALL-EMBRACING LANGUAGE OF THE SECTION RECOGNIZES NO
EXCEPTION BASED UPON THE TIME THE CRIMES WERE COMMITTED. 

THE QUALIFICATION WHICH THE COURT CARVES OUT OF SEC 241(A)(4),
REQUIRING THAT THE CONVICTIONS OCCUR AT A TIME WHEN AN ALIEN IS NOT A
CITIZEN, IS NOT FOUND IN THE STATUTE ITSELF AND CAN BE ACHIEVED ONLY AT
THE EXPENSE OF THE PURPOSE OF THE STATUTE WHICH IS CLEARLY EVIDENT FROM
ITS TERMS AND HISTORY AND WHICH SHOULD CONTROL ITS CONSTRUCTION IF THE
COURT IS NOT TO STRAY FROM ITS JUDICIAL FUNCTION.  (FN1) 

PURSUANT TO ITS POWER, UNQUESTIONED HERE, TO PRESCRIBE THE CONDITIONS
FOR CONTINUED ALIEN PRESENCE IN THIS COUNTRY, CONGRESS HAS ENACTED SEC
241(A) WHICH EMBODIES A DETERMINATION THAT CERTAIN CLASSES OF ALIENS,
BY REASON OF THEIR ACTS AND CONDUCT, ARE NO LONGER DESIRABLE RESIDENTS
OF THIS COUNTRY.  THE SIGNIFICANCE OF THE PROVISION IN SEC 241(A)(4)
DEALING WITH ALIENS WHO, ANY TIME AFTER ENTRY, COMMIT TWO CRIMES
INVOLVING MORAL TURPITUDE IS THAT IN CONGRESS' JUDGMENT THE COMMISSION
OF TWO SUCH CRIMES IS INDICATIVE OF A CONFIRMED CRIMINAL TYPE FROM WHOM
THE PRIVILEGE OF REMAINING IN THIS COUNTRY IS TO BE WITHDRAWN.  THE
HOUSE COMMITTEE WHICH RECOMMENDED THE PREDECESSOR TO SEC 241(A)(4) IN
SEC 19 OF THE IMMIGRATION ACT OF 1917 AGREED UNANIMOUSLY THAT "THOSE
WHO COMMITTED A SECOND CRIME INVOLVING MORAL TURPITUDE SHOWED THEN A
CRIMINAL HEART AND CRIMINAL TENDENCY, AND THEY SHOULD BE DEPORTED."  53
CONG. REC. 5168.  IT IS NOT FOR US TO REASSESS THE WISDOM OF THIS
CONGRESSIONAL JUDGMENT, WHICH WAS REAFFIRMED IN THE 1952 ACT.  THE
FUNCTION OF THE DUAL CONVICTION STANDARD BEING TO IDENTIFY THOSE
INDIVIDUALS WHO ARE PRESUMED TO POSSESS LAWLESS PROPENSITIES AND WHO
ARE THEREFORE UNDESIRABLE, THE CIRCUMSTANCE OF NOMINAL CITIZENSHIP
STATUS AT THE TIME OF CONVICTION IS BESIDE THE POINT.    IN CERTAIN
RESPECTS SEC 241(A) REDEFINED THE CRITERIA FOR DEPORTABILITY.  UNDER
SUBSECTION (D), SEC 241 WAS TO BE APPLIED TO AN ALIEN EVEN THOUGH THE
CONDUCT WHICH PLACED HIM WITHIN A DEPORTABLE CLASS TOOK PLACE PRIOR TO
THE ENACTMENT OF THE SECTION AND EVEN THOUGH THAT CONDUCT WOULD NOT
HAVE FORFEITED RESIDENTIAL PRIVILEGES UNDER THE PREVIOUS LAW.  THIS WAS
THE HOLDING OF THE COURT IN LEHMANN V. CARSON, 353 U.S. 685, WHERE AN
ALIEN WAS HELD DEPORTABLE UNDER THE 1952 ACT FOR THE PRIOR COMMISSION
OF TWO CRIMES ALTHOUGH UNDER THE FORMER LAW A CONDITIONAL PARDON GIVEN
FOR ONE OF THEM WOULD HAVE SAVED THE ALIEN FROM DEPORTATION.  GIVEN
LEHMANN V. CARSON AND LIKE CASES UPHOLDING THE POWER OF CONGRESS TO
LEGISLATE IN THIS MANNER, (FN2) THE LEGISLATIVE INTENTION TO PROVIDE
CURRENT STANDARDS FOR DEPORTABILITY IS NOT TO BE FRUSTRATED BY
IMPORTING IRRELEVANT CONSIDERATIONS SUCH AS THE PREVIOUS STATE OF THE
LAW OR THE FACT OF TECHNICAL CITIZENSHIP AT THE TIME THE CRIMES WERE
COMMITTED.  NEITHER BEARS UPON THE QUESTION OF WHETHER THE ALIEN'S PAST
CONDUCT BRINGS HIM WITHIN THE PRESENT DEFINITION OF THE DEPORTABLE
ALIEN. 

COSTELLO IS AN ALIEN NOW, AND HIS CRIMINAL PROPENSITIES REMAIN THE
SAME EVEN THOUGH THE CRIMES FOR WHICH HE HAS BEEN CONVICTED WERE
COMMITTED WHILE HE WAS A NOMINAL CITIZEN.  NOR IS HIS PRESENT
UNDESIRABILITY DIMINISHED BY THE FACT THAT HIS CITIZENSHIP UPON WHICH
HE RELIES WAS OBTAINED BY FRAUD AND AT A TIME WHEN THE LAW, AS IT HAS
SINCE 1917, PROVIDED FOR DEPORTATION UPON THE COMMISSION OF TWO CRIMES
INVOLVING MORAL TURPITUDE. 

TODAY'S HOLDING HAS AN ANOMALOUS RESULT.  THE ALIEN WHO HAS NOT
BECOME A CITIZEN IS DEPORTABLE FOR THE COMMISSION OF TWO CRIMES.  BUT
NOT SO THE ALIEN WHO HAS COMMITTED TWO CRIMES AND HAS ALSO BEEN
DENATURALIZED FOR FRAUD PRACTICED IN PROCURING HIS CITIZENSHIP.  (FN3)
HIS FRAUD BECOMES HIS READY AND EFFECTIVE SHIELD, A RESULT WHICH I
CANNOT BELIEVE CONGRESS INTENDED TO ENACT INTO LAW. 

                   II. 

THE FOREGOING INTERPRETATION OF SEC 241(A)(4) IS FORTIFIED BY AN
EXAMINATION OF THE BACKGROUND AGAINST WHICH IT WAS ENACTED.  THE SAME
ISSUE THAT IS PRESENTED BY THE INSTANT CASE WAS RESOLVED BY THIS COURT
IN 1950, A LITTLE OVER TWO YEARS BEFORE THE FINAL PASSAGE OF THE 1952
IMMIGRATION AND NATIONALITY ACT, IN EICHENLAUB V. SHAUGHNESSY AND ITS
COMPANION CASE WILLUMEIT V. SHAUGHNESSY, 338 U.S. 521.  EICHENLAUB AND
WILLUMEIT WERE BOTH BORN IN GERMANY AND ENTERED THIS COUNTRY IN 1930
AND 1925, RESPECTIVELY.  IN THE 1930'S THEY WERE NATURALIZED, BUT THEIR
NATURALIZATION CERTIFICATES WERE CANCELED FOR FRAUD IN 1944.  IN 1941
AND 1942, DURING THE TIME THEY ENJOYED CITIZENSHIP STATUS, THEY HAD
BEEN CONVICTED OF VIOLATIONS OF THE ESPIONAGE ACT OF 1917.  THE
QUESTION WAS WHETHER THEY WERE DEPORTABLE UNDER THE ACT OF MAY 10,
1920, WHICH DECLARED DEPORTABLE AS UNDESIRABLE RESIDENTS: 

"ALL ALIENS WHO SINCE AUGUST 1, 1914, HAVE BEEN OR MAY HEREAFTER BE
CONVICTED (OF ANY VIOLATION OF THE ESPIONAGE ACT, AMONG OTHERS)." 

AS IN THE INSTANT CASE EICHENLAUB AND WILLUMEIT ARGUED THAT
DEPORTABILITY IS CONDITIONED ON ALIENAGE STATUS AT THE TIME OF
CONVICTION.  (FN4)  THIS COURT'S ANSWER TO THAT CONTENTION WAS: 

"IF THE ACT OF 1920 HAD BEEN INTENDED TO INITIATE THE DISTINCTION
HERE URGED BY THE RELATORS, IT IS LIKELY THAT THE CHANGE WOULD HAVE
BEEN MADE BY EXPRESS PROVISION FOR IT.  WE FIND NOTHING IN ITS
LEGISLATIVE HISTORY THAT SUGGESTS A CONGRESSIONAL INTENT TO DISTINGUISH
BETWEEN TWO SUCH GROUPS OF UNDESIRABLE CRIMINALS."  338 U.S., AT 532. 

WILLUMEIT ARGUED THAT SINCE THE ACT OF 1920 WAS OCCASIONED BY A
DESIRE TO RID THE COUNTRY OF TWO SPECIFIC GROUPS OF ENEMY ALIENS NOT
DEPORTABLE UNDER THEN EXISTING STATUTES, IT SHOULD BE NARROWLY
INTERPRETED.  THE COURT AGREED AS TO THE PURPOSE OF THE ACT BUT REACHED
A DIFFERENT CONCLUSION AS TO THE PRINCIPLE OF STATUTORY INTERPRETATION
WHICH FOLLOWED THEREFROM: 

"IT IS HARDLY CONCEIVABLE THAT, UNDER THOSE CIRCUMSTANCES, CONGRESS,
WITHOUT EXPRESSLY SAYING SO, INTENDED TO PREVENT ...  THE DEPORTATION
OF ALIEN OFFENDERS MERELY BECAUSE THEY HAD RECEIVED THEIR RESPECTIVE
CONVICTIONS AT TIMES WHEN THEY HELD CERTIFICATES OF NATURALIZATION,
LATER CANCELED FOR FRAUD.  TO DO SO WOULD PERMIT THE DENATURALIZED
ALIENS TO SET UP A CANCELED FRAUDULENT STATUS AS A DEFENSE, AND
SUCCESSFULLY TO CLAIM BENEFITS AND ADVANTAGES UNDER IT.  CONGRESS, IN
1920, EVIDENTLY WANTED TO PROVIDE A MEANS BY WHICH TO FREE THE UNITED
STATES OF RESIDENTS WHO (1) HAD BEEN OR THEREAFTER WERE CONVICTED OF
CERTAIN OFFENSES AGAINST THE SECURITY OF THE UNITED STATES, (2) HAD
BEEN OR THEREAFTER WERE FOUND, AFTER HEARING, TO BE UNDESIRABLE
RESIDENTS OF THE UNITED STATES, AND (3) BEING ALIENS WERE SUBJECT TO
DEPORTATION.  CONGRESS SAID JUST THAT."  ID., AT 532-533. 

THE EICHENLAUB CASE, DECIDED AT THE TIME THE 1952 ACT WAS UNDER
CONSIDERATION, CARRIED THE CLEAR MESSAGE THAT THE COURTS WOULD NOT
IMPUTE TO THE LEGISLATURE AN INTENT TO FAVOR TWICE-CONVICTED ALIENS
WHOSE CITIZENSHIP HAS BEEN CANCELED FOR FRAUD OVER THOSE WHO NEVER HELD
CITIZENSHIP STATUS AND THAT CONGRESS MUST SAY SO IF IT INTENDED TO
CREATE A DISTINCTION BASED ON CITIZENSHIP STATUS AT THE TIME OF
CONVICTION FOR CRIMES ON WHICH DEPORTATION PROCEEDINGS MIGHT BE BASED. 
IN THE FACE OF THIS MESSAGE CONGRESS PROCEEDED TO ENACT SEC 241(A)(4)
DECLARING THAT "ANY ALIEN  ...  SHALL  ... BE DEPORTED  ...  WHO AT ANY
TIME AFTER ENTRY IS CONVICTED OF TWO CRIMES INVOLVING MORAL
TURPITUDE."   (FN5)  EVEN IF AS A MATTER OF ABSTRACT ARGUMENT ABOUT THE
MEANING OF THESE WORDS THE MAJORITY'S OPINION IS DEFENSIBLE, WHICH I DO
NOT THINK IT IS, IT FAILS COMPLETELY AS A MATTER OF INTERPRETATION OF
THIS STATUTE IN THE CONTEXT OF ITS ENACTMENT. 

THE PETITIONER CONTENDS THAT EICHENLAUB IS DISTINGUISHABLE ON THE
GROUND THAT THE STATUTE IN THAT CASE APPLIED TO ALIENS WHO "HAVE BEEN
OR MAY HEREAFTER BE" CONVICTED, WHEREAS SEC 241(A)(4) REFERS TO ANY
ALIEN WHO "IS" CONVICTED.  HIS ARGUMENT IS THAT BY USE OF DUAL VERBS
THE STATUTE IN EICHENLAUB EXPLICITLY REFERRED TO TWO GROUPS OF ALIENS,
THOSE WHO WERE AND THOSE WHO WERE NOT CITIZENS WHEN CONVICTED.  IN HIS
VIEW, THEREFORE, THE DECISION IN EICHENLAUB MUST HAVE RESTED UPON THE
"HAVE BEEN" LEG OF THE STATUTE.  BUT BOTH THE MAJORITY AND THE DISSENT
IN EICHENLAUB RECOGNIZED THAT THE USE OF PAST AND PRESENT VERBS IN THE
1920 ACT WAS NECESSARY BECAUSE THAT ACT PROVIDED FOR TWO DEFINITE
PERIODS OF TIME - BETWEEN AUGUST 1, 1914, AND MAY 10, 1920; AND AFTER
1920 - IN WHICH THE CONVICTIONS MIGHT OCCUR.  (FN6)  THE COALESCENCE OF
TWO VERBS WAS THUS UNRELATED TO CITIZENSHIP STATUS AT THE TIME OF
CONVICTION.  (FN7)

           III. 

WHATEVER DOUBT AS TO CONGRESSIONAL INTENT THE MAJORITY MAY HAVE AFTER
EXAMINING SEC 241(A) STANDING ALONE SHOULD BE DISPELLED BY SEC 340(A)
OF THE IMMIGRATION AND NATIONALITY ACT, WHICH PROVIDES THAT REVOCATION
OF A NATURALIZATION CERTIFICATE RELATES BACK TO, AND IS DEEMED
"EFFECTIVE AS OF THE ORIGINAL DATE OF THE ORDER AND CERTIFICATE." 
(FN8)  UNDER THIS SECTION PETITIONER WAS NOT A CITIZEN IN 1954 BECAUSE
HE DID NOT BECOME A CITIZEN IN 1924.  IT IS THEREFORE USELESS TO TALK
ABOUT WHETHER SEC 241(A)(4) MAKES AN EXCEPTION FOR ALIENS WHO WERE
CITIZENS WHEN CONVICTED BECAUSE SEC 340 MAKES CLEAR THAT IN CONGRESS'
VIEW THEY WERE ALWAYS ALIENS.  THE DISTINCTION WHICH THE COURT READS
INTO SEC 241 IS A DISTINCTION WHICH SEC 340 DECLARES NONEXISTENT. 

THE COURT TAKES THE POSITION THAT THE RELATION-BACK PROVISION OF SEC
340(A) WAS INTENDED TO DEAL ONLY WITH PROBLEMS OF DERIVATIVE
CITIZENSHIP, HAVING NOTHING TO DO WITH DEPORTABILITY.  THE ARGUMENT IS
THAT PRIOR TO THE PASSAGE OF THE ACT THE JUDICIAL DOCTRINE OF RELATION
BACK WAS SO LIMITED, AND THAT THERE IS NO EVIDENCE THAT SEC 340 WAS
INTENDED TO EXPAND ITS COVERAGE.  I FIND BOTH BRANCHES OF THE ARGUMENT
UNTENABLE. 

PRIOR TO 1952 ROSENBERG V. UNITED STATES, 60 F.2D 475 (C.A. 3D CIR.
1932), AND BATTAGLINO V. MARSHALL, 172 F.2D 979 (C.A.2D CIR. 1949),
(FN9) HELD THAT MEMBERS OF A DENATURALIZED ALIEN'S FAMILY DERIVE
THROUGH HIM NO CITIZENSHIP RIGHTS BECAUSE "THE CERTIFICATE OF
NATURALIZATION WAS SIMPLY A PAPER FRAUD AND CONFERRED AT THE TIME OF
ITS GRANT NO RIGHTS WHATEVER  ...  ."  ROSENBERG V. UNITED STATES, 60
F.2D, AT 476.  BUT THE PRINCIPLE STATED IN THOSE CASES WAS BY NO MEANS
LIMITED TO PROBLEMS OF DERIVATIVE CITIZENSHIP, AS IS SHOWN BY THE
SECOND CIRCUIT'S DECISIONS IN EICHENLAUB V. WATKINS, 167 F.2D 659
(C.A.2D CIR. 1948), AFF'D SUB NOM. EICHENLAUB V. SHAUGHNESSY, 338 U.S.
521, AND WILLUMEIT V. WATKINS, 171 F.2D 773 (C.A.2D CIR. 1949), AFF'D
SUB NOM. EICHENLAUB V. SHAUGHNESSY, 338 U.S. 521.  THESE TWO CASES,
WHICH, AS SHOWN EARLIER, INVOLVED THE SAME ISSUE AS THE INSTANT CASE,
WERE DECIDED BY THE COURT OF APPEALS ON THE THEORY THAT "THE DECREE OF
DENATURALIZATION RELATES BACK, AT LEAST FOR THIS PURPOSE.  CF.
ROSENBERG V. UNITED STATES, 3 CIR., 60 F.2D 475."  (FN10)  ON APPEAL
THE DECISIONS WERE AFFIRMED ON OTHER GROUNDS, THE COURT FINDING IT
UNNECESSARY TO PASS ON THE RELATION-BACK ISSUE. 

THE DEVELOPMENT OF THE RELATION-BACK THEORY DID NOT GO UNNOTICED BY
CONGRESS.  SECTION 338(D) OF THE NATIONALITY ACT OF 1940 CONTAINED A
PROVISION SAVING DERIVATIVE CITIZENSHIP RIGHTS WHERE THE REVOCATION WAS
NOT OCCASIONED BY ACTUAL FRAUD.  AND IN A REPORT ON ITS STUDY OF THE
IMMIGRATION AND NATIONALITY LAWS PUBLISHED APRIL 20, 1950, THE SENATE
JUDICIARY COMMITTEE SUMMARIZED THEN-EXISTING LAW AS FOLLOWS: 

"THE EFFECT OF A DECREE OF DENATURALIZATION, AS DISTINGUISHED FROM
EXPATRIATION OR FORFEITURE OF CITIZENSHIP, IS TO DECLARE THAT THE
'NATURALIZED' PERSON NEVER WAS IN FACT NATURALIZED, BECAUSE EITHER BY
FRAUD OR ILLEGALITY THE STATUTORY PREREQUISITES WERE NOT MET.  THE
NATURALIZATION LAWS MAKE CERTAIN RESERVATIONS, SAVING THE
NATURALIZATION OF CHILDREN WHO DERIVE CITIZENSHIP FROM A PARENT FROM
THE ALIENAGE WHICH THEY WOULD OTHERWISE INCUR BECAUSE OF THE FRAUDULENT
OR ILLEGAL NATURALIZATION."  (FN11) 

ON THE SAME DAY THAT THE SENATE JUDICIARY COMMITTEE PUBLISHED ITS
REPORT, THE CHAIRMAN OF THAT COMMITTEE, SENATOR MCCARRAN, INTRODUCED AN
OMNIBUS BILL, S. 3455, DESIGNED TO INCORPORATE ALL IMMIGRATION AND
NATURALIZATION LAWS INTO ONE STATUTE.  THAT BILL DID NOT CONTAIN THE
GENERAL RELATION-BACK CLAUSE OF THE PRESENT SEC 340(A).  HOWEVER, SEC
339(F), SUBSTANTIALLY IDENTICAL TO SEC 340(F) OF THE BILL FINALLY
ENACTED, DID PROVIDE FOR THE CONSEQUENCES OF DENATURALIZATION UPON
DERIVATIVE RIGHTS.  HAD THIS BILL BEEN ENACTED, THEREFORE, THE
LEGISLATIVE RELATION-BACK RULE WOULD HAVE BEEN LIMITED TO DERIVATIVE
CITIZENSHIP MATTERS, THE PROBLEMS OF DEPORTATION BEING GOVERNED SOLELY
BY THE JUDICIAL DOCTRINE, WHICH WAS OF COURSE SUBJECT TO CHANGE BY THE
COURTS.  HOWEVER, SENATOR MCCARRAN'S NEXT BILL, S. 2055, INTRODUCED ON
AUGUST 27, 1951, CONTAINED NOT ONLY A DERIVATIVE CITIZENSHIP RELATION
BACK CLAUSE (NOW SEC 340(F)) SUCH AS HAD APPEARED IN THE EARLIER S.
3455, BUT ALSO THE GENERAL CLAUSE OF SEC 340(A). 

THE GOVERNMENT'S THEORY AS TO THE REASON FOR THIS CHANGE IS THAT
SINCE THIS COURT'S FAILURE TO PASS ON THE RELATION-BACK RULE IN
EICHENLAUB CAST DOUBT UPON ITS CONTINUING VITALITY AS A JUDICIAL
DOCTRINE, CONGRESS FELT CONSTRAINED TO INSURE AGAINST THE DOCTRINE'S
BEING LIMITED TO DERIVATIVE CITIZENSHIP QUESTIONS.  WHILE THIS IS A
REASONABLE SUGGESTION IT IS NEITHER EXPRESSLY SUPPORTED NOR REJECTED BY
THE LEGISLATIVE HISTORY.  THIS MUCH, HOWEVER, IS CLEAR:  PRIOR TO THE
PASSAGE OF THE 1952 ACT FOUR CASES IN THE COURTS OF APPEALS HAD APPLIED
THE RELATION-BACK PRINCIPLE; TWO OF THESE CASES DEALT WITH DERIVATIVE
CITIZENSHIP RIGHTS AND THE OTHER TWO WITH DEPORTABILITY.  THE 1952 ACT
NOT ONLY DEALT SPECIFICALLY WITH DERIVATIVE CITIZENSHIP BUT SEPARATELY
AND EXPRESSLY PROVIDED GENERALLY THAT DENATURALIZATION FOR CONCEALMENT
OR WILLFUL MISREPRESENTATION WAS TO BE EFFECTIVE AS OF THE DATE OF THE
NATURALIZATION ORDER.  CONGRESS THUS PROVIDED ITS OWN RELATION-BACK
DOCTRINE AND UNDER IT, UNLESS IT IS TO BE RENDERED MEANINGLESS,
COSTELLO NEVER LEGALLY BECAME A CITIZEN.  HE REMAINED AN ALIEN AND WAS
AN ALIEN WHEN HE WAS CONVICTED OF THE TWO CRIMES FOR WHICH HE HAS BEEN
ORDERED DEPORTED. 

                               IV. 

THE MAJORITY FINDS SUPPORT FOR ITS HOLDING IN SUPPOSED IMPLICATIONS
FROM THE RECOMMENDATION PROVISION OF SEC 241(B).  IN THE COURT'S VIEW
THE RECOMMENDATION PROVISION WAS INTENDED TO APPLY TO ALL CASES IN
WHICH AN ALIEN MIGHT BE DEPORTABLE UNDER SEC 241(A)(4); THE
UNAVAILABILITY OF THIS PROVISION TO ONE WHO WAS NOT AN ALIEN AT THE
TIME OF THE SECOND CONVICTION IS THEREFORE EVIDENCE THAT CONGRESS DID
NOT INTEND SUCH ALIENS TO BE DEPORTABLE, IT IS ASSERTED.  THE COURT
THUS HOLDS THAT THE AUTHORITY TO DEPORT UNDER SUBSECTION (A)(4) IS
LIMITED TO THOSE CASES IN WHICH THE DEPORTEE CAN INVOKE A
RECOMMENDATION AGAINST DEPORTATION. 

MY VIEW OF SEC 241(B) IS SOMEWHAT DIFFERENT.  CONGRESS DEFINED IN SEC
241(A) THE CRITERIA FOR DEPORTABILITY AND DESCRIBED THOSE CLASSES OF
ALIENS WHO WERE NO LONGER QUALIFIED TO STAY IN THIS COUNTRY BY REASON
OF THEIR PAST ACTS AND CONDUCT.  BUT IN THE CASE OF SEC 241(A)(4)
ALIENS, THOSE CONVICTED OF CRIMES INVOLVING MORAL TURPITUDE, CONGRESS
DID NOT MAKE ITS OWN JUDGMENT FINAL IN EVERY CASE.  ALTHOUGH THE ALIEN
MIGHT HAVE BEEN CONVICTED OF TWO SUCH CRIMES AND THEREFORE WOULD HAVE
FALLEN WITHIN THE SEC 241(A)(4) CATEGORY, THE SENTENCING JUDGE WAS
GIVEN THE POWER TO ORDER THAT THE ALINE NOT BE DEPORTED.  THE COURT'S
VIEW IS THAT DEPORTABILITY IN EVERY CASE MUST DEPEND UPON THE
OPPORTUNITY TO EXERCISE THE POWER GIVEN IN SEC 241(B), AS WELL AS UPON
ITS ACTUAL EXERCISE TO FORBID DEPORTATION.  BUT I THINK THE COURT
MISCONCEIVES THE SCOPE AND INTENT OF SEC 241(B), WHICH IS NOT
COEXTENSIVE WITH SEC 241(A)(4) AND WHICH HAS NOTHING TO DO WITH THE
COVERAGE OF THE LATTER SECTION.    SECTION 241(A)(4) SPEAKS IN GENERAL
TERMS AND SEEMS TO APPLY TO POSTENTRY CONVICTIONS FOR ANY TWO CRIMES
INVOLVING MORAL TURPITUDE.  BUT THERE ARE OTHER PARAGRAPHS OF SEC
241(A) WHICH SPECIFY PARTICULAR CRIMES IN THEMSELVES JUSTIFYING
DEPORTATION.  SOME OF THESE CRIMES MAY NOT INVOLVE MORAL TURPITUDE;
OTHERS MAY, AND THEREFORE FALL WITHIN THE LITERAL LANGUAGE OF SEC
241(A)(4).  A RECOMMENDATION AGAINST DEPORTATION OF ALIENS CONVICTED OF
THESE LATTER CRIMES IS NONETHELESS INEFFECTIVE, EITHER BECAUSE
SUBSECTION (B) EXPLICITLY EXCLUDES THE CRIME FROM ITS COVERAGE, AS IN
THE CASE OF NARCOTICS OFFENSES, (FN12) OR BECAUSE THE OFFENSE IS
SEPARATELY LISTED IN A SUBSECTION OTHER THAN SEC 241(A)(4).  (FN13)
OBVIOUSLY, THEREFORE, CONGRESS DID NOT INTEND JUDICIAL REVIEW OF
DEPORTABILITY IN EVERY CASE WHERE THE COMMISSION OF CRIME, WHETHER
INVOLVING MORAL TURPITUDE OR NOT, IS THE BASIS OF THE ACTION. 

MOREOVER, THERE ARE OTHER SITUATIONS WITHIN SEC 241(A)(4) WHERE SEC
241(B) PROCEDURES ARE UNAVAILABLE AND DEPORTATION NEVERTHELESS MUST
FOLLOW.  UNDER SEC 241(A)(4) DEPORTATION MAY BE BASED UPON POSTENTRY
CONVICTIONS WHETHER OCCURRING IN THIS COUNTRY OR ABROAD.  THE
REQUIREMENT OF THE PRIOR LAW THAT POSTENTRY CRIMES BE COMMITTED IN THIS
COUNTRY WAS ELIMINATED IN THE 1952 ACT.  (FN14)  IT SEEMS OBVIOUS THAT
SEC 241(B) PROCEDURES WOULD BE UNAVAILABLE IN THOSE CASES WHERE THE
CRIMES ARE COMMITTED ABROAD; YET IT IS DIFFICULT TO BELIEVE THAT
DEPORTATION IS PROSCRIBED IN THOSE CASES.  THIS WAS THE VIEW OF THE
COURT OF APPEALS FOR THE THIRD CIRCUIT UNDER THE PRIOR LAW WHERE THE
PROVISION FOR DEPORTATION FOR CRIMES COMMITTED ABROAD PRIOR TO ENTRY
(FN15) WAS OSTENSIBLY SUBJECT TO THE TERMS OF SEC 241(B)'S PREDECESSOR
PROVIDING THE SAME BROAD JUDICIAL VETO.  (FN16) 

I THINK COSTELLO'S IS ANOTHER CASE IN WHICH CONGRESS COULD NOT HAVE
INTENDED THE UNAVAILABILITY OF SEC 241(B) PROCEDURES TO BAR
DEPORTATION.  UNDER THE COURT'S VIEW NO DENATURALIZED ALIEN CAN BE
DEPORTED FOR THE COMMISSION OF TWO OR MORE CRIMES WHILE A CITIZEN. 
CONGRESS INTENDED NO SUCH RESULT.  IT INTENDED, AS SEC 241(B) EXPRESSLY
SAYS, TO BAR DEPORTATION ONLY WHEN THERE WAS A JUDICIAL DETERMINATION
OF NONDEPORTABILITY.  THERE IS NONE HERE.  IN COSTELLO'S CASE, AND
THOSE LIKE IT, THE JUDGE HAS NO OPPORTUNITY TO EXERCISE HIS POWER UNDER
SEC 241(B) BECAUSE THE CONVICTED DEFENDANT, ACTUALLY AN ALIEN UNDER THE
LAW, APPEARS BEFORE HIM WITH A CERTIFICATE OF CITIZENSHIP, OBTAINED BY
HIS OWN FRAUD, AND PREFERS TO CONTINUE THE MASQUERADE AND TO CLAIM THE
PROTECTIONS OF CITIZENSHIP.  IN THESE CIRCUMSTANCES, THE LACK OF
JUDICIAL CONSIDERATION OF COSTELLO'S DEPORTABILITY SHOULD NOT BE
EQUATED TO A JUDGE'S DETERMINATION OF NONDEPORTABILITY.  THIS IS
ESPECIALLY TRUE HERE SINCE COSTELLO KNEW OF THE DENATURALIZATION
PROCEEDINGS WHICH HAD BEEN INSTITUTED AGAINST HIM PRIOR TO HIS TWO
CONVICTIONS FOR TAX FRAUD.  (FN17) 

SINCE I FIND NO INCONSISTENCY BETWEEN THE LANGUAGE, BACKGROUND AND
PURPOSE OF SEC 241(A)(4) ON THE ONE HAND, AND IMPLICATIONS FROM SEC
241(B) ON THE OTHER, I REGARD THE COURT'S RELIANCE ON FONG HAW TAN V.
PHELAN, 333 U.S. 6, AS MISPLACED.  I HAVE NO QUARREL WITH THE DOCTRINE
THAT WHERE THE COURT IS UNABLE TO DISCERN THE INTENT OF CONGRESS,
AMBIGUITIES SHOULD BE RESOLVED IN FAVOR OF THE DEPORTEE, BUT HERE THERE
IS A CLEAR EXPRESSION OF CONGRESSIONAL PURPOSE.  I WOULD CARRY IT OUT. 

FN1  THIS COURT HAS REPEATEDLY STRESSED THE PRINCIPLE THAT IN
CONSTRUING STATUTES "THE GENERAL PURPOSE IS A MORE IMPORTANT AID TO THE
MEANING THAN ANY RULE WHICH GRAMMAR OR FORMAL LOGIC MAY LAY DOWN." 
UNITED STATES V. WHITRIDGE, 197 U.S. 135, 143.  SEE UNITED STATES V.
SHIREY, 359 U.S. 255, 260-261; UNITED STATES V. CIO, 335 U.S. 106, 112;
UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 543; OZAWA V.
UNITED STATES, 260 U.S. 178, 194. 

FN2  MARCELLO V. BONDS, 349 U.S. 302; GALVAN V. PRESS, 347 U.S. 522;
HARISIADES V. SHAUGHNESSY, 342 U.S. 580; MAHLER V. EBY, 264 U.S. 32; NG
FUNG HO V. WHITE, 259 U.S. 276; BUGAJEWITZ V. ADAMS, 228 U.S. 585. 

FN3  THE COURT POINTS OUT THAT THERE MAY BE CASES IN WHICH THIS
ANOMALY WILL NOT RESULT.  THIS OBSERVATION DOES NOT ALTER THE FACT THAT
IT DOES EXIST IN THIS CASE, AND WILL EXIST IN ALL CASES WHERE THE
REVOCATION OF THE NATURALIZATION CERTIFICATE IS FOR FRAUDULENT
CONDUCT. 

FN4  DR. WILLUMEIT CONTENDED THAT:  "THE LANGUAGE SHOWS THAT THE
ALIEN MUST BE AN 'ALIEN' AT THE TIME THAT HE 'MAY  ...  BE CONVICTED.' 
THE USE OF THE WORDS 'ALIENS WHO MAY BE' CONVICTED INDICATES THAT THE
ALIEN MUST 'BE' AN ALIEN AT THE TIME OF THE CONVICTION.  THERE IS NO
OTHER GRAMMATICAL POSSIBILITY."  BRIEF FOR THE PETITIONER, WILLUMEIT V.
SHAUGHNESSY, NO. 82, OCTOBER TERM, 1949, P. 7. 

FN5  THE SUBCOMMITTEES OF THE HOUSE AND SENATE JUDICIARY COMMITTEES
WERE AWARE OF THE EICHENLAUB DECISION AND OF ITS BEARING ON SEC
241(A)(4) OF THE PENDING STATUTE.  IN ANSWER TO THE OBJECTION THAT
CERTAIN PROVISIONS OF THE PROPOSED STATUTE WERE EX POST FACTO AND
THEREFORE UNCONSTITUTIONAL, MR. RICHARD ARENS, STAFF DIRECTOR OF THE
SENATE SUBCOMMITTEE ON S. 716 STATED: 

"WHAT DO YOU MEAN BY EX POST FACTO LEGISLATION?  DOES NOT THE TERM
'EX POST FACTO' BY ITS HISTORICAL ORIGIN AND BY THE PRONOUNCEMENTS OF
THE COURT IN SUCH CASES AS EICHENLAUB V. SHAUGHNESSY AND THESE OTHER
CASES, INCLUDING THE EBY CASE TO WHICH WE ALLUDED A FEW MOMENTS AGO,
ESTABLISH BEYOND PERADVENTURE OF DOUBT THAT THAT EX POST FACTO HAS NO
APPLICABILITY TO AN IMMIGRATION PROCEDURE?" 

JOINT HEARINGS BEFORE THE SUBCOMMITTEES OF THE COMMITTEES ON THE
JUDICIARY, CONGRESS OF THE UNITED STATES, 82D CONG., 1ST SESS., ON S.
716, H.R. 2379, AND H.R. 2816, AT 694. 

FN6  THE OPINION OF THE COURT OBSERVED:  "THE STATUTORY LANGUAGE
WHICH SAYS THAT 'ALIENS WHO SINCE AUGUST 1, 1914, HAVE BEEN OR MAY
HEREAFTER BE CONVICTED  ...  ' REFERS TO THE REQUIREMENT THAT THE
DEPORTATIONS BE APPLICABLE TO ALL PERSONS WHO HAD BEEN CONVICTED OF
CERTAIN ENUMERATED OFFENSES SINCE ABOUT THE BEGINNING OF WORLD WAR I
(AUGUST 1, 1914), WHETHER THOSE CONVICTIONS WERE HAD BEFORE OR AFTER
MAY 10, 1920."  338 U.S., AT 530. 

AND THE DISSENT STATES:  "THE ACT OF MAY 10, 1920, PROVIDES THAT 'ALL
ALIENS WHO SINCE AUGUST 1, 1914, HAVE BEEN OR MAY HEREAFTER BE
CONVICTED' OF CERTAIN OFFENSES SHALL BE DEPORTED UPON A FINDING THAT
THEY ARE 'UNDESIRABLE RESIDENTS OF THE UNITED STATES.'  SINCE NEITHER
OF THE PETITIONERS HEREIN WAS FOUND TO 'HAVE BEEN' CONVICTED OF ANY
OFFENSE BEFORE PASSAGE OF THE ACT, THEY COME, IT IS URGED, WITHIN THE
ALTERNATIVE PREREQUISITE."  338 U.S., AT 534. 

FN7  PETITIONER ALSO ARGUES THAT THE ABSENCE OF A "HAS BEEN"
PROVISION IN SEC 241(A)(4) IS SIGNIFICANT BECAUSE OF THE FACT THAT MOST
OF THE OTHER GROUNDS FOR DEPORTATION BASED ON PAST CONDUCT ARE STATED
IN THE ALTERNATIVE PERFECT AND INDICATIVE VERB FORMS:  "IS OR HAS
BEEN," OR "IS OR SHALL HAVE BEEN."  IN PETITIONER'S VIEW THE REASON FOR
THIS DISTINCTION IS THAT UNDER THE "IS OR HAS BEEN" PARAGRAPHS,
CITIZENSHIP STATUS AT THE TIME OF THE ACT OR EVENT IS IRRELEVANT, BUT
THE "IS" LANGUAGE OF PARAGRAPH (4) AUTHORIZES DEPORTATION ONLY IF
ALIENAGE STATUS AND THE BASIS FOR DEPORTABILITY COINCIDE IN TIME.  THIS
DICHOTOMY OF DEPORTABILITY TESTS WOULD MEAN THAT A DENATURALIZED ALIEN
COULD BE DEPORTED FOR BEING CONVICTED OF CARRYING A SAWED-OFF SHOTGUN,
OR BEING CONNECTED WITH THE MANAGEMENT OF A HOUSE OF PROSTITUTION
DURING THE TIME HE WAS A CITIZEN, BUT NOT FOR TWO CONVICTIONS OF CRIMES
INVOLVING MORAL TURPITUDE.  THE ABSURDITY OF IMPUTING TO CONGRESS THE
INTENT TO ACHIEVE SUCH A RESULT IS TOO OBVIOUS TO REQUIRE MORE. 

FN8  "IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT ATTORNEYS
FOR THE RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD CAUSE
THEREFOR, TO INSTITUTE PROCEEDINGS  ...  FOR THE PURPOSE OF REVOKING
AND SETTING ASIDE THE ORDER ADMITTING SUCH PERSON TO CITIZENSHIP AND
CANCELING THE CERTIFICATE OF NATURALIZATION ON THE GROUND THAT SUCH
ORDER AND CERTIFICATE OF NATURALIZATION WERE PROCURED BY CONCEALMENT OF
A MATERIAL FACT OR BY WILLFUL MISREPRESENTATION, AND SUCH REVOCATION
AND SETTING ASIDE OF THE ORDER ADMITTING SUCH PERSON TO CITIZENSHIP AND
SUCH CANCELING OF CERTIFICATE OF NATURALIZATION SHALL BE EFFECTIVE AS
OF THE ORIGINAL DATE OF THE ORDER AND CERTIFICATE  ...  ." 

FN9  REVOCATION OF FRAUDULENTLY OBTAINED NATURALIZATION CERTIFICATES
WAS AUTHORIZED BY STATUTE IN 1906; HOWEVER, NOT UNTIL THE 1952 ACT WAS
THERE AN EXPRESS STATUTORY PROVISION THAT REVOCATIONS WERE TO HAVE
RETROACTIVE EFFECT.  THE JUDICIAL DOCTRINE OF RELATION-BACK DEVELOPED
IN THE INTERIM.  ALTHOUGH ROSENBERG WAS THE FIRST CASE TO APPLY THE
DOCTRINE, DICTUM IN THIS COURT'S DECISIONS AS EARLY AS 1912 IMPLIED ITS
EXISTENCE.  IN JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 240-241,
THIS COURT CITED WITH APPROVAL THE FOLLOWING LANGUAGE FROM A LOWER
COURT OPINION:  "IT IS THE APPLICANT'S PROVINCE, AND HE IS BOUND, TO
SEE THAT THE JURISDICTIONAL FACTS UPON WHICH THE GRANT IS PREDICATED
ACTUALLY EXIST, AND IF THEY DO NOT HE TAKES NOTHING BY HIS PAPER
GRANT."  CF. LURIA V. UNITED STATES, 231 U.S. 9, 24. 

FN10  EICHENLAUB V. WATKINS, 167 F.2D 659, 660. 

FN11  S. REP. NO. 1515, 81ST CONG., 2D SESS., P. 755. 

FN12  SUBSECTION (B) STATES: 

"THE PROVISIONS OF SUBSECTION (A)(4) OF THIS SECTION RESPECTING THE
DEPORTATION OF AN ALIEN CONVICTED OF A CRIME OR CRIMES SHALL NOT APPLY
...  IF THE COURT SENTENCING SUCH ALIEN FOR SUCH CRIME SHALL MAKE, AT
THE TIME OF FIRST IMPOSING JUDGMENT OR PASSING SENTENCE, OR WITHIN
THIRTY DAYS THEREAFTER, A RECOMMENDATION TO THE ATTORNEY GENERAL THAT
SUCH ALIEN NOT BE DEPORTED, DUE NOTICE HAVING BEEN GIVEN PRIOR TO
MAKING SUCH RECOMMENDATION TO REPRESENTATIVES OF THE INTERESTED STATE,
THE SERVICE, AND PROSECUTION AUTHORITIES, WHO SHALL BE GRANTED AN
OPPORTUNITY TO MAKE REPRESENTATIONS IN THE MATTER.  THE PROVISIONS OF
THIS SUBSECTION SHALL NOT APPLY IN THE CASE OF ANY ALIEN WHO IS CHARGED
WITH BEING DEPORTABLE FROM THE UNITED STATES UNDER SUBSECTION (A)(11)
OF THIS SECTION."  8 U.S.C. SEC 1251(B). 

FN13  SEE JEW TEN V. IMMIGRATION AND NATURALIZATION SERVICE, 307 F.2D
832 (C.A. 9TH CIR.).  CF. UNITED STATES EX REL. DE LUCA V. O'ROURKE,
213 F.2D 759 (C.A. 8TH CIR.); EX PARTE ROBLES-RUBIO, 119 F. SUPP. 610
(D.C.N.D. CAL.). 

FN14  SECTION 19 OF THE 1917 ACT SPECIFIED THREE CATEGORIES OF ALIENS
DEPORTABLE BECAUSE OF CONVICTION FOR CRIMES INVOLVING MORAL TURPITUDE. 
THE CLASSES OF ALIENS INVOLVED WERE THE FOLLOWING:

(1)  "ANY ALIEN WHO IS HEREAFTER SENTENCED TO IMPRISONMENT FOR A TERM
OF ONE YEAR OR MORE BECAUSE OF CONVICTION IN THIS COUNTRY OF A CRIME
INVOLVING MORAL TURPITUDE, COMMITTED WITHIN FIVE YEARS AFTER THE ENTRY
OF THE ALIEN TO THE UNITED STATES." 

(2)  "ANY ALIEN WHO IS HEREAFTER SENTENCED MORE THAN ONCE TO SUCH A
TERM OF IMPRISONMENT BECAUSE OF CONVICTION IN THIS COUNTRY OF ANY CRIME
INVOLVING MORAL TURPITUDE, COMMITTED AT ANY TIME AFTER ENTRY." 

(3)  "ANY ALIEN WHO WAS CONVICTED, OR WHO ADMITS THE COMMISSION,
PRIOR TO ENTRY, OF A FELONY OR OTHER CRIME OR MISDEMEANOR INVOLVING
MORAL TURPITUDE." 

UNDER THE 1952 ACT SEC 241(A)(4) DOES NOT DEAL WITH DEPORTATION FOR
CRIMES COMMITTED PRIOR TO ENTRY, BUT THE PHRASE "IN THIS COUNTRY,"
QUALIFYING POSTENTRY CONVICTIONS HAS BEEN ELIMINATED.  AS ORIGINALLY
INTRODUCED BY SENATOR MCCARRAN, S. 2055 SHOWED ON ITS FACE THAT
DEPORTABILITY FOR CONVICTION OF TWO CRIMES INVOLVING MORAL TURPITUDE
WAS NOT PREDICATED ON CONVICTIONS OBTAINED IN THIS COUNTRY.  SECTION
241(A)(4) OF THAT BILL READ: 

"ANY ALIEN IN THE UNITED STATES  ...  SHALL  ...  BE DEPORTED WHO: 

     *         *         *         *         * 

"WITHIN FIVE YEARS AFTER ENTRY IS CONVICTED OF A CRIME INVOLVING
MORAL TURPITUDE AND EITHER SENTENCED TO CONFINEMENT OR CONFINED
THEREFOR IN A PRISON OR CORRECTIVE INSTITUTION FOR A YEAR OR MORE, OR
WHO AT ANY TIME AFTER ENTRY IS CONVICTED OF TWO CRIMES INVOLVING MORAL
TURPITUDE, NOT ARISING OUT OF A SINGLE SCHEME OF CRIMINAL MISCONDUCT,
REGARDLESS OF WHETHER CONFINED THEREFOR AND REGARDLESS OF WHETHER THE
CONVICTIONS WERE IN A SINGLE TRIAL; OR AT ANY TIME AFTER ENTRY IS
CONVICTED IN THE UNITED STATES OF ANY CRIMINAL OFFENSE, NOT
COMPREHENDED WITHIN ANY OF THE FOREGOING, IF THE ATTORNEY GENERAL IN
HIS DISCRETION CONCLUDES THAT THE ALIEN IS AN UNDESIRABLE RESIDENT OF
THE UNITED STATES." 

THE CLAUSE AUTHORIZING DEPORTATION IN THE DISCRETION OF THE ATTORNEY
GENERAL FOR CONVICTION IN THE UNITED STATES OF ANY CRIMINAL OFFENSE WAS
ELIMINATED AFTER A CONFERENCE BETWEEN SENATORS MCCARRAN AND HUMPHREY. 
98 CONG. REC. 5756, 5758. 

FN15  RASMUSSEN V. ROBINSON, 163 F.2D 732, 734 (C.A. 3D CIR.), STATED
THAT: 

"THIS PORTION OF THE STATUTE PROVIDES THAT THE RECOMMENDATION SHALL
BE MADE TO THE 'ATTORNEY GENERAL'.  THE 'ATTORNEY GENERAL' REFERRED TO
IS THE ATTORNEY GENERAL OF THE UNITED STATES.  THE 'RECOMMENDATION' IS
MANDATORY UPON HIM  ...  .  IT FOLLOWS THAT THE JUDGES WHO ARE TO MAKE
THE RECOMMENDATION ARE TO BE JUDGES OF COURTS OF THE UNITED STATES OR
OF THE STATES FOR CONGRESS CERTAINLY DID NOT INTEND TO IMPOSE THE
MANDATE OF A FOREIGN JUDICIARY ON THE ATTORNEY GENERAL OF THE UNITED
STATES.  THIS MEANS THAT CRIMES COMMITTED PRIOR TO ENTRY, NOT WITHIN
THE UNITED STATES, ARE NOT WITHIN THE PROVISO, BUT CRIMES COMMITTED BY
AN ALIEN, IN THE UNITED STATES, PRIOR TO ENTRY, ARE WITHIN THE
PROVISO."  CF. UNITED STATES V. HUGHES, 116 F.2D 613 (C.A. 3D CIR.). 
FN16  SECTION 19 OF THE 1917 ACT PROVIDED: 

"THE PROVISION OF THIS SECTION RESPECTING THE DEPORTATION OF ALIENS
CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE SHALL NOT APPLY TO ONE
WHO HAS BEEN PARDONED, NOR SHALL SUCH DEPORTATION BE MADE OR DIRECTED
IF THE COURT, OR JUDGE THEREOF, SENTENCING SUCH ALIEN FOR SUCH CRIME
SHALL, AT THE TIME OF IMPOSING JUDGMENT OR PASSING SENTENCE  ...  MAKE
A RECOMMENDATION  ...  THAT SUCH ALIEN SHALL NOT BE DEPORTED." 

FN17  THE PETITIONER AND THE MAJORITY SUGGEST THAT IF PETITIONER HAD
BEEN AN ALIEN AT THE TIME OF HIS TRIAL HE COULD HAVE OFFERED TO PLEAD
GUILTY TO ONE COUNT OF INCOME TAX EVASION IN RETURN FOR A NOLLE
PROSEQUI ON THE REMAINING COUNTS, THEREBY AVOIDING THE POSSIBILITY OF
BEING CONVICTED FOR TWO CRIMES.  THIS IS UNREALISTIC FOR TWO REASONS. 
AT THE TIME OF THE TRIAL, DENATURALIZATION PROCEEDINGS WERE PENDING
AGAINST PETITIONER.  UNITED STATES V. COSTELLO, 145 F. SUPP. 892,
REVERSED, 247 F.2D 384 (C.A.2D CIR.), REVERSED, 356 U.S. 256.  HE WAS
THEREFORE AWARE OF THE DEPORTATION IMPLICATIONS FLOWING FROM CONVICTION
ON DUAL COUNTS, AND WAS IN A POSITION TO BARGAIN AS HE FELT MOST
ADVANTAGEOUS TO HIMSELF.  AND EVEN MORE SPECULATIVE THAN THE QUESTION
OF WHAT THE PETITIONER MIGHT HAVE DONE HAD CONDITIONS BEEN DIFFERENT IS
WHETHER THE GOVERNMENT, WITH DENATURALIZATION PROCEEDINGS PENDING
AGAINST FRANK COSTELLO, WOULD HAVE AGREED TO A NOLLE PROSEQUI WHICH
WOULD FORECLOSE THE POSSIBILITY OF LATER DEPORTATION PROCEEDINGS. 
..END :


















GREENE V. UNITED STATES 376 U.S. 149 


NO. 84.  ARGUED NOVEMBER 21, 1963.  - DECIDED FEBRUARY 17, 1964.  -
REVERSED AND REMANDED. 


FOLLOWING PETITIONER'S SUCCESSFUL CHALLENGE IN GREENE V. MCELROY, 360
U.S. 474, OF THE REVOCATION OF HIS GOVERNMENT SECURITY CLEARANCE, HE
SOUGHT TO RECOVER FOR LOSS OF EARNINGS RESULTING FROM SUCH REVOCATION. 
PETITIONER'S CLAIM WAS BASED IN PART UPON A 1955 DEPARTMENT OF DEFENSE
REGULATION PROVIDING FOR MONETARY RESTITUTION IN CASES WHERE A "FINAL
DETERMINATION" IS FAVORABLE TO A CONTRACTOR EMPLOYEE.  THE DEPARTMENT
TOOK THE POSITION THAT PETITIONER DID NOT QUALIFY FOR MONETARY
RESTITUTION UNDER THAT REGULATION BUT OFFERED TO PROCESS HIS CASE UNDER
A 1960 REGULATION - ISSUED WHILE PETITIONER'S CLAIM WAS BEING PROCESSED
- UNDER WHICH, BEFORE REIMBURSEMENT WOULD BE ALLOWED, AN ADMINISTRATIVE
DETERMINATION HAD TO BE MADE THAT PETITIONER "WOULD BE" CURRENTLY
ENTITLED TO A SECURITY CLEARANCE.  PETITIONER NEITHER REQUIRED NOR
SOUGHT ACCESS AUTHORIZATION FOR CLASSIFIED INFORMATION IN HIS CURRENT
EMPLOYMENT.  HE THEN BROUGHT THIS ACTION FOR RESTITUTION IN THE COURT
OF CLAIMS, BUT THAT COURT REFUSED TO PASS ON THE MERITS PENDING
PETITIONER'S PURSUIT OF HIS ADMINISTRATIVE REMEDIES.  HELD: 

1.  PETITIONER WAS ENTITLED TO COMPENSATION UNDER THE 1955 DEPARTMENT
OF DEFENSE REGULATION.  PP. 160-162. 

(A)  PETITIONER'S RIGHTS MATURED UNDER THE 1955 REGULATION.  P. 160. 

(B)  IT WOULD BE UNJUSTIFIABLE TO GIVE THE 1960 REGULATION
RETROACTIVE EFFECT, SINCE THAT REGULATION HAD BEEN ISSUED AFTER
PETITIONER'S CLAIM HAD BEEN ASSERTED.  P. 160. 

(C)  THE DISTRICT COURT'S ORDER ON REMAND VOIDING ALL DETERMINATIONS
ADVERSE TO PETITIONER HAD THE EFFECT OF REINSTATING PETITIONER'S
SECURITY CLEARANCE BETWEEN THE TIME OF HIS DISCHARGE AND THE DISTRICT
COURT'S EXPUNGEMENT ORDER, WHICH CONSTITUTED A "FINAL" AND "FAVORABLE"
DETERMINATION WITHIN THE MEANING OF THE 1955 REGULATION.  PP. 160-161. 

(D)  PETITIONER, HAVING ESTABLISHED THE GOVERNMENT'S IMPROPER DENIAL
OF CLEARANCE BY FAILURE TO PROVIDE FAIR PROCEDURES, CAN RECOVER UNDER
THE 1955 REGULATION "IN AN EQUITABLE AMOUNT FOR ANY LOSS OF EARNINGS
DURING THE INTERIM RESULTING DIRECTLY FROM A SUSPENSION OF CLEARANCE"
WITHOUT ASSUMING THE ADDITIONAL BURDEN OF SHOWING AT A LATER TIME, THAT
IF HE HAD BEEN AFFORDED FAIR PROCEDURES HE WOULD HAVE BEEN ABLE TO
DEMONSTRATE THAT HE WAS ENTITLED TO ACCESS AUTHORIZATION TO CLASSIFIED
INFORMATION.  P. 161. 

2.  SINCE THE RIGHT OF PETITIONER TO RECOVER UNDER THE APPLICABLE
REGULATION DOES NOT REQUIRE A DETERMINATION OF HIS PRESENT ELIGIBILITY,
ADMINISTRATIVE REMEDIES UNDER THE SUBSEQUENT REGULATION, WHICH WOULD
REQUIRE SUCH A DETERMINATION, MUST BE REGARDED AS INAPPROPRIATE AND
INADEQUATE AND THEREFORE NEED NOT BE EXHAUSTED.  PP. 162-164. 

GREENE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

PETITIONER, THE PREVAILING PARTY IN GREENE V. MCELROY, 360 U.S. 474,
COMES TO THIS COURT FOR A SECOND TIME.  PRIOR TO APRIL 23, 1953,
PETITIONER WAS EMPLOYED BY A PRIVATE CORPORATION PRODUCING MECHANCICAL
AND ELECTRICAL PARTS FOR MILITARY AGENCIES OF THE UNITED STATES.  ON
THAT DATE THE CORPORATION DISCHARGED HIM BECAUSE OF THE REVOCATION OF
HIS SECURITY CLEARANCE BY THE DEPARTMENT OF THE NAVY.  FOLLOWING HIS
CHALLENGE OF THIS REVOCATION, THIS COURT HELD IN 1959 IN GREENE V.
MCELROY, SUPRA, THAT "IN THE ABSENCE OF EXPLICIT AUTHORIZATION FROM
EITHER THE PRESIDENT OR CONGRESS THE RESPONDENTS WERE NOT EMPOWERED TO
DEPRIVE PETITIONER OF HIS JOB IN A PROCEEDING IN WHICH HE WAS NOT
AFFORDED THE SAFEGUARDS OF CONFRONTATION AND CROSS-EXAMINATION."  ID.,
AT 508.  ON REMAND THE DISTRICT COURT, DECLARING THAT REVOCATION OF
PETITIONER'S SECURITY CLEARANCE WAS "NOT VALIDLY AUTHORIZED," ORDERED
THAT ALL RULINGS DENYING PETITIONER'S SECURITY CLEARANCE BE "EXPUNGED
FROM ALL RECORDS OF THE GOVERNMENT OF THE UNITED STATES."  (FN1) 

IN THE INTERIM BETWEEN THE SECURITY REVOCATION AND THE DISTRICT COURT
ORDER, PETITIONER HAD FOUND IT NECESSARY TO TAKE LESS REMUNERATIVE
NONSECURITY EMPLOYMENT.  (FN2)  WHEN, AFTER THE PROLONGED LITIGATION,
HE OBTAINED JUDICIAL RELIEF IN 1959, HIS CURRENT EMPLOYMENT DID NOT
REQUIRE AND HE DID NOT SEEK ACCESS AUTHORIZATION.  HE THEN SOUGHT ONLY
TO RECOVER COMPENSATION FOR THE UNAUTHORIZED GOVERNMENTAL ACTION, AND
TO THAT END, SHORTLY AFTER ENTRY OF THE COURT ORDER, FORMALLY REQUESTED
THE DEPARTMENT OF DEFENSE TO PROVIDE MONETARY RESTITUTION FOR HIS LOSS
OF EARNINGS.  PETITIONER BASED HIS CLAIM ON A 1955 DEPARTMENT OF
DEFENSE REGULATION PROVIDING THAT WHERE THERE HAS BEEN "A FINAL
DETERMINATION  ...  FAVORABLE TO A CONTRACTOR EMPLOYEE," THE EMPLOYEE
WILL BE REIMBURSED "IN AN EQUITABLE AMOUNT FOR ANY LOSS OF EARNINGS
DURING THE INTERIM RESULTING DIRECTLY FROM A SUSPENSION OF CLEARANCE." 
(FN3)  THE DEPARTMENT OF DEFENSE REFUSED TO GRANT RESTITUTION UNDER
THIS 1955 REGULATION BUT OFFERED TO CONSIDER PETITIONER'S CLAIM UNDER A
1960 REGULATION (FN4) ISSUED AFTER THE CLAIM HAD ARISEN AND HAD BEEN
FORMALLY ASSERTED.  PURSUANT TO THE TERMS OF THE NEW REGULATION, THE
DEPARTMENT INDICATED THAT, AS A CONDITION OF MONETARY RESTITUTION, IT
WOULD BE NECESSARY TO HAVE AN ADMINISTRATIVE DETERMINATION THAT HE
"WOULD BE" CURRENTLY ENTITLED TO A SECURITY CLEARANCE.  PETITIONER
THEREUPON INSTITUTED THE PRESENT ACTION IN THE COURT OF CLAIMS TO
OBTAIN RESTITUTION UNDER THE TERMS OF THE 1955 REGULATION AND THE FIFTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.  THE COURT OF
CLAIMS REFUSED TO PASS ON THE MERITS OF PETITIONER'S CLAIM AND,
APPLYING THE DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES, ORDERED
PROCEEDINGS "SUSPENDED PENDING PURSUIT OF ADMINISTRATIVE REMEDIES MADE
AVAILABLE BY THE DEPARTMENT OF DEFENSE."  (FN5)  FOR THE REASONS STATED
BELOW, WE HOLD THAT PETITIONER IS ENTITLED TO RESTITUTION UNDER THE
1955 REGULATION AND THAT, UNDER THE CIRCUMSTANCES, IT WAS ERROR TO
REMIT PETITIONER TO FURTHER ADMINISTRATIVE PROCEEDINGS UNDER THE 1960
REGULATION. 

                  I 

THE FACTS COMPRISING THE BACKGROUND OF THE PRESENT ACTION ARE FULLY
SET FORTH IN GREENE V. MCELROY, SUPRA, AT 476-491, AND NEED ONLY BRIEF
RESTATEMENT HERE.  PETITIONER, AN AERONAUTICAL ENGINEER, WAS SERVING AS
VICE PRESIDENT AND GENERAL MANAGER OF ENGINEERING AND RESEARCH
CORPORATION (ERCO), A PRIVATE FIRM PRODUCING MECHANICAL AND ELECTRICAL
PARTS FOR VARIOUS AGENCIES OF THE UNITED STATES ARMED SERVICES. 
PETITIONER HAD BEEN EMPLOYED BY ERCO IN 1937 AND, EXCEPT FOR A BRIEF
LEAVE OF ABSENCE, HAD CONTINUED WITH THE FIRM.  IN CONNECTION WITH THIS
EMPLOYMENT, WHICH INVOLVED CLASSIFIED WORK FOR THE ARMED FORCES, HE HAD
OBTAINED SECURITY CLEARANCES.  (FN6)  INDEED, BEFORE THE REVOCATION OF
HIS SECURITY CLEARANCE, THE INDUSTRIAL EMPLOYMENT REVIEW BOARD, ON
JANUARY 29, 1952, HAD REVERSED THE ACTION OF AN INFERIOR BOARD AND
GRANTED PETITIONER CLEARANCE FOR SECRET GOVERNMENTAL CONTRACT WORK. 

ON APRIL 17, 1953, HOWEVER, THE SECRETARY OF THE NAVY NOTIFIED ERCO
THAT PETITIONER'S "CONTINUED ACCESS TO NAVY CLASSIFIED SECURITY
INFORMATION WAS INCONSISTENT WITH THE BEST INTERESTS OF NATIONAL
SECURITY."  (FN7)  NO HEARING PRECEDED THIS NOTIFICATION.  THE
SECRETARY FURTHER REQUESTED ERCO TO EXCLUDE PETITIONER "FROM ANY PART
OF YOUR PLANTS, FACTORIES OR SITES AT WHICH CLASSIFIED NAVY PROJECTS
ARE BEING CARRIED OUT AND TO BAR HIM ACCESS TO ALL NAVY CLASSIFIED
INFORMATION."  ERCO HAD NO CHOICE BUT TO COMPLY WITH THIS REQUEST AND
SO, A WEEK LATER, ON APRIL 23, 1953, PETITIONER WAS DISCHARGED. 
PETITIONER PROMPTLY ASKED THE NAVY FOR RECONSIDERATION.  A YEAR LATER
HE WAS GIVEN A "HEARING" IN WHICH HE WAS DENIED AN OPPORTUNITY TO
CONFRONT OR CROSS-EXAMINE THE ALLEGEDLY ADVERSE WITNESSES.  ON THE
BASIS OF THIS PROCEEDING THE APPROPRIATE ADMINISTRATIVE BOARDS APPROVED
THE SECRETARY'S REVOCATION OF SECURITY CLEARANCE. 

PETITIONER THEREUPON FILED A COMPLAINT IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA ASKING FOR APPROPRIATE INJUNCTIVE
RELIEF AND A DECLARATION THAT THE REVOCATION WAS UNLAWFUL AND VOID. 
THE DISTRICT COURT DENIED RELIEF, 150 F. SUPP. 958, AND THE COURT OF
APPEALS AFFIRMED, 103 U.S. APP. D.C. 87, 254 F.2D 944.  THEN, AS NOTED
ABOVE, ON JUNE 29, 1959, THIS COURT, REVERSING THE DECISIONS BELOW,
HELD THAT "IN THE ABSENCE OF EXPLICIT AUTHORIZATION FROM EITHER THE
PRESIDENT OR CONGRESS THE RESPONDENTS WERE NOT EMPOWERED TO DEPRIVE
PETITIONER OF HIS JOB IN A PROCEEDING IN WHICH HE WAS NOT AFFORDED THE
SAFEGUARDS OF CONFRONTATION AND CROSS-EXAMINATION."  GREENE V. MCELROY,
SUPRA, AT 508.  ON REMAND, THE DISTRICT COURT ON DECEMBER 14, 1959,
WITH THE CONSENT OF THE GOVERNMENT, ENTERED A FINAL ORDER DECLARING:
(1) "THAT THE ACTION OF THE SECRETARY OF DEFENSE AND HIS SUBORDINATES
IN FINALLY REVOKING PLAINTIFF'S SECURITY CLEARANCE WAS  ...  NOT
VALIDLY AUTHORIZED," AND (2) "THAT ANY OR ALL RULINGS, ORDERS, OR
DETERMINATIONS WHEREIN OR WHEREBY PLAINTIFF'S SECURITY CLEARANCE WAS
REVOKED ARE HEREBY ANNULLED AND EXPUNGED FROM ALL RECORDS OF THE
GOVERNMENT OF THE UNITED STATES."  (FN8) 

FOLLOWING ISSUANCE OF THIS ORDER, PETITIONER INITIATED THE
ADMINISTRATIVE AND LEGAL STEPS IMMEDIATELY LEADING TO THE PRESENT
ACTION.  HIS CURRENT EMPLOYMENT DID NOT REQUIRE AND HE DID NOT SEEK AN
OPPORTUNITY TO OBTAIN CURRENT ACCESS AUTHORIZATION FOR CLASSIFIED
INFORMATION; INDEED, HE PLAINLY SAYS THAT HE DOES NOT NOW "NEED OR
WANT" SUCH AUTHORIZATION.  HIS SOLE OBJECTIVE IS TO OBTAIN COMPENSATION
FOR THE GOVERNMENTAL ACTION HELD BY THIS COURT NOT TO HAVE BEEN VALIDLY
AUTHORIZED.  ON DECEMBER 28, 1959, HE MADE A FORMAL DEMAND OF THE
GENERAL COUNSEL OF THE DEPARTMENT OF THE NAVY "FOR MONETARY RESTITUTION
FROM THE DEPARTMENT OF THE NAVY AND/OR THE DEPARTMENT OF DEFENSE
PURSUANT TO SECTION 26 OF THE INDUSTRIAL PERSONNEL SECURITY REVIEW
REGULATION, 20 FED. REG. 1553."  THIS REGULATION, ISSUED IN 1955,
PROVIDES AS FOLLOWS: 

"IN CASES WHERE A FINAL DETERMINATION IS FAVORABLE TO A CONTRACTOR
EMPLOYEE, THE DEPARTMENT WHOSE ACTIVITY ORIGINALLY FORWARDED THE CASE
TO THE DIRECTOR WILL REIMBURSE THE CONTRACTOR EMPLOYEE IN AN EQUITABLE
AMOUNT FOR ANY LOSS OF EARNINGS DURING THE INTERIM RESULTING DIRECTLY
FROM A SUSPENSION OF CLEARANCE."  (FN9) 

THE GENERAL COUNSEL OF THE DEPARTMENT OF THE NAVY ACKNOWLEDGED THE
DEMAND AND REQUESTED THAT CERTAIN DATES AND FINANCIAL DATA BE
SUPPLIED.  A STATEMENT OF PETITIONER'S LEGAL POSITION RESPECTING THE
APPLICABILITY OF THE REGULATION WAS ALSO REQUESTED.  ON APRIL 20, 1960,
HE SUPPLIED THE GENERAL COUNSEL OF THE DEPARTMENT OF THE NAVY WITH THE
REQUESTED INFORMATION AND STATEMENT OF LEGAL POSITION.  (FN10) 

WHILE PETITIONER'S CLAIM WAS THUS BEING PROCESSED, THE SECRETARY OF
DEFENSE ON JULY 28, 1960, ISSUED A NEW INDUSTRIAL PERSONNEL ACCESS
AUTHORIZATION REVIEW REGULATION, A REGULATION SUPERSEDING IN PERTINENT
PART THE 1955 REGULATION UNDER WHICH PETITIONER HAD CLAIMED
COMPENSATION.  (FN11)  THE LANGUAGE OF THE NEW "MONETARY RESTITUTION"
PROVISION CLEARLY INDICATES THAT THE 1955 REGULATION HAD BEEN
SIGNIFICANTLY AND SUBSTANTIALLY ALTERED.  THUS, INSTEAD OF SIMPLY
PROVIDING, AS THE EARLIER REGULATION DID, THAT UPON "A FINAL
DETERMINATION  ...  FAVORABLE TO A CONTRACTOR EMPLOYEE" THE GOVERNMENT
SHALL PROVIDE COMPENSATION FOR THE LOSS OF EARNINGS, THE 1960
REGULATION, INTER ALIA, (1) SUBJECTS THE CLAIMANT'S RECOVERY TO
ADMINISTRATIVE DISCRETION; (2) REQUIRES THAT "AT A LATER TIME" THE
CLAIMANT QUALIFY TO RECEIVE A SECURITY CLEARANCE EQUIVALENT TO THAT
ORIGINALLY HELD OR SOUGHT; (3) REQUIRES THAT THE "FAVORABLE
DETERMINATION" BE A FAVORABLE "ADMINISTRATIVE" DETERMINATION; AND (4)
REQUIRES THAT THE CONTRARY DETERMINATION HAD BEEN "UNJUSTIFIED." 

ON JANUARY 4, 1961, PETITIONER WAS ADVISED THAT HIS CLAIM HAD BEEN
FORWARDED TO THE DIRECTOR OF THE OFFICE OF SECURITY POLICY OF THE
DEPARTMENT OF DEFENSE FOR FINAL DETERMINATION.  PETITIONER THEN, IN A
LETTER ADDRESSED TO THE DIRECTOR, REITERATED HIS CLAIM AND STATED THAT
HE WAS ENTITLED TO RESTITUTION UNDER THE 1955 REGULATION.  AFTER
FURTHER COMMUNICATION, THE DIRECTOR ADVISED PETITIONER THAT THE
DEPARTMENT OF DEFENSE WAS PREPARED TO CONSIDER HIS CASE UNDER THE NEWLY
ISSUED 1960 REGULATION AND "TO TAKE SUCH ACTION AS MAY BE NECESSARY TO
REACH A FINAL DETERMINATION AS TO WHETHER IT IS IN THE NATIONAL
INTEREST TO GRANT HIM AN AUTHORIZATION FOR ACCESS TO CLASSIFIED
INFORMATION."  ON MARCH 2, 1961, PETITIONER AGAIN SUBMITTED A STATEMENT
OF HIS LEGAL POSITION CONCERNING THE APPLICABILITY OF THE 1955
REGULATION AND AGAIN POINTED OUT THAT HE HAD NO OCCASION TO REQUIRE
AND, THEREFORE, WAS NOT SEEKING CURRENT SECURITY CLEARANCE.  HE
EXPRESSLY DECLINED TO REQUEST CONSIDERATION OF HIS CASE UNDER THE 1960
REGULATION.  THE DIRECTOR RESPONDED BY REEMPHASIZING THE DEPARTMENT'S
"WILLINGNESS TO PROCESS THE QUESTION OF MR. GREENE'S CURRENT
ELIGIBILITY FOR ACCESS AUTHORIZATION UNDER THE PROVISIONS OF THE 1960
REVIEW REGULATION." 

FINALLY, ON JUNE 1, 1961, NEARLY A YEAR AND A HALF AFTER THIS COURT'S
DECISION AND PETITIONER'S REQUEST FOR COMPENSATION, THE DEPUTY GENERAL
COUNSEL OF THE DEPARTMENT OF NAVY ADVISED PETITIONER THAT "IN
ACCORDANCE WITH DEPARTMENT OF DEFENSE POLICY, IT HAS BEEN DETERMINED BY
THE DEPARTMENT OF DEFENSE THAT MR. GREENE DOES NOT QUALIFY FOR MONETARY
RESTITUTION UNDER THE PROVISIONS" OF THE 1955 REGULATION.  THIS
CONCLUSION WAS COUPLED WITH ANOTHER EXPRESSION OF THE DEFENSE
DEPARTMENT'S WILLINGNESS "TO UNDERTAKE THE PROCESSING OF HIS CASE UNDER
THE JULY 28, 1960 REVIEW REGULATION  ... ." 

PETITIONER THEN COMMENCED THE PRESENT ACTION IN THE COURT OF CLAIMS,
ALLEGING THAT HE WAS ENTITLED TO MONETARY RESTITUTION "IN AN AMOUNT
EQUAL TO THE SALARY OR PAY WHICH HE WOULD HAVE EARNED AT THE RATE HE
WAS RECEIVING ON THE DATE OF HIS SUSPENSION FROM EMPLOYMENT BY ERCO
LESS HIS EARNINGS FROM OTHER EMPLOYMENT."  PETITIONER BASED HIS CLAIM
ON THE 1955 REGULATION AND THE JUST COMPENSATION CLAUSE OF THE FIFTH
AMENDMENT TO THE CONSTITUTION.  THE GOVERNMENT MOVED "TO SUSPEND
PROCEEDINGS IN THIS CASE PENDING PLAINTIFF'S PURSUIT AND COMPLETION OF
THE ADMINISTRATIVE REMEDY AVAILABLE TO HIM IN THE DEPARTMENT OF
DEFENSE."  PETITIONER RESPONDED REASSERTING THAT THE "JULY 28, 1960
REVIEW REGULATION HAS NO APPLICATION TO THIS CLAIM FOR MONETARY
RESTITUTION  ...  "; THAT HIS CURRENT EMPLOYMENT DID NOT REQUIRE AND
THAT HE DID NOT SEEK OR DESIRE ACCESS AUTHORIZATION; AND, THEREFORE,
THAT HE WAS "NOT BOUND TO EXHAUST ANY REMEDIES UNDER THE JULY 28, 1960
REVIEW REGULATION BEFORE MAKING SUCH CLAIM OR BRINGING THIS SUIT."  THE
COMMISSIONER OF THE COURT OF CLAIMS SUSTAINED THE GOVERNMENT'S POSITION
BY ORDERING "FURTHER PROCEEDINGS  ...  SUSPENDED PENDING PURSUIT OF
ADMINISTRATIVE REMEDIES MADE AVAILABLE BY THE DEPARTMENT OF DEFENSE." 
(FN12)  THE COURT OF CLAIMS SUBSEQUENTLY DENIED PETITIONER'S REQUEST
FOR REVIEW, AND THIS COURT GRANTED CERTIORARI, 372 U.S. 974. 

                                  II. 

PETITIONER CONTENDS THAT HIS RIGHT TO MONETARY RESTITUTION MUST BE
DETERMINED UNDER THE 1955 REGULATION.  THIS REGULATION PROVIDES THAT
GOVERNMENTAL LIABILITY FOLLOWS FROM "A FINAL DETERMINATION  ...
FAVORABLE TO A CONTRACTOR EMPLOYEE."  PETITIONER CONCLUDES THAT THIS
COURT'S DECISION IN GREENE V. MCELROY, SUPRA, AND THE DISTRICT COURT
ORDER CONSTITUTE THE ONLY FINAL AND FAVORABLE DETERMINATION REQUIRED BY
THE 1955 REGULATION.  HE MAINTAINS THAT THE JUDICIAL ORDER EXPUNGING
ADVERSE DETERMINATIONS REINSTATED IN EFFECT THE SECURITY CLEARANCE OF
JANUARY 1952 - "AT LEAST FOR THE PERIOD BETWEEN PETITIONER'S DISCHARGE
ON APRIL 23, 1953, AND THE EXPUNGEMENT ORDER OF DECEMBER 14, 1959." 
FURTHERMORE, PETITIONER ARGUES, WHEN IN GREENE V. MCELROY THIS COURT
HELD UNAUTHORIZED THE REVOCATION OF SECURITY CLEARANCE, AN ACT THAT
DEPRIVED PETITIONER OF HIS JOB, HE BECAME ENTITLED AS A MATTER OF RIGHT
TO RECOVER DAMAGES RESULTING FROM THE LOSS OF THAT EMPLOYMENT.    THE
GOVERNMENT RESPONDS THAT THE 1960, RATHER THAN THE 1955, REGULATION
APPLIES AND THAT, PURSUANT TO THE 1960 REGULATION, PETITIONER MUST
ESTABLISH AS A CONDITION OF RECOVERY THAT HE NOW "WOULD BE" CURRENTLY
ENTITLED TO A SECURITY CLEARANCE.  ALTERNATIVELY, (FN13) ASSUMING THE
1955 REGULATION GOVERNS, THE GOVERNMENT CONTENDS THAT BEFORE
RESTITUTION IS ALLOWED THERE MUST BE "A FURTHER SHOWING, AT THE
ADMINISTRATIVE LEVEL, THAT THE CHALLENGED REVOCATION OF ACCESS
AUTHORIZATION WAS NOT ONLY PROCEDURALLY INCORRECT, BUT SUBSTANTIVELY
WRONG."  SPECIFICALLY, THE GOVERNMENT STATES, TO MEET THE REQUIREMENTS
OF THE 1955 REGULATION, PETITIONER "MUST AT LEAST SHOW THAT HE WAS
ENTITLED TO CLEARANCE DURING THE PERIOD FOR WHICH HE CLAIMS DAMAGES BY
REASON OF THE DENIAL OF CLEARANCE."  FINALLY, THE GOVERNMENT ARGUES,
EVEN IF THE 1955 REGULATION IS APPLICABLE, PETITIONER MUST EXHAUST THE
POSSIBILITY OF RECOVERY IN ADMINISTRATIVE PROCEEDINGS UNDER THE 1960
REGULATION. 

WHATEVER PETITIONER'S RIGHTS ARE, THERE CAN BE NO DOUBT THEY MATURED
AND WERE ASSERTED UNDER THE 1955 DIRECTIVE.  NOT UNTIL SIX MONTHS AFTER
PETITIONER FORMALLY PRESENTED HIS CLAIM TO THE DEPARTMENT OF DEFENSE
DID THE SECRETARY OF DEFENSE ISSUE A NEW, AND SUBSTANTIALLY REVISED,
REGULATION CONCERNING "MONETARY RESTITUTION."  THUS THE GOVERNMENT'S
ARGUMENT NECESSARILY REQUIRES THAT THE 1960 REGULATION BE GIVEN
RETROACTIVE APPLICATION.  AS THE COURT SAID IN UNION PAC. R. CO. V.
LARAMIE STOCK YARDS CO., 231 U.S. 190, 199, "THE FIRST RULE OF
CONSTRUCTION IS THAT LEGISLATION MUST BE CONSIDERED AS ADDRESSED TO THE
FUTURE, NOT TO THE PAST  ...  AND A RETROSPECTIVE OPERATION WILL NOT BE
GIVEN TO A STATUTE WHICH INTERFERES WITH ANTECEDENT RIGHTS  ...  UNLESS
SUCH BE 'THE UNEQUIVOCAL AND INFLEXIBLE IMPORT OF THE TERMS, AND THE
MANIFEST INTENTION OF THE LEGISLATURE.'"  (FN14)  SINCE REGULATIONS OF
THE TYPE INVOLVED IN THIS CASE ARE TO BE VIEWED AS IF THEY WERE
STATUTES, THIS "FIRST RULE" OF STATUTORY CONSTRUCTION APPROPRIATELY
APPLIES AND UNDER THE CIRCUMSTANCES, IT WOULD BE UNJUSTIFIABLE TO GIVE
THE 1960 REGULATION RETROACTIVE EFFECT. 

OUR INTERPRETATION OF THE 1955 REGULATION MAKES IT CLEAR THAT
PETITIONER HAS OBTAINED THE REQUISITE FINAL, FAVORABLE DETERMINATION. 
IN GREENE V. MCELROY, SUPRA, THIS COURT HELD THAT THE GOVERNMENT HAD
ACTED WITHOUT AUTHORITY IN DENYING PETITIONER SECURITY CLEARANCE
WITHOUT PROVIDING THE TRADITIONAL SAFEGUARDS OF CONFRONTATION AND CROSS
EXAMINATION.  ON REMAND, AND WITH THE CONSENT OF THE GOVERNMENT, THE
DISTRICT COURT ENTERED THE ORDER VOIDING AND EXPUNGING ALL
DETERMINATIONS ADVERSE TO PETITIONER.  AS A RESULT OF THE JUDICIAL
ACTION AND IN THE ABSENCE OF INTERVENING ADMINISTRATIVE PROCEEDINGS,
THE ONLY LEGALLY COGNIZABLE ADMINISTRATIVE DETERMINATION - FOR THE
PERIOD BETWEEN PETITIONER'S 1953 DISCHARGE AND THE 1959 EXPUNGEMENT
ORDER - WAS THE JANUARY 1952 RULING GRANTING PETITIONER SECURITY
CLEARANCE.  THUS THE FINAL JUDICIAL ORDER EFFECTIVELY REINSTATED THE
LAST VALID ADMINISTRATIVE DETERMINATION, A DETERMINATION WHICH HAD BEEN
SUBSTANTIVELY FAVORABLE TO PETITIONER.  BY VIRTUE OF THE DISTRICT COURT
ORDER, THEREFORE, PETITIONER MUST BE REGARDED AS HAVING OBTAINED, FOR
THE PERIOD BETWEEN THE DISCHARGE AND THE JUDICIAL MANDATE, A "FINAL"
AND "FAVORABLE" DETERMINATION. 

FURTHERMORE, WE READ THE APPLICABLE REGULATION AS EQUITABLY DESIGNED
(FN15) TO COMPENSATE EMPLOYEES WHOSE SECURITY CLEARANCE HAS BEEN
IMPROPERLY OR WRONGLY DENIED.  THE DIRECTIVE'S LANGUAGE DOES NOT
REASONABLY WARRANT THE IMPLICATION THAT A CLAIMANT, WHO HAS SUSTAINED
THE BURDEN OF DEMONSTRATING THAT THE GOVERNMENT ACTED WITHOUT AUTHORITY
IN REVOKING HIS CLEARANCE WITHOUT FAIR PROCEDURES, MUST TAKE ON THE
ADDITIONAL BURDEN OF SHOWING AT A LATER TIME THAT IF HE HAD BEEN
AFFORDED FAIR PROCEDURES IN THE FIRST INSTANCE HE WOULD HAVE BEEN ABLE
TO DEMONSTRATE SUCCESSFULLY THAT HE WAS ENTITLED TO ACCESS
AUTHORIZATION.  ON THE CONTRARY, THE REGULATION SHOULD BE INTERPRETED
TO MEAN THAT WHERE A CLAIMANT ESTABLISHES THAT THE GOVERNMENT HAS
IMPROPERLY DENIED CLEARANCE BY ITS FAILURE TO PROVIDE FAIR PROCEDURES,
THE GOVERNMENT IS LIABLE AND PETITIONER IS ENTITLED TO RECOVER "IN AN
EQUITABLE AMOUNT FOR ANY LOSS OF EARNINGS DURING THE INTERIM RESULTING
DIRECTLY FROM A SUSPENSION OF CLEARANCE."  (FN16) 

IN A CASE SUCH AS THE PRESENT, WHERE THE GOVERNMENT HAS ACTED WITHOUT
AUTHORITY IN CAUSING THE DISCHARGE OF AN EMPLOYEE WITHOUT PROVIDING
ADEQUATE PROCEDURAL SAFEGUARDS, WE SHOULD BE RELUCTANT TO CONCLUDE THAT
A REGULATION, NOT EXPLICITLY SO REQUIRING, CONDITIONS RESTITUTION ON A
RETROSPECTIVE DETERMINATION OF THE VALIDITY OF THE SUBSTANTIVE REASONS
FOR THE GOVERNMENT ACTION - REASONS WHICH THE EMPLOYEE WAS NOT AFFORDED
AN ADEQUATE OPPORTUNITY TO MEET OR REBUT AT THE TIME OF HIS DISCHARGE. 
THIS PRINCIPLE IS ANALOGOUS TO THAT REFLECTED IN STATE COURT DECISIONS
RECOGNIZING THAT "A PRIVATE ASSOCIATION'S FAILURE TO AFFORD PROCEDURAL
SAFEGUARDS MAY RESULT IN THE IMPOSITION OF DAMAGE LIABILITY WITHOUT
INQUIRY INTO WHETHER THE ASSOCIATION'S ACTION LACKED SUBSTANTIVE BASIS
...  ."  SEE AUTHORITIES CITED IN SILVER V. NEW YORK STOCK EXCHANGE,
373 U.S. 341, 365, N. 18. 

HAVING DETERMINED THAT PETITIONER WAS ENTITLED TO COMPENSATION UNDER
THE 1955 REGULATION, WE MUST CONSIDER WHETHER IT WAS PROPER, AS THE
GOVERNMENT CONTENDS HERE AND THE COURT OF CLAIMS HELD, TO REMIT
PETITIONER TO FURTHER ADMINISTRATIVE PROCEEDINGS UNDER THE 1960
REGULATION. 

THE DEPARTMENT OF DEFENSE, AFTER CONSIDERING PETITIONER'S CLAIM FOR
NEARLY A YEAR AND A HALF FOLLOWING THIS COURT'S DECISION IN GREENE V.
MCELROY, SUPRA, SPECIFICALLY DETERMINED THAT "MR. GREENE DOES NOT
QUALIFY FOR MONETARY RESTITUTION UNDER THE PROVISIONS" OF THE 1955
REGULATION.  PETITIONER'S LEGITIMATE CLAIM THUS HAVING BEEN PRESENTED
AND REJECTED, THERE CAN BE NO DOUBT THAT HE HAD EXHAUSTED THE
REASONABLE POSSIBILITY OF ADMINISTRATIVE PROCEEDINGS UNDER THE
APPLICABLE REGULATION.  THE GOVERNMENT ARGUES IN EFFECT, HOWEVER, THAT
THE CLAIM COULD BE ADMINISTRATIVELY PROCESSED, AND PETITIONER POSSIBLY
COULD RECOVER, UNDER THE 1960 REGULATION AND THAT, BY FAILING TO RESORT
TO PROCEEDINGS UNDER THE NEWLY ISSUED REGULATION, PETITIONER THEREBY
FAILED TO EXHAUST ALL AVAILABLE ADMINISTRATIVE REMEDIES. 

THE DEPARTMENT OF DEFENSE HAD CLEARLY DECLARED THAT IN THE COURSE OF
APPLYING THE 1960 REGULATION, IT WOULD NECESSARILY "PROCESS THE
QUESTION OF MR. GREENE'S CURRENT ELIGIBILITY FOR ACCESS AUTHORIZATION .
. . ."  AS WE HAVE INDICATED, HOWEVER, PETITIONER, WHO HAD TO FIND
NONSECURITY EMPLOYMENT AS A RESULT OF THE 1953 CLEARANCE REVOCATION,
DOES NOT NOW REQUIRE AND IS NOT SEEKING CURRENT ACCESS AUTHORIZATION. 
THEREFORE, AN ADMINISTRATIVE REVIEW OF HIS PRESENT ELIGIBILITY IS
WHOLLY IRRELEVANT TO A DETERMINATION OF HIS DAMAGES UNDER THE 1955
REGULATION.  IN VIEW OF THE SUBSTANTIAL DIFFERENCES BETWEEN THE TWO
REGULATIONS AND IN VIEW OF THE ADDITIONAL FACTUAL DETERMINATIONS THAT
WOULD BE RELEVANT UNDER THE 1960 REGULATION BUT IRRELEVANT UNDER THE
1955 REGULATION, WE CONCLUDE THE 1960 REGULATION DOES NOT PROVIDE A
REASONABLE BASIS FOR REVIEWING PETITIONER'S RIGHTS UNDER THE 1955
REGULATION.  WE DO NOT SUGGEST THAT A CLAIMANT, SEEKING DAMAGES UNDER A
FORMER REGULATION, NEED NOT RESORT TO ADMINISTRATIVE PROCEEDINGS UNDER
A NEW REGULATION WHERE THE NEW REGULATION CONTAINS ESSENTIALLY THE SAME
SUBSTANTIVE REQUIREMENTS AS ITS PREDECESSOR.  SINCE IN THIS CASE THE
ONLY AVAILABLE ADMINISTRATIVE PROCEDURE ENTAILED THE BURDEN OF
PRESENTING THE CLAIM UNDER AN INAPPLICABLE AND SUBSTANTIALLY REVISED
(FN17) REGULATION, THAT PROCEDURE MUST BE REGARDED AS INAPPROPRIATE AND
INADEQUATE AND THEREFORE NEED NOT BE PURSUED.  (FN18)  IT FOLLOWS THAT
PETITIONER, HAVING EXHAUSTED ADMINISTRATIVE PROCEEDINGS UNDER THE
APPLICABLE 1955 REGULATION, PROPERLY RESORTED TO THE COURT OF CLAIMS
WHICH CONGRESS HAS INVESTED WITH JURISDICTION TO ENTERTAIN CLAIMS
ASSERTED AGAINST THE UNITED STATES AND FOUNDED UPON "ANY REGULATION OF
AN EXECUTIVE DEPARTMENT."  28 U.S.C. SEC 1491. 

IN SUMMARY, THEN, WE HOLD THAT PETITIONER WAS ENTITLED AS A MATTER OF
RIGHT TO COMPENSATION UNDER THE 1955 REGULATION (FN19) AND THAT, WHEN
THE DEPARTMENT OF DEFENSE REJECTED HIS CLAIM UNDER THAT REGULATION, HE
WAS NOT REQUIRED TO PROCEED ADMINISTRATIVELY UNDER THE NEWLY ISSUED
1960 REGULATION.  IN SO HOLDING, WE DO NOT SUGGEST THAT IF PETITIONER
WERE NOW SEEKING ACCESS TO SECURITY-CLASSIFIED INFORMATION, HE WOULD BE
ENTITLED TO HAVE HIS CLEARANCE QUALIFICATIONS JUDGED BY OTHER THAN
CURRENT REGULATIONS.  BUT ALL HE SEEKS ARE DAMAGES FOR THE GOVERNMENT'S
UNAUTHORIZED ACTION AND TO THIS MUCH, WE HOLD, HE IS CERTAINLY
ENTITLED. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED AND THE
CASE REMANDED TO THAT COURT FOR A DETERMINATION OF THE AMOUNT OF
RESTITUTION DUE PETITIONER.  REVERSED AND REMANDED. 

FN1 THE TEXT OF THE DISTRICT COURT ORDER, DATED DECEMBER 14, 1959, IS
AS FOLLOWS: 

"UPON THE DECISION OF THE UNITED STATES SUPREME COURT IN THIS CASE
(GREENE V. MCELROY, 360 U.S. 474) AND THE COPY OF THE JUDGMENT AND
OPINION OF THE SUPREME COURT HERETOFORE FILED WITH THE CLERK OF THIS
COURT; AND: 

"IT APPEARING THAT COUNSEL FOR THE RESPECTIVE PARTIES HAVE CONSENTED
HERETO, IT IS HEREBY: 

"ORDERED THAT THE ACTION OF THE SECRETARY OF DEFENSE AND HIS
SUBORDINATES IN FINALLY REVOKING PLAINTIFF'S SECURITY CLEARANCE WAS AND
THE SAME IS HEREBY DECLARED TO BE NOT VALIDLY AUTHORIZED; AND IT IS
FURTHER: 

"ORDERED THAT ANY OR ALL RULINGS, ORDERS, OR DETERMINATIONS WHEREIN
OR WHEREBY PLAINTIFF'S SECURITY CLEARANCE WAS REVOKED ARE HEREBY
ANNULLED AND EXPUNGED FROM ALL RECORDS OF THE GOVERNMENT OF THE UNITED
STATES." 

FN2  IN THE PRIOR LITIGATION THIS COURT NOTED THAT THE COURT OF
APPEALS HAD CONCLUDED: 

"WE HAVE NO DOUBT THAT GREENE HAS IN FACT BEEN INJURED.  HE WAS
FORCED OUT OF A JOB THAT PAID HIM $18,000 PER YEAR.  HE HAS SINCE BEEN
REDUCED, SO FAR AS THIS RECORD SHOWS, TO WORKING AS AN ARCHITECTURAL
DRAFTSMAN AT A SALARY OF SOME $4,400 PER YEAR.  FURTHER, AS AN
AERONAUTICAL ENGINEER OF CONSIDERABLE EXPERIENCE HE SAYS (WITHOUT REAL
CONTRADICTION) THAT HE IS EFFECTIVELY BARRED FROM PURSUIT OF MANY
ASPECTS OF HIS PROFESSION, GIVEN THE CURRENT DEPENDENCE OF MOST PHASES
OF THE AIRCRAFT INDUSTRY ON DEFENSE DEPARTMENT CONTRACTS NOT ONLY FOR
PRODUCTION BUT FOR RESEARCH AND DEVELOPMENT WORK AS WELL  ...  .  NOR
DO WE DOUBT THAT, FOLLOWING THE GOVERNMENT'S ACTION, SOME STIGMA, IN
GREATER OR LESS DEGREE, HAS ATTACHED TO GREENE."  360 U.S. 474, 491, N.
21, QUOTING 103 U.S. APP. D.C. 87, 95-96, 254 F.2D 944, 952-953. 

FN3  THE PERTINENT REGULATION IS PARAGRAPH 26, DEPARTMENT OF DEFENSE
DIRECTIVE 5220.6, 20 FED. REG. 1553, DATED FEBRUARY 2, 1955: 

"MONETARY RESTITUTION.  IN CASES WHERE A FINAL DETERMINATION IS
FAVORABLE TO A CONTRACTOR EMPLOYEE, THE DEPARTMENT WHOSE ACTIVITY
ORIGINALLY FORWARDED THE CASE TO THE DIRECTOR WILL REIMBURSE THE
CONTRACTOR EMPLOYEE IN AN EQUITABLE AMOUNT FOR ANY LOSS OF EARNINGS
DURING THE INTERIM RESULTING DIRECTLY FROM A SUSPENSION OF CLEARANCE. 
SUCH AMOUNT SHALL NOT EXCEED THE DIFFERENCE BETWEEN THE AMOUNT THE
CONTRACTOR EMPLOYEE WOULD HAVE EARNED AT THE RATE HE WAS RECEIVING ON
THE DATE OF SUSPENSION AND THE AMOUNT OF HIS INTERIM NET EARNINGS.  NO
CONTRACTOR EMPLOYEE SHALL BE COMPENSATED FOR ANY INCREASE IN HIS LOSS
OF EARNINGS CAUSED BY HIS VOLUNTARY ACTION IN UNDULY DELAYING THE
PROCESSING OF HIS CASE UNDER THIS PART." 

FN4  THE JULY 28, 1960, REGULATION (DEPARTMENT OF DEFENSE DIRECTIVE
5220.6, 25 FED.  REG. 7523), ISSUED PURSUANT TO AN EXECUTIVE ORDER OF
FEBRUARY 20, 1960 (EXEC. ORDER NO. 10865, 25 FED. REG. 1583), CONTAINS
THE FOLLOWING PROVISION FOR "MONETARY RESTITUTION": 

"IF AN APPLICANT SUFFERS A LOSS OF EARNINGS RESULTING DIRECTLY FROM A
SUSPENSION, REVOCATION, OR DENIAL OF HIS ACCESS AUTHORIZATION, AND AT A
LATER TIME A FINAL ADMINISTRATIVE DETERMINATION IS MADE THAT THE
GRANTING TO HIM OF AN ACCESS AUTHORIZATION AT LEAST EQUIVALENT TO THAT
WHICH WAS SUSPENDED, REVOKED OR DENIED, WOULD BE CLEARLY CONSISTENT
WITH THE NATIONAL INTEREST AND IT IS DETERMINED BY THE BOARD MAKING A
FINAL FAVORABLE DETERMINATION THAT THE ADMINISTRATIVE DETERMINATION
WHICH RESULTED IN THE LOSS OF EARNINGS WAS UNJUSTIFIED, REIMBURSEMENT
OF SUCH LOSS OF EARNINGS MAY BE ALLOWED IN AN AMOUNT WHICH SHALL NOT
EXCEED THE DIFFERENCE BETWEEN THE AMOUNT THE APPLICANT WOULD HAVE
EARNED AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION,
REVOCATION, OR DENIAL OF HIS ACCESS AUTHORIZATION AND THE AMOUNT OF HIS
INTERIM NET EARNINGS." 

FN5  THE ORDER DECLARED THAT:  "IN VIEW OF THE ACTION THIS DAY BY THE
COURT IN STEPHEN L. KREZNAR V. THE UNITED STATES, NO. 47-60, AND NOVERA
HERBERT SPECTOR V. THE UNITED STATES, NO. 48-60, FURTHER PROCEEDINGS
HEREIN ARE HEREBY SUSPENDED PENDING PURSUIT OF ADMINISTRATIVE REMEDIES
MADE AVAILABLE BY THE DEPARTMENT OF DEFENSE."  THE CASES CITED ARE NOW
PENDING IN THIS COURT ON PETITION FOR A WRIT OF CERTIORARI, NO. 85,
THIS TERM. 

FN6  SEE GREENE V. MCELROY, SUPRA, AT 476, N. 1:  "PETITIONER WAS
GIVEN A CONFIDENTIAL CLEARANCE BY THE ARMY ON AUGUST 9, 1949, A TOP
SECRET CLEARANCE BY THE ASSISTANT CHIEF OF STAFF G-2, MILITARY DISTRICT
OF WASHINGTON ON NOVEMBER 9, 1949, AND A TOP SECRET CLEARANCE BY THE
AIR MATERIEL COMMAND ON FEBRUARY 3, 1950." 

FN7  AT THE TIME THE SECRETARY ACTED, THE ADMINISTRATIVE BOARDS THAT
HAD REVIEWED PETITIONER'S EARLIER CLEARANCE HAD BEEN ABOLISHED.  SEE
GREENE V. MCELROY, SUPRA, AT 480-483. 

FN8  THE FULL TEXT OF THE ORDER IS SET FORTH IN NOTE 1, SUPRA. 

FN9  SEE NOTE 3, SUPRA. 

FN10  PETITIONER STATED THAT HE HAD INCURRED A $49,960.41 LOSS OF
EARNINGS FROM APRIL 23, 1953, THE DATE OF HIS DISMISSAL, TO DECEMBER
31, 1959. 

FN11  THE TEXT OF THE NEW PROVISION IS SET FORTH IN NOTE 4, SUPRA. 

FN12  THE TEXT OF THE ORDER IS SET FORTH IN NOTE 5, SUPRA.    FN13
ALTHOUGH PETITIONER ASSERTS THAT THE GOVERNMENT IN THIS COURT IN EFFECT
CONCEDES THAT THE 1955 REGULATION MUST GOVERN, WE UNDERSTAND THE
GOVERNMENT TO HAVE FRAMED ALTERNATIVE ARGUMENTS RATHER THAN TO HAVE
MADE SUCH A CONCESSION. 

FN14  SEE, E.G., CLARIDGE APARTMENTS CO. V. COMMISSIONER, 323 U.S.
141, 164; SMEAD, THE RULE AGAINST RETROACTIVE LEGISLATION:  A BASIC
PRINCIPLE OF JURISPRUDENCE, 20 MINN. L. REV. 775-781 (1936). 

FN15  THE PURPOSE OF INSURING "EQUITY AND JUSTICE" IS REFLECTED BY THE
TESTIMONY IN HEARINGS BEFORE THE SUBCOMMITTEE ON DEPARTMENT OF DEFENSE
APPROPRIATIONS OF THE HOUSE COMMITTEE ON APPROPRIATIONS, 84TH CONG.,
1ST SESS., PP. 774-781. 

FN16  THE "INTERIM RESULTING" WOULD, WE BELIEVE, IN THIS CASE EXTEND
FROM PETITIONER'S DISCHARGE IN 1953 TO ISSUANCE OF THE DISTRICT COURT
ORDER EXPUNGING THE REVOCATION OF SECURITY CLEARANCE. 

FN17  SEE SUPRA, PP. 156-157. 

FN18  SEE, E.G., SKINNER & EDDY CORP. V. UNITED STATES, 249 U.S. 557,
562-563; SMITH V. ILLINOIS BELL TEL. CO., 270 U.S. 587, 591; TOWNSHIP
OF HILLSBOROUGH V. CROMWELL, 326 U.S. 620, 625-626; 3 DAVIS,
ADMINISTRATIVE LAW TREATISE (1958), SEC 20.07; JAFFE, THE EXHAUSTION OF
ADMINISTRATIVE REMEDIES, 12 BUFF.  L. REV. 327, 329-331 (1963). 

FN19  SINCE WE REMAND THE CAUSE TO THE COURT OF CLAIMS TO FIX THE
AMOUNT OF COMPENSATION, WE NEED NOT AND DO NOT PASS ON PETITIONER'S
CLAIM UNDER THE JUST COMPENSATION CLAUSE OF THE FIFTH AMENDMENT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

ONCE UNRAVELED, THIS CASE PRESENTS A SINGLE SIMPLE ISSUE, THE ANSWER
TO WHICH IS IN MY OPINION VERY CLEAR. 

WHATEVER THE GOVERNMENT'S POSITION EARLIER, IT HAS NOW CONCEDED THAT
THE PETITIONER'S CLAIM ARISES UNDER AND IS TO BE SETTLED IN ACCORDANCE
WITH THE 1955 REGULATION.  IN PARTICULAR, THE GOVERNMENT'S BRIEF STATES
THAT "IN LIGHT OF THE FACT THAT PETITIONER'S CLAIM WAS INITIALLY FILED
UNDER THE 1955 REGULATION," THE DEPARTMENT OF DEFENSE WOULD NOT REQUIRE
HIM TO SHOW THAT THE REVOCATION OF HIS CLEARANCE WAS SUBSTANTIVELY
UNJUSTIFIED WHEN ORDERED.  BRIEF, PAGE 14. 

ALL THAT IS LEFT IN THIS CASE, THEREFORE, IS A QUESTION CONCERNING
THE PROPER CONSTRUCTION OF THE 1955 REGULATION, WHICH AUTHORIZES
MONETARY RESTITUTION ONLY "IN CASES WHERE A FINAL DETERMINATION IS
FAVORABLE TO A CONTRACTOR EMPLOYEE  ...  ."  DEPARTMENT OF DEFENSE
DIRECTIVE 5220.6, 20 FED. REG. 1553, 1559.  THE GOVERNMENT'S POSITION
IS THAT THE QUOTED LANGUAGE CONDITIONS RESTITUTION ON "A RESTORATION OF
ELIGIBILITY FOR ACCESS TO CLASSIFIED INFORMATION."  COMBINED WITH THE
DISCLAIMER ABOVE, THIS EVIDENTLY MEANS THAT THE GOVERNMENT DOES INTEND
TO INSIST THAT PETITIONER SHOW HIS PRESENT ELIGIBILITY FOR CLEARANCE
BUT NOT THAT HE SHOW HIS ELIGIBILITY AT THE TIME CLEARANCE WAS
REVOKED.  THE PETITIONER CONTENDS THAT THIS COURT'S DECISION IN 1959,
360 U.S. 474, INVALIDATING THE REVOCATION OF HIS CLEARANCE FOR
PROCEDURAL DEFECTS, CONSTITUTES THE FAVORABLE "FINAL DETERMINATION"
REQUIRED UNDER THE 1955 REGULATION. 

IT IS EVIDENT THAT MOST OF THE COURT'S OPINION HAS NOTHING TO DO WITH
THIS ISSUE.  THERE IS NO REASON TO CONSIDER WHETHER THE PETITIONER
COULD PROPERLY BE REMITTED "TO FURTHER ADMINISTRATIVE PROCEEDINGS UNDER
THE 1960 REGULATION" (ANTE, P. 153), OR WHETHER THE 1960 REGULATION
PROVIDES "A REASONABLE BASIS FOR REVIEWING PETITIONER'S RIGHTS UNDER
THE 1955 REGULATION" (ANTE, P. 163).  NOR IS IT NECESSARY TO CONSIDER
WHAT THE DEPARTMENT OF DEFENSE WOULD REQUIRE WERE IT APPLYING THE 1960
REGULATION.  FINALLY, THE PROPRIETY OF REQUIRING THE PETITIONER TO SHOW
HIS ACCEPTABILITY FOR CLEARANCE IN 1953 IS NOT IN ISSUE, SINCE NO ONE
IS SEEKING TO IMPOSE THAT REQUIREMENT. 

ON THE RELEVANT ISSUE, BOTH OF THE COURT'S DISTINCT EXPLANATIONS FOR
ITS CONCLUSION ARE UNSATISFYING.  THE FIRST EXPLANATION IS THAT THE
ORDER OF THE DISTRICT COURT WHICH EXPUNGED ALL ADVERSE DETERMINATIONS
LEFT THE PETITIONER'S PRIOR CLEARANCE AS "THE ONLY LEGALLY COGNIZABLE
ADMINISTRATIVE DETERMINATION" (ANTE, PP. 160-161).  THEREFORE, THE
COURT CONCLUDES, THE DISTRICT COURT'S ORDER "MUST" BE REGARDED AS A
"FINAL" AND "FAVORABLE" DETERMINATION.  BUT THE CONCLUSION IS HARDLY
COMPELLED BY THE PREMISES.  QUITE OBVIOUSLY, THE ORDER OF NEITHER THIS
COURT NOR THE DISTRICT COURT CONSTITUTED A SECURITY CLEARANCE, WHICH
ONE WOULD HAVE THOUGHT TO BE THE KIND OF FINAL, FAVORABLE DETERMINATION
CONTEMPLATED BY THE REGULATION.  (FN1)  THERE IS CERTAINLY NO
INEVITABLE LOGIC WHICH COMPELS ONE TO REGARD AN ORDER WIPING OUT
PREVIOUSLY UNFAVORABLE RULINGS AND LEAVING TEMPORARILY INTACT AN
INITIAL FAVORABLE RULING AS A FINAL FAVORABLE DETERMINATION; WITH AT
LEAST EQUAL LOGIC, THE SITUATION COULD BE REGARDED AS ONE IN WHICH
THERE HAS BEEN NO FINAL DETERMINATION. 

THE OTHER EXPLANATION OFFERED BY THE COURT IS EVEN LESS
SATISFACTORY.  THE FACT THAT THE PETITIONER IS NOT INTERESTED IN
PRESENT CLEARANCE DOES NOT IPSO FACTO MAKE HIS PRESENT ELIGIBILITY
"WHOLLY IRRELEVANT TO A DETERMINATION OF HIS DAMAGES UNDER THE 1955
REGULATION" (ANTE, P. 163).  THE QUESTION IS WHAT THE 1955 REGULATION
REQUIRES, AND THE PETITIONER'S NEEDS AND DESIRES HAVE LITTLE RELEVANCE
TO THAT QUESTION, IF INDEED THEY HAVE ANY RELEVANCE AT ALL. 

THE NUB OF THIS CASE IS THAT THE 1955 REGULATION ALMOST CERTAINLY WAS
NOT FRAMED WITH THE PRESENT SITUATION IN MIND.  THE DIFFICULTIES OF
APPLYING A REGULATION MEANT TO APPLY TO SITUATIONS INVOLVING A LIMITED
NUMBER OF PROCEDURAL STEPS TO AN ADMINISTRATIVE ACTION TAKEN IN 1953
WHICH EVOKED AN UNFAVORABLE JUDICIAL RESPONSE IN 1959 AND HAS LED TO
FURTHER ADMINISTRATIVE AND JUDICIAL PROCEEDINGS STILL NOT TERMINATED IN
1964, HAVE NOT UNNATURALLY LED BOTH SIDES TO TAKE POSITIONS WHICH ARE
NOT CLEARLY JUSTIFIED BY THE REGULATION.  IT MAY WELL BE THAT THE
DEPARTMENT OF DEFENSE SHOULD, AND PERHAPS COULD, NOT REASONABLY APPLY
THE REQUIREMENT OF PRESENT ELIGIBILITY, SENSIBLE AND CERTAINLY
CONTEMPLATED IN THE ORDINARY SITUATION, TO THIS CASE, WHERE THE PRESENT
IS SO FAR REMOVED FROM THE RELEVANT PAST AND WHERE CURRENT ELIGIBILITY
IS NO LONGER AN ISSUE.  ON THE OTHER HAND, IT IS BY NO MEANS OBVIOUS
THAT A PROCEDURAL DEFAULT IN THE REVOCATION OF CLEARANCE AUTOMATICALLY
ENTITLES THE PETITIONER TO RESTITUTION.  THE GOVERNMENT'S LIABILITY
DEPENDS ON THE INFLICTION OF ACTUAL HARM AND NOT SIMPLY ON THE
COMMISSION OF AN ERROR OF LAW.  (FN2) 

THE CONTROLLING POINT IN THE PRESENT POSTURE OF THESE PROCEEDINGS IS
THAT THE PETITIONER HAS NOT BROUGHT HIMSELF UNDER THE GOVERNING
REGULATION AS IT IS NOW CONSTRUED BY THE DEPARTMENT CHARGED WITH ITS
APPLICATION.  WELL-ACCEPTED RULES GOVERNING JUDICIAL REVIEW OF
ADMINISTRATIVE DECISIONS REQUIRE THAT THE COURTS NOT INTERVENE AT THIS
STAGE.  (FN3)  SEE MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41;
AIRCRAFT & DIESEL EQUIPMENT CORP. V. HIRSCH, 331 U.S. 752, 767-768. 
(FN4)  IT MAY BE THAT IF THE PETITIONER FOLLOWED THE ADMINISTRATIVE
PATH STILL OPEN TO HIM, HE WOULD BE FOUND ENTITLED TO ALL THAT HE
DEMANDS UNDER THE DEPARTMENT'S CONSTRUCTION OF THE REGULATION.  OR IT
MAY BE THAT IN THE CONTEXT OF ACTUAL PROCEEDINGS THE DEPARTMENT WOULD
MODIFY ITS INTERPRETATION OF THE REGULATION.  THIS MIGHT OBVIATE THE
NEED FOR AN INTERPRETATION BY THIS COURT AND WOULD IN ANY EVENT GIVE
ASSURANCE THAT THOSE MOST CONCERNED AND INFORMED ABOUT THE REGULATION
HAD BEEN AFFORDED AN OPPORTUNITY TO ADJUST THE VARIOUS INTERESTS
INVOLVED IN THIS CASE. 

THE COURT'S SHORT-CIRCUITING OF CONTROLLING PRINCIPLES IS NEEDLESS
AND UNWISE.  I WOULD REMIT THE PETITIONER TO HIS ADMINISTRATIVE
REMEDY. 

FN1  AS WAS POINTED OUT IN MY OPINION CONCURRING IN THE 1959
DECISION, THERE WAS "NOTHING IN THE COURT'S OPINION WHICH SUGGESTS THAT
PETITIONER MUST BE GIVEN ACCESS TO CLASSIFIED MATERIAL."  360 U.S., AT
510. 

FN2  SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S. 341, CITED, ANTE, P.
162, BUT APPARENTLY NOT RELIED ON BY THE COURT, IS, OF COURSE, FAR
AFIELD.  THAT CASE DECIDED THAT THE STOCK EXCHANGE HAD COMMITTED ACTS
WHICH WERE VIOLATIVE OF THE ANTITRUST LAWS AND WHICH WERE NOT INSULATED
FROM ILLEGALITY BY THE SECURITIES EXCHANGE ACT.  THE PLAINTIFF WAS
SUING A PRIVATE DEFENDANT UNDER THE ANTITRUST LAWS TO RECOVER ACTUAL
DAMAGES. 

FN3  SINCE THE MAJORITY HOLDS THAT THE PETITIONER WAS ENTITLED TO
PRESENT HIS CLAIM IN THE COURT OF CLAIMS AND THAT THE CLAIM IS VALID,
IT WOULD BE INAPPROPRIATE FOR ME TO CONSIDER WHETHER UNDER MY VIEW OF
THE CASE THE PROPER COURSE WOULD HAVE BEEN DIRECT DISMISSAL FOR WANT OF
JURISDICTION; AN ANSWER TO THAT QUESTION WOULD REQUIRE A CONSIDERATION
OF THE PETITIONER'S CONSTITUTIONAL CLAIMS, NOT REACHED BY THE
MAJORITY.  SEE 28 U.S.C. SEC 1491. 

FN4  PROFESSOR DAVIS STATES THAT "PROBABLY EVERY COURT REQUIRES
EXHAUSTION OF ADMINISTRATIVE REMEDIES WHEN THE QUESTION PRESENTED IS
ONE WITHIN THE AGENCY'S SPECIALIZATION AND WHEN THE ADMINISTRATIVE
REMEDY IS AS LIKELY AS THE JUDICIAL REMEDY TO PROVIDE THE WANTED
RELIEF."  3 ADMINISTRATIVE LAW 56-57.  THOSE CONDITIONS ARE MET IN THIS
CASE. 
..END :


















TILTON V. MISSOURI PACIFIC RAILROAD CO. 376 U.S. 169 


NO. 49.  ARGUED JANUARY 7, 1964.  - DECIDED FEBRUARY 17, 1964.  - 306
F.2D 870, REVERSED AND REMANDED. 


PETITIONERS WERE EMPLOYEES OF RESPONDENT RAILROAD WHO HAD BEEN
PROVISIONALLY "UPGRADED" (ADVANCED) FROM HELPERS TO JOURNEYMEN IN
ACCORDANCE WITH AN AGREEMENT BETWEEN THEIR UNION AND THE RAILROAD,
UNDER WHICH PERMANENT SENIORITY STATUS AS JOURNEYMEN COULD BE ACHIEVED
FOLLOWING COMPLETION OF A PRESCRIBED WORK PERIOD IN THE UPGRADED
POSITION.  PETITIONERS' COMPLETION OF THE WORK PERIOD WAS DELAYED BY
THEIR ABSENCE IN MILITARY SERVICE, RESULTING IN PREVIOUSLY JUNIOR
NONVETERANS COMPLETING THE WORK PERIOD BEFORE PETITIONERS AND THEREBY
ATTAINING STATUS SENIOR TO THAT OF PETITIONERS.  SEEKING RESTORATION OF
SENIORITY RIGHTS UNDER SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND
SERVICE ACT, PETITIONERS BROUGHT THIS ACTION IN THE DISTRICT COURT,
WHICH DENIED RELIEF, AND THE COURT OF APPEALS AFFIRMED ON THE GROUND
THAT PETITIONERS' PROMOTIONS WERE SUBJECT TO CONTINGENCIES AND
"VARIABLES" WHICH PRECLUDED THEIR ADVANCEMENT IN STATUS UNDER THE ACT. 
HELD: 

1.  UNDER SEC 9(C)(1) AND THE "ESCALATOR PRINCIPLE" EMBODIED IN SEC
9(C)(2) OF THE ACT, PETITIONERS UPON COMPLETION OF THE WORK PERIOD WERE
ENTITLED TO SENIORITY AS OF THE EARLIER DATE ON WHICH THEY WOULD HAVE
COMPLETED THE WORK PERIOD BUT FOR THEIR ABSENCE IN MILITARY SERVICE. 
DIEHL V. LEHIGH VALLEY R. CO., 348 U.S. 960, FOLLOWED.  PP. 175-177. 

2.  PETITIONERS' ADVANCEMENT, UNLIKE THAT INVOLVED IN MCKINNEY V.
MISSOURI-KANSAS-TEXAS R. CO., 357 U.S. 265, DID NOT DEPEND UPON THE
EXERCISE OF MANAGEMENT DISCRETION, BUT WAS REASONABLY AUTOMATIC AND
FORESEEABLE.  PP. 180-181. 

TILTON ET AL. V. MISSOURI PACIFIC RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

SINCE 1940 CONGRESS, AS AN INTEGRAL PART OF SELECTIVE SERVICE
LEGISLATION, HAS PROTECTED THE REEMPLOYMENT RIGHTS OF VETERANS.  (FN1)
THE PRINCIPLE UNDERLYING THIS LEGISLATION IS THAT HE WHO IS "CALLED TO
THE COLORS IS NOT TO BE PENALIZED ON HIS RETURN BY REASON OF HIS
ABSENCE FROM HIS CIVILIAN JOB."  FISHGOLD V. SULLIVAN DRYDOCK & REPAIR
CORP., 328 U.S. 275, 284.  PETITIONERS, REEMPLOYED VETERANS, SUED
RESPONDENT RAILROAD, THEIR EMPLOYER, IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI.  (FN2)  THEY CLAIMED THAT THEY HAVE BEEN
DEPRIVED OF SENIORITY RIGHTS TO WHICH THEY ARE ENTITLED UNDER THE
UNIVERSAL MILITARY TRAINING AND SERVICE ACT AND THE APPLICABLE
COLLECTIVE BARGAINING AGREEMENT. 

THE DISTRICT COURT (FN3) HELD THAT PETITIONERS WERE NOT ENTITLED TO
THE RELIEF THEY SOUGHT.  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT
AFFIRMED.  306 F.2D 870.  WE GRANTED CERTIORARI, 372 U.S. 905, BECAUSE
OF THE IMPORTANCE OF THE QUESTION IN ADMINISTERING THE STATUTE
PROTECTING VETERANS' REEMPLOYMENT RIGHTS.  FOR THE REASONS STATED
BELOW, WE REVERSE THE JUDGMENTS OF THE COURT OF APPEALS. 

THE FACTS ARE NOT IN DISPUTE.  PETITIONERS WERE INITIALLY EMPLOYED BY
RESPONDENT RAILROAD AS CARMEN HELPERS.  AT THE TIME OF THEIR ORIGINAL
EMPLOYMENT AND SINCE, THE RAILROAD HAS SUFFERED FROM A SHORTAGE OF
QUALIFIED JOURNEYMEN CARMEN MECHANICS.  THE COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE UNION REPRESENTING THE CARMEN, THE BROTHERHOOD
RAILWAY CARMEN OF AMERICA, AND THE RAILROAD HAS PROVIDED METHODS FOR
ALLEVIATING THIS SHORTAGE.  (FN4)  WHENEVER THE RAILROAD IS UNABLE TO
EMPLOY PERSONS PRESENTLY QUALIFIED AS CARMEN MECHANICS, THE AGREEMENT
PROVIDES FOR THE ADVANCEMENT OR "UPGRADING" OF CARMEN HELPERS TO
PROVISIONAL CARMAN STATUS.  REPRESENTATIVES OF THE RAILROAD AND THE
UNION JOINTLY SELECT THE HELPERS TO BE SO ADVANCED.  A HELPER THUS
"UPGRADED" CAN THEN BE EMPLOYED BY THE RAILROAD TO PERFORM THE WORK OF
A JOURNEYMAN CARMAN MECHANIC AND IS ENTITLED TO BE PAID A CARMAN
MECHANIC'S WAGE. 

UNDER THE LABOR AGREEMENT, HOWEVER, THE "UPGRADED" HELPER DOES NOT
IMMEDIATELY ACQUIRE PERMANENT SENIORITY AS A JOURNEYMAN.  HE RETAINS
HIS SENIORITY AS A HELPER UNTIL COMPLETING 1,040 DAYS OF ACTUAL WORK AS
A CARMAN MECHANIC.  AT THE END OF THAT TIME THE UPGRADED HELPER IS
CONSIDERED A "QUALIFIED CARMAN."  HE MAY THEN ACQUIRE A SENIORITY DATE
AS A JOURNEYMAN BY MAKING AN ELECTION TO THAT EFFECT IN WRITING. 

PETITIONERS WERE UPGRADED FROM CARMEN HELPERS IN ACCORDANCE WITH THE
TERMS OF THE AGREEMENT.  THEY WERE SUBSEQUENTLY INDUCTED INTO MILITARY
SERVICE.  AT THE TIME OF HIS INDUCTION, TILTON HAD WORKED 145 DAYS AS A
CARMAN, BECK 851 DAYS, AND MCCLEARN 21 DAYS.  UPON HIS HONORABLE
DISCHARGE FROM MILITARY SERVICE, EACH PETITIONER PROMPTLY RETURNED TO
EMPLOYMENT AT THE RAILROAD, WAS REEMPLOYED AS AN UPGRADED CARMAN, AND
THEREAFTER SATISFACTORILY COMPLETED THE REMAINDER OF THE 1,040-DAY WORK
PERIOD NECESSARY TO QUALIFY FOR JOURNEYMAN STATUS.  EACH, THEREUPON,
IMMEDIATELY ELECTED TO ACQUIRE SENIORITY AS A JOURNEYMAN CARMAN
MECHANIC.  IN EACH CASE, THE RAILROAD ESTABLISHED PETITIONERS'
SENIORITY AS JOURNEYMEN AS OF THE DATE EACH ACTUALLY COMPLETED THE
1,040-DAY WORK PERIOD.  AS A RESULT, PETITIONERS HAD JOURNEYMAN
SENIORITY JUNIOR TO THAT OF SOME CARMEN WHO HAD BEEN UPGRADED TO
PROVISIONAL CARMAN STATUS AFTER PETITIONERS WERE SO ADVANCED BUT WHO -
BECAUSE THEY WERE NOT ABSENT IN MILITARY SERVICE - WERE ABLE TO
COMPLETE THE 1,040-DAY SERVICE REQUIREMENT BEFORE PETITIONERS. 

THESE NONVETERANS ARE NOW AHEAD OF PETITIONERS ON THE JOURNEYMEN
CARMEN'S SENIORITY ROSTER AND ENJOY THE ADVANTAGES WHICH SENIORITY
DICTATES, SUCH AS WORK PREFERENCE AND ORDER OF LAYOFF AND RECALL. 

PETITIONERS CONTEND THAT UNDER THIS ARRANGEMENT THEIR ABSENCE IN
MILITARY SERVICE IMPROPERLY AFFECTED THEIR SENIORITY BECAUSE NONVETERAN
EMPLOYEES WHO WERE JUNIOR ON THE TEMPORARY UPGRADED LIST ARE NOW SENIOR
ON THE PERMANENT CARMEN'S LIST. 

PETITIONERS' CLAIM RESTS UPON SECS 9(C)(1) AND 9(C)(2) OF THE
UNIVERSAL MILITARY TRAINING AND SERVICE ACT.  IN SEC 9(C)(1) CONGRESS
DIRECTED THAT VETERANS RETURNING FROM MILITARY SERVICE BE RESTORED TO
THEIR CIVILIAN EMPLOYMENT "WITHOUT LOSS OF SENIORITY."  THIS PROVISION
WAS FIRST ENACTED AS PART OF THE NATIONAL GUARD ACT, JOINT RESOLUTION
OF AUGUST 27, 1940, C. 689, 54 STAT. 858.  THE CHAIRMAN OF THE HOUSE
MILITARY AFFAIRS COMMITTEE IN REPORTING THE CONFERENCE AND FINAL
VERSION OF THE BILL EXPLAINED THAT ONE OF THE PURPOSES OF THE
REEMPLOYMENT PROVISIONS WAS TO ENSURE RESTORATION OF THE VETERAN TO HIS
"SENIORITY STATUS."  86 CONG. REC. 10761.  THE REEMPLOYMENT PROVISIONS,
INCLUDING WHAT IS NOW SEC 9(C)(1), WERE CARRIED OVER INTO THE SELECTIVE
SERVICE BILL, 86 CONG. REC. 10922-10923, AND BECAME SEC 8 OF THE
SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, 890, AS
AMENDED, 50 U.S.C. APP. (1946 ED.)  SEC 308. 

IN FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. 275, THE
COURT FIRST CONSIDERED AND SPECIFICALLY INTERPRETED THE LANGUAGE IN SEC
8(C) OF THE 1940 ACT (FN5) DEALING WITH RESTORATION TO VETERANS OF
THEIR CIVILIAN EMPLOYMENT "WITHOUT LOSS OF SENIORITY."  THE COURT SAID:
"CONGRESS RECOGNIZED IN THE ACT THE EXISTENCE OF SENIORITY SYSTEMS AND
SENIORITY RIGHTS.  IT SOUGHT TO PRESERVE THE VETERAN'S RIGHTS UNDER
THOSE SYSTEMS AND TO PROTECT HIM AGAINST LOSS UNDER THEM BY REASON OF
HIS ABSENCE."  ID., AT 288.  THE COURT OBSERVED: 

"THUS HE DOES NOT STEP BACK ON THE SENIORITY ESCALATOR AT THE POINT
HE STEPPED OFF.  HE STEPS BACK ON AT THE PRECISE POINT HE WOULD HAVE
OCCUPIED HAD HE KEPT HIS POSITION CONTINUOUSLY DURING THE WAR."  ID.,
AT 284-285. 

THIS "ESCALATOR PRINCIPLE" WAS REAFFIRMED BY THE COURT IN
TRAILMOBILE CO. V. WHIRLS, 331 U.S. 40, AND RESTATED IN OAKLEY V.
LOUISVILLE & NASHVILLE R. CO., 338 U.S. 278, 283: 

"AN HONORABLY DISCHARGED VETERAN, COVERED BY THE STATUTE, IS ENTITLED
BY THE ACT TO BE RESTORED NOT TO A POSITION WHICH WOULD BE THE PRECISE
EQUIVALENT OF THAT WHICH HE HAD LEFT WHEN HE JOINED THE ARMED FORCES,
BUT RATHER TO A POSITION WHICH, ON THE MOVING ESCALATOR OF TERMS AND
CONDITIONS AFFECTING THAT PARTICULAR EMPLOYMENT, WOULD BE COMPARABLE TO
THE POSITION WHICH HE WOULD HAVE HELD IF HE HAD REMAINED CONTINUOUSLY
IN HIS CIVILIAN EMPLOYMENT." 

FOLLOWING THESE DECISIONS CONGRESS, IN 1948, EXPRESSLY APPROVED THE
"ESCALATOR PRINCIPLE" AND CONTINUOUS EMPLOYMENT STANDARD APPLIED BY THE
COURT BY ADOPTING SEC 9(C)(2) OF THE PRESENT ACT WHICH PROVIDES: 

"IT IS DECLARED TO BE THE SENSE OF THE CONGRESS THAT ANY PERSON WHO
IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF
PARAGRAPH (A) OR (B) OF SUBSECTION (B) OF THIS SECTION SHOULD BE SO
RESTORED IN SUCH MANNER AS TO GIVE HIM SUCH STATUS IN HIS EMPLOYMENT AS
HE WOULD HAVE ENJOYED IF HE HAD CONTINUED IN SUCH EMPLOYMENT
CONTINUOUSLY FROM THE TIME OF HIS ENTERING THE ARMED FORCES UNTIL THE
TIME OF HIS RESTORATION TO SUCH EMPLOYMENT."  62 STAT. 604, 615-616, AS
AMENDED, 50 U.S.C. APP. SEC 459(C)(2). 

THE MEANING OF SEC 8(C) OF THE 1940 ACT WHICH IS IDENTICAL WITH SEC
9(C)(1) OF THE PRESENT ACT.  MCKINNEY V. MISSOURI-KANSAS-TEXAS R. CO.,
357 U.S. 265, 271. 

IT WAS IN LIGHT OF THIS BACKGROUND THAT THE COURT DECIDED DIEHL V.
LEHIGH VALLEY R. CO., 348 U.S. 960, WHICH PETITIONERS CONTEND, AND
WHICH WE AGREE, CONTROLS THE PRESENT CASE.  DIEHL INVOLVED FACTS AND
ISSUES VIRTUALLY IDENTICAL WITH THOSE NOW BEFORE US.  DIEHL, LIKE
PETITIONERS, WAS A RAILROAD CARMAN HELPER TEMPORARILY "UPGRADED" TO
CARMAN STATUS.  HE WAS INDUCTED INTO MILITARY SERVICE WHILE HOLDING
THIS UPGRADED POSITION AND, UPON HIS RETURN WAS RESTORED TO IT.  THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE RAILROAD AND THE UNION
PROVIDED THAT UPGRADED CARMEN WHO HAD COMPLETED 1,160 DAYS OF WORK IN
THAT CAPACITY COULD ELECT JOURNEYMEN CARMAN STATUS.  UPGRADED MEN
JUNIOR TO DIEHL HAD COMPLETED THE REQUISITE WORK PERIOD WHILE HE WAS IN
SERVICE AND HAD BEEN GIVEN SENIORITY AHEAD OF DIEHL.  UPON COMPLETION
OF THE TRAINING PERIOD, DIEHL PROTESTED CLAIMING, AS PETITIONERS DO
HERE, THAT UNDER SECS 9(C)(1) AND 9(C)(2) OF THE ACT, HE WAS ENTITLED
TO SENIORITY AS OF THE EARLIER DATE ON WHICH HE WOULD HAVE COMPLETED
THE WORK PERIOD BUT FOR HIS ABSENCE IN MILITARY SERVICE.  THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT DECIDED AGAINST THE
VETERAN, ON THE GROUND THAT THE ACT PROTECTS ONLY RIGHTS WHICH ARE A
MERE FUNCTION OF TIME IN GRADE AND DOES NOT ENTITLE THE VETERAN TO BE
TREATED AS IF HE HAD BEEN ACTIVELY EMPLOYED OR TRAINED DURING THE
PERIOD OF MILITARY SERVICE.  THIS COURT REVERSED, PER CURIAM, HOLDING
THAT "UPON THE FACTS DISCLOSED IN THE OPINION OF THE COURT OF APPEALS
FOR THE THIRD CIRCUIT, 211 F.2D 95, THE APPLICABLE ACTS OF CONGRESS,
AND THE OPINION OF THIS COURT IN OAKLEY V. LOUISVILLE & NASHVILLE R.
CO., 338 U.S. 278, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED." 
DIEHL V. LEHIGH VALLEY R. CO., 348 U.S. 960. 

ALTHOUGH IT WOULD BE DIFFICULT TO CONCEIVE OF A MORE APPLICABLE AND
CONTROLLING PRECEDENT, THE COURT BELOW ATTEMPTED TO DISTINGUISH DIEHL
ON THE GROUND THAT THERE IT HAD BEEN STIPULATED THAT THE CLAIMANT
"WOULD HAVE COMPLETED" THE WORK PERIOD ON A GIVEN DATE IF THERE HAD
BEEN NO MILITARY SERVICE INTERRUPTION.  (FN6)  306 F.2D, AT 877. 
"THESE STIPULATED WORDS," THE COURT SAID, "IMPLY THAT THE WORK
COMPLETION WAS NOT DEPENDENT UPON PRIOR RESOLUTION OF ANY CONTINGENCY
OR UNCERTAINTY."   IBID.  THIS CASE, UNLIKE DIEHL THE COURT DECLARED,
"LACKS THE ESSENTIALS OF THE AUTOMATIC IN THE ENTIRE SYSTEM OF
PROMOTION FROM CARMAN HELPER TO FULL-FLEDGED CARMAN."  IBID.  THIS
DISTINCTION, IN OUR VIEW, IS UNTENABLE. 

THERE IS NO ROOM FOR DOUBT IN THIS CASE THAT "ON THE MOVING ESCALATOR
OF TERMS AND CONDITIONS AFFECTING THIS PARTICULAR EMPLOYMENT," OAKLEY
V. LOUISVILLE & NASHVILLE R. CO. 338 U.S. 278, 283, HAD PETITIONERS
REMAINED CONTINUOUSLY ON THE JOB DURING THE PERIOD OF THEIR MILITARY
SERVICE, THEY WOULD HAVE COMPLETED THE WORK PERIOD AND QUALIFIED AS
JOURNEYMEN IN ADVANCE OF THOSE WHO PASSED THEM IN SENIORITY DURING
THEIR ABSENCE.  EACH PETITIONER WAS ENTITLED, UNDER THE LABOR
AGREEMENT, TO DO CARMAN'S WORK AHEAD OF ANY UPGRADED AFTER HIM.  IT WAS
ONLY BECAUSE OF PETITIONERS' MILITARY SERVICE THAT MEN UPGRADED AFTER
THEM WERE ABLE TO WORK MORE DAYS AS PROVISIONAL CARMEN AND TO QUALIFY
AS JOURNEYMEN BEFORE THEM.  BUT FOR THEIR ABSENCE, PETITIONERS WOULD
HAVE QUALIFIED AS JOURNEYMEN CARMEN AND ACHIEVED THE SENIORITY DATES
THEY NOW CLAIM.  THIS WAS CONFIRMED BY THE TESTIMONY OF THE RAILROAD'S
CHIEF PERSONNEL OFFICER, MR. SMITH, WHO IN EFFECT CONCEDED THAT THE
RAILROAD UNDER THE COLLECTIVE BARGAINING AGREEMENT HAD NO DISCRETION TO
REFUSE JOURNEYMAN'S STATUS TO A HELPER WHO HAD SUCCESSFULLY COMPLETED
THE WORK PERIOD: 

"Q.  NOW, YOU HAVE TESTIFIED THAT THESE MEN, WHEN THEY COMPLETED
THEIR THREE YEARS OR THOUSAND AND FORTY DAYS OF WORK, DID NOT
AUTOMATICALLY ACQUIRE CARMAN SENIORITY.  AS SOON AS THEY MADE AN
ELECTION, THE RAILROAD HAD NO CHOICE BUT TO GIVE THEM THE SENIORITY,
DID IT? 

     *         *    *         *         * 

"A.  (MR. SMITH) THAT'S RIGHT. 

"Q.  IN OTHER WORDS, AS SOON AS THEY COMPLETED THE WORK REQUIREMENT,
MADE THE ELECTION AS OF THAT TIME, THEY BECAME CARMEN AND DREW A
SENIORITY DATE? 

"A.  (MR. SMITH) CORRECT." 

IT IS EVIDENT, THEREFORE, THAT PROMOTION UPON COMPLETION OF THE
TRAINING PERIOD WAS AS AUTOMATIC HERE AS IN DIEHL. 

THE COURT OF APPEALS, ALTERNATIVELY, REFUSED TO FOLLOW DIEHL ON THE
ASSUMPTION THAT IT WAS OVERRULED SUB SILENTIO BY THE SUBSEQUENT
DECISION OF THIS COURT IN MCKINNEY V. MISSOURI-KANSAS-TEXAS R. CO., 357
U.S. 265.  THE COURT BELOW INTERPRETED MCKINNEY TO HOLD THAT FOR A
VETERAN TO BE ENTITLED TO AN ADVANCEMENT IN STATUS, "THE PROMOTION IN
QUESTION MUST BE AUTOMATIC AND  ...  SEEMINGLY  ...  AUTOMATIC AS A
MATTER OF FORESIGHT RATHER THAN OF HINDSIGHT."  306 F.2D, AT 876.  THE
COURT CONCLUDED THAT ADVANCEMENT TO JOURNEYMAN CARMAN STATUS IN THE
INSTANT CASES DID NOT MEET THAT STANDARD BECAUSE IT WAS SUBJECT TO
CERTAIN CONTINGENCIES OR "VARIABLES":  LAY-OFFS DUE TO ILLNESS OR
REDUCTION IN FORCE; THE CONTINUING UNAVAILABILITY OF ENOUGH QUALIFIED
CARMEN TO FILL CARMEN'S POSITIONS; CONTINUING SATISFACTORY WORK BY
PETITIONERS IN THE UPGRADED POSITION; AND PETITIONERS' DECISIONS AS TO
WHETHER OR NOT TO ELECT FULL CARMAN STATUS.  306 F.2D, AT 877.  (FN7)
ACCORDINGLY, THE COURT OF APPEALS HELD THE EVENTUAL ACQUISITION BY
PETITIONERS OF JOURNEYMAN CARMAN STATUS COULD NOT HAVE BEEN FORESEEN
WITH ABSOLUTE CERTAINTY AT THE TIME THEY ENTERED MILITARY SERVICE AND
THAT, UNDER MCKINNEY, THEY WERE THEREFORE NOT ENTITLED TO SENIORITY
STATUS AS OF THE DATE THEY WOULD PROBABLY HAVE ACHIEVED IT BUT FOR
THEIR MILITARY SERVICE. 

IN THIS READING OF MCKINNEY, THE COURT OF APPEALS ERRED.  MCKINNEY
WAS NOT INTENDED TO AND DID NOT OVERRULE DIEHL.  NOR DID MCKINNEY
ESTABLISH A REQUIREMENT OF ABSOLUTE FORESEEABILITY.  THAT CASE DID NOT
INVOLVE THE DIEHL-TYPE SITUATION WHERE ADVANCEMENT DEPENDS ESSENTIALLY
UPON CONTINUING EMPLOYMENT.  IT TURNED UPON THE FACT THAT THE
COLLECTIVE BARGAINING AGREEMENT THERE IN ISSUE MADE THE EXERCISE OF
MANAGEMENT DISCRETION A PREREQUISITE TO PROMOTION.  THE COURT
CONCLUDED, THEREFORE, THAT THE ADVANCEMENT WAS NOT BASICALLY DEPENDENT
UPON CONTINUED EMPLOYMENT.  THIS IS CLEAR FROM THE COURT'S STATEMENT
THAT:    "PROMOTION TO A GROUP 1 POSITION FROM GROUP 2, IN WHICH
PETITIONER HAD FORMERLY BEEN EMPLOYED, IS NOT DEPENDENT SIMPLY ON
SENIORITY.  UNDER RULE 1(3)(A) OF THE COLLECTIVE BARGAINING AGREEMENT
IT IS DEPENDENT ON FITNESS AND ABILITY AND THE EXERCISE OF A
DISCRIMINATING MANAGERIAL CHOICE  ...  .  THE STATUTE DOES NOT ENVISAGE
OVERRIDING AN EMPLOYER'S DISCRETIONARY CHOICE BY ANY SUCH MANDATORY
PROMOTION."  357 U.S., AT 272. 

FURTHERMORE, THE COURT'S MANDATE IN MCKINNEY SUPPORTS THE VIEW THAT
THE COURT DID NOT ADOPT A RULE OF ABSOLUTE FORESEEABILITY.  IN
REMANDING THE CASE, THE COURT GRANTED MCKINNEY LEAVE TO AMEND HIS
COMPLAINT TO ALLEGE, IF SUCH WAS THE FACT, THAT IN PRACTICE UNDER THE
COLLECTIVE BARGAINING AGREEMENT "ADVANCEMENT FROM GROUP 2 TO GROUP 1 IS
AUTOMATIC."  357 U.S., AT 274.  IF THE COURT HAD INTENDED TO ADOPT A
RULE OF ABSOLUTE FORESEEABILITY OF AUTOMATIC ADVANCEMENT, IT WOULD NOT
HAVE PERMITTED MCKINNEY TO AMEND HIS COMPLAINT.  IT WAS APPARENT THAT
MCKINNEY, WHEN HE LEFT FOR SERVICE, COULD NOT HAVE PREDICTED WITH
ABSOLUTE CERTAINTY THAT A GROUP 1 POSITION WOULD FALL VACANT IN HIS
ABSENCE; THAT HE WOULD BE IN ADEQUATE HEALTH TO BID FOR IT; THAT HE
WOULD ELECT TO BID FOR IT; AND THAT HE WOULD NOT HAVE LOST HIS LOWER
POSITION BECAUSE OF UNSATISFACTORY PERFORMANCE.  PROPERLY READ,
THEREFORE, MCKINNEY HOLDS THAT WHERE ADVANCEMENT DEPENDS ON AN
EMPLOYER'S DISCRETIONARY CHOICE NOT EXERCISED PRIOR TO ENTRY INTO
SERVICE, A RETURNING VETERAN CANNOT SHOW WITHIN THE REASONABLE
CERTAINTY REQUIRED BY THE ACT THAT HE WOULD HAVE ENJOYED ADVANCEMENT
SIMPLY BY VIRTUE OF CONTINUING EMPLOYMENT DURING THE TIME HE WAS IN
MILITARY SERVICE.  (FN8) 

IT WOULD BE VIRTUALLY IMPOSSIBLE FOR A VETERAN TO SHOW, AS THE COURT
OF APPEALS WOULD REQUIRE, THAT IT WAS ABSOLUTELY CERTAIN, "AS A MATTER
OF FORESIGHT" WHEN HE ENTERED MILITARY SERVICE, THAT ALL CIRCUMSTANCES
ESSENTIAL TO OBTAINING AN ADVANCEMENT IN STATUS WOULD LATER OCCUR.  TO
EXACT SUCH CERTAINTY AS A CONDITION FOR INSURING A VETERAN'S SENIORITY
RIGHTS WOULD RENDER THESE STATUTORILY PROTECTED RIGHTS WITHOUT REAL
MEANING.  AS BENJAMIN FRANKLIN OBSERVED, "IN THIS WORLD NOTHING IS
CERTAIN BUT DEATH AND TAXES."  IN EVERY VETERAN SENIORITY CASE THE
POSSIBILITY EXISTS THAT WORK OF THE PARTICULAR TYPE MIGHT NOT HAVE BEEN
AVAILABLE; THAT THE VETERAN WOULD NOT HAVE WORKED SATISFACTORILY DURING
THE PERIOD OF HIS ABSENCE; THAT HE MIGHT NOT HAVE ELECTED TO ACCEPT THE
HIGHER POSITION; OR THAT SICKNESS MIGHT HAVE PREVENTED HIM FROM
CONTINUING HIS EMPLOYMENT.  IN LIGHT OF THE PURPOSE AND HISTORY OF THIS
STATUTE, HOWEVER, WE CANNOT ASSUME THAT CONGRESS INTENDED POSSIBILITIES
OF THIS SORT TO DEFEAT THE VETERAN'S SENIORITY RIGHTS.  "THIS
LEGISLATION," THE COURT SAID IN FISHGOLD V. SULLIVAN DRYDOCK & REPAIR
CORP., SUPRA, AT 285, "IS TO BE LIBERALLY CONSTRUED FOR THE BENEFIT OF
THOSE WHO LEFT PRIVATE LIFE TO SERVE THEIR COUNTRY  ...  ."  SO
CONSTRUED, WE CONCLUDE THAT CONGRESS INTENDED A REEMPLOYED VETERAN,
WHO, UPON RETURNING FROM MILITARY SERVICE, SATISFACTORILY COMPLETES HIS
INTERRUPTED TRAINING, TO ENJOY THE SENIORITY STATUS WHICH HE WOULD HAVE
ACQUIRED BY VIRTUE OF CONTINUED EMPLOYMENT BUT FOR HIS ABSENCE IN
MILITARY SERVICE.  THIS REQUIREMENT IS MET IF, AS A MATTER OF
FORESIGHT, IT WAS REASONABLY CERTAIN THAT ADVANCEMENT WOULD HAVE
OCCURRED, AND IF, AS A MATTER OF HINDSIGHT, IT DID IN FACT OCCUR. 

THIS DOES NOT MEAN THAT UNDER SECS 9(C)(1) AND 9(C)(2) THE VETERAN,
UPON RETURNING FROM SERVICE, MUST BE CONSIDERED FOR PROMOTION OR
SENIORITY PURPOSES AS IF HE HAD CONTINUED TO WORK ON THE JOB.  A
RETURNING VETERAN CANNOT CLAIM A PROMOTION THAT DEPENDS SOLELY UPON
SATISFACTORY COMPLETION OF A PREREQUISITE PERIOD OF EMPLOYMENT TRAINING
UNLESS HE FIRST WORKS THAT PERIOD.  BUT UPON SATISFACTORILY COMPLETING
THAT PERIOD, AS PETITIONERS DID HERE, HE CAN INSIST UPON A SENIORITY
DATE REFLECTING THE DELAY CAUSED BY MILITARY SERVICE.  ANY LESSER
PROTECTION, WOULD DENY HIM THE BENEFIT OF THE SALUTARY PROVISIONS OF
SECS 9(C)(1) AND 9(C)(2) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE
ACT.  THE JUDGMENTS OF THE COURT OF APPEALS ARE REVERSED AND THE CAUSE
REMANDED FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 62
STAT. 614, AS AMENDED, 50 U.S.C. APP. SEC 459, PROVIDES IN RELEVANT
PART AS FOLLOWS: 

     *  *         *         *         * 

"(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, AND (2) MAKES APPLICATION FOR REEMPLOYMENT WITHIN
NINETY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE OR FROM
HOSPITALIZATION CONTINUING AFTER DISCHARGE FOR A PERIOD OF NOT MORE
THAN ONE YEAR: 

     *         *         *  *         * 

"(B)  IF SUCH POSITION WAS IN THE EMPLOY OF A PRIVATE EMPLOYER, SUCH
PERSON SHALL: 

"(I)  IF STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, BE
RESTORED BY SUCH EMPLOYER OR HIS SUCCESSOR IN INTEREST TO SUCH POSITION
OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY; OR: 

"(II)  IF NOT QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION BY
REASON OF DISABILITY SUSTAINED DURING SUCH SERVICE BUT QUALIFIED TO
PERFORM THE DUTIES OF ANY OTHER POSITION IN THE EMPLOY OF SUCH EMPLOYER
OR HIS SUCCESSOR IN INTEREST, BE RESTORED BY SUCH EMPLOYER OR HIS
SUCCESSOR IN INTEREST TO SUCH OTHER POSITION THE DUTIES OF WHICH HE IS
QUALIFIED TO PERFORM AS WILL PROVIDE HIM LIKE SENIORITY, STATUS, AND
PAY, OR THE NEAREST APPROXIMATION THEREOF CONSISTENT WITH THE
CIRCUMSTANCES IN HIS CASE: 

"UNLESS THE EMPLOYER'S CIRCUMSTANCES HAVE SO CHANGED AS TO MAKE IT
IMPOSSIBLE OR UNREASONABLE TO DO SO: 

     *         * *         *         * 

"(C)(1)  ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH
THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) OF THIS
ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE ARMED FORCES,
SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO
PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER
PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON
FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME
SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED
FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH
RESTORATION. 

"(2)  IT IS DECLARED TO BE THE SENSE OF THE CONGRESS THAT ANY PERSON
WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF
PARAGRAPH (A) OR (B) OR SUBSECTION (B) OF THIS SECTION SHOULD BE SO
RESTORED IN SUCH MANNER AS TO GIVE HIM SUCH STATUS IN HIS EMPLOYMENT AS
HE WOULD HAVE ENJOYED IF HE HAD CONTINUED IN SUCH EMPLOYMENT
CONTINUOUSLY FROM THE TIME OF HIS ENTERING THE ARMED FORCES UNTIL THE
TIME OF HIS RESTORATION TO SUCH EMPLOYMENT." 

FN2  PETITIONERS WERE REPRESENTED BY THE UNITED STATES ATTORNEY,
PURSUANT TO THE PROVISIONS OF 50 U.S.C. APP. SEC 459(D).  THE RAILWAY
EMPLOYES' DEPARTMENT, AFL-CIO, HAS FILED IN THIS COURT A BRIEF AMICUS
CURIAE OPPOSING PETITIONERS' CLAIMS. 

FN3  THE OPINION OF THE DISTRICT COURT IS NOT REPORTED. 

FN4  THE AGREEMENT PROVIDES IN PERTINENT PART: 

"A HELPER WHO HAS BEEN OR WHO IS LATER ADVANCED TO CARMAN WILL RETAIN
SENIORITY AS HELPER.  WHEN HE HAS COMPLETED A TOTAL OF 1040 DAYS OF
SERVICE AS CARMAN HE SHALL BE CONSIDERED AS A QUALIFIED CARMAN.  AT THE
COMPLETION OF THE 1040 DAYS OF SERVICE HE WILL MAKE HIS CHOICE IN
WRITING TO ACQUIRE A SENIORITY DATE AS CARMAN AS OF THE ENDING DATE OF
THE 1040 DAYS OF SERVICE AS SUCH AND RELINQUISH HIS SENIORITY AS
HELPER.  IF HE FAILS TO DO SO HE WILL RETURN TO STATUS OF HELPER AND
WILL NOT AGAIN BE CONSIDERED IN THE SELECTION OF MEN FOR ADVANCEMENT
UNDER THIS AGREEMENT.  HE MAY, HOWEVER, AT A LATER DATE BE EMPLOYED AS
A CARMAN AND ACQUIRE A SENIORITY DATE AS CARMAN AS OF THE DATE SO
EMPLOYED BUT WILL AUTOMATICALLY LOSE SENIORITY AS A HELPER." 

FN5  THE PRESENT SEC 9(C)(1) IS A REENACTMENT OF SEC 9(C)(1) OF THE
SELECTIVE SERVICE ACT OF 1948, 62 STAT. 604, 614, AS AMENDED, 50 U.S.C.
APP. SEC 459, WHICH HAD REENACTED SEC 8(C) OF THE SELECTIVE TRAINING
AND SERVICE ACT OF 1940. 

FN6  IT IS NOT ABSOLUTELY CLEAR THAT THERE WAS SUCH A STIPULATION IN
DIEHL.  THE COURT OF APPEALS IN TILTON SAID:  "THE PARTIES IN THEIR
BRIEFS HERE BOTH REFER TO A STIPULATION IN DIEHL.  WE FIND NO CLEAR
REFERENCE TO A STIPULATION IN THE OPINIONS OF EITHER THE THIRD CIRCUIT
OR THE DISTRICT COURT.  INASMUCH, HOWEVER, AS THE PLAINTIFFS' PRESENT
COUNSEL ARGUED THE DIEHL CASE IN THE SUPREME COURT, WE ASSUME THE
EXISTENCE OF THE STIPULATION."  306 F.2D, AT 877, N. 8. 

FN7  THESE CONTINGENCIES WERE PRESENT IN DIEHL BUT DID NOT BAR
RELIEF. 

FN8  THE ONLY DISCRETION IN THE PRESENT CASE WAS THAT VESTED IN THE
RAILROAD AND UNION TO SELECT FROM AMONG THE CARMEN HELPERS THOSE TO BE
UPGRADED.  THIS DISCRETION HAD BEEN EXERCISED IN PETITIONERS' FAVOR
PRIOR TO THEIR ENTRY INTO MILITARY SERVICE. 
..END :










BROOKS V. MISSOURI PACIFIC RAILROAD CO. 376 U.S. 182 


NO. 53.  ARGUED JANUARY 7-8, 1964.  - DECIDED FEBRUARY 17, 1964.  - 308
F.2D 531, REVERSED AND REMANDED. 


THE APPRENTICESHIP PROGRAM OF PETITIONER, AN APPRENTICE MACHINIST
EMPLOYED BY RESPONDENT RAILROAD, WAS DELAYED BY HIS MILITARY SERVICE,
AND BECAUSE OF A LAYOFF HE ULTIMATELY COMPLETED THAT PROGRAM AT A
LOCATION DIFFERENT FROM WHERE HE BEGAN IT.  IN A PROCEEDING BY
PETITIONER TO ESTABLISH HIS SENIORITY AS JOURNEYMAN UNDER SEC 9 OF THE
UNIVERSAL MILITARY TRAINING AND SERVICE ACT, THE DISTRICT COURT
DIRECTED THE RAILROAD TO GRANT HIM SENIORITY STATUS AT THE PLACE WHERE
HE COMPLETED HIS APPRENTICESHIP AND AS OF THE TIME HE WOULD HAVE
COMPLETED IT BUT FOR HIS MILITARY SERVICE.  THE COURT OF APPEALS
REVERSED ON THE GROUND THAT PETITIONER'S ADVANCEMENT LACKED
"PREDICTABLE CERTAINTY."  HELD:  PETITIONER'S OTHERWISE AUTOMATIC
ADVANCEMENT FROM APPRENTICE TO JOURNEYMAN DID NOT LACK REASONABLE
FORESEEABILITY SO AS TO DEFEAT HIS CLAIM FOR SENIORITY UNDER SEC 9 OF
THE ACT BECAUSE OF THE POSSIBILITY THAT "THE BALANCE BETWEEN THE SUPPLY
AND DEMAND" OF LABOR AT A CERTAIN POINT AND DATE WOULD HAVE PREVENTED
SUCH ADVANCEMENT.  TILTON V. MISSOURI PAC. R. CO., ANTE, AT P. 169,
FOLLOWED.  PP. 183-185. 

BROOKS V. MISSOURI PACIFIC RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS CASE DIFFERS ONLY SLIGHTLY FROM TILTON V. MISSOURI PAC. R. CO.
DECIDED TODAY.  ANTE, AT 169.  PETITIONER HERE WAS HIRED BY THE
RAILROAD ON JULY 5, 1951, TO SERVE AS AN APPRENTICE MACHINIST IN
MONROE, LOUISIANA.  AFTER COMPLETING SEVEN MONTHS OF APPRENTICESHIP, HE
WAS DRAFTED INTO MILITARY SERVICE.  HE WAS HONORABLY DISCHARGED ON
NOVEMBER 7, 1953, AND IMMEDIATELY RETURNED TO WORK AS AN APPRENTICE IN
MONROE.  ON APRIL 29, 1954, PETITIONER WAS LAID OFF BECAUSE OF THE
TERMINATION OF THE APPRENTICESHIP PROGRAM AT MONROE.  ON JULY 6, 1954,
HE RESUMED HIS APPRENTICESHIP WITH THE RAILROAD IN ST. LOUIS,
MISSOURI.  ON JULY 25, 1955, AT HIS REQUEST AND WITH THE RAILROAD'S
APPROVAL, PETITIONER WAS TRANSFERRED TO THE RAILROAD'S SHOPS IN NORTH
LITTLE ROCK, ARKANSAS, WHERE HE COMPLETED HIS APPRENTICESHIP ON JANUARY
23, 1958.  HE WAS IMMEDIATELY EMPLOYED AT THE NORTH LITTLE ROCK SHOPS
AS A JOURNEYMAN MACHINIST AND ASSIGNED A SENIORITY RATING AS OF THAT
DATE AND LOCATION. 

PETITIONER SOUGHT A NORTH LITTLE ROCK SENIORITY DATE OF NOVEMBER 3,
1955.  HE CLAIMED THAT BUT FOR HIS MILITARY SERVICE, HE WOULD HAVE
COMPLETED HIS APPRENTICESHIP ON THAT DATE AND AT THAT LOCATION.  THE
RAILROAD OFFERED HIM THAT SENIORITY DATE, BUT ONLY AT THE MONROE
LOCATION.  PETITIONER DECLINED THIS OFFER ON THE GROUND THAT THERE WERE
NO EMPLOYMENT OPPORTUNITIES AT THAT LOCATION. 

PETITIONER BROUGHT SUIT IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF ARKANSAS.  THE COURT FOUND,* ON THE BASIS OF ADEQUATE
EVIDENCE, THAT "IN PRACTICE  ...  DISCRETION HAD NO PLAY  ...  .
TRANSITION FROM THE RANK OF APPRENTICE TO THE RANK OF MECHANIC WAS
AUTOMATIC."  IT ALSO FOUND THAT "IN NO EVENT WOULD PLAINTIFF HAVE
COMPLETED HIS APPRENTICESHIP AT MONROE."  BUT FOR HIS MILITARY SERVICE
HE "WOULD HAVE COMPLETED HIS TRAINING IN 1955  ...  AND  ...  AS OF
THAT TIME HE WAS EMPLOYED IN THE NORTH LITTLE ROCK SHOPS AND WOULD HAVE
BEEN HIRED THERE AUTOMATICALLY AS A JOURNEYMAN MECHANIC.  HAD HE BEEN
SO EMPLOYED AT THAT TIME, HIS SENIORITY POINT WOULD HAVE BEEN FIXED AT
NORTH LITTLE ROCK UNDER THE ACTUAL PRACTICE OF THE RAILROAD AND THE
UNION IN CONNECTION WITH THE INITIAL EMPLOYMENT OF MECHANICS." 
ACCORDINGLY, THE DISTRICT COURT DIRECTED THE RAILROAD TO GRANT HIM
SENIORITY AS OF NOVEMBER 3, 1955, AT NORTH LITTLE ROCK. 

*THE OPINION OF THE DISTRICT COURT IS NOT REPORTED. 

THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT REVERSED, 308 F.2D 531,
ON THE BASIS OF ITS EARLIER DECISION IN TILTON V. MISSOURI PAC. R. CO.,
306 F.2D 870.  THE COURT HELD THAT THE ADVANCEMENT FROM APPRENTICE TO
JOURNEYMAN LACKED THE PREDICTABLE CERTAINTY REQUIRED BY THE TILTON
DECISION, BECAUSE "THE BALANCE BETWEEN SUPPLY AND DEMAND OF A
PARTICULAR CATEGORY OF WORKMEN AT A DESIGNATED POINT AT A FUTURE DATE
CANNOT BE FORESEEN OR PREDICTED WITH ANY DEGREE OF CERTAINTY."  308
F.2D, AT 533.  WE GRANTED CERTIORARI, 372 U.S. 904. 

WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS FOR THE REASONS
STATED IN TILTON, ANTE, AT 169.  AS WE SAID IN THAT CASE: 

"IN EVERY VETERAN SENIORITY CASE THE POSSIBILITY EXISTS THAT WORK OF
THE PARTICULAR TYPE MIGHT NOT HAVE BEEN AVAILABLE; THAT THE VETERAN
WOULD NOT HAVE WORKED SATISFACTORILY DURING THE PERIOD OF HIS ABSENCE;
THAT HE MIGHT NOT HAVE ELECTED TO ACCEPT THE HIGHER POSITION; OR THAT
SICKNESS MIGHT HAVE PREVENTED HIM FROM CONTINUING HIS EMPLOYMENT.  IN
LIGHT OF THE PURPOSE AND HISTORY OF THIS STATUTE, HOWEVER, WE CANNOT
ASSUME THAT CONGRESS INTENDED POSSIBILITIES OF THIS SORT TO DEFEAT THE
VETERAN'S SENIORITY RIGHTS."  ANTE, AT 180-181. 

WE THINK THAT THE FOREGOING ANALYSIS IS DISPOSITIVE OF THE PROBLEM
HERE.  THE POSSIBILITY THAT THE "BALANCE BETWEEN SUPPLY AND DEMAND"
WOULD HAVE PREVENTED PETITIONER'S OTHERWISE AUTOMATIC PROMOTION SHOULD
NOT DEFEAT HIS SENIORITY CLAIM.  THIS POSSIBILITY, LIKE THE
POSSIBILITIES DISCUSSED IN TILTON, ALWAYS EXISTS. 

WE ACCEPT THE CONCLUSION OF THE DISTRICT COURT THAT BUT FOR
PETITIONER'S MILITARY SERVICE, HE PROBABLY WOULD HAVE ACHIEVED, BY
VIRTUE OF CONTINUED SATISFACTORY EMPLOYMENT, SENIORITY STATUS AS A
JOURNEYMAN MECHANIC IN NORTH LITTLE ROCK ON NOVEMBER 3, 1955.  IT
FOLLOWS, THEREFORE, THAT HE IS ENTITLED TO THIS STATUS UNDER THE
RELEVANT STATUTES.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED
AND THE CAUSE REMANDED FOR PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED AND REMANDED. 
..END :












ARLAN'S DEPARTMENT STORE V. KENTUCKY 376 U.S. 186 


NO. 665.  DECIDED FEBRUARY 17, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  369 S.W.2D 9. 


ARLAN'S DEPARTMENT STORE OF LOUISVILLE, INC., V. KENTUCKY. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















METROMEDIA, INC. V. PASADENA 376 U.S. 186 


NO. 659.  DECIDED FEBRUARY 17, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  216 CAL. APP. 2D 270,
30 CAL. RPTR.  731. 


METROMEDIA, INC., ET AL. V. CITY OF PASADENA ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















PERSINGER V. WASHINGTON 376 U.S. 187 


NO. 745, MISC.  DECIDED FEBRUARY 17, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  62 WASH. 2D 362, 382 P.2D 497. 


PERSINGER V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BROOKS V. FLORIDA 376 U.S. 187 


NO. 681.  DECIDED FEBRUARY 17, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


BROOKS V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















KOTEK V. BENNETT 376 U.S. 188 


NO. 908, MISC.  DECIDED FEBRUARY 17, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  255 IOWA 984, 124 N.W.2D 710. 


KOTEK V. BENNETT, WARDEN. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ROGERS V. UNITED STATES 376 U.S. 188 


NO. 412, MISC.  DECIDED FEBRUARY 17, 1964.  - CERTIORARI GRANTED;
JUDGMENT VACATED; AND CASE REMANDED.  - REPORTED BELOW:  313 F.2D 425. 


ROGERS V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  UPON CONSIDERATION OF THE ENTIRE
RECORD, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TO RECONSIDER THE
CONVICTION ON COUNT NINE IN LIGHT OF THE GOVERNMENT'S CONFESSION OF
ERROR AND TO DETERMINE WHETHER THE JUDGMENT OF THE DISTRICT COURT
SHOULD BE AFFIRMED ON THE BASIS OF THE CONVICTION UNDER COUNT SEVEN. 
..END :











CITY OF NEW ORLEANS V. BARTHE 376 U.S. 189 


NO. 663.  DECIDED FEBRUARY 17, 1964.  - APPEAL DISMISSED; CERTIORARI
GRANTED; AND JUDGMENT AFFIRMED.  - REPORTED BELOW:  219 F. SUPP. 788. 


CITY OF NEW ORLEANS ET AL. V. BARTHE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A
WRIT OF CERTIORARI, BEFORE JUDGMENT,* PURSUANT TO 28 U.S.C. SEC
1254(1), TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT,
THE PETITION IS GRANTED.  THE JUDGMENT OF THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF LOUISIANA IS AFFIRMED.  TURNER V.
CITY OF MEMPHIS, 369 U.S. 350; WATSON V. CITY OF MEMPHIS, 373 U.S.
526. 

*SEE GRIFFIN V. PRINCE EDWARD COUNTY BD., 375 U.S. 391, AND CASES
CITED. 

MR. JUSTICE BLACK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITE ARE OF
THE OPINION THAT THIS CASE IS NOT APPEALABLE TO THIS COURT UNDER 28
U.S.C. SEC 1253 BUT IS APPEALABLE TO THE COURT OF APPEALS UNDER 28
U.S.C. SEC 1291, AND THAT THIS COURT SHOULD DISMISS THE APPEAL FOR THE
COURT OF APPEALS TO CONSIDER AND DECIDE THE APPEAL OF THIS CASE NOW
PROPERLY PENDING BEFORE IT.  SEE BAILEY V. PATTERSON, 369 U.S. 31. 
..END :






















NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. WEBB'S
CITY, INC. 376 U.S. 190 


NO. 362.  DECIDED FEBRUARY 17, 1964.  - MOTION TO ADVANCE DENIED;
JUDGMENT VACATED; AND CAUSE REMANDED.  - REPORTED BELOW:  152 SO. 2D
179. 


NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE ET AL. V.
WEBB'S CITY, INC. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND
DISTRICT. 

PER CURIAM. 

PETITIONERS' MOTION TO ADVANCE IS DENIED.  ON RESPONDENT'S SUGGESTION
OF MOOTNESS, THE JUDGMENT OF THE DISTRICT COURT OF APPEALS OF FLORIDA,
SECOND DISTRICT, IS VACATED AND THE CAUSE REMANDED TO THAT COURT FOR
APPROPRIATE PROCEEDINGS TO EFFECTUATE RESPONDENT'S REPRESENTATION THAT
THE INJUNCTION BELOW WILL BE SET ASIDE, WITHOUT PREJUDICE TO THE RIGHT
OF PETITIONER TO MOVE TO VACATE TODAY'S ORDER IN THE EVENT THE
INJUNCTION IS NOT PROMPTLY VACATED BY THE TRIAL COURT. 
..END :








COX V. KANSAS 376 U.S. 191 


NO. 453, MISC.  DECIDED FEBRUARY 17, 1964.  - CERTIORARI GRANTED;
JUDGMENT VACATED; AND CASE REMANDED.  - REPORTED BELOW:  191 KAN. 326,
456, 380 P.2D 316, 381 P.2D 704. 


COX V. KANSAS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF KANSAS FOR FURTHER
CONSIDERATION IN LIGHT OF DOUGLAS V. CALIFORNIA, 372 U.S. 353, AND
DAEGELE V. KANSAS, 375 U.S. 1. 
..END :













REISMAN, DBA TRAMMELL, RAND & NATHAN V. CAPLIN 375 U.S. 440 


NO. 119.  ARGUED DECEMBER 12, 1963.  - DECIDED JANUARY 20, 1964.  - 115
U.S. APP. D.C. 59, 317 F.2D 123, AFFIRMED ON OTHER GROUNDS. 


PETITIONERS, ATTORNEYS FOR TAXPAYERS MR. AND MRS. BROMLEY, SEEK
DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE COMMISSIONER OF INTERNAL
REVENUE AND AN ACCOUNTING FIRM WHICH AT THE INSTANCE OF PETITIONERS HAS
BEEN WORKING ON THE FINANCIAL RECORDS OF THE BROMLEYS.  PETITIONERS
CLAIM AS NULL AND VOID SUMMONSES ISSUED TO THE ACCOUNTING FIRM BY THE
COMMISSIONER, UNDER SEC. 7602 OF THE INTERNAL REVENUE CODE OF 1954,
DIRECTING THE PRODUCTION, BEFORE A HEARING OFFICER, OF "ALL AUDIT
REPORTS, WORK PAPERS AND CORRESPONDENCE" IN THE FIRM'S CUSTODY
PERTAINING TO MR. BROMLEY AND HIS SEVERAL BUSINESS INTERESTS.  THE
CONTENTION IS THAT THE ENFORCED PRODUCTION OF THE PAPERS IS AN UNLAWFUL
APPROPRIATION OF PETITIONERS' WORK PRODUCT AND TRIAL PREPARATION AS
WELL AS AN UNREASONABLE SEIZURE REQUIRING THE BROMLEYS TO INCRIMINATE
THEMSELVES AND DEPRIVING THEM OF THE EFFECTIVE ASSISTANCE OF COUNSEL. 
HELD:  PETITIONERS HAVE AN ADEQUATE REMEDY AT LAW AND THE COMPLAINT IS
PROPERLY DISMISSED FOR WANT OF EQUITY.  PP. 445-450. 

1.  A WITNESS OR ANY INTERESTED PARTY MAY ATTACK BEFORE THE HEARING
OFFICER, ON CONSTITUTIONAL OR OTHER GROUNDS, A SUMMONS ISSUED UNDER
SEC. 7602.  P. 445. 

2.  ANY ACTION TO ENFORCE A SUMMONS ISSUED UNDER SEC. 7602 MUST BE
COMMENCED IN A DISTRICT COURT OR BEFORE A UNITED STATES COMMISSIONER;
SUCH ENFORCEMENT ACTION WOULD BE AN ADVERSARY PROCEEDING AFFORDING A
JUDICIAL DETERMINATION OF THE CHALLENGES TO THE SUMMONS AND GIVING
COMPLETE PROTECTION TO THE WITNESS.  PP. 445-446. 

3.  THE CONTENTION THAT THE PENALTIES OF CONTEMPT RISKED BY A REFUSAL
TO COMPLY WITH THE SUMMONSES ARE SO SEVERE THAT THE STATUTORY PROCEDURE
AMOUNTS TO A DENIAL OF JUDICIAL REVIEW CANNOT BE SUSTAINED, SINCE
NONCOMPLIANCE IS NOT SUBJECT TO PROSECUTION UNDER SEC. 7210 WHEN THE
SUMMONS IS ATTACKED IN GOOD FAITH.  PP. 446-447. 

4.  THE PROVISION OF SEC. 7604(B) FOR AN "ATTACHMENT  ...  AS FOR A
CONTEMPT" IS APPLICABLE ONLY TO PERSONS WHO ARE SUMMONED AND WHOLLY
MAKE DEFAULT OR CONTUMACIOUSLY REFUSE TO COMPLY.  PP. 447-448. 

5.  IN THE PROCEDURES BEFORE EITHER THE DISTRICT JUDGE OR A UNITED
STATES COMMISSIONER, THE WITNESS MAY CHALLENGE THE SUMMONS ON ANY
APPROPRIATE GROUND, INCLUDING THE DEFENSES THAT THE MATERIAL IS SOUGHT
FOR THE IMPROPER PURPOSE OF OBTAINING EVIDENCE FOR USE IN A CRIMINAL
PROSECUTION AS WELL AS THAT IT IS PROTECTED BY THE ATTORNEY-CLIENT
PRIVILEGE.  P. 449. 

6.  ALSO IN ANY SUCH PROCEDURES, THIRD PARTIES MAY INTERVENE TO
PROTECT THEIR INTERESTS, OR IN THE EVENT THE TAXPAYER IS NOT A PARTY TO
THE SUMMONS BEFORE THE HEARING OFFICER, HE, TOO, MAY INTERVENE.   P.
449. 

7.  ORDERS OF A DISTRICT JUDGE OR UNITED STATES COMMISSIONER IN AN
ATTACHMENT PROCEDURE UNDER SEC. 7604(B) ARE APPEALABLE, AND WITH A STAY
ORDER A WITNESS WOULD SUFFER NO INJURY WHILE TESTING THE SUMMONS.  P.
449. 

8.  THE REMEDY SPECIFIED BY CONGRESS WORKS NO INJUSTICE AND SUFFERS
NO CONSTITUTIONAL INVALIDITY, WHEREFORE THE PARTIES HERE ARE REMITTED
TO THE COMPREHENSIVE PROCEDURE OF THE CODE, WHICH PROVIDES FULL
OPPORTUNITY FOR JUDICIAL REVIEW BEFORE ANY COERCIVE SANCTIONS MAY BE
IMPOSED.  P. 450. 

REISMAN ET AL., DOING BUSINESS AS TRAMMELL, RAND & NATHAN, V. CAPLIN ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, ATTORNEYS FOR TAXPAYERS MARTIN J. AND ALLYN BROMLEY,
SEEK DECLARATORY AND INJUNCTIVE RELIEF AGAINST RESPONDENT CAPLIN, THE
INTERNAL REVENUE COMMISSIONER, AND THE ACCOUNTING FIRM OF PEAT,
MARWICK, MITCHELL & CO., WHICH AT THE INSTANCE OF PETITIONERS HAS BEEN
WORKING ON THE FINANCIAL RECORDS OF THE BROMLEYS.  PETITIONERS CLAIM AS
NULL AND VOID SUMMONSES ISSUED BY THE COMMISSIONER, UNDER SEC. 7602
(FN1) OF THE INTERNAL REVENUE CODE OF 1954, TO PEAT, MARWICK, MITCHELL
& CO., DIRECTING THE PRODUCTION OF "ALL AUDIT REPORTS, WORK PAPERS AND
CORRESPONDENCE" IN THAT FIRM'S CUSTODY PERTAINING TO MR. BROMLEY AND
HIS SEVERAL BUSINESS INTERESTS.  THE CONTENTION IS THAT THE ENFORCED
PRODUCTION OF THE PAPERS IS AN UNLAWFUL APPROPRIATION OF PETITIONERS'
WORK PRODUCT AND TRIAL PREPARATION AS WELL AS AN UNREASONABLE SEIZURE
REQUIRING THE BROMLEYS TO INCRIMINATE THEMSELVES AND DEPRIVING THEM OF
THE EFFECTIVE ASSISTANCE OF COUNSEL.  THE DISTRICT COURT CONCLUDED THAT
PETITIONERS HAD NO STANDING TO SUE; THAT THE COMPLAINT FAILED TO STATE
A CAUSE OF ACTION; THAT NONE OF THE PAPERS WERE THE WORK PRODUCT OF THE
PETITIONERS; AND, THAT THE PAPERS DID NOT FALL WITHIN THE ATTORNEY
CLIENT PRIVILEGE.  THE COURT OF APPEALS AFFIRMED, BUT ON THE ENTIRELY
DIFFERENT THEORY THAT THE SUIT WAS, IN SUBSTANCE, ONE AGAINST THE
UNITED STATES TO WHICH IT HAD NOT CONSENTED.   115 U.S. APP. D.C. 59,
317 F.2D 123.  WE GRANTED CERTIORARI, 374 U.S. 825, AND HAVE CONCLUDED
THAT PETITIONERS HAVE AN ADEQUATE REMEDY AT LAW AND THAT THE COMPLAINT
IS THEREFORE SUBJECT TO DISMISSAL FOR WANT OF EQUITY.  THIS OBVIATES
OUR PASSING UPON ANY OF THE OTHER QUESTIONS PRESENTED. 

                                 I. 

PETITIONER REISMAN, AN ATTORNEY OF CALIFORNIA, HAD FOR SEVERAL YEARS
REPRESENTED THE BROMLEYS.  IN APRIL 1960 HE ASSOCIATED WITH HIMSELF THE
THREE OTHER ATTORNEY PETITIONERS OF WASHINGTON, D.C., AS COUNSEL IN
CONNECTION WITH THE BROMLEYS' TAX MATTERS.  PETITIONERS EMPLOYED THE
ACCOUNTING FIRM OF PEAT, MARWICK, MITCHELL & CO. TO ASSIST THEM IN
CONNECTION WITH CERTAIN CIVIL AND CRIMINAL TAX PROCEEDINGS ARISING FROM
THE ALLEGED TAX LIABILITY OF THE BROMLEYS.  UNDER THE SUPERVISION OF
THE PETITIONERS, THE ACCOUNTANTS ANALYZED VARIOUS ORIGINAL RECORDS OF
MR. BROMLEY AND HIS BUSINESS INTERESTS AND MADE PERIODIC REPORTS
THEREOF.  THE PRODUCTS OF THE JOINT WORK OF THE ACCOUNTANTS TOGETHER
WITH ALL OF THE RECORDS AND PAPERS OF BROMLEY FURNISHED THEM BY THE
PETITIONERS WERE KEPT SEPARATE IN THE ACCOUNTING FIRM'S FILES AND
LABELED AS THE PROPERTY OF PETITIONERS. 

THE SUBPOENAS WERE SERVED ON JUNE 13, 1961, AFTER BROMLEY HAD REFUSED
TO MAKE HIS PAPERS AVAILABLE UPON BEING INFORMED THAT A CRIMINAL
INVESTIGATION AGAINST HIM WAS PENDING.  THE SUBPOENAS WERE DIRECTED TO
THREE SEPARATE BRANCHES OF PEAT, MARWICK, MITCHELL & CO., LOCATED IN
LOS ANGELES, CHICAGO, AND NEW YORK.  THEY REQUIRED THE ACCOUNTANTS TO
TESTIFY BEFORE A SPECIAL AGENT OF THE COMMISSIONER ON THE WORK
PERFORMED AND ALSO TO PRODUCE ALL DOCUMENTS, WORK PAPERS AND OTHER
MATERIAL IN THEIR POSSESSION WITH REGARD TO THE BROMLEY MATTERS.  AT
THE TIME OF SERVICE THERE WERE FOUR CIVIL TAX CASES PENDING IN THE TAX
COURT CONTESTING ALLEGED DEFICIENCIES IN INCOME TAX RETURNS OF THE
BROMLEYS.  (FN2)  IN ADDITION, A CRIMINAL INVESTIGATION OF MR. BROMLEY
ON THE TAX MATTERS WAS IN PROGRESS.  NONE OF THE PARTIES INVOLVED HERE
HAD PREPARED THE TAX RETURNS UNDER SCRUTINY NOR ADVISED THE BROMLEYS
WITH REGARD TO THE SAME. 

ON JULY 7, 1961, PETITIONERS FILED THE COMPLAINT INVOLVED HERE.  THEY
ALLEGED THAT PEAT, MARWICK, MITCHELL & CO. INTENDED TO COMPLY WITH THE
SUBPOENAS.  (FN3)  THIS WOULD RESULT, THEY CLAIMED, IN AN UNLAWFUL
APPROPRIATION OF THEIR WORK PRODUCT AND TRIAL PREPARATION AS WELL AS AN
UNCONSTITUTIONAL SEIZURE OF CONFIDENTIAL AND PRIVILEGED DOCUMENTS FOR
FUTURE USE IN CIVIL AND CRIMINAL LITIGATION AGAINST PETITIONERS'
CLIENTS, THE BROMLEYS.  THEY MOVED FOR AND OBTAINED A TEMPORARY
RESTRAINING ORDER WHICH WAS LATER DISSOLVED WHEN THE COMPLAINT WAS
DISMISSED.  ON APPEAL THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
HELD THAT THE COMPLAINT WAS PROPERLY DISMISSED BECAUSE "IT IS NOT
WITHIN THE COURT'S JURISDICTION BECAUSE IT IS IN SUBSTANCE A SUIT
AGAINST THE UNITED STATES TO WHICH IT HAS NOT CONSENTED."  115 U.S.
APP. D.C. 59, 61, 317 F.2D 123, 125. 

THE CASE REACHES US AT A STAGE WHEN THE ONLY AFFIRMATIVE ACTION TAKEN
BY THE COMMISSIONER IS THE ISSUANCE OF THE SUMMONSES FOR THE
ACCOUNTANTS TO APPEAR BEFORE A HEARING OFFICER, I.E., A SPECIAL AGENT
OF THE INTERNAL REVENUE SERVICE, TO TESTIFY AND PRODUCE RECORDS.  THE
ACCOUNTANTS HAVE NOT YET REFUSED TO DO SO.  IT IS THEREFORE NECESSARY
THAT WE FIRST CONSIDER THE STATUTORY SCHEME WHICH CONGRESS HAS PROVIDED
FOR THE ISSUANCE AND ENFORCEMENT OF THE SUMMONSES. 

                                   II. 

DELEGATE, FOR "THE PURPOSE OF ASCERTAINING THE CORRECTNESS OF ANY
RETURN  ...  , DETERMINING THE LIABILITY OF ANY PERSON FOR ANY INTERNAL
REVENUE TAX  ...  , OR COLLECTING ANY SUCH LIABILITY  ...  TO SUMMON
THE PERSON LIABLE FOR TAX  ...  , OR ANY PERSON HAVING POSSESSION,
CUSTODY, OR CARE OF BOOKS OF ACCOUNT CONTAINING ENTRIES RELATING TO THE
BUSINESS OF THE PERSON LIABLE FOR TAX  ... , OR ANY OTHER PERSON THE
SECRETARY OR HIS DELEGATE MAY DEEM PROPER, TO APPEAR  ...  AND TO
PRODUCE SUCH BOOKS, PAPERS, RECORDS, OR OTHER DATA, AND TO GIVE SUCH
TESTIMONY, UNDER OATH, AS MAY BE RELEVANT OR MATERIAL TO SUCH INQUIRY
... ."  THE PETITIONERS MAKE NO CLAIM THAT THIS PROVISION SUFFERS ANY
CONSTITUTIONAL INFIRMITY ON ITS FACE.  THIS COURT HAS NEVER PASSED UPON
THE RIGHTS OF A PARTY SUMMONED TO APPEAR BEFORE A HEARING OFFICER UNDER
SEC. 7602.  HOWEVER, THE GOVERNMENT CONCEDES THAT A WITNESS OR ANY
INTERESTED PARTY MAY ATTACK THE SUMMONS BEFORE THE HEARING OFFICER. 
THERE ARE CASES AMONG THE CIRCUITS WHICH HOLD THAT BOTH PARTIES
SUMMONED AND THOSE AFFECTED BY A DISCLOSURE MAY APPEAR OR INTERVENE
BEFORE THE DISTRICT COURT AND CHALLENGE THE SUMMONS BY ASSERTING THEIR
CONSTITUTIONAL OR OTHER CLAIMS.  IN RE ALBERT LINDLEY LEE MEMORIAL
HOSPITAL, 209 F.2D 122 (C.A.2D CIR.); FALSONE V. UNITED STATES, 205
F.2D 734 (C.A. 5TH CIR.); AND CORBIN DEPOSIT BANK V. UNITED STATES, 244
F.2D 177 (C.A. 6TH CIR.).  WE AGREE WITH THAT VIEW AND SEE NO REASON
WHY THE SAME RULE WOULD NOT APPLY BEFORE THE HEARING OFFICER.   SHOULD
THE CHALLENGE TO THE SUMMONS BE REJECTED BY THE HEARING EXAMINER AND
THE WITNESS STILL REFUSE TO TESTIFY OR PRODUCE, THE EXAMINER IS GIVEN
NO POWER TO ENFORCE COMPLIANCE OR TO IMPOSE SANCTIONS FOR
NONCOMPLIANCE. 

IF THE SECRETARY OR HIS DELEGATE WISHES TO ENFORCE THE SUMMONS, HE
MUST PROCEED UNDER SEC. 7402(B), WHICH GRANTS THE DISTRICT COURTS OF
THE UNITED STATES JURISDICTION "BY APPROPRIATE PROCESS TO COMPEL SUCH
ATTENDANCE, TESTIMONY, OR PRODUCTION OF BOOKS, PAPERS, OR OTHER DATA. 
(FN4) 

ANY ENFORCEMENT ACTION UNDER THIS SECTION WOULD BE AN ADVERSARY
PROCEEDING AFFORDING A JUDICIAL DETERMINATION OF THE CHALLENGES TO THE
SUMMONS AND GIVING COMPLETE PROTECTION TO THE WITNESS.  IN SUCH A
PROCEEDING ONLY A REFUSAL TO COMPLY WITH AN ORDER OF THE DISTRICT JUDGE
SUBJECTS THE WITNESS TO CONTEMPT PROCEEDINGS. 

                                   III. 

IT IS URGED THAT THE PENALTIES OF CONTEMPT RISKED BY A REFUSAL TO
COMPLY WITH THE SUMMONSES ARE SO SEVERE THAT THE STATUTORY PROCEDURE
AMOUNTS TO A DENIAL OF JUDICIAL REVIEW.  THE LEADING CASES ON THIS
QUESTION ARE EX PARTE YOUNG, 209 U.S. 123 (1908), AND OKLAHOMA
OPERATING CO. V. LOVE, 252 U.S. 331 (1920).  HOWEVER, WE DO NOT BELIEVE
THAT THIS POINT IS WELL TAKEN HERE.  IN YOUNG CERTAIN RAILROAD RATES
COULD BE TESTED ONLY BY A FAILURE TO COMPLY, WHICH OCCASIONED A RISK OF
BOTH IMPRISONMENT AND LARGE FINES, REGARDLESS OF THE WILLFULNESS OF THE
REFUSAL TO COMPLY.  AND IN OKLAHOMA OPERATING CO. THE LAUNDRY RATE
FIXED BY THE OKLAHOMA CORPORATION COMMISSION COULD BE TESTED ONLY BY
CONTEMPT WITH A PENALTY OF $500 PER DAY, EACH DAY BEING A SEPARATE
VIOLATION. 

ON THE OTHER HAND, IN TAX ENFORCEMENT PROCEEDINGS THE HEARING OFFICER
HAS NO POWER OF ENFORCEMENT OR RIGHT TO LEVY ANY SANCTIONS.  IT IS TRUE
THAT ANY PERSON SUMMONED WHO "NEGLECTS TO APPEAR OR TO PRODUCE" MAY BE
PROSECUTED UNDER SEC. 7210 (FN5) AND IS SUBJECT TO A FINE NOT EXCEEDING
$1,000, OR IMPRISONMENT FOR NOT MORE THAN A YEAR, OR BOTH.  HOWEVER,
THIS STATUTE ON ITS FACE DOES NOT APPLY WHERE THE WITNESS APPEARS AND
INTERPOSES GOOD FAITH CHALLENGES TO THE SUMMONS.  IT ONLY PRESCRIBES
PUNISHMENT WHERE THE WITNESS "NEGLECTS" EITHER TO APPEAR OR TO
PRODUCE.  WE NEED NOT PASS UPON THE COVERAGE OF THIS PROVISION IN LIGHT
OF THE FACTS HERE.  IT IS SUFFICIENT TO SAY THAT NONCOMPLIANCE IS NOT
SUBJECT TO PROSECUTION THEREUNDER WHEN THE SUMMONS IS ATTACKED IN GOOD
FAITH.  (FN6) 

PETITIONERS ALSO POINT TO SEC. 7604(B) (FN7) AS POSING THE RISK OF
ARREST SHOULD THE COMMISSIONER PROCEED UNDER THAT SECTION FOR AN
"ATTACHMENT  ...  AS FOR A CONTEMPT."  ARGUABLY, SUCH A SANCTION, EVEN
THOUGH TEMPORARY, MIGHT BE A PENALTY SEVERE ENOUGH TO BRING THE SECTION
WITHIN THE RATIONALE OF YOUNG, SUPRA, BUT WE DO NOT SO READ SEC.
7604(B).  THIS SECTION PROVIDES THAT WHERE "ANY PERSON SUMMONED  ...
NEGLECTS OR REFUSES TO OBEY SUCH SUMMONS" THE COMMISSIONER MAY PROCEED
BEFORE THE UNITED STATES COMMISSIONER OR THE JUDGE OF THE DISTRICT
COURT "FOR AN ATTACHMENT AGAINST HIM AS FOR A CONTEMPT."  UPON A
SHOWING OF "SATISFACTORY PROOF," AN ATTACHMENT FOR THE PERSON SO
REFUSING IS ISSUED AND HE IS BROUGHT BEFORE THE UNITED STATES
COMMISSIONER OR THE DISTRICT JUDGE WHO PROCEEDS "TO A HEARING OF THE
CASE."  UPON THE HEARING THE UNITED STATES COMMISSIONER OR THE DISTRICT
JUDGE MAY "MAKE SUCH ORDER AS HE SHALL DEEM PROPER, NOT INCONSISTENT
WITH THE LAW FOR THE PUNISHMENT OF CONTEMPTS  ...  ."  THE PREDECESSOR
OF SEC. 7604(B) WAS ADOPTED BY THE CONGRESS IN 1864 (13 STAT. 226) AT A
TIME WHEN CONGRESS WAS GREATLY CONCERNED WITH TAX COLLECTION DELAY. 
CONG. GLOBE, 38TH CONG., 1ST SESS. 2440-2441 (1864).  THE PROPONENTS OF
THE BILL EMPHASIZED THAT AFTER ARREST THE WITNESS COULD ASSERT HIS
OBJECTIONS TO THE SUMMONS.  CONG. GLOBE, 38TH CONG., 1ST SESS. 2997
(1864).   IT APPEARS TO US THAT THE PROVISION WAS INTENDED ONLY TO
COVER PERSONS WHO WERE SUMMONED AND WHOLLY MADE DEFAULT OR
CONTUMACIOUSLY REFUSED TO COMPLY.  SECTION 7402(B) CAME INTO THE
STATUTE IN 1913 (38 STAT. 179) AND HAS BEEN UNIFORMLY USED SINCE THAT
TIME.  (FN8)  AS WE READ THE LEGISLATIVE HISTORY, SEC. 7604(B) REMAINS
IN THIS COMPREHENSIVE PROCEDURE PROVIDED BY CONGRESS TO COVER ONLY A
DEFAULT OR CONTUMACIOUS REFUSAL TO HONOR A SUMMONS BEFORE A HEARING
OFFICER.  BUT EVEN IN SUCH CASES, JUST AS IN A CRIMINAL PROSECUTION
UNDER SEC. 7210, THE WITNESS MAY ASSERT HIS OBJECTIONS AT THE HEARING
BEFORE THE COURT WHICH IS AUTHORIZED TO MAKE SUCH ORDER AS IT "SHALL
DEEM PROPER."  SEC. 7604(B). 

FURTHERMORE, WE HOLD THAT IN ANY OF THESE PROCEDURES BEFORE EITHER
THE DISTRICT JUDGE OR UNITED STATES COMMISSIONER, THE WITNESS MAY
CHALLENGE THE SUMMONS ON ANY APPROPRIATE GROUND.  THIS WOULD INCLUDE,
AS THE CIRCUITS HAVE HELD, THE DEFENSES THAT THE MATERIAL IS SOUGHT FOR
THE IMPROPER PURPOSE OF OBTAINING EVIDENCE FOR USE IN A CRIMINAL
PROSECUTION, BOREN V. TUCKER, 239 F.2D 767, 772-773, AS WELL AS THAT IT
IS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, SALE V. UNITED STATES,
228 F.2D 682.  IN ADDITION, THIRD PARTIES MIGHT INTERVENE TO PROTECT
THEIR INTERESTS, OR IN THE EVENT THE TAXPAYER IS NOT A PARTY TO THE
SUMMONS BEFORE THE HEARING OFFICER, HE, TOO, MAY INTERVENE.   SEE IN RE
ALBERT LINDLEY LEE MEMORIAL HOSPITAL, SUPRA, AND CORBIN DEPOSIT BANK V.
UNITED STATES, SUPRA.  AND THIS WOULD BE TRUE WHETHER THE CONTEMPT BE
OF A CIVIL OR CRIMINAL NATURE.  CF. MCCRONE V. UNITED STATES, 307 U.S.
61 (1939); BRODY V. UNITED STATES, 243 F.2D 378.  FINALLY, WE HOLD THAT
SUCH ORDERS ARE APPEALABLE.  SEE O'CONNOR V. O'CONNELL, 253 F.2D 365
(C.A. 1ST CIR.); IN RE ALBERT LINDLEY LEE MEMORIAL HOSPITAL, SUPRA;
FALSONE V. UNITED STATES, SUPRA; BOUSCHOR V. UNITED STATES, 316 F.2D
451 (C.A. 8TH CIR.); MARTIN V. CHANDIS SECURITIES CO., 128 F.2D 731 (CA
9TH CIR.); D.I. OPERATING CO. V. UNITED STATES, 321 F.2D 586 (C.A. 9TH
CIR.).  CONTRA, APPLICATION OF DAVIS, 303 F.2D 601 (C.A. 7TH CIR.).  IT
FOLLOWS THAT WITH A STAY ORDER A WITNESS WOULD SUFFER NO INJURY WHILE
TESTING THE SUMMONS. 

NOR WOULD THERE BE A DIFFERENCE SHOULD THE WITNESS INDICATE - AS HAS
PEAT, MARWICK, MITCHELL & CO. - THAT HE WOULD VOLUNTARILY TURN THE
PAPERS OVER TO THE COMMISSIONER.  IF THIS BE TRUE, EITHER THE TAXPAYER
OR ANY AFFECTED PARTY MIGHT RESTRAIN COMPLIANCE, AS THE COMMISSIONER
SUGGESTS, UNTIL COMPLIANCE IS ORDERED BY A COURT OF COMPETENT
JURISDICTION.  THIS RELIEF WAS NOT SOUGHT HERE.  HAD IT BEEN, THE
COMMISSIONER WOULD HAVE HAD TO PROCEED FOR COMPLIANCE, IN WHICH EVENT
THE PETITIONERS OR THE BROMLEYS MIGHT HAVE INTERVENED AND ASSERTED
THEIR CLAIMS.   FINDING THAT THE REMEDY SPECIFIED BY CONGRESS WORKS NO
INJUSTICE AND SUFFERS NO CONSTITUTIONAL INVALIDITY, WE REMIT THE
PARTIES TO THE COMPREHENSIVE PROCEDURE OF THE CODE, WHICH PROVIDES FULL
OPPORTUNITY FOR JUDICIAL REVIEW BEFORE ANY COERCIVE SANCTIONS MAY BE
IMPOSED.  CF.  UNITED STATES V. BABCOCK, 250 U.S. 328, 331 (1919). 
AFFIRMED. 

FN1  "SEC.  7602.  EXAMINATION OF BOOKS AND WITNESSES. 

"FOR THE PURPOSE OF ASCERTAINING THE CORRECTNESS OF ANY RETURN,
MAKING A RETURN WHERE NONE HAS BEEN MADE, DETERMINING THE LIABILITY OF
ANY PERSON FOR ANY INTERNAL REVENUE TAX OR THE LIABILITY AT LAW OR IN
EQUITY OF ANY TRANSFEREE OR FIDUCIARY OF ANY PERSON IN RESPECT OF ANY
INTERNAL REVENUE TAX, OR COLLECTING ANY SUCH LIABILITY, THE SECRETARY
OR HIS DELEGATE IS AUTHORIZED: 

"(1)  TO EXAMINE ANY BOOKS, PAPERS, RECORDS, OR OTHER DATA WHICH MAY
BE RELEVANT OR MATERIAL TO SUCH INQUIRY: 

"(2)  TO SUMMON THE PERSON LIABLE FOR TAX OR REQUIRED TO PERFORM THE
ACT, OR ANY OFFICER OR EMPLOYEE OF SUCH PERSON, OR ANY PERSON HAVING
POSSESSION, CUSTODY, OR CARE OF BOOKS OF ACCOUNT CONTAINING ENTRIES
RELATING TO THE BUSINESS OF THE PERSON LIABLE FOR TAX OR REQUIRED TO
PERFORM THE ACT, OR ANY OTHER PERSON THE SECRETARY OR HIS DELEGATE MAY
DEEM PROPER, TO APPEAR BEFORE THE SECRETARY OR HIS DELEGATE AT A TIME
AND PLACE NAMED IN THE SUMMONS AND TO PRODUCE SUCH BOOKS, PAPERS,
RECORDS, OR OTHER DATA, AND TO GIVE SUCH TESTIMONY, UNDER OATH, AS MAY
BE RELEVANT OR MATERIAL TO SUCH INQUIRY; AND: 

"(3)  TO TAKE SUCH TESTIMONY OF THE PERSON CONCERNED, UNDER OATH, AS
MAY BE RELEVANT OR MATERIAL TO SUCH INQUIRY." 

FN2  THESE HAVE BEEN HEARD AND ARE NOW UNDER ADVISEMENT IN THE TAX
COURT. 

FN3  IN THEIR ANSWER PEAT, MARWICK, MITCHELL & CO. ADMITTED THE
ESSENTIAL ALLEGATIONS IN THE COMPLAINT, EXCEPT THE ONE ALLEGING THAT
THEY WOULD VOLUNTARILY COMPLY WITH THE SUBPOENAS.  AS TO THIS THEY SAID
COMPLIANCE "COULD COMPROMISE TRIAL PREPARATIONS" IN THE TAX COURT
CASES.  THEY JOINED THE PRAYER OF PETITIONERS FOR RELIEF. 

FN4  SECTION 7604(A) AND (B) GIVES AN ADDITIONAL REMEDY WHICH IS
CONSIDERED HEREAFTER. 

FN5  INTERNAL REVENUE CODE OF 1954, SEC. 7210:  "ANY PERSON WHO,
BEING DULY SUMMONED TO APPEAR TO TESTIFY, OR TO APPEAR AND PRODUCE
BOOKS, ACCOUNTS, RECORDS, MEMORANDA, OR OTHER PAPERS, AS REQUIRED UNDER
APPEAR OR TO PRODUCE SUCH BOOKS, ACCOUNTS, RECORDS, MEMORANDA, OR OTHER
PAPERS, SHALL, UPON CONVICTION THEREOF, BE FINED NOT MORE THAN $1,000,
OR IMPRISONED NOT MORE THAN 1 YEAR, OR BOTH, TOGETHER WITH COSTS OF
PROSECUTION." 

FN6  THE ONLY PROSECUTION UNDER SEC. 7210 IS UNITED STATES V. BECKER,
259 F.2D 869.  THERE THE WORD "NEGLECT" WAS EQUATED WITH WILLFULNESS. 
THE GOVERNMENT ADMITS THAT THE SECTION IS INAPPLICABLE TO PERSONS WHO
APPEAR AND IN GOOD FAITH INTERPOSE DEFENSES AS A BASIS FOR
NONCOMPLIANCE.  BRIEF FOR THE RESPONDENT CAPLIN, PP. 9, 22.  CF.
FEDERAL POWER COMM'N V. METROPOLITAN EDISON CO., 304 U.S. 375, 387
(1938). 

FN7  INTERNAL REVENUE CODE OF 1954, SEC. 7604(B):  "ENFORCEMENT.  -
WHENEVER ANY PERSON SUMMONED UNDER SECTION 6420(E)(2), 6421(F)(2), OR
7602 NEGLECTS OR REFUSES TO OBEY SUCH SUMMONS, OR TO PRODUCE BOOKS,
PAPERS, RECORDS, OR OTHER DATA, OR TO GIVE TESTIMONY, AS REQUIRED, THE
SECRETARY OR HIS DELEGATE MAY APPLY TO THE JUDGE OF THE DISTRICT COURT
OR TO A UNITED STATES COMMISSIONER FOR THE DISTRICT WITHIN WHICH THE
PERSON SO SUMMONED RESIDES OR IS FOUND FOR AN ATTACHMENT AGAINST HIM AS
FOR A CONTEMPT.  IT SHALL BE THE DUTY OF THE JUDGE OR COMMISSIONER TO
HEAR THE APPLICATION, AND, IF SATISFACTORY PROOF IS MADE, TO ISSUE AN
ATTACHMENT, DIRECTED TO SOME PROPER OFFICER, FOR THE ARREST OF SUCH
PERSON, AND UPON HIS BEING BROUGHT BEFORE HIM TO PROCEED TO A HEARING
OF THE CASE; AND UPON SUCH HEARING THE JUDGE OR THE UNITED STATES
COMMISSIONER SHALL HAVE POWER TO MAKE SUCH ORDER AS HE SHALL DEEM
PROPER, NOT INCONSISTENT WITH THE LAW FOR THE PUNISHMENT OF CONTEMPTS,
TO ENFORCE OBEDIENCE TO THE REQUIREMENTS OF THE SUMMONS AND TO PUNISH
SUCH PERSON FOR HIS DEFAULT OR DISOBEDIENCE." 

FN8  IT IS TRUE THAT THE ATTACHMENT PROCEDURE OF SEC. 7604(B) HAS
BEEN OCCASIONALLY USED EVEN WHERE THE PERSON SUMMONED REFUSED TO
TESTIFY BECAUSE OF A CLAIMED PRIVILEGE.  E.G., SALE V. UNITED STATES,
228 F.2D 682, AND BROWNSON V. UNITED STATES, 32 F.2D 844.  WE BELIEVE
THAT THE USE OF SEC. 7604(B) IN THAT CONTEXT IS INAPPROPRIATE. 
ATTACHMENT OF A WITNESS WHO HAS NEITHER DEFAULTED NOR CONTUMACIOUSLY
REFUSED TO COMPLY WOULD RAISE CONSTITUTIONAL CONSIDERATIONS, WHICH NEED
NOT BE CONSIDERED AT THIS TIME UNDER OUR READING OF THE STATUTE. 
..END :












LANZA V. NEW JERSEY 375 U.S. 451 


NO. 560.  DECIDED JANUARY 20, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  39 N.J. 595, 190 A.2D 374. 


LANZA ET AL V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ARONOFF V. FRANCHISE TAX BOARD OF CALIFORNIA 375 U.S. 451 


NO. 639.  DECIDED JANUARY 20, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  60 CAL. 2D 177, 383
P.2D 409. 


ARONOFF ET AL. V. FRANCHISE TAX BOARD OF CALIFORNIA ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















ARROW CARRIER CORP. V. UNITED STATES 375 U.S. 452 


NO. 467.  DECIDED JANUARY 20, 1964.  - 219 F. SUPP. 43, AFFIRMED. 


ARROW CARRIER CORP. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE MOTION OF PENNSYLVANIA PUBLIC UTILITY COMMISSION TO BE ADDED AS A
PARTY APPELLEE IS GRANTED.  THE MOTION TO CORRECT THE CAPTION TO
INCLUDE THE PENNSYLVANIA RAILROAD COMPANY, HIGHWAY EXPRESS LINES, INC.,
AND MODERN TRANSFER CO., INC., AS PARTIES APPELLEE IS GRANTED.  THE
MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :














ANDERSON V. MARTIN 375 U.S. 399 


NO. 51.  ARGUED NOVEMBER 20-21, 1963.  - DECIDED JANUARY 13, 1964.  -
206 F. SUPP. 700, REVERSED. 


APPELLANTS, RESIDENTS OF A LOUISIANA PARISH, ARE NEGROES.  BOTH SOUGHT
ELECTION TO THE PARISH SCHOOL BOARD IN THE 1962 DEMOCRATIC PARTY
PRIMARY ELECTION.  PRIOR TO THE ELECTION THEY FILED THIS SUIT IN
FEDERAL COURT TO ENJOIN THE ENFORCEMENT OF LOUISIANA REVISED STATUTES
SEC. 18:1174.1, WHICH REQUIRES THAT IN ALL PRIMARY, GENERAL OR SPECIAL
ELECTIONS, THE NOMINATION PAPERS AND BALLOTS SHALL DESIGNATE THE RACE
OF THE CANDIDATES.  A THREE-JUDGE DISTRICT COURT UPHELD THE
CONSTITUTIONALITY OF THE STATUTE.  HELD:  THE COMPULSORY DESIGNATION BY
LOUISIANA OF THE RACE OF THE CANDIDATE ON THE BALLOT OPERATES AS A
DISCRIMINATION AGAINST APPELLANTS AND IS VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION.  PP. 402-404. 

(A)  THE VICE OF THE STATUTE LIES IN THE PLACING OF THE POWER OF THE
STATE BEHIND A RACIAL CLASSIFICATION THAT INDUCES RACIAL PREJUDICE AT
THE POLLS.  P. 402. 

(B)  THE CHALLENGED PROVISION OF THE STATUTE CANNOT BE DEEMED TO BE
REASONABLY DESIGNED TO MEET LEGITIMATE GOVERNMENTAL INTERESTS IN
INFORMING THE ELECTORATE AS TO CANDIDATES.  P. 403. 

(C)  THE CONTENTION THAT THE STATUTE IS NONDISCRIMINATORY BECAUSE THE
LABELING PROVISION APPLIES EQUALLY TO NEGRO AND WHITE CANNOT BE
SUSTAINED.  PP. 403-404. 

ANDERSON ET AL. V. MARTIN. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

LOUISIANA REVISED STATUTES SEC. 18:1174.1 PROVIDES THAT IN ALL
PRIMARY, GENERAL OR SPECIAL ELECTIONS, THE NOMINATION PAPERS AND
BALLOTS SHALL DESIGNATE THE RACE OF CANDIDATES FOR ELECTIVE OFFICE. 
(FN1)  THE QUESTION INVOLVED IN THIS APPEAL IS WHETHER THIS REQUIREMENT
VIOLATES THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH
AMENDMENT OR THE FIFTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES.  A THREE-JUDGE UNITED STATES DISTRICT COURT, CONVENED UNDER 28
U.S.C. SEC. 2284, UPHELD THE CONSTITUTIONALITY OF THE STATUTE BY A 2-TO
1 VOTE, 206 F. SUPP. 700.  ON DIRECT APPEAL, 28 U.S.C. SEC. 1253, WE
NOTED PROBABLE JURISDICTION, 372 U.S. 904. 

I. 

APPELLANTS, RESIDENTS OF EAST BATON ROUGE, LOUISIANA, ARE NEGROES. 
EACH SOUGHT ELECTION TO THE SCHOOL BOARD OF THAT PARISH IN THE 1962
DEMOCRATIC PARTY PRIMARY ELECTION.  PRIOR TO THE ELECTION THEY FILED
THIS SUIT AGAINST THE SECRETARY OF STATE OF LOUISIANA SEEKING TO ENJOIN
THE ENFORCEMENT OF ACT 538 OF THE 1960 LOUISIANA LEGISLATURE, SEC.
1174.1 OF TITLE 18 OF THE LOUISIANA REVISED STATUTES, WHICH REQUIRES
THE SECRETARY TO PRINT, IN PARENTHESES, THE RACE OF EACH CANDIDATE
OPPOSITE HIS NAME ON ALL BALLOTS.  ASSERTING THAT THE STATUTE VIOLATED,
INTER ALIA, THE FOURTEENTH AND FIFTEENTH AMENDMENTS, APPELLANTS SOUGHT
BOTH PRELIMINARY AND PERMANENT INJUNCTIONS AND A TEMPORARY RESTRAINING
ORDER.  A UNITED STATES DISTRICT JUDGE DENIED THE MOTION FOR A
TEMPORARY RESTRAINING ORDER AND A THREE-JUDGE COURT WAS CONVENED. 
AFTER A HEARING ON THE MERITS, THE PRELIMINARY INJUNCTION WAS DENIED
WITH ONE JUDGE DISSENTING.  THEREAFTER THE APPELLANTS SOUGHT TO AMEND
THEIR COMPLAINT SO AS TO SHOW THAT THE PRIMARY ELECTION HAD BEEN HELD
AND THAT BOTH APPELLANTS HAD BEEN DEFEATED (FN2) BECAUSE OF THE
OPERATION AND ENFORCEMENT OF THE STATUTE HERE UNDER ATTACK.  THEY
FURTHER ALLEGED TAHT THEY "INTEND TO BE CANDIDATES IN THE NEXT DULY
CONSTITUTED DEMOCRATIC PRIMARY ELECTION FOR NOMINATION AS MEMBERS OF
THE EAST BATON ROUGE PARISH SCHOOL BOARD  ...  ."  LEAVE TO AMEND WAS
DENIED BY THE DISTRICT JUDGE AND THE THREE-JUDGE COURT THEREAFTER
DENIED THE REQUEST FOR A PERMANENT INJUNCTION.  WE HAVE CONCLUDED THAT
THE COMPULSORY DESIGNATION BY LOUISIANA OF THE RACE OF THE CANDIDATE ON
THE BALLOT OPERATES AS A DISCRIMINATION AGAINST APPELLANTS AND IS
THEREFORE VIOLATIVE OF THE FOURTEENTH AMENDMENT'S EQUAL PROTECTION
CLAUSE.  (FN3)  IN VIEW OF THIS WE DO NOT REACH APPELLANTS' OTHER
CONTENTIONS. 

            II. 

AT THE OUTSET IT IS WELL THAT WE POINT OUT WHAT THIS CASE DOES NOT
INVOLVE.  IT HAS NOTHING WHATEVER TO DO WITH THE RIGHT OF A CITIZEN TO
CAST HIS VOTE FOR WHOMEVER HE CHOOSES AND FOR WHATEVER REASON HE
PLEASES OR TO RECEIVE ALL INFORMATION CONCERNING A CANDIDATE WHICH IS
NECESSARY TO A PROPER EXERCISE OF HIS FRANCHISE.  IT HAS TO DO ONLY
WITH THE RIGHT OF A STATE TO REQUIRE OR ENCOURAGE ITS VOTERS TO
DISCRIMINATE UPON THE GROUNDS OF RACE.  IN THE ABSTRACT, LOUISIANA
IMPOSES NO RESTRICTION UPON ANYONE'S CANDIDACY NOR UPON AN ELECTOR'S
CHOICE IN THE CASTING OF HIS BALLOT.  BUT BY PLACING A RACIAL LABEL ON
A CANDIDATE AT THE MOST CRUCIAL STAGE IN THE ELECTORAL PROCESS - THE
INSTANT BEFORE THE VOTE IS CAST - THE STATE FURNISHES A VEHICLE BY
WHICH RACIAL PREJUDICE MAY BE SO AROUSED AS TO OPERATE AGAINST ONE
GROUP BECAUSE OF RACE AND FOR ANOTHER.  THIS IS TRUE BECAUSE BY
DIRECTING THE CITIZEN'S ATTENTION TO THE SINGLE CONSIDERATION OF RACE
OR COLOR, THE STATE INDICATES THAT A CANDIDATE'S RACE OR COLOR IS AN
IMPORTANT - PERHAPS PARAMOUNT - CONSIDERATION IN THE CITIZEN'S CHOICE,
WHICH MAY DECISIVELY INFLUENCE THE CITIZEN TO CAST HIS BALLOT ALONG
RACIAL LINES.  HENCE IN A STATE OR VOTING DISTRICT WHERE NEGROES
PREDOMINATE, THAT RACE IS LIKELY TO BE FAVORED BY A RACIAL DESIGNATION
ON THE BALLOT, WHILE IN THOSE COMMUNITIES WHERE OTHER RACES ARE IN THE
MAJORITY, THEY MAY BE PREFERRED.  THE VICE LIES NOT IN THE RESULTING
INJURY BUT IN THE PLACING OF THE POWER OF THE STATE BEHIND A RACIAL
CLASSIFICATION THAT INDUCES RACIAL PREJUDICE AT THE POLLS. 

                                   III. 

AS WE SAID IN NAACP V. ALABAMA, 357 U.S. 449, 463 (1958):  "THE
CRUCIAL FACTOR IS THE INTERPLAY OF GOVERNMENTAL AND PRIVATE ACTION  ...
."  HERE THE STATUTE UNDER ATTACK PRESCRIBES THE FORM AND CONTENT OF
THE OFFICIAL BALLOT USED IN ALL ELECTIONS IN LOUISIANA.  THE
REQUIREMENT THAT "EVERY APPLICATION FOR OR NOTIFICATION OR DECLARATION
OF CANDIDACY, AND EVERY CERTIFICATE OF NOMINATION AND EVERY NOMINATION
PAPER FILED  ...  SHALL SHOW FOR EACH CANDIDATE NAMED THEREIN, WHETHER
SUCH CANDIDATE IS OF THE CAUCASIAN RACE, THE NEGRO RACE OR OTHER
SPECIFIED RACE" WAS NOT PLACED IN THE STATUTE UNTIL 1960.  PRIOR TO
THAT TIME THE PRIMARY ELECTION BALLOT CONTAINED NO INFORMATION ON THE
CANDIDATES OTHER THAN THEIR NAMES; NOR DID THE GENERAL ELECTION BALLOT,
WHICH ONLY GROUPED THE NAMED CANDIDATES ACCORDING TO THEIR RESPECTIVE
POLITICAL PARTY.  THE 1960 AMENDMENT ADDED "RACE" AS THE SINGLE ITEM OF
INFORMATION OTHER THAN THE NAME OF THE CANDIDATE.  THIS ADDITION TO THE
STATUTE IN THE LIGHT OF "PRIVATE ATTITUDES AND PRESSURES" TOWARDS
NEGROES AT THE TIME OF ITS ENACTMENT (FN4) COULD ONLY RESULT IN THAT
"REPRESSIVE EFFECT" WHICH "WAS BROUGHT TO BEAR ONLY AFTER THE EXERCISE
OF GOVERNMENTAL POWER."  BATES V. LITTLE ROCK, 361 U.S. 516, 524
(1960). 

NOR CAN THE ATTACKED PROVISION BE DEEMED TO BE REASONABLY DESIGNED TO
MEET LEGITIMATE GOVERNMENTAL INTERESTS IN INFORMING THE ELECTORATE AS
TO CANDIDATES.  WE SEE NO RELEVANCE IN THE STATE'S POINTING UP THE RACE
OF THE CANDIDATE AS BEARING UPON HIS QUALIFICATIONS FOR OFFICE. 
INDEED, THIS FACTOR IN ITSELF "UNDERSCORES THE PURELY RACIAL CHARACTER
AND PURPOSE" OF THE STATUTE.  GOSS V. BOARD OF EDUCATION, 373 U.S. 683,
688 (1963). 

THE STATE CONTENDS THAT ITS ACT IS NONDISCRIMINATORY BECAUSE THE
LABELING PROVISION APPLIES EQUALLY TO NEGRO AND WHITE.  OBVIOUSLY,
LOUISIANA MAY NOT BAR NEGRO CITIZENS FROM OFFERING THEMSELVES AS
CANDIDATES FOR PUBLIC OFFICE, NOR CAN IT ENCOURAGE ITS CITIZENS TO VOTE
FOR A CANDIDATE SOLELY ON ACCOUNT OF RACE.  CF. STEELE V. LOUISVILLE &
N.R. CO., 323 U.S. 192, 203 (1944).   AND THAT WHICH CANNOT BE DONE BY
EXPRESS STATUTORY PROHIBITION CANNOT BE DONE BY INDIRECTION. 
THEREFORE, WE VIEW THE ALLEGED EQUALITY AS SUPERFICIAL.  RACE IS THE
FACTOR UPON WHICH THE STATUTE OPERATES AND ITS INVOLVEMENT PROMOTES THE
ULTIMATE DISCRIMINATION WHICH IS SUFFICIENT TO MAKE IT INVALID.  GOSS
V. BOARD OF EDUCATION, SUPRA, AT 688.  THE JUDGMENT IS THEREFORE
REVERSED. 

FN1  LA. REV. STAT. (1960 SUPP.) SEC. 18:1174.1: 

"DESIGNATION OF RACE OF CANDIDATES ON PAPER AND BALLOTS: 

"A.  EVERY APPLICATION FOR OR NOTIFICATION OR DECLARATION OF
CANDIDACY, AND EVERY CERTIFICATE OF NOMINATION AND EVERY NOMINATION
PAPER FILED IN ANY STATE OR LOCAL PRIMARY, GENERAL OR SPECIAL ELECTION
FOR ANY ELECTIVE OFFICE IN THIS STATE SHALL SHOW FOR EACH CANDIDATE
NAMED THEREIN, WHETHER SUCH CANDIDATE IS OF THE CAUCASIAN RACE, THE
NEGRO RACE OR OTHER SPECIFIED RACE. 

"B.  CHAIRMEN OF PARTY COMMITTEES, PARTY EXECUTIVE COMMITTEES,
PRESIDENTS OF BOARDS OF SUPERVISORS OF ELECTION OR ANY PERSON OR
PERSONS REQUIRED BY LAW TO CERTIFY TO THE SECRETARY OF STATE THE NAMES
OF CANDIDATES TO BE PLACED ON THE BALLOTS SHALL CAUSE TO BE SHOWN IN
SUCH CERTIFICATION WHETHER EACH CANDIDATE NAMED THEREIN IS OF THE
CAUCASIAN RACE, NEGRO RACE OR OTHER SPECIFIED RACE, WHICH INFORMATION
SHALL BE OBTAINED FROM THE APPLICATIONS FOR OR NOTIFICATIONS OR
DECLARATIONS OF CANDIDACY OR FROM THE CERTIFICATES OF NOMINATION OR
NOMINATION PAPERS, AS THE CASE MAY BE. 

"C.  ON THE BALLOTS TO BE USED IN ANY STATE OR LOCAL PRIMARY, GENERAL
OR SPECIAL ELECTION THE SECRETARY OF STATE SHALL CAUSE TO BE PRINTED
WITHIN PARENTHESES () BESIDE THE NAME OF EACH CANDIDATE, THE RACE OF
THE CANDIDATE, WHETHER CAUCASIAN, NEGRO, OR OTHER SPECIFIED RACE, WHICH
INFORMATION SHALL BE OBTAINED FROM THE DOCUMENTS DESCRIBED IN SUB
SHALL BE IN PRINT OF THE SAME SIZE AS THE PRINT IN THE NAMES OF THE
CANDIDATES ON THE BALLOTS." 

FN2  ANDERSON WAS DEFEATED IN THE PRIMARY AND BELTON IN A SUBSEQUENT
RUN-OFF. 

FN3  "NO STATE SHALL  ...  DENY TO ANY PERSON WITHIN ITS JURISDICTION
THE EQUAL PROTECTION OF THE LAWS."  U.S. CONST., AMEND. XIV, SEC. 1. 

FN4  SEE WOLLETT, RACE RELATIONS, 21 LA. L. REV. 85 (1960). 
..END :





















NATIONAL LABOR RELATIONS BOARD V. EXCHANGE PARTS CO. 375 U.S. 405 


NO. 26.  ARGUED DECEMBER 11, 1963.  - DECIDED JANUARY 13, 1964.  - 304
F.2D 368, REVERSED. 


IT WAS A VIOLATION OF SEC. 8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT
FOR AN EMPLOYER, SHORTLY BEFORE A REPRESENTATION ELECTION, TO CONFER
ECONOMIC BENEFITS ON ITS EMPLOYEES FOR THE PURPOSE OF INDUCING THEM TO
VOTE AGAINST THE UNION.  PP. 408-409. 

(A)  SECTION 8(A)(1), WHICH MAKES IT AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER TO "INTERFERE WITH" THE PROTECTED RIGHT OF EMPLOYEES TO
ORGANIZE, PROHIBITS NOT ONLY INTRUSIVE THREATS AND PROMISES BUT ALSO
CONDUCT IMMEDIATELY FAVORABLE TO EMPLOYEES WHICH IS UNDERTAKEN WITH THE
EXPRESS PURPOSE OF IMPINGING UPON THEIR FREEDOM OF CHOICE FOR OR
AGAINST UNIONIZATION AND IS REASONABLY CALCULATED TO HAVE THAT EFFECT. 
P. 409. 

(B)  THE ABSENCE OF CONDITIONS OR THREATS PERTAINING TO THE
PARTICULAR BENEFITS CONFERRED WOULD BE OF CONTROLLING SIGNIFICANCE ONLY
IF IT COULD BE PRESUMED THAT NO QUESTION OF ADDITIONAL BENEFITS OR
RENEGOTIATION OF EXISTING BENEFITS WOULD ARISE IN THE FUTURE; AND NO
SUCH PRESUMPTION IS TENABLE.  P. 410. 

NATIONAL LABOR RELATIONS BOARD V. EXCHANGE PARTS CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A QUESTION CONCERNING THE LIMITATIONS WHICH SEC.
8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 452 (1935), AS
AMENDED, 29 U.S.C. SEC. 158(A)(1), PLACES ON THE RIGHT OF AN EMPLOYER
TO CONFER ECONOMIC BENEFITS ON HIS EMPLOYEES SHORTLY BEFORE A
REPRESENTATION ELECTION.  THE PRECISE ISSUE IS WHETHER THAT SECTION
PROHIBITS THE CONFERRAL OF SUCH BENEFITS, WITHOUT MORE, WHERE THE
EMPLOYER'S PURPOSE IS TO AFFECT THE OUTCOME OF THE ELECTION.  WE
GRANTED THE NATIONAL LABOR RELATIONS BOARD'S PETITION FOR CERTIORARI,
373 U.S. 931, TO CLEAR UP A POSSIBLE CONFLICT BETWEEN THE DECISION
BELOW AND THOSE OF OTHER COURTS OF APPEALS (FN1) ON AN IMPORTANT
QUESTION OF NATIONAL LABOR POLICY.  FOR REASONS GIVEN IN THIS OPINION,
WE CONCLUDE THAT THE JUDGMENT BELOW MUST BE REVERSED. 

THE RESPONDENT, EXCHANGE PARTS COMPANY, IS ENGAGED IN THE BUSINESS OF
REBUILDING AUTOMOBILE PARTS IN FORT WORTH, TEXAS.  PRIOR TO NOVEMBER
1959 ITS EMPLOYEES WERE NOT REPRESENTED BY A UNION.  ON NOVEMBER 9,
1959, THE INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS,
BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO, ADVISED EXCHANGE PARTS THAT
THE UNION WAS CONDUCTING AN ORGANIZATIONAL CAMPAIGN AT THE PLANT AND
THAT A MAJORITY OF THE EMPLOYEES HAD DESIGNATED THE UNION AS THEIR
BARGAINING REPRESENTATIVE.  ON NOVEMBER 16, THE UNION PETITIONED THE
LABOR BOARD FOR A REPRESENTATION ELECTION.  THE BOARD CONDUCTED A
HEARING ON DECEMBER 29, AND ON FEBRUARY 19, 1960, ISSUED AN ORDER
DIRECTING THAT AN ELECTION BE HELD.  THE ELECTION WAS HELD ON MARCH 18,
1960. 

AT TWO MEETINGS ON NOVEMBER 4 AND 5, 1959, C.V. MCDONALD, THE VICE
PRESIDENT AND GENERAL MANAGER OF EXCHANGE PARTS, ANNOUNCED TO THE
EMPLOYEES THAT THEIR "FLOATING HOLIDAY" IN 1959 WOULD FALL ON DECEMBER
26 AND THAT THERE WOULD BE AN ADDITIONAL "FLOATING HOLIDAY" IN 1960. 
ON FEBRUARY 25, SIX DAYS AFTER THE BOARD ISSUED ITS ELECTION ORDER,
EXCHANGE PARTS HELD A DINNER FOR EMPLOYEES AT WHICH VICE-PRESIDENT
MCDONALD TOLD THE EMPLOYEES THAT THEY COULD DECIDE WHETHER THE EXTRA
DAY OF VACATION IN 1960 WOULD BE A "FLOATING HOLIDAY" OR WOULD BE TAKEN
ON THEIR BIRTHDAYS.  THE EMPLOYEES VOTED FOR THE LATTER.  MCDONALD ALSO
REFERRED TO THE FORTHCOMING REPRESENTATION ELECTION AS ONE IN WHICH, IN
THE WORDS OF THE TRIAL EXAMINER, THE EMPLOYEES WOULD "DETERMINE WHETHER
...  THEY WISHED TO HAND OVER THEIR RIGHT TO SPEAK AND ACT FOR
THEMSELVES."  HE STATED THAT THE UNION HAD DISTORTED SOME OF THE FACTS
AND POINTED OUT THE BENEFITS OBTAINED BY THE EMPLOYEES WITHOUT A
UNION.  HE URGED ALL THE EMPLOYEES TO VOTE IN THE ELECTION. 

ON MARCH 4 EXCHANGE PARTS SENT ITS EMPLOYEES A LETTER WHICH SPOKE OF
"THE EMPTY PROMISES OF THE UNION" AND "THE FACT THAT IT IS THE COMPANY
THAT PUTS THINGS IN YOUR ENVELOPE  ...  ."  AFTER MENTIONING A NUMBER
OF BENEFITS, THE LETTER SAID:  "THE UNION CAN'T PUT ANY OF THOSE THINGS
IN YOUR ENVELOPE - ONLY THE COMPANY CAN DO THAT.  (FN2)  FURTHER ON,
THE LETTER STATED:  "...  IT DIDN'T TAKE A UNION TO GET ANY OF THOSE T
WON'T TAKE A UNION TO GET ADDITIONAL IMPROVEMENTS IN THE FUTURE." 
ACCOMPANYING THE LETTER WAS A DETAILED STATEMENT OF THE BENEFITS
GRANTED BY THE COMPANY SINCE 1949 AND AN ESTIMATE OF THE MONETARY VALUE
OF SUCH BENEFITS TO THE EMPLOYEES.  INCLUDED IN THE STATEMENT OF
BENEFITS FOR 1960 WERE THE BIRTHDAY HOLIDAY, A NEW SYSTEM FOR COMPUTING
OVERTIME DURING HOLIDAY WEEKS WHICH HAD THE EFFECT OF INCREASING WAGES
FOR THOSE WEEKS, AND A NEW VACATION SCHEDULE WHICH ENABLED EMPLOYEES TO
EXTEND THEIR VACATIONS BY SANDWICHING THEM BETWEEN TWO WEEKENDS. 
ALTHOUGH EXCHANGE PARTS ASSERTS THAT THE POLICY BEHIND THE LATTER TWO
BENEFITS WAS ESTABLISHED EARLIER, IT IS CLEAR THAT THE LETTER OF MARCH
4 WAS THE FIRST GENERAL ANNOUNCEMENT OF THE CHANGES TO THE EMPLOYEES. 
IN THE ENSUING ELECTION THE UNION LOST. 

THE BOARD, AFFIRMING THE FINDINGS OF THE TRIAL EXAMINER, FOUND THAT
THE ANNOUNCEMENT OF THE BIRTHDAY HOLIDAY AND THE GRANT AND ANNOUNCEMENT
OF OVERTIME AND VACATION BENEFITS WERE ARRANGED BY EXCHANGE PARTS WITH
THE INTENTION OF INDUCING THE EMPLOYEES TO VOTE AGAINST THE UNION.  IT
FOUND THAT THIS CONDUCT VIOLATED SEC. 8(A)(1) OF THE NATIONAL LABOR
RELATIONS ACT AND ISSUED AN APPROPRIATE ORDER.  ON THE BOARD'S PETITION
FOR ENFORCEMENT OF THE ORDER, THE COURT OF APPEALS REJECTED THE FINDING
THAT THE ANNOUNCEMENT OF THE BIRTHDAY HOLIDAY WAS TIMED TO INFLUENCE
THE OUTCOME OF THE ELECTION.  IT ACCEPTED THE BOARD'S FINDINGS WITH
RESPECT TO THE OVERTIME AND VACATION BENEFITS, AND THE PROPRIETY OF
THOSE FINDINGS IS NOT IN CONTROVERSY HERE.  HOWEVER, NOTING THAT "THE
BENEFITS WERE PUT INTO EFFECT UNCONDITIONALLY ON A PERMANENT BASIS, AND
NO ONE HAS SUGGESTED THAT THERE WAS ANY IMPLICATION THE BENEFITS WOULD
BE WITHDRAWN IF THE WORKERS VOTED FOR THE UNION,"  304 F.2D 368, 375,
THE COURT DENIED ENFORCEMENT OF THE BOARD'S ORDER.  IT BELIEVED THAT IT
WAS NOT AN UNFAIR LABOR PRACTICE UNDER SEC. 8(A)(1) FOR AN EMPLOYER TO
GRANT BENEFITS TO ITS EMPLOYEES IN THESE CIRCUMSTANCES. 

INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7."  SECTION 7 PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)."  49 STAT.
452 (1935), AS AMENDED, 29 U.S.C. SEC. 157. 

WE THINK THE COURT OF APPEALS WAS MISTAKEN IN CONCLUDING THAT THE
CONFERRAL OF EMPLOYEE BENEFITS WHILE A REPRESENTATION ELECTION IS
PENDING, FOR THE PURPOSE OF INDUCING EMPLOYEES TO VOTE AGAINST THE
UNION, DOES NOT "INTERFERE WITH" THE PROTECTED RIGHT TO ORGANIZE. 

THE BROAD PURPOSE OF SEC. 8(A)(1) IS TO ESTABLISH "THE RIGHT OF
EMPLOYEES TO ORGANIZE FOR MUTUAL AID WITHOUT EMPLOYER INTERFERENCE." 
REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793, 798.  WE HAVE NO
DOUBT THAT IT PROHIBITS NOT ONLY INTRUSIVE THREATS AND PROMISES BUT
ALSO CONDUCT IMMEDIATELY FAVORABLE TO EMPLOYEES WHICH IS UNDERTAKEN
WITH THE EXPRESS PURPOSE OF IMPINGING UPON THEIR FREEDOM OF CHOICE FOR
OR AGAINST UNIONIZATION AND IS REASONABLY CALCULATED TO HAVE THAT
EFFECT.  IN MEDO PHOTO SUPPLY CORP. V. LABOR BOARD, 321 U.S. 678, 686,
THIS COURT SAID:  "THE ACTION OF EMPLOYEES WITH RESPECT TO THE CHOICE
OF THEIR BARGAINING AGENTS MAY BE INDUCED BY FAVORS BESTOWED BY THE
EMPLOYER AS WELL AS BY HIS THREATS OF DOMINATION."  ALTHOUGH IN THAT
CASE THERE WAS ALREADY A DESIGNATED BARGAINING AGENT AND THE OFFER OF
"FAVORS" WAS IN RESPONSE TO A SUGGESTION OF THE EMPLOYEES THAT THEY
WOULD LEAVE THE UNION IF FAVORS WERE BESTOWED, THE PRINCIPLES WHICH
DICTATED THE RESULT THERE ARE FULLY APPLICABLE HERE.  THE DANGER
INHERENT IN WELL-TIMED INCREASES IN BENEFITS IS THE SUGGESTION OF A
FIST INSIDE THE VELVET GLOVE.  EMPLOYEES ARE NOT LIKELY TO MISS THE
INFERENCE THAT THE SOURCE OF BENEFITS NOW CONFERRED IS ALSO THE SOURCE
FROM WHICH FUTURE BENEFITS MUST FLOW AND WHICH MAY DRY UP IF IT IS NOT
OBLIGED.  (FN3)  THE DANGER MAY BE DIMINISHED IF, AS IN THIS CASE, THE
BENEFITS ARE CONFERRED PERMANENTLY AND UNCONDITIONALLY.  BUT THE
ABSENCE OF CONDITIONS OR THREATS PERTAINING TO THE PARTICULAR BENEFITS
CONFERRED WOULD BE OF CONTROLLING SIGNIFICANCE ONLY IF IT COULD BE
PRESUMED THAT NO QUESTION OF ADDITIONAL BENEFITS OR RENEGOTIATION OF
EXISTING BENEFITS WOULD ARISE IN THE FUTURE; AND, OF COURSE, NO SUCH
PRESUMPTION IS TENABLE. 

OTHER COURTS OF APPEALS HAVE FOUND A VIOLATION OF SEC. 8(A)(1) IN THE
KIND OF CONDUCT INVOLVED HERE.  SEE, E.G., LABOR BOARD V. PYNE MOLDING
CORP., SUPRA; INDIANA METAL PRODUCTS CORP. V. LABOR BOARD, SUPRA.  IT
IS TRUE, AS THE COURT BELOW POINTED OUT, THAT IN MOST CASES OF THIS
KIND THE INCREASE IN BENEFITS COULD BE REGARDED AS "ONE PART OF AN
OVERALL PROGRAM OF INTERFERENCE AND RESTRAINT BY THE EMPLOYER,"  304
F.2D, AT 372, AND THAT IN THIS CASE THE QUESTIONED CONDUCT STOOD IN
ISOLATION.  OTHER UNLAWFUL CONDUCT MAY OFTEN BE AN INDICATION OF THE
MOTIVE BEHIND A GRANT OF BENEFITS WHILE AN ELECTION IS PENDING, AND TO
THAT EXTENT IT IS RELEVANT TO THE LEGALITY OF THE GRANT; BUT WHEN AS
HERE THE MOTIVE IS OTHERWISE ESTABLISHED, AN EMPLOYER IS NOT FREE TO
VIOLATE SEC. 8(A)(1) BY CONFERRING BENEFITS SIMPLY BECAUSE IT REFRAINS
FROM OTHER, MORE OBVIOUS VIOLATIONS.  WE CANNOT AGREE WITH THE COURT OF
APPEALS THAT ENFORCEMENT OF THE BOARD'S ORDER WILL HAVE THE "IRONIC"
RESULT OF "DISCOURAGING BENEFITS FOR LABOR."  304 F.2D, AT 376.  THE
BENEFICENCE OF AN EMPLOYER IS LIKELY TO BE EPHEMERAL IF PROMPTED BY A
THREAT OF UNIONIZATION WHICH IS SUBSEQUENTLY REMOVED.  INSULATING THE
RIGHT OF COLLECTIVE ORGANIZATION FROM CALCULATED GOOD WILL OF THIS SORT
DEPRIVES EMPLOYEES OF LITTLE THAT HAS LASTING VALUE.  REVERSED. 

FN1  SEE, E.G., INDIANA METAL PRODUCTS CORP. V. LABOR BOARD, 202 F.2D
613 (C.A. 7TH CIR.); LABOR BOARD V. PYNE MOLDING CORP., 226 F.2D 818
(C.A.2D CIR.). 

FN2  THE ITALICS APPEAR IN THE ORIGINAL LETTER. 

FN3  THE INFERENCE WAS MADE ALMOST EXPLICIT IN EXCHANGE PARTS' LETTER
TO ITS EMPLOYEES OF MARCH 4, ALREADY QUOTED, WHICH SAID:  "THE UNION
CAN'T PUT ANY OF THOSE  ...  (BENEFITS) IN YOUR ENVELOPE - ONLY THE
COMPANY CAN DO THAT."  WE PLACE NO RELIANCE, HOWEVER, ON THESE OR OTHER
WORDS OF THE RESPONDENT DISSOCIATED FROM ITS CONDUCT.  SECTION 8(C) OF
THE ACT, 61 STAT. 142 (1947), 29 U.S.C. SEC. 158(C), PROVIDES THAT THE
EXPRESSION OR DISSEMINATION OF "ANY VIEWS, ARGUMENT, OR OPINION" "SHALL
NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR PRACTICE UNDER ANY OF
THE PROVISIONS OF THIS ACT, IF SUCH EXPRESSION CONTAINS NO THREAT OF
REPRISAL OR FORCE OR PROMISE OF BENEFIT." 
..END :













ENGLAND V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS 375 U.S. 411 


NO. 7.  ARGUED OCTOBER 15, 1963.  - DECIDED JANUARY 13, 1964.  - 194 F.
SUPP. 521, REVERSED AND REMANDED. 


APPELLANTS ARE CHIROPRACTORS WHO SEEK TO PRACTICE IN LOUISIANA WITHOUT
COMPLYING WITH THE EDUCATIONAL REQUIREMENTS OF THE LOUISIANA MEDICAL
PRACTICE ACT.  THEY BROUGHT THIS ACTION AGAINST APPELLEE BOARD OF
MEDICAL EXAMINERS IN A FEDERAL DISTRICT COURT FOR AN INJUNCTION AND A
DECLARATION THAT, AS APPLIED TO THEM, THE ACT VIOLATED THE FOURTEENTH
AMENDMENT.  A THREE-JUDGE COURT INVOKED THE DOCTRINE OF ABSTENTION AND
REMITTED THE PARTIES TO THE STATE COURTS ON THE GROUND THAT A DECISION
THAT THE ACT DOES NOT APPLY TO CHIROPRACTORS MIGHT END THE
CONTROVERSY.  APPELLANTS THEN BROUGHT PROCEEDINGS IN THE STATE COURTS,
UNRESERVEDLY SUBMITTING FOR DECISION NOT ONLY THE STATE LAW QUESTION
BUT ALSO THEIR FOURTEENTH AMENDMENT CLAIMS, WHICH WERE RESOLVED AGAINST
THEM.  APPELLANTS RETURNED TO THE DISTRICT COURT, WHICH DISMISSED THE
COMPLAINT, ON THE GROUND THAT THE FEDERAL QUESTIONS HAD BEEN DECIDED BY
THE STATE COURTS AND THE PROPER REMEDY WAS BY APPEAL FROM THE STATE
COURTS TO THE SUPREME COURT.  HELD: ON THE RECORD IN THIS CASE, THE
JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR
DECISION ON THE MERITS OF APPELLANTS' FOURTEENTH AMENDMENT CLAIMS.  PP.
412-423. 

1.  A PARTY REMITTED TO STATE COURTS BY AN ABSTENTION ORDER OF A
FEDERAL DISTRICT COURT HAS THE RIGHT TO RETURN TO THE DISTRICT COURT,
AFTER OBTAINING THE AUTHORITATIVE STATE COURT RULING FOR WHICH THE
COURT ABSTAINED, FOR A DETERMINATION OF HIS FEDERAL CLAIMS.  PP. 415
417. 

2.  WHERE A PARTY FREELY AND WITHOUT RESERVATION SUBMITS HIS FEDERAL
CLAIMS FOR DECISION BY THE STATE COURTS, LITIGATES THEM THERE, AND HAS
THEM DECIDED THERE, THEN - WHETHER OR NOT HE SEEKS DIRECT REVIEW OF THE
STATE DECISION IN THIS COURT - HE HAS ELECTED TO FORGO HIS RIGHT TO
RETURN TO THE DISTRICT COURT.  PP. 417-419. 

3.  THE CASE OF GOVERNMENT EMPLOYEES V. WINDSOR, 353 U.S. 364, IS NOT
TO BE READ AS MEANING THAT A PARTY MUST LITIGATE HIS FEDERAL CLAIMS IN
THE STATE COURTS, BUT ONLY THAT HE MUST INFORM THOSE COURTS WHAT HIS
FEDERAL CLAIMS ARE, SO THAT THE STATE STATUTE MAY BE CONSTRUED "IN
LIGHT OF" THOSE CLAIMS.  P. 420. 

4.  A PARTY MAY READILY FORESTALL ANY CONCLUSION THAT HE HAS ELECTED
NOT TO RETURN TO THE DISTRICT COURT BY MAKING ON THE STATE RECORD AN
EXPLICIT RESERVATION TO THE DISPOSITION OF THE ENTIRE CASE BY THE STATE
COURTS; THAT IS, HE MAY INFORM THE STATE COURTS THAT HE IS EXPOSING HIS
FEDERAL CLAIMS THERE ONLY FOR THE PURPOSE OF COMPLYING WITH WINDSOR,
AND THAT HE INTENDS, SOULD THE STATE COURTS HOLD AGAINST HIM ON THE
QUESTION OF STATE LAW, TO RETURN TO THE DISTRICT COURT FOR DISPOSITION
OF HIS FEDERAL CONTENTIONS.  P. 421. 

5.  HOWEVER, SUCH AN EXPLICIT RESERVATION IS NOT INDISPENSABLE FOR A
LITIGANT IS NOT TO BY DENIED HIS RIGHT TO RETURN TO THE DISTRICT COURT
UNLESS IT CLEARLY APPEARS THAT HE VOLUNTARILY DID MORE THAN WINDSOR
REQUIRED AND FULLY LITIGATED HIS FEDERAL CLAIMS IN THE STATE COURTS. 
P. 421. 

6.  ON THE RECORD IN THIS CASE, THE COURT DOES NOT APPLY TO THESE
APPELLANTS THE RULE HERE ANNOUNCED, SINCE THEIR PRIMARY REASON FOR
LITIGATING THEIR FEDERAL CLAIMS IN THE STATE COURTS WAS ASSERTEDLY THE
VIEW THAT WINDSOR REQUIRED THEM TO DO SO - A VIEW WHICH WAS MISTAKEN
AND WILL NOT AVAIL OTHER LITIGANTS WHO RELY UPON IT AFTER TODAY'S
DECISION, BUT WHICH WAS NOT UNREASONABLE AT THE TIME.  P. 422. 

ENGLAND ET AL. V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE GRADUATES OF SCHOOLS OF CHIROPRACTIC WHO SEEK TO
PRACTICE IN LOUISIANA WITHOUT COMPLYING WITH THE EDUCATIONAL
REQUIREMENTS OF THE LOUISIANA MEDICAL PRACTICE ACT, TITLE 37, LA. REV.
STAT. SECS. 1261-1290.  THEY BROUGHT THIS ACTION AGAINST RESPONDENT
LOUISIANA STATE BOARD OF MEDICAL EXAMINERS IN THE FEDERAL DISTRICT
COURT FOR THE EASTERN DISTRICT OF LOUISIANA, SEEKING AN INJUNCTION AND
A DECLARATION THAT, AS APPLIED TO THEM, THE ACT VIOLATED THE FOURTEENTH
AMENDMENT.  A STATUTORY THREE-JUDGE COURT (FN1) INVOKED, SUA SPONTE,
THE DOCTRINE OF ABSTENTION, ON THE GROUND THAT "THE STATE COURT MIGHT
EFFECTIVELY END THIS CONTROVERSY BY A DETERMINATION THAT CHIROPRACTORS
ARE NOT GOVERNED BY THE STATUTE," AND ENTERED AN ORDER "STAYING FURTHER
PROCEEDINGS IN THIS COURT UNTIL THE COURTS OF THE STATE OF LOUISIANA
SHALL HAVE BEEN AFFORDED AN OPPORTUNITY TO DETERMINE THE ISSUES HERE
PRESENTED, AND RETAINING JURISDICTION TO TAKE SUCH STEPS AS MAY BE
NECESSARY FOR THE JUST DISPOSITION OF THE LITIGATION SHOULD ANYTHING
PREVENT A PROMPT STATE COURT DETERMINATION."  180 F. SUPP. 121, 124. 
(FN2) 

APPELLANTS THEREUPON BROUGHT PROCEEDINGS IN THE LOUISIANA COURTS. 
THEY DID NOT RESTRICT THOSE PROCEEDINGS TO THE QUESTION WHETHER THE
MEDICAL PRACTICE ACT APPLIED TO CHIROPRACTORS.  THEY UNRESERVEDLY
SUBMITTED FOR DECISION, AND BRIEFED AND ARGUED, THEIR CONTENTION THAT
THE ACT, IF APPLICABLE TO CHIROPRACTORS, VIOLATED THE FOURTEENTH
AMENDMENT.  (FN3)  THE STATE PROCEEDINGS TERMINATED WITH A DECISION BY
THE LOUISIANA SUPREME COURT DECLINING TO REVIEW AN INTERMEDIATE
APPELLATE COURT'S HOLDING BOTH THAT THE MEDICAL PRACTICE ACT APPLIED TO
CHIROPRACTORS AND THAT, AS SO APPLIED, IT DID NOT VIOLATE THE
FOURTEENTH AMENDMENT.  126 SO. 2D 51. 

APPELLANTS THEN RETURNED TO THE DISTRICT COURT, (FN4) WHERE THEY WERE
MET WITH A MOTION BY APPELLEES TO DISMISS THE FEDERAL ACTION.  THIS
MOTION WAS GRANTED,  ON THE GROUND THAT "SINCE THE COURTS OF LOUISIANA
HAVE PASSED ON ALL ISSUES RAISED, INCLUDING THE CLAIMS OF DEPRIVATION
UNDER THE FEDERAL CONSTITUTION, THIS COURT, HAVING NO POWER TO REVIEW
THOSE PROCEEDINGS, MUST DISMISS THE COMPLAINT.  THE PROPER REMEDY WAS
BY APPEAL TO THE SUPREME COURT OF THE UNITED STATES."  THE COURT SAW
THE CASE AS ILLUSTRATING "THE DILEMMA OF A LITIGANT WHO HAS INVOKED THE
JURISDICTION OF A FEDERAL COURT TO ASSERT A CLAIMED CONSTITUTIONAL
RIGHT AND FINDS HIMSELF REMITTED TO THE STATE TRIBUNALS."  THE DILEMMA,
SAID THE COURT, WAS THAT "ON THE ONE HAND, IN VIEW OF GOVERNMENT &
CIVIC EMPLOYEES ORGANIZING COMMITTEE V. WINDSOR, 353 U.S. 364,  ...  HE
DARE NOT RESTRICT HIS STATE COURT CASE TO LOCAL LAW ISSUES.  ON THE
OTHER, IF, AS REQUIRED BY WINDSOR, HE RAISES THE FEDERAL QUESTION
THERE, WELL ESTABLISHED PRINCIPLES WILL BAR A RELITIGATION OF THOSE
ISSUES IN THE UNITED STATES DISTRICT COURT  ...  .  SINCE, IN THE USUAL
CASE, NO QUESTION NOT ALREADY PASSED ON BY THE STATE COURTS WILL
REMAIN, HE IS THEREBY EFFECTIVELY DEPRIVED OF A FEDERAL FORUM FOR THE
ADJUDICATION OF HIS FEDERAL CLAIMS."  194 F. SUPP. 521, 522. 
APPELLANTS APPEALED DIRECTLY TO THIS COURT UNDER 28 U.S.C. SEC. 1253,
AND WE NOTED PROBABLE JURISDICTION.  372 U.S. 904.  WE REVERSE AND
REMAND TO THE DISTRICT COURT FOR DECISION ON THE MERITS OF APPELLANTS'
FOURTEENTH AMENDMENT CLAIMS. 

THERE ARE FUNDAMENTAL OBJECTIONS TO ANY CONCLUSION THAT A LITIGANT
WHO HAS PROPERLY INVOKED THE JURISDICTION OF A FEDERAL DISTRICT COURT
TO CONSIDER FEDERAL CONSTITUTIONAL CLAIMS CAN BE COMPELLED, WITHOUT HIS
CONSENT AND THROUGH NO FAULT OF HIS OWN, TO ACCEPT INSTEAD A STATE
COURT'S DETERMINATION OF THOSE CLAIMS.  (FN5)  SUCH A RESULT WOULD BE
AT WAR WITH THE UNQUALIFIED TERMS IN WHICH CONGRESS, PURSUANT TO
CONSTITUTIONAL AUTHORIZATION, HAS CONFERRED SPECIFIC CATEGORIES OF
JURISDICTION UPON THE FEDERAL COURTS, AND WITH THE PRINCIPLE THAT "WHEN
A FEDERAL COURT IS PROPERLY APPEALED TO IN A CASE OVER WHICH IT HAS BY
LAW JURISDICTION, IT IS ITS DUTY TO TAKE SUCH JURISDICTION  ...  .  THE
RIGHT OF A PARTY PLAINTIFF TO CHOOSE A FEDERAL COURT WHERE THERE IS A
CHOICE CANNOT BE PROPERLY DENIED."  WILLCOX V. CONSOLIDATED GAS CO.,
212 U.S. 19, 40.  NOR DOES ANYTHING IN THE ABSTENTION DOCTRINE REQUIRE
OR SUPPORT SUCH A RESULT.  ABSTENTION IS A JUDGE-FASHIONED VEHICLE FOR
ACCORDING APPROPRIATE DEFERENCE TO THE "RESPECTIVE COMPETENCE OF THE
STATE AND FEDERAL COURT SYSTEMS."  LOUISIANA P.&L. CO. V. THIBODAUX,
360 U.S. 25, 29.  ITS RECOGNITION OF THE ROLE OF STATE COURTS AS THE
FINAL EXPOSITORS OF STATE LAW IMPLIES NO DISREGARD FOR THE PRIMACY OF
THE FEDERAL JUDICIARY IN DECIDING QUESTIONS OF FEDERAL LAW.  (FN6)
ACCORDINGLY, WE HAVE ON SEVERAL OCCASIONS EXPLICITLY RECOGNIZED THAT
ABSTENTION "DOES NOT, OF COURSE, INVOLVE THE ABDICATION OF FEDERAL
JURISDICTION, BUT ONLY THE POSTPONEMENT OF ITS EXERCISE."  HARRISON V.
NAACP, 360 U.S. 167, 177; ACCORD, LOUISIANA P.&L. CO. V. THIBODAUX,
SUPRA, 360 U.S., AT 29.  (FN7)

IT IS TRUE, AFTER A POST-ABSTENTION DETERMINATION AND REJECTION OF
HIS FEDERAL CLAIMS BY THE STATE COURTS, A LITIGANT COULD SEEK DIRECT
REVIEW IN THIS COURT.  NAACP V. BUTTON, 371 U.S. 415; LASSITER V.
NORTHAMPTON COUNTY BOARD OF ELECTIONS, 360 U.S. 45.  BUT SUCH REVIEW,
EVEN WHEN AVAILABLE BY APPEAL RATHER THAN ONLY BY DISCRETIONARY WRIT OF
CERTIORARI, IS AN INADEQUATE SUBSTITUTE FOR THE INITIAL DISTRICT COURT
DETERMINATION - OFTEN BY THREE JUDGES, 28 U.S.C. SEC. 2281 - TO WHICH
THE LITIGANT IS ENTITLED IN THE FEDERAL COURTS.  THIS IS TRUE AS TO
ISSUES OF LAW; IT IS ESPECIALLY TRUE AS TO ISSUES OF FACT.  LIMITING
THE LITIGANT TO REVIEW HERE WOULD DENY HIM THE BENEFIT OF A FEDERAL
TRIAL COURT'S ROLE IN CONSTRUCTING A RECORD AND MAKING FACT FINDINGS. 
HOW THE FACTS ARE FOUND WILL OFTEN DICTATE THE DECISION OF FEDERAL
CLAIMS.  "IT IS THE TYPICAL, NOT THE RARE, CASE IN WHICH CONSTITUTIONAL
CLAIMS TURN UPON THE RESOLUTION OF CONTESTED FACTUAL ISSUES."  TOWNSEND
V. SAIN, 372 U.S. 293, 312.  "THERE IS ALWAYS IN LITIGATION A MARGIN OF
ERROR, REPRESENTING ERROR IN FACTFINDING ...  ."  SPEISER V. RANDALL,
357 U.S. 513, 525.  THUS IN CASES WHERE, BUT FOR THE APPLICATION OF THE
ABSTENTION DOCTRINE, THE PRIMARY FACT DETERMINATION WOULD HAVE BEEN BY
THE DISTRICT COURT, A LITIGANT MAY NOT BE UNWILLINGLY DEPRIVED OF THAT
DETERMINATION.  (FN8)  THE POSSIBILITY OF APPELLATE REVIEW BY THIS
COURT OF A STATE COURT DETERMINATION MAY NOT BE SUBSTITUTED, AGAINST A
PARTY'S WISHES, FOR HIS RIGHT TO LITIGATE HIS FEDERAL CLAIMS FULLY IN
THE FEDERAL COURTS.  WE MADE THIS CLEAR ONLY LAST TERM IN NAACP V.
BUTTON, SUPRA, 371 U.S., AT 427, WHEN WE SAID THAT "A PARTY HAS THE
RIGHT TO RETURN TO THE DISTRICT COURT, AFTER OBTAINING THE
AUTHORITATIVE STATE COURT CONSTRUCTION FOR WHICH THE COURT ABSTAINED,
FOR A FINAL DETERMINATION OF HIS CLAIM." 

WE ALSO MADE CLEAR IN BUTTON, HOWEVER, THAT A PARTY MAY ELECT TO
FORGO THAT RIGHT.  OUR HOLDING IN THAT CASE WAS THAT A JUDGMENT OF THE
VIRGINIA SUPREME COURT OF APPEALS UPON FEDERAL ISSUES SUBMITTED TO THE
STATE TRIBUNALS BY PARTIES REMITTED THERE UNDER THE ABSTENTION DOCTRINE
WAS "FINAL" FOR PURPOSES OF OUR REVIEW UNDER 28 U.S.C. SEC. 1257.  IN
SO DETERMINING, WE HELD THAT THE PETITIONER HAD ELECTED "TO SEEK A
COMPLETE AND FINAL ADJUDICATION OF (ITS) RIGHTS IN THE STATE COURTS"
AND THUS NOT TO RETURN TO THE DISTRICT COURT, AND THAT IT HAD
MANIFESTED THIS ELECTION "BY SEEKING FROM THE RICHMOND CIRCUIT COURT 'A
BINDING ADJUDICATION' OF ALL ITS CLAIMS AND A PERMANENT INJUNCTION AS
WELL AS DECLARATORY RELIEF, BY MAKING NO RESERVATION TO THE DISPOSITION
OF THE ENTIRE CASE BY THE STATE COURTS, AND BY COMING HERE DIRECTLY ON
CERTIORARI."  371 U.S., AT 427-428.  WE FASHIONED THE RULE RECOGNIZING
SUCH AN ELECTION BECAUSE WE SAW NO INCONSISTENCY WITH THE ABSTENTION
DOCTRINE IN ALLOWING A LITIGANT TO DECIDE, ONCE THE FEDERAL COURT HAS
ABSTAINED AND COMPELLED HIM TO PROCEED IN THE STATE COURTS IN ANY
EVENT, TO ABANDON HIS ORIGINAL CHOICE OF A FEDERAL FORUM AND SUBMIT HIS
ENTIRE CASE TO THE STATE COURTS, RELYING ON THE OPPORTUNITY TO COME
HERE DIRECTLY IF THE STATE DECISION ON HIS FEDERAL CLAIMS SHOULD GO
AGAINST HIM.  SUCH A CHOICE BY A LITIGANT SERVES TO AVOID MUCH OF THE
DELAY AND EXPENSE TO WHICH APPLICATION OF THE ABSTENTION DOCTRINE
INEVITABLY GIVES RISE; WHEN THE CHOICE IS VOLUNTARILY MADE, WE SEE NO
REASON WHY IT SHOULD NOT BE GIVEN EFFECT. 

IN BUTTON, WE HAD NO NEED TO DETERMINE WHAT STEPS, IF ANY, SHORT OF
THOSE TAKEN BY THE PETITIONER THERE WOULD SUFFICE TO MANIFEST THE
ELECTION.  THE INSTANT CASE, WHERE APPELLANTS DID NOT ATTEMPT TO COME
DIRECTLY TO THIS COURT BUT SOUGHT TO RETURN TO THE DISTRICT COURT,
REQUIRES SUCH A DETERMINATION.  THE LINE DRAWN SHOULD BE BRIGHT AND
CLEAR, SO THAT LITIGANTS SHUNTED FROM FEDERAL TO STATE COURTS BY
APPLICATION OF THE ABSTENTION DOCTRINE WILL NOT BE EXPOSED, NOT ONLY TO
UNUSUAL EXPENSE AND DELAY, BUT ALSO TO PROCEDURAL TRAPS OPERATING TO
DEPRIVE THEM OF THEIR RIGHT TO A DISTRICT COURT DETERMINATION OF THEIR
FEDERAL CLAIMS.  (FN9)  IT MIGHT BE ARGUED THAT NOTHING SHORT OF WHAT
WAS DONE IN BUTTON SHOULD SUFFICE - THAT A LITIGANT SHOULD RETAIN THE
RIGHT TO RETURN TO THE DISTRICT COURT UNLESS HE NOT ONLY LITIGATES HIS
FEDERAL CLAIMS IN THE STATE TRIBUNALS BUT SEEKS REVIEW OF THE STATE
DECISION IN THIS COURT.  (FN10)  BUT WE SEE NO REASON WHY A PARTY,
AFTER UNRESERVEDLY LITIGATING HIS FEDERAL CLAIMS IN THE STATE COURTS
ALTHOUGH NOT REQUIRED TO DO SO, SHOULD BE ALLOWED TO IGNORE THE ADVERSE
STATE DECISION AND START ALL OVER AGAIN IN THE DISTRICT COURT.  SUCH A
RULE WOULD NOT ONLY COUNTENANCE AN UNNECESSARY INCREASE IN THE LENGTH
AND COST OF THE LITIGATION; IT WOULD ALSO BE A POTENTIAL SOURCE OF
FRICTION BETWEEN THE STATE AND FEDERAL JUDICIARIES.  WE IMPLICITLY
REJECTED SUCH A RULE IN BUTTON, WHEN WE STATED THAT A PARTY ELECTS TO
FORGO HIS RIGHT TO RETURN TO THE DISTRICT COURT BY A DECISION "TO SEEK
A COMPLETE AND FINAL ADJUDICATION OF HIS RIGHTS IN THE STATE COURTS." 
WE NOW EXPLICITLY HOLD THAT IF A PARTY FREELY AND WITHOUT RESERVATION
SUBMITS HIS FEDERAL CLAIMS FOR DECISION BY THE STATE COURTS, LITIGATES
THEM THERE, AND HAS THEM DECIDED THERE, THEN - WHETHER OR NOT HE SEEKS
DIRECT REVIEW OF THE STATE DECISION IN THIS COURT - HE HAS ELECTED TO
FORGO HIS RIGHT TO RETURN TO THE DISTRICT COURT. 

THIS RULE REQUIRES CLARIFICATION OF OUR DECISION IN GOVERNMENT
EMPLOYEES V. WINDSOR, 353 U.S. 364, THE CASE REFERRED TO BY THE
DISTRICT COURT.  THE PLAINTIFFS IN WINDSOR HAD SUBMITTED TO THE STATE
COURTS ONLY THE QUESTION WHETHER THE STATE STATUTE THEY CHALLENGED
APPLIED TO THEM, AND HAD NOT "ADVANCED" OR "PRESENTED" TO THOSE COURTS
THEIR CONTENTIONS AGAINST THE STATUTE'S CONSTITUTIONALITY.   WE HELD
THAT "THE BARE ADJUDICATION BY THE ALABAMA SUPREME COURT THAT THE
(APPELLANT) UNION IS SUBJECT TO THIS ACT DOES NOT SUFFICE, SINCE THAT
COURT WAS NOT ASKED TO INTERPRET THE STATUTE IN LIGHT OF THE
CONSTITUTIONAL OBJECTIONS PRESENTED TO THE DISTRICT COURT.  IF
APPELLANTS' FREEDOM-OF-EXPRESSION AND EQUAL-PROTECTION ARGUMENTS HAD
BEEN PRESENTED TO THE STATE COURT, IT MIGHT HAVE CONSTRUED THE STATUTE
IN A DIFFERENT MANNER."  353 U.S., AT 366.  ON ORAL ARGUMENT IN THE
INSTANT CASE, WE WERE ADVISED THAT APPELLANTS' SUBMISSION OF THEIR
FEDERAL CLAIMS TO THE STATE COURTS HAD BEEN MOTIVATED PRIMARILY BY A
BELIEF THAT WINDSOR REQUIRED THIS.  THE DISTRICT COURT LIKEWISE THOUGHT
THAT UNDER WINDSOR A PARTY IS REQUIRED TO LITIGATE HIS FEDERAL QUESTION
IN THE STATE COURTS AND "DARE NOT RESTRICT HIS STATE COURT CASE TO
LOCAL LAW ISSUES."  194 F. SUPP., AT 522.  OTHERS HAVE READ WINDSOR THE
SAME WAY.  (FN11)  IT SHOULD NOT BE SO READ.  THE CASE DOES NOT MEAN
THAT A PARTY MUST LITIGATE HIS FEDERAL CLAIMS IN THE STATE COURTS, BUT
ONLY THAT HE MUST INFORM THOSE COURTS WHAT HIS FEDERAL CLAIMS ARE, SO
THAT THE STATE STATUTE MAY BE CONSTRUED "IN LIGHT OF" THOSE CLAIMS. 
SEE NOTE, 73 HARV. L. REV. 1358, 1364-1365 (1960).  THUS MERE
COMPLIANCE WITH WINDSOR WILL NOT SUPPORT A CONCLUSION, MUCH LESS CREATE
A PRESUMPTION, THAT A LITIGANT HAS FREELY AND WITHOUT RESERVATION
LITIGATED HIS FEDERAL CLAIMS IN THE STATE COURTS AND SO ELECTED NOT TO
RETURN TO THE DISTRICT COURT. 

WE RECOGNIZE THAT IN THE HEAT OF LITIGATION A PARTY MAY FIND IT
DIFFICULT TO AVOID DOING MORE THAN IS REQUIRED BY WINDSOR.  THIS WOULD
BE PARTICULARLY TRUE IN THE TYPICAL CASE, SUCH AS THE INSTANT ONE,
WHERE THE STATE COURTS ARE ASKED TO CONSTRUE A STATE STATUTE AGAINST
THE BACKDROP OF A FEDERAL CONSTITUTIONAL CHALLENGE.  THE LITIGANT
DENYING THE STATUTE'S APPLICABILITY MAY BE LED NOT MERELY TO STATE HIS
FEDERAL CONSTITUTIONAL CLAIM BUT TO ARGUE IT, FOR IF HE CAN PERSUADE
THE STATE COURT THAT APPLICATION OF THE STATUTE TO HIM WOULD OFFEND THE
FEDERAL CONSTITUTION, HE WILL ORDINARILY HAVE PERSUADED IT THAT THE
STATUTE SHOULD NOT BE CONSTRUED AS APPLICABLE TO HIM.  IN ADDITION, THE
PARTIES CANNOT PREVENT THE STATE COURT FROM RENDERING A DECISION ON THE
FEDERAL QUESTION IF IT CHOOSES TO DO SO; AND EVEN IF SUCH A DECISION IS
NOT EXPLICIT, A HOLDING THAT THE STATUTE IS APPLICABLE MAY ARGUABLY
IMPLY, IN VIEW OF THE CONSTITUTIONAL OBJECTIONS TO SUCH A CONSTRUCTION,
THAT THE COURT CONSIDERS THE CONSTITUTIONAL CHALLENGE TO BE WITHOUT
MERIT.    DESPITE THESE UNCERTAINTIES ARISING FROM APPLICATION OF
WINDSOR - WHICH DECISION, WE REPEAT, DOES NOT REQUIRE THAT FEDERAL
CLAIMS BE ACTUALLY LITIGATED IN THE STATE COURTS - A PARTY MAY READILY
FORESTALL ANY CONCLUSION THAT HE HAS ELECTED NOT TO RETURN TO THE
DISTRICT COURT.  HE MAY ACCOMPLISH THIS BY MAKING ON THE STATE RECORD
THE "RESERVATION TO THE DISPOSITION OF THE ENTIRE CASE BY THE STATE
COURTS" THAT WE REFERRED TO IN BUTTON.  THAT IS, HE MAY INFORM THE
STATE COURTS THAT HE IS EXPOSING HIS FEDERAL CLAIMS THERE ONLY FOR THE
PURPOSE OF COMPLYING WITH WINDSOR, AND THAT HE INTENDS, SHOULD THE
STATE COURTS HOLD AGAINST HIM ON THE QUESTION OF STATE LAW, TO RETURN
TO THE DISTRICT COURT FOR DISPOSITION OF HIS FEDERAL CONTENTIONS.  SUCH
AN EXPLICIT RESERVATION IS NOT INDISPENSABLE; THE LITIGANT IS IN NO
EVENT TO BE DENIED HIS RIGHT TO RETURN TO THE DISTRICT COURT UNLESS IT
CLEARLY APPEARS THAT HE VOLUNTARILY DID MORE THAN WINDSOR REQUIRED AND
FULLY LITIGATED HIS FEDERAL CLAIMS IN THE STATE COURTS.  (FN12)  WHEN
THE RESERVATION HAS BEEN MADE, HOWEVER, HIS RIGHT TO RETURN WILL IN ALL
EVENTS BE PRESERVED.  (FN13) 

ON THE RECORD IN THE INSTANT CASE, THE RULE WE ANNOUNCE TODAY WOULD
CALL FOR AFFIRMANCE OF THE DISTRICT COURT'S JUDGMENT.  BUT WE ARE
UNWILLING TO APPLY THE RULE AGAINST THESE APPELLANTS.  AS WE HAVE
NOTED, THEIR PRIMARY REASON FOR LITIGATING THEIR FEDERAL CLAIMS IN THE
STATE COURTS WAS ASSERTEDLY A VIEW THAT WINDSOR REQUIRED THEM TO DO SO.
(FN14)  THAT VIEW WAS MISTAKEN, AND WILL NOT AVAIL OTHER LITIGANTS WHO
RELY UPON IT AFTER TODAY'S DECISION.  BUT WE CANNOT SAY, IN THE FACE OF
THE SUPPORT GIVEN THE VIEW BY RESPECTABLE AUTHORITIES, INCLUDING THE
COURT BELOW, THAT APPELLANTS WERE UNREASONABLE IN HOLDING IT OR ACTING
UPON IT.  WE THEREFORE HOLD THAT THE DISTRICT COURT SHOULD NOT HAVE
DISMISSED THEIR ACTION.  THE JUDGMENT IS REVERSED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED. 

FN1  THE ACTION WAS BROUGHT IN 1957.  THE DISTRICT COURT INITIALLY
DISMISSED THE COMPLAINT ON THE AUTHORITY OF LOUISIANA STATE BOARD OF
MEDICAL EXAMINERS V. FIFE, 162 LA. 681, 111 SO. 58, AFF'D PER CURIAM,
274 U.S. 720.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED, 259
F.2D 626, ON PETITION FOR REHEARING, 263 F.2D 661.  WE DENIED
CERTIORARI, 359 U.S. 1012.  ON REMAND THE THREE-JUDGE DISTRICT COURT
WAS CONVENED. 

FN2  APPELLANTS DID NOT CHALLENGE THE ORDER OF ABSTENTION BY APPEAL
HERE.  SEE TURNER V. CITY OF MEMPHIS, 369 U.S. 350; 28 U.S.C. SEC.
1253.  NOR DO THEY NOW CHALLENGE IT.  THUS THERE IS NOT BEFORE US ANY
QUESTION AS TO EITHER THE PROPER SCOPE OF THE ABSTENTION DOCTRINE OR
THE PROPRIETY OF ITS APPLICATION TO THIS CASE. 

FN3  APPELLANTS' PETITION IN THE LOUISIANA TRIAL COURT APPENDED A
COPY OF THE ABSTENTION ORDER AND OPINION AND RECITED THAT THE STATE
PROCEEDING WAS BROUGHT "IN PURSUANCE OF AND OBEDIENCE TO" THE
ABSTENTION ORDER.  LIKE THE COMPLAINT FILED IN THE FEDERAL COURT, THE
PETITION SOUGHT BOTH DECLARATORY AND INJUNCTIVE RELIEF.  THE
ALLEGATIONS WERE THAT THE MEDICAL PRACTICE ACT WAS INAPPLICABLE TO
CHIROPRACTORS AND ALSO "IN THE ALTERNATIVE, IN THE EVENT THE COURT
SHOULD HOLD THAT THE MEDICAL PRACTICE ACT DOES APPLY TO YOUR PLAINTIFFS
...  SAID ACT IS UNCONSTITUTIONAL" BECAUSE IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  THE PETITION CHALLENGED THE STATUTE'S VALIDITY
UNDER THAT AMENDMENT IN TERMS SUBSTANTIALLY IDENTICAL TO THOSE IN THE
FEDERAL COURT COMPLAINT.  THE TRIAL COURT, ON THE BASIS OF THE SAME
DOCUMENTARY EVIDENCE THAT HAD BEEN SUBMITTED TO THE THREE-JUDGE
DISTRICT COURT, SUSTAINED APPELLEES' DEFENSE OF "NO CAUSE OF ACTION." 

FN4  APPELLANTS MADE NO ATTEMPT TO OBTAIN APPELLATE REVIEW OF THE
STATE COURT DECISION IN THIS COURT.  SEE LASSITER V. NORTHAMPTON COUNTY
BOARD OF ELECTIONS, 360 U.S. 45; NAACP V. BUTTON, 371 U.S. 415; 28
U.S.C. SEC. 1257(2). 

FN5  AT LEAST THIS IS TRUE IN A CASE, LIKE THE INSTANT ONE, NOT
INVOLVING THE POSSIBILITY OF UNWARRANTED DISRUPTION OF A STATE
ADMINISTRATIVE PROCESS.  COMPARE BURFORD V. SUN OIL CO., 319 U.S. 315;
ALABAMA PUBLIC SERVICE COMM'N V. SOUTHERN R. CO., 341 U.S. 341. 

FN6  SEE KURLAND, TOWARD A CO-OPERATIVE JUDICIAL FEDERALISM:  THE
FEDERAL COURT ABSTENTION DOCTRINE, 24 F.R.D. 481, 487. 

FN7  THE DOCTRINE CONTEMPLATES ONLY "THAT CONTROVERSIES INVOLVING
UNSETTLED QUESTIONS OF STATE LAW (MAY) BE DECIDED IN THE STATE
TRIBUNALS PRELIMINARY TO A FEDERAL COURT'S CONSIDERATION OF THE
UNDERLYING FEDERAL CONSTITUTIONAL QUESTIONS," CITY OF MERIDIAN V.
SOUTHERN BELL TEL. & TEL. CO., 358 U.S. 639, 640; "THAT DECISION OF THE
FEDERAL QUESTION BE DEFERRED UNTIL THE POTENTIALLY CONTROLLING STATE
LAW ISSUE IS AUTHORITATIVELY PUT TO REST," UNITED GAS PIPE LINE CO. V.
IDEAL CEMENT CO., 369 U.S. 134, 135-136; "THAT FEDERAL COURTS DO NOT
DECIDE QUESTIONS OF CONSTITUTIONALITY ON THE BASIS OF PRELIMINARY
GUESSES REGARDING LOCAL LAW," SPECTOR MOTOR SERVICE, INC., V.
MCLAUGHLIN, 323 U.S. 101, 105; "THAT THESE ENACTMENTS SHOULD BE EXPOSED
TO STATE CONSTRUCTION OR LIMITING INTERPRETATION BEFORE THE FEDERAL
COURTS ARE ASKED TO DECIDE UPON THEIR CONSTITUTIONALITY," HARRISON V.
NAACP, 360 U.S. 167, 178. 

FN8  EVEN WHERE FACT FINDINGS ON FEDERAL CONSTITUTIONAL CONTENTIONS
ARE FOR STATE TRIBUNALS TO MAKE IN THE FIRST INSTANCE, AS IN STATE
CRIMINAL PROSECUTIONS, THEY ARE NOT IMMUNE, WHEN BROUGHT INTO QUESTION
IN FEDERAL HABEAS CORPUS, FROM DISTRICT COURT CONSIDERATION AND, IN
PROPER CASES, FROM DE NOVO CONSIDERATION.  TOWNSEND V. SAIN, 372 U.S.
293, 312-319. 

FN9  CF. WRIGHT, THE ABSTENTION DOCTRINE RECONSIDERED, 37 TEX. L.
REV. 815, 825 (1959). 

FN10  ONE CASE HAS EVEN PERMITTED THE LITIGANT TO RETURN TO THE
DISTRICT COURT ALTHOUGH REVIEW WAS SOUGHT AND DENIED HERE.  SEE TRIBUNE
REVIEW PUBLISHING CO. V. THOMAS, 153 F. SUPP.  486, AFF'D, 254 F.2D
883, WHERE THE LITIGANT'S FEDERAL CLAIMS WERE DECIDED BY THE DISTRICT
COURT FOLLOWING DECISION UPON THE SAME CLAIMS BY THE PENNSYLVANIA
SUPREME COURT AND DENIAL BY US OF CERTIORARI TO THAT COURT'S JUDGMENT. 
MACK V. PENNSYLVANIA, 386 PA. 251, 126 A.2D 679, CERT. DENIED, 352 U.S.
1002. 

FN11  SEE NOTE, 59 COL. L. REV. 749, 773 (1959); NOTE, 73 HARV. L.
REV. 1358, 1364 (1960), QUOTING BRIEF FOR APPELLANT, P. 5, IN LASSITER
V. NORTHAMPTON COUNTY BOARD OF ELECTIONS, 360 U.S. 45. 

FN12  IT HAS BEEN SUGGESTED THAT STATE COURTS MAY "TAKE NO MORE
PLEASURE THAN DO FEDERAL COURTS IN DECIDING CASES PIECEMEAL  ...  " AND
"PROBABLY PREFER TO DETERMINE THEIR QUESTIONS OF LAW WITH COMPLETE
RECORDS OF CASES IN WHICH THEY CAN ENTER FINAL JUDGMENTS BEFORE THEM." 
CLAY V. SUN INS. OFFICE, 363 U.S. 207, 227 (DISSENTING OPINION).  WE
ARE CONFIDENT THAT STATE COURTS, SHARING THE ABSTENTION DOCTRINE'S
PURPOSE OF "FURTHERING THE HARMONIOUS RELATION BETWEEN STATE AND
FEDERAL AUTHORITY," RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496, 501,
WILL RESPECT A LITIGANT'S RESERVATION OF HIS FEDERAL CLAIMS FOR
DECISION BY THE FEDERAL COURTS.  SEE SPECTOR MOTOR SERVICE, INC., V.
WALSH, 135 CONN. 37, 40-41, 61 A.2D 89, 92.  HOWEVER, EVIDENCE THAT A
PARTY HAS BEEN COMPELLED BY THE STATE COURTS TO LITIGATE HIS FEDERAL
CLAIMS THERE WILL OF COURSE PRECLUDE A FINDING THAT HE HAS VOLUNTARILY
DONE SO.  AND IF THE STATE COURT HAS DECLINED TO DECIDE THE STATE
QUESTION BECAUSE OF THE LITIGANT'S REFUSAL TO SUBMIT WITHOUT
RESERVATION THE FEDERAL QUESTION AS WELL, THE DISTRICT COURT WILL HAVE
NO ALTERNATIVE BUT TO VACATE ITS ORDER OF ABSTENTION. 

FN13  THE RESERVATION MAY BE MADE BY ANY PARTY TO THE LITIGATION. 
USUALLY THE PLAINTIFF WILL HAVE MADE THE ORIGINAL CHOICE TO LITIGATE IN
THE FEDERAL COURT, BUT THE DEFENDANT ALSO, BY VIRTUE OF THE REMOVAL
JURISDICTION, 28 U.S.C. SEC. 1441(B), HAS A RIGHT TO LITIGATE THE
FEDERAL QUESTION THERE.  ONCE ISSUE HAS BEEN JOINED IN THE FEDERAL
COURT, NO PARTY IS ENTITLED TO INSIST, OVER ANOTHER'S OBJECTION, UPON A
BINDING STATE COURT DETERMINATION OF THE FEDERAL QUESTION.  THUS, WHILE
A PLAINTIFF WHO UNRESERVEDLY LITIGATES HIS FEDERAL CLAIMS IN THE STATE
COURTS MAY THEREBY ELECT TO FORGO HIS OWN RIGHT TO RETURN TO THE
DISTRICT COURT, HE CANNOT IMPAIR THE CORRESPONDING RIGHT OF THE
DEFENDANT.  THE LATTER MAY PROTECT HIS RIGHT BY EITHER DECLINING TO
OPPOSE THE PLAINTIFF'S FEDERAL CLAIM IN THE STATE COURT OR OPPOSING IT
WITH THE APPROPRIATE RESERVATION.  IT MAY WELL BE, OF COURSE, THAT A
REFUSAL TO LITIGATE OR A RESERVATION BY ANY PARTY WILL DETER THE STATE
COURT FROM DECIDING THE FEDERAL QUESTION. 

FN14  THE DISTRICT COURT'S ABSTENTION ORDER, IN INSTRUCTING
APPELLANTS TO OBTAIN A STATE COURT DETERMINATION NOT OF THE STATE
QUESTION ALONE BUT OF "THE ISSUES HERE PRESENTED," WAS ALSO
MISLEADING. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE JUDGE-MADE RULE WE ANNOUNCE TODAY PROMISES TO HAVE SUCH A SERIOUS
IMPACT ON LITIGANTS WHO ARE PROPERLY IN THE FEDERAL COURTS THAT I THINK
A REAPPRAISAL OF RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496, FROM
WHICH TODAY'S DECISION STEMS, IS NECESSARY.  ALTHOUGH THE PROPRIETY OF
THE PULLMAN DOCTRINE, EITHER AS ORIGINALLY DECIDED OR AS IT HAS
EVOLVED, HAS NOT BEEN RAISED BY THE PARTIES, I THINK IT IS TIME FOR THE
COURT, SUA SPONTE, TO REEVALUATE IT.

                                   I. 

THE PULLMAN CASE, DECIDED A LITTLE OVER 20 YEARS AGO, LAUNCHED AN
EXPERIMENT IN THE MANAGEMENT OF FEDERAL-STATE RELATIONS THAT HAS
INAPPROPRIATELY BEEN CALLED THE "ABSTENTION DOCTRINE."  THERE ARE
NUMEROUS OCCASIONS WHEN A FEDERAL COURT ABSTAINS, DISMISSING AN ACTION
OR DECLINING TO ENTERTAIN IT BECAUSE A STATE TRIBUNAL IS A MORE
APPROPRIATE ONE FOR RESOLVING THE CONTROVERSY.  A BANKRUPTCY COURT
COMMONLY SENDS ITS TRUSTEE INTO STATE COURTS TO HAVE COMPLEX QUESTIONS
OF LOCAL LAW ADJUDICATED.  THOMPSON V. MAGNOLIA CO., 309 U.S. 478.  A
FEDERAL COURT REFUSES TO EXERCISE ITS EQUITY POWERS BY APPOINTING
RECEIVERS TO TAKE CHARGE OF A FAILING BUSINESS, WHERE STATE PROCEDURES
AFFORD ADEQUATE PROTECTION TO ALL PRIVATE RIGHTS.  PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176.  A FEDERAL COURT WILL NORMALLY NOT ENTERTAIN A
SUIT TO ENJOIN CRIMINAL PROSECUTIONS IN STATE TRIBUNALS, WITH REVIEW OF
SUCH CONVICTIONS BY THIS COURT BEING RESTRICTED TO CONSTITUTIONAL
ISSUES.  BEAL V. MISSOURI PAC. R. CO., 312 U.S. 45.  A FEDERAL COURT
DECLINES TO ENTERTAIN AN ACTION FOR DECLARATORY RELIEF AGAINST STATE
TAXES BECAUSE OF THE FEDERAL POLICY AGAINST INTERFERING WITH THEM BY
INJUNCTION.  GREAT LAKES CO. V. HUFFMAN, 319 U.S. 293.  WHERE STATE
ADMINISTRATIVE ACTION IS CHALLENGED, A FEDERAL COURT WILL NORMALLY NOT
INTERVENE WHERE THERE IS AN ADEQUATE STATE COURT REVIEW WHICH IS
PROTECTIVE OF ANY FEDERAL CONSTITUTIONAL CLAIM.  BURFORD V. SUN OIL
CO., 319 U.S. 315; ALABAMA COMM'N V. SOUTHERN R. CO., 341 U.S. 341. 
THE EXAMPLES COULD BE MULTIPLIED WHERE THE FEDERAL COURT ADOPTS A HANDS
OFF POLICY AND REMITS THE LITIGANTS TO A STATE TRIBUNAL. 

RAILROAD COMM'N V. PULLMAN CO., SUPRA, IS A DIFFERENT KIND OF CASE. 
THERE THE FEDERAL COURT DOES NOT ABSTAIN; IT DOES NOT DISMISS THE
COMPLAINT; IT RETAINS JURISDICTION WHILE THE PARTIES GO TO A STATE
TRIBUNAL TO OBTAIN A PRELIMINARY RULING - A DECLARATORY JUDGMENT - ON
STATE LAW QUESTIONS.  THE REASON FOR REQUIRING THEM TO REPAIR TO THE
STATE TRIBUNAL FOR A PRELIMINARY RULING ON A QUESTION OF STATE LAW IS
BECAUSE THE STATE LAW IS CHALLENGED ON FEDERAL CONSTITUTIONAL GROUNDS;
IF THE STATE LAW IS CONSTRUED ONE WAY, THE CONSTITUTIONAL ISSUE MAY
DISAPPEAR; THE FEDERAL CONSTITUTIONAL QUESTION WILL SURVIVE ONLY IF ONE
OF TWO OR MORE STATE-LAW CONSTRUCTIONS IS ADOPTED.  THE "LAST WORD" AS
TO THE MEANING OF LOCAL LAW "BELONGS NEITHER TO US NOR TO THE DISTRICT
COURT BUT TO THE SUPREME COURT OF TEXAS," WE SAID IN THE PULLMAN CASE,
312 U.S., AT 500.  WE CONCLUDED: 

"IN THIS SITUATION A FEDERAL COURT OF EQUITY IS ASKED TO DECIDE AN
ISSUE BY MAKING A TENTATIVE ANSWER WHICH MAY BE DISPLACED TOMORROW BY A
STATE ADJUDICATION.  GLENN V. FIELD PACKING CO., 290 U.S. 177; LEE V.
BICKELL, 292 U.S. 415.  THE REIGN OF LAW IS HARDLY PROMOTED IF AN
UNNECESSARY RULING OF A FEDERAL COURT IS THUS SUPPLANTED BY A
CONTROLLING DECISION OF A STATE COURT.  THE RESOURCES OF EQUITY ARE
EQUAL TO AN ADJUSTMENT THAT WILL AVOID THE WASTE OF A TENTATIVE
DECISION AS WELL AS THE FRICTION OF A PREMATURE CONSTITUTIONAL
ADJUDICATION."  IBID. 

WE THEREFORE REMANDED THE CASE "WITH DIRECTIONS TO RETAIN THE BILL
PENDING A DETERMINATION OF PROCEEDINGS, TO BE BROUGHT WITH REASONABLE
PROMPTNESS, IN THE STATE COURT IN CONFORMITY WITH THIS OPINION."  ID.,
AT 501-502. 

                             II. 

I WAS A MEMBER OF THE COURT THAT LAUNCHED PULLMAN AND SENT IT ON ITS
WAY.  BUT IF I HAD REALIZED THE CREATURE IT WAS TO BECOME, MY DOUBTS
WOULD HAVE BEEN FAR DEEPER THAN THEY WERE. 

PULLMAN FROM THE START SEEMED TO HAVE SOME QUALITIES OF A LEGAL
RESEARCH LUXURY.  AS I SAID IN CLAY V. SUN INS. OFFICE, 363 U.S. 207,
228 (DISSENTING OPINION): 

"SOME LITIGANTS HAVE LONG PURSES.  MANY, HOWEVER, CAN HARDLY AFFORD
ONE LAWSUIT, LET ALONE TWO.  SHUTTLING THE PARTIES BETWEEN STATE AND
FEDERAL TRIBUNALS IS A SURE WAY OF DEFEATING THE ENDS OF JUSTICE.  THE
PURSUIT OF JUSTICE IS NOT AN ACADEMIC EXERCISE.  THERE ARE NO
FOUNDATIONS TO FINANCE THE RESOLUTION OF NICE STATE LAW QUESTIONS
INVOLVED IN FEDERAL COURT LITIGATION.  THE PARTIES ARE ENTITLED -
ABSENT UNIQUE AND RARE SITUATIONS - TO ADJUDICATION OF THEIR RIGHTS IN
THE TRIBUNALS WHICH CONGRESS HAS EMPOWERED TO ACT." 

AS RECENTLY STATED BY THE LATE JUDGE CHARLES E. CLARK OF THE SECOND
CIRCUIT COURT OF APPEALS, "AS A RESULT OF THIS DOCTRINE, INDIVIDUAL
LITIGANTS HAVE BEEN SHUFFLED BACK AND FORTH BETWEEN STATE AND FEDERAL
COURTS, AND CASES HAVE BEEN DRAGGED OUT OVER EIGHT-AND TEN YEAR
PERIODS."  FEDERAL PROCEDURAL REFORM AND STATES' RIGHTS, 40 TEX. L.
REV. 211, 221 (1961).    PROFESSOR CHARLES A. WRIGHT DESCRIBED THE
RESULTS THAT OCCURRED WHEN THIS DOCTRINE WAS APPLIED TO A SUIT TO
ENJOIN THE ENFORCEMENT OF A STATE STATUTE RESTRICTING THE RIGHTS OF
STATE EMPLOYEES TO JOIN UNIONS:  (FN1)  "  ...  AFTER FIVE YEARS OF
LITIGATION, INCLUDING TWO TRIPS TO THE SUPREME COURT OF THE UNITED
STATES AND TWO TO THE HIGHEST STATE COURT, THE PARTIES STILL HAD FAILED
TO OBTAIN A DECISION ON THE MERITS OF THE STATUTE."  THE ABSTENTION
DOCTRINE RECONSIDERED, 37 TEX. L. REV. 815, 818 (1959).    THIS CASE
RAISES A QUESTION SO SIMPLE THAT IT AT LEAST VERGES ON THE
INSUBSTANTIAL.  THE QUESTION IS WHETHER LOUISIANA'S MEDICAL PRACTICE
ACT, LA. REV. STAT., SEC. 37:1261 ET SEQ. INCLUDES CHIROPRACTORS AS
PRACTITIONERS OF MEDICINE.  THE STATE BOARD OF MEDICAL EXAMINERS,
REPRESENTING THE STATE, SAYS THAT THEY ARE INCLUDED.  THE CHIROPRACTORS
SAY THEY ARE NOT AND, IF THEY ARE, THAT THE ACT IS UNCONSTITUTIONAL. 
THE CASE WAS STARTED IN MAY 1957, AND HERE WE ARE NEARLY SEVEN YEARS
LATER WITHOUT A DECISION ON THE MERITS. 

THAT SEEMS LIKE AN UNNECESSARY PRICE TO PAY FOR OUR FEDERALISM. 
REFERRAL TO STATE COURTS FOR DECLARATORY RULINGS ON STATE LAW QUESTIONS
IS SAID TO ENCOURAGE A SMOOTH OPERATION OF OUR FEDERALISM, AS IT MAY
AVOID CLASHES BETWEEN THE TWO SYSTEMS.  BUT THERE ALWAYS HAVE BEEN
CLASHES AND ALWAYS WILL BE; AND THE INFLUENCE OF THE PULLMAN DOCTRINE
HAS, I THINK, BEEN DE MINIMIS.  MOREOVER, THE COMPLEXITY OF LOCAL LAW
TO FEDERAL JUDGES IS INHERENT IN THE FEDERAL COURT SYSTEM AS DESIGNED
BY CONGRESS.  RESOLUTION OF LOCAL LAW QUESTIONS IS IMPLICIT IN
DIVERSITY OF CITIZENSHIP JURISDICTION.  SINCE ERIE R. CO. V. TOMPKINS,
304 U.S. 64, THE FEDERAL COURTS UNDER THAT HEAD OF JURISDICTION DAILY
HAVE THE TASK OF DETERMINING WHAT THE STATE LAW IS.  THE FACT THAT
THOSE QUESTIONS ARE COMPLEX AND DIFFICULT IS NO EXCUSE FOR A REFUSAL BY
THE DISTRICT COURT TO ENTERTAIN THE SUIT.  MEREDITH V. WINTER HAVEN,
320 U.S. 228.  WE THERE SAID: 

"THE DIVERSITY JURISDICTION WAS NOT CONFERRED FOR THE BENEFIT OF THE
FEDERAL COURTS OR TO SERVE THEIR CONVENIENCE.  ITS PURPOSE WAS
GENERALLY TO AFFORD TO SUITORS AN OPPORTUNITY IN SUCH CASES, AT THEIR
OPTION, TO ASSERT THEIR RIGHTS IN THE FEDERAL RATHER THAN IN THE STATE
COURTS."  ID., AT 234.  AND SEE ALLEGHENY COUNTY V. MASHUDA CO., 360
U.S. 185, 196. 

THE QUESTION NOW PRESENTED IS HOW AND WHEN ONE WHO ASSERTS HIS
"OPTION" TO SUE IN "THE FEDERAL RATHER THAN IN THE STATE COURTS," BUT
WHO IS REMITTED TO THE STATE COURT FOR A PRELIMINARY RULING, LOSES HIS
RIGHT TO RETURN TO THE FEDERAL COURT FOR A FINAL ADJUDICATION ON THE
CONSTITUTIONAL ISSUES. 

IN PROPPER V. CLARK, 337 U.S. 472, 491, WE SAID THAT IF, ON REFERRAL
OF A DISCRETE ISSUE TO THE STATE COURTS, THE LATTER REQUIRED "COMPLETE
ADJUDICATION OF THE CONTROVERSY, THE DISTRICT COURT WOULD PERHAPS BE
COMPELLED TO STAY PROCEEDINGS IN THE STATE COURT TO PROTECT ITS OWN
JURISDICTION."  WE WENT ON TO SAY, "OTHERWISE, IN SENDING A FRAGMENT OF
THE LITIGATION TO A STATE COURT, THE FEDERAL COURT MIGHT FIND ITSELF
BLOCKED BY RES JUDICATA, WITH THE RESULT THAT THE ENTIRE FEDERAL
CONTROVERSY WOULD BE OUSTED FROM THE FEDERAL COURTS, WHERE IT WAS
PLACED BY CONGRESS."  ID., AT 491-492. 

TODAY WE PUT FEDERAL JURISDICTION IN JEOPARDY.  AS THE COURT SAYS
THERE ARE MANY ADVANTAGES IN A FEDERALLY CONSTRUCTED RECORD.  MOREOVER,
FEDERAL JUDGES APPOINTED FOR LIFE ARE MORE LIKELY TO ENFORCE THE
CONSTITUTIONAL RIGHTS OF UNPOPULAR MINORITIES THAN ELECTED STATE
JUDGES.  MADISON STATED THE PROBLEM WHEN THE CREATION OF LOWER FEDERAL
COURTS WAS BEING MOOTED: 

"WHAT WAS TO BE DONE AFTER IMPROPER VERDICTS, IN STATE TRIBUNALS,
OBTAINED UNDER THE BIASED DIRECTIONS OF A DEPENDENT JUDGE, OR THE LOCAL
PREJUDICES OF AN UNDIRECTED JURY?  TO REMAND THE CAUSE FOR A NEW TRIAL
WOULD ANSWER NO PURPOSE.  TO ORDER A NEW TRIAL AT THE SUPREME BAR WOULD
OBLIGE THE PARTIES TO BRING UP THEIR WITNESSES, THOUGH EVER SO DISTANT
FROM THE SEAT OF THE COURT.  AN EFFECTIVE JUDICIARY ESTABLISHMENT,
COMMENSURATE TO THE LEGISLATIVE AUTHORITY, WAS ESSENTIAL.  A GOVERNMENT
WITHOUT A PROPER EXECUTIVE AND JUDICIARY WOULD BE THE MERE TRUNK OF A
BODY, WITHOUT ARMS OR LEGS TO ACT OR MOVE."  5 ELLIOT'S DEBATES (LIPP. 
ED. 1941), P. 159. 

FEDERAL JUDGES HAVE COME IN FOR A SHARE OF CRITICISM IN THIS REGARD,
THE CHARGE AT TIMES BEING THAT ON RACIAL ISSUES THEY HAVE TOO OFTEN
"SUFFERED THE FEDERAL LAW TO BE FLOUTED."  LUSKY, RACIAL DISCRIMINATION
AND THE FEDERAL LAW, 63 COL. L. REV. 1163, 1179 (1963).  THAT AT TIMES
MAY BE THE CASE.  BUT FROM THIS VANTAGE POINT THEIR DEVOTION TO THE
RULE OF LAW OVER-ALL SEEMS OUTSTANDING.  WE STAND TO LET FEDERAL COURTS
LOSE THEIR COMMAND OVER CRITICAL LITIGATION BY WHAT WE DO TODAY.  THE
COURT HOLDS THAT, THOUGH THE LITIGANT GOES TO THE STATE COURT
INVOLUNTARILY, HE LOSES HIS RIGHT TO RETURN TO THE FEDERAL COURT IF HE
SUBMITS THE LOCAL LAW QUESTION AND THE CONSTITUTIONAL QUESTIONS TO THE
STATE TRIBUNAL WITHOUT RESERVING HIS RIGHT TO RETURN TO THE FEDERAL
FORUM FOR A FINAL ADJUDICATION.  IT WILL OFTEN BE NECESSARY TO SUBMIT
THE LOCAL LAW QUESTION IN LIGHT OF THE CONSTITUTIONAL QUESTIONS. 
INDEED IT WILL BE PRUDENT TO DO SO IN LIGHT OF GOVERNMENT EMPLOYEES V.
WINDSOR, SUPRA, WHERE WE RULED, "THE BARE ADJUDICATION BY THE ALABAMA
SUPREME COURT THAT THE UNION IS SUBJECT TO THIS ACT DOES NOT SUFFICE,
SINCE THAT COURT WAS NOT ASKED TO INTERPRET THE STATUTE IN LIGHT OF THE
CONSTITUTIONAL OBJECTIONS PRESENTED TO THE DISTRICT COURT."  353 U.S.,
AT 366. 

YET WE NOW HOLD THAT IF A PARTY, WHO IS SENT BY THE FEDERAL COURT TO
THE STATE COURTS FOR A PRELIMINARY RULING, SUBMITS THE WHOLE PROBLEM TO
THE COURTS - THAT IS, THE CONSTITUTIONAL AS WELL AS THE BARE BONES OF
THE STATE LAW QUESTION - HE IS PRESUMED TO HAVE ELECTED TO TRY HIS CASE
THERE RATHER THAN IN THE FEDERAL COURTS, UNLESS HE EXPRESSLY RESERVED
THE RIGHT TO RETURN TO THE FEDERAL TRIBUNAL.  PERHAPS THE COURT DOES
THAT TO AVOID THE CONSEQUENCES OF RES JUDICATA.  BUT RES JUDICATA IS
NOT A CONSTITUTIONAL PRINCIPLE; IT HAS NO HIGHER DIGNITY THAN THE
PRINCIPLE WE ANNOUNCE TODAY.  IN PROPPER V. CLARK, SUPRA, WE SAID THAT
TO AVOID RES JUDICATA THE DISTRICT COURT SHOULD STAY THE STATE
PROCEEDINGS.  BETTER THAT WE APPROVE THAT JUDGE-MADE PROCEDURE THAN TO
OVERLAY THE TREACHEROUS REQUIREMENT OF THE PULLMAN CASE WITH THIS NEW
JUDGE-MADE REQUIREMENT. 

WHAT WE DO TODAY MAKES THE PULLMAN CASE SOMETHING OF A FRANKENSTEIN. 
ANY PRESUMPTION SHOULD WORK THE OTHER WAY - THAT HE WHO IS REQUIRED TO
GO TO THE STATE COURTS AND DOES WHAT WE REQUIRE HIM TO DO WHEN HE GETS
THERE, IS NOT THERE VOLUNTARILY AND DOES NOT FORSAKE HIS FEDERAL SUIT,
UNLESS HE DOES SOMETHING IN THE STATE COURTS THAT HE IS NOT REQUIRED TO
DO AND THAT EVINCES AN ELECTION TO LITIGATE THE MATTER FINALLY AND NOT
PRELIMINARILY IN THE STATE COURTS. 

AS, IF, AND WHEN HE EXHAUSTS THE STATE PROCEDURE AND DECIDES TO COME
HERE, AS WAS DONE IN NAACP V. BUTTON, 371 U.S. 415, HE HAS ELECTED TO
ABANDON THE FEDERAL FOR THE STATE FORUM.  ID., AT 428.  BUT SHORT OF
THAT, HE SELDOM CAN BE SAID TO HAVE MADE SUCH AN ELECTION.  FOR WHEN HE
PURSUES THE MATTER THROUGH THE HIERARCHY OF THE STATE COURTS, HE IS
DOING ONLY WHAT HE IS REQUIRED TO DO.  THE ONLY TIME WHEN HE GOES
BEYOND THAT REQUIREMENT IS WHEN HE TAKES THE FORK IN THE ROAD LEADING
HERE RATHER THAN THE ONE TO THE DISTRICT COURT. 

                                 III. 

IF THE PULLMAN DOCTRINE IS TO BE PRESERVED, WE SHOULD LIGHTEN RATHER
THAN MAKE MORE PONDEROUS THE PROCEDURES WHICH WE HAVE BEEN IMPOSING. 
WE HAVE MADE PULLMAN MANDATORY, NOT DISCRETIONARY, WITH THE DISTRICT
COURTS.  AS STATED IN LOUISIANA P.&L. CO. V. THIBODAUX, 360 U.S. 25,
28, "  ...  WE HAVE REQUIRED DISTRICT COURTS, AND NOT MERELY SANCTIONED
AN EXERCISE OF THEIR DISCRETIONARY POWER, TO STAY THEIR PROCEEDINGS
PENDING THE SUBMISSION OF THE STATE LAW QUESTION TO STATE
DETERMINATION."  SO, NO MATTER THE EASE WITH WHICH THE WHOLE
CONTROVERSY CAN BE RESOLVED, PARTIES ARE SENT THEIR WEARY AND EXPENSIVE
WAY INTO THE STATE TRIBUNALS.  WHETHER OR NOT WE AGREE WITH MR. JUSTICE
BLACK THAT THE PRESENT CASE INVOLVES NO SUBSTANTIAL FEDERAL QUESTION,
IT CERTAINLY BORDERS ON THE INSUBSTANTIAL; AND A DISTRICT COURT, IF IT
HAS THAT VIEW OF A CASE, SHOULD BE ALLOWED IN ITS DISCRETION TO DECIDE
THE WHOLE CASE AT ONCE, AVOIDING THE STATE LITIGATION COMPLETELY - FREE
OF INTERFERENCE HERE OR IN THE COURT OF APPEALS. 

WE HAVE, MOREOVER, EXTENDED THE PULLMAN DOCTRINE, CONTRARY TO OUR
PRIOR DECISION IN PROPPER V. CLARK, SUPRA, AT 491-492, TO CASES THAT
INVOLVE NO SHADOW OF A SUBSTANTIAL CONSTITUTIONAL ISSUE BUT ONLY LOCAL
LAW QUESTIONS IN THE FIELD OF EMINENT DOMAIN.  (FN2)  LOUISIANA P.&L.
CO. V. THIBODAUX, SUPRA.  AS MY BROTHER BRENNAN SAID IN DISSENT IN THAT
CASE: 

"  ...  THE COURT ATTEMPTS TO CARVE OUT A NEW AREA IN WHICH, EVEN
THOUGH AN ADJUDICATION BY THE FEDERAL COURT WOULD NOT REQUIRE THE
DECISION OF FEDERAL CONSTITUTIONAL QUESTIONS, NOR CREATE FRICTION WITH
THE STATE, THE FEDERAL COURTS ARE ENCOURAGED TO ABNEGATE THEIR
RESPONSIBILITIES IN DIVERSITY CASES."  360 U.S., AT 36-37. 

THUS THE PULLMAN DOCTRINE REFLECTS AN ANTIPATHY TO FEDERAL COURTS
PASSING ON STATE LAW QUESTIONS. 

                                   IV. 

THERE HAVE BEEN HISTORIC CLASHES BETWEEN THE FEDERAL COURTS AND THE
STATES, SOME OF THEM NEEDLESS.   SEE WARREN, FEDERAL AND STATE COURT
INTERFERENCE, 43 HARV. L. REV. 345 (1930).  THE EXAMPLES ARE NUMEROUS. 
THUS FEDERAL COURTS, FREE AND EASY WITH INJUNCTIONS, INTERFERED
WHOLESALE WITH PUBLIC UTILITY RATE ORDERS, (FN3) WITH EFFORTS OF THE
STATES TO COLLECT THEIR REVENUE, (FN4) AND WITH SUITS IN STATE COURTS. 
(FN5)  PRIOR TO ERIE R. CO. V. TOMPKINS, SUPRA, THE "MISCHIEVOUS
RESULTS" (304 U.S., AT 74) OF THE EARLIER RULE OF SWIFT V. TYSON, 16
PET. 1, WERE APPARENT, FEDERAL COURTS BY THEIR FORMULATION OF "GENERAL
LAW" OFTEN DEFEATING LEGITIMATE STATE POLICIES.  304 U.S., AT 73-78. 
FEDERAL COURTS, INFLATING THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, BECAME A SORT OF SUPER-LEGISLATURE, REVIEWING THE WISDOM OF
A WIDE VARIETY OF STATE LAW.  SEE, E.G., LOCHNER V. NEW YORK, 198 U.S.
45; BURNS BAKING CO. V. BRYAN, 264 U.S. 504. 

THOSE CHAPTERS HAVE ENDED, SOMETIMES AS A RESULT OF JUDICIAL
HOUSEKEEPING, (FN6) AT OTHER TIMES AS A CONSEQUENCE OF FEDERAL
LEGISLATION.  (FN7)  WHAT MOSTLY REMAIN ARE CLASHES AND CONFLICTS
BETWEEN STATE AND NATION INHERENT IN THE PERFORMANCE OF THE FUNCTIONS
OF A REFEREE IN THE FEDERAL SYSTEM.  SUCH WAS THE UNAVOIDABLE
CONSEQUENCE OF THE EFFORT OF THE MARSHALL COURT, BEGINNING AT LEAST
WITH GIBBONS V. OGDEN, 9 WHEAT.  1, TO CREATE A GREAT COMMON MARKET
WITHIN THE GRAND DESIGN OF THE COMMERCE CLAUSE.  SUCH IS THE
UNAVOIDABLE CONSEQUENCE TODAY WHEN NEGROES CLAIM THE FULL BENEFITS OF
THE FOURTEENTH (SEE BROWN V. BOARD OF EDUCATION, 347 U.S. 483; 349 U.S.
294), AND FIFTEENTH AMENDMENTS.  SEE ALABAMA V. UNITED STATES, 304 F.2D
583, AFF'D 371 U.S. 37; UNITED STATES V. RAINES, 362 U.S. 17; UNITED
STATES V. MCELVEEN, 180 F. SUPP. 10, AFF'D SUB NOM. UNITED STATES V.
THOMAS, 362 U.S. 58. 

IF WE ARE TO RETAIN THE PULLMAN DOCTRINE, I THINK WITH ALL DEFERENCE,
WE SHOULD MAKE IT LESS OF A MANDATORY AND MORE A DISCRETIONARY
PROCEDURE AND LIGHTEN ITS REQUIREMENTS, RATHER THAN MAKE THEM
STRICTER. 

WE SHOULD PERMIT THE DISTRICT COURT TO REFER THE MATTER TO THE STATE
COURT FOR A DECLARATORY JUDGMENT ONLY WHERE THE STATE OFFERS SUCH
RELIEF.  (FN8)  OTHERWISE, WE SHOULD REQUIRE THAT THE LITIGATION BE
CONDUCTED IN THE FEDERAL COURT WHERE CONGRESS DECIDED IT COULD BE
CONDUCTED.  IN ANY EVENT WE SHOULD LEAVE IT TO THE DISTRICT COURT TO
REFUSE TO REFER THE MATTER TO THE STATE COURTS, IF, AS HERE, THERE IS
NO LOCAL LAW QUESTION TANGLED IN A MAZE OF STATE STATUTES AND STATE
DECISIONS. 

IF WE ARE TO RETAIN THE PULLMAN DOCTRINE, WE SHOULD NOT WEIGHT IT
DOWN BY PROCEDURES, WHICH, LIKE TODAY'S DECISION, MAKE IT A TRAP FOR
THE UNWARY. 

THE PULLMAN DOCTRINE, AS IT HAS EVOLVED, IS THE LEAST DESIRABLE
ALTERNATIVE.  IT IS BETTER, I THINK, FOR THE FEDERAL COURTS TO DECIDE
LOCAL LAW QUESTIONS, AS THEY CUSTOMARILY DO IN THE DIVERSITY CASES,
ADDING AT THE FOOT OF THE DECREE AS MR. JUSTICE CARDOZO, WRITING FOR A
UNANIMOUS COURT, DID IN LEE V. BICKELL, 292 U.S. 415, 426: 

"  ...  THAT THE PARTIES TO THE SUIT OR ANY OF THEM MAY APPLY AT ANY
TIME TO THE COURT BELOW, BY BILL OR OTHERWISE, AS THEY MAY BE ADVISED,
FOR A FURTHER ORDER OR DECREE, IN CASE IT SHALL APPEAR THAT THE STATUTE
HAS BEEN THEN CONSTRUED BY THE HIGHEST COURT OF FLORIDA AS APPLICABLE
TO THE TRANSACTIONS IN CONTROVERSY HERE." 

ANOTHER ALTERNATIVE IS FOR THE DISTRICT COURT TO FOLLOW THE
CERTIFICATE ROUTE, WHEN ONE IS AVAILABLE.  THE FLORIDA SUPREME COURT IS
AUTHORIZED (FN9) TO PROVIDE BY RULE (FN10) FOR ANSWERING CERTIFICATES
CONCERNING STATE LAW QUESTIONS TENDERED BY THE FEDERAL COURTS.  WE USE
THAT PROCEDURE (FN11) ON FLORIDA STATE LAW PERPLEXITIES (DRESNER V.
TALLAHASSEE, 375 U.S. 136; ALDRICH V. ALDRICH, 375 U.S. 75, 249).  WE
CANNOT REQUIRE THE STATES TO PROVIDE SUCH A PROCEDURE; BUT BY ASSERTING
THE INDEPENDENCE OF THE FEDERAL COURTS AND INSISTING ON PROMPT
ADJUDICATIONS WE WILL ENCOURAGE ITS USE. 

                    V. 

AFTER TODAY'S DECISION, APPLICATION OF THE PULLMAN DOCTRINE TO THE
FIELD OF CIVIL RIGHTS, PARTICULARLY TO CONTROVERSIES INVOLVING THE
RIGHTS OF NEGROES, WILL HAVE, I THINK, SERIOUS EFFECTS.  HARRISON V.
NAACP, 360 U.S. 167, AND NAACP V. BUTTON, SUPRA, ARE HARBINGERS OF
THINGS TO COME.  THE COMPLAINT IN THOSE CASES WAS FILED NOVEMBER 28,
1956, AND OUR DECISION ON THE MERITS WAS NOT ANNOUNCED UNTIL JANUARY
14, 1963.  IN OTHER WORDS, NEARLY SEVEN YEARS ELAPSED BETWEEN THE
INSTITUTION OF THE LITIGATION AND AN ADJUDICATION ON THE MERITS.  THE
END PRODUCT COULD STILL BE DESCRIBED AS A SIZABLE COLLISION BETWEEN
NATION AND STATE.    CASES WHERE NEGROES ARE PROSECUTED AND CONVICTED
IN STATE COURTS CAN FIND THEIR WAY EXPEDITIOUSLY TO THIS COURT,
PROVIDED THEY PRESENT CONSTITUTIONAL QUESTIONS.  YET INSTANCES WHERE
NEGROES ASSERT THEIR RIGHTS IN JUDICIAL PROCEEDINGS WILL CONTINUE TO BE
NUMEROUS.  THOSE SUITS WILL BE CIVIL ONES AND ALMOST ALWAYS INSTITUTED
IN THE FEDERAL DISTRICT COURTS, SINCE THOSE COURTS HAVE A SPECIAL
COMPETENCE IN THE FIELD AND A RECORD OF INDEPENDENCE PROTECTIVE OF THE
RIGHTS OF UNPOPULAR MINORITIES.  THAT LITIGATION MORE OFTEN THAN NOT
ENTAILS CONSTRUCTION OF STATE STATUTES, CITY ORDINANCES, STATE COURT
DECISIONS, RULINGS OF STATE ADMINISTRATIVE COMMISSIONS, AND THE LIKE. 
UNDER THE PULLMAN DOCTRINE A NEGRO WHO STARTS IN THE FEDERAL COURT SOON
FINDS HIMSELF IN THE STATE COURT AND HIS JOURNEY THERE MAY BE NOT ONLY
WEARY AND EXPENSIVE BUT ALSO LONG AND DRAWN OUT.  THERE WILL BE NO
INCLINATION TO EXPEDITE HIS CASE.  THE WHOLE WEIGHT OF THE STATUS QUO
WILL BE ON THE SIDE OF DELAY AND PROCRASTINATION.  WHAT WE DO TODAY
ADDS TO THE TOLL THAT THE PULLMAN DOCTRINE WILL TAKE OF CIVIL RIGHTS. 

THE BAR IS NOW TOLD THAT IF ONE REPAIRS TO THE STATE COURTS AND
SUBMITS THE STATE LAW QUESTION ALONG WITH THE FEDERAL CONSTITUTIONAL
QUESTIONS, HE WILL BE PRESUMED TO HAVE ELECTED TO PURSUE THE STATE
REMEDY, UNLESS HE MAKES CLEAR A PURPOSE TO RETURN TO THE FEDERAL COURT
WHEN THE STATE COURT HAS MADE ITS RULING.  I GATHER THAT, WITHOUT THAT
RESERVATION, THE RECORD WILL BE TAKEN TO MEAN THAT "HE VOLUNTARILY
LITIGATED HIS FEDERAL CLAIMS IN THE STATE COURTS."  OR, IF HE FORGETS
OR FAILS TO MAKE SUCH A RESERVATION, HE CAN STILL PRESERVE HIS RIGHT TO
RETURN TO THE FEDERAL COURT BY DOING WHAT THE COURT NOW SAYS IS
REQUIRED OF HIM BY WINDSOR.  FOR HE IS TOLD TODAY THAT INSTEAD OF
SUBMITTING HIS FEDERAL CLAIMS TO BE "LITIGATED," HE MAY SUBMIT HIS
STATE LAW QUESTIONS ONLY FOR CONSIDERATION "IN LIGHT OF" THE FEDERAL
QUESTIONS.  THOSE WHO READ THIS OPINION MAY HAVE ADEQUATE WARNING.  BUT
THIS OPINION, LIKE MOST, WILL BECOME AN OBSCURE ONE - LITTLE KNOWN TO
THE BAR.  LAWYERS DO NOT KEEP UP WITH ALL THE NUANCES OF COURT
OPINIONS, ESPECIALLY THOSE TOUCHING ON AS EXOTIC A RULE OF FEDERAL
PROCEDURE AS THE ONE WHICH WE EVOLVE TODAY.  I FEAR THEREFORE THAT THE
RULE WE ANNOUNCE TODAY WILL BE A VERITABLE TRAP. 

THE COURT RECOGNIZES THE VALUE TO THE LITIGANTS OF BEING IN THE
FEDERAL COURT.  AS IT SAYS, "THE BENEFIT OF A FEDERAL TRIAL COURT'S
ROLE IN CONSTRUCTING A RECORD AND MAKING FACT FINDINGS" IS
CONSIDERABLE.  ANTE, AT 416.  A LITIGANT TRAPPED IN STATE COURT
PROCEEDINGS MAY FIND HIMSELF VERITABLY ENCASED BY FINDINGS OF FACT
WHICH NO APPELLATE COURT MAY DISTURB.  THE VALUE OF THE INDEPENDENCE OF
FEDERAL JUDGES, AND THE VALUE OF AN ESCAPE FROM LOCAL PREJUDICES WHEN
FACT FINDINGS ARE MADE ARE CONSIDERABLE ONES.  YET UNDER THE RULE WE
ANNOUNCE TODAY, THOSE VALUES PROMISE TO BE LOST IN IMPORTANT AREAS OF
CIVIL RIGHTS. 

I MENTION THE TIME ELEMENT AS ONE OF THE EVILS SPUN BY THE PULLMAN
DOCTRINE.  TIME HAS A PARTICULARLY NOXIOUS EFFECT ON EXPLOSIVE CIVIL
RIGHTS QUESTIONS, WHERE THE PROBLEM ONLY FESTERS AS GRIEVANCES PILE
HIGH AND THE LAW TAKES ITS SLOW, EXPENSIVE PACE TO DECIDE IN YEARS WHAT
SHOULD BE DECIDED PROMPTLY. 

THE LATE JUDGE CHARLES E. CLARK MADE AN APT AND PERTINENT OBSERVATION
ON THE IMPACT OF THE PULLMAN DOCTRINE.  AT TIMES, HE SAID, "THE UPSHOT
INEVITABLY SEEMS TO BE A NEGATIVE DECISION OR, IN PLAIN LANGUAGE, A
DEFENDANT'S JUDGMENT."  (FN12)  DELAY WHICH THE PULLMAN DOCTRINE
SPONSORS, KEEPS THE STATUS QUO ENTRENCHED AND RENDERS "A DEFENDANT'S
JUDGMENT" EVEN IN THE FACE OF CONSTITUTIONAL REQUIREMENTS.  THESE EVILS
ARE ALL COMPOUNDED BY WHAT WE DO TODAY, MAKING IT LIKELY THAT LITIGANTS
SEEKING THE PROTECTION OF THE FEDERAL COURTS FOR ASSERTION OF THEIR
CIVIL RIGHTS (FN13) WILL BE GROUND DOWN SLOWLY BY THE PASSAGE OF TIME
AND THE EXPENDITURE OF MONEY IN STATE PROCEEDINGS, LEAVING THE ULTIMATE
REMEDY HERE, AT LEAST IN MANY CASES, AN ILLUSORY ONE. 

FN1  GOVERNMENT EMPLOYEES V. WINDSOR, 353 U.S. 364. 

FN2  SOME FEDERAL COURTS HAVE USED THE DOCTRINE TO SHUTTLE OVER TO
STATE COURTS CASES PROPERLY IN THE FEDERAL COURT YET NOT INVOLVING
CONSTITUTIONAL ISSUES DEPENDENT ON THE MEANING OF STATE LAW (SEE
MOTTOLESE V. KAUFMAN, 176 F.2D 301; BEIERSDORF & CO. V. MCGOHEY, 187
F.2D 14) - DECISIONS WHICH BALDLY DENY A SUITOR THE REMEDY GRANTED BY
CONGRESS BECAUSE IT IS NOT CONVENIENT TO THE DISTRICT JUDGE TO DECIDE
THE CASE. 

FN3  SEE S. REP. NO. 701, 72D CONG., 1ST SESS., PP. 2-4; H.R. REP.
NO. 1194, 73D CONG., 2D SESS., PP. 2-3; S. REP. NO. 125, 73D CONG., 1ST
SESS., PP. 3-9 ON THE JOHNSON ACT OF 1934, 28 U.S.C. SEC. 1342. 

FN4  SEE S. REP. NO. 1035, 75TH CONG., 1ST SESS., P. 2, ON THE TAX
INJUNCTION ACT OF 1937.  28 U.S.C. SEC. 1341. 

FN5  SEE TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118; 28 U.S.C.
SEC. 2283. 

FN6  SEE, E.G., DAY-BRITE LIGHTING, INC., V. MISSOURI, 342 U.S. 421;
GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490; FERGUSON V. SKRUPA, 372
U.S. 726. 

FN7  SEE NOTES 3, 4, AND 5, SUPRA. 

FN8  THIRTY-SIX STATES, PLUS PUERTO RICO AND THE VIRGIN ISLANDS, HAVE
ADOPTED THE UNIFORM DECLARATORY JUDGMENTS ACT.  SEE 9A UNIFORM L. ANN.
(1962 CUM. ANN. PT.), P. 9.  OTHER STATES HAVE SPECIAL DECLARATORY
JUDGMENT STATUTES RESTRICTED TO A LITIGATION OF A SPECIFIED ISSUE OR
ISSUES.  SEE I ANDERSON, ACTIONS FOR DECLARATORY JUDGMENTS (1959
SUPP.), SEC. 6. 

IN MERIDIAN V. SOUTHERN BELL T.&T. CO., 358 U.S. 639, IN WHICH THE
DISTRICT COURT WAS ORDERED TO STAY ITS HAND WHILE THE PARTIES REPAIRED
TO THE STATE COURT, THE STATE INVOLVED, MISSISSIPPI, LACKED A
DECLARATORY JUDGMENT PROCEDURE.  SEE IV MARTINDALE-HUBBELL (1963), P.
979.  A STATE COURT DETERMINATION WAS OBTAINED ONLY WHEN THE PARTIES
SWITCHED ROLES, WITH THE CITY - A DEFENDANT IN THE FEDERAL COURT
DECLARATORY JUDGMENT ACTION - SUING THE TELEPHONE COMPANY FOR
NONCOMPLIANCE WITH THE LAW ORIGINALLY CHALLENGED AS UNCONSTITUTIONAL. 
THE STATE ACTION WAS RESOLVED IN THE TELEPHONE COMPANY'S FAVOR. 
SOUTHERN BELL T.&T. CO. V. MERIDIAN, 241 MISS.  678, 131 SO. 2D 666. 

FN9  FLA. STAT. ANN., 1955, SEC. 25.031, PROVIDES: 

"THE SUPREME COURT OF THIS STATE MAY, BY RULE OF COURT, PROVIDE THAT,
WHEN IT SHALL APPEAR TO THE SUPREME COURT OF THE UNITED STATES, TO ANY
CIRCUIT COURT OF APPEALS OF THE UNITED STATES, OR TO THE COURT OF
APPEALS OF THE DISTRICT OF COLUMBIA, THAT THERE ARE INVOLVED IN ANY
PROCEEDING BEFORE IT QUESTIONS OR PROPOSITIONS OF THE LAWS OF THIS
STATE, WHICH ARE DETERMINATIVE OF THE SAID CAUSE, AND THERE ARE NO
CLEAR CONTROLLING PRECEDENTS IN THE DECISIONS OF THE SUPREME COURT OF
THIS STATE, SUCH FEDERAL APPELLATE COURT MAY CERTIFY SUCH QUESTIONS OR
PROPOSITIONS OF THE LAWS OF THIS STATE TO THE SUPREME COURT OF THIS
STATE FOR INSTRUCTIONS CONCERNING SUCH QUESTIONS OR PROPOSITIONS OF
STATE LAW, WHICH CERTIFICATE THE SUPREME COURT OF THIS STATE, BY
WRITTEN OPINION, MAY ANSWER." 

SEE KURLAND, TOWARD A CO-OPERATIVE JUDICIAL FEDERALISM, 24 F.R.D.
481, 489-490 (1959); NOTE, 73 HARV. L. REV. 1358, 1368 (1960). 

FN10  RULE 4.61 OF THE FLORIDA APPELLATE RULES PROVIDES: 

"WHEN IT SHALL APPEAR TO THE SUPREME COURT OF THE UNITED STATES, OR
TO ANY OF THE COURTS OF APPEAL OF THE UNITED STATES THAT THERE ARE
INVOLVED IN ANY PROCEEDING BEFORE IT QUESTIONS OR PROPOSITIONS OF LAW
OF THIS STATE WHICH ARE DETERMINATIVE OF SAID CAUSE AND THAT THERE ARE
NO CLEAR CONTROLLING PRECEDENTS IN THE DECISIONS OF THE SUPREME COURT
OF THIS STATE, SUCH FEDERAL APPELLATE COURT MAY CERTIFY SUCH QUESTIONS
OR PROPOSITIONS OF LAW OF THIS STATE TO THE SUPREME COURT OF FLORIDA
FOR INSTRUCTIONS CONCERNING SUCH QUESTIONS OR PROPOSITIONS OF STATE
LAW." 

FN11  AS RESPECTS CERTIFICATES FROM STATE COURTS ON CASES COMING
HERE, SEE HERB V. PITCAIRN, 324 U.S. 117, 325 U.S. 77; KING V. ORDER OF
TRAVELERS, 333 U.S. 153, 160; HART AND WECHSLER, THE FEDERAL COURTS AND
THE FEDERAL SYSTEM (1953), PP. 444-446. 

FN12  CLARK, THE LIMITS OF JUDICIAL OBJECTIVITY, 12 AM. U.L. REV. 1,
5 (1963). 

FN13  SEE WECHSLER, FEDERAL JURISDICTION AND THE REVISION OF THE
JUDICIAL CODE, 13 L. & CONT.  PROBLEMS, 216, 229-230 (1948) DISCUSSING
A PROPOSED CODIFICATION OF THE PULLMAN DOCTRINE WHEREBY THE FEDERAL
COURT WOULD RETAIN JURISDICTION ONLY IN LIMITED SITUATIONS: 

"THESE OBSERVATIONS CALL FOR QUALIFICATION IN ONE INSTANCE:  THE
RIGHTS OF ACTION SPECIALLY CONFERRED BY CONGRESS IN THE CIVIL RIGHTS
LAWS.  THERE CONGRESS HAS DECLARED THE HISTORIC JUDGMENT THAT WITHIN
THIS PRECIOUS AREA, OFTEN CALLING FOR A TRIAL BY JURY, THERE IS TO BE
NO SLIGHTEST RISK OF NULLIFICATION BY STATE PROCESS.  THE DANGER IS
UNHAPPILY NOT PAST.  IT WOULD BE MOVING IN THE WRONG DIRECTION TO
REDUCE THE JURISDICTION IN THIS FIELD - NOT BECAUSE THE INTEREST OF THE
STATE IS SMALLER IN SUCH CASES, BUT BECAUSE ITS INTEREST IS OUTWEIGHED
BY OTHER FACTORS OF THE HIGHEST NATIONAL CONCERN.  NEEDLESS TO SAY, TO
FORMULATE THE SCOPE OF THE EXCEPTION IS NO DRAFTING PROBLEM; ITS
MEASURE IS THE RIGHTS OF ACTION GIVEN BY THE CIVIL RIGHTS LAW."  ID.,
AT 230. 

MR. JUSTICE BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

I JOIN IN THE JUDGMENT AND IN THE OPINION INSOFAR AS THE COURT HOLDS
THAT THE DISTRICT COURT ERRED IN THE REASONS IT GAVE FOR DISMISSING
APPELLANTS' ACTION.  I AM OF THE OPINION HOWEVER, THAT THE DISMISSAL
SHOULD BE AFFIRMED ON THE GROUNDS RELIED UPON BY JUDGE J. SKELLY WRIGHT
SITTING ALONE IN THE DISTRICT COURT WHEN THE ACTION FIRST WAS BROUGHT:
THAT THE COMPLAINT FAILED TO STATE A SUBSTANTIAL FEDERAL QUESTION
WARRANTING EXERCISE OF JURISDICTION.  SEE HITCHOCK V. COLLENBERG, 140
F. SUPP. 894 (D.C.D. MD.)  AFF'D, 353 U.S. 919; CF. EX PARTE PORESKY,
290 U.S. 30.  COMPARE LOUISIANA STATE BOARD OF MEDICAL EXAMINERS V.
FIFE, 162 LA.  681, 111 SO. 58, AFF'D, 274 U.S. 720; DENT V. WEST
VIRGINIA, 129 U.S. 114.  SEE ALSO JUDGE WISDOM'S OPINIONS DISSENTING
FROM REVERSAL OF JUDGE WRIGHT'S RULING, 259 F.2D 626, 627 (C.A. 5TH
CIR.), AND 263 F.2D 661, 674 (C.A. 5TH CIR.).  ALTHOUGH A PETITION FOR
CERTIORARI TO REVIEW THE DECISION OF THE FIFTH CIRCUIT WAS DENIED, 359
U.S. 1012, ISSUES RAISED AT THAT STAGE OF THE LITIGATION WHICH REMAIN
DISPOSITIVE OF THE CASE ARE PROPERLY BEFORE US.  URIE V. THOMPSON, 337
U.S. 163. 
..END :













BRAZOSPORT SAVINGS & LOAN ASSOCIATION V. PHILLIPS 375 U.S. 438 


NO. 565.  DECIDED JANUARY 13, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  366 S.W.2D 929. 


BRAZOSPORT SAVINGS & LOAN ASSOCIATION ET AL. V. PHILLIPS ET AL. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















STICKLER V. OHIO 375 U.S. 438 


NO. 601.  DECIDED JANUARY 13, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  174 OHIO ST. 382, 189 N.E.2D 433. 


STICKLER V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BLAIKIE V. POWER, NEW YORK CITY BOARD OF ELECTIONS 375 U.S. 439 


NO. 617.  DECIDED JANUARY 13, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  13 N.Y.2D 134, 193
N.E.2D 55. 


BLAIKIE V. POWER ET AL., CONSTITUTING BOARD OF ELECTIONS, CITY OF NEW
YORK, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















PENNINGTON V. CORPUS CHRISTI 375 U.S. 439 


NO. 621.  DECIDED JANUARY 13, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  363 S.W.2D 502. 


PENNINGTON ET AL. V. CITY OF CORPUS CHRISTI ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, FOURTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















CAREY V. WESTINGHOUSE ELECTRIC CORP. 375 U.S. 261 


NO. 21.  ARGUED DECEMBER 11-12, 1963.  - DECIDED JANUARY 6, 1964.  - 11
N.Y.2D 452, 184 N.E.2D 298, REVERSED. 


PETITIONER UNION (IUE) AND RESPONDENT EMPLOYER ENTERED INTO A
COLLECTIVE BARGAINING AGREEMENT COVERING WORKERS AT SEVERAL PLANTS
INCLUDING ONE WHERE THE DISPUTE HERE INVOLVED OCCURRED.  THE AGREEMENT
STATES THAT THE EMPLOYER RECOGNIZES IUE AND ITS LOCALS AS EXCLUSIVE
BARGAINING REPRESENTATIVES FOR EACH OF THOSE UNITS FOR WHICH IUE OR ITS
LOCALS HAVE BEEN CERTIFIED BY THE NATIONAL LABOR RELATIONS BOARD AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE; AND THE AGREEMENT LISTS AMONG
THOSE UNITS FOR WHICH IUE HAS BEEN CERTIFIED A UNIT OF "ALL PRODUCTION
AND MAINTENANCE EMPLOYEES" AT THE PLANT WHERE THE CONTROVERSY AROSE,
"BUT EXCLUDING ALL SALARIED TECHNICAL  ... EMPLOYEES."  THE AGREEMENT
ALSO CONTAINS A GRIEVANCE PROCEDURE FOR THE USE OF ARBITRATION IN CASE
OF UNRESOLVED DISPUTES, INCLUDING THOSE INVOLVING THE "INTERPRETATION,
APPLICATION OR CLAIMED VIOLATION" OF THE AGREEMENT.  IUE FILED A
GRIEVANCE ASSERTING THAT CERTAIN EMPLOYEES IN THE ENGINEERING
LABORATORY AT THE PLANT IN QUESTION, REPRESENTED BY ANOTHER UNION WHICH
HAD BEEN CERTIFIED AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A
UNIT OF "ALL SALARIED, TECHNICAL" EMPLOYEES, EXCLUDING "ALL PRODUCTION
AND MAINTENANCE" EMPLOYEES, WERE PERFORMING PRODUCTION AND MAINTENANCE
WORK.  THE EMPLOYER REFUSED TO ARBITRATE ON THE GROUND THAT THE
CONTROVERSY PRESENTED A REPRESENTATION MATTER FOR THE NATIONAL LABOR
RELATIONS BOARD.  IUE PETITIONED A NEW YORK STATE COURT FOR AN ORDER
COMPELLING ARBITRATION.  HELD:  WHETHER THE DISPUTE BE CONSIDERED ONE
INVOLVING WORK ASSIGNMENT OR ONE CONCERNING REPRESENTATION, IT IS NOT
WITHIN THE EXCLUSIVE JURISDICTION OF THE NATIONAL LABOR RELATIONS
BOARD, AND THERE IS NO BARRIER TO USE OF THE ARBITRATION PROCEDURE. 
PP. 263-273. 

CAREY, PRESIDENT OF THE INTERNATIONAL UNION OF ELECTRICAL, RADIO &
MACHINE WORKERS, AFL-CIO, V. WESTINGHOUSE ELECTRIC CORP. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER UNION (IUE) AND RESPONDENT EMPLOYER (WESTINGHOUSE)
ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT COVERING WORKERS AT
SEVERAL PLANTS INCLUDING ONE WHERE THE PRESENT DISPUTE OCCURRED.  THE
AGREEMENT STATES THAT WESTINGHOUSE RECOGNIZES IUE AND ITS LOCALS AS
EXCLUSIVE BARGAINING REPRESENTATIVES FOR EACH OF THOSE UNITS FOR WHICH
IUE OR ITS LOCALS HAVE BEEN CERTIFIED BY THE NATIONAL LABOR RELATIONS
BOARD AS THE EXCLUSIVE BARGAINING REPRESENTATIVE; AND THE AGREEMENT
LISTS AMONG THOSE UNITS FOR WHICH IUE HAS BEEN CERTIFIED A UNIT OF "ALL
PRODUCTION AND MAINTENANCE EMPLOYEES" AT THE PLANT WHERE THE
CONTROVERSY AROSE, "BUT EXCLUDING ALL SALARIED TECHNICAL  ...
EMPLOYEES."  THE AGREEMENT ALSO CONTAINS A GRIEVANCE PROCEDURE FOR THE
USE OF ARBITRATION IN CASE OF UNRESOLVED DISPUTES, INCLUDING THOSE
INVOLVING THE "INTERPRETATION, APPLICATION OR CLAIMED VIOLATION" OF THE
AGREEMENT. 

IUE FILED A GRIEVANCE ASSERTING THAT CERTAIN EMPLOYEES IN THE
ENGINEERING LABORATORY AT THE PLANT IN QUESTION, REPRESENTED BY ANOTHER
UNION, FEDERATION, WHICH HAD BEEN CERTIFIED AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR A UNIT OF "ALL SALARIED, TECHNICAL" EMPLOYEES,
EXCLUDING "ALL PRODUCTION AND MAINTENANCE" EMPLOYEES, WERE PERFORMING
PRODUCTION AND MAINTENANCE WORK.  WESTINGHOUSE REFUSED TO ARBITRATE ON
THE GROUND THAT THE CONTROVERSY PRESENTED A REPRESENTATION MATTER FOR
THE NATIONAL LABOR RELATIONS BOARD.  IUE PETITIONED THE SUPREME COURT
OF NEW YORK FOR AN ORDER COMPELLING ARBITRATION.  THAT COURT REFUSED. 
THE APPELLATE DIVISION AFFIRMED, ONE JUDGE DISSENTING, 15 APP. DIV. 2D
7, 221 N.Y.S.2D 303.  THE COURT OF APPEALS AFFIRMED, ONE JUDGE
DISSENTING, HOLDING THAT THE MATTER WAS WITHIN THE EXCLUSIVE
JURISDICTION OF THE BOARD SINCE IT INVOLVED A DEFINITION OF BARGAINING
UNITS.  11 N.Y.2D 452, 230 N.Y.S.2D 703.  THE CASE IS HERE ON
CERTIORARI.  372 U.S. 957. 

WE HAVE HERE A SO-CALLED "JURISDICTIONAL" DISPUTE INVOLVING TWO
UNIONS AND THE EMPLOYER.  BUT THE TERM "JURISDICTIONAL" IS NOT A WORD
OF A SINGLE MEANING.  IN THE SETTING OF THE PRESENT CASE THIS
"JURISDICTIONAL" DISPUTE COULD BE ONE OF TWO DIFFERENT, THOUGH RELATED,
SPECIES:  EITHER - (1) A CONTROVERSY AS TO WHETHER CERTAIN WORK SHOULD
BE PERFORMED BY WORKERS IN ONE BARGAINING UNIT OR THOSE IN ANOTHER; OR
(2) A CONTROVERSY AS TO WHICH UNION SHOULD REPRESENT THE EMPLOYEES
DOING PARTICULAR WORK.  IF THIS CONTROVERSY IS CONSIDERED TO BE THE
FORMER, THE NATIONAL LABOR RELATIONS ACT (61 STAT. 136, 73 STAT. 519,
29 U.S.C. SEC. 151 ET SEQ.) DOES NOT PURPORT TO COVER ALL PHASES AND
STAGES OF IT.  WHILE SEC. 8(B)(4)(D) MAKES IT AN UNFAIR LABOR PRACTICE
FOR A UNION TO STRIKE TO GET AN EMPLOYER TO ASSIGN WORK TO A PARTICULAR
GROUP OF EMPLOYEES RATHER THAN TO ANOTHER, (FN1) THE ACT DOES NOT DEAL
WITH THE CONTROVERSY ANTERIOR TO A STRIKE NOR PROVIDE ANY MACHINERY FOR
RESOLVING SUCH A DISPUTE ABSENT A STRIKE.  THE ACT AND ITS REMEDIES FOR
"JURISDICTIONAL" CONTROVERSIES OF THAT NATURE COME INTO PLAY ONLY BY A
STRIKE OR A THREAT OF A STRIKE.  SUCH CONDUCT GIVES THE BOARD AUTHORITY
UNDER SEC. 10(K) TO RESOLVE THE DISPUTE.  (FN2) 

ARE WE TO ASSUME THAT THE REGULATORY SCHEME CONTAINS A HIATUS,
ALLOWING NO RECOURSE TO ARBITRATION OVER WORK ASSIGNMENTS BETWEEN TWO
UNIONS BUT FORCING THE CONTROVERSY INTO THE STRIKE STAGE BEFORE A
REMEDY BEFORE THE BOARD IS AVAILABLE?  THE BOARD, AS ADMONISHED BY SEC.
10(K), (FN3) HAS OFTEN GIVEN EFFECT TO PRIVATE AGREEMENTS TO SETTLE
DISPUTES OF THIS CHARACTER; (FN4) AND THAT IS IN ACCORD WITH THE
PURPOSE AS STATED EVEN BY THE MINORITY SPOKESMAN IN CONGRESS (FN5) -
"THAT FULL OPPORTUNITY IS GIVEN THE PARTIES TO REACH A VOLUNTARY
ACCOMMODATION WITHOUT GOVERNMENTAL INTERVENTION IF THEY SO DESIRE."  93
CONG. REC. 4035; 2 LEG.  HIST.  L.M.R.A. (1947) 1046.  AND SEE LABOR
BOARD V. RADIO ENGINEERS, 364 U.S. 573, 577. 

AS JUDGE FULD, DISSENTING BELOW, SAID:  "THE UNDERLYING OBJECTIVE OF
THE NATIONAL LABOR LAWS IS TO PROMOTE COLLECTIVE BARGAINING AGREEMENTS
AND TO HELP GIVE SUBSTANCE TO SUCH AGREEMENTS THROUGH THE ARBITRATION
PROCESS."  11 N.Y.2D 452, 458, 230 N.Y.S.2D 703, 706. 

GRIEVANCE ARBITRATION IS ONE METHOD OF SETTLING DISPUTES OVER WORK
ASSIGNMENTS; AND IT IS COMMONLY USED, WE ARE TOLD.  TO BE SURE, ONLY
ONE OF THE TWO UNIONS INVOLVED IN THE CONTROVERSY HAS MOVED THE STATE
COURTS TO COMPEL ARBITRATION.  SO UNLESS THE OTHER UNION INTERVENES, AN
ADJUDICATION OF THE ARBITER MIGHT NOT PUT AN END TO THE DISPUTE.  YET
THE ARBITRATION MAY AS A PRACTICAL MATTER END THE CONTROVERSY OR PUT
INTO MOVEMENT FORCES THAT WILL RESOLVE IT.  THE CASE IN ITS PRESENT
POSTURE IS ANALOGOUS TO WHITEHOUSE V. ILLINOIS CENTRAL R. CO., 349 U.S.
366, WHERE A RAILROAD AND TWO UNIONS WERE DISPUTING A JURISDICTIONAL
MATTER, WHEN THE NATIONAL RAILROAD ADJUSTMENT BOARD SERVED NOTICE ON
THE RAILROAD AND ONE UNION OF ITS ASSUMPTION OF JURISDICTION.  THE
RAILROAD, NOT BEING ABLE TO HAVE NOTICE SERVED ON THE OTHER UNION, SUED
IN THE COURTS FOR RELIEF.  WE ADOPTED A HANDS-OFF POLICY, SAYING,
"RAILROAD'S RESORT TO THE COURTS HAS PRECEDED ANY AWARD, AND ONE MAY BE
RENDERED WHICH COULD OCCASION NO POSSIBLE INJURY TO IT."  ID., AT 373. 

SINCE SEC. 10(K) NOT ONLY TOLERATES BUT ACTIVELY ENCOURAGES VOLUNTARY
SETTLEMENTS OF WORK ASSIGNMENT CONTROVERSIES BETWEEN UNIONS, WE
CONCLUDE THAT GRIEVANCE PROCEDURES PURSUED TO ARBITRATION FURTHER THE
POLICIES OF THE ACT. 

WHAT WE HAVE SAID SO FAR TREATS THE CASE AS IF THE GRIEVANCE INVOLVES
ONLY A WORK ASSIGNMENT DISPUTE.  IF, HOWEVER, THE CONTROVERSY BE A
REPRESENTATIONAL ONE, INVOLVING THE DUTY OF AN EMPLOYER TO BARGAIN
COLLECTIVELY WITH REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED IN SEC.
8(A)(5), (FN6) FURTHER CONSIDERATIONS ARE NECESSARY.  SUCH A CHARGE,
MADE BY A UNION AGAINST THE EMPLOYER, WOULD, IF PROVED, BE AN UNFAIR
LABOR PRACTICE, AS SEC. 8(A)(5) EXPRESSLY STATES.  OR THE UNIONS
INSTEAD OF FILING SUCH A CHARGE MIGHT PETITION THE BOARD UNDER SEC.
9(C)(1) TO OBTAIN A CLARIFICATION OF THE CERTIFICATES THEY ALREADY HAVE
FROM THE BOARD; AND THE EMPLOYER MIGHT DO THE SAME. 

THUS IN KENNAMETAL, INC., 132 N.L.R.B. 194, A UNION WAS CERTIFIED TO
REPRESENT "PRODUCTION AND MAINTENANCE EMPLOYEES" EXCLUDING, AMONG
OTHERS, "TECHNICAL" AND "LABORATORY" EMPLOYEES.  IT FILED A MOTION FOR
CLARIFICATION OF ITS CERTIFICATES, CONTENDING THAT CERTAIN EMPLOYEES IN
THE LABORATORY WERE "AN ACCRETION TO THE EXISTING CERTIFIED PRODUCTION
AND MAINTENANCE UNIT AND ARE NOT EMBRACED IN THE CLASSIFICATION OF
LABORATORY EMPLOYEES EXCLUDED FROM THE ESTABLISHED UNIT."  ID., AT 196
197.  THE EMPLOYER CONTENDED THAT THE LABORATORY OPERATION IN QUESTION
WAS STILL IN THE RESEARCH AND DEVELOPMENT STAGE.  THE BOARD FOUND THAT
SOME OF THE EMPLOYEES IN QUESTION WERE PERFORMING PRODUCTION RATHER
THAN EXPERIMENTAL LABORATORY WORK AND CONSTITUTED AN ACCRETION TO THE
EXISTING UNIT; AND IT CLARIFIED THE CERTIFICATION BY SPECIFICALLY
INCLUDING THOSE EMPLOYEES IN THE PRODUCTION AND MAINTENANCE UNIT.  WHAT
A UNION CAN DO, AN EMPLOYER CAN DO, AS EVIDENCED BY NUMEROUS BOARD
DECISIONS.  SEE WESTERN CARTRIDGE CO., 134 N.L.R.B. 67; BLAW-KNOX CO.,
135 N.L.R.B. 862; LUMBER & MILLWORK INDUSTRY LABOR COMMITTEE, 136
N.L.R.B. 1083. 

IF THIS IS TRULY A REPRESENTATION CASE, EITHER IUE OR WESTINGHOUSE
CAN MOVE TO HAVE THE CERTIFICATE CLARIFIED.  BUT THE EXISTENCE OF A
REMEDY BEFORE THE BOARD FOR AN UNFAIR LABOR PRACTICE DOES NOT BAR
INDIVIDUAL EMPLOYEES FROM SEEKING DAMAGES FOR BREACH OF A COLLECTIVE
BARGAINING AGREEMENT IN A STATE COURT, AS WE HELD IN SMITH V. EVENING
NEWS ASSN., 371 U.S. 195.  WE THINK THE SAME POLICY CONSIDERATIONS ARE
APPLICABLE HERE; AND THAT A SUIT EITHER IN THE FEDERAL COURTS, AS
PROVIDED BY SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947
(61 STAT. 156, 29 U.S.C. SEC. 185(A); TEXTILE WORKERS V. LINCOLN MILLS,
353 U.S. 448), OR BEFORE SUCH STATE TRIBUNALS AS ARE AUTHORIZED TO ACT
(CHARLES DOWD BOX CO. V. COURTNEY, 368 U.S. 502; TEAMSTERS LOCAL V.
LUCAS FLOUR CO., 369 U.S. 95) IS PROPER, EVEN THOUGH AN ALTERNATIVE
REMEDY BEFORE THE BOARD IS AVAILABLE, WHICH, IF INVOKED BY THE
EMPLOYER, WILL PROTECT HIM. 

THE POLICY CONSIDERATIONS BEHIND SMITH V. EVENING NEWS ASSN., SUPRA,
ARE HIGHLIGHTED HERE BY REASON OF THE BLURRED LINE THAT OFTEN EXISTS
BETWEEN WORK ASSIGNMENT DISPUTES AND CONTROVERSIES OVER WHICH OF TWO OR
MORE UNIONS IS THE APPROPRIATE BARGAINING UNIT.  IT MAY BE CLAIMED THAT
A AND B, TO WHOM WORK IS ASSIGNED AS "TECHNICAL" EMPLOYEES, ARE IN FACT
"PRODUCTION AND MAINTENANCE" EMPLOYEES; AND IF THAT CHARGE IS MADE AND
SUSTAINED THE BOARD, UNDER THE DECISIONS ALREADY NOTED, CLARIFIES THE
CERTIFICATE.  BUT IUE MAY CLAIM THAT WHEN THE WORK WAS ASSIGNED TO A
AND B, THE COLLECTIVE AGREEMENT WAS VIOLATED BECAUSE "PRODUCTION AND
MAINTENANCE" EMPLOYEES, NOT "TECHNICAL" EMPLOYEES, WERE ENTITLED TO IT.
AS NOTED, THE BOARD CLARIFIES CERTIFICATES WHERE A CERTIFIED UNION
SEEKS TO REPRESENT ADDITIONAL EMPLOYEES; BUT IT WILL NOT ENTERTAIN A
MOTION TO CLARIFY A CERTIFICATE WHERE THE UNION MERELY SEEKS ADDITIONAL
WORK FOR EMPLOYEES ALREADY WITHIN ITS UNIT.  SEE GENERAL ANILINE & FILM
CORP., 89 N.L.R.B. 467; AMERICAN BROADCASTING CO., 112 N.L.R.B. 605;
EMPLOYING PLASTERERS ASSN., 118 N.L.R.B. 17.  THE BOARD'S DESCRIPTION
OF THE LINE BETWEEN THE TWO TYPES OF CASES IS AS FOLLOWS: 

"...  A BOARD CERTIFICATION IN A REPRESENTATION PROCEEDING IS NOT A
JURISDICTIONAL AWARD; IT IS MERELY A DETERMINATION THAT A MAJORITY OF
THE EMPLOYEES IN AN APPROPRIATE UNIT HAVE SELECTED A PARTICULAR LABOR
ORGANIZATION AS THEIR REPRESENTATIVE FOR PURPOSES OF COLLECTIVE
BARGAINING.  IT IS TRUE THAT SUCH CERTIFICATION PRESUPPOSES A
DETERMINATION THAT THE GROUP OF EMPLOYEES INVOLVED CONSTITUTE AN
APPROPRIATE UNIT FOR COLLECTIVE BARGAINING PURPOSES, AND THAT IN MAKING
SUCH DETERMINATION THE BOARD CONSIDERS THE GENERAL NATURE OF THE DUTIES
AND WORK TASKS OF SUCH EMPLOYEES.   HOWEVER, UNLIKE A JURISDICTIONAL
AWARD, THIS DETERMINATION BY THE BOARD DOES NOT FREEZE THE DUTIES OR
WORK TASKS OF THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE.  THUS, THE
BOARD'S UNIT FINDING DOES NOT PER SE PRECLUDE THE EMPLOYER FROM ADDING
TO, OR SUBTRACTING FROM, THE EMPLOYEES' WORK ASSIGNMENTS.  WHILE THAT
FINDING MAY BE DETERMINED BY, IT DOES NOT DETERMINE, JOB CONTENT; NOR
DOES IT SIGNIFY APPROVAL, IN ANY RESPECT, OF ANY WORK TASK CLAIMS WHICH
THE CERTIFIED UNION MAY HAVE MADE BEFORE THIS BOARD OR ELSEWHERE." 
PLUMBING CONTRACTORS ASSN., 93 N.L.R.B. 1081, 1087. 

AS THE BOARD'S DECISIONS INDICATE, DISPUTES ARE OFTEN DIFFICULT TO
CLASSIFY.  IN THE PRESENT CASE THE SOLICITOR GENERAL, WHO APPEARS
AMICUS, BELIEVES THE CONTROVERSY IS ESSENTIALLY A REPRESENTATIONAL
ONE.  SO DOES WESTINGHOUSE.  IUE ON THE OTHER HAND CLAIMS IT IS A WORK
ASSIGNMENT DISPUTE.  EVEN IF IT IS IN FORM A REPRESENTATION PROBLEM, IN
SUBSTANCE IT MAY INVOLVE PROBLEMS OF SENIORITY WHEN LAYOFFS OCCUR (SEE
SOVERN, SECTION 301 AND THE PRIMARY JURISDICTION OF THE NLRB, 76 HARV.
L. REV. 529, 574-575 (1963) OR OTHER ASPECTS OF WORK ASSIGNMENT
DISPUTES.  IF THAT IS TRUE, THERE IS WORK FOR THE ARBITER WHATEVER THE
BOARD MAY DECIDE. 

IF BY THE TIME THE DISPUTE REACHES THE BOARD, ARBITRATION HAS ALREADY
TAKEN PLACE, THE BOARD SHOWS DEFERENCE TO THE ARBITRAL AWARD, (FN7)
PROVIDED THE PROCEDURE WAS A FAIR ONE AND THE RESULTS WERE NOT
REPUGNANT TO THE ACT.  (FN8)  AS THE BOARD RECENTLY STATED: 

"THERE IS NO QUESTION THAT THE BOARD IS NOT PRECLUDED FROM
ADJUDICATING UNFAIR LABOR PRACTICE CHARGES EVEN THOUGH THEY MIGHT HAVE
BEEN THE SUBJECT OF AN ARBITRATION PROCEEDING AND AWARD.  SECTION 10(A)
OF THE ACT EXPRESSLY MAKES THIS PLAIN, AND THE COURTS HAVE UNIFORMLY SO
HELD.  HOWEVER, IT IS EQUALLY WELL ESTABLISHED THAT THE BOARD HAS
CONSIDERABLE DISCRETION TO RESPECT AN ARBITRATION AWARD AND DECLINE TO
EXERCISE ITS AUTHORITY OVER ALLEGED UNFAIR LABOR PRACTICES IF TO DO SO
WILL SERVE THE FUNDAMENTAL AIMS OF THE ACT. 

"THE ACT, AS HAS REPEATEDLY BEEN STATED, IS PRIMARILY DESIGNED TO
PROMOTE INDUSTRIAL PEACE AND STABILITY BY ENCOURAGING THE PRACTICE AND
PROCEDURE OF COLLECTIVE BARGAINING.  EXPERIENCE HAS DEMONSTRATED THAT
COLLECTIVE-BARGAINING AGREEMENTS THAT PROVIDE FOR FINAL AND BINDING
ARBITRATION OF GREIVANCE AND DISPUTES ARISING THEREUNDER, 'AS A
SUBSTITUTE FOR INDUSTRIAL STRIFE,' CONTRIBUTE SIGNIFICANTLY TO THE
ATTAINMENT OF THIS STATUTORY OBJECTIVE."  INTERNATIONAL HARVESTER CO.,
138 N.L.R.B. 923, 925-926. 

THUS THE WEIGHT OF THE ARBITRATION AWARD IS LIKELY TO BE
CONSIDERABLE, IF THE BOARD IS LATER REQUIRED TO RULE ON PHASES OF THE
SAME DISPUTE.  THE BOARD'S ACTION AND THE AWARDS OF ARBITERS ARE AT
TIMES CLOSELY BRIGADED.  THUS WHERE GRIEVANCE PROCEEDINGS ARE PENDING
BEFORE AN ARBITER, THE BOARD DEFERS DECISION ON THE ELIGIBILITY OF
DISCHARGED EMPLOYEES TO VOTE IN A REPRESENTATION CASE, UNTIL THE AWARDS
ARE MADE.  SEE PACIFIC TILE & PORCELAIN CO., 137 N.L.R.B. 1358, 1365
1367, OVERRULING DURA STEEL PRODUCTS CO., 111 N.L.R.B. 590.  SEE 137
N.L.R.B., P. 1365, N. 11.    SHOULD THE BOARD DISAGREE WITH THE
ARBITER, BY RULING, FOR EXAMPLE, THAT THE EMPLOYEES INVOLVED IN THE
CONTROVERSY ARE MEMBERS OF ONE BARGAINING UNIT OR ANOTHER, THE BOARD'S
RULING WOULD, OF COURSE, TAKE PRECEDENCE; AND IF THE EMPLOYER'S ACTION
HAD BEEN IN ACCORD WITH THAT RULING, IT WOULD NOT BE LIABLE FOR DAMAGES
UNDER SEC. 301.  BUT THAT IS NOT PECULIAR TO THE PRESENT TYPE OF
CONTROVERSY.  ARBITRAL AWARDS CONSTRUING A SENIORITY PROVISION (CAREY
V. GENERAL ELECTRIC CO., 315 F.2D 499, 509-510), OR AWARDS CONCERNING
UNFAIR LABOR PRACTICES, MAY LATER END UP IN CONFLICT WITH BOARD
RULINGS.  SEE INTERNATIONAL ASSOCIATION OF MACHINISTS, 116 N.L.R.B.
645; MONSANTO CHEMICAL CO., 97 N.L.R.B. 517.  YET, AS WE HELD IN SMITH
V. EVENING NEWS ASSN., SUPRA, THE POSSIBILITY OF CONFLICT IS NO BARRIER
TO RESORT TO A TRIBUNAL OTHER THAN THE BOARD. 

HOWEVER THE DISPUTE BE CONSIDERED - WHETHER ONE INVOLVING WORK
ASSIGNMENT OR ONE CONCERNING REPRESENTATION - WE SEE NO BARRIER TO USE
OF THE ARBITRATION PROCEDURE.  IF IT IS A WORK ASSIGNMENT DISPUTE,
ARBITRATION CONVENIENTLY FILLS A GAP AND AVOIDS THE NECESSITY OF A
STRIKE TO BRING THE MATTER TO THE BOARD.  IF IT IS A REPRESENTATION
MATTER, RESORT TO ARBITRATION MAY HAVE A PERVASIVE, CURATIVE EFFECT
EVEN THOUGH ONE UNION IS NOT A PARTY. 

BY ALLOWING THE DISPUTE TO GO TO ARBITRATION ITS FRAGMENTATION IS
AVOIDED TO A SUBSTANTIAL EXTENT; AND THOSE CONCILIATORY MEASURES WHICH
CONGRESS DEEMED VITAL TO "INDUSTRIAL PEACE" (TEXTILE WORKERS V. LINCOLN
MILLS, SUPRA, AT 455) AND WHICH MAY BE DISPOSITIVE OF THE ENTIRE
DISPUTE, ARE ENCOURAGED.   THE SUPERIOR AUTHORITY OF THE BOARD MAY BE
INVOKED AT ANY TIME.  MEANWHILE THE THERAPY OF ARBITRATION IS BROUGHT
TO BEAR IN A COMPLICATED AND TROUBLED AREA.  REVERSED. 

FN1  SEC. 8(B)(4)(D): 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS
AGENTS: 

"(4)(I) TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE
OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM
ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY PERSON
ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE IN
EITHER CASE AN OBJECT THEREOF IS: 

 *         *         *         *         * 

"(D) FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE,
CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION
OR IN ANOTHER TRADE, CRAFT, OR CLASS, UNLESS SUCH EMPLOYER IS FAILING
TO CONFORM TO AN ORDER OR CERTIFICATION OF THE BOARD DETERMINING THE
BARGAINING REPRESENTATIVE FOR EMPLOYEES PERFORMING SUCH WORK."  29
U.S.C. (SUPP. IV) SEC. 158(B)(4)(D). 

FN2  SECTION 10(K) PROVIDES: 

"WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN AN UNFAIR
LABOR PRACTICE WITHIN THE MEANING OF PARAGRAPH (4)(D) OF SECTION 8(B),
THE BOARD IS EMPOWERED AND DIRECTED TO HEAR AND DETERMINE THE DISPUTE
OUT OF WHICH SUCH UNFAIR LABOR PRACTICE SHALL HAVE ARISEN, UNLESS,
WITHIN TEN DAYS AFTER NOTICE THAT SUCH CHARGE HAS BEEN FILED, THE
PARTIES TO SUCH DISPUTE SUBMIT TO THE BOARD SATISFACTORY EVIDENCE THAT
THEY HAVE ADJUSTED, OR AGREED UPON METHODS FOR THE VOLUNTARY ADJUSTMENT
OF, THE DISPUTE.  UPON COMPLIANCE BY THE PARTIES TO THE DISPUTE WITH
THE DECISION OF THE BOARD OR UPON SUCH VOLUNTARY ADJUSTMENT OF THE
DISPUTE, SUCH CHARGE SHALL BE DISMISSED."  29 U.S.C. SEC. 160(K). 

FN3  SECTION 10(K), SUPRA, NOTE 2, PROVIDES THAT THE BOARD SHALL
DETERMINE THE DISPUTE, "  ... UNLESS  ...  THE PARTIES TO SUCH DISPUTE
SUBMIT TO THE BOARD SATISFACTORY EVIDENCE THAT THEY HAVE ADJUSTED, OR
AGREED UPON METHODS FOR THE VOLUNTARY ADJUSTMENT OF, THE DISPUTE." 

FN4  SEE UNITED BROTHERHOOD OF CARPENTERS, 96 N.L.R.B. 1045; WOOD,
WIRE & METAL LATHERS UNION, 119 N.L.R.B. 1345; MILLWRIGHTS LOCAL 1102,
121 N.L.R.B. 101, 106-107; IRONWORKERS LOCAL NO. 708, 137 N.L.R.B.
1753, 1757.  SECTION 201 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947
DECLARES THE NATIONAL POLICY TO BE THE USE OF GOVERNMENTAL FACILITIES
FOR CONCILIATION, MEDIATION, AND VOLUNTARY ARBITRATION OF DISPUTES
BETWEEN EMPLOYERS AND EMPLOYEES.  61 STAT. 152, 29 U.S.C. SEC. 171(B). 

"FINAL ADJUSTMENT BY A METHOD AGREED UPON BY THE PARTIES IS HEREBY
DECLARED TO BE THE DESIRABLE METHOD FOR SETTLEMENT OF GRIEVANCE
DISPUTES ARISING OVER THE APPLICATION OR INTERPRETATION OF AN EXISTING
COLLECTIVE-BARGAINING AGREEMENT.  THE SERVICE IS DIRECTED TO MAKE ITS
CONCILIATION AND MEDIATION SERVICES AVAILABLE IN THE SETTLEMENT OF SUCH
GRIEVANCE DISPUTES ONLY AS A LAST RESORT AND IN EXCEPTIONAL CASES."  61
STAT. 154, 29 U.S.C. SEC. 173(D). 

FN5  SENATOR MURRAY OF MONTANA.  AND SEE S. REP. NO. 105, 80TH CONG.,
1ST SESS., P. 27, 1 LEG.  HIST. L.M.R.A. (1947) 433. 

FN6  SECTION 8(A)(5) PROVIDES, "IT SHALL BE AN UNFAIR LABOR PRACTICE
FOR AN EMPLOYER -  ...  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE
REPRESENTATIVES OF HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION
9(A)."  29 U.S.C. SEC. 158(A)(5). 

MAJORITY OF EMPLOYEES "IN A UNIT APPROPRIATE" FOR COLLECTIVE
BARGAINING.  29 U.S.C. SEC. 159(A).  SECTION 9(B) GIVES THE BOARD
AUTHORITY TO DETERMINE WHAT UNIT IS THE APPROPRIATE ONE - "THE EMPLOYER
UNIT, CRAFT UNIT, PLANT UNIT, OR SUBDIVISION THEREOF."  29 U.S.C. SEC.
159(B). 


"WHENEVER A PETITION SHALL HAVE BEEN FILED, IN ACCORDANCE WITH SUCH
REGULATIONS AS MAY BE PRESCRIBED BY THE BOARD: 

"(A)  BY AN EMPLOYEE OR GROUP OF EMPLOYEES OR ANY INDIVIDUAL OR LABOR
ORGANIZATION ACTING IN THEIR BEHALF ALLEGING THAT A SUBSTANTIAL NUMBER
OF EMPLOYEES (I) WISH TO BE REPRESENTED FOR COLLECTIVE BARGAINING AND
THAT THEIR EMPLOYER DECLINES TO RECOGNIZE THEIR REPRESENTATIVE AS THE
REPRESENTATIVE DEFINED IN SECTION 9(A), OR (II) ASSERT THAT THE
INDIVIDUAL OR LABOR ORGANIZATION, WHICH HAS BEEN CERTIFIED OR IS BEING
CURRENTLY RECOGNIZED BY THEIR EMPLOYER AS THE BARGAINING
REPRESENTATIVE, IS NO LONGER A REPRESENTATIVE AS DEFINED IN SECTION
9(A); OR: 

"(B)  BY AN EMPLOYER, ALLEGING THAT ONE OR MORE INDIVIDUALS OR LABOR
ORGANIZATIONS HAVE PRESENTED TO HIM A CLAIM TO BE RECOGNIZED AS THE
REPRESENTATIVE DEFINED IN SECTION 9(A); THE BOARD SHALL INVESTIGATE
SUCH PETITION AND IF IT HAS REASONABLE CAUSE TO BELIEVE THAT A QUESTION
OF REPRESENTATION AFFECTING COMMERCE EXISTS SHALL PROVIDE FOR AN
APPROPRIATE HEARING UPON DUE NOTICE.  SUCH HEARING MAY BE CONDUCTED BY
AN OFFICER OR EMPLOYEE OF THE REGIONAL OFFICE, WHO SHALL NOT MAKE ANY
RECOMMENDATIONS WITH RESPECT THERETO.  IF THE BOARD FINDS UPON THE
RECORD OF SUCH HEARING THAT SUCH A QUESTION OF REPRESENTATION EXISTS,
IT SHALL DIRECT AN ELECTION BY SECRET BALLOT AND SHALL CERTIFY THE
RESULTS THEREOF."  29 U.S.C. SEC. 159(C)(1). 

FN7  SEE, E.G., RALEY'S, INC., 143 N.L.R.B. 256, 258-259: 

"IN THE RECENTLY DECIDED INTERNATIONAL HARVESTER COMPANY CASE, A
MAJORITY OF THE BOARD INDICATED THAT IT WOULD GIVE 'HOSPITABLE
ACCEPTANCE TO THE ARBITRAL PROCESS' IN ORDER 'TO PROMOTE INDUSTRIAL
PEACE AND STABILITY BY ENCOURAGING THE PRACTICE AND PROCEDURE OF
COLLECTIVE BARGAINING.'  RELYING ON VARIOUS STATUTORY PROVISIONS,
PARTICULARLY SECTION 203(D) OF THE LABOR-MANAGEMENT RELATIONS ACT,
1947, AND ON DECISIONS OF THE UNITED STATES SUPREME COURT WHICH
RECOGNIZE ARBITRATION AS 'AN INSTRUMENT OF NATIONAL LABOR POLICY FOR
COMPOSING CONTRACTUAL DIFFERENCES,' THE BOARD CONCLUDED THAT IT WOULD
WITHHOLD ITS UNDOUBTED AUTHORITY TO ADJUDICATE UNFAIR LABOR PRACTICE
CHARGES AND GIVE EFFECT TO ARBITRATION AWARDS INVOLVING THE SAME
SUBJECT MATTER 'UNLESS IT CLEARLY APPEARS THAT THE ARBITRATION
PROCEEDINGS WERE TAINTED BY FRAUD, COLLUSION, OR SERIOUS PROCEDURAL
IRREGULARITIES OR THAT THE AWARD WAS CLEARLY REPUGNANT TO THE PURPOSES
AND POLICIES OF THE ACT.'  WHILE IT IS TRUE THAT INTERNATIONAL
HARVESTER, AS WELL AS OTHER CASES IN WHICH THE BOARD HONORED
ARBITRATION AWARDS, INVOLVED UNFAIR LABOR PRACTICE PROCEEDINGS, WE
BELIEVE THAT THE SAME CONSIDERATIONS WHICH MOVED THE BOARD TO HONOR
ARBITRATION AWARDS IN UNFAIR LABOR PRACTICE CASES ARE EQUALLY
PERSUASIVE TO A SIMILAR ACCEPTANCE OF THE ARBITRAL PROCESS IN A
REPRESENTATION PROCEEDING SUCH AS THE INSTANT ONE.  THUS, WHERE, AS
HERE, A QUESTION OF CONTRACT INTERPRETATION IS IN ISSUE, AND THE
PARTIES THERETO HAVE SET UP IN THEIR AGREEMENT ARBITRATION MACHINERY
FOR THE SETTLEMENT OF DISPUTES ARISING UNDER THE CONTRACT, AND AN AWARD
HAS ALREADY BEEN RENDERED WHICH MEETS BOARD REQUIREMENTS APPLICABLE TO
ARBITRATION AWARDS, WE THINK THAT IT WOULD FURTHER THE UNDERLYING
OBJECTIVES OF THE ACT TO PROMOTE INDUSTRIAL PEACE AND STABILITY TO GIVE
EFFECT THERETO.  IT IS TRUE, OF COURSE, THAT UNDER SECTION 9 OF THE ACT
THE BOARD IS EMPOWERED TO DECIDE QUESTIONS CONCERNING REPRESENTATION. 
HOWEVER, THIS AUTHORITY TO DECIDE QUESTIONS CONCERNING REPRESENTATION
DOES NOT PRECLUDE THE BOARD IN A PROPER CASE FROM CONSIDERING AN
ARBITRATION AWARD IN DETERMINING WHETHER SUCH A QUESTION EXISTS." 

FN8  MONSANTO CHEMICAL CO., 97 N.L.R.B. 517; WERTHEIMER STORES CORP.,
107 N.L.R.B. 1434. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION WITH A BRIEF COMMENT.  AS IS RECOGNIZED BY
ALL, NEITHER POSITION IN THIS CASE IS WITHOUT ITS DIFFICULTIES. 
LACKING A CLEAR-CUT COMMAND IN THE STATUTE ITSELF, THE CHOICE IN
SUBSTANCE LIES BETWEEN A COURSE WHICH WOULD ALTOGETHER PRECLUDE ANY
ATTEMPT AT RESOLVING DISPUTES OF THIS KIND BY ARBITRATION, AND ONE
WHICH AT WORST WILL EXPOSE THOSE CONCERNED TO THE HAZARD OF DUPLICATIVE
PROCEEDINGS.  THE UNDESIRABLE CONSEQUENCES OF THE FIRST ALTERNATIVE ARE
INEVITABLE, THOSE OF THE SECOND CONJECTURAL.  AS BETWEEN THE TWO, I
THINK THE COURT AT THIS EARLY STAGE OF EXPERIENCE IN THIS AREA RIGHTLY
CHOOSES THE LATTER. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

THE INTERNATIONAL UNION OF ELECTRICAL WORKERS (IUE), OF WHICH
PETITIONER IS PRESIDENT, AND ANOTHER UNION, THE FEDERATION, EACH HAVE
COLLECTIVE BARGAINING CONTRACTS WITH AND ARE CERTIFIED BARGAINING
AGENTS FOR EMPLOYEES OF THE RESPONDENT, WESTINGHOUSE ELECTRIC
CORPORATION.  IUE'S CONTRACT COVERS "ALL PRODUCTION AND MAINTENANCE"
EMPLOYEES, BUT NOT "SALARIED TECHNICAL" EMPLOYEES.  FEDERATION'S
CONTRACT COVERS "ALL SALARIED, TECHNICAL" EMPLOYEES BUT NOT "PRODUCTION
AND MAINTENANCE" EMPLOYEES.  IUE DEMANDED THAT WESTINGHOUSE STOP
PERMITTING A NUMBER OF FEDERATION EMPLOYEES TO DO CERTAIN WORK,
CLAIMING THAT WHAT THEY WERE DOING WAS "PRODUCTION AND MAINTENANCE"
WORK AND THAT THEREFORE IUE'S MEMBERS, NOT FEDERATION'S, WERE ENTITLED
TO THESE JOBS.  WESTINGHOUSE REFUSED TO MAKE THE CHANGE, WHEREUPON IUE,
INSTEAD OF FILING AN APPROPRIATE PROCEEDING TO HAVE THE DISPUTE DECIDED
BY THE NATIONAL LABOR RELATIONS BOARD (AS I UNDERSTAND THE COURT TO
HOLD THAT IT COULD HAVE DONE), CALLED ON WESTINGHOUSE TO ARBITRATE THE
DISPUTE WITH IUE.  THIS DEMAND RESTED ON A PROVISION OF THE IUE
WESTINGHOUSE CONTRACT AGREEING TO ARBITRATION OF GRIEVANCES GROWING OUT
OF THE "INTERPRETATION, APPLICATION OR CLAIMED VIOLATION" OF THE
CONTRACT.  WESTINGHOUSE RESISTED ARBITRATION, CONTENDING THAT THE
DISPUTE OUGHT TO BE RESOLVED BY THE NATIONAL LABOR RELATIONS BOARD, AND
THE COURT OF APPEALS OF NEW YORK, AGREEING WITH WESTINGHOUSE, REFUSED
TO COMPEL WESTINGHOUSE TO ARBITRATE.  (FN1)

I AGREE WITH THE NEW YORK COURT AND WOULD AFFIRM ITS JUDGMENT. 
STRIPPED OF OBSCURANTIST ARGUMENTS, THIS CONTROVERSY IS A PLAIN, GARDEN
VARIETY JURISDICTIONAL DISPUTE BETWEEN TWO UNIONS.  THE COURT TODAY
HOLDS, HOWEVER, THAT THE NATIONAL LABOR RELATIONS ACT NOT ONLY PERMITS
BUT COMPELS WESTINGHOUSE TO ARBITRATE THE DISPUTE WITH ONLY ONE OF THE
TWO WARRING UNIONS.  SUCH AN ARBITRATION COULD NOT, OF COURSE, BRING
ABOUT THE "FINAL AND BINDING ARBITRATION OF GRIEVANCES AND DISPUTES"
THAT THE COURT SAYS CONTRIBUTES TO THE CONGRESSIONAL OBJECTIVES IN
PASSING THE LABOR ACT.  UNLESS ALL THE SALUTARY SAFEGUARDS OF DUE
PROCESS OF LAW ARE TO BE DISSIPATED AND OBLITERATED TO FURTHER THE
CAUSE OF ARBITRATION, THE RIGHTS OF EMPLOYEES BELONGING TO THE
FEDERATION SHOULD NOT, FOR "POLICY CONSIDERATIONS," BE SACRIFICED BY AN
ARBITRATION AWARD IN PROCEEDINGS BETWEEN IUE AND WESTINGHOUSE ALONE. 
ALTHOUGH I DO NOT FIND THE COURT'S OPINION SO CLEAR ON THE POINT AS I
WOULD LIKE, I INFER THAT IT IS NOT HOLDING THAT THIS MISNAMED "AWARD"
WOULD BE COMPLETELY FINAL AND BINDING ON THE FEDERATION AND ITS
MEMBERS.  WHAT THE COURT DOES PLAINLY HOLD, HOWEVER - THAT "THE WEIGHT
OF THE ARBITRATION AWARD IS LIKELY TO BE CONSIDERABLE, IF THE BOARD IS
LATER REQUIRED TO RULE ON PHASES OF THE SAME DISPUTE" - SEEMS ONLY A
TRIFLE LESS OFFENSIVE TO ESTABLISHED DUE PROCESS CONCEPTS.  AND THIS
MEANS, I SUPPOSE, THAT THIS SAME AWARD, EX PARTE AS TO FEDERATION, MUST
BE GIVEN THE SAME OR GREATER WEIGHT IN ANY JUDICIAL REVIEW OF THE
BOARD'S FINAL ORDER INVOLVING THE SAME "PHASES OF THE SAME DISPUTE." 

MOREOVER, THE COURT HOLDS THAT SUITS FOR DAMAGES CAN BE FILED AGAINST
THE EMPLOYER IN STATE COURTS OR FEDERAL COURTS UNDER SEC. 301 OF THE
TAFT-HARTLEY ACT, 29 U.S.C. SEC. 185, FOR THE "UNFAIR LABOR PRACTICE"
OF FAILING TO BARGAIN WITH THE RIGHT UNION WHEN TWO UNIONS ARE ENGAGED
IN A JURISDICTIONAL DISPUTE.  THE EMPLOYER, CAUGHT IN THAT
JURISDICTIONAL DISPUTE, IS ORDINARILY IN A HELPLESS POSITION.   HE IS
TRAPPED IN A CROSS-FIRE BETWEEN TWO UNIONS.  ALL HE CAN DO IS GUESS AS
TO WHICH UNION'S MEMBERS HE WILL BE REQUIRED BY AN ARBITRATOR, THE
LABOR BOARD, OR A COURT TO ASSIGN TO THE DISPUTED JOBS.  IF HE HAPPENS
TO GUESS WRONG, HE IS LIABLE TO BE MULCTED IN DAMAGES.  I ASSUME IT
WOULD BE EQUALLY DIFFICULT FOR HIM TO PROPHESY WHAT AWARD AN
ARBITRATOR, THE LABOR BOARD, OR A JUDGE WILL MAKE AS TO GUESS HOW BIG A
VERDICT A COURT OR A JURY WOULD GIVE AGAINST HIM.  IT MUST BE
REMEMBERED THAT THE EMPLOYER CANNOT MAKE A CHOICE WHICH WILL BE BINDING
ON EITHER AN ARBITRATOR, THE BOARD, OR A COURT.  THE COURT'S HOLDING,
THUS SUBJECTING AN EMPLOYER TO DAMAGES WHEN HE HAS DONE NOTHING WRONG,
SEEMS TO ME CONTRARY TO THE NATIONAL LABOR RELATIONS ACT AS WELL AS TO
THE BASIC PRINCIPLES OF COMMON EVERYDAY JUSTICE.    THE RESULT OF ALL
THIS IS THAT THE NATIONAL LABOR RELATIONS BOARD, THE AGENCY CREATED BY
CONGRESS FINALLY TO SETTLE LABOR DISPUTES IN THE INTEREST OF INDUSTRIAL
PEACE, IS TO BE SUPPLANTED IN PART BY SO-CALLED ARBITRATION WHICH IN
ITS VERY NATURE CANNOT ACHIEVE A FINAL ADJUSTMENT OF THOSE DISPUTES. 
ONE OF THE MAIN EVILS IT HAD BEEN HOPED THE LABOR ACT WOULD ABATE WAS
JURISDICTIONAL DISPUTES BETWEEN UNIONS OVER WHICH UNION MEMBERS WOULD
DO CERTAIN WORK.  (FN2)  THE BOARD CAN MAKE FINAL SETTLEMENTS OF SUCH
DISPUTES.  ARBITRATION BETWEEN SOME BUT NOT ALL THE PARTIES CANNOT.  I
FEAR THAT THE COURT'S RECENTLY ANNOUNCED LEANINGS TO TREAT ARBITRATION
AS AN ALMOST SURE AND CERTAIN SOLVENT OF ALL LABOR TROUBLES HAS BEEN
CARRIED SO FAR IN THIS CASE AS UNNECESSARILY TO BRING ABOUT GREAT
CONFUSION AND TO DELAY FINAL AND BINDING SETTLEMENTS OF JURISDICTIONAL
DISPUTES BY THE LABOR BOARD, THE AGENCY WHICH I THINK CONGRESS INTENDED
TO DO THAT VERY JOB. 

I WOULD AFFIRM. 

FN1  11 N.Y.2D 452, 184 N.E.2D 298, 230 N.Y.S.2D 703. 

FN2  SEE LABOR BOARD V. RADIO & TELEVISION BROADCAST ENGINEERS UNION,
364 U.S. 573; CF.  ORDER OF RAILWAY CONDUCTORS V. PITNEY, 326 U.S. 561,
567. 
..END :















HARDY V. UNITED STATES 375 U.S. 277 


NO. 112.  ARGUED NOVEMBER 21, 1963.  - DECIDED JANUARY 6, 1964.  -
REVERSED. 


AFTER AN INDIGENT DEFENDANT IN A FEDERAL COURT HAD BEEN CONVICTED AND
SENTENCED TO IMPRISONMENT, THE COURT-APPOINTED LAWYER WHO REPRESENTED
HIM AT THE TRIAL WITHDREW HIS APPEARANCE.  THE COURT OF APPEALS
APPOINTED DIFFERENT COUNSEL TO REPRESENT THE INDIGENT, AND THIS COUNSEL
MOVED FOR A TRANSCRIPT OF THE ENTIRE PROCEEDINGS OF THE TRIAL TO AID
HIM IN OBTAINING LEAVE TO APPEAL IN FORMA PAUPERIS.  THAT MOTION WAS
DENIED.  HELD:  COUNSEL WAS ENTITLED TO BE FURNISHED A FREE TRANSCRIPT
OF THE TRIAL.  PP. 279-282. 

(A)  WHERE NEW COUNSEL REPRESENTS AN INDIGENT ON APPEAL, HE CANNOT
FAITHFULLY DISCHARGE HIS OBLIGATION EITHER IN OBTAINING LEAVE TO APPEAL
OR IN PRESENTATION OF AN APPEAL UNLESS HE HAS THE ENTIRE TRANSCRIPT. 
PP. 279-280. 

(B)  THE RIGHT, UNDER RULE 52(B) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, TO NOTICE "PLAIN ERRORS OR DEFECTS" IS ILLUSORY IF NO
TRANSCRIPT IS AVAILABLE AT LEAST TO ONE WHOSE LAWYER ON APPEAL ENTERS
THE CASE AFTER THE TRIAL IS ENDED.  P. 280. 

(C)  THE DUTY OF COUNSEL ON APPEAL IS NOT TO SERVE AS AMICUS TO THE
COURT OF APPEALS, BUT AS ADVOCATE FOR THE APPELLANT.  PP. 281-282. 

(D)  THE COURT HERE DEALS ONLY WITH THE STATUTORY SCHEME AND DOES NOT
REACH A CONSIDERATION OF CONSTITUTIONAL REQUIREMENTS.  P. 282. 

HARDY V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A PAUPER, HAS BEEN CONVICTED AND SENTENCED TO PRISON. 
AFTER CONVICTION THE COURT-APPOINTED LAWYER, WHO REPRESENTED HIM AT THE
TRIAL, WITHDREW HIS APPEARANCE WITH THE APPROVAL OF THE COURT.  THE
PRESENT COURT-APPOINTED ATTORNEY IS A DIFFERENT PERSON, APPOINTED BY
THE COURT OF APPEALS AFTER THE INDIGENT HAD PREPARED PRO SE A PETITION
FOR LEAVE TO APPEAL IN FORMA PAUPERIS.  THE DISTRICT COURT DENIED LEAVE
TO APPEAL IN FORMA PAUPERIS.  THE COURT OF APPEALS, ALTHOUGH EMPOWERED
TO ALLOW THE APPEAL (COPPEDGE V. UNITED STATES, 369 U.S. 438, 455),
MERELY ALLOWED PETITIONER TO PROCEED IN FORMA PAUPERIS FOR PURPOSES OF
THE APPEAL "TO THE EXTENT OF HAVING THE STENOGRAPHIC TRANSCRIPT OF THE
TESTIMONY AND EVIDENCE PRESENTED BY THE GOVERNMENT PREPARED AT THE
EXPENSE OF THE UNITED STATES," AS THOSE PARTS OF THE TRANSCRIPT WERE
THE ONLY ONES THAT RELATE "TO THE CONCLUSORY ALLEGATIONS" FORMULATED BY
THE INDIGENT DEFENDANT PRO SE.  SEE INGRAM V. UNITED STATES, 315 F.2D
29, 30-31.  AFTER A PETITION FOR REHEARING WAS DENIED, PETITIONER MOVED
THE COURT OF APPEALS FOR A TRANSCRIPT OF THE BALANCE OF THE PROCEEDINGS
IN THE DISTRICT COURT.  THIS MOTION WAS DENIED BY A DIVIDED BENCH.  THE
CASE IS HERE ON CERTIORARI.  373 U.S. 902. 

WE DEAL WITH THE FEDERAL SYSTEM WHERE THE APPEAL IS A MATTER OF RIGHT
(COPPEDGE V. UNITED STATES, SUPRA, AT 441; 28 U.S.C. SECS. 1291, 1294),
AND WHERE THE APPELLANT IS ENTITLED TO "THE AID OF COUNSEL UNLESS HE
INSISTS ON BEING HIS OWN."  JOHNSON V. UNITED STATES, 352 U.S. 565,
566.  CONGRESS HAS BUTTRESSED THAT RIGHT OF APPEAL IN SEVERAL WAYS.  IT
HAS PROVIDED IN 28 U.S.C. SEC. 1915 THAT ANY FEDERAL COURT MAY
AUTHORIZE AN "APPEAL" IN FORMA PAUPERIS, EXCEPT THAT SUCH AN APPEAL MAY
NOT BE TAKEN IF THE TRIAL COURT CERTIFIES THAT "IT IS NOT TAKEN IN GOOD
FAITH."  FURTHER, A TRANSCRIPT IS AVAILABLE FOR APPEAL PURPOSES,
CONGRESS HAVING PROVIDED IN THE COURT REPORTER ACT, 28 U.S.C. SEC.
753(B), THAT A TRANSCRIPT "BY SHORTHAND OR BY MECHANICAL MEANS" OF "ALL
PROCEEDINGS IN CRIMINAL CASES HAD IN OPEN COURT" SHALL BE MADE.  THE
UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA HAS ADOPTED THE
PRACTICE OF FURNISHING TO INDIGENTS A FULL TRANSCRIPT ON REQUEST IF THE
COST TO THE UNITED STATES IS NOT MORE THAN $200.  (FN1)  THAT POLICY
DRAWS A DISTINCTION NOT PRESENT IN THE STATUTE NOR IN THE RULES OF THE
COURT OF APPEALS WHICH PROVIDE THAT, WHEN THE COURT ALLOWS AN APPEAL IN
FORMA PAUPERIS, IT SHALL THEN DETERMINE "WHETHER AND TO WHAT EXTENT, A
TRANSCRIPT WILL BE NECESSARY FOR THE PROPER DETERMINATION OF THE
APPEAL."  D.C. CIR. RULE 33(B)(2)(I). 

WE HAVE HERE A CASE WHERE AN APPEAL IN FORMA PAUPERIS HAS NOT YET
BEEN ALLOWED.  BUT WHETHER COUNSEL SEEKS AN ENTIRE TRANSCRIPT AT THAT
STAGE OR LATER ON, THE PROBLEM SEEMS TO US TO BE THE SAME. 

A COURT-APPOINTED COUNSEL WHO REPRESENTS THE INDIGENT ON APPEAL GETS
AT PUBLIC EXPENSE, AS A MINIMUM, THE TRANSCRIPT WHICH IS RELEVANT TO
THE POINTS OF ERROR ASSIGNED.  COPPEDGE V. UNITED STATES, SUPRA, AT
446; INGRAM V. UNITED STATES, SUPRA.  (FN2)  BUT WHEN, AS HERE, NEW
COUNSEL REPRESENTS THE INDIGENT ON APPEAL, HOW CAN HE FAITHFULLY
DISCHARGE THE OBLIGATION WHICH THE COURT HAS PLACED ON HIM UNLESS HE
CAN READ THE ENTIRE TRANSCRIPT?  HIS DUTY MAY POSSIBLY NOT BE
DISCHARGED IF HE IS ALLOWED LESS THAN THAT.  FOR RULE 52(B) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES:  "PLAIN ERRORS OR DEFECTS
AFFECTING SUBSTANTIAL RIGHTS MAY BE NOTICED ALTHOUGH THEY WERE NOT
BROUGHT TO THE ATTENTION OF THE COURT."  THE RIGHT TO NOTICE "PLAIN
ERRORS OR DEFECTS" IS ILLUSORY IF NO TRANSCRIPT IS AVAILABLE AT LEAST
TO ONE WHOSE LAWYER ON APPEAL ENTERS THE CASE AFTER THE TRIAL IS
ENDED.  (FN3) 

THE DUTY OF COUNSEL ON APPEAL, AS WE NOTED IN ELLIS V. UNITED STATES,
356 U.S. 674, 675, IS NOT TO SERVE AS AMICUS TO THE COURT OF APPEALS,
BUT AS ADVOCATE FOR THE APPELLANT: 

"NORMALLY, ALLOWANCE OF AN APPEAL SHOULD NOT BE DENIED UNTIL AN
INDIGENT HAS HAD ADEQUATE REPRESENTATION BY COUNSEL.  JOHNSON V. UNITED
STATES, 352 U.S. 565.  IN THIS CASE, IT APPEARS THAT THE TWO ATTORNEYS
APPOINTED BY THE COURT OF APPEALS, PERFORMED ESSENTIALLY THE ROLE OF
AMICI CURIAE.   BUT REPRESENTATION IN THE ROLE OF AN ADVOCATE IS
REQUIRED.  IF COUNSEL IS CONVINCED, AFTER CONSCIENTIOUS INVESTIGATION,
THAT THE APPEAL IS FRIVOLOUS, OF COURSE, HE MAY ASK TO WITHDRAW ON THAT
ACCOUNT.  IF THE COURT IS SATISFIED THAT COUNSEL HAS DILIGENTLY
INVESTIGATED THE POSSIBLE GROUNDS OF APPEAL, AND AGREES WITH COUNSEL'S
EVALUATION OF THE CASE, THEN LEAVE TO WITHDRAW MAY BE ALLOWED AND LEAVE
TO APPEAL MAY BE DENIED." 

WE DEAL HERE ONLY WITH THE STATUTORY SCHEME AND DO NOT REACH A
CONSIDERATION OF CONSTITUTIONAL REQUIREMENTS.  WE SEE NO ESCAPE FROM
THE CONCLUSION THAT EITHER WHERE THE REQUIREMENTS OF A NONFRIVOLOUS
APPEAL PRESCRIBED BY COPPEDGE V. UNITED STATES, SUPRA, ARE MET, OR
WHERE SUCH A SHOWING IS SOUGHT TO BE MADE, AND WHERE COUNSEL ON APPEAL
WAS NOT COUNSEL AT THE TRIAL, THE REQUIREMENTS PLACED ON HIM BY ELLIS
V. UNITED STATES, SUPRA, WILL OFTEN MAKE IT SEEM NECESSARY TO HIM TO
OBTAIN AN ENTIRE TRANSCRIPT. 

WE CONCLUDE THAT THIS COUNSEL'S DUTY CANNOT BE DISCHARGED UNLESS HE
HAS A TRANSCRIPT OF THE TESTIMONY AND EVIDENCE PRESENTED BY THE
DEFENDANT AND ALSO THE COURT'S CHARGE TO THE JURY, AS WELL AS THE
TESTIMONY AND EVIDENCE PRESENTED BY THE PROSECUTION.  REVERSED. 

FN1  DURING ORAL ARGUMENT OF THIS CASE, COUNSEL FOR RESPONDENT STATED
THAT THE UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA INITIATED,
SINCE THIS CASE WAS BEFORE THE LOWER COURTS, A PRACTICE OF NOT FILING
AN OPPOSITION TO A MOTION FOR A FULL TRANSCRIPT WHERE THE COST OF SUCH
A TRANSCRIPT WILL NOT EXCEED $200.  THIS IS USUALLY THE CASE WHEN THE
TRIAL DOES NOT EXCEED THREE DAYS.  THIS PRACTICE IS FOLLOWED BECAUSE
THE UNITED STATES ATTORNEY FEELS THAT THE TIME AND EFFORT NECESSARY TO
OPPOSE SUCH A MOTION WILL, IN TERMS OF DOLLARS, EXCEED $200.  ACCORDING
TO COUNSEL, THE FEDERAL DISTRICT COURT, PURSUANT TO A "TACIT"
UNDERSTANDING, USUALLY GRANTS UNOPPOSED MOTIONS FOR A COMPLETE
TRANSCRIPT. 

FN2  IN INGRAM THE COURT OF APPEALS SAID: 

"  ...  WHEN A PRO SE PETITION IS FILED, UPON DIRECT APPEAL FROM
JUDGMENT OF CONVICTION, AND THE CLAIMS OF ERROR STATED THEREIN (E.G.,
'INSUFFICIENCY OF EVIDENCE,' 'UNLAWFUL SEARCH AND SEIZURE,') ARE SO
CONCLUSORY IN NATURE THAT 'THEIR SUBSTANCE CANNOT ADEQUATELY BE
ASCERTAINED,' COUNSEL WILL BE APPOINTED AND, SIMULTANEOUSLY, THE
PORTION OF THE TRANSCRIPT OF PROCEEDINGS WHICH RELATES TO THE
CONCLUSORY ALLEGATIONS WILL BE ORDERED SO THAT APPOINTED COUNSEL MAY
DETERMINE THEIR MERIT.  OF COURSE, COUNSEL WILL NOT BE LIMITED TO THE
TRANSCRIPT INITIALLY ALLOWED IF HE CAN IN GOOD CONSCIENCE ADVANCE OTHER
CLAIMS OF ERROR REQUIRING ADDITIONAL PORTIONS OF THE TRANSCRIPT."  ID.,
AT 30-31. 

FN3  BOSKEY, THE RIGHT TO COUNSEL IN APPELLATE PROCEEDINGS, 45 MINN.
L. REV. 783, 792-793 (1961), IN SPEAKING OF THE TASK OF COUNSEL WHO IS
APPOINTED TO REPRESENT THE APPELLANT AND WHO DID NOT SERVE AS TRIAL
COUNSEL, SAYS: 

"  ...  THE NEW COUNSEL IS OPERATING UNDER SERIOUS HANDICAPS. 
NORMALLY HE HAS NO PRIOR ACQUAINTANCE WITH THE TRIAL PROCEEDINGS AND NO
PERSONAL KNOWLEDGE OF THE CASE WHICH WOULD FORM A BASIS FOR SOUND
JUDGMENT.  NORMALLY NO TRANSCRIPT IS IN EXISTENCE AT THIS STAGE, SO HE
CANNOT MAKE HIS OWN INDEPENDENT ANALYSIS OF THE TRIAL PROCEEDINGS. 

"IN ORDER TO INVESTIGATE WHETHER THE APPEAL INVOLVES ONE OR MORE 'NOT
PLAINLY FRIVOLOUS' ISSUES, COUNSEL MAY EXAMINE THE FORMAL DOCUMENTS ON
RECORD IN THE TRIAL COURT; HE MAY INTERVIEW HIS CLIENT; HE MAY DISCUSS
THE CASE WITH DEFENDANT'S TRIAL COUNSEL AND WITH THE PROSECUTOR; HE MAY
TRY TO WORK OUT WITH THE PROSECUTOR AN 'AGREED STATEMENT' OF THE CASE,
DESPITE THE FACT THAT HE LACKS THE INFORMATION NECESSARY TO ASSURE
HIMSELF THAT THE AGREED STATEMENT WOULD BE AN ACCURATE ONE; HE MAY ASK
THE OFFICIAL COURT REPORTER AS A COURTESY TO READ BACK CERTAIN LIMITED
PORTIONS OF THE REPORTER'S SHORTHAND NOTES (OR ALL OF THEM, IF THE
TRIAL WAS A SHORT ONE); AND IT HAS BEEN SUGGESTED - THOUGH PERHAPS
WITHOUT TOO MUCH REGARD FOR THE PRACTICALITIES OF SOME SITUATIONS -
THAT HE MAY EVEN INTERVIEW THE TRIAL JUDGE AND SEEK TO INSPECT ANY
NOTES WHICH THE TRIAL JUDGE KEPT OF THE TRIAL PROCEEDINGS.  SUCH
EFFORTS ARE APT TO BE INCREDIBLY TIME-CONSUMING AND FRUSTRATING, AND
SOMETIMES MAY AROUSE IN COUNSEL A FEELING THAT HE WOULD BE WELL ADVISED
TO AVOID FUTURE ASSIGNMENTS OF APPELLATE IN FORMA PAUPERIS WORK.  BUT
WORSE THAN THAT, IN MANY INSTANCES THESE EFFORTS WILL BE WHOLLY
UNSATISFACTORY AS A MEANS OF SAFEGUARDING THE DEFENDANT'S RIGHTS. 

"RECOLLECTIONS AND NOTES OF TRIAL COUNSEL AND OF OTHERS ARE APT TO BE
FAULTY AND INCOMPLETE.  FREQUENTLY, ISSUES SIMPLY CANNOT EVEN BE SEEN -
LET ALONE ASSESSED - WITHOUT READING AN ACCURATE TRANSCRIPT. 
PARTICULARLY IS THIS TRUE OF QUESTIONS RELATING TO EVIDENCE OR TO THE
JUDGE'S CHARGE; AND IT MAY ALSO APPLY TO MANY OTHER TYPES OF
QUESTIONS.  MOREOVER, THE ACTUAL RECORD (IF APPELLATE COUNSEL COULD
HAVE IT TO INSPECT) MIGHT DISCLOSE ISSUES SUBSTANTIAL ENOUGH TO
CONSTITUTE PROBABLE OR POSSIBLE 'PLAIN ERROR,' EVEN THOUGH TRIAL
COUNSEL WAS NOT AWARE OF THEIR EXISTENCE; AND THE INDIGENT SHOULD HAVE
THE SAME OPPORTUNITY AS THE WEALTHY TO URGE THAT PLAIN ERROR SHOULD BE
NOTICED ON APPEAL.  IN SHORT, A CONSCIENTIOUS COUNSEL FRESHLY ENTERING
THE CASE AT THE APPELLATE STAGE NORMALLY IS LIKELY TO CONCLUDE THAT A
FULL OR PARTIAL TRANSCRIPT OF THE TRIAL PROCEEDINGS WILL BE
INDISPENSABLE IF THE REQUISITE 'DEPENDABLE RECORD' IS TO BE OBTAINED AS
A BASIS FOR EVALUATING THE CASE." 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN AND MR. JUSTICE STEWART JOIN, CONCURRING. 

I JOIN THE COURT'S OPINION WHICH IS WRITTEN NARROWLY WITHIN THE
FRAMEWORK OF PRIOR DECISIONS.  I CONCUR SEPARATELY, HOWEVER, TO STATE
MY CONVICTION THAT IN THE INTERESTS OF JUSTICE THIS COURT SHOULD
REQUIRE, UNDER OUR SUPERVISORY POWER, THAT FULL TRANSCRIPTS BE
PROVIDED, WITHOUT LIMITATION, IN ALL FEDERAL CRIMINAL CASES TO
DEFENDANTS WHO CANNOT AFFORD TO PURCHASE THEM, WHENEVER THEY SEEK TO
PROSECUTE AN APPEAL. 

THE PROBLEM HERE ARISES OUT OF THE DIFFERENT PROCEDURES BY WHICH
CRIMINAL APPEALS TAKEN BY INDIGENT AND NONINDIGENT DEFENDANTS ARE
PROCESSED IN THE DISTRICT OF COLUMBIA AND OTHER FEDERAL COURTS.  THE
PROCEDURE FOR NONINDIGENTS, WHO ARE REPRESENTED BY RETAINED COUNSEL AND
WHO ARE GENERALLY FREE ON BAIL PENDING APPEAL, IS AUTOMATIC, DIRECT AND
PROMPT.  WITHIN 10 DAYS AFTER JUDGMENT, COUNSEL FILES A SIMPLE NOTICE
OF APPEAL WITH THE CLERK OF THE DISTRICT COURT; A TRANSCRIPT IS
PURCHASED AND FILED WITH THE COURT OF APPEALS; AND THE CASE IS THEN
AUTOMATICALLY PLACED ON THE CALENDAR FOR BRIEFING AND ARGUMENT ON THE
MERITS.  (FN1) THE PROCEDURE FOR INDIGENTS, WHO ARE GENERALLY
INCARCERATED PENDING APPEAL BECAUSE OF THEIR INABILITY TO MAKE BAIL,
(FN2) IS INDIRECT, DILATORY AND DISCRETIONARY.  A KEY DIFFERENCE IS
THAT WHILE A NONINDIGENT MAY APPEAL, IN EFFECT, AS A MATTER OF RIGHT,
AN INDIGENT MUST MAKE A SHOWING THAT HIS CLAIMS OF ERROR ARE NOT
FRIVOLOUS BEFORE HE IS GIVEN PERMISSION TO APPEAL.  A BRIEF DESCRIPTION
OF THE PROCESS BY WHICH THE FEDERAL COURTS SEEK TO SCREEN FRIVOLOUS
ATTEMPTS TO APPEAL IN FORMA PAUPERIS IS NECESSARY TO AN UNDERSTANDING
OF THE PROBLEM RAISED BY THIS CASE. 

FOLLOWING THE CONVICTION AND SENTENCING OF AN INDIGENT DEFENDANT, HIS
COURT-APPOINTED TRIAL LAWYER OFTEN WITHDRAWS FROM THE CASE.  (FN3)  IF
THE RIGHT TO APPEAL IS TO BE PRESERVED, THE DEFENDANT PRO SE MUST FILE
A NOTICE OF APPEAL WITHIN 10 DAYS AFTER THE ENTRY OF THE JUDGMENT AND
MUST APPLY TO THE DISTRICT COURT FOR LEAVE TO APPEAL IN FORMA
PAUPERIS.  THE APPLICATION MUST INCLUDE A STATEMENT OF THE ALLEGED
ERRORS THE DEFENDANT SEEKS TO RAISE ON APPEAL.  UNLESS THE DISTRICT
COURT CONCLUDES THAT THE APPEAL IS NOT TAKEN IN "GOOD FAITH," LEAVE TO
APPEAL IN FORMA PAUPERIS MUST BE GRANTED.  IF THE DISTRICT COURT DENIES
LEAVE TO APPEAL IN FORMA PAUPERIS, THE DEFENDANT, WHO AS PREVIOUSLY
NOTED, IS OFTEN WITHOUT THE SERVICES OF AN ATTORNEY, MAY APPLY TO THE
COURT OF APPEALS FOR LEAVE TO APPEAL.  IF THE COURT OF APPEALS CAN
DETERMINE FROM THE APPLICATION THAT A NONFRIVOLOUS CLAIM OF ERROR
EXISTS, IT MUST GRANT LEAVE TO APPEAL.  IF LEAVE IS GRANTED, EITHER BY
THE DISTRICT COURT OR THE COURT OF APPEALS, A LAWYER IS THEN APPOINTED
AND SUPPLIED WITH THE PORTIONS OF THE TRANSCRIPT RELATING TO THE
NONFRIVOLOUS CLAIMS.  IF HE THEN DESIRES ANY ADDITIONAL PORTION OF THE
TRANSCRIPT TO HELP HIM PREPARE HIS APPEAL ON THE MERITS, HE MUST ASK
THE COURT OF APPEALS TO ORDER ITS PREPARATION. 

IF THE DISTRICT COURT HAS DENIED LEAVE TO APPEAL IN FORMA PAUPERIS,
AND IF "THE CLAIMS MADE OR THE ISSUES SOUGHT TO BE RAISED BY THE
APPLICANT ARE SUCH THAT THEIR SUBSTANCE CANNOT ADEQUATELY BE
ASCERTAINED FROM THE FACE OF THE DEFENDANT'S APPLICATION, THE COURT OF
APPEALS MUST PROVIDE THE WOULD-BE APPELLANT WITH BOTH THE ASSISTANCE OF
COUNSEL AND A RECORD OF SUFFICIENT COMPLETENESS TO ENABLE HIM TO
ATTEMPT TO MAKE A SHOWING  ...  " THAT THE CASE PRESENTS A NONFRIVOLOUS
ISSUE.  COPPEDGE V. UNITED STATES, 369 U.S. 438, 446.  A "RECORD OF
SUFFICIENT COMPLETENESS" HAS BEEN INTERPRETED BY THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA TO MEAN "THE PORTION OF THE TRANSCRIPT OF
PROCEEDINGS WHICH RELATES TO THE CONCLUSORY ALLEGATIONS" MADE BY THE
DEFENDANT IN HIS PRO SE APPLICATION.  INGRAM V. UNITED STATES, 114 U.S.
APP. D.C. 283, 285, 315 F.2D 29, 31.  AFTER RECEIVING THE RELEVANT
PORTION OF THE TRANSCRIPT, THE APPOINTED LAWYER HAS THE DUTY OF
PREPARING A MEMORANDUM SHOWING, IF HE CAN, THAT THE CASE PRESENTS A
NONFRIVOLOUS ISSUE AND THAT LEAVE TO APPEAL SHOULD BE GRANTED.  IF THE
LAWYER FINDS WHAT HE CONSIDERS A NONFRIVOLOUS CLAIM OF ERROR IN THE
PORTION OF THE TRANSCRIPT HE HAS BEEN GIVEN, HE FILES THE MEMORANDUM. 
IF THE COURT THEN AGREES THAT THERE IS A NONFRIVOLOUS ISSUE, IT MUST
GRANT LEAVE TO APPEAL IN FORMA PAUPERIS, AND THE SAME PREVIOUSLY
DESCRIBED PROCEDURE IS THEN FOLLOWED AS WOULD BE FOLLOWED IF LEAVE HAD
BEEN GRANTED ORIGINALLY BY THE DISTRICT COURT OR THE COURT OF APPEALS. 

IF THE LAWYER HAS EXAMINED THE PORTIONS OF THE TRANSCRIPT RELATING TO
THE PRO SE CLAIMS OF ERROR AND HAS SATISFIED HIMSELF THAT THEY CONTAIN
NO ISSUE WHICH HE CAN ASSERT TO BE NONFRIVOLOUS, HE THEN HAS THESE
ALTERNATIVES.  DEEMING HIS APPOINTED FUNCTION EXHAUSTED, THE ATTORNEY
MAY SEEK LEAVE FROM THE COURT OF APPEALS TO WITHDRAW FROM THE CASE ON
THE GROUND THAT HE IS SATISFIED THAT THE CASE PRESENTS NO ISSUE WHICH
IS NONFRIVOLOUS.  (FN4)  IF LEAVE TO WITHDRAW IS GRANTED, A NEW LAWYER
IS GENERALLY NOT APPOINTED, AND THE DEFENDANT IS INFORMED THAT HE MAY
SUBMIT HIS OWN MEMORANDUM IN SUPPORT OF HIS APPLICATION.  SINCE THE PRO
SE MEMORANDUM WILL RARELY ADD ANYTHING TO THE ORIGINAL APPLICATION,
ONCE THE LAWYER IS GIVEN LEAVE TO WITHDRAW DENIAL OF THE DEFENDANT'S
APPLICATION IS VIRTUALLY INEVITABLE. 

THE LAWYER WHO HAS SATISFIED HIMSELF THAT THE TRANSCRIPT ORIGINALLY
ORDERED CONTAINS NO NONFRIVOLOUS ISSUE MAY, HOWEVER, DECIDE TO REQUEST
ADDITIONAL PORTIONS OF THE TRANSCRIPT BEFORE SEEKING TO WITHDRAW FROM
THE CASE.  IF HIS EXAMINATION OF THE ORIGINAL PORTIONS OF THE
TRANSCRIPT LEADS HIM TO SUSPECT SPECIFIC ERROR IN OTHER PORTIONS OF THE
TRANSCRIPT, THE COURT OF APPEALS, UPON BEING PRESENTED WITH THESE NEW
CLAIMS OF ERROR, WILL ORDER THE PRODUCTION OF THOSE PORTIONS OF THE
TRANSCRIPT RELATING TO THESE CLAIMS. 

WHERE THE APPOINTED LAWYER CAN FIND NO NONFRIVOLOUS CLAIM OF ERROR IN
THE PORTION OF THE TRANSCRIPT RELATING TO THE CLAIMS RAISED IN THE
DEFENDANT'S PRO SE APPLICATION BUT HAS NO IDEA WHETHER THE REMAINDER OF
THE TRANSCRIPT WILL DISCLOSE ANY SUCH CLAIM, HE CANNOT IN GOOD
CONSCIENCE ALLEGE ANY NEW CLAIM OF ERROR TO WHICH ADDITIONAL PORTIONS
OF THE TRANSCRIPT WOULD BE RELEVANT.  NOR CAN HE, WITHOUT BEING
FURNISHED WITH THE REMAINDER OF THE TRANSCRIPT, CONCLUDE IN GOOD
CONSCIENCE THAT THE CASE PRESENTS NO ISSUE WHICH IS NONFRIVOLOUS. 

COUNSEL IN THIS CASE WAS PRESENTED WITH PRECISELY THIS DILEMMA AND
SOUGHT RESOLUTION OF IT BY ASKING THE COURT OF APPEALS EITHER TO ORDER
THE PRODUCTION OF THE REMAINDER OF THE TRANSCRIPT, OR TO TERMINATE HIS
RESPONSIBILITY IN THAT COURT BY DENYING LEAVE TO APPEAL IN FORMA
PAUPERIS.  THE COURT OF APPEALS GRANTED NEITHER REQUEST.  THUS WE NOW
HAVE BEFORE US FOR RESOLUTION THE PROBLEM OF THE CONSCIENTIOUS
APPOINTED COUNSEL AT THIS CRITICAL STAGE IN THE SCREENING PROCESS. 

THIS CASE, THEREFORE, ALTHOUGH IT ARISES IN THE CONTEXT OF A REQUEST
FOR PORTIONS OF A TRANSCRIPT, RAISES FUNDAMENTAL QUESTIONS CONCERNING
THE PROPER ROLE OF APPOINTED COUNSEL ON APPEAL.  IF THE FUNCTION OF
APPOINTED COUNSEL IS ESSENTIALLY TO AID THE COURT, AS AMICUS CURIAE, IN
ASSESSING THE CLAIMS OF ERRORS MADE IN THE PRO SE PETITION AND IN
DETERMINING WHETHER THEY INCLUDE A NONFRIVOLOUS ISSUE, THEN THE
PRACTICE NOW PREVAILING IS PERFECTLY SUITED TO ITS END.  IT IS THEN
ENTIRELY LOGICAL TO GIVE THE APPOINTED LAWYER ONLY THOSE PORTIONS OF
THE TRANSCRIPT RELATING TO THE PRO SE CLAIMS OF ERROR, AND TO PERMIT
HIM TO WITHDRAW FROM THE CASE IF THOSE PORTIONS OF THE TRANSCRIPT
REVEAL NO NONFRIVOLOUS CLAIMS.  HOWEVER, IF THE PROPER FUNCTION OF THE
APPOINTED LAWYER IS ESSENTIALLY THE SAME AS THAT OF THE RETAINED LAWYER
- TO BE AN EFFECTIVE ADVOCATE IN AN ADVERSARY SYSTEM - THEN THERE CAN
BE NO JUSTIFICATION FOR LIMITING HIM TO THOSE PORTIONS OF THE
TRANSCRIPT RELATING TO THE CLAIMS OF ERROR RAISED BY HIS INDIGENT AND
OFTEN ILLITERATE CLIENT AND FOR PERMITTING - INDEED IN EFFECT REQUIRING
- HIM TO WITHDRAW FROM THE CASE WITHOUT EXAMINING THE REMAINDER OF THE
TRIAL TRANSCRIPT.  IT CANNOT SERIOUSLY BE SUGGESTED THAT A RETAINED AND
EXPERIENCED APPELLATE LAWYER WOULD LIMIT HIMSELF TO THE PORTIONS OF THE
TRANSCRIPT DESIGNATED BY HIS CLIENT OR EVEN BY THE TRIAL ATTORNEY,
ESPECIALLY WHERE THE COURTS OF APPEALS MAY, AND NOT INFREQUENTLY DO,
REVERSE CONVICTIONS FOR "PLAIN ERRORS" NOT RAISED AT TRIAL. 

THE PROPER FUNCTION OF APPOINTED COUNSEL ON APPEAL HAS BEEN DESCRIBED
BY THIS COURT.  "REPRESENTATION IN THE ROLE OF AN ADVOCATE IS
REQUIRED."  ELLIS V. UNITED STATES, 356 U.S. 674, 675.   IT IS NOT
ENOUGH THAT THE APPOINTED COUNSEL PERFORM "ESSENTIALLY THE ROLE OF
AMICI CURIAE."  IBID. IF THIS REQUIREMENT IS TO BE MORE THAN A HOLLOW
PLATITUDE, THEN APPOINTED COUNSEL MUST BE PROVIDED WITH THE TOOLS OF AN
ADVOCATE.  AS ANY EFFECTIVE APPELLATE ADVOCATE WILL ATTEST, THE MOST
BASIC AND FUNDAMENTAL TOOL OF HIS PROFESSION IS THE COMPLETE TRIAL
TRANSCRIPT, THROUGH WHICH HIS TRAINED FINGERS MAY LEAF AND HIS TRAINED
EYES MAY ROAM IN SEARCH OF AN ERROR, A LEAD TO AN ERROR, OR EVEN A
BASIS UPON WHICH TO URGE A CHANGE IN AN ESTABLISHED AND HITHERTO
ACCEPTED PRINCIPLE OF LAW.  (FN5) ANYTHING SHORT OF A COMPLETE
TRANSCRIPT IS INCOMPATIBLE WITH EFFECTIVE APPELLATE ADVOCACY. 

THE OPINION OF THE COURT AGREES WITH THIS CONCLUSION AS IT RELATES TO
"ONE WHOSE LAWYER ON APPEAL ENTERS THE CASE AFTER THE TRIAL IS ENDED." 
ANTE, AT 280.  I BELIEVE THAT IT IS EQUALLY APPLICABLE TO ONE WHOSE
APPOINTED LAWYER ON APPEAL WAS ALSO HIS LAWYER AT TRIAL.  NO
RESPONSIBLE RETAINED LAWYER WHO REPRESENTS A DEFENDANT AT TRIAL WILL
RELY EXCLUSIVELY ON HIS MEMORY (EVEN AS SUPPLEMENTED BY TRIAL NOTES) IN
COMPOSING A LIST OF POSSIBLE TRIAL ERRORS WHICH DELIMIT HIS APPEAL. 
NOR SHOULD THIS BE REQUIRED OF AN APPOINTED LAWYER.  AN APPOINTED
LAWYER, WHETHER OR NOT HE REPRESENTED THE DEFENDANT AT TRIAL, NEEDS A
COMPLETE TRIAL TRANSCRIPT TO DISCHARGE HIS FULL RESPONSIBILITY OF
PREPARING THE MEMORANDUM SUPPORTING THE APPLICATION TO PROCEED IN FORMA
PAUPERIS.  (FN6) 

I BELIEVE FURTHER THAT THE AVAILABILITY OF A COMPLETE TRANSCRIPT
SHOULD NOT BE MADE TO DEPEND ON THE FACTS OF EACH CASE.  THIS COURT HAS
RECENTLY CONDEMNED "THE INEVITABLE DELAY THAT SURROUNDS A PROCEDURE IN
WHICH THE COURTS GIVE PIECEMEAL ATTENTION TO THE SERIES OF MOTIONS THAT
INDIGENTS MUST MAKE BEFORE A FINAL ADJUDICATION OF THE MERITS OF THEIR
CASES IS REACHED."  COPPEDGE V. UNITED STATES, 369 U.S., AT 450.  ONE
OF THE PRIME REASONS FOR THIS DELAY HAS BEEN THE "SEPARATE
CONSIDERATIONS OF MOTIONS  ...  FOR THE PREPARATION OF A TRANSCRIPT OF
THE TRIAL PROCEEDINGS  ... ."  IBID.  A CASE-BY-CASE APPROACH -
REGARDLESS OF THE GOVERNING STANDARD - MUST INEVITABLY CONTRIBUTE TO
THIS DELAY.  EXPERIENCE IN THIS AREA HAS SHOWN THE NEED FOR A CLEAR AND
SIMPLE ACROSS-THE-BOARD RULE THAT WOULD OBVIATE THE NECESSITY FOR
FURTHER COURT CONSIDERATIONS OF TRANSCRIPT REQUESTS.  THIS RULE SHOULD
BE THAT ANY CRIMINAL DEFENDANT DESIRING TO APPEAL WHO CANNOT AFFORD A
TRANSCRIPT, (FN7) MUST BE GIVEN ONE TO HELP HIS APPOINTED LAWYER
PREPARE A MEMORANDUM ESTABLISHING THE EXISTENCE OF A NONFRIVOLOUS ISSUE
IN SUPPORT OF THE APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS. 

THE GOVERNMENT SUGGESTS THAT SUCH A MEMORANDUM CAN BE ADEQUATELY
PREPARED, EVEN BY A LAWYER NEWLY APPOINTED ON APPEAL, WITHOUT MORE
TRANSCRIPT THAN IS PRESENTLY PROVIDED.  IT WOULD HAVE THE LAWYER
CONDUCT AN INVESTIGATION, INCLUDING INTERVIEWS WITH THE TRIAL JUDGE,
THE PROSECUTING ATTORNEY AND THE TRIAL DEFENSE COUNSEL, IN AN EFFORT TO
RECONSTRUCT THE EVENTS OF THE TRIAL.  AT BEST, HOWEVER, THIS IS A POOR
SUBSTITUTE FOR A TRANSCRIPT IN DISCLOSING POSSIBLE ERROR.  MOREOVER, A
LAWYER APPOINTED TO REPRESENT THE INTERESTS OF A DEFENDANT SHOULD NOT
BE REQUIRED TO DELEGATE HIS RESPONSIBILITY OF DETERMINING WHETHER ERROR
OCCURRED AT TRIAL TO PARTICIPANTS AT THAT TRIAL WHOSE CONDUCT MAY HAVE
FORMED THE VERY BASIS FOR THE ERRORS.  FINALLY, THIS INTERVIEW
REQUIREMENT IS UNDULY BURDENSOME ON THE APPOINTED LAWYERS WHO ARE
REQUIRED TO SERVE WITHOUT COMPENSATION.  AS THE ATTORNEY GENERAL'S
COMMITTEE ON POVERTY AND THE ADMINISTRATION OF CRIMINAL JUSTICE
RECENTLY OBSERVED:  "IT IS NOT FAR FROM THE TRUTH TO SAY THAT THE
FEDERAL SYSTEM SEEKS TO AVOID THE EXPENSES OF SUPPLYING TRANSCRIPTS TO
ALL FINANCIALLY DISADVANTAGED DEFENDANTS DESIRING TO APPEAL BY SHIFTING
THE BURDENS TO LAWYERS REQUIRED TO SERVE WITHOUT COMPENSATION OR
REIMBURSEMENT OF EXPENSES."  (FN8) 

I CONCLUDE, THEREFORE, THAT THE INTERESTS OF EQUAL JUSTICE AND THE
VIABILITY OF OUR ADVERSARY SYSTEM (FN9) ARE IMPAIRED WHEN AN INDIGENT
DEFENDANT'S ACCESS TO A TRIAL TRANSCRIPT IS NOT AS COMPLETE AS THAT OF
A PAYING DEFENDANT.  THIS "CONCEPT OF 'EQUAL JUSTICE' DOES NOT CONFUSE
EQUALITY OF TREATMENT WITH IDENTITY OF TREATMENT."  (FN10) IT DOES,
HOWEVER, REQUIRE THE GOVERNMENT TO DO "ALL THAT CAN REASONABLY BE
REQUIRED OF IT TO ELIMINATE THOSE FACTORS THAT INHIBIT THE PROPER AND
EFFECTIVE ASSERTION" OF THE DEFENDANT'S CLAIMS.  (FN11) 

PROVIDING A COMPLETE TRANSCRIPT TO ALL DEFENDANTS WHO CANNOT AFFORD
TO PURCHASE ONE WILL NOT CREATE AN UNDUE FINANCIAL BURDEN ON THE
GOVERNMENT.  STATISTICS FOR THE LAST THREE YEARS FOR WHICH FIGURES ARE
AVAILABLE INDICATE THAT ALMOST 90% OF THE CRIMINAL TRIALS IN THE
DISTRICT OF COLUMBIA LASTED THREE DAYS OR LESS AND THAT A "TRANSCRIPT
OF A THREE-DAY TRIAL WILL GENERALLY COST LESS THAN $200 TO PREPARE  ...
."  (FN12)  THE GOVERNMENT INFORMS US THAT ITS PRESENT PRACTICE IN THE
DISTRICT OF COLUMBIA IS NOT TO OPPOSE THE PREPARATION OF TRANSCRIPTS
WHICH COST $200 OR LESS TO PREPARE.  IT SEEMS LIKELY, THEREFORE, THAT A
SYSTEM OF FREE TRANSCRIPTS WILL, IN THE LONG RUN, BE LESS EXPENSIVE
THAN THE PRESENT SYSTEM WITH ITS MULTIPLE PROCEEDINGS AND FREQUENT
DELAYS.  (FN13) MOREOVER, THE FINANCIAL COSTS ARE RELATIVELY
UNIMPORTANT WHEN COMPARED WITH THE UNNECESSARY HARDSHIP TO DEFENDANTS,
MANY OF WHOM ARE INCARCERATED DURING THEIR ATTEMPTS TO SECURE APPELLATE
REVIEW BECAUSE OF THEIR INABILITY TO RAISE THE NECESSARY BAIL.  (FN14)
I AGREE WITH JUDGE LEARNED HAND: "IF WE ARE TO KEEP OUR DEMOCRACY,
THERE MUST BE ONE COMMANDMENT:  THOU SHALT NOT RATION JUSTICE." 
(FN15) 

FINALLY, THE FOREGOING DISCUSSION LEADS ME TO THE ULTIMATE CONCLUSION
THAT THE CAUSE OF EQUAL JUSTICE IS UNDULY HINDERED BY THE CUMBERSOME
OBSTACLES TO APPEAL WHICH HAVE BEEN ERECTED BY THE PROCEDURE FOR
SCREENING FRIVOLOUS ATTEMPTS TO APPEAL IN FORMA PAUPERIS.  I AGREE,
THEREFORE, WITH MY BROTHERS STEWART AND BRENNAN, IN THEIR CONCURRING
OPINION IN COPPEDGE, 369 U.S., AT 458, THAT "EACH COURT OF APPEALS
MIGHT WELL CONSIDER WHETHER ITS TASK COULD NOT BE MORE EXPEDITIOUSLY
AND RESPONSIBLY PERFORMED BY SIMPLY" ELIMINATING THE ENTIRE PROCESS FOR
SCREENING IN FORMA PAUPERIS APPEALS AND BY TREATING SUCH APPEALS IN THE
SAME MANNER AS PAID APPEALS ARE NOW TREATED.  (FN16) SINCE "NO A PRIORI
JUSTIFICATION CAN BE FOUND FOR CONSIDERING (IN FORMA PAUPERIS APPEALS),
AS A CLASS, TO BE MORE FRIVOLOUS THAN THOSE IN WHICH COSTS HAVE BEEN
PAID,"  ID., AT 449, IT WOULD SEEM TO FOLLOW THAT NO JUSTIFICATION
EXISTS FOR ERECTING ARTIFICIAL BARRIERS TO APPEAL FOR INDIGENT
DEFENDANTS, "PARTICULARLY SINCE THESE LITIGANTS  ...  MAY, IN THE TRIAL
COURT, HAVE SUFFERED DISADVANTAGES IN THE DEFENSE OF THEIR CASES
INHERENT IN THEIR IMPECUNIOUS CONDITION  ...  ."  ID., AT 450.  (FN17)
HOWEVER, AS LONG AS THE COURTS OF APPEALS CONTINUE TO REQUIRE A
PRELIMINARY SHOWING BEFORE GRANTING AN INDIGENT LEAVE TO APPEAL, WE CAN
DO NO LESS THAN REQUIRE, UNDER OUR SUPERVISORY POWER, THAT A FULL
TRANSCRIPT BE MADE AVAILABLE, WITHOUT LIMITATION, TO THE LAWYER
APPOINTED TO HELP MAKE THAT SHOWING. 

FN1  RULE 39(D) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES
THAT: 

"UNLESS GOOD CAUSE IS SHOWN FOR AN EARLIER HEARING, THE APPELLATE
COURT SHALL SET THE APPEAL FOR ARGUMENT ON A DATE NOT LESS THAN 30 DAYS
AFTER THE FILING IN THAT COURT OF THE RECORD ON APPEAL AND AS SOON
AFTER THE EXPIRATION OF THAT PERIOD AS THE STATE OF THE CALENDAR WILL
PERMIT.  PREFERENCE SHALL BE GIVEN TO APPEALS IN CRIMINAL CASES OVER
APPEALS IN CIVIL CASES." 

FN2  SEE PANNELL V. UNITED STATES, 115 U.S. APP. D.C. 379, 320 F.2D
698; COMMITTEE ON THE ADMINISTRATION OF BAIL OF THE JUNIOR BAR SECTION
OF THE BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA, REPORT ON THE BAIL
SYSTEM OF THE DISTRICT OF COLUMBIA (1963). 

FN3  PERMITTING THE TRIAL LAWYER TO WITHDRAW AT THAT STAGE PROBABLY
REFLECTS A RECOGNITION BOTH OF THE BURDEN OF SERVING AS UNCOMPENSATED
TRIAL COUNSEL AND OF THE DIFFERENT SKILLS OFTEN POSSESSED BY TRIAL AND
APPELLATE LAWYERS.  BY NOTING THE EXISTENCE OF A HIATUS IN
REPRESENTATION AT SUCH A CRITICAL PERIOD, I DO NOT INTEND TO SIGNIFY
APPROVAL. 

THE ATTORNEY GENERAL'S COMMITTEE ON POVERTY AND THE ADMINISTRATION OF
FEDERAL CRIMINAL JUSTICE DESCRIBED THIS PHASE OF THE PROCESS AS
FOLLOWS:  "THE CONVICTED DEFENDANT MUST FILE A NOTICE OF APPEAL WITHIN
TEN DAYS AFTER THE ENTRY OF THE JUDGMENT, IF THE RIGHT TO APPEAL IS TO
BE PRESERVED.  SINCE AN ASSIGNED COUNSEL UNDER PRESENT PRACTICES OFTEN
DOES NOT CONCEIVE IT TO BE PART OF HIS OBLIGATIONS TO ADVISE THE
DEFENDANT OF HIS RIGHT TO APPEAL OR TO ASSIST IN PERFECTING THAT RIGHT,
AND SINCE MANY DISTRICT COURTS DO NOT ROUTINELY ADVISE THE DEFENDANT OF
HIS APPEAL RIGHTS, SOME FINANCIALLY DISADVANTAGED DEFENDANTS, BECAUSE
OF THEIR IGNORANCE OF THE JURISDICTIONAL REQUIREMENTS, IRREVOCABLY LOSE
THEIR RIGHTS TO APPEAL.  THE DEFENDANT WHO IS UNABLE TO PAY THE COSTS
OF A TRIAL TRANSCRIPT OR TO PAY COURT COSTS IS REQUIRED TO APPLY FOR
LEAVE TO APPEAL IN FORMA PAUPERIS.  THE APPLICATION, WHICH IS IN
AFFIDAVIT FORM, CONTAINS ALLEGATIONS OF FINANCIAL INCAPACITY AND THE
REASONS RELIED ON BY DEFENDANT TO OBTAIN REDRESS IN THE APPELLATE
COURTS.  BECAUSE NORMALLY NO PROVISION IS MADE FOR COUNSEL AT THIS
STAGE OF THE PROCEEDINGS, THE APPLICATION IS OFTEN INEXPERTLY PREPARED
AND CONCEIVED, FREQUENTLY RESULTING IN INJURY TO THE DEFENDANT'S
INTERESTS AND TO THE SOUND ADMINISTRATION OF JUSTICE."  ATTORNEY
GENERAL'S COMMITTEE ON POVERTY AND THE ADMINISTRATION OF FEDERAL
CRIMINAL JUSTICE (1963), 100 (HEREINAFTER CITED AS ATTORNEY GENERAL'S
REPORT). 

FN4  IN THE DISTRICT OF COLUMBIA, MANY LAWYERS CHOSE THIS COURSE AND,
AT LEAST UNTIL RECENTLY, LEAVE TO WITHDRAW WAS FREELY GRANTED. 

FN5  SEE, E.G., TATUM V. UNITED STATES, 88 U.S. APP. D.C. 386, 190
F.2D 612; DURHAM V. UNITED STATES, 94 U.S. APP. D.C. 228, 214 F.2D 862;
UNITED STATES V. CURRENS, 290 F.2D 751; MCDONALD V. UNITED STATES, 114
U.S. APP. D.C. 120, 312 F.2D 847; MILLER V. UNITED STATES, 116 U.S.
APP. D.C. 45, 320 F.2D 767. 

FN6  UNDER THE PRACTICE NOW PREVAILING, PROBLEMS RELATING TO
TRANSCRIPTS MAY ARISE BOTH BEFORE AND AFTER LEAVE TO APPEAL IN FORMA
PAUPERIS IS GRANTED.  IF COUNSEL WERE PROVIDED WITH A COMPLETE
TRANSCRIPT UPON BEING APPOINTED TO PREPARE THE MEMORANDUM IN SUPPORT OF
THE APPLICATION TO APPEAL IN FORMA PAUPERIS, THE PROBLEM OF SUPPLYING
ADDITIONAL PORTIONS OF THE TRANSCRIPT AFTER LEAVE IS GRANTED WOULD
BECOME MOOT. 

FN7  INDIGENCE "MUST BE CONCEIVED AS A RELATIVE CONCEPT.  AN
IMPOVERISHED ACCUSED IS NOT NECESSARILY ONE TOTALLY DEVOID OF MEANS." 
ATTORNEY GENERAL'S REPORT, AT 8.  AN ACCUSED MUST BE DEEMED INDIGENT
WHEN "AT ANY STAGE OF THE PROCEEDINGS HIS LACK OF MEANS  ...
SUBSTANTIALLY INHIBITS OR PREVENTS THE PROPER ASSERTION OF A PARTICULAR
RIGHT OR CLAIM OF RIGHT."  IBID.  INDIGENCE MUST BE DEFINED WITH
REFERENCE TO THE PARTICULAR RIGHT ASSERTED.  THUS, THE FACT THAT A
DEFENDANT MAY BE ABLE TO MUSTER ENOUGH RESOURCES, OF HIS OWN OR OF A
FRIEND OR RELATIVE, TO OBTAIN BAIL DOES NOT IN ITSELF ESTABLISH HIS
NONINDIGENCE FOR THE PURPOSE OF PURCHASING A COMPLETE TRIAL TRANSCRIPT
OR RETAINING A LAWYER. 

FN8  ATTORNEY GENERAL'S REPORT, AT 102. 

FN9  ID., AT 10-11:  "THE ESSENCE OF THE ADVERSARY SYSTEM IS
CHALLENGE.  THE SURVIVAL OF OUR SYSTEM OF CRIMINAL JUSTICE AND THE
VALUES WHICH IT ADVANCES DEPENDS UPON A CONSTANT, SEARCHING, AND
CREATIVE QUESTIONING OF OFFICIAL DECISIONS AND ASSERTIONS OF AUTHORITY
AT ALL STAGES OF THE PROCESS.   THE PROPER PERFORMANCE OF THE DEFENSE
FUNCTION IS THUS AS VITAL TO THE HEALTH OF THE SYSTEM AS THE
PERFORMANCE OF THE PROSECUTING AND ADJUDICATORY FUNCTIONS.  IT FOLLOWS
THAT INSOFAR AS THE FINANCIAL STATUS OF THE ACCUSED IMPEDES VIGOROUS
AND PROPER CHALLENGES, IT CONSTITUTES A THREAT TO THE VIABILITY OF THE
ADVERSARY SYSTEM.  WE BELIEVE THAT THE SYSTEM IS IMPERILED BY THE LARGE
NUMBERS OF ACCUSED PERSONS UNABLE TO EMPLOY COUNSEL OR TO MEET EVEN
MODEST BAIL REQUIREMENTS AND BY THE LARGE, BUT INDETERMINATE, NUMBERS
OF PERSONS, ABLE TO PAY SOME PART OF THE COSTS OF DEFENSE, BUT UNABLE
TO FINANCE A FULL AND PROPER DEFENSE.  PERSONS SUFFERING SUCH
DISABILITIES ARE INCAPABLE OF PROVIDING THE CHALLENGES THAT ARE
INDISPENSABLE TO SATISFACTORY OPERATION OF THE SYSTEM.  THE LOSS TO THE
INTERESTS OF ACCUSED INDIVIDUALS, OCCASIONED BY THESE FAILURES, IS
GREAT AND APPARENT.  IT IS ALSO CLEAR THAT A SITUATION IN WHICH PERSONS
ARE REQUIRED TO CONTEST A SERIOUS ACCUSATION BUT ARE DENIED ACCESS TO
THE TOOLS OF CONTEST IS OFFENSIVE TO FAIRNESS AND EQUITY.  BEYOND THESE
CONSIDERATIONS, HOWEVER, IS THE FACT THAT THE CONDITIONS PRODUCED BY
THE FINANCIAL INCAPACITY OF THE ACCUSED ARE DETRIMENTAL TO THE PROPER
FUNCTIONING OF THE SYSTEM OF JUSTICE AND THAT THE LOSS IN VITALITY OF
THE ADVERSARY SYSTEM, THEREBY OCCASIONED, SIGNIFICANTLY ENDANGERS THE
BASIC INTERESTS OF A FREE COMMUNITY." 

FN10  ID., AT 9. 

FN11  IBID. 

FN12  SPECIAL COMMITTEE OF THE JUNIOR BAR SECTION OF THE BAR
ASSOCIATION OF THE DISTRICT OF COLUMBIA, REPORT TO THE ATTORNEY
GENERAL'S COMMITTEE ON POVERTY AND THE ADMINISTRATION OF FEDERAL
CRIMINAL JUSTICE, REPRINTED IN BRIEF OF THE BAR ASSOCIATION OF THE
DISTRICT OF COLUMBIA AS AMICUS CURIAE, AT A-9, A-16. 

FN13  THE ATTORNEY GENERAL'S COMMITTEE ON POVERTY AND THE
ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE MADE THE FOLLOWING
OBSERVATION CONCERNING THE REAL COST OF THE PRESENT SYSTEM:  "THE
COMMITTEE BELIEVES THAT PROPER EVALUATION OF COMPARATIVE COSTS REQUIRES
THAT ATTENTION BE DIRECTED TO THE 'HIDDEN COSTS' OF THE PRESENT
SYSTEM.  FIRST THERE ARE THE COSTS IN JUDICIAL TIME IN THE DISTRICT
COURTS AND COURTS OF APPEALS, JUST NOTED, THAT RESULT FROM THE
ADMINISTRATION OF THE PRESENT SYSTEM.  SECOND ARE THE COSTS IN THE TIME
OF PUBLIC OFFICIALS REQUIRED TO BE INTERVIEWED BY ASSIGNED COUNSEL IN
HIS EFFORT TO ESTABLISH A RECORD OR TO JUSTIFY THE ORDERING OF A
TRANSCRIPT IN PROCEEDINGS INVOLVING LEAVE TO APPEAL IN FORMA PAUPERIS. 
THIRD ARE THE COSTS OF TIME, EFFORT, AND EXPENSE OF ASSIGNED COUNSEL. 
THE PRESENT SYSTEM IS ABLE TO FUNCTION AT ALL ONLY BY SHIFTING A LARGE
PART OF THE BURDENS OF THE SYSTEM ON LAWYERS WHO ARE REQUIRED TO SERVE
WITHOUT COMPENSATION OR REIMBURSEMENT.  IT SHOULD BE CAREFULLY NOTED
THAT IN A SYSTEM OF ADEQUATE REPRESENTATION INVOLVING THE USE OF
COMPENSATED COUNSEL THE SHIFTING OF MANY OF THESE BURDENS TO COUNSEL
WILL NO LONGER BE POSSIBLE.  IN MANY CASES THE PROVISION OF A
TRANSCRIPT AT THE OUTSET OF THE APPELLATE PROCESS WILL INVOLVE
SUBSTANTIALLY LESS EXPENSE TO THE GOVERNMENT THAN THE PAYMENT OF
ATTORNEYS' FEES FOR TIME SPENT BY COUNSEL IN AN EFFORT TO SETTLE A
RECORD FOR DISPOSITION OF THE APPLICATION TO APPEAL IN FORMA PAUPERIS
AND IN OTHER PROCEEDINGS MADE NECESSARY BY THE PRESENT SYSTEM.  FOURTH,
A SYSTEM THAT OBSTRUCTS ACCESS TO DIRECT REVIEW IS LIKELY TO ENCOURAGE
RESORT BY PRISONERS TO COLLATERAL ATTACK ON THEIR CONVICTIONS AND
SENTENCES WITH LOSSES OF TIME AND MONEY THEREBY OCCASIONED.  SUCH HAS
BEEN THE UNIFORM EXPERIENCE OF STATE SYSTEMS OF CRIMINAL JUSTICE." 
ATTORNEY GENERAL'S REPORT, AT 114. 

THE BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA, IN THEIR BRIEF
AMICUS CURIAE, STATE THAT "ON THE BASIS OF THEIR EXPERIENCE AS
APPOINTED COUNSEL, THEY BELIEVE STRONGLY THAT PROVIDING A TRIAL
TRANSCRIPT IN EVERY CASE WILL SIGNIFICANTLY REDUCE THE NUMBER OF
COLLATERAL ATTACK PROCEEDINGS UNDER 28 U.S.C. 2255, HABEAS CORPUS, OR
CORAM NOBIS."  THE ATTORNEY GENERAL'S REPORT ALSO POINTS OUT "THE FACT
THAT THE FREE ACCESSIBILITY AND QUALITY OF APPELLATE REVIEW HAS REDUCED
COLLATERAL ATTACKS ON SENTENCES IMPOSED BY COURTS MARTIAL (WHERE THE
'RECORD IS SUPPLIED THE DEFENDANT AT GOVERNMENT EXPENSE') TO AN
ABSOLUTE MINIMUM."  ATTORNEY GENERAL'S REPORT, AT 109.  THUS, THE
AUTOMATIC PROVISION OF FREE TRANSCRIPTS TO ALL FEDERAL CRIMINAL
DEFENDANTS WHO CANNOT AFFORD TO PURCHASE THEM WOULD SEEM TO BE ENTIRELY
CONSISTENT WITH THE SPIRIT OF OUR RECENT DECISION IN BARTONE V. UNITED
STATES, 375 U.S. 52, WHERE THE COURT OBSERVED THAT "IT IS MORE
APPROPRIATE, WHENEVER POSSIBLE, TO CORRECT ERRORS REACHABLE BY THE
APPEAL RATHER THAN REMIT THE PARTIES TO A NEW COLLATERAL PROCEEDING." 
ID., AT 54. 

FN14  THE RECENT CASE OF WILLIAM H. KEMP, ARISING IN THE DISTRICT OF
COLUMBIA, ILLUSTRATES THE COMPLEXITY OF THE IN FORMA PAUPERIS
PROCEDURES, THE ATTENDANT DELAYS, AND THE RESULTING INJURIES TO THE
ACCUSED.  THE PROCEDURAL HISTORY OF THE CASE, AS COMPILED BY THE
ATTORNEY GENERAL'S COMMITTEE ON POVERTY AND THE ADMINISTRATION OF
FEDERAL CRIMINAL JUSTICE, FOLLOWS: 

1960, DEC. 13         JOINT INDICTMENT WITH ONE GRAY FOR THE CRIME OF
HOUSEBREAKING,

                    PETTY LARCENY, AND UNAUTHORIZED USE OF
VEHICLE.  CRIM. NO. 1033-60. 

    DEC. 16         KEMP PLEADED NOT GUILTY. 

1961, FEB. 3          GRAY CONVICTED OF ALL THREE COUNTS; KEMP
ACQUITTED OF HOUSEBREAKING AND

                    LARCENY, CONVICTED OF UNAUTHORIZED USE OF MOTOR
VEHICLE. 

    MAR. 17         JUDGMENT ENTERED SENTENCING KEMP TO
IMPRISONMENT FOR A PERIOD OF ONE

                    TO THREE YEARS. 

MAR. 21         KEMP'S APPLICATION TO PROCEED ON APPEAL WITHOUT
PREPAYMENT OF COSTS

                    WAS DENIED AS PLAINLY FRIVOLOUS AND NOT TAKEN
IN GOOD FAITH. 

    APR. 17         APPLICATION TO PROCEED ON APPEAL WITHOUT
PREPAYMENT OF COSTS FILED

                    IN THE COURT OF APPEALS. 

    MAY 18          APPLICATION FOR LEAVE TO APPEAL DENIED BY A
PANEL OF THE COURT

                    OF APPEALS, ONE JUDGE DISSENTING. 

    JUNE 1          PETITION FOR REHEARING EN BANC FILED. 

    JUNE 15         PETITION FOR REHEARING EN BANC DENIED, TWO
JUDGES NOTING THAT THEY

             WOULD GRANT THE PETITION. 

    JULY 14      PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND PETITION FOR

                    WRIT OF CERTIORARI FILED IN THE SUPREME COURT
OF THE UNITED STATES. 

NO. 311, MISC. 

1962, MAY 14          MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND PETITION FOR

CERTIORARI GRANTED; JUDGMENT VACATED AND CASE REMANDED FOR
CONSIDERATION

                    IN LIGHT OF COPPEDGE. 

    JULY 18         PER CURIAM ORDER IN COURT OF APPEALS DIRECTING
THAT PETITIONER BE

                    ALLOWED TO APPEAL WITHOUT PREPAYMENT OF COSTS
AND WITH TRANSCRIPT

             AT GOVERNMENT EXPENSE. 

    DEC. 13   PER CURIAM REVERSAL AND REMAND WITH DIRECTIONS TO
ENTER A JUDGMENT

                    N.O.V. AND DISCHARGE OF APPELLANT. 

KEMP WAS ARRESTED ON NOVEMBER 24, 1960.  AT THE TIME OF THE OPINION
ORDERING HIS RELEASE, HE HAD BEEN CONFINED WELL OVER TWO YEARS. 
ATTORNEY GENERAL'S REPORT, AT 103-104. 

FN15 ADDRESS BEFORE LEGAL AID SOCIETY OF NEW YORK, FEB. 16, 1951. 

EVEN IF I WERE TO ASSUME, AS THE GOVERNMENT ARGUES, THAT REQUIRING
THE PROVISION OF FREE SERVICES FOR INDIGENTS MAY SOMETIMES HAVE THE
EFFECT OF PLACING THEM IN A MORE ADVANTAGEOUS POSITION THAN THAT OF THE
DEFENDANT WHO, WHILE NOT INDIGENT, HAS LIMITED FINANCIAL RESOURCES, THE
ANSWER TO THIS PROBLEM WOULD NOT BE TO DENY THE MEANS OF AN EFFECTIVE
APPEAL TO THE FORMER; IT WOULD BE TO MAKE SUCH MEANS MORE EASILY
AVAILABLE TO THE LATTER, BY BROADENING THE CONCEPT OF "INDIGENCY," SEE
NOTE 7, SUPRA, BY ADOPTING A SYSTEM WHEREBY THE ACCUSED PAYS WHAT HE
CAN AFFORD AND THE GOVERNMENT PAYS THE REST, OR BY PROVIDING SOME OR
ALL OF THESE RESOURCES FREELY TO ANYONE WHO REQUESTS THEM REGARDLESS OF
FINANCIAL ABILITY.  SEE NOTE 13, SUPRA. 

FN16  "THE GOVERNMENT WOULD THEN BE FREE IN ANY CASE TO FILE BEFORE
ARGUMENT A MOTION TO DISMISS THE APPEAL AS FRIVOLOUS, AS EVERY APPELLEE
IS ALWAYS FREE TO DO."  COPPEDGE V. UNITED STATES, 369 U.S., AT 458. 

FN17  ATTORNEY GENERAL'S REPORT, AT 113-114:  "THE COMMITTEE BELIEVES
THAT THE PRESENT PRACTICES ARE LARGELY SELF-DEFEATING AND THAT THEY CAN
BE ABANDONED WITHOUT CREATING UNMANAGEABLE BURDENS OF COSTS OR
NECESSITATING UNDUE EXPENDITURES OF JUDICIAL TIME.  EVERY JUSTIFICATION
OF THE PRESENT PRACTICES WHICH HAS COME TO THE COMMITTEE'S ATTENTION IS
PREDICATED ON THE ASSUMPTION THAT THE SCREENING PROCEDURES ARE REQUIRED
TO PREVENT AN INUNDATION OF FRIVOLOUS APPEALS AND THAT THE INCREASES IN
THE NUMBER OF APPEALS WILL RESULT IN LARGE MONETARY COSTS TO THE
GOVERNMENT AND IN SUBSTANTIAL BURDENS ON ADJUDICATION IN THE COURTS OF
APPEALS.  WE BELIEVE THAT EVEN IF THESE FEARS WERE SUBSTANTIAL, SUCH
CONSIDERATIONS ARE NOT ENTITLED TO BE GIVEN DECISIVE WEIGHT BY A SYSTEM
OF CRIMINAL JUSTICE DEDICATED TO THE OBJECTIVE OF FULL AND EQUAL
JUSTICE TO ALL ACCUSED PERSONS AND TO THE PROPER AND VIGOROUS OPERATION
OF THE ADVERSARY SYSTEM.  THE COMMITTEE NOTES, HOWEVER, THAT MANY
AMERICAN STATES - SOME SUFFICIENTLY POPULOUS TO PROVIDE REASONABLE
COMPARISONS WITH THE FEDERAL SYSTEM OF JUSTICE - HAVE GRANTED
FINANCIALLY DISADVANTAGED DEFENDANTS FULL ACCESS TO APPELLATE REVIEW
WITHOUT EXPERIENCING BURDENS APPROACHING THE MAGNITUDE OF THOSE
SOMETIMES PREDICTED AS THE CONSEQUENCE OF SIMILAR MEASURES IN THE
FEDERAL COURTS.  WE BELIEVE, ALSO, THAT FORECASTS OF INORDINATE BURDENS
DO NOT TAKE ADEQUATE ACCOUNT OF THE FACT THAT THE PROLIFERATION OF
MOTIONS AND PETITIONS PRODUCED BY PRESENT PRACTICE IS HIGHLY EXPENSIVE
OF JUDICIAL TIME." 

MR. JUSTICE CLARK, CONCURRING IN THE RESULT. 

A HALF DOZEN YEARS AGO, 28 U.S.C. SEC. 1915 CLEARLY DIRECTED THAT NO
INDIGENT APPEAL MAY BE TAKEN "IF THE TRIAL COURT CERTIFIES IN WRITING
THAT IT IS NOT TAKEN IN GOOD FAITH."  THE WORDS OF THE STATUTE ARE
IDENTICAL TODAY BUT THE COURT'S INTERPRETATIONS HAVE STRIPPED THEM OF
THE APPARENT CONGRESSIONAL MEANING.  IN JOHNSON V. UNITED STATES, 352
U.S. 565 (1957), WE SAID THAT COUNSEL MUST BE APPOINTED TO REPRESENT AN
INDIGENT WHO WISHES TO CONTEST THE VALIDITY OF A CERTIFICATE UNDER SEC.
1915 AND THAT SUCH COUNSEL MUST BE "ENABLED TO SHOW THAT THE GROUNDS
FOR SEEKING AN APPEAL FROM THE JUDGMENT OF CONVICTION ARE NOT FRIVOLOUS
AND DO NOT JUSTIFY THE FINDING THAT THE APPEAL IS NOT SOUGHT IN GOOD
FAITH."  AT 566.  IN FARLEY V. UNITED STATES, 354 U.S. 521 (1957),
COUNSEL FOR THE INDIGENT CLAIMED THAT THE EVIDENCE WAS INSUFFICIENT TO
JUSTIFY THE CONVICTION, AND THIS COURT REQUIRED A TRANSCRIPT TO BE
FURNISHED ON THAT POINT.  A YEAR LATER IN ELLIS V. UNITED STATES, 356
U.S. 674 (1958), IT APPEARED THAT COUNSEL APPOINTED BY THE COURT OF
APPEALS "PERFORMED ESSENTIALLY THE ROLE OF AMICI CURIAE," AT 675, AND
THE COURT HELD THAT "REPRESENTATION IN THE ROLE OF AN ADVOCATE IS
REQUIRED," IBID., VACATING THE JUDGMENT ON THE CONCESSION OF THE
SOLICITOR GENERAL THAT THE QUESTION OF PROBABLE CAUSE RAISED BY
PETITIONER COULD NOT NECESSARILY BE CALLED FRIVOLOUS.  IN 1962 IN
COPPEDGE V. UNITED STATES, 369 U.S. 438, THE COURT HELD:    "IT IS NOT
THE BURDEN OF THE PETITIONER TO SHOW THAT HIS APPEAL HAS MERIT, IN THE
SENSE THAT HE IS BOUND, OR EVEN LIKELY, TO PREVAIL ULTIMATELY.  HE IS
TO BE HEARD, AS IS ANY APPELLANT IN A CRIMINAL CASE, IF HE MAKES A
RATIONAL ARGUMENT ON THE LAW OR FACTS.  IT IS THE BURDEN OF THE
GOVERNMENT, IN OPPOSING AN ATTEMPTED CRIMINAL APPEAL IN FORMA PAUPERIS,
TO SHOW THAT THE APPEAL IS LACKING IN MERIT, INDEED, THAT IT IS SO
LACKING IN MERIT THAT THE COURT WOULD DISMISS THE CASE ON MOTION OF THE
GOVERNMENT, HAD THE CASE BEEN DOCKETED AND A RECORD BEEN FILED BY AN
APPELLANT ABLE TO AFFORD THE EXPENSE OF COMPLYING WITH THOSE
REQUIREMENTS."  AT 448. 

TODAY WE ARE FACED WITH THE QUESTION WHETHER COUNSEL, APPOINTED ON AN
APPEAL TO REPRESENT AN INDIGENT, BUT NOT PRESENT AT THE TRIAL OF THE
CASE IN THE DISTRICT COURT, IS ENTITLED TO A FULL TRANSCRIPT SO AS TO
ENABLE HIM TO DETERMINE WHETHER PLAIN ERROR OR DEFECTS AFFECTING
SUBSTANTIAL RIGHTS OCCURRED DURING THE TRIAL.  AS I SEE THE PROBLEM,
THE GOVERNMENT HAS NOT MET THE BURDEN PLACED UPON IT BY THE ABOVE
LANGUAGE IN COPPEDGE, NAMELY TO SUSTAIN THE FRIVOLITY OF THE APPEAL,
INSOFAR AS PLAIN ERROR IS CONCERNED.  IT APPEARS TO ME THAT THE
GOVERNMENT MUST FURNISH THE FULL TRANSCRIPT IN ORDER TO ENABLE
PETITIONER'S NEW COUNSEL TO DETERMINE WHETHER PLAIN ERROR OCCURRED
DURING THE TRIAL, AND LIKEWISE TO ENABLE THE COURT OF APPEALS TO PASS
UPON THE POINT. 

WHILE I DISSENTED IN COPPEDGE AS WELL AS FARLEY, I FEEL BOUND BY
THEIR HOLDINGS AND THEREFORE CONCUR IN THE RESULT HERE.  IN SO DOING, I
TRUST THAT WHEN CONGRESS ADOPTS THE CRIMINAL JUSTICE ACT OR SIMILAR
LEGISLATION* WHICH PROVIDES COMPENSATION FOR COUNSEL REPRESENTING
INDIGENTS, THE SAME COUNSEL WHO TRIED THE CASE IN THE DISTRICT COURT
WILL BE APPOINTED IN THE COURT OF APPEALS. 

*S. 1057, THE PROPOSED CRIMINAL JUSTICE ACT, WAS PASSED BY THE SENATE
AUGUST 6, 1963.  THE JUDICIARY COMMITTEE OF THE HOUSE OF
REPRESENTATIVES AND THE RULES COMMITTEE REPORTED FAVORABLY A COMPROMISE
BILL, H.R. 7457, AND ON DECEMBER 10, 1963, THE HOUSE VOTED TO TAKE UP
THE LEGISLATION ON THE FLOOR. 

MR. JUSTICE HARLAN, DISSENTING. 

I THINK THE COURT SHOULD NOT, IN THE NAME OF EXERCISING ITS
SUPERVISORY POWERS, ENGRAFT THIS FURTHER REQUIREMENT ON 28 U.S.C. SEC.
1915.  (FN1)  THE HOLDING IS THAT AN INDIGENT CONVICT WHO - FOLLOWING
THE TRIAL COURT'S CERTIFICATION THAT HIS APPEAL WAS FRIVOLOUS AND NOT
TAKEN IN GOOD FAITH - HAS RECEIVED AT THE DIRECTION OF THE COURT OF
APPEALS A FREE COPY OF THAT PORTION OF THE TRIAL TRANSCRIPT GERMANE TO
THE ERRORS ASSERTED AS GROUNDS FOR APPEAL, IS ENTITLED AS OF RIGHT TO A
FREE COPY OF THE BALANCE OF THE TRANSCRIPT IF HIS APPELLATE COUNSEL WAS
NOT THE LAWYER WHO REPRESENTED HIM AT THE TRIAL.  THE THEORY IS THAT
THIS IS NECESSARY TO ENABLE THE NEW LAWYER TO DISCOVER POSSIBLE "PLAIN
ERROR." 

FOUR MEMBERS OF THE COURT WOULD GO FURTHER.  THEY WOULD FURNISH
COMPLETE TRANSCRIPTS AS A MATTER OF COURSE TO ALL INDIGENT APPELLANTS,
WHETHER OR NOT REPRESENTED AT THE APPELLATE STAGE BY THE SAME LAWYER
WHO ACTED FOR THEM AT THE TRIAL.  ANTE, P. 288.  AND RECOGNIZING THAT
ANY INDIGENT RECEIVING SUCH A TRANSCRIPT IS THUS ADVANTAGED OVER AN
APPELLANT WHO HAS TO PAY FOR HIS TRANSCRIPT, THEY GO ON TO SUGGEST THAT
FAIRNESS MAY REQUIRE THAT APPELLANTS WHO ARE NOT INDIGENT, BUT
IMPOVERISHED, SHOULD BE FURNISHED FREE TRANSCRIPTS TO THE EXTENT THAT
THEY CANNOT AFFORD TO PAY FOR THEM.  ANTE, P. 289, N. 7.  ALTHOUGH THE
MAJORITY OPINION STOPS SHORT OF BOTH OF THESE PROPOSITIONS, GIVEN WHAT
IS NOW DONE CAN IT BE SAID THAT THESE MORE EXPANSIVE POSITIONS ARE
WITHOUT FORCE?  BE THAT AS IT MAY, THE COURT HAS TAKEN A LONG STEP IN
DEROGATION OF THE HITHERTO CONSISTENTLY MAINTAINED VIEW, BOTH IN
FEDERAL AND STATE CRIMINAL CASES, THAT AN INDIGENT DEFENDANT IS NOT
AUTOMATICALLY ENTITLED TO A FREE TRANSCRIPT SIMPLY BECAUSE THOSE
ECONOMICALLY BETTER SITUATED CAN OBTAIN THEIR TRANSCRIPTS AT WILL.  SEE
JOHNSON V. UNITED STATES, 352 U.S. 565, 566; GRIFFIN V. ILLINOIS, 351
U.S. 12, 20; ESKRIDGE V. WASHINGTON PRISON BOARD, 357 U.S. 214, 216;
DRAPER V. WASHINGTON, 372 U.S. 487, 495. 

GRANTING THAT SEC. 1915 HAS NOT CAUGHT UP WITH THIS COURT'S RECENT
PRONOUNCEMENTS IN THIS AREA (SEE CONCURRING OPINION OF CLARK, J., ANTE,
PP. 296-298) AND THAT, AS RECOMMENDED IN THE RECENT REPORT OF THE
ATTORNEY GENERAL'S COMMITTEE, (FN2) THE TIME HAS COME FOR A
COMPREHENSIVE OVERHAULING OF THE PROCEDURES GOVERNING IN FORMA PAUPERIS
APPEALS IN THE FEDERAL SYSTEM, I BELIEVE THAT SUCH AN UNDERTAKING IS
MORE APPROPRIATELY TO BE ACCOMPLISHED BY CONGRESSIONAL ACTION, TAKEN IN
COLLABORATION WITH THE JUDICIAL CONFERENCE OF THE UNITED STATES, THAN
BY PIECEMEAL ADJUDICATIONS OF THIS COURT.  ESPECIALLY MEET FOR SUCH A
COURSE IS THE INNOVATION MADE TODAY, A STEP WHICH IN COUNTRYWIDE
APPLICATION AFFECTS THE PUBLIC TREASURY TO AN UNKNOWN DEGREE, AND WHOSE
WISDOM SHOULD NOT BE JUDGED IN THE ABSTRACT OR UPON THE LIMITED DATA
PRESENTLY BEFORE THE COURT. 

A BALANCED SOLUTION OF A PROBLEM HAVING SUCH UNFORESEEABLE
RAMIFICATIONS REQUIRES CONSIDERATION OF THE INFORMED VIEWS OF THOSE ON
THE FIRING LINE OF THE ADMINISTRATION OF CRIMINAL JUSTICE - DISTRICT
JUDGES, CIRCUIT JUDGES, UNITED STATES ATTORNEYS, DEFENSE LAWYERS AND
LEGAL AID SOCIETIES - AND EXPLORATION OF DIFFERING CONDITIONS AMONG THE
CIRCUITS.  IT MIGHT BE CONCLUDED THAT A NATIONWIDE REQUIREMENT OF THIS
SORT WOULD BE UNSOUND, AND THAT THE MATTER IS BEST LEFT FOR DISCRETE
TREATMENT BY THE JUDICIAL COUNCILS IN THE VARIOUS CIRCUITS, SUBJECT OF
COURSE TO CONSTITUTIONAL LIMITATIONS.  REMOTELY SITUATED AS THIS COURT
IS FROM THE DAY-TO-DAY WORKINGS OF THE CRIMINAL SYSTEM, IT SHOULD
HESITATE TO PROMULGATE BLANKET REQUIREMENTS ON THIS SUBJECT BASED
LARGELY UPON THEORETICAL CONSIDERATIONS.  CF. SANDERS V. UNITED STATES,
373 U.S. 1, 23 (DISSENTING OPINION OF THIS WRITER). 

I WOULD DISPOSE OF THIS CASE AS THE GOVERNMENT SUGGESTS BY REMANDING
IT TO THE COURT OF APPEALS FOR FURTHER CONSIDERATION IN LIGHT OF THAT
COURT'S SUBSEQUENT DECISION IN INGRAM V. UNITED STATES, 315 F.2D 29.  I
DO NOT UNDERSTAND THIS COURT'S DECISION TO REST ON CONSTITUTIONAL
GROUNDS, NOR DO I THINK IT WELL COULD. 

FN1  "SEC.  1915.  PROCEEDINGS IN FORMA PAUPERIS. 

"(A)  ANY COURT OF THE UNITED STATES MAY AUTHORIZE THE COMMENCEMENT,
PROSECUTION OR DEFENSE OF ANY SUIT, ACTION OR PROCEEDING, CIVIL OR
CRIMINAL, OR APPEAL THEREIN, WITHOUT PREPAYMENT OF FEES AND COSTS OR
SECURITY THEREFOR, BY A CITIZEN WHO MAKES AFFIDAVIT THAT HE IS UNABLE
TO PAY SUCH COSTS OR GIVE SECURITY THEREFOR.  SUCH AFFIDAVIT SHALL
STATE THE NATURE OF THE ACTION, DEFENSE OR APPEAL AND AFFIANT'S BELIEF
THAT HE IS ENTITLED TO REDRESS. 

"AN APPEAL MAY NOT BE TAKEN IN FORMA PAUPERIS IF THE TRIAL COURT
CERTIFIES IN WRITING THAT IT IS NOT TAKEN IN GOOD FAITH." 

FN2  POVERTY AND THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE,
REPORT OF THE ATTORNEY GENERAL'S COMMITTEE ON POVERTY AND THE
ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE (1963). 
..END :











LINER V. JAFCO, INC. 375 U.S. 301 


NO. 43.  ARGUED NOVEMBER 21, 1963.  - DECIDED JANUARY 6, 1964.  -
REVERSED AND REMANDED. 


THE CHATTANOOGA BUILDING TRADES COUNCIL COMPRISES NUMEROUS BUILDING
TRADES UNIONS, INCLUDING THE HOD-CARRIERS UNION AND ITS LOCAL 846, TWO
OF THE PETITIONERS.  REPONDENT REA CONSTRUCTION CO., A LARGE NORTH
CAROLINA BUILDING CONTRACTOR, WAS ENGAGED BY RESPONDENT JAFCO, INC., AS
GENERAL CONTRACTOR TO ERECT A SHOPPING CENTER ON A SITE IN TENNESSEE. 
REA OPERATED AN OPEN SHOP, AND WORKERS ON THE PROJECT WERE PAID LOWER
WAGES THAN THE UNION SCALE.  THE COUNCIL AUTHORIZED THE HOD-CARRIERS TO
PLACE A PICKET AT THE SITE IN PROTEST, AND PETITIONER LINER BEGAN
PEACEFUL PICKETING, WHEREUPON CONSTRUCTION WORKERS ON THE JOB PROMPTLY
CEASED WORK.  ON THE SAME DAY, JAFCO SOUGHT AN EX PARTE INJUNCTION FROM
A TENNESSEE STATE COURT, WHICH ORDERED THE INJUNCTION TO ISSUE UPON THE
EXECUTION AND FILING OF AN INJUNCTION BOND.  THE NEXT DAY JAFCO FILED A
BOND TO INDEMNIFY PETITIONERS IN DAMAGES IF THE INJUNCTION WAS
"WRONGFULLY" SUED OUT.  PETITIONERS' MOTION IN THE STATE COURT TO
DISSOLVE THE INJUNCTION WAS DENIED; THE INJUNCTION WAS MADE PERMANENT
BY A FINAL DECREE; AND ON APPEAL THE DECREE WAS AFFIRMED.  PENDING
DECISION ON THE APPEAL, CONSTRUCTION AT THE SITE WAS COMPLETED.  THE
STATE SUPREME COURT DENIED CERTIORARI.  HELD:  THE ISSUANCE OF THE
INJUNCTION WAS BEYOND THE POWER OF THE TENNESSEE COURTS, AND THE
JUDGMENT IS REVERSED.  PP. 304-310. 

(A)  THIS COURT IS NOT BOUND BY THE STATE APPELLATE COURT'S HOLDING
THAT THIS CASE WAS RENDERED MOOT BY THE COMPLETION OF CONSTRUCTION,
SINCE IN THIS CASE THE QUESTION OF MOOTNESS IS ITSELF A QUESTION OF
FEDERAL LAW UPON WHICH THIS COURT MUST PRONOUNCE FINAL JUDGMENT.  P.
304. 

(B)  THE PETITIONERS PLAINLY HAVE A SUBSTANTIAL STAKE IN THE
JUDGMENT, DERIVING FROM THE RESPONDENT'S UNDERTAKING IN THE INJUNCTION
BOND, WHICH SURVIVES THE COMPLETION OF CONSTRUCTION.  P. 305. 

(C)  SINCE A HOLDING OF MOOTNESS WOULD FRUSTRATE NATIONAL LABOR
POLICY AND ENCOURAGE INTERFERENCE WITH THE EXCLUSIVE JURISDICTION OF
THE NATIONAL LABOR RELATIONS BOARD, THE COURT SHOULD BE ASTUTE TO AVOID
HINDRANCES IN THE WAY OF REVIEWING THE STATE COURT'S ADVERSE DECISION
ON THE CLAIM OF FEDERAL PREEMPTION.  PP. 306-308. 

(D)  WHETHER THE FACTS SHOWED A "LABOR DISPUTE" WITHIN THE MEANING OF
29 U.S.C. SEC. 152(9) IS AT LEAST ARGUABLE, WHEREFORE THE STATE COURTS
HAD NO JURISDICTION TO ISSUE AN INJUNCTION OR TO ADJUDICATE THE
CONTROVERSY, WHICH LAY WITHIN THE EXCLUSIVE POWERS OF THE NATIONAL
LABOR RELATIONS BOARD.  PP. 309-310. 

LINER ET AL. V. JAFCO, INC., ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF TENNESSEE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE CHATTANOOGA BUILDING TRADES COUNCIL, AFL, IS COMPOSED OF 17
BUILDING TRADES UNIONS, INCLUDING HOD-CARRIERS BUILDING AND COMMON
LABORERS' UNION OF AMERICA AND ITS LOCAL 846, TWO OF THE PETITIONERS. 
RESPONDENT REA CONSTRUCTION COMPANY, A LARGE NORTH CAROLINA BUILDING
CONTRACTOR, WAS ENGAGED BY RESPONDENT JAFCO, INC., AS GENERAL
CONTRACTOR TO ERECT A SHOPPING CENTER ON A SITE IN CLEVELAND,
TENNESSEE.  REA OPERATED AN OPEN SHOP, AND WORKERS ON THE PROJECT WERE
PAID LOWER WAGES THAN THE UNION SCALE.  THE COUNCIL AUTHORIZED THE HOD
CARRIERS TO PLACE A SINGLE PICKET AT THE SITE IN PROTEST.  THE
PETITIONER LINER, CARRYING A SIGN WHICH READ "REA CONSTRUCTION CO., NOT
UNDER CONTRACT WITH CHATTANOOGA BUILDING TRADES COUNCIL, A.F. OF L.,"
BEGAN PEACEFUL PICKETING ON AUGUST 8, 1960.  CONSTRUCTION WORKERS ON
THE JOB PROMPTLY CEASED WORK.  ON THE SAME DAY RESPONDENT JAFCO, INC.,
SOUGHT AN EX PARTE INJUNCTION AGAINST THE PICKETING FROM THE TENNESSEE
CHANCERY COURT, WHICH ORDERED THE INJUNCTION TO ISSUE UPON THE
EXECUTION AND FILING OF AN INJUNCTION BOND.  SEE 5 TENN. CODE ANN.,
1955, SEC. 23-1901.  THE NEXT DAY, AUGUST 9, JAFCO FILED A BOND
PROVIDING THAT, IF THE INJUNCTION ACTION FAILED, JAFCO "SHALL WELL AND
TRULY PAY AND SATISFY THE SAID (PETITIONERS) ALL SUCH COSTS, DAMAGES,
INTEREST, AND OTHER SUMS AS MAY BE AWARDED AND RECOVERED AGAINST THE
SAID JAFCO, INC. IN ANY SUIT OR SUITS WHICH MAY BE HEREAFTER BROUGHT
FOR WRONGFULLY SUING OUT SAID INJUNCTION  ...  ."  THEREUPON THE EX
PARTE INJUNCTION ISSUED, (FN1) THE PICKETING CEASED IN COMPLIANCE WITH
IT, AND WORK ON THE PROJECT WAS RESUMED. 

THE PETITIONERS MOVED PROMPTLY IN THE CHANCERY COURT TO DISSOLVE THE
INJUNCTION ON THE GROUND THAT THE STATE COURT WAS WITHOUT JURISDICTION
TO ADJUDICATE THE CONTROVERSY BECAUSE THE SUBJECT MATTER OF THE
PICKETING WAS EXCLUSIVELY WITHIN THE COGNIZANCE OF THE NATIONAL LABOR
RELATIONS BOARD.  THE MOTION WAS DENIED ON SEPTEMBER 29 BY AN ORDER
WHICH RECITED, "THERE IS NO BONA FIDE LABOR DISPUTE BETWEEN THE PARTIES
IN THIS LITIGATION AND THEREFORE THE STATE COURT HAS JURISDICTION OF
THE MATTER AND THE SAME HAS NOT BEEN PREEMPTED BY THE NATIONAL LABOR
RELATIONS BOARD."  (FN2)  FOLLOWING A HEARING, THE INJUNCTION WAS MADE
PERMANENT BY A FINAL DECREE ENTERED ON JUNE 16, 1961.  PETITIONERS
APPEALED TO THE COURT OF APPEALS OF TENNESSEE, EASTERN SECTION, WHICH
AFFIRMED ON JANUARY 12, 1962.  THE OPINION, NOT OFFICIALLY REPORTED, IS
REPORTED IN 49 L.R.R.M. 2585.  PENDING DECISION ON THE APPEAL,
CONSTRUCTION AT THE SITE HAD BEEN COMPLETED.  NOTING THIS FACT, THE
COURT STATED, "IN THE FIRST PLACE THE QUESTIONS IN THIS CASE HAVE
BECOME MOOT."  HOWEVER, THE COURT WENT ON TO SAY, "FURTHER, WE CONCUR
WITH THE CHANCELLOR'S FINDING THAT A BONA FIDE LABOR DISPUTE DID NOT
EXIST."  49 L.R.R.M., AT 2587.  THE SUPREME COURT OF TENNESSEE, BY AN
UNREPORTED ORDER, DENIED CERTIORARI.  WE BROUGHT THE CASE HERE, 371
U.S. 961, TO CONSIDER THE VALIDITY OF THE INJUNCTION IN LIGHT OF OUR
DECISION IN LOCAL 438, CONSTRUCTION LABORERS V. CURRY, 371 U.S. 542. 
WE HOLD THAT THE ISSUANCE OF THE INJUNCTION WAS BEYOND THE POWER OF THE
TENNESSEE COURTS AND THEREFORE REVERSE THE JUDGMENT. 

WE MUST FIRST CONSIDER RESPONDENTS' CHALLENGE TO OUR JURISDICTION TO
REVIEW THE TENNESSEE COURTS' REJECTION OF THE PETITIONERS' FEDERAL
PREEMPTION CLAIM.  THE ARGUMENT IS THAT WE ARE BOUND BY THE STATE
APPELLATE COURT'S HOLDING THAT THIS CASE WAS RENDERED MOOT BY THE
COMPLETION OF CONSTRUCTION.  WE THINK, HOWEVER, THAT IN THIS CASE THE
QUESTION OF MOOTNESS IS ITSELF A QUESTION OF FEDERAL LAW UPON WHICH WE
MUST PRONOUNCE FINAL JUDGMENT.  LOVE V. GRIFFITH, 266 U.S. 32.  IN THAT
CASE A TEXAS TRIAL COURT DISMISSED A SUIT TO ENJOIN THE ENFORCEMENT OF
AN ALLEGEDLY UNCONSTITUTIONAL RULE WHICH BARRED NEGROES FROM VOTING IN
A SINGLE HOUSTON DEMOCRATIC PRIMARY ELECTION.  AN APPEAL FROM THE
DISMISSAL WAS IN TURN DISMISSED BY THE TEXAS COURT OF CIVIL APPEALS ON
THE GROUND THAT, SINCE THE ELECTION WAS, AT THAT TIME, LONG SINCE
PASSED, THE CAUSE OF ACTION HAD CEASED TO EXIST.  THIS COURT, SPEAKING
THROUGH MR. JUSTICE HOLMES, IMPLICITLY DENIED THAT THE STATE COURT'S
FINDING OF MOOTNESS PRECLUDED OUR INDEPENDENT DETERMINATION OF THAT
QUESTION, SAYING: 

"WHEN AS HERE THERE IS A PLAIN ASSERTION OF FEDERAL RIGHTS IN THE
LOWER COURT, LOCAL RULES AS TO HOW FAR IT SHALL BE REVIEWED ON APPEAL
DO NOT NECESSARILY PREVAIL.  DAVIS V. WECHSLER, 263 U.S. 22, 24. 
WHETHER THE RIGHT WAS DENIED OR NOT GIVEN DUE RECOGNITION BY THE COURT
OF CIVIL APPEALS IS A QUESTION AS TO WHICH THE PLAINTIFFS ARE ENTITLED
TO INVOKE OUR JUDGMENT.  WARD V. LOVE COUNTY, 253 U.S. 17, 22."  266
U.S., AT 33-34. 

THE COURT DID NOT, HOWEVER, THINK THAT THE ACTION OF THE TEXAS COURT
OF CIVIL APPEALS PREJUDICED THE APPELLANTS' CONSTITUTIONAL RIGHTS. 
SINCE THE ELECTION HAD BEEN HELD, ANY ORDER REVERSING THE TRIAL COURT
AND ORDERING THE INJUNCTION TO ISSUE WOULD HAVE BEEN FUTILE; AN
INJUNCTION COULD NOT AT THAT DATE REDRESS THE ALLEGED CONSTITUTIONAL
INJURY.  THE COURT SAID: 

"IF THE CASE STOOD HERE AS IT STOOD BEFORE THE COURT OF FIRST
INSTANCE IT WOULD PRESENT A GRAVE QUESTION OF CONSTITUTIONAL LAW AND WE
SHOULD BE ASTUTE TO AVOID HINDRANCES IN THE WAY OF TAKING IT UP.  BUT
THAT IS NOT THE SITUATION.  THE RULE PROMULGATED BY THE DEMOCRATIC
EXECUTIVE COMMITTEE WAS FOR A SINGLE ELECTION ONLY THAT HAD TAKEN PLACE
LONG BEFORE THE DECISION OF THE APPELLATE COURT.  NO CONSTITUTIONAL
RIGHTS OF THE PLAINTIFFS IN ERROR WERE INFRINGED BY HOLDING THAT THE
CAUSE OF ACTION HAD CEASED TO EXIST.  THE BILL WAS FOR AN INJUNCTION
THAT COULD NOT BE GRANTED AT THAT TIME.  THERE WAS NO CONSTITUTIONAL
OBLIGATION TO EXTEND THE REMEDY BEYOND WHAT WAS PRAYED."  266 U.S., AT
34. 

IN CONTRAST, THE PREJUDICE TO THE PETITIONERS FROM THE ACTION OF THE
TENNESSEE COURT OF APPEALS IN AFFIRMING THE INJUNCTION WHICH DID ISSUE
IN THE INSTANT CASE IS CLEAR.  THE PETITIONERS PLAINLY HAVE "A
SUBSTANTIAL STAKE IN THE JUDGMENT  ...  ," FISWICK V. UNITED STATES,
329 U.S. 211, 222, WHICH EXISTS APART FROM AND IS UNAFFECTED BY THE
COMPLETION OF CONSTRUCTION.  THEIR INTEREST DERIVES FROM THE
UNDERTAKING OF RESPONDENT JAFCO, INC., IN THE INJUNCTION BOND TO
INDEMNIFY THEM IN DAMAGES IF THE INJUNCTION WAS "WRONGFULLY" SUED OUT. 
WHETHER THE INJUNCTION WAS WRONGFULLY SUED OUT TURNS SOLELY UPON THE
ANSWER TO THE FEDERAL QUESTION WHICH THE PETITIONERS HAVE PRESSED FROM
THE BEGINNING.  IF THE ANSWER OF THE TENNESSEE COURT OF APPEALS TO THAT
QUESTION MAY NOT BE CHALLENGED HERE, THE PETITIONERS HAVE NO RECOURSE
AGAINST JAFCO ON THE BOND.  THUS, UNLIKE LOVE V. GRIFFITH, SUPRA, THE
FEDERAL ISSUES REMAIN OF OPERATIVE IMPORTANCE TO THE PARTIES AS THEY
COME TO THIS COURT; HERE IT MAY BE SAID THAT THE TENNESSEE COURTS HAVE
IN SUBSTANCE AND EFFECT DENIED A FEDERAL RIGHT, AND THE COMPLETION OF
CONSTRUCTION CANNOT BE DEEMED A HINDRANCE TO OUR REVIEW OF THE FEDERAL
QUESTION.  THIS IS NOT A CASE WHERE THIS COURT'S DECISION ON THE MERITS
OF THAT QUESTION "CANNOT AFFECT THE RIGHTS OF THE LITIGANTS IN THE CASE
BEFORE IT."  ST. PIERRE V. UNITED STATES, 319 U.S. 41, 42.  (FN3) 

MOREOVER, THIS IS PARTICULARLY A CASE IN WHICH "WE SHOULD BE ASTUTE
TO AVOID HINDRANCES IN THE WAY OF TAKING" UP THAT QUESTION.  DESPITE
THE COMPLETION OF CONSTRUCTION, OUR SUPERINTENDENCE OF A STATE COURT
INJUNCTION AGAINST CONDUCT ALLEGED TO BE COGNIZABLE EXCLUSIVELY BY THE
NATIONAL LABOR RELATIONS BOARD IS DESIRABLE "IF THE DANGER OF STATE
INTERFERENCE WITH NATIONAL POLICY IS TO BE AVERTED," SAN DIEGO BUILDING
TRADES COUNCIL V. GARMON, 359 U.S. 236, 245.  THIS CONTROVERSY INVOLVES
THE FUNDAMENTAL QUESTION OF WHETHER THE TENNESSEE COURTS HAD ANY POWER
WHATEVER TO ADJUDICATE THE DISPUTE BETWEEN THE PARTIES.  CONGRESS HAS
INVESTED THE NATIONAL LABOR RELATIONS BOARD WITH THE EXCLUSIVE POWER TO
ADJUDICATE CONDUCT ARGUABLY PROTECTED OR PROHIBITED BY THE NATIONAL
LABOR RELATIONS ACT.  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON,
SUPRA.  IF THE PEACEFUL PICKETING COMPLAINED OF IN THIS CASE IS SUCH
CONDUCT, CONGRESS HAS ORDAINED - TO FURTHER UNIFORM REGULATION AND TO
AVOID THE INCONSISTENCIES WHICH WOULD RESULT FROM THE APPLICATION OF
DISPARATE STATE REMEDIES - THAT ONLY THE FEDERAL AGENCY SHALL DEAL WITH
IT.  WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468.  THE ISSUANCE OF THE
STATE INJUNCTION IN THIS CASE TENDED TO FRUSTRATE THIS FEDERAL POLICY. 
THIS WOULD BE TRUE EVEN IF THE PICKETING WERE PROHIBITED CONDUCT.  FOR
ALTHOUGH THE NATIONAL LABOR RELATIONS BOARD IS NOT BARRED FROM GRANTING
APPROPRIATE REMEDIES BY THE FACT THAT THE CHALLENGED CONDUCT HAS
CEASED, LABOR BOARD V. MEXIA TEXTILE MILLS, INC., 339 U.S. 563, OR THAT
THE CONSTRUCTION HAS BEEN COMPLETED, LOCAL 74, CARPENTERS UNION V.
LABOR BOARD, 341 U.S. 707, CHARGES OF UNFAIR LABOR PRACTICES MUST BE
FILED WITHIN SIX MONTHS OF THEIR OCCURRENCE, (FN4) AND AN EMPLOYER
ARMED WITH A STATE INJUNCTION WOULD HAVE NO INCENTIVE TO INITIATE BOARD
PROCEEDINGS.  IT WOULD ENCOURAGE SUCH INTERFERENCE WITH THE FEDERAL
AGENCY'S EXCLUSIVE JURISDICTION IF A STATE COURT'S HOLDING OF MOOTNESS
BASED ON THE CHANCE EVENT OF COMPLETION OF CONSTRUCTION BARRED THIS
COURT'S REVIEW OF THE STATE COURT'S ADVERSE DECISION ON THE CLAIM OF
FEDERAL PREEMPTION.  (FN5)  WE HAVE GIVEN SIGNIFICANT WEIGHT TO THE
VITAL IMPORTANCE OF PREVENTING STATE INJUNCTIONS FROM FRUSTRATING
FEDERAL LABOR POLICY IN SITUATIONS WHICH THE CONGRESS HAS ORDAINED
SHALL BE DEALT WITH EXCLUSIVELY BY THE BOARD.  IN CONSTRUCTION LABORERS
V. CURRY, SUPRA, WE CONSIDERED WHETHER A STATE COURT TEMPORARY
INJUNCTION IN A LABOR DISPUTE SHOULD BE CONSIDERED TO BE A FINAL
JUDGMENT FOR PURPOSES OF OUR REVIEW UNDER 28 U.S.C. SEC. 1257.  WE HELD
THAT THE TEMPORARY INJUNCTION SHOULD BE DEEMED A FINAL JUDGMENT
"PARTICULARLY WHEN POSTPONING REVIEW WOULD SERIOUSLY ERODE THE NATIONAL
LABOR POLICY REQUIRING THE SUBJECT MATTER OF RESPONDENTS' CAUSE TO BE
HEARD BY THE NATIONAL LABOR RELATIONS BOARD, NOT BY THE STATE COURTS,"
AND SAID FURTHER, "THE TRUTH IS THAT AUTHORIZING THE ISSUANCE OF A
TEMPORARY INJUNCTION, AS IS FREQUENTLY TRUE OF TEMPORARY INJUNCTIONS IN
LABOR DISPUTES, MAY EFFECTIVELY DISPOSE OF PETITIONER'S RIGHTS AND
RENDER ENTIRELY ILLUSORY HIS RIGHT TO REVIEW HERE AS WELL AS HIS RIGHT
TO A HEARING BEFORE THE LABOR BOARD."  371 U.S., AT 550. 

IN SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S. 173, A
PATENT LICENSEE DEFENDED AGAINST A SUIT FOR UNPAID ROYALTIES BY
ATTACKING THE VALIDITY UNDER THE SHERMAN ACT OF A PRICE-FIXING
STIPULATION IN HIS LICENSE.  THE LOWER COURTS HELD THAT HAVING ACCEPTED
THE LICENSE WITH THE PRICE-FIXING STIPULATION, THE LICENSEE WAS
ESTOPPED TO DENY THE VALIDITY OF THE STIPULATION.  THIS COURT
REVERSED.  THE QUESTION PRESENTED WAS "WHETHER THE DOCTRINE OF ESTOPPEL
AS INVOKED BELOW IS SO IN CONFLICT WITH THE SHERMAN ACT'S PROHIBITION
OF PRICE-FIXING THAT THIS COURT MAY RESOLVE THE QUESTION EVEN THOUGH
ITS CONCLUSION BE CONTRARY TO THAT OF A STATE COURT."  317 U.S., AT
175.  WE HELD THAT LOCAL RULES OF ESTOPPEL WOULD NOT BE PERMITTED TO
THWART THE PURPOSES OF STATUTES OF THE UNITED STATES.  WE SAID, 317
U.S., AT 176: 

"IT IS FAMILIAR DOCTRINE THAT THE PROHIBITION OF A FEDERAL STATUTE
MAY NOT BE SET AT NAUGHT, OR ITS BENEFITS DENIED, BY STATE STATUTES OR
STATE COMMON LAW RULES.  IN SUCH A CASE OUR DECISION IS NOT CONTROLLED
BY ERIE R. CO. V. TOMPKINS, 304 U.S. 64.  THERE WE FOLLOWED STATE LAW
BECAUSE IT WAS THE LAW TO BE APPLIED IN FEDERAL COURTS.  BUT THE
DOCTRINE OF THAT CASE IS INAPPLICABLE TO THOSE AREAS OF JUDICIAL
DECISION WITHIN WHICH THE POLICY OF THE LAW IS SO DOMINATED BY THE
SWEEP OF FEDERAL STATUTES THAT LEGAL RELATIONS WHICH THEY AFFECT MUST
BE DEEMED GOVERNED BY FEDERAL LAW HAVING ITS SOURCE IN THOSE STATUTES,
RATHER THAN BY LOCAL LAW  ...  .  WHEN A FEDERAL STATUTE CONDEMNS AN
ACT AS UNLAWFUL, THE EXTENT AND NATURE OF THE LEGAL CONSEQUENCES OF THE
CONDEMNATION, THOUGH LEFT BY THE STATUTE TO JUDICIAL DETERMINATION, ARE
NEVERTHELESS FEDERAL QUESTIONS, THE ANSWERS TO WHICH ARE TO BE DERIVED
FROM THE STATUTE AND THE FEDERAL POLICY WHICH IT HAS ADOPTED.  TO THE
FEDERAL STATUTE AND POLICY, CONFLICTING STATE LAW AND POLICY MUST
YIELD.  CONSTITUTION, ART. VI, CL. 2; ...  ." 

IF IN SOLA A STATE SUBSTANTIVE RULE OF LAW HAD TO YIELD TO THE
FEDERAL STATUTE AND POLICY, EVEN MORE SO HERE - WHERE THE CLAIM IS THAT
THE FEDERAL STATUTE AND POLICY OUST STATE COURTS OF ANY POWER WHATEVER
TO DEAL WITH THE CONDUCT IN QUESTION - LOCAL RULES WHICH PURPORT TO
PRECLUDE STATE APPELLATE COURT ADJUDICATION OF THE FEDERAL PREEMPTION
CLAIM CANNOT CONCLUSIVELY RENDER THE CASE MOOT FOR THE PURPOSES OF THIS
COURT'S REVIEW. 

WE TURN THEN TO THE MERITS.  OUR DISCUSSION NEED NOT BE EXTENDED, FOR
IN OUR VIEW THE CASE IS SQUARELY GOVERNED BY OUR DECISION IN
CONSTRUCTION LABORERS V. CURRY, SUPRA.  WHETHER OR NOT THE FACTS SHOWED
A "LABOR DISPUTE" WITHIN THE MEANING OF 29 U.S.C. SEC. 152(9) (FN6) IS
CERTAINLY AT LEAST ARGUABLE.  CONSEQUENTLY, AS WE SAID IN CURRY, "THE
STATE COURT HAD NO JURISDICTION TO ISSUE AN INJUNCTION OR TO ADJUDICATE
THIS CONTROVERSY, WHICH LAY WITHIN THE EXCLUSIVE POWERS OF THE NATIONAL
LABOR RELATIONS BOARD."  371 U.S., AT 546-547.    THE JUDGMENT IS
REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE RESPONDENT REA CONSTRUCTION COMPANY WAS ADDED AS A PARTY
COMPLAINANT BY AN AMENDED AND SUPPLEMENTAL BILL FILED AUGUST 10, 1960. 

FN2  IN ITS OPINION ON MAKING THE INJUNCTION PERPETUAL, THE TRIAL
COURT ALSO FOUND "THAT THE ERECTION OF THE SHOPPING CENTER DOES NOT
INVOLVE INTERSTATE COMMERCE.  IT IS A LOCALIZED ACTION AND BY NO
DEFINITION OF THE TERM CAN IT BE SAID THAT THIS OPERATION AMOUNTS TO
INTERSTATE COMMERCE."  THE RESPONDENTS DO NOT SUPPORT THIS FINDING IN
THIS COURT.  THE PROOF WAS THAT, BEFORE THE HEARING, REA CONSTRUCTION
COMPANY PURCHASED OUTSIDE TENNESSEE AND BROUGHT TO THE SITE MATERIALS
COSTING $147,099.67.  THIS MEETS THE DIRECT INFLOW STANDARDS SET BY THE
NATIONAL LABOR RELATIONS BOARD FOR THE EXERCISE OF ITS JURISDICTION. 
SEE 23 N.L.R.B. ANN. REP. 8 (1958). 

FN3  OUR LACK OF JURISDICTION TO REVIEW MOOT CASES DERIVES FROM THE
REQUIREMENT OF ARTICLE III OF THE CONSTITUTION UNDER WHICH THE EXERCISE
OF JUDICIAL POWER DEPENDS UPON THE EXISTENCE OF A CASE OR CONTROVERSY. 
SEE DIAMOND, FEDERAL JURISDICTION TO DECIDE MOOT CASES, 94 U. OF PA. L.
REV. 125 (1946); NOTE, 103 U. OF PA. L. REV. 772 (1955). 

FN4  29 U.S.C. SEC. 160(B). 

FN5  THE PETITIONERS SOUGHT TO ADVANCE THE HEARING AND DECISION OF
THEIR APPEAL TO THE TENNESSEE COURT OF APPEALS.  THE COURT SAID, 49
L.R.R.M., AT 2587:  "THE (PETITIONERS) IN BRIEF FILED JUNE 22ND, 1961,
IN WHICH THEY WERE SEEKING TO ADVANCE THE CAUSE FOR HEARING, STATED: 

"IN THE INSTANT CASE, THE RIGHT OF PICKETING WILL BECOME MOOT BY
AUGUST 1, 1961, AS THE CONSTRUCTION WILL BE COMPLETED AND THE BUILDING
READY FOR OCCUPANCY.  APPELLANTS KNOW THAT THEY DESIRE TO PICKET ONE OF
THE COMPLAINANTS, REA CONSTRUCTION COMPANY, THIS COMING FALL ON A
PROJECT WHICH WILL REQUIRE APPROXIMATELY SIX OR EIGHT MONTHS OF
CONSTRUCTION.  WITHOUT JUDICIAL REVIEW OF THIS CASE THEY CAN ONLY
EXPECT THE SAME TRIAL COURT TO ACT THE SAME, AND AGAIN THEY CANNOT
POSSIBLY GET THE CASE TO THE APPELLATE COURT FOR A DECISION WITHIN THAT
TIME.'" 

FN6  "THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING
TERMS, TENURE OR CONDITIONS OF EMPLOYMENT, OR CONCERNING THE
ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING,
MAINTAINING, CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF
EMPLOYMENT, REGARDLESS OF WHETHER THE DISPUTANTS STAND IN THE PROXIMATE
RELATION OF EMPLOYER AND EMPLOYEE." 
..END :







NATIONAL EQUIPMENT RENTAL, LTD., V. SZUKHENT 375 U.S. 311 


NO. 81.  ARGUED NOVEMBER 20, 1963.  - DECIDED JANUARY 6, 1964.  - 311
F.2D 79, REVERSED. 


PETITIONER, A CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS IN NEW
YORK, SUED RESPONDENTS, RESIDENTS OF MICHIGAN, IN A FEDERAL COURT IN
NEW YORK, CLAIMING THAT RESPONDENTS HAD DEFAULTED IN PAYMENTS DUE UNDER
A FARM EQUIPMENT LEASE.  THE LEASE WAS ON A PRINTED FORM, 1 1/2 PAGES
IN LENGTH, AND CONSISTED OF 18 NUMBERED PARAGRAPHS.  THE LAST
PARAGRAPH, APPEARING JUST ABOVE RESPONDENTS' SIGNATURES, PROVIDED THAT
"THE LESSEE HEREBY DESIGNATES FLORENCE WEINBERG, 47-21 FORTY-FIRST
STREET, LONG ISLAND CITY, N.Y., AS AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF ANY PROCESS WITHIN THE STATE OF NEW YORK."  THE RESPONDENTS
WERE NOT ACQUAINTED WITH FLORENCE WEINBERG, AND SHE HAD NOT EXPRESSLY
UNDERTAKEN TO TRANSMIT NOTICE TO THEM.  THE MARSHAL DELIVERED TWO
COPIES OF THE SUMMONS AND COMPLAINT TO FLORENCE WEINBERG.  THAT SAME
DAY SHE MAILED THE SUMMONS AND COMPLAINT TO THE RESPONDENTS, TOGETHER
WITH A LETTER STATING THAT THE DOCUMENTS HAD BEEN SERVED UPON HER AS
THE RESPONDENTS' AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS
IN NEW YORK, IN ACCORDANCE WITH THE AGREEMENT CONTAINED IN THE LEASE. 
THE PETITIONER ITSELF ALSO NOTIFIED THE RESPONDENTS BY CERTIFIED MAIL
OF THE SERVICE OF PROCESS UPON FLORENCE WEINBERG.  HELD:  PROMPT NOTICE
TO THE RESPONDENTS HAVING BEEN GIVEN, FLORENCE WEINBERG WAS THEIR
"AGENT AUTHORIZED BY APPOINTMENT" TO RECEIVE PROCESS WITHIN THE MEANING
OF FEDERAL RULE OF CIVIL PROCEDURE 4(D)(1).  PP. 316-318. 

(A)  NO QUESTIONS OF SUBJECT MATTER JURISDICTION OR OF VENUE ARE HERE
PRESENTED.  FEDERAL JURISDICTION EXISTED BY REASON OF DIVERSITY OF
CITIZENSHIP.  28 U.S.C. SEC. 1332.  P. 313, N. 2. 

(B)  SINCE THE RESPONDENTS DID IN FACT RECEIVE COMPLETE AND TIMELY
NOTICE OF THE LAWSUIT PENDING AGAINST THEM, NO QUESTION OF DUE PROCESS
IS REACHED OR DECIDED.  P. 315. 

(C)  PARTIES TO A CONTRACT MAY AGREE IN ADVANCE TO SUBMIT TO THE
JURISDICTION OF A GIVEN COURT, TO PERMIT NOTICE TO BE SERVED BY THE
OPPOSING PARTY, OR EVEN TO WAIVE NOTICE ALTOGETHER.  P. 315. 

(D)  FLORENCE WEINBERG'S PROMPT ACCEPTANCE AND TRANSMITTAL TO THE
RESPONDENTS OF THE SUMMONS AND COMPLAINT PURSUANT TO THE AUTHORIZATION
WAS ITSELF SUFFICIENT TO VALIDATE THE AGENCY, EVEN THOUGH THERE WAS NO
EXPLICIT PREVIOUS PROMISE ON HER PART TO DO SO.  P. 316. 

(E)  THERE IS NO RELEVANT CONCEPT OF STATE LAW WHICH WOULD INVALIDATE
THE AGENCY HERE AT ISSUE.  P. 316. 

(F)  THE FACT THAT THE DESIGNATED AGENT WAS NOT PERSONALLY KNOWN TO
THE RESPONDENTS AT THE TIME OF HER APPOINTMENT, AND THAT SHE MAY BE
RELATED TO AN OFFICER OF THE PETITIONER CORPORATION, DID NOT INVALIDATE
THE AGENCY.  P. 317. 

(G)  THE CASE OF ROSENTHAL V. UNITED TRANSP.  CO., 196 APP. DIV. 540,
188 N.Y.S. 154, IS INAPPOSITE.  P. 317, N. 8. 

NATIONAL EQUIPMENT RENTAL, LTD., V. SZUKHENT ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDE THAT SERVICE OF PROCESS
UPON AN INDIVIDUAL MAY BE MADE "BY DELIVERING A COPY OF THE SUMMONS AND
OF THE COMPLAINT TO AN AGENT AUTHORIZED BY APPOINTMENT  ...  TO RECEIVE
SERVICE OF PROCESS."  (FN1)  THE PETITIONER IS A CORPORATION WITH ITS
PRINCIPAL PLACE OF BUSINESS IN NEW YORK.  IT SUED THE RESPONDENTS,
RESIDENTS OF MICHIGAN, IN A NEW YORK FEDERAL COURT, CLAIMING THAT THE
RESPONDENTS HAD DEFAULTED UNDER A FARM EQUIPMENT LEASE.  THE ONLY
QUESTION NOW BEFORE US IS WHETHER THE PERSON UPON WHOM THE SUMMONS AND
COMPLAINT WERE SERVED WAS "AN AGENT AUTHORIZED BY APPOINTMENT" TO
RECEIVE THE SAME, SO AS TO SUBJECT THE RESPONDENTS TO THE JURISDICTION
OF THE FEDERAL COURT IN NEW YORK.  (FN2) 

THE RESPONDENTS OBTAINED CERTAIN FARM EQUIPMENT FROM THE PETITIONER
UNDER A LEASE EXECUTED IN 1961.  THE LEASE WAS ON A PRINTED FORM LESS
THAN A PAGE AND A HALF IN LENGTH, AND CONSISTED OF 18 NUMBERED
PARAGRAPHS.  THE LAST NUMBERED PARAGRAPH, APPEARING JUST ABOVE THE
RESPONDENTS' SIGNATURES AND PRINTED IN THE SAME TYPE USED IN THE
REMAINDER OF THE INSTRUMENT, PROVIDED THAT "THE LESSEE HEREBY
DESIGNATES FLORENCE WEINBERG, 47-21 FORTY-FIRST STREET, LONG ISLAND
CITY, N.Y., AS AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF ANY
PROCESS WITHIN THE STATE OF NEW YORK."  (FN3)  THE RESPONDENTS WERE NOT
ACQUAINTED WITH FLORENCE WEINBERG. 

IN 1962 THE PETITIONER COMMENCED THE PRESENT ACTION BY FILING IN THE
FEDERAL COURT IN NEW YORK A COMPLAINT WHICH ALLEGED THAT THE
RESPONDENTS HAD FAILED TO MAKE ANY OF THE PERIODIC PAYMENTS SPECIFIED
BY THE LEASE.  THE MARSHAL DELIVERED TWO COPIES OF THE SUMMONS AND
COMPLAINT TO FLORENCE WEINBERG.  THAT SAME DAY SHE MAILED THE SUMMONS
AND COMPLAINT TO THE RESPONDENTS, TOGETHER WITH A LETTER STATING THAT
THE DOCUMENTS HAD BEEN SERVED UPON HER AS THE RESPONDENTS' AGENT FOR
THE PURPOSE OF ACCEPTING SERVICE OF PROCESS IN NEW YORK, IN ACCORDANCE
WITH THE AGREEMENT CONTAINED IN THE LEASE.  (FN4)  THE PETITIONER
ITSELF ALSO NOTIFIED THE RESPONDENTS BY CERTIFIED MAIL OF THE SERVICE
OF PROCESS UPON FLORENCE WEINBERG. 

UPON MOTION OF THE RESPONDENTS, THE DISTRICT COURT QUASHED SERVICE OF
THE SUMMONS AND COMPLAINT, HOLDING THAT, ALTHOUGH FLORENCE WEINBERG HAD
PROMPTLY NOTIFIED THE RESPONDENTS OF THE SERVICE OF PROCESS AND MAILED
COPIES OF THE SUMMONS AND COMPLAINT TO THEM, THE LEASE AGREEMENT ITSELF
HAD NOT EXPLICITLY REQUIRED HER TO DO SO, AND THERE WAS THEREFORE A
"FAILURE OF THE AGENCY ARRANGEMENT TO ACHIEVE INTRINSIC AND CONTINUING
REALITY."  30 F.R.D. 3, 5.  THE COURT OF APPEALS AFFIRMED, 311 F.2D 79,
AND WE GRANTED CERTIORARI, 372 U.S. 974.  FOR THE REASONS STATED IN
THIS OPINION, WE HAVE CONCLUDED THAT FLORENCE WEINBERG WAS "AN AGENT
AUTHORIZED BY APPOINTMENT  ...  TO RECEIVE SERVICE OF PROCESS," AND
ACCORDINGLY WE REVERSE THE JUDGMENT BEFORE US. 

WE NEED NOT AND DO NOT IN THIS CASE REACH THE SITUATION WHERE NO
PERSONAL NOTICE HAS BEEN GIVEN TO THE DEFENDANT.  SINCE THE RESPONDENTS
DID IN FACT RECEIVE COMPLETE AND TIMELY NOTICE OF THE LAWSUIT PENDING
AGAINST THEM, NO DUE PROCESS CLAIM HAS BEEN MADE.  THE CASE BEFORE US
IS THEREFORE QUITE DIFFERENT FROM CASES WHERE THERE WAS NO ACTUAL
NOTICE, SUCH AS SCHROEDER V. CITY OF NEW YORK, 371 U.S. 208; WALKER V.
HUTCHINSON CITY, 352 U.S. 112; AND MULLANE V. CENTRAL HANOVER TR. CO.,
339 U.S. 306.  SIMILARLY, AS THE COURT OF APPEALS RECOGNIZED, THIS
COURT'S DECISION IN WUCHTER V. PIZZUTTI, 276 U.S. 13, IS INAPPOSITE
HERE.  IN THAT CASE A STATE NONRESIDENT MOTORIST STATUTE WHICH FAILED
TO PROVIDE EXPLICITLY FOR COMMUNICATION OF NOTICE WAS HELD
UNCONSTITUTIONAL, DESPITE THE FACT THAT NOTICE HAD BEEN GIVEN TO THE
DEFENDANT IN THAT PARTICULAR CASE.  WUCHTER DEALT WITH THE LIMITATIONS
IMPOSED BY THE FOURTEENTH AMENDMENT UPON A STATUTORY SCHEME BY WHICH A
STATE ATTEMPTS TO SUBJECT NONRESIDENT INDIVIDUALS TO THE JURISDICTION
OF ITS COURTS.  THE QUESTION PRESENTED HERE, ON THE OTHER HAND, IS
WHETHER A PARTY TO A PRIVATE CONTRACT MAY APPOINT AN AGENT TO RECEIVE
SERVICE OF PROCESS WITHIN THE MEANING OF FEDERAL RULE OF CIVIL
PROCEDURE 4(D)(1), WHERE THE AGENT IS NOT PERSONALLY KNOWN TO THE
PARTY, AND WHERE THE AGENT HAS NOT EXPRESSLY UNDERTAKEN TO TRANSMIT
NOTICE TO THE PARTY. 

THE PURPOSE UNDERLYING THE CONTRACTUAL PROVISION HERE AT ISSUE SEEMS
CLEAR.  THE CLAUSE WAS INSERTED BY THE PETITIONER AND AGREED TO BY THE
RESPONDENTS IN ORDER TO ASSURE THAT ANY LITIGATION UNDER THE LEASE
SHOULD BE CONDUCTED IN THE STATE OF NEW YORK.  THE CONTRACT
SPECIFICALLY PROVIDED THAT "THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
MADE IN NASSAU COUNTY, NEW YORK, REGARDLESS OF THE ORDER IN WHICH THE
SIGNATURES OF THE PARTIES SHALL BE AFFIXED HERETO, AND SHALL BE
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERE
DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK."  AND
IT IS SETTLED, AS THE COURTS BELOW RECOGNIZED, THAT PARTIES TO A
CONTRACT MAY AGREE IN ADVANCE TO SUBMIT TO THE JURISDICTION OF A GIVEN
COURT, TO PERMIT NOTICE TO BE SERVED BY THE OPPOSING PARTY, OR EVEN TO
WAIVE NOTICE ALTOGETHER.  SEE, E.G., KENNY CONSTRUCTION CO. V. ALLEN,
248 F.2D 656 (C.A.D.C. CIR. 1957); BOWLES V. SCHMITT & CO., INC., 170
F.2D 617 (C.A.2D CIR. 1948); GILBERT V. BURNSTINE, 255 N.Y. 348, 174
N.E. 706 (1931). 

UNDER WELL-SETTLED GENERAL PRINCIPLES OF THE LAW OF AGENCY, FLORENCE
WEINBERG'S PROMPT ACCEPTANCE AND TRANSMITTAL TO THE RESPONDENTS OF THE
SUMMONS AND COMPLAINT PURSUANT TO THE AUTHORIZATION WAS ITSELF
SUFFICIENT TO VALIDATE THE AGENCY, EVEN THOUGH THERE WAS NO EXPLICIT
PREVIOUS PROMISE ON HER PART TO DO SO.  "THE PRINCIPAL'S AUTHORIZATION
MAY NEITHER EXPRESSLY NOR IMPLIEDLY REQUEST ANY EXPRESSION OF ASSENT BY
THE AGENT AS A CONDITION OF THE AUTHORITY, AND IN SUCH A CASE ANY
EXERCISE OF POWER BY THE AGENT WITHIN THE SCOPE OF THE AUTHORIZATION,
DURING THE TERM FOR WHICH IT WAS GIVEN, OR WITHIN A REASONABLE TIME IF
NO FIXED TERM WAS MENTIONED, WILL BIND THE PRINCIPAL."  2 WILLISTON ON
CONTRACTS (3D ED. 1959), SEC. 274. 

WE DEAL HERE WITH A FEDERAL RULE, APPLICABLE TO FEDERAL COURTS IN ALL
50 STATES.  BUT EVEN IF WE WERE TO ASSUME THAT THIS UNIFORM FEDERAL
STANDARD SHOULD GIVE WAY TO CONTRARY LOCAL POLICIES, THERE IS NO
RELEVANT CONCEPT OF STATE LAW WHICH WOULD INVALIDATE THE AGENCY HERE AT
ISSUE.  IN MICHIGAN, WHERE THE RESPONDENTS RESIDE, THE STATUTE WHICH
VALIDATES SERVICE OF PROCESS UNDER THE CIRCUMSTANCES PRESENT IN THIS
CASE CONTAINS NO PROVISION REQUIRING THAT THE APPOINTED AGENT EXPRESSLY
UNDERTAKE TO NOTIFY THE PRINCIPAL OF THE SERVICE OF PROCESS.  (FN5)
SIMILARLY, NEW YORK LAW, WHICH IT WAS AGREED SHOULD BE APPLICABLE TO
THE LEASE PROVISIONS, DOES NOT REQUIRE ANY SUCH EXPRESS PROMISE BY THE
AGENT IN ORDER TO CREATE A VALID AGENCY FOR RECEIPT OF PROCESS.  THE
NEW YORK STATUTORY SHORT FORM OF GENERAL POWER OF ATTORNEY, WHICH
SPECIFICALLY INCLUDES THE POWER TO ACCEPT SERVICE OF PROCESS, (FN6) IS
ENTIRELY SILENT AS TO ANY SUCH REQUIREMENT.  (FN7)  INDEED, THE
IDENTICAL CONTRACTUAL PROVISION AT ISSUE HERE HAS BEEN HELD BY A NEW
YORK COURT TO CREATE A VALID AGENCY FOR SERVICE OF PROCESS UNDER THE
LAW OF THAT STATE.  NATIONAL EQUIPMENT RENTAL V. GRAPHIC ART DESIGNERS,
36 MISC. 2D 442, 234 N.Y.S.2D 61.  (FN8) 

IT IS ARGUED, FINALLY, THAT THE AGENCY SOUGHT TO BE CREATED IN THIS
CASE WAS INVALID BECAUSE FLORENCE WEINBERG MAY HAVE HAD A CONFLICT OF
INTEREST.  THIS ARGUMENT IS BASED UPON THE FACT THAT SHE WAS NOT
PERSONALLY KNOWN TO THE RESPONDENTS AT THE TIME OF HER APPOINTMENT AND
UPON A SUGGESTION IN THE RECORD THAT SHE MAY BE RELATED TO AN OFFICER
OF THE PETITIONER CORPORATION.  BUT SUCH A CONTENTION IGNORES THE
NARROWLY LIMITED NATURE OF THE AGENCY HERE INVOLVED.  FLORENCE WEINBERG
WAS APPOINTED THE RESPONDENTS' AGENT FOR THE SINGLE PURPOSE OF
RECEIVING SERVICE OF PROCESS.  AN AGENT WITH AUTHORITY SO LIMITED CAN
IN NO MEANINGFUL SENSE BE DEEMED TO HAVE HAD AN INTEREST ANTAGONISTIC
TO THE RESPONDENTS, SINCE BOTH THE PETITIONER AND THE RESPONDENTS HAD
AN EQUAL INTEREST IN ASSURING THAT, IN THE EVENT OF LITIGATION, THE
LATTER BE GIVEN THAT ADEQUATE AND TIMELY NOTICE WHICH IS A PREREQUISITE
TO A VALID JUDGMENT.  (FN9) 

A DIFFERENT CASE WOULD BE PRESENTED IF FLORENCE WEINBERG HAD NOT
GIVEN PROMPT NOTICE TO THE RESPONDENTS, FOR THEN THE CLAIM MIGHT WELL
BE MADE THAT HER FAILURE TO DO SO HAD OPERATED TO INVALIDATE THE
AGENCY.  WE HOLD ONLY THAT, PROMPT NOTICE TO THE RESPONDENTS HAVING
BEEN GIVEN, FLORENCE WEINBERG WAS THEIR "AGENT AUTHORIZED BY
APPOINTMENT" TO RECEIVE PROCESS WITHIN THE MEANING OF FEDERAL RULE OF
CIVIL PROCEDURE 4(D)(1). 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED. 

FN1  FEDERAL RULE OF CIVIL PROCEDURE 4(D) PROVIDES, IN PERTINENT
PART: 

"(D)  SUMMONS:  PERSONAL SERVICE.  THE SUMMONS AND COMPLAINT SHALL BE
SERVED TOGETHER.  THE PLAINTIFF SHALL FURNISH THE PERSON MAKING SERVICE
WITH SUCH COPIES AS ARE NECESSARY.  SERVICE SHALL BE MADE AS FOLLOWS: 

"(1)  UPON AN INDIVIDUAL OTHER THAN AN INFANT OR AN INCOMPETENT
PERSON, BY DELIVERING A COPY OF THE SUMMONS AND OF THE COMPLAINT TO HIM
PERSONALLY OR BY LEAVING COPIES THEREOF AT HIS DWELLING HOUSE OR USUAL
PLACE OF ABODE WITH SOME PERSON OF SUITABLE AGE AND DISCRETION THEN
RESIDING THEREIN OR BY DELIVERING A COPY OF THE SUMMONS AND OF THE
COMPLAINT TO AN AGENT AUTHORIZED BY APPOINTMENT OR BY LAW TO RECEIVE
SERVICE OF PROCESS." 

FN2  NO QUESTIONS OF SUBJECT MATTER JURISDICTION OR OF VENUE ARE
PRESENTED.  FEDERAL JURISDICTION EXISTS BY REASON OF DIVERSITY OF
CITIZENSHIP.  28 U.S.C. SEC. 1332.  VENUE IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF NEW YORK HAS NOT BEEN CONTESTED.  28
U.S.C. SEC. 1391. 

FN3  THE PARAGRAPH IN ITS ENTIRETY READ AS FOLLOWS: 

"THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN NASSAU COUNTY,
NEW YORK, REGARDLESS OF THE ORDER IN WHICH THE SIGNATURES OF THE
PARTIES SHALL BE AFFIXED HERETO, AND SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERE DETERMINED, IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK; AND THE LESSEE HEREBY
DESIGNATES FLORENCE WEINBERG, 47-21 FORTY-FIRST STREET, LONG ISLAND
CITY, N.Y., AS AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF ANY
PROCESS WITHIN THE STATE OF NEW YORK." 

FN4  THE COMPLAINT, SUMMONS AND COVERING LETTER WERE SENT BY
CERTIFIED MAIL, AND THE LETTER READ AS FOLLOWS: 

"GENTLEMEN: 

"PLEASE TAKE NOTICE THAT THE ENCLOSED SUMMONS AND COMPLAINT WAS DULY
SERVED UPON ME THIS DAY BY THE UNITED STATES MARSHAL, AS YOUR AGENT FOR
THE PURPOSE OF ACCEPTING SERVICE OF PROCESS WITHIN THE STATE OF NEW
YORK, IN ACCORDANCE WITH YOUR CONTRACT WITH NATIONAL EQUIPMENT RENTAL,
LTD. 

"VERY TRULY YOURS, 

"FLORENCE WEINBERG" 

FN5  MICH. STAT. ANN., 1962, SEC. 27A.1930. 

FN6  MCKINNEY'S N.Y. LAWS, GENERAL BUSINESS LAW, SEC. 229(6). 

FN7  MCKINNEY'S N.Y. LAWS, GENERAL BUSINESS LAW, SEC. 220. 

FN8  IT IS ARGUED THAT THE STATE COURT DECISIONS UPHOLDING THE AGENCY
DESIGNATION HERE AT ISSUE WOULD HAVE BEEN DIFFERENT IF THE CASE OF
ROSENTHAL V. UNITED TRANSP.  CO., 196 APP.  DIV. 540, 188 N.Y.S. 154,
HAD BEEN BROUGHT TO THE ATTENTION OF THE COURTS.  ROSENTHAL INTERPRETED
THE FORERUNNER OF SEC. 227 OF THE CIVIL PRACTICE ACT, GILBERT-BLISS'
N.Y. CIV.  PRAC., VOL. 3A, 1942, SEC. 227 (1963 SUPP.), WHICH CREATES A
PROCEDURE WHEREBY A RESIDENT OF NEW YORK MAY APPOINT AN AGENT FOR THE
RECEIPT OF PROCESS BY DESIGNATION OF A PERSON TO RECEIVE SERVICE AND
THE FILING THEREOF WITH THE COUNTY CLERK.  THE ROSENTHAL CASE IS
ENTIRELY INAPPOSITE, BECAUSE SEC. 227 CLEARLY APPLIES ONLY TO RESIDENTS
OF NEW YORK WHO LEAVE THE STATE, AND EVEN AS TO THEM, THE PROVISION IS
PERMISSIVE RATHER THAN EXCLUSIVE.  PHILLIPS V. GARRAMONE, 36 MISC. 2D
1041, 233 N.Y.S.2D 842; TORRE V. GRASSO, 11 MISC. 2D 275, 173 N.Y.S.2D
828. 

FN9  THERE IS NO ALLEGATION THAT WEINBERG HAD ANY PECUNIARY INTEREST
IN THE SUBJECT MATTER OF THE LITIGATION.  NOR IS THE ISSUE HERE THE
APPLICABILITY OF A STATUTE WHICH PERMITS SERVICE ON A FOREIGN
CORPORATION BY SERVICE ON PERSONS WHO ARE GENERALLY AUTHORIZED TO ACT
AS AGENTS OF THE CORPORATION, WHEN THE AGENT UPON WHOM SERVICE IS MADE
HAS A PERSONAL INTEREST IN SUPPRESSING NOTICE OF SERVICE: SEE, E.G.,
JOHN W. MASURY & SON V. LOWTHER, 299 MICH. 516, 300 N.W. 866 (1941)
(INVOLVING A GARNISHMENT PROCEEDING IN WHICH SERVICE UNDER SUCH A
STATUTE WAS ATTEMPTED UPON THAT EMPLOYEE OF THE FOREIGN CORPORATION WHO
HAD INCURRED THE DEBT ON WHICH THE SUIT WAS BASED, WHO THEREFORE HAD A
PERSONAL INTEREST IN CONCEALING FROM HIS EMPLOYER THE FACT OF SERVICE,
AND WHO DID NOT NOTIFY THE EMPLOYER THAT SERVICE HAD BEEN MADE).  SEE
HARTSOCK V. COMMODITY CREDIT CORP., 10 F.R.D. 181, ALSO INVOLVING A
SITUATION WHERE THE AGENT "SUSTAINS SUCH A RELATION TO PLAINTIFF OR THE
CLAIM IN SUIT AS TO MAKE IT TO HIS INTEREST TO SUPPRESS THE FACT OF
SERVICE  ...  ."  10 F.R.D., AT 184.    MR. JUSTICE BLACK, DISSENTING. 

THE PETITIONER, NATIONAL EQUIPMENT RENTAL, LTD., IS A DELAWARE
CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS IN GREATER NEW YORK
CITY.  FROM THAT LOCATION IT DOES A NATIONWIDE EQUIPMENT RENTAL
BUSINESS.  THE RESPONDENTS, STEVE AND ROBERT SZUKHENT, FATHER AND SON
FARMING IN MICHIGAN, LEASED FROM NATIONAL TWO INCUBATORS FOR THEIR
FARM, SIGNING IN MICHIGAN A LEASE CONTRACT WHICH WAS A STANDARD PRINTED
FORM OBVIOUSLY PREPARED BY THE NEW YORK COMPANY'S LAWYERS.  INCLUDED IN
THE 18 PARAGRAPHS OF FINE PRINT WAS THE FOLLOWING PROVISION: 

"  ...  THE LESSEE HEREBY DESIGNATES FLORENCE WEINBERG, 47-21 FORTY
FIRST STREET, LONG ISLAND CITY, N.Y., AS AGENT FOR THE PURPOSE OF
ACCEPTING SERVICE OF ANY PROCESS WITHIN THE STATE OF NEW YORK." 

THE NEW YORK COMPANY LATER BROUGHT THIS SUIT FOR BREACH OF THE LEASE
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW
YORK.  RULE 4(D)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE AUTHORIZES
SERVICE OF PROCESS FOR SUITS IN FEDERAL COURTS TO BE MADE ON "AN AGENT
AUTHORIZED BY APPOINTMENT OR BY LAW TO RECEIVE SERVICE OF PROCESS." 
PROCESS WAS SERVED ON MRS. WEINBERG AS "AGENT" OF THE MICHIGAN
FARMERS.  SHE MAILED NOTICE OF THIS SERVICE TO THE SZUKHENTS.  A NEW
YORK LAWYER APPEARED ESPECIALLY FOR THEM AND MOVED TO QUASH THE SERVICE
ON THE GROUND THAT MRS. WEINBERG WAS NOT THEIR AGENT BUT WAS IN REALITY
THE AGENT OF THE NEW YORK COMPANY. 

THE RECORD ON THE MOTION TO QUASH SHOWS THAT THE SZUKHENTS HAD NEVER
HAD ANY DEALINGS WITH MRS. WEINBERG, THEIR SUPPOSED AGENT.  THEY HAD
NEVER MET, SEEN, OR HEARD OF HER.  SHE DID NOT SIGN THE LEASE, WAS NOT
A PARTY TO IT, RECEIVED NO COMPENSATION FROM THE SZUKHENTS, AND
UNDERTOOK NO OBLIGATION TO THEM.  IN FACT, SHE WAS HANDPICKED BY THE
NEW YORK COMPANY TO ACCEPT SERVICE OF PROCESS IN ANY SUITS THAT MIGHT
THEREAFTER BE FILED BY THE COMPANY.  ONLY AFTER THIS SUIT WAS BROUGHT
WAS IT RELUCTANTLY REVEALED THAT MRS. WEINBERG WAS IN TRUTH THE WIFE OF
ONE OF THE COMPANY'S OFFICERS.  THE DISTRICT JUDGE, APPLYING NEW YORK
LAW TO THESE FACTS, HELD THAT THERE HAD BEEN NO EFFECTIVE APPOINTMENT
OF MRS. WEINBERG AS AGENT OF THE SZUKHENTS, THAT THE SERVICE ON HER AS
THEIR "AGENT" WAS THEREFORE INVALID, AND THAT THE SERVICE SHOULD BE
QUASHED.  30 F.R.D. 3 (D.C.E.D.N.Y.).  THE COURT OF APPEALS, ONE JUDGE
DISSENTING, AFFIRMED, AGREEING THAT NO VALID AGENCY HAD BEEN CREATED. 
311 F.2D 79 (C.A.2D CIR.).  (FN1)  THIS COURT NOW REVERSES BOTH COURTS
BELOW AND HOLDS THAT THE CONTRACTUAL PROVISION PURPORTING TO APPOINT
MRS. WEINBERG AS AGENT IS VALID AND THAT SERVICE OF PROCESS ON HER AS
AGENT WAS THEREFORE VALID AND EFFECTIVE UNDER RULE 4(D)(1) AS ON AN
"AGENT AUTHORIZED BY APPOINTMENT  ...  TO RECEIVE SERVICE OF PROCESS." 
I DISAGREE WITH THAT HOLDING, BELIEVING THAT (1) WHETHER MRS. WEINBERG
WAS A VALID AGENT UPON WHOM SERVICE COULD VALIDLY BE EFFECTED UNDER
RULE 4(D)(1) SHOULD BE DETERMINED UNDER NEW YORK LAW AND THAT WE SHOULD
ACCEPT THE HOLDINGS OF THE FEDERAL DISTRICT JUDGE AND THE COURT OF
APPEALS SITTING IN NEW YORK THAT UNDER THAT STATE'S LAW THE PURPORTED
APPOINTMENT OF MRS. WEINBERG WAS INVALID AND INEFFECTIVE; (2) IF,
HOWEVER, RULE 4(D)(1) IS TO BE READ AS CALLING UPON US TO FORMULATE A
NEW FEDERAL DEFINITION OF AGENCY FOR PURPOSES OF SERVICE OF PROCESS, I
THINK OUR FORMULATION SHOULD EXCLUDE MRS. WEINBERG FROM THE CATEGORY OF
AN "AGENT AUTHORIZED BY APPOINTMENT  ...  TO RECEIVE SERVICE OF
PROCESS"; AND (3) UPHOLDING SERVICE OF PROCESS IN THIS CASE RAISES
SERIOUS QUESTIONS AS TO WHETHER THESE MICHIGAN FARMERS HAVE BEEN DENIED
DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS. 

                                   I. 

NO FEDERAL STATUTE HAS UNDERTAKEN TO REGULATE THE SORT OF AGENCY
TRANSACTION HERE INVOLVED.  (FN2)  THERE IS ONLY RULE 4(D)(1), WHICH
SAYS NOTHING MORE THAN THAT IN FEDERAL COURTS PERSONAL JURISDICTION MAY
BE OBTAINED BY SERVICE ON AN "AGENT."  THE RULE DOES NOT ATTEMPT TO
DEFINE WHO IS AN "AGENT."  TO ME IT IS EVIDENT THAT THE DRAFTSMEN OF
THE RULES DID NOT, BY USING THE WORD "AGENT," SHOW ANY INTENTION OF
THROWING OUT THE TRADITIONAL BODY OF STATE LAW AND CREATING A NEW AND
DIFFERENT FEDERAL DOCTRINE IN THIS BRANCH OF THE LAW OF AGENCY. 
THEREFORE, IT IS TO THE LAW OF NEW YORK - THE STATE WHERE THIS ACTION
WAS BROUGHT IN FEDERAL COURT, THE PLACE WHERE THE CONTRACT WAS DEEMED
BY THE PARTIES TO HAVE BEEN MADE, AND THE STATE THE LAW OF WHICH WAS
SPECIFIED AS DETERMINING RIGHTS AND LIABILITIES UNDER THE CONTRACT
(FN3) - THAT WE SHOULD TURN TO TEST THE VALIDITY OF THE APPOINTMENT. 
(FN4) 

I AGREE WITH THE DISTRICT JUDGE THAT THIS AGENCY IS INVALID UNDER THE
LAWS OF NEW YORK.  THE HIGHEST STATE COURT THAT HAS PASSED ON THE
QUESTION HAS HELD THAT, BECAUSE OF NEW YORK STATUTES, THE DESIGNATION
BY A NONRESIDENT OF NEW YORK OF AN AGENT TO RECEIVE SERVICE OF PROCESS
IS INEFFECTIVE; THE COURT, IN DENYING AN ORDER FOR INTERPLEADER, HELD
THAT ONLY RESIDENTS OF NEW YORK CAN MAKE SUCH AN APPOINTMENT, AND EVEN
THEN ONLY IN COMPLIANCE WITH THE TERMS OF THE CONTROLLING STATUTE. 
ROSENTHAL V. UNITED TRANSP.  CO., 196 APP. DIV. 540, 188 N.Y.S. 154. 
EVEN THE DISSENTING JUDGE IN THE COURT OF APPEALS IN THE PRESENT CASE
ACKNOWLEDGED THAT THE PURPORTED APPOINTMENT OF MRS. WEINBERG "WOULD NOT
SUBJECT THE DEFENDANTS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK."  THE COMPANY CITES THREE DECISIONS OF TRIAL JUDGES IN TWO
OF NEW YORK'S 62 COUNTIES WHICH HAVE UPHELD SERVICE UPON PURPORTED
AGENTS IN CIRCUMSTANCES LIKE THESE.  (FN5)  IN FACT, TWO OF THOSE
CASES, BOTH DECIDED IN NASSAU COUNTY, WHERE THE COMPANY DOES BUSINESS,
UPHELD SERVICE ON THIS SAME MRS. WEINBERG AS "AGENT" IN SUITS BROUGHT
FOR BREACH OF CONTRACT BY THIS SAME COMPANY, ONE AGAINST A DEFENDANT
LIVING IN THE DISTANT STATE OF CALIFORNIA.  BUT THESE TRIAL COURTS DID
NOT EVEN MENTION THE ROSENTHAL CASE, DECIDED BY A HIGHER COURT, AND IN
FACT CITED NO HIGHER COURT OPINIONS AT ALL WHICH DEALT WITH THE
QUESTION HERE RAISED.  IN SEEKING TO APPLY NEW YORK'S DEFINITION OF
"AGENT" WE SHOULD FOLLOW THE CONSIDERED OPINIONS OF THE HIGHEST
APPELLATE COURTS WHICH HAVE PASSED UPON THE QUESTION, NOT UNEXAMINED
DECISIONS OF TRIAL COURTS.  IN SO DOING, WE SEE THAT UNDER NEW YORK LAW
THIS SERVICE OF PROCESS IS INVALID.  ALSO, WE SHOULD ACCEPT THE VIEW OF
THE QUESTION TAKEN BY THE FEDERAL COURTS SITTING IN THE STATE WHOSE LAW
IS BEING APPLIED UNLESS WE ARE SHOWN "CLEARLY AND CONVINCINGLY" THAT
THESE COURTS ERRED.  (FN6)  HERE THERE IS NO SHOWING THAT THE COURT OF
APPEALS - WHERE NEITHER THE MAJORITY NOR THE DISSENTER DISPUTED THE
DISTRICT COURT'S VIEW OF NEW YORK LAW - HAS ERRED.  (FN7)

                                       II. 

IF RULE 4(D)(1) IS TO BE READ AS REQUIRING THIS COURT TO FORMULATE
NEW FEDERAL STANDARDS OF AGENCY TO BE RESOLVED IN EACH CASE AS A
FEDERAL QUESTION, RATHER THAN AS LEAVING THE QUESTION TO STATE LAW, I
THINK THE STANDARDS WE FORMULATE SHOULD CLEARLY AND UNEQUIVOCALLY
DENOUNCE AS INVALID ANY ALLEGED SERVICE OF PROCESS ON NONRESIDENTS
BASED ON PURPORTED AGENCY CONTRACTS HAVING NO MORE SUBSTANCE THAN THAT
NAMING MRS. WEINBERG. 

A. IN THE FIRST PLACE, WE SHOULD INTERPRET THE FEDERAL RULE AS
CONTEMPLATING A GENUINE AGENT, NOT A SHAM.  (FN8)  HERE THE "AGENT,"
MRS. WEINBERG, WAS UNKNOWN TO RESPONDENTS.  SHE WAS CHOSEN BY THE NEW
YORK COMPANY, WAS UNDER ITS SUPERVISION, AND, INDEED, WAS THE WIFE OF
ONE OF ITS OFFICERS - FACTS NO ONE EVER TOLD THESE FARMERS.  (FN9)
STATE COURTS IN GENERAL QUITE PROPERLY REFUSE TO UPHOLD SERVICE OF
PROCESS ON AN AGENT WHO, THOUGH OTHERWISE COMPETENT, HAS INTERESTS
ANTAGONISTIC TO THOSE OF THE PERSON HE IS MEANT TO REPRESENT.  (FN10)
IN MICHIGAN, THE PLACE WHERE THE CONTRACT HERE INVOLVED WAS SIGNED AND
WHERE THE MACHINERY WAS DELIVERED, THE STATE SUPREME COURT HAS SAID
THAT TO HOLD OTHERWISE WOULD OPEN "WIDE THE DOOR FOR THE PERPETRATION
OF FRAUD AND MALADMINISTRATION OF JUSTICE."  (FN11)  THERE IS NO REASON
FOR A FEDERAL RULE TO TOLERATE A LESS PUNCTILIOUS REGARD FOR FAIR
DEALING IN A MATTER SO VERY IMPORTANT TO A PERSON BEING SUED.  I CANNOT
BELIEVE THAT RULE 4(D)(1), WHICH MAY UNDER SOME CIRCUMSTANCES BE USED
TO SUBJECT PEOPLE TO JURISDICTION THOUSANDS OF MILES FROM HOME, WAS
EVER MEANT TO BRING A DEFENDANT INTO COURT BY ALLOWING SERVICE ON AN
"AGENT" WHOSE TRUE LOYALTY IS NOT TO THE PERSON BEING SUED BUT TO THE
ONE BRINGING SUIT.  THE CANONS OF ETHICS FORBID A LAWYER TO SERVE
CONFLICTING PARTIES, AT LEAST WITHOUT EXPRESS CONSENT GIVEN AFTER FULL
DISCLOSURE.  (FN12)  IF WE ARE TO CREATE A FEDERAL STANDARD, I WOULD
HOLD A 4(D)(1) AGENT TO A LIKE DUTY.  FURTHERMORE, AS THE COURTS BELOW
POINTED OUT, THERE WAS NO PROVISION IN THE CONTRACT ASSURING THE
DEFENDANTS OF NOTICE OF ANY ACTION BROUGHT AGAINST THEM IN NEW YORK,
AND NO UNDERTAKING BY THEIR PURPORTED AGENT OR ANYONE ELSE TO NOTIFY
THEM.  IT IS TRUE THAT ACTUAL NOTICE WAS GIVEN.  BUT THERE IS A
PROPHYLACTIC VALUE, ESPECIALLY WHERE CONTRACTS OF THIS KIND CAN IN
FUTURE CASES BE USED TO IMPOSE ON A NONRESIDENT DEFENDANT, IN REQUIRING
THAT THE CONTRACT PROVIDE FOR NOTICE IN THE FIRST PLACE.  WE HAVE, ON
DUE PROCESS GROUNDS, REQUIRED AS MUCH OF STATE STATUTES WHICH DECLARE A
STATUTORY AGENT FOR SUBSTITUTED SERVICE ON NONRESIDENTS.  WUCHTER V.
PIZZUTTI, 276 U.S. 13. 

B. BUT EVEN IF THIS CONTRACT HAD NAMED A DISINTERESTED AGENT AND
REQUIRED THAT NOTICE OF SERVICE BE GIVEN TO THE SZUKHENTS, I THINK THAT
ANY FEDERAL STANDARDS WE FORMULATE UNDER RULE 4(D)(1) SHOULD INVALIDATE
PURPORTED SERVICE OF PROCESS IN THE CIRCUMSTANCES OF CASES LIKE THIS
ONE.  TO GIVE EFFECT TO THE CLAUSE ABOUT SERVICE OF PROCESS IN THIS
STANDARDIZED FORM CONTRACT AMOUNTS TO A HOLDING THAT WHEN THE SZUKHENTS
LEASED THESE INCUBATORS THEY THEN AND THERE, LONG IN ADVANCE OF ANY
EXISTING JUSTICIABLE DISPUTE OR CONTROVERSY, EFFECTIVELY WAIVED ALL
OBJECTION TO THE JURISDICTION OF A COURT IN A DISTANT STATE THE PROCESS
OF WHICH COULD NOT OTHERWISE REACH THEM.  BOTH THE NATURE OF THE RIGHT
GIVEN UP AND THE NATURE OF THE CONTRACTUAL RELATION HERE MAKE SUCH AN
APPLICATION OF THE CONTRACT IMPOSSIBLE TO SQUARE WITH THE CONTEXT OF
AMERICAN LAW IN WHICH RULE 4(D)(1) WAS WRITTEN.  THE RIGHT TO HAVE A
CASE TRIED LOCALLY AND BE SPARED THE LIKELY INJUSTICE OF HAVING TO
LITIGATE IN A DISTANT OR BURDENSOME FORUM IS AS ANCIENT AS THE MAGNA
CHARTA.  (FN13)  STATES GENERALLY HAVE REFUSED TO ENFORCE AGREEMENTS IN
NOTES PURPORTING TO CONSENT TO FOREIGN JURISDICTION ALONG WITH CONSENT
TO CONFESSION OF JUDGMENT, SOMETIMES BECAUSE SUCH PROVISIONS ARE
OUTLAWED BY STATUTES (FN14) AND SOMETIMES BECAUSE THEY ARE OUTLAWED BY
COURTS IN THE ABSENCE OF SPECIFIC STATUTORY PROHIBITIONS.   (FN15)  IN
COUNTLESS CASES COURTS HAVE REFUSED TO ALLOW INSURANCE COMPANIES TO
ARRANGE THAT SUITS AGAINST THEM ON THEIR POLICIES MAY BE BROUGHT ONLY
AT THE HOME OFFICE OF THE COMPANY.  (FN16)  AND PRIOR DECISIONS OF OUR
OWN COURT HAVE GONE TO GREAT LENGTHS TO AVOID GIVING ENFORCEMENT TO
SUCH PROVISIONS.  COMPARE NATIONAL EXCHANGE BANK V. WILEY, 195 U.S.
257; GROVER & BAKER SEWING MACHINE CO. V. RADCLIFFE, 137 U.S. 287. 

C. WHERE ONE PARTY, AT ITS LEISURE AND DRAWING UPON EXPERT LEGAL
ADVICE, DRAFTS A FORM CONTRACT, COMPLETE WITH WAIVERS OF RIGHTS AND
PRIVILEGES BY THE OTHER, IT SEEMS TO ME TO DEFY COMMON SENSE FOR THIS
COURT TO FORMULATE A FEDERAL RULE DESIGNED TO TREAT THIS AS AN
AGREEMENT COOLLY NEGOTIATED AND HAMMERED OUT BY EQUALS.  WITH RESPECT
TO INSURANCE CONTRACTS DRAWN THIS WAY THIS COURT LONG AGO SAID: 

"THE PHRASEOLOGY OF CONTRACTS OF INSURANCE IS THAT CHOSEN BY THE
INSURER AND THE CONTRACT IN FIXED FORM IS TENDERED TO THE PROSPECTIVE
POLICY HOLDER WHO IS OFTEN WITHOUT TECHNICAL TRAINING, AND WHO RARELY
ACCEPTS IT WITH A LAWYER AT HIS ELBOW."  ASCHENBRENNER V. UNITED STATES
FIDELITY & GUARANTY CO., 292 U.S. 80, 84-85.  (FN17) 

IT IS HARDLY LIKELY THAT THESE MICHIGAN FARMERS, HIRING FARM
EQUIPMENT, WERE IN ANY POSITION TO DICKER OVER WHAT TERMS WENT INTO THE
CONTRACT THEY SIGNED.  YET HOLDING THIS SERVICE EFFECTIVE INEVITABLY
WILL MEAN THAT THE SZUKHENTS MUST GO NEARLY A THOUSAND MILES TO A
STRANGE CITY, HIRE NEW YORK COUNSEL, PAY WITNESSES TO TRAVEL THERE, PAY
THEIR OWN AND THEIR WITNESSES' HOTEL BILLS, TRY TO EXPLAIN A DISPUTE
OVER A FARM EQUIPMENT LEASE TO A NEW YORK JUDGE OR JURY, AND IN OTHER
WAYS BEAR THE BURDENS OF LITIGATION IN A DISTANT, AND LIKELY STRANGE,
CITY.  THE COMPANY, OF COURSE, MUST HAVE HAD THIS IN MIND WHEN IT PUT
THE CLAUSE IN THE CONTRACT.  IT DOUBTLESS HOPED, BY EASING INTO ITS
CONTRACT THIS INNOCENT-LOOKING PROVISION FOR SERVICE OF PROCESS IN NEW
YORK, TO SUCCEED IN MAKING IT AS BURDENSOME, DISADVANTAGEOUS, AND
EXPENSIVE AS POSSIBLE FOR LESSEES TO CONTEST ACTIONS BROUGHT AGAINST
THEM.  THIS COURT, IN APPLYING THE DOCTRINE OF FORUM NON CONVENIENS,
HAS SUGGESTED THAT "A PLAINTIFF SOMETIMES IS UNDER TEMPTATION TO RESORT
TO A STRATEGY OF FORCING THE TRIAL AT A MOST INCONVENIENT PLACE FOR AN
ADVERSARY."  GULF OIL CORP. V. GILBERT, 330 U.S. 501, 507.  WHAT WAS
THERE DEEMED TO BE A VERY UNJUST RESULT IS GREATLY AGGRAVATED, I THINK,
BY TODAY'S HOLDING THAT A MAN CAN, BY A CLEVERLY DRAFTED FORM, BE
SUCCESSFULLY INVEIGLED INTO GIVING UP IN ADVANCE OF ANY CONTROVERSY HIS
TRADITIONAL RIGHT TO BE SERVED WITH PROCESS AND SUED AT HOME.  RULE
4(D)(1), DESIGNED IN PART TO PRESERVE THE RIGHT TO HAVE A CASE TRIED IN
A CONVENIENT TRIBUNAL, SHOULD NOT BE USED TO FORMULATE FEDERAL
STANDARDS OF AGENCY THAT DEFEAT THIS PURPOSE. 

IT SHOULD BE UNDERSTOOD THAT THE EFFECT OF THE COURT'S HOLDING IS NOT
SIMPLY TO GIVE COURTS SITTING IN NEW UORK JURISDICTION OVER THESE
MICHIGAN FARMERS.  IT IS ALSO, AS A PRACTICAL MATTER, TO GUARANTEE THAT
WHENEVER THE COMPANY WISHES TO SUE SOMEONE WHO HAS CONTRACTED WITH IT,
IT CAN, BY FORCE OF THIS CLAUSE, CONFINE ALL SUCH SUITS TO COURTS
SITTING IN NEW YORK.  THIS COURT AND OTHERS HAVE FREQUENTLY REFUSED TO
HOLD VALID A CONTRACT WHICH, BEFORE ANY CONTROVERSY HAS ARISEN,
ATTEMPTS TO RESTRICT JURISDICTION TO A SINGLE COURT OR COURTS.  SEE
DOYLE V. CONTINENTAL INS. CO., 94 U.S. 535; INSURANCE CO. V. MORSE, 20
WALL.  445, 451; NUTE V. HAMILTON MUT. INS. CO., 6 GRAY (72 MASS.) 174;
6A CORBIN, CONTRACTS SEC. 1445.  HERE THIS CONTRACT AS EFFECTIVELY
OUSTS THE MICHIGAN COURTS OF JURISDICTION AS IF IT HAD SAID SO.
TODAY'S HOLDING DISREGARDS MICHIGAN'S INTEREST IN SUPERVISING THE
PROTECTION OF RIGHTS OF ITS CITIZENS WHO NEVER LEAVE THE STATE BUT ARE
SUED BY FOREIGN COMPANIES WITH WHICH THEY HAVE DONE BUSINESS.  CF.
TRAVELERS HEALTH ASSN. V. VIRGINIA EX REL. STATE CORP. COMM'N, 339 U.S.
643; MCGEE V. INTERNATIONAL LIFE INS. CO., 355 U.S. 220. 

D. TO FORMULATE STANDARDS OF AGENCY UNDER RULE 4(D)(1) WHICH ALLOW A
PLAINTIFF WITH A FORM CONTRACT TO EXTEND A DISTRICT COURT'S SERVICE OF
PROCESS FOR SUITS ON THAT CONTRACT ANYWHERE IN THE COUNTRY (OR,
PRESUMABLY, THE WORLD) IS TO DO SOMETHING WHICH CONGRESS HAS NEVER
DONE.  YEARS AGO MR. JUSTICE BRANDEIS, SPEAKING FOR THE COURT,
EMPHASIZED THAT CONGRESS HAD ALWAYS BEEN RELUCTANT TO GRANT POWER TO
FEDERAL DISTRICT COURTS TO SERVE PROCESS OUTSIDE THE TERRITORIAL
BORDERS OF THE STATE IN WHICH A DISTRICT COURT SITS, SAYING: 

"NO ACT HAS COME TO OUR ATTENTION IN WHICH SUCH POWER HAS BEEN
CONFERRED IN A PROCEEDING IN A CIRCUIT OR DISTRICT COURT WHERE A
PRIVATE CITIZEN IS THE SOLE DEFENDANT AND WHERE THE PLAINTIFF IS AT
LIBERTY TO COMMENCE THE SUIT IN THE DISTRICT OF WHICH THE DEFENDANT IS
AN INHABITANT OR IN WHICH HE CAN BE FOUND."  ROBERTSON V. RAILROAD
LABOR BOARD, 268 U.S. 619, 624-625. 

THIS COURT SHOULD REJECT ANY CONSTRUCTION OF RULE 4(D)(1) OR
FORMULATION OF FEDERAL STANDARDS UNDER IT TO HELP POWERFUL LITIGANTS TO
ACHIEVE BY UNBARGAINED TAKE-IT-OR-LEAVE-IT CONTRACTS WHAT CONGRESS HAS
CONSISTENTLY REFUSED TO PERMIT BY LEGISLATION. 

THE END RESULT OF TODAY'S HOLDING IS NOT DIFFICULT TO FORESEE. 
CLAUSES LIKE THE ONE USED AGAINST THE SZUKHENTS - CLAUSES WHICH
COMPANIES HAVE NOT INSERTED, I SUSPECT, BECAUSE THEY NEVER DREAMED A
COURT WOULD UPHOLD THEM - WILL SOON FIND THEIR WAY INTO THE
"BOILERPLATE" OF EVERYTHING FROM AN EQUIPMENT LEASE TO A CONDITIONAL
SALES CONTRACT.  TODAY'S HOLDING GIVES A GREEN LIGHT TO EVERY LARGE
COMPANY IN THIS COUNTRY TO CONTRIVE CONTRACTS WHICH DECLARE WITH FORCE
OF LAW THAT WHEN SUCH A COMPANY WANTS TO SUE SOMEONE WITH WHOM IT DOES
BUSINESS, THAT INDIVIDUAL MUST GO AND TRY TO DEFEND HIMSELF IN SOME
PLACE, NO MATTER HOW DISTANT, WHERE BIG BUSINESS ENTERPRISES ARE
CONCENTRATED, LIKE, FOR EXAMPLE, NEW YORK, CONNECTICUT, OR ILLINOIS, OR
ELSE SUFFER A DEFAULT JUDGMENT.  IN THIS VERY CASE THE COURT HOLDS THAT
BY THIS COMPANY'S CAREFULLY PREPARED CONTRACTUAL CLAUSE THE SZUKHENTS
MUST, TO AVOID A JUDGMENT RENDERED WITHOUT A FAIR AND FULL HEARING,
TRAVEL HUNDREDS OF MILES ACROSS THE CONTINENT, PROBABLY CRIPPLING THEIR
DEFENSE AND CERTAINLY DEPLETING WHAT SAVINGS THEY MAY HAVE, TO TRY TO
DEFEND THEMSELVES IN A COURT SITTING IN NEW YORK CITY.  I SIMPLY CANNOT
BELIEVE THAT CONGRESS, WHEN BY ITS SILENCE IT LET RULE 4(D)(1) GO INTO
EFFECT, MEANT FOR THAT RULE TO BE USED AS A MEANS TO ACHIEVE SUCH A FAR
REACHING, BURDENSOME, AND UNJUST RESULT.  HERETOFORE JUDICIAL GOOD
COMMON SENSE HAS, ON ONE GROUND OR ANOTHER, DISREGARDED CONTRACTUAL
PROVISIONS LIKE THIS ONE, NOT ENCOURAGED THEM.  IT IS A LONG TRIP FROM
SAN FRANCISCO - OR FROM HONOLULU OR ANCHORAGE - TO NEW YORK, BOSTON, OR
WILMINGTON.  AND THE TRIP CAN BE VERY EXPENSIVE, OFTEN COSTING MORE
THAN IT WOULD SIMPLY TO PAY WHAT IS DEMANDED.  THE VERY THREAT OF SUCH
A SUIT CAN BE USED TO FORCE PAYMENT OF ALLEGED CLAIMS, EVEN THOUGH THEY
BE WHOLLY WITHOUT MERIT.  THIS FACT WILL NOT BE NEWS TO COMPANIES
EXERTING THEIR ECONOMIC POWER TO WANGLE SUCH CONTRACTS.  NO STATUTE AND
NO RULE REQUIRES THIS COURT TO PLACE ITS IMPRIMATUR UPON THEM.  I WOULD
NOT. 

                                   III. 

THE COURT'S HOLDING THAT THESE MICHIGAN RESIDENTS ARE COMPELLED TO GO
TO NEW YORK TO DEFEND THEMSELVES IN A NEW YORK COURT BRINGS SHARPLY
INTO FOCUS CONSTITUTIONAL QUESTIONS AS TO WHETHER THEY WILL THEREBY BE
DENIED DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS.  WHILE IMPLICIT IN MUCH OF THE ORAL ARGUMENTS AND IN THE
BRIEFS, THESE QUESTIONS HAVE NOT BEEN ADEQUATELY DISCUSSED.  THE
QUESTIONS ARE SERIOUS AND INVOLVE MATTERS OF BOTH HISTORICAL AND
PRACTICAL IMPORTANCE.  THESE THINGS LEAD ME TO BELIEVE THAT THIS CASE
SHOULD BE SET DOWN FOR REARGUMENT ON THESE CONSTITUTIONAL QUESTIONS. 
MOREOVER, THIS COURT MIGHT, AFTER SUCH ARGUMENTS, CONCLUDE THAT THESE
CONSTITUTIONAL QUESTIONS ARE SO SUBSTANTIAL AND WEIGHTY THAT THE
NONCONSTITUTIONAL ISSUES SHOULD BE DECIDED IN FAVOR OF THE MICHIGAN
DEFENDANTS, THEREBY MAKING A CONSTITUTIONAL DECISION UNNECESSARY. 
WHILE I WOULD PREFER TO AWAIT MORE INFORMATIVE CONSTITUTIONAL
DISCUSSIONS BEFORE DECIDING THESE DUE PROCESS QUESTIONS, THE COURT
RULES AGAINST A REARGUMENT.  IN THIS SITUATION I AM COMPELLED NOW TO
REACH, CONSIDER, AND DECIDE THE CONSTITUTIONAL QUESTIONS.  MY VIEW IS
THAT THE COURT'S HOLDING DENIES THE SZUKHENTS DUE PROCESS OF LAW FOR
THE FOLLOWING, AMONG OTHER, REASONS. 

IT HAS BEEN ESTABLISHED CONSTITUTIONAL DOCTRINE SINCE PENNOYER V.
NEFF, 95 U.S. 714, WAS DECIDED IN 1878, THAT A STATE COURT IS WITHOUT
POWER TO SERVE ITS PROCESS OUTSIDE THE STATE'S BOUNDARIES SO AS TO
COMPEL A RESIDENT OF ANOTHER STATE AGAINST HIS WILL TO APPEAR AS A
DEFENDANT IN A CASE WHERE A PERSONAL JUDGMENT IS SOUGHT AGAINST HIM. 
THIS RULE MEANS THAT AN INDIVIDUAL HAS A CONSTITUTIONAL RIGHT NOT TO BE
SUED ON SUCH CLAIMS IN THE COURTS OF ANY STATE EXCEPT HIS OWN WITHOUT
HIS CONSENT.  THE PRIME VALUE OF THIS CONSTITUTIONAL RIGHT HAS NOT
DIMINISHED SINCE PENNOYER V. NEFF WAS DECIDED.  OUR STATES HAVE
INCREASED FROM 38 TO 50.  ALTHOUGH IMPROVED METHODS OF TRAVEL HAVE
INCREASED ITS SPEED AND AMELIORATED ITS DISCOMFORTS, IT CAN HARDLY BE
SAID THAT THESE ALMOST MIRACULOUS IMPROVEMENTS WOULD MAKE MORE
PALATABLE OR CONSTITUTIONAL NOW THAN IN 1878 A SYSTEM OF LAW THAT WOULD
COMPEL A MAN OR WOMAN FROM HAWAII, ALASKA, OR EVEN MICHIGAN TO TRAVEL
TO NEW YORK TO DEFEND AGAINST CIVIL LAWSUITS CLAIMING A FEW HUNDRED OR
THOUSAND DOLLARS GROWING OUT OF AN ORDINARY COMMERCIAL CONTRACT. 

IT CAN OF COURSE BE ARGUED WITH PLAUSIBILITY THAT THE PENNOYER
CONSTITUTIONAL RULE HAS NO APPLICABILITY HERE BECAUSE THE PROCESS
SERVED ON THE SZUKHENTS RAN FROM A FEDERAL, NOT A STATE, COURT.  BUT
THIS CASE WAS IN FEDERAL COURT SOLELY BECAUSE OF THE DISTRICT COURT'S
DIVERSITY JURISDICTION.  AND IN THE ABSENCE OF ANY OVERRIDING
CONSTITUTIONAL OR CONGRESSIONAL REQUIREMENTS THE RIGHTS OF THE PARTIES
WERE TO BE PRESERVED THERE AS THEY WOULD HAVE BEEN PRESERVED IN STATE
COURTS.  (FN18)  NEITHER THE FEDERAL CONSTITUTION NOR ANY FEDERAL
STATUTE REQUIRES THAT A PERSON WHO COULD NOT CONSTITUTIONALLY BE
COMPELLED TO SUBMIT HIMSELF TO A STATE COURT'S JURISDICTION FORFEITS
THAT CONSTITUTIONAL RIGHT BECAUSE HE IS SUED IN A FEDERAL DISTRICT
COURT ACTING FOR A STATE COURT SOLELY BY REASON OF THE HAPPENSTANCE OF
DIVERSITY JURISDICTION.  THE CONSTANT AIM OF FEDERAL COURTS, AT LEAST
SINCE ERIE R. CO. V. TOMPKINS, 304 U.S. 64, HAS BEEN, SO FAR AS
POSSIBLE, TO PROTECT ALL THE SUBSTANTIAL RIGHTS OF LITIGANTS IN BOTH
COURTS ALIKE.  AND SURELY THE RIGHT OF A PERSON NOT TO BE DRAGGED INTO
THE COURTS OF A DISTANT STATE TO DEFEND HIMSELF AGAINST A CIVIL LAWSUIT
CANNOT BE DISMISSED AS INSUBSTANTIAL.  HAPPILY, IN CONSIDERING THIS
QUESTION WE ARE NOT CONFRONTED WITH ANY CONGRESSIONAL ENACTMENT
DESIGNED TO BRING NONSTATE RESIDENTS INTO A FEDERAL DISTRICT COURT
PASSED PURSUANT TO CONGRESSIONAL POWER TO ESTABLISH A JUDICIAL SYSTEM
TO HEAR FEDERAL QUESTIONS UNDER ARTICLE III OF THE CONSTITUTION, OR ITS
POWER TO REGULATE COMMERCE UNDER ART. I, SEC. 8, OR ANY OF THE OTHER
CONSTITUTIONALLY GRANTED CONGRESSIONAL POWERS; WE ARE DEALING ONLY WITH
ITS POWER TO LET FEDERAL COURTS TRY LAWSUITS WHEN THE LITIGANTS RESIDE
IN DIFFERENT STATES.  WHATEVER POWER CONGRESS MIGHT HAVE IN THESE OTHER
AREAS TO EXTEND A DISTRICT COURT'S POWER TO SERVE PROCESS ACROSS STATE
LINES, SUCH POWER DOES NOT, I THINK, PROVIDE SOUND ARGUMENT TO JUSTIFY
RELIANCE UPON DIVERSITY JURISDICTION TO DESTROY A MAN'S CONSTITUTIONAL
RIGHT TO HAVE HIS CIVIL LAWSUIT TRIED IN HIS OWN STATE.  THE PROTECTION
OF SUCH A RIGHT IN CASES GROWING OUT OF LOCAL STATE LAWSUITS IS THE
REASON FOR AND THE HEART OF THE PENNOYER CONSTITUTIONAL DOCTRINE
RELEVANT HERE. 

THE COURT RELIES ON THE PRINTED PROVISION OF THE CONTRACT AS A
CONSENT OF THE SZUKHENTS TO BE SUED IN NEW YORK, MAKING THE PENNOYER
RULE INAPPLICABLE.  IN EFFECT THE COURT TREATS THE PROVISION AS A
WAIVER OF THE SZUKHENTS' CONSTITUTIONAL RIGHT NOT TO BE COMPELLED TO GO
TO A NEW YORK COURT TO DEFEND THEMSELVES AGAINST THE COMPANY'S CLAIMS. 
(FN19)  THIS PRINTED FORM PROVISION BURIED IN A MULTITUDE OF WORDS IS
TOO WEAK AN IMITATION OF A GENUINE AGREEMENT TO BE TREATED AS A WAIVER
OF SO IMPORTANT A CONSTITUTIONAL SAFEGUARD AS IS THE RIGHT TO BE SUED
AT HOME.  WAIVERS OF CONSTITUTIONAL RIGHTS TO BE EFFECTIVE, THIS COURT
HAS SAID, MUST BE DELIBERATELY AND UNDERSTANDINGLY MADE AND CAN BE
ESTABLISHED ONLY BY CLEAR, UNEQUIVOCAL, AND UNAMBIGUOUS LANGUAGE. 
(FN20)  IT STRAINS CREDULITY TO SUGGEST THAT THESE MICHIGAN FARMERS
EVER READ THIS CONTRACTUAL PROVISION ABOUT MRS. WEINBERG AND ABOUT
"ACCEPTING SERVICE OF ANY PROCESS WITHIN THE STATE OF NEW YORK."  AND
IT EXHAUSTS CREDULITY TO THINK THAT THEY OR ANY OTHER LAYMEN READING
THESE LEGALISTIC WORDS WOULD HAVE KNOWN OR EVEN SUSPECTED THAT THEY
AMOUNTED TO AN AGREEMENT OF THE SZUKHENTS TO LET THE COMPANY SUE THEM
IN NEW YORK SHOULD ANY CONTROVERSY ARISE.  THIS COURT SHOULD NOT PERMIT
VALUABLE CONSTITUTIONAL RIGHTS TO BE DESTROYED BY ANY SUCH SHARP
CONTRACTUAL PRACTICES.  THE IDEA THAT THERE WAS A KNOWING CONSENT OF
THE SZUKHENTS TO BE SUED IN THE COURTS OF NEW YORK IS NO MORE THAN A
FICTION - NOT EVEN AN AMIABLE ONE AT THAT. 

I WOULD AFFIRM THE JUDGMENT. 

FN1  BOTH THE DISTRICT COURT AND THE COURT OF APPEALS ALSO RESTED
THEIR DECISIONS ON THE CONTRACT'S LACK OF PROVISION FOR NOTICE OF THE
SERVICE OF PROCESS. 

FN2  OF COURSE, CONGRESS WOULD NOT LACK POWER TO REGULATE AT LEAST
SOME ASPECTS OF CONTRACTS LIKE THIS ONE.  CF. UNITED STATES V. SOUTH
EASTERN UNDERWRITERS ASSN., 322 U.S. 533. 

FN3  THIS IS NOT TO SUGGEST THAT A CONTRACTUAL STIPULATION AS TO WHAT
STATE LAW SHOULD GOVERN WOULD NECESSARILY BE BINDING ON STATE COURTS
WHICH DID NOT CHOOSE TO RECOGNIZE IT, INCLUDING THE COURTS OF MICHIGAN,
WHERE THE SZUKHENTS LIVED, SIGNED THE LEASE CONTRACT, AND RECEIVED THE
LEASED PROPERTY.  SEE WATSON V. EMPLOYERS LIABILITY ASSURANCE CORP.,
348 U.S. 66; SEE ALSO CLAY V. SUN INS. OFFICE LTD., 363 U.S. 207, 213
(DISSENTING OPINION); ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA
V. WOLFE, 331 U.S. 586, 625 (DISSENTING OPINION). 

FN4  IF NEW YORK WOULD LOOK IN TURN TO THE LAW OF MICHIGAN, THE PLACE
WHERE THE CONTRACT WAS SIGNED BY THE SZUKHENTS AND WAS TO BE PERFORMED,
THEN WE SHOULD DO THE SAME.  CF.  KLAXON CO. V. STENTOR ELEC.  MFG. 
CO., 313 U.S. 487. 

FN5  NATIONAL EQUIPMENT RENTAL, LTD., V. GRAPHIC ART DESIGNERS, INC.,
36 MISC. 2D 442, 234 N.Y.S.2D 61 (SUP. CT., NASSAU COUNTY); NATIONAL
EQUIPMENT RENTAL, LTD., V. BORIGHT, N.Y.L.J., JULY 17, 1962, P. 8, COL.
8 (SUP. CT., NASSAU COUNTY); EMERSON RADIO & PHONOGRAPH CORP. V.
ESKIND, 32 MISC. 2D 1038, 228 N.Y.S.2D 841 (SUP. CT., N.Y. COUNTY). 

FN6  HELVERING V. STUART, 317 U.S. 154, 164; SEE ALSO UNITED STATES
V. DURHAM LUMBER CO., 363 U.S. 522, 526-527; PROPPER V. CLARK, 337 U.S.
472, 486-487. 

FN7  SINCE NEW YORK WOULD NOT HOLD MRS. WEINBERG A VALID AGENT TO
RECEIVE SERVICE OF PROCESS, SERVICE CANNOT BE UPHELD AS AUTHORIZED BY
THAT PART OF RULE 4(D)(7) WHICH VALIDATES SERVICE "IN THE MANNER
PRESCRIBED BY THE LAW OF THE STATE." 

FN8  SEE SZABO V. KEESHIN MOTOR EXPRESS CO., 10 F.R.D. 275 (D.C.N.D.
OHIO); FLEMING V. MALOUF, 7 F.R.D. 56 (D.C.W.D.N.Y.). 

FN9  APPARENTLY THE DISTRICT JUDGE ASKED THE COMPANY TO SUPPLY
PARTICULARS OF MRS. WEINBERG'S RELATIONSHIP TO THE COMPANY, BUT THIS
INFORMATION WAS NEVER FURNISHED.  FOR ALL THAT APPEARS, SHE MAY BE A
STOCKHOLDER OR DIRECTOR OF THE COMPANY. 

FN10  SEE CASES COLLECTED IN 72 C.J.S., PROCESS SEC. 50. 

FN11  JOHN W. MASURY & SON V. LOWTHER, 299 MICH. 516, 525, 300 N.W.
866, 870. 

FN12  CANON OF ETHICS 6. 

FN13  MAGNA CHARTA, CC. 17-19: 

"17.  COMMON PLEAS SHALL NOT FOLLOW OUR COURT, BUT SHALL BE HELD IN
ANY CERTAIN PLACE. 

"18.  TRIALS UPON THE WRITS OF NOVEL DISSEISIN, OF MORT D'ANCESTRE
(DEATH OF THE ANCESTOR), AND DARRIEN PRESENTMENT (LAST PRESENTATION)
SHALL NOT BE TAKEN BUT IN THEIR PROPER COUNTIES, AND IN THIS MANNER:
WE, OR OUR CHIEF JUSTICIARY, IF WE ARE OUT OF THE KINGDOM, WILL SEND
TWO JUSTICIARIES INTO EACH COUNTY, FOUR TIMES IN THE YEAR, WHO, WITH
FOUR KNIGHTS OF EACH COUNTY, CHOSEN BY THE COUNTY, SHALL HOLD THE
AFORESAID ASSIZES, WITHIN THE COUNTY ON THE DAY, AND AT THE PLACE
APPOINTED. 

"19.  AND IF THE AFORESAID ASSIZES CANNOT BE TAKEN ON THE DAY OF THE
COUNTY-COURT, LET AS MANY KNIGHTS AND FREEHOLDERS, OF THOSE WHO WERE
PRESENT AT THE COUNTY-COURT REMAIN BEHIND, AS SHALL BE SUFFICIENT TO DO
JUSTICE, ACCORDING TO THE GREAT OR LESS IMPORTANCE OF THE BUSINESS." 
REPRINTED IN S. DOC. NO. 232, 66TH CONG., 2D SESS. 

FN14  E.G., IND. STAT., 1933, SEC. 2-2904; MASS. GEN. LAWS, 1956, C.
231, SEC. 13A. 

FN15  E.G., FARQUHAR & CO. V. DEHAVEN, 70 W.VA. 738, 75 S.E. 65; SEE
ALSO HAMILTON V. SCHOENBERGER, 47 IOWA 385. 

FN16  E.G., NUTE V. HAMILTON MUT. INS. CO., 6 GRAY (72 MASS.) 174;
SLOCUM V. WESTERN ASSUR.  CO., 42 F. 235 (D.C.S.D.N.Y.); SEE CASES
COLLECTED IN 56 A.L.R.2D 300, 312-316.   FN17  SEE ALSO, E.G., BISSO V.
INLAND WATERWAYS CORP., 349 U.S. 85, 90-91; RAILROAD CO. V. LOCKWOOD,
17 WALL.  357, 379-382. 

FN18  CF. GUARANTY TRUST CO. V. YORK, 326 U.S. 99. 

FN19  IT MAY BE THAT THE COURT INTENDS ITS DISCLAIMER OF PASSING ON
VENUE OF THE NEW YORK FEDERAL DISTRICT COURT TO IMPLY THAT THE SERVICE
ON THE SZUKHENTS'"AGENT" MIGHT NOT AFTER ALL COMPEL THEM TO GO TO NEW
YORK TO DEFEND THEMSELVES AGAINST A DEFAULT JUDGMENT, SHOULD THEY
PREVAIL ON THE DISCRETION OF THE JUDGE IN NEW YORK TO GRANT THEM A
TRANSFER OF VENUE UNDER 28 U.S.C. SEC. 1404(A).  IF SO, APART FROM
DISREGARDING THE TROUBLE AND EXPENSE WHICH DEFENDANTS WOULD UNDERGO IN
APPEARING AND ANSWERING THE COMPLAINT IN NEW YORK AND PRESENTING
EVIDENCE IN HOPE OF OBTAINING A DISCRETIONARY CHANGE OF VENUE, THE
COURT'S HOLDING REALLY WOULD HAVE NO PRACTICAL EFFECT WHATEVER.  BUT
THE COURT CAREFULLY REFRAINS FROM HOLDING THAT VENUE IN NEW YORK COULD
BE SUCCESSFULLY CHALLENGED, AND CONSEQUENTLY I MUST CONSIDER THE
STATEMENT IN TEXT TO BE CORRECT. 

FN20  JOHNSON V. ZERBST, 304 U.S. 458, 464.  SEE ALSO, E.G., FAY V.
NOIA, 372 U.S. 391, 439; EMSPAK V. UNITED STATES, 349 U.S. 190, 197
198; AETNA INS. CO. V. KENNEDY EX REL. BOGASH, 301 U.S. 389, 393;
HODGES V. EASTON, 106 U.S. 408, 412. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHEIF JUSTICE AND MR. JUSTICE
GOLDBERG JOIN, DISSENTING. 

I WOULD AFFIRM.  IN MY VIEW, FEDERAL STANDARDS AND NOT STATE LAW MUST
DEFINE WHO IS "AN AGENT AUTHORIZED BY APPOINTMENT" WITHIN THE MEANING
OF RULE 4(D)(1).  SEE MISSISSIPPI PUB. CORP. V. MURPHREE, 326 U.S. 438,
445-446; BOWLES V. SCHMITT & CO., 170 F.2D 617, 620; 1 BARRON AND
HOLTZOFF, FEDERAL PRACTICE (WRIGHT REV. 1960), AT 701.  IN FORMULATING
THESE STANDARDS I WOULD, FIRST, CONSTRUE RULE 4(D)(1) TO DENY VALIDITY
TO THE APPOINTMENT OF A PURPORTED AGENT WHOSE INTERESTS CONFLICT WITH
THOSE OF HIS SUPPOSED PRINCIPAL, SEE HARTSOCK V. COMMODITY CREDIT
CORP., 10 F.R.D. 181, 183.  SECOND, I WOULD REQUIRE THAT THE
APPOINTMENT INCLUDE AN EXPLICIT CONDITION THAT THE AGENT AFTER SERVICE
TRANSMIT THE PROCESS FORTHWITH TO THE PRINCIPAL.  ALTHOUGH OUR DECISION
IN WUCHTER V. PIZZUTTI, 276 U.S. 13, DEALT WITH THE CONSTITUTIONALITY
OF A STATE STATUTE, THE REASONING OF THAT CASE IS PERSUASIVE THAT, IN
FASHIONING A FEDERAL AGENCY RULE, WE SHOULD ENGRAFT THE SAME
REQUIREMENT UPON RULE 4(D)(1).  THIRD, SINCE THE CORPORATE PLAINTIFF
PREPARED THE PRINTED FORM CONTRACT, I WOULD NOT HOLD THE INDIVIDUAL
PURCHASER BOUND BY THE APPOINTMENT WITHOUT PROOF, IN ADDITION TO HIS
MERE SIGNATURE ON THE FORM, THAT THE INDIVIDUAL UNDERSTANDINGLY
CONSENTED TO BE SUED IN A STATE NOT THAT OF HIS RESIDENCE.  WE MUST
BEAR IN MIND WHAT WAS SAID IN UNITED STATES V. RUMELY, 345 U.S. 41, 44,
THAT WE MUST STRIVE NOT TO BE "THAT 'BLIND' COURT, AGAINST WHICH MR.
CHIEF JUSTICE TAFT ADMONISHED IN A FAMOUS PASSAGE,  ...  THAT DOES NOT
SEE WHAT 'ALL OTHERS CAN SEE AND UNDERSTAND.'"  IT OFFENDS COMMON SENSE
TO TREAT A PRINTED FORM WHICH CLOSES AN INSTALLMENT SALE AS EMBODYING
TERMS TO ALL OF WHICH THE INDIVIDUAL KNOWINGLY ASSENTED.  THE SALES
PITCH AIMS SOLELY AT GETTING THE SIGNATURE ON THE FORM AND WASTES NO
TIME EXPLAINING OR EVEN MENTIONING THE PRINT.  BEFORE I WOULD FIND THAT
AN INDIVIDUAL PURCHASER HAS KNOWINGLY AND INTELLIGENTLY CONSENTED TO BE
SUED IN ANOTHER STATE, I WOULD REQUIRE MORE PROOF OF THAT FACT THAN IS
PROVIDED BY HIS MERE SIGNATURE ON THE FORM. 

SINCE THESE STANDARDS WERE NOT SATISFIED IN THIS CASE, THE SERVICE OF
THE SUMMONS AND COMPLAINT WAS PROPERLY QUASHED. 
..END :







HUMPHREY V. MOORE 375 U.S. 335 


NO. 17.  ARGUED OCTOBER 16, 1963.  - DECIDED JANUARY 6, 1964.* - 356
S.W.2D 241, REVERSED. 

*TOGETHER WITH NO. 18, GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL
UNION NO. 89, V. MOORE ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


A DECISION OF A JOINT CONFERENCE COMMITTEE PURPORTED TO DETERMINE THE
RELATIVE SENIORITY RIGHTS OF EMPLOYEES OF TWO COMPANIES UNDER A
COLLECTIVE BARGAINING CONTRACT.  RESPONDENT MOORE, ON BEHALF OF HIMSELF
AND OTHER AGGRIEVED EMPLOYEES OF ONE OF THE COMPANIES, BROUGHT THIS
CLASS ACTION IN A KENTUCKY STATE COURT FOR AN INJUNCTION AGAINST THE
UNION AND THE COMPANY TO PREVENT THE DECISION OF THE COMMITTEE TO
DOVETAIL SENIORITY LISTS FROM BEING CARRIED OUT.  THE KENTUCKY COURT OF
APPEALS DECREED A PERMANENT INJUNCTION.  HELD: 

1.  THE ACTION IS ONE ARISING UNDER SEC. 301 OF THE LABOR MANAGEMENT
RELATIONS ACT AND IS A CASE CONTROLLED BY FEDERAL LAW, EVEN THOUGH
BROUGHT IN THE STATE COURT.  PP. 342-344. 

(A)  MOORE CONTENDS THAT THE DECISION OF THE COMMITTEE WAS NOT ONE
WHICH IT WAS EMPOWERED TO MAKE; IN HIS VIEW THE RESULTING AWARD WAS
THEREFORE A NULLITY AND ANY DISCHARGE PURSUANT THERETO WOULD BE A
BREACH OF THE COLLECTIVE BARGAINING AGREEMENT.  P. 342. 

(B)  THE COMPLAINT ALLEGES THAT THE COMMITTEE'S DECISION WAS OBTAINED
BY DISHONEST UNION CONDUCT, AND COULD THEREFORE NOT BE RELIED ON AS A
BASIS FOR DISCHARGE WITHOUT BREACHING THE COLLECTIVE BARGAINING
AGREEMENT.  PP. 342-343. 

2.  THE DECISION OF THE JOINT CONFERENCE COMMITTEE TO DOVETAIL
SENIORITY LISTS WAS A DECISION WHICH SEC. 5 OF THE CONTRACT EMPOWERED
THE COMMITTEE TO MAKE.  PP. 345-348. 

3.  THERE IS NOT ADEQUATE SUPPORT IN THE RECORD IN THIS CASE FOR THE
COMPLAINT'S ATTACK UPON THE INTEGRITY OF THE UNION AND OF THE
PROCEDURES WHICH LED TO THE COMMITTEE'S DECISION.  P. 348. 

4.  THE EVIDENCE IN THIS CASE SHOWS NO BREACH BY THE UNION OF ITS
DUTY OF FAIR REPRESENTATION.  P. 350. 

5.  THE COMPLAINING EMPLOYEES WERE NOT INADEQUATELY REPRESENTED AT
THE HEARING BEFORE THE COMMITTEE AND WERE NOT DEPRIVED OF A FAIR
HEARING.  PP. 350-351. 

6.  THE DECISION OF THE COMMITTEE, REACHED AFTER PROCEEDINGS ADEQUATE
UNDER THE AGREEMENT, IS FINAL AND BINDING UPON THE PARTIES, AS PROVIDED
BY THE CONTRACT.  P. 351. 

HUMPHREY ET AL. V. MOORE ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS WHETHER THE KENTUCKY COURT OF APPEALS PROPERLY
ENJOINED IMPLEMENTATION OF THE DECISION OF A JOINT EMPLOYER-EMPLOYEE
COMMITTEE PURPORTING TO SETTLE CERTAIN GRIEVANCES IN ACCORDANCE WITH
THE TERMS OF A COLLECTIVE BARGAINING CONTRACT.  THE DECISION OF THE
COMMITTEE DETERMINED THE RELATIVE SENIORITY RIGHTS OF THE EMPLOYEES OF
TWO COMPANIES, DEALERS TRANSPORT COMPANY OF MEMPHIS, TENNESSEE, AND E&L
TRANSPORT COMPANY OF DETROIT, MICHIGAN.  WE ARE OF THE OPINION THAT THE
KENTUCKY COURT ERRED AND WE REVERSE ITS JUDGMENT. 

PART OF THE BUSINESS OF EACH OF THESE COMPANIES WAS THE
TRANSPORTATION OF NEW AUTOMOBILES FROM THE ASSEMBLY PLANT OF THE FORD
MOTOR COMPANY IN LOUISVILLE, KENTUCKY.  IN THE FACE OF DECLINING
BUSINESS RESULTING FROM SEVERAL FACTORS, THE TWO COMPANIES WERE
INFORMED BY FORD THAT THERE WAS ROOM FOR ONLY ONE OF THEM IN THE
LOUISVILLE OPERATION.  AFTER CONSIDERING THE MATTER FOR SOME TIME, THE
TWO COMPANIES MADE THESE ARRANGEMENTS:  E&L WOULD SELL TO DEALERS ITS
"SECONDARY" AUTHORITY OUT OF LOUISVILLE, THE PURCHASE PRICE TO BE A
NOMINAL SUM ROUGHLY EQUAL TO THE COST OF EFFECTING THE TRANSFER OF
AUTHORITY; E&L WOULD ALSO SELL TO DEALERS ITS AUTHORITY TO SERVE
CERTAIN POINTS IN MISSISSIPPI AND LOUISIANA; AND DEALERS WOULD SELL TO
E&L ITS INITIAL AUTHORITY OUT OF LORAIN, OHIO, ALONG WITH CERTAIN
EQUIPMENT AND TERMINAL FACILITIES.  THE PURPOSE OF THESE ARRANGEMENTS
WAS TO CONCENTRATE THE TRANSPORTATION ACTIVITIES OF E&L IN THE MORE
NORTHERLY AREA AND THOSE OF DEALERS IN THE SOUTHERN ZONE.  THE
TRANSFERS WERE SUBJECT TO THE APPROVAL OF REGULATORY AGENCIES. 

THE EMPLOYEES OF BOTH DEALERS AND E&L WERE REPRESENTED BY THE SAME
UNION, GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 89. 
ITS PRESIDENT, PAUL PRIDDY, AS THE RESULT OF INQUIRY FROM E&L BY HIS
ASSISTANT, UNDERSTOOD THAT THE TRANSACTION BETWEEN THE COMPANIES
INVOLVED NO TRADES, SALES, OR EXCHANGES OF PROPERTIES BUT ONLY A
WITHDRAWAL BY E&L AT THE DIRECTION OF THE FORD MOTOR COMPANY.  HE
CONSEQUENTLY ADVISED THE E&L EMPLOYEES THAT THEIR SITUATION WAS
PRECARIOUS.  WHEN LAYOFFS AT E&L BEGAN THREE E&L EMPLOYEES FILED
GRIEVANCES CLAIMING THAT THE SENIORITY LISTS OF DEALERS AND E&L SHOULD
BE "SANDWICHED" AND THE E&L EMPLOYEES BE TAKEN ON AT DEALERS WITH THE
SENIORITY THEY HAD ENJOYED AT E&L.  THE GRIEVANCES WERE PLACED BEFORE
THE LOCAL JOINT COMMITTEE, PRIDDY OR HIS ASSISTANT MEANWHILE ADVISING
DEALERS EMPLOYEES THAT THEY HAD "NOTHING TO WORRY ABOUT" SINCE E&L
EMPLOYEES HAD NO CONTRACT RIGHT TO TRANSFER UNDER THESE CIRCUMSTANCES. 

THE COLLECTIVE BARGAINING CONTRACT INVOLVED COVERED A MULTI-EMPLOYER,
MULTI-LOCAL UNION UNIT NEGOTIATED ON BEHALF OF THE EMPLOYERS BY
AUTOMOBILE TRANSPORTERS LABOR DIVISION AND ON BEHALF OF THE UNIONS BY
NATIONAL TRUCKAWAY AND DRIVEAWAY CONFERENCE.  ALMOST IDENTICAL
CONTRACTS WERE EXECUTED BY EACH COMPANY IN THE UNIT AND BY THE
APPROPRIATE LOCAL UNION.  ACCORDING TO ART. 4, SEC. 1 OF THE CONTRACT
"SENIORITY RIGHTS FOR EMPLOYEES SHALL PREVAIL" AND "ANY CONTROVERSY
OVER THE EMPLOYEES' STANDING ON SUCH LISTS SHALL BE SUBMITTED TO THE
JOINT GRIEVANCE PROCEDURE  ... ."  SECTION 5 OF THE SAME ARTICLE, OF
CENTRAL SIGNIFICANCE HERE, WAS AS FOLLOWS: 

"IN THE EVENT THAT THE EMPLOYER ABSORBS THE BUSINESS OF ANOTHER
PRIVATE, CONTRACT OR COMMON CARRIER, OR IS A PARTY TO A MERGER OF
LINES, THE SENIORITY OF THE EMPLOYEES ABSORBED OR AFFECTED THEREBY
SHALL BE DETERMINED BY MUTUAL AGREEMENT BETWEEN THE EMPLOYER AND THE
UNIONS INVOLVED.  ANY CONTROVERSY WITH RESPECT TO SUCH MATTER SHALL BE
SUBMITTED TO THE JOINT GRIEVANCE PROCEDURE." 

ARTICLE 7 CALLED FOR GRIEVANCES TO BE FIRST TAKEN UP BETWEEN THE
EMPLOYER AND THE LOCAL UNION AND, IF NOT SETTLED, TO BE SUBMITTED TO
THE LOCAL JOINT COMMITTEE WHERE THE UNION AND THE EMPLOYER WERE TO HAVE
EQUAL VOTES.  FAILING SETTLEMENT BY MAJORITY VOTE OF THE MEMBERS OF THE
LOCAL COMMITTEE, THE MATTER COULD BE TAKEN TO THE AUTOMOBILE
TRANSPORTERS JOINT CONFERENCE COMMITTEE UPON WHICH THE EMPLOYERS AND
THE UNIONS IN THE OVERALL BARGAINING UNIT HAD AN EQUAL NUMBER OF
REPRESENTATIVES.  DECISIONS OF THE JOINT CONFERENCE COMMITTEE WERE TO
BE "FINAL AND CONCLUSIVE AND BINDING UPON THE EMPLOYER AND THE UNION,
AND THE EMPLOYEES INVOLVED."  HOWEVER, IF THE JOINT CONFERENCE
COMMITTEE WAS UNABLE TO REACH A DECISION THE MATTER WAS TO BE SUBMITTED
TO ARBITRATION AS PROVIDED IN THE CONTRACT. 

ARTICLE 7 ALSO PROVIDED THAT: 

(D)  "IT IS AGREED THAT ALL MATTERS PERTAINING TO THE INTERPRETATION
OF ANY PROVISION OF THIS AGREEMENT, WHETHER REQUESTED BY THE EMPLOYER
OR THE UNION, MUST BE SUBMITTED TO THE FULL COMMITTEE OF THE AUTOMOBILE
TRANSPORTERS JOINT CONFERENCE COMMITTEE, WHICH COMMITTEE, AFTER
LISTENING TO TESTIMONY ON BOTH SIDES, SHALL MAKE A DECISION." 

OTHER PROVISIONS OF THE CONTRACT STATED THAT IT WAS "THE INTENTION OF
THE PARTIES TO RESOLVE ALL QUESTIONS OF INTERPRETATION BY MUTUAL
AGREEMENT" AND THAT THE EMPLOYER AGREED "TO BE BOUND BY ALL OF THE
TERMS AND PROVISIONS OF THIS AGREEMENT, AND ALSO AGREES TO BE BOUND BY
THE INTERPRETATIONS AND ENFORCEMENT OF THE AGREEMENT." 

THE GRIEVANCES OF THE E&L EMPLOYEES WERE SUBMITTED DIRECTLY TO THE
LOCAL JOINT COMMITTEE AND ENDORSED "DEADLOCKED TO DETROIT FOR
INTERPRETATION" OVER THE SIGNATURES OF THE LOCAL UNION PRESIDENT AND
THE DEALERS REPRESENTATIVE ON THE COMMITTEE.  LATER, HOWEVER, THE LOCAL
UNION, HAVING BEEN MORE FULLY ADVISED AS TO THE NATURE OF THE
TRANSACTION BETWEEN THE TWO COMPANIES, DECIDED TO RECOMMEND TO THE
JOINT CONFERENCE COMMITTEE THAT THE SENIORITY LISTS OF THE TWO
COMPANIES BE DOVETAILED AND THE E&L EMPLOYEES BE EMPLOYED AT DEALERS
WITH SENIORITY RIGHTS BASED UPON THOSE WHICH THEY HAD ENJOYED AT E&L.
THE THREE SHOP STEWARDS WHO REPRESENTED THE DEALERS EMPLOYEES BEFORE
THE JOINT CONFERENCE COMMITTEE MEETING IN DETROIT WERE SO ADVISED BY
THE UNION IMMEDIATELY PRIOR TO THE OPENING OF THE HEARING.  AFTER
HEARING FROM THE COMPANY, THE UNION AND THE STEWARDS REPRESENTING
DEALERS EMPLOYEES, THE JOINT CONFERENCE COMMITTEE THEREUPON DETERMINED
THAT "IN ACCORDANCE WITH ARTICLE 4 AND PARTICULARLY SUB-SECTIONS 4 AND
5" OF THE AGREEMENT THE EMPLOYEES OF E&L AND OF DEALERS SHOULD "BE
SANDWICHED IN ON MASTER SENIORITY BOARDS USING THE PRESENTLY
CONSTITUTED SENIORITY LISTS AND THE DATES CONTAINED THEREIN  ...  ." 

SINCE E&L WAS AN OLDER COMPANY AND MOST OF ITS EMPLOYEES HAD MORE
SENIORITY THAN THE DEALERS EMPLOYEES, THE DECISION ENTAILED THE LAYOFF
OF A LARGE NUMBER OF DEALERS EMPLOYEES TO PROVIDE OPENINGS FOR THE E&L
DRIVERS. 

RESPONDENT MOORE, ON BEHALF OF HIMSELF AND OTHER DEALERS EMPLOYEES,
THEN BROUGHT THIS CLASS ACTION IN A KENTUCKY STATE COURT PRAYING FOR AN
INJUNCTION AGAINST THE UNION AND THE COMPANY TO PREVENT THE DECISION OF
THE JOINT CONFERENCE COMMITTEE FROM BEING CARRIED OUT.  DAMAGES WERE
ASKED IN AN ALTERNATIVE COUNT AND CERTAIN E&L EMPLOYEES WERE ADDED AS
DEFENDANTS BY AMENDMENT TO THE COMPLAINT.  (FN1)  THE COMPLAINT ALLEGED
THAT DEALERS EMPLOYEES HAD RELIED UPON THE UNION TO REPRESENT THEM,
THAT THE PRESIDENT OF LOCAL 89, PAUL PRIDDY, ASSURED DEALERS EMPLOYEES
THAT THEY HAD NOTHING TO WORRY ABOUT AND THAT PRECEDENT IN THE INDUSTRY
PROVIDED THAT WHEN A NEW BUSINESS IS TAKEN OVER, ITS EMPLOYEES DO NOT
DISPLACE THE ORIGINAL EMPLOYEES OF THE ACQUIRING COMPANY; IT FURTHER
ALLEGED THAT PRIDDY HAD DELIBERATELY "DEADLOCKED" THE LOCAL JOINT
COMMITTEE AND THAT THE DEALERS EMPLOYEES LEARNED FOR THE FIRST TIME
BEFORE THE JOINT CONFERENCE COMMITTEE IN DETROIT, THAT PRIDDY FAVORED
DOVETAILING THE SENIORITY LISTS.  PRIDDY'S ACTIONS, THE COMPLAINT WENT
ON, "IN DECEIVING THESE PLAINTIFFS AS TO HIS POSITION LEFT THEM WITHOUT
REPRESENTATION BEFORE THE JOINT CONFERENCE COMMITTEE."  THE DECISION,
ACCORDING TO THE COMPLAINT, WAS "CONTRIVED, PLANNED AND BROUGHT ABOUT
BY PAUL PRIDDY" WHO "HAS DECEIVED AND FAILED COMPLETELY TO REPRESENT
SAID EMPLOYEES" AND WHOSE "FALSE AND DECEITFUL ACTION" AND "CONNIVANCE
...  WITH THE EMPLOYEES OF E & L" THREATENED THE JOBS OF DEALERS
EMPLOYEES.  THE INTERNATIONAL UNION IS SAID TO HAVE "CONSPIRED WITH AND
ASSISTED THE DEFENDANT, LOCAL NO. 89, AND ITS PRESIDENT, PAUL PRIDDY,
IN BRINGING ABOUT THIS RESULT  ...  ."  THE DECISION OF THE JOINT
CONFERENCE COMMITTEE WAS CHARGED TO BE ARBITRARY AND CAPRICIOUS,
CONTRARY TO THE EXISTING PRACTICE IN THE INDUSTRY AND VIOLATIVE OF THE
COLLECTIVE BARGAINING CONTRACT. 

AFTER HEARING, THE TRIAL COURT DENIED A TEMPORARY AND PERMANENT
INJUNCTION.  (FN2)  THE COURT OF APPEALS OF THE COMMONWEALTH OF
KENTUCKY REVERSED AND GRANTED A PERMANENT INJUNCTION, TWO JUDGES
DISSENTING.  356 S.W.2D 241.  IN THE VIEW OF THAT COURT, ART. 4 SEC. 5
COULD HAVE NO APPLICATION TO THE CIRCUMSTANCES OF THIS CASE SINCE IT
CAME INTO PLAY ONLY IF THE ABSORBING COMPANY AGREED TO HIRE THE
EMPLOYEES OF THE ABSORBED COMPANY.  THE CLAUSE WAS SAID TO DEAL WITH
SENIORITY, NOT WITH INITIAL EMPLOYMENT.  THEREFORE, IT WAS SAID, THE
DECISION OF THE JOINT CONFERENCE COMMITTEE WAS NOT BINDING BECAUSE THE
QUESTION OF EMPLOYING E&L DRIVERS WAS NOT "ARBITRABLE" AT ALL UNDER
THIS SECTION.  THE COURT OF APPEALS, HOWEVER, WENT ON TO HOLD THAT EVEN
IF IT WERE OTHERWISE, THE DECISION COULD NOT STAND SINCE THE SITUATION
INVOLVED ANTAGONISTIC INTERESTS OF TWO SETS OF EMPLOYEES REPRESENTED BY
THE SAME UNION ADVOCATE.  THE RESULT WAS INADEQUATE REPRESENTATION OF
THE DEALERS EMPLOYEES IN A CONTEXT WHERE DEALERS ITSELF WAS ESSENTIALLY
NEUTRAL.  AGAINST SUCH A BACKDROP, THE ERRONEOUS DECISION OF THE BOARD
BECAME "ARBITRARY AND VIOLATIVE OF NATURAL JUSTICE."  KENTUCKY CASES
WERE CITED AND RELIED UPON.  WE GRANTED BOTH THE PETITION FILED BY THE
E&L EMPLOYEES IN NO. 17 AND THE PETITION IN NO. 18, FILED BY THE LOCAL
UNION.  371 U.S. 966, 967. 

                   I. 

SINCE ISSUES CONCERNING THE JURISDICTION OF THE COURTS AND THE
GOVERNING LAW ARE INVOLVED, IT IS WELL AT THE OUTSET TO ELABORATE UPON
THE STATEMENT OF THE KENTUCKY COURT THAT THIS IS AN ACTION TO ENFORCE A
COLLECTIVE BARGAINING CONTRACT, AN ACCURATE OBSERVATION AS FAR AS WE
ARE CONCERNED. 

FIRST, MOORE CHALLENGES THE POWER OF THE PARTIES AND OF THE JOINT
CONFERENCE COMMITTEE TO DOVETAIL SENIORITY LISTS OF THE TWO COMPANIES
BECAUSE THERE WAS NO ABSORPTION HERE WITHIN THE MEANING OF SEC. 5 OF
ART. 4 AND BECAUSE, AS THE COURT BELOW HELD, THAT SECTION GRANTED NO
AUTHORITY TO DEAL WITH JOBS AS WELL AS SENIORITY.  HIS POSITION IS THAT
NEITHER THE PARTIES NOR THE COMMITTEE HAS ANY POWER BEYOND THAT
DELEGATED TO THEM BY THE PRECISE TERMS OF SEC. 5.  SINCE IN HIS VIEW
THE JOINT COMMITTEE EXCEEDED ITS POWER IN MAKING THE DECISION IT DID,
THE SETTLEMENT IS SAID TO BE A NULLITY AND HIS IMPENDING DISCHARGE A
BREACH OF CONTRACT. 

SECOND, MOORE CLAIMS THE DECISION OF THE COMMITTEE WAS OBTAINED BY
DISHONEST UNION CONDUCT IN BREACH OF ITS DUTY OF FAIR REPRESENTATION
AND THAT A DECISION SO OBTAINED CANNOT BE RELIED UPON AS A VALID EXCUSE
FOR HIS DISCHARGE UNDER THE CONTRACT.  THE UNDOUBTED BROAD AUTHORITY OF
THE UNION AS EXCLUSIVE BARGAINING AGENT IN THE NEGOTIATION AND
ADMINISTRATION OF A COLLECTIVE BARGAINING CONTRACT IS ACCOMPANIED BY A
RESPONSIBILITY OF EQUAL SCOPE, THE RESPONSIBILITY AND DUTY OF FAIR
REPRESENTATION.  SYRES V. OIL WORKERS UNION, 350 U.S. 892, REVERSING
223 F.2D 739; BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768;
TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 323 U.S.
210; STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192.  "BY ITS SELECTION
AS BARGAINING REPRESENTATIVE, IT HAS BECOME THE AGENT OF ALL THE
EMPLOYEES, CHARGED WITH THE RESPONSIBILITY OF REPRESENTING THEIR
INTERESTS FAIRLY AND IMPARTIALLY."  WALLACE CORP. V. LABOR BOARD, 323
U.S. 248, 255.  THE EXCLUSIVE AGENT'S OBLIGATION "TO REPRESENT ALL
MEMBERS OF AN APPROPRIATE UNIT REQUIRES IT TO MAKE AN HONEST EFFORT TO
SERVE THE INTERESTS OF ALL OF THOSE MEMBERS, WITHOUT HOSTILITY TO ANY
...  " AND ITS POWERS ARE "SUBJECT ALWAYS TO COMPLETE GOOD FAITH AND
HONESTY OF PURPOSE IN THE EXERCISE OF ITS DISCRETION."  FORD MOTOR CO.
V. HUFFMAN, 345 U.S. 330, 337-338. 

IN THE COMPLAINT WHICH MOORE FILED HERE, THE UNION IS SAID TO HAVE
DECEIVED THE DEALERS EMPLOYEES CONCERNING THEIR JOB AND SENIORITY
RIGHTS, DECEITFULLY CONNIVED WITH THE E&L DRIVERS AND WITH THE
INTERNATIONAL UNION TO DEPRIVE MOORE AND OTHERS OF THEIR EMPLOYMENT
RIGHTS AND PREVENTED THE LATTER FROM HAVING A FAIR HEARING BEFORE THE
JOINT COMMITTEE BY ESPOUSING THE CAUSE OF THE RIVAL GROUP OF DRIVERS
AFTER HAVING INDICATED THAT THE INTERESTS OF THE MEN AT DEALERS WOULD
BE PROTECTED BY THE UNION.  THESE ALLEGATIONS ARE SUFFICIENT TO CHARGE
A BREACH OF DUTY BY THE UNION IN THE PROCESS OF SETTLING THE GRIEVANCES
AT ISSUE UNDER THE COLLECTIVE BARGAINING AGREEMENT. 

BOTH THE LOCAL AND INTERNATIONAL UNIONS ARE CHARGED WITH DISHONESTY,
AND ONE-HALF OF THE VOTES ON THE JOINT COMMITTEE WERE CAST BY
REPRESENTATIVES OF UNIONS AFFILIATED WITH THE INTERNATIONAL.  NO FRAUD
IS CHARGED AGAINST THE EMPLOYER; BUT EXCEPT FOR THE IMPROPER ACTION OF
THE UNION, WHICH IS SAID TO HAVE DOMINATED AND BROUGHT ABOUT THE
DECISION, IT IS ALLEGED THAT DEALERS WOULD HAVE AGREED TO RETAIN ITS
OWN EMPLOYEES.  THE FAIR INFERENCE FROM THE COMPLAINT IS THAT THE
EMPLOYER CONSIDERED THE DISPUTE A MATTER FOR THE UNION TO DECIDE. 
MOREOVER, THE AWARD HAD NOT BEEN IMPLEMENTED AT THE TIME OF THE FILING
OF THE COMPLAINT, WHICH PUT DEALERS ON NOTICE THAT THE UNION WAS
CHARGED WITH DISHONESTY AND A BREACH OF DUTY IN PROCURING THE DECISION
OF THE JOINT COMMITTEE.  IN THESE CIRCUMSTANCES, THE ALLEGATIONS OF THE
COMPLAINT, IF PROVED, WOULD EFFECTIVELY UNDERMINE THE DECISION OF THE
JOINT COMMITTEE AS A VALID BASIS FOR MOORE'S DISCHARGE.  (FN3)    FOR
THESE REASONS THIS ACTION IS ONE ARISING UNDER SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT (FN4) AND IS A CASE CONTROLLED BY FEDERAL LAW,
TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, EVEN THOUGH
BROUGHT IN THE STATE COURT.  LOCAL 174, TEAMSTERS V. LUCAS FLOUR CO.,
369 U.S. 95; SMITH V. EVENING NEWS ASSN., 371 U.S. 195.  ALTHOUGH THERE
ARE DIFFERING VIEWS ON WHETHER A VIOLATION OF THE DUTY OF FAIR
REPRESENTATION IS AN UNFAIR LABOR PRACTICE UNDER THE LABOR MANAGEMENT
RELATIONS ACT, (FN5) IT IS NOT NECESSARY FOR US TO RESOLVE THAT
DIFFERENCE HERE.  EVEN IF IT IS, OR ARGUABLY MAY BE, AN UNFAIR LABOR
PRACTICE, THE COMPLAINT HERE ALLEGED THAT MOORE'S DISCHARGE WOULD
VIOLATE THE CONTRACT AND WAS THEREFORE WITHIN THE COGNIZANCE OF FEDERAL
AND STATE COURTS, SMITH V. EVENING NEWS ASSN., SUPRA, SUBJECT, OF
COURSE, TO THE APPLICABLE FEDERAL LAW.  (FN6) 

WE NOW COME TO THE MERITS OF THIS CASE. 

        II. 

IF WE ASSUME WITH MOORE AND THE COURTS BELOW THAT THE JOINT
CONFERENCE COMMITTEE'S POWER WAS CIRCUMSCRIBED BY SEC. 5 (FN7) AND THAT
ITS INTERPRETATION OF THE SECTION IS OPEN TO COURT REVIEW, MOORE'S
CAUSE IS NOT MEASURABLY ADVANCED.  FOR IN OUR OPINION THE SECTION
REASONABLY MEANT WHAT THE JOINT COMMITTEE SAID OR ASSUMED IT MEANT. 
THERE WAS AN ABSORPTION HERE WITHIN THE MEANING OF THE SECTION AND THAT

PRIOR TO THIS TRANSACTION BOTH E&L AND DEALERS WERE TRANSPORTING NEW
CARS OUT OF LOUISVILLE FOR THE FORD MOTOR COMPANY.  AFTERWARDS, ONLY
ONE COMPANY ENJOYED THIS BUSINESS, AND CLEARLY THIS WAS NO UNILATERAL
WITHDRAWAL BY E&L.  THERE WAS AN AGREEMENT BETWEEN THE COMPANIES,
PRECEDED BY LONG NEGOTIATION.  E & L'S AUTHORITY TO ENGAGE IN THE
TRANSPORTATION OF NEW CARS OUT OF LOUISVILLE WAS SOLD TO DEALERS.  THE
BUSINESS WHICH E&L HAD DONE IN THAT CITY WAS HENCEFORTH TO BE DONE BY
DEALERS.   WHILE THERE WAS NO SALE OF TANGIBLE ASSETS AT THAT LOCATION,
THE JOINT CONFERENCE COMMITTEE REASONABLY CONCLUDED THAT THERE WAS AN
ABSORPTION BY DEALERS OF THE E&L BUSINESS WITHIN THE MEANING OF SEC. 5
OF THE CONTRACT. 

IT WAS ALSO PERMISSIBLE TO CONCLUDE THAT SEC. 5 DEALT WITH EMPLOYMENT
AS WELL AS SENIORITY.  MERGERS, SALES OF ASSETS AND ABSORPTIONS ARE
COMMONPLACE EVENTS.  IT IS NOT UNUSUAL FOR COLLECTIVE BARGAINING
AGREEMENTS TO DEAL WITH THEM, ESPECIALLY IN THE TRANSPORTATION INDUSTRY
WHERE THE SAME UNIONS MAY REPRESENT THE EMPLOYEES OF BOTH PARTIES TO
THE TRANSACTION.  (FN9)  FOLLOWING ANY OF SUCH EVENTS, THE BUSINESS OF
THE ONE COMPANY WILL PROBABLY INCLUDE THE FORMER BUSINESS OF THE OTHER;
AND THE RECURRING QUESTION IS WHETHER IT IS THE EMPLOYEES OF THE
ABSORBED COMPANY OR THOSE OF THE ACQUIRING COMPANY WHO ARE TO HAVE
FIRST CALL UPON THE AVAILABLE WORK AT THE LATTER CONCERN.  JOBS, AS
WELL AS SENIORITY, ARE AT STAKE; AND IT WAS TO SOLVE JUST SUCH PROBLEMS
THAT SEC. 5 WAS DESIGNED.   ITS INTERPRETATION SHOULD BE COMMENSURATE
WITH ITS PURPOSES. 

SENIORITY HAS BECOME OF OVERRIDING IMPORTANCE, AND ONE OF ITS MAJOR
FUNCTIONS IS TO DETERMINE WHO GETS OR WHO KEEPS AN AVAILABLE JOB.  HERE
SEC. 5 PROVIDED FOR RESOLVING THE SENIORITY OF NOT ONLY THOSE EMPLOYEES
WHO ARE "ABSORBED," BUT ALL WHO WERE "AFFECTED" BY THE ABSORPTION. 
CERTAINLY THE TRANSACTION "AFFECTED" THE E&L EMPLOYEES; AND THE
SENIORITY OF THESE DRIVERS, WHICH THE PARTIES OR THE JOINT CONFERENCE
COMMITTEE COULD DETERMINE, WAS CLEARLY SENIORITY AT DEALERS, THE
COMPANY WHICH HAD ABSORBED THE E&L BUSINESS.  THE PARTIES VERY
PROBABLY, THEREFORE, INTENDED THE SENIORITY GRANTED AN E&L EMPLOYEE AT
DEALERS TO CARRY THE JOB WITH IT, JUST AS SENIORITY USUALLY WOULD.  IF
IT DID NOT AND IF DEALERS UNILATERALLY COULD DETERMINE WHETHER TO HIRE
ANY E&L EMPLOYEE, IT MIGHT DECIDE TO HIRE NONE, EXCLUDING E&L EMPLOYEES
FROM ANY OF THE WORK WHICH THEY HAD FORMERLY DONE.  OR IF IT DID HIRE
E&L EMPLOYEES TO FILL ANY ADDITIONAL JOBS RESULTING FROM THE ABSORPTION
OF THE E&L BUSINESS, IT MIGHT SELECT E&L EMPLOYEES FOR JOBS WITHOUT
REGARD TO LENGTH OF SERVICE AT E&L OR IT MIGHT INSIST ON AN AGREEMENT
FROM THE UNION TO GRANT ONLY SUCH SENIORITY AS MIGHT SUIT THE COMPANY. 

THE POWER OF THE JOINT CONFERENCE COMMITTEE OVER SENIORITY GAVE IT
POWER OVER JOBS.  IT WAS ENTITLED UNDER SEC. 5 TO INTEGRATE THE
SENIORITY LISTS UPON SOME RATIONAL BASIS, AND ITS DECISION TO INTEGRATE
LISTS UPON THE BASIS OF LENGTH OF SERVICE AT EITHER COMPANY WAS NEITHER
UNIQUE NOR ARBITRARY.  ON THE CONTRARY, IT IS A FAMILIAR AND FREQUENTLY
EQUITABLE SOLUTION TO THE INEVITABLY CONFLICTING INTERESTS WHICH ARISE
IN THE WAKE OF A MERGER OR AN ABSORPTION SUCH AS OCCURRED HERE.  (FN10)
THE JOINT CONFERENCE COMMITTEE'S DECISION TO DOVETAIL SENIORITY LISTS
WAS A DECISION WHICH SEC. 5 EMPOWERED THE COMMITTEE TO MAKE. 

NEITHER DO WE FIND ADEQUATE SUPPORT IN THIS RECORD FOR THE
COMPLAINT'S ATTACK UPON THE INTEGRITY OF THE UNION AND OF THE
PROCEDURES WHICH LED TO THE DECISION.  ALTHOUGH THE UNION AT FIRST
ADVISED THE DEALERS DRIVERS THAT THEY HAD NOTHING TO WORRY ABOUT BUT
LATER SUPPORTED THE E&L EMPLOYEES BEFORE THE JOINT CONFERENCE
COMMITTEE, THERE IS NO SUBSTANTIAL EVIDENCE OF FRAUD, DECEITFUL ACTION
OR DISHONEST CONDUCT.  PRIDDY'S EARLY ASSURANCES TO DEALERS EMPLOYEES
WERE NOT WELL FOUNDED, IT IS TRUE; BUT PRIDDY WAS ACTING UPON
INFORMATION THEN AVAILABLE TO HIM, INFORMATION RECEIVED FROM THE
COMPANY WHICH LED HIM TO THINK THERE WAS NO TRADE OR EXCHANGE INVOLVED,
NO "ABSORPTION" WHICH MIGHT BRING SEC. 5 INTO PLAY.  OTHER SECTIONS OF
THE CONTRACT, HE THOUGHT, WOULD PROTECT THE JOBS OF MOORE AND HIS
FELLOW DRIVERS.  (FN11)  CONSISTENT WITH THIS VIEW, HE ALSO ADVISED E&L
EMPLOYEES THAT THE SITUATION APPEARED UNFAVORABLE FOR THEM.  HOWEVER,
WHEN HE LEARNED OF THE PENDING ACQUISITION BY DEALERS OF E&L OPERATING
AUTHORITY IN LOUISVILLE AND OF THE INVOLVEMENT OF OTHER LOCATIONS IN
THE TRANSACTION, HE CONSIDERED THE MATTER TO BE ONE FOR THE JOINT
COMMITTEE.  ULTIMATELY HE TOOK THE VIEW THAT AN ABSORPTION WAS
INVOLVED, THAT SEC. 5 DID APPLY AND THAT DOVETAILING SENIORITY LISTS
WAS THE MOST EQUITABLE SOLUTION FOR ALL CONCERNED.  WE FIND IN THIS
EVIDENCE INSUFFICIENT PROOF OF DISHONESTY OR INTENTIONAL MISLEADING ON
THE PART OF THE UNION.  AND WE DO NOT UNDERSTAND THE COURT BELOW TO
HAVE FOUND OTHERWISE. 

THE KENTUCKY COURT, HOWEVER, MADE MUCH OF THE ANTAGONISTIC INTERESTS
OF THE E&L AND DEALERS DRIVERS, BOTH GROUPS BEING REPRESENTED BY THE
SAME UNION, WHOSE PRESIDENT SUPPORTED ONE GROUP AND OPPOSED THE OTHER
AT THE HEARING BEFORE THE JOINT CONFERENCE COMMITTEE.  BUT WE ARE NOT
READY TO FIND A BREACH OF THE COLLECTIVE BARGAINING AGENT'S DUTY OF
FAIR REPRESENTATION IN TAKING A GOOD FAITH POSITION CONTRARY TO THAT OF
SOME INDIVIDUALS WHOM IT REPRESENTS NOR IN SUPPORTING THE POSITION OF
ONE GROUP OF EMPLOYEES AGAINST THAT OF ANOTHER.  IN FORD MOTOR CO. V.
HUFFMAN, 345 U.S. 330, THE COURT FOUND NO BREACH OF DUTY BY THE UNION
IN AGREEING TO AN AMENDMENT OF AN EXISTING COLLECTIVE BARGAINING
CONTRACT, GRANTING ENHANCED SENIORITY TO A PARTICULAR GROUP OF
EMPLOYEES AND RESULTING IN LAYOFFS WHICH OTHERWISE WOULD NOT HAVE
OCCURRED.  "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."  ID., AT 338.  JUST AS A
UNION MUST BE FREE TO SIFT OUT WHOLLY FRIVOLOUS GRIEVANCES WHICH WOULD
ONLY CLOG THE GRIEVANCE PROCESS, SO IT MUST BE FREE TO TAKE A POSITION
ON THE NOT SO FRIVOLOUS DISPUTES.  NOR SHOULD IT BE NEUTRALIZED WHEN
THE ISSUE IS CHIEFLY BETWEEN TWO SETS OF EMPLOYEES.  CONFLICT BETWEEN
EMPLOYEES REPRESENTED BY THE SAME UNION IS A RECURRING FACT.  TO REMOVE
OR GAG THE UNION IN THESE CASES WOULD SURELY WEAKEN THE COLLECTIVE
BARGAINING AND GRIEVANCE PROCESSES. 

AS FAR AS THIS RECORD SHOWS, THE UNION TOOK ITS POSITION HONESTLY, IN
GOOD FAITH AND WITHOUT HOSTILITY OR ARBITRARY DISCRIMINATION.  AFTER
DEALERS ABSORBED THE LOUISVILLE BUSINESS OF E&L, THERE WERE FEWER JOBS
AT DEALERS THAN THERE WERE DEALERS AND E&L DRIVERS.  ONE GROUP OR THE
OTHER WAS GOING TO SUFFER.  IF ANY E&L DRIVERS WERE TO BE HIRED AT
DEALERS EITHER THEY OR THE DEALERS DRIVERS WOULD NOT HAVE THE SENIORITY
WHICH THEY HAD PREVIOUSLY ENJOYED.  INEVITABLY THE ABSORPTION WOULD
HURT SOMEONE.  BY CHOOSING TO INTEGRATE SENIORITY LISTS BASED UPON
LENGTH OF SERVICE AT EITHER COMPANY, THE UNION ACTED UPON WHOLLY
RELEVANT CONSIDERATIONS, NOT UPON CAPRICIOUS OR ARBITRARY FACTORS.  THE
EVIDENCE SHOWS NO BREACH BY THE UNION OF ITS DUTY OF FAIR
REPRESENTATION. 

THERE IS A REMAINING CONTENTION.  EVEN THOUGH THE UNION ACTED IN GOOD
FAITH AND WAS ENTITLED TO TAKE THE POSITION IT DID, WERE THE DEALERS
EMPLOYEES, IF THE UNION WAS GOING TO OPPOSE THEM, DEPRIVED OF A FAIR
HEARING BY HAVING INADEQUATE REPRESENTATION AT THE HEARING?  DEALERS
EMPLOYEES HAD NOTICE OF THE HEARING, THEY WERE OBVIOUSLY AWARE THAT
THEY WERE LOCKED IN A STRUGGLE FOR JOBS AND SENIORITY WITH THE E&L
DRIVERS, AND THREE STEWARDS REPRESENTING THEM WENT TO THE HEARING AT
UNION EXPENSE AND WERE GIVEN EVERY OPPORTUNITY TO STATE THEIR
POSITION.  THUS THE ISSUE IS IN REALITY A NARROW ONE.  THERE WAS NO
SUBSTANTIAL DISPUTE ABOUT THE FACTS CONCERNING THE NATURE OF THE
TRANSACTION BETWEEN THE TWO COMPANIES.  IT WAS FOR THE JOINT CONFERENCE
COMMITTEE INITIALLY TO DECIDE WHETHER THERE WAS AN "ABSORPTION" WITHIN
THE MEANING OF SEC. 5 AND, IF SO, WHETHER SENIORITY LISTS WERE TO BE
INTEGRATED AND THE OLDER EMPLOYEES OF E&L GIVEN JOBS AT DEALERS.  THE
DEALERS EMPLOYEES MADE NO REQUEST TO CONTINUE THE HEARING UNTIL THEY
COULD SECURE FURTHER REPRESENTATION AND HAVE NOT YET SUGGESTED WHAT
THEY COULD HAVE ADDED TO THE HEARING BY WAY OF FACTS OR THEORY IF THEY
HAD BEEN DIFFERENTLY REPRESENTED.  THE TRIAL COURT FOUND IT "IDLE
SPECULATION TO ASSUME THAT THE RESULT WOULD HAVE BEEN DIFFERENT HAD THE
MATTER BEEN DIFFERENTLY PRESENTED."  WE AGREE. 

MOORE HAS NOT, THEREFORE, PROVED HIS CASE.  NEITHER THE PARTIES NOR
THE JOINT COMMITTEE EXCEEDED THEIR POWER UNDER THE CONTRACT AND THERE
WAS NO FRAUD OR BREACH OF DUTY BY THE EXCLUSIVE BARGAINING AGENT.  THE
DECISION OF THE COMMITTEE, REACHED AFTER PROCEEDINGS ADEQUATE UNDER THE
AGREEMENT, IS FINAL AND BINDING UPON THE PARTIES, JUST AS THE CONTRACT
SAYS IT IS.  DRIVERS UNION V. RISS & CO., 372 U.S. 517. 

THE DECISION BELOW IS REVERSED AND THE CASES ARE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE INTERNATIONAL UNION WAS ALSO NAMED AS A PARTY BUT SERVICE
WAS QUASHED AND THE ACTION DISMISSED AS AGAINST IT. 

FN2  THE DENIAL OF A TEMPORARY INJUNCTION BY THE TRIAL COURT WAS SET
ASIDE AND TEMPORARY INJUNCTION ORDERED BY THE COURT OF APPEALS. 
THEREAFTER THE TRIAL COURT DISMISSED THE COMPLAINT, BUT THE COURT OF
APPEALS REVERSED AND MADE THE TEMPORARY INJUNCTION PERMANENT. 

FN3  IN ITS BRIEF FILED HERE DEALERS DOES NOT SUPPORT THE DECISION OF
THE JOINT COMMITTEE.  IT SUGGESTS, RATHER, THAT THE MATTER BE FINALLY
SETTLED BY ARBITRATION UNDER THE TERMS OF THE CONTRACT. 

FN4  SECTION 301(A) OF THE L.M.R.A. IS AS FOLLOWS: 

"SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE
AS DEFINED IN THIS CHAPTER, OR BETWEEN ANY SUCH LABOR ORGANIZATIONS,
MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED STATES HAVING
JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE AMOUNT IN
CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE PARTIES."  29
U.S.C. SEC. 185(A). 

FN5  COMPARE, FOR EXAMPLE, LABOR BOARD V. LOCAL 294, INTERNATIONAL
BRO. OF TEAMSTERS, 317 F.2D 746 (C.A.2D CIR.), WITH MIRANDA FUEL CO.,
140 N.L.R.B. 181 (1962); ENFORCEMENT DENIED, LABOR BOARD V. MIRANDA
FUEL CO., 326 F.2D 172 (C.A.2D CIR.).  SEE ALSO COX, THE DUTY OF FAIR
REPRESENTATION, 2 VILLANOVA L. REV. 151, 172-175. 

FN6  THE UNION CONTENDED IN THE STATE COURTS THAT THE JURISDICTION OF
THE STATE COURTS HAD BEEN PREEMPTED BY THE FEDERAL STATUTES.  THE
KENTUCKY COURT OF APPEALS RULED OTHERWISE AND THE UNION APPEARS TO HAVE
ABANDONED THE VIEW HERE, SINCE IT SAYS, RELYING UPON FORD MOTOR CO. V.
HUFFMAN, 345 U.S. 330, THAT INDIVIDUAL EMPLOYEES "MAY UNDOUBTEDLY
MAINTAIN SUITS AGAINST THEIR REPRESENTATIVE WHEN THE LATTER HOSTILELY
DISCRIMINATES AGAINST THEM." 

WE NOTE THAT IN SYRES V. OIL WORKERS INTERNATIONAL UNION, 350 U.S.
892, INDIVIDUAL EMPLOYEES SUED THE EXCLUSIVE AGENT AND THE COMPANY TO
ENJOIN AND DECLARE VOID A COLLECTIVE BARGAINING AGREEMENT ALLEGED TO
VIOLATE THE DUTY OF FAIR REPRESENTATION.  DISMISSAL IN THE TRIAL COURT
WAS AFFIRMED IN THE COURT OF APPEALS.  THIS COURT REVERSED AND ORDERED
FURTHER PROCEEDINGS IN THE TRIAL COURT IN THE FACE OF CONTENTIONS MADE
BOTH IN THIS COURT AND THE LOWER COURTS THAT THE EMPLOYEES SHOULD HAVE
BROUGHT THEIR PROCEEDINGS BEFORE THE NATIONAL LABOR RELATIONS BOARD. 
CF. COSMARK V. STRUTHERS WELLS CORP., 54 L.R.R.M. 2333 (PA. OCT. 17,
1963).    THE E&L EMPLOYEES, PETITIONERS IN NO. 17, URGE THAT EVEN IF
THE FEDERAL COURTS MAY ENTERTAIN SUITS SUCH AS THIS, THE STATE COURTS
MAY NOT.  SINCE IN OUR VIEW THE COMPLAINT HERE CHARGED A BREACH OF
CONTRACT, WE FIND NO MERIT IN THIS POSITION.  IT IS CLEAR THAT SUITS
FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION
MAY BE BROUGHT IN EITHER STATE OR FEDERAL COURTS.  DOWD BOX CO. V.
COURTNEY, 368 U.S. 502. 

FN7  WE NEED NOT CONSIDER THE PROBLEM POSED IF SEC. 5 HAD BEEN
OMITTED FROM THE CONTRACT OR IF THE PARTIES HAD ACTED TO AMEND THE
PROVISION.  THE FACT IS THAT THEY PURPORTED TO PROCEED UNDER THE
SEC. 5 THAT THE MATTER WAS TAKEN TO THE JOINT CONFERENCE COMMITTEE
WHICH, UNDER ART. 7, WAS TO MAKE A DECISION "AFTER LISTENING TO
TESTIMONY ON BOTH SIDES."  THE COMMITTEE EXPRESSLY RECITED THAT ITS
DECISION WAS IN ACCORDANCE WITH SEC. 5 OF THE CONTRACT.  EVEN IN THE
ABSENCE OF SEC. 5, HOWEVER, IT WOULD BE NECESSARY TO DEAL WITH THE
ALLEGED BREACH OF THE UNION'S DUTY OF FAIR REPRESENTATION. 

FN8  WE ALSO PUT ASIDE THE UNION'S CONTENTION THAT ART. 7, SEC. (D) -
PROVIDING THAT ALL MATTERS OF INTERPRETATION OF THE AGREEMENT BE
SUBMITTED TO THE JOINT CONFERENCE COMMITTEE - MAKES IT INESCAPABLY
CLEAR THAT THE COMMITTEE HAD THE POWER TO DECIDE THAT THE TRANSFER OF
OPERATING AUTHORITY WAS AN ABSORPTION WITHIN THE SCOPE OF SEC. 5.  BUT
IT IS BY NO MEANS CLEAR THAT THIS PROVISION IN ART. 7 WAS INTENDED TO
APPLY TO INTERPRETATIONS OF SEC. 5, FOR THE LATTER SECTION BY ITS OWN
TERMS APPEARS TO LIMIT THE AUTHORITY OF THE COMMITTEE TO DISPUTES OVER
SENIORITY IN THE EVENT OF AN ABSORPTION.  RECONCILIATION OF THESE TWO
PROVISIONS, GOING TO THE POWER OF THE COMMITTEE UNDER THE CONTRACT,
ITSELF PRESENTED AN ISSUE ULTIMATELY FOR THE COURT, NOT THE COMMITTEE,
TO DECIDE.  OUR VIEW OF THE SCOPE AND APPLICABILITY OF SEC. 5, INFRA,
RENDERS AN ACCOMMODATION OF THESE TWO SECTIONS UNNECESSARY. 

FN9  SEE CASES CITED IN FOOTNOTE 10, INFRA. 

FN10  SEE FOR EXAMPLE, KENT V. CIVIL AERONAUTICS BOARD, 204 F.2D 263
(C.A.2D CIR. 1953); KELLER V. TEAMSTERS LOCAL 249, 43 CCH LABOR CASES
PAR. 17,119 (D.C.W.D. PA. 1961); PRATT V. WILSON TRUCKING CO., 214 GA.
385, 104 S.E.2D 915 (1958); WALKER V. PENNSYLVANIA-READING SEASHORE
LINES, 142 N.J. EQ. 588, 61 A.2D 453 (1948); IN RE WESTERN UNION
TELEGRAPH CO. AND AMERICAN COMMUNICATIONS ASSOCIATION (DECISIONS OF WAR
LABOR BOARD 1944) 14 L.R.R.M. 1623.  CF. COLBERT V. BROTHERHOOD OF
RAILROAD TRAINMEN, 206 F.2D 9 (C.A. 9TH CIR. 1953); LABOR BOARD V.
WHELAND CO., 271 F.2D 122 (C.A. 6TH CIR. 1959); HARDCASTLE V. WESTERN
GREYHOUND LINES, 303 F2D 182 (C.A. 9TH CIR. 1962); FAGAN V.
PENNSYLVANIA R. CO., 173 F. SUPP. 465 (D.C.M.D. PA. 1959). 
"INTEGRATION OF SENIORITY LISTS SHOULD ORDINARILY BE ACCOMPLISHED ON
THE BASIS OF EACH EMPLOYEE'S LENGTH OF SERVICE WITH HIS ORIGINAL
EMPLOYER  ...  ."  KAHN, SENIORITY PROBLEMS IN BUSINESS MERGERS, 8
INDUSTRIAL AND LABOR RELATIONS REVIEW 361, 378. 

FN11  THE DEALERS EMPLOYEES RELY UPON A RIDER TO THE DEALERS CONTRACT
PROTECTING THE SENIORITY OF THE EMPLOYEES AT A TERMINAL WHEN ANOTHER
TERMINAL OF THAT COMPANY IS CLOSED DOWN.  THE COURT BELOW DID NOT
BELIEVE THE RIDER DISPOSITIVE, AND WE AGREE. 

MR. JUSTICE DOUGLAS. 

I AGREE FOR THE REASONS STATED BY MY BROTHER GOLDBERG THAT THIS
LITIGATION WAS PROPERLY BROUGHT IN THE STATE COURT BUT ON THE MERITS I
BELIEVE THAT NO CAUSE OF ACTION HAS BEEN MADE OUT FOR THE REASONS
STATED BY THE COURT. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE BRENNAN JOINS, CONCURRING
IN THE RESULT. 

I CONCUR IN THE JUDGMENT AND IN THE HOLDING OF THE COURT THAT SINCE
"MOORE HAS NOT  ...  PROVED HIS CASE  ... ," THE DECISION BELOW MUST BE
REVERSED.  SUPRA.  I DO NOT, HOWEVER, AGREE THAT MOORE STATED A CAUSE
OF ACTION ARISING UNDER SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS
ACT, 61 STAT. 156, 29 U.S.C. SEC. 185(A).  IT IS MY VIEW RATHER THAT
MOORE'S CLAIM MUST BE TREATED AS AN INDIVIDUAL EMPLOYEE'S ACTION FOR A
UNION'S BREACH OF ITS DUTY OF FAIR REPRESENTATION - A DUTY DERIVED NOT
FROM THE COLLECTIVE BARGAINING CONTRACT BUT FROM THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, 61 STAT. 136, 29 U.S.C. SEC. 141 ET SEQ. SEE
SYRES V. OIL WORKERS INT'L UNION, 350 U.S. 892, REVERSING 223 F.2D 739;
BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768; TUNSTALL V.
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 323 U.S. 210; STEELE V.
LOUISVILLE & N.R. CO., 323 U.S. 192.  CF. INTERNATIONAL ASSOCIATION OF
MACHINISTS V. CENTRAL AIRLINES, INC., 372 U.S. 682. 

THE COMPLAINT DOES NOT EXPRESSLY REFER EITHER TO SEC. 301(A) OF THE
LABOR MANAGEMENT RELATIONS ACT OR TO THE NATIONAL LABOR RELATIONS ACT
AS THE SOURCE OF THE ACTION.  SINCE SUBSTANCE AND NOT FORM MUST GOVERN,
HOWEVER, WE LOOK TO THE ALLEGATIONS OF THE COMPLAINT AND TO THE FEDERAL
LABOR STATUTES TO DETERMINE THE NATURE OF THE CLAIM. 

THE OPINION OF THE COURT CORRECTLY DESCRIBES MOORE'S COMPLAINT AS
ALLEGING THAT THE DECISION OF THE JOINT CONFERENCE COMMITTEE
DOVETAILING THE SENIORITY LISTS OF THE TWO COMPANIES VIOLATED MOORE'S
RIGHTS BECAUSE:  (1) THE JOINT COMMITTEE EXCEEDED ITS POWERS UNDER THE
EXISTING COLLECTIVE BARGAINING CONTRACT IN MAKING ITS DECISION
DOVETAILING SENIORITY LISTS, AND (2) THE DECISION OF THE COMMITTEE WAS
BROUGHT ABOUT BY DISHONEST UNION CONDUCT IN BREACH OF ITS DUTY OF FAIR
REPRESENTATION. 

NEITHER GROUND, IT SEEMS TO ME, SUSTAINS AN ACTION UNDER SEC. 301(A)
OF THE L.M.R.A.  A MUTUALLY ACCEPTABLE GRIEVANCE SETTLEMENT BETWEEN AN
EMPLOYER AND A UNION, WHICH IS WHAT THE DECISION OF THE JOINT COMMITTEE
WAS, CANNOT BE CHALLENGED BY AN INDIVIDUAL DISSENTING EMPLOYEE UNDER
SEC. 301(A) ON THE GROUND THAT THE PARTIES EXCEEDED THEIR CONTRACTUAL
POWERS IN MAKING THE SETTLEMENT.  IT IS TRUE THAT THIS COURT, IN A
SERIES OF DECISIONS DEALING WITH LABOR ARBITRATIONS, HAS RECOGNIZED
THAT THE POWERS OF AN ARBITRATOR ARISE FROM AND ARE DEFINED BY THE
COLLECTIVE BARGAINING AGREEMENT.  (FN1) "FOR ARBITRATION," AS THE COURT
SAID IN UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF NAVIGATION
CO., 363 U.S. 574, 582, "IS A MATTER OF CONTRACT AND A PARTY CANNOT BE
REQUIRED TO SUBMIT TO ARBITRATION ANY DISPUTE WHICH HE HAS NOT AGREED
SO TO SUBMIT."  THUS THE EXISTING LABOR CONTRACT IS THE TOUCHSTONE OF
AN ARBITRATOR'S POWERS.  BUT THE POWER OF THE UNION AND THE EMPLOYER
JOINTLY TO SETTLE A GRIEVANCE DISPUTE IS NOT SO LIMITED.  THE PARTIES
ARE FREE BY JOINT ACTION TO MODIFY, AMEND, AND SUPPLEMENT THEIR
ORIGINAL COLLECTIVE BARGAINING AGREEMENT.  THEY ARE EQUALLY FREE, SINCE
"THE GRIEVANCE PROCEDURE IS  ...  A PART OF THE CONTINUOUS COLLECTIVE
BARGAINING PROCESS," TO SETTLE GRIEVANCES NOT FALLING WITHIN THE SCOPE
OF THE CONTRACT.  ID., AT 581.  IN THIS CASE, FOR EXAMPLE, HAD THE
DISPUTE GONE TO ARBITRATION, THE ARBITRATOR WOULD HAVE BEEN BOUND TO
APPLY THE EXISTING AGREEMENT AND TO DETERMINE WHETHER THE MERGER
ABSORPTION CLAUSE APPLIED.  HOWEVER, EVEN IN THE ABSENCE OF SUCH A
CLAUSE, THE CONTRACTING PARTIES - THE MULTIEMPLOYER UNIT (FN2) AND THE
UNION - WERE FREE TO RESOLVE THE DISPUTE BY AMENDING THE CONTRACT TO
DOVETAIL SENIORITY LISTS OR TO ACHIEVE THE SAME RESULT BY ENTERING INTO
A GRIEVANCE SETTLEMENT.  THE PRESENCE OF THE MERGER-ABSORPTION CLAUSE
DID NOT RESTRICT THE RIGHT OF THE PARTIES TO RESOLVE THEIR DISPUTE BY
JOINT AGREEMENT APPLYING, INTERPRETING, OR AMENDING THE CONTRACT. 
(FN3)  THERE ARE TOO MANY UNFORESEEABLE CONTINGENCIES IN A COLLECTIVE
BARGAINING RELATIONSHIP TO JUSTIFY MAKING THE WORDS OF THE CONTRACT THE
EXCLUSIVE SOURCE OF RIGHTS AND DUTIES. 

THESE PRINCIPLES WERE APPLIED IN FORD MOTOR CO. V. HUFFMAN, 345 U.S.
330.  THERE THE UNION AND THE EMPLOYER DURING A COLLECTIVE BARGAINING
AGREEMENT ENTERED INTO A "SUPPLEMENTARY AGREEMENT" PROVIDING SENIORITY
CREDIT FOR THE PRE-EMPLOYMENT MILITARY SERVICE OF VETERANS, A TYPE OF
SENIORITY CREDIT NOT GRANTED IN THE ORIGINAL AGREEMENT.  ID., AT 334,
N. 6.  HUFFMAN, ON BEHALF OF HIMSELF AND OTHER UNION MEMBERS WHOSE
SENIORITY WAS ADVERSELY AFFECTED, BROUGHT SUIT TO HAVE THE
SUPPLEMENTARY PROVISIONS DECLARED INVALID AND TO OBTAIN APPROPRIATE
INJUNCTIVE RELIEF AGAINST THE EMPLOYER AND THE UNION.  THERE WAS NO
DOUBT THAT HUFFMAN AND MEMBERS OF HIS CLASS WERE INJURED AS A RESULT OF
THE "SUPPLEMENTARY AGREEMENT"; THEY WERE SUBJECTED TO LAYOFFS THAT
WOULD NOT HAVE AFFECTED THEM IF THE SENIORITY RANKINGS HAD NOT BEEN
ALTERED.  DESPITE THE CHANGE IN RIGHTS UNDER THE PRIOR AGREEMENT, THIS
COURT HELD THAT THE EXISTING LABOR AGREEMENT DID NOT LIMIT THE POWER OF
THE PARTIES JOINTLY, IN THE PROCESS OF BARGAINING COLLECTIVELY, TO MADE
NEW AND DIFFERENT CONTRACTUAL ARRANGEMENTS AFFECTING SENIORITY RIGHTS. 

IT NECESSARILY FOLLOWS FROM HUFFMAN THAT A SETTLEMENT OF A SENIORITY
DISPUTE, DEEMED BY THE PARTIES TO BE AN INTERPRETATION OF THEIR
AGREEMENT, NOT REQUIRING AN AMENDMENT, IS PLAINLY WITHIN THEIR JOINT
AUTHORITY.  JUST AS UNDER THE HUFFMAN DECISION AN AMENDMENT IS NOT TO
BE TESTED BY WHETHER IT IS WITHIN THE EXISTING CONTRACT, SO A GRIEVANCE
SETTLEMENT SHOULD NOT BE TESTED BY WHETHER A COURT COULD AGREE WITH THE
PARTIES' INTERPRETATION.  IF COLLECTIVE BARGAINING IS TO REMAIN A
FLEXIBLE PROCESS, THE POWER TO AMEND BY AGREEMENT AND THE POWER TO
INTERPRET BY AGREEMENT MUST BE COEQUAL. 

IT IS WHOLLY INCONSISTENT WITH THIS COURT'S RECOGNITION THAT "THE
GRIEVANCE PROCEDURE IS  ...  A PART OF THE CONTINUOUS COLLECTIVE
BARGAINING PROCESS,"  UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF
NAVIGATION CO., 363 U.S., AT 581, TO LIMIT THE PARTIES' POWER TO SETTLE
GRIEVANCES TO THE CONFINES OF THE EXISTING LABOR AGREEMENT, OR TO
ASSERT, AS THE COURT NOW DOES, THAT AN INDIVIDUAL EMPLOYEE CAN CLAIM
THAT THE COLLECTIVE BARGAINING CONTRACT IS VIOLATED BECAUSE THE PARTIES
HAVE MADE A GRIEVANCE SETTLEMENT GOING BEYOND THE STRICT TERMS OF THE
EXISTING CONTRACT. 

I TURN NOW TO THE SECOND BASIS OF THE COMPLAINT, VIZ., THAT THE
DECISION OF THE JOINT CONFERENCE COMMITTEE WAS BROUGHT ABOUT BY
DISHONEST UNION CONDUCT IN BREACH OF ITS DUTY OF FAIR REPRESENTATION. 
IN MY VIEW, SUCH A CLAIM OF BREACH OF THE UNION'S DUTY OF FAIR
REPRESENTATION CANNOT PROPERLY BE TREATED AS A CLAIM OF BREACH OF THE
COLLECTIVE BARGAINING CONTRACT SUPPORTING AN ACTION UNDER SEC. 301(A). 
THIS IS PARTICULARLY APPARENT WHERE, AS HERE, "NO FRAUD IS CHARGED
AGAINST THE EMPLOYER ...  ."  ANTE, AT 343. 

THIS DOES NOT MEAN THAT AN INDIVIDUAL EMPLOYEE IS WITHOUT A REMEDY
FOR A UNION'S BREACH OF ITS DUTY OF FAIR REPRESENTATION.  I READ THE
DECISIONS OF THIS COURT TO HOLD THAT AN INDIVIDUAL EMPLOYEE HAS A RIGHT
TO A REMEDY AGAINST A UNION BREACHING ITS DUTY OF FAIR REPRESENTATION -
A DUTY DERIVED NOT FROM THE COLLECTIVE BARGAINING CONTRACT BUT IMPLIED
FROM THE UNION'S RIGHTS AND RESPONSIBILITIES CONFERRED BY FEDERAL LABOR
STATUTES.  SEE SYRES V. OIL WORKERS INT'L UNION, SUPRA (NATIONAL LABOR
RELATIONS ACT); BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, SUPRA
(RAILWAY LABOR ACT); TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN, SUPRA (RAILWAY LABOR ACT); STEELE V. LOUISVILLE & N.R. CO.,
SUPRA (RAILWAY LABOR ACT).  CF. INTERNATIONAL ASSOCIATION OF MACHINISTS
V. CENTRAL AIRLINES, INC., SUPRA (RAILWAY LABOR ACT).  THERE IS NOTHING
TO THE CONTRARY IN SMITH V. EVENING NEWS ASSN., 371 U.S. 195.  IN THAT
CASE THE GRAVAMEN OF THE INDIVIDUAL EMPLOYEE'S SEC. 301(A) ACTION WAS
THE EMPLOYER'S DISCHARGE OF EMPLOYEES IN VIOLATION OF THE EXPRESS TERMS
OF THE COLLECTIVE BARGAINING AGREEMENT.  NO BREACH OF THE UNION'S DUTY
OF FAIR REPRESENTATION WAS CHARGED.  TO THE CONTRARY, THE UNION
SUPPORTED THE EMPLOYEE'S SUIT WHICH WAS BROUGHT AS AN INDIVIDUAL SUIT
OUT OF OBEISANCE TO WHAT THE UNION DEEMED TO BE THE REQUIREMENTS OF
ASSOCIATION OF WESTINGHOUSE SALARIED EMPLOYEES V. WESTINGHOUSE ELECTRIC
CORP., 348 U.S. 437. 

THE REMEDY IN A SUIT BASED UPON A BREACH OF THE UNION'S DUTY OF FAIR
REPRESENTATION MAY BE EXTENDED TO THE EMPLOYER UNDER APPROPRIATE
CIRCUMSTANCES.  THIS WAS RECOGNIZED IN STEELE V. LOUISVILLE & N.R. CO.,
SUPRA, WHERE THE COURT EXTENDED THE REMEDY AGAINST THE UNION TO INCLUDE
INJUNCTIVE RELIEF AGAINST A CONTRACT BETWEEN THE EMPLOYER AND THE
UNION.  THERE THE EMPLOYER WILLFULLY PARTICIPATED IN THE UNION'S BREACH
OF ITS DUTY OF FAIR REPRESENTATION AND THAT BREACH AROSE FROM
DISCRIMINATION BASED ON RACE, A CLASSIFICATION THAT WAS HELD
"IRRELEVANT" TO A UNION'S STATUTORY BARGAINING POWERS.  THE COURT
OBSERVED: 

"IT IS ENOUGH FOR PRESENT PURPOSES TO SAY THAT THE STATUTORY POWER TO
REPRESENT A CRAFT AND TO MAKE CONTRACTS AS TO WAGES, HOURS AND WORKING
CONDITIONS DOES NOT INCLUDE THE AUTHORITY TO MAKE AMONG MEMBERS OF THE
CRAFT DISCRIMINATIONS NOT BASED ON  ...  RELEVANT DIFFERENCES."  ID.,
AT 203. 

THE COURT DISTINGUISHED CLASSIFICATIONS AND DIFFERENCES WHICH ARE
"RELEVANT TO THE AUTHORIZED PURPOSES OF THE CONTRACT  ...  SUCH AS
DIFFERENCES IN SENIORITY, THE TYPE OF WORK PERFORMED, (AND) THE
COMPETENCE AND SKILL WITH WHICH IT IS PERFORMED,  ...  ."  IBID.  WHERE
THE ALLEGED BREACH OF A UNION'S DUTY INVOLVES A DIFFERENTIATION BASED
ON A RELEVANT CLASSIFICATION - IN THIS CASE SENIORITY RANKINGS
FOLLOWING AN AMALGAMATION OF EMPLOYER UNITS - AND WHERE THE EMPLOYER
HAS NOT WILLFULLY PARTICIPATED IN THE ALLEGED BREACH OF THE UNION'S
DUTY, THE COLLECTIVE BARGAINING AGREEMENT SHOULD NOT BE OPEN TO THE
COLLATERAL ATTACK OF AN INDIVIDUAL EMPLOYEE MERELY BECAUSE THE UNION
ALONE HAS FAILED IN ITS DUTY OF FAIR REPRESENTATION.  WE SHOULD NOT
AND, INDEED, WE NEED NOT STRAIN, THEREFORE, AS THE COURT DOES, TO
CONVERT A BREACH OF THE UNION'S DUTY TO INDIVIDUAL EMPLOYEES INTO A
BREACH OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE EMPLOYER AND
THE UNION.    I DO NOT AGREE WITH THE COURT THAT EMPLOYER WILLFULNESS
WAS CLAIMED IN THIS CASE BY "THE FAIR INFERENCE FROM THE COMPLAINT"
THAT DEALERS "CONSIDERED THE DISPUTE A MATTER FOR THE UNION TO
DECIDE."  ANTE, AT 343.  NOR CAN I AGREE THAT WILLFULNESS COULD BE
PREDICATED ON THE RATIONALE THAT SINCE "THE AWARD HAD NOT BEEN
IMPLEMENTED AT THE TIME OF THE FILING OF THE COMPLAINT,"  DEALERS WAS
"PUT  ...  ON NOTICE THAT THE UNION WAS CHARGED WITH DISHONESTY AND A
BREACH OF DUTY IN PROCURING THE DECISION OF THE JOINT COMMITTEE." 
IBID.  DEALERS MAY INDEED HAVE BEEN NEUTRAL WHEN THE CASE WAS PRESENTED
TO THE JOINT CONFERENCE COMMITTEE BUT THE COURT OVERLOOKS THAT THE
EMPLOYER-PARTY TO THE COLLECTIVE BARGAINING CONTRACT WAS THE
MULTIEMPLOYER UNIT WHOSE REPRESENTATIVES - ACTING ON BEHALF OF BOTH
DEALERS AND E&L - FULLY PARTICIPATED IN THE JOINT COMMITTEE'S DECISION
RESOLVING THE DISPUTE.  (FN4)  FURTHERMORE, AN EMPLOYER NOT WILLFULLY
PARTICIPATING IN UNION MISCONDUCT SHOULD NOT BE RESTRAINED FROM PUTTING
A GRIEVANCE SETTLEMENT INTO EFFECT MERELY BY BEING "PUT  ...  ON
NOTICE" THAT AN INDIVIDUAL EMPLOYEE HAS CHARGED THE UNION WITH
DISHONESTY.  SUCH A RULE WOULD PENALIZE THE HONEST EMPLOYER AND
ENCOURAGE GROUNDLESS CHARGES FRUSTRATING JOINT GRIEVANCE SETTLEMENTS. 
FINALLY, IT IS DIFFICULT TO CONCEIVE HOW MERE NOTICE TO AN EMPLOYER OF
UNION DISHONESTY CAN TRANSFORM THE UNION'S BREACH OF ITS DUTY OF FAIR
REPRESENTATION INTO A CONTRACTUAL VIOLATION BY THE EMPLOYER. 

IN SUMMARY, THEN, FOR THE REASONS STATED, I WOULD TREAT MOORE'S CLAIM
AS A SYRES-STEELE TYPE CAUSE OF ACTION RATHER THAN AS A SEC. 301(A)
CONTRACT ACTION.  SO CONSIDERING IT, I NEVERTHELESS CONCLUDE, AS THE
COURT DOES, THAT SINCE "THERE WAS NO FRAUD OR BREACH OF DUTY BY THE
EXCLUSIVE BARGAINING AGENT," ANTE, AT 351, MOORE IS NOT ENTITLED TO THE
RELIEF SOUGHT. 

I HAVE WRITTEN AT SOME LENGTH ON WHAT MAY SEEM A NARROW POINT.  I
HAVE DONE SO BECAUSE OF MY CONVICTION THAT IN THIS COURT'S FASHIONING
OF A FEDERAL LAW OF COLLECTIVE BARGAINING, IT IS OF THE UTMOST
IMPORTANCE THAT THE LAW REFLECT THE REALITIES OF INDUSTRIAL LIFE AND
THE NATURE OF THE COLLECTIVE BARGAINING PROCESS.  WE SHOULD NOT ASSUME
THAT DOCTRINES EVOLVED IN OTHER CONTEXTS WILL BE EQUALLY WELL ADAPTED
TO THE COLLECTIVE BARGAINING PROCESS.  OF COURSE, WE MUST PROTECT THE
RIGHTS OF THE INDIVIDUAL.  IT MUST NOT BE FORGOTTEN, HOWEVER, THAT MANY
INDIVIDUAL RIGHTS, SUCH AS THE SENIORITY RIGHTS INVOLVED IN THIS CASE,
IN FACT ARISE FROM THE CONCERTED EXERCISE OF THE RIGHT TO BARGAIN
COLLECTIVELY.  CONSEQUENTLY, THE UNDERSTANDABLE DESIRE TO PROTECT THE
INDIVIDUAL SHOULD NOT EMASCULATE THE RIGHT TO BARGAIN BY PLACING UNDUE
RESTRAINTS UPON THE CONTRACTING PARTIES.  SIMILARLY, IN SAFEGUARDING
THE INDIVIDUAL AGAINST THE MISCONDUCT OF THE BARGAINING AGENT, WE MUST
RECOGNIZE THAT THE EMPLOYER'S INTERESTS ARE INEVITABLY INVOLVED
WHENEVER THE LABOR CONTRACT IS SET ASIDE IN ORDER TO VINDICATE THE
INDIVIDUAL'S RIGHT AGAINST THE UNION.  THE EMPLOYER'S INTEREST SHOULD
NOT BE LIGHTLY DENIED WHERE THERE ARE OTHER REMEDIES AVAILABLE TO
INSURE THAT A UNION WILL RESPECT THE RIGHTS OF ITS CONSTITUENTS.  NOR
SHOULD TRIAL-TYPE HEARING STANDARDS OR CONCEPTIONS OF VESTED
CONTRACTUAL RIGHTS BE APPLIED SO AS TO HINDER THE EMPLOYER AND THE
UNION IN THEIR JOINT ENDEAVOR TO ADAPT THE COLLECTIVE BARGAINING
RELATIONSHIP TO THE EXIGENCIES OF ECONOMIC LIFE.  I HAVE DEEMED IT
NECESSARY TO STATE MY VIEWS SEPARATELY BECAUSE I BELIEVE THAT THE
COURT'S ANALYSIS IN PART RUNS CONTRARY TO THESE PRINCIPLES. 

FN1  E.G., UNITED STEELWORKERS OF AMERICA V. AMERICAN MANUFACTURING
CO., 363 U.S. 564; UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF
NAVIGATION CO., 363 U.S. 574; UNITED STEELWORKERS OF AMERICA V.
ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593. 

FN2  THE COURT STATES THAT "IN ITS BRIEF FILED HERE DEALERS DOES NOT
SUPPORT THE DECISION OF THE JOINT COMMITTEE."  SEE ANTE, AT 343, N. 3. 
THE COURT OVERLOOKS, HOWEVER, THAT DEALERS THROUGHOUT THE LITIGATION
HAS ACKNOWLEDGED THAT IT IS A PART OF THE MULTIEMPLOYER UNIT, WHICH IS
THE EMPLOYER PARTY TO THE COLLECTIVE BARGAINING AGREEMENT AND THAT THE
EMPLOYER REPRESENTATIVES ON THE JOINT CONFERENCE COMMITTEE ACTED
HONESTLY AND PROPERLY ON BEHALF OF THE EMPLOYER MEMBERS INCLUDING
DEALERS.  SEE INFRA, AT 357. 

FN3  THE CONTRACT IN THIS CASE SPECIFICALLY ENVISIONED SUCH A
RESULT.  SECTION 5 OF ARTICLE 4 PROVIDED THAT: 

"IN THE EVENT THAT THE EMPLOYER ABSORBS THE BUSINESS OF ANOTHER
PRIVATE, CONTRACT OR COMMON CARRIER, OR IS A PARTY TO A MERGER OF
LINES, THE SENIORITY OF THE EMPLOYEES ABSORBED OR AFFECTED THEREBY
SHALL BE DETERMINED BY MUTUAL AGREEMENT BETWEEN THE EMPLOYER AND THE
UNIONS INVOLVED.  ANY CONTROVERSY WITH RESPECT TO SUCH MATTER SHALL BE
SUBMITTED TO THE JOINT GRIEVANCE PROCEDURE  ...  ."   SECTION 2 OF
ARTICLE 7 ALSO PROVIDED THAT: 

"(D)  IT IS AGREED THAT ALL MATTERS PERTAINING TO THE INTERPRETATION
OF ANY PROVISION OF THIS AGREEMENT, WHETHER REQUESTED BY THE EMPLOYER
OR THE UNION, MUST BE SUBMITTED TO THE FULL COMMITTEE OF THE AUTOMOBILE
TRANSPORTERS JOINT CONFERENCE COMMITTEE, WHICH COMMITTEE, AFTER
LISTENING TO TESTIMONY ON BOTH SIDES, SHALL MAKE A DECISION." 

MOREOVER, AS THE COURT ITSELF POINTS OUT, OTHER PROVISIONS STATED
THAT IT WAS "THE INTENTION OF THE PARTIES TO RESOLVE ALL QUESTIONS OF
INTERPRETATION BY MUTUAL AGREEMENT" AND THAT THE EMPLOYER AGREED "TO BE
BOUND BY ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT, AND ALSO
AGREES TO BE BOUND BY THE INTERPRETATIONS AND ENFORCEMENT OF THE
AGREEMENT."  ANTE, AT 339. 

FN4  SEE NOTE 2, SUPRA. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT'S OPINION AND JUDGMENT INSOFAR AS IT RELATES
TO THE CLAIM THAT THE JOINT CONFERENCE COMMITTEE EXCEEDED ITS AUTHORITY
UNDER THE COLLECTIVE BARGAINING AGREEMENT.  ALTHOUGH IT IS UNDOUBTEDLY
TRUE AS A GENERAL PROPOSITION THAT BARGAINING REPRESENTATIVES HAVE
POWER TO ALTER THE TERMS OF A CONTRACT WITH AN EMPLOYER, THE CHALLENGE
HERE IS NOT TO A PURPORTED EXERCISE OF SUCH POWER BUT TO THE VALIDITY
OF A GRIEVANCE SETTLEMENT REACHED UNDER PROCEEDINGS ALLEGEDLY NOT
AUTHORIZED BY THE TERMS OF THE COLLECTIVE AGREEMENT.  MOREOVER, A
COMMITTEE WITH AUTHORITY TO SETTLE GRIEVANCES WHOSE COMPOSITION IS
DIFFERENT FROM THAT IN THE MULTIUNION-MULTIEMPLOYER BARGAINING UNIT
CANNOT BE DEEMED TO POSSESS POWER TO EFFECT CHANGES IN THE BARGAINING
AGREEMENT.  WHEN IT IS ALLEGED THAT THE UNION ITSELF HAS ENGAGED OR
ACQUIESCED IN SUCH A DEPARTURE FROM THE COLLECTIVE BARGAINING
AGREEMENT, I CAN SEE NO REASON WHY AN INDIVIDUALLY AFFECTED EMPLOYEE
MAY NOT STEP INTO THE SHOES OF THE UNION AND MAINTAIN A SEC. 301 SUIT
HIMSELF. 

BUT INSOFAR AS PETITIONERS' CLAIM RESTS UPON ALLEGED UNFAIR UNION
REPRESENTATION IN THE GRIEVANCE PROCEEDING, I AGREE WITH THE VIEWS
EXPRESSED IN THE CONCURRING OPINION OF MY BROTHER GOLDBERG (ANTE, 355
358) (EXCEPT THAT I WOULD EXPRESSLY RESERVE THE QUESTION OF WHETHER A
SUIT OF THIS NATURE WOULD BE MAINTAINABLE UNDER SEC. 301 WHERE IT IS
ALLEGED OR PROVED THAT THE EMPLOYER WAS A PARTY TO THE ASSERTED UNFAIR
UNION REPRESENTATION).  HOWEVER, THE CONCLUSION THAT UNILATERAL UNFAIR
UNION REPRESENTATION GIVES RISE ONLY TO A CAUSE OF ACTION FOR VIOLATION
OF A DUTY IMPLICIT IN THE NATIONAL LABOR RELATIONS ACT BRINGS ONE FACE
TO-FACE WITH A FURTHER QUESTION:  DOES SUCH A FEDERAL CAUSE OF ACTION
COME WITHIN THE PLAY OF THE PREEMPTION DOCTRINE, SAN DIEGO TRADES
COUNCIL V. GARMON, 359 U.S. 236, CONTRARY TO WHAT WOULD BE THE CASE
WERE SUCH A SUIT TO LIE UNDER SEC. 301, SMITH V. EVENING NEWS ASSN.,
371 U.S. 195?  SHORT OF DECIDING THAT QUESTION, I DO NOT THINK IT WOULD
BE APPROPRIATE TO DISPOSE OF THIS CASE SIMPLY BY SAYING THAT NO UNFAIR
UNION REPRESENTATION WAS SHOWN IN THIS INSTANCE.  FOR IF THERE BE
PREEMPTION IN THIS SITUATION, GARMON WOULD NOT ONLY PRECLUDE STATE
COURT JURISDICTION BUT WOULD ALSO REQUIRE THIS COURT INITIALLY TO DEFER
TO THE PRIMARY JURISDICTION OF THE LABOR BOARD. 

THE PREEMPTION ISSUE IS A DIFFICULT AND IMPORTANT ONE, CARRYING
RAMIFICATIONS EXTENDING FAR BEYOND THIS PARTICULAR CASE.  IT SHOULD NOT
BE DECIDED WITHOUT OUR HAVING THE BENEFIT OF THE VIEWS OF THOSE CHARGED
WITH THE ADMINISTRATION OF THE LABOR LAWS.  TO THAT END I WOULD REVERSE
THE JUDGMENT OF THE STATE COURT TO THE EXTENT THAT IT RESTS UPON A
HOLDING THAT THE JOINT CONFERENCE COMMITTEE ACTED BEYOND THE SCOPE OF
ITS AUTHORITY, SET THE CASE FOR REARGUMENT ON THE UNFAIR REPRESENTATION
ISSUE, AND INVITE THE NATIONAL LABOR RELATIONS BOARD TO PRESENT ITS
VIEWS BY BRIEF AND ORAL ARGUMENT ON THE PREEMPTION QUESTION.  CF.
RETAIL CLERKS INTERNATIONAL ASSN. V. SCHERMERHORN, 373 U.S. 746, 757;
375 U.S. 96. 
..END :











POLAR ICE CREAM & CREAMERY CO. V. ANDREWS, CONSTITUTING THE FLORIDA MILK
COMMISSION 375 U.S. 361 


NO. 38.  ARGUED NOVEMBER 20, 1963.  - DECIDED JANUARY 6, 1964.  - 208 F.
SUPP. 899, REVERSED AND REMANDED. 


APPELLANT (POLAR), LOCATED IN PENSACOLA, FLORIDA, IS A PROCESSOR AND
DISTRIBUTOR OF FLUID MILK AND MILK PRODUCTS, WHICH IT SELLS TO FLORIDA
CONSUMERS AND DEALERS.  IT HANDLES APPROXIMATELY 5,000,000 GALLONS OF
MILK EACH YEAR, AND SUPPLIES LARGE QUANTITIES TO UNITED STATES MILITARY
INSTALLATIONS.  PRIOR TO THE REGULATIONS CHALLENGED HERE, IT PURCHASED
APPROXIMATELY 30% OF ITS RAW MILK REQUIREMENTS FROM FLORIDA PRODUCERS,
THE REMAINDER FROM PRODUCERS OR BROKERS IN OTHER STATES.  THE FLORIDA
MILK CONTROL ACT AND THE ORDERS OF THE FLORIDA MILK COMMISSION HERE
CHALLENGED BY POLAR REGULATE DEALINGS BETWEEN MILK DISTRIBUTORS AND
MILK PRODUCERS LOCATED WITHIN THE PENSACOLA MILK MARKETING AREA. 
HELD: 

1.  THOSE PROVISIONS OF THE FLORIDA REGULATIONS WHICH REQUIRE POLAR
TO ACCEPT ITS TOTAL SUPPLY OF CLASS I MILK FROM DESIGNATED PENSACOLA
PRODUCERS AT A FIXED PRICE AND OBLIGE IT TO TAKE ALL MILK WHICH THESE
PRODUCERS OFFER ARE INVALID UNDER THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  PP. 373-379. 

(A)  THE CONTROLLING CASES ARE BALDWIN V. SEELIG, 294 U.S. 511; HOOD
& SONS V. DU MOND, 336 U.S. 525; AND DEAN MILK CO. V. MADISON, 340 U.S.
349.  P. 373. 

(B)  UNDER THE REGULATORY RESTRAINTS CHALLENGED HERE, OUT-OF-STATE
MILK MAY NOT PARTICIPATE IN THE MILK MARKET IN FLORIDA, INCLUDING THE
PREMIUM CLASS I MARKET, UNLESS LOCAL PRODUCTION IS INADEQUATE.   THESE
BARRIERS ARE PRECISELY THE KIND OF HINDRANCE TO THE INTRODUCTION OF
MILK FROM OTHER STATES WHICH BALDWIN CONDEMNED AS AN "UNREASONABLE CLOG
ON THE MOBILITY OF INTERSTATE COMMERCE."  PP. 375-377. 

(C)  BALDWIN AND DEAN MAKE CLEAR THAT THE EXCLUSION OF OUT-OF-STATE
MILK FROM A MAJOR PORTION OF A STATE'S MARKET CANNOT BE JUSTIFIED AS AN
ECONOMIC MEASURE TO PROTECT THE WELFARE OF LOCAL DAIRY FARMERS OR AS A
HEALTH MEASURE DESIGNED TO INSURE THE EXISTENCE OF A WHOLESOME SUPPLY
OF MILK.  P. 377. 

(D) NEBBIA V. NEW YORK, 291 U.S. 502, HIGHLAND FARMS DAIRY V. AGNEW,
300 U.S. 608, AND MILK CONTROL BOARD V. EISENBERG FARM PRODUCTS, 306
U.S. 346, DISTINGUISHED.  PP. 378-379. 

2.  THE QUESTION OF THE VALIDITY OF THE PRODUCER PRICE REQUIREMENT OF
THE FLORIDA LAW AS APPLIED TO POLAR'S SALES TO UNITED STATES MILITARY
RESERVATIONS IS NOT HERE DETERMINED.  PP. 379-381. 

3.  THE PROVISION OF THE MILK CONTROL ACT WHICH IMPOSES A TAX OF
15/100 OF 1 CENT UPON EACH GALLON OF MILK DISTRIBUTED BY A FLORIDA
DISTRIBUTOR - TO THE EXTENT THAT THE COMPUTATION OF THE TAX INCLUDES
MILK SOLD TO FEDERAL ENCLAVES OVER WHICH THE UNITED STATES EXERCISES
EXCLUSIVE JURISDICTION - IS NOT INVALID AS BEYOND THE JURISDICTION OF
THE STATE.  PP. 381-383. 

(A)  THE INCIDENCE OF THE TAX APPEARS TO BE UPON THE ACTIVITY OF
PROCESSING OR BOTTLING MILK IN A PLANT LOCATED WITHIN FLORIDA, AND NOT
UPON WORK PERFORMED ON A FEDERAL ENCLAVE OR UPON THE SALE AND DELIVERY
OF MILK OCCURING WITHIN THE BOUNDARIES OF FEDERAL PROPERTY.  P. 382. 

(B)  THE DISTRIBUTING OF MILK HAS ITS PROCESSING DIMENSION, A
SUBSTANTIAL ACTIVITY OCCURRING WITHIN FLORIDA, AND THIS IS ENOUGH TO
SUSTAIN THE TAX.  P. 383. 

(C)  THE PROVISION OF 4 U.S.C. SECS. 105, 110, CONFERRING UPON THE
STATES JURISDICTION TO LEVY AND COLLECT A SALES OR USE TAX "IN ANY
FEDERAL AREA," AND DEFINING A SALES OR USE TAX AS "ANY TAX LEVIED ON,
WITH RESPECT TO, OR MEASURED BY, SALES  ...  OF TANGIBLE PERSONAL
PROPERTY," PROVIDES AMPLE BASIS FOR FLORIDA TO LEVY A TAX MEASURED BY
THE AMOUNT OF MILK POLAR DISTRIBUTES MONTHLY, INCLUDING MILK SOLD TO
THE UNITED STATES FOR USE ON FEDERAL ENCLAVES IN FLORIDA.  P. 383. 

POLAR ICE CREAM & CREAMERY CO. V. ANDREWS ET AL., CONSTITUTING THE
FLORIDA MILK COMMISSION, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF FLORIDA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

WE HAVE BEFORE US THE RECURRING QUESTION OF THE VALIDITY OF A STATE'S
ATTEMPT TO REGULATE THE SUPPLY AND DISTRIBUTION OF MILK AND MILK
PRODUCTS.  CHALLENGED IN THIS CASE IS FLORIDA'S SYSTEM OF REGULATION OF
THE DEALINGS BETWEEN MILK DISTRIBUTORS AND LOCAL PRODUCERS. 

THE APPELLANT, POLAR ICE CREAM & CREAMERY COMPANY, LOCATED IN
PENSACOLA, FLORIDA, 16 MILES FROM THE FLORIDA-ALABAMA STATE LINE, IS A
PROCESSOR AND DISTRIBUTOR OF FLUID MILK AND MILK PRODUCTS.  IT SELLS
FLUID MILK AND MILK PRODUCTS FOR HUMAN CONSUMPTION TO CONSUMERS AND
DEALERS WITHIN THE STATE OF FLORIDA IN COMPETITION WITH NEARBY ALABAMA
DISTRIBUTORS.  PURSUANT TO CONTRACTS LET AFTER COMPETITIVE BIDDING, IT
ALSO SUPPLIES LARGE QUANTITIES OF MILK TO MILITARY INSTALLATIONS, BOTH
WITHIN AND WITHOUT THE STATE OF FLORIDA.  IT PURCHASES, PROCESSES AND
SELLS AS FLUID MILK OR MILK PRODUCTS APPROXIMATELY 5,000,000 GALLONS OF
MILK EACH YEAR. 

PRIOR TO THE REGULATIONS CHALLENGED HERE, POLAR PURCHASED
APPROXIMATELY 30% OF ITS MILK REQUIREMENTS FROM DAIRY FARM PRODUCERS
LOCATED WITHIN THE STATE OF FLORIDA.  THE REMAINING 70% WAS PROCURED
FROM PRODUCERS, PRODUCER POOLS OR BROKERS IN OTHER STATES, SUCH AS
ALABAMA, MISSISSIPPI, WISCONSIN, MINNESOTA, MISSOURI, VIRGINIA, AND
ILLINOIS.  ITS CUSTOMARY ARRANGEMENT WITH FLORIDA PRODUCERS WAS TO PAY
61 CENTS PER GALLON FOR A SPECIFIED QUANTITY OF MILK FROM EACH PRODUCER
AND APPROXIMATELY 35.5 CENTS PER GALLON FOR ALL MILK OVER THAT
QUANTITY.  THE PRICE POLAR PAID ITS OUT-OF-STATE SOURCES VARIED; SOME
MILK WAS PURCHASED FOR AS LOW AS 30-35 CENTS PER GALLON FROM ALABAMA,
VIRGINIA, AND ARKANSAS SOURCES.  POLAR'S FLORIDA PRODUCERS COULD AT NO
TIME SUPPLY ALL OF POLAR'S MILK REQUIREMENTS, BUT AT TIMES PRODUCED AND
SOLD TO POLAR AMOUNTS EQUAL TO OR GREATER THAN POLAR'S SALES OF FLUID
MILK FOR HUMAN CONSUMPTION TO CONSUMERS AND DEALERS IN FLORIDA,
EXCLUDING SALES TO THE MILITARY, SALES ON RESERVATIONS, AND SALES TO
LOCAL SCHOOLS. 

THE STATUTE AND THE ORDERS OF THE FLORIDA MILK COMMISSION CHALLENGED
BY POLAR REGULATE THE DEALINGS BETWEEN MILK DISTRIBUTORS AND MILK
PRODUCERS LOCATED WITHIN THE PENSACOLA MILK MARKETING AREA.  (FN1)
FIRST, THEY REQUIRE THAT A PENSACOLA MILK DISTRIBUTOR PAY A MINIMUM
PRICE OF 61 CENTS PER GALLON FOR ALL MILK PURCHASED FROM PENSACOLA
PRODUCERS AND SOLD IN FLORIDA AS CLASS I MILK, DEFINED AS FLUID MILK OR
MILK PRODUCTS SOLD IN FLUID FORM WITH EXCEPTIONS, AND SUBSTANTIALLY
LOWER MINIMUM PRICES FOR MILK SOLD AS CLASS II, III, AND IV MILK, (FN2)
CONSISTING CHIEFLY OF NONBEVERAGE MILK SUCH AS CREAM, SOUR CREAM AND
OTHER DAIRY PRODUCTS. 

SECOND, THE COMMISSION HAS ESTABLISHED A METHOD BY WHICH A PROPORTION
OF A DISTRIBUTOR'S MONTHLY SALES IN VARIOUS CLASSES IS ALLOCATED TO
DESIGNATED PENSACOLA PRODUCERS.  EACH PENSACOLA PRODUCER WITH WHOM
POLAR DOES BUSINESS BETWEEN SEPTEMBER 1 AND NOVEMBER 30 OF EACH YEAR,
CALLED THE BASE-FIXING PERIOD, IS ASSIGNED AN EARNED BASE, REPRESENTING
THE RATIO OF MILK DELIVERED BY SUCH PRODUCER TO THE TOTAL MILK
DELIVERED BY ALL OF POLAR'S PENSACOLA PRODUCERS DURING THE BASE-FIXING
PERIOD.  THE RESULTANT PERCENTAGE IS THEN APPLIED TO THE NUMBER OF
GALLONS OF MILK POLAR SELLS IN CLASS I, II, III, AND IV CHANNELS
MONTHLY, IN THAT ORDER, TO DETERMINE THE NUMBER OF GALLONS FOR WHICH
EACH EARNED-BASE PRODUCER MUST BE PAID THE MINIMUM PRICES ASSIGNED TO
EACH CLASS OR UTILIZATION.  (FN3) 

THE ALLOCATION OF A PRODUCER'S DELIVERIES MUST FIRST BE TO CLASS I
UTILIZATION, WITH ALLOCATION CONTINUED THEREAFTER IN DESCENDING ORDER
THROUGH THE LOWER CLASSIFICATIONS.  ONLY DELIVERIES BY PENSACOLA
PRODUCERS ARE CONSIDERED IN CALCULATING THE RATIO OF EACH PRODUCER'S
DELIVERIES TO TOTAL DELIVERIES TO POLAR DURING THE BASE-FIXING PERIOD
AND THEREFORE THE PERCENTAGE ASSIGNED TO THESE PRODUCERS TOTALS 100%.
THE RESULT IS THAT ALL OF POLAR'S CLASS I SALES MUST BE ATTRIBUTED TO
ITS PENSACOLA EARNED-BASE PRODUCERS.  ONLY THEN MAY THEIR MILK BE USED
FOR THE LESS REMUNERATIVE UTILIZATIONS, AND ONLY IF THESE PRODUCERS DO
NOT FULFILL POLAR'S NEED FOR CLASS I MILK MAY OTHER MILK BE USED FOR
THIS PURPOSE AND THUS COMMAND A PREMIUM PRICE.  MOREOVER, THE FORMULA
REQUIRES THAT ALL THE MILK POLAR SELLS IN FLORIDA BE FIRST ATTRIBUTED
TO THE PURCHASES THAT IT MAKES FROM PENSACOLA PRODUCERS.  (FN4)  THE
EARNED-BASE PERCENTAGES REMAIN THE SAME UNTIL THE NEXT BASE-FIXING
PERIOD. 

THIRD, THE STATUTE FORBIDS TERMINATION OF THE BUSINESS RELATIONSHIP
BETWEEN A DISTRIBUTOR AND PRODUCER WITH WHOM THE DISTRIBUTOR HAS HAD A
CONTINUOUS COURSE OF DEALINGS WITHOUT JUST CAUSE AND PROVIDES THAT
REJECTION OR REFUSAL TO ACCEPT ANY MILK TENDERED OR OFFERED FOR
DELIVERY BY A PRODUCER IN ORDINARY CONTINUANCE OF A PREVIOUS COURSE OF
DEALINGS IS A GROUND FOR REVOCATION OF THE DISTRIBUTOR'S LICENSE. 
(FN5)  THESE STATUTORY PROVISIONS HAVE BEEN CONSTRUED TO MEAN THAT A
FLORIDA DISTRIBUTOR IN A REGULATED MARKETING AREA MUST ACCEPT FROM HIS
EARNED-BASE PRODUCERS ALL THE MILK TENDERED BY SUCH PRODUCERS,
INCLUDING MILK IN EXCESS OF CLASS I NEEDS.  A DISTRIBUTOR IS RELIEVED
OF THE OBLIGATION TO PURCHASE MILK FROM EARNED-BASE PRODUCERS ONLY UPON
A SHOWING OF JUST CAUSE, WHICH IS NOT MET BY A DEMONSTRATION THAT THE
COMMISSION'S MINIMUM PRICES ARE BURDENSOME OR THAT MILK IS AVAILABLE
ELSEWHERE AT A LOWER PRICE.  (FN6) 

IT IS THIS THREE-PRONGED REGULATORY STRUCTURE, REQUIRING POLAR TO
ACCEPT ITS TOTAL SUPPLY OF CLASS I MILK, MILITARY MILK ASIDE, FROM
DESIGNATED PENSACOLA PRODUCERS AT A FIXED PRICE, AND OBLIGATING IT TO
TAKE ALL MILK WHICH THESE PRODUCERS OFFER, WHICH POLAR ARGUES IMPOSES
AN UNDUE BURDEN ON INTERSTATE COMMERCE.  (FN7) 

THE FLORIDA MILK COMMISSION ALSO PROPOSED SPECIAL PROVISIONS DEALING
WITH MILK THAT IS SOLD TO MILITARY INSTALLATIONS OF THE UNITED STATES -
MILITARY MILK.  ALTHOUGH CHALLENGED BY POLAR AT THE OUTSET OF THIS
LITIGATION, THIS PLAN WAS NOT VOTED INTO EFFECT.  WHILE THE PRESENT
STATUS OF MILITARY MILK UNDER FLORIDA LAW IS NOT ENTIRELY CLEAR FROM
THE RECORD OR ARGUMENTS OF THE PARTIES, WE READ THE TESTIMONY OF THE
COMMISSION TO MEAN THAT POLAR IS NOT REQUIRED TO PURCHASE MILITARY MILK
FROM ITS PENSACOLA PRODUCERS, AS IT IS CLASS I MILK.  HOWEVER, IF POLAR
DOES UTILIZE MILK OBTAINED FROM ITS EARNED-BASE PRODUCERS FOR MILITARY
SALES, IT MUST PAY THE MINIMUM PRICE APPLICABLE TO CLASS I SALES. 
POLAR CHALLENGES THIS PRODUCER PRICE REQUIREMENT AS INCONSISTENT WITH
THE FEDERAL PROCUREMENT POLICY OF COMPETITIVE BIDDING, AND THE FEDERAL
GOVERNMENT'S EXCLUSIVE JURISDICTION OVER THE INSTALLATIONS ON WHICH
THIS MILK IS CONSUMED. 

TO FINANCE THE ACTIVITIES OF THE MILK COMMISSION, FLORIDA IMPOSES A
TAX OR REGULATORY FEE OF 15/100 OF 1 CENT PER GALLON OF ALL MILK
HANDLED BY FLORIDA DISTRIBUTORS REGARDLESS OF WHERE PURCHASED OR TO
WHOM IT IS SOLD, INCLUDING MILK THAT POLAR SELLS TO MILITARY
INSTALLATIONS.  THIS TAX ABATES IF AT ANY TIME THE REVENUE EXCEEDS BY
25% THE TOTAL AMOUNT OF COMMISSION EXPENDITURES AS BUDGETED FOR THAT
FISCAL YEAR.  (FN8)  POLAR, WHICH CLEARLY IS OBLIGED TO PAY THIS FEE,
CONTENDS THAT THE STATE IS WITHOUT JURISDICTION TO INCLUDE MILK SOLD
AND DELIVERED TO MILITARY RESERVATIONS, EXCLUSIVE JURISDICTION TO WHICH
HAS BEEN CEDED TO THE UNITED STATES, IN CALCULATING THE AMOUNT OF THE
TAX. 

SINCE POLAR'S OBJECTIONS TO THE FLORIDA MILK CONTROL ACT POSED
SUBSTANTIAL FEDERAL QUESTIONS, A THREE-JUDGE DISTRICT COURT WAS
CONVENED, 28 U.S.C. SEC. 2281, AND TESTIMONY WAS TAKEN AND ARGUMENTS
HEARD IN RESPECT TO THE ABOVE QUESTIONS.  THIS COURT FOUND THAT THE
FLORIDA MILK CONTROL ACT WAS A REASONABLE EXERCISE OF THE STATE'S
POLICE POWER AND ACCORDINGLY REJECTED POLAR'S CLAIMS THAT THE ACT, IN
FIXING PRODUCER PRICES WITHOUT ASSURING POLAR ANY RATE OF RETURN AND IN
COMPELLING POLAR TO TAKE ALL THE MILK OF ITS EARNED-BASE PRODUCERS,
DENIED IT DUE PROCESS OF LAW AND EQUAL PROTECTION.  THE DISTRICT COURT
ALSO FOUND THAT FLORIDA'S FEE ON MILK DISTRIBUTED BY POLAR TO MILITARY
INSTALLATIONS WAS A REGULATORY FEE BASED ON THE PRIVILEGE OF DOING
BUSINESS IN FLORIDA AND NOT A TAX AND CONCLUDED THAT THIS MEASURE
THEREFORE DID NOT UNDULY BURDEN INTERSTATE COMMERCE OR INFRINGE UPON
THE EXCLUSIVE JURISDICTION OF THE UNITED STATES OVER THE MILITARY
INSTALLATIONS POLAR SERVES.  THE FLORIDA PRODUCER PRICE CONTROLS WERE
SAID NOT TO CONFLICT WITH THE FEDERAL PROCUREMENT STATUTES, 10 U.S.C.
SEC. 2301 ET SEQ., SINCE THEY DID NOT IMPOSE ANY RESTRICTION ON THE
PRICE PAID BY THE FEDERAL GOVERNMENT FOR ITS PURCHASES FROM POLAR. 
ALTHOUGH FINDING THAT THE FLORIDA REGULATIONS WERE INTENDED TO PROTECT
AND FAVOR FLORIDA MILK PRODUCERS, THE COURT UPHELD THESE REGULATIONS
OVER COMMERCE CLAUSE OBJECTIONS BECAUSE THERE WAS NO SHOWING THAT THE
ALLEGED DISCRIMINATION AGAINST OUT-OF-STATE PRODUCERS BURDENED OR
RESTRICTED INTERSTATE COMMERCE.  THE DECISION IN BALDWIN V. SEELIG, 294
U.S. 511, INVALIDATING A STATE RESTRICTION IMPOSED ON A MILK
DISTRIBUTOR TO SHIELD LOCAL MILK PRODUCERS FROM THE EFFECTS OF OUT-OF
STATE COMPETITION, WAS DEEMED INAPPLICABLE TO FLORIDA'S REGULATIONS. 
BECAUSE OF THE SERIOUS QUESTIONS RAISED UNDER THE COMMERCE CLAUSE AND
PREVIOUS DECISIONS HERE DEALING WITH MILK REGULATIONS, WE NOTED
PROBABLE JURISDICTION.  372 U.S. 939.  WE HAVE DETERMINED THAT UNDER
PRIOR CASES IN THIS COURT DEALING WITH STATE REGULATION OF THE MILK
INDUSTRY THE FLORIDA LAW AS APPLIED IN THIS CASE CANNOT WITHSTAND
ATTACK BASED UPON THE COMMERCE CLAUSE AND THAT THE JUDGMENT BELOW MUST
BE REVERSED. 

                                I. 

THE CONTROLLING CASES ARE BALDWIN V. SEELIG, 294 U.S. 511; HOOD &
SONS V. DU MOND, 336 U.S. 525; AND DEAN MILK CO. V. MADISON, 340 U.S.
349. 

IN BALDWIN, THE METROPOLITAN MILK DISTRICT IN THE STATE OF NEW YORK
OBTAINED ABOUT 70% OF ITS SUPPLIES FROM NEW YORK SOURCES, THE REMAINING
30% FROM OTHER STATES.  THE NEW YORK LAW FORBADE THE SALE IN NEW YORK
OF MILK OBTAINED BY A DISTRIBUTOR FROM OTHER STATES UNLESS THE
DISTRIBUTOR HAD PAID A PRICE WHICH WOULD BE LAWFUL UNDER THE NEW YORK
PRICE REGULATIONS.  THIS PROVISION WAS ATTACKED BY A NEW YORK MILK
DISTRIBUTOR, ALL OF WHOSE MILK SUPPLY WAS PURCHASED IN VERMONT FOR LESS
THAN THE ESTABLISHED NEW YORK PRICE.  REMARKING THAT THE NEW YORK LAW
AIMED AT KEEPING "THE SYSTEM UNIMPAIRED BY COMPETITION FROM AFAR," 294
U.S., AT 519, THE COURT STRUCK DOWN THIS PROVISION AS AN IMPERMISSIBLE
BURDEN UPON INTERSTATE COMMERCE.  NEW YORK COULD NOT OUTLAW VERMONT
MILK PURCHASED AT BELOW NEW YORK PRICES, FOR TO DO SO WOULD "SET A
BARRIER TO TRAFFIC BETWEEN ONE STATE AND ANOTHER AS EFFECTIVE AS IF
CUSTOMS DUTIES, EQUAL TO THE PRICE DIFFERENTIAL, HAD BEEN LAID UPON THE
THING TRANSPORTED," 294 U.S., AT 521 - WHICH IS FORBIDDEN TO THE STATES
BY THE CONSTITUTION, ART. I, SEC. 10, CL. 2, AND RESERVED TO CONGRESS
BY ART. I, SEC. 8, CL. 3.  NICE DISTINCTIONS BETWEEN DIRECT AND
INDIRECT BURDENS WERE SAID TO BE IRRELEVANT. 

"WHEN THE AVOWED PURPOSE OF THE OBSTRUCTION, AS WELL AS ITS NECESSARY
TENDENCY, IS TO SUPPRESS OR MITIGATE THE CONSEQUENCES OF COMPETITION
BETWEEN THE STATES  ... A CHIEF OCCASION OF THE COMMERCE CLAUSES WAS
'THE MUTUAL JEALOUSIES AND AGGRESSIONS OF THE STATES, TAKING FORM IN
CUSTOMS BARRIERS AND OTHER ECONOMIC RETALIATION.'  FARRAND, RECORDS OF
THE FEDERAL CONVENTION, VOL. II, P. 308; VOL. III, PP. 478, 547, 548;
THE FEDERALIST, NO. XLII; CURTIS, HISTORY OF THE CONSTITUTION, VOL. 1,
P. 502; STORY ON THE CONSTITUTION, SEC. 259.  IF NEW YORK, IN ORDER TO
PROMOTE THE ECONOMIC WELFARE OF HER FARMERS, MAY GUARD THEM AGAINST
COMPETITION WITH THE CHEAPER PRICES OF VERMONT, THE DOOR HAS BEEN
OPENED TO RIVALRIES AND REPRISALS THAT WERE MEANT TO BE AVERTED BY
SUBJECTING COMMERCE BETWEEN THE STATES TO THE POWER OF THE NATION." 
294 U.S., AT 522. 

TO THE ARGUMENT THAT THE LAW WAS IN REALITY A HEALTH MEASURE, SINCE
FARMERS MUST BE PROTECTED FROM COMPETITION IF THEY ARE TO PROVIDE THE
RELIABLE SUPPLY OF HEALTHFUL MILK WHICH THE LOCALITY IS ENTITLED TO
HAVE, THE COURT SAID: 

"LET SUCH AN EXCEPTION BE ADMITTED, AND ALL THAT A STATE WILL HAVE TO
DO IN TIMES OF STRESS AND STRAIN IS TO SAY THAT ITS FARMERS AND
MERCHANTS AND WORKMEN MUST BE PROTECTED AGAINST COMPETITION FROM
WITHOUT, LEST THEY GO UPON THE POOR RELIEF LISTS OR PERISH ALTOGETHER. 
TO GIVE ENTRANCE TO THAT EXCUSE WOULD BE TO INVITE A SPEEDY END OF OUR
NATIONAL SOLIDARITY.  THE CONSTITUTION WAS FRAMED UNDER THE DOMINION OF
A POLITICAL PHILOSOPHY LESS PAROCHIAL IN RANGE.  IT WAS FRAMED UPON THE
THEORY THAT THE PEOPLES OF THE SEVERAL STATES MUST SINK OR SWIM
TOGETHER, AND THAT IN THE LONG RUN PROSPERITY AND SALVATION ARE IN
UNION AND NOT DIVISION."  294 U.S., AT 523.  (FN9) 

BALDWIN WAS HEAVILY RELIED UPON IN BOTH DU MOND AND DEAN, SUPRA.  IN
DU MOND, NEW YORK WAS FOUND TO HAVE NO POWER UNDER THE COMMERCE CLAUSE
TO FORBID AN OUT-OF-STATE DISTRIBUTOR FROM ESTABLISHING ADDITIONAL
PROCESSING PLANTS AND ADDITIONAL SOURCES OF MILK WITHIN THE STATE.  IN
DEAN, THE CITY OF MADISON WAS PREVENTED FROM RESERVING THE MADISON
MARKET TO PRODUCERS AND DISTRIBUTORS LOCATED WITHIN A SPECIFIED
DISTANCE OF THE CITY, ALTHOUGH PURPORTED CONSIDERATIONS OF PUBLIC
HEALTH WERE ADVANCED AS JUSTIFYING THE RESTRICTION.    THE PRINCIPLES
OF BALDWIN ARE AS SOUND TODAY AS THEY WERE WHEN ANNOUNCED.  THEY
JUSTIFY, INDEED REQUIRE, INVALIDATION AS A BURDEN ON INTERSTATE
COMMERCE OF THAT PART OF THE FLORIDA REGULATORY SCHEME WHICH RESERVES
TO ITS LOCAL PRODUCERS A SUBSTANTIAL SHARE OF THE FLORIDA MILK MARKET. 

          II. 

UNDER THE CONTROLS CHALLENGED HERE, POLAR MUST BUY FROM ITS FLORIDA
PRODUCERS, AND PAY 61 CENTS PER GALLON FOR IT, AN AMOUNT OF RAW MILK
EQUAL TO ITS CLASS I SALES IF IT IS AVAILABLE FROM THESE PRODUCERS.  IF
MORE THAN THIS AMOUNT IS OFFERED, POLAR MUST ALSO TAKE THE SURPLUS AT
THE LOWER ESTABLISHED PRICES.  AND THESE OBLIGATIONS CONTINUE TO BIND
POLAR EVEN THOUGH BOTH ITS CLASS I NEEDS AND THE SURPLUS OBTAINABLE
FROM FLORIDA PRODUCERS MAY STEADILY INCREASE.  POLAR OBVIOUSLY WILL NOT
AND CANNOT USE OUTSIDE MILK FOR THOSE USES FOR WHICH IT IS REQUIRED TO
USE FLORIDA MILK.  POLAR MAY TURN TO OUT-OF-STATE SOURCES ONLY AFTER
EXHAUSTING THE SUPPLY OFFERED BY ITS PENSACOLA PRODUCERS.  UNDER THE
CHALLENGED REGULATIONS, AN ALABAMA DAIRY FARMER COULD NOT BECOME ONE OF
POLAR'S REGULAR PRODUCERS AND SELL ALL OF HIS MILK TO THAT COMPANY. 
SINCE HE COULD NOT SHARE IN THE CLASS I MARKET - PENSACOLA PRODUCERS
ARE PROBABLY ABLE TO SUPPLY THAT MARKET - HIS MILK COULD COMMAND ONLY
THE LOWER PRICES APPLICABLE TO THE LESS REMUNERATIVE USES, PRICES WHICH
WOULD NOT COVER HIS COST OF PRODUCTION.  (FN10) 

THE CONSEQUENCES FOR INTERSTATE COMMERCE ARE CLEAR.  IN BALDWIN NEW
YORK'S PRICE CONTROL REMOVED ANY ECONOMIC INCENTIVE FOR A LOCAL
DISTRIBUTOR TO PURCHASE OUT-OF-STATE MILK AND THEREBY ENCOURAGED ITS
DISTRIBUTORS FIRST TO CONSUME THE LOCAL SUPPLY OF MILK BEFORE TURNING
TO OUT-OF-STATE SOURCES.  OUT-OF-STATE MILK WAS DENIED AN EQUAL
OPPORTUNITY TO COMPETE WITH NEW YORK-PRODUCED MILK TO THE EXTENT THAT
THE OUT-OF-STATE SUPPLY BORE ADDITIONAL TRANSPORTATION CHARGES.  THE
FLORIDA CONTROLS PREEMPT FOR THE FLORIDA PRODUCERS A LARGE SHARE OF THE
FLORIDA MARKET, ESPECIALLY THE MOST LUCRATIVE FLUID MILK MARKET.  OUT
OF-STATE MILK MAY NOT PARTICIPATE IN THIS PART OF THE FLORIDA MARKET,
UNLESS LOCAL PRODUCTION IS INADEQUATE, AND GIVEN THE EXCLUSIVE DOMAIN
OF THE FLORIDA PRODUCERS OVER CLASS I SALES, OUT-OF-STATE MILK MAY NOT
PROFITABLY SERVE THE REMAINDER OF THE FLORIDA MARKET, SINCE IT IS
RELEGATED TO THE SURPLUS MARKET ALONE.  THESE BARRIERS ARE PRECISELY
THE KIND OF HINDRANCE TO THE INTRODUCTION OF MILK FROM OTHER STATES
WHICH BALDWIN CONDEMNED AS AN "UNREASONABLE CLOG UPON THE MOBILITY OF
COMMERCE.  THEY SET UP WHAT IS EQUIVALENT TO A RAMPART OF CUSTOMS
DUTIES DESIGNED TO NEUTRALIZE ADVANTAGES BELONGING TO THE PLACE OF
ORIGIN.  THEY ARE THUS HOSTILE IN CONCEPTION AS WELL AS BURDENSOME IN
RESULT."  294 U.S., AT 527. 

THE EXCLUSION OF FOREIGN MILK FROM A MAJOR PORTION OF THE FLORIDA
MARKET CANNOT BE JUSTIFIED AS AN ECONOMIC MEASURE TO PROTECT THE
WELFARE OF FLORIDA DAIRY FARMERS OR AS A HEALTH MEASURE DESIGNED TO
INSURE THE EXISTENCE OF A WHOLESOME SUPPLY OF MILK.  THIS MUCH BALDWIN
AND DEAN MADE CLEAR.  NOR IS IT AN ESCAPE FROM BALDWIN TO SAY THAT
POLAR HAS NO INTEREST IN PROVIDING A SATISFACTORY BLEND PRICE AS A
BASIS FOR ONGOING RELATIONSHIPS WITH ANY OUT-OF-STATE PRODUCER AND THAT
ITS ONLY INTEREST IS IN BUYING SURPLUS MILK AT DISTRESS PRICES FROM OUT
OF-STATE SOURCES AND SELLING IT AT CLASS I PRICES IN THE FLORIDA
MARKET, ALL TO THE DETRIMENT OF FLORIDA PRODUCERS AND AN ORDERLY
MARKET.  FOR THIS IS BUT ANOTHER ASSERTION THAT A STATE MAY PREEMPT ITS
MARKET FOR ITS OWN PRODUCERS TO THE EXCLUSION OF PRODUCTION FROM OTHER
AREAS.  FLORIDA HAS NO POWER "TO PROHIBIT THE INTRODUCTION WITHIN HER
TERRITORY OF MILK OF WHOLESOME QUALITY ACQUIRED (IN ANOTHER STATE),
WHETHER AT HIGH PRICES OR AT LOW ONES," 294 U.S. 521; THE STATE MAY
NOT, IN THE SOLE INTEREST OF PROMOTING THE ECONOMIC WELFARE OF ITS
DAIRY FARMERS, INSULATE THE FLORIDA MILK INDUSTRY FROM COMPETITION FROM
OTHER STATES. 

FLORIDA, IT IS TRUE, DOES NOT PREVENT DISTRIBUTORS LOCATED IN OTHER
STATES FROM SELLING WHOLESOME FLUID MILK IN THE FLORIDA MARKET.  BUT
ALLOWING COMPETITION ON THE DISTRIBUTOR LEVEL IS NO JUSTIFICATION FOR
BARRING INTERSTATE MILK FROM THE MOST LUCRATIVE SEGMENT OF FLORIDA'S
RAW MILK MARKET.  GIVEN SUCH DISTRIBUTOR COMPETITION AS THERE IS,
(FN11) THERE IS STILL MILK IN OTHER STATES WHICH POLAR CAN AND WANTS TO
ACQUIRE AND WHICH IT WILL NOT ACQUIRE IN THE FACE OF THE FLORIDA
REGULATIONS.  THE BURDEN ON COMMERCE AND THE EMBARGO OF OUT-OF-STATE
MILK REMAIN. 

THE CASES RELIED UPON BY THE COMMISSION DO NOT SAVE THE REGULATORY
SCHEME CHALLENGED HERE.  NEBBIA V. NEW YORK, 291 U.S. 502, ESTABLISHED
THAT MINIMUM RETAIL AND WHOLESALE PRICES OF MILK PURCHASED AND SOLD
WITHIN THE STATE DO NOT OFFEND THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES.  NOR IS SUCH PRICE REGULATION AN IMPERMISSIBLE BURDEN UPON
COMMERCE, HIGHLAND FARMS DAIRY V. AGNEW, 300 U.S. 608, EVEN AS APPLIED
TO A DISTRIBUTOR WHO PURCHASES AND COOLS MILK WITHIN THE STATE AND THEN
TRANSPORTS IT TO ANOTHER STATE FOR PROCESSING AND SALE, SINCE THE
BURDEN ON COMMERCE IS INDIRECT AND ONLY INCIDENTAL TO THE REGULATION OF
AN ESSENTIALLY LOCAL ACTIVITY.  MILK CONTROL BOARD V. EISENBERG FARM
PRODUCTS, 306 U.S. 346.  IN NONE OF THESE CASES WAS THERE ANY ATTEMPT
TO RESERVE A LOCAL MARKET FOR LOCAL PRODUCERS OR TO PROTECT LOCAL
PRODUCERS FROM OUT-OF-STATE COMPETITION BY MEANS OF PURCHASE AND
ALLOCATION REQUIREMENTS IMPOSED UPON MILK DISTRIBUTORS. 

THE POWER WHICH WE DENY TO FLORIDA IS RESERVED TO CONGRESS UNDER THE
COMMERCE CLAUSE, AND WE ARE OFFERED NOTHING INDICATING EITHER
CONGRESSIONAL CONSENT TO, OR ACQUIESCENCE IN, A REGULATORY SCHEME SUCH
AS FLORIDA HAS EMPLOYED.  ON THE CONTRARY, UNDER THE PRESENT ACT
AUTHORIZING FEDERAL MARKETING ORDERS IN THE MILK INDUSTRY, SUCH AN
ORDER MAY NOT "PROHIBIT OR IN ANY MANNER LIMIT, IN THE CASE OF THE
PRODUCTS OF MILK, THE MARKETING  ...  OF ANY MILK OR PRODUCT THEREOF
PRODUCED IN ANY PRODUCTION AREA IN THE UNITED STATES."  THIS PROVISION,
AS THE COURT EXPLAINED IN LEHIGH VALLEY COOP.  V. UNITED STATES, 370
U.S. 76, WAS INTENDED TO PREVENT THE SECRETARY OF AGRICULTURE FROM
SETTING UP TRADE BARRIERS TO THE IMPORTATION OF MILK FROM OTHER
PRODUCTION AREAS IN THE UNITED STATES.  WE SERIOUSLY DOUBT THAT
CONGRESS, IN DENYING THE POWER TO THE SECRETARY, THEREBY GRANTED IT TO
THE STATES. 

                                   III. 

WE TURN TO THE MATTER OF POLAR'S SALES TO UNITED STATES MILITARY
RESERVATIONS.  FLORIDA DOES NOT PURPORT TO REGULATE THE PRICE WHICH
POLAR MUST CHARGE FOR MILK SOLD TO THE GOVERNMENT ON OR OFF MILITARY
BASES.  FLORIDA REGULATES ONLY THE PRICE WHICH POLAR MUST PAY FOR ITS
MILK, NOT WHAT IT MUST SELL IT FOR.  SINCE THE HOLDING IN PAUL V.
UNITED STATES, 371 U.S. 245, DEALT ONLY WITH THE CONFLICT BETWEEN
FEDERAL PROCUREMENT REGULATIONS AND A STATE'S ATTEMPT TO PRESCRIBE THE
PRICES WHICH A DISTRIBUTOR MUST CHARGE FOR MILK SOLD TO THE UNITED
STATES, IT IS NOT APPLICABLE HERE.  LIKEWISE, BECAUSE FLORIDA REGULATES
ONLY PRODUCER PRICES APPLICABLE TO SALES MADE BY PRODUCERS TO THE
DISTRIBUTOR, NONE OF WHICH OCCUR ON MILITARY BASES, ITS LAW IS NOT
VULNERABLE AS AN ATTEMPT TO LEGISLATE WITH REGARD TO TRANSACTIONS
OCCURRING WITHIN FEDERAL ENCLAVES SUBJECT TO THE EXCLUSIVE JURISDICTION
OF THE UNITED STATES.  CF. STANDARD OIL V. CALIFORNIA, 291 U.S. 242,
AND JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134. 

HOWEVER, IN THE PAUL CASE THE UNITED STATES INITIALLY ATTACKED
CALIFORNIA'S PRODUCER PRICES, ALONG WITH ITS DISTRIBUTOR PRICES, AS IN
CONFLICT WITH FEDERAL PROCUREMENT REGULATIONS, AN ISSUE WHICH WAS
ABANDONED IN THIS COURT AND WHICH WAS EXPRESSLY SAVED IN THE COURT'S
OPINION.  IT IS THAT ISSUE WHICH POLAR NOW PRESENTS TO US. 

FOR GOOD REASON WE AGAIN PUT OFF DECISION OF THIS QUESTION TO ANOTHER
DAY.  AT THE OUTSET OF THIS LITIGATION, THE TRIAL COURT TEMPORARILY
ENJOINED THE APPLICATION TO POLAR OF A MILK COMMISSION ORDER
ESTABLISHING PRICES TO BE PAID FLORIDA PRODUCERS FOR MILK TO BE SOLD TO
MILITARY INSTALLATIONS AND REQUIRING PURCHASES OF SUCH MILK FROM
DESIGNATED PRODUCERS.  THAT ORDER, HOWEVER, WAS VOTED DOWN BY THE
PENSACOLA PRODUCERS, LEAVING CONSIDERABLE CONFUSION, AMPLY DEMONSTRATED
BY THE RECORD BEFORE US, CONCERNING THE STATUS OF SO-CALLED MILITARY
MILK UNDER THE OUTSTANDING ORDERS OF THE COMMISSION.  IT WOULD SEEM -
ALTHOUGH WE ARE NOT SURE, AND THERE WERE NO FINDINGS BELOW ABOUT THESE
MATTERS - THAT MILITARY MILK IS CLASS I MILK BUT THAT POLAR
NEVERTHELESS NEED NOT USE PENSACOLA MILK FOR MILITARY SALES AND IS FREE
TO PURCHASE OUT-OF-STATE MILK FOR THIS PURPOSE, ALTHOUGH IF IT DOES USE
MILK PURCHASED FROM ITS EARNED-BASE PRODUCERS, IT MUST PAY 61 CENTS PER
GALLON FOR IT.  IT WAS APPARENT FROM THE ORAL ARGUMENT THAT POLAR AND
THE COMMISSION WERE IN DISPUTE AS TO THE IMPACT OF THE EXISTING
REGULATIONS UPON MILITARY SALES, AND WE WOULD HESITATE TO ADJUDICATE
THE ISSUE TENDERED IN THE ABSENCE OF MORE HELPFUL TESTIMONY AND
ADDITIONAL CONSIDERATION OF THE MATTER IN THE COURT BELOW, PARTICULARLY
SINCE IT IS NOT AT ALL CLEAR THAT POLAR HAS BEEN USING PENSACOLA MILK
FOR ITS MILITARY SALES, OR EVEN THAT IT WANTS TO IN THE FUTURE.  IF IT
IS FREE TO UTILIZE OUTSIDE MILK, ACQUIRED AT WHATEVER PRICE, IT MAY NOT
WANT TO PURSUE THE MATTER AT ALL.  BESIDES, POLAR IS OBTAINING A
SUBSTANTIAL PERCENTAGE OF ITS TOTAL NEEDS FROM OUTSIDE THE STATE AND
THE PRODUCTION OF POLAR'S PENSACOLA PRODUCERS MAY BE WHOLLY EXHAUSTED
BY OTHER, NONMILITARY, USES TO WHICH IT MAY BE PUT. 

MOREOVER, CONSIDERATION OF THE POSSIBLE IMPACT OF PRODUCER-PRICING
SYSTEMS UPON FEDERAL PROCUREMENT REGULATIONS MAY BE PREMATURE AT THIS
TIME, IN VIEW OF OUR INVALIDATION OF OTHER PROVISIONS OF THE FLORIDA
LAW, PROVISIONS NOT ENTIRELY UNRELATED TO THE ISSUE OF MILITARY MILK. 
THE WHOLE PROBLEM OF MILITARY SALES MAY TAKE ON A DIFFERENT ASPECT UPON
REMAND OF THIS CASE. 

                                   IV. 

POLAR CHALLENGES THAT PROVISION OF THE FLORIDA MILK CONTROL ACT WHICH
IMPOSES A TAX IN THE AMOUNT OF 15/100 OF 1 CENT UPON EACH GALLON OF
MILK DISTRIBUTED BY A FLORIDA DISTRIBUTOR.  TO THE EXTENT THE
COMPUTATION OF THE TAX INCLUDES MILK WHICH IT SELLS TO FORT BENNING,
TYNDALL AIR FORCE BASE, AND THE PENSACOLA NAVAL AIR STATION, ALL BEING
FEDERAL ENCLAVES OVER WHICH THE UNITED STATES EXERCISES EXCLUSIVE
JURISDICTION, POLAR ARGUES THAT THE TAXING MEASURE IS INVALID AS BEYOND
THE JURISDICTION OF THE STATE TO IMPOSE.  WE DO NOT AGREE. 

POLAR'S RELIANCE ON JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, AND
STANDARD OIL V. CALIFORNIA, 291 U.S. 242, IS MISPLACED.  THE JAMES CASE
DEALT WITH A 2% GROSS RECEIPTS TAX LEVIED UPON EVERY PERSON ENGAGING IN
THE BUSINESS OF CONTRACTING WITHIN THE STATE, AS APPLIED TO A
CONTRACTOR UNDERTAKING CONSTRUCTION OF LOCKS AND DAMS FOR THE UNITED
STATES IN CERTAIN NAVIGABLE STREAMS.  THE COURT DENIED WEST VIRGINIA'S
JURISDICTION TO ASSESS A GROSS-RECEIPTS TAX WITH RESPECT TO WORK DONE
BY THE CONTRACTOR AT ITS PLANTS IN PENNSYLVANIA, AS WELL AS TO WORK
DONE WITHIN THE EXTERIOR LIMITS OF WEST VIRGINIA ON PROPERTY OVER WHICH
THE UNITED STATES HAD ACQUIRED EXCLUSIVE JURISDICTION.  IN STANDARD OIL
V. CALIFORNIA, CALIFORNIA UNDERTOOK TO LAY AN EXCISE TAX UPON EVERY
GASOLINE DISTRIBUTOR FOR EACH GALLON OF MOTOR VEHICLE FUEL "SOLD AND
DELIVERED BY HIM IN THIS STATE."  THE COURT FOUND THE TAX INVALID WHERE
BOTH SALE AND DELIVERY OCCURRED WITHIN THE BOUNDARIES OF THE PRESIDIO
OF SAN FRANCISCO, A FEDERAL ENCLAVE OVER WHICH THE UNITED STATES
EXERCISED EXCLUSIVE JURISDICTION. 

IN THESE CASES THE TAX WAS DEEMED TO FALL UPON THE FACILITIES OF THE
UNITED STATES OR UPON ACTIVITIES CONDUCTED WITHIN THESE FACILITIES, THE
PRINCIPLE OF BOTH CASES BEING THAT THERE WAS NOTHING OCCURRING WITHIN
THE STATE, BEYOND THE BORDERS OF THE FEDERAL ENCLAVE, TO WHICH THE TAX
COULD ATTACH.  CONTRARIWISE, THE FLORIDA TAX IS ON THE PRIVILEGE OF
ENGAGING IN THE BUSINESS OF DISTRIBUTING MILK OR ACTING AS A
DISTRIBUTOR; A DISTRIBUTOR IS DEFINED AS "ANY MILK DEALER WHO OPERATES
A MILK GATHERING STATION OR PROCESSING PLANT WHERE MILK IS COLLECTED
AND BOTTLED OR OTHERWISE PROCESSED AND PREPARED FOR SALE."  FLA. STAT.
SEC. 501.02.  THE INCIDENCE OF THE TAX APPEARS TO BE UPON THE ACTIVITY
OF PROCESSING OR BOTTLING MILK IN A PLANT LOCATED WITHIN FLORIDA, AND
NOT UPON WORK PERFORMED ON A FEDERAL ENCLAVE OR UPON THE SALE AND
DELIVERY OF MILK OCCURRING WITHIN THE BOUNDARIES OF FEDERAL PROPERTY. 
STANDARD OIL AND DRAVO DO NOT REACH THIS CASE, FOR THE ACTIVITY FLORIDA
TAXES - THE PROCESSING OR BOTTLING OF MILK - OCCURS AT POLAR'S PLANT
PRIOR TO THE SALE AND DELIVERY OF MILK TO THE GOVERNMENT.  (FN12) 

IT MAY BE URGED THAT A DISTRIBUTOR IS A DEALER (FN13) AND THAT A
DEALER IS ONE WHO SELLS MILK, INCLUDING ONE WHO SELLS TO AND UPON
FEDERAL ENCLAVES.  BUT EVEN SO, DISTRIBUTING HAS, BY DEFINITION, ITS
PROCESSING DIMENSION, A SUBSTANTIAL ACTIVITY OCCURRING WITHIN FLORIDA. 
THIS IS ENOUGH TO SUSTAIN THE TAX.  BESIDES, 4 U.S.C. SEC. 105, ENACTED
SUBSEQUENT TO JAMES AND STANDARD OIL, SUPRA, CONFERS UPON THE STATES
JURISDICTION TO LEVY AND COLLECT A SALES OR USE TAX "IN ANY FEDERAL
AREA," AND A SALES OR USE TAX IS DEFINED AS "ANY TAX LEVIED ON, WITH
RESPECT TO, OR MEASURED BY, SALES  ...  OF TANGIBLE PERSONAL PROPERTY
...  ."  4 U.S.C. SEC. 110.  WE THINK THIS PROVISION PROVIDES AMPLE
BASIS FOR FLORIDA TO LEVY A TAX MEASURED BY THE AMOUNT OF MILK POLAR
DISTRIBUTES MONTHLY, INCLUDING MILK SOLD TO THE UNITED STATES FOR USE
ON FEDERAL ENCLAVES IN FLORIDA.    THE JUDGMENT IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
IT IS SO ORDERED. 

FN1  CHAPTER 501 OF THE FLORIDA STATUTES ESTABLISHES A COMPREHENSIVE
SCHEME FOR REGULATION OF THE MILK INDUSTRY AND ESTABLISHES THE FLORIDA
MILK COMMISSION.  THE ACT EMPOWERS THE COMMISSION, INTER ALIA, TO
SUPERVISE AND REGULATE THE ENTIRE MILK INDUSTRY, INCLUDING THE
PRODUCTION, TRANSPORTATION, MANUFACTURE, STORAGE, DISTRIBUTION AND SALE
OF MILK, TO ESTABLISH MILK MARKETS WITHIN THE STATE, TO FIX PRICES TO
BE PAID PRODUCERS WITHIN A REGULATED MARKETING AREA BY DISTRIBUTORS,
MILK DEALERS AND PRODUCER-DISTRIBUTORS, AND GENERALLY TO ADOPT AND
ENFORCE ALL RULES, REGULATIONS, AND ORDERS NECESSARY TO CARRY OUT THE
PURPOSES OF THE ACT.  FLA. STAT. SEC. 501.04.  IN ADDITION THE
COMMISSION IS AUTHORIZED TO REVOKE OR SUSPEND THE LICENSE OF A MILK
DISTRIBUTOR OR DEALER WHEN SATISFIED THAT THE DEALER OR DISTRIBUTOR HAS
REJECTED OR REFUSED MILK DELIVERED BY A PRODUCER IN ORDINARY
CONTINUANCE OF A PREVIOUS COURSE OF DEALINGS OR WHEN SATISFIED THAT THE
DEALER OR DISTRIBUTOR HAS COMMITTED ANY ACT INJURIOUS TO THE PUBLIC
HEALTH OR PUBLIC WELFARE IN DEMORALIZATION OF THE PRICE STRUCTURE OF
PURE MILK TO SUCH AN EXTENT AS TO INTERFERE WITH AN AMPLE SUPPLY.  FLA.
STAT. SECS. 501.09(3)(A),(C).  BEFORE THE COMMISSION MAY EXERCISE ITS
SUPERVISORY AND REGULATORY POWERS IN ANY MARKETING AREA, HOWEVER, AT
LEAST 10% OF THE PRODUCERS IN THAT AREA MUST PETITION THE COMMISSION
FOR SUCH REGULATION AND A MAJORITY OF THE PRODUCERS IN THAT AREA MUST
VOTE IN FAVOR OF REGULATION.  FLA. STAT. SEC. 501.20(1). 

IN NOVEMBER 1961, THE DAIRY FARMERS PRODUCING MILK IN THE FOUR
WESTERNMOST FLORIDA COUNTIES, ESCAMBIA, SANTA ROSA, OKALOOSA AND
WALTON, VOTED TO PLACE THAT AREA UNDER THE CONTROL OF THE FLORIDA MILK
COMMISSION AND THEREBY SUBJECT TO THE PROVISIONS OF THE FLORIDA MILK
CONTROL ACT AND THE ORDERS ISSUED PURSUANT THERETO.  THEREUPON IN
JANUARY 1962, THE COMMISSION ISSUED A SERIES OF ORDERS COVERING THE
FOUR-COUNTY AREA, TERMED THE PENSACOLA MILK MARKETING AREA, AND A
LETTER TO POLAR ICE CREAM & CREAMERY CO. SPECIFYING ITS OBLIGATIONS
UNDER THE NEWLY IMPOSED REGULATORY STRUCTURE.  IN AUGUST 1962, THE
COMMISSION ISSUED OTHER ORDERS AND RULES FURTHER IMPLEMENTING AND
DEFINING THE EARNED-BASE ALLOCATION PLAN CHALLENGED HEREIN. 

FN2  THE MINIMUM PRICE ESTABLISHED IN OFFICIAL ORDER PEN-4, JANUARY
18, 1962, FOR THE PENSACOLA AREA FOR CLASS II MILK WAS 1 CENT PER
GALLON LESS THAN THE MINIMUM PRICE ESTABLISHED FOR THIS CLASS MILK IN
THE MIAMI, FLORIDA, FEDERAL MILK MARKETING ORDER, NO. 118, AND FOR
CLASS III MILK WAS 26 CENTS PER GALLON.  THERE WAS NO PRICE SET FOR
CLASS IV UTILIZATION IN THIS ORDER.  OFFICIAL ORDER NO. 20-29, COVERING
ALL REGULATED MARKETING AREAS IN FLORIDA, EFFECTIVE MARCH 4, 1962,
RETAINED THE 61 CENTS PER GALLON MINIMUM ON CLASS I MILK, AND ADOPTED
THE MONTHLY PRICES IN THE MIAMI, FLORIDA, FEDERAL MILK MARKETING ORDER,
LESS 1 CENT PER GALLON, FOR CLASS II, III AND IV MILK.  ALL OF THE
ABOVE PRICES ARE SUBJECT TO MINOR ADJUSTMENTS FOR VARIATIONS FROM THE
4% AVERAGE BUTTERFAT CONTENT OF THE MILK DISTRIBUTED IN EACH CLASS. 

CLASSES OF MILK ARE DEFINED AS FOLLOWS IN OFFICIAL ORDER NO. 20-28:
"IT IS HEREBY ORDERED THAT: 

"1.  CLASS I MILK IS HEREBY DEFINED AS ALL FLUID MILK OR MILK
PRODUCTS SOLD IN FLUID FORM WITH THE EXCEPTION OF BUTTERMILK, CHOCOLATE
DRINK AND CREAM. 

     * *         *         *         * 

2.  CLASS II MILK SHALL BE ALL SKIM MILK AND BUTTERFAT: 

"(A)  USED TO PRODUCE ACIDOPHILUS MILK, BUTTERMILK, CHOCOLATE DRINK,
HALF AND HALF, LIGHT CREAM, HEAVY CREAM AND SOUR CREAM, AND: 

"(B)  CONTAINED IN INVENTORIES IN THE FORM OF MILK PRODUCTS
DESIGNATED AS CLASS I MILK PURSUANT TO PARAGRAPH (1) OF THIS SECTION ON
HAND AT THE END OF EACH MONTH AND ACCOUNTING PERIOD; PROVIDED, THAT
CLASS II CLASSIFICATION OF SHRINKAGE PRORATED TO SKIM AND BUTTERFAT,
RESPECTIVELY, IN PRODUCER MILK SHALL NOT EXCEED TWO PER CENT (2%) OF
SKIM AND BUTTERFAT IN PRODUCER MILK. 

"3.  CLASS III MILK SHALL BE ALL SKIM MILK AND BUTTERFAT: 

"(A)  USED TO PRODUCE ANY PRODUCT OTHER THAN THOSE SPECIFIED IN
PARAGRAPHS (1) AND (2) OF THIS SECTION: 

"(B)  THAT PORTION OF FORTIFIED MILK OR SKIM MILK NOT CLASSIFIED AS
CLASS I MILK PURSUANT TO SUBPARAGRAPH (1)(A) OF THIS SECTION, AND: 

"(C)  IN TOTAL SHRINKAGE OF SKIM MILK AND BUTTERFAT, RESPECTIVELY,
SUCH SHRINKAGE TO BE PRORATED TO PRODUCER MILK AND OTHER SOURCE MILK
RECEIVED IN THE FORM OF FLUID MILK OR SKIM MILK. 

"4.  CLASS IV MILK SHALL BE ALL MILK THE SKIM PORTION OF WHICH IS: 

"(A)  DISPOSED OF FOR FERTILIZER OR LIVESTOCK FEED, AND: 

"(B)  DUMPED AFTER SUCH PRIOR NOTIFICATION AS THE COMMISSION
ADMINISTRATOR MAY REQUIRE." 

FN3  MILK UTILIZED BY THE CONSUMER IN FLUID FORM, BEVERAGE MILK,
COMMANDS A SUBSTANTIALLY HIGHER PRICE THAN MILK OF THE IDENTICAL
QUALITY WHICH IS USED TO MAKE MANUFACTURED MILK PRODUCTS, SUCH AS
BUTTER, CHEESE, ICE CREAM AND SO FORTH.  ACCORDINGLY THE PROCESSOR OR
DISTRIBUTOR OF MILK IS ABLE TO PAY THE PRODUCER A HIGHER PRICE FOR MILK
WHICH IS SOLD IN FLUID FORM FOR HUMAN CONSUMPTION, AND MOST MILK
PRICING SYSTEMS REQUIRE MILK TO BE CLASSIFIED ACCORDING TO USE.  SEE
LEHIGH VALLEY COOP.  V. UNITED STATES, 370 U.S. 76, 79.  THE MILK
INDUSTRY GENERALLY MAINTAINS A RESERVE TO MEET THE CHANGING DEMANDS FOR
BEVERAGE MILK.  SINCE THE SUPPLY OF MILK IS GREATER THAN THE DEMANDS OF
THE FLUID MILK MARKET, THE EXCESS, REFERRED TO AS SURPLUS MILK, MUST BE
CHANNELED TO THE LESS-DESIRABLE, LOWER-PRICED OUTLETS.  THIS EXPLAINS
HOW POLAR IS ABLE TO PURCHASE MILK IN ALABAMA AND OTHER STATES FOR AS
LOW AS 30 AND 35 CENTS PER GALLON AND HOW POLAR WAS ABLE TO PAY ITS
PRODUCERS, PRIOR TO REGULATION, AS HIGH AS 61 CENTS PER GALLON FOR A
SPECIFIED QUANTITY OF MILK. 

WHERE A DISTRIBUTOR SELLS MILK IN BOTH FLUID AND MANUFACTURED FORMS,
PROBLEMS OF ALLOCATION ARISE.   UNDER FEDERAL MILK MARKETING ORDERS
ESTABLISHING MARKETWIDE POOLS, THE TOTAL PROCEEDS RECEIVED FROM THE
SALE OF MILK BY REGULATED HANDLERS OR DISTRIBUTORS ARE POOLED.  A
"BLEND" OR AVERAGE PRICE IS CALCULATED BY MULTIPLYING THE "POOL" MILK
DISPOSED OF IN EACH CLASS BY THE ESTABLISHED MINIMUM PRICES FOR EACH
CLASS, WITH SOME FURTHER ADJUSTMENTS NOT PERTINENT HERE.  SEE LEHIGH
VALLEY COOP., SUPRA, AT 80.  THE "BLEND" PRICE IS THEN DIVIDED AMONG
THE PRODUCERS ACCORDING TO THE AMOUNT OF MILK EACH PRODUCER SELLS,
REGARDLESS OF THE USE TO WHICH HIS MILK IS ACTUALLY PUT.  THE BLEND
PRICE THUS REPRESENTS AN AVERAGE BASED UPON THE COMBINED USE OF ALL
REGULATED MILK WITHIN A MARKETING AREA. 

FN4  UNTIL THE FLORIDA MILK COMMISSION'S RULE 220-1.05 WAS
PROMULGATED ON AUGUST 24, 1962, THE APPLICABILITY OF THE ALLOCATION
PROVISION TO MILK UTILIZED IN LESS THAN CLASS I CHANNELS WAS UNCLEAR. 
THE COMMISSION'S LETTER OF JANUARY 25, 1962, TO POLAR'S EARNED-BASE
PRODUCERS, ASSIGNING THEM BASES FOR 1962, SPECIFIED THAT THE BASES
ENTITLED THEM TO THAT PERCENTAGE OF POLAR'S CLASS I MILK SALES EACH
MONTH, WITHOUT REFERRING TO CLASS II, III OR IV UTILIZATIONS.  THE
TOTAL OF THE PERCENTAGES ASSIGNED TO THESE 26 PRODUCERS WAS 100%, THUS
ENTITLING THEM COLLECTIVELY TO ALL OF POLAR'S CLASS I SALES FOR 1962. 

RULE 220-1.05(6) PROVIDES: 

"BASE PERCENTAGE; COMPUTATION AND APPLICATION. 

"(A)  DURING THE BASE FIXING PERIOD, A BASE PERCENTAGE SHALL BE
DETERMINED FOR EACH PRODUCER BY CALCULATING THE RATIO OF THE MILK
DELIVERED BY EACH PRODUCER TO THE TOTAL MILK DELIVERED BY ALL PRODUCERS
FOR THE ENTIRE BASE FIXING PERIOD, WHICH PERCENTAGE IS REFERRED TO
HEREIN AS 'EARNED BASE.'  THIS COMPUTATION SHALL BE MADE IMMEDIATELY
FOLLOWING THE CLOSE OF THE BASE FIXING PERIOD, AND WITHIN THIRTY (30)
DAYS THEREAFTER, EACH PRODUCER SHALL BE NOTIFIED BY MAIL OF HIS BASE
PERCENTAGE AND THE BASE PERCENTAGE OF ALL OTHER PRODUCERS PARTICIPATING
IN THAT PARTICULAR BASE.  DURING THIS PERIOD, EACH PLANT SHALL SUPPLY
THE LOCAL DEPUTY ADMINISTRATOR WITH A SUMMARY OF ITS BASE
COMPUTATIONS.  THE PRODUCER NOTIFICATION MUST ILLUSTRATE HOW THE BASE
PERCENTAGE FOR THE PRODUCER CONCERNED HAS BEEN DETERMINED. 

"1.  THE BASE PERCENTAGE EARNED BY EACH PRODUCER SHALL BE APPLIED TO
THE TOTAL NUMBER OF GALLONS OF MILK UTILIZED IN CLASS I CHANNELS BY
EACH DISTRIBUTOR AND PRODUCER-DISTRIBUTOR TO DETERMINE THE NUMBER OF
GALLONS OF MILK FOR WHICH THE PRODUCER MUST BE PAID AT THE CLASS I
PRICE FIXED BY THE COMMISSION.  IN CASE A PRODUCER FAILS TO PRODUCE THE
AMOUNT OF MILK THAT HIS 'EARNED BASE' ENTITLES HIM TO, IN CLASS I
CHANNELS, SUCH DEFICIT MUST BE REALLOCATED TO THE OTHER 'EARNED BASE'
PRODUCERS IN PROPORTION TO THEIR 'EARNED BASES,' AND THE CLASS I PRICE
PAID FOR THE MILK SO REALLOCATED. 

"2.  THE METHOD OUTLINED ABOVE FOR COMPUTING ALLOCATIONS TO CLASS I
UTILIZATION SHALL BE FOLLOWED IN COMPUTING ALLOCATIONS FOR ALL OTHER
CLASSES. 

"3.  FIRST ALLOCATION OF A PRODUCER'S DELIVERIES SHALL BE TO CLASS I
UTILIZATION, WITH ALLOCATION CONTINUED THEREAFTER IN DESCENDING ORDER
OF PRICE THROUGH CLASS IV CLASSIFICATION.  THE BALANCE OF ANY
PRODUCER'S PRODUCTION AFTER THE ABOVE ALLOCATIONS MAY THEN BE PLACED IN
THE LOWEST PRICE CLASSIFICATION. 

"4.  IN COMPUTING CLASS I SALES TO BE ALLOCATED TO PRODUCERS, NO
ADJUSTMENT SHALL BE MADE FOR MILK RECEIVED BY DISTRIBUTORS AND/OR
PRODUCER-DISTRIBUTORS FROM SOURCES OTHER THAN 'EARNED BASE'
PRODUCERS." 

FN5  SECTION 501.05(3) PROVIDES: 

"THE RELATIONSHIP BETWEEN A PRODUCER AND A DISTRIBUTOR, UNDER WHICH
MILK PRODUCED BY THE PRODUCER IS REGULARLY DELIVERED TO AND ACCEPTED BY
THE DISTRIBUTOR, WHEN ONCE ESTABLISHED, SHALL NOT BE TERMINATED EITHER
BY THE PRODUCER OR BY THE DISTRIBUTOR WITHOUT JUST CAUSE THEREFOR, AND
THE APPROVAL OF THE COMMISSION.  JUST CAUSE WILL BE CONSIDERED BY THE
COMMISSION AS ANY CAUSE DEEMED JUST BY A PRUDENT AND REASONABLE MAN." 

LICENSE  ...  OR REVOKE A LICENSE  ...  WHEN SATISFIED OF THE EXISTENCE
OF ANY OF THE FOLLOWING  ...  . 

"(A)  THAT A MILK DEALER HAS REJECTED, WITHOUT REASONABLE CAUSE, ANY
MILK DELIVERED TO AND ACCEPTED BY THE MILK DEALER FROM A PRODUCER
DELIVERED BY OR ON BEHALF OF THE PRODUCER IN ORDINARY CONTINUANCE OF A
PREVIOUS COURSE OF DEALING, OR THAT A MILK DEALER HAS REJECTED WITHOUT
REASONABLE CAUSE, OR HAS REJECTED WITHOUT REASONABLE ADVANCE NOTICE,
ANY MILK TENDERED OR OFFERED FOR DELIVERY TO THE MILK DEALER BY OR ON
BEHALF OF A PRODUCER IN ORDINARY CONTINUANCE OF A PREVIOUS COURSE OF
DEALING.  IT IS INTENDED HEREBY TO PROVIDE AND REQUIRE THAT A MILK
DEALER SHALL NOT REJECT OR REFUSE TO ACCEPT ANY MILK TENDERED OR
OFFERED FOR DELIVERY BY OR ON BEHALF OF A PRODUCER IN ORDINARY
CONTINUANCE OF A PREVIOUS COURSE OF DEALING UNLESS THERE EXISTS
REASONABLE CAUSE FOR THE REJECTION OR REFUSAL TO ACCEPT SUCH MILK AND
UNLESS THE MILK DEALER HAS ALSO GIVEN  ...  ADVANCE NOTICE  ... ." 

FN6  IN BORDEN CO. V. ODHAM, 121 SO. 2D 625, THE FLORIDA SUPREME
COURT UPHELD THE COMMISSION'S POWER TO APPLY THE PERCENTAGE ALLOCATION
PROVISIONS TO CLASS II AND III AS WELL AS CLASS I MILK AND TO REQUIRE A
DISTRIBUTOR TO ACCEPT MILK IN EXCESS OF CLASS I REQUIREMENTS, SO LONG
AS THE COMMISSION ACTED REASONABLY.  HOWEVER, SINCE THE STATUTE AT THAT
TIME ONLY REQUIRED REASONABLE NOTICE FOR A REFUSAL OF MILK DELIVERED IN
THE ORDINARY COURSE OF DEALINGS BETWEEN A DISTRIBUTOR AND PRODUCER, THE
COURT HELD THAT THE COMMISSION'S ADDITIONAL REQUIREMENT OF JUST CAUSE
WAS BEYOND ITS AUTHORITY.  THE STATUTE, NOTE 5, SUPRA, HAS SUBSEQUENTLY
BEEN AMENDED TO REQUIRE BOTH JUST CAUSE AND REASONABLE NOTICE BEFORE
REFUSAL OR REJECTION OF MILK DELIVERED BY AN EARNED-BASE PRODUCER IS
PERMISSIBLE. 

IN FLORIDA DAIRY, INC., V. FLORIDA MILK COMM'N, 149 SO. 2D 867, A
MILK DISTRIBUTOR SOUGHT TO TERMINATE ITS RELATIONSHIP WITH PRODUCERS ON
THE GROUND THAT IT COULD PRODUCE ITS OWN MILK AT A LOWER PRICE THAN
THAT PAID TO PRODUCERS AND THAT THE REQUIRED PRICES RENDERED THE
DISTRIBUTOR UNABLE TO MEET THE COMPETITION FROM PRODUCER-DISTRIBUTORS
IN ITS AREA.  THE COMMISSION'S FINDING THAT JUST CAUSE WAS NOT MET BY
THIS SHOWING BECAUSE OF THE INJURY TO PRODUCERS THAT WOULD RESULT FROM
THE TERMINATION AND THE CONSEQUENT LOSS OF BUSINESS WAS UPHELD.  SEE
FOREMOST DAIRIES V. ODHAM, 121 SO. 2D 636, UPHOLDING OVER COMMERCE
CLAUSE OBJECTIONS A COMMISSION ORDER PROVIDING FOR AN ANNUAL BASE
FIXING PERIOD AND PROVIDING THAT BASE PERCENTAGES EARNED BY EACH
PRODUCER ARE APPLICABLE TO ALL CLASSES OF MILK. 

MR. E.V. FISHER, ADMINISTRATOR OF THE FLORIDA MILK COMMISSION,
TESTIFIED BELOW THAT POLAR IS REQUIRED TO ACCEPT ALL THE MILK PRODUCED
AND TENDERED BY POLAR'S EARNED-BASE PRODUCERS, AND THAT REFUSAL OF ANY
MILK TENDERED WITHOUT JUST CAUSE IS GROUND FOR A SHOW-CAUSE ORDER AND
DISCIPLINARY PROCEEDINGS.  AND SEE RULE 220-1.05(4),(6). 

OFFICIAL ORDER PEN-2, HOWEVER, PROVIDES THAT AN EARNED-BASE PRODUCER
WHO DELIVERS MILK IN EXCESS OF CLASS I NEEDS DURING THE BASE-FIXING
PERIOD MAY HAVE HIS SUBSEQUENT EARNED-BASE REDUCED; THIS ORDER IS TO
DISCOURAGE PENSACOLA PRODUCERS FROM INCREASING THEIR PRODUCTION TO THE
POINT OF SUPPLYING SURPLUS MILK, DEFINED AS MILK IN EXCESS OF CLASS I
NEEDS. 

FN7  IN THE COURT BELOW AND IN THE JURISDICTIONAL STATEMENT FILED
WITH THIS COURT, POLAR ALSO OBJECTED THAT THIS REGULATORY STRUCTURE
VIOLATED THE DUE PROCESS AND EQUAL PROTECTION OF THE LAWS PROVISIONS OF
THE FOURTEENTH AMENDMENT.  HOWEVER, POLAR HAS NOT PURSUED THESE ISSUES
IN ITS BRIEF OR ARGUMENT BEFORE THIS COURT.  THEY APPEAR ON THEIR FACE
TO BE WITHOUT MERIT, AND, IN ANY CASE, OUR RESOLUTION OF THE OTHER
CLAIMS ASSERTED RENDERS A DECISION ON THESE ISSUES UNNECESSARY. 

FN8  FLA. STAT. SECS. 501.09(4)(B), 501.09(8): 

"FOR THE PRIVILEGE OF CONTINUING IN OR ENGAGING IN THE BUSINESS OF
DISTRIBUTING MILK OR ACTING AS A DISTRIBUTOR UNDER THE PROVISIONS OF
THIS CHAPTER, THERE IS IMPOSED UPON EVERY DISTRIBUTOR A TAX IN AN
AMOUNT EQUAL TO FIFTEEN-ONE HUNDREDTHS OF ONE CENT UPON EACH GALLON OF
MILK DISTRIBUTED BY EACH DISTRIBUTOR DURING EACH CALENDAR MONTH.  THE
AMOUNT OF SUCH TAX SHALL BE REMITTED BY EACH DISTRIBUTOR TO THE
COMMISSION AT THE TIME THAT THE MONTHLY REPORTS ARE REQUIRED TO BE
FILED BY THE DISTRIBUTOR WITH THE COMMISSION AS PROVIDED BY THIS
CHAPTER."    "IF AT ANY TIME DURING A FISCAL YEAR THE REVENUES RECEIVED
BY THE COMMISSION UNDER THIS CHAPTER EXCEED BY AT LEAST TWENTY-FIVE PER
CENT THE TOTAL AMOUNT OF EXPENDITURES AS BUDGETED BY THE COMMISSION FOR
THAT FISCAL YEAR, THE PAYMENT OF TAXES PROVIDED FOR IN THIS SUBSECTION,
AND IN SEC. 501.09(4), ON MILK DISTRIBUTED BY DISTRIBUTORS, WILL BE
DISCONTINUED AND SUCH TAXES ARE NOT IMPOSED FOR THE CALENDAR MONTHS
REMAINING IN THAT FISCAL YEAR COMMENCING WITH THE FIRST CALENDAR MONTH
FOLLOWING THE TIME WHEN SUCH REVENUES SO COLLECTED EXCEED BY AT LEAST
TWENTY-FIVE PER CENT THE TOTAL AMOUNT OF EXPENDITURES SO BUDGETED FOR
THAT FISCAL YEAR." 

FN9  IN RESPONSE TO THE ARGUMENT THAT NEW YORK'S PRICE REQUIREMENTS
WERE NECESSARY TO ENHANCE THE ECONOMIC WELFARE OF VERMONT FARMERS AND
THEREBY ENSURE THEIR OBSERVANCE OF SANITARY AND HEALTH REQUIREMENTS,
THE COURT STATED THAT "THE EVILS SPRINGING FROM UNCARED FOR CATTLE MUST
BE REMEDIED BY MEASURES OF REPRESSION MORE DIRECT AND CERTAIN THAN THE
CREATION OF A PARITY OF PRICES BETWEEN NEW YORK AND OTHER STATES  ...
. WHATEVER RELATION THERE MAY BE BETWEEN EARNINGS AND SANITATION IS TOO
REMOTE AND INDIRECT TO JUSTIFY OBSTRUCTIONS TO THE NORMAL FLOW OF
COMMERCE IN ITS MOVEMENT BETWEEN STATES."  294 U.S. AT 524.  SEE DEAN
MILK CO. V. MADISON, 340 U.S. 349, WHERE A PURPORTED LOCAL HEALTH
MEASURE WAS INVALIDATED BECAUSE REASONABLE NONDISCRIMINATORY
ALTERNATIVES, ADEQUATE TO CONSERVE AND PROTECT LOCAL INTERESTS, WERE
AVAILABLE. 

FN10  THE FLORIDA MILK COMMISSION HAS INFORMED US THAT FLORIDA
PRODUCERS WOULD OPERATE AT A LOSS UNLESS A PROPORTION OF THEIR SALES OF
MILK WERE PUT TO CLASS I USE AND THAT THEREIN LIES THE PURPOSE OF THE
CLASS I PURCHASE AND ALLOCATION REQUIREMENT.  WE DO NOT SEE WHY THE
SITUATION IS DIFFERENT FOR NON-FLORIDA PRODUCERS. 

FN11  A RECENT STUDY OF MOVEMENT PATTERNS OF FLUID MILK AND MILK
PRODUCTS IN THE SOUTHEASTERN STATES INDICATES THAT THE QUANTITY OF
FLUID MILK AND OTHER PRODUCTS FROM GRADE A MILK MOVING ACROSS STATE
LINES WITHIN THIS AREA WAS RELATIVELY SMALL, AND THAT AMONG SIX STATES
IN THE AREA, NORTH CAROLINA, SOUTH CAROLINA, GEORGIA, ALABAMA,
TENNESSEE AND FLORIDA, FLORIDA HAD BY FAR THE HIGHEST PERCENTAGE OF
FLUID MILK AND MILK PRODUCTS DISTRIBUTED IN THE SAME AREAS AS
PROCESSED.  THIS PERCENTAGE WAS 95%.  CARLEY AND PURCELL, MILK MOVEMENT
PATTERNS IN THE SOUTHEAST, 44 (SO. COOP.  SERIES, BULL.  84, APRIL
1962). 

ANOTHER STUDY DURING SAMPLE MONTHS OF 1959 SHOWS THAT FLORIDA
PRODUCERS SUPPLIED 99.3% OF THE MARKET FOR FLUID MILK IN FLORIDA; FOR
ALL MARKETS, LOCAL PRODUCER SHIPMENTS WERE IN EXCESS OF 90% OF TOTAL
MILK SUPPLIES RECEIVED AND THAT THE REMAINDER IN EACH AREA WAS OBTAINED
FROM SOURCES LOCATED IN OTHER FLORIDA MARKETS.  ONLY IN NORTHWEST
FLORIDA DID RECEIPTS FROM OTHER STATES AMOUNT TO 2.6% OF SUPPLIES.  IN
NO OTHER AREA WAS THIS AMOUNT ABOVE 1% OF TOTAL RECEIPTS.  R.E.L.
GREENE AND H.W. WURBURTON, AN ECONOMIC EVALUATION OF FLUID MILK SUPPLY,
MOVEMENT AND UTILIZATION IN FLORIDA, 61 (DEPT. OF AGRICULTURAL
ECONOMICS, FLA.  AGRICULTURAL EXPERIMENT STATION). 

FN12  IT MAY BE THAT THE ECONOMIC BURDEN OF THE TAX ULTIMATELY FALLS
UPON PURCHASERS OF POLAR'S MILK, INCLUDING THE UNITED STATES. 
DECISIONS OF THIS COURT MAKE CLEAR, HOWEVER, THAT THE FACT THAT THE
ECONOMIC BURDEN OF A TAX MAY FALL ON THE GOVERNMENT IS NOT
DETERMINATIVE OF THE VALIDITY OF THE TAX.  AS WAS SAID IN RESPECT TO A
SALES TAX APPLIED TO MATERIALS, THE COST OF WHICH THE GOVERNMENT WAS
OBLIGED TO PAY: 

"THE GOVERNMENT, RIGHTLY WE THINK, DISCLAIMS ANY CONTENTION THAT THE
CONSTITUTION, UNAIDED BY CONGRESSIONAL LEGISLATION, PROHIBITS A TAX
EXACTED FROM THE CONTRACTORS MERELY BECAUSE IT IS PASSED ON
ECONOMICALLY, BY THE TERMS OF THE CONTRACT OR OTHERWISE, AS A PART OF
THE CONSTRUCTION COST TO THE GOVERNMENT.  SO FAR AS A NON
DISCRIMINATORY STATE TAX UPON THE CONTRACTOR ENTERS INTO THE COST OF
THE MATERIALS TO THE GOVERNMENT, THAT IS BUT A NORMAL INCIDENT OF THE
ORGANIZATION WITHIN THE SAME TERRITORY OF TWO INDEPENDENT TAXING
SOVEREIGNTIES.  THE ASSERTED RIGHT OF THE ONE TO BE FREE OF TAXATION BY
THE OTHER DOES NOT SPELL IMMUNITY FROM PAYING THE ADDED COSTS,
ATTRIBUTABLE TO THE TAXATION OF THOSE WHO FURNISH SUPPLIES TO THE
GOVERNMENT AND WHO HAVE BEEN GRANTED NO TAX IMMUNITY."   ALABAMA V.
KING & BOOZER, 314 U.S. 1, 8-9. 

FN13  FLA. STAT. SEC. 501.02 PROVIDES: 

"'MILK DEALER' MEANS ANY PERSON WHO PURCHASES OR HANDLES MILK WITHIN
THE STATE, FOR SALE IN THIS STATE, OR SELLS MILK WITHIN THE STATE IN
ANY MARKET AS DEFINED IN THIS CHAPTER.  EACH CORPORATION WHICH IF A
NUTURAL PERSON WOULD BE A MILK DEALER WITHIN THE MEANING OF THIS
CHAPTER, AND ANY SUBSIDIARY OF SUCH CORPORATION, SHALL BE DEEMED A MILK
DEALER WITHIN THE MEANING OF THIS DEFINITION.   A PRODUCER WHO DELIVERS
MILK ONLY TO A MILK DEALER SHALL NOT BE DEEMED A MILK DEALER." 
..END :





THOMPSON V. IMMIGRATION AND NATURALIZATION SERVICE 375 U.S. 384 


NO. 496.  DECIDED JANUARY, 6, 1964.  - CERTIORARI GRANTED; 318 F.2D 681,
JUDGMENT VACATED AND CASE REMANDED. 


TWELVE DAYS AFTER THE DISTRICT COURT ENTERED A FINAL ORDER DENYING HIS
PETITION FOR NATURALIZATION, PETITIONER SERVED NOTICE THAT HE WOULD
FILE MOTIONS TO AMEND CERTAIN FINDINGS OF FACT AND FOR A NEW TRIAL. 
THE GOVERNMENT DID NOT OBJECT TO THE TIMELINESS OF THE MOTIONS AND THE
TRIAL JUDGE DECLARED THE MOTION FOR A NEW TRIAL WAS MADE "IN AMPLE
TIME."  THE MOTIONS WERE LATER DENIED AND AN APPEAL WAS FILED WITHIN 60
DAYS THEREAFTER, BUT MORE THAN 60 DAYS FROM THE ENTRY OF JUDGMENT.  THE
COURT OF APPEALS DISMISSED THE APPEAL SINCE IT WAS FILED OUTSIDE OF THE
LIMIT OF 60 DAYS AFTER ENTRY OF JUDGMENT PRESCRIBED IN RULE 73(A) OF
THE FEDERAL RULES OF CIVIL PROCEDURE.  THE TIME WAS NOT CONSIDERED
TOLLED BY THE MOTIONS SINCE THEY WERE THEMSELVES UNTIMELY HAVING BEEN
FILED MORE THAN 10 DAYS AFTER THE FINAL ORDER.  HELD:  IN VIEW OF
PETITIONER'S RELIANCE ON THE DISTRICT COURT'S STATEMENT THAT HIS
MOTIONS WERE TIMELY FILED, THUS POSTPONING THE TIME TO FILE AN APPEAL,
HE SHOULD HAVE A HEARING ON THE MERITS.  HARRIS TRUCK LINES, INC., V.
CHERRY MEAT PACKERS, INC., 371 U.S. 215, FOLLOWED. 

THOMPSON V. IMMIGRATION AND NATURALIZATION SERVICE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

PETITIONER, A NATIVE AND NATIONAL OF CANADA, FILED A PETITION FOR
NATURALIZATION UNDER THE PROVISIONS OF SEC. 310(B) OF THE NATIONALITY
ACT OF 1940, 8 U.S.C. (1946 ED.)  SEC.  710(B), NOW 8 U.S.C. SEC.
1430.  ON APRIL 18, 1962, THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS ENTERED A FINAL ORDER DENYING THE
PETITION ON THE GROUND THAT PETITIONER HAD FAILED TO ESTABLISH HIS
ATTACHMENT TO THE UNITED STATES CONSTITUTION.  TWELVE DAYS LATER, ON
APRIL 30, 1962, PETITIONER SERVED NOTICE ON THE IMMIGRATION AND
NATURALIZATION SERVICE THAT HE WOULD APPEAR BEFORE THE TRIAL JUDGE ON
MAY 2, 1962, WITH POST-TRIAL MOTIONS "TO AMEND CERTAIN FINDINGS OF FACT
PURSUANT TO RULE 52 F.R.C.P. AND FOR A NEW TRIAL PURSUANT TO RULE 59
F.R.C.P."  THE GOVERNMENT RAISED NO OBJECTION AS TO THE TIMELINESS OF
THESE MOTIONS, AND THE TRIAL COURT SPECIFICALLY DECLARED THAT THE
"MOTION FOR A NEW TRIAL" WAS MADE "IN AMPLE TIME."  ON OCTOBER 16,
1962, THESE MOTIONS WERE DENIED.  ON DECEMBER 6, 1962, WITHIN 60 DAYS
OF THE DENIAL OF THE POST-TRIAL MOTIONS BUT NOT WITHIN 60 DAYS OF THE
ORIGINAL ENTRY OF JUDGMENT BY THE DISTRICT COURT, PETITIONER FILED A
NOTICE OF APPEAL.  THE GOVERNMENT THEN MOVED IN THE COURT OF APPEALS TO
DISMISS THE APPEAL ON THE GROUND THAT NOTICE OF APPEAL HAD NOT BEEN
FILED WITHIN THE 60-DAY PERIOD PRESCRIBED BY RULE 73(A) OF THE FEDERAL
RULES OF CIVIL PROCEDURE AND THAT PETITIONER'S POST-TRIAL MOTIONS WERE
UNTIMELY AND HENCE DID NOT TOLL THE RUNNING OF THE TIME FOR APPEAL. 
THE COURT OF APPEALS GRANTED THE MOTIONS.  PETITIONER NOW SEEKS REVIEW
BY CERTIORARI OF THE DISMISSAL OF HIS APPEAL. 

RULE 73(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE DESIGNATES "THE
TIME WITHIN WHICH AN APPEAL MAY BE TAKEN" IN THIS TYPE OF CASE AS "60
DAYS" FROM "THE ENTRY OF THE JUDGMENT APPEALED FROM  ...  ."  THE RULE
ALSO DECLARES THAT: 

"THE FULL TIME FOR APPEAL FIXED IN THIS SUBDIVISION COMMENCES TO RUN
AND IS TO BE COMPUTED FROM THE ENTRY OF ANY OF THE FOLLOWING ORDERS
MADE UPON A TIMELY MOTION UNDER SUCH RULES:  ...  GRANTING OR DENYING A
MOTION UNDER RULE 52(B) TO AMEND OR MAKE ADDITIONAL FINDINGS OF FACT
...; OR GRANTING OR DENYING A MOTION UNDER RULE 59 TO ALTER OR AMEND
THE JUDGMENT; OR DENYING A MOTION FOR A NEW TRIAL UNDER RULE 59." 

IT IS CLEAR THAT IF PETITIONER'S POST-TRIAL MOTIONS WERE "TIMELY,"
THEN THE APPEAL, WHICH WAS FILED WITHIN 60 DAYS OF THE DISPOSITION OF
THE MOTIONS, WAS TIMELY.  THE GOVERNMENT ALLEGES, HOWEVER, THAT THE
POST-TRIAL MOTIONS WERE NOT TIMELY SINCE THE APPLICABLE RULES PROVIDE
THAT THEY MUST BE "SERVED NOT LATER THAN 10 DAYS AFTER THE ENTRY OF THE
JUDGMENT," AND THESE MOTIONS WERE SERVED 12 DAYS AFTER THE ENTRY OF
JUDGMENT.  THE GOVERNMENT CONCLUDES, THEREFORE, THAT SINCE THERE WAS NO
"TIMELY MOTION" UNDER THE RULES DESIGNATED IN RULE 73(A), THE APPEAL
MUST BE, BUT WAS NOT, FILED WITHIN 60 DAYS OF THE ENTRY OF THE ORIGINAL
JUDGMENT. 

ALTHOUGH PETITIONER ADMITS THAT THE POST-TRIAL MOTIONS WERE NOT
SERVED UNTIL 12 DAYS AFTER THE ENTRY OF JUDGMENT, HE CLAIMS THAT THEY
SHOULD BE DEEMED TIMELY SINCE THEY WERE SERVED 10 DAYS "FROM RECEIPT OF
NOTICE OF ENTRY OF THE JUDGMENT" BY HIS LAWYERS WHO WERE NOT IN COURT
ON THE DAY THE JUDGMENT WAS ENTERED.  HE CLAIMS, MOREOVER, THAT HE
RELIED ON THE GOVERNMENT'S FAILURE TO RAISE A CLAIM OF UNTIMELINESS
WHEN THE MOTIONS WERE FILED AND ON THE DISTRICT COURT'S EXPLICIT
STATEMENT THAT THE MOTION FOR A NEW TRIAL WAS MADE "IN AMPLE TIME"; FOR
IF ANY QUESTION HAD BEEN RAISED ABOUT THE TIMELINESS OF THE MOTIONS AT
THAT JUNCTURE, PETITIONER COULD HAVE, AND PRESUMABLY WOULD HAVE, FILED
THE APPEAL WITHIN 60 DAYS OF THE ENTRY OF THE ORIGINAL JUDGMENT, RATHER
THAN WAITING, AS HE DID, UNTIL AFTER THE TRIAL COURT HAD DISPOSED OF
THE POST-TRIAL MOTIONS. 

IN A RECENT CASE INVOLVING A CLOSELY RELATED ISSUE, WE RECOGNIZED
"THE OBVIOUS GREAT HARDSHIP TO A PARTY WHO RELIES UPON THE TRIAL
JUDGE'S FINDING OF 'EXCUSABLE NEGLECT' PRIOR TO THE EXPIRATION OF THE
APPLICABLE PERIOD FOR FILING AN APPEAL AND THEN SUFFERS REVERSAL OF THE
FINDING  ...  " AFTER THE TIME FOR FILING THE APPEAL HAS EXPIRED. 
HARRIS TRUCK LINES, INC., V. CHERRY MEAT PACKERS, INC., 371 U.S. 215,
217.  IN THAT CASE PETITIONER HAD, WITHIN THE APPLICABLE PERIOD FOR
FILING HIS APPEAL, RECEIVED FROM THE TRIAL COURT A 30-DAY EXTENSION ON
THE TIME FOR FILING HIS APPEAL ON THE GROUND OF 'EXCUSABLE NEGLECT
BASED ON A FAILURE OF A PARTY TO LEARN OF THE ENTRY OF THE JUDGMENT." 
FED. RULES CIV. PROC., 73(A).  PETITIONER THEN FILED HIS APPEAL WITHIN
THE PERIOD OF THE EXTENSION BUT BEYOND THE ORIGINAL PERIOD.  THE COURT
OF APPEALS, CONCLUDING THAT THERE HAD BEEN NO "EXCUSABLE NEGLECT"
WITHIN THE MEANING OF RULE 73(A), HELD THAT THE DISTRICT COURT HAD
ERRED IN GRANTING THE EXTENSION AND DISMISSED THE APPEAL.  WE REVERSED
THE DISMISSAL AND REMANDED THE CASE TO THE COURT OF APPEALS "SO THAT
PETITIONER'S APPEAL MAY BE HEARD ON ITS MERITS."  IBID.  SEE ALSO
LIEBERMAN V. GULF OIL CORP., 315 F.2D 403, CERT. DENIED, 375 U.S. 823. 

THE INSTANT CAUSE FITS SQUARELY WITHIN THE LETTER AND SPIRIT OF
HARRIS.  HERE, AS THERE, PETITIONER DID AN ACT WHICH, IF PROPERLY DONE,
POSTPONED THE DEADLINE FOR THE FILING OF HIS APPEAL.  HERE, AS THERE,
THE DISTRICT COURT CONCLUDED THAT THE ACT HAD BEEN PROPERLY DONE. 
HERE, AS THERE, THE PETITIONER RELIED ON THE STATEMENT OF THE DISTRICT
COURT AND FILED THE APPEAL WITHIN THE ASSUMEDLY NEW DEADLINE BUT BEYOND
THE OLD DEADLINE.  AND HERE, AS THERE, THE COURT OF APPEALS CONCLUDED
THAT THE DISTRICT COURT HAD ERRED AND DISMISSED THE APPEAL. 
ACCORDINGLY, IN VIEW OF THESE "UNIQUE CIRCUMSTANCES," HARRIS TRUCK
LINES, INC., V. CHERRY MEAT PACKERS, INC., SUPRA, AT 217, WE GRANT THE
WRIT OF CERTIORARI, VACATE THE JUDGMENT, AND REMAND THE CASE TO THE
COURT OF APPEALS SO THAT PETITIONER'S APPEAL MAY BE HEARD ON THE
MERITS.  IT IS SO ORDERED. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE STEWART
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

I AGREE WITH THE COURT OF APPEALS THAT IT DID NOT HAVE JURISDICTION
TO HEAR THIS APPEAL ON THE MERITS. 

PETITIONER'S MOTIONS "TO AMEND CERTAIN FINDINGS OF FACT PURSUANT TO
RULE 52 F.R.C.P. AND FOR A NEW TRIAL PURSUANT TO RULE 59 F.R.C.P." 
WERE NOT TIMELY FILED, AS THEY WERE NOT SERVED UNTIL THE 12TH DAY AFTER
ENTRY OF JUDGMENT AND NOT FILED UNTIL THE 14TH DAY.  THE RULES ARE
PHRASED IN MANDATORY TERMS: 

RULE 52(B):  "UPON MOTION OF A PARTY MADE NOT LATER THAN 10 DAYS
AFTER ENTRY OF JUDGMENT THE COURT MAY AMEND ITS FINDINGS  ...  ." 

RULE 59(B):  "A MOTION FOR A NEW TRIAL SHALL BE SERVED NOT LATER THAN
10 DAYS AFTER THE ENTRY OF THE JUDGMENT." 

RULE 59(E):  "A MOTION TO ALTER OR AMEND THE JUDGMENT SHALL BE SERVED
NOT LATER THAN 10 DAYS AFTER ENTRY OF THE JUDGMENT." 

RULE 6(B) SPECIFICALLY SAYS THAT THE COURT "MAY NOT EXTEND THE TIME
FOR TAKING ANY ACTION UNDER RULES  ...  52(B), 59(B), (D) AND (E)  ...
AND 73(A)  ...  EXCEPT TO THE EXTENT AND UNDER THE CONDITIONS STATED IN
THEM."  THESE REQUIREMENTS ARE MANDATORY AND CANNOT BE ENLARGED BY THE
COURT OR BY THE PARTIES.  NONE OF THESE RULES PROVIDES FOR ANY
EXTENSION OF TIME EXCEPT 73(A), WHICH AUTHORIZES, "UPON A SHOWING OF
EXCUSABLE NEGLECT BASED ON A FAILURE OF A PARTY TO LEARN OF THE ENTRY
OF THE JUDGMENT," AN EXTENSION OF THE TIME FOR APPEAL "NOT EXCEEDING 30
DAYS FROM THE EXPIRATION OF THE ORIGINAL TIME HEREIN PRESCRIBED." 
PETITIONER HAS MADE NO CLAIM UNDER THIS PROVISION OF RULE 73(A) IN THE
DISTRICT COURT, THE COURT OF APPEALS OR IN THE "QUESTIONS PRESENTED"
HERE.  THE RUNNING OF THE TIME FOR APPEAL IS TERMINATED BY THE FILING
OF A TIMELY MOTION UNDER RULE 52 OR RULE 59.  BUT HERE PETITIONER
CONTENDS THAT THE TRIAL COURT'S STATEMENT THAT THE MOTIONS WERE "IN
AMPLE TIME," CONSIDERED TOGETHER WITH THE GOVERNMENT'S ACQUIESCENCE,
WAS SUFFICIENT TO EFFECT SUCH TERMINATION.  WHETHER THE TRIAL JUDGE'S
STATEMENT WAS SPONTANEOUS OR MADE BY AGREEMENT IS NOT SHOWN BY THE
RECORD AND IS OF NO LEGAL SIGNIFICANCE.  THE RULES SPECIFICALLY SAY
THAT MOTIONS TO AMEND THE FINDINGS AND FOR NEW TRIAL MUST BE MADE
WITHIN 10 DAYS AND THAT THIS TIME SHALL NOT BE EXTENDED. 

IN THE LIGHT OF THESE FACTS I CANNOT SAY THAT THIS CASE "FITS
SQUARELY WITHIN THE LETTER AND SPIRIT" OF HARRIS TRUCK LINES, INC., V.
CHERRY MEAT PACKERS, INC., 371 U.S. 215 (1962).  AS I READ THE FACTS IN
THE TWO CASES, HARRIS LINES DOES NOT TOUCH THE PROBLEM HERE.  IN THAT
CASE THE DISTRICT COURT, AFTER DENYING A TIMELY MOTION FOR A NEW TRIAL,
GRANTED AN APPLICATION UNDER RULE 73(A) BASED ON "EXCUSABLE NEGLECT" TO
ENLARGE THE TIME FOR APPEAL.  THE TRIAL COURT HAD JURISDICTION AND
"PROPERLY ENTERTAINED THE MOTION  ...  BEFORE THE INITIAL 30 DAYS
ALLOWED FOR DOCKETING THE APPEAL HAD ELAPSED."  AT 216.  WE SAID THAT A
FINDING OF "EXCUSABLE NEGLECT" BY A MOTIONS JUDGE WAS ENTITLED TO
"GREAT DEFERENCE BY THE REVIEWING COURT" IN THE LIGHT OF THE "OBVIOUS
GREAT HARDSHIP TO A PARTY WHO RELIES UPON THE TRIAL JUDGE'S FINDING." 
AT 217.  FINALLY, WE SAID THAT THE SHOWING OF "EXCUSABLE NEGLECT" WAS
OF "UNIQUE CIRCUMSTANCES SUFFICIENT THAT THE COURT OF APPEALS OUGHT NOT
TO HAVE DISTURBED THE MOTION JUDGE'S RULING."  IBID.  THAT IS A FAR CRY
FROM THIS CASE WHERE THE TRIAL COURT HAD NO JURISDICTION TO PASS UPON
THE UNTIMELY MOTIONS TO AMEND THE FINDINGS AND FOR A NEW TRIAL.  TO
ESCAPE THIS, THE COURT EITHER READS INTO THE RULES, CONTRARY TO THE
SPECIFIC PROHIBITION OF 6(B), AUTHORIZATION FOR THE DISTRICT COURT TO
ENLARGE THE TIME FOR FILING SUCH MOTIONS, OR TREATS THE MOTIONS AS
BEING WITHIN THE PROVISIONS OF RULE 73(A), DESPITE FAILURE TO ALLEGE
ANY "EXCUSABLE NEGLECT."  BY THUS AUTHORIZING THE TRIAL JUDGE TO
ENTERTAIN THE MOTIONS IT THEREBY EXTENDS THE TIME FOR APPEAL.  AND, AS
I HAVE SAID, THE ERROR OF THE TRIAL JUDGE IN ENTERTAINING THE MOTIONS
COULD NOT BE VALIDATED BY THE ACQUIESCENCE OF THE GOVERNMENT.  IT IS
ELEMENTARY THAT THE PARTIES CANNOT CONFER JURISDICTION ON THE COURT. 

WE HAVE SAID THAT UNTIMELY MOTIONS TO AMEND THE FINDINGS AND FOR NEW
TRIAL ARE OF NO LEGAL SIGNIFICANCE WHATSOEVER BECAUSE THE LIMITING
LANGUAGE OF RULE 6(B) IS "MANDATORY AND JURISDICTIONAL AND CAN NOT BE
EXTENDED REGARDLESS OF EXCUSE."  UNITED STATES V. ROBINSON, 361 U.S.
220, 229 (1960).   IN MY VIEW WE SHOULD ABIDE BY THESE RULES OR AMEND
THEM, RATHER THAN EMASCULATE THEM. 

RULES OF PROCEDURE ARE A NECESSARY PART OF AN ORDERLY SYSTEM OF
JUSTICE.  THEIR EFFICACY, HOWEVER, DEPENDS UPON THE WILLINGNESS OF THE
COURTS TO ENFORCE THEM ACCORDING TO THEIR TERMS.  CHANGES IN RULES
WHOSE INFLEXIBILITY HAS TURNED OUT TO WORK HARDSHIP SHOULD BE EFFECTED
BY THE PROCESS OF AMENDMENT, NOT BY AD HOC RELAXATIONS BY THIS COURT IN
PARTICULAR CASES.  SUCH DISPENSATIONS IN THE LONG RUN ACTUALLY PRODUCE
MISCHIEVOUS RESULTS, UNDERMINING THE CERTAINTY OF THE RULES AND CAUSING
CONFUSION AMONG THE LOWER COURTS AND THE BAR.  CF. LIEBERMAN V. GULF
OIL CORP., 315 F.2D 403, 406, 407. 

ACCORDINGLY, I WOULD HAVE DENIED CERTIORARI IN THE PRESENT CASE, BUT
NOW THAT IT IS HERE I WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS. 
..END :














GRIFFIN V. SCHOOL BOARD OF PRINCE EDWARD COUNTY 375 U.S. 391 


NO. 592.  DECIDED JANUARY 6, 1964.  - CERTIORARI GRANTED.  - REPORTED
BELOW:  322 F.2D 332. 


GRIFFIN ET AL. V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THIS CASE IS ONE OF THE SCHOOL SEGREGATION CASES WHICH WE DEALT WITH
NEARLY A DECADE AGO IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 349
U.S. 294.  AFTER REMAND, NUMEROUS OPINIONS WERE WRITTEN BY THE DISTRICT
COURT AND THE COURT OF APPEALS* BUT THE MANDATE ISSUED AT THE TIME OF
THE BROWN CASE HAS NEVER BEEN IMPLEMENTED.  IN 1956 THE BOARD OF
SUPERVISORS DECIDED NOT TO LEVY TAXES OR APPROPRIATE FUNDS FOR
INTEGRATED PUBLIC SCHOOLS; AND WHITE CHILDREN HAVE ATTENDED WHITE-ONLY
SCHOOLS OPERATED BY THE PRINCE EDWARD SCHOOL FOUNDATION, WHICH HAS
RECEIVED STATE SUPPORT.  THE DISTRICT COURT ENJOINED ALLOWANCE OF SUCH
SUPPORT (198 F. SUPP. 497) AND HELD THAT THE PUBLIC SCHOOLS COULD NOT
REMAIN CLOSED WHILE PUBLIC SCHOOLS IN OTHER COUNTIES STAYED OPEN.  207
F. SUPP. 349.  THEREAFTER LITIGATION WAS INSTITUTED IN THE VIRGINIA
COURTS WHICH RESULTED IN A RULING BY THE VIRGINIA SUPREME COURT OF
APPEALS THAT THE VIRGINIA CONSTITUTION COMPELS NEITHER THE STATE NOR
THE COUNTY TO REOPEN THE PUBLIC SCHOOLS IN PRINCE EDWARD COUNTY OR TO
FURNISH FUNDS FOR THAT PURPOSE.  204 VA. 650, 133 S.E.2D 565.  THE
COURT OF APPEALS, PRIOR TO THAT DECISION, VACATED THE JUDGMENT OF THE
DISTRICT COURT WITH INSTRUCTIONS TO ABSTAIN FROM FURTHER PROCEEDINGS
UNTIL THE VIRGINIA STATE DECISION BECAME FINAL (322 F.2D 332) - A
JUDGMENT WHICH WAS STAYED BY MR. JUSTICE BRENNAN ON SEPTEMBER 30, 1963,
"PENDING THE TIMELY FILING AND DISPOSITION OF A PETITION FOR A WRIT OF
CERTIORARI."  THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH
RAISES NOT ONLY THE PROPRIETY OF THE JUDGMENT OF THE COURT OF APPEALS
INSOFAR AS IT DIRECTED THE DISTRICT COURT TO ABSTAIN UNTIL THE VIRGINIA
COURTS HAD ACTED, BUT OTHER ISSUES GOING TO THE MERITS. 

*SEE 249 F.2D 462, REVERSING 149 F. SUPP. 431; 266 F.2D 507,
REVERSING 164 F. SUPP. 786. 

IN VIEW OF THE LONG DELAY IN THE CASE SINCE OUR DECISION IN THE BROWN
CASE AND THE IMPORTANCE OF THE QUESTIONS PRESENTED, WE GRANT CERTIORARI
AND PUT THE CASE DOWN FOR ARGUMENT MARCH 30, 1964, ON THE MERITS, AS WE
HAVE DONE IN OTHER COMPARABLE SITUATIONS WITHOUT WAITING FOR FINAL
ACTION BY THE COURT OF APPEALS.  SEE 28 U.S.C. SEC. 1254(1); YOUNGSTOWN
CO. V. SAWYER, 343 U.S. 579, 584; WILSON V. GIRARD, 354 U.S. 524, 526. 

..END :




WINTNER V. UNITED STATES 375 U.S. 393 


NO. 98.  DECIDED JANUARY 6, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW: 312 F.2D 749. 


WINTNER V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  MEYER V. UNITED STATES, ANTE, P. 233. 
..END :
















WALKER V. LOUISIANA 375 U.S. 393 


NO. 236.  DECIDED JANUARY 6, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


WALKER ET AL. V. LOUISIANA EX REL. JOINT LEGISLATIVE COMMITTEE ON UN
AMERICAN ACTIVITIES. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















RATIGAN V. DAVIS 375 U.S. 394 


NO. 547.  DECIDED JANUARY 6, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  175 NEB. 416, 122
N.W.2D 12. 


RATIGAN ET AL. V. DAVIS ET AL. 

APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SPATT V. CITY OF NEW YORK 375 U.S. 394 


NO. 562.  DECIDED JANUARY 6, 1964.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  13 N.Y.2D 618, 191
N.E.2D 91. 


SPATT V. CITY OF NEW YORK ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CONSUL GENERAL OF YUGOSLAVIA AT PITTSBURGH V. PENNSYLVANIA 375 U.S. 395
A 


NO. 566.  DECIDED JANUARY 6, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW: 411 PA. 506, 192 A.2D 740. 


CONSUL GENERAL OF YUGOSLAVIA AT PITTSBURGH V. PENNSYLVANIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA, EASTERN DISTRICT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  KOLOVRAT V. OREGON, 366 U.S. 187. 
..END :















SCHIRO V. BYNUM 375 U.S. 395 


NO. 580.  DECIDED JANUARY 6, 1964.  - 219 F. SUPP. 204, AFFIRMED. 


SCHIRO, MAYOR OF NEW ORLEANS, ET AL. V. BYNUM ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  JOHNSON V. VIRGINIA, 373 U.S. 61. 
..END :


















HANSELL V. DOUGLASS 375 U.S. 396 


NO. 586.  DECIDED JANUARY 6, 1964.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 234 ORE.  315, 380 P.2D 977. 


HANSELL ET AL. V. DOUGLASS ET AL. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















NATIONAL LABOR RELATIONS BOARD V. INTERNATIONAL UNION, PROGRESSIVE MINE
WORKERS OF AMERICA 375 U.S. 396 


NO. 597.  DECIDED JANUARY 6, 1964.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW: 319 F.2D 428. 


NATIONAL LABOR RELATIONS BOARD V. INTERNATIONAL UNION, PROGRESSIVE MINE
WORKERS OF AMERICA, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  LABOR BOARD V. KATZ, 369 U.S. 736; FRANKS BROS. CO. V. LABOR
BOARD, 321 U.S. 702; LABOR BOARD V. P. LORILLARD CO., 314 U.S. 512. 
..END :













FAUDEL V. IOWA 375 U.S. 397 


NO. 123, MISC.  DECIDED JANUARY 6, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


FAUDEL V. IOWA. 

APPEAL FROM THE DISTRICT COURT OF SCOTT COUNTY, IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WATKINS V. BETO 375 U.S. 397 


NO. 417, MISC.  DECIDED JANUARY 6, 1964.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


WATKINS V. BETO, CORRECTIONS DIRECTOR, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF TEXAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF CRIMINAL APPEALS FOR CONSIDERATION IN
LIGHT OF DOUGLAS V. CALIFORNIA, 372 U.S. 353; DRAPER V. WASHINGTON, 372
U.S. 487. 
..END :













JENNINGS V. TEXAS 375 U.S. 398 


NO. 717, MISC.  DECIDED JANUARY 6, 1964.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW: 367 S.W.2D 670. 


JENNINGS V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















FOTI V. IMMIGRATION SERVICE 375 U.S. 217 


NO. 28.  ARGUED OCTOBER 17, 21, 1963.  - DECIDED DECEMBER 16, 1963.  -
308 F.2D 779, REVERSED AND REMANDED. 


UNDER SEC. 106(A) OF THE IMMIGRATION AND NATIONALITY ACT, AS ADDED IN
1961, A FEDERAL COURT OF APPEALS HAS SOLE AND EXCLUSIVE JURISDICTION TO
REVIEW AN ADMINISTRATIVE DETERMINATION OF THE ATTORNEY GENERAL DENYING
A SUSPENSION OF DEPORTATION SOUGHT BY AN ALIEN UNDER SEC. 244(A)(5). 
PP. 217-232. 

FOTI V. IMMIGRATION AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

INVOLVED IN THIS CASE IS THE SINGLE QUESTION OF WHETHER THE FEDERAL
COURTS OF APPEALS HAVE THE INITIAL, EXCLUSIVE JURISDICTION, UNDER SEC.
106(A) OF THE IMMIGRATION AND NATIONALITY ACT, TO REVIEW DISCRETIONARY
DETERMINATIONS OF THE ATTORNEY GENERAL, RELATING TO THE SUSPENSION OF
DEPORTATION, UNDER SEC. 244(A)(5) OF THE ACT. 

PETITIONER, A 47-YEAR-OLD ALIEN AND A NATIVE AND CITIZEN OF ITALY,
LAST ENTERED THE UNITED STATES IN LATE 1950, THROUGH THE PORT OF
NORFOLK, VIRGINIA, ON A SEAMAN'S VISA WHICH AUTHORIZED HIM TO REMAIN IN
THIS COUNTRY FOR A PERIOD NOT TO EXCEED 29 DAYS.  HE REMAINED HERE
ILLEGALLY FOR MORE THAN 10 YEARS, LEAVING HIS WIFE AND THREE MINOR
CHILDREN IN ITALY.  IN 1961, DEPORTATION PROCEEDINGS WERE INSTITUTED
AGAINST PETITIONER, DIRECTING HIM TO APPEAR BEFORE A SPECIAL INQUIRY
OFFICER OF THE IMMIGRATION AND NATURALIZATION SERVICE AND SHOW CAUSE
WHY HE SHOULD NOT BE DEPORTED UNDER SEC. 241(A)(2) OF THE IMMIGRATION
AND NATIONALITY ACT OF 1952, 8 U.S.C. SEC. 1251(A)(2), AS AN ALIEN WHO
HAD UNLAWFULLY OVERSTAYED THE PERIOD FOR WHICH HE HAD BEEN ADMITTED. 
AT A HEARING CONDUCTED BEFORE A SPECIAL INQUIRY OFFICER UNDER SEC.
242(B) OF THE ACT, PETITIONER CONCEDED HIS DEPORTABILITY, AND APPLIED,
IN THE ALTERNATIVE, FOR TWO FORMS OF DISCRETIONARY RELIEF WHICH THE
ATTORNEY GENERAL IS AUTHORIZED BY THE ACT TO GRANT TO DEPORTABLE
PERSONS WHO MEET DEFINED ELIGIBILITY REQUIREMENTS.  HE SOUGHT, PURSUANT
TO SEC. 244(A)(5) OF THE ACT, A SUSPENSION OF DEPORTATION ON THE GROUND
THAT IT WOULD BE DIFFICULT FOR HIM TO EARN A LIVING FOR HIS FAMILY IN
ITALY IF HE WERE DEPORTED AND DEPORTATION WOULD RESULT IN HIS HAVING TO
LIQUIDATE THE BAKERY BUSINESS WHICH HE OWNED AND OPERATED IN BROOKLYN,
NEW YORK.  ALTERNATIVELY, IF SUSPENSION OF DEPORTATION WERE REFUSED,
PETITIONER REQUESTED, PURSUANT TO SEC. 244(E) OF THE ACT, THE PRIVILEGE
OF VOLUNTARY DEPARTURE AT HIS OWN EXPENSE IN LIEU OF DEPORTATION.  THE
SPECIAL INQUIRY OFFICER, ALTHOUGH FINDING THAT PETITIONER MET THE GOOD
MORAL CHARACTER AND 10 YEARS' CONTINUOUS PRESENCE IN THE UNITED STATES
REQUIREMENTS OF SEC. 244(A)(5), DENIED HIS APPLICATION FOR SUSPENSION
OF DEPORTATION, ON THE GROUND THAT PETITIONER WAS INELIGIBLE FOR THAT
FORM OF DISCRETIONARY RELIEF SINCE HIS DEPORTATION WOULD NOT RESULT "IN
EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP  ...  ."  PETITIONER'S
ALTERNATIVE REQUEST FOR THE PRIVILEGE OF VOLUNTARY DEPARTURE WAS
GRANTED, HOWEVER.  (FN1)  PETITIONER APPEALED TO THE BOARD OF
IMMIGRATION APPEALS FROM THAT PART OF THE ORDER OF THE SPECIAL INQUIRY
OFFICER WHICH DENIED HIS REQUEST FOR SUSPENSION OF DEPORTATION.  THE
BOARD, ON NOVEMBER 28, 1961, DISMISSED THE APPEAL.  PETITIONER WAS
DIRECTED TO EFFECT HIS DEPARTURE BY DECEMBER 18, 1961.  PRIOR TO THAT
DATE, PETITIONER COMMENCED AN ACTION IN THE FEDERAL DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, SEEKING DECLARATORY AND INJUNCTIVE
RELIEF FROM THE ADMINISTRATIVE REFUSAL TO GRANT HIS REQUEST FOR
SUSPENSION OF DEPORTATION.  THE DISTRICT COURT DISMISSED THE ACTION ON
THE GROUND THAT, UNDER THE RECENTLY ENACTED SEC. 106(A) OF THE
IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SEC. 1105AA), (FN2) THE SOLE
AND EXCLUSIVE PROCEDURE FOR OBTAINING JUDICIAL REVIEW OF SUCH A
DETERMINATION WAS BY A PETITION FOR REVIEW FILED IN AN APPROPRIATE
FEDERAL COURT OF APPEALS.  ACCORDINGLY, PETITIONER THEN SOUGHT REVIEW
IN THE COURT OF APPEALS FOR THE SECOND CIRCUIT.  ON SEPTEMBER 21, 1962,
THE COURT OF APPEALS, SITTING EN BANC AND BY A FIVE-TO-FOUR VOTE,
DISMISSED THE PETITION FOR LACK OF JURISDICTION, HOLDING THAT THE TERM
"FINAL ORDERS OF DEPORTATION" IN SEC. 106(A) DOES NOT INCLUDE A DENIAL
OF DISCRETIONARY RELIEF UNDER SEC. 244(A)(5).  308 F.2D 779.  BECAUSE
OF A CONFLICT AMONG THE COURTS OF APPEALS REGARDING THE INTERPRETATION
OF THIS JURISDICTIONAL LANGUAGE IN SEC. 106(A), (FN3) WE GRANTED
CERTIORARI, LIMITED TO THE QUESTION WHETHER COURTS OF APPEALS HAVE
JURISDICTION TO REVIEW FINAL ADMINISTRATIVE ORDERS WITH RESPECT TO
DISCRETIONARY RELIEF SOUGHT DURING DEPORTATION PROCEEDINGS.  371 U.S.
947. 

THE ISSUE INVOLVED HERE IS SOLELY ONE RELATING TO PROCEDURES INCIDENT
TO DEPORTATION PROCEEDINGS.  IN THE PRESENT POSTURE OF THE CASE, WE
NEED NOT BE CONCERNED WITH THE ULTIMATE MERITS AS TO PETITIONER'S
DEPORTABILITY, (FN4) SINCE HE CONCEDES THAT HE IS DEPORTABLE AND THE
QUESTION OF THE PROPRIETY OF THE ADMINISTRATIVE REFUSAL OF SUSPENSION
OF DEPORTATION HAS NOT AS YET BEEN REVIEWED IN ANY LOWER FEDERAL
COURT.  THE ONLY QUESTION PRESENTED FOR DECISION INVOLVES THE SCOPE OF
JUDICIAL REVIEW BY THE COURTS OF APPEALS OF ADMINISTRATIVE
DETERMINATIONS MADE DURING THE COURSE OF DEPORTATION PROCEEDINGS. 
SPECIFICALLY, WE MUST DECIDE A RATHER NARROW QUESTION OF STATUTORY
CONSTRUCTION - WHETHER A REFUSAL BY THE ATTORNEY GENERAL TO GRANT A
SUSPENSION OF DEPORTATION IS ONE OF THOSE "FINAL ORDERS OF DEPORTATION"
OF WHICH DIRECT REVIEW BY COURTS OF APPEALS IS AUTHORIZED UNDER SEC.
106(A) OF THE ACT.  BOTH PARTIES HAVE CONTENDED THAT IT IS.  WHILE THE
QUESTION IS NOT FREE OF DIFFICULTY, AS EVIDENCED BY THE DIVISION IN THE
COURT BELOW AND THE CONFLICT AMONG THE VARIOUS COURTS OF APPEALS ON THE
MATTER, WE HAVE CONCLUDED THAT THE COURT BELOW ERRED IN HOLDING THAT IT
WAS NOT. 

THE STATUTORY PROVISION IN QUESTION, SEC. 106(A) OF THE IMMIGRATION
AND NATIONALITY ACT, PROVIDES THAT THE PROCEDURE FOR JUDICIAL REVIEW BY
THE COURTS OF APPEALS OF CERTAIN ORDERS (FN5) OF THE FEDERAL
COMMUNICATIONS COMMISSION, SECRETARY OF AGRICULTURE, FEDERAL MARITIME
BOARD AND ATOMIC ENERGY COMMISSION SHALL ALSO "APPLY TO, AND SHALL BE
THE SOLE AND EXCLUSIVE PROCEDURE FOR, THE JUDICIAL REVIEW OF ALL FINAL
ORDERS OF DEPORTATION HERETOFORE OR HEREAFTER MADE AGAINST ALIENS
WITHIN THE UNITED STATES PURSUANT TO ADMINISTRATIVE PROCEEDINGS UNDER
...  ."  SECTION 242 PROVIDES A DETAILED ADMINISTRATIVE PROCEDURE FOR
DETERMINING WHETHER AN ALIEN SHOULD BE DEPORTED.  SECTIONS 243 AND 244
RELATE TO CERTAIN SITUATIONS IN WHICH THE ATTORNEY GENERAL MAY SUSPEND
DEPORTATION IN HIS DISCRETION.  IN ITS DECISION BELOW, THE COURT OF
APPEALS FOR THE SECOND CIRCUIT HELD THAT SEC. 106(A) APPLIES ONLY TO
ORDERS REQUIRED BY STATUTE TO BE MADE IN A SEC. 242(B) HEARING I.E.,
FINDINGS OF DEPORTABILITY.  BOTH PETITIONER AND THE GOVERNMENT HAVE
URGED THAT THE DECISION BELOW SHOULD BE REVERSED, AND THAT THE
STATUTORY LANGUAGE SHOULD BE SO CONSTRUED AS TO INCLUDE BOTH AN
ADJUDICATION OF DEPORTABILITY AND AN ORDER DENYING SUSPENSION OF
DEPORTATION.  BASED ON THE HISTORICAL BACKGROUND OF THE IMMIGRATION AND
NATIONALITY ACT, (FN6) THE MANIFEST PURPOSE OF CONGRESS IN ENACTING
SEC. 106(A), THE CONTEXT OF THE STATUTORY LANGUAGE WHEN VIEWED AGAINST
THE PREVAILING ADMINISTRATIVE PRACTICES AND PROCEDURES, AND PERTINENT
LEGISLATIVE HISTORY OF SEC. 106(A), WE ARE LED TO THE CONCLUSION THAT
THE INTERPRETATION ARGUED FOR BY PETITIONER AND THE GOVERNMENT IS THE
CORRECT ONE. 

PRIOR TO 1940, THE ATTORNEY GENERAL HAD NO DISCRETION WITH RESPECT TO
THE DEPORTATION OF AN ALIEN WHO CAME WITHIN THE DEFINED CATEGORY OF
DEPORTABLE PERSONS.  THE EXPULSION OF SUCH A PERSON WAS MANDATORY; HIS
ONLY AVENUE OF RELIEF IN A HARDSHIP CASE WAS BY A PRIVATE BILL IN
CONGRESS.  THEREFORE, ANY DIFFERENTIATION THAT MIGHT HAVE BEEN MADE
PRIOR TO 1940 BETWEEN A DETERMINATION THAT AN ALIEN WAS DEPORTABLE AND
THE ORDER DIRECTING HIS DEPORTATION WOULD HAVE BEEN MERELY FORMALISTIC
AND ESSENTIALLY MEANINGLESS.  IN FACT, THE DETERMINATION OF
DEPORTABILITY NECESSARILY RESULTED IN, AND WAS INVARIABLY ACCOMPANIED
BY, A DEPORTATION ORDER.  SINCE 1940, HOWEVER, WHEN THE ATTORNEY
GENERAL WAS GIVEN THE POWER TO GRANT DISCRETIONARY RELIEF UNDER VARIOUS
CIRCUMSTANCES IN DEPORTATION CASES, (FN7) ADMINISTRATIVE REGULATIONS
HAVING THE FORCE AND EFFECT OF LAW HAVE PROVIDED FOR THE PRACTICE OF
DETERMINING DEPORTABILITY AND RULING ON AN APPLICATION FOR SUSPENSION
OF DEPORTATION IN A SINGLE PROCEEDING CONDUCTED BY THE IMMIGRATION AND
NATURALIZATION SERVICE.  THUS, THE ADMINISTRATIVE DISCRETION TO GRANT A
SUSPENSION OF DEPORTATION HAS HISTORICALLY BEEN CONSISTENTLY EXERCISED
AS AN INTEGRAL PART OF THE PROCEEDINGS WHICH HAVE LED TO THE ISSUANCE
OF A FINAL DEPORTATION ORDER, AND DISCRETIONARY RELIEF, IF SOUGHT, MUST
BE REQUESTED PRIOR TO OR DURING THE DEPORTATION HEARING.  THE HEARINGS
ON DEPORTABILITY AND ON AN APPLICATION FOR DISCRETIONARY RELIEF HAVE,
AS A MATTER OF TRADITIONAL UNIFORM PRACTICE, BEEN HELD IN ONE
PROCEEDING BEFORE THE SAME SPECIAL INQUIRY OFFICER, RESULTING IN ONE
FINAL ORDER OF DEPORTATION.  SIGNIFICANTLY, WHEN SUSPENSION IS GRANTED,
NO DEPORTATION ORDER IS RENDERED AT ALL, EVEN IF THE ALIEN IS IN FACT
FOUND TO BE DEPORTABLE. 

IT MUST BE CONCLUDED THAT CONGRESS KNEW OF THIS FAMILIAR
ADMINISTRATIVE PRACTICE AND HAD IT IN MIND WHEN IT ENACTED SEC.
106(A).  THESE USAGES AND PROCEDURES, WHICH WERE ACTUALLY FOLLOWED WHEN
THE PROVISION WAS ENACTED, MUST REASONABLY BE REGARDED AS COMPOSING THE
CONTEXT OF THE LEGISLATION.  A COLLOQUY BETWEEN CONGRESSMEN WALTER,
LINDSAY AND MOORE, ALL KNOWLEDGEABLE IN DEPORTATION MATTERS, (FN8) IS
DEFINITELY CORROBORATIVE OF THIS VIEW.  THIS COLLOQUY OCCURRED DURING
THE HOUSE DEBATES ON THE PREDECESSOR TO THE BILL WHICH WAS ENACTED IN
1961 AND CONTAINED SEC. 106(A).  (FN9) REPRESENTATIVE LINDSAY SUGGESTED
THAT THE LEGISLATIVE HISTORY SHOULD MAKE ABSOLUTELY CLEAR "THAT IF
THERE IS ANY REMEDY ON THE ADMINISTRATIVE LEVEL LEFT OF ANY NATURE,
THAT THE DEPORTATION ORDER WILL NOT BE CONSIDERED FINAL." 
REPRESENTATIVE WALTER AGREED, AND STATED THAT "THE FINAL ORDER MEANS
THE FINAL ADMINISTRATIVE ORDER."  WITH REPRESENTATIVE MOORE CONCURRING,
ALL THREE CONGRESSMEN AGREED THAT THERE WOULD BE NO "FINAL ORDER OF
DEPORTATION" UNTIL AFTER DETERMINATION OF THE QUESTION OF SUSPENSION. 
SIGNIFICANTLY, REPRESENTATIVE WALTER, IN DISCUSSING THE RUNNING OF THE
TIME PERIOD PROVIDED FOR THE FILING OF PETITIONS FOR REVIEW BY THE
COURTS OF APPEALS UNDER THE PROPOSED LEGISLATION, STATED THAT "THE 6
MONTHS' PERIOD ON THE QUESTION OF FINALITY OF AN ORDER APPLIES TO THE
FINAL ADMINISTRATIVE ADJUDICATION OF THE APPLICATIONS FOR SUSPENSION OF
DEPORTATION JUST AS IT WOULD APPLY TO ANY OTHER ISSUE BROUGHT UP IN
DEPORTATION PROCEEDINGS."  WITH THE DISSENTERS BELOW, WE FEEL THAT THE
COURT'S SPECULATION THAT FEW CONGRESSMEN WERE PRESENT AT THE TIME OF
THIS EXCHANGE WAS UNWARRANTED AND PROBABLY IMMATERIAL. 

IT CAN HARDLY BE CONTENDED THAT THE MEANING OF THE PHRASE "FINAL
ORDERS OF DEPORTATION" IS SO CLEAR AND UNAMBIGUOUS AS TO BE SUSCEPTIBLE
OF ONLY A NARROW INTERPRETATION CONFINED SOLELY TO DETERMINATIONS OF
DEPORTABILITY.  IF ANYTHING, THE LITERAL LANGUAGE WOULD APPEAR TO
INCLUDE A DENIAL OF DISCRETIONARY RELIEF, MADE DURING THE SAME
PROCEEDINGS IN WHICH DEPORTABILITY IS DETERMINED, WHICH EFFECTIVELY
TERMINATES THE PROCEEDING.  IN ARRIVING AT THE INTENDED CONSTRUCTION OF
THIS LANGUAGE, WE MUST THEREFORE INEVITABLY TURN TO THE PURPOSE OF
CONGRESS IN ENACTING THIS LEGISLATION.   THE FUNDAMENTAL PURPOSE BEHIND
SEC. 106(A) WAS TO ABBREVIATE THE PROCESS OF JUDICIAL REVIEW OF
DEPORTATION ORDERS IN ORDER TO FRUSTRATE CERTAIN PRACTICES WHICH HAD
COME TO THE ATTENTION OF CONGRESS, WHEREBY PERSONS SUBJECT TO
DEPORTATION WERE FORESTALLING DEPARTURE BY DILATORY TACTICS IN THE
COURTS.  A HOUSE JUDICIARY COMMITTEE REPORT SUCCINCTLY STATED THE
PROBLEM TO WHICH CONGRESS ADDRESSED ITSELF IN ENACTING SEC. 106(A). 
(FN10)  IT INDICATED THAT THE COMMITTEE "HAS BEEN DISTURBED IN RECENT
YEARS TO OBSERVE THE GROWING FREQUENCY OF JUDICIAL ACTIONS BEING
INSTITUTED BY UNDESIRABLE ALIENS WHOSE CASES HAVE NO LEGAL BASIS OR
MERIT, BUT WHICH ARE BROUGHT SOLELY FOR THE PURPOSE OF PREVENTING OR
DELAYING INDEFINITELY THEIR DEPORTATION FROM THIS COUNTRY."  POINTING
TO THE ESSENCE OF THE PROBLEM, THE REPORT CONTINUED: 

"OTHER ALIENS, MOSTLY SUBVERSIVES, GANGSTERS, IMMORAL PERSONS, OR
NARCOTIC PEDDLERS, MANAGE TO PROTRACT THEIR STAY HERE INDEFINITELY ONLY
BECAUSE THEIR ILL-GOTTEN GAINS PERMIT THEM TO PROCURE THE SERVICES OF
ASTUTE ATTORNEYS WHO KNOW HOW TO SKILLFULLY EXPLOIT THE JUDICIAL
PROCESS.  WITHOUT ANY REFLECTION UPON THE COURTS, IT IS UNDOUBTEDLY NOW
THE FACT THAT SUCH TACTICS CAN PREVENT ENFORCEMENT OF THE DEPORTATION
PROVISIONS OF THE IMMIGRATION AND NATIONALITY ACT BY REPETITIVE APPEALS
TO THE BUSY AND OVERWORKED COURTS WITH FRIVOLOUS CLAIMS OF IMPROPRIETY
IN THE DEPORTATION PROCEEDINGS." 

THE KEY FEATURE OF THE CONGRESSIONAL PLAN DIRECTED AT THIS PROBLEM
WAS THE ELIMINATION OF THE PREVIOUS INITIAL STEP IN OBTAINING JUDICIAL
REVIEW - A SUIT IN A DISTRICT COURT - AND THE RESULTING RESTRICTION OF
REVIEW TO COURTS OF APPEALS, SUBJECT ONLY TO THE CERTIORARI
JURISDICTION OF THIS COURT.  AS STATED IN THE SAME COMMITTEE REPORT,
THE PLAIN OBJECTIVE OF SEC. 106(A) WAS "TO CREATE A SINGLE, SEPARATE,
STATUTORY FORM OF JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS FOR THE
DEPORTATION ...  OF ALIENS  ...  ."  (FN11)  FURTHER EVIDENCE OF A
SPECIFIC CONGRESSIONAL INTENT TO GIVE COURTS OF APPEALS EXCLUSIVE
JURISDICTION TO REVIEW DENIALS OF DISCRETIONARY RELIEF IN DEPORTATION
PROCEEDINGS IS CONTAINED IN THE LEGISLATIVE HISTORY.  CASE HISTORIES OF
ABUSE OF THE EXISTING JUDICIAL REVIEW PROCESS, AS SUMMARIZED IN THE
VARIOUS COMMITTEE REPORTS, INCLUDE REFERENCES TO LITIGATION ARISING OUT
OF DISCRETIONARY DETERMINATIONS.  AND A REFERENCE CHART REPRODUCED IN
THE COMMITTEE REPORTS SHOWS THE DENIAL OF DISCRETIONARY RELIEF AS BEING
ANTECEDENT TO AND A CONSTITUENT PART OF THE "FINAL ORDER OF
DEPORTATION."  ALTHOUGH DEPORTABILITY AND WHETHER TO GRANT A SUSPENSION
ARE DETERMINED IN THE SAME HEARING, THE DECISION BELOW MEANS THAT AN
ALIEN MAY APPEAL ONLY THE DEPORTABILITY FINDING TO A COURT OF APPEALS
AND MUST INITIALLY SEEK REVIEW OF A DENIAL OF SUSPENSION IN A DISTRICT
COURT.  A SHORT ANALYSIS OF THE REASONING OF THE COURT BELOW
DEMONSTRATES THAT ITS CONCLUSION IS INCONSISTENT WITH THIS MANIFEST
PURPOSE OF CONGRESS. 

ALTHOUGH THE COURT OF APPEALS AGREES THAT THE BASIC PURPOSE OF SEC.
106(A) WAS TO EXPEDITE THE DEPORTATION OF UNDESIRABLE ALIENS BY
PREVENTING SUCCESSIVE DILATORY APPEALS TO VARIOUS FEDERAL COURTS, IT
FAILS TO APPLY THAT INTERPRETATION TO THE QUESTION PRESENTED IN THIS
CASE.  ITS FINDING THAT THE BIFURCATED PROCEDURE RESULTING FROM AN
ALIEN'S SEEKING REVIEW OF A DENIAL OF DISCRETIONARY RELIEF IN A
DISTRICT COURT AND REVIEW OF AN ADJUDICATION OF DEPORTABILITY, AS IS
ADMITTEDLY REQUIRED BY SEC. 106(A), IN A COURT OF APPEALS WOULD
EXPEDITE THE DEPORTATION IS WITHOUT FOUNDATION.  IT IS PREMISED ON ITS
ASSUMPTION THAT, IN ACTIONS TO REVIEW DENIAL OF DISCRETIONARY RELIEF,
DISTRICT COURTS RARELY GRANT RESTRAINING ORDERS.  RELIANCE UPON SUCH AN
ASSUMPTION, WE FEEL, IS UNJUSTIFIED.  (FN12)  AT ALL EVENTS, UNDER THE
PROCEDURE URGED BY THE PETITIONER AND THE GOVERNMENT, AN ALIEN CAN
OBTAIN AN AUTOMATIC STAY OF DEPORTATION UNDER SEC. 106(A) BY SEEKING A
REVIEW OF THE FINDING OF DEPORTABILITY ANC CAN SIMULTANEOUSLY SEEK
REVIEW OF THE DENIAL OF DISCRETIONARY RELIEF IN A COURT OF APPEALS. 
REVIEW OF THE DENIAL OF DISCRETIONARY RELIEF IS ANCILLARY TO THE
DEPORTABILITY ISSUE, AND BOTH DETERMINATIONS SHOULD THEREFORE BE MADE
BY THE SAME COURT AT THE SAME TIME.  WE REALIZE THAT DEPORTABILITY IS
CONCEDED IN A LARGE NUMBER OF CASES.  (FN13)  BUT THIS FACT HARDLY
DETRACTS FROM OUR VIEW AS TO A PROPER INTERPRETATION OF SEC. 106(A). 
(FN14) 

IN SUBSTANCE, WE FEEL THAT THE COURT OF APPEALS WAS WRONG IN LIMITING
THE PHRASE "FINAL ORDERS OF DEPORTATION" IN SEC. 106(A) TO
ADJUDICATIONS OF DEPORTABILITY.  THE FINDING OF THE COURT BELOW THAT
THE PHRASE WAS A "TERM OF ART" WITH A WELL-UNDERSTOOD MEANING, MERELY
BECAUSE IT WAS USED SEVERAL TIMES IN SECS. 242 AND 244 WHEN PLAINLY
REFERRING ONLY TO RULINGS ON DEPORTABILITY, CANNOT BE SUBSTANTIATED. 
242 AND 244, AND IT IS SOLELY CONCERNED WITH THE RATHER DIFFERENT
PROBLEM OF JUDICIAL REVIEW.  AND THE LANGUAGE OF SEC. 242(B) INDICATES
THAT CONGRESS PLAINLY DISTINGUISHED DETERMINATIONS OF DEPORTABILITY
FROM ORDERS OF DEPORTATION.  WE REGARD THIS AS OF ESPECIAL RELEVANCE
SINCE SEC. 106(A), IN DESCRIBING THE "FINAL ORDERS OF DEPORTATION"
INTENDED TO BE ENCOMPASSED THEREUNDER, SPECIFICALLY REFERS TO
ADMINISTRATIVE PROCEEDINGS CONDUCTED UNDER SEC. 242(B). 

PARAGRAPH (4) OF THE SUBSIDIARY EXCEPTIONS TO SEC. 106(A) PROVIDES
FOR REVIEW SOLELY UPON THE ADMINISTRATIVE RECORD AND INDICATES THAT THE
FINDINGS OF FACT BELOW ARE CONCLUSIVE "IF SUPPORTED BY REASONABLE,
SUBSTANTIAL, AND PROBATIVE EVIDENCE ON THE RECORD CONSIDERED AS A
WHOLE."  HOWEVER, THIS DOES NOT NECESSARILY MEAN THAT CONGRESS INTENDED
REVIEW IN THE COURTS OF APPEALS TO BE RESTRICTED TO ADJUDICATIONS OF
DEPORTABILITY.  ADMITTEDLY, THE STANDARD OF REVIEW APPLICABLE TO
DENIALS OF DISCRETIONARY RELIEF CANNOT BE THE SAME AS THAT FOR
ADJUDICATIONS OF DEPORTABILITY, SINCE JUDICIAL REVIEW OF THE FORMER IS
CONCEDEDLY LIMITED TO DETERMINATIONS OF WHETHER THERE HAS BEEN ANY
ABUSE OF ADMINISTRATIVE DISCRETION.  WHILE PARAGRAPH (4) CLEARLY
APPLIES ONLY TO REVIEW OF ADJUDICATIONS OF DEPORTABILITY, AND POSSIBLY
TO REVIEW OF ADMINISTRATIVE FINDINGS OF ELIGIBILITY FOR DISCRETIONARY
RELIEF, (FN15) THIS IS NOT DECISIVE WITH RESPECT TO THE INTENT OF
CONGRESS.  THE INCLUSION IN ONE OF THE "EXCEPTIONS" TO THE PRINCIPAL
PROVISION OF SEC. 106(A) OF A PROVISO WHICH PRIMARILY COULD APPLY ONLY
TO DETERMINATIONS OF DEPORTABILITY DOES NOT NECESSARILY INDICATE THAT
THE PRINCIPAL PROVISION OF THE SECTION WAS ALSO INTENDED TO BE THUS
LIMITED.  SINCE THE ADJUDICATION OF DEPORTABILITY IS CERTAINLY THE
PRINCIPAL INGREDIENT, AND AN INDISPENSABLE ONE, OF THE ULTIMATE RESULT
OF THE PROCEEDING - A FINAL ORDER OF DEPORTATION - IT WOULD NOT BE
UNUSUAL FOR CONGRESS TO INCLUDE IN AN OVERALL ENACTMENT RELATING TO
JUDICIAL REVIEW OF ALL FINAL ORDERS OF DEPORTATION A SPECIFIC PROVISION
PERTINENT TO THE PRIMARY CONSTITUENT OF SUCH AN ORDER. 

ALSO, IT SEEMS RATHER CLEAR THAT ALL DETERMINATIONS MADE DURING AND
INCIDENT TO THE ADMINISTRATIVE PROCEEDING CONDUCTED BY A SPECIAL
INQUIRY OFFICER, AND REVIEWABLE TOGETHER BY A BOARD OF IMMIGRATION
APPEALS, SUCH AS ORDERS DENYING VOLUNTARY DEPARTURE PURSUANT TO SEC.
244(E) AND ORDERS DENYING THE WITHHOLDING OF DEPORTATION UNDER SEC.
243(H), ARE LIKEWISE INCLUDED WITHIN THE AMBIT OF THE EXCLUSIVE
JURISDICTION OF THE COURTS OF APPEALS UNDER SEC. 106(A).  WE SEE
NOTHING ANOMALOUS ABOUT THE FACT THAT A CHANGE IN THE ADMINISTRATIVE
REGULATIONS MAY EFFECTIVELY BROADEN OR NARROW THE SCOPE OF REVIEW
AVAILABLE IN THE COURTS OF APPEALS.  (FN16)  FURTHERMORE, WE DO NOT
REGARD IT "IN THE LAST DEGREE UNLIKELY" THAT CONGRESS INTENDED A COURT
OF THREE JUDGES TO INITIALLY REVIEW DISCRETIONARY DETERMINATIONS
DENYING SUSPENSION OF DEPORTATION.  MUCH OF THE LITIGATION IN
DEPORTATION CASES WITH RESPECT TO THE SETTING ASIDE OF AN
ADMINISTRATIVE DETERMINATION ON THE GROUND OF ARBITRARINESS INVOLVES
DISPUTED ELIGIBILITY QUESTIONS AND MATTERS OF STATUTORY CONSTRUCTION. 
ADDITIONALLY, THE CONCERN OF THE COURT BELOW DOES NOT COMPORT WITH THE
DECLARED PURPOSE OF SEC. 106(A) TO ELIMINATE THE DISTRICT COURT STAGE
OF THE JUDICIAL REVIEW PROCESS IN AN EFFORT TO PREVENT DILATORY
TACTICS.  AND THE SUGGESTION OF THE COURT BELOW THAT IT IS "INCREDIBLE"
THAT CONGRESS MEANT TO BURDEN THE COURTS OF APPEALS WITH REVIEW OF ALL
ORDERS DENYING DISCRETIONARY RELIEF IN DEPORTATION CASES IS
UNCONVINCING.  CONGRESS PRESUMABLY REALIZED THAT, IN PRACTICAL EFFECT,
THOSE ENGAGED IN DILATORY TACTICS WOULD HARDLY HESITATE TO APPEAL TO A
COURT OF APPEALS FROM AN ADVERSE DISTRICT COURT DETERMINATION WHERE
DISCRETIONARY RELIEF HAD BEEN DENIED IN THE ADMINISTRATIVE PROCEEDING. 
(FN17) 

WE NEED NOT PASS AT THIS TIME ON WHETHER SEC. 106(A) EXTENDS THE
EXCLUSIVE JURISDICTION OF COURTS OF APPEALS TO INCLUDE REVIEW OF ORDERS
REFUSING TO REOPEN DEPORTATION PROCEEDINGS.  (FN18)  THE QUESTION IS
ADMITTEDLY A SOMEWHAT DIFFERENT ONE, SINCE SUCH AN ADMINISTRATIVE
DETERMINATION IS NOT MADE DURING THE SAME PROCEEDING WHERE
DEPORTABILITY IS DETERMINED AND DISCRETIONARY RELIEF IS DENIED.  AND,
OF COURSE, OUR DECISION IN THIS CASE IN NO WAY IMPAIRS THE PRESERVATION
AND AVAILABILITY OF HABEAS CORPUS RELIEF.  (FN19) 

WE BELIEVE THAT THE CONTROLLING INTENTION OF CONGRESS, IN ENACTING
SEC. 106(A), WAS TO PREVENT DELAYS IN THE DEPORTATION PROCESS BY
VESTING IN THE COURTS OF APPEALS SOLE JURISDICTION TO REVIEW "ALL FINAL
ORDERS OF DEPORTATION."  IT SEEMS APPARENT THAT, BECAUSE OF THE
CONSISTENT PRACTICE UNDER THE ADMINISTRATIVE REGULATIONS SINCE 1940 OF
ADJUDICATING DEPORTABILITY AND PASSING ON APPLICATIONS FOR
DISCRETIONARY RELIEF IN THE SAME PROCEEDING, THE FINAL ADMINISTRATIVE
ACTION THAT CONGRESS WAS THINKING OF IN USING THE PHRASE "FINAL ORDERS
OF DEPORTATION" INCLUDED DENIALS OF SUSPENSION OF DEPORTATION.  TO SO
CONSTRUE SEC. 106(A) DOES NOT CONSTITUTE AN EXPANSION OF "THE WORDS
USED BY CONGRESS BEYOND THEIR WELL-UNDERSTOOD MEANING."  BIFURCATION OF
JUDICIAL REVIEW OF DEPORTATION PROCEEDINGS IS NOT ONLY INCONVENIENT; IT
IS CLEARLY UNDESIRABLE AND NOT THE NECESSARY RESULT FROM A FAIR
INTERPRETATION OF THE PERTINENT STATUTORY LANGUAGE.  THEREFORE, THIS
MATTER CAN AND SHOULD BE PASSED UPON BY THE COURTS OF APPEALS,
RESULTING IN A JUDICIAL REVIEW PROCEDURE THAT WOULD BE BOTH FAIR TO THE
PETITIONER AND EXPEDITIOUS FOR THE GOVERNMENT.  THE DECISION BELOW IS
THEREFORE REVERSED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR
FURTHER CONSIDERATION CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE GRANTING OF VOLUNTARY DEPARTURE RELIEF DOES NOT RESULT IN
THE ALIEN'S NOT BEING SUBJECT TO AN OUTSTANDING FINAL ORDER OF
DEPORTATION.  IN THIS CASE, THE ORDER GRANTING VOLUNTARY DEPARTURE WAS
COMBINED WITH A CONTINGENT DEPORTATION ORDER, WHICH DIRECTED THAT
PETITIONER BE DEPORTED IF HE FAILED TO DEPART WITHIN THE PRESCRIBED
TIME AND WAS TO BECOME EFFECTIVE AUTOMATICALLY IF PETITIONER DID NOT
DEPART THE COUNTRY BY THE DATE FIXED BY THE DISTRICT DIRECTOR. 

FN2  IMMIGRATION AND NATIONALITY ACT, SEC. 106, AS ADDED BY SEC. 5(A)
OF PUBLIC LAW 87-301, APPROVED SEPTEMBER 26, 1961, 75 STAT. 651, 8
U.S.C. (SUPP. IV, 1962) SEC. 1105A. 

FN3  COMPARE FONG V. IMMIGRATION AND NATURALIZATION SERVICE, 308 F.2D
191 (C.A. 9TH CIR. 1962), BLAGAIC V. FLAGG, 304 F.2D 623 (C.A. 7TH CIR.
1962), AND ROUMELIOTIS V. IMMIGRATION AND NATURALIZATION SERVICE, 304
F.2D 453 (C.A. 7TH CIR. 1962), CERT. DENIED, 371 U.S. 921, WITH HOLZ V.
IMMIGRATION AND NATURALIZATION SERVICE, 309 F.2D 452 (C.A. 9TH CIR.
1962), ZUPICICH V. ESPERDY, 207 F. SUPP. 574 (D.C.S.D.N.Y. 1962), AND
THE DECISION BELOW. 

FN4  ON OCTOBER 24, 1962, SUBSEQUENT TO THE DECISION BELOW AND WHILE
THE CASE WAS PENDING BEFORE THIS COURT ON PETITION FOR CERTIORARI,
CONGRESS ENACTED PUBLIC LAW 87-885, SEC. 4, 76 STAT. 1247, EFFECTIVE
THE SAME DATE.  THIS ENACTMENT PROVIDES, IN RELEVANT PART, FOR THE
AMENDMENT OF SEC. 244 OF THE ACT, THE SOURCE OF THE ATTORNEY GENERAL'S
POWER TO SUSPEND THE DEPORTATION OF ELIGIBLE CLASSES OF ALIENS, BY THE
ADDITION OF A NEW SUBSECTION, WHICH STATES: "(F) NO PROVISION OF THIS
STATES AS A CREWMAN  ...  ."  ALTHOUGH PETITIONER CONCEDEDLY ENTERED
THE UNITED STATES AS A CREWMAN, AND THE GOVERNMENT HAS INDICATED THAT,
WHEN THE MERITS OF THIS CASE ARE REACHED, IT WILL ARGUE THAT PETITIONER
IS NOW ABSOLUTELY INELIGIBLE FOR THE RELIEF SOUGHT, BECAUSE OF THE 1962
AMENDMENT TO SEC. 244, WE AGREE WITH THE PARTIES THAT THE ENACTMENT OF
THIS AMENDMENT DID NOT NECESSARILY HAVE THE EFFECT OF RENDERING MOOT
THE JURISDICTIONAL ISSUE INVOLVED IN THIS LITIGATION.  THE
APPLICABILITY OF THIS PROVISION TO ONE IN PETITIONER'S SITUATION IS AN
ARGUABLE MATTER, AND, SINCE IT IS NOT UNDISPUTED BUT REMAINS DEBATABLE
WHETHER THE RELIEF SOUGHT BY PETITIONER COULD STILL BE GRANTED, WE HAVE
DETERMINED IT NOT IMPROPER TO CONSIDER AND DECIDE THE THRESHOLD
QUESTION OF THE JURISDICTION OF THE COURT OF APPEALS. 

FN5  HOBBS ACT, 64 STAT. 1129 (1950), AS AMENDED, 5 U.S.C. SEC. 1031
1042, VESTING THE COURTS OF APPEALS WITH EXCLUSIVE JURISDICTION TO
REVIEW FINAL ORDERS OF CERTAIN DESIGNATED FEDERAL AGENCIES. 

FN6  ON THE HISTORY OF THE RECENT CONGRESSIONAL ENACTMENTS RELATING
TO DEPORTATION, SEE COMMENT, 71 YALE L.J. 760 (1962). 

FN7  REGARDING THE EXTENT OF THE ATTORNEY GENERAL'S DISCRETION IN
SUSPENSION OF DEPORTATION CASES, SEE, E.G., JAY V. BOYD, 351 U.S. 345,
354, 357-358 (1956). 

FN8  REPRESENTATIVE WALTER WAS THE CHAIRMAN OF A SUBCOMMITTEE OF THE
HOUSE JUDICIARY COMMITTEE RESPONSIBLE FOR IMMIGRATION AND NATIONALITY
MATTERS, AUTHOR AND CHIEF SPONSOR OF THE MEASURE UNDER CONSIDERATION,
AND A RESPECTED CONGRESSIONAL LEADER IN THE WHOLE AREA OF IMMIGRATION
LAW.  REPRESENTATIVE LINDSAY WAS THOROUGHLY FAMILIAR WITH THE PROBLEMS
IN THIS AREA AND THE ROLE OF DISCRETIONARY DETERMINATIONS DENYING
SUSPENSION IN THE DEPORTATION PROCESS, AS A RESULT OF HAVING
REPRESENTED THE GOVERNMENT, THREE YEARS EARLIER, IN JAY V. BOYD, 351
U.S. 345 (1956).  REPRESENTATIVE MOORE WAS A CO-SPONSOR OF THE BILL
UNDER DISCUSSION AND A MEMBER OF THE HOUSE JUDICIARY COMMITTEE OUT OF
WHICH THE BILL CONTAINING SEC. 106(A) WAS REPORTED. 

FN9  105 CONG. REC. 12728. 

FN10  H.R. REP. NO. 1086, 87TH CONG., 1ST SESS. 22-23 (1961). 

FN11  IN FURTHER ELUCIDATING THE PURPOSE OF THE PROPOSED LEGISLATION
ON THE FLOOR OF THE HOUSE, REPRESENTATIVE WALTER, IN REFERENCE TO ONE
OF THE PREDECESSOR BILLS IN 1958, STATED: "MOST IMPORTANT, BY
ELIMINATING REVIEW IN THE DISTRICT COURTS, THE BILL WOULD OBVIATE ONE
OF THE PRIMARY CAUSES OF DELAY IN THE FINAL DETERMINATION OF ALL
QUESTIONS WHICH MAY ARISE IN A DEPORTATION PROCEEDING."  104 CONG. REC.
17173. 

FN12  ACCORDING TO THE GENERAL COUNSEL OF THE IMMIGRATION AND
NATURALIZATION SERVICE, THE SERVICE'S POLICY AND PRACTICE IS TO STAY
DEPORTATION, SUA SPONTE, WHEN A PETITION TO OBTAIN JUDICIAL REVIEW OF
DETERMINATIONS MADE DURING THE ADMINISTRATIVE PROCEEDINGS IS NOT
"PATENTLY FRIVOLOUS."  SEE COMMENT, 111 U. OF PA. L. REV. 1226, 1230
(1963).  CONSEQUENTLY, TEMPORARY RESTRAINING ORDERS ISSUED BY DISTRICT
COURTS WOULD USUALLY BE UNNECESSARY TO PREVENT DEPORTATION, AND WHETHER
DISTRICT COURTS GRANT RESTRAINING ORDERS RARELY OR FREQUENTLY IS RATHER
IRRELEVANT.  AND THE ASSUMPTION OF THE COURT BELOW THAT, SINCE THE
ATTORNEY GENERAL CAN MOOT THE PROCEEDINGS IN THE DISTRICT COURTS
(UNLESS A RESTRAINING ORDER IS ISSUED) BY DEPORTING THE ALIEN PENDENTE
LITE, ULTIMATE DEPORTATION WOULD BE EXPEDITED BY PERMITTING BIFURCATED
JUDICIAL REVIEW SEEMS UNWARRANTED.  ALSO, AN ASSUMPTION THAT THE
PRACTICE OF DISTRICT COURTS IS MERELY TO ISSUE RESTRAINING ORDERS
PENDING FINAL DISPOSITION IN A COURT OF APPEALS OF ALL OF THE QUESTIONS
PRESENTED FOR JUDICIAL REVIEW IN A DEPORTATION CASE APPEARS
UNJUSTIFIED.  SEE, E.G., ZUPICICH V. ESPERDY, 207 F. SUPP. 574
(D.C.S.D.N.Y. 1962).    FN13  DEPORTABILITY IS CONCEDED IN ABOUT 80% OF
THE CASES.  SEE GORDON AND ROSENFIELD, IMMIGRATION LAW AND PROCEDURE,
SEC. 5.7A, AT 541 (1962).  EVEN SO, THE BIFURCATION PROBLEM REMAINS IN
THAT TYPE OF CASE WHICH PROMPTED THE ENACTMENT OF SEC. 106(A), WHERE
JUDICIAL REVIEW OF BOTH AN ADJUDICATION OF DEPORTABILITY AND A DENIAL
OF DISCRETIONARY RELIEF IS SOUGHT. 

FN14  BECAUSE OF THE EFFECT OF OUR HOLDING HERE, IT IS OF COURSE
UNNECESSARY TO CONSIDER THE GOVERNMENT'S CONTENTION THAT, WHERE
DEPORTABILITY IS ACTUALLY ADJUDICATED, A COURT OF APPEALS HAS "PENDENT
JURISDICTION" TO REVIEW A DENIAL OF DISCRETIONARY RELIEF IN THE SAME
PROCEEDING.    FN15  IN THE INSTANT CASE THE SPECIAL INQUIRY OFFICER
NOT ONLY FOUND THAT PETITIONER FAILED TO MEET THE ELIGIBILITY
REQUIREMENTS FOR SUSPENSION OF DEPORTATION, SINCE NO HARDSHIP WOULD
RESULT FROM HIS DEPORTATION, BUT FURTHER INDICATED THAT, EVEN HAD THE
HARDSHIP REQUIREMENT BEEN MET, RELIEF WOULD HAVE BEEN DENIED AS A
DISCRETIONARY MATTER.  SINCE A SPECIAL INQUIRY OFFICER CANNOT EXERCISE
HIS DISCRETION TO SUSPEND DEPORTATION UNTIL HE FINDS THE ALIEN
STATUTORILY ELIGIBLE FOR SUSPENSION, A FINDING OF ELIGIBILITY AND AN
EXERCISE OF (OR REFUSAL TO EXERCISE) DISCRETION MAY PROPERLY BE
CONSIDERED AS DISTINCT AND SEPARATE MATTERS.  AND SINCE THE FINDING OF
ELIGIBILITY INVOLVES QUESTIONS OF FACT AND LAW, PARAGRAPH (4) OF SEC.
106(A) MIGHT BE READ TO REQUIRE THAT THIS FINDING BE BASED ON
SUBSTANTIAL EVIDENCE IN THE RECORD.  SEE COMMENT, 111 U. OF PA. L. REV.
1226, 1229 (1963).  HOWEVER, WE NEED NOT PASS ON THIS QUESTION HERE. 
AND, OF COURSE, DENIAL OF SUSPENSION OF DEPORTATION AS A DISCRETIONARY
MATTER IS REVIEWABLE ONLY FOR ARBITRARINESS AND ABUSE OF DISCRETION,
AND THUS COULD HARDLY BE WITHIN THE PROCEDURAL AND EVIDENTIARY
REQUISITES OF PARAGRAPH (4). 

FN16 WHEN SEC. 106(A) WAS ENACTED, THE WITHHOLDING OF DEPORTATION
UNDER SEC. 243(H) WAS A MATTER DETERMINED BY AN OFFICIAL OTHER THAN THE
SPECIAL INQUIRY OFFICER CONDUCTING THE DEPORTATION HEARING, ON A LATER
OCCASION, UNDER REGULATIONS PROMULGATED BY THE ATTORNEY GENERAL, AND
THE DESIGNATION OF THE COUNTRY OF DEPORTATION WAS NOT MADE UNTIL AFTER
THE ISSUANCE OF THE WARRANT OF DEPORTATION.  UNDER REVISED AND
CURRENTLY EFFECTIVE REGULATIONS, BOTH THE DESIGNATION OF THE COUNTRY OF
DEPORTATION AND THE DECISION OF ANY SEC. 243(H) REQUEST FOR RELIEF
WHICH THE ALIEN MIGHT WISH TO MAKE ARE EFFECTED IN THE DEPORTATION
PROCEEDINGS AND REFLECTED IN THE FINAL ORDER OF DEPORTATION.  WHILE
PRESUMABLY DENIALS OF SEC. 243(H) RELIEF WERE NOT COVERED BY SEC.
106(A) AT THE TIME OF ITS ENACTMENT, IT DOES NOT SEEM INCONGRUOUS TO
ASSUME THAT SUCH ORDERS, BECAUSE OF THE CHANGE IN ADMINISTRATIVE
REGULATIONS MAKING SUCH DECISIONS AN INTEGRAL PART OF THE DEPORTATION
PROCEEDINGS CONDUCTED BY A SPECIAL INQUIRY OFFICER, ARE NOW WITHIN THE
REACH OF SEC. 106(A)'S JUDICIAL REVIEW PROVISIONS.  SUCH A RESULT
SIMPLY MEANS THAT, WHILE THE JURISDICTION OF THE COURTS OF APPEALS IS
LIMITED NOW, AS WHEN SEC. 106(A) WAS ENACTED, TO THE REVIEW OF "ALL
FINAL ORDERS OF DEPORTATION," A CHANGE IN THE ADMINISTRATIVE
REGULATIONS RELATING TO THE PROCESSING AND DETERMINATION OF
APPLICATIONS FOR SEC. 243(H) RELIEF HAD THE INCIDENTAL EFFECT OF
EXPANDING THE DECISIONAL CONTENT OF SUCH ORDERS.  CLEARLY, CHANGES IN
ADMINISTRATIVE PROCEDURES MAY AFFECT THE SCOPE AND CONTENT OF VARIOUS
TYPES OF AGENCY ORDERS AND THUS THE SUBJECT MATTER EMBRACED IN A
JUDICIAL PROCEEDING TO REVIEW SUCH ORDERS. 

FN17  COMPARE, HOWEVER, 308 F.2D, AT 785, N. 6, WHERE THE COURT BELOW
REFERRED TO THE "INARTICULATE PREMISE THAT ALL DEPORTATION SUITS ARE
APPEALED  ...  " FROM DISTRICT COURTS TO COURTS OF APPEALS. 

FN18  THE COURT BELOW MANIFESTED ITS CONCERN THAT, IF IT WERE TO FIND
THAT IT HAD JURISDICTION IN THIS CASE, THE DOOR WOULD THEN BE OPENED TO
THE OBTAINING OF REVIEW OF A REFUSAL TO REOPEN A DEPORTATION PROCEEDING
IN THE COURTS OF APPEALS.  308 F.2D, AT 785.  AND THE GOVERNMENT HAS
ARGUED IN ITS BRIEF THAT, ALTHOUGH THE QUESTION IS A CLOSE ONE, AN
ORDER REFUSING TO REOPEN A DEPORTATION PROCEEDING SHOULD BE REGARDED AS
WITHIN THE PROVISIONS OF SEC. 106(A) WITH RESPECT TO JUDICIAL REVIEW IN
THE COURTS OF APPEALS, THOUGH OCCURRING SUBSEQUENT TO THE ISSUANCE OF A
FINAL DEPORTATION ORDER.  BRIEF FOR RESPONDENT, PP. 51-54.  COMPARE
GIOVA V. ROSENBERG, 308 F.2D 347 (C.A. 9TH CIR. 1962), PETITION FOR
CERT. PENDING, NO. 15, MISC., OCTOBER TERM, 1963.  CF. DENTICO V.
IMMIGRATION AND NATURALIZATION SERVICE, 303 F.2D 137 (C.A.2D CIR.
1962), HOLDING THAT COURTS OF APPEALS HAVE EXCLUSIVE JURISDICTION TO
REVIEW DENIALS OF MOTIONS TO REOPEN DEPORTATION PROCEEDINGS, WHERE
REVIEW OF A FINAL ORDER OF DEPORTATION IS SOUGHT AT THE SAME TIME. 

FN19  COMPARE THE PROVISIONS OF SEC. 106(C) PURPORTING TO RESTRICT
THE AVAILABILITY OF HABEAS CORPUS RELIEF IN DEPORTATION CASES.  BUT SEE
THE PROVISIONS OF SEC. 106(A)(9) WITH RESPECT TO THE AVAILABILITY OF
HABEAS CORPUS RELIEF TO ALIENS HELD IN CUSTODY PURSUANT TO A
DEPORTATION ORDER. 

MR. JUSTICE HARLAN, CONCURRING. 

BELIEVING THAT A JURISDICTIONAL STATUTE OF THIS KIND SHOULD BE
CIRCUMSPECTLY CONSTRUED, CF. KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369
U.S. 153, 156-157, AND RECOGNIZING THE FORCE OF THE CONSIDERATIONS
WHICH CONCERNED THE MAJORITY OF THE COURT OF APPEALS, 308 F.2D 779, I
AM NEVERTHELESS SATISFIED THAT THE LEGISLATIVE HISTORY OF SEC. 106(A)
OF THE IMMIGRATION AND NATIONALITY ACT LEAVES NO ROOM FOR A CONCLUSION
OTHER THAN THAT WHICH THE COURT HAS REACHED. 

I THEREFORE CONCUR IN THE JUDGMENT. 
..END :
















MEYER V. UNITED STATES 375 U.S. 233 


NO. 61.  ARGUED OCTOBER 24, 1963.  - DECIDED DECEMBER 16, 1963.  - 309
F.2D 131, REVERSED. 


PETITIONER'S HUSBAND OWNED FOUR LIFE INSURANCE POLICIES WHICH NAMED
PETITIONER, HIS WIFE, AS BENEFICIARY.  HE PLEDGED THEM TO A BANK AS
COLLATERAL SECURITY FOR A LOAN.  SUBSEQUENTLY, THE COMMISSIONER OF
INTERNAL REVENUE ASSESSED AGAINST THE INSURED DEFICIENCIES COVERING
INCOME TAXES DUE BY HIM AND FILED NOTICE OF A TAX LIEN FOR SUCH
DEFICIENCIES, PLUS INTEREST.  AFTER THE DEATH OF THE INSURED, THE
INSURANCE COMPANY PAID THE FULL AMOUNT OF THE LOAN TO THE BANK AND THE
REMAINING PROCEEDS OF THE POLICIES TO PETITIONER.  THE UNITED STATES
SUED PETITIONER INDIVIDUALLY AND AS EXECUTRIX OF HER HUSBAND'S ESTATE
FOR THE FULL AMOUNT OF THE TAXES DUE.  PETITIONER TENDERED THE
DIFFERENCE BETWEEN THE CASH SURRENDER VALUE OF THE POLICIES AND THE
AMOUNT PAID TO THE BANK BUT CLAIMED THE REMAINDER AS EXEMPT UNDER A
STATE LAW WHICH EXEMPTED THE PROCEEDS OF LIFE INSURANCE POLICIES FROM
LEVY BY CREDITORS OF THE INSURED.  HELD:  THE TAX LIEN COULD NOT BE
SATISFIED OUT OF THAT PORTION OF THE PROCEEDS OF THE LIFE INSURANCE
POLICIES THAT REPRESENTED THE CASH SURRENDER VALUE BY MARSHALING THE
FUNDS AND PAYING THE BANK'S CLAIM FROM THE REMAINDER OF THE PROCEEDS,
SINCE THE EQUITABLE DOCTRINE OF MARSHALING OF ASSETS IS NOT APPLICABLE
TO ASSETS EXEMPTED BY STATE LAW FROM LEVY BY CREDITORS.  PP. 233-240. 

MEYER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE ISSUE IN THIS CASE IS THE APPLICABILITY OF THE DOCTRINE
OF MARSHALING OF ASSETS.  THE GOVERNMENT URGES THAT IT BE APPLIED TO
EFFECT THE COLLECTION OF ITS JUNIOR INCOME TAX LIEN ON THE CASH
SURRENDER VALUE OF CERTAIN LIFE INSURANCE POLICIES.  THE SENIOR LIEN IS
SECURED BY THE ENTIRE PROCEEDS OF THE POLICIES AND ABSORBS PRACTICALLY
ALL OF THEIR CASH SURRENDER VALUE.  THE PROCEEDS OF THE POLICIES ARE
EXEMPT FROM LEVY BY CREDITORS OF THE INSURED UNDER STATE LAW. 

IN 1943 THE DECEASED, PETER MEYER, PLEDGED HIS INSURANCE POLICIES TO
A BANK AS COLLATERAL SECURITY FOR A LOAN, GIVING THE BANK THE RIGHT TO
SATISFY ITS CLAIM OUT OF THE "NET PROCEEDS OF THE POLICY WHEN IT
BECOMES A CLAIM BY DEATH."  WHEN MR. MEYER DIED, THE INSURANCE COMPANY
PAID THE AMOUNT OF THE LOAN TO THE BANK AND THE BALANCE TO THE
PETITIONER, MR. MEYER'S WIDOW AND BENEFICIARY.  THE COMMISSIONER
CLAIMS, HOWEVER, THAT THE INSURANCE PROCEEDS MUST BE MARSHALED, THAT
THE GOVERNMENT'S ADMITTEDLY JUNIOR TAX LIEN MUST BE PAID FROM THE CASH
SURRENDER VALUE OF THE POLICIES AND THE BANK FROM THE REMAINING
PROCEEDS.  THE DISTRICT COURT AGREED, 202 F. SUPP. 606, AND THE COURT
OF APPEALS AFFIRMED, 309 F.2D 131.  WE GRANTED CERTIORARI BECAUSE OF
THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE INCOME TAX
LAWS.  372 U.S. 934.  WE DISAGREE WITH BOTH COURTS AND REVERSE THE
JUDGMENT. 

 I. 

PETER MEYER OWNED FOUR LIFE INSURANCE POLICIES WHICH NAMED THE
PETITIONER, HIS WIFE, AS BENEFICIARY.  THEIR FACE AMOUNT WAS $50,000
AND THEIR CASH SURRENDER VALUE AT HIS DEATH WAS $27,285.87.  HE HAD
RETAINED THE USUAL POWERS UNDER SUCH POLICIES, NAMELY, TO CHANGE THE
BENEFICIARIES, DEMAND THE CASH SURRENDER VALUE AND ASSIGN THE
POLICIES.  IN 1943, LONG BEFORE THE TAX ASSESSMENTS IN THIS SUIT, HE
ASSIGNED THE POLICIES AS COLLATERAL SECURITY FOR THE REPAYMENT OF A
LOAN FROM THE HUNTINGTON NATIONAL BANK OF COLUMBUS, OHIO.  THE BANK WAS
GIVEN THE RIGHT, IN THE EVENT OF DEATH, TO SATISFY ITS CLAIM OUT OF THE
"NET PROCEEDS OF THE POLICY WHEN IT BECOMES A CLAIM BY DEATH."  AT THE
TIME OF MEYER'S DEATH, $26,844.66 WAS DUE ON THIS LOAN. 

IT IS NOT DISPUTED THAT THE COMMISSIONER ASSESSED DEFICIENCIES
COVERING INCOME TAXES DUE BY MR. MEYER FOR THE YEARS 1945 AND 1946,
WITH A BALANCE OF $6,159.09 PLUS INTEREST DUE AT HIS DEATH, AND THAT
NOTICE OF LIEN WAS FILED IN 1955.  MEYER DIED ON DECEMBER 28, 1955, AND
PETITIONER WAS NAMED EXECTRIX OF HIS ESTATE.  AFTER THE INSURANCE
COMPANY PAID THE FULL AMOUNT OF THE LOAN TO THE BANK AND THE BALANCE
REMAINING DUE ON THE POLICIES TO THE PETITIONER, THIS SUIT WAS BEGUN
AGAINST PETITIONER, INDIVIDUALLY AND AS EXECUTRIX, FOR THE RECOVERY OF
THE FULL AMOUNT OF THE TAXES DUE.  PETITIONER TENDERED THE SUM OF
$441.21, THE DIFFERENCE BETWEEN THE CASH SURRENDER VALUE AND THE AMOUNT
PAID TO THE BANK, BUT CLAIMED THE REMAINDER AS EXEMPT UNDER NEW YORK
INSURANCE LAW SEC. 166.*  THE DISTRICT COURT, HOWEVER, GRANTED SUMMARY
JUDGMENT FOR THE GOVERNMENT ON THE THEORY THAT THE TAX LIEN COULD BE
SATISFIED OUT OF THAT PORTION OF THE PROCEEDS THAT REPRESENTED THE CASH
SURRENDER VALUE BY MARSHALING THE FUNDS AND PAYING THE BANK'S CLAIM
FROM THE REMAINDER OF THE PROCEEDS.  IT FOLLOWED THE HOLDING OF THE
SECOND CIRCUIT IN UNITED STATES V. BEHRENS, 230 F.2D 504.  THE COURT OF
APPEALS AFFIRMED ON THE SAME BASIS.  WE CANNOT AGREE. 

*"1.  IF ANY POLICY OF INSURANCE HAS BEEN OR SHALL BE EFFECTED BY ANY
PERSON ON HIS OWN LIFE IN FAVOR OF A THIRD PERSON BENEFICIARY, OR MADE
PAYABLE, BY ASSIGNMENT, CHANGE OF BENEFICIARY OR OTHERWISE, TO A THIRD
PERSON, SUCH THIRD PERSON BENEFICIARY, ASSIGNEE OR PAYEE SHALL BE
ENTITLED TO THE PROCEEDS AND AVAILS OF SUCH POLICY AS AGAINST THE
CREDITORS, PERSONAL REPRESENTATIVES, TRUSTEES IN BANKRUPTCY AND
RECEIVERS IN STATE AND FEDERAL COURTS OF THE PERSON EFFECTING THE
INSURANCE."  NEW YORK INSURANCE LAW SEC. 166. 

                        II. 

THIS COURT HAS HELD AND THE PARTIES DO NOT DISPUTE THAT:  ABSENT A
LIEN, RECOVERY OF UNPAID FEDERAL INCOME TAXES FROM A BENEFICIARY OF
INSURANCE CAN BE HAD ONLY TO THE EXTENT THAT APPLICABLE STATE LAW
PERMITS SUCH RECOVERY BY OTHER CREDITORS OF THE INSURED, COMMISSIONER
V. STERN, 357 U.S. 39, 46-47 (1958); THE INSURED TAXPAYER'S "PROPERTY
AND RIGHTS TO PROPERTY" UNDER SEC. 3670 OF THE INTERNAL REVENUE CODE OF
1939 ARE MEASURED BY THE POLICY CONTRACT AS ENFORCED BY APPLICABLE
STATE LAW, UNITED STATES V. BESS, 357 U.S. 51, 55-56 (1958); THE CASH
SURRENDER VALUE OF AN INSURANCE POLICY, WHERE SUBJECT TO THE CONTROL OF
THE INSURED, IS "PROPERTY AND RIGHTS TO PROPERTY" UNDER THE SECTION,
ID., AT 59; FINALLY, THE PRIORITY OF LIENS IS DETERMINED BY THE
PRINCIPLE "FIRST IN TIME, FIRST IN RIGHT," UNITED STATES V. NEW
BRITAIN, 347 U.S. 81 (1954).  APPLYING NEW YORK LAW, THIS RESULTS IN
THE BANK'S LIEN BEING THE SENIOR ONE ON THE ENTIRE PROCEEDS OF THE
POLICIES WITH THE TAX LIEN ONLY ATTACHING TO THE CASH SURRENDER VALUE
SUBJECT TO THE BANK'S CLAIM.  THE NARROW QUESTION REMAINING OF ASSETS
IS COMPELLED. 

                                   III. 

THIS COURT HAS SAID THAT "THE EQUITABLE DOCTRINE OF MARSHALING RESTS
UPON THE PRINCIPLE THAT A CREDITOR HAVING TWO FUNDS TO SATISFY HIS
DEBT, MAY NOT BY HIS APPLICATION OF THEM TO HIS DEMAND, DEFEAT ANOTHER
CREDITOR, WHO MAY RESORT TO ONLY ONE OF THE FUNDS."  SOWELL V. FEDERAL
RESERVE BANK, 268 U.S. 449, 456-457 (1925).  THE COURTS OF APPEALS OF
TWO CIRCUITS HAVE APPLIED THE DOCTRINE, DESPITE STATE LAW, TO THE
COLLECTION OF FEDERAL TAX LIENS.  UNITED STATES V. BEHRENS, SUPRA, AND
UNITED STATES V. WINTNER, 200 F. SUPP. 157, AFF'D 312 F.2D 749 (C.A.
6TH CIR.).  WE NOTE, HOWEVER, THAT BEHRENS ANTEDATES OUR STERN AND BESS
OPINIONS AS WELL AS THOSE IN AQUILINO V. UNITED STATES, 363 U.S. 509
(1960), AND UNITED STATES V. DURHAM LUMBER CO., 363 U.S. 522 (1960). 
THESE LATTER TWO CASES HELD THAT COMPETING LIENS OF THE GOVERNMENT FOR
TAXES AND OF SUBCONTRACTORS FOR LABOR AND MATERIALS TO A FUND DUE THE
TAXPAYER UNDER A GENERAL CONSTRUCTION CONTRACT WERE CONTROLLED BY
APPLICABLE STATE LAW.  THIS COURT HAS NEVER APPLIED THE DOCTRINE OF
MARSHALING TO FEDERAL INCOME TAX LIENS ALTHOUGH IT DID DENY THE
PETITION FOR CERTIORARI FILED IN THE BEHRENS CASE, SUPRA, 351 U.S.
919.  NOR HAS THE CONGRESS SEEN FIT TO LAY DOWN ANY RULES WITH
REFERENCE TO THE APPLICATION OF THE DOCTRINE, APPARENTLY LEAVING THE
PROBLEM TO THIS COURT. 

                                   IV. 

IN CONSIDERING THE RELEVANCE OF THE DOCTRINE HERE IT IS WELL TO
REMEMBER THAT MARSHALING IS NOT BOTTOMED ON THE LAW OF CONTRACTS OR
LIENS.  IT IS FOUNDED INSTEAD IN EQUITY, BEING DESIGNED TO PROMOTE FAIR
DEALING AND JUSTICE.  ITS PURPOSE IS TO PREVENT THE ARBITRARY ACTION OF
A SENIOR LIENOR FROM DESTROYING THE RIGHTS OF A JUNIOR LIENOR OR A
CREDITOR HAVING LESS SECURITY.  IT DEALS WITH THE RIGHTS OF ALL WHO
HAVE AN INTEREST IN THE PROPERTY INVOLVED AND IS APPLIED ONLY WHEN IT
CAN BE EQUITABLY FASHIONED AS TO ALL OF THE PARTIES.  THUS, STATE
COURTS HAVE REFUSED TO APPLY IT WHERE STATE-CREATED HOMESTEAD
EXEMPTIONS WOULD BE DESTROYED, SIMS V. MCFADDEN, 217 ARK. 810, 233
S.W.2D 375; OR WHERE THE RIGHTS OF INSURANCE BENEFICIARIES WOULD BE
ADVERSELY AFFECTED, BURNS V. FIRST TRUST & DEPOSIT CO., 250 APP.  DIV.
370, 295 N.Y. SUPP. 412; OR WHERE THE RIGHTS OF THIRD PARTIES HAVING
EQUAL EQUITY WOULD BE PREJUDICED, BARBIN V. MOORE, 85 N.H. 362, 159 A.
409; OR WHERE THE "HEAD OF THE HOUSEHOLD" EXEMPTION WAS INVOLVED,
WESTGROVE SAVINGS BANK V. DUNLAVY, 190 IOWA 1054, 181 N.W. 404, AND
PUGH V. WHITSITT & GUERRY, 161 S.W. 953 (TEX. CT. CIV. APP.).  FEDERAL
COURTS HAVE LIKEWISE ACCEPTED THIS PRINCIPLE OF THE NONAPPLICABILITY OF
THE DOCTRINE WHERE, AS HERE, ONE OF THE FUNDS IS EXEMPT UNDER STATE
LAW.  SEE IN RE BAILEY, 176 F. 990, WHERE A STATE LEGISLATIVE HOMESTEAD
EXEMPTION WAS HELD TO BE A SUPERIOR EQUITY IN THE HANDS OF A BANKRUPT,
PREVENTING THE MARSHALING OF ASSETS TO HIS DISADVANTAGE; ROBERT MOODY &
SON V. CENTURY SAVINGS BANK, 239 U.S. 374, 378 (1915), WHERE IOWA'S
REQUIREMENT THAT A HOMESTEAD, EVEN WHEN VALIDLY MORTAGAGED, MAY BE SOLD
ONLY FOR A DEFICIENCY REMAINING AFTER EXHAUSTING ALL OTHER PROPERTY WAS
DECLARED AVAILABLE TO A JUNIOR MORTGAGEE TO PREVENT A MARSHALING OF
ASSETS; AND LOCKWOOD V. EXCHANGE BANK, 190 U.S. 294, 300-301 (1903),
WHERE A WAIVER OF STATE EXEMPTION STATUTES WAS HELD TO HAVE NO EFFECT
IN BANKRUPTCY SINCE THE TITLE TO THE EXEMPTED PROPERTY REMAINED IN THE
BANKRUPT AND NEVER REACHED THE TRUSTEE'S HANDS.  IT, THEREFORE, SEEMS
CLEAR THAT THE COURTS HAVE CONSIDERED STATE EXEMPTION STATUTES WHEN
WEIGHING THE EQUITIES BETWEEN PARTIES TO DETERMINE THE APPLICABILITY OF
THE MARSHALING DOCTRINE.  THIS IS IN LINE WITH THAT DEFERENCE TO STATE
LAW OF OUR RECENT CASES, DISCUSSED ABOVE, HOLDING THAT STATE LAW
CONTROLS THE DETERMINATION OF WHAT IS INCLUDED WITHIN THE "PROPERTY OR
RIGHT TO PROPERTY" COVERED BY SEC. 3670 AND UPON WHICH THE FEDERAL TAX
LIEN COULD ATTACH.  IN ADDITION, THIS COURT IN UNITED STATES V.
BROSNAN, 363 U.S. 237 (1960), WHEN FACED WITH A COMPARABLE PROBLEM
INVOLVING COLLECTION OF FEDERAL TAXES, FOUND: 

"IT DESIRABLE TO ADOPT AS FEDERAL LAW STATE LAW GOVERNING DIVESTITURE
OF FEDERAL TAX LIENS, EXCEPT TO THE EXTENT THAT CONGRESS MAY HAVE
ENTERED THE FIELD.  IT IS TRUE THAT SUCH LIENS FORM PART OF THE
MACHINERY FOR THE COLLECTION OF FEDERAL TAXES  ...  .  HOWEVER, WHEN
CONGRESS RESORTED TO THE USE OF LIENS, IT CAME INTO AN AREA OF COMPLEX
PROPERTY RELATIONSHIPS LONG SINCE SETTLED AND REGULATED BY STATE LAW
...  .  WE THINK IT MORE HARMONIOUS WITH THE TENETS OF OUR FEDERAL
SYSTEM AND MORE CONSISTENT WITH WHAT CONGRESS HAS ALREADY DONE IN THIS
AREA, NOT TO INJECT OURSELVES INTO THE NETWORK OF COMPETING PRIVATE
PROPERTY INTERESTS, BY DISPLACING WELL-ESTABLISHED STATE PROCEDURES
GOVERNING THEIR ENFORCEMENT, OR SUPERIMPOSING ON THEM A NEW FEDERAL
RULE."  AT 241-242. 

CONGRESS HAS NOT SEEN FIT TO CHANGE THE RULES THIS COURT FASHIONED IN
THESE CASES.  INDEED, IT HAS NOT ONLY PERMITTED THEM TO STAND BUT, AS
WAS SAID IN HOLDEN V. STRATTON, 198 U.S. 202, 213-214 (1905), "IT HAS
ALWAYS BEEN THE POLICY OF CONGRESS, BOTH IN GENERAL LEGISLATION AND IN
BANKRUPT ACTS, TO RECOGNIZE AND GIVE EFFECT TO THE STATE EXEMPTION
LAWS."  THERE ARE MANY EXAMPLES, AMONG WHICH IS THE INCORPORATION IN
THE BANKRUPTCY LAW OF THE EXEMPTIONS MADE AVAILABLE BY THE STATE OF A
BANKRUPT'S DOMICILE.  SEE 52 STAT. 847, 11 U.S.C. SEC. 24.  THIS
INCLUDES THE EXEMPTION OF LIFE INSURANCE PROCEEDS.  SEE HOLDEN V.
STRATTON, SUPRA, AT 212-213.  IN ADDITION, OTHER EXEMPTIONS HAVE BEEN
ADDED FROM TIME TO TIME, SUCH AS THE EXCLUSION FROM TAXATION OF THE
BENEFITS FROM LIFE INSURANCE POLICIES, INTERNAL REVENUE CODE OF 1954,
SEC. 101(A), AND THE EXCEPTION OF LIFE INSURANCE BENEFITS IN WHICH THE
SURVIVING SPOUSE HAS EXCLUSIVE POWER OF APPOINTMENT FROM THE RULE THAT
TERMINAL INTERESTS MAY NOT QUALIFY FOR THE MARITAL DEDUCTION, INTERNAL
REVENUE CODE OF 1954, SEC. 2056(B)(6). 

WE CANNOT OVERLOOK THIS LONG-ESTABLISHED POLICY.  IN THE ABSENCE OF A
DEFINITIVE STATUTORY RULE TO THE CONTRARY WE THEREFORE ADOPT THE STATE
RULE AND REFUSE TO EXTEND THE EQUITABLE DOCTRINE OF MARSHALING ASSETS
TO THIS SITUATION.  NEW YORK HAS A SPECIFIC STATUTE WHICH EXEMPTS
INSURANCE BENEFITS OF A WIDOW FROM THE CLAIM OF CREDITORS OF HER
HUSBAND'S ESTATE AND ITS COURTS HAVE REFUSED TO MARSHAL ASSETS WHERE TO
DO SO WILL DIMINISH THOSE RIGHTS.  BRUNS V. FIRST TRUST & DEPOSIT CO.,
SUPRA.  TO APPLY MARSHALING IN THIS CASE WOULD OVERTURN NEW YORK'S
BENEFICENT POLICY AND, IN ADDITION, WOULD ENLARGE THE FEDERAL TAX LIEN
THAT THE CONGRESS HAS PROVIDED IN SEC. 3670.  THIS WE WILL NOT DO.  THE
JUDGMENT IS THEREFORE REVERSED. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART CONCUR, DISSENTING. 

I CANNOT FOR SEVERAL REASONS JOIN THE COURT IN REVERSING THE
DECISION OF THE COURT OF APPEALS. 

1.  IT IS, OF COURSE, FEDERAL LAW WHICH SHOULD RULE THIS CASE.  WE
ARE DEALING HERE WITH A FEDERAL INCOME TAX LIEN, CREATED BY
CONGRESSIONAL ENACTMENT.  PROBLEMS OF INTERPRETATION UNDER THAT
LEGISLATION ARE FEDERAL PROBLEMS, AND SHOULD BE GOVERNED AS NEARLY AS
MAY BE, BY PRINCIPLES OF UNIFORM APPLICATION THROUGHOUT THE VARIOUS
STATES.  DETERMINING THE PRIORITY OF SEC. 3670 LIENS BY REFERENCE TO
STATE LAW MAY PERMIT THE UNITED STATES TO ASSERT ITS LIEN IN ONE STATE
BUT FORBID IT IN ANOTHER IN PRECISELY THE SAME CIRCUMSTANCES. 

THE VERY PROPOSITION UPON WHICH THE COURT'S DECISION SEEMS TO REST -
THAT THE GOVERNMENT'S LIEN UNDER SEC. 3670 DEPENDS ON WHETHER STATE LAW
RECOGNIZES SIMILAR LIENS ASSERTED BY PRIVATE CREDITORS - WAS REJECTED
IN UNITED STATES V. BESS, 357 U.S. 51, WHERE IT WAS ARGUED THAT THE
UNITED STATES HAD NO CLAIM AGAINST THE CASH SURRENDER VALUE OF
INSURANCE POLICIES BECAUSE A NEW JERSEY STATUTE BARRED THE SIMILAR
CLAIMS OF PRIVATE CREDITORS.  THIS COURT LOOKED TO LOCAL LAW TO
DETERMINE WHETHER THE TAXPAYER HAD "SUFFICIENT INTERESTS  ...  TO
SATISFY THE REQUIREMENTS OF SEC. 3670" BUT DECLARED STATE LAW
"INOPERATIVE TO PREVENT THE ATTACHMENT OF LIENS CREATED BY FEDERAL
STATUTES IN FAVOR OF THE UNITED STATES  ...  .  THE FACT THAT IN SEC.
3691 CONGRESS PROVIDED SPECIFIC EXEMPTIONS FROM DISTRAINT IS EVIDENCE
THAT CONGRESS DID NOT INTEND TO RECOGNIZE FURTHER EXEMPTIONS WHICH
WOULD PREVENT ATTACHMENT OF LIENS UNDER SEC. 3670."    THE BASIC
PRINCIPLE IN BESS WAS FURTHER AMPLIFIED BY AQUILINO V. UNITED STATES,
363 U.S. 509, AND UNITED STATES V. DURHAM LUMBER CO., 363 U.S. 522,
WHERE THE FOLLOWING GUIDELINES WERE LAID DOWN: 

"AS WE HELD ONLY TWO TERMS AGO, SECTION 3670 'CREATES NO PROPERTY
RIGHTS BUT MERELY ATTACHES CONSEQUENCES, FEDERALLY DEFINED, TO RIGHTS
CREATED UNDER STATE LAW  ...  .'  UNITED STATES V. BESS, 357 U.S. 51,
55.  HOWEVER, ONCE THE TAX LIEN HAS ATTACHED TO THE TAXPAYER'S STATE
CREATED INTERESTS, WE ENTER THE PROVINCE OF FEDERAL LAW, WHICH WE HAVE
CONSISTENTLY HELD DETERMINES THE PRIORITY OF COMPETING LIENS ASSERTED
AGAINST THE TAXPAYER'S 'PROPERTY' OR 'RIGHTS TO PROPERTY.'  (CITING
CASES IN THIS COURT.)  THE APPLICATION OF STATE LAW IN ASCERTAINING THE
TAXPAYER'S PROPERTY RIGHTS AND OF FEDERAL LAW IN RECONCILING THE CLAIMS
OF COMPETING LIENORS IS BASED BOTH UPON LOGIC AND SOUND LEGAL
PRINCIPLES.  THIS APPROACH STRIKES A PROPER BALANCE BETWEEN THE
LEGITIMATE AND TRADITIONAL INTEREST WHICH THE STATE HAS IN CREATING AND
DEFINING THE PROPERTY INTEREST OF ITS CITIZENS, AND THE NECESSITY FOR A
UNIFORM ADMINISTRATION OF THE FEDERAL REVENUE STATUTES."  363 U.S., AT
513-514. 

UNDOUBTEDLY THE DECEASED TAXPAYER HERE POSSESSED PROPERTY - THE CASH
SURRENDER VALUE OF INSURANCE POLICIES - TO WHICH THE TAX LIEN ATTACHED
BY THE FORCE OF FEDERAL LAW.  THE PROBLEM REMAINING IS THE
RECONCILIATION OF THE COMPETING CLAIMS TO THE PROCEEDS.  UNDER BESS,
AQUILINO AND DURHAM THE PROBLEM MUST BE SOLVED AS A MATTER OF FEDERAL
LAW.  STATE LAW MAY BE ONE OF THE SOURCES GUIDING THE FORMATION OF
FEDERAL POLICY, BUT ACCORDING TO PRIOR CASES IN COURT, IT IS NOT
CONTROLLING AND DOES NOT HAVE THE COMPELLING FORCE GIVEN IT BY THE
COURT. 

2.  WHATEVER FORCE LOCAL LAW IS TO HAVE, HOWEVER, I FIND IT DIFFICULT
TO ACCEPT THE COURT'S EXPOSITION OF NEW YORK POLICY. 

INSURANCE BENEFITS FROM THE CLAIMS OF CREDITORS OF THE DECEASED
INSURED.  OBVIOUSLY, HOWEVER, NO PART OF THE PROCEEDS OF THE POLICY,
WHETHER CASH SURRENDER VALUE OR OTHERWISE, IS PROTECTED FROM THE CLAIMS
OF THE SECURED CREDITOR WHO HAS TAKEN AN ASSIGNMENT OF THE POLICY AS
COLLATERAL SECURITY DURING THE LIFETIME OF THE INSURED.  THIS IS
APPARENT FROM THE FACE OF THE STATUTE ITSELF, (FN1) AND IN THIS VERY
CASE NO QUESTION HAS BEEN RAISED ABOUT THE RIGHTS OF THE BANK, SURELY A
CREDITOR, TO COLLECT EVERY DOLLAR OWED TO IT FROM THE PROCEEDS OF THE
POLICY.  LIKEWISE, HAD THERE BEEN NO BANK LOAN HERE, OR HAD IT BEEN
PAID BY THE INSURED PRIOR TO HIS DEATH, IT IS CONCEDED THAT THE FEDERAL
TAX LIEN WOULD BE SATISFIED FROM THE PROCEEDS TO THE EXTENT OF THE CASH
SURRENDER VALUE.  IN FACT, THE BENEFICIARY IN THIS CASE PAID OVER TO
THE UNITED STATES THE PORTION OF THE CASH SURRENDER VALUE REMAINING
AFTER THE DEBT OF THE BANK HAD BEEN PAID. 

NEW YORK, THEREFORE, CANNOT BE SAID TO HAVE A POLICY OF INSULATING
THE PROCEEDS OF INSURANCE POLICIES FROM THE CLAIMS OF CREDITORS WHO
HAVE ACQUIRED A SECURITY INTEREST IN THE PROCEEDS DURING THE LIFETIME
OF THE INSURED.  THE INSURED IN THIS CASE, THE OWNER OF THE POLICY,
COULD CHANGE THE BENEFICIARY AND DESTROY THE LATTER'S INTEREST
ENTIRELY.  HE COULD LIKEWISE ENCUMBER THE PROCEEDS AND LIMIT THE
BENEFICIARY'S RIGHTS TO THE NET AMOUNT REMAINING AFTER THE PAYMENT OF
CREDITORS WITH LIENS ON THE PROCEEDS.  THE PROTECTED INTEREST OF THE
BENEFICIARY EXTENDS ONLY TO THE NET PROCEEDS.  IN RE KELLY'S ESTATE,
251 APP. DIV. 847, 296 N.Y. SUPP. 923.  THE BENEFICIARY HAS AN
UNSECURED CLAIM, INFERIOR TO THAT OF ENCUMBRANCERS, BUT GOOD AS AGAINST
UNSECURED CREDITORS OF THE INSURED.  THIS IS WHAT THE NEW YORK POLICY
IS, AS IT SEEMS TO ME. 

NEITHER IS THERE ANYTHING IN BURNS V. FIRST TRUST & DEPOSIT CO., 250
APP. DIV. 370, 295 N.Y. SUPP. 412, WHICH VALIDATES THE COURT'S
DEFINITION OF NEW YORK POLICY.  IN THAT CASE A BANK HELD BOTH INSURANCE
POLICIES AND OTHER PROPERTY AS COLLATERAL SECURITY FOR DEBTS OWED IT BY
THE INSURED.  THE APPELLATE DIVISION REFUSED TO PERMIT COLLECTION OF
THE BANK LOAN FROM THE INSURANCE PROCEEDS IN ORDER THAT UNSECURED
CREDITORS COULD RESORT TO THE OTHER PROPERTY HELD BY THE BANK.  THE
CASE PREFERS THE BENEFICIARY TO THE UNSECURED CREDITOR WHO HAS NO
INDEPENDENT CLAIM TO THE PROCEEDS, BUT IT DOES NOT SUGGEST THAT THOSE
WITH SECURITY INTERESTS IN THE PROCEEDS WOULD BE LIKEWISE
SUBORDINATED. 

MOREOVER, FURTHER QUESTION ABOUT NEW YORK POLICY IS RAISED BY IN RE
KELLEY'S ESTATE, SUPRA, A CASE WHICH IS DIFFICULT TO RECONCILE WITH
BRUNS.  IN THAT CASE, AS IN BRUNS, THE INSURED HAD ASSIGNED A POLICY
AND HAD PLEDGED SHARES OF STOCK AS SECURITY FOR A BANK LOAN.  UPON HIS
DEATH THE BANK WAS PAID FROM THE INSURANCE PROCEEDS AND THE STOCK
REMAINED AVAILABLE TO THE EXECUTOR AND THE INSURED'S ESTATE.  THE
APPELLATE DIVISION APPARENTLY SAW NOTHING WRONG WITH SUCH AN
APPLICATION OF THE INSURANCE PROCEEDS, DENIED THAT THE WIDOW HAD ANY
INTEREST IN THEM TO THE EXTENT THEY WERE NECESSARY TO PAY THE BANK LOAN
AND FURTHER DENIED THE WIDOW'S CLAIM TO BE SUBROGATED TO THE BANK'S
RIGHTS IN THE STOCK.  (FN2) 

TWICE - IN THIS CASE AND IN UNITED STATES V. BEHRENS, 230 F.2D 504
(C.A.2D CIR.) - THE COURT OF APPEALS HAS ORDERED PAYMENT OF BOTH THE
LIEN OF A BANK AND THE INFERIOR FEDERAL TAX LIEN.  IN NEITHER CASE DID
IT INDICATE IT WAS TRENCHING UPON AN ESTABLISHED STATE POLICY INVOLVING
MARSHALING OF ASSETS.  IF THE RESULT IS TO DEPEND UPON STATE POLICY,
WHICH AT THE VERY LEAST IS SHROUDED IN DOUBT AND WHICH IT SEEMS TO ME
IS NOT WHAT THE COURT SAYS IT IS, I WOULD FOLLOW OUR USUAL CUSTOM (FN3)
OF LEAVING TO THE COURT OF APPEALS THE ASCERTAINMENT OF THE LOCAL LAW
IN WHICH IT SPECIALIZES.   (FN4)  PITCHING THE RESULT UPON STATE LAW,
EVEN AS A GUIDE TO THE GOVERNING FEDERAL LAW, SHOULD LEAD TO A REMAND
RATHER THAN TO DECISION HERE. 

3.  THE DECEASED MADE THE ASSIGNMENT TO THE BANK IN 1943. 
DEFICIENCIES IN FEDERAL INCOME TAXES FOR THE YEARS 1945 AND 1946 WERE
ASSESSED ON MAY 22, 1946, AND JUNE 17, 1947, RESPECTIVELY.  PARTIAL
PAYMENTS WERE MADE UPON THE 1945 ASSESSMENTS, NONE ON THE 1946.  THE
DECEASED IN 1951 EXTENDED THE TIME FOR COLLECTION OF THE 1945
DEFICIENCIES UNTIL 1956 AND OF THE 1946 DEFICIENCY UNTIL 1957.  HE
SUBMITTED AN OFFER OF COMPROMISE IN 1955 WHICH WAS REJECTED BY THE
GOVERNMENT IN MAY OF THAT YEAR.  NOTICE OF TAX LIEN WAS FILED IN JULY
1955, AND THE DECEASED DIED THE FOLLOWING DECEMBER.  AT THAT TIME THE
CASH SURRENDER VALUE OF THE POLICIES HAD GROWN TO $27,285.87 AND THE
AMOUNT DUE ON THE BANK LOANS TOTALED $26,844.66.  THE INSURANCE COMPANY
REMITTED THE AMOUNT OF THE LOANS TO THE BANK AND PAID THE REMAINDER OF
THE PROCEEDS TO THE NAMED BENEFICIARY OF THE POLICIES.  THERE ARE NO
FACTS OR FINDINGS TO INDICATE THAT THE AMOUNT PAID TO THE BANK BY THE
INSURANCE COMPANY WAS PAID FROM THE CASH SURRENDER VALUE.  IN THESE
CIRCUMSTANCES I SEE NO REASON FOR ASSUMING THAT IT WAS AND NO BASIS FOR
FORBIDDING COLLECTION OF THE TAX LIEN FROM THE AMOUNTS PAID THE
BENEFICIARY. 

THE DECEASED FIRST REDUCED THE BENEFICIARY'S INTEREST IN THE PROCEEDS
OF THE POLICIES BY MAKING THE ASSIGNMENT TO THE BANK.  HE THEN ALLOWED
ANOTHER LIEN TO ATTACH BY HIS OWN DEFAULT, THEREBY FURTHER INVADING THE
PROCEEDS.  WHERE THERE IS NO PRIOR ASSIGNMENT, IT IS CLEAR THAT THE
GOVERNMENT LIEN EFFECTIVELY DIMINISHES THE PROCEEDS IN THE HANDS OF THE
BENEFICIARY SINCE THE GOVERNMENT'S INTEREST IN THE PROCEEDS IS SUPERIOR
TO THAT OF THE BENEFICIARY.  IT IS UNSOUND TO HOLD, AS THE COURT DOES,
THAT THE LIEN MAY NOT HAVE LIKE EFFECT WHEN THE INSURED HAS GIVEN A
PRIOR LIEN ON THE PROCEEDS TO SECURE A BANK LOAN.  TRUE, PAYING THE TAX
LIEN FROM THE CASH SURRENDER VALUE RESULTS IN THE BANK'S BEING PAID
FROM THE REMAINDER.  BUT THIS IS PRECISELY WHAT THE INSURED ARRANGED
FOR SINCE THE LOAN, BY ITS VERY TERMS, WAS COLLECTIBLE FROM ANY PART OF
THE PROCEEDS, WHICH WERE MORE THAN SUFFICIENT TO PAY BOTH THE LOAN AND
GOVERNMENT LIEN.  (FN5) 

NOR IS THERE ANY SUPERIOR EQUITY IN THE BENEFICIARY TO PREVENT THE
APPLICATION OF THE WELL-ESTABLISHED RULE OF MARSHALING, A RULE LONG
RECOGNIZED BY THIS COURT.  (FN6)  IT IS NOT UNREASONABLE TO SUPPOSE
THAT THE BENEFICIARY ENJOYED THE BENEFITS OF THE BANK LOAN WHICH IS
HERE USED TO INSULATE THE CASH SURRENDER VALUE FROM THE GOVERNMENT
LIEN.  WHAT IS MORE, THE INSURED AND HIS FAMILY USED AND SPENT THE
INCOME WHICH SHOULD HAVE BEEN USED TO PAY FEDERAL TAXES WHICH HAD BEEN
DUE AND PAYABLE FOR MANY YEARS.  PAYING BOTH THE BANK AND THE TAX LIEN
FROM THE PROCEEDS IS WHOLLY CONSISTENT WITH THE ARRANGEMENTS MADE BY
THE INSURED AND WITH THIS COURT'S HOLDING IN BESS. 

FINALLY, THE FEDERAL REVENUE DESERVES MORE PROTECTION THAN IT
RECEIVES TODAY.  THE COURT MAY NOW PROTECT A WIDOW, BUT THE RULE
ANNOUNCED WILL PROTECT ALL BENEFICIARIES, VARIED AS THEY MAY BE. (FN7)
CONGRESS HAS DECLARED THAT THE UNITED STATES SHALL HAVE A LIEN ON THE
ASSETS OF THOSE PERSONS WHO DO NOT DISCHARGE THEIR FEDERAL TAX
OBLIGATIONS.  THIS COURT NOW CREATES AN EXCEPTION TO THAT POLICY BY
HOLDING THAT THE TAX LIEN MAY NOT BE PAID FROM THE CASH SURRENDER VALUE
OF THE INSURANCE POLICY, SOLELY BECAUSE PRIOR TO THE ATTACHMENT OF THE
TAX LIEN MR. MEYER HAD ASSIGNED THE ENTIRE PROCEEDS AS COLLATERAL FOR A
BANK LOAN.  I WOULD NOT INVITE OR VALIDATE THE UTILIZATION OF
CONTINUING AND GROWING BANK LOANS FOR THE SOLE PURPOSE OF INSULATING
INSURANCE PROCEEDS FROM THE FEDERAL TAX LIEN WHICH OTHERWISE WOULD BE
SATISFIED FROM THE POLICY PROCEEDS. 

THERE ARE IN THIS CASE TWO SECURED CREDITORS AND TWO FUNDS.  THE
TOTAL ASSETS ARE SUFFICIENT TO SATISFY THE CLAIMS OF BOTH CREDITORS,
BUT THE JUNIOR CLAIMANT HAS A LIEN ON ONLY ONE OF THE FUNDS.  IT IS
ENTIRELY APPROPRIATE HERE TO REQUIRE THE PAYMENT OF BOTH LIENS. 

FOR THE FOREGOING REASONS, I RESPECTFULLY DISSENT. 

FN1  SECTION 166 IS QUOTED IN PART IN THE FOOTNOTE TO THE COURT'S
OPINION.  IT OBVIOUSLY PROTECTS ASSIGNEES, EVEN CREDITOR-ASSIGNEES,
FROM THE OTHER CREDITORS OF THE INSURED. 

FN2  "WHEN THE HUSBAND EXECUTED HIS CERTIFICATE ON AUGUST 15, 1932,
REVOKING THE DESIGNATION OF HIS WIFE AS THE ABSOLUTE BENEFICIARY AND
REDESIGNATING HER AS BENEFICIARY SUBJECT TO THE ASSIGNMENT TO THE
MANUFACTURERS TRUST COMPANY, HE THEREBY DIMINISHED HER INTEREST IN THE
POLICY PRO TANTO AND, IN EFFECT, CONSTITUTED THE TRUST COMPANY THE
PRIMARY BENEFICIARY TO THE EXTENT NECESSARY TO SATISFY ITS LOAN TO HIM
AND APPELLANT, THE SECONDARY BENEFICIARY, AS TO ANY RESIDUE WHICH MAY
REMAIN.  UNDER SECTION 52 OF THE DOMESTIC RELATIONS LAW AND SECTION 55
A OF THE INSURANCE LAW, THE WIFE MAY ACQUIRE A VESTED IRREVOCABLE RIGHT
TO THE PROCEEDS OF THE POLICY, FREE FROM THE CLAIMS OF THE HUSBAND'S
CREDITORS AND REPRESENTATIVES, ONLY IF THE HUSBAND DIE WITHOUT
EXERCISING HIS RESERVED RIGHT TO CHANGE THE BENEFICIARY IN ACCORDANCE
WITH THE PROVISIONS OF THE POLICY.  HERE THE HUSBAND EXERCISED THAT
RIGHT TO THE EXTENT NECESSARY TO SATISFY HIS LOAN.  HENCE, WHEN THE
TRUST COMPANY APPLIED THE PROCEEDS OF THE POLICY TO THE PAYMENT OF THE
LOAN, IT WAS NOT UTILIZING APPELLANT'S PROPERTY AND SHE COULD NOT BE
SUBROGATED TO THE RIGHTS OF THE BANK WITH RESPECT TO THE STOCK OF THE
FAIRVIEW FOUNDRY INCORPORATED."  IN RE KELLEY'S ESTATE, 251 APP. DIV.
847-848, 296 N.Y. SUPP. 923-924. 

FN3  UNITED STATES V. DURHAM LUMBER CO., 363 U.S. 522, 526-527;
PROPPER V. CLARK, 337 U.S. 472, 486-487. 

FN4  THE COURT OF APPEALS HAS FREQUENTLY DEALT WITH SEC. 166 OF THE
NEW YORK INSURANCE LAW.  SEE FOR EXAMPLE FRIED V. NEW YORK LIFE INS.
CO., 241 F.2D 504; UNITED STATES V. BEHRENS, 230 F.2D 504, CERT.
DENIED, 351 U.S. 919; ROWEN V. COMMISSIONER, 215 F.2D 641. 

FN5 WHERE THE TAX LIEN IS INFERIOR TO LOCAL LIEN A BUT SUPERIOR TO
LOCAL LIEN B, THE TAX LIEN IS TO BE PAID EVEN THOUGH LIEN A, SUPERIOR
TO THE FEDERAL LIEN, IS CUT OUT BECAUSE UNDER LOCAL LAW IT IS INFERIOR
TO LIEN B. UNITED STATES V. BUFFALO SAVINGS BANK, 371 U.S. 228; UNITED
STATES V. CITY OF NEW BRITAIN, 347 U.S. 81.  IN THE CASE AT BAR THERE
IS MORE REASON TO RECOGNIZE AND PAY THE TAX LIEN; FOR IF IT IS PAID, IT
IS ONLY AN INFERIOR INTEREST, THAT OF THE BENEFICIARY, WHICH IS
INVADED. 

FN6  "THE EQUITABLE DOCTRINE OF MARSHALING RESTS UPON THE PRINCIPLE
THAT A CREDITOR HAVING TWO FUNDS TO SATISFY HIS DEBT, MAY NOT BY HIS
APPLICATION OF THEM TO HIS DEMAND, DEFEAT ANOTHER CREDITOR, WHO MAY
RESORT TO ONLY ONE OF THE FUNDS."  SOWELL V. FEDERAL RESERVE BANK, 268
U.S. 449, 456-457.  SEE ALSO MERRILL V. NATIONAL BANK OF JACKSONVILLE,
173 U.S. 131, 138; SCRUGGS V. MEMPHIS & CHARLESTON R. CO., 108 U.S.
368; SAVINGS BANK V. CRESWELL, 100 U.S. 630, 641; FENWICK V. CHAPMAN, 9
PET. 461, 474; 2 STORY'S EQUITY JURISPRUDENCE, SECS. 758, 760, 853-871;
2 POMEROY'S EQUITY JURISPRUDENCE, SECS. 396, 410; 4 POMEROY'S EQUITY
JURISPRUDENCE, SEC. 1414. 

FN7  SINCE SEC. 166 WOULD NOT PROTECT THE INSURANCE PROCEEDS FROM
CREDITORS' CLAIMS WHERE THE INSURED OR HIS ESTATE IS THE BENEFICIARY, I
WOULD SUPPOSE THE COURT'S OPINION WOULD LIKEWISE PERMIT PAYMENT OF THE
TAX LIEN IN SUCH CIRCUMSTANCES.  WOULD THE SAME APPLY TO WHERE THE
EXECUTOR OR ADMINISTRATOR IS THE BENEFICIARY?  AND WHAT IS THE RESULT
WHEN THE BENEFICIARY IS THE INSURED'S PARTNER OR BUSINESS ASSOCIATE, OR
A CORPORATION IN WHICH HE HAS AN INTEREST? 
..END :














FIELDS V. CITY OF FAIRFIELD 375 U.S. 248 


NO. 30.  ARGUED DECEMBER 10-11, 1963.  - DECIDED DECEMBER 16, 1963.  -
273 ALA. 588, 143 SO. 2D 177, REVERSED. 


FIELDS ET AL. V. CITY OF FAIRFIELD. 

APPEAL FROM THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE JUDGMENT OF THE SUPREME COURT OF ALABAMA IS REVERSED.  THOMPSON
V. CITY OF LOUISVILLE, 362 U.S. 199; GARNER V. LOUISIANA, 368 U.S.
157. 
..END :
















EICHEL V. NEW YORK CENTRAL RAILROAD CO. 375 U.S. 253 


NO. 480.  DECIDED DECEMBER 16, 1963.  - 319 F.2D 12, REVERSED AND
REMANDED. 


IN THIS SUIT BY PETITIONER UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
TO RECOVER DAMAGES FOR A PERMANENTLY DISABLING INJURY RESULTING FROM
RESPONDENT'S NEGLIGENCE, THE JURY RETURNED A VERDICT OF $51,000 FOR
PETITIONER, AND THE DISTRICT COURT ENTERED JUDGMENT ACCORDINGLY.  THE
COURT OF APPEALS REVERSED ON THE GROUND THAT THE DISTRICT COURT HAD
COMMITTED PREJUDICIAL ERROR IN EXCLUDING EVIDENCE THAT PETITIONER WAS
RECEIVING A DISABILITY PENSION OF $190 PER MONTH UNDER THE RAILROAD
RETIREMENT ACT OF 1937.  HELD:  THE DISTRICT COURT PROPERLY EXCLUDED
THE EVIDENCE OF DISABILITY PAYMENTS.  PP. 253-256. 

EICHEL V. NEW YORK CENTRAL RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

PETITIONER, WHO HAD BEEN EMPLOYED BY RESPONDENT NEW YORK CENTRAL
RAILROAD FOR 40 YEARS, BROUGHT THIS ACTION AGAINST RESPONDENT UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT.  65, AS AMENDED, 45 U.S.C.
SEC. 51 ET SEQ., IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK.  THE COMPLAINT ALLEGED THAT IN 1960, AS A RESULT OF RESPONDENT'S
NEGLIGENCE, PETITIONER SUFFERED A PERMANENTLY DISABLING INJURY.  THE
JURY RETURNED A VERDICT OF $51,000 FOR PETITIONER AND THE DISTRICT
COURT ENTERED JUDGMENT IN ACCORDANCE WITH THAT VERDICT.  RESPONDENT
OFFERED EVIDENCE THAT PETITIONER WAS RECEIVING $190 A MONTH IN
DISABILITY PENSION PAYMENTS UNDER THE RAILROAD RETIREMENT ACT OF 1937,
50 STAT. 309, AS AMENDED, 45 U.S.C. SEC. 228BA)4.  THIS EVIDENCE WAS
OFFERED FOR THE PURPOSE OF IMPEACHING THE TESTIMONY OF PETITIONER AS TO
HIS MOTIVE FOR NOT RETURNING TO WORK AND AS TO THE PERMANENCY OF HIS
INJURIES.  THE TRIAL COURT EXCLUDED THE EVIDENCE IN RESPONSE TO THE
OBJECTION OF PETITIONER'S COUNSEL.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT REVERSED, HOLDING IT PREJUDICIAL ERROR TO EXCLUDE THE EVIDENCE
OF THE DISABILITY PENSION, AND REMANDED "FOR A NEW TRIAL, LIMITED,
HOWEVER, TO THE ISSUES OF INJURY AND RESULTING DAMAGES  ...  ."  319
F.2D 12, 14.  THE COURT AFFIRMED THE JUDGMENT "AS TO THE DETERMINATION
OF NEGLIGENCE."  IBID.  WE GRANT CERTIORARI AND REVERSE THE JUDGMENT OF
THE COURT OF APPEALS. 

RESPONDENT DOES NOT DISPUTE THAT IT WOULD BE HIGHLY IMPROPER FOR THE
DISABILITY PENSION PAYMENTS TO BE CONSIDERED IN MITIGATION OF THE
DAMAGES SUFFERED BY PETITIONER.  THUS IT HAS BEEN RECOGNIZED THAT: 

"THE RAILROAD RETIREMENT ACT IS SUBSTANTIALLY A SOCIAL SECURITY ACT
FOR EMPLOYEES OF COMMON CARRIERS  ...  .  THE BENEFITS RECEIVED UNDER
SUCH A SYSTEM OF SOCIAL LEGISLATION ARE NOT DIRECTLY ATTRIBUTABLE TO
THE CONTRIBUTIONS OF THE EMPLOYER, SO THEY CANNOT BE CONSIDERED IN
MITIGATION OF THE DAMAGES CAUSED BY THE EMPLOYER."  NEW YORK, N.H.&H.R.
CO. V. LEARY, 204 F.2D 461, 468, CERT. DENIED, 346 U.S. 856.  (FN1) 

RESPONDENT ARGUES THAT THE EVIDENCE OF THE DISABILITY PAYMENTS,
ALTHOUGH CONCEDEDLY INADMISSIBLE TO OFFSET OR MITIGATE DAMAGES, IS
ADMISSIBLE AS BEARING ON THE EXTENT AND DURATION OF THE DISABILITY
SUFFERED BY PETITIONER.  AT THE TRIAL COUNSEL FOR RESPONDENT ARGUED
THAT THE PENSION WOULD SHOW "A MOTIVE FOR (PETITIONER'S) NOT CONTINUING
WORK, AND FOR HIS DECIDING NOT TO CONTINUE GOING BACK TO WORK AFTER THE
LAST ACCIDENT."  ON THE BASIS OF THIS ARGUMENT THE COURT OF APPEALS
CONCLUDED THAT THE DISPUTED EVIDENCE SHOULD HAVE BEEN ADMITTED BECAUSE:
"ITS SUBSTANTIAL PROBATIVE VALUE CANNOT REASONABLY BE SAID TO BE
OUTWEIGHED BY THE RISK THAT IT WILL  ...  CREATE SUBSTANTIAL DANGER OF
UNDUE PREJUDICE THROUGH BEING CONSIDERED BY THE JURY FOR THE
INCOMPETENT PURPOSE OF A SET-OFF AGAINST LOST EARNINGS."  319 F.2D, AT
20. 

WE DISAGREE.  IN OUR VIEW THE LIKELIHOOD OF MISUSE BY THE JURY
CLEARLY OUTWEIGHS THE VALUE OF THIS EVIDENCE.  (FN2)  INSOFAR AS THE
EVIDENCE BEARS ON THE ISSUE OF MALINGERING, THERE WILL GENERALLY BE
OTHER EVIDENCE HAVING MORE PROBATIVE VALUE AND INVOLVING LESS
LIKELIHOOD OF PREJUDICE THAN THE RECEIPT OF A DISABILITY PENSION. 
MOREOVER, IT WOULD VIOLATE THE SPIRIT OF THE FEDERAL STATUTES IF THE
RECEIPT OF DISABILITY BENEFITS UNDER THE RAILROAD RETIREMENT ACT OF
1937, 50 STAT. 309, AS AMENDED, 45 U.S.C. SEC. 228BA)4, WERE CONSIDERED
AS EVIDENCE OF MALINGERING BY AN EMPLOYEE ASSERTING A CLAIM UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT.  WE HAVE RECENTLY HAD OCCASION TO BE
REMINDED THAT EVIDENCE OF COLLATERAL BENEFITS IS READILY SUBJECT TO
MISUSE BY A JURY.  TIPTON V. SOCONY MOBIL OIL CO., INC., 375 U.S. 34. 
(FN3)  IT HAS LONG BEEN RECOGNIZED THAT EVIDENCE SHOWING THAT THE
DEFENDANT IS INSURED CREATES A SUBSTANTIAL LIKELIHOOD OF MISUSE.  (FN4)
SIMILARLY, WE MUST RECOGNIZE THAT THE PETITIONER'S RECEIPT OF
COLLATERAL SOCIAL INSURANCE BENEFITS INVOLVES A SUBSTANTIAL LIKELIHOOD
OF PREJUDICIAL IMPACT.  WE HOLD THEREFORE THAT THE DISTRICT COURT
PROPERLY EXCLUDED THE EVIDENCE OF DISABILITY PAYMENTS.  ACCORDINGLY,
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE REMANDED
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  SEE SINOVICH V. ERIE R. CO., 230 F.2D 658, 661; PAGE V. ST.
LOUIS S.R. CO., 312 F.2D 84, 94.  SEE ALSO GREGORY AND KALVEN, CASES
AND MATERIALS ON TORTS (1959), PP. 480-482; MCCORMICK, DAMAGES (1935),
P. 310, N. 2; COMMENT, 38 MICH. L. REV. 1073. 

FN2  CF. MCCORMICK, EVIDENCE (1954), C. 19; 2 WIGMORE, EVIDENCE
(1940), SEC. 282A. 

FN3  SEE KALVEN, THE JURY, THE LAW, AND THE PERSONAL INJURY DAMAGE
AWARD, 19 OHIO ST. L.J. 158, 169. 

FN4  SEE NOTES 1-3, SUPRA. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

ONCE AGAIN, I AM OBLIGED TO RECORD MY VIEW THAT CERTIORARI SHOULD NOT
HAVE BEEN GRANTED IN A CASE OF THIS KIND, INVOLVING ONLY A QUESTION OF
THE ADMISSIBILITY OF EVIDENCE IN A SUIT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, 35 STAT. 65, AS AMENDED, 45 U.S.C. SEC. 51.  SEE MY
DISSENTING OPINION IN TIPTON V. SOCONY MOBIL OIL CO., INC., EARLIER
THIS TERM, ANTE, P. 37. 

ON THE MERITS, I AGREE WITH THE MAJORITY THAT THE JUDGMENT BELOW
SHOULD BE REVERSED, BUT FOR DIFFERENT REASONS.  WHETHER OR NOT EVIDENCE
THAT THE PETITIONER WAS RECEIVING DISABILITY PENSION PAYMENTS UNDER THE
RAILROAD RETIREMENT ACT OF 1937, 50 STAT. 307, AS AMENDED, 45 U.S.C.
SEC. 228A, SHOULD HAVE BEEN ADMITTED DEPENDS ON A BALANCE BETWEEN ITS
PROBATIVE BEARING ON THE ISSUE AS TO WHICH IT WAS OFFERED, IN THIS CASE
THE RESPONDENT'S CLAIM THAT PETITIONER WAS A MALINGERER, AND THE
POSSIBILITY OF PREJUDICE TO THE PETITIONER RESULTING FROM THE JURY'S
CONSIDERATION OF THE EVIDENCE ON ISSUES AS TO WHICH IT IS IRRELEVANT. 
WHEN A BALANCE OF THIS SORT HAS TO BE STRUCK, IT SHOULD, EXCEPT IN RARE
INSTANCES, BE LEFT TO THE DISCRETION OF THE TRIAL JUDGE, SUBJECT TO
REVIEW FOR ABUSE.   SEE UNIFORM RULES OF EVIDENCE, RULE 45; MODEL CODE
OF EVIDENCE, RULE 303.  IT IS HE WHO IS IN THE BEST POSITION TO WEIGH
THE RELEVANT FACTORS, SUCH AS THE VALUE OF THE DISPUTED EVIDENCE AS
COMPARED WITH OTHER PROOF ADDUCIBLE TO THE SAME END AND THE
EFFECTIVENESS OF LIMITING INSTRUCTIONS.  BELIEVING THAT THIS RULE
SHOULD HAVE BEEN FOLLOWED HERE, I CONCUR IN REVERSING THE JUDGMENT
BELOW, WHICH NOT ONLY HELD THE EVIDENCE NOT INADMISSIBLE AS A MATTER OF
LAW BUT ALSO DIRECTED ITS ADMISSION ON RETRIAL. 

FOR THE SAME REASONS, HOWEVER, I DISSENT FROM THE MAJORITY'S HOLDING
THAT THE EVIDENCE IS REQUIRED TO BE EXCLUDED.  I SEE NO REASON WHY
EVIDENTIARY QUESTIONS SHOULD BE GIVEN DIFFERENT TREATMENT WHEN THEY
ARISE IN AN F.E.L.A. CASE THAN WHEN THEY ARISE IN OTHER CONTEXTS. 
..END :























FAIR DRAIN TAXATION V. CITY OF ST. CLAIR SHORES 375 U.S. 258 


NO. 604.  DECIDED DECEMBER 16, 1963.  - 219 F. SUPP. 646, AFFIRMED. 


FAIR DRAIN TAXATION, INC., ET AL. V. CITY OF ST. CLAIR SHORES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















MACON V. INDIANA 375 U.S. 258 


NO. 37, MISC.  DECIDED DECEMBER 16, 1963.  - CERTIORARI GRANTED;
JUDGMENT VACATED; AND CASE REMANDED.  - REPORTED BELOW:  243 IND. 429,
185 N.E.2D 619. 


MACON V. INDIANA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF INDIANA FOR FURTHER
CONSIDERATION IN LIGHT OF LANE V. BROWN, 372 U.S. 477. 
..END :














SMITH V. CALIFORNIA 375 U.S. 259 


NO. 72.  DECIDED DECEMBER 16, 1963.  - JUDGMENT VACATED AND CASE
REMANDED. 


SMITH V. CALIFORNIA. 

CERTIORARI TO THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE MOTION OF CITIZENS FOR DECENT LITERATURE, INC., ET AL., FOR LEAVE
TO FILE A BRIEF, AS AMICI CURIAE, IS GRANTED.  THE JUDGMENT IS VACATED
AND THE CASE IS REMANDED TO THE APPELLATE DEPARTMENT OF THE SUPERIOR
COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, FOR FURTHER CONSIDERATION
IN LIGHT OF THE DECISION OF THE SUPREME COURT OF CALIFORNIA IN ZEITLIN
V. ARNEBERGH, 59 CAL. 2D 901, 383 P.2D 152. 
..END :












MCALLISTER V. LOUISIANA 375 U.S. 260 


NO. 721, MISC.  DECIDED DECEMBER 16, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  244 LA. 42, 150 SO. 2D 557. 


MCALLISTER V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















UNITED STATES V. BEHRENS 375 U.S. 162 


NO. 86.  ARGUED OCTOBER 17, 1963.  - DECIDED DECEMBER 9, 1963.  - 312
F.2D 223, AFFIRMED. 


RESPONDENT WAS CONVICTED IN A FEDERAL DISTRICT COURT OF AN OFFENSE
PUNISHABLE UNDER 18 U.S.C. SEC. 113(A) BY IMPRISONMENT FOR NOT MORE
THAN 20 YEARS.  THE TRIAL JUDGE ISSUED AN ORAL ORDER UNDER 18 U.S.C.
SEC. 4208(B) COMMITTING RESPONDENT TO THE CUSTODY OF THE ATTORNEY
GENERAL PENDING RECEIPT OF A REPORT FROM THE BUREAU OF PRISONS.  HIS
ORDER PROVIDED THAT, AFTER THE REPORT WAS RECEIVED, RESPONDENT'S
COMMITMENT, DEEMED TO BE FOR 20 YEARS, WOULD "BE SUBJECT TO
MODIFICATION IN ACCORDANCE WITH" SEC. 4208(B).  AFTER THE REPORT WAS
RECEIVED, THE TRIAL COURT ENTERED AN ORDER FIXING THE PERIOD OF
IMPRISONMENT AT 5 YEARS AND PROVIDING THAT THE BOARD OF PAROLE MIGHT
DECIDE WHEN RESPONDENT SHOULD BE ELIGIBLE FOR PAROLE.  NEITHER
RESPONDENT NOR HIS COUNSEL WAS PRESENT WHEN THIS ORDER WAS ENTERED, AND
RESPONDENT SUBSEQUENTLY MOVED TO VACATE SENTENCE UNDER 28 U.S.C. SEC.
2255.  HELD:  THE FIRST ORDER UNDER SEC. 4208(B) WAS A PRELIMINARY
COMMITMENT POSTPONING ACTION AS TO THE FINAL SENTENCE; THE LATER ORDER
FIXING THE SENTENCE AT 5 YEARS WAS AN "IMPOSITION OF SENTENCE," WITHIN
THE MEANING OF FEDERAL RULE OF CRIMINAL PROCEDURE 43; AND THE DISTRICT
COURT ERRED IN FIXING FINAL SENTENCE IN THE ABSENCE OF RESPONDENT AND
HIS COUNSEL.  PP. 162-166. 

UNITED STATES V. BEHRENS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT WAS CONVICTED IN A UNITED STATES DISTRICT COURT OF AN
ASSAULT WITH INTENT TO MURDER, AN OFFENSE PUNISHABLE UNDER 18 U.S.C.
SEC. 113(A) "BY IMPRISONMENT FOR NOT MORE THAN TWENTY YEARS."  DESIRING
MORE DETAILED INFORMATION AS A BASIS FOR DETERMINING THE SENTENCE TO BE
IMPOSED, THE TRIAL JUDGE DECIDED TO PROCEED "UNDER THE FLEXIBLE
PROVISIONS OF SEC. 4208" OF 18 U.S.C.  ACCORDINGLY, HE COMMITTED
RESPONDENT TO THE CUSTODY OF THE ATTORNEY GENERAL TO AWAIT A STUDY BY
THE DIRECTOR OF THE BUREAU OF PRISONS OF RESPONDENT'S PREVIOUS
DELINQUENCY, CRIMINAL EXPERIENCE, SOCIAL BACKGROUND, ETC.  HIS ORDER
PROVIDED THAT AFTER THE RESULTS OF THE STUDY AND THE DIRECTOR'S
RECOMMENDATIONS WERE REPORTED TO THE COURT, RESPONDENT'S COMMITMENT,
DEEMED TO BE FOR 20 YEARS, WOULD "BE SUBJECT TO MODIFICATION IN
ACCORDANCE WITH TITLE 18 U.S.C. 4208(B)."  (FN1) 

AFTER THE DIRECTOR'S REPORT WAS RECEIVED, THE TRIAL COURT ENTERED AN
ORDER PROVIDING "THAT THE PERIOD OF IMPRISONMENT HERETOFORE IMPOSED BE
REDUCED TO FIVE (5) YEARS" AND THAT THE BOARD OF PAROLE MIGHT DECIDE
WHEN THE RESPONDENT SHOULD BE ELIGIBLE FOR PAROLE.  NEITHER RESPONDENT
NOR HIS COUNSEL WAS PRESENT WHEN THIS MODIFICATION OF THE COURT'S
PREVIOUS COMMITMENT UNDER SEC. 4208(B) WAS ENTERED.  NO DIRECT APPEAL
WAS TAKEN, BUT RESPONDENT MOVED TO VACATE SENTENCE UNDER 28 U.S.C. SEC.
2255.  THE TRIAL COURT DENIED RELIEF, BUT THE COURT OF APPEALS REVERSED
AND REMANDED WITH DIRECTIONS TO VACATE THE SENTENCE ON THE GROUND THAT
IT WAS ERROR FOR THE DISTRICT JUDGE TO IMPOSE THE FINAL SENTENCE UNDER
SEC. 4208(B) IN THE ABSENCE OF PETITIONER AND HIS COUNSEL.  (FN2)  IN
ANOTHER CASE, COREY V. UNITED STATES, 307 F.2D 839, THE COURT OF
APPEALS FOR THE FIRST CIRCUIT HELD THAT IT WAS THE ORIGINAL COMMITMENT
UNDER SEC. 4208(B), NOT THE FIXING OF THE FINAL SENTENCE, WHICH MARKED
THE POINT FROM WHICH TIME TO APPEAL BEGAN RUNNING.  BECAUSE OF THE
DISAGREEMENT BETWEEN THE TWO APPELLATE COURTS' INTERPRETATION OF SEC.
4208(B) AND THE GENERAL CONFUSION IN DISTRICT COURTS AND COURTS OF
APPEALS AS TO THIS SECTION'S EXACT MEANING AND EFFECT, WE GRANTED
CERTIORARI IN BOTH CASES.  (FN3) 

IN ASKING THAT WE GRANT CERTIORARI IN THE PRESENT CASE, THE SOLICITOR
GENERAL CONCEDED THAT IF THE ACTION OF THE DISTRICT COURT IN FIXING THE
FINAL TERM OF IMPRISONMENT UNDER SEC. 4208(B) WAS A FINAL JUDGMENT FOR
THE PURPOSES OF APPEAL, THEN THE DEFENDANT WOULD PLAINLY BE ENTITLED TO
HAVE HIMSELF AND HIS COUNSEL PRESENT WHEN THE FINAL ACTION WAS TAKEN. 
WE HAVE DECIDED TODAY, FOR REASONS SET OUT IN OUR OPINION IN THE COREY
CASE, POST, P. 169, THAT THE ACTION OF A DISTRICT COURT FINALLY
DETERMINING UNDER SEC. 4208(B) THE SENTENCE TO BE IMPOSED UPON A
DEFENDANT IS A FINAL, APPEALABLE ORDER.  FOR THOSE REASONS AS WELL AS
THOSE SET OUT BELOW, WE HOLD THAT THE DISTRICT COURT ERRED IN THE
PRESENT CASE WHEN, MODIFYING ITS ORIGINAL ORAL SEC. 4208(B) ORDER, IT
FIXED THE FINAL SENTENCE IN THE ABSENCE OF RESPONDENT AND HIS COUNSEL. 
IT IS PLAIN THAT AS FAR AS THE SENTENCE IS CONCERNED THE ORIGINAL ORDER
ENTERED UNDER SEC. 4208(B) IS WHOLLY TENTATIVE.  THAT SECTION MERELY
PROVIDES THAT COMMITMENT OF A DEFENDANT TO THE CUSTODY OF THE ATTORNEY
GENERAL "SHALL BE DEEMED TO BE FOR THE MAXIMUM SENTENCE," BUT DOES NOT
MAKE THAT THE FINAL SENTENCE.  THE WHOLE POINT OF USING SEC. 4208(B)
IS, IN ITS OWN LANGUAGE, TO GET "MORE DETAILED INFORMATION AS A BASIS
FOR DETERMINING THE SENTENCE TO BE IMPOSED  ...  ."  IT IS ONLY AFTER
THE DIRECTOR OF THE BUREAU OF PRISONS MAKES HIS REPORT THAT THE COURT
MAKES ITS FINAL DECISION AS TO WHAT THE SENTENCE WILL BE.  RULE 43 OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE SPECIFICALLY REQUIRES THAT THE
DEFENDANT BE PRESENT "AT EVERY STAGE OF THE TRIAL INCLUDING  ...  THE
IMPOSITION OF SENTENCE  ...  ."  IT IS TRUE THAT THE SAME RULE PROVIDES
THAT A DEFENDANT'S PRESENCE IS NOT REQUIRED WHEN HIS SENTENCE IS
REDUCED UNDER RULE 35.  BUT A REDUCTION OF SENTENCE UNDER RULE 35 IS
QUITE DIFFERENT FROM THE FINAL DETERMINATION UNDER SEC. 4208(B) OF WHAT
A SENTENCE IS TO BE.  RULE 35 REFERS TO THE POWER OF A COURT TO REDUCE
A SENTENCE WHICH HAS ALREADY BECOME FINAL IN EVERY RESPECT.  THERE IS
NO SUCH FINALITY OF SENTENCE AT A SEC. 4208(B) PRELIMINARY COMMITMENT. 
THE USE OF SEC. 4208(B) POSTPONES ACTION AS TO THE FINAL SENTENCE; BY
USING THAT SECTION THE COURT DECIDES TO AWAIT STUDIES AND REPORTS OF A
DEFENDANT'S BACKGROUND, MENTAL AND PHYSICAL HEALTH, ETC., TO ASSIST THE
JUDGE IN MAKING UP HIS MIND AS TO WHAT THE FINAL SENTENCE SHALL BE.  IT
IS ONLY THEN THAT THE JUDGE'S FINAL WORDS ARE SPOKEN AND THE
DEFENDANT'S PUNISHMENT IS FIXED.  IT IS THEN THAT THE RIGHT OF THE
DEFENDANT TO BE AFFORDED AN OPPORTUNITY TO MAKE A STATEMENT TO THE
JUDGE IN HIS OWN BEHALF IS OF MOST IMPORTANCE.  THIS RIGHT, ANCIENT IN
LAW, IS RECOGNIZED BY RULE 32(A) OF THE FEDERAL CRIMINAL RULES, WHICH
REQUIRES THE COURT TO "AFFORD THE DEFENDANT AN OPPORTUNITY TO MAKE A
STATEMENT IN HIS OWN BEHALF AND TO PRESENT ANY INFORMATION IN
MITIGATION OF PUNISHMENT."  THIS RIGHT WOULD BE LARGELY LOST IN THE
SEC. 4208 PROCEEDING IF FOR ADMINISTRATIVE CONVENIENCE THE DEFENDANT
WERE NOT PERMITTED TO INVOKE IT WHEN THE SENTENCE THAT COUNTS IS
PRONOUNCED.  (FN4)  WE HOLD THAT IT WAS ERROR TO IMPOSE THIS SENTENCE
IN THE ABSENCE OF RESPONDENT AND HIS COUNSEL.  AFFIRMED. 

FN1  18 U.S.C. SEC. 4208(B) PROVIDES: 

"IF THE COURT DESIRES MORE DETAILED INFORMATION AS A BASIS FOR
DETERMINING THE SENTENCE TO BE IMPOSED, THE COURT MAY COMMIT THE
DEFENDANT TO THE CUSTODY OF THE ATTORNEY GENERAL, WHICH COMMITMENT
SHALL BE DEEMED TO BE FOR THE MAXIMUM SENTENCE OF IMPRISONMENT
PRESCRIBED BY LAW, FOR A STUDY AS DESCRIBED IN SUBSECTION (C) HEREOF. 
THE RESULTS OF SUCH STUDY, TOGETHER WITH ANY RECOMMENDATIONS WHICH THE
DIRECTOR OF THE BUREAU OF PRISONS BELIEVES WOULD BE HELPFUL IN
DETERMINING THE DISPOSITION OF THE CASE, SHALL BE FURNISHED TO THE
COURT WITHIN THREE MONTHS UNLESS THE COURT GRANTS TIME, NOT TO EXCEED
AN ADDITIONAL THREE MONTHS, FOR FURTHER STUDY.  AFTER RECEIVING SUCH
REPORTS AND RECOMMENDATIONS, THE COURT MAY IN ITS DISCRETION:  (1)
PLACE THE PRISONER ON PROBATION AS AUTHORIZED BY SECTION 3651 OF THIS
TITLE, OR (2) AFFIRM THE SENTENCE OF IMPRISONMENT ORIGINALLY IMPOSED,
OR REDUCE THE SENTENCE OF IMPRISONMENT, AND COMMIT THE OFFENDER UNDER
ANY APPLICABLE PROVISION OF LAW.  THE TERM OF THE SENTENCE SHALL RUN
FROM DATE OF ORIGINAL COMMITMENT UNDER THIS SECTION." 

FN2  312 F.2D 223. 

FN3  371 U.S. 966; 373 U.S. 902. 

FN4  IT IS TRUE THAT THE HOUSE COMMITTEE ON THE JUDICIARY IN
REPORTING FAVORABLY ON A PROPOSED SECTION IDENTICAL TO SEC. 4208(B)
INDICATED THAT IT SAW NO NECESSITY FOR A DEFENDANT BEING PRESENT WHEN
FINAL ACTION ON HIS SENTENCE WAS TAKEN.  H.R. REP. NO. 1946, 85TH
CONG., 2D SESS., P. 10.  THIS SECTION FAILED OF PASSAGE IN THE HOUSE
BUT AN IDENTICAL ONE WAS ADDED BY THE SENATE AND ADOPTED WITHOUT
DISCUSSION OF THE POINT IN THE SENATE COMMITTEE AND CONFERENCE
REPORTS.  SEE S. REP. NO. 2013, 85TH CONG., 2D SESS; H.R. REP. NO.
2579, 85TH CONG., 2D SESS.  NO LANGUAGE SUPPORTING THIS POSITION
APPEARED IN THE SENATE BILL OR IN THE ACT ITSELF.  WE ARE NOT INCLINED
TO EXPAND THE LANGUAGE OF THE SECTION, AND THEREBY MAKE NECESSARY A
CONSTITUTIONAL DECISION, BY READING THE SILENCE OF THE ACT AS DEPRIVING
A DEFENDANT OF A RIGHT TO URGE UPON THE COURT REASONS FOR LENIENCY AT
THE TIME WHEN THE JUDGE AT LAST HAS THE RELEVANT MATERIALS FOR DECISION
BEFORE HIM. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I AGREE WITH THE RESULT REACHED IN THIS CASE, BUT NOT WITH ALL OF THE
REASONING OF MY BROTHER BLACK'S OPINION.  MORE PARTICULARLY,
DISAGREEING AS I DO WITH THE RATIONALE OF THE COREY DECISION, POST, P.
169, I DRAW NO SUPPORT FROM IT FOR THE CONCLUSION HERE REACHED. 

THE LANGUAGE OF SEC. 4208(B) IS NOT EXPLICIT ON THE QUESTION WHETHER
A DEFENDANT MUST BE ALLOWED TO BE PRESENT WHEN THE DISTRICT COURT
IMPOSES FINAL SENTENCE.  (FN1)  IT IS, HOWEVER, CLEAR THAT THE STATUTE
DOES NOT CONTEMPLATE THAT THE DISTRICT JUDGE WILL HAVE DELIBERATED AND
DECIDED UPON AN APPROPRIATE SENTENCE AT THE TIME OF THE ORIGINAL
COMMITMENT.  AS THE FIRST WORDS OF SEC. 4208(B) MAKE PLAIN, THE
PROCEDURES OUTLINED THEREIN ARE CALLED INTO PLAY "IF THE COURT DESIRES
MORE DETAILED INFORMATION AS A BASIS FOR DETERMINING THE SENTENCE TO BE
IMPOSED  ...  ."  ALTHOUGH THE STATUTE REFERS LATER TO "THE SENTENCE OF
IMPRISONMENT ORIGINALLY IMPOSED," THIS IS QUITE PLAINLY INTENDED MERELY
TO PERMIT THE DISTRICT JUDGE TO IMPOSE AS A FINAL SENTENCE THE "MAXIMUM
SENTENCE OF IMPRISONMENT PRESCRIBED BY LAW" UNDER WHICH THE DEFENDANT
IS "DEEMED TO BE" COMMITTED.  THE COREY CASE WELL ILLUSTRATES THE
ABSURDITY OF ANY OTHER CONCLUSION; THERE THE DEFENDANT WAS ORIGINALLY
DEEMED TO BE COMMITTED FOR A TERM OF 375 YEARS ON A CONVICTION OF
MAKING FALSE CLAIMS AGAINST THE GOVERNMENT.  SEE POST, P. 171. 

ONCE IT IS CLEAR THAT A DEFENDANT IS NOT ACTUALLY SENTENCED UNTIL
AFTER THE SEC. 4208(B) INQUIRY DURING COMMITMENT IS COMPLETED, THE
REQUIREMENTS OF CRIMINAL JUSTICE, ALWAYS SUBJECT TO THIS COURT'S
SUPERVISORY POWER OVER THE FEDERAL COURTS, LEAVE NO DOUBT OF HIS RIGHT
TO BE PRESENT WHEN A FINAL DETERMINATION OF SENTENCE IS MADE.  THE
ELEMENTARY RIGHT OF A DEFENDANT TO BE PRESENT AT THE IMPOSITION OF
SENTENCE AND TO SPEAK IN HIS OWN BEHALF, WHICH IS EMBODIED IN RULE
32(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, IS NOT SATISFIED BY
ALLOWING HIM TO BE PRESENT AND SPEAK AT A PRIOR STAGE OF THE
PROCEEDINGS WHICH RESULTS IN THE DEFERMENT OF THE ACTUAL SENTENCE. 
EVEN IF HE HAS SPOKEN EARLIER, A DEFENDANT HAS NO ASSURANCE THAT WHEN
THE TIME COMES FOR FINAL SENTENCE THE DISTRICT JUDGE WILL REMEMBER THE
DEFENDANT'S WORDS IN HIS ABSENCE AND GIVE THEM DUE WEIGHT.  MOREOVER,
ONLY AT THE FINAL SENTENCING CAN THE DEFENDANT RESPOND TO A DEFINITIVE
DECISION OF THE JUDGE. 

WHETHER OR NOT THE CONSTITUTION WOULD PERMIT ANY OTHER PROCEDURE IT
IS NOT NOW NECESSARY TO DECIDE.  CONGRESS NOT HAVING SPOKEN CLEARLY TO
THE CONTRARY, (FN2) I CONCUR IN THE JUDGMENT OF THE COURT. 

FN1  SECTION 4208(B) PROVIDES: 

"IF THE COURT DESIRES MORE DETAILED INFORMATION AS A BASIS FOR
DETERMINING THE SENTENCE TO BE IMPOSED, THE COURT MAY COMMIT THE
DEFENDANT TO THE CUSTODY OF THE ATTORNEY GENERAL, WHICH COMMITMENT
SHALL BE DEEMED TO BE FOR THE MAXIMUM SENTENCE OF IMPRISONMENT
PRESCRIBED BY LAW, FOR A STUDY AS DESCRIBED IN SUBSECTION (C) HEREOF. 
THE RESULTS OF SUCH STUDY, TOGETHER WITH ANY RECOMMENDATIONS WHICH THE
DIRECTOR OF THE BUREAU OF PRISONS BELIEVES WOULD BE HELPFUL IN
DETERMINING THE DISPOSITION OF THE CASE, SHALL BE FURNISHED TO THE
COURT WITHIN THREE MONTHS UNLESS THE COURT GRANTS TIME, NOT TO EXCEED
AN ADDITIONAL THREE MONTHS, FOR FURTHER STUDY.  AFTER RECEIVING SUCH
REPORTS AND RECOMMENDATIONS, THE COURT MAY IN ITS DISCRETION:  (1)
PLACE THE PRISONER ON PROBATION AS AUTHORIZED BY SECTION 3651 OF THIS
TITLE, OR (2) AFFIRM THE SENTENCE OF IMPRISONMENT ORIGINALLY IMPOSED,
OR REDUCE THE SENTENCE OF IMPRISONMENT, AND COMMIT THE OFFENDER UNDER
ANY APPLICABLE PROVISION OF LAW.  THE TERM OF THE SENTENCE SHALL RUN
FROM DATE OF ORIGINAL COMMITMENT UNDER THIS SECTION." 

FN2  A BILL NOW PENDING IN CONGRESS PROVIDES THAT THE DEFENDANT'S
PRESENCE IS NOT REQUIRED AT FINAL SENTENCING BUT THE DEFENDANT MAY BE
PRESENT IN THE DISCRETION OF THE COURT.  S. 1956, 88TH CONG., 1ST
SESS. 

NEITHER THE LEGISLATIVE HISTORY SET OUT IN THE OPINION OF THE
MAJORITY, ANTE, P. 166, NOTE 4, NOR THE PENDING PROPOSAL SEEMS TO ME
SUFFICIENT INDICATION OF CONGRESSIONAL INTENT TO REQUIRE DISREGARD OF
THE IMPORTANT RIGHT INVOLVED IN THIS CASE, PARTICULARLY IN LIGHT OF THE
POSSIBLE CONSTITUTIONAL ISSUES WHICH WOULD BE RAISED. 
..END :
























COREY V. UNITED STATES 375 U.S. 169 


NO. 31.  ARGUED OCTOBER 17, 1963.  - DECIDED DECEMBER 9, 1963.  - 307
F.2D 839, REVERSED. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT OF 75 VIOLATIONS
OF 18 U.S.C. SEC. 287.  THE COURT ENTERED AN ORDER UNDER 18 U.S.C. SEC.
4208(B) COMMITTING HIM TO THE CUSTODY OF THE ATTORNEY GENERAL PENDING
RECEIPT OF A REPORT FROM THE BUREAU OF PRISONS.  MORE THAN THREE MONTHS
LATER, AFTER RECEIVING AND CONSIDERING SUCH REPORT, THE COURT, IN THE
PRESENCE OF PETITIONER AND HIS COUNSEL, ENTERED AN ORDER SUSPENDING
IMPOSITION OF SENTENCE AND PLACING PETITIONER ON PROBATION FOR TWO
YEARS.  THREE DAYS LATER, PETITIONER FILED A NOTICE OF APPEAL.  THE
COURT OF APPEALS DISMISSED THE APPEAL, ON THE GROUND THAT THE TIME FOR
APPEAL HAD EXPIRED 10 DAYS AFTER ENTRY OF THE TRIAL COURT'S INITIAL
ORDER COMMITTING PETITIONER UNDER SEC. 4208(B).  HELD:  IN CASES SUCH
AS THIS, AN APPEAL MAY BE TAKEN WITHIN THE TIME PROVIDED BY FEDERAL
RULE OF CRIMINAL PROCEDURE 37(A)(2) AFTER EITHER THE FIRST OR THE
SECOND SENTENCE UNDER 18 U.S.C. SEC. 4208(B), AT THE OPTION OF THE
CONVICTED DEFENDANT.   PP. 169-176. 

COREY V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED BY A JURY IN THE UNITED STATES DISTRICT
COURT IN MASSACHUSETTS UPON A 75-COUNT INDICTMENT FOR MAKING FALSE
CLAIMS AGAINST THE GOVERNMENT IN VIOLATION OF 18 U.S.C. SEC. 287.  THE
TRIAL JUDGE, AFTER PRELIMINARY SENTENCING HEARINGS, CAME TO THE
CONCLUSION THAT IT WOULD BE HELPFUL "FOR THE COURT TO KNOW SOMETHING
MORE ABOUT THE DEFENDANT THAN I HAVE SEEN OR HEARD UP TO DATE." 
ACCORDINGLY, THE COURT ENTERED AN ORDER COMMITTING THE PETITIONER "TO
THE CUSTODY OF THE ATTORNEY GENERAL OF THE UNITED STATES UNDER TITLE 18
U.S.C.  4208(B)."  (FN1)  MORE THAN THREE MONTHS LATER, AFTER
CONSIDERING THE REPORT WHICH THE BUREAU OF PRISONS HAD SUBMITTED IN
ACCORDANCE WITH SEC. 4208(B), THE TRIAL JUDGE, IN A PROCEEDING AT WHICH
THE PETITIONER AND HIS COUNSEL WERE PRESENT, ENTERED AN ORDER
SUSPENDING IMPOSITION OF SENTENCE AND PLACING THE PETITIONER ON
PROBATION FOR TWO YEARS.  THREE DAYS LATER THE PETITIONER FILED A
NOTICE OF APPEAL. 

UPON MOTION OF THE GOVERNMENT THE APPEAL WAS DISMISSED AS UNTIMELY,
ON THE GROUND THAT THE PERIOD FOR APPEAL HAD EXPIRED 10 DAYS AFTER
ENTRY OF THE TRIAL COURT'S INITIAL ORDER COMMITTING THE PETITIONER FOR
STUDY UNDER 18 U.S.C. SEC. 4208(B).  POINTING OUT THAT SEC. 4208(B)
PROVIDES THAT SUCH A COMMITMENT "SHALL BE DEEMED TO BE FOR THE MAXIMUM
SENTENCE OF IMPRISONMENT PRESCRIBED BY LAW," (FN2) THE COURT OF APPEALS
REASONED THAT "AT THIS POINT THE DEFENDANT WAS ON NOTICE AS TO THE
EXTENT OF HIS PUNISHMENT.  IF HE DESIRED TO APPEAL, THIS WAS THE TIME
THAT HE SHOULD HAVE ACTED."  (FN3)  307 F.2D 839, 340.  WE GRANTED
CERTIORARI, 371 U.S. 966, TO CONSIDER QUESTIONS WHICH HAVE ARISEN IN
THE DISTRICT COURTS AND COURTS OF APPEALS IN THE APPLICATION OF 18
U.S.C. SEC. 4208(B).  (FN4) 

THE PROCEDURAL RULES GOVERNING THE USUAL COURSE OF CRIMINAL APPEALS
IN THE FEDERAL JUDICIAL SYSTEM ARE WELL SETTLED.  AFTER A PLEA OR
FINDING OF GUILTY, SENTENCE IS TO BE IMPOSED "WITHOUT UNREASONABLE
DELAY."  (FN5)  A JUDGMENT OF CONVICTION SETTING FORTH THE SENTENCE IS
THEN ENTERED, (FN6) AND A NOTICE OF APPEAL MUST BE FILED WITHIN 10 DAYS
THEREAFTER.  (FN7)  THE RECORD IS FILED WITH THE COURT OF APPEALS AND
THE APPEAL DOCKETED WITHIN 40 DAYS THEREAFTER, (FN8) AND THE APPEAL IS
HEARD "AS SOON  ...  AS THE STATE OF THE CALENDAR WILL PERMIT."  (FN9)
PENDING DISPOSITION OF THE APPEAL, THE SENTENCE IS STAYED UNLESS THE
DEFENDANT ELECTS OTHERWISE, (FN10) AND THE DEFENDANT MAY BE RELEASED ON
BAIL.  (FN11) 

THE DOMINANT PHILOSOPHY EMBODIED IN THESE RULES REFLECTS THE TWIN
CONCERNS THAT CRIMINAL APPEALS BE DISPOSED OF AS EXPEDITIOUSLY AS THE
FAIR AND ORDERLY ADMINISTRATION OF JUSTICE MAY PERMIT, AND THAT THE
IMPOSITION OF ACTUAL PUNISHMENT BE AVOIDED PENDING DISPOSITION OF AN
APPEAL.  IN THE ORDINARY CRIMINAL CASE, WHERE THE IMPOSITION OF A
SENTENCE FOLLOWS PROMPTLY UPON A DETERMINATION OF GUILT, NO PROBLEM
ARISES IN THE APPLICATION OF THESE APPELLATE RULES OR IN THE
EFFECTUATION OF THE POLICIES WHICH THEY REFLECT.  AN APPEAL MAY NOT BE
TAKEN UNTIL AFTER THE PRONOUNCEMENT OF SENTENCE, AND MUST BE TAKEN
PROMPTLY AFTER SENTENCE IS IMPOSED. 

BUT UNDER THE PROVISIONS OF 18 U.S.C. SEC. 4208(B) THE TRIAL JUDGE
SENTENCES A CONVICTED DEFENDANT NOT ONCE, BUT TWICE.  THE JUDGE FIRST
IMPOSES A SENTENCE OF IMPRISONMENT "DEEMED TO BE" THE MAXIMUM
PRESCRIBED BY THE LAW, AND THEN, AFTER THE DEFENDANT HAS BEEN
IMPRISONED FOR THREE OR SIX MONTHS, THE JUDGE FIXES A NEW SENTENCE
WHICH MAY BE QUITE DIFFERENT FROM THE ONE ORIGINALLY IMPOSED.  THE
PRESENT CASE ILLUSTRATES THE PROBLEM WHICH THEN ARISES.  THAT PROBLEM,
SIMPLY STATED, IS HOW, IN CASES WHERE TRIAL JUDGES HAVE UTILIZED THE
SENTENCING PROVISIONS AUTHORIZED BY 18 U.S.C. SEC. 4208(B), THE RULES
GOVERNING CRIMINAL APPEALS ARE TO BE APPLIED SO AS NEITHER TO FRUSTRATE
THEIR PURPOSE NOR TO IMPAIR THE EFFICACY OF THE FLEXIBLE SENTENCING
PROCEDURE WHICH CONGRESS DEVISED IN ENACTING 18 U.S.C. SEC. 4208(B). 
(FN12)  WE HAVE CONCLUDED THAT IN SUCH CASES AN APPEAL MAY BE TAKEN
WITHIN THE TIME PROVIDED BY RULE 37(A)(2), FED. RULES CRIM. PROC.,
AFTER EITHER THE FIRST OR THE SECOND SENTENCE UNDER SEC. 4208(B), AT
THE OPTION OF THE CONVICTED DEFENDANT. 

IT WOULD OBVIOUSLY CONTRAVENE THE BASIC POLICIES OF THE CRIMINAL
APPELLATE RULES TO REQUIRE A DEFENDANT SENTENCED UNDER SEC. 4208(B) TO
DEFER HIS APPEAL UNTIL AFTER HE HAD SUBMITTED TO THE THREE OR SIX
MONTHS OF INCARCERATION AND DIAGNOSTIC STUDY PRESCRIBED BY THE
STATUTE.  SUCH A REQUIREMENT WOULD NOT ONLY FORESTALL ANY OPPORTUNITY
OF A PROMPT APPEAL FROM AN UNDERLYING CRIMINAL CONVICTION, BUT WOULD
DEPRIVE A CONVICTED DEFENDANT OF THE SUBSTANTIAL RIGHT TO BE ENLARGED
ON BAIL WHILE HIS APPEAL WAS PENDING.  INDEED, THE IMPOSITION OF SUCH A
MANDATORY THREE- OR SIX-MONTH TERM OF IMPRISONMENT BEFORE THE DEFENDANT
COULD FILE AN APPEAL MIGHT RAISE CONSTITUTIONAL PROBLEMS OF SIGNIFICANT
PROPORTIONS. 

BUT WE NEED NOT CONSIDER SUCH PROBLEMS, BECAUSE A SEC. 4208(B)
COMMITMENT IS CLEARLY NOT LACKING IN SUFFICIENT "FINALITY" TO SUPPORT
AN IMMEDIATE APPEAL, AND THERE IS NOTHING TO INDICATE THAT CONGRESS
INTENDED THAT THE RIGHT OF APPEAL BE MANDATORILY SUSPENDED IN CASES
WHERE THE PROVISIONS OF SEC. 4208(B) ARE UTILIZED.  THE PROVISIONS OF
SEC. 4208(B) ARE INVOKED ONLY AFTER "A JUDGMENT OF CONVICTION."  (FN13)
THE DEFENDANT IS COMMITTED UNDER SEC. 4208(B) "TO THE CUSTODY OF THE
ATTORNEY GENERAL" AS IN THE CASE OF ALL SENTENCED PRISONERS.  (FN14)
IT IS PROVIDED THAT THE TERM OF THE FINAL SENTENCE "SHALL RUN FROM DATE
OF ORIGINAL COMMITMENT UNDER THIS SECTION." 

A SENTENCE UNDER THESE PROVISIONS, WHICH IS IMPOSED ONLY AFTER THE
WHOLE PROCESS OF THE CRIMINAL TRIAL AND DETERMINATION OF GUILT HAS BEEN
COMPLETED, SUFFICIENTLY SATISFIES CONVENTIONAL REQUIREMENTS OF FINALITY
FOR PURPOSES OF APPEAL.  THE LITIGATION IS COMPLETE AS TO THE
FUNDAMENTAL MATTER AT ISSUE - "THE RIGHT TO CONVICT THE ACCUSED OF THE
CRIME CHARGED IN THE INDICTMENT."  HEIKE V. UNITED STATES, 217 U.S.
423, 429.  "FINAL JUDGMENT IN A CRIMINAL CASE," THE COURT HAS SAID,
"MEANS SENTENCE.  THE SENTENCE IS THE JUDGMENT."  BERMAN V. UNITED
STATES, 302 U.S. 211, 212.  THIS CONCEPT WAS LATER EXPLAINED AND
AMPLIFIED IN WORDS OF COMPLETE APPLICABILITY HERE:  "THE 'SENTENCE IS
JUDGMENT' PHRASE HAS BEEN USED BY THIS COURT IN DEALING WITH CASES IN
WHICH THE ACTION OF THE TRIAL COURT DID NOT IN FACT SUBJECT THE
DEFENDANT TO ANY FORM OF JUDICIAL CONTROL  ...  .  BUT CERTAINLY WHEN
DISCIPLINE HAS BEEN IMPOSED, THE DEFENDANT IS ENTITLED TO REVIEW." 
KOREMATSU V. UNITED STATES, 319 U.S. 432, 434. 

FOR THESE REASONS IT IS CLEAR TO US THAT THE PETITIONER IN THE
PRESENT CASE COULD HAVE APPEALED HIS CONVICTION WITHIN 10 DAYS AFTER
THE ENTRY OF THE ORIGINAL COMMITMENT ORDER UNDER SEC. 4208(B).  HAD HE
DONE SO, THE COURT OF APPEALS COULD HAVE REVIEWED ALL CLAIMS OF ERROR
IN THE TRIAL PROCEEDINGS, AND ITS DETERMINATION WOULD HAVE BEEN FINAL,
(FN15) SUBJECT ONLY TO DISCRETIONARY REVIEW BY THIS COURT. 

IT DOES NOT FOLLOW, HOWEVER, SIMPLY BECAUSE A DEFENDANT COULD HAVE
SOUGHT REVIEW OF HIS CONVICTION AFTER THE INITIAL COMMITMENT UNDER SEC.
4208(B), THAT CONGRESS INTENDED TO DENY ALTOGETHER THE RIGHT OF APPEAL
TO A DEFENDANT WHO CHOSE TO ADOPT THE COURSE FOLLOWED BY THE PETITIONER
IN THE PRESENT CASE.  WHILE AN INITIAL COMMITMENT UNDER SEC. 4208(B)
IS, AS WE HAVE POINTED OUT, FREIGHTED WITH SUFFICIENTLY SUBSTANTIAL
INDICIA OF FINALITY TO SUPPORT AN APPEAL, THE FACT REMAINS THAT THE
PROCEEDINGS IN THE TRIAL COURT ARE NOT ACTUALLY TERMINATED UNTIL AFTER
THE PERIOD OF DIAGNOSTIC STUDY, REVIEW OF THE SAME BY THE DISTRICT
JUDGE, AND FINAL SENTENCE.  CF. UNITED STATES V. BEHRENS, ANTE, P.
162.  THERE MIGHT BE MANY REASONS WHY A CONVICTED DEFENDANT OR HIS
COUNSEL WOULD PREFER TO AWAIT FINAL TERMINATION OF THE TRIAL COURT
PROCEEDINGS BEFORE TAKING AN APPEAL.  FOR INSTANCE, A DEFENDANT MIGHT
THINK, RIGHTLY OR WRONGLY, THAT THE TRIAL COURT'S KNOWLEDGE THAT AN
APPEAL HAD ALREADY BEEN TAKEN MIGHT ADVERSELY INFLUENCE THE COURT'S
DISCRETION IN IMPOSING FINAL SENTENCE.  MOREOVER, IF EVERY DEFENDANT
INITIALLY COMMITTED UNDER SEC. 4208(B) TO THE MAXIMUM PRISON TERM
PRESCRIBED BY LAW WERE FACED WITH THE CHOICE OF THEN AND THERE SEEKING
REVIEW OF HIS CONVICTION OR FOREVER LOSING THE RIGHT OF APPEAL, HE
MIGHT WELL FEEL OBLIGED TO TAKE AN APPEAL BECAUSE OF HIS VERY IGNORANCE
OF WHAT HIS SENTENCE WAS EVENTUALLY GOING TO TURN OUT TO BE.  AS A
PRACTICAL MATTER, THE SEVERITY OF THE SENTENCE ACTUALLY IMPOSED MIGHT
IN ANY CASE BE A MAJOR FACTOR IN DETERMINING WHETHER AN APPEAL IS TO BE
TAKEN. 

LONG-ACCEPTED AND CONVENTIONAL PRINCIPLES OF FEDERAL APPELLATE
PROCEDURE REQUIRE RECOGNITION OF THE DEFENDANT'S RIGHT TO AWAIT THE
IMPOSITION OF FINAL SENTENCE BEFORE SEEKING REVIEW OF THE CONVICTION. 
THAT IS THE GENERAL RULE.  MILLER V. ADERHOLD, 288 U.S. 206; BERMAN V.
UNITED STATES, 302 U.S. 211; COBBLEDICK V. UNITED STATES, 309 U.S. 323;
RULE 37(A), FED.  RULES CRIM. PROC. WE FIND NOTHING TO INDICATE THAT
CONGRESS INTENDED TO DEPART FROM THAT RULE IN ENACTING SEC. 4208(B). 
REVERSED. 

FN1  18 U.S.C. SEC. 4208(B) PROVIDES: 

"IF THE COURT DESIRES MORE DETAILED INFORMATION AS A BASIS FOR
DETERMINING THE SENTENCE TO BE IMPOSED, THE COURT MAY COMMIT THE
DEFENDANT TO THE CUSTODY OF THE ATTORNEY GENERAL, WHICH COMMITMENT
SHALL BE DEEMED TO BE FOR THE MAXIMUM SENTENCE OF IMPRISONMENT
PRESCRIBED BY LAW, FOR A STUDY AS DESCRIBED IN SUBSECTION (C) HEREOF. 
THE RESULTS OF SUCH STUDY, TOGETHER WITH ANY RECOMMENDATIONS WHICH THE
DIRECTOR OF THE BUREAU OF PRISONS BELIEVES WOULD BE HELPFUL IN
DETERMINING THE DISPOSITION OF THE CASE, SHALL BE FURNISHED TO THE
COURT WITHIN THREE MONTHS UNLESS THE COURT GRANTS TIME, NOT TO EXCEED
AN ADDITIONAL THREE MONTHS, FOR FURTHER STUDY.  AFTER RECEIVING SUCH
REPORTS AND RECOMMENDATIONS, THE COURT MAY IN ITS DISCRETION:  (1)
PLACE THE PRISONER ON PROBATION AS AUTHORIZED BY SECTION 3651 OF THIS
TITLE, OR (2) AFFIRM THE SENTENCE OF IMPRISONMENT ORIGINALLY IMPOSED,
OR REDUCE THE SENTENCE OF IMPRISONMENT, AND COMMIT THE OFFENDER UNDER
ANY APPLICABLE PROVISION OF LAW.  THE TERM OF THE SENTENCE SHALL RUN
FROM DATE OF ORIGINAL COMMITMENT UNDER THIS SECTION." 

FN2  SEE NOTE 1, SUPRA. 

FN3  SINCE THE PETITIONER WAS CONVICTED UPON EACH OF 75 COUNTS UNDER
18 U.S.C. SEC. 287, AND SINCE EACH OFFENSE UNDER THAT STATUTE IS
PUNISHABLE BY A PRISON TERM OF UP TO FIVE YEARS, "THE EXTENT OF HIS
PUNISHMENT," IF IT WAS THE "MAXIMUM SENTENCE OF IMPRISONMENT PRESCRIBED
BY LAW," WAS 375 YEARS IN PRISON.  SUCH A SENTENCE, IF ACTUALLY IMPOSED
FOR THE SUBSTANTIVE OFFENSES IN QUESTION, WOULD OBVIOUSLY RAISE A
SERIOUS ISSUE UNDER THE EIGHTH AMENDMENT OF THE CONSTITUTION. 

FN4  IN BEHRENS V. UNITED STATES, 312 F.2D 223 (1962), CERTIORARI
GRANTED, 373 U.S. 902, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT,
HOLDING THAT THE DEFENDANT AND HIS COUNSEL MUST BE PRESENT WHEN
SENTENCE IS IMPOSED FOLLOWING RECEIPT OF THE BUREAU OF PRISONS REPORT,
APPARENTLY CONSIDERED THAT PROCEEDING - RATHER THAN THE EARLIER
COMMITMENT ORDER - AS THE ONE FROM WHICH THE TIME FOR APPEAL WOULD
BEGIN TO RUN.  ON THE QUESTION OF THE RIGHT OF THE DEFENDANT AND HIS
COUNSEL TO THEN BE PRESENT, WE HAVE TODAY AFFIRMED THAT DECISION. 
UNITED STATES V. BEHRENS, ANTE, P. 162.  SEE ALSO UNITED STATES V.
JOHNSON, 315 F.2D 714 (C.A.2D CIR. 1963). 

FN5  RULE 32(A), FED. RULES CRIM. PROC. 

FN6  RULE 32(B), FED. RULES CRIM. PROC. 

FN7  RULE 37(A)(2), FED. RULES CRIM. PROC. 

FN8  RULE 39(C), FED. RULES CRIM. PROC. 

FN9  RULE 39(D), FED. RULES CRIM. PROC. 

FN10  RULE 38(A)(2), FED. RULES CRIM. PROC. 

FN11  RULE 46(A)(2), FED. RULES CRIM. PROC. 

FN12  SECTION 4208(B) WAS ENACTED IN 1958 AS PART OF BROAD
LEGISLATION TO IMPROVE SENTENCING PRACTICES IN THE FEDERAL COURTS.  SEE
28 U.S.C. SEC. 334 (PROVIDING FOR JUDICIAL SENTENCING INSTITUTES TO BE
HELD IN THE VARIOUS CIRCUITS); 18 U.S.C. SEC. 4209 (EXTENDING THE
APPLICATION OF THE FEDERAL YOUTH CORRECTIONS ACT TO OFFENDERS BETWEEN
22 AND 26); 18 U.S.C. SEC. 4208(A) (AUTHORIZING A SENTENCING JUDGE TO
DELEGATE WIDE DISCRETION TO THE PAROLE BOARD). 

FN13  18 U.S.C. SEC. 4208(A) BEGINS:  "UPON ENTERING A JUDGMENT OF
CONVICTION, THE COURT HAVING JURISDICTION TO IMPOSE SENTENCE, WHEN IN
ITS OPINION THE ENDS OF JUSTICE AND BEST INTERESTS OF THE PUBLIC
REQUIRE THAT THE DEFENDANT BE SENTENCED TO IMPRISONMENT FOR A TERM
EXCEEDING ONE YEAR, MAY ...  ."  WHILE THESE WORDS ARE NOT REPEATED IN
SUBSECTION (B), IT IS PLAIN THAT THEY SERVE AS AN INTRODUCTION TO ALL
OF SEC. 4208. 

FN14  SEE 18 U.S.C. SEC. 4082. 

FN15  ONLY THE FINAL SENTENCE WHICH WAS LATER IMPOSED WOULD STILL
HAVE BEEN OPEN, UNDER ACCEPTED PROCEDURES, TO ATTACK IN THE TRIAL COURT
AND REVIEW ON APPEAL, E.G., FOR FAILURE TO ACCORD THE DEFENDANT AND HIS
COUNSEL THE RIGHT TO BE PRESENT AND TO BE HEARD AT THE FINAL SENTENCING
PROCEEDING.  SEE UNITED STATES V. BEHRENS, ANTE, P. 162.    IF A
DEFENDANT APPEALS AFTER A PRELIMINARY COMMITMENT UNDER SEC. 4208(B) AND
IS ENLARGED ON BAIL PENDING APPEAL, THE FURTHER PROCEDURES UNDER SEC.
4208(B) (INCLUDING THE PRONOUNCEMENT OF FINAL SENTENCE) WILL
NECESSARILY BE POSTPONED UNTIL THE APPEAL IS DETERMINED (AND ELIMINATED
ENTIRELY IF THE CONVICTION IS REVERSED), BECAUSE THE DIAGNOSTIC STUDY
BY THE BUREAU OF PRISONS CANNOT BE CARRIED OUT IF THE DEFENDANT IS NOT
INCARCERATED.  ON THE OTHER HAND, IF A DEFENDANT TAKING AN APPEAL AFTER
AN INITIAL COMMITMENT UNDER SEC. 4208(B) DOES NOT SEEK BAIL BUT ELECTS
TO COMMENCE SERVICE OF HIS SENTENCE, THERE IS NO REASON WHY THE
DIAGNOSTIC STUDY CONTEMPLATED BY THE STATUTE SHOULD NOT PROCEED. 
MODIFICATIONS OF SENTENCES HAVE IN FACT BEEN MADE UNDER SEC. 4208(B)
WHILE CASES WERE ON APPEAL.  SEE ARMSTRONG V. UNITED STATES, 306 F.2D
520, 521, N. 1 (C.A. 10TH CIR. 1962); UNITED STATES V. VARNER, 283 F.2D
900, 901 (C.A. 7TH CIR. 1961). 

MR. JUSTICE HARLAN, DISSENTING. 

WHILE I AGREE WITH THE MAJORITY THAT A CRIMINAL DEFENDANT WHO HAS
BEEN COMMITTED TO THE CUSTODY OF THE ATTORNEY GENERAL UNDER 18 U.S.C.
SEC. 4208(B) HAS THE RIGHT TO PROSECUTE AN IMMEDIATE APPEAL FROM THE
JUDGMENT OF CONVICTION, I AM UNABLE TO ACCEPT THE VIEW, SO CONTRARY TO
LONG-ACCEPTED PRINCIPLES GOVERNING THE TIME FOR SEEKING REVIEW, THAT HE
HAS ALSO THE ALTERNATIVE RIGHT TO AWAIT FINAL SENTENCING AND THEN
PROSECUTE AN APPEAL FROM THE JUDGMENT OF CONVICTION.  ACCORDINGLY, I
WOULD HOLD THAT THE PETITIONER'S ATTEMPTED APPEAL AT THAT STAGE OF THE
PROCEEDINGS WAS UNTIMELY. 

IT IS CLEAR THAT A SEC. 4208(B) COMMITMENT, WHICH IS NECESSARILY
PRECEDED BY A JUDGMENT OF CONVICTION, SEE 18 U.S.C. SEC. 4208(A), FULLY
SATISFIES THE REQUIREMENT OF FINALITY UNDER 28 U.S.C. SEC. 1291.  AT
THAT POINT IN THE PROCEEDINGS, THE MERITS HAVE BEEN FULLY LITIGATED,
THE DEFENDANT HAS BEEN ADJUDGED GUILTY, AND "DISCIPLINE HAS BEEN
IMPOSED,"  KOREMATSU V. UNITED STATES, 319 U.S. 432, 434.  IN THAT CASE
THE COURT HELD THAT AFTER A FINDING OF GUILT AN ORDER PLACING THE
DEFENDANT ON PROBATION WAS A FINAL APPEALABLE ORDER.  IN THE ABSENCE OF
AN EXPLICIT STATEMENT OF CONTRARY CONGRESSIONAL INTENT, (FN1) KOREMATSU
CONTROLS THIS CASE, IN WHICH THE DISCIPLINARY MEASURE TAKEN WAS AN
ACTUAL COMMITMENT TO PRISON.  THE LIBERALIZATION OF SENTENCING
PROCEDURES UNDER SEC. 4208(B) DOES NOT REQUIRE OR EVEN SUGGEST THAT A
DEFENDANT BE DEPRIVED OF HIS RIGHT SPEEDILY TO TEST THE VALIDITY OF HIS
CONVICTION. 

IT IS OTHERWISE, HOWEVER, WITH RESPECT TO AN APPEAL FOLLOWING THE
IMPOSITION OF FINAL SENTENCE IN ACCORDANCE WITH SEC. 4208(B).  OF
COURSE IT IS TRUE, AS THE MAJORITY POINTS OUT, THAT THE GENERAL RULE IS
THAT THE DEFENDANT MAY "AWAIT THE IMPOSITION OF FINAL SENTENCE BEFORE
SEEKING REVIEW OF THE CONVICTION," ANTE, P. 176.  INDEED, THE GENERAL
RULE IS THAT HE HAS NO CHOICE BUT TO WAIT.  THE MAJORITY AND I AGREE,
FOR THE REASONS STATED, THAT THE SEPARATION OF FINAL JUDGMENT AND FINAL
SENTENCE UNDER SEC. 4208(B) MAKES THE RULE INAPPLICABLE IN THIS
SITUATION.  NEVERTHELESS, AFTER HAVING DISCARDED THE RULE FOR ONE-HALF
OF ITS OPINION, THE MAJORITY RELIES ON IT AS A JUSTIFICATION FOR
ALLOWING THE DEFENDANT THE ALTERNATIVE OF POSTPONING HIS APPEAL UNTIL
LONG AFTER THE FINAL JUDGMENT OF CONVICTION HAS BEEN RENDERED.  THIS IS
EXPLAINED ONLY BY A DISTINCTION, NOVEL IN THIS CONTEXT, BETWEEN FINAL
JUDGMENTS AND PROCEEDINGS "NOT ACTUALLY TERMINATED," ANTE, P. 175. 
CONGRESS COULD, OF COURSE, ARM DEFENDANTS COMMITTED UNDER SEC. 4208(B)
WITH THIS DOUBLE-BARRELED SHOTGUN.  BUT THERE IS NOTHING TO INDICATE
THAT IT HAS DONE SO.  (FN2)  IN THE ABSENCE OF ANY SUCH INDICATIONS, SO
RADICAL A DEPARTURE FROM LONG-ESTABLISHED PROCEDURAL PRINCIPLES SHOULD
BE MADE, IN WHAT IS PRESUMABLY AN EXERCISE OF THIS COURT'S SUPERVISORY
POWER OVER THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE, ONLY WHERE
FAIRNESS IMPERATIVELY SO DEMANDS. 

THE MAJORITY FINDS SUCH NECESSITY IN A DEFENDANT'S POSSIBLE
PREFERENCE TO AWAIT FINAL SENTENCING BEFORE DECIDING WHETHER OR NOT TO
APPEAL.  A DEFENDANT, IT IS SUGGESTED, MIGHT FEAR THAT HIS TAKING OF AN
APPEAL WOULD HAVE AN ADVERSE IMPACT ON THE SENTENCING JUDGE; OR HE
MIGHT BE DISINCLINED TO APPEAL IF HE IS ULTIMATELY TO RECEIVE A LIGHT
SENTENCE.  NEITHER OF THESE POSSIBILITIES WARRANTS THE MAJORITY'S
INNOVATION IN REVIEW PROCEDURES.  IT SHOULD BE A SIMPLE MATTER FOR A
DEFENDANT WHO PREFERS TO AWAIT THE OUTCOME OF THE SEC. 4208(B)
PROCEEDING BEFORE PROSECUTING HIS APPEAL TO FILE A NOTICE OF APPEAL
WITHIN THE PRESCRIBED TIME AFTER THE ORIGINAL COMMITMENT AND THEN
SECURE A CONTINUANCE PENDING FINAL SENTENCING IN THE DISTRICT COURT. 
(FN3)  I SEE NO REASON WHY A COURT OF APPEALS SHOULD BE RELUCTANT TO
GRANT A CONTINUANCE IN THESE CIRCUMSTANCES; WERE THIS NOT THE CASE,
SUCH A REQUIREMENT COULD BE IMPOSED BY THIS COURT IN THE EXERCISE OF
ITS SUPERVISORY POWERS.  THAT A DEFENDANT MIGHT BELIEVE, SURELY IN ALL
BUT THE RARE INSTANCE INCORRECTLY, THAT THE MERE FILING OF A NOTICE OF
APPEAL WOULD WEIGH AGAINST HIM WITH THE SENTENCING JUDGE IS HARDLY A
PERSUASIVE CONSIDERATION; WITH AS MUCH REASON, HE MIGHT BELIEVE THAT IT
WOULD HAVE THE EFFECT OF STIMULATING THE SENTENCING JUDGE TO REDUCE HIS
SENTENCE.  IN ANY EVENT, IT IS SURELY INAPPROPRIATE TO STRUCTURE REVIEW
PROCEDURES AROUND HYPOTHETICAL BELIEFS OF DEFENDANTS IN THE
MALADMINISTRATION OF CRIMINAL JUSTICE. 

NEW PROCEDURES DESIGNED TO BETTER THE ADMINISTRATION OF CRIMINAL
JUSTICE, SUCH AS SEC. 4208(B), SHOULD NOT WITHOUT MANIFEST NEED BE THE
OCCASION FOR RADICAL DEPARTURES FROM ESTABLISHED THEORY AND PRACTICE. 
SEEING NO NEED FOR SUCH A DEPARTURE IN THIS CASE, I RESPECTFULLY
DISSENT AND WOULD AFFIRM THE JUDGMENT BELOW. 

FN1  I INTIMATE NO VIEW AS TO WHETHER SUCH A STATUTE WOULD INFRINGE
CONSTITUTIONAL RIGHTS. 

FN2  THERE IS NOW PENDING IN CONGRESS A BILL TO AMEND SEC. 4208 WHICH
PROVIDES THAT "THE RIGHT TO APPEAL SHALL RUN FROM THE DATE THE ORIGINAL
SENTENCE WAS IMPOSED UNDER SUBSECTION (B) OF THIS SECTION."  S. 1956,
88TH CONG., 1ST SESS. 

FN3  I AGREE WITH THE MAJORITY THAT IF A DEFENDANT ELECTS TO COMMENCE
SERVICE OF SENTENCE, THE FILING OF A NOTICE OF APPEAL IN THE COURT OF
APPEALS WOULD NOT PREVENT THE SEC. 4208(B) PROCEEDINGS FROM GOING
FORWARD IN THE DISTRICT COURT.  CASES LIKE BERMAN V. UNITED STATES, 302
U.S. 211, AND UNITED STATES V. SMITH, 331 U.S. 469, INVOLVED DIFFERENT
PROBLEMS AND ARE NOT RELEVANT IN THE PRESENT CONTEXT.  FINAL SEC.
4208(B) SENTENCES HAVE IN FACT BEEN IMPOSED IN THE DISTRICT COURT WHILE
AN APPEAL WAS PENDING.  SEE CASES CITED IN THE MAJORITY'S OPINION,
ANTE, P. 175, NOTE 15. 

THE REQUIREMENT OF RULE 39(D), FEDERAL RULES OF CRIMINAL PROCEDURE,
THAT AN APPEAL BE SET FOR ARGUMENT "NOT LESS THAN 30 DAYS AFTER THE
FILING  ...  OF THE RECORD ON APPEAL AND AS SOON AFTER THE EXPIRATION
OF THAT PERIOD AS THE STATE OF THE CALENDAR WILL PERMIT" WOULD
OBVIOUSLY NOT PREVENT A CONTINUANCE IN THESE CIRCUMSTANCES. 

OF COURSE, IF A DEFENDANT CHOOSES TO BE RELEASED ON BAIL PENDING
APPEAL, THE PROCEEDINGS UNDER SEC. 4208(B) WOULD THEN BE POSTPONED
UNTIL REMAND OF THE CASE TO THE DISTRICT COURT FOLLOWING APPELLATE
AFFIRMANCE OF THE CONVICTION. 
..END :






SECURITIES AND EXCHANGE COMMISSION V. CAPITAL GAINS RESEARCH BUREAU 375
U.S. 180 


NO. 42.  ARGUED OCTOBER 21, 1963.  - DECIDED DECEMBER 9, 1963.  - 306
F.2D 606, REVERSED AND REMANDED. 


UNDER THE INVESTMENT ADVISERS ACT OF 1940, THE SECURITIES AND EXCHANGE
COMMISSION MAY OBTAIN AN INJUNCTION COMPELLING A REGISTERED INVESTMENT
ADVISER TO DISCLOSE TO HIS CLIENTS A PRACTICE OF PURCHASING SHARES OF A
SECURITY FOR HIS OWN ACCOUNT SHORTLY BEFORE RECOMMENDING THAT SECURITY
FOR LONG-TERM INVESTMENT AND THEN IMMEDIATELY SELLING HIS OWN SHARES AT
A PROFIT UPON THE RISE IN THE MARKET PRICE FOLLOWING THE
RECOMMENDATION, SINCE SUCH A PRACTICE "OPERATES AS A FRAUD OR DECEIT
UPON ANY CLIENT OR PROSPECTIVE CLIENT," WITHIN THE MEANING OF THE ACT. 
PP. 181-201. 

(A)  CONGRESS, IN EMPOWERING THE COURTS TO ENJOIN ANY PRACTICE WHICH
OPERATES "AS A FRAUD OR DECEIT" UPON A CLIENT, DID NOT INTEND TO
REQUIRE PROOF OF INTENT TO INJURE AND ACTUAL INJURY TO THE CLIENT; IT
INTENDED THE ACT TO BE CONSTRUED LIKE OTHER SECURITIES LEGISLATION
"ENACTED FOR THE PURPOSE OF AVOIDING FRAUDS," NOT TECHNICALLY AND
RESTRICTIVELY, BUT RATHER FLEXIBLY TO EFFECTUATE ITS REMEDIAL
PURPOSES.  PP. 186-195. 

(B)  THE ACT EMPOWERS THE COURTS, UPON A SHOWING SUCH AS THAT MADE
HERE, TO REQUIRE AN ADVISER TO MAKE FULL AND FRANK DISCLOSURE OF HIS
PRACTICE OF TRADING ON THE EFFECT OF HIS RECOMMENDATIONS.  PP. 195
197. 

(C)  IN THE LIGHT OF THE EVIDENT PURPOSE OF THE ACT TO SUBSTITUTE A
PHILOSOPHY OF DISCLOSURE FOR THE PHILOSOPHY OF CAVEAT EMPTOR, IT CANNOT
BE ASSUMED THAT THE OMISSION FROM THE ACT OF A SPECIFIC PROSCRIPTION
AGAINST NONDISCLOSURE WAS INTENDED TO LIMIT THE APPLICATION OF THE
ANTIFRAUD AND ANTIDECEIT PROVISIONS OF THE ACT SO AS TO RENDER THE
COMMISSION IMPOTENT TO ENJOIN SUPPRESSION OF MATERIAL FACTS.  PP. 197
199. 

(D)  THE 1960 AMENDMENT TO THE ACT DOES NOT JUSTIFY A NARROW
INTERPRETATION OF THE ORIGINAL ENACTMENT.  PP. 199-200. 

(E)  EVEN IF RESPONDENT'S ADVICE WAS "HONEST," IN THE SENSE THAT THEY
BELIEVED IT WAS SOUND AND DID NOT OFFER IT FOR THE PURPOSE OF
FURTHERING PERSONAL PECUNIARY OBJECTIVES, THE COMMISSION WAS ENTITLED
TO AN INJUNCTION REQUIRING DISCLOSURE.  PP. 200-201. 

SECURITIES AND EXCHANGE COMMISSION V. CAPITAL GAINS RESEARCH BUREAU,
INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON IN THIS CASE TO DECIDE WHETHER UNDER THE
INVESTMENT ADVISERS ACT OF 1940 (FN1) THE SECURITIES AND EXCHANGE
COMMISSION MAY OBTAIN AN INJUNCTION COMPELLING A REGISTERED INVESTMENT
ADVISER TO DISCLOSE TO HIS CLIENTS A PRACTICE OF PURCHASING SHARES OF A
SECURITY FOR HIS OWN ACCOUNT SHORTLY BEFORE RECOMMENDING THAT SECURITY
FOR LONG-TERM INVESTMENT AND THEN IMMEDIATELY SELLING THE SHARES AT A
PROFIT UPON THE RISE IN THE MARKET PRICE FOLLOWING THE RECOMMENDATION. 
THE ANSWER TO THIS QUESTION TURNS ON WHETHER THE PRACTICE - KNOWN IN
THE TRADE AS "SCALPING" - "OPERATES AS A FRAUD OR DECEIT UPON ANY
CLIENT OR PROSPECTIVE CLIENT" WITHIN THE MEANING OF THE ACT.  (FN2)  WE
HOLD THAT IT DOES AND THAT THE COMMISSION MAY "ENFORCE COMPLIANCE" WITH
THE ACT BY OBTAINING AN INJUNCTION REQUIRING THE ADVISER TO MAKE FULL
DISCLOSURE OF THE PRACTICE TO HIS CLIENTS.  (FN3) 

THE COMMISSION BROUGHT THIS ACTION AGAINST RESPONDENTS IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.  AT THE
HEARING ON THE APPLICATION FOR A PRELIMINARY INJUNCTION, THE FOLLOWING
FACTS WERE ESTABLISHED.  RESPONDENTS PUBLISH TWO INVESTMENT ADVISORY
SERVICES, ONE OF WHICH - "A CAPITAL GAINS REPORT" - IS THE SUBJECT OF
THIS PROCEEDING.  THE REPORT IS MAILED MONTHLY TO APPROXIMATELY 5,000
SUBSCRIBERS WHO EACH PAY AN ANNUAL SUBSCRIPTION PRICE OF $18.  IT
CARRIES THE FOLLOWING DESCRIPTION: 

"AN INVESTMENT SERVICE DEVOTED EXCLUSIVELY TO (1) THE PROTECTION OF
INVESTMENT CAPITAL.  (2) THE REALIZATION OF A STEADY AND ATTRACTIVE
INCOME THEREFROM.  (3) THE ACCUMULATION OF CAPITAL GAINS THRU THE
TIMELY PURCHASE OF CORPORATE EQUITIES THAT ARE PROVED TO BE
UNDERVALUED." 

BETWEEN MARCH 15, 1960, AND NOVEMBER 7, 1960, RESPONDENTS, ON SIX
DIFFERENT OCCASIONS, PURCHASED SHARES OF A PARTICULAR SECURITY SHORTLY
BEFORE RECOMMENDING IT IN THE REPORT FOR LONG-TERM INVESTMENT.  ON EACH
OCCASION, THERE WAS AN INCREASE IN THE MARKET PRICE AND THE VOLUME OF
TRADING OF THE RECOMMENDED SECURITY WITHIN A FEW DAYS AFTER THE
DISTRIBUTION OF THE REPORT.  IMMEDIATELY THEREAFTER, RESPONDENTS SOLD
THEIR SHARES OF THESE SECURITIES AT A PROFIT.  (FN4)  THEY DID NOT
DISCLOSE ANY ASPECT OF THESE TRANSACTIONS TO THEIR CLIENTS OR
PROSPECTIVE CLIENTS. 

ON THE BASIS OF THE ABOVE FACTS, THE COMMISSION REQUESTED A
PRELIMINARY INJUNCTION AS NECESSARY TO EFFECTUATE THE PURPOSES OF THE
INVESTMENT ADVISERS ACT OF 1940.  THE INJUNCTION WOULD HAVE REQUIRED
RESPONDENTS, IN ANY FUTURE REPORT, TO DISCLOSE THE MATERIAL FACTS
CONCERNING, INTER ALIA, ANY PURCHASE OF RECOMMENDED SECURITIES "WITHIN
A VERY SHORT PERIOD PRIOR TO THE DISTRIBUTION OF A RECOMMENDATION  ...
," AND "THE INTENT TO SELL AND THE SALE OF SAID SECURITIES  ...  WITHIN
A VERY SHORT PERIOD AFTER DISTRIBUTION OF SAID RECOMMENDATION  ...  ." 
(FN5) 

THE DISTRICT COURT DENIED THE REQUEST FOR A PRELIMINARY INJUNCTION,
HOLDING THAT THE WORDS "FRAUD" AND "DECEIT" ARE USED IN THE INVESTMENT
ADVISERS ACT OF 1940 "IN THEIR TECHNICAL SENSE" AND THAT THE COMMISSION
HAD FAILED TO SHOW AN INTENT TO INJURE CLIENTS OR AN ACTUAL LOSS OF
MONEY TO CLIENTS.  191 F. SUPP. 897.  THE COURT OF APPEALS FOR THE
SECOND CIRCUIT, SITTING EN BANC, BY A 5-TO-4 VOTE ACCEPTED THE DISTRICT
COURT'S LIMITED CONSTRUCTION OF "FRAUD" AND "DECEIT" AND AFFIRMED THE
DENIAL OF INJUNCTIVE RELIEF.  (FN6)  306 F.2D 606.  THE MAJORITY
CONCLUDED THAT NO VIOLATION OF THE ACT COULD BE FOUND ABSENT PROOF THAT
"ANY MISSTATEMENTS OR FALSE FIGURES WERE CONTAINED IN ANY OF THE
BULLETINS"; OR THAT "THE INVESTMENT ADVICE WAS UNSOUND"; OR THAT
"DEFENDANTS WERE BEING BRIBED OR PAID TO TOUT A STOCK CONTRARY TO THEIR
OWN BELIEFS"; OR THAT "THESE BULLETINS WERE A SCHEME TO GET RID OF
WORTHLESS STOCK"; OR THAT THE RECOMMENDATIONS WERE MADE "FOR THE
PURPOSE OF ENDEAVORING ARTIFICIALLY TO RAISE THE MARKET SO THAT
RESPONDENTS MIGHT UNLOAD THEIR HOLDINGS AT A PROFIT."  ID., AT 608
609.  THE FOUR DISSENTING JUDGES POINTED OUT THAT "THE COMMON-LAW
DOCTRINES OF FRAUD AND DECEIT GREW UP IN A BUSINESS CLIMATE VERY
DIFFERENT FROM THAT INVOLVED IN THE SALE OF SECURITIES," AND URGED A
BROAD REMEDIAL CONSTRUCTION OF THE STATUTE WHICH WOULD ENCOMPASS
RESPONDENTS' CONDUCT.  ID., AT 614.  WE GRANTED CERTIORARI TO CONSIDER
THE QUESTION OF STATUTORY CONSTRUCTION BECAUSE OF ITS IMPORTANCE TO THE
INVESTING PUBLIC AND THE FINANCIAL COMMUNITY.  371 U.S. 967. 

THE DECISION IN THIS CASE TURNS ON WHETHER CONGRESS, IN EMPOWERING
THE COURTS TO ENJOIN ANY PRACTICE WHICH OPERATES "AS A FRAUD OR DECEIT
UPON ANY CLIENT OR PROSPECTIVE CLIENT," INTENDED TO REQUIRE THE
COMMISSION TO ESTABLISH FRAUD AND DECEIT "IN THEIR TECHNICAL SENSE,"
INCLUDING INTENT TO INJURE AND INJURY TO CLIENTS, OR WHETHER CONGRESS
INTENDED A BROAD REMEDIAL CONSTRUCTION OF THE ACT WHICH WOULD ENCOMPASS
NONDISCLOSURE OF MATERIAL FACTS.  FOR RESOLUTION OF THIS ISSUE WE
CONSIDER THE HISTORY AND PURPOSE OF THE INVESTMENT ADVISERS ACT OF
1940. 

                            I. 

THE INVESTMENT ADVISERS ACT OF 1940 WAS THE LAST IN A SERIES OF ACTS
DESIGNED TO ELIMINATE CERTAIN ABUSES IN THE SECURITIES INDUSTRY, ABUSES
WHICH WERE FOUND TO HAVE CONTRIBUTED TO THE STOCK MARKET CRASH OF 1929
AND THE DEPRESSION OF THE 1930'S.  (FN7)  IT WAS PRECEDED BY THE
SECURITIES ACT OF 1933, (FN8) THE SECURITIES EXCHANGE ACT OF 1934,
(FN9) THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, (FN10) THE TRUST
INDENTURE ACT OF 1939, (FN11) AND THE INVESTMENT COMPANY ACT OF 1940. 
(FN12)  A FUNDAMENTAL PURPOSE, COMMON TO THESE STATUTES, WAS TO
SUBSTITUTE A PHILOSOPHY OF FULL DISCLOSURE FOR THE PHILOSOPHY OF CAVEAT
EMPTOR AND THUS TO ACHIEVE A HIGH STANDARD OF BUSINESS ETHICS IN THE
SECURITIES INDUSTRY.  (FN13)  AS WE RECENTLY SAID IN A RELATED CONTEXT,
"IT REQUIRES BUT LITTLE APPRECIATION  ...  OF WHAT HAPPENED IN THIS
COUNTRY DURING THE 1920'S AND 1930'S TO REALIZE HOW ESSENTIAL IT IS
THAT THE HIGHEST ETHICAL STANDARDS PREVAIL" IN EVERY FACET OF THE
SECURITIES INDUSTRY.  SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S. 341,
366. 

THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 "AUTHORIZED AND
DIRECTED" THE SECURITIES AND EXCHANGE COMMISSION "TO MAKE A STUDY OF
THE FUNCTIONS AND ACTIVITIES OF INVESTMENT TRUSTS AND INVESTMENT
COMPANIES  ...  ."  (FN14)  PURSUANT TO THIS MANDATE, THE COMMISSION
MADE AN EXHAUSTIVE STUDY AND REPORT WHICH INCLUDED CONSIDERATION OF
INVESTMENT COUNSEL AND INVESTMENT ADVISORY SERVICES.  (FN15)  THIS
ASPECT OF THE STUDY AND REPORT CULMINATED IN THE INVESTMENT ADVISERS
ACT OF 1940. 

THE REPORT REFLECTS THE ATTITUDE - SHARED BY INVESTMENT ADVISERS AND
THE COMMISSION - THAT INVESTMENT ADVISERS COULD NOT "COMPLETELY PERFORM
THEIR BASIC FUNCTION - FURNISHING TO CLIENTS ON A PERSONAL BASIS
COMPETENT, UNBIASED, AND CONTINUOUS ADVICE REGARDING THE SOUND
MANAGEMENT OF THEIR INVESTMENTS - UNLESS ALL CONFLICTS OF INTEREST
BETWEEN THE INVESTMENT COUNSEL AND THE CLIENT WERE REMOVED."  (FN16)
THE REPORT STRESSED THAT AFFILIATIONS BY INVESTMENT ADVISERS WITH
INVESTMENT BANKERS, OR CORPORATIONS MIGHT BE "AN IMPEDIMENT TO A
DISINTERESTED, OBJECTIVE, OR CRITICAL ATTITUDE TOWARD AN INVESTMENT BY
CLIENTS  ...  ."  (FN17) 

THIS CONCERN WAS NOT LIMITED TO DELIBERATE OR CONSCIOUS IMPEDIMENTS
TO OBJECTIVITY.  BOTH THE ADVISERS AND THE COMMISSION WERE WELL AWARE
THAT WHENEVER ADVICE TO A CLIENT MIGHT RESULT IN FINANCIAL BENEFIT TO
THE ADVISER - OTHER THAN THE FEE FOR HIS ADVICE - "THAT ADVICE TO A
CLIENT MIGHT IN SOME WAY BE TINGED WITH THAT PECUNIARY INTEREST
(WHETHER CONSCIOUSLY OR) SUBCONSCIOUSLY MOTIVATED  ...  ."  (FN18)  THE
REPORT QUOTED ONE LEADING INVESTMENT ADVISER WHO SAID THAT HE "WOULD
PUT THE EMPHASIS  ...  ON SUBCONSCIOUS" MOTIVATION IN SUCH SITUATIONS. 
(FN19)  IT QUOTED A MEMBER OF THE COMMISSION STAFF WHO SUGGESTED THAT A
SIGNIFICANT PART OF THE PROBLEM WAS NOT THE EXISTENCE OF A "DELIBERATE
INTENT" TO OBTAIN A FINANCIAL ADVANTAGE, BUT RATHER THE EXISTENCE
"SUBCONSCIOUSLY OF A PREJUDICE" IN FAVOR OF ONE'S OWN FINANCIAL
INTERESTS.  (FN20)  THE REPORT INCORPORATED THE CODE OF ETHICS AND
STANDARDS OF PRACTICE OF ONE OF THE LEADING INVESTMENT COUNSEL
ASSOCIATIONS, WHICH CONTAINED THE FOLLOWING CANON: 

"AN INVESTMENT ADVISER SHOULD CONTINUOUSLY OCCUPY AN IMPARTIAL AND
DISINTERESTED POSITION, AS FREE AS HUMANLY POSSIBLE FROM THE SUBTLE
INFLUENCE OF PREJUDICE, CONSCIOUS OR UNCONSCIOUS; HE SHOULD
SCRUPULOUSLY AVOID ANY AFFILIATION, OR ANY ACT, WHICH SUBJECTS HIS
POSITION TO CHALLENGE IN THIS RESPECT."  (FN21) 

OTHER CANONS APPENDED TO THE REPORT ANNOUNCED THE FOLLOWING GUIDING
PRINCIPLES:  THAT COMPENSATION FOR INVESTMENT ADVICE "SHOULD CONSIST
EXCLUSIVELY OF DIRECT CHARGES TO CLIENTS FOR SERVICES RENDERED"; (FN22)
THAT THE ADVISER SHOULD DEVOTE HIS TIME "EXCLUSIVELY TO THE
PERFORMANCE" OF HIS ADVISORY FUNCTION; (FN23) THAT HE SHOULD NOT "SHARE
IN PROFITS" OF HIS CLIENTS; (FN24) AND THAT HE SHOULD NOT "DIRECTLY OR
INDIRECTLY ENGAGE IN ANY ACTIVITY WHICH MAY JEOPARDIZE HIS ABILITY TO
RENDER UNBIASED INVESTMENT ADVICE."  (FN25)  THESE CANONS WERE ADOPTED
"TO THE END THAT THE QUALITY OF SERVICES TO BE RENDERED BY INVESTMENT
COUNSELORS MAY MEASURE UP TO THE HIGH STANDARDS WHICH THE PUBLIC HAS A
RIGHT TO EXPECT AND TO DEMAND."  (FN26) 

ONE ACTIVITY SPECIFICALLY MENTIONED AND CONDEMNED BY INVESTMENT
ADVISERS WHO TESTIFIED BEFORE THE COMMISSION WAS "TRADING BY INVESTMENT
COUNSELORS FOR THEIR OWN ACCOUNT IN SECURITIES IN WHICH THEIR CLIENTS
WERE INTERESTED  ...  ."  (FN27) 

THIS STUDY AND REPORT - AUTHORIZED AND DIRECTED BY STATUTE (FN28) -
CULMINATED IN THE PREPARATION AND INTRODUCTION BY SENATOR WAGNER OF THE
BILL WHICH, WITH SOME CHANGES, BECAME THE INVESTMENT ADVISERS ACT OF
1940.  (FN29)  IN ITS "DECLARATION OF POLICY" THE ORIGINAL BILL STATED
THAT: 

"UPON THE BASIS OF FACTS DISCLOSED BY THE RECORD AND REPORT OF THE
SECURITIES AND EXCHANGE COMMISSION  ...  IT IS HEREBY DECLARED THAT THE
NATIONAL PUBLIC INTEREST AND THE INTEREST OF INVESTORS ARE ADVERSELY
AFFECTED -  ...  (4) WHEN THE BUSINESS OF INVESTMENT ADVISERS IS SO
CONDUCTED AS TO DEFRAUD OR MISLEAD INVESTORS, OR TO ENABLE SUCH
ADVISERS TO RELIEVE THEMSELVES OF THEIR FIDUCIARY OBLIGATIONS TO THEIR
CLIENTS.  "IT IS HEREBY DECLARED THAT THE POLICY AND PURPOSES OF THIS
TITLE, IN ACCORDANCE WITH WHICH THE PROVISIONS OF THIS TITLE SHALL BE
INTERPRETED, ARE TO MITIGATE AND, SO FAR AS IS PRESENTLY PRACTICABLE TO
ELIMINATE THE ABUSES ENUMERATED IN THIS SECTION."  S. 3580, 76TH CONG.,
3D SESS., SEC. 202. 

HEARINGS WERE THEN HELD BEFORE COMMITTEES OF BOTH HOUSES OF
CONGRESS.  (FN30)  IN DESCRIBING THEIR PROFESSION, LEADING INVESTMENT
ADVISERS EMPHASIZED THEIR RELATIONSHIP OF "TRUST AND CONFIDENCE" WITH
THEIR CLIENTS (FN31) AND THE IMPORTANCE OF "STRICT LIMITATION OF THEIR
RIGHT TO BUY AND SELL SECURITIES IN THE NORMAL WAY IF THERE IS ANY
CHANCE AT ALL THAT TO DO SO MIGHT SEEM TO OPERATE AGAINST THE INTERESTS
OF CLIENTS AND THE PUBLIC."  (FN32)  THE PRESIDENT OF THE INVESTMENT
COUNSEL ASSOCIATION OF AMERICA, THE LEADING INVESTMENT COUNSEL
ASSOCIATION, TESTIFIED THAT THE: 

"TWO FUNDAMENTAL PRINCIPLES UPON WHICH THE PIONEERS IN THIS NEW
PROFESSION UNDERTOOK TO MEET THE GROWING NEED FOR UNBIASED INVESTMENT
INFORMATION AND GUIDANCE WERE, FIRST, THAT THEY WOULD LIMIT THEIR
EFFORTS AND ACTIVITIES TO THE STUDY OF INVESTMENT PROBLEMS FROM THE
INVESTOR'S STANDPOINT, NOT ENGAGING IN ANY OTHER ACTIVITY, SUCH AS
SECURITY SELLING OR BROKERAGE, WHICH MIGHT DIRECTLY OR INDIRECTLY BIAS
THEIR INVESTMENT JUDGMENT; AND, SECOND, THAT THEIR REMUNERATION FOR
THIS WORK WOULD CONSIST SOLELY OF DEFINITE, PROFESSIONAL FEES FULLY
DISCLOSED IN ADVANCE."  (FN33) 

ALTHOUGH CERTAIN CHANGES WERE MADE IN THE BILL FOLLOWING THE HEARINGS,
(FN34) THERE IS NOTHING TO INDICATE AN INTENT TO ALTER THE FUNDAMENTAL
PURPOSES OF THE LEGISLATION.  THE BROAD PROSCRIPTION AGAINST "ANY  ...
PRACTICE  ...  WHICH OPERATES  ...  AS A FRAUD OR DECEIT UPON ANY
CLIENT OR PROSPECTIVE CLIENT" REMAINED IN THE BILL FROM BEGINNING TO
END.  AND THE COMMITTEE REPORTS INDICATE A DESIRE TO PRESERVE "THE
PERSONALIZED CHARACTER OF THE SERVICES OF INVESTMENT ADVISERS," (FN35)
AND TO ELIMINATE CONFLICTS OF INTEREST BETWEEN THE INVESTMENT ADVISER
AND THE CLIENTS (FN36) AS SAFEGUARDS BOTH TO "UNSOPHISTICATED
INVESTORS" AND TO "BONA FIDE INVESTMENT COUNSEL."  (FN37)  THE
INVESTMENT ADVISERS ACT OF 1940 THUS REFLECTS A CONGRESSIONAL
RECOGNITION "OF THE DELICATE FIDUCIARY NATURE OF AN INVESTMENT ADVISORY
RELATIONSHIP," (FN38) AS WELL AS A CONGRESSIONAL INTENT TO ELIMINATE,
OR AT LEAST TO EXPOSE, ALL CONFLICTS OF INTEREST WHICH MIGHT INCLINE AN
INVESTMENT ADVISER - CONSCIOUSLY OR UNCONSCIOUSLY - TO RENDER ADVICE
WHICH WAS NOT DISINTERESTED.  IT WOULD DEFEAT THE MANIFEST PURPOSE OF
THE INVESTMENT ADVISERS ACT OF 1940 FOR US TO HOLD, THEREFORE, THAT
CONGRESS, IN EMPOWERING THE COURTS TO ENJOIN ANY PRACTICE WHICH
OPERATES "AS A FRAUD OR DECEIT," INTENDED TO REQUIRE PROOF OF INTENT TO
INJURE AND ACTUAL INJURY TO CLIENTS.    THIS CONCLUSION MOREOVER, IS
NOT IN DEROGATION OF THE COMMON LAW OF FRAUD, AS THE DISTRICT COURT AND
THE MAJORITY OF THE COURT OF APPEALS SUGGESTED.  TO THE CONTRARY, IT
FINDS SUPPORT IN THE PROCESS BY WHICH THE COURTS HAVE ADAPTED THE
COMMON LAW OF FRAUD TO THE COMMERCIAL TRANSACTIONS OF OUR SOCIETY.  IT
IS TRUE THAT AT COMMON LAW INTENT AND INJURY HAVE BEEN DEEMED ESSENTIAL
ELEMENTS IN A DAMAGE SUIT BETWEEN PARTIES TO AN ARM'S-LENGTH
TRANSACTION.  (FN39)  BUT THIS IS NOT SUCH AN ACTION.  (FN40)  THIS IS
A SUIT FOR A PRELIMINARY INJUNCTION IN WHICH THE RELIEF SOUGHT IS, AS
THE DISSENTING JUDGES BELOW CHARACTERIZED IT, THE "MILD PROPHYLACTIC,"
306 F.2D, AT 613, OF REQUIRING A FIDUCIARY TO DISCLOSE TO HIS CLIENTS,
NOT ALL HIS SECURITY HOLDINGS, BUT ONLY HIS DEALINGS IN RECOMMENDED
SECURITIES JUST BEFORE AND AFTER THE ISSUANCE OF HIS RECOMMENDATIONS. 

THE CONTENT OF COMMON-LAW FRAUD HAS NOT REMAINED STATIC AS THE COURTS
BELOW SEEM TO HAVE ASSUMED.  IT HAS VARIED, FOR EXAMPLE, WITH THE
NATURE OF THE RELIEF SOUGHT, THE RELATIONSHIP BETWEEN THE PARTIES, AND
THE MERCHANDISE IN ISSUE.  IT IS NOT NECESSARY IN A SUIT FOR EQUITABLE
OR PROPHYLACTIC RELIEF TO ESTABLISH ALL THE ELEMENTS REQUIRED IN A SUIT
FOR MONETARY DAMAGES. 

"LAW HAD COME TO REGARD FRAUD  ...  AS PRIMARILY A TORT, AND HEDGED
ABOUT WITH STRINGENT REQUIREMENTS, THE CHIEF OF WHICH WAS A STRONG
MORAL, OR RATHER IMMORAL ELEMENT, WHILE EQUITY REGARDED IT, AS IT HAD
ALL ALONG REGARDED IT, AS A CONVENIENTLY COMPREHENSIVE WORD FOR THE
EXPRESSION OF A LAPSE FROM THE HIGH STANDARD OF CONSCIENTIOUSNESS THAT
IT EXACTED FROM ANY PARTY OCCUPYING A CERTAIN CONTRACTUAL OR FIDUCIARY
RELATION TOWARDS ANOTHER PARTY."  (FN41) 

"FRAUD HAS A BROADER MEANING IN EQUITY THAN AT LAW AND INTENTION TO
DEFRAUD OR TO MISREPRESENT IS NOT A NECESSARY ELEMENT."  (FN42) 

"FRAUD, INDEED, IN THE SENSE OF A COURT OF EQUITY PROPERLY INCLUDES
ALL ACTS, OMISSIONS AND CONCEALMENTS WHICH INVOLVE A BREACH OF LEGAL OR
EQUITABLE DUTY, TRUST, OR CONFIDENCE, JUSTLY REPOSED, AND ARE INJURIOUS
TO ANOTHER, OR BY WHICH AN UNDUE AND UNCONSCIENTIOUS ADVANTAGE IS TAKEN
OF ANOTHER."  (FN43) 

NOR IS IT NECESSARY IN A SUIT AGAINST A FIDUCIARY, WHICH CONGRESS
RECOGNIZED THE INVESTMENT ADVISER TO BE, TO ESTABLISH ALL THE ELEMENTS
REQUIRED IN A SUIT AGAINST A PARTY TO AN ARM'S-LENGTH TRANSACTION. 
COURTS HAVE IMPOSED ON A FIDUCIARY AN AFFIRMATIVE DUTY OF "UTMOST GOOD
FAITH, AND FULL AND FAIR DISCLOSURE OF ALL MATERIAL FACTS," (FN44) AS
WELL AS AN AFFIRMATIVE OBLIGATION "TO EMPLOY REASONABLE CARE TO AVOID
MISLEADING" (FN45) HIS CLIENTS.  THERE HAS ALSO BEEN A GROWING
RECOGNITION BY COMMON-LAW COURTS THAT THE DOCTRINES OF FRAUD AND DECEIT
WHICH DEVELOPED AROUND TRANSACTIONS INVOLVING LAND AND OTHER TANGIBLE
ITEMS OF WEALTH ARE ILL-SUITED TO THE SALE OF SUCH INTANGIBLES AS
ADVICE AND SECURITIES, AND THAT, ACCORDINGLY, THE DOCTRINES MUST BE
ADAPTED TO THE MERCHANDISE IN ISSUE.  (FN46)  THE 1909 NEW YORK CASE OF
RIDGELY V. KEENE, 134 APP. DIV. 647, 119 N.Y. SUPP. 451, ILLUSTRATES
THIS CONTINUING DEVELOPMENT.  AN INVESTMENT ADVISER WHO, LIKE
RESPONDENTS, PUBLISHED AN INVESTMENT ADVISORY SERVICE, AGREED, FOR
COMPENSATION, TO INFLUENCE HIS CLIENTS TO BUY SHARES IN A CERTAIN
SECURITY.  HE DID NOT DISCLOSE THE AGREEMENT TO HIS CLIENT BUT SOUGHT
"TO EXCUSE HIS CONDUCT BY ASSERTING THAT  ...  HE HONESTLY BELIEVED,
THAT HIS SUBSCRIBERS WOULD PROFIT BY HIS ADVICE  ... ."  THE COURT,
HOLDING THAT "HIS BELIEF IN THE SOUNDNESS OF HIS ADVICE IS WHOLLY
IMMATERIAL," DECLARED THE ACT IN QUESTION "A PALPABLE FRAUD." 

WE CANNOT ASSUME THAT CONGRESS, IN ENACTING LEGISLATION TO PREVENT
FRAUDULENT PRACTICES BY INVESTMENT ADVISERS, WAS UNAWARE OF THESE
DEVELOPMENTS IN THE COMMON LAW OF FRAUD.  THUS, EVEN IF WE WERE TO
AGREE WITH THE COURTS BELOW THAT CONGRESS HAD INTENDED, IN EFFECT, TO
CODIFY THE COMMON LAW OF FRAUD IN THE INVESTMENT ADVISERS ACT OF 1940,
IT WOULD BE LOGICAL TO CONCLUDE THAT CONGRESS CODIFIED THE COMMON LAW
"REMEDIALLY" AS THE COURTS HAD ADAPTED IT TO THE PREVENTION OF
FRAUDULENT SECURITIES TRANSACTIONS BY FIDUCIARIES, NOT "TECHNICALLY" AS
IT HAS TRADITIONALLY BEEN APPLIED IN DAMAGE SUITS BETWEEN PARTIES TO
ARM'S-LENGTH TRANSACTIONS INVOLVING LAND AND ORDINARY CHATTELS. 

THE FOREGOING ANALYSIS OF THE JUDICAL TREATMENT OF COMMON-LAW FRAUD
REINFORCES OUR CONCLUSION THAT CONGRESS, IN EMPOWERING THE COURTS TO
ENJOIN ANY PRACTICE WHICH OPERATES "AS A FRAUD OR DECEIT" UPON A
CLIENT, DID NOT INTEND TO REQUIRE PROOF OF INTENT TO INJURE AND ACTUAL
INJURY TO THE CLIENT.  CONGRESS INTENDED THE INVESTMENT ADVISERS ACT OF
1940 TO BE CONSTRUED LIKE OTHER SECURITIES LEGISLATION "ENACTED FOR THE
PURPOSE OF AVOIDING FRAUDS," (FN47) NOT TECHNICALLY AND RESTRICTIVELY,
BUT FLEXIBLY TO EFFECTUATE ITS REMEDIAL PURPOSES. 

WE TURN NOW TO A CONSIDERATION OF WHETHER THE SPECIFIC CONDUCT HERE
IN ISSUE WAS THE TYPE WHICH CONGRESS INTENDED TO REACH IN THE
INVESTMENT ADVISERS ACT OF 1940.  IT IS ARGUABLE - INDEED IT WAS ARGUED
BY "SOME INVESTMENT COUNSEL REPRESENTATIVES" WHO TESTIFIED BEFORE THE
COMMISSION - THAT ANY "TRADING BY INVESTMENT COUNSELORS FOR THEIR OWN
ACCOUNT IN SECURITIES IN WHICH THEIR CLIENTS WERE INTERESTED  ...  "
(FN48) CREATES A POTENTIAL CONFLICT OF INTEREST WHICH MUST BE
ELIMINATED.  WE NEED NOT GO THAT FAR IN THIS CASE, SINCE HERE THE
COMMISSION SEEKS ONLY DISCLOSURE OF A CONFLICT OF INTERESTS WITH
SIGNIFICANTLY GREATER POTENTIAL FOR ABUSE THAN IN THE SITUATION
DESCRIBED ABOVE.  AN ADVISER WHO, LIKE RESPONDENTS, SECRETLY TRADES ON
THE MARKET EFFECT OF HIS OWN RECOMMENDATION MAY BE MOTIVATED -
CONSCIOUSLY OR UNCONSCIOUSLY - TO RECOMMEND A GIVEN SECURITY NOT
BECAUSE OF ITS POTENTIAL FOR LONG-RUN PRICE INCREASE (WHICH WOULD
PROFIT THE CLIENT), BUT BECAUSE OF ITS POTENTIAL FOR SHORT-RUN PRICE
INCREASE IN RESPONSE TO ANTICIPATED ACTIVITY FROM THE RECOMMENDATION
(WHICH WOULD PROFIT THE ADVISER).  (FN49)  AN INVESTOR SEEKING THE
ADVICE OF A REGISTERED INVESTMENT ADVISER MUST, IF THE LEGISLATIVE
PURPOSE IS TO BE SERVED, BE PERMITTED TO EVALUATE SUCH OVERLAPPING
MOTIVATIONS, THROUGH APPROPRIATE DISCLOSURE, IN DECIDING WHETHER AN
ADVISER IS SERVING "TWO MASTERS" OR ONLY ONE, "ESPECIALLY  ...  IF ONE
OF THE MASTERS HAPPENS TO BE ECONOMIC SELF-INTEREST."  UNITED STATES V.
MISSISSIPPI VALLEY CO., 364 U.S. 520, 549.  (FN50)  ACCORDINGLY, WE
HOLD THAT THE INVESTMENT ADVISERS ACT OF 1940 EMPOWERS THE COURTS, UPON
A SHOWING SUCH AS THAT MADE HERE, TO REQUIRE AN ADVISER TO MAKE FULL
AND FRANK DISCLOSURE OF HIS PRACTICE OF TRADING ON THE EFFECT OF HIS
RECOMMENDATIONS. 

    III. 

RESPONDENTS OFFER THREE BASIC ARGUMENTS AGAINST THIS CONCLUSION. 
THEY ARGUE FIRST THAT CONGRESS COULD HAVE MADE, BUT DID NOT MAKE,
FAILURE TO DISCLOSE MATERIAL FACTS UNLAWFUL IN THE INVESTMENT ADVISERS
ACT OF 1940, AS IT DID IN THE SECURITIES ACT OF 1933, (FN51) AND THAT
ABSENT SPECIFIC LANGUAGE, IT SHOULD NOT BE ASSUMED THAT CONGRESS
INTENDED TO INCLUDE FAILURE TO DISCLOSE IN ITS GENERAL PROSCRIPTION OF
ANY PRACTICE WHICH OPERATES AS A FRAUD OR DECEIT.  BUT CONSIDERING THE
HISTORY AND CHRONOLOGY OF THE STATUTES, THIS OMISSION DOES NOT SEEM
SIGNIFICANT.  THE SECURITIES ACT OF 1933 WAS THE FIRST EXPERIMENT IN
FEDERAL REGULATION OF THE SECURITIES INDUSTRY.  IT WAS UNDERSTANDABLE,
THEREFORE, FOR CONGRESS, IN DECLARING CERTAIN PRACTICES UNLAWFUL, TO
INCLUDE BOTH A GENERAL PROSCRIPTION AGAINST FRAUDULENT AND DECEPTIVE
PRACTICES AND, OUT OF AN ABUNDANCE OF CAUTION, A SPECIFIC PROSCRIPTION
AGAINST NONDISCLOSURE.  IT SOON BECAME CLEAR, HOWEVER, THAT THE COURTS,
AWARE OF THE PREVIOUSLY OUTLINED DEVELOPMENTS IN THE COMMON LAW OF
FRAUD, WERE MERGING THE PROSCRIPTION AGAINST NONDISCLOSURE INTO THE
GENERAL PROSCRIPTION AGAINST FRAUD, TREATING THE FORMER, IN EFFECT, AS
ONE VARIETY OF THE LATTER.  FOR EXAMPLE, IN SECURITIES & EXCHANGE
COMM'N V. TORR, 15 F. SUPP. 315 (D.C.S.D.N.Y. 1936), REV'D ON OTHER
GROUNDS, 87 F.2D 446, JUDGE PATTERSON HELD THAT SUPPRESSION OF
INFORMATION MATERIAL TO AN EVALUATION OF THE DISINTERESTEDNESS OF
INVESTMENT ADVICE "OPERATED AS A DECEIT ON PURCHASERS," 15 F. SUPP., AT
317.  LATER CASES ALSO TREATED NONDISCLOSURE AS ONE VARIETY OF FRAUD OR
DECEIT.  (FN52)  IN LIGHT OF THIS, AND IN LIGHT OF THE EVIDENT PURPOSE
OF THE INVESTMENT ADVISERS ACT OF 1940 TO SUBSTITUTE A PHILOSOPHY OF
DISCLOSURE FOR THE PHILOSOPHY OF CAVEAT EMPTOR, WE CANNOT ASSUME THAT
THE OMISSION IN THE 1940 ACT OF A SPECIFIC PROSCRIPTION AGAINST
NONDISCLOSURE WAS INTENDED TO LIMIT THE APPLICATION OF THE ANTIFRAUD
AND ANTIDECEIT PROVISIONS OF THE ACT SO AS TO RENDER THE COMMISSION
IMPOTENT TO EMJOIN SUPPRESSION OF MATERIAL FACTS.  THE MORE REASONABLE
ASSUMPTION, CONSIDERING WHAT HAD TRANSPIRED BETWEEN 1933 AND 1940, IS
THAT CONGRESS, IN ENACTING THE INVESTMENT ADVISERS ACT OF 1940 AND
PROSCRIBING ANY PRACTICE WHICH OPERATES "AS A FRAUD OR DECEIT," DEEMED
A SPECIFIC PROSCRIPTION AGAINST NONDISCLOSURE SURPLUSAGE. 

RESPONDENTS ALSO ARGUE THAT THE 1960 AMENDMENT (FN53) TO THE
INVESTMENT ADVISERS ACT OF 1940 JUSTIFIES A NARROW INTERPRETATION OF
THE ORIGINAL ENACTMENT.  THE AMENDMENT MADE TWO SIGNIFICANT CHANGES
WHICH ARE RELEVANT HERE.  "MANIPULATIVE" PRACTICES WERE ADDED TO THE
LIST OF THOSE SPECIFICALLY PROSCRIBED.  THERE IS NOTHING TO SUGGEST,
HOWEVER, THAT WITH RESPECT TO A REQUIREMENT OF DISCLOSURE,
"MANIPULATIVE" IS ANY BROADER THAN FRAUDULENT OR DECEPTIVE.  (FN54)
NOR IS THERE ANY INDICATION THAT BY ADDING THE NEW PROSCRIPTION
CONGRESS INTENDED TO NARROW THE SCOPE OF THE ORIGINAL PROSCRIPTION. 
THE NEW AMENDMENT ALSO AUTHORIZES THE COMMISSION "BY RULES AND
REGULATIONS TO DEFINE, AND PRESCRIBE MEANS REASONABLY DESIGNED TO
PREVENT, SUCH ACTS, PRACTICES, AND COURSES OF BUSINESS AS ARE
FRAUDULENT, DECEPTIVE, OR MANIPULATIVE."  THE LEGISLATIVE HISTORY
OFFERS NO INDICATION, HOWEVER, THAT CONGRESS INTENDED SUCH RULES TO
SUBSTITUTE FOR THE "GENERAL AND FLEXIBLE" ANTIFRAUD PROVISIONS WHICH
HAVE LONG BEEN CONSIDERED NECESSARY TO CONTROL "THE VERSATILE
INVENTIONS OF FRAUD-DOERS."  (FN55)  MOREOVER, THE INTENT OF CONGRESS
MUST BE CULLED FROM THE EVENTS SURROUNDING THE PASSAGE OF THE 1940
LEGISLATION.  "OPINIONS ATTRIBUTED TO A CONGRESS TWENTY YEARS AFTER THE
EVENT CANNOT BE CONSIDERED EVIDENCE OF THE INTENT OF CONGRESS OF
1940."  SECURITIES & EXCHANGE COMM'N V. CAPITAL GAINS RESEARCH BUREAU,
INC., 306 F.2D 606, 615 (DISSENTING OPINION).  SEE UNITED STATES V.
PHILADELPHIA NAT. BANK, 374 U.S. 321, 348-349. 

RESPONDENTS ARGUE, FINALLY, THAT THEIR ADVICE WAS "HONEST" IN THE
SENSE THAT THEY BELIEVED IT WAS SOUND AND DID NOT OFFER IT FOR THE
PURPOSE OF FURTHERING PERSONAL PECUNIARY OBJECTIVES.  THIS, OF COURSE,
IS BUT ANOTHER WAY OF PUTTING THE REJECTED ARGUMENT THAT THE ELEMENTS
OF TECHNICAL COMMON-LAW FRAUD - PARTICULARLY INTENT - MUST BE
ESTABLISHED BEFORE AN INJUNCTION REQUIRING DISCLOSURE MAY BE ORDERED. 
IT IS THE PRACTICE ITSELF, HOWEVER, WITH ITS POTENTIAL FOR ABUSE, WHICH
"OPERATES AS A FRAUD OR DECEIT" WITHIN THE MEANING OF THE ACT WHEN
RELEVANT INFORMATION IS SUPPRESSED.  THE INVESTMENT ADVISERS ACT OF
1940 WAS "DIRECTED NOT ONLY AT DISHONOR, BUT ALSO AT CONDUCT THAT
TEMPTS DISHONOR."  UNITED STATES V. MISSISSIPPI VALLEY CO., 364 U.S.
520, 549.  FAILURE TO DISCLOSE MATERIAL FACTS MUST BE DEEMED FRAUD OR
DECEIT WITHIN ITS INTENDED MEANING, FOR, AS THE EXPERIENCE OF THE
1920'S AND 1930'S AMPLY REVEALS, THE DARKNESS AND IGNORANCE OF
COMMERCIAL SECRECY ARE THE CONDITIONS UPON WHICH PREDATORY PRACTICES
BEST THRIVE.  TO IMPOSE UPON THE SECURITIES AND EXCHANGE COMMISSION THE
BURDEN OF SHOWING DELIBERATE DISHONESTY AS A CONDITION PRECEDENT TO
PROTECTING INVESTORS THROUGH THE PROPHYLAXIS OF DISCLOSURE WOULD
EFFECTIVELY NULLIFY THE PROTECTIVE PURPOSES OF THE STATUTE.  READING
THE ACT IN LIGHT OF ITS BACKGROUND WE FIND NO SUCH REQUIREMENT
COMMANDED.  NEITHER THE COMMISSION NOR THE COURTS SHOULD BE REQUIRED
"TO SEPARATE THE MENTAL URGES," PETERSON V. GREENVILLE, 373 U.S. 244,
248, OF AN INVESTMENT ADVISER, FOR "THE MOTIVES OF MAN ARE TOO COMPLEX
...  TO SEPARATE  ...  ."  MOSSER V. DARROW, 341 U.S. 267, 271.  THE
STATUTE, IN RECOGNITION OF THE ADVISER'S FIDUCIARY RELATIONSHIP TO HIS
CLIENTS, REQUIRES THAT HIS ADVICE BE DISINTERESTED.  TO INSURE THIS IT
EMPOWERS THE COURTS TO REQUIRE DISCLOSURE OF MATERIAL FACTS.  IT
MISCONCEIVES THE PURPOSE OF THE STATUTE TO CONFINE ITS APPLICATION TO
"DISHONEST" AS OPPOSED TO "HONEST" MOTIVES.  AS DEAN SHULMAN SAID IN
DISCUSSING THE NATURE OF SECURITIES TRANSACTIONS, WHAT IS REQUIRED IS
"A PICTURE NOT SIMPLY OF THE SHOW WINDOW, BUT OF THE ENTIRE STORE  ...
NOT SIMPLY TRUTH IN THE STATEMENTS VOLUNTEERED, BUT DISCLOSURE." 
(FN56)  THE HIGH STANDARDS OF BUSINESS MORALITY EXACTED BY OUR LAWS
REGULATING THE SECURITIES INDUSTRY DO NOT PERMIT AN INVESTMENT ADVISER
TO TRADE ON THE MARKET EFFECT OF HIS OWN RECOMMENDATIONS WITHOUT FULLY
AND FAIRLY REVEALING HIS PERSONAL INTERESTS IN THESE RECOMMENDATIONS TO
HIS CLIENTS. 

EXPERIENCE HAS SHOWN THAT DISCLOSURE IN SUCH SITUATIONS, WHILE NOT
ONEROUS TO THE ADVISER, IS NEEDED TO PRESERVE THE CLIMATE OF FAIR
DEALING WHICH IS SO ESSENTIAL TO MAINTAIN PUBLIC CONFIDENCE IN THE
SECURITIES INDUSTRY AND TO PRESERVE THE ECONOMIC HEALTH OF THE
COUNTRY. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  54 STAT. 847, AS AMENDED, 15 U.S.C. SEC. 80B-1 ET SEQ. 

FN2  54 STAT. 852, AS AMENDED, 15 U.S.C. (SUPP. IV) SEC. 80B-6,
PROVIDES IN RELEVANT PART THAT: 

"IT SHALL BE UNLAWFUL FOR ANY INVESTMENT ADVISER, BY USE OF THE MAILS
OR ANY MEANS OR INSTRUMENTALITY OF INTERSTATE COMMERCE, DIRECTLY OR
INDIRECTLY: 

"(1)  TO EMPLOY ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD ANY CLIENT
OR PROSPECTIVE CLIENT:    "(2)  TO ENGAGE IN ANY TRANSACTION, PRACTICE,
OR COURSE OF BUSINESS WHICH OPERATES AS A FRAUD OR DECEIT UPON ANY
CLIENT OR PROSPECTIVE CLIENT: 

"(3)  ACTING AS PRINCIPAL FOR HIS OWN ACCOUNT, KNOWINGLY TO SELL ANY
SECURITY TO OR PURCHASE ANY SECURITY FROM A CLIENT, OR ACTING AS BROKER
FOR A PERSON OTHER THAN SUCH CLIENT, KNOWINGLY TO EFFECT ANY SALE OR
PURCHASE OF ANY SECURITY FOR THE ACCOUNT OF SUCH CLIENT, WITHOUT
DISCLOSING TO SUCH CLIENT IN WRITING BEFORE THE COMPLETION OF SUCH
TRANSACTION THE CAPACITY IN WHICH HE IS ACTING AND OBTAINING THE
CONSENT OF THE CLIENT TO SUCH TRANSACTION.  THE PROHIBITIONS OF THIS
PARAGRAPH SHALL NOT APPLY TO ANY TRANSACTION WITH A CUSTOMER OF A
BROKER OR DEALER IF SUCH BROKER OR DEALER IS NOT ACTING AS AN
INVESTMENT ADVISER IN RELATION TO SUCH TRANSACTION  ...  ." 

FN3  54 STAT. 853, AS AMENDED, 15 U.S.C. (SUPP. IV) SEC. 80B-9,
PROVIDES IN RELEVANT PART THAT: 

"(E)  WHENEVER IT SHALL APPEAR TO THE COMMISSION THAT ANY PERSON HAS
ENGAGED, IS ENGAGED, OR IS ABOUT TO ENGAGE IN ANY ACT OR PRACTICE
CONSTITUTING A VIOLATION OF ANY PROVISION OF THIS SUBCHAPTER, OR OF ANY
RULE, REGULATION, OR ORDER HEREUNDER, OR THAT ANY PERSON HAS AIDED,
ABETTED, COUNSELED, COMMANDED, INDUCED, OR PROCURED, IS AIDING,
ABETTING, COUNSELING, COMMANDING, INDUCING, OR PROCURING, OR IS ABOUT
TO AID, ABET, COUNSEL, COMMAND, INDUCE, OR PROCURE SUCH A VIOLATION, IT
MAY IN ITS DISCRETION BRING AN ACTION IN THE PROPER DISTRICT COURT OF
THE UNITED STATES, OR THE PROPER UNITED STATES COURT OF ANY TERRITORY
OR OTHER PLACE SUBJECT TO THE JURISDICTION OF THE UNITED STATES, TO
ENJOIN SUCH ACTS OR PRACTICES AND TO ENFORCE COMPLIANCE WITH THIS
SUBCHAPTER OR ANY RULE, REGULATION, OR ORDER HEREUNDER.  UPON A SHOWING
THAT SUCH PERSON HAS ENGAGED, IS ENGAGED, OR IS ABOUT TO ENGAGE IN ANY
SUCH ACT OR PRACTICE, OR IN AIDING, ABETTING, COUNSELING, COMMANDING,
INDUCING, OR PROCURING ANY SUCH ACT OR PRACTICE, A PERMANENT OR
TEMPORARY INJUNCTION OR DECREE OR RESTRAINING ORDER SHALL BE GRANTED
WITHOUT BOND." 

FN4  SEE APPENDIX, INFRA, P. 202. 

FN5  THE REQUESTED INJUNCTION READS IN FULL AS FOLLOWS: 

"WHEREFORE THE PLAINTIFF DEMANDS A TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION AND FINAL INJUNCTION: 

"1.  ENJOINING THE DEFENDANTS CAPITAL GAINS RESEARCH BUREAU, INC. AND
HARRY P. SCHWARZMANN, THEIR AGENTS, SERVANTS, EMPLOYEES, ATTORNEYS AND
ASSIGNS, AND EACH OF THEM, WHILE THE SAID CAPITAL GAINS RESEARCH
BUREAU, INC. IS AN INVESTMENT ADVISER, DIRECTLY AND INDIRECTLY, BY THE
USE OF THE MAILS OR ANY MEANS OR INSTRUMENTALITIES OF INTERSTATE
COMMERCE FROM: 

"(A)  EMPLOYING ANY DEVICE, SCHEME OR ARTIFICE TO DEFRAUD ANY CLIENT
OR PROSPECTIVE CLIENT BY FAILING TO DISCLOSE THE MATERIAL FACTS
CONCERNING: 

"(1)  THE PURCHASE BY DEFENDANT, CAPITAL GAINS RESEARCH BUREAU, INC.,
OF SECURITIES WITHIN A VERY SHORT PERIOD PRIOR TO THE DISTRIBUTION OF A
RECOMMENDATION BY SAID DEFENDANT TO ITS CLIENTS AND PROSPECTIVE CLIENTS
FOR PURCHASE OF SAID SECURITIES: 

"(2)  THE INTENT TO SELL AND THE SALE OF SAID SECURITIES BY SAID
DEFENDANT SO RECOMMENDED TO BE PURCHASED WITHIN A VERY SHORT PERIOD
AFTER DISTRIBUTION OF SAID RECOMMENDATION TO ITS CLIENTS AND
PROSPECTIVE CLIENTS: 

"(3)  EFFECTING OF SHORT SALES BY SAID DEFENDANT WITHIN A VERY SHORT
PERIOD PRIOR TO THE DISTRIBUTION OF A RECOMMENDATION BY SAID DEFENDANT
TO ITS CLIENTS AND PROSPECTIVE CLIENTS TO DISPOSE OF SAID SECURITIES: 

"(4)  THE INTENT OF SAID DEFENDANT TO PURCHASE AND THE PURCHASE OF
SAID SECURITIES TO COVER ITS SHORT SALES: 

"(5)  THE PURCHASE BY SAID DEFENDANT FOR ITS OWN ACCOUNT OF PUTS AND
CALLS FOR SECURITIES WITHIN A VERY SHORT PERIOD PRIOR TO THE
DISTRIBUTION OF A RECOMMENDATION TO ITS CLIENTS AND PROSPECTIVE CLIENTS
FOR PURCHASE OR DISPOSITION OF SAID SECURITIES. 

"(B)  ENGAGING IN ANY TRANSACTION, PRACTICE AND COURSE OF BUSINESS
WHICH OPERATES AS A FRAUD OR DECEIT UPON ANY CLIENT OR PROSPECTIVE
CLIENT BY FAILING TO DISCLOSE THE MATERIAL FACTS CONCERNING THE MATTERS
SET FORTH IN DEMAND 1(A) HEREOF." 

FN6  THE CASE WAS ORIGINALLY HEARD BEFORE A PANEL OF THE COURT OF
APPEALS, WHICH, WITH ONE JUDGE DISSENTING, AFFIRMED THE DISTRICT
COURT.  300 F.2D 745.  REHEARING EN BANC WAS THEN ORDERED. 

THE COURT OF APPEALS PURPORTED TO RECOGNIZE THAT "FEDERAL SECURITIES
LAWS ARE TO BE CONSTRUED BROADLY TO EFFECTUATE THEIR REMEDIAL
PURPOSE."  306 F.2D 606, 608.  BUT BY AFFIRMING THE DISTRICT COURT'S
"TECHNICAL" CONSTRUCTION OF THE INVESTMENT ADVISERS ACT OF 1940 AND BY
REQUIRING PROOF OF "MISSTATEMENTS," UNSOUND ADVICE, BRIBERY, OR INTENT
TO UNLOAD "WORTHLESS STOCK," THE COURT READ THE STATUTE, IN EFFECT, AS
CONFINED BY TRADITIONAL COMMON-LAW CONCEPTS OF FRAUD AND DECEIT. 

FN7  SEE GENERALLY DOUGLAS AND BATES, THE FEDERAL SECURITIES ACT OF
1933, 43 YALE L.J. 171 (1933); LOOMIS, THE SECURITIES EXCHANGE ACT OF
1934 AND THE INVESTMENT ADVISERS ACT OF 1940, 28 GEO. WASH. L. REV. 214
(1959); SHULMAN, CIVIL LIABILITY AND THE SECURITIES ACT, 43 YALE L.J.
227 (1933).  CF. GALBRAITH, THE GREAT CRASH (1955). 

FN8  48 STAT. 74, AS AMENDED, 15 U.S.C. SEC. 77A ET SEQ. 

FN9  48 STAT. 881, AS AMENDED, 15 U.S.C. SEC. 78A ET SEQ. 

FN10  49 STAT. 838, AS AMENDED, 15 U.S.C. SEC. 79 ET SEQ. 

FN11  53 STAT. 1149, AS AMENDED, 15 U.S.C. SEC. 77AAA ET SEQ. 

FN12  54 STAT. 789, AS AMENDED, 15 U.S.C. SEC. 80A-1 ET SEQ. 

FN13  SEE H.R. REP. NO. 85, 73D CONG., 1ST SESS. 2, QUOTED IN WILKO
V. SWAN, 346 U.S. 427, 430. 

FN14  49 STAT. 837, 15 U.S.C. SEC. 79Z-4. 

FN15  WHILE THE STUDY CONCENTRATED ON INVESTMENT ADVISORY SERVICES
WHICH PROVIDE PERSONALIZED COUNSELING TO INVESTORS, SEE INVESTMENT
TRUSTS AND INVESTMENT COMPANIES, REPORT OF THE SECURITIES AND EXCHANGE
COMMISSION, PURSUANT TO SECTION 30 OF THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, ON INVESTMENT COUNSEL, INVESTMENT MANAGEMENT,
INVESTMENT SUPERVISORY, AND INVESTMENT ADVISORY SERVICES, H.R. DOC. NO.
477, 76TH CONG., 2D SESS., 1 (HEREINAFTER CITED AS SEC REPORT) THE
SENATE COMMITTEE ON BANKING AND CURRENCY DID RECEIVE COMMUNICATIONS
FROM PUBLISHERS OF INVESTMENT ADVISORY SERVICES, SEE, E.G., HEARINGS ON
S. 3580 BEFORE SUBCOMMITTEE OF THE SENATE COMMITTEE ON BANKING AND
CURRENCY, 76TH CONG., 3D SESS., PT. 3 (EXHIBITS), 1063, AND THE ACT
SPECIFICALLY COVERS "ANY PERSON WHO, FOR COMPENSATION, ENGAGES IN THE
BUSINESS OF ADVISING OTHERS, EITHER DIRECTLY OR THROUGH PUBLICATION OR
WRITINGS  ...  ."  54 STAT. 847, 15 U.S.C. SEC. 80B-2. 

FN16  SEC REPORT, AT 28. 

FN17  ID., AT 29. 

FN18  ID., AT 24. 

FN19  IBID. 

FN20  IBID. 

FN21  ID., AT 66-67. 

FN22  ID., AT 66. 

FN23  ID., AT 65. 

FN24  ID., AT 67. 

FN25  ID., AT 29. 

FN26  ID., AT 66. 

FN27  ID., AT 29-30. 

FN28  SEE TEXT ACCOMPANYING NOTE 14, SUPRA. 

FN29  S. 3580, 76TH CONG., 3D SESS. 

FN30  HEARINGS ON S. 3580 BEFORE SUBCOMMITTEE OF THE SENATE COMMITTEE
ON BANKING AND CURRENCY, 76TH CONG., 3D SESS. (HEREINAFTER CITED AS
SENATE HEARINGS).  HEARINGS ON H.R. 10065 BEFORE SUBCOMMITTEE OF THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 76TH CONG., 3D
SESS. (HEREINAFTER CITED AS HOUSE HEARINGS). 

FN31  SENATE HEARINGS, AT 719. 

FN32  ID., AT 716. 

FN33  ID., AT 724. 

FN34  THE BILL AS ENACTED DID NOT CONTAIN A SECTION ATTRIBUTING
SPECIFIC ABUSES TO THE INVESTMENT ADVISER PROFESSION.  THIS SECTION WAS
ELIMINATED APPARENTLY AT THE URGING OF THE INVESTMENT ADVISERS WHO,
WHILE NOT DENYING THAT ABUSES HAD OCCURRED, ATTRIBUTED THEM TO CERTAIN
FRINGE ELEMENTS IN THE PROFESSION.  THEY FEARED THAT A PUBLIC AND
GENERAL INDICTMENT OF ALL INVESTMENT ADVISERS BY CONGRESS WOULD DO
IRREPARABLE HARM TO THEIR FLEDGLING PROFESSION.  SEE, E.G., SENATE
HEARINGS, AT 715-716.  IT CANNOT BE INFERRED, THEREFORE, THAT THE
HAD NOT OCCURRED, OR BECAUSE CONGRESS DID NOT DESIRE TO PREVENT THEIR
REPETITION IN THE FUTURE.  THE MORE LOGICAL INFERENCE, CONSIDERING THE
LEGISLATIVE BACKGROUND OF THE ACT, IS THAT THE SECTION WAS OMITTED TO
AVOID CONDEMNING AN ENTIRE PROFESSION (WHICH DEPENDS FOR ITS SUCCESS ON
CONTINUED PUBLIC CONFIDENCE) FOR THE ACTS OF A FEW. 

FN35  H.R. REP. NO. 2639, 76TH CONG., 3D SESS. 28 (HEREINAFTER CITED
AS HOUSE REPORT).  SEE ALSO S. REP. NO. 1775, 76TH CONG., 3D SESS. 22
(HEREINAFTER CITED AS SENATE REPORT). 

FN36  SEE SENATE REPORT, AT 22. 

FN37  ID., AT 21. 

FN38  2 LOSS, SECURITIES REGULATION (2D ED. 1961), 1412. 

FN39  SEE CASES CITED IN 37 C.J.S., FRAUD (1943), 210. 

EVEN IN A DAMAGE SUIT BETWEEN PARTIES TO AN ARM'S-LENGTH TRANSACTION,
THE INTENT WHICH MUST BE ESTABLISHED NEED NOT BE AN INTENT TO CAUSE
INJURY TO THE CLIENT, AS THE COURTS BELOW SEEM TO HAVE ASSUMED.  "IT IS
TO BE NOTED THAT IT IS NOT NECESSARY THAT THE PERSON MAKING THE
MISREPRESENTATIONS INTEND TO CAUSE LOSS TO THE OTHER OR GAIN A PROFIT
FOR HIMSELF; IT IS ONLY NECESSARY THAT HE INTEND ACTION IN RELIANCE ON
THE TRUTH OF HIS MISREPRESENTATIONS."  1 HARPER AND JAMES, THE LAW OF
TORTS (1956), 531.  "THE FACT THAT THE DEFENDANT WAS DISINTERESTED,
THAT HE HAD THE BEST OF MOTIVES, AND THAT HE THOUGHT HE WAS DOING THE
PLAINTIFF A KINDNESS, WILL NOT ABSOLVE HIM FROM LIABILITY SO LONG AS HE
DID IN FACT INTEND TO MISLEAD."  PROSSER, LAW OF TORTS (1955), 538. 
SEE 3 RESTATEMENT, TORTS (1938), SEC. 531, COMMENT B, ILLUSTRATION 3. 
IT IS CLEAR THAT RESPONDENTS' FAILURE TO DISCLOSE THE PRACTICE HERE IN
ISSUE WAS PURPOSEFUL, AND THAT THEY INTENDED THAT ACTION BE TAKEN IN
RELIANCE ON THE CLAIMED DISINTERESTEDNESS OF THE SERVICE AND ITS
EXCLUSIVE CONCERN FOR THE CLIENTS' INTERESTS. 

FN40  NEITHER IS THIS A CRIMINAL PROCEEDING FOR "WILLFULLY" VIOLATING
THE ACT, 54 STAT. 857, AS AMENDED, 15 U.S.C. SEC 80B-17, NOR A
PROCEEDING TO REVOKE OR SUSPEND A REGISTRATION "IN THE PUBLIC
INTEREST," 54 STAT. 850, AS AMENDED, 15 U.S.C. SEC. 80B-3.  OTHER
CONSIDERATIONS MAY BE RELEVANT IN SUCH PROCEEDINGS.  COMPARE FEDERAL
COMMUNICATIONS COMM'N V. AMERICAN BROADCASTING CO., 347 U.S. 284. 

FN41  HANBURY, MODERN EQUITY (8TH ED. 1962), 643.  SEE LETTER OF LORD
HARDWICKE TO LORD KAMES, DATED JUNE 30, 1759, PRINTED IN PARKES,
HISTORY OF THE COURT OF CHANCERY (1828), 508, QUOTED IN SNELL,
PRINCIPLES OF EQUITY (25TH ED. 1960), 496: 

"FRAUD IS INFINITE, AND WERE A COURT OF EQUITY ONCE TO LAY DOWN
RULES, HOW FAR THEY WOULD GO, AND NO FARTHER, IN EXTENDING THEIR RELIEF
AGAINST IT, OR TO DEFINE STRICTLY THE SPECIES OR EVIDENCE OF IT, THE
JURISDICTION WOULD BE CRAMPED, AND PERPETUALLY ELUDED BY NEW SCHEMES
WHICH THE FERTILITY OF MAN'S INVENTION WOULD CONTRIVE." 

FN42  DE FUNIAK, HANDBOOK OF MODERN EQUITY (2D ED. 1956), 235. 

FN43  MOORE V. CRAWFORD, 130 U.S. 122, 128, QUOTING 1 STORY, EQUITY
JUR.  SEC.  187. 

FN44  PROSSER, LAW OF TORTS (1955), 534-535 (CITING CASES).  SEE
GENERALLY KEETON, FRAUD - CONCEALMENT AND NON-DISCLOSURE, 15 TEXAS L.
REV. 1. 

FN45  1 HARPER AND JAMES, THE LAW OF TORTS (1956), 541. 

FN46  SEE GENERALLY SHULMAN, CIVIL LIABILITY AND THE SECURITIES ACT,
43 YALE L.J. 227 (1933). 

FN47  3 SUTHERLAND, STATUTORY CONSTRUCTION (3D ED. 1943), 382 ET SEQ.
(CITING CASES).  SEE NOTE, 38 N.Y.U.L. REV. 985; COMMENT, 30 U. OF
CHI.  L. REV. 121, 131-147. 

FN48  SEE TEXT ACCOMPANYING NOTE 27, SUPRA. 

FN49  FOR A DISCUSSION OF THE EFFECTS OF INVESTMENT ADVISORY SERVICE
RECOMMENDATIONS ON THE MARKET PRICE OF SECURITIES, SEE NOTE, 51 CALIF.
L. REV. 232, 233. 

FN50  THIS COURT, IN DISCUSSING CONFLICTS OF INTEREST, HAS SAID: 

"THE REASON OF THE RULE INHIBITING A PARTY WHO OCCUPIES CONFIDENTIAL
AND FIDUCIARY RELATIONS TOWARD ANOTHER FROM ASSUMING ANTAGONISTIC
POSITIONS TO HIS PRINCIPAL IN MATTERS INVOLVING THE SUBJECT MATTER OF
THE TRUST IS SOMETIMES SAID TO REST IN A SOUND PUBLIC POLICY, BUT IT
ALSO IS JUSTIFIED IN A RECOGNITION OF THE AUTHORITATIVE DECLARATION
THAT NO MAN CAN SERVE TWO MASTERS; AND CONSIDERING THAT HUMAN NATURE
MUST BE DEALT WITH, THE RULE DOES NOT STOP WITH ACTUAL VIOLATIONS OF
SUCH TRUST RELATIONS, BUT INCLUDES WITHIN ITS PURPOSE THE REMOVAL OF
ANY TEMPTATION TO VIOLATE THEM ...  . 

"  ...  IN HAZELTON V. SHECKELLS, 202 U.S. 71, 79, WE SAID:  'THE
OBJECTION  ...  RESTS IN THEIR TENDENCY, NOT IN WHAT WAS DONE IN THE
PARTICULAR CASE  ...  .  THE COURT WILL NOT INQUIRE WHAT WAS DONE.  IF
THAT SHOULD BE IMPROPER IT PROBABLY WOULD BE HIDDEN AND WOULD NOT
APPEAR.'"  UNITED STATES V. MISSISSIPPI VALLEY CO., 364 U.S. 520, 550,
N. 14. 

FN51  48 STAT. 84, AS AMENDED, 15 U.S.C. SEC 77QA), PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON IN THE OFFER OR SALE OF ANY
SECURITIES BY THE USE OF ANY MEANS OR INSTRUMENTS OF TRANSPORTATION OR
COMMUNICATION IN INTERSTATE COMMERCE OR BY THE USE OF THE MAILS,
DIRECTLY OR INDIRECTLY: 

"(1)  TO EMPLOY ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD, OR: 

"(2)  TO OBTAIN MONEY OR PROPERTY BY MEANS OF ANY UNTRUE STATEMENT OF
A MATERIAL FACT OR ANY OMISSION TO STATE A MATERIAL FACT NECESSARY IN
ORDER TO MAKE THE STATEMENTS MADE, IN THE LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY WERE MADE, NOT MISLEADING, OR: 

"(3)  TO ENGAGE IN ANY TRANSACTION, PRACTICE, OR COURSE OF BUSINESS
WHICH OPERATES OR WOULD OPERATE AS A FRAUD OR DECEIT UPON THE
PURCHASER." 

FN52  SEE ARCHER V. SECURITIES & EXCHANGE COMM'N, 133 F.2D 795 (C.A.
8TH CIR.), CERT. DENIED, 319 U.S. 767; CHARLES HUGHES & CO. V.
SECURITIES & EXCHANGE COMM'N, 139 F.2D 434 (C.A.2D CIR.), CERT. DENIED,
321 U.S. 786; HUGHES V. SECURITIES & EXCHANGE COMM'N 85 U.S. APP.  D.C.
56, 174 F.2D 969; NORRIS & HIRSHBERG V. SECURITIES & EXCHANGE COMM'N,
85 U.S. APP.  D.C. 268, 177 F.2D 228; SPEED V. TRANSAMERICA CORP., 235
F.2D 369 (C.A. 3D CIR.). 

FN53  74 STAT. 887, 15 U.S.C. (SUPP. IV) SEC. 80B-6(4). 

THE AMENDMENT, AS IT IS RELEVANT HERE, MADE IT UNLAWFUL FOR AN
INVESTMENT ADVISER:    "(4) TO ENGAGE IN ANY ACT, PRACTICE, OR COURSE
OF BUSINESS WHICH IS FRAUDULENT, DECEPTIVE, OR MANIPULATIVE.  THE
COMMISSION SHALL, FOR THE PURPOSES OF THIS PARAGRAPH (4) BY RULES AND
REGULATIONS DEFINE, AND PRESCRIBE MEANS REASONABLY DESIGNED TO PREVENT,
SUCH ACTS, PRACTICES, AND COURSES OF BUSINESS AS ARE FRAUDULENT,
DECEPTIVE, OR MANIPULATIVE." 

FN54  SEE, E.G., 48 STAT. 895, AS AMENDED, 15 U.S.C. SEC. 78OC)(1),
WHICH REFERS TO SUCH DEVICES "AS ARE MANIPULATIVE, DECEPTIVE, OR
OTHERWISE FRAUDULENT." 

FN55  STONEMETS V. HEAD, 248 MO. 243, 263, 154 S.W. 108, 114.  SEE
ALSO NOTE 41, SUPRA. 

FN56  SHULMAN, CIVIL LIABILITY AND THE SECURITIES ACT, 43 YALE L.J.
227, 242.                       APPENDIX TO OPINION OF THE COURT. 

ON ONE OCCASION RESPONDENTS SOLD SHORT SOME SHARES OF A SECURITY
IMMEDIATELY BEFORE STATING IN THEIR REPORT THAT THE SECURITY WAS
OVERPRICED.  AFTER THE PUBLICATION OF THE REPORT, RESPONDENTS COVERED
THEIR SHORT SALES. 

RESPONDENTS' TRANSACTIONS ARE SUMMARIZED BY THE COMMISSION AS
FOLLOWS:  (TABLE OMITTED.) 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT BELOW SUBSTANTIALLY FOR THE REASONS GIVEN
BY JUDGE MOORE IN HIS OPINION FOR THE MAJORITY OF THE COURT OF APPEALS
SITTING EN BANC, 306 F.2D 606, AND IN HIS EARLIER OPINION FOR THE
PANEL.  300 F.2D 745.  A FEW ADDITIONAL OBSERVATIONS ARE IN ORDER. 

CONTRARY TO THE MAJORITY, I DO NOT READ THE COURT OF APPEALS' EN BANC
OPINION AS HOLDING THAT EITHER SEC. 206(1) OF THE INVESTMENT ADVISERS
ACT OF 1940, 54 STAT. 847 (PROHIBITING THE EMPLOYMENT OF "ANY DEVICE,
SCHEME, OR ARTIFICE TO DEFRAUD ANY CLIENT OR PROSPECTIVE CLIENT"), OR
SEC. 206(2), 54 STAT. 847 (PROHIBITING THE ENGAGING "IN ANY
TRANSACTION, PRACTICE, OR COURSE OF BUSINESS WHICH OPERATES AS A FRAUD
OR DECEIT UPON ANY CLIENT OR PROSPECTIVE CLIENT"), IS CONFINED BY
TRADITIONAL COMMON LAW CONCEPTS OF FRAUD AND DECEIT.  THAT COURT
RECOGNIZED THAT "FEDERAL SECURITIES LAWS ARE TO BE CONSTRUED BROADLY TO
EFFECTUATE THEIR REMEDIAL PURPOSE."  306 F.2D, AT 608.  IT DID NOT HOLD
OR INTIMATE THAT PROOF OF "INTENT TO INJURE AND ACTUAL INJURY TO
CLIENTS" (ANTE, P. 186) WAS NECESSARY TO MAKE OUT A CASE UNDER THESE
THERE BE ANY SERIOUS DISPUTE THAT A RELATIONSHIP OF TRUST AND
CONFIDENCE SHOULD EXIST BETWEEN THE ADVISOR AND THE ADVISED," IBID.,
THUS RECOGNIZING THAT NO SUCH PROOF WAS REQUIRED.  IN EFFECT THE COURT
OF APPEALS SIMPLY HELD THAT THE TERMS OF THE STATUTE REQUIRE, AT LEAST,
SOME PROOF THAT AN INVESTMENT ADVISER'S RECOMMENDATIONS ARE NOT
DISINTERESTED. 

I THINK IT CLEAR THAT WHAT WAS SHOWN HERE WOULD NOT MAKE OUT A CASE
OF FRAUD OR BREACH OF FIDUCIARY RELATIONSHIP UNDER THE MOST EXPANSIVE
CONCEPTS OF COMMON LAW OR EQUITABLE PRINCIPLES.  THE NONDISCLOSED FACTS
INDICATE NO MORE THAN THAT THE RESPONDENTS PERSONALLY PROFITED FROM THE
FORESEEABLE REACTION TO SOUND AND IMPARTIAL INVESTMENT ADVICE.  (FN1) 

THE CASES CITED BY THE COURT (ANTE, P. 198) ARE WIDE OF THE MARK AS
EVEN A SKELETONIZED STATEMENT OF THEM WILL SHOW.  IN SECURITIES &
EXCHANGE COMM'N V. TORR, 15 F. SUPP. 315, REVERSED ON OTHER GROUNDS, 87
F.2D 446, DEFENDANTS WERE IN EFFECT BRIBED TO RECOMMEND A CERTAIN
STOCK.  ALTHOUGH IT WAS NOT APPARENT THAT THEY LIED IN MAKING THEIR
RECOMMENDATIONS, IT WAS PLAIN THAT THEY WERE MOTIVATED TO MAKE THEM BY
THE PROMISE OF REWARD.  IN THE CASE BEFORE US, THERE IS NO VESTIGE OF
PROOF THAT THE REASON FOR THE RECOMMENDATIONS WAS ANYTHING OTHER THAN A
BELIEF IN THE SOUNDNESS OF THE INVESTMENT ADVICE GIVEN. 

CHARLES HUGHES & CO. V. SECURITIES & EXCHANGE COMM'N 139 F.2D 434,
INVOLVED SALES OF STOCK BY CUSTOMERS' MEN TO THOSE IGNORANT OF THE
MARKET VALUE OF THE STOCKS AT 16% TO 41% ABOVE THE OVER-THE-COUNTER
PRICE.  DEFENDANT'S EMPLOYEES MUST HAVE KNOWN THAT THE CUSTOMERS WOULD
HAVE REFUSED TO BUY HAD THEY BEEN AWARE OF THE ACTUAL MARKET PRICE. 

THE DEFENDANT IN NORRIS & HIRSHBERG, INC., V. SECURITIES & EXCHANGE
COMM'N, 85 U.S. APP.  D.C. 268, 177 F.2D 228, DEALT IN UNLISTED
SECURITIES.  MOST OF ITS CUSTOMERS BELIEVED THAT THE FIRM WAS ACTING
ONLY ON THEIR BEHALF AND THAT ITS INCOME WAS DERIVED FROM COMMISSIONS;
IN FACT THE FIRM BOUGHT FROM AND SOLD TO ITS CUSTOMERS, AND RECEIVED
ITS INCOME FROM MARK-UPS AND MARK-DOWNS.  THE NONDISCLOSURE OF THIS
BASIC RELATIONSHIP DID NOT, THE COURT STATED, "NECESSARILY ESTABLISH
THAT PETITIONER VIOLATED THE ANTIFRAUD PROVISIONS OF THE SECURITIES AND
SECURITIES EXCHANGE ACTS."  ID., AT 271, 177 F.2D, AT 231.  DEFENDANT'S
TRADING PRACTICES, HOWEVER, WERE FOUND TO ESTABLISH SUCH A VIOLATION;
AN EXAMPLE OF THESE WAS THE BUYING OF SHARES OF STOCK FROM ONE CUSTOMER
AND THE SELLING TO ANOTHER AT A SUBSTANTIALLY HIGHER PRICE ON THE SAME
DAY.  THE OPINION EXPLICITLY DISTINGUISHES BETWEEN WHAT IS NECESSARY TO
PROVE COMMON LAW FRAUD AND THE GROUNDS UNDER SECURITIES LEGISLATION
SUFFICIENT FOR REVOCATION OF A BROKER-DEALER REGISTRATION.  ID., 273,
177 F.2D, AT 233. 

ARLEEN HUGHES V. SECURITIES & EXCHANGE COMM'N, 85 U.S. APP. D.C. 56,
174 F.2D 969, CONCERNED THE REVOCATION OF THE LICENSE OF A BROKER
DEALER WHO ALSO GAVE INVESTMENT ADVICE BUT FAILED TO DISCLOSE TO
CUSTOMERS BOTH THE BEST PRICE AT WHICH THE SECURITIES COULD BE BOUGHT
IN THE OPEN MARKET AND THE PRICE WHICH SHE HAD PAID FOR THEM.  SINCE
THE COURT EXPRESSLY RELIED ON LANGUAGE IN STATUTES AND REGULATIONS
MAKING UNLAWFUL "ANY OMISSION TO STATE A MATERIAL FACT," ID., AT 63,
174 F.2D, AT 976, THIS CASE HARDLY STANDS FOR THE PROPOSITION THAT THE
RESULT WOULD HAVE BEEN THE SAME HAD SUCH PROVISIONS BEEN ABSENT. 

IN SPEED V. TRANSAMERICA CORP., 235 F.2D 369, THE CONTROLLING
STOCKHOLDER OF A CORPORATION MADE A PUBLIC OFFER TO BUY STOCK,
CONCEALING FROM THE OTHER SHAREHOLDERS INFORMATION KNOWN TO IT AS AN
INSIDER WHICH INDICATED THE REAL VALUE OF THE STOCK TO BE CONSIDERABLY
GREATER THAN THE PRICE SET BY THE PUBLIC OFFER.  HAD SHAREHOLDERS BEEN
AWARE OF THE CONCEALMENT, THEY WOULD UNDOUBTEDLY HAVE REFUSED TO SELL;
AS A CONSEQUENCE OF SELLING THEY SUFFERED ASCERTAINABLE DAMAGES. 

IN ARCHER V. SECURITIES & EXCHANGE COMM'N, 133 F.2D 795, DEFENDANT
COPARTNERS OF A COMPANY DEALING IN UNLISTED SECURITIES CONCEALED THE
NAME OF CLAUDE WESTFALL, WHO WAS FOUND TO BE IN CONTROL OF THE
BUSINESS.  WESTFALL WAS THEREBY ENABLED TO DEFRAUD THE CUSTOMERS OF THE
BROKERAGE FIRM OF HARRIS, UPHAM & CO., FOR WHICH HE WORKED AS A
TRADER.  SECURITIES OF THE CUSTOMERS OF THE LATTER FIRM WERE BROUGHT BY
DEFENDANTS' COMPANY AT UNDER THE MARKET LEVEL, AND DEFENDANTS' COMPANY
SOLD SECURITIES TO THE CLIENTS OF HARRIS, UPHAM & CO. AT PRICES ABOVE
THE MARKET. 

IN ALL OF THESE CASES BUT ARLEEN HUGHES, WHICH TURNED ON EXPLICIT
PROVISIONS AGAINST NONDISCLOSURE, THE CONCEALMENT INVOLVED CLEARLY
REFLECTED DISHONEST DEALING THAT WAS VITAL TO THE CONSUMMATION OF THE
RELEVANT TRANSACTIONS.  NO SUCH FACTORS ARE REVEALED BY THE RECORD IN
THE PRESENT CASE.  IT IS APPARENT THAT THE COURT IS ABLE TO ACHIEVE THE
RESULT REACHED TODAY ONLY BY CONSTRUING THESE PROVISIONS OF THE
INVESTMENT ADVISERS ACT AS IT MIGHT A PURE CONFLICT OF INTEREST
STATUTE, CF. UNITED STATES V. MISSISSIPPI VALLEY CO., 364 U.S. 520,
SOMETHING WHICH THIS PARTICULAR LEGISLATION DOES NOT PURPORT TO BE. 

I CAN FIND NOTHING IN THE TERMS OF THE STATUTE OR IN ITS LEGISLATIVE
HISTORY WHICH LENDS SUPPORT TO THE ABSOLUTE RULE OF DISCLOSURE NOW
ESTABLISHED BY THE COURT.  APART FROM THE OTHER FACTORS DEALT WITH IN
THE TWO OPINIONS OF THE COURT OF APPEALS, IT SEEMS TO ME ESPECIALLY
SIGNIFICANT THAT CONGRESS IN ENACTING THE INVESTMENT ADVISERS ACT DID
NOT INCLUDE THE EXPRESS DISCLOSURE PROVISION FOUND IN SEC. 17(A)(2) OF
THE SECURITIES ACT OF 1933, 48 STAT. 84, (FN2) EVEN THOUGH IT DID CARRY
OVER TO THE ADVISERS ACT THE COMPARABLE FRAUD AND DECEIT PROVISIONS OF
THE SECURITIES ACT.  (FN3) TO ATTRIBUTE THE PRESENCE OF A DISCLOSURE
PROVISION IN THE EARLIER STATUTE TO AN "ABUNDANCE OF CAUTION" (ANTE, P.
198) AND ITS OMISSION IN THE LATER STATUTE TO A CONGRESSIONAL BELIEF
THAT ITS INCLUSION WOULD BE "SURPLUSAGE" (ANTE, P. 199) IS FOR ME A
SINGULARLY UNCONVINCING EXPLANATION OF THIS CONTROLLING DIFFERENCE
BETWEEN THE TWO STATUTES.  (FN4) 

HOWEVER SALUTARY MAY BE THOUGHT THE DISCLOSURE RULE NOW FASHIONED BY
COURT, I CAN FIND NO AUTHORITY FOR IT EITHER IN THE STATUTE OR IN ANY
REGULATION DULY PROMULGATED THEREUNDER BY THE S.E.C.  ONLY TWO TERMS
AGO WE REFUSED TO EXTEND CERTAIN PROVISIONS OF THE SECURITIES EXCHANGE
ACT OF 1934 TO ENCOMPASS "POLICY" CONSIDERATIONS AT LEAST AS COGENT AS
THOSE URGED HERE BY THE S.E.C.  BLAU V. LEHMAN, 368 U.S. 403.  THE
COURT SHOULD HAVE EXERCISED THE SAME WISE JUDICIAL RESTRAINT IN THIS
CASE.  THIS IS PARTICULARLY SO AT THIS INTERLOCUTORY STATE OF THE
LITIGATION.  IT IS CONCEIVABLE THAT AT THE TRIAL THE S.E.C. WOULD HAVE
BEEN ABLE TO MAKE OUT A CASE UNDER THE STATUTE CONSTRUED ACCORDING TO
ITS TERMS. 

I RESPECTFULLY DISSENT. 

FN1  ACCORDING TO RESPONDENTS' BRIEF (AND THE FACT DOES NOT APPEAR TO
BE CONTESTED), THE ANNUAL GROSS INCOME OF CAPITAL GAINS RESEARCH BUREAU
FROM PUBLISHING INVESTMENT INFORMATION AND ADVICE WAS SOME $570,000. 
EVEN ACCEPTING THE S.E.C.'S FIGURES, RESPONDENTS' PROFIT FROM THE
TRADING TRANSACTIONS IN QUESTION WAS SOMEWHAT LESS THAN $20,000.  THUS
ANY BASIS FOR AN INFERENCE THAT RESPONDENTS' ADVICE WAS TAINTED BY SELF
INTEREST, WHICH MIGHT HAVE BEEN DRAWN HAD RESPONDENTS' BUYING AND
SELLING ACTIVITIES BEEN MORE SIGNIFICANT, IS LACKING ON THIS RECORD. 

FN2  THAT SECTION MAKES IT UNLAWFUL "TO OBTAIN MONEY OR PROPERTY BY
MEANS OF  ...  ANY OMISSION TO STATE A MATERIAL FACT NECESSARY IN ORDER
TO MAKE THE STATEMENTS MADE, IN THE LIGHT OF THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE, NOT MISLEADING  ...  ." 

FN3  SECTION 17(A) OF THE 1933 ACT MAKES IT UNLAWFUL "(1) TO EMPLOY
ANY DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD  ...  (3) TO ENGAGE IN ANY
TRANSACTION, PRACTICE, OR COURSE OF BUSINESS WHICH OPERATES OR WOULD
OPERATE AS A FRAUD OR DECEIT UPON THE PURCHASER."  COMPARE THE LANGUAGE
OF THESE PROVISIONS WITH THAT OF SEC. 206(1), (2) OF THE INVESTMENT
ADVISERS ACT, SUPRA, P. 203. 

FN4  THE ARGUMENT IS THAT BY THE TIME OF ENACTMENT OF THE INVESTMENT
ADVISERS ACT IN 1940 CONGRESS HAD BECOME AWARE THAT THE COURTS "WERE
MERGING THE PROSCRIPTION AGAINST NONDISCLOSURE (CONTAINED IN THE 1933
SECURITIES ACT) INTO THE GENERAL PROSCRIPTION AGAINST FRAUD" ALSO FOUND
IN THE SAME ACT.  ANTE, P. 198.  HOWEVER, THE ONLY FEDERAL PRE-1940
CASE CITED IS SECURITIES & EXCHANGE COMM'N V. TORR, ANTE, P. 198, AND
SUPRA, P. 204.  THERE THE FAILURE OF A FIDUCIARY TO DISCLOSE THAT HIS
ADVICE WAS PROMPTED BY A "BRIBE" WAS EQUATED BY THE TRIAL JUDGE WITH
DECEIT.  SUCH A DECISION CAN HARDLY BE DEEMED TO ESTABLISH THAT ANY
NONDISCLOSURE OF A FACT MATERIAL TO THE RECIPIENT OF INVESTMENT ADVICE
IS FRAUD OR DECEIT.  SAYING THE LEAST, IT STRAINS CREDULITY THAT A
PROVISION EXPRESSLY PROSCRIBING MATERIAL OMISSIONS WOULD BE THOUGHT BY
CONGRESS TO BE "SURPLUSAGE" WHEN IT CAME TO ENACTING THE 1940 ACT. 
THIS IS PARTICULARLY SO WHEN IT IS REMEMBERED THAT VIOLATION OF THE
FRAUD AND DECEIT SECTION IS PUNISHABLE CRIMINALLY (SEC. 217 OF THE
INVESTMENT ADVISERS ACT OF 1940, 54 STAT. 857); CONGRESS MUST HAVE
KNOWN THAT THE COURTS DO NOT FAVOR EXPANSIVE CONSTRUCTIONS OF CRIMINAL
STATUTES. 
..END :


















DENNIS V. DENVER & RIO GRANDE R. CO. 375 U.S. 208 


NO. 25.  ARGUED NOVEMBER 19, 1963.  - DECIDED DECEMBER 9, 1963.  - 13
UTAH 2D 249, 372 P.2D 3, REVERSED AND REMANDED. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, IN
WHICH A JURY AWARDED PETITIONER A VERDICT FOR DAMAGES FOR THE LOSS OF
TWO FINGERS BY FROSTBITE AFTER HE HAD BEEN REQUIRED BY HIS FOREMAN TO
WORK OUTDOORS IN VERY COLD WEATHER, THE EVIDENCE WAS SUFFICIENT TO
SUPPORT THE JURY'S CONCLUSION THAT RESPONDENT RAILROAD'S NEGLIGENCE
CONTRIBUTED TO THE INJURY, AND THE STATE SUPREME COURT ERRED IN
VACATING THE JURY'S VERDICT AND ORDERING ENTRY OF JUDGMENT FOR
RESPONDENT.  PP. 208-210. 

DENNIS V. DENVER & RIO GRANDE WESTERN RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF UTAH. 

PER CURIAM. 

PETITIONER, A SECTION LABORER EMPLOYED BY RESPONDENT RAILROAD,
BROUGHT THIS SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT.
65, AS AMENDED, 45 U.S.C. SEC. 51 ET SEQ., IN A UTAH STATE COURT TO
RECOVER DAMAGES FOR PERSONAL INJURY SUSTAINED AS A RESULT OF
RESPONDENT'S ALLEGED NEGLIGENCE.  THE JURY, FINDING RESPONDENT
NEGLIGENT AND PETITIONER CONTRIBUTORILY NEGLIGENT, ASSESSED "GENERAL
DAMAGES" AT $20,000 AND DEDUCTED $10,000 "BY REASON OF CONTRIBUTORY
NEGLIGENCE," LEAVING A VERDICT OF $10,000 FOR PETITIONER.  THE SUPREME
COURT OF UTAH VACATED THE JURY VERDICT AND ORDERED THE ENTRY OF
JUDGMENT FOR RESPONDENT.  13 UTAH 2D 249, 372 P.2D 3.  WE GRANTED
CERTIORARI, 371 U.S. 946, TO CONSIDER WHETHER THE SUPREME COURT OF UTAH
ERRED IN ITS ACTION. 

FROM THE EVIDENCE ADDUCED AT TRIAL THE JURY COULD HAVE CONCLUDED
THAT:  PETITIONER WAS REQUIRED TO WORK FROM ABOUT 5 P.M. TO ABOUT 5
A.M. IN TEMPERATURES RANGING FROM 10 DEGREES FAHRENHEIT TO MINUS 5
DEGREES FAHRENHEIT, IN 10 INCHES OF SNOW, WITH "THE WIND A-BLOWING
PRETTY HARD," TO REPAIR A DAMAGED SECTION OF RAILROAD TRACK; PETITIONER
WAS DRESSED LESS WARMLY THAN THE OTHER MEMBERS OF THE CREW, AND THE
FOREMAN KNEW THIS; THE ONLY SOURCE OF HEAT (OUTSIDE OF THE CAB OF THE
TRUCK WHICH HAD TRANSPORTED THE CREW TO THE WORKSITE) WAS A FIRE BUILT
FROM A SINGLE RAILROAD TIE, WHICH DID NOT GIVE "VERY MUCH" HEAT; AT
ABOUT MIDNIGHT, PETITIONER, WHILE HANDLING A COLD WRENCH, NOTICED THAT
"TWO OF HIS FINGERS WERE CLAMPED SHUT AND HE HAD TO PULL THEM APART
... BEFORE HE COULD GET HIS GLOVE OFF"; HE ALSO NOTICED A "KIND OF
BURNING, TINGLING SENSATION" IN THESE FINGERS; ALTHOUGH HE COMMUNICATED
SOME OR ALL OF THIS TO THE FOREMAN, PETITIONER WAS PERMITTED TO
CONTINUE WORKING ON THE TRACK FOR ABOUT THREE AND ONE-HALF HOURS; HE
SPENT ONLY ABOUT ONE-HALF HOUR IN THE HEATED CAB OF THE TRUCK; AS A
RESULT OF THIS EXPOSURE, PETITIONER SUFFERED FROSTBITE AND LOST TWO
FINGERS. 

THERE CAN BE LITTLE DISPUTE THAT THESE FACTS, IF BELIEVED, ESTABLISH
NEGLIGENCE BY RESPONDENT RAILROAD, SINCE THEY SHOW THAT THE FOREMAN,
WHO HAD FULL CONTROL OVER PETITIONER'S ACTIVITIES WHILE ON THIS JOB,
DID NOT TAKE ALL NECESSARY AND REASONABLE PRECAUTIONS TO PREVENT INJURY
TO PETITIONER WHEN PUT ON NOTICE OF HIS CONDITION.  LAVENDER V. KURN,
327 U.S. 645; BOSTON & M.R. CO. V. MEECH, 156 F.2D 109, CERT. DENIED,
329 U.S. 763. 

IT IS TRUE THAT THERE WAS EVIDENCE IN CONFLICT WITH PETITIONER'S
VERSION OF WHAT OCCURRED.  FOR EXAMPLE, OTHER MEMBERS OF THE WORK CREW
TESTIFIED THAT IMMEDIATELY AFTER HIS COMPLAINT PETITIONER WAS
TRANSFERRED TO THE HEATED CAB WHERE HE STAYED UNTIL THE END OF THE JOB,
WHEREAS PETITIONER TESTIFIED THAT AFTER HIS COMPLAINT HE SPENT ONLY ONE
HALF HOUR IN THE HEATED CAB AND THREE AND ONE-HALF HOURS WORKING
OUTSIDE.  THERE WAS ALSO EVIDENCE FROM WHICH THE JURY COULD REASONABLY
HAVE CONCLUDED THAT PETITIONER'S OWN NEGLIGENCE WAS THE SOLE CAUSE OF
HIS INJURY.  BUT IN FELA CASES THIS COURT HAS REPEATEDLY HELD THAT
WHERE "THERE IS AN EVIDENTIARY BASIS FOR THE JURY'S VERDICT, THE JURY
IS FREE TO DISCARD OR DISBELIEVE WHATEVER FACTS ARE INCONSISTENT WITH
ITS CONCLUSION."  LAVENDER V. KURN, SUPRA, AT 653.  "ONLY WHEN THERE IS
A COMPLETE ABSENCE OF PROBATIVE FACTS TO SUPPORT THE CONCLUSION REACHED
(BY THE JURY) DOES A REVERSIBLE ERROR APPEAR."  IBID.  ONCE IT IS SHOWN
THAT "EMPLOYER NEGLIGENCE PLAYED ANY PART, EVEN THE SLIGHTEST, IN
PRODUCING THE INJURY," ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500,
506, A JURY VERDICT FOR THE EMPLOYEE MAY NOT BE UPSET ON THE BASIS OF
HIS OWN NEGLIGENCE, NO MATTER HOW SUBSTANTIAL IT MAY HAVE BEEN,
ALTHOUGH THE JURY MAY, OF COURSE, TAKE PETITIONER'S CONTRIBUTORY
NEGLIGENCE INTO ACCOUNT, AS IT DID HERE, IN ARRIVING AT THE FINAL
VERDICT. 

IN THIS CASE, PETITIONER'S EVIDENCE, THOUGH VIGOROUSLY DISPUTED, WAS
SUFFICIENT TO SUPPORT THE JURY'S CONCLUSION THAT RESPONDENT'S
NEGLIGENCE CONTRIBUTED TO THE INJURY.  HENCE, "THE APPELLATE COURT'S
FUNCTION WAS EXHAUSTED," LAVENDER V. KURN, SUPRA, AT 653, AND IT COULD
NOT PROPERLY SUBSTITUTE ITS JUDGMENT FOR THAT OF THE JURY AND DECIDE,
AS THE SUPREME COURT OF UTAH DID HERE, THAT "IT SEEMS QUITE INESCAPABLE
THAT IT WAS (PETITIONER'S) OWN CONDUCT  ...  THAT RESULTED IN THIS
REGRETTABLE INJURY."  13 UTAH 2D, AT 255; 372 P.2D, AT 7. 

THE JUDGMENT OF THE SUPREME COURT OF UTAH IS REVERSED AND THE CAUSE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE HARLAN CONCURS,
DISSENTING. 

THE CASES CITED BY THE COURT TO REVERSE THE UTAH SUPREME COURT ARE
FAMILIAR ONES THAT INVOLVE THE DUTY OF AN EMPLOYER TO PROVIDE THE
EMPLOYEE WITH A SAFE PLACE TO WORK.  LAVENDER V. KURN, 327 U.S. 645,
651-653; BOSTON & M.R. CO. V. MEECH, 156 F.2D 109, 111-112.  THAT ISSUE
WAS COVERED BY THE INSTRUCTIONS TO THE JURY IN THE PRESENT CASE.*  BUT
AS I READ THE RECORD THERE IS NO EVIDENCE OF NEGLIGENCE ON THE ISSUE OF
"A REASONABLY SAFE PLACE IN WHICH TO WORK."  IN THIS CASE EACH WORKMAN
FURNISHED HIS OWN CLOTHES.  IF IT WERE THE CUSTOM OF THE RAILROAD TO
FURNISH GLOVES OR OTHER CLOTHES TO THE EMPLOYEES OR IF, UNDER A
COLLECTIVE BARGAINING AGREEMENT, IT HAD BECOME ITS DUTY TO DO SO AND
PETITIONER HAD BEEN ISSUED FAULTY GARMENTS, WE WOULD HAVE A DIFFERENT
CASE.  WE WOULD ALSO HAVE A DIFFERENT CASE IF FAILURE TO FURNISH AN
EMPLOYEE WITH CERTAIN KINDS OF EQUIPMENT WERE TANTAMOUNT TO A FAILURE
TO PROVIDE HIM A SAFE PLACE TO WORK.  SEE, E.G., WILLIAMS V. ATLANTIC
COAST LINE R. CO., 190 F.2D 744; YOUNG V. CLINCHFIELD R. CO., 288 F.2D
499; FERRARA V. BOSTON & M.R. CO., 338 MASS. 323, 155 N.E.2D 416.  BUT
NO SUCH ISSUE IS TENDERED HERE. 

*"IT IS THE DUTY OF A RAILROAD COMPANY TO EXERCISE REASONABLE CARE IN
FURNISHING ITS EMPLOYEES WITH A REASONABLY SAFE PLACE IN WHICH TO
WORK.  THIS DUTY DOES NOT REQUIRE THE ABSOLUTE ELIMINATION OF ALL
DANGER, BUT IT DOES REQUIRE THE ELIMINATION OF ALL DANGERS WHICH THE
EXERCISE OF REASONABLE CARE WOULD REMOVE OR GUARD AGAINST. 

"IN THIS CONNECTION, YOU ARE INSTRUCTED THAT IF YOU FIND FROM A
PREPONDERANCE OF THE EVIDENCE, THAT THE RAILROAD COMPANY FAILED TO
EXERCISE REASONABLE CARE IN THAT IT SUBJECTED PLAINTIFF TO UNREASONABLE
EXPOSURE TO HARM FROM WEATHER CONDITIONS, THEN YOU ARE INSTRUCTED THAT
DEFENDANT WAS NEGLIGENT IN FAILING TO DISCHARGE ITS DUTY AS HEREINABOVE
SET FORTH; AND IF YOU FURTHER FIND THAT SUCH NEGLIGENCE, IF ANY, IN
WHOLE OR IN PART, PROXIMATELY CAUSED PLAINTIFF TO SUSTAIN INJURIES,
THEN YOU SHOULD RETURN A VERDICT IN FAVOR OF THE PLAINTIFF AND AGAINST
DEFENDANT AND ASSESS DAMAGES IN ACCORDANCE WITH THESE INSTRUCTIONS." 

THE WEATHER WAS BITTER, AND THE EMERGENCY JOB OF REPAIRING A SECTION
OF A DAMAGED RAIL COULD ONLY BE DONE OUTDOORS.  BUT THERE WAS A HEATED
TRUCK CAB FOR PROTECTION AGAINST THE WEATHER AND OUTDOORS THERE WAS A
FIRE.  THERE IS NOTHING TO SUGGEST THAT PETITIONER WAS BARRED FROM
USING EITHER, THAT PRESSURES WERE PUT ON HIM TO REMAIN OUTDOORS AND
AWAY FROM THE FIRE OR THE HEATED CAB, OR THAT DISCIPLINARY MEASURES
WOULD BE USED AGAINST THOSE WHO TOOK FREQUENT RECESSES TO KEEP WARM. 
RATHER, IT WAS ADMITTED THAT THE MEN GENERALLY TOOK TURNS USING THE
FIRE AND THAT EACH WAS THE BEST JUDGE OF WHEN HE SHOULD WARM HIMSELF. 

KNOWLEDGE OF THE FOREMAN THAT PETITIONER WAS DRESSED LESS WARMLY THAN
THE OTHER CREW MEMBERS WOULD BE RELEVANT IF IT WERE COUPLED WITH THE
FOREMAN'S INSISTENCE THAT HE PERFORM LABOR FOR WHICH HIS ATTIRE WAS NOT
SUITABLE.  THAT, TOO, IS A DIFFERENT CASE.  THE STRONGEST POSSIBLE CASE
FOR PETITIONER, AS THE COURT SAYS, IS THAT HE WAS "PERMITTED" TO
CONTINUE WORKING AFTER HIS FINGERS, WITH THE KNOWLEDGE OF THE FOREMAN,
BECAME VERY COLD.  BUT UNLESS EMPLOYERS ARE TO BECOME INSURERS OF THESE
INDUSTRIAL ACCIDENTS, THAT IS NO EVIDENCE OF NEGLIGENCE IN A SOCIETY
WHERE EVERYONE IS PRESUMED TO HAVE ENOUGH SENSE "TO COME IN OUT OF THE
RAIN." 

MR. JUSTICE HARLAN, DISSENTING. 

I DO NOT BELIEVE THIS CASE SHOULD HAVE BEEN TAKEN FOR REVIEW AND I
NOW DISSENT FROM THE REVERSAL OF THE JUDGMENT OF THE UTAH SUPREME
COURT, FOR REASONS ALREADY EXPRESSED IN PAST CASES OF THIS TYPE.   SEE
ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500, 559; WEBB V. ILLINOIS
CENTRAL R. CO., 352 U.S. 512, 559; FERGUSON V. MOORE-MCCORMACK LINES,
INC., 352 U.S. 521, 559; ARNOLD V. PANHANDLE & S.F.R. CO., 353 U.S.
360, 361; HARRIS V. PENNSYLVANIA R. CO., 361 U.S. 15, 25; DAVIS V.
VIRGINIAN R. CO., 361 U.S. 354, 358; MICHALIC V. CLEVELAND TANKERS,
INC., 364 U.S. 325, 332; GALLICK V. BALTIMORE & OHIO R. CO., 372 U.S.
108, 122; BASHAM V. PENNSYLVANIA R. CO., 372 U.S. 699, 701. 

IN THIS INSTANCE WE ARE NOT EVEN PRECISELY INFORMED BY THE COURT'S
OPINION WHEREIN THE RESPONDENT'S CONDUCT WAS NEGLIGENT.  THE MEANS FOR
REQUITING UNFORTUNATE INDUSTRIAL ACCIDENTS OF THIS SORT SHOULD BE FOUND
NOT IN DESTROYING THE SUPERVISORY POWER OF THE COURTS OVER JURY
VERDICTS UNSUPPORTED BY EVIDENCE OF EMPLOYER FAULT, BUT IN LEGISLATIVE
EXPANSION OF THE CONCEPTS OF WORKMEN'S COMPENSATION LAWS, UNDER WHICH
COMPENSATION IS NOT DEPENDENT UPON A SHOWING OF EMPLOYER NEGLIGENCE. 
CF. GALLICK V. BALTIMORE & OHIO R. CO., SUPRA.
..END :









KAYE V. SPENCE CHAPIN ADOPTION HOME 375 U.S. 214 


NO. 478.  DECIDED DECEMBER 9, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


KAYE V. SPENCE CHAPIN ADOPTION HOME. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ECKSTROM V. READING POLICE HOME ASSOCIATION 375 U.S. 214 


NO. 497.  DECIDED DECEMBER 9, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  REPORTED BELOW:  410 PA. 282, 189 A.2D 745. 


ECKSTROM V. READING POLICE HOME ASSOCIATION OF READING, PA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















FRANK ADAMS & CO. V. UNITED STATES 375 U.S. 215 


NO. 506.  DECIDED DECEMBER 9, 1963.  - AFFIRMED. 


FRANK ADAMS & CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THE MOTION OF HENRY B. STREET FOR LEAVE TO WITHDRAW HIS APPEARANCE AS
COUNSEL FOR THE APPELLANTS IS GRANTED.  THE MOTIONS TO AFFIRM ARE
GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :
















BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES V. UNITED STATES 375 U.S.
216 


NO. 510.  DECIDED DECEMBER 9, 1963.* - 221 F. SUPP. 19, AFFIRMED. 

*TOGETHER WITH NO. 511, BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS & STATION EMPLOYES ET AL. V. UNITED STATES ET
AL., ALSO ON APPEAL FROM THE SAME COURT. 


BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES ET AL. V. UNITED STATES ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :












FAHY V. CONNECTICUT 375 U.S. 85 


NO. 19.  ARGUED OCTOBER 16, 1963.  - DECIDED DECEMBER 2, 1963.  - 149
CONN. 577, 183 A.2D 256, REVERSED. 


PETITIONER WAIVED TRIAL BY JURY AND WAS CONVICTED IN A CONNECTICUT
STATE COURT OF WILFULLY INJURING A PUBLIC BUILDING BY PAINTING
SWASTIKAS ON A SYNAGOGUE.  AT HIS TRIAL, A CAN OF PAINT AND A PAINT
BRUSH WERE ADMITTED IN EVIDENCE OVER HIS OBJECTION.  ON APPEAL, THE
SUPREME COURT OF ERRORS HELD THAT THE PAINT AND BRUSH HAD BEEN OBTAINED
BY MEANS OF AN ILLEGAL SEARCH AND SEIZURE, AND THAT, THEREFORE, THE
TRIAL COURT ERRED IN ADMITTING THEM IN EVIDENCE, BUT THAT THEIR
ADMISSION WAS A HARMLESS ERROR, AND IT AFFIRMED THE CONVICTION.  HELD:
ON THE RECORD IN THIS CASE, THE ERRONEOUS ADMISSION OF THIS ILLEGALLY
OBTAINED EVIDENCE WAS PREJUDICIAL TO PETITIONER; IT CANNOT BE CALLED
HARMLESS ERROR; AND THE CONVICTION IS REVERSED.  PP. 85-92. 

FAHY V. CONNECTICUT. 

CERTIORARI TO THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAIVED TRIAL BY JURY AND WAS CONVICTED IN A CONNECTICUT
STATE COURT OF WILFULLY INJURING A PUBLIC BUILDING IN VIOLATION OF
CONNECTICUT GENERAL STATUTES SEC. 53-45(A).  SPECIFICALLY, PETITIONER
AND HIS CODEFENDANT ARNOLD (FN1) WERE FOUND GUILTY OF HAVING PAINTED
SWASTIKAS ON A NORWALK, CONNECTICUT, SYNAGOGUE.  THE TRIAL TOOK PLACE
BEFORE OUR DECISION IN MAPP V. OHIO, 367 U.S. 643, BUT THE CONVICTION
WAS AFFIRMED ON APPEAL AFTER THAT DECISION.  CONNECTICUT V. FAHY, 149
CONN. 577, 183 A.2D 256 (1962).  AT THE TRIAL OF THE CASE, A CAN OF
BLACK PAINT AND A PAINT BRUSH WERE ADMITTED INTO EVIDENCE OVER
PETITIONER'S OBJECTION.  ON APPEAL, THE CONNECTICUT SUPREME COURT OF
ERRORS HELD THAT THE PAINT AND BRUSH HAD BEEN OBTAINED BY MEANS OF AN
ILLEGAL SEARCH AND SEIZURE.  IT FURTHER HELD THAT THE MAPP DECISION
APPLIES TO CASES PENDING ON APPEAL IN CONNECTICUT COURTS AT THE TIME
THAT DECISION WAS RENDERED, AND, THEREFORE, THE TRIAL COURT ERRED IN
ADMITTING THE PAINT AND BRUSH INTO EVIDENCE.  HOWEVER, THE COURT
AFFIRMED PETITIONER'S CONVICTION BECAUSE IT FOUND THE ADMISSION OF THE
UNCONSTITUTIONALLY OBTAINED EVIDENCE TO HAVE BEEN HARMLESS ERROR. 
(FN2)  WE GRANTED CERTIORARI, 372 U.S. 928 (1963). 

ON THE FACTS OF THIS CASE, IT IS NOT NOW NECESSARY FOR US TO DECIDE
WHETHER THE ERRONEOUS ADMISSION OF EVIDENCE OBTAINED BY AN ILLEGAL
SEARCH AND SEIZURE CAN EVER BE SUBJECT TO THE NORMAL RULES OF "HARMLESS
ERROR" UNDER THE FEDERAL STANDARD OF WHAT CONSTITUTES HARMLESS ERROR. 
COMPARE KER V. CALIFORNIA, 374 U.S. 23.  WE FIND THAT THE ERRONEOUS
ADMISSION OF THIS UNCONSTITUTIONALLY OBTAINED EVIDENCE AT THIS
PETITIONER'S TRIAL WAS PREJUDICIAL; THEREFORE, THE ERROR WAS NOT
HARMLESS, AND THE CONVICTION MUST BE REVERSED.  WE ARE NOT CONCERNED
HERE WITH WHETHER THERE WAS SUFFICIENT EVIDENCE ON WHICH THE PETITIONER
COULD HAVE BEEN CONVICTED WITHOUT THE EVIDENCE COMPLAINED OF.  THE
QUESTION IS WHETHER THERE IS A REASONABLE POSSIBILITY THAT THE EVIDENCE
COMPLAINED OF MIGHT HAVE CONTRIBUTED TO THE CONVICTION.  TO DECIDE THIS
QUESTION, IT IS NECESSARY TO REVIEW THE FACTS OF THE CASE AND THE
EVIDENCE ADDUCED AT TRIAL. 

ON FEBRUARY 1, 1960, BETWEEN THE HOURS OF 4 AND 5 A.M., SWASTIKAS
WERE PAINTED WITH BLACK PAINT ON THE STEPS AND WALLS OF A NORWALK
SYNAGOGUE.  AT ABOUT 4:40 A.M., OFFICER LINDWALL OF THE NORWALK POLICE
SAW AN AUTOMOBILE BEING OPERATED WITHOUT LIGHTS ABOUT A BLOCK FROM THE
SYNAGOGUE.  UPON STOPPING THE CAR, LINDWALL FOUND THAT FAHY WAS DRIVING
AND ARNOLD WAS A PASSENGER.  LINDWALL QUESTIONED FAHY AND ARNOLD ABOUT
THEIR REASON FOR BEING OUT AT THAT HOUR, AND THEY TOLD HIM THEY HAD
BEEN TO A DINER FOR COFFEE AND WERE GOING HOME.  LINDWALL ALSO CHECKED
THE CAR AND FOUND A CAN OF BLACK PAINT AND A PAINT BRUSH UNDER THE
FRONT SEAT.  HAVING NO REASON TO DO OTHERWISE, LINDWALL RELEASED FAHY
AND ARNOLD.  HE FOLLOWED THE CAR TO FAHY'S HOME.  LATER THE SAME
MORNING, LINDWALL LEARNED OF THE PAINTING OF THE SWASTIKAS.  THEREUPON,
HE WENT TO FAHY'S HOME AND - WITHOUT HAVING APPLIED FOR OR OBTAINED AN
ARREST OR SEARCH WARRANT - ENTERED THE GARAGE UNDER THE HOUSE AND
REMOVED FROM FAHY'S CAR THE CAN OF PAINT AND THE BRUSH.  ABOUT TWO
HOURS LATER, LINDWALL RETURNED TO THE FAHY HOME, THIS TIME IN THE
COMPANY OF TWO OTHER NORWALK POLICEMEN.  PURSUANT TO A VALID ARREST
WARRANT, THE OFFICERS ARRESTED FAHY AND ARNOLD. 

AT TRIAL, THE COURT ADMITTED THE PAINT AND BRUSH INTO EVIDENCE OVER
PETITIONER'S OBJECTION.  WE ASSUME, AS DID THE CONNECTICUT SUPREME
COURT OF ERRORS, THAT DOING SO WAS ERROR BECAUSE THIS EVIDENCE WAS
OBTAINED BY AN ILLEGAL SEARCH AND SEIZURE AND WAS THUS INADMISSIBLE
UNDER THE RULE OF MAPP V. OHIO.  EXAMINING THE EFFECT OF THIS EVIDENCE
UPON THE OTHER EVIDENCE ADDUCED AT TRIAL AND UPON THE CONDUCT OF THE
DEFENSE, WE FIND INESCAPABLE THE CONCLUSION THAT THE TRIAL COURT'S
ERROR WAS PREJUDICIAL AND CANNOT BE CALLED HARMLESS. 

OBVIOUSLY, THE TANGIBLE EVIDENCE OF THE PAINT AND BRUSH WAS ITSELF
INCRIMINATING.  IN ADDITION, IT WAS USED TO CORROBORATE THE TESTIMONY
OF OFFICER LINDWALL AS TO THE PRESENCE OF PETITIONER NEAR THE SCENE OF
THE CRIME AT ABOUT THE TIME IT WAS COMMITTED AND AS TO THE PRESENCE OF
A CAN OF PAINT AND A BRUSH IN PETITIONER'S CAR AT THAT TIME.  WHEN
OFFICER LINDWALL TESTIFIED AT TRIAL CONCERNING THAT INCIDENT, THE
FOLLOWING TRANSPIRED: 

"Q.  WILL YOU TELL THE COURT WHAT YOU FOUND IN THE CAR? 

     *         *         *         *         * 

"A.  CHECKING ON THE PASSENGERS' SIDE, UNDER THE FRONT SEAT I FOUND A
SMALL JAR OF PAINT AND A PAINT BRUSH. 

"Q.  ARE YOU ABLE TO IDENTIFY THIS OBJECT I SHOW YOU? 

"A.  YES. 

"Q.  WHAT IS IT? 

"A.  A JAR OF PAINT I FOUND IN THE MOTOR VEHICLE. 

     *         *         *         *         * 

"Q. I SHOW YOU THIS OBJECT AND ASK YOU IF YOU CAN IDENTIFY THAT. 

"A.  YES, SIR. 

"Q.  WHAT IS IT? 

"A.  A PAINT BRUSH. 

"Q.  WHERE DID YOU FIRST SEE THIS PAINT BRUSH? 

"A.  UNDER THE FRONT SEAT OF MR. FAHY'S CAR." 

THE BRUSH AND PAINT WERE OFFERED IN EVIDENCE AND WERE RECEIVED OVER
PETITIONER'S OBJECTION.  THE TRIAL COURT FOUND:  "13.  THE POLICE FOUND
THE SAME CAN OF BLACK PAINT AND THE BRUSH IN THE CAR WHICH THE
DEFENDANTS HAD BEEN OPERATING WHEN STOPPED BY OFFICER LINDWALL EARLIER
IN THE MORNING."  IT CAN BE INFERRED FROM THIS THAT THE ADMISSION OF
THE ILLEGALLY SEIZED EVIDENCE MADE LINDWALL'S TESTIMONY FAR MORE
DAMAGING THAN IT WOULD OTHERWISE HAVE BEEN. 

IN ADDITION, THE ILLEGALLY OBTAINED EVIDENCE WAS USED AS THE BASIS OF
OPINION TESTIMONY TO THE EFFECT THAT THE PAINT AND BRUSH MATCHED THE
MARKINGS ON THE SYNAGOGUE, THUS FORGING ANOTHER LINK BETWEEN THE
ACCUSED AND THE CRIME CHARGED.  AT TRIAL, NORWALK POLICE OFFICER TIGANO
TESTIFIED THAT HE HAD EXAMINED THE MARKINGS ON THE SYNAGOGUE AND HAD
DETERMINED THAT THEY WERE PUT ON WITH BLACK PAINT.  HE FURTHER
TESTIFIED THAT HE HAD EXAMINED THE CONTENTS OF THE CAN ILLEGALLY SEIZED
FROM FAHY'S CAR AND HAD DETERMINED THAT IT CONTAINED BLACK PAINT.  EVEN
MORE DAMAGING WAS TIGANO'S TESTIMONY THAT HE HAD TAKEN THE ILLEGALLY
SEIZED BRUSH TO THE SYNAGOGUE "TO MEASURE THE WIDTH OF THE BRUSH WITH
THE WIDTH OF THE PAINTINGS OF THE SWASTIKAS."  OVER OBJECTION, TIGANO
THEN TESTIFIED THAT THE BRUSH "FITTED THE SAME AS THE PAINT BRUSH IN
SOME DRAWINGS OF THE LINES AND SOME IT DID NOT DUE TO THE FACT THE
PAINT DRIPPED."  THUS THE TRIAL COURT FOUND:  "14.  THE TWO-INCH PAINT
BRUSH MATCHED THE MARKINGS MADE WITH BLACK PAINT UPON THE SYNAGOGUE." 
IN RELATION TO THIS TESTIMONY, THE PREJUDICIAL EFFECT OF ADMITTING THE
ILLEGALLY OBTAINED EVIDENCE IS OBVIOUS. 

OTHER INCRIMINATING EVIDENCE ADMITTED AT TRIAL CONCERNED ADMISSIONS
PETITIONER MADE WHEN HE WAS ARRESTED AND A FULL CONFESSION MADE AT THE
POLICE STATION LATER.  TESTIFYING AT TRIAL, NORWALK POLICE LIEUTENANT
VIRGULAK RECOUNTED WHAT TOOK PLACE WHEN FAHY, WHO WAS JUST WAKING UP AT
THE TIME, WAS ARRESTED: 

"I TOLD HIM HE WAS UNDER ARREST FOR PAINTING SWASTIKAS ON THE
SYNAGOGUE.  HE SAID, 'OH, THAT?'  AND HE APPEARED TO LAY BACK IN BED. 

     *         *         *         *  * 

"Q.  DID YOU HAVE ANY FURTHER CONVERSATION WITH FAHY BEFORE YOU
REACHED THE POLICE STATION THAT YOU REMEMBER? 

"A. I ASKED HIM WHAT THE REASON WAS FOR PAINTING THE SWASTIKAS AND HE
SAID IT WAS ONLY A PRANK AND I ASKED HIM WHY AND HE SAID FOR KICKS." 

AT THE POLICE STATION, THERE WAS FURTHER QUESTIONING, AND FAHY TOLD
LIEUTENANT VIRGULAK THAT HE, FAHY, WOULD TAKE THE RESPONSIBILITY FOR
PAINTING THE SWASTIKAS.  IN ADDITION, SOME HOURS AFTER THE ARREST
ARNOLD WAS ASKED TO GIVE A STATEMENT OF THE EVENTS, AND HE COMPLIED,
DICTATING A COMPLETE CONFESSION OF TWO TYPEWRITTEN PAGES.  AFTER THIS
CONFESSION WAS ADMITTED AGAINST ARNOLD AT TRIAL, LIEUTENANT VIRGULAK
TESTIFIED THAT HE HAD READ THE CONFESSION TO FAHY AND: 

"Q.  AFTER YOU FINISHED READING IT, WILL YOU TELL US WHETHER OR NOT
HE (FAHY) MADE ANY COMMENT? 

"A.  I ASKED HIM WHAT HIS VERSION WAS AND HE SAID THE STORY WAS AS I
HAD IT FROM MR. ARNOLD.  I ASKED HIM IF HE WOULD LIKE TO GIVE A WRITTEN
STATEMENT AND HE DECLINED." 

THE RECORD DOES NOT SHOW WHETHER FAHY KNEW THAT THE POLICE HAD SEIZED
THE PAINT AND BRUSH BEFORE HE MADE HIS ADMISSIONS AT THE TIME OF ARREST
AND EN ROUTE TO THE POLICE STATION.  IN ORAL ARGUMENT, HOWEVER, COUNSEL
FOR THE STATE TOLD THE COURT THAT FAHY "PROBABLY" HAD BEEN TOLD OF THE
SEARCH AND SEIZURE BY THEN.  OF COURSE, THE FULL CONFESSION WAS MORE
DAMAGING TO THE DEFENDANTS, AND UNQUESTIONABLY THE DEFENDANTS KNEW THE
POLICE HAD OBTAINED THE PAINT AND BRUSH BY THE TIME THEY CONFESSED. 
BUT THE DEFENDANTS WERE NOT ALLOWED TO PURSUE THE ILLEGAL SEARCH AND
SEIZURE INQUIRY AT TRIAL, BECAUSE, AT THE TIME OF TRIAL, THE
EXCLUSIONARY RULE WAS NOT APPLIED IN CONNECTICUT STATE COURTS.  THUS
PETITIONER WAS UNABLE TO CLAIM AT TRIAL THAT THE ILLEGALLY SEIZED
EVIDENCE INDUCED HIS ADMISSIONS AND CONFESSION.  PETITIONER HAS TOLD
THE COURT THAT HE WOULD SO CLAIM WERE HE ALLOWED TO CHALLENGE THE
SEARCH AND SEIZURE AS ILLEGAL AT A NEW TRIAL.  AND WE THINK THAT SUCH A
LINE OF INQUIRY IS PERMISSIBLE.  AS THE COURT HAS NOTED IN THE PAST:
"THE ESSENCE OF A PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE IN A
CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE USED
BEFORE THE COURT BUT THAT IT SHALL NOT BE USED AT ALL."  SEE
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385, 392; SEE ALSO
NARDONE V. UNITED STATES, 308 U.S. 338; WONG SUN V. UNITED STATES, 371
U.S. 471.  THUS PETITIONER SHOULD HAVE HAD A CHANCE TO SHOW THAT HIS
ADMISSIONS WERE INDUCED BY BEING CONFRONTED WITH THE ILLEGALLY SEIZED
EVIDENCE. 

NOR CAN WE IGNORE THE CUMULATIVE PREJUDICIAL EFFECT OF THIS EVIDENCE
UPON THE CONDUCT OF THE DEFENSE AT TRIAL.  IT WAS ONLY AFTER ADMISSION
OF THE PAINT AND BRUSH AND ONLY AFTER THEIR SUBSEQUENT USE TO
CORROBORATE OTHER STATE'S EVIDENCE AND ONLY AFTER INTRODUCTION OF THE
CONFESSION THAT THE DEFENDANTS TOOK THE STAND, ADMITTED THEIR ACTS, AND
TRIED TO ESTABLISH THAT THE NATURE OF THOSE ACTS WAS NOT WITHIN THE
SCOPE OF THE FELONY STATUTE UNDER WHICH THE DEFENDANTS HAD BEEN
CHARGED.  (FN3)  WE DO NOT MEAN TO SUGGEST THAT PETITIONER HAS
PRESENTED ANY VALID CLAIM BASED ON THE PRIVILEGE AGAINST SELF
INCRIMINATION.  WE MERELY NOTE THIS COURSE OF EVENTS AS ANOTHER
INDICATION OF THE PREJUDICIAL EFFECT OF THE ERRONEOUSLY ADMITTED
EVIDENCE. 

FROM THE FOREGOING IT CLEARLY APPEARS THAT THE ERRONEOUS ADMISSION OF
THIS ILLEGALLY OBTAINED EVIDENCE WAS PREJUDICIAL TO PETITIONER AND
HENCE IT CANNOT BE CALLED HARMLESS ERROR.  THEREFORE, THE CONVICTION IS
REVERSED, AND THE CAUSE IS REMANDED FOR PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  ARNOLD WAS TRIED AND CONVICTED WITH PETITIONER FAHY, AND THEIR
APPEALS WERE HEARD AND DECIDED TOGETHER.  ARNOLD ALSO FILED A PETITION
FOR CERTIORARI; HOWEVER, THAT PETITION WAS DISMISSED ON ARNOLD'S MOTION
BEFORE WE GRANTED FAHY'S PETITION. 

FN2  CONNECTICUT'S STATUTORY HARMLESS ERROR RULE STATES THAT THE
SUPREME COURT OF ERRORS NEED NOT REVERSE A JUDGMENT BELOW IF IT FINDS
THE ERRORS COMPLAINED OF "HAVE NOT MATERIALLY INJURED THE APPELLANT." 
CONNECTICUT GENERAL STATUTES SEC. 52-265 (1958). 

FN3  THE CONNECTICUT SUPREME COURT OF ERRORS REJECTED PETITIONER'S
ARGUMENT THAT PAINTING SWASTIKAS ON A SYNAGOGUE WAS "DEFACEMENT," NOT
"INJURY," TO A PUBLIC BUILDING.  THE STATUTE INVOLVED WAS PASSED IN
1832 AND MADE IT ILLEGAL TO "INJURE OR DEFACE" A PUBLIC BUILDING.  IN
1875, THE WORDS "OR DEFACE" WERE OMITTED, AND THE STATUTE REMAINED
ESSENTIALLY UNCHANGED THEREAFTER.  THE CONNECTICUT SUPREME COURT OF
ERRORS HELD THAT "INJURE" INCLUDES DEFACEMENT AND THUS INCLUDES
PETITIONER'S ACTS. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK, MR. JUSTICE STEWART AND
MR. JUSTICE WHITE JOIN, DISSENTING. 

THE ONLY QUESTION IN THIS CASE WHICH MERITS CONSIDERATION BY THIS
COURT, AND WHICH ALONE ACCOUNTS FOR THE CASE BEING HERE AT ALL, IS THAT
WHICH THE MAJORITY DOES NOT REACH:  DOES THE FOURTEENTH AMENDMENT
PREVENT A STATE FROM APPLYING ITS HARMLESS-ERROR RULE IN A CRIMINAL
TRIAL WITH RESPECT TO THE ERRONEOUS ADMISSION OF EVIDENCE OBTAINED
THROUGH AN UNCONSTITUTIONAL SEARCH AND SEIZURE?  THE MAJORITY AVOIDS
THIS ISSUE ONLY BY DISREGARDING THE FINDING OF THE CONNECTICUT SUPREME
COURT OF ERRORS THAT THE ERRONEOUSLY ADMITTED EVIDENCE WAS WITHOUT
PREJUDICIAL EFFECT ON THE OUTCOME OF PETITIONER'S TRIAL. 

EVIDENTIARY QUESTIONS OF THIS SORT ARE NOT A PROPER PART OF THIS
COURT'S BUSINESS, PARTICULARLY IN CASES COMING HERE FROM STATE COURTS
OVER WHICH THIS COURT POSSESSES NO SUPERVISORY POWER.  THIS IS NOT THE
RARE INSTANCE OF A STATE CONVICTION WHICH RESTS UPON A RECORD THAT IS
DEVOID OF ANY EVIDENCE TO SUPPORT THE CHARGE AGAINST THE DEFENDANT, SEE
THOMPSON V. LOUISVILLE, 362 U.S. 199; GARNER V. LOUISIANA, 368 U.S.
157.  THE MOST THAT CAN BE SAID IS THAT THE RECORD LEAVES THE ISSUE OF
HARMLESS ERROR OPEN TO DIFFERING CONCLUSIONS.  THAT, HOWEVER, FURNISHES
NO GROUND FOR THIS COURT'S INTERVENTION, EVEN IN THE NAME OF AVOIDING
THE CONSTITUTIONAL QUESTION WHICH BROUGHT THE CASE HERE. 
FURTHERMORE, TAKING THE COURT'S OPINION ON ITS OWN BOTTOM, I FEEL
COMPELLED TO SAY, WITH DUE RESPECT, THAT I AM UNABLE TO UNDERSTAND ITS
EVALUATION OF THE RECORD.  THE OPINION BELOW PROVIDES THE FULL ANSWER
TO THE PETITIONER'S CLAIM THAT THE ADMISSION INTO EVIDENCE OF THE CAN
OF PAINT AND PAINT BRUSH PREJUDICED HIM: 

"  ...  THE DEFENDANTS DO NOT CLAIM, NOR, AS THE TRANSCRIPT SHOWS,
COULD THEY CLAIM, THAT THE ILLEGAL SEARCH AND SEIZURE INDUCED THEIR
ADMISSIONS OR CONFESSIONS.  THEIR CLAIM IS THAT, 'HAD THEY BEEN ABLE TO
PRECLUDE THE ADMISSION OF THE ILLEGALLY SEIZED EVIDENCE, (THEIR)
CONFESSIONS WOULD NOT HAVE BEEN ADMISSIBLE,' UNDER THE RULE OF STATE V.
DOUCETTE, 147 CONN.  95, 98, 157 A.2D 487, BECAUSE THERE WAS, APART
FROM THE CONFESSIONS, INSUFFICIENT EVIDENCE OF THE CORPUS DELICTI, THAT
IS, THAT THE CRIME CHARGED HAD BEEN COMMITTED BY SOMEONE.  IN OTHER
WORDS, THEIR CLAIM IS THAT THE STATE, IN ORDER TO PROVE THAT A CRIME
HAD BEEN COMMITTED, HAD TO RELY SOLELY ON THE ADMISSION IN EVIDENCE OF
THE PAINT JAR AND THE BRUSH.  THE ANSWER TO THAT CLAIM IS THAT THERE
WAS AMPLE EVIDENCE BESIDES THE DEFENDANTS' CONFESSIONS AND THE JAR OF
PAINT AND THE BRUSH TO PROVE THAT SWASTIKAS HAD BEEN PAINTED ON THE
SYNAGOGUE BETWEEN THE HOURS OF 4 AND 5 O'CLOCK ON THE MORNING OF
FEBRUARY 1, 1960.  THIS WAS SUFFICIENT TO ESTABLISH THAT THE CRIME
CHARGED HAD BEEN COMMITTED BY SOMEONE.  THE CONFESSIONS WERE NOT
INADMISSIBLE ON THE GROUND CLAIMED, AND NO OTHER GROUND OF
INADMISSIBILITY IS ADVANCED. 

"THE PAINT JAR AND THE BRUSH, WHICH WERE EXHIBITS, WERE, AT MOST,
CUMULATIVE.  THE TRANSCRIPT OF THE EVIDENCE OF THE STATE'S CASE, IN
CHIEF, DISCLOSES OVERWHELMING EVIDENCE OF THE GUILT OF THE DEFENDANTS. 
THEY WERE OBSERVED A BLOCK FROM THE SCENE OF THE CRIME AT APPROXIMATELY
THE TIME WHEN IT WAS COMMITTED, RIDING IN AN AUTOMOBILE WITHOUT LIGHTS,
AND WERE BROUGHT TO A STOP ONLY AFTER A POLICE OFFICER HAD PURSUED THEM
FOR UPWARDS OF A MILE.  WHEN THE POLICE LATER IN THE MORNING CAME WITH
WARRANTS TO ARREST THEM, THEY ADMITTED THEIR GUILT AT ONCE AND
ATTEMPTED TO EXCUSE THEIR CONDUCT AS A 'PRANK.'  BOTH LATER FREELY
CONFESSED  ...  ."  149 CONN. 577, 587-588, 183 A.2D 256, 261-262. 

THE COURT'S DISCUSSION OF CORROBORATIVE AND CUMULATIVE EVIDENCE AND
ITS EFFECT ON THE CONDUCT OF THE DEFENSE IS SURELY BESIDE THE POINT IN
A CASE IN WHICH BOTH BEFORE AND DURING TRIAL IT WAS NOT DISPUTED THAT
THE PETITIONER HAD COMMITTED THE ACTS IN QUESTION AND THE ONLY DEFENSE
RAISED WAS THAT THE ACTS WERE NOT CRIMINAL AS CHARGED.  (FN1) 

THIS BRINGS ME TO THE QUESTION WHICH THE COURT DOES NOT REACH:  WAS
IT CONSTITUTIONALLY PERMISSIBLE FOR CONNECTICUT TO APPLY ITS HARMLESS
ERROR RULE TO SAVE THIS CONVICTION FROM THE OTHERWISE VITIATING EFFECT
OF THE ADMISSION OF THE UNCONSTITUTIONALLY SEIZED EVIDENCE?  I SEE NO
REASON WHY NOT.  IT IS OBVIOUS THAT THERE IS NO NECESSARY CONNECTION
BETWEEN THE FACT THAT EVIDENCE WAS UNCONSTITUTIONALLY SEIZED AND THE
DEGREE OF HARM CAUSED BY ITS ADMISSION.  THE QUESTION OF HARMLESS ERROR
TURNS NOT ON THE REASONS FOR INADMISSIBILITY BUT ON THE EFFECT OF THE
EVIDENCE IN THE CONTEXT OF A PARTICULAR CASE.  ERRONEOUSLY ADMITTED
"CONSTITUTIONAL" EVIDENCE MAY OFTEN BE MORE PREJUDICIAL THAN
ERRONEOUSLY ADMITTED "UNCONSTITUTIONAL" EVIDENCE.  SINCE THE HARMLESS
ERROR RULE PLAINLY AFFORDS NO SHIELD UNDER WHICH PROSECUTORS MIGHT USE
DAMAGING EVIDENCE, UNCONSTITUTIONALLY OBTAINED, TO SECURE A CONVICTION,
THERE IS NO DANGER THAT APPLICATION OF THE RULE WILL UNDERMINE THE
PROPHYLACTIC FUNCTION OF THE RULE OF INADMISSIBILITY. 

CASES IN WHICH THIS COURT HAS HELD THAT THE SUFFICIENCY OF OTHER
EVIDENCE WILL NOT VALIDATE A CONVICTION IF AN UNCONSTITUTIONALLY
OBTAINED CONFESSION IS INTRODUCED AT TRIAL, E.G., MALINSKI V. NEW YORK,
324 U.S. 401, ARE INAPPOSITE.  IT MAY WELL BE THAT A CONFESSION IS
NEVER TO BE CONSIDERED AS NONPREJUDICIAL.  IN ANY EVENT, THE STANDARD
APPLIED HERE REQUIRED A DETERMINATION THAT EXCLUSION OF THE
UNCONSTITUTIONAL EVIDENCE COULD NOT HAVE CHANGED THE OUTCOME OF THE
TRIAL.  THAT IS A MUCH STRICTER STANDARD THAN THAT OF INDEPENDENTLY
SUFFICIENT EVIDENCE, WHICH LEAVES OPEN THE POSSIBILITY THAT THE TRIER
OF FACT DID RELY ON THE UNCONSTITUTIONAL EVIDENCE AND, THEREFORE, WOULD
HAVE REACHED A DIFFERENT CONCLUSION IF THE EVIDENCE HAD BEEN EXCLUDED. 
(FN2) 

I WOULD AFFIRM. 

FN1  AS THE QUOTED PORTION OF THE OPINION BELOW SHOWS, OUR COURT, BY
RELYING ON THE PETITIONER'S STATEMENT THAT HE WOULD CLAIM AT A NEW
TRIAL THAT THE UNLAWFULLY SEIZED EVIDENCE INDUCED HIS ADMISSIONS AND
CONFESSION, ACCEPTS A CLAIM WHICH, APART FROM ITS LACK OF FOUNDATION IN
THE RECORD, IS MADE FOR THE FIRST TIME HERE. 

FN2  THERE IS NO NEED TO CONSIDER WHETHER A STATE OR FEDERAL STANDARD
OF HARMLESS ERROR GOVERNS, SINCE THE STATE STANDARD APPLIED HERE IS AS
STRICT AS ANY POSSIBLE FEDERAL STANDARD. 
..END :












RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1625, AFL-CIO V.
SCHERMERHORN 375 U.S. 96 


NO. 13.  ARGUED APRIL 18, 1963.  - DECIDED IN PART AND SET FOR
REARGUMENT ON ONE ISSUE JUNE 3, 1963.  - REARGUED OCTOBER 16-17, 1963. 
- DECIDED DECEMBER 2, 1963.  - 141 SO. 2D 269, AFFIRMED. 


PETITIONER UNION AND AN EMPLOYER IN FLORIDA ENTERED INTO A COLLECTIVE
BARGAINING AGREEMENT CONTAINING AN "AGENCY SHOP" CLAUSE, WHICH LEFT
UNION MEMBERSHIP OPTIONAL WITH THE EMPLOYEES BUT REQUIRED THAT, AS A
CONDITION OF CONTINUED EMPLOYMENT, NONUNION EMPLOYEES PAY TO THE UNION
SUMS EQUAL TO THE INITIATION FEES AND PERIODIC DUES PAID BY UNION
MEMBERS.  NONUNION EMPLOYEES OF THE EMPLOYER SUED IN A FLORIDA STATE
COURT FOR A DECLARATORY JUDGMENT THAT THIS PROVISION WAS "NULL AND
VOID" AND UNENFORCEABLE UNDER THE FLORIDA RIGHT-TO-WORK LAW AND FOR AN
INJUNCTION AGAINST PETITIONER UNION AND THE EMPLOYER TO PREVENT THEM
FROM REQUIRING NONUNION EMPLOYEES TO CONTRIBUTE MONEY TO THE UNION. 
HELD:  THE FLORIDA COURTS, RATHER THAN SOLELY THE NATIONAL LABOR
RELATIONS BOARD, ARE TRIBUNALS WITH JURISDICTION TO ENFORCE THE STATE'S
PROHIBITION AGAINST AN "AGENCY SHOP" CLAUSE IN AN EXECUTED COLLECTIVE
BARGAINING AGREEMENT.  SAN DIEGO COUNCIL V. GARMON, 359 U.S. 236,
DISTINGUISHED.   PP. 97-105. 

RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1625, AFL-CIO, ET AL. V.
SCHERMERHORN ET AL. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION IN THE CASE IS THE ONE WE SET DOWN FOR REARGUMENT
IN 373 U.S. 746, 747-748: "WHETHER THE FLORIDA COURTS, RATHER THAN
SOLELY THE NATIONAL LABOR RELATIONS BOARD, ARE TRIBUNALS WITH
JURISDICTION TO ENFORCE THE STATE'S PROHIBITION" AGAINST AN "AGENCY
SHOP" CLAUSE IN A COLLECTIVE BARGAINING AGREEMENT. 

IN THIS CASE THE UNION AND THE EMPLOYER NEGOTIATED A COLLECTIVE
BARGAINING AGREEMENT THAT CONTAINED AN "AGENCY SHOP" CLAUSE PROVIDING
THAT THE EMPLOYEES COVERED BY THE CONTRACT WHO CHOSE NOT TO JOIN THE
UNION WERE REQUIRED "TO PAY AS A CONDITION OF EMPLOYMENT, AN INITIAL
SERVICE FEE AND MONTHLY SERVICE FEES" TO THE UNION.  NONUNION EMPLOYEES
BROUGHT SUIT IN A FLORIDA COURT TO HAVE THE AGENCY SHOP CLAUSE DECLARED
ILLEGAL, FOR AN INJUNCTION AGAINST ENFORCEMENT OF IT, AND FOR AN
ACCOUNTING.  THE FLORIDA SUPREME COURT HELD THAT THIS NEGOTIATED AND
EXECUTED UNION-SECURITY AGREEMENT VIOLATES THE "RIGHT TO WORK"
PROVISION OF THE FLORIDA CONSTITUTION AND THAT THE STATE COURTS HAVE
JURISDICTION TO AFFORD A REMEDY.  141 SO. 2D 269. 

WE AGREE WITH THAT VIEW. 

WHILE SEC. 8(A)(3) OF THE TAFT-HARTLEY ACT PROVIDES (FN1) THAT IT IS
NOT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER AND A UNION TO REQUIRE
MEMBERSHIP IN A UNION AS A CONDITION OF EMPLOYMENT PROVIDED THE
SPECIFIED CONDITIONS ARE MET, SEC. 14(B) (61 STAT. 151, 29 U.S.C. SEC.
164(B)) PROVIDES: 

"NOTHING IN THIS ACT 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." 

WE START FROM THE PREMISE THAT, WHILE CONGRESS COULD PREEMPT AS MUCH
OR AS LITTLE OF THIS INTERSTATE FIELD AS IT CHOSE, IT WOULD BE ODD TO
CONSTRUE SEC. 14(B) AS PERMITTING A STATE TO PROHIBIT THE AGENCY CLAUSE
BUT BARRING IT FROM IMPLEMENTING ITS OWN LAW WITH SANCTIONS OF THE KIND
INVOLVED HERE. 

ACT.  THE LATTER DID NOT BAR AS A MATTER OF FEDERAL LAW AN AGENCY-SHOP
AGREEMENT.  (FN2)  SECTION 8(A)(3) OF THE TAFT-HARTLEY ACT ALSO ALLOWED
IT, SAYING THAT "NOTHING IN THIS ACT, OR IN ANY OTHER STATUTE OF THE
UNITED STATES, SHALL PRECLUDE" ONE.  (FN3) 

BY THE TIME SEC. 14(B) WAS WRITTEN INTO THE ACT, TWELVE STATES HAD
STATUTES OR CONSTITUTIONAL PROVISIONS OUTLAWING OR RESTRICTING THE
CLOSED SHOP AND RELATED DEVICES (FN4) - A STATE POWER WHICH WE
SUSTAINED IN LINCOLN UNION V. NORTHWESTERN CO., 335 U.S. 525.  THESE
LAWS - ABOUT WHICH CONGRESS SEEMS TO HAVE BEEN WELL INFORMED DURING THE
1947 DEBATES (FN5) - HAD A WIDE VARIETY OF SANCTIONS, INCLUDING
INJUNCTIONS, DAMAGE SUITS, AND CRIMINAL PENALTIES.  IN 1947 CONGRESS
DID NOT OUTLAW UNION-SECURITY AGREEMENTS PER SE; BUT IT DID ADD NEW
CONDITIONS, WHICH, AS PRESENTLY PROVIDED IN SEC. 8(A)(3), (FN6) REQUIRE
THAT THERE BE A 30-DAY WAITING PERIOD BEFORE ANY EMPLOYEE IS FORCED
INTO A UNION, THAT THE UNION IN QUESTION IS THE APPROPRIATE
REPRESENTATIVE OF THE EMPLOYEES, AND THAT AN EMPLOYER NOT DISCRIMINATE
AGAINST AN EMPLOYEE IF HE HAS REASONABLE GROUNDS FOR BELIEVING THAT
MEMBERSHIP IN THE UNION WAS NOT AVAILABLE TO THE EMPLOYEE ON A
NONDISCRIMINATORY BASIS OR THAT THE EMPLOYEE'S MEMBERSHIP WAS DENIED OR
TERMINATED FOR REASONS OTHER THAN FAILURE TO MEET UNION-SHOP
REQUIREMENTS AS TO DUES AND FEES.  IN OTHER WORDS, CONGRESS UNDERTOOK
PERVASIVE REGULATION OF UNION-SECURITY AGREEMENTS, RAISING IN THE MINDS
OF MANY WHETHER IT THEREBY PREEMPTED THE FIELD UNDER THE DECISION IN
HILL V. FLORIDA, 325 U.S. 538, AND PUT SUCH AGREEMENTS BEYOND STATE
CONTROL.  THAT IS ONE REASON WHY A SECTION, WHICH LATER BECAME SEC.
14(B), APPEARED IN THE HOUSE BILL (FN7) - A PROVISION DESCRIBED IN THE
HOUSE REPORT (FN8) AS MAKING CLEAR AND UNAMBIGUOUS THE PURPOSE OF
CONGRESS NOT TO PREEMPT THE FIELD.  THAT PURPOSE WAS RESTATED BY THE
HOUSE CONFERENCE REPORT IN EXPLAINING SEC. 14(B).  (FN9)  SENATOR TAFT
IN THE SENATE DEBATES STATED THAT SEC. 14(B) WAS TO CONTINUE THE POLICY
OF THE WAGNER ACT AND AVOID FEDERAL INTERFERENCE WITH STATE LAWS IN
THIS FIELD.  AS TO THE WAGNER ACT HE STATED, "BUT THAT DID NOT IN ANY
WAY PROHIBIT THE ENFORCEMENT OF STATE LAWS WHICH ALREADY PROHIBITED
CLOSED SHOPS."  (FN10)  HE WENT ON TO SAY, "THAT HAS BEEN THE LAW EVER
SINCE THAT TIME.  IT WAS THE LAW OF THE SENATE BILL; AND IN PUTTING IN
THIS EXPRESS PROVISION FROM THE HOUSE BILL, (SEC. 14(B)) WE IN NO WAY
CHANGE THE BILL AS PASSED BY THE SENATE OF THE UNITED STATES."  (FN11) 

IN LIGHT OF THE WORDING OF SEC. 14(B) AND THIS LEGISLATIVE HISTORY,
WE CONCLUDE THAT CONGRESS IN 1947 DID NOT DEPRIVE THE STATES OF ANY AND
ALL POWER TO ENFORCE THEIR LAWS RESTRICTING THE EXECUTION AND
ENFORCEMENT OF UNION-SECURITY AGREEMENTS.  SINCE IT IS PLAIN THAT
CONGRESS LEFT THE STATES FREE TO LEGISLATE IN THAT FIELD, WE CAN ONLY
ASSUME THAT IT INTENDED TO LEAVE UNAFFECTED THE POWER TO ENFORCE THOSE
LAWS.  OTHERWISE, THE RESERVATION WHICH SENATOR TAFT FELT TO BE SO
CRITICAL WOULD BECOME EMPTY AND LARGELY MEANINGLESS. 

AS ALREADY NOTED, UNDER SEC. 8(A)(3) A UNION-SECURITY AGREEMENT IS
PERMISSIBLE, FOR EXAMPLE, IF THE UNION REPRESENTS THE EMPLOYEES AS
PROVIDED IN SEC. 9(A) (SUBJECT TO RESCISSION OF THE AUTHORITY TO MAKE
THE AGREEMENT AS PROVIDED IN SEC. 8(A)(3)).  THOSE ARE FEDERAL
STANDARDS ENTRUSTED BY CONGRESS TO THE LABOR BOARD.  YET EVEN IF THE
UNION-SECURITY AGREEMENT CLEARS ALL FEDERAL HURDLES, THE STATES BY
REASON OF SEC. 14(B) HAVE THE FINAL SAY AND MAY OUTLAW IT.  THERE IS
THUS CONFLICT BETWEEN STATE AND FEDERAL LAW; BUT IT IS A CONFLICT
SANCTIONED BY CONGRESS WITH DIRECTIONS TO GIVE THE RIGHT OF WAY TO
STATE LAWS BARRING THE EXECUTION AND ENFORCEMENT OF UNION-SECURITY
AGREEMENTS.  IT IS ARGUED THAT IF THERE IS A VIOLATION OF A STATE UNION
SECURITY LAW AUTHORIZED BY SEC. 14(B), IT IS A FEDERAL UNFAIR LABOR
PRACTICE AND THAT THE FEDERAL REMEDY IS THE EXCLUSIVE ONE.  IT IS URGED
THAT THAT COURSE IS NECESSARY IF UNIFORMITY IS TO BE ACHIEVED.  BUT
SEC. 14(B) GIVES THE STATES POWER TO OUTLAW EVEN A UNION-SECURITY
AGREEMENT THAT PASSES MUSTER BY FEDERAL STANDARDS.  WHERE CONGRESS
GIVES STATE POLICY THAT DEGREE OF OVERRIDING AUTHORITY, WE ARE
RELUCTANT TO CONCLUDE THAT IT IS NONETHELESS ENFORCEABLE BY THE FEDERAL
AGENCY IN WASHINGTON. 

THIS RESULT ON ITS FACE MAY SEEM TO BE AT WAR WITH SAN DIEGO COUNCIL
V. GARMON, 359 U.S. 236, DECIDED IN 1959, AND HOLDING THAT WHERE ACTION
IS "ARGUABLY SUBJECT TO SEC. 7 OR SEC. 8 OF THE ACT, THE STATES AS WELL
AS THE FEDERAL COURTS MUST DEFER TO THE EXCLUSIVE COMPETENCE OF THE
NATIONAL LABOR RELATIONS BOARD."  ID., AT 245.  IN GARMON A STATE COURT
WAS HELD PRECLUDED BY THE TAFT-HARTLEY ACT FROM AWARDING DAMAGES UNDER
STATE LAW FOR ECONOMIC INJURIES RESULTING FROM PEACEFUL PICKETING OF A
PLANT BY LABOR UNIONS THAT HAD NOT BEEN SELECTED BY A MAJORITY OF THE
EMPLOYEES AS THEIR BARGAINING AGENTS. 

GARMON, HOWEVER, DOES NOT STATE A CONSTITUTIONAL PRINCIPLE; IT MERELY
RATIONALIZES THE PROBLEMS OF COEXISTENCE BETWEEN FEDERAL AND STATE
REGULATORY SCHEMES IN THE FIELD OF LABOR RELATIONS; AND IT DID NOT
PRESENT THE PROBLEMS POSED BY SEC. 14(B), VIZ., WHETHER THE CONGRESS
HAD PRECLUDED STATE ENFORCEMENT OF SELECT STATE LAWS ADOPTED PURSUANT
TO ITS AUTHORITY.  THE PURPOSE OF CONGRESS IS THE ULTIMATE TOUCHSTONE. 
CONGRESS UNDER THE COMMERCE CLAUSE MAY DISPLACE STATE POWER (RICE V.
SANTA FE ELEVATOR CORP., 331 U.S. 218, 234-236; SAN DIEGO COUNCIL V.
GARMON, SUPRA) OR IT MAY EVEN BY SILENCE INDICATE A PURPOSE TO LET
STATE REGULATION BE IMPOSED ON THE FEDERAL REGIME.  SEE FLORIDA AVOCADO
GROWERS V. PAUL, 373 U.S. 132, 141-143. 

THE COURT IN ALGOMA PLYWOOD CO. V. WISCONSIN BOARD, 336 U.S. 301,
314, STATED THAT "SEC.  14(B) WAS INCLUDED TO FORESTALL THE INFERENCE
THAT FEDERAL POLICY WAS TO BE EXCLUSIVE" ON THIS MATTER OF UNION
SECURITY AGREEMENTS.  IN THAT CASE A STATE AGENCY ISSUED A CEASE-AND
DESIST ORDER AGAINST AN EMPLOYER FROM GIVING EFFECT TO A MAINTENANCE OF
MEMBERSHIP AGREEMENT AND ORDERED AN EMPLOYEE REINSTATED AND MADE WHOLE
FOR ANY LOSS OF PAY SUFFERED.  IT WAS URGED THAT SINCE SEC. 10(A) OF
THE WAGNER ACT GIVES THE FEDERAL BOARD "EXCLUSIVE" POWER TO PREVENT
"ANY UNFAIR LABOR PRACTICE," STATE POWER IN THE FEDERAL COMMERCE FIELD
WAS DISPLACED.  ID., AT 305.  STATE POWER, HOWEVER, WAS HELD TO EXIST
ALONGSIDE OF FEDERAL POWER BECAUSE OF THE SPECIAL LEGISLATIVE HISTORY
OF THE UNION-SECURITY PROVISIONS OF THE ACT.  THE DISSENT DID NOT DENY
THAT; RATHER IT PROCEEDED ON THE GROUND THAT, SINCE THE DISPUTE AROSE
PRIOR TO THE 1947 ACT, THE CASE WAS TO BE JUDGED BY THE PRE-1947
CONSTRUCTION OF SEC. 8(A)(3), AS TO WHICH THE MAJORITY AND MINORITY OF
THE COURT WERE IN DISAGREEMENT. 

IT ALSO WAS ARGUED IN ALGOMA PLYWOOD CO. THAT SEC. 14(B) DISPLACED
STATE LAW THAT "REGULATES" THE UNION SHOP.  THE COURT SAID: 

"BUT IF THERE COULD BE ANY DOUBT THAT THE LANGUAGE OF THE SECTION
MEANS THAT THE ACT SHALL NOT BE CONSTRUED TO AUTHORIZE ANY
'APPLICATION' OF A UNION-SECURITY CONTRACT, SUCH AS DISCHARGING AN
EMPLOYEE, WHICH UNDER THE CIRCUMSTANCES 'IS PROHIBITED' BY THE STATE,
THE LEGISLATIVE HISTORY OF THE SECTION WOULD DISPEL IT."  336 U.S., AT
314. 

CONGRESS, IN OTHER WORDS, CHOSE TO ABANDON ANY SEARCH FOR UNIFORMITY
IN DEALING WITH THE PROBLEMS OF STATE LAWS BARRING THE EXECUTION AND
APPLICATION OF AGREEMENTS AUTHORIZED BY SEC. 14(B) AND DECIDED TO
SUFFER A MEDLEY OF ATTITUDES AND PHILOSOPHIES ON THE SUBJECT. 

AS A RESULT OF SEC. 14(B), THERE WILL ARISE A WIDE VARIETY OF
SITUATIONS PRESENTING PROBLEMS OF THE ACCOMMODATION OF STATE AND
FEDERAL JURISDICTION IN THE UNION-SECURITY FIELD.  AS NOTED, ALGOMA
PLYWOOD CO. V. WISCONSIN BOARD, SUPRA, UPHELD THE RIGHT OF A STATE TO
REINSTATE WITH BACK PAY AN EMPLOYEE DISCHARGED IN VIOLATION OF A STATE
UNION-SECURITY LAW.  ON THE OTHER HAND, PICKETING IN ORDER TO GET AN
EMPLOYER TO EXECUTE AN AGREEMENT TO HIRE ALL UNION LABOR IN VIOLATION
OF A STATE UNION-SECURITY STATUTE LIES EXCLUSIVELY IN THE FEDERAL
DOMAIN (LOCAL UNION 429 V. FARNSWORTH & CHAMBERS CO., 353 U.S. 969, AND
LOCAL NO. 438 V. CURRY, 371 U.S. 542), BECAUSE STATE POWER, RECOGNIZED
BY SEC. 14(B), BEGINS ONLY WITH ACTUAL NEGOTIATION AND EXECUTION OF THE
TYPE OF AGREEMENT DESCRIBED BY SEC. 14(B).  ABSENT SUCH AN AGREEMENT,
CONDUCT ARGUABLY AN UNFAIR LABOR PRACTICE WOULD BE A MATTER FOR THE
NATIONAL LABOR RELATIONS BOARD UNDER GARMON. 

WE HELD IN PLUMBERS' UNION V. BORDEN, 373 U.S. 690, AND IN IRON
WORKERS V. PERKO, 373 U.S. 701, THAT GARMON PREEMPTED THE FIELD WHERE
EMPLOYEES WERE SUING UNIONS FOR DAMAGES ARISING OUT OF PRACTICES THAT
ARGUABLY WERE UNFAIR LABOR PRACTICES SUBJECT TO REGULATION BY THE
NATIONAL LABOR RELATIONS BOARD.  THOSE CASES, HOWEVER, DID NOT PRESENT
FOR DECISION ANY PROBLEM UNDER SEC. 14(B), THOUGH THE QUESTION WAS
TENDERED IN THE BORDEN CASE BUT NOT PASSED ON EITHER BY THE STATE
TRIBUNAL OR BY US.  373 U.S., AT 692, N. 2. 

THE RELIEF PRAYED FOR BELOW IS WITHIN THE AMBIT OF ALGOMA PLYWOOD CO.
V. WISCONSIN BOARD, SUPRA, AND THE REGULATORY SCHEME THAT CONGRESS
DESIGNED WHEN IT ADOPTED SEC. 14(B).  AFFIRMED. 

FN1  SECTION 8(A)(3) READS AS FOLLOWS: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER  ...  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, THAT NOTHING IN THIS ACT, OR IN ANY
OTHER STATUTE OF THE UNITED STATES, SHALL PRECLUDE AN EMPLOYER FROM
MAKING AN AGREEMENT WITH A LABOR ORGANIZATION (NOT ESTABLISHED,
MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN SECTION 8(A) OF THIS
ACT AS AN UNFAIR LABOR PRACTICE) TO REQUIRE AS A CONDITION OF
EMPLOYMENT MEMBERSHIP THEREIN ON OR AFTER THE THIRTIETH DAY FOLLOWING
THE BEGINNING OF SUCH EMPLOYMENT OR THE EFFECTIVE DATE OF SUCH
AGREEMENT, WHICHEVER IS THE LATER, (I) IF SUCH LABOR ORGANIZATION IS
THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED IN SECTION 9(A), IN THE
APPROPRIATE COLLECTIVE-BARGAINING UNIT COVERED BY SUCH AGREEMENT WHEN
MADE; AND (II) UNLESS FOLLOWING AN ELECTION HELD AS PROVIDED IN SECTION
9(E) WITHIN ONE YEAR PRECEDING THE EFFECTIVE DATE OF SUCH AGREEMENT,
THE BOARD SHALL HAVE CERTIFIED THAT AT LEAST A MAJORITY OF THE
EMPLOYEES ELIGIBLE TO VOTE IN SUCH ELECTION HAVE VOTED TO RESCIND THE
AUTHORITY OF SUCH LABOR ORGANIZATION TO MAKE SUCH AN AGREEMENT:
PROVIDED FURTHER, THAT NO EMPLOYER SHALL JUSTIFY ANY DISCRIMINATION
AGAINST AN EMPLOYEE FOR NONMEMBERSHIP IN A LABOR ORGANIZATION (A) IF HE
HAS REASONABLE GROUNDS FOR BELIEVING THAT SUCH MEMBERSHIP WAS NOT
AVAILABLE TO THE EMPLOYEE ON THE SAME TERMS AND CONDITIONS GENERALLY
APPLICABLE TO OTHER MEMBERS, OR (B) IF HE HAS REASONABLE GROUNDS FOR
BELIEVING THAT MEMBERSHIP WAS DENIED OR TERMINATED FOR REASONS OTHER
THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE PERIODIC DUES AND THE
INITIATION FEES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR
RETAINING MEMBERSHIP."  61 STAT. 140-141, AS AMENDED, 65 STAT. 601, 73
STAT. 525, 29 U.S.C. (SUPP. IV) SEC. 158(A)(3).    FN2  AS STATED IN
THE SENATE REPORT ON THE WAGNER ACT: 

"  ...  THE BILL DOES NOTHING TO FACILITATE CLOSED-SHOP AGREEMENTS OR
TO MAKE THEM LEGAL IN ANY STATE WHERE THEY MAY BE ILLEGAL; IT DOES NOT
INTERFERE WITH THE STATUS QUO ON THIS DEBATABLE SUBJECT BUT LEAVES THE
WAY OPEN TO SUCH AGREEMENTS AS MIGHT NOW LEGALLY BE CONSUMMATED  ...
."  S. REP. NO. 573, 74TH CONG., 1ST SESS., PP. 11-12.  PRIOR TO
ENACTMENT OF THE WAGNER ACT IN 1935, THE STATES HAD UNQUESTIONED POWER
TO REGULATE OR PROHIBIT THE CLOSED SHOP AND OTHER FORMS OF UNION
SECURITY AGREEMENTS.  WHILE SEC. 8(3) OF THE WAGNER ACT SAID "NOTHING
IN THIS ACT,  ...  OR IN ANY OTHER STATUTE OF THE UNITED STATES, SHALL
PRECLUDE" SUCH AGREEMENTS, IT LEFT OPEN THE POWER OF A STATE TO
"PRECLUDE" THEM. 

FN3  NOTE 1, SUPRA. 

FN4  SEE STATE LAWS REGULATING UNION-SECURITY CONTRACTS, 21 L.R.R.M.
66. 

FN5  H.R. REP. NO. 245, 80TH CONG., 1ST SESS., P. 34; S. REP. NO.
105, 80TH CONG., 1ST SESS., P. 6. 

FN6  NOTE 1, SUPRA; H.R. REP. NO. 245, 80TH CONG., 1ST SESS., P. 9. 
AS TO THE DIFFERENCES BETWEEN AGREEMENTS FOR "CLOSED" SHOPS, "UNION"
SHOPS, AND RELATED DEVICES, SEE LINCOLN UNION V. NORTHWESTERN CO.,
SUPRA, AT 528, N. 2; AMERICAN FEDERATION OF LABOR V. AMERICAN SASH CO.,
335 U.S. 538, 550-553. 

FN7  SECTION 13 OF H.R. 3020, 80TH CONG., 1ST SESS., 1 LEG.  HIST. 
OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 207-208. 

FN8  "SINCE BY THE LABOR ACT CONGRESS PREEMPTS THE FIELD THAT THE ACT
COVERS INSOFAR AS COMMERCE WITHIN THE MEANING OF THE ACT IS CONCERNED,
AND SINCE WHEN THIS REPORT IS WRITTEN THE COURTS HAVE NOT FINALLY RULED
UPON THE EFFECT UPON EMPLOYEES OF EMPLOYERS ENGAGED IN COMMERCE OF
STATE LAWS DEALING WITH COMPULSORY UNIONISM, THE COMMITTEE HAS PROVIDED
EXPRESSLY IN SECTION 13 THAT LAWS AND CONSTITUTIONAL PROVISIONS OF ANY
STATE THAT RESTRICT THE RIGHT OF EMPLOYERS TO REQUIRE EMPLOYEES TO
BECOME OR REMAIN MEMBERS OF LABOR ORGANIZATIONS ARE VALID,
NOTWITHSTANDING ANY PROVISION OF THE NATIONAL LABOR RELATIONS ACT.  IN
REPORTING THE BILL THAT BECAME THE NATIONAL LABOR RELATIONS ACT, THE
SENATE COMMITTEE TO WHICH THE BILL HAD BEEN REFERRED DECLARED THAT THE
ACT WOULD NOT INVALIDATE ANY SUCH STATE LAW OR CONSTITUTIONAL
PROVISION.  THE NEW SECTION 13 IS CONSISTENT WITH THIS VIEW."  H.R.
REP. NO. 245, 80TH CONG., 1ST SESS., P. 44. 

FN9  H.R. REP. NO. 510, 80TH CONG., 1ST SESS., P. 60: 

"UNDER THE HOUSE BILL THERE WAS INCLUDED A NEW SECTION 13 OF THE
NATIONAL LABOR RELATIONS ACT TO ASSURE THAT NOTHING IN THE ACT WAS TO
BE CONSTRUED AS AUTHORIZING ANY CLOSED SHOP, UNION SHOP, MAINTENANCE OF
MEMBERSHIP, OR OTHER FORM OF COMPULSORY UNIONISM AGREEMENT IN ANY STATE
WHERE THE EXECUTION OF SUCH AGREEMENT WOULD BE CONTRARY TO STATE LAW. 
MANY STATES HAVE ENACTED LAWS OR ADOPTED CONSTITUTIONAL PROVISIONS TO
MAKE ALL FORMS OF COMPULSORY UNIONISM IN THOSE STATES ILLEGAL.  IT WAS
NEVER THE INTENTION OF THE NATIONAL LABOR RELATIONS ACT  ...  TO
PREEMPT THE FIELD IN THIS REGARD SO AS TO DEPRIVE THE STATES OF THEIR
POWERS TO PREVENT COMPULSORY UNIONISM.  NEITHER THE SO-CALLED 'CLOSED
SHOP' PROVISO IN SECTION 8(3) OF THE EXISTING ACT NOR THE UNION SHOP
AND MAINTENANCE OF MEMBERSHIP PROVISO IN SECTION 8(A)(3) OF THE
CONFERENCE AGREEMENT COULD BE SAID TO AUTHORIZE ARRANGEMENTS OF THIS
SORT IN STATES WHERE SUCH ARRANGEMENTS WERE CONTRARY TO THE STATE
POLICY.  TO MAKE CERTAIN THAT THERE SHOULD BE NO QUESTION ABOUT THIS,
IN SECTION 14(B), CONTAINS A PROVISION HAVING THE SAME EFFECT." 

FN10  93 CONG. REC. 6520, 2 LEG.  HIST.  OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, 1597. 

FN11  IBID. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















DURFEE V. DUKE 375 U.S. 106 


NO. 37.  ARGUED OCTOBER 24, 1963.  - DECIDED DECEMBER 2, 1963.  - 308
F.2D 209, REVERSED. 


PETITIONERS SUED RESPONDENT IN A NEBRASKA STATE COURT TO QUIET TITLE
TO CERTAIN LAND ON THE MISSOURI RIVER, WHICH IS THE BOUNDARY BETWEEN
NEBRASKA AND MISSOURI.  THE NEBRASKA COURT HAD JURISDICTION OVER THE
SUBJECT MATTER ONLY IF THE LAND WAS IN NEBRASKA, AND THAT DEPENDED ON
WHETHER A SHIFT IN THE RIVER'S COURSE HAD BEEN CAUSED BY AVULSION OR
ACCRETION.  RESPONDENT APPEARED IN THE NEBRASKA COURT AND FULLY
LITIGATED THE ISSUES, INCLUDING THAT AS TO THE COURT'S JURISDICTION
OVER THE SUBJECT MATTER.  THE COURT FOUND IN FAVOR OF PETITIONERS AND
ORDERED THAT TITLE TO THE LAND BE QUIETED IN THEM.  THE NEBRASKA
SUPREME COURT AFFIRMED, FINDING SPECIFICALLY THAT THE RULE OF AVULSION
WAS APPLICABLE, THAT THE LAND WAS IN NEBRASKA, THAT THE NEBRASKA COURTS
HAD JURISDICTION OVER THE SUBJECT MATTER AND THAT TITLE TO THE LAND WAS
IN PETITIONERS.  SUBSEQUENTLY, RESPONDENT SUED IN A MISSOURI STATE
COURT TO QUIET TITLE TO THE SAME LAND, CLAIMING THAT IT WAS IN
MISSOURI.  THE CASE WAS REMOVED TO A FEDERAL DISTRICT COURT.  HELD:
THE JUDGMENT OF THE NEBRASKA SUPREME COURT WAS RES JUDICATA AS TO ALL
ISSUES, INCLUDING THE ISSUE OF JURISDICTION, AND IT WAS BINDING ON THE
DISTRICT COURT UNDER THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION AND THE FEDERAL STATUTE ENACTED TO IMPLEMENT IT.  PP. 107
116. 

DURFEE ET UX. V. DUKE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES CONSTITUTION REQUIRES THAT "FULL FAITH AND CREDIT
SHALL BE GIVEN IN EACH STATE TO THE  ...  JUDICIAL PROCEEDINGS OF EVERY
OTHER STATE."  (FN1)  THE CASE BEFORE US PRESENTS QUESTIONS ARISING
UNDER THIS CONSTITUTIONAL PROVISION AND UNDER THE FEDERAL STATUTE
ENACTED TO IMPLEMENT IT.  (FN2) 

IN 1956 THE PETITIONERS BROUGHT AN ACTION AGAINST THE RESPONDENT IN A
NEBRASKA COURT TO QUIET TITLE TO CERTAIN BOTTOM LAND SITUATED ON THE
MISSOURI RIVER.  THE MAIN CHANNEL OF THAT RIVER FORMS THE BOUNDARY
BETWEEN THE STATES OF NEBRASKA AND MISSOURI.  THE NEBRASKA COURT HAD
JURISDICTION OVER THE SUBJECT MATTER OF THE CONTROVERSY ONLY IF THE
LAND IN QUESTION WAS IN NEBRASKA.  WHETHER THE LAND WAS NEBRASKA LAND
DEPENDED ENTIRELY UPON A FACTUAL QUESTION - WHETHER A SHIFT IN THE
RIVER'S COURSE HAD BEEN CAUSED BY AVULSION OR ACCRETION.  (FN3)  THE
RESPONDENT APPEARED IN THE NEBRASKA COURT AND THROUGH COUNSEL FULLY
LITIGATED THE ISSUES, EXPLICITLY CONTESTING THE COURT'S JURISDICTION
OVER THE SUBJECT MATTER OF THE CONTROVERSY.  (FN4)  AFTER A HEARING THE
COURT FOUND THE ISSUES IN FAVOR OF THE PETITIONERS AND ORDERED THAT
TITLE TO THE LAND BE QUIETED IN THEM.  THE RESPONDENT APPEALED, AND THE
SUPREME COURT OF NEBRASKA AFFIRMED THE JUDGMENT AFTER A TRIAL DE NOVO
ON THE RECORD MADE IN THE LOWER COURT.  THE STATE SUPREME COURT
SPECIFICALLY FOUND THAT THE RULE OF AVULSION WAS APPLICABLE, THAT THE
LAND IN QUESTION WAS IN NEBRASKA, THAT THE NEBRASKA COURTS THEREFORE
HAD JURISDICTION OF THE SUBJECT MATTER OF THE LITIGATION, AND THAT
TITLE TO THE LAND WAS IN THE PETITIONERS.  DURFEE V. KEIFFER, 168 NEB.
272, 95 N.W.2D 618.  THE RESPONDENT DID NOT PETITION THIS COURT FOR A
WRIT OF CERTIORARI TO REVIEW THAT JUDGMENT. 

TWO MONTHS LATER THE RESPONDENT FILED A SUIT AGAINST THE PETITIONERS
IN A MISSOURI COURT TO QUIET TITLE TO THE SAME LAND.  HER COMPLAINT
ALLEGED THAT THE LAND WAS IN MISSOURI.  THE SUIT WAS REMOVED TO A
FEDERAL DISTRICT COURT BY REASON OF DIVERSITY OF CITIZENSHIP.  THE
DISTRICT COURT AFTER HEARING EVIDENCE EXPRESSED THE VIEW THAT THE LAND
WAS IN MISSOURI, BUT HELD THAT ALL THE ISSUES HAD BEEN ADJUDICATED AND
DETERMINED IN THE NEBRASKA LITIGATION, AND THAT THE JUDGMENT OF THE
NEBRASKA SUPREME COURT WAS RES JUDICATA AND "IS NOW BINDING UPON THIS
COURT."  THE COURT OF APPEALS REVERSED, HOLDING THAT THE DISTRICT COURT
WAS NOT REQUIRED TO GIVE FULL FAITH AND CREDIT TO THE NEBRASKA
JUDGMENT, AND THAT NORMAL RES JUDICATA PRINCIPLES WERE NOT APPLICABLE
BECAUSE THE CONTROVERSY INVOLVED LAND AND A COURT IN MISSOURI WAS
THEREFORE FREE TO RETRY THE QUESTION OF THE NEBRASKA COURT'S
JURISDICTION OVER THE SUBJECT MATTER.  308 F.2D 209.  WE GRANTED
CERTIORARI TO CONSIDER A QUESTION IMPORTANT TO THE ADMINISTRATION OF
JUSTICE IN OUR FEDERAL SYSTEM.  371 U.S. 946.  FOR THE REASONS THAT
FOLLOW, WE REVERSE THE JUDGMENT BEFORE US. 

THE CONSTITUTIONAL COMMAND OF FULL FAITH AND CREDIT, AS IMPLEMENTED
BY CONGRESS, REQUIRES THAT "JUDICIAL PROCEEDINGS ...  SHALL HAVE THE
SAME FULL FAITH AND CREDIT IN EVERY COURT WITHIN THE UNITED STATES  ...
AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF SUCH STATE  ...  FROM
WHICH THEY ARE TAKEN."  (FN5)  FULL FAITH AND CREDIT THUS GENERALLY
REQUIRES EVERY STATE TO GIVE TO A JUDGMENT AT LEAST THE RES JUDICATA
EFFECT WHICH THE JUDGMENT WOULD BE ACCORDED IN THE STATE WHICH RENDERED
IT.  "BY THE CONSTITUTIONAL PROVISION FOR FULL FAITH AND CREDIT, THE
LOCAL DOCTRINES OF RES JUDICATA, SPEAKING GENERALLY, BECOME A PART OF
NATIONAL JURISPRUDENCE, AND THEREFORE FEDERAL QUESTIONS COGNIZABLE
HERE."  RILEY V. NEW YORK TRUST CO., 315 U.S. 343, 349. 

IT IS NOT QUESTIONED THAT THE NEBRASKA COURTS WOULD GIVE FULL RES
JUDICATA EFFECT TO THE NEBRASKA JUDGMENT QUIETING TITLE IN THE
PETITIONERS.  (FN6)  IT IS THE RESPONDENT'S POSITION, HOWEVER, THAT
WHATEVER EFFECT THE NEBRASKA COURTS MIGHT GIVE TO THE NEBRASKA
JUDGMENT, THE FEDERAL COURT IN MISSOURI WAS FREE INDEPENDENTLY TO
DETERMINE WHETHER THE NEBRASKA COURT IN FACT HAD JURISDICTION OVER THE
SUBJECT MATTER, I.E., WHETHER THE LAND IN QUESTION WAS ACTUALLY IN
NEBRASKA. 

IN SUPPORT OF THIS POSITION THE RESPONDENT RELIES UPON THE MANY
DECISIONS OF THIS COURT WHICH HAVE HELD THAT A JUDGMENT OF A COURT IN
ONE STATE IS CONCLUSIVE UPON THE MERITS IN A COURT IN ANOTHER STATE
ONLY IF THE COURT IN THE FIRST STATE HAD POWER TO PASS ON THE MERITS -
HAD JURISDICTION, THAT IS, TO RENDER THE JUDGMENT.  AS MR. JUSTICE
BRADLEY STATED THE DOCTRINE IN THE LEADING CASE OF THOMPSON V. WHITMAN,
18 WALL.  457, "WE THINK IT CLEAR THAT THE JURISDICTION OF THE COURT BY
WHICH A JUDGMENT IS RENDERED IN ANY STATE MAY BE QUESTIONED IN A
COLLATERAL PROCEEDING IN ANOTHER STATE, NOTWITHSTANDING THE PROVISION
OF THE FOURTH ARTICLE OF THE CONSTITUTION AND THE LAW OF 1790, AND
NOTWITHSTANDING THE AVERMENTS CONTAINED IN THE RECORD OF THE JUDGMENT
ITSELF."  18 WALL., AT 469.  THE PRINCIPLE HAS BEEN RESTATED AND
APPLIED IN A VARIETY OF CONTEXTS.  (FN7) 

HOWEVER, WHILE IT IS ESTABLISHED THAT A COURT IN ONE STATE, WHEN
ASKED TO GIVE EFFECT TO THE JUDGMENT OF A COURT IN ANOTHER STATE, MAY
CONSTITUTIONALLY INQUIRE INTO THE FOREIGN COURT'S JURISDICTION TO
RENDER THAT JUDGMENT, THE MODERN DECISIONS OF THIS COURT HAVE CAREFULLY
DELINEATED THE PERMISSIBLE SCOPE OF SUCH AN INQUIRY.  FROM THESE
DECISIONS THERE EMERGES THE GENERAL RULE THAT A JUDGMENT IS ENTITLED TO
FULL FAITH AND CREDIT - EVEN AS TO QUESTIONS OF JURISDICTION - WHEN THE
SECOND COURT'S INQUIRY DISCLOSES THAT THOSE QUESTIONS HAVE BEEN FULLY
AND FAIRLY LITIGATED AND FINALLY DECIDED IN THE COURT WHICH RENDERED
THE ORIGINAL JUDGMENT. 

WITH RESPECT TO QUESTIONS OF JURISDICTION OVER THE PERSON, (FN8) THIS
PRINCIPLE WAS UNAMBIGUOUSLY ESTABLISHED IN BALDWIN V. IOWA STATE
TRAVELING MEN'S ASSN., 283 U.S. 522.  THERE IT WAS HELD THAT A FEDERAL
COURT IN IOWA MUST GIVE BINDING EFFECT TO THE JUDGMENT OF A FEDERAL
COURT IN MISSOURI DESPITE THE CLAIM THAT THE ORIGINAL COURT DID NOT
HAVE JURISDICTION OVER THE DEFENDANT'S PERSON, ONCE IT WAS SHOWN TO THE
COURT IN IOWA THAT THAT QUESTION HAD BEEN FULLY LITIGATED IN THE
MISSOURI FORUM.  "PUBLIC POLICY," SAID THE COURT, "DICTATES THAT THERE
BE AN END OF LITIGATION; THAT THOSE WHO HAVE CONTESTED AN ISSUE SHALL
BE BOUND BY THE RESULT OF THE CONTEST, AND THAT MATTERS ONCE TRIED
SHALL BE CONSIDERED FOREVER SETTLED AS BETWEEN THE PARTIES.  WE SEE NO
REASON WHY THIS DOCTRINE SHOULD NOT APPLY IN EVERY CASE WHERE ONE
VOLUNTARILY APPEARS, PRESENTS HIS CASE AND IS FULLY HEARD, AND WHY HE
SHOULD NOT, IN THE ABSENCE OF FRAUD, BE THEREAFTER CONCLUDED BY THE
JUDGMENT OF THE TRIBUNAL TO WHICH HE HAS SUBMITTED HIS CAUSE."  283
U.S., AT 525-526.  (FN9) 

FOLLOWING THE BALDWIN CASE, THIS COURT SOON MADE CLEAR IN A SERIES OF
DECISIONS THAT THE GENERAL RULE IS NO DIFFERENT WHEN THE CLAIM IS MADE
THAT THE ORIGINAL FORUM DID NOT HAVE JURISDICTION OVER THE SUBJECT
MATTER.  DAVIS V. DAVIS, 305 U.S. 32; STOLL V. GOTTLIEB, 305 U.S. 165;
(FN10) TREINIES V. SUNSHINE MINING CO., 308 U.S. 66; SHERRER V.
SHERRER, 334 U.S. 343.  (FN11)  IN EACH OF THESE CASES THE CLAIM WAS
MADE THAT A COURT, WHEN ASKED TO ENFORCE THE JUDGMENT OF ANOTHER FORUM,
WAS FREE TO RETRY THE QUESTION OF THAT FORUM'S JURISDICTION OVER THE
SUBJECT MATTER.  IN EACH CASE THIS COURT HELD THAT SINCE THE QUESTION
OF SUBJECT-MATTER JURISDICTION HAD BEEN FULLY LITIGATED IN THE ORIGINAL
FORUM, THE ISSUE COULD NOT BE RETRIED IN A SUBSEQUENT ACTION BETWEEN
THE PARTIES. 

IN THE DAVIS CASE IT WAS HELD THAT THE COURTS OF THE DISTRICT OF
COLUMBIA WERE REQUIRED TO GIVE FULL FAITH AND CREDIT TO A DECREE OF
ABSOLUTE DIVORCE RENDERED IN VIRGINIA, DESPITE THE CLAIM THAT THE
VIRGINIA COURT HAD LACKED JURISDICTION BECAUSE THE PLAINTIFF IN THE
VIRGINIA PROCEEDINGS HAD NOT BEEN DOMICILED IN THAT STATE.  IN THE
COURSE OF THE OPINION THE COURT STATED: 

"AS TO PETITIONER'S DOMICIL FOR DIVORCE AND HIS STANDING TO INVOKE
JURISDICTION OF THE VIRGINIA COURT, ITS FINDING THAT HE WAS A BONA FIDE
RESIDENT OF THAT STATE FOR THE REQUIRED TIME IS BINDING UPON RESPONDENT
IN THE COURTS OF THE DISTRICT.  SHE MAY NOT SAY THAT HE WAS NOT
ENTITLED TO SUE FOR DIVORCE IN THE STATE COURT, FOR SHE APPEARED THERE
AND BY PLEA PUT IN ISSUE HIS ALLEGATION AS TO DOMICIL, INTRODUCED
EVIDENCE TO SHOW IT FALSE, TOOK EXCEPTIONS TO THE COMMISSIONER'S
REPORT, AND SOUGHT TO HAVE THE COURT SUSTAIN THEM AND UPHOLD HER PLEA. 
PLAINLY, THE DETERMINATION OF THE DECREE UPON THAT POINT IS EFFECTIVE
FOR ALL PURPOSES IN THIS LITIGATION."  305 U.S., AT 40. 

THIS DOCTRINE OF JURISDICTIONAL FINALITY WAS APPLIED EVEN MORE
UNEQUIVOCALLY IN TREINIES, SUPRA, INVOLVING TITLE TO PERSONAL PROPERTY,
AND IN SHERRER, SUPRA, INVOLVING, LIKE DAVIS, RECOGNITION OF A FOREIGN
DIVORCE DECREE.  IN TREINIES, THE RULE WAS SUCCINCTLY STATED:  "ONE
TRIAL OF AN ISSUE IS ENOUGH.  'THE PRINCIPLES OF RES JUDICATA APPLY TO
QUESTIONS OF JURISDICTION AS WELL AS TO OTHER ISSUES,' AS WELL TO
JURISDICTION OF THE SUBJECT MATTER AS OF THE PARTIES."  308 U.S., AT
78. 

THE REASONS FOR SUCH A RULE ARE APPARENT.  IN THE WORDS OF THE
COURT'S OPINION IN STOLL V. GOTTLIEB, SUPRA, "WE SEE NO REASON WHY A
COURT, IN THE ABSENCE OF AN ALLEGATION OF FRAUD IN OBTAINING THE
JUDGMENT, SHOULD EXAMINE AGAIN THE QUESTION WHETHER THE COURT MAKING
THE EARLIER DETERMINATION ON AN ACTUAL CONTEST OVER JURISDICTION
BETWEEN THE PARTIES, DID HAVE JURISDICTION OF THE SUBJECT MATTER OF THE
LITIGATION  ...  .  COURTS TO DETERMINE THE RIGHTS OF PARTIES ARE AN
INTEGRAL PART OF OUR SYSTEM OF GOVERNMENT.  IT IS JUST AS IMPORTANT
THAT THERE SHOULD BE A PLACE TO END AS THAT THERE SHOULD BE A PLACE TO
BEGIN LITIGATION.  AFTER A PARTY HAS HIS DAY IN COURT, WITH OPPORTUNITY
TO PRESENT HIS EVIDENCE AND HIS VIEW OF THE LAW, A COLLATERAL ATTACK
UPON THE DECISION AS TO JURISDICTION THERE RENDERED MERELY RETRIES THE
ISSUE PREVIOUSLY DETERMINED.  THERE IS NO REASON TO EXPECT THAT THE
SECOND DECISION WILL BE MORE SATISFACTORY THAN THE FIRST."  305 U.S.,
AT 172. 

TO BE SURE, THE GENERAL RULE OF FINALITY OF JURISDICTIONAL
DETERMINATIONS IS NOT WITHOUT EXCEPTIONS.  DOCTRINES OF FEDERAL PRE
EMPTION OR SOVEREIGN IMMUNITY MAY IN SOME CONTEXTS BE CONTROLLING. 
KALB V. FEUERSTEIN, 308 U.S. 433; UNITED STATES V. UNITED STATES
FIDELITY CO., 309 U.S. 506.  (FN12)  BUT NO SUCH OVERRIDING
CONSIDERATIONS ARE PRESENT HERE.  WHILE THIS COURT HAS NOT BEFORE HAD
OCCASION TO CONSIDER THE APPLICABILITY OF THE RULE OF DAVIS, STOLL,
TREINIES, AND SHERRER TO A CASE INVOLVING REAL PROPERTY, WE CAN DISCERN
NO REASON WHY THE RULE SHOULD NOT BE FULLY APPLICABLE.  (FN13) 

IT IS ARGUED THAT AN EXCEPTION TO THIS RULE OF JURISDICTIONAL
FINALITY SHOULD BE MADE WITH RESPECT TO CASES INVOLVING REAL PROPERTY
BECAUSE OF THIS COURT'S EMPHATIC EXPRESSIONS OF THE DOCTRINE THAT
COURTS OF ONE STATE ARE COMPLETELY WITHOUT JURISDICTION DIRECTLY TO
AFFECT TITLE TO LAND IN OTHER STATES.  (FN14)  THIS ARGUMENT IS WIDE OF
THE MARK.  COURTS OF ONE STATE ARE EQUALLY WITHOUT JURISDICTION TO
DISSOLVE THE MARRIAGES OF THOSE DOMICILED IN OTHER STATES.  BUT THE
LOCATION OF LAND, LIKE THE DOMICILE OF A PARTY TO A DIVORCE ACTION, IS
A MATTER "TO BE RESOLVED BY JUDICIAL DETERMINATION."  SHERRER V.
SHERRER, 334 U.S., AT 349.  THE QUESTION REMAINS WHETHER, ONCE THE
MATTER HAS BEEN FULLY LITIGATED AND JUDICIALLY DETERMINED, IT CAN BE
RETRIED IN ANOTHER STATE IN LITIGATION BETWEEN THE SAME PARTIES.  UPON
THE REASON AND AUTHORITY OF THE CASES WE HAVE DISCUSSED, IT IS CLEAR
THAT THE ANSWER MUST BE IN THE NEGATIVE. 

IT IS TO BE EMPHASIZED THAT ALL THAT WAS ULTIMATELY DETERMINED IN THE
NEBRASKA LITIGATION WAS TITLE TO THE LAND IN QUESTION AS BETWEEN THE
PARTIES TO THE LITIGATION THERE.  NOTHING THERE DECIDED, AND NOTHING
THAT COULD BE DECIDED IN LITIGATION BETWEEN THE SAME PARTIES OR THEIR
PRIVIES IN MISSOURI, COULD BIND EITHER MISSOURI OR NEBRASKA WITH
RESPECT TO ANY CONTROVERSY THEY MIGHT HAVE, NOW OR IN THE FUTURE, AS TO
THE LOCATION OF THE BOUNDARY BETWEEN THEM, OR AS TO THEIR RESPECTIVE
SOVEREIGNTY OVER THE LAND IN QUESTION.  FOWLER V. LINDSEY, 3 DALL. 
411; NEW YORK V. CONNECTICUT, 4 DALL.  1; LAND V. DOLLAR, 330 U.S. 731,
736-737.  EITHER STATE MAY AT ANY TIME PROTECT ITS INTEREST BY
INITIATING INDEPENDENT JUDICIAL PROCEEDINGS HERE.  CF. MISSOURI V.
NEBRASKA, 196 U.S. 23.  (FN15)

FOR THE REASONS STATED, WE HOLD IN THIS CASE THAT THE FEDERAL COURT
IN MISSOURI HAD THE POWER AND, UPON PROPER AVERMENTS, THE DUTY TO
INQUIRE INTO THE JURISDICTION OF THE NEBRASKA COURTS TO RENDER THE
DECREE QUIETING TITLE TO THE LAND IN THE PETITIONERS.  WE FURTHER HOLD
THAT WHEN THAT INQUIRY DISCLOSED, AS IT DID, THAT THE JURISDICTIONAL
ISSUES HAD BEEN FULLY AND FAIRLY LITIGATED BY THE PARTIES AND FINALLY
DETERMINED IN THE NEBRASKA COURTS, THE FEDERAL COURT IN MISSOURI WAS
CORRECT IN RULING THAT FURTHER INQUIRY WAS PRECLUDED.  ACCORDINGLY THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THAT OF THE DISTRICT
COURT IS AFFIRMED.  IT IS SO ORDERED.    FN1  "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."  U.S. CONST., ART. IV, SEC. 1. 

FN2  "THE ACTS OF THE LEGISLATURE OF ANY STATE, TERRITORY, OR
POSSESSION OF THE UNITED STATES, OR COPIES THEREOF, SHALL BE
AUTHENTICATED BY AFFIXING THE SEAL OF SUCH STATE, TERRITORY OR
POSSESSION THERETO. 

"THE RECORDS AND JUDICIAL PROCEEDINGS OF ANY COURT OF ANY SUCH STATE,
TERRITORY OR POSSESSION, OR COPIES THEREOF, SHALL BE PROVED OR ADMITTED
IN OTHER COURTS WITHIN THE UNITED STATES AND ITS TERRITORIES AND
POSSESSIONS BY THE ATTESTATION OF THE CLERK AND SEAL OF THE COURT
ANNEXED, IF A SEAL EXISTS, TOGETHER WITH A CERTIFICATE OF A JUDGE OF
THE COURT THAT THE SAID ATTESTATION IS IN PROPER FORM. 

"SUCH ACTS, RECORDS AND JUDICIAL PROCEEDINGS OR COPIES THEREOF, SO
AUTHENTICATED, 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."  ACT OF JUNE 25, 1948, C. 646,
62 STAT. 947, 28 U.S.C. SEC. 1738. 

THE PROGENITOR OF THE PRESENT STATUTE WAS ENACTED BY THE FIRST
CONGRESS IN 1790.  1 STAT. 122. 

"THE ACT EXTENDED THE RULE OF THE CONSTITUTION TO ALL COURTS, FEDERAL
AS WELL AS STATE.  MILLS V. DURYEE, 7 CR. 481, 485."  DAVIS V. DAVIS,
305 U.S. 32, 40. 

FN3  THROUGHOUT THIS LITIGATION THERE HAS BEEN NO DISPUTE AS TO THE
CONTROLLING EFFECT OF THIS FACTUAL ISSUE.  SEE NEBRASKA V. IOWA, 143
U.S. 359, 370. 

FN4  THIS IS, THEREFORE, NOT A CASE IN WHICH A PARTY, ALTHOUGH
AFFORDED AN OPPORTUNITY TO CONTEST SUBJECT-MATTER JURISDICTION, DID NOT
LITIGATE THE ISSUE.  CF. CHICOT COUNTY DRAINAGE DIST. V. BAXTER STATE
BANK, 308 U.S. 371. 

FN5  SEE NOTE 2, SUPRA. 

FN6  THE NEBRASKA SUPREME COURT HAS CLEARLY POSTULATED THE RELEVANT
LAW OF THE STATE:  "THIS COURT ADHERES TO THE RULE THAT IF A COURT IS
ONE COMPETENT TO DECIDE WHETHER OR NOT THE FACTS IN ANY GIVEN
PROCEEDING CONFER JURISDICTION, DECIDES THAT IT HAS JURISDICTION, THEN
ITS JUDGMENTS ENTERED WITHIN THE SCOPE OF THE SUBJECT MATTER OVER WHICH
ITS AUTHORITY EXTENDS IN PROCEEDINGS FOLLOWING THE LAWFUL ALLEGATION OF
CIRCUMSTANCES REQUIRING THE EXERCISE OF ITS JURISDICTION, ARE NOT
SUBJECT TO COLLATERAL ATTACK BUT CONCLUSIVE AGAINST ALL THE WORLD
UNLESS REVERSED ON APPEAL OR AVOIDED FOR ERROR OR FRAUD IN A DIRECT
PROCEEDING.  BRANDEEN V. LAU, 113 NEB. 34, 201 N.W. 665; COUNTY OF
DOUGLAS V. FEENAN, 146 NEB. 156, 18 N.W.2D 740, 159 A.L.R. 569." 
GERGEN V. WESTERN UNION LIFE INS. CO., 149 NEB. 203, 210; 30 N.W.2D
558, 562. 

FN7  SEE, E.G., D'ARCY V. KETCHUM, 11 HOW.  165; KNOWLES V. GASLIGHT
& COKE CO., 19 WALL.  58; HALL V. LANNING, 91 U.S. 160; COLE V.
CUNNINGHAM, 133 U.S. 107; GROVER & BAKER MACHINE CO. V. RADCLIFFE, 137
U.S. 287; THORMANN V. FRAME, 176 U.S. 350; BELL V. BELL, 181 U.S. 175;
ANDREWS V. ANDREWS, 188 U.S. 14; NATIONAL EXCHANGE BANK V. WILEY, 195
U.S. 257; OLD WAYNE LIFE ASSN. V. MCDONOUGH, 204 U.S. 8; CHICAGO LIFE
INS. CO. V. CHERRY, 244 U.S. 25; VALLELY V. NORTHERN FIRE & MARINE INS.
CO., 254 U.S. 348; GRUBB V. PUBLIC UTILITIES COMM'N, 281 U.S. 470. 

FN8  IT IS NOT DISPUTED IN THE PRESENT CASE THAT THE NEBRASKA COURTS
HAD JURISDICTION OVER THE RESPONDENT'S PERSON.  SHE ENTERED A GENERAL
APPEARANCE IN THE TRIAL COURT, AND INITIATED THE APPEAL TO THE NEBRASKA
SUPREME COURT. 

FN9  THIS DECISION WAS ADHERED TO THE FOLLOWING YEAR IN AMERICAN
SURETY CO. V. BALDWIN, 287 U.S. 156.  IN HIS OPINION FOR A UNANIMOUS
COURT IN THAT CASE, MR. JUSTICE BRANDEIS SAID: "THE PRINCIPLES OF RES
JUDICATA APPLY TO QUESTIONS OF JURISDICTION AS WELL AS TO OTHER
ISSUES."  287 U.S., AT 166. 

FN10  THE QUESTION IN STOLL WAS WHAT EFFECT THE COURTS OF ILLINOIS
MUST GIVE TO THE JUDGMENT OF A FEDERAL COURT SITTING IN THAT STATE. 
THE CASE, THEREFORE, DID NOT DIRECTLY INVOLVE THE FULL FAITH AND CREDIT
CLAUSE OF THE CONSTITUTION, BUT, LIKE THE PRESENT CASE, IT INVOLVED THE
FEDERAL STATUTE ENACTED TO IMPLEMENT THE CONSTITUTIONAL PROVISION.  305
U.S., AT 170, N. 5.  SEE NOTE 2, SUPRA. 

FN11  SEE ALSO SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381, 403;
JACKSON V. IRVING TRUST CO., 311 U.S. 494. 

FN12  IT IS TO BE NOTED, HOWEVER, THAT IN NEITHER OF THESE CASES HAD
THE JURISDICTIONAL ISSUES ACTUALLY BEEN LITIGATED IN THE FIRST FORUM. 

THE RESTATEMENT OF CONFLICT OF LAWS RECOGNIZES THE POSSIBILITY OF
SUCH EXCEPTIONS: 

"WHERE A COURT HAS JURISDICTION OVER THE PARTIES AND DETERMINES THAT
IT HAS JURISDICTION OVER THE SUBJECT MATTER, THE PARTIES CANNOT
COLLATERALLY ATTACK THE JUDGMENT ON THE GROUND THAT THE COURT DID NOT
HAVE JURISDICTION OVER THE SUBJECT MATTER, UNLESS THE POLICY UNDERLYING
THE DOCTRINE OF RES JUDICATA IS OUTWEIGHED BY THE POLICY AGAINST
PERMITTING THE COURT TO ACT BEYOND ITS JURISDICTION.  AMONG THE FACTORS
APPROPRIATE TO BE CONSIDERED IN DETERMINING THAT COLLATERAL ATTACK
SHOULD BE PERMITTED ARE THAT: 

"(A)  THE LACK OF JURISDICTION OVER THE SUBJECT MATTER WAS CLEAR: 

"(B)  THE DETERMINATION AS TO JURISDICTION DEPENDED UPON A QUESTION
OF LAW RATHER THAN OF FACT: 

"(C)  THE COURT WAS ONE OF LIMITED AND NOT OF GENERAL JURISDICTION: 

"(D)  THE QUESTION OF JURISDICTION WAS NOT ACTUALLY LITIGATED: 

"(E)  THE POLICY AGAINST THE COURT'S ACTING BEYOND ITS JURISDICTION
IS STRONG."  RESTATEMENT, CONFLICT OF LAWS, SEC. 451(2) (SUPP. 1948). 
SEE RESTATEMENT, JUDGMENTS, SEC. 10 (1942). 

FN13  IN TWO PREVIOUS CASES THE COURT HAS EXPRESSLY LEFT OPEN THE
QUESTION OF THE APPLICABILITY OF THE RULE OF JURISDICTIONAL FINALITY TO
CASES INVOLVING REAL PROPERTY.  SEE STOLL V. GOTTLIEB, 305 U.S., AT
176; UNITED STATES V. UNITED STATES FIDELITY CO., 309 U.S., AT 514. 

FN14  SEE FALL V. EASTIN, 215 U.S. 1; CARPENTER V. STRANGE, 141 U.S.
87, 105-106; OLMSTED V. OLMSTED, 216 U.S. 386. 

FN15  THE ALTERNATIVE OF A NEGOTIATED SETTLEMENT OF ANY DISPUTE
BETWEEN THE STATES OVER THE LOCATION OF THE BOUNDARY WOULD ALSO ALWAYS
BE AVAILABLE.  SEE U.S. CONST., ART. I, SEC. 10. 

MR. JUSTICE BLACK, CONCURRING. 

PETITIONERS AND RESPONDENT DISPUTE THE OWNERSHIP OF A TRACT OF LAND
ADJACENT TO THE MISSOURI RIVER, WHICH IS THE BOUNDARY BETWEEN NEBRASKA
AND MISSOURI.  RESOLUTION OF THIS QUESTION TURNS ON WHETHER THE LAND IS
IN NEBRASKA OR MISSOURI.  NEITHER STATE, OF COURSE, HAS POWER TO MAKE A
DETERMINATION BINDING ON THE OTHER AS TO WHICH STATE THE LAND IS IN.
U.S. CONST., ART. III, SEC. 2; 28 U.S.C. SEC. 1251(A).  HOWEVER, IN A
PRIVATE ACTION BROUGHT BY THESE NEBRASKA PETITIONERS, THE NEBRASKA
SUPREME COURT HAS HELD THAT THE DISPUTED TRACT IS IN NEBRASKA.  IN THE
PRESENT SUIT, BROUGHT BY THIS MISSOURI RESPONDENT IN MISSOURI, THE
UNITED STATES COURT OF APPEALS HAS REFUSED TO BE BOUND BY THE NEBRASKA
COURT'S JUDGMENT.  I CONCUR IN TODAY'S REVERSAL OF THE COURT OF
APPEALS' JUDGMENT, BUT WITH THE UNDERSTANDING THAT WE ARE NOT DECIDING
THE QUESTION WHETHER THE RESPONDENT WOULD CONTINUE TO BE BOUND BY THE
NEBRASKA JUDGMENT SHOULD IT LATER BE AUTHORITATIVELY DECIDED, EITHER IN
AN ORIGINAL PROCEEDING BETWEEN THE STATES IN THIS COURT OR BY A COMPACT
BETWEEN THE TWO STATES UNDER ART. I, SEC. 10, THAT THE DISPUTED TRACT
IS IN MISSOURI. 
..END :












UNITED STATES V. STAPF, EXECUTORS AND TRUSTEES 375 U.S. 118 


NO. 54.  ARGUED OCTOBER 23-24, 1963.  - DECIDED DECEMBER 2, 1963.  - 309
F.2D 592, REVERSED AND REMANDED. 


RESPONDENTS' DECEDENT DIED IN 1953 A RESIDENT AND DOMICILIARY OF
TEXAS.  IN ADDITION TO HIS SEPARATE ESTATE, HE OWNED A LARGER AMOUNT OF
PROPERTY IN COMMUNITY WITH HIS WIFE.  HIS WILL REQUIRED THAT HIS WIDOW
ELECT EITHER TO RETAIN HER ONE-HALF INTEREST IN THE COMMUNITY PROPERTY
OR TO TAKE UNDER THE WILL AND ALLOW ITS TERMS TO GOVERN THE DISPOSITION
OF HER COMMUNITY INTEREST.  IF SHE ELECTED TO TAKE UNDER THE WILL, SHE
WOULD BE GIVEN, AFTER SPECIFIC BEQUESTS TO OTHERS, ONE-THIRD OF THE
COMMUNITY PROPERTY AND ONE-THIRD OF HER HUSBAND'S SEPARATE ESTATE; SHE
WOULD ALLOW HER ONE-HALF INTEREST IN THE COMMUNITY PROPERTY TO PASS
INTO A TRUST FOR THE BENEFIT OF THE CHILDREN; AND THE EXECUTORS WOULD
PAY "ALL AND NOT MERELY ONE-HALF" OF THE COMMUNITY DEBTS AND
ADMINISTRATION EXPENSES.  SHE ELECTED TO TAKE UNDER THE WILL AND
ACTUALLY RECEIVED LESS THAN SHE WOULD HAVE RECEIVED HAD SHE RETAINED
HER INTEREST IN THE COMMUNITY PROPERTY.  HELD: 

1.  SINCE THE WIDOW GAVE UP MORE THAN SHE RECEIVED, THE ESTATE IS NOT
ENTITLED TO ANY MARITAL DEDUCTION UNDER SEC. 812(E) OF THE INTERNAL
REVENUE CODE OF 1939.  PP. 123-129. 

2.  SINCE HALF OF THE CLAIMS AGAINST THE ESTATE WERE CHARGEABLE TO
THE WIDOW'S HALF OF THE COMMUNITY PROPERTY, SUCH CLAIMS COULD NOT BE
DEDUCTED IN FULL FROM THE DECEDENT'S GROSS ESTATE AS "CLAIMS AGAINST
THE ESTATE," WITHIN THE MEANING OF SEC. 812(B)(3).  PP. 130-133. 

3.  THAT PORTION OF THE ADMINISTRATION EXPENSES WHICH WAS CHARGEABLE
TO THE WIDOW'S SHARE OF THE COMMUNITY PROPERTY COULD NOT BE DEDUCTED
FROM THE VALUE OF THE ESTATE AS "ADMINISTRATION EXPENSES" UNDER SEC.
812(B)(2).  PP. 133-134. 

4.  EVEN IF THE TESTATOR'S ASSUMPTION OF RESPONSIBILITY FOR HIS
WIFE'S SHARE OF THE COMMUNITY DEBTS AND FOR HER SHARE OF ADMINISTRATION
EXPENSES WERE TREATED AS MARITAL GIFTS, RATHER THAN AS CLAIMS OR
EXPENSES, NO MARITAL DEDUCTION COULD BE ALLOWED UNDER SEC. 812(E) ON
ACCOUNT OF SUCH GIFTS, BECAUSE THE WIDOW GAVE UP MORE THAN SHE
RECEIVED.  PP. 134-135. 

UNITED STATES V. STAPF ET AL., EXECUTORS AND TRUSTEES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS BROUGHT THIS SUIT AGAINST THE GOVERNMENT IN THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR A REFUND OF ESTATE TAXES
PAID PURSUANT TO AN ASSERTED DEFICIENCY.  THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT HELD THAT RESPONDENTS WERE ENTITLED TO CERTAIN MARITAL
DEDUCTIONS UNDER SEC. 812(E) OF THE INTERNAL REVENUE CODE OF 1939 (FN1)
AND ALSO TO DEDUCTIONS FOR OTHER PAYMENTS AS "CLAIMS AGAINST THE
ESTATE" AND "ADMINISTRATION EXPENSES" UNDER SEC. 812(B)(3) AND (2) OF
THE 1939 CODE.  (FN2)  309 F.2D 592.  WE GRANTED CERTIORARI TO CONSIDER
QUESTIONS OF STATUTORY INTERPRETATION IMPORTANT TO THE ADMINISTRATION
OF THE FEDERAL ESTATE TAX LAWS.  372 U.S. 928. 

LOWELL H. STAPF DIED TESTATE ON JULY 29, 1953, A RESIDENT AND
DOMICILIARY OF TEXAS, A COMMUNITY PROPERTY JURISDICTION.  AT THE TIME
OF HIS DEATH HE OWNED, IN ADDITION TO HIS SEPARATE ESTATE, A
SUBSTANTIAL AMOUNT OF PROPERTY IN COMMUNITY WITH HIS WIFE.  HIS WILL
REQUIRED THAT HIS WIDOW ELECT EITHER TO RETAIN HER ONE-HALF INTEREST IN
THE COMMUNITY OR TO TAKE UNDER THE WILL AND ALLOW ITS TERMS TO GOVERN
THE DISPOSITION OF HER COMMUNITY INTEREST.  IF MRS. STAPF WERE TO ELECT
TO TAKE UNDER THE WILL, SHE WOULD BE GIVEN, AFTER SPECIFIC BEQUESTS TO
OTHERS, ONE-THIRD OF THE COMMUNITY PROPERTY AND ONE-THIRD OF HER
HUSBAND'S SEPARATE ESTATE.  BY ACCEPTING THIS BEQUEST SHE WOULD ALLOW
HER ONE-HALF INTEREST IN THE COMMUNITY TO PASS, IN ACCORDANCE WITH THE
WILL, INTO A TRUST FOR THE BENEFIT OF THE CHILDREN.  IT WAS FURTHER
PROVIDED THAT IF SHE CHOSE TO TAKE UNDER THE WILL THE EXECUTORS WERE TO
PAY "ALL AND NOT MERELY ONE-HALF" OF THE COMMUNITY DEBTS AND
ADMINISTRATION EXPENSES. 

THE RELEVANT FACTS AND COMPUTATIONS ARE NOT IN DISPUTE.  THE
DECEDENT'S SEPARATE PROPERTY WAS VALUED AT $65,100 AND THE COMMUNITY
PROPERTY AT $258,105.  (FN3)  THE ONLY DEBTS WERE COMMUNITY DEBTS
TOTALLING $32,368.  THE ADMINISTRATION EXPENSES, INCLUDING ATTORNEYS'
FEES, WERE $4,073.  IF MRS. STAPF HAD NOT ELECTED TO TAKE UNDER THE
WILL, SHE WOULD HAVE RETAINED HER FULLY VESTED ONE-HALF INTEREST IN THE
COMMUNITY PROPERTY ($129,052) WHICH WOULD HAVE BEEN CHARGED WITH ONE
HALF OF THE COMMUNITY DEBTS ($16,184) AND 35% OF THE ADMINISTRATION
EXPENSES ($1,426).  (FN4)  THUS, AS THE PARTIES AGREE, SHE WOULD HAVE
RECEIVED A NET OF $111,443. 

IN FACT MRS. STAPF ELECTED TO TAKE UNDER THE WILL.  SHE RECEIVED,
AFTER SPECIFIC BEQUESTS TO OTHERS, ONE-THIRD OF THE COMBINED SEPARATE
AND COMMUNITY PROPERTY, A DEVISE VALUED AT $106,268, (FN5) WHICH WAS
$5,175 LESS THAN SHE WOULD HAVE RECEIVED HAD SHE RETAINED HER COMMUNITY
PROPERTY AND REFUSED TO TAKE UNDER THE WILL.  (FN6) 

IN COMPUTING THE NET TAXABLE ESTATE, THE EXECUTORS CLAIMED A MARITAL
DEDUCTION UNDER SEC. 812(E)(1) OF THE INTERNAL REVENUE CODE OF 1939 FOR
THE FULL VALUE OF THE ONE-THIRD OF DECEDENT'S SEPARATE ESTATE ($22,367)
WHICH PASSED TO HIS WIFE UNDER THE WILL.  THE EXECUTORS ALSO CLAIMED A
DEDUCTION FOR THE ENTIRE $32,368 OF COMMUNITY DEBTS AS "CLAIMS AGAINST
THE ESTATE" UNDER SEC. 812(B)(3) AND FOR THE ENTIRE $4,073 OF EXPENSES
AS "ADMINISTRATION EXPENSES" UNDER SEC. 812(B)(2).  THE COMMISSIONER OF
INTERNAL REVENUE DISALLOWED THE MARITAL DEDUCTION AND THE DEDUCTIONS
FOR CLAIMS AND ADMINISTRATION INSOFAR AS THESE REPRESENTED DEBTS (50%)
AND EXPENSES (35%) CHARGEABLE TO THE WIFE'S ONE-HALF OF THE COMMUNITY. 
RESPONDENTS THEN INSTITUTED THIS SUIT FOR A TAX REFUND.  THE DISTRICT
COURT ALLOWED THE FULL MARITAL DEDUCTION BUT DISALLOWED THE DISPUTED
CLAIMS AND EXPENSES.  189 F. SUPP. 830.  ON CROSS-APPEALS THE COURT OF
APPEALS, WITH ONE JUDGE DISSENTING ON ALL ISSUES, HELD THAT EACH OF THE
CLAIMED DEDUCTIONS WAS ALLOWABLE IN FULL.  309 F.2D 592.  FOR REASONS
STATED BELOW, WE HOLD THAT THE COMMISSIONER WAS CORRECT AND THAT NONE
OF THE DISPUTED DEDUCTIONS IS ALLOWABLE.  (FN7)

           I. THE MARITAL DEDUCTION. 

BY ELECTING TO TAKE UNDER THE WILL, MRS. STAPF, IN EFFECT, AGREED TO
ACCEPT THE PROPERTY DEVISED TO HER AND, IN TURN, TO SURRENDER PROPERTY
OF GREATER VALUE TO THE TRUST FOR THE BENEFIT OF THE CHILDREN.  THIS
RAISES THE QUESTION OF WHETHER A DECEDENT'S ESTATE IS ALLOWED A MARITAL
DEDUCTION UNDER SEC. 812(E)(1)(E)(II) OF THE 1939 CODE WHERE THE
BEQUEST TO THE SURVIVING SPOUSE IS ON THE CONDITION THAT SHE CONVEY
PROPERTY OF EQUIVALENT OR GREATER VALUE TO THE CHILDREN.  THE
GOVERNMENT CONTENDS THAT, FOR PURPOSES OF A MARITAL DEDUCTION, "THE
VALUE OF THE INTEREST PASSING TO THE WIFE IS THE VALUE OF THE PROPERTY
GIVEN HER LESS THE VALUE OF THE PROPERTY SHE IS REQUIRED TO GIVE
ANOTHER AS A CONDITION TO RECEIVING IT."  ON THIS VIEW, SINCE THE WIDOW
HAD NO NET BENEFIT FROM THE EXERCISE OF HER ELECTION, THE ESTATE WOULD
BE ENTITLED TO NO MARITAL DEDUCTION.  RESPONDENTS REJECT THIS NET
BENEFIT APPROACH AND ARGUE THAT THE PLAIN MEANING OF THE STATUTE MAKES
DETRIMENT TO THE SURVIVING SPOUSE IMMATERIAL. 

IS FOR "THE VALUE OF ANY INTEREST IN PROPERTY WHICH PASSES  ...  FROM
THE DECEDENT TO HIS SURVIVING SPOUSE."  SUBPARAGRAPH (E) THEN DEALS
SPECIFICALLY WITH THE QUESTION OF VALUATION: 

"(E)  VALUATION OF INTEREST PASSING TO SURVIVING SPOUSE.  - IN
DETERMINING FOR THE PURPOSES OF SUBPARAGRAPH (A) THE VALUE OF ANY
INTEREST IN PROPERTY PASSING TO THE SURVIVING SPOUSE FOR WHICH A
DEDUCTION IS ALLOWED BY THIS SUBSECTION: 

     *         *   *         *         * 

"(II)  WHERE SUCH INTEREST OR PROPERTY IS INCUMBERED IN ANY MANNER,
OR WHERE THE SURVIVING SPOUSE INCURS ANY OBLIGATION IMPOSED BY THE
DECEDENT WITH RESPECT TO THE PASSING OF SUCH INTEREST, SUCH INCUMBRANCE
OR OBLIGATION SHALL BE TAKEN INTO ACCOUNT IN THE SAME MANNER AS IF THE
AMOUNT OF A GIFT TO SUCH SPOUSE OF SUCH INTEREST WERE BEING
DETERMINED." 

THE DISPUTED DEDUCTION TURNS UPON THE INTERPRETATION OF (1) THE
INTRODUCTORY PHRASE "ANY OBLIGATION IMPOSED BY THE DECEDENT WITH
RESPECT TO THE PASSING OF SUCH INTEREST," AND (2) THE CONCLUDING
PROVISION THAT "SUCH  ...  OBLIGATION SHALL BE TAKEN INTO ACCOUNT IN
THE SAME MANNER AS IF THE AMOUNT OF A GIFT TO SUCH SPOUSE OF SUCH
INTEREST WERE BEING DETERMINED." 

THE COURT OF APPEALS, IN ALLOWING THE CLAIMED MARITAL DEDUCTION,
REASONED THAT SINCE THE VALUATION IS TO BE "AS IF" A GIFT WERE BEING
TAXED, THE LEGAL ANALYSIS SHOULD BE THE SAME AS IF A HUSBAND HAD MADE
AN INTER VIVOS GIFT TO HIS WIFE ON THE CONDITION THAT SHE GIVE
SOMETHING TO THE CHILDREN.  IN SUCH A CASE, IT WAS STATED, THE HUSBAND
IS TAXABLE IN THE FULL AMOUNT FOR HIS GIFT.  THE DETRIMENT INCURRED BY
THE WIFE WOULD NOT ORDINARILY REDUCE THE AMOUNT OF THE GIFT TAXABLE TO
THE HUSBAND, THE ORIGINAL DONOR.  (FN8)  THE COURT CONCLUDED: 

"WITHIN GIFT TAX CONFINES THE COMMUNITY PROPERTY OF THE WIDOW PASSING
UNDER THE WILL OF THE HUSBAND TO OTHERS MAY NOT BE 'NETTED' AGAINST THE
DEVISE TO THE WIDOW, AND THUS TESTATOR, WERE THE TRANSFER INTER VIVOS,
WOULD BE LIABLE FOR GIFT TAXES ON THE FULL VALUE OF THE DEVISE."  309
F.2D 592, 598. 

THIS CONCLUSION, BASED ON THE ALLEGED PLAIN MEANING OF THE FINAL GIFT
AMOUNT CLAUSE OF SEC. 812(E)(1)(E)(II), (FN9) IS NOT SUPPORTED BY A
READING OF THE ENTIRE STATUTORY PROVISION.  FIRST, SEC. 812(E) ALLOWS A
MARITAL DEDUCTION ONLY FOR THE DECEDENT'S GIFTS OR BEQUESTS WHICH PASS
"TO HIS SURVIVING SPOUSE."  IN THE PRESENT CASE THE EFFECT OF THE
DEVISE WAS NOT TO DISTRIBUTE WEALTH TO THE SURVIVING SPOUSE, BUT
INSTEAD TO TRANSMIT, THROUGH THE WIDOW, A GIFT TO THE COUPLE'S
CHILDREN.  THE GIFT-TO-THE-SURVIVING-SPOUSE TERMINOLOGY REFLECTS
CONCERN WITH THE STATUS OF THE ACTUAL RECIPIENT OR DONEE OF THE GIFT. 
WHAT THE STATUTE PROVIDES IS A "MARITAL DEDUCTION" - A DEDUCTION FOR
GIFTS TO THE SURVIVING SPOUSE - NOT A DEDUCTION FOR GIFTS TO THE
CHILDREN OR A DEDUCTION FOR GIFTS TO PRIVATELY SELECTED BENEFICIARIES. 
THE APPROPRIATE REFERENCE, THEREFORE, IS NOT TO THE VALUE OF THE GIFT
MOVING FROM THE DECEASED SPOUSE BUT TO THE NET VALUE OF THE GIFT
RECEIVED BY THE SURVIVING SPOUSE. 

SECOND, THE INTRODUCTORY PHRASES OF SEC. 812(E)(1)(E)(II) PROVIDE
THAT THE GIFT-AMOUNT DETERMINATION IS TO BE MADE "WHERE SUCH INTEREST
OR PROPERTY IS INCUMBERED IN ANY MANNER, OR WHERE THE SURVIVING SPOUSE
INCURS ANY OBLIGATION IMPOSED BY THE DECEDENT WITH RESPECT TO THE
PASSING OF SUCH INTEREST  ...  ."  THE GOVERNMENT, DRAWING UPON THE
BROAD IMPORT OF THIS LANGUAGE, ARGUES:  "AN UNDERTAKING BY THE WIFE TO
CONVEY PROPERTY TO A THIRD PERSON, UPON WHICH HER RECEIPT OF PROPERTY
UNDER THE DECEDENT'S WILL IS CONDITIONED, IS PLAINLY AN 'OBLIGATION
IMPOSED BY THE DECEDENT WITH RESPECT TO THE PASSING OF SUCH
INTEREST.'"  RESPONDENTS CONTEND THAT "INCUMBRANCE OR OBLIGATION"
REFERS ONLY TO "A PAYMENT TO BE MADE OUT OF PROPERTY PASSING TO THE
SURVIVING SPOUSE."  RESPONDENTS' NARROW CONSTRUCTION CERTAINLY IS NOT
COMPELLED BY A LITERAL INTERPRETATION OF THE STATUTORY LANGUAGE.  THEIR
CONSTRUCTION WOULD EMBRACE ONLY, FOR EXAMPLE, AN OBLIGATION ON THE
PROPERTY PASSING WHEREAS THE STATUTE SPEAKS OF AN OBLIGATION "WITH
RESPECT TO THE PASSING" GIFT.  FINALLY, TO ARRIVE AT THE REAL VALUE OF
THE GIFT "SUCH  ...  OBLIGATION SHALL BE TAKEN INTO ACCOUNT  ...  ." 
IN CONTEXT WE THINK THIS RELATES THE GIFT-AMOUNT DETERMINATION TO THE
NET ECONOMIC INTEREST RECEIVED BY THE SURVIVING SPOUSE. 

THIS INTERPRETATION IS SUPPORTED BY AUTHORITATIVE DECLARATIONS OF
CONGRESSIONAL INTENT.  THE SENATE COMMITTEE ON FINANCE, IN EXPLAINING
THE OPERATION OF THE MARITAL DEDUCTION, STATED ITS UNDERSTANDING AS
FOLLOWS: 

"IF THE DECEDENT BEQUEATHS CERTAIN PROPERTY TO HIS SURVIVING SPOUSE
SUBJECT, HOWEVER, TO HER AGREEMENT, OR A CHARGE ON THE PROPERTY, FOR
PAYMENT OF $1,000 TO X, THE VALUE OF THE BEQUEST (AND, ACCORDINGLY, THE
VALUE OF THE INTEREST PASSING TO THE SURVIVING SPOUSE) IS THE VALUE,
REDUCED BY $1,000, OF SUCH PROPERTY."  S. REP. NO. 1013, 80TH CONG., 2D
SESS., PT. 2, P. 6. 

THE RELEVANT TREASURY REGULATION IS DIRECTLY BASED UPON, IF NOT
LITERALLY TAKEN FROM, SUCH EXPRESSIONS OF LEGISLATIVE INTENT.  TREAS.
REG. 105, SEC. 81.47CB) (1949).  THE REGULATION SPECIFICALLY INCLUDES
AN EXAMPLE OF THE KIND OF TESTAMENTARY DISPOSITION INVOLVED IN THIS
CASE: 

"A DECEDENT BEQUEATHED CERTAIN SECURITIES TO HIS WIFE IN LIEU OF HER
INTEREST IN PROPERTY HELD BY THEM AS COMMUNITY PROPERTY UNDER THE LAW
OF THE STATE OF THEIR RESIDENCE.  THE WIFE ELECTED TO RELINQUISH HER
COMMUNITY PROPERTY INTEREST AND TO TAKE THE BEQUEST.  FOR THE PURPOSE
OF THE MARITAL DEDUCTION, THE VALUE OF THE BEQUEST IS TO BE REDUCED BY
THE VALUE OF THE COMMUNITY PROPERTY INTEREST RELINQUISHED BY THE
WIFE."  (FN10) 

WE CONCLUDE, THEREFORE, THAT THE GOVERNING PRINCIPLE, APPROVED BY
CONGRESS AND EMBODIED IN THE TREASURY REGULATION, (FN11) MUST BE THAT A
MARITAL DEDUCTION IS ALLOWABLE ONLY TO THE EXTENT THAT THE PROPERTY
BEQUEATHED TO THE SURVIVING SPOUSE EXCEEDS IN VALUE THE PROPERTY SUCH
SPOUSE IS REQUIRED TO RELINQUISH. 

OUR CONCLUSION CONCERNING THE CONGRESSIONALLY INTENDED RESULT UNDER
SEC. 812(E)(1) ACCORDS WITH THE GENERAL PURPOSE OF CONGRESS IN CREATING
THE MARITAL DEDUCTION.  THE 1948 TAX AMENDMENTS WERE INTENDED TO
EQUALIZE THE EFFECT OF THE ESTATE TAXES IN COMMUNITY PROPERTY AND
COMMON-LAW JURISDICTIONS.  (FN12)  UNDER A COMMUNITY PROPERTY SYSTEM,
SUCH AS THAT IN TEXAS, THE SPOUSE RECEIVES OUTRIGHT OWNERSHIP OF ONE
HALF OF THE COMMUNITY PROPERTY AND ONLY THE OTHER ONE-HALF IS INCLUDED
IN THE DECEDENT'S ESTATE.  TO EQUALIZE THE INCIDENCE OF PROGRESSIVELY
SCALED ESTATE TAXES AND TO ADHERE TO THE PATTERNS OF STATE LAW, THE
MARITAL DEDUCTION PERMITS A DECEASED SPOUSE, SUBJECT TO CERTAIN
REQUIREMENTS, TO TRANSFER FREE OF TAXES ONE-HALF OF THE NON-COMMUNITY
PROPERTY TO THE SURVIVING SPOUSE.  ALTHOUGH APPLICABLE TO SEPARATELY
HELD PROPERTY IN A COMMUNITY PROPERTY STATE, THE PRIMARY TRUST OF THIS
IS TO EXTEND TO TAXPAYERS IN COMMON-LAW STATES THE ADVANTAGES OF
"ESTATE SPLITTING" OTHERWISE AVAILABLE ONLY IN COMMUNITY PROPERTY
STATES.  THE PURPOSE, HOWEVER, IS ONLY TO PERMIT A MARRIED COUPLE'S
PROPERTY TO BE TAXED IN TWO STAGES AND NOT TO ALLOW A TAX-EXEMPT
TRANSFER OF WEALTH INTO SUCCEEDING GENERATIONS.  THUS THE MARITAL
DEDUCTION IS GENERALLY RESTRICTED TO THE TRANSFER OF PROPERTY INTERESTS
THAT WILL BE INCLUDIBLE IN THE SURVIVING SPOUSE'S GROSS ESTATE.  (FN13)
RESPONDENTS' CONSTRUCTION OF SEC. 812(E)(1) WOULD, NEVERTHELESS, PERMIT
ONE-HALF OF A SPOUSE'S WEALTH TO PASS FROM ONE GENERATION TO ANOTHER
WITHOUT BEING SUBJECT EITHER TO GIFT OR ESTATE TAXES.  (FN14)  WE DO
NOT BELIEVE THAT THIS RESULT, SQUARELY CONTRARY TO THE CONCEPT OF THE
MARITAL DEDUCTION, CAN BE JUSTIFIED BY THE LANGUAGE OF SEC. 812(E)(1). 
FURTHERMORE, SINCE IN A COMMUNITY PROPERTY JURISDICTION ONE-HALF OF THE
COMMUNITY NORMALLY VESTS IN THE WIFE, APPROVAL OF THE CLAIMED DEDUCTION
WOULD CREATE AN OPPORTUNITY FOR TAX REDUCTION THAT, AS A PRACTICAL
MATTER, WOULD BE MORE READILY AVAILABLE TO COUPLES IN COMMUNITY
PROPERTY JURISDICTIONS THAN TO COUPLES IN COMMON-LAW JURISDICTIONS. 
(FN15)  SUCH A RESULT, AGAIN, WOULD BE UNNECESSARILY INCONSISTENT WITH
A BASIC PURPOSE OF THE STATUTE.    SINCE IN OUR OPINION THE PLAIN
MEANING OF SEC. 812(E)(1) DOES NOT REQUIRE THE INTERPRETATION ADVANCED
BY RESPONDENTS, THE STATUTE MUST BE CONSTRUED TO ACCORD WITH THE
CLEARLY EXPRESSED CONGRESSIONAL PURPOSES AND THE RELEVANT TREASURY
REGULATION.  WE CONCLUDE THAT, FOR ESTATE TAX PURPOSES, THE VALUE OF A
CONDITIONAL BEQUEST TO A WIDOW SHOULD BE THE VALUE OF THE PROPERTY
GIVEN TO HER LESS THE VALUE OF THE PROPERTY SHE IS REQUIRED TO GIVE TO
ANOTHER.  IN THIS CASE THE VALUE OF THE PROPERTY TRANSFERRED TO MRS.
STAPF ($106,268) MUST BE REDUCED BY THE VALUE OF THE COMMUNITY PROPERTY
SHE WAS REQUIRED TO RELINQUISH ($111,443).  SINCE SHE RECEIVED NO NET
BENEFIT, THE ESTATE IS ENTITLED TO NO MARITAL DEDUCTION. 

               II.  CLAIMS AGAINST THE ESTATE AND ADMINISTRATION
EXPENSES. 

   A. CLAIMS AGAINST THE ESTATE. 

THE GROSS ESTATE OF "SUCH AMOUNTS  ...  FOR CLAIMS AGAINST THE ESTATE
...  AS ARE ALLOWED BY THE LAWS OF THE JURISDICTION ...  UNDER WHICH
THE ESTATE IS BEING ADMINISTERED  ...  ."  THE COMMUNITY DEBTS IN THIS
CASE TOTAL $32,368, CONSISTING LARGELY OF TAXES DUE FOR PAST INCOME. 
THE DECEDENT'S WILL DIRECTED THAT HIS EXECUTORS PAY "ALL AND NOT MERELY
ONE-HALF" OF THE COMMUNITY DEBTS.  UNDER TEXAS LAW, ABSENT THIS
PROVISION, ONLY ONE-HALF OF THE COMMUNITY DEBTS WOULD BE CHARGED TO THE
DECEDENT'S HALF OF THE COMMUNITY.  THE ISSUE PRESENTED IS WHETHER, AS A
RESULT OF THE TESTAMENTARY DIRECTION, A DEDUCTION MAY BE TAKEN FOR THE
ENTIRE AMOUNT OF THE COMMUNITY DEBTS AS "CLAIMS AGAINST THE ESTATE  ...
ALLOWED BY" STATE LAW. 

THE FIRST QUESTION TO CONSIDER IS WHETHER THE CLAIM IS OF THE TYPE
INTENDED TO BE DEDUCTIBLE.  (FN16)  IT CANNOT BE DENIED THAT WHERE THE
EXECUTORS ARE DIRECTED TO PAY THE DEBTS OF ANOTHER PARTY THE SUBSTANCE
OF THE DIRECTION IS TO CONFER A BENEFICIAL GIFT ON THAT PARTY. 
RESPONDENTS' CONTENTIONS IN EFFECT REQUIRE THAT SEC. 812(B) - DESIGNED
TO ALLOW DEDUCTIONS FOR "EXPENSES, LOSSES, INDEBTEDNESS, AND TAXES" -
BE CONSTRUED TO AUTHORIZE TAX-FREE GIFTS DESPITE THE GENERAL POLICY
THAT WEALTH NOT BE TRANSMITTED TAX FREE AT DEATH.  (FN17)  THE
PROVISIONS OF SEC. 812(B) DEMONSTRATE THAT IT WAS NOT INTENDED TO ALLOW
DEDUCTIONS FOR VOLUNTARY TRANSFERS THAT DEPLETE THE ESTATE MERELY
BECAUSE THE TESTATOR DESCRIBED THE TRANSFERS OR PAYMENTS AS THE
SETTLEMENT OF "CLAIMS" OR "DEBTS."  THIS INTENT IS EVIDENCED BY THE
TREATMENT OF CLAIMS OR DEBTS FOUNDED UPON PROMISES OR AGREEMENTS.  THE
CLAIMS AGAINST THE ESTATE  ...  OR ANY INDEBTEDNESS  ...  , WHEN
FOUNDED UPON A PROMISE OR AGREEMENT,  ...  TO THE EXTENT THAT THEY WERE
CONTRACTED BONA FIDE AND FOR AN ADEQUATE AND FULL CONSIDERATION IN
MONEY OR MONEY'S WORTH  ... ."  ABSENT SUCH AN OFFSET OR AUGMENTATION
OF THE ESTATE, A TESTATOR COULD DISGUISE TRANSFERS AS PAYMENTS IN
SETTLEMENT OF DEBTS AND CLAIMS AND THUS OBTAIN DEDUCTIONS FOR
TRANSMITTING GIFTS.  AS THIS REQUIREMENT SUGGESTS, A DEDUCTION UNDER
SEC. 812(B) SHOULD NOT BE PREDICATED SOLELY ON THE FINDING THAT A
PROMISE OR CLAIM IS LEGALLY ENFORCEABLE UNDER THE STATE LAWS GOVERNING
THE VALIDITY OF CONTRACTS AND WILLS.  (FN18)  THE CLAIMS REFERRED TO BY
THE STATUTE ARE THOSE "CLAIMS AGAINST" THE PROPERTY OF THE DECEASED
WHICH ARE ALLOWED BY AND ENFORCEABLE UNDER THE LAWS OF THE
ADMINISTERING STATE AND NOT THOSE CLAIMS CREATED BY THE DECEASED'S
GRATUITOUS ASSUMPTION OF DEBTS ATTACHING TO THE PROPERTY OF ANOTHER. 

THE PERTINENT TREASURY REGULATION STATES THAT THE DEDUCTIBLE CLAIMS
ARE "SUCH ONLY AS REPRESENT PERSONAL OBLIGATIONS OF THE DECEDENT  ...
."  (FN19)  WE CANNOT AGREE WITH RESPONDENTS' CONTENTION THAT THE DEBTS
CHARGEABLE TO THE WIFE'S COMMUNITY PROPERTY ARE "PERSONAL OBLIGATIONS"
OF THE DECEDENT WITHIN THE MEANING OF THE REGULATION.  IT IS TRUE, AS
THE COURT OF APPEALS STATED, THAT UNDER TEXAS LAW THE HUSBAND, AS
MANAGER OF THE COMMUNITY PROPERTY, WAS PERSONALLY LIABLE FOR THE FULL
AMOUNT OF COMMUNITY DEBTS.  309 F.2D 592,596.  HIS LIABILITY FOR THE
PORTION OF DEBTS CHARGEABLE TO HIS WIFE'S COMMUNITY PROPERTY WAS,
HOWEVER, ACCOMPANIED BY A RIGHT OVER AGAINST HER HALF OF THE
COMMUNITY.  IBID.  THE BASIC RULE OF TEXAS LAW IS THAT THE COMMUNITY IS
LIABLE FOR ITS DEBTS, AND, ACCORDINGLY, HALF THE DEBTS ATTACH TO THE
WIFE'S COMMUNITY PROPERTY.  SINCE THE WILL OF THE DECEDENT CANNOT BE
ALLOWED TO DEFINE WHAT IS AN "OBLIGATION" OR A "CLAIM," WHERE, AS IN
THIS CASE, THE COMMUNITY IS SOLVENT, THE DEBTS CHARGEABLE TO THE WIFE'S
PROPERTY CANNOT REALISTICALLY BE DEEMED "PERSONAL OBLIGATIONS" OF THE
DECEDENT OR "CLAIMS AGAINST" HIS ESTATE. 

THE PROVISIONS OF SEC. 812(B), LIKE THOSE OF SEC. 812(E) ALLOWING
MARITAL DEDUCTIONS, MUST BE ANALYZED IN LIGHT OF THE CONGRESSIONAL
PURPOSE OF EQUALIZING THE INCIDENCE OF TAXATION UPON COUPLES IN COMMON
LAW AND COMMUNITY PROPERTY JURISDICTIONS.  IF THE DEDUCTIBLE "CLAIMS"
WERE TO INCLUDE ALL COMMUNITY DEBTS THAT MIGHT BE, IN A LITERAL SENSE,
"PERSONAL OBLIGATIONS" OF THE HUSBAND AS SURETY, THEN A MARRIED COUPLE
IN A COMMUNITY PROPERTY STATE MIGHT READILY INCREASE THEIR TAX-FREE
ESTATE TRANSFERS.  FOR EXAMPLE, BY BORROWING AGAINST THE VALUE OF THE
COMMUNITY PROPERTY AND THEN REQUIRING THAT HIS EXECUTORS PAY ALL
COMMUNITY DEBTS, THE HUSBAND COULD OBTAIN A TAX DEDUCTION FOR WHAT
WOULD IN EFFECT BE A TESTAMENTARY GIFT TO HIS WIFE.  (FN20)  THAT GIFT
MIGHT OR MIGHT NOT QUALIFY FOR TREATMENT AS A MARITAL DEDUCTION, (FN21)
BUT IT CERTAINLY WAS NOT INTENDED TO BE MADE DEDUCTIBLE BY SEC.
812(B).  A CONTRARY INTERPRETATION OF SEC. 812(B)(3) WOULD, IN OUR
OPINION, GENERALLY TEND TO CREATE UNWARRANTED TAX ADVANTAGES FOR
COUPLES IN COMMUNITY PROPERTY STATES.  (FN22)

        B. ADMINISTRATION EXPENSES. 

THE TESTATOR'S WILL PROVIDED THAT ADMINISTRATION EXPENSES, AS WELL AS
COMMUNITY DEBTS, SHOULD BE PAID ENTIRELY OUT OF HIS HALF OF THE
COMMUNITY PROPERTY.  THE ADMINISTRATION EXPENSES TOTALLED $4,073. 
UNDER TEXAS LAW AN ALLOCABLE SHARE OF THESE COSTS WAS CHARGEABLE TO THE
SURVIVING SPOUSE'S COMMUNITY PROPERTY.  THAT ALLOCABLE SHARE WAS
DETERMINED TO BE 35% OR $1,426.  THE ISSUE IS WHETHER THE EXECUTORS'
PAYMENT OF THE COSTS ATTRIBUTABLE TO THE WIFE'S PROPERTY ARE DEDUCTIBLE
"ADMINISTRATION EXPENSES  ...  ALLOWED BY" THE LAW OF THE STATE UNDER
SEC. 812(B)(2). 

THE INTERPRETATION OF "ADMINISTRATION EXPENSES" UNDER SEC. 812(B)(2)
INVOLVES SUBSTANTIALLY THE SAME CONSIDERATIONS THAT DETERMINE THE
INTERPRETATION OF "CLAIMS AGAINST THE ESTATE" UNDER SEC. 812(B)(3).  IN
BOTH INSTANCES, THE TESTATOR, BY DIRECTING THAT PAYMENT BE MADE OF
DEBTS CHARGEABLE TO ANOTHER OR TO NON-ESTATE PROPERTY, REDUCES HIS NET
ESTATE AND IN EFFECT CONFERS A GIFT OR BEQUEST UPON ANOTHER.  WE
BELIEVE THAT THE PROVISIONS OF SEC. 812(B), LIKE THOSE OF SEC. 812(E)
PROVIDING THE MARITAL DEDUCTION, MUST BE READ IN LIGHT OF THE GENERAL
POLICIES OF TAXING THE TRANSMISSION OF WEALTH AT DEATH AND OF
EQUALIZING THE TAX TREATMENT OF COUPLES IN COMMON-LAW AND IN COMMUNITY
PROPERTY JURISDICTIONS.  WE HOLD, THEREFORE, THAT A DEDUCTION MAY NOT
BE ALLOWED FOR ADMINISTRATION COSTS CHARGEABLE TO THE SURVIVING
SPOUSE'S COMMUNITY PROPERTY. 

               C. THE PAYMENT OF DEBTS AND EXPENSES AS A MARITAL
GIFT. 

IN OUR VIEW THE PAYMENTS MADE AS A RESULT OF THE TESTATOR'S
ASSUMPTION OF RESPONSIBILITY BOTH FOR HIS WIFE'S SHARE OF THE COMMUNITY
DEBTS AND FOR HER SHARE OF THE ADMINISTRATION EXPENSES ARE MORE
PROPERLY CHARACTERIZED AS MARITAL GIFTS RATHER THAN AS "CLAIMS" OR
"EXPENSES."  SINCE THESE GIFTS WERE TO THE SURVIVING SPOUSE,
RESPONDENTS CONTEND THAT A MARITAL DEDUCTION SHOULD BE ALLOWED.  OUR
INTERPRETATION OF SEC. 812(E) DISPOSES OF THIS ARGUMENT, FOR UNDER ANY
VIEW OF THE FACTS, EVEN IF THESE ITEMS ARE DEEMED TO BE GIFTS TO THE
WIFE, THE WILL REQUIRED HER TO SURRENDER PROPERTY MORE VALUABLE THAN
THE BEQUESTS SHE RECEIVED.  (FN23)  IN THE ABSENCE OF A NET BENEFIT
PASSING TO THE SURVIVING SPOUSE, NO MARITAL DEDUCTION IS ALLOWABLE. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IS
REVERSED AND THE CASE REMANDED FOR PROCEEDINGS IN ACCORDANCE WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  62 STAT. 117 (1948), NOW INT. REV. CODE OF 1954, SEC.
2056(B)(4)(B).  THE PROVISIONS INVOLVED ARE SEC. 812(E)(1)(A) AND
(E)(II): 

"(E)  BEQUESTS, ETC., TO SURVIVING SPOUSE. 

"(1)  ALLOWANCE OF MARITAL DEDUCTION. 

"(A)  IN GENERAL.  - AN AMOUNT EQUAL TO THE VALUE OF ANY INTEREST IN
PROPERTY WHICH PASSES OR HAS PASSED FROM THE DECEDENT TO HIS SURVIVING
SPOUSE, BUT ONLY TO THE EXTENT THAT SUCH INTEREST IS INCLUDED IN
DETERMINING THE VALUE OF THE GROSS ESTATE. 

     *         *         *  *         * 

"(E)  VALUATION OF INTEREST PASSING TO SURVIVING SPOUSE.  - IN
DETERMINING FOR THE PURPOSES OF SUBPARAGRAPH (A) THE VALUE OF ANY
INTEREST IN PROPERTY PASSING TO THE SURVIVING SPOUSE FOR WHICH A
DEDUCTION IS ALLOWED BY THIS SUBSECTION: 

     *         *         *         *         * 

"(II)  WHERE SUCH INTEREST OR PROPERTY IS INCUMBERED IN ANY MANNER,
OR WHERE THE SURVIVING SPOUSE INCURS ANY OBLIGATION IMPOSED BY THE
DECEDENT WITH RESPECT TO THE PASSING OF SUCH INTEREST, SUCH INCUMBRANCE
OR OBLIGATION SHALL BE TAKEN INTO ACCOUNT IN THE SAME MANNER AS IF THE
AMOUNT OF A GIFT TO SUCH SPOUSE OF SUCH INTEREST WERE BEING
DETERMINED." 

FN2  53 STAT. 123 (1939), NOW INT. REV. CODE OF 1954, SEC. 2053(A). 
SUBSEQUENT REFERENCES WILL BE TO THE 1939 CODE UNDER WHICH THE CASE
AROSE.  THE PERTINENT PROVISIONS OF SEC. 812(B) AUTHORIZE DEDUCTIONS
FOR: 

"(B)  EXPENSES, LOSSES, INDEBTEDNESS, AND TAXES.  - SUCH AMOUNTS: 

"(1)  FOR FUNERAL EXPENSES, 

"(2)  FOR ADMINISTRATION EXPENSES, 

"(3)  FOR CLAIMS AGAINST THE ESTATE, AND 

"(4) FOR UNPAID MORTGAGES UPON, OR ANY INDEBTEDNESS IN RESPECT TO,
PROPERTY WHERE THE VALUE OF DECEDENT'S INTEREST THEREIN, UNDIMINISHED
BY SUCH MORTGAGE OR INDEBTEDNESS, IS INCLUDED IN THE VALUE OF THE GROSS
ESTATE: 

"AS ARE ALLOWED BY THE LAWS OF THE JURISDICTION, WHETHER WITHIN OR
WITHOUT THE UNITED STATES, UNDER WHICH THE ESTATE IS BEING
ADMINISTERED, BUT NOT INCLUDING ANY INCOME TAXES UPON INCOME RECEIVED
AFTER THE DEATH OF THE DECEDENT, OR PROPERTY TAXES NOT ACCRUED BEFORE
HIS DEATH, OR ANY ESTATE, SUCCESSION, LEGACY, OR INHERITANCE TAXES. 
THE DEDUCTION HEREIN ALLOWED IN THE CASE OF CLAIMS AGAINST THE ESTATE,
UNPAID MORTGAGES, OR ANY INDEBTEDNESS SHALL, WHEN FOUNDED UPON A
PROMISE OR AGREEMENT, BE LIMITED TO THE EXTENT THAT THEY WERE
CONTRACTED BONA FIDE AND FOR AN ADEQUATE AND FULL CONSIDERATION IN
MONEY OR MONEY'S WORTH  ...  ." 

FN3  THE FIGURES STATED THROUGHOUT ARE ROUNDED TO THE NEARER DOLLAR. 

FN4  THE APPORTIONMENT OF ADMINISTRATION EXPENSES WAS INITIALLY
DETERMINED BY A REVENUE EXAMINER AND WAS SUSTAINED BY THE DISTRICT
COURT.  189 F. SUPP. 830, 838. 

FN5  THIS INCLUDES $700 FOR AN AUTOMOBILE SPECIFICALLY BEQUEATHED TO
MRS. STAPF.  THERE IS SOME QUESTION AS TO WHETHER MRS. STAPF SHOULD BE
CREDITED WITH RECEIVING THE FULL VALUE OF THE AUTOMOBILE ($1,400) OR
ONLY A ONE-HALF INTEREST ($700).  FOR PRESENT PURPOSES THE DIFFERENCE
IS IMMATERIAL FOR IT IS INSUFFICIENT TO ALTER THE BASIC FACT THAT THE
WIDOW DID NOT RECEIVE A NET BENEFIT BY ELECTING TO TAKE UNDER THE
WILL.  WE THEREFORE ACCEPT THE FIGURES USED BY THE COURTS BELOW AND
CONSIDER MRS. STAPF AS RECEIVING ONLY A ONE-HALF INTEREST ($700) IN THE
AUTOMOBILE. 

FN6  THE PARTIES AGREE THAT THE NET EFFECT OF TAKING UNDER THE WILL
MAY BE COMPUTED BY ANOTHER METHOD.  AS EXPLAINED BY THE COURT OF
APPEALS, "COMPUTED DIFFERENTLY BUT WITH THE SAME RESULT, THE WIDOW
RETAINED A ONE-THIRD INTEREST OUT OF THE ONE-HALF OF THE COMMUNITY
OWNED BY HER, THEREBY TRANSFERRING ONLY A ONE-SIXTH INTEREST UNDER THE
ELECTION TO TAKE.  UNDER THIS METHOD OF COMPUTATION SHE TRANSFERRED
PROPERTY HAVING A VALUATION OF $27,541.16 AND RECEIVED PROPERTY BEING
THE ONE-THIRD INTEREST IN THE SEPARATE PROPERTY OF THE HUSBAND AND THE
ONE-HALF INTEREST IN THE AUTOMOBILE OF THE AGGREGATE VALUE OF THE
$22,366.66, MAKING A NET LOSS TO HER OF $5,174.50."  309 F.2D 592,594. 

FN7  THE COMMISSIONER DID IN FACT ALLOW A MARITAL DEDUCTION FOR $700,
REPRESENTING A ONE-HALF INTEREST IN THE AUTOMOBILE.  309 F.2D 592, 597,
N. 5.  THAT ALLOWANCE WAS NOT CHALLENGED BY THE GOVERNMENT IN THE
DISTRICT COURT.  WE THEREFORE DO NOT REVIEW THE JUDGMENT OF THE COURT
OF APPEALS INSOFAR AS IT ALLOWS THIS $700 DEDUCTION. 

FN8  SEE, E.G., COMMISSIONER V. WEMYSS, 324 U.S. 303.  THERE THE
COURT STATED THAT UNDER THE REVENUE ACT OF 1932 MERE DETRIMENT TO THE
TRANSFEREE DID NOT CONSTITUTE THE REQUISITE "CONSIDERATION IN MONEY OR
MONEY'S WORTH" TO THE TRANSFEROR SO AS TO RELIEVE HIM OF GIFT TAX
LIABILITY.  RESPONDENTS' RELIANCE ON THIS CASE IGNORES THAT IT INVOLVED
NEITHER A DETERMINATION OF WHO WAS TO BE CONSIDERED THE BENEFICIAL
DONEE NOR A VALUATION OF THE GIFT RECEIVED BY SUCH DONEE. 

FN9  THE PORTION OF THE LANGUAGE RELIED UPON PROVIDES THAT THE
VALUATION BE "IN THE SAME MANNER AS IF THE AMOUNT OF A GIFT TO SUCH
SPOUSE OF SUCH INTEREST WERE BEING DETERMINED." 

FN10  TREAS. REG. 105, SEC. 81.47CB)(3) (1949), NOW TREAS. REG. SEC.
20.2056(B) - 4(B)(3) (1958).   THE REGULATION PROVIDES ANOTHER RELEVANT
ILLUSTRATION "OF PROPERTY INTERESTS WHICH PASSED FROM THE DECEDENT TO
HIS SURVIVING SPOUSE SUBJECT TO THE IMPOSITION OF AN OBLIGATION BY THE
DECEDENT:  (1) A DECEDENT DEVISED A RESIDENCE VALUED AT $25,000 TO HIS
WIFE, WITH A DIRECTION THAT SHE PAY $5,000 TO HIS SISTER.  FOR THE
PURPOSE OF THE MARITAL DEDUCTION, THE VALUE OF THE PROPERTY INTEREST
PASSING TO THE WIFE IS ONLY $20,000."    SEE LOWNDES AND KRAMER,
FEDERAL ESTATE AND GIFT TAXES (1962), SEC. 17.4:  "WHAT THE REGULATIONS
ARE DRIVING AT SEEMS TO BE THIS.  IF A DECEDENT BEQUEATHS PROPERTY TO
HIS WIFE IN LIEU OF HER INTEREST IN COMMUNITY PROPERTY, WHICH IS NOT
PART OF HIS ESTATE AND WHICH DOES NOT PASS TO HER FROM HIM, IT SEEMS
CLEAR THAT THE ONLY THING WHICH THE SURVIVING SPOUSE ACTUALLY RECEIVES
FROM THE DECEDENT IS THE EXCESS OF THE INTEREST BEQUEATHED TO HER OVER
AND ABOVE THE VALUE OF HER INTEREST IN THE COMMUNITY PROPERTY. 
THEREFORE, THIS SHOULD BE THE ONLY AMOUNT WHICH QUALIFIES FOR THE
MARITAL DEDUCTION  ...  ." 

FN11  THIS COURT HAS FREQUENTLY "GIVEN CONSIDERABLE AND IN SOME CASES
DECISIVE WEIGHT TO  ... INTERPRETATIVE REGULATIONS OF THE TREASURY AND
OF OTHER BODIES THAT WERE NOT OF ADVERSARY ORIGIN."  SKIDMORE V. SWIFT
& CO., 323 U.S. 134, 140.  ALTHOUGH THE WEIGHT TO BE GIVEN TO AN
INTERPRETATIVE RULE VARIES WITH ITS STATUTORY AND LEGISLATIVE CONTEXT,
A TREASURY REGULATION IS PARTICULARLY PERSUASIVE WHEN, AS IN THIS CASE,
IT IS SUPPORTED BY DECLARATIONS OF CONGRESSIONAL INTENT. 

FN12  SEE H.R. REP. NO. 1274, 80TH CONG., 2D SESS., PP. 24-26; S.
REP. NO. 1013, 80TH CONG., 2D SESS., PP. 26-29; SUGARMAN, ESTATE AND
GIFT TAX EQUALIZATION - THE MARITAL DEDUCTION (1948), 36 CAL. L. REV.
223, 228-230. 

FN13  THE CONGRESSIONAL CONCERN WITH THE EVENTUAL TAXABILITY OF
MARITAL-DEDUCTION PROPERTY IS INDICATED BY THE TERMINABLE INTEREST RULE
OF SEC. 812(E)(1)(B).  SEE S. REP. NO. 1013, SUPRA, NOTE 12, P. 28;
WARREN AND SURREY, FEDERAL ESTATE AND GIFT TAXATION (1961), PP. 759
760. 

FN14  THE COURT OF APPEALS RECOGNIZED THE EFFECT OF ITS DECISION:
"HERE ESTATE TAXES ARE DUE NOW ON THE PROPERTY OF THE HUSBAND WITH THE
DEVISE TO THE WIDOW EXCLUDED.  IT IS A PART OF THE MARITAL DEDUCTION OR
EXCLUSION ON WHICH TAXES ARE DEFERRED TO THE ESTATE OF THE WIDOW TO BE
ASSESSED ON SO MUCH OF IT AS SURVIVES ON ANOTHER DAY.  THE NET OF THE
TRANSFER BY THE WIDOW BECAME SUBJECT TO GIFT TAXES AT THE TIME OF THE
TRANSFER.  THE PROPERTY TRANSFERRED BY THE WIDOW WILL, TO THE EXTENT OF
AN AMOUNT EQUAL TO THE DEVISE TO HER, ESCAPE BOTH GIFT AND ESTATE
TAXES."  309 F.2D 592, 598.  FOR AN ILLUSTRATION OF THE TAX EFFECTS OF
THE DECISION, SEE THE DISSENT OF JUDGE WISDOM.  309 F.2D, AT 608-609. 

FN15  SEE 76 HARV. L. REV. 1671, 1675. 

FN16  SEE MORGAN V. COMMISSIONER, 309 U.S. 78, 80-81 (CONCERNING THE
MEANING OF "GENERAL POWER OF APPOINTMENT" UNDER A FEDERAL REVENUE ACT):
"STATE LAW CREATES LEGAL INTERESTS AND RIGHTS.  THE FEDERAL REVENUE
ACTS DESIGNATE WHAT INTERESTS OR RIGHTS, SO CREATED, SHALL BE TAXED. 
OUR DUTY IS TO ASCERTAIN THE MEANING OF THE WORDS USED TO SPECIFY THE
THING TAXED.  IF IT IS FOUND IN A GIVEN CASE THAT AN INTEREST OR RIGHT
CREATED BY LOCAL LAW WAS THE OBJECT INTENDED TO BE TAXED, THE FEDERAL
LAW MUST PREVAIL NO MATTER WHAT NAME IS GIVEN TO THE INTEREST OR RIGHT
BY STATE LAW."  SEE HART AND WECHSLER, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM (1953), PP. 456-457. 

FN17  SEE, E.G., LOWNDES AND KRAMER, OP. CIT., SUPRA, NOTE 10, SECS.
1.2, 2.2. 

FN18  THE MAJORITY OF THE COURT OF APPEALS PASSED OVER THE ADEQUATE
CONSIDERATION PROVISION BECAUSE "THE DEBTS HERE WERE IN THE MAIN FOR
INCOME TAXES AND AD VALOREM TAXES, DEBTS IMPOSED BY LAW."  309 F.2D
592, 596.  HOWEVER, SINCE ONE-HALF OF THE TAXES WERE CHARGEABLE TO THE
WIFE'S COMMUNITY PROPERTY, THE DISPUTED CLAIMS WERE IN FACT IMPOSED ON
THE ESTATE ONLY BY THE TERMS OF THE WILL AND THE WIDOW'S ELECTION TO
TAKE UNDER THOSE TERMS. 

FN19  TREAS. REG. 105, SEC. 81.36 (1942), NOW TREAS. REG. SEC.
20.2053-4 (1958):  "CLAIMS AGAINST THE ESTATE.  - THE AMOUNTS THAT MAY
BE DEDUCTED UNDER THIS HEADING ARE SUCH ONLY AS REPRESENT PERSONAL
OBLIGATIONS OF THE DECEDENT EXISTING AT THE TIME OF HIS DEATH, WHETHER
OR NOT THEN MATURED, AND INTEREST THEREON WHICH HAD ACCRUED AT THE TIME
OF DEATH  ...  .  ONLY CLAIMS ENFORCEABLE AGAINST THE DECEDENT'S ESTATE
MAY BE DEDUCTED ...  ."  WITH REGARD TO THE DISPUTED DEDUCTION FOR THE
WIFE'S SHARE OF COMMUNITY DEBTS, IT HAS BEEN SUGGESTED THAT:  "BECAUSE
THE DECEDENT'S ESTATE IS NOT BOUND, EVEN UNDER STATE LAW, UNTIL AFTER
THE WIDOW ELECTS, ALLOWANCE OF THE DEDUCTION MAY BE INCOMPATIBLE WITH
THE REGULATION REQUIRING THAT THE CLAIMS BE IN EXISTENCE AT THE
DECEDENT'S DEATH.  THIS REQUIREMENT COULD ONLY BE FULFULLED BY AN
ELECTION WHICH WOULD WORK RETROACTIVELY."  37 TUL.  L. REV. 297, 315. 

FN20  309 F.2D 592, 604 (WISDOM, J., DISSENTING):  "FOR EXAMPLE, IN
THE TWILIGHT OF THEIR YEARS, A COUPLE WITH COMMUNITY PROPERTY WORTH
$1,000,000 COULD BORROW AN ADDITIONAL $1,000,000 AND INVEST IT IN
SECURITIES, USING THE $2,000,000 AS COLLATERAL.  AS A RESULT, THE
COMMUNITY PROPERTY WOULD BE INCREASED FROM ONE MILLION TO TWO MILLION
DOLLARS, AND WOULD HAVE DEBTS AGAINST IT OF ONE MILLION DOLLARS.  IF
THE HUSBAND PROVIDED BY WILL THAT ALL COMMUNITY DEBTS BE PAID OUT OF
HIS SHARE OF THE COMMUNITY PROPERTY, UPON HIS DEATH HIS SHARE OF THE
COMMUNITY PROPERTY WOULD BE WORTH $1,000,000.  ALL OF THIS, HOWEVER,
WOULD BE MATCHED BY DEDUCTIBLE COMMUNITY DEBTS.  THUS, UNDER THE
COURT'S HOLDING, THE ENTIRE 'NET' ESTATE OF $1,000,000 WOULD PASS,
UNTAXED, TO THE WIFE." 

FN21  SEE INFRA, P. 134. 

FN22  SEE 76 HARV. L. REV. 1671, 1675. 

FN23  RESPONDENTS CONCEDE THAT "EVEN WITH THE BENEFIT OF THE BEQUEST
OF 1/3 OF THE SEPARATE PROPERTY TO HER AND THE BENEFIT OF THE DEBT AND
EXPENSE ASSUMPTION PROVISIONS, MRS. STAPF ENDED UP WITH LESS THAN SHE
WOULD HAVE OWNED HAD SHE ELECTED TO TAKE AGAINST THE WILL."  HER SHARE
OF THE GROSS COMMUNITY ASSETS WAS $129,052.  THE PORTION OF THE DEBTS
($16,184) AND ADMINISTRATION EXPENSES ($1,426) CHARGEABLE TO HER WAS
$17,610.  WHEN THE ASSUMPTION OF THE DEBTS AND EXPENSES IS VIEWED AS A
LEGACY, THE EFFECT OF TAKING UNDER THE WILL MAY BE SUMMARIZED AS
FOLLOWS:  MRS. STAPF, IN EFFECT RETAINED ONE-THIRD OF THE TOTAL
COMMUNITY PROPERTY REMAINING AFTER CERTAIN BEQUESTS ($83,902; SEE NOTE
5, SUPRA) AND ALLOWED THE BALANCE OF HER COMMUNITY ($129,052 MINUS
$83,902) TO PASS INTO TRUST FOR THE CHILDREN.  THUS SHE GAVE UP
PROPERTY WORTH $45,151.  IN RETURN SHE WAS GIVEN SEPARATE PROPERTY
VALUED AT $22,367 (SEE NOTE 6, SUPRA) AND THE BENEFIT OF THE DEBT AND
EXPENSE ASSUMPTION, OR $17,610, A TOTAL TRANSFER OF $39,976.  THUS, THE
EXCHANGE PRODUCED A NET LOSS TO MRS. STAPF OF $5,175. 
..END :
















DRESNER V. CITY OF TALLAHASSEE 375 U.S. 136 


NO. 35.  ARGUED OCTOBER 23, 1963.  - QUESTIONS CERTIFIED TO SUPREME
COURT OF FLORIDA DECEMBER 2, 1963.  - FOR OPINION BELOW, SEE POST, P.
139. 


CONSIDERING THAT THERE ARE QUESTIONS OF FLORIDA LAW ANSWERS TO WHICH
ARE NECESSARY TO ENABLE THIS COURT TO DETERMINE ITS JURISDICTION OVER
THIS CAUSE, AND WITH RESPECT TO WHICH THERE APPEAR TO BE NO PRECISE
CONTROLLING PRECEDENTS IN THE DECISIONS OF THE SUPREME COURT OF
FLORIDA, THIS COURT DIRECTS THAT CERTAIN QUESTIONS BE CERTIFIED TO THE
SUPREME COURT OF FLORIDA, PURSUANT TO RULE 4.61 OF THE FLORIDA
APPELLATE RULES.  PP. 136-139. 

DRESNER ET AL. V. CITY OF TALLAHASSEE. 

CERTIORARI TO THE CIRCUIT COURT OF FLORIDA, SECOND JUDICIAL CIRCUIT. 

PER CURIAM. 

CONSIDERING THAT THERE ARE QUESTIONS OF FLORIDA LAW ANSWERS TO WHICH
ARE NECESSARY TO ENABLE THIS COURT TO DETERMINE ITS JURISDICTION OVER
THIS CAUSE, AND WITH RESPECT TO WHICH THERE APPEAR TO BE NO PRECISE
CONTROLLING PRECEDENTS IN THE DECISIONS OF THE SUPREME COURT OF
FLORIDA, THIS COURT DESIRES TO CERTIFY TO THE SUPREME COURT OF FLORIDA,
PURSUANT TO RULE 4.61 OF THE FLORIDA APPELLATE RULES, THE QUESTIONS
STATED HEREAFTER. 

THE PETITIONERS HAVE BEEN TRIED AND CONVICTED IN THE MUNICIPAL COURT
OF TALLAHASSEE FOR UNLAWFUL ASSEMBLY, UNDER A MUNICIPAL ORDINANCE WHICH
INCORPORATES BY REFERENCE THE STATE UNLAWFUL ASSEMBLY STATUTE.  (FN1)
THE CONVICTIONS WERE AFFIRMED IN THE CIRCUIT COURT OF THE SECOND
JUDICIAL DISTRICT, LEON COUNTY, FLORIDA.  (FN2)  THE UNREPORTED OPINION
OF THAT COURT, A COPY OF WHICH, TAKEN FROM THE RECORD, IS ATTACHED TO
THIS CERTIFICATE AS AN APPENDIX, CONTAINS A STATEMENT OF THE FACTS ON
WHICH THE CONVICTIONS RESTED.  THE PETITIONERS SOUGHT CERTIORARI IN
THIS COURT, WHICH THE CITY OF TALLAHASSEE OPPOSED ON THE GROUND, INTER
ALIA, THAT THE JUDGMENT OF THE CIRCUIT COURT WAS NOT "RENDERED BY THE
HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE HAD," AS REQUIRED
BY 28 U.S.C. SEC. 1257.  THIS COURT GRANTED CERTIORARI 372 U.S. 963,
AND SUBSEQUENTLY DIRECTED COUNSEL TO FILE BRIEFS ON THE JURISDICTIONAL
ISSUE, WHICH COUNSEL HAVE DONE. 

THE QUESTIONS WHICH THIS COURT DESIRES TO CERTIFY ARE: 

1.  ON A TIMELY PETITION FOR WRIT OF CERTIORARI OR OTHER PROCESS,
DOES THE FLORIDA DISTRICT COURT OF APPEAL OR ANY OTHER COURT OF FLORIDA
HAVE JURISDICTION TO REVIEW A JUDGMENT OF THE CIRCUIT COURT AFFIRMING A
CONVICTION IN THE MUNICIPAL COURT OF A VIOLATION OF A MUNICIPAL
ORDINANCE WHICH INCORPORATES A STATE STATUTE BY REFERENCE, WHERE THE
QUESTIONS PRESENTED FOR REVIEW CONCERN THE FEDERAL CONSTITUTIONALITY OF
THE ORDINANCE ON ITS FACE AND AS APPLIED? 

2.  IF THE DISTRICT COURT OF APPEAL OR ANY OTHER COURT OF FLORIDA
DOES HAVE SUCH JURISDICTION AND HAD GRANTED REVIEW IN THIS CASE BY WAY
OF A WRIT OF CERTIORARI OR OTHER PROCESS, WOULD IT HAVE BEEN EMPOWERED
TO CONSIDER FULLY EACH OF THE FOLLOWING CONTENTIONS, ALL INDISPUTABLY
PROPERLY PRESERVED: 

(A)  "PETITIONERS WERE PEACEABLE AND ORDERLY AT ALL TIMES; HENCE,
THERE WAS NO EVIDENCE WHATSOEVER TO SUPPORT THE CONVICTIONS BELOW FOR
UNLAWFUL ASSEMBLY, AND THEREFORE PETITIONERS HAVE BEEN DENIED DUE
PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT"; 

(B)  "THE CONVICTIONS CONSTITUTED A VIOLATION OF PETITIONERS' RIGHTS
OF FREEDOM OF SPEECH AND FREEDOM OF ASSEMBLY AS GUARANTEED BY THE
FOURTEENTH AMENDMENT"; 

(C)  "THE ARRESTS AND CONVICTIONS HEREIN CONSTITUTED AN UNDUE BURDEN
ON INTERSTATE COMMERCE IN VIOLATION OF THE INTERSTATE COMMERCE CLAUSE
OF THE FEDERAL CONSTITUTION"; 

(D)  "THE ARRESTS AND CONVICTIONS HEREIN CONSTITUTED A DENIAL OF THE
EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT"? 

IF NOT, IN WHAT RESPECTS WOULD THE SCOPE OF REVIEW HAVE BEEN
LIMITED? 

THE CLERK OF THIS COURT IS DIRECTED TO TRANSMIT THIS CERTIFICATE,
SIGNED BY THE CHIEF JUSTICE AND UNDER THE OFFICIAL SEAL OF THE COURT,
TO THE SUPREME COURT OF FLORIDA, AND SIMULTANEOUSLY TO TRANSMIT COPIES
THEREOF TO THE ATTORNEYS FOR THE RESPECTIVE PARTIES. 

FN1  SECTION 23-38 OF THE TALLAHASSEE CODE, WHICH PROVIDES THAT IT
SHALL BE UNLAWFUL FOR ANY PERSON TO COMMIT AN ACT WHICH IS OR SHALL BE
RECOGNIZED BY THE LAWS OF THE STATE AS A MISDEMEANOR. 

CHAPTER 61-237, LAWS OF 1961, FLORIDA STATUTES SEC. 870.04 PROVIDES: 

"IF ANY NUMBER OF PERSONS, WHETHER ARMED OR NOT, ARE UNLAWFULLY,
RIOTOUSLY OR TUMULTUOUSLY ASSEMBLED IN ANY COUNTY, CITY OR
MUNICIPALITY, THE SHERIFF OR HIS DEPUTIES, OR ANY CONSTABLE OR JUSTICE
OF THE PEACE OF THE COUNTY, OR THE MAYOR, OR ANY COMMISSIONER,
COUNCILMAN, ALDERMAN OR POLICE OFFICER OF THE SAID CITY OR
MUNICIPALITY, OR ANY OFFICER OR MEMBER OF THE FLORIDA HIGHWAY PATROL,
SHALL GO AMONG THE PERSONS SO ASSEMBLED, OR AS NEAR TO THEM AS MAY BE
WITH SAFETY, AND SHALL IN THE NAME OF THE STATE COMMAND ALL THE PERSONS
SO ASSEMBLED IMMEDIATELY AND PEACEABLY TO DISPERSE; AND IF SUCH PERSONS
DO NOT THEREUPON IMMEDIATELY AND PEACEABLY DISPERSE, SAID OFFICERS
SHALL COMMAND THE ASSISTANCE OF ALL PERSONS IN SEIZING, ARRESTING AND
SECURING SUCH PERSONS IN CUSTODY; AND IF ANY PERSON PRESENT BEING SO
COMMANDED TO AID AND ASSIST IN SEIZING AND SECURING SUCH RIOTER OR
PERSONS SO UNLAWFULLY ASSEMBLED, OR IN SUPPRESSING SUCH RIOT OR
UNLAWFUL ASSEMBLY, REFUSES OR NEGLECTS TO OBEY SUCH COMMAND, OR, WHEN
REQUIRED BY SUCH OFFICERS TO DEPART FROM THE PLACE, REFUSES AND
NEGLECTS TO DO SO, HE SHALL BE DEEMED ONE OF THE RIOTERS OR PERSONS
UNLAWFULLY ASSEMBLED, AND MAY BE PROSECUTED AND PUNISHED ACCORDINGLY." 

THE STATE REFERS IN ITS BRIEF TO A TALLAHASSEE ORDINANCE SPECIFICALLY
PROHIBITING UNLAWFUL ASSEMBLY, WHICH IS ALSO INCLUDED IN THE RECORD BY
STIPULATION OF THE PARTIES.  THIS ORDINANCE IS SIMILAR IN SUBSTANCE TO
THE STATE STATUTE QUOTED ABOVE.  HOWEVER, ALL PARTIES SEEMINGLY HAVE
PROCEEDED ON THE PREMISE THAT THE PETITIONERS WERE CHARGED AND
CONVICTED ONLY UNDER THE GENERAL ORDINANCE WHICH INCORPORATED THE STATE
STATUTE.  THE CIRCUIT COURT PLAINLY DECIDED THE CASE ON THAT BASIS. 
SEE APPENDIX, POST, P. 139. 

FN2  THE PETITIONERS APPEALED THEIR CONVICTIONS DIRECTLY TO THE
SUPREME COURT OF FLORIDA.  THE SUPREME COURT RULED THAT IT LACKED
JURISDICTION AND ORDERED THE APPEAL TRANSFERRED TO THE CIRCUIT COURT. 
134 SO. 2D 228. 

AFTER THE CONVICTIONS WERE AFFIRMED IN THE CIRCUIT COURT AND PRIOR TO
THE FILING OF A PETITION FOR CERTIORARI IN THIS COURT, THE PETITIONERS
ATTEMPTED TO FILE, AND SUBSEQUENTLY WITHDREW, A PETITION FOR CERTIORARI
IN THE DISTRICT COURT OF APPEAL. 

                              APPENDIX. 

OPINION OF THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, LEON
COUNTY, FLORIDA.* 

*ENTERED AUGUST 16, 1962.  (FOOTNOTE SUPPLIED.) 

                         ORDER AFFIRMING JUDGMENTS. 

THIS IS AN APPEAL FROM CONVICTIONS IN THE MUNICIPAL COURT OF THE CITY
OF TALLAHASSEE, FLORIDA OF THE TEN APPELLANTS NAMED IN THE CAPTION WHO
WERE CHARGED WITH UNLAWFUL ASSEMBLY.  A FINE WAS ASSESSED AGAINST EACH
OF THEM WITH AN ALTERNATE JAIL SENTENCE. 

THE FORMAL CHARGE IS IN A SINGLE COUNT NAMING THE TEN APPELLANTS AND
THREE OTHERS (FN1) AS DEFENDANTS AND ALLEGES AN UNLAWFUL ASSEMBLY ON
JUNE 16, 1961 "IN THAT, THEY BEING MORE THAN THREE (3) PERSONS, MET
TOGETHER TO COMMIT A BREACH OF THE PEACE, ACTING TOGETHER AND
CONCERTEDLY TO OCCUPY AND CONTINUOUSLY OCCUPY CERTAIN CHAIRS AND
SEATING FACILITIES IN THE TALLAHASSEE MUNICIPAL AIRPORT, MAKING AND
CANCELLING GROUP AIRLINE RESERVATIONS ON THE TWO (2) OPERATING AIRLINE
SCHEDULES DEPARTING TALLAHASSEE ON SAID DATE, AND ON JUNE 15, 1961, AND
MEETING TOGETHER IN CONCERT ATTENDANT WITH CIRCUMSTANCES CALCULATED TO
EXCITE ALARM, ENDANGER THE PUBLIC PEACE AND EXCITE FEAR, AND IN SUCH
NATURE AS TO INSPIRE WELL-GROUNDED FEAR IN PERSONS OF REASONABLE
COURAGE, OF RIOT, OR OTHER BREACHES OF PUBLIC PEACE, AND WHILE SO
UNLAWFULLY ASSEMBLED" WERE COMMANDED BY A POLICE OFFICER OF THE CITY,
AFTER IDENTIFYING HIMSELF AS SUCH, TO IMMEDIATELY AND PEACEABLY
DISPERSE, AND THEY REFUSED OR NEGLECTED TO DO SO. 

THE APPELLANTS CONTEND THAT THE JUDGMENTS PURSUANT TO CONVICTIONS
VIOLATE THEIR RIGHTS GUARANTEED BY THE FLORIDA AND UNITED STATES
CONSTITUTIONS IN THAT THEY HAVE BEEN DENIED THE EQUAL PROTECTION OF THE
LAWS AND HAVE BEEN DEPRIVED OF LIBERTY OR PROPERTY WITHOUT DUE PROCESS
OF LAW.  THEY CONTEND THAT THE STATE STATUTE, CHAP. 61-237, LAWS OF
1961, (F.S. 870.04), (WHICH, BY REFERENCE ADOPTION IN A MUNICIPAL
ORDINANCE, (FN2) IS MADE AN ORDINANCE OF THE CITY OF TALLAHASSEE) IS
UNCONSTITUTIONAL AND VOID, EITHER ON ITS FACE OR AS IT HAS BEEN APPLIED
TO THE APPELLANTS IN THIS CASE. 

THE PERTINENT PORTIONS OF THE STATUTE, ADOPTED AS AN ORDINANCE, ARE: 

"IF ANY NUMBER OF PERSONS ...  ARE UNLAWFULLY, RIOTOUSLY OR
TUMULTUOUSLY ASSEMBLED IN ANY  ... CITY OR MUNICIPALITY  ...  ANY  ...
POLICE OFFICER OF SAID CITY OR MUNICIPALITY  ...  SHALL GO AMONG THE
PERSONS SO ASSEMBLED  ...  AND SHALL, IN THE NAME OF THE STATE COMMAND
ALL THE PERSONS SO ASSEMBLED IMMEDIATELY AND PEACEABLY TO DISPERSE; AND
IF SUCH PERSONS DO NOT THEREUPON IMMEDIATELY AND PEACEABLY DISPERSE,
SAID (OFFICER) SHALL COMMAND THE ASSISTANCE OF ALL PERSONS IN SEIZING,
ARRESTING AND SECURING SUCH PERSONS IN CUSTODY; AND IF ANY PERSON
PRESENT  ...  WHEN REQUIRED BY SUCH (OFFICER) TO DEPART FROM THE PLACE,
REFUSES OR NEGLECTS TO DO SO, HE SHALL BE DEEMED ONE OF ...  THE
PERSONS UNLAWFULLY ASSEMBLED AND MAY BE PROSECUTED AND PUNISHED
ACCORDINGLY." 

THE FACTS IN THE CASE ARE NOT IN DISPUTE AND SQUARELY PRESENT THE
QUESTION AS TO WHETHER OR NOT THE CONDUCT OF THE APPELLANTS WAS AN
EXERCISE BY THEM OF RIGHTS THEY HOLD UNDER STATE AND FEDERAL
CONSTITUTIONAL PROVISIONS, WHICH WOULD PRECLUDE THEIR PROSECUTION,
CONVICTION AND SENTENCE FOR UNLAWFUL ASSEMBLY IN THE TRIAL COURT. 

THE APPELLANTS ARE CLERGYMEN, TWO BEING RABBIS AND THE OTHERS BEING
ORDAINED MINISTERS OF SEVERAL PROTESTANT DENOMINATIONS.  THEY ARE
RESIDENTS OF NEW JERSEY, NEW YORK, MASSACHUSETTS OR CONNECTICUT.   SOME
OF THEM ARE OF THE WHITE RACE AND SOME ARE NEGROES.  ABOUT JUNE 12 OR
13, 1961 THEY, TOGETHER WITH EIGHT OTHER CLERGYMEN FROM THE SAME
GENERAL AREA, DEPARTED FROM WASHINGTON, D.C. BY INTERSTATE COMMON
CARRIER BUS FOR A SO-CALLED "FREEDOM RIDE" INTO VIRGINIA, THE
CAROLINAS, GEORGIA, AND FLORIDA.  THE BUS RIDE TERMINATED IN
TALLAHASSEE JUNE 15, 1961.  THE "FREEDOM RIDERS" LEFT THEIR BUSES AT
THE GREYHOUND BUS TERMINAL THERE AND WENT INTO THE TERMINAL LUNCH ROOM
TO OBTAIN FOOD WHICH WAS SERVED THEM. 

THIS TRIP WAS SPONSORED AND AT LEAST PARTIALLY FINANCED BY AN
ORGANIZATION KNOWN AS CORE (CONGRESS ON RACIAL EQUALITY) WHICH HAS BEEN
AGGRESSIVE IN PROMOTING RACIAL INTEGRATION AND DESEGREGATION.  THE TRIP
WAS WELL PUBLICIZED, HAVING BEEN GIVEN WIDE COVERAGE IN ALL NEWS MEDIA
INCLUDING RADIO AND TELEVISION.  THE TIME AND PLACE OF ARRIVAL IN
TALLAHASSEE WAS HERALDED AND WELL KNOWN. 

THE PURPOSES OF THE "FREEDOM RIDE", AS STATED BY APPELLANT COLLIER,
WHO WAS THE SPOKESMAN FOR THE GROUP, WERE TWO-FOLD:  (1)  TO ASCERTAIN
WHETHER OR NOT THERE WERE FACILITIES AVAILABLE ON AN INTEGRATED BASIS
TO INTERSTATE PASSENGERS IN WAITING ROOMS, IN REST ROOMS, IN EATING
FACILITIES IN THE TERMINALS THROUGH WHICH THEY WOULD PASS; AND (2) TO
BEAR WITNESS AS MINISTERS, RABBIS AND CLERGYMEN TO THE STRUGGLE TO
OBTAIN THOSE RIGHTS "GUARANTEED US BY THE CONSTITUTION." 

SHORTLY PRIOR TO THE TIME THE BUSES BEARING THE "FREEDOM RIDERS" WERE
SCHEDULED TO ARRIVE AT ABOUT NOON ON JUNE 15, THERE HAD GATHERED IN THE
VICINITY OF THE BUS STATION A NUMBER OF PERSONS AND GROUPS OF PERSONS. 
LAW ENFORCEMENT OFFICERS, INCLUDING CITY POLICE, HAD BEEN DISPATCHED TO
THE AREA TO PREVENT ANY DISTURBANCE.  IT WAS SUSPECTED THAT RESENTMENT
AGAINST THE "FREEDOM RIDERS" MIGHT RESULT IN SOME ATTEMPTS AT VIOLENCE
TOWARD THEM OR PRECIPITATE OTHER DISORDERS.  WHEN THE BUSES ARRIVED,
LAW ENFORCEMENT PERSONNEL MOVED IN AND GAVE PROTECTION TO THE
PASSENGERS AS THEY LEFT THE BUS AND ENTERED THE LUNCH ROOM IN THE
TERMINAL.  APPARENTLY THEY WERE SERVED IN THE LUNCH ROOM UNDER
CIRCUMSTANCES AND POLICIES SATISFACTORY TO THEM. 

IN APPROXIMATELY AN HOUR AFTER ARRIVAL AT THE BUS TERMINAL THE
EIGHTEEN "FREEDOM RIDERS" PROCEEDED TO THE TALLAHASSEE MUNICIPAL
AIRPORT OSTENSIBLY FOR THE PURPOSE OF BOARDING A 3:25 P.M. EASTERN AIR
LINES PLANE FOR PASSAGE TO WASHINGTON, NEWARK, OR NEW YORK.  THEY WERE
TRANSPORTED TO THE AIRPORT IN PRIVATE CARS PRESUMABLY FURNISHED BY
LOCAL SYMPATHIZERS WITH THEIR OBJECTIVES. 

UPON ARRIVAL AT THE AIRPORT THEY FOUND THAT THE RESTAURANT THERE HAD
BEEN CLOSED.  WHEN THE TIME APPROACHED FOR ARRIVAL OF THE 3:25 PLANE
THE TEN APPELLANTS CANCELLED THE RESERVATION THEY HAD PREVIOUSLY MADE
FOR THE FLIGHT.  THE OTHER EIGHT BOARDED THE PLANE WHEN IT ARRIVED AND
DEPARTED FOR THEIR DESTINATIONS IN THE EAST. 

AT THAT TIME, THE AIRPORT ARRANGEMENT PROVIDED SEPARATE WAITING
ROOMS, OR AREAS, FOR WHITE AND NEGRO; ALSO SEPARATE REST ROOMS; AND
SEPARATE AREAS FOR SERVING FOOD, THE WHITE AREA BEING A GLASSED-IN
PLACE AND THE NEGRO CONSISTING OF A COUNTER WITH SEVERAL STOOLS. 
HOWEVER, AS MENTIONED BEFORE, THE EATING SERVICE HAD BEEN DISCONTINUED
BY THE CLOSING OF THE RESTAURANT FACILITIES.  A SANDWICH VENDING
MACHINE WAS IN THE LOBBY, BUT THE PRICES ON SAME HAD BEEN MARKED UP
FROM PREVIOUS PRICES. 

THE APPELLANTS STAYED TOGETHER IN A MORE OR LESS COMPACT GROUP IN THE
LOBBY AREA MOST OF THE TIME AND NO ATTEMPT WAS MADE TO ENFORCE
SEPARATION OF THE RACES IN THE WAITING ROOM.  REST ROOMS WERE USED BY
THEM WITHOUT OBSERVING THE DESIGNATION OF THE SEGREGATED FACILITIES. 

AFTER CANCELLING THEIR RESERVATIONS FOR THE 3:25 P.M. FLIGHT THEY
SOUGHT AND ULTIMATELY OBTAINED RESERVATIONS FOR A FLIGHT THE NEXT
MORNING AT 8:25 ON AN E.A.L. PLANE.  THEY REMAINED IN THE AIRPORT UNTIL
ABOUT 11:00 P.M. THAT EVENING FOR THE PURPOSE OF OBSERVING IF THE
RESTAURANT WOULD OPEN AND SERVICE BE GRANTED TO THEM.  THE RESTAURANT
REMAINED CLOSED.   LAW ENFORCEMENT OFFICERS, INCLUDING CITY POLICE,
WERE DETAILED TO KEEP ORDER.  THE ACTIVITIES AND OBJECTIVES OF THE
APPELLANTS HAD BEEN THE SUBJECT OF NEWS REPORTING AND GROUPS OF PEOPLE
WERE SEEN TO BE GATHERING OR ATTEMPTING TO GATHER IN THE VICINITY OF
THE AIRPORT.  THERE WERE CRITICAL AND HOSTILE COMMENTS MADE ABOUT THE
APPELLANTS.  THE POLICE TURNED AWAY SOME OF THOSE GATHERING WHEN IT WAS
APPARENT SUCH PERSONS HAD NO AIRPORT BUSINESS OR INTEREST.  PERSONS
WERE EVEN SCREENED AT THE ENTRANCE AND TURNED AWAY BY OFFICERS IF THEY
HAD NO BUSINESS TO TRANSACT AT THE AIRPORT.    THE CHIEF OF POLICE
ADVISED THE APPELLANTS THAT THE AIRPORT TERMINAL WOULD CLOSE FOR THE
NIGHT AT APPROXIMATELY 11:45 P.M. AND A SPOKESMAN FOR APPELLANTS
REQUESTED PROTECTION AS THEY MOVED FROM THE AIRPORT INTO THE CITY AND
ALSO ON THE RETURN TO THE AIRPORT THE NEXT MORNING.  SUCH PROTECTION BY
ESCORT OF LAW ENFORCEMENT OFFICERS WAS PROVIDED. 

THE APPELLANTS THUS LEFT THE AIRPORT AT ABOUT 11:00 P.M. ON THE 15TH
TO RETURN THE NEXT MORNING PRIOR TO THE SCHEDULED DEPARTURE AT 8:25
A.M. OF THE PLANE ON WHICH THEY HAD OBTAINED RESERVATIONS.  THEY WERE
GIVEN ESCORT SECURITY PROTECTION ON BOTH THE OCCASIONS OF LEAVING AND
RETURNING TO THE TERMINAL. 

THE RESTAURANT WAS ALSO CLOSED ON THE MORNING OF JUNE 16.  AT 8:15
A.M. ALL TEN OF THE APPELLANTS CANCELLED THEIR RESERVATIONS FOR THE
8:25 FLIGHT AND REMAINED IN THE WAITING ROOM AFTER THAT FLIGHT HAD
DEPARTED.  AT 8:20 A.M. THEY SOUGHT, AND ULTIMATELY OBTAINED,
RESERVATIONS ON A NATIONAL AIRLINES FLIGHT SCHEDULED TO DEPART AT 1:47
P.M. THAT DAY, BUT CANCELLED JUST PRIOR TO NOON. 

DURING THESE PERIODS THERE CONTINUED TO BE MOVEMENTS AND GATHERINGS
OF GROUPS OF PEOPLE IN CARS AND THERE WAS A HOSTILITY AND OPEN
RESENTMENT AGAINST THE CONDUCT AND ATTITUDES OF THE APPELLANTS.  A
CONSIDERABLE NUMBER OF POLICE, SHERIFF'S DEPUTIES AND HIGHWAY PATROLMEN
HAD BEEN DETAILED TO PREVENT DISORDER.  CITY, COUNTY AND STATE
OFFICIALS, INCLUDING THE GOVERNOR, WERE APPREHENSIVE AND MOVED TO
PROVIDE NECESSARY LAW ENFORCEMENT PERSONNEL TO PRESERVE ORDER. 

AT ABOUT 12:15 P.M., MR. JAMES MESSER, JR., CITY ATTORNEY OF
TALLAHASSEE AND A SPECIAL POLICE OFFICER OF THE CITY, AFTER CONFERRING
WITH THE MAYOR AND CHIEF OF POLICE OF THE CITY, APPROACHED THE
APPELLANTS WHO WERE TOGETHER AND INQUIRED IF THERE WAS A LEADER OF THE
GROUP.  APPELLANT COLLIER AROSE AND IDENTIFIED HIMSELF AND ASSUMED TO
ACT AS SPOKESMAN.  MR. MESSER IDENTIFIED HIMSELF AND HIS OFFICIAL
POSITIONS, EXHIBITING HIS POLICE BADGE.  OTHERS IN THE GROUP GATHERED
AROUND MR. MESSER AND REV. COLLIER AND MR. MESSER READ TO THEM A
PROCLAMATION.  HE STATED THAT THE ASSEMBLY OF THE APPELLANTS AT THE
MUNICIPAL AIRPORT OF TALLAHASSEE WILL TEND TO CREATE A DISTURBANCE OR
INCITE A RIOT OR DISORDERLY CONDUCT WITHIN THE CITY OF TALLAHASSEE AT
ITS MUNICIPAL AIRPORT OVER WHICH THE CITY HAD JURISDICTION.  HE
MENTIONED INCIDENTS OF THE PREVIOUS NIGHT AND FEARS OF MORE UNREST.  HE
THEN COMMANDED THEM IN THE NAME OF THE STATE AND CITY TO IMMEDIATELY
AND PEACEABLY DISPERSE, AND EXPLAINED THAT SUCH MEANT FROM THE AIRPORT
PROPERTY.  HE THEN ADDED THAT FAILURE TO SO DISPERSE WOULD RESULT IN
ARREST FOR UNLAWFUL ASSEMBLY.  COLLIER ASSERTED THAT THEY WERE
INTERSTATE PASSENGERS, TO WHICH MESSER REPLIED THAT HE DID NOT CONSIDER
THEM TO BE BONA FIDE PASSENGERS IN VIEW OF THEIR RESERVATION
CANCELLATIONS. 

SEVERAL LOCAL SYMPATHIZERS WITH THE APPELLANTS DISPERSED, BUT
APPELLANTS FAILED TO DO SO.  AFTER ABOUT 1 1/2 MINUTES, MR. MESSER
TURNED TO THE CHIEF OF POLICE AND REMARKED "CHIEF, YOU CAN CARRY OUT
YOUR ORDERS."  THE APPELLANTS WERE ARRESTED AND TAKEN INTO CUSTODY. 

THE APPELLANTS TAKE THE VIEW THAT THE SEGREGATION PRACTICES WITH
REGARD TO WAITING ROOMS, REST ROOM FACILITIES, AND RESTAURANT OR EATING
FACILITIES AT THE AIRPORT WERE VIOLATIVE OF CONSTITUTIONAL GUARANTEES
OF EQUAL PROTECTION OF THE LAW.  THEY WOULD ALSO INJECT INTO THE CASE
THE INSTALLATION OF SANDWICH AND CIGARETTE MACHINES, AT OR JUST PRIOR
TO THEIR ARRIVAL, WHICH INFLATED THE PRICES OF MERCHANDISE VENDED TO
DOUBLE WHAT IT HAD BEEN.  THE CLOSING OF THE RESTAURANT ON THE DAY OF
THEIR ARRIVAL AND ITS OPENING SHORTLY AFTER THEIR DEPARTURE IS VIEWED
AS AN IMPORTANT FACTOR. 

THESE FACTS ARE, IN THE VIEW OF THIS COURT, NOT AT ALL SIGNIFICANT IN
THE LEGAL PROBLEMS INVOLVED IN THE CHARGE AGAINST THE APPELLANTS AND
THE DISPOSITION OF SUCH CHARGE BY THE TRIAL COURT. 

THE MUNICIPALITY OF TALLAHASSEE OPERATES IN A PROPRIETARY CAPACITY
AND IN A GOVERNMENTAL CAPACITY.   AMONG ITS PROPRIETARY FUNCTIONS IS
THE OWNERSHIP AND OPERATION OF A MUNICIPAL AIRPORT AND SUPERVISION OVER
THE CONCESSIONS THERE.  ASSUMING, BUT NOT DECIDING, THAT ITS POLICIES
OF SEGREGATION OF THE RACES IN ITS FACILITIES ARE UNLAWFUL AND DID
CONSTITUTE A VIOLATION OF SOME DUTY TO THE APPELLANTS IF ENFORCED
AGAINST THEM AND FURTHER ASSUMING, WITHOUT DECIDING, THAT THE CLOSING
OF THE RESTAURANT UNDER THE CIRCUMSTANCES VIOLATED SOME DUTY TO THEM,
DO SUCH CIRCUMSTANCES JUSTIFY A CONCERTED PROTEST DEMONSTRATION BY
APPELLANTS OF THEIR VIEWS AND CONVICTIONS OVER A PROTRACTED PERIOD OF
TIME DURING WHICH TENSIONS AND TEMPERS RISE IN THE COMMUNITY WHICH
THREATEN TO ERUPT INTO DISORDER AND THUS RENDER THE CITY, IN ITS
GOVERNMENTAL CAPACITY, POWERLESS TO TERMINATE THE DEMONSTRATION IN THE
EXERCISE OF ITS POLICE POWER? 

STATED ANOTHER WAY, MAY NOT A LAWFUL ASSEMBLY FOR THE PURPOSE OF
PROTESTING AND DEMONSTRATING OPPOSITION TO A COURSE OF POLICY PRACTICED
BY THE MUNICIPALITY BECOME AN UNLAWFUL ASSEMBLY WHEN PURSUED TO
UNREASONABLE LENGTHS IMPOSING UNREASONABLE BURDENS ON OTHERS, AFTER THE
LAWFUL OBJECTIVES OF THE DEMONSTRATION HAD BEEN FAIRLY ACCOMPLISHED? 

IT IS FUNDAMENTAL THAT OUR CONSTITUTIONS ACCORD TO THE CITIZEN OF THE
UNITED STATES THE RIGHT OF FREEDOM OF SPEECH AND OF ASSEMBLY AND TO
PEACEABLY PETITION FOR A REDRESS OF GRIEVANCES.  SUCH FREEDOMS ARE
JEALOUSLY GUARDED AND WHEN EXERCISED IN GOOD FAITH AND IN GOOD ORDER
MAY NOT BE LAWFULLY INTERFERED WITH BY GOVERNMENTAL ACTION.  HOWEVER,
IT IS NOT A LICENSE TO TAKE INTO ONE'S OWN HANDS THE ENFORCEMENT OF LAW
OR BY EXCESSIVE HARASSMENT, EFFECT COERCION AND ACCEPTANCE OF ONE'S
CONVICTIONS AND INTERPRETATIONS OF LEGAL RIGHTS BY GOVERNMENTAL
ENTITIES WHOSE POLICIES ARE IN CONFLICT.  SUCH PROCEDURES WHOLLY IGNORE
THE VERY MACHINERY PROVIDED BY THE CONSTITUTIONS AND LAWS OF THE NATION
AND STATE FOR THE DECLARING, SECURING AND ENFORCEMENT OF CONSTITUTIONAL
AND OTHER LEGAL RIGHTS.  IT IS THE COURTS, BOTH STATE AND FEDERAL, TO
WHOM RESORT IS READILY AVAILABLE FOR CITIZENS TO SEEK RECOGNITION AND
ENFORCEMENT OF LEGAL RIGHTS AND IMMUNITIES.  THAT SUCH COURTS MAY NOT
MOVE AS SWIFTLY AS THE INDIVIDUAL WOULD WISH DOES NOT AUTHORIZE PURSUIT
OF PERSONAL MEANS WHICH UNNECESSARILY CREATE OR THREATEN PUBLIC
DISTURBANCE OR DISORDER, OR WHICH SUBSTANTIALLY INTERFERE WITH NORMAL,
ORDERLY FUNCTIONS OF A PUBLIC FACILITY. 

SUCH A PROCEDURE IS A FORM OF ANARCHY WHICH, IF IT BECOMES AN
ACCEPTED PRACTICE, CAN HAVE ONLY THE EFFECT OF SERIOUSLY WEAKENING
ORDERLY GOVERNMENT. 

THE APPELLANTS, PRIOR TO THE READING OF THE RIOT ACT TO THEM, HAD
ACHIEVED THEIR ANNOUNCED OBJECTIVES.  THEY HAD OBSERVED BOTH AT THE BUS
STATION AND THE AIRPORT THE INTEGRATION OR LACK OF IT OF THE WAITING
ROOM, REST ROOM AND RESTAURANT FACILITIES.  THEY HAD VERY EFFECTIVELY
BORNE WITNESS AS CLERGYMEN AND OTHERWISE OF THEIR SYMPATHY WITH THE
STRUGGLE TO OBTAIN DESEGREGATION OF THE VARIOUS FACILITIES OF
INTERSTATE TRAVEL. 

TO ACCOMMODATE AND FACILITATE THOSE LEGITIMATE OBJECTIVES THE LAW
ENFORCEMENT AGENCIES OF CITY, COUNTY AND STATE HAD GIVEN PROTECTION
AGAINST POTENTIAL VIOLENCE OR OTHER DISORDER FROM GROUPS OR INDIVIDUALS
WHO RESENTED THE ACTIVITIES OF THE APPELLANTS.  THIS PROTECTION WAS
AFFORDED AT THE BUS STATION, AT THE AIRPORT ON THE AFTERNOON OF JUNE
15, ON THE EVENING OF JUNE 15 WHEN THE APPELLANTS LEFT THE AIRPORT TO
COME INTO TOWN AND ON THE FOLLOWING MORNING WHEN THEY RETURNED TO THE
AIRPORT PURPORTEDLY TO TAKE AN EARLY PLANE.  HOWEVER, INSTEAD OF USING
THE RESERVATIONS THEY HAD OBTAINED THEY MADE A CANCELLATION.  THIS WAS
THRICE THEY HAD MADE LAST MINUTE CANCELLATIONS OF RESERVATIONS FOR THE
SOLE REASON THAT THEY WISHED TO EAT IN THE RESTAURANT, WHICH WAS
CLOSED.  IN THE MEANTIME THEIR CONDUCT AND PERSISTENCE WAS AROUSING
INCREASED RESENTMENT AND ANGER IN THE COMMUNITY WITH THREATS OF
VIOLENCE AND DISORDER TOWARD THE APPELLANTS. 

OBVIOUSLY, THE CONDUCT OF APPELLANTS HAD REVEALED A PATTERN.  THEY
WOULD MAKE RESERVATIONS FOR TRAVEL, WAIT IN THE LOBBY UNTIL JUST BEFORE
THE PLANE THEY WERE SCHEDULED TO TAKE ARRIVED AND THEN CANCEL, MAKE
RESERVATIONS ON A LATER FLIGHT AND THEN AGAIN CANCEL AT THE LAST
MINUTE, AT ALL TIMES REMAINING IN THE AIRPORT BUT NEVER TAKING A
PLANE.  THE EFFECT IS OBVIOUS.  THE SEATS AND OTHER FACILITIES ARE
OCCUPIED BY THEM AND THEIR USE DENIED TO THOSE WHO ACTUALLY WISHED TO
TRAVEL.  THE USE OF REST ROOMS AND WASH ROOMS BY THEM PARTAKES MORE OF
LODGING THAN A COMFORT FEATURE FOR THOSE WHOSE SOLE PURPOSE IS SOME
AIRPORT BUSINESS.  THE RESERVATION OF SPACE AND LAST MINUTE
CANCELLATIONS PREVENTED THE USE OF THAT SPACE OF THE FLIGHTS INVOLVED,
RESULTING IN LOSS AND INCONVENIENCE TO THE AIR LINE INVOLVED AND
PROBABLE DENIAL TO OTHER WOULD-BE TRAVELERS OF THE USE OF THAT SPACE. 
THE SOLE PURPOSE OF SUCH A COURSE OF HARASSMENT WAS TO GOAD THE
MUNICIPALITY AND ITS RESTAURANT LESSEE TO OPEN THE RESTAURANT AND
GRATIFY THE APPELLANTS' WISHES THAT THEY BE SERVED IN THE STYLE AND
MANNER THEY DEEMED TO BE THEIR RIGHT. 

CONTROVERSIES BETWEEN CITIZENS AND GOVERNMENTAL UNITS ARE NOT
UNIQUE.  IN NEARLY EVERY INSTANCE THERE IS A CONFLICT IN WHAT THE
CITIZEN CONTENDS HE HAS A RIGHT TO CLAIM AND THE GOVERNMENTAL ENTITY
WHICH WOULD DENY THE VALIDITY OF SUCH CLAIM.  THE CITIZEN MAY FREELY
EXPRESS HIS VIEWS AND SEEK TO CULTIVATE CONVERTS TO THEM WITH A VIEW OF
BRINGING MORAL OR POLITICAL PRESSURES ON THE OFFICERS OF THE PUBLIC
BODY TO ACCORD HIS DEMANDS.  HOWEVER, SUCH MEANS MUST BE EXERCISED IN A
MANNER THAT IS REASONABLE AND NOT HARMFUL TO THE RIGHTS OF OTHERS OR
THE PEACE AND GOOD ORDER OF THE COMMUNITY.  ESPECIALLY IS THIS TRUE
WHEN THE CONTROVERSY IS ONE OF PUBLIC INTEREST IN WHICH THERE ARE
STRONG AND EMOTIONAL FEELINGS ON THE PART OF A SUBSTANTIAL NUMBER OF
PERSONS IN THE COMMUNITY. 

THE COURTS, BOTH STATE AND FEDERAL, ARE OPEN TO RESOLVE CONTROVERSIES
ON CONSTITUTIONAL ISSUES IN DULY INSTITUTED AND PROCESSED CIVIL
ACTIONS.  INDEED, THE VERY ISSUE IN THE DEMONSTRATIONS OF THE
APPELLANTS WAS SUBSEQUENTLY PRESENTED TO AND ADJUDICATED BY THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA.  BROOKS, ET
AL. V. TALLAHASSEE, 202 FED. SUPP. 56.  WHEN CITIZENS PRESS THEIR
DEMONSTRATIONS IN BEHALF OF A CAUSE (HOWEVER WORTHY THEY DEEM THEIR
OBJECTIVES TO BE) BEYOND THE BOUNDS OF FULLY AND EFFECTIVELY DELIVERING
THEIR MESSAGE AND REACH THE STAGE THAT THEY MATERIALLY AND HARMFULLY
INTERFERE WITH THE ORDERLY BUSINESS AND LAWFUL ACTIVITIES OF OTHERS,
WHO ARE ACTING IN PUBLIC OR PRIVATE CAPACITIES, THEN THE CONDUCT IS
DISORDERLY AND ASSEMBLY FOR CARRYING IT OUT IS UNLAWFUL.  SUCH WAS THE
CASE HERE. 

THE JUDGMENTS APPEALED FROM ARE HEREBY AFFIRMED. 

AFFIRMED.  BEN C. WILLIS, CIRCUIT JUDGE. 

FN1  OF THESE THREE ONE WAS ACQUITTED AND THE OTHER TWO WERE GRANTED
A NOLLE PROSEQUI.  (ORIGINAL FOOTNOTES RENUMBERED.) 

FN2  SEC. 23-38, TALLAHASSEE CODE, PROVIDES THAT IT SHALL BE UNLAWFUL
FOR ANY PERSON TO COMMIT ANY ACT WHICH IS OR SHALL BE RECOGNIZED BY THE
LAWS OF THE STATE AS A MISDEMEANOR.  THE PENALTY IS A MAXIMUM FINE OF
$500.00 OR 60 DAYS IMPRISONMENT OR BOTH. 
..END :











CHICAGO & EASTERN ILLINOIS RAILROAD CO. V. UNITED STATES 375 U.S. 150 


NO. 275.  DECIDED DECEMBER 2, 1963.  - AFFIRMED. 


THE INTERSTATE COMMERCE COMMISSION ORDERED APPELLANTS TO CANCEL A
JOINT BARGE-RAIL RATE OF $3.36 PER NET TON, IN MINIMUM LOTS OF 5,000
NET TONS, FOR THE MOVEMENT OF BITUMINOUS COAL FROM HUNTINGTON, W.VA.,
VIA MOUNT VERNON, IND., TO THE CHICAGO, ILL., DISTRICT, ON THE GROUND
THAT THE RATE WAS NONCOMPENSATORY AND, THEREFORE, UNJUST AND
UNREASONABLE UNDER SEC. 1(5) OF THE INTERSTATE COMMERCE ACT.  A THREE
JUDGE FEDERAL DISTRICT COURT DISMISSED APPELLANTS' SUIT TO SET ASIDE
THE ORDER, AND APPELLANTS APPEALED DIRECTLY TO THIS COURT.  HELD:  THE
JUDGMENT IS AFFIRMED. 

CHICAGO & EASTERN ILLINOIS RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO ADD THE BALTIMORE AND OHIO RAILROAD COMPANY ET AL., AS
PARTIES APPELLEE, IS GRANTED.   THE MOTIONS TO AFFIRM ARE GRANTED AND
THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

IN THE TRANSPORTATION ACT OF 1940 CONGRESS AMENDED THE INTERSTATE
COMMERCE ACT TO AUTHORIZE THE INTERSTATE COMMERCE COMMISSION TO
REGULATE RATES OF INTERSTATE WATER CARRIERS AS WELL AS OF RAILROADS AND
MOTOR CARRIERS.  54 STAT. 929, 49 U.S.C. SEC. 901 ET SEQ. AT THE TIME
THE ACT WAS PASSED THERE WAS ACTIVE OPPOSITION IN CONGRESS FROM THOSE
WHO FEARED THAT THE COMMISSION IN EXERCISING THE POWER GRANTED IT WOULD
BE TOO "RAILROAD-MINDED."  84 CONG.  REC. 5965; SEE ALSO ID., AT 5880
5883.  FOR THIS REASON, AS WAS POINTED OUT IN INTERSTATE COMMERCE
COMM'N V. MECHLING, 330 U.S. 567, 574-577, AND INTERSTATE COMMERCE
COMM'N V. INLAND WATERWAYS CORP., 319 U.S. 671, 692 (DISSENTING
OPINION), THE DRAFTSMEN OF THE LEGISLATION SPECIFICALLY WROTE INTO THE
ACT THE "NATIONAL TRANSPORTATION POLICY," 54 STAT. 899, 49 U.S.C.
PRECEDING SEC. 1, MAKING EXPLICIT THE COMMAND OF CONGRESS THAT THERE
SHOULD BE A "FAIR AND IMPARTIAL REGULATION OF ALL MODES OF
TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO ADMINISTERED
AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF EACH."  IN THE
MECHLING CASE, DECIDED IN 1947, AND SEVERAL TIMES IN RECENT YEARS THIS
COURT AND DISTRICT COURTS HAVE HAD TO PROTECT INLAND BARGE LINES FROM
COMMISSION ACTION WHICH WOULD HAVE FRUSTRATED THE INTENT OF CONGRESS TO
SECURE FOR THEM THE BENEFIT OF THE INHERENT ADVANTAGES OF THEIR LOW
COST MODE OF CARRIAGE.  SEE GENERALLY ARROW TRANSPORTATION CO. V.
SOUTHERN R. CO., 372 U.S. 658, 673 (DISSENTING OPINION).  SOMETIMES THE
COMMISSION HAS USED PROCEDURAL DELAYING DEVICES TO DENY BARGE LINES
THEIR INHERENT ADVANTAGE OVER RAILROADS, SEE ARROW TRANSPORTATION CO.
V. UNITED STATES, 176 F. SUPP. 411 (D.C.N.C. ALA.), AFF'D SUB NOM.
STATE CORPORATION COMM'N V. ARROW TRANSPORTATION CO., 361 U.S. 353,
(FN1) AGAIN, THE COMMISSION HAS TAKEN AWAY THE INHERENT ADVANTAGE OF
BARGE LINES THROUGH "THE DEVICE OF A JOINT RATE ALLOWED CARRIERS BY
RAIL BUT DENIED CARRIERS BY WATER," SEE DIXIE CARRIERS, INC., V. UNITED
STATES, 351 U.S. 56, 59.  SOMETIMES, AS IN THE PRESENT CASE, THE
COMMISSION HAS RESORTED TO USE OF INADEQUATE OR OBSCURE FINDINGS OF
FACT.  SEE, E.G., INTERSTATE COMMERCE COMM'N V. MECHLING, 330 U.S. 567;
SEE ALSO MECHLING BARGE LINES, INC., V. UNITED STATES, 368 U.S. 324,
331 (DISSENTING OPINION).  (FN2)  AND BARGE LINES HAVE BEEN DENIED THE
BENEFIT OF THEIR INHERENT ADVANTAGE WHEN RAILROAD RATES CHALLENGED AND
LATER FOUND TO BE UNLAWFUL HAVE BEEN PERMITTED TO TAKE EFFECT BECAUSE
OF THE LONG DELAY OF THE COMMISSION IN PASSING UPON THEIR
UNLAWFULNESS.  (FN3) 

THEREFORE IT MAY BE SIGNIFICANT THAT THE COMMISSION IN THE PRESENT
CASE, AT THE INSTANCE OF THE LARGE EASTERN RAILROADS AND WITHOUT
FINDING BASIC FACTS TO SUPPORT ITS CONCLUSION, DISALLOWED AS
NONCOMPENSATORY A PROPOSED JOINT RATE OF A SMALL RAILROAD AND A BARGE
LINE WHICH WOULD GIVE SHIPPERS OF COAL FROM WEST VIRGINIA AND EASTERN
KENTUCKY TO CHICAGO THE ADVANTAGE OF A RATE APPRECIABLY LESS THAN THAT
CHARGED BY THE EASTERN RAILROADS FOR THE SAME HAUL.  315 I.C.C. 129. 
IN DOING THIS THE COMMISSION DENIES THE SMALL RAILROAD THE RIGHT TO
SHIP COAL FOR A DIVISION OF $2.04 PER TON IN A BARGE-RAIL RATE AND
LEAVES IT WITH NO ALTERNATIVE, IF IT WANTS THIS BUSINESS, BUT TO ACCEPT
A DIVISION OF $1.66 PER TON FOR A SUBSTANTIALLY IDENTICAL HAUL IN
COMBINATION WITH ONE OF THE LARGE EASTERN RAILROADS.  THE OBSCURE
REPORT OF THE COMMISSION LEAVES AN IMPRESSION THAT ITS ORDER MAY, IN
VIOLATION OF THE CONGRESSIONAL WILL, HAVE NULLIFIED AN INHERENT
ADVANTAGE OF THE BARGE LINE AND THE COOPERATING RAILROAD.  IT IS TRUE
THAT THE COMMISSION CLEARLY FOUND AS AN ULTIMATE FACT THAT THE JOINT
BARGE-RAIL RATE WAS NONCOMPENSATORY, AND ALSO SET FORTH A SERIES OF
FIGURES WHICH IT SAID REPRESENTED ELEMENTS OF COST AND ADDED THEM
TOGETHER TO OBTAIN A FIGURE 5.6 CENTS PER TON HIGHER THAN THE PROPOSED
RATE.  I HAVE CHECKED THE COMMISSION'S ADDITION, AND FIND IT CORRECT. 
BUT WHEN I TURN TO WHAT SHOULD BE THE BASIC FINDINGS OF FACT TO SUPPORT
THE ACCURACY OF THESE FIGURES, ANY ILLUSORY CLARITY IN THE COMMISSION'S
REPORT VANISHES.  I HAVE EXAMINED THE REPORT WITH ALL THE CARE OF WHICH
I AM CAPABLE IN AN EFFORT TO DETERMINE WHETHER ITS ULTIMATE CONCLUSION
IS SUPPORTED BY SUBSTANTIAL EVIDENCE.  I AM COMPELLED TO SAY THAT THE
COMMISSION COULD HAVE INFORMED ME JUST AS WELL IF IT HAD WRITTEN ITS SO
CALLED FINDINGS IN ANCIENT SANSKRIT.  I GET NO MORE ENLIGHTENMENT FROM
THE FINDINGS OF FACT AND LAW OF THE DISTRICT COURT WHICH LEFT THIS
COMMISSION ORDER STANDING ON THE LEGAL ASSUMPTION, PLAINLY ERRONEOUS
UNDER DECISIONS OF THIS COURT AS I SHALL LATER POINT OUT, THAT THE
COMMISSION'S ULTIMATE CONCLUSION WAS ENOUGH, WITHOUT THE SUPPORT OF
BASIC FINDINGS OF FACT.  NOR HAVE THE LABORED AND AT TIMES INCONCISTENT
EFFORTS OF GOVERNMENT COUNSEL AND COUNSEL FOR THE EASTERN RAILROADS
BEEN SUCCESSFUL IN TRANSFORMING THE COMMISSION'S "FINDINGS" INTO
MEANINGFUL ENGLISH.  NEVERTHELESS, OUR COURT APPROVES BOTH THE ACTION
OF THE COMMISSION AND THE RULING OF THE DISTRICT COURT WITHOUT EVEN
PERMITTING THE PROPONENTS OF THE BARGE-RAIL RATE TO BE HEARD IN ORAL
ARGUMENT.  WHILE SUCH SUMMARY TREATMENT OFTEN IS WARRANTED, (FN4) I AM
CONSTRAINED TO SAY THAT IN THE PRESENT CASE IT IS SO UNJUSTIFIED AS TO
DENY THE RIGHT OF DIRECT APPEAL FROM THE DISTRICT COURT WHICH CONGRESS
AUTHORIZED, SEE 28 U.S.C. SEC. 1253, AND WHICH SHOULD NEVER BE TREATED
LIGHTLY SINCE IT MAKES OURS THE ONLY EXISTING COURT OF REVIEW.  I AM
SORRY THAT THE COURT HAS NOT CHOSEN TO WRITE AN OPINION TO SUPPORT ITS
AFFIRMANCE.  I MUST ADMIT FOR MYSELF THAT I WOULD FIND THE TASK
IMPOSSIBLE AND THE ATTEMPT EMBARRASSING. 

SUMMARY AFFIRMANCE IS PARTICULARLY OUT OF PLACE HERE BECAUSE THE
DISTRICT COURT PROCEEDED ON A CLEARLY INCORRECT ASSUMPTION OF LAW, ONE
CONTRARY ON ITS FACE TO THE COMMAND OF CONGRESS IN THE ADMINISTRATIVE
PROCEDURE ACT, AND ONE WHICH, IN BEING APPROVED HERE, APPARENTLY
OVERRULES A LINE OF PREVIOUS DECISIONS OF THIS COURT.  THE DISTRICT
COURT RULED THAT "THE COMMISSION IS ONLY REQUIRED TO SET OUT ULTIMATE
AND NOT EVIDENTIARY FACTS SUPPORTING ITS CONCLUSIONS."  WITH THIS
CONTRAST THE REQUIREMENT OF SEC. 8(B) OF THE ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. SEC. 1007(B), THAT "ALL DECISIONS  ...  SHALL  ...
INCLUDE A STATEMENT OF (1) FINDINGS AND CONCLUSIONS, AS WELL AS THE
REASONS OR BASIS THEREFOR, UPON ALL THE MATERIAL ISSUES OF FACT  ...
."  CONTRAST ALSO STATEMENTS BY THIS COURT THAT "FINDINGS BASED ON THE
EVIDENCE MUST EMBRACE THE BASIC FACTS WHICH ARE NEEDED TO SUSTAIN THE
ORDER," MORGAN V. UNITED STATES, 298 U.S. 468, 480, AND THAT "WE HAVE
REPEATEDLY EMPHASIZED THE NEED FOR CLARITY AND COMPLETENESS IN THE
BASIC OR ESSENTIAL FINDINGS ON WHICH ADMINISTRATIVE ORDERS REST." 
COLORADO-WYOMING GAS CO. V. FEDERAL POWER COMM'N, 324 U.S. 626, 634. 
SEE ALSO, E.G., ATCHISON, T.&S.F.R. CO. V. UNITED STATES, 295 U.S. 193,
201-202; FLORIDA V. UNITED STATES, 282 U.S. 194, 215. 

THE INSUFFICIENCY OF THE COMMISSION'S BASIC FINDINGS IS MADE CLEARER
BY THE FACTS AND CIRCUMSTANCES OF THIS CASE.  THE CHICAGO AND EASTERN
ILLINOIS RAILROAD, APPELLANT HERE, OPERATES A LINE FROM THE SOUTHERN
INDIANA TOWN OF MOUNT VERNON, ON THE OHIO RIVER, TO THE STEEL PLANTS OF
THE CHICAGO AREA.  MOST COAL SHIPPED TO CHICAGO FOR STEELMAKING COMES
FROM THE WEST VIRGINIA AREA OVER THE LARGE EASTERN RAILROADS,
INTERVENING APPELLEES, WHICH, ALTHOUGH AUTHORIZED IF NOT REQUIRED BY
SECS. 3(4),15(3) AND 15(4) OF THE INTERSTATE COMMERCE ACT, 24 STAT.
380, 384, AS AMENDED, 49 U.S.C. SECS. 3(4), 15(3), 15(4), HAVE REFUSED
TO ESTABLISH JOINT RATES WITH ANY BARGE LINE.  SOME YEARS AGO THE C&EI
FILED A TARIFF FOR HAULING COAL WHICH CAME TO MOUNT VERNON BY BARGE. 
THE EASTERN ROADS PROTESTED.  THE COMMISSION REFUSED TO APPROVE A RATE
LOWER THAN $2.045 PER TON, WHICH IT FOUND TO BE THE C&EI'S 1957 COST. 
308 I.C.C. 87; 310 I.C.C. 181.  THE C&EI THEN TURNED TO THE OHIO RIVER
COMPANY, A BARGE LINE OPERATING DOWN THE OHIO FROM THE COAL MINES TO
MOUNT VERNON, AND ESTABLISHED WITH IT A JOINT RATE OF $3.36, OF WHICH
THE RAILROAD'S SHARE WAS TO BE $2.04.  THE JOINT RATE SAVED PAPERWORK
AND THE EXPENSE OF WEIGHING COAL TRANSFERRED FROM THE BARGES.  THE
EASTERN LINES WERE CHARGING $4.75 FOR THE ALL-RAIL SHIPMENT. 

THE EASTERN ROADS SWIFTLY DEMANDED THAT THE ICC SET ASIDE THE JOINT
RATE, CLAIMING IT WAS BELOW COST AND THEREFORE ILLEGAL UNDER SEC. 1(5)
OF THE INTERSTATE COMMERCE ACT, 24 STAT. 379, AS AMENDED, 49 U.S.C.
SEC. 1(5).  BOTH THE C&EI AND THE EASTERN ROADS PRESENTED COST AVERAGES
FOR EACH STEP OF THE OPERATION.  THERE WERE DISPUTES ON MANY FACTUAL
POINTS, AND WHEN THE SMOKE HAD CLEARED THE COMMISSION EMERGED WITH ITS
OWN SET OF FIGURES, UNLIKE THAT OF EITHER PARTY, THOUGH THE COMMISSION
DID NOT MAKE CLEAR, AND NO ONE ELSE IN MY JUDGMENT COULD TELL, EXACTLY
WHY.  IN ITS OPINION THE COMMISSION SIMPLY ADDED UP THE FIGURES IT HAD
MYSTERIOUSLY PRODUCED, FOUND THE SUM TO BE $3.416, AND HELD THE RATE
PROPOSED, BY THE C&EI AND THE BARGE LINE TO BE ILLEGAL AS 5.6 CENTS
BELOW COST.  REVIEW IN THE DISTRICT COURT PRODUCED SOME EMBARRASSMENT,
FOR BOTH THE COMMISSION AND THE EASTERN RAILROADS FILED BRIEFS TO
DEMONSTRATE THE CRYSTAL-CLARITY OF THE COMMISSION'S FINDINGS; HOWEVER,
THEIR RESPECTIVE EXPLANATIONS OF HOW THE COMMISSION HAD ARRIVED AT THE
FIGURE IT HAD WERE IN PART INCONSISTENT. 

ONE EXAMPLE SHOULD SUFFICE TO DEMONSTRATE THE PUZZLING NATURE OF THE
"FINDINGS" WHICH THE DISTRICT COURT UPHELD.  REPRESENTATIVES OF THE
C&EI TESTIFIED THAT TRAINS FROM MOUNT VERNON WOULD, INSTEAD OF BEING
SWITCHED AND WEIGHED AS THEY HAD BEEN BEFORE THE JOINT TARIFF, PASS
RIGHT THROUGH THE SWITCHING YARD WITHOUT STOPPING EXCEPT PERHAPS TO
CHANGE CREWS.  THE EASTERN LINES CONTENDED THAT THE TOTAL COSTS SHOULD
INCLUDE THE COSTS OF WEIGHING AND SWITCHING, AS BEFORE.  THE COMMISSION
FINALLY MADE NO CHARGE FOR WEIGHING, BUT CHARGED FOR SWITCHING THE CARS
JUST THE SAME.  WHY THE CARS WOULD BE SWITCHED IF THEY WERE NOT GOING
TO BE WEIGHED IS NOT EXPLAINED.  NO WITNESS FOR EITHER PARTY HAD
SUGGESTED SUCH A THING.  THIS SWITCHING CHARGE ALONE ACCOUNTS FOR 4.2
CENTS OF THE 5.6 CENTS ON WHICH THE COMMISSION RELIED TO INVALIDATE THE
TARIFF.  THE RECORD REVEALS OTHER DISPUTES, RESOLVED WHETHER BY
ANALYSIS, INATTENTION OR WHIMSY NO ONE CAN TELL.  THE COMMISSION'S
LAWYERS URGED IN THE DISTRICT COURT THAT EVEN IF THERE WAS NO WAY OF
JUSTIFYING THE 4.2 CENTS CHARGE, IT REALLY DIDN'T MAKE ANY DIFFERENCE
BECAUSE THAT ALONE WOULD NOT SUFFICE TO BRING THE TOTAL COSTS DOWN TO
THE LEVEL OF THE TARIFF.  IN FACT, SAID THE COMMISSION, IT "COULD HAVE
MET ALL LEGAL REQUIREMENTS BY ACCEPTING IN TOTO PROTESTANTS' FIGURES";
IN EFFECT, THAT THE PURPOSE OF THE HEARING WAS NOT TO DETERMINE WHAT
COSTS REALLY WERE, BUT RATHER TO PRODUCE A REPORT SETTING FORTH FIGURES
TO JUSTIFY A CONCLUSION.  HERETOFORE I HAD THOUGHT THAT ORDERS OF
ADMINISTRATIVE AGENCIES WERE NOT TO BE SUSTAINED UNLESS BASED ON
SUBSTANTIAL EVIDENCE SUPPORTED BY THE RECORD.  UNIVERSAL CAMERA CORP.
V. LABOR BOARD, 340 U.S. 474.  YET HOW CAN THIS COURT TELL WHETHER
THERE WAS SUBSTANTIAL EVIDENCE WHEN IT CANNOT TELL HOW THE COMMISSION
ARRIVED AT ITS FIGURES?  "WE MUST KNOW 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, 511.  EXPLICIT REASONS FOR
ITS RESULT WOULD SEEM ALL THE MORE CALLED FOR WHERE THE COMMISSION
UNDER ITS EARLIER DECISIONS HAD COMPELLED THOSE PROTESTING A PROPOSED
INITIAL RATE LIKE THAT IN THIS CASE TO BEAR THE BURDEN OF PROVING THE
RATE'S INVALIDITY.  SEE, E.G., COTTON FROM NEW ORLEANS, 49 I.C.C. 751;
BAY STATE MILLING CO. V. GREAT LAKES TRANSIT CORP., 43 I.C.C. 338.  THE
OPINION OF THE COMMISSION HERE MEANS SIMPLY THAT THE COMMISSION STRIKES
DOWN THE TARIFF, AND REVIEWING COURTS WILL PLEASE TRUST THAT IT HAD
GOOD REASONS FOR DOING SO. 

FURTHERMORE, IN INTERSTATE COMMERCE COMM'N V. MECHLING, 330 U.S. 567,
581-583, WE HELD THAT USE BY THE COMMISSION OF GENERAL FORMULAS AND
UNSIFTED AVERAGES COULD NOT TAKE THE PLACE OF FINDINGS.  YET THE
COMMISSION HERE ADMITS TO BASING MUCH OF ITS RESULT ON AVERAGES TAKEN
FROM THE 1959 ANNUAL REPORT OF THE C&EI ON ALL ITS OPERATIONS, LEAVING
UNANSWERED AND UNREBUTTED THE PROTESTS OF THE C&EI THAT MANY COSTS
WHICH IT INCURS ON OTHER ROUTES ARE NOT APPLICABLE TO THE MOUNT VERNON
CHICAGO RUN.  IN ADDITION, THE COMMISSION INCREASED COSTS TAKEN FROM
THE ANNUAL REPORT BY 2.9% ON THE THEORY THAT OPERATING EXPENSES OF THE
C&EI HAD INCREASED BY THAT AMOUNT DURING THE YEAR BETWEEN THE TIME OF
THE REPORT AND THE TIME OF THE HEARING.  THIS FIGURE WAS STATED TO BE
THE INCREASE IN COSTS OF ALL RAILROADS IN THE UNITED STATES FOR THE
PERIOD.  THE C&EI PROTESTED THAT COMPARISON OF ITS 1957 AND 1959 ANNUAL
REPORTS SHOWED THAT MANY OF ITS COSTS HAD BEEN, CONTRARY TO ANY
NATIONAL AVERAGE, DECREASING SLIGHTLY, AND ARGUED THAT THERE WAS NO
BASIS FOR THE APPARENT CONCLUSION THAT ITS COSTS HAD NOT CONTINUED TO
DECREASE, HOWEVER MUCH THOSE OF OTHER RAILROADS MIGHT HAVE INCREASED. 
BUT SO FOND WAS THE COMMISSION OF ITS 2.9% "TRENDING FACTOR" THAT IT
SEEMS TO HAVE INCLUDED IT AS A PART OF THE COST OF THE BARGE SEGMENT OF
THE JOINT RATE AS WELL, WITHOUT EXPLAINING HOW A SUPPOSED NATIONAL
INCREASE IN COST OF LABOR AND EQUIPMENT FOR RAILROADS IS NECESSARILY
ACCOMPANIED BY ONE FOR BARGE LINES ALSO.  I AM UNABLE TO GRASP THE
LOGIC WHICH APPARENTLY DETERMINED THAT INCREASES IN COSTS OF STEEL
RAILS AND MAINTENANCE OF ROLLING STOCK MADE THE OHIO RIVER COMPANY'S
BARGES MORE EXPENSIVE TO OPERATE. 

IT APPEARS THAT THE COMMISSION HAS IGNORED COMMANDS OF CONGRESS AND
OF THIS COURT.  THE LARGE RAILROADS HAVE SUCCEEDED IN THIS CASE IN
DOING A GREAT INJURY TO A BARGE LINE AND TO A SMALL RAILROAD WHICH
DARED WILLINGLY TO COOPERATE WITH ANOTHER MODE OF TRANSPORT, AS THE LAW
REQUIRED IT TO DO, IN ORDER TO PROFIT FROM THE INHERENT ADVANTAGES OF
EACH AND THEREBY BENEFIT THE PUBLIC.  THE COMMISSION ASKS US TO BELIEVE
THAT THE C&EI SCHEMED TO CARRY ON AN OPERATION ON WHICH IT WOULD LOSE
MONEY, LOSING GREATER AND GREATER SUMS THE MORE COAL IT HAULED,
PRESUMABLY IN THE HOPE OF LIVING ON ITS CAPITAL UNTIL IT HAD DRIVEN OUT
OF BUSINESS SUCH COMPANIES AS THE NEW YORK CENTRAL AND THE
PENNSYLVANIA.  I FIND THIS A DIFFICULT PROPOSITION TO ACCEPT, AND
SHOULD LIKE TO HAVE THE COMMISSION EXPLAIN IN PLAIN UNDERSTANDABLE
ENGLISH HOW IT REACHED SUCH A CONCLUSION.  UNFORTUNATELY, THE REPORT AS
IT STANDS MAKES IT IMPOSSIBLE FOR ME TO SAY WHETHER THE ULTIMATE
FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE OR NOT.  YET INSTEAD OF
REQUIRING THE COMMISSION TO COMPLY WITH THE LAW AT LEAST SUFFICIENTLY
THAT ITS ACTS MAY BE REVIEWED, MY BRETHREN SILENTLY AFFIRM A LOWER
COURT JUDGMENT WHICH I THINK IS COMPLETELY OUT OF LINE WITH THE MANDATE
OF CONGRESS AND OUR PAST EMPHATIC HOLDINGS.  THE COMMISSION APPARENTLY
SEEKS TO MAKE A RUBBER STAMP OF ANY COURT REVIEWING ITS ORDERS.  I DO
NOT LIKE THAT ROLE.  IF SUMMARY DISPOSITION IS IN ORDER, I SHOULD THINK
REVERSAL THE APPROPRIATE JUDGMENT. 

FN1  "  ...  WE WOULD BE REMISS IN OUR DUTY IF WE DID NOT TAKE NOTE
OF THE FACT THAT FOR OVER EIGHT YEARS PLAINTIFFS HAVE BEEN SEEKING
RELIEF IN THIS PROCEEDING FROM DISCRIMINATORY RAIL RATES WHICH WE FIND
ARE IN VIOLATION OF THE INTERSTATE COMMERCE ACT.  SECTION 10(E) OF THE
ADMINISTRATIVE PROCEDURE ACT PROVIDES THAT THE REVIEWING COURT 'SHALL
...  COMPEL AGENCY ACTION UNLAWFULLY WITHHELD OR UNREASONABLY
DELAYED.'  IT IS THE OPINION OF THIS COURT THAT THE PRESENT CASE IS AN
APPROPRIATE ONE FOR APPLICATION OF THIS STATUTORY PROVISION, AND THAT
THE PLAINTIFFS ARE ENTITLED TO PROMPT RELIEF FROM THE DISCRIMINATORY
RATES PRESENTLY IN EFFECT.  THE CASE IS THEREFORE REMANDED WITH
INSTRUCTIONS TO THE COMMISSION TO ENTER AN ORDER PRESCRIBING LAWFUL,
REASONABLE, AND NONDISCRIMINATORY RATES  ...  ."  176 F. SUPP., AT
421. 

FN2  "THE FORMULA USED HERE WHICH LUMPS ALL THROUGH RAIL GRAIN RATES,
IRRESPECTIVE OF THE SERVICES RENDERED, TO GIVE RAIL-CARRIED GRAIN A
PREFERRED RATE OVER BARGE-CARRIED GRAIN, IS INDISTINGUISHABLE IN CAUSE
AND CONSEQUENCE FROM AN ORDER WHICH DIRECTLY RAISES BARGE RATES TO
RELIEVE THE RAILROADS FROM BARGE COMPETITION.  IN ANY EVENT, THERE HAS
BEEN NO SHOWING BY THE COMMISSION AS TO HOW MUCH, IF ANY, OF THE 3-CENT
RESHIPPING RATE INCREASE IS ATTRIBUTABLE TO THE FACT THAT EX-BARGE
GRAIN REQUIRES MORE TERMINAL SERVICE ON THE AVERAGE THAN DOES EX-RAIL
GRAIN."  INTERSTATE COMMERCE COMM'N V. MECHLING, 330 U.S. 567, AT 582. 

FN3  THE UNFOLDING OF SUCH AN EPISODE CAN BE SEEN IN THE ARROW
LITIGATION, IN WHICH RAILROADS PROPOSED SUDDENLY TO CUT THEIR RATES FOR
ALL-RAIL GRAIN SHIPMENTS TO THE SOUTHEAST BY MORE THAN HALF.  ALTHOUGH
THE DISTRICT COURT SUBSEQUENTLY FOUND THAT THE RATES IF APPROVED
PROBABLY WOULD PUT THE COMPETING BARGE LINES OUT OF BUSINESS IN A SHORT
TIME, THE COMMISSION STILL HAD TAKEN NO ACTION AFTER SEVEN MONTHS AND
SO UNDER THE STATUTE THE RATES WENT INTO EFFECT.  FOR A HISTORY OF THE
ARROW LITIGATION, SEE ARROW TRANSPORTATION CO. V. SOUTHERN R. CO.,
CIVIL NO. 10,224 (D.C.N.D. ALA.), AUG. 3, 1962 (DENYING, FOR LACK OF
JURISDICTION, INJUNCTION OF UNLAWFUL RAILROAD RATES); ARROW
TRANSPORTATION CO. V. SOUTHERN R. CO., 83 SUP. CT. 1 (IN
CHAMBERS)(EXTENDING ORDER OF CIRCUIT JUDGES TEMPORARILY RESTRAINING
RATES); ARROW TRANSPORTATION CO. V. SOUTHERN R. CO., 308 F.2D 181 (C.A.
5TH CIR.)(AFFIRMING DISTRICT COURT); ARROW TRANSPORTATION CO. V.
SOUTHERN R. CO., 83 SUP. CT. 3 (IN CHAMBERS) (RESTRAINING RATES PENDING
DISPOSITION OF CASE BY SUPREME COURT); GRAIN IN MULTIPLE-CAR SHIPMENTS
RIVER CROSSINGS TO THE SOUTH, I.C.C. DIVISION 2,318 I.C.C. 641
(UPHOLDING UNLAWFUL RATES IN PART); ARROW TRANSPORTATION CO. V.
SOUTHERN R. CO., 372 U.S. 658 (AFFIRMING COURT OF APPEALS, THEREBY
PERMITTING RATES TO TAKE EFFECT).  IN SHORT, DIVISION 2 OF THE
COMMISSION WAITED 17 MONTHS BEFORE TAKING ANY ACTION ON THE PROTEST OF
THE BARGE LINES, THEREBY PERMITTING RATES TO TAKE EFFECT WHICH THE
DISTRICT COURT HAD SAID WOULD DESTROY THE BARGE LINES.  AND IT WAS
NEARLY SIX MONTHS MORE BEFORE THE FULL COMMISSION ON RECONSIDERATION
HELD THE RATES UNLAWFUL.  GRAIN IN MULTIPLE-CAR SHIPMENTS - RIVER
CROSSINGS TO THE SOUTH, I.&S. DOCKET NO. 7656, JULY 1, 1963, 321 I.C.C.
582.  THE SAME RATES REMAIN IN EFFECT TODAY, FOR THE RAILROADS HAVE
OBTAINED AN ORDER RESTRAINING THE COMMISSION'S LATEST ORDER. 
CINCINNATI, N.O.&T.P.R. CO. V. UNITED STATES, 220 F. SUPP. 46 (D.C.S.D.
OHIO). 

FN4  SEE DOUGLAS, THE SUPREME COURT AND ITS CASE LOAD, 45 CORNELL
L.Q. 401. 
..END :























MEEKER V. AMBASSADOR OIL CORP. 375 U.S. 160 


NO. 46.  ARGUED NOVEMBER 19-20, 1963.  - DECIDED DECEMBER 2, 1963.  -
308 F.2D 875, REVERSED. 


MEEKER ET UX. V. AMBASSADOR OIL CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT IS
REVERSED.  BEACON THEATRES, INC., V. WESTOVER, 359 U.S. 500; DAIRY
QUEEN, INC., V. WOOD, 369 U.S. 469. 
..END :















BERRY V. NEW YORK 375 U.S. 160 


NO. 163, MISC.  DECIDED DECEMBER 2, 1963.  - CERTIORARI GRANTED;
JUDGMENT VACATED; AND CASE REMANDED. 


BERRY V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DIVISION, SUPREME
COURT OF NEW YORK, FOURTH JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW
YORK, FOURTH JUDICIAL DEPARTMENT, FOR FURTHER CONSIDERATION IN LIGHT OF
GIDEON V. WAINWRIGHT, 372 U.S. 335. 
..END :













KIRKLAND V. TEXAS 375 U.S. 161 


NO. 465.  DECIDED DECEMBER 2, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


KIRKLAND V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ABERNATHY V. EASTERN AIR LINES 375 U.S. 161 


NO. 450.  DECIDED DECEMBER 2, 1963.* - APPEALS DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 259 N.C. 190, 130 S.E.2D 292. 

*TOGETHER WITH NO. 451, CHARLOTTE COUNCIL, AIR LINE PILOTS
ASSOCIATION, ET AL. V. EASTERN AIR LINES, INC., ET AL., ALSO ON APPEAL
FROM THE SAME COURT. 


ABERNATHY ET AL. V. EASTERN AIR LINES, INC., ET AL. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEALS ARE DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEALS WERE
TAKEN AS PETITIONS FOR WRITS OF CERTIORARI, CERTIORARI IS DENIED. 
..END :












GOTTHILF V. SILLS 375 U.S. 79 


NO. 50.  ARGUED OCTOBER 24, 1963.  - DECIDED NOVEMBER 18, 1963.  - WRIT
OF CERTIORARI DISMISSED. 


THIS COURT GRANTED CERTIORARI TO REVIEW A JUDGMENT OF THE APPELLATE
DIVISION, SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT, WHICH
THE COURT OF APPEALS OF NEW YORK HELD COULD NOT BE APPEALED TO IT AS OF
RIGHT BECAUSE IT DID NOT FINALLY DETERMINE THE ACTION.  SECTION 589 OF
THE NEW YORK CIVIL PRACTICE ACT PROVIDES, INTER ALIA, THAT APPEALS FROM
NONFINAL ORDERS CAN BE TAKEN TO THE COURT OF APPEALS ONLY BY LEAVE OF
THE APPELLATE DIVISION UPON CERTIFIED QUESTIONS; BUT PETITIONER AT NO
TIME APPLIED TO THE APPELLATE DIVISION FOR SUCH PERMISSION.  HELD:  THE
JUDGMENT OF THE APPELLATE DIVISION IS NOT THAT OF THE "HIGHEST COURT OF
A STATE IN WHICH A DECISION COULD BE HAD," WITHIN THE MEANING OF 28
U.S.C. SEC. 1257, AND THE WRIT OF CERTIORARI IS DISMISSED AS
IMPROVIDENTLY GRANTED.  PP. 79-80. 

GOTTHILF V. SILLS ET AL. 

CERTIORARI TO THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK,
FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE SUPREME COURT OF NEW YORK COUNTY ISSUED AN ORDER GRANTING BODY
EXECUTION (N.Y. CIV.  PRAC.  ACT SEC. 764) AGAINST PETITIONER FOR
FAILURE TO PAY A MONEY JUDGMENT WHICH HAD BEEN FINALLY ENTERED AGAINST
HIM IN THAT COURT IN AN ACTION PREMISED ON FRAUD AND DECEIT.  ON APPEAL
TO THE APPELLATE DIVISION, FIRST JUDICIAL DEPARTMENT, PETITIONER
ATTACKED SEC. 764 AS BEING VIOLATIVE OF BOTH THE STATE AND FEDERAL
CONSTITUTIONS.  THE ORDER WAS AFFIRMED, 17 APP. DIV. 2D 723. 
PETITIONER THEN FILED A MOTION IN THE COURT OF APPEALS OF NEW YORK FOR
LEAVE TO APPEAL (N.Y. CIV. PRAC.  ACT SEC. 589) WHICH WAS DISMISSED FOR
WANT OF JURISDICTION BECAUSE "THE ORDER SOUGHT TO BE APPEALED FROM DOES
NOT FINALLY DETERMINE THE ACTION WITHIN THE MEANING OF THE
CONSTITUTION."  12 N.Y.2D 761, 186 N.E.2D 563.  SEE CHASE WATCH CORP.
V. HEINS, 283 N.Y. 564, 27 N.E.2D 282 (1940); CF. KNICKERBOCKER TRUST
CO. V. ONEONTA, C.&R.S.R. CO., 197 N.Y. 391, 90 N.E. 1111 (1910).  AN
APPEAL TO THE COURT OF APPEALS AS OF RIGHT (N.Y. CIV.  PRAC.  ACT SEC.
588) WAS DISMISSED ON THE SAME GROUND.  12 N.Y.2D 792, 186 N.E.2D 811. 
CERTIORARI WAS GRANTED TO REVIEW THE JUDGMENT OF THE APPELLATE
DIVISION, FIRST JUDICIAL DEPARTMENT.  372 U.S. 957. 

THAT APPEALS FROM NONFINAL ORDERS CAN ONLY BE TAKEN TO THE COURT OF
APPEALS BY LEAVE OF THE APPELLATE DIVISION UPON CERTIFIED QUESTIONS. 
THE PETITIONER AT NO TIME APPLIED TO THE APPELLATE DIVISION FOR SUCH
PERMISSION.  IT THEREFORE APPEARS THAT THE APPELLATE DIVISION, FIRST
JUDICIAL DEPARTMENT, "WAS NOT THE LAST STATE COURT IN WHICH A DECISION
OF THAT (CONSTITUTIONAL) QUESTION COULD BE HAD."  GORMAN V. WASHINGTON
UNIVERSITY, 316 U.S. 98, 100 (1942).  THE JUDGMENT OF THE APPELLATE
DIVISION IS NOT THAT OF THE "HIGHEST COURT OF A STATE IN WHICH A
DECISION COULD BE HAD" WITHIN THE MEANING OF 28 U.S.C. SEC. 1257. 
WHETHER, UNDER THE SAME SECTION, THAT JUDGMENT IS "FINAL," A QUESTION
OF PURELY FEDERAL LAW, INVOLVES ENTIRELY DIFFERENT CONSIDERATIONS.  THE
PETITION FOR CERTIORARI WAS THEREFORE IMPROVIDENTLY GRANTED AND THE
WRIT IS DISMISSED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THE MAJORITY CONCLUDES THAT PETITIONER IS NOT SEEKING REVIEW OF THE
DECISION OF THE "HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE
HAD" WITHIN THE MEANING OF 28 U.S.C. SEC. 1257.  IT IS SAID THAT
PETITIONER COULD HAVE, BY EMPLOYMENT OF THE CERTIFIED QUESTION
PROCEDURE, OBTAINED A FULL REVIEW OF HIS CONSTITUTIONAL QUESTIONS BY
THE NEW YORK COURT OF APPEALS, BUT INSTEAD CHOSE A ROUTE THAT RESULTED
IN THE DISMISSAL OF HIS APPEAL. 

THE DETERMINATION OF THE COURT OF APPEALS THAT THIS BODY EXECUTION
ORDER IS A NONFINAL ORDER SUBJECT TO APPEAL ONLY VIA THE CERTIFIED
QUESTION ROUTE CAME AS A SURPRISE.  THERETOFORE, THE ONE AND ONLY NEW
YORK CASE INVOLVING A BODY EXECUTION ORDER AND THE QUESTION OF HOW ONE
SHOULD OBTAIN REVIEW IN THE COURT OF APPEALS WAS CHASE WATCH CORP. V.
HEINS, 283 N.Y. 564, 27 N.E.2D 282, DECIDED IN 1940.  THE CREDITOR TOOK
AN APPEAL FROM AN ORDER OF THE APPELLATE DIVISION VACATING AN ORDER
AUTHORIZING BODY EXECUTION.  258 APP. DIV. 968, 17 N.Y.S.2D 880.  THE
COURT OF APPEALS DISMISSED ON THE GROUND THAT THE ORDER WAS NOT FINAL,
GIVING THE CREDITOR, HOWEVER, 20 DAYS WITHIN WHICH TO SEEK
CERTIFICATION OF A QUESTION FROM THE APPELLATE DIVISION.  THIS WAS DONE
(259 APP. DIV. 888, 18 N.Y.S.2D 742) AND THE CREDITOR ULTIMATELY
PREVAILED (284 N.Y. 129, 29 N.E.2D 646).  IT IS ARGUED THAT THE CHASE
WATCH CASE CLEARLY ESTABLISHED THE TYPE OF PROCEDURE THAT PETITIONER
SHOULD HAVE FOLLOWED.  THE VACATION OF A BODY EXECUTION ORDER, HOWEVER,
AS IN CHASE WATCH, IS FAR LESS FINAL THAN THE CONVERSE, WHICH IS THE
PRESENT CASE.  IN CHASE WATCH, THE ORDER DETERMINED NOTHING FINALLY;
THE CREDITOR WAS MERELY MOMENTARILY FRUSTRATED IN HIS COLLECTION
EFFORTS, AND WAS FORCED TO RELY ON OTHER DEVICES.  HERE, ON THE OTHER
HAND, THE DEBTOR FACES INCARCERATION; HE HAS FOUGHT FOR HIS RIGHT TO
REMAIN OUT OF JAIL; AND HE HAS LOST.  IF HE LACKS MONEY WITH WHICH TO
PAY THE JUDGMENT, NOTHING FURTHER IS AVAILABLE FOR HIM BY NEW YORK
LAW.  THE CASE ILLUSTRATES THAT CONCEPTS OF FINALITY IN ONE CONTEXT
CANNOT ALWAYS BE TRANSFERRED TO ANOTHER. 

IN MY OPINION, PETITIONER MIGHT REASONABLY HAVE CONCLUDED THAT A
FINAL ORDER HAD BEEN ENTERED IN THIS CASE AND THAT CHASE WATCH DID NOT
CONTROL.  THEREFORE, HIS ACTION IN DOCKETING AN APPEAL IN THE COURT OF
APPEALS, AND NOT INVOKING THE CERTIFICATION PROCEDURES APPLICABLE ONLY
TO NONFINAL ORDERS, WAS JUSTIFIABLE AS A MATTER OF FEDERAL LAW.  THE
DECISION OF THE COURT OF APPEALS IN THIS CASE ESTABLISHES, OF COURSE,
AS A MATTER OF STATE LAW THAT THE ORDER WAS NOT FINAL.  WHILE THAT
DETERMINATION IS BINDING ON US, IT DOES NOT PRECLUDE US FROM HOLDING
THAT THE DECISION WAS SUFFICIENTLY UNEXPECTED SO AS NOT TO BAR, IN THE
INTERESTS OF JUSTICE, THE CERTIORARI ROUTE HERE.  SEE NAACP V. ALABAMA,
357 U.S. 449, 457-458: 

"NOVELTY IN PROCEDURAL REQUIREMENTS CANNOT BE PERMITTED TO THWART
REVIEW IN THIS COURT APPLIED FOR BY THOSE WHO, IN JUSTIFIED RELIANCE
UPON PRIOR DECISIONS, SEEK VINDICATION IN STATE COURTS OF THEIR FEDERAL
CONSTITUTIONAL RIGHTS." 

THE CURRENT DECISION WAS A SURPRISE WHICH COULD NOT REASONABLY BE
ANTICIPATED, AND IT WAS THEN TOO LATE FOR PETITIONER TO AVAIL HIMSELF
OF THE NEW PROCEDURE. 

WHILE 28 U.S.C. SEC. 1257 ALSO REQUIRES THAT JUDGMENTS BROUGHT HERE
FOR REVIEW BE "FINAL," WE HAVE RECOGNIZED AN EXCEPTION - SOMETIMES EVEN
TO THE POINT OF REVIEWING INTERLOCUTORY DECREES - WHERE THE CONTROVERSY
HAS PROCEEDED TO A POINT WHERE THE "LOSING PARTY WILL  ...  BE
IRREPARABLY INJURED IF REVIEW IS  ...  UNAVAILING."  REPUBLIC NATURAL
GAS CO. V. OKLAHOMA, 334 U.S. 62, 68.  UNLESS THE CASE IS REVIEWED NOW,
PETITIONER GOES TO JAIL - OR STAYS OUTSIDE NEW YORK.* 

*THERE IS NO SUGGESTION THAT AFTER THE COURT OF APPEALS DISMISSED THE
APPEAL, PETITIONER SHOULD HAVE REPAIRED ONCE MORE TO THE APPELLATE
DIVISION FOR A CERTIFICATE OR IN THE WORDS OF SECTION 592, 5(C) OF THE
NEW YORK CIVIL PRACTICE ACT "FOR PERMISSION TO APPEAL."  IT SHOULD BE
NOTED, HOWEVER, THAT THIS PROCEDURE IS AVAILABLE ONLY WITH
QUALIFICATIONS, AS THAT SUB-SECTION MAKES THE GRANTING OF THE
APPLICATION CONTINGENT NOT ONLY ON THE DISCRETION OF THE APPELLATE
DIVISION BUT ALSO ON THE EXPLICIT PROVISO "THAT THE PROCEEDINGS HAVE
NOT BEEN IMPROPERLY DELAYED." 

IN MY OPINION THE CASE IS PROPERLY HERE AND THE COURT SHOULD
CONSIDER, ON THE MERITS, THE CONSTITUTIONAL QUESTIONS PRESENTED. 
..END :



CERTIFIED CREDIT CORP. V. BOWERS 375 U.S. 84 


NO. 430.  DECIDED NOVEMBER 18, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  174 OHIO ST. 239, 188
N.E.2D 594. 


CERTIFIED CREDIT CORP. V. BOWERS, TAX COMMISSIONER OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















UNITED STATES V. ZACKS 375 U.S. 59 


NO. 44.  ARGUED OCTOBER 21, 1963.  - DECIDED NOVEMBER 12, 1963.  - 150
CT. CL. 814, 280 F.2D 829, REVERSED. 


IN 1952, A TAXPAYER RECEIVED ROYALTIES ON PATENTS ALL SUBSTANTIAL
RIGHTS UNDER WHICH SHE HAD TRANSFERRED TO A MANUFACTURER BY WAY OF AN
EXCLUSIVE LICENSE.  SHE AND HER HUSBAND REPORTED SUCH ROYALTIES AS
ORDINARY INCOME IN THEIR JOINT RETURN FOR 1952.  THIS RETURN WAS FILED
IN 1953; THE LAST PAYMENT OF TAXES THEREUNDER WAS MADE IN 1953; AND A
CLAIM FOR REFUND WAS BARRED IN 1956 BY SEC. 322(B)(1) OF THE INTERNAL
REVENUE CODE OF 1939.  BY THE ACT OF JUNE 29, 1956, CONGRESS AMENDED
THE INTERNAL REVENUE CODE OF 1939 SO AS TO ADD SEC. 117(Q), PROVIDING
THAT AMOUNTS RECEIVED IN SUCH CIRCUMSTANCES SHOULD BE TAXED AS CAPITAL
GAINS, RATHER THAN AS ORDINARY INCOME, AND IT MADE THE AMENDMENT
APPLICABLE TO TAX YEARS BEGINING AFTER MAY 31, 1950.  IN RELIANCE ON
THIS AMENDMENT, THE TAXPAYERS FILED IN 1958 A CLAIM FOR A PRO TANTO
REFUND OF THEIR 1952 INCOME TAXES.  HELD:  THEIR CLAIM WAS BARRED BY
THE STATUTE OF LIMITATIONS GENERALLY APPLICABLE TO TAX REFUND CLAIMS. 
PP. 59-70. 

UNITED STATES V. ZACKS ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER SEC. 117(Q) OF THE INTERNAL
REVENUE CODE OF 1939, A 1956 AMENDMENT TO THE CODE WHICH EFFECTED
RETROACTIVE CHANGES IN THE TAX TREATMENT OF TRANSFERS OF PATENT RIGHTS,
GIVES RISE TO A CLAIM FOR REFUND BARRED BY THE STATUTE OF LIMITATIONS
GENERALLY APPLICABLE TO TAX REFUND CLAIMS. 

IN 1952, MRS. ZACKS RECEIVED ROYALTIES OF ABOUT $37,000 ON PATENTS
ALL SUBSTANTIAL RIGHTS UNDER WHICH SHE HAD TRANSFERRED BY WAY OF AN
EXCLUSIVE LICENSE TO A MANUFACTURING CORPORATION.  IN ACCORDANCE WITH
THE THEN PREVAILING RULINGS OF THE COMMISSIONER, THE ROYALTIES WERE
REPORTED AS ORDINARY INCOME IN THE 1952 JOINT FEDERAL INCOME TAX RETURN
FILED BY MRS. ZACKS AND HER HUSBAND IN 1953.  THE LAST PAYMENT OF THE
TAXES DUE WAS MADE IN 1953.  UNDER THE STATUTE OF LIMITATIONS GOVERNING
A CLAIM FOR REFUND OF SUCH TAXES, THE CLAIM WAS BARRED IN 1956.  SEC.
322(B)(1), INTERNAL REVENUE CODE OF 1939, 26 U.S.C. (1952 ED.)  SEC. 
322(B)(1), 53 STAT. 91.  (FN1)  BY ACT OF JUNE 29, 1956, 70 STAT.  404,
CONGRESS AMENDED THE PROVISIONS OF THE 1939 CODE GOVERNING THE
TAXABILITY OF AMOUNTS RECEIVED IN CONSIDERATION FOR THE TRANSFER OF
PATENT RIGHTS.  THE AMENDMENT, MADE APPLICABLE TO TAX YEARS BEGINNING
AFTER MAY 31, 1950, PROVIDED THAT IN THE CIRCUMSTANCES PRESENT HERE
SUCH AMOUNTS SHOULD BE TAXED AS CAPITAL GAINS RATHER THAN AS ORDINARY
INCOME. 

IN RELIANCE ON THIS AMENDMENT, THE TAXPAYERS, ON JUNE 23, 1958, FILED
A CLAIM FOR A PRO TANTO REFUND OF THEIR 1952 INCOME TAXES.  NO ACTION
HAVING BEEN TAKEN ON THE CLAIM, THEY THEN COMMENCED A REFUND SUIT IN
THE COURT OF CLAIMS.  THE UNITED STATES ASSERTED AS A DEFENSE THAT THE
SUIT WAS BARRED BY LIMITATIONS UNDER SEC. 7422(A) OF THE INTERNAL
REVENUE CODE OF 1954, 26 U.S.C. SEC. 7422(A), 68A STAT. 876.  (FN2)
THE COURT OF CLAIMS GRANTED THE TAXPAYERS' MOTION TO STRIKE THIS
DEFENSE, 150 CT. CL. 814, 280 F.2D 829, AND, OTHER ISSUES IN THE CASE
BEING SETTLED BY STIPULATION, ENTERED JUDGMENT FOR THE TAXPAYERS. 

BECAUSE OF THE RECURRING IMPORTANCE OF THE PROBLEM IN THE
ADMINISTRATION OF THE TAX LAWS AND A CONFLICT BETWEEN THE DECISION
BELOW AND THOSE OF SOME OF THE COURTS OF APPEALS, (FN3) WE GRANTED
CERTIORARI.  371 U.S. 961.  FOR REASONS GIVEN HEREAFTER, WE HOLD THAT
THE TAXPAYERS' CLAIM WAS BARRED BY LIMITATIONS AND, ACCORDINGLY,
REVERSE THE JUDGMENT BELOW. 


"(Q)  TRANSFER OF PATENT RIGHTS. 

"(1)  GENERAL RULE.  - A TRANSFER (OTHER THAN BY GIFT, INHERITANCE,
OR DEVISE) OF PROPERTY CONSISTING OF ALL SUBSTANTIAL RIGHTS TO A
PATENT, OR AN UNDIVIDED INTEREST THEREIN WHICH INCLUDES A PART OF ALL
SUCH RIGHTS, BY ANY HOLDER SHALL BE CONSIDERED THE SALE OR EXCHANGE OF
A CAPITAL ASSET HELD FOR MORE THAN 6 MONTHS, REGARDLESS OF WHETHER OR
NOT PAYMENTS IN CONSIDERATION OF SUCH TRANSFER ARE: 

"(A)  PAYABLE PERIODICALLY OVER A PERIOD GENERALLY COTERMINOUS WITH
THE TRANSFEREE'S USE OF THE PATENT, OR: 

"(B)  CONTINGENT ON THE PRODUCTIVITY, USE, OR DISPOSITION OF THE
PROPERTY TRANSFERRED. 

     *    *         *         *         * 

"(4)  APPLICABILITY.  - THIS SUBSECTION SHALL APPLY WITH RESPECT TO
ANY AMOUNT RECEIVED, OR PAYMENT MADE, PURSUANT TO A TRANSFER DESCRIBED
IN PARAGRAPH (1) IN ANY TAXABLE YEAR BEGINNING AFTER MAY 31, 1950,
REGARDLESS OF THE TAXABLE YEAR IN WHICH SUCH TRANSFER OCCURRED." 

SINCE OUR SOLE CONCERN IS THE INTENT OF CONGRESS IN ADDING THIS
LEGISLATIVE BACKGROUND OF THE ENACTMENT.  IN 1946, THE COMMISSIONER OF
INTERNAL REVENUE ANNOUNCED HIS ACQUIESCENCE IN EDWARD C. MYERS, 6 T.C.
258, IN WHICH THE TAX COURT HELD, AS TO A SO-CALLED "AMATEUR" INVENTOR,
(FN4) THAT THE TRANSFER BY EXCLUSIVE LICENSE OF ALL SUBSTANTIAL RIGHTS
UNDER A PATENT WAS A SALE OR EXCHANGE OF A CAPITAL ASSET,
NOTWITHSTANDING THAT THE CONSIDERATION FOR THE LICENSE WAS ROYALTIES
BASED ON A PERCENTAGE OF THE SELLING PRICE OF ARTICLES SOLD UNDER THE
PATENT, AND PAID ANNUALLY.  1946-1 CUM. BULL.  3.  ON MARCH 20, 1950,
THE COMMISSIONER REVERSED HIS POSITION AND ANNOUNCED THE WITHDRAWAL OF
HIS ACQUIESCENCE IN MYERS, STATING THAT ROYALTIES MEASURED OR PAID AS
IN THAT CASE WOULD BE TAXED AS ORDINARY INCOME.  MIM.  6490, 1950-1
CUM.  BULL.  9.  THE NEW RULING WAS DECLARED APPLICABLE TO TAX YEARS
BEGINNING AFTER MAY 31, 1950.  IN THE YEARS FOLLOWING 1950, THE
COMMISSIONER ADHERED TO HIS NEW POSITION, DESPITE ITS REJECTION BY
SEVERAL COURTS.  (FN5)  THE ISSUE WAS SETTLED FOR THE FUTURE IN 1954 BY
THE ENACTMENT OF SEC. 1235 OF THE 1954 CODE, 26 U.S.C. SEC. 1235, 68A
STAT. 329.  SECTION 1235, APPLICABLE ONLY PROSPECTIVELY, CONTAINS
PROVISIONS IDENTICAL IN RELEVANT PART TO THOSE QUOTED ABOVE FROM SEC.
117(Q).  (FN6)  THUS, PRIOR TO MAY 31, 1950, WITH EXCEPTIONS NOTED
HEREAFTER, (FN7) AND AGAIN FROM THE BEGINNING OF 1954, THE LAW HAS BEEN
THAT FOR WHICH THE TAXPAYERS CONTEND IN THEIR REFUND SUIT. 

IN 1955, THE COMMISSIONER ISSUED A FURTHER RULING DECLARING THAT HE
WOULD ADHERE TO HIS 1950 RULING FOR TAX YEARS BEGINNING AFTER MAY 31,
1950, AND PRIOR TO 1954.  REV. RULE 55-58, 1955-1 CUM. BULL.  97.  AS A
RESULT, THE COMMISSIONER'S POSITION WAS THAT DURING THE PERIOD FROM MAY
31, 1950 TO 1954 THERE WAS A GAP IN THE CONSISTENT APPLICATION OF THE
LAW AS ADMINISTRATIVELY AND JUDICIALLY ESTABLISHED IN 1946.  IT IS
EVIDENT THAT CONGRESS INTENDED TO FILL THIS GAP WHEN IT ENACTED SEC.
117(Q) IN 1956.  BUT WE ARE NOT ABLE TO SAY THAT CONGRESS INTENDED
THEREBY TO REOPEN FOR RETROACTIVE ADJUSTMENT TAX YEARS WITH RESPECT TO
WHICH REFUND CLAIMS WERE ALREADY BARRED BY LIMITATIONS. 

OF LIMITATIONS TO REFUND CLAIMS THEN FINALLY BARRED.  ON ITS FACE, SEC.
117(Q) DOES NO MORE THAN OVERRULE THE COMMISSIONER'S POSITION ON A
MATTER OF SUBSTANTIVE LAW RESPECTING THE YEARS 1950-1954.  NOR IS THERE
ANYTHING IN THE LEGISLATIVE HISTORY WHICH SUGGESTS THAT SUCH A WAIVER
IS TO BE IMPLIED.  ON THE CONTRARY, SUCH INDICATIONS AS THERE ARE
SUGGEST THAT CONGRESS INTENDED ONLY TO TERMINATE LITIGATION THEN
PENDING.  REPRESENTATIVE COOPER, THEN CHAIRMAN OF THE HOUSE WAYS AND
MEANS COMMITTEE, STATED ON THE FLOOR OF THE HOUSE: 

"THE RELIEF PROVIDED BY SECTION 1235 (OF THE 1954 CODE) IS AVAILABLE
ONLY WITH RESPECT TO AMOUNTS RECEIVED IN ANY TAXABLE YEAR TO WHICH THE
1954 CODE APPLIES.  AS THE RESULT OF THIS AND THE ANNOUNCED POLICY OF
THE INTERNAL REVENUE SERVICE TO CONTINUE ITS INSISTENCE ON ITS POSITION
FOR YEARS BEGINNING AFTER MAY 31, 1950, AND PRIOR TO EFFECTIVE DATE OF
THE 1954 CODE TAXPAYERS ARE STILL CONFRONTED WITH LITIGATION FOR
TAXABLE YEARS FALLING IN THIS PERIOD IN ORDER TO SECURE THE RIGHTS TO
WHICH THE COURTS, WITH PRACTICAL UNANIMITY, HAVE HELD THEY ARE
ENTITLED. 

"H.R. 6143 (THE ORIGINAL VERSION OF SEC. 117(Q)) ELIMINATES THE
NECESSITY FOR SUCH LITIGATION BY MAKING THE PROVISIONS OF THE 1954 CODE
AVAILABLE TO YEARS BEGINNING AFTER MAY 31, 1950."  101 CONG. REC. 12708
(AUG. 1, 1955). 

THERE ARE OTHER INDICATIONS THAT CONGRESS HAD ONLY THIS LIMITED
INTENTION.  IT IS ABUNDANTLY CLEAR THAT CONGRESS IS AWARE OF THE
LIMITATIONS PROBLEM AS IT AFFECTS RETROACTIVE TAX LEGISLATION.  ON
NUMEROUS OCCASIONS, CONGRESS HAS INCLUDED AN EXPRESS PROVISION
REOPENING BARRED TAX YEARS.  WE NEED REFER HERE TO ONLY A FEW
EXAMPLES.  SECTION 14 OF THE TECHNICAL AMENDMENTS ACT OF 1958, 26
U.S.C. SEC. 172(F)(3), (4), (G)(3), 72 STAT. 1606, 1611, PROVIDED RULES
FOR COMPUTING NET OPERATING LOSS DEDUCTIONS FOR TAX YEARS STARTING IN
1953 AND EXTENDING INTO 1954 AND SHORT TAX YEARS WHOLLY WITHIN 1954. 
SUBSECTION (C), ADDED TO THE HOUSE BILL BY THE SENATE, PROVIDED
EXPRESSLY FOR A SIX-MONTH PERIOD DURING WHICH BARRED CLAIMS COULD BE
MADE.  THE ADDITION WAS EXPLAINED IN THE SENATE REPORT AS FOLLOWS: 

"YOUR COMMITTEE DID AMEND THE HOUSE PROVISION, HOWEVER, IN ONE
RESPECT BECAUSE 3 YEARS HAVE NOW ELAPSED SINCE 1954 AND MANY OF THE
TRANSITIONAL YEARS WITH WHICH THIS PROVISION IS CONCERNED ARE NOW
CLOSED YEARS.  TO PREVENT RELIEF FROM BEING DENIED IN SUCH CASES, YOUR
COMMITTEE AMENDS THIS PROVISION TO PROVIDE THAT IF A REFUND OR CREDIT
WITH RESPECT TO THIS PROVISION IS PREVENTED ON THE DATE OF ENACTMENT OF
THIS BILL OR WITHIN 6 MONTHS AFTER THAT TIME BY THE OPERATION OF ANY
LAW OR RULE OF LAW (EXCEPT CLOSING AGREEMENTS OR COMPROMISES) REFUND OR
CREDIT, NEVERTHELESS, IS TO BE ALLOWED IF THE CLAIM IS FILED WITHIN 6
MONTHS OF THE DATE OF ENACTMENT OF THIS BILL."  S. REP. NO. 1983, 85TH
CONG., 2D SESS. 24. 

AGAIN, BY ACT OF AUGUST 9, 1955, 69 STAT. 607, CONGRESS PROVIDED A
ONE-YEAR GRACE PERIOD FOR FILING OTHERWISE BARRED CLAIMS BASED ON SEC.
345 OF THE REVENUE ACT OF 1951, 65 STAT.  452, 517, A RETROACTIVE
RELIEF MEASURE AFFECTING TRUST INCOME ACCUMULATED FOR MEMBERS OF THE
ARMED SERVICES DYING IN ACTIVE SERVICE ON OR AFTER DECEMBER 7, 1941,
AND BEFORE JANUARY 1, 1948.  THE HOUSE REPORT ON THE BILL STATED: 

"NO RELIEF WAS PROVIDED IN THE 1951 ACT, HOWEVER, FOR CASES WHERE
REFUNDS OR CREDITS WERE BARRED BY THE EXPIRATION OF THE PERIOD OF
LIMITATIONS, BY PRIOR COURT DECISIONS, OR FOR OTHER SIMILAR REASONS. 
YOUR COMMITTEE IS OF THE OPINION THAT THIS FAILURE WAS AN OVERSIGHT,
AND IT BELIEVES THAT IT IS ONLY EQUITABLE TO EXTEND TREATMENT
EQUIVALENT TO THAT PROVIDED IN SECTION 345 OF THE REVENUE ACT OF 1951
TO CASES WHERE REFUNDS OR CREDITS WERE BARRED BY OPERATION OF LAW OR
RULE OF LAW (OTHER THAN CLOSING AGREEMENTS OR COMPROMISES)."  H.R. REP.
NO. 1438, 84TH CONG., 1ST SESS. 1-2.  (FN8) 

THE MOST STRIKING EVIDENCE OF THIS SORT, HOWEVER, WHICH WE THINK IS
ALL BUT CONCLUSIVE, IS FOUND IN SEC. 2 OF THE VERY ACT HERE IN
DISPUTE.  THAT SECTION, RETROACTIVELY MODIFYING SEC. 106 OF THE 1939
CODE, AFFECTED THE TAXATION OF PAYMENTS RECEIVED BY A TAXPAYER FROM THE
UNITED STATES WITH RESPECT TO A CLAIM ARISING OUT OF A CONSTRUCTION
CONTRACT FOR THE ARMED SERVICES.  SUBSECTION (B) DEALS WITH THE
LIMITATIONS PROBLEM AS FOLLOWS: 

"(B)  THE AMENDMENT MADE BY THIS SECTION SHALL APPLY WITH RESPECT TO
TAXABLE YEARS ENDING AFTER DECEMBER 31, 1948, NOTWITHSTANDING THE
OPERATION OF ANY LAW OR RULE OF LAW (OTHER THAN SECTION 3760 OF THE
INTERNAL REVENUE CODE OF 1939 OR SECTION 7121 OF THE INTERNAL REVENUE
CODE OF 1954, RELATING TO CLOSING AGREEMENTS, AND OTHER THAN SECTION
3761 OF THE INTERNAL REVENUE CODE OF 1939 OR SECTION 7122 OF THE
INTERNAL REVENUE CODE OF 1954, RELATING TO COMPROMISES). 
NOTWITHSTANDING THE PRECEDING SENTENCE, NO CLAIM FOR CREDIT OR REFUND
OF ANY OVERPAYMENT RESULTING FROM THE AMENDMENT MADE BY THIS SECTION
SHALL BE ALLOWED OR MADE AFTER THE PERIOD OF LIMITATION APPLICABLE TO
SUCH OVERPAYMENT, EXCEPT THAT SUCH PERIOD SHALL NOT EXPIRE BEFORE THE
EXPIRATION OF ONE YEAR AFTER THE DATE OF THE ENACTMENT OF THIS ACT." 
70 STAT. 405. 

THE COMMITTEE ADDED THE PROVISION BUT MADE NO COMPARABLE ADDITION TO
SEC. 1, WITH WHICH WE ARE CONCERNED, OR FOR THAT MATTER TO SEC. 3,
WHICH ALSO MADE RETROACTIVE CHANGES IN THE 1939 CODE.  IT IS PLAIN,
THEREFORE, THAT THE CONGRESS HAD THE LIMITATIONS PROBLEM IN MIND AT THE
VERY TIME THAT SEC. 117(Q) WAS ENACTED.  THE TAXPAYERS OFFER NO
JUSTIFICATION FOR DISREGARDING THE DIFFERENCE IN THIS RESPECT BETWEEN
SECS. 1 AND 2, DISRESPECT FOR WHICH WOULD RENDER THE CAREFULLY DRAWN
LIMITATIONS PROVISIONS OF THE LATTER SECTION SURPLUSAGE. 

BOTH THE TAXPAYERS AND THE GOVERNMENT RELY ON UNITED STATES V. BORDEN
CO., 308 U.S. 188,198, WHERE THIS COURT SAID:  "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 CORRECTNESS OF THIS STATEMENT IS NOT
TO BE DOUBTED.  BUT THE PAUCITY OF ITS ASSISTANCE HERE IS ILLUSTRATED
BY THE FACT THAT BOTH PARTIES RELY ON IT.  THE TAXPAYERS PLACE THE
SECOND SENTENCE IN ITALICS, AND URGE THAT SEC. 117(Q) AND THE GENERAL
STATUTE OF LIMITATIONS ARE BOTH GIVEN EFFECT IF THE LIMITATIONS PERIOD
IS MADE TO RUN FROM THE DATE OF ENACTMENT OF SEC. 117(Q).  THE
GOVERNMENT PRESSES THE FIRST SENTENCE, AND URGES THAT THE TAXPAYERS'
POSITION, IN EFFECT, REPEALS THE STATUTE OF LIMITATIONS PRO TANTO. 
THERE ARE DIFFICULTIES WITH BOTH OF THESE ANALYSES.  OBVIOUSLY, NEITHER
OF THEM DOES MORE THAN CAST A CONCLUSION IN TERMS OF THE GENERAL RULES
ISOLATED FROM THE PARTICULAR CIRCUMSTANCES OF THIS CASE.  NOR CAN THE
DOCTRINE THAT REMEDIAL LEGISLATION IS ENTITLED TO LIBERAL CONSTRUCTION,
UPON WHICH THE TAXPAYERS ALSO RELY, BE STRETCHED TO EXPAND THE REACH OF
A STATUTE OF SUCH EVIDENT LIMITED PURPOSE AS THIS ONE. 

A MORE DIFFICULT QUESTION IS PRESENTED BY THE FACT THAT SEC. 117(Q)
GOES BEYOND THE PROBLEM CREATED BY THE COMMISSIONER'S VACILLATION
AFFECTING TAX YEARS BETWEEN 1946 AND 1954.  BY TREATING ROYALTY
PAYMENTS AS CAPITAL GAINS WITHOUT REGARD TO WHETHER THE PATENT RIGHTS
TRANSFERRED WERE CAPITAL ASSETS, SEC. 117(Q) MADE THE FAVORABLE
TREATMENT AVAILABLE TO PROFESSIONAL AS WELL AS AMATEUR INVENTORS. 
(FN9)  IN ADDITION, ALL ROYALTIES ARE TREATED AS LONGTERM CAPITAL GAINS
WHETHER OR NOT THE RIGHTS TRANSFERRED HAD BEEN HELD FOR THE REQUISITE
PERIOD.  THESE PROVISIONS MADE CLEAR CHANGES IN THE LAW AS IT WAS IN
1950 AND SUBSEQUENT YEARS UP TO 1954.  INSOFAR AS THEY ARE APPLICABLE
TO YEARS FOR WHICH MOST CLAIMS FOR REFUND WERE BARRED IN 1956, THE
GOVERNMENT'S POSITION RENDERS THE PROVISIONS WITHOUT EFFECT.    IT IS,
OF COURSE, OUR DUTY TO GIVE EFFECT TO ALL PORTIONS OF A STATUTE IF THAT
IS POSSIBLE.  E. G., UNITED STATES V. MENASCHE, 348 U.S. 528, 538-539. 
BUT THIS GENERAL PRINCIPLE IS MEANT TO GUIDE THE COURTS IN FURTHERING
THE INTENT OF THE LEGISLATURE, NOT OVERRIDING IT.  WHEN RIGID ADHERENCE
TO THE GENERAL RULE WOULD REQUIRE DISREGARD OF CLEAR INDICATIONS TO THE
CONTRARY, THE RULE MUST YIELD.  TWO CONSIDERATIONS COMPEL THAT RESULT
HERE.  FIRST, NOT ONLY THE ADMINISTRATIVE AND LEGISLATIVE HISTORY OF
SEC. 117(Q), DISCUSSED ABOVE, BUT ALSO THE SELECTION OF MAY 31, 1950,
AS THE OPERATIVE DATE LEAVE NO DOUBT THAT CONGRESS WAS PRIMARILY
CONCERNED TO SETTLE THE LARGE VOLUME OF PENDING LITIGATION ARISING OUT
OF THE COMMISSIONER'S 1950 POSITION, REAFFIRMED IN 1955.  (FN10)  THE
DATE SELECTED HAS NO RELEVANCE EITHER TO THE STATUS OF PROFESSIONAL
INVENTORS OR TO THE PERIOD FOR WHICH PATENT RIGHTS MUST BE HELD. 
SECOND, THERE IS A READY EXPLANATION FOR THE INCLUSION OF THE
ADDITIONAL PROVISIONS.  WITH IRRELEVANT EXCEPTIONS, SEC. 117(Q) TRACKS
THE LANGUAGE OF SEC. 1235 OF THE 1954 CODE.  PP. 61-62 AND NOTE 6,
SUPRA.  IT WAS WHOLLY NATURAL FOR CONGRESS TO DEAL WITH THE PRE-1954
PERIOD BY ADOPTING THE LANGUAGE OF THE 1954 CODE ON THE SAME SUBJECT. 
THE HOUSE REPORT ON THE BILL LEAVES NO DOUBT THAT THIS IS WHAT ACTUALLY
OCCURRED.  H.R. REP. NO. 1607, 84TH CONG., 1ST SESS. 1-2.  IT IS A FAIR
INFERENCE THAT BUT FOR THE COMMISSIONER'S OBDURACY RESPECTING AMATEUR
INVENTORS, SEC. 117(Q) WOULD NOT HAVE BEEN CONCEIVED.  THERE IS NOTHING
TO INDICATE THAT FOR SOME OTHER REASON CONGRESS IN 1956 HAD SECOND
THOUGHTS ABOUT ITS FAILURE IN 1954 TO MAKE THESE IDENTICAL PROVISIONS
OF SEC. 1235 RETROACTIVE.  TO GIVE THE PROVISIONS IN QUESTION THE
CONTROLLING WEIGHT THAT IS CLAIMED FOR THEM ON THE ISSUE BEFORE US,
WOULD ALLOW THE TAIL TO WAG THE DOG.  OF COURSE, ALL OF THE AMENDATORY
PROVISIONS OF SEC. 117(Q) ARE FULLY EFFECTIVE WITH RESPECT TO YEARS AND
CLAIMS NOT BARRED. 

FINALLY, THE TAXPAYERS SUGGEST THAT UNLESS THE STATUTE OF LIMITATIONS
IS DEEMED WAIVED, A PREMIUM IS PLACED ON TAXPAYER OPPOSITION TO
ADMINISTRATIVE RULINGS, SINCE ONLY THOSE TAXPAYERS WHO CONTESTED THE
COMMISSIONER'S POSITION WILL NOW BE ABLE TO CLAIM A REFUND.  BUT IN
VIEW OF THE DOUBT SURROUNDING THE RULINGS INVOLVED IN THIS CASE,
EMPHASIZED BY THE CASES OVERRULING THE COMMISSIONER, THIS ARGUMENT HAS
LESS FORCE THAN IT MIGHT IN ANOTHER CONTEXT.  IN ANY EVENT, THIS
PROBLEM ALWAYS ATTENDS RETROACTIVE LEGISLATION OF THIS SORT, AND
ACCEPTANCE OF THE TAXPAYERS' ARGUMENT WOULD LEAD TO THE AUTOMATIC
WAIVER OF THE STATUTE OF LIMITATIONS IN EVERY CASE.  WHETHER OR NOT
THIS SHOULD BE DONE IS A MATTER FOR CONGRESS TO DECIDE.  WHERE CONGRESS
HAS DECIDED OTHERWISE, THIS COURT HAS BUT ONE COURSE.  REVERSED. 

FN1  SECTION 322(B)(1) PROVIDES: 

"UNLESS A CLAIM FOR CREDIT OR REFUND IS FILED BY THE TAXPAYER WITHIN
THREE YEARS FROM THE TIME THE RETURN WAS FILED BY THE TAXPAYER OR
WITHIN TWO YEARS FROM THE TIME THE TAX WAS PAID, NO CREDIT OR REFUND
SHALL BE ALLOWED OR MADE AFTER THE EXPIRATION OF WHICHEVER OF SUCH
PERIODS EXPIRES THE LATER.   IF NO RETURN IS FILED BY THE TAXPAYER,
THEN NO CREDIT OR REFUND SHALL BE ALLOWED OR MADE AFTER TWO YEARS FROM
THE TIME THE TAX WAS PAID, UNLESS BEFORE THE EXPIRATION OF SUCH PERIOD
A CLAIM THEREFOR IS FILED BY THE TAXPAYER." 

SIMILAR PROVISIONS ARE CONTAINED IN SEC. 6511(A), (B) OF THE INTERNAL
REVENUE CODE OF 1954, 26 U.S.C. SEC. 6511(A), (B), 68A STAT. 808. 

FN2  SECTION 7422 (A) PROVIDES: 

"NO SUIT OR PROCEEDING SHALL BE MAINTAINED IN ANY COURT FOR THE
RECOVERY OF ANY INTERNAL REVENUE TAX ALLEGED TO HAVE BEEN ERRONEOUSLY
OR ILLEGALLY ASSESSED OR COLLECTED, OR OF ANY PENALTY CLAIMED TO HAVE
BEEN COLLECTED WITHOUT AUTHORITY, OR OF ANY SUM ALLEGED TO HAVE BEEN
EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED, UNTIL A CLAIM FOR
REFUND OR CREDIT HAS BEEN DULY FILED WITH THE SECRETARY OR HIS
DELEGATE, ACCORDING TO THE PROVISIONS OF LAW IN THAT REGARD, AND THE
REGULATIONS OF THE SECRETARY OR HIS DELEGATE ESTABLISHED IN PURSUANCE
THEREOF." 

FN3  COMPARE UNITED STATES V. DEMPSTER, 265 F.2D 666 (C.A. 6TH CIR.),
AND TOBIN V. UNITED STATES, 264 F.2D 845 (C.A. 5TH CIR.), WITH THE
DECISION IN THIS CASE AND HOLLANDER V. UNITED STATES, 248 F.2D 247
(C.A.2D CIR.), INVOLVING A SIMILAR PROBLEM. 

FN4  ONE NOT ENGAGED IN HOLDING PATENT RIGHTS "'PRIMARILY FOR SALE TO
CUSTOMERS IN THE ORDINARY COURSE OF HIS TRADE OR BUSINESS,'" 6 T.C.
266, AS DISTINGUISHED FROM A "PROFESSIONAL" INVENTOR WHO IS SO
ENGAGED. 

FN5  SEE KRONNER V. UNITED STATES, 126 CT. CL. 156, 110 F. SUPP. 730;
ALLEN V. WERNER, 190 F.2D 840 (C.A. 5TH CIR.).  THE COMMISSIONER'S
POSITION WAS SUSTAINED BY THE SECOND CIRCUIT IN BLOCH V. UNITED STATES,
200 F.2D 63. 

PRIOR TO 1946, SEVERAL COURTS HAD TAKEN THE SAME POSITION. 
COMMISSIONER V. CELANESE CORP., 78 U.S. APP. D.C. 292, 140 F.2D 339;
COMMISSIONER V. HOPKINSON, 126 F.2D 406 (C.A.2D CIR.). 

FN6  THE RELEVANT PORTIONS OF SEC. 1235 ARE: 

"A TRANSFER (OTHER THAN BY GIFT, INHERITANCE, OR DEVISE) OF PROPERTY
CONSISTING OF ALL SUBSTANTIAL RIGHTS TO A PATENT, OR AN UNDIVIDED
INTEREST THEREIN WHICH INCLUDES A PART OF ALL SUCH RIGHTS, BY ANY
HOLDER SHALL BE CONSIDERED THE SALE OR EXCHANGE OF A CAPITAL ASSET HELD
FOR MORE THAN 6 MONTHS, REGARDLESS OF WHETHER OR NOT PAYMENTS IN
CONSIDERATION OF SUCH TRANSFER ARE: 

"(1)  PAYABLE PERIODICALLY OVER A PERIOD GENERALLY COTERMINOUS WITH
THE TRANSFEREE'S USE OF THE PATENT, OR: 

"(2)  CONTINGENT ON THE PRODUCTIVITY, USE, OR DISPOSITION OF THE
PROPERTY TRANSFERRED." 

FN7  SECTION 1235 OF THE 1954 CODE, AND SEC. 117(Q) OF THE 1939 CODE
WHICH FOLLOWS SEC. 1235, MADE CHANGES IN THE PRIOR LAW WITH RESPECT TO
THE STATUS OF PROFESSIONAL INVENTORS AND THE "HOLDING PERIOD" FOR BOTH
AMATEUR AND PROFESSIONAL INVENTORS.  SEE PP. 67-69, INFRA. 

FN8  FOR OTHER EXAMPLES OF RETROACTIVE TAX MEASURES IN WHICH EXPRESS
PROVISION WAS MADE FOR THE LIMITATIONS PROBLEM, SEE TECHNICAL
AMENDMENTS ACT OF 1958, SECS. 92, 93, 100, 72 STAT.  1606, 1667, 1668,
1673; ACT OF SEPTEMBER 14, 1960, SEC. 5, 74 STAT. 1010, 1013; REVENUE
ACT OF 1962, SECS. 26, 27, 76 STAT. 960, 1067. 

FOR EXAMPLES OF SUCH MEASURES IN WHICH NO PROVISION WAS MADE TO
EXTEND THE PERIOD OF LIMITATIONS, SEE ACT OF FEBRUARY 11, 1958, 72
STAT. 3; ACT OF FEBRUARY 11, 1958, 72 STAT. 4; TECHNICAL AMENDMENTS ACT
OF 1958, SEC. 103, 72 STAT. 1606, 1675; REVENUE ACT OF 1962, SEC. 30,
76 STAT. 960, 1069. 

CONTRARY TO FEARS SEEMINGLY ENTERTAINED BY ONE OF THE AMICI IN THIS
CASE, WE DO NOT SUGGEST THAT CONGRESSIONAL PRACTICE IN THIS REGARD
GIVES RISE TO A PRESUMPTION THAT WHERE CONGRESS HAS NOT PROVIDED
EXPRESSLY FOR A SPECIAL LIMITATIONS PERIOD IN A RETROACTIVE TAX
STATUTE, THE RELEVANT GENERAL STATUTE OF LIMITATIONS WAS INTENDED TO
APPLY.  THE SIGNIFICANCE OF SUCH CONGRESSIONAL SILENCE IS TO BE JUDGED
ON A CASE-BY-CASE BASIS, AS WITH ALL QUESTIONS OF STATUTORY
CONSTRUCTION. 

FN9  SUCH RIGHTS WOULD NOT BE CAPITAL ASSETS IF THE PATENTS WERE HELD
FOR SALE IN THE ORDINARY COURSE OF BUSINESS.  INTERNAL REVENUE CODE OF
1954, SEC. 1221, 26 U.S.C. SEC. 1221, 68A STAT. 321. 

THE TAXPAYERS MAKE MUCH OF THE ASSERTED FACT THAT MRS. ZACKS WAS A
PROFESSIONAL INVENTOR, REASONING THEREFROM THAT, AS TO HER AT LEAST,
SEC. 117(Q) CLEARLY ESTABLISHED A NEW RIGHT.  CF. LORENZ V. UNITED
STATES, - CT. CL. - , 296 F.2D 746.  THE COURT OF CLAIMS MADE NO
FINDING AS TO WHETHER MRS. ZACKS WAS AN AMATEUR OR PROFESSIONAL
INVENTOR.  WHATEVER MAY BE THE VALIDITY AND SIGNIFICANCE IN OTHER
CONTEXTS OF THE DISTINCTION BETWEEN CREATION OF NEW RIGHTS AND
CLARIFICATION OF EXISTING RIGHTS, WE THINK THAT DISTINCTION IS NOT
CONTROLLING HERE, SINCE CONGRESS HAS EVIDENCED ITS INTENT MORE
DIRECTLY. 

FN10  THE EXISTENCE OF A SUBSTANTIAL AMOUNT OF SUCH LITIGATION IS NOT
QUESTIONED IN THIS CASE.  SOME OF IT HAS BEEN COLLECTED AT PAGES 35-36
OF THE GOVERNMENT'S BRIEF. 

MR. JUSTICE BLACK AGREES WITH THE COURT OF CLAIMS AND WOULD AFFIRM
ITS JUDGMENT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















PARSONS V. CHESAPEAKE & OHIO RAILWAY CO. 375 U.S. 71 


NO. 32.  ARGUED OCTOBER 23, 1963.  - DECIDED NOVEMBER 12, 1963.  - 307
F.2D 924, REVERSED. 


A FEDERAL DISTRICT COURT IS NOT DIVESTED OF DISCRETION TO DENY A
MOTION UNDER 28 U.S.C. SEC. 1404(A) TO TRANSFER A SUIT BROUGHT THEREIN
TO ANOTHER DISTRICT, WHEN A SUIT UPON THE SAME CAUSE OF ACTION, BROUGHT
EARLIER IN A STATE COURT IN THE SAME CITY, HAD BEEN DISMISSED BY THE
STATE COURT ON THE GROUND OF FORUM NON CONVENIENS.  PP. 71-74. 

PARSONS, UNITED STATES DISTRICT JUDGE, V. CHESAPEAKE & OHIO RAILWAY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER A FEDERAL DISTRICT
JUDGE IN AN ACTION BROUGHT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
IS DIVESTED OF ALL DISCRETION TO DENY A SEC. 1404(A) TRANSFER MOTION,
(FN1) WHEN A SUIT UPON THE SAME CAUSE OF ACTION, EARLIER BROUGHT IN A
STATE COURT IN THE SAME CITY, WAS DISMISSED BY THE STATE COURT ON THE
GROUND OF FORUM NON CONVENIENS. 

JACK FILBRUN COMMENCED A FEDERAL EMPLOYERS' LIABILITY ACT SUIT FOR
PERSONAL INJURIES AGAINST THE RESPONDENT RAILROAD IN THE CIRCUIT COURT
OF COOK COUNTY, ILLINOIS.  ON THE RESPONDENT'S MOTION THE STATE COURT
DISMISSED THE ACTION ON THE GROUND OF FORUM NON CONVENIENS.  FILBRUN
DID NOT APPEAL.  INSTEAD, HE FILED A COMPLAINT GROUNDED ON THE SAME
CAUSE OF ACTION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, SITTING IN CHICAGO.  THE RESPONDENT FILED A
MOTION PURSUANT TO 28 U.S.C. SEC. 1404(A), REQUESTING THAT THE CASE BE
TRANSFERRED TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF MICHIGAN, SITTING IN GRAND RAPIDS.  THE DISTRICT JUDGE
DENIED THE MOTION, AND THE RESPONDENT SOUGHT MANDAMUS FROM THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT TO COMPEL THE JUDGE TO ORDER THE
TRANSFER.  ON REHEARING, THE COURT OF APPEALS, ONE JUDGE DISSENTING,
VACATED A PREVIOUS JUDGMENT REFUSING MANDAMUS, AND ISSUED A WRIT
DIRECTING THE TRANSFER.   307 F.2D 924.  WE GRANTED CERTIORARI, 371
U.S. 946, TO REVIEW THE ACTION OF THE COURT OF APPEALS.  WE REVERSE THE
JUDGMENT FOR THE REASONS STATED BELOW. 

UNDER ILLINOIS LAW A STATE COURT'S DETERMINATION TO DISMISS A CASE ON
THE GROUND OF FORUM NON CONVENIENS REQUIRES CONSIDERATION OF SIMILAR
FACTORS - CONVENIENCE OF THE PARTIES AND OF WITNESSES AND THE INTERESTS
OF JUSTICE - TO THOSE TO BE CONSIDERED BY A FEDERAL COURT IN APPLYING
SEC. 1404(A).  (FN2)  THE COURT OF APPEALS ACCORDINGLY REASONED THAT
EVERY POINT NECESSARY TO BE PASSED UPON BY THE FEDERAL DISTRICT JUDGE
ON RESPONDENT'S SEC. 1404(A) TRANSFER MOTION HAD ALREADY BEEN
ADJUDICATED ADVERSELY TO THE PLAINTIFF IN THE STATE COURT, AND
CONCLUDED THAT "THE DISTRICT COURT HAD NO DISCRETION BUT TO RECOGNIZE
THE AUTHORITATIVE VALUE OF THE STATE COURT'S RULING, MADE IN A CASE
COMMENCED THERE BY PLAINTIFF."  307 F.2D, AT 926. 

THE DISCRETIONARY DETERMINATIONS OF BOTH THE STATE AND FEDERAL COURTS
IN THIS CASE REQUIRED, TO BE SURE, EVALUATIONS OF SIMILAR, BUT BY NO
MEANS IDENTICAL, OBJECTIVE CRITERIA.  HOWEVER, SINCE THE MATERIAL FACTS
UNDERLYING THE APPLICATION OF THESE CRITERIA IN EACH FORUM WERE
DIFFERENT IN SEVERAL RESPECTS, PRINCIPLES OF RES JUDICATA ARE NOT
APPLICABLE TO THE SITUATION HERE PRESENTED. 

THUS, FOR EXAMPLE, IN DETERMINING THAT COOK COUNTY WAS AN
INCONVENIENT FORUM, THE STATE COURT IN THIS CASE COULD APPROPRIATELY
CONSIDER THE AVAILABILITY OF A STATE FORUM AT LUDINGTON, MICHIGAN,
WHERE FILBRUN'S ALLEGED INJURY HAD OCCURRED.  BUT SINCE THERE IS NO
FEDERAL COURT IN LUDINGTON, THE FEDERAL DISTRICT JUDGE IN MAKING HIS
DETERMINATION WAS LIMITED TO CONSIDERATION OF THE ALTERNATIVE OF A
TRIAL IN THE FEDERAL COURT IN GRAND RAPIDS, A CITY SOME 60 MILES FROM
LUDINGTON.  OBVIOUSLY, THE QUESTION WHETHER THE CONVENIENCE OF THE
PARTIES AND OF THE WITNESSES WOULD BE BETTER SERVED BY A TRIAL IN A
STATE COURT IN LUDINGTON IS NOT THE SAME QUESTION AS WHETHER THOSE
INTERESTS WOULD BE BETTER SERVED BY A TRIAL IN A FEDERAL COURT IN GRAND
RAPIDS.  SIMILARLY, A TRIAL JUDGE WEIGHING THE INTERESTS OF JUSTICE
COULD LEGITIMATELY CONSIDER THE CONDITION OF HIS COURT'S DOCKET AN
IMPORTANT FACTOR.  (FN3) WHILE DOCKET CONGESTION IS A PROBLEM FACING
ALL TRIAL COURTS IN LARGE METROPOLITAN AREAS, THERE IS NOTHING TO SHOW
THAT THE PROBLEM IN THE FEDERAL COURT IN CHICAGO IS IDENTICAL IN EITHER
NATURE OR QUANTITY TO THE PROBLEM IN THE COOK COUNTY COURT SYSTEM. 

THESE CONSIDERATIONS NO MORE THAN ILLUSTRATE THE MANY VARIABLES WHICH
MIGHT AFFECT THE EXERCISE OF DISCRETION BY A STATE COURT, AS CONTRASTED
TO A FEDERAL COURT, IN ANY GIVEN CASE.  SINCE DIFFERENT FACTUAL
CONSIDERATIONS MAY BE INVOLVED IN EACH COURT'S DETERMINATION, WE HOLD
THAT A PRIOR STATE COURT DISMISSAL ON THE GROUND OF FORUM NON
CONVENIENS CAN NEVER SERVE TO DIVEST A FEDERAL DISTRICT JUDGE OF THE
DISCRETIONARY POWER VESTED IN HIM BY CONGRESS TO RULE UPON A MOTION TO
TRANSFER UNDER SEC. 1404(A). 

IN ITS ORIGINAL OPINION IN THIS CASE, THE COURT OF APPEALS FOUND THAT
THERE HAD BEEN NO ABUSE OF DISCRETION BY THE DISTRICT JUDGE IN DENYING
THE MOTION FOR TRANSFER.  WE DO NOT READ THE OPINION ON REHEARING AS
HAVING DISTURBED THAT FINDING, BUT ONLY AS HAVING DETERMINED THAT THE
DISTRICT JUDGE HAD BEEN DIVESTED OF POWER TO EXERCISE HIS DISCRETION AT
ALL - A DETERMINATION WE HAVE NOW FOUND TO BE ERRONEOUS.  ACCORDINGLY,
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.  IT IS SO
ORDERED. 

FN1  28 U.S.C. SEC. 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." 

FN2  IN ADDITION, THE STATE COURT WAS REQUIRED TO DETERMINE WHETHER
PLAINTIFF'S SELECTION OF THAT COURT WAS DICTATED BY A DESIRE TO VEX AND
HARASS THE DEFENDANT.  COTTON V. L.&N.R. CO., 14 ILL. 2D 144, 174, 152
N.E.2D 385, 400. 

FN3  THE SUPREME COURT OF ILLINOIS HAS OBSERVED THAT A SERIOUS COURT
CONGESTION PROBLEM EXISTS IN THE COOK COUNTY COURTS.  14 ILL. 2D, AT
171, 152 N.E.2D, AT 398. 
..END :





ALDRICH V. ALDRICH 375 U.S. 75 


NO. 55.  ARGUED OCTOBER 24, 1963 - DECIDED NOVEMBER 12, 1963, THAT
QUESTIONS BE CERTIFIED TO SUPREME COURT OF FLORIDA.  - REPORTED BELOW:
147 W. VA 269, 127 S.E.2D 385. 


IT APPEARING THAT THIS CASE HINGES ON QUESTIONS OF FLORIDA LAW WITH
RESPECT TO WHICH THERE SEEM TO BE NO CLEAR CONTROLLING PRECEDENTS IN
THE DECISIONS OF THE SUPREME COURT OF FLORIDA, THIS COURT INITIATES
PROCEEDINGS TO CERTIFY* CERTAIN QUESTIONS TO THE SUPREME COURT OF
FLORIDA PURSUANT TO RULE 4.61 OF THE FLORIDA APPELLATE RULES.  PP. 75
76. 

*(FOR SUBSEQUENT CERTIFICATION OF SUCH QUESTIONS, SEE POST, P. 249.) 

ALDRICH V. ALDRICH ET AL. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

PER CURIAM. 

IT APPEARING THAT THERE ARE QUESTIONS OF FLORIDA LAW THAT ARE
DETERMINATIVE OF THIS CAUSE, WITH RESPECT TO WHICH QUESTIONS THERE SEEM
TO BE NO CLEAR CONTROLLING PRECEDENTS IN THE DECISIONS OF THE SUPREME
COURT OF FLORIDA, THIS COURT DESIRES TO CERTIFY TO THE SUPREME COURT OF
FLORIDA, PURSUANT TO RULE 4.61 OF THE FLORIDA APPELLATE RULES, THE
FOLLOWING QUESTIONS: 

1.  IS A DECREE OF ALIMONY THAT PURPORTS TO BIND THE ESTATE OF A
DECEASED HUSBAND PERMISSIBLE, IN THE ABSENCE OF AN EXPRESS PRIOR
AGREEMENT BETWEEN THE TWO SPOUSES AUTHORIZING OR CONTEMPLATING SUCH A
DECREE? 

2.  IF SUCH A DECREE IS NOT PERMISSIBLE, DOES THE ERROR OF THE COURT
ENTERING IT RENDER THAT COURT WITHOUT SUBJECT MATTER JURISDICTION WITH
REGARD TO THAT ASPECT OF THE CAUSE? 

3.  IF SUBJECT MATTER JURISDICTION IS THUS LACKING, MAY THAT DEFECT
BE CHALLENGED IN FLORIDA, AFTER THE TIME FOR APPELLATE REVIEW HAS
EXPIRED, (I) BY THE REPRESENTATIVES OF THE ESTATE OF THE DECEASED
HUSBAND OR (II) BY PERSONS TO WHOM THE DECEASED HUSBAND HAS ALLEGEDLY
TRANSFERRED PART OF HIS PROPERTY WITHOUT CONSIDERATION? 

4.  IF THE DECREE IS IMPERMISSIBLE BUT NOT SUBJECT TO SUCH ATTACK IN
FLORIDA FOR LACK OF SUBJECT MATTER JURISDICTION BY THOSE MENTIONED IN
SUBPARAGRAPH 3, MAY AN ATTACK BE SUCCESSFULLY BASED ON THIS ERROR OF
LAW IN THE RENDITION OF THE DECREE? 

THE PETITIONER, WITHIN 20 DAYS OF THE DATE OF THIS OPINION, IS
DIRECTED TO FILE WITH THE CLERK OF THIS COURT A PROPOSED CERTIFICATE
CONSISTENT WITH THIS OPINION AND CONFORMING TO THE REQUIREMENTS OF RULE
4.61, SUPRA, WITH PROOF OF SERVICE OF A COPY THEREOF ON COUNSEL FOR THE
RESPONDENTS.  WITHIN 10 DAYS THEREAFTER THE RESPONDENTS MAY FILE WITH
THE CLERK OF THIS COURT PROPOSED AMENDMENTS.  WHEN THE CERTIFICATE HAS
BEEN SETTLED IT WILL BE TRANSMITTED BY THE CLERK OF THIS COURT TO THE
CLERK OF THE SUPREME COURT OF FLORIDA FOR APPROPRIATE ACTION.  IT IS SO
ORDERED. 
..END :
















BARKER V. METROPOLITAN LIFE INSURANCE CO. 375 U.S. 77 


NO. 388.  DECIDED NOVEMBER 12, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 233 ORE.  111, 377 P.2D 162. 


BARKER ET UX. V. METROPOLITAN LIFE INSURANCE CO. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MISSISSIPPI POWER & LIGHT CO. V. CAPITAL ELECTRIC POWER ASSOCIATION 375
U.S. 77 


NO. 403.  DECIDED NOVEMBER 12, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  - MISS.  - , - , 149 SO. 2D 504, 150 SO. 2D
534. 


MISSISSIPPI POWER & LIGHT CO. ET AL. V. CAPITAL ELECTRIC POWER
ASSOCIATION ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN
AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :













COURTESY SANDWICH SHOP V. PORT OF NEW YORK AUTHORITY 375 U.S. 78 


NO. 399.  DECIDED NOVEMBER 12, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  12 N.Y.2D 379, 190
N.E.2D 402. 


COURTESY SANDWICH SHOP, INC., ET AL. V. PORT OF NEW YORK AUTHORITY ET
AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















ALDRICH V. ALDRICH 375 U.S. 249 


NO. 55.  ARGUED OCTOBER 24, 1963.  - DECIDED NOVEMBER 12, 1963, THAT
QUESTIONS BE CERTIFIED TO SUPREME COURT OF FLORIDA.  - QUESTIONS
CERTIFIED TO SUPREME COURT OF FLORIDA DECEMBER 16, 1963.  - REPORTED
BELOW: 147 W. VA. 269, 127 S.E.2D 385. 


ALDRICH V. ALDRICH ET AL. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

PER CURIAM. 

THIS COURT, ON ITS OWN MOTION, HEREBY CERTIFIES TO THE SUPREME COURT
OF FLORIDA, PURSUANT TO RULE 4.61, FLORIDA APPELLATE RULES, THE
QUESTIONS OF LAW HEREINAFTER SET FORTH. 

STATEMENT OF FACTS. 

PETITIONER, MARGUERITE LORETTA ALDRICH, WAS GRANTED A DIVORCE FROM
M.S. ALDRICH BY THE CIRCUIT COURT OF DADE COUNTY, FLORIDA, BY DECREE
ENTERED ON MAY 31, 1945.  THE JURISDICTION OF THAT COURT TO AWARD THE
DIVORCE WAS NOT CONTESTED THEN, NOR IS IT CONTESTED IN THIS ACTION. 

THE DIVORCE DECREE AWARDED ALIMONY TO THE PLAINTIFF, IN THE FOLLOWING
PROVISION: 

"4.  THAT THE DEFENDANT, MORIEL SIMEON ALDRICH, BE AND HE IS HEREBY
ORDERED AND REQUIRED TO PAY TO THE PLAINTIFF, MARGUERITE LORETTA
ALDRICH, THE MONTHLY SUM OF $250.00 AS AND FOR HER PERMANENT ALIMONY,
SAID SUM TO BE PAID TO HER MONTHLY AT THE OFFICE OF THE CLERK OF THE
CIRCUIT COURT OF MIAMI, DADE COUNTY, FLORIDA, AND IN THE EVENT THE
DEFENDANT, MORIEL SIMEON ALDRICH, SHALL PREDECEASE THE PLAINTIFF,
MARGUERITE LORETTA ALDRICH, SAID MONTHLY SUM OF $250.00 SHALL, UPON THE
DEATH OF SAID DEFENDANT, BECOME A CHARGE UPON HIS ESTATE DURING HER
LIFETIME; AND THIS COURT RETAINS JURISDICTION IN RESPECT THERETO  ...
." 

THERE WAS NO PRIOR EXPRESS AGREEMENT BETWEEN THE PARTIES THAT THE
ESTATE WOULD BE BOUND.  SUBSEQUENTLY, THE DIVORCE DEFENDANT PETITIONED
THE FLORIDA COURT FOR A REHEARING, WHICH WAS DENIED, BUT THE COURT
REDUCED ALIMONY FROM $250 TO $215 PER MONTH.  NO APPEAL WAS TAKEN BY
EITHER PARTY. 

M.S. ALDRICH DIED TESTATE, A RESIDENT OF PUTNAM COUNTY, WEST
VIRGINIA, ON MAY 29, 1958.  HIS WILL WAS DULY PROBATED IN PUTNAM COUNTY
AND PETITIONER FILED A CLAIM AGAINST THE ESTATE FOR ALIMONY WHICH
ACCRUED AFTER THE DEATH OF M.S. ALDRICH.  THE APPRAISAL OF THE ESTATE
SHOWED ASSETS OF $7,283.50.  PETITIONER COMMENCED THIS ACTION IN THE
CIRCUIT COURT OF PUTNAM COUNTY, WEST VIRGINIA, IN ORDER TO HAVE HER
RIGHTS IN THE ESTATE DETERMINED.  SHE ALSO DEMANDED THAT CERTAIN
ALLEGEDLY FRAUDULENT TRANSFERS OF REAL AND PERSONAL PROPERTY MADE BY
M.S. ALDRICH BE SET ASIDE AND THE PROPERTIES WHICH WERE THE SUBJECT OF
SUCH TRANSFERS ADMINISTERED AS A PART OF THE ESTATE, SO AS TO BE
SUBJECT TO HER CLAIM FOR ALIMONY UNDER THE FLORIDA DIVORCE DECREE. 

THE DEFENDANTS ARE IDENTIFIED AS FOLLOWS:  WILLIAM T. ALDRICH IS A
SON OF M.S. ALDRICH AND PETITIONER, AND NATALIE ALDRICH IS THE WIFE OF
WILLIAM T. ALDRICH.  ANGELA ALDRICH IS THE WIDOW OF M.S. ALDRICH.  M.S.
ALDRICH & ASSOCIATES, INC., IS A CORPORATION WHICH PETITIONER ALLEGES
WAS PRINCIPALLY, IF NOT SOLELY, OWNED BY M.S. ALDRICH DURING HIS
LIFETIME OR UNTIL SHORTLY BEFORE HIS DEATH.  ALDRICH-SLICER COMPANY IS
A CORPORATION, ONE OF THE ORGANIZERS OF WHICH WAS WILLIAM T. ALDRICH. 
JOHN C. WHITE IS EXECUTOR OF THE LAST WILL AND TESTAMENT OF M.S.
ALDRICH. 

ON MOTION FOR SUMMARY JUDGMENT BY THE DEFENDANTS, THE CIRCUIT COURT
OF PUTNAM COUNTY HELD THAT THE DECREE OF THE FLORIDA DIVORCE COURT WAS
INVALID AND UNENFORCEABLE INSOFAR AS IT PURPORTED TO IMPOSE UPON THE
ESTATE OF M.S. ALDRICH AN OBLIGATION TO PAY ALIMONY ACCRUING AFTER HIS
DEATH.  ON APPEAL, THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
AFFIRMED THE DECISION OF THE LOWER COURT, ONE JUDGE DISSENTING.  THE
MAJORITY AND MINORITY OPINIONS OF THE WEST VIRGINIA COURT ARE REPORTED
IN ALDRICH V. ALDRICH, 147 W.VA. 269, 127 S.E.2D 385.  REVIEW BY THIS
COURT WAS SOUGHT AND OBTAINED ON THE BASIS OF ART. IV, SEC. 1, OF THE
CONSTITUTION OF THE UNITED STATES, WHICH PROVIDES THAT "FULL FAITH AND
CREDIT SHALL BE GIVEN IN EACH STATE TO THE PUBLIC ACTS, RECORDS, AND
JUDICIAL PROCEEDINGS OF EVERY OTHER STATE."  THE CASE WAS HEARD ON
OCTOBER 24, 1963, AND ON NOVEMBER 12, 1963, THE COURT ISSUED A PER
CURIAM OPINION, 375 U.S. 75, PURSUANT TO WHICH THE FOLLOWING QUESTIONS
ARE CERTIFIED TO THE SUPREME COURT OF FLORIDA: 

1.  IS A DECREE OF ALIMONY THAT PURPORTS TO BIND THE ESTATE OF A
DECEASED HUSBAND PERMISSIBLE, IN THE ABSENCE OF AN EXPRESS PRIOR
AGREEMENT BETWEEN THE TWO SPOUSES AUTHORIZING OR CONTEMPLATING SUCH A
DECREE? 

2.  IF SUCH A DECREE IS NOT PERMISSIBLE, DOES THE ERROR OF THE COURT
ENTERING IT RENDER THAT COURT WITHOUT SUBJECT MATTER JURISDICTION WITH
REGARD TO THAT ASPECT OF THE CAUSE? 

3.  IF SUBJECT MATTER JURISDICTION IS THUS LACKING, MAY THAT DEFECT
BE CHALLENGED IN FLORIDA, AFTER THE TIME FOR APPELLATE REVIEW HAS
EXPIRED, (I) BY THE REPRESENTATIVES OF THE ESTATE OF THE DECEASED
HUSBAND OR (II) BY PERSONS TO WHOM THE DECEASED HUSBAND HAS ALLEGEDLY
TRANSFERRED PART OF HIS PROPERTY WITHOUT CONSIDERATION? 

4.  IF THE DECREE IS IMPERMISSIBLE BUT NOT SUBJECT TO SUCH ATTACK IN
FLORIDA FOR LACK OF SUBJECT MATTER JURISDICTION BY THOSE MENTIONED IN
SUBPARAGRAPH 3, MAY AN ATTACK BE SUCCESSFULLY BASED ON THIS ERROR OF
LAW IN THE RENDITION OF THE DECREE? 
..END :

















ALDRICH V. ALDRICH 378 U.S. 540 


NO. 55.  ARGUED OCTOBER 24, 1963.  - DECIDED NOVEMBER 12, 1963, THAT
QUESTIONS BE CERTIFIED TO SUPREME COURT OF FLORIDA.  - QUESTIONS
CERTIFIED TO SUPREME COURT OF FLORIDA DECEMBER 16, 1963.  - DECIDED
JUNE 22, 1964.  - 147 W.VA. 269, 127 S.E.2D 385, REVERSED AND
REMANDED. 


IN RESPONSE TO QUESTIONS CERTIFIED BY THIS COURT, THE FLORIDA SUPREME
COURT ADVISED THAT, ALTHOUGH AN AWARD OF ALIMONY PURPORTING TO BIND THE
HUSBAND'S ESTATE WAS NOT PROPER UNDER FLORIDA LAW, IN THE ABSENCE OF AN
EXPRESS PRIOR AGREEMENT BETWEEN THE SPOUSES, THE FAILURE OF THE
HUSBAND, NOW DECEASED, TO APPEAL PERMITTED THE DECREE TO BECOME FINAL
AND IT IS NOT SUBJECT TO COLLATERAL ATTACK.  ACCORDINGLY, THE WEST
VIRGINIA COURTS, IN PROBATING THE HUSBAND'S ESTATE, MUST, UNDER THE
FULL FAITH AND CREDIT CLAUSE, GIVE THE DECREE AS BROAD A SCOPE AS
FLORIDA DOES. 

ALDRICH V. ALDRICH ET AL. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

PER CURIAM. 

PETITIONER, MARGUERITE LORETTA ALDRICH, WAS GRANTED A DIVORCE FROM
M.S. ALDRICH BY THE CIRCUIT COURT OF DADE COUNTY, FLORIDA, IN 1945. 
THE JURSIDCITION OF THAT COURT TO AWARD THE DIVORCE WAS NOT CONTESTED
THEN, NOR IS IT CONTESTED IN THIS ACTION.  M.S.  ALDRICH WAS ORDERED BY
THE COURT TO PAY PETITIONER $250 A MONTH AS PERMANENT ALIMONY, AND THE
DECREE PROVIDED THAT "SAID MONTHLY SUM OF $250.00 SHALL, UPON THE DEATH
OF SAID DEFENDANT (HUSBAND), BECOME A CHARGE UPON HIS ESTATE DURING HER
(PETITIONER'S) LIFETIME  ...  ."  THERE WAS NO PRIOR EXPRESS AGREEMENT
BETWEEN THE PARTIES THAT THE ESTATE WOULD BE BOUND.  SUBSEQUENTLY, THE
HUSBAND PETITIONED THE FLORIDA COURT FOR A REHEARING, WHICH WAS DENIED,
BUT THE COURT REDUCED ALIMONY FROM $250 TO $215 PER MONTH.  NO APPEAL
WAS TAKEN BY EITHER PARTY. 

M.S. ALDRICH DIED TESTATE, A RESIDENT OF PUTNAM COUNTY, WEST
VIRGINIA, ON MAY 29, 1958.  HIS WILL WAS DULY PROBATED IN PUTNAM COUNTY
AND PETITIONER FILED A CLAIM AGAINST THE ESTATE FOR ALIMONY WHICH HAD
ACCRUED AFTER THE DEATH OF HER FORMER HUSBAND.  THE APPRAISAL OF THE
ESTATE SHOWED ASSETS OF $7,283.50.  PETITIONER COMMENCED THIS ACTION IN
THE CIRCUIT COURT OF PUTNAM COUNTY, WEST VIRGINIA, IN ORDER TO HAVE HER
RIGHTS IN THE ESTATE DETERMINED.  SHE ALSO DEMANDED THAT CERTAIN
ALLEGEDLY FRAUDULENT TRANSFERS OF REAL AND PERSONAL PROPERTY MADE BY
M.S. ALDRICH BE SET ASIDE AND THE PROPERTIES WHICH WERE THE SUBJECT OF
SUCH TRANSFERS ADMINISTERED AS A PART OF THE ESTATE, SO AS TO BE
SUBJECT TO HER CLAIM FOR ALIMONY UNDER THE FLORIDA DIVORCE DECREE. 

ON MOTION FOR SUMMARY JUDGMENT BY THE DEFENDANTS, THE CIRCUIT COURT
OF PUTNAM COUNTY HELD THAT THE DECREE OF THE FLORIDA DIVORCE COURT WAS
INVALID AND UNENFORCEABLE INSOFAR AS IT PURPORTED TO IMPOSE UPON THE
ESTATE OF M.S. ALDRICH AN OBLIGATION TO PAY ALIMONY ACCURING AFTER HIS
DEATH.  THE SUPREME COURT OF APPEALS OF WEST VIRGINIA AFFIRMED THE
JUDGMENT, 147 W.VA. 269, 127 S.E.2D 385.  IT CHARACTERIZED THE
CONTROLLING QUESTION IN THE CASE AS: 

"WHETHER THE JUDGMENT  ...  TO THE EXTENT THAT IT AWARDS ALIMONY TO
ACCRUE AFTER THE DEATH OF M.S. ALDRICH AND MAKES THE ALIMONY SO
ACCRUING A CHARGE UPON HIS ESTATE, IS A VALID JUDGMENT WHICH IS
ENTITLED TO FULL FAITH AND CREDIT IN THE COURTS OF THIS STATE; FOR IF
SUCH JUDGMENT IS NOT ENTITLED TO SUCH FULL FAITH AND CREDIT THE
QUESTION OF ITS ENFORCIBILITY AGAINST THE PROPERTY AND ASSETS FORMERLY
OWNED BY M.S. ALDRICH BECOMES UNIMPORTANT AND NEED NOT BE CONSIDERED OR
DISCUSSED."  147 W. VA., AT 274, 127 S.E.2D, AT 388. 

RECOGNIZING THAT, AS REQUIRED BY THE FULL FAITH AND CREDIT CLAUSE,
ART. IV, SEC. 1, OF THE FEDERAL CONSTITUTION, "A JUDGMENT OF A COURT OF
ANOTHER STATE HAS THE SAME FORCE AND EFFECT IN THIS STATE AS IT HAS IN
THE STATE IN WHICH IT WAS PRONOUNCED," 147 W.VA., AT 275, 127 S.E.2D,
AT 388, THE COURT ALSO NOTED THAT "'NO GREATER EFFECT IS TO BE GIVEN TO
IT THAN IT WOULD HAVE IN THE STATE WHERE IT WAS RENDERED.'"  IBID., 127
S.E.2D, AT 389.  ALTHOUGH APPARENTLY NOT QUESTIONING THE POWER OF
FLORIDA TO IMPOSE A CHARGE UPON THE ESTATE, THE COURT CONCLUDED THAT
SUCH A CHARGE WAS, ABSENT EXPRESS AGREEMENT BY THE PARTIES TO THE
DIVORCE, IMPROPER UNDER FLORIDA LAW AND THAT "THE JUDGMENT AWARDING
SUCH ALIMONY WAS VOID AND OF NO FORCE AND EFFECT UNDER THE LAW OF THE
STATE OF FLORIDA IN WHICH SUCH JUDGMENT WAS RENDERED AND WILL NOT BE
GIVEN FULL FAITH AND CREDIT IN THE COURTS OF THIS STATE."  147 W.VA.,
AT 283, 127 S.E.2D, AT 393.  WE GRANTED CERTIORARI, 372 U.S. 963, TO
DECIDE WHETHER WEST VIRGINIA HAD COMPLIED WITH THE MANDATE OF THE FULL
FAITH AND CREDIT CLAUSE. 

BEING UNCERTAIN REGARDING THE RELEVANT LAW OF FLORIDA AND BELIEVING
THAT LAW TO BE DETERMINATIVE OF THE EFFECT TO BE GIVEN THE FLORIDA
JUDGMENT, WE CERTIFIED (375 U.S. 75, 375 U.S. 249, 251-252) THE
FOLLOWING QUESTIONS OF STATE LAW TO THE FLORIDA SUPREME COURT, PURSUANT
TO RULE 4.61 OF THE FLORIDA APPELLATE RULES: 

1.  IS A DECREE OF ALIMONY THAT PURPORTS TO BIND THE ESTATE OF A
DECEASED HUSBAND PERMISSIBLE, IN THE ABSENCE OF AN EXPRESS PRIOR
AGREEMENT BETWEEN THE TWO SPOUSES AUTHORIZING OR CONTEMPLATING SUCH A
DECREE? 

2.  IF SUCH A DECREE IS NOT PERMISSIBLE, DOES THE ERROR OF THE COURT
ENTERING IT RENDER THAT COURT WITHOUT SUBJECT MATTER JURISDICTION WITH
REGARD TO THAT ASPECT OF THE CAUSE? 

3.  IF SUBJECT MATTER JURISDICTION IS THUS LACKING, MAY THAT DEFECT
BE CHALLENGED IN FLORIDA, AFTER THE TIME FOR APPELLATE REVIEW HAS
EXPIRED, (I) BY THE REPRESENTATIVES OF THE ESTATE OF THE DECEASED
HUSBAND OR (II) BY PERSONS TO WHOM THE DECEASED HUSBAND HAS ALLEGEDLY
TRANSFERRED PART OF HIS PROPERTY WITHOUT CONSIDERATION? 

4.  IF THE DECREE IS IMPERMISSIBLE BUT NOT SUBJECT TO SUCH ATTACK IN
FLORIDA FOR LACK OF SUBJECT MATTER JURISDICTION BY THOSE MENTIONED IN
SUBPARAGRAPH 3, MAY AN ATTACK BE SUCCESSFULLY BASED ON THIS ERROR OF
LAW IN THE RENDITION OF THE DECREE? 

THE FLORIDA COURT, IN ANSWER TO OUR CERTIFICATION, HAS DETERMINED
THAT ALTHOUGH THE AWARD OF THE ALIMONY PURPORTING TO BIND THE ESTATE
WAS NOT PROPER UNDER FLORIDA LAW, THE COURT RENDERING THE DECREE DID
NOT THEREBY LOSE ITS JURISDICTION OVER THAT PART OF THE CASE.  IT
FURTHER DECIDED THAT "WHEN THE HUSBAND FAILED TO TAKE AN APPEAL AND
GIVE A REVIEWING COURT THE OPPORTUNITY TO CORRECT THE ERROR, THE DECREE
OF THE CIRCUIT COURT ON SUCH QUESTION PASSED INTO VERITY, BECAME FINAL,
AND IS NOT NOW SUBJECT TO COLLATERAL ATTACK."  163 SO. 2D 276, 284. 
HAVING GIVEN A NEGATIVE ANSWER TO BOTH THE FIRST TWO QUESTIONS, THE
COURT BELIEVED IT UNNECESSARY TO CONSIDER THE LATTER TWO QUESTIONS.  WE
ACCORDINGLY TAKE THE PASSAGE QUOTED ABOVE AS MEANING THAT COLLATERAL
ATTACK ON ANY GROUND WOULD NOT HAVE BEEN SUSTAINED. 

GIVEN THE ANSWERS OF THE FLORIDA COURT, IT BECOMES PLAIN THAT THE
JUDGMENT OF THE SUPREME COURT OF APPEALS OF WEST VIRGINIA, BASED AS IT
WAS ON A MISAPPREHENSION REGARDING THE LAW OF A SISTER STATE, CANNOT
STAND.  THE FLORIDA ALIMONY DECREE MUST BE TREATED AS IF IT WERE
PERFECTLY CORRECT UNDER SUBSTANTIVE PRINCPLES OF FLORIDA LAW.  IT
CANNOT BE ARGUED THAT A RULE OF LAW IMPOSING A BURDEN ON THE ESTATE OF
A DIVORCED MAN WHO HAS HAD HIS DAY IN COURT VIOLATES DUE PROCESS, AND
IF THE JUDGMENT IS BINDING UPON HIM, IT IS ALSO BINDING ON THOSE WHOM
FLORIDA LAW CONSIDERS TO BE IN PRIVITY WITH HIM, SO LONG AS FLORIDA
DOES NOT SEEK TO BIND THOSE WHO CANNOT BE BOUND CONSISTENT WITH DUE
PROCESS.   THAT WEST VIRGINIA MUST GIVE THE DECREE OF ALIMONY AS BROAD
A SCOPE AS THAT IT HAS IN FLORIDA IS CLEAR, SEE JOHNSON V. MUELBERGER,
340 U.S. 581, AND IS QUESTIONED NEITHER BY THE SUPREME COURT OF APPEALS
OF WEST VIRGINIA NOR BY RESPONDENTS. 

THE JUDGMENT BELOW IS REVERSED, AND THE CASE REMANDED FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 
..END :






















BARTONE V. UNITED STATES 375 U.S. 52 


NO. 337.  DECIDED OCTOBER 28, 1963.  - 317 F.2D 608, CERTIORARI GRANTED;
REVERSED. 


AFTER A HEARING IN OPEN COURT AND IN THE PRESENCE OF PETITIONER AND
HIS COUNSEL, A FEDERAL DISTRICT JUDGE ORALLY REVOKED PETITIONER'S
PROBATION AND SENTENCED HIM TO IMPRISONMENT FOR ONE YEAR.   LATER ON
THE SAME DAY, IN PETITIONER'S ABSENCE, A WRITTEN JUDGMENT WAS ENTERED
COMMITTING PETITIONER TO IMPRISONMENT FOR ONE YEAR AND ONE DAY. 
ALTHOUGH THE PROPRIETY OF THIS ENLARGEMENT OF THE SENTENCE WAS
PRESENTED ON APPEAL, ALONG WITH OTHER QUESTIONS, THE COURT OF APPEALS
AFFIRMED WITHOUT MENTIONING THIS POINT.  HELD:  CERTIORARI IS GRANTED
AND THE JUDGMENT DENYING CORRECTION OF THE SENTENCE IS REVERSED, SINCE
THE ERROR IN ENLARGING THE SENTENCE IN THE ABSENCE OF PETITIONER WAS
PLAIN IN LIGHT OF THE REQUIREMENTS OF FEDERAL RULE OF CRIMINAL
PROCEDURE 43.  PP. 52-54. 

BARTONE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

ALTHOUGH THERE WERE OTHER QUESTIONS BEFORE THE COURT OF APPEALS, THE
SOLE QUESTION PRESENTED BY THIS PETITION IS STATED AS FOLLOWS: 

"MAY A UNITED STATES DISTRICT JUDGE ORALLY REVOKE THE PROBATION OF A
DEFENDANT IN OPEN COURT AND IN THE PRESENCE OF THE DEFENDANT AND HIS
COUNSEL AND IMPOSE A SENTENCE OF CONFINEMENT FOR A SPECIFIC PERIOD OF
TIME AND THEREAFTER ENTER A FORMAL WRITTEN JUDGMENT AND COMMITMENT IN
WHICH A LARGER AND LONGER SENTENCE OF CONFINEMENT IS IMPOSED AND SET
FORTH?" 

IT APPEARS THAT ON SEPTEMBER 14, 1962, PETITIONER AND HIS COUNSEL
APPEARED IN THE DISTRICT COURT, AT WHICH TIME A SENTENCE OF CONFINEMENT
OF ONE YEAR WAS IMPOSED.  SUBSEQUENTLY, AND IN PETITIONER'S ABSENCE,
THE COURT ENLARGED THE PENALTY BY ONE DAY. 

THE PROPRIETY OF THIS ENLARGEMENT OF THE SENTENCE, ALONG WITH OTHER
QUESTIONS, WAS PRESENTED ON THE APPEAL TO THE COURT OF APPEALS, WHICH
MADE NO MENTION OF IT IN ITS OPINION.  317 F.2D 608.  THE COURT OF
APPEALS DID, HOWEVER, DENY A MOTION OF THE UNITED STATES TO REMAND THE
CAUSE FOR THE PURPOSE OF CORRECTING THE SENTENCE - RELIEF TO WHICH THE
UNITED STATES CONCEDES PETITIONER IS ENTITLED.  (FN1)  SEE RAKES V.
UNITED STATES, 309 F.2D 686.  THE ONLY QUESTION IS WHETHER THE ERROR
WILL BE CORRECTED HERE AND NOW OR WHETHER PETITIONER WILL BE REMITTED
TO HIS REMEDY UNDER RULE 35 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE;
AND WHETHER PETITIONER WILL BE ADVANTAGED BY ONE PROCEDURE OR ANOTHER
IS NOT OUR CONCERN. 

THIS ERROR, IN ENLARGING THE SENTENCE IN THE ABSENCE OF PETITIONER,
WAS SO PLAIN IN LIGHT OF THE REQUIREMENTS OF RULE 43 (FN2) THAT IT
SHOULD HAVE BEEN DEALT WITH BY THE COURT OF APPEALS, EVEN THOUGH IT HAD
NOT BEEN ALLEGED AS ERROR. 

AS SEEN FROM OUR MISCELLANEOUS DOCKET FOR 1962, THE USE OF COLLATERAL
PROCEEDINGS FOR RELIEF FROM FEDERAL JUDGMENTS OF CONVICTION IS
CONSIDERABLE: 

OCTOBER TERM, 1962.  - MISCELLANEOUS DOCKET. 

TOTALS. 

FEDERAL PRISONERS: 

DIRECT ATTACK                     109 

28 U.S.C. SEC. 2255              93 

HABEAS CORPUS THROUGH FEDERAL COURTS      38 

ORIGINAL HABEAS CORPUS (IN THIS COURT)          40 

RULE 35, FED. RULES CRIM. PROC.                 4

                                      284 

WHERE STATE PROCEDURAL SNARLS OR OBSTACLES PRECLUDE AN EFFECTIVE
STATE REMEDY AGAINST UNCONSTITUTIONAL CONVICTIONS, FEDERAL COURTS HAVE
NO OTHER CHOICE BUT TO GRANT RELIEF IN THE COLLATERAL PROCEEDING.  SEE
FAY V. NOIA, 372 U.S. 391.  BUT THE SITUATION IS DIFFERENT IN FEDERAL
PROCEEDINGS, OVER WHICH BOTH THE COURTS OF APPEALS AND THIS COURT
(MCNABB V. UNITED STATES, 318 U.S. 332) HAVE BROAD POWERS OF
SUPERVISION.  IT IS MORE APPROPRIATE, WHENEVER POSSIBLE, TO CORRECT
ERRORS REACHABLE BY THE APPEAL RATHER THAN REMIT THE PARTIES TO A NEW
COLLATERAL PROCEEDING. 

WE GRANT CERTIORARI AND REVERSE THE JUDGMENT DENYING CORRECTION OF
THE SENTENCE. 

FN1  RULE 43 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES: 

"THE DEFENDANT SHALL BE PRESENT AT THE ARRAIGNMENT, AT EVERY STAGE OF
THE TRIAL INCLUDING THE IMPANELING OF THE JURY AND THE RETURN OF THE
VERDICT, AND AT THE IMPOSITION OF SENTENCE, EXCEPT AS OTHERWISE
PROVIDED BY THESE RULES.  IN PROSECUTIONS FOR OFFENSES NOT PUNISHABLE
BY DEATH, THE DEFENDANT'S VOLUNTARY ABSENCE AFTER THE TRIAL HAS BEEN
COMMENCED IN HIS PRESENCE SHALL NOT PREVENT CONTINUING THE TRIAL TO AND
INCLUDING THE RETURN OF THE VERDICT.  A CORPORATION MAY APPEAR BY
COUNSEL FOR ALL PURPOSES.  IN PROSECUTIONS FOR OFFENSES PUNISHABLE BY
FINE OR BY IMPRISONMENT FOR NOT MORE THAN ONE YEAR OR BOTH, THE COURT,
WITH THE WRITTEN CONSENT OF THE DEFENDANT, MAY PERMIT ARRAIGNMENT,
PLEA, TRIAL AND IMPOSITION OF SENTENCE IN THE DEFENDANT'S ABSENCE.  THE
DEFENDANT'S PRESENCE IS NOT REQUIRED AT A REDUCTION OF SENTENCE UNDER
RULE 35." 

FN2  SUPRA, NOTE 1. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

PETITIONER WAS CONVICTED OF ATTEMPTING TO EXPORT MUNITIONS OF WAR
FROM THE UNITED STATES TO A FOREIGN STATE WITHOUT A LICENSE IN
VIOLATION OF SEC. 414 OF THE MUTUAL SECURITY ACT OF 1954, 68 STAT. 848,
AS AMENDED, 22 U.S.C. SEC. 1934.  THIS STATUTE PROVIDES A MAXIMUM
PENALTY OF TWO YEARS' IMPRISONMENT AND $25,000 FINE.  IMPOSITION OF
SENTENCE OF CONFINEMENT WAS WITHHELD AND PETITIONER WAS PLACED ON
PROBATION FOR THREE YEARS AND FINED $10,000 (LATER REDUCED TO $7,500). 
THEREAFTER, THE PROBATION OFFICER PETITIONED THE DISTRICT COURT TO
ISSUE A WARRANT AND REVOKE PETITIONER'S PROBATION, ALLEGING THAT
PETITIONER HAD VIOLATED PROBATION BY PARTICIPATING IN A CONTRACT TO
SELL ARMS TO THE REPUBLIC OF HONDURAS.  AFTER HEARING, THE COURT
REVOKED THE PROBATION AND ORALLY SENTENCED PETITIONER TO ONE YEAR
IMPRISONMENT.  BAIL WAS DENIED BY THE DISTRICT COURT BUT GRANTED BY THE
COURT OF APPEALS PENDING PETITIONER'S APPEAL.  BEFORE SUBMISSION ON THE
MERITS, THE GOVERNMENT CALLED THE COURT OF APPEALS' ATTENTION TO THE
FACT THAT THE SENTENCE WAS RECORDED AS ONE YEAR AND ONE DAY RATHER THAN
ONE YEAR ONLY AND MOVED THAT THE CASE BE REMANDED TO CORRECT THE
SENTENCE.  THE COURT DENIED THE MOTION AND THEREAFTER AFFIRMED THE CASE
ON THE MERITS.  PETITIONER SOUGHT REHEARING, SUGGESTING THAT THE COURT
OF APPEALS "FAILED TO CONSIDER" THE SENTENCING ERROR, WHICH PETITIONER
HAD NOT ARGUED "FULLY."  THE PETITION WAS DENIED AND THE CASE CAME HERE
ON THIS ISSUE ALONE. 

THE COURT SUMMARILY REVERSES AND DIRECTS THAT THE SENTENCE BE
CORRECTED.  I BELIEVE THAT THIS IS ERROR.  THE PETITIONER NEVER
PRESENTED THIS QUESTION TO THE DISTRICT COURT AND THAT COURT HAS NOT
PASSED UPON IT.  UNDER RULE 35 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, AN APPLICATION TO CORRECT AN ILLEGAL SENTENCE MAY BE MADE TO
THE DISTRICT COURT AT ANY TIME.  IN ADDITION, RULE 36, AS TO CLERICAL
ERRORS (WHICH APPARENTLY THIS IS), LIKEWISE PLACES POWER IN THE
DISTRICT COURT TO MAKE CORRECTION.  THIS COURT, HOWEVER, BY ITS ACTION
TODAY MAKES THIS AN APPEALABLE ERROR EVEN THOUGH IT HAS NEVER BEEN
CALLED TO THE ATTENTION OF THE TRIAL COURT.  THE COURT HAS THEREBY
CREATED AN ADDITIONAL REMEDY FOR OBTAINING RELIEF FROM A SENTENCING
ERROR, DESPITE THE EXISTENCE OF THE ADEQUATE RELIEF ALREADY PROVIDED IN
RULE 35 OR RULE 36 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 
HERETOFORE, CLAIMS OF THIS NATURE HAVE BEEN PROSECUTED IN THE DISTRICT
COURT BY MOTION UNDER RULE 35.  THE COURT'S NEW METHOD OF RELIEF NOT
ONLY PREVENTS THE DISTRICT COURT FROM CORRECTING ITS OWN ERROR BUT ALSO
DELAYS THE FINAL DISPOSITION OF THE CASE AND CREATES CONFUSION IN THE
ADMINISTRATION OF JUSTICE.  I WOULD REQUIRE PETITIONER, AS THE RULES
PROVIDE, TO APPLY TO THE DISTRICT COURT. 

MOREOVER, PETITIONER MAY NOT UNDERSTAND THE PRACTICAL EFFECT OF THE
ERROR ON HIS TERM OF PRISON SENTENCE.  UNDER 18 U.S.C. SEC. 4161,
PETITIONER IS ALLOWED SIX DAYS PER MONTH DEDUCTION FOR GOOD BEHAVIOR IF
HIS SENTENCE IS A YEAR AND A DAY.  SENTENCE OF A YEAR OR LESS PERMITS
ONLY FIVE DAYS PER MONTH DEDUCTION FROM THE TERM OF SENTENCE.  IN
PRACTICAL EFFECT, UNDER THIS COURT'S ORDER, PETITIONER MAY HAVE TO
SERVE 11 DAYS' ADDITIONAL TIME.  THE COURT SHOULD REQUIRE PETITIONER TO
PROCEED IN THE REGULAR WAY BY RULE 35 RATHER THAN FORCE HIM TO SERVE A
LONGER SENTENCE, ESPECIALLY SINCE HIS PETITION MAY RESULT FROM LACK OF
FAMILIARITY WITH "GOOD BEHAVIOR" REGULATIONS.  FOR THESE REASONS I
DISSENT. 
..END :
















SOUTH COAST FISHERIES, INC. V. DEPARTMENT OF FISH & GAME 375 U.S. 57 


NO. 372.  DECIDED OCTOBER 28, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  REPORTED BELOW:  213 CAL. APP. 2D 325,
28 CAL. RPTR.  537. 


SOUTH COAST FISHERIES, INC., ET AL. V. DEPARTMENT OF FISH AND GAME. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















ORKIN EXTERMINATING CO. V. GULF COAST RICE MILLS 375 U.S. 57 


NO. 424.  DECIDED OCTOBER 28, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  REPORTED BELOW:  362 S.W.2D 159. 


ORKIN EXTERMINATING CO., INC., V. GULF COAST RICE MILLS. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, FIRST SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CANTON CO. OF BALTIMORE V. COMPTROLLER OF THE TREASURY, RETAIL SALES TAX
DIVISION, MARYLAND 375 U.S. 58 


NO. 365.  DECIDED OCTOBER 28, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  REPORTED BELOW:  231 MD. 294, 190 A.2D
92. 


CANTON CO. OF BALTIMORE V. COMPTROLLER OF THE TREASURY, RETAIL SALES TAX
DIVISION, MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














PANICO V. UNITED STATES 375 U.S. 29 


NO. 45.  DECIDED OCTOBER 21, 1963.  - 308 F.2D 125, CERTIORARI GRANTED;
JUDGMENT VACATED; AND CASE REMANDED. 


IN THE CIRCUMSTANCES OF THIS CASE, IN WHICH PETITIONER WAS CONVICTED
IN A SUMMARY PROCEEDING OF CRIMINAL CONTEMPT AND SHORTLY THEREAFTER WAS
COMMITTED TO A STATE MENTAL HOSPITAL, THE FAIR ADMINISTRATION OF
CRIMINAL JUSTICE REQUIRES A PLENARY HEARING UNDER FEDERAL RULE OF
CRIMINAL PROCEDURE 42(B) TO DETERMINE THE QUESTION OF HIS CRIMINAL
RESPONSIBILITY FOR HIS CONDUCT.  PP. 29-31. 

PANICO V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED. 

THE PETITIONER WAS ONE OF NUMEROUS DEFENDANTS IN A LENGTHY CRIMINAL
TRIAL IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK.  HE WAS FOUND GUILTY, BUT HIS CONVICTION WAS REVERSED ON
APPEAL.  319 F.2D 916.  FOR HIS CONDUCT DURING THE TRIAL THE PETITIONER
WAS FOUND GUILTY OF CRIMINAL CONTEMPT IN A SUMMARY PROCEEDING CONDUCTED
BY THE TRIAL JUDGE UNDER RULE 42(A) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE AFTER THE TRIAL HAD ENDED.  (FN1)  THIS CONTEMPT CONVICTION
WAS AFFIRMED ON APPEAL, ONE JUDGE DISSENTING.  308 F.2D 125. 

IF THE PETITIONER WAS LEGALLY RESPONSIBLE FOR HIS CONDUCT DURING THE
TRIAL, THERE CAN BE NO DOUBT THAT HIS CONDUCT WAS CONTUMACIOUS.  IT IS
CONTENDED, HOWEVER, THAT AT THE TIME OF THE CONDUCT IN QUESTION THE
PETITIONER WAS SUFFERING FROM A MENTAL ILLNESS WHICH MADE HIM INCAPABLE
OF FORMING THE CRIMINAL INTENT REQUISITE FOR A FINDING OF GUILT.  NO
SEPARATE HEARING WAS HAD UPON THIS ISSUE IN THE CONTEMPT PROCEEDING,
ALTHOUGH DURING THE COURSE OF THE PREVIOUS CRIMINAL TRIAL, THE JUDGE
HAD HEARD CONFLICTING EXPERT TESTIMONY UPON THE DIFFERENT QUESTION OF
THE PETITIONER'S MENTAL CAPACITY TO STAND TRIAL.  SHORTLY AFTER THE
CONTEMPT CONVICTION, THE PETITIONER WAS FOUND BY STATE-APPOINTED
PSYCHIATRISTS TO BE SUFFERING FROM SCHIZOPHRENIA AND COMMITTED TO A
STATE MENTAL HOSPITAL.  CF. BUSH V. TEXAS, 372 U.S. 586. 

IN THE LIGHT OF THESE CIRCUMSTANCES, WE HOLD THAT THE FAIR
ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE REQUIRES A PLENARY HEARING
UNDER RULE 42(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE TO
DETERMINE THE QUESTION OF THE PETITIONER'S CRIMINAL RESPONSIBILITY FOR
HIS CONDUCT.  (FN2) ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS
IS VACATED, AND THE CASE IS REMANDED TO THE DISTRICT COURT.  IT IS SO
ORDERED. 

FN1  "RULE 42.  CRIMINAL CONTEMPT. 

"(A) SUMMARY DISPOSITION.  A CRIMINAL CONTEMPT MAY BE PUNISHED
SUMMARILY IF THE JUDGE CERTIFIES THAT HE SAW OR HEARD THE CONDUCT
CONSTITUTING THE CONTEMPT AND THAT IT WAS COMMITTED IN THE ACTUAL
PRESENCE OF THE COURT.  THE ORDER OF CONTEMPT SHALL RECITE THE FACTS
AND SHALL BE SIGNED BY THE JUDGE AND ENTERED OF RECORD." 

FN2  "RULE 42.  CRIMINAL CONTEMPT. 

  *         *         *         *         * 

"(B) DISPOSITION UPON NOTICE AND HEARING.  A CRIMINAL CONTEMPT EXCEPT
AS PROVIDED IN SUBDIVISION (A) OF THIS RULE SHALL BE PROSECUTED ON
NOTICE.  THE NOTICE SHALL STATE THE TIME AND PLACE OF HEARING, ALLOWING
A REASONABLE TIME FOR THE PREPARATION OF THE DEFENSE, AND SHALL STATE
THE ESSENTIAL FACTS CONSTITUTING THE CRIMINAL CONTEMPT CHARGED AND
DESCRIBE IT AS SUCH.  THE NOTICE SHALL BE GIVEN ORALLY BY THE JUDGE IN
OPEN COURT IN THE PRESENCE OF THE DEFENDANT OR, ON APPLICATION OF THE
UNITED STATES ATTORNEY OR OF AN ATTORNEY APPOINTED BY THE COURT FOR
THAT PURPOSE, BY AN ORDER TO SHOW CAUSE OR AN ORDER OF ARREST.  THE
DEFENDANT IS ENTITLED TO A TRIAL BY JURY IN ANY CASE IN WHICH AN ACT OF
CONGRESS SO PROVIDES.  HE IS ENTITLED TO ADMISSION TO BAIL AS PROVIDED
IN THESE RULES.  IF THE CONTEMPT CHARGED INVOLVES DISRESPECT TO OR
CRITICISM OF A JUDGE, THAT JUDGE IS DISQUALIFIED FROM PRESIDING AT THE
TRIAL OR HEARING EXCEPT WITH THE DEFENDANT'S CONSENT.  UPON A VERDICT
OR FINDING OF GUILT THE COURT SHALL ENTER AN ORDER FIXING THE
PUNISHMENT." 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN WOULD AFFIRM THE JUDGMENT
BELOW SUBSTANTIALLY FOR THE REASONS GIVEN BY JUDGE SMITH IN HIS OPINION
FOR THE COURT OF APPEALS.  UNITED STATES V. PANICO, 308 F.2D 125. 
..END :












EVOLA V. UNITED STATES 375 U.S. 32 


NO. 194.  DECIDED OCTOBER 21, 1963.* - CERTIORARI GRANTED; JUDGMENTS
VACATED; AND CASES REMANDED.  - REPORTED BELOW:  315 F.2D 186. 

*TOGETHER WITH NO. 195, SANTORA V. UNITED STATES; NO. 196, GENOVESE
V. UNITED STATES; NO. 197, GIGANTE V. UNITED STATES; NO. 79, MISC.,
DIPALERMO V. UNITED STATES; NO. 80, MISC., DIPALERMO V. UNITED STATES;
NO. 115, MISC., MAZZIE V. UNITED STATES; NO. 149, MISC., POLIZZANO ET
AL. V. UNITED STATES, AND NO. 224, MISC., BARCELLONA V. UNITED STATES,
ALSO ON PETITIONS FOR WRITS OF CERTIORARI TO THE SAME COURT. 


EVOLA V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI IN NOS. 194, 195, 196 AND 197,
AND THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS, AS WELL AS THE
PETITIONS FOR CERTIORARI IN NO. 79, MISC., NO. 80, MISC., NO. 115,
MISC., NO. 149, MISC., AND NO. 224, MISC., ARE GRANTED. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IS
VACATED AND THE CASES ARE REMANDED TO THAT COURT FOR RECONSIDERATION IN
LIGHT OF CAMPBELL V. UNITED STATES, 373 U.S. 487, AND FOR SUCH FURTHER
CONSIDERATION AS MAY BE APPROPRIATE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE WHITE
JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I REALIZE, OF COURSE, THAT IN REMANDING THESE CASES THE COURT NEITHER
DECIDES THAT CAMPBELL GOVERNS NOR IMPLIES HOW THE COURT OF APPEALS
SHOULD DECIDE THEM.  NEVERTHELESS, I WOULD GRANT THE PETITIONS FOR
CERTIORARI AND SET THESE CASES FOR ARGUMENT, SINCE IT IS MY FEELING
THAT IT IS FUTILE TO REMAND "FOR RECONSIDERATION IN LIGHT OF CAMPBELL
V. UNITED STATES, 373 U.S. 487." 

ALTHOUGH THESE CASES WERE DECIDED PRIOR TO CAMPBELL, THE COURT OF
APPEALS' DISPOSITION HAS SUPPORT IN THE RECORD AND IS WORTHY OF
ARGUMENT.*  ALL THE EVIDENCE BEFORE THE DISTRICT COURT WAS DOCUMENTARY
AND THE COURT OF APPEALS WAS THEREFORE CORRECT IN MAKING FACTUAL
DETERMINATIONS ON THE BASIS OF SUCH EVIDENCE. 

*I DEEM PLENARY CONSIDERATION HERE PREFERABLE TO THIS REMAND BECAUSE
THE DELINEATION OF THE LIMITS OF THE JENCKS ACT HAS BEEN PECULIARLY THE
PROVINCE OF THIS COURT.  THE REMAND WILL MERELY DELAY A FINAL DECISION
WHICH COULD BE MADE ON THE RECORD NOW BEFORE THE COURT AND THE
IDENTICAL RECORD WILL NO DOUBT RETURN HERE NO MATTER WHAT DETERMINATION
IS MADE BY THE COURT OF APPEALS. 

WHILE THE GOVERNMENT ACCEPTS THE DISTRICT COURT'S FINDING THAT THE
SHAW NOTES SHOULD HAVE BEEN PRODUCED UNDER 18 U.S.C. SEC 3500, THIS
DOES NOT RELIEVE THE COURTS OF THE OBLIGATION TO EXAMINE INDEPENDENTLY
THE ERROR CONFESSED.  GIBSON V. UNITED STATES, 329 U.S. 338, AND YOUNG
V. UNITED STATES, 315 U.S. 257. 
..END :

















TIPTON V. SOCONY MOBILE OIL CO. 375 U.S. 34 


NO. 200.  DECIDED OCTOBER 21, 1963.  - 315 F.2D 660, CERTIORARI GRANTED;
JUDGMENT VACATED; AND CASE REMANDED. 


IN THIS ACTION BY PETITIONER AGAINST RESPONDENT, HIS EMPLOYER, UNDER
THE JONES ACT TO RECOVER DAMAGES FOR PERSONAL INJURIES, THE PRINCIPAL
ISSUE WAS WHETHER, IN VIEW OF THE NATURE OF THE WORK PERFORMED AT THE
TIME OF INJURY, PETITIONER WAS A SEAMAN OR MEMBER OF THE CREW OF A
VESSEL, WITHIN THE COVERAGE OF THE JONES ACT, OR AN OFFSHORE DRILLING
EMPLOYEE.  AT THE TRIAL BEFORE A JURY, THE DISTRICT COURT, OVER
PETITIONER'S OBJECTION, ADMITTED EVIDENCE THAT PETITIONER HAD ACCEPTED
COMPENSATION BENEFITS UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, AS APPLIED THROUGH THE OUTER CONTINENTAL SHELF LANDS
ACT, WHICH IS EXPLICITLY INAPPLICABLE TO A "MEMBER OF A CREW OF ANY
VESSEL."  IN RESPONSE TO AN INTERROGATORY, THE JURY FOUND THAT
PETITIONER WAS NOT A SEAMAN OR A MEMBER OF A CREW OF A VESSEL, WITHIN
THE MEANING OF THE JONES ACT; AND JUDGMENT WAS ENTERED UPON THE VERDICT
FOR RESPONDENT.  HELD:  THE DISTRICT COURT'S ERROR IN ADMITTING
EVIDENCE OF OTHER COMPENSATION BENEFITS CANNOT, ON THE RECORD IN THIS
CASE, BE DEEMED HARMLESS.  PP. 34-37. 

TIPTON V. SOCONY MOBIL OIL CO., INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

PETITIONER BROUGHT THIS ACTION IN THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS AGAINST HIS EMPLOYER UNDER THE JONES ACT.  46 U.S.C.
SEC 688.  THE PRINCIPAL ISSUE WAS WHETHER, IN VIEW OF THE NATURE OF THE
WORK PERFORMED AT THE TIME OF INJURY, THE PETITIONER WAS A SEAMAN,
HENCE WITHIN THE COVERAGE OF THE JONES ACT, OR AN OFFSHORE DRILLING
EMPLOYEE.  AT THE TRIAL BEFORE A JURY, THE DISTRICT COURT ADMITTED
EVIDENCE, OVER THE OBJECTION OF PETITIONER'S COUNSEL, THAT PETITIONER
HAD ACCEPTED COMPENSATION BENEFITS UNDER THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT, 33 U.S.C. SEC 901 ET SEQ., AS APPLIED
THROUGH THE OUTER CONTINENTAL SHELF LANDS ACT, 43 U.S.C. SEC 1331 ET
SEQ.  THE LATTER ACT, ALTHOUGH EXTENDING LONGSHOREMEN'S COMPENSATION TO
A NEW GROUP, IS EXPLICITLY INAPPLICABLE TO A "MEMBER OF A CREW OF ANY
VESSEL."  43 U.S.C. SEC 1333(C)(1).  IN RESPONSE TO A SPECIAL
INTERROGATORY THE JURY FOUND THAT THE PETITIONER WAS NOT A SEAMAN OR
MEMBER OF A CREW OF A VESSEL WITHIN THE MEANING OF THE JONES ACT. 
JUDGMENT WAS THEN ENTERED UPON THE VERDICT FOR THE RESPONDENT.  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT UNANIMOUSLY HELD IT ERROR TO
HAVE ADMITTED THE EVIDENCE OF OTHER COMPENSATION BENEFITS BUT, WITH ONE
JUDGE DISSENTING, FOUND THE ERROR HARMLESS.  (FN1)  WE GRANT THE
PETITION FOR A WRIT OF CERTIORARI AND VACATE THE JUDGMENT. 

WE DO NOT AGREE THAT ON THE RECORD IN THIS CASE THE ERROR MAY BE
REGARDED AS HARMLESS.  (FN2) THERE CAN BE NO DOUBT THAT THE EVIDENCE OF
OTHER BENEFITS WAS PRESSED UPON THE JURY.  THROUGHOUT THE TRIAL
RESPONDENT'S COUNSEL EMPHASIZED THAT THE PETITIONER "HAS A REMEDY UNDER
A FEDERAL COMPENSATION ACT, AND IN FACT RECEIVED BENEFITS IN THE FORM
OF WEEKLY PAYMENTS UNDER THAT ACT  ...  ."  THE ONLY ARGUED RELEVANCE
OF THIS EVIDENCE WAS THAT IT INDICATED WHAT THE PETITIONER HAD THOUGHT
TO BE HIS LEGAL STATUS.  THE JUDGE DID NOT, HOWEVER, FRAME A CAUTIONARY
INSTRUCTION OR OTHERWISE CHARGE THE JURY THAT THE EVIDENCE OF OTHER
COMPENSATION MIGHT BE CONSIDERED ONLY INSOFAR AS IT REVEALED WHAT THE
PETITIONER AND OTHERS THOUGHT HIS STATUS TO BE - WHETHER SEAMAN OR
DRILLING EMPLOYEE - AND WAS NOT DISPOSITIVE OF THE ULTIMATE FACT OF
WHETHER HE WAS A SEAMAN.  TO THE CONTRARY, THE JUDGE'S CHARGE,
CONTAINING AN ELABORATE DISCUSSION OF THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT AND A RESTATEMENT OF THE DISPUTED EVIDENCE,
ONLY HEIGHTENED THE LIKELIHOOD OF PREJUDICE. 

A SUBSEQUENT EXCHANGE BETWEEN JUDGE AND JURY DID NOT, IN OUR OPINION,
NEGATE THE CUMULATIVE IMPACT OF THE EVIDENCE AND THE INSTRUCTIONS.  THE
JURY, WHILE DELIBERATING, SENT THE FOLLOWING NOTE TO THE JUDGE: 

"IF WE FIND MR. TIPTON IS NOT A SEAMAN OR A MEMBER OF THE CREW OF
DRILLING BARGE NO. 1, DOES HE HAVE RECOURSE FOR COMPENSATION UNDER THE
OUTER CONTINENTAL SHELF OR OTHER ACT?" 

THE JUDGE IMMEDIATELY REPLIED: 

"THIS IS NOT A MATTER FOR THE JURY'S CONSIDERATION.  YOU SHOULD
CONSIDER ONLY THE QUESTIONS SUBMITTED AND THE EVIDENCE THEREON." 

THE PETITIONER CONTENDS, CORRECTLY WE THINK, THAT THIS REPLY WAS
INSUFFICIENT TO OVERCOME THE IMPACT OF THE EVIDENCE OF OTHER
COMPENSATION AS SUBMITTED TO THE JURY.  (FN3)  ALTHOUGH THE JUDGE'S
REPLY EXCLUDED FROM THE JURY'S CONSIDERATION THE AVAILABILITY OF
ALTERNATIVE BENEFITS IN A FUTURE ACTION, IT DID NOT PRECLUDE OR
RESTRICT CONSIDERATION OF THE EVIDENCE PRESENTED CONCERNING PRIOR
RECEIPT OF COMPENSATION PAYMENTS.  THE DIRECTION TO CONSIDER "THE
QUESTIONS SUBMITTED" WAS NOT ILLUMINATING AND THE FURTHER REFERENCE TO
"THE EVIDENCE THEREON" NECESSARILY ENCOMPASSED THE ADMITTED EVIDENCE OF
PAYMENTS RECEIVED AND RETAINED BY PETITIONER. 

WE DISAGREE WITH THE SUGGESTION OF THE COURT OF APPEALS THAT THE
PREJUDICIAL EFFECT OF THE EVIDENCE OF OTHER COMPENSATION WOULD BE
RESTRICTED TO THE ISSUE OF DAMAGES AND WOULD NOT AFFECT THE
DETERMINATION OF LIABILITY.  (FN4)  THAT SUGGESTION IGNORES THAT THE
EVIDENCE WAS PRESUMABLY CONSIDERED WITHOUT QUALIFICATION AS BEARING ON
A BASIC FACT ESSENTIAL TO LIABILITY.  INDEED, THE JURY'S INQUIRY TO THE
JUDGE SEEMS TO INDICATE THAT, UNDER THE CASE AS SUBMITTED, THE JURY WAS
LED TO PLACE UNDUE EMPHASIS ON THE AVAILABILITY OF COMPENSATION
BENEFITS IN DETERMINING THE ULTIMATE QUESTION OF WHETHER THE PETITIONER
WAS A SEAMAN WITHIN THE JONES ACT.  ON SUCH A RECORD THE DISPUTED
EVIDENCE CANNOT PROPERLY BE DEEMED HARMLESS.  28 U.S.C. SEC 2111; FED.
RULES CIV. PROC., 61.  CF. KOTTEAKOS V. UNITED STATES, 328 U.S. 750. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IS VACATED
AND THE CASE REMANDED TO THE DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF TEXAS FOR PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  315 F.2D 660, 662 (BROWN, J., DISSENTING). 

FN2  THE MAJORITY OF THE COURT OF APPEALS EXPLAINED ITS CONCLUSIONS
AS FOLLOWS: 

"IN VIEW OF THE FACT THAT THE JURY, HAVING DECIDED THE QUESTION OF
STATUS ADVERSELY TO APPELLANT, NEVER REACHED THE ISSUE OF DAMAGES, WE
BELIEVE THAT THE ERROR DID NOT PREJUDICE APPELLANT AND WAS HARMLESS." 
315 F.2D 660, AT 662. 

FN3  NOT UNTIL AFTER THE VERDICT AND AFTER THE DISCHARGE OF THE JURY
DID COUNSEL LEARN OF THE JURY'S INQUIRY AND THE JUDGE'S REPLY. 
PETITIONER'S COUNSEL, WHEN INFORMED, IMMEDIATELY TOOK EXCEPTION TO THE
PROCEDURE AND THE REPLY.  HOWEVER, FOR PRESENT PURPOSES WE NEED NOT
QUESTION THE PERMISSIBILITY OF THE PROCEDURES INVOLVED. 

FN4  SEE NOTE 2, SUPRA. 

MR. JUSTICE HARLAN, DISSENTING. 

I AM OF THE OPINION THAT THE PETITION FOR CERTIORARI SHOULD HAVE BEEN
DENIED IN THIS CASE, WHICH RAISES ONLY A QUESTION OF THE ADMISSIBILITY
OF CERTAIN EVIDENCE AND A RULING OF THE COURT OF APPEALS THAT THE
ADMISSION OF THE EVIDENCE, WHICH IT THOUGHT ERRONEOUS, WAS HARMLESS. 
SEE MY OPINION IN FERGUSON V. MOORE-MCCORMACK LINES, INC., 352 U.S.
521, 559, AND THE DISSENTING OPINION OF MR. JUSTICE FRANKFURTER IN THE
SAME CASE, ID., AT 524. 

SINCE THE PETITION HAS BEEN GRANTED, I AM CONSTRAINED TO SAY THAT I
AM DOUBTFUL OF THE RULING BELOW THAT EVIDENCE PROBATIVE OF THE
PETITIONER'S BELIEF AS TO HIS STATUS AS A SEAMAN OR DRILLING EMPLOYEE
WAS IRRELEVANT TO THE ISSUE OF WHAT HIS STATUS ACTUALLY WAS.  HIS
BELIEF TO BE SURE DID NOT AMOUNT TO A DEMONSTRATION OF THE FACT; BUT IT
SEEMS TO ME SUFFICIENTLY RELEVANT TO BE NOT CLEARLY INADMISSIBLE ON THE
ISSUE OF HIS STATUS, TO SHOW WHICH WAS THE PURPOSE FOR WHICH THE
EVIDENCE WAS OFFERED.  IN ANY EVENT, I FIND NO SOLID REASON FOR
DISTURBING THE VIEW OF THE COURT OF APPEALS THAT THE ADMISSION OF THIS
EVIDENCE IN THE CIRCUMSTANCES OF THIS CASE DID NOT PREJUDICE THE
PETITIONER AND WAS, THEREFORE, HARMLESS ERROR. 

ACCORDINGLY, WHILE I BELIEVE THE CASE IS NOT "CERTWORTHY," I WOULD
AFFIRM THE JUDGMENT BELOW. 
..END :










SHENANDOAH BROADCASTING, INC. V. AMERICAN SOCIETY OF COMPOSERS, AUTHORS
AND PUBLISHERS 375 U.S. 39 


NO. 323.  DECIDED OCTOBER 21, 1963.  - 317 F.2D 90, CERTIORARI GRANTED;
REVERSED AND CAUSE REMANDED. 


IN A SUIT BY THE UNITED STATES UNDER THE SHERMAN ACT, THE DISTRICT
COURT ENTERED A DECREE REQUIRING RESPONDENT, INTER ALIA, TO "GRANT TO
ANY USER MAKING WRITTEN APPLICATION THEREFOR A NONEXCLUSIVE LICENSE TO
PERFORM ALL OF THE COMPOSITIONS" IN RESPONDENT'S REPERTORY SUBJECT TO A
REASONABLE LICENSE FEE.  ON REQUEST OF PETITIONERS FOR A LICENSE,
RESPONDENT REFUSED TO FIX A FEE.  PURSUANT TO THE DECREE, PETITIONERS
APPLIED TO THE DISTRICT COURT FOR AN ORDER FIXING A REASONABLE FEE. 
THE DISTRICT COURT FOUND THAT THE DECREE DID NOT REQUIRE RESPONDENT TO
ISSUE THE TYPE OF LICENSE PETITIONERS HAD REQUESTED, AND IT DISMISSED
THE APPLICATION.  PETITIONERS APPEALED TO THE COURT OF APPEALS AND ALSO
APPEALED DIRECTLY TO THIS COURT UNDER SEC. 2 OF THE EXPEDITING ACT, 15
U.S.C. SEC. 29.  THIS COURT DISMISSED THE DIRECT APPEAL TO IT "FOR WANT
OF JURISDICTION."  371 U.S. 540.  THEREAFTER, THE COURT OF APPEALS
DISMISSED THE APPEAL TO IT, ON THE GROUND THAT ALL SUCH APPEALS ARE
"ROUTED" TO THIS COURT BY THE EXPEDITING ACT.  HELD:  AN APPEAL FROM AN
ANCILLARY ORDER OF THIS TYPE IS NOT WITHIN THE EXPEDITING ACT, AND AN
APPEAL DOES LIE TO THE COURT OF APPEALS UNDER 28 U.S.C. SEC. 1291.  PP.
39-41. 

SHENANDOAH VALLEY BROADCASTING, INC., ET AL. V. AMERICAN SOCIETY OF
COMPOSERS, AUTHORS AND PUBLISHERS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

IN 1950 THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
ENTERED AN AMENDED CONSENT DECREE IN A GOVERNMENT SHERMAN ACT SUIT
REQUIRING ASCAP INTER ALIA TO "GRANT TO ANY USER MAKING WRITTEN
APPLICATION THEREFOR A NON-EXCLUSIVE LICENSE TO PERFORM ALL OF THE
COMPOSITIONS IN THE ASCAP REPERTORY" SUBJECT TO A REASONABLE LICENSE
FEE.  ON REQUEST OF PETITIONERS FOR A LICENSE ASCAP REFUSED TO FIX A
FEE AND, AS PROVIDED BY THE AMENDED CONSENT DECREE, THIS APPLICATION
WAS FILED FOR AN ORDER TO FIX A REASONABLE FEE.  THE DISTRICT COURT
FOUND THAT THE CONSENT DECREE DID NOT REQUIRE ASCAP TO ISSUE THE TYPE
OF LICENSE PETITIONERS REQUESTED AND, THEREFORE, DISMISSED THE
APPLICATION.  208 F. SUPP. 896.  THE PETITIONERS TOOK AN APPEAL TO THE
COURT OF APPEALS AND ALSO PERFECTED A DIRECT ONE TO THIS COURT UNDER
SEC. 2 OF THE EXPEDITING ACT.  15 U.S.C. SEC. 29.  WE DISMISSED THE
APPEAL FILED HERE FOR WANT OF JURISDICTION, 371 U.S. 540 (1963). 
THEREAFTER, THE COURT OF APPEALS DISMISSED THE APPEAL PERFECTED THERE,
317 F.2D 90, ON THE GROUND THAT ALL APPEALS ARE "ROUTED" TO THIS COURT
BY THE EXPEDITING ACT AND THIS PETITION BRINGS THAT QUESTION HERE ONCE
AGAIN. 

THE DISMISSAL THAT WE HERETOFORE ENTERED WAS BASED ON OUR UNEXPRESSED
VIEW THAT THE APPEAL FROM AN ANCILLARY ORDER OF THIS TYPE WAS NOT
WITHIN THE EXPEDITING ACT.  DIRECT APPEALS TO THIS COURT ARE AUTHORIZED
BY THAT ACT ONLY FROM FINAL JUDGMENTS WHERE THE UNITED STATES IS A
COMPLAINANT.  THE PURPOSE OF THE ACT IS TO EXPEDITE LITIGATION OF
"GREAT AND GENERAL IMPORTANCE" WHERE THE GOVERNMENT IS THE AGGRIEVED
PARTY.  SEE 36 CONG. REC. 1679 (1903).  THE CONTROVERSY WHICH IS
DISPOSED OF BY THE DISTRICT COURT'S ORDER IS ENTIRELY BETWEEN PRIVATE
PARTIES AND IS OUTSIDE THE MAINSTREAM OF THE LITIGATION IN WHICH THE
GOVERNMENT IS DIRECTLY CONCERNED.  COMPARE TERMINAL R. R. ASSN. V.
UNITED STATES, 266 U.S. 17; ALUMINUM CO. OF AMERICAN V. UNITED STATES,
302 U.S. 230.  IN THESE CIRCUMSTANCES, AND THE ORDER BEING FINAL RATHER
THAN INTERLOCUTORY, WE BELIEVE THAT THE APPEAL DOES LIE UNDER 28 U.S.C.
SEC. 1291.  THE PETITION IS THEREFORE GRANTED AND THE JUDGMENT IS
REVERSED AND THE CAUSE REMANDED TO THE COURT OF APPEALS FOR
CONSIDERATION ON ITS MERITS.  IT IS SO ORDERED. 

MR. JUSTICE BLACK ACQUIESCES IN THE COURT'S JUDGMENT BECAUSE OF THE
HOLDING IN THE PRIOR APPEAL. 
..END :
























DUNLAP V. OHIO 375 U.S. 42 


NO. 288.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


DUNLAP ET AL. V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















STOVER V. NEW YORK 375 U.S. 42 


NO. 313.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  REPORTED BELOW:  12 N.Y.2D 462, 191
N.E.2D 272. 


STOVER ET VIR V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















HUMBLE OIL & REFINING CO. V. MALE 375 U.S. 43 


NO. 326.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


HUMBLE OIL & REFINING CO. ET AL. V. MALE, COMMISSIONER, DEPARTMENT OF
LABOR & INDUSTRY, NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















DAVIS V. CITY OF BOWLING GREEN, KENTUCKY 375 U.S. 43 


NO. 331.  DECIDED OCTOBER 21, 1963.  - JUDGMENT AFFIRMED. 


DAVIS ET AL. V. CITY OF BOWLING GREEN, KENTUCKY, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF KENTUCKY. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















FIELDS V. SOUTH CAROLINA 375 U.S. 44 


NO. 335.  DECIDED OCTOBER 21, 1963.  - CERTIORARI GRANTED AND JUDGMENT
REVERSED. 


FIELDS ET AL. V. SOUTH CAROLINA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH
CAROLINA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
REVERSED.  EDWARDS V. SOUTH CAROLINA, 372 U.S. 229. 
..END :
















CADE V. LOUISIANA 375 U.S. 44 


NO. 340.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CADE V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :













HESS V. KRIZ 375 U.S. 45 


NO. 318, MISC.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  REPORTED BELOW: 379 P.2D 851. 


HESS ET AL. V. KRIZ ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















LUOMALA V. SHORE 375 U.S. 45 


NO. 426, MISC.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


LUOMALA V. SHORE, CHIEF EXECUTIVE OF UNITED STATES BOARD OF PAROLE. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















JACOBS V. ARIZONA 375 U.S. 46 


NO. 420, MISC.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  REPORTED BELOW: 93 ARIZ. 336, 380 P.2D 998. 


JACOBS V. ARIZONA. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CHODOROV V. NEW YORK 375 U.S. 46 


NO. 477, MISC.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  REPORTED BELOW: 12 N.Y.2D 176, 188 N.E.2D 124. 


CHODOROV V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SIMMONS V. OSWALD 375 U.S. 47 


NO. 500, MISC.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 


SIMMONS V. OSWALD, CHAIRMAN, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















THOMPSON V. MISSOURI 375 U.S. 47 


NO. 551, MISC.  DECIDED OCTOBER 21, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  REPORTED BELOW:  363 S.W.2D 711. 


THOMPSON V. MISSOURI. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















ARISTEGUIETA V. FIRST NATIONAL BANK OF NEW YORK 375 U.S. 48 


NO. 1.  DECIDED OCTOBER 21, 1963.  - REPORTED BELOW:  274 F.2D 206. 


JUDGMENT VACATED AND CASE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS
TO DISMISS THE CAUSE AS MOOT. 

ARISTEGUIETA, CONSUL GENERAL OF THE REPUBLIC OF VENEZUELA, V. FIRST
NATIONAL BANK OF NEW YORK ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE MOTION TO VACATE THE JUDGMENT IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA WITH INSTRUCTIONS TO DISMISS THE
CAUSE AS MOOT. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







ARISTEGUIETA V. FIRST NATIONAL BANK OF NEW YORK 375 U.S. 49 


NO. 2.  DECIDED OCTOBER 21, 1963.  - REPORTED BELOW:  287 F.2D 219. 


JUDGMENT VACATED AND CASE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS
TO DISMISS THE CAUSE AS MOOT. 

ARISTEGUIETA, CONSUL GENERAL OF THE REPUBLIC OF VENEZUELA, V. FIRST
NATIONAL BANK OF NEW YORK ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE MOTION TO VACATE THE JUDGMENT IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK WITH INSTRUCTIONS TO DISMISS THE
CAUSE AS MOOT. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







CREWS V. WAINWRIGHT 375 U.S. 50 


NO. 59, MISC.  DECIDED OCTOBER 21, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


CREWS V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF FLORIDA FOR FURTHER
CONSIDERATION IN LIGHT OF GIDEON V. WAINWRIGHT, 372 U.S. 335. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK DISSENT FOR THE REASON THAT
THE JUDGMENT RESTS ON AN ADEQUATE STATE GROUND. 
..END :












BANKS V. WAINWRIGHT 375 U.S. 51 


NO. 76, MISC.  DECIDED OCTOBER 21, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


BANKS V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF FLORIDA FOR FURTHER
CONSIDERATION IN LIGHT OF GIDEON V. WAINWRIGHT, 372 U.S. 335. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK DISSENT FOR THE REASON THAT
THE JUDGMENT RESTS ON AN ADEQUATE STATE GROUND. 
..END :












DAEGELE V. KANSAS 375 U.S. 1 


NO. 72, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  190 KAN. 613, 376 P.2D
807. 


DAEGELE V. KANSAS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF KANSAS FOR FURTHER
CONSIDERATION IN LIGHT OF DOUGLAS V. CALIFORNIA, 372 U.S. 353. 

FOR REASONS EXPRESSED IN HIS DISSENTING OPINION IN NO. 16, MISC.,
PICKELSIMER V. WAINWRIGHT, POST, P. 3, AND RELATED CASES, MR. JUSTICE
HARLAN WOULD SET THIS CASE FOR ARGUMENT OF THE QUESTION WHETHER DOUGLAS
V. CALIFORNIA, 372 U.S. 353, SHOULD BE APPLIED RETROACTIVELY. 
..END :









PICKELSIMER V. WAINWRIGHT 375 U.S. 2 


NO. 16, MISC.  DECIDED OCTOBER 14, 1963.* - CERTIORARI GRANTED;
JUDGMENTS VACATED; AND CASES REMANDED FOR FURTHER CONSIDERATION IN
LIGHT OF GIDEON V. WAINWRIGHT, 372 U.S. 335. 

*TOGETHER WITH NO. 36, MISC., MIHELCICH V. WAINWRIGHT, CORRECTIONS
DIRECTOR; NO. 54, MISC., COWAN V. WAINWRIGHT, CORRECTIONS DIRECTOR; NO.
55, MISC., DUMOND V. WAINWRIGHT, CORRECTIONS DIRECTOR; NO. 60, MISC.,
SHARP V. WAINWRIGHT, CORRECTIONS DIRECTOR; NO. 62, MISC., BAKER V.
WAINWRIGHT, CORRECTIONS DIRECTOR; NO. 70, MISC., HEARD V. WAINWRIGHT,
CORRECTIONS DIRECTOR; NO. 71, MISC., CAMPBELL V. WAINWRIGHT,
CORRECTIONS DIRECTOR; NO. 86, MISC., MITCHELL V. WAINWRIGHT,
CORRECTIONS DIRECTOR; AND NO. 87, MISC., KITCHENS V. WAINWRIGHT,
CORRECTIONS DIRECTOR, ALL ON PETITIONS FOR WRITS OF CERTIORARI TO THE
SUPREME COURT OF FLORIDA. 


PICKELSIMER V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITIONS
FOR WRITS OF CERTIORARI ARE GRANTED.  THE JUDGMENTS ARE VACATED AND THE
CASES ARE REMANDED TO THE SUPREME COURT OF FLORIDA FOR FURTHER
CONSIDERATION IN LIGHT OF GIDEON V. WAINWRIGHT, 372 U.S. 335. 

MR. JUSTICE HARLAN, DISSENTING. 

I AM UNABLE TO AGREE WITH THE COURT'S SUMMARY DISPOSITION OF THESE 10
FLORIDA CASES, AND BELIEVE THAT THE FEDERAL QUESTION WHICH THEY PRESENT
IN COMMON IS DESERVING OF FULL-DRESS CONSIDERATION.  THAT QUESTION IS
WHETHER THE DENIAL OF AN INDIGENT DEFENDANT'S RIGHT TO COURT-APPOINTED
COUNSEL IN A STATE CRIMINAL TRIAL AS ESTABLISHED LAST TERM IN GIDEON V.
WAINWRIGHT, 372 U.S. 335, OVERRULING BETTS V. BRADY, 316 U.S. 455,
INVALIDATES HIS PRE-GIDEON CONVICTION. 

WHEN THIS COURT IS CONSTRAINED TO CHANGE WELL-ESTABLISHED
CONSTITUTIONAL RULES GOVERNING STATE CRIMINAL PROCEEDINGS, AS HAS BEEN
DONE HERE AND IN OTHER RECENT CASES, SEE, E.G., MAPP V. OHIO, 367 U.S.
643; KER V. CALIFORNIA, 374 U.S. 23; DOUGLAS V. CALIFORNIA, 372 U.S.
353, IT SEEMS TO ME THAT THE QUESTION WHETHER THE STATES ARE
CONSTITUTIONALLY REQUIRED TO APPLY THE NEW RULE RETROSPECTIVELY, WHICH
MAY WELL REQUIRE THE REOPENING OF CASES LONG SINCE FINALLY ADJUDICATED
IN ACCORDANCE WITH THEN APPLICABLE DECISIONS OF THIS COURT, IS ONE THAT
SHOULD BE DECIDED ONLY AFTER INFORMED AND DELIBERATE CONSIDERATION. 
SURELY NO GENERAL ANSWER IS TO BE FOUND IN "THE FICTION THAT THE LAW
NOW ANNOUNCED HAS ALWAYS BEEN THE LAW."  GRIFFIN V. ILLINOIS, 351 U.S.
12, 26 (FRANKFURTER, J., CONCURRING).  NOR DO I BELIEVE THAT THE
CIRCUMSTANCE THAT GIDEON WAS DECIDED IN THE CONTEXT OF A STATE
COLLATERAL PROCEEDING RATHER THAN UPON DIRECT REVIEW, AS WERE THE NEW
CONSTITUTIONAL DOCTRINES ENUNCIATED IN MAPP AND KER, FORECLOSES
CONSIDERATION OF THE RETROACTIVITY ISSUE IN THIS INSTANCE.  (FN1) 

IN THE CURRENT SWIFT PACE OF CONSTITUTIONAL CHANGE, THE TIME HAS COME
FOR THE COURT TO DEAL DEFINITIVELY WITH THIS IMPORTANT AND FAR-REACHING
SUBJECT.  (FN2)  WITHOUT INTIMATING ANY VIEW AS TO HOW THE QUESTION
SHOULD BE DECIDED IN THESE CASES, I WOULD SET ONE OR MORE OF THEM FOR
ARGUMENT.  (FN3) 

FN1  THE COURT'S OPINION IN GIDEON CONTAINS NO DISCUSSION OF THIS
ISSUE.  SIMILARLY, IN CASES DECIDED LAST TERM IN WHICH WE SUMMARILY
VACATED THE JUDGMENT AND REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF
GIDEON, E.G., BRYANT V. WAINWRIGHT, 374 U.S. 492, THE QUESTION OF
RETROACTIVITY WAS NOT TREATED IN THE DISPOSITIONS. 

FN2  SUCH CASES AS ESKRIDGE V. WASHINGTON STATE PRISON BOARD, 357
U.S. 214, AND NORVELL V. ILLINOIS, 373 U.S. 420, HARDLY CONSTITUTE
PRECEDENTS FOR A RULE OF GENERAL APPLICATION. 

FN3  IN ALL BUT TWO OF THESE CASES, THE STATE SUGGESTS THAT THE
JUDGMENTS CAN BE SUPPORTED ON AN ADEQUATE INDEPENDENT STATE GROUND,
EVEN THOUGH THE FLORIDA SUPREME COURT DENIED RELIEF WITHOUT HEARING OR
EXPLANATORY OPINION, AND DESPITE THE APPARENT CONCESSION IN NOS. 36 AND
87 THAT THE STATE COURT DID FACE THE FEDERAL QUESTION AND RULE
ADVERSELY TO THE PETITIONERS.  IT IS ABUNDANTLY CLEAR THAT EACH OF THE
STATE GROUNDS SUGGESTED IS EITHER PLAINLY UNAVAILING OR SO TENUOUS THAT
IT WOULD BE DISRESPECTFUL OF THE FLORIDA SUPREME COURT TO REGARD IT AS
THE BASIS OF THAT COURT'S JUDGMENT.  CF. KLINGER V. MISSOURI, 13 WALL. 
257; ADAMS V. RUSSELL, 229 U.S. 353, 358-359; WILLIAMS V. KAISER, 323
U.S. 471, 478-479.  ACCORDINGLY, I AM SATISFIED THAT THE FEDERAL
QUESTION IS PROPERLY BEFORE THIS COURT IN ALL OF THE CASES. 
..END :













LEMMON V. ROBERTSON 375 U.S. 5 


NO. 47.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 189 KAN. 619, 371 P.2D 175. 


LEMMON ET AL. V. ROBERTSON ET AL. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION OF APPELLEES, LEWIS WOODARD AND MAY WOODARD, FOR LEAVE TO
PROCEED IN FORMA PAUPERIS IS GRANTED.  THE MOTION TO DISMISS IS GRANTED
AND THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :











AVERITT V. MISSISSIPPI 375 U.S. 5 


NO. 162.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 246 MISS.  49, 149 SO. 2D 320. 


AVERITT ET AL. V. MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HENRY V. CITY OF ROCK HILL 375 U.S. 6 


NO. 97.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  241 S.C. 427, 128
S.E.2D 775. 


HENRY ET AL. V. CITY OF ROCK HILL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH
CAROLINA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF SOUTH CAROLINA
FOR FURTHER CONSIDERATION IN LIGHT OF EDWARDS V. SOUTH CAROLINA, 372
U.S. 229. 
..END :













RAPOPORT V. OHIO 375 U.S. 6 


NO. 212.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  174 OHIO ST. 134, 186
N.E.2D 840. 


RAPOPORT V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















RYAN V. PRESIDENT OF THE SENATE, U.S. CONGRESS 375 U.S. 7 


NO. 127.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


RYAN V. PRESIDENT OF THE SENATE, U.S. CONGRESS. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















WILLIAMS V. CITY OF WICHITA 375 U.S. 7 


NO. 132.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  190 KAN. 317, 374
P.2D 578. 


WILLIAMS V. CITY OF WICHITA. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















TRUNKLINE GAS CO. V. HARDIN COUNTY 375 U.S. 8 


NO. 153.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  311 F.2D 882. 


TRUNKLINE GAS CO. V. HARDIN COUNTY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT, IT APPEARING THAT THE STATE OF TEXAS HAS PASSED
A STATUTE IN CONNECTION WITH CONTROVERSIES OF THIS KIND SINCE THE
PETITION FOR A WRIT OF CERTIORARI WAS FILED IN THIS COURT.  THIS ORDER
IS ENTERED WITHOUT REACHING THE MERITS. 
..END :












KAUKAS V. CITY OF CHICAGO 375 U.S. 8 


NO. 259.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  27 ILL. 2D 197, 188
N.E.2D 700. 


KAUKAS ET UX. V. CITY OF CHICAGO. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SAYLES FINISHING PLANTS V. TOOMEY 375 U.S. 9 


NO. 188.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  SEE - R.I. - , 188
A.2D 91. 


SAYLES FINISHING PLANTS, INC., V. TOOMEY, TAX ASSESSOR. 

APPEAL FROM THE SUPERIOR COURT OF RHODE ISLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BREWER V. NORTH CAROLINA 375 U.S. 9 


NO. 291.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  258 N.C. 533, 129
S.E.2D 262. 


BREWER ET AL. V. NORTH CAROLINA. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















FRIEDMAN V. COURT ON THE JUDICIARY OF THE STATE OF NEW YORK 375 U.S. 10 



NO. 285.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


FRIEDMAN, JUSTICE, V. COURT ON THE JUDICIARY OF THE STATE OF NEW YORK. 

APPEAL FROM THE COURT ON THE JUDICIARY OF THE STATE OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :













LOUISIANA, SCHWEGMANN BANK & TRUST CO. V. JEANSONNE 375 U.S. 10 


NO. 311.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 144 SO. 2D 159. 


LOUISIANA EX REL. SCHWEGMANN BANK & TRUST CO. ET AL. V. JEANSONNE, STATE
BANK COMMISSIONER. 

APPEAL FROM THE COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















MILLER V. CITY OF CHICAGO 375 U.S. 11 


NO. 260.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  27 ILL. 2D 211, 188
N.E.2D 694. 


MILLER ET AL. V. CITY OF CHICAGO. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BUTLER V. DUNBAR 375 U.S. 11 


NO. 244.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 59 CAL. 2D 157, 378 P.2D 812. 


BUTLER V. DUNBAR, CORRECTIONS DIRECTOR. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :













ROADWAY EXPRESS V. UNITED STATES 375 U.S. 12 


NO. 177.  DECIDED OCTOBER 14, 1963.  - 213 F. SUPP. 868, AFFIRMED. 


ROADWAY EXPRESS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :















MATSON V. QUEEN'S HOSPITAL 375 U.S. 12 


NO. 353, MISC.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MATSON V. QUEEN'S HOSPITAL. 

APPEAL FROM THE SUPREME COURT OF HAWAII. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HIGBEE V. THOMAS 375 U.S. 13 


NO. 6, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


HIGBEE V. THOMAS, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
KENTUCKY. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS OF KENTUCKY FOR FURTHER
CONSIDERATION IN LIGHT OF PENNSYLVANIA EX REL. HERMAN V. CLAUDY, 350
U.S. 116. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE OF
THE OPINION THAT THE PETITION FOR A WRIT OF CERTIORARI SHOULD BE
DENIED. 
..END :









GRAY V. PENNSYLVANIA 375 U.S. 13 


NO. 383, MISC.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


GRAY V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :
















IN RE JENISON 375 U.S. 14 


NO. 238.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  265 MINN. 96, 120
N.W.2D 515. 


IN RE JENISON. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
MINNESOTA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF MINNESOTA FOR
FURTHER CONSIDERATION IN LIGHT OF SHERBERT V. VERNER, 374 U.S. 398. 
..END :














JOHNSON V. WILKINS 375 U.S. 14 


NO. 141, MISC.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW: 12 N.Y.2D 843,
187 N.E.2D 473. 


JOHNSON V. WILKINS, WARDEN. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















STATE CORPORATION COMMISSION OF KANSAS V. UNITED STATES 375 U.S. 15 


NO. 217.  DECIDED OCTOBER 14, 1963.  - 216 F. SUPP. 376, AFFIRMED. 


STATE CORPORATION COMMISSION OF KANSAS V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :















SALAS V. TEXAS 375 U.S. 15 


NO. 118, MISC.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW: 365 S.W.2D 174. 


SALAS V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















REATZ V. NEW YORK 375 U.S. 16 


NO. 50, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


REATZ V. NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DIVISION, SUPREME
COURT OF NEW YORK, SECOND JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW
YORK, SECOND JUDICIAL DEPARTMENT, FOR FURTHER CONSIDERATION IN LIGHT OF
GRIFFIN V. ILLINOIS, 351 U.S. 12, ESKRIDGE V. WASHINGTON PRISON BOARD,
357 U.S. 214, AND NORVELL V. ILLINOIS, 373 U.S. 420. 
..END :












CEPERO V. PELOSO 375 U.S. 16 


NO. 116, MISC.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED FOR WANT
OF JURISDICTION. 


CEPERO V. PELOSO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 
..END :
















KING V. KING 375 U.S. 17 


NO. 153, MISC.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  218 GA. 534, 129 S.E.2D 147. 


KING ET AL. V. KING ET AL. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION.  TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A
PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















RYAN V. TINSLEY 375 U.S. 17 


NO. 403, MISC.  DECIDED OCTOBER 14, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  316 F.2D 430. 


RYAN V. TINSLEY, WARDEN. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION.  TREATING THE
PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF
CERTIORARI, CERTIORARI IS DENIED. 
..END :















BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO & ILLINOIS MIDLAND RAILWAY
CO. 375 U.S. 18 


NO. 225.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED FOR DISMISSAL BECAUSE OF MOOTNESS.  -
REPORTED BELOW:  315 F.2D 771. 


BROTHERHOOD OF RAILROAD TRAINMEN ET AL. V. CHICAGO & ILLINOIS MIDLAND
RAILWAY CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS FOR DISMISSAL BECAUSE OF
MOOTNESS. 
..END :











WABANINGO BOY SCOUT CAMP V. MICHIGAN TAX COMMISSION 375 U.S. 19 


NO. 231.  DECIDED OCTOBER 14, 1963.* - APPEALS DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  NO. 231, 369 MICH.
165, 119 N.W.2D 648; NO. 232, 369 MICH. 1, 118 N.W.2D 818. 

*TOGETHER WITH NO. 232, EVANSTON Y.M.C.A. CAMP V. MICHIGAN TAX
COMMISSION, ALSO ON APPEAL FROM THE SAME COURT. 


WABANINGO BOY SCOUT CAMP V. MICHIGAN TAX COMMISSION. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEALS ARE DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :













SCARNATO V. LAVALLEE 375 U.S. 20 


NO. 8, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


SCARNATO V. LAVALLEE, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT FOR FURTHER CONSIDERATION IN LIGHT OF FAY V. NOIA, 372 U.S.
391. 

MR. JUSTICE STEWART IS OF THE OPINION THAT THE PETITION FOR A WRIT OF
CERTIORARI SHOULD BE DENIED. 
..END :










NEWSOME V. NORTH CAROLINA 375 U.S. 21 


NO. 11, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


NEWSOME V. NORTH CAROLINA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR
A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE CASE
IS REMANDED TO THE SUPREME COURT OF NORTH CAROLINA FOR FURTHER
CONSIDERATION IN LIGHT OF GIDEON V. WAINWRIGHT, 372 U.S. 335. 

MR. JUSTICE HARLAN, FOR THE REASONS STATED IN HIS DISSENTING OPINION
IN PICKELSIMER V. WAINWRIGHT, ANTE, P. 3, WOULD HAVE WITHHELD
DISPOSITION OF THIS PETITION FOR CERTIORARI UNTIL THE DISPOSITION,
AFTER ARGUMENT, OF THAT CASE. 
..END :









SHOCKEY V. ILLINOIS 375 U.S. 22 


NO. 20, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  25 ILL. 2D 528, 185
N.E.2D 893. 


SHOCKEY V. ILLINOIS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF ILLINOIS FOR FURTHER
CONSIDERATION IN LIGHT OF DOUGLAS V. CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE HARLAN, FOR THE REASONS STATED IN DAEGELE V. KANSAS,
ANTE, P. 1, WOULD HAVE WITHHELD DISPOSITION OF THIS PETITION FOR
CERTIORARI UNTIL THE DISPOSITION, AFTER ARGUMENT, OF THAT CASE. 
..END :










COOPER V. ALABAMA 375 U.S. 23 


NO. 32, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  274 ALA. 471, 149 SO.
2D 834. 


COOPER V. ALABAMA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF ALABAMA FOR FURTHER
CONSIDERATION IN LIGHT OF LANE V. BROWN, 372 U.S. 477. 
..END :














AUSBIE V. CALIFORNIA 375 U.S. 24 


NO. 52, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


AUSBIE V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF CALIFORNIA FOR FURTHER
CONSIDERATION IN LIGHT OF DOUGLAS V. CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE HARLAN, FOR THE REASONS STATED IN DAEGELE V. KANSAS,
ANTE, P. 1, WOULD HAVE WITHHELD DISPOSITION OF THIS PETITION FOR
CERTIORARI UNTIL THE DISPOSITION, AFTER ARGUMENT, OF THAT CASE. 
..END :










NICHOLSON V. BOLES 375 U.S. 25 


NO. 68, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


NICHOLSON V. BOLES, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
WEST VIRGINIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  IN LIGHT OF THE CONFESSION OF
ERROR BY THE ATTORNEY GENERAL AND UPON AN EXAMINATION OF THE RECORD,
THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT
OF APPEALS OF WEST VIRGINIA FOR FURTHER CONSIDERATION. 

MR. JUSTICE STEWART IS OF THE OPINION THE PETITION FOR A WRIT OF
CERTIORARI SHOULD BE DENIED. 
..END :










HERRERA V. HEINZE 375 U.S. 26 


NO. 82, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


HERRERA V. HEINZE, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF CALIFORNIA FOR FURTHER
CONSIDERATION IN LIGHT OF DOUGLAS V. CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE HARLAN, FOR THE REASONS STATED IN DAEGELE V. KANSAS,
ANTE, P. 1, WOULD HAVE WITHHELD DISPOSITION OF THIS PETITION FOR
CERTIORARI UNTIL THE DISPOSITION, AFTER ARGUMENT, OF THAT CASE. 
..END :










TABB V. CALIFORNIA 375 U.S. 27 


NO. 83, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


TABB V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF CALIFORNIA FOR FURTHER
CONSIDERATION IN LIGHT OF DOUGLAS V. CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE HARLAN, FOR THE REASONS STATED IN DAEGELE V. KANSAS,
ANTE, P. 1, WOULD HAVE WITHHELD DISPOSITION OF THIS PETITION FOR
CERTIORARI UNTIL THE DISPOSITION, AFTER ARGUMENT, OF THAT CASE. 
..END :










BARNES V. NORTH CAROLINA 375 U.S. 28 


NO. 385, MISC.  DECIDED OCTOBER 14, 1963.  - CERTIORARI GRANTED;
JUDGMENT VACATED; AND CASE REMANDED. 


BARNES V. NORTH CAROLINA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF NORTH CAROLINA FOR FURTHER
CONSIDERATION IN LIGHT OF GIDEON V. WAINWRIGHT, 372 U.S. 335. 

MR. JUSTICE HARLAN, FOR THE REASONS STATED IN HIS DISSENTING OPINION
IN PICKELSIMER V. WAINWRIGHT, ANTE, P. 3, WOULD HAVE WITHHELD
DISPOSITION OF THIS PETITION FOR CERTIORARI UNTIL THE DISPOSITION,
AFTER ARGUMENT, OF THAT CASE. 
..END :









YELLIN V. UNITED STATES 374 U.S. 109 


NO. 35.  ARGUED APRIL 18-19, 1962 - RESTORED TO THE CALENDAR FOR
REARGUMENT JUNE 25, 1962 - REARGUED DECEMBER 6, 1962 - DECIDED JUNE 17,
1963 - 287 F.2D 292, REVERSED. 


PETITIONER WAS SUMMONED TO APPEAR AS A WITNESS BEFORE THE HOUSE
COMMITTEE ON UN-AMERICAN ACTIVITIES, WHICH WAS INVESTIGATING
INFILTRATION OF COMMUNISTS INTO THE STEEL INDUSTRY.  PETITIONER'S
COUNSEL TELEGRAPHED THE GENERAL COUNSEL OF THE COMMITTEE, REQUESTING
THAT PETITIONER BE PERMITTED TO TESTIFY IN AN EXECUTIVE SESSION,
BECAUSE THAT WOULD AVOID "EXPOSING WITNESSES TO PUBLICITY."  WITHOUT
AUTHORIZATION, THE COMMITTEE'S STAFF DIRECTOR REPLIED BY TELEGRAM THAT
THE REQUEST WAS DENIED.  AT THE BEGINNING OF THE HEARING SEVERAL DAYS
LATER, PETITIONER'S COUNSEL TRIED TO HAVE THESE TELEGRAMS READ INTO THE
RECORD; BUT THIS WAS DENIED AND NEITHER PETITIONER NOR HIS COUNSEL WAS
PERMITTED TO DISCUSS THE SUBJECT.  WITHOUT SPECIFYING THIS AS THE
REASON, PETITIONER REFUSED TO ANSWER QUESTIONS ASKED HIM BY THE
COMMITTEE, AND HE WAS INDICTED FOR VIOLATING 2 U.S.C. SEC. 192.  AT THE
TRIAL, PETITIONER CONTENDED THAT THE COMMITTEE HAD VIOLATED ITS RULE
IV, WHICH PROVIDES THAT WITNESSES SHALL BE INTERROGATED IN EXECUTIVE
SESSION, IF A MAJORITY OF THE COMMITTEE BELIEVES THAT HIS PUBLIC
INTERROGATION MIGHT "ENDANGER NATIONAL SECURITY OR UNJUSTLY INJURE HIS
REPUTATION, OR THE REPUTATION OF OTHER INDIVIDUALS"; BUT PETITIONER WAS
CONVICTED AND SENTENCED TO A FINE AND IMPRISONMENT.  HELD:  ON THE
RECORD IN THIS CASE, IT APPEARS THAT THE COMMITTEE VIOLATED ITS OWN
RULE IV BY FAILING TO GIVE CONSIDERATION TO THE QUESTION WHETHER
INTERROGATION IN PUBLIC WOULD INJURE PETITIONER'S REPUTATION AND BY
FAILING TO ACT ON HIS REQUEST THAT HE BE INTERROGATED IN EXECUTIVE
SESSION; AND PETITIONER'S CONVICTION FOR REFUSAL TO TESTIFY IN PUBLIC
CANNOT STAND.  PP. 110-124. 

(A)  THE COMMITTEE'S RULE IV IS QUITE EXPLICIT IN REQUIRING THAT
INJURY TO A WITNESS' REPUTATION BE CONSIDERED, ALONG WITH DANGER TO
NATIONAL SECURITY AND INJURY TO THE REPUTATION OF A THIRD PARTY, IN
DECIDING WHETHER TO HOLD AN EXECUTIVE SESSION.  PP. 114-115. 

(B)  RULE IV CONFERRED UPON WITNESSES THE RIGHT TO REQUEST AN
EXECUTIVE SESSION AND THE RIGHT TO HAVE THE COMMITTEE ACT UPON SUCH A
REQUEST, ACCORDING TO THE STANDARDS SET FORTH IN THE RULE.  PP. 115
117. 

(C)  THAT A WITNESS MAY BE QUESTIONED IN PUBLIC, EVEN AFTER AN
EXECUTIVE SESSION HAS BEEN HELD, DOES NOT MEAN THAT THE COMMITTEE IS
FREED FROM CONSIDERING POSSIBLE INJURY TO HIS REPUTATION.  PP. 117
118. 

(D)  IT APPEARS FROM THE RECORD THAT THE COMMITTEE VIOLATED ITS OWN
RULE IN THIS CASE BY DECIDING TO INTERROGATE PETITIONER PUBLICLY
WITHOUT GIVING ANY CONSIDERATION TO THE QUESTION WHETHER TO DO SO WOULD
INJURE PETITIONER'S REPUTATION.  PP. 118-119. 

(E)  THE COMMITTEE ALSO VIOLATED ITS OWN RULE BY FAILING TO ACT UPON
PETITIONER'S EXPRESS REQUEST FOR AN EXECUTIVE SESSION, EVEN THOUGH THAT
REQUEST WAS DIRECTED TO THE COMMITTEE'S GENERAL COUNSEL, INSTEAD OF THE
CHAIRMAN.  PP. 119-121. 

(F)  THE ONLY REMEDY PETITIONER HAD FOR THIS DENIAL OF HIS RIGHTS
UNDER THE RULE WAS HIS REFUSAL TO TESTIFY.  PP. 121-122. 

(G)  PETITIONER'S RIGHTS UNDER RULE IV WERE NOT FORFEITED BY HIS
FAILURE TO MAKE CLEAR AT THE TIME HE WAS QUESTIONED THAT HIS REFUSAL TO
TESTIFY WAS BASED UPON THE COMMITTEE'S DEPARTURE FROM RULE IV.  PP. 122
124. 

YELLIN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CONTEMPT OF CONGRESS CASE, STEMMING FROM INVESTIGATIONS
CONDUCTED BY THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES, INVOLVES,
AMONG OTHERS, QUESTIONS OF WHETHER THE HOUSE COMMITTEE ON UN-AMERICAN
ACTIVITIES FAILED TO COMPLY WITH ITS RULES AND WHETHER SUCH A FAILURE
EXCUSED PETITIONER'S REFUSAL TO ANSWER THE COMMITTEE'S QUESTIONS. 

PETITIONER EDWARD YELLIN WAS INDICTED IN THE NORTHERN DISTRICT OF
INDIANA ON FIVE COUNTS OF WILLFULLY REFUSING TO ANSWER QUESTIONS PUT TO
HIM BY A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES
(HEREAFTER COMMITTEE) AT A PUBLIC HEARING.  HE WAS CONVICTED, UNDER 2
U.S.C. SEC. 192, OF CONTEMPT OF CONGRESS ON FOUR COUNTS.  HE WAS
SENTENCED TO FOUR CONCURRENT TERMS OF IMPRISONMENT, EACH FOR ONE YEAR,
AND FINED $250.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
AFFIRMED.  287 F.2D 292.  SINCE THE CASE PRESENTED CONSTITUTIONAL
QUESTIONS OF CONTINUING IMPORTANCE, WE GRANTED CERTIORARI.  368 U.S.
816.  HOWEVER, BECAUSE OF THE VIEW WE TAKE OF THE COMMITTEE'S ACTION,
WHICH WAS AT VARIANCE WITH ITS RULES, WE DO NOT REACH THE
CONSTITUTIONAL QUESTIONS RAISED.  (FN1) 

THE FACTUAL SETTING IS FOR THE MOST PART NOT IN DISPUTE.  THE
COMMITTEE WAS ENGAGED, IN 1958, IN AN INVESTIGATION OF SO-CALLED
COLONIZATIONS BY THE COMMUNIST PARTY IN BASIC INDUSTRY.  ONE OF ITS
INQUIRIES FOCUSED UPON THE STEEL INDUSTRY IN GARY, INDIANA, WHERE
PETITIONER WAS EMPLOYED.  HAVING INFORMATION THAT PETITIONER WAS A
COMMUNIST, THE COMMITTEE DECIDED TO CALL YELLIN AND QUESTION HIM IN A
PUBLIC RATHER THAN AN EXECUTIVE SESSION.  THE COMMITTEE THEN SUBPOENAED
PETITIONER ON JANUARY 23, 1958.  HIS ATTORNEY, MR. RABINOWITZ, SENT A
TELEGRAM TO THE COMMITTEE'S GENERAL COUNSEL, MR. TAVENNER, ON THURSDAY,
FEBRUARY 6, 1958.  THE TELEGRAM ASKED FOR AN EXECUTIVE SESSION BECAUSE
"TESTIMONY NEEDED FOR LEGISLATIVE  . ..  PURPOSES CAN BE SECURED IN
EXECUTIVE SESSION WITHOUT EXPOSING WITNESSES TO PUBLICITY."  SINCE THE
COMMITTEE AND MR. TAVENNER HAD LEFT WASHINGTON, D.C., FOR GARY, THE
TELEGRAM WAS ANSWERED BY THE COMMITTEE'S STAFF DIRECTOR.  HIS REPLY
READ: 

"REURTEL (RE YOUR TELEGRAM?)  REQUESTING EXECUTIVE SESSION IN LIEU OF
OPEN SESSION FOR EDWARD YELLIN AND NICHOLAS BUSIC.  YOUR REQUEST
DENIED. 

"RICHARD ARENS  STAFF DIRECTOR" 

ACCORDING TO CONGRESSMAN WALTER, THE CHAIRMAN OF THE COMMITTEE, MR.
ARENS DID NOT HAVE AUTHORITY TO TAKE SUCH ACTION. 

PETITIONER'S COUNSEL ALSO SOUGHT TO BRING THE MATTER TO THE
COMMITTEE'S ATTENTION WHEN IT COMMENCED ITS PUBLIC HEARING THE
FOLLOWING MONDAY, FEBRUARY 10, 1958.  HIS EFFORTS TO HAVE THE TELEGRAMS
READ INTO THE RECORD WERE CUT SHORT BY CONGRESSMAN WALTER.  (FN2)  MR.
RABINOWITZ WOULD NOT HAVE BEEN JUSTIFIED IN CONTINUING, SINCE COMMITTEE
RULES PERMIT COUNSEL ONLY TO ADVISE A WITNESS, NOT TO ENGAGE IN ORAL
ARGUMENT WITH THE COMMITTEE.  RULE VIIB).  IN ANY EVENT, CONGRESSMAN
WALTER WAS NOT INTERESTED IN DISCUSSING THE CONTENT OF THE TELEGRAMS. 
FROM HIS SOMETIMES CONFLICTING TESTIMONY AT TRIAL, IT APPEARS HE DID
NOT EVEN KNOW WHAT THE TELEGRAMS SAID.  (FN3)  AND THOUGH CONGRESSMAN
WALTER SAID THE COMMITTEE WOULD CONSIDER IN EXECUTIVE SESSION WHETHER
TO MAKE THE TELEGRAMS A PART OF THE RECORD, IT APPEARS THAT WHATEVER
ACTION WAS TAKEN WAS WITHOUT KNOWLEDGE OF THE TELEGRAMS' CONTENTS. 
(FN4) 

IT IS AGAINST THIS BACKGROUND THAT THE COMMITTEE'S FAILURE TO COMPLY
WITH ITS OWN RULES MUST BE JUDGED.  IT HAS BEEN LONG SETTLED, OF
COURSE, THAT RULES OF CONGRESS AND ITS COMMITTEES ARE JUDICIALLY
COGNIZABLE.  CHRISTOFFEL V. UNITED STATES, 338 U.S. 84; UNITED STATES
V. SMITH, 286 U.S. 6; UNITED STATES V. BALLIN, 144 U.S. 1.  AND A
LEGISLATIVE COMMITTEE HAS BEEN HELD TO OBSERVANCE OF ITS RULES,
CHRISTOFFEL V. UNITED STATES, SUPRA, JUST AS, MORE FREQUENTLY,
EXECUTIVE AGENCIES HAVE BEEN.  SEE, E.G., VITARELLI V. SEATON, 359 U.S.
535; SERVICE V. DULLES, 354 U.S. 363. 

THE PARTICULAR COMMITTEE RULE INVOLVED, RULE IV, PROVIDES IN PART: 

"IV - EXECUTIVE AND PUBLIC HEARINGS: 

"A - EXECUTIVE: 

"(1)  IF A MAJORITY OF THE COMMITTEE OR SUBCOMMITTEE, DULY APPOINTED
AS PROVIDED BY THE RULES OF THE HOUSE OF REPRESENTATIVES, BELIEVES THAT
THE INTERROGATION OF A WITNESS IN A PUBLIC HEARING MIGHT ENDANGER
NATIONAL SECURITY OR UNJUSTLY INJURE HIS REPUTATION, OR THE REPUTATION
OF OTHER INDIVIDUALS, THE COMMITTEE SHALL INTERROGATE SUCH WITNESS IN
AN EXECUTIVE SESSION FOR THE PURPOSE OF DETERMINING THE NECESSITY OR
ADVISABILITY OF CONDUCTING SUCH INTERROGATION THEREAFTER IN A PUBLIC
HEARING. 

      *         *         *         *         * 

"B - PUBLIC HEARINGS: 

"(1)  ALL OTHER HEARINGS SHALL BE PUBLIC." 

THE RULE IS QUITE EXPLICIT IN REQUIRING THAT INJURY TO A WITNESS'
REPUTATION BE CONSIDERED, ALONG WITH DANGER TO THE NATIONAL SECURITY
AND INJURY TO THE REPUTATION OF THIRD PARTIES, IN DECIDING WHETHER TO
HOLD AN EXECUTIVE SESSION. 

AT THE THRESHOLD WE ARE MET WITH THE ARGUMENT THAT RULE IV WAS
WRITTEN TO PROVIDE GUIDANCE FOR THE COMMITTEE ALONE AND THAT IT WAS NOT
DESIGNED TO CONFER UPON WITNESSES THE RIGHT TO REQUEST AN EXECUTIVE
SESSION AND THE RIGHT TO HAVE THE COMMITTEE ACT, EITHER UPON THAT
REQUEST OR ON ITS OWN, ACCORDING TO THE STANDARDS SET FORTH IN THE
RULE.  IT SEEMS CLEAR, FROM THE STRUCTURE OF THE COMMITTEE'S RULES AND
FROM THE COMMITTEE'S PRACTICE, THAT SUCH IS NOT THE CASE. 

THE RULES ARE FEW IN NUMBER AND BRIEF - ALL 17 TAKE LITTLE MORE THAN
SIX PAGES IN THE RECORD.  YET THROUGHOUT THE RULES THE DOMINANT THEME
IS DEFINITION OF THE WITNESS' RIGHTS AND PRIVILEGES.  RULE II REQUIRES
THAT THE SUBJECT OF ANY INVESTIGATION BE ANNOUNCED AND THAT INFORMATION
SOUGHT BE "RELEVANT AND GERMANE TO THE SUBJECT."  RULE III REQUIRES
THAT WITNESSES BE SUBPOENAED "A REASONABLY SUFFICIENT TIME IN ADVANCE"
TO ALLOW THEM A CHANCE TO PREPARE AND EMPLOY COUNSEL.  RULE VI MAKES
AVAILABLE TO ANY WITNESS A TRANSCRIPT OF HIS TESTIMONY - THOUGH AT HIS
EXPENSE.  RULE VII GIVES EVERY WITNESS THE PRIVILEGE OF HAVING COUNSEL
ADVISE HIM DURING THE HEARING.  RULE VIII GIVES A WITNESS A REASONABLE
TIME TO GET OTHER COUNSEL, IF HIS ORIGINAL COUNSEL IS REMOVED FOR
FAILURE TO COMPLY WITH THE RULES.  RULE X MAKES DETAILED PROVISION FOR
THOSE PERSONS WHO HAVE BEEN NAMED AS SUBVERSIVE, FASCIST, COMMUNIST,
ETC., BY ANOTHER WITNESS.  SUCH PERSONS ARE GIVEN AN OPPORTUNITY TO
PRESENT REBUTTAL TESTIMONY AND ARE TO BE "ACCORDED THE SAME PRIVILEGES
AS ANY OTHER WITNESS APPEARING BEFORE THE COMMITTEE."  RULE XIII
PERMITS ANY WITNESS TO KEEP OUT OF THE RANGE OF TELEVISION CAMERAS. 
FINALLY, RULE XVII REQUIRES THAT EACH WITNESS "SHALL BE FURNISHED" A
COPY OF THE RULES.  ALL THESE WORK FOR THE WITNESS' BENEFIT.  THEY SHOW
THAT THE COMMITTEE HAS IN A NUMBER OF INSTANCES INTENDED TO ASSURE A
WITNESS FAIR TREATMENT, VIZ., THE RIGHT TO ADVICE OF COUNSEL, OR
PROTECTION FROM UNDUE PUBLICITY, VIZ., THE RIGHT NOT TO BE PHOTOGRAPHED
BY TELEVISION CAMERAS.  RULE IV, IN PROVIDING FOR AN EXECUTIVE SESSION
WHEN A PUBLIC HEARING MIGHT UNJUSTLY INJURE A WITNESS' REPUTATION, HAS
THE SAME PROTECTIVE IMPORT.  AND IF IT IS THE WITNESS WHO IS BEING
PROTECTED, THE MOST LOGICAL PERSON TO HAVE THE RIGHT TO ENFORCE THOSE
PROTECTIONS IS THE WITNESS HIMSELF. 

THE COMMITTEE'S PRACTICE REINFORCES THIS CONCLUSION.  CONGRESSMAN
WALTER TESTIFIED THAT THE COMMITTEE "ALWAYS" GAVE DUE CONSIDERATION TO
REQUESTS FOR EXECUTIVE SESSIONS.  (FN5)  WEIGHT SHOULD BE GIVEN SUCH A
PRACTICE OF THE COMMITTEE IN CONSTRUING ITS RULES, UNITED STATES V.
SMITH, 286 U.S. 6, 33.  THAT THE COMMITTEE HAS ENTERTAINED, AND ALWAYS
DOES ENTERTAIN, REQUESTS FOR EXECUTIVE SESSIONS REINFORCES THE
CONCLUSION THAT THE COMMITTEE INTENDED IN RULE IV TO GIVE THE
INDIVIDUAL WITNESS A RIGHT TO SOME CONSIDERATION OF HIS EFFORTS TO
PROTECT HIS REPUTATION. 

IT MUST BE ACKNOWLEDGED, OF COURSE, THAT RULE IV DOES NOT PROVIDE
COMPLETE PROTECTION.  THE COMMITTEE MAY NOT BE REQUIRED BY ITS RULES TO
AVOID EVEN UNJUST INJURY TO A WITNESS' REPUTATION.  ASSUMING THAT THE
COMMITTEE DECIDES TO HOLD AN EXECUTIVE SESSION, THE COMMITTEE NEED DO
SO ONLY "FOR THE PURPOSE OF DETERMINING THE NECESSITY OR ADVISABILITY
OF CONDUCTING SUCH INTERROGATION THEREAFTER IN A PUBLIC HEARING."  BY
INCLUSION OF THE WORD "NECESSITY" THE RULE MAY CONTEMPLATE CASES IN
WHICH THE COMMITTEE WILL PROCEED IN A PUBLIC HEARING DESPITE THE RISK
OR EVEN PROBABILITY OF INJURY TO THE WITNESS' REPUTATION.  (FN6) 

THAT PETITIONER MAY BE QUESTIONED IN PUBLIC, EVEN AFTER AN EXECUTIVE
SESSION HAS BEEN HELD, DOES NOT MEAN, HOWEVER, THAT THE COMMITTEE IS
FREED FROM CONSIDERING POSSIBLE INJURY TO HIS REPUTATION.  THE
COMMITTEE HAS AT LEAST UNDERTAKEN TO CONSIDER A WITNESS' REPUTATION AND
THE EFFORTS A WITNESS MAKES TO PROTECT IT, EVEN THOUGH THE COMMITTEE
MAY IN ITS DISCRETION NEVERTHELESS DECIDE THEREAFTER TO HOLD A PUBLIC
HEARING.  THE COMMITTEE FAILED IN TWO RESPECTS TO CARRY OUT THAT
UNDERTAKING IN YELLIN'S CASE. 

FIRST, IT DOES NOT APPEAR FROM CONGRESSMAN WALTER'S TESTIMONY THAT
THE COMMITTEE CONSIDERED INJURY TO THE WITNESS' REPUTATION WHEN IT
DECIDED AGAINST CALLING YELLIN IN EXECUTIVE SESSION: 

"Q.  (BY MR. RABINOWITZ) THE COMMITTEE DOES SOMETIMES HOLD EXECUTIVE
SESSIONS, DOESN'T IT? "A. (BY CONGRESSMAN WALTER) YES. 

"Q.  AND WHAT ARE THE CONSIDERATIONS WHICH THE COMMITTEE USES IN
DETERMINING WHETHER TO HOLD EXECUTIVE SESSIONS? 

"A.  THIS IS USUALLY DONE WHEN THE COMMITTEE IS FEARFUL LEST A
WITNESS WILL MENTION THE NAME OF SOMEBODY AGAINST WHOM THERE IS NO
SWORN TESTIMONY, AND IN ORDER TO PREVENT THE NAME OF SOMEBODY BEING
MENTIONED IN PUBLIC THAT WE ARE NOT SURE HAS BEEN ACTIVE IN THE
CONSPIRACY, AT LEAST THAT THERE ISN'T SWORN TESTIMONY TO THAT EFFECT,
WE HAVE AN EXECUTIVE HEARING. 

"Q.  ARE THOSE THE ONLY CIRCUMSTANCES UNDER WHICH EXECUTIVE HEARINGS
ARE HELD? 

"A.  I DON'T KNOW OF ANY OTHER, EXCEPT THAT WHERE WE ARE FEARFUL THAT
TESTIMONY MIGHT BE ADDUCED THAT COULD BE HARMFUL TO THE NATIONAL
DEFENSE.  WE ARE NOT SO SURE ABOUT THE TESTIMONY OF ANY OF THE
WITNESSES." 

BY CONGRESSMAN WALTER'S OWN ADMISSION, THE COMMITTEE HOLDS EXECUTIVE
SESSIONS IN ONLY TWO OF THE THREE INSTANCES SPECIFIED IN RULE IV, I.E.,
WHEN THERE MAY BE INJURY TO THE REPUTATION OF A THIRD PARTY OR INJURY
TO THE NATIONAL SECURITY.  INJURY TO THE WITNESS HIMSELF IS NOT A
FACTOR.  CONSEQUENTLY THE INITIAL COMMITTEE DECISION TO QUESTION YELLIN
PUBLICLY, MADE BEFORE SERVING HIM WITH A SUBPOENA, WAS MADE WITHOUT
FOLLOWING RULE IV. 

SECONDLY, THE COMMITTEE FAILED TO ACT UPON PETITIONER'S EXPRESS
REQUEST FOR AN EXECUTIVE SESSION.  (FN7)  THE STAFF DIRECTOR, WHO
LACKED THE AUTHORITY TO DO SO, ACTED IN THE COMMITTEE'S STEAD.  THAT
PETITIONER ADDRESSED HIS REQUEST TO THE COMMITTEE'S COUNSEL DOES NOT
ALTER THE CASE.  THE COMMITTEE DID NOT SPECIFY IN RULE IV TO WHOM SUCH
REQUESTS SHOULD BE ADDRESSED.  BUT FROM OTHER RULES IT MAY BE INFERRED
THAT THE GENERAL COUNSEL IS AN APPROPRIATE ADDRESSEE.  IN RULE IX, THE
COMMITTEE PERMITS WITNESSES TO FILE PREPARED OR WRITTEN STATEMENTS FOR
THE RECORD.  THE STATEMENTS ARE TO BE SENT TO THE "COUNSEL OF THE
COMMITTEE."  RULE X MAKES PROVISION FOR THIRD PARTIES WHO HAVE BEEN
NAMED AS SUBVERSIVE, FASCIST, COMMUNIST, ETC., IN A PUBLIC HEARING.  A
PERSON, NOTIFIED OF HAVING BEEN NAMED, WHO FEELS THAT HIS REPUTATION
HAS BEEN ADVERSELY AFFECTED IS DIRECTED TO "COMMUNICATE WITH THE
COUNSEL OF THE COMMITTEE."  AS A FOOTNOTE TO THAT RULE, THE COMMITTEE
HAS SAID:  "ALL WITNESSES ARE INVITED AT ANY TIME TO CONFER WITH
COMMITTEE COUNSEL OR INVESTIGATORS FOR THE COMMITTEE PRIOR TO
HEARINGS."  ALSO IT SHOULD BE NOTED THAT THE STAFF DIRECTOR'S
TELEGRAPHED RESPONSE HAD THE MISLEADING APPEARANCE OF AUTHORITY AND
FINALITY.  THE CHAIRMAN OF THE COMMITTEE SHOULD NOT NOW BE ALLOWED TO
SAY THAT HAD PETITIONER DISREGARDED THE RESPONSE HE RECEIVED FROM THE
CHAIRMAN'S STAFF AND INSTEAD RENEWED HIS REQUEST TO THE CHAIRMAN, "THIS
COULD NOT HAVE HAPPENED" - ESPECIALLY WHEN PETITIONER'S COUNSEL TRIED
TO BRING THE MATTER TO THE ATTENTION OF THE COMMITTEE AND WAS BRUSQUELY
CUT OFF. 

THUS IN TWO INSTANCES THE COMMITTEE FAILED TO EXERCISE ITS DISCRETION
ACCORDING TO THE STANDARDS WHICH YELLIN HAD A RIGHT TO HAVE
CONSIDERED.  HIS POSITION IS SIMILAR TO THAT OF THE PETITIONER IN
UNITED STATES EX REL. ACCARDI V. SHAUGHNESSY, 347 U.S. 260.  ACCARDI
HAD BEEN ORDERED DEPORTED.  CONCEDEDLY THE ORDER WAS VALID.  HOWEVER,
ACCARDI APPLIED TO THE BOARD OF IMMIGRATION APPEALS FOR SUSPENSION OF
THE ORDER.  THIS, IN THE DISCRETION OF THE ATTORNEY GENERAL, WAS
PERMITTED BY SEC. 19(C) OF THE IMMIGRATION ACT OF 1917, 39 STAT.  889,
AS AMENDED, 8 U.S.C. (1946 ED., SUPP. V) SEC. 155(C).  (THE SUCCESSOR
TO THAT SECTION IN THE 1952 ACT IS SEC. 244, 66 STAT. 214, 8 U.S.C.
SEC. 1254.)  THE ATTORNEY GENERAL HAD BY REGULATION PERMITTED THE BOARD
OF IMMIGRATION APPEALS TO MAKE FINAL DECISIONS UPON APPLICATIONS FOR
THIS DISCRETIONARY RELIEF, SUBJECT TO CERTAIN EXCEPTIONS NOT INVOLVED
IN ACCARDI'S CASE.  SHORTLY BEFORE PETITIONER APPEALED TO THE BOARD,
THE ATTORNEY GENERAL PUBLISHED A LIST OF "UNSAVORY CHARACTERS,"
INCLUDING PETITIONER, WHO WERE TO BE DEPORTED.  ACCARDI CLAIMED THAT
SINCE THE BOARD KNEW HE WAS ON THE LIST, IT DID NOT EXERCISE THE FULL
DISCRETION THE ATTORNEY GENERAL HAD DELEGATED TO IT.  ITS DECISION WAS
PREDETERMINED.   THIS COURT HELD THAT THE BOARD HAD FAILED TO EXERCISE
ITS DISCRETION THOUGH REQUIRED TO DO SO BY THE ATTORNEY GENERAL'S
REGULATIONS.  ALTHOUGH THE COURT RECOGNIZED THAT ACCARDI MIGHT WELL
LOSE, EVEN IF THE BOARD IGNORED THE ATTORNEY GENERAL'S LIST OF UNSAVORY
CHARACTERS, IT NONETHELESS HELD THAT ACCARDI SHOULD AT LEAST HAVE THE
CHANCE GIVEN HIM BY THE REGULATIONS.    THE SAME RESULT SHOULD OBTAIN
IN THE CASE AT BAR.  YELLIN MIGHT NOT PREVAIL, EVEN IF THE COMMITTEE
TAKES NOTE OF THE RISK OF INJURY TO HIS REPUTATION OR HIS REQUEST FOR
AN EXECUTIVE SESSION.  BUT HE IS AT LEAST ENTITLED TO HAVE THE
COMMITTEE FOLLOW ITS RULES AND GIVE HIM CONSIDERATION ACCORDING TO THE
STANDARDS IT HAS ADOPTED IN RULE IV. 

AT THAT POINT, HOWEVER, THE  SIMILARITY TO ACCARDI'S CASE ENDS. 
PETITIONER HAS NO TRADITIONAL REMEDY, SUCH AS THE WRIT OF HABEAS CORPUS
UPON WHICH ACCARDI RELIED, BY WHICH TO REDRESS THE LOSS OF HIS RIGHTS. 
IF THE COMMITTEE IGNORES HIS REQUEST FOR AN EXECUTIVE SESSION, IT IS
HIGHLY IMPROBABLE THAT PETITIONER COULD OBTAIN AN INJUNCTION AGAINST
THE COMMITTEE THAT WOULD PROTECT HIM FROM PUBLIC EXPOSURE.  SEE PAULING
V. EASTLAND, 109 U.S. APP. D.C. 342, 288 F.2D 126, CERT. DENIED, 364
U.S. 900.  NOR IS THERE AN ADMINISTRATIVE REMEDY FOR PETITIONER TO
PURSUE, SHOULD THE COMMITTEE FAIL TO CONSIDER THE RISK OF INJURY TO HIS
REPUTATION.  TO ANSWER THE QUESTIONS PUT TO HIM PUBLICLY AND THEN SEEK
REDRESS IS NO ANSWER.  FOR ONE THING, HIS TESTIMONY WILL CAUSE THE
INJURY HE SEEKS TO AVOID; UNDER PAIN OF PERJURY, HE CANNOT BY ARTFUL
DISSIMULATION EVADE REVEALING THE INFORMATION HE WISHES TO REMAIN
CONFIDENTIAL.  FOR ANOTHER, HE HAS NO OPPORTUNITY TO RECOVER IN
DAMAGES, U.S. CONST., ART. I, SEC. 6; KILBOURN V. THOMPSON, 103 U.S.
168, 201-205.  CF. TENNEY V. BRANDHOVE, 341 U.S. 367, 377.  EVEN THE
FIFTH AMENDMENT IS NOT SUFFICIENT PROTECTION, SINCE PETITIONER COULD
SAY MANY THINGS WHICH WOULD DISCREDIT HIM WITHOUT SUBJECTING HIMSELF TO
THE RISK OF CRIMINAL PROSECUTION.  THE ONLY AVENUE OPEN IS THAT WHICH
PETITIONER ACTUALLY TOOK.  HE REFUSED TO TESTIFY. 

AS A LAST OBSTACLE, HOWEVER, THE GOVERNMENT ARGUES THAT YELLIN'S
RIGHTS WERE FORFEITED BY HIS FAILURE TO MAKE CLEAR AT THE TIME HE WAS
QUESTIONED THAT HIS REFUSAL TO TESTIFY WAS BASED UPON THE COMMITTEE'S
DEPARTURE FROM RULE IV.  WHATEVER THE MERITS OF THE ARGUMENT MIGHT BE
WHEN IMMEDIATELY APPARENT DEVIATIONS FROM COMMITTEE RULES ARE INVOLVED,
(FN8) IT HAS NO APPLICATION HERE.  YELLIN WAS UNABLE, AT THE TIME OF
HIS HEARING, TO TELL FROM THE ACTIONS OF THE COMMITTEE THAT HIS RIGHTS
HAD BEEN VIOLATED.  SO FAR AS YELLIN KNEW, THE STAFF DIRECTOR ACTED AS
CONGRESSMAN WALTER'S AGENT, ANNOUNCING THE RESULTS OF THE COMMITTEE'S
DELIBERATIONS.  AND SO FAR AS HE KNEW, THE COMMITTEE, WHEN IT INITIALLY
DECIDED TO HOLD A PUBLIC HEARING, DID SO IN ACCORDANCE WITH RULE IV.
IT WAS NOT UNTIL PETITIONER'S TRIAL, WHEN HIS ATTORNEY FOR THE FIRST
TIME HAD AN OPPORTUNITY FOR SEARCHING EXAMINATION, THAT IT BECAME
APPARENT THE COMMITTEE WAS VIOLATING ITS RULES. 

IT MAY BE ASSUMED THAT IF PETITIONER HAD EXPRESSLY RESTED HIS REFUSAL
TO ANSWER UPON A VIOLATION OF RULE IV AND THE COMMITTEE NEVERTHELESS
PROCEEDED, HE WOULD BE ENTITLED TO ACQUITTAL, WERE HE ABLE TO PROVE HIS
DEFENSE.  OTHERWISE, IF YELLIN COULD BE CONVICTED OF CONTEMPT OF
CONGRESS NOTWITHSTANDING THE VIOLATION OF RULE IV, HE WOULD BE DEPRIVED
OF THE ONLY REMEDY HE HAS FOR PROTECTING HIS REPUTATION.  CERTAINLY THE
RIGHTS CREATED BY THE COMMITTEE'S RULES CANNOT BE THAT ILLUSORY. 

OF COURSE, SHOULD YELLIN HAVE REFUSED TO ANSWER IN THE MISTAKEN BUT
GOOD-FAITH BELIEF THAT HIS RIGHTS HAD BEEN VIOLATED, HIS MISTAKE OF LAW
WOULD BE NO DEFENSE.  WATKINS V. UNITED STATES, 354 U.S. 178, 208;
SINCLAIR V. UNITED STATES, 279 U.S. 263, 299.  BUT HE WOULD AT LEAST BE
ENTITLED TO SUBMIT THE CORRECTNESS OF HIS BELIEF TO A COURT OF LAW. 

YELLIN SHOULD BE PERMITTED THE SAME OPPORTUNITY FOR JUDICIAL REVIEW
WHEN HE DISCOVERS AT TRIAL THAT HIS RIGHTS HAVE BEEN VIOLATED.  THIS IS
ESPECIALLY SO WHEN THE COMMITTEE'S PRACTICE LEADS WITNESSES TO
MISPLACED RELIANCE UPON ITS RULES.  WHEN READING A COPY OF THE
COMMITTEE'S RULES, WHICH MUST BE DISTRIBUTED TO EVERY WITNESS UNDER
RULE XVII, THE WITNESS' REASONABLE EXPECTATION IS THAT THE COMMITTEE
ACTUALLY DOES WHAT IT PURPORTS TO DO, ADHERE TO ITS OWN RULES.  TO
FORECLOSE A DEFENSE BASED UPON THOSE RULES, SIMPLY BECAUSE THE WITNESS
WAS DECEIVED BY THE COMMITTEE'S APPEARANCE OF REGULARITY, IS NOT FAIR. 
THE COMMITTEE PREPARED THE GROUNDWORK FOR PROSECUTION IN YELLIN'S CASE
METICULOUSLY.  IT IS NOT TOO EXACTING TO REQUIRE THAT THE COMMITTEE BE
EQUALLY METICULOUS IN OBEYING ITS OWN RULES.  REVERSED. 

FN1  THE CONSTITUTIONAL QUESTIONS UPON WHICH WE NEED NOT PASS ARE
WHETHER THE COMMITTEE'S INVESTIGATION INFRINGED UPON PETITIONER'S
RIGHTS UNDER THE FIRST AMENDMENT AND WHETHER PETITIONER WAS CONVICTED
UNDER AN UNCONSTITUTIONALLY VAGUE STATUTE.  IN ADDITION, WE DO NOT
DISCUSS PETITIONER'S CONTENTION THAT THE TRIAL JUDGE ERRED IN EXCLUDING
EXPERT TESTIMONY ABOUT THE FACTORS WHICH SHOULD BE CONSIDERED IN
DETERMINING PETITIONER'S RIGHTS UNDER THE FIRST AMENDMENT. 

FN2  THE COMMITTEE'S GENERAL COUNSEL HAD ASKED MR. YELLIN A FEW
PRELIMINARY QUESTIONS WHEN MR. RABINOWITZ INTERRUPTED. 

"MR. RABINOWITZ.  MR. COUNSEL (MR. TAVENNER), I WONDER WHETHER IT
WOULD BE POSSIBLE TO READ INTO THE RECORD THE EXCHANGE OF TELEGRAMS
BETWEEN MYSELF AND THE COMMITTEE IN CONNECTION WITH THE WITNESS'S
TESTIMONY.  I WOULD LIKE TO HAVE IT APPEAR IN THE RECORD. 

"THE CHAIRMAN.  WE WILL DECIDE WHETHER IT WILL BE MADE A PART OF THE
RECORD WHEN THE EXECUTIVE SESSION IS HELD.  GO AHEAD. 

"MR. RABINOWITZ.  MR. CHAIRMAN, I SENT THE TELEGRAMS BECAUSE I WANTED
THEM TO APPEAR.  I DO NOT CARE WHETHER THEY APPEAR PUBLICLY OR NOT.  I
DO WANT IT TO APPEAR THAT THAT EXCHANGE OF TELEGRAMS OCCURRED.  I DID
NOT DO IT JUST TO INCREASE THE REVENUE OF THE TELEGRAM COMPANY. 

"THE CHAIRMAN.  WELL, WHATEVER THE REASON WAS, WHETHER IT HAS BEEN
STATED OR OTHERWISE, IT WILL BE CONSIDERED IN EXECUTIVE SESSION. 

"MR. RABINOWITZ.  MAY I STATE: 

"THE CHAIRMAN.  DO NOT BOTHER.  YOU KNOW THE PRIVILEGES GIVEN YOU BY
THIS COMMITTEE.  YOU HAVE APPEARED BEFORE IT OFTEN ENOUGH.  YOU KNOW AS
WELL AS ANYBODY.  GO AHEAD, MR. TAVENNER." 

FN3  CONSIDER, FOR EXAMPLE, THE FOLLOWING TESTIMONY OF CONGRESSMAN
WALTER: 

"Q.  (BY MR. RABINOWITZ)  SO THAT AT THE TIME I RAISED AT THIS
HEARING THE QUESTION OF THE TELEGRAMS, YOU DIDN'T KNOW ANYTHING ABOUT
ANY TELEGRAMS, AND YOU WEREN'T SUFFICIENTLY INTERESTED TO FIND OUT WHAT
I WAS TALKING ABOUT; IS THAT RIGHT? 

"A.  (BY CONGRESSMAN WALTER) WELL, NOT EXACTLY THAT, MR. RABINOWITZ. 
I WAS INTERESTED IN KNOWING.   I KNEW THAT YOU MADE AN APPLICATION FOR
AN EXECUTIVE SESSION. 

"Q.  HOW DID YOU KNOW THAT? 

"A.  WELL, THE TELEGRAM; AT LEAST, THAT'S WHAT YOU STARTED TO TALK
ABOUT. 

"Q.  YOU KNEW IT AT THE TIME OF THE HEARING? 

"A.  NO. ISN'T THAT WHAT YOU STARTED TO TALK ABOUT? 

"Q.  WHEN DID YOU FIRST LEARN THAT I HAD MADE AN APPLICATION FOR AN
EXECUTIVE SESSION? 

"A.  I BELIEVE TODAY.  I NEVER HAD SEEN THESE TELEGRAMS, ACTUALLY.  I
HEARD YOU MENTION THEM, AT LEAST NOW MY RECOLLECTION IS THAT I HEARD
YOU MENTION THEM, BUT I HAVEN'T SEEN THEM UNTIL THIS MINUTE." 

SEE ALSO THE FOLLOWING TESTIMONY: 

"Q.  (BY MR. RABINOWITZ) WELL, WEREN'T YOU INTERESTED IN FINDING OUT
WHAT I WAS TALKING ABOUT? 

"A.  (BY CONGRESSMAN WALTER) I KNEW WHAT YOU WERE TALKING ABOUT.  YOU
WERE TALKING ABOUT A TELEGRAM THAT YOU SAY YOU SENT, AND IT WAS TOO
LATE THEN TO RAISE ANY QUESTION THAT MIGHT HAVE BEEN RAISED BY THE
TELEGRAM." 

LATER CONGRESSMAN WALTER SAID: 

"I THINK THE IMPRESSION I GOT WAS THAT THESE WERE TELEGRAMS THAT WERE
MORE OR LESS IN THE NATURE OF A REQUEST TO POSTPONE, WITHOUT GROUNDS,
OR WHATEVER IT WAS THAT MR. TAVENNER TOLD ME AND THE OTHER MEMBERS OF
THE COMMITTEE; AND I THINK THAT WE WERE JUST NOT IMPRESSED BY IT." 

FN4  THE FOLLOWING OCCURRED DURING MR. RABINOWITZ' DIRECT EXAMINATION
OF CONGRESSMAN WALTER: 

"Q.  WELL, DID YOU, OR DID YOU NOT, TAKE IT UP IN EXECUTIVE SESSION
AS YOU SAID YOU WOULD? 

"A.  I AM NOT CLEAR; I THINK THAT WE PROBABLY DID TALK ABOUT MAKING
IT A PART OF THE RECORD, AND I THINK THE CONCLUSION WAS REACHED THAT IT
WAS NOT PROPERLY A PART OF THE RECORD ALREADY MADE. 

"Q.  DIDN'T YOU TESTIFY, CONGRESSMAN, JUST A FEW MINUTES AGO, WHILE
YOU WERE ON THE STAND, THAT THE FIRST YOU KNEW ABOUT THE CONTENTS OF
THE TELEGRAM WAS JUST NOW, WHEN YOU GOT ON THE WITNESS STAND? 

"A.  THAT'S RIGHT. 

"Q.  SO YOU DISCUSSED THIS WHOLE MATTER IN EXECUTIVE SESSION AFTER
THE GARY HEARINGS, WITHOUT EVEN KNOWING WHAT THE TELEGRAMS SAID? 

"A.  THAT'S ABOUT IT. 

"Q.  AND YOU REACHED THE CONCLUSION NOT TO MAKE THEM A PART OF THE
RECORD WITHOUT EVEN KNOWING WHAT WAS IN THEM? 

"A.  THAT'S RIGHT  ...  ." 

FN5  MR. RABINOWITZ ASKED CONGRESSMAN WALTER: 

"BUT IT WASN'T WORTH THE CHANCE OF CALLING HIM IN EXECUTIVE SESSION,
TO SEE WHAT HIS POSITION WOULD HAVE BEEN? 

"A.  I AM SURE THAT HAD YOU COMMUNICATED THIS WHOLE MATTER TO THE
COMMITTEE BEFORE WE LEFT WASHINGTON SO THAT WE COULD HAVE GIVEN IT DUE
CONSIDERATION - WE WOULD HAVE, AND ALWAYS DO - WE MIGHT HAVE A
DIFFERENT SITUATION TODAY." 

CONGRESSMAN WALTER ALSO SAID HE WAS "SURE THIS COULD NOT HAVE
HAPPENED, HAD YOU (MR.  RABINOWITZ) ADDRESSED YOUR TELEGRAM TO ME." 

NOTE ALSO THE FOLLOWING QUESTION BY MR. RABINOWITZ AND ANSWER BY MR.
TAVENNER: 

"Q.  AND DOES THAT RULE (RULE IV) OPERATE EVER FOR THE PROTECTION OF
A WITNESS WHO IS CALLED? 

"A.  CERTAINLY." 

FN6  ALTHOUGH, FOR REASONS TO BE DEVELOPED LATER, IT DOES NOT APPEAR
THAT THE COMMITTEE WAS FOLLOWING RULE IV IN YELLIN'S CASE, IT SEEMS
CLEAR THAT THE COMMITTEE REALIZED ITS PUBLIC INTERROGATION OF YELLIN
WOULD INJURE HIS REPUTATION.  CONGRESSMAN WALTER TESTIFIED, FOR
EXAMPLE, THAT: 

"A.  ...  THE COMMITTEE ALREADY PASSED ON THE QUESTION OF WHETHER OR
NOT WE WOULD HEAR MR. YELLIN AT A SESSION WHEN THE PURPOSE OF CALLING
HIM WAS DISCUSSED, AND IT WAS DECIDED THEN THAT THE RULE WITH RESPECT
TO AN EXECUTIVE SESSION WAS NOT APPLICABLE BECAUSE THE INVESTIGATOR -
AND I MIGHT SAY IT WAS MR. COLLINS, A FORMER F.B.I. AGENT, WHO
DEVELOPED THIS ENTIRE MATTER, AND WE WERE WILLING TO ACCEPT HIS STORY
WITH RESPECT TO THE PROPOSED TESTIMONY. 

"Q.  AND WHAT WAS HIS STORY? 

"A.  WELL, HIS STORY WAS THAT THE MAN WAS A KNOWN COMMUNIST; THAT HE
HAD BEEN ACTIVE IN THE INTERNATIONAL CONSPIRACY, AND THAT HE HAD
DECEIVED HIS EMPLOYER; AND, FURTHERMORE, HE CAME WITHIN THE CATEGORY OF
THOSE PEOPLE THAT WE WERE EXPERIENCING A GREAT DEAL OF DIFFICULTY IN
FINDING OUT ABOUT WITH RESPECT TO THE COLONIZATION." 

MR. TAVENNER ALSO SAID HE WOULD NOT HAVE RECOMMENDED TO THE COMMITTEE
THAT YELLIN BE HEARD IN EXECUTIVE SESSION "BECAUSE WE KNEW THAT HE WAS
A MEMBER OF THE COMMUNIST PARTY AND HE WAS IN A POSITION TO GIVE THE
COMMITTEE INFORMATION, IF HE WANTED TO." 

FROM THE COMMITTEE'S KNOWLEDGE, WHETHER IT BE RELIABLE OR NOT, THE
COMMITTEE COULD ONLY HAVE CONCLUDED THAT YELLIN'S REPUTATION WOULD
SUFFER.  YET CONGRESSMAN WALTER SAID THIS WAS THE KIND OF CASE IN WHICH
A PUBLIC HEARING WAS APPROPRIATE. 

FN7  ANY SUGGESTION THAT PETITIONER'S REQUEST WAS UNTIMELY CANNOT BE
ACCEPTED.  FOR ONE THING, ONLY 14 DAYS INTERVENED BETWEEN SERVICE OF
THE SUBPOENA UPON PETITIONER AND DELIVERY OF HIS REQUEST TO THE
COMMITTEE'S OFFICES IN WASHINGTON.  ALSO IT IS OF SOME SIGNIFICANCE
THAT THE COMMITTEE DID NOT HOLD ANOTHER WITNESS AT THE GARY HEARINGS,
ONE JOSEPH GYURKO, TO THE STRICT STANDARD OF TIMELINESS NOW URGED. 
GYURKO HAD SENT A TELEGRAM TO THE COMMITTEE'S OFFICES IN WASHINGTON
ABOUT NOON ON SATURDAY, FEBRUARY 8, 1958.  WHEN GYURKO WAS CALLED ON
TUESDAY, FEBRUARY 11, HE WAS GIVEN AN EXECUTIVE HEARING, EVEN THOUGH
CONGRESSMAN WALTER EXPRESSED THE OPINION THAT GYURKO HAD DELIBERATELY
WAITED UNTIL AFTER BUSINESS HOURS ON SATURDAY TO SEND HIS REQUEST. 
SINCE THE COMMITTEE DID NOT EVENHANDEDLY DENY EXECUTIVE SESSIONS TO ALL
WHO MADE SUCH ELEVENTH HOUR REQUESTS, IT IS NOT IN A FAIR POSITION TO
PLEAD THE UNTIMELINESS OF YELLIN'S REQUEST. 

FN8  ALTHOUGH, AS A MATTER OF DUE PROCESS, A WITNESS IS ENTITLED TO
AN EXPLANATION OF THE PERTINENCY OF A QUESTION, IF HE ASKS FOR IT, IT
APPEARS HE MAY LOSE THAT RIGHT IF HE FAILS TO MAKE A TIMELY OBJECTION. 
SEE DEUTCH V. UNITED STATES, 367 U.S. 456, 468-469; BARENBLATT V.
UNITED STATES, 360 U.S. 109, 123-124; WATKINS V. UNITED STATES, 354
U.S. 178, 214-215. 

FOR OTHER INSTANCES IN WHICH A WITNESS' DEFENSE HAS BEEN REJECTED
BECAUSE HE FAILED TO MAKE TIMELY OBJECTIONS, SEE MCPHAUL V. UNITED
STATES, 364 U.S. 372, 379; UNITED STATES V. BRYAN, 339 U.S. 323, 332
333; HARTMAN V. UNITED STATES, 290 F.2D 460, 467. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN
AND MR. JUSTICE STEWART JOIN, DISSENTING. 

PETITIONER STANDS CONVICTED OF HAVING REFUSED, IN VIOLATION OF 2
U.S.C. SEC. 192, (FN1) TO ANSWER FOUR QUESTIONS ASKED HIM BY THE
COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES. 
HE WAS SENTENCED TO ONE YEAR ON EACH COUNT, THE SENTENCES TO RUN
CONCURRENTLY, AND A FINE OF $250.  THE COURT OF APPEALS AFFIRMED
UNANIMOUSLY, 287 F.2D 292. 

PURSUANT TO HOUSE OF REPRESENTATIVES RULES XI (FN2) AND XII, (FN3)
THE COMMITTEE RESOLVED THAT HEARINGS WOULD BE HELD IN GARY, INDIANA, TO
INQUIRE INTO COMMUNIST PARTY ACTIVITIES IN BASIC INDUSTRY.  (FN4)
PETITIONER WAS SUBPOENAED TO APPEAR BEFORE THE COMMITTEE IN GARY ON
FABRUARY 10, 1958.  FOUR DAYS PRIOR TO THE HEARING, PETITIONER'S
COUNSEL SENT A TELEGRAM TO THE COMMITTEE'S COUNSEL REQUESTING THAT
PETITIONER BE QUESTIONED IN EXECUTIVE SESSION IN LIEU OF AN OPEN
SESSION.  THE STAFF DIRECTOR OF THE COMMITTEE RESPONDED THE SAME DAY
AND DENIED THE REQUEST.    PETITIONER APPEARED ON THE APPOINTED DATE
WITH COUNSEL.  THE COMMITTEE CHAIRMAN BEGAN THE PROCEEDINGS BY READING
THE ABOVE-QUOTED RESOLUTION AND BY STATING FURTHER THE PURPOSES OF THE
INQUIRY.  (FN5)  THE FIRST WITNESS, AN ORGANIZER AND HIGH OFFICIAL IN
THE COMMUNIST PARTY FROM 1930 TO 1950, TESTIFIED THAT THE PARTY HAD
BEGUN A POLICY OF INFILTRATING INTO BASIC INDUSTRY, THAT PARTY
"COLONIZERS" WERE SENT TO COORDINATE PARTY WORK IN THESE INDUSTRIES,
INCLUDING THE STEEL INDUSTRY, AND THAT THESE COLONIZERS WERE MAINLY
YOUNG MEN FROM COLLEGES AND UNIVERSITIES.  THESE COLONIZERS, HE
CONTINUED, WOULD MISREPRESENT THEIR BACKGROUNDS IN APPLYING FOR JOBS
AND WOULD CONCEAL THEIR EDUCATIONAL QUALIFICATIONS SO AS TO GAIN JOBS
ALONGSIDE OTHER LESS-EDUCATED WORKERS WITHOUT CASTING SUSPICION ON
THEIR MOTIVES. 

PETITIONER, WHO HAD BEEN PRESENT FOR ALL OF THE FOREGOING, WAS CALLED
AS THE SECOND WITNESS IMMEDIATELY THEREAFTER.  AFTER ANSWERING
PRELIMINARY QUESTIONS AS TO HIS NAME AND ADDRESS AND AFTER HIS COUNSEL
REQUESTED THAT THE EXCHANGE OF TELEGRAMS CONCERNING THE EXECUTIVE
SESSION BE MADE PART OF THE RECORD, PETITIONER WAS ASKED THE FOLLOWING
QUESTION: 

"MR. YELLIN, WHERE DID YOU RESIDE PRIOR TO SEPTEMBER 1957?"  (COUNT
1.) 

AFTER CONFERRING WITH COUNSEL, PETITIONER REFUSED TO ANSWER THE
QUESTION.  HE CITED DECISIONS OF THIS COURT IN WATKINS V. UNITED
STATES, 354 U.S. 178; SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, AND
ASSERTED THAT A CONGRESSIONAL COMMITTEE CANNOT INVESTIGATE INTO AREAS
PROTECTED BY THE FIRST AMENDMENT AND INTO AREAS OF PERSONAL BELIEF AND
CONSCIENCE, THAT THE AUTHORIZING RULE OF THE HOUSE OF REPRESENTATIVES
WAS UNDULY VAGUE RESULTING IN A DENIAL OF DUE PROCESS OF LAW AND THAT
THE QUESTIONS HE WOULD ANSWER WOULD ONLY BE THOSE PERTINENT TO SOME
LEGISLATION.  HE SPECIFICALLY DISCLAIMED RELIANCE ON THE PRIVILEGE
AGAINST SELF-INCRIMINATION.  TO INDICATE THE PERTINENCY OF THE
QUESTION, THE COMMITTEE'S COUNSEL STATED THAT IN ORDER TO LEARN
ANYTHING FROM PETITIONER REGARDING COMMUNIST PARTY ACTIVITIES IN THE
GARY AREAS, IT WAS NECESSARY TO KNOW WHETHER HE WAS THERE OVER A PERIOD
OF TIME.  WHEN DIRECTED TO ANSWER THE QUESTION AFTER THIS STATEMENT,
THE PETITIONER AGAIN REFUSED ON THE GROUNDS ABOVE STATED. 

PETITIONER WAS THEN ASKED TO STATE HIS FORMAL EDUCATION AND WHETHER
HE WAS A STUDENT AT THE COLLEGE OF THE CITY OF NEW YORK, WHICH HE
REFUSED TO DO AND, WHEN DIRECTED TO ANSWER, ADDED:  "MR. TAVENNER, I
WILL REFUSE TO ANSWER THAT QUESTION UNDER THE GROUNDS ALREADY STATED;
BUT IT JUST OCCURS TO ME THAT IF THE COMMITTEE KNOWS ALL THESE THINGS,
I CAN'T SEE THE PURPOSE OR THE PERTINENCY OF ASKING ME WHAT THEY
CONSIDER A KNOWN FACT.  FURTHERMORE, IT KIND OF APPEARS TO ME AS IF
THIS LINE OF QUESTIONING IS MERELY TRYING TO CREATE AN IMPRESSION AND
EXPOSE ME FOR THE SAKE OF MERELY EXPOSING ME AND NOT LEADING TO ANY
VALID LEGISLATIVE PURPOSE."  THE COMMITTEE CHAIRMAN, IN RESPONSE,
STATED: "I WILL ASSURE YOU THAT THAT IS FARTHEST FROM THE INTENTION OF
ANYBODY ON THIS COMMITTEE, AND THIS COMMITTEE HAS NEVER, FOR THE MERE
SAKE OF EXPOSING, ASKED A QUESTION." 

THE COMMITTEE THEREUPON RECEIVED IN EVIDENCE COPIES OF PETITIONER'S
COLLEGE RECORDS SHOWING THAT HE TRANSFERRED FROM THE COLLEGE OF THE
CITY OF NEW YORK TO THE UNIVERSITY OF MICHIGAN IN 1948 AND THAT HE HAD
APPLIED FOR EMPLOYMENT IN A GARY STEEL MILL ON JUNE 23, 1949.  AFTER
CONTINUED UNPRODUCTIVE QUESTIONING, PETITIONER WAS ASKED: 

"WILL YOU TELL THE COMMITTEE, PLEASE, WHETHER OR NOT INCIDENTS CAME
TO YOUR ATTENTION OF THE COLONIZATION OF THE STEEL UNIONS IN GARY BY
THE COMMUNIST PARTY AT ANY TIME PRIOR TO SEPTEMBER 1957?"  (COUNT 2.) 

FOLLOWING ANOTHER REFUSAL TO ANSWER, THE COMMITTEE'S COUNSEL
UNDERTOOK TO EXPLAIN THE PURPOSE OF THE QUESTION.  (FN6)  AGAIN
PETITIONER DECLINED TO REPLY FOR THE REASONS HE HAD GIVEN.  IN A
SIMILAR VEIN, HE REFUSED TO ANSWER A GOOD MANY OTHER QUESTIONS
INCLUDING THE FOLLOWING TWO: 

"WERE YOU A MEMBER OF THE COMMUNIST PARTY ON THE 23D DAY OF JUNE
1949, WHICH IS THE DATE OF APPLICATION FILED IN YOUR NAME FOR
EMPLOYMENT IN GARY?"  (COUNT 3.) 

"WILL YOU TELL THE COMMITTEE WHETHER OR NOT IN 1957 THERE WERE
PRESENT IN ANY OF THE STEEL UNIONS AT GARY, INDIANA, PERSONS WHO WERE
KNOWN TO YOU TO HAVE BEEN COLONIZERS OF THE COMMUNIST PARTY?"  (COUNT
4.) 

PETITIONER WAS EXCUSED AND VARIOUS OTHER WITNESSES WERE CALLED, AMONG
THEM JOSEPH E. LAFLEUR WHO JOINED AND HAD BEEN ACTIVE IN THE COMMUNIST
PARTY FROM 1942 TO 1952 AT THE REQUEST OF THE FEDERAL BUREAU OF
INVESTIGATION AND WHO WORKED IN THE STEEL MILLS IN GARY AT TIMES
PERTINENT TO THIS INQUIRY.  HE IDENTIFIED PETITIONER AS A MEMBER OF THE
COMMUNIST PARTY WHO WITH OTHER YOUNG MEN PARTICIPATED IN ORGANIZING
COMMUNIST PARTY ACTIVITIES IN GARY. 

UPON REPORT AND RECOMMENDATION BY THE COMMITTEE, PETITIONER WAS CITED
FOR CONTEMPT BY THE HOUSE OF REPRESENTATIVES AND WAS INDICTED AND TRIED
FOR REFUSING TO ANSWER THE FOUR QUESTIONS DESIGNATED ABOVE BY COUNT
NUMBERS.  THE SOLE GOVERNMENT WITNESS AT THE TRIAL WAS THE COMMITTEE'S
COUNSEL WHO TESTIFIED THAT THE PURPOSE OF THE HEARINGS WAS TO FIND OUT
HOW SERIOUS THE COMMUNIST PROPAGANDA INFILTRATION WAS IN BASIC
INDUSTRY, PARTICULARLY IN THE STEEL INDUSTRY.  THE COMMITTEE WANTED
INFORMATION ON THIS SUBJECT, HE STATED, TO DECIDE WHETHER TO AMEND
VARIOUS ACTS OF CONGRESS AND, IN FACT, MEMBERS OF THE COMMITTEE DID
INTRODUCE SEVERAL BILLS AROUND THE TIME OF THESE HEARINGS.  (FN7)
PRIOR TO CALLING PETITIONER, HE CONTINUED, THE COMMITTEE HAD
INFORMATION THAT PETITIONER WAS A MEMBER OF THE COMMUNIST PARTY WHILE
AT THE UNIVERSITY OF MICHIGAN, THAT HE HAD APPLIED FOR EMPLOYMENT IN
GARY WITHOUT DISCLOSING HIS COLLEGE EDUCATION AND THAT HE HAD BEEN
EMPLOYED IN THE STEEL INDUSTRY IN GARY. 

THE COMMITTEE COUNSEL EMPHASIZED THAT PETITIONER WAS SUMMONED WITH
THE HOPE THAT HE WOULD COOPERATE AND THAT THE COMMITTEE BELIEVED
PETITIONER HAD INFORMATION ABOUT THE COLONIZATION ACTIVITIES WHICH HAD
NOT BEEN PRESENTED BY ANY OF THE OTHER WITNESSES.  "WE KNOW NOTHING
ABOUT THE ACTUAL ACTIVITIES OF THE COMMUNIST PARTY IN THE STEEL PLANTS
IN INDIANA AS OF THE TIME OF THIS HEARING, OR SHORTLY BEFORE.  MR.
LAFLEUR, WHO DID TESTIFY AT THE GARY HEARINGS, ACCORDING TO MY
RECOLLECTION GOT OUT OF THE COMMUNIST PARTY IN 1950.  THIS WITNESS, MR.
YELLIN, AS TO WHOM WE HAD TESTIMONY BY SEVERAL PEOPLE, HAD BEEN A
MEMBER OF THE COMMUNIST PARTY AT MICHIGAN UNIVERSITY, AND HAD LEFT
THERE AND COME DOWN AND TAKEN EMPLOYMENT IN GARY."  (FN8) 

WITH RESPECT TO THE DENIAL OF THE REQUEST FOR AN EXECUTIVE HEARING,
COMMITTEE COUNSEL TESTIFIED AS FOLLOWS: 

"Q.  (BY MR. RABINOWITZ.)  THEN WHY DID YOU NOT COMPLY WITH THE
REQUEST FOR AN EXECUTIVE SESSION? 

"A.  (BY COMMITTEE COUNSEL.)  ...  WITH THE INFORMATION THAT THE
COMMITTEE HAD REGARDING HIS MEMBERSHIP, I WOULD NOT HAVE RECOMMENDED -
I WILL SAY THIS - I WOULD NOT HAVE RECOMMENDED TO THE COMMITTEE, IF
THEY HAD ASKED, THAT HE BE HEARD IN EXECUTIVE SESSION. 

"Q. WHY NOT? 

"A.  BECAUSE WE KNEW THAT HE WAS A MEMBER OF THE COMMUNIST PARTY AND
HE WAS IN A POSITION TO GIVE THE COMMITTEE INFORMATION, IF HE WANTED
TO. 

"Q.  YOU KNEW HE HAD BEEN A MEMBER OF THE COMMUNIST PARTY? 

"A.  YES. 

"Q.  MANY YEARS BEFORE? 

"A.  YES 

"Q.  YOU DIDN'T KNOW WHETHER HE STILL WAS? 

"A.  IF YOU HAD COME AND TOLD ME, NOW, THIS MAN HAS CONSIDERABLE
INFORMATION THAT HE WANTS TO GIVE, THAT INVOLVES OTHER PEOPLE, AND IT
OUGHT TO BE THOROUGHLY INVESTIGATED BEFORE BEING MADE PUBLIC, I WOULD
CERTAINLY HAVE RECOMMENDED THAT HE BE HEARD IN EXECUTIVE SESSION, BUT
YOU NEVER INDICATED THAT HE WAS WILLING TO DO ANYTHING. 

"Q.  I DID INDICATE THAT HE WANTED AN EXECUTIVE SESSION, THOUGH,
DIDN'T I? 

"A.  I SAY IN THE WAY OF GIVING TESTIMONY. 

"Q.  AND YOU DID NOT FEEL THAT IT WAS ADVISABLE TO CALL AN EXECUTIVE
SESSION FOR THE PURPOSE OF DETERMINING WHETHER HE WAS PREPARED TO GIVE
TESTIMONY, OR NOT? 

"A.  MY RECOLLECTION IS THAT HE WAS SWORN IN AS A WITNESS, AND YOU
WERE SITTING BY HIS SIDE, AND AT THE BEGINNING OF THE TESTIMONY YOU
ASKED THAT WE MAKE A PART OF THE RECORD THE TELEGRAMS WHICH YOU HAD
SENT TO THE COMMITTEE.  YOU DIDN'T OFFER ANY SUGGESTION THEN THAT HE
WOULD GIVE ANY INFORMATION THAT WOULD BE OF SUCH A CHARACTER THAT IT
OUGHT TO BE TAKEN IN EXECUTIVE SESSION TO PROTECT ANYBODY WHILE WE WERE
INVESTIGATING TO SEE WHETHER THE WITNESS WAS TELLING THE TRUTH, OR
NOT." 

REPRESENTATIVE WALTER OF PENNSYLVANIA, THE CHAIRMAN OF THE HOUSE UN
AMERICAN ACTIVITIES COMMITTEE AND OF THE SUBCOMMITTEE WHICH CONDUCTED
THE HEARINGS IN GARY, WAS CALLED BY PETITIONER.  AS FAR AS HE COULD
RECALL, HE DID NOT KNOW OF PETITIONER'S TELEGRAM ASKING FOR AN
EXECUTIVE SESSION UNTIL THE OPENING OF THE HEARING IN GARY.  HE POINTED
OUT THAT THE TELEGRAM WAS NOT ADDRESSED TO HIM AND HE HAD ALREADY
DEPARTED FOR GARY WHEN THE TELEGRAM ARRIVED.  HE STATED THAT NEITHER
THE COMMITTEE COUNSEL NOR THE STAFF DIRECTOR HAD AUTHORITY TO PASS ON A
REQUEST FOR AN EXECUTIVE SESSION AND THAT WHEN THE MATTER OF THE
TELEGRAM WAS RAISED AT THE HEARINGS "IT WAS TOO LATE THEN TO RAISE ANY
QUESTION THAT MIGHT HAVE BEEN RAISED BY THE TELEGRAM."  WHEN ASKED TO
EXPLAIN, HE SAID:  "WELL, THE COMMITTEE ALREADY PASSED ON THE QUESTION
OF WHETHER OR NOT WE WOULD HEAR MR. YELLIN AT A SESSION WHEN THE
PURPOSE OF CALLING HIM WAS DISCUSSED, AND IT WAS DECIDED THEN THAT THE
RULE WITH RESPECT TO AN EXECUTIVE SESSION WAS NOT APPLICABLE BECAUSE
THE INVESTIGATOR - AND I MIGHT SAY IT WAS MR. COLLINS, A FORMER F.B.I.
AGENT, WHO DEVELOPED THIS ENTIRE MATTER, AND WE WERE WILLING TO ACCEPT
HIS STORY WITH RESPECT TO THE PROPOSED TESTIMONY."  MR. COLLINS' STORY,
ACCORDING TO CHAIRMAN WALTER, WAS "THAT THE MAN WAS A KNOWN COMMUNIST;
THAT HE HAD BEEN ACTIVE IN THE INTERNATIONAL CONSPIRACY, AND THAT HE
HAD DECEIVED HIS EMPLOYER; AND, FURTHERMORE, HE CAME WITHIN THE
CATEGORY OF THOSE PEOPLE THAT WE WERE EXPERIENCING A GREAT DEAL OF
DIFFICULTY IN FINDING OUT ABOUT WITH RESPECT TO THE COLONIZATION." 
CONGRESSMAN WALTER FURTHER TESTIFIED THAT PETITIONER'S COUNSEL AT THE
HEARING IN GARY "DIDN'T EVEN THERE INFORM ME AS TO THE CONTENTS OF THE
TELEGRAMS," WHICH HAD NOT BEEN SENT TO HIM, AND ALSO ACKNOWLEDGED THAT
HE HAD INTERRUPTED PETITIONER'S COUNSEL SINCE "IT IS NOT THE PRACTICE
OF THE COMMITTEE TO HEAR COUNSEL, AND THAT THE FUNCTION OF COUNSEL AT
COMMITTEE HEARINGS IS SOLELY TO CONFER WITH WITNESSES." 

WHEN ASKED TO STATE THE CONSIDERATIONS WHICH THE COMMITTEE USES IN
DETERMINING WHETHER TO HOLD EXECUTIVE SESSIONS, CHAIRMAN WALTER
EXPLAINED:  "THIS IS USUALLY DONE WHEN THE COMMITTEE IS FEARFUL LEST A
WITNESS WILL MENTION THE NAME OF SOMEBODY AGAINST WHOM THERE IS NO
SWORN TESTIMONY, AND IN ORDER TO PREVENT THE NAME OF SOMEBODY BEING
MENTIONED IN PUBLIC THAT WE ARE NOT SURE HAS BEEN ACTIVE IN THE
CONSPIRACY, AT LEAST THAT THERE ISN'T SWORN TESTIMONY TO THAT EFFECT,
WE HAVE AN EXECUTIVE HEARING."  HE WAS AWARE THAT MANY WITNESSES
REFUSED TO TESTIFY BUT "IT IS ALWAYS WORTH A CHANCE THAT SOMEBODY WILL
TESTIFY  ...  OCCASIONALLY WE ARE VERY PLEASANTLY SURPRISED AT HAVING
SOMEBODY GIVE US INFORMATION THAT IS OF GREAT VALUE IN THE DRAFTING OF
LEGISLATION." 

PETITIONER'S CHALLENGE TO HIS CONVICTION IS PREDICATED UPON, AMONG
OTHER MATTERS, (FN9) THE CLAIM THAT BY THE RULES OF THE COMMITTEE HE
WAS IMPROPERLY DENIED AN EXECUTIVE SESSION OR AT THE VERY LEAST A GOOD
FAITH CONSIDERATION OF HIS REQUEST FOR ONE. 

                     I. 

SINCE PETITIONER DID NOT REFUSE TO TESTIFY AT THE HEARING ON THE
GROUND THAT IT WAS A PUBLIC RATHER THAN A PRIVATE SESSION, IT IS MY
VIEW THAT HE IS NOT ENTITLED, AT THIS LATE STAGE, TO RELY UPON THE
COMMITTEE'S ALLEGED FAILURE TO APPLY ITS EXECUTIVE SESSION RULE TO
HIM. 

AS THE COURTS HAVE REPEATEDLY HELD, TO BE AVAILABLE AS A DEFENSE IN A
CONTEMPT OF CONGRESS TRIAL, AN OBJECTION MUST HAVE BEEN RELIED UPON AND
ASSERTED BEFORE THE CONGRESSIONAL COMMITTEE.  UNITED STATES V. BRYAN,
339 U.S. 323, 332-333; UNITED STATES V. FLEISCHMAN, 339 U.S. 349, 352;
BARENBLATT V. UNITED STATES, 360 U.S. 109, 123-125; MCPHAUL V. UNITED
STATES, 364 U.S. 372; EISLER V. UNITED STATES, 83 U.S. APP. D.C. 315,
170 F.2D 273; HARTMAN V. UNITED STATES, 290 F.2D 460 (C.A. 9TH CIR.);
UNITED STATES V. KAMIN, 136 F. SUPP. 791.  THIS IS NO TECHNICAL
QUIBBLE, FOR THERE ARE COMPELLING REASONS TO REQUIRE AN OBJECTION TO BE
PURSUED BEFORE THE COMMITTEE.  IT SERVES THE ADMINISTRATION OF JUSTICE
TO HAVE OBJECTIONS SEASONABLY MADE IN ORDER THAT ASSERTED ERRORS MAY BE
CORRECTED AT THE EARLIEST POSSIBLE TIME.  AS IS THE CASE IN PROCEEDINGS
BEFORE A TRIAL COURT, I WIGMORE (3D ED. 1940) SEC. 18, AT 322, THE
OBJECTING PARTY IS REQUIRED TO STATE HIS POSITION AND AFFORD AN
OPPORTUNITY TO ACT UPON HIS CLAIM.  "THE PRACTICE OF WITHHOLDING ALL
OBJECTION UNTIL TIME OF TRIAL IS NOT HELPFUL IN PROTECTING A WITNESS'
RIGHT TO A VALID HEARING.  IT PREVENTS CORRECTION OF ANY ERROR IN THAT
RESPECT AND PROFITS ONLY THE WITNESS WHO SEEKS A CONCEALED DEFECT TO
EXPLOIT."  UNITED STATES V. BRYAN, SUPRA, AT 344 (CONCURRING OPINION). 
ACCORDINGLY, IF POSSIBLE DAMAGE TO PETITIONER'S REPUTATION WAS A GROUND
FOR HIS DEMANDING AN EXECUTIVE SESSION UNDER THE COMMITTEE'S RULES AND
FOR HIS REFUSAL TO ANSWER QUESTIONS PUT TO HIM BY THE COMMITTEE, "A
DECENT RESPECT FOR THE HOUSE OF REPRESENTATIVES  ...  WOULD HAVE
REQUIRED THAT HE STATE HIS REASONS  ...  . TO DENY THE COMMITTEE THE
OPPORTUNITY TO CONSIDER THE OBJECTION OR REMEDY IT IS IN ITSELF A
CONTEMPT OF ITS AUTHORITY AND AN OBSTRUCTION OF ITS PROCESSES."  ID.,
AT 332-333.    THERE IS CERTAINLY NOTHING IN PETITIONER'S TELEGRAM
(FN10) WHICH MAKES OUT A SUBSTANTIAL DEMAND FOR AN EXECUTIVE SESSION. 
IT CONTAINS SIMPLY THE REQUEST ITSELF AND THE UNSUPPORTED CONCLUSION OF
PETITIONER'S COUNSEL, WHO, WITHOUT KNOWING THE EXTENT OR DIRECTION OF
THE INVESTIGATION, INSISTS THAT PETITIONER'S QUESTIONING COULD AS WELL
BE CONDUCTED IN EXECUTIVE SESSION.  THERE IS NO MENTION OF THE
COMMITTEE RULE OR THE PARTICULAR GROUNDS UPON WHICH THE REQUEST WAS
FOUNDED, NOR ARE THERE ANY FACTUAL ASSERTIONS TO BRING TO LIGHT
CONSIDERATIONS WHICH UNDER THE RULE WOULD CALL FOR THE EXECUTIVE
SESSION, SUCH AS FACTS SHOWING POTENTIAL DAMAGE TO HIS REPUTATION. 
INDEED, IT IS DIFFICULT TO UNDERSTAND HOW PETITIONER, AT THE TIME OF
THE REQUEST, COULD HAVE ANTICIPATED ANY GROUND FOR AN EXECUTIVE SESSION
UNDER THE RULE SINCE HE HAD NO WAY OF KNOWING WHAT QUESTIONS WOULD BE
ASKED OF HIM.  IT WAS NOT AT ALL UNLIKELY THAT PETITIONER WOULD BE
CALLED, LIKE ANY OTHER EMPLOYEE WORKING IN THE STEEL MILLS AT THAT TIME
IRRESPECTIVE OF COMMUNIST PARTY AFFILIATION, TO RELATE WHAT INSTANCE OF
INFILTRATION HE OBSERVED WHILE AT WORK.  SEE QUESTION, ANTE, P. 129. 
MOREOVER, THE WIRE WAS DIRECTED TO ONE WITHOUT AUTHORITY TO GRANT OR
DENY AN EXECUTIVE SESSION AND WAS SENT ONLY FOUR DAYS PRIOR TO THE
HEARINGS AND AFTER THE SUBCOMMITTEE HAD DEPARTED FOR GARY. 

AT THE OPENING OF THE HEARING, CHAIRMAN WALTER WAS ENTIRELY
UNFAMILIAR WITH THE CONTENTS OF THE WIRE.  AND THE EXCHANGE WHICH
OCCURRED AT THAT TIME, SET OUT IN THE MARGIN, (FN11) CAN HARDLY BE
CONSTRUED AS A DENIAL OF A POINTED REQUEST FOR AN EXECUTIVE SESSION
BASED UPON POSSIBLE INJURY TO YELLIN'S REPUTATION.  TO BE SURE,
CHAIRMAN WALTER CUT OFF PETITIONER'S COUNSEL IMMEDIATELY, BUT IN
TERMINATING THE DISCUSSION WITH COUNSEL, THE CHAIRMAN WAS SIMPLY MAKING
IT CLEAR THAT COUNSEL'S FUNCTION BEFORE THE COMMITTEE WAS TO CONFER
WITH THE WITNESS AND NOT TO ARGUE WITH THE COMMITTEE, WHICH IS IN
ACCORDANCE WITH THE COMMITTEE'S RULES.  IT WAS FOR THE WITNESS, WITH
THE HELP OF HIS ATTORNEY, TO ANSWER THE QUESTIONS OR TO STATE HIS
GROUNDS FOR REFUSING TO DO SO.  THE CHAIRMAN IN NO WAY INDICATED THAT
THE WITNESS COULD NOT TAKE UP WHERE COUNSEL HAD LEFT OFF. 

AS THE IMMEDIATELY ENSUING QUESTIONING REVEALS, (FN12) PETITIONER HAD
EVERY OPPORTUNITY TO STATE HIS REASONS FOR REFUSING TO ANSWER AND EVERY
OPPORTUNITY TO CONFER WITH COUNSEL.  BUT THE GROUND WHICH PETITIONER
THEN GAVE FOR NOT ANSWERING THE COMMITTEE'S QUESTIONS WERE BASED
PRINCIPALLY UPON THE FIRST AMENDMENT AND WERE NOT GROUNDED UPON RULE IV
A, UPON AN ALLEGED RIGHT TO TESTIFY IN PRIVATE RATHER THAN IN PUBLIC OR
UPON INJURY TO HIS REPUTATION. 

MORE THAN ONCE DURING THE HEARING THE COMMITTEE TOOK PARTICULAR PAINS
TO ASCERTAIN THE PRECISE GROUNDS UPON WHICH PETITIONER WAS REFUSING TO
TESTIFY.  AND ON MORE THAN ONE OCCASION PETITIONER EXPANDED AND
ENLARGED UPON HIS REASONS FOR NOT ANSWERING THE COMMITTEE'S QUESTIONS. 
AT NO TIME, HOWEVER, DID HE MENTION RULE IV-A OR THE MATTER OF AN
EXECUTIVE SESSION OR SPECIFY HOW HIS REPUTATION MIGHT BE INJURED IN A
PUBLIC HEARING.  QUITE THE CONTRARY, WHEN PETITIONER AT ONE POINT
ASSERTED THAT HE COULD NOT "SEE THE PURPOSE OR THE PERTINENCY OF ASKING
ME WHAT THEY CONSIDER A KNOWN FACT  ...  IT KIND OF APPEARS TO ME AS IF
THIS LINE OF QUESTIONING IS MERELY TRYING TO CREATE AN IMPRESSION AND
EXPOSE ME FOR THE SAKE OF MERELY EXPOSING ME AND NOT LEADING TO ANY
VALID LEGISLATIVE PURPOSE," CHAIRMAN WALTER ASSURED HIM THAT THE
COMMITTEE HAD NEVER ASKED QUESTIONS FOR THE MERE SAKE OF EXPOSING AND
THEN INQUIRED:  "AND NOW I WOULD LIKE TO ASK YOU:  WHAT DO YOU MEAN BY
EXPOSING YOU?  EXPOSING YOU TO WHAT?"  PETITIONER'S ANSWER WAS ENTIRELY
UNRESPONSIVE.  HE DID NOT EXPLAIN HOW HE WOULD BE EXPOSED OR INJURED
AND INSTEAD LAUNCHED UPON A DISCUSSION OF ACADEMIC FREEDOM.  AT ANOTHER
POINT, WHEN PETITIONER SAID:  "I DON'T LIKE TO HAVE MY LOYALTY
QUESTIONED OR MY CHARACTER QUESTIONED," CHAIRMAN WALTER SAID:  "ISN'T
THIS THE BEST PLACE TO CLARIFY THE ATMOSPHERE?  IF YOU FEEL AS YOU SAY
YOU DO, AND I AM SURE THAT YOU DO, IS THIS NOT A GREAT OPPORTUNITY TO
ELIMINATE WHATEVER QUESTION MIGHT BE IN ANYBODY'S MIND, PARTICULARLY
MINE, ABOUT YOUR ACTIVITIES?"  PETITIONER'S ANSWER WAS TO DECLINE TO
DISCUSS HIMSELF.  HE DID NOT ACCEPT THE INVITATION TO SAY HOW OR IN
WHAT MANNER HIS REPUTATION WOULD BE UNJUSTLY INJURED BY TESTIFYING IN
PUBLIC. 

EVEN IF THERE COULD BE SIFTED FROM THIS RECORD A BONA FIDE ASSERTION
OF A RIGHT TO AN EXECUTIVE SESSION AND A REFUSAL TO ANSWER BASED UPON
THAT GROUND, PETITIONER CONSISTENTLY RELIED UPON OTHER GROUNDS AS WELL
AND IT WOULD SWEEP AWAY MUCH ESTABLISHED LAW IN THIS COURT TO GIVE HIS
CLAIM TO AN EXECUTIVE SESSION ANY PRACTICAL SIGNIFICANCE.  PETITIONER'S
CENTRAL THESIS AND REPEATED REASONS FOR NOT RESPONDING TO QUESTIONS PUT
TO HIM BY THE COMMITTEE WERE BASED UPON THE FIRST AMENDMENT.  THESE
GROUNDS WERE FIRMLY AND CLEARLY PUT AND PETITIONER IN NO WAY INDICATED
THAT AN EXECUTIVE SESSION WOULD HAVE MADE ANY DIFFERENCE IN HIS
WILLINGNESS TO ANSWER QUESTIONS. 

THE COURT CONSIDERED A SIMILAR SITUATION IN UNITED STATES V. BRYAN,
339 U.S. 323, IN CONNECTION WITH THE SAME CONGRESSIONAL COMMITTEE. 
THERE, THE WITNESS AT HER TRIAL FOR CONTEMPT ASSERTED THAT HER FAILURE
TO PRODUCE RECORDS AT THE HEARING WAS EXCUSABLE BECAUSE THERE WAS NOT A
QUORUM PRESENT, BUT THAT GROUND WAS HELD UNAVAILABLE BECAUSE SHE HAD
RELIED UPON OTHER GROUNDS AT THE HEARING.  "TESTIMONIAL COMPULSION IS
AN INTENSELY PRACTICAL MATTER  ...  .  THE FACT THAT THE ALLEGED DEFECT
UPON WHICH RESPONDENT NOW INSISTS IS, IN HER OWN ESTIMATION, AN
IMMATERIAL ONE, IS CLEARLY SHOWN BY HER RELIANCE BEFORE THE COMMITTEE
UPON OTHER GROUNDS FOR FAILING TO PRODUCE THE RECORDS.  SHE DOES NOT
DENY, AND THE TRANSCRIPT OF THE HEARING MAKES IT PERFECTLY CLEAR, THAT
SHE WOULD NOT HAVE COMPLIED WITH THE SUBPOENAS NO MATTER HOW THE
COMMITTEE HAD BEEN CONSTITUTED AT THE TIME."  EXPLAINING AN ANALOGOUS
CASE, HALE V. HENKEL, 201 U.S. 43, THE BRYAN COURT NOTED THAT THE
WITNESS IN HALE, "HAVING REFUSED COMPLIANCE FOR OTHER REASONS WHICH THE
LOWER COURT COULD NOT REMEDY  ... COULD NOT LATER COMPLAIN OF ITS
REFUSAL TO DO A MEANINGLESS ACT - TO GRANT HIM ADDITIONAL TIME TO
GATHER PAPERS WHICH HE HAD INDICATED HE WOULD NOT PRODUCE IN ANY
EVENT.  HERE RESPONDENT BRYAN WOULD HAVE THE COMMITTEE GO THROUGH THE
EMPTY FORMALITY OF SUMMONING A QUORUM OF ITS MEMBERS TO GATHER IN
SOLEMN CONCLAVE TO HEAR HER REFUSE TO HONOR ITS DEMANDS."  UNITED
STATES V. BRYAN, SUPRA, AT 334.  (FN13) 

PETITIONER WAS REPRESENTED AT THE HEARING BEFORE THE COMMITTEE BY
EXPERIENCED COUNSEL, THE SAME COUNSEL WHO REPRESENTED THE WITNESS IN
THE BRYAN CASE.  IT IS DIFFICULT TO BELIEVE THAT IF PETITIONER WAS IN
FACT REFUSING TO ANSWER BECAUSE HE WAS CALLED AT A PUBLIC HEARING
INSTEAD OF AN EXECUTIVE SESSION, EXPRESS RELIANCE UPON THE COMMITTEE
RULE WOULD NOT APPEAR IN THE RECORD ALONG WITH THE SUPPORTING REASONS. 
RATHER, IT IS FAR MORE LIKELY THAT PETITIONER PREFERRED TO INCLUDE
AMONG HIS SEVERAL REASONS FOR REFUSING TO ANSWER THE GROUND THAT THE
COMMITTEE WAS SEEKING ONLY TO EXPOSE HIM FOR EXPOSURE'S SAKE.  SEE
WATKINS, V. UNITED STATES, 354 U.S. 178, 187, 200; SWEEZY V. NEW
HAMPSHIRE, 354 U.S. 234; NAACP V. ALABAMA, 357 U.S. 449.  IT WOULD HAVE
WEAKENED IF NOT DESTROYED THAT GROUND IF PETITIONER BASED HIS REFUSAL
TO TESTIFY ON THE EXECUTIVE SESSION GROUND AND HAD BEEN GRANTED A
PRIVATE HEARING.  QUITE PLAINLY PETITIONER WAS SEEKING TO KEEP HIS
CONSTITUTIONAL GROUNDS INTACT. 

IT IS NO ANSWER TO SAY THAT THIS RULE OF DILIGENCE CAN BE RELAXED
HERE BECAUSE PETITIONER WAS NOT AWARE UNTIL THE TRIAL THAT THE
COMMITTEE MIGHT HAVE IGNORED ITS OWN RULES IN DELIBERATING UPON WHETHER
OR NOT TO QUESTION HIM IN PRIVATE.  THE POINT IS THAT IF PETITIONER HAS
ANY STANDING TO COMPLAIN ABOUT THE MANNER IN WHICH THE COMMITTEE ACTED,
IT MUST BE BECAUSE HE ASSERTED AT THE COMMITTEE HEARING, WHEN MATTERS
WERE STILL OPEN TO DIRECT EXPLANATION AND CORRECTION, THAT HE WOULD
SUFFER UNJUST DAMAGE TO HIS REPUTATION BY A PUBLIC SESSION AND THAT HE
HAD A RIGHT UNDER THE RULES OF THE COMMITTEE TO HAVE HIS REPUTATIONAL
INTEREST CONSIDERED.  COMPARE WATKINS V. UNITED STATES, 354 U.S. 178,
AND SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, WHERE THE SPECIFIC GROUNDS
SUSTAINED BY THE COURT WERE VIGOROUSLY ASSERTED AT THE HEARING.  THE
COMMITTEE IS OBLIGED TO MAKE CLEAR THE DEMANDS WHICH IT MAKES UPON THE
WITNESS.  QUINN V. UNITED STATES, 349 U.S. 155.  THERE SURELY MUST BE A
RECIPROCAL OBLIGATION ON THE PART OF THE WITNESS TO ADVISE THE
COMMITTEE OF THE PRECISE GROUNDS FOR HIS SILENCE. 

                                         II. 

IN ANY EVENT, HOWEVER, THE COMMITTEE DID NOT, AS PETITIONER CONTENDS,
FAIL TO APPLY ITS EXECUTIVE SESSION RULE TO HIM. 

ARTICLE I, SEC. 5, CL. 2, OF THE CONSTITUTION PROVIDES THAT "EACH
HOUSE MAY DETERMINE THE RULES OF ITS PROCEEDINGS."  THE ROLE THAT THE
COURTS PLAY IN ADJUDICATING QUESTIONS INVOLVING THE RULES OF EITHER
HOUSE MUST OF NECESSITY BE A LIMITED ONE, FOR THE MANNER IN WHICH A
HOUSE OR COMMITTEE OF CONGRESS CHOOSES TO RUN ITS BUSINESS ORDINARILY
RAISES NO JUSTICIABLE CONTROVERSY.  FIELD V. CLARK, 143 U.S. 649;
UNITED STATES V. BALLIN, 144 U.S. 1; LESER V. GARNETT, 258 U.S. 130,
137; CF. FLINT V. STONE TRACY CO., 220 U.S. 107, 143.  HOWEVER, WHEN
THE APPLICATION OR CONSTRUCTION OF A RULE DIRECTLY AFFECTS PERSONS
OTHER THAN MEMBERS OF THE HOUSE, "THE QUESTION PRESENTED IS OF
NECESSITY A JUDICIAL ONE."  UNITED STATES V. SMITH, 286 U.S. 6, 33;
CHRISTOFFEL V. UNITED STATES, 338 U.S. 84.  EVEN WHEN A JUDICIAL
CONTROVERSY IS PRESENTED, THE FUNCTION OF THE COURTS IS A NARROW ONE. 
"WITH THE COURTS THE QUESTION IS ONLY ONE OF POWER.  THE CONSTITUTION
EMPOWERS EACH HOUSE TO DETERMINE ITS RULES OF PROCEEDINGS.  IT MAY NOT
BY ITS RULES IGNORE CONSTITUTIONAL RESTRAINTS OR VIOLATE FUNDAMENTAL
RIGHTS, AND THERE SHOULD BE A REASONABLE RELATION BETWEEN THE MODE OR
METHOD OF PROCEEDING ESTABLISHED BY THE RULE AND THE RESULT WHICH IS
SOUGHT TO BE ATTAINED.  BUT WITHIN THESE LIMITATIONS ALL MATTERS OF
METHOD ARE OPEN TO THE DETERMINATION OF THE HOUSE, AND IT IS NO
IMPEACHMENT OF THE RULE TO SAY THAT SOME OTHER WAY WOULD BE BETTER,
MORE ACCURATE OR EVEN MORE JUST."  UNITED STATES V. BALLIN, SUPRA, AT
5; UNITED STATES V. SMITH, SUPRA. 

THE COMMITTEE, PURSUANT TO ENABLING RESOLUTIONS OF THE HOUSE OF
REPRESENTATIVES IN EXERCISE OF THAT RULE-MAKING POWER, PROMULGATED ITS
RULES OF PROCEDURE, NUMBER IV-A OF WHICH IS IN ISSUE HERE: 

"IV - EXECUTIVE AND PUBLIC HEARINGS: 

"A - EXECUTIVE: "(1)  IF A MAJORITY OF THE COMMITTEE OR SUBCOMMITTEE,
DULY APPOINTED AS PROVIDED BY THE RULES OF THE HOUSE OF
REPRESENTATIVES, BELIEVES THAT THE INTERROGATION OF A WITNESS IN A
PUBLIC HEARING MIGHT ENDANGER NATIONAL SECURITY OR UNJUSTLY INJURE HIS
REPUTATION, OR THE REPUTATION OF OTHER INDIVIDUALS, THE COMMITTEE SHALL
INTERROGATE SUCH WITNESS IN AN EXECUTIVE SESSION FOR THE PURPOSE OF
DETERMINING THE NECESSITY OR ADVISABILITY OF CONDUCTING SUCH
INTERROGATION THEREAFTER IN A PUBLIC HEARING. 

"(2)  ATTENDANCE AT EXECUTIVE SESSIONS SHALL BE LIMITED TO MEMBERS OF
THE COMMITTEE, ITS STAFF, AND OTHER PERSONS WHOSE PRESENCE IS
REQUESTED, OR CONSENTED TO BY THE COMMITTEE. 

"(3)  ALL TESTIMONY TAKEN IN EXECUTIVE SESSIONS SHALL BE KEPT SECRET
AND SHALL NOT BE RELEASED OR USED IN PUBLIC SESSIONS WITHOUT THE
APPROVAL OF A MAJORITY OF THE COMMITTEE." 

PETITIONER'S CLAIM IS THAT IN DECIDING TO HOLD A PUBLIC HEARING IN
HIS CASE RATHER THAN TO TAKE HIS TESTIMONY IN EXECUTIVE SESSION, THE
COMMITTEE FAILED TO GIVE HIM THE FULL BENEFIT OF THE RULE BECAUSE IT
DID NOT CONSIDER WHETHER "INTERROGATION OF A WITNESS IN A PUBLIC
HEARING MIGHT  ... UNJUSTLY INJURE HIS REPUTATION" AND INSTEAD
CONSIDERED ONLY INJURY TO THE REPUTATION OF OTHER INDIVIDUALS.  I FIND
THIS CONTENTION WHOLLY WITHOUT SUBSTANCE. 

MY UNDERSTANDING OF THE TESTIMONY IN THE TRIAL COURT IS THAT WHEN A
WITNESS BEFORE THE COMMITTEE MAY IMPLICATE THIRD PERSONS ABOUT WHOM THE
COMMITTEE DOES NOT HAVE RELIABLE INFORMATION, AN EXECUTIVE SESSION IS
HELD.  IN TERMS OF RULE IV-A AN EXECUTIVE SESSION IS AFFORDED IN THESE
CIRCUMSTANCES BECAUSE AN OPEN HEARING "MIGHT  ...  UNJUSTLY INJURE  ...
THE REPUTATION OF OTHER INDIVIDUALS."  IT IS OTHERWISE AND A CLOSED
SESSION IS NOT REQUIRED WHEN THE COMMITTEE HAS ADEQUATE AND RELIABLE
INFORMATION ABOUT THE OTHER INDIVIDUALS THE WITNESS MAY MENTION, FOR
THEIR REPUTATION WOULD NOT THEN BE "UNJUSTLY INJURED" BY REVEALING
VERIFIED INFORMATION IN A PUBLIC SESSION. 

THE SAME CONSIDERATIONS APPLY TO THE WITNESS HIMSELF.  "CERTAINLY,"
AS MR. TAVENNER TESTIFIED, THE RULE OPERATES FOR THE BENEFIT OF THE
PARTY TESTIFYING.  SEE OPINION OF THE COURT, ANTE, P. 116, N. 5.
ACCORDING TO BOTH MR. TAVENNER AND MR. WALTER, YELLIN WAS DENIED AN
EXECUTIVE SESSION UNDER THE RULE BECAUSE HE WAS A KNOWN COMMUNIST AND
THE COMMITTEE HAD SWORN TESTIMONY TO THIS EFFECT.  THE COMMITTEE
BELIEVED THE INFORMATION FURNISHED BY ITS INVESTIGATORS ABOUT YELLIN TO
BE RELIABLE.  MEASURED AGAINST THE PLAIN TERMS OF RULE IV-A, THESE
FACTS DID NOT CALL FOR A CLOSED SESSION.  THERE WAS SWORN TESTIMONY OR
OTHER PROOF TO BACK UP THE QUESTIONS TO BE ASKED.  THERE WOULD BE NO
"UNJUST INJURY" TO THE REPUTATION OF THE WITNESS YELLIN.  PUBLICLY
INTERROGATING A WITNESS IF THE COMMITTEE'S FOUNDATION FOR ITS QUESTIONS
RESTS ONLY UPON SUSPICION OR RUMOR FALLS WITHIN THE AREA OF UNJUST
INJURY TO REPUTATION.  BUT PUBLIC REVELATION OF THE TRUTH DOES NOT. 

THE FOREGOING APPEARS TO ME TO BE THE CONSTRUCTION WHICH THE
COMMITTEE PLACED UPON ITS OWN RULES AND AS SO CONSTRUED IT WAS APPLIED
HERE.  IT IS TRUE THAT IN STATING GENERALLY THE CONSIDERATIONS ENTERING
INTO THE HOLDING OF AN EXECUTIVE SESSION, MR. WALTER SAID THAT PRIVATE
HEARINGS ARE "USUALLY" GRANTED WHEN THIRD PERSONS MAY BE MENTIONED
AGAINST WHOM THERE IS NO SWORN TESTIMONY AND THAT HE DID NOT KNOW OF
ANY OTHER CONSIDERATIONS.  BUT THIS GENERAL REMARK IS, AT BEST,
AMBIGUOUS AND IS SUPPLEMENTED BY HIS PREVIOUS STATEMENTS CONCERNING THE
COMMITTEE'S DECISION TO HOLD A PUBLIC HEARING IN PETITIONER'S OWN
CASE.  THAT DECISION, ACCORDING TO HIS TESTIMONY, PLAINLY WAS BASED
UPON THE COMMITTEE'S APPRAISAL OF ITS INFORMATION ABOUT PETITIONER. 
YELLIN WAS NOT DENIED AN EXECUTIVE SESSION BECAUSE THERE WAS NO
INDICATION OF INJURY TO THIRD PERSONS.  THE CONSIDERATIONS UNDERLYING
THE DENIAL WERE PECULIAR TO YELLIN HIMSELF.  IN THE COMMITTEE'S VIEW,
ITS INFORMATION ABOUT HIM WAS RELIABLE AND ADEQUATE, HIS REPUTATION
WOULD NOT BE UNJUSTLY INJURED AND HE WAS THEREFORE NOT ENTITLED TO A
CLOSED SESSION.  THE COMMITTEE DID NOT, AS PETITIONER URGES, FAIL TO
CONSIDER ANY ELEMENT OF ITS RULE WHEN IT DETERMINED TO INTERROGATE HIM
IN A PUBLIC HEARING. 

WHILE THE TESTIMONY IS REASONABLY CLEAR AS TO THE COMMITTEE'S
CONSTRUCTION AND APPLICATION OF ITS OWN RULE, IF THERE WERE ANY DOUBT
ABOUT THE MATTER IT IS NOT OUR PLACE TO RESOLVE EVERY DOUBT AGAINST THE
COMMITTEE.  "THE PRESUMPTION IN FAVOR OF REGULARITY, WHICH APPLIES TO
THE PROCEEDINGS OF COURTS, CANNOT BE DENIED TO THE PROCEEDINGS OF THE
HOUSES OF CONGRESS, WHEN ACTING UPON MATTERS WITHIN THEIR
CONSTITUTIONAL AUTHORITY."  BARRY V. UNITED STATES EX REL. CUNNINGHAM,
279 U.S. 597, 619.  SEE ALSO MCGRAIN V. DAUGHERTY, 273 U.S. 135, 179
180; IN RE CHAPMAN, 166 U.S. 661, 670.  CF. TENNEY V. BRANDHOVE, 341
U.S. 367, 378.  DUE REGARD FOR THE LEGISLATIVE BRANCH OF THE GOVERNMENT
REQUIRES A CONSIDERABLY CLEARER SHOWING THAN WHAT IS OFFERED HERE THAT
THE LONG-TIME CHAIRMAN OF THE COMMITTEE DID NOT KNOW HIS OWN RULES WHEN
HE TESTIFIED THAT THE COMMITTEE HAD CONSIDERED THE REQUEST FOR AN
EXECUTIVE SESSION AND DETERMINED THAT THE RULE DID NOT REQUIRE IT. 

THE COMMITTEE'S CONSTRUCTION OF ITS OWN RULES IS ENTITLED TO GREAT
WEIGHT.  UNITED STATES V. SMITH, 286 U.S. 6; CHRISTOFFEL V. UNITED
STATES, 338 U.S. 84.  "TO PLACE UPON THE STANDING RULES OF THE CONGRESS
A CONSTRUCTION DIFFERENT FROM THAT ADOPTED BY THE CONGRESS  ...  IS A
SERIOUS AND DELICATE EXERCISE OF JUDICIAL POWER."  UNITED STATES V.
SMITH, SUPRA, AT 48.  HERE, THE COMMITTEE UNDER ITS RULE DOES NOT DEEM
IT TO BE UNJUST INJURY WHERE THE TRUTH ABOUT THE WITNESS OR A THIRD
PERSON IS BROUGHT OUT IN A PUBLIC HEARING IN PURSUANCE OF A VALID
LEGISLATIVE PURPOSE.  THIS READING OF RULE IV-A IS NOT BIZARRE,
IRRATIONAL OR SO OUT OF KEEPING WITH HISTORY AS TO PERMIT A COURT TO
IGNORE IT BECAUSE IT WOULD PREFER A DIFFERENT CONSTRUCTION OR AN
ENTIRELY DIFFERENT RULE.  THE HOUSE OF REPRESENTATIVES HAS ITS OWN RULE
CONCERNING EXECUTIVE SESSIONS, RULE XIM), WHICH, ACCORDING TO THE
TESTIMONY AT PETITIONER'S TRIAL AND AS CONTRASTED WITH THE RULE OF THE
COMMITTEE, HAS BEEN CONSTRUED BY THE HOUSE TO AFFORD NO PROTECTION AT
ALL TO THE WITNESS HIMSELF.  MOREOVER, SEC. 103 OF THE REVISED
STATUTES, AS AMENDED, 2 U.S.C. SEC. 193 PROVIDES THAT "NO WITNESS IS
PRIVILEGED TO REFUSE TO TESTIFY TO ANY FACT  ...  UPON THE GROUND THAT
HIS TESTIMONY TO SUCH FACT  ...  MAY TEND TO DISGRACE HIM OR OTHERWISE
RENDER HIM INFAMOUS."  WHATEVER OTHER PROBLEMS MAY INHERE IN THE RULE
OF THE COMMITTEE, OF THE HOUSE OR IN THE STATUTE, THE COMMITTEE'S
CONSTRUCTION OF ITS OWN RULE HERALDS NO BREAK WITH THE TRADITION OF THE
HOUSE OR OF CONGRESS IN AFFORDING PRIVACY TO A WITNESS WHEN THE HEARING
MAY BE A FISHING EXPEDITION OR AN INQUIRY INTO MERE RUMOR BUT
PERMITTING A PUBLIC SESSION WHEN THE MATTER TO BE BROUGHT OUT IS BOTH
PERTINENT TO A LEGISLATIVE PURPOSE AND NOTHING BUT THE UNVARNISHED
TRUTH.  "THE CONSTITUTION COMMITS TO THE HOUSE THE POWER TO MAKE ITS
OWN RULES; AND IT IS NOT THE FUNCTION OF THE COURT TO SAY THAT ANOTHER
RULE WOULD BE BETTER."  UNITED STATES V. SMITH, SUPRA, AT 48. 

NOR IS THERE SUBSTANCE IN PETITIONER'S CLAIM THAT THE COMMITTEE
ERRONEOUSLY FAILED TO ACT UPON THE TELEGRAPHIC REQUEST.  UNDER THE
RULE, ALL THAT IS REQUIRED IS THAT THE COMMITTEE CONSIDER WHETHER TO
HOLD THE SESSION IN AN EXECUTIVE HEARING.  CF. UNITED STATES EX REL.
ACCARDI V. SHAUGHNESSY, 347 U.S. 260.  HERE, THE COMMITTEE ON ITS OWN
MOTION, EVEN BEFORE THE TELEGRAM WAS TRANSMITTED, HAD GIVEN FULL
CONSIDERATION TO WHETHER PETITIONER SHOULD BE QUESTIONED IN PRIVATE. 
WHATEVER WOULD HAVE BEEN THE PREJUDICE RESULTING FROM DISREGARDING THE
TELEGRAM AND TOTALLY FAILING TO CONSIDER WHETHER THE QUESTIONING SHOULD
BE CONDUCTED IN SECRET, THERE IS NO ROOM FOR COMPLAINT ON THIS RECORD
SINCE THE COMMITTEE HAD ALREADY DELIBERATED ON THE MATTER.  ONCE IT
MADE ITS ASSESSMENT, AS IT DID HERE, IT DISCHARGED ANY OBLIGATION WHICH
ITS OWN RULES IMPOSED. 

III. 

IF "TESTIMONIAL COMPULSION IS AN INTENSELY PRACTICAL MATTER" AND
"EVERY EXEMPTION FROM TESTIFYING OR PRODUCING RECORDS THUS PRESUPPOSES
A VERY REAL INTEREST TO BE PROTECTED," UNITED STATES V. BRYAN, 339
U.S., AT 332, MUCH OF THIS DISCUSSION IS REALLY BESIDE THE POINT. 
PETITIONER WAS CONVICTED FOR REFUSING TO ANSWER FOUR QUESTIONS, EACH
REFUSAL CONSTITUTING A SEPARATE COUNT IN THE INDICTMENT.  HE WAS FOUND
GUILTY ON ALL FOUR COUNTS, HIS SENTENCES TO RUN CONCURRENTLY.  HIS
CONVICTION MUST STAND IF HIS REFUSAL TO ANSWER ANY ONE OF THE QUESTIONS
WAS UNJUSTIFIED.  CLAASSEN V. UNITED STATES, 142 U.S. 140, 147;
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 85; BARENBLATT V. UNITED
STATES, 360 U.S. 109, 115.  THE FIRST QUESTION WHICH PETITIONER REFUSED
TO ANSWER WAS:  "MR. YELLIN, WHERE DID YOU RESIDE PRIOR TO SEPTEMBER
1957?"  PETITIONER REFUSED TO RESPOND BECAUSE TO HIM IT WAS OBVIOUS
WHERE "THIS LINE OF QUESTIONING WILL PROBABLY LEAD" AND, EXPRESSLY
DISCLAIMING FIFTH AMENDMENT PROTECTION, DECLINED TO ANSWER ON FIRST
AMENDMENT GROUNDS. 

PETITIONER'S CONVICTION ON COUNT 1 SHOULD STAND QUITE INDEPENDENTLY
AS AGAINST THE CLAIM TO AN EXECUTIVE SESSION FOR IT IS DIFFICULT INDEED
TO ASCRIBE ANY REALITY TO THE VIEW THAT PETITIONER MAY NOT BE
COMPELLED, IN A PUBLIC HEARING HELD BY A LEGISLATIVE COMMITTEE IN
PURSUIT OF INFORMATION PERTINENT TO A LEGISLATIVE PURPOSE, TO ANSWER,
OR TO REFUSE TO ANSWER, A QUESTION ABOUT HIS RESIDENCE PRIOR TO 1957
BECAUSE OF DANGER TO HIS REPUTATION.  OVERSIGHT OF CONGRESSIONAL
COMMITTEE PROCEDURES SHOULD NOT BE BASED UPON SUCH FRIVOLOUS GROUNDS. 

IN MY VIEW, PETITIONER'S EXECUTIVE SESSION ARGUMENT IS TOTALLY
WITHOUT SUPPORT, AND THEREFORE I DISSENT. 

FN1  "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 JOINT
COMMITTEE ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO
HOUSES OF CONGRESS, 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 JAIL FOR NOT LESS THAN
ONE MONTH NOR MORE THAN TWELVE MONTHS." 

FN2  "RULE XI.  POWERS AND DUTIES OF COMMITTEES. 

     *         *         *         *         * 

"(Q)(1)  COMMITTEE ON UN-AMERICAN ACTIVITIES. 

"(A)  UN-AMERICAN ACTIVITIES. 

"(2)  THE COMMITTEE ON UN-AMERICAN ACTIVITIES, AS A WHOLE OR BY
SUBCOMMITTEE, IS AUTHORIZED TO MAKE FROM TIME TO TIME INVESTIGATIONS OF
(I) THE EXTENT, CHARACTER, AND OBJECTS OF UN-AMERICAN PROPAGANDA
ACTIVITIES IN THE UNITED STATES, (II) THE DIFFUSION WITHIN THE UNITED
STATES OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT IS INSTIGATED FROM
FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN AND ATTACKS THE PRINCIPLE OF
THE FORM OF GOVERNMENT AS GUARANTEED BY OUR CONSTITUTION, AND (III) ALL
OTHER QUESTIONS IN RELATION THERETO THAT WOULD AID CONGRESS IN ANY
NECESSARY REMEDIAL LEGISLATION. 

"THE COMMITTEE ON UN-AMERICAN ACTIVITIES SHALL REPORT TO THE HOUSE
(OR TO THE CLERK OF THE HOUSE IF THE HOUSE IS NOT IN SESSION) THE
RESULTS OF ANY SUCH INVESTIGATION, TOGETHER WITH SUCH RECOMMENDATIONS
AS IT DEEMS ADVISABLE. 

"FOR THE PURPOSE OF ANY SUCH INVESTIGATION, THE COMMITTEE ON UN
AMERICAN ACTIVITIES, OR ANY SUBCOMMITTEE THEREOF, IS AUTHORIZED TO SIT
AND ACT AT SUCH TIMES AND PLACES WITHIN THE UNITED STATES, WHETHER OR
NOT THE HOUSE IS SITTING, HAS RECESSED, OR HAS ADJOURNED, TO HOLD SUCH
HEARINGS, TO REQUIRE THE ATTENDANCE OF SUCH WITNESSES AND THE
PRODUCTION OF SUCH BOOKS, PAPERS, AND DOCUMENTS, AND TO TAKE SUCH
TESTIMONY, AS IT DEEMS NECESSARY.  SUBPENAS MAY BE ISSUED UNDER THE
SIGNATURE OF THE CHAIRMAN OF THE COMMITTEE OR ANY SUBCOMMITTEE, OR BY
ANY MEMBER DESIGNATED BY ANY SUCH CHAIRMAN, AND MAY BE SERVED BY ANY
PERSON DESIGNATED BY ANY SUCH CHAIRMAN OR MEMBER." 

FN3  "RULE XII.  LEGISLATIVE OVERSIGHT BY STANDING COMMITTEES. 

"SEC. 136.  TO ASSIST THE CONGRESS IN APPRAISING THE ADMINISTRATION
OF THE LAWS AND IN DEVELOPING SUCH AMENDMENTS OR RELATED LEGISLATION AS
IT MAY DEEM NECESSARY, EACH STANDING COMMITTEE OF THE SENATE AND THE
HOUSE OF REPRESENTATIVES SHALL EXERCISE CONTINUOUS WATCHFULNESS OF THE
EXECUTION BY THE ADMINISTRATIVE AGENCIES CONCERNED OF ANY LAWS, THE
SUBJECT MATTER OF WHICH IS WITHIN THE JURISDICTION OF SUCH COMMITTEE;
AND, FOR THAT PURPOSE, SHALL STUDY ALL PERTINENT REPORTS AND DATA
SUBMITTED TO THE CONGRESS BY THE AGENCIES IN THE EXECUTIVE BRANCH OF
THE GOVERNMENT." 

FN4  THE COMMITTEE'S RESOLUTION ENUMERATED THESE AREAS OF INQUIRY: 

"1.  THE EXTENT, CHARACTER, AND OBJECTS OF COMMUNIST INFILTRATION AND
COMMUNIST PARTY PROPAGANDA ACTIVITIES IN BASIC INDUSTRY IN THE GARY,
INDIANA, AREA, THE LEGISLATIVE PURPOSE BEING TO OBTAIN ADDITIONAL
INFORMATION FOR USE BY THE COMMITTEE IN ITS CONSIDERATION OF SECTION 16
OF H.R. 9352, RELATING TO THE PROPOSED AMENDMENT OF SECTION 4 OF THE
COMMUNIST CONTROL ACT OF 1954, PRESCRIBING A PENALTY FOR KNOWINGLY AND
WILLFULLY BECOMING OR REMAINING A MEMBER OF THE COMMUNIST PARTY WITH
KNOWLEDGE OF THE PURPOSE OR OBJECTIVE THEREOF, AND FOR THE ADDITIONAL
LEGISLATIVE PURPOSE OF ADDING TO THE COMMITTEE'S OVERALL KNOWLEDGE ON
THE SUBJECT, SO THAT CONGRESS MAY BE KEPT INFORMED AND THUS PREPARED TO
ENACT REMEDIAL LEGISLATION IN THE NATIONAL DEFENSE AND FOR INTERNAL
SECURITY WHEN AND IF THE EXIGENCIES OF THE SITUATION REQUIRE IT. 

"2.  EXECUTION BY ADMINISTRATIVE AGENCIES CONCERNED OF PUBLIC LAW
637, OF THE 83D CONGRESS KNOWN AS THE 'COMMUNIST CONTROL ACT OF 1954,'
RELATING TO THE ELIGIBILITY TO EXERCISE THE RIGHTS AND PRIVILEGES
PROVIDED UNDER THE NATIONAL LABOR RELATIONS ACT OF LABOR ORGANIZATIONS
DETERMINED BY THE SUBVERSIVE ACTIVITIES CONTROL BOARD TO BE COMMUNIST
INFILTRATED ORGANIZATIONS.  THE LEGISLATIVE PURPOSE IS TO ASSIST
CONGRESS IN APPRAISING THE ADMINISTRATION OF THE COMMUNIST CONTROL ACT
OF 1954 AND TO ENACT SUCH AMENDMENTS THERETO AS THE EXIGENCIES OF THE
SITUATION  REQUIRE. 

"3.  ANY OTHER MATTER WITHIN THE JURISDICTION OF THE COMMITTEE WHICH
IT OR ANY SUBCOMMITTEE THEREOF, APPOINTED TO CONDUCT THIS HEARING, MAY
DESIGNATE." 

FN5  "UNDER THE PROVISIONS OF PUBLIC LAW 601, 79TH CONGRESS, THE
CONGRESS HAS PLACED UPON THIS COMMITTEE CERTAIN LEGISLATIVE AND
INVESTIGATIVE DUTIES AND, IN ADDITION, THE DUTY OF EXERCISING
CONTINUOUS WATCHFULNESS OVER THE EXECUTION OF ANY LAWS, THE SUBJECT
MATTER OF WHICH IS WITHIN THE JURISDICTION OF THIS COMMITTEE. 
ACCORDINGLY, WITHIN THE FRAMEWORK OF THIS BROAD JURISDICTION AND
OBJECTIVES, THIS SUBCOMMITTEE OF THE COMMITTEE ON UN-AMERICAN
ACTIVITIES IS HERE IN GARY FOR THE PURPOSE OF RECEIVING TESTIMONY
CONCERNING COMMUNIST TECHNIQUES AND TACTICS OF INFILTRATION AND THE
EXTENT, CHARACTER, AND OBJECTS OF COMMUNIST PARTY PROPAGANDA ACTIVITIES
IN BASIC INDUSTRIES.  THE IMPORTANCE OF THIS AREA OF INQUIRY FROM THE
STANDPOINT OF NATIONAL SECURITY, CANNOT BE OVEREMPHASIZED.  WITHOUT
THIS INFORMATION, IT WOULD BE IMPOSSIBLE FOR THE COMMITTEE TO CARRY OUT
ITS LEGISLATIVE DUTIES AS REQUIRED OF IT BY THE CONGRESS. 

"IN RESPONSE TO THE MANDATE FROM THE CONGRESS TO KEEP CONSTANT
SURVEILLANCE OVER EXISTING SECURITY LEGISLATION, THE COMMITTEE IS
CONSTANTLY SURVEYING THE OPERATIONS OF THE INTERNAL SECURITY ACT OF
1950, THE FOREIGN AGENTS REGISTRATION ACT, THE VARIOUS ESPIONAGE
STATUTES, THE COMMUNIST CONTROL ACT OF 1954, AND SIMILAR LAWS FOR THE
PURPOSE OF KEEPING CONGRESS INFORMED OF THE MANNER IN WHICH LAWS ARE
BEING ADMINISTERED AND FOR THE PURPOSE OF RECOMMENDING ANY NEEDED
LEGISLATIVE AMENDMENTS.  THIS MANDATE WILL BE CARRIED OUT AT THIS
HEARING. 

"THE COMMITTEE RECENTLY FORMULATED AN OMNIBUS SECURITY BILL, H.R.
9352, WHICH REPRESENTS THE MOST COMPREHENSIVE EFFORT EVER MADE TO DEAL
WITH ALL PROBLEMS IN THE FIELD OF INTERNAL SECURITY.  THIS BILL
COMBINES NUMEROUS PROPOSALS FOR EMPOWERING THE GOVERNMENT TO COMBAT THE
VARIOUS ASPECTS OF THE COMMUNIST CONSPIRACY WHICH ARE NOT DEALT WITH
ADEQUATELY IN OUR PRESENT LAWS.  IT IS THE HOPE OF THE COMMITTEE THAT
FACTUAL INFORMATION OBTAINED AT THIS HEARING WILL BE OF ASSISTANCE IN
THE CONSIDERATION OF THE NUMEROUS PROVISIONS OF THIS BILL. 

"THE COMMITTEE IS ESPECIALLY DESIROUS OF OBTAINING ADDITIONAL
INFORMATION FOR USE IN ITS CONSIDERATION OF SECTION 16 OF H.R. 9352,
RELATING TO THE PROPOSED AMENDMENT OF SECTION 4 OF THE COMMUNIST
CONTROL ACT OF 1954, PRESCRIBING A PENALTY FOR KNOWINGLY AND WILLINGLY
BECOMING OR REMAINING A MEMBER OF THE COMMUNIST PARTY WITH KNOWLEDGE OF
THE PURPOSE OR OBJECTIVE THEREOF." 

FN6  "IT HAS BEEN TESTIFIED HERE THAT COLONIZATION OF YOUNG MEN IN
THE MIDDLE OF THEIR EDUCATIONAL COURSES IN INDUSTRY WAS A DEEP-SEATED
PLAN OF THE COMMUNIST PARTY TO STRENGTHEN ITSELF WITHIN BASIC
INDUSTRY.  THE CHAIRMAN'S OPENING STATEMENT INDICATED THAT THE
ACTIVITIES OF THE COMMUNIST PARTY WITHIN BASIC INDUSTRIES WAS THE
SUBJECT OF INQUIRY HERE.            *         *         *         *
* 

"THE STATEMENT WAS MADE HERE OF THE PRACTICE OF THE COMMUNIST PARTY
IN COLONIZING INDUSTRY AT FLINT, MICHIGAN; AT THE UNIVERSITY OF
COLORADO, WHICH IS AT FORT COLLINS, COLORADO, WHERE YOU NOW RESIDE; AND
OTHER PLACES. 

"IN ORDER TO UNDERSTAND THE FULL TACTICS OF THE COMMUNIST PARTY IN
ITS OPERATIONS HERE IN GARY, IT IS NECESSARY THE COMMITTEE UNDERSTAND
FULLY THE EXTENT OF SUCH PRACTICES, THE FULL PURPOSES OF IT, AND THE
METHODS BY WHICH IT IS PUT INTO EFFECT.  THAT IS THE CONNECTIVE
REASONING OF THE COMMITTEE IN ASKING THE QUESTION."    FN7  H.R. 2369,
86TH CONG., 1ST SESS., SPONSORED BY CONGRESSMAN WALTER, TO REDEFINE
"ORGANIZE" AS USED IN THE SMITH ACT; H.R. 3693, 86TH CONG., 1ST SESS.,
INTRODUCED BY CONGRESSMAN SCHERER, TO PERMIT THE FEDERAL GOVERNMENT TO
GUARD STRATEGIC DEFENSE FACILITIES AGAINST ESPIONAGE, SABOTAGE AND
OTHER SUBVERSION; H.R. 9352, 85TH CONG., 1ST SESS., AN OMNIBUS BILL TO
AMEND THE INTERNAL SECURITY ACT OF 1950; H.R. 8121, 86TH CONG., 2D
SESS., A BILL TO PROVIDE A SECURITY PROGRAM FOR DEFENSE CONTRACTORS AND
THEIR EMPLOYEES. 

FN8  "Q.  (BY MR. RABINOWITZ)  ...  WILL YOU STATE WHAT INFORMATION
YOU HAD, AND WHAT ADDITIONAL INFORMATION YOU HOPED TO GET? 

  *         *         *         *         * 

"A.  (BY COMMITTEE COUNSEL.)  AS I WAS STATING, THE COMMITTEE HAD
SWORN TESTIMONY BY TWO PERSONS THAT YELLIN WAS A MEMBER OF THE
COMMUNIST PARTY AT MICHIGAN UNIVERSITY.  WE HAD EVIDENCE THAT HE HAD
BEEN TRANSFERRED THERE FROM NEW YORK CITY; THAT HE CAME FROM MICHIGAN
UNIVERSITY DOWN HERE, DOWN TO GARY, INDIANA, AND THERE BECAME EMPLOYED
IN THE STEEL PLANTS. 

     *         *  *         *         * 

"WE KNEW, FROM THE STATEMENT MADE, BY THE INFORMATION OBTAINED FROM
MR. LAFLEUR, THAT MR. YELLIN HAD BEEN ACTIVE IN COMMUNIST PARTY
ACTIVITIES WHILE EMPLOYED BY STEEL, THE STEEL COMPANIES IN GARY, AND HE
SO TESTIFIED LATER, AND IT IS IN THE RECORD HERE. 

"NOW, WITH THAT INFORMATION RELATING TO MR. YELLIN, WE FELT CERTAIN
THAT MR. YELLIN WAS IN A POSITION, IF HE WOULD DO SO, TO TELL THIS
COMMITTEE A GREAT MANY THINGS REGARDING THE PLAN OF THE COMMUNIST PARTY
TO INFILTRATE THE STEEL INDUSTRY HERE, AND TO BUILDING UP THE COMMUNIST
PARTY FROM ITS GRASS ROOTS LEVEL, AND JUST WHAT THE COMMUNIST PARTY
PLANS WERE TO MAKE THESE BRIGHT YOUNG MEN LEADERS WHO DID THIS THING OF
COLONIZING.  HE COULD HAVE TOLD US THOSE THINGS, FROM THE POSITION THAT
HE WAS IN, IF WE WERE CORRECT ABOUT HIS POSITION, HAD HE BEEN WILLING
TO DO SO. 

"BUT NOT A SINGLE WITNESS WHO HAS BEEN IDENTIFIED - WHO HAS BEEN
IDENTIFIED - AS A COLONIZER IN ANY OF THE PLACES THAT YOU HAVE
MENTIONED, THAT I CAN RECALL, HAS EVER ADMITTED IT, OR EVER TESTIFIED
THAT HE HAD BEEN A COLONIZER." 

FN9  PETITIONER ALSO RAISES THE FOLLOWING QUESTIONS: 

(1)  DID THE PUBLIC INTEREST IN SECURING ANSWERS TO THE QUESTIONS
WHICH WERE THE SUBJECT OF THE INDICTMENT OUTWEIGH THE PETITIONER'S
RIGHTS UNDER THE FIRST AMENDMENT AND THE PUBLIC INTEREST IN THE
PROTECTION OF THE FREE EXCHANGE OF IDEAS? 

(2)  WAS THE INVESTIGATION CARRIED ON BY THE COMMITTEE IN VIOLATION
OF THE CONSTITUTION AND PARTICULARLY OF THE FIRST AMENDMENT THEREOF? 

(3)  DID THE TRIAL COURT ERR IN EXCLUDING CERTAIN PROFFERED EVIDENCE
ON THE ISSUE OF THE BALANCING OF PUBLIC RIGHTS AND PRIVATE INTERESTS? 

(4)  WAS THE STATUTE UNDER WHICH PETITIONER WAS CONVICTED
UNCONSTITUTIONALLY VAGUE? 

(5)  WERE THE QUESTIONS WHICH FORMED THE BASIS OF COUNTS 2 AND 4 TOO
VAGUE TO SUPPORT A VALID INDICTMENT? 

(6)  IN THE CIRCUMSTANCES HERE SHOWN, WAS THERE ANY PROPER
LEGISLATIVE PURPOSE IN ISSUING A SUBPOENA TO PETITIONER? 

FN10  THE TELEGRAM READ:  "UNDERSIGNED REPRESENTS EDWARD YELLIN AND
NICHOLAS BUSIC.  ON THEIR BEHALF I REQUEST EXECUTIVE SESSION IN LIEU OF
OPEN SESSION.  TESTIMONY NEEDED FOR LEGISLATIVE PURPOSES CAN BE SECURED
IN EXECUTIVE SESSION WITHOUT EXPOSING WITNESSES TO PUBLICITY.  VICTOR
RABINOWITZ." 

FN11  "MR. TAVENNER.  WILL YOU STATE YOUR NAME PLEASE, SIR. 

"MR. YELLIN.  EDWARD YELLIN. 

"MR. TAVENNER.  WILL COUNSEL ACCOMPANYING THE WITNESS PLEASE IDENTIFY
HIMSELF FOR THE RECORD? 

"MR. RABINOWITZ.  VICTOR RABINOWITZ, NEW YORK. 

"MR. TAVENNER.  WHERE AND WHEN WERE YOU BORN, MR. YELLIN? 

"MR. YELLIN.  JULY 2, 1927, BRONX, NEW YORK. 

"MR. TAVENNER.  WHERE DO YOU NOW RESIDE? 

"MR. YELLIN.  FORT COLLINS, COLORADO. 

"MR. SCHERER.  I CANNOT HEAR THE WITNESS. 

"THE CHAIRMAN.  WHERE? 

"MR. YELLIN.  FORT COLLINS, COLORADO. 

"MR. TAVENNER.  HOW LONG HAVE YOU LIVED AT FORT COLLINS, COLORADO? 

"MR. YELLIN.  SINCE JUST ABOUT SEPTEMBER OF '57. 

"MR. TAVENNER.  '50? 

"MR. YELLIN.  SEPTEMBER '57. 

"MR. TAVENNER.  WHERE DID YOU RESIDE PRIOR TO: 

"MR. RABINOWITZ.  MR. COUNSEL, I WONDER WHETHER IT WOULD BE POSSIBLE
TO READ INTO THE RECORD THE EXCHANGE OF TELEGRAMS BETWEEN MYSELF AND
THE COMMITTEE IN CONNECTION WITH THE WITNESS'S TESTIMONY.  I WOULD LIKE
TO HAVE IT APPEAR IN THE RECORD. 

"THE CHAIRMAN.  WE WILL DECIDE WHETHER IT WILL BE MADE A PART OF THE
RECORD WHEN THE EXECUTIVE SESSION IS HELD.  GO AHEAD. 

"MR. RABINOWITZ.  MR. CHAIRMAN, I SENT THE TELEGRAMS BECAUSE I WANTED
THEM TO APPEAR.  I DO NOT CARE WHETHER THEY APPEAR PUBLICLY OR NOT.  I
DO WANT IT TO APPEAR THAT THAT EXCHANGE OF TELEGRAMS OCCURRED.  I DID
NOT DO IT JUST TO INCREASE THE REVENUE OF THE TELEGRAM COMPANY. 

"THE CHAIRMAN.  WELL, WHATEVER THE REASON WAS, WHETHER IT HAS BEEN
STATED OR OTHERWISE, IT WILL BE CONSIDERED IN EXECUTIVE SESSION. 

"MR. RABINOWITZ.  MAY I STATE: 

"THE CHAIRMAN.  DO NOT BOTHER.  YOU KNOW THE PRIVILEGES GIVEN YOU BY
THIS COMMITTEE.  YOU HAVE APPEARED BEFORE IT OFTEN ENOUGH.  YOU KNOW AS
WELL AS ANYBODY. 

"GO AHEAD, MR. TAVENNER." 

FN12  "MR. TAVENNER.  MR. YELLIN, WHERE DID YOU RESIDE PRIOR TO
SEPTEMBER 1957? 

"(THE WITNESS CONFERRED WITH HIS COUNSEL.) 

"MR. YELLIN.  MR. TAVENNER, IS THAT RIGHT? 

"MR. TAVENNER.  YES. 

"MR. YELLIN.  MR. TAVENNER, IF I MAY I WOULD LIKE TO SAY JUST A FEW
WORDS BEFORE I ANSWER THAT QUESTION TO STATE MY GROUNDS AS TO WHAT MY
POSITION WILL BE ON ANSWERING QUESTIONS. 

"THE CHAIRMAN.  JUST ANSWER THIS QUESTION, NOT YOUR GROUNDS FOR
ANSWERING QUESTIONS THAT HAVE NOT BEEN ASKED. 

"MR. YELLIN.  THEN LET ME SAY THAT I FEEL THAT THIS QUESTION AND THIS
LINE OF QUESTIONING WILL PROBABLY LEAD INTO CERTAIN AREAS OF MY FREEDOM
OF BELIEFS, AND I FEEL THAT I WOULD LIKE TO SAY JUST A FEW WORDS AS TO
WHY I WOULD NOT CARE TO ANSWER THIS QUESTION. 

"THE CHAIRMAN.  IT IS NOT THE CASE OF WHETHER YOU CARE TO ANSWER OR
NOT.  IT IS A QUESTION OF DO YOU OR DO YOU NOT ANSWER THE QUESTION. 

"(THE WITNESS CONFERRED WITH HIS COUNSEL.) 

"MR. YELLIN.  MR. CONGRESSMAN, LET ME PUT IT THIS WAY THEN:  I WILL
REFUSE TO ANSWER THAT QUESTION, AND I WOULD LIKE THE PRIVILEGE: 

"THE CHAIRMAN.  WHAT IS THE QUESTION, MR. TAVENNER? 

"MR. TAVENNER.  THE QUESTION WAS WHERE THE WITNESS LIVED PRIOR TO
SEPTEMBER 1957. 

"THE CHAIRMAN.  AND YOU FEEL HONESTLY THAT IF YOU ANSWER THE QUESTION
OF WHERE YOU LIVED BEFORE SEPTEMBER OF LAST YEAR, YOU MIGHT BE
CONFRONTED WITH A CRIMINAL PROSECUTION, IS THAT IT? 

"MR. YELLIN.  NO. I DIDN'T SAY THAT. 

"THE CHAIRMAN.  YOU DID NOT SAY THAT, BUT IS THAT NOT WHAT YOU MEAN? 

"MR. YELLIN.  MAY I SAY WHAT MY OBJECTIONS ARE?  IF I CAN SAY WHAT
THEY ARE: 

"THE CHAIRMAN.  GO AHEAD." 

FN13  SEE ALSO LOUBRIEL V. UNITED STATES, 9 F.2D 807, 808: 

"THE QUESTION IS NO LESS THAN WHETHER COURTS MUST PUT UP WITH SHIFTS
AND SUBTERFUGES IN THE PLACE OF TRUTH AND ARE POWERLESS TO PUT AN END
TO TRIFLING.  THEY WOULD PROVE THEMSELVES INCAPABLE OF DEALING WITH
ACTUALITIES IF IT WERE SO, FOR THERE IS NO SURER SIGN OF A FEEBLE AND
FUMBLING LAW THAN TIMIDITY IN PENETRATING THE FORM TO THE SUBSTANCE." 
..END :










UNITED STATES V. MUNIZ 374 U.S. 150 


NO. 464.  ARGUED APRIL 22-23, 1963 - DECIDED JUNE 17, 1963 - 305 F.2D
253, 285, AFFIRMED. 


A FEDERAL PRISONER CAN SUE UNDER THE FEDERAL TORT CLAIMS ACT TO
RECOVER DAMAGES FROM THE UNITED STATES FOR PERSONAL INJURIES SUSTAINED
DURING CONFINEMENT IN A FEDERAL PRISON AND RESULTING FROM THE
NEGLIGENCE OF A GOVERNMENT EMPLOYEE.  FERES V. UNITED STATES, 340 U.S.
135, DISTINGUISHED.  PP. 150-166. 

UNITED STATES V. MUNIZ ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER A PERSON CAN SUE UNDER THE
FEDERAL TORT CLAIMS ACT (FN1) TO RECOVER DAMAGES FROM THE UNITED STATES
GOVERNMENT FOR PERSONAL INJURIES SUSTAINED DURING CONFINEMENT IN A
FEDERAL PRISON, BY REASON OF THE NEGLIGENCE OF A GOVERNMENT EMPLOYEE. 
FOR REASONS TO BE DEVELOPED BELOW, WE HOLD THAT SUCH SUITS ARE WITHIN
THE PURVIEW OF THE ACT. 

THIS LITIGATION, BROUGHT HERE BY THE GOVERNMENT AS A SINGLE CASE,
ARISES FROM TWO SEPARATE SUITS FOR PERSONAL INJURIES BROUGHT BY
RESPONDENTS HENRY WINSTON AND CARLOS MUNIZ IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.  BOTH SOUGHT
DAMAGES FOR PERSONAL INJURIES SUFFERED WHILE THEY WERE CONFINED IN
FEDERAL PRISONS.  THE DISTRICT JUDGE GRANTED THE GOVERNMENT'S MOTIONS
TO DISMISS IN BOTH CASES ON THE GROUND THAT SUCH SUITS WERE NOT
PERMITTED BY THE FEDERAL TORT CLAIMS ACT.  THE COURT OF APPEALS FOR THE
SECOND CIRCUIT, SITTING EN BANC, REVERSED, FOUR JUDGES DISSENTING.  305
F.2D 264, 287.  (FN2)  BECAUSE THE DECISION BELOW INVOLVES AN IMPORTANT
QUESTION IN THE CONSTRUCTION OF THE FEDERAL TORT CLAIMS ACT AND BECAUSE
TWO COURTS OF APPEALS HAD PREVIOUSLY REACHED A CONTRARY RESULT, (FN3)
WE GRANTED CERTIORARI.  371 U.S. 919. 

WINSTON ALLEGED THAT IN APRIL 1959, WHILE HE WAS CONFINED IN THE
UNITED STATES PENITENTIARY AT TERRE HAUTE, INDIANA, HE BEGAN SUFFERING
DIZZINESS, LOSS OF BALANCE, AND DIFFICULTY WITH HIS VISION.   UPON
WINSTON'S INITIAL COMPLAINT, THE PRISON MEDICAL OFFICER'S DIAGNOSIS WAS
BORDERLINE HYPERTENSION; THE TREATMENT, A REDUCTION IN WEIGHT. 
WINSTON'S SYMPTOMS NEVERTHELESS RECURRED WITH INCREASING SEVERITY OVER
THE NEXT NINE MONTHS, HE WAS UNABLE TO KEEP HIS BALANCE AND FELL
FREQUENTLY.  HE ALSO BEGAN TO SUFFER PERIODIC LOSS OF VISION.  DESPITE
REPEATED COMPLAINTS TO THE PRISON OFFICERS, WINSTON WAS GIVEN NO
FURTHER TREATMENT, EXCEPT SOME DRAMAMINE FOR HIS DIZZINESS.  IN JANUARY
1960, WINSTON'S ATTORNEY BECAME ALARMED BY HIS CONDITION AND HAD HIM
EXAMINED BY A CONSULTING PHYSICIAN.  IN FEBRUARY 1960, AN OPERATION
SUCCESSFULLY REMOVED THE BENIGN BRAIN TUMOR WHICH HAD CAUSED WINSTON'S
DIFFICULTIES, BUT HIS SIGHT COULD NOT BE SAVED.  WINSTON ALLEGED THAT
THE NEGLIGENCE OF THE PRISON EMPLOYEES WAS RESPONSIBLE FOR THE DELAY IN
DIAGNOSIS AND REMOVAL OF THE TUMOR AND CAUSED HIS BLINDNESS. 

RESPONDENT MUNIZ ALLEGED THAT HE WAS, IN AUGUST 1959, A PRISONER IN A
FEDERAL CORRECTIONAL INSTITUTION IN DANBURY, CONNECTICUT.  ON THE
AFTERNOON OF AUGUST 24, MUNIZ WAS OUTSIDE ONE OF THE INSTITUTION'S
DORMITORIES WHEN HE WAS STRUCK BY AN INMATE, AND THEN PURSUED BY 12
INMATES INTO ANOTHER DORMITORY.  A PRISON GUARD, APPARENTLY CHOOSING TO
CONFINE THE ALTERCATION INSTEAD OF INTERCEDING, LOCKED THE DORMITORY. 
THE 12 INMATES WHO HAD CHASED MUNIZ INTO THE DORMITORY SET UPON HIM,
BEATING HIM WITH CHAIRS AND STICKS UNTIL HE WAS UNCONSCIOUS.  MUNIZ
SUSTAINED A FRACTURED SKULL AND ULTIMATELY LOST THE VISION OF HIS RIGHT
EYE.  HE ALLEGED THAT THE PRISON OFFICIALS WERE NEGLIGENT IN FAILING TO
PROVIDE ENOUGH GUARDS TO PREVENT THE ASSAULTS LEADING TO HIS INJURIES
AND IN LETTING PRISONERS, SOME OF WHOM WERE MENTALLY ABNORMAL,
INTERMINGLE WITHOUT ADEQUATE SUPERVISION. 

WHETHER RESPONDENTS ARE ENTITLED TO MAINTAIN THESE SUITS REQUIRES US
TO DETERMINE WHAT CONGRESS INTENDED WHEN IT PASSED THE FEDERAL TORT
CLAIMS ACT IN 1946.  THIS QUESTION WOULD NOT APPEAR AT FIRST GLANCE TO
POSE SERIOUS DIFFICULTY.  CONGRESS USED NEITHER INTRICATE NOR
RESTRICTIVE LANGUAGE IN WAIVING THE GOVERNMENT'S SOVEREIGN IMMUNITY. 
IT GAVE THE DISTRICT COURTS JURISDICTION: 

"OF CIVIL ACTIONS ON CLAIMS AGAINST THE UNITED STATES, FOR MONEY
DAMAGES, ...  FOR 

...  PERSONAL INJURY  ...  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."  28 U.S.C. SEC. 1346(B). 

THE ACT ALSO PROVIDES THAT 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."  28 U.S.C. SEC. 2674.  CONGRESS QUALIFIED THIS GENERAL
WAIVER OF IMMUNITY IN 28 U.S.C. SEC. 2680 BY EXCEPTING FROM THE ACT
CLAIMS ARISING FROM CERTAIN GOVERNMENT ACTIVITY, SUCH AS TRANSMISSION
OF POSTAL MATTER, ASSESSMENT OF TAXES, IMPOSITION OF A QUARANTINE, OR
OPERATION OF THE PANAMA CANAL.  NONE OF THE EXCEPTIONS PRECLUDES SUIT
AGAINST THE GOVERNMENT BY FEDERAL PRISONERS FOR INJURIES SUSTAINED IN
PRISON.  SO FAR AS IT APPEARS FROM THE FACE OF THE ACT, CONGRESS HAS
CLEARLY CONSENTED TO SUITS SUCH AS THOSE INVOLVED IN THE CASE AT BAR. 
WHETHER A CLAIM COULD BE MADE OUT WOULD DEPEND UPON WHETHER A PRIVATE
INDIVIDUAL UNDER LIKE CIRCUMSTANCES WOULD BE LIABLE UNDER STATE LAW,
BUT PRISONERS ARE AT LEAST NOT PROHIBITED FROM SUING.  SINCE A NUMBER
OF LOWER COURTS HAVE NEVERTHELESS REACHED A CONTRARY CONCLUSION, (FN4)
LARGELY IN RELIANCE UPON OUR DECISION IN FERES V. UNITED STATES, 340
U.S. 135, WE DEEM IT APPROPRIATE TO MAKE A MORE DETAILED INVESTIGATION
INTO THE INTENT OF CONGRESS. 

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE ACT REINFORCES OUR
CONCLUSION THAT CONGRESS INTENDED TO PERMIT SUCH SUITS.  FOR A NUMBER
OF REASONS, IT APPEARS THAT CONGRESS WAS WELL AWARE OF CLAIMS BY
FEDERAL PRISONERS AND THAT ITS FAILURE TO EXCLUDE THEM FROM THE
PROVISIONS OF THE ACT IN 28 U.S.C. SEC. 2680 WAS DELIBERATE.  FIRST,
THE FEDERAL TORT CLAIMS ACT, AS PART OF THE LEGISLATIVE REORGANIZATION
ACT OF 1946, (FN5) WAS DESIGNED NOT ONLY TO AVOID INJUSTICE TO THOSE
HAVING MERITORIOUS CLAIMS HITHERTO BARRED BY SOVEREIGN IMMUNITY, BUT TO
ELIMINATE THE BURDEN ON CONGRESS OF INVESTIGATING AND PASSING UPON
PRIVATE BILLS SEEKING INDIVIDUAL RELIEF.  SEE DALEHITE V. UNITED
STATES, 346 U.S. 15, 24-25; FERES V. UNITED STATES, 340 U.S. 135, 139
140.  (FN6)  THE TASK OF SCREENING THESE BILLS WAS SUBSTANTIAL.  SEE,
E.G., 74 CONG. REC. 6868.  PRIVATE CLAIM BILLS INTRODUCED IN THE SIXTY
EIGHTH THROUGH THE SEVENTY-EIGHTH CONGRESSES AVERAGED 2,000 OR MORE PER
CONGRESS, ROUGHLY 20% OF WHICH WERE ENACTED.  H.R. REP. NO. 1287, 79TH
CONG., 1ST SESS.  AMONG THE PRIVATE CLAIM BILLS WERE A NUMBER SUBMITTED
ON BEHALF OF FEDERAL PRISONERS, OF WHICH, BETWEEN 1935 AND 1946,
CONGRESS PASSED 21.  (FN7)  THE MUCH LARGER NUMBER OF PRIVATE BILLS
THAT MUST HAVE BEEN INTRODUCED WERE THEREFORE AMONG THOSE ADDING TO
CONGRESS' BURDENS.  IN THESE CIRCUMSTANCES IT CANNOT BE ASSUMED THAT
CONGRESS WAS UNAWARE OF THEIR PRESENCE. 

A SECOND INDICATION THAT CONGRESS WAS CONSCIOUS OF CLAIMS BY FEDERAL
PRISONERS IS FOUND IN THE PRIOR VERSIONS OF THE ACT.  EFFORTS TO PERMIT
TORT SUITS AGAINST THE GOVERNMENT BEGAN IN 1925 WITH THE INTRODUCTION
OF H.R. 12178, 68TH CONG., 2D SESS.  (FN8)  THEREAFTER, AT LEAST ONE
BILL WAS INTRODUCED IN EVERY CONGRESS, WITH THE EXCEPTION OF THE
SEVENTY-FIFTH, UNTIL THE PRESENT ACT WAS PASSED BY THE SEVENTY-NINTH
CONGRESS IN 1946.  THOUGH THE PROVISIONS OF THESE BILLS UNDERWENT
CHANGE DURING THE INTERVENING 21 YEARS, THE SIMILARITIES ARE
NOTEWORTHY.  WITH THE AMENDMENT OF S. 1912 IN THE SIXTY-NINTH CONGRESS,
FIRST SESSION, FOR EXAMPLE, CAME THE FIRST SPECIFIC EXCEPTIONS TO THE
GENERAL WAIVER OF SOVEREIGN IMMUNITY.  TWO OF THOSE EXCEPTIONS,
RELATING TO POSTAL MATTERS AND TAXATION, WERE CAST IN LANGUAGE
VIRTUALLY IDENTICAL TO THAT USED IN THE ACT ULTIMATELY PASSED 20 YEARS
LATER.  AND AS EXCEPTIONS WERE ADDED OVER THE YEARS, MOST RELIEVED THE
GOVERNMENT FROM LIABILITY IN THE SAME CIRCUMSTANCES AS THE PRESENT
ACT.  ONLY A FEW EXCEPTIONS WERE AT ONE TIME PROPOSED AND LATER
DROPPED, WITHOUT COUNTERPART IN THE PRESENT ACT.  (FN9)  ONE SUCH
EXCEPTION RELATED TO CLAIMS BY FEDERAL PRISONERS.  SIX OF THE 31 BILLS
INTRODUCED IN CONGRESS BETWEEN 1925 AND 1946 EITHER BARRED PRISONERS
FROM SUING WHILE IN FEDERAL PRISON OR PRECLUDED SUIT UPON ANY CLAIM FOR
INJURY TO OR DEATH OF A PRISONER.  (FN10)  THAT SUCH AN EXCEPTION WAS
ABSENT FROM THE ACT ITSELF IS SIGNIFICANT IN VIEW OF THE CONSISTENT
COURSE OF DEVELOPMENT OF THE BILLS PROPOSED OVER THE YEARS AND THE
MARKED RELIANCE BY EACH SUCCEEDING CONGRESS UPON THE LANGUAGE OF THE
EARLIER BILLS.  WE THEREFORE FEEL THAT THE WANT OF AN EXCEPTION FOR
PRISONER'S CLAIMS REFLECTS A DELIBERATE CHOICE, RATHER THAN AN
INADVERTENT OMISSION. 

FINALLY, THE REPORT OF THE HOUSE COMMITTEE ON THE JUDICIARY MADE
EXPLICIT REFERENCE TO THE LAWS OF FOUR STATES, WHICH HAD RELAXED, TO
DIFFERING DEGREES, THE RULE OF SOVEREIGN IMMUNITY.  (FN11)  H.R. REP.
NO. 1287, 79TH CONG., 1ST SESS.  THE REPORT NOTED THAT SUCH
"LEGISLATION DOES NOT APPEAR TO HAVE HAD ANY DETRIMENTAL OR UNDESIRABLE
EFFECT."  ID., AT 3.  (FN12)  IN ONE OF THOSE FOUR STATES, NEW YORK, IT
WAS WELL SETTLED BY 1946 THAT PERSONS COULD RECOVER FOR INJURIES
SUSTAINED IN PRISON.  (FN13)  CONGRESSIONAL EQUANIMITY IN THE FACE OF
SUCH LIABILITY FURTHER STRENGTHENS THE CONCLUSION THAT CONGRESS
INTENDED TO PERMIT SUITS BY FEDERAL PRISONERS. 

CONSIDERING THE PLAIN IMPORT OF THE STATUTORY LANGUAGE, THE NUMBER OF
PRISONERS' CLAIMS AMONG THE INDIVIDUAL APPLICATIONS FOR PRIVATE BILLS
LEADING TO THE PASSAGE OF THE FEDERAL TORT CLAIMS ACT, THE FREQUENT
MENTION OF A PRISONER-CLAIMS EXCEPTION IN PROPOSED BILLS, AND THE
REFERENCE, AMONG OTHERS, TO NEW YORK LAW, WHICH PERMITTED RECOVERY BY
PRISONERS, WE BELIEVE IT IS CLEAR THAT CONGRESS INTENDED TO WAIVE
SOVEREIGN IMMUNITY IN CASES ARISING FROM PRISONERS' CLAIMS.  (FN14) 

THE GOVERNMENT ARGUES NEVERTHELESS THAT WE SHOULD IMPLY AN EXCEPTION
TO THE FEDERAL TORT CLAIMS ACT.  FOR ONE THING, THE GOVERNMENT URGES
THAT OUR DECISION IN FERES V. UNITED STATES, 340 U.S. 135, CONTROLS. 
FOR ANOTHER, IT MAINTAINS THAT THE IMPACT OF LIABILITY UPON PRISON
DISCIPLINE WOULD SO SERIOUSLY IMPAIR THE ADMINISTRATION OF OUR PRISONS
THAT CONGRESS COULD NOT HAVE INTENDED SUCH AN "EXTREME" RESULT. 

THE COURT HELD, IN FERES V. UNITED STATES, THAT A SOLDIER COULD NOT
SUE UNDER THE FEDERAL TORT CLAIMS ACT FOR INJURIES WHICH "ARISE OUT OF
OR ARE IN THE COURSE OF ACTIVITY INCIDENT TO SERVICE."  340 U.S., AT
146.  AMONG THE PRINCIPAL REASONS ARTICULATED FOR DOING SO WERE:  (1)
THE ABSENCE OF AN ANALOGOUS OR PARALLEL LIABILITY, ON THE PART OF
EITHER AN INDIVIDUAL OR A STATE; NO INDIVIDUAL HAS POWER TO MOBILIZE A
MILITIA, NO STATE HAD BEEN HELD LIABLE TO ITS MILITIAMEN; (2) THE
PRESENCE OF A COMPREHENSIVE COMPENSATION SYSTEM FOR SERVICE PERSONNEL;
(3) THE DEARTH OF PRIVATE BILLS FROM THE MILITARY; (4) THE DISTINCTLY
FEDERAL RELATIONSHIP OF THE SOLDIER TO HIS SUPERIORS AND THE
GOVERNMENT, WHICH SHOULD NOT BE DISTURBED BY STATE LAWS; AND (5) THE
VARIATIONS IN STATE LAW TO WHICH SOLDIERS WOULD BE SUBJECTED,
INVOLUNTARILY, SINCE THEY HAVE NO CHOICE IN WHERE THEY GO. ALTHOUGH WE
FIND NO OCCASION TO QUESTION FERES, SO FAR AS MILITARY CLAIMS ARE
CONCERNED, THE REASONS FOR THAT DECISION ARE NOT COMPELLING HERE. 

FIRST, THE GOVERNMENT'S LIABILITY IS NO LONGER RESTRICTED TO
CIRCUMSTANCES IN WHICH GOVERNMENT BODIES HAVE TRADITIONALLY BEEN
RESPONSIBLE FOR MISCONDUCT OF THEIR EMPLOYEES.  THE ACT EXTENDS TO
NOVEL AND UNPRECEDENTED FORMS OF LIABILITY AS WELL.  INDIAN TOWING CO.
V. UNITED STATES, 350 U.S. 61; RAYONIER, INC., V. UNITED STATES, 352
U.S. 315.  AND IN ANY EVENT, AN ANALOGOUS FORM OF LIABILITY EXISTS.  A
NUMBER OF STATES HAVE ALLOWED PRISONERS TO RECOVER FROM THEIR JAILERS
FOR NEGLIGENTLY CAUSED INJURIES (FN15) AND SEVERAL STATES HAVE ALLOWED
SUCH RECOVERY AGAINST THEMSELVES.   (FN16) 

SECOND, THE PRESENCE OF A COMPENSATION SYSTEM, PERSUASIVE IN FERES,
DOES NOT OF NECESSITY PRECLUDE A SUIT FOR NEGLIGENCE.  IN UNITED STATES
V. BROWN, 348 U.S. 110, A VETERAN SOUGHT DAMAGES FOR NEGLIGENT
TREATMENT IN A VETERANS ADMINISTRATION HOSPITAL AGGRAVATING A SERVICE
INCURRED INJURY.  THE VETERAN RECEIVED ADDITIONAL COMPENSATION FOR THE
AGGRAVATION OF THE INJURY, EVEN THOUGH HE WAS NO LONGER ON ACTIVE
DUTY.  THE COURT NONETHELESS HELD THAT HE COULD BRING SUIT UNDER THE
FEDERAL TORT CLAIMS ACT.  ALSO, THE COMPENSATION SYSTEM IN EFFECT FOR
PRISONERS IN 1946 WAS NOT COMPREHENSIVE.  IT PROVIDED COMPENSATION ONLY
FOR INJURIES INCURRED WHILE ENGAGED IN PRISON INDUSTRIES.  NEITHER
WINSTON NOR MUNIZ WOULD HAVE BEEN COVERED.  (FN17) 

THIRD, PRIVATE BILLS WERE NEVER A PROBLEM IN THE MILITARY, FERES V.
UNITED STATES, 340 U.S. 135, 140, AS CONGRESS MIGHT HAVE THOUGHT THEM
TO BE IN THE CASE OF PRISONERS.  (FN18) 

ADMITTEDLY, THE REMAINING REASONS FOR THE DECISION IN FERES, FLOWING
FROM THE IMPACT OF STATE LAW UPON A FEDERAL ESTABLISHMENT, COULD HAVE
RELEVANCE TO THE PRISONS AS WELL AS THE ARMED FORCES.  THE VARIATIONS
IN STATE LAW MAY TO SOME EXTENT HAMPER UNIFORM ADMINISTRATION OF
FEDERAL PRISONS, AS IT WAS FEARED THEY WOULD HAMPER THE MILITARY.  AND
THE PRISONERS' OPPORTUNITIES TO RECOVER MAY BE AFFECTED BY DIFFERENCES
IN STATE LAW OVER WHICH THEY HAVE NO CONTROL, A POSITION SHARED BY
SERVICE PERSONNEL WHOSE LOCATION IS DETERMINED BY GOVERNMENT ORDER
RATHER THAN PERSONAL VOLITION.  SO FAR AS UNIFORMITY OF OPERATION IS
CONCERNED, HOWEVER, WE HAVE BEEN GIVEN FEW CONCRETE EXAMPLES OF HOW
VARIATIONS IN PERSONAL INJURY LAW WOULD IMPAIR THE PRISON SYSTEM. 
(FN19)  WE ARE TOLD NOT THAT THE GOVERNMENT WILL BE JUDGED UNDER TOO
HIGH A STANDARD BUT UNDER TOO MANY.  THIS SEEMS MORE A MATTER OF
CONJECTURE THAN OF REALITY.  THE PUBLISHED DECISIONS IN WHICH PRISONERS
HAVE SOUGHT DAMAGES HAVE RELATED MORE TO THE PRECAUTIONS NECESSARY TO
PROTECT A KITCHEN WORKER FROM GETTING STEEL WOOL IN HIS FINGERS, (FN20)
TO PROTECT A PRISONER FROM AN EXPLODING EMERY WHEEL, (FN21) OR TO
PROTECT A PRISONER FROM FALLING OFF A LADDER, (FN22) THAN TO SOME
DELICATE MATTER OF PRISON ADMINISTRATION.  EVEN A MATTER SUCH AS
IMPROPER MEDICAL TREATMENT CAN BE JUDGED UNDER THE VARYING STATE LAWS
OF MALPRACTICE WITHOUT VIOLENT DISLOCATION OF PRISON ROUTINE.  CF.
PANELLA V. UNITED STATES, 216 F.2D 622 (C.A.2D CIR.).  WITHOUT MORE
DEFINITE INDICATION OF THE RISKS OF HARM FROM DIVERSITY, WE CONCLUDE
THAT THE PRISON SYSTEM WILL NOT BE DISRUPTED BY THE APPLICATION OF
CONNECTICUT LAW IN ONE CASE AND INDIANA LAW IN ANOTHER TO DECIDE
WHETHER THE GOVERNMENT SHOULD BE LIABLE TO A PRISONER FOR THE
NEGLIGENCE OF ITS EMPLOYEES.  FINALLY, THOUGH THE GOVERNMENT EXPRESSES
SOME CONCERN THAT THE NONUNIFORM RIGHT TO RECOVER WILL PREJUDICE
PRISONERS, IT NONETHELESS SEEMS CLEAR THAT NO RECOVERY WOULD PREJUDICE
THEM EVEN MORE. 

IN THE LAST ANALYSIS, FERES SEEMS BEST EXPLAINED BY THE: 

"PECULIAR AND SPECIAL RELATIONSHIP OF THE SOLDIER TO HIS SUPERIORS,
THE EFFECTS OF THE MAINTENANCE OF SUCH SUITS ON DISCIPLINE, AND THE
EXTREME RESULTS THAT MIGHT OBTAIN IF SUITS UNDER THE TORT CLAIMS ACT
WERE ALLOWED FOR NEGLIGENT ORDERS GIVEN OR NEGLIGENT ACTS COMMITTED IN
THE COURSE OF MILITARY DUTY  ...  ."  UNITED STATES V. BROWN, 348 U.S.
110, 112. 

WE ALSO ARE RELUCTANT TO BELIEVE THAT THE POSSIBLE ABUSES STEMMING
FROM PRISONERS' SUITS ARE SO SERIOUS THAT ALL CHANCE OF RECOVERY SHOULD
BE DENIED.  IT IS POSSIBLE, AS THE GOVERNMENT SUGGESTS, THAT FRIVOLOUS
SUITS WILL BE BROUGHT, DESIGNED ONLY TO HARASS OR, MORE SINISTER,
DISCOVER DETAILS OF PRISON SECURITY USEFUL IN PLANNING AN ESCAPE.  AND
IT IS POSSIBLE THAT THE GOVERNMENT WILL BE SUBJECTED TO THE BURDEN OF
PRETRIAL PREPARATION, DISCOVERY, AND TRIAL, EVEN THOUGH IT PREVAILS ON
THE MERITS.  THIS SEEMS AN INESCAPABLE CONCOMITANT OF ANY FORM OF
LIABILITY.  IT IS ALSO POSSIBLE THAT LITIGATION WILL DAMAGE PRISON
DISCIPLINE, AS THE GOVERNMENT MOST VIGOROUSLY ARGUES.  HOWEVER, WE HAVE
BEEN SHOWN NO EVIDENCE THAT THESE POSSIBILITIES HAVE BECOME ACTUALITIES
IN THE MANY STATES ALLOWING SUITS AGAINST JAILERS, OR THE SMALLER
NUMBER ALLOWING RECOVERY DIRECTLY AGAINST THE STATES THEMSELVES.  SEE
NOTES 15 AND 16, SUPRA. 

IN ADDITION, CONGRESS HAS TAKEN STEPS TO PROTECT THE GOVERNMENT FROM
LIABILITY THAT WOULD SERIOUSLY HANDICAP EFFICIENT GOVERNMENT
OPERATIONS.  WE DO NOT INTIMATE ANY OPINION UPON THEIR APPLICABILITY TO
THESE COMPLAINTS, SINCE NO SUCH ISSUE IS PRESENTED FOR OUR REVIEW.  WE
SIMPLY NOTE THAT THE GOVERNMENT IS NOT WITHOUT DEFENSES.  MOST
IMPORTANT, THE GOVERNMENT IS RELIEVED FROM LIABILITY ON: 

"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 A
DISCRETIONARY FUNCTION OR DUTY ON THE PART OF A FEDERAL AGENCY OR AN
EMPLOYEE OF THE GOVERNMENT, WHETHER OR NOT THE DISCRETION INVOLVED IS
ABUSED."  28 U.S.C. SEC. 2680(A).  (FN23) 

ALSO, THE GOVERNMENT IS NOT LIABLE FOR THE INTENTIONAL TORTS OF ITS
EMPLOYEES, 28 U.S.C.  SEC. 2680(H), FOR WHICH PRISONERS MIGHT BE
ESPECIALLY TEMPTED TO INITIATE RETRIBUTIVE LITIGATION.  (FN24)  WE ARE
CONFIDENT THAT DISTRICT JUDGES, SITTING WITHOUT A JURY AS REQUIRED BY
28 U.S.C. SEC. 2402, WILL BE ABLE TO DISPOSE OF COMPLAINTS
INTELLIGENTLY WITHOUT UNDUE HARM COMING TO OUR FEDERAL PRISONS.  (FN25)
FEDERAL RULES OF PROCEDURE ARE NOT SO INFLEXIBLE THAT CLEARLY
FRIVOLOUS SUITS NEED EMBARRASS PRISON OFFICIALS OR BURDEN UNITED STATES
ATTORNEYS' OFFICES. 

ONE LAST POINT REMAINS.  JAILERS IN SOME STATES ARE NOT LIABLE TO
THEIR PRISONERS.  FOR EXAMPLE, SEVERAL STATES HAVE DECIDED THAT A
WARDEN IN CHARGE OF A PENITENTIARY, CARDER V. STEINER, 225 MD. 271, 170
A.2D 220, OR A SHERIFF IN CHARGE OF A COUNTY JAIL, BUSH V. BABB, 23
ILL. APP. 2D 285, 162 N.E.2D 594, IS IMMUNE FROM SUIT BECAUSE HE
EXERCISES A QUASI-JUDICIAL FUNCTION REQUIRING THE USE OF DISCRETION. 
ANOTHER HAS DECIDED THAT THE MASTER OF A HOUSE OF CORRECTION HAS NO
DUTY OF CARE TOWARD HIS PRISONERS WHICH WOULD MAKE HIM LIABLE FOR HIS
NEGLIGENCE.  O'HARE V. JONES, 161 MASS. 391, 37 N.E. 371.  AND THERE
ARE OVERTONES IN THESE DECISIONS SUGGESTING THAT LIABILITY IS ALSO
DENIED BECAUSE OF THE FEAR THAT PRISON DISCIPLINE WOULD OTHERWISE BE
UNDERMINED.  SUCH CASES SHOULD NOT BE PERSUASIVE.  JUST AS WE REFUSED
TO IMPORT THE "CASUISTRIES OF MUNICIPAL LIABILITY FOR TORTS" IN INDIAN
TOWING, SO WE THINK IT IMPROPER TO LIMIT SUITS BY FEDERAL PRISONERS
BECAUSE OF RESTRICTIVE STATE RULES OF IMMUNITY.  WHETHER A
DISCRETIONARY FUNCTION IS INVOLVED IS A MATTER TO BE DECIDED UNDER 28
U.S.C. SEC. 2680(A), RATHER THAN UNDER STATE RULES RELATING TO
POLITICAL, JUDICIAL, QUASI-JUDICIAL, AND MINISTERIAL FUNCTIONS.  AND
THE DUTY OF CARE OWED BY THE BUREAU OF PRISONS TO FEDERAL PRISONERS IS
FIXED BY 18 U.S.C. SEC. 4042, INDEPENDENT OF AN INCONSISTENT STATE
RULE.  (FN26)  FINALLY, HAVING DECIDED THAT DISCIPLINE IN THE FEDERAL
PRISONS WILL NOT BE SO SERIOUSLY IMPAIRED THAT ALL RECOVERY SHOULD BE
DENIED FOR NEGLIGENTLY INFLICTED INJURIES, WE SHOULD NOT AT THE SAME
TIME MAKE RECOVERY DEPEND UPON A STATE'S DECISION TO THE CONTRARY. 
(FN27) 

THE FEDERAL TORT CLAIMS ACT PROVIDES MUCH-NEEDED RELIEF TO THOSE
SUFFERING INJURY FROM THE NEGLIGENCE OF GOVERNMENT EMPLOYEES.  WE
SHOULD NOT, AT THE SAME TIME THAT STATE COURTS ARE STRIVING TO MITIGATE
THE HARDSHIPS CAUSED BY SOVEREIGN IMMUNITY, (FN28) NARROW THE REMEDIES
PROVIDED BY CONGRESS.  (FN29)  AS WE SAID IN RAYONIER, INC., V. UNITED
STATES, SUPRA, AT 320, "THERE IS NO JUSTIFICATION FOR THIS COURT TO
READ EXEMPTIONS INTO THE ACT BEYOND THOSE PROVIDED BY CONGRESS.  IF THE
ACT IS TO BE ALTERED THAT IS A FUNCTION FOR THE SAME BODY THAT ADOPTED
IT."  AFFIRMED. 

FN1  28 U.S.C. SECS. 1346(B), 2671-2680. 

FN2  THE ORDERS OF THE DISTRICT COURT WERE INITIALLY REVERSED BY A
PANEL OF THREE JUDGES, ONE JUDGE DISSENTING.  305 F.2D 253, 285.  ON
REHEARING EN BANC, THE PANEL DECISIONS WERE UPHELD.  305 F.2D 264,
287. 

FN3  JAMES V. UNITED STATES, 280 F.2D 428 (C.A. 8TH CIR.), CERT.
DENIED, 364 U.S. 845; LACK V. UNITED STATES, 262 F.2D 167 (C.A. 8TH
CIR.); JONES V. UNITED STATES, 249 F.2D 864 (C.A. 7TH CIR.). 

FN4  JAMES V. UNITED STATES, 280 F.2D 428 (C.A. 8TH CIR.), CERT.
DENIED, 364 U.S. 845; LACK V. UNITED STATES, 262 F.2D 167 (C.A. 8TH
CIR.); JONES V. UNITED STATES, 249 F.2D 864 (C.A. 7TH CIR.); BERMAN V.
UNITED STATES, 170 F. SUPP. 107; GOLUB V. UNITED STATES, CIVIL NO. 148
117, D.C.S.D.N.Y., OCT. 5, 1959; COLLINS V. UNITED STATES, NO. T-1509,
D.C.D.  KANSAS, JAN. 29, 1958; TROSTLE V. UNITED STATES, NO. 1493,
D.C.W.D. MO., FEB. 20, 1958; VAN ZUCH V. UNITED STATES, 118 F. SUPP.
468; SHEW V. UNITED STATES, 116 F. SUPP. 1; SIGMON V. UNITED STATES,
110 F. SUPP. 906; ELLISON V. UNITED STATES, NO. 1003, D.C.W.D.N.C.,
JULY 26, 1951. 

FN5  AUGUST 2, 1946, C. 753, 60 STAT. 812. 

FN6  TO ENSURE TRANSFER OF PRIVATE CLAIMS TO THE COURTS, CONGRESS
PROHIBITED INTRODUCTION OF PRIVATE BILLS FOR CLAIMS COGNIZABLE UNDER
THE FEDERAL TORT CLAIMS ACT.  LEGISLATIVE REORGANIZATION ACT OF 1946,
SEC. 131, 60 STAT. 831, 2 U.S.C. SEC. 190G. 

FN7  ACT OF AUGUST 13, 1935, 49 STAT. 2132; ACT OF AUGUST 26, 1935,
49 STAT. 2182; ACT OF MARCH 7, 1936, 49 STAT. 2233; ACT OF MARCH 7,
1936; 49 STAT. 2234; ACT OF JUNE 11, 1937, 50 STAT. 986; ACT OF JUNE
15, 1937, 50 STAT. 993; ACT OF JUNE 29, 1937; 50 STAT.  1011; ACT OF
JULY 19, 1937, 50 STAT. 1036; ACT OF APRIL 13, 1938, 52 STAT. 1293; ACT
OF JULY 15, 1939, 53 STAT. 1473; ACT OF AUGUST 5, 1939, 53 STAT. 1501;
ACT OF AUGUST 21, 1941, 55 STAT. 955; ACT OF NOVEMBER 21, 1941, 55
STAT. 971; ACT OF FEBRUARY 10, 1942, 56 STAT.  1101; ACT OF FEBRUARY
18, 1942, 56 STAT. 1112; ACT OF JUNE 6, 1942, 56 STAT. 1180; ACT OF
DECEMBER 17, 1942, 56 STAT. 1244; ACT OF FEBRUARY 22, 1944, 58 STAT.
948; ACT OF MAY 29, 1944, 58 STAT. 982; ACT OF DECEMBER 20, 1944, 58
STAT. 1070; ACT OF JULY 25, 1946, 60 STAT. 1264. 

FN8  THE GOVERNMENT ALREADY HAD CONSENTED TO SUITS UPON ADMIRALTY AND
MARITIME TORTS INVOLVING GOVERNMENT VESSELS IN THE SUITS IN ADMIRALTY
ACT, 41 STAT. 525, 46 U.S.C. SECS.  741-752, AND THE PUBLIC VESSELS
ACT, 43 STAT. 1112, 46 U.S.C. SECS. 781-790. 

FN9  IN A FEW BILLS, AN EXCEPTION WAS MADE FOR CLAIMS ARISING OUT OF
NEGLIGENT TREATMENT IN GOVERNMENT HOSPITALS.  NO SUCH EXCEPTION WAS
MADE IN THE ACT AND SOVEREIGN IMMUNITY WAS CLEARLY WAIVED AS TO SUCH
CLAIMS.  SEE, E.G., UNITED STATES V. BROWN, 348 U.S. 110. 

THREE EXCEPTIONS WOULD HAVE BARRED RECOVERY UNDER THE ACT WHERE
COMPREHENSIVE COMPENSATION SCHEMES WERE IN EFFECT:  (1) CLAIMS COVERED
BY THE FEDERAL EMPLOYEES' COMPENSATION ACT; (2) CLAIMS FOR PERSONAL
INJURIES INCURRED BY MILITARY PERSONNEL ON ACTIVE DUTY; AND (3) CLAIMS
FOR DESTRUCTION OF PERSONAL PROPERTY BELONGING TO MILITARY PERSONNEL ON
ACTIVE DUTY COVERED BY PREDECESSORS OF THE MILITARY PERSONNEL CLAIMS
ACT OF 1945.  THE THREE APPLICABLE COMPENSATION STATUTES HAVE BEEN HELD
TO BE EXCLUSIVE:  (1) JOHANSEN V. UNITED STATES, 343 U.S. 427; SASSE V.
UNITED STATES, 201 F.2D 871 (C.A. 7TH CIR.); BUT CF. PARR V. UNITED
STATES, 172 F.2D 462 (C.A. 10TH CIR.); (2) FERES V. UNITED STATES, 340
U.S. 135 (AT LEAST TO THE EXTENT OF SERVICE-CONNECTED INJURIES OF
ACTIVE DUTY PERSONNEL); AND (3) PREFERRED INS. CO. V. UNITED STATES,
222 F.2D 942 (C.A. 9TH CIR.), CERT. DENIED, 350 U.S. 837. 

EXCEPTIONS RELATING TO THE ADMINISTRATION OF LAWS BY THE SEC AND FTC
OR TO THE EFFECT OF AN ACT OF CONGRESS OR AN EXECUTIVE ORDER NO LONGER
APPEAR, BUT ARE SUBSUMED UNDER 28 U.S.C. SEC. 2680(A), WHICH EXCLUDES
CLAIMS 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  ...  ." 

OTHER THAN THE EXCEPTION FOR PRISONERS' CLAIMS, DISCUSSED IN THE
TEXT, THE ONLY REMAINING EXCEPTIONS HAVING NO COUNTERPART IN THE
PRESENT ACT BARRED LIABILITY FOR GOVERNMENTAL ACTIVITY RELATING TO
FLOOD CONTROL, HARBOR AND RIVER WORK, AND IRRIGATION PROJECTS.  TO THE
EXTENT THAT THESE ACTIVITIES CONSTITUTE "DISCRETIONARY FUNCTIONS," THE
EXCEPTION OF 28 U.S.C. SEC. 2680(A) STILL PRESERVES GOVERNMENT
IMMUNITY.  UNITED STATES V. URE, 225 F.2D 709 (C.A. 9TH CIR.); COATES
V. UNITED STATES, 181 F.2D 816 (C.A. 8TH CIR.); MCGILLIC V. UNITED
STATES, 153 F. SUPP. 565. 

FN10  H.R. 17168, 71ST CONG., 3D SESS.; S. 211, 72D CONG., 1ST SESS.;
S. 4567, 72D CONG., 1ST SESS.; H.R. 5065, 72D CONG., 1ST SESS.; S.
1833, 73D CONG., 1ST SESS.; S. 1043, 74TH CONG., 1ST SESS. 

FN11  THE HOUSE REPORT ACCOMPANIED H.R. 181, 79TH CONG., 1ST SESS.,
WHICH RELATED ONLY TO TORT CLAIMS.  THE FEDERAL TORT CLAIMS ACT PASSED
AT THE SECOND SESSION OF THE SEVENTY-NINTH CONGRESS AS TITLE IV OF THE
LEGISLATIVE REORGANIZATION ACT OF 1946 WAS VIRTUALLY IDENTICAL TO H.R.
181, EXCEPT THAT THERE WAS NO LIMITATION OF LIABILITY. 

FN12  N.Y. LAWS 1929, C. 467, PROVIDED, IN PART: "THE STATE HEREBY
WAIVES ITS IMMUNITY FROM LIABILITY FOR THE TORTS OF ITS OFFICERS AND
EMPLOYEES AND CONSENTS TO HAVE ITS LIABILITY FOR SUCH TORTS DETERMINED
IN ACCORDANCE WITH THE SAME RULES OF LAW AS APPLY TO AN ACTION IN THE
SUPREME COURT AGAINST AN INDIVIDUAL OR A CORPORATION, AND THE STATE
HEREBY ASSUMES LIABILITY FOR SUCH ACTS, AND JURISDICTION IS HEREBY
CONFERRED UPON THE COURT OF CLAIMS TO HEAR AND DETERMINE ALL CLAIMS
AGAINST THE STATE TO RECOVER DAMAGES FOR INJURIES TO PROPERTY OR FOR
PERSONAL INJURY CAUSED BY THE OFFICER OR EMPLOYEE  ...  ." 

THE LAWS OF THE OTHER THREE STATES TO WHICH CONGRESS REFERRED,
CALIFORNIA, ARIZONA, AND ILLINOIS, CONFERRED JURISDICTION UPON THE
STATE COURTS TO HEAR SUITS AGAINST THE STATE GOVERNMENTS FOR
NEGLIGENCE.  CAL. STAT. 1893, C. 45; ARIZ. LAWS 1912, C. 59; ILL.  LAWS
1917, P. 325.  HOWEVER, THE STATE COURTS DID NOT CONSTRUE THE GRANT OF
JURISDICTION AS A WAIVER OF SOVEREIGN IMMUNITY AND CONTINUED TO FIND
THE GOVERNMENT IMMUNE, AT LEAST WHEN IT WAS ACTING IN A GOVERNMENTAL
RATHER THAN A PROPRIETARY CAPACITY.  E.G., DENNING V. STATE, 123 CAL.
316, 55 P. 1000; STATE V. SHARP, 21 ARIZ. 424, 189 P. 631; MONAHAN V.
STATE, 10 C.C.R. 10 (ILL. CT. OF CLAIMS). 

THE HOUSE REPORT DOES NOT MAKE THIS DISTINCTION APPARENT, NOR FOR
THAT MATTER DOES THE REPORT REFER WITH ANY PARTICULARITY TO THE LAWS OF
ANY STATE. 

FN13  E.G., PAIGE V. STATE, 269 N.Y. 352, 199 N.E. 617 (1936); WHITE
V. STATE, 260 APP.  DIV. 413, 23 N.Y.S.2D 526, AFF'D, 285 N.Y. 728, 34
N.E.2D 896 (1941).  THE REMEDY WAS LIMITED TO SOME EXTENT, HOWEVER,
SINCE A "CIVIL DEATH" STATUTE, N.Y. PENAL LAW SEC. 510, PRECLUDED SUIT
WHILE THE PERSON WAS STILL IN PRISON. 

AT THE TIME CONGRESS PASSED THE FEDERAL TORT CLAIMS ACT, ILLINOIS HAD
JUST AMENDED ITS LAWS AND WAIVED ITS SOVEREIGN IMMUNITY IN TORT SUITS. 
ILL. LAWS 1945, P. 660 (NOW ILL. REV. STAT. 1961, C. 37, SEC. 439.8). 
UNDER THIS AMENDMENT, ILLINOIS PRISONERS WERE PERMITTED TO RECOVER
AGAINST THE STATE FOR NEGLIGENTLY CAUSED INJURIES INCURRED IN PRISON. 
E.G., MOORE V. STATE, 21 C.C.R. 282 (ILL. CT. OF CLAIMS).  THIS CHANGE
IN ILLINOIS LAW OCCURRED AFTER H.R. REP. NO. 1287, 79TH CONG., 1ST
SESS., WAS PREPARED AND WAS NOT BROUGHT TO CONGRESS' ATTENTION.    FN14
IT IS TRUE, AS THE GOVERNMENT POINTS OUT, THAT CONGRESS HAS, SINCE
1946, PASSED PRIVATE BILLS FOR THE RELIEF OF FEDERAL PRISONERS.  E.G.,
ACT OF JUNE 21, 1955, 69 STAT.  A30; ACT OF JUNE 29, 1956, 70 STAT.
A97.  SINCE SEC. 131 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 2
U.S.C. SEC. 190G, DOES NOT PERMIT SUCH BILLS IF RECOVERY IS AVAILABLE
UNDER THE FEDERAL TORT CLAIMS ACT, CONGRESS' PASSAGE OF PRIVATE BILLS
MUST, THE GOVERNMENT ARGUES, BE TAKEN AS CONGRESSIONAL APPROVAL OF THE
DECISIONS BARRING SUIT BY FEDERAL PRISONERS.  HOWEVER, THE CONSTRUCTION
GIVEN AN ACT OF THE SEVENTY-NINTH CONGRESS BY THE EIGHTY-FOURTH
CONGRESS IS NOT DETERMINATIVE, RAINWATER V. UNITED STATES, 356 U.S.
590, 593, AND THE ACQUIESCENCE OF SUBSEQUENT CONGRESSES DOES NOT OF
NECESSITY CONSTITUTE APPROVAL.  "WE DO NOT EXPECT CONGRESS TO MAKE AN
AFFIRMATIVE MOVE EVERY TIME A LOWER COURT INDULGES IN AN ERRONEOUS
INTERPRETATION."  JONES V. LIBERTY GLASS CO., 332 U.S. 524, 534. 

FN15  SEE CASES COLLECTED AT 14 A.L.R.2D 353; SEE ALSO WOODY,
RECOVERY BY FEDERAL PRISONERS UNDER THE FEDERAL TORT CLAIMS ACT, 36
WASH. L. REV. 338, 353, N. 83. 

FN16  NEW YORK, SEE NOTE 12, SUPRA; ILLINOIS, SEE NOTE 13, SUPRA;
NORTH CAROLINA, N.C. GEN STAT., 1958, SEC. 143-291; IVEY V. NORTH
CAROLINA PRISON DEPT., 252 N.C. 615, 114 S.E.2D 812; WASHINGTON, WASH.
LAWS 1961, C. 136. 

FN17  THE PREDECESSOR OF 18 U.S.C. SEC. 4126 PROVIDED COMPENSATION IN
1946 ONLY FOR PRISONERS WORKING FOR FEDERAL PRISON INDUSTRIES, INC.
ONLY 20% OF ALL FEDERAL PRISONERS WERE SO ENGAGED.  1957 REP. ATTY.
GEN. 409.  AND EVEN THOSE PRISONERS WOULD NOT HAVE BEEN COVERED FOR
INJURIES SUSTAINED OUTSIDE WORKING HOURS.  IN 1961, CONGRESS EXTENDED
COMPENSATION "TO INMATES OR THEIR DEPENDENTS FOR INJURIES SUFFERED IN
ANY INDUSTRY OR IN ANY WORK ACTIVITY IN CONNECTION WITH THE MAINTENANCE
OR OPERATION OF THE INSTITUTION WHERE CONFINED."  18 U.S.C. SEC. 4126,
AS AMENDED, SEPT. 26, 1961, 75 STAT. 681.  EVEN THIS BROADENED COVERAGE
FAILS TO REACH ROUGHLY 10% OF THE PRISONERS WHO ARE PHYSICALLY UNABLE
TO WORK.  1957 REP. ATTY. GEN. 409.  AND, IN ANY EVENT, THE
COMPENSATION SYSTEM STILL FAILS TO PROVIDE FOR NONWORK INJURIES,
CONTRARY TO THAT APPLICABLE TO MILITARY PERSONNEL.  FINALLY, THE
ALTERATION OF A COMPENSATION SCHEME 15 YEARS AFTER CONGRESS PASSED THE
FEDERAL TORT CLAIMS ACT DOES NOT PROVIDE RELIABLE INSIGHT INTO THE THEN
EXISTING CONGRESSIONAL INTENT. 

FN18  SEE NOTE 7, SUPRA. 

FN19  ONE SUGGESTION WAS THAT KANSAS MIGHT FIND A 10 TO 1 GUARD TO
PRISONER RATIO NECESSARY, WHILE ALABAMA WOULD BE SATISFIED WITH 30 TO
1; THUS THE WARDENS OF PENITENTIARIES AT LEAVENWORTH AND ATLANTA WOULD
HAVE TO SHAPE THEIR CONDUCT TO DIFFERENT STATE STANDARDS.  IT WOULD
SEEM MORE PROBABLE, HOWEVER, THAT NO STATE HAS SO CAREFULLY DELINEATED
THE BOUNDARY BETWEEN NEGLIGENCE AND REASONABLE CARE AND THAT, IN ANY
EVENT, WARDENS WOULD ASSIGN THE NUMBER OF GUARDS THEY COULD AFFORD OR
THOUGHT NECESSARY, RATHER THAN THE NUMBER THAT MIGHT SATISFY STATE
CONCEPTS OF DUE CARE. 

FN20  SEE VAN ZUCH V. UNITED STATES, 118 F. SUPP. 468. 

FN21  SEE SIGMON V. UNITED STATES, 110 F. SUPP. 906. 

FN22  SEE LACK V. UNITED STATES, 262 F.2D 167 (C.A. 8TH CIR.). 

FN23  SEE, E.G., MORTON V. UNITED STATES, 97 U.S. APP. D.C. 84, 228
F.2D 431. 

FN24  IBID. 

FN25  THOUGH THERE ARE A NUMBER OF INSTANCES IN WHICH FEDERAL COURTS
HAVE DECLINED TO REVIEW MATTERS OF INTERNAL PRISON DISCIPLINE AND
ADMINISTRATION, FREQUENTLY UPON APPLICATION FOR HABEAS CORPUS, THEY
HAVE REVIEWED SERIOUS CHARGES OF DEPRIVATION OF CONSTITUTIONAL RIGHTS,
E.G., PIERCE V. LA VALLEE, 293 F.2D 233 (C.A.2D CIR.); SEWELL V.
PEGELOW, 291 F.2D 196 (C.A. 4TH CIR.).  SEE ALSO PANELLA V. UNITED
STATES, 216 F.2D 622 (C.A.2D CIR.) (U.S. PUBLIC HEALTH SERVICE
HOSPITAL, LEXINGTON, KY.); COFFIN V. REICHARD, 143 F.2D 443 (C.A. 6TH
CIR.)(U.S. PUBLIC HEALTH SERVICE HOSPITAL, LEXINGTON, KY.). 

FN26  18 U.S.C. SEC. 4042 PROVIDES: 

"THE BUREAU OF PRISONS, UNDER THE DIRECTION OF THE ATTORNEY GENERAL,
SHALL: 

"(1)  HAVE CHARGE OF THE MANAGEMENT AND REGULATION OF ALL FEDERAL
PENAL AND CORRECTIONAL INSTITUTIONS: 

"(2)  PROVIDE SUITABLE QUARTERS AND PROVIDE FOR THE SAFEKEEPING,
CARE, AND SUBSISTENCE OF ALL PERSONS CHARGED WITH OR CONVICTED OF
OFFENSES AGAINST THE UNITED STATES, OR HELD AS WITNESSES OR OTHERWISE: 

"(3)  PROVIDE FOR THE PROTECTION, INSTRUCTION, AND DISCIPLINE OF ALL
PERSONS CHARGED WITH OR CONVICTED OF OFFENSES AGAINST THE UNITED
STATES." 

FN27  RESPONDENT MUNIZ SUGGESTS THAT A FEDERAL LAW SHOULD BE
DEVELOPED, SINCE SOME FEDERAL PRISONS ARE WITHIN FEDERAL ENCLAVES.  THE
SUGGESTION IS IMPRACTICAL, SINCE SOME PRISONS ARE NOT WITHIN ENCLAVES,
AND IS FORESTALLED BY 45 STAT. 54, 16 U.S.C. SEC. 457, WHICH PROVIDES: 

"IN THE CASE OF THE DEATH OF ANY PERSON BY THE NEGLECT OR WRONGFUL
ACT OF ANOTHER WITHIN A NATIONAL PARK OR OTHER PLACE SUBJECT TO THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES, WITHIN THE EXTERIOR
BOUNDARIES OF ANY STATE, SUCH RIGHT OF ACTION SHALL EXIST AS THOUGH THE
PLACE WERE UNDER THE JURISDICTION OF THE STATE WITHIN WHOSE EXTERIOR
BOUNDARIES SUCH PLACE MAY BE; AND IN ANY ACTION BROUGHT TO RECOVER ON
ACCOUNT OF INJURIES SUSTAINED IN ANY SUCH PLACE THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY THE LAWS OF THE STATE WITHIN THE EXTERIOR
BOUNDARIES OF WHICH IT MAY BE."  SEE, E.G., STOKES V. ADAIR, 265 F.2D
662 (C.A. 4TH CIR.), CERT. DENIED, 361 U.S. 816. 

FN28  SEE, E.G., HOLYTZ V. MILWAUKEE, 17 WIS. 2D 26, 115 N.W.2D 618;
MUSKOPF V. CORNING HOSPITAL DIST., 55 CAL. 2D 211, 359 P.2D 457;
WILLIAMS V. DETROIT, 364 MICH. 231, 111 N.W.2D 1; MOLITOR V. KANELAND
COMMUNITY UNIT DIST. NO. 302, 18 ILL. 2D 11, 163 N.E.2D 89; HARGROVE V.
COCOA BEACH, 96 SO. 2D 130 (FLA.). 

FN29  SEE POUND, THE TORT CLAIMS ACT:  REASON OR HISTORY?  30 NACCA
L.J. - (1963). 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












MOSELEY, DBA MOSELEY PLUMBING & HEATING CO. V. ELECTRONIC & MISSILE
FACILITIES, INC. 374 U.S. 167 


NO. 401.  ARGUED APRIL 16-17, 1963 - DECIDED JUNE 17, 1963 - 306 F.2D
554, REVERSED. 


A PLUMBING AND HEATING SUBCONTRACTOR BROUGHT SUIT UNDER THE MILLER ACT
IN A FEDERAL DISTRICT COURT IN GEORGIA AGAINST A PRIME CONTRACTOR UNDER
CONTRACTS WITH THE UNITED STATES FOR CONSTRUCTION WORK AT TWO AIR FORCE
BASES IN GEORGIA SEEKING (1) RECOVERY OF AMOUNTS ALLEGED TO BE DUE
UNDER THE SUBCONTRACTS, OR (2) RESCISSION OF THE SUBCONTRACTS ON
GROUNDS OF FRAUD AND RECOVERY ON A QUANTUM MERUIT BASIS, OR (3)
RECOVERY OF THE REASONABLE VALUE OF THE LABOR AND MATERIALS FURNISHED,
AND (4) TO ENJOIN THE PRIME CONTRACTOR FROM PURSUING LITIGATION WHICH
IT HAD INSTITUTED IN A NEW YORK STATE COURT SEEKING ARBITRATION
PROCEEDINGS IN NEW YORK UNDER PROVISIONS OF THE SUBCONTRACTS, WHICH THE
SUBCONTRACTOR CLAIMED TO BE FRAUDULENT.  THE DISTRICT COURT HELD THAT
(1) THE MILLER ACT GAVE THE SUBCONTRACTOR THE RIGHT TO SUE IN THE
DISTRICT WHERE THE SUBCONTRACTS WERE PERFORMED AND (2) THE ARBITRATION
CLAUSE, IF INDUCED BY FRAUD, WOULD BE VITIATED; AND IT ENJOINED THE
ARBITRATION PROCEEDINGS IN NEW YORK.  THE COURT OF APPEALS REVERSED,
HOLDING THAT THE SUBCONTRACTOR MUST ARBITRATE IN NEW YORK UNDER NEW
YORK LAW.  HELD:  THE ISSUE OF FRAUD MUST FIRST BE DETERMINED BY THE
DISTRICT COURT, SINCE A DETERMINATION THAT THE SUBCONTRACTS OR THEIR
ARBITRATION PROVISIONS WERE FRAUDULENT WOULD ELIMINATE ANY CONFLICT
BETWEEN THEM, THE UNITED STATES ARBITRATION ACT AND THE MILLER ACT. 
PP. 168-172. 

MOSELEY, DOING BUSINESS AS MOSELEY PLUMBING & HEATING CO., V. ELECTRONIC
& MISSLE FACILITIES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE PRIMARY ISSUE IN THIS CASE IS WHETHER A CLAIM UNDER THE MILLER
ACT, 40 U.S.C. SEC. 270A-270D, AS AMENDED, BASED UPON ARBITRATION
CLAUSES IN TWO SUBCONTRACTS PROVIDING FOR ARBITRATION OF ANY DISPUTE
ARISING THEREUNDER, IS ENFORCEABLE UNDER THE PROVISIONS OF THE UNITED
STATES ARBITRATION ACT.  9 U.S.C. SECS. 1, 2 AND 3.  THE INSTITUTION OF
THIS SUIT WAS DIRECTED TOWARD THE RECOVERY OF COMPENSATION ALLEGED TO
BE DUE UNDER TWO SUBCONTRACTS BETWEEN THE PETITIONER, A PLUMBING AND
HEATING CONTRACTOR, AND THE RESPONDENT ELECTRONIC & MISSILE FACILITIES,
INC., WHO WAS THE PRIME CONTRACTOR UNDER A CONTRACT WITH THE UNITED
STATES CORPS OF ENGINEERS, SAVANNAH DISTRICT, COVERING CERTAIN NIKE
HERCULES MISSILE INSTALLATIONS AT ROBINS AIR FORCE BASE DEFENSE AREA
AND TURNER AIR FORCE BASE DEFENSE AREA, BOTH OF WHICH ARE LOCATED IN
THE STATE OF GEORGIA.  THE SUBCONTRACTS PROVIDED FOR ARBITRATION IN NEW
YORK, AND, DISPUTES HAVING ARISEN THEREUNDER, THE RESPONDENT FILED SUIT
IN THE SUPREME COURT OF NEW YORK SEEKING AN ORDER DIRECTING ARBITRATION
IN ACCORDANCE WITH THE ARBITRATION PROVISIONS.  PETITIONER THEN FILED
THIS SUIT IN THE MIDDLE DISTRICT OF GEORGIA, WHERE THE WORK UNDER THE
SUBCONTRACTS WAS PERFORMED, SEEKING (1) RECOVERY OF THE AMOUNTS ALLEGED
TO BE DUE UNDER THE SUBCONTRACTS; (2) RESCISSION OF THE SUBCONTRACTS -
ON GROUNDS OF FRAUD - AND RECOVERY ON A QUANTUM MERUIT BASIS; (3) IN
THE ALTERNATIVE, FAILING IN BOTH OF THESE CLAIMS, RECOVERY OF THE
REASONABLE VALUE OF THE LABOR AND MATERIALS FURNISHED; AND (4) AN
INJUNCTION ENJOINING THE RESPONDENT FROM PROCEEDING WITH ITS
ARBITRATION EFFORTS IN NEW YORK.  NEITHER PARTY SOUGHT TO COMPEL
SPECIFIC PERFORMANCE OF THE ARBITRATION AGREEMENT.  THE DISTRICT COURT,
HOLDING (1) THAT THE MILLER ACT GAVE PETITIONER THE RIGHT TO SUE IN THE
DISTRICT COURT WHERE THE SUBCONTRACTS WERE PERFORMED AND (2) THAT THE
ARBITRATION CLAUSE, IF INDUCED BY FRAUD ON THE PART OF RESPONDENT,
WOULD BE VITIATED, MADE PERMANENT ITS PRIOR RESTRAINING ORDER DIRECTED
AT THE ARBITRATION PROCEEDINGS IN NEW YORK.  THE COURT OF APPEALS
REVERSED, HOLDING THAT PETITIONER MUST ARBITRATE IN NEW YORK UNDER NEW
YORK LAW.  306 F.2D 554.  WE GRANTED CERTIORARI.  371 U.S. 919. 
PETITIONER ATTACKS THE SUBCONTRACTS, AS WELL AS THE ARBITRATION
AGREEMENT, AS BEING FRAUDULENT, AND THIS ISSUE, WE CONCLUDE, MUST BE
FIRST DETERMINED BY THE DISTRICT COURT.  WE THEREFORE REVERSE THE
JUDGMENT AND REMAND THE CASE TO THE COURT OF APPEALS WITH DIRECTIONS TO
REMAND TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. 

                           I. 

WE NEED NOT ELABORATE AT LENGTH ON THE INVOLVED FACTUAL SITUATION
SINCE IT IS DETAILED IN THE OPINIONS OF THE COURT OF APPEALS AND THE
DISTRICT COURT.  AS WE HAVE SAID, PETITIONER FILED SUIT IN THE UNITED
STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA, THE DISTRICT
IN WHICH THE SUBCONTRACTS WERE PERFORMED, ALLEGING BREACH OF CONTRACT
FOR REFUSAL TO PAY AND SEEKING RECOVERY FOR WORK WHICH HAD BEEN
PERFORMED AND, ALTERNATIVELY, RESCISSION OF THE SUBCONTRACTS ON GROUNDS
OF FRAUD.  THE SUIT WAS BROUGHT UNDER THE PROVISIONS OF THE MILLER ACT,
WHICH PROVIDES IN PERTINENT PART: 

"EVERY SUIT INSTITUTED UNDER THIS SECTION SHALL BE BROUGHT IN THE
NAME OF THE UNITED STATES FOR THE USE OF THE PERSON SUING, IN THE
UNITED STATES DISTRICT COURT FOR ANY DISTRICT IN WHICH THE CONTRACT WAS
TO BE PERFORMED AND EXECUTED AND NOT ELSEWHERE, IRRESPECTIVE OF THE
AMOUNT IN CONTROVERSY  ...  ."  40 U.S.C. SEC. 270BB). 

IT FURTHER PROVIDES THAT PARTIES INCLUDED WITHIN THE ACT "SHALL HAVE
THE RIGHT TO SUE  ...  AND TO PROSECUTE SAID ACTION TO FINAL EXECUTION
AND JUDGMENT  ...  ."  ID., AT SEC. 270BA).  RESPONDENT MOVED TO
DISMISS THE SUIT OR STAY THE SAME SO THAT THE NEW YORK ARBITRATION SUIT
MIGHT PROCEED UNDER THE TERMS OF BOTH SUBCONTRACTS, EACH OF WHICH
PROVIDED THAT "ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO"
THE SUBCONTRACTS OR THEIR BREACH WOULD BE SUBMITTED TO ARBITRATION IN
NEW YORK CITY UNDER NEW YORK LAW.  IN DENYING THESE MOTIONS THE
DISTRICT COURT HELD THAT THE ARBITRATION ACT DID NOT APPLY HERE SINCE
ANY OTHER HOLDING WOULD NULLIFY THE PROVISIONS OF THE MILLER ACT.  IT
ALSO CONCLUDED THAT THE ALLEGATIONS OF FRAUD, IF SUSTAINED, WOULD,
UNDER GEORGIA LAW, RESCIND THE SUBCONTRACTS, INCLUDING THE AGREEMENT
FOR ARBITRATION. 

THE COURT OF APPEALS, WITH ONE JUDGE DISSENTING, REVERSED ON THE
THEORY THAT THE MILLER ACT WAS NOT ENACTED FOR THE BENEFIT OF
PLAINTIFFS IN THE SELECTION OF A FORUM, BUT RATHER FOR THE CONVENIENCE
OF THE DEFENDANT, AND THAT THIS IS THE TYPE OF DISPUTE THAT IS AND
SHOULD BE SUBJECT TO ARBITRATION.  AS TO THE ISSUE OF FRAUD, IT HELD
THAT FEDERAL LAW CONTROLS IN DETERMINING WHETHER AN ALLEGATION OF FRAUD
PRECLUDES ARBITRATION OF A DISPUTE ARISING UNDER THE SUBCONTRACTS AND
CONCLUDED THAT, IN ORDER TO BAR ARBITRATION UNDER FEDERAL LAW, THE
ALLEGATION OF FRAUD MUST BE SPECIFICALLY DIRECTED TO THE ARBITRATION
CLAUSE RATHER THAN TO THE ENTIRE CONTRACT.  THUS, IT REVERSED THE
DISTRICT COURT ON BOTH POINTS. 

                                         II. 

AT THE OUTSET WE NOTE, AS WE HAVE INDICATED, THAT NO REQUEST HAS BEEN
MADE HERE FOR THE ENFORCEMENT OF THE ARBITRATION AGREEMENT INCLUDED
WITHIN THE SUBCONTRACTS.  INDEED, THE PETITIONER HAS ATTACKED NOT ONLY
THE SUBCONTRACTS, BUT ALSO THE ARBITRATION CLAUSES CONTAINED THEREIN,
AS HAVING BEEN PROCURED THROUGH FRAUD.  WITH THE PLEADINGS IN THIS
POSTURE, WE ARE OBLIGED TO PASS UPON THE PRIORITY IN DETERMINATION OF
THAT ISSUE IN THE TRIAL OF THE CASE.  IN ESSENCE, PETITIONER ALLEGES
THAT THE SUBCONTRACTS WITH HIM, AS WELL AS OTHER SUBCONTRACTORS, WERE A
FRAUDULENT SCHEME TO OBTAIN A GREAT AMOUNT OF WORK AND MATERIAL FROM
PETITIONER AND THE OTHER SUBCONTRACTORS WITHOUT MAKING PAYMENT THEREFOR
AND TO "BROWBEAT" PETITIONER AND HIS FELLOW SUBCONTRACTORS INTO
ACCEPTING MUCH LESS THAN THE VALUE OF THEIR CLAIMS.  ONE OF THE MEANS
USED TO EFFECT SUCH SCHEME WAS ALLEGED TO BE THE INSERTION IN THE
SUBCONTRACTS OF AN ARBITRATION CLAUSE REQUIRING ARBITRATION OF DISPUTES
IN NEW YORK.  UNDER EITHER THE MILLER ACT OR THE ARBITRATION ACT, IT
SEEMS CLEAR THAT THE ISSUE OF FRAUD SHOULD FIRST BE ADJUDICATED BEFORE
THE RIGHTS OF THE PARTIES UNDER THE SUBCONTRACTS CAN BE DETERMINED.  IT
APPEARS NECESSARY, THEREFORE, THAT THE DISTRICT COURT PROCEED FIRST TO
TRIAL OF THIS ISSUE.  IN CONSIDERING THE QUESTION OF THE SUFFICIENCY OF
THE PLEADINGS WITH REFERENCE TO THE ALLEGATION OF FRAUD, WE BELIEVE
THAT, AS ALLEGED HERE, THE ISSUE GOES TO THE ARBITRATION CLAUSE ITSELF,
SINCE IT IS CONTENDED THAT IT WAS TO BE USED TO EFFECT THE FRAUDULENT
SCHEME.  IF THIS ISSUE IS DETERMINED FAVORABLY TO THE PETITIONER, THERE
CAN BE NO ARBITRATION UNDER THE SUBCONTRACTS. 

IN VIEW OF OUR HOLDING HERE, IT IS NOT NECESSARY TO REACH THE ISSUES
RELATING TO ARBITRABILITY OF DISPUTES ARISING UNDER THESE
SUBCONTRACTS.  IN FACT, DISPOSITION OF THE FRAUD ISSUE MAY DISPOSE OF
THE ENTIRE SUIT.  IN THE EVENT THE FRAUD ISSUE IS DECIDED FAVORABLY TO
THE RESPONDENT, AND THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF GEORGIA SHOULD BE CALLED UPON TO DECIDE THE QUESTION OF
ARBITRABILITY OF SUCH DISPUTES AND RELATED PROBLEMS IN MILLER ACT
CASES, ITS DECISION ON THAT POINT WOULD THEN, OF COURSE, BE SUBJECT TO
REVIEW. 

WE THEREFORE REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE TO IT WITH INSTRUCTIONS THAT IT REMAND THE SAME TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

MR. JUSTICE STEWART WOULD AFFIRM THE JUDGMENT SUBSTANTIALLY FOR THE
REASONS STATED IN CHIEF JUDGE TUTTLE'S OPINION FOR THE COURT OF
APPEALS.  306 F.2D 554. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK, CONCURRING. 

WE AGREE WITH THE COURT THAT FRAUD IN THE PROCUREMENT OF AN
ARBITRATION CONTRACT, LIKE FRAUD IN THE PROCUREMENT OF ANY CONTRACT,
MAKES IT VOID AND UNENFORCEABLE AND THAT THIS QUESTION OF FRAUD IS A
JUDICIAL ONE, WHICH MUST BE DETERMINED BY A COURT.  TO ALLOW THIS
QUESTION TO BE DECIDED BY ARBITRATORS WOULD BE TO THAT EXTENT TO
ENFORCE THE ARBITRATION AGREEMENT EVEN THOUGH STEEPED IN THE GROSSEST
KIND OF FRAUD.  COMPARE ROBERT LAWRENCE CO. V. DEVONSHIRE FABRICS, 271
F.2D 402 (C.A.2D CIR. 1959).  FOR THIS REASON WE ACQUIESCE IN THE
COURT'S PRESENT DISPOSITION OF THE CASE ON THIS SINGLE ISSUE.  BUT WE
POINT OUT THAT THIS DISPOSITION LEAVES OPEN QUESTIONS OF GREAT
IMPORTANCE TO LABORERS AND MATERIALMEN WHO UNDER THE MILLER ACT ARE
ENTITLED TO HAVE THEIR CONTROVERSIES SETTLED IN INDEPENDENT COURTS OF
LAW: 

(1)  CAN A MEMBER OF THE SPECIAL CLASS OF LABORERS AND MATERIALMEN
WHICH CONGRESS, IN THE PUBLIC INTEREST, HAS PROTECTED BY FIXING THE
VENUE FOR THEIR CLAIMS UNDER THE MILLER ACT IN A PARTICULAR FEDERAL
COURT DEPRIVE HIMSELF OF THAT KIND OF REMEDY AS A CONDITION OF HIS
OBTAINING THE EMPLOYMENT OR THE PURCHASE OF HIS MATERIALS? 

(2)  CAN ANY PERSON, BEFORE ANY DISPUTE HAS ARISEN, AGREE TO
ARBITRATE ALL FUTURE DISPUTES HE MAY HAVE AND THEREBY LOSE HIS RIGHT TO
GO INTO COURT TO TRY HIS CLAIM ACCORDING TO DUE PROCESS OF LAW? 

(3)  CAN THE ARBITRATION ACT, IN LIGHT OF ITS LANGUAGE AND
LEGISLATIVE HISTORY, BE APPLIED TO LABORERS AND MATERIALMEN OR TO
CONSTRUCTION PROJECTS SUBJECT TO THE MILLER ACT? 

(4)  IS A CONSTRUCTION PROJECT, LIKE THE ONE IN THIS CASE, ONE
"INVOLVING COMMERCE" SO AS TO COME WITHIN THE RESTRICTED SCOPE OF THE
ARBITRATION ACT? 
..END :







UNITED STATES V. SINGER MANUFACTURING CO. 374 U.S. 174 


NO. 438.  ARGUED APRIL 25, 29, 1963.  - DECIDED JUNE 17, 1963.  - 205 F.
SUPP. 394, REVERSED. 


THE UNITED STATES SUED TO RESTRAIN APPELLEE, THE SOLE AMERICAN
MANUFACTURER OF HOUSEHOLD ZIGZAG SEWING MACHINES, FROM CONSPIRING WITH
TWO OF ITS COMPETITORS, AN ITALIAN MANUFACTURER AND A SWISS
MANUFACTURER, TO RESTRAIN INTERSTATE AND FOREIGN TRADE IN THE
IMPORTATION, SALE AND DISTRIBUTION OF SUCH MACHINES IN THIS COUNTRY. 
THE EVIDENCE SHOWED A COURSE OF DEALINGS BETWEEN THESE THREE
MANUFACTURERS, INCLUDING THE CROSS-LICENSING OF THEIR PATENTS ON A
NONEXCLUSIVE, WORLD-WIDE AND ROYALTY FREE BASIS AND ULTIMATELY THE SALE
AND ASSIGNMENT TO APPELLEE OF AN AMERICAN PATENT OWNED BY THE SWISS
MANUFACTURER, IN ORDER THAT IT COULD BE ENFORCED MORE EFFECTIVELY IN
THE UNITED STATES AGAINST JAPANESE MANUFACTURERS OF SUCH MACHINES, WHO
WERE UNDERPRICING APPELLEE AND THE ITALIAN AND SWISS MANUFACTURERS. 
THE DISTRICT COURT DISMISSED THE COMPLAINT.  HELD:  ON THIS RECORD,
THERE WAS A CONSPIRACY TO EXCLUDE JAPANESE COMPETITORS, IN VIOLATION OF
SEC. 1 OF THE SHERMAN ACT, AND THE JUDGMENT IS REVERSED.  PP. 175-197. 

(A)  IN CONCLUDING THAT NO CONSPIRACY WAS ESTABLISHED ON THIS RECORD,
THE DISTRICT COURT APPLIED THE WRONG STANDARD AS A MATTER OF LAW.  PP.
192-193. 

(B)  THE COURSE OF DEALINGS DISCLOSED BY THIS RECORD SHOWS THAT
APPELLEE AND THE ITALIAN AND SWISS MANUFACTURERS HAD A COMMON PURPOSE
TO SUPPRESS THE COMPETITION OF JAPANESE MACHINES IN THE UNITED STATES
THROUGH THE USE OF THE PATENT WHICH APPELLEE OBTAINED FROM THE SWISS
MANUFACTURER AND UNDER WHICH THE SWISS AND ITALIAN MANUFACTURERS WERE
THE SOLE LICENSEES.  IMPLICIT IN SUCH A COURSE OF DEALINGS WAS A
CONSPIRACY WHICH VIOLATED SEC. 1 OF THE SHERMAN ACT.  PP. 192-196. 

UNITED STATES V. SINGER MANUFACTURING CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL FROM THE JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 205 F. SUPP. 394,
DISMISSING A CIVIL ANTITRUST ACTION BROUGHT BY THE UNITED STATES
AGAINST THE SINGER MANUFACTURING COMPANY TO PREVENT AND RESTRAIN
ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT, 15 U.S.C. SECS.
1 AND 2.  THE COMPLAINT ALLEGED THAT SINGER COMBINED AND CONSPIRED WITH
TWO COMPETITORS, GEGAUF OF SWITZERLAND AND VIGORELLI OF ITALY, TO
RESTRAIN AND MONOPOLIZE AND THAT SINGER UNILATERALLY ATTEMPTED TO
MONOPOLIZE INTERSTATE AND FOREIGN TRADE IN THE IMPORTATION, SALE AND
DISTRIBUTION OF HOUSEHOLD ZIGZAG SEWING MACHINES.  THE DISTRICT COURT
DISMISSED AFTER AN EXTENDED TRIAL, CONCLUDING THAT THE CHARGES WERE
WITHOUT MERIT.  THE UNITED STATES APPEALED UNDER SEC. 2 OF THE
EXPEDITING ACT, 15 U.S.C.  SEC. 29, BUT HAS ABANDONED ITS CLAIM AS TO
ATTEMPTED MONOPOLIZATION.  WE NOTED PROBABLE JURISDICTION IN LIGHT OF
THE FACT THAT UNLESS WE DID SO THE PARTIES WOULD BE DEPRIVED OF ANY
APPELLATE REVIEW IN THE CASE.  371 U.S. 918.  WE HAVE EXAMINED THE
RECORD (1,723 PAGES) IN DETAIL, AS IS NECESSARY IN THESE DIRECT
APPEALS, (FN1) AND UPON CONSIDERATION OF IT, AS WELL AS THE BRIEFS AND
ARGUMENT OF COUNSEL, HAVE CONCLUDED THAT THERE WAS A CONSPIRACY TO
EXCLUDE JAPANESE COMPETITORS IN HOUSEHOLD ZIGZAG SEWING MACHINES AND
THAT THE JUDGMENT MUST BE REVERSED. 

                                             I. 

THE DETAILS OF THE FACTS ARE LONG AND COMPLICATED.  THE AMENDED AND
CORRECTED OPINION OF THE DISTRICT COURT INCLUDES NOT ONLY A DESCRIPTION
OF THE SEWING MACHINES INVOLVED AND THEIR OPERATION BUT ALSO AN
ANALYSIS OF THE PATENTS COVERING THEM.  WE SHALL, THEREFORE, NOT RELATE
THE FACTS IN DETAIL BUT SATISFY OURSELVES WITH THE OVERRIDING ONES. 

A. AS THE DISTRICT COURT STATED, THIS ACTION "CONCERNS ONLY THE
UNITED STATES TRADE AND COMMERCE ARISING FROM THE IMPORTATION INTO THE
UNITED STATES OF A PARTICULAR TYPE OF HOUSEHOLD SEWING MACHINE KNOWN AS
THE 'MACHINE-CARRIED MULTICAM ZIGZAG MACHINE.'"  205 F. SUPP., AT 396. 
THE ZIGZAG STITCH MACHINE PRODUCES VARIOUS ORNAMENTAL AND FUNCTIONAL
ZIGZAG STITCHES AS WELL AS STRAIGHT ONES.  THE AUTOMATIC MULTICAM
ZIGZAG MACHINE, UNLIKE THE MANUALLY OPERATED ZIGZAG AND THE REPLACEABLE
CAM MACHINE, EACH OF WHICH REQUIRES HAND MANIPULATION OR INSERTION,
OPERATES IN RESPONSE TO THE TURNING OF A KNOB OR DIAL ON THE EXTERIOR
OF THE MACHINE.  WHILE THE MULTICAM MACHINES INVOLVED HERE FUNCTION IN
SLIGHTLY DIFFERENT WAYS, ALL ARE A VARIANT OF THE SAME BASIC
PRINCIPLE. 

B. SINGER IS THE SOLE UNITED STATES MANUFACTURER OF HOUSEHOLD ZIGZAG
SEWING MACHINES.  IN ADDITION TO THE MULTICAM VARIETY AT ISSUE HERE, IT
PRODUCES REPLACEABLE CAM MACHINES BUT NOT THE MANUALLY OPERATED
ZIGZAG.  SINGER SELLS THESE MACHINES IN THIS COUNTRY THROUGH A WHOLLY
OWNED SUBSIDIARY AND IN VARIOUS FOREIGN COUNTRIES THROUGH INDEPENDENT
DISTRIBUTORS.  SINGER'S SALES COMPRISED APPROXIMATELY 61.4% OF ALL
DOMESTIC SALES IN MULTICAM ZIGZAG MACHINES IN THE UNITED STATES IN
1959.  DURING THE SAME YEAR SOME 22.6% WERE IMPORTED FROM JAPAN AND
ABOUT 16% FROM EUROPE.  IN 1958 SINGER'S PERCENTAGE WAS 69.6%, JAPANESE
IMPORTS 20.7% AND EUROPEAN IMPORTS 9.7%.  FURTHER, SINGER'S 1959 AND
1960 DOMESTIC SALES OF MULTICAM MACHINES AMOUNTED TO APPROXIMATELY $46
MILLION PER YEAR, IN EACH OF WHICH YEARS SUCH SALES ACCOUNTED FOR ABOUT
45% OF ALL ITS DOMESTIC SEWING MACHINE SALES. 

C. IT APPEARS THAT SINGER BY APRIL 29, 1953, THROUGH ITS EXPERIMENTAL
DEPARTMENT, HAD COMPLETED A DESIGN OF A MULTIPLE CAM ZIGZAG MECHANISM
IN WHAT IT CALLS THE SINGER "401" MACHINE.  IT IS DISCLOSED IN SINGER'S
JOHNSON PATENT.  IN 1953 SINGER WAS ALSO DEVELOPING ITS PERLA PATENT AS
USED IN ITS "306" REPLACEABLE CAM MACHINE AND IN 1954 ITS "319" MACHINE
CARRIED MULTIPLE CAM MACHINE.  IN SEPTEMBER OF 1953 VIGORELLI, AN
ITALIAN CORPORATION, INTRODUCED IN THE UNITED STATES A SEWING MACHINE
INCORPORATING A STACK OF CAMS WITH A SINGLE FOLLOWER.  SINGER CONCLUDED
THAT VIGORELLI HAD ON FILE APPLICATIONS COVERING ITS MACHINE IN THE
VARIOUS PATENT OFFICES IN THE WORLD AND THAT THE SINGER DESIGN WOULD
INFRINGE.  ON JUNE 10, 1955, SINGER BOUGHT FOR $8,000 A PATENT
DISCLOSING A PLURALITY OF CAMS WITH A SINGLE CAM FOLLOWER FROM CARL
HARRIS, A CANADIAN.  IT WAS BELIEVED THAT THIS PATENT, FILED JUNE 9,
1952, MIGHT BE REISSUED WITH CLAIMS COVERING THE SINGER 401 AS WELL AS
ITS 319 MACHINE, AND THAT THE REISSUED PATENT WOULD DOMINATE THE
VIGORELLI MACHINE AS WELL AS A JAPANESE ONE INTRODUCED INTO THE UNITED
STATES IN SEPTEMBER 1954 BY BROTHER INTERNATIONAL CORPORATION. 
THEREAFTER SINGER CONCLUDED THAT LITIGATION WOULD RESULT BETWEEN IT AND
VIGORELLI UNLESS A CROSS-LICENSING AGREEMENT COULD BE MADE, AND THIS
WAS AFFECTED ON NOVEMBER 17, 1955.  THE LICENSE WAS NONEXCLUSIVE, WORLD
WIDE AND ROYALTY FREE.  THE TRIAL COURT FOUND THAT SINGER'S ONLY
PURPOSE WAS TO EFFECT A CROSS-LICENSING, BUT CERTAIN CORRESPONDENCE
DOES CAST SOME SHADOW UPON THESE NEGOTIATIONS.  (FN2)  THE AGREEMENT
ALSO CONTAINED PROVISIONS BY WHICH EACH OF THE PARTIES AGREED NOT TO
BRING ANY INFRINGEMENT ACTION AGAINST THE OTHER "IN ANY COUNTRY" OR
INSTITUTE AGAINST THE OTHER ANY OPPOSITION, NULLITY OR INVALIDATION
PROCEEDINGS IN ANY COUNTRY.  IN ACCORDANCE WITH THIS AGREEMENT SINGER
WITHDREW ITS OPPOSITION TO VIGORELLI'S PATENT APPLICATION IN BRAZIL AND
VIGORELLI LATER (1958) ABANDONED A UNITED STATES INTERFERENCE TO THE
JOHNSON APPLICATION WHICH CLEARED THE WAY FOR THE JOHNSON PATENT TO
ISSUE ON DECEMBER 2 OF THAT YEAR. 

D. WHILE SINGER WAS NEGOTIATING THE CROSS-LICENSE AGREEMENT WITH
VIGORELLI IT LEARNED THAT GEGAUF, A SWISS CORPORATION, HAD A PATENT
COVERING A MULTIPLE CAM MECHANISM.  THIS PLACED AN ADDITIONAL CLOUD
OVER SINGER'S HARRIS REISSUE PLAN BECAUSE THE GEGAUF PATENT ENJOYED AN
EFFECTIVE PRIORITY DATE IN ITALY OF MAY 31, 1952.  THIS WAS NINE DAYS
EARLIER THAN SINGER'S HARRIS PATENT FILING DATE IN THE UNITED STATES. 
IN DECEMBER 1955 SINGER LEARNED THAT GEGAUF AND VIGORELLI HAD ENTERED A
CROSS-LICENSING AGREEMENT COVERING THEIR MULTIPLE CAM PATENTS SIMILAR
TO THE VIGORELLI-SINGER AGREEMENT.  IN JANUARY 1956 SINGER FOUND THAT
GEGAUF HAD PENDING AN APPLICATION IN THE UNITED STATES PATENT OFFICE
AND ASSUMED THAT IT WAS BASED ON THE SAME PRIORITY DATE, I.E., MAY 31,
1952.  IF THIS WAS TRUE SINGER COULD USE ITS HARRIS REISSUE PATENT ONLY
TO OPPOSE THROUGH INTERFERENCE THE ALLOWANCE OF BROAD CLAIMS TO
GEGAUF.  IT THEREFORE MADE PREPARATION TO NEGOTIATE WITH GEGAUF, FIRST
APPROACHING VIGORELLI IN ORDER TO ASCERTAIN HOW THE LATTER HAD INDUCED
GEGAUF TO GRANT HIM A ROYALTY-FREE LICENSE AND DROP ANY CLAIM OF
INFRINGEMENT.  SINGER MADE DIRECT ARRANGEMENTS FOR A CONFERENCE WITH
GEGAUF FOR APRIL 12, 1956, AND THE LICENSE AGREEMENT WAS MADE APRIL 14,
1956. 

THE SETTING FOR THIS MEETING WAS THAT GEGAUF HAD A DOMINANT SWISS
PATENT WITH APPLICATIONS IN GERMANY, ITALY, AND THE UNITED STATES ALL
PRIOR TO SINGER.  IN ADDITION, SINGER'S COUNSEL HAD EXAMINED GEGAUF'S
SWISS PATENT AND ADVISED THAT IT WAS VALID.  SINGER OPENED CONVERSATION
WITH INDICATIONS OF COMING LITIGATION ON THE HARRIS PATENT, CONCEALING
THE JOHNSON AND PERLA APPLICATIONS.  GEGAUF FELT SECURE IN HIS PATENT
CLAIMS BUT INSECURE WITH REFERENCE TO THE INROADS THE JAPANESE MACHINES
WERE MAKING ON THE UNITED STATES MARKET.  IT WAS THIS "LEVER" WHICH
SINGER USED TO SECURE THE LICENSE, POINTING OUT THAT WITHOUT AN
AGREEMENT GEGAUF AND SINGER MIGHT LITIGATE FOR A PROTRACTED PERIOD;
THAT THEY SHOULD NOT BE FIGHTING EACH OTHER AS THAT WOULD ONLY DELAY
THE ISSUE OF THEIR RESPECTIVE PATENTS; AND, FINALLY, THAT THEY SHOULD
LICENSE EACH OTHER AND GET THEIR RESPECTIVE PATENTS "SO THEY COULD BE
ENFORCED BY WHOEVER WOULD OWN THE PARTICULAR PATENT."  SINGER IN THE
DISCUSSIONS WORKED UPON THESE GEGAUF FEARS OF JAPANESE COMPETITION
"BECAUSE ONE OF THE STRONG POINTS" OF ITS ARGUMENT WAS THAT AN
AGREEMENT SHOULD BE MADE "IN ORDER TO FIGHT AGAINST THIS JAPANESE
COMPETITION IN THEIR BUILDING A MACHINE THAT IN ANY WAY READS ON THE
PATENTS OF OURSELVES AND OF BERNINA (GEGAUF) WHICH ARE IN CONFLICT." 
(FN3)  THE TRIAL JUDGE FOUND THAT THE ONLY PURPOSE "DISCLOSED TO
GEGAUF, AND IN FACT THE VERY ONE USED TO CONVINCE GEGAUF OF THE
ADVISABILITY OF ENTERING INTO AN AGREEMENT" WAS TO "OBTAIN PROTECTION
AGAINST THE JAPANESE MACHINES WHICH MIGHT BE MADE UNDER THE GEGAUF
PATENT; THIS SPRANG FROM A FEAR WHICH SINGER HAD GOOD REASON TO BELIEVE
TO BE WELL FOUNDED."  205 F. SUPP., AT 413.  WHILE HE FOUND SINGER'S
"UNDERLYING, DOMINANT AND SOLE PURPOSE  ...  WAS TO SETTLE THE CONFLICT
IN PRIORITY BETWEEN THE GEGAUF AND HARRIS PATENTS AND TO SECURE FOR
SINGER A LICENSE RIGHT UNDER THE EARLIER PATENT," IBID., IT IS
SIGNIFICANT THAT NO SUCH OVERRIDING PURPOSE WAS FOUND TO HAVE BEEN
DISCLOSED TO GEGAUF. 

THE LICENSE AGREEMENT COVERED (1) THE SINGER-HARRIS PATENT AND ITS
REISSUE APPLICATION IN THE UNITED STATES AND NINE CORRESPONDING FOREIGN
ONES, AND (2) THE GEGAUF SWISS, ITALIAN AND GERMAN PATENTS, AS WELL AS
THE UNITED STATES AND GERMAN APPLICATIONS COVERING THE SAME.  THE
PARTIES AGREED IN THE FIRST PARAGRAPH OF THE AGREEMENT "NOT TO DO
ANYTHING, EITHER DIRECTLY OR INDIRECTLY AND IN ANY COUNTRY, THE RESULT
OF WHICH MIGHT RESTRICT THE SCOPE OF THE CLAIMS OF THE OTHER PARTY
RELATING TO THE SUBJECT MATTER OF THE ABOVE MENTIONED PATENTS AND
PATENT APPLICATIONS."  IN ADDITION "EACH UNDERTAKES, IN ACCORDANCE WITH
THE LAWS AND REGULATIONS OF THE PATENT OFFICE CONCERNED, TO FACILITATE
THE ALLOWANCE IN ANY COUNTRY OF CLAIMS AS BROAD AS POSSIBLE, AS REGARDS
THE SUBJECT MATTER OF THE PATENTS AND PATENT APPLICATIONS REFERRED TO
ABOVE."  THE PARTIES ALSO AGREED NOT TO SUE ONE ANOTHER ON THE BASIS OF
ANY OF THE PATENTS OR APPLICATIONS.  SINGER AGREED NOT TO MAKE A
"SLAVISH" COPY OF GEGAUF'S MACHINE AND TO GIVE GEGAUF "THE AMICAL
ASSISTANCE OF ITS PATENT ATTORNEYS FOR THE DEFENSE OF ANY OF THE ABOVE
MENTIONED GEGAUF PATENTS OR PATENT APPLICATIONS AGAINST AN ACTION IN
CANCELLATION."  THE AGREEMENT MADE NO MENTION OF SINGER'S PERLA OR
JOHNSON APPLICATIONS, THE EXISTENCE OF WHICH SINGER DID NOT WISH GEGAUF
TO KNOW. 

E. APPROXIMATELY ONE WEEK AFTER THE GEGAUF CROSS-LICENSE AGREEMENT
SINGER MET WITH VIGORELLI AT MILAN, ITALY, AT THE LATTER'S REQUEST. 
VIGORELLI AT THIS MEETING SUGGESTED THAT SINGER, GEGAUF AND VIGORELLI,
HAVING ARRIVED AT THEIR RESPECTIVE AGREEMENTS, SHOULD ACT IN CONCERT IN
PROSECUTING THEIR PATENTS AGAINST ALL OTHERS IN THE FIELD.  THIS WAS
OUT OF THE QUESTION, SINGER IMMEDIATELY REPLIED, ADIVISNG THAT "WHAT
APPEARED TO US TO BE PROPER ACTION WAS FOR EACH ONE TO PROSECUTE HIS
OWN PATENTS AND TAKE CARE OF ANY CASES OF INFRINGEMENT THAT MIGHT
APPEAR."  (FN4)  THE SUBSEQUENT CONVERSATIONS AT THE MEETING ARE
REPORTED FROM THE SAME SOURCE AS FOLLOWS: 

"UPON LEARNING THAT THERE COULD BE NO JOINT ACTION BY THE THREE
COMPANIES WHO HAVE BEEN MENTIONED IN PROSECUTING PATENTS AGAINST ALL
OTHERS IN THE FIELD, THAT SUBJECT WAS DROPPED  ...  . 

"AT THIS POINT, IT SHOULD PERHAPS BE MENTIONED THAT MR. STANFORD AND
I HAVE DISCUSSED BETWEEN OURSELVES WHETHER WE SHOULD SAY ANYTHING TO
MR. GEGAUF ABOUT OUR FEELING THAT WE COULD PROSECUTE HIS PATENTS THAT
WILL BE ISSUED SOMETIME WITHIN THE NEXT FEW MONTHS IN THE UNITED STATES
BETTER THAN PERHAPS HE COULD IF HE OWNED THEM, BUT WE HAD DECIDED NOT
TO SAY ANYTHING TO MR. GEGAUF ABOUT THIS AT THIS TIME. 

"IN TALKING WITH MR. VIGORELLI'S LAWYER, MR. STANFORD DROPPED THIS
VIEW TO HIM.  THE POINT WAS IMMEDIATELY UNDERSTOOD, AND THE QUESTION
WAS RAISED IF WE WOULD HAVE ANY OBJECTION IF THEY WERE TO PASS THE WORD
ON TO MR. GEGAUF THAT THEY WERE RAISING THIS POINT.  WE SAID THAT, OF
COURSE, WE WOULD HAVE NO OBJECTION BUT THAT WE OURSELVES DID NOT WISH
TO DO THIS, AND WE WOULD NOT WANT THE SUGGESTION COMING TO MR. GEGAUF
AT THIS TIME AS FROM US.  IF THEY WANTED TO SUGGEST IT, IT WAS ALL
RIGHT.  WE WOULD, OF COURSE, UNDER SUCH ARRANGEMENT HAVE TO GIVE A
LICENSE TO GEGAUF UNDER THE PATENT THAT HE WOULD TURN OVER TO US.  MR.
STANFORD BELIEVES THAT HE WOULD BE ABLE BEFORE THE PATENT IS ISSUED TO
REWRITE THE CLAIMS AND MAKE IT STRONGER THAN IT NOW IS AND THAT IT IS A
FACT THAT, BEING IN THE UNITED STATES, WE WOULD BE BETTER ABLE TO
PROSECUTE ANY CLAIMS AGAINST THIS PATENT THAN WOULD MR. GEGAUF." 

WHILE THE TESTIMONY OF MR. STANFORD, SINGER'S PATENT ATTORNEY, VARIES
SOMEWHAT FROM THIS MEMORANDUM OF MR. WATERMAN, IT IS SUBSTANTIALLY THE
SAME.  (FN5)  THAT THE APPROACH TO GEGAUF WAS NOT CASUALLY LAID IS
SHOWN BY A MAY 7, 1956, LETTER FROM MR. STANFORD TO PATENT DEPARTMENT
EMPLOYEES OF SINGER IN WHICH HE SAID, "WHEN IN ITALY WE LAID CAREFUL
PLANS FOR GEGAUF TO BE ADVISED BY A THIRD PARTY THAT SINGER COULD BEST
HANDLE THE PATENT SITUATION IF WE OWNED THE GEGAUF U.S. PATENT.  THINK
IT WILL BEAR FRUIT.  THIS SUGGESTION, WITH THE U.S. ATTORNEY SITUATION
IS PRESSURE IN THE RIGHT DIRECTION."   MR. MAJNONI REPORTED IN JUNE
1956 THAT HE HAD THE "OPPORTUNITY OF TALKING TO THE PATENT ATTORNEYS OF
MR. F. GEGAUF ON A NUMBER OF OCCASIONS" CONCERNING "THE QUESTION OF THE
ADVANTAGE OF THE AMERICAN SINGER COMPANY BEING IN POSSESSION OF THE
DIFFERENT PATENTS WHICH MIGHT BE USEFUL IN DEFENCE OF SEWING MACHINES
WITH MULTIPLE CAMS  ...  ."  HE STATED THAT "THE PARTICULAR CHARACTER
OF THE QUESTION," I.E., "THE POSSIBILITY AND ADVANTAGE THAT THE GEGAUF
PATENT APPLICATION IN THE STATES BE ASSIGNED TO SINGER," REQUIRED THAT
THE APPROACH BE IN "SUCH A WAY AS TO PROMPT AN INITIATIVE TO THIS END
BY GEGAUF."  HE WAS HOPEFUL THAT THIS HAD BEEN ACCOMPLISHED. 
THEREAFTER ON SEPTEMBER 19 DR. S. LANDO, SINGER REPRESENTATIVE IN
MILAN, REPORTED THAT MAJNONI ADVISED THE GEGAUF "IS TODAY EFFECTIVELY
WILLING TO TRANSFER HIS PATENT APPLICATION IN THE U.S. TO THE SINGER,
WITHOUT REGARD OR WITH LITTLE REGARD TO THE FINANCIAL SIDE OF THE
MATTER."  THIS WAS BROUGHT ABOUT, HE SAID, BY DISCUSSIONS BETWEEN
VIGORELLI AND GEGAUF CONCERNING A UNITED STATES VAN TUYL PATENT AND ITS
EFFECT UPON THE VALIDITY OF THE GEGAUF GERMAN PATENT; THAT GEGAUF HAD
"MADE INFORMALLY KNOWN TO MR. VIGORELLI THAT THE WITHDRAWING OF THE
VIGORELLI APPLICATION IN THE U.S. WOULD BE GREATLY APPRECIATED, TO
PREVENT THE ISSUANCE OF A PRINTED PATENT WHEREIN THE FACT THAT THE VAN
TUYL PATENT EXISTS WILL BE MADE KNOWN TO THIRD PARTIES"; THAT VIGORELLI
HAD AGREED TO WITHDRAW HIS APPLICATION AND THAT AS A CONSEQUENCE
VIGORELLI WOULD "DROP ANY DIRECT MEANS ADAPTED TO PROTECT HIS MACHINES
IN THE U.S., BUT HE IS QUITE SURE THAT SINGER WILL TAKE CARE OF THE
PROTECTION OF THE MACHINES OF THE GENERAL TYPE OF INTEREST, BY MAKING
USE OF THE OWNED HARRIS AND GEGAUF PATENTS." 

IN THE SUMMER OF 1956 MR. F. GEGAUF, JR., AND HIS SISTER ATTENDED A
SEWING MACHINE CONVENTION AT KANSAS CITY.  ON RETURNING HOME THEY MET
WITH SINGER (MESSRS.  WATERMAN & STANFORD) IN SINGER'S OFFICE IN NEW
YORK CITY.  GEGAUF EXPRESSED CONCERN OVER THE NUMBER OF JAPANESE
MACHINES THAT HE HAD SEEN AT THE CONVENTION.  SINGER AGAIN FOUND
OPPORTUNITY TO EMPLOY THE JAPANESE PROBLEM AND STRESSED TO GEGAUF, JR.,
THE DIFFICULTIES OF ENFORCING A PATENT IN THE UNITED STATES - NAMELY,
LARGE NUMBER OF IMPORTERS, SIZE OF THE COUNTRY, NUMBER OF JUDICIAL
CIRCUITS, ETC.  SINGER EMPHASIZED THAT THESE ALL PRESENTED PROBLEMS TO
THE OWNER OF A UNITED STATES PATENT.  SINGER BEING IN THE UNITED STATES
COULD, THEY SAID, ENFORCE THE PATENT BETTER THAN GEGAUF COULD.  THEY
ASKED GEGAUF, JR., WHETHER HE THOUGHT HIS FATHER WOULD BE INTERESTED IN
SELLING THE PATENT TO SINGER.  THEREAFTER, ON SEPTEMBER 3, GEGAUF, JR.
WROTE MR. WATERMAN THAT SINGER'S SUGGESTION HAD BEEN TAKEN UP WITH
GEGAUF, SR., AND "WE MIGHT BE INTERESTED IN SUCH AN AGREEMENT."  THE
CLOSING PARAGRAPH SAYS:  "WE AGREE THAT SOMETHING SHOULD BE DONE
AGAINST JAPANESE COMPETITION IN YOUR COUNTRY AND MAYBE SOUTH AMERICA
AND ARE THEREFORE LOOKING FORWARD TO YOUR EARLY REPLY."  WATERMAN
REPLIED ON SEPTEMBER 7 THAT HE AND MR. STANFORD WOULD BE IN GERMANY ON
SEPTEMBER 18 THROUGH 25; HE ASKED THAT GEGAUF'S UNITED STATES PATENT
ATTORNEY BE DIRECTED TO MEET WITH STANFORD IN NEW YORK CITY WITH
AUTHORIZATION TO DISCLOSE THE CONTENT OF THE GEGAUF PATENT APPLICATION
SO THAT TIME MIGHT BE SAVED IN EUROPE.  MR. WATERMAN CLOSED WITH THE
BELIEF "THAT IT MAY BE POSSIBLE THAT WE CAN BOTH STRENGTHEN OUR
POSITIONS WITH RESPECT TO THE JAPANESE COMPETITION WHICH YOU MENTION
...  ."  THE CONFERENCE WAS SET FOR SEPTEMBER 23 AT WHICH TIME GEGAUF
DEMANDED $250,000 FOR THE PATENT AND NEGOTIATIONS BROKE OFF.  SINGER
WROTE DR. LANDO, ITS MILAN AGENT, ON OCTOBER 9, INFORMING HIM.  THE
LETTER CLOSED WITH THIS PARAGRAPH: 

"I THOUGHT YOU WOULD LIKE TO HAVE THIS INFORMATION IF THE SUBJECT
SHOULD COME UP IN TALKING WITH MR. VIGORELLI OR HIS ATTORNEY."  AND ON
OCTOBER 24 SINGER WROTE MR. GEGAUF ADVISING THAT THE UNITED STATES
PATENT OFFICE HAD DECLARED AN INTERFERENCE BETWEEN THEIR PATENT
APPLICATIONS; THAT THEIR CROSS-LICENSE AGREEMENT PROVIDED THAT THIS
INTERFERENCE BE SETTLED IN ACCORDANCE WITH THE PATENT LAWS OF THE
UNITED STATES; THAT "SINCE  ...  INTERFERENCE PROCEEDINGS ARE USUALLY
TIME CONSUMING AND COSTLY TO THE PARTIES INVOLVED, IT WOULD APPEAR THAT
IT WOULD BE ADVANTAGEOUS FOR US TO SETTLE THE INTERFERENCE BETWEEN
OURSELVES RATHER THAN TO CONTINUE THE PROCEEDING AND RELY ON THE UNITED
STATES PATENT OFFICE FINALLY TO AWARD A PRIORITY"; AND FINALLY SINGER
SUGGESTED THAT THE ATTORNEYS FOR THE PARTIES IN THE UNITED STATES GET
TOGETHER WITH A VIEW TO SETTLING THE INTERFERENCE.  SINGER ABANDONED
ITS INTERFERENCE ON MARCH 15, 1957, AND THE GEGAUF CLAIM WAS TAKEN
VERBATIM FROM THE SINGER HARRIS REISSUE CLAIM. 

NOTHING MORE WAS DONE BY SINGER TOWARD SECURING THE GEGAUF
APPLICATION UNTIL SEPTEMBER 12, 1957, WHEN SINGER WROTE GEGAUF THAT ITS
HARRIS APPLICATION WAS ABOUT TO BE ISSUED AS A PATENT.  IT ALSO
ANTICIPATED THAT SEVERAL OTHER PATENTS RELATING TO ORNAMENTAL STITCH
MACHINES WOULD SOON BE ISSUED TO IT AND PRESUMED GEGAUF'S APPLICATION
WOULD SOON BE GRANTED.  THEN FOLLOWED THIS PARAGRAPH: 

"WHEN I HAD THE PLEASURE OF MEETING YOU LAST FALL WE HAD SOME
DISCUSSION RELATIVE TO THE PROCEDURES THAT MIGHT BE FOLLOWED TO ENFORCE
THE PATENTS  ...  , WHEN ISSUED, AGAINST INFRINGING MANUFACTURERS WHO
PRIMARILY ARE MANUFACTURERS IN OTHER COUNTRIES SEEKING MARKETS IN THE
UNITED STATES, AND MORE AND MORE THROUGHOUT THE ENTIRE WORLD.  THESE
MANUFACTURERS ARE BRINGING OUT A LARGE VARIETY OF ORNAMENTAL STITCH
MACHINES WHICH WOULD APPEAR TO COME WITHIN THE TERMS OF CLAIMS WHICH
MAY BE AWARDED IN THE UNITED STATES WITH RESPECT OF THE AFOREMENTIONED
SINGER AND GEGAUF PATENTS.  A PROPER ENFORCEMENT OF THESE PATENTS MAY
MAKE IT NECESSARY TO INSTIGATE PATENT SUITS AGAINST EACH OF THE
IMPORTERS IN THE UNITED STATES, OF WHOM THERE WILL PERHAPS BE MANY.  I
THINK YOU WILL AGREE WITH ME THAT NEITHER ONE OF US ALONE CAN PROTECT
HIMSELF MOST EFFECTIVELY."  (FN6) 

THIS LETTER BROUGHT ON A MEETING OF THE PARTIES IN ZURICH ON OCTOBER
16, 1957.  GEGAUF'S POSITION WAS THAT, AS THE TRIAL COURT FOUND, "WHILE
IT HAD NO OBJECTION 'TO MAKING AN AGREEMENT WITH SINGER, IN ORDER TO
STOP AS FAR AS POSSIBLE JAPANESE COMPETITORS IN THE UNITED STATES
MARKET,' IT WAS WILLING TO DO SO ONLY UNDER CERTAIN CONDITIONS."  205
F. SUPP., AT 416.  FINALLY, AS THE TRIAL COURT FOUND, GEGAUF DEMANDED
$125,000 PLUS CERTAIN CONDITIONS DECLARING THAT IT "WAS CHEAP AND THAT
IT COULD NOT GO LOWER SINCE IT COULD GET MORE MONEY IF IT LICENSED THE
INVENTION.  KIRKER OF SINGER REPLIED THAT THERE WAS NO COMPARISON SINCE
A SALE TO SINGER WAS INSURANCE AGAINST COMMON COMPETITORS AND THAT WAS
WHY SINGER WAS WILLING TO PAY."  IBID.  IN ANOTHER EXCHANGE GEGAUF: 

"ADVANCED THE ARGUMENT THAT, IF STOPPED BY SINGER IN THE UNITED
STATES, THE JAPANESE MANUFACTURERS WOULD RUN TO EUROPE; TO THIS SINGER
ANSWERED THAT A GREATER RISK WAS RUN IN EUROPE IF SINGER WERE NOT
PERMITTED TO FIRST STOP INFRINGEMENTS IN THE UNITED STATES  ...  .
SINGER CONTINUED 'TO DRIVE HOME THE POINT' THAT GEGAUF STOOD TO BENEFIT
MORE BY ENFORCEMENT OF THE PATENTS IN THE UNITED STATES BECAUSE THE
'BROTHER PACESETTER' MACHINE, A BIG SELLING AND PATENT INFRINGING
JAPANESE-MADE MACHINE, WAS IN DIRECT COMPETITION WITH THE GEGAUF
MACHINE, FOR BOTH MACHINES WERE OF THE FREE ARM TYPE."  205 F. SUPP.,
AT 417. 

FINALLY GEGAUF ASSIGNED TO SINGER ITS APPLICATION AND ALL RIGHTS IN
THE INVENTION CLAIMED AND TO ALL UNITED STATES PATENTS WHICH MIGHT BE
GRANTED UNDER IT FOR $90,000.  THE ACCOMPANYING AGREEMENT PROVIDED THAT
(1) SINGER WOULD GRANT GEGAUF A NONEXCLUSIVE ROYALTY-FREE LICENSE TO
SELL IN THE UNITED STATES SEWING MACHINES MADE IN GEGAUF'S FACTORY IN
SWITZERLAND; (2) SINGER WOULD NOT INSTITUTE, WITHOUT THE CONSENT OF
GEGAUF, LEGAL PROCEEDINGS ASSERTING THE PATENTS WHEN ISSUED AGAINST
PFAFF IN GERMANY OR VIGORELLI IN ITALY WITH RESPECT TO MACHINES
MANUFACTURED IN THEIR HOME FACTORIES; AND (3) SINGER WOULD NOT MAKE A
"SLAVISH" COPY OF GEGAUF'S BERNINA MACHINE. 

F. THE GEGAUF PATENT ISSUED ON APRIL 29, 1958, AND SINGER FILED TWO
INFRINGEMENT SUITS AGAINST BROTHER, THE LARGEST DOMESTIC IMPORTER OF
JAPANESE MACHINES.  IT ALSO SUED TWO OTHER DISTRIBUTORS OF MULTICAM
MACHINES, THOSE ACTIONS TERMINATING IN CONSENT DECREES.  FINALLY, IN
JANUARY 1959, EIGHT MONTHS AFTER THE PATENT WAS ISSUED, SINGER BROUGHT
A PROCEEDING BEFORE THE UNITED STATES TARIFF COMMISSION UNDER SEC. 337
OF THE TARIFF ACT OF 1930, 19 U.S.C. SEC. 1337.  IT SOUGHT AN ORDER OF
THE PRESIDENT OF THE UNITED STATES EXCLUDING ALL IMPORTED MACHINES
COMING WITHIN THE CLAIMS OF THE GEGAUF PATENT FOR THE TERM OF THE
PATENT, NAMING EUROPEAN AS WELL AS JAPANESE INFRINGERS.  SINGER ALLEGED
THAT THE TREMENDOUS VOLUME OF IMPORTS FROM JAPAN OF HOUSEHOLD SEWING
MACHINES, OTHER THAN AUTOMATIC ZIGZAG, HAD ELIMINATED ALL DOMESTIC
MANUFACTURERS SAVE ITSELF AND ONE SMALL STRAIGHT STITCH PART-TIME
CONCERN.  IT FURTHER ALLEGED THAT THE INCREASING VOLUME OF INFRINGING
IMPORTS SIMILARLY THREATENED TO RESULT IN THE CURTAILMENT AND ULTIMATE
CESSATION OF MANUFACTURING OPERATIONS IN THE UNITED STATES IN AUTOMATIC
ZIGZAGS, WITH HEAVY LOSS OF HIGHLY PAID AND SKILLED LABOR AND LARGE
CAPITAL INVESTMENT.  AT THE TIME OF THE FILING, SINGER ALLEGED, FOREIGN
MADE MACHINES, "PRIMARILY FROM JAPAN," WERE BEING IMPORTED TO THE
EXTENT OF 50% OF THE ENTIRE SINGER SALES OF AUTOMATIC ZIGZAG MACHINES
IN THIS COUNTRY; IT REPRESENTED THAT THE AUTOMATIC ZIGZAG MACHINE IS
ITS MOST IMPORTANT PRODUCT AND THAT IT SELLS FOR A MINIMUM PRICE OF
$300; THAT INFRINGERS FROM JAPAN SELL AT NO FIRM PRICE, THE AVERAGE
BEING $100 LESS THAN SINGER'S PRICE BUT OFTEN FAR BELOW THAT FIGURE;
AND THAT THE MINIMUM PRICE IN JAPAN FOR EXPORT IS $40 TO $54. 

DURING THE HEARING ON ITS COMPLAINT SINGER WAS ASKED WHETHER PFAFF
WAS LICENSED UNDER THE GEGAUF PATENT.  SINGER REPLIED IN THE NEGATIVE
BUT BECAME SKEPTICAL AND, BELIEVING THAT IT MIGHT "HAVE A BETTER CHANCE
OF PREVAILING BEFORE THE TARIFF COMMISSION," DECIDED TO ASK GEGAUF TO
REVISE THE AGREEMENT, WHICH ORIGINALLY EXCEPTED PFAFF AND VIGORELLI
FROM ENFORCEMENT PROCEEDINGS, EXCEPT ON CONSENT OF GEGAUF.  THE LATTER
AGREED ON CONDITION THAT PHOENIX, A GERMAN MANUFACTURER WHICH WAS A
PARTY-DEFENDANT IN THE PROCEEDINGS, BE SUBSTITUTED. 

UPON COMMENCEMENT OF THIS ACTION BY THE UNITED STATES, THE COMMISSION
STAYED THE PROCEEDINGS, AND THEY ARE NOW IN ABEYANCE PENDING OUR
DISPOSITION OF THIS CASE. 

                                           II. 

FIRST IT MAY BE HELPFUL TO SET OUT WHAT IS NOT INVOLVED IN THIS
CASE.  THERE IS NO CLAIM BY THE GOVERNMENT THAT IT IS ILLEGAL FOR ONE
MERELY TO ACQUIRE A PATENT IN ORDER TO EXCLUDE HIS COMPETITORS; OR THAT
THE OWNER OF A LAWFULLY ACQUIRED PATENT CANNOT USE THE PATENT LAWS TO
EXCLUDE ALL INFRINGERS OF THE PATENT; OR THAT A LICENSEE CANNOT
LAWFULLY ACQUIRE THE COVERING PATENT IN ORDER BETTER TO ENFORCE IT ON
HIS OWN ACCOUNT, EVEN WHEN THE PATENT DOMINATES AN INDUSTRY IN WHICH
THE LICENSEE IS THE DOMINANT FIRM.  THEREFORE, WE PUT ALL THESE MATTERS
ASIDE WITHOUT DISCUSSION. 

WHAT IS CLAIMED HERE IS THAT SINGER ENGAGED IN A SERIES OF
TRANSACTIONS WITH GEGAUF AND VIGORELLI FOR AN ILLEGAL PURPOSE, I.E., TO
RID ITSELF AND GEGAUF, TOGETHER, PERHAPS, WITH VIGORELLI, OF
INFRINGEMENTS BY THEIR COMMON COMPETITORS, THE JAPANESE MANUFACTURERS. 
THE GOVERNMENT CLAIMS THAT IN THIS RESPECT THERE WERE AN IDENTITY OF
PURPOSE AMONG THE PARTIES AND ACTIONS PURSUANT THERETO THAT IN LAW
AMOUNT TO A COMBINATION OR CONSPIRACY VIOLATIVE OF THE SHERMAN ACT.  IT
CLAIMS THAT THIS CAN BE ESTABLISHED UNDER THE FINDINGS OF THE DISTRICT
COURT. 

WE NOTE FROM THE FINDINGS THAT THE IMPORTATION OF JAPANESE HOUSEHOLD
MULTICAM ZIGZAG SEWING MACHINES FIRST CAME TO NOTICE IN THE UNITED
STATES IN 1954 WITH THE INTRODUCTION OF SUCH A MACHINE BY THE BROTHER
INTERNATIONAL CORPORATION.  IT INCORPORATED THE MECHANISM OF THE
VIGORELLI ZIGZAG AND THE SINGER 401 MACHINES.  BY 1959 IMPORTATIONS OF
ALL JAPANESE HOUSEHOLD SEWING MACHINES REACHED 1,100,000, WHILE
IMPORTATIONS OF EUROPEAN MACHINES REACHED ONLY 100,000.  MOREOVER, IT
APPEARS THAT ALL BUT TWO DOMESTIC MANUFACTURERS WERE PUT OUT OF
BUSINESS IN THREE TO FOUR YEARS AFTER THE JAPANESE MACHINES FIRST
APPEARED.  THE TWO REMAINING DOMESTIC MANUFACTURERS WERE SINGER AND A
COMPANY NOT SPECIALIZING IN SEWING MACHINES, WHICH MANUFACTURED ONLY
STRAIGHT STITCH MACHINES ON ORDER FOR A SINGLE DOMESTIC CUSTOMER. 

THE TRIAL COURT FOUND THAT NO MENTION WAS MADE OF THE JAPANESE
MACHINES DURING THE NEGOTIATIONS COVERING THE VIGORELLI CROSS-LICENSING
AGREEMENT WITH SINGER.  IT FIRST APPEARED DURING THE GEGAUF LICENSING
NEGOTIATIONS WHERE AT THOSE MEETINGS SINGER USED "PROTECTION AGAINST
THE JAPANESE" AS "ONE OF THE STRONG POINTS" ON THE CROSS-LICENSING OF
THE GEGAUF AND HARRIS PATENTS AND APPLICATIONS.  HERE, THOUGH THE TRIAL
COURT STATED THAT THE "DOMINANT AND SOLE PURPOSE OF THE LICENSE
AGREEMENT WAS TO SETTLE THE CONFLICT IN PRIORITY," IT SPECIFICALLY, IN
THE NEXT PARAGRAPH OF ITS OPINION, FOUND A "SECONDARY" PURPOSE, I.E.,
PROTECTION AGAINST THE JAPANESE MACHINES WHICH WERE INFRINGING THE
GEGAUF PATENT.  IN THIS CONNECTION IT IS MOST IMPORTANT TO NOTE ANOTHER
FINDING OF THE TRIAL COURT, NAMELY, THAT THIS PURPOSE TO EXCLUDE THE
JAPANESE "WAS THE ONLY ONE DISCLOSED TO GEGAUF, AND IN FACT THE VERY
ONE USED TO CONVINCE GEGAUF OF THE ADVISABILITY OF ENTERING INTO AN
AGREEMENT."  205 F. SUPP., AT 413.  UNDER THESE FINDINGS IT CANNOT BE
SAID THAT SETTLEMENT OF THE CONFLICT IN PRIORITY WAS THE "DOMINANT AND
SOLE PURPOSE" OF SINGER.  INDEED, THE TWO FINDINGS ARE IN DIRECT
CONFLICT.  FURTHERMORE THE FACT THAT THE CROSS-LICENSE AGREEMENT
PROVIDED THAT SINGER AND GEGAUF WOULD FACILITATE THE ALLOWANCE TO EACH
OTHER OF CLAIMS "AS BROAD AS POSSIBLE" INDICATES A DESIRE TO SECURE AS
BROAD COVERAGE FOR THE PATENT AS POSSIBLE, THE MORE EFFECTIVELY TO
STIFLE COMPETITION, THE OVERWHELMING PERCENTAGE OF WHICH WAS JAPANESE. 
THIS EFFECT WAS ACCOMPLISHED, FOR WHEN THE PATENT OFFICE PLACED THE
HARRIS (SINGER) AND GEGAUF PATENTS IN INTERFERENCE, SINGER ABANDONED
THE PROCEEDING, THUS FACILITATING THE ISSUANCE OF BROAD CLAIMS TO
GEGAUF.  (FN7)    WE NOW COME TO THE ASSIGNMENT OF THE GEGAUF PATENT TO
SINGER.  THE TRIAL COURT FOUND:  (1) THAT SIX DAYS AFTER THE LICENSE
AGREEMENT WAS MADE WITH GEGAUF, SINGER PROCEEDED TO ITALY WHERE A
CONFERENCE WAS HELD WITH VIGORELLI.  AT THIS MEETING TWO EVENTS TOOK
PLACE THAT LED TO THE LATER ACQUISITION OF THE PATENT BY SINGER.  THE
FIRST WAS VIGORELLI'S PROPOSAL THAT SINGER, GEGAUF AND HIMSELF ACT "IN
CONCERT AGAINST OTHERS" IN ENFORCING THE PATENT.  THIS WAS REJECTED BY
SINGER'S REPRESENTATIVES, WHO SAID IT WAS BEST FOR EACH "TO PROSECUTE
HIS OWN PATENTS."  AT THE SAME MEETING, HOWEVER, SINGER PROPOSED TO
VIGORELLI THAT IT COULD PROSECUTE THE GEGAUF PATENT IN THE UNITED
STATES BETTER THAN GEGAUF AND, AFTER VIGORELLI AGREED, SOLICITED HIS
HELP IN GETTING GEGAUF TO AGREE TO ASSIGN THE PATENT.  (2) VIGORELLI
WENT TO GEGAUF "ACTING AS SINGER'S AGENT," 205 F. SUPP., AT 414, AND
CONVINCED THE LATTER SUFFICIENTLY FOR HIM TO WRITE SINGER THAT HE
FAVORED THE IDEA OF DOING SOMETHING "AGAINST JAPANESE COMPETITION." 
(3) SINGER REPLIED TO GEGAUF BY LETTER THAT AN ARRANGEMENT COULD BE
REACHED "EQUALLY ADVANTAGEOUS TO BOTH."  (4) SINGER WENT TO EUROPE BUT
WAS NOT ABLE TO AGREE ON GEGAUF'S TERMS AND THEREAFTER, IN SEPTEMBER
1957, WROTE THE LATTER THAT "THEIR MUTUAL INTERESTS REQUIRED THAT
SOMETHING BE DONE TO PROTECT THEMSELVES FROM THE JAPANESE INFRINGING
MACHINES."  (5) GEGAUF REPLIED THAT HE WOULD BE HAPPY TO MEET SINGER TO
DISCUSS "MUTUAL ENFORCEMENT" OF ITS UNITED STATES APPLICATION AND THE
HARRIS REISSUE.  THEN, (6) IN THE FINAL CONFERENCES IN EUROPE GEGAUF
TOLD SINGER THAT HE HAD NO OBJECTION "TO MAKING AN AGREEMENT WITH
SINGER, IN ORDER TO STOP AS FAR AS POSSIBLE JAPANESE COMPETITORS IN THE
UNITED STATES MARKET."  FURTHER, THE TRIAL COURT FOUND THAT SINGER
ASSURED GEGAUF THAT "SINGER WAS INSURANCE AGAINST COMMON COMPETITORS"
AND GEGAUF'S FEARS THAT IF SINGER STOPPED THE JAPANESE INFRINGEMENTS IN
THE UNITED STATES THEY (THE JAPANESE) WOULD GO TO EUROPE, WHERE GEGAUF
WAS NOT IN AS GOOD A POSITION TO STOP THEM, WERE UNFOUNDED BECAUSE A
GREATER RISK WAS RUN IN EUROPE IF SINGER WERE NOT PERMITTED TO FIRST
STOP INFRINGEMENTS IN THE UNITED STATES.  FINALLY, THE COURT FOUND THAT
(7) SINGER WAS DETERMINED "TO DRIVE HOME THE POINT" THAT GEGAUF STOOD
TO BENEFIT MORE BY ENFORCEMENT OF THE PATENTS IN THE UNITED STATES
BECAUSE THE "BROTHER PACESETTER" MACHINE, A BIG SELLING AND PATENT
INFRINGING JAPANESE-MADE MACHINE, WAS IN DIRECT COMPETITION WITH THE
GEGAUF MACHINE IN THE UNITED STATES.  AS THE TRIAL COURT PUT IT, "THE
POINT APPARENTLY REACHED HOME" - GEGAUF ULTIMATELY ASSIGNED THE PATENT
FOR ONLY $90,000, MUCH LESS THAN ITS ORIGINAL ASKING PRICE AND MUCH
LESS THAN GEGAUF BELIEVED IT WOULD REALIZE ANNUALLY FROM A LICENSE
GRANT.  GEGAUF'S BELIEFS AS TO THE INADEQUACY OF THE MONETARY
CONSIDERATION WERE WELL FOUNDED, SINCE SINGER RECEIVED MORE THAN TWICE
THAT AMOUNT IN A TWO-YEAR PERIOD FROM THE ONE LICENSE IT GRANTED UNDER
THE GEGAUF PATENT.  THAT LICENSE, INCIDENTALLY, WAS TO SEARS, ROEBUCK &
COMPANY, WHICH IMPORTED MACHINES FROM EUROPE. 

                              III. 

AS WE HAVE NOTED WITH REFERENCE TO THE CROSS-LICENSE AGREEMENT, THE
TRIAL COURT DECIDED THAT "THE UNDISPUTED FACTS SUPPORT NO CONCLUSION
OTHER THAN THAT THE UNDERLYING, DOMINANT AND SOLE PURPOSE OF THE
LICENSE AGREEMENT WAS TO SETTLE THE CONFLICT IN PRIORITY BETWEEN THE
GEGAUF AND HARRIS PATENTS ...  ."  WE HAVE REJECTED THIS CONCLUSION ON
THE TRIAL COURT'S OWN FINDING IN THE NEXT PARAGRAPH OF THE OPINION THAT
SINGER'S "SECONDARY" PURPOSE, THE ONLY ONE DISCLOSED TO GEGAUF, WAS ITS
"DESIRE TO OBTAIN PROTECTION AGAINST THE JAPANESE MACHINES WHICH MIGHT
BE MADE UNDER THE GEGAUF PATENT."  LIKEWISE WE REJECT AS A QUESTION OF
LAW, THE COURT'S INFERENCE THAT THE ATTITUDE OF SUSPICION, WARINESS AND
SELF-PRESERVATION OF THE PARTIES NEGATED A CONSPIRACY.  SEE UNITED
STATES V. LINE MATERIAL CO., 333 U.S. 287, 297 (1948); UNITED STATES V.
MASONITE CORP., 316 U.S. 265, 280-282 (1942); UNITED STATES V. GENERAL
ELECTRIC CO., 80 F. SUPP. 989, 997-998 (S.D.N.Y. 1948). 

THE TRIAL COURT HELD THAT THE FACT THAT SINGER HAD A PURPOSE, WHICH
"GEGAUF WELL KNEW," OF ENFORCING THE PATENT UPON ITS ACQUISITION, THAT
THE ENFORCEMENT "WOULD MOST CERTAINLY INCLUDE JAPANESE MANUFACTURERS
WHO WERE THE PRINCIPAL INFRINGERS," AND "THAT GEGAUF SHARED WITH SINGER
A COMMON CONCERN OVER JAPANESE COMPETITION" DID NOT ESTABLISH A
CONSPIRACY.  205 F. SUPP., AT 419.  GIVEN THE COURT'S OWN FINDINGS AND
THE CLEAR IMPORT OF THE RECORD, IT IS APPARENT THAT ITS CONCLUSIONS
WERE PREDICATED UPON "AN ERRONEOUS INTERPRETATION OF THE STANDARD TO BE
APPLIED  ...  ."   THUS, "BECAUSE OF THE NATURE OF THE DISTRICT COURT'S
ERROR WE ARE REVIEWING A QUESTION OF LAW, NAMELY, WHETHER THE DISTRICT
COURT APPLIED THE PROPER STANDARD TO ESSENTIALLY UNDISPUTED FACTS." 
UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29, 44 (1960).  THERE IN
A DISCUSSION OF A LIKE PROBLEM WE HELD THAT "THE INFERENCE OF AN
AGREEMENT IN VIOLATION OF THE SHERMAN ACT" IS NOT "MERELY LIMITED TO
PARTICULAR FACT COMPLEXES," IBID., CITING UNITED STATES V. BAUSCH &
LOMB OPTICAL CO., 321 U.S. 707 (1944), AND FEDERAL TRADE COMM'N V.
BEECH-NUT PACKING CO., 257 U.S. 441 (1922).  "BOTH CASES," THE COURT
CONTINUED, "TEACH THAT JUDICIAL INQUIRY IS NOT TO STOP WITH A SEARCH OF
THE RECORD FOR EVIDENCE OF PURELY CONTRACTUAL ARRANGEMENTS  ...  ." 
IBID.  WHETHER THE CONSPIRACY WAS ACHIEVED BY AGREEMENT, BY TACIT
UNDERSTANDING, OR BY "ACQUIESCENCE  ...  COUPLED WITH ASSISTANCE IN
EFFECTUATING ITS PURPOSE IS IMMATERIAL."  UNITED STATES V. BAUSCH &
LOMB, SUPRA, AT 723.  HERE THE PATENT WAS PUT IN SINGER'S HANDS TO
ACHIEVE THE COMMON PURPOSE OF ENFORCEMENT "EQUALLY ADVANTAGEOUS TO
BOTH" SINGER AND GEGAUF AND TO VIGORELLI AS WELL.  (FN8)  WHAT SINGER
HAD REFUSED VIGORELLI, I.E., ACTING "IN CONCERT AGAINST OTHERS," WAS
THUS ACHIEVED BY THE SIMPLE EXPEDIENT OF TRANSFERRING THE PATENT TO
SINGER. 

THUS BY ENTWINING ITSELF WITH GEGAUF AND VIGORELLI IN SUCH A PROGRAM
SINGER WENT FAR BEYOND ITS CLAIMED PURPOSE OF MERELY PROTECTING ITS OWN
401 MACHINE - IT WAS PROTECTING GEGAUF AND VIGORELLI, THE SOLE
LICENSEES UNDER THE PATENT AT THE TIME, UNDER THE SAME UMBRELLA.  THIS
THE SHERMAN ACT WILL NOT PERMIT.  AS THE COURT HELD IN FREY & SONS,
INC., V. CUDAHY PACKING CO., 256 U.S. 208, 210 (1921), THE CONSPIRACY
ARISES IMPLICITLY FROM THE COURSE OF DEALING OF THE PARTIES, HERE
RESULTING IN SINGER'S OBLIGATION TO ENFORCE THE PATENT TO THE BENEFIT
OF ALL THREE PARTIES.  WHILE THERE WAS NO CONTRACT SO STIPULATING, THE
FACTS AS FOUND BY THE TRIAL COURT INDICATE A COMMON PURPOSE (FN9) TO
SUPPRESS THE JAPANESE MACHINE COMPETITION IN THE UNITED STATES THROUGH
THE USE OF THE PATENT, WHICH WAS SECURED BY SINGER ON THE ASSURANCES TO
GEGAUF AND ITS COLICENSEE, VIGORELLI, THAT SUCH WOULD CERTAINLY BE THE
RESULT.  SEE FEDERAL TRADE COMM'N V. BEECH-NUT PACKING CO., SUPRA.
SINGER CANNOT, OF COURSE, CONTEND THAT IT SOUGHT THE ASSIGNMENT OF THE
PATENT MERELY TO ASSURE THAT IT COULD PRODUCE AND SELL ITS MACHINES,
SINCE THE PRECEDING CROSS-LICENSE AGREEMENT HAD ASSURED THAT RIGHT. 
THE FACT THAT THE ENFORCEMENT PLAN LIKEWISE SERVED SINGER IS OF NO
CONSEQUENCE, THE CONTROLLING FACTOR BEING THE OVERALL COMMON DESIGN,
I.E., TO DESTROY THE JAPANESE SALE OF INFRINGING MACHINES IN THE UNITED
STATES BY PLACING THE PATENT IN SINGER'S HANDS THE BETTER TO ACHIEVE
THIS RESULT.  IT IS THIS CONCERTED ACTION TO RESTRAIN TRADE, CLEARLY
ESTABLISHED BY THE COURSE OF DEALINGS, THAT CONDEMNS THE TRANSACTIONS
UNDER THE SHERMAN ACT.  AS WE SAID IN UNITED STATES V. PARKE, DAVIS &
CO., SUPRA, AT 44, "WHETHER AN UNLAWFUL COMBINATION OR CONSPIRACY IS
PROVED IS TO BE JUDGED BY WHAT THE PARTIES ACTUALLY DID RATHER THAN BY
THE WORDS THEY USED." 

MOREOVER THIS OVERRIDING COMMON DESIGN TO EXCLUDE THE JAPANESE
MACHINES IN THE UNITED STATES IS CLEARLY ILLUSTRATED BY SINGER'S ACTION
BEFORE THE UNITED STATES TARIFF COMMISSION.  LESS THAN EIGHT MONTHS
AFTER THE PATENT WAS ISSUED IT STARTED THIS EFFORT TO BAR INFRINGERS IN
ONE SWEEP.  AS AN AMERICAN CORPORATION, IT WAS THE SOLE COMPANY OF THE
THREE THAT WAS ABLE TO BRING SUCH AN ACTION.  WHEN IT APPEARED THAT THE
REFERENCES TO PFAFF IN THE ASSIGNMENT AGREEMENT THREATENED THE SUCCESS
OF THE TARIFF COMMISSION PROCEEDING, GEGAUF CONSENTED TO THE DELETION
OF PFAFF FROM THE AGREEMENT.  THIS MANEUVER WAS FOR THE PURPOSE, AS THE
TRIAL COURT FOUND, OF GIVING SINGER "'A BETTER CHANCE OF PREVAILING
BEFORE THE TARIFF COMMISSION' IN ITS EFFORTS TO EXCLUDE" INFRINGING
MACHINES.  205 F. SUPP., AT 427.  WHILE THE TARIFF APPLICATION WAS
LEVELED AGAINST NINE EUROPEAN AS WELL AS THE JAPANESE COMPETITIORS, THE
ALLEGATIONS WERE CLEARLY BEAMED AT THE INFRINGING JAPANESE MACHINES TO
WHICH SINGER ATTRIBUTED THE DESTRUCTION OF ALL AMERICAN DOMESTIC
HOUSEHOLD SEWING MACHINE COMPANIES SAVE ITSELF.  AS THE PARTIES TO THE
AGREEMENTS AND ASSIGNMENT WELL KNEW, AND AS THE TRIAL COURT ITSELF
STATED, "BY FAR THE LARGEST NUMBER OF INFRINGERS OF THE GEGAUF PATENT
AND INVENTION WERE THE JAPANESE."  205 F. SUPP., AT 418. 

IT IS STRONGLY URGED UPON US THAT APPLICATION OF THE ANTITRUST LAWS
IN THIS CASE WILL HAVE A SIGNIFICANTLY DELETERIOUS EFFECT ON SINGER'S
POSITION AS THE SOLE REMAINING DOMESTIC PRODUCER OF ZIGZAG SEWING
MACHINES FOR HOUSEHOLD USE, THE MARKET FOR WHICH HAS BEEN INCREASINGLY
PREEMPTED BY FOREIGN MANUFACTURERS.  WHETHER ECONOMIC CONSEQUENCES OF
THIS CHARACTER WARRANT RELAXATION OF THE SCOPE OF ENFORCEMENT OF THE
ANTITRUST LAWS, HOWEVER, IS A POLICY MATTER COMMITTED TO CONGRESSIONAL
OR EXECUTIVE RESOLUTION.  IT IS NOT WITHIN THE PROVINCE OF THE COURTS,
WHOSE FUNCTION IS TO APPLY THE EXISTING LAW.  IT IS WELL SETTLED THAT
"BEYOND THE LIMITED MONOPOLY WHICH IS GRANTED, THE ARRANGEMENTS BY
WHICH THE PATENT IS UTILIZED ARE SUBJECT TO THE GENERAL LAW," UNITED
STATES V. MASONITE CORP., SUPRA, AT 277, AND IT "IS EQUALLY WELL
SETTLED THAT THE POSSESSION OF A VALID PATENT OR PATENTS DOES NOT GIVE
THE PATENTEE ANY EXEMPTION FROM THE PROVISIONS OF THE SHERMAN ACT
BEYOND THE LIMITS OF THE PATENT MONOPOLY.  BY AGGREGATING PATENTS IN
ONE CONTROL, THE HOLDER OF THE PATENTS CANNOT ESCAPE THE PROHIBITIONS
OF THE SHERMAN ACT."  UNITED STATES V. LINE MATERIAL CO., SUPRA, AT
308.  THAT ACT IMPOSES STRICT LIMITATIONS ON THE CONCERTED ACTIVITIES
IN WHICH PATENT OWNERS MAY LAWFULLY ENGAGE, SEE UNITED STATES V. UNITED
STATES GYPSUM CO., 333 U.S. 364 (1948); UNITED STATES V. LINE MATERIAL
CO., SUPRA; UNITED STATES V. NATIONAL LEAD CO., 63 F. SUPP. 513, AFF'D,
332 U.S. 319 (1947), AND THOSE LIMITATIONS HAVE BEEN EXCEEDED IN THIS
CASE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED FOR THE ENTRY OF AN APPROPRIATE DECREE IN ACCORDANCE WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  WHATEVER MAY HAVE BEEN THE WISDOM OF THE EXPEDITING ACT IN
PROVIDING DIRECT APPEALS IN ANTITRUST CASES AT THE TIME OF ITS
ENACTMENT IN 1903, TIME HAS PROVEN IT UNSATISFACTORY.  SEE, E.G.,
GESELL, A MUCH NEEDED REFORM - REPEAL THE EXPEDITING ACT FOR ANTITRUST
CASES, IN 1961 N.Y. STATE BAR ASSN. ANTITRUST L. SYM.  98 (CCH). 
DIRECT APPEALS NOT ONLY PLACE A GREAT BURDEN ON THE COURT BUT ALSO
DEPRIVE US OF THE VALUABLE ASSISTANCE OF THE COURTS OF APPEALS. 

FN2  "UNLESS WE ARE ABLE TO COME TO SOME AGREEMENT WITH VIGORELLI, WE
WILL OF COURSE INSTITUTE PROCEEDINGS IN ITALY IN DUE TIME, SEEKING TO
INVALIDATE SUCH PATENT AS VIGORELLI HAS RECEIVED AND WE WILL DO THE
SAME THING IN FRANCE AND OTHER COUNTRIES IN ACCORDANCE WITH THE PROPER
PROCEDURE IN EACH COUNTRY.  THIS LITIGATION WILL UNDOUBTEDLY RESULT
EITHER IN THE CANCELLING OF THEIR PATENT AND PATENT APPLICATIONS, OR AT
ANY RATE, SEVERELY LIMIT THE CLAIMS.  ON THE OTHER HAND, IF WE WERE TO
REFRAIN FROM INSTITUTING SUCH PROCEEDINGS AND IF WE WERE TO WITHDRAW
THE BRAZILIAN OPPOSITION, THEIR APPLICATIONS MIGHT DEVELOP INTO RATHER
BROAD PATENTS WHICH WOULD HAVE A DOMINATING POSITION IN THE INDUSTRY. 
WE OURSELVES HOLD SOME PATENTS AND HAVE PATENT APPLICATIONS PENDING
WHICH WOULD MAKE TROUBLE FOR VIGORELLI IF WE WERE ENGAGED IN LITIGATION
WITH THEM, OR WHICH WOULD GREATLY STRENGTHEN AND BROADEN THE PATENT
SITUATION IF OUR POSITION AND THEIRS COULD BE POOLED BY SOME MUTUAL
AGREEMENT."  LETTER FROM M.C. LIGHTNER, SINGER PRESIDENT, TO W.P. EVANS
OF SINGER'S ITALIAN CORPORATION, SEPTEMBER 12, 1955. 

FN3  MEMORANDUM FROM M.L. WATERMAN, SINGER VICE PRESIDENT, TO M.C.
LIGHTNER, APRIL 13, 1956. 

FN4  M.L. WATERMAN, NOTES DICTATED AT MILAN, APRIL 20, 1956. 

FN5  MR. STANFORD TESTIFIED THAT A MR. MAJNONI, PATENT ATTORNEY
PRESENT FOR VIGORELLI, CAME OVER TO HIM AS THE DISCUSSIONS (WHICH WERE
IN ITALIAN AND ENGLISH AS SOME PARTICIPANTS SPOKE ONLY THEIR NATIVE
TONGUE) WERE MORE OR LESS OVER AND SAID THAT HE WOULD LIKE TO SPEAK IN
ENGLISH.  HE ASKED "ABOUT THE SITAUTION HERE IN THE UNITED STATES
BETWEEN GEGAUF AND THE HARRIS PATENT  ...  ."  STANFORD REPLIED "THAT
THEY WOULD PROBABLY BE LOCKED IN INTERFERENCE VERY SHORTLY; THAT GEGAUF
WAS AHEAD OF US AND THAT I WAS VERY MUCH AFRAID THAT GEGAUF WAS GOING
TO WIN THE INTERFERENCE, THAT I WAS SORRY BECAUSE I FELT THAT IF WE HAD
THE CLAIMS AND WERE ABLE TO KEEP THEM IN THE HARRIS PATENT, WE WOULD BE
ABLE TO ENFORCE THEM BETTER THAN COULD (GEGAUF) IF HE HAD A PATENT  ...
."  STANFORD TOLD MAJNONI THAT SINGER HAD MADE NO APPROACHES TO GEGAUF
BECAUSE THE PRICE WOULD "GO SKY HIGH"; MAJNONI SAID THAT HE KNEW MR.
GEGAUF'S ATTORNEY, HAD "FREQUENT CONTACTS WITH HIM" AND OFFERED TO
APPROACH HIM.  STANFORD SAID HE "DIDN'T THINK THAT WOULD DO ANY GOOD;
THAT I THOUGHT THAT WOULD BE JUST AS BAD."  MAJNONI REPLIED THAT HE
WOULD LET HIM THINK IT CAME DIRECTLY FROM HIM.  "I THINK," HE ADDED,
"IT WOULD BE ADVANTAGEOUS  ...  IF SINGER OWNED THE CLAIMS  ...  ." 
STANFORD INTERPRETED THIS TO MEAN THAT MAJNONI THOUGHT IT WOULD BE
BETTER FOR VIGORELLI "IF SINGER, WHO WAS A CORPORATION IN THE UNITED
STATES, OWNED THE GEGAUF PATENT AND THEY WOULD RATHER HAVE SINGER OWN
IT THAN HAVE GEGAUF BECAUSE THEY THOUGHT THAT WE COULD ENFORCE IT
BETTER OR WERE IN A BETTER POSITION TO ENFORCE IT."    FN6  THIS LETTER
IS SUBSTANTIALLY THE SAME AS THE PROPOSED LETTER WHICH MR. STANFORD
SENT MR. WATERMAN FOR TRANSMITTAL TO GEGAUF, EXCEPT THAT THE QUOTED
PARAGRAPH WAS PHRASED MORE DIRECTLY IN THE PROPOSED LETTER: 

"YOU ARE NO DOUBT AWARE THAT RECENTLY THE MANY JAPANESE SEWING
MACHINE MANUFACTURERS HAVE BROUGHT OUT A LARGE VARIETY OF ORNAMENTAL
STITCH MACHINES WHICH WOULD APPEAR TO COME WITHIN THE TERMS OF CLAIMS
WHICH MAY BE AWARDED IN THE UNITED STATES WITH RESPECT OF THE ABOVE
GEGAUF AND SINGER PATENTS.  WE HAVE REASON TO BELIEVE THAT ALL OF THE
VERY MANY UNITED STATES SEWING MACHINE IMPORTERS WILL WISH TO DEAL IN
SUCH JAPANESE ORNAMENTAL STITCH MACHINES, AND THAT PATENT SUITS AGAINST
EACH OF THESE IMPORTERS MAY BE NECESSARY IF OUR RESPECTIVE PATENTS ARE
TO BE ENFORCED. 

"YOU MAY AGREE WITH US THAT UNDER THE TERMS OF OUR PRESENT AGREEMENT
NEITHER PARTY IS IN A POSITION EFFECTIVELY TO PROTECT ITSELF THROUGH
PATENTS IN THE UNITED STATES WITH RESPECT TO THIS THREATENED
COMPETITION, PARTICULARLY WHEN THE COMPETING MACHINES ARE COPIES AFTER
BOTH BERNINA AND SINGER MODELS." 

FN7  SINCE WE HAVE CONCLUDED THAT THE ENTIRE COURSE OF DEALINGS
BETWEEN THE PARTIES, INCLUDING THE CROSS-LICENSE AGREEMENT, ESTABLISHES
A CONSPIRACY OR COMBINATION IN VIOLATION OF THE SHERMAN ACT, WE NEED
NOT AND DO NOT PASS THE GOVERNMENT'S CONTENTION THAT THE CROSS-LICENSE
AGREEMENT AND THE INTERFERENCE SETTLEMENT ARE ILLEGAL APART FROM THE
OTHER CIRCUMSTANCES PRESENT HERE.  AS TO THIS QUESTION, SEE NOTE, 31
GEO. WASH. L. REV. 643 (1963). 

FN8  IN ADDITION, THOUGH THE PARTIES DO NOT DISCUSS THE EFFECT OF THE
FINAL ARRANGEMENT, IT WOULD PERMIT BOTH GEGAUF AND VIGORELLI TO SELL
MACHINES UNDER THE PATENT IN THE UNITED STATES.  THE FACT THAT THIS
MIGHT BE CONSEQUENTIAL IS INDICATED BY THE STATISTIC THAT IN 1959
EUROPE FURNISHED 16% OF THE MACHINES SOLD IN THE UNITED STATES. 

FN9  THE TRIAL COURT'S FINDINGS, AS WE HAVE NOTED, ARE INCONSISTENT
IN SOME RESPECTS.  THE COURT REPEATEDLY DESCRIBED THE ROLE OF THE
PARTIES'"MUTUAL INTERESTS" IN THE ACHIEVEMENT OF AN AGREEMENT TO ASSIGN
THE GEGAUF PATENT TO SINGER.  IT ALSO FOUND THAT "GEGAUF SHARED WITH
SINGER A COMMON CONCERN OVER JAPANESE COMPETITION," 205 F. SUPP., AT
419, AND THAT BOTH PARTIES KNEW THAT SINGER WANTED THE PATENT IN ORDER
TO ENFORCE IT AGAINST THEIR COMMON COMPETITORS, THE JAPANESE.  STILL,
AT ONE POINT, THE COURT STATES THAT "THEIR DEALINGS WERE CHARACTERIZED
BY AN ABSENCE OF UNITY OR IDENTITY OF ANY COMMON PURPOSE OR MOTIVE." 
205 F. SUPP., AT 418.  INSOFAR AS THAT CONCLUSION DERIVED FROM THE
COURT'S APPLICATION OF AN IMPROPER STANDARD TO THE FACTS, IT MAY BE
CORRECTED AS A MATTER OF LAW.  INSOFAR AS THE CONCLUSION IS BASED ON
"INFERENCES DRAWN FROM DOCUMENTS OR UNDISPUTED FACTS,  ...  RULE 52(A)
OF THE RULES OF CIVIL PROCEDURE IS APPLICABLE."  UNITED STATES V.
UNITED STATES GYPSUM CO., 333 U.S. 364, 394 (1948).  THE RULE WAS THERE
STATED THAT "A FINDING IS 'CLEARLY ERRONEOUS' WHEN ALTHOUGH THERE IS
EVIDENCE TO SUPPORT IT, THE REVIEWING COURT ON THE ENTIRE EVIDENCE IS
LEFT WITH THE DEFINITE AND FIRM CONVICTION THAT A MISTAKE HAS BEEN
COMMITTED."  ID., AT 395.  THE EVIDENCE HERE, INCLUDING MANY FINDINGS
OF THE TRIAL COURT, CLEARLY COMPELS THE CONCLUSION THAT THE PARTIES'
CONCERTED ACTIVITIES WERE MOTIVATED BY A COMMON PURPOSE, AND THE
COURT'S CONCLUSION TO THE CONTRARY MUST BE REGARDED AS CLEARLY
ERRONEOUS.  UNITED STATES V. UNITED STATES GYPSUM CO., SUPRA; SEE
PACIFIC PORTLAND CEMENT CO. V. FOOD MACH. & CHEM.  CORP., 178 F.2D 541
(C.A. 9TH CIR. 1949). 

MR. JUSTICE WHITE, CONCURRING. 

THERE ARE TWO PHASES TO THE GOVERNMENT'S CASE HERE:  ONE, THE
CONSPIRACY TO EXCLUDE THE JAPANESE FROM THE MARKET, AND THE OTHER, THE
COLLUSIVE TERMINATION OF A PATENT OFFICE INTERFERENCE PROCEEDING
PURSUANT TO AN AGREEMENT BETWEEN SINGER AND GEGAUF TO HELP ONE ANOTHER
TO SECURE AS BROAD A PATENT MONOPOLY AS POSSIBLE, INVALIDITY
CONSIDERATIONS NOTWITHSTANDING.  THE COURT FINDS A VIOLATION OF SEC. 1
OF THE SHERMAN ACT IN THE TOTALITY OF SINGER'S CONDUCT, AND INTIMATES
NO VIEWS AS TO EITHER PHASE OF THE GOVERNMENT'S CASE STANDING ALONE. 
SINCE, IN MY VIEW, EITHER BRANCH OF THE CASE IS SUFFICIENT TO WARRANT
RELIEF, I JOIN THE COURT'S OPINION, EXCEPT FOR FOOTNOTE 1, WITH WHICH I
DISAGREE. 

AS TO THE CONSPIRACY TO EXCLUDE THE JAPANESE, THERE IS INVOLVED, AS
THE COURT POINTS OUT, MORE THAN THE TRANSFER OF THE PATENT FROM ONE
COMPETITOR TO ANOTHER; IMPLICIT IN THE ARRANGEMENT IS SINGER'S
UNDERTAKING TO ENFORCE THE PATENT ON BEHALF OF BOTH ITSELF AND GEGAUF. 
MOREOVER, SINGER WAS THE DOMINANT MANUFACTURER IN THE AMERICAN SEWING
MACHINE INDUSTRY AND WAS ACQUIRING A PATENT WHICH DOMINATED THE
MULTICAM FIELD, AN ASPECT OF THIS CASE WHICH IN ITSELF RAISES SERIOUS
QUESTIONS, IN MY VIEW, AND WHICH IS SAVED BY THE COURT FOR FUTURE
CONSIDERATION.  SEE P. 189, SUPRA. 

MORE MUST BE SAID ABOUT THE INTERFERENCE SETTLEMENT.  IN 1956,
SINGER'S "HARRIS" MULTICAM ZIGZAG REISSUE-PATENT APPLICATION WAS
PENDING IN THE UNITED STATES PATENT OFFICE; GEGAUF HAD AN APPLICATION
PENDING AT THE SAME TIME COVERING SUBSTANTIALLY THE SAME SUBJECT
MATTER, BUT ENJOYING A NINE-DAY EARLIER PRIORITY DATE.  SEE 35 U.S.C.
SEC. 119.  IN THE CIRCUMSTANCES, IT APPEARED TO SINGER THAT, BETWEEN
SINGER AND GEGAUF, GEGAUF WOULD HAVE A BETTER CLAIM TO A PATENT ON THE
MULTICAM ZIGZAG, AT LEAST ON THE BROAD AND THUS MORE VALUABLE CLAIMS. 
BUT IT WAS BY NO MEANS CERTAIN THAT EITHER OF THEM WOULD GET THE
PATENT.  IN CASES WHERE SEVERAL APPLICANTS CLAIM THE SAME SUBJECT
MATTER, THE PATENT OFFICE DECLARES AN "INTERFERENCE."  THIS IS AN
ADVERSARY PROCEEDING BETWEEN THE RIVAL APPLICANTS, PRIMARILY FOR THE
PURPOSE OF DETERMINING RELATIVE PRIORITY.  BUT A PARTY TO AN
INTERFERENCE ALSO CAN, BY DRAWING ADDITIONAL PRIOR ART TO THE ATTENTION
OF THE PATENT OFFICE WHICH WILL REQUIRE THE OFFICE TO ISSUE NO PATENT
AT ALL TO ANYONE, SEE 37 CFR SECS. 1.232, 1.237(A); CF. 35 U.S.C. SECS.
101-102, PREVENT HIS RIVAL FROM SECURING A PATENT WHICH IF GRANTED
MIGHT EXCLUDE HIM FROM THE MANUFACTURE OF THE SUBJECT MATTER.  35
U.S.C. SEC. 154.  GEGAUF, AFTER SINGER APPROACHED IT TO NEGOTIATE AN
AGREEMENT BEFORE THE OFFICE DECLARED AN INTERFERENCE, FEARED THAT
SINGER MIGHT IN SELF-DEFENSE DRAW TO THE ATTENTION OF THE PATENT OFFICE
CERTAIN EARLIER PATENTS THE OFFICE WAS UNAWARE OF, AND WHICH MIGHT
CAUSE THE GEGAUF CLAIMS TO BE LIMITED OR INVALIDATED; SINGER "LET THEM
KNOW THAT WE THOUGHT WE COULD KNOCK OUT THEIR CLAIMS BUT THAT IN SO
DOING WE WERE PROBABLY GOING TO HURT BOTH OF US." 

THE RESULT WAS THAT IN APRIL 1956 SINGER AND GEGAUF ENTERED A GENERAL
CROSS-LICENSING AGREEMENT PROVIDING THAT THE PARTIES WERE NOT TO ATTACK
ONE ANOTHER'S PATENT APPLICATIONS "DIRECTLY OR INDIRECTLY," NOT TO DO
ANYTHING TO RESTRICT ONE ANOTHER'S CLAIMS IN PATENTS OR APPLICATIONS,
AND TO FACILITATE THE ALLOWANCE TO ONE ANOTHER OF "CLAIMS AS BROAD AS
POSSIBLE."  IN AUGUST 1956 THE PATENT OFFICE DECLARED THE ANTICIPATED
INTERFERENCE.  SINGER AND GEGAUF SETTLED THE INTERFERENCE PURSUANT TO
THEIR PRIOR AGREEMENT:  SINGER WITHDREW ITS INTERFERING CLAIMS AND IN
APRIL 1957 THE PATENT OFFICE DISSOLVED THE INTERFERENCE PROCEEDING
BEFORE IT HAD EVER REACHED THE LITIGATION STAGE.  37 CFR SEC. 1.262. 
EVENTUALLY THE GEGAUF PATENT ISSUED AND WAS SOLD TO SINGER AS PART OF
THE CONCERTED ACTION TO EXCLUDE THE JAPANESE WHICH IS INVOLVED IN THE
FIRST BRANCH OF THE CASE, SUPRA, P. 197. 

IN ITSELF THE DESIRE TO SECURE BROAD CLAIMS IN A PATENT MAY WELL BE
UNEXCEPTIONABLE - WHEN PURELY UNILATERAL ACTION IS INVOLVED.  AND THE
SETTLEMENT OF AN INTERFERENCE IN WHICH THE ONLY INTERESTS AT STAKE ARE
THOSE OF THE ADVERSARIES, AS IN THE CASE OF A DISPUTE OVER RELATIVE
PRIORITY ONLY AND WHERE POSSIBLE INVALIDITY, BECAUSE OF KNOWN PRIOR
ART, IS NOT INVOLVED, MAY WELL BE CONSISTENT WITH THE GENERAL POLICY
FAVORING SETTLEMENT OF LITIGATION.  BUT THE PRESENT CASE INVOLVES A
LESS INNOCUOUS SETTING.  SINGER AND GEGAUF AGREED TO SETTLE AN
INTERFERENCE, AT LEAST IN PART, TO PREVENT AN OPEN FIGHT OVER
VALIDITY.  THERE IS A PUBLIC INTEREST HERE, SEE MERCOID CORP. V. MID
CONTINENT CO., 320 U.S. 661, 665; UNITED STATES V. MASONITE CORP., 316
U.S. 265, 278, WHICH THE PARTIES HAVE SUBORDINATED TO THEIR PRIVATE
ENDS - THE PUBLIC INTEREST IN GRANTING PATENT MONOPOLIES ONLY WHEN THE
PROGRESS OF THE USEFUL ARTS AND OF SCIENCE WILL BE FURTHERED BECAUSE AS
THE CONSIDERATION FOR ITS GRANT THE PUBLIC IS GIVEN A NOVEL AND USEFUL
INVENTION.  U.S. CONST., ART. I, SEC. 8; 35 U.S.C. SEC. 101; STATUTE OF
MONOPOLIES, 21 JAC.  I, C. 3.  WHEN THERE IS NO NOVELTY AND THE PUBLIC
PARTS WITH THE MONOPOLY GRANT FOR NO RETURN, THE PUBLIC HAS BEEN
IMPOSED UPON AND THE PATENT CLAUSE SUBVERTED.  UNITED STATES, V. BELL
TELEPHONE CO., 128 U.S. 315, 357, 370; SEE KATZINGER CO. V. CHICAGO
MFG. CO., 329 U.S. 394, 400-401; CUNO CORP. V. AUTOMATIC DEVICES CORP.,
314 U.S. 84, 92; A.&P. TEA CO. V. SUPERMARKET CORP., 340 U.S. 147, 154
155 (CONCURRING OPINION).  WHATEVER MAY BE THE DUTY OF A SINGLE PARTY
TO DRAW THE PRIOR ART TO THE OFFICE'S ATTENTION, SEE 35 U.S.C. SEC.
115; 37 CFR SEC. 1.65(A); BELL TELEPHONE, SUPRA, AT 356, CLEARLY
COLLUSION AMONG APPLICANTS TO PREVENT PRIOR ART FROM COMING TO OR BEING
DRAWN TO THE OFFICE'S ATTENTION IS AN INEQUITABLE IMPOSITION ON THE
OFFICE AND ON THE PUBLIC.  PRECISION INSTRUMENT CO. V. AUTOMOTIVE CO.,
324 U.S. 806; SEE H.R. REP. NO. 1983, 87TH CONG., 2D SESS. 1, 4 (REP.
ON ACT OF OCTOBER 15, 1962, PUB. L. 87-831, 76 STAT. 958).  IN MY VIEW,
SUCH COLLUSION TO SECURE A MONOPOLY GRANT RUNS AFOUL OF THE SHERMAN
ACT'S PROHIBITIONS AGAINST CONSPIRACIES IN RESTRAINT OF TRADE* - IF NOT
BAD PER SE, THEN SUCH AGREEMENTS ARE AT LEAST PRESUMPTIVELY BAD. 
COMPARE MITCHEL V. REYNOLDS, 1 P. WMS.  181, 191-192, 24 ENG. REP. 347,
350-351.  THE PATENT LAWS DO NOT AUTHORIZE, AND THE SHERMAN ACT DOES
NOT PERMIT, SUCH AGREEMENTS BETWEEN BUSINESS RIVALS TO ENCROACH UPON
THE PUBLIC DOMAIN AND USURP IT TO THEMSELVES. 

*THE COURT HAS ALREADY HELD SIMILAR AGREEMENTS CONTRARY TO PUBLIC
POLICY AND UNENFORCEABLE.  IN THE "PATENT ESTOPPEL" CASES, THE COURT
FOUND THAT PUBLIC POLICY FAVORS THE EXPOSURE OF INVALID PATENT
MONOPOLIES BEFORE THE COURTS IN ORDER TO FREE THE PUBLIC FROM THEIR
EFFECTS.  THUS A LICENSEE MAY NOT BE PREVENTED FROM ATTACKING THE
VALIDITY OF HIS LICENSOR'S PATENT.  SOLA ELEC.  CO. V. JEFFERSON ELEC. 
CO., 317 U.S. 173; SCOTT PAPER CO. V. MARCALUS MFG. CO., 326 U.S. 249;
KATZINGER CO. V. CHICAGO MFG. CO., 329 U.S. 394; MACGREGOR V.
WESTINGHOUSE CO., 329 U.S. 402; UNITED STATES V. UNITED STATES GYPSUM
CO., 333 U.S. 364, 387-388. 

IT SHOULD BE NOTED THAT THE PRESENT AGREEMENT INVOLVED A SPECIFIC
PROMISE NOT TO ATTACK ONE ANOTHER'S PATENTS DIRECTLY OR INDIRECTLY IN
ADDITION TO A PROMISE TO COOPERATE IN INTERFERENCE PROCEEDINGS. 

MR. JUSTICE HARLAN, DISSENTING. 

ALTHOUGH THE COURT REVERSES THIS CASE ON THE GROUND THAT THE DISTRICT
COURT PROCEEDED ON ERRONEOUS LEGAL PREMISES, I DO NOT BELIEVE ITS
OPINION CAN SERVE TO OBSCURE THE FACT THAT WHAT THE MAJORITY HAS REALLY
DONE IS OVERTURN THE LOWER COURT'S FINDING OF FACT. 

A MERE READING OF THE EXHAUSTIVE OPINION BELOW WILL SHOW THAT THE
DISTRICT COURT IS DISMISSING THE GOVERNMENT'S CASE DID NOT, AS THIS
COURT NOW HOLDS, FAIL TO RECOGNIZE THAT A CONCERTED USE BY SINGER AND
GEGAUF OF THEIR PATENTS IN PURSUIT OF A COMMON PURPOSE TO THWART
JAPANESE COMPETITION WOULD VIOLATE THE SHERMAN ACT.  RATHER THE
DISTRICT COURT FOUND THAT SUCH A VIOLATION HAD NOT BEEN MADE OUT. 

THE BASIC PREDICATE FOR THIS COURT'S ATTRIBUTING TO THE DISTRICT
COURT THE FOLLOWING OF AN ERRONEOUS LEGAL STANDARD IS THE "DIRECT
CONFLICT" WHICH THE MAJORITY SEES BETWEEN THE LOWER COURT'S FINDING
THAT SINGER'S UNDERLYING, "DOMINANT AND SOLE PURPOSE" IN ENTERING INTO
THE GEGAUF LICENSE AGREEMENT "WAS TO SETTLE THE CONFLICT" BETWEEN THE
HARRIS AND THE GEGAUF PATENTS AND THE FINDING THAT SINGER'S "SECONDARY"
PURPOSE WAS ITS DESIRE TO OBTAIN "PROTECTION AGAINST THE JAPANESE
MACHINES" WHICH MIGHT BE MADE UNDER THE GEGAUF PATENT (ANTE, P. 190). 
THIS IS INDEED A SLENDER REED FOR THE COURT'S POSITION.  FOR ONE IS
LEFT AT A LOSS TO UNDERSTAND HOW THE TWO FINDINGS CAN BE DEEMED
INCONSISTENT.  OBVIOUSLY SINGER WANTED TO SETTLE THE "PRIORITY" ISSUE
WITH GEGAUF IN ORDER TO HAVE SOLID PATENT PROTECTION AGAINST ALL COMERS
- PARTICULARLY OF COURSE THE JAPANESE, WHOSE ABILITY TO MANUFACTURE
THESE POPULAR MACHINES IN A CHEAP LABOR MARKET PUT THEM IN THE
FOREFRONT OF POSSIBLE INFRINGERS.  THUS IT SEEMS TO ME THAT THE
FINDINGS AS TO SINGER'S "DOMINANT" AND "SECONDARY" PURPOSES ARE
ENTIRELY CONSISTENT, AND THAT THEIR SUPPOSED INCONSISTENCY CAN BE MADE
TO REST ON NOTHING MORE SUBSTANTIAL THAN A PLAY ON THE WORD "SOLE" IN
THE BASIC FINDING.  THE FURTHER CIRCUMSTANCE THAT IT WAS ONLY SINGER'S
"SECONDARY" PURPOSE THAT WAS DISCLOSED TO GEGAUF GOES NOT TO THE
QUESTION OF "CONSISTENCY" BUT RATHER TO THE SUFFICIENCY OF THE LOWER
COURT'S ULTIMATE FINDING THAT NO ILLEGAL CONCERT OF ACTION HAD BEEN
SHOWN BETWEEN SINGER AND GEGAUF. 

NOR DOES ANYTHING TO WHICH THE COURT POINTS IN THE GEGAUF PATENT
ASSIGNMENT AND TARIFF COMMISSION EPISODES (ANTE, PP. 191-196) LEND
SUPPORT TO THIS TRANSPARENT EFFORT TO GROUND REVERSAL ON A QUESTION OF
LAW SO AS TO ESCAPE THE NECESSITY OF COMING TO GRIPS WITH THE ONLY TRUE
ISSUE IN THIS CASE:  ARE THE DISTRICT COURT'S FINDINGS OF FACT - WHICH
IF ACCEPTED WOULD PUT AN END TO THE GOVERNMENT'S CASE - "CLEARLY
ERRONEOUS"?  AGAIN THE VARIOUS BITS AND PIECES WHICH THE COURT HAS
CULLED FROM THIS LENGTHY RECORD GO NOT TO THE CONSISTENCY BUT TO THE
SUFFICIENCY OF THE FINDINGS.    IN MY OPINION THE DISTRICT COURT'S
FINDINGS ARE INVULNERABLE TO ATTACK UNDER RULE 52(A) OF THE FEDERAL
RULES OF CIVIL PROCEDURE.  THE MERE FACT THAT ONE OR MORE OF THE
MEMBERS OF THIS COURT MIGHT HAVE MADE OPPOSITE FINDINGS IF SITTING AT
NISI PRIUS DOES NOT OF COURSE SERVE TO JUSTIFY REVERSAL OF A DISTRICT
COURT'S FINDINGS UNDER THE "CLEARLY ERRONEOUS" RULE.  UNITED STATES V.
YELLOW CAB CO., 338 U.S. 338, 341-342.    IN CONCLUSION, IT IS
GRATIFYING TO OBSERVE THE COURT'S RECOGNITION OF THE FACT THAT THE
REQUIREMENT OF DIRECT REVIEW IN CASES LIKE THIS HAS BECOME AN
ANACHRONISM IN LIGHT OF THE MODERN WORK LOAD OF THIS COURT.  ANTE, NOTE
1; SEE ALSO THE SEPARATE OPINION OF THIS WRITER IN BROWN SHOE CO. V.
UNITED STATES, 370 U.S. 294, 357, 364-365.  THE FINAL OUTCOME OF THIS
CASE MIGHT INDEED HAVE BEEN DIFFERENT HAD THIS COURT HAD "THE VALUABLE
ASSISTANCE OF THE COURTS OF APPEALS" (ANTE, NOTE 1). 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 
..END :





















SCHOOL DISTRICT OF ABINGTON TOWNSHIP, PENNSYLVANIA V. SCHEMPP 374 U.S.
203 


NO. 142.  ARGUED FEBRUARY 27-28, 1963 - DECIDED JUNE 17, 1963* - 201 F.
SUPP. 815, AFFIRMED - 228 MD. 239, 179 A.2D 698, REVERSED. 

*TOGETHER WITH NO. 119, MURRAY ET AL. V. CURLETT ET AL., CONSTITUTING
THE BOARD OF SCHOOL COMMISSIONERS OF BALTIMORE CITY, ON CERTIORARI TO
THE COURT OF APPEALS OF MARYLAND, ARGUED FEBRUARY 27, 1963. 


BECAUSE OF THE PROHIBITION OF THE FIRST AMENDMENT AGAINST THE
ENACTMENT BY CONGRESS OF ANY LAW "RESPECTING AN ESTABLISHMENT OF
RELIGION," WHICH IS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT, NO STATE LAW OR SCHOOL BOARD MAY REQUIRE THAT PASSAGES FROM
THE BIBLE BE READ OR THAT THE LORD'S PRAYER BE RECITED IN THE PUBLIC
SCHOOLS OF A STATE AT THE BEGINNING OF EACH SCHOOL DAY - EVEN IF
INDIVIDUAL STUDENTS MAY BE EXCUSED FROM ATTENDING OR PARTICIPATING IN
SUCH EXERCISES UPON WRITTEN REQUEST OF THEIR PARENTS.  PP. 205-227. 

SCHOOL DISTRICT OF ABINGTON TOWNSHIP, PENNSYLVANIA, ET AL. V. SCHEMPP ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN WE ARE CALLED UPON TO CONSIDER THE SCOPE OF THE PROVISION
OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION WHICH DECLARES
THAT "CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF  ...  ."  THESE
COMPANION CASES PRESENT THE ISSUES IN THE CONTEXT OF STATE ACTION
REQUIRING THAT SCHOOLS BEGIN EACH DAY WITH READINGS FROM THE BIBLE. 
WHILE RAISING THE BASIC QUESTIONS UNDER SLIGHTLY DIFFERENT FACTUAL
SITUATIONS, THE CASES PERMIT OF JOINT TREATMENT.  IN LIGHT OF THE
HISTORY OF THE FIRST AMENDMENT AND OF OUR CASES INTERPRETING AND
APPLYING ITS REQUIREMENTS, WE HOLD THAT THE PRACTICES AT ISSUE AND THE
LAWS REQUIRING THEM ARE UNCONSTITUTIONAL UNDER THE ESTABLISHMENT
CLAUSE, AS APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT. 

          I. 

THE FACTS IN EACH CASE:  NO. 142.  THE COMMONWEALTH OF PENNSYLVANIA
BY LAW, 24 PA. STAT.  SEC. 15-1516, AS AMENDED, PUB. LAW 1928 (SUPP.
1960) DEC. 17, 1959, REQUIRES THAT "AT LEAST TEN VERSES FROM THE HOLY
BIBLE SHALL BE READ, WITHOUT COMMENT, AT THE OPENING OF EACH PUBLIC
SCHOOL ON EACH SCHOOL DAY.  ANY CHILD SHALL BE EXCUSED FROM SUCH BIBLE
READING, OR ATTENDING SUCH BIBLE READING, UPON THE WRITTEN REQUEST OF
HIS PARENT OR GUARDIAN."  THE SCHEMPP FAMILY, HUSBAND AND WIFE AND TWO
OF THEIR THREE CHILDREN, BROUGHT SUIT TO ENJOIN ENFORCEMENT OF THE
STATUTE, CONTENDING THAT THEIR RIGHTS UNDER THE FOURTEENTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES ARE, HAVE BEEN, AND WILL CONTINUE
TO BE VIOLATED UNLESS THIS STATUTE BE DECLARED UNCONSTITUTIONAL AS
VIOLATIVE OF THESE PROVISIONS OF THE FIRST AMENDMENT.  THEY SOUGHT TO
ENJOIN THE APPELLANT SCHOOL DISTRICT, WHEREIN THE SCHEMPP CHILDREN
ATTEND SCHOOL, AND ITS OFFICERS AND THE SUPERINTENDENT OF PUBLIC
INSTRUCTION OF THE COMMONWEALTH FROM CONTINUING TO CONDUCT SUCH
READINGS AND RECITATION OF THE LORD'S PRAYER IN THE PUBLIC SCHOOLS OF
THE DISTRICT PURSUANT TO THE STATUTE.  A THREE-JUDGE STATUTORY DISTRICT
COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA HELD THAT THE STATUTE IS
VIOLATIVE OF THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT AS APPLIED
TO THE STATES BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND
DIRECTED THAT APPROPRIATE INJUNCTIVE RELIEF ISSUE.  201 F. SUPP. 815. 
(FN1)  ON APPEAL BY THE DISTRICT, ITS OFFICIALS AND THE SUPERINTENDENT,
UNDER 28 U.S.C. SEC. 1253, WE NOTED PROBABLE JURISDICTION.  371 U.S.
807. 

THE APPELLEES EDWARD LEWIS SCHEMPP, HIS WIFE SIDNEY, AND THEIR
CHILDREN, ROGER AND DONNA, ARE OF THE UNITARIAN FAITH AND ARE MEMBERS
OF THE UNITARIAN CHURCH IN GERMANTOWN, PHILADELPHIA, PENNSYLVANIA,
WHERE THEY, AS WELL AS ANOTHER SON, ELLORY, REGULARLY ATTEND RELIGIOUS
SERVICES.  THE LATTER WAS ORIGINALLY A PARTY BUT HAVING GRADUATED FROM
THE SCHOOL SYSTEM PENDENTE LITE WAS VOLUNTARILY DISMISSED FROM THE
ACTION.  THE OTHER CHILDREN ATTEND THE ABINGTON SENIOR HIGH SCHOOL,
WHICH IS A PUBLIC SCHOOL OPERATED BY APPELLANT DISTRICT. 

ON EACH SCHOOL DAY AT THE ABINGTON SENIOR HIGH SCHOOL BETWEEN 8:15
AND 8:30 A.M., WHILE THE PUPILS ARE ATTENDING THEIR HOME ROOMS OR
ADVISORY SECTIONS, OPENING EXERCISES ARE CONDUCTED PURSUANT TO THE
STATUTE.  THE EXERCISES ARE BROADCAST INTO EACH ROOM IN THE SCHOOL
BUILDING THROUGH AN INTERCOMMUNICATIONS SYSTEM AND ARE CONDUCTED UNDER
THE SUPERVISION OF A TEACHER BY STUDENTS ATTENDING THE SCHOOL'S RADIO
AND TELEVISION WORKSHOP.  SELECTED STUDENTS FROM THIS COURSE GATHER
EACH MORNING IN THE SCHOOL'S WORKSHOP STUDIO FOR THE EXERCISES, WHICH
INCLUDE READINGS BY ONE OF THE STUDENTS OF 10 VERSES OF THE HOLY BIBLE,
BROADCAST TO EACH ROOM IN THE BUILDING.  THIS IS FOLLOWED BY THE
RECITATION OF THE LORD'S PRAYER, LIKEWISE OVER THE INTERCOMMUNICATIONS
SYSTEM, BUT ALSO BY THE STUDENTS IN THE VARIOUS CLASSROOMS, WHO ARE
ASKED TO STAND AND JOIN IN REPEATING THE PRAYER IN UNISON.  THE
EXERCISES ARE CLOSED WITH THE FLAG SALUTE AND SUCH PERTINENT
ANNOUNCEMENTS AS ARE OF INTEREST TO THE STUDENTS.  PARTICIPATION IN THE
OPENING EXERCISES, AS DIRECTED BY THE STATUTE, IS VOLUNTARY.  THE
STUDENT READING THE VERSES FROM THE BIBLE MAY SELECT THE PASSAGES AND
READ FROM ANY VERSION HE CHOOSES, ALTHOUGH THE ONLY COPIES FURNISHED BY
THE SCHOOL ARE THE KING JAMES VERSION, COPIES OF WHICH WERE CIRCULATED
TO EACH TEACHER BY THE SCHOOL DISTRICT.  DURING THE PERIOD IN WHICH THE
EXERCISES HAVE BEEN CONDUCTED THE KING JAMES, THE DOUAY AND THE REVISED
STANDARD VERSIONS OF THE BIBLE HAVE BEEN USED, AS WELL AS THE JEWISH
HOLY SCRIPTURES.  THERE ARE NO PREFATORY STATEMENTS, NO QUESTIONS ASKED
OR SOLICITED, NO COMMENTS OR EXPLANATIONS MADE AND NO INTERPRETATIONS
GIVEN AT OR DURING THE EXERCISES.  THE STUDENTS AND PARENTS ARE ADVISED
THAT THE STUDENT MAY ABSENT HIMSELF FROM THE CLASSROOM OR, SHOULD HE
ELECT TO REMAIN, NOT PARTICIPATE IN THE EXERCISES. 

IT APPEARS FROM THE RECORD THAT IN SCHOOLS NOT HAVING AN
INTERCOMMUNICATIONS SYSTEM THE BIBLE READING AND THE RECITATION OF THE
LORD'S PRAYER WERE CONDUCTED BY THE HOME-ROOM TEACHER, (FN2) WHO CHOSE
THE TEXT OF THE VERSES AND READ THEM HERSELF OR HAD STUDENTS READ THEM
IN ROTATION OR BY VOLUNTEERS.  THIS WAS FOLLOWED BY A STANDING
RECITATION OF THE LORD'S PRAYER, TOGETHER WITH THE PLEDGE OF ALLEGIANCE
TO THE FLAG BY THE CLASS IN UNISON AND A CLOSING ANNOUNCEMENT OF
ROUTINE SCHOOL ITEMS OF INTEREST. 

AT THE FIRST TRIAL EDWARD SCHEMPP AND THE CHILDREN TESTIFIED AS TO
SPECIFIC RELIGIOUS DOCTRINES PURVEYED BY A LITERAL READING OF THE BIBLE
"WHICH WERE CONTRARY TO THE RELIGIOUS BELIEFS WHICH THEY HELD AND TO
THEIR FAMILIAL TEACHING."  177 F. SUPP. 398, 400.  THE CHILDREN
TESTIFIED THAT ALL OF THE DOCTRINES TO WHICH THEY REFERRED WERE READ TO
THEM AT VARIOUS TIMES AS PART OF THE EXERCISES.  EDWARD SCHEMPP
TESTIFIED AT THE SECOND TRIAL THAT HE HAD CONSIDERED HAVING ROGER AND
DONNA EXCUSED FROM ATTENDANCE AT THE EXERCISES BUT DECIDED AGAINST IT
FOR SEVERAL REASONS, INCLUDING HIS BELIEF THAT THE CHILDREN'S
RELATIONSHIPS WITH THEIR TEACHERS AND CLASSMATES WOULD BE ADVERSELY
AFFECTED.  (FN3) 

EXPERT TESTIMONY WAS INTRODUCED BY BOTH APPELLANTS AND APPELLEES AT
THE FIRST TRIAL, WHICH TESTIMONY WAS SUMMARIZED BY THE TRIAL COURT AS
FOLLOWS: 

"DR. SOLOMON GRAYZEL TESTIFIED THAT THERE WERE MARKED DIFFERENCES
BETWEEN THE JEWISH HOLY SCRIPTURES AND THE CHRISTIAN HOLY BIBLE, THE
MOST OBVIOUS OF WHICH WAS THE ABSENCE OF THE NEW TESTAMENT IN THE
JEWISH HOLY SCRIPTURES.  DR. GRAYZEL TESTIFIED THAT PORTIONS OF THE NEW
TESTAMENT WERE OFFENSIVE TO JEWISH TRADITION AND THAT, FROM THE
STANDPOINT OF JEWISH FAITH, THE CONCEPT OF JESUS CHRIST AS THE SON OF
GOD WAS 'PRACTICALLY BLASPHEMOUS.'  HE CITED INSTANCES IN THE NEW
TESTAMENT WHICH, ASSERTEDLY, WERE NOT ONLY SECTARIAN IN NATURE BUT
TENDED TO BRING THE JEWS INTO RIDICULE OR SCORN.  DR. GRAYZEL GAVE AS
HIS EXPERT OPINION THAT SUCH MATERIAL FROM THE NEW TESTAMENT COULD BE
EXPLAINED TO JEWISH CHILDREN IN SUCH A WAY AS TO DO NO HARM TO THEM. 
BUT IF PORTIONS OF THE NEW TESTAMENT WERE READ WITHOUT EXPLANATION,
THEY COULD BE, AND IN HIS SPECIFIC EXPERIENCE WITH CHILDREN DR. GRAYZEL
OBSERVED, HAD BEEN, PSYCHOLOGICALLY HARMFUL TO THE CHILD AND HAD CAUSED
A DIVISIVE FORCE WITHIN THE SOCIAL MEDIA OF THE SCHOOL. 

"DR. GRAYZEL ALSO TESTIFIED THAT THERE WAS SIGNIFICANT DIFFERENCE IN
ATTITUDE WITH REGARD TO THE RESPECTIVE BOOKS OF THE JEWISH AND
CHRISTIAN RELIGIONS IN THAT JUDAISM ATTACHES NO SPECIAL SIGNIFICANCE TO
THE READING OF THE BIBLE PER SE AND THAT THE JEWISH HOLY SCRIPTURES ARE
SOURCE MATERIALS TO BE STUDIED.  BUT DR. GRAYZEL DID STATE THAT MANY
PORTIONS OF THE NEW, AS WELL AS OF THE OLD, TESTAMENT CONTAINED
PASSAGES OF GREAT LITERARY AND MORAL VALUE. 

"DR. LUTHER A. WEIGLE, AN EXPERT WITNESS FOR THE DEFENSE, TESTIFIED
IN SOME DETAIL AS TO THE REASONS FOR AND THE METHODS EMPLOYED IN
DEVELOPING THE KING JAMES AND THE REVISED STANDARD VERSIONS OF THE
BIBLE.  ON DIRECT EXAMINATION, DR. WEIGLE STATED THAT THE BIBLE WAS NON
HIM NON-SECTARIAN WITHIN THE CHRISTIAN FAITHS.  DR. WEIGLE STATED THAT
HIS DEFINITION OF THE HOLY BIBLE WOULD INCLUDE THE JEWISH HOLY
SCRIPTURES, BUT ALSO STATED THAT THE 'HOLY BIBLE' WOULD NOT BE COMPLETE
WITHOUT THE NEW TESTAMENT.  HE STATED THAT THE NEW TESTAMENT 'CONVEYED
THE MESSAGE OF CHRISTIANS.'  IN HIS OPINION, READING OF THE HOLY
SCRIPTURES TO THE EXCLUSION OF THE NEW TESTAMENT WOULD BE A SECTARIAN
PRACTICE.  DR. WEIGLE STATED THAT THE BIBLE WAS OF GREAT MORAL,
HISTORICAL AND LITERARY VALUE.  THIS IS CONCEDED BY ALL THE PARTIES AND
IS ALSO THE VIEW OF THE COURT."  177 F. SUPP. 398, 401-402. 

THE TRIAL COURT, IN STRIKING DOWN THE PRACTICES AND THE STATUTE
REQUIRING THEM, MADE SPECIFIC FINDINGS OF FACT THAT THE CHILDREN'S
ATTENDANCE AT ABINGTON SENIOR HIGH SCHOOL IS COMPULSORY AND THAT THE
PRACTICE OF READING 10 VERSES FROM THE BIBLE IS ALSO COMPELLED BY LAW. 
IT ALSO FOUND THAT:

"THE READING OF THE VERSES, EVEN WITHOUT COMMENT, POSSESSES A
DEVOTIONAL AND RELIGIOUS CHARACTER AND CONSTITUTES IN EFFECT A
RELIGIOUS OBSERVANCE.  THE DEVOTIONAL AND RELIGIOUS NATURE OF THE
MORNING EXERCISES IS MADE ALL THE MORE APPARENT BY THE FACT THAT THE
BIBLE READING IS FOLLOWED IMMEDIATELY BY A RECITAL IN UNISON BY THE
PUPILS OF THE LORD'S PRAYER.  THE FACT THAT SOME PUPILS, OR
THEORETICALLY ALL PUPILS, MIGHT BE EXCUSED FROM ATTENDANCE AT THE
EXERCISES DOES NOT MITIGATE THE OBLIGATORY NATURE OF THE CEREMONY FOR
...  SECTION 1516  ...  UNEQUIVOCALLY REQUIRES THE EXERCISES TO BE HELD
EVERY SCHOOL DAY IN EVERY SCHOOL IN THE COMMONWEALTH.  THE EXERCISES
ARE HELD IN THE SCHOOL BUILDINGS AND PERFORCE ARE CONDUCTED BY AND
UNDER THE AUTHORITY OF THE LOCAL SCHOOL AUTHORITIES AND DURING SCHOOL
SESSIONS.  SINCE THE STATUTE REQUIRES THE READING OF THE 'HOLY BIBLE,'
A CHRISTIAN DOCUMENT, THE PRACTICE  ...  PREFERS THE CHRISTIAN
RELIGION.  THE RECORD DEMONSTRATES THAT IT WAS THE INTENTION OF  ...
THE COMMONWEALTH  ...  TO INTRODUCE A RELIGIOUS CEREMONY INTO THE
PUBLIC SCHOOLS OF THE COMMONWEALTH."  201 F. SUPP., AT 819. 

NO. 119.  IN 1905 THE BOARD OF SCHOOL COMMISSIONERS OF BALTIMORE CITY
ADOPTED A RULE PURSUANT TO ART. 77, SEC. 202 OF THE ANNOTATED CODE OF
MARYLAND.  THE RULE PROVIDED FOR THE HOLDING OF OPENING EXERCISES IN
THE SCHOOLS OF THE CITY, CONSISTING PRIMARILY OF THE "READING, WITHOUT
COMMENT, OF A CHAPTER IN THE HOLY BIBLE AND/OR THE USE OF THE LORD'S
PRAYER."  THE PETITIONERS, MRS. MADALYN MURRAY AND HER SON, WILLIAM J.
MURRAY III, ARE BOTH PROFESSED ATHEISTS.  FOLLOWING UNSUCCESSFUL
ATTEMPTS TO HAVE THE RESPONDENT SCHOOL BOARD RESCIND THE RULE, THIS
SUIT WAS FILED FOR MANDAMUS TO COMPEL ITS RESCISSION AND CANCELLATION. 
IT WAS ALLEGED THAT WILLIAM WAS A STUDENT IN A PUBLIC SCHOOL OF THE
CITY AND MRS. MURRAY, HIS MOTHER, WAS A TAXPAYER THEREIN; THAT IT WAS
THE PRACTICE UNDER THE RULE TO HAVE A READING ON EACH SCHOOL MORNING
FROM THE KING JAMES VERSION OF THE BIBLE; THAT AT PETITIONERS'
INSISTENCE THE RULE WAS AMENDED (FN4) TO PERMIT CHILDREN TO BE EXCUSED
FROM THE EXERCISE ON REQUEST OF THE PARENT AND THAT WILLIAM HAD BEEN
EXCUSED PURSUANT THERETO; THAT NEVERTHELESS THE RULE AS AMENDED WAS IN
VIOLATION OF THE PETITIONERS' RIGHTS "TO FREEDOM OF RELIGION UNDER THE
FIRST AND FOURTEENTH AMENDMENTS" AND IN VIOLATION OF "THE PRINCIPLE OF
SEPARATION BETWEEN CHURCH AND STATE, CONTAINED THEREIN  ...  ."  THE
PETITION PARTICULARIZED THE PETITIONERS' ATHEISTIC BELIEFS AND STATED
THAT THE RULE, AS PRACTICED, VIOLATED THEIR RIGHTS: 

"IN THAT IT THREATENS THEIR RELIGIOUS LIBERTY BY PLACING A PREMIUM ON
BELIEF AS AGAINST NON-BELIEF AND SUBJECTS THEIR FREEDOM OF CONSCIENCE
TO THE RULE OF THE MAJORITY; IT PRONOUNCES BELIEF IN GOD AS THE SOURCE
OF ALL MORAL AND SPIRITUAL VALUES, EQUATING THESE VALUES WITH RELIGIOUS
VALUES, AND THEREBY RENDERS SINISTER, ALIEN AND SUSPECT THE BELIEFS AND
IDEALS OF YOUR PETITIONERS, PROMOTING DOUBT AND QUESTION OF THEIR
MORALITY, GOOD CITIZENSHIP AND GOOD FAITH." 

THE RESPONDENTS DEMURRED AND THE TRIAL COURT, RECOGNIZING THAT THE
DEMURRER ADMITTED ALL FACTS WELL PLEADED, SUSTAINED IT WITHOUT LEAVE TO
AMEND. THE MARYLAND COURT OF APPEALS AFFIRMED, THE MAJORITY OF FOUR
JUSTICES HOLDING THE EXERCISE NOT IN VIOLATION OF THE FIRST AND
FOURTEENTH AMENDMENTS, WITH THREE JUSTICES DISSENTING.  228 MD. 239,
179 A.2D 698.  WE GRANTED CERTIORARI.  371 U.S. 809. 

                                       II. 

IT IS TRUE THAT RELIGION HAS BEEN CLOSELY IDENTIFIED WITH OUR HISTORY
AND GOVERNMENT.  AS WE SAID IN ENGEL V. VITALE, 370 U.S. 421, 434
(1962), "THE HISTORY OF MAN IS INSEPARABLE FROM THE HISTORY OF
RELIGION.  AND  ...  SINCE THE BEGINNING OF THAT HISTORY MANY PEOPLE
HAVE DEVOUTLY BELIEVED THAT 'MORE THINGS ARE WROUGHT BY PRAYER THAN
THIS WORLD DREAMS OF.'"  IN ZORACH V. CLAUSON, 343 U.S. 306, 313
(1952), WE GAVE SPECIFIC RECOGNITION TO THE PROPOSITION THAT "WE ARE A
RELIGIOUS PEOPLE WHOSE INSTITUTIONS PRESUPPOSE A SUPREME BEING."  THE
FACT THAT THE FOUNDING FATHERS BELIEVED DEVOTEDLY THAT THERE WAS A GOD
AND THAT THE UNALIENABLE RIGHTS OF MAN WERE ROOTED IN HIM IS CLEARLY
EVIDENCED IN THEIR WRITINGS, FROM THE MAYFLOWER COMPACT TO THE
CONSTITUTION ITSELF.  THIS BACKGROUND IS EVIDENCED TODAY IN OUR PUBLIC
LIFE THROUGH THE CONTINUANCE IN OUR OATHS OF OFFICE FROM THE PRESIDENCY
TO THE ALDERMAN OF THE FINAL SUPPLICATION, "SO HELP ME GOD."  LIKEWISE
EACH HOUSE OF THE CONGRESS PROVIDES THROUGH ITS CHAPLAIN AN OPENING
PRAYER, AND THE SESSIONS OF THIS COURT ARE DECLARED OPEN BY THE CRIER
IN A SHORT CEREMONY, THE FINAL PHRASE OF WHICH INVOKES THE GRACE OF
GOD.  AGAIN, THERE ARE SUCH MANIFESTATIONS IN OUR MILITARY FORCES,
WHERE THOSE OF OUR CITIZENS WHO ARE UNDER THE RESTRICTIONS OF MILITARY
SERVICE WISH TO ENGAGE IN VOLUNTARY WORSHIP.  INDEED, ONLY LAST YEAR AN
OFFICIAL SURVEY OF THE COUNTRY INDICATED THAT 64% OF OUR PEOPLE HAVE
CHURCH MEMBERSHIP, BUREAU OF THE CENSUS, U.S. DEPARTMENT OF COMMERCE,
STATISTICAL ABSTRACT OF THE UNITED STATES (83D ED. 1962), 48, WHILE
LESS THAN 3% PROFESS NO RELIGION WHATEVER.  ID., AT P. 46.  IT CAN BE
TRULY SAID, THEREFORE, THAT TODAY, AS IN THE BEGINNING, OUR NATIONAL
LIFE REFLECTS A RELIGIOUS PEOPLE WHO, IN THE WORDS OF MADISON, ARE
"EARNESTLY PRAYING, AS  ...  IN DUTY BOUND, THAT THE SUPREME LAWGIVER
OF THE UNIVERSE  ...  GUIDE THEM INTO EVERY MEASURE WHICH MAY BE WORTHY
OF HIS BLESSING  ...  ."  MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS
ASSESSMENTS, QUOTED IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 71-72
(1947)(APPENDIX TO DISSENTING OPINION OF RUTLEDGE, J.). 

THIS IS NOT TO SAY, HOWEVER, THAT RELIGION HAS BEEN SO IDENTIFIED
WITH OUR HISTORY AND GOVERNMENT THAT RELIGIOUS FREEDOM IS NOT LIKEWISE
AS STRONGLY IMBEDDED IN OUR PUBLIC AND PRIVATE LIFE.  NOTHING BUT THE
MOST TELLING OF PERSONAL EXPERIENCES IN RELIGIOUS PERSECUTION SUFFERED
BY OUR FOREBEARS, SEE EVERSON V. BOARD OF EDUCATION, SUPRA, AT 8-11,
COULD HAVE PLANTED OUR BELIEF IN LIBERTY OF RELIGIOUS OPINION ANY MORE
DEEPLY IN OUR HERITAGE.  IT IS TRUE THAT THIS LIBERTY FREQUENTLY WAS
NOT REALIZED BY THE COLONISTS, BUT THIS IS READILY ACCOUNTABLE BY THEIR
CLOSE TIES TO THE MOTHER COUNTRY.  (FN5) HOWEVER, THE VIEWS OF MADISON
AND JEFFERSON, PRECEDED BY ROGER WILLIAMS, (FN6) CAME TO BE
INCORPORATED NOT ONLY IN THE FEDERAL CONSTITUTION BUT LIKEWISE IN THOSE
OF MOST OF OUR STATES.  THIS FREEDOM TO WORSHIP WAS INDISPENSABLE IN A
COUNTRY WHOSE PEOPLE CAME FROM THE FOUR QUARTERS OF THE EARTH AND
BROUGHT WITH THEM A DIVERSITY OF RELIGIOUS OPINION.  TODAY AUTHORITIES
LIST 83 SEPARATE RELIGIOUS BODIES, EACH WITH MEMBERSHIP EXCEEDING
50,000, EXISTING AMONG OUR PEOPLE, AS WELL AS INNUMERABLE SMALLER
GROUPS.  BUREAU OF THE CENSUS, OP. CIT., SUPRA, AT 46-47. 

                       III. 

ALMOST A HUNDRED YEARS AGO IN MINOR V. BOARD OF EDUCATION OF
CINCINNATI, (FN7) JUDGE ALPHONSO TAFT, FATHER OF THE REVERED CHIEF
JUSTICE, IN AN UNPUBLISHED OPINION STATED THE IDEAL OF OUR PEOPLE AS TO
RELIGIOUS FREEDOM AS ONE OF: 

"ABSOLUTE EQUALITY BEFORE THE LAW, OF ALL RELIGIOUS OPINIONS AND

     *         * *         *         * 

"THE GOVERNMENT IS NEUTRAL, AND, WHILE PROTECTING ALL, IT PREFERS
NONE, AND IT DISPARAGES NONE." 

BEFORE EXAMINING THIS "NEUTRAL" POSITION IN WHICH THE ESTABLISHMENT
AND FREE EXERCISE CLAUSES OF THE FIRST AMENDMENT PLACE OUR GOVERNMENT
IT IS WELL THAT WE DISCUSS THE REACH OF THE AMENDMENT UNDER THE CASES
OF THIS COURT. 

FIRST, THIS COURT HAS DECISIVELY SETTLED THAT THE FIRST AMENDMENT'S
MANDATE THAT "CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF" HAS BEEN MADE
WHOLLY APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.  TWENTY
THREE YEARS AGO IN CANTWELL V. CONNECTICUT, 310 U.S. 296, 303 (1940),
THIS COURT, THROUGH MR. JUSTICE ROBERTS, SAID: 

"THE FUNDAMENTAL CONCEPT OF LIBERTY EMBODIED IN THAT (FOURTEENTH)
AMENDMENT EMBRACES THE LIBERTIES GUARANTEED BY THE FIRST AMENDMENT. 
THE FIRST AMENDMENT DECLARES THAT CONGRESS SHALL MAKE NO LAW RESPECTING
AN ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF. 
THE FOURTEENTH AMENDMENT HAS RENDERED THE LEGISLATURES OF THE STATES AS
INCOMPETENT AS CONGRESS TO ENACT SUCH LAWS ...  ."  (FN8) 

IN A SERIES OF CASES SINCE CANTWELL THE COURT HAS REPEATEDLY
REAFFIRMED THAT DOCTRINE, AND WE DO SO NOW.  MURDOCK V. PENNSYLVANIA,
319 U.S. 105, 108 (1943); EVERSON V. BOARD OF EDUCATION, SUPRA;
ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 210-211
(1948); ZORACH V. CLAUSON, SUPRA; MCGOWAN V. MARYLAND, 366 U.S. 420
(1961); TORCASO V. WATKINS, 367 U.S. 488 (1961); AND ENGEL V. VITALE,
SUPRA. 

SECOND, THIS COURT HAS REJECTED UNEQUIVOCALLY THE CONTENTION THAT THE
ESTABLISHMENT CLAUSE FORBIDS ONLY GOVERNMENTAL PREFERENCE OF ONE
RELIGION OVER ANOTHER.  ALMOST 20 YEARS AGO IN EVERSON, SUPRA, AT 15,
THE COURT SAID THAT "NEITHER A STATE NOR THE FEDERAL GOVERNMENT CAN SET
UP A CHURCH.  NEITHER CAN PASS LAWS WHICH AID ONE RELIGION, AID ALL
RELIGIONS, OR PREFER ONE RELIGION OVER ANOTHER."  AND MR. JUSTICE
JACKSON, DISSENTING, AGREED: 

"THERE IS NO ANSWER TO THE PROPOSITION  ...  THAT THE EFFECT OF THE
RELIGIOUS FREEDOM AMENDMENT TO OUR CONSTITUTION WAS TO TAKE EVERY FORM
OF PROPAGATION OF RELIGION OUT OF THE REALM OF THINGS WHICH COULD
DIRECTLY OR INDIRECTLY BE MADE PUBLIC BUSINESS AND THEREBY BE SUPPORTED
IN WHOLE OR IN PART AT TAXPAYERS' EXPENSE  ...  .  THIS FREEDOM WAS
FIRST IN THE BILL OF RIGHTS BECAUSE IT WAS FIRST IN THE FOREFATHERS'
MINDS; IT WAS SET FORTH IN ABSOLUTE TERMS, AND ITS STRENGTH IS ITS
RIGIDITY."  ID., AT 26. 

FURTHER, MR. JUSTICE RUTLEDGE, JOINED BY JUSTICES FRANKFURTER,
JACKSON AND BURTON, DECLARED: 

"THE (FIRST) AMENDMENT'S PURPOSE WAS NOT TO STRIKE MERELY AT THE
OFFICIAL ESTABLISHMENT OF A SINGLE SECT, CREED OR RELIGION, OUTLAWING
ONLY A FORMAL RELATION SUCH AS HAD PREVAILED IN ENGLAND AND SOME OF THE
COLONIES.  NECESSARILY IT WAS TO UPROOT ALL SUCH RELATIONSHIPS.  BUT
THE OBJECT WAS BROADER THAN SEPARATING CHURCH AND STATE IN THIS NARROW
SENSE.  IT WAS TO CREATE A COMPLETE AND PERMANENT SEPARATION OF THE
SPHERES OF RELIGIOUS ACTIVITY AND CIVIL AUTHORITY BY COMPREHENSIVELY
FORBIDDING EVERY FORM OF PUBLIC AID OR SUPPORT FOR RELIGION."  ID., AT
31-32. 

THE SAME CONCLUSION HAS BEEN FIRMLY MAINTAINED EVER SINCE THAT TIME,
SEE ILLINOIS EX REL. MCCOLLUM, SUPRA, AT PP. 210-211; MCGOWAN V.
MARYLAND, SUPRA, AT 442-443; TORCASO V. WATKINS, SUPRA, AT 492-493,
495, AND WE REAFFIRM IT NOW. 

WHILE NONE OF THE PARTIES TO EITHER OF THESE CASES HAS QUESTIONED
THESE BASIC CONCLUSIONS OF THE COURT, BOTH OF WHICH HAVE BEEN LONG
ESTABLISHED, RECOGNIZED AND CONSISTENTLY REAFFIRMED, OTHERS CONTINUE TO
QUESTION THEIR HISTORY, LOGIC AND EFFICACY.  SUCH CONTENTIONS, IN THE
LIGHT OF THE CONSISTENT INTERPRETATION IN CASES OF THIS COURT, SEEM
ENTIRELY UNTENABLE AND OF VALUE ONLY AS ACADEMIC EXERCISES. 

                               IV. 

THE INTERRELATIONSHIP OF THE ESTABLISHMENT AND THE FREE EXERCISE
CLAUSES WAS FIRST TOUCHED UPON BY MR. JUSTICE ROBERTS FOR THE COURT IN
CANTWELL V. CONNECTICUT, SUPRA, AT 303-304, WHERE IT WAS SAID THAT
THEIR "INHIBITION OF LEGISLATION" HAD: 

"A DOUBLE ASPECT.  ON THE ONE HAND, IT FORESTALLS COMPULSION BY LAW
OF THE ACCEPTANCE OF ANY CREED OR THE PRACTICE OF ANY FORM OF WORSHIP. 
FREEDOM OF CONSCIENCE AND FREEDOM TO ADHERE TO SUCH RELIGIOUS
ORGANIZATION OR FORM OF WORSHIP AS THE INDIVIDUAL MAY CHOOSE CANNOT BE
RESTRICTED BY LAW.  ON THE OTHER HAND, IT SAFEGUARDS THE FREE EXERCISE
OF THE CHOSEN FORM OF RELIGION.  THUS THE AMENDMENT EMBRACES TWO
CONCEPTS, - FREEDOM TO BELIEVE AND FREEDOM TO ACT.  THE FIRST IS
ABSOLUTE BUT, IN THE NATURE OF THINGS, THE SECOND CANNOT BE." 

A HALF DOZEN YEARS LATER IN EVERSON V. BOARD OF EDUCATION, SUPRA, AT
14-15, THIS COURT, THROUGH MR. JUSTICE BLACK, STATED THAT THE "SCOPE OF
THE FIRST AMENDMENT  ...  WAS DESIGNED FOREVER TO SUPPRESS" THE
ESTABLISHMENT OF RELIGION OR THE PROHIBITION OF THE FREE EXERCISE
THEREOF.  IN SHORT, THE COURT HELD THAT THE AMENDMENT: 

"REQUIRES THE STATE TO BE A NEUTRAL IN ITS RELATIONS WITH GROUPS OF
RELIGIOUS BELIEVERS AND NON-BELIEVERS; IT DOES NOT REQUIRE THE STATE TO
BE THEIR ADVERSARY.  STATE POWER IS NO MORE TO BE USED SO AS TO
HANDICAP RELIGIONS THAN IT IS TO FAVOR THEM."  ID., AT 18. 

AND MR. JUSTICE JACKSON, IN DISSENT, DECLARED THAT PUBLIC SCHOOLS ARE
ORGANIZED: 

"ON THE PREMISE THAT SECULAR EDUCATION CAN BE ISOLATED FROM ALL
RELIGIOUS TEACHING SO THAT THE SCHOOL CAN INCULCATE ALL NEEDED TEMPORAL
KNOWLEDGE AND ALSO MAINTAIN A STRICT AND LOFTY NEUTRALITY AS TO
RELIGION.  THE ASSUMPTION IS THAT AFTER THE INDIVIDUAL HAS BEEN
INSTRUCTED IN WORLDLY WISDOM HE WILL BE BETTER FITTED TO CHOOSE HIS
RELIGION."  ID., AT 23-24. 

MOREOVER, ALL OF THE FOUR DISSENTERS, SPEAKING THROUGH MR. JUSTICE
RUTLEDGE, AGREED THAT: 

"OUR CONSTITUTIONAL POLICY  ...  DOES NOT DENY THE VALUE OR THE
NECESSITY FOR RELIGIOUS TRAINING, TEACHING OR OBSERVANCE.  RATHER IT
SECURES THEIR FREE EXERCISE.  BUT TO THAT END IT DOES DENY THAT THE
STATE CAN UNDERTAKE OR SUSTAIN THEM IN ANY FORM OR DEGREE.  FOR THIS
REASON THE SPHERE OF RELIGIOUS ACTIVITY, AS DISTINGUISHED FROM THE
SECULAR INTELLECTUAL LIBERTIES, HAS BEEN GIVEN THE TWOFOLD PROTECTION
AND, AS THE STATE CANNOT FORBID, NEITHER CAN IT PERFORM OR AID IN
PERFORMING THE RELIGIOUS FUNCTION.  THE DUAL PROHIBITION MAKES THAT
FUNCTION ALTOGETHER PRIVATE."  ID., AT 52. 

ONLY ONE YEAR LATER THE COURT WAS ASKED TO RECONSIDER AND REPUDIATE
THE DOCTRINE OF THESE CASES IN MCCOLLUM V. BOARD OF EDUCATION.  IT WAS
ARGUED THAT "HISTORICALLY THE FIRST AMENDMENT WAS INTENDED TO FORBID
ONLY GOVERNMENT PREFERENCE OF ONE RELIGION OVER ANOTHER  ...  .  IN
ADDITION THEY ASK THAT WE DISTINGUISH OR OVERRULE OUR HOLDING IN THE
EVERSON CASE THAT THE FOURTEENTH AMENDMENT MADE THE 'ESTABLISHMENT OF
RELIGION' CLAUSE OF THE FIRST AMENDMENT APPLICABLE AS A PROHIBITION
AGAINST THE STATES."  333 U.S., AT 211.  THE COURT, WITH MR. JUSTICE
REED ALONE DISSENTING, WAS UNABLE TO "ACCEPT EITHER OF THESE
CONTENTIONS."  IBID.  MR. JUSTICE FRANKFURTER, JOINED BY JUSTICES
JACKSON, RUTLEDGE AND BURTON, WROTE A VERY COMPREHENSIVE AND SCHOLARLY
CONCURRENCE IN WHICH HE SAID THAT "SEPARATION IS A REQUIREMENT TO
ABSTAIN FROM FUSING FUNCTIONS OF GOVERNMENT AND OF RELIGIOUS SECTS, NOT
MERELY TO TREAT THEM ALL EQUALLY."  ID., AT 227.  CONTINUING, HE STATED
THAT: 

"THE CONSTITUTION  ...  PROHIBITED THE GOVERNMENT COMMON TO ALL FROM
BECOMING EMBROILED, HOWEVER INNOCENTLY, IN THE DESTRUCTIVE RELIGIOUS
CONFLICTS OF WHICH THE HISTORY OF EVEN THIS COUNTRY RECORDS SOME DARK
PAGES."  ID., AT 228. 

IN 1952 IN ZORACH V. CLAUSON, SUPRA, MR. JUSTICE DOUGLAS FOR THE
COURT REITERATED: 

"THERE CANNOT BE THE SLIGHTEST DOUBT THAT THE FIRST AMENDMENT
REFLECTS THE PHILOSOPHY THAT CHURCH AND STATE SHOULD BE SEPARATED.  AND
SO FAR AS INTERFERENCE WITH THE 'FREE EXERCISE' OF RELIGION AND AN
'ESTABLISHMENT' OF RELIGION ARE CONCERNED, THE SEPARATION MUST BE
COMPLETE AND UNEQUIVOCAL.  THE FIRST AMENDMENT WITHIN THE SCOPE OF ITS
COVERAGE PERMITS NO EXCEPTION; THE PROHIBITION IS ABSOLUTE.  THE FIRST
AMENDMENT, HOWEVER, DOES NOT SAY THAT IN EVERY AND ALL RESPECTS THERE
SHALL BE A SEPARATION OF CHURCH AND STATE.  RATHER, IT STUDIOUSLY
DEFINES THE MANNER, THE SPECIFIC WAYS, IN WHICH THERE SHALL BE NO
CONCERT OR UNION OR DEPENDENCY ONE ON THE OTHER.  THAT IS THE COMMON
SENSE OF THE MATTER."  343 U.S., AT 312. 

AND THEN IN 1961 IN MCGOWAN V. MARYLAND AND IN TORCASO V. WATKINS
EACH OF THESE CASES WAS DISCUSSED AND APPROVED.  CHIEF JUSTICE WARREN
IN MCGOWAN, FOR A UNANIMOUS COURT ON THIS POINT, SAID:

"BUT, THE FIRST AMENDMENT, IN ITS FINAL FORM, DID NOT SIMPLY BAR A
CONGRESSIONAL ENACTMENT ESTABLISHING A CHURCH; IT FORBADE ALL LAWS
RESPECTING AN ESTABLISHMENT OF RELIGION.  THUS, THIS COURT HAS GIVEN
THE AMENDMENT A 'BROAD INTERPRETATION  ...  IN THE LIGHT OF ITS HISTORY
AND THE EVILS IT WAS DESIGNED FOREVER TO SUPPRESS  ...  .'"  366 U.S.,
AT 441-442. 

AND MR. JUSTICE BLACK FOR THE COURT IN TORCASO, WITHOUT DISSENT BUT
WITH JUSTICES FRANKFURTER AND HARLAN CONCURRING IN THE RESULT, USED
THIS LANGUAGE: 

"WE REPEAT AND AGAIN REAFFIRM THAT NEITHER A STATE NOR THE FEDERAL
GOVERNMENT CAN CONSTITUTIONALLY FORCE A PERSON 'TO PROFESS A BELIEF OR
DISBELIEF IN ANY RELIGION.'  NEITHER CAN CONSTITUTIONALLY PASS LAWS OR
IMPOSE REQUIREMENTS WHICH AID ALL RELIGIONS AS AGAINST NON-BELIEVERS,
AND NEITHER CAN AID THOSE RELIGIONS BASED ON A BELIEF IN THE EXISTENCE
OF GOD AS AGAINST THOSE RELIGIONS FOUNDED ON DIFFERENT BELIEFS."  367
U.S., AT 495. 

FINALLY, IN ENGEL V. VITALE, ONLY LAST YEAR, THESE PRINCIPLES WERE SO
UNIVERSALLY RECOGNIZED THAT THE COURT, WITHOUT THE CITATION OF A SINGLE
CASE AND OVER THE SOLE DISSENT OF MR. JUSTICE STEWART, REAFFIRMED
THEM.  THE COURT FOUND THE 22-WORD PRAYER USED IN "NEW YORK'S PROGRAM
OF DAILY CLASSROOM INVOCATION OF GOD'S BLESSINGS AS PRESCRIBED IN THE
REGENTS' PRAYER  ...  TO BE A RELIGIOUS ACTIVITY."  370 U.S., AT 424. 
IT HELD THAT "IT IS NO PART OF THE BUSINESS OF GOVERNMENT TO COMPOSE
OFFICIAL PRAYERS FOR ANY GROUP OF THE AMERICAN PEOPLE TO RECITE AS A
PART OF A RELIGIOUS PROGRAM CARRIED ON BY GOVERNMENT."  ID., AT 425. 
IN DISCUSSING THE REACH OF THE ESTABLISHMENT AND FREE EXERCISE CLAUSES
OF THE FIRST AMENDMENT THE COURT SAID: 

"ALTHOUGH THESE TWO CLAUSES MAY IN CERTAIN INSTANCES OVERLAP, THEY
FORBID TWO QUITE DIFFERENT KINDS OF GOVERNMENTAL ENCROACHMENT UPON
RELIGIOUS FREEDOM.  THE ESTABLISHMENT CLAUSE, UNLIKE THE FREE EXERCISE
CLAUSE, DOES NOT DEPEND UPON ANY SHOWING OF DIRECT GOVERNMENTAL
COMPULSION AND IS VIOLATED BY THE ENACTMENT OF LAWS WHICH ESTABLISH AN
OFFICIAL RELIGION WHETHER THOSE LAWS OPERATE DIRECTLY TO COERCE NON
OBSERVING INDIVIDUALS OR NOT.  THIS IS NOT TO SAY, OF COURSE, THAT LAWS
OFFICIALLY PRESCRIBING A PARTICULAR FORM OF RELIGIOUS WORSHIP DO NOT
INVOLVE COERCION OF SUCH INDIVIDUALS.  WHEN THE POWER, PRESTIGE AND
FINANCIAL SUPPORT OF GOVERNMENT IS PLACED BEHIND A PARTICULAR RELIGIOUS
BELIEF, THE INDIRECT COERCIVE PRESSURE UPON RELIGIOUS MINORITIES TO
CONFORM TO THE PREVAILING OFFICIALLY APPROVED RELIGION IS PLAIN."  ID.,
AT 430-431.    AND IN FURTHER ELABORATION THE COURT FOUND THAT THE
"FIRST AND MOST IMMEDIATE PURPOSE (OF THE ESTABLISHMENT CLAUSE) RESTED
ON THE BELIEF THAT A UNION OF GOVERNMENT AND RELIGION TENDS TO DESTROY
GOVERNMENT AND TO DEGRADE RELIGION."  ID., AT 431.  WHEN GOVERNMENT,
THE COURT SAID, ALLIES ITSELF WITH ONE PARTICULAR FORM OF RELIGION, THE
INEVITABLE RESULT IS THAT IT INCURS "THE HATRED, DISRESPECT AND EVEN
CONTEMPT OF THOSE WHO HELD CONTRARY BELIEFS."  IBID. 

V. 

THE WHOLESOME "NEUTRALITY" OF WHICH THIS COURT'S CASES SPEAK THUS
STEMS FROM A RECOGNITION OF THE TEACHINGS OF HISTORY THAT POWERFUL
RELIGIOUS FUNCTIONS OR A CONCERT OR DEPENDENCY OF ONE UPON THE OTHER TO
THE END THAT OFFICIAL SUPPORT OF THE STATE OR FEDERAL GOVERNMENT WOULD
BE PLACED BEHIND THE TENETS OF ONE OR OF ALL ORTHODOXIES.  THIS THE
ESTABLISHMENT CLAUSE PROHIBITS.  AND A FURTHER REASON FOR NEUTRALITY IS
FOUND IN THE FREE EXERCISE CLAUSE, WHICH RECOGNIZES THE VALUE OF
RELIGIOUS TRAINING, TEACHING AND OBSERVANCE AND, MORE PARTICULARLY, THE
RIGHT OF EVERY PERSON TO FREELY CHOOSE HIS OWN COURSE WITH REFERENCE
THERETO, FREE OF ANY COMPULSION FROM THE STATE.  THIS THE FREE EXERCISE
CLAUSE GUARANTEES.   THUS, AS WE HAVE SEEN, THE TWO CLAUSES MAY
OVERLAP.  AS WE HAVE INDICATED, THE ESTABLISHMENT CLAUSE HAS BEEN
DIRECTLY CONSIDERED BY THIS COURT EIGHT TIMES IN THE PAST SCORE OF
YEARS AND, WITH ONLY ONE JUSTICE DISSENTING ON THE POINT, IT HAS
CONSISTENTLY HELD THAT THE CLAUSE WITHDREW ALL LEGISLATIVE POWER
RESPECTING RELIGIOUS BELIEF OR THE EXPRESSION THEREOF.  THE TEST MAY BE
STATED AS FOLLOWS: WHAT ARE THE PURPOSE AND THE PRIMARY EFFECT OF THE
ENACTMENT?  IF EITHER IS THE ADVANCEMENT OR INHIBITION OF RELIGION THEN
THE ENACTMENT EXCEEDS THE SCOPE OF LEGISLATIVE POWER AS CIRCUMSCRIBED
BY THE CONSTITUTION.  THAT IS TO SAY THAT TO WITHSTAND THE STRICTURES
OF THE ESTABLISHMENT CLAUSE THERE MUST BE A SECULAR LEGISLATIVE PURPOSE
AND A PRIMARY EFFECT THAT NEITHER ADVANCES NOR INHIBITS RELIGION. 
EVERSON V. BOARD OF EDUCATION, SUPRA; MCGOWAN V. MARYLAND, SUPRA, AT
442.  THE FREE EXERCISE CLAUSE, LIKEWISE CONSIDERED MANY TIMES HERE,
WITHDRAWS FROM LEGISLATIVE POWER, STATE AND FEDERAL, THE EXERTION OF
ANY RESTRAINT ON THE FREE EXERCISE OF RELIGION.  ITS PURPOSE IS TO
SECURE RELIGIOUS LIBERTY IN THE INDIVIDUAL BY PROHIBITING ANY INVASIONS
THEREOF BY CIVIL AUTHORITY.  HENCE IT IS NECESSARY IN A FREE EXERCISE
CASE FOR ONE TO SHOW THE COERCIVE EFFECT OF THE ENACTMENT AS IT
OPERATES AGAINST HIM IN THE PRACTICE OF HIS RELIGION.  THE DISTINCTION
BETWEEN THE TWO CLAUSES IS APPARENT - A VIOLATION OF THE FREE EXERCISE
CLAUSE IS PREDICATED ON COERCION WHILE THE ESTABLISHMENT CLAUSE
VIOLATION NEED NOT BE SO ATTENDED. 

APPLYING THE ESTABLISHMENT CLAUSE PRINCIPLES TO THE CASES AT BAR WE
FIND THAT THE STATES ARE REQUIRING THE SELECTION AND READING AT THE
OPENING OF THE SCHOOL DAY OF VERSES FROM THE HOLY BIBLE AND THE
RECITATION OF THE LORD'S PRAYER BY THE STUDENTS IN UNISON.  THESE
EXERCISES ARE PRESCRIBED AS PART OF THE CURRICULAR ACTIVITIES OF
STUDENTS WHO ARE REQUIRED BY LAW TO ATTEND SCHOOL.  THEY ARE HELD IN
THE SCHOOL BUILDINGS UNDER THE SUPERVISION AND WITH THE PARTICIPATION
OF TEACHERS EMPLOYED IN THOSE SCHOOLS.  NONE OF THESE FACTORS, OTHER
THAN COMPULSORY SCHOOL ATTENDANCE, WAS PRESENT IN THE PROGRAM UPHELD IN
ZORACH V. CLAUSON.  THE TRIAL COURT IN NO. 142 HAS FOUND THAT SUCH AN
OPENING EXERCISE IS A RELIGIOUS CEREMONY AND WAS INTENDED BY THE STATE
TO BE SO.  WE AGREE WITH THE TRIAL COURT'S FINDING AS TO THE RELIGIOUS
CHARACTER OF THE EXERCISES.  GIVEN THAT FINDING, THE EXERCISES AND THE
LAW REQUIRING THEM ARE IN VIOLATION OF THE ESTABLISHMENT CLAUSE. 

THERE IS NO SUCH SPECIFIC FINDING AS TO THE RELIGIOUS CHARACTER OF
THE EXERCISES IN NO. 119, AND THE STATE CONTENDS (AS DOES THE STATE IN
NO. 142) THAT THE PROGRAM IS AN EFFORT TO EXTEND ITS BENEFITS TO ALL
PUBLIC SCHOOL CHILDREN WITHOUT REGARD TO THEIR RELIGIOUS BELIEF. 
INCLUDED WITHIN ITS SECULAR PURPOSES, IT SAYS, ARE THE PROMOTION OF
MORAL VALUES, THE CONTRADICTION TO THE MATERIALISTIC TRENDS OF OUR
TIMES, THE PERPETUATION OF OUR INSTITUTIONS AND THE TEACHING OF
LITERATURE.  THE CASE CAME UP ON DEMURRER, OF COURSE, TO A PETITION
WHICH ALLEGED THAT THE UNIFORM PRACTICE UNDER THE RULE HAD BEEN TO READ
FROM THE KING JAMES VERSION OF THE BIBLE AND THAT THE EXERCISE WAS
CHARACTER OF THE EXERCISE WAS ADMITTED BY THE STATE.  BUT EVEN IF ITS
PURPOSE IS NOT STRICTLY RELIGIOUS, IT IS SOUGHT TO BE ACCOMPLISHED
THROUGH READINGS, WITHOUT COMMENT, FROM THE BIBLE.  SURELY THE PLACE OF
THE BIBLE AS AN INSTRUMENT OF RELIGION CANNOT BE GAINSAID, AND THE
STATE'S RECOGNITION OF THE PERVADING RELIGIOUS CHARACTER OF THE
CEREMONY IS EVIDENT FROM THE RULE'S SPECIFIC PERMISSION OF THE
ALTERNATIVE USE OF THE CATHOLIC DOUAY VERSION AS WELL AS THE RECENT
AMENDMENT PERMITTING NONATTENDANCE AT THE EXERCISES.  NONE OF THESE
FACTORS IS CONSISTENT WITH THE CONTENTION THAT THE BIBLE IS HERE USED
EITHER AS AN INSTRUMENT FOR NONRELIGIOUS MORAL INSPIRATION OR AS A
REFERENCE FOR THE TEACHING OF SECULAR SUBJECTS. 

THE CONCLUSION FOLLOWS THAT IN BOTH CASES THE LAWS REQUIRE RELIGIOUS
EXERCISES AND SUCH EXERCISES ARE BEING CONDUCTED IN DIRECT VIOLATION OF
THE RIGHTS OF THE APPELLEES AND PETITIONERS.  (FN9)  NOR ARE THESE
REQUIRED EXERCISES MITIGATED BY THE FACT THAT INDIVIDUAL STUDENTS MAY
ABSENT THEMSELVES UPON PARENTAL REQUEST, FOR THAT FACT FURNISHES NO
DEFENSE TO A CLAIM OF UNCONSTITUTIONALITY UNDER THE ESTABLISHMENT
CLAUSE.  SEE ENGEL V. VITALE, SUPRA, AT 430.  FURTHER, IT IS NO DEFENSE
TO URGE THAT THE RELIGIOUS PRACTICES HERE MAY BE RELATIVELY MINOR
ENCROACHMENTS ON THE FIRST AMENDMENT.  THE BREACH OF NEUTRALITY THAT IS
TODAY A TRICKLING STREAM MAY ALL TOO SOON BECOME A RAGING TORRENT AND,
IN THE WORDS OF MADISON, "IT IS PROPER TO TAKE ALARM AT THE FIRST
EXPERIMENT ON OUR LIBERTIES."  MEMORIAL AND REMONSTRANCE AGAINST
RELIGIOUS ASSESSMENTS, QUOTED IN EVERSON, SUPRA, AT 65. 

IT IS INSISTED THAT UNLESS THESE RELIGIOUS EXERCISES ARE PERMITTED A
"RELIGION OF SECULARISM" IS ESTABLISHED IN THE SCHOOLS.  WE AGREE OF
COURSE THAT THE STATE MAY NOT ESTABLISH A "RELIGION OF SECULARISM" IN
THE SENSE OF AFFIRMATIVELY OPPOSING OR SHOWING HOSTILITY TO RELIGION,
THUS "PREFERRING THOSE WHO BELIEVE IN NO RELIGION OVER THOSE WHO DO
BELIEVE."  ZORACH V. CLAUSON, SUPRA, AT 314.  WE DO NOT AGREE, HOWEVER,
THAT THIS DECISION IN ANY SENSE HAS THAT EFFECT.  IN ADDITION, IT MIGHT
WELL BE SAID THAT ONE'S EDUCATION IS NOT COMPLETE WITHOUT A STUDY OF
COMPARATIVE RELIGION OR THE HISTORY OF RELIGION AND ITS RELATIONSHIP TO
THE ADVANCEMENT OF CIVILIZATION.  IT CERTAINLY MAY BE SAID THAT THE
BIBLE IS WORTHY OF STUDY FOR ITS LITERARY AND HISTORIC QUALITIES. 
NOTHING WE HAVE SAID HERE INDICATES THAT SUCH STUDY OF THE BIBLE OR OF
RELIGION, WHEN PRESENTED OBJECTIVELY AS PART OF A SECULAR PROGRAM OF
EDUCATION, MAY NOT BE EFFECTED CONSISTENTLY WITH THE FIRST AMENDMENT. 
BUT THE EXERCISES HERE DO NOT FALL INTO THOSE CATEGORIES.  THEY ARE
RELIGIOUS EXERCISES, REQUIRED BY THE STATES IN VIOLATION OF THE COMMAND
OF THE FIRST AMENDMENT THAT THE GOVERNMENT MAINTAIN STRICT NEUTRALITY,
NEITHER AIDING NOR OPPOSING RELIGION. 

FINALLY, WE CANNOT ACCEPT THAT THE CONCEPT OF NEUTRALITY, WHICH DOES
NOT PERMIT A STATE TO REQUIRE A RELIGIOUS EXERCISE EVEN WITH THE
CONSENT OF THE MAJORITY OF THOSE AFFECTED, COLLIDES WITH THE MAJORITY'S
RIGHT TO FREE EXERCISE OF RELIGION.  (FN10)  WHILE THE FREE EXERCISE
CLAUSE CLEARLY PROHIBITS THE USE OF STATE ACTION TO DENY THE RIGHTS OF
FREE EXERCISE TO ANYONE, IT HAS NEVER MEANT THAT A MAJORITY COULD USE
THE MACHINERY OF THE STATE TO PRACTICE ITS BELIEFS.  SUCH A CONTENTION
WAS EFFECTIVELY ANSWERED BY MR. JUSTICE JACKSON FOR THE COURT IN WEST
VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 638, (1943): 

"THE VERY PURPOSE OF A BILL OF RIGHTS WAS TO WITHDRAW CERTAIN
SUBJECTS FROM THE VICISSITUDES OF POLITICAL CONTROVERSY, TO PLACE THEM
BEYOND THE REACH OF MAJORITIES AND OFFICIALS AND TO ESTABLISH THEM AS
LEGAL PRINCIPLES TO BE APPLIED BY THE COURTS.  ONE'S RIGHT TO  ...
FREEDOM OF WORSHIP  ... AND OTHER FUNDAMENTAL RIGHTS MAY NOT BE
SUBMITTED TO VOTE; THEY DEPEND ON THE OUTCOME OF NO ELECTIONS." 

THE PLACE OF RELIGION IN OUR SOCIETY IS AN EXALTED ONE, ACHIEVED
THROUGH A LONG TRADITION OF RELIANCE ON THE HOME, THE CHURCH AND THE
INVIOLABLE CITADEL OF THE INDIVIDUAL HEART AND MIND.  WE HAVE COME TO
RECOGNIZE THROUGH BITTER EXPERIENCE THAT IT IS NOT WITHIN THE POWER OF
GOVERNMENT TO INVADE THAT CITADEL, WHETHER ITS PURPOSE OR EFFECT BE TO
AID OR OPPOSE, TO ADVANCE OR RETARD.  IN THE RELATIONSHIP BETWEEN MAN
AND RELIGION, THE STATE IS FIRMLY COMMITTED TO A POSITION OF
NEUTRALITY.  THOUGH THE APPLICATION OF THAT RULE REQUIRES
INTERPRETATION OF A DELICATE SORT, THE RULE ITSELF IS CLEARLY AND
CONCISELY STATED IN THE WORDS OF THE FIRST AMENDMENT.  APPLYING THAT
RULE TO THE FACTS OF THESE CASES, WE AFFIRM THE JUDGMENT IN NO. 142. 
IN NO. 119, THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE
MARYLAND COURT OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THE ACTION WAS BROUGHT IN 1958, PRIOR TO THE 1959 AMENDMENT OF
SEC. 15-1516 AUTHORIZING A CHILD'S NONATTENDANCE AT THE EXERCISES UPON
PARENTAL REQUEST.  THE THREE-JUDGE COURT HELD THE STATUTE AND THE
PRACTICES COMPLAINED OF UNCONSTITUTIONAL UNDER BOTH THE ESTABLISHMENT
CLAUSE AND THE FREE EXERCISE CLAUSE.  177 F. SUPP. 398.  PENDING APPEAL
TO THIS COURT BY THE SCHOOL DISTRICT, THE STATUTE WAS SO AMENDED, AND
WE VACATED THE JUDGMENT AND REMANDED FOR FURTHER PROCEEDINGS.  364 U.S.
298.  THE SAME THREE-JUDGE COURT GRANTED APPELLEES' MOTION TO AMEND THE
PLEADINGS, 195 F. SUPP. 518, HELD A HEARING ON THE AMENDED PLEADINGS
AND RENDERED THE JUDGMENT, 201 F. SUPP. 815, FROM WHICH APPEAL IS NOW
TAKEN. 

FN2  THE STATUTE AS AMENDED IMPOSES NO PENALTY UPON A TEACHER
REFUSING TO OBEY ITS MANDATE.  HOWEVER, IT REMAINS TO BE SEEN WHETHER
ONE REFUSING COULD HAVE HIS CONTRACT OF EMPLOYMENT TERMINATED FOR
"WILFUL VIOLATION OF THE SCHOOL LAWS."  24 PA. STAT. (SUPP 1960) SEC.
11-1122. 

FN3  THE TRIAL COURT SUMMARIZED HIS TESTIMONY AS FOLLOWS: 

"EDWARD SCHEMPP, THE CHILDREN'S FATHER, TESTIFIED THAT AFTER CAREFUL
CONSIDERATION HE HAD DECIDED THAT HE SHOULD NOT HAVE ROGER OR DONNA
EXCUSED FROM ATTENDANCE AT THESE MORNING CEREMONIES.  AMONG HIS REASONS
WERE THE FOLLOWING.  HE SAID THAT HE THOUGHT HIS CHILDREN WOULD BE
'LABELED AS "ODD BALLS"' BEFORE THEIR TEACHERS AND CLASSMATES EVERY
SCHOOL DAY; THAT CHILDREN, LIKE ROGER'S AND DONNA'S CLASSMATES, WERE
LIABLE 'TO LUMP ALL PARTICULAR RELIGIOUS DIFFERENCES OR RELIGIOUS
OBJECTIONS TOGETHER AS "ATHEISM"' AND THAT TODAY THE WORD 'ATHEISM' IS
OFTEN CONNECTED WITH 'ATHEISTIC COMMUNISM,' AND HAS 'VERY BAD'
CONNOTATIONS, SUCH AS 'UN-AMERICAN' OR 'ANTI-RED,' WITH OVERTONES OF
POSSIBLE IMMORALITY.  MR. SCHEMPP POINTED OUT THAT DUE TO THE EVENTS OF
THE MORNING EXERCISES FOLLOWING IN RAPID SUCCESSION, THE BIBLE READING,
THE LORD'S PRAYER, THE FLAG SALUTE, AND THE ANNOUNCEMENTS, EXCUSING HIS
CHILDREN FROM THE BIBLE READING WOULD MEAN THAT PROBABLY THEY WOULD
MISS HEARING THE ANNOUNCEMENTS SO IMPORTANT TO CHILDREN.  HE TESTIFIED
ALSO THAT IF ROGER AND DONNA WERE EXCUSED FROM BIBLE READING THEY WOULD
HAVE TO STAND IN THE HALL OUTSIDE THEIR 'HOMEROOM' AND THAT THIS
CARRIED WITH IT THE IMPUTATION OF PUNISHMENT FOR BAD CONDUCT."  201 F.
SUPP., AT 818. 

FN4  THE RULE AS AMENDED PROVIDES AS FOLLOWS: 

"OPENING EXERCISES.  EACH SCHOOL, EITHER COLLECTIVELY OR IN CLASSES,
SHALL BE OPENED BY THE READING, WITHOUT COMMENT, OF A CHAPTER IN THE
HOLY BIBLE AND/OR THE USE OF THE LORD'S PRAYER.  THE DOUAY VERSION MAY
BE USED BY THOSE PUPILS WHO PREFER IT.  APPROPRIATE PATRIOTIC EXERCISES
SHOULD BE HELD AS A PART OF THE GENERAL OPENING EXERCISE OF THE SCHOOL
OR CLASS.  ANY CHILD SHALL BE EXCUSED FROM PARTICIPATING IN THE OPENING
EXERCISES OR FROM ATTENDING THE OPENING EXERCISES UPON THE WRITTEN
REQUEST OF HIS PARENT OR GUARDIAN." 

FN5  THERE WERE ESTABLISHED CHURCHES IN AT LEAST EIGHT OF THE
ORIGINAL COLONIES, AND VARIOUS DEGREES OF RELIGIOUS SUPPORT IN OTHERS
AS LATE AS THE REVOLUTIONARY WAR.  SEE ENGEL V. VITALE, SUPRA, AT 428,
N. 10. 

FN6  "THERE GOES MANY A SHIP TO SEA, WITH MANY HUNDRED SOULS IN ONE
SHIP, WHOSE WEAL AND WOE IS COMMON, AND IS A TRUE PICTURE OF A
COMMONWEALTH, OR HUMAN COMBINATION, OR SOCIETY.  IT HATH FALLEN OUT
SOMETIMES, THAT BOTH PAPISTS AND PROTESTANTS, JEWS AND TURKS, MAY BE
EMBARKED IN ONE SHIP; UPON WHICH SUPPOSAL, I AFFIRM THAT ALL THE
LIBERTY OF CONSCIENCE I EVER PLEADED FOR, TURNS UPON THESE TWO HINGES,
THAT NONE OF THE PAPISTS, PROTESTANTS, JEWS, OR TURKS BE FORCED TO COME
TO THE SHIP'S PRAYERS OR WORSHIP, NOR COMPELLED FROM THEIR OWN
PARTICULAR PRAYERS OR WORSHIP, IF THEY PRACTICE ANY." 

FN7  SUPERIOR COURT OF CINCINNATI, FEBRUARY 1870.  THE OPINION IS NOT
REPORTED BUT IS PUBLISHED UNDER THE TITLE, THE BIBLE IN THE COMMON
SCHOOLS (CINCINNATI:  ROBERT CLARKE & CO. 1870).  JUDGE TAFT'S VIEWS,
EXPRESSED IN DISSENT, PREVAILED ON APPEAL.  SEE BOARD OF EDUCATION OF
CINCINNATI V. MINOR, 23 OHIO ST. 211, 253 (1872), IN WHICH THE OHIO
SUPREME COURT HELD THAT:    "THE GREAT BULK OF HUMAN AFFAIRS AND HUMAN
INTERESTS IS LEFT BY ANY FREE GOVERNMENT TO INDIVIDUAL ENTERPRISE AND
INDIVIDUAL ACTION.  RELIGION IS EMINENTLY ONE OF THESE INTERESTS, LYING
OUTSIDE THE TRUE AND LEGITIMATE PROVINCE OF GOVERNMENT." 

FN8  APPLICATION TO THE STATES OF OTHER CLAUSES OF THE FIRST
AMENDMENT OBTAINED EVEN BEFORE CANTWELL.  ALMOST 40 YEARS AGO IN THE
OPINION OF THE COURT IN GITLOW V. NEW YORK, 268 U.S. 652, 666 (1925),
MR. JUSTICE SANFORD SAID:  "FOR PRESENT PURPOSES WE MAY AND DO ASSUME
THAT FREEDOM OF SPEECH AND OF THE PRESS - WHICH ARE PROTECTED BY THE
FIRST AMENDMENT FROM ABRIDGMENT BY CONGRESS - ARE AMONG THE FUNDAMENTAL
PERSONAL RIGHTS AND 'LIBERTIES' PROTECTED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT FROM IMPAIRMENT BY THE STATES." 

FN9  IT GOES WITHOUT SAYING THAT THE LAWS AND PRACTICES INVOLVED HERE
CAN BE CHALLENGED ONLY BY PERSONS HAVING STANDING TO COMPLAIN.  BUT THE
REQUIREMENTS FOR STANDING TO CHALLENGE STATE ACTION UNDER THE
ESTABLISHMENT CLAUSE, UNLIKE THOSE RELATING TO THE FREE EXERCISE
CLAUSE, DO NOT INCLUDE PROOF THAT PARTICULAR RELIGIOUS FREEDOMS ARE
INFRINGED.  MCGOWAN V. MARYLAND, SUPRA, AT 429-430.  THE PARTIES HERE
ARE SCHOOL CHILDREN AND THEIR PARENTS, WHO ARE DIRECTLY AFFECTED BY THE
LAWS AND PRACTICES AGAINST WHICH THEIR COMPLAINTS ARE DIRECTED.  THESE
INTERESTS SURELY SUFFICE TO GIVE THE PARTIES STANDING TO COMPLAIN.  SEE
ENGEL V. VITALE, SUPRA.  CF. MCCOLLUM V. BOARD OF EDUCATION, SUPRA;
EVERSON V. BOARD OF EDUCATION, SUPRA.  COMPARE DOREMUS V. BOARD OF
EDUCATION, 342 U.S. 429 (1952), WHICH INVOLVED THE SAME SUBSTANTIVE
ISSUED PRESENTED HERE.  THE APPEAL WAS THERE DISMISSED UPON THE
GRADUATION OF THE SCHOOL CHILD INVOLVED AND BECAUSE OF THE APPELLANTS'
FAILURE TO ESTABLISH STANDING AS TAXPAYERS. 

FN10  WE ARE NOT OF COURSE PRESENTED WITH AND THEREFORE DO NOT PASS
UPON A SITUATION SUCH AS MILITARY SERVICE, WHERE THE GOVERNMENT
REGULATES THE TEMPORAL AND GEOGRAPHIC ENVIRONMENT OF INDIVIDUALS TO A
POINT THAT, UNLESS IT PERMITS VOLUNTARY RELIGIOUS SERVICES TO BE
CONDUCTED WITH THE USE OF GOVERNMENT FACILITIES, MILITARY PERSONNEL
WOULD BE UNABLE TO ENGAGE IN THE PRACTICE OF THEIR FAITHS. 

MR. JUSTICE DOUGLAS, CONCURRING. 

I JOIN THE OPINION OF THE COURT AND ADD A FEW WORDS IN EXPLANATION. 

WHILE THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT IS WRITTEN IN
TERMS OF WHAT THE STATE MAY NOT REQUIRE OF THE INDIVIDUAL, THE
ESTABLISHMENT CLAUSE, SERVING THE SAME GOAL OF INDIVIDUAL RELIGIOUS
FREEDOM, IS WRITTEN IN DIFFERENT TERMS. 

ESTABLISHMENT OF A RELIGION CAN BE ACHIEVED IN SEVERAL WAYS.  THE
CHURCH AND STATE CAN BE ONE; THE CHURCH MAY CONTROL THE STATE OR THE
STATE MAY CONTROL THE CHURCH; OR THE RELATIONSHIP MAY TAKE ONE OF
SEVERAL POSSIBLE FORMS OF A WORKING ARRANGEMENT BETWEEN THE TWO
BODIES.  (FN1)  UNDER ALL OF THESE ARRANGEMENTS THE CHURCH TYPICALLY
HAS A PLACE IN THE STATE'S BUDGET, AND CHURCH LAW USUALLY GOVERNS SUCH
MATTERS AS BAPTISM, MARRIAGE, DIVORCE AND SEPARATION, AT LEAST FOR ITS
MEMBERS AND SOMETIMES FOR THE ENTIRE BODY POLITIC.  (FN2)  EDUCATION,
TOO, IS USUALLY HIGH ON THE PRIORITY LIST OF CHURCH INTERESTS.  (FN3)
IN THE PAST SCHOOLS WERE OFTEN MADE THE EXCLUSIVE RESPONSIBILITY OF THE
CHURCH.  TODAY IN SOME STATE-CHURCH COUNTRIES THE STATE RUNS THE PUBLIC
SCHOOLS, BUT COMPULSORY RELIGIOUS EXERCISES ARE OFTEN REQUIRED OF SOME
OR ALL STUDENTS.  THUS, UNDER THE AGREEMENT FRANCO MADE WITH THE HOLY
SEE WHEN HE CAME TO POWER IN SPAIN, "THE CHURCH REGAINED ITS PLACE IN
THE NATIONAL BUDGET.  IT INSISTS ON BAPTIZING ALL CHILDREN AND HAS MADE
THE CATECHISM OBLIGATORY IN STATE SCHOOLS."  (FN4) 

THE VICE OF ALL SUCH ARRANGEMENTS UNDER THE ESTABLISHMENT CLAUSE IS
THAT THE STATE IS LENDING ITS ASSISTANCE TO A CHURCH'S EFFORTS TO GAIN
AND KEEP ADHERENTS.  UNDER THE FIRST AMENDMENT IT IS STRICTLY A MATTER
FOR THE INDIVIDUAL AND HIS CHURCH AS TO WHAT CHURCH HE WILL BELONG TO
AND HOW MUCH SUPPORT, IN THE WAY OF BELIEF, TIME, ACTIVITY OR MONEY, HE
WILL GIVE TO IT.  "THIS PURE RELIGIOUS LIBERTY" "DECLARED  ...  (ALL
FORMS OF CHURCH-STATE RELATIONSHIPS) AND THEIR FUNDAMENTAL IDEA TO BE
OPPRESSIONS OF CONSCIENCE AND ABRIDGMENTS OF THAT LIBERTY WHICH GOD AND
NATURE HAD CONFERRED ON EVERY LIVING SOUL."  (FN5) 

IN THESE CASES WE HAVE NO COERCIVE RELIGIOUS EXERCISE AIMED AT MAKING
THE STUDENTS CONFORM.  THE PRAYERS ANNOUNCED ARE NOT COMPULSORY, THOUGH
SOME MAY THINK THEY HAVE THAT INDIRECT EFFECT BECAUSE THE NONCONFORMIST
STUDENT MAY BE INDUCED TO PARTICIPATE FOR FEAR OF BEING CALLED AN
"ODDBALL."  BUT THAT COERCION, IF IT BE PRESENT, HAS NOT BEEN SHOWN; SO
THE VICES OF THE PRESENT REGIMES ARE DIFFERENT. 

THESE REGIMES VIOLATE THE ESTABLISHMENT CLAUSE IN TWO DIFFERENT
WAYS.  IN EACH CASE THE STATE IS CONDUCTING A RELIGIOUS EXERCISE; AND,
AS THE COURT HOLDS, THAT CANNOT BE DONE WITHOUT VIOLATING THE
"NEUTRALITY" REQUIRED OF THE STATE BY THE BALANCE OF POWER BETWEEN
INDIVIDUAL, CHURCH AND STATE THAT HAS BEEN STRUCK BY THE FIRST
AMENDMENT.  BUT THE ESTABLISHMENT CLAUSE IS NOT LIMITED TO PRECLUDING
THE STATE ITSELF FROM CONDUCTING RELIGIOUS EXERCISES.  IT ALSO FORBIDS
THE STATE TO EMPLOY ITS FACILITIES OR FUNDS IN A WAY THAT GIVES ANY
CHURCH, OR ALL CHURCHES, GREATER STRENGTH IN OUR SOCIETY THAN IT WOULD
HAVE BY RELYING ON ITS MEMBERS ALONE.  THUS, THE PRESENT REGIMES MUST
FALL UNDER THAT CLAUSE FOR THE ADDITIONAL REASON THAT PUBLIC FUNDS,
THOUGH SMALL IN AMOUNT, ARE BEING USED TO PROMOTE A RELIGIOUS
EXERCISE.  THROUGH THE MECHANISM OF THE STATE, ALL OF THE PEOPLE ARE
BEING REQUIRED TO FINANCE A RELIGIOUS EXERCISE THAT ONLY SOME OF THE
PEOPLE WANT AND THAT VIOLATES THE SENSIBILITIES OF OTHERS. 

THE MOST EFFECTIVE WAY TO ESTABLISH ANY INSTITUTION IS TO FINANCE IT;
AND THIS TRUTH IS REFLECTED IN THE APPEALS BY CHURCH GROUPS FOR PUBLIC
FUNDS TO FINANCE THEIR RELIGIOUS SCHOOLS.  (FN6) FINANCING A CHURCH
EITHER IN ITS STRICTLY RELIGIOUS ACTIVITIES OR IN ITS OTHER ACTIVITIES
IS EQUALLY UNCONSTITUTIONAL, AS I UNDERSTAND THE ESTABLISHMENT CLAUSE. 
BUDGETS FOR ONE ACTIVITY MAY BE TECHNICALLY SEPARABLE FROM BUDGETS FOR
OTHERS.  (FN7)  BUT THE INSTITUTION IS AN INSEPARABLE WHOLE, A LIVING
ORGANISM, WHICH IS STRENGTHENED IN PROSELYTIZING WHEN IT IS
STRENGTHENED IN ANY DEPARTMENT BY CONTRIBUTIONS FROM OTHER THAN ITS OWN
MEMBERS. 

SUCH CONTRIBUTIONS MAY NOT BE MADE BY THE STATE EVEN IN A MINOR
DEGREE WITHOUT VIOLATING THE ESTABLISHMENT CLAUSE.  IT IS NOT THE
AMOUNT OF PUBLIC FUNDS EXPENDED; AS THIS CASE ILLUSTRATES, IT IS THE
USE TO WHICH PUBLIC FUNDS ARE PUT THAT IS CONTROLLING.  FOR THE FIRST
AMENDMENT DOES NOT SAY THAT SOME FORMS OF ESTABLISHMENT ARE ALLOWED; IT
SAYS THAT "NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION" SHALL BE
MADE.  WHAT MAY NOT BE DONE DIRECTLY MAY NOT BE DONE INDIRECTLY LEST
THE ESTABLISHMENT CLAUSE BECOME A MOCKERY. 

FN1  SEE BATES, RELIGIOUS LIBERTY:  AN INQUIRY (1945), 9-14, 239-252;
COBB, RELIGIOUS LIBERTY IN AMERICA (1902), 1-2, CC. IV, V; GLEDHILL,
PAKISTAN, THE DEVELOPMENT OF ITS LAWS AND CONSTITUTION (8 BRITISH
COMMONWEALTH, 1957), 11-15; KELLER, CHURCH AND STATE ON THE EUROPEAN
CONTINENT (1936), C. 2; PFEFFER, CHURCH, STATE, AND FREEDOM (1953), C.
2; I STOKES, CHURCH AND STATE IN THE UNITED STATES (1950), 151-169. 

FN2  SEE III STOKES, OP. CIT., SUPRA, N. 1, 42-67; BATES, OP. CIT.,
SUPRA, N. 1, 9-11, 58-59, 98, 245; GLEDHILL, OP. CIT., SUPRA, N. 1,
128, 192, 205, 208; RACKMAN, ISRAEL'S EMERGING CONSTITUTION (1955), 120
134; DRINAN, RELIGIOUS FREEDOM IN ISRAEL, AMERICA (APR. 6, 1963), 456
457. 

FN3  SEE II STOKES, OP. CIT., SUPRA, N. 1, 488-548; BOLES, THE BIBLE,
RELIGION, AND THE PUBLIC SCHOOLS (2D ED. 1963), 4-10; RACKMAN, OP.
CIT., SUPRA, N. 2, AT 136-141; O'BRIEN, THE ENGEL CASE FROM A SWISS
PERSPECTIVE, 61 MICH. L. REV. 1069; FREUND, MUSLIM EDUCATION IN WEST
PAKISTAN, 56 RELIGIOUS EDUCATION 31. 

FN4  BATES, OP. CIT., SUPRA, N. 1, AT 18; PFEFFER, OP. CIT., SUPRA,
N. 1, AT 28-31; THOMAS, THE BALANCE OF FORCES IN SPAIN, 41 FOREIGN
AFFAIRS 208, 210. 

FN5  COBB, OP. CIT., SUPRA, N. 1, AT 2. 

FN6  SEE II STOKES, OP. CIT., SUPRA, N. 1, AT 681-695. 

FN7  SEE ACCOUNTANTS' HANDBOOK (4TH ED. 1956) 4.8-4.15. 

MR. JUSTICE BRENNAN, CONCURRING. 

ALMOST A CENTURY AND A HALF AGO, JOHN MARSHALL, IN M'CULLOCH V.
MARYLAND, ENJOINED: "  ...  WE MUST NEVER FORGET, THAT IT IS A
CONSTITUTION WE ARE EXPOUNDING."  4 WHEAT.  316, 407.  THE COURT'S
HISTORIC DUTY TO EXPOUND THE MEANING OF THE CONSTITUTION HAS
ENCOUNTERED FEW ISSUES MORE INTRICATE OR MORE DEMANDING THAN THAT OF
THE RELATIONSHIP BETWEEN RELIGION AND THE PUBLIC SCHOOLS.  SINCE
UNDOUBTEDLY WE ARE "A RELIGIOUS PEOPLE WHOSE INSTITUTIONS PRESUPPOSE A
SUPREME BEING," ZORACH V. CLAUSON, 343 U.S. 306, 313, DEEP FEELINGS ARE
AROUSED WHEN ASPECTS OF THAT RELATIONSHIP ARE CLAIMED TO VIOLATE THE
INJUNCTION OF THE FIRST AMENDMENT THAT GOVERNMENT MAY MAKE "NO LAW
RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF  ...  ."  AMERICANS REGARD THE PUBLIC SCHOOLS AS A
MOST VITAL CIVIC INSTITUTION FOR THE PRESERVATION OF A DEMOCRATIC
SYSTEM OF GOVERNMENT.  IT IS THEREFORE UNDERSTANDABLE THAT THE
CONSTITUTIONAL PROHIBITIONS ENCOUNTER THEIR SEVEREST TEST WHEN THEY ARE
SOUGHT TO BE APPLIED IN THE SCHOOL CLASSROOM.  NEVERTHELESS IT IS THIS
COURT'S INESCAPABLE DUTY TO DECLARE WHETHER EXERCISES IN THE PUBLIC
SCHOOLS OF THE STATES, SUCH AS THOSE OF PENNSLYVANIA AND MARYLAND
QUESTIONED HERE, ARE INVOLVEMENTS OF RELIGION IN PUBLIC INSTITUTIONS OF
A KIND WHICH OFFENDS THE FIRST AND FOURTEENTH AMENDMENTS. 

WHEN JOHN LOCKE VENTURED IN 1689, "I ESTEEM IT ABOVE ALL THINGS
NECESSARY TO DISTINGUISH EXACTLY THE BUSINESS OF CIVIL GOVERNMENT FROM
THAT OF RELIGION AND TO SETTLE THE JUST BOUNDS THAT LIE BETWEEN THE ONE
AND THE OTHER," (FN1) HE ANTICIPATED THE NECESSITY WHICH WOULD BE
THOUGHT BY THE FRAMERS TO REQUIRE ADOPTION OF A FIRST AMENDMENT, BUT
NOT THE DIFFICULTY THAT WOULD BE EXPERIENCED IN DEFINING THOSE "JUST
BOUNDS."  THE FACT IS THAT THE LINE WHICH SEPARATES THE SECULAR FROM
THE SECTARIAN IN AMERICAN LIFE IS ELUSIVE.  THE DIFFICULTY OF DEFINING
THE BOUNDARY WITH PRECISION INHERES IN A PARADOX CENTRAL TO OUR SCHEME
OF LIBERTY.  WHILE OUR INSTITUTIONS REFLECT A FIRM CONVICTION THAT WE
ARE A RELIGIOUS PEOPLE, THOSE INSTITUTIONS BY SOLEMN CONSTITUTIONAL
INJUNCTION MAY NOT OFFICIALLY INVOLVE RELIGION IN SUCH A WAY AS TO
PREFER, DISCRIMINATE AGAINST, OR OPPRESS, A PARTICULAR SECT OR
RELIGION.  EQUALLY THE CONSTITUTION ENJOINS THOSE INVOLVEMENTS OF
RELIGIOUS WITH SECULAR INSTITUTIONS WHICH (A) SERVE THE ESSENTIALLY
RELIGIOUS ACTIVITIES OF RELIGIOUS INSTITUTIONS; (B) EMPLOY THE ORGANS
OF GOVERNMENT FOR ESSENTIALLY RELIGIOUS PURPOSES; OR (C) USE
ESSENTIALLY RELIGIOUS MEANS TO SERVE GOVERNMENTAL ENDS WHERE SECULAR
MEANS WOULD SUFFICE.  THE CONSTITUTIONAL MANDATE EXPRESSES A DELIBERATE
AND CONSIDERED JUDGMENT THAT SUCH MATTERS ARE TO BE LEFT TO THE
CONSCIENCE OF THE CITIZEN, AND DECLARES AS A BASIC POSTULATE OF THE
RELATION BETWEEN THE CITIZEN AND HIS GOVERNMENT THAT "THE RIGHTS OF
CONSCIENCE ARE, IN THEIR NATURE, OF PECULIAR DELICACY, AND WILL LITTLE
BEAR THE GENTLEST TOUCH OF GOVERNMENTAL HAND  ...  ."  (FN2) 

I JOIN FULLY IN THE OPINION AND THE JUDGMENT OF THE COURT.  I SEE NO
ESCAPE FROM THE CONCLUSION THAT THE EXERCISES CALLED IN QUESTION IN
THESE TWO CASES VIOLATE THE CONSTITUTIONAL MANDATE.  THE REASONS WE
GAVE ONLY LAST TERM IN ENGEL V. VITALE, 370 U.S. 421, FOR FINDING IN
THE NEW YORK REGENTS' PRAYER AN IMPERMISSIBLE ESTABLISHMENT OF
RELIGION, COMPEL THE SAME JUDGMENT OF THE PRACTICES AT BAR.  THE
INVOLVEMENT OF THE SECULAR WITH THE RELIGIOUS IS NO LESS INTIMATE HERE;
AND IT IS CONSTITUTIONALLY IRRELEVANT THAT THE STATE HAS NOT COMPOSED
THE MATERIAL FOR THE INSPIRATIONAL EXERCISES PRESENTLY INVOLVED.  IT
SHOULD BE UNNECESSARY TO OBSERVE THAT OUR HOLDING DOES NOT DECLARE THAT
THE FIRST AMENDMENT MANIFESTS HOSTILITY TO THE PRACTICE OR TEACHING OF
RELIGION, BUT ONLY APPLIES PROHIBITIONS INCORPORATED IN THE BILL OF
RIGHTS IN RECOGNITION OF HISTORIC NEEDS SHARED BY CHURCH AND STATE
ALIKE.  WHILE IT IS MY VIEW THAT NOT EVERY INVOLVEMENT OF RELIGION IN
PUBLIC LIFE IS UNCONSTITUTIONAL, I CONSIDER THE EXERCISES AT BAR A FORM
OF INVOLVEMENT WHICH CLEARLY VIOLATES THE ESTABLISHMENT CLAUSE. 

THE IMPORTANCE OF THE ISSUE AND THE DEEP CONVICTION WITH WHICH VIEWS
ON BOTH SIDES ARE HELD SEEM TO ME TO JUSTIFY DETAILING AT SOME LENGTH
MY REASONS FOR JOINING THE COURT'S JUDGMENT AND OPINION. 

                                       I. 

THE FIRST AMENDMENT FORBIDS BOTH THE ABRIDGMENT OF THE FREE EXERCISE
OF RELIGION AND THE ENACTMENT OF LAWS "RESPECTING AN ESTABLISHMENT OF
RELIGION."  THE TWO CLAUSES, ALTHOUGH DISTINCT IN THEIR OBJECTIVES AND
THEIR APPLICABILITY, EMERGED TOGETHER FROM A COMMON PANORAMA OF
HISTORY.  THE INCLUSION OF BOTH RESTRAINTS UPON THE POWER OF CONGRESS
TO LEGISLATE CONCERNING RELIGIOUS MATTERS SHOWS UNMISTAKABLY THAT THE
FRAMERS OF THE FIRST AMENDMENT WERE NOT CONTENT TO REST THE PROTECTION
OF RELIGIOUS LIBERTY EXCLUSIVELY UPON EITHER CLAUSE.  "IN ASSURING THE
FREE EXERCISE OF RELIGION," MR. JUSTICE FRANKFURTER HAS SAID, "THE
FRAMERS OF THE FIRST AMENDMENT WERE SENSITIVE TO THE THEN RECENT
HISTORY OF THOSE PERSECUTIONS AND IMPOSITIONS OF CIVIL DISABILITY WITH
WHICH SECTARIAN MAJORITIES IN VIRTUALLY ALL OF THE COLONIES HAD VISITED
DEVIATION IN THE MATTER OF CONSCIENCE.  THIS PROTECTION OF UNPOPULAR
CREEDS, HOWEVER, WAS NOT TO BE THE FULL EXTENT OF THE AMENDMENT'S
GUARANTEE OF FREEDOM FROM GOVERNMENTAL INTRUSION IN MATTERS OF FAITH. 
THE BATTLE IN VIRGINIA, HARDLY FOUR YEARS WON, WHERE JAMES MADISON HAD
LED THE FORCES OF DISESTABLISHMENT IN SUCCESSFUL OPPOSITION TO PATRICK
HENRY'S PROPOSED ASSESSMENT BILL LEVYING A GENERAL TAX FOR THE SUPPORT
OF CHRISTIAN TEACHERS, WAS A VITAL AND COMPELLING MEMORY IN 1789." 
MCGOWAN V. MARYLAND, 366 U.S. 420, 464-465.    IT IS TRUE THAT THE
FRAMERS' IMMEDIATE CONCERN WAS TO PREVENT THE SETTING UP OF AN OFFICIAL
FEDERAL CHURCH OF THE KIND WHICH ENGLAND AND SOME OF THE COLONIES HAD
LONG SUPPORTED.  BUT NOTHING IN THE TEXT OF THE ESTABLISHMENT CLAUSE
SUPPORTS THE VIEW THAT THE PREVENTION OF THE SETTING UP OF AN OFFICIAL
CHURCH WAS MEANT TO BE THE FULL EXTENT OF THE PROHIBITIONS AGAINST
OFFICIAL INVOLVEMENTS IN RELIGION.  IT HAS RIGHTLY BEEN SAID: 

"IF THE FRAMERS OF THE AMENDMENT MEANT TO PROHIBIT CONGRESS MERELY
FROM THE ESTABLISHMENT OF A 'CHURCH,' ONE MAY PROPERLY WONDER WHY THEY
DIDN'T SO STATE.  THAT THE WORDS CHURCH AND RELIGION WERE REGARDED AS
SYNONYMOUS SEEMS HIGHLY IMPROBABLE, PARTICULARLY IN VIEW OF THE FACT
THAT THE CONTEMPORARY STATE CONSTITUTIONAL PROVISIONS DEALING WITH THE
SUBJECT OF ESTABLISHMENT USED DEFINITE PHRASES SUCH AS 'RELIGIOUS
CONTEMPORARY STATE CONSTITUTIONS, WHY WAS NOT A SIMILAR WORDING ADOPTED
FOR THE FIRST AMENDMENT IF ITS FRAMERS INTENDED TO PROHIBIT NOTHING
MORE THAN WHAT THE STATES WERE PROHIBITING?"  LARDNER, HOW FAR DOES THE
CONSTITUTION SEPARATE CHURCH AND STATE?  45 AM. POL.  SCI.  REV. 110,
112 (1951). 

PLAINLY, THE ESTABLISHMENT CLAUSE, IN THE CONTEMPLATION OF THE
FRAMERS, "DID NOT LIMIT THE CONSTITUTIONAL PROSCRIPTION TO ANY
PARTICULAR, DATED FORM OF STATE-SUPPORTED THEOLOGICAL VENTURE."  "WHAT
VIRGINIA HAD LONG PRACTICED, AND WHAT MADISON, JEFFERSON AND OTHERS
FOUGHT TO END, WAS THE EXTENSION OF CIVIL GOVERNMENT'S SUPPORT TO
RELIGION IN A MANNER WHICH MADE THE TWO IN SOME DEGREE INTERDEPENDENT,
AND THUS THREATENED THE FREEDOM OF EACH.  THE PURPOSE OF THE
ESTABLISHMENT CLAUSE WAS TO ASSURE THAT THE NATIONAL LEGISLATURE WOULD
NOT EXERT ITS POWER IN THE SERVICE OF ANY PURELY RELIGIOUS END; THAT IT
WOULD NOT, AS VIRGINIA AND VIRTUALLY ALL OF THE COLONIES HAD DONE, MAKE
OF RELIGION, AS RELIGION, AN OBJECT OF LEGISLATION  ...  .  THE
ESTABLISHMENT CLAUSE WITHDREW FROM THE SPHERE OF LEGITIMATE LEGISLATIVE
CONCERN AND COMPETENCE A SPECIFIC, BUT COMPREHENSIVE, AREA OF HUMAN
CONDUCT: MAN'S BELIEF OR DISBELIEF IN THE VERITY OF SOME TRANSCENDENTAL
IDEA AND MAN'S EXPRESSION IN ACTION OF THAT BELIEF OR DISBELIEF." 
MCGOWAN V. MARYLAND, SUPRA, AT 465-466 (OPINION OF FRANKFURTER, J.). 

IN SUM, THE HISTORY WHICH OUR PRIOR DECISIONS HAVE SUMMONED TO AID
INTERPRETATION OF THE ESTABLISHMENT CLAUSE PERMITS LITTLE DOUBT THAT
ITS PROHIBITION WAS DESIGNED COMPREHENSIVELY TO PREVENT THOSE OFFICIAL
INVOLVEMENTS OF RELIGION WHICH WOULD TEND TO FOSTER OR DISCOURAGE
RELIGIOUS WORSHIP OR BELIEF. 

BUT AN AWARENESS OF HISTORY AND AN APPRECIATION OF THE AIMS OF THE
FOUNDING FATHERS DO NOT ALWAYS RESOLVE CONCRETE PROBLEMS.  THE SPECIFIC
QUESTION BEFORE US HAS, FOR EXAMPLE, AROUSED VIGOROUS DISPUTE WHETHER
THE ARCHITECTS OF THE FIRST AMENDMENT - JAMES MADISON AND THOMAS
JEFFERSON PARTICULARLY - UNDERSTOOD THE PROHIBITION AGAINST ANY "LAW
RESPECTING AN ESTABLISHMENT OF RELIGION" TO REACH DEVOTIONAL EXERCISES
IN THE PUBLIC SCHOOLS.  (FN3)  IT MAY BE THAT JEFFERSON AND MADISON
WOULD HAVE HELD SUCH EXERCISES TO BE PERMISSIBLE - ALTHOUGH EVEN IN
JEFFERSON'S CASE SERIOUS DOUBT IS SUGGESTED BY HIS ADMONITION AGAINST
"PUTTING THE BIBLE AND TESTAMENT INTO THE HANDS OF THE CHILDREN AT AN
AGE WHEN THEIR JUDGMENTS ARE NOT SUFFICIENTLY MATURED FOR RELIGIOUS
INQUIRIES  ... ."  (FN4)  BUT I DOUBT THAT THEIR VIEW, EVEN IF
PERFECTLY CLEAR ONE WAY OR THE OTHER, WOULD SUPPLY A DISPOSITIVE ANSWER
TO THE QUESTION PRESENTED BY THESE CASES.  A MORE FRUITFUL INQUIRY, IT
SEEMS TO ME, IS WHETHER THE PRACTICES HERE CHALLENGED THREATEN THOSE
CONSEQUENCES WHICH THE FRAMERS DEEPLY FEARED; WHETHER, IN SHORT, THEY
TEND TO PROMOTE THAT TYPE OF INTERDEPENDENCE BETWEEN RELIGION AND STATE
WHICH THE FIRST AMENDMENT WAS DESIGNED TO PREVENT.  (FN5)  OUR TASK IS
TO TRANSLATE "THE MAJESTIC GENERALITIES OF THE BILL OF RIGHTS,
CONCEIVED AS PART OF THE PATTERN OF LIBERAL GOVERNMENT IN THE
EIGHTEENTH CENTURY, INTO CONCRETE RESTRAINTS ON OFFICIALS DEALING WITH
THE PROBLEMS OF THE TWENTIETH CENTURY  ...  ."  WEST VIRGINIA STATE
BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 639. 

A TOO LITERAL QUEST FOR THE ADVICE OF THE FOUNDING FATHERS UPON THE
ISSUES OF THESE CASES SEEMS TO ME FUTILE AND MISDIRECTED FOR SEVERAL
REASONS:  FIRST, ON OUR PRECISE PROBLEM THE HISTORICAL RECORD IS AT
BEST AMBIGUOUS, AND STATEMENTS CAN READILY BE FOUND TO SUPPORT EITHER
SIDE OF THE PROPOSITION.   THE AMBIGUITY OF HISTORY IS UNDERSTANDABLE
IF WE RECALL THE NATURE OF THE PROBLEMS UPPERMOST IN THE THINKING OF
THE STATESMEN WHO FASHIONED THE RELIGIOUS GUARANTEES; THEY WERE
CONCERNED WITH FAR MORE FLAGRANT INTRUSIONS OF GOVERNMENT INTO THE
REALM OF RELIGION THAN ANY THAT OUR CENTURY HAS WITNESSED.  (FN6)
WHILE IT IS CLEAR TO ME THAT THE FRAMERS MEANT THE ESTABLISHMENT CLAUSE
TO PROHIBIT MORE THAN THE CREATION OF AN ESTABLISHED FEDERAL CHURCH
SUCH AS EXISTED IN ENGLAND, I HAVE NO DOUBT THAT, IN THEIR
PREOCCUPATION WITH THE IMMINENT QUESTION OF ESTABLISHED CHURCHES, THEY
GAVE NO DISTINCT CONSIDERATION TO THE PARTICULAR QUESTION WHETHER THE
CLAUSE ALSO FORBADE DEVOTIONAL EXERCISES IN PUBLIC INSTITUTIONS. 

SECOND, THE STRUCTURE OF AMERICAN EDUCATION HAS GREATLY CHANGED SINCE
THE FIRST AMENDMENT WAS ADOPTED.  IN THE CONTEXT OF OUR MODERN EMPHASIS
UPON PUBLIC EDUCATION AVAILABLE TO ALL CITIZENS, ANY VIEWS OF THE
EIGHTEENTH CENTURY AS TO WHETHER THE EXERCISES AT BAR ARE AN
"ESTABLISHMENT" OFFER LITTLE AID TO DECISION.  EDUCATION, AS THE
FRAMERS KNEW IT, WAS IN THE MAIN CONFINED TO PRIVATE SCHOOLS MORE OFTEN
THAN NOT UNDER STRICTLY SECTARIAN SUPERVISION.  ONLY GRADUALLY DID
CONTROL OF EDUCATION PASS LARGELY TO PUBLIC OFFICIALS.  (FN7)  IT
WOULD, THEREFORE, HARDLY BE SIGNIFICANT IF THE FACT WAS THAT THE NEARLY
UNIVERSAL DEVOTIONAL EXERCISES IN THE SCHOOLS OF THE YOUNG REPUBLIC DID
NOT PROVOKE CRITICISM; EVEN TODAY RELIGIOUS CEREMONIES IN CHURCH
SUPPORTED PRIVATE SCHOOLS ARE CONSTITUTIONALLY UNOBJECTIONABLE. 

THIRD, OUR RELIGIOUS COMPOSITION MAKES US A VASTLY MORE DIVERSE
PEOPLE THAN WERE OUR FOREFATHERS.  THEY KNEW DIFFERENCES CHIEFLY AMONG
PROTESTANT SECTS.  TODAY THE NATION IS FAR MORE HETEROGENEOUS
RELIGIOUSLY, INCLUDING AS IT DOES SUBSTANTIAL MINORITIES NOT ONLY OF
CATHOLICS AND JEWS BUT AS WELL OF THOSE WHO WORSHIP ACCORDING TO NO
VERSION OF THE BIBLE AND THOSE WHO WORSHIP NO GOD AT ALL.  (FN8)  SEE
TORCASO V. WATKINS, 367 U.S. 488, 495.  IN THE FACE OF SUCH PROFOUND
CHANGES, PRACTICES WHICH MAY HAVE BEEN OBJECTIONABLE TO NO ONE IN THE
TIME OF JEFFERSON AND MADISON MAY TODAY BE HIGHLY OFFENSIVE TO MANY
PERSONS, THE DEEPLY DEVOUT AND THE NONBELIEVERS ALIKE. 

WHATEVER JEFFERSON OR MADISON WOULD HAVE THOUGHT OF BIBLE READING OR
THE RECITAL OF THE LORD'S PRAYER IN WHAT FEW PUBLIC SCHOOLS EXISTED IN
THEIR DAY, OUR USE OF THE HISTORY OF THEIR TIME MUST LIMIT ITSELF TO
BROAD PURPOSES, NOT SPECIFIC PRACTICES.  BY SUCH A STANDARD, I AM
PERSUADED, AS IS THE COURT, THAT THE DEVOTIONAL EXERCISES CARRIED ON IN
THE BALTIMORE AND ABINGTON SCHOOLS OFFEND THE FIRST AMENDMENT BECAUSE
THEY SUFFICIENTLY THREATEN IN OUR DAY THOSE SUBSTANTIVE EVILS THE FEAR
OF WHICH CALLED FORTH THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT. 
IT IS "A CONSTITUTION WE ARE EXPOUNDING," AND OUR INTERPRETATION OF THE
FIRST AMENDMENT MUST NECESSARILY BE RESPONSIVE TO THE MUCH MORE HIGHLY
CHARGED NATURE OF RELIGIOUS QUESTIONS IN CONTEMPORARY SOCIETY. 

FOURTH, THE AMERICAN EXPERIMENT IN FREE PUBLIC EDUCATION AVAILABLE TO
ALL CHILDREN HAS BEEN GUIDED IN LARGE MEASURE BY THE DRAMATIC EVOLUTION
OF THE RELIGIOUS DIVERSITY AMONG THE POPULATION WHICH OUR PUBLIC
SCHOOLS SERVE.  THE INTERACTION OF THESE TWO IMPORTANT FORCES IN OUR
NATIONAL LIFE HAS PLACED IN BOLD RELIEF CERTAIN POSITIVE VALUES IN THE
CONSISTENT APPLICATION TO PUBLIC INSTITUTIONS GENERALLY, AND PUBLIC
SCHOOLS PARTICULARLY, OF THE CONSTITUTIONAL DECREE AGAINST OFFICIAL
INVOLVEMENTS OF RELIGION WHICH MIGHT PRODUCE THE EVILS THE FRAMERS
MEANT THE ESTABLISHMENT CLAUSE TO FORESTALL.  THE PUBLIC SCHOOLS ARE
SUPPORTED ENTIRELY, IN MOST COMMUNITIES, BY PUBLIC FUNDS - FUNDS
EXACTED NOT ONLY FROM PARENTS, NOR ALONE FROM THOSE WHO HOLD PARTICULAR
RELIGIOUS VIEWS, NOR INDEED FROM THOSE WHO SUBSCRIBE TO ANY CREED AT
ALL.  IT IS IMPLICIT IN THE HISTORY AND CHARACTER OF AMERICAN PUBLIC
EDUCATION THAT THE PUBLIC SCHOOLS SERVE A UNIQUELY PUBLIC FUNCTION:
THE TRAINING OF AMERICAN CITIZENS IN AN ATMOSPHERE FREE OF PAROCHIAL,
DIVISIVE, OR SEPARATIST INFLUENCES OF ANY SORT - AN ATMOSPHERE IN WHICH
CHILDREN MAY ASSIMILATE A HERITAGE COMMON TO ALL AMERICAN GROUPS AND
RELIGIONS.  SEE ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION, 333
U.S. 203.  THIS IS A HERITAGE NEITHER THEISTIC NOR ATHEISTIC, BUT
SIMPLY CIVIC AND PATRIOTIC.  SEE MEYER V. NEBRASKA, 262 U.S. 390, 400
403. 

ATTENDANCE AT THE PUBLIC SCHOOLS HAS NEVER BEEN COMPULSORY; PARENTS
REMAIN MORALLY AND CONSTITUTIONALLY FREE TO CHOOSE THE ACADEMIC
ENVIRONMENT IN WHICH THEY WISH THEIR CHILDREN TO BE EDUCATED.  THE
RELATIONSHIP OF THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT TO THE
PUBLIC SCHOOL SYSTEM IS PREEMINENTLY THAT OF RESERVING SUCH A CHOICE TO
THE INDIVIDUAL PARENT, RATHER THAN VESTING IT IN THE MAJORITY OF VOTERS
OF EACH STATE OR SCHOOL DISTRICT.  THE CHOICE WHICH IS THUS PRESERVED
IS BETWEEN A PUBLIC SECULAR EDUCATION WITH ITS UNIQUELY DEMOCRATIC
VALUES, AND SOME FORM OF PRIVATE OR SECTARIAN EDUCATION, WHICH OFFERS
VALUES OF ITS OWN.  IN MY JUDGMENT THE FIRST AMENDMENT FORBIDS THE
STATE TO INHIBIT THAT FREEDOM OF CHOICE BY DIMINISHING THE
ATTRACTIVENESS OF EITHER ALTERNATIVE - EITHER BY RESTRICTING THE
LIBERTY OF THE PRIVATE SCHOOLS TO INCULCATE WHATEVER VALUES THEY WISH,
OR BY JEOPARDIZING THE FREEDOM OF THE PUBLIC SCHOOLS FROM PRIVATE OR
EDUCATION IS ONE - VERY MUCH LIKE THE CHOICE OF WHETHER OR NOT TO
WORSHIP - WHICH OUR CONSTITUTION LEAVES TO THE INDIVIDUAL PARENT.  IT
IS NO PROPER FUNCTION OF THE STATE OR LOCAL GOVERNMENT TO INFLUENCE OR
RESTRICT THAT ELECTION.  THE LESSON OF HISTORY - DRAWN MORE FROM THE
EXPERIENCES OF OTHER COUNTRIES THAN FROM OUR OWN - IS THAT A SYSTEM OF
FREE PUBLIC EDUCATION FORFEITS ITS UNIQUE CONTRIBUTION TO THE GROWTH OF
DEMOCRATIC CITIZENSHIP WHEN THAT CHOICE CEASES TO BE FREELY AVAILABLE
TO EACH PARENT. 

                          II. 

THE EXPOSITION BY THIS COURT OF THE RELIGIOUS GUARANTEES OF THE FIRST
AMENDMENT HAS CONSISTENTLY REFLECTED AND REAFFIRMED THE CONCERNS WHICH
IMPELLED THE FRAMERS TO WRITE THOSE GUARANTEES INTO THE CONSTITUTION. 
IT WOULD BE NEITHER POSSIBLE NOR APPROPRIATE TO REVIEW HERE THE ENTIRE
COURSE OF OUR DECISIONS ON RELIGIOUS QUESTIONS.  THERE EMERGE FROM
THOSE DECISIONS, HOWEVER, THREE PRINCIPLES OF PARTICULAR RELEVANCE TO
THE ISSUE PRESENTED BY THE CASES AT BAR, AND SOME ATTENTION TO THOSE
DECISIONS IS THEREFORE APPROPRIATE. 

FIRST.  ONE LINE OF DECISIONS DERIVES FROM CONTESTS FOR CONTROL OF A
CHURCH PROPERTY OR OTHER INTERNAL ECCLESIASTICAL DISPUTES.  THIS LINE
HAS SETTLED THE PROPOSITION THAT IN ORDER TO GIVE EFFECT TO THE FIRST
AMENDMENT'S PURPOSE OF REQUIRING ON THE PART OF ALL ORGANS OF
GOVERNMENT A STRICT NEUTRALITY TOWARD THEOLOGICAL QUESTIONS, COURTS
SHOULD NOT UNDERTAKE TO DECIDE SUCH QUESTIONS.  THESE PRINCIPLES WERE
FIRST EXPOUNDED IN THE CASE OF WATSON V. JONES, 13 WALL.  679, WHICH
DECLARED THAT JUDICIAL INTERVENTION IN SUCH A CONTROVERSY WOULD OPEN UP
"THE WHOLE SUBJECT OF THE DOCTRINAL THEOLOGY, THE USAGES AND CUSTOMS,
THE WRITTEN LAWS, AND FUNDAMENTAL ORGANIZATION OF EVERY RELIGIOUS
DENOMINATION  ...  ."  13 WALL., AT 733.  COURTS ABOVE ALL MUST BE
NEUTRAL, FOR "THE LAW KNOWS NO HERESY, AND IS COMMITTED TO THE SUPPORT
OF NO DOGMA, THE ESTABLISHMENT OF NO SECT."  (FN9)  13 WALL., AT 728. 
THIS PRINCIPLE HAS RECENTLY BEEN REAFFIRMED IN KEDROFF V. ST. NICHOLAS
CATHEDRAL, 344 U.S. 94; AND KRESHIK V. ST. NICHOLAS CATHEDRAL, 363 U.S.
190. 

THE MANDATE OF JUDICIAL NEUTRALITY IN THEOLOGICAL CONTROVERSIES MET
ITS SEVEREST TEST IN UNITED STATES V. BALLARD, 322 U.S. 78.  THAT
DECISION PUT IN SHARP RELIEF CERTAIN PRINCIPLES WHICH BEAR DIRECTLY
UPON THE QUESTIONS PRESENTED IN THESE CASES.  BALLARD WAS INDICTED FOR
FRAUDULENT USE OF THE MAILS IN THE DISSEMINATION OF RELIGIOUS
LITERATURE.  HE REQUESTED THAT THE TRIAL COURT SUBMIT TO THE JURY THE
QUESTION OF THE TRUTHFULNESS OF THE RELIGIOUS VIEWS HE CHAMPIONED.  THE
REQUESTED CHARGE WAS REFUSED, AND WE UPHELD THAT REFUSAL, REASONING
THAT THE FIRST AMENDMENT FORECLOSED ANY JUDICIAL INQUIRY INTO THE TRUTY
OR FALSITY OF THE DEFENDANT'S RELIGIOUS BELIEFS.  WE SAID:  "MAN'S
RELATION TO HIS GOD WAS MADE NO CONCERN OF THE STATE.  HE WAS GRANTED
THE RIGHT TO WORSHIP AS HE PLEASED AND TO ANSWER TO NO MAN FOR THE
VERITY OF HIS RELIGIOUS VIEWS."  "MEN MAY BELIEVE WHAT THEY CANNOT
PROVE.  THEY MAY NOT BE PUT TO THE PROOF OF THEIR RELIGIOUS DOCTRINES
OR BELIEFS ...  . MANY TAKE THEIR GOSPEL FROM THE NEW TESTAMENT.  BUT
IT WOULD HARDLY BE SUPPOSED THAT THEY COULD BE TRIED BEFORE A JURY
CHARGED WITH THE DUTY OF DETERMINING WHETHER THOSE TEACHINGS CONTAINED
FALSE REPRESENTATIONS."  322 U.S., AT 86-87. 

THE DILEMMA PRESENTED BY THE CASE WAS SEVERE.  WHILE THE ALLEGED
TRUTHFULNESS OF NONRELIGIOUS PUBLICATIONS COULD ORDINARILY HAVE BEEN
SUBMITTED TO THE JURY, BALLARD WAS DEPRIVED OF THAT DEFENSE ONLY
BECAUSE THE FIRST AMENDMENT FORBIDS GOVERNMENTAL INQUIRY INTO THE
VERITY OF RELIGIOUS BELIEFS.  IN DISSENT MR. JUSTICE JACKSON EXPRESSED
THE CONCERN THAT UNDER THIS CONSTRUCTION OF THE FIRST AMENDMENT
"PROSECUTIONS OF THIS CHARACTER EASILY COULD DEGENERATE INTO RELIGIOUS
PERSECUTION."  322 U.S., AT 95.  THE CASE SHOWS HOW ELUSIVE IS THE LINE
WHICH ENFORCES THE AMENDMENT'S INJUNCTION OF STRICT NEUTRALITY, WHILE
MANIFESTING NO OFFICIAL HOSTILITY TOWARD RELIGION - A LINE WHICH MUST
BE CONSIDERED IN THE CASES NOW BEFORE US.  (FN10)  SOME MIGHT VIEW THE
RESULT OF THE BALLARD CASE AS A MANIFESTATION OF HOSTILITY - IN THAT
THE CONVICTION STOOD BECAUSE THE DEFENSE COULD NOT BE RAISED.  TO
OTHERS IT MIGHT REPRESENT MERELY STRICT ADHERENCE TO THE PRINCIPLE OF
NEUTRALITY ALREADY EXPOUNDED IN THE CASES INVOLVING DOCTRINAL
DISPUTES.  INEVITABLY, INSISTENCE UPON NEUTRALITY, VITAL AS IT SURELY
IS FOR UNTRAMMELED RELIGIOUS LIBERTY, MAY APPEAR TO BORDER UPON
RELIGIOUS HOSTILITY.  BUT IN THE LONG VIEW THE INDEPENDENCE OF BOTH
CHURCH AND STATE IN THEIR RESPECTIVE SPHERES WILL BE BETTER SERVED BY
CLOSE ADHERENCE TO THE NEUTRALITY PRINCIPLE.  IF THE CHOICE IS OFTEN
DIFFICULT, THE DIFFICULTY IS ENDEMIC TO ISSUES IMPLICATING THE
RELIGIOUS GUARANTEES OF THE FIRST AMENDMENT.  FREEDOM OF RELIGION WILL
BE SERIOUSLY JEOPARDIZED IF WE ADMIT EXCEPTIONS FOR NO BETTER REASON
THAN THE DIFFICULTY OF DELINEATING HOSTILITY FROM NEUTRALITY IN THE
CLOSEST CASES. 

SECOND.  IT IS ONLY RECENTLY THAT OUR DECISIONS HAVE DEALT WITH THE
QUESTION WHETHER ISSUES ARISING UNDER THE ESTABLISHMENT CLAUSE MAY BE
ISOLATED FROM PROBLEMS IMPLICATING THE FREE EXERCISE CLAUSE.  EVERSON
V. BOARD OF EDUCATION, 330 U.S. 1, IS IN MY VIEW THE FIRST OF OUR
DECISIONS WHICH TREATS A PROBLEM OF ASSERTED UNCONSTITUTIONAL
INVOLVEMENT AS RAISING QUESTIONS PURELY UNDER THE ESTABLISHMENT
CLAUSE.  A SCRUTINY OF SEVERAL EARLIER DECISIONS SAID BY SOME TO HAVE
ETCHED THE CONTOURS OF THE CLAUSE SHOWS THAT SUCH CASES NEITHER RAISED
NOR DECIDED ANY CONSTITUTIONAL ISSUES UNDER THE FIRST AMENDMENT. 
BRADFIELD V. ROBERTS, 175 U.S. 291, FOR EXAMPLE, INVOLVED CHALLENGES TO
A FEDERAL GRANT TO A HOSPITAL ADMINISTERED BY A ROMAN CATHOLIC ORDER. 
THE COURT REJECTED THE CLAIM FOR LACK OF EVIDENCE THAT ANY SECTARIAN
INFLUENCE CHANGED ITS CHARACTER AS A SECULAR INSTITUTION CHARTERED AS
SUCH BY THE CONGRESS.  (FN11) 

QUICK BEAR V. LEUPP, 210 U.S. 50, IS ALSO ILLUSTRATIVE.  THE
IMMEDIATE QUESTION THERE WAS ONE OF STATUTORY CONSTRUCTION, ALTHOUGH
THE ISSUE HAD ORIGINALLY INVOLVED THE CONSTITUTIONALITY OF THE USE OF
FEDERAL FUNDS TO SUPPORT SECTARIAN EDUCATION ON INDIAN RESERVATIONS. 
CONGRESS HAD ALREADY PROHIBITED FEDERAL GRANTS FOR THAT PURPOSE,
THEREBY REMOVING THE BROADER ISSUE, LEAVING ONLY THE QUESTION WHETHER
THE STATUTE AUTHORIZED THE APPROPRIATION FOR RELIGIOUS TEACHING OF
TREATY FUNDS HELD BY THE GOVERNMENT IN TRUST FOR THE INDIANS.  SINCE
THESE WERE THE INDIANS' OWN FUNDS, THE COURT HELD ONLY THAT THE INDIANS
MIGHT DIRECT THEIR USE FOR SUCH EDUCATIONAL PURPOSES AS THEY CHOSE, AND
THAT THE ADMINISTRATION BY THE TREASURY OF THE DISBURSEMENT OF THE
FUNDS DID NOT INJECT INTO THE CASE ANY ISSUE OF THE PROPRIETY OF THE
USE OF FEDERAL MONEYS.  (FN12)  INDEED, THE COURT EXPRESSLY APPROVED
THE REASONING OF THE COURT OF APPEALS THAT TO DENY THE INDIANS THE
RIGHT TO SPEND THEIR OWN MONEYS FOR RELIGIOUS PURPOSES OF THEIR CHOICE
MIGHT WELL INFRINGE THE FREE EXERCISE OF THEIR RELIGION:  "IT SEEMS
INCONCEIVABLE THAT CONGRESS SHOULD HAVE INTENDED TO PROHIBIT THEM FROM
RECEIVING RELIGIOUS EDUCATION AT THEIR OWN COST IF THEY SO DESIRED IT
...  ."  210 U.S., AT 82.  THIS CASE FORECAST, HOWEVER, AN INCREASINGLY
TROUBLESOME FIRST AMENDMENT PARADOX:  THAT THE LOGICAL
INTERRELATIONSHIP BETWEEN THE ESTABLISHMENT AND FREE EXERCISE CLAUSES
MAY PRODUCE SITUATIONS WHERE AN INJUNCTION AGAINST AN APPARENT
ESTABLISHMENT MUST BE WITHHELD IN ORDER TO AVOID INFRINGEMENT OF RIGHTS
OF FREE EXERCISE.  THAT PARADOX WAS NOT SQUARELY PRESENTED IN QUICK
BEAR, BUT THE CARE TAKEN BY THE COURT TO AVOID A CONSTITUTIONAL
CONFRONTATION DISCLOSES AN AWARENESS OF POSSIBLE CONFLICTS BETWEEN THE
TWO CLAUSES.  I SHALL COME BACK TO THIS PROBLEM LATER, INFRA, PP. 296
299. 

A THIRD CASE IN THIS GROUP IS COCHRAN V. LOUISIANA STATE BOARD, 281
U.S. 370, WHICH INVOLVED A CHALLENGE TO A STATE STATUTE PROVIDING
PUBLIC FUNDS TO SUPPORT A LOAN OF FREE TEXTBOOKS TO PUPILS OF BOTH
PUBLIC AND PRIVATE SCHOOLS.  THE CONSTITUTIONAL ISSUES IN THIS COURT
EXTENDED NO FURTHER THAN THE CLAIM THAT THIS PROGRAM AMOUNTED TO A
TAKING OF PRIVATE PROPERTY FOR NONPUBLIC USE.  THE COURT REJECTED THE
CLAIM ON THE GROUND THAT NO PRIVATE USE OF PROPERTY WAS INVOLVED; "
...  WE CAN NOT DOUBT THAT THE TAXING POWER OF THE STATE IS EXERTED FOR
A PUBLIC PURPOSE."  281 U.S., AT 375.  THE CASE THEREFORE RAISED NO
ISSUE UNDER THE FIRST AMENDMENT.  (FN13) 

IN PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, A CATHOLIC PAROCHIAL
SCHOOL AND A PRIVATE BUT NONSECTARIAN MILITARY ACADEMY CHALLENGED A
STATE LAW REQUIRING ALL CHILDREN BETWEEN CERTAIN AGES TO ATTEND THE
PUBLIC SCHOOLS.  THIS COURT HELD THE LAW INVALID AS AN ARBITRARY AND
UNREASONABLE INTERFERENCE BOTH WITH THE RIGHTS OF THE SCHOOLS AND WITH
THE LIBERTY OF THE PARENTS OF THE CHILDREN WHO ATTENDED THEM.  THE DUE
PROCESS GUARANTEE OF THE FOURTEENTH AMENDMENT "EXCLUDES ANY GENERAL
POWER OF THE STATE TO STANDARDIZE ITS CHILDREN BY FORCING THEM TO
ACCEPT INSTRUCTION FROM PUBLIC TEACHERS ONLY."  268 U.S., AT 535. 
WHILE ONE OF THE PLAINTIFFS WAS INDEED A PAROCHIAL SCHOOL, THE CASE
OBVIOUSLY DECIDED NO FIRST AMENDMENT QUESTION BUT RECOGNIZED ONLY THE
CONSTITUTIONAL RIGHT TO ESTABLISH AND PATRONIZE PRIVATE SCHOOLS -
INCLUDING PAROCHIAL SCHOOLS - WHICH MEET THE STATE'S REASONABLE MINIMUM
CURRICULAR REQUIREMENTS. 

THIRD.  IT IS TRUE, AS THE COURT SAYS, THAT THE "TWO CLAUSES
(ESTABLISHMENT AND FREE EXERCISE) MAY OVERLAP."  BECAUSE OF THE
OVERLAP, HOWEVER, OUR DECISIONS UNDER THE FREE EXERCISE CLAUSE BEAR
CONSIDERABLE RELEVANCE TO THE PROBLEM NOW BEFORE US, AND SHOULD BE
BRIEFLY REVIEWED.  THE EARLY FREE EXERCISE CASES GENERALLY INVOLVED THE
OBJECTIONS OF RELIGIOUS MINORITIES TO THE APPLICATION TO THEM OF
GENERAL NONRELIGIOUS LEGISLATION GOVERNING CONDUCT.  REYNOLDS V. UNITED
STATES, 98 U.S. 145, INVOLVED THE CLAIM THAT A BELIEF IN THE SANCTITY
OF PLURAL MARRIAGE PRECLUDED THE CONVICTION OF MEMBERS OF A PARTICULAR
COURT REJECTED THE CLAIM, SAYING: 

"LAWS ARE MADE FOR THE GOVERNMENT OF ACTIONS, AND WHILE THEY CANNOT
INTERFERE WITH MERE RELIGIOUS BELIEFS AND OPINIONS, THEY MAY WITH
PRACTICES ...  .  CAN A MAN EXCUSE HIS PRACTICES TO THE CONTRARY
BECAUSE OF HIS RELIGIOUS BELIEF?  TO PERMIT THIS WOULD BE TO MAKE THE
PROFESSED DOCTRINES OF RELIGIOUS BELIEF SUPERIOR TO THE LAW OF THE
LAND, AND IN EFFECT TO PERMIT EVERY CITIZEN TO BECOME A LAW UNTO
HIMSELF.  GOVERNMENT COULD EXIST ONLY IN NAME UNDER SUCH
CIRCUMSTANCES."  (FN14)  98 U.S., AT 166-167. 

DAVIS V. BEASON, 133 U.S. 333, SIMILARLY INVOLVED THE CLAIM THAT THE
FIRST AMENDMENT INSULATED FROM CIVIL PUNISHMENT CERTAIN PRACTICES
INSPIRED OR MOTIVATED BY RELIGIOUS BELIEFS.  THE CLAIM WAS EASILY
REJECTED:  "IT WAS NEVER INTENDED OR SUPPOSED THAT THE AMENDMENT COULD
BE INVOKED AS A PROTECTION AGAINST LEGISLATION FOR THE PUNISHMENT OF
ACTS INIMICAL TO THE PEACE, GOOD ORDER AND MORALS OF SOCIETY."  133
U.S., AT 342.  SEE ALSO MORMON CHURCH V. UNITED STATES, 136 U.S. 1;
JACOBSON V. MASSACHUSETTS, 197 U.S. 11; PRINCE V. MASSACHUSETTS, 321
U.S. 158; CLEVELAND V. UNITED STATES, 329 U.S. 14. 

BUT WE MUST NOT CONFUSE THE ISSUE OF GOVERNMENTAL POWER TO REGULATE
OR PROHIBIT CONDUCT MOTIVATED BY RELIGIOUS BELIEFS WITH THE QUITE
DIFFERENT PROBLEM OF GOVERNMENTAL AUTHORITY TO COMPEL BEHAVIOR
OFFENSIVE TO RELIGIOUS PRINCIPLES.  IN HAMILTON V. REGENTS OF THE
UNIVERSITY OF CALIFORNIA, 293 U.S. 245, THE QUESTION WAS THAT OF THE
POWER OF A STATE TP COMPEL STUDENTS AT THE STATE UNIVERSITY TO
PARTICIPATE IN MILITARY TRAINING INSTRUCTION AGAINST THEIR RELIGIOUS
CONVICTIONS.  THE VALIDITY OF THE STATUTE WAS SUSTAINED AGAINST CLAIMS
BASED UPON THE FIRST AMENDMENT.  BUT THE DECISION RESTED ON A VERY
NARROW PRINCIPLE: SINCE THERE WAS NEITHER A CONSTITUTIONAL RIGHT NOR A
LEGAL OBLIGATION TO ATTEND THE STATE UNIVERSITY, THE OBLIGATION TO
PARTICIPATE IN MILITARY TRAINING COURSES, REFLECTING LEGITIMATE STATE
INTEREST, MIGHT PROPERLY BE IMPOSED UPON THOSE WHO CHOSE TO ATTEND. 
ALTHOUGH THE RIGHTS PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS
WERE PRESUMED TO INCLUDE "THE RIGHT TO ENTERTAIN THE BELIEFS, TO ADHERE
TO THE PRINCIPLES AND TO TEACH THE DOCTRINES ON WHICH THESE STUDENTS
BASE THEIR OBJECTIONS TO THE ORDER PRESCRIBING MILITARY TRAINING,"
THOSE AMENDMENTS WERE CONSTRUED NOT TO FREE SUCH STUDENTS FROM THE
MILITARY TRAINING OBLIGATIONS IF THEY CHOSE TO ATTEND THE UNIVERSITY. 
JUSTICES BRANDEIS, CARDOZO AND STONE, CONCURRING SEPARATELY, AGREED
THAT THE REQUIREMENT INFRINGED NO CONSTITUTIONALLY PROTECTED
LIBERTIES.  THEY ADDED, HOWEVER, THAT THE CASE PRESENTED NO QUESTION
UNDER THE ESTABLISHMENT CLAUSE.  THE MILITARY INSTRUCTION PROGRAM WAS
NOT AN ESTABLISHMENT SINCE IT IN NO WAY INVOLVED "INSTRUCTION IN THE
PRACTICE OR TENETS OF A RELIGION."  293 U.S., AT 266.  SINCE THE ONLY
QUESTION WAS ONE OF FREE EXERCISE, THEY CONCLUDED, LIKE THE MAJORITY,
THAT THE STRONG STATE INTEREST IN TRAINING A CITIZEN MILITIA JUSTIFIED
THE RESTRAINTS IMPOSED, AT LEAST SO LONG AS ATTENDANCE AT THE
UNIVERSITY WAS VOLUNTARY.  (FN15) 

HAMILTON HAS NOT BEEN OVERRULED, ALTHOUGH UNITED STATES V. SCHWIMMER,
279 U.S. 644, AND UNITED STATES V. MACINTOSH, 283 U.S. 605, UPON WHICH
THE COURT IN HAMILTON RELIED, HAVE SINCE BEEN OVERRULED BY GIROUARD V.
UNITED STATES, 328 U.S. 61.  BUT IF HAMILTON RETAINS ANY VITALITY WITH
RESPECT TO HIGHER EDUCATION, WE RECOGNIZED ITS INAPPLICABILITY TO
COGNATE QUESTIONS IN THE PUBLIC PRIMARY AND SECONDARY SCHOOLS WHEN WE
HELD IN WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE, SUPRA, THAT A
STATE HAD NO POWER TO EXPEL FROM PUBLIC SCHOOLS STUDENTS WHO REFUSED ON
RELIGIOUS GROUNDS TO COMPLY WITH A DAILY FLAG SALUTE REQUIREMENT.  OF
COURSE, SUCH A REQUIREMENT WAS NO MORE A LAW "RESPECTING AN
ESTABLISHMENT OF RELIGION" THAN THE CALIFORNIA LAW COMPELLING THE
COLLEGE STUDENTS TO TAKE MILITARY TRAINING.  THE BARNETTE PLAINTIFFS,
MOREOVER, DID NOT ASK THAT THE WHOLE EXERCISE BE ENJOINED, BUT ONLY
THAT AN EXCUSE OR EXEMPTION BE PROVIDED FOR THOSE STUDENTS WHOSE
RELIGIOUS BELIEFS FORBADE THEM TO PARTICIPATE IN THE CEREMONY.  THE KEY
TO THE HOLDING THAT SUCH A REQUIREMENT ABRIDGED RIGHTS OF FREE EXERCISE
LAY IN THE FACT THAT ATTENDANCE AT SCHOOL WAS NOT VOLUNTARY BUT
COMPULSORY.  THE COURT SAID: 

"THIS ISSUE IS NOT PREJUDICED BY THE COURT'S PREVIOUS HOLDING THAT
WHERE A STATE, WITHOUT COMPELLING ATTENDANCE, EXTENDS COLLEGE
FACILITIES TO PUPILS WHO VOLUNTARILY ENROLL, IT MAY PRESCRIBE MILITARY
TRAINING AS PART OF THE COURSE WITHOUT OFFENSE TO THE CONSTITUTION  ...
.  HAMILTON V. REGENTS, 293 U.S. 245.  IN THE PRESENT CASE ATTENDANCE
IS NOT OPTIONAL."  319 U.S., AT 631-632. 

THE BARNETTE DECISION MADE ANOTHER SIGNIFICANT POINT.  THE COURT HELD
THAT THE STATE MUST MAKE PARTICIPATION IN THE EXERCISE VOLUNTARY FOR
ALL STUDENTS AND NOT ALONE FOR THOSE WHO FOUND PARTICIPATION OBNOXIOUS
ON RELIGIOUS GROUNDS.  IN SHORT, THERE WAS SIMPLY NO NEED TO "INQUIRE
WHETHER NON-CONFORMIST BELIEFS WILL EXEMPT FROM THE DUTY TO SALUTE"
BECAUSE THE COURT FOUND NO STATE "POWER TO MAKE THE SALUTE A LEGAL
DUTY."  319 U.S., AT 635. 

THE DISTINCTIONS BETWEEN HAMILTON AND BARNETTE ARE, I THINK, CRUCIAL
TO THE RESOLUTION OF THE CASES BEFORE US.  THE DIFFERENT RESULTS OF
THOSE CASES ARE ATTRIBUTABLE ONLY IN PART TO A DIFFERENCE IN THE
STRENGTH OF THE PARTICULAR STATE INTERESTS WHICH THE RESPECTIVE
STATUTES WERE DESIGNED TO SERVE.  FAR MORE SIGNIFICANT IS THE FACT THAT
HAMILTON DEALT WITH THE VOLUNTARY ATTENDANCE AT COLLEGE OF YOUNG
ADULTS, WHILE BARNETTE INVOLVED THE COMPELLED ATTENDANCE OF YOUNG
CHILDREN AT ELEMENTARY AND SECONDARY SCHOOLS.  (FN16)  THIS DISTINCTION
WARRANTS A DIFFERENCE IN CONSTITUTIONAL RESULTS.  AND IT IS WITH THE
INVOLUNTARY ATTENDANCE OF YOUNG SCHOOL CHILDREN THAT WE ARE EXCLUSIVELY
CONCERNED IN THE CASES NOW BEFORE THE COURT. 

                                 III. 

NO ONE QUESTIONS THAT THE FRAMERS OF THE FIRST AMENDMENT INTENDED TO
RESTRICT EXCLUSIVELY THE POWERS OF THE FEDERAL GOVERNMENT.  (FN17)
WHATEVER LIMITATIONS THAT AMENDMENT NOW IMPOSES UPON THE STATES DERIVE
FROM THE FOURTEENTH AMENDMENT.  THE PROCESS OF ABSORPTION OF THE
RELIGIOUS GUARANTEES OF THE FIRST AMENDMENT AS PROTECTIONS AGAINST THE
STATES UNDER THE FOURTEENTH AMENDMENT BEGAN WITH THE FREE EXERCISE
CLAUSE.  IN 1923 THE COURT HELD THAT THE PROTECTIONS OF THE FOURTEENTH
INCLUDED AT LEAST A PERSON'S FREEDOM "TO WORSHIP GOD ACCORDING TO THE
DICTATES OF HIS OWN CONSCIENCE  ...  ."  (FN18)  MEYER V. NEBRASKA, 262
U.S. 390, 399.  SEE ALSO HAMILTON V. REGENTS, SUPRA, AT 262.  CANTWELL
V. CONNECTICUT, 310 U.S. 296, COMPLETED IN 1940 THE PROCESS OF
ABSORPTION OF THE FREE EXERCISE CLAUSE AND RECOGNIZED ITS DUAL ASPECT:
THE COURT AFFIRMED FREEDOM OF BELIEF AS AN ABSOLUTE LIBERTY, BUT
RECOGNIZED THAT CONDUCT, WHILE IT MAY ALSO BE COMPREHENDED BY THE FREE
EXERCISE CLAUSE, "REMAINS SUBJECT TO REGULATION FOR THE PROTECTION OF
SOCIETY."  310 U.S., AT 303-304.  THIS WAS A DISTINCTION ALREADY DRAWN
BY REYNOLDS V. UNITED STATES, SUPRA.  FROM THE BEGINNING THIS COURT HAS
RECOGNIZED THAT WHILE GOVERNMENT MAY REGULATE THE BEHAVIORAL
MANIFESTATIONS OF RELIGIOUS BELIEFS, IT MAY NOT INTERFERE AT ALL WITH
THE BELIEFS THEMSELVES. 

THE ABSORPTION OF THE ESTABLISHMENT CLAUSE HAS, HOWEVER, COME LATER
AND BY A ROUTE LESS EASILY CHARTED.  IT HAS BEEN SUGGESTED, WITH SOME
SUPPORT IN HISTORY, THAT ABSORPTION OF THE FIRST AMENDMENT'S BAN
AGAINST CONGRESSIONAL LEGISLATION "RESPECTING AN ESTABLISHMENT OF
RELIGION" IS CONCEPTUALLY IMPOSSIBLE BECAUSE THE FRAMERS MEANT THE
ESTABLISHMENT CLAUSE ALSO TO FORECLOSE ANY ATTEMPT BY CONGRESS TO
DISESTABLISH THE EXISTING OFFICIAL STATE CHURCHES.  (FN19)  WHETHER OR
NOT SUCH WAS THE UNDERSTANDING OF THE FRAMERS AND WHETHER SUCH A
PURPOSE WOULD HAVE INHIBITED THE ABSORPTION OF THE ESTABLISHMENT CLAUSE
AT THE THRESHOLD OF THE NINETEENTH CENTURY ARE QUESTIONS NOT
DISPOSITIVE OF OUR PRESENT INQUIRY.  FOR IT IS CLEAR ON THE RECORD OF
HISTORY THAT THE LAST OF THE FORMAL STATE ESTABLISHMENTS WAS DISSOLVED
MORE THAN THREE DECADES BEFORE THE FOURTEENTH AMENDMENT WAS RATIFIED,
AND THUS THE PROBLEM OF PROTECTING OFFICIAL STATE CHURCHES FROM FEDERAL
ENCROACHMENTS COULD HARDLY HAVE BEEN ANY CONCERN OF THOSE WHO FRAMED
THE POST-CIVIL WAR AMENDMENTS.  (FN20)  ANY SUCH OBJECTIVE OF THE FIRST
AMENDMENT, HAVING BECOME HISTORICAL ANACHRONISM BY 1868, CANNOT BE
THOUGHT TO HAVE DETERRED THE ABSORPTION OF THE ESTABLISHMENT CLAUSE TO
ANY GREATER DEGREE THAN IT WOULD, FOR EXAMPLE, HAVE DETERRED THE
ABSORPTION OF THE FREE EXERCISE CLAUSE.  THAT NO ORGAN OF THE FEDERAL
GOVERNMENT POSSESSED IN 1791 ANY POWER TO RESTRAIN THE INTERFERENCE OF
THE STATES IN RELIGIOUS MATTERS IS INDISPUTABLE.  SEE PERMOLI V. NEW
ORLEANS, 3 HOW.  589.  IT IS EQUALLY PLAIN, ON THE OTHER HAND, THAT THE
FOURTEENTH AMENDMENT CREATED A PANOPLY OF NEW FEDERAL RIGHTS FOR THE
PROTECTION OF CITIZENS OF THE VARIOUS STATES.  AND AMONG THOSE RIGHTS
WAS FREEDOM FROM SUCH STATE GOVERNMENTAL INVOLVEMENT IN THE AFFAIRS OF
RELIGION AS THE ESTABLISHMENT CLAUSE HAD ORIGINALLY FORECLOSED ON THE
PART OF CONGRESS. 

IT HAS ALSO BEEN SUGGESTED THAT THE "LIBERTY" GUARANTEED BY THE
FOURTEENTH AMENDMENT LOGICALLY CANNOT ABSORB THE ESTABLISHMENT CLAUSE
BECAUSE THAT CLAUSE IS NOT ONE OF THE PROVISIONS OF THE BILL OF RIGHTS
WHICH IN TERMS PROTECTS A "FREEDOM" OF THE INDIVIDUAL.  SEE CORWIN, A
CONSTITUTION OF POWERS IN A SECULAR STATE (1951), 113-116.  THE FALLACY
IN THIS CONTENTION, I THINK, IS THAT IT UNDERESTIMATES THE ROLE OF THE
ESTABLISHMENT CLAUSE AS A CO-GUARANTOR, WITH THE FREE EXERCISE CLAUSE,
OF RELIGIOUS LIBERTY.  THE FRAMERS DID NOT ENTRUST THE LIBERTY OF
RELIGIOUS BELIEFS TO EITHER CLAUSE ALONE.  THE FREE EXERCISE CLAUSE
"WAS NOT TO BE THE FULL EXTENT OF THE AMENDMENT'S GUARANTEE OF FREEDOM
FROM GOVERNMENTAL INTRUSION IN MATTERS OF FAITH."  MCGOWAN V. MARYLAND,
SUPRA, AT 464 (OPINION OF FRANKFURTER, J.). 

FINALLY, IT HAS BEEN CONTENDED THAT ABSORPTION OF THE ESTABLISHMENT
CLAUSE IS PRECLUDED BY THE ABSENCE OF ANY INTENTION ON THE PART OF THE
FRAMERS OF THE FOURTEENTH AMENDMENT TO CIRCUMSCRIBE THE RESIDUAL POWERS
OF THE STATES TO AID RELIGIOUS ACTIVITIES AND INSTITUTIONS IN WAYS
WHICH FELL SHORT OF FORMAL ESTABLISHMENTS.  (FN21)  THAT ARGUMENT
RELIES IN PART UPON THE EXPRESS TERMS OF THE ABORTIVE BLAINE AMENDMENT
PROPOSED SEVERAL YEARS AFTER THE ADOPTION OF THE FOURTEENTH AMENDMENT
WHICH WOULD HAVE ADDED TO THE FIRST AMENDMENT A PROVISION THAT "NO
STATE SHALL MAKE ANY LAW RESPECTING AN ESTABLISHMENT OF RELIGION  ...
."  SUCH A RESTRICTION WOULD HAVE BEEN SUPERFLUOUS, IT IS SAID, IF THE
FOURTEENTH AMENDMENT HAD ALREADY MADE THE ESTABLISHMENT CLAUSE BINDING
UPON THE STATES. 

THE ARGUMENT PROVES TOO MUCH, FOR THE FOURTEENTH AMENDMENT'S
PROTECTION OF THE FREE EXERCISE OF RELIGION CAN HARDLY BE QUESTIONED;
YET THE BLAINE AMENDMENT WOULD ALSO HAVE ADDED AN EXPLICIT PROTECTION
AGAINST STATE LAWS ABRIDGING THAT LIBERTY.  (FN22)  EVEN IF WE ASSUME
THAT THE DRAFTSMEN OF THE FOURTEENTH AMENDMENT SAW NO IMMEDIATE
CONNECTION BETWEEN ITS PROTECTIONS AGAINST STATE ACTION INFRINGING
PERSONAL LIBERTY AND THE GUARANTEES OF THE FIRST AMENDMENT, IT IS
CERTAINLY TOO LATE IN THE DAY TO SUGGEST THAT THEIR ASSUMED INATTENTION
TO THE QUESTION DILUTES THE FORCE OF THESE CONSTITUTIONAL GUARANTEES IN
THEIR APPLICATION TO THE STATES.  (FN23)  IT IS ENOUGH TO CONCLUDE THAT
THE RELIGIOUS LIBERTY EMBODIED IN THE FOURTEENTH AMENDMENT WOULD NOT BE
VIABLE IF THE CONSTITUTION WERE INTERPRETED TO FORBID ONLY
ESTABLISHMENTS ORDAINED BY CONGRESS.  (FN24) 

THE ISSUE OF WHAT PARTICULAR ACTIVITIES THE ESTABLISHMENT CLAUSE
FORBIDS THE STATES TO UNDERTAKE IS OUR MORE IMMEDIATE CONCERN.  IN
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 15-16, A CAREFUL STUDY OF
THE RELEVANT HISTORY LED THE COURT TO THE VIEW, CONSISTENTLY RECOGNIZED
IN DECISIONS SINCE EVERSON, THAT THE ESTABLISHMENT CLAUSE EMBODIED THE
FRAMERS' CONCLUSION THAT GOVERNMENT AND RELIGION HAVE DISCRETE
INTERESTS WHICH ARE MUTUALLY BEST SERVED WHEN EACH AVOIDS TOO CLOSE A
PROXIMITY TO THE OTHER.  IT IS NOT ONLY THE NONBELIEVER WHO FEARS THE
INJECTION OF SECTARIAN DOCTRINES AND CONTROVERSIES INTO THE CIVIL
POLITY, BUT IN AS HIGH DEGREE IT IS THE DEVOUT BELIEVER WHO FEARS THE
SECULARIZATION OF A CREED WHICH BECOMES TOO DEEPLY INVOLVED WITH AND
DEPENDENT UPON THE GOVERNMENT.  (FN25)  IT HAS RIGHTLY BEEN SAID OF THE
HISTORY OF THE ESTABLISHMENT CLAUSE THAT "OUR TRADITION OF CIVIL
LIBERTY RESTS NOT ONLY ON THE SECULARISM OF A THOMAS JEFFERSON BUT ALSO
ON THE FERVENT SECTARIANISM  ...  OF A ROGER WILLIAMS."  FREUND, THE
SUPREME COURT OF THE UNITED STATES (1961), 84. 

OUR DECISIONS ON QUESTIONS OF RELIGIOUS EDUCATION OR EXERCISES IN THE
PUBLIC SCHOOLS HAVE CONSISTENTLY REFLECTED THIS DUAL ASPECT OF THE
ESTABLISHMENT CLAUSE.  ENGEL V. VITALE UNMISTAKABLY HAS ITS ROOTS IN
THREE EARLIER CASES WHICH, ON COGNATE ISSUES, SHAPED THE CONTOURS OF
THE ESTABLISHMENT CLAUSE.  FIRST, IN EVERSON THE COURT HELD THAT
REIMBURSEMENT BY THE TOWN OF PARENTS FOR THE COST OF TRANSPORTING THEIR
CHILDREN BY PUBLIC CARRIER TO PAROCHIAL (AS WELL AS PUBLIC AND PRIVATE
NONSECTARIAN) SCHOOLS DID NOT OFFEND THE ESTABLISHMENT CLAUSE.  SUCH
REIMBURSEMENT, BY EASING THE FINANCIAL BURDEN UPON CATHOLIC PARENTS,
MAY INDIRECTLY HAVE FOSTERED THE OPERATION OF THE CATHOLIC SCHOOLS, AND
MAY THEREBY INDIRECTLY HAVE FACILITATED THE TEACHING OF CATHOLIC
PRINCIPLES, THUS SERVING ULTIMATELY A RELIGIOUS GOAL.  BUT THIS FORM OF
GOVERNMENTAL ASSISTANCE WAS DIFFICULT TO DISTINGUISH FROM MYRIAD OTHER
INCIDENTAL IF NOT INSIGNIFICANT GOVERNMENT BENEFITS ENJOYED BY
RELIGIOUS INSTITUTIONS - FIRE AND POLICE PROTECTION, TAX EXEMPTIONS,
AND THE PAVEMENT OF STREETS AND SIDEWALKS, FOR EXAMPLE.  "THE STATE
CONTRIBUTES NO MONEY TO THE SCHOOLS.  IT DOES NOT SUPPORT THEM.  ITS
LEGISLATION, AS APPLIED, DOES NO MORE THAN PROVIDE A GENERAL PROGRAM TO
HELP PARENTS GET THEIR CHILDREN, REGARDLESS OF THEIR RELIGION, SAFELY
AND EXPEDITIOUSLY TO AND FROM ACCREDITED SCHOOLS."  330 U.S., AT 18. 
YET EVEN THIS FORM OF ASSISTANCE WAS THOUGHT BY FOUR JUSTICES OF THE
EVERSON COURT TO BE BARRED BY THE ESTABLISHMENT CLAUSE BECAUSE TOO
PERILOUSLY CLOSE TO THAT PUBLIC SUPPORT OF RELIGION FORBIDDEN BY THE
FIRST AMENDMENT. 

THE OTHER TWO CASES, ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION,
333 U.S. 203, AND ZORACH V. CLAUSON, 343 U.S. 306, CAN BEST BE
CONSIDERED TOGETHER.  BOTH INVOLVED PROGRAMS OF RELEASED TIME FOR
RELIGIOUS INSTRUCTION OF PUBLIC SCHOOL STUDENTS.  I REJECT THE
SUGGESTION THAT ZORACH OVERRULED MCCOLLUM IN SILENCE.  (FN26)  THE
DISTINCTION WHICH THE COURT DREW IN ZORACH BETWEEN THE TWO CASES IS, IN
MY VIEW, FAITHFUL TO THE FUNCTION OF THE ESTABLISHMENT CLAUSE. 

I SHOULD FIRST NOTE, HOWEVER, THAT MCCOLLUM AND ZORACH DO NOT SEEM TO
ME DISTINGUISHABLE IN TERMS OF THE FREE EXERCISE CLAIMS ADVANCED IN
BOTH CASES.  (FN27)  THE NONPARTICIPANT IN THE MCCOLLUM PROGRAM WAS
GIVEN SECULAR INSTRUCTION IN A SEPARATE ROOM DURING THE TIMES HIS
CLASSMATES HAD RELIGIOUS LESSONS; THE NONPARTICIPANT IN ANY ZORACH
PROGRAM ALSO RECEIVED SECULAR INSTRUCTION, WHILE HIS CLASSMATES
REPAIRED TO A PLACE OUTSIDE THE SCHOOL FOR RELIGIOUS INSTRUCTION. 

THE CRUCIAL DIFFERENCE, I THINK, WAS THAT THE MCCOLLUM PROGRAM
OFFENDED THE ESTABLISHMENT CLAUSE WHILE THE ZORACH PROGRAM DID NOT. 
THIS WAS NOT, IN MY VIEW, BECAUSE OF THE DIFFERENCE IN PUBLIC
EXPENDITURES INVOLVED.  TRUE, THE MCCOLLUM PROGRAM INVOLVED THE REGULAR
USE OF SCHOOL FACILITIES, CLASSROOMS, HEAT AND LIGHT AND TIME FROM THE
REGULAR SCHOOL DAY - EVEN THOUGH THE ACTUAL INCREMENTAL COST MAY HAVE
BEEN NEGLIGIBLE.  ALL RELIGIOUS INSTRUCTION UNDER THE ZORACH PROGRAM,
BY CONTRAST, WAS CARRIED ON ENTIRELY OFF THE SCHOOL PREMISES, AND THE
TEACHER'S PART WAS SIMPLY TO FACILITATE THE CHILDREN'S RELEASE TO THE
CHURCHES.  THE DEEPER DIFFERENCE WAS THAT THE MCCOLLUM PROGRAM PLACED
THE RELIGIOUS INSTRUCTOR IN THE PUBLIC SCHOOL CLASSROOM IN PRECISELY
THE POSITION OF AUTHORITY HELD BY THE REGULAR TEACHERS OF SECULAR
SUBJECTS, WHILE THE ZORACH PROGRAM DID NOT.  (FN28)  THE MCCOLLUM
PROGRAM, IN LENDING TO THE SUPPORT OF SECTARIAN INSTRUCTION ALL THE
AUTHORITY OF THE GOVERNMENTALLY OPERATED PUBLIC SCHOOL SYSTEM, BROUGHT
GOVERNMENT AND RELIGION INTO THAT PROXIMITY WHICH THE ESTABLISHMENT
CLAUSE FORBIDS.  TO BE SURE, A RELIGIOUS TEACHER PRESUMABLY COMMANDS
SUBSTANTIAL RESPECT AND MERITS ATTENTION IN HIS OWN RIGHT.  BUT THE
CONSTITUTION DOES NOT PERMIT THAT PRESTIGE AND CAPACITY FOR INFLUENCE
TO BE AUGMENTED BY INVESTITURE OF ALL THE SYMBOLS OF AUTHORITY AT THE
COMMAND OF THE LAY TEACHER FOR THE ENHANCEMENT OF SECULAR INSTRUCTION. 

MORE RECENT DECISIONS HAVE FURTHER ETCHED THE CONTOURS OF
ESTABLISHMENT.  IN THE SUNDAY LAW CASES, WE FOUND IN STATE LAWS
COMPELLING A UNIFORM DAY OF REST FROM WORLDLY LABOR NO VIOLATION OF THE
ESTABLISHMENT CLAUSE (MCGOWAN V. MARYLAND, 366 U.S. 420).  THE BASIC
GROUND OF OUR DECISION WAS THAT, GRANTED THE SUNDAY LAWS WERE FIRST
ENACTED FOR RELIGIOUS ENDS, THEY WERE CONTINUED IN FORCE FOR REASONS
WHOLLY SECULAR, NAMELY, TO PROVIDE A UNIVERSAL DAY OF REST AND ENSURE
THE HEALTH AND TRANQUILLITY OF THE COMMUNITY.  IN OTHER WORDS,
GOVERNMENT MAY ORIGINALLY HAVE DECREED A SUNDAY DAY OF REST FOR THE
IMPERMISSIBLE PURPOSE OF SUPPORTING RELIGION BUT ABANDONED THAT PURPOSE
AND RETAINED THE LAWS FOR THE PERMISSIBLE PURPOSE OF FURTHERING
OVERWHELMINGLY SECULAR ENDS. 

SUCH WAS THE EVOLUTION OF THE CONTOURS OF THE ESTABLISHMENT CLAUSE
BEFORE ENGEL V. VITALE.  THERE, A YEAR AGO, WE HELD THAT THE DAILY
RECITAL OF THE STATE-COMPOSED REGENTS' PRAYER CONSTITUTED AN
ESTABLISHMENT OF RELIGION BECAUSE, ALTHOUGH THE PRAYER ITSELF REVEALED
NO SECTARIAN CONTENT OR PURPOSE, ITS NATURE AND MEANING WERE QUITE
CLEARLY RELIGIOUS.  NEW YORK, IN AUTHORIZING ITS RECITATION, HAD NOT
MAINTAINED THAT DISTANCE BETWEEN THE PUBLIC AND THE RELIGIOUS SECTORS
COMMANDED BY THE ESTABLISHMENT CLAUSE WHEN IT PLACED THE "POWER,
PRESTIGE AND FINANCIAL SUPPORT OF GOVERNMENT" BEHIND THE PRAYER.  IN
ENGEL, AS IN MCCOLLUM, IT DID NOT MATTER THAT THE AMOUNT OF TIME AND
EXPENSE ALLOCATED TO THE DAILY RECITATION WAS SMALL SO LONG AS THE
EXERCISE ITSELF WAS MANIFESTLY RELIGIOUS.   NOR DID IT MATTER THAT FEW
CHILDREN HAD COMPLAINED OF THE PRACTICE, FOR THE MEASURE OF THE
SERIOUSNESS OF A BREACH OF THE ESTABLISHMENT CLAUSE HAS NEVER BEEN
THOUGHT TO BE THE NUMBER OF PEOPLE WHO COMPLAIN OF IT. 

WE ALSO HELD TWO TERMS AGO IN TORCASO V. WATKINS, SUPRA, THAT A STATE
MAY NOT CONSTITUTIONALLY REQUIRE AN APPLICANT FOR THE OFFICE OF NOTARY
PUBLIC TO SWEAR OR AFFIRM THAT HE BELIEVES IN GOD.  THE PROBLEM OF THAT
CASE WAS STRIKINGLY SIMILAR TO THE ISSUE PRESENTED 18 YEARS BEFORE IN
THE FLAG SALUTE CASE, WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE,
SUPRA.  IN NEITHER CASE WAS THERE ANY CLAIM OF ESTABLISHMENT OF
RELIGION, BUT ONLY OF INFRINGEMENT OF THE INDIVIDUAL'S RELIGIOUS
LIBERTY - IN THE ONE CASE, THAT OF THE NONBELIEVER WHO COULD NOT ATTEST
TO A BELIEF IN GOD; IN THE OTHER, THAT OF THE CHILD WHOSE CREED FORBADE
HIM TO SALUTE THE FLAG.  BUT TORCASO ADDED A NEW ELEMENT NOT PRESENT IN
BARNETTE.  THE MARYLAND TEST OATH INVOLVED AN ATTEMPT TO EMPLOY
ESSENTIALLY RELIGIOUS (ALBEIT NON-SECTARIAN) MEANS TO ACHIEVE A SECULAR
GOAL TO WHICH THE MEANS BORE NO REASONABLE RELATIONSHIP.  NO ONE
DOUBTED THE STATE'S INTEREST IN THE INTEGRITY OF ITS NOTARIES PUBLIC,
BUT THAT INTEREST DID NOT WARRANT THE SCREENING OF APPLICANTS BY MEANS
OF A RELIGIOUS TEST.  THE SUNDAY LAW CASES WERE DIFFERENT IN THAT
RESPECT.  EVEN IF SUNDAY LAWS RETAIN CERTAIN RELIGIOUS VESTIGES, THEY
ARE ENFORCED TODAY FOR ESSENTIALLY SECULAR OBJECTIVES WHICH CANNOT BE
EFFECTIVELY ACHIEVED IN MODERN SOCIETY EXCEPT BY DESIGNATING SUNDAY AS
THE UNIVERSAL DAY OF REST.  THE COURT'S OPINIONS CITED VERY SUBSTANTIAL
PROBLEMS IN SELECTING OR ENFORCING AN ALTERNATIVE DAY OF REST.  BUT THE
TEACHING OF BOTH TORCASO AND THE SUNDAY LAW CASES IS THAT GOVERNMENT
MAY NOT EMPLOY RELIGIOUS MEANS TO SERVE SECULAR INTERESTS, HOWEVER
LEGITIMATE THEY MAY BE, AT LEAST WITHOUT THE CLEAREST DEMONSTRATION
THAT NONRELIGIOUS MEANS WILL NOT SUFFICE.  (FN29)

                       IV. 

I TURN NOW TO THE CASES BEFORE US.  (FN30)  THE RELIGIOUS NATURE OF
THE EXERCISES HERE CHALLENGED SEEMS PLAIN.  UNLESS ENGEL V. VITALE IS
TO BE OVERRULED, OR WE ARE TO ENGAGE IN WHOLLY DISINGENUOUS
DISTINCTION, WE CANNOT SUSTAIN THESE PRACTICES.  DAILY RECITAL OF THE
LORD'S PRAYER AND THE READING OF PASSAGES OF SCRIPTURE ARE QUITE AS
CLEARLY BREACHES OF THE COMMAND OF THE ESTABLISHMENT CLAUSE AS WAS THE
DAILY USE OF THE RATHER BLAND REGENTS' PRAYER IN THE NEW YORK PUBLIC
SCHOOLS.  INDEED, I WOULD SUPPOSE THAT, IF ANYTHING, THE LORD'S PRAYER
AND THE HOLY BIBLE ARE MORE CLEARLY SECTARIAN, AND THE PRESENT
VIOLATIONS OF THE FIRST AMENDMENT CONSEQUENTLY MORE SERIOUS.  BUT THE
RELIGIOUS EXERCISES CHALLENGED IN THESE CASES HAVE A LONG HISTORY.  AND
ALMOST FROM THE BEGINNING, BIBLE READING AND DAILY PRAYER IN THE
SCHOOLS HAVE BEEN THE SUBJECT OF DEBATE, CRITICISM BY EDUCATORS AND
OTHER PUBLIC OFFICIALS, AND PROSCRIPTION BY COURTS AND LEGISLATIVE
COUNCILS.  AT THE OUTSET, THEN, WE MUST CAREFULLY CANVASS BOTH ASPECTS
OF THIS HISTORY. 

THE USE OF PRAYERS AND BIBLE READINGS AT THE OPENING OF THE SCHOOL
DAY LONG ANTEDATES THE FOUNDING OF OUR REPUBLIC.  THE RULES OF THE NEW
HAVEN HOPKINS GRAMMAR SCHOOL REQUIRED IN 1684 "THAT THE SCHOLARS BEING
CALLED TOGETHER, THE MR. SHALL EVERY MORNING BEGIN HIS WORK WITH A
SHORT PRAYER FOR A BLESSING ON HIS LABOURES AND THEIR LEARNING  ...
."  (FN31)  MORE RIGOROUS WAS THE PROVISION IN A 1682 CONTRACT WITH A
DUTCH SCHOOLMASTER IN FLATBUSH, NEW YORK: 

"WHEN THE SCHOOL BEGINS, ONE OF THE CHILDREN SHALL READ THE MORNING
PRAYER, AS IT STANDS IN THE CATECHISM, AND CLOSE WITH THE PRAYER BEFORE
DINNER; IN THE AFTERNOON IT SHALL BEGIN WITH THE PRAYER AFTER DINNER,
AND END WITH THE EVENING PRAYER.  THE EVENING SCHOOL SHALL BEGIN WITH
THE LORD'S PRAYER, AND CLOSE BY SINGING A PSALM."  (FN32)    AFTER THE
REVOLUTION, THE NEW STATES UNIFORMLY CONTINUED THESE LONG-ESTABLISHED
PRACTICES IN THE PRIVATE AND THE FEW PUBLIC GRAMMAR SCHOOLS.  THE
SCHOOL COMMITTEE OF BOSTON IN 1789, FOR EXAMPLE, REQUIRED THE CITY'S
SEVERAL SCHOOLMASTERS "DAILY TO COMMENCE THE DUTIES OF THEIR OFFICE BY
PRAYER AND READING A PORTION OF THE SACRED SCRIPTURES  ...  ."  (FN33)
THAT REQUIREMENT WAS MIRRORED THROUGHOUT THE ORIGINAL STATES, AND
EXEMPLIFIED THE UNIVERSAL PRACTICE WELL INTO THE NINETEENTH CENTURY. 
AS THE FREE PUBLIC SCHOOLS GRADUALLY SUPPLANTED THE PRIVATE ACADEMIES
AND SECTARIAN SCHOOLS BETWEEN 1800 AND 1850, MORNING DEVOTIONAL
EXERCISES WERE RETAINED WITH FEW ALTERATIONS.  INDEED, PUBLIC PRESSURES
UPON SCHOOL ADMINISTRATORS IN MANY PARTS OF THE COUNTRY WOULD HARDLY
HAVE CONDONED ABANDONMENT OF PRACTICES TO WHICH A CENTURY OR MORE OF
PRIVATE RELIGIOUS EDUCATION HAD ACCUSTOMED THE AMERICAN PEOPLE.  (FN34)
THE CONTROVERSY CENTERED, IN FACT, PRINCIPALLY ABOUT THE ELIMINATION
OF PLAINLY SECTARIAN PRACTICES AND TEXTBOOKS, AND LED TO THE EVENTUAL
SUBSTITUTION OF NONSECTARIAN, THOUGH STILL RELIGIOUS, EXERCISES AND
MATERIALS.  (FN35) 

STATUTORY PROVISION FOR DAILY RELIGIOUS EXERCISES IS, HOWEVER, OF
QUITE RECENT ORIGIN.  AT THE TURN OF THIS CENTURY, THERE WAS BUT ONE
STATE - MASSACHUSETTS - WHICH HAD A LAW MAKING MORNING PRAYER OR BIBLE
READING OBLIGATORY.  STATUTES ELSEWHERE EITHER PERMITTED SUCH PRACTICES
OR SIMPLY LEFT THE QUESTION TO LOCAL OPTION.  IT WAS NOT UNTIL AFTER
1910 THAT 11 MORE STATES, WITHIN A FEW YEARS, JOINED MASSACHUSETTS IN
MAKING ONE OR BOTH EXERCISES COMPULSORY.  (FN36)  THE PENNSYLVANIA LAW
WITH WHICH WE ARE CONCERNED IN THE SCHEMPP CASE, FOR EXAMPLE, TOOK
EFFECT IN 1913; AND EVEN THE RULE OF THE BALTIMORE SCHOOL BOARD
INVOLVED IN THE MURRAY CASE DATES ONLY FROM 1905.  IN NO STATE HAS
THERE EVER BEEN A CONSTITUTIONAL OR STATUTORY PROHIBITION AGAINST THE
RECITAL OF PRAYERS OR THE READING OF SCRIPTURE, ALTHOUGH A NUMBER OF
STATES HAVE OUTLAWED THESE PRACTICES BY JUDICIAL DECISION OR
ADMINISTRATIVE ORDER.  WHAT IS NOTEWORTHY ABOUT THE PANOPLY OF STATE
AND LOCAL REGULATIONS FROM WHICH THESE CASES EMERGE IS THE RELATIVE
RECENCY OF THE STATUTORY CODIFICATION OF PRACTICES WHICH HAVE ANCIENT
ROOTS, AND THE RATHER SMALL NUMBER OF STATES WHICH HAVE EVER PRESCRIBED
COMPULSORY RELIGIOUS EXERCISES IN THE PUBLIC SCHOOLS. 

THE PURPOSES UNDERLYING THE ADOPTION AND PERPETUATION OF THESE
PRACTICES ARE SOMEWHAT COMPLEX.  IT IS BEYOND QUESTION THAT THE
RELIGIOUS BENEFITS AND VALUES REALIZED FROM DAILY PRAYER AND BIBLE
READING HAVE USUALLY BEEN CONSIDERED PARAMOUNT, AND SUFFICIENT TO
JUSTIFY THE CONTINUATION OF SUCH PRACTICES.  TO HORACE MANN, EMBROILED
IN AN INTENSE CONTROVERSY OVER THE ROLE OF SECTARIAN INSTRUCTION AND
TEXTBOOKS IN THE BOSTON PUBLIC SCHOOLS, THERE WAS LITTLE QUESTION THAT
THE REGULAR USE OF THE BIBLE - WHICH HE THOUGHT ESSENTIALLY
NONSECTARIAN - WOULD BEAR FRUIT IN THE SPIRITUAL ENLIGHTENMENT OF HIS
PUPILS.  (FN37)  A CONTEMPORARY OF MANN'S, THE COMMISSIONER OF
EDUCATION OF A NEIGHBORING STATE, EXPRESSED A VIEW WHICH MANY
ENLIGHTENED EDUCATORS OF THAT DAY SHARED: 

"AS A TEXTBOOK OF MORALS THE BIBLE IS PRE-EMINENT, AND SHOULD HAVE A
PROMINENT PLACE IN OUR SCHOOLS, EITHER AS A READING BOOK OR AS A SOURCE
OF APPEAL AND INSTRUCTION.  SECTARIANISM, INDEED, SHOULD NOT BE
COUNTENANCED IN THE SCHOOLS; BUT THE BIBLE IS NOT SECTARIAN  ...  .
THE SCRIPTURES SHOULD AT LEAST BE READ AT THE OPENING OF THE SCHOOL, IF
NO MORE.  PRAYER MAY ALSO BE OFFERED WITH THE HAPPIEST EFFECTS." 
(FN38) 

WISCONSIN'S SUPERINTENDENT OF PUBLIC INSTRUCTION, WRITING A FEW YEARS
LATER IN 1858, REFLECTED THE ATTITUDE OF HIS EASTERN COLLEAGUES, IN
THAT HE REGARDED "WITH SPECIAL FAVOR THE USE OF THE BIBLE IN PUBLIC
SCHOOLS, AS PRE-EMINENTLY FIRST IN IMPORTANCE AMONG TEXT-BOOKS FOR
TEACHING THE NOBLEST PRINCIPLES OF VIRTUE, MORALITY, PATRIOTISM, AND
GOOD ORDER - LOVE AND REVERENCE FOR GOD - CHARITY AND GOOD WILL TO
MAN."  (FN39) 

SUCH STATEMENTS REVEAL THE UNDERSTANDING OF EDUCATORS THAT THE DAILY
RELIGIOUS EXERCISES IN THE SCHOOLS SERVED BROADER GOALS THAN COMPELLING
FORMAL WORSHIP OF GOD OR FOSTERING CHURCH ATTENDANCE.  THE RELIGIOUS
AIMS OF THE EDUCATORS WHO ADOPTED AND RETAINED SUCH EXERCISES WERE
COMPREHENSIVE, AND IN MANY CASES QUITE DEVOID OF SECTARIAN BIAS - BUT
THE CRUCIAL FACT IS THAT THEY WERE NONETHELESS RELIGIOUS.  WHILE IT HAS
BEEN SUGGESTED, SEE PP. 278-281, INFRA, THAT DAILY PRAYER AND READING
OF SCRIPTURE NOW SERVE SECULAR GOALS AS WELL, THERE CAN BE NO DOUBT
THAT THE ORIGINS OF THESE PRACTICES WERE UNAMBIGUOUSLY RELIGIOUS, EVEN
WHERE THE EDUCATOR'S AIM WAS NOT TO WIN ADHERENTS TO A PARTICULAR CREED
OR FAITH. 

ALMOST FROM THE BEGINNING RELIGIOUS EXERCISES IN THE PUBLIC SCHOOLS
HAVE BEEN THE SUBJECT OF INTENSE CRITICISM, VIGOROUS DEBATE, AND
JUDICIAL OR ADMINISTRATIVE PROHIBITION.  SIGNIFICANTLY, EDUCATORS AND
SCHOOL BOARDS EARLY ENTERTAINED DOUBTS ABOUT BOTH THE LEGALITY AND THE
SOUNDNESS OF OPENING THE SCHOOL DAY WITH COMPULSORY PRAYER OR BIBLE
READING.  PARTICULARLY IN THE LARGE EASTERN CITIES, WHERE IMMIGRATION
HAD EXPOSED THE PUBLIC SCHOOLS TO RELIGIOUS DIVERSITIES AND CONFLICTS
UNKNOWN TO THE HOMOGENEOUS ACADEMIES OF THE EIGHTEENTH CENTURY, LOCAL
AUTHORITIES FOUND IT NECESSARY EVEN BEFORE THE CIVIL WAR TO SEEK AN
ACCOMMODATION.  IN 1843, THE PHILADELPHIA SCHOOL BOARD ADOPTED THE
FOLLOWING RESOLUTIONS: 

"RESOLVED, THAT NO CHILDREN BE REQUIRED TO ATTEND OR UNITE IN THE
READING OF THE BIBLE IN THE PUBLIC SCHOOLS, WHOSE PARENTS ARE
CONSCIENTIOUSLY OPPOSED THERETO: 

"RESOLVED, THAT THOSE CHILDREN WHOSE PARENTS CONSCIENTIOUSLY PREFER
AND DESIRE ANY PARTICULAR VERSION OF THE BIBLE, WITHOUT NOTE OR
COMMENT, BE FURNISHED WITH SAME."  (FN40) 

A DECADE LATER, THE SUPERINTENDENT OF SCHOOLS OF NEW YORK STATE
ISSUED AN EVEN BOLDER DECREE THAT PRAYERS COULD NO LONGER BE REQUIRED
AS PART OF PUBLIC SCHOOL ACTIVITIES, AND THAT WHERE THE KING JAMES
BIBLE WAS READ, CATHOLIC STUDENTS COULD NOT BE COMPELLED TO ATTEND. 
(FN41)  THIS TYPE OF ACCOMMODATION WAS NOT RESTRICTED TO THE EAST
COAST; THE CINCINNATI BOARD OF EDUCATION RESOLVED IN 1869 THAT
"RELIGIOUS INSTRUCTION AND THE READING OF RELIGIOUS BOOKS, INCLUDING
THE HOLY BIBLE, ARE PROHIBITED IN THE COMMON SCHOOLS OF CINCINNATI, IT
BEING THE TRUE OBJECT AND INTENT OF THIS RULE TO ALLOW THE CHILDREN OF
THE PARENTS OF ALL SECTS AND OPINIONS, IN MATTERS OF FAITH AND WORSHIP,
TO ENJOY ALIKE THE BENEFIT OF THE COMMON-SCHOOL FUND."  (FN42)  THE
BOARD REPEALED AT THE SAME TIME AN EARLIER REGULATION WHICH HAD
REQUIRED THE SINGING OF HYMNS AND PSALMS TO ACCOMPANY THE BIBLE READING
AT THE START OF THE SCHOOL DAY.  AND IN 1889, ONE COMMENTATOR VENTURED
THE VIEW THAT "THERE IS NOT ENOUGH TO BE GAINED FROM BIBLE READING TO
JUSTIFY THE QUARREL THAT HAS BEEN RAISED OVER IT."  (FN43)

THUS A GREAT DEAL OF CONTROVERSY OVER RELIGION IN THE PUBLIC SCHOOLS
HAD PRECEDED THE DEBATE OVER THE BLAINE AMENDMENT, PRECIPITATED BY
PRESIDENT GRANT'S INSISTENCE THAT MATTERS OF RELIGION SHOULD BE LEFT
"TO THE FAMILY ALTAR, THE CHURCH, AND THE PRIVATE SCHOOL, SUPPORTED
ENTIRELY BY PRIVATE CONTRIBUTIONS."  (FN44)  THERE WAS AMPLE PRECEDENT,
TOO, FOR THEODORE ROOSEVELT'S DECLARATION THAT IN THE INTEREST OF
"ABSOLUTELY NONSECTARIAN PUBLIC SCHOOLS" IT WAS "NOT OUR BUSINESS TO
HAVE THE PROTESTANT BIBLE OR THE CATHOLIC VULGATE OR THE TALMUD READ IN
THOSE SCHOOLS."  (FN45)  THE SAME PRINCIPLE APPEARED IN THE MESSAGE OF
AN OHIO GOVERNOR WHO VETOED A COMPULSORY BIBLE-READING BILL IN 1925: 

"IT IS MY BELIEF THAT RELIGIOUS TEACHING IN OUR HOMES, SUNDAY
SCHOOLS, CHURCHES, BY THE GOOD MOTHERS, FATHERS, AND MINISTERS OF OHIO
IS FAR PREFERABLE TO COMPULSORY TEACHING OF RELIGION BY THE STATE.  THE
SPIRIT OF OUR FEDERAL AND STATE CONSTITUTIONS FROM THE BEGINNING  ...
HAS BEEN TO LEAVE RELIGIOUS INSTRUCTION OF THE DISCRETION OF PARENTS." 
(FN46) 

THE SAME THEME HAS RECURRED IN THE OPINIONS OF THE ATTORNEYS GENERAL
OF SEVERAL STATES HOLDING RELIGIOUS EXERCISES OR INSTRUCTION TO BE IN
VIOLATION OF THE STATE OR FEDERAL CONSTITUTIONAL COMMAND OF SEPARATION
OF CHURCH AND STATE.  (FN47)  THUS THE BASIC PRINCIPLE UPON WHICH OUR
DECISION LAST YEAR IN ENGEL V. VITALE NECESSARILY RESTED, AND WHICH WE
REAFFIRM TODAY, CAN HARDLY BE THOUGHT TO BE RADICAL OR NOVEL. 

PARTICULARLY RELEVANT FOR OUR PURPOSES ARE THE DECISIONS OF THE STATE
COURTS ON QUESTIONS OF RELIGION IN THE PUBLIC SCHOOLS.  THOSE
DECISIONS, WHILE NOT, OF COURSE, AUTHORITATIVE IN THIS COURT, SERVE
NEVERTHELESS TO DEFINE THE PROBLEM BEFORE US AND TO GUIDE OUR INQUIRY. 
WITH THE GROWTH OF RELIGIOUS DIVERSITY AND THE RISE OF VIGOROUS DISSENT
IT WAS INEVITABLE THAT THE COURTS WOULD BE CALLED UPON TO ENJOIN
RELIGIOUS PRACTICES IN THE PUBLIC SCHOOLS WHICH OFFENDED CERTAIN SECTS
AND GROUPS.  THE EARLIEST OF SUCH DECISIONS DECLINED TO REVIEW THE
PROPRIETY OF ACTIONS TAKEN BY SCHOOL AUTHORITIES, SO LONG AS THOSE
ACTIONS WERE WITHIN THE PURVIEW OF THE ADMINISTRATORS' POWERS.  (FN48)
THUS, WHERE THE LOCAL SCHOOL BOARD REQUIRED RELIGIOUS EXERCISES, THE
COURTS WOULD NOT ENJOIN THEM; (FN49) AND WHERE, AS IN AT LEAST ONE
CASE, THE SCHOOL OFFICIALS FORBADE DEVOTIONAL PRACTICES, THE COURT
REFUSED ON SIMILAR GROUNDS TO OVERRULE THAT DECISION.  (FN50)  THUS,
WHICHEVER WAY THE EARLY CASES CAME UP, THE GOVERNING PRINCIPLE OF
NEARLY COMPLETE DEFERENCE TO ADMINISTRATIVE DISCRETION EFFECTIVELY
FORECLOSED ANY CONSIDERATION OF CONSTITUTIONAL QUESTIONS. 

THE LAST QUARTER OF THE NINETEENTH CENTURY FOUND THE COURTS BEGINNING
TO QUESTION THE CONSTITUTIONALITY OF PUBLIC SCHOOL RELIGIOUS
EXERCISES.  THE LEGAL CONTEXT WAS STILL, OF COURSE, THAT OF THE STATE
CONSTITUTIONS, SINCE THE FIRST AMENDMENT HAD NOT YET BEEN HELD
APPLICABLE TO STATE ACTION.  AND THE STATE CONSTITUTIONAL PROHIBITIONS
AGAINST CHURCH-STATE COOPERATION OR GOVERNMENTAL AID TO RELIGION WERE
GENERALLY LESS RIGOROUS THAN THE ESTABLISHMENT CLAUSE OF THE FIRST
AMENDMENT.  IT IS THEREFORE REMARKABLE THAT THE COURTS OF A HALF DOZEN
STATES FOUND COMPULSORY RELIGIOUS EXERCISES IN THE PUBLIC SCHOOLS IN
VIOLATION OF THEIR RESPECTIVE STATE CONSTITUTIONS.  (FN51)  THESE
COURTS ATTRIBUTED MUCH SIGNIFICANCE TO THE CLEARLY RELIGIOUS ORIGINS
AND CONTENT OF THE CHALLENGED PRACTICES, AND TO THE IMPOSSIBILITY OF
AVOIDING SECTARIAN CONTROVERSY IN THEIR CONDUCT.  THE ILLINOIS SUPREME
COURT EXPRESSED IN 1910 THE PRINCIPLES WHICH CHARACTERIZED THESE
DECISIONS: 

"THE PUBLIC SCHOOL IS SUPPORTED BY THE TAXES WHICH EACH CITIZEN,
REGARDLESS OF HIS RELIGION OR HIS LACK OF IT, IS COMPELLED TO PAY.  THE
SCHOOL, LIKE THE GOVERNMENT, IS SIMPLY A CIVIL INSTITUTION.  IT IS
SECULAR, AND NOT RELIGIOUS, IN ITS PURPOSES.  THE TRUTHS OF THE BIBLE
ARE THE TRUTHS OF RELIGION, WHICH DO NOT COME WITHIN THE PROVINCE OF
THE PUBLIC SCHOOL  ...  .  NO ONE DENIES THAT THEY SHOULD BE TAUGHT TO
THE YOUTH OF THE STATE.  THE CONSTITUTION AND THE LAW DO NOT INTERFERE
WITH SUCH TEACHING, BUT THEY DO BANISH THEOLOGICAL POLEMICS FROM THE
SCHOOLS AND THE SCHOOL DISTRICTS.  THIS IS DONE, NOT FROM ANY HOSTILITY
TO RELIGION, BUT BECAUSE IT IS NO PART OF THE DUTY OF THE STATE TO
TEACH RELIGION, - TO TAKE THE MONEY OF ALL AND APPLY IT TO TEACHING THE
CHILDREN OF ALL THE RELIGION OF A PART, ONLY.  INSTRUCTION IN RELIGION
MUST BE VOLUNTARY."  PEOPLE EX REL.  RING V. BOARD OF EDUCATION, 245
ILL. 334, 349, 92 N.E. 251, 256 (1910). 

THE SUPREME COURT OF SOUTH DAKOTA, IN BANNING DEVOTIONAL EXERCISES
FROM THE PUBLIC SCHOOLS OF THAT STATE, ALSO CAUTIONED THAT "THE STATE
AS AN EDUCATOR MUST KEEP OUT OF THIS FIELD, AND ESPECIALLY IS THIS TRUE
IN THE COMMON SCHOOLS, WHERE THE CHILD IS IMMATURE, WITHOUT FIXED
RELIGIOUS CONVICTIONS ...  ."  STATE EX REL. FINGER V. WEEDMAN, 55 S.D.
343, 357, 226 N.W. 348, 354 (1929). 

EVEN THOSE STATE COURTS WHICH HAVE SUSTAINED DEVOTIONAL EXERCISES
UNDER STATE LAW (FN52) HAVE USUALLY RECOGNIZED THE PRIMARILY RELIGIOUS
CHARACTER OF PRAYERS AND BIBLE READINGS.  IF SUCH PRACTICES WERE NOT
FOR THAT REASON UNCONSTITUTIONAL, IT WAS NECESSARILY BECAUSE THE STATE
CONSTITUTION FORBADE ONLY PUBLIC EXPENDITURES FOR SECTARIAN
INSTRUCTION, OR FOR ACTIVITIES WHICH MADE THE SCHOOLHOUSE A "PLACE OF
WORSHIP," BUT SAID NOTHING ABOUT THE SUBTLER QUESTION OF LAWS
"RESPECTING AN ESTABLISHMENT OF RELIGION."  (FN53)  THUS THE PANORAMA
OF HISTORY PERMITS NO OTHER CONCLUSION THAN THAT DAILY PRAYERS AND
BIBLE READINGS IN THE PUBLIC SCHOOLS HAVE ALWAYS BEEN DESIGNED TO BE,
AND HAVE BEEN REGARDED AS, ESSENTIALLY RELIGIOUS EXERCISES.  UNLIKE THE
SUNDAY CLOSING LAWS, THESE EXERCISES APPEAR NEITHER TO HAVE BEEN
DIVORCED FROM THEIR RELIGIOUS ORIGINS NOR DEPRIVED OF THEIR CENTRALLY
RELIGIOUS CHARACTER BY THE PASSAGE OF TIME, (FN54) CF. MCGOWAN V.
MARYLAND, SUPRA, AT 442-445.  ON THIS DISTINCTION ALONE WE MIGHT WELL
REST A CONSTITUTIONAL DECISION.  BUT THREE FURTHER CONTENTIONS HAVE
BEEN PRESSED IN THE ARGUMENT OF THESE CASES.  THESE CONTENTIONS DESERVE
CAREFUL CONSIDERATION, FOR IF THE POSITION OF THE SCHOOL AUTHORITIES
WERE CORRECT IN RESPECT TO ANY OF THEM, WE WOULD BE MISAPPLYING THE
PRINCIPLES OF ENGEL V. VITALE. 

                                        A. 

FIRST, IT IS ARGUED THAT HOWEVER CLEARLY RELIGIOUS MAY HAVE BEEN THE
ORIGINS AND EARLY NATURE OF DAILY PRAYER AND BIBLE READING, THESE
PRACTICES TODAY SERVE SO CLEARLY SECULAR EDUCATIONAL PURPOSES THAT
THEIR RELIGIOUS ATTRIBUTES MAY BE OVERLOOKED.  I DO NOT DOUBT, FOR
EXAMPLE, THAT MORNING DEVOTIONAL EXERCISES MAY FOSTER BETTER DISCIPLINE
IN THE CLASSROOM, AND ELEVATE THE SPIRITUAL LEVEL ON WHICH THE SCHOOL
DAY OPENS.  THE PENNSYLVANIA SUPERINTENDENT OF PUBLIC INSTRUCTION,
TESTIFYING BY DEPOSITION IN THE SCHEMPP CASE, OFFERED HIS VIEW THAT
DAILY BIBLE READING "PLACES UPON THE CHILDREN OR THOSE HEARING THE
READING OF THIS, AND THE ATMOSPHERE WHICH GOES ON IN THE READING  ...
ONE OF THE LAST VESTIGES OF MORAL VALUE THAT WE HAVE LEFT IN OUR SCHOOL
SYSTEM."  THE EXERCISE THUS AFFORDS, THE SUPERINTENDENT CONCLUDED, "A
STRONG CONTRADICTION TO THE MATERIALISTIC TRENDS OF OUR TIME." 
BALTIMORE'S SUPERINTENDENT OF SCHOOLS EXPRESSED A SIMILAR VIEW OF THE
PRACTICES CHALLENGED IN THE MURRAY CASE, TO THE EFFECT THAT "THE
ACKNOWLEDGEMENT OF THE EXISTENCE OF GOD AS SYMBOLIZED IN THE OPENING
EXERCISES ESTABLISHES A DISCIPLINE TONE WHICH TENDS TO CAUSE EACH
INDIVIDUAL PUPIL TO CONSTRAIN HIS OVERT ACTS AND TO CONSEQUENTLY
CONFORM TO ACCEPTED STANDARDS OF BEHAVIOR DURING HIS ATTENDANCE AT
SCHOOL."  THESE VIEWS ARE BY NO MEANS NOVEL, SEE, E.G., BILLARD V.
BOARD OF EDUCATION, 69 KAN. 53, 57-58, 76 P. 422, 423 (1904).  (FN55) 

IT IS NOT THE BUSINESS OF THIS COURT TO GAINSAY THE JUDGMENTS OF
EXPERTS ON MATTERS OF PEDAGOGY.  SUCH DECISIONS MUST BE LEFT TO THE
DISCRETION OF THOSE ADMINISTRATORS CHARGED WITH THE SUPERVISION OF THE
NATION'S PUBLIC SCHOOLS.  THE LIMITED PROVINCE OF THE COURTS IS TO
DETERMINE WHETHER THE MEANS WHICH THE EDUCATORS HAVE CHOSEN TO ACHIEVE
LEGITIMATE PEDAGOGICAL ENDS INFRINGE THE CONSTITUTIONAL FREEDOMS OF THE
FIRST AMENDMENT.  THE SECULAR PURPOSES WHICH DEVOTIONAL EXERCISES ARE
SAID TO SERVE FALL INTO TWO CATEGORIES - THOSE WHICH DEPEND UPON AN
IMMEDIATELY RELIGIOUS EXPERIENCE SHARED BY THE PARTICIPATING CHILDREN;
AND THOSE WHICH APPEAR SUFFICIENTLY DIVORCED FROM THE RELIGIOUS CONTENT
OF THE DEVOTIONAL MATERIAL THAT THEY CAN BE SERVED EQUALLY BY
NONRELIGIOUS MATERIALS.  WITH RESPECT TO THE FIRST OBJECTIVE, MUCH HAS
BEEN WRITTEN ABOUT THE MORAL AND SPIRITUAL VALUES OF INFUSING SOME
RELIGIOUS INFLUENCE OR INSTRUCTION INTO THE PUBLIC SCHOOL CLASSROOM. 
(FN56)  TO THE EXTENT THAT ONLY RELIGIOUS MATERIALS WILL SERVE THIS
PURPOSE, IT SEEMS TO ME THAT THE PURPOSE AS WELL AS THE MEANS IS SO
PLAINLY RELIGIOUS THAT THE EXERCISE IS NECESSARILY FORBIDDEN BY THE
ESTABLISHMENT CLAUSE.  THE FACT THAT PURELY SECULAR BENEFITS MAY
EVENTUALLY RESULT DOES NOT SEEM TO ME TO JUSTIFY THE EXERCISES, FOR
SIMILAR INDIRECT NONRELIGIOUS BENEFITS COULD NO DOUBT HAVE BEEN CLAIMED
FOR THE RELEASED TIME PROGRAM INVALIDATED IN MCCOLLUM. 

THE SECOND JUSTIFICATION ASSUMES THAT RELIGIOUS EXERCISES AT THE
START OF THE SCHOOL DAY MAY DIRECTLY SERVE SOLELY SECULAR ENDS - FOR
EXAMPLE, BY FOSTERING HARMONY AND TOLERANCE AMONG THE PUPILS, ENHANCING
THE AUTHORITY OF THE TEACHER, AND INSPIRING BETTER DISCIPLINE.  TO THE
EXTENT THAT SUCH BENEFITS RESULT NOT FROM THE CONTENT OF THE READINGS
AND RECITATION, BUT SIMPLY FROM THE HOLDING OF SUCH A SOLEMN EXERCISE
AT THE OPENING ASSEMBLY OR THE FIRST CLASS OF THE DAY, IT WOULD SEEM
THAT LESS SENSITIVE MATERIALS MIGHT EQUALLY WELL SERVE THE SAME
PURPOSE.  I HAVE PREVIOUSLY SUGGESTED THAT TORCASO AND THE SUNDAY LAW
CASES FORBID THE USE OF RELIGIOUS MEANS TO ACHIEVE SECULAR ENDS WHERE
NONRELIGIOUS MEANS WILL SUFFICE.  THAT PRINCIPLE IS READILY APPLIED TO
THESE CASES.  IT HAS NOT BEEN SHOWN THAT READINGS FROM THE SPEECHES AND
MESSAGES OF GREAT AMERICANS, FOR EXAMPLE, OR FROM THE DOCUMENTS OF OUR
HERITAGE OF LIBERTY, DAILY RECITATION OF THE PLEDGE OF ALLEGIANCE, OR
EVEN THE OBSERVANCE OF A MOMENT OF REVERENT SILENCE AT THE OPENING OF
CLASS, MAY NOT ADEQUATELY SERVE THE SOLELY SECULAR PURPOSES OF THE
DEVOTIONAL ACTIVITIES WITHOUT JEOPARDIZING EITHER THE RELIGIOUS
LIBERTIES OF ANY MEMBERS OF THE COMMUNITY OR THE PROPER DEGREE OF
SEPARATION BETWEEN THE SPHERES OF RELIGION AND GOVERNMENT.  (FN57)
SUCH SUBSTITUTES WOULD, I THINK, BE UNSATISFACTORY OR INADEQUATE ONLY
TO THE EXTENT THAT THE PRESENT ACTIVITIES DO IN FACT SERVE RELIGIOUS
GOALS.  WHILE I DO NOT QUESTION THE JUDGMENT OF EXPERIENCED EDUCATORS
THAT THE CHALLENGED PRACTICES MAY WELL ACHIEVE VALUABLE SECULAR ENDS,
IT SEEMS TO ME THAT THE STATE ACTS UNCONSTITUTIONALLY IF IT EITHER SETS
ABOUT TO ATTAIN EVEN INDIRECTLY RELIGIOUS ENDS BY RELIGIOUS MEANS, OR
IF IT USES RELIGIOUS MEANS TO SERVE SECULAR ENDS WHERE SECULAR MEANS
WOULD SUFFICE. 

               B. 

SECOND, IT IS ARGUED THAT THE PARTICULAR PRACTICES INVOLVED IN THE
TWO CASES BEFORE US ARE UNOBJECTIONABLE BECAUSE THEY PREFER NO
PARTICULAR SECT OR SECTS AT THE EXPENSE OF OTHERS.  BOTH THE BALTIMORE
AND ABINGTON PROCEDURES PERMIT, FOR EXAMPLE, THE READING OF ANY OF
SEVERAL VERSIONS OF THE BIBLE, AND THIS FLEXIBILITY IS SAID TO ENSURE
NEUTRALITY SUFFICIENTLY TO AVOID THE CONSTITUTIONAL PROHIBITION.  ONE
ANSWER, WHICH MIGHT BE DISPOSITIVE, IS THAT ANY VERSION OF THE BIBLE IS
INHERENTLY SECTARIAN, ELSE THERE WOULD BE NO NEED TO OFFER A SYSTEM OF
ROTATION OR ALTERNATION OF VERSIONS IN THE FIRST PLACE, THAT IS, TO
ALLOW DIFFERENT SECTARIAN VERSIONS TO BE USED ON DIFFERENT DAYS.  THE
CONTROVERSY OVER RELIGIOUS PRACTICES IN THE PUBLIC SCHOOLS THROUGHOUT
ITS LONG AND OFTEN BITTER HISTORY.  (FN58)  TO VARY THE VERSION AS THE
ABINGTON AND BALTIMORE SCHOOLS HAVE DONE MAY WELL BE LESS OFFENSIVE
THAN TO READ FROM THE KING JAMES VERSION EVERY DAY, AS ONCE WAS THE
PRACTICE.  BUT THE RESULT EVEN OF THIS RELATIVELY BENIGN PROCEDURE IS
THAT MAJORITY SECTS ARE PREFERRED IN APPROXIMATE PROPORTION TO THEIR
REPRESENTATION IN THE COMMUNITY AND IN THE STUDENT BODY, WHILE THE
SMALLER SECTS SUFFER COMMENSURATE DISCRIMINATION.  SO LONG AS THE
SUBJECT MATTER OF THE EXERCISE IS SECTARIAN IN CHARACTER, THESE
CONSEQUENCES CANNOT BE AVOIDED. 

THE ARGUMENT CONTAINS, HOWEVER, A MORE BASIC FLAW.  THERE ARE PERSONS
IN EVERY COMMUNITY - OFTEN DEEPLY DEVOUT - TO WHOM ANY VERSION OF THE
JUDAEO-CHRISTIAN BIBLE IS OFFENSIVE.  (FN59)  THERE ARE OTHERS WHOSE
REVERENCE FOR THE HOLY SCRIPTURES DEMANDS PRIVATE STUDY OR REFLECTION
AND TO WHOM PUBLIC READING OR RECITATION IN SACRILEGIOUS, AS ONE OF THE
EXPERT WITNESSES AT THE TRIAL OF THE SCHEMPP CASE EXPLAINED.  TO SUCH
PERSONS IT IS NOT THE FACT OF USING THE BIBLE IN THE PUBLIC SCHOOLS,
NOR THE CONTENT OF ANY PARTICULAR VERSION, THAT IS OFFENSIVE, BUT ONLY
THE MANNER IN WHICH IT IS USED.  (FN60)  FOR SUCH PERSONS, THE ANATHEMA
OF PUBLIC COMMUNION IS EVEN MORE PRONOUNCED WHEN PRAYER IS INVOLVED. 
MANY DEEPLY DEVOUT PERSONS HAVE ALWAYS REGARDED PRAYER AS A NECESSARILY
PRIVATE EXPERIENCE.  (FN61)  ONE PROTESTANT GROUP RECENTLY COMMENTED,
FOR EXAMPLE:  "WHEN ONE THINKS OF PRAYER AS SINCERE OUTREACH OF A HUMAN
SOUL TO THE CREATOR, 'REQUIRED PRAYER' BECOMES AN ABSURDITY."  (FN62)
THERE IS A SIMILAR PROBLEM WITH RESPECT TO COMMENT UPON THE PASSAGES OF
SCRIPTURE WHICH ARE TO BE READ.  MOST PRESENT STATUTES FORBID COMMENT,
AND THIS PRACTICE ACCORDS WITH THE VIEWS OF MANY RELIGIOUS GROUPS AS TO
THE MANNER IN WHICH THE BIBLE SHOULD BE READ.  HOWEVER, AS A RECENT
SURVEY DISCLOSES, SCRIPTURAL PASSAGES READ WITHOUT COMMENT FREQUENTLY
CONVEY NO MESSAGE TO THE YOUNGER CHILDREN IN THE SCHOOL.  THUS THERE
HAS DEVELOPED A PRACTICE IN SOME SCHOOLS OF BRIDGING THE GAP BETWEEN
FAITH AND UNDERSTANDING BY MEANS OF "DEFINITIONS," EVEN WHERE "COMMENT"
IS FORBIDDEN BY STATUTE.  (FN63)  THE PRESENT PRACTICE THEREFORE POSES
A DIFFICULT DILEMMA:  WHILE BIBLE READING IS ALMOST UNIVERSALLY
REQUIRED TO BE WITHOUT COMMENT, SINCE ONLY BY SUCH A PROHIBITION CAN
BREAKS DOWN AT THE POINT AT WHICH RUDIMENTARY DEFINITIONS OF BIBLICAL
TERMS ARE NECESSARY FOR COMPREHENSION IF THE EXERCISE IS TO BE
MEANINGFUL AT ALL. 

IT HAS BEEN SUGGESTED THAT A TENTATIVE SOLUTION TO THESE PROBLEMS MAY
LIE IN THE FASHIONING OF A "COMMON CORE" OF THEOLOGY TOLERABLE TO ALL
CREEDS BUT PREFERENTIAL TO NONE.  (FN64)  BUT AS ONE COMMENTATOR HAS
RECENTLY OBSERVED, "HISTORY IS NOT ENCOURAGING TO" THOSE WHO HOPE TO
FASHION A "COMMON DENOMINATOR OF RELIGION DETACHED FROM ITS
MANIFESTATION IN ANY ORGANIZED CHURCH."  SUTHERLAND, ESTABLISHMENT
ACCORDING TO ENGEL, 76 HARV. L.REV.  25, 51 (1962).  THUS, THE NOTION
OF A "COMMON CORE" LITANY OR SUPPLICATION OFFENDS MANY DEEPLY DEVOUT
WORSHIPPERS WHO DO NOT FIND CLEARLY SECTARIAN PRACTICES OBJECTIONABLE. 
(FN65)  FATHER GUSTAVE WEIGEL HAS RECENTLY EXPRESSED A WIDELY SHARED
VIEW:  "THE MORAL CODE HELD BY EACH SEPARATE RELIGIOUS COMMUNITY CAN
REDUCTIVELY BE UNIFIED, BUT THE CONSISTENT PARTICULAR BELIEVER WANTS NO
SUCH REDUCTION."  (FN66)  AND, AS THE AMERICAN COUNCIL ON EDUCATION
WARNED SEVERAL YEARS AGO, "THE NOTION OF A COMMON CORE SUGGESTS A
WATERING DOWN OF THE SEVERAL FAITHS TO THE POINT WHERE COMMON
ESSENTIALS APPEAR.  THIS MIGHT EASILY LEAD TO A NEW SECT - A PUBLIC
SCHOOL SECT - WHICH WOULD TAKE ITS PLACE ALONGSIDE THE EXISTING FAITHS
AND COMPETE WITH THEM."  (FN67)  ENGEL IS SURELY AUTHORITY THAT
NONSECTARIAN RELIGIOUS PRACTICES, EQUALLY WITH SECTARIAN EXERCISES,
VIOLATE THE ESTABLISHMENT CLAUSE.  MOREOVER, EVEN IF THE ESTABLISHMENT
CLAUSE WERE OBLIVIOUS TO NONSECTARIAN RELIGIOUS PRACTICES, I THINK IT
QUITE LIKELY THAT THE "COMMON CORE" APPROACH WOULD BE SUFFICIENTLY
OBJECTIONABLE TO MANY GROUPS TO BE FORECLOSED BY THE PROHIBITIONS OF
THE FREE EXERCISE CLAUSE. 

           C. 

A THIRD ELEMENT WHICH IS SAID TO ABSOLVE THE PRACTICES INVOLVED IN
THESE CASES FROM THE BAN OF THE RELIGIOUS GUARANTEES OF THE
CONSTITUTION IS THE PROVISION TO EXCUSE OR EXEMPT STUDENTS WHO WISH NOT
TO PARTICIPATE.  INSOFAR AS THESE PRACTICES ARE CLAIMED TO VIOLATE THE
ESTABLISHMENT CLAUSE, I FIND THE ANSWER WHICH THE DISTRICT COURT GAVE
AFTER OUR REMAND OF SCHEMPP TO BE ALTOGETHER DISPOSITIVE: 

"THE FACT THAT SOME PUPILS, OR THEORETICALLY ALL PUPILS, MIGHT BE
EXCUSED FROM ATTENDANCE AT THE EXERCISES DOES NOT MITIGATE THE
OBLIGATORY NATURE OF THE CEREMONY  ...  .  THE EXERCISES ARE HELD IN
THE SCHOOL BUILDINGS AND PERFORCE ARE CONDUCTED BY AND UNDER THE
AUTHORITY OF THE LOCAL SCHOOL AUTHORITIES AND DURING SCHOOL SESSIONS. 
SINCE THE STATUTE REQUIRES THE READING OF THE 'HOLY BIBLE,' A CHRISTIAN
DOCUMENT, THE PRACTICE, AS WE SAID IN OUR FIRST OPINION, PREFERS THE
CHRISTIAN RELIGION.   THE RECORD DEMONSTRATES THAT IT WAS THE INTENTION
OF THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF PENNSYLVANIA TO
INTRODUCE A RELIGIOUS CEREMONY INTO THE PUBLIC SCHOOLS OF THE
COMMONWEALTH."  201 F. SUPP., AT 819. 

THUS THE SHORT, AND TO ME SUFFICIENT, ANSWER IS THAT THE AVAILABILITY
OF EXCUSAL OR EXEMPTION SIMPLY HAS NO RELEVANCE TO THE ESTABLISHMENT
QUESTION, IF IT IS ONCE FOUND THAT THESE PRACTICES ARE ESSENTIALLY
RELIGIOUS EXERCISES DESIGNED AT LEAST IN PART TO ACHIEVE RELIGIOUS AIMS
THROUGH THE USE OF PUBLIC SCHOOL FACILITIES DURING THE SCHOOL DAY. 

THE MORE DIFFICULT QUESTION, HOWEVER, IS WHETHER THE AVAILABILITY OF
EXCUSAL FOR THE DISSENTING CHILD SERVES TO REFUTE CHALLENGES TO THESE
PRACTICES UNDER THE FREE EXERCISE CLAUSE.  WHILE IT IS ENOUGH TO DECIDE
THESE CASES TO DISPOSE OF THE ESTABLISHMENT QUESTIONS, QUESTIONS OF
FREE EXERCISE ARE SO INEXTRICABLY INTERWOVEN INTO THE HISTORY AND
PRESENT STATUS OF THESE PRACTICES AS TO JUSTIFY DISPOSITION OF THIS
SECOND ASPECT OF THE EXCUSAL ISSUE.  THE ANSWER IS THAT THE EXCUSAL
PROCEDURE ITSELF NECESSARILY OPERATES IN SUCH A WAY AS TO INFRINGE THE
RIGHTS OF FREE EXERCISE OF THOSE CHILDREN WHO WISH TO BE EXCUSED.  WE
HAVE HELD IN BARNETTE AND TORCASO, RESPECTIVELY, THAT A STATE MAY
REQUIRE NEITHER PUBLIC SCHOOL STUDENTS NOR CANDIDATES FOR AN OFFICE OF
PUBLIC TRUST TO PROFESS BELIEFS OFFENSIVE TO RELIGIOUS PRINCIPLES.  BY
THE SAME TOKEN THE STATE COULD NOT CONSTITUTIONALLY REQUIRE A STUDENT
TO PROFESS PUBLICLY HIS DISBELIEF AS THE PREREQUISITE TO THE EXERCISE
OF HIS CONSTITUTIONAL RIGHT OF ABSTENTION.  AND APART FROM TORCASO AND
BARNETTE, I THINK SPEISER V. RANDALL, 357 U.S. 513, SUGGESTS A FURTHER
ANSWER.  WE HALD THERE THAT A STATE MAY NOT CONDITION THE GRANT OF A
TAX EXEMPTION UPON THE WILLINGNESS OF THOSE ENTITLED TO THE EXEMPTION
TO AFFIRM THEIR LOYALTY TO THE GOVERNMENT, EVEN THOUGH THE EXEMPTION
WAS ITSELF A MATTER OF GRACE RATHER THAN OF CONSTITUTIONAL RIGHT.  WE
CONCLUDED THAT TO IMPOSE UPON THE ELIGIBLE TAXPAYERS THE AFFIRMATIVE
BURDEN OF PROVING THEIR LOYALTY IMPERMISSIBLY JEOPARDIZED THE FREEDOM
TO ENGAGE IN CONSTITUTIONALLY PROTECTED ACTIVITIES CLOSE TO THE AREA TO
WHICH THE LOYALTY OATH RELATED.  SPEISER V. RANDALL SEEMS TO ME TO
DISPOSE OF TWO ASPECTS OF THE EXCUSAL OR EXEMPTION PROCEDURE NOW BEFORE
US.  FIRST, BY REQUIRING WHAT IS TANTAMOUNT IN THE EYES OF TEACHERS AND
SCHOOLMATES TO A PROFESSION OF DISBELIEF, OR AT LEAST OF NONCONFORMITY,
THE PROCEDURE MAY WELL DETER THOSE CHILDREN WHO DO NOT WISH TO
PARTICIPATE FOR ANY REASON BASED UPON THE DICTATES OF CONSCIENCE FROM
EXERCISING AN INDISPUTABLY CONSTITUTIONAL RIGHT TO BE EXCUSED.  (FN68)
THUS THE EXCUSAL PROVISION IN ITS OPERATION SUBJECTS THEM TO A CRUEL
DILEMMA.  IN CONSEQUENCE, EVEN DEVOUT CHILDREN MAY WELL AVOID CLAIMING
THEIR RIGHT AND SIMPLY CONTINUE TO PARTICIPATE IN EXERCISES DISTASTEFUL
TO THEM BECAUSE OF AN UNDERSTANDABLE RELUCTANCE TO BE STIGMATIZED AS
ATHEISTS OR NONCONFORMISTS SIMPLY ON THE BASES OF THEIR REQUEST. 

SUCH RELUCTANCE TO SEEK EXEMPTION SEEMS ALL THE MORE LIKELY IN VIEW
OF THE FACT THAT CHILDREN ARE DISINCLINED AT THIS AGE TO STEP OUT OF
LINE OR TO FLOUT "PEER-GROUP NORMS."  SUCH IS THE WIDELY HELD VIEW OF
EXPERTS WHO HAVE STUDIED THE BEHAVIORS AND ATTITUDES OF CHILDREN. 
(FN69)  THIS IS ALSO THE BASIS OF MR. JUSTICE FRANKFURTER'S ANSWER TO A
SIMILAR CONTENTION MADE IN THE MCCOLLUM CASE: 

"THAT A CHILD IS OFFERED AN ALTERNATIVE MAY REDUCE THE CONSTRAINT; IT
DOES NOT ELIMINATE THE OPERATION OF INFLUENCE BY THE SCHOOL IN MATTERS
SACRED TO CONSCIENCE AND OUTSIDE THE SCHOOL'S DOMAIN.  THE LAW OF
IMITATION OPERATES, AND NON-CONFORMITY IS NOT AN OUTSTANDING
CHARACTERISTIC OF CHILDREN.  THE RESULT IS AN OBVIOUS PRESSURE UPON
CHILDREN TO ATTEND."  333 U.S., AT 227.    ALSO APPOSITE IS THE ANSWER
GIVEN MORE THAN 70 YEARS AGO BY THE SUPREME COURT OF WISCONSIN TO THE
ARGUMENT THAT AN EXCUSAL PROVISION SAVED A PUBLIC SCHOOL DEVOTIONAL
EXERCISE FROM CONSTITUTIONAL INVALIDATION: 

"  ...  THE EXCLUDED PUPIL LOSES CASTE WITH HIS FELLOWS, AND IS
LIABLE TO BE REGARDED WITH AVERSION, AND SUBJECTED TO REPROACH AND
INSULT.  BUT IT IS A SUFFICIENT REFUTATION OF THE ARGUMENT THAT THE
PRACTICE IN QUESTION TENDS TO DESTROY THE EQUALITY OF THE PUPILS WHICH
THE CONSTITUTION SEEKS TO ESTABLISH AND PROTECT, AND PUTS A PORTION OF
THEM TO SERIOUS DISADVANTAGE IN MANY WAYS WITH RESPECT TO THE OTHERS." 
STATE EX REL. WEISS V. DISTRICT BOARD OF SCHOOL DISTRICT NO. 8, 76 WIS.
177, 200, 44 N.W. 967, 975. 

AND 50 YEARS AGO A LIKE ANSWER WAS OFFERED BY THE LOUISIANA SUPREME
COURT: 

"UNDER SUCH CIRCUMSTANCES, THE CHILDREN WOULD BE EXCUSED FROM THE
OPENING EXERCISES  ...  BECAUSE OF THEIR RELIGIOUS BELIEFS.  AND
EXCUSING SUCH CHILDREN ON RELIGIOUS GROUNDS, ALTHOUGH THE NUMBER
EXCUSED MIGHT BE VERY SMALL, WOULD BE A DISTINCT PREFERENCE IN FAVOR OF
THE RELIGIOUS BELIEFS OF THE MAJORITY, AND WOULD WORK A DISCRIMINATION
AGAINST THOSE WHO WERE EXCUSED.  THE EXCLUSION OF A PUPIL UNDER SUCH
CIRCUMSTANCES PUTS HIM IN A CLASS BY HIMSELF; IT SUBJECTS HIM TO A
RELIGIOUS STIGMA; AND ALL BECAUSE OF HIS RELIGIOUS BELIEF.  EQUALITY IN
PUBLIC EDUCATION WOULD BE DESTROYED BY SUCH ACT, UNDER A CONSTITUTION
WHICH SEEKS TO ESTABLISH EQUALITY AND FREEDOM IN RELIGIOUS MATTERS." 
HEROLD V. PARISH BOARD OF SCHOOL DIRECTORS, 136 LA. 1034, 1049-1050, 68
SO. 116, 121.  SEE ALSO TUDOR V. BOARD OF EDUCATION, 14 N.J. 31, 48-52,
100 A.2D 857, 867-868; BROWN V. ORANGE COUNTY BOARD OF PUBLIC
INSTRUCTION, 128 SO. 2D 181, 185 (FLA. APP.). 

SPEISER V. RANDALL ALSO SUGGESTS THE ANSWER TO A FURTHER ARGUMENT
BASED ON THE EXCUSAL PROCEDURE.  IT HAS BEEN SUGGESTED BY THE SCHOOL
BOARD, IN SCHEMPP, THAT WE OUGHT NOT PASS UPON THE APPELLEES'
CONSTITUTIONAL CHALLENGE AT LEAST UNTIL THE CHILDREN HAVE AVAILED
THEMSELVES OF THE EXCUSAL PROCEDURE AND FOUND IT INADEQUATE TO REDRESS
THEIR GRIEVANCES.  WERE THE RIGHT TO BE EXCUSED NOT ITSELF OF
CONSTITUTIONAL STATURE, I MIGHT HAVE SOME DOUBT ABOUT THIS ISSUE.  BUT
WE HELD IN SPEISER THAT THE CONSTITUTIONAL VICE OF THE LOYALTY OATH
PROCEDURE DISCHARGED ANY OBLIGATION TO SEEK THE EXEMPTION BEFORE
CHALLENGING THE CONSTITUTIONALITY OF THE CONDITIONS UPON WHICH IT MIGHT
HAVE BEEN DENIED.  357 U.S., AT 529.  SIMILARLY, WE HAVE HELD THAT ONE
NEED NOT APPLY FOR A PERMIT TO DISTRIBUTE CONSTITUTIONALLY PROTECTED
LITERATURE, LOVELL V. GRIFFIN, 303 U.S. 444, OR TO DELIVER A SPEECH,
THOMAS V. COLLINS, 323 U.S. 516, BEFORE HE MAY ATTACK THE
CONSTITUTIONALITY OF A LICENSING SYSTEM OF WHICH THE DEFECT IS PATENT. 
INSOFAR AS THESE CASES IMPLICATE ONLY QUESTIONS OF ESTABLISHMENT, IT
SEEMS TO ME THAT THE AVAILABILITY OF AN EXCUSE IS CONSTITUTIONALLY
IRRELEVANT.  MOREOVER, THE EXCUSAL PROCEDURE SEEMS TO ME TO OPERATE IN
SUCH A WAY AS TO DISCOURAGE THE FREE EXERCISE OF RELIGION ON THE PART
OF THOSE WHO MIGHT WISH TO UTILIZE IT, THEREBY RENDERING IT
UNCONSTITUTIONAL IN AN ADDITIONAL AND QUITE DISTINCT RESPECT. 

TO SUMMARIZE MY VIEWS CONCERNING THE MERITS OF THESE TWO CASES:  THE
HISTORY, THE PURPOSE AND THE OPERATION OF THE DAILY PRAYER RECITAL AND
BIBLE READING LEAVE NO DOUBT THAT THESE PRACTICES STANDING BY
THEMSELVES CONSTITUTE AN IMPERMISSIBLE BREACH OF THE ESTABLISHMENT
CLAUSE.  SUCH DEVOTIONAL EXERCISES MAY WELL SERVE LEGITIMATE
NONRELIGIOUS PURPOSES.  TO THE EXTENT, HOWEVER, THAT SUCH PURPOSES ARE
REALLY WITHOUT RELIGIOUS SIGNIFICANCE, IT HAS NEVER BEEN DEMONSTRATED
THAT SECULAR MEANS WOULD NOT SUFFICE.  INDEED, I WOULD SUGGEST THAT
PATRIOTIC OR OTHER NONRELIGIOUS MATERIALS MIGHT PROVIDE ADEQUATE
SUBSTITUTES - INADEQUATE ONLY TO THE EXTENT THAT THE PURPOSES NOW
SERVED ARE INDEED DIRECTLY OR INDIRECTLY RELIGIOUS.  UNDER SUCH
CIRCUMSTANCES, THE STATES MAY NOT EMPLOY RELIGIOUS MEANS TO REACH A
SECULAR GOAL UNLESS SECULAR MEANS ARE WHOLLY UNAVAILING.  I THEREFORE
AGREE WITH THE COURT THAT THE JUDGMENT IN SCHEMPP, NO. 142, MUST BE
AFFIRMED, AND THAT IN MURRAY, NO. 119, MUST BE REVERSED. 

                                        V. 

THESE CONSIDERATIONS BRING ME TO A FINAL CONTENTION OF THE SCHOOL
OFFICIALS IN THESE CASES:  THAT THE INVALIDATION OF THE EXERCISES AT
BAR PERMITS THIS COURT NO ALTERNATIVE BUT TO DECLARE UNCONSTITUTIONAL
EVERY VESTIGE, HOWEVER SLIGHT, OF COOPERATION OR ACCOMMODATION BETWEEN
RELIGION AND GOVERNMENT.  I CANNOT ACCEPT THAT CONTENTION.  WHILE IT IS
NOT, OF COURSE, APPROPRIATE FOR THIS COURT TO DECIDE QUESTIONS NOT
PRESENTLY BEFORE IT, I VENTURE TO SUGGEST THAT RELIGIOUS EXERCISES IN
THE PUBLIC SCHOOLS PRESENT A UNIQUE PROBLEM.  FOR NOT EVERY INVOLVEMENT
OF RELIGION IN PUBLIC LIFE VIOLATES THE ESTABLISHMENT CLAUSE.  OUR
DECISION IN THESE CASES DOES NOT CLEARLY FORECAST ANYTHING ABOUT THE
CONSTITUTIONALITY OF OTHER TYPES OF INTERDEPENDENCE BETWEEN RELIGIOUS
AND OTHER PUBLIC INSTITUTIONS. 

SPECIFICALLY, I BELIEVE THAT THE LINE WE MUST DRAW BETWEEN THE
PERMISSIBLE AND THE IMPERMISSIBLE IS ONE WHICH ACCORDS WITH HISTORY AND
FAITHFULLY REFLECTS THE UNDERSTANDING OF THE FOUNDING FATHERS.   IT IS
A LINE WHICH THE COURT HAS CONSISTENTLY SOUGHT TO MARK IN ITS DECISIONS
EXPOUNDING THE RELIGIOUS GUARANTEES OF THE FIRST AMENDMENT.  WHAT THE
FRAMERS MEANT TO FORECLOSE, AND WHAT OUR DECISIONS UNDER THE
ESTABLISHMENT CLAUSE HAVE FORBIDDEN, ARE THOSE INVOLVEMENTS OF
RELIGIOUS WITH SECULAR INSTITUTIONS WHICH (A) SERVE THE ESSENTIALLY
RELIGIOUS ACTIVITIES OF RELIGIOUS INSTITUTIONS; (B) EMPLOY THE ORGANS
OF GOVERNMENT FOR ESSENTIALLY RELIGIOUS PURPOSES; OR (C) USE
ESSENTIALLY RELIGIOUS MEANS TO SERVE GOVERNMENTAL ENDS, WHERE SECULAR
MEANS WOULD SUFFICE.  WHEN THE SECULAR AND RELIGIOUS INSTITUTIONS
BECOME INVOLVED IN SUCH A MANNER, THERE INHERE IN THE RELATIONSHIP
PRECISELY THOSE DANGERS - AS MUCH TO CHURCH AS TO STATE - WHICH THE
FRAMERS FEARED WOULD SUBVERT RELIGIOUS LIBERTY AND THE STRENGTH OF A
SYSTEM OF SECULAR GOVERNMENT.  ON THE OTHER HAND, THERE MAY BE MYRIAD
FORMS OF INVOLVEMENTS OF GOVERNMENT WITH RELIGION WHICH DO NOT IMPORT
SUCH DANGERS AND THEREFORE SHOULD NOT, IN MY JUDGMENT, BE DEEMED TO
VIOLATE THE ESTABLISHMENT CLAUSE.  NOTHING IN THE CONSTITUTION COMPELS
THE ORGANS OF GOVERNMENT TO BE BLIND TO WHAT EVERYONE ELSE PERCEIVES -
THAT RELIGIOUS DIFFERENCES AMONG AMERICANS HAVE IMPORTANT AND PERVASIVE
IMPLICATIONS FOR OUR SOCIETY.  LIKEWISE NOTHING IN THE ESTABLISHMENT
CLAUSE FORBIDS THE APPLICATION OF LEGISLATION HAVING PURELY SECULAR
ENDS IN SUCH A WAY AS TO ALLEVIATE BURDENS UPON THE FREE EXERCISE OF AN
INDIVIDUAL'S RELIGIOUS BELIEFS.  SURELY THE FRAMERS WOULD NEVER HAVE
UNDERSTOOD THAT SUCH A CONSTRUCTION SANCTIONS THAT INVOLVEMENT WHICH
VIOLATES THE ESTABLISHMENT CLAUSE.  SUCH A CONCLUSION CAN BE REACHED, I
WOULD SUGGEST, ONLY BY USING THE WORDS OF THE FIRST AMENDMENT TO DEFEAT
ITS VERY PURPOSE. 

THE LINE BETWEEN PERMISSIBLE AND IMPERMISSIBLE FORMS OF INVOLVEMENT
BETWEEN GOVERNMENT AND RELIGION HAS ALREADY BEEN CONSIDERED BY THE
LOWER FEDERAL AND STATE COURTS.  I THINK A BRIEF SURVEY OF CERTAIN OF
THESE FORMS OF ACCOMMODATION WILL REVEAL THAT THE FIRST AMENDMENT
COMMANDS NOT OFFICIAL HOSTILITY TOWARD RELIGION, BUT ONLY A STRICT
NEUTRALITY IN MATTERS OF RELIGION.  MOREOVER, IT MAY SERVE TO SUGGEST
THAT THE SCOPE OF OUR HOLDING TODAY IS TO BE MEASURED BY THE SPECIAL
CIRCUMSTANCES UNDER WHICH THESE CASES HAVE ARISEN, AND BY THE
PARTICULAR DANGERS TO CHURCH AND STATE WHICH RELIGIOUS EXERCISES IN THE
PUBLIC SCHOOLS PRESENT.  IT MAY BE HELPFUL FOR PURPOSES OF ANALYSIS TO
GROUP THESE OTHER PRACTICES AND FORMS OF ACCOMMODATION INTO SEVERAL
ROUGH CATEGORIES. 

A. THE CONFLICT BETWEEN ESTABLISHMENT AND FREE EXERCISE.  - THERE ARE
CERTAIN PRACTICES, CONCEIVABLY VIOLATIVE OF THE ESTABLISHMENT CLAUSE,
THE STRIKING DOWN OF WHICH MIGHT SERIOUSLY INTERFERE WITH CERTAIN
RELIGIOUS LIBERTIES ALSO PROTECTED BY THE FIRST AMENDMENT.  (FN70)
PROVISIONS FOR CHURCHES AND CHAPLAINS AT MILITARY ESTABLISHMENTS FOR
THOSE IN THE ARMED SERVICES MAY AFFORD ONE SUCH EXAMPLE.  (FN71)  THE
LIKE PROVISION BY STATE AND FEDERAL GOVERNMENTS FOR CHAPLAINS IN PENAL
INSTITUTIONS MAY AFFORD ANOTHER EXAMPLE.  (FN72)  IT IS ARGUED THAT
SUCH PROVISIONS MAY BE ASSUMED TO CONTRAVENE THE ESTABLISHMENT CLAUSE,
YET BE SUSTAINED ON CONSTITUTIONAL GROUNDS AS NECESSARY TO SECURE TO
THE MEMBERS OF THE ARMED FORCES AND PRISONERS THOSE RIGHTS OF WORSHIP
GUARANTEED UNDER THE FREE EXERCISE CLAUSE.  SINCE GOVERNMENT HAS
DEPRIVED SUCH PERSONS OF THE OPPORTUNITY TO PRACTICE THEIR FAITH AT
PLACES OF THEIR CHOICE, THE ARGUMENT RUNS, GOVERNMENT MAY, IN ORDER TO
AVOID INFRINGING THE FREE EXERCISE GUARANTEES, PROVIDE SUBSTITUTES
WHERE IT REQUIRES SUCH PERSONS TO BE.  SUCH A PRINCIPLE MIGHT SUPPORT,
FOR EXAMPLE, THE CONSTITUTIONALITY OF DRAFT EXEMPTIONS FOR MINISTERS
AND DIVINITY STUDENTS, (FN73) CF. SELECTIVE DRAFT LAW CASES, 245 U.S.
366, 389-390; OF THE EXCUSAL OF CHILDREN FROM SCHOOL ON THEIR
RESPECTIVE RELIGIOUS HOLIDAYS; AND OF THE ALLOWANCE BY GOVERNMENT OF
TEMPORARY USE OF PUBLIC BUILDINGS BY RELIGIOUS ORGANIZATIONS WHEN THEIR
OWN CHURCHES HAVE BECOME UNAVAILABLE BECAUSE OF DISASTER OR EMERGENCY. 
(FN74) 

SUCH ACTIVITIES AND PRACTICES SEEM DISTINGUISHABLE FROM THE
SPONSORSHIP OF DAILY BIBLE READING AND PRAYER RECITAL.  FOR ONE THING,
THERE IS NO ELEMENT OF COERCION PRESENT IN THE APPOINTMENT OF MILITARY
OR PRISON CHAPLAINS; THE SOLDIER OR CONVICT WHO DECLINES THE
OPPORTUNITIES FOR WORSHIP WOULD NOT ORDINARILY SUBJECT HIMSELF TO THE
SUSPICION OR OBLOQUY OF HIS PEERS.  OF SPECIAL SIGNIFICANCE TO THIS
DISTINCTION IS THE FACT THAT WE ARE HERE USUALLY DEALING WITH ADULTS,
NOT WITH IMPRESSIONABLE CHILDREN AS IN THE PUBLIC SCHOOLS.  MOREOVER,
THE SCHOOL EXERCISES ARE NOT DESIGNED TO PROVIDE THE PUPILS WITH
GENERAL OPPORTUNITIES FOR WORSHIP DENIED THEM BY THE LEGAL OBLIGATION
TO ATTEND SCHOOL.  THE STUDENT'S COMPELLED PRESENCE IN SCHOOL FOR FIVE
DAYS A WEEK IN NO WAY RENDERS THE REGULAR RELIGIOUS FACILITIES OF THE
COMMUNITY LESS ACCESSIBLE TO HIM THAN THEY ARE TO OTHERS.  THE
SITUATION OF THE SCHOOL CHILD IS THEREFORE PLAINLY UNLIKE THAT OF THE
ISOLATED SOLDIER OR THE PRISONER. 

THE STATE MUST BE STEADFASTLY NEUTRAL IN ALL MATTERS OF FAITH, AND
NEITHER FAVOR NOR INHIBIT RELIGION.  IN MY VIEW, GOVERNMENT CANNOT
SPONSOR RELIGIOUS EXERCISES IN THE PUBLIC SCHOOLS WITHOUT JEOPARDIZING
THAT NEUTRALITY.  ON THE OTHER HAND, HOSTILITY, NOT NEUTRALITY, WOULD
CHARACTERIZE THE REFUSAL TO PROVIDE CHAPLAINS AND PLACES OF WORSHIP FOR
PRISONERS AND SOLDIERS CUT OFF BY THE STATE FROM ALL CIVILIAN
OPPORTUNITIES FOR PUBLIC COMMUNION, THE WITHHOLDING OF DRAFT EXEMPTIONS
FOR MINISTERS AND CONSCIENTIOUS OBJECTORS, OR THE DENIAL OF THE
TEMPORARY USE OF AN EMPTY PUBLIC BUILDING TO A CONGREGATION WHOSE PLACE
OF WORSHIP HAS BEEN DESTROYED BY FIRE OR FLOOD.  I DO NOT SAY THAT
GOVERNMENT MUST PROVIDE CHAPLAINS OR DRAFT EXEMPTIONS, OR THAT THE
COURTS SHOULD INTERCEDE IF IT FAILS TO DO SO. 

B. ESTABLISHMENT AND EXERCISES IN LEGISLATIVE BODIES.  - THE SAYING
OF INVOCATIONAL PRAYERS IN LEGISLATIVE CHAMBERS, STATE OR FEDERAL, AND
THE APPOINTMENT OF LEGISLATIVE CHAPLAINS, MIGHT WELL REPRESENT NO
INVOLVEMENTS OF THE KIND PROHIBITED BY THE ESTABLISHMENT CLAUSE. 
(FN75)  LEGISLATORS, FEDERAL AND STATE, ARE MATURE ADULTS WHO MAY
PRESUMABLY ABSENT THEMSELVES FROM SUCH PUBLIC AND CEREMONIAL EXERCISES
WITHOUT INCURRING ANY PENALTY, DIRECT OR INDIRECT.  IT MAY ALSO BE
SIGNIFICANT THAT, AT LEAST IN THE CASE OF THE CONGRESS, ART. I, SEC. 5,
OF THE CONSTITUTION MAKES EACH HOUSE THE MONITOR OF THE "RULES OF ITS
PROCEEDINGS" SO THAT IT IS AT LEAST ARGUABLE WHETHER SUCH MATTERS
PRESENT "POLITICAL QUESTIONS" THE RESOLUTION OF WHICH IS EXCLUSIVELY
CONFIDED TO CONGRESS.  SEE BAKER V. CARR, 369 U.S. 186, 232.  FINALLY,
THERE IS THE DIFFICULT QUESTION OF WHO MAY BE HEARD TO CHALLENGE SUCH
PRACTICES.  SEE ELLIOTT V. WHITE, 23 F.2D 997. 

C. NON-DEVOTIONAL USE OF THE BIBLE IN THE PUBLIC SCHOOLS.  - THE
HOLDING OF THE COURT TODAY PLAINLY DOES NOT FORECLOSE TEACHING ABOUT
THE HOLY SCRIPTURES OR ABOUT THE DIFFERENCES BETWEEN RELIGIOUS SECTS IN
CLASSES IN LITERATURE OR HISTORY.  INDEED, WHETHER OR NOT THE BIBLE IS
INVOLVED, IT WOULD BE IMPOSSIBLE TO TEACH MEANINGFULLY MANY SUBJECTS IN
THE SOCIAL SCIENCES OR THE HUMANITIES WITHOUT SOME MENTION OF
RELIGION.  (FN76)  TO WHAT EXTENT, AND AT WHAT POINTS IN THE
CURRICULUM, RELIGIOUS MATERIALS SHOULD BE CITED ARE MATTERS WHICH THE
COURTS OUGHT TO ENTRUST VERY LARGELY TO THE EXPERIENCED OFFICIALS WHO
SUPERINTEND OUR NATION'S PUBLIC SCHOOLS.  THEY ARE EXPERTS IN SUCH
MATTERS, AND WE ARE NOT.  WE SHOULD HEED MR. JUSTICE JACKSON'S CAVEAT
THAT ANY ATTEMPT BY THIS COURT TO ANNOUNCE CURRICULAR STANDARDS WOULD
BE "TO DECREE A UNIFORM, RIGID AND, IF WE ARE CONSISTENT, AN UNCHANGING
STANDARD FOR COUNTLESS SCHOOL BOARDS REPRESENTING AND SERVING HIGHLY
LOCALIZED GROUPS WHICH NOT ONLY DIFFER FROM EACH OTHER BUT WHICH
THEMSELVES FROM TIME TO TIME CHANGE ATTITUDES."  ILLINOIS EX REL.
MCCOLLUM V. BOARD OF EDUCATION, SUPRA, AT 237. 

WE DO NOT, HOWEVER, IN MY VIEW USURP THE JURISDICTION OF SCHOOL
ADMINISTRATORS BY HOLDING AS WE DO TODAY THAT MORNING DEVOTIONAL
EXERCISES IN ANY FORM ARE CONSTITUTIONALLY INVALID.  BUT THERE IS NO
OCCASION NOW TO GO FURTHER AND ANTICIPATE PROBLEMS WE CANNOT JUDGE WITH
THE MATERIAL NOW BEFORE US. ANY ATTEMPT TO IMPOSE RIGID LIMITS UPON THE
MENTION OF GOD OR REFERENCES TO THE BIBLE IN THE CLASSROOM WOULD BE
FRAUGHT WITH DANGERS.  IF IT SHOULD SOMETIME HEREAFTER BE SHOWN THAT IN
FACT RELIGION CAN PLAY NO PART IN THE TEACHING OF A GIVEN SUBJECT
WITHOUT RESURRECTING THE GHOST OF THE PRACTICES WE STRIKE DOWN TODAY,
IT WILL THEN BE TIME ENOUGH TO CONSIDER QUESTIONS WE MUST NOW DEFER. 
D. UNIFORM TAX EXEMPTIONS INCIDENTALLY AVAILABLE TO RELIGIOUS
INSTITUTIONS.  - NOTHING WE HOLD TODAY QUESTIONS THE PROPRIETY OF
CERTAIN TAX DEDUCTIONS OR EXEMPTIONS WHICH INCIDENTALLY BENEFIT
CHURCHES AND RELIGIOUS INSTITUTIONS, ALONG WITH MANY SECULAR CHARITIES
AND NONPROFIT ORGANIZATIONS.  IF RELIGIOUS INSTITUTIONS BENEFIT, IT IS
IN SPITE OF RATHER THAN BECAUSE OF THEIR RELIGIOUS CHARACTER.  FOR
RELIGIOUS INSTITUTIONS SIMPLY SHARE BENEFITS WHICH GOVERNMENT MAKES
GENERALLY AVAILABLE TO EDUCATIONAL, CHARITABLE, AND ELEEMOSYNARY
GROUPS.  (FN77)  THERE IS NO INDICATION THAT TAXING AUTHORITIES HAVE
USED SUCH BENEFITS IN ANY WAY TO SUBSIDIZE WORSHIP OR FOSTER BELIEF IN
GOD.  AND AS AMONG RELIGIOUS BENEFICIARIES, THE TAX EXEMPTION OR
DEDUCTION CAN BE TRULY NONDISCRIMINATORY, AVAILABLE ON EQUAL TERMS TO
SMALL AS WELL AS LARGE RELIGIOUS BODIES, TO POPULAR AND UNPOPULAR
ACCEPT A BELIEF IN GOD.  (FN78) 

E. RELIGIOUS CONSIDERATIONS IN PUBLIC WELFARE PROGRAMS.  - SINCE
GOVERNMENT MAY NOT SUPPORT OR DIRECTLY AID RELIGIOUS ACTIVITIES WITHOUT
VIOLATING THE ESTABLISHMENT CLAUSE, THERE MIGHT BE SOME DOUBT WHETHER
NONDISCRIMINATORY PROGRAMS OF GOVERNMENTAL AID MAY CONSTITUTIONALLY
INCLUDE INDIVIDUALS WHO BECOME ELIGIBLE WHOLLY OR PARTIALLY FOR
RELIGIOUS REASONS.  FOR EXAMPLE, IT MIGHT BE SUGGESTED THAT WHERE A
STATE PROVIDES UNEMPLOYMENT COMPENSATION GENERALLY TO THOSE WHO ARE
UNABLE TO FIND SUITABLE WORK, IT MAY NOT EXTEND SUCH BENEFITS TO
PERSONS WHO ARE UNEMPLOYED BY REASON OF RELIGIOUS BELIEFS OR PRACTICES
WITHOUT THEREBY ESTABLISHING THE RELIGION TO WHICH THOSE PERSONS
BELONG.  THEREFORE, THE ARGUMENT RUNS, THE STATE MAY AVOID AN
ESTABLISHMENT ONLY BY SINGLING OUT AND EXCLUDING SUCH PERSONS ON THE
GROUND THAT RELIGIOUS BELIEFS OR PRACTICES HAVE MADE THEM POTENTIAL
BENEFICIARIES.  SUCH A CONSTRUCTION WOULD, IT SEEMS TO ME, REQUIRE
GOVERNMENT TO IMPOSE RELIGIOUS DISCRIMINATIONS AND DISABILITIES,
THEREBY JEOPARDIZING THE FREE EXERCISE OF RELIGION, IN ORDER TO AVOID
WHAT IS THOUGHT TO CONSTITUTE AN ESTABLISHMENT. 

THE INESCAPABLE FLAW IN THE ARGUMENT, I SUGGEST, IS ITS QUITE
UNREALISTIC VIEW OF THE AIMS OF THE ESTABLISHMENT CLAUSE.  THE FRAMERS
WERE NOT CONCERNED WITH THE EFFECTS OF CERTAIN INCIDENTAL AIDS TO
INDIVIDUAL WORSHIPPERS WHICH COME ABOUT AS BY-PRODUCTS OF GENERAL AND
NONDISCRIMINATORY WELFARE PROGRAMS.  IF SUCH BENEFITS SERVE TO MAKE
EASIER OR LESS EXPENSIVE THE PRACTICE OF A PARTICULAR CREED, OR OF ALL
RELIGIONS, IT CAN HARDLY BE SAID THAT THE PURPOSE OF THE PROGRAM IS IN
ANY WAY RELIGIOUS, OR THAT THE CONSEQUENCE OF ITS NONDISCRIMINATORY
APPLICATION IS TO CREATE THE FORBIDDEN DEGREE OF INTERDEPENDENCE
BETWEEN SECULAR AND SECTARIAN INSTITUTIONS.  I CANNOT THEREFORE ACCEPT
THE SUGGESTION, WHICH SEEMS TO ME IMPLICIT IN THE ARGUMENT OUTLINED
HERE, THAT EVERY JUDICIAL OR ADMINISTRATIVE CONSTRUCTION WHICH IS
DESIGNED TO PREVENT A PUBLIC WELFARE PROGRAM FROM ABRIDGING THE FREE
EXERCISE OF RELIGIOUS BELIEFS, IS FOR THAT REASON IPSO FACTO AN
ESTABLISHMENT OF RELIGION. 

F. ACTIVITIES WHICH, THOUGH RELIGIOUS IN ORIGIN, HAVE CEASED TO HAVE
RELIGIOUS MEANING.  - AS WE NOTED IN OUR SUNDAY LAW DECISIONS, NEARLY
EVERY CRIMINAL LAW ON THE BOOKS CAN BE TRACED TO SOME RELIGIOUS
PRINCIPLE OR INSPIRATION.  BUT THAT DOES NOT MAKE THE PRESENT
ENFORCEMENT OF THE CRIMINAL LAW IN ANY SENSE AN ESTABLISHMENT OF
RELIGION, SIMPLY BECAUSE IT ACCORDS WITH WIDELY HELD RELIGIOUS
PRINCIPLES.  AS WE SAID IN MCGOWAN V. MARYLAND, 366 U.S. 420, 442, "THE
'ESTABLISHMENT' CLAUSE DOES NOT BAN FEDERAL OR STATE REGULATION OF
CONDUCT WHOSE REASON OR EFFECT MERELY HAPPENS TO COINCIDE OR HARMONIZE
WITH THE TENETS OF SOME OR ALL RELIGIONS."  THIS RATIONALE SUGGESTS
THAT THE USE OF THE MOTTO "IN GOD WE TRUST" ON CURRENCY, ON DOCUMENTS
AND PUBLIC BUILDINGS AND THE LIKE MAY NOT OFFEND THE CLAUSE.  IT IS NOT
THAT THE USE OF THOSE FOUR WORDS CAN BE DISMISSED AS "DE MINIMIS" - FOR
I SUSPECT THERE WOULD BE INTENSE OPPOSITION TO THE ABANDONMENT OF THAT
MOTTO.  THE TRUTH IS THAT WE HAVE SIMPLY INTERWOVEN THE MOTTO SO DEEPLY
INTO THE FABRIC OF OUR CIVIL POLITY THAT ITS PRESENT USE MAY WELL NOT
PRESENT THAT TYPE OF INVOLVEMENT WHICH THE FIRST AMENDMENT PROHIBITS. 

THIS GENERAL PRINCIPLE MIGHT ALSO SERVE TO INSULATE THE VARIOUS
PATRIOTIC EXERCISES AND ACTIVITIES USED IN THE PUBLIC SCHOOLS AND
ELSEWHERE WHICH, WHATEVER MAY HAVE BEEN THEIR ORIGINS, NO LONGER HAVE A
RELIGIOUS PURPOSE OR MEANING.  THE REFERENCE TO DIVINITY IN THE REVISED
PLEDGE OF ALLEGIANCE, FOR EXAMPLE, MAY MERELY RECOGNIZE THE HISTORICAL
FACT THAT OUR NATION WAS BELIEVED TO HAVE BEEN FOUNDED "UNDER GOD." 
THUS RECITING THE PLEDGE MAY BE NO MORE OF A RELIGIOUS EXERCISE THAN
THE READING ALOUD OF LINCOLN'S GETTYSBURG ADDRESS, WHICH CONTAINS AN
ALLUSION TO THE SAME HISTORICAL FACT. 

THE PRINCIPLES WHICH WE REAFFIRM AND APPLY TODAY CAN HARDLY BE
THOUGHT NOVEL OR RADICAL.  THEY ARE, IN TRUTH, AS OLD AS THE REPUBLIC
ITSELF, AND HAVE ALWAYS BEEN AS INTEGRAL A PART OF THE FIRST AMENDMENT
AS THE VERY WORDS OF THAT CHARTER OF RELIGIOUS LIBERTY.  NO LESS
APPLICABLE TODAY THAN THEY WERE WHEN FIRST PRONOUNCED A CENTURY AGO,
ONE YEAR AFTER THE VERY FIRST COURT DECISION INVOLVING RELIGIOUS
EXERCISES IN THE PUBLIC SCHOOLS, ARE THE WORDS OF A DISTINGUISHED CHIEF
JUSTICE OF THE COMMONWEALTH OF PENNSYLVANIA, JEREMIAH S. BLACK: 

"THE MANIFEST OBJECT OF THE MEN WHO FRAMED THE INSTITUTIONS OF THIS
COUNTRY, WAS TO HAVE A STATE WITHOUT RELIGION, AND A CHURCH WITHOUT
POLITICS - THAT IS TO SAY, THEY MEANT THAT ONE SHOULD NEVER BE USED AS
AN ENGINE FOR ANY PURPOSE OF THE OTHER, AND THAT NO MAN'S RIGHTS IN ONE
SHOULD BE TESTED BY HIS OPINIONS ABOUT THE OTHER.  AS THE CHURCH TAKES
NO NOTE OF MEN'S POLITICAL DIFFERENCES, SO THE STATE LOOKS WITH EQUAL
EYE ON ALL MODES OF RELIGIOUS FAITH ...  .  OUR FATHERS SEEM TO HAVE
BEEN PERFECTLY SINCERE IN THEIR BELIEF THAT THE MEMBERS OF THE CHURCH
WOULD BE MORE PATRIOTIC, AND THE CITIZENS OF THE STATE MORE RELIGIOUS,
BY KEEPING THEIR RESPECTIVE FUNCTIONS ENTIRELY SEPARATE."  ESSAY ON
RELIGIOUS LIBERTY, IN BLACK, ED., ESSAYS AND SPEECHES OF JEREMIAH S.
BLACK (1886), 53. 

FN1  LOCKE, A LETTER CONCERNING TOLERATION, IN 35 GREAT BOOKS OF THE
WESTERN WORLD (HUTCHINS ED. 1952), 2. 

FN2  REPRESENTATIVE DANIEL CARROLL OF MARYLAND DURING DEBATE UPON THE
PROPOSED BILL OF RIGHTS IN THE FIRST CONGRESS, AUGUST 15, 1789, I
ANNALS OF CONG. 730. 

FN3  SEE HEALEY, JEFFERSON ON RELIGION IN PUBLIC EDUCATION (1962);
BOLES, THE BIBLE, RELIGION, AND THE PUBLIC SCHOOLS (1961), 16-21;
BUTTS, THE AMERICAN TRADITION IN RELIGION AND EDUCATION (1950), 119
130; CAHN, ON GOVERNMENT AND PRAYER, 37 N.Y.U.L. REV. 981 (1962);
COSTANZO, THOMAS JEFFERSON, RELIGIOUS EDUCATION AND PUBLIC LAW, 8 J.
PUB. LAW 81 (1959); COMMENT, THE SUPREME COURT, THE FIRST AMENDMENT,
AND RELIGION IN THE PUBLIC SCHOOLS, 63 COL. L. REV. 73, 79-83 (1963). 

FN4  JEFFERSON'S CAVEAT WAS IN FULL: 

"INSTEAD, THEREFORE, OF PUTTING THE BIBLE AND TESTAMENT INTO THE
HANDS OF THE CHILDREN AT AN AGE WHEN THEIR JUDGMENTS ARE NOT
SUFFICIENTLY MATURED FOR RELIGIOUS INQUIRIES, THEIR MEMORIES MAY HERE
BE STORED WITH THE MOST USEFUL FACTS FROM GRECIAN, ROMAN, EUROPEAN AND
AMERICAN HISTORY."  2 WRITINGS OF THOMAS JEFFERSON (MEMORIAL ED. 1903),
204. 

COMPARE JEFFERSON'S LETTER TO HIS NEPHEW, PETER CARR, WHEN THE LATTER
WAS ABOUT TO BEGIN THE STUDY OF LAW, IN WHICH JEFFERSON OUTLINED A
SUGGESTED COURSE OF PRIVATE STUDY OF RELIGION SINCE "YOUR REASON IS NOW
MATURE ENOUGH TO EXAMINE THIS OBJECT."  LETTER TO PETER CARR, AUGUST
10, 1787, IN PADOVER, THE COMPLETE JEFFERSON (1943), 1058.  JEFFERSON
SEEMS TO HAVE OPPOSED SECTARIAN INSTRUCTION AT ANY LEVEL OF PUBLIC
EDUCATION, SEE HEALEY, JEFFERSON ON RELIGION IN PUBLIC EDUCATION
(1962), 206-210, 256, 264-265.  THE ABSENCE OF ANY MENTION OF RELIGIOUS
INSTRUCTION IN THE PROJECTED ELEMENTARY AND SECONDARY SCHOOLS CONTRASTS
SIGNIFICANTLY WITH JEFFERSON'S QUITE EXPLICIT PROPOSALS CONCERNING
RELIGIOUS INSTRUCTION AT THE UNIVERSITY OF VIRGINIA.  HIS DRAFT FOR "A
BILL FOR THE MORE GENERAL DIFFUSION OF KNOWLEDGE" IN 1779, FOR EXAMPLE,
OUTLINED IN SOME DETAIL THE SECULAR CURRICULUM FOR THE PUBLIC SCHOOLS,
WHILE AVOIDING ANY REFERENCES TO RELIGIOUS STUDIES.  SEE PADOVER,
SUPRA, AT 1048-1054.  THE LATER DRAFT OF AN "ACT FOR ESTABLISHING
ELEMENTARY SCHOOLS" WHICH JEFFERSON SUBMITTED TO THE VIRGINIA GENERAL
ASSEMBLY IN 1817 PROVIDED THAT "NO RELIGIOUS READING, INSTRUCTION OR
EXERCISE, SHALL BE PRESCRIBED OR PRACTICED INCONSISTENT WITH THE TENETS
OF ANY RELIGIOUS SECT OR DENOMINATION."  PADOVER, SUPRA, AT 1076. 
RELIANCE UPON JEFFERSON'S APPARENT WILLINGNESS TO PERMIT CERTAIN
RELIGIOUS INSTRUCTION AT THE UNIVERSITY SEEMS, THEREFORE, TO LEND
LITTLE SUPPORT TO SUCH INSTRUCTION IN THE ELEMENTARY AND SECONDARY
SCHOOLS.  COMPARE, E.G., CORWIN, A CONSTITUTION OF POWERS IN A SECULAR
STATE (1951), 104-106; COSTANZO, THOMAS JEFFERSON, RELIGIOUS EDUCATION
AND PUBLIC LAW, 8 J. PUB. LAW 81, 100-106 (1959). 

FN5  CF. MR. JUSTICE RUTLEDGE'S OBSERVATIONS IN EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1, 53-54 (DISSENTING OPINION).  SEE ALSO FELLMAN,
SEPARATION OF CHURCH AND STATE IN THE UNITED STATES:  A SUMMARY VIEW,
1950 WIS. L. REV. 427, 428-429; ROSENFIELD, SEPARATION OF CHURCH AND
STATE IN THE PUBLIC SCHOOLS, 22 U. OF PITT.  L. REV. 561, 569 (1961);
MACKINNON, FREEDOM?  - OR TOLERATION?  THE PROBLEM OF CHURCH AND STATE
IN THE UNITED STATES, (1959) PUB. LAW 374.  ONE AUTHOR HAS SUGGESTED
THESE REASONS FOR CAUTIOUS APPLICATION OF THE HISTORY OF THE
CONSTITUTION'S RELIGIOUS GUARANGEES TO CONTEMPORARY PROBLEMS: 

"FIRST, THE BREVITY OF CONGRESSIONAL DEBATE AND THE LACK OF WRITINGS
ON THE QUESTION BY THE FRAMERS MAKE ANY HISTORICAL ARGUMENT
INCONCLUSIVE AND OPEN TO SERIOUS QUESTION.  SECOND, THE AMENDMENT WAS
DESIGNED TO OUTLAW PRACTICES WHICH HAD EXISTED BEFORE ITS WRITING, BUT
THERE IS NO AUTHORITATIVE DECLARATION OF THE SPECIFIC PRACTICES AT
WHICH IT WAS AIMED.  AND THIRD, MOST OF THE MODERN RELIGIOUS-FREEDOM
CASES TURN ON ISSUES WHICH WERE AT MOST ACADEMIC IN 1789 AND PERHAPS
DID NOT EXIST AT ALL.  PUBLIC EDUCATION WAS ALMOST NONEXISTENT IN 1789,
AND THE QUESTION OF RELIGIOUS EDUCATION IN PUBLIC SCHOOLS MAY NOT HAVE
BEEN FORESEEN."  BETH, THE AMERICAN THEORY OF CHURCH AND STATE (1958),
88. 

FN6  SEE GENERALLY, FOR DISCUSSION OF THE EARLY EFFORTS FOR
DISESTABLISHMENT OF THE ESTABLISHED COLONIAL CHURCHES, AND OF THE
CONDITIONS AGAINST WHICH THE PROPONENTS OF SEPARATION OF CHURCH AND
STATE CONTENDED, SWEET, THE STORY OF RELIGION IN AMERICA (1950), C.
XIII; COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA (1902), C. IX;
ECKENRODE, SEPARATION OF CHURCH AND STATE IN VIRGINIA (1910); BRANT,
JAMES MADISON - THE NATIONALIST, 1780-1787 (1948), C. XXII; BOWERS, THE
YOUNG JEFFERSON (1945), 193-199; BUTTS, THE AMERICAN TRADITION IN
RELIGION AND EDUCATION (1950), C. II; KRUSE, THE HISTORICAL MEANING AND
JUDICIAL CONSTRUCTION OF THE ESTABLISHMENT OF RELIGION CLAUSE OF THE
FIRST AMENDMENT, 2 WASHBURN L.J. 65, 79-83 (1962).  COMPARE ALSO
ALEXANDER HAMILTON'S CONCEPTION OF "THE CHARACTERISTIC DIFFERENCE
BETWEEN A TOLERATED AND ESTABLISHED RELIGION" AND HIS GROUNDS OF
OPPOSITION TO THE LATTER, IN HIS REMARKS ON THE QUEBEC BILL IN 1775, 2
WORKS OF ALEXANDER HAMILTON (HAMILTON ED. 1850), 133-138.  COMPARE, FOR
THE VIEW THAT CONTEMPORARY EVIDENCE REVEALS A DESIGN OF THE FRAMERS TO
FORBID NOT ONLY FORMAL ESTABLISHMENT OF CHURCHES, BUT VARIOUS FORMS OF
INCIDENTAL AID TO OR SUPPORT OF RELIGION, LARDNER, HOW FAR DOES THE
CONSTITUTION SEPARATE CHURCH AND STATE?  45 AM. POL.  SCI.  REV. 110,
112-115 (1951). 

FN7  THE ORIGINS OF THE MODERN MOVEMENT FOR FREE STATE-SUPPORTED
EDUCATION CANNOT BE FIXED WITH PRECISION.  IN ENGLAND, THE LEVELLERS
UNAVAILINGLY URGED IN THEIR PLATFORM OF 1649 THE ESTABLISHMENT OF FREE
PRIMARY EDUCATION FOR ALL, OR AT LEAST FOR BOYS.  SEE BRAILSFORD, THE
LEVELLERS AND THE ENGLISH REVOLUTION (1961), 534.  IN THE NORTH
AMERICAN COLONIES, EDUCATION WAS ALMOST WITHOUT EXCEPTION UNDER PRIVATE
SPONSORSHIP AND SUPERVISION, FREQUENTLY UNDER CONTROL OF THE DOMINANT
PROTESTANT SECTS.  THIS CONDITION PREVAILED AFTER THE REVOLUTION AND
INTO THE FIRST QUARTER OF THE NINETEENTH CENTURY.  SEE GENERALLY MASON,
MORAL VALUES AND SECULAR EDUCATION (1950), C. II; THAYER, THE ROLE OF
THE SCHOOL IN AMERICAN SOCIETY (1960), C. X; GREENE, RELIGION AND THE
STATE: THE MAKING AND TESTING OF AN AMERICAN TRADITION (1941), 120
122.  THUS, VIRGINIA'S COLONIAL GOVERNOR BERKELEY EXCLAIMED IN 1671: "I
THANK GOD THERE ARE NO FREE SCHOOLS NOR PRINTING, AND I HOPE WE SHALL
NOT HAVE THEM THESE HUNDRED YEARS; FOR LEARNING HAS BROUGHT
DISOBEDIENCE, AND HERESY, AND SECTS INTO THE WORLD  ...  ."  BATES,
RELIGIOUS LIBERTY: AN INQUIRY (1945), 327. 

THE EXCLUSIVELY PRIVATE CONTROL OF AMERICAN EDUCATION DID NOT,
HOWEVER, QUITE SURVIVE BERKELEY'S EXPECTATIONS.  BENJAMIN FRANKLIN'S
PROPOSALS IN 1749 FOR A PHILADELPHIA ACADEMY HERALDED THE DAWN OF
PUBLICLY SUPPORTED SECONDARY EDUCATION, ALTHOUGH THE PROPOSAL DID NOT
BEAR IMMEDIATE FRUIT.  SEE JOHNSON AND YOST, SEPARATION OF CHURCH AND
STATE IN THE UNITED STATES (1948), 26-27.  JEFFERSON'S ELABORATE PLANS
FOR A PUBLIC SCHOOL SYSTEM IN VIRGINIA CAME TO NAUGHT AFTER THE DEFEAT
IN 1796 OF HIS PROPOSED ELEMENTARY SCHOOL BILL, WHICH FOUND LITTLE
FAVOR AMONG THE WEALTHIER LEGISLATORS.  SEE BOWERS, THE YOUNG JEFFERSON
(1945), 182-186.  IT WAS NOT UNTIL THE 1820'S AND 1830'S, UNDER THE
IMPETUS OF JACKSONIAN DEMOCRACY, THAT A SYSTEM OF PUBLIC EDUCATION
REALLY TOOK ROOT IN THE UNITED STATES.  SEE 1 BEARD, THE RISE OF
AMERICAN CIVILIZATION (1937), 810-818.  ONE FORCE BEHIND THE
DEVELOPMENT OF SECULAR PUBLIC SCHOOLS MAY HAVE BEEN A GROWING
DISSATISFACTION WITH THE TIGHTLY SECTARIAN CONTROL OVER PRIVATE
EDUCATION, SEE HARNER, RELIGION'S PLACE IN GENERAL EDUCATION (1949), 29
30.  YET THE BURGEONING PUBLIC SCHOOL SYSTEMS DID NOT IMMEDIATELY
SUPPLANT THE OLD SECTARIAN AND PRIVATE INSTITUTIONS; ALEXIS DE
TOCQUEVILLE, FOR EXAMPLE, REMARKED AFTER HIS TOUR OF THE EASTERN STATES
IN 1831 THAT "ALMOST ALL EDUCATION IS ENTRUSTED TO THE CLERGY."  1
DEMOCRACY IN AMERICA (BRADLEY ED. 1945) 309, N. 4.  AND COMPARE LORD
BRYCE'S OBSERVATIONS, A HALF CENTURY LATER, ON THE STILL LARGELY
DENOMINATIONAL CHARACTER OF AMERICAN HIGHER EDUCATION, 2 THE AMERICAN
COMMONWEALTH (1933), 734-735.    EFFORTS TO KEEP THE PUBLIC SCHOOLS OF
THE EARLY NINETEENTH CENTURY FREE FROM SECTARIAN INFLUENCE WERE OF TWO
KINDS.  ONE TOOK THE FORM OF CONSTITUTIONAL PROVISIONS AND STATUTES
ADOPTED BY A NUMBER OF STATES FORBIDDING APPROPRIATIONS FROM THE PUBLIC
TREASURY FOR THE SUPPORT OF RELIGIOUS INSTRUCTION IN ANY MANNER.  SEE
MOEHLMAN, THE WALL OF SEPARATION BETWEEN CHURCH AND STATE (1951), 132
135; LARDNER, HOW FAR DOES THE CONSTITUTION SEPARATE CHURCH AND STATE? 
45 AM. POL.  SCI.  REV. 110, 122 (1951).  THE OTHER TOOK THE FORM OF
MEASURES DIRECTED AGAINST THE USE OF SECTARIAN READING AND TEACHING
MATERIALS IN THE SCHOOLS.  THE TEXTS USED IN THE EARLIEST PUBLIC
SCHOOLS HAD BEEN LARGELY TAKEN OVER FROM THE PRIVATE ACADEMIES, AND
RETAINED A STRONGLY RELIGIOUS CHARACTER AND CONTENT.  SEE NICHOLS,
RELIGION AND AMERICAN DEMOCRACY (1959), 64-80; KINNEY, CHURCH AND
STATE, THE STRUGGLE FOR SEPARATION IN NEW HAMPSHIRE, 1630-1900 (1955),
150-153.  IN 1827, HOWEVER, MASSACHUSETTS ENACTED A STATUTE PROVIDING
THAT SCHOOL BOARDS MIGHT NOT THEREAFTER "DIRECT ANY SCHOOL BOOKS TO BE
PURCHASES OR USED, IN ANY OF THE SCHOOLS  ...  WHICH ARE CALCULATED TO
FAVOUR ANY PARTICULAR RELIGIOUS SECT OR TENET."  2 STOKES, CHURCH AND
STATE IN THE UNITED STATES (1950), 53.  FOR FURTHER DISCUSSION OF THE
BACKGROUND OF THE MASSACHUSETTS LAW AND DIFFICULTIES IN ITS EARLY
APPLICATION, SEE DUNN, WHAT HAPPENED TO RELIGIOUS EDUCATION?  (1958),
C. IV.  AS OTHER STATES FOLLOWED THE EXAMPLE OF MASSACHUSETTS, THE USE
OF SECTARIAN TEXTS WAS IN TIME AS WIDELY PROHIBITED AS THE
APPROPRIATION OF PUBLIC FUNDS FOR RELIGIOUS INSTRUCTION. 

CONCERNING THE EVOLUTION OF THE AMERICAN PUBLIC SCHOOL SYSTEMS FREE
OF SECTARIAN INFLUENCE, COMPARE MR. JUSTICE FRANKFURTER'S ACCOUNT: 

"IT IS PERTINENT TO REMIND THAT THE ESTABLISHMENT OF THIS PRINCIPLE
OF SEPARATION IN THE FIELD OF EDUCATION WAS NOT DUE TO ANY DECLINE IN
THE RELIGIOUS BELIEFS OF THE PEOPLE.  HORACE MANN WAS A DEVOUT
CHRISTIAN, AND THE DEEP RELIGIOUS FEELING OF JAMES MADISON IS STAMPED
UPON THE REMONSTRANCE.  THE SECULAR PUBLIC SCHOOL DID NOT IMPLY
INDIFFERENCE TO THE BASIC ROLE OF RELIGION IN THE LIFE OF THE PEOPLE,
NOR REJECTION OF RELIGIOUS EDUCATION AS A MEANS OF FOSTERING IT.  THE
CLAIMS OF RELIGION WERE NOT MINIMIZED BY REFUSING TO MAKE THE PUBLIC
SCHOOLS AGENCIES FOR THEIR ASSERTION.  THE NON-SECTARIAN OR SECULAR
PUBLIC SCHOOL WAS THE MEANS OF RECONCILING FREEDOM IN GENERAL WITH
RELIGIOUS FREEDOM.  THE SHARP CONFINEMENT OF THE PUBLIC SCHOOLS TO
SECULAR EDUCATION WAS A RECOGNITION OF THE NEED OF A DEMOCRATIC SOCIETY
TO EDUCATE ITS CHILDREN, INSOFAR AS THE STATE UNDERTOOK TO DO SO, IN AN
ATMOSPHERE FREE FROM PRESSURES IN A REALM IN WHICH PRESSURES ARE MOST
RESISTED AND WHERE CONFLICTS ARE MOST EASILY AND MOST BITTERLY
ENGENDERED."  ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION, 333 U.S.
203, 216. 

FN8  THE COMPARATIVE RELIGIOUS HOMOGENEITY OF THE UNITED STATES AT
THE TIME THE BILL OF RIGHTS WAS ADOPTED HAS BEEN CONSIDERED IN HALLER,
THE PURITAN BACKGROUND OF THE FIRST AMENDMENT, IN READ ED., THE
CONSTITUTION RECONSIDERED (1938), 131, 133-134; BETH, THE AMERICAN
THEORY OF CHURCH AND STATE (1958), 74; KINNEY, CHURCH AND STATE, THE
STRUGGLE FOR SEPARATION IN NEW HAMPSHIRE, 1630-1900 (1955), 155-161. 
HOWEVER, MADISON SUGGESTED IN THE FIFTY-FIRST FEDERALIST THAT THE
RELIGIOUS DIVERSITY WHICH EXISTED AT THE TIME OF THE CONSTITUTIONAL
CONVENTION CONSTITUTED A SOURCE OF STRENGTH FOR RELIGIOUS FREEDOM, MUCH
AS THE MULTIPLICITY OF ECONOMIC AND POLITICAL INTERESTS ENHANCED THE
SECURITY OF OTHER CIVIL RIGHTS.  THE FEDERALIST (COOKE ED. 1961), 351
352. 

FN9  SEE COMMENT, THE POWER OF COURTS OVER THE INTERNAL AFFAIRS OF
RELIGIOUS GROUPS, 43 CALIF. L. REV. 322 (1955); COMMENT, JUDICIAL
INTERVENTION IN DISPUTES WITHIN INDEPENDENT CHURCH BODIES, 54 MICH. L.
REV. 102 (1955); NOTE, JUDICIAL INTERVENTION IN DISPUTES OVER THE USE
OF CHURCH PROPERTY, 75 HARV. L. REV. 1142 (1962).  COMPARE VIDAL V.
GIRARD'S EXECUTORS, 2 HOW.  127.  THE PRINCIPLE OF JUDICIAL
NONINTERVENTION IN ESSENTIALLY RELIGIOUS DISPUTES APPEARS TO HAVE BEEN
REFLECTED IN THE DECISIONS OF SEVERAL STATE COURTS DECLINING TO ENFORCE
ESSENTIALLY PRIVATE AGREEMENTS CONCERNING THE RELIGIOUS EDUCATION AND
WORSHIP OF CHILDREN OF SEPARATED OR DIVORCED PARENTS.  SEE, E.G.,
HACKETT V. HACKETT, 78 OHIO ABS.  485, 150 N.E.2D 431; STANTON V.
STANTON, 213 GA. 545, 100 S.E.2D 289; FRIEDMAN, THE PARENTAL RIGHT TO
CONTROL THE RELIGIOUS EDUCATION OF A CHILD, 29 HARV. L. REV. 485
(1916); 72 HARV. L. REV. 372 (1958); NOTE, 10 WEST.  RES.  L. REV. 171
(1959). 

GOVERNMENTAL NONINTERVENTION IN RELIGIOUS AFFAIRS AND INSTITUTIONS
SEEMS ASSURED BY ARTICLE 26 OF THE CONSTITUTION OF INDIA, WHICH
PROVIDES: 

"SUBJECT TO PUBLIC ORDER, MORALITY AND HEALTH, EVERY RELIGIOUS
DENOMINATION OR ANY SECTION THEREOF SHALL HAVE THE RIGHT: 

"(A) TO ESTABLISH AND MAINTAIN INSTITUTIONS FOR RELIGIOUS AND
CHARITABLE PURPOSES: 

"(B) TO MANAGE ITS OWN AFFAIRS IN MATTERS OF RELIGION: 

"(C)  TO OWN AND ACQUIRE MOVABLE AND IMMOVABLE PROPERTY; AND: 

"(D) TO ADMINISTER SUCH PROPERTY IN ACCORDANCE WITH LAW."  SEE 1
CHAUDHRI, CONSTITUTIONAL RIGHTS AND LIMITATIONS (1955), 875.  THIS
ARTICLE DOES NOT, HOWEVER, APPEAR TO HAVE COMPLETELY FORECLOSED
JUDICIAL INQUIRY INTO THE MERITS OF INTRADENOMINATIONAL DISPUTES.  SEE
GLEDHILL, FUNDAMENTAL RIGHTS IN INDIA (1955), 101-102. 

FN10  FOR A DISCUSSION OF THE DIFFICULTIES INHERENT IN THE BALLARD
CASE, SEE KURLAND, RELIGION AND THE LAW (1962), 75-79.  THIS COURT
EVENTUALLY REVERSED THE CONVICTIONS ON THE QUITE UNRELATED GROUND THAT
WOMEN HAD BEEN SYSTEMATICALLY EXCLUDED FROM THE JURY, BALLARD V. UNITED
STATES, 329 U.S. 187.  FOR DISCUSSIONS OF THE DIFFICULTIES IN
INTERPRETING AND APPLYING THE FIRST AMENDMENT SO AS TO FOSTER THE
OBJECTIVE OF NEUTRALITY WITHOUT HOSTILITY, SEE, E.G., KATZ, FREEDOM OF
RELIGION AND STATE NEUTRALITY, 20 U. OF CHI.  L. REV. 426, 438 (1953);
KAUPER, CHURCH, STATE, AND FREEDOM: A REVIEW, 52 MICH. L. REV. 829, 842
(1954).  COMPARE, FOR AN INTERESTING APPARENT ATTEMPT TO AVOID THE
BALLARD PROBLEM AT THE INTERNATIONAL LEVEL, ARTICLE 3 OF THE
MULTILATERAL TREATY BETWEEN THE UNITED STATES AND CERTAIN AMERICAN
REPUBLICS, WHICH PROVIDES THAT EXTRADITION WILL NOT BE GRANTED, INTER
ALIA, WHEN "THE OFFENSE IS  ...  DIRECTED AGAINST RELIGION."  BLAKELY,
AMERICAN STATE PAPERS AND RELATED DOCUMENTS ON FREEDOM IN RELIGION (4TH
REV. ED. 1949), 316. 

FN11  SEE KURLAND, RELIGION AND THE LAW (1962), 32-34. 

FN12  COMPARE THE TREATMENT OF AN APPARENTLY VERY SIMILAR PROBLEM IN
ARTICLE 28 OF THE CONSTITUTION OF INDIA: 

"(1) NO RELIGIOUS INSTRUCTION SHALL BE PROVIDED IN ANY EDUCATIONAL
INSTITUTION WHOLLY MAINTAINED OUT OF STATE FUNDS. 

"(2) NOTHING IN CLAUSE (1) SHALL APPLY TO AN EDUCATIONAL INSTITUTION
WHICH IS ADMINISTERED BY THE STATE BUT HAS BEEN ESTABLISHED UNDER ANY
ENDOWMENT OR TRUST WHICH REQUIRES THAT RELIGIOUS INSTRUCTION SHALL BE
IMPARTED IN SUCH INSTITUTION."  1 CHAUDHRI, CONSTITUTIONAL RIGHTS AND
LIMITATIONS (1955), 875-876, 939. 

FN13  SEE KURLAND, RELIGION AND THE LAW (1962), 28-31; FELLMAN,
SEPARATION OF CHURCH AND STATE IN THE UNITED STATES: A SUMMARY VIEW,
1950 WIS. L. REV. 427, 442. 

FN14  THIS DISTINCTION, IMPLICIT IN THE FIRST AMENDMENT, HAD BEEN
MADE EXPLICIT IN THE ORIGINAL VIRGINIA BILL OF RIGHTS PROVISION THAT
"ALL MEN SHOULD ENJOY THE FULLEST TOLERATION IN THE EXERCISE OF
RELIGION ACCORDING TO THE DICTATES OF CONSCIENCE, UNPUNISHED AND
UNRESTRAINED BY THE MAGISTRATE, UNLESS UNDER COLOR OF RELIGION ANY MAN
DISTURB THE PEACE, THE HAPPINESS, OR SAFETY OF SOCIETY."  SEE COBB, THE
RISE OF RELIGIOUS LIBERTY IN AMERICA (1902), 491.  CONCERNING VARIOUS
LEGISLATIVE LIMITATIONS AND RESTRAINTS UPON RELIGIOUSLY MOTIVATED
BEHAVIOR WHICH ENDANGERS OR OFFENDS SOCIETY, SEE MANWARING, RENDER UNTO
CAESER: THE FLAG-SALUTE CONTROVERSY (1962), 41-52.  VARIOUS COURTS HAVE
APPLIED THIS PRINCIPLE TO PROSCRIBE CERTAIN RELIGIOUS EXERCISES OR
ACTIVITIES WHICH WERE THOUGHT TO THREATEN THE SAFETY OR MORALS OF THE
PARTICIPANTS OR THE REST OF THE COMMUNITY, E.G., STATE V. MASSEY, 229
N.C. 734, 51 S.E.2D 179; HARDEN V. STATE, 188 TENN. 17, 216 S.W.2D 708;
LAWSON V. COMMONWEALTH, 291 KY. 437, 164 S.W.2D 972; CF. SWEENEY V.
WEBB, 33 TEX. CIV. APP. 324, 76 S.W. 766. 

THAT THE PRINCIPLE OF THESE CASES, AND THE DISTINCTION BETWEEN BELIEF
AND BEHAVIOR, ARE SUSCEPTIBLE OF PERVERSE APPLICATION, MAY BE SUGGESTED
BY OLIVER CROMWELL'S MANDATE TO THE BESIEGED CATHOLIC COMMUNITY IN
IRELAND: 

"AS TO FREEDOM OF CONSCIENCE, I MEDDLE WITH NO MAN'S CONSCIENCE; BUT
IF YOU MEAN BY THAT, LIBERTY TO CELEBRATE THE MASS, I WOULD HAVE YOU
UNDERSTAND THAT IN NO PLACE WHERE THE POWER OF THE PARLIAMENT OF
ENGLAND PREVAILS SHALL THAT BE PERMITTED."  QUOTED IN HOOK, THE
PARADOXES OF FREEDOM (1962), 23. 

FN15  WITH RESPECT TO THE DECISION IN HAMILTON V. REGENTS, COMPARE
TWO RECENT COMMENTS:  KURLAND, RELIGION AND THE LAW (1962), 40; AND
FRENCH, COMMENT, UNCONSTITUTIONAL CONDITIONS: AN ANALYSIS, 50 GEO. L.J.
234, 246 (1961). 

FN16  SEE GENERALLY AS TO THE BACKGROUND AND HISTORY OF THE BARNETTE
CASE, MANWARING, RENDER UNTO CAESAR: THE FLAG-SALUTE CONTROVERSY
(1962), ESPECIALLY AT 252-253.  COMPARE, FOR THE INTERESTING TREATMENT
OF A PROBLEM SIMILAR TO THAT OF BARNETTE, IN A NONCONSTITUTIONAL
CONTEXT, CHABOT V. LES COMMISSAIRES D'ECOLES DE LAMORANDIERE, (1957)
QUE.  B.R. 707, NOTED IN 4 MCGILL L.J. 268 (1958). 

FN17  SEE BARRON V. BALTIMORE, 7 PET. 243; PERMOLI V. NEW ORLEANS, 3
HOW.  589, 609; CF.  FOX V. OHIO, 5 HOW.  410, 434-435; WITHERS V.
BUCKLEY, 20 HOW.  84, 89-91.  AS EARLY AS 1825, HOWEVER, AT LEAST ONE
COMMENTATOR ARGUED THAT THE GUARANTEES OF THE BILL OF RIGHTS, EXCEPTING
ONLY THOSE OF THE FIRST AND SEVENTH AMENDMENTS, WERE MEANT TO LIMIT THE
POWERS OF THE STATES.  RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED
STATES OF AMERICA (1825), 120-130. 

FN18  IN ADDITION TO THE STATEMENT OF THIS COURT IN MEYER, AT LEAST
ONE STATE COURT ASSUMED AS EARLY AS 1921 THAT CLAIMS OF ABRIDGMENT OF
THE FREE EXERCISE OF RELIGION IN THE PUBLIC SCHOOLS MUST BE TESTED
UNDER THE GUARANTEES OF THE FIRST AMENDMENT AS WELL AS THOSE OF THE
STATE CONSTITUTION.  HARDWICK V. BOARD OF SCHOOL TRUSTEES, 54 CAL. APP.
696, 704-705, 205 P. 49, 52.  SEE LOUISELL AND JACKSON, RELIGION,
THEOLOGY, AND PUBLIC HIGHER EDUCATION, 50 CAL. L. REV. 751, 772
(1962).  EVEN BEFORE THE FOURTEENTH AMENDMENT, NEW YORK STATE ENACTED A
GENERAL COMMON SCHOOL LAW IN 1844 WHICH PROVIDED THAT NO RELIGIOUS
INSTRUCTION SHOULD BE GIVEN WHICH COULD BE CONSTRUED TO VIOLATE THE
RIGHTS OF CONSCIENCE "AS SECURED BY THE CONSTITUTION OF THIS STATE AND
THE UNITED STATES."  N.Y. LAWS, 1844, C. 320, SEC. 12. 

FN19  SEE, E.G., SNEE, RELIGIOUS DISESTABLISHMENT AND THE FOURTEENTH
AMENDMENT, 1954 WASH. U.L.Q. 371, 373-394; KRUSE, THE HISTORICAL
MEANING AND JUDICIAL CONSTRUCTION OF THE ESTABLISHMENT OF RELIGION
CLAUSE OF THE FIRST AMENDMENT, 2 WASHBURN L.J. 65, 84-85, 127-130
(1962); KATZ, RELIGION AND AMERICAN CONSTITUTIONS, ADDRESS AT
NORTHWESTERN UNIVERSITY LAW SCHOOL, MARCH 20, 1963, PP. 6-7.  BUT SEE
THE DEBATE IN THE CONSTITUTIONAL CONVENTION OVER THE QUESTION WHETHER
IT WAS NECESSARY OR ADVISABLE TO INCLUDE AMONG THE ENUMERATED POWERS OF
THE CONGRESS A POWER "TO ESTABLISH AN UNIVERSITY, IN WHICH NO
PREFERENCES OR DISTINCTIONS SHOULD BE ALLOWED ON ACCOUNT OF RELIGION." 
AT LEAST ONE DELEGATE THOUGHT SUCH AN EXPLICIT DELEGATION "IS NOT
NECESSARY," FOR "THE EXCLUSIVE POWER AT THE SEAT OF GOVERNMENT, WILL
REACH THE OBJECT."  THE PROPOSAL WAS DEFEATED BY ONLY TWO VOTES.  2
FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1788 (1911), 616. 

FN20  THE LAST FORMAL ESTABLISHMENT, THAT OF MASSACHUSETTS, WAS
DISSOLVED IN 1833.  THE PROCESS OF DISESTABLISHMENT IN THAT AND OTHER
STATES IS DESCRIBED IN COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA
(1902), C. X; SWEET, THE STORY OF RELIGION IN AMERICA (1950), C. XIII. 
THE GREATER RELEVANCE OF CONDITIONS EXISTING AT THE TIME OF ADOPTION OF
THE FOURTEENTH AMENDMENT IS SUGGESTED IN NOTE, STATE SUNDAY LAWS AND
THE RELIGIOUS GUARANTEES OF THE FEDERAL CONSTITUTION, 73 HARV. L. REV.
729, 739, N. 79 (1960). 

FN21  SEE CORWIN, A CONSTITUTION OF POWERS IN A SECULAR STATE (1951),
111-114; FAIRMAN AND MORRISON, DOES THE FOURTEENTH AMENDMENT
INCORPORATE THE BILL OF RIGHTS?  2 STAN.  L. REV.  5 (1949); MEYER,
COMMENT, THE BLAINE AMENDMENT AND THE BILL OF RIGHTS, 64 HARV. L. REV.
939 (1951); HOWE, RELIGION AND RACE IN PUBLIC EDUCATION, 8 BUFFALO L.
REV. 242, 245-247 (1959).  CF. COOLEY, PRINCIPLES OF CONSTITUTIONAL LAW
(2D ED. 1891), 213-214.  COMPARE PROFESSOR FREUND'S COMMENT: 

"LOOKING BACK, IT IS HARD TO SEE HOW THE COURT COULD HAVE DONE
OTHERWISE, HOW IT COULD HAVE PERSISTED IN ACCEPTING FREEDOM OF CONTRACT
AS A GUARANTEED LIBERTY WITHOUT GIVING EQUAL STATUS TO FREEDOM OF PRESS
AND SPEECH, ASSEMBLY, AND RELIGIOUS OBSERVANCE.  WHAT DOES NOT SEEM SO
INEVITABLE IS THE INCLUSION WITHIN THE FOURTEENTH AMENDMENT OF THE
CONCEPT OF NONESTABLISHMENT OF RELIGION IN THE SENSE OF FORBIDDING
NONDISCRIMINATORY AID TO RELIGION, WHERE THERE IS NO INTERFERENCE WITH
FREEDOM OF RELIGIOUS EXERCISE."  FREUND, THE SUPREME COURT OF THE
UNITED STATES (1961), 58-59. 

FN22  THE BLAINE AMENDMENT, 4 CONG. REC. 5580, INCLUDED ALSO A MORE
EXPLICIT PROVISION THAT "NO MONEY RAISED BY TAXATION IN ANY STATE FOR
THE SUPPORT OF PUBLIC SCHOOLS OR DERIVED FROM ANY PUBLIC FUND THEREFOR,
NOR ANY PUBLIC LANDS DEVOTED THERETO, SHALL EVER BE UNDER THE CONTROL
OF ANY RELIGIOUS SECT OR DENOMINATION  ...  ."  THE AMENDMENT PASSED
THE HOUSE BUT FAILED TO OBTAIN THE REQUISITE TWO-THIRDS VOTE IN THE
SENATE.  SEE 4 CONG. REC. 5595.  THE PROHIBITION WHICH THE BLAINE
AMENDMENT WOULD HAVE ENGRAFTED ONTO THE AMERICAN CONSTITUTION HAS BEEN
INCORPORATED IN THE CONSTITUTIONS OF OTHER NATIONS; COMPARE ARTICLE 28
(1) OF THE CONSTITUTION OF INDIA ("NO RELIGIOUS INSTRUCTION SHALL BE
PROVIDED IN ANY EDUCATIONAL INSTITUTION WHOLLY MAINTAINED OUT OF STATE
FUNDS"); ARTICLE XX OF THE CONSTITUTION OF JAPAN ("  ...  THE STATE AND
ITS ORGANS SHALL REFRAIN FROM RELIGIOUS EDUCATION OR ANY OTHER
RELIGIOUS ACTIVITY").  SEE 1 CHAUDHRI, CONSTITUTIONAL RIGHTS AND
LIMITATIONS (1955), 875, 876. 

FN23  THREE YEARS AFTER THE ADOPTION OF THE FOURTEENTH AMENDMENT, MR.
JUSTICE BRADLEY WROTE A LETTER EXPRESSING HIS VIEWS ON A PROPOSED
CONSTITUTIONAL AMENDMENT DESIGNED TO ACKNOWLEDGE THE DEPENDENCE OF THE
NATION UPON GOD, AND TO RECOGNIZE THE BIBLE AS THE FOUNDATION OF ITS
LAWS AND THE SUPREME RULER OF ITS CONDUCT: 

"I HAVE NEVER BEEN ABLE TO SEE THE NECESSITY OR EXPEDIENCY OF THE
MOVEMENT FOR OBTAINING SUCH AN AMENDMENT.  THE CONSTITUTION WAS
EVIDENTLY FRAMED AND ADOPTED BY THE PEOPLE OF THE UNITED STATES WITH
THE FIXED DETERMINATION TO ALLOW ABSOLUTE RELIGIOUS FREEDOM AND
EQUALITY, AND TO AVOID ALL APPEARANCE EVEN OF A STATE RELIGION, OR A
STATE ENDORSEMENT OF ANY PARTICULAR CREED OR RELIGIOUS SECT  ...  .
AND AFTER THE CONSTITUTION IN ITS ORIGINAL FORM WAS ADOPTED, THE PEOPLE
MADE HASTE TO SECURE AN AMENDMENT THAT CONGRESS SHALL MAKE NO LAW
RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF.  THIS SHOWS THE EARNEST DESIRE OF OUR REVOLUTIONARY
FATHERS THAT RELIGION SHOULD BE LEFT TO THE FREE AND VOLUNTARY ACTION
OF THE PEOPLE THEMSELVES.  I DO NOT REGARD IT AS MANIFESTING ANY
HOSTILITY TO RELIGION, BUT AS SHOWING A FIXED DETERMINATION TO LEAVE
THE PEOPLE ENTIRELY FREE ON THE SUBJECT. 

"AND IT SEEMS TO ME THAT OUR FATHERS WERE WISE; THAT THE GREAT
VOLUNTARY SYSTEM OF THIS COUNTRY IS QUITE AS FAVORABLE TO THE PROMOTION
OF REAL RELIGION AS THE SYSTEMS OF GOVERNMENTAL PROTECTION AND
PATRONAGE HAVE BEEN IN OTHER COUNTRIES.  AND WHILST I DO NOT UNDERSTAND
THAT THE ASSOCIATION WHICH YOU REPRESENT DESIRE TO INVOKE ANY
GOVERNMENTAL INTERFERENCE, STILL THE AMENDMENT SOUGHT IS A STEP IN THAT
DIRECTION WHICH OUR FATHERS (QUITE AS GOOD CHRISTIANS AS OURSELVES)
THOUGHT IT WISE NOT TO TAKE.  IN THIS COUNTRY THEY THOUGHT THEY HAD
SETTLED ONE THING AT LEAST, THAT IT IS NOT THE PROVINCE OF GOVERNMENT
TO TEACH THEOLOGY. 

"  ...  RELIGION, AS THE BASIS AND SUPPORT OF CIVIL GOVERNMENT, MUST
RESIDE, NOT IN THE WRITTEN CONSTITUTION, BUT IN THE PEOPLE THEMSELVES. 
AND WE CANNOT LEGISLATE RELIGION INTO THE PEOPLE.  IT MUST BE INFUSED
BY GENTLER AND WISER METHODS."  MISCELLANEOUS WRITINGS OF JOSEPH P.
BRADLEY (1901), 357-359. 

FOR A LATER PHASE OF THE CONTROVERSY OVER SUCH A CONSTITUTIONAL
AMENDMENT AS THAT WHICH JUSTICE BRADLEY OPPOSED, SEE FINLATOR, CHRIST
IN CONGRESS, 4 J. CHURCH AND STATE 205 (1962). 

FN24  THERE IS NO DOUBT THAT, WHATEVER "ESTABLISHMENT" MAY HAVE MEANT
TO THE FRAMERS OF THE FIRST AMENDMENT IN 1791, THE DRAFTSMEN OF THE
FOURTEENTH AMENDMENT THREE QUARTERS OF A CENTURY LATER UNDERSTOOD THE
ESTABLISHMENT CLAUSE TO FORECLOSE MANY INCIDENTAL FORMS OF GOVERNMENTAL
AID TO RELIGION WHICH FELL FAR SHORT OF THE CREATION OR SUPPORT OF AN
OFFICIAL CHURCH.  THE REPORT OF A SENATE COMMITTEE AS EARLY AS 1853,
FOR EXAMPLE, CONTAINED THIS VIEW OF THE ESTABLISHMENT CLAUSE: 

"IF CONGRESS HAS PASSED, OR SHOULD PASS, ANY LAW WHICH, FAIRLY
CONSTRUED, HAS IN ANY DEGREE INTRODUCED, OR SHOULD ATTEMPT TO
INTRODUCE, IN FAVOR OF ANY CHURCH, OR ECCLESIASTICAL ASSOCIATION, OR
SYSTEM OF RELIGIOUS FAITH, ALL OR ANY ONE OF THESE OBNOXIOUS
PARTICULARS - ENDOWMENT AT THE PUBLIC EXPENSE, PECULIAR PRIVILEGES TO
ITS MEMBERS, OR DISADVANTAGES OR PENALTIES UPON THOSE WHO SHOULD REJECT
ITS DOCTRINES OR BELONG TO OTHER COMMUNIONS - SUCH LAW WOULD BE A 'LAW
RESPECTING AN ESTABLISHMENT OF RELIGION,' AND, THEREFORE, IN VIOLATION
OF THE CONSTITUTION."  S. REP. NO. 376, 32D CONG., 2D SESS. 1-2. 

COMPARE THOMAS M. COOLEY'S EXPOSITION IN THE YEAR IN WHICH THE
FOURTEENTH AMENDMENT WAS RATIFIED: 

"THOSE THINGS WHICH ARE NOT LAWFUL UNDER ANY OF THE AMERICAN
CONSTITUTIONS MAY BE STATED THUS: 

"1. ANY LAW RESPECTING AN ESTABLISHMENT OF RELIGION  ...  . 

"2. COMPULSORY SUPPORT, BY TAXATION OR OTHERWISE, OF RELIGIOUS
INSTRUCTION.  NOT ONLY IS NO ONE DENOMINATION TO BE FAVORED AT THE
EXPENSE OF THE REST, BUT ALL SUPPORT OF RELIGIOUS INSTRUCTION MUST BE
ENTIRELY VOLUNTARY."  COOLEY, CONSTITUTIONAL LIMITATIONS (1ST ED.
1868), 469. 

FN25  COMPARE, E.G., MILLER, ROGER WILLIAMS: HIS CONTRIBUTION TO THE
AMERICAN TRADITION (1953), 83, WITH MADISON, MEMORIAL AND REMONSTRANCE
AGAINST RELIGIOUS ASSESSMENTS, REPRINTED AS AN APPENDIX TO THE
DISSENTING OPINION OF MR. JUSTICE RUTLEDGE, EVERSON V. BOARD OF
EDUCATION, SUPRA, AT 63-72.  SEE ALSO CAHN, ON GOVERNMENT AND PRAYER,
37 N.Y.U.L. REV. 981, 982-985 (1962); JEFFERSON'S BILL FOR ESTABLISHING
RELIGIOUS FREEDOM, IN PADOVER, THE COMPLETE JEFFERSON (1943), 946-947;
MOULTON AND MYERS, REPORT ON APPOINTING CHAPLAINS TO THE LEGISLATURE OF
NEW YORK, IN BLAU, CORNERSTONES OF RELIGIOUS FREEDOM IN AMERICA (1949),
141-156; BURY, A HISTORY OF FREEDOM OF THOUGHT (2D ED. 1952), 75-76. 

FN26  SEE, E.G., SPICER, THE SUPREME COURT AND FUNDAMENTAL FREEDOMS
(1959), 83-84; KAUPER, CHURCH, STATE, AND FREEDOM: A REVIEW, 52 MICH.
L. REV. 829, 839 (1954); REED, CHURCH-STATE AND THE ZORACH CASE, 27
NOTRE DAME LAWYER 529, 539-541 (1952). 

FN27  SEE 343 U.S., AT 321-322 (FRANKFURTER, J., DISSENTING);
KURLAND, RELIGION AND THE LAW (1962), 89.  I RECOGNIZE THAT THERE IS A
QUESTION WHETHER IN ZORACH THE FREE EXERCISE CLAIMS ASSERTED WERE IN
FACT PROVED.  343 U.S., AT 311. 

FN28  MR. JUSTICE FRANKFURTER DESCRIBED THE EFFECTS OF THE MCCOLLUM
PROGRAM THUS: 

"RELIGIOUS EDUCATION SO CONDUCTED ON SCHOOL TIME AND PROPERTY IS
PATENTLY WOVEN INTO THE WORKING SCHEME OF THE SCHOOL.  THE CHAMPAIGN
ARRANGEMENT THUS PRESENTS POWERFUL ELEMENTS OF INHERENT PRESSURE BY THE
SCHOOL SYSTEM IN THE INTEREST OF RELIGIOUS SECTS  ...  .  AS A RESULT,
THE PUBLIC SCHOOL SYSTEM OF CHAMPAIGN ACTIVELY FURTHERS INCULCATION IN
THE RELIGIOUS TENETS OF SOME FAITHS, AND IN THE PROCESS SHARPENS THE
CONSCIOUSNESS OF RELIGIOUS DIFFERENCES AT LEAST AMONG SOME OF THE
CHILDREN COMMITTED TO ITS CARE."  333 U.S., AT 227-228. 

FOR SIMILAR REASONS SOME STATE COURTS HAVE ENJOINED THE PUBLIC
SCHOOLS FROM EMPLOYING OR ACCEPTING THE SERVICES OF MEMBERS OF
RELIGIOUS ORDERS EVEN IN THE TEACHING OF SECULAR SUBJECTS, E.G.,
ZELLERS V. HUFF, 55 N.M. 501, 236 P.2D 949; BERGHORN V. REORGANIZED
SCHOOL DIST. NO. 8, 364 MO. 121, 260 S.W.2D 573; COMPARE RULING OF
TEXAS COMMISSIONER OF EDUCATION, JAN. 25, 1961, IN 63 AMERICAN JEWISH
YEARBOOK (1962), 188.  OVER A HALF CENTURY AGO A NEW YORK COURT
SUSTAINED A SCHOOL BOARD'S EXCLUSION FROM THE PUBLIC SCHOOLS OF
TEACHERS WEARING RELIGIOUS GARB ON SIMILAR GROUNDS: 

"THEN ALL THROUGH THE SCHOOL HOURS THESE TEACHERS  ...  WERE BEFORE
THE CHILDREN AS OBJECT LESSONS OF THE ORDER AND CHURCH OF WHICH THEY
WERE MEMBERS.  IT IS WITHIN OUR COMMON OBSERVATION THAT YOUNG CHILDREN
...  ARE VERY SUSCEPTIBLE TO THE INFLUENCE OF THEIR TEACHERS AND OF THE
KIND OF OBJECT LESSONS CONTINUALLY BEFORE THEM IN SCHOOLS CONDUCTED
UNDER THESE CIRCUMSTANCES AND WITH THESE SURROUNDINGS."  O'CONNOR V.
HENDRICK, 109 APP. DIV. 361, 371-372, 96 N.Y.  SUPP. 161, 169.  SEE
ALSO COMMONWEALTH V. HERR, 229 PA. 132, 78 A. 68; COMMENT, RELIGIOUS
GARB IN THE PUBLIC SCHOOLS - A STUDY IN CONFLICTING LIBERTIES, 22 U. OF
CHI.  L. REV. 888 (1955). 

ALSO APPOSITE ARE DECISIONS OF SEVERAL COURTS WHICH HAVE ENJOINED THE
USE OF PAROCHIAL SCHOOLS AS PART OF THE PUBLIC SCHOOL SYSTEM, HARFST V.
HOEGEN, 349 MO. 808, 163 S.W.2D 609; OR HAVE INVALIDATED PROGRAMS FOR
THE DISTRIBUTION IN PUBLIC SCHOOL CLASSROOMS OF GIDEON BIBLES, BROWN V.
ORANGE COUNTY BOARD OF PUBLIC INSTRUCTION, 128 SO. 2D 181 (FLA. APP.);
TUDOR V. BOARD OF EDUCATION, 14 N.J. 31, 100 A.2D 857.  SEE NOTE, THE
FIRST AMENDMENT AND DISTRIBUTION OF RELIGIOUS LITERATURE IN THE PUBLIC
SCHOOLS, 41 VA. L. REV. 789, 803-806 (1955).  IN TUDOR, THE COURT
STRESSED THE ROLE OF THE PUBLIC SCHOOLS IN THE BIBLE PROGRAM: 

"  ...  THE PUBLIC SCHOOL MACHINERY IS USED TO BRING ABOUT THE
DISTRIBUTION OF THESE BIBLES TO THE CHILDREN  ...  .  IN THE EYES OF
THE PUPILS AND THEIR PARENTS THE BOARD OF EDUCATION HAS PLACED ITS
STAMP OF APPROVAL UPON THIS DISTRIBUTION AND, IN FACT, UPON THE GIDEON
BIBLE ITSELF  ...  .  THIS IS MORE THAN MERE 'ACCOMMODATION' OF
RELIGION PERMITTED IN THE ZORACH CASE.  THE SCHOOL'S PART IN THIS
DISTRIBUTION IS AN ACTIVE ONE AND CANNOT BE SUSTAINED ON THE BASIS OF A
MERE ASSISTANCE TO RELIGION."  14 N.J., AT 51-52, 100 A.2D, AT 868. 
THE SIGNIFICANCE OF THE TEACHER'S AUTHORITY WAS RECOGNIZED BY ONE EARLY
STATE COURT DECISION: 

"THE SCHOOL BEING IN SESSION, THE RIGHT TO COMMAND WAS VESTED IN THE
TEACHER, AND THE DUTY OF OBEDIENCE IMPOSED UPON THE PUPILS.  UNDER SUCH
CIRCUMSTANCES A REQUEST AND A COMMAND HAVE THE SAME MEANING.  A REQUEST
FROM ONE IN AUTHORITY IS UNDERSTOOD TO BE A MERE EUPHEMISM.  IT IS IN
FACT A COMMAND IN AN INOFFENSIVE FORM."  STATE EX REL. FREEMAN V.
SCHEVE, 65 NEB. 876, 880, 93 N.W. 169, 170. 

FN29  SEE FOR OTHER ILLUSTRATIONS OF THE PRINCIPLE THAT WHERE FIRST
AMENDMENT FREEDOMS ARE OR MAY BE AFFECTED, GOVERNMENT MUST EMPLOY THOSE
MEANS WHICH WILL LEAST INHIBIT THE EXERCISE OF CONSTITUTIONAL
LIBERTIES, LOVELL V. GRIFFIN, 303 U.S. 444; SCHNEIDER V. STATE, 308
U.S. 147, 161; MARTIN V. STRUTHERS, 319 U.S. 141; SAIA V. NEW YORK, 334
U.S. 558; SHELTON V. TUCKER, 364 U.S. 479, 488-489; BANTAM BOOKS, INC.,
V. SULLIVAN, 372 U.S. 58, 66, 69-71.  SEE ALSO NOTE, STATE SUNDAY LAWS
AND THE RELIGIOUS GUARANTEES OF THE FEDERAL CONSTITUTION, 73 HARV. L.
REV. 729, 743-745 (1960); FREUND, THE SUPREME COURT OF THE UNITED
STATES (1961), 86-87; 74 HARV. L. REV. 613 (1961).  AND COMPARE MILLER
V. COOPER, 56 N.M. 355, 244 P.2D 520 (1952), IN WHICH A STATE COURT
PERMITTED THE HOLDING OF PUBLIC SCHOOL COMMENCEMENT EXERCISES IN A
CHURCH BUILDING ONLY BECAUSE NO PUBLIC BUILDINGS IN THE COMMUNITY WERE
ADEQUATE TO ACCOMMODATE THE CEREMONY. 

FN30  NO QUESTION HAS BEEN RAISED IN THESE CASES CONCERNING THE
STANDING OF THESE PARENTS TO CHALLENGE THE RELIGIOUS PRACTICES
CONDUCTED IN THE SCHOOLS WHICH THEIR CHILDREN PRESENTLY ATTEND. 
WHATEVER AUTHORITY DOREMUS V. BOARD OF EDUCATION, 342 U.S. 429, MIGHT
HAVE ON THE QUESTION OF THE STANDING OF ONE NOT THE PARENT OF CHILDREN
AFFECTED BY THE CHALLENGED EXERCISES IS NOT BEFORE US IN THESE CASES. 
NEITHER IN MCCOLLUM NOR IN ZORACH WAS THERE ANY REASON TO QUESTION THE
STANDING OF THE PARENT-PLAINTIFFS UNDER SETTLED PRINCIPLES OF
JUSTICIABILITY AND JURISDICTION, WHETHER OR NOT THEIR COMPLAINTS
ALLEGED PECUNIARY LOSS OR MONETARY INJURY.  THE FREE-EXERCISE CLAIMS OF
THE PARENTS ALLEGED INJURY SUFFICIENT TO GIVE THEM STANDING.  IF,
HOWEVER, THE GRAVAMEN OF THE LAWSUIT WERE EXCLUSIVELY ONE OF
ESTABLISHMENT, IT MIGHT SEEM ILLOGICAL TO CONFER STANDING UPON A PARENT
WHO - THOUGH HE IS CONCEDEDLY IN THE BEST POSITION TO ASSERT A FREE
EXERCISE CLAIM - SUFFERS NO FINANCIAL INJURY, BY REASON OF BEING A
PARENT, DIFFERENT FROM THAT OF THE ORDINARY TAXPAYER, WHOSE STANDING
MAY BE OPEN TO QUESTION.  SEE SUTHERLAND, ESTABLISHMENT ACCORDING TO
ENGEL, 76 HARV. L. REV. 25, 41-43 (1962).  I WOULD SUGGEST SEVERAL
ANSWERS TO THIS CONCEPTUAL DIFFICULTY.  FIRST, THE PARENT IS SURELY THE
PERSON MOST DIRECTLY AND IMMEDIATELY CONCERNED ABOUT AND AFFECTED BY
THE CHALLENGED ESTABLISHMENT, AND TO DENY HIM STANDING EITHER IN HIS
OWN RIGHT OR ON BEHALF OF HIS CHILD MIGHT EFFECTIVELY FORECLOSE
JUDICIAL INQUIRY INTO SERIOUS BREACHES OF THE PROHIBITIONS OF THE FIRST
AMENDMENT - EVEN THOUGH NO SPECIAL MONETARY INJURY COULD BE SHOWN.  SEE
SCHEMPP V. SCHOOL DISTRICT OF ABINGTON TOWNSHIP, 177 F. SUPP. 398, 407;
KURLAND, THE REGENTS' PRAYER CASE: "FULL OF SOUND AND FURY, SIGNIFYING
...  ," 1962 SUPREME COURT REVIEW 1, 22.  SECOND, THE COMPLAINT IN
EVERY CASE THUS FAR CHALLENGING AN ESTABLISHMENT HAS SET FORTH AT LEAST
A COLORABLE CLAIM OF INFRINGEMENT OF FREE EXERCISE.  WHEN THE COMPLAINT
INCLUDES BOTH CLAIMS, AND NEITHER IS FRIVOLOUS, IT WOULD SURELY BE
OVERTECHNICAL TO SAY THAT A PARENT WHO DOES NOT DETAIL THE MONETARY
COST OF THE EXERCISES TO HIM MAY ASK THE COURT TO PASS ONLY UPON THE
FREE-EXERCISE CLAIM, HOWEVER LOGICALLY THE TWO MAY BE RELATED.  CF.
PIERCE V. SOCIETY OF SISTERS, SUPRA; TRUAX V. RAICH, 239 U.S. 33, 38
39; NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S. 449, 458-460; BELL V.
HOOD, 327 U.S. 678; BANTAM BOOKS, INC., V. SULLIVAN, 372 U.S. 58, 64,
N. 6.  FINALLY, THE CONCEPT OF STANDING IS A NECESSARILY FLEXIBLE ONE,
DESIGNED PRINCIPALLY TO ENSURE THAT THE PLAINTIFFS HAVE "SUCH A
PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY AS TO ASSURE THAT
CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF ISSUES UPON
WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF DIFFICULT
CONSITTUTIONAL QUESTIONS  ...  ."  BAKER V. CARR, 369 U.S. 186, 204. 
IT SEEMS TO ME THAT EVEN A CURSORY EXAMINATION OF THE COMPLAINTS IN
THESE TWO CASES AND THE OPINIONS BELOW DISCLOSES THAT THESE PARENTS
HAVE VERY REAL GRIEVANCES AGAINST THE RESPECTIVE SCHOOL AUTHORITIES
WHICH CANNOT BE RESOLVED SHORT OF CONSTITUTIONAL ADJUDICATION.  SEE
GENERALLY ARTHUR GARFIELD HAYS CIVIL LIBERTIES CONFERENCE: PUBLIC AID
TO PAROCHIAL SCHOOLS AND STANDING TO BRING SUIT, 12 BUFFALO L. REV. 35
(1962); JAFFE, STANDING TO SECURE JUDICIAL REVIEW: PUBLIC ACTIONS, 74
HARV.  L. REV. 1265 (1961); SUTHERLAND, DUE PROCESS AND
DISESTABLISHMENT, 62 HARV. L. REV.  1306, 1327-1332 (1949); COMMENT,
THE SUPREME COURT, THE FIRST AMENDMENT, AND RELIGION IN THE PUBLIC
SCHOOLS, 63 COL. L. REV. 73, 94, N. 153 (1963).    FN31  QUOTED IN
DUNN, WHAT HAPPENED TO RELIGIOUS EDUCATION?  (1958), 21. 

FN32  QUOTED, ID., AT 22. 

FN33 QUOTED IN HARTFORD, MORAL VALUES IN PUBLIC EDUCATION: LESSONS
FROM THE KENTUCKY EXPERIENCE (1958), 31. 

FN34  SEE CULVER, HORACE MANN AND RELIGION IN THE MASSACHUSETTS
PUBLIC SCHOOLS (1929), FOR AN ACCOUNT OF ONE PROMINENT EDUCATOR'S
EFFORTS TO SATISFY BOTH THE PROTESTS OF THOSE WHO OPPOSED CONTINUATION
OF SECTARIAN LESSONS AND EXERCISES IN PUBLIC SCHOOLS, AND THE DEMANDS
OF THOSE WHO INSISTED UPON THE RETENTION OF SOME ESSENTIALLY RELIGIOUS
PRACTICES.  MANN'S CONTINUED USE OF THE BIBLE FOR WHAT HE REGARDED AS
NONSECTARIAN EXERCISES REPRESENTED HIS RESPONSE TO THESE CROSS
PRESSURES.  SEE MANN, RELIGIOUS EDUCATION, IN BLAU, CORNERSTONES OF
RELIGIOUS FREEDOM IN AMERICA (1949), 163-201 (FROM THE TWELFTH ANNUAL
REPORT FOR 1848 OF THE SECRETARY OF THE BOARD OF EDUCATION OF
MASSACHUSETTS).  SEE ALSO BOLES, THE BIBLE, RELIGION, AND THE PUBLIC
SCHOOLS (1961), 22-27. 

FN35  SEE 2 STOKES, CHURCH AND STATE IN THE UNITED STATES (1950), 572
579; GREENE, RELIGION AND THE STATE: THE MAKING AND TESTING OF AN
AMERICAN TRADITION (1941), 122-126. 

FN36  E.G., ALA. CODE, TIT. 52, SEC. 542; DEL. CODE ANN., TIT. 14,
SECS. 4101-4102; FLA.  STAT. ANN. SEC. 231.09(2); MASS. ANN. LAWS, C.
71, SEC. 31; TENN. CODE ANN. SEC. 49-1307(4).  SOME STATUTES, LIKE THE
RECENTLY AMENDED PENNSYLVANIA STATUTE INVOLVED IN SCHEMPP, PROVIDE FOR
THE EXCUSAL OR EXEMPTION OF CHILDREN WHOSE PARENTS DO NOT WISH THEM TO
PARTICIPATE.  SEE GENERALLY JOHNSON AND YOST, SEPARATION OF CHURCH AND
STATE IN THE UNITED STATES (1948), 33-36; THAYER, THE ROLE OF THE
SCHOOL IN AMERICAN SOCIETY (1960), 374-375; BETH, THE AMERICAN THEORY
OF CHURCH AND STATE (1958), 106-107.  COMPARE WITH THE AMERICAN
STATUTORY APPROACH ARTICLE 28(3) OF THE CONSTITUTION OF INDIA: 

"(3)  NO PERSON ATTENDING ANY EDUCATIONAL INSTITUTION RECOGNISED BY
THE STATE OR RECEIVING AID OUT OF STATE FUNDS SHALL BE REQUIRED TO TAKE
PART IN ANY RELIGIOUS INSTRUCTION THAT MAY BE IMPARTED IN SUCH
INSTITUTION OR TO ATTEND ANY RELIGIOUS WORSHIP THAT MAY BE CONDUCTED IN
SUCH INSTITUTION OR IN ANY PREMISES ATTACHED THERETO UNLESS SUCH PERSON
OR, IF SUCH PERSON IS A MINOR, HIS GUARDIAN HAS GIVEN HIS CONSENT
THERETO."  SEE 1 CHAUDHRI, CONSTITUTIONAL RIGHTS AND LIMITATIONS
(1955), 876, 939. 

FN37  SEE NOTE 34, SUPRA. 

FN38  QUOTED FROM NEW HAMPSHIRE SCHOOL REPORTS, 1850, 31-32, IN
KINNEY, CHURCH AND STATE: THE STRUGGLE FOR SEPARATION IN NEW HAMPSHIRE,
1630-1900 (1955), 157-158. 

FN39  QUOTED IN BOYER, RELIGIOUS EDUCATION OF PUBLIC SCHOOL PUPILS IN
WISCONSIN, 1953 WIS.  L. REV. 181, 186. 

FN40  QUOTED IN DUNN, WHAT HAPPENED TO RELIGIOUS EDUCATION?  (1958),
271. 

FN41  QUOTED IN BUTTS, THE AMERICAN TRADITION IN RELIGION AND
EDUCATION (1950), 135-136. 

FN42  SEE BOARD OF EDUCATION V. MINOR, 23 OHIO ST. 211; BLAKELY,
AMERICAN STATE PAPERS AND RELATED DOCUMENTS ON FREEDOM IN RELIGION (4TH
REV. ED. 1949), 864. 

FN43  REPORT OF THE UNITED STATES COMMISSIONER OF EDUCATION FOR THE
YEAR 1888-1889, PART I, H.R. EXEC. DOC. NO. 1, PART 5, 51ST CONG., 1ST
SESS. 627. 

FN44  QUOTED IN ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION,
SUPRA, AT 218 (OPINION OF FRANKFURTER, J.).  SEE ALSO PRESIDENT GRANT'S
ANNUAL MESSAGE TO CONGRESS, DEC. 7, 1875, 4 CONG. REC. 175 ET SEQ.,
WHICH APPARENTLY INSPIRED THE DRAFTING AND SUBMISSION OF THE BLAINE
AMENDMENT.  SEE MEYER, COMMENT, THE BLAINE AMENDMENT AND THE BILL OF
RIGHTS, 64 HARV. L. REV.  939 (1951). 

FN45  THEODORE ROOSEVELT TO MICHAEL A. SCHAAP, FEB. 22, 1915, 8
LETTERS OF THEODORE ROOSEVELT (MORISON ED. 1954), 893. 

FN46  QUOTED IN BOLES, THE BIBLE, RELIGION, AND THE PUBLIC SCHOOLS
(1961), 238. 

FN47  E.G., 1955 OP. ARIZ. ATTY. GEN. 67; 26 ORE.  OP. ATTY. GEN. 46
(1952); 25 CAL. OP.  ATTY. GEN. 316 (1955); 1948-1950 NEV. ATTY. GEN.
REP. 69 (1948).  FOR A 1961 OPINION OF THE ATTORNEY GENERAL OF MICHIGAN
TO THE SAME EFFECT, SEE 63 AMERICAN JEWISH YEARBOOK (1962) 189.  IN
ADDITION TO THE GOVERNOR OF OHIO, SEE NOTE 46, SUPRA, A GOVERNOR OF
ARIZONA VETOED A PROPOSED LAW WHICH WOULD HAVE PERMITTED "READING THE
BIBLE, WITHOUT COMMENT, EXCEPT TO TEACH HISTORICAL OR LITERARY FACTS." 
SEE 2 STOKES, CHURCH AND STATE IN THE UNITED STATES (1950), 568. 

FN48  SEE JOHNSON AND YOST, SEPARATION OF CHURCH AND STATE IN THE
UNITED STATES (1948), 71; NOTE, BIBLE READING IN PUBLIC SCHOOLS, 9
VAND.  L. REV. 849, 851 (1956). 

FN49  E.G., SPILLER V. INHABITANTS OF WOBURN, 12 ALLEN (MASS.) 127
(1866); DONAHOE V. RICHARDS, 38 MAINE 376, 413 (1854); CF. FERRITER V.
TYLER, 48 VT. 444, 471-472 (1876). 

FN50  BOARD OF EDUCATION V. MINOR, 23 OHIO ST. 211 (1873). 

FN51  PEOPLE EX REL. RING V. BOARD OF EDUCATION, 245 ILL. 334, 92
N.E. 251 (1910); HEROLD V. PARISH BOARD OF SCHOOL DIRECTORS, 136 LA.
1034, 68 SO. 116 (1915); STATE EX REL. WEISS V. DISTRICT BOARD, 76 WIS.
177, 44 N.W. 967 (1890); STATE EX REL. FINGER V. WEEDMAN, 55 S.D.  343,
226 N.W. 348 (1929); STATE EX REL. DEARLE V. FRAZIER, 102 WASH. 369,
173 P. 35 (1918); CF. STATE EX REL. CLITHERO V. SHOWALTER, 159 WASH.
519, 293 P. 1000 (1930); STATE EX REL.  FREEMAN V. SCHEVE, 65 NEB. 853,
91 N.W. 846 (1902), MODIFIED, 65 NEB. 876, 93 N.W. 169 (1903).  THE
CASES ARE DISCUSSED IN BOLES, THE BIBLE, RELIGION, AND THE PUBLIC
SCHOOLS (1961), C. IV; HARRISON, THE BIBLE, THE CONSTITUTION AND PUBLIC
EDUCATION, 29 TENN. L. REV. 363, 386-389 (1962). 

FN52  MOORE V. MONROE, 64 IOWA 367, 20 N.W. 475 (1884); HACKETT V.
BROOKSVILLE GRADED SCHOOL DISTRICT, 120 KY. 608, 87 S.W. 792 (1905);
BILLARD V. BOARD OF EDUCATION, 69 KAN. 53, 76 P. 422 (1904); PFEIFFER
V. BOARD OF EDUCATION, 118 MICH. 560 77 N.W. 250 (1898); KAPLAN V.
SCHOOL DISTRICT, 171 MINN. 142, 214 N.W. 18 (1927); LEWIS V. BOARD OF
EDUCATION, 157 MISC. 520, 285 N.Y. SUPP 164 (SUP. CT. 1935), MODIFIED
ON OTHER GROUNDS, 247 APP. DIV. 106, 286 N.Y. SUPP.  174 (1936), APPEAL
DISMISSED, 276 N.Y. 490, 12 N.E.2D 172 (1937); DOREMUS V. BOARD OF
EDUCATION, 5 N.J. 435, 75 A.2D 880 (1950), APPEAL DISMISSED, 342 U.S.
429; CHURCH V. BULLOCK, 104 TEX. 1, 109 S.W. 115 (1908); PEOPLE EX REL.
VOLLMAR V. STANLEY, 81 COLO. 276, 255 P. 610 (1927); WILKERSON V. CITY
OF ROME, 152 GA. 762, 110 S.E. 895 (1922); CARDEN V. BLAND, 199 TENN.
665, 288 S.W.2D 718 (1956); CHAMBERLIN V. DADE COUNTY BOARD OF PUBLIC
INSTRUCTION, 143 SO. 2D 21 (FLA. 1962). 

FN53  FOR DISCUSSION OF THE CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED IN THE STATE CASES WHICH SUSTAINED DEVOTIONAL EXERCISES IN THE
PUBLIC SCHOOLS, SEE BOLES, THE BIBLE, RELIGION, AND THE PUBLIC SCHOOLS
(1961), C. III; HARRISON, THE BIBLE, THE CONSTITUTION AND PUBLIC
EDUCATION, 29 TENN. L. REV. 363, 381-385 (1962); FELLMAN, SEPARATION OF
CHURCH AND STATE IN THE UNITED STATES: A SUMMARY VIEW, 1950 WIS. L.
REV. 427, 450-452; NOTE, BIBLE READING IN PUBLIC SCHOOLS, 9 VAND.  L.
REV. 849, 854-859 (1956); NOTE, NINETEENTH CENTURY JUDICIAL THOUGHT
CONCERNING CHURCH-STATE RELATIONS, 40 MINN. L. REV. 672, 675-678
(1956).  STATE COURTS APPEAR TO HAVE BEEN INCREASINGLY INFLUENCED IN
SUSTAINING DEVOTIONAL PRACTICES BY THE AVAILABILITY OF AN EXCUSE OR
EXEMPTION FOR DISSENTING STUDENTS.  SEE CUSHMAN, THE HOLY BIBLE AND THE
PUBLIC SCHOOLS, 40 CORNELL L.Q. 475, 477 (1955); 13 VAND.  L. REV. 552
(1960). 

FN54  SEE ROSENFIELD, SEPARATION OF CHURCH AND STATE IN THE PUBLIC
SCHOOLS, 22 U. OF PITT.  L. REV. 561, 571-572 (1961); HARRISON, THE
BIBLE, THE CONSTITUTION AND PUBLIC EDUCATION, 29 TENN. L. REV. 363, 399
400 (1962); 30 FORD.  L. REV. 801, 803 (1962); 45 VA. L. REV. 1381
(1959).  THE ESSENTIALLY RELIGIOUS CHARACTER OF THE MATERIALS USED IN
THESE EXERCISES IS, IN FACT, STRONGLY SUGGESTED BY THE PRESENCE OF
EXCUSAL OR EXEMPTION PROVISIONS, AND BY THE PRACTICE OF ROTATING OR
ALTERNATING THE USE OF DIFFERENT PRAYERS AND VERSIONS OF THE HOLY
BIBLE. 

FN55  IN THE BILLARD CASE, THE TEACHER WHOSE USE OF THE LORD'S PRAYER
AND THE TWENTY-THIRD PSALM WAS BEFORE THE COURT TESTIFIED THAT THE
EXERCISE SERVED DISCIPLINARY RATHER THAN SPIRITUAL PURPOSES:

"IT IS NECESSARY TO HAVE SOME GENERAL EXERCISE AFTER THE CHILDREN
COME IN FROM THE PLAYGROUND TO PREPARE THEM FOR THEIR WORK.  YOU NEED
SOME GENERAL EXERCISE TO QUIET THEM DOWN." 

WHEN ASKED AGAIN IF THE PURPOSE WERE NOT AT LEAST PARTIALLY
RELIGIOUS, THE TEACHER REPLIED, "IT WAS RELIGIOUS TO THE CHILDREN THAT
ARE RELIGIOUS, AND TO THE OTHERS IT WAS NOT."  69 KAN., AT 57-58, 76
P., AT 423. 

FN56  SEE, E.G., HENRY, THE PLACE OF RELIGION IN PUBLIC SCHOOLS
(1950); MARTIN, OUR PUBLIC SCHOOLS - CHRISTIAN OR SECULAR (1952);
EDUCATIONAL POLICIES COMM'N OF THE NATIONAL EDUCATIONAL ASSN., MORAL
AND SPIRITUAL VALUES IN THE PUBLIC SCHOOLS (1951), C. IV; HARNER,
RELIGION'S PLACE IN GENERAL EDUCATION (1949).  EDUCATORS ARE BY NO
MEANS UNANIMOUS, HOWEVER, ON THIS QUESTION.  SEE BOLES, THE BIBLE,
RELIGION, AND THE PUBLIC SCHOOLS (1961), 223-224.  COMPARE GEORGE
WASHINGTON'S ADVICE IN HIS FAREWELL ADDRESS: 

"AND LET US WITH CAUTION INDULGE THE SUPPOSITION, THAT MORALITY CAN
BE MAINTAINED WITHOUT RELIGION.  WHATEVER MAY BE CONCEDED TO THE
INFLUENCE OF REFINED EDUCATION ON MINDS OF PECULIAR STRUCTURE, REASON
AND EXPERIENCE BOTH FORBID US TO EXPECT THAT NATIONAL MORALITY CAN
PREVAIL IN EXCLUSION OF RELIGIOUS PRINCIPLE."  35 WRITINGS OF GEORGE
WASHINGTON (FITZPATRICK ED. 1940), 229. 

FN57  THOMAS JEFFERSON'S INSISTENCE THAT WHERE THE JUDGMENTS OF YOUNG
CHILDREN "ARE NOT SUFFICIENTLY MATURED FOR RELIGIOUS INQUIRIES, THEIR
MEMORIES MAY HERE BE STORED WITH THE MOST USEFUL FACTS FROM GRECIAN,
ROMAN, EUROPEAN AND AMERICAN HISTORY," 2 WRITINGS OF THOMAS JEFFERSON
(MEMORIAL ED. 1903), 204, IS RELEVANT HERE.  RECENT PROPOSALS HAVE
EXPLORED THE POSSIBILITY OF COMMENCING THE SCHOOL DAY "WITH A QUIET
MOMENT THAT WOULD STILL THE TUMULT OF THE PLAYGROUND AND START A DAY OF
STUDY," EDITORIAL, WASHINGTON POST, JUNE 28, 1962, SEC. A, P. 22, COL.
2.  SEE ALSO NEW YORK TIMES, AUG. 30, 1962, SEC. 1, P. 18, COL. 2.  FOR
A CONSIDERATION OF THESE AND OTHER ALTERNATIVE PROPOSALS SEE CHOPER,
RELIGION IN THE PUBLIC SCHOOLS: A PROPOSED CONSTITUTIONAL STANDARD, 47
MINN. L. REV. 329, 370-371 (1963).  SEE ALSO 2 STOKES, CHURCH AND STATE
IN THE UNITED STATES (1950), 571. 

FN58  THE HISTORY, AS IT BEARS PARTICULARLY UPON THE ROLE OF
BEEN SUMMARIZED IN TUDOR V. BOARD OF EDUCATION, 14 N.J. 31, 36-44, 100
A.2D 857, 859-864.  SEE ALSO STATE EX REL. WEISS V. DISTRICT BOARD, 76
WIS. 177, 190-193, 44 N.W. 967, 972-975.  ONE STATE COURT ADVERTED TO
THESE DIFFERENCES A HALF CENTURY AGO: 

"THE BIBLE, IN ITS ENTIRETY, IS A SECTARIAN BOOK AS TO THE JEW AND
EVERY BELIEVER IN ANY RELIGION OTHER THAN THE CHRISTIAN RELIGION, AND
AS TO THOSE WHO ARE HERETICAL OR WHO HOLD BELIEFS THAT ARE NOT REGARDED
AS ORTHODOX  ...  ITS USE IN THE SCHOOLS NECESSARILY RESULTS IN
DIFFERENCES GROW OUT OF THEIR DIFFERING CONSTRUCTIONS OF VARIOUS PARTS
OF THE SCRIPTURES - THE DIFFERENT CONCLUSIONS DRAWN AS TO THE EFFECT OF
THE SAME WORDS.  THE PORTIONS OF SCRIPTURE WHICH FORM THE BASIS OF
THESE SECTARIAN DIFFERENCES CANNOT BE THOUGHTFULLY AND INTELLIGENTLY
READ WITHOUT IMPRESSING THE READER, FAVORABLY OR OTHERWISE, WITH
REFERENCE TO THE DOCTRINES SUPPOSED TO BE DERIVED FROM THEM."  PEOPLE
EX REL. RING V. BOARD OF EDUCATION, 245 ILL.  334, 347-348, 92 N.E.
251, 255.  BUT SEE, FOR A SHARPLY CRITICAL COMMENT, SCHOFIELD,
RELIGIOUS LIBERTY AND BIBLE READING IN ILLINOIS PUBLIC SCHOOLS, 6 ILL.
L. REV. 17 (1911). 

SEE ALSO DUNN, WHAT HAPPENED TO RELIGIOUS EDUCATION?  (1958), 268
273; DAWSON, AMERICA'S WAY IN CHURCH, STATE, AND SOCIETY (1953), 53-54;
JOHNSON AND YOST, SEPARATION OF CHURCH AND STATE IN THE UNITED STATES
(1948), C. IV; HARPSTER, RELIGION, EDUCATION AND THE LAW, 36 MARQUETTE
L. REV. 24, 44-45 (1952); 20 OHIO STATE L.J. 701, 702-703 (1959). 

FN59  SEE TORCASO V. WATKINS, SUPRA, AT 495, N. 11; CUSHMAN, THE HOLY
BIBLE AND THE PUBLIC SCHOOLS, 40 CORNELL L.Q. 475, 480-483 (1955);
NOTE, SEPARATION OF CHURCH AND STATE: RELIGIOUS EXERCISES IN THE
SCHOOLS, 31 U. OF CINC.  L. REV. 408, 411-412 (1962).  FEW RELIGIOUS
PERSONS TODAY WOULD SHARE THE UNIVERSALITY OF THE BIBLICAL CANONS OF
JOHN QUINCY ADAMS: 

"YOU ASK ME WHAT BIBLE I TAKE AS THE STANDARD OF MY FAITH - THE
HEBREW, THE SAMARITAN, THE OLD ENGLISH TRANSLATION, OR WHAT?  I ANSWER,
THE BIBLE CONTAINING THE SERMON UPON THE MOUNT - ANY BIBLE THAT I CAN
READ AND UNDERSTAND  ...  .  I TAKE ANY ONE OF THEM FOR MY STANDARD OF
FAITH.  IF SOCINUS OR PRIESTLEY HAD MADE A FAIR TRANSLATION OF THE
BIBLE, I WOULD HAVE TAKEN THAT, BUT WITHOUT THEIR COMMENTS."  JOHN
QUINCY ADAMS TO JOHN ADAMS, JAN. 3, 1817, IN KOCH AND PEDEN, SELECTED
WRITINGS OF JOHN AND JOHN QUINCY ADAMS (1946), 292. 

FN60  RABBI SOLOMON GRAYZEL TESTIFIED BEFORE THE DISTRICT COURT, "IN
JUDAISM THE BIBLE IS NOT READ, IT IS STUDIED.  THERE IS NO SPECIAL
VIRTUE ATTACHED TO A MERE READING OF THE BIBLE; THERE IS A GREAT DEAL
OF VIRTUE ATTACHED TO A STUDY OF THE BIBLE."  SEE BOLES, THE BIBLE,
RELIGION, AND THE PUBLIC SCHOOLS (1961), 208-218; CHOPER, RELIGION IN
THE PUBLIC SCHOOLS: A PROPOSED CONSTITUTIONAL STANDARD, 47 MINN. L.
REV. 329, 372-375 (1963).  ONE RELIGIOUS PERIODICAL HAS SUGGESTED THE
DANGER THAT "AN OBSERVANCE OF THIS SORT IS LIKELY TO DETERIORATE
QUICKLY INTO AN EMPTY FORMALITY WITH LITTLE, IF ANY, SPIRITUAL
SIGNIFICANCE.  PRESCRIBED FORMS OF THIS SORT, AS MANY COLLEGES HAVE
CONCLUDED AFTER YEARS OF COMPULSORY CHAPEL ATTENDANCE, CAN ACTUALLY
WORK AGAINST THE INCULCATION OF VITAL RELIGION."  PRAYERS IN PUBLIC
SCHOOLS OPPOSED, 69 CHRISTIAN CENTURY, JAN. 9, 1952, P. 35.    FN61
SEE CAHN, ON GOVERNMENT AND PRAYER, 37 N.Y.U.L. REV. 981, 993-994
(1962).  A LEADING PROTESTANT JOURNAL RECENTLY NOTED: 

"AGITATION FOR REMOVAL OF RELIGIOUS PRACTICES IN PUBLIC SCHOOLS IS
NOT PROMPTED OR SUPPORTED ENTIRELY BY JEWS, HUMANISTS, AND ATHEISTS. 
AT BOTH LOCAL AND NATIONAL LEVELS, MANY CHRISTIAN LEADERS, CONCERNED
BOTH FOR CIVIL RIGHTS OF MINORITIES AND FOR ADEQUATE RELIGIOUS
EDUCATION, ARE OPPOSED TO RELIGIOUS EXERCISES IN PUBLIC SCHOOLS  ...  .
MANY PERSONS, BOTH JEWS AND CHRISTIANS, BELIEVE THAT PRAYER AND BIBLE
READING ARE TOO SACRED TO BE PERMITTED IN PUBLIC SCHOOLS IN SPITE OF
THEIR POSSIBLE MORAL VALUE."  SMITH, THE RELIGIOUS CRISIS IN OUR
SCHOOLS, 128 THE EPISCOPALIAN, MAY 1963, PP. 12-13.  SEE, E.G., FOR
OTHER RECENT STATEMENTS ON THIS QUESTION, EDITORIAL, AMENDING THE
AMENDMENT, 108 AMERICA, MAY 25, 1963, P. 736; SISSEL, A CHRISTIAN VIEW:
BEHIND THE FIGHT AGAINST SCHOOL PRAYER, 27 LOOK, JUNE 18, 1963, P. 25. 

IT SHOULD BE UNNECESSARY TO DEMONSTRATE THAT THE LORD'S PRAYER, MORE
CLEARLY THAN THE REGENTS' PRAYER INVOLVED IN ENGEL V. VITALE, IS AN
ESSENTIALLY CHRISTIAN SUPPLICATION.  SEE, E.G., SCOTT, THE LORD'S
PRAYER: ITS CHARACTER, PURPOSE, AND INTERPRETATION (1951), 55;
BUTTRICK, SO WE BELIEVE, SO WE PRAY (1951), 142; LEVY, LORD'S PRAYER,
IN 7 UNIVERSAL JEWISH ENCYCLOPEDIA (1948), 192-193. 

FN62  STATEMENT OF THE BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS, IN
4 J. CHURCH AND STATE 144 (1962). 

FN63  SEE HARRISON, THE BIBLE, THE CONSTITUTION AND PUBLIC EDUCATION,
29 TENN. L. REV.  363, 397 (1962).  THE APPLICATION OF STATUTES AND
REGULATIONS WHICH FORBID COMMENT ON SCRIPTURAL PASSAGES IS FURTHER
COMPLICATED BY THE VIEW OF CERTAIN RELIGIOUS GROUPS THAT READING
WITHOUT COMMENT IS EITHER MEANINGLESS OR ACTUALLY OFFENSIVE.  COMPARE
RABBI GRAYZEL'S TESTIMONY BEFORE THE DISTRICT COURT THAT "THE BIBLE IS
MISUNDERSTOOD WHEN IT IS TAKEN WITHOUT EXPLANATION."  A RECENT SURVEY
OF THE ATTITUDES OF CERTAIN TEACHERS DISCLOSED CONCERN THAT "REFUSAL TO
ANSWER PUPIL QUESTIONS REGARDING ANY CURRICULAR ACTIVITY IS NOT
EDUCATIONALLY SOUND," AND THAT READING WITHOUT COMMENT MIGHT CREATE IN
THE MINDS OF THE PUPILS THE IMPRESSION THAT SOMETHING WAS "HIDDEN OR
WRONG."  BOLES, THE BIBLE, RELIGION, AND THE PUBLIC SCHOOLS (1961), 235
236.  COMPARE THE COMMENT OF A FOREIGN OBSERVER:  "IN NO OTHER FIELD OF
LEARNING WOULD WE EXPECT A CHILD TO DRAW THE FULL MEANING FROM WHAT HE
READS WITHOUT ACCOMPANYING EXPLANATORY COMMENT.  BUT COMMENT BY THE
TEACHER WILL INEVITABLY REVEAL HIS OWN PERSONAL PREFERENCES; AND THE
EXHIBITION OF PREFERENCES IS WHAT WE ARE SEEKING TO ELIMINATE." 
MACKINNON, FREEDOM?  - OR TOLERATION?  THE PROBLEM OF CHURCH AND STATE
IN THE UNITED STATES, (1959) PUB. LAW 374, 383. 

FN64  SEE ABBOTT, A COMMON BIBLE READER FOR PUBLIC SCHOOLS, 56
RELIGIOUS EDUCATION 20 (1961); NOTE, 22 ALBANY L. REV. 156-157 (1958);
2 STOKES, CHURCH AND STATE IN THE UNITED STATES (1950), 501-506
(DESCRIBING THE "COMMON DENOMINATOR" OR "THREE FAITHS" PLAN AND CERTAIN
PROGRAMS OF INSTRUCTION DESIGNED TO IMPLEMENT THE "COMMON CORE"
APPROACH).  THE ATTEMPTS TO EVOLVE A UNIVERSAL, NONDENOMINATIONAL
PRAYER ARE BY NO MEANS NOVEL.  SEE, E.G., MADISON'S LETTER TO EDWARD
EVERETT, MARCH 19, 1823, COMMENTING UPON A "PROJECT OF A PRAYER  ...
INTENDED TO COMPREHEND & CONCILIATE COLLEGE STUDENTS OF EVERY
(CHRISTIAN) DENOMINATION, BY A FORM COMPOSED WHOLLY OF TEXTS & PHRASES
OF SCRIPTURE."  9 WRITINGS OF JAMES MADISON (HUNT ED. 1910), 126.  FOR
A FULLER DESCRIPTION OF THIS AND OTHER ATTEMPTS TO FASHION A "COMMON
CORE" OR NONSECTARIAN EXERCISE, SEE ENGEL V. VITALE, 18 MISC. 2D 659,
660-662, 191 N.Y.S.2D 453, 459-460. 

FN65  SEE THE POLICY STATEMENT RECENTLY DRAFTED BY THE NATIONAL
COUNCIL OF THE CHURCHES OF CHRIST:  " ...  NEITHER TRUE RELIGION NOR
GOOD EDUCATION IS DEPENDENT UPON THE DEVOTIONAL USE OF THE BIBLE IN THE
PUBLIC SCHOOL PROGRAM ...  .  APART FROM THE CONSTITUTIONAL QUESTIONS
INVOLVED, ATTEMPTS TO ESTABLISH A 'COMMON CORE' OF RELIGIOUS BELIEFS TO
BE TAUGHT IN PUBLIC SCHOOLS FOR THE PURPOSE OF INDOCTRINATION ARE
UNREALISTIC AND UNWISE.  MAJOR FAITH GROUPS HAVE NOT AGREED ON A
FORMULATION OF RELIGIOUS BELIEFS COMMON TO ALL.  EVEN IF THEY HAD DONE
SO, SUCH A BODY OF RELIGIOUS DOCTRINE WOULD TEND TO BECOME A SUBSTITUTE
FOR THE MORE DEMANDING COMMITMENTS OF HISTORIC FAITHS."  WASHINGTON
POST, MAY 25, 1963, SEC. A, P. 1, COL. 4.  SEE ALSO CHOPER, RELIGION IN
THE PUBLIC SCHOOLS: A PROPOSED CONSTITUTIONAL STANDARD, 47 MINN. L.
REV. 329, 341, 368-369 (1963).  SEE ALSO HARTFORD, MORAL VALUES IN
PUBLIC EDUCATION: LESSONS FROM THE KENTUCKY EXPERIENCE (1958), 261-262;
MOEHLMAN, THE WALL OF SEPARATION BETWEEN CHURCH AND STATE (1951), 158
159.  CF. MOSK, "ESTABLISHMENT CLAUSE" CLARIFIED, 22 LAW IN TRANSITION
231, 235-236 (1963). 

FN66  QUOTED IN KURLAND, THE REGENTS' PRAYER CASE: "FULL OF SOUND AND
FURY, SIGNIFYING  ...  ," 1962 SUPREME COURT REVIEW (1962), 1, 31. 

FN67  QUOTED IN HARRISON, THE BIBLE, THE CONSTITUTION AND PUBLIC
EDUCATION, 29 TENN. L. REV.  363, 417 (1962).  SEE ALSO DAWSON,
AMERICA'S WAY IN CHURCH, STATE, AND SOCIETY (1953), 54. 

FN68  SEE THE TESTIMONY OF EDWARD L. SCHEMPP, THE FATHER OF THE
CHILDREN IN THE ABINGTON SCHOOLS AND PLAINTIFF-APPELLEE IN NO. 142,
CONCERNING HIS REASONS FOR NOT ASKING THAT HIS CHILDREN BE EXCUSED FROM
THE MORNING EXERCISES AFTER EXCUSAL WAS MADE AVAILABLE THROUGH
AMENDMENT OF THE STATUTE: 

"WE ORIGINALLY OBJECTED TO OUR CHILDREN BEING EXPOSED TO THE READING
OF THE KING JAMES VERSION OF THE BIBLE  ...  AND UNDER THOSE CONDITIONS
WE WOULD HAVE THEORETICALLY LIKED TO HAVE HAD THE CHILDREN EXCUSED. 
BUT WE FELT THAT THE PENALTY OF HAVING OUR CHILDREN LABELLED AS 'ODD
BALLS' BEFORE THEIR TEACHERS AND CLASSMATES EVERY DAY IN THE YEAR WAS
EVEN LESS SATISFACTORY THAN THE OTHER PROBLEM  ...  . 

"THE CHILDREN, THE CLASSMATES OF ROGER AND DONNA ARE VERY LIABLE TO
LABEL AND LUMP ALL PARTICULAR RELIGIOUS DIFFERENCE OR RELIGIOUS
OBJECTIONS AS ATHEISM, PARTICULARLY, TODAY THE WORD 'ATHEISM' IS SO
OFTEN TIED TO ATHEISTIC COMMUNISM, AND ATHEISM HAS VERY BAD
CONNOTATIONS IN THE MINDS OF CHILDREN AND MANY ADULTS TODAY." 

A RECENT OPINION OF THE ATTORNEY GENERAL OF CALIFORNIA GAVE AS ONE
REASON FOR FINDING DEVOTIONAL EXERCISES UNCONSTITUTIONAL THE LIKELIHOOD
THAT "CHILDREN FORCED BY CONSCIENCE TO LEAVE THE ROOM DURING SUCH
EXERCISES WOULD BE PLACED IN A POSITION INFERIOR TO THAT OF STUDENTS
ADHERING TO THE STATE-ENDORSED RELIGION."  25 CAL. OP. ATTY. GEN. 316,
319 (1955).  OTHER VIEWS ON THIS QUESTION, AND POSSIBLE EFFECTS OF THE
EXCUSAL PROCEDURES, ARE SUMMARIZED IN ROSENFIELD, SEPARATION OF CHURCH
AND STATE IN THE PUBLIC SCHOOLS, 22 U. OF PITT.  L. REV.  561, 581-585
(1961); NOTE, SEPARATION OF CHURCH AND STATE: RELIGIOUS EXERCISES IN
THE SCHOOLS, 31 U. OF CINC.  L. REV. 408, 416 (1962); NOTE, 62 W. VA.
L. REV. 353, 358 (1960). 

FN69  EXTENSIVE TESTIMONY BY BEHAVIORAL SCIENTISTS CONCERNING THE
EFFECT OF SIMILAR PRACTICES UPON CHILDREN'S ATTITUDES AND BEHAVIORS IS
DISCUSSED IN TUDOR V. BOARD OF EDUCATION, 14 N.J. 31, 50-52, 100 A.2D
857, 867-868.  SEE ALSO CHOPER, RELIGION IN THE PUBLIC SCHOOLS: A
PROPOSED CONSTITUTIONAL STANDARD, 47 MINN. L. REV. 329, 344 (1963). 
THERE APPEAR TO BE NO REPORTED EXPERIMENTS WHICH BEAR DIRECTLY UPON THE
QUESTION UNDER CONSIDERATION.  THERE HAVE, HOWEVER, BEEN NUMEROUS
EXPERIMENTS WHICH INDICATE THE SUSCEPTIBILITY OF SCHOOL CHILDREN TO
PEER-GROUP PRESSURES, ESPECIALLY WHERE IMPORTANT GROUP NORMS AND VALUES
ARE INVOLVED.  SEE, E.G., BERENDA, THE INFLUENCE OF THE GROUP ON THE
JUDGMENTS OF CHILDREN (1950), 26-33; ARGYLE, SOCIAL PRESSURE IN PUBLIC
AND PRIVATE SITUATIONS, 54 J. ABNORMAL & SOCIAL PSYCH.  172 (1957); CF.
RHINE, THE EFFECT OF PEER GROUP INFLUENCE UPON CONCEPT-ATTITUDE
DEVELOPMENT AND CHANGE, 51 J. SOCIAL PSYCH.  173 (1960); FRENCH,
MORRISON AND LEVINGER, COERCIVE POWER AND FORCES AFFECTING CONFORMITY,
61 J. ABNORMAL AND SOCIAL PSYCH.  93 (1960).  FOR A RECENT AND
IMPORTANT EXPERIMENTAL STUDY OF THE SUSCEPTIBILITY OF STUDENTS TO
VARIOUS FACTORS IN THE SCHOOL ENVIRONMENT, SEE ZANDER, CURTIS AND
ROSENFELD, THE INFLUENCE OF TEACHERS AND PEERS ON ASPIRATIONS OF YOUTH
(U.S. OFFICE OF EDUCATION COOPERATIVE RESEARCH PROJECT NO. 451, 1961),
24-25, 78-79.  IT IS ALSO APPARENT THAT THE SUSCEPTIBILITY OF SCHOOL
CHILDREN TO PRESTIGE SUGGESTION AND SOCIAL INFLUENCE WITHIN THE SCHOOL
ENVIRONMENT VARIES INVERSELY WITH THE AGE, GRADE LEVEL, AND CONSEQUENT
DEGREE OF SOPHISTICATION OF THE CHILD, SEE PATEL AND GORDON, SOME
PERSONAL AND SITUATIONAL DETERMINANTS OF YIELDING TO INFLUENCE, 61 J.
ABNORMAL AND SOCIAL PSYCH.  411, 417 (1960). 

EXPERIMENTAL FINDINGS ALSO SHED SOME LIGHT UPON THE PROBABLE
EFFECTIVENESS OF A PROVISION FOR EXCUSAL WHEN, AS IS USUALLY THE CASE,
THE PERCENTAGE OF THE CLASS WISHING NOT TO PARTICIPATE IN THE EXERCISES
IS VERY SMALL.  IT HAS BEEN DEMONSTRATED, FOR EXAMPLE, THAT THE
INCLINATION EVEN OF ADULTS TO DEPART OR DISSENT OVERTLY FROM STRONG
GROUP NORMS VARIES PROPORTIONATELY WITH THE SIZE OF THE DISSENTING
GROUP - THAT IS, INVERSELY WITH THE APPARENT OR PERCEIVED STRENGTH OF
THE NORM ITSELF - AND IS MARKEDLY SLIGHTER IN THE CASE OF THE SOLE OR
ISOLATED DISSENTER.  SEE, E.G., ASCH, STUDIES OF INDEPENDENCE AND
CONFORMITY: I, A MINORITY OF ONE AGAINST A UNANIMOUS MAJORITY (PSYCH. 
MONOGRAPHS NO. 416, 1956), 69-70; ASCH, EFFECTS OF GROUP PRESSURE UPON
THE MODIFICATION AND DISTORTION OF JUDGMENTS, IN CARTWRIGHT AND ZANDER,
GROUP DYNAMICS (2D ED. 1960), 189-199; LUCHINS AND LUCHINS, ON
CONFORMITY WITH TRUE AND FALSE COMMUNICATIONS, 42 J. SOCIAL PSYCH.  283
(1955).  RECENT IMPORTANT FINDINGS ON THESE QUESTIONS ARE SUMMARIZED IN
HARE, HANDBOOK OF SMALL GROUP RESEARCH (1962), C. II. 

FN70  SEE, ON THE GENERAL PROBLEM OF CONFLICT AND ACCOMMODATION
BETWEEN THE TWO CLAUSES, KATZ, FREEDOM OF RELIGION AND STATE
NEUTRALITY, 20 U. OF CHI.  L. REV. 426, 429 (1953); GRISWOLD, ABSOLUTE
IS IN THE DARK, 8 UTAH L. REV. 167, 176-179 (1963); KAUPER, CHURCH,
STATE, AND FREEDOM: A REVIEW, 52 MICH. L. REV. 829, 833 (1954).  ONE
AUTHOR HAS SUGGESTED THAT THE ESTABLISHMENT AND FREE EXERCISE CLAUSES
MUST BE "READ AS STATING A SINGLE PRECEPT: THAT GOVERNMENT CANNOT
UTILIZE RELIGION AS A STANDARD FOR ACTION OR INACTION BECAUSE THESE
CLAUSES, READ TOGETHER AS THEY SHOULD BE, PROHIBIT CLASSIFICATION IN
TERMS OF RELIGION EITHER TO CONFER A BENEFIT OR TO IMPOSE A BURDEN." 
KURLAND, RELIGION AND THE LAW (1962), 112.  COMPARE THE FORMULA OF
ACCOMMODATION EMBODIED IN THE AUSTRALIAN CONSTITUTION, SEC.  116: 

"THE COMMONWEALTH SHALL NOT MAKE ANY LAW FOR ESTABLISHING ANY
RELIGION, OR FOR IMPOSING ANY RELIGIOUS OBSERVANCE, OR FOR PROHIBITING
THE FREE EXERCISE OF ANY RELIGION, AND NO RELIGIOUS TEST SHALL BE
REQUIRED AS A QUALIFICATION FOR ANY OFFICE OR PUBLIC TRUST UNDER THE
COMMONWEALTH."  ESSAYS ON THE AUSTRALIAN CONSTITUTION (ELSE-MITCHELL
ED. 1961), 15. 

FN71  THERE HAS BEEN MUCH DIFFERENCE OF OPINION THROUGHOUT AMERICAN
HISTORY CONCERNING THE ADVISABILITY OF FURNISHING CHAPLAINS AT
GOVERNMENT EXPENSE.  COMPARE, E.G., WASHINGTON'S ORDER REGARDING
CHAPLAINS FOR THE CONTINENTAL ARMY, JULY 9, 1776, IN 5 WRITINGS OF
GEORGE WASHINGTON (FITZPATRICK ED. 1932), 244, WITH MADISON'S VIEWS ON
A VERY SIMILAR QUESTION, LETTER TO EDARD LIVINGSTON, JULY 10, 1822, 9
WRITINGS OF JAMES MADISON (HUNT ED. 1910), 100-103.  COMPARE ALSO THIS
STATEMENT BY THE ARMED FORCES CHAPLAINS BOARD CONCERNING THE CHAPLAIN'S
OBLIGATION: 

"TO US HAS BEEN ENTRUSTED THE SPIRITUAL AND MORAL GUIDANCE OF THE
YOUNG MEN AND WOMEN IN THE ARMED SERVICES OF THIS COUNTRY.  A CHAPLAIN
HAS MANY DUTIES - YET, FIRST AND FOREMOST IS THAT OF PRESENTING GOD TO
MEN AND WOMEN WEARING THE MILITARY UNIFORM.  WHAT HAPPENS TO THEM WHILE
THEY ARE IN MILITARY SERVICE HAS A PROFOUND EFFECT ON WHAT HAPPENS IN
THE COMMUNITY AS THEY RESUME CIVILIAN LIFE.  WE, AS CHAPLAINS, MUST
TAKE FULL COGNIZANCE OF THAT FACT AND DEDICATE OUR WORK TO MAKING THEM
FINER, SPIRITUALLY STRENGTHENED CITIZENS."  BUILDERS OF FAITH (U.S.
DEPARTMENT OF DEFENSE 1955), II.  IT IS INTERESTING TO COMPARE IN THIS
REGARD AN EXPRESS PROVISION, ARTICLE 140, OF THE WEIMAR CONSTITUTION:
"NECESSARY FREE TIME SHALL BE ACCORDED TO THE MEMBERS OF THE ARMED
FORCES FOR THE FULFILMENT OF THEIR RELIGIOUS DUTIES."  MCBAIN AND
ROGERS, THE NEW CONSTITUTIONS OF EUROPE (1922), 203. 

FN72  FOR A DISCUSSION OF SOME RECENT AND DIFFICULT PROBLEMS IN
CONNECTION WITH CHAPLAINS AND RELIGIOUS EXERCISES IN PRISONS, SEE,
E.G., PIERCE V. LA VALLEE, 293 F.2D 233; IN RE FERGUSON, 55 CAL. 2D
663, 361 P.2D 417; MCBRIDE V. MCCORKLE, 44 N.J. SUPER.  468, 130 A.2D
881; BROWN V. MCGINNIS, 10 N.Y.2D 531, 180 N.E.2D 791; DISCUSSED IN
COMMENT, 62 COL. L. REV. 1488 (1962); 75 HARV. L. REV. 837 (1962). 
COMPARE ARTICLE XVIII OF THE HAGUE CONVENTION REGULATIONS OF 1899: 

"PRISONERS OF WAR SHALL ENJOY EVERY LATITUDE IN THE EXERCISE OF THEIR
RELIGION, INCLUDING ATTENDANCE AT THEIR OWN CHURCH SERVICES, PROVIDED
ONLY THEY COMPLY WITH THE REGULATIONS FOR ORDER AND POLICE ISSUED BY
THE MILITARY AUTHORITIES."  QUOTED IN BLAKELY, AMERICAN STATE PAPERS
AND RELATED DOCUMENTS ON FREEDOM IN RELIGION (4TH REV. ED. 1949), 313. 

FN73  COMPARE GENERALLY SIBLEY AND JACOB, CONSCRIPTION OF CONSCIENCE:
THE AMERICAN STATE AND THE CONSCIENTIOUS OBJECTOR, 1940-1947 (1952),
WITH CONKLIN, CONSCIENTIOUS OBJECTOR PROVISIONS: A VIEW IN THE LIGHT OF
TORCASO V. WATKINS, 51 GEO. L.J. 252 (1963). 

FN74  SEE, E.G., SOUTHSIDE ESTATES BAPTIST CHURCH V. BOARD OF
TRUSTEES, 115 SO. 2D 697 (FLA.); LEWIS V. MANDEVILLE, 201 MISC. 120,
107 N.Y.S.2D 865; CF. SCHOOL DISTRICT NO. 97 V. SCHMIDT, 128 COLO. 495,
263 P.2D 581 (TEMPORARY LOAN OF SCHOOL DISTRICT'S CUSTODIAN TO
CHURCH).  A DIFFERENT PROBLEM MAY BE PRESENTED WITH RESPECT TO THE
REGULAR USE OF PUBLIC SCHOOL PROPERTY FOR RELIGIOUS ACTIVITIES, STATE
EX REL. GILBERT V. DILLEY, 95 NEB. 527, 145 N.W. 999; THE ERECTION ON
PUBLIC PROPERTY OF A STATUE OF OR MEMORIAL TO AN ESSENTIALLY RELIGIOUS
FIGURE, STATE EX REL. SINGELMANN V. MORRISON, 57 SO. 2D 238 (LA. APP.);
SEASONAL DISPLAYS OF A RELIGIOUS CHARACTER, BAER V. KOLMORGEN, 14 MISC.
2D 1015, 181 N.Y.S.2D 230; OR THE PERFORMANCE ON PUBLIC PROPERTY OF A
DRAMA OR OPERA BASED ON RELIGIOUS MATERIAL OR CARRYING A RELIGIOUS
MESSAGE, CF. COUNTY OF LOS ANGELES V. HOLLINGER, 200 CAL. APP. 2D 877,
19 CAL. RPTR.  648. 

FN75  COMPARE MOULTON AND MYERS, REPORT ON APPOINTING CHAPLAINS TO
THE LEGISLATURE OF NEW YORK, IN BLAU, CORNERSTONES OF RELIGIOUS FREEDOM
IN AMERICA (1949), 141-156; COMMENT, 63 COL. L. REV. 73, 97 (1963). 

FN76  A COMPREHENSIVE SURVEY OF THE PROBLEMS RAISED CONCERNING THE
ROLE OF RELIGION IN THE SECULAR CURRICULUM IS CONTAINED IN BROWN, ED.,
THE STUDY OF RELIGION IN THE PUBLIC SCHOOLS: AN APPRAISAL (1958).  SEE
ALSO KATZ, RELIGION AND AMERICAN CONSTITUTIONS, LECTURE AT NORTHWESTERN
UNIVERSITY LAW SCHOOL, MARCH 21, 1963, PP. 37-41; EDUCATIONAL POLICIES
COMM'N OF THE NATIONAL EDUCATION ASSN., MORAL AND SPIRITUAL VALUES IN
THE PUBLIC SCHOOLS (1951), 49-80.  COMPARE, FOR A CONSIDERATION OF
SIMILAR PROBLEMS IN STATE-SUPPORTED COLLEGES AND UNIVERSITIES, LOUISELL
AND JACKSON, RELIGION, THEOLOGY, AND PUBLIC HIGHER EDUCATION, 50 CAL.
L. REV. 751 (1962). 

FN77  SEE GENERALLY TORPEY, JUDICIAL DOCTRINES OF RELIGIOUS RIGHTS IN
AMERICA (1948), C. VI; VAN ALSTYNE, TAX EXEMPTION OF CHURCH PROPERTY,
20 OHIO STATE L.J. 461 (1959); SUTHERLAND, DUE PROCESS AND
DISESTABLISHMENT, 62 HARV. L. REV. 1306, 1336-1338 (1949); LOUISELL AND
JACKSON, RELIGION, THEOLOGY, AND PUBLIC HIGHER EDUCATION, 50 CAL. L.
REV. 751, 773-780 (1962); 7 DE PAUL L. REV. 206 (1958); 58 COL. L. REV.
417 (1958); 9 STAN.  L. REV. 366 (1957). 

FN78  SEE, E.G., WASHINGTON ETHICAL SOCIETY V. DISTRICT OF COLUMBIA,
101 U.S. APP. D.C.  371, 249 F.2D 127; FELLOWSHIP OF HUMANITY V. COUNTY
OF ALAMEDA, 153 CAL. APP. 2D 673, 315 P.2D 394. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE HARLAN JOINS,
CONCURRING. 

AS IS APPARENT FROM THE OPINIONS FILED TODAY, DELINEATION OF THE
CONSTITUTIONALLY PERMISSIBLE RELATIONSHIP BETWEEN RELIGION AND
GOVERNMENT IS A MOST DIFFICULT AND SENSITIVE TASK, CALLING FOR THE
CAREFUL EXERCISE OF BOTH JUDICIAL AND PUBLIC JUDGMENT AND RESTRAINT. 
THE CONSIDERATIONS WHICH LEAD THE COURT TODAY TO INTERDICT THE CLEARLY
RELIGIOUS PRACTICES PRESENTED IN THESE CASES ARE TO ME WHOLLY
COMPELLING; I HAVE NO DOUBT AS TO THE PROPRIETY OF THE DECISION AND
THEREFORE JOIN THE OPINION AND JUDGMENT OF THE COURT.  THE SINGULAR
SENSITIVITY AND CONCERN WHICH SURROUND BOTH THE LEGAL AND PRACTICAL
JUDGMENTS INVOLVED IMPEL ME, HOWEVER, TO ADD A FEW WORDS IN FURTHER
EXPLICATION, WHILE AT THE SAME TIME AVOIDING REPETITION OF THE
CAREFULLY AND ABLY FRAMED EXAMINATION OF HISTORY AND AUTHORITY BY MY
BRETHREN. 

THE FIRST AMENDMENT'S GUARANTEES, AS APPLIED TO THE STATES THROUGH
THE FOURTEENTH AMENDMENT, FORECLOSE NOT ONLY LAWS "RESPECTING AN
ESTABLISHMENT OF RELIGION" BUT ALSO THOSE "PROHIBITING THE FREE
EXERCISE THEREOF."  THESE TWO PROSCRIPTIONS ARE TO BE READ TOGETHER,
AND IN LIGHT OF THE SINGLE END WHICH THEY ARE DESIGNED TO SERVE.  THE
BASIC PURPOSE OF THE RELIGION CLAUSE OF THE FIRST AMENDMENT IS TO
PROMOTE AND ASSURE THE FULLEST POSSIBLE SCOPE OF RELIGIOUS LIBERTY AND
TOLERANCE FOR ALL AND TO NURTURE THE CONDITIONS WHICH SECURE THE BEST
HOPE OF ATTAINMENT OF THAT END. 

THE FULLEST REALIZATION OF TRUE RELIGIOUS LIBERTY REQUIRES THAT
GOVERNMENT NEITHER ENGAGE IN NOR COMPEL RELIGIOUS PRACTICES, THAT IT
EFFECT NO FAVORITISM AMONG SECTS OR BETWEEN RELIGION AND NONRELIGION,
AND THAT IT WORK DETERRENCE OF NO RELIGIOUS BELIEF.  BUT DEVOTION EVEN
TO THESE SIMPLY STATED OBJECTIVES PRESENTS NO EASY COURSE, FOR THE
UNAVOIDABLE ACCOMMODATIONS NECESSARY TO ACHIEVE THE MAXIMUM ENJOYMENT
OF EACH AND ALL OF THEM ARE OFTEN DIFFICULT OF DISCERNMENT.  THERE IS
FOR ME NO SIMPLE AND CLEAR MEASURE WHICH BY PRECISE APPLICATION CAN
READILY AND INVARIABLY DEMARK THE PERMISSIBLE FROM THE IMPERMISSIBLE. 

IT IS SAID, AND I AGREE, THAT THE ATTITUDE OF GOVERNMENT TOWARD
RELIGION MUST BE ONE OF NEUTRALITY.  BUT UNTUTORED DEVOTION TO THE
CONCEPT OF NEUTRALITY CAN LEAD TO INVOCATION OR APPROVAL OF RESULTS
WHICH PARTAKE NOT SIMPLY OF THAT NONINTERFERENCE AND NONINVOLVEMENT
WITH THE RELIGIOUS WHICH THE CONSTITUTION COMMANDS, BUT OF A BROODING
AND PERVASIVE DEVOTION TO THE SECULAR AND A PASSIVE, OR EVEN ACTIVE
HOSTILITY TO THE RELIGIOUS.  SUCH RESULTS ARE NOT ONLY NOT COMPELLED BY
THE CONSTITUTION, BUT, IT SEEMS TO ME, ARE PROHIBITED BY IT. 

NEITHER GOVERNMENT NOR THIS COURT CAN OR SHOULD IGNORE THE
SIGNIFICANCE OF THE FACT THAT A VAST PORTION OF OUR PEOPLE BELIEVE IN
AND WORSHIP GOD AND THAT MANY OF OUR LEGAL, POLITICAL AND PERSONAL
VALUES DERIVE HISTORICALLY FROM RELIGIOUS TEACHINGS.  GOVERNMENT MUST
INEVITABLY TAKE COGNIZANCE OF THE EXISTENCE OF RELIGION AND, INDEED,
UNDER CERTAIN CIRCUMSTANCES THE FIRST AMENDMENT MAY REQUIRE THAT IT DO
SO.  AND IT SEEMS CLEAR TO ME FROM THE OPINIONS IN THE PRESENT AND PAST
CASES THAT THE COURT WOULD RECOGNIZE THE PROPRIETY OF PROVIDING
MILITARY CHAPLAINS AND OF THE TEACHING ABOUT RELIGION, AS DISTINGUISHED
FROM THE TEACHING OF RELIGION, IN THE PUBLIC SCHOOLS.  THE EXAMPLES
COULD READILY BE MULTIPLIED, FOR BOTH THE REQUIRED AND THE PERMISSIBLE
ACCOMMODATIONS BETWEEN STATE AND CHURCH FRAME THE RELATION AS ONE FREE
OF HOSTILITY OR FAVOR AND PRODUCTIVE OF RELIGIOUS AND POLITICAL
HARMONY, BUT WITHOUT UNDUE INVOLVEMENT OF ONE IN THE CONCERNS OR
PRACTICES OF THE OTHER.  TO BE SURE, THE JUDGMENT IN EACH CASE IS A
DELICATE ONE, BUT IT MUST BE MADE IF WE ARE TO DO LOYAL SERVICE AS
JUDGES TO THE ULTIMATE FIRST AMENDMENT OBJECTIVE OF RELIGIOUS LIBERTY. 

THE PRACTICES HERE INVOLVED DO NOT FALL WITHIN ANY SENSIBLE OR
ACCEPTABLE CONCEPT OF COMPELLED OR PERMITTED ACCOMMODATION AND INVOLVE
THE STATE SO SIGNIFICANTLY AND DIRECTLY IN THE REALM OF THE SECTARIAN
AS TO GIVE RISE TO THOSE VERY DIVISIVE INFLUENCES AND INHIBITIONS OF
FREEDOM WHICH BOTH RELIGION CLAUSES OF THE FIRST AMENDMENT PRECLUDE. 
THE STATE HAS ORDAINED AND HAS UTILIZED ITS FACILITIES TO ENGAGE IN
UNMISTAKABLY RELIGIOUS EXERCISES - THE DEVOTIONAL READING AND
RECITATION OF THE HOLY BIBLE - IN A MANNER HAVING SUBSTANTIAL AND
SIGNIFICANT IMPORT AND IMPACT.  THAT IT HAS SELECTED, RATHER THAN
WRITTEN, A PARTICULAR DEVOTIONAL LITURGY SEEMS TO ME WITHOUT
CONSTITUTIONAL IMPORT.  THE PERVASIVE RELIGIOSITY AND DIRECT
GOVERNMENTAL INVOLVEMENT INHERING IN THE PRESCRIPTION OF PRAYER AND
BIBLE READING IN THE PUBLIC SCHOOLS, DURING AND AS PART OF THE
CURRICULAR DAY, INVOLVING YOUNG IMPRESSIONABLE CHILDREN WHOSE SCHOOL
ATTENDANCE IS STATUTORILY COMPELLED, AND UTILIZING THE PRESTIGE, POWER,
AND INFLUENCE OF SCHOOL ADMINISTRATION, STAFF, AND AUTHORITY, CANNOT
REALISTICALLY BE TERMED SIMPLY ACCOMMODATION, AND MUST FALL WITHIN THE
INTERDICTION OF THE FIRST AMENDMENT.  I FIND NOTHING IN THE OPINION OF
THE COURT WHICH SAYS MORE THAN THIS.  AND, OF COURSE, TODAY'S DECISION
DOES NOT MEAN THAT ALL INCIDENTS OF GOVERNMENT WHICH IMPORT OF THE
RELIGIOUS ARE THEREFORE AND WITHOUT MORE BANNED BY THE STRICTURES OF
THE ESTABLISHMENT CLAUSE.  AS THE COURT DECLARED ONLY LAST TERM IN
ENGEL V. VITALE, 370 U.S. 421, 435, N. 21: 

"THERE IS OF COURSE NOTHING IN THE DECISION REACHED HERE THAT IS
INCONSISTENT WITH THE FACT THAT SCHOOL CHILDREN AND OTHERS ARE
OFFICIALLY ENCOURAGED TO EXPRESS LOVE FOR OUR COUNTRY BY RECITING
HISTORICAL DOCUMENTS SUCH AS THE DECLARATION OF INDEPENDENCE WHICH
CONTAIN REFERENCES TO THE DEITY OR BY SINGING OFFICIALLY ESPOUSED
ANTHEMS WHICH INCLUDE THE COMPOSER'S PROFESSIONS OF FAITH IN A SUPREME
BEING, OR WITH THE FACT THAT THERE ARE MANY MANIFESTATIONS IN OUR
PUBLIC LIFE OF BELIEF IN GOD.  SUCH PATRIOTIC OR CEREMONIAL OCCASIONS
BEAR NO TRUE RESEMBLANCE TO THE UNQUESTIONED RELIGIOUS EXERCISE THAT
THE STATE  ...  HAS SPONSORED IN THIS INSTANCE." 

THE FIRST AMENDMENT DOES NOT PROHIBIT PRACTICES WHICH BY ANY
REALISTIC MEASURE CREATE NONE OF THE DANGERS WHICH IT IS DESIGNED TO
PREVENT AND WHICH DO NOT SO DIRECTLY OR SUBSTANTIALLY INVOLVE THE STATE
IN RELIGIOUS EXERCISES OR IN THE FAVORING OF RELIGION AS TO HAVE
MEANINGFUL AND PRACTICAL IMPACT.  IT IS OF COURSE TRUE THAT GREAT
CONSEQUENCES CAN GROW FROM SMALL BEGINNINGS, BUT THE MEASURE OF
CONSTITUTIONAL ADJUDICATION IS THE ABILITY AND WILLINGNESS TO
DISTINGUISH BETWEEN REAL THREAT AND MERE SHADOW. 

MR. JUSTICE STEWART, DISSENTING. 

I THINK THE RECORDS IN THE TWO CASES BEFORE US ARE SO FUNDAMENTALLY
DEFICIENT AS TO MAKE IMPOSSIBLE AN INFORMED OR RESPONSIBLE
DETERMINATION OF THE CONSTITUTIONAL ISSUES PRESENTED.  SPECIFICALLY, I
CANNOT AGREE THAT ON THESE RECORDS WE CAN SAY THAT THE ESTABLISHMENT
CLAUSE HAS NECESSARILY BEEN VIOLATED.  (FN1)  BUT I THINK THERE EXIST
SERIOUS QUESTIONS UNDER BOTH THAT PROVISION AND THE FREE EXERCISE
CLAUSE - INSOFAR AS EACH IS IMBEDDED IN THE FOURTEENTH AMENDMENT -
WHICH REQUIRE THE REMAND OF THESE CASES FOR THE TAKING OF ADDITIONAL
EVIDENCE. 

                       I. 

THE FIRST AMENDMENT DECLARES THAT "CONGRESS SHALL MAKE NO LAW
RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF  ...  ."  IT IS, I THINK, A FALLACIOUS
OVERSIMPLIFICATION TO REGARD THESE TWO PROVISIONS AS ESTABLISHING A
SINGLE CONSTITUTIONAL STANDARD OF "SEPARATION OF CHURCH AND STATE,"
WHICH CAN BE MECHANICALLY APPLIED IN EVERY CASE TO DELINEATE THE
REQUIRED BOUNDARIES BETWEEN GOVERNMENT AND RELIGION.  WE ERR IN THE
FIRST PLACE IF WE DO NOT RECOGNIZE, AS A MATTER OF HISTORY AND AS A
MATTER OF THE IMPERATIVES OF OUR FREE SOCIETY, THAT RELIGION AND
GOVERNMENT MUST NECESSARILY INTERACT IN COUNTLESS WAYS.  SECONDLY, THE
FACT IS THAT WHILE IN MANY CONTEXTS THE ESTABLISHMENT CLAUSE AND THE
FREE EXERCISE CLAUSE FULLY COMPLEMENT EACH OTHER, THERE ARE AREAS IN
WHICH A DOCTRINAIRE READING OF THE ESTABLISHMENT CLAUSE LEADS TO
IRRECONCILABLE CONFLICT WITH THE FREE EXERCISE CLAUSE. 

A SINGLE OBVIOUS EXAMPLE SHOULD SUFFICE TO MAKE THE POINT.  SPENDING
FEDERAL FUNDS TO EMPLOY CHAPLAINS FOR THE ARMED FORCES MIGHT BE SAID TO
VIOLATE THE ESTABLISHMENT CLAUSE.  YET A LONELY SOLDIER STATIONED AT
SOME FARAWAY OUTPOST COULD SURELY COMPLAIN THAT A GOVERNMENT WHICH DID
NOT PROVIDE HIM THE OPPORTUNITY FOR PASTORAL GUIDANCE WAS AFFIRMATIVELY
PROHIBITING THE FREE EXERCISE OF HIS RELIGION.  AND SUCH EXAMPLES COULD
READILY BE MULTIPLIED.  THE SHORT OF THE MATTER IS SIMPLY THAT THE TWO
RELEVANT CLAUSES OF THE FIRST AMENDMENT CANNOT ACCURATELY BE REFLECTED
IN A STERILE METAPHOR WHICH BY ITS VERY NATURE MAY DISTORT RATHER THAN
ILLUMINE THE PROBLEMS INVOLVED IN A PARTICULAR CASE.  CF. SHERBERT V.
VERNER, POST, P. 398. 

                      II. 

AS A MATTER OF HISTORY, THE FIRST AMENDMENT WAS ADOPTED SOLELY AS A
LIMITATION UPON THE NEWLY CREATED NATIONAL GOVERNMENT.  THE EVENTS
LEADING TO ITS ADOPTION STRONGLY SUGGEST THAT THE ESTABLISHMENT CLAUSE
WAS PRIMARILY AN ATTEMPT TO INSURE THAT CONGRESS NOT ONLY WOULD BE
POWERLESS TO ESTABLISH A NATIONAL CHURCH, BUT WOULD ALSO BE UNABLE TO
INTERFERE WITH EXISTING STATE ESTABLISHMENTS.  SEE MCGOWAN V. MARYLAND,
366 U.S. 420, 440-441.  EACH STATE WAS LEFT FREE TO GO ITS OWN WAY AND
PURSUE ITS OWN POLICY WITH RESPECT TO RELIGION.  THUS VIRGINIA FROM THE
BEGINNING PURSUED A POLICY OF DISESTABLISHMENTARIANISM.  MASSACHUSETTS,
BY CONTRAST, HAD AN ESTABLISHED CHURCH UNTIL WELL INTO THE NINETEENTH
CENTURY. 

SO MATTERS STOOD UNTIL THE ADOPTION OF THE FOURTEENTH AMENDMENT, OR
MORE ACCURATELY, UNTIL THIS COURT'S DECISION IN CANTWELL V.
CONNECTICUT, IN 1940.  310 U.S. 296.  IN THAT CASE THE COURT SAID: "THE
FIRST AMENDMENT DECLARES THAT CONGRESS SHALL MAKE NO LAW RESPECTING AN
ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF. 
THE FOURTEENTH AMENDMENT HAS RENDERED THE LEGISLATURES OF THE STATES AS
INCOMPETENT AS CONGRESS TO ENACT SUCH LAWS."  (FN2) 

I ACCEPT WITHOUT QUESTION THAT THE LIBERTY GUARANTEED BY THE
FOURTEENTH AMENDMENT AGAINST IMPAIRMENT BY THE STATES EMBRACES IN FULL
THE RIGHT OF FREE EXERCISE OF RELIGION PROTECTED BY THE FIRST
AMENDMENT, AND I YIELD TO NO ONE IN MY CONCEPTION OF THE BREADTH OF
THAT FREEDOM.  SEE BRAUNFELD V. BROWN, 366 U.S. 599, 616 (DISSENTING
OPINION).  I ACCEPT TOO THE PROPOSITION THAT THE FOURTEENTH AMENDMENT
HAS SOMEHOW ABSORBED THE ESTABLISHMENT CLAUSE, ALTHOUGH IT IS NOT
WITHOUT IRONY THAT A CONSTITUTIONAL PROVISION EVIDENTLY DESIGNED TO
LEAVE THE STATES FREE TO GO THEIR OWN WAY SHOULD NOW HAVE BECOME A
RESTRICTION UPON THEIR AUTONOMY.  BUT I CANNOT AGREE WITH WHAT SEEMS TO
ME THE INSENSITIVE DEFINITION OF THE ESTABLISHMENT CLAUSE CONTAINED IN
THE COURT'S OPINION, NOR WITH THE DIFFERENT BUT, I THINK, EQUALLY
MECHANISTIC DEFINITIONS CONTAINED IN THE SEPARATE OPINIONS WHICH HAVE
BEEN FILED. 

      III. 

SINCE THE CANTWELL PRONOUNCEMENT IN 1940, THIS COURT HAS ONLY TWICE
HELD INVALID STATE LAWS ON THE GROUND THAT THEY WERE LAWS "RESPECTING
AN ESTABLISHMENT OF RELIGION" IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203; ENGEL V.
VITALE, 370 U.S. 421.  ON THE OTHER HAND, THE COURT HAS UPHELD AGAINST
SUCH A CHALLENGE LAWS ESTABLISHING SUNDAY AS A COMPULSORY DAY OF REST,
MCGOWAN V. MARYLAND, 366 U.S. 420, AND A LAW AUTHORIZING REIMBURSEMENT
FROM PUBLIC FUNDS FOR THE TRANSPORTATION OF PAROCHIAL SCHOOL PUPILS. 
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1.    UNLIKE OTHER FIRST
AMENDMENT GUARANTEES, THERE IS AN INHERENT LIMITATION UPON THE
APPLICABILITY OF THE ESTABLISHMENT CLAUSE'S BAN ON STATE SUPPORT TO
RELIGION.  THAT LIMITATION WAS SUCCINCTLY PUT IN EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1, 18:  "STATE POWER IS NO MORE TO BE USED SO AS TO
HANDICAP RELIGIONS THAN IT IS TO FAVOR THEM."  (FN3)  AND IN A LATER
CASE, THIS COURT RECOGNIZED THAT THE LIMITATION WAS ONE WHICH WAS
ITSELF COMPELLED BY THE FREE EXERCISE GUARANTEE.  "TO HOLD THAT A STATE
CANNOT CONSISTENTLY WITH THE FIRST AND FOURTEENTH AMENDMENTS UTILIZE
ITS PUBLIC SCHOOL SYSTEM TO AID ANY OR ALL RELIGIOUS FAITHS OR SECTS IN
THE DISSEMINATION OF THEIR DOCTRINES AND IDEALS DOES NOT ...  MANIFEST
A GOVERNMENTAL HOSTILITY TO RELIGION OR RELIGIOUS TEACHINGS.  A
MANIFESTATION OF SUCH HOSTILITY WOULD BE AT WAR WITH OUR NATIONAL
TRADITION AS EMBODIED IN THE FIRST AMENDMENT'S GUARANTY OF THE FREE
EXERCISE OF RELIGION."  MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203,
211-212. 

THAT THE CENTRAL VALUE EMBODIED IN THE FIRST AMENDMENT - AND, MORE
PARTICULARLY, IN THE GUARANTEE OF "LIBERTY" CONTAINED IN THE FOURTEENTH
- IS THE SAFEGUARDING OF AN INDIVIDUAL'S RIGHT TO FREE EXERCISE OF HIS
RELIGION HAS BEEN CONSISTENTLY RECOGNIZED.  THUS, IN THE CASE OF
HAMILTON V. REGENTS, 293 U.S. 245, 265, MR. JUSTICE CARDOZO,
CONCURRING, ASSUMED THAT IT WAS "  ...  THE RELIGIOUS LIBERTY PROTECTED
BY THE FIRST AMENDMENT AGAINST INVASION BY THE NATION WHICH IS
PROTECTED BY THE FOURTEENTH AMENDMENT AGAINST INVASION BY THE STATES." 
AND IN CANTWELL V. CONNECTICUT, SUPRA, THE PURPOSE OF THOSE GUARANTEES
WAS DESCRIBED IN THE FOLLOWING TERMS:  "ON THE ONE HAND, IT FORESTALLS
COMPULSION BY LAW OF THE ACCEPTANCE OF ANY CREED OR THE PRACTICE OF ANY
FORM OF WORSHIP.  FREEDOM OF CONSCIENCE AND FREEDOM TO ADHERE TO SUCH
RELIGIOUS ORGANIZATION OR FORM OF WORSHIP AS THE INDIVIDUAL MAY CHOOSE
CANNOT BE RESTRICTED BY LAW.  ON THE OTHER HAND, IT SAFEGUARDS THE FREE
EXERCISE OF THE CHOSEN FORM OF RELIGION."  310 U.S., AT 303. 

IT IS THIS CONCEPT OF CONSTITUTIONAL PROTECTION EMBODIED IN OUR
DECISIONS WHICH MAKES THE CASES BEFORE US SUCH DIFFICULT ONES FOR ME.
FOR THERE IS INVOLVED IN THESE CASES A SUBSTANTIAL FREE EXERCISE CLAIM
ON THE PART OF THOSE WHO AFFIRMATIVELY DESIRE TO HAVE THEIR CHILDREN'S
SCHOOL DAY OPEN WITH THE READING OF PASSAGES FROM THE BIBLE. 

IT HAS BECOME ACCEPTED THAT THE DECISION IN PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510, UPHOLDING THE RIGHT OF PARENTS TO SEND THEIR
CHILDREN TO NONPUBLIC SCHOOLS, WAS ULTIMATELY BASED UPON THE
RECOGNITION OF THE VALIDITY OF THE FREE EXERCISE CLAIM INVOLVED IN THAT
SITUATION.  IT MIGHT BE ARGUED HERE THAT PARENTS WHO WANTED THEIR
CHILDREN TO BE EXPOSED TO RELIGIOUS INFLUENCES IN SCHOOL COULD, UNDER
PIERCE, SEND THEIR CHILDREN TO PRIVATE OR PAROCHIAL SCHOOLS.  BUT THE
CONSIDERATION WHICH RENDERS THIS CONTENTION TOO FACILE TO BE
DETERMINATIVE HAS ALREADY BEEN RECOGNIZED BY THE COURT:  "FREEDOM OF
SPEECH, FREEDOM OF THE PRESS, FREEDOM OF RELIGION ARE AVAILABLE TO ALL,
NOT MERELY TO THOSE WHO CAN PAY THEIR OWN WAY."  MURDOCK V.
PENNSYLVANIA, 319 U.S. 105, 111. 

IT MIGHT ALSO BE ARGUED THAT PARENTS WHO WANT THEIR CHILDREN EXPOSED
TO RELIGIOUS INFLUENCES CAN ADEQUATELY FULFILL THAT WISH OFF SCHOOL
PROPERTY AND OUTSIDE SCHOOL TIME.  WITH ALL ITS SURFACE PERSUASIVENESS,
HOWEVER, THIS ARGUMENT SERIOUSLY MISCONCEIVES THE BASIC CONSTITUTIONAL
JUSTIFICATION FOR PERMITTING THE EXERCISES AT ISSUE IN THESE CASES. 
FOR A COMPULSORY STATE EDUCATIONAL SYSTEM SO STRUCTURES A CHILD'S LIFE
THAT IF RELIGIOUS EXERCISES ARE HELD TO BE AN IMPERMISSIBLE ACTIVITY IN
SCHOOLS, RELIGION IS PLACED AT AN ARTIFICIAL AND STATE-CREATED
DISADVANTAGE.  VIEWED IN THIS LIGHT, PERMISSION OF SUCH EXERCISES FOR
THOSE WHO WANT THEM IS NECESSARY IF THE SCHOOLS ARE TRULY TO BE NEUTRAL
IN THE MATTER OF RELIGION.  AND A REFUSAL TO PERMIT RELIGIOUS EXERCISES
THUS IS SEEN, NOT AS THE REALIZATION OF STATE NEUTRALITY, BUT RATHER AS
THE ESTABLISHMENT OF A RELIGION OF SECULARISM, OR AT THE LEAST, AS
GOVERNMENT SUPPORT OF THE BELIEFS OF THOSE WHO THINK THAT RELIGIOUS
EXERCISES SHOULD BE CONDUCTED ONLY IN PRIVATE. 

WHAT SEEMS TO ME TO BE OF PARAMOUNT IMPORTANCE, THEN, IS RECOGNITION
OF THE FACT THAT THE CLAIM ADVANCED HERE IN FAVOR OF BIBLE READING IS
SUFFICIENTLY SUBSTANTIAL TO MAKE SIMPLE REFERENCE TO THE CONSTITUTIONAL
PHRASE "ESTABLISHMENT OF RELIGION" AS INADEQUATE AN ANALYSIS OF THE
CASES BEFORE US AS THE RITUALISTIC INVOCATION OF THE NONCONSTITUTIONAL
PHRASE "SEPARATION OF CHURCH AND STATE."  WHAT THESE CASES COMPEL,
RATHER, IS AN ANALYSIS OF JUST WHAT THE "NEUTRALITY" IS WHICH IS
REQUIRED BY THE INTERPLAY OF THE ESTABLISHMENT AND FREE EXERCISE
CLAUSES OF THE FIRST AMENDMENT, AS IMBEDDED IN THE FOURTEENTH. 

                                 IV. 

OUR DECISIONS MAKE CLEAR THAT THERE IS NO CONSTITUTIONAL BAR TO THE
USE OF GOVERNMENT PROPERTY FOR RELIGIOUS PURPOSES.  ON THE CONTRARY,
THIS COURT HAS CONSISTENTLY HELD THAT THE DISCRIMINATORY BARRING OF
RELIGIOUS GROUPS FROM PUBLIC PROPERTY IS ITSELF A VIOLATION OF FIRST
AND FOURTEENTH AMENDMENT GUARANTEES.  FOWLER V. RHODE ISLAND, 345 U.S.
67; NIEMOTKO V. MARYLAND, 340 U.S. 268.  A DIFFERENT STANDARD HAS BEEN
APPLIED TO PUBLIC SCHOOL PROPERTY, BECAUSE OF THE COERCIVE EFFECT WHICH
THE USE BY RELIGIOUS SECTS OF A COMPULSORY SCHOOL SYSTEM WOULD
NECESSARILY HAVE UPON THE CHILDREN INVOLVED.  MCCOLLUM V. BOARD OF
EDUCATION, 333 U.S. 203.  BUT INSOFAR AS THE MCCOLLUM DECISION RESTS ON
THE ESTABLISHMENT RATHER THAN THE FREE EXERCISE CLAUSE, IT IS CLEAR
THAT ITS EFFECT IS LIMITED TO RELIGIOUS INSTRUCTION - TO GOVERNMENT
SUPPORT OF PROSELYTIZING ACTIVITIES OF RELIGIOUS SECTS BY THROWING THE
WEIGHT OF SECULAR AUTHORITY BEHIND THE DISSEMINATION OF RELIGIOUS
TENETS.  (FN4) 

THE DANGERS BOTH TO GOVERNMENT AND TO RELIGION INHERENT IN OFFICIAL
SUPPORT OF INSTRUCTION IN THE TENETS OF VARIOUS RELIGIOUS SECTS ARE
ABSENT IN THE PRESENT CASES, WHICH INVOLVE ONLY A READING FROM THE
BIBLE UNACCOMPANIED BY COMMENTS WHICH MIGHT OTHERWISE CONSTITUTE
INSTRUCTION.  INDEED, SINCE, FROM ALL THAT APPEARS IN EITHER RECORD,
ANY TEACHER WHO DOES NOT WISH TO DO SO IS FREE NOT TO PARTICIPATE,
(FN5) IT CANNOT EVEN BE CONTENDED THAT SOME INFINITESIMAL PART OF THE
SALARIES PAID BY THE STATE ARE MADE CONTINGENT UPON THE PERFORMANCE OF
A RELIGIOUS FUNCTION. 

IN THE ABSENCE OF EVIDENCE THAT THE LEGISLATURE OR SCHOOL BOARD
INTENDED TO PROHIBIT LOCAL SCHOOLS FROM SUBSTITUTING A DIFFERENT SET OF
READINGS WHERE PARENTS REQUESTED SUCH A CHANGE, WE SHOULD NOT ASSUME
THAT THE PROVISIONS BEFORE US - AS ACTUALLY ADMINISTERED - MAY NOT BE
CONSTRUED SIMPLY AS AUTHORIZING RELIGIOUS EXERCISES, NOR THAT THE
DESIGNATIONS MAY NOT BE TREATED SIMPLY AS INDICATIONS OF THE
PROMULGATING BODY'S VIEW AS TO THE COMMUNITY'S PREFERENCE.  WE ARE
UNDER A DUTY TO INTERPRET THESE PROVISIONS SO AS TO RENDER THEM
CONSTITUTIONAL IF REASONABLY POSSIBLE.  COMPARE TWO GUYS V. MCGINLEY,
366 U.S. 582, 592-595; EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 4,
AND N.2.  IN THE SCHEMPP CASE THERE IS EVIDENCE WHICH INDICATES THAT
VARIATIONS WERE IN FACT PERMITTED BY THE VERY SCHOOL THERE INVOLVED,
AND THAT FURTHER VARIATIONS WERE NOT INTRODUCED ONLY BECAUSE OF THE
ABSENCE OF REQUESTS FROM PARENTS.  AND IN THE MURRAY CASE THE BALTIMORE
RULE ITSELF CONTAINS A PROVISION PERMITTING ANOTHER VERSION OF THE
BIBLE TO BE SUBSTITUTED FOR THE KING JAMES VERSION. 

IF THE PROVISIONS ARE NOT SO CONSTRUED, I THINK THAT THEIR VALIDITY
UNDER THE ESTABLISHMENT CLAUSE WOULD BE EXTREMELY DOUBTFUL, BECAUSE OF
THE DESIGNATION OF A PARTICULAR RELIGIOUS BOOK AND A DENOMINATIONAL
PRAYER.  BUT SINCE, EVEN IF THE PROVISIONS ARE CONSTRUED AS I BELIEVE
THEY MUST BE, I THINK THAT THE CASES BEFORE US MUST BE REMANDED FOR
FURTHER EVIDENCE ON OTHER ISSUES - THUS AFFORDING THE PLAINTIFFS AN
OPPORTUNITY TO PROVE THAT LOCAL VARIATIONS ARE NOT IN FACT PERMITTED -
I SHALL FOR THE BALANCE OF THIS DISSENTING OPINION TREAT THE PROVISIONS
BEFORE US AS MAKING THE VARIETY AND CONTENT OF THE EXERCISES, AS WELL
AS A CHOICE AS TO THEIR IMPLEMENTATION, MATTERS WHICH ULTIMATELY
REFLECT THE CONSENSUS OF EACH LOCAL SCHOOL COMMUNITY.  IN THE ABSENCE
OF COERCION UPON THOSE WHO DO NOT WISH TO PARTICIPATE - BECAUSE THEY
HOLD LESS STRONG BELIEFS, OTHER BELIEFS, OR NO BELIEFS AT ALL - SUCH
PROVISIONS CANNOT, IN MY VIEW, BE HELD TO REPRESENT THE TYPE OF SUPPORT
OF RELIGION BARRED BY THE ESTABLISHMENT CLAUSE.  FOR THE ONLY SUPPORT
WHICH SUCH RULES PROVIDE FOR RELIGION IS THE WITHHOLDING OF STATE
HOSTILITY - A SIMPLE ACKNOWLEDGMENT ON THE PART OF SECULAR AUTHORITIES
THAT THE CONSTITUTION DOES NOT REQUIRE EXTIRPATION OF ALL EXPRESSION OF
RELIGIOUS BELIEF. 

            V. 

I HAVE SAID THAT THESE PROVISIONS AUTHORIZING RELIGIOUS EXERCISES ARE
PROPERLY TO BE REGARDED AS MEASURES MAKING POSSIBLE THE FREE EXERCISE
OF RELIGION.  BUT IT IS IMPORTANT TO STRESS THAT, STRICTLY SPEAKING,
WHAT IS AT ISSUE HERE IS A PRIVILEGE RATHER THAN A RIGHT.  IN OTHER
WORDS, THE QUESTION PRESENTED IS NOT WHETHER EXERCISES SUCH AS THOSE AT
ISSUE HERE ARE CONSTITUTIONALLY COMPELLED, BUT RATHER WHETHER THEY ARE
CONSTITUTIONALLY INVALID.  AND THAT ISSUE, IN MY VIEW, TURNS ON THE
QUESTION OF COERCION. 

IT IS CLEAR THAT THE DANGERS OF COERCION INVOLVED IN THE HOLDING OF
RELIGIOUS EXERCISES IN A SCHOOLROOM DIFFER QUALITATIVELY FROM THOSE
PRESENTED BY THE USE OF SIMILAR EXERCISES OR AFFIRMATIONS IN CEREMONIES
ATTENDED BY ADULTS.  EVEN AS TO CHILDREN, HOWEVER, THE DUTY LAID UPON
GOVERNMENT IN CONNECTION WITH RELIGIOUS EXERCISES IN THE PUBLIC SCHOOLS
IS THAT OF REFRAINING FROM SO STRUCTURING THE SCHOOL ENVIRONMENT AS TO
PUT ANY KIND OF PRESSURE ON A CHILD TO PARTICIPATE IN THOSE EXERCISES;
IT IS NOT THAT OF PROVIDING AN ATMOSPHERE IN WHICH CHILDREN ARE KEPT
SCRUPULOUSLY INSULATED FROM ANY AWARENESS THAT SOME OF THEIR FELLOWS
MAY WANT TO OPEN THE SCHOOL DAY WITH PRAYER, OR OF THE FACT THAT THERE
EXIST IN OUR PLURALISTIC SOCIETY DIFFERENCES OF RELIGIOUS BELIEF. 

THESE ARE NOT, IT MUST BE STRESSED, CASES LIKE BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, IN WHICH THIS COURT HELD THAT, IN THE SPHERE
OF PUBLIC EDUCATION, THE FOURTEENTH AMENDMENT'S GUARANTEE OF EQUAL
PROTECTION OF THE LAWS REQUIRED THAT RACE NOT BE TREATED AS A RELEVANT
FACTOR.  A SEGREGATED SCHOOL SYSTEM IS NOT INVALID BECAUSE ITS
OPERATION IS COERCIVE; IT IS INVALID SIMPLY BECAUSE OUR CONSTITUTION
PRESUPPOSES THAT MEN ARE CREATED EQUAL, AND THAT THEREFORE RACIAL
DIFFERENCES CANNOT PROVIDE A VALID BASIS FOR GOVERNMENTAL ACTION. 
ACCOMMODATION OF RELIGIOUS DIFFERENCES ON THE PART OF THE STATE,
HOWEVER, IS NOT ONLY PERMITTED BUT REQUIRED BY THAT SAME CONSTITUTION. 

THE GOVERNMENTAL NEUTRALITY WHICH THE FIRST AND FOURTEENTH AMENDMENTS
REQUIRE IN THE CASES BEFORE US, IN OTHER WORDS, IS THE EXTENSION OF
EVENHANDED TREATMENT TO ALL WHO BELIEVE, DOUBT, OR DISBELIEVE - A
REFUSAL ON THE PART OF THE STATE TO WEIGHT THE SCALES OF PRIVATE
CHOICE.  IN THESE CASES, THEREFORE, WHAT IS INVOLVED IS NOT STATE
ACTION BASED ON IMPERMISSIBLE CATEGORIES, BUT RATHER AN ATTEMPT BY THE
STATE TO ACCOMMODATE THOSE DIFFERENCES WHICH THE EXISTENCE IN OUR
SOCIETY OF A VARIETY OF RELIGIOUS BELIEFS MAKES INEVITABLE.  THE
CONSTITUTION REQUIRES THAT SUCH EFFORTS BE STRUCK DOWN ONLY IF THEY ARE
PROVEN TO ENTAIL THE USE OF THE SECULAR AUTHORITY OF GOVERNMENT TO
COERCE A PREFERENCE AMONG SUCH BELIEFS. 

IT MAY WELL BE, AS HAS BEEN ARGUED TO US, THAT EVEN THE SUPPOSED
BENEFITS TO BE DERIVED FROM NONCOERCIVE RELIGIOUS EXERCISES IN PUBLIC
SCHOOLS ARE INCOMMENSURATE WITH THE ADMINISTRATIVE PROBLEMS WHICH THEY
WOULD CREATE.  THE CHOICE INVOLVED, HOWEVER, IS ONE FOR EACH LOCAL
COMMUNITY AND ITS SCHOOL BOARD, AND NOT FOR THIS COURT.  FOR, AS I HAVE
SAID, RELIGIOUS EXERCISES ARE NOT CONSTITUTIONALLY INVALID IF THEY
SIMPLY REFLECT DIFFERENCES WHICH EXIST IN THE SOCIETY FROM WHICH THE
SCHOOL DRAWS ITS PUPILS.  THEY BECOME CONSTITUTIONALLY INVALID ONLY IF
THEIR ADMINISTRATION PLACES THE SANCTION OF SECULAR AUTHORITY BEHIND
ONE OR MORE PARTICULAR RELIGIOUS OR IRRELIGIOUS BELIEFS. 

TO BE SPECIFIC, IT SEEMS TO ME CLEAR THAT CERTAIN TYPES OF EXERCISES
WOULD PRESENT SITUATIONS IN WHICH NO POSSIBILITY OF COERCION ON THE
PART OF SECULAR OFFICIALS COULD BE CLAIMED TO EXIST.  THUS, IF SUCH
EXERCISES WERE HELD EITHER BEFORE OR AFTER THE OFFICIAL SCHOOL DAY, OR
IF THE SCHOOL SCHEDULE WERE SUCH THAT PARTICIPATION WERE MERELY ONE
AMONG A NUMBER OF DESIRABLE ALTERNATIVES, (FN6) IT COULD HARDLY BE
CONTENDED THAT THE EXERCISES DID ANYTHING MORE THAN TO PROVIDE AN
OPPORTUNITY FOR THE VOLUNTARY EXPRESSION OF RELIGIOUS BELIEF.  ON THE
OTHER HAND, A LAW WHICH PROVIDED FOR RELIGIOUS EXERCISES DURING THE
SCHOOL DAY AND WHICH CONTAINED NO EXCUSAL PROVISION WOULD OBVIOUSLY BE
UNCONSTITUTIONALLY COERCIVE UPON THOSE WHO DID NOT WISH TO
PARTICIPATE.  AND EVEN UNDER A LAW CONTAINING AN EXCUSAL PROVISION, IF
THE EXERCISES WERE HELD DURING THE SCHOOL DAY, AND NO EQUALLY DESIRABLE
ALTERNATIVE WERE PROVIDED BY THE SCHOOL AUTHORITIES, THE LIKELIHOOD
THAT CHILDREN MIGHT BE UNDER AT LEAST SOME PSYCHOLOGICAL COMPULSION TO
PARTICIPATE WOULD BE GREAT.  IN A CASE SUCH AS THE LATTER, HOWEVER, I
THINK WE WOULD ERR IF WE ASSUMED SUCH COERCION IN THE ABSENCE OF ANY
EVIDENCE.  (FN7)

             VI. 

VIEWED IN THIS LIGHT, IT SEEMS TO ME CLEAR THAT THE RECORDS IN BOTH
OF THE CASES BEFORE US ARE WHOLLY INADEQUATE TO SUPPORT AN INFORMED OR
RESPONSIBLE DECISION.  BOTH CASES INVOLVE PROVISIONS WHICH EXPLICITLY
PERMIT ANY STUDENT WHO WISHES, TO BE EXCUSED FROM PARTICIPATION IN THE
EXERCISES.  THERE IS NO EVIDENCE IN EITHER CASE AS TO WHETHER THERE
WOULD EXIST ANY COERCION OF ANY KIND UPON A STUDENT WHO DID NOT WANT TO
PARTICIPATE.  NO EVIDENCE AT ALL WAS ADDUCED IN THE MURRAY CASE,
BECAUSE IT WAS DECIDED UPON A DEMURRER.  ALL THAT WE HAVE IN THAT CASE,
THEREFORE, IS THE CONCLUSORY LANGUAGE OF A PLEADING.  WHILE SUCH
CONCLUSORY ALLEGATIONS ARE ACCEPTABLE FOR PROCEDURAL PURPOSES, I THINK
THAT THE NATURE OF THE CONSTITUTIONAL PROBLEM INVOLVED HERE CLEARLY
DEMANDS THAT NO DECISION BE MADE EXCEPT UPON EVIDENCE.  IN THE SCHEMPP
CASE THE RECORD SHOWS NO MORE THAN A SUBJECTIVE PROPHECY BY A PARENT OF
WHAT HE THOUGHT WOULD HAPPEN IF A REQUEST WERE MADE TO BE EXCUSED FROM
PARTICIPATION IN THE EXERCISES UNDER THE AMENDED STATUTE.  NO SUCH
REQUEST WAS EVER MADE, AND THERE IS NO EVIDENCE WHATEVER AS TO WHAT
MIGHT OR WOULD ACTUALLY HAPPEN, NOR OF WHAT ADMINISTRATIVE ARRANGEMENTS
THE SCHOOL ACTUALLY MIGHT OR COULD MAKE TO FREE FROM PRESSURE OF ANY
KIND THOSE WHO DO NOT WANT TO PARTICIPATE IN THE EXERCISES.  THERE WERE
NO DISTRICT COURT FINDINGS ON THIS ISSUE, SINCE THE CASE UNDER THE
AMENDED STATUTE WAS DECIDED EXCLUSIVELY ON ESTABLISHMENT CLAUSE
GROUNDS.  201 F. SUPP 815. 

WHAT OUR CONSTITUTION INDISPENSABLY PROTECTS IS THE FREEDOM OF EACH
OF US, BE HE JEW OR AGNOSTIC, CHRISTIAN OR ATHEIST, BUDDHIST OR
FREETHINKER, TO BELIEVE OR DISBELIEVE, TO WORSHIP OR NOT WORSHIP, TO
PRAY OR KEEP SILENT, ACCORDING TO HIS OWN CONSCIENCE, UNCOERCED AND
UNRESTRAINED BY GOVERNMENT.  IT IS CONCEIVABLE THAT THESE SCHOOL
BOARDS, OR EVEN ALL SCHOOL BOARDS, MIGHT EVENTUALLY FIND IT IMPOSSIBLE
TO ADMINISTER A SYSTEM OF RELIGIOUS EXERCISES DURING SCHOOL HOURS IN
SUCH A WAY AS TO MEET THIS CONSTITUTIONAL STANDARD - IN SUCH A WAY AS
COMPLETELY TO FREE FROM ANY KIND OF OFFICIAL COERCION THOSE WHO DO NOT
AFFIRMATIVELY WANT TO PARTICIPATE.  (FN8)  BUT I THINK WE MUST NOT
ASSUME THAT SCHOOL BOARDS SO LACK THE QUALITIES OF INVENTIVENESS AND
GOOD WILL AS TO MAKE IMPOSSIBLE THE ACHIEVEMENT OF THAT GOAL. 

I WOULD REMAND BOTH CASES FOR FURTHER HEARINGS. 

FN1  IT IS INSTRUCTIVE, IN THIS CONNECTION, TO EXAMINE THE COMPLAINTS
IN THE TWO CASES BEFORE US. NEITHER COMPLAINT ATTACKS THE CHALLENGED
PRACTICES AS "ESTABLISHMENTS."  WHAT BOTH ALLEGE AS THE BASIS FOR THEIR
CAUSES OF ACTIONS ARE, RATHER, VIOLATIONS OF RELIGIOUS LIBERTY. 

FN2  310 U.S., AT 303.  THE COURT'S STATEMENT AS TO THE ESTABLISHMENT
CLAUSE IN CANTWELL WAS DICTUM.  THE CASE WAS DECIDED ON FREE EXERCISE
GROUNDS. 

FN3  SEE ALSO, IN THIS CONNECTION, ZORACH V. CLAUSON, 343 U.S. 306,
314:  "GOVERNMENT MAY NOT FINANCE RELIGIOUS GROUPS NOR UNDERTAKE
RELIGIOUS INSTRUCTION NOR BLEND SECULAR AND SECTARIAN EDUCATION NOR USE
SECULAR INSTITUTIONS TO FORCE ONE OR SOME RELIGION ON ANY PERSON.  BUT
WE FIND NO CONSTITUTIONAL REQUIREMENT WHICH MAKES IT NECESSARY FOR
GOVERNMENT TO BE HOSTILE TO RELIGION AND TO THROW ITS WEIGHT AGAINST
EFFORTS TO WIDEN THE EFFECTIVE SCOPE OF RELIGIOUS INFLUENCE." 

FN4  "THIS IS BEYOND ALL QUESTION A UTILIZATION OF THE TAX
ESTABLISHED AND TAX-SUPPORTED PUBLIC SCHOOL SYSTEM TO AID RELIGIOUS
GROUPS TO SPREAD THEIR FAITH."  MCCOLLUM V. BOARD OF EDUCATION, 333
U.S. 203, 210. 

FN5  THE PENNSYLVANIA STATUTE WAS SPECIFICALLY AMENDED TO REMOVE THE
COMPULSION UPON TEACHERS.  ACT OF DECEMBER 17, 1959, P.L. 1928, 24
PURDON'S PA. STAT. ANN. SEC. 15-1516.  SINCE THE MARYLAND CASE IS HERE
ON A DEMURRER, THE ISSUE OF WHETHER OR NOT A TEACHER COULD BE DISMISSED
FOR REFUSAL TO PARTICIPATE SEEMS, AMONG MANY OTHERS, NEVER TO HAVE BEEN
RAISED. 

FN6  SEE, E.G., THE DESCRIPTION OF A PLAN PERMITTING RELIGIOUS
INSTRUCTION OFF SCHOOL PROPERTY CONTAINED IN MCCOLLUM V. BOARD OF
EDUCATION, 333 U.S. 203, 224 (SEPARATE OPINION OF MR. JUSTICE
FRANKFURTER). 

FN7  CF. "THE TASK OF SEPARATING THE SECULAR FROM THE RELIGIOUS IN
EDUCATION IS ONE OF MAGNITUDE, INTRICACY AND DELICACY.  TO LAY DOWN A
SWEEPING CONSTITUTIONAL DOCTRINE AS DEMANDED BY COMPLAINANT AND
APPARENTLY APPROVED BY THE COURT, APPLICABLE ALIKE TO ALL SCHOOL BOARDS
OF THE NATION,  ...  IS TO DECREE A UNIFORM, RIGID AND, IF WE ARE
CONSISTENT, AN UNCHANGING STANDARD FOR COUNTLESS SCHOOL BOARDS
REPRESENTING AND SERVING HIGHLY LOCALIZED GROUPS WHICH NOT ONLY DIFFER
FROM EACH OTHER BUT WHICH THEMSELVES FROM TIME TO TIME CHANGE
ATTITUDES.  IT SEEMS TO ME THAT TO DO SO IS TO ALLOW ZEAL FOR OUR OWN
IDEAS OF WHAT IS GOOD IN PUBLIC INSTRUCTION TO INDUCE US TO ACCEPT THE
ROLE OF A SUPER BOARD OF EDUCATION FOR EVERY SCHOOL DISTRICT IN THE
NATION."  MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 237 (CONCURRING
OPINION OF MR. JUSTICE JACKSON). 

FN8  FOR EXAMPLE, IF THE RECORD IN THE SCHEMPP CASE CONTAINED PROOF
(RATHER THAN MERE PROPHECY) THAT THE TIMING OF MORNING ANNOUNCEMENTS BY
THE SCHOOL WAS SUCH AS TO HANDICAP CHILDREN WHO DID NOT WANT TO LISTEN
TO THE BIBLE READING, OR THAT THE EXCUSAL PROVISION WAS SO ADMINISTERED
AS TO CARRY ANY OVERTONES OF SOCIAL INFERIORITY, THEN IMPERMISSIBLE
COERCION WOULD CLEARLY EXIST. 
..END :



UNITED STATES V. PHILADELPHIA NATIONAL BANK 374 U.S. 321 


NO. 83.  ARGUED FEBRUARY 20-21, 1963 - DECIDED JUNE 17, 1963 - 201 F.
SUPP. 348, REVERSED. 


APPELLEES, A NATIONAL BANK AND A STATE BANK, ARE THE SECOND AND THIRD
LARGEST OF THE 42 COMMERCIAL BANKS IN THE METROPOLITAN AREA CONSISTING
OF PHILADELPHIA AND ITS THREE CONTIGUOUS COUNTIES, AND THEY HAVE
BRANCHES THROUGHOUT THAT AREA.  APPELLEES' BOARDS OF DIRECTORS APPROVED
AN AGREEMENT FOR THEIR CONSOLIDATION, UNDER WHICH THE NATIONAL BANK'S
STOCKHOLDERS WOULD RETAIN THEIR STOCK CERTIFICATES, WHICH WOULD
REPRESENT SHARES IN THE CONSOLIDATED BANK, WHILE THE STATE BANK'S
STOCKHOLDERS WOULD SURRENDER THEIR SHARES IN EXCHANGE FOR SHARES IN THE
CONSOLIDATED BANK.  AFTER OBTAINING REPORTS, AS REQUIRED BY THE BANK
MERGER ACT OF 1960, FROM THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE
SYSTEM, THE FEDERAL DEPOSIT INSURANCE CORPORATION AND THE ATTORNEY
GENERAL, ALL OF WHOM ADVISED THAT THE PROPOSED MERGER WOULD
SUBSTANTIALLY LESSEN COMPETITION IN THE AREA, THE COMPTROLLER OF THE
CURRENCY APPROVED IT.  THE UNITED STATES SUED TO ENJOIN CONSUMMATION OF
THE PROPOSED CONSOLIDATION, ON THE GROUND, INTER ALIA, THAT IT WOULD
VIOLATE SEC. 7 OF THE CLAYTON ACT.  HELD:  THE PROPOSED CONSOLIDATION
OF APPELLEE BANKS IS FORBIDDEN BY SEC. 7 OF THE CLAYTON ACT, AND IT
MUST BE ENJOINED.  PP. 323-372. 

1.  BY THE AMENDMENTS TO SEC. 7 OF THE CLAYTON ACT ENACTED IN 1950,
CONGRESS INTENDED TO CLOSE A LOOPHOLE IN THE ORIGINAL SECTION BY
BROADENING ITS SCOPE SO AS TO COVER THE ENTIRE RANGE OF CORPORATE
AMALGAMATIONS, FROM PURE STOCK ACQUISITIONS TO PURE ACQUISITIONS OF
ASSETS, AND IT DID NOT INTEND TO EXCLUDE BANK MERGERS.  PP. 335-349. 

2.  THE BANK MERGER ACT OF 1960, BY DIRECTING THE BANKING AGENCIES TO
CONSIDER COMPETITIVE FACTORS BEFORE APPROVING MERGERS, DID NOT IMMUNIZE
MERGERS APPROVED BY THEM FROM OPERATION OF THE FEDERAL ANTITRUST LAWS;
AND THE DOCTRINE OF PRIMARY JURISDICTION IS NOT APPLICABLE HERE. 
CALIFORNIA V. FEDERAL POWER COMMISSION, 369 U.S. 482.  PP. 350-355. 

3.  THE PROPOSED CONSOLIDATION OF APPELLEE BANKS WOULD VIOLATE SEC. 7
OF THE CLAYTON ACT, AND IT MUST BE ENJOINED.  PP. 355-372. 

(A)  THE "LINE OF COMMERCE" HERE INVOLVED IS COMMERCIAL BANKING.  PP.
355-357. 

(B)  THE "SECTION OF THE COUNTRY" WHICH IS RELEVANT HERE IS THE
METROPOLITAN AREA CONSISTING OF PHILADELPHIA AND ITS THREE CONTIGUOUS
COUNTIES.  PP. 357-362. 

(C)  THE CONSOLIDATED BANK WOULD CONTROL SUCH AN UNDUE PERCENTAGE
SHARE OF THE RELEVANT MARKET (AT LEAST 30%) AND THE CONSOLIDATION WOULD
RESULT IN SUCH A SIGNIFICANT INCREASE IN THE CONCENTRATION OF
COMMERCIAL BANKING FACILITIES IN THE AREA (33%) THAT THE RESULT WOULD
BE INHERENTLY LIKELY TO LESSEN COMPETITION SUBSTANTIALLY, AND THERE IS
NO EVIDENCE IN THE RECORD TO SHOW THAT IT WOULD NOT DO SO. PP. 362
367. 

(D)  THE FACTS THAT COMMERCIAL BANKING IS SUBJECT TO A HIGH DEGREE OF
GOVERNMENTAL REGULATION AND THAT IT DEALS WITH THE INTANGIBLES OF
CREDIT AND SERVICES, RATHER THAN IN THE MANUFACTURE OR SALE OF TANGIBLE
COMMODITIES, DO NOT IMMUNIZE IT FROM THE ANTICOMPETITIVE EFFECTS OF
UNDUE CONCENTRATION.  PP. 368-370. 

(E)  THIS PROPOSED CONSOLIDATION CANNOT BE JUSTIFIED ON THE THEORY
THAT ONLY THROUGH MERGERS CAN BANKS FOLLOW THEIR CUSTOMERS TO THE
SUBURBS AND RETAIN THEIR BUSINESS, SINCE THIS CAN BE ACCOMPLISHED BY
ESTABLISHING NEW BRANCHES IN THE SUBURBS.  P. 370. 

(F)  THIS PROPOSED CONSOLIDATION CANNOT BE JUSTIFIED ON THE GROUND
THAT THE INCREASED LENDING LIMIT WOULD ENABLE THE CONSOLIDATED BANK TO
COMPETE WITH THE LARGE OUT-OF-STATE BANKS, PARTICULARLY THE NEW YORK
BANKS, FOR VERY LARGE LOANS.  PP. 370-371. 

(G)  THIS PROPOSED CONSOLIDATION CANNOT BE JUSTIFIED ON THE GROUND
THAT PHILADELPHIA NEEDS A BANK LARGER THAN IT NOW HAS IN ORDER TO BRING
BUSINESS TO THE AREA AND STIMULATE ITS ECONOMIC DEVELOPMENT.  P. 371. 

(H)  THIS COURT REJECTS APPELLEES' PERVASIVE SUGGESTION THAT
APPLICATION OF THE PROCOMPETITIVE POLICY OF SEC. 7 TO THE BANKING
INDUSTRY WILL HAVE DIRE, ALTHOUGH UNSPECIFIED, CONSEQUENCES FOR THE
NATIONAL ECONOMY.  PP. 371-372. 

UNITED STATES V. PHILADELPHIA NATIONAL BANK ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES, APPELLANT HERE, BROUGHT THIS CIVIL ACTION IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNDER SEC. 4 OF THE SHERMAN ACT, 15 U.S.C. SEC. 4, AND SEC. 15 OF THE
CLAYTON ACT, 15 U.S.C. SEC. 25, TO ENJOIN A PROPOSED MERGER OF THE
PHILADELPHIA NATIONAL BANK (PNB) AND GIRARD TRUST CORN EXCHANGE BANK
(GIRARD), APPELLEES HERE.  THE COMPLAINT CHARGED VIOLATIONS OF SEC. 1
OF THE SHERMAN ACT, 15 U.S.C. SEC. 1, AND SEC. 7 OF THE CLAYTON ACT, 15
U.S.C. SEC. 18.  (FN1)  FROM A JUDGMENT FOR APPELLEES AFTER TRIAL, SEE
201 F. SUPP. 348, THE UNITED STATES APPEALED TO THIS COURT UNDER SEC. 2
OF THE EXPEDITING ACT, 15 U.S.C. SEC. 29.  PROBABLE JURISDICTION WAS
NOTED.  369 U.S. 883.  WE REVERSE THE JUDGMENT OF THE DISTRICT COURT. 
WE HOLD THAT THE MERGER OF APPELLEES IS FORBIDDEN BY SEC. 7 OF THE
CLAYTON ACT AND SO MUST BE ENJOINED; WE NEED NOT, AND THEREFORE DO NOT,
REACH THE FURTHER QUESTION OF ALLEGED VIOLATION OF SEC. 1 OF THE
SHERMAN ACT. 

                    I. THE FACTS AND PROCEEDINGS BELOW. 

A. THE BACKGROUND:  COMMERCIAL BANKING IN THE UNITED STATES. 

BECAUSE THIS IS THE FIRST CASE WHICH HAS REQUIRED THIS COURT TO
CONSIDER THE APPLICATION OF THE ANTITRUST LAWS TO THE COMMERCIAL
BANKING INDUSTRY, AND BECAUSE ASPECTS OF THE INDUSTRY AND OF THE DEGREE
OF GOVERNMENTAL REGULATION OF IT WILL RECUR THROUGHOUT OUR DISCUSSION,
WE DEEM IT APPROPRIATE TO BEGIN WITH A BRIEF BACKGROUND DESCRIPTION. 
(FN2) 

COMMERCIAL BANKING IN THIS COUNTRY IS PRIMARILY UNIT BANKING.  THAT
IS, CONTROL OF COMMERCIAL BANKING IS DIFFUSED THROUGHOUT A VERY LARGE
NUMBER OF INDEPENDENT, LOCAL BANKS - 13,460 OF THEM IN 1960 - RATHER
THAN CONCENTRATED IN A HANDFUL OF NATIONWIDE BANKS, AS, FOR EXAMPLE, IN
ENGLAND AND GERMANY.  THERE ARE, TO BE SURE, IN ADDITION TO THE
INDEPENDENT BANKS, SOME 10,000 BRANCH BANKS; BUT BRANCHING, WHICH IS
CONTROLLED LARGELY BY STATE LAW - AND PROHIBITED ALTOGETHER BY SOME
STATES - ENABLES A BANK TO EXTEND ITSELF ONLY TO STATE LINES AND OFTEN
NOT THAT FAR.  (FN3)  IT IS ALSO THE CASE, OF COURSE, THAT MANY BANKS
PLACE LOANS AND SOLICIT DEPOSITS OUTSIDE THEIR HOME AREA.  BUT WITH
THESE QUALIFICATIONS, IT REMAINS TRUE THAT OURS IS ESSENTIALLY A
DECENTRALIZED SYSTEM OF COMMUNITY BANKS.  RECENT YEARS, HOWEVER, HAVE
WITNESSED A DEFINITE TREND TOWARD CONCENTRATION.  THUS, DURING THE
DECADE ENDING IN 1960 THE NUMBER OF COMMERCIAL BANKS IN THE UNITED
STATES DECLINED BY 714, DESPITE THE CHARTERING OF 887 NEW BANKS AND A
VERY SUBSTANTIAL INCREASE IN THE NATION'S CREDIT NEEDS DURING THE
PERIOD.  OF THE 1,601 INDEPENDENT BANKS WHICH THUS DISAPPEARED, 1,503,
WITH COMBINED TOTAL RESOURCES OF WELL OVER $25,000,000,000, DISAPPEARED
AS THE RESULT OF MERGERS. 

COMMERCIAL BANKS ARE UNIQUE AMONG FINANCIAL INSTITUTIONS IN THAT THEY
ALONE ARE PERMITTED BY LAW TO ACCEPT DEMAND DEPOSITS.  THIS DISTINCTIVE
POWER GIVES COMMERCIAL BANKING A KEY ROLE IN THE NATIONAL ECONOMY.  FOR
BANKS DO NOT MERELY DEAL IN, BUT ARE ACTUALLY A SOURCE OF, MONEY AND
CREDIT; WHEN A BANK MAKES A LOAN BY CREDITING THE BORROWER'S DEMAND
DEPOSIT ACCOUNT, IT AUGMENTS THE NATION'S CREDIT SUPPLY.  (FN4)
FURTHERMORE, THE POWER TO ACCEPT DEMAND DEPOSITS MAKES BANKS THE
INTERMEDIARIES IN MOST FINANCIAL TRANSACTIONS (SINCE TRANSFERS OF
SUBSTANTIAL MONEYS ARE ALMOST ALWAYS BY CHECK RATHER THAN BY CASH) AND,
CONCOMITANTLY, THE REPOSITORIES OF VERY SUBSTANTIAL INDIVIDUAL AND
CORPORATE FUNDS.  THE BANKS' USE OF THESE FUNDS IS CONDITIONED BY THE
FACT THAT THEIR WORKING CAPITAL CONSISTS VERY LARGELY OF DEMAND
DEPOSITS, WHICH MAKES LIQUIDITY THE GUIDING PRINCIPLE OF BANK LENDING
AND INVESTING POLICIES; THUS IT IS THAT BANKS ARE THE CHIEF SOURCE OF
THE COUNTRY'S SHORT-TERM BUSINESS CREDIT. 

BANKING OPERATIONS ARE VARIED AND COMPLEX; "COMMERCIAL BANKING"
DESCRIBES A CONGERIES OF SERVICES AND CREDIT DEVICES.  (FN5)  BUT AMONG
THEM THE CREATION OF ADDITIONAL MONEY AND CREDIT, THE MANAGEMENT OF THE
CHECKING-ACCOUNT SYSTEM, AND THE FURNISHING OF SHORT-TERM BUSINESS
LOANS WOULD APPEAR TO BE THE MOST IMPORTANT.  FOR THE PROPER DISCHARGE
OF THESE FUNCTIONS IS INDISPENSABLE TO A HEALTHY NATIONAL ECONOMY, AS
THE ROLE OF BANK FAILURES IN DEPRESSION PERIODS ATTESTS.  IT IS
THEREFORE NOT SURPRISING THAT COMMERCIAL BANKING IN THE UNITED STATES
IS SUBJECT TO A VARIETY OF GOVERNMENTAL CONTROLS, STATE AND FEDERAL. 
FEDERAL REGULATION IS THE MORE EXTENSIVE, AND OUR FOCUS WILL BE UPON
IT.  IT EXTENDS NOT ONLY TO THE NATIONAL BANKS, I.E., BANKS CHARTERED
UNDER FEDERAL LAW AND SUPERVISED BY THE COMPTROLLER OF THE CURRENCY,
SEE 12 U.S.C. SEC. 21 ET SEQ. FOR MANY STATE BANKS, SEE 12 U.S.C. SEC.
321, AS WELL AS VIRTUALLY ALL THE NATIONAL BANKS, 12 U.S.C.  SEC. 222,
ARE MEMBERS OF THE FEDERAL RESERVE SYSTEM (FRS), AND MORE THAN 95% OF
ALL BANKS, SEE 12 U.S.C. SEC. 1815, ARE INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION (FDIC).  STATE MEMBER AND NONMEMBER INSURED BANKS
ARE SUBJECT TO A FEDERAL REGULATORY SCHEME ALMOST AS ELABORATE AS THAT
WHICH GOVERNS THE NATIONAL BANKS. 

THE GOVERNMENTAL CONTROLS OF AMERICAN BANKING ARE MANIFOLD.  FIRST,
THE FEDERAL RESERVE SYSTEM, THROUGH ITS OPEN-MARKET OPERATIONS, SEE 12
U.S.C. SECS. 263(C), 353-359, CONTROL OF THE REDISCOUNT RATE, SEE 12
U.S.C. SEC. 357, AND MODIFICATIONS OF RESERVE REQUIREMENTS, SEE 12
U.S.C. SECS. 462, 462B, REGULATES THE SUPPLY OF MONEY AND CREDIT IN THE
ECONOMY AND THEREBY INDIRECTLY REGULATES THE INTEREST RATES OF BANK
LOANS.  THIS IS NOT, HOWEVER, RATE REGULATION.  THE RESERVE SYSTEM'S
ACTIVITIES ARE ONLY DESIGNED TO INFLUENCE THE PRIME, I.E., MINIMUM,
BANK INTEREST RATE.  THERE IS NO FEDERAL CONTROL OF THE MAXIMUM,
ALTHOUGH ALL BANKS, STATE AND NATIONAL, ARE SUBJECT TO STATE USURY LAWS
WHERE APPLICABLE.  SEE 12 U.S.C. SEC. 85.  IN THE RANGE BETWEEN THE
MAXIMUM FIXED BY STATE USURY LAWS AND THE PRACTICAL MINIMUM SET BY
FEDERAL FISCAL POLICIES (THERE IS NO LAW AGAINST UNDERCUTTING THE PRIME
RATE BUT BANKERS SELDOM DO), BANKERS ARE FREE TO PRICE THEIR LOANS AS
THEY CHOOSE.  MOREOVER, CHARGES FOR OTHER BANKING SERVICES, SUCH AS
SERVICE CHARGES FOR CHECKING PRIVILEGES, ARE FREE OF GOVERNMENTAL
REGULATION, STATE OR FEDERAL. 

ENTRY, BRANCHING, AND ACQUISITIONS ARE COVERED BY A NETWORK OF STATE
AND FEDERAL STATUTES.  A CHARTER FOR A NEW BANK, STATE OR NATIONAL,
WILL NOT BE GRANTED UNLESS THE INVESTED CAPITAL AND MANAGEMENT OF THE
APPLICANT, AND ITS PROSPECTS FOR DOING SUFFICIENT BUSINESS TO OPERATE
AT A REASONABLE PROFIT, GIVE ADEQUATE PROTECTION AGAINST UNDUE
COMPETITION AND POSSIBLE FAILURE.  SEE, E.G., 12 U.S.C. SECS. 26, 27,
51; 12 CFR SEC. 4.1(B); PA. STAT.  ANN., TIT. 7, SEC. 819-306.  FAILURE
TO MEET THESE STANDARDS MAY CAUSE THE FDIC TO REFUSE AN APPLICATION FOR
INSURANCE, 12 U.S.C. SECS. 1815, 1816, AND MAY CAUSE THE FDIC, FEDERAL
RESERVE BOARD (FRB), AND COMPTROLLER TO REFUSE PERMISSION TO BRANCH TO
INSURED, MEMBER, AND NATIONAL BANKS, RESPECTIVELY.  12 U.S.C. SECS. 36,
321, 1828(D).  PERMISSION TO MERGE, CONSOLIDATE, ACQUIRE ASSETS, OR
ASSUME LIABILITIES MAY BE REFUSED BY THE AGENCIES ON THE SAME GROUNDS. 
12 U.S.C. (1958 ED., SUPP. IV) SEC. 1828(C), NOTE 8, INFRA. 
FURTHERMORE, NATIONAL BANKS APPEAR TO BE SUBJECT TO STATE GEOGRAPHICAL
LIMITATIONS ON BRANCHING.  SEE 12 U.S.C. SEC. 36(C). 

BANKS ARE ALSO SUBJECT TO A NUMBER OF SPECIFIC PROVISIONS AIMED AT
ENSURING SOUND BANKING PRACTICES.  FOR EXAMPLE, MEMBER BANKS OF THE
FEDERAL RESERVE SYSTEM MAY NOT PAY INTEREST ON DEMAND DEPOSITS, 12
U.S.C. SEC. 371A, MAY NOT INVEST IN COMMON STOCKS OR HOLD FOR THEIR OWN
ACCOUNT INVESTMENT SECURITIES OF ANY ONE OBLIGOR IN EXCESS OF 10% OF
THE BANK'S UNIMPAIRED CAPITAL AND SURPLUS, SEE 12 U.S.C. SECS. 24
SEVENTH, 335, AND MAY NOT PAY INTEREST ON TIME OR SAVINGS DEPOSITS
ABOVE THE RATE FIXED BY THE FRB, 12 U.S.C.  SEC. 371B.  THE PAYMENT OF
INTEREST ON DEPOSITS BY NONMEMBER INSURED BANKS IS ALSO FEDERALLY
REGULATED.  12 U.S.C. (1958 ED., SUPP. IV) SEC. 1828(G); 12 CFR, 1962
SUPP., PART 329.  IN THE CASE OF NATIONAL BANKS, THE 10% LIMIT ON THE
OBLIGATIONS OF A SINGLE OBLIGOR INCLUDES LOANS AS WELL AS INVESTMENT
SECURITIES.  SEE 12 U.S.C. SEC. 84.  PENNSYLVANIA IMPOSES THE SAME
LIMITATION UPON BANKS CHARTERED UNDER ITS LAWS, SUCH AS GIRARD.  PA.
STAT.  ANN. (1961 SUPP.), TIT. 7, SEC. 819-1006. 

BUT PERHAPS THE MOST EFFECTIVE WEAPON OF FEDERAL REGULATION OF
BANKING IS THE BROAD VISITATORIAL POWER OF FEDERAL BANK EXAMINERS. 
WHENEVER THE AGENCIES DEEM IT NECESSARY, THEY MAY ORDER "A THOROUGH
EXAMINATION OF ALL THE AFFAIRS OF THE BANK," WHETHER IT BE A MEMBER OF
THE FRS OR A NONMEMBER INSURED BANK.  12 U.S.C. SECS. 325, 481, 483,
1820(B); 12 CFR SEC. 4.2.  SUCH EXAMINATIONS ARE FREQUENT AND
INTENSIVE.  IN ADDITION, THE BANKS ARE REQUIRED TO FURNISH DETAILED
PERIODIC REPORTS OF THEIR OPERATIONS TO THE SUPERVISORY AGENCIES.  12
U.S.C. SECS. 161, 324, 1820(E).  IN THIS WAY THE AGENCIES MAINTAIN
VIRTUALLY A DAY-TO-DAY SURVEILLANCE OF THE AMERICAN BANKING SYSTEM. 
AND SHOULD THEY DISCOVER UNSOUND BANKING PRACTICES, THEY ARE EQUIPPED
WITH A FORMIDABLE ARRAY OF SANCTIONS.  IF IN THE JUDGMENT OF THE FRB A
MEMBER BANK IS MAKING "UNDUE USE OF BANK CREDIT," THE BOARD MAY SUSPEND
THE BANK FROM THE USE OF THE CREDIT FACILITIES OF THE FRS.  12 U.S.C.
SEC. 301.  THE FDIC HAS AN EVEN MORE FORMIDABLE POWER.  IF IT FINDS
"UNSAFE OR UNSOUND PRACTICES" IN THE CONDUCT OF THE BUSINESS OF ANY
INSURED BANK, IT MAY TERMINATE THE BANK'S INSURED STATUS.  12 U.S.C.
SEC. 1818(A).  SUCH INVOLUNTARY TERMINATION SEVERS THE BANK'S
MEMBERSHIP IN THE FRS, IF IT IS A STATE BANK, AND THROWS IT INTO
RECEIVERSHIP IF IT IS A NATIONAL BANK.  12 U.S.C. SEC. 1818(B). 
LESSER, BUT NEVERTHELESS DRASTIC, SANCTIONS INCLUDE PUBLICATION OF THE
RESULTS OF BANK EXAMINATIONS.   12 U.S.C. SECS. 481, 1828(F).  AS A
RESULT OF THE EXISTENCE OF THIS PANOPLY OF SANCTIONS, RECOMMENDATIONS
BY THE AGENCIES CONCERNING BANKING PRACTICES TEND TO BE FOLLOWED BY
BANKERS WITHOUT THE NECESSITY OF FORMAL COMPLIANCE PROCEEDINGS.  1
DAVIS, ADMINISTRATIVE LAW (1958), SEC. 4.04. 

FEDERAL SUPERVISION OF BANKING HAS BEEN CALLED "PROBABLY THE
OUTSTANDING EXAMPLE IN THE FEDERAL GOVERNMENT OF REGULATION OF AN
ENTIRE INDUSTRY THROUGH METHODS OF SUPERVISION  ...  .  THE SYSTEM MAY
BE ONE OF THE MOST SUCCESSFUL (SYSTEMS OF ECONOMIC REGULATION), IF NOT
THE MOST SUCCESSFUL."  ID., SEC. 4.04, AT 247.  TO THE EFFICACY OF THIS
SYSTEM WE MAY OWE, IN PART, THE VIRTUAL DISAPPEARANCE OF BANK FAILURES
FROM THE AMERICAN ECONOMIC SCENE.  (FN6) 

B. THE PROPOSED MERGER OF PNB AND GIRARD. 

THE PHILADELPHIA NATIONAL BANK AND GIRARD TRUST CORN EXCHANGE BANK
ARE, RESPECTIVELY, THE SECOND AND THIRD LARGEST OF THE 42 COMMERCIAL
BANKS WITH HEAD OFFICES IN THE PHILADELPHIA METROPOLITAN AREA, WHICH
CONSISTS OF THE CITY OF PHILADELPHIA AND ITS THREE CONTIGUOUS COUNTIES
IN PENNSYLVANIA.  THE HOME COUNTY OF BOTH BANKS IS THE CITY ITSELF;
PENNSYLVANIA LAW, HOWEVER, PERMITS BRANCHING INTO THE COUNTIES
CONTIGUOUS TO THE HOME COUNTY, PA.  STAT. ANN. (1961 SUPP.), TIT. 7,
SEC. 819-204.1, AND BOTH BANKS HAVE OFFICES THROUGHOUT THE FOUR-COUNTY
AREA.  PNB, A NATIONAL BANK, HAS ASSETS OF OVER $1,000,000,000, MAKING
IT (AS OF 1959) THE TWENTY-FIRST LARGEST BANK IN THE NATION.  GIRARD, A
STATE BANK, IS A MEMBER OF THE FRS AND IS INSURED BY THE FDIC; IT HAS
ASSETS OF ABOUT $750,000,000.  WERE THE PROPOSED MERGER TO BE
CONSUMMATED, THE RESULTING BANK WOULD BE THE LARGEST IN THE FOUR-COUNTY
AREA, WITH (APPROXIMATELY) 36% OF THE AREA BANKS' TOTAL ASSETS, 36% OF
DEPOSITS, AND 34% OF NET LOANS.  IT AND THE SECOND LARGEST (FIRST
PENNSYLVANIA BANK AND TRUST COMPANY, NOW THE LARGEST) WOULD HAVE
BETWEEN THEM 59% OF THE TOTAL ASSETS, 58% OF DEPOSITS, AND 58% OF THE
NET LOANS, WHILE AFTER THE MERGER THE FOUR LARGEST BANKS IN THE AREA
WOULD HAVE 78% OF TOTAL ASSETS, 77% OF DEPOSITS, AND 78% OF NET LOANS. 

THE PRESENT SIZE OF BOTH PNB AND GIRARD IS IN PART THE RESULT OF
MERGERS.  INDEED, THE TREND TOWARD CONCENTRATION IS NOTICEABLE IN THE
PHILADELPHIA AREA GENERALLY, IN WHICH THE NUMBER OF COMMERCIAL BANKS
HAS DECLINED FROM 108 IN 1947 TO THE PRESENT 42.  SINCE 1950, PNB HAS
ACQUIRED NINE FORMERLY INDEPENDENT BANKS AND GIRARD SIX; AND THESE
ACQUISITIONS HAVE ACCOUNTED FOR 59% AND 85% OF THE RESPECTIVE BANKS'
ASSET GROWTH DURING THE PERIOD, 63% AND 91% OF THEIR DEPOSIT GROWTH,
AND 12% AND 37% OF THEIR LOAN GROWTH.  DURING THIS PERIOD, THE SEVEN
LARGEST BANKS IN THE AREA INCREASED THEIR COMBINED SHARE OF THE AREA'S
TOTAL COMMERCIAL BANK RESOURCES FROM ABOUT 61% TO ABOUT 90%. 

IN NOVEMBER 1960 THE BOARDS OF DIRECTORS OF THE TWO BANKS APPROVED A
PROPOSED AGREEMENT FOR THEIR CONSOLIDATION UNDER THE PNB CHARTER.  BY
THE TERMS OF THE AGREEMENT, PNB'S STOCKHOLDERS WERE TO RETAIN THEIR
SHARE CERTIFICATES, WHICH WOULD BE DEEMED TO REPRESENT AN EQUAL NUMBER
OF SHARES IN THE CONSOLIDATED BANK, WHILE GIRARD'S STOCKHOLDERS WOULD
SURRENDER THEIR SHARES IN EXCHANGE FOR SHARES IN THE CONSOLIDATED BANK,
RECEIVING 1.2875 SUCH SHARES FOR EACH GIRARD SHARE.  SUCH A
CONSOLIDATION IS AUTHORIZED, SUBJECT TO THE APPROVAL OF THE COMPTROLLER
OF THE CURRENCY, BY 12 U.S.C. (1958 ED., SUPP. IV) SEC. 215.  (FN7)
BUT UNDER THE BANK MERGER ACT OF 1960, 12 U.S.C. (1963 ED., SUPP. IV)
SEC. 1828(C), THE COMPTROLLER MAY NOT GIVE HIS APPROVAL UNTIL HE HAS
RECEIVED REPORTS FROM THE OTHER TWO BANKING AGENCIES AND THE ATTORNEY
GENERAL RESPECTING THE PROBABLE EFFECTS OF THE PROPOSED TRANSACTION ON
COMPETITION.  (FN8)  ALL THREE REPORTS ADVISED THAT THE PROPOSED MERGER
WOULD HAVE SUBSTANTIAL ANTICOMPETITIVE EFFECTS IN THE PHILADELPHIA
METROPOLITAN AREA.  HOWEVER, ON FEBRUARY 24, 1961, THE COMPTROLLER
APPROVED THE MERGER.  NO OPINION WAS RENDERED AT THAT TIME.  BUT AS
REQUIRED BY SEC. 1828(C), THE COMPTROLLER EXPLAINED THE BASIS FOR HIS
DECISION TO APPROVE THE MERGER IN A STATEMENT TO BE INCLUDED IN HIS
ANNUAL REPORT TO CONGRESS.  AS TO EFFECT UPON COMPETITION, HE REASONED
THAT "SINCE THERE WILL REMAIN AN ADEQUATE NUMBER OF ALTERNATIVE SOURCES
OF BANKING SERVICE IN PHILADELPHIA, AND IN VIEW OF THE BENEFICIAL
EFFECTS OF THIS CONSOLIDATION UPON INTERNATIONAL AND NATIONAL
COMPETITION IT WAS CONCLUDED THAT THE OVER-ALL EFFECT UPON COMPETITION
WOULD NOT BE UNFAVORABLE."  HE ALSO STATED THAT THE CONSOLIDATED BANK
"WOULD BE FAR BETTER ABLE TO SERVE THE CONVENIENCE AND NEEDS OF ITS
COMMUNITY BY BEING OF MATERIAL ASSISTANCE TO ITS CITY AND STATE IN
THEIR EFFORTS TO ATTRACT NEW INDUSTRY AND TO RETAIN EXISTING
INDUSTRY."  THE DAY AFTER THE COMPTROLLER APPROVED THE MERGER, THE
UNITED STATES COMMENCED THE PRESENT ACTION.  NO STEPS HAVE BEEN TAKEN
TO CONSUMMATE THE MERGER PENDING THE OUTCOME OF THIS LITIGATION. 

C. THE TRIAL AND THE DISTRICT COURT'S DECISION. 

THE GOVERNMENT'S CASE IN THE DISTRICT COURT RELIED CHIEFLY ON
STATISTICAL EVIDENCE BEARING UPON MARKET STRUCTURE AND ON TESTIMONY BY
ECONOMISTS AND BANKERS TO THE EFFECT THAT, NOTWITHSTANDING THE
INTENSIVE GOVERNMENTAL REGULATION OF BANKING, THERE WAS A SUBSTANTIAL
AREA FOR THE FREE PLAY OF COMPETITIVE FORCES; THAT CONCENTRATION OF
COMMERCIAL BANKING, WHICH THE PROPOSED MERGER WOULD INCREASE, WAS
INIMICAL TO THAT FREE PLAY; THAT THE PRINCIPAL ANTICOMPETITIVE EFFECT
OF THE MERGER WOULD BE FELT IN THE AREA IN WHICH THE BANKS HAD THEIR
OFFICES, THUS MAKING THE FOUR-COUNTY METROPOLITAN AREA THE RELEVANT
GEOGRAPHICAL MARKET; AND THAT COMMERCIAL BANKING WAS THE RELEVANT
PRODUCT MARKET.  THE DEFENDANTS, IN ADDITION TO OFFERING CONTRARY
EVIDENCE ON THESE POINTS, ATTEMPTED TO SHOW BUSINESS JUSTIFICATIONS FOR
THE MERGER.  THEY CONCEDED THAT BOTH BANKS WERE ECONOMICALLY STRONG AND
HAD SOUND MANAGEMENT, BUT OFFERED THE TESTIMONY OF BANKERS TO SHOW THAT
THE RESULTING BANK, WITH ITS GREATER PRESTIGE AND INCREASED LENDING
LIMIT, (FN9) WOULD BE BETTER ABLE TO COMPETE WITH LARGE OUT-OF-STATE
(PARTICULARLY NEW YORK) BANKS, WOULD ATTRACT NEW BUSINESS TO
PHILADELPHIA, AND IN GENERAL WOULD PROMOTE THE ECONOMIC DEVELOPMENT OF
THE METROPOLITAN AREA.  (FN10) 

UPON THIS RECORD, THE DISTRICT COURT HELD THAT:  (1) THE PASSAGE OF
THE BANK MERGER ACT OF 1960 DID NOT REPEAL BY IMPLICATION THE ANTITRUST
LAWS INSOFAR AS THEY MAY APPLY TO BANK MERGERS; (2) SEC. 7 OF THE
CLAYTON ACT IS INAPPLICABLE TO BANK MERGERS BECAUSE BANKS ARE NOT
CORPORATIONS "SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION"; (3) BUT ASSUMING THAT SEC. 7 IS APPLICABLE, THE FOUR
COUNTY PHILADELPHIA METROPOLITAN AREA IS NOT THE RELEVANT GEOGRAPHICAL
MARKET BECAUSE PNB AND GIRARD ACTIVELY COMPETE WITH OTHER BANKS FOR
BANK BUSINESS THROUGHOUT THE GREATER PART OF THE NORTHEASTERN UNITED
STATES; (4) BUT EVEN ASSUMING THAT SEC. 7 IS APPLICABLE AND THAT THE
FOUR-COUNTY AREA IS THE RELEVANT MARKET, THERE IS NO REASONABLE
PROBABILITY THAT COMPETITION AMONG COMMERCIAL BANKS IN THE AREA WILL BE
SUBSTANTIALLY LESSENED AS THE RESULT OF THE MERGER; (5) SINCE THE
MERGER DOES NOT VIOLATE SEC. 7 OF THE CLAYTON ACT, A FORTIORI IT DOES
NOT VIOLATE SEC. 1 OF THE SHERMAN ACT; (6) THE MERGER WILL BENEFIT THE
PHILADELPHIA METROPOLITAN AREA ECONOMICALLY.  THE DISTRICT COURT ALSO
RULED THAT FOR THE PURPOSES OF SEC. 7, COMMERCIAL BANKING IS A LINE OF
COMMERCE; THE APPELLEES DO NOT CONTEST THIS RULING. 

               II.  THE APPLICABILITY OF SECTION 7 OF THE CLAYTON

ACT TO BANK MERGERS. 

A. THE ORIGINAL SECTION AND THE 1950 AMENDMENT. 

BY ITS TERMS, THE PRESENT SEC. 7 REACHES ACQUISITIONS OF CORPORATE
STOCK OR SHARE CAPITAL BY ANY CORPORATION ENGAGED IN COMMERCE, BUT IT
REACHES ACQUISITIONS OF CORPORATE ASSETS ONLY BY CORPORATIONS "SUBJECT
TO THE JURISDICTION OF THE FEDERAL TRADE COMMISSION."  THE FTC, UNDER
SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, HAS NO JURISDICTION OVER
BANKS.  15 U.S.C. SEC. 45(A)(6).  (FN11) THEREFORE, IF THE PROPOSED
MERGER BE DEEMED AN ASSETS ACQUISITION, IT IS NOT WITHIN SEC. 7. 
(FN12) APPELLANT ARGUES VIGOROUSLY THAT A MERGER IS CRUCIALLY DIFFERENT
FROM A PURE ASSETS ACQUISITION, (FN13) AND APPELLEES ARGUE WITH EQUAL
VIGOR THAT IT IS CRUCIALLY DIFFERENT FROM A PURE STOCK ACQUISITION. 
(FN14)  BOTH POSITIONS, WE THINK, HAVE MERIT; A MERGER FITS NEITHER
CATEGORY NEATLY.  SINCE THE LITERAL TERMS OF SEC. 7 THUS DO NOT DISPOSE
OF OUR QUESTION, WE MUST DETERMINE WHETHER A CONGRESSIONAL DESIGN TO
EMBRACE BANK MERGERS IS REVEALED IN THE HISTORY OF THE STATUTE.  THE
QUESTION APPEARS TO BE ONE OF FIRST IMPRESSION; WE HAVE BEEN DIRECTED
TO NO PREVIOUS CASE IN WHICH A MERGER OR CONSOLIDATION WAS CHALLENGED
UNDER SEC. 7 OF THE CLAYTON ACT, AS AMENDED, WHERE THE ACQUIRING
CORPORATION WAS NOT SUBJECT TO THE FTC'S JURISDICTION. 

WHEN IT WAS FIRST ENACTED IN 1914, SEC. 7 REFERRED ONLY TO CORPORATE
ACQUISITIONS OF STOCK AND SHARE CAPITAL; IT WAS SILENT AS TO ASSETS
ACQUISITIONS AND AS TO MERGERS AND CONSOLIDATIONS.  ACT OF OCTOBER 15,
1914, C. 323, SEC. 7, 38 STAT. 731-732, NOTE 18, INFRA.  IT IS TRUE
THAT THE OMISSION MAY NOT HAVE BEEN AN OVERSIGHT.  CONGRESS' PRINCIPAL
CONCERN WAS WITH THE ACTIVITIES OF HOLDING COMPANIES, AND SPECIFICALLY
WITH THE PRACTICE WHEREBY CORPORATIONS SECRETLY ACQUIRED CONTROL OF
THEIR COMPETITORS BY PURCHASING THE STOCK OF THOSE COMPANIES.  ALTHOUGH
ASSETS ACQUISITIONS AND MERGERS WERE KNOWN FORMS OF CORPORATE
AMALGAMATION AT THE TIME, THEIR NO LESS DANGEROUSLY ANTICOMPETITIVE
EFFECTS MAY NOT HAVE BEEN FULLY APPARENT TO THE CONGRESS.  (FN15)
STILL, THE STATUTORY LANGUAGE, READ IN THE LIGHT OF THE OVERRIDING
CONGRESSIONAL PURPOSE TO CONTROL CORPORATE CONCENTRATIONS TENDING TO
MONOPOLY, LENT ITSELF TO A CONSTRUCTION WHEREBY SEC. 7 WOULD HAVE
REACHED AT LEAST MERGERS AND CONSOLIDATIONS.  IT WOULD HARDLY HAVE DONE
VIOLENCE TO THE LANGUAGE SO TO HAVE INTERPRETED THE VAGUE TERM "SHARE
CAPITAL," SEE 30 GEO. WASH. L. REV. 1024, 1027-1028 (1962), OR TO HAVE
ADOPTED THE VIEW THAT:  "WHERE THE ASSETS ARE EXCHANGED FOR THE STOCK
OF THE PURCHASING COMPANY, ASSUMING THAT THE TWO COMPANIES WERE
PREVIOUSLY IN COMPETITION, IT IS APPARENT THAT THE SELLER HAS ACQUIRED
STOCK IN A COMPETING COMPANY  ...  AND THEREFORE, THAT IN EFFECTING THE
MERGER SECTION 7 WAS VIOLATED AND HENCE THE DISTRIBUTION OF THE STOCK
RECEIVED BY THE SELLING COMPANY TO ITS SHAREHOLDERS AND ITS SUBSEQUENT
DISSOLUTION ARE NO BAR TO PROCEEDINGS BY THE GOVERNMENT TO SET ASIDE
THE PURCHASE."  HANDLER, INDUSTRIAL MERGERS AND THE ANTI-TRUST LAWS, 32
COL. L. REV. 179, 266 (1932).  (FN16) 

BUT THE COURTS FOUND MERGERS TO BE BEYOND THE REACH OF SEC. 7, EVEN
WHEN THE MERGER TECHNIQUE HAD SUPPLANTED STOCK ACQUISITIONS AS THE
PREVALENT MODE OF CORPORATE AMALGAMATION.  UNITED STATES V. CELANESE
CORP. OF AMERICA, 91 F. SUPP. 14 (D.C.S.D.N.Y. 1950); SEE THATCHER MFG.
CO. V. FEDERAL TRADE COMM'N AND SWIFT & CO. V. FEDERAL TRADE COMM'N,
DECIDED TOGETHER WITH FEDERAL TRADE COMM'N V. WESTERN MEAT CO., 272
U.S. 554; ARROW-HART & HEGEMAN ELEC.  CO. V. FEDERAL TRADE COMM'N, 291
U.S. 587.  (FN17)  AS A RESULT, SEC. 7 BECAME LARGELY A DEAD LETTER. 
COMMENT, 68 YALE L.J. 1627, 1629-1630 (1959); SEE FEDERAL TRADE
COMMISSION, THE MERGER MOVEMENT:  A SUMMARY REPORT (1948), 1, 3-6;
HENDERSON, THE FEDERAL TRADE COMMISSION (1924), 40.  MEANWHILE, THIS
COURT'S DECISION IN UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495,
STIRRED CONCERN WHETHER THE SHERMAN ACT ALONE WAS A CHECK AGAINST
CORPORATE ACQUISITIONS.  NOTE, 52 COL. L. REV. 766, 768 (1952). 

IT WAS AGAINST THIS BACKGROUND THAT CONGRESS IN 1950 AMENDED SEC. 7
TO INCLUDE AN ASSETS-ACQUISITION PROVISION.  ACT OF DECEMBER 29, 1950
(CELLER-KEFAUVER ANTIMERGER ACT), C. 1184, 64 STAT. 1125-1126, 15
U.S.C. SEC. 18.  (FN18)  THE LEGISLATIVE HISTORY IS SILENT ON THE
SPECIFIC QUESTIONS WHY THE AMENDMENT MADE NO EXPLICIT REFERENCE TO
MERGERS, WHY ASSETS ACQUISITIONS BY CORPORATIONS NOT SUBJECT TO FTC
JURISDICTION WERE NOT INCLUDED, AND WHAT THESE OMISSIONS SIGNIFY. 
NEVERTHELESS, THE BASIC CONGRESSIONAL DESIGN CLEARLY EMERGES AND FROM
THAT DESIGN THE ANSWERS TO THESE QUESTIONS MAY BE INFERRED.  CONGRESS
PRIMARILY SOUGHT TO BRING MERGERS WITHIN SEC. 7 AND THEREBY CLOSE WHAT
IT REGARDED AS A LOOPHOLE IN THE SECTION.  (FN19)  BUT, IN ADDITION, IT
SOUGHT TO REACH TRANSACTIONS SUCH AS THAT INVOLVED IN COLUMBIA STEEL,
WHICH WAS A SIMPLE PURCHASE OF ASSETS AND NOT A MERGER.  (FN20)  IN
OTHER WORDS, CONGRESS CONTEMPLATED THAT THE 1950 AMENDMENT WOULD GIVE
SEC. 7 A REACH WHICH WOULD BRING THE ENTIRE RANGE OF CORPORATE
AMALGAMATIONS, FROM PURE STOCK ACQUISITIONS TO PURE ASSETS
ACQUISITIONS, WITHIN THE SCOPE OF SEC. 7.  THUS, THE STOCK-ACQUISITION
AND ASSETS-ACQUISITION PROVISIONS, READ TOGETHER, REACH MERGERS, WHICH
FIT NEITHER CATEGORY PERFECTLY BUT LIE SOMEWHERE BETWEEN THE TWO ENDS
OF THE SPECTRUM.  SEE PP. 336-337, AND NOTES 13, 14, SUPRA.  SO
CONSTRUED, THE SPECIFIC EXCEPTION FOR ACQUIRING CORPORATIONS NOT
SUBJECT TO THE FTC'S JURISDICTION EXCLUDES FROM THE COVERAGE OF SEC. 7
ONLY ASSETS ACQUISITIONS BY SUCH CORPORATIONS WHEN NOT ACCOMPLISHED BY
MERGER. 

THIS CONSTRUCTION IS SUPPORTED BY A NUMBER OF SPECIFIC
CONSIDERATIONS. 

FIRST.  ANY OTHER CONSTRUCTION WOULD BE ILLOGICAL AND DISRESPECTFUL
OF THE PLAIN CONGRESSIONAL PURPOSE IN AMENDING SEC. 7, BECAUSE IT WOULD
CREATE A LARGE LOOPHOLE IN A STATUTE DESIGNED TO CLOSE A LOOPHOLE.  IT
IS UNQUESTIONED THAT THE STOCK-ACQUISITION PROVISION OF SEC. 7 EMBRACES
EVERY CORPORATION ENGAGED IN COMMERCE, INCLUDING BANKS.  AND IT IS
PLAIN THAT CONGRESS, IN AMENDING SEC. 7, CONSIDERED A DISTINCTION FOR
ANTITRUST PURPOSES BETWEEN ACQUISITION OF CORPORATE CONTROL BY PURCHASE
OF STOCK AND ACQUISITION BY MERGER UNSUPPORTABLE IN REASON, AND SOUGHT
TO OVERRULE THE DECISIONS OF THIS COURT WHICH HAD RECOGNIZED SUCH A
DISTINCTION.  (FN21)  IF, THEREFORE, MERGERS IN INDUSTRIES OUTSIDE THE
FTC'S JURISDICTION WERE DEEMED BEYOND THE REACH OF SEC. 7, THE RESULT
WOULD BE PRECISELY THAT DIFFERENCE IN TREATMENT WHICH CONGRESS
REJECTED.  ON THE OTHER HAND, EXCLUDING FROM THE SECTION ASSETS
ACQUISITIONS NOT BY MERGER IN THOSE INDUSTRIES DOES NOT APPEAR TO
CREATE A LACUNA OF PRACTICAL IMPORTANCE.  (FN22) 

SECOND.  THE CONGRESS WHICH DEBATED THE BILL TO AMEND SEC. 7 WAS
FULLY AWARE OF THE IMPORTANT DIFFERENCES BETWEEN A MERGER AND A PURE
PURCHASE OF ASSETS.  FOR EXAMPLE, SENATOR KILGORE REMARKED: 

"WHEN YOU TALK ABOUT MERGERS, YOU ARE TALKING ABOUT A STOCK
TRANSACTION  ...  . 

     *         *         *         *         * 

"  ...  ACTUALLY WHAT YOU DO IS MERGE THE STOCKHOLDINGS OF BOTH
CORPORATIONS, AND INSTEAD OF THAT - I AM THINKING IN PRACTICAL TERMS -
YOU MERGE THE CORPORATE ENTITIES OF THE TWO CORPORATIONS AND YOU GET
ONE CORPORATION OUT OF IT, AND YOU ISSUE STOCK IN THE ONE CORPORATION
IN LIEU OF THE STOCK IN THE OTHER CORPORATION, WHEREUPON THE STOCK OF
THE CORPORATION WHICH HAD BEEN MERGED IS CANCELED BY THE NEW
CORPORATION, AND YOU HAVE ONE CORPORATION HANDLING THE OPERATION OF
TWO.  SO IT REALLY IS A STOCK TRANSACTION IN THE FINAL WIND-UP,
REGARDLESS OF WHAT YOU CALL IT.  BUT WHAT I CALL A PURCHASE OF ASSETS
IS WHERE YOU PURCHASE PHYSICAL ASSETS, THINGS UPON WHICH YOU COULD LAY
YOUR HAND, EITHER IN THE RECORDS OR ON THE GROUND  ...  ."  HEARINGS
BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY ON
CORPORATE MERGERS AND ACQUISITIONS, 81ST CONG., 1ST AND 2D SESS. 176;
TO THE SAME EFFECT, SEE, E.G., ID., AT 100, 139, 320-325. 

PLAINLY, ACQUISITION OF "ASSETS" AS USED IN AMENDED SEC. 7 WAS NOT
MEANT TO BE A SIMPLE EQUIVALENT OF ACQUISITION BY MERGER, BUT WAS
INTENDED RATHER TO ENSURE AGAINST THE BLUNTING OF THE ANTIMERGER THRUST
OF THE SECTION BY EVASIVE TRANSACTIONS SUCH AS HAD RENDERED THE
ORIGINAL SECTION INEFFECTUAL.   THUS, THE STOCK-ACQUISITION PROVISION
OF SEC. 7, THOUGH REENACTED IN HAEC VERBA BY THE 1950 AMENDMENT, MUST
BE DEEMED EXPANDED IN ITS NEW CONTEXT TO INCLUDE, AT THE VERY LEAST,
ACQUISITIONS BY MERGER OR CONSOLIDATION, TRANSACTIONS WHICH ENTAIL A
TRANSFER OF STOCK OF THE PARTIES, WHILE THE ASSETS-ACQUISITION
PROVISION CLEARLY REACHES CORPORATE ACQUISITIONS INVOLVING NO SUCH
TRANSFER.  AND SEE NOTE 22, SUPRA.  THIS SEEMS TO BE THE POINT OF
CONGRESSMAN PATMAN'S REMARK, TYPICAL OF MANY, THAT:  "WHAT THIS BILL
DOES IS TO PUT ALL CORPORATE MERGERS ON THE SAME FOOTING, WHETHER THE
RESULT OF THE ACQUISITIONS OF STOCK OR THE ACQUISITION OF PHYSICAL
ASSETS."  HEARINGS, SUPRA, AT 126.  TO THE SAME EFFECT IS THE HOUSE
REPORT ON THE BILL TO AMEND SEC. 7:  "THE BILL RETAINS LANGUAGE OF THE
PRESENT STATUTE WHICH IS BROAD ENOUGH TO PREVENT EVASION OF THE CENTRAL
PURPOSE.  IT COVERS NOT ONLY PURCHASE OF ASSETS OR STOCK BUT ALSO ANY
OTHER METHOD OF ACQUISITION  ...  .  IT FORBIDS NOT ONLY DIRECT
ACQUISITIONS BUT ALSO INDIRECT ACQUISITIONS  ...  ."  H.R. REP. NO.
1191, 81ST CONG., 1ST SESS. 8-9. 

THIRD.  THE LEGISLATIVE HISTORY SHOWS THAT THE OBJECTIVE OF INCLUDING
THE PHRASE "CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL
TRADE COMMISSION" IN SEC. 7 WAS NOT TO LIMIT THE AMALGAMATIONS TO BE
COVERED BY THE AMENDED STATUTE BUT TO MAKE EXPLICIT THE ROLE OF THE FTC
IN ADMINISTERING THE SECTION.  THE PREDOMINANT FOCUS OF THE HEARINGS,
DEBATES, AND COMMITTEE REPORTS WAS UPON THE POWERS OF THE FTC.  THE
DECISIONS OF THIS COURT WHICH HAD UNCOVERED THE LOOPHOLE IN THE
ORIGINAL SEC. 7 - THATCHER, SWIFT, AND ARROW-HART - HAD NOT RESTED
DIRECTLY UPON THE SUBSTANTIVE COVERAGE OF SEC. 7, BUT RATHER UPON THE
LIMITED SCOPE OF THE FTC'S DIVESTITURE POWERS UNDER SEC. 11.   SEE NOTE
17, SUPRA.  THERE WERE INTIMATIONS THAT THE COURTS' POWER TO ENFORCE
SEC. 7 MIGHT BE FAR GREATER.  SEE THATCHER MFG. CO. V. FEDERAL TRADE
COMM'N, SUPRA, AT 561; SWIFT & CO. V. FEDERAL TRADE COMM'N, SUPRA, AT
563; FEDERAL TRADE COMM'N V. EASTMAN KODAK CO., 274 U.S. 619, 624;
ARROW-HART & HEGEMAN ELEC.  CO. V. FEDERAL TRADE COMM'N, SUPRA, AT 598
599; IRVINE, THE UNCERTAINTIES OF SECTION 7 OF THE CLAYTON ACT, 14
CORNELL L.Q. 28 (1928).  THUS, THE LOOPHOLE WAS SOMETIMES VIEWED AS
PRIMARILY GAP IN THE FTC'S JURISDICTION.  (FN23)  FURTHERMORE, ALTHOUGH
THE CLAYTON ACT HAS ALWAYS PROVIDED FOR DUAL ENFORCEMENT BY COURT AND
AGENCY, SEE 15 U.S.C. SEC. 25; UNITED STATES V. W.T. GRANT CO., 345
U.S. 629; UNITED STATES ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S.
196, 208, PRIOR TO THE 1950 AMENDMENT ENFORCEMENT OF SEC. 7 WAS LEFT
LARGELY TO THE FTC.  MARTIN, MERGERS AND THE CLAYTON ACT (1959), 205,
219; MONTAGUE, THE CELLER ANTI-MERGER ACT:  AN ADMINISTRATIVE PROBLEM
IN AN ECONOMIC CRISIS, 37 A.B.A.J. 253 (1951).  AND THE IMPETUS TO
AMEND SEC. 7 CAME IN LARGE PART FROM THE FTC.  SEE, E.G., MARTIN,
SUPRA, 187-194; FEDERAL TRADE COMMISSION, ANNUAL REPORTS, 1928, PP. 18
19; 1940, PP. 12-13; 1948, PP. 11-22; THE MERGER MOVEMENT:  A SUMMARY
REPORT (1948).  CONGRESS IN 1950 CLEARLY INTENDED TO REMOVE ALL
QUESTION CONCERNING THE FTC'S REMEDIAL POWER OVER CORPORATE
ACQUISITIONS, AND THEREFORE EXPLICITLY ENLARGED THE FTC'S
JURISDICTION.  CONGRESS' CHOICE OF THIS MEANS OF UNDERSCORING THE FTC'S
ROLE IN ENFORCING SEC. 7 PROVIDES NO BASIS FOR A CONSTRUCTION WHICH
WOULD UNDERCUT THE DOMINANT CONGRESSIONAL PURPOSE OF ELIMINATING THE
DIFFERENCE IN TREATMENT ACCORDED STOCK ACQUISITIONS AND MERGERS BY THE
ORIGINAL SEC. 7 AS CONSTRUED. 

FOURTH.  IT IS SETTLED LAW THAT "IMMUNITY FROM THE ANTITRUST LAWS IS
NOT LIGHTLY IMPLIED."  CALIFORNIA V. FEDERAL POWER COMM'N, 369 U.S.
482, 485.  CF. UNITED STATES V. BORDEN CO., 308 U.S. 188, 198-199;
UNITED STATES V. SOUTHERN PAC. CO., 259 U.S. 214, 239-240.  THIS CANON
OF CONSTRUCTION, WHICH REFLECTS THE FELT INDISPENSABLE ROLE OF
ANTITRUST POLICY IN THE MAINTENANCE OF A FREE ECONOMY, IS CONTROLLING
HERE.  FOR THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY TO THE
1950 AMENDMENT OF SEC. 7 THAT CONGRESS WISHED TO CONFER A SPECIAL
DISPENSATION UPON THE BANKING INDUSTRY; IF CONGRESS HAD SO WISHED,
MOREOVER, SURELY IT WOULD HAVE EXEMPTED THE INDUSTRY FROM THE STOCK
ACQUISITION AS WELL AS THE ASSETS-ACQUISITION PROVISION. 

OF COURSE, OUR CONSTRUCTION OF THE AMENDED SEC. 7 IS NOT FORECLOSED
BECAUSE, AFTER THE PASSAGE OF THE AMENDMENT, SOME MEMBERS OF CONGRESS,
AND FOR A TIME THE JUSTICE DEPARTMENT, VOICED THE VIEW THAT BANK
MERGERS WERE STILL BEYOND THE REACH OF THE SECTION.  (FN24)  "THE VIEWS
OF A SUBSEQUENT CONGRESS FORM A HAZARDOUS BASIS FOR INFERRING THE
INTENT OF AN EARLIER ONE."  UNITED STATES V. PRICE, 361 U.S. 304, 313;
SEE RAINWATER V. UNITED STATES, 356 U.S. 590, 593; UNITED STATES V.
UNITED MINE WORKERS, 330 U.S. 258, 282; CF. UNITED STATES V. E.I. DU
PONT DE NEMOURS & CO., 353 U.S. 586, 590.  THIS HOLDS TRUE EVEN THOUGH
MISUNDERSTANDING OF THE SCOPE OF SEC. 7 MAY HAVE PLAYED SOME PART IN
THE PASSAGE OF THE BANK MERGER ACT OF 1960.  (FN25)  THERE IS A
QUESTION, TO WHICH WE SHALL SHORTLY TURN, WHETHER THERE EXISTS SUCH
INCONSISTENCY BETWEEN THE BANK MERGER ACT AND SEC. 7, AS WE NOW
CONSTRUE IT, AS TO REQUIRE A HOLDING THAT SEC. 7 MUST BE DEEMED
REPEALED PRO TANTO; BUT THAT IS A DIFFERENT QUESTION FROM WHETHER
MISUNDERSTANDING OF THE SCOPE OF SEC. 7 IS RELEVANT TO OUR TASK OF
DEFINING WHAT SCOPE CONGRESS GAVE THE SECTION IN 1950.  WHEN CONGRESS
ENACTED THE BANK MERGER ACT, THE APPLICABILITY OF SEC. 7 TO BANK
MERGERS WAS STILL TO BE AUTHORITATIVELY DETERMINED; IT WAS A SUBJECT OF
SPECULATION.  THUS, THIS IS NOT A CASE IN WHICH OUR "EARLIER DECISIONS
ARE PART OF THE ARCH ON WHICH THE NEW STRUCTURE RESTS, AND WE MUST
REFRAIN FROM DISTURBING THEM LEST WE CHANGE THE DESIGN THAT CONGRESS
FASHIONED."  STATE BOARD OF INS. V. TODD SHIPYARDS CORP., 370 U.S. 451,
458.  CF. NOTE 17, SUPRA.  THE DESIGN FASHIONED IN THE BANK MERGER ACT
WAS PREDICATED UPON UNCERTAINTY AS TO THE SCOPE OF SEC. 7, AND WE DO NO
VIOLENCE TO THAT DESIGN BY DISPELLING THE UNCERTAINTY. 

B. THE EFFECT OF THE BANK MERGER ACT OF 1960. 

APPELLEES CONTENDED BELOW THAT THE BANK MERGER ACT, BY DIRECTING THE
BANKING AGENCIES TO CONSIDER COMPETITIVE FACTORS BEFORE APPROVING
MERGERS, 12 U.S.C. (1958 ED., SUPP. IV) SEC. 1828(C), NOTE 8, SUPRA,
IMMUNIZES APPROVED MERGERS FROM CHALLENGE UNDER THE FEDERAL ANTITRUST
LAWS.  (FN26)  WE THINK THE DISTRICT COURT WAS CORRECT IN REJECTING
THIS CONTENTION.  NO EXPRESS IMMUNITY IS CONFERRED BY THE ACT.  (FN27)
REPEALS OF THE ANTITRUST LAWS BY IMPLICATION FROM A REGULATORY STATUTE
ARE STRONGLY DISFAVORED, (FN28) AND HAVE ONLY BEEN FOUND IN CASES OF
PLAIN REPUGNANCY BETWEEN THE ANTITRUST AND REGULATORY PROVISIONS. 
(FN29)  TWO RECENT CASES, PAN AMERICAN WORLD AIRWAYS V. UNITED STATES,
371 U.S. 296, AND CALIFORNIA V. FEDERAL POWER COMM'N, 369 U.S. 482,
ILLUSTRATE THIS PRINCIPLE.  IN PAN AMERICAN, THE COURT HELD THAT
BECAUSE THE CIVIL AERONAUTICS BOARD HAD BEEN GIVEN BROAD POWERS TO
ENFORCE THE COMPETITIVE STANDARD CLEARLY DELINEATED BY THE CIVIL
AERONAUTICS ACT, AND TO IMMUNIZE A VARIETY OF TRANSACTIONS FROM THE
OPERATION OF THE ANTITRUST LAWS, THE SHERMAN ACT COULD NOT BE APPLIED
TO FACTS COMPOSING THE PRECISE INGREDIENTS OF A CASE SUBJECT TO THE
BOARD'S BROAD REGULATORY AND REMEDIAL POWERS; IN CONTRAST, THE BANKING
AGENCIES HAVE AUTHORITY NEITHER TO ENFORCE THE ANTITRUST LAWS AGAINST
MERGERS, CF. NOTE 22, SUPRA, NOR TO GRANT IMMUNITY FROM THOSE LAWS. 

IN THE CALIFORNIA CASE, ON THE OTHER HAND, THE COURT HELD THAT THE
FPC'S APPROVAL OF A MERGER DID NOT CONFER IMMUNITY FROM SEC. 7 OF THE
CLAYTON ACT, EVEN THOUGH, AS IN THE INSTANT CASE, THE AGENCY HAD TAKEN
THE COMPETITIVE FACTOR INTO ACCOUNT IN PASSING UPON THE MERGER
APPLICATION.  SEE 369 U.S., AT 484-485, 487-488.  WE THINK CALIFORNIA
IS CONTROLLING HERE.  ALTHOUGH THE COMPTROLLER WAS REQUIRED TO CONSIDER
EFFECT UPON COMPETITION IN PASSING UPON APPELLEES' MERGER APPLICATION,
HE WAS NOT REQUIRED TO GIVE THIS FACTOR ANY PARTICULAR WEIGHT; HE WAS
NOT EVEN REQUIRED TO (AND DID NOT) HOLD A HEARING BEFORE APPROVING THE
APPLICATION; AND THERE IS NO SPECIFIC PROVISION FOR JUDICIAL REVIEW OF
HIS DECISION.  (FN30)  PLAINLY, THE RANGE AND SCOPE OF ADMINISTRATIVE
POWERS UNDER THE BANK MERGER ACT BEAR LITTLE RESEMBLANCE TO THOSE
INVOLVED IN PAN AMERICAN. 

NOR DID CONGRESS, IN PASSING THE BANK MERGER ACT, EMBRACE THE VIEW
THAT FEDERAL REGULATION OF BANKING IS SO COMPREHENSIVE THAT ENFORCEMENT
OF THE ANTITRUST LAWS WOULD BE EITHER UNNECESSARY, IN LIGHT OF THE
COMPLETENESS OF THE REGULATORY STRUCTURE, OR DISRUPTIVE OF THAT
STRUCTURE.  ON THE CONTRARY, THE LEGISLATIVE HISTORY OF THE ACT SEEMS
CLEARLY TO REFUTE ANY SUGGESTION THAT APPLICABILITY OF THE ANTITRUST
LAWS WAS TO BE AFFECTED.  BOTH THE HOUSE AND SENATE COMMITTEE REPORTS
STATED THAT THE ACT WOULD NOT AFFECT IN ANY WAY THE APPLICABILITY OF
THE ANTITRUST LAWS TO BANK ACQUISITIONS.  H.R. REP. NO. 1416, 86TH
CONG., 2D SESS. 9; S. REP. NO. 196, 86TH CONG., 1ST SESS. 3.   SEE
ALSO, E.G., 105 CONG. REC. 8131 (REMARKS OF SENATOR ROBERTSON, THE
ACT'S SPONSOR).  MOREOVER, BANK REGULATION IS IN MOST RESPECTS LESS
COMPLETE THAN PUBLIC UTILITY REGULATION, TO WHICH INTERSTATE RAIL AND
AIR CARRIERS, AMONG OTHERS, ARE SUBJECT.  RATE REGULATION IN THE
BANKING INDUSTRY IS LIMITED AND LARGELY INDIRECT, SEE P. 328, SUPRA;
BANKS ARE UNDER NO DUTY NOT TO DISCRIMINATE IN THEIR SERVICES; AND
THOUGH THE LOCATION OF BANK OFFICES IS REGULATED, BANKS MAY DO BUSINESS
- PLACE LOANS AND SOLICIT DEPOSITS - WHERE THEY PLEASE.  THE FACT THAT
THE BANKING AGENCIES MAINTAIN A CLOSE SURVEILLANCE OF THE INDUSTRY WITH
A VIEW TOWARD PREVENTING UNSOUND PRACTICES THAT MIGHT IMPAIR LIQUIDITY
OR LEAD TO INSOLVENCY DOES NOT MAKE FEDERAL BANKING REGULATION ALL
PERVASIVE, ALTHOUGH IT DOES MINIMIZE THE HAZARDS OF INTENSE
COMPETITION.  INDEED, THAT THERE ARE SO MANY DIRECT PUBLIC CONTROLS
OVER UNSOUND COMPETITIVE PRACTICES IN THE INDUSTRY REFUTES THE ARGUMENT
THAT PRIVATE CONTROLS OF COMPETITION ARE NECESSARY IN THE PUBLIC
INTEREST AND OUGHT THEREFORE TO BE IMMUNE FROM SCRUTINY UNDER THE
ANTITRUST LAWS.  CF. KAYSEN AND TURNER, ANTITRUST POLICY (1959), 206. 

WE NOTE, FINALLY, THAT THE DOCTRINE OF "PRIMARY JURISDICTION" IS NOT
APPLICABLE HERE.  THAT DOCTRINE REQUIRES JUDICIAL ABSTENTION IN CASES
WHERE PROTECTION OF THE INTEGRITY OF A REGULATORY SCHEME DICTATES
PRELIMINARY RESORT TO THE AGENCY WHICH ADMINISTERS THE SCHEME.  SEE FAR
EAST CONFERENCE V. UNITED STATES, 342 U.S. 570; GREAT NORTHERN R. CO.
V. MERCHANTS ELEVATOR CO., 259 U.S. 285; SCHWARTZ, LEGAL RESTRICTION OF
COMPETITION IN THE REGULATED INDUSTRIES:  AN ABDICATION OF JUDICIAL
RESPONSIBILITY, 67 HARV. L. REV. 436, 464 (1954).  (FN31)  COURT
JURISDICTION IS NOT THEREBY OUSTED, BUT ONLY POSTPONED.  SEE GENERAL
AM. TANK CAR CORP. V. EL DORADO TERMINAL CO., 308 U.S. 422, 433;
FEDERAL MARITIME BD. V. ISBRANDTSEN CO., 356 U.S. 481, 498-499; 3
DAVIS, ADMINISTRATIVE LAW (1958), 1-55.  THUS, EVEN IF WE WERE TO
ASSUME THE APPLICABILITY OF THE DOCTRINE TO MERGER-APPLICATION
PROCEEDINGS BEFORE THE BANKING AGENCIES, (FN32) THE PRESENT ACTION
WOULD NOT BE BARRED, FOR THE AGENCY PROCEEDING WAS COMPLETED BEFORE THE
ANTITRUST ACTION WAS COMMENCED.  CF. UNITED STATES V. WESTERN PAC. R.
CO., 352 U.S. 59, 69; RETAIL CLERKS INT'L ASSN. V. SCHERMERHORN, 373
U.S. 746, 756.  WE RECOGNIZE THAT THE PRACTICAL EFFECT OF APPLYING THE
DOCTRINE OF PRIMARY JURISDICTION HAS SOMETIMES BEEN TO CHANNEL JUDICIAL
ENFORCEMENT OF ANTITRUST POLICY INTO APPELLATE REVIEW OF THE AGENCY'S
DECISION, SEE FEDERAL MARITIME BD. V. ISBRANDTSEN CO., SUPRA; CF. D.L.
PIAZZA CO. V. WEST COAST LINE, INC., 210 F.2D 947 (C.A.2D CIR. 1954),
OR EVEN TO PRECLUDE SUCH ENFORCEMENT ENTIRELY IF THE AGENCY HAS THE
POWER TO APPROVE THE CHALLENGED ACTIVITIES, SEE UNITED STATES NAV. CO.
V. CUNARD S.S.  CO., 284 U.S. 474; CF. UNITED STATES V. RAILWAY EXPRESS
AGENCY, 101 F. SUPP. 1008 (D.C.D. DEL. 1951); BUT SEE FEDERAL MARITIME
BD. V. ISBRANDTSEN CO., SUPRA.  BUT HERE THERE MAY BE NO POWER OF
JUDICIAL REVIEW OF THE ADMINISTRATIVE DECISION APPROVING THE MERGER,
AND SUCH APPROVAL DOES NOT IN ANY EVENT CONFER IMMUNITY FROM THE
ANTITRUST LAWS, SEE PP. 350-352, SUPRA. FURTHERMORE, THE CONSIDERATIONS
THAT MILITATE AGAINST FINDING A REPEAL OF THE ANTITRUST LAWS BY
IMPLICATION FROM THE EXISTENCE OF A REGULATORY SCHEME ALSO ARGUE
PERSUASIVELY AGAINST ATTENUATING, BY POSTPONING, THE COURTS'
JURISDICTION TO ENFORCE THOSE LAWS. 

IT SHOULD BE NECESSARY TO ADD THAT IN HOLDING AS WE DO THAT THE BANK
MERGER ACT OF 1960 DOES NOT PRECLUDE APPLICATION OF SEC. 7 OF THE
CLAYTON ACT TO BANK MERGERS, WE DEPRIVE THE LATER STATUTE OF NONE OF
ITS INTENDED FORCE.  CONGRESS PLAINLY DID NOT INTEND THE 1960 ACT TO
EXTINGUISH OTHER SOURCES OF FEDERAL RESTRAINT OF BANK ACQUISITIONS
HAVING ANTICOMPETITIVE EFFECTS.  FOR EXAMPLE, CONGRESS CERTAINLY KNEW
THAT BANK MERGERS WOULD CONTINUE SUBJECT TO THE SHERMAN ACT, SEE P.
352, SUPRA, AS WELL AS THAT PURE STOCK ACQUISITIONS BY BANKS WOULD
CONTINUE SUBJECT TO SEC. 7 OF THE CLAYTON ACT.  IF, IN ADDITION, BANK
MERGERS ARE SUBJECT TO SEC. 7, WE DO NOT SEE HOW THE OBJECTIVES OF THE
1960 ACT ARE THEREBY THWARTED.  IT IS NOT AS IF THE CLAYTON AND SHERMAN
ACTS EMBODIED APPROACHES TO ANTITRUST POLICY INCONSISTENT WITH OR
UNRELATED TO EACH OTHER.  THE SHERMAN ACT, OF COURSE, FORBIDS MERGERS
EFFECTING AN UNREASONABLE RESTRAINT OF TRADE.  SEE, E.G., NORTHERN
SECURITIES CO. V. UNITED STATES, 193 U.S. 197; UNITED STATES V. UNION
PAC. R. CO., 226 U.S. 61; INDEED, THERE IS PRESENTLY PENDING BEFORE
THIS COURT A CHALLENGE TO A BANK MERGER PREDICATED SOLELY ON THE
SHERMAN ACT.  UNITED STATES V. FIRST NAT. BANK & TRUST CO. OF
LEXINGTON, PROB.  JURIS.  NOTED, POST, P. 824.  AND THE TESTS OF
ILLEGALITY UNDER THE SHERMAN AND CLAYTON ACTS ARE COMPLEMENTARY.  "THE
PUBLIC POLICY ANNOUNCED BY SEC. 7 OF THE CLAYTON ACT IS TO BE TAKEN
INTO CONSIDERATION IN DETERMINING WHETHER ACQUISITION OF ASSETS  ...
VIOLATES THE PROHIBITIONS OF THE SHERMAN ACT AGAINST UNREASONABLE
RESTRAINTS."  UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, 507,
N. 7; SEE NOTE, 52 COL. L. REV.  766, 768, N. 10 (1952).  TO BE SURE,
NOT EVERY VIOLATION OF SEC. 7, AS AMENDED, WOULD NECESSARILY BE A
VIOLATION OF THE SHERMAN ACT; OUR POINT IS SIMPLY THAT SINCE CONGRESS
PASSED THE 1960 ACT WITH NO INTENTION OF DISPLACING THE ENFORCEMENT OF
THE SHERMAN ACT AGAINST BANK MERGERS - OR EVEN OF SEC. 7 AGAINST PURE
STOCK ACQUISITIONS BY BANKS - CONTINUED APPLICATION OF SEC. 7 TO BANK
MERGERS CANNOT BE REPUGNANT TO THE DESIGN OF THE 1960 ACT.  IT WOULD BE
ANOMALOUS TO CONCLUDE THAT CONGRESS, WHILE INTENDING THE SHERMAN ACT TO
REMAIN FULLY APPLICABLE TO BANK MERGERS, AND SEC. 7 OF THE CLAYTON ACT
TO REMAIN FULLY APPLICABLE TO PURE STOCK ACQUISITIONS BY BANKS,
NEVERTHELESS INTENDED SEC. 7 TO BE COMPLETELY INAPPLICABLE TO BANK
MERGERS. 

         III.  THE LAWFULNESS OF THE PROPOSED MERGER

                           UNDER SECTION 7. 

THE STATUTORY TEST IS WHETHER THE EFFECT OF THE MERGER "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION" "IN ANY LINE OF COMMERCE IN ANY
CO. V. UNITED STATES, 370 U.S. 294, AND THAT ANALYSIS NEED NOT BE
REPEATED OR EXTENDED HERE, FOR THE INSTANT CASE PRESENTS ONLY A
STRAIGHTFORWARD PROBLEM OF APPLICATION TO PARTICULAR FACTS.    WE HAVE
NO DIFFICULTY IN DETERMINING THE "LINE OF COMMERCE" (RELEVANT PRODUCT
OR SERVICES MARKET) AND "SECTION OF THE COUNTRY" (RELEVANT GEOGRAPHICAL
MARKET) IN WHICH TO APPRAISE THE PROBABLE COMPETITIVE EFFECTS OF
APPELLEES' PROPOSED MERGER.  WE AGREE WITH THE DISTRICT COURT THAT THE
CLUSTER OF PRODUCTS (VARIOUS KINDS OF CREDIT) AND SERVICES (SUCH AS
CHECKING ACCOUNTS AND TRUST ADMINISTRATION) DENOTED BY THE TERM
"COMMERCIAL BANKING," SEE NOTE 5, SUPRA, COMPOSES A DISTINCT LINE OF
COMMERCE.  SOME COMMERCIAL BANKING PRODUCTS OR SERVICES ARE SO
DISTINCTIVE THAT THEY ARE ENTIRELY FREE OF EFFECTIVE COMPETITION FROM
PRODUCTS OR SERVICES OF OTHER FINANCIAL INSTITUTIONS; THE CHECKING
ACCOUNT IS IN THIS CATEGORY.  OTHERS ENJOY SUCH COST ADVANTAGES AS TO
BE INSULATED WITHIN A BROAD RANGE FROM SUBSTITUTES FURNISHED BY OTHER
INSTITUTIONS.  FOR EXAMPLE, COMMERCIAL BANKS COMPETE WITH SMALL-LOAN
COMPANIES IN THE PERSONAL-LOAN MARKET; BUT THE SMALL-LOAN COMPANIES'
RATES ARE INVARIABLY MUCH HIGHER THAN THE BANKS', IN PART, IT SEEMS,
BECAUSE THE COMPANIES' WORKING CAPITAL CONSISTS IN SUBSTANTIAL PART OF
BANK LOANS.  (FN33)  FINALLY, THERE ARE BANKING FACILITIES WHICH,
ALTHOUGH IN TERMS OF COST AND PRICE THEY ARE FREELY COMPETITIVE WITH
THE FACILITIES PROVIDED BY OTHER FINANCIAL INSTITUTIONS, NEVERTHELESS
ENJOY A SETTLED CONSUMER PREFERENCE, INSULATING THEM, TO A MARKED
DEGREE, FROM COMPETITION; THIS SEEMS TO BE THE CASE WITH SAVINGS
DEPOSITS.  (FN34)  IN SUM, IT IS CLEAR THAT COMMERCIAL BANKING IS A
MARKET "SUFFICIENTLY INCLUSIVE TO BE MEANINGFUL IN TERMS OF TRADE
REALITIES."  CROWN ZELLERBACH CORP. V. FEDERAL TRADE COMM'N, 296 F.2D
800, 811 (C.A. 9TH CIR. 1961). 

WE PART COMPANY WITH THE DISTRICT COURT ON THE DETERMINATION OF THE
APPROPRIATE "SECTION OF THE COUNTRY."  THE PROPER QUESTION TO BE ASKED
IN THIS CASE IS NOT WHERE THE PARTIES TO THE MERGER DO BUSINESS OR EVEN
WHERE THEY COMPETE, BUT WHERE, WITHIN THE AREA OF COMPETITIVE OVERLAP,
THE EFFECT OF THE MERGER ON COMPETITION WILL BE DIRECT AND IMMEDIATE. 
SEE BOCK, MERGERS AND MARKETS (1960), 42.  THIS DEPENDS UPON "THE
GEOGRAPHIC STRUCTURE OF SUPPLIER-CUSTOMER RELATIONS."  KAYSEN AND
TURNER, ANTITRUST POLICY (1959), 102.  IN BANKING, AS IN MOST SERVICE
INDUSTRIES, CONVENIENCE OF LOCATION IS ESSENTIAL TO EFFECTIVE
COMPETITION.  INDIVIDUALS AND CORPORATIONS TYPICALLY CONFER THE BULK OF
THEIR PATRONAGE ON BANKS IN THEIR LOCAL COMMUNITY; THEY FIND IT
IMPRACTICAL TO CONDUCT THEIR BANKING BUSINESS AT A DISTANCE.  (FN35)
SEE TRANSAMERICA CORP. V. BOARD OF GOVS.  OF FED. RES. SYS., 206 F.2D
163, 169 (C.A. 3D CIR. 1953).  THE FACTOR OF INCONVENIENCE LOCALIZES
BANKING COMPETITION AS EFFECTIVELY AS HIGH TRANSPORTATION COSTS IN
OTHER INDUSTRIES.  SEE, E.G., AMERICAN CRYSTAL SUGAR CO. V. CUBAN
AMERICAN SUGAR CO., 152 F. SUPP. 387, 398 (D.C.S.D.N.Y. 1957), AFF'D,
259 F.2D 524 (C.A.2D CIR. 1958).  THEREFORE, SINCE, AS WE RECENTLY SAID
IN A RELATED CONTEXT, THE "AREA OF EFFECTIVE COMPETITION IN THE KNOWN
LINE OF COMMERCE MUST BE CHARTED BY CAREFUL SELECTION OF THE MARKET
AREA IN WHICH THE SELLER OPERATES, AND TO WHICH THE PURCHASER CAN
PRACTICABLY TURN FOR SUPPLIES," TAMPA ELEC.  CO. V. NASHVILLE COAL CO.,
365 U.S. 320, 327; SEE STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293,
299 AND 300, N. 5, THE FOUR-COUNTY AREA IN WHICH APPELLEES' OFFICES ARE
LOCATED WOULD SEEM TO BE THE RELEVANT GEOGRAPHICAL MARKET.  CF. BROWN
SHOE CO., SUPRA, AT 338-339.  IN FACT, THE VAST BULK OF APPELLEES'
BUSINESS ORIGINATES IN THE FOUR-COUNTY AREA.  (FN36) THEORETICALLY, WE
SHOULD BE CONCERNED WITH THE POSSIBILITY THAT BANK OFFICES ON THE
PERIMETER OF THE AREA MAY BE IN EFFECTIVE COMPETITION WITH BANK OFFICES
WITHIN; ACTUALLY, THIS SEEMS TO BE A FACTOR OF LITTLE SIGNIFICANCE. 
(FN37) 

WE RECOGNIZE THAT THE AREA IN WHICH APPELLEES HAVE THEIR OFFICES DOES
NOT DELINEATE WITH PERFECT ACCURACY AN APPROPRIATE "SECTION OF THE
COUNTRY" IN WHICH TO APPRAISE THE EFFECT OF THE MERGER UPON
COMPETITION.  LARGE BORROWERS AND LARGE DEPOSITORS, THE RECORD SHOWS,
MAY FIND IT PRACTICAL TO DO A LARGE PART OF THEIR BANKING BUSINESS
OUTSIDE THEIR HOME COMMUNITY; VERY SMALL BORROWERS AND DEPOSITORS MAY,
AS A PRACTICAL MATTER, BE CONFINED TO BANK OFFICES IN THEIR IMMEDIATE
NEIGHBORHOOD; AND CUSTOMERS OF INTERMEDIATE SIZE, IT WOULD APPEAR, DEAL
WITH BANKS WITHIN AN AREA INTERMEDIATE BETWEEN THESE EXTREMES.  SEE
NOTES 35-37, SUPRA.  SO ALSO, SOME BANKING SERVICES ARE EVIDENTLY MORE
LOCAL IN NATURE THAN OTHERS.  BUT THAT IN BANKING THE RELEVANT
GEOGRAPHICAL MARKET IS A FUNCTION OF EACH SEPARATE CUSTOMER'S ECONOMIC
SCALE MEANS SIMPLY THAT A WORKABLE COMPROMISE MUST BE FOUND:  SOME FAIR
INTERMEDIATE DELINEATION WHICH AVOIDS THE INDEFENSIBLE EXTREMES OF
DRAWING THE MARKET EITHER SO EXPANSIVELY AS TO MAKE THE EFFECT OF THE
MERGER UPON COMPETITION SEEM INSIGNIFICANT, BECAUSE ONLY THE VERY
LARGEST BANK CUSTOMERS ARE TAKEN INTO ACCOUNT IN DEFINING THE MARKET,
OR SO NARROWLY AS TO PLACE APPELLEES IN DIFFERENT MARKETS, BECAUSE ONLY
THE SMALLEST CUSTOMERS ARE CONSIDERED.  WE THINK THAT THE FOUR-COUNTY
PHILADELPHIA METROPOLITAN AREA, WHICH STATE LAW APPARENTLY RECOGNIZES
AS A MEANINGFUL BANKING COMMUNITY IN ALLOWING PHILADELPHIA BANKS TO
BRANCH WITHIN IT, AND WHICH WOULD SEEM ROUGHLY TO DELINEATE THE AREA IN
WHICH BANK CUSTOMERS THAT ARE NEITHER VERY LARGE NOR VERY SMALL FIND IT
PRACTICAL TO DO THEIR BANKING BUSINESS, IS A MORE APPROPRIATE "SECTION
OF THE COUNTRY" IN WHICH TO APPRAISE THE INSTANT MERGER THAN ANY LARGER
OR SMALLER OR DIFFERENT AREA.  CF. HALE AND HALE, MARKET POWER:  SIZE
AND SHAPE UNDER THE SHERMAN ACT (1958), 119.  WE ARE HELPED TO THIS
CONCLUSION BY THE FACT THAT THE THREE FEDERAL BANKING AGENCIES REGARD
THE AREA IN WHICH BANKS HAVE THEIR OFFICES AS AN "AREA OF EFFECTIVE
COMPETITION."  NOT ONLY DID THE FDIC AND FRB, IN THE REPORTS THEY
SUBMITTED TO THE COMPTROLLER OF THE CURRENCY IN CONNECTION WITH
APPELLEES' APPLICATION FOR PERMISSION TO MERGE, SO HOLD, BUT THE
COMPTROLLER, IN HIS STATEMENT APPROVING THE MERGER, AGREED: "WITH
RESPECT TO THE EFFECT UPON COMPETITION, THERE ARE THREE SEPARATE LEVELS
AND EFFECTIVE AREAS OF COMPETITION INVOLVED.  THESE ARE THE NATIONAL
LEVEL FOR NATIONAL ACCOUNTS, THE REGIONAL OR SECTIONAL AREA, AND THE
LOCAL AREA OF THE CITY OF PHILADELPHIA AND THE IMMEDIATELY SURROUNDING
AREA." 

HAVING DETERMINED THE RELEVANT MARKET, WE COME TO THE ULTIMATE
QUESTION UNDER SEC. 7:  WHETHER THE EFFECT OF THE MERGER "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION" IN THE RELEVANT MARKET.  CLEARLY,
THIS IS NOT THE KIND OF QUESTION WHICH IS SUSCEPTIBLE OF A READY AND
PRECISE ANSWER IN MOST CASES.  IT REQUIRES NOT MERELY AN APPRAISAL OF
THE IMMEDIATE IMPACT OF THE MERGER UPON COMPETITION, BUT A PREDICTION
OF ITS IMPACT UPON COMPETITIVE CONDITIONS IN THE FUTURE; THIS IS WHAT
IS MEANT WHEN IT IS SAID THAT THE AMENDED SEC. 7 WAS INTENDED TO ARREST
ANTICOMPETITIVE TENDENCIES IN THEIR "INCIPIENCY."  SEE BROWN SHOE CO.,
SUPRA, AT 317, 322.  SUCH A PREDICTION IS SOUND ONLY IF IT IS BASED
UPON A FIRM UNDERSTANDING OF THE STRUCTURE OF THE RELEVANT MARKET; YET
THE RELEVANT ECONOMIC DATA ARE BOTH COMPLEX AND ELUSIVE.  SEE GENERALLY
BOK, SECTION 7 OF THE CLAYTON ACT AND THE MERGING OF LAW AND ECONOMICS,
74 HARV. L. REV. 226 (1960).  AND UNLESS BUSINESSMEN CAN ASSESS THE
LEGAL CONSEQUENCES OF A MERGER WITH SOME CONFIDENCE, SOUND BUSINESS
PLANNING IS RETARDED.  SEE CROWN ZELLERBACH CORP. V. FEDERAL TRADE
COMM'N, 296 F.2D 800, 826-827 (C.A. 9TH CIR. 1961).  SO ALSO, WE MUST
BE ALERT TO THE DANGER OF SUBVERTING CONGRESSIONAL INTENT BY PERMITTING
A TOO-BROAD ECONOMIC INVESTIGATION.  STANDARD OIL CO. V. UNITED STATES,
337 U.S. 293, 313.  AND SO IN ANY CASE IN WHICH IT IS POSSIBLE, WITHOUT
DOING VIOLENCE TO THE CONGRESSIONAL OBJECTIVE EMBODIED IN SEC. 7, TO
SIMPLIFY THE TEST OF ILLEGALITY, THE COURTS OUGHT TO DO SO IN THE
INTEREST OF SOUND AND PRACTICAL JUDICIAL ADMINISTRATION.  SEE UNION
CARBIDE CORP., TRADE REG. REP., FTC COMPLAINTS AND ORDERS, 1961-1963,
PARA. 15503, AT 20375-20376 (CONCURRING OPINION).  THIS IS SUCH A
CASE. 

WE NOTED IN BROWN SHOE CO., SUPRA, AT 315, THAT "THE DOMINANT THEME
PERVADING CONGRESSIONAL CONSIDERATION OF THE 1950 AMENDMENTS TO SEC. 7
WAS A FEAR OF WHAT WAS CONSIDERED TO BE A RISING TIDE OF ECONOMIC
CONCENTRATION IN THE AMERICAN ECONOMY."  THIS INTENSE CONGRESSIONAL
CONCERN WITH THE TREND TOWARD CONCENTRATION WARRANTS DISPENSING, IN
CERTAIN CASES, WITH ELABORATE PROOF OF MARKET STRUCTURE, MARKET
BEHAVIOR, OR PROBABLE ANTICOMPETITIVE EFFECTS.  SPECIFICALLY, WE THINK
THAT A MERGER WHICH PRODUCES A FIRM CONTROLLING AN UNDUE PERCENTAGE
SHARE OF THE RELEVANT MARKET, AND RESULTS IN A SIGNIFICANT INCREASE IN
THE CONCENTRATION OF FIRMS IN THAT MARKET, IS SO INHERENTLY LIKELY TO
LESSEN COMPETITION SUBSTANTIALLY THAT IT MUST BE ENJOINED IN THE
ABSENCE OF EVIDENCE CLEARLY SHOWING THAT THE MERGER IS NOT LIKELY TO
HAVE SUCH ANTICOMPETITIVE EFFECTS.  SEE UNITED STATES V. KOPPERS CO.,
202 F. SUPP. 437 (D.C.W.D. PA. 1962). 

SUCH A TEST LIGHTENS THE BURDEN OF PROVING ILLEGALITY ONLY WITH
RESPECT TO MERGERS WHOSE SIZE MAKES THEM INHERENTLY SUSPECT IN LIGHT OF
CONGRESS' DESIGN IN SEC. 7 TO PREVENT UNDUE CONCENTRATION. 
FURTHERMORE, THE TEST IS FULLY CONSONANT WITH ECONOMIC THEORY.  (FN38)
THAT "COMPETITION IS LIKELY TO BE GREATEST WHEN THERE ARE MANY SELLERS,
NONE OF WHICH HAS ANY SIGNIFICANT MARKET SHARE," (FN39) IS COMMON
GROUND AMONG MOST ECONOMISTS, AND WAS UNDOUBTEDLY A PREMISE OF
CONGRESSIONAL REASONING ABOUT THE ANTIMERGER STATUTE. 

THE MERGER OF APPELLEES WILL RESULT IN A SINGLE BANK'S CONTROLLING AT
LEAST 30% OF THE COMMERCIAL BANKING BUSINESS IN THE FOUR-COUNTY
PHILADELPHIA METROPOLITAN AREA.  (FN40) WITHOUT ATTEMPTING TO SPECIFY
THE SMALLEST MARKET SHARE WHICH WOULD STILL BE CONSIDERED TO THREATEN
UNDUE CONCENTRATION, WE ARE CLEAR THAT 30% PRESENTS THAT THREAT. 
(FN41)  FURTHER, WHEREAS PRESENTLY THE TWO LARGEST BANKS IN THE AREA
(FIRST PENNSYLVANIA AND PNB) CONTROL BETWEEN THEM APPROXIMATELY 44% OF
THE AREA'S COMMERCIAL BANKING BUSINESS, THE TWO LARGEST AFTER THE
MERGER (PNB-GIRARD AND FIRST PENNSYLVANIA) WILL CONTROL 59%.  PLAINLY,
WE THINK, THIS INCREASE OF MORE THAN 33% IN CONCENTRATION MUST BE
REGARDED AS SIGNIFICANT.  (FN42) 

OUR CONCLUSION THAT THESE PERCENTAGES RAISE AN INFERENCE THAT THE
EFFECT OF THE CONTEMPLATED MERGER OF APPELLEES MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION IS NOT AN ARBITRARY ONE, ALTHOUGH NEITHER THE TERMS
OF SEC. 7 NOR THE LEGISLATIVE HISTORY SUGGESTS THAT ANY PARTICULAR
PERCENTAGE SHARE WAS DEEMED CRITICAL.  THE HOUSE REPORT STATES THAT THE
TESTS OF ILLEGALITY UNDER AMENDED SEC. 7 "ARE INTENDED TO BE SIMILAR TO
THOSE WHICH THE COURTS HAVE APPLIED IN INTERPRETING THE SAME LANGUAGE
AS USED IN OTHER SECTIONS OF THE CLAYTON ACT."  H.R. REP. NO. 1191,
81ST CONG., 1ST SESS. 8.  ACCORDINGLY, WE HAVE RELIED UPON DECISIONS
UNDER THESE OTHER SECTIONS IN APPLYING SEC. 7.  SEE BROWN SHOE CO.,
SUPRA, PASSIM; CF. UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353
U.S. 586, 595, AND N. 15.  IN STANDARD OIL CO. V. UNITED STATES, 337
U.S. 293, CITED IN S. REP. NO. 1775, 81ST CONG., 2D SESS. 6, THIS COURT
HELD VIOLATIVE OF SEC. 3 OF THE CLAYTON ACT EXCLUSIVE CONTRACTS WHEREBY
THE DEFENDANT COMPANY, WHICH ACCOUNTED FOR 23% OF THE SALES IN THE
RELEVANT MARKET AND, TOGETHER WITH SIX OTHER FIRMS, ACCOUNTED FOR 65%
OF SUCH SALES, MAINTAINED CONTROL OVER OUTLETS THROUGH WHICH
APPROXIMATELY 7% OF THE SALES WERE MADE.  IN FEDERAL TRADE COMM'N V.
MOTION PICTURE ADV.  SERV.  CO., 344 U.S. 392, WE HELD UNLAWFUL, UNDER
SEC. 1 OF THE SHERMAN ACT AND SEC. 5 OF THE FEDERAL TRADE COMMISSION
ACT, RATHER THAN UNDER SEC. 3 OF THE CLAYTON ACT, EXCLUSIVE
ARRANGEMENTS WHEREBY THE FOUR MAJOR FIRMS IN THE INDUSTRY HAD
FORECLOSED 75% OF THE RELEVANT MARKET; THE RESPONDENT'S MARKET SHARE,
EVIDENTLY, WAS 20%.  KESSLER AND STERN, COMPETITION, CONTRACT, AND
VERTICAL INTEGRATION, 69 YALE L.J. 1, 53 N. 231 (1959).  IN THE INSTANT
CASE, BY WAY OF COMPARISON, THE FOUR LARGEST BANKS AFTER THE MERGER
WILL FORECLOSE 78% OF THE RELEVANT MARKET.  P. 331, SUPRA. AND IN
STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346, THE COURT
HELD VIOLATIVE OF SEC. 3 A SERIES OF EXCLUSIVE CONTRACTS WHEREBY A
SINGLE MANUFACTURER CONTROLLED 40% OF THE INDUSTRY'S RETAIL OUTLETS. 
DOUBTLESS THESE CASES TURNED TO SOME EXTENT UPON WHETHER "BY THE NATURE
OF THE MARKET THERE IS ROOM FOR NEWCOMERS."  FEDERAL TRADE COMM'N V.
MOTION PICTURE ADV.  SERV.  CO., SUPRA, AT 395.  BUT THEY REMAIN HIGHLY
SUGGESTIVE IN THE PRESENT CONTEXT, FOR AS WE NOTED IN BROWN SHOE CO.,
SUPRA, AT 332, N. 55, INTEGRATION BY MERGER IS MORE SUSPECT THAN
INTEGRATION BY CONTRACT, BECAUSE OF THE GREATER PERMANENCE OF THE
FORMER.  THE MARKET SHARE AND MARKET CONCENTRATION FIGURES IN THE
CONTRACT-INTEGRATION CASES, TAKEN TOGETHER WITH SCHOLARLY OPINION, SEE
NOTES 41 AND 42, SUPRA, SUPPORT, WE BELIEVE, THE INFERENCE WE DRAW IN
THE INSTANT CASE FROM THE FIGURES DISCLOSED BY THE RECORD. 

THERE IS NOTHING IN THE RECORD OF THIS CASE TO REBUT THE INHERENTLY
ANTICOMPETITIVE TENDENCY MANIFESTED BY THESE PERCENTAGES.  THERE WAS,
TO BE SURE, TESTIMONY BY BANK OFFICERS TO THE EFFECT THAT COMPETITION
AMONG BANKS IN PHILADELPHIA WAS VIGOROUS AND WOULD CONTINUE TO BE
VIGOROUS AFTER THE MERGER.  WE THINK, HOWEVER, THAT THE DISTRICT
COURT'S RELIANCE ON SUCH EVIDENCE WAS MISPLACED.  THIS LAY EVIDENCE ON
SO COMPLEX AN ECONOMIC-LEGAL PROBLEM AS THE SUBSTANTIALITY OF THE
EFFECT OF THIS MERGER UPON COMPETITION WAS ENTITLED TO LITTLE WEIGHT,
IN VIEW OF THE WITNESSES' FAILURE TO GIVE CONCRETE REASONS FOR THEIR
CONCLUSIONS.  (FN43)    OF EQUALLY LITTLE VALUE, WE THINK, ARE THE
ASSURANCES OFFERED BY APPELLEES' WITNESSES THAT CUSTOMERS DISSATISFIED
WITH THE SERVICES OF THE RESULTING BANK MAY READILY TURN TO THE 40
OTHER BANKS IN THE PHILADELPHIA AREA.  IN EVERY CASE SHORT OF OUTRIGHT
MONOPOLY, THE DISGRUNTLED CUSTOMER HAS ALTERNATIVES; EVEN IN TIGHTLY
OLIGOPOLISTIC MARKETS, THERE MAY BE SMALL FIRMS OPERATING.  A
FUNDAMENTAL PURPOSE OF AMENDING SEC. 7 WAS TO ARREST THE TREND TOWARD
CONCENTRATION, THE TENDENCY TO MONOPOLY, BEFORE THE CONSUMER'S
ALTERNATIVES DISAPPEARED THROUGH MERGER, AND THAT PURPOSE WOULD BE ILL
SERVED IF THE LAW STAYED ITS HAND UNTIL 10, OR 20, OR 30 MORE
PHILADELPHIA BANKS WERE ABSORBED.  THIS IS NOT A FANCIFUL EVENTUALITY,
IN VIEW OF THE STRONG TREND TOWARD MERGERS EVIDENT IN THE AREA, SEE P.
331, SUPRA; AND WE MIGHT NOTE ALSO THAT ENTRY OF NEW COMPETITORS INTO
THE BANKING FIELD IS FAR FROM EASY.  (FN44) 

SO ALSO, WE REJECT THE POSITION THAT COMMERCIAL BANKING, BECAUSE IT
IS SUBJECT TO A HIGH DEGREE OF GOVERNMENTAL REGULATION, OR BECAUSE IT
DEALS IN THE INTANGIBLES OF CREDIT AND SERVICES RATHER THAN IN THE
MANUFACTURE OR SALE OF TANGIBLE COMMODITIES, IS SOMEHOW IMMUNE FROM THE
ANTICOMPETITIVE EFFECTS OF UNDUE CONCENTRATION.  COMPETITION AMONG
BANKS EXISTS AT EVERY LEVEL - PRICE, VARIETY OF CREDIT ARRANGEMENTS,
CONVENIENCE OF LOCATION, ATTRACTIVENESS OF PHYSICAL SURROUNDINGS,
CREDIT INFORMATION, INVESTMENT ADVICE, SERVICE CHARGES, PERSONAL
ACCOMMODATIONS, ADVERTISING, MISCELLANEOUS SPECIAL AND EXTRA SERVICES -
AND IT IS KEEN; ON THIS APPELLEES' OWN WITNESSES WERE EMPHATIC.  (FN45)

THERE IS NO REASON TO THINK THAT CONCENTRATION IS LESS INIMICAL TO
THE FREE PLAY OF COMPETITION IN BANKING THAN IN OTHER SERVICE
INDUSTRIES.  ON THE CONTRARY, IT IS IN ALL PROBABILITY MORE INIMICAL. 
FOR EXAMPLE, BANKS COMPETE TO FILL THE CREDIT NEEDS OF BUSINESSMEN. 
SMALL BUSINESSMEN ESPECIALLY ARE, AS A PRACTICAL MATTER, CONFINED TO
THEIR LOCALITY FOR THE SATISFACTION OF THEIR CREDIT NEEDS.  SEE NOTE
35, SUPRA.  IF THE NUMBER OF BANKS IN THE LOCALITY IS REDUCED, THE
VIGOR OF COMPETITION FOR FILLING THE MARGINAL SMALL BUSINESS BORROWER'S
NEEDS IS LIKELY TO DIMINISH.  AT THE SAME TIME, HIS CONCOMITANTLY
GREATER DIFFICULTY IN OBTAINING CREDIT IS LIKELY TO PUT HIM AT A
DISADVANTAGE VIS-A-VIS LARGER BUSINESSES WITH WHICH HE COMPETES.  IN
THIS FASHION, CONCENTRATION IN BANKING ACCELERATES CONCENTRATION
GENERALLY. 

WE TURN NOW TO THREE AFFIRMATIVE JUSTIFICATIONS WHICH APPELLEES OFFER
FOR THE PROPOSED MERGER.  THE FIRST IS THAT ONLY THROUGH MERGERS CAN
BANKS FOLLOW THEIR CUSTOMERS TO THE SUBURBS AND RETAIN THEIR BUSINESS. 
THIS JUSTIFICATION DOES NOT SEEM PARTICULARLY RELATED TO THE INSTANT
MERGER, BUT IN ANY EVENT IT HAS NO MERIT.  THERE IS AN ALTERNATIVE TO
THE MERGER ROUTE:  THE OPENING OF NEW BRANCHES IN THE AREAS TO WHICH
THE CUSTOMERS HAVE MOVED - SO-CALLED DE NOVO BRANCHING.  APPELLEES DO
NOT CONTEND THAT THEY ARE UNABLE TO EXPAND THUS, BY OPENING NEW OFFICES
RATHER THAN ACQUIRING EXISTING ONES, AND SURELY ONE PREMISE OF AN
ANTIMERGER STATUTE SUCH AS SEC. 7 IS THAT CORPORATE GROWTH BY INTERNAL
EXPANSION IS SOCIALLY PREFERABLE TO GROWTH BY ACQUISITION. 

SECOND, IT IS SUGGESTED THAT THE INCREASED LENDING LIMIT OF THE
RESULTING BANK WILL ENABLE IT TO COMPETE WITH THE LARGE OUT-OF-STATE
BANKS, PARTICULARLY THE NEW YORK BANKS, FOR VERY LARGE LOANS.  WE
REJECT THIS APPLICATION OF THE CONCEPT OF "COUNTERVAILING POWER."  CF.
KIEFER-STEWART CO. V. JOSEPH E. SEAGRAM & SONS, 340 U.S. 211.  IF
ANTICOMPETITIVE EFFECTS IN ONE MARKET COULD BE JUSTIFIED BY
PROCOMPETITIVE CONSEQUENCES IN ANOTHER, THE LOGICAL UPSHOT WOULD BE
THAT EVERY FIRM IN AN INDUSTRY COULD, WITHOUT VIOLATING SEC. 7, EMBARK
ON A SERIES OF MERGERS THAT WOULD MAKE IT IN THE END AS LARGE AS THE
INDUSTRY LEADER.  FOR IF ALL THE COMMERCIAL BANKS IN THE PHILADELPHIA
AREA MERGED INTO ONE, IT WOULD BE SMALLER THAN THE LARGEST BANK IN NEW
YORK CITY.  THIS IS NOT A CASE, PLAINLY, WHERE TWO SMALL FIRMS IN A
MARKET PROPOSE TO MERGE IN ORDER TO BE ABLE TO COMPETE MORE
SUCCESSFULLY WITH THE LEADING FIRMS IN THAT MARKET.  NOR IS IT A CASE
IN WHICH LACK OF ADEQUATE BANKING FACILITIES IS CAUSING HARDSHIPS TO
INDIVIDUALS OR BUSINESSES IN THE COMMUNITY.  THE PRESENT TWO LARGEST
BANKS IN PHILADELPHIA HAVE LENDING LIMITS OF $8,000,000 EACH.  THE ONLY
BUSINESSES LOCATED IN THE PHILADELPHIA AREA WHICH FIND SUCH LIMITS
INADEQUATE ARE LARGE ENOUGH READILY TO OBTAIN BANK CREDIT IN OTHER
CITIES. 

THIS BRINGS US TO APPELLEES' FINAL CONTENTION, THAT PHILADELPHIA
NEEDS A BANK LARGER THAN IT NOW HAS IN ORDER TO BRING BUSINESS TO THE
AREA AND STIMULATE ITS ECONOMIC DEVELOPMENT.  SEE P. 334 AND NOTE 10,
SUPRA.  WE ARE CLEAR, HOWEVER, THAT A MERGER THE EFFECT OF WHICH "MAY
BE SUBSTANTIALLY TO LESSEN COMPETITION" IS NOT SAVED BECAUSE, ON SOME
ULTIMATE RECKONING OF SOCIAL OR ECONOMIC DEBITS AND CREDITS, IT MAY BE
DEEMED BENEFICIAL.  A VALUE CHOICE OF SUCH MAGNITUDE IS BEYOND THE
ORDINARY LIMITS OF JUDICIAL COMPETENCE, AND IN ANY EVENT HAS BEEN MADE
FOR US ALREADY, BY CONGRESS WHEN IT ENACTED THE AMENDED SEC. 7. 
CONGRESS DETERMINED TO PRESERVE OUR TRADITIONALLY COMPETITIVE ECONOMY. 
IT THEREFORE PROSCRIBED ANTICOMPETITIVE MERGERS, THE BENIGN AND THE
MALIGNANT ALIKE, FULLY AWARE, WE MUST ASSUME, THAT SOME PRICE MIGHT
HAVE TO BE PAID. 

IN HOLDING AS WE DO THAT THE MERGER OF APPELLEES WOULD VIOLATE SEC. 7
AND MUST THEREFORE BE ENJOINED, WE REJECT APPELLEES' PERVASIVE
SUGGESTION THAT APPLICATION OF THE PROCOMPETITIVE POLICY OF SEC. 7 TO
THE BANKING INDUSTRY WILL HAVE DIRE, ALTHOUGH UNSPECIFIED, CONSEQUENCES
FOR THE NATIONAL ECONOMY.  CONCEDEDLY, PNB AND GIRARD ARE HEALTHY AND
STRONG; THEY ARE NOT UNDERCAPITALIZED OR OVERLOANED; THEY HAVE NO
MANAGEMENT PROBLEMS; THE PHILADELPHIA AREA IS NOT OVERBANKED; RUINOUS
COMPETITION IS NOT IN THE OFFING.  SECTION 7 DOES NOT MANDATE CUTTHROAT
COMPETITION IN THE BANKING INDUSTRY, AND DOES NOT EXCLUDE DEFENSES
BASED ON DANGERS TO LIQUIDITY OR SOLVENCY, IF TO AVERT THEM A MERGER IS
NECESSARY.  (FN46) IT DOES REQUIRE, HOWEVER, THAT THE FORCES OF
COMPETITION BE ALLOWED TO OPERATE WITHIN THE BROAD FRAMEWORK OF
GOVERNMENTAL REGULATION OF THE INDUSTRY.  THE FACT THAT BANKING IS A
HIGHLY REGULATED INDUSTRY CRITICAL TO THE NATION'S WELFARE MAKES THE
PLAY OF COMPETITION NOT LESS IMPORTANT BUT MORE SO.  AT THE PRICE OF
SOME REPETITION, WE NOTE THAT IF THE BUSINESSMAN IS DENIED CREDIT
BECAUSE HIS BANKING ALTERNATIVES HAVE BEEN ELIMINATED BY MERGERS, THE
WHOLE EDIFICE OF AN ENTREPRENEURIAL SYSTEM IS THREATENED; IF THE COSTS
OF BANKING SERVICES AND CREDIT ARE ALLOWED TO BECOME EXCESSIVE BY THE
ABSENCE OF COMPETITIVE PRESSURES, VIRTUALLY ALL COSTS, IN OUR CREDIT
ECONOMY, WILL BE AFFECTED; AND UNLESS COMPETITION IS ALLOWED TO FULFILL
ITS ROLE AS AN ECONOMIC REGULATOR IN THE BANKING INDUSTRY, THE RESULT
MAY WELL BE EVEN MORE GOVERNMENTAL REGULATION.  SUBJECT TO NARROW
QUALIFICATIONS, IT IS SURELY THE CASE THAT COMPETITION IS OUR
FUNDAMENTAL NATIONAL ECONOMIC POLICY, OFFERING AS IT DOES THE ONLY
ALTERNATIVE TO THE CARTELIZATION OR GOVERNMENTAL REGIMENTATION OF LARGE
PORTIONS OF THE ECONOMY.  CF. NORTHERN PAC. R. CO. V. UNITED STATES,
356 U.S. 1, 4.  THERE IS NO WARRANT FOR DECLINING TO ENFORCE IT IN THE
INSTANT CASE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE REMANDED
WITH DIRECTION TO ENTER JUDGMENT ENJOINING THE PROPOSED MERGER.  IT IS
SO ORDERED. 

FN1  SECTION 1 OF THE SHERMAN ACT PROVIDES IN PERTINENT PART:  "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."  SECTION 7 OF THE CLAYTON
ACT, AS AMENDED IN 1950 BY THE CELLER-KEFAUVER ANTIMERGER ACT, PROVIDES
IN PERTINENT PART:  "NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE,
DIRECTLY OR INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER
SHARE CAPITAL AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE
FEDERAL TRADE COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE
ASSETS OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY
LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH
ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY." 

FN2  THE DISCUSSION IN THIS PORTION OF THE OPINION DRAWS UPON
UNDISPUTED EVIDENCE OF RECORD IN THE CASE, SUPPLEMENTED BY PERTINENT
REFERENCE MATERIALS.  SEE BOARD OF GOVS.  OF THE FED. RES. SYSTEM,
FINANCING SMALL BUSINESS (COMM. PRINT 1958); THE FEDERAL RESERVE SYSTEM
(3D ED. 1954); CONCENTRATION OF BANKING IN THE UNITED STATES (COMM.
PRINT 1952); BOGEN, THE COMPETITIVE POSITION OF COMMERCIAL BANKS
(1959); COMMISSION ON MONEY AND CREDIT, MONEY AND CREDIT (1961);
FREEMAN, THE PROBLEMS OF ADEQUATE BANK CAPITAL (1952); HART, MONEY,
DEBT, AND ECONOMIC ACTIVITY (2D ED. 1953); LENT, THE CHANGING STRUCTURE
OF COMMERCIAL BANKING (1960); SAYERS, MODERN BANKING (5TH ED. 1960);
STAFF OF HOUSE SELECT COMM. ON SMALL BUSINESS, 86TH CONG., 2D SESS.,
BANKING CONCENTRATION AND SMALL BUSINESS (1960); U.S. ATTORNEY
GENERAL'S COMM. ON ADMINISTRATIVE PROCEDURE, FEDERAL CONTROL OF BANKING
(S. DOC. NO. 186, 76TH CONG., 3D SESS., 1940); FOX, SUPERVISION OF
BANKING BY THE COMPTROLLER OF THE CURRENCY, IN PUBLIC ADMINISTRATION
AND POLICY FORMATION (REDFORD ED. 1956), 117; STOKES, PUBLIC
CONVENIENCE AND ADVANTAGE IN APPLICATIONS FOR NEW BANKS AND BRANCHES,
74 BANKING L.J. 921 (1957).  FOR MATERIALS WHICH FOCUS SPECIFICALLY ON
THE QUESTION OF COMPETITION IN THE BANKING INDUSTRY, SEE ALSO ALHADEFF,
MONOPOLY AND COMPETITION IN BANKING (1954); CHAPMAN, CONCENTRATION OF
BANKING (1934); HORVITZ, CONCENTRATION AND COMPETITION IN NEW ENGLAND
BANKING (1958); LAWRENCE, BANKING CONCENTRATION IN THE UNITED STATES
(1930); BERLE, BANKING UNDER THE ANTI-TRUST LAWS, 49 COL. L. REV. 589
(1949); CHANDLER, MONOPOLISTIC ELEMENTS IN COMMERCIAL BANKING, 46 J.
POL.  ECON.  1 (1938); GRUIS, ANTITRUST LAWS AND THEIR APPLICATION TO
BANKING, 24 GEO. WASH. L. REV. 89 (1955); FUNK, ANTITRUST LEGISLATION
AFFECTING BANK MERGERS, 12 BUS.  LAW.  496 (1957); KLEBANER, FEDERAL
CONTROL OF COMMERCIAL BANK MERGERS, 37 IND. L.J. 287 (1962); WEMPLE AND
CUTLER, THE FEDERAL BANK MERGER LAW AND THE ANTITRUST LAWS, 16 BUS. 
LAW.  994 (1961); COMMENT, BANK CHARTER, BRANCHING, HOLDING COMPANY AND
MERGER LAWS:  COMPETITION FRUSTRATED, 71 YALE L.J. 502 (1962); NOTE,
FEDERAL REGULATION OF BANK MERGERS: THE OPPOSING VIEWS OF THE FEDERAL
BANKING AGENCIES AND THE DEPARTMENT OF JUSTICE, 75 HARV. L. REV. 756
(1962). 

FN3  IN ADDITION, THERE IS A CERTAIN AMOUNT OF BANK HOLDING COMPANY
ACTIVITY.  THE BANK HOLDING COMPANY ACT OF 1956, 12 U.S.C. SECS. 1841
1848, BROUGHT BANK HOLDING COMPANIES UNDER STRINGENT FEDERAL
REGULATION.  AS OF 1958, THE 43 REGISTERED BANK HOLDING COMPANIES
CONTROLLED 5.7% OF ALL BANKING OFFICES AND 7.4% OF ALL DEPOSITS.  LENT,
THE CHANGING STRUCTURE OF COMMERCIAL BANKING (1960), 19.  SEE ALSO
COMMENT, SUPRA, NOTE 2, 71 YALE L.J., AT 516-522. 

FN4  SUCH CREATION IS NOT, TO BE SURE, PURE SLEIGHT OF HAND.  A BANK
MAY NOT MAKE A LOAN WITHOUT ADEQUATE RESERVES.  NEVERTHELESS, THE
ELEMENT OF BANK MONEY CREATION IS REAL.  E.G., SAMUELSON, ECONOMICS
(5TH ED. 1961), 331-343. 

FN5  THE PRINCIPAL BANKING "PRODUCTS" ARE OF COURSE VARIOUS TYPES OF
CREDIT, FOR EXAMPLE: UNSECURED PERSONAL AND BUSINESS LOANS, MORTGAGE
LOANS, LOANS SECURED BY SECURITIES OR ACCOUNTS RECEIVABLE, AUTOMOBILE
INSTALLMENT AND CONSUMER GOODS INSTALLMENT LOANS, TUITION FINANCING,
BANK CREDIT CARDS, REVOLVING CREDIT FUNDS.  BANKING SERVICES INCLUDE:
ACCEPTANCE OF DEMAND DEPOSITS FROM INDIVIDUALS, CORPORATIONS,
GOVERNMENTAL AGENCIES, AND OTHER BANKS; ACCEPTANCE OF TIME AND SAVINGS
DEPOSITS; ESTATE AND TRUST PLANNING AND TRUSTEESHIP SERVICES; LOCK
BOXES AND SAFETY-DEPOSIT BOXES; ACCOUNT RECONCILIATION SERVICES;
FOREIGN DEPARTMENT SERVICES (ACCEPTANCES AND LETTERS OF CREDIT);
CORRESPONDENT SERVICES; INVESTMENT ADVICE.  IT SHOULD BE NOTED THAT
MANY OTHER INSTITUTIONS ARE IN THE BUSINESS OF SUPPLYING CREDIT, AND SO
MORE OR LESS IN COMPETITION WITH COMMERCIAL BANKS (SEE FURTHER, PP. 356
357, INFRA), FOR EXAMPLE:  MUTUAL SAVINGS BANKS, SAVINGS AND LOAN
ASSOCIATIONS, CREDIT UNIONS, PERSONAL-FINANCE COMPANIES, SALES-FINANCE
COMPANIES, PRIVATE BUSINESSMEN (THROUGH THE FURNISHING OF TRADE
CREDIT), FACTORS, DIRECT-LENDING GOVERNMENT AGENCIES, THE POST OFFICE,
SMALL BUSINESS INVESTMENT CORPORATIONS, LIFE INSURANCE COMPANIES. 

FN6  IN 1957, FOR EXAMPLE, THERE WERE THREE BANK SUSPENSIONS IN THE
ENTIRE COUNTRY BY REASON OF FINANCIAL DIFFICULTIES; IN 1960, TWO; AND
IN 1961, NINE.  OF THESE NINE, FOUR INVOLVED STATE BANKS WHICH WERE
NEITHER MEMBERS OF THE FRS NOR INSURED BY THE FDIC.  1961 ANNUAL REPORT
OF THE COMPTROLLER OF THE CURRENCY 286.  IN A TYPICAL YEAR IN THE
1920'S, ROUGHLY 600 BANKS FAILED THROUGHOUT THE COUNTRY, ABOUT 100 OF
THEM NATIONAL BANKS.  SEE S. REP. NO. 196, REGULATION OF BANK MERGERS,
86TH CONG., 1ST SESS. 17-18. 

FN7  THE PROPOSED "MERGER" OF APPELLEES IS TECHNICALLY A
CONSOLIDATION, SINCE THE RESULTING BANK WILL BE A DIFFERENT ENTITY FROM
EITHER OF THE CONSTITUENT BANKS, WHEREAS IF THE TRANSACTION WERE A
MERGER, GIRARD WOULD DISAPPEAR INTO PNB AND PNB WOULD SURVIVE. 
HOWEVER, THE PROPOSED TRANSACTION RESEMBLES A MERGER VERY CLOSELY, IN
THAT PNB'S SHAREHOLDERS ARE NOT TO SURRENDER THEIR PRESENT SHARE
CERTIFICATES AND THE RESULTING BANK IS TO OPERATE UNDER PNB'S CHARTER. 
IN ANY EVENT, THE STATUTE TREATS MERGERS AND CONSOLIDATIONS ESSENTIALLY
ALIKE, COMPARE 12 U.S.C. (1958 ED., SUPP. IV) SEC. 215 WITH SEC. 215A,
AND IT IS NOT SUGGESTED THAT THE LEGAL QUESTION OF THE INSTANT CASE
WOULD BE AFFECTED BY WHETHER THE TRANSACTION IS TECHNICALLY A MERGER OR
A CONSOLIDATION.  THEREFORE, THROUGHOUT THIS OPINION WE USE THE TERM
"MERGER."    FN8  SECTION 1828(C) PROVIDES IN PERTINENT PART: 

"NO INSURED (BY FDIC) BANK SHALL MERGE OR CONSOLIDATE WITH ANY OTHER
INSURED BANK OR, EITHER DIRECTLY OR INDIRECTLY, ACQUIRE THE ASSETS OF,
OR ASSUME LIABILITY TO PAY ANY DEPOSITS MADE IN, ANY OTHER INSURED BANK
WITHOUT THE PRIOR WRITTEN CONSENT (I) OF THE COMPTROLLER OF THE
CURRENCY IF THE ACQUIRING, ASSUMING, OR RESULTING BANK IS TO BE A
NATIONAL BANK OR A DISTRICT OF COLUMBIA BANK, OR (II) OF THE BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM IF THE ACQUIRING, ASSUMING, OR
RESULTING BANK IS TO BE A STATE MEMBER BANK (EXCEPT A DISTRICT BANK),
OR (III) OF THE FEDERAL DEPOSIT INSURANCE CORPORATION IF THE ACQUIRING,
ASSUMING, OR RESULTING BANK IS TO BE A NONMEMBER INSURED BANK (EXCEPT A
DISTRICT BANK)  ...  .  IN GRANTING OR WITHHOLDING CONSENT UNDER THIS
SUBSECTION, THE COMPTROLLER, THE BOARD, OR THE CORPORATION, AS THE CASE
MAY BE, SHALL CONSIDER THE FINANCIAL HISTORY AND CONDITION OF EACH OF
THE BANKS INVOLVED, THE ADEQUACY OF ITS CAPITAL STRUCTURE, ITS FUTURE
EARNINGS PROSPECTS, THE GENERAL CHARACTER OF ITS MANAGEMENT, THE
CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE SERVED, AND WHETHER OR NOT
ITS CORPORATE POWERS ARE CONSISTENT WITH THE PURPOSES OF THIS CHAPTER. 
IN THE CASE OF A MERGER, CONSOLIDATION, ACQUISITION OF ASSETS, OR
ASSUMPTION OF LIABILITIES, THE APPROPRIATE AGENCY SHALL ALSO TAKE INTO
CONSIDERATION THE EFFECT OF THE TRANSACTION ON COMPETITION (INCLUDING
ANY TENDENCY TOWARD MONOPOLY), AND SHALL NOT APPROVE THE TRANSACTION
UNLESS, AFTER CONSIDERING ALL OF SUCH FACTORS, IT FINDS THE TRANSACTION
TO BE IN THE PUBLIC INTEREST.  IN THE INTERESTS OF UNIFORM STANDARDS,
BEFORE ACTING ON A MERGER, CONSOLIDATION, ACQUISITION OF ASSETS, OR
ASSUMPTION OF LIABILITIES UNDER THIS SUBSECTION, THE AGENCY (UNLESS IT
FINDS THAT IT MUST ACT IMMEDIATELY IN ORDER TO PREVENT THE PROBABLE
FAILURE OF ONE OF THE BANKS INVOLVED) SHALL REQUEST A REPORT ON THE
COMPETITIVE FACTORS INVOLVED FROM THE ATTORNEY GENERAL AND THE OTHER
TWO BANKING AGENCIES REFERRED TO IN THIS SUBSECTION  ...  .  THE
COMPTROLLER, THE BOARD, AND THE CORPORATION SHALL EACH INCLUDE IN ITS
ANNUAL REPORT TO THE CONGRESS A DESCRIPTION OF EACH MERGER,
CONSOLIDATION, ACQUISITION OF ASSETS, OR ASSUMPTION OF LIABILITIES
APPROVED BY IT DURING THE PERIOD COVERED BY THE REPORT, ALONG WITH THE
FOLLOWING INFORMATION:  ...  A STATEMENT BY THE COMPTROLLER, THE BOARD,
OR THE CORPORATION, AS THE CASE MAY BE, OF THE BASIS FOR ITS
APPROVAL." 

FN9  SEE 12 U.S.C. SEC. 84, P. 329, SUPRA.  THE RESULTING BANK WOULD
HAVE A LENDING LIMIT OF $15,000,000, OF WHICH $1,000,000 WOULD NOT BE
ATTRIBUTABLE TO THE MERGER BUT TO UNRELATED ACCOUNTING FACTORS. 

FN10  THERE WAS EVIDENCE THAT PHILADELPHIA, ALTHOUGH IT RANKS FOURTH
OR FIFTH AMONG THE NATION'S URBAN AREAS IN TERMS OF GENERAL COMMERCIAL
ACTIVITY, RANKS ONLY NINTH IN TERMS OF THE SIZE OF ITS LARGEST BANK,
AND THAT SOME LARGE BUSINESS FIRMS WHICH HAVE THEIR HEAD OFFICES IN
PHILADELPHIA MUST SEEK ELSEWHERE TO SATISFY THEIR BANKING NEEDS BECAUSE
OF THE INADEQUATE LENDING LIMITS OF PHILADELPHIA'S BANKS; FIRST
PENNSYLVANIA AND PNB, CURRENTLY THE TWO LARGEST BANKS IN PHILADELPHIA,
EACH HAVE A LENDING LIMIT OF $8,000,000.  GIRARD'S IS $6,000,000. 

APPELLEES OFFERED TESTIMONY THAT THE MERGER WOULD ENABLE CERTAIN
ECONOMIES OF SCALE, SPECIFICALLY, THAT IT WOULD ENABLE THE FORMATION OF
A MORE ELABORATE FOREIGN DEPARTMENT THAN EITHER BANK IS PRESENTLY ABLE
TO MAINTAIN.  BUT THIS ATTEMPTED JUSTIFICATION, WHICH WAS NOT MENTIONED
BY THE DISTRICT COURT IN ITS OPINION AND HAS NOT BEEN DEVELOPED WITH
ANY FULLNESS BEFORE THIS COURT, WE CONSIDER ABANDONED. 

FN11  WE REJECT THE ARGUMENT THAT SEC. 11 OF THE CLAYTON ACT, AS
AMENDED, 15 U.S.C.  SEC. 21, CONFERS JURISDICTION OVER BANKS UPON THE
FTC.  THAT SECTION PROVIDES IN PERTINENT PART:  "AUTHORITY TO ENFORCE
COMPLIANCE WITH SECTIONS 13, 14, 18, AND 19 OF THIS TITLE (SECS. 2, 3,
7, AND 8 OF THE CLAYTON ACT, AS AMENDED) BY THE PERSONS RESPECTIVELY
SUBJECT THERETO IS VESTED  ... IN THE FEDERAL RESERVE BOARD WHERE
APPLICABLE TO BANKS, BANKING ASSOCIATIONS, AND TRUST COMPANIES; AND IN
THE FEDERAL TRADE COMMISSION WHERE APPLICABLE TO ALL OTHER CHARACTER OF
COMMERCE  ...  ."  THE ARGUMENT IS THAT SINCE THE FRB HAS NO AUTHORITY
TO ENFORCE THE CLAYTON ACT AGAINST BANK MERGERS, SEE NOTE 22, INFRA,
BANK MERGERS MUST FALL INTO THE RESIDUAL CATEGORY OF "ALL OTHER
CHARACTER OF COMMERCE" AND SO BE SUBJECT TO THE FTC.  HOWEVER, THERE IS
NO INTIMATION IN THE LEGISLATIVE HISTORY OF THE 1950 AMENDMENT TO SECS.
7 AND 11 THAT THE FTC'S TRADITIONAL LACK OF JURISDICTION OVER BANKS WAS
TO BE DISTURBED.  MOREOVER, IT IS CLEAR FROM THE LANGUAGE OF SEC. 11
THAT "BANKS, BANKING ASSOCIATIONS, AND TRUST COMPANIES" ARE MEANT TO
COMPRISE A DISTINCT "CHARACTER OF COMMERCE," AND SO CANNOT BE PART OF
THE "OTHER CHARACTER OF COMMERCE" RESERVED TO THE FTC. 

THE EXCLUSION OF BANKS FROM THE FTC'S JURISDICTION APPEARS TO HAVE
BEEN MOTIVATED BY THE FACT THAT BANKS WERE ALREADY SUBJECT TO EXTENSIVE
FEDERAL ADMINISTRATIVE CONTROLS.  SEE T.C. HURST & SON V. FEDERAL TRADE
COMM'N, 268 F. 874, 877 (D.C.E.D. VA. 1920). 

FN12  NO ARGUMENT IS MADE IN THIS CASE THAT BANKING IS NOT COMMERCE,
AND THEREFORE THAT SEC. 7 IS INAPPLICABLE; PLAINLY, SUCH AN ARGUMENT
WOULD HAVE NO MERIT.  SEE TRANSAMERICA CORP. V. BOARD OF GOVS.  OF FED.
RES. SYS., 206 F.2D 163, 166 (C.A. 3D CIR. 1953); CF.  UNITED STATES V.
SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533. 

FN13  "A MERGER NECESSARILY INVOLVES THE COMPLETE DISAPPEARANCE OF
ONE OF THE MERGING CORPORATIONS.  A SALE OF ASSETS, ON THE OTHER HAND,
MAY INVOLVE NO MORE THAN A SUBSTITUTION OF CASH FOR SOME PART OF THE
SELLING COMPANY'S PROPERTIES, WITH NO CHANGE IN CORPORATE STRUCTURE AND
NO CHANGE IN STOCKHOLDER INTERESTS.  SHAREHOLDERS OF MERGING
CORPORATIONS SURRENDER THEIR INTERESTS IN THOSE CORPORATIONS IN
EXCHANGE FOR THEIR VERY DIFFERENT RIGHTS IN THE RESULTING CORPORATION. 
IN AN ASSET ACQUISITION, HOWEVER, THE SHAREHOLDERS OF THE SELLING
CORPORATION OBTAIN NO INTEREST IN THE PURCHASING CORPORATION AND RETAIN
NO INTEREST IN THE ASSETS TRANSFERRED.  IN A MERGER, UNLIKE AN ASSET
ACQUISITION, THE RESULTING FIRM AUTOMATICALLY ACQUIRES ALL THE RIGHTS,
POWERS, FRANCHISES, LIABILITIES, AND FIDUCIARY RIGHTS AND OBLIGATIONS
OF THE MERGING FIRMS.  IN A MERGER, BUT NOT IN AN ASSET ACQUISITION,
THERE IS THE LIKELIHOOD OF A CONTINUITY OF MANAGEMENT AND OTHER
PERSONNEL.  FINALLY, A MERGER, LIKE A STOCK ACQUISITION, NECESSARILY
INVOLVES THE ACQUISITION BY ONE CORPORATION OF AN IMMEDIATE VOICE IN
THE MANAGEMENT OF THE BUSINESS OF ANOTHER CORPORATION; NO VOICE IN THE
DECISIONS OF ANOTHER CORPORATION IS ACQUIRED BY PURCHASE OF SOME PART
OF ITS ASSETS."  BRIEF FOR THE UNITED STATES, 75-76. 

FN14  "A MERGER SUCH AS APPELLEES' MAY BE EFFECTED UPON THE
AFFIRMATIVE VOTE OF THE HOLDERS OF ONLY TWO-THIRDS OF THE OUTSTANDING
STOCK OF EACH BANK  ...  BUT IF PNB WERE ACQUIRING ALL OF THE GIRARD
STOCK EACH GIRARD SHAREHOLDER COULD DECIDE FOR HIMSELF WHETHER TO
TRANSFER HIS SHARES.  A MERGER REQUIRES PUBLIC NOTICE WHEREAS STOCK CAN
BE ACQUIRED PRIVATELY.  A SHAREHOLDER DISSENTING FROM A MERGER HAS THE
RIGHT TO RECEIVE THE APPRAISED VALUE OF HIS SHARES  ...  WHEREAS NO
SHAREHOLDER HAS A COMPARABLE RIGHT IN AN ACQUISITION OF STOCK. 
FURTHERMORE THE CORPORATE EXISTENCE OF A MERGED COMPANY IS TERMINATED
BY A MERGER, BUT REMAINS UNAFFECTED BY AN ACQUISITION OF STOCK."  BRIEF
FOR APPELLEES, 30-31. 

FN15  THE LEGISLATIVE HISTORY OF THE 1914 ACT IS REVIEWED IN BROWN
SHOE CO. V. UNITED STATES, 370 U.S. 294, 313-314, AND NOTES 22-24. 

FN16  IN THE CASE OF AN ACQUISITION LIKE THE INSTANT ONE, IN WHICH
SHARES IN THE ACQUIRED CORPORATION ARE TO BE EXCHANGED FOR SHARES IN
THE RESULTING CORPORATION, A FORTIORI WE DISCERN NO DIFFICULTY IN
CONCEPTUALIZING THE TRANSACTION AS A "STOCK ACQUISITION."  COMPARE NOTE
13, SUPRA. 

FN17  STATEMENTS TO THE SAME EFFECT MAY BE FOUND IN, E.G., BROWN SHOE
CO., SUPRA, AT 313-314, 316; UNITED STATES V. E.I. DU PONT DE NEMOURS &
CO., 353 U.S. 586, 592; UNITED STATES V. COLUMBIA STEEL CO., 334 U.S.
495, 507, N. 7; UNITED STATES V. COLUMBIA PICTURES CORP., 189 F. SUPP.
153, 182 (D.C.S.D.N.Y. 1960).  SEE ALSO 33 OP. ATTY. GEN. 225, 241
(1922); HERNACKI, MERGERISM AND SECTION 7 OF THE CLAYTON ACT, 20 GEO.
WASH. L. REV. 659, 676-677 (1952); WEMPLE AND CUTLER, THE FEDERAL BANK
MERGER LAW AND THE ANTITRUST LAWS, 16 BUS.  LAW.  994, 999-1000 (1961);
NOTE, SECTION 7 OF THE CLAYTON ACT:  A LEGISLATIVE HISTORY, 52 COL. L.
REV. 766, 768-769 (1952). 

ACTUALLY, THE HOLDINGS IN THE THREE CASES THAT REACHED THIS COURT,
THATCHER, SWIFT, AND ARROW-HART, WERE QUITE NARROW.  SEE GENERALLY
NOTE, 26 COL. L. REV. 594-596 (1926).  THEY WERE BASED NOT ON A LACK OF
SUBSTANTIVE POWER UNDER SEC. 7, BUT ON THE ENFORCEMENT SECTION, SEC.
11, WHICH LIMITED THE FTC'S REMEDIAL POWERS TO "AN ORDER REQUIRING SUCH
PERSON TO CEASE AND DESIST FROM SUCH VIOLATIONS (OF SECS. 2, 3, 7, AND
8 OF THE CLAYTON ACT), AND DIVEST ITSELF OF THE STOCK HELD OR RID
ITSELF OF THE DIRECTORS CHOSEN CONTRARY TO THE PROVISIONS OF SECTIONS
SEVEN AND EIGHT OF THIS ACT."  38 STAT. 735.  FACED WITH CONGRESS'
EVIDENT REFUSAL TO CONFER UPON THE FTC THE ORDINARY POWERS OF A COURT
OF EQUITY, THIS COURT HELD THAT UNLESS THE ASSETS WERE ACQUIRED AFTER
THE FTC'S ORDER OF STOCK DIVESTITURE HAD BEEN ISSUED (WHICH WAS THE
CASE IN FEDERAL TRADE COMM'N V. WESTERN MEAT CO., SUPRA, WHERE THE
COMMISSION WAS SUSTAINED), THE COMMISSION COULD NOT ORDER A DIVESTITURE
OF ASSETS.  COMPARE BOARD OF GOVS.  OF FED. RES. SYS.  V. TRANSAMERICA
CORP., 184 F.2D 311 (C.A. 9TH CIR. 1950), WITH FEDERAL TRADE COMM'N V.
INTERNATIONAL PAPER CO., 241 F.2D 372 (C.A.2D CIR. 1956).  SINCE UNDER
THIS COURT'S DECISIONS THE FTC WAS POWERLESS EVEN WHERE THE TRANSFER OF
ASSETS WAS AN EVASIVE MANEUVER AIMED AT DEFEATING THE FTC'S REMEDIAL
JURISDICTION OVER STOCK ACQUISITIONS VIOLATIVE OF SEC. 7, A FORTIORI
THE COMMISSION WAS POWERLESS AGAINST THE TYPICAL MERGER.  SEE ARROW
HART & HEGEMAN ELEC.  CO. V. FEDERAL TRADE COMM'N, SUPRA, AT 595, 598
599.  AS PART OF THE 1950 AMENDMENTS TO THE CLAYTON ACT, SEC. 11 WAS
AMENDED TO READ:  "AN ORDER REQUIRING SUCH PERSON TO  ...  DIVEST
ITSELF OF THE STOCK, OR OTHER SHARE CAPITAL, OR ASSETS, HELD  ...  ." 
15 U.S.C. SEC. 21.  WHETHER AS AN ORIGINAL MATTER THATCHER, SWIFT AND
ARROW-HART WERE CORRECTLY DECIDED IS NO LONGER AN OPEN QUESTION, SINCE
THEY WERE THE EXPLICIT PREMISE OF THE 1950 AMENDMENT TO SEC. 7.  SEE
STATE BD. OF INS. V. TODD SHIPYARDS CORP., 370 U.S. 451, 458, P. 349,
INFRA. 

THE QUESTION OF THE FTC'S REMEDIAL POWERS UNDER SEC. 11 OF THE
CLAYTON ACT IS TO BE DISTINGUISHED FROM THAT OF ITS REMEDIAL POWERS
UNDER SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, 15 U.S.C. SEC.
45(B).  IN FEDERAL TRADE COMM'N V. EASTMAN KODAK CO., 274 U.S. 619, THE
COURT, RELYING ON THATCHER AND SWIFT, HELD THAT THE COMMISSION HAD NO
POWER TO ORDER DIVESTITURE IN SEC. 5 PROCEEDINGS.  BUT CF. GILBERTVILLE
TRUCKING CO. V. UNITED STATES, 371 U.S. 115, 129-131; PAN AMERICAN
WORLD AIRWAYS V. UNITED STATES, 371 U.S. 296, 312, AND N. 17. 

FN18  SEE NOTE 1, SUPRA, FOR TEXT OF AMENDED SEC. 7.  THE ORIGINAL
SEC. 7 READ IN PERTINENT PART: "NO CORPORATION ENGAGED IN COMMERCE
SHALL ACQUIRE, DIRECTLY OR INDIRECTLY, THE WHOLE OR ANY PART OF THE
STOCK OR OTHER SHARE CAPITAL OF ANOTHER CORPORATION ENGAGED ALSO IN
COMMERCE, WHERE THE EFFECT OF SUCH ACQUISITION MAY BE TO SUBSTANTIALLY
LESSEN COMPETITION BETWEEN THE CORPORATION WHOSE STOCK IS SO ACQUIRED
AND THE CORPORATION MAKING THE ACQUISITION, OR TO RESTRAIN SUCH
COMMERCE IN ANY SECTION OR COMMUNITY, OR TEND TO CREATE A MONOPOLY OF
ANY LINE OF COMMERCE." 

THE PASSAGE OF THE 1950 AMENDMENT FOLLOWED MANY YEARS OF UNSUCCESSFUL
ATTEMPTS TO ENACT LEGISLATION PLUGGING THE ASSETS-ACQUISITION
LOOPHOLE.  SEE NOTE, 52 COL. L. REV.  766-767, NOTES 3 AND 4 (1952). 
TO BE SURE, THE 1950 AMENDMENT WAS INTENDED NOT ONLY TO ENLARGE THE
NUMBER OF TRANSACTIONS COVERED BY SEC. 7 BUT ALSO TO CHANGE THE TEST OF
ILLEGALITY.  THE LEGISLATIVE HISTORY PERTINENT TO THE LATTER POINT IS
REVIEWED IN BROWN SHOE CO., SUPRA, AT 315-323, AND IS NOT DIRECTLY
RELEVANT TO THE PRESENT DISCUSSION. 

FN19  "THE PURPOSE OF THE PROPOSED LEGISLATION (THE 1950 AMENDMENTS
TO SEC. 7) IS TO PREVENT CORPORATIONS FROM ACQUIRING ANOTHER
CORPORATION BY MEANS OF THE ACQUISITION OF ITS ASSETS, WHERE UNDER THE
PRESENT LAW IT IS PROHIBITED FROM ACQUIRING THE STOCK OF SAID
CORPORATION.  SINCE THE ACQUISITION OF STOCK IS SIGNIFICANT CHIEFLY
BECAUSE IT IS LIKELY TO RESULT IN CONTROL OF THE UNDERLYING ASSETS,
FAILURE TO PROHIBIT DIRECT PURCHASE OF THE SAME ASSETS HAS BEEN
INCONSISTENT AND PARADOXICAL AS TO THE OVER-ALL EFFECT OF EXISTING
LAW."  S. REP. NO. 1775, 81ST CONG., 2D SESS. 2.  THIS THEME PERVADED
CONGRESSIONAL CONSIDERATION OF THE PROPOSED AMENDMENTS.  SEE, E.G.,
H.R. REP. NO. 1191, 81ST CONG., 1ST SESS., PASSIM; HEARING BEFORE
SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY ON AMENDING
PP. 11-13, 28-29, 39, 117; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY ON CORPORATE MERGERS AND ACQUISITIONS, 81ST
CONG., 1ST AND 2D SESS. 4-5, 15, 20, 62-63, 126-129, 139, 321; 95 CONG.
REC. 11485 (CONGRESSMAN CELLER, SPONSOR OF THE BILL TO AMEND SEC. 7 IN
THE HOUSE: "THIS BILL SEEKS TO PLUG A LOOPHOLE IN THE PRESENT ANTITRUST
LAWS ...  .  IT IS TIME TO STOP, LOOK, AND LISTEN AND TO CALL A HALT TO
THE MERGER MOVEMENT THAT IS GOING ON IN THIS COUNTRY"), 11493-11494,
11497, 11502; 96 CONG.  REC. 16433, 16443. 

FN20 COLUMBIA STEEL INVOLVED THE CASH PURCHASE BY UNITED STATES STEEL
CORPORATION OF THE PHYSICAL ASSETS OF CONSOLIDATED STEEL CORPORATION;
THERE WAS NO EXCHANGE OF SHARES AND NO ALTERATION OF CONSOLIDATED'S
CORPORATE IDENTITY.  SEE TRANSCRIPT OF RECORD, UNITED STATES V.
COLUMBIA STEEL CO., 334 U.S. 495 (NO. 461, OCTOBER TERM, 1947), PP. 453
475.  AS A RESULT OF THE PURCHASE, IN ITS HORIZONTAL ASPECT, U.S. STEEL
CONTROLLED ABOUT 24% OF THE STRUCTURAL STEEL FABRICATING MARKET IN AN
11-STATE WESTERN AREA.  THIS COURT HELD THAT THE ACQUISITION COULD NOT
BE REACHED UNDER SEC. 7 OF THE CLAYTON ACT, SEE 334 U.S., AT 507, N. 7,
AND DID NOT VIOLATE THE SHERMAN ACT.  IT SHOULD BE NOTED, HOWEVER, THAT
THE COURT REGARDED THE 24% MARKET-SHARE FIGURE PROPOSED BY THE
GOVERNMENT AS A "DOUBTFUL ASSUMPTION" AND ALSO POINTED TO "UNUSUAL
CONDITIONS" TENDING TO MITIGATE THE ANTICOMPETITIVE EFFECT OF THE
ACQUISITION.  334 U.S., AT 529.  COLUMBIA STEEL WAS REPEATEDLY CITED BY
CONGRESSMEN CONSIDERING THE AMENDMENT OF SEC. 7 AS AN EXAMPLE OF WHAT
THEY CONCEIVED TO BE THE INABILITY OF THE SHERMAN ACT, AS THEN
CONSTRUED, TO DEAL WITH THE PROBLEMS OF CORPORATE CONCENTRATION.  SEE,
E.G., H.R. REP. NO. 1191, 81ST CONG., 1ST SESS. 10-11, AND N. 16;
HEARING BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE
JUDICIARY ON AMENDING SECTIONS 7 AND 11 OF THE CLAYTON ACT, 81ST CONG.,
1ST SESS., SER.  10, PP. 28, 73; HEARINGS BEFORE A SUBCOMMITTEE OF THE
SENATE COMMITTEE ON THE JUDICIARY ON CORPORATE MERGERS AND
ACQUISITIONS, 81ST CONG., 1ST AND 2D SESS. 24; 96 CONG. REC. 16453
(SENATOR KEFAUVER, SENATE SPONSOR OF THE BILL TO AMEND SEC. 7:  "THE
COLUMBIA STEEL CO. CASE IS A VIVID ILLUSTRATION OF THE NECESSITY FOR
THE PROPOSED AMENDMENT OF THE CLAYTON ACT"), 16503; AND CF. 96 CONG.
REC. 16498-16499. 

FN21  SEE NOTE 19, SUPRA.  THE CONGRESSIONAL ATTITUDE TOWARD THIS
COURT'S THATCHER, SWIFT, AND ARROW-HART DECISIONS IS TYPIFIED IN THIS
REMARK OF SENATOR O'CONOR'S:  "THE COURT, IN EFFECT, SAID THAT THE
FEDERAL TRADE COMMISSION WAS QUITE FREE TO USE THE POWER WHICH CONGRESS
HAD CONFERRED UPON IT, SO LONG AS IT CONFINED THE USE OF THAT POWER TO
ORDERING THE DIVESTITURE OF PIECES OF PAPER WHICH HAPPENED TO BE
WORTHLESS."  96 CONG. REC. 16433.  SENATOR O'MAHONEY REMARKED, FOR
EXAMPLE, THAT THERE WAS "NO DOUBT OF THE FUNDAMENTAL FACT THAT AN
INNOCENT DEFECT IN THE DRAFTING OF SECTION 7 OF THE CLAYTON ACT BACK IN
1914 HAD RESULTED IN CREATING A GREAT OPPORTUNITY FOR ESCAPE BY
FLAGRANT VIOLATORS OF THE LAW."  96 CONG. REC. 16443.  AFTER SHARPLY
CRITICIZING THIS COURT'S DECISIONS, THE SENATOR CONTINUED:  "I TAKE IT
THE RECORD IS PERFECTLY CLEAR THAT WHAT THIS BILL PURPORTS TO DO IS TO
CORRECT AN OMISSION IN THE ORIGINAL CLAYTON ACT.  WHEN THE AUTHORS OF
THE CLAYTON ACT AND THE CONGRESS WHICH PASSED IT ENACTED THE BILL INTO
LAW THEY THOUGHT THEY WERE GIVING THE FEDERAL TRADE COMMISSION
ADMINISTRATIVE AUTHORITY TO PREVENT MONOPOLISTIC MERGERS  ...  ." 
IBID.  SO ALSO, SENATOR KEFAUVER OBSERVED:  "IT WOULD HAVE BEEN MUCH
BETTER FOR THE ECONOMY OF THE COUNTRY TO HAVE REPEALED SECTIONS 7 AND
11 OF THE CLAYTON ACT RATHER THAN LET THIS WIDE-OPEN LOOPHOLE TO
REMAIN.  MOST OF THE LARGE AND MONOPOLISTIC MERGERS WHICH HAVE BECOME
DETRIMENTAL TO THE FREE-ENTERPRISE SYSTEM OF OUR NATION HAVE OCCURRED
BY WAY OF THIS PLAIN EVASION OF THE INTENT OF THE ORIGINAL CLAYTON
ACT."  96 CONG.  REC. 16451. 

FN22  A CASH PURCHASE OF ANOTHER BANK'S ASSETS WOULD NOT SEEM TO BE A
FULLY EFFECTIVE METHOD OF CORPORATE ACQUISITION.  IN OTHER INDUSTRIES,
A CASH PURCHASE OF PLANT, INVENTORY, PATENTS, TRADE SECRETS, AND THE
LIKE WILL OFTEN DIRECTLY ENHANCE THE COMPETITIVE POSITION OF THE
ACQUIRING CORPORATION, AS IN COLUMBIA STEEL CO. BUT A BANK DESIRING TO
INCREASE ITS SHARE OF BANKING BUSINESS THROUGH CORPORATE ACQUISITION
WOULD ORDINARILY NEED TO ACQUIRE THE OTHER BANK'S DEPOSITS AND CAPITAL,
NOT MERELY ITS ASSETS.  FOR MORE DEPOSITS MEAN MORE WORKING CAPITAL,
AND ADDITIONS TO CAPITAL AND SURPLUS INCREASE THE LENDING LIMIT.  A
CASH PURCHASE, IN EFFECT, ONLY SUBSTITUTES CASH FOR CASH, SINCE BANK
ASSETS CONSIST PRINCIPALLY OF CASH AND VERY LIQUID SECURITIES AND LOANS
RECEIVABLE, AND ADDS NOTHING TO THE ACQUIRING BANK'S CAPITAL AND
SURPLUS OR TO ITS WORKING CAPITAL.  TRUE, AN EXCHANGE OF ITS STOCK FOR
ASSETS WOULD ACHIEVE THE ACQUIRING BANK'S OBJECTIVES.  WE ARE CLEAR,
HOWEVER, THAT IN LIGHT OF CONGRESS' OVERRIDING PURPOSE, IN AMENDING
SEC. 7, TO CLOSE THE LOOPHOLE IN THE ORIGINAL SECTION, IF SUCH AN
EXCHANGE (OR OTHER CLEARLY EVASIVE TRANSACTION) WERE TANTAMOUNT IN ITS
EFFECTS TO A MERGER, THE EXCHANGE WOULD NOT BE AN "ASSETS" ACQUISITION
WITHIN THE MEANING OF SEC. 7 BUT WOULD BE TREATED AS A TRANSACTION
SUBJECT TO THAT SECTION. 

WE HAVE NOT OVERLOOKED THE FACT THAT THERE ARE CORPORATIONS IN OTHER
INDUSTRIES NOT SUBJECT TO THE FTC'S JURISDICTION.  CHIEF AMONG THESE
ARE AIR CARRIERS SUBJECT TO THE CIVIL AERONAUTICS BOARD AND OTHER
CARRIERS SUBJECT TO THE INTERSTATE COMMERCE COMMISSION.  BOTH AGENCIES
HAVE BEEN GIVEN, EXPRESSLY, BROAD POWERS TO EXEMPT MERGERS AND
ACQUISITIONS IN WHATEVER FORM FROM THE ANTITRUST LAWS.   SEE 49 U.S.C.
SECS. 1378, 1384; 49 U.S.C. SEC. 5(11) AND (13).  THEREFORE, THE
EXCLUSION OF ASSETS ACQUISITIONS IN SUCH INDUSTRIES FROM SEC. 7 WOULD
SEEM TO HAVE LITTLE SIGNIFICANCE. 

AUTHORITY TO ENFORCE SEC. 7 "WHERE APPLICABLE TO BANKS."  THIS
PROVISION HAS BEEN IN THE ACT SINCE IT WAS FIRST PASSED IN 1914 AND WAS
NOT CHANGED BY THE 1950 AMENDMENTS.  THE BANK MERGER ACT OF 1960,
ASSIGNING ROLES IN MERGER APPLICATIONS TO THE FDIC AND THE COMPTROLLER
OF THE CURRENCY AS WELL AS TO THE FRB, PLAINLY SUPPLANTED, WE THINK,
WHATEVER AUTHORITY THE FRB MAY HAVE ACQUIRED UNDER SEC. 11, BY VIRTUE
OF THE AMENDMENT OF SEC. 7, TO ENFORCE SEC. 7 AGAINST BANK MERGERS. 
SINCE THE BANK MERGER ACT APPLIES ONLY TO MERGERS, CONSOLIDATIONS,
ACQUISITIONS OF ASSETS, AND ASSUMPTIONS OF LIABILITIES BUT NOT TO
OUTRIGHT STOCK ACQUISITIONS, THE FRB'S AUTHORITY UNDER SEC. 11 AS IT
EXISTED BEFORE THE 1950 AMENDMENT OF SEC. 7 REMAINS UNAFFECTED.  SEE,
E.G., TRANSAMERICA CORP. V. BOARD OF GOVS.  OF FED. RES. SYS., 206 F.2D
163 (C.A. 3D CIR. 1953). 

NOTHING IN THIS OPINION, OF COURSE, LIMITS THE POWER OF THE FTC,
UNDER SECS. 7 AND 11, AS AMENDED, TO REACH ANY TRANSACTION, INCLUDING
MERGERS AND CONSOLIDATIONS, IN THE BROAD RANGE BETWEEN AND INCLUDING
PURE STOCK AND PURE ASSETS ACQUISITIONS, WHERE THE ACQUIRING
CORPORATION IS SUBJECT TO THE FTC'S JURISDICTION, SEE 15 U.S.C.  SEC.
45(A)(6), AND TO ORDER DIVESTITURE OF THE STOCK, SHARE CAPITAL, OR
ASSETS ACQUIRED IN THE TRANSACTION, SEE 15 U.S.C. SEC. 21. 

FN23  SEE, E.G., STATEMENT OF ASSISTANT ATTORNEY GENERAL BERGSON:  "IF
IT (SEC. 7) IS TO HAVE ANY SIGNIFICANT EFFECT FOR THE FUTURE, IT IS
ESSENTIAL THAT IT BE AMENDED SO THAT THE FEDERAL TRADE COMMISSION WILL
BE IN A POSITION TO DEAL WITH THE MERGER PROBLEM AS IT EXISTS TODAY." 
HEARING BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE
JUDICIARY ON AMENDING SECTIONS 7 AND 11 OF THE CLAYTON ACT, 81ST CONG.,
1ST SESS., SER.  10, P. 28.  SEE ALSO 96 CONG. REC. 16437, 16452-16453;
95 CONG. REC. 11490-11491, 11499, 11504 (REPRESENTATIVE BYRNE: "THE
SUGGESTED AMENDMENT TO SECTIONS 7 AND 11 OF THE CLAYTON ACT WOULD
MERELY GIVE THE (FEDERAL TRADE) COMMISSION THE SAME POWER IN REGARD TO
ASSET ACQUISITIONS THAT IT ALREADY POSSESSES OVER ACQUISITIONS OF
STOCK.  THIS WOULD CLOSE THE LOOPHOLE AND RESTORE MEANING TO THE
STATUTE."). 

FN24  SEE, E.G., STAFF OF SUBCOMMITTEE NO. 5 OF HOUSE COMMITTEE ON
THE JUDICIARY, 82D CONG., 2D SESS., BANK MERGERS AND CONCENTRATION OF
BANKING FACILITIES (1952) VII; H.R. 5948, PRINTED IN 102 CONG. REC.
2108-2109 (1956); HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON BANKING AND CURRENCY ON THE FINANCIAL INSTITUTIONS ACT OF
1957, 85TH CONG., 1ST SESS., PT. 2, P. 1030 (TESTIMONY OF ATTORNEY
GENERAL BROWNELL); H.R. REP. NO. 1416, REGULATION OF BANK MERGERS, 86TH
CONG., 2D SESS. 9; S. REP. NO. 196, REGULATION OF BANK MERGERS, 86TH
CONG., 1ST SESS. 1-2, 5. 

FN25  SEE, E.G., REMARKS OF REPRESENTATIVE SPENCE:  "THE CLAYTON ACT
IS INEFFECTIVE AS TO BANK MERGERS BECAUSE IN THE CASE OF BANKS IT
COVERS ONLY STOCK ACQUISITIONS AND BANK MERGERS ARE NOT ACCOMPLISHED
THAT WAY."  106 CONG. REC. 7257 (1960).  SEE ALSO NOTE 24, SUPRA. 

FN26  THIS CONTENTION WAS ABANDONED ON APPEAL.  WE CONSIDER IT,
NEVERTHELESS, BECAUSE IT TOUCHES THE PROPER RELATIONS OF THE JUDICIAL
AND ADMINISTRATIVE SPHERES.  UNITED STATES V. WESTERN PAC. R. CO., 352
U.S. 59, 63. 

FN27  CONTRAST THIS WITH THE EXPRESS EXEMPTION PROVISIONS OF, E.G.,
THE FEDERAL AVIATION ACT, 49 U.S.C. SEC. 1384; FEDERAL COMMUNICATIONS
ACT, 47 U.S.C. SECS 221(A), 222(C)(1); INTERSTATE COMMERCE ACT, 49
U.S.C. SECS. 5(11), 5B(9), 22; SHIPPING ACT, 46 U.S.C. (1958 ED. SUPP.
III) SEC. 814; WEBB-POMERENE ACT, 15 U.S.C. SEC. 62; AND THE CLAYTON
ACT ITSELF, SEC. 7, 15 U.S.C. SEC. 18. 

FN28  SEE UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S.
290, 314-315; UNITED STATES V. JOINT TRAFFIC ASSN., 171 U.S. 505;
NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197, 343 (PLURALITY
OPINION), 374-376 (DISSENTING OPINION); UNITED STATES V. PACIFIC &
ARCTIC RY. & NAV. CO., 228 U.S. 87, 105, 107; KEOGH V. CHICAGO & N.W.R.
CO., 260 U.S. 156, 161-162; CENTRAL TRANSFER CO. V. TERMINAL RAILROAD
ASSN., 288 U.S. 469, 474-475; TERMINAL WAREHOUSE CO. V. PENNSYLVANIA R.
CO., 297 U.S. 500, 513-515; UNITED STATES V. BORDEN CO., 308 U.S. 188,
197-206; UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 226-228;
GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 456-457; UNITED STATES
ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S. 196, 205-206; ALLEN
BRADLEY CO. V. LOCAL UNION NO. 3, 325 U.S. 797, 809-810; NORTHERN PAC.
R. CO. V. UNITED STATES, 356 U.S. 1; UNITED STATES V. RADIO CORP. OF
AMERICA, 358 U.S. 334; MARYLAND & VA. MILK PRODUCERS ASSN. V. UNITED
STATES, 362 U.S. 458, 464-467; CALIFORNIA V. FEDERAL POWER COMM'N, 369
U.S. 482; PAN AMERICAN WORLD AIRWAYS V. UNITED STATES, 371 U.S. 296,
304, 305; SILVER V. NEW YORK STOCK EXCHANGE, 373 U.S. 341. 

FN29  SEE, E.G., KEOGH V. CHICAGO & N.W.R. CO., SUPRA, AT 163; PAN
AMERICAN WORLD AIRWAYS V. UNITED STATES, SUPRA, AT 309-310.  CF. TEXAS
& PAC. R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426. 

FN30  WITH RESPECT TO THE QUESTION (UPON WHICH WE INTIMATE NO VIEW)
WHETHER JUDICIAL REVIEW OF THE COMPTROLLER'S DECISION IS POSSIBLE
NOTWITHSTANDING THE ABSENCE OF A SPECIFIC PROVISION, SEE NOTE, 75 HARV.
L. REV. 756, 762-763 (1962); NOTE, 37 N.Y.U.L.  REV. 735, 750, N. 95
(1962); CF. 1 DAVIS, ADMINISTRATIVE LAW (1958), SEC. 4.04. 

FN31  SEE GENERALLY JAFFE, PRIMARY JURISDICTION RECONSIDERED.  THE
ANTI-TRUST LAWS, 102 U. OF PA. L. REV. 577 (1954); LATTA, PRIMARY
JURISDICTION IN THE REGULATED INDUSTRIES AND THE ANTITRUST LAWS, 30 U.
OF CIN.  L. REV. 261 (1961); NOTE, REGULATED INDUSTRIES AND THE
ANTITRUST LAWS:  SUBSTANTIVE AND PROCEDURAL COORDINATION, 58 COL. L.
REV. 673 (1958). 

FN32  IN CALIFORNIA V. FEDERAL POWER COMM'N, SUPRA, THE COURT HELD
THAT THE FPC MUST STAY ITS PROCEEDING ON A MERGER APPLICATION UNTIL THE
COMPLETION OF A PENDING ANTITRUST SUIT BY THE JUSTICE DEPARTMENT; A
FORTIORI, THE COURT ENTERTAINING THE SUIT WOULD NOT BE REQUIRED TO
ABSTAIN PENDING CONSIDERATION OF THE MERGER APPLICATION BY THE FPC.  WE
NEED NOT AND DO NOT CONSIDER THE QUESTION WHETHER THE CALIFORNIA
DECISION WOULD CONTROL HERE HAD THE COMPTROLLER BEEN DENIED AN
OPPORTUNITY TO APPROVE THE MERGER BEFORE THE ANTITRUST SUIT WAS
COMMENCED. 

FN33  CF. UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 425
(C.A.2D CIR. 1945).  IN THE INSTANT CASE, UNLIKE ALUMINUM CO., THERE IS
VIRTUALLY NO TIME LAG BETWEEN THE BANKS' FURNISHING COMPETING FINANCIAL
INSTITUTIONS (SMALL-LOAN COMPANIES, FOR EXAMPLE) WITH THE RAW MATERIAL,
I.E., MONEY, AND THE INSTITUTIONS' SELLING THE FINISHED PRODUCT, I.E.,
LOANS; HENCE THE INSTANT CASE, COMPARED WITH ALUMINUM CO. IN THIS
RESPECT, IS A FORTIORI.  AS ONE BANKER TESTIFIED QUITE FRANKLY IN THE
INSTANT CASE IN RESPONSE TO THE QUESTION:  "DO YOU FEEL THAT YOU ARE IN
SUBSTANTIAL COMPETITION WITH THESE INSTITUTIONS (PERSONAL-FINANCE AND
SALES-FINANCE COMPANIES) THAT YOU LEND  ...  SUCH MONEY TO FOR LOANS
THAT YOU WANT TO MAKE?"  - "OH, NO, WE DEFINITELY DO NOT.  IF WE DID,
WE WOULD STOP MAKING THE LOANS TO THEM."  (R. 298.)  THE REASON FOR THE
COMPETITIVE DISADVANTAGE OF MOST LENDING INSTITUTIONS VIS-A-VIS BANKS
IS THAT ONLY BANKS OBTAIN THE BULK OF THEIR WORKING CAPITAL WITHOUT
HAVING TO PAY INTEREST OR COMPARABLE CHARGES THEREON, BY VIRTUE OF
THEIR UNIQUE POWER TO ACCEPT DEMAND DEPOSITS.  THE CRITICAL AREA OF
SHORT-TERM COMMERCIAL CREDIT, SEE PP. 326-327, SUPRA, APPEARS TO BE ONE
IN WHICH BANKS HAVE LITTLE EFFECTIVE COMPETITION, SAVE IN THE CASE OF
VERY LARGE COMPANIES WHICH CAN MEET THEIR FINANCING NEEDS FROM RETAINED
EARNINGS OR FROM ISSUING SECURITIES OR PAPER. 

FN34  AS ONE WITNESS FOR THE DEFENDANTS TESTIFIED: 

"WE HAVE HAD IN PHILADELPHIA FOR 50 YEARS OR MORE THE MUTUAL SAVINGS
BANKS OFFERING 1/2 PER CENT AND IN SOME INSTANCES MORE THAN 1/2 PER
CENT HIGHER INTEREST THAN THE COMMERCIAL BANKS.  NEVERTHELESS, THE RATE
OF INCREASE IN SAVINGS ACCOUNTS IN COMMERCIAL BANKS HAS KEPT PACE WITH
AND IN MANY OF THE BANKS EXCEEDED THE RATE OF INCREASE OF THE MUTUAL
BANKS PAYING 3 1/2 PER CENT  ...  . 

"I HAVE MADE SOME INQUIRIES.  THERE ARE FOUR BANKS ON THE CORNER OF
BROAD AND CHESTNUT.  THREE OF THEM ARE COMMERCIAL BANKS ALL OFFERING 3
PER CENT, AND ONE IS A MUTUAL SAVINGS BANK OFFERING 3 1/2.  AS FAR AS I
HAVE BEEN ABLE TO DISCOVER, THERE ISN'T ANYBODY IN PHILADELPHIA WHO
WILL TAKE THE TROUBLE TO WALK ACROSS BROAD STREET TO GET 1/2 OF 1 PER
CENT MORE INTEREST.  IF YOU ASK ME WHY, I WILL SAY I DO NOT KNOW. 
HABIT, CUSTOM, PERSONAL RELATIONSHIPS, CONVENIENCE, DOING ALL YOUR
BANKING UNDER ONE ROOF APPEAR TO BE FACTORS SUPERIOR TO CHANGES IN THE
INTEREST RATE LEVEL."  (R. 1388-1389.)    FN35  CONSIDER THE FOLLOWING
COLLOQUY BETWEEN GOVERNMENTAL COUNSEL AND A WITNESS FOR THE
DEFENDANTS: 

"Q.  WHAT DO YOU CONSIDER TO BE THE AREA OF A BRANCH OFFICE? 

"A.  WELL, THERE IS NO SET RULE ON THAT.  WE HOPE TO HAVE AN AREA
FROM 1 1/2 TO 2 MILES. 

"HOWEVER, WE HAVE OPENED BRANCHES DIRECTLY IN THE COMMUNITIES WHERE
OTHER BANKS ARE ESTABLISHED, IN FACT, ACROSS THE STREET FROM THEM
BECAUSE IT IS NOT ONLY A QUESTION OF GETTING NEW BUSINESS, IT'S A
QUESTION OF SERVICING AND RETAINING THE ACCOUNTS THAT WE NOW HAVE. 

     *         *         *       *         *    "Q.  AND YOUR
BUSINESS IS NOT NECESSARILY DEPENDENT UPON IT (THE CUSTOMER) BEING
WITHIN A MILE OR TWO OF A BRANCH, IS IT? 

"A.  TO A LARGE DEGREE, IT IS, BECAUSE WE FOUND THAT WE WERE LOSING
DEPOSIT ACCOUNTS REGULARLY FROM OUR IN-TOWN OFFICES BECAUSE OTHER BANKS
WERE OPENING OR HAD OFFICES IN OTHER SECTIONS OF THE CITY; AND IN ORDER
TO RETAIN THOSE ACCOUNTS AND TO GET ADDITIONAL BUSINESS WE FELT IT WAS
NECESSARY TO ESTABLISH BRANCHES."  (R. 1815.) 

AS FAR AS THE CUSTOMER FOR A BANK LOAN IS CONCERNED, "THE SIZE OF HIS
MARKET IS SOMEWHAT DEPENDENT UPON HIS OWN SIZE, HOW WELL HE IS KNOWN,
AND SO ON.  FOR EXAMPLE, FOR SMALL BUSINESS CONCERNS KNOWN PRIMARILY
LOCALLY, THEY MAY CONSIDER THAT THEIR MARKET IS A STRICTLY LOCAL ONE,
AND THEY MAY BE FORCED BY CIRCUMSTANCES TO DO BUSINESS WITH BANKS IN A
NEARBY GEOGRAPHIC RELATIONSHIP TO THEM.  ON THE OTHER HAND, AS
BUSINESSES INCREASE IN SIZE, THE SCOPE OF THEIR BUSINESS ACTIVITIES,
THEIR NATIONAL REPUTATION, THE ALTERNATIVES THEY HAVE AVAILABLE TO THEM
WILL BE SPREAD AGAIN OVER A VERY LARGE AREA, POSSIBLY AS LARGE AS THE
ENTIRE UNITED STATES."  (R. 1372.)  (DEFENDANTS' TESTIMONY ON DIRECT
EXAMINATION.) 

FN36 THE FIGURES FOR PNB AND GIRARD RESPECTIVELY ARE:  54% AND 63% OF
THE DOLLAR VOLUME OF THEIR COMMERCIAL AND INDUSTRIAL LOANS ORIGINATE IN
THE FOUR-COUNTY AREA; 75% AND 70%, PERSONAL LOANS; 74% AND 84%, REAL
ESTATE LOANS; 41% AND 62%, LINES OF CREDIT; 94% AND 72%, PERSONAL
TRUSTS; 81% AND 94%, TIME AND SAVINGS DEPOSITS; 56% AND 77%, DEMAND
DEPOSITS; 93% AND 87%, DEMAND DEPOSITS OF INDIVIDUALS.  ACTUALLY, THESE
FIGURES MAY BE TOO LOW.  THE EVIDENCE DISCLOSES THAT MOST OF THE
BUSINESS DONE OUTSIDE THE AREA IS WITH LARGE BORROWERS AND LARGE
DEPOSITORS; APPELLEES DO NOT, BY AND LARGE, DEAL WITH SMALL BUSINESSMEN
AND AVERAGE INDIVIDUALS NOT LOCATED IN THE FOUR-COUNTY AREA.  FOR
EXAMPLE, OF APPELLEES' COMBINED TOTAL BUSINESS DEMAND DEPOSITS UNDER
$10,000, 94% ORIGINATE IN THE FOUR-COUNTY AREA.  THIS REINFORCES THE
THESIS THAT THE SMALLER THE CUSTOMER, THE SMALLER IS HIS BANKING MARKET
GEOGRAPHICALLY.  SEE NOTE 35, SUPRA. 

THE APPELLEES CONCEDE THAT THE FOUR-COUNTY AREA HAS SUFFICIENT
COMMERCIAL IMPORTANCE TO QUALIFY, UNDER BROWN SHOE CO., SUPRA, AT 336
337, AS A "SECTION OF THE COUNTRY" WITHIN THE MEANING OF SEC. 7.   SEE
MARYLAND & VA. MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458,
469; CF. UNITED STATES V. YELLOW CAB CO., 332 U.S. 218, 226; INDIANA
FARMER'S GUIDE PUBLISHING CO. V. PRAIRIE FARMER PUBLISHING CO., 293
U.S. 268, 279. 

FN37  APPELLEES SUGGEST NOT THAT BANK OFFICES SKIRTING THE FOUR
COUNTY AREA PROVIDE MEANINGFUL ALTERNATIVES TO BANK CUSTOMERS WITHIN
THE AREA, BUT THAT SUCH ALTERNATIVES ARE PROVIDED BY LARGE BANKS, FROM
NEW YORK AND ELSEWHERE, WHICH SOLICIT BUSINESS IN THE PHILADELPHIA
AREA.  THERE IS NO EVIDENCE OF THE AMOUNT OF BUSINESS DONE IN THE AREA
BY BANKS WITH OFFICES OUTSIDE THE AREA; IT MAY BE THAT SUCH FIGURES ARE
UNOBTAINABLE.  IN ANY EVENT, IT WOULD SEEM FROM THE LOCAL ORIENTATION
OF BANKING INSOFAR AS SMALLER CUSTOMERS ARE CONCERNED, SEE NOTES 35 AND
36, SUPRA, THAT COMPETITION FROM OUTSIDE THE AREA WOULD ONLY BE
IMPORTANT TO THE LARGER BORROWERS AND DEPOSITORS.  IF SO, THE FOUR
COUNTY AREA REMAINS A VALID GEOGRAPHICAL MARKET IN WHICH TO ASSESS THE
ANTICOMPETITIVE EFFECT OF THE PROPOSED MERGER UPON THE BANKING
FACILITIES AVAILABLE TO THE SMALLER CUSTOMER - A PERFECTLY GOOD "LINE
OF COMMERCE," IN LIGHT OF CONGRESS' EVIDENT CONCERN, IN ENACTING THE
1950 AMENDMENTS TO SEC. 7, WITH PRESERVING SMALL BUSINESS.  SEE BROWN
SHOE CO., SUPRA, AT 315-316.  AS A PRACTICAL MATTER THE SMALL
BUSINESSMAN CAN ONLY SATISFY HIS CREDIT NEEDS AT LOCAL BANKS.  TO BE
SURE, THERE IS STILL SOME ARTIFICIALITY IN DEEMING THE FOUR-COUNTY AREA
THE RELEVANT "SECTION OF THE COUNTRY" SO FAR AS BUSINESSMEN LOCATED
NEAR THE PERIMETER ARE CONCERNED.  BUT SUCH FUZZINESS WOULD SEEM
INHERENT IN ANY ATTEMPT TO DELINEATE THE RELEVANT GEOGRAPHICAL MARKET. 
NOTE, 52 COL. L. REV. 766, 778-779, N. 77 (1952).  AND IT IS NOTABLE
THAT OUTSIDE THE FOUR-COUNTY AREA, APPELLEES' BUSINESS RAPIDLY THINS
OUT.  THUS, THE OTHER SIX COUNTIES OF THE DELAWARE VALLEY ACCOUNT FOR
ONLY 2% OF APPELLEES' COMBINED INDIVIDUAL DEMAND DEPOSITS; 4%, DEMAND
DEPOSITS OF PARTNERSHIPS AND CORPORATIONS; 7%, LOANS; 2%, SAVINGS
DEPOSITS; 4%, BUSINESS TIME DEPOSITS. 

FN38  SEE KAYSEN AND TURNER, ANTITRUST POLICY (1959), 133; STIGLER,
MERGERS AND PREVENTIVE ANTITRUST POLICY, 104 U. OF PA. L. REV. 176, 182
(1955); BOK, SUPRA, AT 308-316, 328.  CF. MARKHAM, MERGER POLICY UNDER
THE NEW SECTION 7:  A SIX-YEAR APPRAISAL, 43 VA. L. REV. 489, 521-522
(1957). 

FN39  COMMENT, "SUBSTANTIALLY TO LESSEN COMPETITION  ...  ":  CURRENT
PROBLEMS OF HORIZONTAL MERGERS, 68 YALE L.J. 1627, 1638-1639 (1959);
SEE, E.G., MACHLUP, THE ECONOMICS OF SELLERS' COMPETITION (1952), 84
93, 333-336; BAIN, BARRIERS TO NEW COMPETITION (1956), 27.  CF. MASON,
MARKET POWER AND BUSINESS CONDUCT:  SOME COMMENTS, 46-2 AM. ECON. 
REV.  (1956), 471. 

FN40  SEE P. 331, SUPRA.  WE NOTE THREE FACTORS THAT CAUSE US TO
SHADE THE PERCENTAGES GIVEN EARLIER IN THIS OPINION, IN SEEKING TO
CALCULATE MARKET SHARE.  (1) THE PERCENTAGES TOOK NO ACCOUNT OF BANKS
WHICH DO BUSINESS IN THE FOUR-COUNTY AREA BUT HAVE NO OFFICES THERE;
HOWEVER, THIS SEEMS TO BE A FACTOR OF LITTLE IMPORTANCE, AT LEAST
INSOFAR AS SMALLER CUSTOMERS ARE CONCERNED, SEE NOTE 37, SUPRA.  (2)
THE PERCENTAGES TOOK NO ACCOUNT OF BANKS WHICH HAVE OFFICES IN THE FOUR
COUNTY AREA BUT NOT THEIR HOME OFFICES THERE; HOWEVER, THERE SEEM TO BE
ONLY TWO SUCH OFFICES AND APPELLEES IN THIS COURT MAKE NO REFERENCE TO
THIS OMISSION.  (3) THERE ARE NO PERCENTAGES FOR THE AMOUNT OF BUSINESS
OF BANKS LOCATED IN THE AREA, OTHER THAN APPELLEES, WHICH ORIGINATES IN
THE AREA.  APPELLEES CONTEND THAT SINCE MOST OF THE 40 OTHER BANKS ARE
SMALLER, THEY DO A MORE CONCENTRATEDLY LOCAL BUSINESS THAN APPELLEES,
AND HENCE ACCOUNT FOR A RELATIVELY LARGER PROPORTION OF SUCH BUSINESS. 
IF SO, WE DOUBT MUCH CORRECTION IS NEEDED.  THE FIVE LARGEST BANKS IN
THE FOUR-COUNTY AREA AT PRESENT CONTROL SOME 78% OF THE AREA BANKS'
ASSETS.  THUS, EVEN IF THE SMALL BANKS HAVE A SOMEWHAT DIFFERENT
PATTERN OF BUSINESS, IT IS DIFFICULT TO SEE HOW THAT WOULD
SUBSTANTIALLY DIMINISH THE APPELLEES' SHARE OF THE LOCAL BANKING
BUSINESS. 

NO EVIDENCE WAS INTRODUCED AS TO THE QUANTITATIVE SIGNIFICANCE OF
THESE THREE FACTORS, AND APPELLEES DO NOT CONTEND THAT AS A PRACTICAL
MATTER SUCH EVIDENCE COULD HAVE BEEN OBTAINED.  UNDER THE
CIRCUMSTANCES, WE THINK A DOWNWARD CORRECTION OF THE PERCENTAGES TO 30%
PRODUCES A CONSERVATIVE ESTIMATE OF APPELLEES' MARKET SHARE. 

FN41  KAYSEN AND TURNER, SUPRA, NOTE 38, SUGGEST THAT 20% SHOULD BE
THE LINE OF PRIMA FACIE UNLAWFULNESS; STIGLER SUGGESTS THAT ANY
ACQUISITION BY A FIRM CONTROLLING 20% OF THE MARKET AFTER THE MERGER IS
PRESUMPTIVELY UNLAWFUL; MARKHAM MENTIONS 25%.  BOK'S PRINCIPAL TEST IS
INCREASE IN MARKET CONCENTRATION, AND HE SUGGESTS A FIGURE OF 7% OR 8%.
AND CONSULT NOTE 20, SUPRA.  WE INTIMATE NO VIEW ON THE VALIDITY OF
SUCH TESTS FOR WE HAVE NO NEED TO CONSIDER PERCENTAGES SMALLER THAN
THOSE IN THE CASE AT BAR, BUT WE NOTE THAT SUCH TESTS ARE MORE RIGOROUS
THAN IS REQUIRED TO DISPOSE OF THE INSTANT CASE.  NEEDLESS TO SAY, THE
FACT THAT A MERGER RESULTS IN A LESS-THAN-30% MARKET SHARE, OR IN A
LESS SUBSTANTIAL INCREASE IN CONCENTRATION THAN IN THE INSTANT CASE,
DOES NOT RAISE AN INFERENCE THAT THE MERGER IS NOT VIOLATIVE OF SEC.
7.  SEE, E.G., BROWN SHOE CO., SUPRA. 

FN42  SEE NOTE 41, SUPRA.  IT IS NO ANSWER THAT, AMONG THE THREE
PRESENTLY LARGEST FIRMS (FIRST PENNSYLVANIA, PNB, AND GIRARD), THERE
WILL BE NO INCREASE IN CONCENTRATION.  IF THIS ARGUMENT WERE VALID,
THEN ONCE A MARKET HAD BECOME UNDULY CONCENTRATED, FURTHER
CONCENTRATION WOULD BE LEGALLY PRIVILEGED.  ON THE CONTRARY, IF
CONCENTRATION IS ALREADY GREAT, THE IMPORTANCE OF PREVENTING EVEN
SLIGHT INCREASES IN CONCENTRATION AND SO PRESERVING THE POSSIBILITY OF
EVENTUAL DECONCENTRATION IS CORRESPONDINGLY GREAT.  COMMENT, NOTE 39,
SUPRA, AT 1644. 

FN43  THE FACT THAT SOME OF THE BANK OFFICERS WHO TESTIFIED
REPRESENTED SMALL BANKS IN COMPETITION WITH APPELLEES DOES NOT
SUBSTANTIALLY ENHANCE THE PROBATIVE VALUE OF THEIR TESTIMONY.  THE TEST
OF A COMPETITIVE MARKET IS NOT ONLY WHETHER SMALL COMPETITORS FLOURISH
BUT ALSO WHETHER CONSUMERS ARE WELL SERVED.  SEE UNITED STATES V.
BETHLEHEM STEEL CORP., 168 F. SUPP. 576, 588, 592 (D.C.S.D.N.Y. 1958). 
"CONGRESSIONAL CONCERN (WAS) WITH THE PROTECTION OF COMPETITION, NOT
COMPETITORS."  BROWN SHOE CO., SUPRA, AT 320.  IN AN OLIGOPOLISTIC
MARKET, SMALL COMPANIES MAY BE PERFECTLY CONTENT TO FOLLOW THE HIGH
PRICES SET BY THE DOMINANT FIRMS, YET THE MARKET MAY BE PROFOUNDLY
ANTICOMPETITIVE. 

FN44  ENTRY IS, OF COURSE, WHOLLY A MATTER OF GOVERNMENTAL GRACE. 
SEE P. 328, SUPRA.  IN THE 10-YEAR PERIOD ENDING IN 1961, ONLY ONE NEW
BANK OPENED IN THE PHILADELPHIA FOUR-COUNTY AREA.  THAT WAS IN 1951. 
AT THE END OF 10 YEARS, THE NEW BANK CONTROLLED ONLY ONE-THIRD OF 1% OF
THE AREA'S DEPOSITS. 

FN45  THE FOLLOWING COLLOQUY IS REPRESENTATIVE: 

"Q.  MR. JENNINGS, WHAT IS THE NATURE OF COMPETITION AMONG COMMERCIAL
BANKS? 

"A.  KEEN, HIGHLY COMPETITIVE.  I THINK, FROM MY OWN OBSERVATION,
THAT I HAVE NEVER KNOWN COMPETITION AMONG BANKS TO BE KEENER THAN IT IS
TODAY  ...  . 

"Q.  IN WHAT AREA DOES COMPETITION EXIST  ...  ? 

"A.  I THINK THE STIFFEST, STERNEST COMPETITION OF ALL IS IN THE
FIELD TO OBTAIN DEMAND DEPOSITS AND LOANS  ...  . 

"Q.  WHAT FORM DOES THE COMPETITION TAKE? 

"A.  IT TAKES MANY FORMS.  IF WE ARE DEALING WITH THE DEPOSITS OF
LARGE CORPORATIONS, WEALTHY INDIVIDUALS, I WOULD SAY THAT MOST, IF NOT
ALL, OF THE MAJOR BANKS OF THE COUNTRY ARE COMPETING FOR SUCH
DEPOSITS.  THE SAME WOULD HOLD TRUE AS REGARDS LOANS TO THOSE
CORPORATIONS OR WEALTHY INDIVIDUALS. 

"IF WE GO INTO THE FIELD OF SMALLER LOANS, SMALLER DEPOSITS, THE
COMPETITION IS MORE REGIONAL - WIDE BUT NEVERTHELESS REGIONAL - AND
THERE THE LARGE BANKS AS WELL AS THE SMALL BANKS ARE AFTER THAT
BUSINESS WITH EVERYTHING THEY HAVE. 

     *         *         *         *        * 

"Q.  WHAT FORM DOES THE COMPETITION TAKE?  IS IT COMPETITION IN
PRICE? 

"A.  NO, I WOULDN'T SAY THAT IT IS COMPETITION AS TO PRICE.  AFTER
ALL, INTEREST RATES ARE REGULATED AT THE TOP LEVEL BY THE LAWS OF THE
50 STATES.  INTEREST RATES AT THE BOTTOM LEVEL HAVE NO LEGAL
LIMITATION, BUT FOR PRACTICAL PURPOSES THE PRIME RATE  ...  FURNISHES A
VERY EFFECTIVE FLOOR.  I WOULD SAY THAT THE AREA OF COMPETITION FOR
INTEREST RATES WOULD RANGE BETWEEN, LET US SAY, THE PRIME RATE OF 4 1/2
AND 6 PER CENT FOR NORMAL LOANS EXCLUSIVE OF CONSUMER LOANS, WHERE
HIGHER RATES ARE PERMITTED. 

     *         *         *     *         * 

"IN THE AREA OF SERVICE CHARGES, I WOULD SAY THAT BANKS ARE
COMPETITIVE IN THAT FIELD.  THEY BASE THEIR SERVICE CHARGES PRIMARILY
ON THEIR COSTS, BUT THEY HAVE TO MAINTAIN A WEATHER EYE TO WINDWARD AS
TO WHAT THE COMPETITORS ARE CHARGING IN THE SERVICE CHARGE FIELD.  THE
MINUTE THEY GET OUT OF LINE IN CONNECTION WITH SERVICE CHARGES THEY
FIND THEIR CUSTOMERS WILL START TO PROTEST, AND IF SOMETHING ISN'T DONE
SOME OF THE CUSTOMERS WILL LEAVE THEM FOR A DIFFERENTIAL IN SERVICE
CHARGES OF ANY SIGNIFICANCE. 

"I DO NOT BELIEVE THAT COMPETITION IS REALLY AFFECTED BY THE PRICE
AREA.  I THINK IT IS AFFECTED LARGELY BY THE QUALITY AND THE CALIBER OF
SERVICE THAT BANKS GIVE AND WHETHER OR NOT THEY FEEL THEY ARE BEING
RECEIVED IN THE RIGHT WAY, WHETHER THEY ARE WELCOME IN THE BANK. 
PERSONALITIES ENTER INTO IT VERY HEAVILY, BUT I DO NOT THINK PRICE AS
SUCH IS A MAJOR FACTOR IN BANKING COMPETITION.  IT IS THERE, IT IS A
FACTOR, BUT NOT MAJOR."  (R. 1940-1942.) 

IT SHOULD BE NOTED THAT BESIDES COMPETITION IN INTEREST RATES, THERE
IS A GREAT DEAL OF INDIRECT PRICE COMPETITION IN THE BANKING INDUSTRY. 
FOR EXAMPLE, THE AMOUNT OF COMPENSATING BALANCE A BANK REQUIRES OF A
BORROWER (I.E., THE AMOUNT THE BORROWER MUST ALWAYS RETAIN IN HIS
DEMAND DEPOSIT ACCOUNT WITH THE BANK) AFFECTS THE REAL COST OF THE
LOAN, AND VARIES CONSIDERABLY IN THE BANK'S DISCRETION. 

FN46  THUS, ARGUABLY, THE SO-CALLED FAILING-COMPANY DEFENSE, SEE
INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, 280 U.S. 291, 299-303,
MIGHT HAVE SOMEWHAT LARGER CONTOURS AS APPLIED TO BANK MERGERS BECAUSE
OF THE GREATER PUBLIC IMPACT OF A BANK FAILURE COMPARED WITH ORDINARY
BUSINESS FAILURES.  BUT THE QUESTION WHAT DEFENSES IN SEC. 7 ACTIONS
MUST BE ALLOWED IN ORDER TO AVERT UNSOUND BANKING CONDITIONS IS NOT
BEFORE US, AND WE INTIMATE NO VIEW UPON IT. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

I SUSPECT THAT NO ONE WILL BE MORE SURPRISED THAN THE GOVERNMENT TO
FIND THAT THE CLAYTON ACT HAS CARRIED THE DAY FOR ITS CASE IN THIS
COURT. 

IN RESPONSE TO AN APPARENTLY ACCELERATING TREND TOWARD CONCENTRATION
IN THE COMMERCIAL BANKING SYSTEM IN THIS COUNTRY, A TREND WHICH
EXISTING LAWS WERE EVIDENTLY ILL-SUITED TO CONTROL, NUMEROUS BILLS WERE
INTRODUCED IN CONGRESS FROM 1955 TO 1960.  (FN1)  DURING THIS PERIOD,
THE DEPARTMENT OF JUSTICE AND THE FEDERAL BANKING AGENCIES (FN2)
ADVOCATED DIVERGENT METHODS OF DEALING WITH THE COMPETITIVE ASPECTS OF
BANK MERGERS, THE FORMER URGING THE EXTENSION OF SEC. 7 OF THE CLAYTON
ACT TO COVER SUCH MERGERS AND THE LATTER SUPPORTING A REGULATORY SCHEME
UNDER WHICH THE EFFECT OF A BANK MERGER ON COMPETITION WOULD BE ONLY
ONE OF THE FACTORS TO BE CONSIDERED IN DETERMINING WHETHER THE MERGER
WOULD BE IN THE PUBLIC INTEREST.  THE JUSTICE DEPARTMENT'S PROPOSALS
WERE REPEATEDLY REJECTED BY CONGRESS, AND THE REGULATORY APPROACH OF
THE BANKING AGENCIES WAS ADOPTED IN THE BANK MERGER ACT OF 1960.  SEE
INFRA, PP. 379-383.    SWEEPING ASIDE THE "DESIGN FASHIONED IN THE BANK
MERGER ACT" AS "PREDICATED UPON UNCERTAINTY AS TO THE SCOPE OF SEC. 7"
OF THE CLAYTON ACT (ANTE, P. 349), THE COURT TODAY HOLDS SEC. 7 TO BE
APPLICABLE TO BANK MERGERS AND CONCLUDES THAT IT HAS BEEN VIOLATED IN
THIS CASE.  I RESPECTFULLY SUBMIT THAT THIS HOLDING, WHICH SANCTIONS A
REMEDY REGARDED BY CONGRESS AS INIMICAL TO THE BEST INTERESTS OF THE
BANKING INDUSTRY AND THE PUBLIC, AND WHICH WILL IN LARGE MEASURE SERVE
TO FRUSTRATE THE OBJECTIVES OF THE BANK MERGER ACT, FINDS NO
JUSTIFICATION IN EITHER THE TERMS OF THE 1950 AMENDMENT OF THE CLAYTON
ACT OR THE HISTORY OF THE STATUTE. 

                                  I. 

THE KEY TO THIS CASE IS FOUND IN THE SPECIAL POSITION OCCUPIED BY
COMMERCIAL BANKING IN THE ECONOMY OF THIS COUNTRY.  WITH RESPECT TO
BOTH THE NATURE OF THE OPERATIONS PERFORMED AND THE DEGREE OF
GOVERNMENTAL SUPERVISION INVOLVED, IT IS FUNDAMENTALLY DIFFERENT FROM
ORDINARY MANUFACTURING AND MERCANTILE BUSINESSES. 

THE UNIQUE POWERS OF COMMERCIAL BANKS TO ACCEPT DEMAND DEPOSITS,
PROVIDE CHECKING ACCOUNT SERVICES, AND LEND AGAINST FRACTIONAL RESERVES
PERMIT THE BANKING SYSTEM AS A WHOLE TO CREATE A SUPPLY OF "MONEY," A
FUNCTION WHICH IS INDISPENSABLE TO THE MAINTENANCE OF THE STRUCTURE OF
OUR NATIONAL ECONOMY.  AND THE AMOUNT OF THE FUNDS HELD BY COMMERCIAL
BANKS IS VERY LARGE INDEED; DEMAND DEPOSITS ALONE REPRESENT
APPROXIMATELY THREE-FOURTHS OF THE MONEY SUPPLY IN THE UNITED STATES. 
(FN3)  SINCE A BANK'S ASSETS MUST BE SUFFICIENTLY LIQUID TO ACCOMMODATE
DEMAND WITHDRAWALS, SHORT-TERM COMMERCIAL AND INDUSTRIAL LOANS ARE THE
MAJOR ELEMENT IN BANK PORTFOLIOS, THUS MAKING COMMERCIAL BANKS THE
PRINCIPAL SOURCE OF SHORT-TERM BUSINESS CREDIT.  MANY OTHER SERVICES
ARE ALSO PROVIDED BY BANKS, BUT IN THESE MORE OR LESS COLLATERAL AREAS
THEY RECEIVE MORE ACTIVE COMPETITION FROM OTHER FINANCIAL
INSTITUTIONS.  (FN4) 

DEPOSIT BANKING OPERATIONS AFFECT NOT ONLY THE VOLUME OF MONEY AND
CREDIT, BUT ALSO THE VALUE OF THE DOLLAR AND THE STABILITY OF THE
CURRENCY SYSTEM.  IN THIS FIELD, CONSIDERATIONS OTHER THAN SIMPLY THE
PRESERVATION OF COMPETITION ARE RELEVANT.  MOREOVER, COMMERCIAL BANKS
ARE ENTRUSTED WITH THE SAFEKEEPING OF LARGE AMOUNTS OF FUNDS BELONGING
TO INDIVIDUALS AND CORPORATIONS.  UNLIKE THE ORDINARY INVESTOR, THESE
DEPOSITORS DO NOT REGARD THEIR FUNDS AS SUBJECT TO A RISK OF LOSS AND,
AT LEAST IN THE CASE OF DEMAND DEPOSITORS, THEY DO NOT RECEIVE A RETURN
FOR TAKING SUCH A RISK.  A BANK FAILURE IS A COMMUNITY DISASTER; ITS
IMPACT FIRST STRIKES THE BANK'S DEPOSITORS MOST HEAVILY, AND THEN
SPREADS THROUGHOUT THE ECONOMIC LIFE OF THE COMMUNITY.  (FN5)  SAFETY
AND SOUNDNESS OF BANKING PRACTICES ARE THUS CRITICAL FACTORS IN ANY
BANKING SYSTEM. 

THE EXTENSIVE BLANKET OF STATE AND FEDERAL REGULATION OF COMMERCIAL
BANKING, MUCH OF WHICH IS AIMED AT LIMITING COMPETITION, REFLECTS THESE
FACTORS.  SINCE THE COURT'S OPINION DESCRIBES, AT SOME LENGTH, ASPECTS
OF THE SUPERVISION EXERCISED BY THE FEDERAL BANKING AGENCIES (ANTE, PP.
327-330), I DO NO MORE HERE THAN POINT OUT THAT, IN MY OPINION, SUCH
REGULATION EVIDENCES A PLAIN DESIGN GROUNDED ON SOLID ECONOMIC
CONSIDERATIONS TO DEAL WITH BANKING AS A SPECIALIZED FIELD. 

THIS VIEW IS CONFIRMED BY THE BANK MERGER ACT OF 1960 AND ITS
HISTORY. 

FEDERAL LEGISLATION DEALING WITH BANK MERGERS (FN6) DATES FROM 1918,
WHEN CONGRESS PROVIDED THAT, SUBJECT TO THE APPROVAL OF THE COMPTROLLER
OF THE CURRENCY, TWO OR MORE NATIONAL BANKS COULD CONSOLIDATE TO FORM A
NEW NATIONAL BANK; (FN7) SIMILAR PROVISION WAS MADE IN 1927 FOR THE
CONSOLIDATION OF A STATE AND A NATIONAL BANK RESULTING IN A NATIONAL
BANK.  (FN8)  IN 1952 MERGERS OF NATIONAL AND STATE BANKS INTO NATIONAL
BANKS WERE AUTHORIZED, ALSO CONDITIONED ON APPROVAL BY THE COMPTROLLER
OF THE CURRENCY.  (FN9)  IN 1950 CONGRESS AUTHORIZED THE THERETOFORE
PROHIBITED (FN10) MERGER OR CONSOLIDATION OF A NATIONAL BANK WITH A
STATE BANK WHEN THE ASSUMING OR RESULTING BANK WOULD BE A STATE BANK. 
(FN11)  IN ADDITION, THE FEDERAL DEPOSIT INSURANCE ACT WAS AMENDED TO
REQUIRE THE APPROVAL OF THE FDIC FOR ALL MERGERS AND CONSOLIDATIONS
BETWEEN INSURED AND NONINSURED BANKS, AND OF SPECIFIED FEDERAL BANKING
AGENCIES FOR CONVERSIONS OF INSURED BANKS INTO INSURED STATE BANKS IF
THE CONVERSION WOULD RESULT IN THE CAPITAL STOCK OR SURPLUS OF THE
NEWLY FORMED BANK BEING LESS THAN THAT OF THE CONVERTING BANK.  (FN12)
THE ACT FURTHER REQUIRED INSURED BANKS MERGING WITH INSURED STATE BANKS
TO SECURE THE APPROVAL OF THE COMPTROLLER OF THE CURRENCY IF THE
ASSUMING BANK WOULD BE A NATIONAL BANK, AND THE APPROVAL OF THE BOARD
OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM AND THE FDIC, RESPECTIVELY,
IF THE ASSUMING OR RESULTING BANK WOULD BE A STATE MEMBER BANK OR
NONMEMBER INSURED BANK.  (FN13) 

NONE OF THIS LEGISLATION PRESCRIBED STANDARDS BY WHICH THE
APPROPRIATE FEDERAL BANKING AGENCIES WERE TO BE GUIDED IN DETERMINING
THE SIGNIFICANCE TO BE ATTRIBUTED TO THE ANTICOMPETITIVE EFFECTS OF A
PROPOSED MERGER.  AS PREVIOUSLY NOTED (SUPRA, P. 373), CONGRESS BECAME
INCREASINGLY CONCERNED WITH THIS PROBLEM IN THE 1950'S.  THE ANTITRUST
LAWS APPARENTLY PROVIDED NO SOLUTION; IN ONLY ONE CASE PRIOR TO 1960,
UNITED STATES V. FIRSTAMERICA CORP., CIVIL NO. 38139, N.D. CAL., MARCH
30, 1959, SETTLED BY CONSENT DECREE, HAD EITHER THE SHERMAN OR CLAYTON
ACT BEEN INVOKED TO ATTACK A COMMERCIAL BANK MERGER. 

INDEED THE INAPPLICABILITY TO BANK MERGERS OF SEC. 7 OF THE CLAYTON
ACT, EVEN AFTER IT WAS AMENDED IN 1950, WAS, FOR A TIME, AN EXPLICIT
PREMISE ON WHICH THE DEPARTMENT OF JUSTICE PERFORMED ITS ANTITRUST
DUTIES.  IN PASSING UPON AN APPLICATION FOR INFORMAL CLEARANCE OF A
BANK MERGER IN 1955, THE DEPARTMENT STATED: 

"AFTER A COMPLETE CONSIDERATION OF THIS MATTER, WE HAVE CONCLUDED
THAT THIS DEPARTMENT WOULD NOT HAVE JURISDICTION TO PROCEED UNDER
PRESENTLY PLAN TO TAKE ANY ACTION ON THIS MATTER."  HEARINGS BEFORE THE
ANTITRUST SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY, 84TH
CONG., 1ST SESS., SER.  3, PT. 3, P. 2141 (1955). 

AND IN TESTIFYING BEFORE THE SENATE COMMITTEE ON BANKING AND CURRENCY
IN 1957 ATTORNEY GENERAL BROWNELL, SPEAKING OF BANK MERGERS, NOTED: 

"ON THE BASIS OF THESE PROVISIONS THE DEPARTMENT OF JUSTICE HAS
CONCLUDED, AND ALL APPARENTLY AGREE, THAT ASSET ACQUISITIONS BY BANKS
ARE NOT COVERED BY SECTION 7 (OF THE CLAYTON ACT) AS AMENDED IN 1950." 
HEARINGS ON THE FINANCIAL INSTITUTIONS ACT OF 1957 BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON BANKING AND CURRENCY, 85TH
CONG., 1ST SESS., PT. 2, P. 1030 (1957). 

SIMILAR STATEMENTS WERE REPEATEDLY MADE TO CONGRESS BY JUSTICE
DEPARTMENT REPRESENTATIVES IN THE YEARS PRIOR TO THE ENACTMENT OF THE
BANK MERGER ACT.  (FN14) 

THE INAPPLICABILITY OF SEC. 7 TO BANK MERGERS WAS ALSO AN EXPLICIT
BASIS ON WHICH CONGRESS ACTED IN PASSING THE BANK MERGER ACT OF 1960. 
THE SENATE REPORT ON S. 1062, THE BILL THAT WAS FINALLY ENACTED,
STATED: 

"SINCE BANK MERGERS ARE CUSTOMARILY, IF NOT INVARIABLY, CARRIED OUT
BY ASSET ACQUISITIONS, THEY ARE EXEMPT FROM SECTION 7 OF THE CLAYTON
ACT.  (STOCK ACQUISITIONS BY BANK HOLDING COMPANIES, AS DISTINGUISHED
FROM MERGERS AND CONSOLIDATIONS, ARE SUBJECT TO BOTH THE BANK HOLDING
COMPANY ACT OF 1956 AND SEC. 7 OF THE CLAYTON ACT.)"  S. REP. NO. 196,
86TH CONG., 1ST SESS. 1-2 (1959). 

"IN 1950 (64 STAT. 1125) SECTION 7 OF THE CLAYTON ACT WAS AMENDED TO
CORRECT THESE DEFICIENCIES.  ACQUISITIONS OF ASSETS WERE INCLUDED
WITHIN THE SECTION, IN ADDITION TO STOCK ACQUISITIONS, BUT ONLY IN THE
CASE OF CORPORATIONS SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION (BANKS, BEING SUBJECT TO THE JURISDICTION OF THE FEDERAL
RESERVE BOARD FOR PURPOSES OF THE CLAYTON ACT BY VIRTUE OF SECTION 11
OF THAT ACT, WERE NOT AFFECTED)."  ID., AT 5.  (FN15) 

DURING THE FLOOR DEBATES REPRESENTATIVE SPENCE, THE CHAIRMAN OF THE
HOUSE COMMITTEE ON BANKING AND CURRENCY, RECOGNIZED THE SAME
DIFFICULTY:  "THE CLAYTON ACT IS INEFFECTIVE AS TO BANK MERGERS BECAUSE
IN THE CASE OF BANKS IT COVERS ONLY STOCK ACQUISITIONS AND BANK MERGERS
ARE NOT ACCOMPLISHED THAT WAY."  106 CONG. REC. 7257 (1960).  (FN16) 

BUT INSTEAD OF EXTENDING THE SCOPE OF SEC. 7 TO COVER BANK MERGERS,
AS NUMEROUS PROPOSED AMENDMENTS TO THAT SECTION WERE DESIGNED TO
ACCOMPLISH, (FN17) CONGRESS MADE THE DELIBERATE POLICY JUDGMENT THAT
"IT IS IMPOSSIBLE TO SUBJECT BANK MERGERS TO THE SIMPLE RULE OF SECTION
7 OF THE CLAYTON ACT.  UNDER THAT ACT, A MERGER WOULD BE BARRED IF IT
MIGHT TEND SUBSTANTIALLY TO LESSEN COMPETITION, REGARDLESS OF THE
EFFECTS ON THE PUBLIC INTEREST."  105 CONG. REC. 8076 (1959)(REMARKS OF
SENATOR ROBERTSON, A SPONSOR OF S. 1062).  BECAUSE OF THE PECULIAR
NATURE OF THE COMMERCIAL BANKING INDUSTRY, ITS CRUCIAL ROLE IN THE
ECONOMY, AND ITS INTIMATE CONNECTION WITH THE FISCAL AND MONETARY
OPERATIONS OF THE GOVERNMENT, CONGRESS REJECTED THE NOTION THAT THE
GENERAL ECONOMIC AND BUSINESS PREMISES OF THE CLAYTON ACT SHOULD BE THE
ONLY CONSIDERATIONS APPLICABLE TO THIS FIELD.  UNRESTRICTED BANK
COMPETITION WAS THOUGHT TO HAVE BEEN A MAJOR CAUSE OF THE PANIC OF 1907
AND OF THE BANK FAILURES OF THE 1930'S, (FN18) AND WAS REGARDED AS A
HIGHLY UNDESIRABLE CONDITION TO IMPOSE ON BANKS IN THE FUTURE: 

"BANKING IS TOO IMPORTANT TO DEPOSITORS, TO BORROWERS, TO THE
GOVERNMENT, AND THE PUBLIC GENERALLY, TO PERMIT UNREGULATED AND
UNRESTRICTED COMPETITION IN THAT FIELD. 

"THE ANTITRUST LAWS HAVE REFLECTED AN AWARENESS OF THE DIFFERENCE
BETWEEN BANKING AND OTHER REGULATED INDUSTRIES ON THE ONE HAND, AND
ORDINARY UNREGULATED INDUSTRIES AND COMMERCIAL ENTERPRISES ON THE OTHER
HAND."  106 CONG. REC. 9711 (1960)(REMARKS OF SENATOR FULBRIGHT, A
SPONSOR OF S. 1062). 

"IT IS THIS DISTINCTION BETWEEN BANKING AND OTHER BUSINESSES WHICH
JUSTIFIES DIFFERENT TREATMENT FOR BANK MERGERS AND OTHER MERGERS.  IT
WAS THIS DISTINCTION THAT LED THE SENATE TO REJECT THE FLAT PROHIBITION
OF THE CLAYTON ACT TEST WHICH APPLIES TO OTHER MERGERS."  ID., AT
9712.  (FN19) 

THUS THE COMMITTEE ON BANKING AND CURRENCY RECOMMENDED "CONTINUANCE
OF THE EXISTING EXEMPTION FROM SECTION 7 OF THE CLAYTON ACT."  105
CONG. REC. 8076 (1959).  CONGRESS ACCEPTED THIS RECOMMENDATION; IT
DECIDED TO HANDLE THE PROBLEM OF CONCENTRATION IN COMMERCIAL BANKING
"THROUGH BANKING LAWS, SPECIALLY FRAMED TO FIT THE PARTICULAR NEEDS OF
THE FIELD  ...  ."  S. REP. NO. 196, 86TH CONG., 1ST SESS. 18 (1959). 
AS FINALLY ENACTED IN 1960, THE BANK MERGER ACT EMBODIES THE REGULATORY
APPROACH ADVOCATED BY THE BANKING AGENCIES, VESTING IN THEM
RESPONSIBILITY FOR ITS ADMINISTRATION AND PLACING THE SCHEME WITHIN THE
FRAMEWORK OF EXISTING BANKING LAWS AS AN AMENDMENT TO SEC. 18(C) OF THE
FEDERAL DEPOSIT INSURANCE ACT, 12 U.S.C. (SUPP. IV, 1963), SEC.
1828(C).  (FN20)  IT MAINTAINS THE LATTER ACT'S REQUIREMENT OF ADVANCE
APPROVAL BY THE APPROPRIATE FEDERAL AGENCY FOR MERGERS BETWEEN INSURED
BANKS AND BETWEEN INSURED AND NONINSURED BANKS (SUPRA, PP. 375-377),
BUT ESTABLISHES THAT SUCH APPROVAL IS NECESSARY IN EVERY MERGER OF THIS
TYPE.  TO AID THE RESPECTIVE AGENCIES IN DETERMINING WHETHER TO APPROVE
A MERGER, AND IN "THE INTERESTS OF UNIFORM STANDARDS" (12 U.S.C. (SUPP.
IV, 1963) SEC. 1828(C)), THE ACT REQUIRES THE TWO AGENCIES NOT MAKING
THE PARTICULAR DECISION AND THE ATTORNEY GENERAL TO SUBMIT TO THE
IMMEDIATELY RESPONSIBLE AGENCY REPORTS ON THE COMPETITIVE FACTORS
INVOLVED.  IT FURTHER PROVIDES THAT IN ADDITION TO CONSIDERING THE
BANKING FACTORS EXAMINED BY THE FDIC IN CONNECTION WITH APPLICATIONS TO
BECOME AN INSURED BANK, WHICH FOCUS PRIMARILY ON MATTERS OF SAFETY AND
SOUNDNESS, (FN21) THE APPROVING AGENCY "SHALL ALSO TAKE INTO
CONSIDERATION THE EFFECT OF THE TRANSACTION ON COMPETITION (INCLUDING
ANY TENDENCY TOWARD MONOPOLY), AND SHALL NOT APPROVE THE TRANSACTION
UNLESS, AFTER CONSIDERING ALL OF SUCH FACTORS, IT FINDS THE TRANSACTION
TO BE IN THE PUBLIC INTEREST."  12 U.S.C. (SUPP. IV, 1963) SEC.
1828(C). 

THE CONGRESSIONAL PURPOSE CLEARLY EMERGES FROM THE TERMS OF THE
STATUTE AND FROM THE COMMITTEE REPORTS, HEARINGS, AND FLOOR DEBATES ON
THE BILLS.  TIME AND AGAIN IT WAS REPEATED THAT EFFECT ON COMPETITION
WAS NOT TO BE THE CONTROLLING FACTOR IN DETERMINING WHETHER TO APPROVE
A BANK MERGER, THAT A MERGER COULD BE APPROVED AS BEING IN THE PUBLIC
INTEREST EVEN THOUGH IT WOULD CAUSE A SUBSTANTIAL LESSENING OF
COMPETITION.  THE FOLLOWING STATEMENT IS TYPICAL: 

"THE COMMITTEE WANTS TO MAKE CRYSTAL CLEAR ITS INTENTION THAT THE
VARIOUS BANKING FACTORS IN ANY PARTICULAR CASE MAY BE HELD TO OUTWEIGH
THE COMPETITIVE FACTORS, AND THAT THE COMPETITIVE FACTORS, HOWEVER
FAVORABLE OR UNFAVORABLE, ARE NOT, IN AND OF THEMSELVES, CONTROLLING ON
THE DECISION.  AND, OF COURSE, THE BANKING AGENCIES ARE NOT BOUND IN
THEIR CONSIDERATION OF THE COMPETITIVE FACTORS BY THE REPORT OF THE
ATTORNEY GENERAL."  S. REP. NO. 196, 86TH CONG., 1ST SESS. 24 (1959);
ID., AT 19, 21.  (FN22)    THE FOREGOING STATEMENT ALSO SHOWS THAT IT
WAS THE CONGRESSIONAL INTENTION TO PLACE THE RESPONSIBILITY FOR
APPROVAL SQUARELY ON THE BANKING AGENCIES; THE REPORT OF THE ATTORNEY
GENERAL ON THE COMPETITIVE ASPECTS OF A MERGER WAS TO BE ADVISORY
ONLY.  (FN23)  AND THERE WAS DELIBERATELY OMITTED ANY ATTEMPT TO
SPECIFY OR RESTRICT THE KINDS OF CIRCUMSTANCES IN WHICH THE AGENCIES
MIGHT PROPERLY DETERMINE THAT A PROPOSED MERGER WOULD BE IN THE PUBLIC
INTEREST NOTWITHSTANDING ITS ADVERSE EFFECT ON COMPETITION.  (FN24) 

WHAT CONGRESS HAS CHOSEN TO DO ABOUT MERGERS AND THEIR EFFECT ON
COMPETITION IN THE HIGHLY SPECIALIZED FIELD OF COMMERCIAL BANKING COULD
NOT BE MORE "CRYSTAL CLEAR."  (SUPRA, P. 382.)  BUT IN THE FACE OF
OVERWHELMING EVIDENCE TO THE CONTRARY, THE COURT, WITH PERFECT
EQUANIMITY, FINDS "UNCERTAINTY" IN THE FOUNDATIONS OF THE BANK MERGER
ACT (ANTE, P. 349) AND ON THIS PREMISE PUTS IT ASIDE AS IRRELEVANT TO
THE TASK OF CONSTRUING THE SCOPE OF SEC. 7 OF THE CLAYTON ACT. 

I AM UNABLE TO CONCEIVE OF A MORE INAPPROPRIATE CASE IN WHICH TO
OVERTURN THE CONSIDERED OPINION OF ALL CONCERNED AS TO THE REACH OF
PRIOR LEGISLATION.  (FN25)  FOR 10 YEARS EVERYONE - THE DEPARTMENT
RESPONSIBLE FOR ANTITRUST LAW ENFORCEMENT, THE BANKING INDUSTRY, THE
CONGRESS, AND THE BAR - PROCEEDED ON THE ASSUMPTION THAT THE 1950
AMENDMENT OF THE CLAYTON ACT DID NOT AFFECT BANK MERGERS.  THIS
ASSUMPTION PROVIDED A MAJOR IMPETUS TO THE ENACTMENT OF REMEDIAL
LEGISLATION, AND CONGRESS, WHEN IT FINALLY SETTLED ON WHAT IT THOUGHT
WAS THE SOLUTION TO THE PROBLEM AT HAND, EMPHATICALLY REJECTED THE
REMEDY NOW BROUGHT TO LIFE BY THE COURT. 

THE RESULT IS, OF COURSE, THAT THE BANK MERGER ACT IS ALMOST
COMPLETELY NULLIFIED; ITS ENACTMENT TURNS OUT TO HAVE BEEN AN
EXORBITANT WASTE OF CONGRESSIONAL TIME AND ENERGY.  AS THE PRESENT CASE
ILLUSTRATES, THE ATTORNEY GENERAL'S REPORT TO THE DESIGNATED BANKING
AGENCY IS NO LONGER TRULY ADVISORY, FOR IF THE AGENCY'S DECISION IS NOT
SATISFACTORY A SEC. 7 SUIT MAY BE COMMENCED IMMEDIATELY.  (FN26)  THE
BANK MERGER'S LEGALITY WILL THEN BE JUDGED SOLELY FROM ITS COMPETITIVE
ASPECTS, UNENCUMBERED BY ANY CONSIDERATIONS PECULIAR TO BANKING. 
(FN27)  AND IF SUCH A SUIT WERE DEEMED TO LIE AFTER A BANK MERGER HAS
BEEN CONSUMMATED, THERE WOULD THEN BE INTRODUCED INTO THIS FIELD, FOR
THE FIRST TIME TO ANY SIGNIFICANT EXTENT, THE THREAT OF DIVESTITURE OF
ASSETS AND ALL THE COMPLEXITIES AND DISRUPTION ATTENDANT UPON THE USE
OF THAT SANCTION.  (FN28)  THE ONLY VESTIGE OF THE BANK MERGER ACT
WHICH REMAINS IS THAT THE BANKING AGENCIES WILL HAVE AN INITIAL VETO. 
(FN29) 

THIS FRUSTRATION OF A MANIFEST CONGRESSIONAL DESIGN IS, IN MY VIEW, A
MOST UNWARRANTED INTRUSION UPON THE LEGISLATIVE DOMAIN.  I SUBMIT THAT
WHATEVER MAY HAVE BEEN THE CONGRESSIONAL PURPOSE IN 1950, CONGRESS HAS
NOW SO PLAINLY PRONOUNCED ITS CURRENT JUDGMENT THAT BANK MERGERS ARE
NOT WITHIN THE REACH OF SEC. 7 THAT THIS COURT IS DUTY BOUND TO
EFFECTUATE ITS CHOICE. 

BUT I NEED NOT REST ON THIS PROPOSITION, FOR, AS WILL NOW BE SHOWN,
THERE IS NOTHING IN THE 1950 AMENDMENT TO SEC. 7 OR ITS LEGISLATIVE
HISTORY TO SUPPORT THE CONCLUSION THAT CONGRESS EVEN THEN INTENDED TO
SUBJECT BANK MERGERS TO THIS PROVISION OF THE CLAYTON ACT. 

                 II. 

PRIOR TO 1950, SEC. 7 OF THE CLAYTON ACT READ, IN PERTINENT PART, AS
FOLLOWS: 

"THAT NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE THE EFFECT OF
SUCH ACQUISITION MAY BE TO SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE
CORPORATION WHOSE STOCK IS SO ACQUIRED AND THE CORPORATION MAKING THE
ACQUISITION, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY,
OR TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE." 

IN 1950 THIS SECTION WAS AMENDED TO READ: 

"THAT NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 

IF CONGRESS DID INTEND THE 1950 AMENDMENT TO REACH BANK MERGERS, IT
CERTAINLY WENT AT THE MATTER IN A VERY PECULIAR WAY.  WHILE PROHIBITING
ASSET ACQUISITIONS HAVING THE ANTICOMPETITIVE EFFECTS DESCRIBED IN SEC.
7, IT LIMITED THE APPLICABILITY OF THAT PROVISION TO CORPORATIONS
SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE COMMISSION, WHICH DOES
NOT INCLUDE BANKS.  AND IT REENACTED THE STOCK-ACQUISITION PROVISION IN
THE VERY SAME LANGUAGE WHICH - AS IT WAS FULLY AWARE - HAD BEEN
INTERPRETED NOT TO REACH THE TYPE OF MERGER CUSTOMARILY USED IN THE
BANKING INDUSTRY.  SEE INFRA, PP. 389-393.  IN THE PAST THIS COURT HAS
DRAWN THE NORMAL INFERENCE THAT SUCH A REENACTMENT INDICATES
CONGRESSIONAL ADOPTION OF THE PRIOR JUDICIAL STATUTORY CONSTRUCTION. 
E.G., UNITED STATES V. DIXON, 347 U.S. 381; OVERSTREET V. NORTH SHORE
CORP., 318 U.S. 125, 131-132. 

IN THIS INSTANCE, HOWEVER, THE COURT HOLDS THAT THE STOCK-ACQUISITION
PROVISION UNDERWENT AN EXPANSIVE METAMORPHOSIS, SO THAT IT NOW EMBRACES
ALL MERGERS OR CONSOLIDATIONS INVOLVING AN EXCHANGE OF STOCK.  SINCE
BANK MERGERS USUALLY, IF NOT ALWAYS, DO INVOLVE EXCHANGES OF STOCK, THE
EFFECT OF THIS CONSTRUCTION IS TO ROB THE FEDERAL TRADE COMMISSION
PROVISION RELATING TO ASSET ACQUISITIONS OF ALL FORCE AS A SUBSTANTIVE
LIMITATION UPON THE SCOPE OF SEC. 7; ACCORDING TO THE COURT THE PURPOSE
OF THAT PROVISION WAS MERELY TO ENSURE THE COMMISSION'S ROLE IN THE
ENFORCEMENT OF SEC. 7.  ANTE, PP. 346-348.  IN SHORT, UNDER THIS
REASONING BANK MERGERS TO ALL INTENTS AND PURPOSES ARE FULLY WITHIN THE
REACH OF SEC. 7. 

A MORE CIRCUMSPECT LOOK AT THE 1950 AMENDMENT OF SEC. 7 AND ITS
BACKGROUND WILL SHOW THAT THIS CONSTRUCTION IS NOT TENABLE. 

THE LANGUAGE OF THE STOCK-ACQUISITION PROVISION ITSELF IS HARDLY
CONGENIAL TO THE COURT'S INTERPRETATION.  THE PNB-GIRARD MERGER IS
TECHNICALLY A CONSOLIDATION, GOVERNED BY SEC. 20 OF THE NATIONAL
BANKING LAWS, 12 U.S.C. (SUPP. IV, 1963) SEC. 215.  UNDER THAT SECTION,
THE CORPORATE EXISTENCE OF BOTH PNB AND GIRARD, ALL OF THEIR RIGHTS,
FRANCHISES, ASSETS, AND LIABILITIES, WOULD BE AUTOMATICALLY VESTED IN
THE RESULTING BANK, WHICH WOULD OPERATE UNDER THE PNB CHARTER.  PNB
ITSELF WOULD ACQUIRE NOTHING.  RATHER, THE TWO BANKS WOULD BE CREATING
A NEW ENTITY BY THE AMALGAMATION OF THEIR PROPERTIES, AND THE
SUBSEQUENT CONVERSION OF GIRARD STOCK (WHICH WOULD THEN REPRESENT
OWNERSHIP IN A NONFUNCTIONING ENTITY) INTO STOCK OF THE RESULTING BANK
WOULD SIMPLY BE PART OF THE MECHANICS BY WHICH OWNERSHIP IN THE NEW
ENTITY WOULD BE REFLECTED.  CLEARLY THIS IS NOT A CASE OF A CORPORATION
ACQUIRING THE STOCK OF ANOTHER FUNCTIONING CORPORATION, WHICH IS THE
ONLY SITUATION WHERE "THE EFFECT OF  ...  A STOCK ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION." 

THERE ARE FURTHER CRUCIAL DIFFERENCES BETWEEN A MERGER AND A STOCK
ACQUISITION.  A MERGER NORMALLY REQUIRES PUBLIC NOTICE AND THE APPROVAL
OF THE HOLDERS OF TWO-THIRDS OF THE OUTSTANDING SHARES OF EACH
CORPORATION, AND DISSENTING SHAREHOLDERS HAVE THE RIGHT TO RECEIVE IN
CASH THE APPRAISED VALUE OF THEIR SHARES.  (FN30) A PURCHASE OF STOCK
MAY BE DONE PRIVATELY, AND THE ONLY APPROVAL INVOLVED IS THAT OF THE
INDIVIDUAL PARTIES TO THE TRANSACTION.  UNLIKE A MERGED COMPANY, A
CORPORATION WHOSE STOCK IS ACQUIRED USUALLY REMAINS IN BUSINESS AS A
SUBSIDIARY OF THE ACQUIRING CORPORATION.  (FN31) 

THE GOVERNMENT, HOWEVER, CONTENDS THAT A MERGER MORE CLOSELY
RESEMBLES A STOCK ACQUISITION THAN AN ASSET ACQUISITION BECAUSE OF ONE
SIMILARITY OF CENTRAL IMPORTANCE:  THE ACQUISITION BY ONE CORPORATION
OF AN IMMEDIATE VOICE IN THE MANAGEMENT OF THE BUSINESS OF ANOTHER
CORPORATION.  BUT THIS IS OBVIOUSLY TRUE A FORTIORI OF ASSET
ACQUISITIONS OF SUFFICIENT MAGNITUDE TO FALL WITHIN THE PROHIBITION OF
SEC. 7; IF A CORPORATION BUYS THE PLANTS, EQUIPMENT, INVENTORY, ETC.,
OF ANOTHER CORPORATION, IT ACQUIRES ABSOLUTE CONTROL OVER, NOT MERELY A
VOICE IN THE MANAGEMENT OF, ANOTHER BUSINESS. 

THE LEGISLATIVE HISTORY OF THE 1950 AMENDMENT ALSO UNQUESTIONABLY
NEGATES ANY INFERENCE THAT CONGRESS INTENDED TO REACH BANK MERGERS.  IT
IS TRUE THAT THE PURPOSE WAS "TO PLUG A LOOPHOLE" IN SEC. 7 (95 CONG.
REC. 11485 (1949)(REMARKS OF REPRESENTATIVE CELLER)).  BUT SIMPLY TO
STATE THIS BROAD PROPOSITION DOES NOT ANSWER THE PRECISE QUESTIONS
PRESENTED HERE:  WHAT WAS THE NATURE OF THE LOOPHOLE SOUGHT TO BE
CLOSED; WHAT WERE THE MEANS CHOSEN TO CLOSE IT? 

THE ANSWER TO THE LATTER QUESTION IS UNMISTAKABLY INDICATED BY THE
RELATIONSHIP BETWEEN THE 1950 AMENDMENT AND PREVIOUS JUDICIAL
DECISIONS.  IN ARROW-HART & HEGEMAN ELEC.  CO. V. FEDERAL TRADE COMM'N,
291 U.S. 587, THIS COURT, BY A DIVIDED VOTE, RULED ON THE SCOPE OF THE
FEDERAL TRADE COMMISSION'S REMEDIAL POWERS UNDER THE ORIGINAL CLAYTON
ACT.  AFTER THE COMMISSION HAD ISSUED A SEC. 7 COMPLAINT AGAINST A
HOLDING COMPANY WHICH HAD BEEN FORMED BY THE STOCKHOLDERS OF TWO
MANUFACTURING CORPORATIONS, STEPS WERE TAKEN TO AVOID THE COMMISSION'S
JURISDICTION.  TWO NEW HOLDING COMPANIES WERE FORMED, EACH ACQUIRED ALL
THE COMMON STOCK OF ONE OF THE MANUFACTURING COMPANIES, AND EACH ISSUED
ITS STOCK DIRECTLY TO THE STOCKHOLDERS OF THE ORIGINAL HOLDING
COMPANY.  THIS COMPANY THEN DISSOLVED AND THE TWO NEW HOLDING COMPANIES
AND THEIR RESPECTIVE MANUFACTURING SUBSIDIARIES MERGED INTO ONE
CORPORATION.  THIS COURT HELD THAT THE COMMISSION HAD NO AUTHORITY,
AFTER THE MERGER, TO ORDER THE RESULTING CORPORATION TO DIVEST ITSELF
OF ASSETS.  AN ESSENTIAL PART OF THIS HOLDING WAS THAT THE MERGER IN
QUESTION, WHICH WAS TECHNICALLY A CONSOLIDATION SIMILAR TO THAT HERE
PLANNED BY PNB AND GIRARD, WAS NOT A STOCK ACQUISITION WITHIN THE
PROHIBITIONS OF SEC. 7:  "IF THE MERGER OF THE TWO MANUFACTURING
CORPORATIONS AND THE COMBINATION OF THEIR ASSETS WAS IN ANY RESPECT A
VIOLATION OF ANY ANTITRUST LAW, AS TO WHICH WE EXPRESS NO OPINION, IT
WAS NECESSARILY A VIOLATION OF STATUTORY PROHIBITIONS OTHER THAN THOSE
FOUND IN THE CLAYTON ACT."  291 U.S., AT 599; SEE ID., AT 595.  (FN32) 

THIS DECISION, ALONG WITH TWO OTHERS EARLIER HANDED DOWN BY THIS
COURT (THATCHER MFG. CO. V. FEDERAL TRADE COMM'N AND SWIFT & CO. V.
FEDERAL TRADE COMM'N, DECIDED TOGETHER WITH FEDERAL TRADE COMM'N V.
WESTERN MEAT CO., 272 U.S. 554), PERHAPS PROVIDED MORE OF A SPUR TO
ENACTMENT OF THE "ASSETS" AMENDMENT TO SEC. 7 THAN ANY OTHER SINGLE
FACTOR.  THESE DECISIONS WERE UNIVERSALLY REGARDED AS OPENING THE
UNFORTUNATE LOOPHOLE WHEREBY SEC. 7 COULD BE EVADED THROUGH THE USE OF
AN ASSET ACQUISITION.  REPRESENTATIVE CELLER EXPRESSED THE VIEW OF
CONGRESS IN THIS FASHION: 

"THE RESULT OF THESE DECISIONS HAS SO WEAKENED SECTIONS 7 AND 11  ...
AS TO GIVE TO THE FEDERAL TRADE COMMISSION AND THE DEPARTMENT OF
JUSTICE MERELY A PAPER SWORD TO PREVENT IMPROPER MERGERS."  95 CONG.
REC. 11485 (1949).  (FN33) 

SINCE THIS COURT'S DECISIONS WERE CAST IN TERMS OF THE SCOPE OF THE
FEDERAL TRADE COMMISSION'S JURISDICTION, CONGRESS, IN AMENDING SEC. 7
SO AS TO CLOSE THAT GAP, EMPHASIZED ITS EXPECTATION - MADE PLAIN IN THE
COMMITTEE REPORTS, HEARINGS, AND DEBATES - THAT THE COMMISSION WOULD
ASSUME THE PRINCIPAL ROLE IN ENFORCING THE SECTION.  (FN34)  IMPLICIT
HERE IS THAT NO CHANGE IN THE ENFORCEMENT POWERS OF THE OTHER AGENCIES
NAMED IN SEC. 11 WAS CONTEMPLATED.  (FN35)  OF MORE IMPORTANCE, THE
LEGISLATIVE HISTORY DEMONSTRATES THAT IT WAS THE ASSET-ACQUISITION
PROVISION THAT WAS DESIGNED TO PLUG THE LOOPHOLE CREATED BY THATCHER,
SWIFT, AND ARROW.  ALTHOUGH ARROW, UNLIKE THATCHER AND SWIFT, INVOLVED
A CONSOLIDATION OF THE SAME TYPE AS THE PNB-GIRARD MERGER, THE MEMBERS
OF CONGRESS DREW NO DISTINCTION AMONG THESE CASES, INVARIABLY
DISCUSSING ALL THREE OF THEM IN THE SAME BREATH AS EXAMPLES OF ASSET
ACQUISITIONS.  (FN36)  INDEED, THE HOUSE REPORT STATED THAT: 

"THE SUPREME COURT  ...  HELD (IN ARROW) THAT IF AN ACQUIRING
CORPORATION SECURED TITLE TO THE PHYSICAL ASSETS OF A CORPORATION WHOSE
STOCK IT HAD ACQUIRED BEFORE THE FEDERAL TRADE COMMISSION ISSUES ITS
FINAL ORDER, THE COMMISSION LACKS POWER TO DIRECT DIVESTITURE OF THE
PHYSICAL ASSETS  ...  ."  H.R. REP. NO. 1191, 81ST CONG., 1ST SESS. 5
(1949). 

AND ON THE SENATE FLOOR IT WAS POINTED OUT THAT "THE METHOD BY WHICH
...  (THE MERGER IN ARROW) HAD BEEN ACCOMPLISHED WAS AN INNOCENT ONE
...  ."  96 CONG. REC. 16505 (1950).  CLEARLY THE UNDERSTANDING OF
CONGRESS WAS THAT A CONSOLIDATION OF TWO CORPORATIONS WAS AN
ACQUISITION OF ASSETS.   (FN37) 

NOR DID CONGRESS ACT INADVERTENTLY OR WITHOUT PURPOSE IN LIMITING THE
ASSET-ACQUISITION PROVISION TO CORPORATIONS SUBJECT TO THE JURISDICTION
OF THE FEDERAL TRADE COMMISSION, THEREBY EXCLUDING BANK MERGERS.  THE
REPORTS, HEARINGS, AND DEBATES ON THE 1950 AMENDMENT REVEAL THAT
CONGRESS WAS THEN CONCERNED WITH THE RISING TIDE OF INDUSTRIAL
CONCENTRATION - I.E., "THE EXTERNAL EXPANSION  ... THROUGH MERGERS,
ACQUISITIONS, AND CONSOLIDATIONS" (FN38) OF CORPORATIONS ENGAGED IN
MANUFACTURING, MINING, MERCHANDISING, AND OF OTHER KINDRED COMMERCIAL
ENDEAVORS.  SPECIALIZED AREAS OF THE ECONOMY SUCH AS BANKING WERE NOT
EVEN CONSIDERED.  THUS THE FEDERAL TRADE COMMISSION'S 1948 REPORT ON
MERGERS RECOUNTED THE STATISTICS ON CONCENTRATION IN A MULTITUDE OF
INDUSTRIES - E.G., STEEL, CEMENT, ELECTRICAL EQUIPMENT, FOOD AND DAIRY
PRODUCTS, TOBACCO, TEXTILES, PAPER, CHEMICALS, RUBBER - BUT INCLUDED
NOT ONE FIGURE ON BANKING CONCENTRATION.  (FN39)  THIS REPORT WAS
REPEATEDLY CITED AND HEAVILY RELIED ON BY MEMBERS OF CONGRESS AND
OTHERS TO DEMONSTRATE THE MAGNITUDE OF THE MERGER MOVEMENT AND THE
ECONOMIC DANGERS IT PRESENTED.  (FN40)  IN THE COMMITTEE HEARINGS THE
FOCUS WAS EXCLUSIVELY UPON AMALGAMATION IN THE ORDINARY COMMERCIAL
FIELDS, (FN41) AND SIMILARLY THE SENATE AND HOUSE REPORTS SPOKE SOLELY
OF INDUSTRIAL CONCENTRATION AS THE EVIL TO BE REMEDIED.  (FN42)  ON THE
FLOOR OF THE HOUSE, REPRESENTATIVE CELLER INDICATED THE EXTENT OF
CONCENTRATION OF INDUSTRIAL POWER:   "FOUR COMPANIES NOW HAVE 64
PERCENT OF THE STEEL BUSINESS, FOUR HAVE 82 PERCENT OF THE COPPER
BUSINESS, TWO HAVE 90 PERCENT OF THE ALUMINUM BUSINESS, THREE HAVE 85
PERCENT OF THE AUTOMOBILE BUSINESS, TWO HAVE 80 PERCENT OF THE ELECTRIC
LAMP BUSINESS, FOUR HAVE 75 PERCENT OF THE ELECTRIC REFRIGERATOR
BUSINESS, TWO HAVE 80 PERCENT OF THE GLASS BUSINESS, FOUR HAVE 90
PERCENT OF THE CIGARETTE BUSINESS, AND SO FORTH. 

"THE ANTITRUST LAWS ARE A COMPLETE BUST UNLESS WE PASS THIS BILL." 
95 CONG. REC. 11485 (1949). 

THE LEGISLATORY HISTORY IS THUS SINGULARLY DEVOID OF ANY EVIDENCE
THAT CONGRESS SOUGHT TO DEAL WITH THE SPECIAL PROBLEM OF BANKING
CONCENTRATION. 

I DO NOT MEAN TO SUGGEST, OF COURSE, THAT SEC. 7 OF THE CLAYTON ACT
IS THEREBY RENDERED APPLICABLE ONLY TO ORDINARY COMMERCIAL AND
INDUSTRIAL CORPORATIONS AND NOT TO FIRMS IN ANY "REGULATED" SECTOR OF
THE ECONOMY.  THE POINT IS THAT WHEN CONGRESS INCLUDED IN SEC. 7 ASSET
ACQUISITIONS BY CORPORATIONS SUBJECT TO THE FEDERAL TRADE COMMISSION'S
JURISDICTION, AND AT THE SAME TIME CONTINUED IN SEC. 11 THE FEDERAL
RESERVE BOARD'S JURISDICTION OVER BANKS, IT WAS NOT ACTING
IRRATIONALLY.  RATHER, THE ABSENCE OF ANY MENTION OF BANKS IN THE
LEGISLATIVE HISTORY OF THE 1950 AMENDMENT, VIEWED IN LIGHT OF THE PRIOR
CONGRESSIONAL TREATMENT OF BANKING AS A DISTINCTIVE AREA WITH SPECIAL
CHARACTERISTICS AND NEEDS, COMPELS THE CONCLUSION THAT BANK MERGERS
WERE SIMPLY NOT THEN REGARDED AS PART OF THE LOOPHOLE TO BE PLUGGED. 
(FN43) 

THIS CONCLUSION IS CONFIRMED BY A NUMBER OF ADDITIONAL
CONSIDERATIONS.  IT WAS NOT UNTIL AFTER THE PASSAGE OF THE 1950
AMENDMENT OF SEC. 7 THAT REPRESENTATIVE CELLER, ITS CO-SPONSOR,
REQUESTED THE STAFF OF THE ANTITRUST SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON THE JUDICIARY "TO PREPARE A REPORT INDICATING THE
CONCENTRATION EXISTING IN OUR BANKING SYSTEM."  STAFF OF SUBCOMMITTEE
NO. 5, HOUSE COMMITTEE ON THE JUDICIARY, 82D CONG., 2D SESS., REPORT ON
BANK MERGERS AND CONCENTRATION OF BANKING FACILITIES III (1952).  THE
INTRODUCTION TO THE REPORT REVEALS THAT: 

"ON MARCH 21, 1945, THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE
SYSTEM WROTE TO THE CHAIRMAN OF THE COMMITTEE ON THE JUDICIARY
REQUESTING THAT THE PROVISIONS OF H.R. 2357, SEVENTY-NINTH CONGRESS,
FIRST SESSION, ONE OF THE EARLY PREDECESSORS OF THE CELLER ANTIMERGER
ACT, BE EXTENDED SO AS TO INCLUDE CORPORATIONS SUBJECT TO THE
JURISDICTION OF THE FEDERAL RESERVE BOARD UNDER SECTION 11 OF THE
CLAYTON ACT.  BECAUSE OF THE REVISIONS MADE IN SUBSEQUENT VERSIONS OF
ANTIMERGER BILLS, HOWEVER, IT BECAME IMPRACTICABLE TO INCLUDE WITHIN
THE SCOPE OF THE ACT CORPORATIONS OTHER THAN THOSE SUBJECT TO
REGULATION BY THE FEDERAL TRADE COMMISSION.  BANKS, WHICH ARE PLACED
SQUARELY WITHIN THE AUTHORITY OF THE FEDERAL RESERVE BOARD BY SECTION
11 OF THE CLAYTON ACT, ARE THEREFORE CIRCUMSCRIBED INSOFAR AS MERGERS
ARE CONCERNED ONLY BY THE OLD PROVISIONS OF SECTION 7, AND CERTAIN
ADDITIONAL STATUTES WHICH DO NOT PRESENTLY CONCERN THEMSELVES
SUBSTANTIVELY WITH THE QUESTION OF COMPETITION IN THE FIELD OF
BANKING."  ID., AT VII. 

IT IS ALSO WORTH NOTING THAT IN 1956 REPRESENTATIVE CELLER HIMSELF
INTRODUCED ANOTHER AMENDMENT TO SEC. 7, EXPLAINING THAT "ALL THE BILL
(H.R. 5948) DOES IS PLUG A LOOPHOLE IN THE PRESENT LAW DEALING WITH
BANK MERGERS  ...  .  THIS LOOPHOLE EXISTS BECAUSE SECTION 7 OF THE
CLAYTON ACT PROHIBITS BANK MERGERS  ...  ONLY IF SUCH MERGERS ARE
ACCOMPLISHED BY STOCK ACQUISITION."  102 CONG. REC. 2109 (1956).  THE
BILL READ IN PERTINENT PART:  "NO BANK  ...  SHALL ACQUIRE  ...  THE
WHOLE OR ANY PART OF THE ASSETS OF ANOTHER CORPORATION ENGAGED ALSO IN
COMMERCE  ...  ."  IBID.  THE AMENDMENT PASSED THE HOUSE BUT WAS
DEFEATED IN THE SENATE. 

FOR ALL THESE REASONS, I THINK THE CONCLUSION IS INESCAPABLE THAT
SEC. 7 OF THE CLAYTON ACT DOES NOT APPLY TO THE PNB-GIRARD MERGER.  THE
COURT'S CONTRARY CONCLUSION SEEMS TO ME LITTLE BETTER THAN A TOUR DE
FORCE.  (FN44) 

FN1  SEE WEMPLE AND CUTLER, THE FEDERAL BANK MERGER LAW AND THE
ANTITRUST LAWS, 16 BUS.  LAW.  994, 995 (1961).  MANY OF THE BILLS ARE
SUMMARIZED IN FUNK, ANTITRUST LEGISLATION AFFECTING BANK MERGERS, 75
BANKING L.J. 369 (1958). 

FN2  THESE AGENCIES AND THE AREAS OF THEIR PRIMARY SUPERVISORY
RESPONSIBILITY ARE:  (1) THE COMPTROLLER OF THE CURRENCY - NATIONAL
BANKS; (2) THE FEDERAL RESERVE SYSTEM - STATE RESERVE-MEMBER BANKS; (3)
THE FDIC - INSURED NONMEMBER BANKS. 

FN3  SAMUELSON, ECONOMICS (5TH ED. 1961), P. 311. 

FN4  FOR EXAMPLE, SAVINGS AND LOAN ASSOCIATIONS, CREDIT UNIONS, AND
OTHER INSTITUTIONS COMPETE WITH BANKS IN INSTALLMENT LENDING TO
INDIVIDUALS, AND BANKS ARE IN COMPETITION WITH INDIVIDUALS IN THE
PERSONAL TRUST FIELD. 

FN5  SINCE BANK INSOLVENCIES DESTROY SOURCES OF CREDIT, NOT ONLY
BORROWERS BUT ALSO OTHERS WHO RELY ON THE BORROWERS' ABILITY TO SECURE
LOANS MAY BE ADVERSELY AFFECTED.  SEE BERLE, BANKING UNDER THE ANTI
TRUST LAWS, 49 COL. L. REV. 589, 592 (1949). 

FN6   THE TERM "MERGER" IS GENERALLY USED THROUGHOUT THIS OPINION TO
DESIGNATE ANY FORM OF CORPORATE AMALGAMATION.  SEE NOTE 7 IN THE
COURT'S OPINION, ANTE, P. 332.  OCCASIONALLY, HOWEVER, AS IN THE ABOVE
PARAGRAPH, THE TERMS "MERGER" AND "CONSOLIDATION" ARE USED IN THEIR
TECHNICAL SENSE. 

FN7  40 STAT. 1043, AS AMENDED, 12 U.S.C. (SUPP. IV, 1963) SEC. 215. 

FN8  44 STAT. 1225, AS AMENDED, 12 U.S.C. (SUPP. IV, 1963) SEC. 215. 

FN9  66 STAT. 599, AS AMENDED, 12 U.S.C. (SUPP. IV, 1963) SEC. 215A. 

FN10  SEE PATON, CONVERSION, MERGER AND CONSOLIDATION LEGISLATION -
"TWO-WAY STREET" FOR NATIONAL AND STATE BANKS, 71 BANKING L.J. 15
(1954). 

FN11  64 STAT. 455, AS AMENDED, 12 U.S.C. SEC. 214A. 

FN12  64 STAT. 457; SEE 64 STAT. 892 (NOW 74 STAT. 129, 12 U.S.C.
(SUPP. IV, 1963) SEC. 1828(C)). 

FN13  IBID.  HOWEVER, UNDER THE ACT, INSURED BANKS MERGING WITH
INSURED STATE BANKS DID NOT HAVE TO OBTAIN APPROVAL UNLESS THE CAPITAL
STOCK OR SURPLUS OF THE RESULTING OR ASSUMING BANK WOULD BE LESS THAN
THE AGGREGATE CAPITAL STOCK OR SURPLUS OF ALL THE MERGING BANKS. 

FN14  SEE HEARINGS BEFORE THE ANTITRUST SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 84TH CONG., 1ST SESS., SER.  3, PT. 1, PP.
243-244 (1955); HEARINGS ON S. 3911 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON BANKING AND CURRENCY, 84TH CONG., 2D SESS.  60-61, 84
(1956); HEARINGS ON S. 1062 BEFORE THE SENATE COMMITTEE ON BANKING AND
CURRENCY, 86TH CONG., 1ST SESS. 9 (1959). 

FN15  SEE ALSO H.R. REP. NO. 1416, 86TH CONG., 2D SESS. 5 (1960)("THE
FEDERAL ANTITRUST LAWS ARE ALSO INADEQUATE TO THE TASK OF REGULATING
BANK MERGERS; WHILE THE ATTORNEY GENERAL MAY MOVE AGAINST BANK MERGERS
TO A LIMITED EXTENT UNDER THE SHERMAN ACT, THE CLAYTON ACT OFFERS
LITTLE HELP."); ID., AT 9 ("BECAUSE SECTION 7 OF THE CLAYTON ACT IS
LIMITED, INSOFAR AS BANKS ARE CONCERNED, TO CASES WHERE A MERGER IS
ACCOMPLISHED THROUGH ACQUISITION OF STOCK, AND BECAUSE BANK MERGERS ARE
ACCOMPLISHED BY ASSET ACQUISITIONS RATHER THAN STOCK ACQUISITIONS, THE
ACT OFFERS 'LITTLE HELP,' IN THE WORDS OF HON. ROBERT A. BICKS, ACTING
HEAD OF THE ANTITRUST DIVISION, IN CONTROLLING BANK MERGERS."). 

FN16  IN THE SENATE, A SPONSOR OF S. 1062, SENATOR FULBRIGHT,
REPORTED THAT THE "1950 AMENDMENT TO SECTION 7 OF THE CLAYTON ACT,
WHICH FOR THE FIRST TIME IMPOSED CONTROLS OVER MERGERS BY MEANS OTHER
THAN STOCK ACQUISITIONS, DID NOT APPLY TO BANK MERGERS WHICH ARE
PRACTICALLY INVARIABLY ACCOMPLISHED BY MEANS OTHER THAN STOCK
ACQUISITION.  ACCORDINGLY FOR ALL PRACTICAL PURPOSES BANK MERGERS HAVE
BEEN AND STILL ARE EXEMPT FROM SECTION 7 OF THE CLAYTON ACT."  106
CONG. REC. 9711 (1960). 

FN17  E.G., H.R. 5948, 84TH CONG. 1ST SESS. (1955); S. 198, 85TH
CONG., 1ST SESS. (1957); S. 722, 85TH CONG., 1ST SESS. (1957); SEE NOTE
1, SUPRA. 

FN18  S. REP. NO. 196, 86TH CONG., 1ST SESS. 17 (1959):  "TIME AND
AGAIN THE NATION HAS SUFFERED FROM THE RESULTS OF UNREGULATED AND
UNCONTROLLED COMPETITION IN THE FIELD OF BANKING, AND FROM
INSUFFICIENTLY REGULATED COMPETITION  ...  .  THE RAPID INCREASE IN THE
NUMBER OF SMALL WEAK BANKS, TO SUCH A LARGE NUMBER THAT THE COMPTROLLER
COULD NOT EFFECTIVELY SUPERVISE THEM OR CONTROL ANY BUT THE WORST
ABUSES, WAS ONE OF THE FACTORS WHICH LED TO THE PANIC OF 1907. 

"THE BANKING COLLAPSE IN THE EARLY 1930'S AGAIN WAS IN LARGE PART THE
RESULT OF INSUFFICIENT REGULATION AND CONTROL OF BANKS, IN EFFECT THE
RESULT OF TOO MUCH COMPETITION."  SEE ALSO 105 CONG. REC. 8076 (1959):
"BUT UNLIMITED AND UNRESTRICTED COMPETITION IN BANKING IS JUST NOT
POSSIBLE.  WE HAVE HAD TOO MANY PANICS AND BANKING CRISES AND BANK
FAILURES, LARGELY AS THE RESULT OF EXCESSIVE COMPETITION IN BANKING, TO
CONSIDER FOR A MOMENT GOING BACK TO THE DAYS OF FREE BANKING OR
UNREGULATED BANKING." 

FN19  SEE ALSO S. REP. NO. 196, 86TH CONG., 1ST SESS. 16 (1959):
"BUT IT IS IMPOSSIBLE TO REQUIRE UNRESTRICTED COMPETITION IN THE FIELD
OF BANKING, AND IT WOULD BE IMPOSSIBLE TO SUBJECT BANKS TO THE RULES
APPLICABLE TO ORDINARY INDUSTRIAL AND COMMERCIAL CONCERNS, NOT SUBJECT
TO REGULATION AND NOT VESTED WITH A PUBLIC INTEREST." 

FN20  FOR THE PERTINENT TEXT OF THE STATUTE, SEE NOTE 8 IN THE
COURT'S OPINION, ANTE, PP. 332-333. 

FN21  THESE FACTORS ARE:  "THE FINANCIAL HISTORY AND CONDITION OF
EACH OF THE BANKS INVOLVED, THE ADEQUACY OF ITS CAPITAL STRUCTURE, ITS
FUTURE EARNINGS PROSPECTS, THE GENERAL CHARACTER OF ITS MANAGEMENT, THE
CONVENIENCE AND NEEDS OF THE COMMUNITY TO BE SERVED, AND WHETHER OR NOT
ITS CORPORATE POWERS ARE CONSISTENT WITH THE PURPOSES OF THIS
CHAPTER."  12 U.S.C. (SUPP. IV, 1963) SEC. 1828(C).  COMPARE SEC. 6 OF
THE FEDERAL DEPOSIT INSURANCE ACT, 12 U.S.C. SEC. 1816. 

FN22  SEE ALSO 106 CONG. REC. 7259 (1960):  "THE LANGUAGE OF S. 1062
AS AMENDED BY THE HOUSE BANKING AND CURRENCY COMMITTEE AND AS IT
APPEARS IN THE BILL WE ARE NOW ABOUT TO PASS IN THE HOUSE MAKES IT
CLEAR THAT THE COMPETITIVE AND MONOPOLISTIC FACTORS ARE TO BE
CONSIDERED ALONG WITH THE BANKING FACTORS AND THAT AFTER CONSIDERING
ALL OF THE FACTORS INVOLVED, IF THE RESULTING INSTITUTION WILL BE IN
THE PUBLIC INTEREST, THEN THE APPLICATION SHOULD BE APPROVED AND
OTHERWISE DISAPPROVED." 

FN23  106 CONG. REC. 7257  (1960):  "THIS PUTS THE RESPONSIBILITY FOR
ACTING ON A PROPOSED MERGER WHERE IT BELONGS - IN THE AGENCY CHARGED
WITH SUPERVISING AND EXAMINING THE BANK WHICH WILL RESULT FROM THE
MERGER.  OUT OF THEIR YEARS OF EXPERIENCE IN SUPERVISING BANKS, OUR
FEDERAL BANKING AGENCIES HAVE DEVELOPED SPECIALIZED KNOWLEDGE OF
BANKING AND THE PEOPLE WHO ENGAGE IN IT.  THEY ARE EXPERTS AT JUDGING
THE CONDITION OF THE BANKS INVOLVED, THEIR PROSPECTS, THEIR MANAGEMENT,
AND THE NEEDS OF THE COMMUNITY FOR BANKING SERVICES.  THEY SHOULD HAVE
PRIMARY RESPONSIBILITY IN DECIDING WHETHER A PROPOSED MERGER WOULD BE
IN THE PUBLIC INTEREST." 

FN24  H.R. REP. NO. 1416, 86TH CONG., 2D SESS. 11-12 (1960):  "WE ARE
CONVINCED, ALSO, THAT APPROVAL OF A MERGER SHOULD DEPEND ON A POSITIVE
SHOWING OF SOME BENEFIT TO BE DERIVED FROM IT.  AS PREVIOUSLY
INDICATED, YOUR COMMITTEE IS NOT PREPARED TO SAY THAT THE CASES
ENUMERATED IN THE HEARINGS ARE THE ONLY INSTANCES IN WHICH A MERGER IS
IN THE PUBLIC INTEREST, NOR ARE WE PREPARED TO DEVISE A SPECIFIC AND
EXCLUSIVE LIST OF SITUATIONS IN WHICH A MERGER SHOULD BE APPROVED." 

FN25  COMPARE STATE BOARD OF INS. V. TODD SHIPYARDS CORP., 370 U.S.
451, 457, IN WHICH THIS COURT REFUSED TO RECONSIDER CERTAIN PRIOR
DECISIONS BECAUSE CONGRESS HAD "POSITED A REGIME OF STATE REGULATION"
OF THE INSURANCE BUSINESS ON THEIR CONTINUING VALIDITY.  CF.  TOOLSON
V. NEW YORK YANKEES, INC., 346 U.S. 356. 

FN26  IF A BANK MERGER SUCH AS THIS FALLS WITHIN THE CATEGORY OF A
"STOCK" ACQUISITION, A SEC. 7 SUIT TO ENJOIN IT MAY BE BROUGHT NOT ONLY
BY THE ATTORNEY GENERAL, BUT BY THE FEDERAL RESERVE BOARD AS WELL.  SEE
SEC. 11 OF THE CLAYTON ACT, 15 U.S.C. SEC. 21 (VESTING AUTHORITY IN THE
BOARD TO ENFORCE SEC. 7 "WHERE APPLICABLE TO BANKS").  IN AN ATTEMPT TO
RETAIN SOME SEMBLANCE OF THE STRUCTURE ERECTED BY CONGRESS IN THE BANK
MERGER ACT, THE COURT STATES THAT IT "SUPPLANTED ... WHATEVER AUTHORITY
THE FRB MAY HAVE ACQUIRED UNDER SEC. 11, BY VIRTUE OF THE AMENDMENT OF
SEC. 7, TO ENFORCE SEC. 7 AGAINST BANK MERGERS."  ANTE, P. 344, NOTE
22.  SINCE BOTH THE ATTORNEY GENERAL AND THE FEDERAL RESERVE BOARD HAVE
PURELY ADVISORY ROLES WHERE A BANK MERGER WILL RESULT IN A NATIONAL
BANK, THE COURT'S REASONING WITH RESPECT TO THE EFFECT OF THE BANK
MERGER ACT UPON ENFORCEMENT AUTHORITY SHOULD APPLY WITH EQUAL FORCE TO
BOTH. 

FN27  INDEED THE COURT HAS ERECTED A SIMPLE YARDSTICK IN ORDER TO
ALLEVIATE THE AGONY OF ANALYZING ECONOMIC DATA - CONTROL OF 30% OF A
COMMERCIAL BANKING MARKET IS PROHIBITED.  ANTE, PP. 363-364. 

FN28  ALTHOUGH SEC. 7 OF THE CLAYTON ACT IS APPLICABLE TO AN OUTRIGHT
PURCHASE OF BANK STOCK, THIS FORM OF AMALGAMATION IS INFREQUENTLY USED
IN THE BANKING FIELD AND DOES NOT INVOLVE DIVESTITURE PROBLEMS OF THE
SAME MAGNITUDE AS DOES AN ASSET ACQUISITION. 

FN29  IT IS TRUE, AS THE COURT POINTS OUT (ANTE, P. 354), THAT
CONGRESS, IN ENACTING THE BANK MERGER ACT, AGREED THAT THE
APPLICABILITY OF THE SHERMAN ACT TO BANKING SHOULD NOT BE DISTURBED. 
SEE, E.G., 105 CONG. REC. 8076 (1959).  BUT SURELY THIS ALONE PROVIDES
NO CONCEIVABLE JUSTIFICATION FOR APPLYING THE CLAYTON ACT AS WELL. 
APART FROM THE FACT THAT THE SHERMAN ACT COVERS MANY KINDS OF
RESTRAINTS BESIDES MERGERS, ONE OF THE SPONSORS OF THE BANK MERGER ACT
(SENATOR FULBRIGHT) EXPRESSED HIS EXPECTATION THAT IN A SHERMAN ACT
CASE A BANK MERGER WOULD NOT BE SUBJECTED TO STRICT ANTITRUST STANDARDS
TO THE EXCLUSION OF ALL OTHER CONSIDERATIONS:  "AND EVEN IF THE SHERMAN
ACT IS HELD TO APPLY TO BANKING AND TO BANK MERGERS, IT SEEMS CLEAR
THAT UNDER THE RULE OF REASON SPELLED OUT IN THE STANDARD OIL CASE,
DIFFERENT CONSIDERATIONS WILL BE FOUND APPLICABLE, IN A REGULATED FIELD
LIKE BANKING, IN DETERMINING WHETHER ACTIVITIES WOULD 'UNDULY DIMINISH
COMPETITION,' IN THE WORDS OF THE SUPREME COURT IN THAT CASE."  106
CONG. REC. 9711 (1960).  MOREOVER, THIS COURT HAS RECOGNIZED IN OTHER
AREAS THAT IT MAY BE NECESSARY TO ACCOMMODATE THE SHERMAN ACT TO
REGULATORY POLICY.  MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67,
83; FEDERAL COMMUNICATIONS COMM'N V. RCA COMMUNICATIONS, INC., 346 U.S.
86, 91-92.  SEE ALSO UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495,
527.  AND OF COURSE THE SHERMAN ACT IS CONCERNED MORE WITH EXISTING
ANTICOMPETITIVE EFFECTS THAN WITH FUTURE PROBABILITIES, AND THUS WOULD
NOT REACH INCIPIENT RESTRAINTS TO THE SAME EXTENT AS WOULD SEC. 7 OF
THE CLAYTON ACT.  SEE BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294,
317-318 AND NOTES 32, 33. 

FN30  IN THESE RESPECTS A MERGER IS PRECISELY THE CONTRARY OF WHAT
SEC. 7 WAS ORIGINALLY DESIGNED TO PROSCRIBE - THE SECRET ACQUISITION OF
CORPORATE CONTROL.  SEE THE COURT'S OPINION, ANTE, P. 338. 

FN31  THAT THE STOCK-ACQUISITION PROVISION WAS NOT INTENDED TO COVER
MERGERS IS STRONGLY SUGGESTED BY THE SECOND PARAGRAPH OF SEC. 7:  "NO
CORPORATION SHALL ACQUIRE  ...  ANY PART OF THE STOCK  ... OF ONE OR
MORE CORPORATIONS  ...  WHERE  ...  THE EFFECT  ...  OF THE USE OF SUCH
STOCK BY THE VOTING OR GRANTING OF PROXIES  ...  MAY BE SUBSTANTIALLY
TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY."  15 U.S.C.
SEC. 18.  AFTER A MERGER HAS BEEN CONSUMMATED, THE RESULTING
CORPORATION HOLDS NO STOCK IN ANY PARTY TO THE MERGER; THUS THERE CAN
BE IN THIS SITUATION NO SUCH THING AS A RESTRAINT OF TRADE BY "THE USE"
OF THE VOTING POWER OF ACQUIRED STOCK. 

FN32  ON THIS POINT, THE DISSENTERS AGREED:  "IT IS TRUE THAT THE
CLAYTON ACT DOES NOT FORBID CORPORATE MERGERS  ...  ."  291 U.S., AT
600.  SEE ALSO UNITED STATES V. CELANESE CORP. OF AMERICA, 91 F. SUPP.
14. 

FN33  SEE ALSO HEARINGS ON H.R. 988, H.R. 1240, H.R. 2006, H.R. 2734
BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 81ST
CONG., 1ST SESS. 38-39 (1949); HEARINGS ON H.R. 2734 BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY, 81ST CONG., 1ST
& 2D SESS. 109-110 (1950):  "THE LOOPHOLE SOUGHT TO BE FILLED RESULTED
FROM A SERIES OF SUPREME COURT DECISIONS.  (SWIFT & CO. V. FTC AND
THATCHER MFG. CO. V. FTC (272 U.S. 554); ARROW-HART & HEGEMAN CO. V.
FTC (291 U.S. 587).)  IN THESE DECISIONS THE SUPREME COURT HELD THAT
STOCK OF A COMPETITOR, GAVE THE FEDERAL TRADE COMMISSION NO AUTHORITY
UNDER SECTION 11 TO ORDER DIVESTITURE OF ASSETS WHICH HAD BEEN ACQUIRED
BEFORE A CEASE-AND-DESIST ORDER WAS ISSUED, EVEN THOUGH THE ACQUISITION
RESULTED FROM THE VOTING OF ILLEGALLY HELD STOCK." 

FN34  THE FEDERAL TRADE COMMISSION HAD ASSUMED PRIMARY ENFORCEMENT
RESPONSIBILITY BEFORE THE 1950 AMENDMENT.  SEE MARTIN, MERGERS AND THE
CLAYTON ACT (1959), P. 197. 

FN35  COMPARE NOTE 26, SUPRA. 

FN36  SEE NOTE 33 SUPRA; HEARINGS ON H.R. 2734 BEFORE A SUBCOMMITTEE
OF THE SENATE COMMITTEE ON THE JUDICIARY, 81ST CONG., 1ST & 2D SESS. 97
(1950).  AND THIS COURT HAS, AFTER THE 1950 AMENDMENT, DESCRIBED ARROW
AS A CASE INVOLVING AN ASSET ACQUISITION.  BROWN SHOE CO. V. UNITED
STATES, 370 U.S. 294, 313 AND NOTE 20. 

FN37  THE SINGLE EXCERPT QUOTED BY THE COURT (ANTE, P. 345) CASTS NO
DOUBT ON THIS PROPOSITION, FOR SENATOR KILGORE'S REMARK OCCURRED IN THE
COURSE OF A DISCUSSION IN WHICH HE WAS TRYING TO MAKE THE POINT THAT
THERE IS NO DIFFERENCE IN PRACTICAL EFFECT, AS OPPOSED TO THE LEGAL
DISTINCTION, BETWEEN A MERGER AND A STOCK ACQUISITION.  THUS AT THE END
OF THE PARAGRAPH QUOTED BY THE COURT THE SENATOR STATED:  "  ...  I
CANNOT SEE HOW ON EARTH YOU CAN GET THE IDEA THAT THE PURCHASE OF THE
STOCK OF THE CORPORATION, ALL OF IT, DOES NOT CARRY WITH IT THE
TRANSFER OF ALL OF THE PHYSICAL ASSETS IN THAT CORPORATION."  HEARINGS
ON H.R. 2734 BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY, 81ST CONG., 1ST & 2D SESS. 176 (1950). 

FN38  H.R. REP. NO. 1191, 81ST CONG., 1ST SESS. 2 (1949). 

FN39  FEDERAL TRADE COMMISSION, THE MERGER MOVEMENT:  A SUMMARY
REPORT (1948), PASSIM. 

FN40  E.G., HEARINGS ON H.R. 988, H.R. 1240, H.R. 2006, H.R. 2734
BEFORE SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 81ST
CONG., 1ST SESS. 39-40 (1949); 95 CONG. REC. 11503 (1949); 96 CONG.
REC. 16505 (1950). 

FN41  HEARINGS ON H.R. 2734 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, 81ST CONG., 1ST & 2D SESS. 5-6, 17, 57-59
(1950); HEARINGS ON H.R. 988, H.R. 1240, H.R. 2006, H.R. 2734 BEFORE
SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 81ST CONG.,
1ST SESS. 40, 113 (1949). 

FN42  S. REP. NO. 1775, 81ST CONG., 2D SESS. 3 (1950); H.R. REP. NO.
1191, 81ST CONG., 1ST SESS. 2-3 (1949). 

FN43  IT IS INTERESTING TO NOTE THAT IN THE SAME YEAR IN WHICH SEC. 7
WAS AMENDED CONGRESS PASSED AN ACT FACILITATING CERTAIN KINDS OF BANK
MERGERS WHICH HAD THERETOFORE BEEN PROHIBITED.  SEE NOTE 11, SUPRA, AND
ACCOMPANYING TEXT. 

FN44  SINCE THE COURT DOES NOT REACH THE SHERMAN ACT ASPECT OF THIS
CASE, IT WOULD SERVE NO USEFUL PURPOSE FOR ME TO DO SO. 

MEMORANDUM OF MR. JUSTICE GOLDBERG. 

I AGREE FULLY WITH MY BROTHER HARLAN THAT SEC. 7 OF THE CLAYTON ACT
HAS NO APPLICATION TO BANK MERGERS OF THE TYPE INVOLVED HERE, AND I
THEREFORE JOIN IN THE CONCLUSIONS EXPRESSED IN HIS OPINION ON THAT
POINT.  HOWEVER, WHILE I THUS DISSENT FROM THE COURT'S HOLDING WITH
RESPECT TO THE APPLICABILITY OF THE CLAYTON ACT TO THIS MERGER, I WISH
TO MAKE CLEAR THAT I DO NOT NECESSARILY DISSENT FROM ITS JUDGMENT
INVALIDATING THE MERGER.  TO DO SO WOULD REQUIRE ME TO CONCLUDE IN
ADDITION THAT ON THE RECORD AS IT STANDS THE GOVERNMENT HAS FAILED TO
PROVE A VIOLATION OF THE SHERMAN ACT, WHICH IS FULLY APPLICABLE TO THE
COMMERCIAL BANKING BUSINESS.  IN MY OPINION THERE IS A SUBSTANTIAL
SHERMAN ACT ISSUE IN THIS CASE, BUT SINCE THE COURT DOES NOT REACH IT
AND SINCE MY VIEWS RELATIVE THERETO WOULD BE SUPERFLUOUS IN LIGHT OF
TODAY'S DISPOSITION OF THE CASE, I EXPRESS NO ULTIMATE CONCLUSION
CONCERNING IT.  COMPARE RESCUE ARMY V. MUNICIPAL COURT OF LOS ANGELES,
331 U.S. 549, 585 (MURPHY, J., DISSENTING); POE V. ULLMAN, 367 U.S.
497, 555 (STEWART, J., DISSENTING). 
..END :






SHERBERT V. VERNER, SOUTH CAROLINA EMPLOYMENT SECURITY COMMISSION 374
U.S. 398 


NO. 526.  ARGUED APRIL 24, 1963 - DECIDED JUNE 17, 1963 - 240 S.C. 286,
125 S.E.2D 737, REVERSED. 


APPELLANT, A MEMBER OF THE SEVENTH-DAY ADVENTIST CHURCH, WAS
DISCHARGED BY HER SOUTH CAROLINA EMPLOYER BECAUSE SHE WOULD NOT WORK ON
SATURDAY, THE SABBATH DAY OF HER FAITH.  SHE WAS UNABLE TO OBTAIN OTHER
EMPLOYMENT BECAUSE SHE WOULD NOT WORK ON SATURDAY, AND SHE FILED A
CLAIM FOR UNEMPLOYMENT COMPENSATION BENEFITS UNDER THE SOUTH CAROLINA
UNEMPLOYMENT COMPENSATION ACT, WHICH PROVIDES THAT A CLAIMANT IS
INELIGIBLE FOR BENEFITS IF HE HAS FAILED, WITHOUT GOOD CAUSE, TO ACCEPT
AVAILABLE SUITABLE WORK WHEN OFFERED HIM.  THE STATE COMMISSION DENIED
APPELLANT'S APPLICATION ON THE GROUND THAT SHE WOULD NOT ACCEPT
SUITABLE WORK WHEN OFFERED, AND ITS ACTION WAS SUSTAINED BY THE STATE
SUPREME COURT.  HELD:  AS SO APPLIED, THE SOUTH CAROLINA STATUTE
ABRIDGED APPELLANT'S RIGHT TO THE FREE EXERCISE OF HER RELIGION, IN
VIOLATION OF THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT.  PP. 399-410. 

(A)  DISQUALIFICATION OF APPELLANT FOR UNEMPLOYMENT COMPENSATION
BENEFITS, SOLELY BECAUSE OF HER REFUSAL TO ACCEPT EMPLOYMENT IN WHICH
SHE WOULD HAVE TO WORK ON SATURDAY CONTRARY TO HER RELIGIOUS BELIEF,
IMPOSES AN UNCONSTITUTIONAL BURDEN ON THE FREE EXERCISE OF HER
RELIGION.  PP. 403-406. 

(B)  THERE IS NO COMPELLING STATE INTEREST ENFORCED IN THE
ELIGIBILITY PROVISIONS OF THE SOUTH CAROLINA STATUTE WHICH JUSTIFIES
THE SUBSTANTIAL INFRINGEMENT OF APPELLANT'S RIGHT TO RELIGIOUS FREEDOM
UNDER THE FIRST AMENDMENT.  PP. 406-409. 

(C)  THIS DECISION DOES NOT FOSTER THE "ESTABLISHMENT" OF THE SEVENTH
DAY ADVENTIST RELIGION IN SOUTH CAROLINA CONTRARY TO THE FIRST
AMENDMENT.  PP. 409-410. 

SHERBERT V. VERNER ET AL., MEMBERS OF SOUTH CAROLINA EMPLOYMENT SECURITY
COMMISSION, ET AL. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANT, A MEMBER OF THE SEVENTH-DAY ADVENTIST CHURCH, WAS
DISCHARGED BY HER SOUTH CAROLINA EMPLOYER BECAUSE SHE WOULD NOT WORK ON
SATURDAY, THE SABBATH DAY OF HER FAITH.  (FN1)  WHEN SHE WAS UNABLE TO
OBTAIN OTHER EMPLOYMENT BECAUSE FROM CONSCIENTIOUS SCRUPLES SHE WOULD
NOT TAKE SATURDAY WORK, (FN2) SHE FILED A CLAIM FOR UNEMPLOYMENT
COMPENSATION BENEFITS UNDER THE SOUTH CAROLINA UNEMPLOYMENT
COMPENSATION ACT.  (FN3)  THE LAW PROVIDES THAT, TO BE ELIGIBLE FOR
BENEFITS, A CLAIMANT MUST BE "ABLE TO WORK AND  ...  AVAILABLE FOR
WORK"; AND, FURTHER, THAT A CLAIMANT IS INELIGIBLE FOR BENEFITS "IF
...  HE HAS FAILED, WITHOUT GOOD CAUSE  ...  TO ACCEPT AVAILABLE
SUITABLE WORK WHEN OFFERED HIM BY THE EMPLOYMENT OFFICE OR THE EMPLOYER
...  ."  THE APPELLEE EMPLOYMENT SECURITY COMMISSION, IN
ADMINISTRATIVE PROCEEDINGS UNDER THE STATUTE, FOUND THAT APPELLANT'S
RESTRICTION UPON HER AVAILABILITY FOR SATURDAY WORK BROUGHT HER WITHIN
THE PROVISION DISQUALIFYING FOR BENEFITS INSURED WORKERS WHO FAIL,
WITHOUT GOOD CAUSE, TO ACCEPT "SUITABLE WORK WHEN OFFERED  ...  BY THE
EMPLOYMENT OFFICE OR THE EMPLOYER  ...  ."  THE COMMISSION'S FINDING
WAS SUSTAINED BY THE COURT OF COMMON PLEAS FOR SPARTANBURG COUNTY. 
THAT COURT'S JUDGMENT WAS IN TURN AFFIRMED BY THE SOUTH CAROLINA
SUPREME COURT, WHICH REJECTED APPELLANT'S CONTENTION THAT, AS APPLIED
TO HER, THE DISQUALIFYING PROVISIONS OF THE SOUTH CAROLINA STATUTE
ABRIDGED HER RIGHT TO THE FREE EXERCISE OF HER RELIGION SECURED UNDER
THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT THROUGH THE FOURTEENTH
AMENDMENT.  THE STATE SUPREME COURT HELD SPECIFICALLY THAT APPELLANT'S
INELIGIBILITY INFRINGED NO CONSTITUTIONAL LIBERTIES BECAUSE SUCH A
CONSTRUCTION OF THE STATUTE "PLACES NO RESTRICTION UPON THE APPELLANT'S
FREEDOM OF RELIGION NOR DOES IT IN ANY WAY PREVENT HER IN THE EXERCISE
OF HER RIGHT AND FREEDOM TO OBSERVE HER RELIGIOUS BELIEFS IN ACCORDANCE
WITH THE DICTATES OF HER CONSCIENCE."  240 S.C. 286, 303-304, 125
S.E.2D 737, 746.  (FN4)  WE NOTED PROBABLE JURISDICTION OF APPELLANT'S
APPEAL.  371 U.S. 938.  WE REVERSE THE JUDGMENT OF THE SOUTH CAROLINA
SUPREME COURT AND REMAND FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

                                        I. 

THE DOOR OF THE FREE EXERCISE CLAUSE STANDS TIGHTLY CLOSED AGAINST
ANY GOVERNMENTAL REGULATION OF RELIGIOUS BELIEFS AS SUCH, CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303.  GOVERNMENT MAY NEITHER COMPEL
AFFIRMATION OF A REPUGNANT BELIEF, TORCASO V. WATKINS, 367 U.S. 488;
NOR PENALIZE OR DISCRIMINATE AGAINST INDIVUDUALS OR GROUPS BECAUSE THEY
HOLD RELIGIOUS VIEWS ABHORRENT TO THE AUTHORITIES, FOWLER V. RHODE
ISLAND, 345 U.S. 67; NOR EMPLOY THE TAXING POWER TO INHIBIT THE
DISSEMINATION OF PARTICULAR RELIGIOUS VIEWS, MURDOCK V. PENNSYLVANIA,
319 U.S. 105; FOLLETT V. MCCORMICK, 321 U.S. 573; CF. GROSJEAN V.
AMERICAN PRESS CO., 297 U.S. 233.  ON THE OTHER HAND, THE COURT HAS
REJECTED CHALLENGES UNDER THE FREE EXERCISE CLAUSE TO GOVERNMENTAL
REGULATION OF CERTAIN OVERT ACTS PROMPTED BY RELIGIOUS BELIEFS OR
PRINCIPLES, FOR "EVEN WHEN THE ACTION IS IN ACCORD WITH ONE'S RELIGIOUS
CONVICTIONS, IT IS NOT TOTALLY FREE FROM LEGISLATIVE RESTRICTIONS." 
BRAUNFELD V. BROWN, 366 U.S. 599, 603.  THE CONDUCT OR ACTIONS SO
REGULATED HAVE INVARIABLY POSED SOME SUBSTANTIAL THREAT TO PUBLIC
SAFETY, PEACE OR ORDER.  SEE, E.G., REYNOLDS V. UNITED STATES, 98 U.S.
145; JACOBSON V. MASSACHUSETTS, 197 U.S. 11; PRINCE V. MASSACHUSETTS,
321 U.S. 158; CLEVELAND V. UNITED STATES, 329 U.S. 14. 

PLAINLY ENOUGH, APPELLANT'S CONSCIENTIOUS OBJECTION TO SATURDAY WORK
CONSTITUTES NO CONDUCT PROMPTED BY RELIGIOUS PRINCIPLES OF A KIND
WITHIN THE REACH OF STATE LEGISLATION.  IF, THEREFORE, THE DECISION OF
THE SOUTH CAROLINA SUPREME COURT IS TO WITHSTAND APPELLANT'S
CONSTITUTIONAL CHALLENGE, IT MUST BE EITHER BECAUSE HER
DISQUALIFICATION AS A BENEFICIARY REPRESENTS NO INFRINGEMENT BY THE
STATE OF HER CONSTITUTIONAL RIGHTS OF FREE EXERCISE, OR BECAUSE ANY
INCIDENTAL BURDEN ON THE FREE EXERCISE OF APPELLANT'S RELIGION MAY BE
JUSTIFIED BY A "COMPELLING STATE INTEREST IN THE REGULATION OF A
SUBJECT WITHIN THE STATE'S CONSTITUIONAL POWER TO REGULATE  ...  ." 
NAACP V. BUTTON, 371 U.S. 415, 438. 

              II. 

WE TURN FIRST TO THE QUESTION WHETHER THE DISQUALIFICATION FOR
BENEFITS IMPOSES ANY BURDEN ON THE FREE EXERCISE OF APPELLANT'S
RELIGION.  WE THINK IT IS CLEAR THAT IT DOES.  IN A SENSE THE
CONSEQUENCES OF SUCH A DISQUALIFICATION TO RELIGIOUS PRINCIPLES AND
PRACTICES MAY BE ONLY AN INDIRECT RESULT OF WELFARE LEGISLATION WITHIN
THE STATE'S GENERAL COMPETENCE TO ENACT; IT IS TRUE THAT NO CRIMINAL
SANCTIONS DIRECTLY COMPEL APPELLANT TO WORK A SIX-DAY WEEK.  BUT THIS
IS ONLY THE BEGINNING, NOT THE END, OF OUR INQUIRY.  (FN5)  FOR "IF THE
PURPOSE OR EFFECT OF A LAW IS TO IMPEDE THE OBSERVANCE OF ONE OR ALL
RELIGIONS OR IS TO DISCRIMINATE INVIDIOUSLY BETWEEN RELIGIONS, THAT LAW
IS CONSTITUTIONALLY INVALID EVEN THOUGH THE BURDEN MAY BE CHARACTERIZED
AS BEING ONLY INDIRECT."  BRAUNFIELD V. BROWN, SUPRA, AT 607.  HERE NOT
ONLY IS IT APPARENT THAT APPELLANT'S DECLARED INELIGIBILITY FOR
BENEFITS DERIVES SOLELY FROM THE PRACTICE OF HER RELIGION, BUT THE
PRESSURE UPON HER TO FOREGO THAT PRACTICE IS UNMISTAKABLE.  THE RULING
FORCES HER TO CHOOSE BETWEEN FOLLOWING THE PRECEPTS OF HER RELIGION AND
FORFEITING BENEFITS, ON THE ONE HAND, AND ABANDONING ONE OF THE
PRECEPTS OF HER RELIGION IN ORDER TO ACCEPT WORK, ON THE OTHER HAND. 
GOVERNMENTAL IMPOSITION OF SUCH A CHOICE PUTS THE SAME KIND OF BURDEN
UPON THE FREE EXERCISE OF RELIGION AS WOULD A FINE IMPOSED AGAINST
APPELLANT FOR HER SATURDAY WORSHIP. 

NOR MAY THE SOUTH CAROLINA COURT'S CONSTRUCTION OF THE STATUTE BE
SAVED FROM CONSTITUTIONAL INFIRMITY ON THE GROUND THAT UNEMPLOYMENT
COMPENSATION BENEFITS ARE NOT APPELLANT'S "RIGHT" BUT MERELY A
"PRIVILEGE."  IT IS TOO LATE IN THE DAY TO DOUBT THAT THE LIBERTIES OF
RELIGION AND EXPRESSION MAY BE INFRINGED BY THE DENIAL OF OR PLACING OF
CONDITIONS UPON A BENEFIT OR PRIVILEGE.  (FN6)  AMERICAN COMMUNICATIONS
ASSN. V. DOUDS, 339 U.S. 382, 390; WEIMAN V. UPDEGRAFF, 344 U.S. 183,
191-192; HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, 155-156.  FOR
EXAMPLE, IN FLEMMING V. NESTOR, 363 U.S. 603, 611, THE COURT RECOGNIZED
WITH RESPECT TO FEDERAL SOCIAL SECURITY BENEFITS THAT "THE INTEREST OF
A COVERED EMPLOYEE UNDER THE ACT IS OF SUFFICIENT SUBSTANCE TO FALL
WITHIN THE PROTECTION FROM ARBITRARY GOVERNMENTAL ACTION AFFORDED BY
THE DUE PROCESS CLAUSE."  IN SPEISER V. RANDALL, 357 U.S. 513, WE
EMPHASIZED THAT CONDITIONS UPON PUBLIC BENEFITS CANNOT BE SUSTAINED IF
THEY SO OPERATE, WHATEVER THEIR PURPOSE, AS TO INHIBIT OR DETER THE
EXERCISE OF FIRST AMENDMENT FREEDOMS.  WE THERE STRUCK DOWN A CONDITION
WHICH LIMITED THE AVAILABILITY  OF A TAX EXEMPTION TO THOSE MEMBERS OF
THE EXEMPTED CLASS WHO AFFIRMED THEIR LOYALTY TO THE STATE GOVERNMENT
GRANTING THE EXEMPTION.  WHILE THE STATE WAS SURELY UNDER NO OBLIGATION
TO AFFORD SUCH AN EXEMPTION, WE HELD THAT THE IMPOSITION OF SUCH A
CONDITION UPON EVEN A GRATUITOUS BENEFIT INEVITABLY DETERRED OR
DISCOURAGED THE EXERCISE OF FIRST AMENDMENT RIGHTS OF EXPRESSION AND
THEREBY THREATENED TO "PRODUCE A RESULT WHICH THE STATE COULD NOT
COMMAND DIRECTLY."  357 U.S., AT 526.  "TO DENY AN EXEMPTION TO
CLAIMANTS WHO ENGAGE IN CERTAIN FORMS OF SPEECH IS IN EFFECT TO
PENALIZE THEM FOR SUCH SPEECH."  ID., AT 518.  LIKEWISE, TO CONDITION
THE AVAILABILITY OF BENEFITS UPON THIS APPELLANT'S WILLINGNESS TO
VIOLATE A CARDINAL PRINCIPLE OF HER RELIGIOUS FAITH EFFECTIVELY
PENALIZES THE FREE EXERCISE OF HER CONSTITUTIONAL LIBERTIES. 

SIGNIFICANTLY SOUTH CAROLINA EXPRESSLY SAVES THE SUNDAY WORSHIPPER
FROM HAVING TO MAKE THE KIND OF CHOICE WHICH WE HERE HOLD INFRINGES THE
SABBATARIAN'S RELIGIOUS LIBERTY.  WHEN IN TIMES OF "NATIONAL EMERGENCY"
THE TEXTILE PLANTS ARE AUTHORIZED BY THE STATE COMMISSIONER OF LABOR TO
OPERATE ON SUNDAY, "NO EMPLOYEE SHALL BE REQUIRED TO WORK ON SUNDAY
...  WHO IS CONSCIENTIOUSLY OPPOSED TO SUNDAY WORK; AND IF ANY EMPLOYEE
SHOULD REFUSE TO WORK ON SUNDAY ON ACCOUNT OF CONSCIENTIOUS  ...
OBJECTIONS HE OR SHE SHALL NOT JEOPARDIZE HIS OR HER SENIORITY BY SUCH
REFUSAL OR BE DISCRIMINATED AGAINST IN ANY OTHER MANNER."  S.C. CODE,
SEC. 64-4.  NO QUESTION OF THE DISQUALIFICATION OF A SUNDAY WORSHIPPER
FOR BENEFITS IS LIKELY TO ARISE, SINCE WE CANNOT SUPPOSE THAT AN
EMPLOYER WILL DISCHARGE HIM IN VIOLATION OF THIS STATUTE.  THE
UNCONSTITUTIONALITY OF THE DISQUALIFICATION OF THE SABBATARIAN IS THUS
COMPOUNDED BY THE RELIGIOUS DISCRIMINATION WHICH SOUTH CAROLINA'S
GENERAL STATUTORY SCHEME NECESSARILY EFFECTS. 

                                        III. 

WE MUST NEXT CONSIDER WHETHER SOME COMPELLING STATE INTEREST ENFORCED
IN THE ELIGIBILITY PROVISIONS OF THE SOUTH CAROLINA STATUTE JUSTIFIES
THE SUBSTANTIAL INFRINGEMENT OF APPELLANT'S FIRST AMENDMENT RIGHT.  IT
IS BASIC THAT NO SHOWING MERELY OF A RATIONAL RELATIONSHIP TO SOME
COLORABLE STATE INTEREST WOULD SUFFICE; IN THIS HIGHLY SENSITIVE
CONSTITUTIONAL AREA, "ONLY THE GRAVEST ABUSES, ENDANGERING PARAMOUNT
INTERESTS, GIVE OCCASION FOR PERMISSIBLE LIMITATION," THOMAS V.
COLLINS, 323 U.S. 516, 530.  NO SUCH ABUSE OR DANGER HAS BEEN ADVANCED
IN THE PRESENT CASE.  THE APPELLEES SUGGEST NO MORE THAN A POSSIBILITY
THAT THE FILING OF FRAUDULENT CLAIMS BY UNSCRUPULOUS CLAIMANTS FEIGNING
RELIGIOUS OBJECTIONS TO SATURDAY WORK MIGHT NOT ONLY DILUTE THE
UNEMPLOYMENT COMPENSATION FUND BUT ALSO HINDER THE SCHEDULING BY
EMPLOYERS OF NECESSARY SATURDAY WORK.  BUT THAT POSSIBILITY IS NOT
APPOSITE HERE BECAUSE NO SUCH OBJECTION APPEARS TO HAVE BEEN MADE
BEFORE THE SOUTH CAROLINA SUPREME COURT, AND WE ARE UNWILLING TO ASSESS
THE IMPORTANCE OF AN ASSERTED STATE INTEREST WITHOUT THE VIEWS OF THE
STATE COURT.  NOR, IF THE CONTENTION HAD BEEN MADE BELOW, WOULD THE
RECORD APPEAR TO SUSTAIN IT; THERE IS NO PROOF WHATEVER TO WARRANT SUCH
FEARS OF MALINGERING OR DECEIT AS THOSE WHICH THE RESPONDENTS NOW
ADVANCE.  EVEN IF CONSIDERATION OF SUCH EVIDENCE IS NOT FORECLOSED BY
THE PROHIBITION AGAINST JUDICIAL INQUIRY INTO THE TRUTH OR FALSITY OF
RELIGIOUS BELIEFS, UNITED STATES V. BALLARD, 322 U.S. 78 - A QUESTION
AS TO WHICH WE INTIMATE NO VIEW SINCE IT IS NOT BEFORE US - IT IS
HIGHLY DOUBTFUL WHETHER SUCH EVIDENCE WOULD BE SUFFICIENT TO WARRANT A
SUBSTANTIAL INFRINGEMENT OF RELIGIOUS LIBERTIES.  FOR EVEN IF THE
POSSIBILITY OF SPURIOUS CLAIMS DID THREATEN TO DILUTE THE FUND AND
DISRUPT THE SCHEDULING OF WORK, IT WOULD PLAINLY BE INCUMBENT UPON THE
APPELLEES TO DEMONSTRATE THAT NO ALTERNATIVE FORMS OF REGULATION WOULD
COMBAT SUCH ABUSES WITHOUT INFRINGING FIRST AMENDMENT RIGHTS.  (FN7)
CF. SHELTON V. TUCKER, 364 U.S. 479, 487-490; TALLEY V. CALIFORNIA, 362
U.S. 60, 64; SCHNEIDER V. STATE, 308 U.S. 147, 161; MARTIN V.
STRUTHERS, 319 U.S. 141, 144-149. 

IN THESE RESPECTS, THEN, THE STATE INTEREST ASSERTED IN THE PRESENT
CASE IS WHOLLY DISSIMILAR TO THE INTERESTS WHICH WERE FOUND TO JUSTIFY
THE LESS DIRECT BURDEN UPON RELIGIOUS PRACTICES IN BRAUNFELD V. BROWN,
SUPRA.  THE COURT RECOGNIZED THAT THE SUNDAY CLOSING LAW WHICH THAT
DECISION SUSTAINED UNDOUBTEDLY SERVED "TO MAKE THE PRACTICE OF THE
ORTHODOX JEWISH MERCHANTS'  ...  RELIGIOUS BELIEFS MORE EXPENSIVE," 366
U.S., AT 605.  BUT THE STATUTE WAS NEVERTHELESS SAVED BY A
COUNTERVAILING FACTOR WHICH FINDS NO EQUIVALENT IN THE INSTANT CASE - A
STRONG STATE INTEREST IN PROVIDING ONE UNIFORM DAY OF REST FOR ALL
WORKERS.  THAT SECULAR OBJECTIVE COULD BE ACHIEVED, THE COURT FOUND,
ONLY BE DECLARING SUNDAY TO BE THAT DAY OF REST.  REQUIRING EXEMPTIONS
FOR SABBATARIANS, WHILE THEORETICALLY POSSIBLE, APPEARED TO PRESENT AN
ADMINISTRATIVE PROBLEM OF SUCH MAGNITUDE, OR TO AFFORD THE EXEMPTED
CLASS SO GREAT A COMPETITIVE ADVANTAGE, THAT SUCH A REQUIREMENT WOULD
HAVE RENDERED THE ENTIRE STATUTORY SCHEME UNWORKABLE.  (FN8)  IN THE
PRESENT CASE NO SUCH JUSTIFICATIONS UNDERLIE THE DETERMINATION OF THE
STATE COURT THAT APPELLANT'S RELIGION MAKES HER INELIGIBLE TO RECEIVE
BENEFITS.  (FN9)

IV. 

IN HOLDING AS WE DO, PLAINLY WE ARE NOT FOSTERING THE "ESTABLISHMENT"
OF THE SEVENTH-DAY ADVENTIST RELIGION IN SOUTH CAROLINA, FOR THE
EXTENSION OF UNEMPLOYMENT BENEFITS TO SABBATARIANS IN COMMON WITH
SUNDAY WORSHIPPERS REFLECTS NOTHING MORE THAN THE GOVERNMENTAL
OBLIGATION OF NEUTRALITY IN THE FACE OF RELIGIOUS DIFFERENCES, AND DOES
NOT REPRESENT THAT INVOLVEMENT OF RELIGIOUS WITH SECULAR INSTITUTIONS
WHICH IT IS THE OBJECT OF THE ESTABLISHMENT CLAUSE TO FORESTALL.  SEE
SCHOOL DISTRICT OF ABINGTON TOWNSHIP V. SCHEMPP, ANTE, P. 203.  NOR
DOES THE RECOGNITION OF THE APPELLANT'S RIGHT TO UNEMPLOYMENT BENEFITS
UNDER THE STATE STATUTE SERVE TO ABRIDGE ANY OTHER PERSON'S RELIGIOUS
LIBERTIES.  NOR DO WE, BY OUR DECISION TODAY, DECLARE THE EXISTENCE OF
A CONSTITUTIONAL RIGHT TO UNEMPLOYMENT BENEFITS ON THE PART OF ALL
PERSONS WHOSE RELIGIOUS CONVICTIONS ARE THE CAUSE OF THEIR
UNEMPLOYMENT.  THIS IS NOT A CASE IN WHICH AN EMPLOYEE'S RELIGIOUS
CONVICTIONS SERVE TO MAKE HIM A NONPRODUCTIVE MEMBER OF SOCIETY.  SEE
NOTE 2, SUPRA.  FINALLY, NOTHING WE SAY TODAY CONSTRAINS THE STATES TO
ADOPT ANY PARTICULAR FORM OR SCHEME OF UNEMPLOYMENT COMPENSATION.  OUR
HOLDING TODAY IS ONLY THAT SOUTH CAROLINA MAY NOT CONSTITUTIONALLY
APPLY THE ELIGIBILITY PROVISIONS SO AS TO CONSTRAIN A WORKER TO ABANDON
HIS RELIGIOUS CONVICTIONS RESPECTING THE DAY OF REST.  THIS HOLDING BUT
REAFFIRMS A PRINCIPLE THAT WE ANNOUNCED A DECADE AND A HALF AGO, NAMELY
THAT NO STATE MAY "EXCLUDE INDIVIDUAL CATHOLICS, LUTHERANS,
MOHAMMEDANS, BAPTISTS, JEWS, METHODISTS, NON-BELIEVERS, PRESBYTERIANS,
OR THE MEMBERS OF ANY OTHER FAITH, BECAUSE OF THEIR FAITH, OR LACK OF
IT, FROM RECEIVING THE BENEFITS OF PUBLIC WELFARE LEGISLATION." 
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 16. 

IN VIEW OF THE RESULT WE HAVE REACHED UNDER THE FIRST AND FOURTEENTH
AMENDMENTS' GUARANTEE OF FREE EXERCISE OF RELIGION, WE HAVE NO OCCASION
TO CONSIDER APPELLANT'S CLAIM THAT THE DENIAL OF BENEFITS ALSO DEPRIVED
HER OF THE EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH
AMENDMENT. 

THE JUDGMENT OF THE SOUTH CAROLINA SUPREME COURT IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  APPELLANT BECAME A MEMBER OF THE SEVENTH-DAY ADVENTIST CHURCH IN
1957, AT A TIME WHEN HER EMPLOYER, A TEXTILE-MILL OPERATOR, PERMITTED
HER TO WORK A FIVE-DAY WEEK.  IT WAS NOT UNTIL 1959 THAT THE WORK WEEK
CHANGED TO SIX DAYS, INCLUDING SATURDAY, FOR ALL THREE SHIFTS IN THE
EMPLOYER'S MILL.  NO QUESTION HAS BEEN RAISED IN THIS CASE CONCERNING
THE SINCERITY OF APPELLANT'S RELIGIOUS BELIEFS.  NOR IS THERE ANY DOUBT
THAT THE PROHIBITION AGAINST SATURDAY LABOR IS A BASIC TENET OF THE
SEVENTH-DAY ADVENTIST CREED, BASED UPON THAT RELIGION'S INTERPRETATION
OF THE HOLY BIBLE. 

FN2  AFTER HER DISCHARGE, APPELLANT SOUGHT EMPLOYMENT WITH THREE
OTHER MILLS IN THE SPARTANBURG AREA, BUT FOUND NO SUITABLE FIVE-DAY
WORK AVAILABLE AT ANY OF THE MILLS.  IN FILING HER CLAIM WITH THE
COMMISSION, SHE EXPRESSED A WILLINGNESS TO ACCEPT EMPLOYMENT AT OTHER
MILLS, OR EVEN IN ANOTHER INDUSTRY, SO LONG AS SATURDAY WORK WAS NOT
REQUIRED.  THE RECORD INDICATES THAT OF THE 150 OR MORE SEVENTH-DAY
ADVENTISTS IN THE SPARTANBURG AREA, ONLY APPELLANT AND ONE OTHER HAVE
BEEN UNABLE TO FIND SUITABLE NON-SATURDAY EMPLOYMENT. 

FN3  THE PERTINENT SECTIONS OF THE SOUTH CAROLINA UNEMPLOYMENT
COMPENSATION ACT (S.C.  CODE, TIT. 68, SECS. 68-1 TO 68-404) ARE AS
FOLLOWS: 

"SEC. 68-113.  CONDITIONS OF ELIGIBILITY FOR BENEFITS.  - AN
UNEMPLOYED INSURED WORKER SHALL BE ELIGIBLE TO RECEIVE BENEFITS WITH
RESPECT TO ANY WEEK ONLY IF THE COMMISSION FINDS THAT:  ...  . 

"(3)  HE IS ABLE TO WORK AND IS AVAILABLE FOR WORK, BUT NO CLAIMANT
SHALL BE CONSIDERED AVAILABLE FOR WORK IF ENGAGED IN SELF-EMPLOYMENT OF
SUCH NATURE AS TO RETURN OR PROMISE RENUMERATION IN EXCESS OF THE
WEEKLY BENEFIT AMOUNTS HE WOULD HAVE RECEIVED IF OTHERWISE UNEMPLOYED
OVER SUCH PERIOD OF TIME  ...  . 

"SEC. 68-114.  DISQUALIFICATION FOR BENEFITS.  - ANY INSURED WORKER
SHALL BE INELIGIBLE FOR BENEFITS:  ...  . 

"(2)  DISCHARGE FOR MISCONDUCT.  - IF THE COMMISSION FINDS THAT HE
HAS BEEN DISCHARGED FOR MISCONDUCT CONNECTED WITH HIS MOST RECENT WORK
PRIOR TO FILING A REQUEST FOR DETERMINATION OF INSURED STATUS OR A
REQUEST FOR INITIATION OF A CLAIM SERIES WITHIN AN ESTABLISHED BENEFIT
YEAR, WITH SUCH INELIGIBILITY BEGINNING WITH THE EFFECTIVE DATE OF SUCH
REQUEST, AND CONTINUING NOT LESS THAN FIVE NOR MORE THAN THE NEXT
TWENTY-TWO CONSECUTIVE WEEKS (IN ADDITION TO THE WAITING PERIOD), AS
DETERMINED BY THE COMMISSION IN EACH CASE ACCORDING TO THE SERIOUSNESS
OF THE MISCONDUCT  ...  . 

"(3)  FAILURE TO ACCEPT WORK.  - (A) IF THE COMMISSION FINDS THAT HE
HAS FAILED, WITHOUT GOOD CAUSE, (I) EITHER TO APPLY FOR AVAILABLE
SUITABLE WORK, WHEN SO DIRECTED BY THE EMPLOYMENT OFFICE OR THE
COMMISSION, (II) TO ACCEPT AVAILABLE SUITABLE WORK WHEN OFFERED HIM BY
THE EMPLOYMENT OFFICER OR THE EMPLOYER OF (III) TO RETURN TO HIS
CUSTOMARY SELF-EMPLOYMENT (IF ANY) WHEN SO DIRECTED BY THE COMMISSION,
SUCH INELIGIBILITY SHALL CONTINUE FOR A PERIOD OF FIVE WEEKS (THE WEEK
IN WHICH SUCH FAILURE OCCURRED AND THE NEXT FOUR WEEKS IN ADDITION TO
THE WAITING PERIOD) AS DETERMINED BY THE COMMISSION ACCORDING TO THE
CIRCUMSTANCES IN EACH CASE  ...  . 

"(B)  IN DETERMINING WHETHER OR NOT ANY WORK IS SUITABLE FOR AN
INDIVIDUAL, THE COMMISSION SHALL CONSIDER THE DEGREE OF RISK INVOLVED
TO HIS HEALTH, SAFETY AND MORALS, HIS PHYSICAL FITNESS AND PRIOR
TRAINING, HIS EXPERIENCE AND PRIOR EARNINGS, HIS LENGTH OF UNEMPLOYMENT
AND PROSPECTS FOR SECURING LOCAL WORK IN HIS CUSTOMARY OCCUPATION AND
THE DISTANCE OF THE AVAILABLE WORK FROM HIS RESIDENCE." 

FN4  IT HAS BEEN SUGGESTED THAT APPELLANT IS NOT WITHIN THE CLASS
ENTITLED TO BENEFITS UNDER THE SOUTH CAROLINA STATUTE BECAUSE HER
UNEMPLOYMENT DID NOT RESULT FROM DISCHARGE OR LAYOFF DUE TO LACK OF
WORK.  IT IS TRUE THAT UNAVAILABILITY FOR WORK FOR SOME PERSONAL
REASONS NOT HAVING TO DO WITH MATTERS OF CONSCIENCE OR RELIGION HAS
BEEN HELD TO BE A BASIS OF DISQUALIFICATION FOR BENEFITS.  SEE, E.G.,
JUDSON MILLS V. SOUTH CAROLINA UNEMPLOYMENT COMPENSATION COMM'N, 204
S.C. 37, 28 S.E.2D 535; STONE MFG. CO. V. SOUTH CAROLINA EMPLOYMENT
SECURITY COMM'N, 219 S.C. 239, 64 S.E.2D 644.  BUT APPELLANT CLAIMS
THAT THE FREE EXERCISE CLAUSE PREVENTS THE STATE FROM BASING THE DENIAL
OF BENEFITS UPON THE "PERSONAL REASON" SHE GIVES FOR NOT WORKING ON
SATURDAY.  WHERE THE CONSEQUENCE OF DISQUALIFICATION SO DIRECTLY
AFFECTS FIRST AMENDMENT RIGHTS, SURELY WE SHOULD NOT CONCLUDE THAT
EVERY "PERSONAL REASON" IS A BASIS FOR DISQUALIFICATION IN THE ABSENCE
OF EXPLICIT LANGUAGE TO THAT EFFECT IN THE STATUTE OR DECISIONS OF THE
SOUTH CAROLINA SUPREME COURT.  NOTHING WE HAVE FOUND IN THE STATUTE OR
IN THE CITED DECISIONS, CF. LEE V. SPARTAN MILLS, 7 CCH UNEMPLOYMENT
INS. REP. S.C. PARA. 8156 (C.P. 1944), AND CERTAINLY NOTHING IN THE
SOUTH CAROLINA COURT'S OPINION IN THIS CASE SO CONSTRUES THE STATUTE. 
INDEED, THE CONTRARY SEEMS TO HAVE BEEN THAT COURT'S BASIC ASSUMPTION,
FOR IF THE ELIGIBILITY PROVISIONS WERE THUS LIMITED, IT WOULD HAVE BEEN
UNNECESSARY FOR THE COURT TO HAVE DECIDED APPELLANT'S CONSTITUTIONAL
CHALLENGE TO THE APPLICATION OF THE STATUTE UNDER THE FREE EXERCISE
CLAUSE. 

LIKEWISE, THE DECISION OF THE STATE SUPREME COURT DOES NOT REST UPON
A FINDING THAT APPELLANT WAS DISQUALIFIED FOR BENEFITS BECAUSE SHE HAD
BEEN "DISCHARGED FOR MISCONDUCT" - BY REASON OF HER SATURDAY ABSENCES -
WITHIN THE MEANING OF SEC. 68-114(2).  THAT GROUND WAS NOT ADOPTED BY
THE SOUTH CAROLINA SUPREME COURT, AND THE APPELLEES DO NOT URGE IN THIS
COURT THAT THE DISQUALIFICATION RESTS UPON THAT GROUND. 

FN5  IN A CLOSELY ANALOGOUS CONTEXT, THIS COURT SAID: 

"  ...  THE FACT THAT NO DIRECT RESTRAINT OR PUNISHMENT IS IMPOSED
UPON SPEECH OR ASSEMBLY DOES NOT DETERMINE THE FREE SPEECH QUESTION. 
UNDER SOME CIRCUMSTANCES, INDIRECT 'DISCOURAGEMENTS' UNDOUBTEDLY HAVE
THE SAME COERCIVE EFFECT UPON THE EXERCISE OF FIRST AMENDMENT RIGHTS AS
IMPRISONMENT, FINES, INJUNCTIONS OR TAXES.  A REQUIREMENT THAT
ADHERENTS OF PARTICULAR RELIGIOUS FAITHS OR POLITICAL PARTIES WEAR
IDENTIFYING ARM-BANDS, FOR EXAMPLE, IS OBVIOUSLY OF THIS NATURE." 
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 402.  CF. SMITH
V. CALIFORNIA, 361 U.S. 147, 153-155. 

FN6  SEE FOR EXAMPLES OF CONDITIONS AND QUALIFICATIONS UPON
GOVERNMENTAL PRIVILEGES AND BENEFITS WHICH HAVE BEEN INVALIDATED
BECAUSE OF THEIR TENDENCY TO INHIBIT CONSTITUTIONALLY PROTECTED
ACTIVITY, STEINBERG V. UNITED STATES, 143 CT. CL. 1, 163 F. SUPP. 590;
SYREK V. CALIFORNIA UNEMPLOYMENT INS. BOARD, 54 CAL. 2D 519, 354 P.2D
625; FINO V. MARYLAND EMPLOYMENT SECURITY BOARD, 218 MD. 504, 147 A.2D
738; CHICAGO HOUSING AUTHORITY V. BLACKMAN, 4 ILL. 2D 319, 122 N.E.2D
522; HOUSING AUTHORITY OF LOS ANGELES V. CORDOVA, 130 CAL. APP. 2D 883,
279 P.2D 215; LAWSON V. HOUSING AUTHORITY OF MILWAUKEE, 270 WIS. 269,
70 N.W.2D 605; DANSKIN V. SAN DIEGO UNIFIED SCHOOL DISTRICT, 28 CAL. 2D
536, 171 P.2D 885; AMERICAN CIVIL LIBERTIES UNION V. BOARD OF
EDUCATION, 55 CAL. 2D 167, 359 P.2D 45; CF. CITY OF BALTIMORE V. A.S.
ABELL CO., 218 MD. 273, 145 A.2D 111.  SEE ALSO WILLCOX, INVASIONS OF
THE FIRST AMENDMENT THROUGH CONDITIONED PUBLIC SPENDING, 41 CORNELL
L.Q. 12 (1955); EMERSON, TOWARD A GENERAL THEORY OF THE FIRST
AMENDMENT, 72 YALE L.J. 877, 942-943 (1963); 36 N.Y.U.L. REV. 1052
(1961); 9 KAN. L. REV. 346 (1961); NOTE, UNCONSTITUTIONAL CONDITIONS,
73 HARV. L. REV. 1595, 1599-1602 (1960). 

FN7  WE NOTE THAT BEFORE THE INSTANT DECISION, STATE SUPREME COURTS
HAD, WITHOUT EXCEPTION, GRANTED BENEFITS TO PERSONS WHO WERE PHYSICALLY
AVAILABLE FOR WORK BUT UNABLE TO FIND SUITABLE EMPLOYMENT SOLELY
BECAUSE OF A RELIGIOUS PROHIBITION AGAINST SATURDAY WORK.  E.G., IN RE
MILLER, 243 N.C. 509, 91 S.E.2D 241; SWENSON V. MICHIGAN EMPLOYMENT
SECURITY COMM'N, 340 MICH. 430, 65 N.W.2D 709; TARY V. BOARD OF REVEIW,
161 OHIO ST. 251, 119 N.E.2D 56.  CF. KUT V. ALBERS SUPER MARKETS,
INC., 146 OHIO ST. 522, 66 N.E.2D 643, APPEAL DISMISSED SUB NOM. KUT V.
BUREAU OF UNEMPLOYMENT COMPENSATION, 329 U.S. 669.  ONE AUTHOR HAS
OBSERVED, "THE LAW WAS SETTLED THAT CONSCIENTIOUS OBJECTIONS TO WORK ON
THE SABBATH MADE SUCH WORK UNSUITABLE AND THAT SUCH OBJECTORS WERE
NEVERTHELESS AVAILABLE FOR WORK  ...  .  A CONTRARY OPINION WOULD MAKE
THE UNEMPLOYMENT COMPENSATION LAW UNCONSTITUTIONAL, AS A VIOLATION OF
FREEDOM OF RELIGION.  RELIGIOUS CONVICTIONS, STRONGLY HELD, ARE SO
IMPELLING AS TO CONSTITUTE GOOD CAUSE FOR REFUSAL.  SINCE AVAILABILITY
REFERS TO SUITABLE WORK, RELIGIOUS OBSERVERS WERE NOT UNAVAILABLE
BECAUSE THEY EXCLUDED SABBATH WORK."  ALTMAN, AVAILABILITY FOR WORK:  A
STUDY IN UNEMPLOYMENT COMPENSATION (1950), 187.  SEE ALSO SANDERS,
DISQUALIFICATION FOR UNEMPLOYMENT INSURANCE, 8 VAND.  L. REV. 307, 327
328 (1955); 34 N.C.L. REV. 591 (1956); CF. FREEMAN, ABLE TO WORK AND
AVAILABLE FOR WORK, 55 YALE L.J. 123, 131 (1945).  OF THE 47 STATES
WHICH HAVE ELIGIBILITY PROVISIONS SIMILAR TO THOSE OF THE SOUTH
CAROLINA STATUTE, ONLY 28 APPEAR TO HAVE GIVEN ADMINISTRATIVE RULINGS
CONCERNING THE ELIGIBILITY OF PERSONS WHOSE RELIGIOUS CONVICTIONS
PREVENTED THEM FROM ACCEPTING AVAILABLE WORK.  TWENTY-TWO OF THOSE
STATES HAVE HELD SUCH PERSONS ENTITLED TO BENEFITS, ALTHOUGH APPARENTLY
ONLY ONE SUCH DECISION RESTS EXCLUSIVELY UPON THE FEDERAL
CONSTITUTIONAL GROUND WHICH CONSTITUTES THE BASIS OF OUR DECISION.  SEE
111 U. OF PA. L. REV. 253, AND N. 3 (1962); 34 N.C.L. REV. 591, 602, N.
60 (1956). 

FN8  SEE NOTE, STATE SUNDAY LAWS AND THE RELIGIOUS GUARANTEES OF THE
FEDERAL CONSTITUTION, 73 HARV. L. REV. 729, 741-745 (1960). 

FN9  THESE CONSIDERATIONS ALSO DISTINGUISH THE QUITE DIFFERENT CASE
OF FLEMMING V. NESTOR, SUPRA, UPON WHICH APPELLEES RELY.  IN THAT CASE
THE COURT FOUND THAT THE COMPELLING FEDERAL INTERESTS WHICH UNDERLAY
THE DECISION OF CONGRESS TO IMPOSE SUCH A DISQUALIFICATION JUSTIFIED
WHATEVER EFFECT THE DENIAL OF SOCIAL SECURITY BENEFITS MAY HAVE HAD
UPON THE DISQUALIFIED CLASS.  SEE 363 U.S., AT 612.  AND COMPARE
TORCASO V. WATKINS, SUPRA, IN WHICH AN UNDOUBTED STATE INTEREST IN
ENSURING THE VERACITY AND TRUSTWORTHINESS OF NOTARIES PUBLIC WAS HELD
INSUFFICIENT TO JUSTIFY THE SUBSTANTIAL INFRINGEMENT UPON THE RELIGIOUS
FREEDOM OF APPLICANTS FOR THAT POSITION WHICH RESULTED FROM A REQUIRED
OATH OF BELIEF IN GOD.  SEE 74 HARV. L. REV.  611, 612-613 (1961); 109
U. OF PA. L. REV. 611, 614-616 (1961). 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE CASE WE HAVE FOR DECISION SEEMS TO ME TO BE OF SMALL DIMENSIONS,
THOUGH PROFOUNDLY IMPORTANT.  THE QUESTION IS WHETHER THE SOUTH
CAROLINA LAW WHICH DENIES UNEMPLOYMENT COMPENSATION TO A SEVENTH-DAY
ADVENTIST, WHO, BECAUSE OF HER RELIGION, HAS DECLINED TO WORK ON HER
SABBATH, IS A LAW "PROHIBITING THE FREE EXERCISE" OF RELIGION AS THOSE
WORDS ARE USED IN THE FIRST AMENDMENT.  IT SEEMS OBVIOUS TO ME THAT
THIS LAW DOES RUN AFOUL OF THAT CLAUSE. 

RELIGIOUS SCRUPLES OF MOSLEMS REQUIRE THEM TO ATTEND A MOSQUE ON
FRIDAY AND TO PRAY FIVE TIMES DAILY.  (FN1)  RELIGIOUS SCRUPLES OF A
SIKH REQUIRE HIM TO CARRY A REGULAR OR A SYMBOLIC SWORD.  REX V. SINGH,
39 A.I.R. 53 (ALLAHABAD, 1952).  RELIGIOUS SCRUPLES OF A JEHOVAH'S
WITNESS TEACH HIM TO BE A COLPORTEUR, GOING FROM DOOR TO DOOR, FROM
TOWN TO TOWN, DISTRIBUTING HIS RELIGIOUS PAMPHLETS.  SEE MURDOCK V.
PENNSYLVANIA, 319 U.S. 105.  RELIGIOUS SCRUPLES OF A QUAKER COMPEL HIM
TO REFRAIN FROM SWEARING AND TO AFFIRM INSTEAD.  SEE KING V. FEARSON,
FED. CAS. NO. 7,790, 14 FED. CAS. 520; 1 U.S.C. SEC. 1; FEDERAL RULES
OF CIVIL PROCEDURE, RULE 43(D); UNITED STATES V. SCHWIMMER, 279 U.S.
644, 655 (DISSENTING OPINION).  RELIGIOUS SCRUPLES OF A BUDDHIST MAY
REQUIRE HIM TO REFRAIN FROM PARTAKING OF ANY FLESH, EVEN OF FISH. 
(FN2) 

THE EXAMPLES COULD BE MULTIPLIED, INCLUDING THOSE OF THE SEVENTH-DAY
ADVENTIST WHOSE SABBATH IS SATURDAY AND WHO IS ADVISED NOT TO EAT SOME
MEATS.  (FN3) 

THESE SUFFICE, HOWEVER, TO SHOW THAT MANY PEOPLE HOLD BELIEFS ALIEN
TO THE MAJORITY OF OUR SOCIETY - BELIEFS THAT ARE PROTECTED BY THE
FIRST AMENDMENT BUT WHICH COULD EASILY BE TROD UPON UNDER THE GUISE OF
"POLICE" OR "HEALTH" REGULATIONS REFLECTING THE MAJORITY'S VIEWS. 

SOME HAVE THOUGHT THAT A MAJORITY OF A COMMUNITY CAN, THROUGH STATE
ACTION, COMPEL A MINORITY TO OBSERVE THEIR PARTICULAR RELIGIOUS
SCRUPLES SO LONG AS THE MAJORITY'S RULE CAN BE SAID TO PERFORM SOME
VALID SECURAL FUNCTION.  THAT WAS THE ESSENCE OF THE COURT'S DECISION
IN THE SUNDAY BLUE LAW CASES (GALLAGHER V. CROWN KOSHER MARKET, 366
U.S. 617; BRAUNFIELD V. BROWN, 366 U.S. 599; MCGOWAN V. MARYLAND, 366
U.S. 420), A RULING FROM WHICH I THEN DISSENTED (MCGOWAN V. MARYLAND,
SUPRA, PP. 575-576) AND STILL DISSENT.  SEE ARLAN'S DEPT. STORE V.
KENTUCKY, 371 U.S. 218.    THAT RULING OF THE COURT TRAVELS PART OF THE
DISTANCE THAT SOUTH CAROLINA ASKS US TO GO NOW.  SHE ASKS US TO HOLD
THAT WHEN IT COMES TO A DAY OF REST A SABBATARIAN MUST CONFORM WITH THE
SCRUPLES OF THE MAJORITY IN ORDER TO OBTAIN UNEMPLOYMENT BENEFITS. 

THE RESULT TURNS NOT ON THE DEGREE OF INJURY, WHICH MAY INDEED BE
NONEXISTENT BY ORDINARY STANDARDS.  THE HARM IS THE INTERFERENCE WITH
THE INDIVIDUAL'S SCRUPLES OR CONSCIENCE - AN IMPORTANT AREA OF PRIVACY
WHICH THE FIRST AMENDMENT FENCES OFF FROM GOVERNMENT.  THE INTERFERENCE
HERE IS AS PLAIN AS IT IS IN SOVIET RUSSIA, WHERE A CHURCHGOER IS GIVEN
A SECOND-CLASS CITIZENSHIP, RESULTING IN HARM THOUGH PERHAPS NOT IN
MEASURABLE DAMAGES. 

THIS CASE IS RESOLVABLE NOT IN TERMS OF WHAT AN INDIVIDUAL CAN DEMAND
OF GOVERNMENT, BUT SOLELY IN TERMS OF WHAT GOVERNMENT MAY NOT DO TO AN
INDIVIDUAL IN VIOLATION OF HIS RELIGIOUS SCRUPLES.  THE FACT THAT
GOVERNMENT CANNOT EXACT FROM ME A SURRENDER OF ONE IOTA OF MY RELIGIOUS
SCRUPLES DOES NOT, OF COURSE, MEAN THAT I CAN DEMAND OF GOVERNMENT A
SUM OF MONEY, THE BETTER TO EXERCISE THEM.  FOR THE FREE EXERCISE
CLAUSE IS WRITTEN IN TERMS OF WHAT THE GOVERNMENT CANNOT DO TO THE
INDIVIDUAL, NOT IN TERMS OF WHAT THE INDIVIDUAL CAN EXACT FROM THE
GOVERNMENT. 

THOSE CONSIDERATIONS, HOWEVER, ARE NOT RELEVANT HERE.  IF APPELLANT
IS OTHERWISE QUALIFIED FOR UNEMPLOYMENT BENEFITS, PAYMENTS WILL BE MADE
TO HER NOT AS A SEVENTH-DAY ADVENTIST, BUT AS AN UNEMPLOYED WORKER. 
CONCEIVABLY THESE PAYMENTS WILL INDIRECTLY BENEFIT HER CHURCH, BUT NO
MORE SO THAN DOES THE SALARY OF ANY PUBLIC EMPLOYEE.  THUS, THIS CASE
DOES NOT INVOLVE THE PROBLEMS OF DIRECT OR INDIRECT STATE ASSISTANCE TO
A RELIGIOUS ORGANIZATION - MATTERS RELEVANT TO THE ESTABLISHMENT
CLAUSE, NOT IN ISSUE HERE. 

FN1  SEE SHORTER ENCYCLOPAEDIA OF ISLAM (CORNELL PRESS, 1953), 336,
493. 

FN2  SEE NARASU, THE ESSENCE OF BUDDHISM (3D ED. 1948), 52-55; 6
ENCYCLOPAEDIA OR RELIGION AND ETHICS (1913), 63-65. 

FN3  SEE SEVENTH-DAY ADVENTISTS ANSWER QUESTIONS ON DOCTRINE (1957),
149-153, 622-624; MITCHELL, SEVENTH-DAY ADVENTISTS (1ST ED. 1958), 127,
176-178. 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

ALTHOUGH FULLY AGREEING WITH THE RESULT WHICH THE COURT REACHES IN
THIS CASE, I CANNOT JOIN THE COURT'S OPINION.  THIS CASE PRESENTS A
DOUBLE-BARRELED DILEMMA, WHICH IN ALL CANDOR I THINK THE COURT'S
OPINION HAS NOT SUCCEEDED IN PAPERING OVER.  THE DELIMMA OUGHT TO BE
RESOLVED. 

                                          I. 

TWENTY-THREE YEARS AGO IN CANTWELL V. CONNECTICUT, 310 U.S. 296, 303,
THE COURT SAID THAT BOTH THE ESTABLISHMENT CLAUSE AND THE FREE EXERCISE
CLAUSE OF THE FIRST AMENDMENT WERE MADE WHOLLY APPLICABLE TO THE STATES
BY THE FOURTEENTH AMENDMENT.  IN THE INTERVENING YEARS SEVERAL CASES
INVOLVING CLAIMS OF THE STATE ABRIDGMENT OF INDIVIDUAL RELIGIOUS
FREEDOM HAVE BEEN DECIDED HERE - MOST RECENTLY BRAUNFELD V. BROWN, 366
U.S. 599, AND TORCASO V. WATKINS, 367 U.S. 488.  DURING THE SAME PERIOD
"CASES DEALING WITH THE SPECIFIC PROBLEMS ARISING UNDER THE
'ESTABLISHMENT' CLAUSE WHICH HAVE REACHED THIS COURT ARE FEW IN
NUMBER."  (FN1)  THE MOST RECENT ARE LAST TERM'S ENGEL V. VITALE, 370
U.S. 421, AND THIS TERM'S SCHEMPP AND MURRAY CASES, ANTE, P. 203. 

I AM CONVINCED THAT NO LIBERTY IS MORE ESSENTIAL TO THE CONTINUED
VITALITY OF THE FREE SOCIETY WHICH OUR CONSTITUTION GUARANTEES THAN IS
THE RELIGIOUS LIBERTY PROTECTED BY THE FREE EXERCISE CLAUSE EXPLICIT IN
THE FIRST AMENDMENT AND IMBEDDED IN THE FOURTEENTH.  AND I REGRET THAT
ON OCCASION, AND SPECIFICALLY IN BRAUNFELD V. BROWN, SUPRA, THE COURT
HAS SHOWN WHAT HAS SEEMED TO ME A DISTRESSING INSENSITIVITY TO THE
APPROPRIATE DEMANDS OF THIS CONSTITUTIONAL GUARANTEE.  BY CONTRAST I
THINK THAT THE COURT'S APPROACH TO THE ESTABLISHMENT CLAUSE HAS ON
OCCASION AND SPECIFICALLY IN ENGEL, SCHEMPP AND MURRAY, BEEN NOT ONLY
INSENSITIVE, BUT POSITIVELY WOODEN, AND THAT THE COURT HAS ACCORDED TO
THE ESTABLISHMENT CLAUSE A MEANING WHICH NEITHER THE WORDS, THE
HISTORY, NOR THE INTENTION OF THE AUTHORS OF THAT SPECIFIC
CONSTITUTIONAL PROVISION EVEN REMOTELY SUGGESTS. 

BUT MY VIEWS AS TO THE CORRECTNESS OF THE COURT'S DECISIONS IN THESE
CASES ARE BESIDE THE POINT HERE.  THE POINT IS THAT THE DECISIONS ARE
ON THE BOOKS.  AND THE RESULT IS THAT THERE ARE MANY SITUATIONS WHERE
LEGITIMATE CLAIMS UNDER THE FREE EXERCISE CLAUSE WILL RUN INTO HEAD-ON
COLLISION WITH THE COURT'S INSENSITIVE AND STERILE CONSTRUCTION OF THE
ESTABLISHMENT CLAUSE.  (FN2)  THE CONTROVERSY NOW BEFORE US IS CLEARLY
SUCH A CASE. 

BECAUSE THE APPELLANT REFUSES TO ACCEPT AVAILABLE JOBS WHICH WOULD
REQUIRE HER TO WORK ON SATURDAYS, SOUTH CAROLINA HAS DECLINED TO PAY
UNEMPLOYMENT COMPENSATION BENEFITS TO HER.  HER REFUSAL TO WORK ON
SATURDAYS IS BASED ON THE TENETS OF HER RELIGIOUS FAITH.  THE COURT
SAYS THAT SOUTH CAROLINA CANNOT UNDER THESE CIRCUMSTANCES DECLARE HER
TO BE NOT "AVAILABLE FOR WORK" WITHIN THE MEANING OF ITS STATUTE
BECAUSE TO DO SO WOULD VIOLATE HER CONSTITUTIONAL RIGHT TO THE FREE
EXERCISE OF HER RELIGION. 

YET WHAT THIS COURT HAS SAID ABOUT THE ESTABLISHMENT CLAUSE MUST
INEVITABLY LEAD TO A DIAMETRICALLY OPPOSITE RESULT.  IF THE APPELLANT'S
REFUSAL TO WORK ON SATURDAYS WERE BASED ON INDOLENCE, OR ON A
COMPULSIVE DESIRE TO WATCH THE SATURDAY TELEVISION PROGRAMS, NO ONE
WOULD SAY THAT SOUTH CAROLINA COULD NOT HOLD THAT SHE WAS NOT
"AVAILABLE FOR WORK" WITHIN THE MEANING OF ITS STATUTE.  THAT BEING SO,
THE ESTABLISHMENT CLAUSE AS CONSTRUED BY THIS COURT NOT ONLY PERMITS
BUT AFFIRMATIVELY REQUIRES SOUTH CAROLINA EQUALLY TO DENY THE
APPELLANT'S CLAIM FOR UNEMPLOYMENT COMPENSATION WHEN HER REFUSAL TO
WORK ON SATURDAYS IS BASED UPON HER RELIGIOUS CREED.  FOR, AS SAID IN
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 11, THE ESTABLISHMENT CLAUSE
BESPEAKS "A GOVERNMENT ...  STRIPPED OF ALL POWER  ...  TO SUPPORT, OR
OTHERWISE TO ASSIST ANY OR ALL RELIGIONS  ...  ," AND NO STATE "CAN
PASS LAWS WHICH AID ONE RELIGION  ...  ."  ID., AT 15.  IN MR. JUSTICE
RUTLEDGE'S WORDS, ADOPTED BY THE COURT TODAY IN SCHEMPP, ANTE, P. 217,
THE ESTABLISHMENT CLAUSE FORBIDS "EVERY FORM OF PUBLIC AID OR SUPPORT
FOR RELIGION."  330 U.S., AT 32.  IN THE WORDS OF THE COURT IN ENGEL V.
VITALE, 370 U.S., AT 431, REAFFIRMED TODAY IN THE SCHEMPP CASE, ANTE,
P. 221, THE ESTABLISHMENT CLAUSE FORBIDS THE "FINANCIAL SUPPORT OF
GOVERNMENT" TO BE "PLACED BEHIND A PARTICULAR RELIGIOUS BELIEF." 

TO REQUIRE SOUTH CAROLINA TO SO ADMINISTER ITS LAWS AS TO PAY PUBLIC
MONEY TO THE APPELLANT UNDER THE CIRCUMSTANCES OF THIS CASE IS THUS
CLEARLY TO REQUIRE THE STATE TO VIOLATE THE ESTABLISHMENT CLAUSE AS
CONSTRUED BY THIS COURT.  THIS POSES NO PROBLEM FOR ME, BECAUSE I THINK
THE COURT'S MECHANISTIC CONCEPT OF THE ESTABLISHMENT CLAUSE IS
HISTORICALLY UNSOUND AND CONSTITUTIONALLY WRONG.  I THINK THE PROCESS
OF CONSTITUTIONAL DECISION IN THE AREA OF THE RELATIONSHIPS BETWEEN
GOVERNMENT AND RELIGION DEMANDS CONSIDERABLY MORE THAN THE INVOCATION
OF BROAD-BRUSHED RHETORIC OF THE KIND I HAVE QUOTED.  AND I THINK THAT
THE GUARANTEE OF RELIGIOUS LIBERTY EMBODIED IN THE FREE EXERCISE CLAUSE
AFFIRMATIVELY REQUIRES GOVERNMENT TO CREATE AN ATMOSPHERE OF
HOSPITALITY AND ACCOMODATION TO INDIVIDUAL BELIEF OR DISBELIEF.  IN
SHORT, I THINK OUR CONSTITUTION COMMANDS THE POSITIVE PROTECTION BY
GOVERNMENT OF RELIGIOUS FREEDOM - NOT ONLY FROM A MINORITY, HOWEVER
SMALL - NOT ONLY FOR THE MAJORITY, HOWEVER LARGE - BUT FOR EACH OF US. 

SOUTH CAROLINA COULD DENY UNEMPLOYMENT BENEFITS TO A MOTHER
UNAVAILABLE FOR WORK ON SATURDAYS BECAUSE SHE WAS UNABLE TO GET A
BABYSITTER.  (FN3)  THUS, WE DO NOT HAVE BEFORE US A SITUATION WHERE A
STATE PROVIDES UNEMPLOYMENT COMPENSATION GENERALLY, AND SINGLES OUT FOR
DISQUALIFICATION ONLY THOSE PERSONS WHO ARE UNAVAILABLE FOR WORK ON
RELIGIOUS GROUNDS.  THIS IS NOT, IN SHORT, A SCHEME WHICH OPERATES SO
AS TO DISCRIMINATE AGAINST RELIGION AS SUCH.  BUT THE COURT
NEVERTHELESS HOLDS THAT THE STATE MUST PREFER A RELIGIOUS OVER A
SECULAR GROUND FOR BEING UNAVAILABLE FOR WORK - THAT STATE FINANCIAL
SUPPORT OF THE APPELLANT'S RELIGION IS CONSTITUTIONALLY REQUIRED TO
CARRY OUT "THE GOVERNMENTAL OBLIGATION OF NEUTRALITY IN THE FACE OF
RELIGIOUS DIFFERENCES  ...  ." 

YET IN CASES DECIDED UNDER THE ESTABLISHMENT CLAUSE THE COURT HAS
DECREED OTHERWISE.  IT HAS DECREED THAT GOVERNMENT MUST BLIND ITSELF TO
THE DIFFERING RELIGIOUS BELIEFS AND TRADITIONS OF THE PEOPLE.  WITH ALL
RESPECT, I THINK IT IS THE COURT'S DUTY TO FACE UP TO THE DILEMMA POSED
BY THE CONFLICT BETWEEN THE FREE EXERCISE CLAUSE OF THE CONSTITUTION
AND THE ESTABLISHMENT CLAUSE AS INTERPRETED BY THE COURT.  IT IS A
DUTY, I SUBMIT, WHICH WE OWE TO THE PEOPLE, THE STATES, AND THE NATION,
AND A DUTY WHICH WE OWE TO OURSELVES.  FOR SO LONG AS THE RESOUNDING
BUT FALLACIOUS FUNDAMENTALIST RHETORIC OF SOME OF OUR ESTABLISHMENT
CLAUSE OPINIONS REMAINS ON OUR BOOKS, TO BE DISREGARDED AT WILL AS IN
THE PRESENT CASE, OR TO BE UNDISCRIMINATINGLY INVOKED AS IN THE SCHEMPP
CASE, ANTE, P. 203, SO LONG WILL THE POSSIBILITY OF CONSISTENT AND
PERCEPTIVE DECISION IN THIS MOST DIFFICULT AND DELICATE AREA OF
CONSTITUTIONAL LAW BE IMPEDED AND IMPAIRED.  AND SO LONG, I FEAR, WILL
THE GUARANTEE OF TRUE RELIGIOUS FREEDOM IN OUR PLURALISTIC SOCIETY BE
UNCERTAIN AND INSECURE. 

                                        II. 

MY SECOND DIFFERENCE WITH THE COURT'S OPINION IS THAT I CANNOT AGREE
THAT TODAY'S DECISION CAN STAND CONSISTENTLY WITH BRAUNFELD V. BROWN,
SUPRA.  THE COURT SAYS THAT THERE WAS A "LESS DIRECT BURDEN UPON
RELIGIOUS PRACTICES" IN THAT CASE THAN IN THIS.  WITH ALL RESPECT, I
THINK THE COURT IS MISTAKEN, SIMPLY AS A MATTER OF FACT.  THE BRAUNFELD
CASE INVOLVED A STATE CRIMINAL STATUTE.  THE UNDISPUTED EFFECT OF THAT
STATUTE, AS POINTED OUT BY MR. JUSTICE BRENNAN IN HIS DISSENTING
OPINION IN THAT CASE, WAS THAT "'PLAINTIFF, ABRAHAM BRAUNFELD, WILL BE
UNABLE TO CONTINUE IN HIS BUSINESS IF HE MAY NOT STAY OPEN ON SUNDAY
AND HE WILL THEREBY LOSE HIS CAPITAL INVESTMENT.'  IN OTHER WORDS, THE
ISSUE IN THIS CASE - AND WE DO NOT UNDERSTAND EITHER APPELLEES OR THE
COURT TO CONTEND OTHERWISE - IS WHETHER A STATE MAY PUT AN INDIVIDUAL
TO A CHOICE BETWEEN HIS BUSINESS AND HIS RELIGION."  366 U.S., AT 611. 

THE IMPACT UPON THE APPELLANT'S RELIGIOUS FREEDOM IN THE PRESENT CASE
IN CONSIDERABLY LESS ONEROUS.  WE DEAL HERE NOT WITH A CRIMINAL
STATUTE, BUT WITH THE PARTICULARIZED ADMINISTRATION OF SOUTH CAROLINA'S
UNEMPLOYMENT COMPENSATION ACT.  EVEN UPON THE UNLIKELY ASSUMPTION THAT
THE APPELLANT COULD NOT FIND SUITABLE NON-SATURDAY EMPLOYMENT, (FN4)
THE APPELLANT AT THE WORST WOULD BE DENIED A MAXIMUM OF 22 WEEKS OF
COMPENSATION PAYMENTS.  I AGREE WITH THE COURT THAT THE POSSIBILITY OF
THAT DENIAL IS ENOUGH TO INFRINGE UPON THE APPELLANT'S CONSTITUTIONAL
RIGHT TO THE FREE EXERCISE OF HER RELIGION.  BUT IT IS CLEAR TO ME THAT
IN ORDER TO REACH THIS CONCLUSION THE COURT MUST EXPLICITLY REJECT THE
REASONING OF BRAUNFELD V. BROWN.  I THINK THE BRAUNFELD CASE WAS
WRONGLY DECIDED AND SHOULD BE OVERRULED, AND ACCORDINGLY I CONCUR IN
THE RESULT REACHED BY THE COURT IN THE CASE BEFORE US. 

FN1  MCGOWAN V. MARYLAND, 366 U.S. 420, 442. 

FN2  THE OBVIOUS POTENTIALITY OF SUCH COLLISION HAS BEEN STUDIOUSLY
IGNORED BY THE COURT, BUT HAS NOT ESCAPED THE PERCEPTION OF
COMMENTATORS.  SEE, E.G., KATZ, FREEDOM OF RELIGION AND STATE
NEUTRALITY, 20 U. OF CHI.  L. REV. 426, 428 (1953); KAUPER, PRAYER,
PUBLIC SCHOOLS AND THE SUPREME COURT, 61 MICH. L. REV. 1031, 1053
(1963). 

FN3  SEE JUDSON MILLS V. SOUTH CAROLINA UNEMPLOYMENT COMPENSATION
COMM'N, 204 S.C. 37, 28 S.E.2D 535; HARTSVILLE COTTON MILL V. SOUTH
CAROLINA EMPLOYMENT SECURITY COMM'N, 224 S.C. 407, 79 S.E.2D 381. 

FN4  AS NOTED BY THE COURT, "THE RECORD INDICATES THAT OF THE 150 OR
MORE SEVENTH-DAY ADVENTISTS IN THE SPARTANBURG AREA, ONLY APPELLANT AND
ONE OTHER HAVE BEEN UNABLE TO FIND SUITABLE NON-SATURDAY EMPLOYMENT." 
ANTE, P. 399, N. 2. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

TODAY'S DECISION IS DISTURBING BOTH IN ITS REJECTION OF EXISTING
PRECEDENT AND IN ITS IMPLICATIONS FOR THE FUTURE.  THE SIGNIFICANCE OF
THE DECISION CAN BEST BE UNDERSTOOD AFTER AN EXAMINATION OF THE STATE
LAW APPLIED IN THIS CASE. 

SOUTH CAROLINA' UNEMPLOYMENT COMPENSATION LAW WAS ENACTED IN 1936 IN
RESPONSE TO THE GRAVE SOCIAL AND ECONOMIC PROBLEMS THAT AROSE DURING
THE DEPRESSION OF THAT PERIOD.  AS STATED IN THE STATUTE ITSELF: 

"ECONOMIC INSECURITY DUE TO UNEMPLOYMENT IS A SERIOUS MENACE TO
HEALTH, MORALS AND WELFARE OF THE PEOPLE OF THIS STATE; INVOLUNTARY
UNEMPLOYMENT IS THEREFORE A SUBJECT OF GENERAL INTEREST AND CONCERN
...  ; THE ACHIEVEMENT OF SOCIAL SECURITY REQUIRES PROTECTION AGAINST
THIS GREATEST HAZARD OF OUR ECONOMIC LIFE; THIS CAN BE PROVIDED BY
ENCOURAGING THE EMPLOYERS TO PROVIDE MORE STABLE EMPLOYMENT AND BY THE
SYSTEMATIC ACCUMULATION OF FUNDS DURING PERIODS OF EMPLOYMENT TO
PROVIDE BENEFITS FOR PERIODS OF UNEMPLOYMENT, THUS MAINTAINING
PURCHASING POWER AND LIMITING THE SERIOUS SOCIAL CONSEQUENCES OF POOR
RELIEF ASSISTANCE."  SEC. 68-38. 

THUS THE PURPOSE OF THE LEGISLATURE WAS TO TIDE PEOPLE OVER, AND TO
AVOID SOCIAL AND ECONOMIC CHAOS, DURING PERIODS WHEN WORK WAS
UNAVAILABLE.   BUT AT THE SAME TIME THERE WAS CLEARLY NO INTENT TO
PROVIDE RELIEF FOR THOSE WHO FOR PURELY PERSONAL REASONS WERE OR BECAME
UNAVAILABLE FOR WORK.  IN ACCORDANCE WITH THIS DESIGN, THE LEGISLATURE
PROVIDED, IN SEC. 68-113, THAT "AN UNEMPLOYED INSURED WORKER SHALL BE
ELIGIBLE TO RECEIVE BENEFITS WITH RESPECT TO ANY WEEK ONLY IF THE
COMMISSION FINDS THAT  ...  HE IS ABLE TO WORK AND IS AVAILABLE FOR
WORK  ...  ."    THE SOUTH CAROLINA SUPREME COURT HAS UNIFORMLY APPLIED
THIS LAW IN CONFORMITY WITH ITS CLEARLY EXPRESSED PURPOSE.  IT HAS
CONSISTENTLY HELD THAT ONE IS NOT "AVAILABLE FOR WORK" IF HIS
UNEMPLOYMENT HAS RESULTED NOT FROM THE INABILITY OF INDUSTRY TO PROVIDE
A JOB BUT RATHER FROM PERSONAL CIRCUMSTANCES, NO MATTER HOW
COMPELLING.  THE REFERENCE TO "INVOLUNTARY UNEMPLOYMENT" IN THE
LEGISLATIVE STATEMENT OF POLICY, WHATEVER A SOCIOLOGIST, PHILOSOPHER,
OR THEOLOGIAN MIGHT SAY, HAS BEEN INTERPRETED NOT TO EMBRACE SUCH
PERSONAL CIRCUMSTANCES.  SEE, E.G., JUDSON MILLS V. SOUTH CAROLINA
UNEMPLOYMENT COMPENSATION COMM'N, 204 S.C. 37, 28 S.E.2D 535 (CLAIMANT
WAS "UNAVAILABLE FOR WORK" WHEN SHE BECAME UNABLE TO WORK THE THIRD
SHIFT, AND LIMITED HER AVAILABILITY TO THE OTHER TWO, BECAUSE OF THE
NEED TO CARE FOR HER FOUR CHILDREN); STONE MFG. CO. V. SOUTH CAROLINA
EMPLOYMENT SECURITY COMM'N, 219 S.C. 239, 64 S.E.2D 644; HARTSVILLE
COTTON MILL V. SOUTH CAROLINA EMPLOYMENT SECURITY COMM'N, 224 S.C.
407, 79 S.E.2D 381. 

IN THE PRESENT CASE ALL THAT THE STATE COURT HAS DONE IS TO APPLY
THESE ACCEPTED PRINCIPLES.  SINCE VIRTUALLY ALL OF THE MILLS IN THE
SPARTANBURG AREA WERE OPERATING ON A SIX-DAY WEEK, THE APPELLANT WAS
"UNAVAILABLE FOR WORK," AND THUS INELIGIBLE FOR BENEFITS, WHEN PERSONAL
CONSIDERATIONS PREVENTED HER FROM ACCEPTING EMPLOYMENT ON A FULL-TIME
BASIS IN THE INDUSTRY AND LOCALITY IN WHICH SHE HAD WORKED.  THE FACT
THAT THESE PERSONAL CONSIDERATIONS SPRANG FROM HER RELIGIOUS
CONVICTIONS WAS WHOLLY WITHOUT RELEVANCE TO THE STATE COURT'S
APPLICATION OF THE LAW.  THUS IN NO PROPER SENSE CAN IT BE SAID THAT
THE STATE DISCRIMINATED AGAINST THE APPELLANT ON THE BASIS OF HER
RELIGIOUS BELIEFS OR THAT SHE WAS DENIED BENEFITS BECAUSE SHE WAS A
SEVENTH-DAY ADVENTIST.  SHE WAS DENIED BENEFITS JUST AS ANY OTHER
CLAIMANT WOULD BE DENIED BENEFITS WHO WAS NOT "AVAILABLE FOR WORK" FOR
PERSONAL REASONS.  (FN1) 

WITH THIS BACKGROUND, THIS COURT'S DECISION COMES INTO CLEARER
FOCUS.  WHAT THE COURT IS HOLDING IS THAT IF THE STATE CHOOSES TO
CONDITION UNEMPLOYMENT COMPENSATION ON THE APPLICANT'S AVAILABILITY FOR
WORK, IT IS CONSTITUTIONALLY COMPELLED TO CARVE OUT AN EXCEPTION - AND
TO PROVIDE BENEFITS - FOR THOSE WHOSE UNAVAILABILITY IS DUE TO THEIR
RELIGIOUS CONVICTIONS.  (FN2)  SUCH A HOLDING HAS PARTICULAR
SIGNIFICANCE IN TWO RESPECTS. 

FIRST, DESPITE THE COURT'S PROTESTATIONS TO THE CONTRARY, THE
DECISION NECESSARILY OVERRULES BRAUNFELD V. BROWN, 366 U.S. 599, WHICH
HELD THAT IT DID NOT OFFEND THE "FREE EXERCISE" CLAUSE OF THE
CONSTITUTION FOR A STATE TO FORBID A SABBATARIAN TO DO BUSINESS ON
SUNDAY.  THE SECULAR PURPOSE OF THE STATUTE BEFORE US TODAY IS EVEN
CLEARER THAN THAT INVOLVED IN BRAUNFELD.  AND JUST AS IN BRAUNFELD -
WHERE EXCEPTIONS TO THE SUNDAY CLOSING LAWS FOR SABBATARIANS WOULD HAVE
BEEN INCONSISTENT WITH THE PURPOSE TO ACHIEVE A UNIFORM DAY OF REST AND
WOULD HAVE REQUIRED CASE-BY-CASE INQUIRY INTO RELIGIOUS BELIEFS - SO
HERE, AN EXCEPTION TO THE RULES OF ELIGIBILITY BASED ON RELIGIOUS
CONVICTIONS WOULD NECESSITATE JUDICIAL EXAMINATION OF THOSE CONVICTONS
AND WOULD BE AT ODDS WITH THE LIMITED PURPOSE OF THE STATUTE TO SMOOTH
OUT THE ECONOMY DURING PERIODS OF INDUSTRIAL INSTABILITY.  FINALLY, THE
INDIRECT FINANCIAL BURDEN OF THE PRESENT LAW IS FAR LESS THAN THAT
INVOLVED IN BRAUNFELD.  FORCING A STORE OWNER TO CLOSE HIS BUSINESS ON
SUNDAY MAY WELL HAVE THE EFFECT OF DEPRIVING HIM OF A SATISFACTORY
LIVELIHOOD IF HIS RELIGIOUS CONVICTIONS REQUIRE HIM TO CLOSE ON
SATURDAY AS WELL.  HERE WE ARE DEALING ONLY WITH TEMPORARY BENEFITS,
AMOUNTING TO A FRACTION OF REGULAR WEEKLY WAGES AND RUNNING FOR NOT
MORE THAN 22 WEEKS.  SEE SECS. 68-104, 68-105.  CLEARLY, ANY
DIFFERENCES BETWEEN THIS CASE AND BRAUNFELD CUT AGAINST THE PRESENT
APPELLANT.  (FN3) 

SECOND, THE IMPLICATIONS OF THE PRESENT DECISION ARE FAR MORE
TROUBLESOME THAN ITS APPARENTLY NARROW DIMENSIONS WOULD INDICATE AT
FIRST GLANCE.  THE MEANING OF TODAY'S HOLDING, AS ALREADY NOTED, IS
THAT THE STATE MUST FURNISH UNEMPLOYMENT BENEFITS TO ONE WHO IS
UNAVAILABLE FOR WORK IF THE UNAVAILABILITY STEMS FROM THE EXERCISE OF
RELIGIOUS CONVICTIONS.  THE STATE, IN OTHER WORDS, MUST SINGLE OUT FOR
FINANCIAL ASSISTANCE THOSE WHOSE BEHAVIOR IS RELIGIOUSLY MOTIVATED,
EVEN THOUGH IT DENIES SUCH ASSISTANCE TO OTHERS WHOSE IDENTICAL
BEHAVIOR (IN THIS CASE, INABILITY TO WORK ON SATURDAYS) IS NOT
RELIGIOUSLY MOTIVATED. 

IT HAS BEEN SUGGESTED THAT SUCH SINGLING OUT OF RELIGIOUS CONDUCT FOR
SPECIAL TREATMENT MAY VIOLATE THE CONSTITUTIONAL LIMITATIONS ON STATE
ACTION.  SEE KURLAND, OF CHURCH AND STATE AND THE SUPREME COURT, 29 U.
OF CHI.  L. REV. 1; CF. CAMMARANO V. UNITED STATES, 358 U.S. 498, 515
(CONCURRING OPINION).  MY OWN VIEW, HOWEVER, IS THAT AT LEAST UNDER THE
CIRCUMSTANCES OF THIS CASE IT WOULD BE A PERMISSIBLE ACCOMMODATION OF
RELIGION FOR THE STATE, IF IT CHOSE TO DO SO, TO CREATE AN EXCEPTION TO
ITS ELIGIBILITY REQUIREMENTS FOR PERSONS LIKE THE APPELLANT.  THE
CONSTITUTIONAL OBLIGATION OF "NEUTRALITY," SEE SCHOOL DISTRICT OF
ABINGTON TOWNSHIP V. SCHEMPP, ANTE, P. 222, IS NOT SO NARROW A CHANNEL
THAT THE SLIGHTEST DEVIATION FROM AN ABSOLUTELY STRAIGHT COURSE LEADS
TO CONDEMNATION.  THERE ARE TOO MANY INSTANCES IN WHICH NO SUCH COURSE
CAN BE CHARTED, TOO MANY AREAS IN WHICH THE PERVASIVE ACTIVITIES OF THE
STATE JUSTIFY SOME SPECIAL PROVISION FOR RELIGION TO PREVENT IT FROM
BEING SUBMERGED BY AN ALL-EMBRACING SECULARISM.  THE STATE VIOLATES ITS
OBLIGATION OF NEUTRALITY WHEN, FOR EXAMPLE, IT MANDATES A DAILY
RELIGIOUS EXERCISE IN ITS PUBLIC SCHOOLS, WITH ALL THE ATTENDANT
PRESSURES ON THE SCHOOL CHILDREN THAT SUCH AN EXERCISE ENTAILS.  SEE
ENGEL V. VITALE, 370 U.S. 421; SCHOOL DISTRICT OF ABINGTON TOWNSHIP V.
SCHEMPP, SUPRA.  BUT THERE IS, I BELIEVE, ENOUGH FLEXIBILITY IN THE
CONSTITUTION TO PERMIT A LEGISLATIVE JUDGMENT ACCOMMODATING AN
UNEMPLOYMENT COMPENSATION LAW TO THE EXERCISE OF RELIGIOUS BELIEFS SUCH
AS APPELLANT'S. 

FOR VERY MUCH THE SAME REASONS, HOWEVER, I CANNOT SUBSCRIBE TO THE
CONCLUSION THAT THE STATE IS CONSTITUTIONALLY COMPELLED TO CARVE OUT AN
EXCEPTION TO ITS GENERAL RULE OF ELIGIBILITY IN THE PRESENT CASE. 
THOSE SITUATIONS IN WHICH THE CONSTITUTION MAY REQUIRE SPECIAL
TREATMENT ON ACCOUNT OF RELIGION ARE, IN MY VIEW, FEW AND FAR BETWEEN,
AND THIS VIEW IS AMPLY SUPPORTED BY THE COURSE OF CONSTITUTIONAL
LITIGATION IN THIS AREA.  SEE, E.G., BRAUNFELD V. BROWN, SUPRA;
CLEVELAND V. UNITED STATES, 329 U.S. 14; PRINCE V. MASSACHUSETTS, 321
U.S. 158; JACOBSON V. MASSACHUSETTS, 197 U.S. 11; REYNOLDS V. UNITED
STATES, 98 U.S. 145.  SUCH COMPULSION IN THE PRESENT CASE IS
PARTICULARLY INAPPROPRIATE IN LIGHT OF THE INDIRECT, REMOTE, AND
INSUBSTANTIAL EFFECT OF THE DECISION BELOW ON THE EXERCISE OF
APPELLANT'S RELIGION AND IN LIGHT OF THE DIRECT FINANCIAL ASSISTANCE TO
RELIGION THAT TODAY'S DECISION REQUIRES. 

FOR THESE REASONS I RESPECTFULLY DISSENT FROM THE OPINION AND
JUDGMENT OF THE COURT.  (FN4) 

FN1  I AM COMPLETELY AT A LOSS TO UNDERSTAND NOTE 4 OF THE COURT'S
OPINION.  CERTAINLY THE COURT IS NOT BASING TODAY'S DECISION ON THE
UNSUPPORTED SUPPOSITION THAT SOME DAY, THE SOUTH CAROLINA SUPREME COURT
MAY CONCLUDE THAT THERE IS SOME PERSONAL REASON FOR UNEMPLOYMENT THAT
MAY NOT DISQUALIFY A CLAIMANT FOR RELIEF.  IN ANY EVENT, I SUBMIT IT IS
PERFECTLY CLEAR THAT SOUTH CAROLINA WOULD NOT COMPENSATE PERSONS WHO
BECAME UNEMPLOYED FOR ANY PERSONAL REASON, AS DISTINGUISHED FROM
LAYOFFS OR LACK OF WORK, SINCE THE STATE SUPREME COURT'S DECISIONS MAKE
IT PLAIN THAT SUCH PERSONS WOULD NOT BE REGARDED AS "AVAILABLE FOR
WORK" WITHIN THE MANIFEST MEANING OF THE ELIGIBILITY REQUIREMENTS.  NOR
CAN I UNDERSTAND WHAT THIS COURT MEANS WHEN IT SAYS THAT "IF THE
ELIGIBILITY PROVISIONS WERE THUS LIMITED, IT WOULD HAVE BEEN
UNNECESSARY FOR THE SOUTH CAROLINA COURT TO HAVE DECIDED APPELLANT'S
CONSTITUTIONAL CHALLENGE  ...  ." 

FN2  THE COURT DOES SUGGEST, IN A RATHER STARTLING DISCLAIMER, ANTE,
PP. 409-410, THAT ITS HOLDING IS LIMITED IN APPLICABILITY TO THOSE
WHOSE RELIGIOUS CONVICTIONS DO NOT MAKE THEM "NONPRODUCTIVE" MEMBERS OF
SOCIETY, NOTING THAT MOST OF THE SEVENTH-DAY ADVENTISTS IN THE
SPARTANBURG AREA ARE EMPLOYED.  BUT SURELY THIS DISCLAIMER CANNOT BE
TAKEN SERIOUSLY, FOR THE COURT CANNOT MEAN THAT THE CASE WOULD HAVE
COME OUT DIFFERENTLY IF NONE OF THE SEVENTH-DAY ADVENTISTS IN
SPARTANBURG HAD BEEN GAINFULLY EMPLOYED, OR IF THE APPELLANT'S RELIGION
HAD PREVENTED HER FROM WORKING ON TUESDAYS INSTEAD OF SATURDAYS.  NOR
CAN THE COURT BE SUGGESTING THAT IT WILL MAKE A VALUE JUDGMENT IN EACH
CASE AS TO WHETHER A PARTICULAR INDIVIDUAL'S RELIGIOUS CONVICTIONS
PREVENT HIM FROM BEING "PRODUCTIVE."  I CAN THINK OF NO MORE
INAPPROPRIATE FUNCTION FOR THIS COURT TO PERFORM. 

FN3  THE COURT'S RELIANCE ON SOUTH CAROLINA CODE SEC. 64-4, ANTE, P.
406, TO SUPPORT ITS CONCLUSION WITH RESPECT TO FREE EXERCISE, IS
MISPLACED.  SECTION 64-4, WHICH IS NOT A PART OF THE UNEMPLOYMENT
COMPENSATION LAW, IS AN EXTREMELY NARROW PROVISION THAT BECOMES
OPERATIVE ONLY DURING PERIODS OF NATIONAL EMERGENCY AND THUS HAS NO
BEARING IN THE CIRCUMSTANCES OF THE PRESENT CASE.  AND PLAINLY UNDER
OUR DECISIONS IN THE "SUNDAY LAW" CASES, APPELLANT CAN DERIVE NO
SUPPORT FOR HER POSITION FROM THE STATE'S GENERAL STATUTORY PROVISIONS
SETTING ASIDE SUNDAY AS A UNIFORM DAY OF REST. 

FN4  SINCE THE COURT STATES, ANTE, P. 410, THAT IT DOES NOT REACH THE
APPELLANT'S "EQUAL PROTECTION" ARGUMENT, BASED UPON SOUTH CAROLINA'S
EMERGENCY SUNDAY-WORK PROVISIONS, SECS. 64-4, 64-6, I DO NOT CONSIDER
IT APPROPRIATE FOR ME TO DO SO.
..END :





















HEAD, DBA LEA COUNTY PUBLISHING CO. V. NEW MEXICO BOARD OF EXAMINERS IN
OPTOMETRY 374 U.S. 424 


NO. 392.  ARGUED APRIL 15-16, 1963 - DECIDED JUNE 17, 1963 - 70 N.M. 90,
370 P.2D 811, AFFIRMED. 


ONE OF THE APPELLANTS OWNS A NEWSPAPER AND THE OTHER A RADIO STATION
IN NEW MEXICO CLOSE TO THE TEXAS BORDER AND MUCH OF THE AREA SERVED BY
BOTH THE NEWSPAPER AND THE RADIO STATION LIES IN TEXAS.  BOTH
APPELLANTS WERE ENJOINED BY A NEW MEXICO STATE COURT FROM ACCEPTING OR
PUBLISHING WITHIN THE STATE OF NEW MEXICO A TEXAS OPTOMETRIST'S
ADVERTISING FOUND TO BE IN VIOLATION OF A NEW MEXICO STATUTE REGULATING
ADVERTISING BY OPTOMETRISTS.  THE SUPREME COURT OF NEW MEXICO
AFFIRMED.  HELD: 

1.  THE NEW MEXICO STATUTE, AS APPLIED HERE TO PREVENT THE
PUBLICATION IN NEW MEXICO OF THE PROSCRIBED ADVERTISING, DOES NOT
IMPOSE A CONSTITUTIONALLY PROHIBITED BURDEN ON INTERSTATE COMMERCE. 
PP. 427-429. 

2.  NEW MEXICO'S JURISDICTION TO REGULATE PROFESSIONAL ADVERTISING
PRACTICES IN THE MANNER HERE INVOLVED HAS NOT BEEN PREEMPTED WITH
RESPECT TO RADIO ADVERTISING BY THE FEDERAL COMMUNICATIONS ACT.   PP.
429-432. 

3.  THE STATUTE HERE INVOLVED DOES NOT DEPRIVE APPELLANTS OF PROPERTY
WITHOUT DUE PROCESS OF LAW OR VIOLATE THEIR PRIVILEGES AND IMMUNITIES
OF NATIONAL CITIZENSHIP CONTRARY TO THE FOURTEENTH AMENDMENT.  P. 432,
N. 12. 

4.  APPELLANTS' CONTENTION THAT THE INJUNCTION CONSTITUTES AN INVALID
RESTRAINT UPON FREEDOM OF SPEECH PROTECTED BY THE FOURTEENTH AMENDMENT
IS NOT PROPERLY BEFORE THIS COURT, SINCE IT WAS NOT MADE IN THE STATE
COURTS OR RESERVED IN THE NOTICE OF APPEAL TO THIS COURT.  P. 433, N.
12. 

HEAD, DOING BUSINESS AS LEA COUNTY PUBLISHING CO., ET AL. V. NEW MEXICO
BOARD OF EXAMINERS IN OPTOMETRY. 

APPEAL FROM THE SUPREME COURT OF NEW MEXICO. 

OPINION OF THE COURT BY MR. JUSTICE STEWART, ANNOUNCED BY MR. JUSTICE
WHITE. 

THIS CASE COMES TO US ON APPEAL FROM THE SUPREME COURT OF NEW
MEXICO.  ONE OF THE APPELLANTS, AGNES K. HEAD, OWNS A NEWSPAPER IN
HOBBS, NEW MEXICO.  THE OTHER APPELLANT, PERMIAN BASIN RADIO
CORPORATION, OWNS AND OPERATES A RADIO STATION THERE.  HOBBS IS IN THE
SOUTHEASTERN CORNER OF THE STATE, CLOSE TO THE TEXAS BORDER AND MUCH OF
THE AREA SERVED BY BOTH THE RADIO STATION AND THE NEWSPAPER LIES IN
TEXAS.  THE APPELLANTS WERE ENJOINED FROM ACCEPTING OR PUBLISHING
WITHIN THE STATE OF NEW MEXICO A TEXAS OPTOMETRIST'S ADVERTISING FOUND
TO BE IN VIOLATION OF NEW MEXICO LAW.  THE APPELLANTS CLAIM THAT THE
STATE LAW, AS APPLIED, IMPOSES AN UNLAWFUL BURDEN ON INTERSTATE
COMMERCE.  PERMIAN ALSO ARGUES THAT REGULATION OF ADVERTISING BY RADIO
HAS BEEN PREEMPTED BY THE COMMUNICATIONS ACT OF 1934.  (FN1)  WE NOTED
PROBABLE JURISDICTION, 371 U.S. 900, AND INVITED THE SOLICITOR GENERAL
TO EXPRESS THE GOVERNMENT'S VIEWS CONCERNING THE QUESTION OF FEDERAL
PREEMPTION.  WE HAVE CONCLUDED THAT THE JUDGMENT SHOULD BE AFFIRMED. 

WITH THE PRACTICE OF OPTOMETRY.  IT PROHIBITS SEVERAL VARIETIES OF
UNAUTHORIZED PRACTICE, AND FORBIDS EVEN LICENSED PRACTITIONERS FROM
EMPLOYING CERTAIN SALES TECHNIQUES, SUCH AS HOUSE-TO-HOUSE CANVASSING,
PEDDLING ON STREETS OR HIGHWAYS, OR OFFERING LENSES AND FRAMES AS
PREMIUMS.  (FN2)  IT ALSO PROHIBITS: 

"(M)  ADVERTISING BY ANY MEANS WHATSOEVER THE QUOTATION OF ANY PRICES
OR TERMS ON EYEGLASSES, SPECTACLES, LENSES, FRAMES OR MOUNTINGS, OR
WHICH QUOTES DISCOUNT TO BE OFFERED ON EYEGLASSES, SPECTACLES, LENSES,
FRAMES OR MOUNTINGS OR WHICH QUOTES 'MODERATE PRICES,' 'LOW PRICES,'
'LOWEST PRICES,' 'GUARANTEED GLASSES,' 'SATISFACTION GUARANTEED,' OR
WORDS OF SIMILAR IMPORT." 

THE PURPOSE OF THIS PROVISION, ACCORDING TO THE SUPREME COURT OF NEW
MEXICO, IS TO "PROTECT  ... CITIZENS AGAINST THE EVILS OF PRICE
ADVERTISING METHODS TENDING TO SATISFY THE NEEDS OF THEIR POCKETBOOKS
RATHER THAN THE REMEDIAL REQUIREMENTS OF THEIR EYES."  70 N.M.  90, 94,
370 P.2D 811, 813.  SIMILAR LAWS HAVE BEEN ENACTED IN MANY STATES TO
ASSURE HIGH STANDARDS OF PROFESSIONAL COMPETENCE.  (FN3) 

THE FACTS STATED IN THE COMPLAINT WERE NOT DISPUTED.  APPELLANTS
RECEIVED AND PUBLISHED ADVERTISEMENTS FROM ABNER ROBERTS, AN
OPTOMETRIST WHO RESIDED AND CONDUCTED HIS BUISINESS IN THE STATE OF
TEXAS, JUST A FEW MILES EAST OF HOBBS.  IN THE WORDS OF THE COMPLAINT,
THIS ADVERTISING CONSISTED OF "THE QUOTATION OF PRICES ON EYEGLASSES
AND SPECTACLES, AND OF THE QUOTATION OF DISCOUNTS TO BE OFFERED ON
EYEGLASSES AND SPECTACLES."  THE APPELLANTS CONCEDED THAT THE
ADVERTISING VIOLATED SEC. 67-7-13(M).  FINDING THE STATUTE APPLICABLE
AND VIOLATED, THE TRIAL COURT ENJOINED EACH OF THE APPELLANTS "FROM
ACCEPTING OR PUBLISHING WITHIN THE STATE OF NEW MEXICO ADVERTISING OF
ANY NATURE FROM ABNER ROBERTS WHICH QUOTES PRICES OR TERMS ON
EYEGLASSES  ...  OR WHICH QUOTES MODERATE PRICES, LOW PRICES, LOWEST
PRICES, GUARANTEED GLASSES, SATISFACTION GUARANTEED, OR WORDS OF
SIMILAR IMPORT  ...  ."  THE SUPREME COURT OF NEW MEXICO AFFIRMED,
RULING THAT THE INJUNCTION DID NOT UNLAWFULLY BURDEN INTERSTATE
COMMERCE AND THAT THE STATE'S JURISDICTION HAD NOT BEEN OUSTED BY
FEDERAL LEGISLATION.  70 N.M. 90, 370 P.2D 811. 

                                         I. 

WITHOUT DOUBT, THE APPELLANTS' RADIO STATION AND NEWSPAPER ARE
ENGAGED IN INTERSTATE COMMERCE, AND THE INJUNCTION IN THIS CASE HAS
UNQUESTIONABLY IMPOSED SOME RESTRAINT UPON THAT COMMERCE.  BUT THESE
FACTS ALONE DO NOT ADD UP TO AN UNCONSTITUTIONAL BURDEN ON INTERSTATE
COMMERCE.  AS WE SAID IN HURON PORTLAND CEMENT CO. V. CITY OF DETROIT,
362 U.S. 440, UPHOLDING THE APPLICATION OF A DETROIT SMOKE ABATEMENT
ORDINANCE TO SHIPS ENGAGED IN INTERSTATE AND INTERNATIONAL COMMERCE:
"IN DETERMINING WHETHER THE STATE HAS IMPOSED AN UNDUE BURDEN ON
INTERSTATE COMMERCE, IT MUST BE BORNE IN MIND THAT THE CONSTITUTION
WHEN 'CONFERRING UPON CONGRESS THE REGULATION OF COMMERCE,  ...  NEVER
INTENDED TO CUT THE STATES OFF FROM LEGISLATING ON ALL SUBJECTS
RELATING TO THE HEALTH, LIFE, AND SAFETY OF THEIR CITIZENS, THOUGH THE
LEGISLATION MIGHT INDIRECTLY AFFECT THE COMMERCE OF THE COUNTRY. 
LEGISLATION, IN A GREAT VARIETY OF WAYS, MAY AFFECT COMMERCE AND
PERSONS ENGAGED IN IT WITHOUT CONSTITUTING A REGULATION OF IT, WITHIN
THE MEANING OF THE CONSTITUTION.'  SHERLOCK V. ALLING, 93 U.S. 99, 103;
AUSTIN V. TENNESSEE, 179 U.S. 343; LOUISVILLE & NASHVILLE R. CO. V.
KENTUCKY, 183 U.S. 503; THE MINNESOTA RATE CASES, 230 U.S. 352; BOSTON
& MAIN R. CO. V. ARMBURG, 285 U.S. 234; COLLINS V. AMERICAN BUSLINES,
INC., 350 U.S. 528."  362 U.S., AT 443-444. 

LIKE THE SMOKE ABATEMENT ORDINANCE IN THE HURON CASE, THE STATUTE
HERE INVOLVED IS A MEASURE DIRECTLY ADDRESSED TO PROTECTION OF THE
PUBLIC HEALTH, AND THE STATUTE THUS FALLS WITHIN THE MOST TRADITIONAL
CONCEPT OF WHAT IS COMPENDIOUSLY KNOWN AS THE POLICE POWER.  (FN4)  THE
LEGITIMACY OF STATE LEGISLATION IN THIS PRECISE AREA HAS BEEN EXPRESSLY
ESTABLISHED.  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483.  A STATE LAW
MAY NOT BE STRUCK DOWN ON THE MERE SHOWING THAT ITS ADMINISTRATION
AFFECTS INTERSTATE COMMERCE IN SOME WAY.  "STATE REGULATION, BASED ON
THE POLICE POWER, WHICH DOES NOT DISCRIMINATE AGAINST INTERSTATE
COMMERCE OR OPERATE TO DISRUPT ITS REQUIRED UNIFORMITY, MAY
CONSTITUTIONALLY STAND."  HURON PORTLAND CEMENT CO. V. CITY OF DETROIT,
SUPRA, AT 448. 

IT HAS NOT BEEN SUGGESTED THAT THE STATUTE, APPLICABLE ALIKE TO "ANY
PERSON" WITHIN THE STATE OF NEW MEXICO, DISCRIMINATES AGAINST
INTERSTATE COMMERCE AS SUCH.  NOR CAN WE FIND THAT THE LEGISLATION
IMPINGES UPON AN AREA OF INTERSTATE COMMERCE WHICH BY ITS NATURE
REQUIRES UNIFORMITY OF REGULATION.  THE APPELLANTS HAVE POINTED TO NO
REGULATIONS OF OTHER STATES IMPOSING CONFLICTING DUTIES, NOR CAN WE
READILY IMAGINE ANY.  COLORADO ANTI-DISCRIMINATION COMM'N V.
CONTINENTAL AIR LINES, 372 U.S. 714.   WE HOLD THAT THE NEW MEXICO
STATUTE, AS APPLIED HERE TO PREVENT THE PUBLICATION IN NEW MEXICO OF
THE PROSCRIBED PRICE ADVERTISING, DOES NOT IMPOSE A CONSTITUTIONALLY
PROHIBITED BURDEN UPON INTERSTATE COMMERCE.  (FN5)

                                         II. 

IN DEALING WITH THE CONTENTION THAT NEW MEXICO'S JURISDICTION TO
REGULATE RADIO ADVERTISING HAS BEEN PREEMPTED BY THE FEDERAL
COMMUNICATIONS ACT, WE MAY BEGIN BY NOTING THAT THE VALIDITY OF THIS
CLAIM CANNOT BE JUDGED BY REFERENCE TO BROAD STATEMENTS ABOUT THE
"COMPREHENSIVE" NATURE OF FEDERAL REGULATION UNDER THE FEDERAL
COMMUNICATIONS ACT.  (FN6)  "THE 'QUESTION WHETHER CONGRESS AND ITS
COMMISSIONS ACTING UNDER IT HAVE SO FAR EXERCISED THE EXCLUSIVE
JURISDICTION THAT BELONGS TO IT AS TO EXCLUDE THE STATE, MUST BE
ANSWERED BY A JUDGMENT UPON THE PARTICULAR CASE.'  STATEMENTS
CONCERNING THE 'EXCLUSIVE JURISDICTION' OF CONGRESS BEG THE ONLY
CONTROVERSIAL QUESTION:  WHETHER CONGRESS INTENDED TO MAKE ITS
JURISDICTION EXCLUSIVE."  CALIFORNIA V. ZOOK, 336 U.S. 725, 731.  KELLY
V. WASHINGTON, 302 U.S. 1, 10-13.  IN AREAS OF THE LAW NOT INHERENTLY
REQUIRING NATIONAL UNIFORMITY, (FN7) OUR DECISIONS ARE CLEAR IN
REQUIRING THAT STATE STATUTES, OTHERWISE VALID, MUST BE UPHELD UNLESS
THERE IS FOUND "SUCH ACTUAL CONFLICT BETWEEN THE TWO SCHEMES OF
REGULATION THAT BOTH CANNOT STAND IN THE SAME AREA, OR EVIDENCE OF A
CONGRESSIONAL DESIGN TO PREEMPT THE FIELD."  FLORIDA AVOCADO GROWERS V.
PAUL, 373 U.S. 132, 141. 

THE SPECIFIC PROVISIONS OF THE FEDERAL STATUTE CHIEFLY RELIED UPON TO
SUPPORT PERMIAN'S CLAIM ARE THOSE GOVERNING THE GRANTING, RENEWAL, AND
REVOCATION OF BROADCASTING LICENSES.  (FN8)  UNDER THE BROAD STANDARD
OF "PUBLIC INTEREST, CONVENIENCE, AND NECESSITY," THE FEDERAL
COMMUNICATIONS COMMISSION MAY CONSIDER A WIDE VARIETY OF FACTORS IN
PASSING UPON THE FITNESS OF AN APPLICANT.  IT IS ARGUED THAT THE
CONTENT OF ADVERTISING IS ONE OF THE FACTORS WHICH MAY BE CONSIDERED,
AND THERE IS EVIDENCE THAT THE COMMISSION ITSELF HAS ON OCCASION SO
INTERPRETED ITS AUTHORITY.  (FN9) FURTHER, THE UNITED STATES ARGUES
THAT THE COMMISSION HAS THE AUTHORITY TO PROMULGATE GENERAL REGULATIONS
CONCERNING THE SUBJECT OF ADVERTISING FOR THE GUIDANCE OF
BROADCASTERS.  SEE FEDERAL COMMUNICATIONS COMM'N V. AMERICAN
BROADCASTING CO., 347 U.S. 284, 289-290.  THIS GRANT OF FEDERAL POWER,
IT IS ARGUED, IS SUFFICIENT TO OUST STATE REGULATION OF RADIO
ADVERTISING. 

ASSUMING THIS TO BE A CORRECT STATEMENT OF THE COMMISSION'S
AUTHORITY, WE ARE NEVERTHELESS NOT PERSUADED THAT THE FEDERAL
LEGISLATION IN THIS FIELD HAS EXCLUDED THE APPLICATION OF A STATE LAW
OF THE KIND HERE INVOLVED.  THE NATURE OF THE REGULATORY POWER GIVEN TO
THE FEDERAL AGENCY CONVINCES US THAT CONGRESS COULD NOT HAVE INTENDED
ITS GRANT OF AUTHORITY TO SUPPLANT ALL THE DETAILED STATE REGULATION OF
PROFESSIONAL ADVERTISING PRACTICES, PARTICULARLY WHEN THE GRANT OF
POWER TO THE COMMISSION WAS ACCOMPANIED BY NO SUBSTANTIVE STANDARD
OTHER THAN THE "PUBLIC INTEREST, CONVENIENCE, AND NECESSITY."  (FN10)
THE SOLICITOR GENERAL HAS CONCEDED THAT THE POWER OF LICENSE REVOCATION
IS NOT A PLAUSIBLE SUBSTITUTE FOR STATE LAW DEALING WITH "TRADITIONAL"
TORTS OR CRIMES COMMITTED THROUGH THE USE OF RADIO.  WE CAN FIND NO
MATERIAL DIFFERENCE WITH RESPECT TO THE LESS "TRADITIONAL" STATUTORY
VIOLATION HERE INVOLVED.  IN THE ABSENCE OF POSITIVE EVIDENCE OF
LEGISLATIVE INTENT TO THE CONTRARY, WE CANNOT BELIEVE CONGRESS HAS
OUSTED THE STATES FROM AN AREA OF SUCH FUNDAMENTALLY LOCAL CONCERN. 

FINALLY, THERE HAS BEEN NO SHOWING OF ANY CONFLICT BETWEEN THIS STATE
LAW AND THE FEDERAL REGULATORY SYSTEM, OR THAT THE STATE LAW STANDS AS
AN OBSTACLE TO THE FULL EFFECTIVENESS OF THE FEDERAL STATUTE.  NO
SPECIFIC REGULATIONS EVEN REMOTELY IN CONFLICT WITH THE NEW MEXICO LAW
HAVE BEEN CALLED TO OUR ATTENTION.  THE COMMISSION ITSELF HAS
APPARENTLY VIEWED STATE REGULATION OF ADVERTISING AS COMPLEMENTING ITS
REGULATORY FUNCTION, RATHER THAN IN ANY WAY CONFLICTING WITH IT. (FN11)
AS IN COLORADO ANTI-DISCRIMINATION COMM'N V. CONTINENTAL AIR LINES,
INC., 372 U.S. 714, AT 724, WE ARE SATISFIED THAT THE STATE STATUTE "AT
LEAST SO LONG AS ANY POWER THE COMMISSION MAY HAVE REMAINS 'DORMANT AND
UNEXERCISED,' WILL NOT FRUSTRATE ANY PART OF THE PURPOSE OF THE FEDERAL
LEGISLATION."  (FN12)  AFFIRMED. 

FN1  48 STAT. 1064, AS AMENDED, 47 U.S.C. SEC. 151 ET SEQ. 

FN2  "(I)  EITHER IN PERSON OR BY OR THROUGH SOLICITORS OR AGENTS
GIVING OR OFFERING TO GIVE TO ANY PERSON EYEGLASSES, SPECTACLES OR
LENSES, EITHER WITH OR WITHOUT FRAMES OR MOUNTINGS, AS A PREMIUM OR
INDUCEMENT FOR ANY SUBSCRIPTION TO ANY BOOK, SET OF BOOKS, MAGAZINES,
MAGAZINE, PERIODICAL OR OTHER PUBLICATION, OR AS A PREMIUM OR
INDUCEMENT FOR THE PURCHASE OF ANY GOODS, WARES OR MERCHANDISE. 

     *         *         *         *         * 

"(K)  THE MAKING OF A HOUSE TO HOUSE CANVASS EITHER IN PERSON OR
THROUGH SOLICITORS OR ASSOCIATES FOR THE PURPOSE OF SELLING,
ADVERTISING OR SOLICITING THE SALE OF EYEGLASSES, SPECTACLES, LENSES,
FRAMES, MOUNTINGS, EYE EXAMINATIONS OR OPTOMETRICAL SERVICES. 

"(L)  THE PEDDLING OF EYEGLASSES, SPECTACLES OR LENSES FROM HOUSE TO
HOUSE OR ON THE STREETS OR HIGHWAYS, NOTWITHSTANDING ANY LAW FOR
LICENSING OF PEDDLERS." 

FN3  SEE ARK. STAT. ANN. SEC. 72-815 (1957 REPLACEMENT); CAL. BUS.  &
PROFESSIONS CODE SEC. 3129; DEL. CODE ANN., TIT. 24, SEC. 2113; FLA.
STAT. ANN. SECS. 463.11, 463.14; HAWAII REV. LAWS SEC. 68-9(D) (1960
SUPP.); IND. STAT. ANN. SECS. 63-1018AE), 63-1019(F) (1961); KY. REV.
STAT. SEC. 320.300; LA. REV. STAT. SEC. 37:1063; MICH. STAT. ANN. SEC.
14.648(I) (1961 SUPP.); MINN. STAT. ANN. SEC. 148.57(3); MO. ANN. STAT.
SEC. 336.110; MONT. REV. CODES SEC. 66-1302(11); NEB. REV. STAT. SEC.
71-148; NEV. REV. STAT. SEC.  636:300(10); N.J. STAT. ANN. SEC. 45:12
11(H) (1962 SUPP.); N.C. GEN. STAT. SEC. 90-124(9); N. DAK.  CENT. 
CODE SEC. 43-13-29; OKLA. STAT. ANN., TIT. 59, SEC. 943; ORE.  REV. 
STAT.  SEC. 683.140(6); PA. STAT. ANN., TIT. 63, SEC. 237; R.I. GEN.
LAWS SEC. 5-35-22; S.C.  CODE OF LAWS SEC. 56-1075; S. DAK.  CODE SEC.
27.0707(6) (1960 SUPP.); TENN. CODE ANN. SEC. 63-815; VA. CODE SEC. 54
388, PAR. 2(D); WASH. REV. CODE ANN. SEC. 18.53.140; W.VA. CODE SEC.
2937 (1961); WIS. STAT. ANN. SEC. 153.10. 

FN4  THE CASE IS NOT ONE, THEREFORE, IN WHICH THE STATE SEEKS TO
JUSTIFY A STATUTE AS A HEALTH MEASURE ON THE ATTENUATED THEORY THAT THE
ECONOMIC WELL-BEING OF A PROFESSION OR INDUSTRY WILL ASSURE BETTER
PERFORMANCE IN THE PUBLIC INTEREST.  SEE BALDWIN V. G.A.F.  SEELIG,
INC., 294 U.S. 511, 522-523.  COMPARE SEMLER V. DENTAL EXAMINERS, 294
U.S. 608. 

FN5  THE APPELLANTS HAVE ARGUED THAT THE DECREE BELOW WILL HAVE THE
EFFECT OF PREVENTING COMMUNICATION BETWEEN THE TEXAS OPTOMETRIST AND
TEXAS RESIDENTS.  A SIMILAR ARGUMENT WAS REJECTED IN RAILWAY EXPRESS
AGENCY V. NEW YORK, 336 U.S. 106, WHICH HELD VALID A LOCAL ORDINANCE
PROHIBITING THE DISPLAY OF ADVERTISING ON TRUCKS WHICH ALSO OPERATED IN
OTHER STATES.    FN6  E.G., NATIONAL BROADCASTING CO. V. UNITED STATES,
319 U.S. 190, 213 ("WIDE LICENSING AND REGULATORY POWERS"), ID., AT 217
("COMPREHENSIVE POWERS TO PROMOTE AND REALIZE THE VAST POTENTIALITIES
OF RADIO"); FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING
CO., 309 U.S. 134, 137 ("UNIFIED AND COMPREHENSIVE REGULATORY SYSTEM
FOR THE INDUSTRY"). 

IT IS TO BE NOTED THAT THIS CASE IN NO WAY INVOLVES THE COMMISSION'S
JURISDICTION OVER TECHNICAL MATTERS SUCH AS A FREQUENCY ALLOCATION,
OVER WHICH FEDERAL CONTROL IS CLEARLY EXCLUSIVE.  47 U.S.C. SEC. 301. 
FN7  SEE HINES V. DAVIDOWITZ, 312 U.S. 52. 

FN8  SEE 47 U.S.C. SECS. 303(J), 307(A), (D), 308(A), 309(A), AND
312. 

FN9  WE HAVE BEEN CITED TO SPECIFIC INSTANCES IN WHICH THE CONTENT OF
ADVERTISING ANALOGOUS TO THAT INVOLVED IN THIS CASE HAS BEEN
CONSIDERED.  SEE, E.G., FARMERS & BANKERS LIFE INS.  CO., 2 F.C.C. 455;
WSBC, INC., 2 F.C.C. 293; OAK LEAVES BROADCASTING STATION, INC., 2
F.C.C.  298.  AND SEE KFKB BROADCASTING ASSN. V. FEDERAL RADIO COMM'N,
60 APP. D.C. 79, 47 F.2D 670. 

FN10  SEE INTERSTATE COMMERCE COMM'N V. LOS ANGELES, 280 U.S. 52, 68
70.  COMPARE ALLEN B. DUMONT LABORATORIES V. CARROLL, 184 F.2D 153,
WHICH HELD STATE CENSORSHIP OF MOTION PICTURES SHOWN ON TELEVISION
PREEMPTED BY THOSE PROVISIONS OF THE FEDERAL ACT EXPRESSLY DEALING WITH
"COMMUNICATIONS CONTAINING PROFANE OR OBSCENE WORDS, LANGUAGE, OR
MEANING."  47 U.S.C. SEC. 303(M)(1)(D). 

FN11  OUR ATTENTION HAS BEEN DIRECTED TO THE FOLLOWING STATEMENT OF
COMMISSION POLICY: 

"IN THOSE LOCALITIES AND STATES WHERE THE SALE OF ALCOHOLIC BEVERAGES
IS PROHIBITED BY LOCAL OR STATE STATUTES, SUCH ADVERTISING BY RADIO IN
THOSE AREAS WOULD, OF COURSE, NOT BE IN THE PUBLIC INTEREST, SINCE
ADHERENCE TO THE LAWS OF THE STATE IN WHICH A STATION IS LOCATED,
ESPECIALLY LAWS EXPRESSIVE TO THE PUBLIC POLICY OF THE STATE OR
LOCALITY ON SUBJECTS RELATIVE TO HEALTH, SAFETY, AND MORALS, IS AN
IMPORTANT ASPECT OF OPERATION IN THE PUBLIC INTEREST.  OBVIOUSLY, THE
SAME IS TRUE WITH RESPECT TO THOSE AREAS WHERE ADVERTISING OF ALCOHOLIC
BEVERAGES IS PROHIBITED BY LAW."  F.C.C. LETTER TO SEN. EDWIN C.
JOHNSON, CHAIRMAN OF THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, AUGUST 11, 1949, 5 PIKE & FISCHER RADIO REG. 593-594. 

FN12  THE APPELLANTS URGE THREE ADDITIONAL GROUNDS FOR REVERSAL. 
EACH MAY BE DISPOSED OF BRIEFLY.  FIRST, BOTH APPELLANTS URGE THAT THE
STATE STATUTE DEPRIVES THEM OF PROPERTY, IN VIOLATION OF THE DUE
PROCESS CLAUSE.  THAT CLAIM IS FORECLOSED BY WILLIAMSON V. LEE OPTICAL
CO., 348 U.S. 483.  SEE ALSO FERGUSON V. SKRUPA, 372 U.S. 726.  THE
APPELLANT HEAD CLAIMS THAT DENIAL OF HER RIGHT TO DO BUSINESS WITH
ABNER ROBERTS IS A VIOLATION OF HER PRIVILEGES AND IMMUNITIES OF
NATIONAL CITIZENSHIP.   BUT THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE
FOURTEENTH AMENDMENT DOES NOT CREATE A NAKED RIGHT TO CONDUCT A
BUSINESS FREE OF OTHERWISE VALID STATE REGULATION.  MADDEN V. KENTUCKY,
309 U.S. 83, 92-93.  FINALLY, IT IS CONTENDED THAT THE INJUNCTION
CONSTITUTES AN INVALID RESTRAINT UPON FREEDOM OF SPEECH PROTECTED BY
THE FOURTEENTH AMENDMENT.  THIS ARGUMENT WAS NOT MADE TO THE STATE
COURTS, NOR WAS IT RESERVED IN THE NOTICE OF APPEAL TO THIS COURT. 
UNDER RULE 10, PAR. 2, OF THE RULES OF THIS COURT, "ONLY THE QUESTIONS
SET FORTH IN THE NOTICE OF APPEAL OR FAIRLY COMPRISED THEREIN WILL BE
CONSIDERED BY THE COURT."  SEE ALSO RULE 15, PAR. 1(C)(1). 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE BRENNAN, CONCURRING. 

I AGREE THAT THE ATTACK ON THE NEW MEXICO STATUTE AS AN UNREASONABLE
BURDEN ON INTERSTATE COMMERCE HAS NO MERIT AND THEREFORE JOIN PART I OF
THE COURT'S OPINION.  THE ATTACK BASED ON THE SUPREMACY CLAUSE - THE
CONTENTION THAT THE FEDERAL COMMUNICATIONS ACT PREEMPTS THE SUBJECT
MATTER OF THIS STATE REGULATION - IS NOT, HOWEVER, SO EASILY ANSWERED. 
ALTHOUGH I CONCLUDE THAT IT TOO CANNOT PREVAIL, I THINK IT IS
APPROPRIATE THAT I STATE SEPARATELY MY REASONS FOR REACHING THAT
RESULT.  FOR ONLY RECENTLY WE HELD, IN FARMERS EDUCATIONAL &
COOPERATIVE UNION V. WDAY, INC., 360 U.S. 525, THAT THE COMMUNICATIONS
ACT DISPLACED THE STATE LAW OF DEFAMATION INSOFAR AS THAT LAW DIRECTLY
CONFLICTED WITH THE "EQUAL TIME" AIMS OF SEC. 315.  CF. RADIO STATION
WOW, INC., V. JOHNSON, 326 U.S. 120; ALLEN B. DUMONT LABS.  V. CARROLL,
184 F.2D 153.  WHAT REASONS ARISE FROM THE RELEVANT STATE AND FEDERAL
LEGISLATION GOVERNING ADVERTISING WHICH REQUIRE A DIFFERENT CONCLUSION
IN THIS CASE? 

                  I. 

I AGREE THAT, AS THE COURT SAYS, THE NEW MEXICO STATUTE IS NOT
DISPLACED BY THE FCC'S POWERS "GOVERNING THE GRANTING, RENEWAL, AND
REVOCATION OF BROADCASTING LICENSES."  IF THAT WERE THE ONLY SANCTION
WHICH THE COMMISSION MIGHT APPLY TO THE ADVERTISING PRACTICES WHICH THE
NEW MEXICO STATUTE FORBIDS, THE BASIS FOR ANY CLAIM OF THE FEDERAL
STATUTE'S PREEMPTIVE EFFECT WOULD BE REMOVED.  FOR THE COMMISSION HAS
LONG DISCLAIMED THE EFFECTIVENESS OF ATTEMPTING TO POLICE MINOR
DEVIATIONS AND INDISCRETIONS IN PROGRAMMING AND ADVERTISING BY THE USE
OF "THE CUMBERSOME WEAPONS OF CRIMINAL PENALTIES AND LICENSE REFUSAL
AND REVOCATION."  REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA V.
CARROLL, 338 U.S. 586, 602.  (FN1)  THIS OBSTACLE LED THE CONGRESS IN
1960, ON THE RECOMMENDATIONS OF THE COMMISSION AND THE ATTORNEY
GENERAL, (FN2) TO AMEND THE COMMUNICATIONS ACT TO AUTHORIZE THE
COMMISSION TO IMPOSE MONEY FORFEITURES, 47 U.S.C. SEC. 503(B), AND TO
GRANT SHORT-TERM LICENSES, 47 U.S.C. SEC. 307(D).  THE AMENDMENTS ALSO
STRENGTHENED THE COMMISSION'S PREEXISTING POWER TO ISSUE CEASE-AND
DESIST ORDERS, 47 U.S.C. SEC. 312(B).  THE COMMISSION WAS THUS
EXPRESSLY GIVEN MORE DISCRIMINATING TOOLS "IN DEALING WITH VIOLATIONS
IN SITUATIONS WHERE REVOCATION OR SUSPENSION DOES NOT APPEAR TO BE
APPROPRIATE."  (FN3) 

THE COMMISSION HAS BEEN PROMPT TO APPLY ITS NEW SANCTIONS.  SOME
STATIONS "WHOSE VIOLATION RECORDS INDICATED NEED FOR CLOSER
SUPERVISION" HAVE BEEN LIMITED TO SHORT-TERM LICENSES.  (FN4)
FORFEITURES HAVE BEEN IMPOSED FOR "VIOLATIONS THAT DO NOT WARRANT
REVOCATION PROCEEDINGS"; (FN5) AND CEASE-AND-DESIST ORDERS HAVE BEEN
ISSUED FOR THE FIRST TIME IN BROADCAST CASES.  (FN6)  THUS INFRACTIONS
WHICH WOULD HERETOFORE HAVE GONE FORMALLY UNREGULATED ARE APPARENTLY
NOW BEING DEALT WITH BECAUSE THE COMMISSION MAY IMPOSE SANCTIONS MORE
COMMENSURATE WITH THE GRAVITY OF THE OFFENSE. 

THIS IS NOT TO SAY THAT BEFORE THE 1960 AMENDMENTS THE COMMISSION
NEVER FOUND THE CANCELLATION POWER USEFUL IN CURBING SOME ABUSES NOW
POLICED UNDER THE LESS DRASTIC SANCTIONS.  INDEED, THE COMMISSION'S
INFORMAL POLICING OF MINOR COMPLAINTS HAD SOME SUCCESS PRECISELY
BECAUSE THE "DEATH SENTENCE" COULD BE IMPOSED.  "THE LICENSING POWER OF
THE FCC," ONE COMMENTATOR HAS SAID, "HANGS LIKE A CONSTANT DAMOCLES'
SWORD OVER BROADCASTING."  (FN7)  THE COMMISSION REGULARLY REPORTED TO
CONGRESS THAT A GREAT NUMBER OF COMPLAINTS ABOUT PROGRAMMING OR
ADVERTISING WERE READILY RESOLVED BY "INFORMAL ADJUSTMENT," WITHOUT
NEED FOR RECOURSE TO FORMAL HEARINGS, MUCH LESS TO REVOCATION
PROCEEDINGS.  (FN8)  THE COMMISSION, IT APPEARS, THOUGH SPARINGLY
INVOKING THE CANCELLATION POWER, HAD "POWERFUL INFORMAL SANCTIONS
WORKING IN ITS FAVOR, FOR THE CONSTANT THEORETICAL THREAT OF LICENSE
REVOCATION AT RENEWAL TIME IS ALWAYS PRESENT  ...  .  IF A COMPLAINT
ARISES IN THE PROGRAMMING FIELD THAT ACCUSES A STATION OF VIOLATING FCC
STANDARDS THE MERE NOTIFICATION OF THE RESPONDENT OF THE FACT OF THE
COMPLAINT WOULD RESULT IN IMMEDIATE SETTLEMENT IN MANY CASES."  (FN9) 

IT SEEMS TO ME, THEN, THAT A CONCLUSION OF NONDISPLACEMENT OF THE
STATE STATUTE AT BAR BY THE FEDERAL COMMUNICATIONS ACT CAN REST NEITHER
UPON THE PRACTICAL INABILITY OF THE FCC TO POLICE THOSE PRACTICES WHICH
THE STATE HAS FORBIDDEN, NOR UPON ANY WANT OF AUTHORITY IN THE
COMMISSION TO REGULATE THE SUBJECT MATTER OF THE NEW MEXICO STATUTE. 
ACTUALLY, THE COMMISSION HAS CONCERNED ITSELF WITH THE CONTENT OF RADIO
ADVERTISING ALMOST FROM THE TIME THAT FEDERAL REGULATION OF COMMERCIAL
BROADCASTING BEGAN.  ADVERTISING ABUSES IN THE EARLY DAYS OF RADIO WERE
A CONSTANT SOURCE OF EMBARRASSMENT AND CONCERN TO THE COMMISSION AND
ITS PREDECESSOR, THE FEDERAL RADIO COMMISSION.  (FN10)  ONE OF THE
PRINCIPAL ABUSES COMPLAINED OF WAS THE ASPECT OF COMMERCIAL SPONSORSHIP
WITH WHICH THE NEW MEXICO STATUTE IS CONCERNED - "DIRECT" OR PRICE
ADVERTISING.  THE FIRST ANNUAL RADIO CONFERENCE, MEETING IN 1922 AT THE
INVITATION OF SECRETARY HOOVER, STRONGLY RECOMMENDED "THAT DIRECT
ADVERTISING IN RADIO BROADCASTING SERVICE BE ABSOLUTELY PROHIBITED  ...
."  (FN11)  AT LEAST ONE STATION LOST ITS LICENSE DURING THE '20'S
BECAUSE, AMONG OTHER ABUSES, IT HAD INDULGED EXCESSIVELY IN "DIRECT
ADVERTISING, INCLUDING THE QUOTING OF PRICES."  (FN12)  AND UNTIL THE
PASSAGE OF THE COMMUNICATIONS ACT IN 1934, MEMBERS OF THE COMMISSION
AND OF CONGRESS CONTINUED TO HOPE THAT BROADCASTING FREE OF ALL
COMMERCIALS - OR AT LEAST DEVOID OF DIRECT ADVERTISING, ONE FORM OF
SPONSORSHIP PARTICULARLY OBJECTED TO - MIGHT BECOME A COMMERCIAL
REALITY.  (FN13)  EVEN REPRESENTATIVES OF THE INDUSTRY SHARED THIS HOPE
FOR A TIME.  (FN14) 

THE ADVENT OF THE 1930'S APPARENTLY FORECLOSED THE POSSIBILITY OF
RADIO WITHOUT COMMERCIALS, AND THE COMMISSION SHIFTED ITS ATTENTION TO
A MORE DISCRIMINATING APPRAISAL OF THE CONTENT OF ADVERTISING OVER THE
AIR.  AS EARLY AS 1928, FOR EXAMPLE, THE GENERAL COUNSEL OF THE RADIO
COMMISSION HELD THAT ABUSES IN NETWORK CIGARETTE ADVERTISING - WHILE
NOT A SUFFICIENT BASIS FOR REVOCATION PROCEEDINGS AGAINST AN INDIVIDUAL
LICENSEE - MIGHT ON RENEWAL MILITATE AGAINST THE REQUISITE FINDING OF
BROADCASTING IN "THE PUBLIC INTEREST."  (FN15)  DURING THE MID-1930'S,
MOREOVER, THE COMMISSION REPEATEDLY WARNED THAT ADVERTISING EXCESSES
AND THE USE OF COMMERCIAL MATERIAL OFFENSIVE TO THE LISTENING PUBLIC
MIGHT CONSTITUTE GROUNDS FOR THE CANCELLATION OF A LICENSE.  (FN16)
HOWEVER, NO LICENSE APPEARS TO HAVE BEEN WITHDRAWN SOLELY FOR THAT
REASON.  RATHER, THE POSSIBILITY OF CANCELLATION SEEMS TO HAVE BEEN
EMPLOYED AS A THREAT, AND AN EFFECTIVE ONE, FOR THE COMMISSION
CONTINUED TO REPORT ITS SATISFACTION THAT MANY COMPLAINTS OF THIS
NATURE WERE SETTLED THROUGH THE USE OF WARNINGS AND OTHER INFORMAL
SANCTIONS OUTSIDE THE FORMAL ADMINISTRATIVE MACHINERY.  RECOURSE TO
THESE INFORMAL SOLUTIONS SEEMS TO HAVE BEEN EXTENSIVE AT LEAST UNTIL
1940. 

SINCE WORLD WAR II, HOWEVER, THE COMMISSION HAS APPARENTLY FOLLOWED A
POLICY WHICH PUTS LESS EMPHASIS UPON REGULATION OF THE CONTENT AND
QUALITY OF COMMERCIALS.  IN ITS 1946 "BLUE BOOK," THE COMMISSION,
ALTHOUGH CATALOGUING VARIOUS ADVERTISING ABUSES, INCLUDING SEVERAL
WHICH DIRECTLY INVOLVED CONTENT, EXPRESSLY DISAVOWED ANY INTENTION TO
REGULATE DIRECTLY "ADVERTISING EXCESSES OTHER THAN AN EXCESSIVE RATIO
OF ADVERTISING TIME TO PROGRAM TIME  ...  ."  (FN17)  THE "BLUE BOOK"
STATED, REGARDING THE OTHER FORMS OF ABUSE:  "THE COMMISSION HAS NO
DESIRE TO CONCERN ITSELF WITH THE PARTICULAR LENGTH, CONTENT, OR
IRRITATING QUALITIES OF PARTICULAR COMMERCIAL PLUGS."  (FN18) THERE ARE
MORE RECENT SIGNS OF RENEWED ATTENTION TO THE SUBJECT OF ADVERTISING
CONTENT, BUT NOTHING APPEARS TO APPROACH THE PERVASIVE SUPERINTENDENCE
OF THE 1930'S.  (FN19)  IN ANY EVENT THE FCC HAS SEEMED CONTENT TO
LEAVE TO THE FEDERAL TRADE COMMISSION THE REGULATION OF MUCH OF THE
FIELD, PARTICULARLY THE POLICING OF FALSE, MISLEADING OR DECEPTIVE
ADVERTISING DESIGNED FOR RADIO AND TELEVISION BROADCAST.  WHILE THE FCC
HAS CONSISTENTLY WARNED ITS LICENSEES THAT THE CONTINUED BROADCASTING
OF MATERIAL FOUND BY THE FTC TO BE DECEPTIVE OR MISLEADING "WOULD RAISE
SERIOUS QUESTIONS AS TO WHETHER SUCH STATIONS ARE OPERATING IN THE
PUBLIC INTEREST," ITS POLICY SEEMS TO HAVE BEEN TO LEAVE THE MATTER OF
DIRECT AND IMMEDIATE SANCTIONS LARGELY TO THE TRADE COMMISSION.  (FN20)

                                         II. 

IT IS AGAINST THIS PATTERN OF FEDERAL REGULATION THAT WE MUST APPLY
IN THIS CASE THE SETTLED TESTS BY WHICH WE DETERMINE WHETHER FEDERAL
LEGISLATION HAS DISPLACED STATE REGULATION OF A GIVEN SUBJECT MATTER. 
UNDER THE FIRST TEST THE SUBJECT MATTER, HERE RADIO AND TELEVISION
BROADCASTING, IS CLEARLY NOT ONE "BY ITS VERY NATURE ADMITTING ONLY OF
NATIONAL SUPERVISION  ...  ."  FLORIDA LIME & AVOCADO GROWERS, INC., V.
PAUL, 373 U.S. 132, 143.  NOTHING IN OUR DECISIONS WHICH HAVE REQUIRED
PARTICULAR STATE REGULATIONS TO YIELD TO THE COMMUNICATIONS ACT
SUGGESTS SUCH A VIEW OF THE REGULATORY FIELD.  CF. FARMERS EDUCATIONAL
& COOPERATIVE UNION V. WDAY, INC., SUPRA.  ALTHOUGH IN RADIO STATION
WOW, INC., V. JOHNSON, SUPRA, AT 131-132, WE DECREED THE DISPLACEMENT
OF STATE LAW IN SOME RESPECTS, WE RECOGNIZED THAT STATE REGULATION IN
OTHER RESPECTS MIGHT BE CONSTITUTIONAL. 

THE SECOND TEST, WHETHER THERE IS EVIDENCE OF CONGRESSIONAL INTENT
EXCLUSIVELY TO OCCUPY THE FIELD, IS APPOSITE BUT THE REQUISITE EVIDENCE
IS LACKING.  WE HAVE SAID, TO BE SURE, THAT "NO STATE LINES DIVIDE THE
RADIO WAVES, AND NATIONAL REGULATION IS NOT ONLY APPROPRIATE BUT
ESSENTIAL TO THE EFFICIENT USE OF RADIO FACILITIES."  FEDERAL RADIO
COMM'N V. NELSON BROS.  BOND & MORTGAGE CO., 289 U.S. 266, 279.  BUT
THAT LANGUAGE SHOULD NOT BE READ AS CONSTRUING THE COMMUNICATIONS ACT
TO MANDATE THE OUSTER OF ALL LOCAL REGULATION THE APPLICATION OF WHICH
MIGHT IN ANY WAY PREVENT PERFECT NATIONAL UNIFORMITY.  (FN21)  INDEED,
EVEN THE SOLICITOR GENERAL, IN HIS BRIEF AS AMICUS CURIAE, CONCEDES AS
MUCH BY HIS RECOGNITION THAT CONGRESS INTENDED THE SURVIVAL OF CERTAIN
"TRADITIONAL" STATE POWERS AND REMEDIES - PARTICULARLY COMMON-LAW TORT
AND TRADITIONAL CRIMINAL SANCTIONS.    RATHER THAN MANDATE OUSTER OF
STATE REGULATIONS, SEVERAL PROVISIONS OF THE COMMUNICATIONS ACT SUGGEST
A CONGRESSIONAL DESIGN TO LEAVE STANDING VARIOUS FORMS OF STATE
REGULATION, INCLUDING THE FORM EMBODIED IN THE NEW MEXICO STATUTE. 
FIRST, THE ACT CONTAINS A "SAVING CLAUSE," 47 U.S.C. SEC. 414,
PROVIDING THAT "NOTHING IN THIS CHAPTER CONTAINED SHALL IN ANY WAY
ABRIDGE OR ALTER THE REMEDIES NOW EXISTING AT COMMON LAW OR BY STATUTE,
BUT THE PROVISIONS OF THIS CHAPTER ARE IN ADDITION TO SUCH REMEDIES." 
OF COURSE SUCH A GENERAL PROVISION DOES NOT RESOLVE SPECIFIC PROBLEMS,
ARROW TRANSPORTATION CO. V. SOUTHERN R. CO., 372 U.S. 658, 671, N. 22,
BUT ITS INCLUSION IN THE STATUTE PLAINLY IS INCONSISTENT WITH
CONGRESSIONAL DISPLACEMENT OF THE STATE STATUTE UNLESS A FINDING OF
THAT MEANING IS UNAVOIDABLE.  (FN22) SECOND, THE STATUTORY REGULATION
OF RADIO AND TELEVISION BROADCASTING IS FAR LESS COMPREHENSIVE THAN THE
REGULATION IN THE VERY SAME TITLE OF TELEPHONE AND TELEGRAPH
FACILITIES, FEDERAL COMMUNICATIONS COMM'N V. SANDERS BROS. RADIO
STATION, 309 U.S. 470, 474 - YET EVEN AS TO THOSE MEANS OF
COMMUNICATIONS SOME SUBJECTS AND REMEDIES ARE SAVED TO STATE
REGULATION.  FINALLY, CONGRESS HAS ENACTED DETAILED REGULATIONS OF SOME
BROADCASTING PRACTICES (NOT INCLUDING THAT REGULATED BY THE NEW MEXICO
STATUTE) - E.G., THE MANNER IN WHICH SPONSORSHIP MUST BE IDENTIFIED AND
ANNOUNCED, 47 U.S.C. SEC. 317; THE UTTERING OF ANY "OBSCENE, INDECENT,
OR PROFANE LANGUAGE" OVER THE AIR, 18 U.S.C. SEC. 1464; AND THE
TRANSMISSION OF COMMUNICATIONS KNOWN TO CONTAIN FRAUDULENT MATTER, 18
U.S.C. SEC. 1343; CF. 47 U.S.C. SEC. 509.  WHILE THE FAILURE EXPRESSLY
TO REGULATE NONDECEPTIVE ADVERTISING SURELY DOES NOT DEPRIVE THE FCC OF
ALL SUCH JURISDICTION, THAT FAILURE ARGUES AGAINST A CONGRESSIONAL
DESIGN THAT STATE REGULATION WAS TO BE OUSTED.  CF. FEDERAL
COMMUNICATIONS COMM'N V. AMERICAN BROADCASTING CO., 347 U.S. 284. 

THIS BRINGS ME TO THE THIRD TEST - WHETHER AS A PRACTICAL MATTER
"BOTH REGULATIONS CAN BE ENFORCED WITHOUT IMPAIRING THE FEDERAL
SUPERINTENDENCE OF THE FIELD  ...  ."  FLORIDA LIME & AVOCADO GROWERS,
INC., V. PAUL, SUPRA, AT 142.  IT IS THE APPLICATION OF THIS CRITERION
WHICH REVEALS THE BASIC DIFFERENCE BETWEEN THIS CASE AND WDAY.  WE HELD
THERE THAT THE STRONG FEDERAL INTEREST REPRESENTED BY THE "EQUAL TIME"
OBLIGATION WHICH SEC. 315 IMPOSES UPON BROADCASTERS WITH RESPECT TO
POLITICAL CANDIDATES WOULD BE FRUSTRATED IF NOT ALTOGETHER DEFEATED BY
THE SURVIVAL OF STATE REMEDIES AGAINST THE BROADCASTER FOR ALLEGEDLY
DEFAMATORY POLITICAL BROADCASTS.  THUS THE CONFLICT IN OPERATION
BETWEEN THE FEDERAL AND STATE LAWS WHICH CONVERGED IN THAT CASE MADE IT
INEVITABLE THAT THE STATE LAW SHOULD YIELD IN THE INTERESTS OF A
PARTICULAR FEDERAL REGULATORY SCHEME. 

THE INSTANT CASE, BY CONTRAST, PRESENTS NO SUCH CONFLICT OR
DISSONANCE.  THE NEW MEXICO LAW IS ONE DESIGNED PRINCIPALLY TO PROTECT
THE STATE'S CONSUMERS AGAINST A LOCAL EVIL BY LOCAL APPLICATION TO
FORBID CERTAIN FORMS OF ADVERTISING IN ALL MASS MEDIA.  SUCH
LEGISLATION, WHETHER CONCERNED WITH THE HEALTH AND SAFETY OF CONSUMERS,
OR WITH THEIR PROTECTION AGAINST FRAUD AND DECEPTION, EMBODIES A
TRADITIONAL STATE INTEREST OF THE SORT WHICH OUR DECISIONS HAVE
CONSISTENTLY RESPECTED.  RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218,
230.  NOR IS SUCH LEGISLATION REQUIRED TO YIELD SIMPLY BECAUSE IT MAY
IN SOME DEGREE RESTRICT THE ACTIVITIES OF ONE WHO HOLDS A FEDERAL
LICENSE.  CF. HURON PORTLAND CEMENT CO. V. DETROIT, 362 U.S. 440, 447
448. 

A CONCLUSION THAT THE STATE REGULATION IS OUSTED BY THE FEDERAL
REQUIRES, UNDER THIS THIRD TEST, A SHOWING OF CONFLICT EITHER IN
PURPOSE OR IN OPERATION BETWEEN THE STATE AND FEDERAL REGULATIONS
INVOLVED.  THE CONTRARY OF SUCH A SHOWING IS MADE HERE, FOR THE FCC, IN
DETERMINING WHETHER A LICENSEE'S OPERATION HAS SERVED THE PUBLIC
INTEREST, CONSIDERS WHETHER HE HAS COMPLIED WITH STATE AND LOCAL
REGULATIONS GOVERNING ADVERTISING (FN23) - IN OTHER WORDS, THE
COMMISSION ACCORDS IMPORTANT DEFERENCE TO THE CONTINUED OPERATION OF
STATE LAW IN THIS FIELD.  MOREOVER, THE NATIONAL ASSOCIATION OF
BROADCASTERS HAS ALSO CONSISTENTLY COUNSELED OBEDIENCE TO STATE LAW ON
SUCH MATTERS.  THE ASSOCIATION, IN ITS EXTENSIVE CODES OF GOOD
PRACTICES FOR BOTH RADIO AND TELEVISION, UNMISTAKABLY ENJOINS EACH
MEMBER TO "REFUSE THE FACILITIES OF HIS STATION TO ANY ADVERTISER WHERE
HE HAS GOOD REASON TO DOUBT THE INTEGRITY OF THE ADVERTISER, THE TRUTH
OF THE ADVERTISING REPRESENTATIONS, OR THE COMPLIANCE OF THE ADVERTISER
WITH THE SPIRIT AND PURPOSE OF ALL APPLICABLE LEGAL REQUIREMENTS";
(FN24) THE TELEVISION CODE, MOREOVER, EXPRESSLY ENJOINS:  "DILIGENCE
SHOULD BE EXERCISED TO THE END THAT ADVERTISING COPY ACCEPTED  ...
COMPLIES WITH PERTINENT FEDERAL, STATE AND LOCAL LAWS."  (FN25) 

FINALLY, A PRACTICAL CONSIDERATION MILITATES STRONGLY AGAINST GIVING
THE FEDERAL STATUTE PREEMPTIVE EFFECT IN THE ABSENCE OF A CLEAR
CONGRESSIONAL MANDATE.  EVEN IF THE FCC IS GENERALLY ABLE AND WILLING
TO REGULATE ADVERTISING ABUSES, THE AGENCY WOULD UNDERSTANDABLY DESIRE
TO SHARE WITH STATE AGENCIES THE RESPONSIBILITY FOR POLICING THE MYRIAD
LOCAL AND OCCASIONAL VIOLATIONS OF THE CANONS OF ADVERTISING. 
OTHERWISE THE BURDEN MIGHT WELL BECOME SO HEAVY AS TO PRODUCE A "NO
MAN'S LAND," CF. GUSS V. UTAH LABOR BORAD, 353 U.S. 1, IN WHICH THERE
WOULD BE AT BEST SELECTIVE POLICING OF THE VARIOUS ADVERTISING ABUSES
AND EXCESSES WHICH ARE NOW VERY EXTENSIVELY REGULATED BY STATE LAW. 
(FN26)  THAT COULD ONLY MEAN A PARTIAL EXEMPTION OF RADIO AND
TELEVISION, ALONE AMONG THE MEDIA, FROM LOCAL REGULATIONS AND A DENIAL
OF THE PROTECTION WHICH CONSUMERS RIGHTLY EXPECT FROM GOVERNMENT. 
(FN27)

                          III. 

OUR HOLDING TODAY INTIMATES NO VIEW OF THE CONSTITUTIONALITY OF
SEVERAL OTHER SUPERFICIALLY SIMILAR FORMS OF STATE REGULATION OF
BROADCASTING.  FIRST, NOTHING HERE SAID SUGGESTS THAT A SYSTEM OF STATE
REGULATION, ALTHOUGH NOT IN DIRECT CONFLICT WITH FEDERAL LAW, WOULD
PASS MUSTER IF IT WERE SO PERVASIVE AND SO BURDENSOME UPON BROADCASTERS
AS TO INTERFERE SUBSTANTIALLY WITH THE OVERALL PURPOSES OF FEDERAL
REGULATION.  CF. ALLEN B. DUMONT LABS.  V. CARROLL, SUPRA.  SECOND,
NOTHING SAID ANSWERS THE PROBLEM OF THE SITUATION, FACTUALLY CLOSER TO
THAT AT BAR BUT LEGALLY QUITE DISTINCT, WHICH WOULD BE PRESENTED IF A
STATE IN WHICH NATIONWIDE NETWORK MATERIAL ORIGINATES SOUGHT TO
RESTRICT NETWORK ADVERTISING UNDER A STATUTE ENACTED FOR THE PROTECTION
ONLY OF THAT STATE'S CONSUMERS.  SUCH REGULATION MIGHT WELL EXCEED THE
SCOPE OF THE STATE'S LEGITIMATE INTEREST AND INVOLVE A CONSTITUTIONALLY
ILLEGITIMATE ATTEMPT TO CONTROL COMMUNICATIONS BEYOND ITS BORDERS.  CF.
BIBB V. NAVAJO FREIGHT LINES, INC., 359 U.S. 520; SOUTHERN PACIFIC CO.
V. ARIZONA, 325 U.S. 761, 775.  THIRD, NOTHING SAID HERE MAY BE READ TO
SUSTAIN THE CONSTITUTIONALITY OF APPLICATIONS OF LOCAL ADVERTISING
REGULATIONS WHICH THREATEN TO MAKE IT IMPOSSIBLE FOR A LOCAL STATION TO
TRANSMIT NETWORK BROADCASTS BECAUSE OF THEIR SPONSORSHIP.  (FN28)
WHILE THE STATE'S INTEREST MIGHT BE NO DIFFERENT FROM THAT PROTECTED BY
THIS NEW MEXICO STATUTE, THE MORE DRASTIC EFFECT OF THE REGULATION UPON
THE EXERCISE OF THE BROADCASTER'S FEDERAL LICENSE AND HIS ACCESS TO
NETWORK MATERIAL MIGHT WELL REQUIRE A DIFFERENT RESULT.  ALL THAT THE
COURT DECIDES TODAY IS THAT THIS NEW MEXICO STATUTE MAY
CONSTITUTIONALLY BE ENFORCED AGAINST RADIO BROADCASTERS EQUALLY WITH
OTHER NEWS MEDIA DOING BUSINESS IN NEW MEXICO. 

FN1  SEE H.R. REP. NO. 1800, 86TH CONG., 2D SESS. 16 ("THE PRINCIPAL
ADMINISTRATIVE SANCTIONS WHICH THE FCC IS PRESENTLY AUTHORIZED TO
INVOKE AGAINST LICENSEES WHO FLOUT THE LAW ARE LICENSE REVOCATION AND
CEASE AND DESIST ORDERS.  REVOCATION, OF COURSE, AMOUNTS TO A DEATH
SENTENCE FOR THE LICENSEE.  IT MAY ALSO HAVE A SERIOUS EFFECT UPON THE
COMMUNITY SERVED BY THE LICENSEE.  BECAUSE OF ITS SEVERITY, IT HAS
SELDOM IF EVER BEEN INVOKED.").  SEE ALSO, E.G., SMEAD, FREEDOM OF
SPEECH BY RADIO AND TELEVISION (1959), 3; NOTE, STATE REGULATION OF
RADIO AND TELEVISION, 73 HARV. L. REV. 386, 390 (1959); NOTE, BROADCAST
LICENSEE'S PAST CONDUCT AS A DETERMINANT OF THE PUBLIC INTEREST, 23 U.
OF PITT.  L. REV. 157, 160 (1961).  THE COMMENT OF ONE AUTHOR IS
PARTICULARLY APPOSITE TO THE QUESTION OF THIS CASE:  "THE GREAT
RELUCTANCE OF THE COMMISSION TO EXERCISE ITS POWER OF REVOCATION, ITS
LACK OF POWER TO SUSPEND LICENSES AND ITS RECOGNITION OF THE IMPORTANCE
OF COMMERCIAL ADVERTISING TO RADIO BROADCASTING, MAKE IT CUSTOMARY FOR
BROADCAST ADVERTISING TO BE CONSIDERED BY THE COMMISSION ONLY ON
APPLICATIONS FOR RENEWAL OF STATION LICENSES."  2 SOCOLOW, THE LAW OF
RADIO BROADCASTING (1939), 1005. 

NOT ONLY WAS THE DRASTIC NATURE OF THE "DEATH SENTENCE" A DETERRENT
TO ITS APPLICATION AGAINST LESSER VIOLATIONS - IN ADDITION, IT WAS
SUGGESTED THAT LICENSING CONTROLS CONSTITUTED AT BEST ONLY INDIRECT
REGULATION OF THE PARTIES PRIMARILY AT FAULT IN CASES OF ADVERTISING
EXCESSES OR ABUSES - THE NETWORKS AND THE SPONSORS THEMSELVES - AND
WERE THEREFORE INEQUITABLE AS WELL AS UNDULY HARSH.  SEE DECEPTIVE
PRACTICES IN THE BROADCASTING MEDIA, DECEMBER 30, 1959, 19 PIKE &
FISCHER RADIO REG. 1901, 1918; NOTE, THE REGULATION OF ADVERTISING, 56
COL. L. REV. 1018, 1049 (1956). 

FN2  THE ATTORNEY GENERAL, IN HIS LETTER TO THE PRESIDENT, SUMMARIZED
HIS RECOMMENDATION AS FOLLOWS: 

"SECOND, AS A PRACTICAL MATTER, THE ONE SANCTION EXPRESSLY CONFERRED
BY STATUTE UPON THE FEDERAL COMMUNICATIONS COMMISSION FOR USE AGAINST A
BROADCAST LICENSEE WHO FAILS TO OPERATE IN THE PUBLIC INTEREST IS TO
WITHDRAW HIS BROADCASTING LICENSE PERMANENTLY - A SANCTION SO SEVERE
THAT IT HAS BEEN IMPOSED ONLY RARELY.  THE FEDERAL COMMUNICATIONS
COMMISSION SHOULD BE EXPRESSLY AUTHORIZED ALSO TO IMPOSE LESS SEVERE
SANCTIONS FOR ACTIONS VIOLATING THE COMMUNICATIONS ACT OR REGULATIONS
ISSUED PURSUANT TO IT.  SUCH SANCTIONS, FOR EXAMPLE, COULD INCLUDE
TEMPORARY SUSPENSION OR CONDITIONAL LICENSES."  DECEPTIVE PRACTICES IN
THE BROADCASTING MEDIA, REPORT TO THE PRESIDENT BY THE ATTORNEY
GENERAL, DECEMBER 30, 1959, 19 PIKE & FISCHER RADIO REG. 1901, 1905. 
SEE ALSO, FOR THE COMMISSION'S VIEW PRIOR TO 1960, HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
ON S. 1333, 80TH CONG., 1ST SESS. 14, 51. 

FN3  H.R. REP. NO. 1800, 86TH CONG., 2D SESS. 17; SEE ALSO S. REP.
NO. 1857, 86TH CONG., 2D SESS. 4, 8-10.  IN ADDITION TO THE THREE
SANCTIONS PROVIDED BY THE COMMUNICATIONS ACT AMENDMENTS OF 1960, THE
HOUSE BILL HAD ALSO ORIGINALLY PROVIDED FOR A COMMISSION POWER TO
SUSPEND LICENSES FOR MINOR VIOLATIONS, FOR PERIODS NOT TO EXCEED 10
DAYS.  THE SENATE COMMITTEE, HOWEVER, RECOMMENDED AGAINST THE PROVISION
FOR SUSPENSION, AND IT WAS DROPPED FROM THE FINAL BILL.  SEE GENERALLY,
CONCERNING THE SCOPE AND PROVISIONS OF THE 1960 AMENDMENTS, ENFORCEMENT
PORVISIONS OF THE COMMUNICATIONS ACT, 18 FED. COMMUNICATIONS B.J. 45
(1963). 

FN4  SEE 28 F.C.C. ANN. REP. 47-48 (1962); NEW YORK TIMES, JULY 14,
1961, P. 37, COL. 2.  ALTHOUGH UNDER THE COMMUNICATIONS ACT OF 1934 THE
COMMISSION PRESUMABLY POSSESSED THE POWER TO ISSUE LICENSES FOR TERMS
SHORTER THAN THE STATUTORY MAXIMUM, A FORMAL RULE PROVIDED THAT MAXIMUM
PERIOD LICENSES WOULD BE REGULARLY GRANTED.  THE PURPOSE OF THE
AMENDMENT WAS, THEREFORE, SIMPLY TO REAFFIRM THE EXISTENCE OF THE POWER
TO ISSUE LICENSES FOR LESS THAN THE STATUTORY THREE-YEAR MAXIMUM.  SEE
H.R. REP. NO. 1800, 86TH CONG., 2D SESS. 8-9. 

FN5  SEE 28 F.C.C. ANN. REP. 46-47 (1962).  AT LEAST ONE OF THE
FORFEITURE PROCEEDINGS REPORTED BY THE COMMISSION IN ITS MOST RECENT
REPORT CONCERNED THE ADVERTISING PRACTICES OF A LICENSEE, WHO PAID A
FORFEITURE OF $5,000.  SEE ID., AT 54. 

FN6  SEE 27 F.C.C. ANN. REP. 37, 40 (1961).  ALTHOUGH PROVISION WAS
MADE FOR CEASE-AND-DESIST ORDERS IN 1952, SEE 66 STAT. 717, UNTIL THE
1960 AMENDMENT THIS SANCTION WAS INVOKED ONLY IN CASES INVOLVING
TECHNICAL VIOLATIONS. 

FN7  SCHWARTZ, ANTITRUST AND THE FCC:  THE PROBLEM OF NETWORK
DOMINANCE, 107 U. OF PA.  L. REV. 753, 769 (1959). 

FN8  SEE 2 F.C.C. ANN. REP. 19 (1936); 4 F.C.C. ANN. REP. 69 (1938);
7 F.C.C. ANN. REP.  27 (1941); SMEAD, FREEDOM OF SPEECH BY RADIO AND
TELEVISION (1959), 30 AND N. 63; NOTE, THE REGULATION OF ADVERTISING,
56 COL. L. REV. 1018, 1048 (1956).  ONE AUTHOR HAS SUGGESTED THAT "THE
NET RESULT HAS BEEN REGULATION OF PROGRAMMING BY RAISED EYEBROW." 
NOTE, BROADCAST LICENSEE'S PAST CONDUCT AS A DETERMINANT OF THE PUBLIC
INTEREST, 23 U. OF PITT.  L. REV.  157, 170 (1961).  IT HAS ALSO BEEN
NOTED THAT SPEECHES AND INFORMAL STATEMENTS BY INDIVIDUAL COMMISSIONERS
HAVE OFTEN HAD SIGNIFICANT IMPACT UPON PROGRAMMING AND OTHER ACTIVITIES
OF LICENSEES.  NOTE, TELEVISION PROGRAMMING, COMMUNICATION RESEARCH,
AND THE FCC, 23 U. OF PITT.  L. REV. 993, 996 (1962). 

FN9  WOLL, ADMINISTRATIVE LAW:  THE INFORMAL PROCESS (1963), 139. 

FN10  SEE EMERY, BROADCASTING AND GOVERNMENT:  RESPONSIBILITIES AND
REGULATIONS (1961), 11-13; MOSER AND LAVINE, RADIO AND THE LAW (1947),
SECS. 42, 43; PERRY, WEAK SPOTS IN THE AMERICAN SYSTEM OF BROADCASTING,
177 ANNALS AM. ACAD.  POL.  & SOC. SCI.  22, 24-25 (1935). 

FN11  QUOTED IN FEDERAL COMMUNICATIONS COMMISSION, PUBLIC SERVICE
RESPONSIBILITY OF BROADCAST LICENSEES (1946), 41. 

FN12  IBID.  THE COMMISSION EXPLAINED ITS REFUSAL TO PROHIBIT ALL
DIRECT ADVERTISING AS FOLLOWS: "THE COMMISSION IS NOT FULLY CONVINCED
THAT IT HAS HEARD BOTH SIDES OF THE MATTER, BUT IS WILLING TO CONCEDE
THAT IN SOME LOCALITIES THE QUOTING OF DIRECT MERCHANDISE PRICES MAY
SERVE AS A SORT OF LOCAL MARKET, AND IN THAT COMMUNITY A SERVICE MAY
THUS BE RENDERED.  THAT SUCH IS NOT THE CASE GENERALLY, HOWEVER, THE
COMMISSION KNOWS FROM THOUSANDS AND THOUSANDS OF LETTERS WHICH IT HAS
HAD FROM ALL OVER THE COUNTRY COMPLAINING OF SUCH PRACTICES."  2 F.R.C.
ANN. REP. 168-169 (1928).    FN13  SEE, E.G., HEARINGS BEFORE SENATE
COMMITTEE ON INTERSTATE COMMERCE ON S. 6, 71ST CONG., 1ST SESS., PT. 5,
P. 192; ID., PT. 6, P. 230.  ONE MAY ONLY SPECULATE WHAT MIGHT HAVE
BEEN THE COURSE OF AMERICAN BROADCASTING HAD SUCH A PROHIBITION BEEN
IMPOSED.  FOR RECENT DIFFICULTIES WHICH SWEDEN HAS EXPERIENCED UNDER A
GENERAL BAN ON RADIO ADVERTISING, SEE NEW YORK TIMES, APRIL 2, 1961, P.
1, COL. 3; ID., APRIL 3, 1961, P. 8, COL. 4. 

FN14  HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S.
6, 71ST CONG., 2D SESS., PT. 13, PP. 1705-1706.  COMPARE DURSTINE, THE
FUTURE OF RADIO ADVERTISING IN THE UNITED STATES, 177 ANNALS AM. ACAD. 
POL.  & SOC. SCI.  147, 149 (1935).  FN15  OPINION NO. 32, 1928-1929
OPINION OF THE GENERAL COUNSEL, FEDERAL RADIO COMMISSION, 77, 81-82. 
THE GENERAL COUNSEL ALSO REJECTED THE CONTENTION THAT SUCH
CONSIDERATION OF A LICENSEE'S PAST ADVERTISING PRACTICES MIGHT AMOUNT
TO CENSORSHIP, PARTLY ON THE GROUND OF A "NECESSARY DISTINCTION BETWEEN
RESTRICTIONS PLACED UPON THE TRANSMISSION OF INTELLIGENCE FOR WHICH
THERE IS A GENERAL PUBLIC DEMAND AND NEED AND LIMITATIONS IMPOSED UPON
BROADCASTING PROPAGANDA, INTENDED TO OBTAIN COMMERCIAL SUCCESS, FOR
WHICH THERE IS NO SUCH DEMAND OR NEED."  ID., AT 81. 

SHORTLY AFTER THE ISSUANCE OF THE GENERAL COUNSEL'S OPINION, THE
CHAIRMAN OF THE FEDERAL RADIO COMMISSION WAS ASKED BY SENATOR DILL
DURING HIS APPEARANCE BEFORE THE SENATE COMMERCE COMMITTEE WHETHER HE
THOUGHT THE COMMISSION HAD SUFFICIENT POWER "THROUGH ITS POWER OF
REGULATION AND ITS DETERMINATION OF PUBLIC INTEREST TO HANDLE
OBJECTIONABLE ADVERTISING."  THE CHAIRMAN REPLIED, "I THINK SO, SENATOR
DILL, BECAUSE WE HAVE HAD LITTLE TROUBLE ABOUT IT, EVEN WITHOUT DIRECT
POWER.  WE HAVE BEEN ABLE TO IMPROVE SOME PROGRAMS."  HEARINGS BEFORE
SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 6, 71ST CONG., 1ST SESS.,
PT. 6, P. 230. 

FN16  SEE, E.G., KNICKERBOCKER BORADCASTING CO., 2 F.C.C. 76; WSBC,
INC., 2 F.C.C. 293; HAMMOND-CALUMET BROADCASTING CORP., 2 F.C.C. 321;
OAK LEAVES BROADCASTING STATION, INC., 2 F.C.C. 298; FARMERS & BANKERS
LIFE INS. CO., 2 F.C.C. 455.  IN BEN S. MCGLASHAN, 2 F.C.C.  145, 152,
THE COMMISSION DISMISSED AS "MANIFESTLY CONTRARY TO THE LAW" THE
SUGGESTION THAT "LICENSEES SHOULD NOT HAVE THE DUTY OF EXAMINING INTO
THE PROPRIETY OF ADVERTISING TO BE BROADCAST  ...  ."  CF. KFKB
BROADCASTING ASSN., INC., V. FEDERAL RADIO COMM'N, 60 APP.  D.C. 79, 47
F.2D 670.  SEE GENERALLY MOSER AND LAVINE, RADIO AND THE LAW (1947),
SEC. 43; NOTE, GOVERNMENTAL REGULATION OF THE PROGRAM CONTENT OF
TELEVISION BROADCASTING, 19 GEO.  WASH. L. REV. 312, 317 (1951). 

FN17  FEDERAL COMMUNICATIONS COMMISSION, PUBLIC SERVICE
RESPONSIBILITY OF BROADCAST LICENSEES (1946), 47. 

FN18  ID., AT 56. 

FN19  SEE, E.G., WREC BROADCASTING SERVICE, 10 PIKE & FISCHER RADIO
REG. 1323, 1350-1351, 1358-1359; LIBERTY TELEVISION, INC., 30 F.C.C.
411, 414; 28 F.C.C. ANN. REP. 54-55 (1962).  CF. PUBLIC NOTICE, "DOUBLE
BILLING" PRACTICES, MARCH 7, 1962, 23 PIKE & FISCHER RADIO REG. 175;
SAM MORRIS, 11 F.C.C. 197; HALE AND HALE, COMPETITION OR CONTROL II:
RADIO AND TELEVISION BROADCASTING, 107 U. OF PA. L. REV. 585, 603-607
(1959). 

FN20  LIAISON BETWEEN FCC AND FTC RELATING TO FALSE AND MISLEADING
RADIO AND TV ADVERTISING, FEB. 21, 1957, 14 PIKE & FISCHER RADIO REG.
1262. 

THE TRADE COMMISSION FIRST ASSUMED RESPONSIBILITY FOR RADIO
ADVERTISING IN 1934, SEE 2 SOCOLOW, THE LAW OF RADIO BROADCASTING
(1939), SECS. 540-542; DAVIS, REGULATION OF RADIO ADVERTISING, 177
ANNALS AM. ACAD.  POL.  & SOC. SCI.  154, 156-157 (1935).  THE FCC ALSO
INSTITUTED DURING THE 1930'S A POLICY OF REFERRING MISLEADING AND
DECEPTIVE ADVERTISING COMPLAINTS TO THE TRADE COMMISSION.  SEE 6 F.C.C.
ANN. REP. 55 (1940); 7 F.C.C. ANN. REP.  27 (1941).  SINCE 1957 THERE
HAS BEEN A PARTICULARLY CLOSE LIAISON BETWEEN THE TWO AGENCIES WITH
RESPECT TO ADVERTISING MATTERS, SEE DECEPTIVE PRACTICES IN THE
BROADCASTING MEDIA, 19 PIKE & FISCHER RADIO REG. 1901, 1923; 27 F.C.C.
ANN. REP. 40 (1961).  THE FCC HAS ALSO ANNOUNCED A POLICY OF KEEPING
ITS LICENSEES INFORMED OF APPLICABLE RULINGS OF THE TRADE COMMISSION,
28 F.C.C. ANN. REP. 44 (1962).  FOR SURVEYS OF THE TRADE COMMISSION'S
PRESENT REGULATION OF RADIO AND TELEVISION ADVERTISING, SEE GENERALLY
EMERY, BROADCASTING AND GOVERNMENT: RESPONSIBILITIES AND REGULATIONS
(1961), 58-65; SMEAD, FREEDOM OF SPEECH BY RADIO AND TELEVISION (1959),
31-33; 37 NOTRE DAME LAW.  524 (1962); 36 ST. JOHN'S L. REV.  274
(1962); 10 U.C.L.A.L. REV. 417 (1963). 

IN VIEW OF THE ACTIVITY OF THE FEDERAL TRADE COMMISSION IN MATTERS OF
RADIO AND TELEVISION ADVERTISING, IT MIGHT BE ARGUED THAT THE SUPREMACY
CLAUSE QUESTION SHOULD BE JUDGED BY THE POWERS AND SANCTIONS OF THAT
AGENCY INSTEAD OF BY THOSE OF THE FCC.  SEVERAL ANSWERS MAY BE MADE TO
THAT SUGGESTION.  FIRST, THE REMEDIAL POWERS OF THE TRADE COMMISSION
ARE ONLY VERY RARELY ACCORDED PREEMPTIVE EFFECT, E.G., BEDNO V. FAST, 6
WIS. 2D 471, 95 N.W.2D 396.  SECOND, BROADCASTERS AND PUBLISHERS ARE
EXPRESSLY EXEMPTED FROM THE CRIMINAL PENALTIES AGAINST FALSE AND
DECEPTIVE ADVERTISING, 15 U.S.C. SEC. 54(B).  THUS, FTC REGULATION OF
ADVERTISING OVER THE AIR TENDS TO BE INDIRECT, THE SANCTIONS BEING
IMPOSED UPON THE SPONSOR, AND, OCCASIONALLY, UPON THE ADVERTISING
AGENCY.  SEE, E.G., COLGATE-PALMOLIVE CO. V. FEDERAL TRADE COMM'N, 310
F.2D 89.  THIRD, IT APPEARS THAT THE FTC IS NEITHER EQUIPPED FOR NOR
DESIROUS OF ASSUMING EXCLUSIVE RESPONSIBILITY FOR ESSENTIALLY LOCAL
ADVERTISING ABUSES, PARTICULARLY WHERE THE STATE REGULATION COMPLEMENTS
THE FEDERAL PROHIBITIONS.  SEE COMMENT, STATE CONTROL OF BAIT
ADVERTISING, 69 YALE L.J. 830, 845-846 (1960).  FINALLY, FEDERAL
PREEMPTION WOULD THREATEN TO DISRUPT UNDULY THE EXISTING SCHEMES OF
STATE AND LOCAL REGULATION OF ADVERTISING IN AN AREA IN WHICH NO
OVERRIDING NEED FOR FEDERAL UNIFORMITY APPEARS, NOTE, THE REGULATION OF
ADVERTISING, 56 COL. L. REV. 1018, 1076 (1956), AND IN WHICH THERE MAY
EVEN BE SOME DOUBT AS TO THE FTC'S JURISDICTION, SEE 29 GEO. WASH. L.
REV. 808, 811-813 (1961). 

FN21  COMPARE, E.G., KROEGER V. STAHL, 248 F.2D 121, WITH, E.G.,
WESTERN UNION TELEGRAPH CO. V. STATE, 207 GA. 675, 63 S.E.2D 878;
NATIONAL BROADCASTING CO. V. BOARD OF PUBLIC UTILITY COMM'RS, 25 F.
SUPP. 761; RCA COMMUNICATIONS, INC., V. PATCHOGUE BROADCASTING CO.,
INC., 19 PIKE & FISCHER RADIO REG. 2071.  SEE GENERALLY EMERY,
BROADCASTING AND GOVERNMENT: RESPONSIBILITIES AND REGULATIONS (1961),
72-73; NOTE, STATE REGULATION OF RADIO LOTTERIES, 1952 WIS. L. REV.
177, 180-181. 

FN22  SEE NOTE, STATE REGULATION OF RADIO AND TELEVISION, 73 HARV. L.
REV. 386, 387-388 (1959); NOTE, GOVERNMENTAL REGULATION OF THE PROGRAM
CONTENT OF TELEVISION BROADCASTING, 19 GEO. WASH. L. REV. 312, 322-323
(1951). 

FN23  SEE LETTER OF ACTING CHAIRMAN PAUL A. WALKER TO SENATOR EDWIN
C. JOHNSON, AUTUST 11, 1949, 5 PIKE & FISCHER RADIO REG. 593, 594. 

FN24  QUOTED IN EMERY, BROADCASTING AND GOVERNMENT:  RESPONSIBILITIES
AND REGULATIONS (1961), 430, 445. 

FN25  ID., AT 445. 

FN26  SEE GENERALLY MOSER AND LAVINE, RADIO AND THE LAW (1947), C. V;
NOTE, STATE REGULATION OF RADIO LOTTERIES, 1952 WIS. L. REV. 177; STATE
LEGISLATION AFFECTING RADIO AND TELEVISION, 1951-1952, 12 FED.
COMMUNICATIONS B.J. 261 (1952); NOTE, STATE CONTROL OF BAIT
ADVERTISING, 69 YALE L.J. 830 (1960). 

FN27  THIS IS NOT TO SUGGEST THAT A STATUTE WHICH FORMALLY EXEMPTED
CERTAIN MEDIA FROM PENALTIES UPON CERTAIN TYPES OF ADVERTISING WOULD
NECESSARILY REPRESENT ANY VIOLATION OF THE EQUAL PROTECTION CLAUSE. 
SEE PACKER CORP. V. UTAH, 285 U.S. 105, 108-110.  CF. CALIF.  BUS.  &
PROF. CODE SEC. 17502, WHICH WAS AMENDED IN 1951 TO EXEMPT FROM THE
PROHIBITIONS AGAINST FALSE AND DECEPTIVE ADVERTISING A NEWSPAPER OR
RADIO STATION WHICH "BROADCASTS OR PUBLISHES AN ADVERTISEMENT IN GOOD
FAITH, WITHOUT KNOWLEDGE OF ITS FALSE, DECEPTIVE, OR MISLEADING
CHARACTER." 

FN28  SEE NOTE, STATE REGULATION OF RADIO AND TELEVISION, 73 HARV. L.
REV. 386, 393-395 (1959). 
..END :





















ROSENBERG V. FLEUTI 374 U.S. 449 


NO. 248.  ARGUED MARCH 26, 1963 - DECIDED JUNE 17, 1963 - 302 F.2D 652,
JUDGMENT VACATED AND CASE REMANDED. 


RESPONDENT IS AN ALIEN WHO WAS ADMITTED TO THIS COUNTRY FOR PERMANENT
RESIDENCE IN 1952 AND HAS BEEN HERE CONTINUOUSLY SINCE, EXCEPT FOR A
VISIT OF "ABOUT A COUPLE HOURS" DURATION TO ENSENADA, MEXICO, IN 1956. 
AFTER ADMINISTRATIVE PROCEEDINGS, HE WAS ORDERED DEPORTED ON THE GROUND
THAT, AT THE TIME OF HIS RETURN IN 1956, HE WAS "AFFLICTED WITH
PSYCHOPATHIC PERSONALITY," WITHIN THE MEANING OF SEC. 212(A)(4) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, AND, THEREFORE, WAS EXCLUDABLE
UNDER SEC. 241(A)(1).  THE DISTRICT COURT SUSTAINED THE DEPORTATION
ORDER; BUT THE COURT OF APPEALS SET IT ASIDE ON THE GROUND THAT, AS
APPLIED TO RESPONDENT, SEC. 212(A)(4) WAS UNCONSTITUTIONALLY VAGUE. 
HELD: 

1.  THIS COURT OUGHT NOT TO PASS ON THE CONSTITUTIONALITY OF SEC.
212(A)(4), AS APPLIED TO RESPONDENT, UNLESS SUCH ADJUDICATION IS
UNAVOIDABLE; AND THERE IS A THRESHOLD QUESTION AS TO WHETHER
RESPONDENT'S RETURN TO THIS COUNTRY FROM HIS AFTERNOON TRIP TO MEXICO
IN 1956 CONSTITUTED AN "ENTRY" WITHIN THE MEANING OF SEC. 101(A)(13) OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952, SO AS TO SUBJECT HIM TO
DEPORTATION FOR A CONDITION EXISTING AT THAT TIME BUT NOT AT THE TIME
OF HIS ORIGINAL ADMISSION BEFORE THE 1952 ACT BECAME EFFECTIVE.  PP.
451-452. 

2.  IT WOULD BE INCONSISTENT WITH THE GENERAL AMELIORATIVE PURPOSE OF
CONGRESS IN ENACTING SEC. 101(A)(13) TO HOLD THAT AN INNOCENT CASUAL
AND BRIEF EXCURSION BY A RESIDENT ALIEN OUTSIDE THIS COUNTRY'S BORDERS
WAS "INTENDED" AS A DEPARTURE DISRUPTIVE OF HIS RESIDENT ALIEN STATUS
SO AS TO SUBJECT HIM TO THE CONSEQUENCES OF AN "ENTRY" INTO THE COUNTRY
ON HIS RETURN.  PP. 452-462. 

3.  BECAUSE ATTENTION WAS NOT PREVIOUSLY FOCUSED UPON THE APPLICATION
OF SEC. 101(A)(13) TO THIS CASE, AND THE RECORD CONTAINS NO DETAILED
DESCRIPTION OR CHARACTERIZATION OF RESPONDENT'S TRIP TO MEXICO IN 1956,
THE JUDGMENT BELOW IS VACATED AND THE CASE IS REMANDED FOR FURTHER
CONSIDERATION OF THE APPLICATION OF THAT SECTION IN LIGHT OF THIS
OPINION.  PP. 462-463. 

ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, V.
FLEUTI. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

RESPONDENT FLEUTI IS A SWISS NATIONAL WHO WAS ORIGINALLY ADMITTED TO
THIS COUNTRY FOR PERMANENT RESIDENCE ON OCTOBER 9, 1952, AND HAS BEEN
HERE CONTINUOUSLY SINCE EXCEPT FOR A VISIT OF "ABOUT A COUPLE HOURS"
DURATION TO ENSENADA, MEXICO, IN AUGUST 1956.  THE IMMIGRATION AND
NATURALIZATION SERVICE, OF WHICH PETITIONER ROSENBERG IS THE LOS
ANGELES DISTRICT DIRECTOR, SOUGHT IN APRIL 1959 TO DEPORT RESPONDENT ON
THE GROUND THAT AT THE TIME OF HIS RETURN IN 1956 HE "WAS WITHIN ONE OR
MORE OF THE CLASSES OF ALIENS EXCLUDABLE BY THE LAW EXISTING AT THE
TIME OF SUCH ENTRY," IMMIGRATION AND NATIONALITY ACT OF 1952, SEC.
241(A)(1), 66 STAT.  204, 8 U.S.C. SEC. 1251(A)(1).  IN PARTICULAR, THE
SERVICE ALLEGED THAT RESPONDENT HAD BEEN "CONVICTED OF A CRIME
INVOLVING MORAL TURPITUDE," SEC. 212(A)(9), 66 STAT. 182, 8 U.S.C.
SEC. 1182(A)(9), BEFORE HIS 1956 RETURN, AND HAD FOR THAT REASON BEEN
EXCLUDABLE WHEN HE CAME BACK FROM HIS BRIEF TRIP TO MEXICO.  A
DEPORTATION ORDER ISSUED ON THAT GROUND, BUT IT WAS DISCOVERED A FEW
MONTHS LATER THAT THE ORDER WAS INVALID, BECAUSE THE CRIME WAS A PETTY
OFFENSE NOT OF THE MAGNITUDE ENCOMPASSED WITHIN THE STATUTE.  THE
DEPORTATION PROCEEDINGS WERE THEREUPON REOPENED AND A NEW CHARGE WAS
LODGED AGAINST RESPONDENT:  THAT HE HAD BEEN EXCLUDABLE AT THE TIME OF
HIS 1956 RETURN AS AN ALIEN "AFFLICTED WITH PSYCHOPATHIC PERSONALITY,"
SEC. 212(A)(4), 66 STAT. 182, 8 U.S.C. SEC. 1182(A)(4), BY REASON OF
THE FACT THAT HE WAS A HOMOSEXUAL.  DEPORTATION WAS ORDERED ON THIS
GROUND AND FLEUTI'S APPEAL TO THE BOARD OF IMMIGRATION APPEALS WAS
DISMISSED, WHEREUPON HE BROUGHT THE PRESENT ACTION FOR DECLARATORY
JUDGMENT AND REVIEW OF THE ADMINISTRATIVE ACTION.  IT WAS STIPULATED
THAT AMONG THE ISSUES TO BE LITIGATED WAS THE QUESTION WHETHER SEC.
212(A)(4) IS "UNCONSTITUTIONAL AS BEING VAGUE AND AMBIGUOUS."  THE
TRIAL COURT REJECTED RESPONDENT'S CONTENTIONS IN THIS REGARD AND IN
GENERAL, AND GRANTED THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT.   ON
APPEAL, HOWEVER, THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT SET ASIDE THE DEPORTATION ORDER AND ENJOINED ITS ENFORCEMENT,
HOLDING THAT AS APPLIED TO FLEUTI SEC. 212(A)(4) WAS UNCONSTITUTIONALLY
VAGUE IN THAT HOMOSEXUALITY WAS NOT SUFFICIENTLY ENCOMPASSED WITHIN THE
TERM "PSYCHOPATHIC PERSONALITY."  302 F.2D 652. 

THE GOVERNMENT PETITIONED THIS COURT FOR CERTIORARI, WHICH WE GRANTED
IN ORDER TO CONSIDER THE CONSTITUTIONALITY OF SEC. 212(A)(4) AS APPLIED
TO RESPONDENT FLEUTI.  371 U.S. 859.  UPON CONSIDERATION OF THE CASE,
HOWEVER, AND IN ACCORDANCE WITH THE LONG-ESTABLISHED PRINCIPLE THAT "WE
OUGHT NOT TO PASS ON QUESTIONS OF CONSTITUTIONALITY  ...  UNLESS SUCH
ADJUDICATION IS UNAVOIDABLE," SPECTOR MOTOR SERVICE, INC., V.
MCLAUGHLIN, 323 U.S. 101, 105; SEE ALSO ALMA MOTOR CO. V. TIMKEN
DETROIT AXLE CO., 329 U.S. 129; NEESE V. SOUTHERN R. CO., 350 U.S. 77;
MACKEY V. MENDOZA-MARTINEZ, 362 U.S. 384, WE HAVE CONCLUDED THAT THERE
IS A THRESHOLD ISSUE OF STATUTORY INTERPRETATION IN THE CASE, THE
EXISTENCE OF WHICH OBVIATES DECISION HERE AS TO WHETHER SEC. 212(A)(4)
IS CONSTITUTIONAL AS APPLIED TO RESPONDENT. 

THAT ISSUE IS WHETHER FLEUTI'S RETURN TO THE UNITED STATES FROM HIS
AFTERNOON TRIP TO ENSENADA, MEXICO, IN AUGUST 1956 CONSTITUTED AN
"ENTRY" WITHIN THE MEANING OF SEC. 101(A)(13) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 167, 8 U.S.C. SEC. 1101(A)(13), SUCH
THAT FLEUTI WAS EXCLUDABLE FOR A CONDITION EXISTING AT THAT TIME EVEN
THOUGH HE HAD BEEN PERMANENTLY AND CONTINUOUSLY RESIDENT IN THIS
COUNTRY FOR NEARLY FOUR YEARS PRIOR THERETO.  SECTION 101(A)(13), WHICH
HAS NEVER BEEN DIRECTLY CONSTRUED BY THIS COURT IN RELATION TO THE KIND
OF BRIEF ABSENCE FROM THE COUNTRY THAT CHARACTERIZES THE PRESENT CASE,
(FN1) READS AS FOLLOWS: 

"THE TERM 'ENTRY' MEANS ANY COMING OF AN ALIEN INTO THE UNITED
STATES, FROM A FOREIGN PORT OR PLACE OR FROM AN OUTLYING POSSESSION,
WHETHER VOLUNTARILY OR OTHERWISE, EXCEPT THAT AN ALIEN HAVING A LAWFUL
PERMANENT RESIDENCE IN THE UNITED STATES SHALL NOT BE REGARDED AS
MAKING AN ENTRY INTO THE UNITED STATES FOR THE PURPOSES OF THE
IMMIGRATION LAWS IF THE ALIEN PROVES TO THE SATISFACTION OF THE
ATTORNEY GENERAL THAT HIS DEPARTURE TO A FOREIGN PORT OR PLACE OR TO AN
OUTLYING POSSESSION WAS NOT INTENDED OR REASONABLY TO BE EXPECTED BY
HIM OR HIS PRESENCE IN A FOREIGN PORT OR PLACE OR IN AN OUTLYING
POSSESSION WAS NOT VOLUNTARY:  PROVIDED, THAT NO PERSON WHOSE DEPARTURE
FROM THE UNITED STATES WAS OCCASIONED BY DEPORTATION PROCEEDINGS,
EXTRADITION, OR OTHER LEGAL PROCESS SHALL BE HELD TO BE ENTITLED TO
SUCH EXCEPTION." 

THE QUESTION WE MUST CONSIDER, MORE SPECIFICALLY, IS WHETHER FLEUTI'S
SHORT VISIT TO MEXICO CAN POSSIBLY BE REGARDED AS A "DEPARTURE TO A
FOREIGN PORT OR PLACE  ...  THAT WAS NOT INTENDED," WITHIN THE MEANING
OF THE EXCEPTION TO THE TERM "ENTRY" CREATED BY THE STATUTE.  WHETHER
THE 1956 RETURN WAS WITHIN THAT EXCEPTION IS CRUCIAL, BECAUSE FLEUTI
CONCEDEDLY WAS NOT EXCLUDABLE AS A "PSYCHOPATHIC PERSONALITY" AT THE
TIME OF HIS 1952 ENTRY.  (FN2) 

THE DEFINITION OF "ENTRY" AS APPLIED FOR VARIOUS PURPOSES IN OUR
IMMIGRATION LAWS WAS EVOLVED JUDICIALLY, ONLY BECOMING ENCASED IN
STATUTORY FORM WITH THE INCLUSION OF SEC. 101(A)(13) IN THE 1952 ACT. 
IN THE EARLY CASES THERE WAS DEVELOPED A JUDICIAL DEFINITION OF "ENTRY"
WHICH HAD HARSH CONSEQUENCES FOR ALIENS.  THIS VIEWPOINT WAS EXPRESSED
MOST RESTRICTIVELY IN UNITED STATES EX REL. VOLPE V. SMITH, 289 U.S.
422, IN WHICH THE COURT, SPEAKING THROUGH MR. JUSTICE MCREYNOLDS,
UPHELD DEPORTATION OF AN ALIEN WHO, AFTER 24 YEARS OF RESIDENCE IN THIS
COUNTRY FOLLOWING A LAWFUL ENTRY, WAS HELD TO BE EXCLUDABLE ON HIS
RETURN FROM "A BRIEF VISIT TO CUBA," ID., AT 423.  THE COURT STATED
THAT "THE WORD 'ENTRY'  ...  INCLUDES ANY COMING OF AN ALIEN FROM A
FOREIGN COUNTRY INTO THE UNITED STATES WHETHER SUCH COMING BE THE FIRST
OR ANY SUBSEQUENT ONE."  ID., AT 425.  (FN3)  ALTHOUGH CASES IN THE
LOWER COURTS APPLYING THE STRICT RE-ENTRY DOCTRINE TO ALIENS WHO HAD
LEFT THE COUNTRY FOR BRIEF VISITS TO CANADA OR MEXICO OR ELSEWHERE WERE
NUMEROUS, (FN4) MANY COURTS APPLIED THE DOCTRINE IN SUCH INSTANCES WITH
EXPRESS RELUCTANCE AND EXPLICIT RECOGNITION OF ITS HARSH CONSEQUENCES,
(FN5) AND THERE WERE A FEW INSTANCES IN WHICH DISTRICT JUDGES REFUSED
TO HOLD THAT ALIENS WHO HAD BEEN ABSENT FROM THE COUNTRY ONLY BRIEFLY
HAD MADE "ENTRIES" UPON THEIR RETURN.  (FN6) 

REACTION TO THE SEVERE EFFECTS PRODUCED BY ADHERENCE TO THE STRICT
DEFINITION OF "ENTRY" RESULTED IN A SUBSTANTIAL INROAD BEING MADE UPON
THAT DEFINITION IN 1947 BY A DECISION OF THE SECOND CIRCUIT AND A
DECISION OF THIS COURT.  THE SECOND CIRCUIT, IN AN OPINION BY JUDGE
LEARNED HAND, REFUSED TO ALLOW A DEPORTATION WHICH DEPENDED ON THE
ALIEN'S BEING REGARDED AS HAVING RE-ENTERED THIS COUNTRY AFTER HAVING
TAKEN AN OVERNIGHT SLEEPER FROM BUFFALO TO DETROIT ON A ROUTE LYING
THROUGH CANADA.  DIPASQUALE V. KARNUTH, 158 F.2D 878.  JUDGE HAND
RECOGNIZED THAT THE ALIEN "ACQUIESCED IN WHATEVER ROUTE THE RAILROAD
MIGHT CHOOSE TO PULL THE CAR."  ID., AT 879, BUT HELD THAT IT WOULD BE
TOO HARSH TO IMPUTE THE CARRIER'S INTENT TO THE ALIEN, THERE BEING NO
SHOWING THAT THE ALIEN KNEW HE WOULD BE ENTERING CANADA.  "WERE IT
OTHERWISE," JUDGE HAND WENT ON, "THE ALIEN WOULD BE SUBJECTED WITHOUT
MEANS OF PROTECTING HIMSELF TO THE FORFEITURE OF PRIVILEGES WHICH MAY
BE, AND OFTEN ARE, OF THE MOST GRAVE IMPORTANCE TO HIM."  IBID.  IF
THERE WERE A DUTY UPON ALIENS TO INQUIRE ABOUT A CARRIER'S ROUTE, IT
"WOULD IN PRACTICE BECOME A TRAP, WHOSE CLOSING UPON THEM WOULD HAVE NO
RATIONAL RELATION TO ANYTHING THEY COULD FORESEE AS SIGNIFICANT.  WE
CANNOT BELIEVE THAT CONGRESS MEANT TO SUBJECT THOSE WHO HAD ACQUIRED A
RESIDENCE, TO THE SPORT OF CHANCE, WHEN THE INTERESTS AT STAKE MAY BE
SO MOMENTOUS."  IBID.  CONCLUDING, JUDGE HAND SAID THAT IF THE ALIEN'S
RETURN WERE HELD TO BE AN "ENTRY" UNDER THE CIRCUMSTANCES, HIS "VESTED
INTEREST IN HIS RESIDENCE" WOULD: 

"BE FORFEITED BECAUSE OF PERFECTLY LAWFUL CONDUCT WHICH HE COULD NOT
POSSIBLY HAVE SUPPOSED WOULD RESULT IN ANYTHING OF THE SORT.  CAPRICE
IN THE INCIDENCE OF PUNISHMENT IS ONE OF THE INDICIA OF TYRANNY, AND
NOTHING CAN BE MORE DISINGENUOUS THAN TO SAY THAT DEPORTATION IN THESE
CIRCUMSTANCES IS NOT PUNISHMENT.  IT IS WELL THAT WE SHOULD BE FREE TO
RID OURSELVES OF THOSE WHO ABUSE OUR HOSPITALITY; BUT IT IS MORE
IMPORTANT THAT THE CONTINUED ENJOYMENT OF THAT HOSPITALITY ONCE
GRANTED, SHALL NOT BE SUBJECT TO MEANINGLESS AND IRRATIONAL HAZARDS." 
IBID. 

LATER THE SAME YEAR THIS COURT, BECAUSE OF A CONFLICT BETWEEN
DIPASQUALE AND DEL GUERCIO V. DELGADILLO, 159 F.2D 130 (C.A. 9TH CIR.
1947), GRANTED CERTIORARI IN THE LATTER CASE AND REVERSED A DEPORTATION
ORDER AFFECTING AN ALIEN WHO, UPON RESCUE AFTER HIS INTERCOSTAL
MERCHANT SHIP WAS TORPEDOED IN THE CARIBBEAN DURING WORLD WAR II, HAD
BEEN TAKEN TO CUBA TO RECUPERATE FOR A WEEK BEFORE RETURNING TO THIS
COUNTRY.  DELGADILLO V. CARMICHAEL, 332 U.S. 388.  THE COURT POINTED
OUT THAT IT WAS "THE EXIGENCIES OF WAR, NOT HIS VOLUNTARY ACT," ID., AT
391, WHICH PUT THE ALIEN ON FOREIGN SOIL, ADDING THAT "WE MIGHT AS WELL
HOLD THAT IF HE HAD BEEN KIDNAPPED AND TAKEN TO CUBA, HE MADE A
STATUTORY 'ENTRY' ON HIS VOLUNTARY RETURN.  RESPECT FOR LAW DOES NOT
THRIVE ON CAPTIOUS INTERPRETATIONS."  IBID.  SINCE "THE STAKES ARE
INDEED HIGH AND MOMENTOUS FOR THE ALIEN WHO HAS ACQUIRED HIS RESIDENCE
HERE," IBID., THE COURT HELD THAT: 

"WE WILL NOT ATTRIBUTE TO CONGRESS A PURPOSE TO MAKE HIS RIGHT TO
REMAIN HERE DEPENDENT ON CIRCUMSTANCES SO FORTUITOUS AND CAPRICIOUS AS
THOSE UPON WHICH THE IMMIGRATION SERVICE HAS HERE SEIZED.  THE HAZARDS
TO WHICH WE ARE NOW ASKED TO SUBJECT THE ALIEN ARE TOO IRRATIONAL TO
SQUARE WITH THE STATUTORY SCHEME."  IBID. 

THE INCREASED PROTECTION OF RETURNING RESIDENT ALIENS WHICH WAS
BROUGHT ABOUT BY THE DELGADILLO DECISION, BOTH IN ITS RESULT AND IN ITS
EXPRESS APPROVAL OF DI PASQUALE, WAS REFLECTED IN AT LEAST TWO
SUBSEQUENT LOWER-COURT DECISIONS PRIOR TO THE ENACTMENT OF SEC.
101(A)(13).  IN YUKIO CHAI V. BONHAM, 165 F.2D 207 (C.A. 9TH CIR.
1947), THE COURT HELD THAT NO "ENTRY" HAD OCCURRED AFTER A SHIP
CARRYING A RESIDENT ALIEN BACK FROM SEASONAL CANNERY WORK IN ALASKA
MADE AN UNSCHEDULED STOP IN VANCOUVER, B.C., AND IN CARMICHAEL V.
DELANEY, 170 F.2D 239 (C.A. 9TH CIR. 1948), THE COURT HELD THAT A
RESIDENT ALIEN RETURNING FROM WARTIME SERVICE WITH THE UNITED STATES
MARITIME SERVICE DURING WHICH HE HAD STOPPED AT MANY FOREIGN PORTS MADE
NO "ENTRY" BECAUSE ALL OF THE MOVEMENTS OF THE SHIP TO WHICH HE HAD
BEEN ASSIGNED WERE PURSUANT TO NAVY ORDERS.  (FN7) 

IT WAS IN LIGHT OF ALL OF THESE DEVELOPMENTS IN THE CASE LAW THAT
SEC. 101(A)(13) WAS INCLUDED IN THE IMMIGRATION LAWS WITH THE 1952
REVISION.  AS THE HOUSE AND SENATE COMMITTEE REPORTS, THE RELEVANT
MATERIAL FROM WHICH IS QUOTED IN THE MARGIN, (FN8) MAKE CLEAR, THE
MAJOR CONGRESSIONAL CONCERN IN CODIFYING THE DEFINITION OF "ENTRY" WAS
WITH "THE STATUS OF AN ALIEN WHO HAS PREVIOUSLY ENTERED THE UNITED
STATES AND RESIDED THERIN  ...  ."  THIS CONCERN WAS IN THE DIRECTION
OF AMELIORATING THE HARSH RESULTS VISITED UPON RESIDENT ALIENS BY THE
RULE OF UNITED STATES EX REL. VOLPE V. SMITH, SUPRA, AS IS INDICATED BY
THE RECOGNITION THAT "THE COURTS HAVE DEPARTED FROM THE RIGIDITY OF
...  THE EARLIER RULE," AND THE STATEMENT THAT "THE BILL  ...  GIVES
DUE RECOGNITION TO THE JUDICIAL PRECEDENTS."  IT MUST BE RECOGNIZED, OF
COURSE, THAT THE ONLY LIBERALIZING DECISIONS TO WHICH THE REPORTS
REFERRED SPECIFICALLY WERE DI PASQUALE AND DELGADILLO, AND THAT THERE
IS NO INDICATION ONE WAY OR THE OTHER IN THE LEGISLATIVE HISTORY OF
WHAT CONGRESS THOUGHT ABOUT THE PROBLEM OF RESIDENT ALIENS WHO LEAVE
THE COUNTRY FOR INSIGNIFICANTLY SHORT PERIODS OF TIME.  NEVERTHELESS,
IT REQUIRES BUT BRIEF CONSIDERATION OF THE POLICIES UNDERLYING SEC 101
(A) (13), AND OF CERTAIN OTHER ASPECTS OF THE RIGHTS OF RETURNING
RESIDENT ALIENS, TO CONCLUDE THAT CONGRESS, IN APPROVING THE JUDICIAL
UNDERMINING OF VOLPE, SUPRA, AND THE RELIEF BROUGHT ABOUT BY THE DI
PASQUALE AND DELGADILLO DECISIONS, COULD NOT HAVE MEANT TO LIMIT THE
MEANING OF THE EXCEPTIONS IT CREATED IN SEC 101 (A) (13) TO THE FACTS
OF THOSE TWO CASES. 

THE MOST BASIC GUIDE TO CONGRESSIONAL INTENT AS TO THE REACH OF THE
EXCEPTIONS IS THE ELOQUENT LANGUAGE OF DI PASQUALE AND DELGADILLO
THEMSELVES, BEGINNING WITH THE RECOGNITION THAT THE "INTERESTS AT
STAKE" FOR THE RESIDENT ALIEN ARE "MOMENTOUS," 158 F.2D, AT 879, AND
THAT "THE STAKES ARE INDEED HIGH AND MOMENTOUS FOR THE ALIEN WHO HAS
ACQUIRED HIS RESIDENCE HERE," 332 U.S., AT 391.  THIS GENERAL PREMISE
OF THE TWO DECISIONS IMPELLED THE MORE GENERAL CONCLUSION THAT "IT IS
... IMPORTANT THAT THE CONTINUED ENJOYMENT OF  ...  OUR HOSPITALITY
ONCE GRANTED, SHALL NOT BE SUBJECT TO MEANINGLESS AND IRRATIONAL
HAZARDS."  158 F.2D, AT 879.  SEE ALSO DELGADILLO, SUPRA, AT 391. 
COUPLING THESE ESSENTIAL PRINCIPLES OF THE TWO DECISIONS EXPLICITLY
APPROVED BY CONGRESS IN ENACTING SEC. 101(A)(13) WITH THE MORE GENERAL
OBSERVATION, APPEARING IN DELGADILLO AS WELL AS ELSEWHERE, (FN9) THAT
"DEPORTATION CAN BE THE EQUIVALENT OF BANISHMENT OR EXILE," IT IS
DIFFICULT TO CONCEIVE THAT CONGRESS MEANT ITS APPROVAL OF THE
LIBERALIZATION WROUGHT BY DI PASQUALE AND DELGADILLO TO BE INTERPRETED
MECHANISTICALLY TO APPLY ONLY TO CASES PRESENTING FACTUAL SITUATIONS
IDENTICAL TO WHAT WAS INVOLVED IN THOSE TWO DECISIONS.    THE IDEA THAT
THE EXCEPTIONS TO SEC. 101(A)(13) SHOULD BE READ NONRESTRICTIVELY IS
GIVEN ADDITIONAL CREDENCE BY THE WAY IN WHICH THE IMMIGRATION LAWS
DEFINE WHAT CONSTITUTES "CONTINUOUS RESIDENCE" FOR AN ALIEN WISHING TO
BE NATURALIZED.  SECTION 316 OF THE 1952 ACT, 66 STAT. 242-243, 8
U.S.C. SEC. 1427, WHICH LIBERALIZED PREVIOUS LAW IN SOME RESPECTS,
PROVIDES THAT AN ALIEN WHO WISHES TO SEEK NATURALIZATION DOES NOT BEGIN
TO ENDANGER THE FIVE YEARS OF "CONTINUOUS RESIDENCE" IN THIS COUNTRY
WHICH MUST PRECEDE HIS APPLICATION UNTIL HE REMAINS OUTSIDE THE COUNTRY
FOR SIX MONTHS, AND DOES NOT DAMAGE HIS POSITION BY CUMULATIVE
TEMPORARY ABSENCES UNLESS THEY TOTAL OVER HALF OF THE FIVE YEARS
PRECEDING THE FILING OF HIS PETITION FOR NATURALIZATION.  THIS
ENLIGHTENED CONCEPT OF WHAT CONSTITUTES A MEANINGFUL INTERRUPTION OF
THE CONTINUOUS RESIDENCE WHICH MUST SUPPORT A PETITION FOR
NATURALIZATION, REFLECTING AS IT DOES A CONGRESSIONAL JUDGMENT THAT AN
ALIEN'S STATUS IS NOT NECESSARILY TO BE ENDANGERED BY HIS ABSENCE FROM
THE COUNTRY, STRENGTHENS THE FOUNDATION UNDERLYING A BELIEF THAT THE
EXCEPTIONS TO SEC. 101(A)(13) SHOULD BE READ TO PROTECT RESIDENT ALIENS
WHO ARE ONLY BRIEFLY ABSENT FROM THE COUNTRY.  OF FURTHER, ALTHOUGH
LESS SPECIFIC, EFFECT IN THIS REGARD IN THIS COURT'S HOLDING IN KWONG
HAI CHEW V. COLDING, 344 U.S. 590, THAT THE RETURNING RESIDENT ALIEN IS
ENTITLED AS A MATTER OF DUE PROCESS TO A HEARING ON THE CHARGES
UNDERLYING ANY ATTEMPT TO EXCLUDE HIM, A HOLDING WHICH SUPPORTS THE
GENERAL PROPOSITION THAT A RESIDENT ALIEN WHO LEAVES THIS COUNTRY IS TO
BE REGARDED AS RETAINING CERTAIN BASIC RIGHTS. 

GIVEN THAT THE CONGRESSIONAL PROTECTION OF RETURNING RESIDENT ALIENS
IN SEC. 101(A)(13) IS NOT TO BE WOODENLY CONSTRUED, WE TURN
SPECIFICALLY TO CONSTRUCTION OF THE EXCEPTIONS CONTAINED IN THAT
BRIEFLY.  WHAT WE FACE HERE IS ANOTHER HARSH CONSEQUENCE OF THE STRICT
"ENTRY" DOCTRINE WHICH, WHILE NOT GOVERNED DIRECTLY BY DELGADILLO,
NEVERTHELESS CALLS INTO PLAY THE SAME CONSIDERATIONS, PP. 454-456, 458
459, SUPRA, WHICH LED TO THE RESULTS SPECIFICALLY APPROVED IN THE
CONGRESSIONAL COMMITTEE REPORTS.  IT WOULD BE AS "FORTUITOUS AND
CAPRICIOUS," AND AS "IRRATIONAL TO SQUARE WITH THE STATUTORY SCHEME,"
DELGADILLO, SUPRA, AT 391, TO HOLD THAT AN ALIEN MAY NECESSARILY BE
DEPORTED BECAUSE HE FALLS INTO ONE OF THE CLASSES ENUMERATED IN SEC.
212(A) WHEN HE RETURNS FROM "A COUPLE HOURS" VISIT TO MEXICO AS IT
WOULD HAVE BEEN TO UPHOLD THE ORDER OF DEPORTATION IN DELGADILLO. 
CERTAINLY WHEN AN ALIEN LIKE FLEUTI WHO HAS ENTERED THE COUNTRY
LAWFULLY AND HAS ACQUIRED A RESIDENCE HERE STEPS ACROSS A BORDER AND,
IN EFFECT, STEPS RIGHT BACK, SUBJECTING HIM TO EXCLUSION FOR A
CONDITION FOR WHICH HE COULD NOT HAVE BEEN DEPORTED HAD HE REMAINED IN
THE COUNTRY SEEMS TO BE PLACING HIM AT THE MERCY OF THE "SPORT OF
CHANCE" AND THE "MEANINGLESS AND IRRATIONAL HAZARDS" TO WHICH JUDGE
HAND ALLUDED.  DI PASQUALE, SUPRA, AT 879.  IN MAKING SUCH A CASUAL
TRIP THE ALIEN WOULD SELDOM BE AWARE THAT HE WAS POSSIBLY WALKING INTO
A TRAP, FOR THE INSIGNIFICANCE OF A BRIEF TRIP TO MEXICO OR CANADA
BEARS LITTLE RATIONAL RELATION TO THE PUNITIVE CONSEQUENCE OF
SUBSEQUENT EXCLUDABILITY.  THERE ARE, OF COURSE, VALID POLICY REASONS
FOR SAYING THAT AN ALIEN WISHING TO RETAIN HIS CLASSIFICATION AS A
PERMANENT RESIDENT OF THIS COUNTRY IMPERILS HIS STATUS BY INTERRUPTING
HIS RESIDENCE TOO FREQUENTLY OR FOR AN OVERLY LONG PERIOD OF TIME, BUT
WE DISCERN NO RATIONAL POLICY SUPPORTING APPLICATION OF A RE-ENTRY
LIMITATION IN ALL CASES IN WHICH A RESIDENT ALIEN CROSSES AN
INTERNATIONAL BORDER FOR A SHORT VISIT.   (FN10)  CERTAINLY IF THAT
TRIP IS INNOCENT, CASUAL, AND BRIEF, IT IS CONSISTENT WITH ALL THE
DISCERNIBLE SIGNS OF CONGRESSIONAL PURPOSE TO HOLD THAT THE "DEPARTURE
...  WAS NOT INTENDED" WITHIN THE MEANING AND AMELIORATIVE INTENT OF
THE EXCEPTION TO SEC. 101(A)(13).  CONGRESS UNQUESTIONABLY HAS THE
POWER TO EXCLUDE ALL CLASSES OF UNDESIRABLE ALIENS FROM THIS COUNTRY,
AND THE COURTS ARE CHARGED WITH ENFORCING SUCH EXCLUSION WHEN CONGRESS
HAS DIRECTED IT, BUT WE DO NOT THINK CONGRESS INTENDED TO EXCLUDE
ALIENS LONG RESIDENT IN THIS COUNTRY AFTER LAWFUL ENTRY WHO HAVE MERELY
STEPPED ACROSS AN INTERNATIONAL BORDER AND RETURNED IN "ABOUT A COUPLE
OF HOURS."  SUCH A HOLDING WOULD BE INCONSISTENT WITH THE GENERAL
PURPOSE OF CONGRESS IN ENACTING SEC. 101(A)(13) TO AMELIORATE THE
SEVERE EFFECTS OF THE STRICT "ENTRY" DOCTRINE. 

WE CONCLUDE, THEN, THAT IT EFFECTUATES CONGRESSIONAL PURPOSE TO
CONSTRUE THE INTENT EXCEPTION TO SEC. 101(A)(13) AS MEANING AN INTENT
TO DEPART IN A MANNER WHICH CAN BE REGARDED AS MEANINGFULLY
INTERRUPTIVE OF THE ALIEN'S PERMANENT RESIDENCE.  ONE MAJOR FACTOR
RELEVANT TO WHETHER SUCH INTENT CAN BE INFERRED IS, OF COURSE, THE
LENGTH OF TIME THE ALIEN IS ABSENT.  ANOTHER IS THE PURPOSE OF THE
VISIT, FOR IF THE PURPOSE OF LEAVING THE COUNTRY IS TO ACCOMPLISH SOME
OBJECT WHICH IS ITSELF CONTRARY TO SOME POLICY REFLECTED IN OUR
IMMIGRATION LAWS, IT WOULD APPEAR THAT THE INTERRUPTION OF RESIDENCE
THEREBY OCCURRING WOULD PROPERLY BE REGARDED AS MEANINGFUL.  STILL
ANOTHER IS WHETHER THE ALIEN HAS TO PROCURE ANY TRAVEL DOCUMENTS IN
ORDER TO MAKE HIS TRIP, SINCE THE NEED TO OBTAIN SUCH ITEMS MIGHT WELL
CAUSE THE ALIEN TO CONSIDER MORE FULLY THE IMPLICATIONS INVOLVED IN HIS
LEAVING THE COUNTRY.  ALTHOUGH THE OPERATION OF THESE AND OTHER
POSSIBLY RELEVANT FACTORS REMAINS TO BE DEVELOPED "BY THE GRADUAL
PROCESS OF JUDICIAL INCLUSION AND EXCLUSION," DAVIDSON V. NEW ORLEANS,
96 U.S. 97, 104, WE DECLARE TODAY SIMPLY THAT AN INNOCENT, CASUAL, AND
BRIEF EXCURSION BY A RESIDENT ALIEN OUTSIDE THIS COUNTRY'S BORDERS MAY
NOT HAVE BEEN "INTENDED" AS A DEPARTURE DISRUPTIVE OF HIS RESIDENT
ALIEN STATUS AND THEREFORE MAY NOT SUBJECT HIM TO THE CONSEQUENCES OF
AN "ENTRY" INTO THE COUNTRY ON HIS RETURN.  THE MORE CIVILIZED
APPLICATION OF OUR IMMIGRATION LAWS GIVEN RECOGNITION BY CONGRESS IN
SEC. 101(A)(13) AND OTHER PROVISIONS OF THE 1952 ACT PROTECTS THE
RESIDENT ALIEN FROM UNSUSPECTED RISKS AND UNINTENDED CONSEQUENCES OF
SUCH A WHOLLY INNOCENT ACTION.  RESPONDENT HERE, SO FAR AS APPEARS FROM
THE RECORD, IS AMONG THOSE TO BE PROTECTED.  HOWEVER, BECAUSE ATTENTION
WAS NOT PREVIOUSLY FOCUSED UPON THE APPLICATION OF SEC. 101(A)(13) TO
THE CASE, THE RECORD CONTAINS NO DETAILED DESCRIPTION OR
CHARACTERIZATION OF HIS TRIP TO MEXICO IN 1956, EXCEPT FOR HIS
TESTIMONY THAT HE WAS GONE "ABOUT A COUPLE HOURS," AND THAT HE WAS
"JUST VISITING; TAKING A TRIP."  THAT BEING THE CASE, WE DEEM IT
APPROPRIATE TO REMAND THE CASE FOR FURTHER CONSIDERATION OF THE
APPLICATION OF SEC. 101(A)(13) TO THIS CASE IN LIGHT OF OUR DISCUSSION
HEREIN.  IF IT IS DETERMINED THAT RESPONDENT DID NOT "INTEND" TO DEPART
IN THE SENSE CONTEMPLATED BY SEC. 101(A)(13), THE DEPORTATION ORDER
WILL NOT STAND AND ADJUDICATION OF THE CONSTITUTIONAL ISSUE REACHED BY
THE COURT BELOW WILL BE OBVIATED.  THE JUDGMENT OF THE COURT OF APPEALS
IS THEREFORE VACATED AND THE CASE REMANDED WITH DIRECTIONS THAT THE
PARTIES BE GIVEN LEAVE TO AMEND THEIR PLEADINGS TO PUT IN ISSUE THE
QUESTION OF "ENTRY" IN ACCORDANCE WITH THE FOREGOING, AND FOR FURTHER
PROCEEDINGS CONSISTENT HEREWITH.  SO ORDERED. 

FN1  ALTHOUGH THERE IS DICTUM ON THE POINT OF BONETTI V. ROGERS, 356
U.S. 691, 698-699, WE REGARD IT AS NOT FULLY CONSIDERED, SINCE
RESOLUTION OF THE ISSUE WAS NOT CRUCIAL TO DECISION OF THE CASE. 
COMPARE SHAUGHNESSY V. UNITED STATES EX REL. MEZEI, 345 U.S. 206, 213. 

FN2  THE 1952 ACT BECAME EFFECTIVE ON DECEMBER 24, 1952, AND FLEUTI
ENTERED THE COUNTRY FOR PERMANENT RESIDENCE ON OCTOBER 9, 1952, A FACT
WHICH IS OF SIGNIFICANCE BECAUSE SEC.  241(A)(1) OF THE ACT ONLY
COMMANDS THE DEPORTATION OF ALIENS "EXCLUDABLE BY THE LAW EXISTING AT
THE TIME OF SUCH ENTRY  ...  ."  HENCE, SINCE RESPONDENT'S
HOMOSEXUALITY DID NOT MAKE HIM EXCLUDABLE BY ANY LAW EXISTING AT THE
TIME OF HIS 1952 ENTRY, IT IS CRITICAL TO DETERMINE WHETHER HIS RETURN
FROM A FEW HOURS IN MEXICO IN 1956 WAS AN "ENTRY" IN THE STATUTORY
SENSE.  IF IT WAS NOT, THE QUESTION WHETHER SEC. 212(A)(4) COULD
CONSTITUTIONALLY BE APPLIED TO HIM NEED NOT BE RESOLVED. 

FN3  PREVIOUS CASES WHICH CONTAIN THE SAME GENERAL KIND OF LANGUAGE,
BUT WHICH ARE DISTINGUISHABLE ON THEIR FACTS, ARE LAPINA V. WILLIAMS,
232 U.S. 78; LEWIS V. FRICK, 233 U.S. 291; UNITED STATES EX REL.
CLAUSSEN V. DAY, 279 U.S. 398; UNITED STATES EX REL.  POLYMERIS V.
TRUDELL, 284 U.S. 279; AND UNITED STATES EX REL. STAPF V. CORSI, 287
U.S. 129.  THE ONLY ONE OF THESE CASES WHICH INVOLVED AN ABSENCE FROM
THE COUNTRY AS EXTREMELY BRIEF AS FLEUTI'S IS LEWIS V. FRICK, AND IN
THAT CASE DEPORTATION WAS PREMISED ON THE FACT THAT ON HIS RETURN FROM
THE TRIP IN ISSUE THE ALIEN HAD SOUGHT TO BRING A WOMAN INTO THE
COUNTRY FOR AN IMMORAL PURPOSE.  233 U.S., AT 297-300. 

FN4  E.G., EX PARTE PARIANOS, 23 F.2D 918 (C.A. 9TH CIR. 1928);
UNITED STATES EX REL.  MEDICH V. BURMASTER, 24 F.2D 57 (C.A. 8TH CIR.
1928); CAHAN V. CARR, 47 F.2D 604 (C.A.  9TH CIR. 1931), CERT. DENIED,
283 U.S. 862; ZURBRICK V. BORG, 47 F.2D 690 (C.A. 6TH CIR. 1931);
TAGUCHI V. CARR, 62 F.2D 307 (C.A. 9TH CIR. 1932); WARD V. DE BARROS,
75 F.2D 34 (C.A. 1ST CIR. 1935); GUARNERI V. KESSLER, 98 F.2D 580 (C.A.
5TH CIR. 1938), CERT. DENIED, 305 U.S. 648; DEL CASTILLO V. CARR, 100
F.2D 338 (C.A. 9TH CIR. 1938); UNITED STATES EX REL.  KOWALENSKI V.
FLYNN, 17 F.2D 524 (D.C.W.D.N.Y. 1927); UNITED STATES EX REL. SIEGEL V.
REIMER, 23 F. SUPP. 643 (D.C.S.D.N.Y.), AFF'D, 97 F.2D 1020 (C.A.2D
CIR. 1938). 

FN5  E.G., JACKSON V. ZURBRICK, 59 F.2D 937 (C.A. 6TH CIR. 1932);
ZURBRICK V. WOODHEAD, 90 F.2D 991 (C.A. 6TH CIR. 1937); UNITED STATES
EX REL. UEBERALL V. WILLIAMS, 187 F.2D 470 (D.C.S.D.N.Y. 1911); GUIMOND
V. HOWES, 9 F.2D 412 (D.C.D. MAINE 1925); EX PARTE PIAZZOLA, 18 F.2D
114 (D.C.W.D.N.Y. 1926). 

FN6  IN RE MICHAEL BONADINO, D.C.W.D.N.Y., UNREPORTED, DEC. 20, 1924;
UNITED STATES EX REL. VALENTI V. KARMUTH, 1 F. SUPP 370 (D.C.N.D.N.Y.
1932); ANNELLO EX REL. ANNELLO V. WARD, 8 F. SUPP. 797 (D.C.D. MASS.
1934). 

FN7 IT SHOULD BE POINTED OUT, HOWEVER, THAT THE NINTH CIRCUIT HAS,
SUBSEQUENT TO THE DECISIONS CITED IN THE TEXT, HELD SPECIFICALLY THAT
LENGTH OF TIME OUTSIDE THE COUNTRY IS STILL IRRELEVANT TO THE QUESTION
OF "ENTRY."  SCHOEPS V. CARMICHAEL, 177 F.2D 391 (C.A.  9TH CIR. 1949),
CERT. DENIED, 339 U.S. 914; PIMENTAL-NAVARRO V. DEL GUERCIO, 256 F.2D
877 (C.A. 9TH CIR. 1958). 

FN8  THE HOUSE AND SENATE COMMITTEE REPORTS PRECEDING ENACTMENT OF
THE BILL CONTAINED THE FOLLOWING RELEVANT PARAGRAPH: 

"SECTION 101(A)(13) DEFINES THE TERM 'ENTRY.'  FREQUENT REFERENCE IS
MADE TO THE TERM 'ENTRY' IN THE IMMIGRATION LAWS, AND MANY CONSEQUENCES
RELATING TO THE ENTRY AND DEPARTURE OF ALIENS FLOW FROM ITS USE, BUT
THE TERM IS NOT PRECISELY DEFINED IN THE PRESENT LAW.  NORMALLY AN
ENTRY OCCURS WHEN THE ALIEN CROSSES THE BORDER OF THE UNITED STATES AND
MAKES A PHYSICAL ENTRY, AND THE QUESTION OF WHETHER AN ENTRY HAS BEEN
MADE IS SUSCEPTIBLE OF A PRECISE DETERMINATION.  HOWEVER, FOR THE
PURPOSES OF DETERMINING THE EFFECT OF A SUBSEQUENT ENTRY UPON THE
STATUS OF AN ALIEN WHO HAS PREVIOUSLY ENTERED THE UNITED STATES AND
RESIDED THEREIN, THE PRECISENESS OF THE TERM 'ENTRY' HAS NOT BEEN FOUND
TO BE AS APPARENT.  EARLIER JUDICIAL CONSTRUCTIONS OF THE TERM IN THE
IMMIGRATION LAWS, AS SET FORTH IN VOLPE V. SMITH (289 U.S. 422 (1933)),
GENERALLY HELD THAT THE TERM 'ENTRY' INCLUDED ANY COMING OF AN ALIEN
FROM A FOREIGN COUNTRY TO THE UNITED STATES WHETHER SUCH COMING BE THE
FIRST OR A SUBSEQUENT ONE.  MORE RECENTLY, THE COURTS HAVE DEPARTED
FROM THE RIGIDITY OF THAT RULE AND HAVE RECOGNIZED THAT AN ALIEN DOES
NOT MAKE AN ENTRY UPON HIS RETURN TO THE UNITED STATES FROM A FOREIGN
COUNTRY WHERE HE HAD NO INTENT TO LEAVE THE UNITED STATES (DI PASQUALE
V. KARNUTH, 158 F.2D 878 (C.C.A.2D 1947)), OR DID NOT LEAVE THE COUNTRY
VOLUNTARILY (DELGADILLO V. CARMICHAEL, 332 U.S. 388 (1947)).  THE BILL
DEFINES THE TERM 'ENTRY' AS PRECISELY AS PRACTICABLE, GIVING DUE
RECOGNITION TO THE JUDICIAL PRECEDENTS.  THUS ANY COMING OF AN ALIEN
FROM A FOREIGN PORT OR PLACE OR AN OUTLYING POSSESSION INTO THE UNITED
STATES IS TO BE CONSIDERED AN ENTRY, WHETHER VOLUNTARY OR OTHERWISE,
UNLESS THE ATTORNEY GENERAL IS SATISFIED THAT THE DEPARTURE OF THE
ALIEN, OTHER THAN A DEPORTEE, FROM THIS COUNTRY WAS UNINTENTIONAL OR
WAS NOT VOLUNTARY."  H.R. REP. NO. 1365, 82D CONG., 2D SESS. 32 (1952);
S. REP. NO. 1137, 82D CONG., 2D SESS. 4 (1952). 

FN9  SEE NG FUNG HO V. WHITE, 259 U.S. 276, 284; BRIDGES V. WIXON,
326 U.S. 135, 147; FONG HAW TAN V. PHELAN, 333 U.S. 6, 10; BARBER V.
GONZALES, 347 U.S. 637, 642-643. 

FN10  COMPARE BERNARD, AMERICAN IMMIGRATION POLICY (1950), 296;
GORDON, WHEN DOES AN ALIEN ENTER THE UNITED STATES?  9 FED. B.J. 248,
250, 258-259 (1948); HOFSTEIN, THE RETURNING RESIDENT ALIEN, 10 INTRA. 
L. REV. 271, 273, 280 (1955); KONVITZ, CIVIL RIGHTS IN IMMIGRATION
(1953), 92; MASLOW, RECASTING OUR DEPORTATION LAW:  PROPOSALS FOR
REFORM, 56 COL. L. REV. 309, 327-329 (1956); REPORT OF THE PRESIDENT'S
COMMISSION ON IMMIGRATION AND NATURALIZATION, WHOM WE SHALL WELCOME
(1953), 179-180, 199-200; NOTE, RIGHTS OF ALIENS IN EXCLUSION
PROCEEDINGS, 3 UTAH L. REV. 349, 350 N. 20 (1953); NOTE, LIMITATIONS ON
CONGRESSIONAL POWER TO DEPORT RESIDENT ALIENS EXCLUDABLE AS PSYCHOPATHS
AT TIME OF ENTRY, 68 YALE L.J. 931, 937-938 N. 25 (1959).    MR.
JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE STEWART AND
MR. JUSTICE WHITE JOIN, DISSENTING. 

I DISSENT FROM THE COURT'S JUDGMENT AND OPINION BECAUSE "STATUTORY
CONSTRUCTION" MEANS TO ME THAT THE COURT CAN CONSTRUE STATUTES BUT NOT
THAT IT CAN CONSTRUCT THEM.  THE LATTER FUNCTION IS RESERVED TO THE
CONGRESS, WHICH CLEARLY SAID WHAT IT MEANT AND UNDOUBTEDLY MEANT WHAT
IT SAID WHEN IT DEFINED "ENTRY" FOR IMMIGRATION PURPOSES AS FOLLOWS: 
"THE TERM 'ENTRY' MEANS ANY COMING OF AN ALIEN INTO THE UNITED STATES,
FROM A FOREIGN PORT OR PLACE OR FROM AN OUTLYING POSSESSION, WHETHER
VOLUNTARILY OR OTHERWISE, EXCEPT THAT AN ALIEN HAVING A LAWFUL
PERMANENT RESIDENCE IN THE UNITED STATES SHALL NOT BE REGARDED AS
MAKING AN ENTRY INTO THE UNITED STATES FOR THE PURPOSES OF THE
IMMIGRATION LAWS IF THE ALIEN PROVES TO THE SATISFACTION OF THE
ATTORNEY GENERAL THAT HIS DEPARTURE TO A FOREIGN PORT OR PLACE OR TO AN
OUTLYING POSSESSION WAS NOT INTENDED OR REASONABLY TO BE EXPECTED BY
HIM OR HIS PRESENCE IN A FOREIGN PORT OR PLACE OR IN AN OUTLYING
POSSESSION WAS NOT VOLUNTARY  ...  ."  8 U.S.C. SEC. 1101(A)(13). 

THAT THIS DEFINITION OF "ENTRY" INCLUDES THE RESPONDENT'S ENTRY AFTER
HIS BRIEF TRIP TO MEXICO IN 1956 IS A CONCLUSION WHICH SEEMS TO ME
INESCAPABLE.  THE CONCLUSION IS COMPELLED BY THE PLAIN MEANING OF THE
STATUTE, ITS LEGISLATIVE HISTORY, AND THE CONSISTENT INTERPRETATION BY
THE FEDERAL COURTS.  INDEED, THE RESPONDENT HIMSELF DID NOT EVEN
QUESTION THAT HIS RETURN TO THE UNITED STATES WAS AN "ENTRY" WITHIN THE
MEANING OF SEC.  101(A)(13).  NONETHELESS, THE COURT HAS REWRITTEN THE
ACT SUA SPONTE, CREATING A DEFINITION OF "ENTRY" WHICH WAS SUGGESTED BY
MANY ORGANIZATIONS DURING THE HEARINGS PRIOR TO ITS ENACTMENT BUT WHICH
WAS REJECTED BY THE CONGRESS.  I BELIEVE THE AUTHORITIES DISCUSSED IN
THE COURT'S OPINION DEMONSTRATE THAT "ENTRY" AS DEFINED IN SEC.
101(A)(13) CANNOT MEAN WHAT THE COURT SAYS IT MEANS, BUT I WILL ADD A
FEW WORDS OF EXPLANATION. 

THE WORD "ENTRY" HAD ACQUIRED A WELL-DEFINED MEANING FOR IMMIGRATION
PURPOSES AT THE TIME THE IMMIGRATION AND NATIONALITY ACT WAS PASSED IN
1952.  THE LEADING CASE WAS UNITED STATES EX REL. VOLPE V. SMITH, 289
U.S. 422 (1933), WHICH HELD THAT AN ALIEN WHO HAD RESIDED CONTINUOUSLY
IN THE UNITED STATES FOR 26 YEARS EXCEPT FOR A BRIEF VISIT TO CUBA MADE
AN "ENTRY" AT THE TIME OF HIS RETURN FROM CUBA.  THE COURT THERE STATED
THAT THE WORD "ENTRY" IN THE IMMIGRATION ACT OF 1917 "INCLUDES ANY
COMING OF AN ALIEN FROM A FOREIGN COUNTRY INTO THE UNITED STATES
WHETHER SUCH COMING BE THE FIRST OR ANY SUBSEQUENT ONE."  ID., AT 425. 
THAT CONCLUSION WAS BASED ON SOUND AUTHORITY, SINCE THE COURT HAD
EARLIER HELD THAT A RESIDENT ALIEN WHO CROSSED THE RIVER FROM DETROIT
TO WINDSOR, CANADA, AND RETURNED ON THE SAME DAY MADE AN "ENTRY" UPON
HIS RETURN.  LEWIS V. FRICK, 233 U.S. 291 (1914). 

THE FEDERAL COURTS IN NUMEROUS CASES WERE CALLED UPON TO APPLY THIS
DEFINITION OF "ENTRY" AND DID SO CONSISTENTLY, SPECIFICALLY RECOGNIZING
THAT THE BREVITY OF ONE'S STAY OUTSIDE THE COUNTRY WAS IMMATERIAL TO
THE QUESTION OF WHETHER HIS RETURN WAS AN "ENTRY."  SEE, E.G., UNITED
STATES EX REL. KOWALENSKI V. FLYNN, 17 F.2D 524 (D.C.W.D.N.Y. 1927);
SCHOEPS V. CARMICHAEL, 177 F.2D 391 (C.A. 9TH CIR. 1949).  A RELATED
BUT OBVIOUSLY DISTINGUISHABLE QUESTION DID CREATE DIFFICULTIES FOR THE
COURTS, HOWEVER, LEADING TO CONFLICTING OPINIONS AMONG THE CIRCUITS AS
TO WHETHER A RESIDENT ALIEN MAKES AN "ENTRY" WHEN HE HAD NO INTENT TO
LEAVE THE COUNTRY OR DID NOT LEAVE VOLUNTARILY.  IT WAS DECIDED BY THIS
COURT IN DELGADILLO V. CARMICHAEL, 332 U.S. 388 (1947), WHICH HELD THAT
AN ALIEN WHOSE SHIP HAD BEEN TORPEDOED AND SUNK, AFTER WHICH HE WAS
RESCUED AND TAKEN TO CUBA FOR A WEEK, DID NOT MAKE AN "ENTRY" ON HIS
RETURN TO THE UNITED STATES.  THE COURT DISCUSSED THE VOLPE CASE BUT
DISTINGUISHED IT AND OTHERS ON THE GROUND THAT "THOSE WERE CASES WHERE
THE ALIEN PLAINLY EXPECTED OR PLANNED TO ENTER A FOREIGN PORT OR
PLACE.  HERE HE WAS CATAPULTED INTO THE OCEAN, RESCUED, AND TAKEN TO
CUBA.  HE HAD NO PART IN SELECTING THE FOREIGN PORT AS HIS
DESTINATION."  ID., AT 390.  THE COURT SPECIFICALLY RELIED ON DI
PASQUALE V. KARNUTH, 158 F.2D 878 (C.A.2D CIR. 1947), WHERE AN ALIEN
WHO HAD RIDDEN A SLEEPING CAR FROM BUFFALO TO DETROIT, WITHOUT
KNOWLEDGE THAT THE TRAIN'S ROUTE WAS THROUGH CANADA, WAS HELD NOT TO
HAVE MADE AN "ENTRY" UPON HIS ARRIVAL IN DETROIT. 

THESE CASES AND OTHERS DISCUSSED BY THE COURT ESTABLISH THE SETTING
IN WHICH THE IMMIGRATION AND NATIONALITY ACT WAS PASSED IN 1952.  THE
HOUSE AND SENATE REPORTS QUOTED BY THE COURT SHOW THAT THE CONGRESS
RECOGNIZED THE COURTS' DIFFICULTY WITH THE RULE THAT "ANY COMING" OF AN
ALIEN INTO THE UNITED STATES WAS AN "ENTRY," EVEN WHEN THE DEPARTURE
FROM THE COUNTRY WAS UNINTENTIONAL OR INVOLUNTARY.  THE REPORTS DISCUSS
THE BROAD RULE OF THE VOLPE CASE AND THE SPECIFIC LIMITATIONS OF THE DI
PASQUALE AND DELGADILLO CASES, CITING THOSE CASES BY NAME, AND CONCLUDE
WITH THE FOLLOWING LANGUAGE: 

"THE BILL DEFINES THE TERM 'ENTRY' AS PRECISELY AS PRACTICABLE,
GIVING DUE RECOGNITION TO THE JUDICIAL PRECEDENTS.  THUS ANY COMING OF
AN ALIEN FROM A FOREIGN PORT OR PLACE OR AN OUTLYING POSSESSION INTO
THE UNITED STATES IS TO BE CONSIDERED AN ENTRY, WHETHER VOLUNTARY OR
OTHERWISE, UNLESS THE ATTORNEY GENERAL IS SATISFIED THAT THE DEPARTURE
OF THE ALIEN, OTHER THAN A DEPORTEE, FROM THIS COUNTRY WAS
UNINTENTIONAL OR WAS NOT VOLUNTARY."  H.R. REP. NO. 1365, 82D CONG., 2D
SESS. 32, S. REP. NO. 1137, 82D CONG., 2D SESS. 4. 

THUS THERE IS NOTHING IN THE LEGISLATIVE HISTORY OR IN THE STATUTE
ITSELF WHICH WOULD EXEMPT THE RESPONDENT'S RETURN FROM MEXICO FROM THE
DEFINITION OF "ENTRY."  RATHER, THE STATUTE IN RETAINING THE DEFINITION
EXPRESSED IN VOLPE SEEMS CLEARLY TO COVER RESPONDENT'S ENTRY, WHICH
OCCURRED AFTER HE KNOWINGLY LEFT THE UNITED STATES IN ORDER TO TRAVEL
TO A CITY IN MEXICO.  THAT THE TRIP MAY HAVE BEEN "INNOCENT, CASUAL,
AND BRIEF" DOES NOT ALTER THE FACT THAT, IN THE WORDS OF THE COURT IN
DELGADILLO, THE RESPONDENT "PLAINLY EXPECTED OR PLANNED TO ENTER A
FOREIGN PORT OR PLACE."  332 U.S., AT 390. 

IT IS TRUE THAT THIS APPLICATION OF THE LAW TO A RESIDENT ALIEN MAY
BE HARSH, BUT HARSHNESS IS A FAR CRY FROM THE IRRATIONALITY CONDEMNED
IN DELGADILLO, SUPRA, AT 391.  THERE AND IN DI PASQUALE CONTRARY
RESULTS WOULD HAVE MEANT THAT A RESIDENT ALIEN, WHO WAS NOT DEPORTABLE
UNLESS HE LEFT THE COUNTRY AND REENTERED, COULD BE DEPORTED AS A RESULT
OF CIRCUMSTANCES EITHER BEYOND HIS CONTROL OR BEYOND HIS KNOWLEDGE. 
HERE, OF COURSE, THERE IS NO CLAIM THAT RESPONDENT DID NOT KNOW HE WAS
LEAVING THE COUNTRY TO ENTER MEXICO AND, SINCE ONE IS PRESUMED TO KNOW
THE LAW, HE KNEW THAT HIS BRIEF TRIP AND REENTRY WOULD RENDER HIM
DEPORTABLE.  THE CONGRESS CLEARLY HAS CHOSEN SO TO APPLY THE LONG
ESTABLISHED DEFINITION, AND THIS COURT CANNOT ALTER THAT LEGISLATIVE
DETERMINATION IN THE GUISE OF STATUTORY CONSTRUCTION.  HAD THE CONGRESS
NOT WISHED THE DEFINITION OF "ENTRY" TO INCLUDE A RETURN AFTER A BRIEF
BUT VOLUNTARY AND INTENTIONAL TRIP, IT COULD HAVE DONE SO.  THE COURT'S
DISCUSSION OF SEC. 316 OF THE ACT SHOWS THAT THE CONGRESS KNOWS WELL
HOW TO TEMPER RIGIDITY WHEN IT WISHES.  NOR CAN IT BE SAID THAT THE
CONGRESS WAS UNAWARE OF THE BREADTH OF ITS DEFINITION.  EVEN ASIDE FROM
THE EVIDENCE THAT IT WAS AWARE OF THE JUDICIAL PRECEDENTS, NUMEROUS
ORGANIZATIONS UNSUCCESSFULLY URGED THAT THE DEFINITION BE NARROWED TO
ACCOMPLISH WHAT THE COURT DOES TODAY.  THUS, IT WAS URGED THAT THE
ACT'S DEFINITION OF "ENTRY" "SHOULD WE BELIEVE, BE NARROWED SO THAT IT
WILL NOT BE APPLICABLE TO AN ALIEN RETURNING FROM ABROAD, AFTER A
TEMPORARY ABSENCE, TO AN UNRELINQUISHED DOMICILE HERE."  (FN1)  OTHER
GROUPS COMPLAINED ALSO THAT "THE TERM 'ENTRY' IS DEFINED TO MEAN ANY
COMING OF AN ALIEN INTO THE UNITED STATES.  IT IS RECOMMENDED THAT THIS
BE NARROWED TO PROVIDE THAT A RETURN, AFTER A TEMPORARY ABSENCE, TO AN
UNRELINQUISHED DOMICILE, SHALL NOT CONSTITUTE A NEW ENTRY."  (FN2)
DESPITE SUCH URGING, HOWEVER, THE CONGRESS MADE NO CHANGE IN THE
DEFINITION.  FURTHER, THIS COURT IN 1958 SPECIFICALLY RECOGNIZED THAT
THE WORD "ENTRY" RETAINED ITS PLAIN MEANING, STATING THAT "A RESIDENT
ALIEN WHO LEAVES THE COUNTRY FOR ANY PERIOD, HOWEVER BRIEF, DOES MAKE A
NEW ENTRY ON HIS RETURN  ...  ."  BONETTI V. ROGERS, 356 U.S. 691,
698. 

ALL THIS TO THE CONTRARY NOTWITHSTANDING, THE COURT TODAY DECIDES
THAT ONE DOES NOT REALLY INTEND TO LEAVE THE COUNTRY UNLESS HE PLANS A
LONG TRIP, OR HIS JOURNEY IS FOR AN ILLEGAL PURPOSE, OR HE NEEDS TRAVEL
DOCUMENTS IN ORDER TO MAKE THE TRIP.  THIS IS CLEARLY CONTRARY TO THE
DEFINITION IN THE ACT AND TO ANY DEFINITION OF "INTENT" THAT I WAS
TAUGHT.  (FN3) 

WHAT THE COURT SHOULD DO IS PROCEED TO THE ONLY QUESTION WHICH EITHER
PARTY SOUGHT TO RESOLVE: WHETHER THE DEPORTATION ORDER DEPRIVED
RESPONDENT OF DUE PROCESS OF LAW IN THAT THE TERM "AFFLICTED WITH
PSYCHOPATHIC PERSONALITY," AS IT APPEARS IN SEC. 212(A)(4) OF THE ACT,
IS UNCONSTITUTIONALLY VAGUE.  SINCE IT FAILS TO DO SO, I MUST DISSENT. 

FN1  STATEMENT OF EDWARD J. ENNIS, REPRESENTING THE AMERICAN CIVIL
LIBERTIES UNION, PRINTED IN JOINT HEARINGS BEFORE THE SUBCOMMITTEES OF
THE COMMITTEES ON THE JUDICIARY ON S. 716, H.R. 2379, AND H.R. 2816,
82D CONG., 1ST SESS. 143. 

FN2  RECOMMENDATIONS AND SUGGESTIONS WITH RESPECT TO TITLES I AND II
OF S. 716 AND H.R.  2379, PRINTED IN JOINT HEARINGS, SUPRA, NOTE 1, AT
617.  SEE ALSO TESTIMONY OF STANLEY H. LOWELL ON BEHALF OF AMERICANS
FOR DEMOCRATIC ACTION, ID., AT 445. 

FN3  SEE, E.G., MORISSETTE V. UNITED STATES, 342 U.S. 246 (1952);
HALL, GENERAL PRINCIPLES OF CRIMINAL LAW (2D ED. 1960), 105-145;
PROSSER, TORTS (2D ED. 1955), 29-30. 
..END :







GASTELUM-QUINONES V. KENNEDY 374 U.S. 469 


NOS. 39 AND 293.  ARGUED MARCH 19, 1963 - DECIDED JUNE 17, 1963 -
REVERSED. 


PETITIONER, AN ALIEN LONG RESIDENT IN THIS COUNTRY, WAS ORDERED
DEPORTED ON THE GROUND THAT, FOR A PERIOD IN 1949 AND 1950, HE WAS A
MEMBER OF THE COMMUNIST PARTY, WITHIN THE MEANING OF SEC. 241(A)(6)(C)
OF THE IMMIGRATION AND NATIONALITY ACT OF 1952.  IN THE DEPORTATION
HEARING, THE EVIDENCE CONSISTED SOLELY OF THE TESTIMONY OF TWO
GOVERNMENT WITNESSES THAT, BETWEEN EITHER LATE 1948 OR EARLY 1949 AND
THE END OF 1950 OR EARLY 1951, PETITIONER WAS A DUES-PAYING MEMBER OF A
CLUB OF THE COMMUNIST PARTY IN LOS ANGELES AND THAT HE ATTENDED ABOUT
15 MEETINGS OF THIS CLUB, ONE EXECUTIVE MEETING OF THE GROUP AND ONE
AREA PARTY CONVENTION.  PETITIONER CHOSE TO INTRODUCE NO EVIDENCE. 
HELD: ON THE RECORD OF THIS CASE, THE GOVERNMENT DID NOT SUSTAIN ITS
BURDEN OF ESTABLISHING THAT PETITIONER'S ASSOCIATION WITH THE COMMUNIST
PARTY WAS MEANINGFUL, AS CONTEMPLATED BY SEC. 241(A)(6)(C), AND THE
DEPORTATION ORDER CANNOT STAND.  ROWOLDT V. PERFETTO, 355 U.S. 115. 
PP. 470-480. 

(A)  IN DEPORTATION CASES SUCH AS THIS, THE ULTIMATE BURDEN IS ON THE
GOVERNMENT TO ESTABLISH THAT THE ALIEN WAS A MEANINGFUL MEMBER OF THE
COMMUNIST PARTY; AND THERE IS INSUFFICIENT EVIDENCE IN THIS RECORD TO
SUPPORT SUCH A FINDING.  PP. 473-478. 

(B)  BECAUSE DEPORTATION IS A DRASTIC SANCTION AND BECAUSE THE
GOVERNMENT'S WITNESSES MIGHT WELL HAVE BEEN ABLE, IF ASKED, TO TESTIFY
CONCERNING THE CHARACTER OF PETITIONER'S ASSOCIATION WITH THE PARTY,
THE DEPORTATION ORDER CANNOT BE SUSTAINED ON THE BARE INFERENCE BASED
UPON PETITIONER'S FAILURE TO PRODUCE OR ELICIT EVIDENCE IN RESPONSE TO
THE GOVERNMENT'S PROOF THAT HE PAID DUES TO THE PARTY AND ATTENDED SOME
MEETINGS.  PP.  479-480. 

GASTELUM-QUINONES V. KENNEDY, ATTORNEY GENERAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS CASE, STRIPPED OF ITS PROCEDURAL COMPLEXITIES, RAISES THE
QUESTION WHETHER AN ALIEN LONG RESIDENT IN THIS COUNTRY IS DEPORTABLE
BECAUSE, FOR A PERIOD DURING 1949 AND 1950, HE PAID DUES TO AND
ATTENDED SEVERAL MEETINGS OF A CLUB OF THE COMMUNIST PARTY IN LOS
ANGELES.  THE IMMIGRATION AND NATURALIZATION SERVICE SOUGHT AND
OBTAINED AN ORDER FOR PETITIONER'S DEPORTATION ON THE GROUND THAT THESE
FACTS ESTABLISHED PETITIONER'S MEMBERSHIP IN THE COMMUNIST PARTY OF THE
UNITED STATES WITHIN THE MEANING OF SEC. 241(A)(6)(C) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163, 204-205, 8
U.S.C. SEC. 1251(A)(6)(C).  (FN1)  WHETHER MEMBERSHIP WAS SO
ESTABLISHED TURNS ON THE APPLICATION OF TWO DECISIONS OF THIS COURT
WHICH CONSTRUED THE IMMEDIATE PREDECESSOR OF SEC. 241(A)(6)(C), SEC. 22
OF THE INTERNAL SECURITY ACT OF 1950, 64 STAT. 987, 1006, 1008.  IN
GALVAN V. PRESS, 347 U.S. 522, 528, IT WAS HELD THAT DEPORTABILITY ON
THE GROUND OF COMMUNIST PARTY MEMBERSHIP TURNS ON WHETHER THE ALIEN WAS
"AWARE THAT HE WAS JOINING AN ORGANIZATION KNOWN AS THE COMMUNIST PARTY
WHICH OPERATES AS A DISTINCT AND ACTIVE POLITICAL ORGANIZATION  ...  ,"
AND IN ROWOLDT V. PERFETTO, 355 U.S. 115, 120, IT WAS HELD, IN
ELABORATION OF GALVAN, THAT THE ALIEN MUST HAVE HAD A "MEANINGFUL
ASSOCIATION" WITH THE COMMUNIST PARTY IN ORDER TO BE DEPORTABLE.  THE
EVIDENCE IN THE RECORD, TO WHICH THE STANDARDS SET FORTH IN THESE
DECISIONS MUST BE APPLIED, WAS ALL ELICITED AT HEARINGS BEFORE THE
SERVICE'S SPECIAL INQUIRY OFFICER IN 1956.  THIS EVIDENCE CONSISTS
SOLELY OF THE TESTIMONY OF TWO GOVERNMENT WITNESSES, PETITIONER HAVING
CHOSEN TO INTRODUCE NO EVIDENCE. 

THE SPECIAL INQUIRY OFFICER ENTERED A DEPORTATION ORDER AGAINST
PETITIONER ON FEBRUARY 28, 1957.  THE BOARD OF IMMIGRATION APPEALS
DISMISSED PETITIONER'S APPEAL ON NOVEMBER 14, 1957, ON THE GROUND THAT
THE RECORD ESTABLISHED HIS VOLUNTARY MEMBERSHIP IN THE COMMUNIST
PARTY.  A FEW WEEKS LATER, THIS COURT DECIDED ROWOLDT V. PERFETTO,
SUPRA, AND PETITIONER ASKED THE BOARD TO RECONSIDER ITS DECISION IN
LIGHT OF THE OPINION IN THAT CASE.  THE BOARD DENIED THE APPLICATION,
POINTING OUT THAT THE RECORD AS IT STOOD STILL SUPPORTED THE
DEPORTATION ORDER.  IT DID, HOWEVER, ORDER A REOPENING OF THE
PROCEEDINGS BEFORE THE SPECIAL INQUIRY OFFICER SO THAT PETITIONER MIGHT
HAVE A CHANCE TO OFFER REBUTTAL TESTIMONY AND THEREBY BRING HIMSELF,
POSSIBLY, WITHIN THE FRAMEWORK OF THE ROWOLDT DECISION. 

AT THE REOPENED HEARING, HOWEVER, PETITIONER'S COUNSEL TOOK THE
POSITION THAT ON THE RECORD AS IT STOOD THE GOVERNMENT HAD FAILED TO
ESTABLISH COMMUNIST PARTY MEMBERSHIP IN THE SENSE CONTEMPLATED BY THE
ROWOLDT DECISION, AND THEREFORE CHOSE NOT TO OFFER FURTHER EVIDENCE. 
THE GOVERNMENT ALSO OFFERED NO ADDITIONAL EVIDENCE.  THE SPECIAL
INQUIRY OFFICER REAFFIRMED HIS PREVIOUS DECISION AND THE BOARD OF
IMMIGRATION APPEALS ON MAY 18, 1959, DISMISSED PETITIONER'S APPEAL. 
PETITIONER THEREUPON FILED AN ACTION IN FEDERAL DISTRICT COURT FOR
REVIEW OF THE DEPORTATION ORDER.  THAT COURT GRANTED THE GOVERNMENT'S
MOTION FOR SUMMARY JUDGMENT AND DISMISSED THE ACTION.  THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED
THE DISMISSAL, 109 U.S. APP. D.C. 267, 286 F.2D 824, AND THIS COURT
DENIED A PETITION FOR CERTIORARI, 365 U.S. 871. 

PETITIONER READ THE COURT OF APPEALS' OPINION AS SUGGESTING THAT SEC.
241(A)(6)(C) WOULD NOT HAVE APPLIED TO HIM IF HE HAD INTRODUCED
EVIDENCE THAT HE HAD NOT PERSONALLY ADVOCATED THE FORCIBLE OVERTHROW OF
THE GOVERNMENT.  (FN2)  HE THEREFORE MOVED BEFORE THE BOARD OF
IMMIGRATION APPEALS THAT THE DEPORTATION HEARING BE REOPENED TO PERMIT
HIM TO INTRODUCE EVIDENCE THAT HE DID NOT PERSONALLY ADVOCATE THE
VIOLENT OVERTHROW OF THE GOVERNMENT.  THE BOARD OF IMMIGRATION APPEALS
HEARD ORAL ARGUMENT ON THE MOTION AND, ON AUGUST 1, 1961, DENIED IT. 

PETITIONER THEN BROUGHT THE PRESENT ACTION IN THE DISTRICT COURT,
PRAYING THAT THE BOARD BE ORDERED TO REOPEN THE DEPORTATION HEARING AND
THAT THE ATTORNEY GENERAL AND HIS AGENTS BE ENJOINED FROM ENFORCING THE
OUTSTANDING DEPORTATION ORDER.  A PRELIMINARY INJUNCTION TO THE LATTER
EFFECT WAS ALSO REQUESTED.  THE COURT DENIED THE MOTION FOR PRELIMINARY
INJUNCTION ON AUGUST 14, 1961, AND THE COURT OF APPEALS SUMMARILY
AFFIRMED THIS DENIAL ON SEPTEMBER 13.  PETITIONER FILED A PETITION FOR
CERTIORARI IN THIS COURT TO REVIEW THE DENIAL OF PRELIMINARY INJUNCTIVE
RELIEF, THE CHIEF JUSTICE ORDERED DEPORTATION STAYED UNTIL THE PETITION
SHOULD BE DISPOSED OF.  MEANWHILE, SUMMARY JUDGMENT WAS GRANTED THE
GOVERNMENT ON THE MERITS OF PETITIONER'S COMPLAINT, WHICH WAS THEREUPON
DISMISSED, A DISPOSITION WHICH WAS SUMMARILY AFFIRMED BY THE COURT OF
APPEALS ON FEBRUARY 23, 1962.  PETITIONER FILED AN ADDITIONAL PETITION
FOR CERTIORARI TO REVIEW THIS JUDGMENT.  WE GRANTED BOTH PETITIONS. 
371 U.S. 860.  NO. 39 INVOLVES THE PRELIMINARY INJUNCTION, AND NO. 293
RELATES TO THE ULTIMATE DISMISSAL OF PETITIONER'S COMPLAINT ON THE
MERITS. 

IN DETERMINING WHETHER, ON THE RECORD BEFORE US, THE GOVERNMENT HAS
FULFILLED ITS BURDEN OF PROVING THAT PETITIONER WAS A "MEMBER" OF THE
COMMUNIST PARTY OF THE UNITED STATES WITHIN THE MEANING OF SEC.
241(A)(6)(C), WE MUST RECOGNIZE AT THE OUTSET WHAT THE HISTORY OF THE
TIMES AMPLY DEMONSTRATES, (FN3) THAT SOME AMERICANS HAVE JOINED THE
COMMUNIST PARTY WITHOUT UNDERSTANDING ITS NATURE AS A DISTINCT
POLITICAL ENTITY.  THE ROWOLDT DECISION, AS WELL AS OTHER DECISIONS OF
THIS COURT, REFLECTS THAT THERE IS A GREAT PRACTICAL AND LEGAL
DIFFERENCE BETWEEN THOSE WHO FIRMLY ATTACH THEMSELVES TO THE COMMUNIST
PARTY BEING AWARE OF ALL OF THE AIMS AND PURPOSES ATTRIBUTED TO IT, AND
THOSE WHO TEMPORARILY JOIN THE PARTY, KNOWING NOTHING OF ITS
INTERNATIONAL RELATIONSHIPS AND BELIEVING IT TO BE A GROUP SOLELY
TRYING TO REMEDY UNSATISFACTORY SOCIAL OR ECONOMIC CONDITIONS, CARRY
OUT TRADE-UNION OBJECTIVES, ELIMINATE RACIAL DISCRIMINATION, COMBAT
UNEMPLOYMENT OR ALLEVIATE DISTRESS AND POVERTY.  (FN4)  ALTHOUGH THE
COURT SPECIFICALLY RECOGNIZED IN GALVAN, SUPRA, AT 528, THAT "SUPPORT,
OR EVEN DEMONSTRATED KNOWLEDGE, OF THE COMMUNIST PARTY'S ADVOCACY OF
VIOLENCE WAS NOT INTENDED TO BE A PREREQUISITE TO DEPORTATION," IT DID
CONDITION DEPORTABILITY ON THE ALIEN'S AWARENESS OF THE "DISTINCT AND
ACTIVE POLITICAL" NATURE OF THE COMMUNIST PARTY, IBID.  THIS, TOGETHER
WITH THE REQUIREMENT OF "MEANINGFUL ASSOCIATION" ENUNCIATED IN ROWOLDT,
SUPRA, AT 120, LED THE COURT TO DECLARE LATER THAT IN GALVAN AND
ROWOLDT IT HAD "HAD NO DIFFICULTY IN INTERPRETING 'MEMBERSHIP'  ...  AS
MEANING MORE THAN THE MERE VOLUNTARY LISTING OF A PERSON'S NAME ON
PARTY ROLLS."  SCALES V. UNITED STATES, 367 U.S. 203, 222. 

THE OPERATION IN PRACTICE OF THIS WISE DISTINCTION IS ILLUSTRATED BY
ROWOLDT, TO WHICH WE THINK THE PRESENT CASE IS ANALOGOUS ON ITS FACTS. 
IN ROWOLDT, THE SOLE EVIDENCE IN THE RECORD WAS ROWOLDT'S STATEMENT TO
AN INSPECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, IN THE
COURSE OF WHICH HE ADMITTED VOLUNTARY MEMBERSHIP BUT SAID NOTHING WHICH
INDICATED THAT HE HAD BEEN AWARE WHILE A MEMBER THAT THE COMMUNIST
PARTY WAS A "DISTINCT AND ACTIVE POLITICAL ORGANIZATION."  MR. JUSTICE
FRANKFURTER, SPEAKING FOR THE COURT, CONCLUDED THAT "FROM HIS OWN
TESTIMONY IN 1947, WHICH IS ALL THERE IS, THE DOMINATING IMPULSE TO HIS
'AFFILIATION' WITH THE COMMUNIST PARTY MAY WELL HAVE BEEN WHOLLY DEVOID
OF ANY 'POLITICAL' IMPLICATIONS."  355 U.S., AT 120.  THE COURT
THEREFORE DECIDED THAT THE RECORD WAS TOO INSUBSTANTIAL TO SUPPORT THE
ORDER OF DEPORTATION.  THE SAME IS TRUE HERE.  THE TESTIMONY OF THE TWO
GOVERNMENT WITNESSES ESTABLISHES ONLY THAT BETWEEN EITHER LATE 1948 OR
EARLY 1949 AND THE END OF 1950 OR EARLY 1951 PETITIONER WAS A DUES
PAYING MEMBER OF A CLUB OF THE COMMUNIST PARTY IN LOS ANGELES, AND THAT
HE ATTENDED ABOUT 15 MEETINGS OF HIS PARTY CLUB, ONE EXECUTIVE MEETING
OF THE GROUP, AND ONE AREA PARTY CONVENTION. 

ONE WITNESS, SCARLETTO, TESTIFIED TO HAVING JOINED THE COMMUNIST
PARTY IN LOS ANGELES IN 1947 "UNDER THE SUPERVISION OF THE F.B.I."  AT
A DATE WHICH HE DID NOT RECALL, BUT WHICH HE THOUGHT WAS IN LATE 1948
OR EARLY 1949, SCARLETTO WAS ASSIGNED TO THE EL SERENO CLUB, WHICH "WAS
ONE OF THE LARGE DIVISIONS OF THE COMMUNIST PARTY WHICH WAS SPLIT UP
LATER."  THERE WERE "APPROXIMATELY 32 MEMBERS IN THE EL SERENO CLUB AT
THAT TIME," AND SCARLETTO WAS THE PRESS DIRECTOR OF THE CLUB. 
SCARLETTO WAS ONLY IN THE EL SERENO CLUB FOR "A FEW MONTHS" WHEN IT
"WAS SPLIT UP INTO SMALLER UNITS FOR SECURITY REASONS."  DURING THESE
FEW MONTHS, SCARLETTO TESTIFIED, HE WAS INTRODUCED TO PETITIONER AT AN
EL SERENO CLUB MEETING AND SAW HIM THERE ONE OTHER TIME.  SINCE
ATTENDANCE AT CLUB MEETINGS WAS RESTRICTED TO COMMUNIST PARTY MEMBERS,
SCARLETTO INFERRED THAT PETITIONER WAS A MEMBER OF THE PARTY. 

SCARLETTO WAS NEXT ASSIGNED, SOME TIME IN EARLY 1949, TO THE MEXICAN
CONCENTRATION CLUB, WHICH, HE TESTIFIED, WAS ALSO A UNIT OF THE
COMMUNIST PARTY OF THE UNITED STATES.  PETITIONER, HE SAID, WAS PUT
INTO THE SAME NEW GROUP.  SCARLETTO SHORTLY BECAME ORGANIZATION
SECRETARY OF THIS GROUP, A JOB WHICH, AMONG OTHER THINGS, GAVE HIM THE
DUTY OF COLLECTING DUES, AND HE TESTIFIED THAT HE COLLECTED DUES FROM
PETITIONER.  SCARLETTO LEFT THE CONCENTRATION CLUB IN EARLY 1951, WHEN
HE WAS TRANSFERRED BY THE PARTY "TO THE UNDERGROUND." 

CONCENTRATION CLUB MEETINGS WERE HELD WEEKLY.  PETITIONER, SCARLETTO
TESTIFIED, "JUST WENT ONCE IN AWHILE, BUT HE WAS A REGULAR MEMBER." 
OVER THE APPROXIMATELY TWO-YEAR PERIOD OF SCARLETTO'S MEMBERSHIP IN THE
CONCENTRATION CLUB, DURING WHICH HE ATTENDED "MOST" OF ITS MEETINGS, HE
TESTIFIED THAT HE SAW PETITIONER AT "ABOUT 15" MEETINGS.  ALL BUT "A
COUPLE" OF THESE, HE SAID, WERE RESTRICTED TO COMMUNIST PARTY MEMBERS. 
ALTHOUGH MEETINGS WERE HELD IN MEMBERS' HOMES, SCARLETTO DID NOT RECALL
ANY AT PETITIONER'S HOME AND SAID THAT HE HIMSELF HAD NEVER BEEN IN
PETITIONER'S HOME.  SCARLETTO DID NOT REMEMBER WHETHER PETITIONER EVER
HELD "AN OFFICIAL POSITION" IN EITHER THE EL SERENO CLUB OR THE MEXICAN
CONCENTRATION CLUB.  FINALLY, SCARLETTO, WHO ATTENDED COMMUNIST PARTY
CONVENTIONS IN THE LOS ANGELES AREA WITH SOME REGULARITY, RECALLED
SEEING PETITIONER AT ONE SUCH CONVENTION.  HE SAID HE HIMSELF ATTENDED
THESE CONVENTIONS IN AN OFFICIAL CAPACITY, BUT DID NOT KNOW IN WHAT
CAPACITY PETITIONER ATTENDED, EXCEPT THAT MEMBERSHIP IN THE PARTY WAS A
PREREQUISITE TO ATTENDANCE. 

THE OTHER WITNESS, ONE ELORRIAGA, TESTIFIED THAT HE, TOO, JOINED THE
COMMUNIST PARTY IN LOS ANGELES IN 1947.  HE, TOO, WAS A MEMBER OF THE
EL SERENO CLUB, BUT DID NOT MEET PETITIONER UNTIL HE WAS ASSIGNED TO A
SMALLER UNIT "KNOWN AS THE FORTY-FIFTH CONCENTRATION," WHICH APPARENTLY
WAS THE SAME ENTITY AS THE "MEXICAN CONCENTRATION CLUB" DISCUSSED BY
SCARLETTO.  ELORRIAGA DID NOT RECALL PETITIONER AS BEING A MEMBER OF
THE EL SERENO CLUB.  ELORRIAGA'S TESTIMONY AS TO THE FREQUENCY OF
PETITIONER'S ATTENDANCE AT CONCENTRATION CLUB MEETINGS WAS
CONTRADICTORY.  AFTER HAVING TESTIFIED ON DIRECT EXAMINATION THAT HE
SAW PETITIONER AT THREE OR FOUR MEETINGS A MONTH, ELORRIAGA RADICALLY
REVISED HIS ESTIMATE THE NEXT DAY ON REDIRECT EXAMINATION TO SAY THAT
HE SAW PETITIONER AT "ABOUT TWO OR THREE MEETINGS" IN TOTAL, ADDING
THAT "I WAS PRESENT AT ONE MEETING IN 1951 AND ANOTHER IN 1949 WITH
...  (PETITIONER)."  (FN5)  THE OVER-ALL LACK OF PRECISION OF
ELORRIAGA'S ANSWERS TO QUESTIONS CONCERNING PETITIONER IS ALSO
SUGGESTED BY A COMPARISON OF HIS ASSERTION THAT PETITIONER MUST HAVE
BEEN AN OFFICIAL OF THE CLUB "BECAUSE HE ATTENDED A FEW OF ITS
EXECUTIVE MEETINGS," WITH HIS IMMEDIATELY FOLLOWING ADMISSION THAT HE
HIMSELF REMEMBERED BEING PRESENT AT ONLY ONE EXECUTIVE MEETING WITH
PETITIONER. 

THE EVIDENCE CONTAINED IN THE RECORD IS THUS EXTREMELY INSUBSTANTIAL
IN DEMONSTRATING THE "MEANINGFUL" CHARACTER OF PETITIONER'S ASSOCIATION
WITH THE PARTY, EITHER DIRECTLY, BY SHOWING THAT HE WAS, DURING THE
TIME OF HIS MEMBERSHIP, SENSIBLE TO THE PARTY'S NATURE AS A POLITICAL
ORGANIZATION, OR INDIRECTLY, BY SHOWING THAT HE ENGAGED IN PARTY
ACTIVITIES TO A DEGREE SUBSTANTIALLY SUPPORTING AN INFERENCE OF HIS
AWARENESS OF THE PARTY'S POLITICAL ASPECT.  (FN6)  IN ONE SENSE,
INDEED, THIS RECORD IS EVEN LESS SUBSTANTIAL IN SUPPORT OF THE
DEPORTATION ORDER THAN WAS THE RECORD IN ROWOLDT, BECAUSE, ALTHOUGH
ROWOLDT STATED THAT HE JOINED THINKING THE PARTY'S AIM WAS "TO GET
SOMETHING TO EAT FOR THE PEOPLE," 355 U.S., AT 117, IT WAS ALSO TRUE
THAT HE HAD WORKED AS A SALESMAN IN A BOOKSTORE WHICH WAS "AN OFFICIAL
OUTLET FOR COMMUNIST LITERATURE," ID., AT 118, AND THAT HE SHOWED SOME
AWARENESS OF COMMUNIST PHILOSOPHY AND TACTICS IN RESPONSE TO
QUESTIONING BY THE IMMIGRATION INSPECTOR.  BEARING IN MIND THAT THE
ULTIMATE BURDEN IN DEPORTATION CASES SUCH AS THIS IS ON THE GOVERNMENT,
IT IS APPARENT THAT HERE, AS IN ROWOLDT, THERE IS INSUFFICIENT EVIDENCE
TO SUPPORT THE DEPORTATION ORDER.  (FN7)    AS AGAINST THE SLIMNESS OF
EVIDENCE THAT IT INTRODUCED, THE GOVERNMENT SEEKS THE BENEFIT OF AN
INFERENCE, BASED UPON PETITIONER'S FAILURE TO PRODUCE OR ELICIT
EVIDENCE IN RESPONSE TO THE GOVERNMENT'S PROOF THAT HE PAID DUES TO THE
PARTY AND ATTENDED SOME MEETINGS, THAT HIS ASSOCIATION WITH THE PARTY
WAS "MORE THAN THE MERE VOLUNTARY LISTING OF  ...  HIS NAME ON PARTY
ROLLS."  SCALES, SUPRA, AT 222.  IT IS A SUFFICIENT ANSWER TO THE
GOVERNMENT'S ARGUMENT TO POINT OUT THAT, AS RECOGNIZED IN GALVAN,
SUPRA, AT 530, AND ROWOLDT, SUPRA, AT 120, DEPORTATION IS A DRASTIC
SANCTION, ONE WHICH CAN DESTROY LIVES AND DISRUPT FAMILIES, AND THAT A
HOLDING OF DEPORTABILITY MUST THEREFORE BE PREMISED UPON EVIDENCE OF
"MEANINGFUL ASSOCIATION" MORE DIRECTLY PROBATIVE THAN A MERE INFERENCE
BASED UPON THE ALIEN'S SILENCE.  (FN8)  MOREOVER, THE FACT IS THAT THE
GOVERNMENT MIGHT WELL HAVE ASKED ITS TWO WITNESSES ABOUT PETITIONER'S
KNOWLEDGE OF THE PARTY AS A POLITICAL ENTITY AND ABOUT THE QUALITATIVE
NATURE OF PETITIONER'S ACTIVITIES IN THE PARTY.  IF IT WERE THE FACT
THAT PETITIONER WAS MORE AWARE OF THE PARTY'S NATURE THAN THIS RECORD
SHOWS, THE GOVERNMENT'S WITNESSES COULD LIKELY HAVE GIVEN TESTIMONY,
EITHER ABOUT PETITIONER'S KNOWLEDGE OR ABOUT HIS PARTY ACTIVITIES,
WHICH WOULD HAVE TENDED TO PROVE THAT AWARENESS.  WITH THE FACTS
CONCERNING THE NATURE OF PETITIONER'S ASSOCIATION PERHAPS NEAR AT HAND,
AND IN LIGHT OF BOTH THE POSSIBILITY THAT THOSE FACTS WOULD NOT BE
CONSISTENT WITH A FINDING OF "MEANINGFUL ASSOCIATION" AND THE HARSHNESS
OF THE DEPORTATION SANCTION, WE CANNOT SUSTAIN PETITIONER'S DEPORTATION
UPON A BARE INFERENCE WHICH THE GOVERNMENT WOULD HAVE US DERIVE FROM
PETITIONER'S FAILURE TO INTRODUCE EVIDENCE IN RESPONSE TO THE
GOVERNMENT'S PROOF OF HIS DUES-PAYING MEMBERSHIP AND SOMETIME
ATTENDANCE AT PARTY MEETINGS. 

WE ARE HENCE CONFRONTED WITH A CASE IN WHICH THE GOVERNMENT DID NOT
SUSTAIN ITS BURDEN OF ESTABLISHING THAT PETITIONER WAS A MEANINGFUL
MEMBER OF THE PARTY AS CONTEMPLATED BY SEC. 241(A)(6)(C).  TO
PARAPHRASE THE HOLDING OF ROWOLDT, SUPRA, AT 120:  FROM THE TESTIMONY
OF THE TWO GOVERNMENTAL WITNESSES, WHICH IS ALL THERE IS, THE
DOMINATING IMPULSE TO PETITIONER'S AFFILIATION WITH THE COMMUNIST PARTY
MAY WELL HAVE BEEN WHOLLY DEVOID OF ANY "POLITICAL" IMPLICATIONS.  WE
HOLD THAT, ON THE RECORD BEFORE US, THE DEPORTATION ORDER AGAINST
PETITIONER IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, UNIVERSAL CAMERA
CORP. V. LABOR BOARD, 340 U.S. 474, AND THEREFORE CANNOT STAND.  (FN9)
JUDGMENT REVERSED. 

FN1  "(A)  ANY ALIEN IN THE UNITED STATES  ...  SHALL, UPON THE ORDER
OF THE ATTORNEY GENERAL, BE DEPORTED WHO: 

     *         *         *         *   * 

"(6)  IS OR AT ANY TIME HAS BEEN AFTER ENTRY, A MEMBER OF ANY OF THE
FOLLOWING CLASSES OF ALIENS: 

     *  *         *         *         * 

"(C)  ALIENS WHO ARE MEMBERS OF OR AFFILIATED WITH (I) THE COMMUNIST
PARTY OF THE UNITED STATES ...  ." 

FN2  THERE IS NO DISPUTE BEFORE THIS COURT, NOR COULD THERE BE, THAT
UNDER GALVAN, SUPRA, AT 528, THE ABSENCE OF PERSONAL ADVOCACY OF
VIOLENT OVERTHROW IS NOT BY ITSELF A BAR TO DEPORTABILITY UNDER SEC.
241(A)(6)(C).  SEE PP. 473-474, INFRA. 

FN3  SEE, E.G., AARON, WRITERS ON THE LEFT (1961), 149-160; DECTER,
THE PROFILE OF COMMUNISM (1961), 50-51; ERNST AND LOTH, REPORT ON THE
AMERICAN COMMUNIST (1952), PASSIM; GLAZER, THE SOCIAL BASIS OF AMERICAN
COMMUNISM (1961), 115 AND PASSIM. 

FN4  COMPARE YATES V. UNITED STATES, 354 U.S. 298, 327-333; SCALES V.
UNITED STATES, 367 U.S. 203, 222-223, 230-255; NOTO V. UNITED STATES,
367 U.S. 290. 

FN5  ELORRIAGA'S TESTIMONY ON DIRECT EXAMINATION WAS AS FOLLOWS: 

"Q.  NOW YOU SAY YOU MET HIM IN MEETINGS OF THAT CLUB, HOW OFTEN
WOULD YOU SAY YOU SAW THE RESPONDENT IN MEETINGS OF THAT CLUB? 

"A.  HOW OFTEN, ABOUT MAYBE THREE OR FOUR MEETINGS A MONTH." 

ONE POSSIBLE EXPLANATION OF THE APPARENT CONTRADICTION IS THAT
ELORRIAGA UNDERSTOOD THE QUESTION ON DIRECT EXAMINATION AS MERELY AN
INQUIRY INTO HOW OFTEN CLUB MEETINGS WERE HELD, AND ANSWERED
ACCORDINGLY.  THIS IS BORNE OUT TO SOME EXTENT BY THE FACT THAT THE
WITNESS GAVE HIS "REVISED" ANSWER TO THE QUESTION ON TWO SEPARATE
OCCASIONS, SOME MINUTES APART, DURING THE REDIRECT EXAMINATION. 

FN6  SINCE SOME ACTIVITIES MAY BE ENGAGED IN WITHOUT THE REQUISITE
AWARENESS, SATISFACTION OF THE GOVERNMENT'S BURDEN AS TO THE ULTIMATE
FACT OF "MEANINGFUL ASSOCIATION" BY EVIDENCE OF ACTIVITIES INSTEAD OF
BY DIRECT EVIDENCE OF AWARENESS OF THE PARTY'S "DISTINCT AND ACTIVE
POLITICAL" NATURE MUST BE BASED UPON EVIDENCE OF ACTIVITIES SUFFICIENT
TO GIVE SUBSTANTIAL SUPPORT TO AN INFERENCE OF THE ALIEN'S AWARENESS OF
THE PARTY'S POLITICAL ASPECT.  THE SOLE ASPECT OF THE WITNESS
SCARLETTO'S TESTIMONY WHICH MIGHT HAVE IMPLIED THAT PETITIONER'S
ASSOCIATION WITH THE PARTY WAS "MEANINGFUL" WAS HIS REFERENCE TO HAVING
SEEN PETITIONER AT ONE LOS ANGELES AREA CONVENTION OF THE PARTY. 
HOWEVER, IN CONTRAST TO THE TESTIMONY IN NIUKKANEN V. MCALEXANDER, 362
U.S. 390, NOTE 7, INFRA, SCARLETTO NEITHER DESCRIBED WHAT PETITIONER
WOULD HAVE HEARD AT THE CONVENTION NOR SUGGESTED THAT THERE WAS ANY
PREREQUISITE SUCH AS OFFICERSHIP OR EXECUTIVE RESPONSIBILITY TO
PETITIONER'S ATTENDANCE AT THE CONVENTION.  SCARLETTO SAID THAT THE
NATURE OF SUCH CONVENTIONS GENERALLY WAS THAT "THEY WOULD HAVE
DISCUSSIONS ON WHAT WAS GOING ON IN THE PARTY, AND WHAT DRIVES WERE
COMING UP," BUT DID NOT ELABORATE THIS STATEMENT WITH REFERENCE TO THE
CONVENTION THAT PETITIONER ATTENDED OR TO WHAT PETITIONER DID THERE. 
SCARLETTO COULD ONLY BE SURE THAT PETITIONER HAD TO BE A MEMBER TO BE
PRESENT.  THE ONLY FACET OF ELORRIAGA'S TESTIMONY WHICH TOUCHED UPON
THE QUALITATIVE ASPECT OF PETITIONER'S MEMBERSHIP WAS HIS STATEMENT
THAT HE HAD SEEN PETITIONER AT ONE EXECUTIVE BOARD MEETING OF THE PARTY
UNIT.  HOWEVER, IN CONTRAST TO THE TESTIMONY IN GALVAN, SUPRA, AT 524,
529, HE ONLY SUPPOSED PETITIONER TO HAVE BEEN AN "OFFICIAL OF THE
CLUB," BECAUSE OF PETITIONER'S PRESENCE AT AN EXECUTIVE MEETING WHICH
ELORRIAGA THOUGHT WAS "PROBABLY" LIMITED TO "OFFICIALS OF THE CLUB" AND
HE DID NOT ELABORATE SPECIFICALLY UPON THE SIGNIFICANCE OF PETITIONER'S
PRESENCE AT THE ONE MEETING, MAKING ONLY THE GENERAL STATEMENT THAT "AT
THIS TIME I CANNOT SAY DEFINITELY THE PURPOSE OF THAT MEETING BUT IT
WAS EITHER ORGANIZATIONAL OR TO FORM AN AGENDA FOR THE REGULAR
MEETING."  THUS, NONE OF THE TESTIMONY OF EITHER SCARLETTO OR ELORRIAGA
WAS SIGNIFICANTLY PROBATIVE OF PETITIONER'S "MEANINGFUL ASSOCIATION"
WITH THE PARTY. 

FN7  THIS COURT'S LATER PER CURIAM DECISION IN NIUKKANEN V.
MCALEXANDER, 362 U.S. 390, IN NO WAY QUALIFIED THE MEANING OF ROWOLDT,
SINCE THE EVIDENCE IN THE RECORD IN NIUKKANEN CLEARLY SHOWED
"MEANINGFUL ASSOCIATION."  SEE NIUKKANEN V. MCALEXANDER, 265 F.2D 825
(C.A.  9TH CIR. 1959).  TWO WITNESSES TESTIFIED FOR THE GOVERNMENT. 
BOTH CONFIRMED NIUKKANEN'S PARTY MEMBERSHIP AND HIS REGULAR ATTENDANCE
AT MEETINGS.  IN ADDITION, ONE WITNESS TESTIFIED THAT NIUKKANEN HELPED
IN THE DISTRIBUTION OF A COMMUNIST-CONTROLLED TRADE-UNION NEWSPAPER
EDITED BY THE WITNESS, AND ACTIVELY PARTICIPATED IN DISCUSSIONS AT THE
NEWSPAPER OFFICE AND ELSEWHERE PERTAINING TO POLICIES OF THE COMMUNIST
PARTY AND CIRCULATION OF THE NEWSPAPER AS A COMMUNIST ORGAN.  THIS
WITNESS ALSO TESTIFIED THAT NIUKKANEN HAD ATTENDED A REGIONAL "PLENUM"
OF THE PARTY - A MEETING WHEREIN ALL ASPECTS OF REGIONAL PARTY
ACTIVITIES WERE REPORTED ON. SUCH A MEETING, SAID THE WITNESS, WAS ONLY
FOR THE "ANOINTED PEOPLE," THE "TOP FRACTION" IN THE PARTY, TO WHICH,
THE WITNESS ADDED, NIUKKANEN BELONGED.   THE OTHER WITNESS, WHO HAD
BEEN A MEMBER OF THE SAME UNIT OF THE PARTY AS NIUKKANEN, ADDED THAT
NIUKKANEN, ALTHOUGH NEVER AN OFFICER OF THE UNIT, WAS A MEMBER OF ITS
EXECUTIVE BOARD. 

NOR IS GALVAN, SUPRA, WHICH WAS DECIDED BEFORE ROWOLDT, INCONSISTENT
WITH EITHER THAT CASE OR THE PRESENT ONE.  MR. JUSTICE FRANKFURTER, WHO
WROTE THE COURT'S OPINIONS IN BOTH GALVAN AND ROWOLDT, STATED IN
ROWOLDT THAT "THE DIFFERENCES ON THE FACTS BETWEEN GALVAN V. PRESS,
SUPRA, AND THIS CASE ARE TOO OBVIOUS TO BE DETAILED."  355 U.S., AT
121. 

FN8  IN THE PRESENT CASE, FOR EXAMPLE, DEPORTATION WOULD REMOVE A MAN
WHO HAS RESIDED IN THIS COUNTRY SINCE 1920 WHEN HE CAME FROM MEXICO AS
A 10-YEAR-OLD BOY, AND HAS RAISED AND SUPPORTED A FAMILY WHO ARE ALL
AMERICAN CITIZENS. 

FN9  OUR DISPOSITION OF THE CASE MAKES IT UNNECESSARY TO CONSIDER
PETITIONER'S CONTENTION THAT "AT LEAST THE SPIRIT" OF 28 U.S.C. SEC. 46
WAS VIOLATED WHEN THE PANEL OF THE COURT OF APPEALS ASSIGNED TO HEAR
PETITIONER'S APPEAL IN THE CURRENT SERIES OF PROCEEDINGS TRANSFERRED
THE APPEAL INSTEAD TO THE SAME PANEL WHICH HAD HEARD HIS FIRST APPEAL,
109 U.S. APP. D.C. 267, 286 F.2D 824, IT BEING CLEARLY PREDICTABLE THAT
ONE OF THE THREE JUDGES ON THAT PANEL WOULD NOT PARTICIPATE, SINCE HE
HAD BEEN UNABLE TO PARTICIPATE IN THE DISPOSITION OF THE FIRST APPEAL. 

MR. JUSTICE WHITE, WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART JOIN, DISSENTING. 

PETITIONER IS CHARGED WITH BEING AN ALIEN WHO AFTER ENTRY HAD BECOME
A MEMBER OF THE COMMUNIST PARTY, AND THUS SUBJECT TO DEPORTATION UNDER
SEC. 241(A)(6)(C) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952. 
HEARINGS WERE HELD FROM APRIL THROUGH JULY 1956, AT WHICH THE UNITED
STATES INTRODUCED TESTIMONY OF TWO WITNESSES AS TO PETITIONER'S
AFFILIATION WITH COMMUNIST PARTY UNITS IN LOS ANGELES FROM 1949 TO
1951, BUT PETITIONER REFUSED TO ANSWER ANY QUESTION CONCERNING HIS
MEMBERSHIP IN THE COMMUNIST PARTY.  THE SPECIAL INQUIRY OFFICER FOUND
PETITIONER DEPORTABLE UNDER SEC. 241(A)(6)(C) AND THE BOARD OF
IMMIGRATION APPEALS DISMISSED THE PETITIONER'S APPEAL ON NOVEMBER 14,
1957, HOLDING THAT THE EVIDENCE ESTABLISHED A PRIMA FACIE CASE OF
MEMBERSHIP WHICH PETITIONER MADE NO ATTEMPT TO REBUT.  ON JANUARY 13,
1958, AFTER THIS COURT'S DECISION IN ROWOLDT V. PERFETTO, 355 U.S. 115,
THE BOARD OF IMMIGRATION APPEALS RECONSIDERED PETITIONER'S CASE IN
LIGHT OF ROWOLDT.  NOTING THAT, UNLIKE THE PETITIONER IN ROWOLDT,
PETITIONER HERE HAD OFFERED NO EVIDENCE WHICH WOULD UPSET THE NORMAL
INFERENCE OF POLITICAL AWARENESS FLOWING FROM HIS TWO-YEAR ASSOCIATION
WITH THE COMMUNIST PARTY AT A TIME WHEN THE PURPOSES AND ACTIVITIES OF
THE PARTY WERE A MATTER OF PUBLIC RECORD, THE BOARD GRANTED
PETITIONER'S REQUEST TO REOPEN THE PROCEEDINGS IN ORDER THAT HE MIGHT
PRESENT TESTIMONY WHICH WOULD BRING HIM WITHIN ROWOLDT.  AT THE
REOPENED HEARINGS, HOWEVER, PETITIONER OFFERED NO EVIDENCE BUT MERELY
INTRODUCED A STATEMENT ASSERTING THAT THE EXISTING RECORD DID NOT
ESTABLISH MEANINGFUL MEMBERSHIP AND SUGGESTING THAT THE GOVERNMENT
PRESENT ADDITIONAL EVIDENCE.  THE SPECIAL INQUIRY OFFICER, AFTER
REEXAMINING THE RECORD, ADHERED TO HIS ORIGINAL CONCLUSION THAT THE
EVIDENCE SHOWED VOLUNTARY, MEANINGFUL MEMBERSHIP IN THE COMMUNIST
PARTY.  ON APPEAL TO THE BOARD OF IMMIGRATION APPEALS, THAT BODY, AFTER
EXAMINING THE RECORD AGAIN, REAFFIRMED ITS DECISION THAT THE TESTIMONY
ESTABLISHED MEANINGFUL MEMBERSHIP WITHIN THE ROWOLDT CASE.  PETITIONER
FILED A PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF IN THE DISTRICT
COURT TO REVIEW THE DEPORTATION ORDER AND, AFTER STILL ANOTHER
EXAMINATION OF THE ORDER AND THE SUPPORTING RECORD, THE COURT GRANTED
THE BOARD'S MOTION FOR SUMMARY JUDGMENT.  THE COURT OF APPEALS HELD
THAT "THE FINDINGS OF THE BOARD THAT PETITIONER'S PARTY MEMBERSHIP WAS
MEANINGFUL IS ESTABLISHED BY THE RECORD," 109 U.S. APP. D.C. 267, 271,
286 F.2D 824, 828, AND AFFIRMED.  IN A PETITION FOR CERTIORARI TO THIS
COURT, PETITIONER ARGUED THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
THE DEPORTATION ORDER, BUT CERTIORARI WAS DENIED, 365 U.S. 871. 

PETITIONER THEREUPON COMMENCED THE PROCEEDINGS WHICH BRING THE CASE
BEFORE US TODAY.  HE FILED A MOTION TO REOPEN THE PROCEEDINGS BEFORE
THE BOARD OF IMMIGRATION APPEALS ON THE GROUND THAT HE SHOULD BE
PERMITTED TO TESTIFY THAT HE NEVER PERSONALLY ADVOCATED THE OVERTHROW
OF THE GOVERNMENT BY FORCE OR VIOLENCE.  WHILE NOT DISPUTING THAT AN
INQUIRY INTO WHETHER AN ALIEN PERSONALLY ADVOCATED VIOLENT OVERTHROW IS
IMMATERIAL IN DEPORTATION PROCEEDINGS, GALVAN V. PRESS, 347 U.S. 522,
PETITIONER NONETHELESS INSISTED UPON INTRODUCING THE TESTIMONY BECAUSE,
AS HE READ THE OPINION OF THE COURT OF APPEALS, 109 U.S. APP. D.C. 267,
286 F.2D 824, PROOF THAT AN ALIEN DID NOT PERSONALLY ESPOUSE THE CAUSE
OF VIOLENT OVERTHROW OF THE GOVERNMENT WOULD SAVE HIM FROM DEPORTATION
UNDER SEC. 241(A)(6)(C).  THE BOARD OF IMMIGRATION APPEALS DECLINED TO
REOPEN THE PROCEEDINGS AGAIN, BECAUSE IN ITS VIEW THE COURT OF APPEALS
DID NOT ANNOUNCE THE RULE ON WHICH PETITIONER RELIED AND BECAUSE GALVAN
V. PRESS AND ROWOLDT V. PERFETTO SO CLEARLY HELD THAT PROOF OF SUCH A
PERSONAL COMMITMENT TO THE TENET OF VIOLENT OVERTHROW WAS NOT REQUIRED
FOR DEPORTATION PROCEEDINGS.  AFTER REVIEWING THE RECORD FOR THE THIRD
TIME, THE BOARD CONCLUDED THAT "THERE IS UNCONTRADICTED TESTIMONY TO
SHOW THAT A VOLUNTARY MEANINGFUL MEMBERSHIP EXISTED."  PETITIONER FILED
HIS SECOND ACTION FOR JUDICIAL REVIEW, CONTENDING THAT THE REFUSAL TO
REOPEN THE HEARINGS SO THAT HE COULD SUBMIT HIS TESTIMONY WAS
"ERRONEOUS, UNCONSTITUTIONAL AND ILLEGAL."  THE DISTRICT COURT, FINDING
NO ABUSE OF DISCRETION IN THE BOARD'S REFUSAL TO REOPEN THE
PROCEEDINGS, DECLINED TO DISTURB THE DEPORTATION ORDER.  THE COURT OF
APPEALS AFFIRMED, THE CASE WAS BROUGHT HERE AND THE COURT NOW
REVERSES.  I RESPECTFULLY DISSENT. 

FIRST.  THE ISSUE TENDERED TO THE DISTRICT COURT WAS WHETHER THE
BOARD OF IMMIGRATION APPEALS SHOULD HAVE REOPENED THE RECORD TO ALLOW
PETITIONER TO PRESENT EVIDENCE OF THE KIND STATED IN THE AFFIDAVIT
ATTACHED TO THE COMPLAINT.  BOTH THE DISTRICT COURT AND THE COURT OF
APPEALS UPHELD THE BOARD'S REFUSAL TO REOPEN THE PROCEEDINGS.  THE
COURT HERE DOES NOT DISAGREE, NOR DOES IT SUGGEST THAT THE EVIDENCE
WHICH PETITIONER SOUGHT TO ADD TO THE RECORD WAS IN ANY WAY MATERIAL TO
THE QUESTION OF DEPORTABILITY UNDER THE STATUTE.  INSTEAD, IT DECIDES
THAT THE RECORD DOES NOT SHOW MEANINGFUL OR VOLUNTARY MEMBERSHIP, THUS
RESURRECTING AN ISSUE SUPPOSEDLY SETTLED IN PREVIOUS PROCEEDINGS IN
THIS CASE, AN ISSUE WHICH THE COURTS BELOW TIME AFTER TIME DECIDED
CONTRARY TO THE VIEW NOW TAKEN BY THIS COURT AND AN ISSUE WHICH THE
COURT ITSELF PREVIOUSLY DECLINED TO REVIEW BY CERTIORARI.  A WISE USE
OF THE COURT'S POWERS WOULD CONFINE DECISION HERE TO THE ISSUE
PRESENTED TO THE DISTRICT COURT, RATHER THAN AFFORD REPEATED REVIEW OF
PREVIOUSLY DECIDED MATTERS AND SO CALL INTO QUESTION THE INTEGRITY OF
THE ADMINISTRATIVE AND JUDICIAL PROCESS. 

SECOND.  SHAUGHNESSY V. PEDREIRO, 349 U.S. 48, HELD THAT AN ALIEN
COULD, BY BRINGING AN ACTION FOR DECLARATORY JUDGMENT AND INJUNCTION,
SECURE JUDICIAL REVIEW OF A "FINAL" ORDER OF DEPORTATION UNDER SEC. 10
OF THE ADMINISTRATIVE PROCEDURE ACT.  THIS IS SUCH AN ACTION, AS THE
COMPLAINT EXPRESSLY STATES, AND AFFIRMANCE OF THE ORDER OF DEPORTATION
IS REQUIRED IN THIS CASE UNLESS THE ADMINISTRATIVE FINDINGS ARE NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE.  ALTHOUGH THE ORDER MUST "BE SET
ASIDE WHEN THE RECORD BEFORE A COURT  ...  CLEARLY PRECLUDES THE
BOARD'S DECISION FROM BEING JUSTIFIED BY A FAIR ESTIMATE OF THE WORTH
OF THE TESTIMONY OF WITNESSES OR ITS INFORMED JUDGMENT ON MATTERS
WITHIN ITS SPECIAL COMPETENCE OR BOTH," REVIEW UNDER SEC. 10 DOES NOT
"MEAN THAT EVEN AS TO MATTERS NOT REQUIRING EXPERTISE A COURT MAY
DISPLACE THE BOARD'S CHOICE BETWEEN TWO FAIRLY CONFLICTING VIEWS, EVEN
THOUGH THE COURT WOULD JUSTIFIABLY HAVE MADE A DIFFERENT CHOICE HAD THE
MATTER BEEN BEFORE IT DE NOVO."  UNIVERSAL CAMERA CORP. V. LABOR BOARD,
340 U.S. 474, 488, 490.  "IT IS  ...  IMMATERIAL THAT THE FACTS PERMIT
THE DRAWING OF DIVERSE INFERENCES.  THE AGENCY ALONE IS CHARGED WITH
THE DUTY OF INITIALLY SELECTING THE INFERENCE WHICH SEEMS MOST
REASONABLE AND ITS CHOICE, IF OTHERWISE SUSTAINABLE, MAY NOT BE
DISTURBED BY A REVIEWING COURT."  CARDILLO V. LIBERTY MUTUAL CO., 330
U.S. 469, 478. 

IF GALVAN V. PRESS AND ROWOLDT V. PERFETTO ARE NOT TO BE OVERRULED,
OR SUBSTANTIALLY MODIFIED, NEITHER OF WHICH PETITIONER HAS REQUESTED
HERE, AND IF THE SUBSTANTIAL EVIDENCE RULE IS NOT TO BE ABANDONED,
THERE IS AMPLE BASIS ON THIS RECORD TO SUSTAIN THE FINDING OF
VOLUNTARY, MEANINGFUL MEMBERSHIP.  PETITIONER WAS A REGULAR DUES-PAYING
MEMBER OF THE PARTY, AT LEAST FROM 1949 TO 1951, AND THERE IS NO
EVIDENCE THAT HIS MEMBERSHIP TERMINATED AT THE LATTER DATE.  WHEN THE
PARTY WAS REORGANIZED INTO SMALLER UNITS, PETITIONER WAS TRANSFERRED TO
A NEW GROUP AND HE WAS SEEN 15 TIMES ("IT COULD BE 15, IT COULD BE
MORE") AT MEETINGS OF THE UNIT WHICH WERE RESTRICTED TO PARTY MEMBERS. 
"HE WAS AN OFFICIAL OF THE CLUB BECAUSE HE ATTENDED A FEW EXECUTIVE
MEETINGS OF THE FORTY-FIFTH," AT ONE OF WHICH HE WAS SEEN BY THE
GOVERNMENT WITNESS.  THIS MEETING WAS "EITHER ORGANIZATIONAL OR TO FORM
AN AGENDA FOR THE REGULAR MEETING."  ATTENDANCE AT EXECUTIVE MEETINGS
WAS RESTRICTED "TO PARTY MEMBERS AND PROBABLY OFFICIALS OF THE CLUB." 
AT ONE TIME PETITIONER WAS TRANSFERRED OUT OF THE MEXICAN CONCENTRATION
CLUB "FOR SOME OTHER JOB."  PETITIONER WAS ALSO KNOWN TO HAVE ATTENDED
AT LEAST ONE PARTY CONVENTION, ATTENDANCE AT WHICH WAS RESTRICTED TO
PARTY MEMBERS - "YOU HAD TO FACE THE PANEL AND GIVE YOUR CLUB, YOUR
POSITION OF THAT CLUB, AND BE IDENTIFIED BY MEMBERS THAT WERE ON THE,
ON THIS PANEL, BEFORE YOU WERE ADMITTED."  AT THE CONVENTIONS, "THEY
WOULD HAVE DISCUSSIONS ON WHAT WAS GOING ON IN THE PARTY, AND WHAT
DRIVES WERE COMING UP." 

THESE FACTS ARE SUFFICIENT BASIS FOR THE BOARD'S FINDING OF
VOLUNTARY, MEANINGFUL MEMBERSHIP.* AFTER REGULAR ATTENDANCE AT PARTY
MEETINGS AND FUNCTIONS, AND REGULAR FINANCIAL SUPPORT FOR ITS
ACTIVITIES, IT IS RATHER FANCIFUL TO BELIEVE PETITIONER WAS STILL
UNAWARE OF THE POLITICAL NATURE OF THE COMMUNIST PARTY.  IT IS DOUBTFUL
THAT THE MEETINGS WERE SO INEPTLY RUN OR STRUCTURED. 

*THE COURT IS CONCERNED ABOUT THE INSUFFICIENCY OF THE "DIRECT" AND
"INDIRECT" EVIDENCE OF AWARENESS AND PARTICIPATION.  THE RECORD,
THOUGH, CONTAINS "DIRECT" EVIDENCE FROM SCARLETTO, WHO SAW PETITIONER
AT PARTY MEETINGS AND AT A CONVENTION, AND WHO TESTIFIED THAT AT SUCH
CONVENTIONS "THEY WOULD HAVE DISCUSSIONS ON WHAT WAS GOING ON IN THE
PARTY."  ELORRIAGA STATED THAT HE SAW PETITIONER AT AN EXECUTIVE
MEETING "EITHER ORGANIZATIONAL OR TO FORM AN AGENDA FOR THE REGULAR
MEETING."  BOTH WITNESSES TESTIFIED "DIRECTLY" THAT PETITIONER WAS A
DUES-PAYING MEMBER AND ATTENDED PARTY MEETINGS.   TO ME THIS
UNCONTRADICTED TESTIMONY PLAINLY IS "DIRECT" EVIDENCE THAT PETITIONER
WAS AWARE OF THE DISTINCT AND ACTIVE POLITICAL NATURE OF THE COMMUNIST
PARTY OR AT THE VERY LEAST SUFFICIENT "INDIRECT" EVIDENCE FROM WHICH AN
INFERENCE OF MEANINGFUL MEMBERSHIP COULD BE DRAWN. 

TO BE SURE, FACTS PURPORTING TO SHOW VOLUNTARY MEMBERSHIP CAN BE
EXPLAINED AWAY AND RENDERED MEANINGLESS BY FURTHER FACTS AS IN
ROWOLDT.  BUT HERE PETITIONER DID NOT TESTIFY AND DID NOT ATTEMPT TO
CHARACTERIZE OR TO LIMIT THE SIGNIFICANCE OF HIS ASSOCIATION WITH THE
PARTY.  IN THE CIRCUMSTANCES "IT IS ENOUGH THAT THE ALIEN JOINED THE
PARTY, AWARE THAT HE WAS JOINING AN ORGANIZATION KNOWN AS THE COMMUNIST
PARTY WHICH OPERATES AS A DISTINCT AND ACTIVE POLITICAL ORGANIZATION,
AND THAT HE DID SO OF HIS OWN FREE WILL.  A FAIR READING OF THE
LEGISLATION REQUIRES THAT THIS SCOPE BE GIVEN TO WHAT CONGRESS ENACTED
...  ."  GALVAN V. PRESS, 347 U.S., AT 528. 

I WOULD THEREFORE AFFIRM THE REPEATED HOLDINGS OF THE COURTS BELOW,
MADE AFTER SEVERAL THOROUGH EXAMINATIONS OF THE RECORD.  "THIS IS NOT
THE PLACE TO REVIEW A CONFLICT OF EVIDENCE NOR TO REVERSE A COURT OF
APPEALS BECAUSE WERE WE IN ITS PLACE WE WOULD FIND THE RECORD TILTING
ONE WAY RATHER THAN THE OTHER, THOUGH FAIR-MINDED JUDGES COULD FIND IT
TILTING EITHER WAY."  LABOR BOARD V. PITTSBURGH S.S. CO., 340 U.S. 498,
503.  "WE DO NO MORE ON THE ISSUE OF INSUBSTANTIALITY THAN DECIDE THAT
THE COURT OF APPEALS HAS MADE A 'FAIR ASSESSMENT' OF THE RECORD." 
FEDERAL TRADE COMM'N V. STANDARD OIL CO., 355 U.S. 396, 401; PEURIFOY
V. COMMISSIONER, 358 U.S. 59, 61; LABOR BOARD V. PITTSBURGH S.S. CO.,
340 U.S. 498, 502.  "THIS COURT WILL INTERVENE ONLY IN WHAT OUGHT TO BE
THE RARE INSTANCE WHEN THE STANDARD APPEARS TO HAVE BEEN MISAPPREHENDED
OR GROSSLY MISAPPLIED."  UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340
U.S. 474, 491. 
..END :



















JAMIESON V. CELEBREZZE 374 U.S. 487 


NO. 1016.  DECIDED JUNE 17, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 311 F.2D 506. 


JAMIESON V. CELEBREZZE, SECRETARY OF HEALTH, EDUCATION AND WELFARE. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CHAMBERLIN V. DADE COUNTY BOARD OF PUBLIC INSTRUCTION 374 U.S. 487 


NO. 520.  DECIDED JUNE 17, 1963 - JUDGMENT VACATED AND CASE REMANDED -
REPORTED BELOW: 143 SO. 2D 21. 


CHAMBERLIN ET AL. V. DADE COUNTY BOARD OF PUBLIC INSTRUCTION ET AL. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT
OF FLORIDA FOR FURTHER CONSIDERATION IN LIGHT OF MURRAY V. CURLETT AND
SCHOOL DISTRICT OF ABINGTON TOWNSHIP V. SCHEMPP, ANTE, P. 203, BOTH
DECIDED THIS DAY. 
..END :















WALKER V. WALKER 374 U.S. 488 


NO. 180, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  302 F.2D 265. 


WALKER V. WALKER, WARDEN, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :














ROBINSON V. HUNTER 374 U.S. 488 


NO. 5, MISC.  DECIDED JUNE 17, 1963 - 194 F. SUPP. 423, AFFIRMED. 


ROBINSON ET AL V. HUNTER ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















LAUGHNER V. WAINWRIGHT 374 U.S. 489 


NO. 712, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


LAUGHNER V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















DAVIS V. BANMILLER 374 U.S. 489 


NO. 3, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  289 F.2D 925. 


DAVIS V. BANMILLER, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :














BRADLEY V. IOWA 374 U.S. 490 


NO. 934, MISC.  DECIDED JUNE 17, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW: 254 IOWA 211, 116 N.W.2D 439. 


BRADLEY V. IOWA. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















MAYS V. CALIFORNIA 374 U.S. 490 


NO. 871, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  SEE 205 CAL. APP. 2D 798,
23 CAL. RPTR.  605. 


MAYS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S.,
AT 358, 360. 
..END :









ACUFF V. TEXAS 374 U.S. 491 


NO. 1348, MISC.  DECIDED JUNE 17, 1963 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  172 TEX. CR. R. 176,
354 S.W.2D 939. 


ACUFF V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















PAIGE V. NORTH CAROLINA 374 U.S. 491 


NO. 884, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


PAIGE V. NORTH CAROLINA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :














KOVNER V. WAINWRIGHT 374 U.S. 492 


NO. 1136, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  149 SO. 2D 550. 


KOVNER V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















BRYANT V. WAINWRIGHT 374 U.S. 492 


NO. 901, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


BRYANT V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















TRAUB V. CONNECTICUT 374 U.S. 493 


NO. 1285, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  150 CONN. 169, 187 A.2D
230. 


TRAUB V. CONNECTICUT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ERRORS OF
CONNECTICUT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF WONG SUN V.
UNITED STATES, 371 U.S. 471, AND KER V. CALIFORNIA, ANTE, P. 23. 
..END :













CHAVEZ V. CALIFORNIA 374 U.S. 493 


NO. 1113, MISC.  DECIDED JUNE 17, 1963 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 208 CAL. APP. 2D 248, 24 CAL. RPTR.  895. 


CHAVEZ V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SIDENER V. CALIFORNIA 374 U.S. 494 


NO. 1372, MISC.  DECIDED JUNE 17, 1963 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 58 CAL. 2D 645, 375 P.2D 641. 


SIDENER V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















AUFLICK V. WAINWRIGHT 374 U.S. 494 


NO. 979, MISC.  DECIDED JUNE 17, 1963. 


MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS DENIED;
CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED. 

AUFLICK V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED. 
TREATING THE PAPERS SUBMITTED AS A PETITION FOR WRIT OF CERTIORARI,
CERTIORARI IS GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS
REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V. WAINWRIGHT,
372 U.S. 335. 
..END :










DAVIS V. SOJA 374 U.S. 495 


NO. 271.  DECIDED JUNE 17, 1963 - REPORTED BELOW:  303 F.2D 601. 


JUDGMENT VACATED AND CASE REMANDED TO DISTRICT COURT WITH DIRECTIONS
TO DISMISS COMPLAINT AS MOOT. 

DAVIS, TRUSTEE, V. SOJA, INTERNAL REVENUE AGENT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

IT APPEARING FROM THE JOINT SUGGESTION OF MOOTNESS THAT THIS CASE IS
MOOT, THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT IS VACATED AND THE CASE IS REMANDED TO THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS WITH
DIRECTIONS TO DISMISS THE COMPLAINT AS MOOT. 
..END :










CARDINAL SPORTING GOODS V. EAGLETON 374 U.S. 496 


NO. 904.  DECIDED JUNE 17, 1963 - REPORTED BELOW:  213 F. SUPP. 207. 


JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS TO DISMISS
COMPLAINT AS MOOT. 

CARDINAL SPORTING GOODS CO., INC., ET AL. V. EAGLETON, ATTORNEY GENERAL
OF MISSOURI, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

IT APPEARING FROM THE MOTION TO DISMISS THAT THIS CASE IS MOOT, THE
JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI IS VACATED AND THE CASE IS REMANDED WITH DIRECTIONS TO
DISMISS THE COMPLAINT AS MOOT. 
..END :










REGALADO V. CALIFORNIA 374 U.S. 497 


NO. 10, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  SEE 193 CAL. APP. 2D 437,
14 CAL. RPTR.  217. 


REGALADO V. CALIFORNIA ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE SUPREME COURT
OF CALIFORNIA IS VACATED AND THE CASE IS REMANDED FOR FURTHER
CONSIDERATION IN LIGHT OF KER V. CALIFORNIA, ANTE, P. 23, AND MCDONALD
V. UNITED STATES, 335 U.S. 451. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 
..END :










DEARHART V. VIRGINIA 374 U.S. 498 


NO. 48, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


DEARHART V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR
WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE CASE
IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S.,
AT 358, 360. 
..END :










HARRIS V. CALIFORNIA 374 U.S. 499 


NO. 135, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  SEE 199 CAL. APP. 2D 474,
18 CAL. RPTR.  708. 


HARRIS V. CALIFORNIA ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S.,
AT 358, 360. 
..END :









DANIELS V. VIRGINIA 374 U.S. 500 


NO. 485, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


DANIELS ET AL. V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF PETERSON V. CITY
OF GREENVILLE, 373 U.S. 244. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT ON THE PREMISES STATED IN
HIS SEPARATE OPINION IN PETERSON V. CITY OF GREENVILLE AND AVENT V.
NORTH CAROLINA, 373 U.S., AT 248. 
..END :










JONES V. CALIFORNIA 374 U.S. 501 


NO. 649, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  204 CAL. APP. 2D 722, 22
CAL. RPTR.  499. 


JONES V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S.,
AT 358, 360. 
..END :









SCOTT V. UNITED STATES 374 U.S. 502 


NO. 694, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


SCOTT V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  IN LIGHT OF THE SUGGESTION OF THE
SOLICITOR GENERAL THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR
RECONSIDERATION OF THE REQUEST FOR A TRANSCRIPT OF RECORD. 
..END :














BONE V. UNITED STATES 374 U.S. 503 


NO. 716, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  305 F.2D 772. 


BONE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF SANDERS V.
UNITED STATES, 373 U.S. 1. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN WOULD DENY CERTIORARI ON THE
BASIS OF THEIR DISSENT IN SANDERS V. UNITED STATES, 373 U.S., AT 23. 
..END :











DEARHART V. VIRGINIA 374 U.S. 504 


NO. 745, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


DEARHART V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR
WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE CASE
IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353, AND BURNS V. OHIO, 360 U.S. 252. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN CONCUR IN THE RESULT. 
..END :












HERB V. WAINWRIGHT 374 U.S. 505 


NO. 751, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


HERB V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















HOLMES V. WAINWRIGHT 374 U.S. 506 


NO. 780, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


HOLMES V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















PALMER V. WAINWRIGHT 374 U.S. 507 


NO. 788, MISC.  DECIDED JUNE 17, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


PALMER V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















BAXLEY V. WAINWRIGHT 374 U.S. 508 


NO. 810, MISC.  DECIDED JUNE 17, 1963. 


MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS DENIED;
CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED. 

BAXLEY V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED. 
TREATING THE PAPERS SUBMITTED AS A PETITION FOR WRIT OF CERTIORARI,
CERTIORARI IS GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS
REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V. WAINWRIGHT,
372 U.S. 335. 
..END :










HEAD V. CALIFORNIA 374 U.S. 509 


NO. 872, MISC.  DECIDED JUNE 17, 1963.  - REPORTED BELOW:  SEE 208 CAL.
APP. 2D 360, 25 CAL. RPTR.  124. 


MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF CERTIORARI DENIED;
CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED. 

HEAD V. CALIFORNIA. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF CERTIORARI. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED BUT THE
MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF CERTIORARI IS DENIED. 
TREATING THE PAPERS SUBMITTED AS A PETITION FOR WRIT OF CERTIORARI,
CERTIORARI IS GRANTED.  THE JUDGMENT IS VACATED AND THE CASE IS
REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V. CALIFORNIA,
372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S.,
AT 358, 360. 
..END :





SHENKER V. BALTIMORE & OHIO RAILROAD CO. 374 U.S. 1 


NO. 414.  ARGUED APRIL 17, 1963 - DECIDED JUNE 10, 1963 - 303 F.2D 596,
REVERSED. 


1.  THE FEDERAL DISTRICT COURT AWARDED PETITIONER A JUDGMENT FOR
DAMAGES.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT REVERSED. 
PETITIONER MOVED FOR A REHEARING EN BANC UNDER 28 U.S.C. SEC. 46(C). 
THERE WERE THEN EIGHT ACTIVE JUDGES ON THE COURT OF APPEALS.  FOUR
VOTED TO GRANT THE REHEARING, TWO VOTED TO DENY IT, TWO ABSTAINED, AND
A REHEARING WAS DENIED.  UNDER THE UNIFORM PRACTICE OF THAT COURT,
EVERY PETITION FOR REHEARING IS SUBMITTED TO EVERY ACTIVE MEMBER OF THE
COURT, A JUDGE IS NOT REQUIRED TO ENTER A FORMAL VOTE ON THE PETITION,
AND A REHEARING IS NOT GRANTED UNLESS A MAJORITY OF THE ACTIVE MEMBERS
OF THE COURT VOTE FOR IT.  HELD:  SUCH A PROCEDURE IS CLEARLY WITHIN
THE SCOPE OF THE DISCRETION OF THE COURT OF APPEALS UNDER 28 U.S.C.
SEC. 46(C), AS INTERPRETED IN WESTERN PAC. R. CORP. V. WESTERN PAC. R.
CO., 345 U.S. 247.  PP. 4-5. 

2.  PETITIONER, AN EMPLOYEE OF RESPONDENT RAILROAD, WHO WAS PAID BY
IT AND ACTED SOLELY UNDER THE SUPERVISION OF ITS EMPLOYEES, SUED
RESPONDENT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT TO RECOVER
DAMAGES FOR INJURIES SUSTAINED WHILE LOADING MAIL ONTO A MAIL CAR OF
ANOTHER RAILROAD AT A STATION OF THE LATTER WHICH WAS MANAGED AND
OPERATED SOLELY BY RESPONDENT.  THE INJURY RESULTED FROM A DEFECTIVE
DOOR ON THE MAIL CAR IN A TRAIN OF THE OTHER RAILROAD WHICH HAD JUST
ARRIVED AT THE STATION.  UNDER INSTRUCTIONS THAT IT WAS RESPONDENT'S
DUTY TO EXERCISE ORDINARY CARE TO FURNISH ITS EMPLOYEES WITH CARS ON
WHICH THEY WORK EQUIPPED WITH REASONABLY SAFE DOORS, EVEN IF THE CARS
ARE OWNED BY ANOTHER RAILROAD, THE JURY AWARDED DAMAGES TO PETITIONER. 
THE DISTRICT COURT DENIED A MOTION FOR A JUDGMENT NOTWITHSTANDING THE
VERDICT AND ENTERED JUDGMENT FOR PETITIONER.  HELD:  THE CASE WAS
SUBMITTED TO THE JURY UNDER PROPER INSTRUCTIONS; THERE WAS REASONABLE
BASIS IN THE EVIDENCE FOR THE JURY'S VERDICT; AND THE JUDGMENT FOR
PETITIONER SHOULD HAVE BEEN SUSTAINED.  PP. 5-11. 

(A)  ON THE EVIDENCE, PETITIONER WAS CLEARLY AN EMPLOYEE OF
RESPONDENT, EVEN UNDER THE COMMON LAW LOANED-SERVANT DOCTRINE, AND IT
IS NOT NECESSARY TO CONSIDER THE EXTENT TO WHICH THAT DOCTRINE APPLIES
TO CASES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  PP. 5-7. 

(B)  ALTHOUGH THE MAIL CAR WITH THE DEFECTIVE DOOR WAS ON A TRAIN OF
THE OTHER RAILROAD WHICH HAD JUST ARRIVED AT THE STATION, IT WAS
RESPONDENT'S DUTY TO INSPECT THE CAR BEFORE PERMITTING ITS EMPLOYEES TO
WORK WITH IT.  PP. 7-11. 

SHENKER V. BALTIMORE & OHIO RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER BROUGHT AN ACTION UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, 45 U.S.C.  SECS. 51-60, IN THE FEDERAL DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA TO RECOVER FOR INJURIES CAUSED
BY THE ALLEGED NEGLIGENCE OF THE RESPONDENT BALTIMORE & OHIO RAILROAD
(B&O) AND THE PITTSBURGH & LAKE ERIE RAILROAD (P&LE).  AT THE CLOSE OF
THE EVIDENCE, THE DISTRICT COURT DIRECTED A VERDICT IN FAVOR OF THE
P&LE ON THE GROUND THAT THE EVIDENCE FAILED TO ESTABLISH THAT THE
PETITIONER WAS AN EMPLOYEE OF THAT COMPANY AS REQUIRED BY SEC. 1 OF THE
ACT (45 U.S.C. SEC. 51).  THE CASE AGAINST THE B&O, HOWEVER, WAS
SUBMITTED TO THE JURY WHICH RETURNED A VERDICT OF $40,000 FOR THE
PETITIONER.  THE DISTRICT COURT DENIED A MOTION FOR JUDGMENT N.O.V. AND
ENTERED JUDGMENT AS FOUND BY THE JURY.  ON APPEAL, THE THIRD CIRCUIT
COURT OF APPEALS, ONE JUDGE DISSENTING, REVERSED, HOLDING THAT THE
PETITIONER FAILED TO ESTABLISH NEGLIGENCE ON THE PART OF THE B&O.  303
F.2D 596.  A REHEARING EN BANC WAS DENIED.  WE GRANTED CERTIORARI.  371
U.S. 908. 

THE PETITIONER WAS EMPLOYED BY THE B&O AT ITS MAHONINGTOWN STATION IN
NEW CASTLE, PENNSYLVANIA.  THE RAILROAD COMPLEX AT MAHONINGTOWN
CONSISTED OF FOUR SETS OF TRACKS, TWO OWNED AND OPERATED BY THE B&O AND
TWO BY THE P&LE.  ON THE B&O SIDE, THE B&O MAINTAINED A STATION AND
STATION FACILITIES.  ALTHOUGH THE P&LE MAINTAINED A STATION, IT KEPT NO
EMPLOYEES, ALL NECESSARY SERVICES FOR THE TWO STATIONS BEING PROVIDED
BY B&O EMPLOYEES.  THE B&O TICKET AGENT ISSUED TICKETS IN THE B&O
STATION FOR THE P&LE TRAINS.  THE PETITIONER PROVIDED JANITOR WORK FOR
BOTH STATIONS AND ASSISTED THE LOADING AND UNLOADING OF MAIL CARS FOR
THE TRAINS OF BOTH RAILROADS.  THE PETITIONER WAS PAID BY THE B&O AND
WAS UNDER THE SOLE SUPERVISION OF THE B&O TICKET AGENT. 

ON THE DATE OF THE ACCIDENT, OCTOBER 15, 1956, THE PETITIONER HANDLED
THE MAIL FOR THE P&LE TRAIN SCHEDULED TO DEPART MAHONINGTOWN AT 12:25
A.M.  THE PETITIONER LOADED 20 TO 25 BAGS OF MAIL ON A B&O WAGON AT THE
B&O STATION.  HE CROSSED THE B&O AND P&LE TRACKS TO THE P&LE PLATFORM
AND, WHEN THE P&LE TRAIN PULLED UP, BROUGHT THE WAGON ALONGSIDE THE
MAIL CAR DOOR.  ON THIS OCCASION, IN SPITE OF THE EFFORTS OF THE
PETITIONER AND THE P&LE BAGGAGEMAN, ONE BECK, THE SLIDING DOOR ON THE
P&LE CAR WOULD NOT OPEN MORE THAN 18 OR 20 INCHES.  ACCORDING TO THE
PETITIONER, BECK COMMENTED THAT HE HAD REPORTED THE DEFECTIVE DOOR TO
THE P&LE WHICH HAD YET TO FIX IT AND THAT THEY WOULD HAVE TO GET THE
MAIL ON AND OFF AS BEST THEY COULD.  THE PETITIONER, STANDING ON THE
WAGON, HAD NO DIFFICULTY THROWING THE SMALLER BAGS IN THE RESTRICTED
OPENING.  THE LARGER ONES, HOWEVER, WEIGHING FROM 80 TO 100 POUNDS,
REQUIRED THE PETITIONER "TO TWIST AROUND," AND "TO KEEP PUSHING AND
FORCING THEM" TO GET THEM IN THE OPENING.  IN THE PROCESS OF THIS
UNUSUAL EXERTION, THE PETITIONER FELT SOMETHING SNAP IN HIS BACK.  HE
REPORTED THE INJURY IMMEDIATELY TO THE B&O TICKET AGENT.  TREATMENT OF
THE INJURY EVENTUALLY REQUIRED THE REMOVAL OF A RUPTURED INTERVERTEBRAL
DISC AND RESULTED IN THE PETITIONER'S PERMANENT DISABILITY.  ON THE
BASIS OF THIS EVIDENCE, THE JURY FOUND FOR THE PETITIONER. 

BEFORE CONSIDERING THE MERITS OF THE DECISION BELOW, THE PETITIONER
RAISES A PROCEDURAL POINT, CLAIMING THAT HE WAS DENIED A REHEARING EN
BANC IN THE THIRD CIRCUIT COURT OF APPEALS IN VIOLATION OF HIS RIGHTS
UNDER 28 U.S.C. SEC. 46(C).  AT THE TIME THE PETITIONER FILED HIS
MOTION FOR REHEARING EN BANC THERE WERE EIGHT ACTIVE JUDGES SERVING ON
THE THIRD CIRCUIT.  FOUR JUDGES VOTED TO GRANT THE REHEARING, TWO VOTED
TO DENY, AND TWO ABSTAINED.  THE REHEARING WAS DENIED.  THE PETITIONER
CLAIMS THAT TO GRANT A REHEARING EN BANC, THE STATUTE REQUIRES ONLY A
MAJORITY OF THOSE PRESENT.  THE THIRD CIRCUIT REQUIRES AN ABSOLUTE
MAJORITY OF THE ACTIVE MEMBERS OF THE COURT.  SECTION 46(C) PROVIDES: 

"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." 

THE COURT HAD OCCASION TO CONSIDER THIS SECTION AT LENGTH IN WESTERN
PAC. R. CORP. V. WESTERN PAC. R. CO., 345 U.S. 247.  IT THERE SAID: 

"IN OUR VIEW, SEC. 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."  ID.,
AT 250. 

THE COURT WENT ON TO SAY THAT THE RIGHTS OF THE LITIGANT GO NO
FURTHER THAN THE RIGHT TO KNOW THE ADMINISTRATIVE MACHINERY THAT WILL
BE FOLLOWED AND THE RIGHT TO SUGGEST THAT THE EN BANC PROCEDURE BE SET
IN MOTION IN HIS CASE.  THE PRACTICE OF THE THIRD CIRCUIT HAS BEEN
FULLY REVEALED BY JUDGE MARIS IN HEARING AND REHEARING CASES IN BANC,
14 F.R.D. 91, WHICH WAS REFERRED TO WITH APPROVAL BY THIS COURT IN
UNITED STATES V. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685, 688, N. 5. 
ALTHOUGH EVERY PETITION FOR REHEARING IS SUBMITTED TO EVERY MEMBER OF
THE COURT, A JUDGE IS NOT REQUIRED TO ENTER A FORMAL VOTE ON THE
PETITION.  SUCH A PROCEDURE IS CLEARLY WITHIN THE SCOPE OF THE COURT'S
DISCRETION AS WE SPOKE OF IT IN WESTERN PACIFIC.  FOR THIS COURT TO
HOLD OTHERWISE WOULD INVOLVE IT UNNECESSARILY IN THE INTERNAL
ADMINISTRATION OF THE COURTS OF APPEALS. 

TURNING TO THE MERITS, THERE CAN BE NO QUESTION THAT THE PETITIONER
IS AN EMPLOYEE OF THE B&O AS REQUIRED BY SEC. 1 OF THE F.E.L.A.
ALTHOUGH THE B&O SUGGESTS THAT THE PETITIONER MAY HAVE BEEN THE
EMPLOYEE OF THE P&LE WITHIN THE MEANING OF THE COMMON LAW LOANED
SERVANT DOCTRINE, STANDARD OIL CO. V. ANDERSON, 212 U.S. 215; LINSTEAD
V. CHESAPEAKE & OHIO R. CO., 276 U.S. 28, 32-34, THERE IS NO EVIDENCE
IN THE RECORD TO SUPPORT SUCH A CONCLUSION.  IN DESCRIBING THE LOANED
SERVANT DOCTRINE, THE COURT IN ANDERSON STATED THAT WHEN THE NOMINAL
EMPLOYER FURNISHES A THIRD PARTY "WITH MEN TO DO THE WORK AND PLACES
THEM UNDER HIS EXCLUSIVE CONTROL IN THE PERFORMANCE OF IT, THEN THOSE
MEN BECOME PRO HAC VICE THE SERVANTS OF HIM TO WHOM THEY ARE
FURNISHED."  212 U.S., AT 221.  THE COURT CONCLUDED THAT UNDER THE
COMMON LAW LOANED-SERVANT DOCTRINE IMMEDIATE CONTROL AND SUPERVISION IS
CRITICAL IN DETERMINING FOR WHOM THE SERVANTS ARE PERFORMING SERVICES. 
IN THE PRESENT CASE, THE UNDISPUTED FACTS SHOW THAT THE PETITIONER WAS
AT ALL TIMES PAID BY THE B&O AND UNDER THE SOLE SUPERVISION OF B&O
EMPLOYEES.  (FN1)  THE INTIMATIONS OF THE B&O THAT THE PETITIONER MIGHT
HAVE BEEN GIVEN DIRECTIONS BY THE P&LE BAGGAGEMAN IS AT MOST AN EXAMPLE
OF THE MINIMUM COOPERATION NECESSARY TO CARRY OUT A COORDINATED
UNDERTAKING, AND, AS NOTED IN ANDERSON, CANNOT AMOUNT TO CONTROL OR
SUPERVISION.  212 U.S., AT 226.  THE WHOLE TENOR OF THE SERVICES THE
B&O PROVIDES FOR THE P&LE SPEAKS OF AN AGREEMENT BY THE B&O TO MANAGE
AND OPERATE THE P&LE STATION AT MAHONINGTOWN.  ON SUCH EVIDENCE, THE
PETITIONER IS CLEARLY AN EMPLOYEE OF THE B&O EVEN UNDER THE COMMON LAW
LOANED-SERVANT DOCTRINE, AND WE THEREFORE NEED NOT CONSIDER THE EXTENT
TO WHICH THAT DOCTRINE APPLIES TO CASES UNDER THE F.E.L.A.  SEE
LINSTEAD V. CHESAPEAKE & OHIO R. CO., SUPRA; COMPARE SINKLER V.
MISSOURI PAC. R. CO., 356 U.S. 326, 329-330. 

THE ONLY REMAINING ISSUE IS THE NEGLIGENCE, IF ANY, OF THE RESPONDENT
B&O.  THE TRIAL JUDGE INSTRUCTED THE JURY THAT: 

"  ...  A RAILROAD IS UNDER A DUTY TO EXERCISE ORDINARY PRUDENCE,
CAUTION AND CARE TO INSPECT AND TO FURNISH ITS EMPLOYEES WITH CARS ON
WHICH THEY WORK EQUIPPED WITH REASONABLY SAFE DOORS, EVEN THOUGH THE
CARS ARE OWNED BY ANOTHER RAILROAD.  A FAILURE OF THE B&O RAILROAD TO
DO SO IS NEGLIGENCE, PROVIDING THAT THE RAILROAD CAN FORESEE THAT ONE
OF ITS EMPLOYEES MAY BE INJURED IN PERFORMING HIS WORK IN CONNECTION
WITH THAT CAR AND ITS EQUIPMENT WHICH ARE NOT REASONABLY SAFE." 

NO EXCEPTION WAS TAKEN TO THIS CHARGE.  IN HIS OPINION DENYING THE
B&O'S MOTION FOR JUDGMENT N.O.V., THE TRIAL JUDGE RELIED ON A SERIES OF
COURT OF APPEALS DECISIONS STANDING FOR THE MORE BROAD PROPOSITION THAT
A RAILROAD HAS THE NONDELEGABLE DUTY TO PROVIDE ITS EMPLOYEES WITH A
SAFE PLACE TO WORK EVEN WHEN THEY ARE REQUIRED TO GO ONTO THE PREMISES
OF A THIRD PARTY OVER WHICH THE RAILROAD HAS NO CONTROL.  SEE KOOKER V.
PITTSBURGH & LAKE ERIE R. CO., 258 F.2D 876; CHICAGO GREAT WESTERN R.
CO. V. CASURA, 234 F.2D 441; BEATTIE V. ELGIN, J.&E.R. CO., 217 F.2D
863.  THESE DECISIONS ARE IN ACCORD WITH THE OPINIONS OF THIS COURT IN
BAILEY V. CENTRAL VERMONT R. CO., 319 U.S. 350; ELLIS V. UNION PAC. R.
CO., 329 U.S. 649; HARRIS V. PENNSYLVANIA R. CO., 361 U.S. 15,
REVERSING 168 OHIO ST. 582, 156 N.E.2D 822.  THE PRESENT CASE HAS BEEN
ARGUED TO US ON THE BASIS OF THESE SAME DECISIONS AND THE SAFE-PLACE-TO
WORK DOCTRINE.  THE RESPONDENT ADMITS THE GENERAL STATEMENTS OF THE
DOCTRINE IN THESE CASES.  IT BASES ITS DEFENSE SOLELY ON THE
PROPOSITION THAT BECAUSE THE P&LE TRAIN HAD JUST PULLED INTO THE
STATION, THE B&O DID NOT HAVE SUFFICIENT OPPORTUNITY TO OBTAIN ACTUAL
OR CONSTRUCTIVE NOTICE OF THE DEFECTIVE MAIL CAR DOOR.  THE RESPONDENT
RELIES ON TWO LOWER COURT CASES HOLDING THAT WHERE THE DEFECT IN THE
PREMISES OF THE THIRD PARTY AROSE WITHIN MINUTES OR HOURS OF THE
ACCIDENT, THERE WAS INSUFFICIENT TIME AS A MATTER OF LAW FOR THE
RAILROAD TO BE HELD TO HAVE NOTICE.  KAMINSKI V. CHICAGO R.&I.R. CO.,
200 F.2D 1; WETHERBEE V. ELGIN, J.&E.R. CO., 191 F.2D 302, SUBSEQUENT
APPEAL REPORTED IN 204 F.2D 755, CERT. DENIED, 346 U.S. 867. 

WHATEVER THE VALIDITY OF THESE LAST TWO CASES, THEY DO NOT HAVE
RELEVANCE HERE.  WE HOLD THAT THE B&O HAD A DUTY TO INSPECT P&LE CARS
BEFORE PERMITTING ITS EMPLOYEES TO WORK WITH THEM.  THE STANDARD OF
CARE APPLICABLE TO THE USE OF CARS BELONGING TO A FOREIGN RAILROAD WAS
SETTLED LONG BEFORE THE ACCIDENT IN THIS CASE.  IN BALTIMORE & POTOMAC
R. CO. V. MACKEY, 157 U.S. 72, AN EMPLOYEE OF THE BALTIMORE & POTOMAC
WAS KILLED WHEN A DEFECTIVE BRAKE DID NOT HOLD ON A FREIGHT CAR HAULED
BY THE BALTIMORE & POTOMAC, BUT BELONGING TO ANOTHER RAILROAD.  RELYING
ON THE LANGUAGE OF AN EARLIER NEW YORK DECISION, GOTTLIEB V. NEW YORK &
LAKE ERIE R. CO., 100 N.Y. 462, 467, 3 N.E. 344, 345, THE COURT
CONCLUDED THAT A RAILROAD: 

"  ...  IS BOUND TO INSPECT FOREIGN CARS JUST AS IT WOULD INSPECT ITS
OWN CARS.  IT OWES THE DUTY OF INSPECTION AS MASTER  ...  .  WHEN CARS
COME TO IT WHICH HAVE DEFECTS VISIBLE OR DISCOVERABLE BY ORDINARY
INSPECTION, IT MUST EITHER REMEDY SUCH DEFECTS OR REFUSE TO TAKE SUCH
CARS; SO MUCH AT LEAST IS DUE FROM IT TO ITS EMPLOYEES."  157 U.S., AT
P. 90. 

THE COURT DID NOT HAVE TO LOOK FAR FOR THE "SOUND REASON AND PUBLIC
POLICY" BEHIND THIS PRINCIPLE.   RELYING ON THE LANGUAGE OF THE LOWER
COURT, THE COURT SAID: 

"IT WOULD BE MOST UNREASONABLE AND CRUEL TO DECLARE, THAT, WHILE THE
FAITHFUL WORKMAN MAY OBTAIN COMPENSATION FROM A COMPANY FOR DEFECTIVE
ARRANGEMENT OF ITS OWN CARS, HE WOULD BE WITHOUT REDRESS AGAINST THE
SAME COMPANY IF THE DAMAGED CAR THAT OCCASIONED THE INJURY HAPPENED TO
BELONG TO ANOTHER COMPANY."  157 U.S., AT P. 89. 

THIS DECISION WAS REAFFIRMED AND EXTENDED A SHORT TIME LATER IN TEXAS
& PAC. R. CO. V. ARCHIBALD, 170 U.S. 665.  IN THAT CASE, THE TEXAS &
PACIFIC ACCEPTED A CAR OF THE COTTON BELT RAILWAY FOR LOADING AT A
COTTONSEED OIL MILL ON A SPUR OFF THE TEXAS & PACIFIC TRACK.  IN THE
PROCESS OF SWITCHING, AN EMPLOYEE OF THE TEXAS & PACIFIC WAS SERIOUSLY
INJURED DUE TO A DEFECTIVE COUPLING ON THE FOREIGN CAR.  THE TEXAS &
PACIFIC ATTEMPTED TO DISTINGUISH THE BALTIMORE & POTOMAC CASE ON THE
GROUND THAT THE DUTY TO INSPECT DID NOT APPLY WHEN A RAILROAD ACCEPTED
A FOREIGN CAR ONLY FOR LOADING RATHER THAN FOR HAULING OVER ITS LINE IN
ONE OF ITS TRAINS.  THE COURT DISMISSED THE ARGUMENT SUMMARILY: 

"THE ARGUMENT WANTS FOUNDATION IN REASON AND IS UNSUPPORTED BY ANY
AUTHORITY.  IN REASON, BECAUSE, AS THE DUTY OF THE COMPANY TO USE
REASONABLE DILIGENCE TO FURNISH SAFE APPLIANCES IS EVER PRESENT, AND
APPLIES TO ITS ENTIRE BUSINESS, IT IS BEYOND REASON TO ATTEMPT BY A
PURELY ARBITRARY DISTINCTION TO TAKE A PARTICULAR PART OF THE BUSINESS
OF THE COMPANY OUT OF THE OPERATION OF THE GENERAL RULE, AND THEREBY TO
EXEMPT IT, AS TO THE BUSINESS SO SEPARATED, FROM ANY OBLIGATION TO
OBSERVE REASONABLE PRECAUTIONS TO FURNISH APPLIANCES WHICH ARE IN GOOD
CONDITION."  170 U.S., AT P. 670.  (FN2) 

SEE GENERALLY, ANNOTATION, 41 L.R.A. 101.  THE RULES ADOPTED IN THESE
TWO CASES ARE UNAVOIDABLY APPLICABLE TO THE PRESENT CASE.  THE B&O
REQUIRED THE PETITIONER TO WORK WITH CARS BELONGING TO THE P&LE, TAKING
NO PRECAUTIONS WHATSOEVER TO PROTECT HIM FROM POSSIBLE DEFECTS IN THESE
CARS, DEFECTS FOR WHICH IT WOULD BE LIABLE SHOULD THEY APPEAR IN ITS
OWN CARS.  AS TEXAS & PACIFIC MAKES ABUNDANTLY CLEAR, THERE IS NO DE
MINIMIS RULE CALLED INTO PLAY ON ACCOUNT OF THE BREVITY OF THE SOJOURN
OF THE P&LE TRAIN IN MAHONINGTOWN STATION, SINCE THE LENGTH OF THE
SOJOURN IS IRRELEVANT TO THE DUTY OWED TO THE EMPLOYEE WORKING WITH THE
CAR.  NOR IS IT AN ANSWER TO CLAIM THAT THE B&O LACKED CONTROL OR
SUPERVISION OVER THE P&LE CAR.  SUCH ARGUMENTS HAVE NEVER SUPPORTED AN
EXCEPTION TO THE EMPLOYER'S DUTY TO PROVIDE A SAFE PLACE TO WORK,
CHICAGO GREAT WESTERN R. CO. V. CASURA, SUPRA, P. 447; BEATTIE V.
ELGIN, J.&E.R. CO., SUPRA, P. 865; TERMINAL R. ASSN. OF ST. LOUIS V.
FITZJOHN, 165 F.2D 473, 476-477, AND HAVE NO GREATER RELEVANCE HERE
WITH RESPECT TO THE DUTY TO PROVIDE REASONABLY SAFE CARS, SEE
ANNOTATION, 41 L.R.A. 101.  THE B&O MAY ADEQUATELY PROTECT ITSELF BY
REFUSING TO PERMIT ITS EMPLOYEES TO SERVICE THE CAR.  SINCE THE
INSTRUCTIONS TO THE JURY ADEQUATELY REFLECT THE HOLDINGS IN THESE CASES
AND SINCE THE B&O'S FAILURE TO INSPECT IS UNCONTESTED, THE JURY VERDICT
SHOULD HAVE BEEN AFFIRMED. 

ALTHOUGH RECOVERY IN THIS CASE IS SUPPORTED BY THE COMMON LAW, IT IS
ALSO REQUIRED BY ANY REASONABLE CONSTRUCTION OF THE FEDERAL EMPLOYERS'
LIABILITY ACT ITSELF.  AS WE STATED IN SINKLER V. MISSOURI PAC. R. CO.,
356 U.S. 326, 330:  "IT WAS THE CONCEPTION OF THIS LEGISLATION THAT THE
RAILROAD WAS A UNITARY ENTERPRISE, ITS ECONOMIC RESOURCES OBLIGATED TO
BEAR THE BURDEN OF ALL INJURIES BEFALLING THOSE ENGAGED IN THE
ENTERPRISE ARISING OUT OF THE FAULT OF ANY OTHER MEMBER ENGAGED IN THE
COMMON ENDEAVOR."  IF RECOVERY WERE DENIED IN THIS CASE, THE RAILROADS,
BY THE SIMPLE EXPEDIENT OF DOING EACH OTHER'S WORK, COULD TIE THEIR
EMPLOYEES UP IN LEGAL TECHNICALITIES OVER THE PROPER RAILROAD TO SUE
FOR INJURIES AND PERHAPS REMOVE FROM COVERAGE OF THE ACT A SIGNIFICANT
AREA OF RAILROAD ACTIVITY.  IT WOULD SUBJECT THE EMPLOYEE ONCE MORE TO
THE STRICTER NEGLIGENCE STANDARDS OF THE COMMON LAW AND SUCH
DEBILITATING DOCTRINES AS ASSUMPTION OF RISK.  CF. TEXAS & PAC. R. CO.
V. ARCHIBALD, 170 U.S. 665, 673. 

IN OUR OPINION THE CASE WAS SUBMITTED TO THE JURY UNDER PROPER
INSTRUCTIONS, AND THERE WAS A REASONABLE BASIS IN THE EVIDENCE FOR THE
VERDICT WHICH THE JURY RETURNED.  REVERSED. 

FN1  THE TESTIMONY OF THE B&O TICKET AGENT ON DUTY AT THE TIME OF THE
PETITIONER'S INJURY STANDS UNDISPUTED IN THE RECORD: 

"Q.  (BY THE COURT) DID THE P&LE HAVE ANY BOSS THERE THAT NIGHT? 

"A.  NO, SIR, THE P&LE DIDN'T HAVE ANY EMPLOYEES WHATSOEVER CONNECTED
WITH THAT OPERATION THERE. 

"Q.  UNDER WHOSE SUPERVISION WAS MR. SHENKER? 

"A.  HE WAS UNDER THE TICKET AGENT, MR. BOYD. 

"Q.  ON THAT TURN WHEN HE GOT HURT? 

"A.  ON THAT TURN HE WAS UNDER MY SUPERVISION. 

"Q.  DURING THE FOUR MONTHS YOU SAY HE WORKED THERE, DID ANY P&LE
EMPLOYEE GIVE DIRECTIONS OR ORDERS TO THE PLAINTIFF? 

"A.  NO, SIR. 

"Q.  FROM WHOM DID HE RECEIVE DIRECTION AND ORDERS, INSTRUCTIONS? 

"A.  FROM ME OR MR. BOYD WOULD LET ME KNOW WHAT HE WANTED DONE AND I
WOULD TELL MR. SHENKER. 

"Q.  AND YOU AND MR. BOYD WERE EXCLUSIVELY BALTIMORE & OHIO RAILROAD
EMPLOYEES? 

"A.  YES, SIR." 

FN2  THE COURT IN TEXAS & PACIFIC WENT ON TO HOLD THAT THE RAILROAD
WILL NOT BE HELD TO ITS DUTY TO INSPECT WHERE THE EMPLOYEE HIMSELF
BECOMES AWARE OF THE DEFECT YET CONTINUES TO WORK WITH THE CAR WITH
KNOWLEDGE OF ITS DEFECT.  THIS EXCEPTION TO THE RULE WAS BASED ON THE
BELIEF THAT THE EMPLOYEE ASSUMES THE RISK OF HANDLING APPLIANCES WHICH
ARE KNOWN TO BE DEFECTIVE.  170 U.S., AT PP. 672-673.  THIS EXCEPTION,
OF COURSE, IS NO LONGER RELEVANT UNDER THE F.E.L.A., SINCE SEC. 4 OF
THE ACT EXPRESSLY ELIMINATES ASSUMPTION OF RISK AS A DEFENSE TO
NEGLIGENCE ON THE PART OF THE EMPLOYER.  IN ITS PLACE, THE RAILROAD MAY
RAISE CONTRIBUTORY NEGLIGENCE ON THE PART OF THE EMPLOYEE IN MITIGATION
OF DAMAGES, A DEFENSE THAT WAS RAISED IN THIS CASE AND ON WHICH THE
JURY WAS PROPERLY CHARGED. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

WITH ALL DEFERENCE, I MUST RESPECTFULLY DISSENT.  WE ARE NOT HERE
DEALING WITH A SITUATION IN WHICH A LOWER COURT HAS SO DISREGARDED
APPLICABLE LAW AS TO REQUIRE CORRECTION HERE.  THIS IS SIMPLY A CASE IN
WHICH THE EVIDENCE IS INSUFFICIENT TO SUSTAIN LIABILITY OF THE
RESPONDENT B&O AND IN WHICH A PERHAPS MORE SUBSTANTIAL CLAIM AGAINST
THE P&LE WAS ABANDONED BY THE PETITIONER BELOW.  ANY HIATUS IN
PROTECTION OF THE PETITIONER EXISTS NOT BECAUSE OF INADEQUACIES IN THE
LAW, BUT SOLELY BECAUSE OF INADEQUACIES IN THE EVIDENCE. 

NORMALLY, IN A CASE SUCH AS THIS IN WHICH THE DEFENDANT'S OWN
NEGLIGENCE DID NOT CREATE THE HAZARDOUS CONDITION, ACTUAL OR
CONSTRUCTIVE NOTICE TO THE DEFENDANT OF THE INJURY-PRODUCING DEFECT IS
A PREREQUISITE TO NEGLIGENCE AND, THEREFORE, TO LIABILITY.  SEE, E.G.,
SANO V. PENNSYLVANIA R. CO., 282 F.2D 936, 938; DOBSON V. GRAND TRUNK
W.R. CO., 248 F.2D 545, 548; ATLANTIC C.L.R. CO. V. COLLINS, 235 F.2D
805, 808, CERT. DENIED 352 U.S. 942; KAMINSKI V. CHICAGO R.&I.R. CO.,
200 F.2D 1, 4.  SEE ALSO RINGHISER V. CHESAPEAKE & O.R. CO., 354 U.S.
901; WETHERBEE V. ELGIN, J.&E.R. CO., 191 F.2D 302, SUBSEQUENT APPEAL
REPORTED IN 204 F.2D 755, CERT. DENIED, 346 U.S. 867.  THUS, GIVEN THE
FAILURE OF THE PETITIONER TO INTRODUCE EVIDENCE TENDING TO SHOW THAT
THE RESPONDENT B&O KNEW, OR IN THE EXERCISE OF REASONABLE CARE SHOULD
HAVE KNOWN, OF THE DEFECTIVE DOOR, THE JUDGMENT ENTERED BELOW IN FAVOR
OF THE B&O SHOULD BE SUSTAINED.  (FN1) 

THE COURT SEEKS TO AVOID THE APPLICATION OF THESE ORDINARILY
CONTROLLING PRINCIPLES BY INVOKING SEVERAL CASES, DECIDED PRIOR TO
ENACTMENT OF THE F.E.L.A., WHICH, IT HOLDS, REQUIRE THAT, IN ORDER TO
DISCHARGE ITS DUTY "TO USE REASONABLE CARE IN FURNISHING THE PETITIONER
...  WITH A SAFE PLACE TO  ...  WORK," BAILEY V. CENTRAL VERMONT R.
CO., 319 U.S. 350, 352, (FN2) THE B&O MUST INSPECT THE P&LE CARS BEFORE
B&O EMPLOYEES ARE ALLOWED OR DIRECTED TO WORK ON THEM.  EVEN ACCEPTING,
ARGUENDO, THE GENERAL APPLICABILITY HERE OF THE PRINCIPLE IMPOSING ON
THE B&O THE DUTY TO INSPECT THE CARS WHICH IT SERVICES FOR THE P&LE,
THE RESULT REACHED BY THE COURT DOES NOT FOLLOW.  SUCH A DUTY MAY
EXIST, TO BE SURE, BUT THE OBLIGATION CAN BE NO MORE THAN TO CONDUCT
REASONABLE, NONNEGLIGENT INSPECTIONS, AND THE LIABILITY WHICH WOULD
ACCRUE FROM BREACH OF SUCH A DUTY WOULD BE RESPONSIBILITY FOR DAMAGES
OCCURRING AS A RESULT OF THE NEGLIGENT PERFORMANCE OR THE
NONPERFORMANCE OF THAT DUTY.  IN A MEANINGFUL SENSE, THEN, IMPOSITION
OF A DUTY TO INSPECT IS NO MORE THAN A SPECIFIC APPLICATION OF THE
CONCEPT OF CONSTRUCTIVE KNOWLEDGE, SINCE IT IS IMPLICIT IN THE
PRINCIPLE THAT ONE IS CHARGEABLE WITH KNOWLEDGE OF THAT WHICH IN THE
EXERCISE OF REASONABLE CARE HE SHOULD HAVE KNOWN.  HERE, THAT WOULD
MEAN THAT IN THE EXERCISE OF REASONABLE CARE THE B&O SHOULD HAVE
INSPECTED THE P&LE CARS AND IS CHARGEABLE WITH KNOWLEDGE OF THAT WHICH
A REASONABLE INSPECTION WOULD HAVE SHOWN. 

THE COURT, HOWEVER, SAYS MERELY THAT THE B&O HAD A DUTY TO INSPECT
AND THAT, HAVING FAILED TO INSPECT, IT IS LIABLE TO THE PETITIONER FOR
THE DEFECT WHICH APPARENTLY CAUSED HIS INJURY.  I FIND THIS REASONING
UNCONVINCING. 

WHILE THE COURT DECLARES THAT IT IS UNDISPUTED THAT THE B&O DID NOT
INSPECT, THERE IS SIMPLY NO EVIDENCE IN THE RECORD WITH REGARD TO
INSPECTION.  MOREOVER, EVEN IF AN INFERENCE OF FAILURE TO INSPECT WERE
SUPPORTABLE, THERE IS NO BASIS FOR ASSUMING, AS THE COURT DOES AND MUST
DO TO SUSTAIN ITS RESULT, THAT A REASONABLE, NONNEGLIGENT INSPECTION
PROCEDURE WOULD, IN FACT, HAVE DISCLOSED THE DEFECT WHICH IS THE BASIS
OF THE PETITIONER'S CLAIM.  EVEN WHEN THERE DOES EXIST A DUTY OF
INSPECTION, THE MERE EXISTENCE OF A DEFECT DOES NOT ITSELF CREATE
LIABILITY; IT MUST ALSO BE SHOWN THAT REASONABLE, NONNEGLIGENT
INSPECTION PROCEDURES WOULD HAVE DISCLOSED THE DEFECT.  (FN3) EVIDENCE
OF THIS LIABILITY-PRODUCING FACTOR WAS NOT INTRODUCED BY THE
PETITIONER.  THE RECORD IS DEVOID OF EVIDENCE AS TO THE LENGTH OF TIME
THE DEFECT EXISTED PRIOR TO THE PETITIONER'S INJURY, (FN4) AND AS TO
WHETHER, EVEN UNDER AN EXTREMELY CAREFUL AND NONNEGLIGENT INSPECTION
PROCEDURE, THE DEFECT WOULD HAVE BEEN DISCOVERED PRIOR TO THE TIME OF
PETITIONER'S INJURY. 

UNDER THE RATIONALE AND RESULT OF THIS CASE, A RAILROAD WOULD BE
LIABLE FOR A DEFECT WHICH FIRST APPEARED IMMEDIATELY PRIOR TO THE
INJURY FOR WHICH RECOVERY IS SOUGHT AND WHICH EVEN THE MOST SCRUPULOUS
KIND OF INSPECTION PROCEDURE COULD NEITHER HAVE AVOIDED NOR DETECTED. 
WHAT THE COURT APPEARS TO HAVE DONE IS TO CREATE NOT SIMPLY A DUTY OF
INSPECTION, BUT AN ABSOLUTE DUTY OF DISCOVERY OF ALL DEFECTS; IN SHORT,
IT HAS MADE THE B&O THE INSURER OF THE CONDITION OF ALL PREMISES AND
EQUIPMENT, WHETHER ITS OWN OR OTHERS, UPON WHICH ITS EMPLOYEES MAY
WORK.  THIS IS THE WHOLLY SALUTARY PRINCIPLE OF COMPENSATION FOR
INDUSTRIAL INJURY INCORPORATED BY WORKMEN'S COMPENSATION STATUTES, BUT
IT IS NOT THE ONE CREATED BY THE F.E.L.A., WHICH PREMISES LIABILITY
UPON NEGLIGENCE OF THE EMPLOYING RAILROAD.  IT IS MY VIEW THAT, AS A
MATTER OF POLICY, EMPLOYEES SUCH AS THE PETITIONER, WHO ARE INJURED IN
THE COURSE OF THEIR EMPLOYMENT, SHOULD BE ENTITLED TO PROMPT AND
ADEQUATE COMPENSATION REGARDLESS OF THE EMPLOYER'S NEGLIGENCE AND FREE
FROM TRADITIONAL COMMON-LAW RULES LIMITING RECOVERY.  BUT CONGRESS HAS
ELECTED A DIFFERENT TEST OF LIABILITY WHICH, UNTIL CHANGED, COURTS ARE
OBLIGATED TO APPLY. 

FN1  THE PETITIONER DOES NOT HERE ARGUE THAT NOTICE OF THE DEFECT TO
THE P&LE WAS ALSO SUFFICIENT NOTICE TO RESPONDENT B&O. 

FN2  ALTHOUGH LANGUAGE IN ITS OPINION SUGGESTS THE CONTRARY, SEE PP.
7, 10, ANTE, I DO NOT UNDERSTAND THE COURT TODAY TO BE DIRECTLY
DECLARING AN ABSOLUTE DUTY TO PROVIDE A SAFE PLACE TO WORK WITHOUT
REGARD TO NEGLIGENCE, SINCE THE VERY CASES CITED BY THE COURT INDICATE
THAT THE DUTY IS TO EXERCISE REASONABLE CARE WITH RESPECT THERETO. 
INSTEAD, THE COURT IGNORES THE STATUTORY CONCEPT OF NEGLIGENCE IN
SETTING OUT THE DUTY OF INSPECTION IT IMPOSES, A RESULT WHICH, FOR THE
REASONS STATED INFRA, IS ERRONEOUS AND VIOLATES THE CLEAR LANGUAGE OF
THE GOVERNING STATUTE. 

FN3  THIS, IN FACT, IS THE APPARENT RULE OF THE VERY CASES RELIED
UPON BY THE COURT TO SUBJECT THE B&O TO LIABILITY HERE.  IN BALTIMORE &
POTOMAC R. CO. V. MACKEY, 157 U.S. 72, CITED BY THE MAJORITY AT P. 8,
ANTE, THE COURT BASED LIABILITY ON THE OPERATIVE "PRINCIPLE THAT A
RAILROAD COMPANY IS UNDER A LEGAL DUTY NOT TO EXPOSE ITS EMPLOYES TO
DANGERS ARISING FROM SUCH DEFECTS IN FOREIGN CARS AS MAY BE DISCOVERED
BY REASONABLE INSPECTION BEFORE SUCH CARS ARE ADMITTED INTO ITS
TRAIN."  157 U.S., AT 91.  THE SECOND CASE UPON WHICH THE MAJORITY
BASES ITS RESULT HERE, SEE PP. 8-9, ANTE, SIMPLY APPLIES THIS SAME
PRINCIPLE TO A SOMEWHAT DIFFERENT SET OF FACTS, AGAIN DECLARING
LIABILITY FOR INJURY-PRODUCING DEFECTS "DISCOVERABLE BY PROPER
INSPECTION."  TEXAS & PAC. R. CO. V. ARCHIBALD, 170 U.S. 665, 672.  THE
NATURE AND TIMING OF THE REQUIRED INSPECTION - BUT PROBABLY NOT, AS THE
COURT HERE DECLARES, THE DUTY OF INSPECTION ITSELF - PRESUMABLY DEPEND,
AS A FUNCTION OF ITS REASONABLENESS, ON A NUMBER OF FACTORS, INCLUDING
THE DURATION OF THE TIME THE CAR IS AVAILABLE TO THE DEFENDANT FOR
INSPECTION AND THE MANNER IN WHICH IT IS RECEIVED.  IN BOTH OF THE
CITED CASES, THE "FOREIGN" CAR WAS IN THE POSSESSION AND ON THE TRACKS
OF THE NAMED DEFENDANT UPON WHICH LIABILITY WAS IMPOSED. 

FN4  THE STATEMENT ATTRIBUTED TO THE P&LE BAGGAGEMAN BY THE
PETITIONER THAT THE DEFECTIVE DOOR HAD BEEN REPORTED TO THE P&LE DOES
NOT, OF COURSE, SHED ANY LIGHT ON THE LENGTH OF TIME THE DEFECT HAS
CONTINUED TO EXIST.  THE REPORT MAY WELL HAVE BEEN MADE ONLY SHORTLY
BEFORE THE PETITIONER WAS INJURED. 
..END :















FITZGERALD V. UNITED STATES LINES CO. 374 U.S. 16 


NO. 463.  ARGUED APRIL 18, 1963 - DECIDED JUNE 10, 1963 - 306 F.2D 461,
REVERSED. 


CLAIMING THAT HE HAD TWISTED AND STRAINED HIS BACK WHILE WORKING FOR
RESPONDENT ON ITS SHIP, A SEAMAN SUED RESPONDENT FOR DAMAGES BASED ON
THE NEGLIGENCE OF RESPONDENT AND THE UNSEAWORTHINESS OF THE SHIP AND
FOR A SMALLER AMOUNT BASED ON RESPONDENT'S FAILURE TO PROVIDE HIM WITH
MEDICAL ATTENTION, MAINTENANCE AND CURE AND WAGES.  HE DEMANDED A JURY
TRIAL ON ALL THE CLAIMS.  THE TRIAL JUDGE GRANTED A JURY TRIAL ON THE
JONES ACT AND UNSEAWORTHINESS CLAIMS; BUT HE HELD THE QUESTION OF
RECOVERY UNDER MAINTENANCE AND CURE IN ABEYANCE TO TRY HIMSELF AFTER
JURY TRIAL OF THE OTHER ISSUES.   THE JURY RETURNED A VERDICT FOR
RESPONDENT ON THE NEGLIGENCE AND UNSEAWORTHINESS CLAIMS.  AFTER HEARING
TESTIMONY IN ADDITION TO THAT PRESENTED TO THE JURY, THE JUDGE AWARDED
THE SEAMAN A SMALL AMOUNT FOR MAINTENANCE AND CURE.  SITTING EN BANC,
THE COURT OF APPEALS AFFIRMED BY A DIVIDED VOTE.  HELD:  A MAINTENANCE
AND CURE CLAIM JOINED WITH A JONES ACT CLAIM MUST BE SUBMITTED TO THE
JURY WHEN BOTH ARISE OUT OF ONE SET OF FACTS.  IN THIS CASE, THE SEAMAN
IS ENTITLED TO A JURY TRIAL AS OF RIGHT ON HIS MAINTENANCE AND CURE
CLAIM, EVEN THOUGH THE JONES ACT CLAIM WAS DECIDED AGAINST HIM AND THIS
COURT DECLINED TO REVIEW THAT CLAIM ON CERTIORARI.  PP. 16-22. 

FITZGERALD, PUBLIC ADMINISTRATOR, V. UNITED STATES LINES CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ANDRES SAN MARTIN, A SEAMAN, BROUGHT THIS ACTION IN THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AGAINST THE RESPONDENT
UNITED STATES LINES COMPANY.  HIS COMPLAINT ALLEGED THAT HE HAD TWISTED
AND STRAINED HIS BACK WHILE WORKING FOR RESPONDENT ON ITS SHIP.  HE
CLAIMED $75,000 DAMAGES BASED ON THE NEGLIGENCE OF RESPONDENT AND ON
THE UNSEAWORTHINESS OF THE SHIP AND $10,000 BASED ON RESPONDENT'S
FAILURE TO PROVIDE HIM WITH MEDICAL ATTENTION, MAINTENANCE AND CURE,
AND WAGES AS REQUIRED BY LAW.  (FN1)  MARTIN'S NEGLIGENCE CLAIM INVOKED
A REMEDY CREATED BY CONGRESS IN SEC. 33 OF THE JONES ACT, 46 U.S.C.
SEC. 688, WHICH EXPLICITLY PROVIDES THAT A SEAMAN CAN HAVE A JURY TRIAL
AS OF RIGHT; BUT THE ACTIONS FOR UNSEAWORTHINESS AND FOR MAINTENANCE
AND CURE ARE TRADITIONAL ADMIRALTY REMEDIES WHICH IN THE ABSENCE OF A
STATUTE DO NOT ORDINARILY REQUIRE TRIAL BY JURY.  THE COMPLAINANT HERE
DID DEMAND A JURY, HOWEVER, FOR ALL THE ISSUES GROWING OUT OF THE
SINGLE ACCIDENT.  THE TRIAL JUDGE GRANTED A JURY TRIAL FOR THE JONES
ACT AND THE UNSEAWORTHINESS ISSUES BUT HELD THE QUESTION OF RECOVERY
UNDER MAINTENANCE AND CURE IN ABEYANCE TO TRY HIMSELF AFTER JURY TRIAL
OF THE OTHER TWO ISSUES.  THE JURY RETURNED A VERDICT FOR UNITED STATES
LINES ON THE NEGLIGENCE AND UNSEAWORTHINESS ISSUES; THE COURT THEN,
AFTER HEARING TESTIMONY IN ADDITION TO THAT PRESENTED TO THE JURY,
AWARDED MARTIN $224 FOR MAINTENANCE AND CURE.  SITTING EN BANC, THE
COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED, FOUR JUDGES STATING
THAT IT WOULD BE IMPROPER TO SUBMIT A MAINTENANCE AND CURE CLAIM TO THE
JURY, TWO BELIEVING IT TO BE PERMISSIBLE BUT NOT REQUIRED, AND THREE
MAINTAINING THAT A SEAMAN IS ENTITLED, AS OF RIGHT, TO A JURY TRIAL OF
A MAINTENANCE AND CURE CLAIM JOINED WITH A JONES ACT CLAIM.  306 F.2D
461.  THE LOWER COURTS ARE AT ODDS ON THIS ISSUE.  (FN2)  WE GRANTED
CERTIORARI TO DECIDE IT.  (FN3)  371 U.S. 932. 

FOR YEARS IT HAS BEEN A COMMON, ALTHOUGH NOT UNIFORM, (FN4) PRACTICE
OF DISTRICT COURTS TO GRANT JURY TRIALS TO PLAINTIFFS WHO JOIN IN ONE
COMPLAINT THEIR JONES ACT, UNSEAWORTHINESS, AND MAINTENANCE AND CURE
CLAIMS WHEN ALL THE CLAIMS, AS HERE, GROW OUT OF A SINGLE TRANSACTION
OR ACCIDENT.  (FN5)  THIS PRACTICE OF REQUIRING ISSUES ARISING OUT OF A
SINGLE ACCIDENT TO BE TRIED BY A SINGLE TRIBUNAL IS BY NO MEANS
SURPRISING.  ALTHOUGH REMEDIES FOR NEGLIGENCE, UNSEAWORTHINESS, AND
MAINTENANCE AND CURE HAVE DIFFERENT ORIGINS AND MAY ON OCCASION CALL
FOR APPLICATION OF SLIGHTLY DIFFERENT PRINCIPLES AND PROCEDURES, THEY
NEVERTHELESS, WHEN BASED ON ONE UNITARY SET OF CIRCUMSTANCES, SERVE THE
SAME PURPOSE OF INDEMNIFYING A SEAMAN FOR DAMAGES CAUSED BY INJURY,
DEPEND IN LARGE PART UPON THE SAME EVIDENCE, AND INVOLVE SOME IDENTICAL
ELEMENTS OF RECOVERY.  REQUIRING A SEAMAN TO SPLIT UP HIS LAWSUIT,
SUBMITTING PART OF IT TO A JURY AND PART TO A JUDGE, UNDULY COMPLICATES
AND CONFUSES A TRIAL, CREATES DIFFICULTIES IN APPLYING DOCTRINES OF RES
JUDICATA AND COLLATERAL ESTOPPEL, AND CAN EASILY RESULT IN TOO MUCH OR
TOO LITTLE RECOVERY.  (FN6)  THE PROBLEMS ARE PARTICULARLY ACUTE IN
DETERMINING THE AMOUNT OF DAMAGES.  FOR EXAMPLE, ALL LOST EARNINGS AND
MEDICAL EXPENSES ARE RECOVERABLE ON A NEGLIGENCE COUNT, BUT UNDER THE
JONES ACT THEY ARE SUBJECT TO REDUCTION BY THE JURY IF THE SEAMAN HAS
BEEN CONTRIBUTORILY NEGLIGENT.  THESE SAME ITEMS ARE RECOVERABLE IN
PART ON THE MAINTENANCE AND CURE COUNT, BUT THE DAMAGES ARE MEASURED BY
DIFFERENT STANDARDS (FN7) AND ARE NOT SUBJECT TO REDUCTION FOR ANY
CONTRIBUTORY NEGLIGENCE.  IT IS EXTREMELY DIFFICULT FOR A JUDGE IN
TRYING A MAINTENANCE AND CURE CLAIM TO ASCERTAIN, EVEN WITH THE USE OF
SPECIAL INTERROGATORIES, EXACTLY WHAT WENT INTO THE DAMAGES AWARDED BY
A JURY - HOW LOSS OF EARNING POWER WAS CALCULATED, HOW MUCH WAS ALLOWED
FOR MEDICAL EXPENSES AND PAIN AND SUFFERING, HOW MUCH WAS ALLOWED FOR
ACTUAL LOST WAGES, AND HOW MUCH, IF ANY, EACH OF THE RECOVERIES WAS
REDUCED BY CONTRIBUTORY NEGLIGENCE.  THIS RAISES NEEDLESS PROBLEMS OF
WHO HAS THE BURDEN OF PROVING EXACTLY WHAT THE JURY DID.  (FN8)  AND
EVEN IF THE JUDGE CAN FIND OUT WHAT ELEMENTS OF DAMAGE THE JURY'S
VERDICT ACTUALLY REPRESENTED, HE MUST STILL TRY TO SOLVE THE PUZZLING
PROBLEM OF THE BEARING THE JURY'S VERDICT SHOULD HAVE ON RECOVERY UNDER
THE DIFFERENT STANDARDS OF THE MAINTENANCE AND CURE CLAIM.  IN THE
ABSENCE OF SOME STATUTORY OR CONSTITUTIONAL OBSTACLE, AN END SHOULD BE
PUT TO SUCH AN UNFORTUNATE, OUTDATED, AND WASTEFUL MANNER OF TRYING
THESE CASES.  (FN9)  FORTUNATELY, THERE IS NO SUCH OBSTACLE. 

WHILE THIS COURT HAS HELD THAT THE SEVENTH AMENDMENT DOES NOT REQUIRE
JURY TRIALS IN ADMIRALTY CASES, (FN10) NEITHER THAT AMENDMENT NOR ANY
OTHER PROVISION OF THE CONSTITUTION FORBIDS THEM.  (FN11)  NOR DOES ANY
STATUTE OF CONGRESS OR RULE OR PROCEDURE, CIVIL OR ADMIRALTY, FORBID
JURY TRIALS IN MARITIME CASES.  ARTICLE III OF THE CONSTITUTION VESTED
IN THE FEDERAL COURTS JURISDICTION OVER ADMIRALTY AND MARITIME CASES,
AND, SINCE THAT TIME, THE CONGRESS HAS LARGELY LEFT TO THIS COURT THE
RESPONSIBILITY FOR FASHIONING THE CONTROLLING RULES OF ADMIRALTY LAW. 
THIS COURT HAS LONG RECOGNIZED ITS POWER AND RESPONSIBILITY IN THIS
AREA AND HAS EXERCISED THAT POWER WHERE NECESSARY TO DO SO.  (FN12)
WHERE, AS HERE, A PARTICULAR MODE OF TRIAL BEING USED BY MANY JUDGES IS
SO CUMBERSOME, CONFUSING, AND TIME CONSUMING THAT IT PLACES COMPLETELY
UNNECESSARY OBSTACLES IN THE PATHS OF LITIGANTS SEEKING JUSTICE IN OUR
COURTS, WE SHOULD NOT AND DO NOT HESITATE TO TAKE ACTION TO CORRECT THE
SITUATION.  ONLY ONE TRIER OF FACT SHOULD BE USED FOR THE TRIAL OF WHAT
IS ESSENTIALLY ONE LAWSUIT TO SETTLE ONE CLAIM SPLIT CONCEPTUALLY INTO
SEPARATE PARTS BECAUSE OF HISTORICAL DEVELOPMENTS.  AND SINCE CONGRESS
IN THE JONES ACT HAS DECLARED THAT THE NEGLIGENCE PART OF THE CLAIM
SHALL BE TRIED BY A JURY, WE WOULD NOT BE FREE, EVEN IF WE WISHED, TO
REQUIRE SUBMISSION OF ALL THE CLAIMS TO THE JUDGE ALONE.  THEREFORE,
THE JURY, A TIME-HONORED INSTITUTION IN OUR JURISPRUDENCE, IS THE ONLY
TRIBUNAL COMPETENT UNDER THE PRESENT CONGRESSIONAL ENACTMENTS TO TRY
ALL THE CLAIMS.  ACCORDINGLY, WE HOLD THAT A MAINTENANCE AND CURE CLAIM
JOINED WITH A JONES ACT CLAIM MUST BE SUBMITTED TO THE JURY WHEN BOTH
ARISE OUT OF ONE SET OF FACTS.  THE SEAMAN IN THIS CASE WAS THEREFORE
ENTITLED TO A JURY TRIAL AS OF RIGHT ON HIS MAINTENANCE AND CURE
CLAIM. 

JUDGMENT AGAINST THE SEAMAN ON THE JONES ACT CLAIM WAS AFFIRMED BY
THE COURT OF APPEALS, AND WE DECLINED TO REVIEW IT ON CERTIORARI.  THE
SHIPOWNER POINTS OUT THAT ON REMAND THE MAINTENANCE AND CURE CLAIM
WOULD NO LONGER BE JOINED WITH A JONES ACT CLAIM AND THEREFORE, HE
ARGUES, COULD BE TRIED BY A JUDGE WITHOUT A JURY.  WE CANNOT AGREE. 
OUR HOLDING IS THAT IT WAS ERROR TO DEPRIVE THE SEAMAN OF THE JURY
TRIAL HE DEMANDED, AND HE IS ENTITLED TO RELIEF FROM THIS ERROR BY
HAVING THE KIND OF TRIAL HE WOULD HAVE HAD IN THE ABSENCE OF ERROR. 
REVERSED. 

FN1  MARTIN DIED WHILE HIS APPEAL WAS PENDING AND A PUBLIC
ADMINISTRATOR WAS SUBSTITUTED FOR HIM. 

FN2  SEE NOTES 4 AND 5, INFRA. 

FN3  BECAUSE OF OUR LIMITED GRANT OF CERTIORARI, WE DO NOT CONSIDER
PETITIONER'S ARGUMENT THAT THE COMPLAINT AND TRIAL RECORD SHOW
DIVERSITY OF CITIZENSHIP JURISDICTION AND THAT THEREFORE PLAINTIFF WAS
ENTITLED TO A JURY TRIAL.  SEE ATLANTIC & GULF STEVEDORES, INC., V.
ELLERMAN LINES, 369 U.S. 355, 360 (1962).  NOR DO WE FIND IT NECESSARY
TO REACH PETITIONER'S ARGUMENT THAT WE SHOULD RECONSIDER THAT PART OF
THE HOLDING OF ROMERO V. INTERNATIONAL TERMINAL OPERATING CO., 358 U.S.
354 (1959), WHICH CONCLUDED THAT CLAIMS BASED UPON GENERAL MARITIME LAW
CANNOT BE BROUGHT IN FEDERAL COURTS UNDER THE FEDERAL QUESTION
JURISDICTION OF 28 U.S.C. SEC. 1331. 

FN4  SEE, E.G., JESONIS V. OLIVER J. OLSON & CO., 238 F.2D 307 (C.A.
9TH CIR. 1956); STENDZE V. THE BOAT NEPTUNE, INC., 135 F. SUPP. 801
(D.C. MASS. 1955); CF. JORDINE V. WALLING, 185 F.2D 662 (C.A. 3D CIR.
1950). 

FN5  SEE, E.G., NOLAN V. GENERAL SEAFOODS CORP., 112 F.2D 515 (C.A.
1ST CIR. 1940); LYKES BROS. S.S. CO. V. GRUBAUGH, 128 F.2D 387,
MODIFIED ON REHEARING, 130 F.2D 25 (C.A. 5TH CIR. 1942); BAY STATE
DREDGING AND CONTRACTING CO. V. PORTER, 153 F.2D 827 (C.A. 1ST CIR.
1946); GONZALES V. UNITED FRUIT CO., 193 F.2D 479 (C.A.2D CIR. 1951);
ROSENQUIST V. ISTHMIAN S.S. CO., 205 F.2D 486 (C.A. 2D CIR. 1953);
MITCHELL V. TRAWLER RACER, INC., 265 F.2D 426 (C.A. 1ST CIR. 1959),
REV'D ON OTHER GROUNDS, 362 U.S. 539 (1960); MCDONALD V. CAPE COD
TRAWLING CORP., 71 F. SUPP. 888, 891 (D.C. MASS. 1947); GILMORE AND
BLACK, THE LAW OF ADMIRALTY (1957), 262. 

FN6  FOR AN ILLUMINATING DISCUSSION OF THE PRACTICAL PROBLEMS, SEE
JENKINS V. RODERICK, 156 F. SUPP. 299, 304-306 (D.C. MASS.
1957)(WYZANSKI, J.). 

THIS COURT HAS HELD THAT RECOVERY OF MAINTENANCE AND CURE DOES NOT
BAR A SUBSEQUENT ACTION UNDER THE JONES ACT, PACIFIC S.S. CO. V.
PETERSON, 278 U.S. 130 (1928), BUT OF COURSE, WHERE SUCH CLOSELY
RELATED CLAIMS ARE SUBMITTED TO DIFFERENT TRIERS OF FACT, QUESTIONS OF
RES JUDICATA AND COLLATERAL ESTOPPEL NECESSARILY ARISE, PARTICULARLY IN
CONNECTION WITH EFFORTS TO AVOID DUPLICATION OF DAMAGES. 

FN7  MAINTENANCE AND CURE ALLOWS RECOVERY FOR WAGES ONLY TO THE END
OF THE VOYAGE ON WHICH A SEAMAN IS INJURED OR BECOMES ILL.  THE
OSCEOLA, 189 U.S. 158, 175 (1903).  MEDICAL EXPENSES NEED NOT BE
PROVIDED BEYOND THE POINT AT WHICH A SEAMAN BECOMES INCURABLE.  FARRELL
V. UNITED STATES, 336 U.S. 511 (1949). 

FN8  SEE, E.G., BARTHOLOMEW V. UNIVERSE TANKSHIPS, INC., 279 F.2D
911, 915-916 (C.A.2D CIR. 1960); STENDZE V. THE BOAT NEPTUNE, INC., 135
F. SUPP. 801 (D.C. MASS. 1955).  FOR ANOTHER EXAMPLE OF SOME OF THE
DIFFICULTIES INVOLVED IN SEPARATE TRIALS, COMPARE CLAUDIO V. SINCLAIR
REF. CO., 160 F. SUPP. 3 (D.C.E.D.N.Y. 1958), WITH LAZAROWITZ V.
AMERICAN EXPORT LINES, 87 F. SUPP. 197 (D.C.E.D. PA. 1949). 

FN9  SEE GENERALLY CURRIE, THE SILVER OAR AND ALL THAT:  A STUDY OF
THE ROMERO CASE, 27 U. OF CHI.  L. REV. 1 (1959); KURLAND, THE ROMERO
CASE AND SOME PROBLEMS OF FEDERAL JURISDICTION, 73 HARV. L. REV. 817,
850 (1960); NOTE, 73 HARV. L. REV. 138 (1959). 

FN10  WARING V. CLARKE, 5 HOW.  441, 460 (1847). 

FN11  THE GENESEE CHIEF V. FITZHUGH, 12 HOW.  443, 459-460 (DEC.
TERM, 1851)(UPHOLDING CONSTITUTIONALITY OF JURY TRIAL PROVISION IN
GREAT LAKES ACT). 

FN12  SEE, E.G., THE JOHN G. STEVENS, 170 U.S. 113 (1898); SWIFT &
CO. PACKERS V. COMPANIA COLOMBIANA DEL CARIBE, S.A., 339 U.S. 684, 690,
691 (1950); WARREN V. UNITED STATES, 340 U.S. 523, 527 (1951); WILBURN
BOAT CO. V. FIREMAN'S FUND INS. CO., 348 U.S. 310, 314 (1955); ROMERO
V. INTERNATIONAL TERMINAL OPERATING CO., 358 U.S. 354, 360-361 (1959);
THE TUNGUS V. SKOVGAARD, 358 U.S. 588, 597, 611 (1959)(OPINION OF
BRENNAN, J., CONCURRING IN PART AND DISSENTING IN PART); MITCHELL V.
TRAWLER RACER, INC., 362 U.S. 539 (1960). 

MR. JUSTICE HARLAN, DISSENTING. 

I AM WHOLLY IN SYMPATHY WITH THE RESULT REACHED BY THE COURT.  IT IS,
I BELIEVE, A RESULT THAT IS CONSISTENT WITH SOUND JUDICIAL
ADMINISTRATION AND THAT WILL GREATLY SIMPLIFY THE CONDUCT OF SUITS IN
WHICH A CLAIM FOR MAINTENANCE AND CURE IS JOINED WITH A JONES ACT CLAIM
ARISING OUT OF THE SAME SET OF FACTS. 

BUT THE RULE THAT THE COURT ANNOUNCES IS IN MY VIEW ENTIRELY
PROCEDURAL IN CHARACTER, AND THE MANNER IN WHICH SUCH RULES MUST BE
PROMULGATED HAS BEEN SPECIFIED BY CONGRESS IN 28 U.S.C. SEC. 2073. 
THIS STATUTE PROVIDES THAT RULES OF PROCEDURE IN ADMIRALTY: 

"SHALL NOT TAKE EFFECT UNTIL THEY HAVE BEEN REPORTED TO CONGRESS BY
THE CHIEF JUSTICE AT OR AFTER THE BEGINNING OF A REGULAR SESSION
THEREOF  ...  AND UNTIL THE EXPIRATION OF NINETY DAYS AFTER THEY HAVE
BEEN THUS REPORTED." 

BELIEVING THAT WE ARE GOVERNED BY THIS PROVISION, AND THAT THE METHOD
THERE PRESCRIBED FOR THE DECLARATION OF PROCEDURAL RULES, WHICH ARE TO
BE APPLICABLE IN ALL FEDERAL DISTRICT COURTS, IS EXCLUSIVE, I AM UNABLE
TO SUBSCRIBE TO THE OPINION OF THE COURT.*  I THINK THE APPROPRIATE WAY
TO ACHIEVE WHAT IN THIS INSTANCE IS OBVIOUSLY A DESIRABLE PROCEDURAL
REFORM IS TO DEAL WITH THE MATTER THROUGH THE JUDICIAL CONFERENCE OF
THE UNITED STATES.  CF. MINER V. ATLASS, 363 U.S. 641.  MEANWHILE,
SUBSTANTIALLY FOR THE REASONS GIVEN IN JUDGE FRIENDLY'S OPINION, I
CONSIDER THAT THE JUDGMENT BELOW MUST BE AFFIRMED. 

*THE COURSE TAKEN BY THE COURT IS NOT, IN MY VIEW, SUPPORTED BY ANY
OF THE CASES CITED IN NOTE 12 OF THE COURT'S OPINION.  NONE OF THEM
INVOLVED A PROCEDURAL RULE. 
..END :





KER V. CALIFORNIA 374 U.S. 23 


NO. 53.  ARGUED DECEMBER 11, 1962 - DECIDED JUNE 10, 1963 - 195 CAL.
APP. 2D 246, 15 CAL. RPTR.  767, AFFIRMED. 


1.  THE PROHIBITION OF THE FOURTH AMENDMENT AGAINST UNREASONABLE
SEARCHES AND SEIZURES, WHICH FORBIDS THE FEDERAL GOVERNMENT TO CONVICT
A MAN OF CRIME BY USING EVIDENCE OBTAINED FROM HIM BY UNREASONABLE
SEARCH AND SEIZURE, IS ENFORCEABLE AGAINST THE STATES THROUGH THE
FOURTEENTH AMENDMENT BY THE SAME SANCTION OF EXCLUSION AND BY THE
APPLICATION OF THE SAME CONSTITUTIONAL STANDARD PROHIBITING
"UNREASONABLE SEARCHES AND SEIZURES," AS DEFINED IN THE FOURTH
AMENDMENT.  MAPP.  V. OHIO, 367 U.S. 643.  PP. 30-34. 

(A)  THIS COURT'S LONG-ESTABLISHED RECOGNITION THAT STANDARDS OF
REASONABLENESS UNDER THE FOURTH AMENDMENT ARE NOT SUSCEPTIBLE OF
PROCRUSTEAN APPLICATION IS CARRIED FORWARD WHEN THAT AMENDMENT'S
PROSCRIPTIONS ARE ENFORCED AGAINST THE STATES THROUGH THE FOURTEENTH
AMENDMENT.  P. 33. 

(B)  THE REASONABLENESS OF A SEARCH IS, IN THE FIRST INSTANCE, A
SUBSTANTIVE DETERMINATION TO BE MADE BY THE TRIAL COURT FROM THE FACTS
AND CIRCUMSTANCES OF THE CASE AND IN THE LIGHT OF THE "FUNDAMENTAL
CRITERIA" LAID DOWN BY THE FOURTH AMENDMENT AND IN THE OPINIONS OF THIS
COURT APPLYING THAT AMENDMENT, AS DISTINGUISHED FROM THE EXERCISE OF
ITS SUPERVISORY POWERS OVER FEDERAL COURTS; BUT FINDINGS OF
REASONABLENESS BY A TRIAL COURT ARE RESPECTED ONLY INSOFAR AS THEY ARE
CONSISTENT WITH FEDERAL CONSTITUTIONAL GUARANTEES.  P. 33. 

(C)  THE STATES ARE NOT PRECLUDED FROM DEVELOPING WORKING RULES
GOVERNING ARRESTS, SEARCHES AND SEIZURES TO MEET "THE PRACTICAL DEMANDS
OF EFFECTIVE CRIMINAL INVESTIGATION AND LAW ENFORCEMENT," PROVIDED THAT
THOSE RULES DO NOT VIOLATE THE CONSTITUTIONAL PROSCRIPTION OF
UNREASONABLE SEARCHES AND SEIZURES AND THE CONCOMITANT COMMAND THAT
EVIDENCE SO SEIZED IS INADMISSIBLE AGAINST ONE WHO HAS STANDING TO
COMPLAIN.  P. 34. 

2.  HAVING REASON TO BELIEVE THAT ONE OF THE PETITIONERS WAS SELLING
MARIJUANA AND HAD JUST PURCHASED SOME FROM A PERSON WHO WAS KNOWN TO BE
A DEALER IN MARIJUANA, CALIFORNIA POLICE OFFICERS, WITHOUT A SEARCH
WARRANT, USED A PASSKEY TO ENTER THE APARTMENT OCCUPIED BY PETITIONERS,
HUSBAND AND WIFE, ARRESTED THEM ON SUSPICION OF VIOLATING THE STATE
NARCOTIC LAW, SEARCHED THEIR APARTMENT, AND FOUND THREE PACKAGES OF
MARIJUANA, WHICH THEY SEIZED.  AT PETITIONERS' TRIAL, THESE PACKAGES OF
MARIJUANA WERE ADMITTED IN EVIDENCE OVER PETITIONERS' OBJECTION, AND
THEY WERE CONVICTED.  IN AFFIRMING THE CONVICTIONS, THE CALIFORNIA
DISTRICT COURT OF APPEAL FOUND THAT THERE WAS PROBABLE CAUSE FOR THE
ARRESTS; THAT THE ENTRY INTO THE APARTMENT WAS FOR THE PURPOSE OF
ARREST AND WAS NOT UNLAWFUL; AND THAT THE SEARCH, BEING INCIDENT TO THE
ARRESTS, WAS LIKEWISE LAWFUL AND ITS FRUITS ADMISSIBLE IN EVIDENCE
AGAINST PETITIONERS.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 34-44. 

KER ET UX. V. CALIFORNIA. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT WITH REFERENCE
TO THE STANDARD BY WHICH STATE SEARCHES AND SEIZURES MUST BE EVALUATED
(PART I), TOGETHER WITH AN OPINION APPLYING THAT STANDARD, IN WHICH MR.
JUSTICE BLACK, MR. JUSTICE STEWART AND MR. JUSTICE WHITE JOIN (PARTS II
V), AND ANNOUNCED THE JUDGMENT OF THE COURT. 

THIS CASE RAISES SEARCH AND SEIZURE QUESTIONS UNDER THE RULE OF MAPP
V. OHIO, 367 U.S. 643 (1961).  PETITIONERS, HUSBAND AND WIFE, WERE
CONVICTED OF POSSESSION OF MARIJUANA IN VIOLATION OF SEC. 11530 OF THE
CALIFORNIA HEALTH AND SAFETY CODE.  THE CALIFORNIA DISTRICT COURT OF
APPEAL AFFIRMED, 195 CAL. APP. 2D 246, 15 CAL. RPTR.  767, DESPITE THE
CONTENTION OF PETITIONERS THAT THEIR ARRESTS IN THEIR APARTMENT WITHOUT
WARRANTS LACKED PROBABLE CAUSE (FN1) AND THE EVIDENCE SEIZED INCIDENT
THERETO AND INTRODUCED AT THEIR TRIAL WAS THEREFORE INADMISSIBLE.  THE
CALIFORNIA SUPREME COURT DENIED WITHOUT OPINION A PETITION FOR
HEARING.  THIS BEING THE FIRST CASE ARRIVING HERE SINCE OUR OPINION IN
MAPP WHICH WOULD AFFORD SUITABLE OPPORTUNITY FOR FURTHER EXPLICATION OF
THAT HOLDING IN THE LIGHT OF INTERVENING EXPERIENCE, WE GRANTED
CERTIORARI.  368 U.S. 974.  WE AFFIRM THE JUDGMENT BEFORE US. 

THE STATE COURTS' CONVICTION AND AFFIRMANCE ARE BASED ON THESE
EVENTS, WHICH CULMINATED IN THE PETITIONERS' ARRESTS.  SERGEANT COOK OF
THE LOS ANGELES COUNTY SHERIFF'S OFFICE, IN NEGOTIATING THE PURCHASE OF
MARIJUANA FROM ONE TERRHAGEN, ACCOMPANIED HIM TO A BOWLING ALLEY ABOUT
7 P.M. ON JULY 26, 1960, WHERE THEY WERE TO MEET TERRHAGEN'S
"CONNECTION."  TERRHAGEN WENT INSIDE AND RETURNED SHORTLY, POINTING TO
A 1946 DESOTO AS HIS "CONNECTION'S" AUTOMOBILE AND EXPLAINING THAT THEY
WERE TO MEET HIM "UP BY THE OIL FIELDS" NEAR FAIRFAX AND SLAUSON
AVENUES IN LOS ANGELES.  AS THEY NEARED THAT LOCATION, TERRHAGEN AGAIN
POINTED OUT THE DESOTO TRAVELING AHEAD OF THEM, STATING THAT THE
"CONNECTION" KEPT HIS SUPPLY OF NARCOTICS "SOMEWHERE UP IN THE HILLS." 
THEY PARKED NEAR SOME VACANT FIELDS IN THE VICINITY OF THE INTERSECTION
OF FAIRFAX AND SLAUSON, AND, SHORTLY THEREAFTER, THE DESOTO REAPPEARED
AND PULLED UP BESIDE THEM.  THE DEPUTY THEN RECOGNIZED THE DRIVER AS
ONE ROLAND MURPHY, WHOSE "MUG" PHOTOGRAPH HE HAD SEEN AND WHOM HE KNEW
FROM OTHER NARCOTICS OFFICERS TO BE A LARGE-SCALE SELLER OF MARIJUANA
CURRENTLY OUT ON BAIL IN CONNECTION WITH NARCOTICS CHARGES. 

TERRHAGEN ENTERED THE DESOTO AND DROVE OFF TOWARD THE OIL FIELDS WITH
MURPHY, WHILE THE SERGEANT WAITED.  THEY RETURNED SHORTLY, TERRHAGEN
LEFT MURPHY'S CAR CARRYING A PACKAGE OF MARIJUANA AND ENTERED HIS OWN
VEHICLE, AND THEY DROVE TO TERRHAGEN'S RESIDENCE.  THERE TERRHAGEN CUT
ONE POUND OF MARIJUANA AND GAVE IT TO SERGEANT COOK, WHO HAD PREVIOUSLY
PAID HIM.  THE SERGEANT LATER REPORTED THIS OCCURRENCE TO LOS ANGELES
COUNTY OFFICERS BERMAN AND WARTHEN, THE LATTER OF WHOM HAD OBSERVED THE
OCCURRENCES AS WELL. 

ON THE FOLLOWING DAY, JULY 27, MURPHY WAS PLACED UNDER SURVEILLANCE. 
OFFICER WARTHEN, WHO HAD OBSERVED THE TERRHAGEN-MURPHY EPISODE THE
PREVIOUS NIGHT, AND OFFICER MARKMAN WERE ASSIGNED THIS DUTY.  AT ABOUT
7 P.M. THAT EVENING THEY FOLLOWED MURPHY'S DESOTO AS HE DROVE TO THE
SAME BOWLING ALLEY IN WHICH HE HAD MET TERRHAGEN ON THE PREVIOUS
EVENING.  MURPHY WENT INSIDE, EMERGED IN ABOUT 10 MINUTES AND DROVE TO
A HOUSE WHERE HE MADE A BRIEF VISIT.  THE OFFICERS CONTINUED TO FOLLOW
HIM BUT, UPON LOSING SIGHT OF HIS VEHICLE, PROCEEDED TO THE VICINITY OF
FAIRFAX AND SLAUSON AVENUES WHERE THEY PARKED.  THERE, IMMEDIATELY
ACROSS THE STREET FROM THE LOCATION AT WHICH TERRHAGEN AND SERGEANT
COOK HAD MET MURPHY ON THE PREVIOUS EVENING, THE OFFICERS OBSERVED A
PARKED AUTOMOBILE WHOSE LONE OCCUPANT THEY LATER DETERMINED TO BE THE
PETITIONER GEORGE DOUGLAS KER. 

THE OFFICERS THEN SAW MURPHY DRIVE PAST THEM.  THEY FOLLOWED HIM BUT
LOST SIGHT OF HIM WHEN HE EXTINGUISHED HIS LIGHTS AND ENTERED THE OIL
FIELDS.  THE OFFICERS RETURNED TO THEIR VANTAGE POINT AND, SHORTLY
THEREAFTER, OBSERVED MURPHY RETURN AND PARK BEHIND KER.  FROM THEIR
LOCATION APPROXIMATELY 1,000 FEET FROM THE TWO VEHICLES, THEY WATCHED
THROUGH FIELD GLASSES.  MURPHY WAS SEEN LEAVING HIS DESOTO AND WALKING
UP TO THE DRIVER'S SIDE OF KER'S CAR, WHERE HE "APPEARED TO HAVE
CONVERSATION WITH HIM."  IT WAS SHORTLY BEFORE 9 P.M. AND THE DISTANCE
IN THE TWILIGHT WAS TOO GREAT FOR THE OFFICERS TO SEE ANYTHING PASS
BETWEEN MURPHY AND KER OR WHETHER THE FORMER HAD ANYTHING IN HIS HANDS
AS HE APPROACHED. 

WHILE MURPHY AND KER WERE TALKING, THE OFFICERS HAD DRIVEN PAST THEM
IN ORDER TO SEE THEIR FACES CLOSELY AND IN ORDER TO TAKE THE LICENSE
NUMBER FROM KER'S VEHICLE.  SOON THEREAFTER KER DROVE AWAY AND THE
OFFICERS FOLLOWED HIM BUT LOST HIM WHEN HE MADE A U-TURN IN THE MIDDLE
OF THE BLOCK AND DROVE IN THE OPPOSITE DIRECTION.  NOW, HAVING LOST
CONTACT WITH KER, THEY CHECKED THE REGISTRATION WITH THE DEPARTMENT OF
MOTOR VEHICLES AND ASCERTAINED THAT THE AUTOMOBILE WAS REGISTERED TO
DOUGLAS KER AT 4801 SLAUSON.  THEY THEN COMMUNICATED THIS INFORMATION
TO OFFICER BERMAN, WITHIN 15 TO 30 MINUTES AFTER OBSERVING THE MEETING
BETWEEN KER AND MURPHY.  THOUGH OFFICERS WARTHEN AND MARKMAN HAD NO
PREVIOUS KNOWLEDGE OF KER, BERMAN HAD RECEIVED INFORMATION AT VARIOUS
TIMES BEGINNING IN NOVEMBER OF 1959 THAT KER WAS SELLING MARIJUANA FROM
HIS APARTMENT AND THAT "HE WAS POSSIBLY SECURING THIS MARIJUANA FROM
RONNIE MURPHY WHO IS THE ALIAS OF ROLAND MURPHY."  IN EARLY 1960
OFFICER BERMAN HAD RECEIVED A "MUG" PHOTOGRAPH OF KER FROM THE
INGLEWOOD POLICE DEPARTMENT.  HE FURTHER TESTIFIED THAT BETWEEN MAY AND
JULY 27, 1960, HE HAD RECEIVED INFORMATION AS TO KER FROM ONE ROBERT
BLACK, WHO HAD PREVIOUSLY GIVEN INFORMATION LEADING TO AT LEAST THREE
ARRESTS AND WHOSE INFORMATION WAS BELIEVED BY BERMAN TO BE RELIABLE. 
ACCORDING TO OFFICER BERMAN, BLACK HAD TOLD HIM ON FOUR OR FIVE
OCCASIONS AFTER MAY 1960 THAT KER AND OTHERS, INCLUDING HIMSELF, HAD
PURCHASED MARIJUANA FROM MURPHY.  (FN2) 

ARMED WITH THE KNOWLEDGE OF THE MEETING BETWEEN KER AND MURPHY AND
WITH BERMAN'S INFORMATION AS TO KER'S DEALINGS WITH MURPHY, THE THREE
OFFICERS AND A FOURTH, OFFICER LOVE, PROCEEDED IMMEDIATELY TO THE
ADDRESS WHICH THEY HAD OBTAINED THROUGH KER'S LICENSE NUMBER.  THEY
FOUND THE AUTOMOBILE WHICH THEY HAD BEEN FOLLOWING - AND WHICH THEY HAD
LEARNED WAS KER'S - IN THE PARKING LOT OF THE MULTIPLE-APARTMENT
BUILDING AND ALSO ASCERTAINED THAT THERE WAS SOMEONE IN THE KERS'
APARTMENT.  THEY THEN WENT TO THE OFFICE OF THE BUILDING MANAGER AND
OBTAINED FROM HIM A PASSKEY TO THE APARTMENT.  OFFICER MARKMAN WAS
STATIONED OUTSIDE THE WINDOW TO INTERCEPT ANY EVIDENCE WHICH MIGHT BE
EJECTED, AND THE OTHER THREE OFFICERS ENTERED THE APARTMENT.  OFFICER
BERMAN UNLOCKED AND OPENED THE DOOR, PROCEEDING QUIETLY, HE TESTIFIED,
IN ORDER TO PREVENT THE DESTRUCTION OF EVIDENCE, (FN3) AND FOUND
PETITIONER GEORGE KER SITTING IN THE LIVING ROOM.  JUST AS HE
IDENTIFIED HIMSELF, STATING THAT "WE ARE SHERIFF'S NARCOTICS OFFICERS,
CONDUCTING A NARCOTICS INVESTIGATION," PETITIONER DIANE KER EMERGED
FROM THE KITCHEN.  BERMAN TESTIFIED THAT HE REPEATED HIS IDENTIFICATION
TO HER AND IMMEDIATELY WALKED TO THE KITCHEN.  WITHOUT ENTERING, HE
OBSERVED THROUGH THE OPEN DOORWAY A SMALL SCALE ATOP THE KITCHEN SINK,
UPON WHICH LAY A "BRICK-LIKE - BRICK-SHAPED PACKAGE CONTAINING THE
GREEN LEAFY SUBSTANCE" WHICH HE RECOGNIZED AS MARIJUANA.  HE BECKONED
THE PETITIONERS INTO THE KITCHEN WHERE, FOLLOWING THEIR DENIAL OF
KNOWLEDGE OF THE CONTENTS OF THE TWO-AND-TWO-TENTHS-POUND PACKAGE AND
FAILURE TO ANSWER A QUESTION AS TO ITS OWNERSHIP, HE PLACED THEM UNDER
ARREST FOR SUSPICION OF VIOLATING THE STATE NARCOTIC LAW.  OFFICER
MARKMAN TESTIFIED THAT HE ENTERED THE APARTMENT APPROXIMATELY "A
MINUTE, MINUTE AND A HALF" AFTER THE OTHER OFFICERS, AT WHICH TIME
OFFICER BERMAN WAS PLACING THE PETITIONERS UNDER ARREST.  AS TO THIS
SEQUENCE OF EVENTS, PETITIONER GEORGE KER TESTIFIED THAT HIS ARREST
TOOK PLACE IMMEDIATELY UPON THE OFFICERS' ENTRY AND BEFORE THEY SAW THE
BRICK OF MARIJUANA IN THE KITCHEN. 

SUBSEQUENT TO THE ARREST AND THE PETITIONERS' DENIAL OF POSSESSION OF
ANY OTHER NARCOTICS, THE OFFICERS, PROCEEDING WITHOUT SEARCH WARRANTS,
FOUND A HALF-OUNCE PACKAGE OF MARIJUANA IN THE KITCHEN CUPBOARD AND
ANOTHER ATOP THE BEDROOM DRESSER.  PETITIONERS WERE ASKED IF THEY HAD
ANY AUTOMOBILE OTHER THAN THE ONE OBSERVED BY THE OFFICERS, AND GEORGE
KER REPLIED IN THE NEGATIVE, WHILE DIANE REMAINED SILENT.  ON THE NEXT
DAY, HAVING LEARNED THAT AN AUTOMOBILE WAS REGISTERED IN THE NAME OF
DIANE KER, OFFICER WARTHEN SEARCHED THIS CAR WITHOUT A WARRANT, FINDING
MARIJUANA AND MARIJUANA SEEDS IN THE GLOVE COMPARTMENT AND UNDER THE
REAR SEAT.  THE MARIJUANA FOUND ON THE KITCHEN SCALE, THAT FOUND IN THE
KITCHEN CUPBOARD AND IN THE BEDROOM, AND THAT FOUND IN DIANE KER'S
AUTOMOBILE (FN4) WERE ALL INTRODUCED INTO EVIDENCE AGAINST THE
PETITIONERS. 

THE CALIFORNIA DISTRICT COURT OF APPEAL IN AFFIRMING THE CONVICTIONS
FOUND THAT THERE WAS PROBABLE CAUSE FOR THE ARRESTS; THAT THE ENTRY
INTO THE APARTMENT WAS FOR THE PURPOSE OF ARREST AND WAS NOT UNLAWFUL;
AND THAT THE SEARCH BEING INCIDENT TO THE ARRESTS WAS LIKEWISE LAWFUL
AND ITS FRUITS ADMISSIBLE IN EVIDENCE AGAINST PETITIONERS.  THESE
CONCLUSIONS WERE ESSENTIAL TO THE AFFIRMANCE, SINCE THE CALIFORNIA
SUPREME COURT IN 1955 HAD HELD THAT EVIDENCE OBTAINED BY MEANS OF
UNLAWFUL SEARCHES AND SEIZURES WAS INADMISSIBLE IN CRIMINAL TRIALS. 
PEOPLE V. CAHAN, 44 CAL. 2D 434, 282 P.2D 905.  THE COURT CONCLUDED
THAT IN VIEW OF ITS FINDINGS AND THE IMPLIED FINDINGS OF THE TRIAL
COURT, THIS COURT'S INTERVENING DECISION IN MAPP V. OHIO, SUPRA, DID
"NOT JUSTIFY A CHANGE IN OUR ORIGINAL CONCLUSION."  195 CAL. APP. 2D,
AT 257, 15 CAL. RPTR., AT 773. 

                                          I. 

IN MAPP V. OHIO, AT 646-647, 657, WE FOLLOWED BOYD V. UNITED STATES,
116 U.S. 616, 630 (1886), WHICH HELD THAT THE FOURTH AMENDMENT, (FN5)
IMPLEMENTED BY THE SELF-INCRIMINATION CLAUSE OF THE FIFTH, (FN6)
FORBIDS THE FEDERAL GOVERNMENT TO CONVICT A MAN OF CRIME BY USING
TESTIMONY OR PAPERS OBTAINED FROM HIM BY UNREASONABLE SEARCHES AND
SEIZURES AS DEFINED IN THE FOURTH AMENDMENT.  WE SPECIFICALLY HELD IN
MAPP THAT THIS CONSTITUTIONAL PROHIBITION IS ENFORCEABLE AGAINST THE
STATES THROUGH THE FOURTEENTH AMENDMENT.  (FN7)  THIS MEANS, AS WE SAID
IN MAPP, THAT THE FOURTH AMENDMENT "IS ENFORCEABLE AGAINST THEM (THE
STATES) BY THE SAME SANCTION OF EXCLUSION AS IS USED AGAINST THE
FEDERAL GOVERNMENT," BY THE APPLICATION OF THE SAME CONSTITUTIONAL
STANDARD PROHIBITING "UNREASONABLE SEARCHES AND SEIZURES."  367 U.S.,
AT 655.  WE NOW FACE THE SPECIFIC QUESTION AS TO WHETHER MAPP REQUIRES
THE EXCLUSION OF EVIDENCE IN THIS CASE WHICH THE CALIFORNIA DISTRICT
COURT OF APPEAL HAS HELD TO BE LAWFULLY SEIZED.  IT IS PERHAPS IRONIC
THAT THE INITIAL TEST UNDER THE MAPP HOLDING COMES FROM CALIFORNIA,
WHOSE DECISION VOLUNTARILY TO ADOPT THE EXCLUSIONARY RULE IN 1955 HAS
BEEN COMMENDED BY US PREVIOUSLY.  SEE MAPP V. OHIO, SUPRA, AT 651-652;
ELKINS V. UNITED STATES, 364 U.S. 206, 220 (1960). 

PRELIMINARY TO OUR EXAMINATION OF THE SEARCH AND SEIZURES INVOLVED
HERE, IT MIGHT BE HELPFUL FOR US TO INDICATE WHAT WAS NOT DECIDED IN
MAPP.  FIRST, IT MUST BE RECOGNIZED THAT THE "PRINCIPLES GOVERNING THE
ADMISSIBILITY OF EVIDENCE IN FEDERAL CRIMINAL TRIALS HAVE NOT BEEN
RESTRICTED ...  TO THOSE DERIVED SOLELY FROM THE CONSTITUTION.  IN THE
EXERCISE OF ITS SUPERVISORY AUTHORITY OVER THE ADMINISTRATION OF
CRIMINAL JUSTICE IN THE FEDERAL COURTS  ...  THIS COURT HAS  ...
FORMULATED RULES OF EVIDENCE TO BE APPLIED IN FEDERAL CRIMINAL
PROSECUTIONS."  MCNABB V. UNITED STATES, 318 U.S. 332, 341 (1943); CF.
MILLER V. UNITED STATES, 357 U.S. 301 (1958); NARDONE V. UNITED STATES,
302 U.S. 379 (1937).  MAPP, HOWEVER, ESTABLISHED NO ASSUMPTION BY THIS
COURT OF SUPERVISORY AUTHORITY OVER STATE COURTS, CF. CLEARY V. BOLGER,
371 U.S. 392, 401 (1963), AND, CONSEQUENTLY, IT IMPLIED NO TOTAL
OBLITERATION OF STATE LAWS RELATING TO ARRESTS AND SEARCHES IN FAVOR OF
FEDERAL LAW.  MAPP SOUNDED NO DEATH KNELL FOR OUR FEDERALISM; RATHER,
IT ECHOED THE SENTIMENT OF ELKINS V. UNITED STATES, SUPRA, AT 221, THAT
"A HEALTHY FEDERALISM DEPENDS UPON THE AVOIDANCE OF NEEDLESS CONFLICT
BETWEEN STATE AND FEDERAL COURTS" BY ITSELF URGING THAT "FEDERAL-STATE
COOPERATION IN THE SOLUTION OF CRIME UNDER CONSTITUTIONAL STANDARDS
WILL BE PROMOTED, IF ONLY BY RECOGNITION OF THEIR NOW MUTUAL OBLIGATION
TO RESPECT THE SAME FUNDAMENTAL CRITERIA IN THEIR APPROACHES.  367
U.S., AT 658.  SECOND, MAPP DID NOT ATTEMPT THE IMPOSSIBLE TASK OF
LAYING DOWN A "FIXED FORMULA" FOR THE APPLICATION IN SPECIFIC CASES OF
THE CONSTITUTIONAL PROHIBITION AGAINST UNREASONABLE SEARCHES AND
SEIZURES; IT RECOGNIZED THAT WE WOULD BE "MET WITH 'RECURRING QUESTIONS
OF THE REASONABLENESS OF SEARCHES'" AND THAT, "AT ANY RATE,
'REASONABLENESS IS IN THE FIRST INSTANCE FOR THE TRIAL COURT  ...  TO
DETERMINE,'" ID., AT 653, THUS INDICATING THAT THE USUAL WEIGHT BE
GIVEN TO FINDINGS OF TRIAL COURTS.    MAPP, OF COURSE, DID NOT LEND
ITSELF TO A DETAILED EXPLICATION OF STANDARDS, SINCE THE SEARCH
INVOLVED THERE WAS CLEARLY UNREASONABLE AND BORE NO STAMP OF LEGALITY
EVEN FROM THE OHIO SUPREME COURT.  ID., AT 643-645.  THIS IS TRUE ALSO
OF ELKINS V. UNITED STATES, WHERE ALL OF THE COURTS ASSUMED THE
UNREASONABLENESS OF THE SEARCH IN QUESTION AND THIS COURT "INVOKED" ITS
"SUPERVISORY POWER OVER THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE
FEDERAL COURTS," 364 U.S., AT 216, IN DECLARING THAT THE EVIDENCE SO
SEIZED BY STATE OFFICERS WAS INADMISSIBLE IN A FEDERAL PROSECUTION. 
THE PROSECUTION BEING IN A FEDERAL COURT, THIS COURT OF COURSE
ANNOUNCED THAT "THE TEST IS ONE OF FEDERAL LAW, NEITHER ENLARGED BY
WHAT ONE STATE COURT MAY HAVE COUNTENANCED, NOR DIMINISHED BY WHAT
ANOTHER MAY HAVE COLORABLY SUPPRESSED."  ID., AT 224.  SIGNIFICANT IN
THE ELKINS HOLDING IS THE STATEMENT, APPOSITE HERE, THAT "IT CAN FAIRLY
BE SAID THAT IN APPLYING THE FOURTH AMENDMENT THIS COURT HAS SELDOM
SHOWN ITSELF UNAWARE OF THE PRACTICAL DEMANDS OF EFFECTIVE CRIMINAL
INVESTIGATION AND LAW ENFORCEMENT."  ID., AT 222. 

IMPLICIT IN THE FOURTH AMENDMENT'S PROTECTION FROM UNREASONABLE
SEARCHES AND SEIZURES IS ITS RECOGNITION OF INDIVIDUAL FREEDOM.  THAT
SAFEGUARD HAS BEEN DECLARED TO BE "AS OF THE VERY ESSENCE OF
CONSTITUTIONAL LIBERTY" THE GUARANTY OF WHICH "IS AS IMPORTANT AND AS
IMPERATIVE AS ARE THE GUARANTIES OF THE OTHER FUNDAMENTAL RIGHTS OF THE
INDIVIDUAL CITIZEN  ...  ."  GOULED V. UNITED STATES, 255 U.S. 298, 304
(1921); CF. POWELL V. ALABAMA, 287 U.S. 45, 65-68.  (1932).  WHILE THE
LANGUAGE OF THE AMENDMENT IS "GENERAL," IT "FORBIDS EVERY SEARCH THAT
IS UNREASONABLE; IT PROTECTS ALL, THOSE SUSPECTED OR KNOWN TO BE
OFFENDERS AS WELL AS THE INNOCENT, AND UNQUESTIONABLY EXTENDS TO THE
PREMISES WHERE THE SEARCH WAS MADE  ...  ."  GO-BART IMPORTING CO. V.
UNITED STATES, 282 U.S. 344, 357 (1931).  MR. JUSTICE BUTLER THERE
STATED FOR THE COURT THAT "THE AMENDMENT IS TO BE LIBERALLY CONSTRUED
AND ALL OWE THE DUTY OF VIGILANCE FOR ITS EFFECTIVE ENFORCEMENT LEST
THERE SHALL BE IMPAIRMENT OF THE RIGHTS FOR THE PROTECTION OF WHICH IT
WAS ADOPTED."  IBID.  HE ALSO RECOGNIZED THAT "THERE IS NO FORMULA FOR
THE DETERMINATION OF REASONABLENESS.  EACH CASE IS TO BE DECIDED ON ITS
OWN FACTS AND CIRCUMSTANCES."  IBID.; SEE UNITED STATES V. RABINOWITZ,
339 U.S. 56, 63 (1950); RIOS V. UNITED STATES, 364 U.S. 253, 255
(1960). 

THIS COURT'S LONG-ESTABLISHED RECOGNITION THAT STANDARDS OF
REASONABLENESS UNDER THE FOURTH AMENDMENT ARE NOT SUSCEPTIBLE OF
PROCRUSTEAN APPLICATION IS CARRIED FORWARD WHEN THAT AMENDMENT'S
PROSCRIPTIONS ARE ENFORCED AGAINST THE STATES THROUGH THE FOURTEENTH
AMENDMENT.  AND, ALTHOUGH THE STANDARD OF REASONABLENESS IS THE SAME
UNDER THE FOURTH AND FOURTEENTH AMENDMENTS, THE DEMANDS OF OUR FEDERAL
SYSTEM COMPEL US TO DISTINGUISH BETWEEN EVIDENCE HELD INADMISSIBLE
BECAUSE OF OUR SUPERVISORY POWERS OVER FEDERAL COURTS AND THAT HELD
INADMISSIBLE BECAUSE PROHIBITED BY THE UNITED STATES CONSTITUTION.  WE
REITERATE THAT THE REASONABLENESS OF A SEARCH IS IN THE FIRST INSTANCE
A SUBSTANTIVE DETERMINATION TO BE MADE BY THE TRIAL COURT FROM THE
FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LIGHT OF THE
"FUNDAMENTAL CRITERIA" LAID DOWN BY THE FOURTH AMENDMENT AND IN
OPINIONS OF THIS COURT APPLYING THAT AMENDMENT.  FINDINGS OF
REASONABLENESS, OF COURSE, ARE RESPECTED ONLY INSOFAR AS CONSISTENT
WITH FEDERAL CONSTITUTIONAL GUARANTEES.  AS WE HAVE STATED ABOVE AND IN
OTHER CASES INVOLVING FEDERAL CONSTITUTIONAL RIGHTS, FINDINGS OF STATE
COURTS ARE BY NO MEANS INSULATED AGAINST EXAMINATION HERE.  SEE, E.G.,
SPANO V. NEW YORK, 360 U.S. 315, 316 (1959); THOMAS V. ARIZONA, 356
U.S. 390, 393 (1958); PIERRE V. LOUISIANA, 306 U.S. 354, 358 (1939). 
WHILE THIS COURT DOES NOT SIT AS IN NISI PRIUS TO APPRAISE
CONTRADICTORY FACTUAL QUESTIONS, IT WILL, WHERE NECESSARY TO THE
DETERMINATION OF CONSTITUTIONAL RIGHTS, MAKE AN INDEPENDENT EXAMINATION
OF THE FACTS, THE FINDINGS, AND THE RECORD SO THAT IT CAN DETERMINE FOR
ITSELF WHETHER IN THE DECISION AS TO REASONABLENESS THE FUNDAMENTAL -
I.E., CONSTITUTIONAL - CRITERIA ESTABLISHED BY THIS COURT HAVE BEEN
RESPECTED.  THE STATES ARE NOT THEREBY PRECLUDED FROM DEVELOPING
WORKABLE RULES GOVERNING ARRESTS, SEARCHES AND SEIZURES TO MEET "THE
PRACTICAL DEMANDS OF EFFECTIVE CRIMINAL INVESTIGATION AND LAW
ENFORCEMENT" IN THE STATES, PROVIDED THAT THOSE RULES DO NOT VIOLATE
THE CONSTITUTIONAL PROSCRIPTION OF UNREASONABLE SEARCHES AND SEIZURES
AND THE CONCOMITANT COMMAND THAT EVIDENCE SO SEIZED IS INADMISSIBLE
AGAINST ONE WHO HAS STANDING TO COMPLAIN.  SEE JONES V. UNITED STATES,
362 U.S. 257 (1960).  SUCH A STANDARD IMPLIES NO DEROGATION OF
UNIFORMITY IN APPLYING FEDERAL CONSTITUTIONAL GUARANTEES BUT IS ONLY A
RECOGNITION THAT CONDITIONS AND CIRCUMSTANCES VARY JUST AS DO
INVESTIGATIVE AND ENFORCEMENT TECHNIQUES. 

APPLYING THIS FEDERAL CONSTITUTIONAL STANDARD WE PROCEED TO EXAMINE
THE ENTIRE RECORD INCLUDING THE FINDINGS OF CALIFORNIA'S COURTS TO
DETERMINE WHETHER THE EVIDENCE SEIZED FROM PETITIONERS WAS
CONSTITUTIONALLY ADMISSIBLE UNDER THE CIRCUMSTANCES OF THIS CASE. 

                                         II. 

THE EVIDENCE AT ISSUE, IN ORDER TO BE ADMISSIBLE, MUST BE THE PRODUCT
OF A SEARCH INCIDENT TO A LAWFUL ARREST, SINCE THE OFFICERS HAD NO
SEARCH WARRANT.  THE LAWFULNESS OF THE ARREST WITHOUT WARRANT, IN TURN,
MUST BE BASED UPON PROBABLE CAUSE, WHICH EXISTS "WHERE 'THE FACTS AND
CIRCUMSTANCES WITHIN THEIR (THE OFFICERS') KNOWLEDGE AND OF WHICH THEY
HAD REASONABLY TRUSTWORTHY INFORMATION ARE SUFFICIENT IN THEMSELVES TO
WARRANT A MAN OF REASONABLE CAUTION IN THE BELIEF THAT' AN OFFENSE HAS
BEEN OR IS BEING COMMITTED."  BRINEGAR V. UNITED STATES, 338 U.S. 160,
175-176 (1949), QUOTING FROM CARROLL V. UNITED STATES, 267 U.S. 132,
162 (1925); ACCORD, PEOPLE V. FISCHER, 49 CAL. 2D 442, 317 P.2D 967
(1957); BOMPENSIERO V. SUPERIOR COURT, 44 CAL. 2D 178, 281 P.2D 250
(1955).  THE INFORMATION WITHIN THE KNOWLEDGE OF THE OFFICERS AT THE
TIME THEY ARRIVED AT THE KERS' APARTMENT, AS CALIFORNIA'S COURTS
SPECIFICALLY FOUND, CLEARLY FURNISHED GROUNDS FOR A REASONABLE BELIEF
THAT PETITIONER GEORGE KER HAD COMMITTED AND WAS COMMITTING THE OFFENSE
OF POSSESSION OF MARIJUANA.  OFFICERS MARKMAN AND WARTHEN OBSERVED A
RENDEZVOUS BETWEEN MURPHY AND KER ON THE EVENING OF THE ARREST WHICH
WAS A VIRTUAL REENACTMENT OF THE PREVIOUS NIGHT'S ENCOUNTER BETWEEN
MURPHY, TERRHAGEN AND SERGEANT COOK, WHICH CONCLUDED IN THE SALE BY
MURPHY TO TERRHAGEN AND THE SERGEANT OF A PACKAGE OF MARIJUANA OF WHICH
THE LATTER HAD PAID TERRHAGEN FOR ONE POUND WHICH HE RECEIVED FROM
TERRHAGEN AFTER THE ENCOUNTER WITH MURPHY.  TO BE SURE, THE DISTANCE
AND LACK OF LIGHT PREVENTED THE OFFICERS FROM SEEING AND THEY DID NOT
SEE ANY SUBSTANCE PASS BETWEEN THE TWO MEN, BUT THE VIRTUAL IDENTITY OF
THE SURROUNDING CIRCUMSTANCES WARRANTED A STRONG SUSPICION THAT THE ONE
REMAINING ELEMENT - A SALE OF NARCOTICS - WAS A PART OF THIS ENCOUNTER
AS IT WAS THE PREVIOUS NIGHT.  BUT KER'S ARREST DOES NOT DEPEND UPON
THIS SINGLE EPISODE WITH MURPHY.  WHEN KER'S U-TURN THWARTED THE
OFFICER'S PURSUIT, THEY LEARNED HIS NAME AND ADDRESS FROM THE
DEPARTMENT OF MOTOR VEHICLES AND REPORTED THE OCCURRENCE TO OFFICER
BERMAN.  BERMAN, IN TURN, REVEALED INFORMATION FROM AN INFORMER WHOSE
RELIABILITY HAD BEEN TESTED PREVIOUSLY, AS WELL AS FROM OTHER SOURCES,
NOT ONLY THAT KER HAD BEEN SELLING MARIJUANA FROM HIS APARTMENT BUT
ALSO THAT HIS LIKELY SOURCE OF SUPPLY WAS MURPHY HIMSELF.  THAT THIS
INFORMATION WAS HEARSAY DOES NOT DESTROY ITS ROLE IN ESTABLISHING
PROBABLE CAUSE.  BRINEGAR V. UNITED STATES, SUPRA.  IN DRAPER V. UNITED
STATES, 358 U.S. 307 (1959), WE HELD THAT INFORMATION FROM A RELIABLE
INFORMER, CORROBORATED BY THE AGENTS' OBSERVATIONS AS TO THE ACCURACY
OF THE INFORMER'S DESCRIPTION OF THE ACCUSED AND OF HIS PRESENCE AT A
PARTICULAR PLACE, WAS SUFFICIENT TO ESTABLISH PROBABLE CAUSE FOR AN
ARREST WITHOUT WARRANT.  (FN8)  THE CORROBORATIVE ELEMENTS IN DRAPER
WERE INNOCUOUS IN THEMSELVES, BUT HERE BOTH THE INFORMER'S TIP AND THE
PERSONAL OBSERVATIONS CONNECTED KER WITH SPECIFIC ILLEGAL ACTIVITIES
INVOLVING THE SAME MAN, MURPHY, A KNOWN MARIJUANA DEALER.  TO SAY THAT
THIS COINCIDENCE OF INFORMATION WAS SUFFICIENT TO SUPPORT A REASONABLE
BELIEF OF THE OFFICERS THAT KER WAS ILLEGALLY IN POSSESSION OF
MARIJUANA IS TO INDULGE IN UNDERSTATEMENT. 

PROBABLE CAUSE FOR THE ARREST OF PETITIONER DIANE KER, WHILE NOT
PRESENT AT THE TIME THE OFFICERS ENTERED THE APARTMENT TO ARREST HER
HUSBAND, WAS NEVERTHELESS PRESENT AT THE TIME OF HER ARREST.  UPON
THEIR ENTRY AND ANNOUNCEMENT OF THEIR IDENTITY, THE OFFICERS WERE MET
NOT ONLY BY GEORGE KER BUT ALSO BY DIANE KER, WHO WAS EMERGING FROM THE
KITCHEN.  OFFICER BERMAN IMMEDIATELY WALKED TO THE DOORWAY FROM WHICH
SHE EMERGED AND, WITHOUT ENTERING, OBSERVED THE BRICK-SHAPED PACKAGE OF
MARIJUANA IN PLAIN VIEW.  EVEN ASSUMING THAT HER PRESENCE IN A SMALL
ROOM WITH THE CONTRABAND IN A PROMINENT POSITION ON THE KITCHEN SINK
WOULD NOT ALONE ESTABLISH A REASONABLE GROUND FOR THE OFFICERS' BELIEF
THAT SHE WAS IN JOINT POSSESSION WITH HER HUSBAND, THAT FACT WAS
ACCOMPANIED BY THE OFFICERS' INFORMATION THAT KER HAD BEEN USING HIS
APARTMENT AS A BASE OF OPERATIONS FOR HIS NARCOTICS ACTIVITIES. 
THEREFORE, WE CANNOT SAY THAT AT THE TIME OF HER ARREST THERE WERE NOT
SUFFICIENT GROUNDS FOR A REASONABLE BELIEF THAT DIANE KER, AS WELL AS
HER HUSBAND, WAS COMMITTING THE OFFENSE OF POSSESSION OF MARIJUANA IN
THE PRESENCE OF THE OFFICERS. 

                                        III. 

IT IS CONTENDED THAT THE LAWFULNESS OF THE PETITIONERS' ARRESTS, EVEN
IF THEY WERE BASED UPON PROBABLE CAUSE, WAS VITIATED BY THE METHOD OF
ENTRY.  THIS COURT, IN CASES UNDER THE FOURTH AMENDMENT, HAS LONG
RECOGNIZED THAT THE LAWFULNESS OF ARRESTS FOR FEDERAL OFFENSES IS TO BE
DETERMINED BY REFERENCE TO STATE LAW INSOFAR AS IT IS NOT VIOLATIVE OF
THE FEDERAL CONSTITUTION.  MILLER V. UNITED STATES, SUPRA; UNITED
STATES V. DI RE, 332 U.S. 581 (1948); JOHNSON V. UNITED STATES, 333
U.S. 10, 15, N. 5 (1948).  A FORTIORI, THE LAWFULNESS OF THESE ARRESTS
BY STATE OFFICERS FOR STATE OFFENSES IS TO BE DETERMINED BY CALIFORNIA
LAW.  CALIFORNIA PENAL CODE, SEC. 844, (FN9) PERMITS PEACE OFFICERS TO
BREAK INTO A DWELLING PLACE FOR THE PURPOSE OF ARREST AFTER DEMANDING
ADMITTANCE AND EXPLAINING THEIR PURPOSE.  ADMITTEDLY THE OFFICERS DID
NOT COMPLY WITH THE TERMS OF THIS STATUTE SINCE THEY ENTERED QUIETLY
AND WITHOUT ANNOUNCEMENT, IN ORDER TO PREVENT THE DESTRUCTION OF
CONTRABAND.  THE CALIFORNIA DISTRICT COURT OF APPEAL, HOWEVER, HELD
THAT THE CIRCUMSTANCES HERE CAME WITHIN A JUDICIAL EXCEPTION WHICH HAD
BEEN ENGRAFTED UPON THE STATUTE BY A SERIES OF DECISIONS, SEE, E.G.,
PEOPLE V. RUIZ, 146 CAL. APP. 2D 630, 304 P.2D 175 (1956); PEOPLE V.
MADDOX, 46 CAL. 2D 301, 294 P.2D 6, CERT. DENIED, 352 U.S. 858 (1956),
AND THAT THE NONCOMPLIANCE WAS THEREFORE LAWFUL. 

SINCE THE PETITIONERS' FEDERAL CONSTITUTIONAL PROTECTION FROM
UNREASONABLE SEARCHES AND SEIZURES BY POLICE OFFICERS IS HERE TO BE
DETERMINED BY WHETHER THE SEARCH WAS INCIDENT TO A LAWFUL ARREST, WE
ARE WARRANTED IN EXAMINING THAT ARREST TO DETERMINE WHETHER,
NOTWITHSTANDING ITS LEGALITY UNDER STATE LAW, THE METHOD OF ENTERING
THE HOME MAY OFFEND FEDERAL CONSTITUTIONAL STANDARDS OF REASONABLENESS
AND THEREFORE VITIATE THE LEGALITY OF AN ACCOMPANYING SEARCH.  WE FIND
NO SUCH OFFENSIVENESS ON THE FACTS HERE.  ASSUMING THAT THE OFFICERS'
ENTRY BY USE OF A KEY OBTAINED FROM THE MANAGER IS THE LEGAL EQUIVALENT
OF A "BREAKING," SEE KEININGHAM V. UNITED STATES, 109 U.S. APP. D.C.
272, 276, 287 F.2D 126, 130 (C.A.D.C. CIR. 1960), IT HAS BEEN
RECOGNIZED FROM THE EARLY COMMON LAW THAT SUCH BREAKING IS PERMISSIBLE
IN EXECUTING AN ARREST UNDER CERTAIN CIRCUMSTANCES.  SEE WILGUS, ARREST
WITHOUT A WARRANT, 22 MICH. L. REV.  541, 798, 800-806 (1924).  INDEED,
18 U.S.C. SEC. 3109, (FN10) DEALING WITH THE EXECUTION OF SEARCH
WARRANTS BY FEDERAL OFFICERS, AUTHORIZES BREAKING OF DOORS IN WORDS
VERY SIMILAR TO THOSE OF THE CALIFORNIA STATUTE, BOTH STATUTES
INCLUDING A REQUIREMENT OF NOTICE OF AUTHORITY AND PURPOSE.  IN MILLER
V. UNITED STATES, SUPRA, THIS COURT HELD UNLAWFUL AN ARREST, AND
THEREFORE ITS ACCOMPANYING SEARCH, ON THE GROUND THAT THE DISTRICT OF
COLUMBIA OFFICERS BEFORE ENTERING A DWELLING DID NOT FULLY SATISFY THE
REQUIREMENT OF DISCLOSING THEIR IDENTITY AND PURPOSE.  THE COURT STATED
THAT "THE LAWFULNESS OF THE ARREST WITHOUT WARRANT IS TO BE DETERMINED
BY REFERENCE TO STATE LAW  ...  .  BY LIKE REASONING THE VALIDITY OF
THE ARREST OF PETITIONER IS TO BE DETERMINED BY REFERENCE TO THE LAW OF
THE DISTRICT OF COLUMBIA."  357 U.S., AT 305-306.  THE PARTIES THERE
CONCEDED AND THE COURT ACCEPTED THAT THE CRITERIA FOR TESTING THE
ARREST UNDER DISTRICT OF COLUMBIA LAW WERE "SUBSTANTIALLY IDENTICAL" TO
THE REQUIREMENTS OF SEC. 3109.  ID., AT 306.  HERE, HOWEVER, THE
CRITERIA UNDER CALIFORNIA LAW CLEARLY INCLUDE AN EXCEPTION TO THE
NOTICE REQUIREMENT WHERE EXIGENT CIRCUMSTANCES ARE PRESENT.  MOREOVER,
INSOFAR AS VIOLATION OF A FEDERAL STATUTE REQUIRED THE EXCLUSION OF
EVIDENCE IN MILLER, THE CASE IS INAPPOSITE FOR STATE PROSECUTIONS,
WHERE ADMISSIBILITY IS GOVERNED BY CONSTITUTIONAL STANDARDS.  FINALLY,
THE BASIS OF THE JUDICIAL EXCEPTION TO THE CALIFORNIA STATUTE, AS
EXPRESSED BY JUSTICE TRAYNOR IN PEOPLE V. MADDOX, 46 CAL. 2D, AT 306,
294 P.2D, AT 9, EFFECTIVELY ANSWERS THE PETITIONERS' CONTENTION: 

"IT MUST BE BORNE IN MIND THAT THE PRIMARY PURPOSE OF THE
CONSTITUTIONAL GUARANTEES IS TO PREVENT UNREASONABLE INVASIONS OF THE
SECURITY OF THE PEOPLE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS,
AND WHEN AN OFFICER HAS REASONABLE CAUSE TO ENTER A DWELLING TO MAKE AN
ARREST AND AS AN INCIDENT TO THAT ARREST IS AUTHORIZED TO MAKE A
REASONABLE SEARCH, HIS ENTRY AND HIS SEARCH ARE NOT UNREASONABLE. 
SUSPECTS HAVE NO CONSTITUTIONAL RIGHT TO DESTROY OR DISPOSE OF
EVIDENCE, AND NO BASIC CONSTITUTIONAL GUARANTEES ARE VIOLATED BECAUSE
AN OFFICER SUCCEEDS IN GETTING TO A PLACE WHERE HE IS ENTITLED TO BE
MORE QUICKLY THAN HE WOULD, HAD HE COMPLIED WITH SECTION 844. 
MOREOVER, SINCE THE DEMAND AND EXPLANATION REQUIREMENTS OF SECTION 844
ARE A CODIFICATION OF THE COMMON LAW, THEY MAY REASONABLY BE
INTERPRETED AS LIMITED BY THE COMMON LAW RULES THAT COMPLIANCE IS NOT
REQUIRED IF THE OFFICER'S PERIL WOULD HAVE BEEN INCREASED OR THE ARREST
FRUSTRATED HAD HE DEMANDED ENTRANCE AND STATED HIS PURPOSE.  (READ V.
CASE, 4 CONN. 166, 170 (10 AM. DEC. 110); SEE REST., TORTS, SEC. 206,
COM. D.)  WITHOUT THE BENEFIT OF HINDSIGHT AND ORDINARILY ON THE SPUR
OF THE MOMENT, THE OFFICER MUST DECIDE THESE QUESTIONS IN THE FIRST
INSTANCE." 

NO SUCH EXIGENT CIRCUMSTANCES AS WOULD AUTHORIZE NONCOMPLIANCE WITH
THE CALIFORNIA STATUTE WERE ARGUED IN MILLER, AND THE COURT EXPRESSLY
REFRAINED FROM DISCUSSING THE QUESTION, CITING THE MADDOX CASE WITHOUT
DISAPPROVAL.  357 U.S., AT 309.  (FN11)  HERE JUSTIFICATION FOR THE
OFFICERS' FAILURE TO GIVE NOTICE IS UNIQUELY PRESENT.  IN ADDITION TO
THE OFFICERS' BELIEF THAT KER WAS IN POSSESSION OF NARCOTICS, WHICH
COULD BE QUICKLY AND EASILY DESTROYED, KER'S FURTIVE CONDUCT IN ELUDING
THEM SHORTLY BEFORE THE ARREST WAS GROUND FOR THE BELIEF THAT HE MIGHT
WELL HAVE BEEN EXPECTING THE POLICE.  (FN12)  WE THEREFORE HOLD THAT IN
THE PARTICULAR CIRCUMSTANCES OF THIS CASE THE OFFICERS' METHOD OF
ENTRY, SANCTIONED BY THE LAW OF CALIFORNIA, WAS NOT UNREASONABLE UNDER
THE STANDARDS OF THE FOURTH AMENDMENT AS APPLIED TO THE STATES THROUGH
THE FOURTEENTH AMENDMENT. 

                                       IV. 

HAVING HELD THE PETITIONERS' ARRESTS LAWFUL, IT REMAINS ONLY TO
CONSIDER WHETHER THE SEARCH WHICH PRODUCED THE EVIDENCE LEADING TO
THEIR CONVICTIONS WAS LAWFUL AS INCIDENT TO THOSE ARRESTS.  THE
DOCTRINE THAT A SEARCH WITHOUT WARRANT MAY BE LAWFULLY CONDUCTED IF
INCIDENT TO A LAWFUL ARREST HAS LONG BEEN RECOGNIZED AS CONSISTENT WITH
THE FOURTH AMENDMENT'S PROTECTION AGAINST UNREASONABLE SEARCHES AND
SEIZURES.  SEE MARRON V. UNITED STATES, 275 U.S. 192 (1927); HARRIS V.
UNITED STATES, 331 U.S. 145 (1947); ABEL V. UNITED STATES, 362 U.S. 217
(1960); KAPLAN, SEARCH AND SEIZURE:  A NO-MAN'S LAND IN THE CRIMINAL
LAW, 49 CAL. L. REV. 474, 490-493 (1961).  THE CASES HAVE IMPOSED NO
REQUIREMENT THAT THE ARREST BE UNDER AUTHORITY OF AN ARREST WARRANT,
BUT ONLY THAT IT BE LAWFUL.  SEE MARRON V. UNITED STATES, SUPRA, AT 198
199; UNITED STATES V. RABINOWITZ, SUPRA, AT 61; CF. AGNELLO V. UNITED
STATES, 269 U.S. 20, 30-31 (1925).  THE QUESTION REMAINS WHETHER THE
OFFICERS' ACTION HERE EXCEEDED THE RECOGNIZED BOUNDS OF AN INCIDENTAL
SEARCH. 

PETITIONERS CONTEND THAT THE SEARCH WAS UNREASONABLE IN THAT THE
OFFICERS COULD PRACTICABLY HAVE OBTAINED A SEARCH WARRANT.  THE
PRACTICABILITY OF OBTAINING A WARRANT IS NOT THE CONTROLLING FACTOR
WHEN A SEARCH IS SOUGHT TO BE JUSTIFIED AS INCIDENT TO ARREST, UNITED
STATES V. RABINOWITZ, SUPRA; BUT WE NEED NOT REST THE VALIDITY OF THE
SEARCH HERE ON RABINOWITZ, SINCE WE AGREE WITH THE CALIFORNIA COURT
THAT TIME CLEARLY WAS OF THE ESSENCE.  THE OFFICERS' OBSERVATIONS AND
THEIR CORROBORATION, WHICH FURNISHED PROBABLE CAUSE FOR GEORGE KER'S
ARREST, OCCURRED AT ABOUT 9 P.M., APPROXIMATELY ONE HOUR BEFORE THE
TIME OF ARREST.  THE OFFICERS HAD REASON TO ACT QUICKLY BECAUSE OF
KER'S FURTIVE CONDUCT AND THE LIKELIHOOD THAT THE MARIJUANA WOULD BE
DISTRIBUTED OR HIDDEN BEFORE A WARRANT COULD BE OBTAINED AT THAT TIME
OF NIGHT.  (FN13)  THUS THE FACTS BEAR NO RESEMBLANCE TO THOSE IN
TRUPIANO V. UNITED STATES, 334 U.S. 699 (1948), WHERE FEDERAL AGENTS
FOR THREE WEEKS HAD BEEN IN POSSESSION OF KNOWLEDGE SUFFICIENT TO
SECURE A SEARCH WARRANT. 

THE SEARCH OF THE PETITIONERS' APARTMENT WAS WELL WITHIN THE LIMITS
UPHELD IN HARRIS V. UNITED STATES, SUPRA, WHICH ALSO CONCERNED A
PRIVATE APARTMENT DWELLING.  THE EVIDENCE HERE, UNLIKE THAT IN HARRIS,
WAS THE INSTRUMENTALITY OF THE VERY CRIME FOR WHICH PETITIONERS WERE
ARRESTED, AND THE RECORD DOES NOT INDICATE THAT THE SEARCH HERE WAS AS
EXTENSIVE IN TIME OR IN AREA AS THAT UPHELD IN HARRIS. 

THE PETITIONERS' ONLY REMAINING CONTENTION IS THAT THE DISCOVERY OF
THE BRICK OF MARIJUANA CANNOT BE JUSTIFIED AS INCIDENTAL TO ARREST
SINCE IT PRECEDED THE ARREST.  THIS CONTENTION IS OF COURSE CONTRARY TO
GEORGE KER'S TESTIMONY, BUT WE REJECT IT IN ANY EVENT.  WHILE AN ARREST
MAY NOT BE USED MERELY AS THE PRETEXT FOR A SEARCH WITHOUT WARRANT, THE
CALIFORNIA COURT SPECIFICALLY FOUND AND THE RECORD SUPPORTS BOTH THAT
THE OFFICERS ENTERED THE APARTMENT FOR THE PURPOSE OF ARRESTING GEORGE
KER AND THAT THEY HAD PROBABLE CAUSE TO MAKE THAT ARREST PRIOR TO THE
ENTRY.  (FN14)  WE CANNOT SAY THAT IT WAS UNREASONABLE FOR OFFICER
BERMAN, UPON SEEING DIANE KER EMERGE FROM THE KITCHEN, MERELY TO WALK
TO THE DOORWAY OF THAT ADJACENT ROOM.  WE THUS AGREE WITH THE
CALIFORNIA COURT'S HOLDING THAT THE DISCOVERY OF THE BRICK OF MARIJUANA
DID NOT CONSTITUTE A SEARCH, SINCE THE OFFICER MERELY SAW WHAT WAS
PLACED BEFORE HIM IN FULL VIEW.  UNITED STATES V. LEE, 274 U.S. 559
(1927); UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 465 (1932); PEOPLE V.
WEST, 144 CAL. APP. 2D 214, 300 P.2D 729 (1956).  THEREFORE, WHILE
CALIFORNIA LAW DOES NOT REQUIRE THAT AN ARREST PRECEDE AN INCIDENTAL
SEARCH AS LONG AS PROBABLE CAUSE EXISTS AT THE OUTSET, WILLSON V.
SUPERIOR COURT, 46 CAL. 2D 291, 294 P.2D 36 (1956), THE CALIFORNIA
COURT DID NOT RELY ON THAT RULE AND WE NEED NOT REACH THE QUESTION OF
ITS STATUS UNDER THE FEDERAL CONSTITUTION. 

                                         V. 

THE PETITIONERS STATE AND THE RECORD BEARS OUT THAT THE OFFICERS
SEARCHED DIANE KER'S AUTOMOBILE ON THE DAY SUBSEQUENT TO HER ARREST. 
THE REASONABLENESS OF THAT SEARCH, HOWEVER, WAS NOT RAISED IN THE
PETITION FOR CERTIORARI, NOR WAS IT DISCUSSED IN THE BRIEF HERE. 
ORDINARILY, "WE DO NOT REACH FOR CONSTITUTIONAL QUESTIONS NOT RAISED BY
THE PARTIES," MAZER V. STEIN, 347 U.S. 201, 206, N. 5 (1954), NOR
EXTEND OUR REVIEW BEYOND THOSE SPECIFIC FEDERAL QUESTIONS PROPERLY
RAISED IN THE STATE COURT.  THE RECORD GIVES NO INDICATION THAT THE
ISSUE WAS RAISED IN THE TRIAL COURT OR IN THE DISTRICT COURT OF APPEAL,
THE LATTER COURT DID NOT ADJUDICATE IT AND WE THEREFORE FIND NO REASON
TO REACH IT ON THE RECORD.  (FN15) 

FOR THESE REASONS THE JUDGMENT OF THE CALIFORNIA DISTRICT COURT OF
APPEAL IS AFFIRMED. 

FN1  THIS CONTENTION WAS INITIALLY RAISED PRIOR TO THE TRIAL. 
THE INFORMATION ON THE GROUND THAT THE DEFENDANT HAS BEEN COMMITTED
WITHOUT PROBABLE CAUSE.  EVIDENCE ON THAT ISSUE WAS PRESENTED OUT OF
THE PRESENCE OF THE JURY, AND, FOLLOWING THE COURT'S DENIAL OF THE
MOTION, THE PETITIONERS WERE TRIED AND CONVICTED BY THE JURY. 

FN2  DURING THE HEARING ON THE SEC. 995 MOTION, SEE NOTE 1, SUPRA,
BLACK TESTIFIED FOR THE DEFENSE, ADMITTING THAT HE KNEW THE PETITIONERS
BUT DENYING THAT HE GAVE OFFICER BERMAN INFORMATION ABOUT GEORGE KER. 
BLACK FIRST DENIED BUT THEN ADMITTED THAT HE HAD MET WITH OFFICER
BERMAN AND ANOTHER OFFICER IN WHOSE PRESENCE BERMAN SAID THE
INFORMATION ABOUT KER WAS GIVEN. 

FN3  ARRESTING OFFICERS BERMAN AND WARTHEN HAD BEEN ATTACHED TO THE
NARCOTICS DETAIL OF THE LOS ANGELES COUNTY SHERIFF'S OFFICE FOR THREE
AND FOUR YEARS, RESPECTIVELY.  EACH HAD PARTICIPATED IN HUNDREDS OF
ARRESTS INVOLVING MARIJUANA.  WARTHEN TESTIFIED THAT ON "MANY, MANY
OCCASIONS" IN HIS EXPERIENCE WITH NARCOTICS ARRESTS "PERSONS HAVE
FLUSHED NARCOTICS DOWN TOILETS, PUSHED THEM DOWN DRAINS AND SINKS AND
MANY OTHER METHODS OF GETTING RID OF THEM PRIOR TO MY ENTRANCE  ...
." 

FN4  FOR THE REASONS DISCUSSED IN SEC. V OF THIS OPINION, WE FIND
THAT THE VALIDITY OF THE SEARCH OF THE AUTOMOBILE IS NOT BEFORE US AND
WE THEREFORE DO NOT PASS ON IT. 

FN5  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

FN6  "NO PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF  ...  ."

FN7  OUR HOLDING AS TO ENFORCEABILITY OF THIS FEDERAL CONSTITUTIONAL
RULE AGAINST THE STATES HAD ITS SOURCE IN THE FOLLOWING DECLARATION IN
WOLF V. COLORADO, 338 U.S. 25, 27-28 (1949): 

"THE SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY INSTRUSION BY THE
POLICE - WHICH IS AT THE CORE OF THE FOURTH AMENDMENT - IS  ...
IMPLICIT IN 'THE CONCEPT OF ORDERED LIBERTY' AND AS SUCH ENFORCEABLE
AGAINST THE STATES THROUGH THE DUE PROCESS CLAUSE. 

FN8  IN DRAPER THE ARREST UPON PROBABLE CAUSE WAS AUTHORIZED UNDER 26
U.S.C. SEC. 7607, AUTHORIZING NARCOTICS AGENTS TO MAKE AN ARREST
WITHOUT WARRANT IF THEY HAVE "REASONABLE GROUNDS TO BELIEVE THAT THE
PERSON TO BE ARRESTED HAS COMMITTED OR IS COMMITTING SUCH VIOLATION." 
UNDER SEC. 836, CALIFORNIA PENAL CODE, AN OFFICER MAY ARREST WITHOUT A
WARRANT IF HE HAS "REASONABLE CAUSE TO BELIEVE THAT THE PERSON TO BE
ARRESTED HAS COMMITTED A FELONY  ...  ." 

FN9  "TO MAKE AN ARREST,  ...  IN ALL CASES A PEACE OFFICER, MAY
BREAK OPEN THE DOOR OR WINDOW OF THE HOUSE IN WHICH THE PERSON TO BE
ARRESTED IS, OR IN WHICH  ...  HE HAS REASONABLE GROUNDS FOR BELIEVING
HIM TO BE, AFTER HAVING DEMANDED ADMITTANCE AND EXPLAINED THE PURPOSE
FOR WHICH ADMITTANCE IS DESIRED." 

FN10  "THE OFFICER MAY BREAK OPEN ANY OUTER OR INNER DOOR OR WINDOW
OF A HOUSE, OR ANY PART OF A HOUSE, OR ANYTHING THEREIN, TO EXECUTE A
SEARCH WARRANT, IF, AFTER NOTICE OF HIS AUTHORITY AND PURPOSE, HE IS
REFUSED ADMITTANCE OR WHEN NECESSARY TO LIBERATE HIMSELF OR A PERSON
AIDING HIM IN THE EXECUTION OF THE WARRANT." 

FN11  NOR HAS THE COURT REJECTED THE PROPOSITION THAT NONCOMPLIANCE
MAY BE REASONABLE IN EXIGENT CIRCUMSTANCES SUBSEQUENT TO MILLER.  IN
WONG SUN V. UNITED STATES, 371 U.S. 471 (1963), THE COURT HELD THAT
FEDERAL OFFICERS HAD NOT COMPLIED WITH SEC. 3109 IN EXECUTING AN
ARREST.  THERE THE COURT NOTED THAT IN MILLER IT HAD RESERVED THE
QUESTION OF AN EXCEPTION IN EXIGENT CIRCUMSTANCES AND STATED THAT
"HERE, AS IN MILLER, THE GOVERNMENT CLAIMS NO EXTRAORDINARY
CIRCUMSTANCES - SUCH AS THE IMMINENT DESTRUCTION OF VITAL EVIDENCE, OR
THE NEED TO RESCUE A VICTIM IN PERIL -  ...  WHICH EXCUSED THE
OFFICER'S FAILURE TRUTHFULLY TO STATE HIS MISSION BEFORE HE BROKE IN." 
ID., AT 483-484. 

FN12  A SEARCH OF THE RECORD WITH THE AID OF HINDSIGHT MAY LEND SOME
SUPPORT TO THE CONCLUSION THAT, CONTRA THE REASONABLE BELIEF OF THE
OFFICERS, PETITIONERS MAY NOT HAVE BEEN PREPARED FOR AN IMMINENT VISIT
FROM THE POLICE.  IT GOES WITHOUT SAYING THAT IN DETERMINING THE
LAWFULNESS OF ENTRY AND THE EXISTENCE OF PROBABLE CAUSE WE MAY CONCERN
OURSELVES ONLY WITH WHAT THE OFFICERS HAD REASON TO BELIEVE AT THE TIME
OF THEIR ENTRY.  JOHNSON V. UNITED STATES, 333 U.S. 10, 17 (1948).  AS
THE COURT SAID IN UNITED STATES V. DI RE, 332 U.S. 581, 595 (1948), "A
SEARCH IS NOT TO BE MADE LEGAL BY WHAT IT TURNS UP.  IN LAW IT IS GOOD
OR BAD WHEN IT STARTS AND DOES NOT CHANGE CHARACTER FROM" WHAT IS DUG
UP SUBSEQUENTLY. 

FN13  IN CASES IN WHICH A SEARCH COULD NOT BE REGARDED AS INCIDENT TO
ARREST BECAUSE THE PETITIONER WAS NOT PRESENT AT THE TIME OF THE ENTRY
AND SEARCH, THE ABSENCE OF COMPELLING CIRCUMSTANCES, SUCH AS THE THREAT
OF DESTRUCTION OF EVIDENCE, SUPPORTED THE COURT'S HOLDINGS THAT
SEARCHES WITHOUT WARRANTS WERE UNCONSTITUTIONAL.  SEE CHAPMAN V. UNITED
STATES, 365 U.S. 610, 615 (1961); UNITED STATES V. JEFFERS, 342 U.S.
48, 52 (1951); TAYLOR V. UNITED STATES, 286 U.S. 1, 5 (1932). 

FN14  COMPARE JOHNSON V. UNITED STATES, NOTE 12, SUPRA, AT 40.  THERE
THE COURT HELD THAT A SEARCH COULD NOT BE JUSTIFIED AS INCIDENT TO
ARREST SINCE THE OFFICERS, PRIOR TO THEIR ENTRY INTO A HOTEL ROOM, HAD
NO PROBABLE CAUSE FOR THE ARREST OF THE OCCUPANT.  THE COURT STATED
THAT "AN OFFICER GAINING ACCESS TO PRIVATE LIVING QUARTERS UNDER COLOR
OF HIS OFFICE AND OF THE LAW WHICH HE PERSONIFIES MUST THEN HAVE SOME
VALID BASIS IN LAW FOR THE INTRUSION."  HERE, OF COURSE, PROBABLE CAUSE
FOR THE ARREST OF PETITIONER GEORGE KER PROVIDED THAT VALID BASIS. 

FN15  THE RECORD SHOWS THAT PETITIONERS MADE NO OBJECTION TO THE
ADMISSION OF ANY OF THE EVIDENCE, THUS FAILING TO OBSERVE A STATE
PROCEDURAL REQUIREMENT, PEOPLE V. BRITTAIN, 149 CAL. APP. 2D 201, 308
P.2D 38 (1957); SEE MAPP V. OHIO, SUPRA, AT 659, N. 9.  HOWEVER, THE
DISTRICT COURT OF APPEAL PASSED ON THE ISSUE OF THE NARCOTICS SEIZED IN
THE APARTMENT, PRESUMABLY ON THE GROUND THAT PETITIONERS PRESERVED THAT
QUESTION BY THEIR MOTION UNDER SEC. 995, CALIFORNIA PENAL CODE, WHICH
WAS DIRECTED TOWARD THE PRINCIPAL OBJECTION TO THAT SEARCH - THE
ALLEGED LACK OF PROBABLE CAUSE.  WHILE "THERE CAN BE NO QUESTION AS TO
THE PROPER PRESENTATION OF A FEDERAL CLAIM WHEN THE HIGHEST STATE COURT
PASSES ON IT," RALEY V. OHIO, 360 U.S. 423, 436 (1959), THERE IS NO
INDICATION IN THE COURT'S OPINION THAT IT PASSED ON THE ISSUE OF THE
SEARCH OF THE AUTOMOBILE, NOR IS THERE ANY INDICATION IN THE
PETITIONERS' BRIEFS IN THAT COURT THAT THE ISSUE WAS PRESENTED. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

HERETOFORE THERE HAS BEEN A WELL-ESTABLISHED LINE OF DEMARCATION
BETWEEN THE CONSTITUTIONAL PRINCIPLES GOVERNING THE STANDARDS FOR STATE
SEARCHES AND SEIZURES AND THOSE CONTROLLING FEDERAL ACTIVITY OF THIS
KIND.  FEDERAL SEARCHES AND SEIZURES HAVE BEEN SUBJECT TO THE
REQUIREMENT OF "REASONABLENESS" CONTAINED IN THE FOURTH AMENDMENT, AS
THAT REQUIREMENT HAS BEEN ELABORATED OVER THE YEARS IN FEDERAL
LITIGATION.  STATE SEARCHES AND SEIZURES, ON THE OTHER HAND, HAVE BEEN
JUDGED, AND IN MY VIEW PROPERLY SO, BY THE MORE FLEXIBLE CONCEPT OF
"FUNDAMENTAL" FAIRNESS, OF RIGHTS "BASIC TO A FREE SOCIETY," EMBRACED
IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  SEE WOLF V.
COLORADO, 338 U.S. 25, 27;* CF. ROCHIN V. CALIFORNIA, 342 U.S. 165;
PALKO V. CONNECTICUT, 302 U.S. 319.  TODAY THIS DISTINCTION IN
CONSTITUTIONAL PRINCIPLE IS ABANDONED.  HENCEFORTH STATE SEARCHES AND
SEIZURES ARE TO BE JUDGED BY THE SAME CONSTITUTIONAL STANDARDS AS APPLY
IN THE FEDERAL SYSTEM.    *MAPP V. OHIO, 367 U.S. 643, DID NOT PURPORT
TO CHANGE THE STANDARDS BY WHICH STATE SEARCHES AND SEIZURES WERE TO BE
JUDGED; RATHER IT HELD ONLY THAT THE "EXCLUSIONARY" RULE OF WEEKS V.
UNITED STATES, 232 U.S. 383, WAS APPLICABLE TO THE STATES. 

IN MY OPINION THIS FURTHER EXTENSION OF FEDERAL POWER OVER STATE
CRIMINAL CASES, CF. FAY V. NOIA, 372 U.S. 391; DOUGLAS V. CALIFORNIA,
372 U.S. 353; DRAPER V. WASHINGTON, 372 U.S. 487 - ALL DECIDED ONLY A
FEW WEEKS AGO, IS QUITE UNCALLED FOR AND UNWISE.  IT IS UNCALLED FOR
BECAUSE THE STATES GENERALLY, AND MORE PARTICULARLY CALIFORNIA, ARE
INCREASINGLY EVIDENCING CONCERN ABOUT IMPROVING THEIR OWN CRIMINAL
PROCEDURES, AS THIS COURT ITSELF HAS RECENTLY OBSERVED ON MORE THAN ONE
OCCASION (SEE GIDEON V. WAINWRIGHT, 372 U.S. 335, 345; ANTE, P. 31),
AND BECAUSE THE FOURTEENTH AMENDMENT'S REQUIREMENTS OF FUNDAMENTAL
FAIRNESS STAND AS A BULWARK AGAINST SERIOUS LOCAL SHORTCOMINGS IN THIS
FIELD.  THE RULE IS UNWISE BECAUSE THE STATES, WITH THEIR DIFFERING LAW
ENFORCEMENT PROBLEMS, SHOULD NOT BE PUT IN A CONSTITUTIONAL STRAIT
JACKET, AND ALSO BECAUSE THE STATES, MORE LIKELY THAN NOT, WILL BE
PLACED IN AN ATMOSPHERE OF UNCERTAINTY SINCE THIS COURT'S DECISIONS IN
THE REALM OF SEARCH AND SEIZURE ARE HARDLY NOTABLE FOR THEIR
PREDICTABILITY.  CF. HARRIS V. UNITED STATES, 331 U.S. 145, 175-181
(APPENDIX TO DISSENTING OPINION OF MR. JUSTICE FRANKFURTER).  (THE
LATTER POINT IS INDEED FORCEFULLY ILLUSTRATED BY THE FACT THAT IN THE
FIRST APPLICATION OF ITS NEW CONSTITUTIONAL RULE THE MAJORITY FINDS
ITSELF EQUALLY DIVIDED.)  AND IF THE COURT IS PREPARED TO RELAX FOURTH
AMENDMENT STANDARDS IN ORDER TO AVOID UNDULY FETTERING THE STATES, THIS
WOULD BE IN DEROGATION OF LAW ENFORCEMENT STANDARDS IN THE FEDERAL
SYSTEM - UNLESS THE FOURTH AMENDMENT IS TO MEAN ONE THING FOR THE
STATES AND SOMETHING ELSE FOR THE FEDERAL GOVERNMENT. 

I CAN SEE NO GOOD COMING FROM THIS CONSTITUTIONAL ADVENTURE.  IN
JUDGING STATE SEARCHES AND SEIZURES I WOULD CONTINUE TO ADHERE TO
ESTABLISHED FOURTEENTH AMENDMENT CONCEPTS OF FUNDAMENTAL FAIRNESS.  SO
JUDGING THIS CASE, I CONCUR IN THE RESULT. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE GOLDBERG JOIN. 

I JOIN PART I OF MR. JUSTICE CLARK'S OPINION AND THE HOLDING THEREIN
THAT "AS WE SAID IN MAPP  ...  THE FOURTH AMENDMENT 'IS ENFORCEABLE
AGAINST  ...  THE STATES BY THE SAME SANCTION OF EXCLUSION AS IS USED
AGAINST THE FEDERAL GOVERNMENT,' BY THE APPLICATION OF THE SAME
CONSTITUTIONAL STANDARD PROHIBITING 'UNREASONABLE SEARCHES AND
SEIZURES.'"  ONLY OUR BROTHER HARLAN DISSENTS FROM THAT HOLDING; HE
WOULD JUDGE STATE SEARCHES AND SEIZURES "BY THE MORE FLEXIBLE CONCEPT
OF 'FUNDAMENTAL' FAIRNESS, OF RIGHTS 'BASIC TO A FREE SOCIETY,'
EMBRACED IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT." 

HOWEVER, MR. JUSTICE CLARK, MR. JUSTICE BLACK, MR. JUSTICE STEWART
AND MR. JUSTICE WHITE DO NOT BELIEVE THAT THE FEDERAL REQUIREMENT OF
REASONABLENESS CONTAINED IN THE FOURTH AMENDMENT WAS VIOLATED IN THIS
CASE.  THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, MR. JUSTICE GOLDBERG AND
I HAVE THE CONTRARY VIEW.  FOR EVEN ON THE PREMISE THAT THERE WAS
PROBABLE CAUSE BY FEDERAL STANDARDS FOR THE ARREST OF GEORGE KER, THE
ARRESTS OF THESE PETITIONERS WERE NEVERTHELESS ILLEGAL, BECAUSE THE
UNANNOUNCED INTRUSION OF THE ARRESTING OFFICERS INTO THEIR APARTMENT
VIOLATED THE FOURTH AMENDMENT.  SINCE THE ARRESTS WERE ILLEGAL, MAPP V.
OHIO, 367 U.S. 643, REQUIRES THE EXCLUSION OF THE EVIDENCE WHICH WAS
THE PRODUCT OF THE SEARCH INCIDENT TO THOSE ARRESTS. 

EVEN IF PROBABLE CAUSE EXISTS FOR THE ARREST OF A PERSON WITHIN, THE
FOURTH AMENDMENT IS VIOLATED BY AN UNANNOUNCED POLICE INTRUSION INTO A
PRIVATE HOME, WITH OR WITHOUT AN ARREST WARRANT, EXCEPT (1) WHERE THE
PERSONS WITHIN ALREADY KNOW OF THE OFFICERS' AUTHORITY AND PURPOSE, OR
(2) WHERE THE OFFICERS ARE JUSTIFIED IN THE BELIEF THAT PERSONS WITHIN
ARE IN IMMINENT PERIL OF BODILY HARM, OR (3) WHERE THOSE WITHIN, MADE
AWARE OF THE PRESENCE OF SOMEONE OUTSIDE (BECAUSE, FOR EXAMPLE, THERE
HAS BEEN A KNOCK AT THE DOOR), ARE THEN ENGAGED IN ACTIVITY WHICH
JUSTIFIES THE OFFICERS IN THE BELIEF THAT AN ESCAPE OR THE DESTRUCTION
OF EVIDENCE IS BEING ATTEMPTED. 

              I. 

IT WAS FIRMLY ESTABLISHED LONG BEFORE THE ADOPTION OF THE BILL OF
RIGHTS THAT THE FUNDAMENTAL LIBERTY OF THE INDIVIDUAL INCLUDES
PROTECTION AGAINST UNANNOUNCED POLICE ENTRIES.  "THE FOURTH AMENDMENT
DID BUT EMBODY A PRINCIPLE OF ENGLISH LIBERTY, A PRINCIPLE OLD, YET
NEWLY WON, THAT FINDS ANOTHER EXPRESSION IN THE MAXIM 'EVERY MAN'S HOME
IS HIS CASTLE.'"  FRAENKEL, CONCERNING SEARCHES AND SEIZURES, 34 HARV.
L. REV. 361, 365 (1921); FRANK V. MARYLAND, 359 U.S. 360, 376-382
(DISSENTING OPINION).  AS EARLY AS SEMAYNE'S CASE, 5 CO. REP. 91A, 91B,
77 ENG. REP. 194, 195 (1603), IT WAS DECLARED THAT "IN ALL CASES WHEN
THE KING IS PARTY, THE SHERIFF (IF THE DOORS BE NOT OPEN) MAY BREAK THE
PARTY'S HOUSE, EITHER TO ARREST HIM, OR TO DO OTHER EXECUTION OF THE
KING'S PROCESS, IF OTHERWISE HE CANNOT ENTER.  BUT BEFORE HE BREAKS IT,
HE OUGHT TO SIGNIFY THE CAUSE OF HIS COMING, AND TO MAKE REQUEST TO
OPEN DOORS  ...  ."  OVER A CENTURY LATER THE LEADING COMMENTATORS UPON
THE ENGLISH CRIMINAL LAW AFFIRMED THE CONTINUING VITALITY OF THAT
PRINCIPLE.  1 HALE, PLEAS OF THE CROWN (1736), 583; SEE ALSO 2 HAWKINS,
PLEAS OF THE CROWN (6TH ED. 1787), C. 14, SEC. 1; FOSTER, CROWN LAW
(1762), 320-321.  (FN1)  PERHAPS ITS MOST EMPHATIC CONFIRMATION WAS
SUPPLIED ONLY 35 YEARS BEFORE THE RATIFICATION OF THE BILL OF RIGHTS. 
IN CURTIS' CASE, FOST.  135, 168 ENG.  REP. 67, DECIDED IN 1756, THE
DEFENDANT, ON TRIAL FOR THE MURDER OF A CROWN OFFICER WHO WAS
ATTEMPTING AN ENTRY TO SERVE AN ARREST WARRANT, PLEADED THAT BECAUSE
THE OFFICER HAD FAILED ADEQUATELY TO ANNOUNCE HIMSELF AND HIS MISSION
BEFORE BREAKING THE DOORS, FORCEFUL RESISTANCE TO HIS ENTRY WAS
JUSTIFIED AND THE KILLING WAS THEREFORE JUSTIFIABLE HOMICIDE.  IN
RECOGNIZING THE DEFENSE THE COURT REPEATED THE PRINCIPLE THAT "PEACE
OFFICERS, HAVING A LEGAL WARRANT TO ARREST FOR A BREACH OF THE PEACE,
MAY BREAK OPEN DOORS, AFTER HAVING DEMANDED ADMITTANCE AND GIVEN DUE
NOTICE OF THEIR WARRANT"; THE COURT CONTINUED THAT "NO PRECISE FORM OF
WORDS IS REQUIRED IN A CASE OF THIS KIND" BECAUSE "IT IS SUFFICIENT
THAT THE PARTY HATH NOTICE, THAT THE OFFICER COMETH NOT AS A MERE
TRESPASSER, BUT CLAIMING TO ACT UNDER A PROPER AUTHORITY  ...  ." 
FOST., AT 136-137, 168 ENG. REP., AT 68.  THE PRINCIPLE WAS AGAIN
CONFIRMED NOT LONG AFTER THE FOURTH AMENDMENT BECAME PART OF OUR
CONSTITUTION.  ABBOTT, C.J., SAID IN LAUNOCK V. BROWN, 2 B. & ALD. 
592, 593-594, 106 ENG. REP. 482, 483 (1819): 

"  ...  I AM CLEARLY OF OPINION THAT, IN THE CASE OF A MISDEMEANOR,
SUCH PREVIOUS DEMAND IS REQUISITE  ...  .  IT IS REASONABLE THAT THE
LAW SHOULD BE SO; FOR IF NO PREVIOUS DEMAND IS MADE, HOW IS IT POSSIBLE
FOR A PARTY TO KNOW WHAT THE OBJECT OF THE PERSON BREAKING OPEN THE
DOOR MAY BE?  HE HAS A RIGHT TO CONSIDER IT AS AN AGGRESSION ON HIS
PRIVATE PROPERTY, WHICH HE WILL BE JUSTIFIED IN RESISTING TO THE
UTMOST."  (FN2) 

THE PROTECTIONS OF INDIVIDUAL FREEDOM CARRIED INTO THE FOURTH
AMENDMENT, BOYD V. UNITED STATES, 116 U.S. 616, 630, UNDOUBTEDLY
INCLUDED THIS FIRMLY ESTABLISHED REQUIREMENT OF AN ANNOUNCEMENT BY
POLICE OFFICERS OF PURPOSE AND AUTHORITY BEFORE BREAKING INTO AN
INDIVIDUAL'S HOME.  THE REQUIREMENT IS NO MERE PROCEDURAL NICETY OR
FORMALITY ATTENDANT UPON THE SERVICE OF A WARRANT.  DECISIONS IN BOTH
THE FEDERAL AND STATE COURTS HAVE RECOGNIZED, AS DID THE ENGLISH
COURTS, THAT THE REQUIREMENT IS OF THE ESSENCE OF THE SUBSTANTIVE
PROTECTIONS WHICH SAFEGUARD INDIVIDUAL LIBERTY.  (FN3)  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT HAS SAID: 

"  ...  THERE IS NO DIVISION OF OPINION AMONG THE LEARNED AUTHORS
...  THAT EVEN WHERE AN OFFICER MAY HAVE POWER TO BREAK OPEN A DOOR
WITHOUT A WARRANT, HE CANNOT LAWFULLY DO SO UNLESS HE FIRST NOTIFIES
THE OCCUPANTS AS TO THE PURPOSE OF HIS DEMAND FOR ENTRY."  ACCARINO V.
UNITED STATES, 85 U.S. APP. D.C. 394, 400, 179 F.2D 456, 462. 

SIMILARLY, THE SUPREME JUDICIAL COURT OF MASSACHUSETTS DECLARED IN
1852: 

"THE MAXIM OF LAW THAT EVERY MAN'S HOUSE IS HIS CASTLE  ...  HAS NOT
THE EFFECT TO RESTRAIN AN OFFICER OF THE LAW FROM BREAKING AND ENTERING
A DWELLING-HOUSE FOR THE PURPOSE OF SERVING A CRIMINAL PROCESS UPON THE
OCCUPANT.  IN SUCH CASE THE HOUSE OF THE PARTY IS NO SANCTUARY FOR HIM,
AND THE SAME MAY BE FORCIBLY ENTERED BY SUCH OFFICER AFTER A PROPER
NOTIFICATION OF THE PURPOSE OF THE ENTRY, AND A DEMAND UPON THE INMATES
TO OPEN THE HOUSE, AND A REFUSAL BY THEM TO DO SO."  BARNARD V.
BARTLETT, 10 CUSH.  (MASS.)  501, 502-503; CF. STATE V. SMITH, 1 N.H.
346. 

COURTS OF THE FRONTIER STATES ALSO ENFORCED THE REQUIREMENT.  FOR
EXAMPLE, TENNESSEE'S HIGH COURT RECOGNIZED THAT A POLICE OFFICER MIGHT
BREAK INTO A HOME TO SERVE AN ARREST WARRANT ONLY "AFTER DEMAND FOR
ADMITTANCE AND NOTICE OF HIS PURPOSE," MCCASLIN V. MCCORD, 116 TENN.
690, 708, 94 S.W. 79, 83; CF. HAWKINS V. COMMONWEALTH, 53 KY. 395. 
INDEED, A MAJORITY OF THE STATES HAVE ENACTED THE REQUIREMENT IN
STATUTES SUBSTANTIALLY SIMILAR TO CALIFORNIA PENAL CODE SEC. 844 AND
THE FEDERAL STATUTE, 18 U.S.C. SEC. 3109.  (FN4) 

MOREOVER, IN ADDITION TO CARRYING FORWARD THE PROTECTIONS ALREADY
AFFORDED BY ENGLISH LAW, THE FRAMERS ALSO MEANT BY THE FOURTH AMENDMENT
TO ELIMINATE ONCE AND FOR ALL THE ODIOUS PRACTICE OF SEARCHES UNDER
GENERAL WARRANTS AND WRITS OF ASSISTANCE AGAINST WHICH ENGLISH LAW HAD
GENERALLY LEFT THEM HELPLESS.  THE COLONIAL EXPERIENCE UNDER THE WRITS
WAS UNMISTAKABLY "FRESH IN THE MEMORIES OF THOSE WHO ACHIEVED OUR
INDEPENDENCE AND ESTABLISHED OUR FORM OF GOVERNMENT."  (FN5)  BOYD V.
UNITED STATES, SUPRA, AT 625.  THE PROBLEM OF ENTRY UNDER A GENERAL
WARRANT WAS NOT, OF COURSE, EXACTLY THAT OF UNANNOUNCED INTRUSION TO
ARREST WITH A WARRANT OR UPON PROBABLE CAUSE, BUT THE TWO PRACTICES
CLEARLY INVITED COMMON ABUSES.  ONE OF THE GROUNDS OF JAMES OTIS'
ELOQUENT INDICTMENT OF THE WRITS BEARS REPETITION HERE: 

"NOW ONE OF THE MOST ESSENTIAL BRANCHES OF ENGLISH LIBERTY IS THE
FREEDOM OF ONE'S HOUSE.  A MAN'S HOUSE IS HIS CASTLE; AND WHILST HE IS
QUIET, HE IS AS WELL GUARDED AS A PRINCE IN HIS CASTLE.  THIS WRIT, IF
IT SHOULD BE DECLARED LEGAL, WOULD TOTALLY ANNIHILATE THIS PRIVILEGE. 
CUSTOM-HOUSE OFFICERS MAY ENTER OUR HOUSES WHEN THEY PLEASE; WE ARE
COMMANDED TO PERMIT THEIR ENTRY.  THEIR MENIAL SERVANTS MAY ENTER, MAY
BREAK LOCKS, BARS, AND EVERY THING IN THEIR WAY:  AND WHETHER THEY
BREAK THROUGH MALICE OR REVENGE, NO MAN, NO COURT, CAN INQUIRE.  BARE
SUSPICION WITHOUT OATH IS SUFFICIENT."  TUDOR, LIFE OF JAMES OTIS
(1823), 66-67. 

SIMILAR, IF NOT THE SAME, DANGERS TO INDIVIDUAL LIBERTY ARE INVOLVED
IN UNANNOUNCED INTRUSIONS OF THE POLICE INTO THE HOMES OF CITIZENS. 
INDEED IN TWO RESPECTS SUCH INTRUSIONS ARE EVEN MORE OFFENSIVE TO THE
SANCTITY AND PRIVACY OF THE HOME.  IN THE FIRST PLACE SERVICE OF THE
GENERAL WARRANTS AND WRITS OF ASSISTANCE WAS USUALLY PRECEDED AT LEAST
BY SOME FORM OF NOTICE OR DEMAND FOR ADMISSION.  IN THE SECOND PLACE
THE WRITS OF ASSISTANCE BY THEIR VERY TERMS MIGHT BE SERVED ONLY DURING
DAYLIGHT HOURS.  (FN6)  BY SIGNIFICANT CONTRAST, THE UNANNOUNCED ENTRY
OF THE KER APARTMENT OCCURRED AFTER DARK, AND SUCH TIMING APPEARS TO BE
COMMON POLICE PRACTICE, AT LEAST IN CALIFORNIA.  (FN7) 

IT IS MUCH TOO LATE IN THE DAY TO DENY THAT A LAWFUL ENTRY IS AS
ESSENTIAL TO VINDICATION OF THE PROTECTIONS OF THE FOURTH AMENDMENT AS,
FOR EXAMPLE, PROBABLE CAUSE TO ARREST OR A SEARCH WARRANT FOR A SEARCH
NOT INCIDENTAL TO AN ARREST.  THIS COURT SETTLED IN GOULED V. UNITED
STATES, 255 U.S. 298, 305-306, THAT A LAWFUL ENTRY IS THE INDISPENSABLE
PREDICATE OF A REASONABLE SEARCH.  WE HELD THERE THAT A SEARCH WOULD
VIOLATE THE FOURTH AMENDMENT IF THE ENTRY WERE ILLEGAL WHETHER
ACCOMPLISHED "BY FORCE OR BY AN ILLEGAL THREAT OR SHOW OF FORCE" OR
"OBTAINED BY STEALTH INSTEAD OF BY FORCE OR COERCION."  SIMILARLY,
RIGID RESTRICTIONS UPON UNANNOUNCED ENTRIES ARE ESSENTIAL IF THE FOURTH
AMENDMENT'S PROHIBITION AGAINST INVASION OF THE SECURITY AND PRIVACY OF
THE HOME IS TO HAVE ANY MEANING. 

IT IS TRUE, OF COURSE, THAT THE ONLY DECISION OF THIS COURT WHICH
FORBIDS FEDERAL OFFICERS TO ARREST AND SEARCH AFTER AN UNANNOUNCED
ENTRY, MILLER V. UNITED STATES, 357 U.S. 301, DID NOT REST UPON
CONSTITUTIONAL DOCTRINE BUT RATHER UPON AN EXERCISE OF THIS COURT'S
SUPERVISORY POWERS.  BUT THAT DISPOSITION IN NO WAY IMPLIED THAT THE
SAME RESULT WAS NOT COMPELLED BY THE FOURTH AMENDMENT.  MILLER IS
SIMPLY AN INSTANCE OF THE USUAL PRACTICE OF THE COURT NOT TO DECIDE
CONSTITUTIONAL QUESTIONS WHEN A NONCONSTITUTIONAL BASIS FOR DECISION IS
AVAILABLE.  SEE INTERNATIONAL ASSN. OF MACHINISTS V. STREET, 367 U.S.
740, 749-750.  THE RESULT THERE DREW UPON ANALOGY TO A FEDERAL STATUTE,
SIMILAR IN ITS TERMS TO SEC. 844, WITH WHICH THE FEDERAL OFFICERS
CONCEDEDLY HAD NOT COMPLIED IN ENTERING TO MAKE AN ARREST.  NOTHING WE
SAID IN MILLER SO MUCH AS INTIMATED THAT, WITHOUT SUCH A BASIS FOR
DECISION, THE FOURTH AMENDMENT WOULD NOT HAVE REQUIRED THE SAME
RESULT.  THE IMPLICATION, INDEED, IS QUITE TO THE CONTRARY.  FOR THE
HISTORY ADDUCED IN MILLER IN SUPPORT OF THE NONCONSTITUTIONAL GROUND
PERSUASIVELY DEMONSTRATES THAT THE FOURTH AMENDMENT'S PROTECTIONS
INCLUDE THE SECURITY OF THE HOUSEHOLDER AGAINST UNANNOUNCED INVASIONS
BY THE POLICE.                                                II. 

THE COMMAND OF THE FOURTH AMENDMENT REFLECTS THE LESSON OF HISTORY
THAT "THE BREAKING AN OUTER DOOR IS, IN GENERAL, SO VIOLENT, OBNOXIOUS
AND DANGEROUS A PROCEEDING, THAT IT SHOULD BE ADOPTED ONLY IN EXTREME
CASES, WHERE AN IMMEDIATE ARREST IS REQUISITE."  1 BURN, JUSTICE OF THE
PEACE (28TH ED. 1837), 275-276.    I HAVE FOUND NO ENGLISH DECISION
WHICH CLEARLY RECOGNIZES ANY EXCEPTION TO THE REQUIREMENT THAT THE
POLICE FIRST GIVE NOTICE OF THEIR AUTHORITY AND PURPOSE BEFORE FORCIBLY
ENTERING A HOME.  EXCEPTIONS WERE EARLY SANCTIONED IN AMERICAN CASES,
E.G., READ V. CASE, 4 CONN. 166, BUT THESE WERE RIGIDLY AND NARROWLY
CONFINED TO SITUATIONS NOT WITHIN THE REASON AND SPIRIT OF THE GENERAL
REQUIREMENT.  SPECIFICALLY, EXCEPTIONAL CIRCUMSTANCES HAVE BEEN THOUGHT
TO EXIST ONLY WHEN, AS ONE ELEMENT, THE FACTS SURROUNDING THE
PARTICULAR ENTRY SUPPORT A FINDING THAT THOSE WITHIN ACTUALLY KNEW OR
MUST HAVE KNOWN OF THE OFFICER'S PRESENCE AND PURPOSE TO SEEK
ADMISSION.  CF. MILLER V. UNITED STATES, SUPRA, AT 311-313.  FOR
EXAMPLE, THE EARLIEST EXCEPTION SEEMS TO HAVE BEEN THAT "IN THE CASE OF
AN ESCAPE AFTER ARREST, THE OFFICER, ON FRESH PURSUIT OF THE OFFENDER
TO A HOUSE IN WHICH HE TAKES REFUGE, MAY BREAK THE DOORS TO RECAPTURE
HIM, IN THE CASE OF FELONY, WITHOUT A WARRANT, AND WITHOUT NOTICE OR
DEMAND FOR ADMISSION TO THE HOUSE OF THE OFFENDER."  (FN8)  WILGUS,
ARREST WITHOUT A WARRANT, 22 MICH. L. REV. 541, 798, 804 (1924).  THE
RATIONALE OF SUCH AN EXCEPTION IS CLEAR, AND SERVES TO UNDERSCORE THE
CONSISTENCY AND THE PURPOSE OF THE GENERAL REQUIREMENT OF NOTICE: WHERE
SUCH CIRCUMSTANCES AS AN ESCAPE AND HOT PURSUIT BY THE ARRESTING
OFFICER LEAVE NO DOUBT THAT THE FLEEING FELON IS AWARE OF THE OFFICER'S
PRESENCE AND PURPOSE, PAUSING AT THE THRESHOLD TO MAKE THE ORDINARILY
REQUISITE ANNOUNCEMENT AND DEMAND WOULD BE A SUPERFLUOUS ACT WHICH THE
LAW DOES NOT REQUIRE.  (FN9)  BUT NO EXCEPTIONS HAVE HERETOFORE
PERMITTED UNANNOUNCED ENTRIES IN THE ABSENCE OF SUCH AWARENESS ON THE
PART OF THE OCCUPANTS - UNLESS POSSIBLY WHERE THE OFFICERS ARE
JUSTIFIED IN THE BELIEF THAT SOMEONE WITHIN IS IN IMMEDIATE DANGER OF
BODILY HARM. 

TWO REASONS ROOTED IN THE CONSTITUTION CLEARLY COMPEL THE COURTS TO
REFUSE TO RECOGNIZE EXCEPTIONS IN OTHER SITUATIONS WHEN THERE IS NO
SHOWING THAT THOSE WITHIN WERE OR HAD BEEN MADE AWARE OF THE OFFICERS'
PRESENCE.  THE FIRST IS THAT ANY EXCEPTION NOT REQUIRING A SHOWING OF
SUCH AWARENESS NECESSARILY IMPLIES A REJECTION OF THE INVIOLABLE
PRESUMPTION OF INNOCENCE.  THE EXCUSE FOR FAILING TO KNOCK OR ANNOUNCE
THE OFFICER'S MISSION WHERE THE OCCUPANTS ARE OBLIVIOUS TO HIS PRESENCE
CAN ONLY BE AN ALMOST AUTOMATIC ASSUMPTION THAT THE SUSPECT WITHIN WILL
RESIST THE OFFICER'S ATTEMPT TO ENTER PEACEFULLY, OR WILL FRUSTRATE THE
ARREST BY AN ATTEMPT TO ESCAPE, OR WILL ATTEMPT TO DESTROY WHATEVER
POSSIBLY INCRIMINATING EVIDENCE HE MAY HAVE.  SUCH ASSUMPTIONS DO
OBVIOUS VIOLENCE TO THE PRESUMPTION OF INNOCENCE.  INDEED, THE VIOLENCE
IS COMPOUNDED BY ANOTHER ASSUMPTION, ALSO NECESSARILY INVOLVED, THAT A
SUSPECT TO WHOM THE OFFICER FIRST MAKES KNOWN HIS PRESENCE WILL FURTHER
VIOLATE THE LAW.  IT NEED HARDLY BE SAID THAT NOT EVERY SUSPECT IS IN
FACT GUILTY OF THE OFFENSE OF WHICH HE IS SUSPECTED, AND THAT NOT
EVERYONE WHO IS IN FACT GUILTY WILL FORCIBLY RESIST ARREST OR ATTEMPT
TO ESCAPE OR DESTROY EVIDENCE.  (FN10) 

THE SECOND REASON IS THAT IN THE ABSENCE OF A SHOWING OF AWARENESS BY
THE OCCUPANTS OF THE OFFICERS' PRESENCE AND PURPOSE, "LOUD NOISES" OR
"RUNNING" WITHIN WOULD AMOUNT, ORDINARILY, AT LEAST, ONLY TO AMBIGUOUS
CONDUCT.  OUR DECISIONS IN RELATED CONTEXTS HAVE HELD THAT AMBIGUOUS
CONDUCT CANNOT FORM THE BASIS FOR A BELIEF OF THE OFFICERS THAT AN
ESCAPE OR THE DESTRUCTION OF EVIDENCE IS BEING ATTEMPTED.  WONG SUN V.
UNITED STATES, 371 U.S. 471, 483-484; MILLER V. UNITED STATES, SUPRA,
AT 311. 

BEYOND THESE CONSTITUTIONAL CONSIDERATIONS, PRACTICAL HAZARDS OF LAW
ENFORCEMENT MILITATE STRONGLY AGAINST ANY RELAXATION OF THE REQUIREMENT
OF AWARENESS.  FIRST, CASES OF MISTAKEN IDENTITY ARE SURELY NOT NOVEL
IN THE INVESTIGATION OF CRIME.  THE POSSIBILITY IS VERY REAL THAT THE
POLICE MAY BE MISINFORMED AS TO THE NAME OR ADDRESS OF A SUSPECT, OR AS
TO OTHER MATERIAL INFORMATION.  THAT POSSIBILITY IS ITSELF A GOOD
REASON FOR HOLDING A TIGHT REIN AGAINST JUDICIAL APPROVAL OF
UNANNOUNCED POLICE ENTRIES INTO PRIVATE HOMES.  INNOCENT CITIZENS
SHOULD NOT SUFFER THE SHOCK, FRIGHT OR EMBARRASSMENT ATTENDANT UPON AN
UNANNOUNCED POLICE INTRUSION.  (FN11)  SECOND, THE REQUIREMENT OF
AWARENESS ALSO SERVES TO MINIMIZE THE HAZARDS OF THE OFFICERS'
DANGEROUS CALLING.  WE EXPRESSLY RECOGNIZED IN MILLER V. UNITED STATES,
SUPRA, AT 313, N. 12, THAT COMPLIANCE WITH THE FEDERAL NOTICE STATUTE
"IS ALSO A SAFEGUARD FOR THE POLICE THEMSELVES WHO MIGHT BE MISTAKEN
FOR PROWLERS AND BE SHOT DOWN BY A FEARFUL HOUSEHOLDER."  (FN12)
INDEED, ONE OF THE PRINCIPAL OBJECTIVES OF THE ENGLISH REQUIREMENT OF
ANNOUNCEMENT OF AUTHORITY AND PURPOSE WAS TO PROTECT THE ARRESTING
OFFICERS FROM BEING SHOT AS TRESPASSERS, "  ...  FOR IF NO PREVIOUS
DEMAND IS MADE, HOW IS IT POSSIBLE FOR A PARTY TO KNOW WHAT THE OBJECT
OF THE PERSON BREAKING OPEN THE DOOR MAY BE?  HE HAS A RIGHT TO
CONSIDER IT AS AN AGGRESSION ON HIS PRIVATE PROPERTY, WHICH HE WILL BE
JUSTIFIED IN RESISTING TO THE UTMOST."  LAUNOCK V. BROWN, 2 B. & ALD. 
592, 594, 106 ENG. REP. 482, 483 (1819). 

THESE COMPELLING CONSIDERATIONS UNDERLIE THE CONSTITUTIONAL BARRIER
AGAINST RECOGNITION OF EXCEPTIONS NOT PREDICATED ON KNOWLEDGE OR
AWARENESS OF THE OFFICERS' PRESENCE.  STATE AND FEDERAL OFFICERS HAVE
THE COMMON OBLIGATION TO RESPECT THIS BASIC CONSTITUTIONAL LIMITATION
UPON THEIR POLICE ACTIVITIES.  I REJECT THE CONTENTION THAT THE COURTS,
IN ENFORCING SUCH RESPECT ON THE PART OF ALL OFFICERS, STATE OR
FEDERAL, CREATE SERIOUS OBSTACLES TO EFFECTIVE LAW ENFORCEMENT. 
FEDERAL OFFICERS HAVE OPERATED FOR FIVE YEARS UNDER THE MILLER RULE
WITH NO DISCERNIBLE IMPAIRMENT OF THEIR ABILITY TO MAKE EFFECTIVE
ARRESTS AND OBTAIN IMPORTANT NARCOTICS CONVICTIONS.  EVEN IF IT WERE
TRUE THAT STATE AND CITY POLICE ARE GENERALLY LESS EXPERIENCED OR LESS
RESOURCEFUL THAN THEIR FEDERAL COUNTERPARTS (AND THE EXPERIENCE OF THE
VERY POLICE FORCE INVOLVED IN THIS CASE, UNDER CALIFORNIA'S GENERAL
EXCLUSIONARY RULE ADOPTED JUDICIALLY IN 1955, GOES VERY FAR TOWARD
REFUTING ANY SUCH SUGGESTION, (FN13) SEE ELKINS V. UNITED STATES, 364
U.S. 206, 220-221), THE FOURTH AMENDMENT'S PROTECTIONS AGAINST UNLAWFUL
SEARCH AND SEIZURE DO NOT CONTRACT OR EXPAND DEPENDING UPON THE
RELATIVE EXPERIENCE AND RESOURCEFULNESS OF DIFFERENT GROUPS OF LAW
ENFORCEMENT OFFICERS.  WHEN WE DECLARED IN MAPP THAT, BECAUSE THE
RIGHTS OF THE FOURTH AMENDMENT WERE OF NO LESSER DIGNITY THAN THOSE OF
THE OTHER LIBERTIES OF THE BILL OF RIGHTS ABSORBED IN THE FOURTEENTH, "
...  WE CAN NO LONGER PERMIT  ...  THEM TO BE REVOCABLE AT THE WHIM OF
ANY POLICE OFFICER WHO, IN THE NAME OF LAW ENFORCEMENT ITSELF, CHOOSES
TO SUSPEND THEIR  ...  ENJOYMENT,"  367 U.S., AT 660 - I THOUGHT BY
THESE WORDS WE HAD LAID TO REST THE VERY PROBLEMS OF CONSTITUTIONAL
DISSONANCE WHICH I FEAR THE PRESENT CASE SO SOON REVIVES.  (FN14)

III. 

I TURN NOW TO MY REASONS FOR BELIEVING THAT THE ARRESTS OF THESE
PETITIONERS WERE ILLEGAL.  MY BROTHER CLARK APPARENTLY RECOGNIZES THAT
THE ELEMENT OF THE KERS' PRIOR AWARENESS OF THE OFFICERS' PRESENCE WAS
ESSENTIAL, OR AT LEAST HIGHLY RELEVANT, TO THE VALIDITY OF THE
OFFICERS' UNANNOUNCED ENTRY INTO THE KER APARTMENT, FOR HE SAYS, "KER'S
FURTIVE CONDUCT IN ELUDING THEM SHORTLY BEFORE THE ARREST WAS GROUND
FOR THE BELIEF THAT HE MIGHT WELL HAVE BEEN EXPECTING THE POLICE."  BUT
THE TEST UNDER THE "FRESH PURSUIT" EXCEPTION WHICH MY BROTHER CLARK
APPARENTLY SEEKS TO INVOKE DEPENDS NOT, OF COURSE, UPON MERE CONJECTURE
WHETHER THOSE WITHIN "MIGHT WELL HAVE BEEN" EXPECTING THE POLICE, BUT
UPON WHETHER THERE IS EVIDENCE WHICH SHOWS THAT THE OCCUPANTS WERE IN
FACT AWARE THAT THE POLICE WERE ABOUT TO VISIT THEM.  THAT THE KERS
WERE WHOLLY OBLIVIOUS TO THE OFFICERS' PRESENCE IS THE ONLY POSSIBLE
INFERENCE ON THE UNCONTRADICTED FACTS; THE "FRESH PURSUIT" EXCEPTION IS
THEREFORE CLEARLY UNAVAILABLE.  WHEN THE OFFICERS LET THEMSELVES IN
WITH THE PASSKEY, "PROCEEDING QUIETLY," AS MY BROTHER CLARK SAYS,
GEORGE KER WAS SITTING IN HIS LIVING ROOM READING A NEWSPAPER, AND HIS
WIFE WAS BUSY IN THE KITCHEN.  THE MARIJUANA, MOREOVER, WAS IN FULL
VIEW ON THE TOP OF THE KITCHEN SINK.  MORE CONVINCING EVIDENCE OF THE
COMPLETE UNAWARENESS OF AN IMMINENT POLICE VISIT CAN HARDLY BE
IMAGINED.  INDEED, EVEN THE CONJECTURE THAT THE KERS "MIGHT WELL HAVE
BEEN EXPECTING THE POLICE" HAS NO SUPPORT IN THE RECORD.  THAT
CONJECTURE IS MADE TO REST ENTIRELY UPON THE UNEXPLAINED U-TURN MADE BY
KER'S CAR WHEN THE OFFICERS LOST HIM AFTER THE RENDEZVOUS AT THE OIL
FIELDS.  BUT SURELY THE U-TURN MUST BE DISREGARDED AS WHOLLY AMBIGUOUS
CONDUCT; THERE IS ABSOLUTELY NO PROOF THAT THE DRIVER OF THE KER CAR
KNEW THAT THE OFFICERS WERE FOLLOWING IT.  CF. MILLER V. UNITED STATES,
SUPRA, AT 311; WONG SUN V. UNITED STATES, SUPRA, AT 483-484. 

MY BROTHER CLARK INVOKES CHIEFLY, HOWEVER, THE EXCEPTION ALLOWING AN
UNANNOUNCED ENTRY WHEN OFFICERS HAVE REASON TO BELIEVE THAT SOMEONE
WITHIN IS ATTEMPTING TO DESTROY EVIDENCE.  BUT THE MINIMAL CONDITIONS
FOR THE APPLICATION OF THAT EXCEPTION ARE NOT PRESENT IN THIS CASE.  ON
THE UNCONTRADICTED RECORD, NOT ONLY WERE THE KERS COMPLETELY UNAWARE OF
THE OFFICERS' PRESENCE, BUT, AGAIN ON THE UNCONTRADICTED RECORD, THERE
WAS ABSOLUTELY NO ACTIVITY WITHIN THE APARTMENT TO JUSTIFY THE OFFICERS
IN THE BELIEF THAT ANYONE WITHIN WAS ATTEMPTING TO DESTROY EVIDENCE. 
PLAINLY ENOUGH, THE KERS LEFT THE MARIJUANA IN FULL VIEW ON TOP OF THE
SINK BECAUSE THEY WERE WHOLLY OBLIVIOUS THAT THE POLICE WERE ON THEIR
TRAIL.  MY BROTHER CLARK RECOGNIZES THAT THERE IS NO EVIDENCE WHATEVER
OF ACTIVITY IN THE APARTMENT, AND IS THUS FORCED TO FIND THE REQUISITE
SUPPORT FOR THIS ELEMENT OF THE EXCEPTION IN THE OFFICERS' TESTIMONY
THAT, IN THEIR EXPERIENCE IN THE INVESTIGATION OF NARCOTICS VIOLATIONS,
OTHER NARCOTICS SUSPECTS HAD RESPONDED TO POLICE ANNOUNCEMENTS BY
ATTEMPTING TO DESTROY EVIDENCE.  CLEARLY SUCH A BASIS FOR THE EXCEPTION
FAILS TO MEET THE REQUIREMENTS OF THE FOURTH AMENDMENT; IF POLICE
EXPERIENCE IN PURSUING OTHER NARCOTICS SUSPECTS JUSTIFIED AN
UNANNOUNCED POLICE INTRUSION INTO A HOME, THE FOURTH AMENDMENT WOULD
AFFORD NO PROTECTION AT ALL. 

THE RECOGNITION OF EXCEPTIONS TO GREAT PRINCIPLES ALWAYS CREATES, OF
COURSE, THE HAZARD THAT THE EXCEPTIONS WILL DEVOUR THE RULE.  IF MERE
POLICE EXPERIENCE THAT SOME OFFENDERS HAVE ATTEMPTED TO DESTROY
CONTRABAND JUSTIFIES UNANNOUNCED ENTRY IN ANY CASE, AND CURES THE TOTAL
ABSENCE OF EVIDENCE NOT ONLY OF AWARENESS OF THE OFFICERS' PRESENCE BUT
EVEN OF SUCH AN ATTEMPT IN THE PARTICULAR CASE, I PERCEIVE NO LOGICAL
BASIS FOR DISTINGUISHING UNANNOUNCED POLICE ENTRIES INTO HOMES TO MAKE
ARRESTS FOR ANY CRIME INVOLVING EVIDENCE OF A KIND WHICH POLICE
EXPERIENCE INDICATES MIGHT BE QUICKLY DESTROYED OR JETTISONED. 
MOREOVER, IF SUCH EXPERIENCE, WITHOUT MORE, COMPLETELY EXCUSES THE
FAILURE OF ARRESTING OFFICERS BEFORE ENTRY, AT ANY HOUR OF THE DAY OR
NIGHT, EITHER TO ANNOUNCE THEIR PURPOSE AT THE THRESHOLD OR TO
ASCERTAIN THAT THE OCCUPANT ALREADY KNOWS OF THEIR PRESENCE, THEN THERE
IS LIKEWISE NO LOGICAL GROUND FOR DISTINGUISHING BETWEEN THE STEALTHY
MANNER IN WHICH THE ENTRY IN THIS CASE WAS EFFECTED, AND THE MORE
VIOLENT MANNER USUALLY ASSOCIATED WITH TOTALITARIAN POLICE OF BREAKING
DOWN THE DOOR OR SMASHING THE LOCK.  (FN15) 

MY BROTHER CLARK CORRECTLY STATES THAT ONLY WHEN STATE LAW "IS NOT
VIOLATIVE OF THE FEDERAL CONSTITUTION" MAY WE DEFER TO STATE LAW IN
GAUGING THE VALIDITY OF AN ARREST UNDER THE FOURTH AMENDMENT.  SINCE
THE CALIFORNIA LAW OF ARREST HERE CALLED IN QUESTION PATENTLY VIOLATES
THE FOURTH AMENDMENT, THAT LAW CANNOT CONSTITUTIONALLY PROVIDE THE
BASIS FOR AFFIRMING THESE CONVICTIONS.  THIS IS NOT A CASE OF
CONFLICTING TESTIMONY PRO AND CON THE EXISTENCE OF THE ELEMENTS
REQUISITE FOR FINDING A BASIS FOR THE APPLICATION OF THE EXCEPTION.  I
AGREE THAT WE SHOULD ORDINARILY BE CONSTRAINED TO ACCEPT THE STATE FACT
FINDER'S RESOLUTION OF SUCH FACTUAL CONFLICTS.  HERE, HOWEVER, THE
FACTS ARE UNCONTRADICTED:  THE KERS WERE COMPLETELY OBLIVIOUS OF THE
PRESENCE OF THE OFFICERS AND WERE ENGAGED IN NO ACTIVITY OF ANY KIND
INDICATING THAT THEY WERE ATTEMPTING TO DESTROY NARCOTICS.  OUR DUTY
THEN IS ONLY TO DECIDE WHETHER THE OFFICERS' TESTIMONY - THAT IN THEIR
GENERAL EXPERIENCE NARCOTICS SUSPECTS DESTROY EVIDENCE WHEN FOREWARNED
OF THE OFFICERS' PRESENCE - SATISFIES THE CONSTITUTIONAL TEST FOR
APPLICATION OF THE EXCEPTION.  MANIFESTLY WE SHOULD HOLD THAT SUCH
TESTIMONY DOES NOT SATISFY THE CONSTITUTIONAL TEST.  THE SUBJECTIVE
JUDGMENT OF THE POLICE OFFICERS CANNOT CONSTITUTIONALLY BE A SUBSTITUTE
FOR WHAT HAS ALWAYS BEEN CONSIDERED A NECESSARILY OBJECTIVE INQUIRY,
(FN16) NAMELY, WHETHER CIRCUMSTANCES EXIST IN THE PARTICULAR CASE WHICH
ALLOW AN UNANNOUNCED POLICE ENTRY.  (FN17) 

WE HAVE NO OCCASION HERE TO DECIDE HOW MANY OF THE SITUATIONS IN
WHICH, BY THE EXERCISE OF OUR SUPERVISORY POWER OVER THE CONDUCT OF
FEDERAL OFFICERS, WE WOULD EXCLUDE EVIDENCE, ARE ALSO SITUATIONS WHICH
WOULD REQUIRE THE EXCLUSION OF EVIDENCE FROM STATE CRIMINAL PROCEEDINGS
UNDER THE CONSTITUTIONAL PRINCIPLES EXTENDED TO THE STATES BY MAPP. 
BUT WHERE THE CONDUCT EFFECTING AN ARREST SO CLEARLY TRANSGRESSES THOSE
RIGHTS GUARANTEED BY THE FOURTH AMENDMENT AS DOES THE CONDUCT WHICH
BROUGHT ABOUT THE ARREST OF THESE PETITIONERS, WE WOULD SURELY REVERSE
THE JUDGMENT IF THIS WERE A FEDERAL PROSECUTION INVOLVING FEDERAL
OFFICERS.  SINCE OUR DECISION IN MAPP HAS MADE THE GUARANTEES OF THE
FOURTEENTH AMENDMENT COEXTENSIVE WITH THOSE OF THE FOURTH WE SHOULD
PRONOUNCE PRECISELY THE SAME JUDGMENT UPON THE CONDUCT OF THESE STATE
OFFICERS.    FN1  HALE'S VIEW WAS REPRESENTATIVE:  "A MAN, THAT ARRESTS
UPON SUSPICION OF FELONY, MAY BREAK OPEN DOORS, IF THE PARTY REFUSE
UPON DEMAND TO OPEN THEM  ...  ."  1 HALE, PLEAS OF THE CROWN (1736),
583.  SEE GENERALLY MILLER V. UNITED STATES, 357 U.S. 301, 306-310;
ACCARINO V. UNITED STATES, 85 U.S. APP. D.C. 394, 398-402, 179 F.2D
456, 460-464; THOMAS, THE EXECUTION OF WARRANTS OF ARREST, (1962) CRIM.
L. REV. 520, 597, 601-604. 

FN2  COMPARE ALSO THE STATEMENT OF BAYLEY, J., IN BURDETT V. ABBOT,
14 EAST.  1, 162-163, 104 ENG. REP. 501, 563 (1811): 

"NOW IN EVERY BREACH OF THE PEACE THE PUBLIC ARE CONSIDERED AS
INTERESTED, AND THE EXECUTION OF PROCESS AGAINST THE OFFENDER IS THE
ASSERTION OF A PUBLIC RIGHT:  AND IN ALL SUCH CASES, I APPREHEND THAT
THE OFFICER HAS A RIGHT TO BREAK OPEN THE OUTER DOOR, PROVIDED THERE IS
A REQUEST OF ADMISSION FIRST MADE FOR THE PURPOSE, AND A DENIAL OF THE
PARTIES WHO ARE WITHIN." 

SEE ALSO RATCLIFFE V. BURTON, 3 BOS.  & PUL.  223, 127 ENG. REP. 123
(1802); KERBEY V. DENBY, 1 M.&W. 336, 150 ENG. REP. 463 (1836); CF.
PARK V. EVANS, HOB.  62, 80 ENG. REP. 211; PENTON V. BROWN, 1 KEBLE
698, 83 ENG. REP. 1193; PERCIVAL V. STAMP, 9 EX. 167, 156 ENG. REP. 71
(1853). 

FN3  SEE GENERALLY GATEWOOD V. UNITED STATES, 93 U.S. APP. D.C. 226,
229, 209 F.2D 789, 791; 1 BISHOP, NEW CRIMINAL PROCEDURE (2D ED. 1913),
SEC. 201; 1 VARON, SEARCHES, SEIZURES AND IMMUNITIES (1961), 399-401;
DAY AND BERKMAN, SEARCH AND SEIZURE AND THE EXCLUSIONARY RULE: A RE
EXAMINATION IN THE WAKE OF MAPP V. OHIO, 13 WEST.  RES.  L. REV. 56, 79
80 (1961). 

FN4  ALA. CODE, TIT. 15, SEC. 155; ARIZ. REV. STAT. ANN. SEC. 13
1411; DEERING'S CAL. PENAL CODE SEC. 844; FLA. STAT. ANN. SEC.
901.19(1); IDAHO CODE SEC. 19-611; BURNS' IND. ANN. STAT.  SEC. 9-1009;
IOWA CODE ANN. SEC. 755.9; KAN. GEN. STAT. SEC. 62-1819; KY. REV. STAT.
SEC. 70.078; DART'S LA. CRIM. CODE, ART. 72; MICH. STAT. ANN. SEC.
28.880; MINN. STAT. ANN. SEC. 629.34; MISS.  CODE SEC. 2471; MO. REV.
STAT. SEC. 544.200; MONT. REV. CODE SEC. 94-6011; NEB. REV.  STAT. SEC.
29-411; NEV. REV. STAT. SEC. 171.275; MCKINNEY'S N.Y. CRIM. CODE SEC.
178; N.C. GEN. STAT. SEC. 15-44; PAGE'S OHIO REV. CODE ANN. SEC.
2935.15; OKLA. STAT. ANN., TIT. 22, SEC. 194; ORE.  REV.  STAT. SEC.
133.320; S.C. CODE SEC. 53-198; S.D. CODE SEC. 34.1606; TENN. CODE ANN.
SEC. 40-807; UTAH CODE ANN. 77-13-12; WASH. REV. CODE SEC. 10.31.040;
WYO. COMP. STAT. SEC. 10-309. 

COMPARE CODE OF CRIM. PROC., AMERICAN LAW INSTITUTE, OFFICIAL DRAFT
(1930), SEC. 28: 

"RIGHT OF OFFICER TO BREAK INTO BUILDING.  AN OFFICER, IN ORDER TO
MAKE AN ARREST EITHER BY VIRTUE OF A WARRANT, OR WHEN AUTHORIZED TO
MAKE SUCH ARREST FOR A FELONY WITHOUT A WARRANT, AS PROVIDED IN SECTION
21, MAY BREAK OPEN A DOOR OR WINDOW OF ANY BUILDING IN WHICH THE PERSON
TO BE ARRESTED IS OR IS REASONABLY BELIEVED TO BE, IF HE IS REFUSED
ADMITTANCE AFTER HE HAS ANNOUNCED HIS AUTHORITY AND PURPOSE." 

FN5  SEE ALSO HENRY V. UNITED STATES, 361 U.S. 98, 100-101; LASSON,
THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED
STATES CONSTITUTION (1937), C. II; BARRETT, PERSONAL RIGHTS, PROPERTY
RIGHTS, AND THE FOURTH AMENDMENT, 1960 SUPREME COURT REVIEW 46, 70-71;
COMMENT, SEARCH AND SEIZURE IN THE SUPREME COURT:  SHADOWS ON THE
FOURTH AMENDMENT, 28 U. OF CHI.  L. REV. 664, 678-679 (1961).  COMPARE
EAST-INDIA CO. V. SKINNER, COMB.  342, 90 ENG. REP. 516. 

FN6  LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO
THE UNITED STATES CONSTITUTION (1937), 54. 

FN7  IN THESE TWO RESPECTS, THE PRACTICE OF UNANNOUNCED POLICE
ENTRIES BY NIGHT IS ALSO CONSIDERABLY MORE OFFENSIVE TO THE RIGHTS
PROTECTED BY THE FOURTH AMENDMENT THAN THE USE OF HEALTH-INSPECTION AND
OTHER ADMINISTRATIVE POWERS OF ENTRY, CONCERNING THE CONSTITUTIONALITY
OF WHICH THIS COURT HAS DIVIDED SHARPLY, FRANK V. MARYLAND, SUPRA; OHIO
EX REL. EATON V. PRICE, 364 U.S. 263.  SINCE MY BROTHER CLARK DOES NOT
RELY UPON EITHER OF THOSE DECISIONS, I HAVE NO OCCASION TO DISCUSS
FURTHER THE APPLICABILITY OF EITHER TO THE CASE AT BAR.  FOR FURTHER
CONSIDERATION OF PROBLEMS RAISED BY THOSE CASES, SEE GENERALLY, WATERS,
RIGHTS OF ENTRY IN ADMINISTRATIVE OFFICERS, 27 U. OF CHI.  L. REV. 79
(1959); COMMENT, STATE HEALTH INSPECTIONS AND "UNREASONABLE SEARCH":
THE FRANK EXCLUSION OF CIVIL SEARCHES, 44 MINN. L. REV. 513 (1960). 

FN8  IT IS NOT CLEAR WHETHER THE ENGLISH LAW EVER RECOGNIZED SUCH AN
EXCEPTION TO THE REQUIREMENT OF NOTICE OR AWARENESS.  SEE, E.G., GENNER
V. SPARKS, 6 MOD. 173, 87 ENG. REP.  928.  IT IS STATED IN AN ENGLISH
ANNOTATOR'S NOTE TO SEMAYNE'S CASE, SUPRA, THAT "IF A MAN BEING LEGALLY
ARRESTED, ESCAPETH FROM THE OFFICER, AND TAKETH SHELTER THOUGH IN HIS
OWN HOUSE, THE OFFICER MAY UPON FRESH SUIT BREAK OPEN DOORS IN ORDER TO
RETAKE HIM, HAVING FIRST GIVEN DUE NOTICE OF HIS BUSINESS AND DEMANDED
ADMISSION, AND BEEN REFUSED."  77 ENG. REP., AT 196.  THE VIEWS OF
OTHER COMMENTATORS ARE AMBIGUOUS ON THIS POINT.  SEE, E.G., 2 HAWKINS,
PLEAS OF THE CROWN (6TH ED. 1787), C. 14, SEC. 8.  BLACKSTONE'S VIEW
WAS THAT "IN CASE OF FELONY ACTUALLY COMMITTED, OR A DANGEROUS
WOUNDING, WHEREBY FELONY IS LIKE TO ENSUE  ...  A CONSTABLE MAY UPON
PROBABLE SUSPICION ARREST THE FELON; AND FOR THAT PURPOSE IS AUTHORIZED
(AS UPON A JUSTICE'S WARRANT) TO BREAK OPEN DOORS, AND EVEN TO KILL THE
FELON IF HE CANNOT OTHERWISE BE TAKEN  ...  ."  4 COMMENTARIES 292. 

FN9  SEE PROFESSOR WILGUS' COMMENT:  "BEFORE DOORS ARE BROKEN, THERE
MUST BE A NECESSITY FOR SO DOING, AND NOTICE OF THE AUTHORITY AND
PURPOSE TO MAKE THE ARREST MUST BE GIVEN AND A DEMAND AND REFUSAL OF
ADMISSION MUST BE MADE, UNLESS THIS IS ALREADY UNDERSTOOD, OR THE PERIL
WOULD BE INCREASED."  WILGUS, ARREST WITHOUT A WARRANT, 22 MICH. L.
REV. 541, 798, 802 (1924).  CF. ACCARINO V. UNITED STATES, 85 U.S. APP.
D.C. 394, 398-402, 179 F.2D 456, 460-464. 

COMPARE LORD MANSFIELD'S STATEMENT, IN 1774, OF THE RATIONALE FOR THE
REQUIREMENT OF ANNOUNCEMENT AND DEMAND FOR ADMISSION:  "THE GROUND OF
IT IS THIS; THAT OTHERWISE THE CONSEQUENCES WOULD BE FATAL:  FOR IT
WOULD LEAVE THE FAMILY WITHIN, NAKED AND EXPOSED TO THIEVES AND
ROBBERS.  IT IS MUCH BETTER THEREFORE, SAYS THE LAW, THAT YOU SHOULD
WAIT FOR ANOTHER OPPORTUNITY, THAN DO AN ACT OF VIOLENCE, WHICH MAY
PROBABLY BE ATTENDED WITH SUCH DANGEROUS CONSEQUENCES."  LEE V. GANSEL,
1 COWP.  1, 6-7, 98 ENG. REP. 935, 938. 

FN10  THE COMMENT OF ROOKE, J., IN RATCLIFFE V. BURTON, 3 BOS.  &
PUL.  223, 230, 127 ENG. REP. 123, 127 (1802), IS RELEVANT HERE:  "WHAT
A PRIVILEGE WILL BE ALLOWED TO SHERIFFS' OFFICERS IF THEY ARE PERMITTED
TO EFFECT THEIR SEARCH BY VIOLENCE, WITHOUT MAKING THAT DEMAND WHICH
POSSIBLY WILL BE COMPLIED WITH, AND CONSEQUENTLY VIOLENCE BE RENDERED
UNNECESSARY]"  THIS VIEW OF THE REQUIREMENT OF NOTICE OR AWARENESS HAS
ITS PARALLEL IN THE HISTORIC ENGLISH REQUIREMENT THAT AN ARRESTING
OFFICER MUST GIVE NOTICE OF HIS AUTHORITY AND PURPOSE TO ONE WHOM HE IS
ABOUT TO ARREST.  IN THE ABSENCE OF SUCH NOTICE, UNLESS THE PERSON
BEING ARRESTED ALREADY KNEW OF THE OFFICER'S AUTHORITY AND MISSION, HE
WAS JUSTIFIED IN RESISTING BY FORCE, AND MIGHT NOT BE CHARGED WITH AN
ADDITIONAL CRIME IF INJURY TO THE OFFICER RESULTED.  THE ORIGIN OF THIS
DOCTRINE APPEARS TO BE MACKALLEY'S CASE, 9 CO. REP. 65B, 69A, 77 ENG.
REP. 828, 835.  SEE ALSO REX V. GEORGE, (1935) 2 D.L.R. 516 (B.C. CT.
APP.); REGINA V. BEAUDETTE, 118 CAN.  CRIM.  CASES 295 (ONT.  CT.
APP.).  COMPARE, E.G., PEOPLE V. POTTER, 144 CAL. APP. 2D 350, 300 P.2D
889, IN WHICH NONCOMPLIANCE WITH SEC. 844 WAS EXCUSED BECAUSE THE
DEFENDANT WAS KNOWN TO HAVE BEEN CONVICTED OF THREE PREVIOUS ROBBERIES
AND WAS SUSPECTED OF A FOURTH - THOUGH IN FACT, UPON ENTERING HIS HOTEL
ROOM UNANNOUNCED AND BY MEANS OF A KEY OBTAINED FROM THE MANAGER, THE
OFFICERS FOUND THE DEFENDANT IN BED, WITH THE LIGHTS OFF, AND UNARMED. 
THE ENTRY OCCURRED AFTER MIDNIGHT. 

FN11  THE IMPORTANCE OF THIS CONSIDERATION WAS APTLY EXPRESSED LONG
AGO BY HEATH, J., IN RATCLIFFE V. BURTON, 3 BOS.  & PUL.  223, 230, 127
ENG. REP. 123, 126-127 (1802): 

"THE LAW OF ENGLAND, WHICH IS FOUNDED ON REASON, NEVER AUTHORISES
SUCH OUTRAGEOUS ACTS AS THE BREAKING OPEN EVERY DOOR AND LOCK IN A
MAN'S HOUSE WITHOUT ANY DECLARATION OF THE AUTHORITY UNDER WHICH IT IS
DONE.  SUCH CONDUCT MUST TEND TO CREATE FEAR AND DISMAY, AND BREACHES
OF THE PEACE BY PROVOKING RESISTANCE.  THIS DOCTRINE WOULD NOT ONLY BE
ATTENDED WITH GREAT MISCHIEF TO THE PERSONS AGAINST WHOM PROCESS IS
ISSUED, BUT TO OTHER PERSONS ALSO, SINCE IT MUST EQUALLY HOLD GOOD IN
CASES OF PROCESS UPON ESCAPE, WHERE THE PARTY HAS TAKEN REFUGE IN THE
HOUSE OF A STRANGER.  SHALL IT BE SAID THAT IN SUCH CASE THE OFFICER
MAY BREAK OPEN THE OUTER DOOR OF A STRANGER'S HOUSE WITHOUT DECLARING
THE AUTHORITY UNDER WHICH HE ACTS, OR MAKING ANY DEMAND OF ADMITTANCE? 
NO ENTRY FROM THE BOOKS OF PLEADING HAS BEEN CITED IN SUPPORT OF THIS
JUSTIFICATION, AND SEMAYNE'S CASE IS A DIRECT AUTHORITY AGAINST IT." 

FN12  SEE ALSO MCDONALD V. UNITED STATES, 335 U.S. 451, 460-461
(CONCURRING OPINION) FOR MR. JUSTICE JACKSON'S COMMENT:  "MANY
HOMEOWNERS IN THIS CRIME-BESET CITY DOUBTLESS ARE ARMED.  WHEN A WOMAN
SEES A STRANGE MAN, IN PLAIN CLOTHES, PRYING UP HER BEDROOM WINDOW AND
CLIMBING IN, HER NATURAL IMPULSE WOULD BE TO SHOOT." 

FN13  SEE, E.G., KAMISAR, PUBLIC SAFETY V. INDIVIDUAL LIBERTIES:
SOME "FACTS" AND "THEORIES," 53 J. CRIM. L., CRIMINOLOGY AND POLICE
SCIENCE 171, 188-190 (1962); ROGGE, BOOK REVIEW, 76 HARV. L. REV. 1516,
1522-1523 (1963). 

FN14  COMPARE JUSTICE TRAYNOR'S RECENT COMMENT: 

"NEVERTHELESS THE UNITED STATES SUPREME COURT STILL CONFRONTS A
SPECIAL NEW RESPONSIBILITY OF ITS OWN.  SOONER OR LATER IT MUST
ESTABLISH GROUND RULES OF UNREASONABLENESS TO COUNTER WHATEVER LOCAL
PRESSURES THERE MIGHT BE TO SPARE THE EVIDENCE THAT WOULD SPOIL THE
EXCLUSIONARY RULE.  ITS RESPONSIBILITY THUS TO EXERCISE A RESTRAINING
INFLUENCE LOOMS AS A HEAVY ONE.  IT IS NO MEAN RISK TO FORMULATE
FARSIGHTED CONSTITUTIONAL STANDARDS OF WHAT IS UNREASONABLE THAT LEND
THEMSELVES READILY TO NATION-WIDE APPLICATION."  TRAYNOR, MAPP V. OHIO
AT LARGE IN THE FIFTY STATES, 1962 DUKE L.J. 319, 328. 

FN15  THE PROBLEMS RAISED BY THIS CASE ARE CERTAINLY NOT NOVEL IN THE
HISTORY OF LAW ENFORCEMENT.  ONE OF THE VERY EARLIEST CASES IN THIS
FIELD, DECIDED MORE THAN THREE CENTURIES AGO, INVOLVED FACTS STRIKINGLY
SIMILAR TO THOSE OF THE INSTANT CASE.  THE CASE OF WATERHOUSE V.
SALTMARSH, HOB.  263, 80 ENG. REP. 409, AROSE OUT OF THE SERVICE BY A
SHERIFF AND SEVERAL BAILIFFS OF EXECUTION UPON A BANKRUPT.  THESE
OFFICERS, HAVING ENTERED THE OUTER DOOR OF THE HOUSE BY MEANS NOT
DESCRIBED, "'RAN UP TO THE CHAMBER, WHERE THE PLAINTIFF AND HIS WIFE
WERE IN BED AND THE DOORS LOCKT, AND KNOCKING A LITTLE, WITHOUT TELLING
WHAT THEY WERE, OR WHEREFORE THEY CAME, BRAKE OPEN THE DOOR AND TOOK
HIM ...  .'"  THE SHERIFF WAS FINED THE SUBSTANTIAL SUM OF 200 POUNDS -
FOR WHAT THE COURT LATER DESCRIBED IN A COLLATERAL PROCEEDING AS "THE
UNNECESSARY OUTRAGE AND TERROR OF THIS ARREST, AND FOR NOT SIGNIFYING
THAT HE WAS SHERIFF, THAT THE DOOR MIGHT HAVE BEEN OPENED WITHOUT
VIOLENCE  ...  ."  HOB., AT 264, 80 ENG. REP., AT 409.  COMPARE ANOTHER
EARLY CASE INVOLVING SIMILAR PROBLEMS, PARK V. EVANS, HOB.  62, 80 ENG.
REP. 211, IN WHICH THE STAR CHAMBER HELD UNLAWFUL AN ENTRY EFFECTED BY
FORCE AFTER THE ENTERING OFFICERS HAD KNOCKED BUT FAILED TO IDENTIFY
THEIR AUTHORITY OR PURPOSE.  THE STAR CHAMBER CONCLUDED THAT "THE
OPENING OF THE DOOR WAS OCCASIONED BY THEM BY CRAFT, AND THEN USED TO
THE VIOLENCE, WHICH THEY INTENDED." 

FN16  ANY DOUBT CONCERNING THE SCOPE OF THE CALIFORNIA TEST WHICH MAY
HAVE SURVIVED PEOPLE V. MADDOX, 46 CAL. 2D 301, 294 P.2D 6, MUST HAVE
BEEN REMOVED BY THE LATER CASE OF PEOPLE V. HAMMOND, 54 CAL. 2D 846,
854-855, 357 P.2D 289, 294: 

"WHEN THERE IS REASONABLE CAUSE TO MAKE AN ARREST, AND THE FACTS
KNOWN TO THE ARRESTING OFFICER BEFORE HIS ENTRY ARE NOT INCONSISTENT
WITH A GOOD FAITH BELIEF ON HIS PART THAT COMPLIANCE WITH THE FORMAL
REQUIREMENTS OF  ...  SECTION 844 IS EXCUSED, A FAILURE TO COMPLY
THEREWITH DOES NOT INVALIDATE THE SEARCH AND SEIZURE MADE AS AN
INCIDENT TO THE ENSUING ARREST." 

FN17  I THINK IT IS UNFORTUNATE THAT THIS COURT ACCEPTS THE JUDGMENT
OF THE INTERMEDIATE CALIFORNIA APPELLATE COURT ON A CRUCIAL QUESTION OF
CALIFORNIA LAW - FOR IT IS BY NO MEANS CERTAIN THAT THE SUPREME COURT
OF CALIFORNIA, THE FINAL ARBITER OF QUESTIONS OF CALIFORNIA LAW, WOULD
HAVE CONDONED THE WILLINGNESS OF THE DISTRICT COURT OF APPEAL TO EXCUSE
NONCOMPLIANCE WITH THE CALIFORNIA STATUTE UNDER THE FACTS OF THIS
CASE.  FOR THE VIEW OF THE CALIFORNIA SUPREME COURT ON THE SCOPE OF THE
EXCEPTION UNDER SEC. 844, SEE, E.G., PEOPLE V. MARTIN, 45 CAL. 2D 755,
290 P.2D 855; PEOPLE V. CARSWELL, 51 CAL. 2D 602, 335 P.2D 99; PEOPLE
V. HAMMOND, 54 CAL. 2D 846, 357 P.2D 289. 

AN EXAMINATION OF THE CALIFORNIA DECISIONS WHICH HAVE EXCUSED
NONCOMPLIANCE WITH SEC. 844 REVEALS THE NARROW SCOPE OF THE EXCEPTIONS
HERETOFORE RECOGNIZED - CONFINED FOR THE MOST PART TO CASES IN WHICH
OFFICERS ENTERED IN RESPONSE TO CRIES OF A VICTIM APPARENTLY IN
IMMINENT DANGER, E.G., PEOPLE V. ROBERTS, 47 CAL. 2D 374, 303 P.2D 721;
OR IN WHICH THEY FIRST KNOCKED AT THE DOOR, OR KNEW THEY HAD BEEN SEEN
AT THE DOOR, AND THEN ACTUALLY HEARD OR OBSERVED DESTRUCTION OF
EVIDENCE OF THE VERY CRIME FOR WHICH THEY HAD COME TO ARREST THE
OCCUPANTS, SEE, E.G., PEOPLE V. MOORE, 140 CAL. APP. 2D 870, 295 P.2D
969; PEOPLE V. STEINBERG, 148 CAL. APP. 2D 855, 307 P.2D 634; PEOPLE V.
WILLIAMS, 175 CAL. APP. 2D 774, 1 CAL. RPTR.  44; PEOPLE V. FISHER, 184
CAL. APP. 2D 308, 7 CAL. RPTR.  461.  SEE GENERALLY, FOR SUMMARY AND
DISCUSSION OF CALIFORNIA CASES INVOLVING VARIOUS GROUNDS FOR
NONCOMPLIANCE WITH SEC. 844, FRICKE, CALIFORNIA CRIMINAL EVIDENCE (5TH
ED. 1960), 432-433; COMMENT, TWO YEARS WITH THE CAHAN RULE, 9 STAN.  L.
REV. 515, 528-529 (1957). 
..END :









BRAUNSTEIN V. COMMISSIONER OF INTERNAL REVENUE 374 U.S. 65 


NO. 476.  ARGUED APRIL 29, 1963 - DECIDED JUNE 10, 1963 - 305 F.2D 949,
AFFIRMED. 


IN 1948, THREE TAXPAYERS RECEIVED A COMMITMENT FROM THE FEDERAL
HOUSING ADMINISTRATION TO INSURE LOANS FOR THE CONSTRUCTION OF A
MULTIPLE-DWELLING APARTMENT PROJECT.  TWO CORPORATIONS WERE FORMED TO
CARRY OUT THE PROJECT, AND EACH OF THE THREE TAXPAYERS WAS ISSUED ONE
THIRD OF THE STOCK IN EACH CORPORATION.  AFTER THE COSTS OF THE
CONSTRUCTION HAD BEEN PAID, EACH OF THE CORPORATIONS HAD AN UNUSED
AMOUNT OF MORTGAGE LOAN FUNDS REMAINING, AND IN 1950 THE TAXPAYERS SOLD
THEIR STOCK AT A PROFIT, RECEIVING AS PART OF THE SALE TRANSACTION
DISTRIBUTIONS FROM THE CORPORATIONS WHICH INCLUDED THE UNUSED FUNDS. 
HELD:  UNDER SEC. 117(M) OF THE INTERNAL REVENUE CODE OF 1939, THE
RESULTING GAINS TO THE TAXPAYERS MUST BE TREATED AS ORDINARY INCOME,
INSTEAD OF LONG-TERM CAPITAL GAINS, SINCE THE CORPORATIONS WERE
"COLLAPSIBLE" WITHIN THE MEANING OF THAT SECTION.  PP. 65-73. 

BRAUNSTEIN ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE APPLICABILITY OF THE "COLLAPSIBLE CORPORATION"
PROVISIONS OF THE FEDERAL INCOME TAX LAWS WHICH, DURING THE PERIOD
RELEVANT HERE, WERE SET FORTH IN SEC. 117(M) OF THE INTERNAL REVENUE
CODE OF 1939.  (FN1)  THESE PROVISIONS REQUIRE THAT UNDER CERTAIN
CIRCUMSTANCES, GAIN FROM THE SALE OF STOCK WHICH WOULD OTHERWISE BE
CONSIDERED AS LONG-TERM CAPITAL GAIN, AND ACCORDINGLY TAXED AT A
MAXIMUM RATE OF 25%, MUST BE REPORTED AS ORDINARY INCOME. 

THE THREE TAXPAYERS WHO ARE PETITIONERS HERE BECAME ASSOCIATED IN
1938 AND HAVE SINCE PARTICIPATED IN A NUMBER OF CONSTRUCTION PROJECTS,
USUALLY THROUGH CORPORATIONS IN WHICH THE STOCK WAS EQUALLY DIVIDED. 
(FN2)  IN 1948 THE PETITIONERS RECEIVED A COMMITMENT FROM THE FEDERAL
HOUSING ADMINISTRATION TO INSURE LOANS FOR THE CONSTRUCTION OF A
MULTIPLE-DWELLING APARTMENT PROJECT IN QUEENS COUNTY, NEW YORK.  TWO
CORPORATIONS WERE FORMED TO CARRY OUT THIS PROJECT, AND EACH PETITIONER
WAS ISSUED ONE-THIRD OF THE STOCK IN EACH CORPORATION.  AFTER THE COSTS
OF CONSTRUCTION HAD BEEN PAID, THE CORPORATIONS EACH HAD AN UNUSED
AMOUNT OF MORTGAGE LOAN FUNDS REMAINING, AND IN 1950 THE PETITIONERS
SOLD THEIR STOCK AT A PROFIT, RECEIVING AS PART OF THE SALE TRANSACTION
DISTRIBUTIONS FROM THE CORPORATIONS WHICH INCLUDED THE UNUSED FUNDS. 
THE PETITIONERS REPORTED THE EXCESS OF THE AMOUNTS RECEIVED OVER THEIR
BASES IN THE STOCK AS LONG-TERM CAPITAL GAINS OF $313,854.17 EACH. 
(FN3) 

THE COMMISSIONER ASSERTED A DEFICIENCY, TREATING THE GAIN AS ORDINARY
INCOME ON THE GROUND THAT THE CORPORATIONS WERE "COLLAPSIBLE" WITHIN
THE MEANING OF SEC. 117(M).  THE TAX COURT SUSTAINED THE COMMISSIONER,
36 T.C. 22, AND THE COURT OF APPEALS AFFIRMED THE TAX COURT, 305 F.2D
949, HOLDING THAT (1) THE TAXPAYERS HAD THE REQUISITE "VIEW" DURING
CONSTRUCTION OF THE PROPERTY (SEE NOTE 1, SUPRA); (2) MORE THAN 70% OF
THE GAIN REALIZED BY THE TAXPAYERS WAS ATTRIBUTABLE TO THE CONSTRUCTED
PROPERTY (ID.); AND (3) SEC. 117(M) APPLIES EVEN IF THE CONSTRUCTED
BUILDINGS WOULD HAVE PRODUCED CAPITAL GAIN ON A SALE BY THE TAXPAYERS
HAD NO CORPORATIONS BEEN FORMED.  THIS LAST HOLDING WAS IN RESPONSE TO
AN ARGUMENT BY THE TAXPAYERS BASED ON A THEORY SIMILAR TO THAT ADOPTED
BY THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN UNITED STATES V. IVEY,
294 F.2D 799.  IN VIEW OF THE CONFLICT BETWEEN THE DECISION BELOW AND
THAT IN IVEY ON THIS POINT, WE GRANTED CERTIORARI, 371 U.S. 933,
STATING THAT THE GRANT WAS LIMITED TO THE FOLLOWING QUESTION: 

"WHETHER SECTION 117(M) OF THE INTERNAL REVENUE CODE OF 1939, WHICH
PROVIDES THAT GAIN 'FROM THE SALE OR EXCHANGE  ...  OF STOCK OF A
COLLAPSIBLE CORPORATION' IS TAXABLE AS ORDINARY INCOME RATHER THAN
CAPITAL GAIN, IS INAPPLICABLE IN CIRCUMSTANCES WHERE THE STOCKHOLDERS
WOULD HAVE BEEN ENTITLED TO CAPITAL GAINS TREATMENT HAD THEY CONDUCTED
THE ENTERPRISE IN THEIR INDIVIDUAL CAPACITIES WITHOUT UTILIZING A
CORPORATION." 

BRIEFLY SUMMARIZED, PETITIONERS' ARGUMENT RUNS AS FOLLOWS:  AS THE
LEGISLATIVE HISTORY SHOWS, THE COLLAPSIBLE CORPORATION PROVISIONS OF
THE CODE WERE DESIGNED TO CLOSE A LOOPHOLE THROUGH WHICH SOME PERSONS
HAD BEEN ABLE TO CONVERT ORDINARY INCOME INTO LONG-TERM CAPITAL GAIN BY
USE OF THE CORPORATE FORM.  FOR EXAMPLE, IN THE CASE OF AN INDIVIDUAL
WHO CONSTRUCTED A PROPERTY WHICH HE HELD PRIMARILY FOR SALE TO
CUSTOMERS IN THE ORDINARY COURSE OF HIS TRADE OR BUSINESS, ANY GAIN
FROM THE SALE OF THE ASSET WOULD BE ORDINARY INCOME; (FN4) BUT IF THAT
SAME INDIVIDUAL WERE TO FORM A CORPORATION TO CONSTRUCT THE PROPERTY,
INTENDING TO SELL HIS STOCK ON THE COMPLETION OF CONSTRUCTION, IT WAS
AT LEAST ARGUABLE PRIOR TO THE ENACTMENT OF SEC. 117(M) THAT THE
PROCEEDS OF THE ULTIMATE SALE OF THE STOCK WERE ENTITLED TO CAPITAL
GAINS TREATMENT.  IT WAS THIS AND SIMILAR DEVICES THAT SEC. 117(M) WAS
DESIGNED TO FRUSTRATE, BUT IT WAS NOT INTENDED TO HAVE THE INEQUITABLE
EFFECT OF CONVERTING INTO ORDINARY INCOME WHAT WOULD PROPERLY HAVE BEEN
A CAPITAL GAIN PRIOR TO ITS ENACTMENT EVEN IN THE ABSENCE OF ANY
CORPORATE FORM.  THUS, IT IS ARGUED, THE PHRASE "GAIN ATTRIBUTABLE TO
SUCH PROPERTY," AS USED IN SEC. 117(M), MUST APPLY ONLY TO PROFIT THAT
WOULD HAVE CONSTITUTED ORDINARY INCOME IF A CORPORATION HAD NOT BEEN
UTILIZED, FOR ONLY IN SUCH CASES IS THE CORPORATION MADE TO SERVE AS A
DEVICE FOR TAX AVOIDANCE.  IN THE PRESENT CASE, NEITHER THE CORPORATION
NOR THE INDIVIDUAL PETITIONERS WERE IN THE TRADE OR BUSINESS OF SELLING
APARTMENT BUILDINGS, AND THUS THE CORPORATIONS WERE NOT USED TO CONVERT
ORDINARY INCOME INTO CAPITAL GAIN AND THE PROVISIONS OF SEC. 117(M) ARE
INAPPLICABLE.  (FN5) 

WE HAVE CONCLUDED THAT PETITIONERS' CONTENTIONS MUST BE REJECTED. 
THEIR ARGUMENT IS WHOLLY INCONSISTENT WITH THE PLAIN MEANING OF THE
LANGUAGE OF SEC. 117(M), AND WE FIND NOTHING IN THE PURPOSE OF THE
STATUTE, AS INDICATED BY ITS LEGISLATIVE HISTORY, TO WARRANT ANY
DEPARTURE FROM THAT MEANING IN THIS CASE. 

                                        I. 

AS TO THE LANGUAGE USED, SEC. 117(M) DEFINES A COLLAPSIBLE
CORPORATION AS EMBRACING ONE FORMED OR AVAILED OF PRINCIPALLY FOR THE
MANUFACTURE, CONSTRUCTION, OR PRODUCTION OF PROPERTY WITH A VIEW TO (1)
THE SALE OR EXCHANGE OF STOCK PRIOR TO THE REALIZATION BY THE
CORPORATION OF A SUBSTANTIAL PART OF THE NET INCOME FROM THE PROPERTY
AND (2) THE REALIZATION "OF GAIN ATTRIBUTABLE TO SUCH PROPERTY."   THE
YEAR "UNLESS MORE THAN 70 PER CENTUM OF SUCH GAIN IS ATTRIBUTABLE TO
THE PROPERTY SO MANUFACTURED, CONSTRUCTED, OR PRODUCED."  IF USED IN
THEIR ORDINARY MEANING, THE WORD "GAIN" IN THESE CONTEXTS SIMPLY REFERS
TO THE EXCESS OF PROCEEDS OVER COST OR BASIS, AND THE PHRASE
"ATTRIBUTABLE TO" MERELY CONFINES CONSIDERATION TO THAT GAIN CAUSED OR
GENERATED BY THE PROPERTY IN QUESTION.  WITH THESE DEFINITIONS, THE
APPLICATION TO CASES IN WHICH THE CORPORATION WAS AVAILED OF WITH A
VIEW TO PROFITING FROM THE CONSTRUCTED PROPERTY BY A SALE OR EXCHANGE
OF STOCK SOON AFTER COMPLETION OF CONSTRUCTION AND IN WHICH A
SUBSTANTIAL PART OF THE PROFIT FROM THE SALE OR EXCHANGE OF STOCK IN A
GIVEN YEAR WAS IN FACT GENERATED BY SUCH PROPERTY. 

THERE IS NOTHING IN THE LANGUAGE OR STRUCTURE OF THE SECTION TO
DEMAND OR EVEN JUSTIFY READING INTO THESE PROVISIONS THE ADDITIONAL
REQUIREMENT THAT THE TAXPAYER MUST IN FACT HAVE BEEN USING THE
CORPORATE FORM AS A DEVICE TO CONVERT ORDINARY INCOME INTO CAPITAL
GAIN.  IF A CORPORATION OWNS BUT ONE ASSET, AND THE SHAREHOLDERS SELL
THEIR STOCK AT A PROFIT RESULTING FROM AN INCREASE IN THE VALUE OF THE
ASSET, THEY HAVE "GAIN ATTRIBUTABLE TO" THAT ASSET IN THE NATURAL
MEANING OF THE PHRASE REGARDLESS OF THEIR DESIRE, OR LACK OF DESIRE, TO
AVOID THE BITE OF FEDERAL INCOME TAXES. 

                II. 

NOR IS THERE ANYTHING IN THE LEGISLATIVE HISTORY THAT WOULD LEAD US
TO DEPART FROM THE PLAIN MEANING OF THE STATUTE AS PETITIONERS WOULD
HAVE US DO.  THERE CAN OF COURSE BE NO QUESTION THAT THE PURPOSE OF
SEC. 117(M) WAS, AS PETITIONERS CONTEND, TO CLOSE A LOOPHOLE THAT
CONGRESS FEARED COULD BE USED TO CONVERT ORDINARY INCOME INTO CAPITAL
GAIN.  SEE H.R.  REP. NO. 2319, 81ST CONG., 2D SESS.; S. REP. NO. 2375,
81ST CONG., 2D SESS.  BUT THE CRUCIAL POINT FOR PRESENT PURPOSES IS
THAT THE METHOD CHOSEN TO CLOSE THIS LOOPHOLE WAS TO ESTABLISH A
CAREFULLY AND ELABORATELY DEFINED CATEGORY OF TRANSACTIONS IN WHICH
WHAT MIGHT OTHERWISE BE A CAPITAL GAIN WOULD HAVE TO BE TREATED AS
ORDINARY INCOME.  THERE IS NO INDICATION WHATEVER OF ANY CONGRESSIONAL
DESIRE TO HAVE THE COMMISSIONER OR THE COURTS MAKE A DETERMINATION IN
EACH CASE AS TO WHETHER THE USE OF THE CORPORATION WAS FOR TAX
AVOIDANCE.  INDEED, THE DRAWING OF CERTAIN ARBITRARY LINES NOT HERE
INVOLVED - SUCH AS MAKING THE SECTION INAPPLICABLE TO ANY SHAREHOLDER
OWNING 10% OR LESS OF THE STOCK OR TO ANY GAIN REALIZED MORE THAN THREE
YEARS AFTER THE COMPLETION OF CONSTRUCTION - TENDS TO REFUTE ANY SUCH
INDICATION.  IT IS OUR UNDERSTANDING, IN OTHER WORDS, THAT CONGRESS
INTENDED TO DEFINE WHAT IT BELIEVED TO BE A TAX AVOIDANCE DEVICE RATHER
THAN TO LEAVE THE PRESENCE OR ABSENCE OF TAX AVOIDANCE ELEMENTS FOR
DECISION ON A CASE-TO-CASE BASIS. 

WE ARE REINFORCED IN THIS CONCLUSION BY THE PRACTICAL DIFFICULTIES -
INDEED THE IMPOSSIBILITIES - OF CONSIDERING WITHOUT MORE LEGISLATIVE
GUIDANCE THAN IS FURNISHED BY SEC. 117(M) WHETHER THERE HAS IN FACT
BEEN "CONVERSION" OF ORDINARY INCOME INTO CAPITAL GAINS IN A PARTICULAR
CASE.  FOR EXAMPLE, IF WE WERE TO INQUIRE WHETHER OR NOT THE PROFIT
WOULD HAVE BEEN ORDINARY INCOME HAD AN ENTERPRISE BEEN INDIVIDUALLY
OWNED, WOULD WE TREAT EACH TAXPAYING SHAREHOLDER DIFFERENTLY AND LOOK
ONLY TO HIS TRADE OR BUSINESS OR WOULD WE CONSIDER THE MATTER IN TERMS
OF THE TRADE OR BUSINESS OF ANY OR AT LEAST A SUBSTANTIAL NUMBER OF THE
SHAREHOLDERS?  THERE IS SIMPLY NO BASIS IN THE STATUTE FOR A JUDICIAL
RESOLUTION OF THIS QUESTION, AND INDEED WHEN CONGRESS ADDRESSED ITSELF
TO THE PROBLEM IN 1958, IT APPROVED AN INTRICATE FORMULATION FALLING
BETWEEN THESE TWO EXTREMES.  (FN6) 

AS A FURTHER EXAMPLE, WHAT IF THE INDIVIDUAL IN QUESTION IS NOT
HIMSELF ENGAGED IN ANY TRADE OR BUSINESS BUT OWNS STOCK IN VARYING
AMOUNTS IN A NUMBER OF CORPORATE VENTURES OTHER THAN THE ONE BEFORE THE
COURT?  DO WE PIERCE EACH OF THE CORPORATE VEILS, REGARDLESS OF THE
EXTENT AND SHARE OF THE INDIVIDUAL'S INVESTMENT, AND CHARGE HIM WITH
BEING IN THE TRADE OR BUSINESS OF EACH SUCH CORPORATION?  AGAIN, THERE
IS NO BASIS FOR A RATIONAL JUDICIAL ANSWER; THE JUDGMENT IS ESSENTIALLY
A LEGISLATIVE ONE AND IN THE 1958 AMENDMENTS CONGRESS ENACTED A
SPECIFIC PROVISION, DESIGNED TO DEAL WITH THIS MATTER, THAT IS FAR TOO
COMPLEX TO BE SUMMARIZED HERE.  (FN7) 

THESE EXAMPLES SHOULD SUFFICE TO DEMONSTRATE THE POINT:  THE QUESTION
WHETHER THERE HAS IN FACT BEEN A "CONVERSION" OF ORDINARY INCOME IN A
PARTICULAR CASE IS FAR EASIER TO STATE THAN TO ANSWER, AND INVOLVES A
NUMBER OF THORNY ISSUES THAT MAY NOT APPEAR ON THE SURFACE.  (FN8)  WE
FIND NO BASIS IN EITHER THE TERMS OR THE HISTORY OF SEC. 117(M) FOR
CONCLUDING THAT CONGRESS INTENDED THE COMMISSIONER AND THE COURTS TO
ENTER THIS THICKET AND TO ARRIVE AT AD HOC DETERMINATIONS FOR EVERY
TAXPAYER.  ACCORDINGLY, THE JUDGMENTS BELOW MUST BE AFFIRMED. 

FN1  SECTION 117(M) WAS ADDED TO THE INTERNAL REVENUE CODE OF 1939 BY
THE REVENUE ACT OF 1950, SEC. 212(A), 64 STAT. 934.  THE SECTION WAS
AMENDED BY THE REVENUE ACT OF 1951, SEC.  326, 65 STAT. 502.  IT WAS
REENACTED WITHOUT SUBSTANTIAL CHANGE AS SEC. 341 OF THE INTERNAL
REVENUE CODE OF 1954, 68A STAT. 107, AND WAS AMENDED BY THE TECHNICAL
AMENDMENTS ACT OF 1958, SEC. 20(A), 72 STAT. 1615, AND BY THE ACT OF
OCTOBER 16, 1962, SEC. 13(F)(4), 76 STAT. 1035.  AS ORIGINALLY ENACTED,
AND DURING THE PERIOD RELEVANT HERE, IT PROVIDED: 

"(1)  TREATMENT OF GAIN TO SHAREHOLDERS.  - GAIN FROM THE SALE OR
EXCHANGE (WHETHER IN LIQUIDATION OR OTHERWISE) OF STOCK OF A
COLLAPSIBLE CORPORATION, TO THE EXTENT THAT IT WOULD BE CONSIDERED (BUT
FOR THE PROVISIONS OF THIS SUBSECTION) AS GAIN FROM THE SALE OR
EXCHANGE OF A CAPITAL ASSET HELD FOR MORE THAN 6 MONTHS, SHALL, EXCEPT
AS PROVIDED IN PARAGRAPH (3), BE CONSIDERED AS GAIN FROM THE SALE OR
EXCHANGE OF PROPERTY WHICH IS NOT A CAPITAL ASSET. 

"(2)  DEFINITIONS: 

"(A)  FOR THE PURPOSES OF THIS SUBSECTION, THE TERM 'COLLAPSIBLE
CORPORATION' MEANS A CORPORATION FORMED OR AVAILED OF PRINCIPALLY FOR
THE MANUFACTURE, CONSTRUCTION, OR PRODUCTION OF PROPERTY, OR FOR THE
HOLDING OF STOCK IN A CORPORATION SO FORMED OR AVAILED OF, WITH A VIEW
TO: 

"(I)  THE SALE OR EXCHANGE OF STOCK BY ITS SHAREHOLDERS (WHETHER IN
LIQUIDATION OR OTHERWISE), OR A DISTRIBUTION TO ITS SHAREHOLDERS, PRIOR
TO THE REALIZATION BY THE CORPORATION MANUFACTURING, CONSTRUCTING, OR
PRODUCING THE PROPERTY OF A SUBSTANTIAL PART OF THE NET INCOME TO BE
DERIVED FROM SUCH PROPERTY, AND: 

"(II)  THE REALIZATION BY SUCH SHAREHOLDERS OF GAIN ATTRIBUTABLE TO
SUCH PROPERTY. 

     *         *         *         *         * 

"(3)  LIMITATIONS ON APPLICATION OF SUBSECTION.  - IN THE CASE OF
GAIN REALIZED BY A SHAREHOLDER UPON HIS STOCK IN A COLLAPSIBLE
CORPORATION: 

"(A)  THIS SUBSECTION SHALL NOT APPLY UNLESS, AT ANY TIME AFTER THE
COMMENCEMENT OF THE MANUFACTURE, CONSTRUCTION, OR PRODUCTION OF THE
PROPERTY, SUCH SHAREHOLDER (I) OWNED (OR WAS CONSIDERED AS OWNING) MORE
THAN 10 PER CENTUM IN VALUE OF THE OUTSTANDING STOCK OF THE
CORPORATION, OR (II) OWNED STOCK WHICH WAS CONSIDERED AS OWNED AT SUCH
TIME BY ANOTHER SHAREHOLDER WHO THEN OWNED (OR WAS CONSIDERED AS
OWNING) MORE THAN 10 PER CENTUM IN VALUE OF THE OUTSTANDING STOCK OF
THE CORPORATION: 

"(B)  THIS SUBSECTION SHALL NOT APPLY TO THE GAIN RECOGNIZED DURING A
TAXABLE YEAR UNLESS MORE THAN 70 PER CENTUM OF SUCH GAIN IS
ATTRIBUTABLE TO THE PROPERTY SO MANUFACTURED, CONSTRUCTED, OR PRODUCED;
AND:    "(C)  THIS SUBSECTION SHALL NOT APPLY TO GAIN REALIZED AFTER
THE EXPIRATION OF THREE YEARS FOLLOWING THE COMPLETION OF SUCH
MANUFACTURE, CONSTRUCTION, OR PRODUCTION  ...  ." 

FN2  PETITIONERS BENJAMIN AND HARRY NEISLOSS ARE BUILDERS; PETITIONER
BRAUNSTEIN, AN ARCHITECT.  THEIR WIVES ARE PARTIES ONLY BY VIRTUE OF
THE FILING OF JOINT RETURNS. 

FN3  THE PARTIES HAVE AGREED THAT THE DISTRIBUTIONS FROM THE
CORPORATIONS AND THE AMOUNTS RECEIVED DIRECTLY FROM THE BUYERS OF THE
STOCK MAY BE CONSIDERED TOGETHER, AS IF THE ENTIRE AMOUNT HAD BEEN
RECEIVED FROM THE BUYERS.    FN4  INT. REV. CODE, 1939, SEC.
117(A)(1)(A). 

FN5  THE GOVERNMENT HAS ASSUMED FOR PURPOSES OF ITS ARGUMENT HERE,
BUT DOES NOT CONCEDE, THAT PETITIONERS WOULD HAVE BEEN ENTITLED TO
CAPITAL-GAINS TREATMENT HAD THEY CONDUCTED THE ENTERPRISE WITHOUT
UTILIZING A CORPORATION. 

FN6  INT. REV. CODE, 1954, SEC. 341(E), ADDED BY THE TECHNICAL
AMENDMENTS ACT OF 1958, SEC. 20(A), 72 STAT. 1615. 

FN7  INT. REV. CODE, 1954, SEC. 341(E)(1)(C). 

FN8  THE GOVERNMENT HAS EMPHASIZED IN ITS ARGUMENT HERE THAT THE
PRESENT CASE INVOLVES A PARTICULARLY "BLATANT" CONVERSION OF ORDINARY
INCOME BECAUSE BY CHARGING THE CORPORATIONS ONLY FOR THE OUT-OF-POCKET
COSTS OF CONSTRUCTION "PETITIONERS CONTRIBUTED THEIR SERVICES TO CREATE
A VALUABLE PROPERTY FOR THE CORPORATIONS AND THEN REALIZED UPON THAT
VALUE BY SELLING THEIR STOCK."  THUS, THE GOVERNMENT CONCLUDES, THE
PETITIONERS CLAIM AS CAPITAL GAIN "WHAT OUGHT TO HAVE BEEN (AND, IN AN
ARM'S-LENGTH TRANSACTION, WOULD HAVE BEEN) TAXED AS COMPENSATION FOR
SERVICES." 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :










DIVISION 1287, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY &
MOTOR COACH EMPLOYEES OF AMERICA V. MISSOURI 374 U.S. 74 


NO. 604.  ARGUED APRIL 24-25, 1963 - DECIDED JUNE 10, 1963 - 361 S.W.2D
33, REVERSED. 


PROCEEDING UNDER A MISSOURI STATUTE, THE GOVERNOR OF MISSOURI
PROCLAIMED THAT THE PUBLIC INTEREST, HEALTH AND WELFARE WERE
JEOPARDIZED BY A THREATENED STRIKE AGAINST A PUBLIC TRANSIT COMPANY IN
THE STATE AND ISSUED EXECUTIVE ORDERS TAKING POSSESSION OF THE COMPANY
AND DIRECTING THAT IT CONTINUE OPERATIONS.  HOWEVER, THE EMPLOYEES OF
THE COMPANY DID NOT BECOME EMPLOYEES OF THE STATE; THE STATE DID NOT
PAY THEIR WAGES NOR SUPERVISE THEIR WORK; THE PROPERTY OF THE COMPANY
WAS NOT TRANSFERRED TO THE STATE; AND THE STATE DID NOT PARTICIPATE IN
THE ACTUAL MANAGEMENT OF THE COMPANY.  PURSUANT TO THE STATUTE, A STATE
COURT ENJOINED THE STRIKE, AND THE SUPREME COURT OF MISSOURI AFFIRMED. 
AFTER AN APPEAL TO THIS COURT HAD BEEN INITIATED BY THE FILING OF A
JURISDICTIONAL STATEMENT, THE GOVERNOR ISSUED AN EXECUTIVE ORDER
TERMINATING HIS SEIZURE ORDER BUT RECITING THAT THE LABOR DISPUTE
"REMAINS UNRESOLVED."  HELD: 

1.  TERMINATION OF THE GOVERNOR'S SEIZURE ORDER DID NOT RENDER THE
CASE MOOT.  HARRIS V. BATTLE, 348 U.S. 803, AND OIL WORKERS UNIONS V.
MISSOURI, 361 U.S. 363, DISTINGUISHED.  PP. 77-78. 

2.  THE STATE STATUTE INVOLVED HERE IS IN CONFLICT WITH SEC. 7 OF THE
NATIONAL LABOR RELATIONS ACT, AND IT CANNOT STAND UNDER THE SUPREMACY
CLAUSE OF THE CONSTITUTION.  BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S.
383.  PP. 78-83. 

(A)  THE STATE'S ACTUAL INVOLVEMENT UNDER THE GOVERNOR'S SEIZURE
ORDER FELL FAR SHORT OF CREATING A STATE OWNED AND OPERATED UTILITY
WHOSE LABOR RELATIONS ARE BY DEFINITION EXCLUDED FROM THE COVERAGE OF
THE NATIONAL LABOR RELATIONS ACT.  P. 81. 

(B)  NEITHER THE DESIGNATION OF THE STATE STATUTE AS "EMERGENCY
LEGISLATION" NOR THE PURPORTED "SEIZURE" BY THE STATE COULD MAKE A
PEACEFUL STRIKE AGAINST A PUBLIC UTILITY UNLAWFUL IN DIRECT CONFLICT
WITH SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT, WHICH GUARANTEES THE
RIGHT TO STRIKE AGAINST A PUBLIC UTILITY, AS AGAINST ANY EMPLOYER
ENGAGED IN INTERSTATE COMMERCE.  PP. 81-82. 

DIVISION 1287, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY &
MOTOR COACH EMPLOYEES OF AMERICA ET AL. V. MISSOURI. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

OPINION OF THE COURT BY MR. JUSTICE STEWART, ANNOUNCED BY MR. JUSTICE
WHITE. 

THE APPELLANT UNION IS THE CERTIFIED REPRESENTATIVE OF A MAJORITY OF
THE EMPLOYEES OF KANSAS CITY TRANSIT, INC., A MISSOURI CORPORATION
WHICH OPERATES A PUBLIC TRANSIT BUSINESS IN KANSAS AND MISSOURI.  A
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE APPELLANT AND THE COMPANY
WAS DUE TO EXPIRE ON OCTOBER 31, 1961, AND IN AUGUST OF THAT YEAR,
AFTER APPROPRIATE NOTICES, THE PARTIES COMMENCED THE NEGOTIATION OF AN
AMENDED AGREEMENT.  AN IMPASSE IN THESE NEGOTIATIONS WAS REACHED, AND
IN EARLY NOVEMBER THE APPELLANT'S MEMBERS VOTED TO STRIKE.  THE STRIKE
WAS CALLED ON NOVEMBER 13. 

THE SAME DAY THE GOVERNOR OF MISSOURI, ACTING UNDER THE AUTHORITY OF
A STATE LAW KNOWN AS THE KING-THOMPSON ACT, (FN1) ISSUED A PROCLAMATION
THAT THE PUBLIC INTEREST, HEALTH AND WELFARE WERE JEOPARDIZED BY THE
THREATENED INTERRUPTION OF THE COMPANY'S OPERATIONS, AND BY AN
EXECUTIVE ORDER PURPORTED TO TAKE POSSESSION "OF THE PLANTS, EQUIPMENT,
AND ALL FACILITIES OF THE KANSAS CITY TRANSIT, INC., LOCATED IN THE
STATE OF MISSOURI, FOR THE USE AND OPERATION BY THE STATE OF MISSOURI
IN THE PUBLIC INTEREST."  A SECOND EXECUTIVE ORDER PROVIDED IN PART
THAT "ALL RULES AND REGULATIONS ...  GOVERNING THE INTERNAL MANAGEMENT
AND ORGANIZATION OF THE COMPANY, AND ITS DUTIES AND RESPONSIBILITIES,
SHALL REMAIN IN FORCE AND EFFECT THROUGHOUT THE TERM OF OPERATION BY
THE STATE OF MISSOURI." 

PURSUANT TO A PROVISION OF THE ACT WHICH MAKES UNLAWFUL ANY STRIKE OR
CONCERTED REFUSAL TO WORK AS A MEANS OF ENFORCING DEMANDS AGAINST THE
UTILITY OR THE STATE AFTER POSSESSION HAS BEEN TAKEN BY THE STATE, THE
STATE PETITIONED THE CIRCUIT COURT OF JACKSON COUNTY FOR AN INJUNCTION
ON NOVEMBER 15, 1961.  (FN2)  A TEMPORARY RESTRAINING ORDER WAS ISSUED
ON THAT DAY, AND THE STRIKE AND PICKETING WERE DISCONTINUED THAT
EVENING.  AFTER A TWO-DAY TRIAL, THE ORDER WAS CONTINUED IN EFFECT, AND
THE CIRCUIT COURT LATER ENTERED A PERMANENT INJUNCTION BARRING THE
CONTINUATION OF THE STRIKE "AGAINST THE STATE OF MISSOURI." 

ON APPEAL TO THE SUPREME COURT OF MISSOURI, THE APPELLANTS ARGUED
THAT THE KING-THOMPSON ACT IS IN CONFLICT WITH AND IS PRE-EMPTED BY
FEDERAL LABOR LEGISLATION, AND THAT IT ABRIDGES RIGHTS GUARANTEED BY
THE FIRST, THIRTEENTH, AND FOURTEENTH AMENDMENTS.  REAFFIRMING ITS
EARLIER DECISIONS IN CASES ARISING UNDER THE ACT, (FN3) THE SUPREME
COURT OF MISSOURI REJECTED THESE ARGUMENTS AND AFFIRMED THE ISSUANCE OF
THE INJUNCTION.  361 S.W.2D 33.  WE NOTED PROBABLE JURISDICTION.  371
U.S. 961. 

WE ARE MET AT THE THRESHOLD WITH THE CLAIM THAT THIS CONTROVERSY HAS
BECOME MOOT, AND THAT WE ARE ACCORDINGLY FORECLOSED FROM CONSIDERING
THE MERITS OF THE APPEAL.  THE BASIS FOR THIS CONTENTION IS THE FACT
THAT, AFTER THE APPELLANTS' JURISDICTIONAL STATEMENT WAS FILED IN THIS
COURT, THE GOVERNOR OF MISSOURI ISSUED AN EXECUTIVE ORDER WHICH,
ALTHOUGH RECITING THAT THE LABOR DISPUTE BETWEEN KANSAS CITY TRANSIT,
INC., AND THE APPELLANT UNION "REMAINS UNRESOLVED," NEVERTHELESS
TERMINATED THE OUTSTANDING SEIZURE ORDER, UPON THE FINDING THAT
"CONTINUED EXERCISE BY ME OF SUCH AUTHORITY IS NOT JUSTIFIED IN THE
CIRCUMSTANCES OF THE AFORESAID LABOR DISPUTE."  RELIANCE FOR THE CLAIM
OF MOOTNESS IS PLACED UPON THIS COURT'S DECISIONS IN HARRIS V. BATTLE,
348 U.S. 803, AND OIL WORKERS UNIONS V. MISSOURI, 361 U.S. 363.  IN THE
OIL WORKERS CASE THE COURT DECLINED TO CONSIDER CONSTITUTIONAL
CHALLENGES TO THE KING-THOMPSON ACT, AND IN THE HARRIS CASE DECLINED TO
RULE ON THE CONSTITUTIONALITY OF A SIMILAR VIRGINIA STATUTE, ON THE
GROUND THAT THE CONTROVERSIES HAD BECOME MOOT.  IN BOTH OF THOSE CASES,
HOWEVER, THE UNDERLYING LABOR DISPUTE HAD BEEN SETTLED AND NEW
COLLECTIVE BARGAINING AGREEMENTS CONCLUDED BY THE TIME THE LITIGATION
REACHED THIS COURT.  HERE, BY CONTRAST, THE LABOR DISPUTE REMAINS
UNRESOLVED.  THERE THUS EXISTS IN THE PRESENT CASE NOT MERELY THE
SPECULATIVE POSSIBILITY OF INVOCATION OF THE KING-THOMPSON ACT IN SOME
FUTURE LABOR DISPUTE, BUT THE PRESENCE OF AN EXISTING UNRESOLVED
DISPUTE WHICH CONTINUES SUBJECT TO ALL THE PROVISIONS OF THE ACT.  CF.
SOUTHERN PAC. TERMINAL CO. V. INTERSTATE COMMERCE COMM'N, 219 U.S. 498,
514-516; UNITED STATES V. W.T. GRANT CO., 345 U.S. 629, 632.  THE
SITUATION HERE IS THUS QUITE DIFFERENT FROM THAT PRESENTED IN THE
HARRIS AND OIL WORKERS UNIONS CASES, AND WE HOLD THAT THE MERITS OF
THIS CONTROVERSY ARE BEFORE US AND MUST BE DECIDED. 

THE KING-THOMPSON ACT DEFINES CERTAIN PUBLIC UTILITIES AS "LIFE
ESSENTIALS OF THE PEOPLE" AND DECLARES IT TO BE THE POLICY OF THE STATE
THAT "THE POSSIBILITY OF LABOR STRIFE IN UTILITIES OPERATING UNDER
GOVERNMENTAL FRANCHISE OR PERMIT OR UNDER GOVERNMENTAL OWNERSHIP AND
CONTROL IS A THREAT TO THE WELFARE AND HEALTH OF THE PEOPLE."  (FN4)
THE ACT IMPOSES REQUIREMENTS IN CONNECTION WITH THE DURATION AND
RENEWAL OF COLLECTIVE BARGAINING AGREEMENTS, (FN5) AND CREATES A STATE
BOARD OF MEDIATION AND PUBLIC HEARING PANELS WHOSE SERVICES ARE TO BE
INVOKED WHENEVER THE PARTIES CANNOT THEMSELVES AGREE UPON THE TERMS TO
BE INCLUDED IN THE NEW AGREEMENT.  (FN6)  AND WHERE, AS HERE, THE
RECOMMENDATIONS OF THESE AGENCIES ARE NOT ACCEPTED, AND THE CONTINUED
OPERATION OF THE UTILITY IS THREATENED AS A RESULT, THE GOVERNOR IS
EMPOWERED TO "TAKE IMMEDIATE POSSESSION OF" THE UTILITY "FOR THE USE
AND OPERATION BY THE STATE OF MISSOURI IN THE PUBLIC INTEREST."  (FN7) 

IN BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S. 383, THIS COURT HELD
THAT THE WISCONSIN PUBLIC UTILITY ANTI-STRIKE LAW, WHICH MADE IT A
MISDEMEANOR FOR PUBLIC UTILITY EMPLOYEES TO ENGAGE IN A STRIKE WHICH
WOULD CAUSE AN INTERRUPTION OF AN ESSENTIAL PUBLIC UTILITY SERVICE,
CONFLICTED WITH THE NATIONAL LABOR RELATIONS ACT AND WAS THEREFORE
INVALID UNDER THE SUPREMACY CLAUSE OF THE CONSTITUTION.  THE SUPREME
COURT OF MISSOURI IN THE PRESENT CASE REJECTED THE APPELLANTS' ARGUMENT
THAT THE WISCONSIN BOARD DECISION WAS DETERMINATIVE OF THE
UNCONSTITUTIONALITY OF THE MISSOURI STATUTE HERE IN ISSUE.  THE COURT
HELD THAT THE PROVISIONS OF THE KING-THOMPSON ACT DEALING WITH THE
MEDIATION BOARD AND PUBLIC HEARING PANELS WERE SEVERABLE FROM THE
REMAINDER OF THE STATUTE, AND REFUSED TO PASS ON ANY BUT THOSE
PROVISIONS WHICH AUTHORIZE THE SEIZURE AND THE ISSUANCE OF INJUNCTIONS
AGAINST STRIKES TAKING PLACE AFTER SEIZURE HAS BEEN IMPOSED.  THESE
PROVISIONS, THE COURT RULED, DO NOT - AS IN THE WISCONSIN BOARD CASE -
PROVIDE A COMPREHENSIVE LABOR CODE CONFLICTING WITH FEDERAL
LEGISLATION, BUT RATHER REPRESENT "STRICTLY EMERGENCY LEGISLATION"
DESIGNED SOLELY TO AUTHORIZE USE OF THE STATE'S POLICE POWER TO PROTECT
THE PUBLIC FROM THREATENED BREAKDOWNS IN VITAL COMMUNITY SERVICES. 
EMPHASIZING THAT THE COMPANY WAS NOT A PARTY TO THE INJUNCTION SUIT,
THE COURT CONCLUDED THAT, ALTHOUGH THE STATE DID NOT ACTIVELY
PARTICIPATE IN THE MANAGEMENT OF THE UTILITY'S OPERATIONS, THE
GOVERNOR'S EXECUTIVE ORDER HAD BEEN SUFFICIENT TO CONVERT THE STRIKE
INTO ONE AGAINST THE STATE, AND THAT AN INJUNCTION BARRING SUCH A
STRIKE IS THEREFORE NOT BARRED BY THE PROVISIONS OF FEDERAL LABOR
LEGISLATION.  361 S.W.2D, AT 44, 46, 48-52. 

WE DISAGREE.  NONE OF THE DISTINCTIONS DRAWN BY THE MISSOURI COURT
BETWEEN THE KING-THOMPSON ACT AND THE LEGISLATION INVOLVED IN WISCONSIN
BOARD SEEM TO US TO BE APPOSITE.  FIRST, WHATEVER THE STATUS OF THE
TITLE TO THE PROPERTIES OF KANSAS CITY TRANSIT, INC., ACQUIRED BY THE
STATE AS A RESULT OF THE GOVERNOR'S EXECUTIVE ORDER, THE RECORD SHOWS
THAT THE STATE'S INVOLVEMENT FELL FAR SHORT OF CREATING A STATE-OWNED
AND OPERATED UTILITY WHOSE LABOR RELATIONS ARE BY DEFINITION EXCLUDED
FROM THE COVERAGE OF THE NATIONAL LABOR RELATIONS ACT.  (FN8)  THE
EMPLOYEES OF THE COMPANY DID NOT BECOME EMPLOYEES OF MISSOURI. 
MISSOURI DID NOT PAY THEIR WAGES, AND DID NOT DIRECT OR SUPERVISE THEIR
DUTIES.  NO PROPERTY OF THE COMPANY WAS ACTUALLY CONVEYED, TRANSFERRED,
OR OTHERWISE TURNED OVER TO THE STATE.  MISSOURI DID NOT PARTICIPATE IN
ANY WAY IN THE ACTUAL MANAGEMENT OF THE COMPANY, AND THERE WAS NO
CHANGE OF ANY KIND IN THE CONDUCT OF THE COMPANY'S BUSINESS.  AS SUMMED
UP BY THE CHAIRMAN OF THE STATE MEDIATION BOARD:  "SO FAR AS I KNOW THE
COMPANY IS OPERATING NOW JUST AS IT WAS TWO WEEKS AGO BEFORE THE
STRIKE." 

SECONDLY, THE WISCONSIN BOARD CASE DECISIVELY REJECTED THE
PROPOSITION THAT A STATE ENACTMENT AFFECTING A PUBLIC UTILITY OPERATING
IN INTERSTATE COMMERCE COULD BE SAVED FROM A CHALLENGE BASED UPON A
DEMONSTRATED CONFLICT WITH THE STANDARDS EMBODIED IN FEDERAL LAW SIMPLY
BY DESIGNATING IT AS "EMERGENCY LEGISLATION."  THERE THE COURT SAID
THAT WHERE "THE STATE SEEKS TO DENY ENTIRELY A FEDERALLY GUARANTEED
RIGHT WHICH CONGRESS ITSELF RESTRICTED ONLY TO A LIMITED EXTENT IN CASE
OF NATIONAL EMERGENCIES, HOWEVER SERIOUS, IT IS MANIFEST THAT THE STATE
LEGISLATION IS IN CONFLICT WITH FEDERAL LAW."  340 U.S., AT 394. 

THE SHORT OF THE MATTER IS THAT MISSOURI, THROUGH THE FICTION OF
"SEIZURE" BY THE STATE, HAS MADE A PEACEFUL STRIKE AGAINST A PUBLIC
UTILITY UNLAWFUL, IN DIRECT CONFLICT WITH FEDERAL LEGISLATION WHICH
GUARANTEES THE RIGHT TO STRIKE AGAINST A PUBLIC UTILITY, AS AGAINST ANY
EMPLOYER ENGAGED IN INTERSTATE COMMERCE.  (FN9)  IN FORBIDDING A STRIKE
AGAINST AN EMPLOYER COVERED BY THE NATIONAL LABOR RELATIONS ACT,
MISSOURI HAS FORBIDDEN THE EXERCISE OF RIGHTS EXPLICITLY PROTECTED BY
SEC. 7 OF THAT ACT.  (FN10)  COLLECTIVE BARGAINING, WITH THE RIGHT TO
STRIKE AT ITS CORE, IS THE ESSENCE OF THE FEDERAL SCHEME.  AS IN
WISCONSIN BOARD, A STATE LAW WHICH DENIES THAT RIGHT CANNOT STAND UNDER
THE SUPREMACY CLAUSE OF THE CONSTITUTION. 

IT IS HARDLY NECESSARY TO ADD THAT NOTHING WE HAVE SAID EVEN REMOTELY
AFFECTS THE RIGHT OF A STATE TO OWN OR OPERATE A PUBLIC UTILITY OR ANY
OTHER BUSINESS, NOR THE RIGHT OR DUTY OF THE CHIEF EXECUTIVE OR
LEGISLATURE OF A STATE TO DEAL WITH EMERGENCY CONDITIONS OF PUBLIC
DANGER, VIOLENCE, OR DISASTER UNDER APPROPRIATE PROVISIONS OF THE
STATE'S ORGANIC OR STATUTORY LAW.  REVERSED. 

FN1  THE KING-THOMPSON ACT IS CHAPTER 295 OF THE REVISED STATUTES OF
MISSOURI, 1959.  THE SECTION OF THE STATUTE AUTHORIZING SEIZURE IS MO.
REV. STAT., 1959, SEC. 295.180. 

FN2  MISSOURI REV. STAT., 1959, SEC. 295.200, PAR. 1, PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, EMPLOYEE, OR REPRESENTATIVE AS
DEFINED IN THIS CHAPTER TO CALL, INCITE, SUPPORT OR PARTICIPATE IN ANY
STRIKE OR CONCERTED REFUSAL TO WORK FOR ANY UTILITY OR FOR THE STATE
AFTER ANY PLANT, EQUIPMENT OR FACILITY HAS BEEN TAKEN OVER BY THE STATE
UNDER THIS CHAPTER, AS MEANS OF ENFORCING ANY DEMANDS AGAINST THE
UTILITY OR AGAINST THE STATE." 


"THE COURTS OF THIS STATE SHALL HAVE POWER TO ENFORCE BY INJUNCTION
OR OTHER LEGAL OR EQUITABLE REMEDIES ANY PROVISION OF THIS CHAPTER OR
ANY RULE OR REGULATION PRESCRIBED BY THE GOVERNOR HEREUNDER." 

FN3  SEE STATE EX REL. STATE BOARD OF MEDIATION V. PIGG, 362 MO. 798,
244 S.W.2D 75; RIDER V. JULIAN, 365 MO. 313, 282 S.W.2D 484; STATE V.
LOCAL NO. 8-6, OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION, AFL
CIO, 317 S.W.2D 309, VACATED AS MOOT, 361 U.S. 363. 

FN4  SEC. 295.010.  "IT IS HEREBY DECLARED TO BE THE POLICY OF THE
STATE THAT HEAT, LIGHT, POWER, SANITATION, TRANSPORTATION,
COMMUNICATION, AND WATER ARE LIFE ESSENTIALS OF THE PEOPLE; THAT THE
POSSIBILITY OF LABOR STRIFE IN UTILITIES OPERATING UNDER GOVERNMENTAL
FRANCHISE OR PERMIT OR UNDER GOVERNMENTAL OWNERSHIP AND CONTROL IS A
THREAT TO THE WELFARE AND HEALTH OF THE PEOPLE; THAT UTILITIES SO
OPERATING ARE CLOTHED WITH PUBLIC INTEREST, AND THE STATE'S REGULATION
OF THE LABOR RELATIONS AFFECTING SUCH PUBLIC UTILITIES IS NECESSARY IN
THE PUBLIC INTEREST." 

FN5  SEC. 295.090.  "ALL COLLECTIVE BARGAINING LABOR AGREEMENTS
HEREAFTER ENTERED INTO BETWEEN THE MANAGEMENT OF A UTILITY AND ITS
EMPLOYEES OR ANY CRAFT OR CLASS OF EMPLOYEES SHALL BE REDUCED TO
WRITING AND CONTINUE FOR A PERIOD OF NOT LESS THAN ONE YEAR FROM THE
DATE OF THE EXPIRATION OF THE PREVIOUS AGREEMENT ENTERED INTO BETWEEN
THE MANAGEMENT OF THE UTILITY AND ITS EMPLOYEES OR IF THERE HAS BEEN NO
SUCH PREVIOUS AGREEMENT THEN FOR A PERIOD OF NOT LESS THAN ONE YEAR
FROM THE DATE OF THE ACTUAL EXECUTION OF THE AGREEMENT.  SUCH AGREEMENT
SHALL BE PRESUMED TO CONTINUE IN FORCE AND EFFECT FROM YEAR TO YEAR
AFTER THE DATE FIXED FOR ITS ORIGINAL TERMINATION UNLESS EITHER OR BOTH
PARTIES THERETO INFORM THE OTHER, IN WRITING, OF THE SPECIFIC CHANGES
DESIRED TO BE MADE THEREIN AND SHALL ALSO FILE A COPY OF SUCH DEMANDS
WITH THE STATE BOARD OF MEDIATION, AT LEAST SIXTY DAYS BEFORE THE
ORIGINAL TERMINATION DATE OR SIXTY DAYS BEFORE THE END OF ANY YEARLY
RENEWAL PERIOD, OR SIXTY DAYS BEFORE ANY TERMINATION DATE DESIRED
THEREAFTER." 

FN6  MO. REV. STAT., 1959, SEC. 295.030, 295.070, 295.080, 295.120,
295.140, 295.160, 295.170. 

FN7  SEC. 295.180.  "1.  SHOULD EITHER THE UTILITY OR ITS EMPLOYEES
REFUSE TO ACCEPT AND ABIDE BY THE RECOMMENDATIONS MADE PURSUANT TO THE
PROVISIONS OF THIS CHAPTER AND AS A RESULT THEREOF THE EFFECTIVE
OPERATION OF A PUBLIC UTILITY BE THREATENED OR INTERRUPTED, OR SHOULD
EITHER PARTY IN A LABOR DISPUTE BETWEEN A UTILITY AND ITS EMPLOYEES,
AFTER HAVING GIVEN SIXTY DAYS' NOTICE THEREOF, OR FAILING TO GIVE SUCH
NOTICE, ENGAGE IN ANY STRIKE, WORK STOPPAGE OR LOCKOUT WHICH, IN THE
OPINION OF THE GOVERNOR, WILL RESULT IN THE FAILURE TO CONTINUE THE
OPERATION OF THE PUBLIC UTILITY, AND THREATENS THE PUBLIC INTEREST,
HEALTH AND WELFARE, OR IN THE EVENT THAT NEITHER SIDE HAS GIVEN NOTICE
TO THE OTHER OF AN INTENTION TO SEEK A CHANGE IN WORKING CONDITIONS,
AND THERE OCCURS A LOCKOUT, STRIKE OR WORK STOPPAGE WHICH, IN THE
OPINION OF THE GOVERNOR, THREATENS TO IMPAIR THE OPERATION OF THE
UTILITY SO AS TO INTERFERE WITH THE PUBLIC INTEREST, HEALTH AND
WELFARE, THEN AND IN THAT CASE HE IS AUTHORIZED TO TAKE IMMEDIATE
POSSESSION OF THE PLANT, EQUIPMENT OR FACILITY FOR THE USE AND
OPERATION BY THE STATE OF MISSOURI IN THE PUBLIC INTEREST. 

"2.  SUCH POWER AND AUTHORITY MAY BE EXERCISED BY THE GOVERNOR
THROUGH SUCH DEPARTMENT OR AGENCY OF THE GOVERNMENT AS HE MAY DESIGNATE
AND MAY BE EXERCISED AFTER HIS INVESTIGATION AND PROCLAMATION THAT
THERE IS A THREATENED OR ACTUAL INTERRUPTION OF THE OPERATION OF SUCH
PUBLIC UTILITY AS THE RESULT OF A LABOR DISPUTE, A THREATENED OR ACTUAL
STRIKE, A LOCKOUT OR OTHER LABOR DISTURBANCE, AND THAT THE PUBLIC
INTEREST, HEALTH AND WELFARE ARE JEOPARDIZED, AND THAT THE EXERCISE OF
SUCH AUTHORITY IS NECESSARY TO INSURE THE OPERATION OF SUCH PUBLIC
UTILITY; PROVIDED, THAT WHENEVER SUCH PUBLIC UTILITY, ITS PLANT,
EQUIPMENT OR FACILITY HAS BEEN OR IS HEREAFTER SO TAKEN BY REASON OF A
STRIKE, LOCKOUT, THREATENED STRIKE, THREATENED LOCKOUT, WORK STOPPAGE
OR SLOWDOWN, OR OTHER CAUSE, SUCH UTILITY, PLANT, EQUIPMENT OR FACILITY
SHALL BE RETURNED TO THE OWNERS THEREOF AS SOON AS PRACTICABLE AFTER
THE SETTLEMENT AND IT SHALL THEREUPON BE THE DUTY OF SUCH UTILITY TO
CONTINUE THE OPERATION OF THE PLANT FACILITY, OR EQUIPMENT IN
ACCORDANCE WITH ITS FRANCHISE AND CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY." 

FN8  29 U.S.C. SEC. 152(2), (3), 49 STAT. 450; 61 STAT. 137-138. 
COMPARE UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258. 

FN9  IN ENACTING THE TAFT-HARTLEY ACT, CONGRESS EXPRESSLY REJECTED
THE SUGGESTION THAT PUBLIC UTILITIES BE TREATED DIFFERENTLY FROM OTHER
EMPLOYERS.  AS EXPLAINED BY SENATOR TAFT, "IF WE BEGIN WITH PUBLIC
UTILITIES, IT WILL BE SAID THAT COAL AND STEEL ARE JUST AS IMPORTANT AS
PUBLIC UTILITIES.  I DO NOT KNOW WHERE WE COULD DRAW THE LINE.  SO FAR
AS THE BILL IS CONCERNED, WE HAVE PROCEEDED ON THE THEORY THAT THERE IS
A RIGHT TO STRIKE AND THAT LABOR PEACE MUST BE BASED ON FREE COLLECTIVE
BARGAINING."  93 CONG. REC. 3835. 

FN10  "EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM,
JOIN, OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 158(A)(3)."  29 U.S.C.
SEC. 157, 49 STAT. 452; 61 STAT. 140. 
..END :
















UNITED STATES V. PIONEER AMERICAN INSURANCE CO. 374 U.S. 84 


NO. 405.  ARGUED APRIL 17, 1963 - DECIDED JUNE 10, 1963 - 235 ARK. 267,
357 S.W.2D 653, REVERSED. 


FEDERAL TAX LIENS ARE ENTITLED TO PRIORITY OVER THE CLAIM OF A
MORTGAGE FOR A "REASONABLE ATTORNEY'S FEE" IN PROSECUTING A FORECLOSURE
SUIT WHERE NOTICE OF THE FEDERAL TAX LIENS WAS RECORDED AFTER
RECORDATION OF THE MORTGAGE, AFTER DEFAULT THEREON AND AFTER THE
INSTITUTION OF THE FORECLOSURE SUIT, BUT PRIOR TO THE ENTRY OF THE
JUDICIAL DECREE WHICH ALLOWED AND DETERMINED THE AMOUNT OF THE
ATTORNEY'S FEE.  PP. 84-92. 

UNITED STATES V. PIONEER AMERICAN INSURANCE CO. ET AL. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES HAS SOUGHT REVIEW OF A DECISION OF THE SUPREME
COURT OF ARKANSAS SUBORDINATING THE FEDERAL TAX LIEN (26 U.S.C. SEC.
6321) TO A LIEN FOR ATTORNEY'S FEES INCLUDED IN AN ANTECEDENT MORTGAGE
CONTRACT.  235 ARK. 267, 357 S.W.2D 653.  BECAUSE OF CONFLICT BETWEEN
THE ARKANSAS DECISION AND UNITED STATES V. BOND, 279 F.2D 837 (C.A. 4TH
CIR.); IN RE NEW HAVEN CLOCK & WATCH CO., 253 F.2D 577 (C.A.2D CIR.),
WE GRANTED CERTIORARI.  371 U.S. 909. 

WHEN THE TAXPAYERS IN 1958 ACQUIRED THEIR INTEREST IN THE PARCEL OF
REAL ESTATE INVOLVED HERE, THEY ASSUMED LIABILITY ON A NOTE AND THE
DEED OF TRUST (FIRST MORTGAGE) SECURING IT, WHICH WERE HELD BY
RESPONDENT PIONEER AMERICAN INSURANCE COMPANY.  THE NOTE OBLIGATED
TAXPAYERS "IN THE EVENT OF DEFAULT HEREIN AND OF THE PLACING OF THIS
NOTE IN THE HANDS OF AN ATTORNEY FOR COLLECTION, OR THIS NOTE IS
COLLECTED THROUGH ANY COURT PROCEEDINGS, TO PAY A REASONABLE ATTORNEY'S
FEE."  (FN1)  THE TAXPAYERS AT THE SAME TIME EXECUTED A NOTE AND SECOND
MORTGAGE TO THEIR VENDOR, RESPONDENT THE DEVELOPMENT COMPANY, AND
SUBSEQUENTLY, IN APRIL 1960, THE REAL ESTATE BECAME BURDENED AGAIN WITH
A MECHANIC'S LIEN IN FAVOR OF ALFRED J. ANDERSON. 

IN OCTOBER OF 1960, TAXPAYERS DEFAULTED ON THE FIRST MORTGAGE MONTHLY
INSTALLMENT AND FAILED THEREAFTER TO MEET PAYMENTS AS THEY FELL DUE. 
ON MARCH 24, 1961, PIONEER AMERICAN FILED A SUIT TO FORECLOSE ITS
MORTGAGE AND SOUGHT, IN ADDITION TO THE PRINCIPAL AND INTEREST, A
REASONABLE ATTORNEY'S FEE.  THE UNITED STATES WAS NAMED A PARTY
DEFENDANT BECAUSE OF TWO OUTSTANDING FEDERAL TAX LIENS AGAINST THE
TAXPAYERS WHICH WERE FILED ON NOVEMBER 29, 1960, AND JANUARY 30, 1961. 
THE UNITED STATES ADMITTED ITS LIENS WERE SUBORDINATE TO THE PRINCIPAL
AND INTEREST ON THE FIRST AND SECOND MORTGAGES BUT CLAIMED THAT THE
LIENS WERE SUPERIOR TO THE CLAIM FOR THE ATTORNEY'S FEE.  THREE
ADDITIONAL FEDERAL TAX LIENS SUBSEQUENTLY WERE FILED ON APRIL 14, JULY
17, AND OCTOBER 3, 1961.  (FN2) 

ON NOVEMBER 15, 1961, THE CHANCERY COURT ENTERED ITS DECREE OF
FORECLOSURE WHICH FIXED THE ATTORNEY'S FEE AT $1,250 AND DETERMINED THE
PRIORITY OF THE VARIOUS CLAIMANTS.  AFTER SATISFACTION OF COURT AND
FORECLOSURE SALE COSTS, PIONEER AMERICAN WAS ACCORDED FIRST PRIORITY
FOR PRINCIPAL, INTEREST AND THE ATTORNEY'S FEE; THE DEVELOPMENT COMPANY
TOOK NEXT ON PRINCIPAL AND INTEREST UNDER THE SECOND MORTGAGE; ALFRED
J. ANDERSON SHARED THEREAFTER ON HIS MECHANIC'S LIEN AND THE UNITED
STATES TOOK LAST.  THE PROPERTY WAS SOLD AND PROCEEDS WERE RECEIVED
WHICH SATISFIED ALL CLAIMS EXCEPT $3,615.28 OF THE FEDERAL TAX LIENS. 
(FN3)  THE UNITED STATES APPEALED TO THE SUPREME COURT OF ARKANSAS
ASSERTING THAT IT WAS ENTITLED TO PRIORITY OVER THE ATTORNEY'S FEES,
(FN4) AND THAT $1,250 MORE SHOULD HAVE BEEN APPLIED TO REDUCE THE
UNPAID FEDERAL TAXES.  (FN5)  WITH ONE JUDGE DISSENTING, THE ARKANSAS
COURT REJECTED THAT CONTENTION AND SUSTAINED THE SUPERIORITY OF THE
CLAIM FOR THE ATTORNEY'S FEE. 

IT GOES UNCHALLENGED THAT THE CLAIM FOR THE ATTORNEY'S FEE, ARISING
OUT OF THE OBLIGATIONS ASSUMED BY THE TAXPAYER IN 1958, BECAME
ENFORCEABLE UNDER ARKANSAS LAW AS A CONTRACT OF INDEMNITY AT THE TIME
OF DEFAULT IN OCTOBER 1960 BEFORE THE FILING OF THE FIRST FEDERAL TAX
LIENS.  FURTHERMORE, IT IS EVIDENT THAT THE SUIT IN WHICH THIS
ATTORNEY'S FEE WAS EARNED WAS COMMENCED ON MARCH 24, 1961, PRIOR TO THE
FILING OF THE UNPAID FEDERAL TAX LIENS CRUCIAL TO THIS SUIT, I.E., THE
LIENS OF APRIL 14, JULY 17, AND OCTOBER 3, 1961.  NEVERTHELESS, BECAUSE
THIS FEE HAD NOT BEEN INCURRED AND PAID AND COULD NOT BE FINALLY FIXED
IN AMOUNT UNTIL NOVEMBER 15, 1961, AFTER ALL THE FEDERAL LIENS HAD BEEN
FILED, WE HOLD THAT THE CLAIM FOR ATTORNEY'S FEES REMAINED INCHOATE AT
LEAST UNTIL THAT DATE AND THAT THE FEDERAL TAX LIENS ARE ENTITLED TO
PRIORITY. 

THE PRIORITY OF THE FEDERAL TAX LIEN PROVIDED BY 26 U.S.C. SEC. 6321
AS AGAINST LIENS CREATED UNDER STATE LAW IS GOVERNED BY THE COMMON-LAW
RULE - "THE FIRST IN TIME IS THE FIRST IN RIGHT."  UNITED STATES V. NEW
BRITAIN, 347 U.S. 81, 85-86.  IT IS CRITICAL, THEREFORE, TO DETERMINE
WHEN COMPETING LIENS, WHETHER FEDERAL- OR STATE-CREATED, COME INTO
EXISTENCE OR BECOME VALID FOR THE PURPOSE OF THE RULE. 

THE TAX LIEN ARISES, ACCORDING TO SEC. 6322, WHEN THE TAX IS
ASSESSED, BUT AS AGAINST THE SPECIFIC INTERESTS MENTIONED IN SEC.
6323(A) - MORTGAGEES, PLEDGEES, PURCHASERS AND JUDGMENT CREDITORS - IT
IS NOT VALID UNTIL PLACED OF PUBLIC RECORD, AND INSOFAR AS THE FEDERAL
LIEN ATTACHES TO SECURITIES, MORTGAGEES, PLEDGEES AND PURCHASERS MUST
HAVE ACTUAL NOTICE OF THE LIEN.  (FN6)  SEC. 6323(C). 

AS FOR A LIEN CREATED BY STATE LAW, ITS PRIORITY DEPENDS "ON THE TIME
IT ATTACHED TO THE PROPERTY IN QUESTION AND BECAME CHOATE."  UNITED
STATES V. NEW BRITAIN, SUPRA, AT 86; UNITED STATES V. SECURITY TR. &
SAV. BANK, 340 U.S. 47.  CHOATE STATE-CREATED LIENS TAKE PRIORITY OVER
LATER FEDERAL TAX LIENS, UNITED STATES V. NEW BRITAIN, SUPRA; CREST
FINANCE CO. V. UNITED STATES, 368 U.S. 347, WHILE INCHOATE LIENS DO
NOT.  SEE UNITED STATES V. LIVERPOOL & LONDON INS. CO., 348 U.S. 215;
UNITED STATES V. SCOVIL, 348 U.S. 218; UNITED STATES V. COLOTTA, 350
U.S. 808.  AND IT IS A MATTER OF FEDERAL LAW WHEN SUCH A LIEN HAS
ACQUIRED SUFFICIENT SUBSTANCE AND HAS BECOME SO PERFECTED AS TO DEFEAT
A LATER-ARISING OR LATER-FILED FEDERAL TAX LIEN.  (FN7)  "OTHERWISE, A
STATE COULD AFFECT THE STANDING OF FEDERAL LIENS, CONTRARY TO THE
ESTABLISHED DOCTRINE, SIMPLY BY CAUSING AN INCHOATE LIEN TO ATTACH AT
SOME ARBITRARY TIME EVEN BEFORE THE AMOUNT OF THE TAX, ASSESSMENT,
ETC., IS DETERMINED."  UNITED STATES V. NEW BRITAIN, SUPRA, AT 86.  THE
FEDERAL RULE IS THAT LIENS ARE "PERFECTED IN THE SENSE THAT THERE IS
NOTHING MORE TO BE DONE TO HAVE A CHOATE LIEN - WHEN THE IDENTITY OF
THE LIENOR, THE PROPERTY SUBJECT TO THE LIEN, AND THE AMOUNT OF THE
LIEN ARE ESTABLISHED."  ID., AT 84. 

WE REJECT RESPONDENTS' CONTENTION THAT THE CHOATENESS RULE HAS NO
PLACE WHEN A MORTGAGE UNDER SEC. 6323(A) IS INVOLVED.  THE PREDECESSOR
TO SEC. 6323 WAS FIRST ENACTED BY CONGRESS IN 1912 IN ORDER TO PROTECT
MORTGAGEES, PURCHASERS AND JUDGMENT CREDITORS AGAINST A SECRET LIEN FOR
ASSESSED TAXES AND TO POSTPONE THE EFFECTIVENESS OF THE TAX LIEN AS
AGAINST THESE INTERESTS UNTIL THE TAX LIEN WAS FILED.  H.R. REP. NO.
1018, 62D CONG., 2D SESS.  THE SECTION DEALT WITH THE FEDERAL LIEN ONLY
AND IT DID NOT PURPORT TO AFFECT THE TIME AT WHICH LOCAL LIENS WERE
DEEMED TO ARISE OR TO BECOME CHOATE OR TO SUBORDINATE THE TAX LIEN TO
TENTATIVE, CONDITIONAL OR IMPERFECT STATE LIENS.  RATHER, WE BELIEVE
CONGRESS INTENDED THAT IF OUT OF THE WHOLE SPECTRUM OF STATE-CREATED
LIENS, CERTAIN LIENS ARE TO ENJOY THE PREFERRED STATUS GRANTED BY SEC.
6323, THEY SHOULD AT LEAST HAVE ATTAINED THE DEGREE OF PERFECTION
REQUIRED OF OTHER LIENS AND BE CHOATE FOR THE PURPOSES OF THE FEDERAL
RULE. 

THE COURT HAS NEVER HELD THAT MORTGAGEES FACE A LESS DEMANDING TEST OF
PERFECTION THAN OTHER INTERESTS WHEN COMPETING WITH A FEDERAL LIEN. 
INDEED UNITED STATES V. BALL CONSTR.  CO., 355 U.S. 587, STANDS FOR
JUST THE CONTRARY.  THERE THE STATE LAW CREDITOR, ASSERTING THAT THE
ASSIGNMENT UNDER WHICH HE CLAIMED WAS A MORTGAGE WITHIN THE PREDECESSOR
TO SEC.  6323, INSISTED UPON PRIORITY OVER THE FEDERAL LIEN BY VIRTUE
OF THE PREVIOUSLY EXECUTED ASSIGNMENT.  A MAJORITY OF THE COURT,
ALTHOUGH NOT EXPRESSLY DECLARING THE ASSIGNMENT TO BE A MORTGAGE, HELD
THAT SEC. 6323(A) AFFORDED THE CREDITOR NO PROTECTION SINCE HIS
INTEREST WAS "INCHOATE AND UNPERFECTED."  THE FOUR DISSENTERS THOUGHT
THE ASSIGNMENT WAS A MORTGAGE AND THAT IT WAS "COMPLETELY PERFECTED"
AND "IN ALL RESPECTS CHOATE."  WHILE DISAGREEING ON THE CHOATENESS OF
THE PARTICULAR ASSIGNMENT INVOLVED THERE, THE COURT WAS UNANIMOUS IN
APPLYING THE CHOATENESS TEST TO THOSE SEEKING THE PROTECTION OF SEC.
6323(A).  WE FOLLOW THAT LEAD HERE AND THEREFORE PROCEED TO MEASURE
AGAINST THE RULE THE CHOATENESS OF THE MORTGAGEE'S LIEN FOR REASONABLE
ATTORNEY'S FEES BEFORE US. 

CLEARLY THE IDENTITY OF THE LIENHOLDER AND THE PROPERTY SUBJECT TO
THE LIEN ARE DEFINITE HERE, BUT IT IS EQUALLY APPARENT THAT THE AMOUNT
OF THE LIEN FOR ATTORNEY'S FEES WAS UNDETERMINED AND INDEFINITE WHEN
THE FEDERAL TAX LIENS IN QUESTION WERE FILED.  (FN8)  THE MORTGAGE HELD
BY RESPONDENTS SECURED A PROMISSORY NOTE WHICH OBLIGATED THE MORTGAGOR
MAKER TO PAY A "REASONABLE ATTORNEY'S FEE" "IN THE EVENT OF DEFAULT"
AND "OF THE PLACING OF THIS NOTE IN THE HANDS OF AN ATTORNEY FOR
COLLECTION."  BY THE TIME THE FEDERAL LIENS SUBORDINATED BY THE
ARKANSAS COURTS WERE PLACED OF PUBLIC RECORD, DEFAULT HAD OCCURRED, THE
MORTGAGEE HAD ELECTED TO DECLARE THE NOTE DUE AND PAYABLE, AN ATTORNEY
HAD BEEN ENGAGED AND A SUIT TO FORECLOSE THE MORTGAGE HAD BEEN FILED. 
BUT THE "REASONABLE ATTORNEY'S FEE" - REASONABLE IN RELATION TO THE
SERVICE TO BE PERFORMED BY THE ATTORNEY - HAD NOT BEEN REDUCED TO A
LIQUIDATED AMOUNT.  THE FINAL AMOUNT WAS TO BE ESTABLISHED BY COURT
DECREE AND THE CHANCERY COURT SET THE FEE CONSIDERABLY BELOW THE SUM
REQUESTED.  MOREOVER, THERE IS NO SHOWING IN THIS RECORD THAT THE
MORTGAGEE HAD BECOME OBLIGATED TO PAY AND HAD PAID ANY SUM OF MONEY FOR
SERVICES PERFORMED PRIOR TO THE FILING OF THE FEDERAL TAX LIEN. 

BALL ONCE AGAIN PROVIDES A PARALLEL.  SUMS DUE THE CONTRACTOR
TAXPAYER UNDER A PARTICULAR CONSTRUCTION CONTRACT WERE ASSIGNED TO THE
SURETY AS SECURITY FOR ANY FUTURE INDEBTEDNESS OF THE CONTRACTOR TO THE
SURETY ARISING UNDER THAT CONTRACT OR ANY OTHER.  AFTER THE FILING OF
THE FEDERAL TAX LIEN AGAINST THE CONTRACTOR, THE SURETY MADE ADVANCES
TO COMPLETE ANOTHER CONTRACT OF THE TAXPAYER, AS THE SURETY WAS
OBLIGATED TO DO UNDER ITS BOND ISSUED ON THAT CONTRACT, AND THE
TAXPAYER THEREBY BECAME INDEBTED TO THE SURETY.  THE MAJORITY HELD THE
SURETY'S INTEREST "INCHOATE AND UNPERFECTED" AT THE TIME OF THE FILING
OF THE FEDERAL TAX LIENS.  (FN9)  BALL THEREFORE REJECTS AS INCHOATE AN
ASSIGNEE'S OR MORTGAGEE'S LIEN TO SECURE FUTURE INDEBTEDNESS OF THE
TAXPAYER-DEBTOR.  THE CREDITOR HOLDS MERELY "A CAVEAT OF A MORE PERFECT
LIEN TO COME."  NEW YORK V. MACLAY, 288 U.S. 290, 294.  LIKEWISE, WHEN
A MORTGAGEE HAS A LIEN FOR AN ATTORNEY'S FEE WHICH IS UNCERTAIN IN
AMOUNT AND YET TO BE INCURRED AND PAID, SUCH A LIEN IS INCHOATE AND IS
SUBORDINATE TO THE INTERVENING FEDERAL TAX LIEN FILED BEFORE THE
MORTGAGEE'S LIEN FOR THE ATTORNEY'S FEE MATURES.  (FN10) 

BUT, IT IS SAID, THE PRINCIPAL AND INTEREST OF THE MORTGAGE WERE
DEFINITE IN AMOUNT, THE ATTORNEY'S FEE LATER BECAME CERTAIN BY COURT
ORDER (FN11) AND IF THE TAX LIEN WERE TO PREVAIL THE PREFERENCE OF THE
MORTGAGEE GIVEN BY SEC. 6323 WILL BE FRUSTRATED SINCE PAYMENT OF THE
ATTORNEY'S FEE WILL REDUCE THE NET AMOUNT REALIZED FROM THE MORTGAGE. 
ASIDE FROM THE FACT THAT THE MORTGAGEE HERE WILL EXPERIENCE NO SUCH
REDUCTION, (FN12) THIS ARGUMENT WILL SUBORDINATE FEDERAL TAX LIENS TO
INCHOATE LIENS AND IN BOTH UNITED STATES V. NEW BRITAIN, SUPRA, AND
UNITED STATES V. BUFFALO SAVINGS BANK, 371 U.S. 228, THE COURT DENIED
PRIORITY TO LOCAL TAX LIENS WHICH WERE IMPERFECT WHEN THE FEDERAL TAX
LIEN WAS FILED EVEN THOUGH THE FORMER HAD PRIORITY OVER THE MORTGAGE
AND WOULD REDUCE THE RECOVERY OF THE MORTGAGEE.  (FN13) 

THE COURT BELOW WAS IN ERROR AND ITS JUDGMENT IS REVERSED AND THE
CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  THE DEED OF TRUST PROVIDED, IN ADDITION: 

"THAT IF EITHER PARTY OF THE SECOND PART (TRUSTEE) OR THE PARTY OF
THE FIRST PART (MORTGAGOR) SHALL BECOME A PARTY TO ANY SUIT OR
PROCEEDING AT LAW OR IN EQUITY IN REFERENCE TO ITS INTEREST IN THE
PREMISES HEREIN CONVEYED, THE REASONABLE COSTS, CHARGES AND ATTORNEY'S
FEES IN SUCH SUIT OR PROCEEDING SHALL BE ADDED TO THE PRINCIPAL SUM
THEN OWING BY THE PARTY OF THE FIRST PART AND SHALL BE SECURED BY THIS
INSTRUMENT, AND THE NOTE SECURED HEREBY SHALL, AT THE OPTION OF THE
HOLDER, BECOME DUE AND COLLECTIBLE. 

     *        *         *         *         * 

"THE PROCEEDS OF ANY SALE UNDER THIS DEED OF TRUST SHALL BE APPLIED
...  AS FOLLOWS: 

"FIRST:  TO PAY THE COSTS AND EXPENSES OF EXECUTING THIS TRUST, AND
ANY AND ALL SUMS EXPENDED ON ACCOUNT OF COSTS OF LITIGATION, ATTORNEY'S
FEES, GROUND RENTS, TAXES, INSURANCE PREMIUMS, OR ANY ADVANCES MADE OR
EXPENSES INCURRED ON ACCOUNT OF THE PROPERTY SOLD, WITH INTEREST
THEREON. 

"SECOND:  TO RETAIN AS COMPENSATION, A COMMISSION AS SET FORTH BY THE
LAWS OF THE STATE OF ARKANSAS. 

"THIRD:  TO PAY OFF THE DEBT SECURED HEREBY, INCLUDING ACCRUED
INTEREST THEREON, AS WELL AS ANY OTHER SUMS OWING  ...  PURSUANT TO
THIS INSTRUMENT." 

FN2  THE FEDERAL TAX LIENS, AS OF THE DATE OF THE ORDER OF
DISTRIBUTION, NOVEMBER 15, 1961, WERE AS FOLLOWS: 

LIEN OF NOVEMBER 29, 1960
 $  659.67 

LIEN OF JANUARY 30, 1961                1,661.03    LIEN OF APRIL 14,
1961                 1,344.69 

LIEN OF JULY 17, 1961
1,653.23 

LIEN OF OCTOBER 3, 1961        1,164.04 

FN3  THE FIRST TWO LIENS, NOVEMBER 29, 1960, AND JANUARY 30, 1961,
WERE SATISFIED IN FULL.  $546.68 WAS AVAILABLE FOR PARTIAL PAYMENT OF
THE APRIL 14, 1961, LIEN.  THE BALANCE OF THE APRIL LIEN AND THE FULL
AMOUNTS OF THE JULY 17, AND OCTOBER 3, 1961, LIENS REMAINED
UNSATISFIED. 

FN4  THE UNITED STATES DID NOT CHALLENGE THE PRIORITY OF THE
MECHANIC'S LIEN OR OF ANY OTHER DISTRIBUTION FIXED BY THE DECREE. 
FN5  ONCE THE ATTORNEY'S FEE IS SUBORDINATED TO THE FEDERAL TAX LIENS,
THE $1,250 WOULD BE BORNE BY THE OTHER CLAIMANTS IN ORDER OF SENIORITY
AMONG THEMSELVES UNDER STATE LAW.  ON THE BASIS OF THE PRESENT DECREE,
THE SHARE OF THE MECHANIC'S LIENOR ANDERSON WOULD BE ELIMINATED AND
THAT OF THE SECOND MORTGAGEE, THE DEVELOPMENT COMPANY, REDUCED BY
HALF. 

FN6  "WHILE IT IS TRUE THAT THE FILING OF THE NOTICE OF THE TAX LIEN
MAY CONSTITUTE NOTICE IN THE CASE OF REAL PROPERTY, IT IS INEQUITABLE
FOR THE STATUTE TO PROVIDE THAT IT CONSTITUTES NOTICE AS REGARDS
SECURITIES.  FOR EXAMPLE, WHEN A BROKER PURCHASES A SECURITY FOR HIS
CUSTOMER ON THE EXCHANGE, IT IS OBVIOUSLY IMPOSSIBLE FOR HIM TO CHECK
ALL THE OFFICES IN WHICH A NOTICE OF A TAX LIEN MAY BE DULY FILED TO
DETERMINE WHETHER THE SECURITY IS SUBJECT TO SUCH LIEN.  A LIKE
SITUATION EXISTS WITH RESPECT TO OVER-THE-COUNTER AND DIRECT
TRANSACTIONS IN SECURITIES.  AN ATTEMPT TO ENFORCE SUCH LIENS ON
RECORDED NOTICE WOULD IN MANY CASES IMPAIR THE NEGOTIABILITY OF
SECURITIES AND SERIOUSLY INTERFERE WITH BUSINESS TRANSACTIONS.  THE
ADOPTION OF THE AMENDMENT WILL REMOVE AN EXISTING HARDSHIP WITHOUT
CAUSING ANY UNDUE LOSS OF REVENUE."  H.R. REP. NO. 855, 76TH CONG., 1ST
SESS. 26 (1939). 

FN7  "THE EFFECT OF A LIEN IN RELATION TO A PROVISION OF FEDERAL LAW
FOR THE COLLECTION OF DEBTS OWING THE UNITED STATES IS ALWAYS A FEDERAL
QUESTION.  HENCE, ALTHOUGH A STATE COURT'S CLASSIFICATION OF A LIEN AS
SPECIFIC AND PERFECTED IS ENTITLED TO WEIGHT, IT IS SUBJECT TO
REEXAMINATION BY THIS COURT."  UNITED STATES V. SECURITY TR. & SAV.
BANK, 340 U.S. 47, 49-50; SEE ALSO, UNITED STATES V. ACRI, 348 U.S.
211; UNITED STATES V. VORREITER, 355 U.S. 15.  THUS THE FACT THAT,
UNDER ARKANSAS LAW, THE CLAIM FOR ATTORNEY'S FEES BECOMES ENFORCEABLE
UPON DEFAULT AS A CONTRACT OF INDEMNITY DOES NOT FORECLOSE INQUIRY BY
THIS COURT INTO THE DEGREE THE CLAIM IS CHOATE AT THAT TIME. 

FN8  THERE IS NOTHING IN SECURITY MORTGAGE CO. V. POWERS, 278 U.S.
149, WHICH COMPELS US TO HOLD THE LIEN CHOATE, SINCE THE ISSUE THERE
WAS THE STATUS OF AN ATTORNEY'S FEE CLAUSE, FIXED IN AMOUNT, IN
BANKRUPTCY PROCEEDINGS WHERE THE RIGOROUS FEDERAL LIEN CHOATENESS TEST
WAS NOT NECESSARILY APPLICABLE. 

FN9  CONTRAST CREST FINANCE CO. V. UNITED STATES, 368 U.S. 347, WHERE
THE ASSIGNMENT AND THE LOANS WERE CONSUMMATED PRIOR TO THE ACCRUAL AND
FILING OF THE FEDERAL TAX LIENS. 

FN10  SEE IN ACCORD, WITH RESPECT TO ATTORNEY'S FEES, UNITED STATES
V. BOND, 279 F.2D 837 (C.A. 4TH CIR.); IN RE NEW HAVEN CLOCK & WATCH
CO., 253 F.2D 577 (C.A.2D CIR.); BANK OF AMERICA V. EMBRY, 188 CAL.
APP. 2D 425, 10 CAL. RPTR.  602; WITH RESPECT TO PAYMENTS OF
SUBSEQUENTLY ATTACHING LOCAL TAXES, UNITED STATES V. BOND, SUPRA;
UNITED STATES V. CHRISTENSEN, 269 F.2D 624 (C.A. 9TH CIR.); AND WITH
RESPECT TO FUTURE ADVANCE CLAUSE TRANSACTIONS, AMERICAN SURETY CO. V.
SUNDBERG, 58 WASH. 2D 337, 363 P.2D 99; REV. RULE 56-41, 1956-1 CUM.
BULL.  562; CF. UNITED STATES V. PEOPLES BANK, 197 F.2D 898 (C.A. 5TH
CIR.); HOARE V. UNITED STATES, 294 F.2D 823 (C.A. 9TH CIR.). 

FN11  THIS ARGUMENT WOULD REQUIRE US TO REVITALIZE THE LONG SINCE
REJECTED RELATION-BACK DOCTRINE.   SEE UNITED STATES V. SECURITY TR. &
SAV. BANK, 340 U.S. 47, 50. 

FN12  SEE NOTE 5, SUPRA. 

FN13  BY THE SAME TOKEN RESPONDENTS' CONTENTION THAT THE RULES
AGAINST "UNJUST ENRICHMENT" ARE VIOLATED BY PREFERRING THE TAX LIEN TO
THE CLAIM FOR ATTORNEY'S FEES IS WITHOUT MERIT.  BOTH NEW BRITAIN AND
BUFFALO SAVINGS BANK PREFER THE FEDERAL LIEN EVEN THOUGH THE
MORTGAGEE'S INTEREST IN THE PROCEEDS WILL BE REDUCED BY LATER-ARISING
LOCAL TAXES HAVING PRIORITY UNDER STATE LAW OVER THE MORTGAGEE.  THE
ATTORNEY'S SERVICES, MOREOVER, WERE RENDERED FOR THE BENEFIT OF THE
MORTGAGEE TO PROTECT HIS INTEREST IN THE PROPERTY, AND THE UNITED
STATES, HOLDING AN ADVERSE INTEREST, RECEIVED NO SUCH BENEFIT FROM THEM
THAT ITS INTEREST IS TO BE CHARGED THEREFOR. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :










ALLEN V. VIRGINIA 374 U.S. 93 


NO. 264, MISC.  DECIDED JUNE 10, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


ALLEN ET AL. V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF HOPEWELL,
VIRGINIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE CIRCUIT COURT OF HOPEWELL, VIRGINIA, FOR
RECONSIDERATION IN LIGHT OF GRIFFIN V. ILLINOIS, 351 U.S. 12. 
..END :














BALDWIN V. MOSS 374 U.S. 93 


NO. 864.  DECIDED JUNE 10, 1963.  - APPEAL DISMISSED.  - REPORTED BELOW:
- F. SUPP. - .


BALDWIN ET AL. V. MOSS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 

MR. JUSTICE HARLAN WOULD POSTPONE CONSIDERATION OF THE QUESTION OF
JURISDICTION UNTIL AFTER ARGUMENT ON THE MERITS. 
..END :














LUBLIN V. JAMES T. BARNES & CO. 374 U.S. 94 


NO. 1040.  DECIDED JUNE 10, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 368 MICH. 179, 117 N.W.2D 785. 


LUBLIN V. JAMES T. BARNES & CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














W.R. ARTHUR & CO., INC. V. WISCONSIN DEPARTMENT OF TAXATION 374 U.S. 94 



NO. 1008.  DECIDED JUNE 10, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 18 WIS. 2D 225, 118 N.W.2D 168. 


W.R. ARTHUR & CO., INC., V. WISCONSIN DEPARTMENT OF TAXATION. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















SCOTT V. PENNSYLVANIA 374 U.S. 95 


NO. 1003, MISC.  DECIDED JUNE 10, 1963 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


SCOTT V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















SLOAN'S MOVING & STORAGE CO., INC. V. UNITED STATES 374 U.S. 95 


NO. 880.  DECIDED JUNE 10, 1963 - 208 F. SUPP. 567, AFFIRMED. 


SLOAN'S MOVING & STORAGE CO., INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















BOLLETTIERI V. NEW YORK 374 U.S. 96 


NO. 1378, MISC.  DECIDED JUNE 10, 1963 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


BOLLETTIERI V. NEW YORK. 

APPEAL FROM THE SUPREME COURT OF NEW YORK, ONEIDA COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :













BRIGGS V. LOUISIANA STATE BAR ASSOCIATION, COMMITTEE ON BAR ADMISSIONS
374 U.S. 96 


NO. 1070, MISC.  DECIDED JUNE 10, 1963 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


BRIGGS V. LOUISIANA STATE BAR ASSOCIATION, COMMITTEE ON BAR ADMISSIONS. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















RANDOLPH V. VIRGINIA 374 U.S. 97 


NO. 20.  DECIDED JUNE 10, 1963 - CERTIORARI GRANTED; JUDGMENTS VACATED;
AND CASE REMANDED.  REPORTED BELOW:  202 VA. 661, 119 S.E.2D 817. 


RANDOLPH ET AL. V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENTS ARE
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF APPEALS OF
VIRGINIA FOR RECONSIDERATION IN LIGHT OF PETERSON V. CITY OF
GREENVILLE, 373 U.S. 244. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT ON THE PREMISES STATED IN
HIS SEPARATE OPINION IN PETERSON V. CITY OF GREENVILLE AND AVENT V.
NORTH CAROLINA, 373 U.S., AT 248. 
..END :










HENRY V. VIRGINIA 374 U.S. 98 


NO. 29.  DECIDED JUNE 10, 1963 - CERTIORARI GRANTED; JUDGMENTS VACATED;
AND CASE REMANDED. 


HENRY ET AL. V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENTS ARE
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF APPEALS OF
VIRGINIA FOR RECONSIDERATION IN LIGHT OF PETERSON V. CITY OF
GREENVILLE, 373 U.S. 244. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT ON THE PREMISES STATED IN
HIS SEPARATE OPINION IN PETERSON V. CITY OF GREENVILLE AND AVENT V.
NORTH CAROLINA, 373 U.S., AT 248. 
..END :










THOMPSON V. VIRGINIA 374 U.S. 99 


NO. 60.  DECIDED JUNE 10, 1963 - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED. 


THOMPSON V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF APPEALS OF
VIRGINIA FOR RECONSIDERATION IN LIGHT OF PETERSON V. CITY OF
GREENVILLE, 373 U.S. 244. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT ON THE PREMISES STATED IN
HIS SEPARATE OPINION IN PETERSON V. CITY OF GREENVILLE AND AVENT V.
NORTH CAROLINA, 373 U.S., AT 248. 
..END :










WOOD V. VIRGINIA 374 U.S. 100 


NO. 79.  DECIDED JUNE 10, 1963 - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED. 


WOOD ET AL. V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF APPEALS OF
VIRGINIA FOR RECONSIDERATION IN LIGHT OF PETERSON V. CITY OF
GREENVILLE, 373 U.S. 244. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT ON THE PREMISES STATED IN
HIS SEPARATE OPINION IN PETERSON V. CITY OF GREENVILLE AND AVENT V.
NORTH CAROLINA, 373 U.S., AT 248. 
..END :










MARCHESE V. UNITED STATES 374 U.S. 101 


NO. 362.  DECIDED JUNE 10, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  304 F.2D 154. 


MARCHESE V. UNITED STATES ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA FOR RECONSIDERATION IN LIGHT OF
SANDERS V. UNITED STATES, 373 U.S. 1. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN WOULD DENY CERTIORARI ON THE
BASIS OF THEIR DISSENT IN SANDERS V. UNITED STATES, 373 U.S., AT 23. 
..END :











KELLER V. WISCONSIN EX REL. STATE BAR OF WISCONSIN 374 U.S. 102 


NO. 429.  DECIDED JUNE 10, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  16 WIS. 2D 377, 114
N.W.2D 796. 


KELLER V. WISCONSIN EX REL. STATE BAR OF WISCONSIN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
WISCONSIN. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF WISCONSIN FOR
RECONSIDERATION IN LIGHT OF SPERRY V. FLORIDA EX REL. FLORIDA BAR, 373
U.S. 379. 
..END :













PRICE V. MOSS 374 U.S. 103 


NO. 688.  DECIDED JUNE 10, 1963* - REPORTED BELOW:  207 F. SUPP. 885. 

*TOGETHER WITH NO. 689, OKLAHOMA FARM BUREAU ET AL. V. MOSS ET AL.,
ON APPEAL FROM THE SAME COURT. 


APPEALS DISMISSED BECAUSE THE ORDER OF THE DISTRICT COURT IS NOT
APPEALABLE UNDER 28 U.S.C.  SEC. 1253. 

PRICE ET AL. V. MOSS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEALS ARE DISMISSED AS THE
ORDER OF THE DISTRICT COURT IS NOT APPEALABLE UNDER 28 U.S.C. SEC.
1253. 

MR. JUSTICE BLACK AND MR. JUSTICE GOLDBERG CONCUR IN THE RESULT. 

MR. JUSTICE HARLAN WOULD POSTPONE CONSIDERATION OF THE QUESTION OF
JURISDICTION UNTIL AFTER ARGUMENT ON THE MERITS. 
..END :




LAINO V. NEW YORK 374 U.S. 104 


NO. 992.  DECIDED JUNE 10, 1963 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


LAINO V. NEW YORK. 

APPEAL FROM THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, FOURTH
JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :












HUGGINS V. RAINES 374 U.S. 105 


NO. 251, MISC.  DECIDED JUNE 10, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  372 P.2D 248. 


HUGGINS V. RAINES, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF OKLAHOMA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA FOR
RECONSIDERATION IN LIGHT OF GIDEON V. WAINWRIGHT, 372 U.S. 335, AND
CARNLEY V. COCHRAN, 369 U.S. 506. 
..END :













BENTLEY V. ALASKA 374 U.S. 106 


NO. 647, MISC.  DECIDED JUNE 10, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


BENTLEY V. ALASKA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALASKA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF ALASKA FOR RECONSIDERATION IN
LIGHT OF DOUGLAS V. CALIFORNIA, 372 U.S. 353, LANE V. BROWN, 372 U.S.
477, AND DRAPER V. WASHINGTON, 372 U.S. 487. 
..END :














BENTLEY V. ALASKA 374 U.S. 107 


NO. 648, MISC.  DECIDED JUNE 10, 1963 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


BENTLEY V. ALASKA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALASKA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF ALASKA FOR RECONSIDERATION IN
LIGHT OF BRADY V. MARYLAND, 373 U.S. 83, AND MOONEY V. HOLOHAN, 294
U.S. 103. 
..END :














PETERSON V. WAINWRIGHT 374 U.S. 108 


NO. 754, MISC.  DECIDED JUNE 10, 1963 - CERTIORARI GRANTED; JUDGEMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  145 SO. 2D 857. 


PETERSON V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF FLORIDA FOR A HEARING ON THE
ISSUE OF WHETHER PETITIONER WAS DENIED THE ASSISTANCE OF COUNSEL AT THE
TIME HE ENTERED HIS PLEA OF GUILTY. 
..END :














ARIZONA V. CALIFORNIA 373 U.S. 546 


NO. 8, ORIGINAL.  ARGUED JANUARY 8-11, 1962.  - RESTORED TO CALENDAR FOR
REARGUMENT JUNE 4, 1962.  - REARGUED NOVEMBER 13-14, 1962.  - DECIDED
JUNE 3, 1963. 


THIS ORIGINAL SUIT WAS BROUGHT IN THIS COURT BY THE STATE OF ARIZONA
AGAINST THE STATE OF CALIFORNIA AND SEVEN OF ITS PUBLIC AGENCIES. 
LATER NEVADA, NEW MEXICO, UTAH AND THE UNITED STATES BECAME PARTIES. 
THE BASIC CONTROVERSY IS OVER HOW MUCH WATER EACH STATE HAS A LEGAL
RIGHT TO USE OUT OF THE WATERS OF THE COLORADO RIVER AND ITS
TRIBUTARIES.  A SPECIAL MASTER APPOINTED BY THE COURT CONDUCTED A
LENGTHY TRIAL AND FILED A REPORT CONTAINING HIS FINDINGS, CONCLUSIONS
AND RECOMMENDED DECREE, TO WHICH VARIOUS PARTIES TOOK EXCEPTIONS. 
HELD: 

1.  IN PASSING THE BOULDER CANYON PROJECT ACT, CONGRESS INTENDED TO,
AND DID, CREATE ITS OWN COMPREHENSIVE SCHEME FOR THE APPORTIONMENT
AMONG CALIFORNIA, ARIZONA AND NEVADA OF THE LOWER BASIN'S SHARE OF THE
MAINSTREAM WATERS OF THE COLORADO RIVER, LEAVING EACH STATE HER OWN
TRIBUTARIES.  IT DECIDED THAT A FAIR DIVISION OF THE FIRST 7,500,000
ACRE-FEET OF SUCH MAINSTREAM WATERS WOULD GIVE 4,400,000 ACRE-FEET TO
CALIFORNIA, 2,800,000 TO ARIZONA, AND 300,000 TO NEVADA, AND THAT
ARIZONA AND CALIFORNIA SHOULD EACH GET ONE-HALF OF ANY SURPLUS. 
CONGRESS GAVE THE SECRETARY OF THE INTERIOR ADEQUATE AUTHORITY TO
ACCOMPLISH THIS DIVISION BY GIVING HIM POWER TO MAKE CONTRACTS FOR THE
DELIVERY OF WATER AND BY PROVIDING THAT NO PERSON COULD HAVE WATER
WITHOUT A CONTRACT.  PP. 546-590. 

(A)  APPORTIONMENT AMONG THE LOWER BASIN STATES OF THAT BASIN'S
COLORADO RIVER WATER IS NOT CONTROLLED BY THE DOCTRINE OF EQUITABLE
APPORTIONMENT OR BY THE COLORADO RIVER COMPACT.  PP. 565-567. 

(B)  NO MATTER WHAT WATERS THE COMPACT APPORTIONED, THE PROJECT ACT
ITSELF DEALT ONLY WITH WATER OF THE MAINSTREAM AND RESERVED TO EACH
STATE THE EXCLUSIVE USE OF THE WATERS OF HER OWN TRIBUTARIES.   PP. 567
575. 

(C)  THE LEGISLATIVE HISTORY OF THE ACT, ITS LANGUAGE AND THE SCHEME
ESTABLISHED BY IT FOR THE STORAGE AND DELIVERY OF WATER SHOW THAT
CONGRESS INTENDED TO PROVIDE ITS OWN METHOD FOR A COMPLETE
APPORTIONMENT OF THE LOWER BASIN'S SHARE OF THE MAINSTREAM WATER AMONG
AIRZONA, CALIFORNIA AND NEVADA; AND CONGRESS INTENDED THE SECRETARY OF
THE INTERIOR, THROUGH HIS CONTRACTS UNDER SEC. 5, BOTH TO CARRY OUT THE
ALLOCATION OF THE WATERS OF THE MAIN COLORADO RIVER AMONG THE LOWER
BASIN STATES AND TO DECIDE WHICH USERS WITHIN EACH STATE WOULD GET
WATER.  PP. 575-585. 

(D)  IT IS THE ACT AND THE CONTRACTS MADE BY THE SECRETARY OF THE
INTERIOR UNDER SEC. 5, NOT THE LAW OF PRIOR APPROPRIATION, THAT CONTROL
THE APPORTIONMENT OF WATER AMONG THE STATES; AND THE SECRETARY, IN
CHOOSING BETWEEN THE USERS WITHIN EACH STATE AND IN SETTLING THE TERMS
OF HIS CONTRACTS, IS NOT REQUIRED BY SECS. 14 AND 18 OF THE ACT TO
FOLLOW STATE LAW.  PP. 585-586. 

(E)  SECTION 8 OF THE RECLAMATION ACT DOES NOT REQUIRE THE UNITED
STATES, IN THE DELIVERY OF WATER, TO FOLLOW PRIORITIES LAID DOWN BY
STATE LAW; AND THE SECRETARY IS NOT BOUND BY STATE LAW IN DISPOSING OF
WATER UNDER THE PROJECT ACT.  PP. 586-587. 

(F)  THE GENERAL SAVING LANGUAGE OF SEC. 18 OF THE PROJECT ACT DOES
NOT BIND THE SECRETARY BY STATE LAW OR NULLIFY THE CONTRACT POWER
EXPRESSLY CONFERRED UPON HIM BY SEC. 5.  PP. 587-588. 

(G)  CONGRESS HAS PUT THE SECRETARY OF THE INTERIOR IN CHARGE OF A
WHOLE NETWORK OF USEFUL PROJECTS CONSTRUCTED BY THE FEDERAL GOVERNMENT
UP AND DOWN THE COLORADO RIVER, AND IT HAS ENTRUSTED HIM WITH
SUFFICIENT POWER, PRINCIPALLY THE SEC. 5 CONTRACT POWER, TO DIRECT,
MANAGE AND COORDINATE THEIR OPERATION.  THIS POWER MUST BE CONSTRUED TO
PERMIT HIM TO ALLOCATE AND DISTRIBUTE THE WATERS OF THE MAINSTREAM OF
THE COLORADO RIVER WITHIN THE BOUNDARIES SET DOWN BY THE ACT.  PP. 588
590. 

2.  CERTAIN PROVISIONS IN THE SECRETARY'S CONTRACTS ARE SUSTAINED,
WITH ONE EXCEPTION.  PP. 590-592. 

(A)  THE SECRETARY'S CONTRACTS WITH ARIZONA AND NEVADA ARE SUSTAINED,
INSOFAR AS THEY PROVIDE THAT ANY WATERS DIVERTED BY THOSE STATES OUT OF
THE MAINSTREAM ABOVE LAKE MEAD MUST BE CHARGED TO THEIR RESPECTIVE
LOWER BASIN APPORTIONMENTS; BUT HE CANNOT REDUCE WATER DELIVERIES TO
THOSE STATES BY THE AMOUNT OF THEIR USES FROM TRIBUTARIES ABOVE LAKE
MEAD, SINCE CONGRESS INTENDED TO APPORTION ONLY THE MAINSTREAM, LEAVING
TO EACH STATE HER OWN TRIBUTARIES.  PP. 590-591. 

(B)  THE FACT THAT THE SECRETARY HAS MADE A CONTRACT DIRECTLY WITH
THE STATE OF NEVADA, THROUGH HER COLORADO RIVER COMMISSION, FOR THE
DELIVERY OF WATER DOES NOT IMPAIR THE SECRETARY'S POWER TO REQUIRE
NEVADA WATER USERS, OTHER THAN THE STATE, TO MAKE FURTHER CONTRACTS. 
PP. 591-592. 

3.  IN CASE OF WATER STORAGE, TH SECRETARY IS NOT BOUND TO REQUIRE A
PRO RATE SHARING OF SHORTAGES.  HE MUST FOLLOW THE STANDARDS SET OUT IN
THE ACT; BUT HE IS FREE TO CHOOSE AMONG THE RECONGIZED METHODS OF
APPORTIONMENT OR TO DEVISE REASONABLE METHODS OF HIS OWN, SINCE
CONGRESS HAS GIVEN HIM FULL POWER TO CONTROL, MANAGE AND OPERATE THE
GOVERNMENT'S COLORADO RIVER WORKS AND TO MAKE CONTRACTS FOR THE SALE
AND DELIVERY OF WATER ON SUCH TERMS AS ARE NOT PROHIBITED BY THE ACT. 
PP. 592-594. 

4.  WITH RESPECT TO THE CONFLICTING CLAIMS OF ARIZONA AND NEW MEXICO
TO WATER IN THE GILA RIVER, THE COMPROMISE SETTLEMENT AGREED UPON BY
THOSE STATES AND INCORPORATED IN THE MASTER'S RECOMMENDED DECREE IS
ACCEPTED BY THIS COURT.  PP. 594-595. 

5.  AS TO THE CLAIMS ASSERTED BY THE UNITED STATES TO WATERS IN THE
MAIN RIVER AND SOME OF ITS TRIBUTARIES FOR USE ON INDIAN RESERVATIONS,
NATIONAL FORESTS, RECREATIONAL AND WILDLIFE AREAS AND OTHER GOVERNMENT
LANDS AND WORKS, THIS COURT APPROVES THE MASTER'S DECISION AS TO WHICH
CLAIMS REQUIRED ADJUDICATION, AND IT APPROVES THE DECREE HE RECOMMENDED
FOR THE GOVERNMENT CLAIMS HE DID DECIDE.  PP. 595-601. 

(A)  THIS COURT SUSTAINS THE MASTER'S FINDING THAT, WHEN THE UNITED
STATES CREATED THE CHEMEHUEVI, COCOPAH, YUMA, COLORADO RIVER AND FORT
MOHAVE INDIAN RESERVATIONS IN ARIZONA, CALIFORNIA AND NEVADA, OR ADDED
TO THEM, IT RESERVED NOT ONLY THE LAND BUT ALSO THE USE OF ENOUGH WATER
FROM THE COLORADO RIVER TO IRRIGATE THE IRRIGABLE PORTIONS OF THE
RESERVED LANDS.  PP. 595-597. 

(1)  THE DOCTRINE OF EQUITABLE APPORTIONMENT SHOULD NOT BE USED TO
DIVIDE THE WATER BETWEEN THE INDIANS AND THE OTHER PEOPLE IN THE STATE
OF ARIZONA.  PP. 597. 

(2)  UNDER ITS BROAD POWERS TO REGULATE NAVIGABLE WATERS UNDER THE
COMMERCE CLAUSE AND TO REGULATE GOVERNMENT LANDS UNDER ART. IV, SEC. 3,
OF THE CONSTITUTION, THE UNITED STATES HAD POWER TO RESERVE WATER
RIGHTS FOR ITS RESERVATIONS AND ITS PROPERTY.  PP. 597-598. 

(3)  THE RESERVATIONS OF LAND AND WATER ARE NOT INVALID THOUGH THEY
WERE ORIGINALLY SET APART BY EXECUTIVE ORDER.  P. 598. 

(4)  THE UNITED STATES RESERVED THE WATER RIGHTS FOR THE INDIANS,
EFFECTIVE AS OF THE TIME THE INDIAN RESERVATIONS WERE CREATED, AND
THESE WATER RIGHTS, HAVING VESTED BEFORE THE ACT BECAME EFFECTIVE IN
1929, ARE "PRESENT PERFECTED RIGHTS" AND AS SUCH ARE ENTITLED TO
PRIORITY UNDER THE ACT.  PP. 598-600. 

(5)  THIS COURT SUSTAINS THE MASTER'S CONCLUSIONS THAT ENOUGH WATER
WAS INTENDED TO BE RESERVED TO SATISFY THE FUTURE, AS WELL AS THE
PRESENT, NEEDS OF THE INDIAN RESERVATIONS AND THAT ENOUGH WATER WAS
RESERVED TO IRRIGATE ALL THE PRACTICABLY IRRIGABLE ACREAGE ON THE
RESERVATIONS, AND ALSO HIS FINDINGS AS TO THE VARIOUS ACREAGES OF
IRRIGABLE LAND EXISTING ON THE DIFFERENT RESERVATIONS.  PP. 600-601. 

(B)  THIS COURT DISAGREES WITH THE MASTER'S DECISION TO DETERMINE THE
DISPUTED BOUNDARIES OF THE COLORADO RIVER INDIAN RESERVATION AND THE
FORT MOHAVE INDIAN RESERVATION, SINCE IT IS NOT NECESSARY TO RESOLVE
THOSE DISPUTES HERE.  P. 601. 

(C) THIS COURT AGREES WITH THE MASTER'S CONCLUSIONS THAT THE UNITED
STATES INTENDED TO RESERVE WATER SUFFICIENT FOR THE FUTURE REQUIREMENTS
OF THE LAKE MEAD NATIONAL RECREATIONAL AREA, THE HAVASU LAKE NATIONAL
WILDLIFE REFUGE, THE IMPERIAL NATIONAL WILDLIFE REFUGE AND THE GILA
NATIONAL FOREST.  P. 601. 

(D)  THIS COURT REJECTS THE CLAIM OF THE UNITED STATES THAT IT IS
ENTITLED TO THE USE, WITHOUT CHARGE AGAINST ITS CONSUMPTION, OF ANY
WATERS THAT WOULD HAVE BEEN WASTED BUT FOR SALVAGE BY THE GOVERNMENT ON
ITS WILDLIFE PRESERVES.  P. 601. 

(E)  THIS COURT AGREES WITH THE MASTER THAT ALL USES OF MAINSTREAM
WATER WITHIN A STATE ARE TO BE CHARGED AGAINST THAT STATE'S
APPORTIONMENT, WHICH, OF COURSE, INCLUDES USES BY THE UNITED STATES. 
P. 601. 

ARIZONA V. CALIFORNIA ET AL. 

ON EXCEPTIONS TO SPECIAL MASTER'S REPORT AND RECOMMENDED DECREE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1952 THE STATE OF ARIZONA INVOKED THE ORIGINAL JURISDICTION OF
THIS COURT (FN1) BY FILING A COMPLAINT AGAINST THE STATE OF CALIFORNIA
AND SEVEN OF ITS PUBLIC AGENCIES.  (FN2)  LATER, NEVADA, NEW MEXICO,
UTAH, AND THE UNITED STATES WERE ADDED AS PARTIES EITHER VOLUNTARILY OR
ON MOTION.  (FN3)  THE BASIC CONTROVERSY IN THE CASE IS OVER HOW MUCH
WATER EACH STATE HAS A LEGAL RIGHT TO USE OUT OF THE WATERS OF THE
COLORADO RIVER AND ITS TRIBUTARIES.  AFTER PRELIMINARY PLEADINGS, WE
REFERRED THE CASE TO GEORGE I. HAIGHT, ESQUIRE, AND UPON HIS DEATH IN
1955 TO SIMON H. RIFKIND, ESQUIRE, AS SPECIAL MASTER TO TAKE EVIDENCE,
FIND FACTS, STATE CONCLUSIONS OF LAW, AND RECOMMEND A DECREE, ALL
"SUBJECT TO CONSIDERATION, REVISION, OR APPROVAL BY THE COURT."  (FN4)
THE MASTER CONDUCTED A TRIAL LASTING FROM JUNE 14, 1956, TO AUGUST 28,
1958, DURING WHICH 340 WITNESSES WERE HEARD ORALLY OR BY DEPOSITION,
THOUSANDS OF EXHIBITS WERE RECEIVED, AND 25,000 PAGES OF TRANSCRIPT
WERE FILLED.  FOLLOWING MANY MOTIONS, ARGUMENTS, AND BRIEFS, THE MASTER
IN A 433-PAGE VOLUME REPORTED HIS FINDINGS, CONCLUSIONS, AND
RECOMMENDED DECREE, RECEIVED BY THE COURT ON JANUARY 16, 1961.  (FN5)
THE CASE HAS BEEN EXTENSIVELY BRIEFED HERE AND ORALLY ARGUED TWICE, THE
FIRST TIME ABOUT 16 HOURS, THE SECOND, OVER SIX.  AS WE SEE THIS CASE,
THE QUESTION OF EACH STATE'S SHARE OF THE WATERS OF THE COLORADO AND
ITS TRIBUTARIES TURNS ON THE MEANING AND THE SCOPE OF THE BOULDER
CANYON PROJECT ACT PASSED BY CONGRESS IN 1928.  (FN6)  THAT MEANING AND
SCOPE CAN BE BETTER UNDERSTOOD WHEN THE ACT IS SET AGAINST ITS
BACKGROUND - THE GRAVITY OF THE SOUTHWEST'S WATER PROBLEMS; THE
INABILITY OF LOCAL GROUPS OR INDIVIDUAL STATES TO DEAL WITH THESE
ENORMOUS PROBLEMS; THE CONTINUED FAILURE OF THE STATES TO AGREE ON HOW
TO CONSERVE AND DIVIDE THE WATERS; AND THE ULTIMATE ACTION BY CONGRESS
AT THE REQUEST OF THE STATES CREATING A GREAT SYSTEM OF DAMS AND PUBLIC
WORKS NATIONALLY BUILT, CONTROLLED, AND OPERATED FOR THE PURPOSE OF
CONSERVING AND DISTRIBUTING THE WATER. 

THE COLORADO RIVER ITSELF RISES IN THE MOUNTAINS OF COLORADO AND
FLOWS GENERALLY IN A SOUTHWESTERLY DIRECTION FOR ABOUT 1,300 MILES
THROUGH COLORADO, UTAH, AND ARIZONA AND ALONG THE ARIZONA-NEVADA AND
ARIZONA-CALIFORNIA BOUNDARIES, AFTER WHICH IT PASSES INTO MEXICO AND
EMPTIES INTO THE MEXICAN WATERS OF THE GULF OF CALIFORNIA.  ON ITS WAY
TO THE SEA IT RECEIVES TRIBUTARY WATERS FROM WYOMING, COLORADO, UTAH,
NEVADA, NEW MEXICO, AND ARIZONA.  THE RIVER AND ITS TRIBUTARIES FLOW IN
A NATURAL BASIN ALMOST SURROUNDED BY LARGE MOUNTAIN RANGES AND DRAIN
242,000 SQUARE MILES, AN AREA ABOUT 900 MILES LONG FROM NORTH TO SOUTH
AND 300 TO 500 MILES WIDE FROM EAST TO WEST - PRACTICALLY ONE-TWELFTH
THE AREA OF THE CONTINENTAL UNITED STATES EXCLUDING ALASKA.  MUCH OF
THIS LARGE BASIN IS SO ARID THAT IT IS, AS IT ALWAYS HAS BEEN, LARGELY
DEPENDENT UPON MANAGED USE OF THE WATERS OF THE COLORADO RIVER SYSTEM
TO MAKE IT PRODUCTIVE AND INHABITABLE.  THE MASTER REFERS TO
ARCHAEOLOGICAL EVIDENCE THAT AS LONG AS 2,000 YEARS AGO THE ANCIENT
HOHOKAM TRIBE BUILT AND MAINTAINED IRRIGATION CANALS NEAR WHAT IS NOW
PHOENIX, ARIZONA, AND THAT AMERICAN INDIANS WERE PRACTICING IRRIGATION
IN THAT REGION AT THE TIME WHITE MEN FIRST EXPLORED IT.  IN THE SECOND
HALF OF THE NINETEENTH CENTURY A GROUP OF PEOPLE INTERESTED IN
CALIFORNIA'S IMPERIAL VALLEY CONCEIVED PLANS TO DIVERT WATER FROM THE
MAINSTREAM OF THE COLORADO TO GIVE LIFE AND GROWTH TO THE PARCHED AND
BARREN SOIL OF THAT VALLEY.  AS THE MOST FEASIBLE ROUTE WAS THROUGH
MEXICO, A MEXICAN CORPORATION WAS FORMED AND A CANAL DUG PARTLY IN
MEXICO AND PARTLY IN THE UNITED STATES.  DIFFICULTIES WHICH AROSE
BECAUSE THE CANAL WAS SUBJECT TO THE SOVEREIGNTY OF BOTH COUNTRIES
GENERATED HOPES IN THIS COUNTRY THAT SOME DAY THERE WOULD BE A CANAL
WHOLLY WITHIN THE UNITED STATES, AN ALL-AMERICAN CANAL.   (FN7) 

DURING THE LATTER PART OF THE NINETEENTH AND THE FIRST PART OF THE
TWENTIETH CENTURIES, PEOPLE IN THE SOUTHWEST CONTINUED TO SEEK NEW WAYS
TO SATISFY THEIR WATER NEEDS, WHICH BY THAT TIME WERE INCREASING
RAPIDLY AS NEW SETTLERS MOVED INTO THIS FAST-DEVELOPING REGION.  BUT
NONE OF THE MORE OR LESS PRIMITIVE DIVERSIONS MADE FROM THE MAINSTREAM
OF THE COLORADO CONSERVED ENOUGH WATER TO MEET THE GROWING NEEDS OF THE
BASIN.  THE NATURAL FLOW OF THE COLORADO WAS TO ERRATIC, THE RIVER AT
MANY PLACES IN CANYONS TOO DEEP, AND THE ENGINEERING AND ECONOMIC
HURDLES TOO GREAT FOR SMALL FARMERS, LARGER GROUPS, OR EVEN STATES TO
BUILD STORAGE DAMS, CONSTRUCT CANALS, AND INSTALL THE EXPENSIVE WORKS
NECESSARY FOR A DEPENDABLE YEARROUND WATER SUPPLY.  NOR WERE DROUGHTS
THE BASIN'S ONLY PROBLEM; SPRING FLOODS DUE TO MELTING SNOWS AND
SEASONAL STORMS WERE A RECURRING MENACE, ESPECIALLY DISASTROUS IN
CALIFORNIA'S IMPERIAL VALLEY WHERE, EVEN AFTER THE MEXICAN CANAL
PROVIDED A MORE DEPENDABLE WATER SUPPLY, THE THREAT OF FLOOD REMAINED
AT LEAST AS SERIOUS AS BEFORE.  ANOTHER TROUBLESOME PROBLEM WAS THE
EROSION OF LAND AND THE DEPOSIT OF SILT WHICH FOULED WATERS, CHOKED
IRRIGATION WORKS, AND DAMAGED GOOD FARMLAND AND CROPS. 

IT IS NOT SURPRISING THAT THE PRESSING NECESSITY TO TRANSFORM THE
ERRATIC AND OFTEN DESTRUCTIVE FLOW OF THE COLORADO RIVER INTO A
CONTROLLED AND DEPENDABLE WATER SUPPLY DESPERATELY NEEDED IN SO MANY
STATES BEGAN TO BE TALKED ABOUT AND RECOGNIZED AS FAR MORE THAN A
PURELY LOCAL PROBLEM WHICH COULD BE SOLVED ON A FARMER-BY-FARMER, GROUP
BY-GROUP, OR EVEN STATE-BY-STATE BASIS, DESIRABLE AS THIS KIND OF
SOLUTION MIGHT HAVE BEEN.  THE INADEQUACY OF A LOCAL SOLUTION WAS
RECOGNIZED IN THE REPORT OF THE ALL-AMERICAN CANAL BOARD OF THE UNITED
STATES DEPARTMENT OF THE INTERIOR ON JULY 22, 1919, WHICH DETAILED THE
WIDESPREAD BENEFITS THAT COULD BE EXPECTED FROM CONSTRUCTION BY THE
UNITED STATES OF A LARGE RESERVOIR ON THE MAINSTREAM OF THE COLORADO
AND AN ALL-AMERICAN CANAL TO THE IMPERIAL VALLEY.  (FN8)  SOME MONTHS
LATER, MAY 18, 1920, CONGRESS PASSED A BILL OFFERED BY CONGRESSMAN
KINKAID OF NEBRASKA DIRECTING THE SECRETARY OF THE INTERIOR TO MAKE A
STUDY AND REPORT OF DIVERSIONS WHICH MIGHT BE MADE FROM THE COLORADO
RIVER FOR IRRIGATION IN THE IMPERIAL VALLEY.  (FN9)  THE FALL-DAVIS
REPORT, (FN10) SUBMITTED TO CONGRESS IN COMPLIANCE WITH THE KINKAID
ACT, BEGAN BY DECLARING, "THE CONTROL OF THE FLOODS AND DEVELOPMENT OF
THE RESOURCES OF THE COLORADO RIVER ARE PECULIARLY NATIONAL PROBLEMS
...  " (FN11) AND THEN WENT ON TO GIVE REASONS WHY THIS WAS SO,
CONCLUDING WITH THE STATEMENT THAT THE JOB WAS SO BIG THAT ONLY THE
FEDERAL GOVERNMENT COULD DO IT. (FN12)  QUITE NATURALLY, THEREFORE, THE
REPORT RECOMMENDED THAT THE UNITED STATES CONSTRUCT AS A GOVERNMENT
PROJECT NOT ONLY AN ALL-AMERICAN CANAL FROM THE COLORADO RIVER TO THE
IMPERIAL VALLEY BUT ALSO A DAM AND RESERVOIR AT OR NEAR BOULDER
CANYON.  (FN13) 

THE PROSPECT THAT THE UNITED STATES WOULD UNDERTAKE TO BUILD AS A
NATIONAL PROJECT THE NECESSARY WORKS TO CONTROL FLOODS AND STORE RIVER
WATERS FOR IRRIGATION WAS APPARENTLY A WELCOME ONE FOR THE BASIN
STATES.  BUT IT BROUGHT TO LIFE STRONG FEARS IN THE NORTHERN BASIN
STATES THAT ADDITIONAL WATERS MADE AVAILABLE BY THE STORAGE AND CANAL
PROJECTS MIGHT BE GOBBLED UP IN PERPETUITY BY FASTER GROWING LOWER
BASIN AREAS, PARTICULARLY CALIFORNIA, BEFORE THE UPPER STATES COULD
APPROPRIATE WHAT THEY BELIEVED TO BE THEIR FAIR SHARE.  THESE FEARS
WERE NOT WITHOUT FOUNDATION, SINCE THE LAW OF PRIOR APPROPRIATION
PREVAILED IN MOST OF THE WESTERN STATES.  (FN14)  UNDER THAT LAW THE
ONE WHO FIRST APPROPRIATES WATER AND PUTS IT TO BENEFICIAL USE THEREBY
ACQUIRES A VESTED RIGHT TO CONTINUE TO DIVERT AND USE THAT QUANTITY OF
WATER AGAINST ALL CLAIMANTS JUNIOR TO HIM IN POINT OF TIME.  (FN15)
"FIRST IN TIME, FIRST IN RIGHT" IS THE SHORTHAND EXPRESSION OF THIS
LEGAL PRINCIPLE.  IN 1922, ONLY FOUR MONTHS AFTER THE FALL-DAVIS
REPORT, THIS COURT IN WYOMING V. COLORADO, 259 U.S. 419, HELD THAT THE
DOCTRINE OF PRIOR APPROPRIATION COULD BE GIVEN INTERSTATE EFFECT. 
(FN16)  THIS DECISION INTENSIFIED FEARS OF UPPER BASIN STATES THAT THEY
WOULD NOT GET THEIR FAIR SHARE OF COLORADO RIVER WATER.  (FN17)  IN
VIEW OF CALIFORNIA'S PHENOMENAL GROWTH, THE UPPER BASIN STATES HAD
PARTICULAR REASON TO FEAR THAT CALIFORNIA, BY APPROPRIATING AND USING
COLORADO RIVER WATER BEFORE THE UPPER STATES, WOULD, UNDER THE
INTERSTATE APPLICATION OF THE PRIOR APPROPRIATION DOCTRINE, BE "FIRST
IN TIME" AND THEREFORE "FIRST IN RIGHT."  NOR WERE SUCH FEARS LIMITED
TO THE NORTHERNMOST STATES.  NEVADA, UTAH, AND ESPECIALLY ARIZONA WERE
ALL APPREHENSIVE THAT CALIFORNIA'S RAPID DECLARATION OF APPROPRIATIVE
CLAIMS WOULD DEPRIVE THEM OF THEIR JUST SHARE OF BASIN WATER AVAILABLE
AFTER CONSTRUCTION OF THE PROPOSED UNITED STATES PROJECT.  IT SEEMED
FOR A TIME THAT THESE FEARS WOULD KEEP THE STATES FROM AGREEING ON ANY
KIND OF DIVISION OF THE RIVER WATERS.  HOPING TO PREVENT "CONFLICTS"
AND "EXPENSIVE LITIGATION" WHICH WOULD HOLD UP OR PREVENT THE
TREMENDOUS BENEFITS EXPECTED FROM EXTENSIVE FEDERAL DEVELOPMENT OF THE
RIVER, (FN18) THE BASIN STATES REQUESTED AND CONGRESS PASSED AN ACT ON
AUGUST 19, 1921, GIVING THE STATES CONSENT TO NEGOTIATE AND ENTER INTO
A COMPACT FOR THE "EQUITABLE DIVISION AND APPORTIONMENT  ...  OF THE
WATER SUPPLY OF THE COLORADO RIVER."  (FN19) 

PURSUANT TO THIS CONGRESSIONAL AUTHORITY, THE SEVEN STATES APPOINTED
COMMISSIONERS WHO, AFTER NEGOTIATING FOR THE BETTER PART OF A YEAR,
REACHED AN AGREEMENT AT SANTA FE, NEW MEXICO, ON NOVEMBER 24, 1922. 
THE AGREEMENT, KNOWN AS THE COLORADO RIVER COMPACT, (FN20) FAILED TO
FULFILL THE HOPE OF CONGRESS THAT THE STATES WOULD THEMSELVES AGREE ON
EACH STATE'S SHARE OF THE WATER.  THE MOST THE COMMISSIONERS WERE ABLE
TO ACCOMPLISH IN THE COMPACT WAS TO ADOPT A COMPROMISE SUGGESTION OF
SECRETARY OF COMMERCE HERBERT HOOVER, SPECIALLY DESIGNATED AS UNITED
STATES REPRESENTATIVE.  (FN21) THIS COMPROMISE DIVIDES THE ENTIRE BASIN
INTO TWO PARTS, THE UPPER BASIN AND THE LOWER BASIN, SEPARATED AT A
POINT ON THE RIVER IN NORTHERN ARIZONA KNOWN AS LEE FERRY.  (A MAP
SHOWING THE TWO BASINS AND OTHER POINTS OF INTEREST IN THIS CONTROVERSY
IS PRINTED AS AN APPENDIX FACING P. 602.)  602.)  ARTICLE IIIA) OF THE
COMPACT APPORTIONS TO EACH BASIN IN PERPETUITY 7,500,000 ACRE-FEET OF
WATER (FN22) A YEAR FROM THE COLORADO RIVER SYSTEM, DEFINED IN ARTICLE
IIA) AS "THE COLORADO RIVER AND ITS TRIBUTARIES WITHIN THE UNITED
STATES OF AMERICA."  IN ADDITION, ARTICLE IIIB) GIVES THE LOWER BASIN
"THE RIGHT TO INCREASE ITS BENEFICIAL CONSUMPTIVE USE (FN23) OF SUCH
WATERS BY ONE MILLION ACRE-FEET PER ANNUM."  ARTICLE IIIC) PROVIDES
THAT FUTURE MEXICAN WATER RIGHTS RECOGNIZED BY THE UNITED STATES SHALL
BE SUPPLIED FIRST OUT OF SURPLUS OVER AND ABOVE THE AGGREGATE OF THE
QUANTITIES SPECIFIED IN (A) AND (B), AND IF THIS SURPLUS IS NOT ENOUGH
THE DEFICIENCY SHALL BE BORNE EQUALLY BY THE TWO BASINS.  ARTICLE IIID)
REQUIRES THE UPPER BASIN NOT TO DEPLETE THE LEE FERRY FLOW BELOW AN
AGGREGATE OF 75,000,000 ACRE-FEET FOR ANY 10 CONSECUTIVE YEARS. 
ARTICLE IIIF) AND (G) PROVIDE A WAY FOR FURTHER APPORTIONMENT BY A
COMPACT OF "COLORADO RIVER SYSTEM" WATERS AT ANY TIME AFTER OCTOBER 1,
1963.  WHILE THESE ALLOCATIONS QUIETED RIVALRIES BETWEEN THE UPPER AND
LOWER BASINS, MAJOR DIFFERENCES BETWEEN THE STATES IN THE LOWER BASIN
CONTINUED.  FAILURE OF THE COMPACT TO DETERMINE EACH STATE'S SHARE OF
THE WATER LEFT NEVADA AND ARIZONA WITH THEIR FEARS THAT THE LAW OF
PRIOR APPROPRIATION WOULD BE NOT A PROTECTION BUT A MENACE BECAUSE
CALIFORNIA COULD USE THAT LAW TO GET FOR HERSELF THE LION'S SHARE OF
THE WATERS ALLOTTED TO THE LOWER BASIN.  MOREOVER, ARIZONA, BECAUSE OF
HER PARTICULARLY STRONG INTEREST IN THE GILA, INTENSELY RESENTED THE
COMPACT'S INCLUSION OF THE COLORADO RIVER TRIBUTARIES IN ITS ALLOCATION
SCHEME AND WAS BITTERLY HOSTILE TO HAVING ARIZONA TRIBUTARIES, AGAIN
PARTICULARLY THE GILA, FORCED TO CONTRIBUTE TO THE MEXICAN BURDEN. 
LARGELY FOR THESE REASONS, ARIZONA ALONE, OF ALL THE STATES IN BOTH
BASINS, REFUSED TO RATIFY THE COMPACT.  (FN24) 

SEEKING MEANS WHICH WOULD PERMIT RATIFICATION BY ALL SEVEN BASIN
STATES, THE GOVERNORS OF THOSE STATES MET AT DENVER IN 1925 AND AGAIN
IN 1927.  AS A RESULT OF THESE MEETINGS THE GOVERNORS OF THE UPPER
STATES SUGGESTED, AS A FAIR APPORTIONMENT OF WATER AMONG THE LOWER
BASIN STATES, THAT OUT OF THE AVERAGE ANNUAL DELIVERY OF WATER AT LEE
FERRY REQUIRED BY THE COMPACT - 7,500,000 ACRE-FEET - NEVADA BE GIVEN
300,000 ACRE-FEET, ARIZONA 3,000,000, AND CALIFORNIA 4,200,000, AND
THAT UNAPPORTIONED WATERS, SUBJECT TO REAPPORTIONMENT AFTER 1963, BE
SHARED EQUALLY BY ARIZONA AND CALIFORNIA.  EACH LOWER BASIN STATE WOULD
HAVE "THE EXCLUSIVE BENEFICIAL CONSUMPTIVE USE OF SUCH TRIBUTARIES
WITHIN ITS BOUNDARIES BEFORE THE SAME EMPTY INTO THE MAIN STREAM,"
EXCEPT THAT ARIZONA TRIBUTARY WATERS IN EXCESS OF 1,000,000 ACRE-FEET
COULD UNDER SOME CIRCUMSTANCES BE SUBJECT TO DIMINUTION BY REASON OF A
UNITED STATES TREATY WITH MEXICO.  THIS PROPOSAL FOUNDERED BECAUSE
CALIFORNIA HELD OUT FOR 4,600,000 ACRE-FEET INSTEAD OF 4,200,000 (FN25)
AND BECAUSE ARIZONA HELD OUT FOR COMPLETE EXEMPTION OF ITS TRIBUTARIES
FROM ANY PART OF THE MEXICAN BURDEN.  (FN26)    BETWEEN 1922 AND 1927
CONGRESSMAN PHILIP SWING AND SENATOR HIRAM JOHNSON, BOTH OF CALIFORNIA,
MADE THREE ATTEMPTS TO HAVE SWING-JOHNSON BILLS ENACTED, AUTHORIZING
CONSTRUCTION OF A DAM IN THE CANYON SECTION OF THE COLORADO RIVER AND
AN ALL-AMERICAN CANAL.  (FN27)  THESE BILLS WOULD HAVE CARRIED OUT THE
ORIGINAL FALL-DAVIS REPORT'S RECOMMENDATIONS THAT THE RIVER PROBLEM BE
RECOGNIZED AND TREATED AS NATIONAL, NOT LOCAL.  ARIZONA'S SENATORS AND
CONGRESSMEN, STILL INSISTING UPON A DEFINITE GUARANTY OF WATER FROM THE
MAINSTREAM, BITTERLY FOUGHT THESE PROPOSALS BECAUSE THEY FAILED TO
PROVIDE FOR EXCLUSIVE USE OF HER OWN TRIBUTARIES, PARTICULARLY THE
GILA, AND FOR EXEMPTION OF THESE TRIBUTARIES FROM THE MEXICAN BURDEN. 

FINALLY, THE FOURTH SWING-JOHNSON BILL PASSED BOTH HOUSES AND BECAME
THE BOULDER CANYON PROJECT ACT OF DECEMBER 21, 1928, 45 STAT. 1057. 
THE ACT AUTHORIZED THE SECRETARY OF THE INTERIOR TO CONSTRUCT, OPERATE,
AND MAINTAIN A DAM AND OTHER WORKS IN ORDER TO CONTROL FLOODS, IMPROVE
NAVIGATION, REGULATE THE RIVER'S FLOW, STORE AND DISTRIBUTE WATERS FOR
RECLAMATION AND OTHER BENEFICIAL USES, AND GENERATE ELECTRICAL POWER. 
(FN28)  THE PROJECTS AUTHORIZED BY THE ACT WERE THE SAME AS THOSE
PROVIDED FOR IN THE PRIOR DEFEATED MEASURES, BUT IN OTHER SIGNIFICANT
RESPECTS THE ACT WAS STRIKINGLY DIFFERENT.  THE EARLIER BILLS HAD
OFFERED NO METHOD WHATEVER OF APPORTIONING THE WATERS AMONG THE STATES
OF THE LOWER BASIN.  THE ACT AS FINALLY PASSED DID PROVIDE SUCH A
METHOD, AND, AS WE VIEW IT, THE METHOD CHOSEN WAS A COMPLETE STATUTORY
APPORTIONMENT INTENDED TO PUT AN END TO THE LONG-STANDING DISPUTE OVER
COLORADO RIVER WATERS.  TO PROTECT THE UPPER BASIN AGAINST CALIFORNIA
SHOULD ARIZONA STILL REFUSE TO RATIFY THE COMPACT, (FN29) SEC. 4(A) OF
THE ACT AS FINALLY PASSED PROVIDED THAT, IF FEWER THAN SEVEN STATES
RATIFIED WITHIN SIX MONTHS, THE ACT SHOULD NOT TAKE EFFECT UNLESS SIX
STATES INCLUDING CALIFORNIA RATIFIED AND UNLESS CALIFORNIA, BY ITS
LEGISLATURE, AGREED "IRREVOCABLY AND UNCONDITIONALLY  ...  AS AN
EXPRESS COVENANT" TO A LIMIT ON ITS ANNUAL CONSUMPTION OF COLORADO
RIVER WATER OF "FOUR MILLION FOUR HUNDRED THOUSAND ACRE-FEET OF THE
WATERS APPORTIONED TO THE LOWER BASIN STATES BY PARAGRAPH (A) OF
ARTICLE III OF THE COLORADO RIVER COMPACT, PLUS NOT MORE THAN ONE-HALF
OF ANY EXCESS OR SURPLUS WATERS UNAPPORTIONED BY SAID COMPACT." 
CONGRESS IN THE SAME SECTION SHOWED ITS CONTINUING DESIRE TO HAVE
CALIFORNIA, ARIZONA, AND NEVADA SETTLE THEIR OWN DIFFERENCES BY
AUTHORIZING THEM TO MAKE AN AGREEMENT APPORTIONING TO NEVADA 300,000
ACRE-FEET, AND TO ARIZONA 2,800,000 ACRE-FEET PLUS HALF OF ANY SURPLUS
WATERS UNAPPORTIONED BY THE COMPACT.  THE PERMITTED AGREEMENT ALSO WAS
TO ALLOW ARIZONA EXCLUSIVE USE OF THE GILA RIVER, WHOLLY FREE FROM ANY
MEXICAN OBLIGATION, A POSITION ARIZONA HAD TAKEN FROM THE BEGINNING. 
THE STORED WATERS.  THE SECRETARY OF THE INTERIOR WAS AUTHORIZED BY
SEC. 5 "UNDER SUCH GENERAL REGULATIONS AS HE MAY PRESCRIBE, TO CONTRACT
FOR THE STORAGE OF WATER IN SAID RESERVOIR AND FOR THE DELIVERY THEREOF
AT SUCH POINTS ON THE RIVER AND ON SAID CANAL AS MAY BE AGREED UPON,
FOR IRRIGATION AND DOMESTIC USES  ...  ."  SECTION 5 REQUIRED THESE
CONTRACTS TO BE "FOR PERMANENT SERVICE" AND FURTHER PROVIDED, "NO
PERSON SHALL HAVE OR BE ENTITLED TO HAVE THE USE FOR ANY PURPOSE OF THE
WATER STORED AS AFORESAID EXCEPT BY CONTRACT MADE AS HEREIN STATED." 
TO ANY COMPACT DIVIDING THE BENEFITS OF THE WATER BETWEEN ARIZONA,
CALIFORNIA, AND NEVADA, OR ANY TWO OF THEM, APPROVED BY CONGRESS ON OR
BEFORE JANUARY 1, 1929, BUT THAT ANY SUCH COMPACT APPROVED AFTER THAT
DATE SHOULD BE "SUBJECT TO ALL CONTRACTS, IF ANY, MADE BY THE SECRETARY
OF THE INTERIOR UNDER SECTION 5 HEREOF PRIOR TO THE DATE OF SUCH
APPROVAL AND CONSENT BY CONGRESS." 

THE PROJECT ACT BECAME EFFECTIVE ON JUNE 25, 1929, BY PRESIDENTIAL
PROCLAMATION, (FN30) AFTER SIX STATES, INCLUDING CALIFORNIA, HAD
RATIFIED THE COLORADO RIVER COMPACT AND THE CALIFORNIA LEGISLATURE HAD
ACCEPTED THE LIMITATION OF 4,400,000 ACRE-FEET (FN31) AS REQUIRED BY
THE ACT.  NEITHER THE THREE STATES NOR ANY TWO OF THEM EVER ENTERED
INTO ANY APPORTIONMENT COMPACT AS AUTHORIZED BY SECS. 4(A) AND 8(B). 
AFTER THE CONSTRUCTION OF BOULDER DAM THE SECRETARY OF THE INTERIOR,
PURPORTING TO ACT UNDER THE AUTHORITY OF THE PROJECT ACT, MADE
CONTRACTS WITH VARIOUS WATER USERS IN CALIFORNIA FOR 5,362,000 ACRE
FEET, WITH NEVADA FOR 300,000 ACRE-FEET, AND WITH ARIZONA FOR 2,800,000
ACRE-FEET OF WATER FROM THAT STORED AT LAKE MEAD. 

THE SPECIAL MASTER APPOINTED BY THIS COURT FOUND THAT THE COLORADO
RIVER COMPACT, THE LAW OF PRIOR APPROPRIATION, AND THE DOCTRINE OF
EQUITABLE APPORTIONMENT - BY WHICH DOCTRINE THIS COURT IN THE ABSENCE
OF STATUTE RESOLVES INTERSTATE CLAIMS ACCORDING TO THE EQUITIES - DO
NOT CONTROL THE ISSUES IN THIS CASE.  THE MASTER CONCLUDED THAT, SINCE
THE LOWER BASIN STATES HAD FAILED TO MAKE A COMPACT TO ALLOCATE THE
WATERS AMONG THEMSELVES AS AUTHORIZED BY SEC. 4(A) AND 8(B), THE
SECRETARY'S CONTRACTS WITH THE STATES HAD WITHIN THE STATUTORY SCHEME
OF SECS. 4(A), 5, AND 8(B) EFFECTED AN APPORTIONMENT OF THE WATERS OF
THE MAINSTREAM WHICH, ACCORDING TO THE MASTER, WERE THE ONLY WATERS TO
BE APPORTIONED UNDER THE ACT.  THE MASTER FURTHER HELD THAT, IN THE
EVENT OF A SHORTAGE OF WATER MAKING IT IMPOSSIBLE FOR THE SECRETARY TO
SUPPLY ALL THE WATER DUE CALIFORNIA, ARIZONA, AND NEVADA UNDER THEIR
CONTRACTS, THE BURDEN OF THE SHORTAGE MUST BE BORNE BY EACH STATE IN
PROPORTION TO HER SHARE OF THE FIRST 7,500,000 ACRE-FEET ALLOCATED TO
THE LOWER BASIN, THAT IS, 4.4/7.5 BY CALIFORNIA, 2.8/7.5 BY ARIZONA,
AND .3/7.5 BY NEVADA, WITHOUT REGARD TO THE LAW OF PRIOR
APPROPRIATION. 

ARIZONA, NEVADA, AND THE UNITED STATES SUPPORT WITH FEW EXCEPTIONS
THE ANALYSIS, CONCLUSIONS, AND RECOMMENDATIONS OF THE SPECIAL MASTER'S
REPORT.  THESE PARTIES AGREE THAT CONGRESS DID NOT LEAVE DIVISION OF
THE WATERS TO AN EQUITABLE APPORTIONMENT BY THIS COURT BUT INSTEAD
CREATED A COMPREHENSIVE STATUTORY SCHEME FOR THE ALLOCATION OF
MAINSTREAM WATERS.  ARIZONA, HOWEVER, BELIEVES THAT THE ALLOCATION
FORMULA ESTABLISHED BY THE SECRETARY'S CONTRACTS WAS IN FACT THE
FORMULA REQUIRED BY THE ACT.  THE UNITED STATES, ALONG WITH CALIFORNIA,
THINKS THE MASTER SHOULD NOT HAVE INVALIDATED THE PROVISIONS OF THE
ARIZONA AND NEVADA WATER CONTRACTS REQUIRING THOSE STATES TO DEDUCT
FROM THEIR ALLOCATIONS ANY DIVERSIONS OF WATER ABOVE LAKE MEAD WHICH
REDUCE THE FLOW INTO THAT LAKE. 

CALIFORNIA IS IN BASIC DISAGREEMENT WITH ALMOST ALL OF THE MASTER'S
REPORT.  SHE ARGUES THAT THE PROJECT ACT, LIKE THE COLORADO RIVER
COMPACT, DEALS WITH THE ENTIRE COLORADO RIVER SYSTEM, NOT JUST THE
MAINSTREAM.  THIS WOULD MEAN THAT DIVERSIONS WITHIN ARIZONA AND NEVADA
OF TRIBUTARY WATERS FLOWING IN THOSE STATES WOULD BE CHARGED AGAINST
THEIR APPORTIONMENTS AND THAT, BECAUSE TRIBUTARY WATER WOULD BE ADDED
TO THE MAINSTREAM WATER IN COMPUTING THE FIRST 7,500,000 ACRE-FEET
AVAILABLE TO THE STATES, THERE WOULD BE A GREATER LIKELIHOOD OF A
SURPLUS, OF WHICH CALIFORNIA GETS ONE-HALF.  THE RESULT OF CALIFORNIA'S
ARGUMENT WOULD BE MUCH MORE WATER FOR CALIFORNIA AND MUCH LESS FOR
ARIZONA.  CALIFORNIA ALSO ARGUES THAT THE ACT NEITHER ALLOCATES THE
COLORADO RIVER WATERS NOR GIVES THE SECRETARY AUTHORITY TO MAKE AN
ALLOCATION.  RATHER SHE TAKES THE POSITION THAT THE JUDICIAL DOCTRINE
OF EQUITABLE APPORTIONMENT GIVING FULL INTERSTATE EFFECT TO THE
TRADITIONAL WESTERN WATER LAW OF PRIOR APPROPRIATION SHOULD DETERMINE
THE RIGHTS OF THE PARTIES TO THE WATER.  FINALLY, CALIFORNIA CLAIMS
THAT IN ANY EVENT THE ACT DOES NOT CONTROL IN TIME OF SHORTAGE.  UNDER
SUCH CIRCUMSTANCES, SHE SAYS, THIS COURT SHOULD DIVIDE THE WATERS
ACCORDING TO THE DOCTRINE OF EQUITABLE APPORTIONMENT OR THE LAW OF
PRIOR APPROPRIATION, EITHER OF WHICH, SHE ARGUES, SHOULD RESULT IN
PROTECTING HER PRIOR USES. 

OUR JURISDICTION TO ENTERTAIN THIS SUIT IS NOT CHALLENGED AND COULD
NOT WELL BE SINCE ART. III, SEC. 2, OF THE CONSTITUTION GIVES THIS
COURT ORIGINAL JURISDICTION OF ACTIONS IN WHICH STATES ARE PARTIES.  IN
EXERCISING THAT JURISDICTION, WE ARE MINDFUL OF THIS COURT'S OFTEN
EXPRESSED PREFERENCE THAT, WHERE POSSIBLE, STATES SETTLE THEIR
CONTROVERSIES BY "MUTUAL ACCOMMODATION AND AGREEMENT."  (FN32)  THOSE
CASES AND OTHERS (FN33) MAKE IT CLEAR, HOWEVER, THAT THIS COURT DOES
HAVE A SERIOUS RESPONSIBILITY TO ADJUDICATE CASES WHERE THERE ARE
ACTUAL, EXISTING CONTROVERSIES OVER HOW INTERSTATE STREAMS SHOULD BE
APPORTIONED AMONG STATES.  THIS CASE IS THE MOST RECENT PHASE OF A
CONTINUING CONTROVERSY OVER THE WATER OF THE COLORADO RIVER, WHICH THE
STATES DESPITE REPEATED EFFORTS HAVE BEEN UNABLE TO SETTLE.  RESOLUTION
OF THIS DISPUTE REQUIRES A DETERMINATION OF WHAT APPORTIONMENT, IF ANY,
IS MADE BY THE PROJECT ACT AND WHAT POWERS ARE CONFERRED BY THE ACT
UPON THE SECRETARY OF THE INTERIOR.  UNLESS MANY OF THE ISSUES
PRESENTED HERE ARE ADJUDICATED, THE CONFLICTING CLAIMS OF THE PARTIES
WILL CONTINUE, AS THEY DO NOW, TO RAISE SERIOUS DOUBTS AS TO THE EXTENT
OF EACH STATE'S RIGHT TO APPROPRIATE WATER FROM THE COLORADO RIVER
SYSTEM FOR EXISTING OR NEW USES.  IN THIS SITUATION WE SHOULD AND DO
EXERCISE OUR JURISDICTION. 

                 I.

                    ALLOCATION OF WATER AMONG THE STATES AND

                             DISTRIBUTION TO USERS. 

WE HAVE CONCLUDED, FOR REASONS TO BE STATED, THAT CONGRESS IN PASSING
THE PROJECT ACT INTENDED TO AND DID CREATE ITS OWN COMPREHENSIVE SCHEME
FOR THE APPORTIONMENT AMONG CALIFORNIA, ARIZONA, AND NEVADA OF THE
LOWER BASIN'S SHARE OF THE MAINSTREAM WATERS OF THE COLORADO RIVER,
LEAVING EACH STATE ITS TRIBUTARIES.  CONGRESS DECIDED THAT A FAIR
DIVISION OF THE FIRST 7,500,000 ACRE-FEET OF SUCH MAINSTREAM WATERS
WOULD GIVE 4,400,000 ACRE-FEET TO CALIFORNIA, 2,800,000 TO ARIZONA, AND
300,000 TO NEVADA; ARIZONA AND CALIFORNIA WOULD EACH GET ONE-HALF OF
ANY SURPLUS.  PRIOR APPROVAL WAS THEREFORE GIVEN IN THE ACT FOR A TRI
STATE COMPACT TO INCORPORATE THESE TERMS.  THE STATES, SUBJECT TO
SUBSEQUENT CONGRESSIONAL APPROVAL, WERE ALSO PERMITTED TO AGREE ON A
COMPACT WITH DIFFERENT TERMS.  DIVISION OF THE WATER DID NOT, HOWEVER,
DEPEND ON THE STATES' AGREEING TO A COMPACT, FOR CONGRESS GAVE THE
SECRETARY OF THE INTERIOR ADEQUATE AUTHORITY TO ACCOMPLISH THE
DIVISION.  CONGRESS DID THIS BY GIVING THE SECRETARY POWER TO MAKE
CONTRACTS FOR THE DELIVERY OF WATER AND BY PROVIDING THAT NO PERSON
COULD HAVE WATER WITHOUT A CONTRACT. 

A. RELEVANCY OF JUDICIAL APPORTIONMENT AND COLORADO RIVER COMPACT.  -
WE AGREE WITH THE MASTER THAT APPORTIONMENT OF THE LOWER BASIN WATERS
OF THE COLORADO RIVER IS NOT CONTROLLED BY THE DOCTRINE OF EQUITABLE
APPORTIONMENT OR BY THE COLORADO RIVER COMPACT.  IT IS TRUE THAT THE
COURT HAS USED THE DOCTRINE OF EQUITABLE APPORTIONMENT TO DECIDE RIVER
CONTROVERSIES BETWEEN STATES.  (FN34)  BUT IN THOSE CASES CONGRESS HAD
NOT MADE ANY STATUTORY APPORTIONMENT.  IN THIS CASE, WE HAVE DECIDED
THAT CONGRESS HAS PROVIDED ITS OWN METHOD FOR ALLOCATING AMONG THE
LOWER BASIN STATES THE MAINSTREAM WATER TO WHICH THEY ARE ENTITLED
UNDER THE COMPACT.  WHERE CONGRESS HAS SO EXERCISED ITS CONSTITUTIONAL
POWER OVER WATERS, COURTS HAVE NO POWER TO SUBSTITUTE THEIR OWN NOTIONS
OF AN "EQUITABLE APPORTIONMENT" FOR THE APPORTIONMENT CHOSEN BY
CONGRESS.  NOR DOES THE COLORADO RIVER COMPACT CONTROL THIS CASE. 
NOTHING IN THAT COMPACT PURPORTS TO DIVIDE WATER AMONG THE LOWER BASIN
STATES NOR IN ANY WAY TO AFFECT OR CONTROL ANY FUTURE APPORTIONMENT
AMONG THOSE STATES OR ANY DISTRIBUTION OF WATER WITHIN A STATE.  THAT
THE COMMISSIONERS WERE ABLE TO ACCOMPLISH EVEN A DIVISION OF WATER
BETWEEN THE BASINS IS DUE TO WHAT IS GENERALLY KNOWN AS THE "HOOVER
COMPROMISE." 

"PARTICIPANTS (IN THE COMPACT NEGOTIATIONS) HAVE STATED THAT THE
NEGOTIATIONS WOULD HAVE BROKEN UP BUT FOR MR. HOOVER'S PROPOSAL:  THAT
THE COMMISSION LIMIT ITS EFFORTS TO A DIVISION OF WATER BETWEEN THE
UPPER BASIN AND THE LOWER BASIN, LEAVING TO EACH BASIN THE FUTURE
INTERNAL ALLOCATION OF ITS SHARE."  (FN35) 

AND IN FACT THIS IS ALL THE COMPACT DID.  HOWEVER, THE PROJECT ACT,
BE REFERRING TO THE COMPACT IN SEVERAL PLACES, DOES MAKE THE COMPACT
RELEVANT TO A LIMITED EXTENT.  TO BEGIN WITH, THE ACT EXPLICITLY
APPROVES THE COMPACT AND THEREBY FIXES A DIVISION OF THE WATERS BETWEEN
THE BASINS WHICH MUST BE RESPECTED.  FURTHER, IN SEVERAL PLACES THE ACT
REFERS TO TERMS CONTAINED IN THE COMPACT.  FOR EXAMPLE, SEC. 12 OF THE
ACT ADOPTS THE COMPACT DEFINITION OF "DOMESTIC," (FN36) AND SEC. 6
REQUIRES SATISFACTION OF "PRESENT PERFECTED RIGHTS" AS USED IN THE
COMPACT.  (FN37)  OBVIOUSLY, THEREFORE, THOSE PARTICULAR TERMS, THOUGH
ORIGINALLY FORMULATED ONLY FOR THE COMPACT'S ALLOCATION OF WATER
BETWEEN BASINS, ARE INCORPORATED INTO THE ACT AND ARE MADE APPLICABLE
TO THE PROJECT ACT'S ALLOCATION AMONG LOWER BASIN STATES.  THE ACT ALSO
DECLARES THAT THE SECRETARY OF THE INTERIOR AND THE UNITED STATES IN
THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE DAM AND OTHER WORKS
AND IN THE MAKING OF CONTRACTS SHALL BE SUBJECT TO AND CONTROLLED BY
THE COLORADO RIVER COMPACT.  (FN38) THESE LATTER REFERENCES TO THE
COMPACT ARE QUITE DIFFERENT FROM THE ACT'S ADOPTION OF COMPACT TERMS. 
SUCH REFERENCES, UNLIKE THE EXPLICIT ADOPTION OF TERMS, WERE USED ONLY
TO SHOW THAT THE ACT AND ITS PROVISIONS WERE IN NO WAY TO UPSET, ALTER,
OR AFFECT THE COMPACT'S CONGRESSIONALLY APPROVED DIVISION OF WATER
BETWEEN THE BASINS.  THEY WERE NOT INTENDED TO MAKE THE COMPACT AND ITS
PROVISIONS CONTROL OR AFFECT THE ACT'S ALLOCATION AMONG AND
DISTRIBUTION OF WATER WITHIN THE STATES OF THE LOWER BASIN. 
THEREFORE, WE LOOK TO THE COMPACT FOR TERMS SPECIFICALLY INCORPORATED
IN THE ACT, AND WE WOULD ALSO LOOK TO IT TO RESOLVE DISPUTES BETWEEN
THE UPPER AND LOWER BASINS, WERE ANY INVOLVED IN THIS CASE.  BUT NO
SUCH QUESTIONS ARE HERE.  WE MUST DETERMINE WHAT APPORTIONMENT AND
DELIVERY SCHEME IN THE LOWER BASIN HAS BEEN EFFECTED THROUGH THE
SECRETARY'S CONTRACTS.  FOR THAT DETERMINATION, WE LOOK TO THE PROJECT
ACT ALONE.    B. MAINSTREAM APPORTIONMENT.  - THE CONGRESSIONAL SCHEME
OF APPORTIONMENT CANNOT BE UNDERSTOOD WITHOUT KNOWING WHAT WATER
CONGRESS WANTED APPORTIONED.  UNDER CALIFORNIA'S VIEW, WHICH WE REJECT,
THE FIRST 7,500,000 ACRE-FEET OF LOWER BASIN WATER, OF WHICH CALIFORNIA
HAS AGREED TO USE ONLY 4,400,000, IS MADE UP OF BOTH MAINSTREAM AND
TRIBUTARY WATER, NOT JUST MAINSTREAM WATER.  UNDER THE VIEW OF ARIZONA,
NEVADA, AND THE UNITED STATES, WITH WHICH WE AGREE, THE TRIBUTARIES ARE
NOT INCLUDED IN THE WATERS TO BE DIVIDED BUT REMAIN FOR THE EXCLUSIVE
USE OF EACH STATE.  ASSUMING 7,500,000 ACRE-FEET OR MORE IN THE
MAINSTREAM AND 2,000,000 IN THE TRIBUTARIES, CALIFORNIA WOULD GET
1,000,000 ACRE-FEET MORE IF THE TRIBUTARIES ARE INCLUDED AND ARIZONA
1,000,000 LESS.  (FN39) 

CALIFORNIA'S ARGUMENT THAT THE PROJECT ACT, LIKE THE COLORADO RIVER
COMPACT, DEALS WITH THE MAIN RIVER AND ALL ITS TRIBUTARIES RESTS ON
SEC. 4(A) OF THE ACT, WHICH LIMITS CALIFORNIA TO 4,400,000 ACRE-FEET
"OF THE WATERS APPORTIONED TO THE LOWER BASIN STATES BY PARAGRAPH (A)
OF ARTICLE III OF THE COLORADO RIVER COMPACT, PLUS NOT MORE THAN ONE
HALF OF ANY EXCESS OR SURPLUS WATERS UNAPPORTIONED BY SAID COMPACT  ...
."  AND ARTICLE IIIA), REFERRED TO BY SEC. 4(A), APPORTIONED IN
PERPETUITY TO THE LOWER BASIN THE USE OF 7,500,000 ACRE-FEET OF WATER
PER ANNUM "FROM THE COLORADO RIVER SYSTEM," WHICH WAS DEFINED IN THE
COMPACT AS "THAT PORTION OF THE COLORADO RIVER AND ITS TRIBUTARIES
WITHIN THE UNITED STATES OF AMERICA." 

ARIZONA AGRUES THAT THE COMPACT APPORTIONS BETWEEN BASINS ONLY THE
WATERS OF THE MAINSTREAM, NOT THE MAINSTREAM AND THE TRIBUTARIES.  WE
NEED NOT REACH THAT QUESTION, HOWEVER, FOR WE HAVE CONCLUDED THAT
WHATEVER WATERS THE COMPACT APPORTIONED THE PROJECT ACT ITSELF DEALT
ONLY WITH WATER OF THE MAINSTREAM.  IN THE FIRST PLACE, THE ACT, IN
SEC. 4(A), STATES THAT THE CALIFORNIA LIMITATION, WHICH IS IN REALITY
HER SHARE OF THE FIRST 7,500,000 ACRE-FEET OF LOWER BASIN WATER, IS ON
"WATER OF AND FROM THE COLORADO RIVER," NOT OF AND FROM THE "COLORADO
RIVER SYSTEM."  BUT MORE IMPORTANTLY, THE NEGOTIATIONS AMONG THE STATES
AND THE CONGRESSIONAL DEBATES LEADING TO THE PASSAGE OF THE PROJECT ACT
CLEARLY SHOW THAT THE LANGUAGE USED BY CONGRESS IN THE ACT WAS MEANT TO
REFER TO MAINSTREAM WATERS ONLY.  INCLUSION OF THE TRIBUTARIES IN THE
COMPACT WAS NATURAL IN VIEW OF THE UPPER STATES' STRONG FEELING THAT
THE LOWER BASIN TRIBUTARIES SHOULD BE MADE TO SHARE THE BURDEN OF ANY
OBLIGATION TO DELIVER WATER TO MEXICO WHICH A FUTURE TREATY MIGHT
IMPOSE.  BUT WHEN IT CAME TO AN APPORTIONMENT AMONG THE LOWER BASIN
STATES, THE GILA, BY FAR THE MOST IMPORTANT LOWER BASIN TRIBUTARY,
WOULD NOT LOGICALLY BE INCLUDED, SINCE ARIZONA ALONE OF THE STATES
COULD EFFECTIVELY USE THAT RIVER.  (FN40) THEREFORE, WITH MINOR
EXCEPTIONS, THE PROPOSALS AND COUNTERPROPOSALS OVER THE YEARS,
CULMINATING IN THE PROJECT ACT, CONSISTENTLY PROVIDED FOR DIVISION OF
THE MAINSTREAM ONLY, RESERVING THE TRIBUTARIES TO EACH STATE'S
EXCLUSIVE USE. 

THE MOST IMPORTANT NEGOTIATIONS AMONG THE STATES, WHICH IN FACT
FORMED THE BASIS OF THE DEBATES LEADING TO PASSAGE OF THE ACT, TOOK
PLACE IN 1927 WHEN THE GOVERNORS OF THE SEVEN BASIN STATES MET AT
DENVER IN AN EFFORT TO WORK OUT AN ALLOCATION OF THE LOWER BASIN WATERS
ACCEPTABLE TO ARIZONA, CALIFORNIA, AND NEVADA.  ARIZONA AND CALIFORNIA
MADE PROPOSALS, (FN41) BOTH OF WHICH SUGGESTED GIVING NEVADA 300,000
ACRE-FEET OUT OF THE MAINSTREAM OF THE COLORADO RIVER AND RESERVING TO
EACH STATE THE EXCLUSIVE USE OF HER OWN TRIBUTARIES.  ARIZONA PROPOSED
THAT ALL REMAINING MAINSTREAM WATER BE DIVIDED EQUALLY BETWEEN HERSELF
AND CALIFORNIA, WHICH WOULD GIVE EACH STATE 3,600,000 ACRE-FEET OUT OF
THE FIRST 7,500,000 ACRE-FEET OF MAINSTREAM WATER.  CALIFORNIA REJECTED
THE PROPOSED EQUAL DIVISION OF THE WATER, SUGGESTING FIGURES THAT WOULD
RESULT IN HER GETTING ABOUT 4,600,000 OUT OF THE 7,500,000.  THE
GOVERNORS OF THE FOUR UPPER BASIN STATES, TRYING TO BRING ARIZONA AND
CALIFORNIA TOGETHER, ASKED EACH STATE TO REDUCE ITS DEMANDS AND
SUGGESTED THIS COMPROMISE:  NEVADA 300,000 ACRE-FEET, ARIZONA
3,000,000, AND CALIFORNIA 4,200,000.  (FN42)  THESE ALLOCATIONS WERE TO
COME ONLY OUT OF THE MAINSTREAM, THAT IS, AS STATED BY THE GOVERNORS,
OUT OF "THE AVERAGE ANNUAL DELIVERY OF WATER TO BE PROVIDED BY THE
STATES OF THE UPPER DIVISION AT LEES FERRY, UNDER THE TERMS OF THE
COLORADO RIVER COMPACT."  THE GOVERNORS' SUGGESTIONS, LIKE THOSE OF THE
STATES, EXPLICITLY RESERVED TO EACH STATE AS AGAINST THE OTHER STATES
THE EXCLUSIVE USE OF HER OWN TRIBUTARIES.  ARIZONA AGREED TO THE
GOVERNORS' PROPOSAL, BUT SHE WANTED IT MADE CLEAR THAT HER TRIBUTARIES
WERE TO BE EXEMPTED FROM ANY MEXICAN OBLIGATION.  (FN43)  CALIFORNIA
REJECTED THE WHOLE PROPOSAL, INSISTING THAT SHE MUST HAVE 4,600,000
ACRE-FEET FROM THE MAINSTREAM, OR, AS SHE PUT IT, "FROM THE WATERS TO
BE PROVIDED BY THE STATES OF THE UPPER DIVISION AT LEE FERRY UNDER THE
COLORADO RIVER COMPACT."  (FN44)  NEITHER IN THE STATES' ORIGINAL
OFFERS, NOR IN THE GOVERNORS' SUGGESTIONS, NOR IN THE STATES' RESPONSES
WAS THE "COLORADO RIVER SYSTEM" - MAINSTREAM PLUS TRIBUTARIES - EVER
USED AS THE BASIS FOR LOWER BASIN ALLOCATIONS; RATHER, IT WAS ALWAYS
MAINSTREAM WATER, OR THE WATER TO BE DELIVERED BY THE UPPER STATES AT
LEE FERRY, THAT IS TO SAY, AN ANNUAL AVERAGE OF 7,500,000 ACRE-FEET OF
MAINSTREAM WATER. 

WITH THE CONTINUED FAILURE OF ARIZONA AND CALIFORNIA TO REACH ACCORD,
THERE WAS MOUNTING IMPETUS FOR A CONGRESSIONAL SOLUTION.  A SWING
JOHNSON BILL CONTAINING NO LIMITATION ON CALIFORNIA'S USES FINALLY
PASSED THE HOUSE IN 1928 OVER OBJECTIONS BY REPRESENTATIVES FROM
ARIZONA AND UTAH.  (FN45) WHEN THE BILL REACHED THE SENATE, IT WAS
AMENDED IN COMMITTEE TO PROVIDE THAT THE SECRETARY IN HIS WATER
DELIVERY CONTRACTS MUST LIMIT CALIFORNIA TO 4,600,000 ACRE-FEET "OF THE
WATER ALLOCATED TO THE LOWER BASIN BY THE COLORADO RIVER COMPACT  ...
AND ONE-HALF OF THE UNALLOCATED, EXCESS, AND/OR SURPLUS WATER  ...  ." 
(FN46)  ON THE FLOOR, SENATOR PHIPPS OF COLORADO PROPOSED AN AMENDMENT
WHICH WOULD ALLOW THE ACT TO GO INTO EFFECT WITHOUT ANY LIMITATION ON
CALIFORNIA IF SEVEN STATES RATIFIED THE COMPACT; IF ONLY SIX STATES
RATIFIED AND IF THE CALIFORNIA LEGISLATURE ACCEPTED THE LIMITATION, THE
ACT COULD STILL BECOME EFFECTIVE.  (FN47)  ARIZONA'S SENATOR HAYDEN HAD
ALREADY PROPOSED AN AMENDMENT REDUCING CALIFORNIA'S SHARE TO 4,200,000
ACRE-FEET (THE GOVERNORS' PROPOSAL), PLUS HALF OF THE SURPLUS, LEAVING
ARIZONA EXCLUSIVE USE OF THE GILA FREE FROM ANY MEXICAN OBLIGATION,
(FN48) BUT THIS THE SENATE REJECTED.  (FN49)  SENATOR BRATTON OF NEW
MEXICO, NOTING THAT ONLY 400,000 ACRE-FEET KEPT ARIZONA AND CALIFORNIA
APART, IMMEDIATELY SUGGESTED AN AMENDMENT BY WHICH THEY WOULD SPLIT THE
DIFFERENCE, CALIFORNIA GETTING 4,400,000 ACRE-FEET "OF THE WATERS
APPORTIONED TO THE LOWER BASIN STATES BY THE COLORADO RIVER COMPACT,"
PLUS HALF OF THE SURPLUS.  (FN50)  IT WAS THIS BRATTON AMENDMENT THAT
BECAME PART OF THE ACT AS PASSED, (FN51) WHICH HAD BEEN AMENDED ON THE
FLOOR SO THAT THE LIMITATION REFERRED TO WATERS APPORTIONED TO THE
LOWER BASIN "BY PARAGRAPH (A) OF ARTICLE III OF THE COLORADO RIVER
COMPACT," INSTEAD OF WATERS APPORTIONED "BY THE COLORADO RIVER
COMPACT."  (FN52) 

STATEMENTS MADE THROUGHOUT THE DEBATES MAKE IT QUITE CLEAR THAT
CONGRESS INTENDED THE 7,500,000 ACRE-FEET IT WAS ALLOCATING, AND OUT OF
WHICH CALIFORNIA WAS LIMITED TO 4,400,000, TO BE MAINSTREAM WATER
ONLY.  IN THE FIRST PLACE, THE BASIN SENATORS EXPRESSLY ACKNOWLEDGED AS
THE STARTING POINT FOR THEIR DEBATE THE DENVER GOVERNORS' PROPOSAL THAT
SPECIFIC ALLOCATIONS BE MADE TO ARIZONA, CALIFORNIA, AND NEVADA FROM
THE MAINSTREAM, LEAVING THE TRIBUTARIES TO THE STATES.  FOR EXAMPLE,
SENATOR JOHNSON, LEADING SPOKESMAN FOR CALIFORNIA, AND SENATOR HAYDEN,
LEADING SPOKESMAN FOR ARIZONA, AGREED THAT THE GOVERNORS'
RECOMMENDATIONS COULD BE USED AS "A BASIS FOR DISCUSSION."  (FN53)
HAYDEN WENT ON TO OBSERVE THAT THE COMMITTEE AMENDMENT WOULD GIVE
CALIFORNIA THE SAME 4,600,000 ACRE-FEET SHE HAD SOUGHT AT DENVER. 
(FN54)  LATER, NEVADA'S SENATOR PITTMAN STATED THAT THE COMMITTEE "PUT
THE AMOUNT IN THERE THAT CALIFORNIA DEMANDED BEFORE THE FOUR GOVERNORS
AT DENVER," AND SAID THAT THE BRATTON AMENDMENT WOULD SPLIT THE 400,000
ACRE-FEET SEPARATING THE GOVERNORS' FIGURE AND THE COMMITTEE'S FIGURE. 
(FN55)  ALL THE LEADERS IN THE DEBATE - JOHNSON, BRATTON, KING, HAYDEN,
PHIPPS, AND PITTMAN - EXPRESSED A COMMON UNDERSTANDING THAT THE KEY
ISSUE SEPARATING ARIZONA AND CALIFORNIA WAS THE DIFFERENCE OF 400,000
ACRE-FEET, (FN56) PRECISELY THE SAME 400,000 ACRE-FEET OF MAINSTREAM
WATER THAT HAD SEPARATED THE STATES AT DENVER.  WERE WE TO SUSTAIN
CALIFORNIA'S ARGUMENT HERE THAT TRIBUTARIES MUST BE INCLUDED,
CALIFORNIA WOULD ACTUALLY GET MORE THAN SHE WAS WILLING TO SETTLE FOR
AT DENVER. 

THAT THE APPORTIONMENT WAS FROM THE MAINSTREAM ONLY IS ALSO STRONGLY
INDICATED BY AN ANALYSIS OF THE SECOND PARAGRAPH OF SEC. 4(A) OF THE
ACT.  THERE CONGRESS AUTHORIZED ARIZONA, NEVADA, AND CALIFORNIA TO MAKE
A COMPACT ALLOCATING TO NEVADA 300,000 ACRE-FEET AND TO ARIZONA
2,800,000 PLUS ONE-HALF OF THE SURPLUS, WHICH, WITH CALIFORNIA'S
4,400,000 AND HALF OF THE SURPLUS, WOULD UNDER CALIFORNIA'S
INTERPRETATION OF THE ACT EXHAUST THE LOWER BASIN WATERS, BOTH
MAINSTREAM AND TRIBUTARIES.  BUT UTAH AND NEW MEXICO, AS CONGRESS KNEW,
HAD INTERESTS IN LOWER BASIN TRIBUTARIES WHICH CONGRESS SURELY WOULD
HAVE PROTECTED IN SOME WAY HAD IT MEANT FOR THE TRIBUTARIES OF THOSE
TWO STATES TO BE INCLUDED IN THE WATER TO BE DIVIDED AMONG ARIZONA,
NEVADA, AND CALIFORNIA.  WE CANNOT BELIEVE THAT CONGRESS WOULD HAVE
PERMITTED THREE STATES TO DIVIDE AMONG THEMSELVES WATER BELONGING TO
FIVE STATES.  NOR CAN WE BELIEVE THAT THE REPRESENTATIVES OF UTAH AND
NEW MEXICO WOULD HAVE SAT QUIETLY BY AND ACQUIESCED IN A CONGRESSIONAL
ATTEMPT TO INCLUDE THEIR TRIBUTARIES IN WATERS GIVEN THE OTHER THREE
STATES. 

FINALLY, IN CONSIDERING CALIFORNIA'S CLAIM TO SHARE IN THE
TRIBUTARIES OF OTHER STATES, IT IS IMPORTANT THAT FROM THE BEGINNING OF
THE DISCUSSIONS AND NEGOTIATIONS WHICH LED TO THE PROJECT ACT, ARIZONA
CONSISTENTLY CLAIMED THAT SHE MUST HAVE SOLE USE OF THE GILA, UPON
WHICH HER EXISTING ECONOMY DEPENDED.  (FN57)  ARIZONA'S CLAIM WAS
SUPPORTED BY THE FACT THAT ONLY SHE AND NEW MEXICO COULD EFFECTIVELY
USE THE GILA WATERS, WHICH NOT ONLY ENTERED THE COLORADO RIVER TOO
CLOSE TO MEXICO TO BE OF MUCH USE TO ANY OTHER STATE BUT ALSO WAS
REDUCED VIRTUALLY TO A TRICKLE IN THE HOT ARIZONA SUMMERS BEFORE IT
COULD REACH THE COLORADO.  IN THE DEBATES THE SENATORS CONSISTENTLY
ACKNOWLEDGED THAT THE TRIBUTARIES - OR AT LEAST THE WATERS OF THE GILA,
THE ONLY MAJOR ARIZONA TRIBUTARY - WERE EXCLUDED FROM THE ALLOCATION
THEY WERE MAKING.  SENATOR HAYDEN, IN RESPONSE TO QUESTIONS BY SENATOR
JOHNSON, SAID THAT THE CALIFORNIA SENATOR WAS CORRECT IN STATING THAT
THE SENATE HAD SEEN FIT TO GIVE ARIZONA 2,800,000 ACRE-FEET IN ADDITION
TO ALL THE WATER IN THE GILA.  (FN58)  SENATOR JOHNSON HAD EARLIER
STATED, "IT IS ONLY THE MAIN STREAM, SENATORS WILL RECALL, THAT HAS
BEEN DISCUSSED," AND ONE OF HIS ARGUMENTS IN FAVOR OF CALIFORNIA'S
RECEIVING 4,600,000 ACRE-FEET RATHER THAN 4,200,000 WAS THAT ARIZONA
WAS GOING TO KEEP ALL HER TRIBUTARIES IN ADDITION TO WHATEVER PORTION
OF THE MAIN RIVER WAS ALLOCATED TO HER.  (FN59)  SENATOR JOHNSON ALSO
ARGUED THAT ARIZONA SHOULD BEAR MORE THAN HALF THE LOWER BASIN'S
MEXICAN BURDEN BECAUSE IN ADDITION TO THE 2,800,000 ACRE-FEET ALLOTTED
HER BY THE ACT SHE WOULD GET THE GILA, WHICH HE ERRONEOUSLY ESTIMATED
AT 3,500,000 ACRE-FEET.  (FN60) SENATOR PITTMAN, WHO HAD SAT IN ON THE
GOVERNORS' CONFERENCE, LIKEWISE UNDERSTOOD THAT THE WATER WAS BEING
ALLOCATED FROM "THE MAIN COLORADO RIVER."  (FN61)  AND OTHER INTERESTED
SENATORS SIMILARLY DISTINGUISHED BETWEEN THE MAINSTREAM AND THE
TRIBUTARIES.  (FN62)  WHILE THE DEBATES, EXTENDING OVER A LONG PERIOD
OF YEARS, UNDOUBTEDLY CONTAIN STATEMENTS WHICH SUPPORT INFERENCES IN
CONFLICT WITH THOSE WE HAVE DRAWN, WE ARE PERSUADED BY THE LEGISLATIVE
HISTORY AS A WHOLE THAT THE ACT WAS NOT INTENDED TO GIVE CALIFORNIA ANY
CLAIM TO SHARE IN THE TRIBUTARY WATERS OF THE OTHER LOWER BASIN
STATES. 

C. THE PROJECT ACT'S APPORTIONMENT AND DISTRIBUTION SCHEME.  - THE
LEGISLATIVE HISTORY, THE LANGUAGE OF THE ACT, AND THE SCHEME
ESTABLISHED BY THE ACT FOR THE STORAGE AND DELIVERY OF WATER CONVINCE
US ALSO THAT CONGRESS INTENDED TO PROVIDE ITS OWN METHOD FOR A COMPLETE
APPORTIONMENT OF THE MAINSTREAM WATER AMONG ARIZONA, CALIFORNIA, AND
NEVADA. 

FIRST, THE LEGISLATIVE HISTORY.  IN HEARINGS ON THE HOUSE BILL THAT
BECAME THE PROJECT ACT, CONGRESSMAN ARENTZ OF NEVADA, APPARENTLY
IMPATIENT WITH THE DELAY OF THIS MUCH NEEDED PROJECT, TOLD THE
COMMITTEE ON JANUARY 6, 1928, THAT IF THE STATES COULD NOT THEMSELVES
ALLOCATE THE WATER, "THERE MUST BE SOME POWER WHICH WILL SAY TO
CALIFORNIA 'YOU CAN NOT TAKE ANY MORE THAN THIS AMOUNT AND THE BALANCE
IS ALLOCATED TO THE OTHER STATES.'"  (FN63)  LATER, MAY 25, 1928, THE
HOUSE PASSED THE BILL, (FN64) BUT IT DID NOT CONTAIN ANY ALLOCATION
SCHEME.  WHEN THE SENATE TOOK UP THAT BILL IN DECEMBER, PRESSURE
MOUNTED SWIFTLY FOR AMENDMENTS THAT WOULD PROVIDE A WORKABLE METHOD FOR
APPORTIONING THE WATERS AMONG THE LOWER BASIN STATES AND DISTRIBUTING
THEM TO USERS IN THE STATES.  THE SESSION CONVENED ON DECEMBER 3, 1928,
ON THE FIFTH THE SENATE TOOK UP THE BILL, (FN65) NINE DAYS LATER THE
BILL WITH SIGNIFICANT AMENDMENTS PASSED THE SENATE, (FN66) FOUR DAYS
AFTER THAT THE HOUSE CONCURRED IN THE SENATE'S ACTION, (FN67) AND ON
THE TWENTY-FIRST THE PRESIDENT SIGNED THE BILL.  (FN68)  WHEN THE BILL
FIRST REACHED THE SENATE FLOOR, IT HAD A PROVISION, ADDED IN COMMITTEE,
LIMITING CALIFORNIA TO 4,600,000 ACRE-FEET, (FN69) AND SENATOR HAYDEN
ON DECEMBER 6 PROPOSED REDUCING THAT SHARE TO 4,200,000.  (FN70)  THE
NEXT DAY, DECEMBER 7, MR. PITTMAN, SENIOR SENATOR FROM NEVADA,
VIGOROUSLY ARGUED THAT CONGRESS SHOULD SETTLE THE MATTER WITHOUT
DELAY.  HE SAID:    "WHAT IS THE DIFFICULTY?  WE HAVE ONLY MINOR
QUESTIONS INVOLVED HERE.  THERE IS PRACTICALLY NOTHING INVOLVED EXCEPT
A DISPUTE BETWEEN THE STATES OF ARIZONA AND CALIFORNIA WITH REGARD TO
THE DIVISION OF THE INCREASED WATER THAT WILL BE IMPOUNDED BEHIND THE
PORPOSED DAM; THAT IS ALL  ...  . OF THE 7,500,000 ACRE-FEET OF WATER
LET DOWN THAT RIVER THEY HAVE GOTTEN TOGETHER WITHIN 400,000 ACRE
FEET.  THEY HAVE GOT TO GET TOGETHER, AND IF THEY DO NOT GET TOGETHER
CONGRESS SHOULD BRING THEM TOGETHER."  (FN71) 

THE DAY AFTER THAT, DECEMBER 8, NEW MEXICO'S SENATOR BRATTON
SUGGESTED AN AMENDMENT SPLITTING THE DIFFERENCE BETWEEN THE DEMANDS OF
ARIZONA AND CALIFORNIA BY LIMITING CALIFORNIA TO 4,400,000 ACRE-FEET. 
(FN72)  ON THE TENTH, REFLECTING THE PREVAILING SENSE OF URGENCY FOR
DECISIVE ACTION, SENATOR BRATTON EMPHASIZED THAT THIS WAS NOT A DISPUTE
LIMITED SIMPLY TO TWO STATES: 

"THE TWO STATES HAVE EXCHANGED VIEWS, THEY HAVE NEGOTIATED, THEY HAVE
ENDEAVORED TO REACH AN AGREEMENT, AND UNTIL NOW HAVE BEEN UNABLE TO DO
SO.  THIS CONTROVERSY DOES NOT AFFECT THOSE TWO STATES ALONE.  IT
AFFECTS OTHER STATES IN THE UNION AND THE GOVERNMENT AS WELL. 

"WITHOUT UNDERTAKING TO EXPRESS MY VIEWS EITHER WAY UPON THE SUBJECT,
I DO THINK THAT IF THE TWO STATES ARE UNABLE TO AGREE UPON A FIGURE
THEN THAT WE, AS A DISINTERESTED AND FRIENDLY AGENCY, SHOULD PASS A
BILL WHICH, ACCORDING TO OUR COMBINED JUDGMENT, WILL JUSTLY AND
EQUITABLY SETTLE THE CONTROVERSY.  I SUGGESTED 4,400,000 ACRE-FEET WITH
THAT IN VIEW.  I STILL HOLD TO THE BELIEF THAT SOMEWHERE BETWEEN THE
TWO FIGURES WE MUST FIX THE AMOUNT, AND THAT THIS DIFFERENCE OF 400,000
ACRE-FEET SHOULD NOT BE ALLOWED TO BAR AND PRECLUDE THE PASSAGE OF THIS
IMPORTANT MEASURE DEALING WITH THE ENORMOUS QUANTITY OF 15,000,000 ACRE
FEET OF WATER AND INVOLVING SEVEN STATES AS WELL AS THE GOVERNMENT." 
(FN73) 

THE VERY NEXT DAY, DECEMBER 11, THIS CRUCIAL AMENDMENT WAS ADOPTED,
(FN74) AND ON THE TWELFTH SENATOR HAYDEN POINTED OUT THAT THE BILL
SETTLED THE DISPUTE OVER LOWER BASIN WATERS BY GIVING 4,400,000 ACRE
FEET TO CALIFORNIA AND 2,800,000 TO ARIZONA: 

"ONE (DISPUTE) IS HOW THE SEVEN AND A HALF MILLION ACRE-FEET SHALL BE
DIVIDED IN THE LOWER BASIN.  THE SENATE HAS SETTLED THAT BY A VOTE -
THAT CALIFORNIA MAY HAVE 4,400,000 ACRE-FEET OF THAT WATER.  IT FOLLOWS
LOGICALLY THAT IF THAT DEMAND IS TO BE CONCEDED, AS EVERYBODY AGREES,
THE REMAINDER IS 2,800,000 ACRE-FEET FOR ARIZONA.  THAT SETTLES THAT
PART OF THE CONTROVERSY."  (FN75) 

ON THE SAME DAY, SENATOR PITTMAN, INTIMATELY FAMILIAR WITH THE WHOLE
WATER PROBLEM, (FN76) SUMMED UP THE FEELING OF THE SENATE THAT THE BILL
FIXED A LIMIT ON CALIFORNIA AND "PRACTICALLY ALLOCATED" TO ARIZONA HER
SHARE OF THE WATER: 

"THE SENATE HAS ALREADY DETERMINED UPON THE DIVISION OF WATER BETWEEN
THOSE STATES.  HOW?  IT HAS DETERMINED HOW MUCH WATER CALIFORNIA MAY
USE, AND THE REST OF IT IS SUBJECTED TO USE BY NEVADA AND ARIZONA. 
NEVADA HAS ALREADY ADMITTED THAT IT CAN USE ONLY AN INSIGNIFICANT
QUANTITY, 300,000 ACRE-FEET.  THAT LEAVES THE REST OF IT TO ARIZONA. 
AS THE BILL NOW STANDS IT IS JUST AS MUCH DIVIDED AS IF THEY HAD
MENTIONED ARIZONA AND NEVADA AND THE AMOUNT THEY ARE TO GET  ...  . 

     *         *         *         *  * 

"AS I UNDERSTAND THIS AMENDMENT, ARIZONA TO-DAY HAS PRACTICALLY
ALLOCATED TO IT 2,800,000 ACRE-FEET OF WATER IN THE MAIN COLORADO
RIVER."  (FN77) 

THE SENATOR WENT ON TO EXPLAIN WHY THE SENATE HAD FOUND IT NECESSARY
TO SET UP ITS OWN PLAN FOR ALLOCATING THE WATER: 

"WHY DO WE NOT LEAVE IT TO CALIFORNIA TO SAY HOW MUCH WATER SHE SHALL
TAKE OUT OF THE RIVER OR LEAVE IT TO ARIZONA TO SAY HOW MUCH WATER SHE
SHALL TAKE OUT OF THE RIVER?  IT IS BECAUSE IT HAPPENS TO BECOME A DUTY
OF THE UNITED STATES SENATE TO SETTLE THIS MATTER, AND THAT IS THE
REASON."  (FN78)

NOT ONLY DO THE CLOSING DAYS OF THE DEBATE SHOW THAT CONGRESS
INTENDED AN APPORTIONMENT AMONG THE STATES BUT ALSO PROVISIONS OF THE
ACT CREATE MACHINERY PLAINLY ADEQUATE TO ACCOMPLISH THIS PURPOSE,
WHATEVER CONTINGENCIES MIGHT OCCUR.  AS ONE ALTERNATIVE OF THE
CONGRESSIONAL SCHEME, SEC. 4(A) OF THE ACT INVITED ARIZONA, CALIFORNIA,
AND NEVADA TO ADOPT A COMPACT DIVIDING THE WATERS ALONG THE IDENTICAL
LINES THAT HAD FORMED THE BASIS FOR THE CONGRESSIONAL DISCUSSIONS OF
THE ACT:  4,400,000 ACRE-FEET TO CALIFORNIA, 300,000 TO NEVADA, AND 2
800,000 TO ARIZONA.  SECTION 8(B) GAVE THE STATES POWER TO AGREE UPON
SOME OTHER DIVISION, WHICH WOULD HAVE TO BE APPROVED BY CONGRESS. 
CONGRESS MADE SURE, HOWEVER, THAT IF THE STATES DID NOT AGREE ON ANY
COMPACT THE OBJECTS OF THE ACT WOULD BE CARRIED OUT, FOR THE SECRETARY
WOULD THEN PROCEED, BY MAKING CONTRACTS, TO APPORTION WATER AMONG THE
STATES AND TO ALLOCATE THE WATER AMONG USERS WITHIN EACH STATE. 

IN THE FIRST SECTION OF THE ACT, THE SECRETARY WAS AUTHORIZED TO
"CONSTRUCT, OPERATE, AND MAINTAIN A DAM AND INCIDENTAL WORKS  ...
ADEQUATE TO CREATE A STORAGE RESERVOIR OF A CAPACITY OF NOT LESS THAN
TWENTY MILLION ACRE-FEET OF WATER  ...  " FOR THE STATED PURPOSE OF
"CONTROLLING THE FLOODS, IMPROVING NAVIGATION AND REGULATING THE FLOW
OF THE COLORADO RIVER, PROVIDING FOR STORAGE AND FOR THE DELIVERY OF
THE STORED WATERS THEREOF FOR RECLAMATION OF PUBLIC LANDS AND OTHER
BENEFICIAL USES ...  ," AND GENERATING ELECTRICAL POWER.  THE WHOLE
POINT OF THE ACT WAS TO REPLACE THE ERRATIC, UNDEPENDABLE, OFTEN
DESTRUCTIVE NATURAL FLOW OF THE COLORADO WITH THE REGULAR, DEPENDABLE
RELEASE OF WATERS CONSERVED AND STORED BY THE PROJECT.  HAVING
UNDERTAKEN THIS BENEFICIAL PROJECT, CONGRESS, IN SEVERAL PROVISIONS OF
THE ACT, MADE IT CLEAR THAT NO ONE SHOULD USE MAINSTREAM WATERS SAVE IN
STRICT COMPLIANCE WITH THE SCHEME SET UP BY THE ACT.  SECTION 5
AUTHORIZED THE SECRETARY "UNDER SUCH GENERAL REGULATIONS AS HE MAY
PRESCRIBE, TO CONTRACT FOR THE STORAGE OF WATER IN SAID RESERVOIR AND
FOR THE DELIVERY THEREOF AT SUCH POINTS ON THE RIVER  ...  AS MAY BE
AGREED UPON, FOR IRRIGATION AND DOMESTIC USES  ...  ."  TO EMPHASIZE
THAT WATER COULD BE OBTAINED FROM THE SECRETARY ALONE, SEC. 5 FURTHER
DECLARED, "NO PERSON SHALL HAVE OR BE ENTITLED TO HAVE THE USE FOR ANY
PURPOSE OF THE WATER STORED AS AFORESAID EXCEPT BY CONTRACT MADE AS
HEREIN STATED."  THE SUPREMACY GIVEN THE SECRETARY'S CONTRACTS WAS MADE
CLEAR IN SEC. 8(B) OF THE ACT, WHICH PROVIDED THAT, WHILE THE LOWER
BASIN STATES WERE FREE TO NEGOTIATE A COMPACT DIVIDING THE WATERS, SUCH
A COMPACT IF MADE AND APPROVED AFTER JANUARY 1, 1929, WAS TO BE
"SUBJECT TO ALL CONTRACTS, IF ANY, MADE BY THE SECRETARY OF THE
INTERIOR UNDER SECTION 5" BEFORE CONGRESS APPROVED THE COMPACT. 

THESE SEVERAL PROVISIONS, EVEN WITHOUT LEGISLATIVE HISTORY, ARE
PERSUASIVE THAT CONGRESS INTENDED THE SECRETARY OF THE INTERIOR,
THROUGH HIS SEC. 5 CONTRACTS, BOTH TO CARRY OUT THE ALLOCATION OF THE
WATERS OF THE MAIN COLORADO RIVER AMONG THE LOWER BASIN STATES AND TO
DECIDE WHICH USERS WITHIN EACH STATE WOULD GET WATER.  THE GENERAL
AUTHORITY TO MAKE CONTRACTS NORMALLY INCLUDES THE POWER TO CHOOSE WITH
WHOM AND UPON WHAT TERMS THE CONTRACTS WILL BE MADE.  WHEN CONGRESS IN
AN ACT GRANTS AUTHORITY TO CONTRACT, THAT AUTHORITY IS NO LESS THAN THE
GENERAL AUTHORITY, UNLESS CONGRESS HAS PLACED SOME LIMIT ON IT.  (FN79)
IN THIS RESPECT IT IS OF INTEREST THAT IN AN EARLIER VERSION THE BILL
DID LIMIT THE SECRETARY'S CONTRACT POWER BY MAKING THE CONTRACTS
"SUBJECT TO RIGHTS OF PRIOR APPROPRIATORS."  (FN80)  BUT THAT
RESTRICTION, WHICH PRESERVED THE LAW OF PRIOR APPROPRIATION, DID NOT
SURVIVE.  IT WAS STRICKEN FROM THE BILL WHEN THE REQUIREMENT THAT EVERY
WATER USER HAVE A CONTRACT WAS ADDED TO SEC.  5.  (FN81)
SIGNIFICANTLY, NO PHRASE OR PROVISION INDICATING THAT THE SECRETARY'S
CONTRACT POWER WAS TO BE CONTROLLED BY THE LAW OF PRIOR APPROPRIATION
WAS SUBSTITUTED EITHER THEN OR AT ANY OTHER TIME BEFORE PASSAGE OF THE
ACT, AND WE ARE PERSUADED THAT HAD CONGRESS INTENDED SO TO FETTER THE
SECRETARY'S DISCRETION, IT WOULD HAVE DONE SO IN CLEAR AND UNEQUIVOCAL
TERMS, AS IT DID IN RECOGNIZING "PRESENT PERFECTED RIGHTS" IN SEC. 6. 

THAT THE BILL WAS GIVING THE SECRETARY SUFFICIENT POWER TO CARRY OUT
AN ALLOCATION OF THE WATERS AMONG THE STATES AND AMONG THE USERS WITHIN
EACH STATE WITHOUT REGARD TO THE LAW OF PRIOR APPROPRIATION WAS BROUGHT
OUT IN A COLLOGUY BETWEEN MONTANA'S SENATOR WALSH AND CALIFORNIA'S
SENATOR JOHNSON, WHOSE STATE HAD AT LEAST AS MUCH REASON AS ANY OTHER
STATE TO BIND THE SECRETARY BY STATE LAWS.  SENATOR WALSH, WHO WAS
THOROUGHLY VERSED IN WESTERN WATER LAW AND ALSO HAD PREVIOUSLY ARGUED
BEFORE THIS COURT IN A LEADING CASE INVOLVING THE DOCTRINE OF PRIOR
APPROPRIATION, (FN82) MADE CLEAR WHAT WOULD FOLLOW FROM THE
GOVERNMENT'S IMPOUNDING OF THE COLORADO RIVER WATERS WHEN HE SAID, "I
ALWAYS UNDERSTOOD THAT THE INTEREST THAT STORES THE WATER HAS A RIGHT
SUPERIOR TO PRIOR APPROPRIATIONS THAT DO NOT STORE."  HE SOUGHT SENATOR
JOHNSON'S VIEWS ON WHAT RIGHTS THE CITY OF LOS ANGELES, WHICH HAD FILED
CLAIMS TO LARGE QUANTITIES OF COLORADO RIVER WATER, WOULD HAVE AFTER
THE GOVERNMENT HAD BUILT THE DAM AND IMPOUNDED THE WATERS.  IN REPLY TO
SENATOR WALSH'S SPECIFIC QUESTION WHETHER THE GOVERNMENT MIGHT "DISPOSE
OF THE STORED WATER AS IT SEES FIT," SENATOR JOHNSON SAID, "YES; UNDER
THE TERMS OF THIS BILL."  SENATOR JOHNSON ADDED THAT "EVERYTHING IN
THIS SCHEME, PLAN, OR DESIGN" WAS "DEPENDENT UPON THE SECRETARY OF THE
INTERIOR CONTRACTING WITH THOSE WHO DESIRE TO OBTAIN THE BENEFIT OF THE
CONSTRUCTION  ...  ."  HE ADMITTED THAT IT WAS POSSIBLE THAT THE
SECRETARY COULD "UTTERLY IGNORE" LOS ANGELES' APPROPRIATIONS.  (FN83) 

IN THIS SAME DISCUSSION, SENATOR HAYDEN EMPHASIZED THE SECRETARY'S
POWER TO ALLOCATE THE WATER BY MAKING CONTRACTS WITH USERS.  AFTER
SENATOR WALSH SAID THAT HE UNDERSTOOD SENATOR JOHNSON TO BE ARGUING
THAT THE SECRETARY MUST SATISFY LOS ANGELES' APPROPRIATIONS, SENATOR
HAYDEN CORRECTED HIM, POINTING OUT THAT SENATOR JOHNSON HAD QUALIFIED
HIS STATEMENT BY SAYING THAT "AFTER ALL, THE SECRETARY OF THE INTERIOR
COULD ALLOW THE CITY OF LOS ANGELES TO HAVE SUCH QUANTITY OF WATER AS
MIGHT BE DETERMINED BY CONTRACT."  SENATOR HAYDEN WENT ON TO SAY THAT,
WHERE DOMESTIC AND IRRIGATION NEEDS CONFLICTED, "THE SECRETARY OF THE
INTERIOR WILL NATURALLY DECIDE AS BETWEEN APPLICANTS, ONE WHO DESIRES
TO USE THE WATER FOR POTABLE PURPOSES IN THE CITY AND ANOTHER WHO
DESIRES TO USE IT FOR IRRIGATION, IF THERE IS NOT ENOUGH WATER TO GO
AROUND, THAT THE CITY SHALL HAVE THE PREFERENCE."  (FN84)  IT IS ALSO
SIGNIFICANT THAT TWO VIGOROUS OPPONENTS OF THE BILL, ARIZONA'S
REPRESENTATIVE DOUGLAS AND UTAH'S REPRESENTATIVE COLTON, CRITICIZED THE
BILL BECAUSE IT GAVE THE SECRETARY OF THE INTERIOR "ABSOLUTE CONTROL"
OVER THE DISPOSITION OF THE STORED WATERS.  (FN85) 

THE ARGUMENT THAT CONGRESS WOULD NOT HAVE DELEGATED TO THE SECRETARY
SO MUCH POWER TO APPORTION AND DISTRIBUTE THE WATER OVERLOOKS THE WAYS
IN WHICH HIS POWER IS LIMITED AND CHANNELED BY STANDARDS IN THE PROJECT
ACT.  IN PARTICULAR, THE SECRETARY IS BOUND TO OBSERVE THE ACT'S
LIMITATION OF 4,400,000 ACRE-FEET ON CALIFORNIA'S CONSUMPTIVE USES OUT
OF THE FIRST 7,500,000 ACRE-FEET OF MAINSTREAM WATER.  THIS NECESSARILY
LEAVES THE REMAINING 3,100,000 ACRE-FEET FOR THE USE OF ARIZONA AND
NEVADA, SINCE THEY ARE THE ONLY OTHER STATES WITH ACCESS TO THE MAIN
COLORADO RIVER.  NEVADA CONSISTENTLY TOOK THE POSITION, ACCEPTED BY THE
OTHER STATES THROUGHOUT THE DEBATES, THAT HER CONCEIVABLE NEEDS WOULD
NOT EXCEED 300,000 ACRE-FEET, WHICH, OF COURSE, LEFT 2,800,000 ACRE
FEET FOR ARIZONA'S USE.  MOREOVER, CONGRESS INDICATED THAT IT THOUGHT
THIS A PROPER DIVISION OF THE WATERS WHEN IN THE SECOND PARAGRAPH OF
SEC. 4(A) IT GAVE ADVANCE CONSENT TO A TRI-STATE COMPACT ADOPTING SUCH
DIVISION.  WHILE NO SUCH COMPACT WAS EVER ENTERED INTO, THE SECRETARY
BY HIS CONTRACTS HAS APPORTIONED THE WATER IN THE APPROVED AMOUNTS AND
THEREBY FOLLOWED THE GUIDELINES SET DOWN BY CONGRESS.  AND, AS THE
MASTER POINTED OUT, CONGRESS SET UP OTHER STANDARDS AND PLACED OTHER
SIGNIFICANT LIMITATIONS UPON THE SECRETARY'S POWER TO DISTRIBUTE THE
STORED WATERS.  IT SPECIFICALLY SET OUT IN ORDER THE PURPOSES FOR WHICH
THE SECRETARY MUST USE THE DAM AND THE RESERVOIR: 

"FIRST, FOR RIVER REGULATION, IMPROVEMENT OF NAVIGATION, AND FLOOD
CONTROL; SECOND, FOR IRRIGATION AND DOMESTIC USES AND SATISFACTION OF
PRESENT PERFECTED RIGHTS IN PURSUANCE OF ARTICLE VIII OF SAID COLORADO
RIVER COMPACT; AND THIRD, FOR POWER."  SEC. 6. 

THE ACT FURTHER REQUIRES THE SECRETARY TO MAKE REVENUE PROVISIONS IN
HIS COUNTRACTS ADEQUATE TO ENSURE THE RECOVERY OF THE EXPENSES OF
CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE DAM AND OTHER WORKS
WITHIN 50 YEARS AFTER THEIR CONSTRUCTION.  SEC. 4(B).  THE SECRETARY IS
DIRECTED TO MAKE WATER CONTRACTS FOR IRRIGATION AND DOMESTIC USES ONLY
FOR "PERMANENT SERVICE."  SEC. 5.  HE AND HIS PERMITTEES, LICENSEES,
AND CONTRACTEES ARE SUBJECT TO THE COLORADO RIVER COMPACT, SEC. 8(A),
AND THEREFORE CAN DO NOTHING TO UPSET OR ENCROACH UPON THE COMPACT'S
ALLOCATION OF COLORADO RIVER WATER BETWEEN THE UPPER AND LOWER BASINS. 
IN THE CONSTRUCTION, OPERATION, AND MANAGEMENT OF THE WORKS, THE
SECRETARY IS SUBJECT TO THE PROVISIONS OF THE RECLAMATION LAW, EXCEPT
AS THE ACT OTHERWISE PROVIDES.  SEC. 14.  ONE OF THE MOST SIGNIFICANT
LIMITATIONS IN THE ACT IS THAT THE SECRETARY IS REQUIRED TO SATISFY
PRESENT PERFECTED RIGHTS, A MATTER OF INTENSE IMPORTANCE TO THOSE WHO
HAD REDUCED THEIR WATER RIGHTS TO ACTUAL BENEFICIAL USE AT THE TIME THE
ACT BECAME EFFECTIVE.  SEC. 6.  AND, OF COURSE, ALL OF THE POWERS
GRANTED BY THE ACT ARE EXERCISED BY THE SECRETARY AND HIS WELL
ESTABLISHED EXECUTIVE DEPARTMENT RESPONSIBLE TO CONGRESS AND THE
PRESIDENT AND SUBJECT TO JUDICIAL REVIEW.  (FN86)    NOTWITHSTANDING
THE GOVERNMENT'S CONSTRUCTION, OWNERSHIP, OPERATION AND MAINTENANCE OF
THE VAST COLORADO RIVER WORKS THAT CONSERVE AND STORE THE RIVER'S
WATERS AND THE BROAD POWER GIVEN BY CONGRESS TO THE SECRETARY OF THE
INTERIOR TO MAKE CONTRACTS FOR THE DISTRIBUTION OF THE WATER, IT IS
ARGUED THAT CONGRESS IN SECS. 14 AND 18 OF THE ACT TOOK AWAY
PRACTICALLY ALL THE SECRETARY'S POWER BY PERMITTING THE STATES TO
DETERMINE WITH WHOM AND ON WHAT TERMS THE SECRETARY WOULD MAKE WATER
CONTRACTS.  SECTION 18 STATES: 

"NOTHING HEREIN SHALL BE CONSTRUED AS INTERFERING WITH SUCH RIGHTS AS
THE STATES NOW HAVE EITHER TO THE WATERS WITHIN THEIR BORDERS OR TO
ADOPT SUCH POLICIES AND ENACT SUCH LAWS AS THEY MAY DEEM NECESSARY WITH
RESPECT TO THE APPROPRIATION, CONTROL, AND USE OF WATERS WITHIN THEIR
BORDERS  ... ." 

MADE A SUPPLEMENT, SHALL GOVERN THE MANAGEMENT OF THE WORKS EXCEPT AS
OTHERWISE PROVIDED, AND SEC. 8 OF THE RECLAMATION ACT, MUCH LIKE SEC.
18 OF THE PROJECT ACT, PROVIDES THAT IT IS NOT TO BE CONSTRUED AS
AFFECTING OR INTERFERING WITH STATE LAWS "RELATING TO THE CONTROL,
APPROPRIATION, USE, OR DISTRIBUTION OF WATER USED IN IRRIGATION  ...
."  (FN87)  IN OUR VIEW, NOTHING IN ANY OF THESE PROVISIONS AFFECTS OUR
DECISION, STATED EARLIER, THAT IT IS THE ACT AND THE SECRETARY'S
CONTRACTS, NOT THE LAW OF PRIOR APPROPRIATION, THAT CONTROL THE
APPORTIONMENT OF WATER AMONG THE STATES.  MOREOVER, CONTRARY TO THE
MASTER'S CONCLUSION, WE HOLD THAT THE SECRETARY IN CHOOSING BETWEEN
USERS WITHIN EACH STATE AND IN SETTLING THE TERMS OF HIS CONTRACTS IS
NOT BOUND BY THESE SECTIONS TO FOLLOW STATE LAW. 

THE ARGUMENT THAT SEC. 8 OF THE RECLAMATION ACT REQUIRES THE UNITED
STATES IN THE DELIVERY OF WATER TO FOLLOW PRIORITIES LAID DOWN BY STATE
LAW HAS ALREADY BEEN DISPOSED OF BY THIS COURT IN IVANHOE IRR.  DIST. 
V. MCCRACKEN, 357 U.S. 275 (1958), AND REAFFIRMED IN CITY OF FRESNO V.
CALIFORNIA, 372 U.S. 627 (1963).  IN IVANHOE WE HELD THAT, EVEN THOUGH
SEC. 8 OF THE RECLAMATION ACT PRESERVED STATE LAW, THAT GENERAL
PROVISION COULD NOT OVERRIDE A SPECIFIC PROVISION OF THE SAME ACT
PROHIBITING A SINGLE LANDOWNER FROM GETTING WATER FOR MORE THAN 160
ACRES.  WE SAID: 

"AS WE READ SEC. 8, IT MERELY REQUIRES THE UNITED STATES TO COMPLY
WITH STATE LAW WHEN, IN THE CONSTRUCTION AND OPERATION OF A RECLAMATION
PROJECT, IT BECOMES NECESSARY FOR IT TO ACQUIRE WATER RIGHTS OR VESTED
INTERESTS THEREIN.  BUT THE ACQUISITION OF WATER RIGHTS MUST NOT BE
CONFUSED WITH THE OPERATION OF FEDERAL PROJECTS.  AS THE COURT SAID IN
NEBRASKA V. WYOMING, SUPRA, AT 615:  'WE DO NOT SUGGEST THAT WHERE
CONGRESS HAS PROVIDED A SYSTEM OF REGULATION FOR FEDERAL PROJECTS IT
MUST GIVE WAY BEFORE AN INCONSISTENT STATE SYSTEM.'  ...  WE READ
NOTHING IN SEC. 8 THAT COMPELS THE UNITED STATES TO DELIVER WATER ON
CONDITIONS IMPOSED BY THE STATE."  ID., AT 291-292. 

SINCE SEC. 8 OF THE RECLAMATION ACT DID NOT SUBJECT THE SECRETARY TO
STATE LAW IN DISPOSING OF WATER IN THAT CASE, WE CANNOT, CONSISTENTLY
WITH IVANHOE, HOLD THAT THE SECRETARY MUST BE BOUND BY STATE LAW IN
DISPOSING OF WATER UNDER THE PROJECT ACT. 

NOR DOES SEC. 18 OF THE PROJECT ACT REQUIRE THE SECRETARY TO CONTRACT
ACCORDING TO STATE LAW.  THAT ACT WAS PASSED IN THE EXERCISE OF
CONGRESSIONAL POWER TO CONTROL NAVIGABLE WATER FOR PURPOSES OF FLOOD
CONTROL, NAVIGATION, POWER GENERATION, AND OTHER OBJECTS, (FN88) AND IS
EQUALLY SUSTAINED BY THE POWER OF CONGRESS TO PROMOTE THE GENERAL
WELFARE THROUGH PROJECTS FOR RECLAMATION, IRRIGATION, OR OTHER INTERNAL
IMPROVEMENTS.  (FN89)  SECTION 18 MERELY PRESERVES SUCH RIGHTS AS THE
STATES "NOW" HAVE, THAT IS, SUCH RIGHTS AS THEY HAD AT THE TIME THE ACT
WAS PASSED.  WHILE THE STATES WERE GENERALLY FREE TO EXERCISE SOME
JURISDICTION OVER THESE WATERS BEFORE THE ACT WAS PASSED, THIS RIGHT
WAS SUBJECT TO THE FEDERAL GOVERNMENT'S RIGHT TO REGULATE AND DEVELOP
THE RIVER.  (FN90)  WHERE THE GOVERNMENT, AS HERE, HAS EXERCISED THIS
POWER AND UNDERTAKEN A COMPREHENSIVE PROJECT FOR THE IMPROVEMENT OF A
GREAT RIVER AND FOR THE ORDERLY AND BENEFICIAL DISTRIBUTION OF WATER,
THERE IS NO ROOM FOR INCONSISTENT STATE LAWS.  (FN91)  AS IN IVANHOE,
WHERE THE GENERAL PROVISION PRESERVING STATE LAW WAS HELD NOT TO
OVERRIDE A SPECIFIC PROVISION STATING THE TERMS FOR DISPOSITION OF THE
WATER, HERE WE HOLD THAT THE GENERAL SAVING LANGUAGE OF SEC. 18 CANNOT
BIND THE SECRETARY BY STATE LAW AND THERBY NULLIFY THE CONTRACT POWER
EXPRESSLY CONFERRED UPON HIM BY SEC. 5.   (FN92)  SECTION 18 PLAINLY
ALLOWS THE STATES TO DO THINGS NOT INCONSISTENT WITH THE PROJECT ACT OR
WITH FEDERAL CONTROL OF THE RIVER, FOR EXAMPLE, REGULATION OF THE USE
OF TRIBUTARY WATER AND PROTECTION OF PRESENT PERFECTED RIGHTS.  (FN93)
WHAT OTHER THINGS THE STATES ARE FREE TO DO CAN BE DECIDED WHEN THE
OCCASION ARISES.  BUT WHERE THE SECRETARY'S CONTRACTS, AS HERE, CARRY
OUT A CONGRESSIONAL PLAN FOR THE COMPLETE DISTRIBUTION OF WATERS TO
USERS, STATE LAW HAS NO PLACE.  (FN94)

BEFORE THE PROJECT ACT WAS PASSED, THE WATERS OF THE COLORADO RIVER,
THOUGH NUMBERED BY THE MILLIONS OF ACRE-FEET, FLOWED TOO HALTINGLY OR
TOO FREELY, RESULTING IN DROUGHTS AND FLOODS.  THE PROBLEMS CAUSED BY
THESE CONDITIONS PROVED TOO IMMENSE AND THE SOLUTIONS TOO COSTLY FOR
ANY ONE STATE OR ALL THE STATES TOGETHER.  IN ADDITION, THE STATES,
DESPITE REPEATED EFFORTS AT A SETTLEMENT, WERE UNABLE TO AGREE ON HOW
MUCH WATER EACH STATE SHOULD GET.  WITH THE HEALTH AND GROWTH OF THE
LOWER BASIN AT STAKE, CONGRESS RESPONDED TO THE PLEAS OF THE STATES TO
COME TO THEIR AID.  THE RESULT WAS THE PROJECT ACT AND THE HARNESSING
OF THE BOUNTIFUL WATERS OF THE COLORADO TO SUSTAIN GROWING CITIES, TO
SUPPORT EXPANDING INDUSTRIES, AND TO TRANSFORM DRY AND BARREN DESERTS
INTO LANDS THAT ARE LIVABLE AND PRODUCTIVE. 

IN UNDERTAKING THIS AMBITIOUS AND EXPENSIVE PROJECT FOR THE WELFARE
OF THE PEOPLE OF THE LOWER BASIN STATES AND OF THE NATION, THE UNITED
STATES ASSUMED THE RESPONSIBILITY FOR THE CONSTRUCTION, OPERATION, AND
SUPERVISION OF BOULDER DAM AND A GREAT COMPLEX OF OTHER DAMS AND
WORKS.  BEHIND THE DAM WERE STORED VIRTUALLY ALL THE WATERS OF THE MAIN
RIVER, THUS IMPOUNDING NOT ONLY THE NATURAL FLOW BUT ALSO THE GREAT
QUANTITIES OF WATER PREVIOUSLY ALLOWED TO RUN WASTE OR TO WREAK
DESTRUCTION.   THE IMPOUNDING OF THESE WATERS, ALONG WITH THEIR
REGULATED AND SYSTEMATIC RELEASE TO THOSE WITH CONTRACTS, HAS PROMOTED
THE SPECTACULAR DEVELOPMENT OF THE LOWER BASIN.  TODAY, THE UNITED
STATES OPERATES A WHOLE NETWORK OF USEFUL PROJECTS UP AND DOWN THE
RIVER, INCLUDING THE HOOVER DAM, DAVIS DAM, PARKER DAM, HEADGATE ROCK
DAM, PALO VERDE DAM, IMPERIAL DAM, LAGUNA DAM, MORELOS DAM, AND THE ALL
AMERICAN CANAL SYSTEM, AND MANY LESSER WORKS.  IT WAS ONLY NATURAL THAT
THE UNITED STATES, WHICH WAS TO MAKE THE BENEFITS AVAILABLE AND WHICH
HAD ACCEPTED THE RESPONSIBILITY FOR THE PROJECT'S OPERATION, WOULD WANT
TO MAKE CERTAIN THAT THE WATERS WERE EFFECTIVELY USED.  ALL THIS VAST,
INTERLOCKING MACHINERY - A DOZEN MAJOR WORKS DELIVERING WATER ACCORDING
TO CONGRESSIONALLY FIXED PRIORITIES FOR HOME, AGRICULTURAL, AND
INDUSTRIAL USES TO PEOPLE SPREAD OVER THOUSANDS OF SQUARE MILES - COULD
FUNCTION EFFICIENTLY ONLY UNDER UNITARY MANAGEMENT, ABLE TO FORMULATE
AND SUPERVISE A COORDINATED PLAN THAT COULD TAKE ACCOUNT OF THE
DIVERSE, OFTEN CONFLICTING INTERESTS OF THE PEOPLE AND COMMUNITIES OF
THE LOWER BASIN STATES.  RECOGNIZING THIS, CONGRESS PUT THE SECRETARY
OF THE INTERIOR IN CHARGE OF THESE WORKS AND ENTRUSTED HIM WITH
SUFFICIENT POWER, PRINCIPALLY THE SEC. 5 CONTRACT POWER, TO DIRECT,
MANAGE, AND COORDINATE THEIR OPERATION.  SUBJECTING THE SECRETARY TO
THE VARYING, POSSIBLY INCONSISTENT, COMMANDS OF THE DIFFERENT STATE
LEGISLATURES COULD FRUSTRATE EFFICIENT OPERATION OF THE PROJECT AND
THWART FULL REALIZATION OF THE BENEFITS CONGRESS INTENDED THIS NATIONAL
PROJECT TO BESTOW.  WE ARE SATISFIED THAT THE SECRETARY'S POWER MUST BE
CONSTRUED TO PERMIT HIM, WITHIN THE BOUNDARIES SET DOWN IN THE ACT, TO
ALLOCATE AND DISTRIBUTE THE WATERS OF THE MAINSTREAM OF THE COLORADO
RIVER. 

                                       II.

                    PROVISIONS IN THE SECRETARY'S CONTRACTS. 

A. DIVERSIONS ABOVE LAKE MEAD.  - THE SECRETARY'S CONTRACTS WITH
ARIZONA AND NEVADA PROVIDE THAT ANY WATERS DIVERTED BY THOSE STATES OUT
OF THE MAINSTREAM OR THE TRIBUTARIES ABOVE LAKE MEAD MUST BE CHARGED TO
THEIR RESPECTIVE LOWER BASIN APPORTIONMENTS.  THE MASTER, HOWEVER, TOOK
THE VIEW THAT THE APPORTIONMENT WAS TO BE MADE OUT OF THE WATERS
ACTUALLY STORED AT LAKE MEAD OR FLOWING IN THE MAINSTREAM BELOW LAKE
MEAD.  HE THEREFORE HELD THAT THE SECRETARY WAS WITHOUT POWER TO CHARGE
ARIZONA AND NEVADA FOR DIVERSIONS MADE BY THEM FROM THE 275-MILE
STRETCH OF RIVER BETWEEN LEE FERRY AND LAKE MEAD (FN95) OR FROM THE
TRIBUTARIES ABOVE LAKE MEAD.  THIS CONCLUSION WAS BASED ON THE MASTER'S
REASONING THAT THE SECRETARY WAS GIVEN PHYSICAL CONTROL OVER THE WATERS
STORED IN LAKE MEAD AND NOT OVER WATERS BEFORE THEY REACHED THE LAKE. 

WE HOLD THAT THE MASTER WAS CORRECT IN DECIDING THAT THE SECRETARY
CANNOT REDUCE WATER DELIVERIES TO ARIZONA AND NEVADA BY THE AMOUNT OF
THEIR USES FROM TRIBUTARIES ABOVE LAKE MEAD, FOR, AS WE HAVE HELD,
CONGRESS IN THE PROJECT ACT INTENDED TO APPORTION ONLY THE MAINSTREAM,
LEAVING TO EACH STATE ITS OWN TRIBUTARIES.  WE DISAGREE, HOWEVER, WITH
THE MASTER'S HOLDING THAT THE SECRETARY IS POWERLESS TO CHARGE STATES
FOR DIVERSIONS FROM THE MAINSTREAM ABOVE LAKE MEAD.  WHAT CONGRESS WAS
DOING IN THE PROJECT ACT WAS PROVIDING FOR AN APPORTIONMENT AMONG THE
LOWER BASIN STATES OF THE WATER ALLOCATED TO THAT BASIN BY THE COLORADO
RIVER COMPACT.  THE LOWER BASIN, WITH WHICH CONGRESS WAS DEALING,
BEGINS AT LEE FERRY, AND IT WAS ALL THE WATER IN THE MAINSTREAM BELOW
LEE FERRY THAT CONGRESS INTENDED TO DIVIDE AMONG THE STATES.  WERE WE
TO REFUSE THE SECRETARY THE POWER TO CHARGE STATES FOR DIVERSIONS FROM
THE MAINSTREAM BETWEEN LEE FERRY AND THE DAMSITE, WE WOULD ALLOW
INDIVIDUAL STATES, BY MAKING DIVERSIONS THAT DEPLETE THE LOWER BASIN'S
ALLOCATION, TO UPSET THE WHOLE PLAN OF APPORTIONMENT ARRIVED AT BY
CONGRESS TO SETTLE THE LONG-STANDING DISPUTE IN THE LOWER BASIN.  THAT
THE CONGRESSIONAL APPORTIONMENT SCHEME WOULD BE UPSET CAN EASILY BE
DEMONSTRATED.  CALIFORNIA, FOR EXAMPLE, HAS BEEN ALLOTTED 4,400,000
ACRE-FEET OF MAINSTREAM WATER.  IF ARIZONA AND NEVADA CAN, WITHOUT
BEING CHARGED FOR IT, DIVERT WATER FROM THE RIVER ABOVE LAKE MEAD, THEN
CALIFORNIA COULD NOT GET THE SHARE CONGRESS INTENDED HER TO HAVE. 

B. NEVADA CONTRACT.  - NEVADA HAS EXCEPTED TO HER INCLUSION IN
PARAGRAPH IIB)(7) OF THE MASTER'S RECOMMENDED DECREE, WHICH PROVIDES
THAT "MAINSTREAM WATER SHALL BE DELIVERED TO USERS IN ARIZONA,
CALIFORNIA AND NEVADA ONLY IF CONTRACTS HAVE BEEN MADE BY THE SECRETARY
OF THE INTERIOR, PURSUANT TO SECTION 5 OF THE BOULDER CANYON PROJECT
ACT, FOR DELIVERY OF SUCH WATER."  WHILE THE CALIFORNIA CONTRACTS ARE
DIRECTLY WITH WATER USERS AND THE ARIZONA CONTRACT SPECIFICALLY
CONTEMPLATES FURTHER SUBCONTRACTS WITH ACTUAL USERS, IT IS ARGUED THAT
THE NEVADA CONTRACT, MADE BY THE SECRETARY DIRECTLY WITH THE STATE OF
NEVADA THROUGH HER COLORADO RIVER COMMISSION, SHOULD BE CONSTRUED AS A
CONTRACT TO DELIVER WATER TO THE STATE WITHOUT THE NECESSITY OF
SUBCONTRACTS BY THE SECRETARY DIRECTLY WITH NEVADA WATER USERS.  THE
UNITED STATES DISAGREES, CONTENDING THAT PROPERLY CONSTRUED THE NEVADA
CONTRACT, LIKE THE SECRETARY'S GENERAL CONTRACT WITH ARIZONA, DOES NOT
EXHAUSE THE SECRETARY'S POWER TO REQUIRE NEVADA WATER USERS OTHER THAN
THE STATE TO MAKE FURTHER CONTRACTS.  TO CONSTRUE THE NEVADA CONTRACT
OTHERWISE, THE GOVERNMENT SUGGESTS, WOULD BRING IT IN CONFLICT WITH THE
PROVISION OF SEC. 5 OF THE PROJECT ACT THAT "NO PERSON SHALL HAVE OR BE
ENTITLED TO HAVE THE USE FOR ANY PURPOSE OF THE WATER STORED AS
AFORESAID EXCEPT BY CONTRACT (WITH THE SECRETARY) MADE AS HEREIN
STATED."  ACCEPTANCE OF NEVADA'S CONTENTION HERE WOULD NOT ONLY
UNDERMINE THIS PLAIN CONGRESSIONAL REQUIREMENT THAT WATER USERS HAVE
CONTRACTS WITH THE SECRETARY BUT WOULD LIKEWISE TRANSFER FROM THE
SECRETARY TO NEVADA A LARGE PART, IF NOT ALL, OF THE SECRETARY'S POWER
TO DETERMINE WITH WHOM HE WILL CONTRACT AND ON WHAT TERMS.  WE HAVE
ALREADY HELD THAT THE CONTRACTUAL POWER GRANTED THE SECRETARY CANNOT BE
DILUTED IN THIS MANNER.  WE THEREFORE REJECT NEVADA'S CONTENTION. 

                                    III. 

      APPORTIONMENT AND CONTRACTS IN TIME

                  OF SHORTAGE. 

WE HAVE AGREED WITH THE MASTER THAT THE SECRETARY'S CONTRACTS WITH
ARIZONA FOR 2,800,000 ACRE-FEET OF WATER AND WITH NEVADA FOR 300,000,
TOGETHER WITH THE LIMITATION OF CALIFORNIA TO 4,400,000 ACRE-FEET,
EFFECT A VALID APPORTIONMENT OF THE FIRST 7,500,000 ACRE-FEET OF
MAINSTREAM WATER IN THE LOWER BASIN.  THERE REMAINS THE QUESTION OF
WHAT SHALL BE DONE IN TIME OF SHORTAGE.  THE MASTER, WHILE DECLINING TO
MAKE ANY FINDINGS AS TO WHAT FUTURE SUPPLY MIGHT BE EXPECTED,
NEVERTHELESS DECIDED THAT THE PROJECT ACT AND THE SECRETARY'S CONTRACTS
REQUIRE THE SECRETARY IN CASE OF SHORTAGE TO DIVIDE THE BURDEN AMONG
THE THREE STATES IN THIS PROPORTION:  CALIFORNIA 4.4/7.5; ARIZONA
2.8/7.5; NEVADA .3/7.5.  WHILE PRO RATA SHARING OF WATER SHORTAGES
SEEMS EQUITABLE ON ITS FACE, (FN96) MORE CONSIDERED JUDGMENT MAY
DEMONSTRATE QUITE THE CONTRARY.  CERTAINLY WE SHOULD NOT BIND THE
SECRETARY TO THIS FORMULA.  WE HAVE HELD THAT THE SECRETARY IS VESTED
WITH CONSIDERABLE CONTROL OVER THE APPORTIONMENT OF COLORADO RIVER
WATERS.  AND NEITHER THE PROJECT ACT NOR THE WATER CONTRACTS REQUIRE
THE USE OF ANY PARTICULAR FORMULA FOR APPORTIONING SHORTAGES.  WHILE
THE SECRETARY MUST FOLLOW THE STANDARDS SET OUT IN THE ACT, HE
NEVERTHELESS IS FREE TO CHOOSE AMONG THE RECOGNIZED METHODS OF
APPORTIONMENT OR TO DEVISE REASONABLE METHODS OF HIS OWN.  THIS CHOICE,
AS WE SEE IT, IS PRIMARILY HIS, NOT THE MASTER'S OR EVEN OURS.  AND THE
SECRETARY MAY OR MAY NOT CONCLUDE THAT A PRO RATA DIVISION IS THE BEST
SOLUTION. 

IT MUST BE REMEMBERED THAT THE SECRETARY'S DECISION MAY HAVE AN
EFFECT NOT ONLY ON IRRIGATION USES BUT ALSO ON OTHER IMPORTANT
FUNCTIONS FOR WHICH CONGRESS BROUGHT THIS GREAT PROJECT INTO BEING -
FLOOD CONTROL, IMPROVEMENT OF NAVIGATION, REGULATION OF FLOW, AND
GENERATION AND DISTRIBUTION OF ELECTRIC POWER.  REQUIRING THE SECRETARY
TO PRORATE SHORTAGES WOULD STRIP HIM OF THE VERY POWER OF CHOICE WHICH
WE THINK CONGRESS, FOR REASONS SATISFACTORY TO IT, VESTED IN HIM AND
WHICH WE SHOULD NOT IMPAIR OR TAKE AWAY FROM HIM.  FOR THE SAME REASONS
WE CANNOT ACCEPT CALIFORNIA'S CONTENTION THAT IN CASE OF SHORTAGE EACH
STATE'S SHARE OF WATER SHOULD BE DETERMINED BY THE JUDICIAL DOCTRINE OF
EQUITABLE APPORTIONMENT OR BY THE LAW OR PRIOR APPROPRIATION.  THESE
PRINCIPLES, WHILE THEY MAY PROVIDE SOME GUIDANCE, ARE NOT BINDING UPON
THE SECRETARY WHERE, AS HERE, CONGRESS, WITH FULL POWER TO DO SO, HAS
PROVIDED THAT THE WATERS OF A NAVIGABLE STREAM SHALL BE HARNESSED,
CONSERVED, STORED, AND DISTRIBUTED THROUGH A GOVERNMENT AGENCY UNDER A
STATUTORY SCHEME. 

NONE OF THIS IS TO SAY THAT IN CASE OF SHORTAGE, THE SECRETARY CANNOT
ADOPT A METHOD OF PRORATION OR THAT HE MAY NOT LAY STRESS UPON PRIORITY
OF USE, LOCAL LAWS AND CUSTOMS, OR ANY OTHER FACTORS THAT MIGHT BE
HELPFUL IN REACHING AN INFORMED JUDGMENT IN HARMONY WITH THE ACT, THE
BEST INTERESTS OF THE BASIN STATES, AND THE WELFARE OF THE NATION.  IT
WILL BE TIME ENOUGH FOR THE COURTS TO INTERVENE WHEN AND IF THE
SECRETARY, IN MAKING APPORTIONMENTS OR CONTRACTS, DEVIATES FROM THE
STANDARDS CONGRESS HAS SET FOR HIM TO FOLLOW, INCLUDING HIS OBLIGATION
TO RESPECT "PRESENT PERFECTED RIGHTS" AS OF THE DATE THE ACT WAS
PASSED.  AT THIS TIME THE SECRETARY HAS MADE NO DECISION AT ALL BASED
ON AN ACTUAL OR ANTICIPATED SHORTAGE OF WATER, AND SO THERE IS NO
ACTION OF HIS IN THIS RESPECT FOR US TO REVIEW.  FINALLY, AS THE MASTER
POINTED OUT, CONGRESS STILL HAS BROAD POWERS OVER THIS NAVIGABLE
INTERNATIONAL STREAM.  CONGRESS CAN UNDOUBTEDLY REDUCE OR ENLARGE THE
SECRETARY'S POWER IF IT WISHES.  UNLESS AND UNTIL IT DOES, WE LEAVE IN
THE HANDS OF THE SECRETARY, WHERE CONGRESS PLACED IT, FULL POWER TO
CONTROL, MANAGE, AND OPERATE THE GOVERNMENT'S COLORADO RIVER WORKS AND
TO MAKE CONTRACTS FOR THE SALE AND DELIVERY OF WATER ON SUCH TERMS AS
ARE NOT PROHIBITED BY THE PROJECT ACT. 

                                  IV.

  ARIZONA-NEW MEXICO GILA CONTROVERSY. 

ARIZONA AND NEW MEXICO PRESENTED THE MASTER WITH CONFLICTING CLAIMS
TO WATER IN THE GILA RIVER, THE TRIBUTARY THAT RISES IN NEW MEXICO AND
FLOWS THROUGH ARIZONA.  HAVING DETERMINED THAT TRIBUTARIES ARE NOT
WITHIN THE REGULATORY PROVISIONS OF THE PROJECT ACT THE MASTER HELD
THAT THIS INTERSTATE DISPUTE SHOULD BE DECIDED UNDER THE PRINCIPLES OF
EQUITABLE APPORTIONMENT.  AFTER HEARING EVIDENCE ON THIS ISSUE, THE
MASTER ACCEPTED A COMPROMISE SETTLEMENT AGREED UPON BY THESE STATES AND
INCORPORATED THAT SETTLEMENT IN HIS FINDINGS AND CONCLUSIONS, AND IN
PART IVA)(B)(C)(D) OF HIS RECOMMENDED DECREE.  NO EXCEPTIONS HAVE BEEN
FILED TO THESE RECOMMENDATIONS BY ANY OF THE PARTIES AND THEY ARE
ACCORDINGLY ACCEPTED BY US.  EXCEPT FOR THOSE DISCUSSED IN PART V, WE
ARE NOT REQUIRED TO DECIDE ANY OTHER DISPUTES BETWEEN TRIBUTARY USERS
OR BETWEEN MAINSTREAM AND TRIBUTARY USERS. 

                  V.

                          CLAIMS OF THE UNITED STATES. 

IN THESE PROCEEDINGS, THE UNITED STATES HAS ASSERTED CLAIMS TO WATERS
IN THE MAIN RIVER AND IN SOME OF THE TRIBUTARIES FOR USE ON INDIAN
RESERVATIONS, NATIONAL FORESTS, RECREATIONAL AND WILDLIFE AREAS AND
OTHER GOVERNMENT LANDS AND WORKS.  WHILE THE MASTER PASSED UPON SOME OF
THESE CLAIMS, HE DECLINED TO REACH OTHERS, PARTICULARLY THOSE RELATING
TO TRIBUTARIES.  WE APPROVE HIS DECISION AS TO WHICH CLAIMS REQUIRED
ADJUDICATION, AND LIKEWISE WE APPROVE THE DECREE HE RECOMMENDED FOR THE
GOVERNMENT CLAIMS HE DID DECIDE.  WE SHALL DISCUSS ONLY THE CLAIMS OF
THE UNITED STATES ON BEHALF OF THE INDIAN RESERVATIONS. 

THE GOVERNMENT, ON BEHALF OF FIVE INDIAN RESERVATIONS IN ARIZONA,
CALIFORNIA, AND NEVADA, ASSERTED RIGHTS TO WATER IN THE MAINSTREAM OF
THE COLORADO RIVER.  (FN97)  THE COLORADO RIVER RESERVATION, LOCATED
PARTLY IN ARIZONA AND PARTLY IN CALIFORNIA, IS THE LARGEST.  IT WAS
ORIGINALLY CREATED BY AN ACT OF CONGRESS IN 1865, (FN98) BUT ITS AREA
WAS LATER INCREASED BY EXECUTIVE ORDER.  (FN99)  OTHER RESERVATIONS
WERE CREATED BY EXECUTIVE ORDERS AND AMENDMENTS TO THEM, RANGING IN
DATES FROM 1870 TO 1907.  (FN100)  THE MASTER FOUND BOTH AS A MATTER OF
FACT AND LAW THAT WHEN THE UNITED STATES CREATED THESE RESERVATIONS OR
ADDED TO THEM, IT RESERVED NOT ONLY LAND BUT ALSO THE USE OF ENOUGH
WATER FROM THE COLORADO TO IRRIGATE THE IRRIGABLE PORTIONS OF THE
RESERVED LANDS.  THE AGGREGATE QUANTITY OF WATER WHICH THE MASTER HELD
WAS RESERVED FOR ALL THE RESERVATIONS IS ABOUT 1,000,000 ACRE-FEET, TO
BE USED ON AROUND 135,000 IRRIGABLE ACRES OF LAND.  HERE, AS BEFORE THE
MASTER, ARIZONA ARGUES THAT THE UNITED STATES HAD NO POWER TO MAKE A
RESERVATION OF NAVIGABLE WATERS AFTER ARIZONA BECAME A STATE; THAT
NAVIGABLE WATERS COULD NOT BE RESERVED BY EXECUTIVE ORDERS; THAT THE
UNITED STATES DID NOT INTEND TO RESERVE WATER FOR THE INDIAN
RESERVATIONS; THAT THE AMOUNT OF WATER RESERVED SHOULD BE MEASURED BY
THE REASONABLY FORESEEABLE NEEDS OF THE INDIANS LIVING ON THE
RESERVATION RATHER THAN BY THE NUMBER OF IRRIGABLE ACRES; AND, FINALLY,
THAT THE JUDICIAL DOCTRINE OF EQUITABLE APPORTIONMENT SHOULD BE USED TO
DIVIDE THE WATER BETWEEN THE INDIANS AND THE OTHER PEOPLE IN THE STATE
OF ARIZONA. 

THE LAST AGRUMENT IS EASILY ANSWERED.  THE DOCTRINE OF EQUITABLE
APPORTIONMENT IS A METHOD OF RESOLVING WATER DISPUTES BETWEEN STATES. 
IT WAS CREATED BY THIS COURT IN THE EXERCISE OF ITS ORIGINAL
JURISDICTION OVER CONTROVERSIES IN WHICH STATES ARE PARTIES.  AN INDIAN
RESERVATION IS NOT A STATE.  AND WHILE CONGRESS HAS SOMETIMES LEFT
INDIAN RESERVATIONS CONSIDERABLE POWER TO MANAGE THEIR OWN AFFAIRS, WE
ARE NOT CONVINCED BY ARIZONA'S ARGUMENT THAT EACH RESERVATION IS SO
MUCH LIKE A STATE THAT ITS RIGHTS TO WATER SHOULD BE DETERMINED BY THE
DOCTRINE OF EQUITABLE APPORTIONMENT.  MOREOVER, EVEN WERE WE TO TREAT
AN INDIAN RESERVATION LIKE A STATE, EQUITABLE APPORTIONMENT WOULD STILL
NOT CONTROL SINCE, UNDER OUR VIEW, THE INDIAN CLAIMS HERE ARE GOVERNED
BY THE STATUTES AND EXECUTIVE ORDERS CREATING THE RESERVATIONS. 

ARIZONA'S CONTENTION THAT THE FEDERAL GOVERNMENT HAD NO POWER, AFTER
ARIZONA BECAME A STATE, TO RESERVE WATERS FOR THE USE AND BENEFIT OF
FEDERALLY RESERVED LANDS RESTS LARGELY UPON STATEMENTS IN POLLARD'S
LESSEE V. HAGAN, 3 HOW.  212 (1845), AND SHIVELY V. BOWLBY, 152 U.S. 1
(1894).  THOSE CASES AND OTHERS THAT FOLLOWED THEM (FN101) GAVE RISE TO
THE DOCTRINE THAT LANDS UNDERLYING NAVIGABLE WATERS WITHIN TERRITORY
ACQUIRED BY THE GOVERNMENT ARE HELD IN TRUST FOR FUTURE STATES AND THAT
TITLE TO SUCH LANDS IS AUTOMATICALLY VESTED IN THE STATES UPON
ADMISSION TO THE UNION.  BUT THOSE CASES INVOLVED ONLY THE SHORES OF
AND LANDS BENEATH NAVIGABLE WATERS.  THEY DO NOT DETERMINE THE PROBLEM
BEFORE US AND CANNOT BE ACCEPTED AS LIMITING THE BROAD POWERS OF THE
UNITED STATES TO REGULATE NAVIGABLE WATERS UNDER THE COMMERCE CLAUSE TO
REGULATE GOVERNMENT LANDS UNDER ART. IV, SEC. 3, OF THE CONSTITUTION. 
WE HAVE NO DOUBT ABOUT THE POWER OF THE UNITED STATES UNDER THESE
CLAUSES TO RESERVE WATER RIGHTS FOR ITS RESERVATIONS AND ITS PROPERTY. 

ARIZONA ALSO ARGUES THAT, IN ANY EVENT, WATER RIGHTS CANNOT BY
RESERVED BY EXECUTIVE ORDER.  SOME OF THE RESERVATIONS OF INDIAN LANDS
HERE INVOLVED WERE MADE ALMOST 100 YEARS AGO, AND ALL OF THEM WERE MADE
OVER 45 YEARS AGO.  IN OUR VIEW, THESE RESERVATIONS, LIKE THOSE CREATED
DIRECTLY BY CONGRESS, WERE NOT LIMITED TO LAND, BUT INCLUDED WATERS AS
WELL.  CONGRESS AND THE EXECUTIVE HAVE EVER SINCE RECOGNIZED THESE AS
INDIAN RESERVATIONS.  NUMEROUS APPROPRIATIONS, INCLUDING APPROPRIATIONS
FOR IRRIGATION PROJECTS, HAVE BEEN MADE BY CONGRESS.  THEY HAVE BEEN
UNIFORMLY AND UNIVERSALLY TREATED AS RESERVATIONS BY MAP MAKERS,
SURVEYORS, AND THE PUBLIC.  WE CAN GIVE BUT SHORT SHRIFT AT THIS LATE
DATE TO THE ARGUMENT THAT THE RESERVATIONS EITHER OF LAND OR WATER ARE
INVALID BECAUSE THEY WERE ORIGINALLY SET APART BY THE EXECUTIVE. 
(FN102) 

ARIZONA ALSO CHALLENGES THE MASTER'S HOLDING AS TO THE INDIAN
RESERVATIONS ON TWO OTHER GROUNDS: FIRST, THAT THERE IS A LACK OF
EVIDENCE SHOWING THAT THE UNITED STATES IN ESTABLISHING THE
RESERVATIONS INTENDED TO RESERVE WATER FOR THEM; SECOND, THAT EVEN IF
WATER WAS MEANT TO BE RESERVED THE MASTER HAS AWARDED TOO MUCH WATER. 
WE REJECT BOTH OF THESE CONTENTIONS.  MOST OF THE LAND IN THESE
RESERVATIONS IS AND ALWAYS HAS BEEN ARID.  IF THE WATER NECESSARY TO
SUSTAIN LIFE IS TO BE HAD, IT MUST COME FROM THE COLORADO RIVER OR ITS
TRIBUTARIES.  IT CAN BE SAID WITHOUT OVERSTATEMENT THAT WHEN THE
INDIANS WERE PUT ON THESE RESERVATIONS THEY WERE NOT CONSIDERED TO BE
LOCATED IN THE MOST DESIRABLE AREA OF THE NATION.  IT IS IMPOSSIBLE TO
BELIEVE THAT WHEN CONGRESS CREATED THE GREAT COLORADO RIVER INDIAN
RESERVATION AND WHEN THE EXECUTIVE DEPARTMENT OF THIS NATION CREATED
THE OTHER RESERVATIONS THEY WERE UNAWARE THAT MOST OF THE LNADS WERE OF
THE DESERT KIND - HOT, SCORCHING SANDS - AND THAT WATER FROM THE RIVER
WOULD BE ESSENTIAL TO THE LIFE OF THE INDIAN PEOPLE AND TO THE ANIMALS
THEY HUNTED AND THE CROPS THEY RAISED.  IN THE DEBATE LEADING TO
APPROVAL OF THE FIRST CONGRESSIONAL APPROPRIATION FOR IRRIGATION OF THE
COLORADO RIVER INDIAN RESERVATION, THE DELEGATE FROM THE TERRITORY OF
ARIZONA MADE THIS STATEMENT: 

"IRRIGATING CANALS ARE ESSENTIAL TO THE PROSPERITY OF THESE INDIANS. 
WITHOUT WATER THERE CAN BE NO PRODUCTION, NO LIFE; AND ALL THEY ASK OF
YOU IS TO GIVE THEM A FEW AGRICULTURAL IMPLEMENTS TO ENABLE THEM TO DIG
AN IRRIGATING CANAL BY WHICH THEIR LANDS MAY BE WATERED AND THEIR
FIELDS IRRIGATED, SO THAT THEY MAY ENJOY THE MEANS OF EXISTENCE.  YOU
MUST PROVIDE THESE INDIANS WITH THE MEANS OF SUBSISTENCE OR THEY WILL
TAKE BY ROBBERY FROM THOSE WHO HAVE.  DURING THE LAST YEAR I HAVE SEEN
A NUMBER OF THESE INDIANS STARVED TO DEATH FOR WANT OF FOOD."  CONG.
GLOBE, 38TH CONG., 2D SESS. 1321 (1865). 

THE QUESTION OF THE GOVERNMENT'S IMPLIED RESERVATION OF WATER RIGHTS
UPON THE CREATION OF AN INDIAN RESERVATION WAS BEFORE THIS COURT IN
WINTERS V. UNITED STATES, 207 U.S. 564, DECIDED IN 1908.   MUCH THE
SAME ARGUMENT MADE TO US WAS MADE IN WINTERS TO PERSUADE THE COURT TO
HOLD THAT CONGRESS HAD CREATED AN INDIAN RESERVATION WITHOUT INTENDING
TO RESERVE WATERS NECESSARY TO MAKE THE RESERVATION LIVABLE.  THE COURT
REJECTED ALL OF THE ARGUMENTS.  AS TO WHETHER WATER WAS INTENDED TO BE
RESERVED, THE COURT SAID, AT P. 576: 

"THE LANDS WERE ARID AND, WITHOUT IRRIGATION, WERE PRACTICALLY
VALUELESS.  AND YET, IT IS CONTENDED, THE MEANS OF IRRIGATION WERE
DELIBERATELY GIVEN UP BY THE INDIANS AND DELIBERATELY ACCEPTED BY THE
GOVERNMENT.  THE LANDS CEDED WERE, IT IS TRUE, ALSO ARID; AND SOME
ARGUMENT MAY BE URGED, AND IS URGED, THAT WITH THEIR CESSION THERE WAS
THE CESSION OF THE WATERS, WITHOUT WHICH THEY WOULD BE VALUELESS, AND
'CIVILIZED COMMUNITITES COULD NOT BE ESTABLISHED THEREON.'  AND THIS,
IT IS FURTHER CONTENDED, THE INDIANS KNEW, AND YET MADE NO RESERVATION
OF THE WATERS.  WE REALIZE THAT THERE IS A CONFLICT OF IMPLICATIONS,
BUT THAT WHICH MAKES FOR THE RETENTION OF THE WATERS IS OF GREATER
FORCE THAN THAT WHICH MAKES FOR THEIR CESSION." 

THE COURT IN WINTERS CONCLUDED THAT THE GOVERNMENT, WHEN IT CREATED
THAT INDIAN RESERVATION, INTENDED TO DEAL FAIRLY WITH THE INDIANS BY
RESERVING FOR THEM THE WATERS WITHOUT WHICH THEIR LANDS WOULD HAVE BEEN
USELESS.  WINTERS HAS BEEN FOLLOWED BY THIS COURT AS RECENTLY AS 1939
IN UNITED STATES V. POWERS, 305 U.S. 527.  WE FOLLOW IT NOW AND AGREE
THAT THE UNITED STATES DID RESERVE THE WATER RIGHTS FOR THE INDIANS
EFFECTIVE AS OF THE TIME THE INDIAN RESERVATIONS WERE CREATED.  THIS
MEANS, AS THE MASTER HELD, THAT THESE WATER RIGHTS, HAVING VESTED
BEFORE THE ACT BECAME EFFECTIVE ON JUNE 25, 1929, ARE "PRESENT
PERFECTED RIGHTS" AND AS SUCH ARE ENTITLED TO PRIORITY UNDER THE ACT. 

WE ALSO AGREE WITH THE MASTER'S CONCLUSION AS TO THE QUANTITY OF
WATER INTENDED TO BE RESERVED.  HE FOUND THAT THE WATER WAS INTENDED TO
SATISFY THE FUTURE AS WELL AS THE PRESENT NEEDS OF THE INDIAN
RESERVATIONS AND RULED THAT ENOUGH WATER WAS RESERVED TO IRRIGATE ALL
THE PRACTICABLY IRRIGABLE ACREAGE ON THE RESERVATIONS.  ARIZONA, ON THE
OTHER HAND, CONTENDS THAT THE QUANTITY OF WATER RESERVED SHOULD BE
MEASURED BY THE INDIANS'"REASONABLY FORESEEABLE NEEDS," WHICH, IN FACT,
MEANS BY THE NUMBER OF INDIANS.  HOW MANY INDIANS THERE WILL BE AND
WHAT THEIR FUTURE NEEDS WILL BE CAN ONLY BE GUESSED.  WE HAVE
CONCLUDED, AS DID THE MASTER, THAT THE ONLY FEASIBLE AND FAIR WAY BY
WHICH RESERVED WATER FOR THE RESERVATIONS CAN BE MEASURED IS IRRIGABLE
ACREAGE.  THE VARIOUS ACREAGES OR IRRIGABLE LAND WHICH THE MASTER FOUND
TO BE ON THE DIFFERENT RESERVATIONS WE FIND TO BE REASONABLE.    WE
DISAGREE WITH THE MASTER'S DECISION TO DETERMINE THE DISPUTED
BOUNDARIES OF THE COLORADO RIVER INDIAN RESERVATION AND THE FORT MOHAVE
INDIAN RESERVATION.  WE HOLD THAT IT IS UNNECESSARY TO RESOLVE THOSE
DISPUTES HERE.  SHOULD A DISPUTE OVER TITLE ARISE BECAUSE OF SOME
FUTURE REFUSAL BY THE SECRETARY TO DELIVER WATER TO EITHER AREA, THE
DISPUTE CAN BE SETTLED AT THAT TIME. 

THE MASTER RULED THAT THE PRINCIPLE UNDERLYING THE RESERVATION OF
WATER RIGHTS FOR INDIAN RESERVATIONS WAS EQUALLY APPLICABLE TO OTHER
FEDERAL ESTABLISHMENTS SUCH AS NATIONAL RECREATION AREAS AND NATIONAL
FORESTS.  WE AGREE WITH THE CONCLUSIONS OF THE MASTER THAT THE UNITED
STATES INTENDED TO RESERVE WATER SUFFICIENT FOR THE FUTURE REQUIREMENTS
OF THE LAKE MEAD NATIONAL RECREATION AREA, THE HAVASU LAKE NATIONAL
WILDLIFE REFUGE, THE IMPERIAL NATIONAL WILDLIFE REFUGE AND THE GILA
NATIONAL FOREST. 

WE REJECT THE CLAIM OF THE UNITED STATES THAT IT IS ENTITLED TO THE
USE, WITHOUT CHARGE AGAINST ITS CONSUMPTION, OF ANY WATERS THAT WOULD
HAVE BEEN WASTED BUT FOR SALVAGE BY THE GOVERNMENT ON ITS WILDLIFE
PRESERVES.  WHATEVER THE INTRINSIC MERITS OF THIS CLAIM, IT IS
INCONSISTENT WITH THE ACT'S COMMAND THAT CONSUMPTIVE USE SHALL BE
MEASURED BY DIVERSIONS LESS RETURNS TO THE RIVER. 

FINALLY, WE NOTE OUR AGREEMENT WITH THE MASTER THAT ALL USES OF
MAINSTREAM WATER WITHIN A STATE ARE TO BE CHARGED AGAINST THAT STATE'S
APPORTIONMENT, WHICH OF COURSE INCLUDES USES BY THE UNITED STATES. 

        VI.

                                     DECREE. 

WHILE WE HAVE IN THE MAIN AGREED WITH THE MASTER, THERE ARE SOME
PLACES WE HAVE DISAGREED AND SOME QUESTIONS ON WHICH WE HAVE NOT
RULED.  RATHER THAN ADOPT THE MASTER'S DECREE WITH AMENDMENTS OR APPEND
OUR OWN DECREE TO THIS OPINION, WE WILL ALLOW THE PARTIES, OR ANY OF
THEM, IF THEY WISH, TO SUBMIT BEFORE SEPTEMBER 16, 1963, THE FORM OF
DECREE TO CARRY THIS OPINION INTO EFFECT, FAILING WHICH THE COURT WILL
PREPARE AND ENTER AN APPROPRIATE DECREE AT THE NEXT TERM OF COURT.  IT
IS SO ORDERED. 

FN1  "THE JUDICIAL POWER SHALL EXTEND  ...  TO CONTROVERSIES BETWEEN
TWO OR MORE STATES  ...  . 

"IN ALL CASES  ...  IN WHICH A STATE SHALL BE PARTY, THE SUPREME
COURT SHALL HAVE ORIGINAL JURISDICTION."  U.S. CONST., ART. III, SEC.
2.  SEE ALSO 28 U.S.C. SEC. 1251(A)(1). 

THREE TIMES PREVIOUSLY ARIZONA HAS INSTITUTED ACTIONS IN THIS COURT
CONCERNING THE COLORADO RIVER.   ARIZONA V. CALIFORNIA, 283 U.S. 423
(1931); ARIZONA V. CALIFORNIA, 292 U.S. 341 (1934); ARIZONA V.
CALIFORNIA, 298 U.S. 558 (1936).  SEE ALSO UNITED STATES V. ARIZONA,
295 U.S. 174 (1935). 

FN2  PALO VERDE IRRIGATION DISTRICT, IMPERIAL IRRIGATION DISTRICT,
COACHELLA VALLEY COUNTY WATER DISTRICT, METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA, CITY OF LOS ANGELES, CITY OF SAN DIEGO, AND COUNTY
OF SAN DIEGO. 

FN3  344 U.S. 919 (1953)(INTERVENTION BY UNITED STATES); 347 U.S. 985
(1954)(INTERVENTION BY NEVADA); 350 U.S. 114 (1955)(JOINDER OF UTAH AND
NEW MEXICO). 

FN4  THE TWO ORDERS ARE REPORTED AT 347 U.S. 968 (1954), AND 350 U.S.
812 (1955). 

FN5  364 U.S. 940 (1961). 

FN6  BOULDER CANYON PROJECT ACT, 45 STAT. 1057 (1928), 43 U.S.C.
SECS. 617-617T. 

FN7  "(THE ALL-AMERICAN CANAL) WILL END AN INTOLERABLE SITUATION,
UNDER WHICH THE IMPERIAL VALLEY NOW SECURES ITS SOLE WATER SUPPLY FROM
A CANAL RUNNING FOR MANY MILES THROUGH MEXICO  ...  ."  S. REP. NO.
592, 70TH CONG., 1ST SESS. 8 (1928). 

FN8  DEPARTMENT OF THE INTERIOR, REPORT OF THE ALL-AMERICAN CANAL
BOARD (1919), 23-33.  THE THREE MEMBERS OF THE BOARD WERE ENGINEERS
WITH LONG EXPERIENCE IN WESTERN WATER PROBLEMS. 

FN9  41 STAT. 600 (1920). 

FN10  S. DOC. NO. 142, 67TH CONG., 2D SESS. (1922). 

FN11  ID., AT 1. 

FN12  THE REASONS GIVEN WERE: 

"1.  THE COLORADO RIVER IS INTERNATIONAL. 

"2.  THE STREAM AND MANY OF ITS TRIBUTARIES ARE INTERSTATE. 

"3.  IT IS A NAVIGABLE RIVER. 

"4.  ITS WATERS MAY BE MADE TO SERVE LARGE AREAS OF PUBLIC LANDS
NATURALLY DESERT IN CHARACTER. 

"5.  ITS PROBLEMS ARE OF SUCH MAGNITUDE AS TO BE BEYOND THE REACH OF
OTHER THAN NATIONAL SOLUTION."  IBID. 

FN13  ID., AT 21. 

FN14  THIS LAW PREVAILS EXCLUSIVELY IN ALL THE BASIN STATES EXCEPT
CALIFORNIA.  SEE I WIEL, WATER RIGHTS IN THE WESTERN STATES SEC. 66 (3D
ED., 1911); HUTCHINS, SELECTED PROBLEMS IN THE LAW OF WATER RIGHTS IN
THE WEST 30-31 (1942)(U.S. DEPT. OF AGRICULTURAL MISC. PUB.  NO. 418). 
EVEN IN CALIFORNIA IT IS IMPORTANT.  SEE 51.  CAL.  JUR. 2D WATERS
SECS. 257-264 (1959). 

FN15  HINDERLIDER V. LA PLATA RIVER & CHERRY CREEK DITCH CO., 304
U.S. 92, 98 (1938); ARIZONA V. CALIFORNIA, 283 U.S. 423, 459 (1931). 

FN16  THE DOCTRINE CONTINUES TO BE APPLIED INTERSTATE.  E.G.,
NEBRASKA V. WYOMING, 325 U.S. 589, 617-618 (1945). 

FN17  "DELPH E. CARPENTER, COLORADO RIVER COMMISSIONER FOR THE STATE
OF COLORADO, SUMMARIZED THE SITUATION PRODUCED BY THAT DECISION AS
FOLLOWS: 

"'THE UPPER STATE HAS BUT ONE ALTERNATIVE, THAT OF USING EVERY MEANS
TO RETARD DEVELOPMENT IN THE LOWER STATES UNTIL THE USES WITHIN THE
UPPER STATE HAVE REACHED THEIR MAXIMUM.  THE STATES MAY AVOID THIS
UNFORTUNATE SITUATION BY DETERMINING THEIR RESPECTIVE RIGHTS BY
INTERSTATE COMPACT BEFORE FURTHER DEVELOPMENT IN EITHER STATE, THUS
PERMITTING FREEDOM OF DEVELOPMENT IN THE LOWER STATE WITHOUT INJURY TO
FUTURE GROWTH IN THE UPPER.' 

"THE FINAL NEGOTIATION OF THE COMPACT TOOK PLACE IN THE ATMOSPHERE
PRODUCED BY THAT DECISION."  H.R. DOC. NO. 717, 80TH CONG., 2D SESS. 22
(1948). 

FN18  H.R. REP. NO. 191, 67TH CONG., 1ST SESS. (1921). 

FN19  42 STAT. 171 (1921). 

FN20  THE COMPACT CAN BE FOUND AT 70 CONG. REC. 324 (1928), AND U.S.
DEPT. OF THE INTERIOR, DOCUMENTS ON THE USE AND CONTROL OF THE WATERS
OF INTERSTATE AND INTERNATIONAL STREAMS 39 (1956). 

FN21  H.R. DOC. NO. 717, 80TH CONG., 2D SESS. 22 (1948). 

FN22  AN ACRE-FOOT OF WATER IS ENOUGH TO COVER AN ACRE OF LAND WITH
ONE FOOT OF WATER. 

FN23  "BENEFICIAL CONSUMPTIVE USE" MEANS CONSUMPTIVE USE MEASURED BY
DIVERSIONS LESS RETURN FLOWS, FOR A BENEFICIAL (NONWASTEFUL) PURPOSE. 

FN24  ARIZONA DID RATIFY THE COMPACT IN 1944, AFTER IT HAD ALREADY
BECOME EFFECTIVE BY SIX-STATE RATIFICATION AS PERMITTED BY THE BOULDER
CANYON PROJECT ACT. 

FN25  HEARINGS ON H.R. 5773 BEFORE THE HOUSE COMMITTEE ON IRRIGATION
AND RECLAMATION, 70TH CONG., 1ST SESS. 402-405 (1928). 

FN26  ID., AT 30-31.  ARIZONA ALSO OBJECTED TO THE PROVISIONS
CONCERNING ELECTRICAL POWER. 

FN27  H.R. 11449, 67TH CONG., 2D SESS. (1922); H.R. 2903, S. 727,
68TH CONG., 1ST SESS. (1923); H.R. 9826, S. 3331, 69TH CONG., 1ST SESS.
(1926). 

FN28  ANOTHER PURPOSE OF THE ACT WAS TO APPROVE THE COLORADO RIVER
COMPACT, WHICH HAD ALLOCATED THE WATER BETWEEN THE TWO BASINS. 

FN29  THE UPPER BASIN STATES FEARED THAT, IF ARIZONA DID NOT RAFITY
THE COMPACT, THE DIVISION OF WATER BETWEEN THE UPPER AND LOWER BASINS
AGREED ON IN THE COMPACT WOULD BE NULLIFIED.  THE REASONING WAS THAT
ARIZONA'S USES WOULD NOT BE CHARGED AGAINST THE LOWER BASIN'S
APPORTIONMENT AND THAT CALIFORNIA WOULD THEREFORE BE FREE TO EXHAUST
THAT APPORTIONMENT HERSELF.  TOTAL LOWER BASIN USES WOULD THEN BE MORE
THAN PERMITTED IN THE COMPACT, LEAVING LESS WATER FOR THE UPPER BASIN. 

FN30  46 STAT. 3000 (1929). 

FN31  CALIFORNIA LIMITATION ACT, CAL. STAT. 1929, C. 16, AT 38. 

FN32  COLORADO V. KANSAS, 320 U.S. 383, 392 (1943); NEBRASKA V.
WYOMING, 325 U.S. 589, 616 (1945). 

FN33  E.G., KANSAS V. COLORADO, 185 U.S. 125 (1902); NEW JERSEY V.
NEW YORK, 283 U.S. 336 (1931). 

FN34  E.G., WYOMING V. COLORADO, 259 U.S. 419 (1922); NEBRASKA V.
WYOMING, 325 U.S. 589 (1945). 

FN35  H.R. DOC. NO. 717, 80TH CONG., 2D SESS. 22 (1948). 

FN36  "'DOMESTIC' WHENEVER EMPLOYED IN THIS ACT SHALL INCLUDE WATER
USES DEFINED AS 'DOMESTIC' IN SAID COLORADO RIVER COMPACT." 

FN37  THE DAM AND RESERVOIR SHALL BE USED, AMONG OTHER THINGS, FOR
"SATISFACTION OF PRESENT PERFECTED RIGHTS IN PURSUANCE OF ARTICLE VIII
OF SAID COLORADO RIVER COMPACT." 

FN38  SECS. 1, 8(A), 13(B) AND (C). 

FN39  ALSO, CALIFORNIA WOULD REDUCE NEVADA'S SHARE OF THE MAINSTREAM
WATERS FROM 300,000 ACRE-FEET TO 120,500 ACRE FEET. 

FN40  NOT ONLY DOES THE GILA ENTER THE COLORADO ALMOST AT THE MEXICAN
BORDER, BUT ALSO IN DRY SEASONS IT VIRTUALLY EVAPORATES BEFORE REACHING
THE COLORADO. 

FN41  SEE 69 CONG. REC. 9454 (1928). 

FN42  SEE 70 CONG. REC. 172 (1928). 

FN43  HEARINGS ON H.R. 5773, SUPRA NOTE 25, AT 30-31. 

FN44  ID., AT 402. 

FN45  H.R. 5773, 70TH CONG., 1ST SESS.; 69 CONG. REC. 9989-9990
(1928). 

FN46  S. REP. NO. 592, 70TH CONG., 1ST SESS. 2 (1928). 

FN47  70 CONG. REC. 324 (1928). 

FN48  ID., AT 162. 

FN49  ID., AT 384. 

FN50  ID., AT 385 

FN51  45 STAT. 1057 (1928).  ARIZONA'S SENATORS ASHURST AND HAYDEN
VOTED AGAINST THE BILL, WHICH DID NOT EXEMPT THE GILA FROM THE MEXICAN
BURDEN.  70 CONG. REC. 603 (1928). 

FN52  70 CONG. REC. 459 (1928).  THAT THIS CHANGE WAS NOT INTENDED TO
CAUSE THE STATES TO GIVE UP THEIR TRIBUTARIES MAY REASONABLY BE
INFERRED FROM THE FACT THAT THE AMENDMENT WAS AGREED TO BY SENATOR
HAYDEN, WHO WAS A CONSTANT OPPONENT OF INCLUDING THE TRIBUTARIES. 

FN53  ID., AT 77. 

FN54  IBID.  LATER, SENATOR HAYDEN SAID THAT HIS AMENDMENT
INCORPORATED THE GOVERNOR'S PROPOSAL.  ID., AT 172-173. 

FN55 ID., AT 386. 

FN56  ID., AT 164 (KING), 165 (JOHNSON, BRATTON), 382 (HAYDEN,
PHIPPS), 385 (BRATTON), 386 (PITTMAN).  SENATOR HAYDEN'S STATEMENT IS
REPRESENTATIVE:  "I WANT TO STATE TO THE SENATE THAT WHAT I AM TRYING
TO ACCOMPLISH IS TO GET A VOTE ON THE ONE PARTICULAR QUESTION OF
WHETHER THE QUANTITY OF WATER WHICH THE STATE OF CALIFORNIA MAY DIVERT
FROM THE COLORADO RIVER SHOULD BE 4,200,000 ACRE-FEET OR 4,600,000 ACRE
FEET."  ID., AT 382. 

FN57  E.G., REPORT, COLORADO RIVER COMMISSION OF ARIZONA (1927),
REPRINTED IN HEARINGS ON H.R. 5773, SUPRA NOTE 25, AT 25-31; 69 CONG.
REC. 9454 (1928)(ARIZONA'S PROPOSAL AT DENVER). 

FN58  70 CONG. REC. 467-468 (1928).  SEE ALSO ID., AT 463-464, 465. 

FN59  ID., AT 237. 

FN60  ID., AT 466-467. 

FN61  ID., AT 469.  SEE ALSO ID., AT 232. 

FN62  SEE ID., AT 463 (SHORTRIDGE); ID., AT 465 (KING). 

FN63  HEARINGS ON H.R. 5773, SUPRA NOTE 25, AT 50. 

FN64  69 CONG. REC. 9990 (1928). 

FN65  70 CONG. REC. 67 (1928). 

FN66  ID., AT 603. 

FN67  ID., AT 837-838. 

FN68  45 STAT. 1057. 

FN69  SEE S. REP. NO. 592, 70TH CONG., 1ST SESS. 2 (1928). 

FN70  70 CONG. REC. 162 (1928). 

FN71  ID., AT 232. 

FN72  ID., AT 277, 385. 

FN73  ID., AT 333. 

FN74  ID., AT 387. 

FN75  ID., AT 467.  SEE ALSO ID., AT 465. 

FN76  FOR EXAMPLE, SENATOR PITTMAN'S ACTIVE ROLE IN RESOLVING THE
WHOLE COLORADO RIVER PROBLEM WAS ACKNOWLEDGED BY SENATOR HAYDEN ON THE
SENATE FLOOR: 

"WHEN CONGRESS ASSEMBLED IN DECEMBER, 1927, NO AGREEMENT HAD BEEN
MADE.  THE SENIOR SENATOR FROM NEVADA (MR. PITTMAN), IN CONTINUATION OF
THE EARNEST EFFORTS THAT HE HAS MADE ALL THESE YEARS TO BRING ABOUT A
SETTLEMENT OF THE CONTROVERSY BETWEEN THE STATES WITH RESPECT TO THE
COLORADO RIVER, INVITED A NUMBER OF US TO CONFERENCES IN HIS OFFICE AND
THERE WE TALKED OVER THE SITUATION."  ID., AT 172. 

FN77 ID., AT 468-469. 

FN78  ID., AT 471.  THE SENATOR ADDED, "WE HAVE ALREADY DECIDED AS TO
THE DIVISION OF THE WATER, AND WE SAY THAT IF THE STATES WISH THEY CAN
ENTER INTO A SUBSIDIARY AGREEMENT CONFIRMING THAT."  IBID. 

FN79  IN THE DEBATES LEADING TO THE PASSAGE OF THE BILL, SENATOR
WALSH OBSERVED THAT "TO CONTRACT MEANS A LIBERTY OF CONTRACT" AND ASKED
IF THIS DID NOT MEAN THAT THE SECRETARY COULD "GIVE THE WATER TO THEM
(APPROPRIATORS) OR WITHHOLD IT FROM THEM AS HE SEES FIT," TO WHICH
SENATOR JOHNSON ANSWERED "CERTAINLY."  70 CONG. REC. 168 (1928). 

FN80  SEE HEARINGS ON H.R. 6251 AND 9826 BEFORE THE COMMITTEE ON
IRRIGATION AND RECLAMATION, 69TH CONG., 1ST SESS. 12 (1926). 

FN81  SEE ID., AT 97, 115. 

FN82  BEAN V. MORRIS, 221 U.S. 483 (1911).  THIS CASE WAS RELIED ON
BY MR. JUSTICE VAN DEVANTER IN WYOMING V. COLORADO, 259 U.S. 419, 466
(1922). 

FN83  70 CONG. REC. 168 (1928).  OTHER STATEMENTS BY SENATOR JOHNSON
ARE LESS DAMAGING TO CALIFORNIA'S CLAIMS.  FOR EXAMPLE, THE SENATOR AT
ANOTHER POINT IN THE COLLOQUY WITH SENATOR WALSH SAID THAT HE DOUBTED
IF THE SECRETARY EITHER WOULD OR COULD DISREGARD LOS ANGELES AND
CONTRACT WITH SOMEONE HAVING NO APPROPRIATION.  IBID.  IT IS LIKELY,
HOWEVER, THAT SENATOR JOHNSON WAS TALKING ABOUT PRESENT PERFECTED
RIGHTS, AS A FEW MINUTES BEFORE HE ARGUED THAT LOS ANGELES HAD TAKEN
SUFFICIENT STEPS IN PERFECTING ITS CLAIMS TO MAKE THEM PROTECTED.  SEE
ID., AT 167.  PRESENT PERFECTED RIGHTS, AS WE HAVE OBSERVED IN THE
TEXT, ARE RECOGNIZED BY THE ACT.  SEC. 6. 

FN84  70 CONG. REC. 169 (1928).  AT ONE POINT SENATOR HAYDEN SEEMS TO
SAY THAT THE SECRETARY'S CONTRACTS ARE TO BE GOVERNED BY STATE LAW:
"THE ONLY THING REQUIRED IN THIS BILL IS CONTAINED IN THE AMENDMENT
THAT I HAVE OFFERED, THAT THERE SHALL BE APPORTIONED TO EACH STATE ITS
SHARE OF THE WATER.  THEN, WHO SHALL OBTAIN THAT WATER IN RELATIVE
ORDER OR PRIORITY MAY BE DETERMINED BY THE STATE COURTS."  IBID.  BUT,
IN VIEW OF THE SENATOR'S OTHER STATEMENTS IN THE SAME DEBATE, THIS
REMARK OF A MAN SO KNOWLEDGEABLE IN WESTERN WATER LAW MAKES SENSE ONLY
IF ONE UNDERSTANDS THAT THE "ORDER OR PRIORITY" BEING TALKED ABOUT WAS
THE ORDER OF PRESENT PERFECTED RIGHTS - RIGHTS WHICH SENATOR HAYDEN
RECOGNIZED, SEE ID., AT 167, AND WHICH THE ACT PRESERVES IN SEC. 6. 

FN85  69 CONG. REC. 9623, 9648, 9649 (1928).  WE RECOGNIZE, OF
COURSE, THAT STATEMENTS OF OPPONENTS OF A BILL MAY NOT BE
AUTHORITATIVE, SEE SCHWEGMANN BROS. V. CALVERT DISTILLERS CORP., 341
U.S. 384, 394-395 (1951), BUT THEY ARE NEVERTHELESS RELEVANT AND
USEFUL, ESPECIALLY WHERE, AS HERE, THE PROPONENTS OF THE BILL MADE NO
RESPONSE TO THE OPPONENTS' CRITICISMS.    FN86  SEE, E.G., ICKES V.
FOX, 300 U.S. 82 (1937); CF. BEST V. HUMBOLDT PLACER MINING CO., 371
U.S. 334 (1963); BOESCHE V. UDALL, ANTE, P. 472. 

FN87  "NOTHING IN  ...  THIS ACT SHALL BE CONSTRUED AS AFFECTING OR
INTENDED TO AFFECT OR TO IN ANY WAY INTERFERE WITH THE LAWS OF ANY
STATE OR TERRITORY RELATING TO THE CONTROL, APPROPRIATION, USE, OR
DISTRIBUTION OF WATER USED IN IRRIGATION, OR ANY VESTED RIGHT ACQUIRED
THEREUNDER, AND THE SECRETARY OF THE INTERIOR, IN CARRYING OUT THE
PROVISIONS OF SUCH SECTIONS, SHALL PROCEED IN CONFORMITY WITH SUCH
LAWS, AND NOTHING  ...  (HEREIN) SHALL IN ANY WAY AFFECT ANY RIGHT OF
ANY STATE OR OF THE FEDERAL GOVERNMENT OR OF ANY LANDOWNER,
APPROPRIATOR, OR USER OF WATER IN, TO, OR FROM ANY INTERSTATE STREAM OR
THE WATERS THEREOF."  43 U.S.C. SEC. 383. 

FN88  ARIZONA V. CALIFORNIA, 283 U.S. 423 (1931). 

FN89  UNITED STATES V. GERLACH LIVE STOCK CO., 339 U.S. 725, 738
(1950). 

FN90  FIRST IOWA HYDRO-ELEC.  COOP.  V. FEDERAL POWER COMM'N, 328
U.S. 152, 171 (1946).  SEE UNITED STATES V. CHANDLER-DUNBAR WATER POWER
CO., 229 U.S. 53, 62-72 (1913); UNITED STATES V. WILLOW RIVER POWER
CO., 324 U.S. 499 (1945). 

FN91  ARIZONA V. CALIFORNIA, 283 U.S. 423 (1931); NEBRASKA V.
WYOMING, 325 U.S. 589, 615 (1945); FIRST IOWA HYDRO-ELEC.  COOP.  V.
FEDERAL POWER COMM'N, 328 U.S. 152 (1946). 

FN92  NEBRASKA V. WYOMING, 325 U.S. 589 (1945), HOLDS NOTHING TO THE
CONTRARY.  THERE THE COURT FOUND IT UNNECESSARY TO DECIDE WHAT RIGHTS
THE UNITED STATES HAD UNDER FEDERAL LAW TO THE UNAPPROPRIATED WATER OF
THE NORTH PLATTE RIVER, SINCE THE WATER RIGHTS ON WHICH THE PROJECTS IN
THAT CASE RESTED HAD IN FACT BEEN OBTAINED IN COMPLIANCE WITH STATE
LAW. 

FN93  SEE FIRST IOWA HYDRO-ELEC.  COOP.  V. FEDERAL POWER COMM'N, 328
U.S. 152, 175-176 (1946), WHERE THIS COURT LIMITED THE EFFECT OF SEC.
27 OF THE FEDERAL POWER ACT, WHICH EXPRESSLY "SAVED" CERTAIN STATE
LAWS, TO VESTED PROPERTY RIGHTS. 

FN94  BY AN ACT OF SEPTEMBER 2, 1958, 72 STAT. 1726, THE SECRETARY
MUST SUPPLY WATER TO BOULDER CITY, NEVADA.  IT FOLLOWS FROM OUR
CONCLUSIONS AS TO THE INAPPLICABILITY OF STATE LAW THAT, CONTRARY TO
THE MASTER'S CONCLUSION, BOULDER CITY'S PRIORITIES ARE NOT TO BE
DETERMINED BY NEVADA LAW. 

FN95  THE LOCATION OF THE HOOVER DAM IS A RESULT OF ENGINEERING
DECISIONS.  AS SENATOR PITTMAN POINTED OUT, "THERE IS NO PLACE TO
IMPOUND THE FLOOD WATERS EXCEPT AT THE LOWER END OF THE CANYON."  68
CONG. REC. 4413 (1927). 

FN96  PRORATION OF SHORTAGE IS THE METHOD AGREED UPON BY THE UNITED
STATES AND MEXICO TO ADJUST MEXICO'S SHARE OF COLORADO RIVER WATER
SHOULD THERE BY INSUFFICIENT WATER TO SUPPLY EACH COUNTRY'S
APPORTIONMENT. 

FN97  THE RESERVATIONS WERE CHEMEHUEVI, COCOPAH, YUMA, COLORADO RIVER
AND FORT MOHAVE. 

FN98  ACT OF MARCH 3, 1865, 13 STAT. 541, 559. 

FN99  SEE EXECUTIVE ORDERS OF NOVEMBER 22, 1873, NOVEMBER 16, 1874,
AND MAY 15, 1876.  SEE ALSO EXECUTIVE ORDER OF NOVEMBER 22, 1915. 
THESE ORDERS MAY BE FOUND IN 1 U.S. DEPT. OF INTERIOR, EXECUTIVE ORDERS
RELATING TO INDIAN RESERVATIONS 6-7 (1912); 2 ID., AT 5-6 (1922). 

FN100  EXECUTIVE ORDERS OF JANUARY 9, 1884 (YUMA), SEPTEMBER 19, 1890
(FORT MOHAVE), FEBRUARY 2, 1911 (FORT MOHAVE), SEPTEMBER 27, 1917
(COCOPAH).  FOR THESE ORDERS, SEE 1 ID., AT 12-13, 63-64 (1912); 2 ID.,
AT 5 (1922).  THE CHEMEHUEVI RESERVATION WAS ESTABLISHED BY THE
SECRETARY OF THE INTERIOR ON FEBRUARY 2, 1907, PENDING CONGRESSIONAL
APPROVAL. 

FN101  SEE, E.G., UNITED STATES V. CALIFORNIA, 332 U.S. 19, 29-30
(1947); UNITED STATES V. HOLT STATE BANK, 270 U.S. 49, 54-55 (1926). 

FN102  SEE UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459, 469-475
(1915); WINTERS V. UNITED STATES, 207 U.S. 564 (1908). 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR OPINION OF MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE DOUGLAS AND
MR. JUSTICE STEWART, SEE POST, P. 603. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 627. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE STEWART
JOIN, DISSENTING IN PART. 

I DISSENT FROM SO MUCH OF THE COURT'S OPINION AS HOLDS THAT THE
SECRETARY ON THE INTERIOR HAS BEEN GIVEN AUTHORITY BY CONGRESS TO
APPORTION, AMONG AND WITHIN THE STATES OF CALIFORNIA, ARIZONA, AND
NEVADA, THE WATERS OF THE MAINSTREAM OF THE COLORADO RIVER BELOW LEE
FERRY.  I ALSO DISSENT FROM THE HOLDING THAT IN TIMES OF SHORTAGE THE
SECRETARY HAS DISCRETION TO SELECT OR DEVISE ANY "REASONABLE METHOD" HE
WISHES FOR DETERMINING WHICH USERS WITHIN THESE STATES ARE TO BEAR THE
BURDEN OF THAT SHORTAGE.  (IN ALL OTHER RESPECTS MR. JUSTICE STEWART
AND I - BUT NOT MR. JUSTICE DOUGLAS - AGREE WITH AND JOIN IN THE
COURT'S OPINION, THOUGH NOT WITHOUT SOME MISGIVINGS REGARDING THE
AMOUNTS OF WATER ALLOCATED TO THE INDIAN RESERVATIONS.) 

IN MY VIEW, IT IS THE EQUITABLE PRINCIPLES ESTABLISHED BY THE COURT
IN INTERSTATE WATER-RIGHTS CASES, AS MODIFIED BY THE COLORADO RIVER
COMPACT AND THE CALIFORNIA LIMITATION, THAT WERE INTENDED BY CONGRESS
TO GOVERN THE APPORTIONMENT OF MAINSTREAM WATERS AMONG THE LOWER BASIN
STATES, WHETHER IN SURPLUS OR IN SHORTAGE.  A FORTIORI, STATE LAW WAS
INTENDED TO CONTROL APPORTIONMENT AMONG USERS WITHIN A SINGLE STATE. 

                                        I.

                                  INTRODUCTION. 

THE COURT'S CONCLUSIONS RESPECTING THE SECRETARY'S APPORTIONMENT
POWERS, PARTICULARLY THOSE IN TIMES OF SHORTAGE, RESULT IN A SINGLE
APPOINTED FEDERAL OFFICIAL BEING VESTED WITH ABSOLUTE CONTROL,
UNRESTRAINED BY ADEQUATE STANDARDS, OVER THE FATE OF A SUBSTANTIAL
SEGMENT OF THE LIFE AND ECONOMY OF THREE STATES.  SUCH RESTRAINT UPON
HIS ACTIONS AS MAY FOLLOW FROM JUDICIAL REVIEW ARE, AS WILL BE SHOWN,
AT BEST ILLUSORY.  TODAY'S RESULT I VENTURE TO SAY, WOULD HAVE
DUMBFOUNDED THOSE RESPONSIBLE FOR THE LEGISLATION THE COURT CONSTRUES,
FOR NOTHING COULD HAVE BEEN FARTHER FROM THEIR MINDS OR MORE
INCONSISTENT WITH THEIR DEEPLY FELT CONVICTIONS. 

THE COURT PROFESSES TO FIND THIS EXTRAORDINARY DELEGATION OF POWER
PRINCIPALLY IN SEC. 5 OF THE PROJECT ACT, THE PROVISION AUTHORIZING THE
SECRETARY TO ENTER INTO CONTRACTS FOR THE STORAGE AND DELIVERY OF
WATER.  BUT SEC. 5, AS IS MORE FULLY SHOWN BELOW, PP.  615-621, INFRA,
HAD NO DESIGN RESEMBLING THAT WHICH THE COURT NOW EXTRACTS FROM IT.
RATHER, IT WAS INTENDED PRINCIPALLY AS A REVENUE MEASURE, AND THE
CLAUSE REQUIRING A CONTRACT AS A CONDITION OF DELIVERY WAS INSERTED AT
THE INSISTENCE NOT OF THE LOWER BUT OF THE UPPER BASIN STATES IN AN
EFFORT TO INSURE THAT NOTHING WOULD DISTURB THAT BASIN'S RIGHTS UNDER
THE COLORADO RIVER COMPACT.  THERE WAS NO THOUGHT THAT SEC. 5 WOULD
GIVE AUTHORITY TO APPORTION WATER AMONG THE LOWER BASIN STATES. 
INDEED, DURING THE HEARINGS ON THE THIRD SWING-JOHNSON BILL WHEN SEC. 5
TOOK ITS PRESENT FORM, ONE OF ITS PRINCIPAL PROPONENTS, DELPH CARPENTER
OF COLORADO, SPECIFICALLY STATED THAT THE PROPOSED CONDITION OF A
CONTRACT WAS INTENDED TO REQUIRE: 

"THAT THE PERSONS WHO RECEIVE THE WATER SHALL RESPECT AND DO SO UNDER
THE COMPACT.  IT HAS NOTHING TO DO WITH THE INTERSTATE RELATIONS
BETWEEN ARIZONA AND CALIFORNIA."  (FN1) 

AND REPRESENTATIVE SWING, COAUTHOR OF THE BILL, MADE VIRTUALLY THE
SAME POINT IN EXPLAINING THE PROVISION BEFORE THE HOUSE RULES
COMMITTEE: 

"THE ACT SAYS (IN SEC. 5) 'THE SECRETARY OF THE INTERIOR IS HEREBY
AUTHORIZED, UNDER SUCH GENERAL REGULATIONS AS HE MAY PRESCRIBE, TO
CONTRACT FOR THE STORAGE OF WATER.'  WHOSE WATER?  IT DOES NOT SAY.  IT
MIGHT BE A COMMUNITY LIKE IMPERIAL VALLEY THAT HAS ALREADY ACQUIRED A
WATER RIGHT  ...  OR IT MAY BE SOMEONE WHO HEREAFTER WILL ACQUIRE A
WATER RIGHT, BUT THAT RIGHT WILL NOT BE ACQUIRED UNDER THIS BILL; NOT
FROM THE UNITED STATES GOVERNMENT.  HE WILL ACQUIRE HIS WATER RIGHT, IF
HE ACQUIRES ONE, FROM THE STATE AND UNDER THE LAWS OF THE STATE, IN
WHICH HE PUTS THE WATER TO A BENEFICIAL USE.  THERE IS NOTHING IN THIS
BILL WHICH PUTS THE GOVERNMENT IN CONFLICT WITH THE WATER LAWS OF
ARIZONA OR UTAH OR ANY OTHER STATE.  AS A MATTER OF FACT, THE
RECLAMATION LAW IS ADOPTED BY SECTION 13 OF THIS BILL (NOW SEC. 14),
AND SECTION 8 OF THE RECLAMATION ACT SAYS THAT WHAT THE GOVERNMENT DOES
MUST NOT BE IN CONFLICT WITH THE WATER LAWS OF THE STATES, SO THERE CAN
BE NO VIOLENCE DONE STATE LAWS ON THIS SCORE."  (FN2) 

THE COURT CONCEDES, AS INDEED IT MUST IN THE FACE OF SUCH UNEQUIVOCAL
EVIDENCE, THAT THIS THIRD SWING-JOHNSON BILL, LIKE ITS PREDECESSORS,
ESTABLISHED "NO METHOD WHATEVER OF APPORTIONING THE WATERS AMONG THE
STATES OF THE LOWER BASIN."  ANTE, P. 560.  THIS CONCESSION, ONE WOULD
THINK, WOULD END THIS ASPECT OF THE CONTROVERSY, SINCE SEC. 5 AS
ULTIMATELY ADOPTED IS VIRTUALLY THE SAME AS THAT PROPOSED IN THE THIRD
BILL.  (FN3)  YET A METHOD OF FEDERAL APPORTIONMENT IS DISCOVERED IN
THE FOURTH SWING-JOHNSON BILL AS FINALLY ENACTED, A METHOD WHICH ENDS
BY DELEGATING TO THE SECRETARY OF THE INTERIOR THE AWESOME POWER OVER
THE "WATER" DESTINY OF THREE STATES.  TO WHAT PROVISION DOES THE COURT
ATTRIBUTE THIS STARTLING METAMORPHOSIS?  THE FUNDAMENTAL CHANGE IN
APPROACH IS APPARENTLY FOUND IN SEC. 4(A), WHICH AS ADOPTED CONTAINS
PROVISION (1) CONDITIONING THE EFFECTIVENESS OF THE ACT ON SEVEN-STATE
RATIFICATION OF THE COLORADO RIVER COMPACT OR ALTERNATIVELY ON
CALIFORNIA'S AGREEMENT TO LIMIT ITS ANNUAL CONSUMPTION OF COLORADO
RIVER WATER, TOGETHER WITH SIX-STATE RATIFICATION OF THE COMPACT; AND
(2) GIVING PERMISSION TO CALIFORNIA, ARIZONA, AND NEVADA TO ENTER A
FURTHER COMPACT APPORTIONING CERTAIN WATERS TO THE LATTER TWO STATES
PURSUANT TO A STATED FORMULA. 

IT IS MANIFEST THAT SEC. 4(A), ON WHICH THE COURT SO HEAVILY RESTS,
NEITHER APPORTIONS THE WATERS OF THE RIVER NOR VESTS POWER IN ANY
OFFICIAL TO MAKE SUCH AN APPORTIONMENT.  THE FIRST PARAGRAPH DOES NOT
GRANT ANY WATER TO ANYONE; IT MERELY CONDITIONS THE ACT'S EFFECTIVENESS
ON SEVEN-STATE RATIFICATION OF THE COMPACT OR ON SIX-STATE
RATIFICATION, PLUS CALIFORNIA'S AGREEMENT TO A LIMITATION, I.E., A
CEILING, ON HER APPROPRIATIONS.  THE SOURCE OF AUTHORITY TO MAKE SUCH
APPROPRIATIONS MUST BE FOUND ELSEWHERE.  AND THE SECOND PARAGRAPH OF
SEC. 4(A), SUGGESTING A PARTICULAR INTERSTATE AGREEMENT, SIMILARLY
MAKES NO APPORTIONMENT OF WATER AMONG THE STATES AND DELEGATES NO POWER
TO ANY OFFICIAL TO MAKE SUCH AN APPORTIONMENT.  INDEED, IT WAS ACCEPTED
BY THE SENATOR FROM CALIFORNIA (MR. JOHNSON) ONLY AFTER THE FOLLOWING
COLLOQUY WITH ITS PROPONENT, SENATOR PITTMAN OF NEVADA: 

"MR. JOHNSON.   ...  WHAT I WANT TO MAKE CLEAR IS THAT THIS AMENDMENT
SHALL NOT BE CONSTRUED HEREAFTER BY ANY OF THE PARTIES TO IT OR ANY OF
THE STATES AS BEING THE EXPRESSION OF THE WILL OR THE DEMAND OR THE
REQUEST OF THE CONGRESS OF THE UNITED STATES. 

"MR. PITTMAN.  EXACTLY, NOT. 

"MR. JOHNSON.  VERY WELL, THEN. 

"MR. PITTMAN.  IT IS NOT THE REQUEST OF CONGRESS. 

"MR. JOHNSON.  I ACCEPT THE AMENDMENT, THEN."  70 CONG. REC. 472. 

SENATOR JOHNSON WOULD SURELY HAVE BEEN SURPRISED TO LEARN THAT THE
FORMULA WHICH WAS NOT EVEN "THE REQUEST OF CONGRESS" WAS IN TRUTH ONE
WHICH THE SECRETARY WAS AUTHORIZED TO FORCE DOWN THE THROATS OF THE
STATES IF THEY DID NOT VOLUNTARILY AGREE TO IT. 

EVEN THIS BRIEF SUMMARY, I THINK, CASTS THE GRAVEST DOUBTS UPON THE
COURT'S CONSTRUCTION OF THE PROJECT ACT AS ABOLISHING STATE LAW AND
ACCEPTED PRINCIPLES OF EQUITABLE APPORTIONMENT IN EFFECTING ALLOCATIONS
OF WATER AMONG THE STATE.  A MORE DETAILED ANALYSIS WILL, I BELIEVE,
DEMONSTRATE THE INCORRECTNESS OF THE COURT'S CONCLUSIONS ON THIS SCORE
AND WILL REVEAL THE CONSTITUTIONAL DIFFICULTIES INHERENT IN THE
UNCONTROLLED DELEGATION OF POWER RESULTING FROM THOSE CONCLUSIONS. 

                 II.

                     THE BACKGROUND OF THE BOULDER CANYON

PROJECT ACT. 

JUDICIAL APPORTIONMENT OF INTERSTATE WATERS WAS ESTABLISHED LONG
BEFORE THE PROJECT ACT AS AN EFFECTIVE MEANS OF RESOLVING INTERSTATE
WATER DISPUTES.  KANSAS V. COLORADO, 206 U.S. 46.  ITS ACCEPTABILITY
HAD NEVER BEEN QUESTIONED.  PRIORITY OF APPROPRIATION, THE BASIC
DETERMINANT OF JUDICIAL APPORTIONMENT AS ENUNCIATED IN WYOMING V.
COLORADO, 259 U.S. 419, WAS THE LAW IN SIX OF THE COLORADO BASIN
STATES, (FN4) AND SENIOR APPROPRIATIONS WERE RESPECTED IN THE SEVENTH. 
(FN5)  THE LAW OF APPROPRIATION, WHICH RESTS ON THE BASIC PRINCIPLE
THAT A WATER RIGHT DEPENDS ON BENEFICIAL USE AND WHICH GIVES PRIORITY
OF RIGHT TO THE APPROPRIATOR FIRST IN TIME, HAD BEEN REPEATEDLY
DECLARED TO BE INDISPENSABLE TO THE DEVELOPMENT OF THE ARID LANDS OF
THE WEST.  (FN6) 

THIS BACKDROP OF FIRM DEDICATION TO THE PRINCIPLES OF APPROPRIATION
AND OF JUDICIAL APPORTIONMENT IS CRITICAL TO AN UNDERSTANDING OF
CONGRESSIONAL PURPOSE WITH RESPECT TO THE PROJECT ACT.  IT IS ALSO
CRITICAL TO RECOGNIZE THAT CONGRESSIONAL COMPROMISE WITH THESE DEEPLY
RESPECTED PRINCIPLES WAS ONLY PARTIAL; THE PROBLEMS FACING CONGRESS AS
A RESULT OF WYOMING V. COLORADO WERE NARROW.  NO SENATOR OR
REPRESENTATIVE EVER SUGGESTED THAT JUDICIAL APPORTIONMENT WAS GENERALLY
INAPPROPRIATE; NO SENATOR OR REPRESENTATIVE EVER INVEIGHED AGAINST THE
LAW OF APPROPRIATION AS SUCH.  THE FIRST PROBLEM WAS SIMPLY THIS:
INTERSTATE APPLICATION OF THE DOCTRINE OF PRIORITY, UNLIMITED BY
EQUITABLE CONSIDERATIONS, THREATENED TO DEPRIVE THE FOUR UPPER BASIN
STATES OF THEIR FAIR SHARE OF THE COLORADO RIVER BECAUSE THEY WERE NOT
SO QUICK AS CALIFORNIA IN DEVELOPMENT.  THE PURPOSE OF THE COMPACT WAS
SIMPLY TO LIMIT TRADITIONAL DOCTRINES TO THE EXTENT NECESSARY TO AVOID
THIS EXTREME AND HARSH RESULT, AND TO ELIMINATE LONG AND COSTLY
LITIGATION. 

IT WAS PERFECTLY PLAIN THAT THE COLORADO RIVER COMPACT MERELY
GUARANTEED TO THE UPPER STATES A SPECIFIED QUANTITY OF WATER IMMUNE
FROM PRIORITIES BELOW, SUBJECT TO STATED DELIVERY REQUIREMENTS; IT DID
NOTHING WHATEVER TO INTERFERE WITH THE LAW OF PRIORITIES OR THE
PRINCIPLES OF EQUITABLE APPORTIONMENT AMONG THE STATES OF THE LOWER
BASIN.  (FN7)  IT WAS PRECISELY BECAUSE IT DID NOT THAT ARIZONA REFUSED
TO APPROVE EITHER THE PROJECT ACT OR THE COMPACT UNTIL SOMETHING WAS
DONE TO SAFEGUARD HER SHARE OF LOWER BASIN WATER.  (FN8)  SIMILARLY,
THE UPPER STATES FEARED THAT IN THE ABSENCE OF RATIFICATION BY ARIZONA,
CALIFORNIA WOULD BE FREE TO APPROPRIATE ALL THE LOWER BASIN'S SHARE
UNDER THE COMPACT, AND ARIZONA, NOT LIMITED BY THAT DOCUMENT, WOULD BE
FREE TO APPROPRIATE, AS AGAINST THE UPPER STATES, WATER THE COMPACT
SOUGHT TO APPORTION TO THE UPPER BASIN.  (FN9)    THE REMAINING
PROBLEM, THEREFORE, WAS THAT CALIFORNIA'S ACQUISITION OF PRIORITIES AS
AGAINST ARIZONA AND THE UPPER STATES HAD TO BE FURTHER LIMITED.  A
CEILING HAD TO BE PUT ON HER INTERSTATE APPROPRIATIVE PRIORITIES. 
SOLUTION OF THIS NARROW PROBLEM LIKEWISE DID NOT REQUIRE COMPLETE
ABROGATION OF THE PRINCIPLES OF PRIORITY AND INTERSTATE JUDICIAL
APPORTIONMENT. 

STILL ANOTHER, AND PROFOUNDLY SIGNIFICANT, FACTOR IN UNDERSTANDING
THE EFFECT OF THE PROJECT ACT ON THE LAW OF APPROPRIATION AND JUDICIAL
APPORTIONMENT IS THE PERVASIVE HOSTILITY THAT MANY WESTERNERS HAD TO
ANY FORM OF FEDERAL CONTROL OF WATER RIGHTS.  COLORADO'S DELPH
CARPENTER, WHO WAS AS MUCH RESPONSIBLE AS ANY MAN FOR BOTH THE COMPACT
AND THE CONTRACT REQUIREMENT OF SEC. 5 OF THE PROJECT ACT, TESTIFIED IN
1925 TO WHAT HE TERMED AN INSIDIOUS AND CALCULATED POLICY OF THE
NATIONAL GOVERNMENT, FOSTERED PARTICULARLY BY THE DEPARTMENTS OF
INTERIOR AND JUSTICE, TO ENCORACH UPON STATE PREROGATIVES AND SUPERSEDE
STATE AUTHORITY WITH RESPECT TO THE DISTRIBUTION OF WATER.  HE MADE IT
CLEAR, AS DID WYOMING'S SENATOR KENDRICK, THAT HE DEEMED THIS POLICY
OPPRESSIVE, DESTRUCTIVE, AND DEPLORABLE.  (FN10)  UTAH'S SENATOR KING
MADE THE SAME OBJECTION ON THE FLOOR OF THE SENATE.  69 CONG. REC.
10262.  WHEN IT WAS SUGGESTED THAT CONGRESS MIGHT LEGISLATE TO MEET THE
PROBLEM OF CALIFORNIA'S THREATENED PREEMPTION OF THE RIVER, A STORM OF
DOUBT AROSE AS TO ITS CONSTITUTIONAL POWER TO DO SO.  UPPER BASIN AND
ARIZONA SPOKESMEN - THOSE WHO WERE TO BE BENEFITED BY LIMITING
APPROPRIATIONS - REPEATEDLY INSISTED THAT THE ONLY CONSTITUTIONAL WAYS
OF APPORTIONING THE RIVER WERE BY SUIT IN THIS COURT OR BY INTERSTATE
COMPACT.  (FN11)  AND SENATOR BRATTON OF NEW MEXICO, HARDLY AN OPPONENT
OF THE PROJECT ACT, OBJECTED THAT BY MERELY SUGGESTING IN SEC. 4(A) THE
TERMS OF A COMPACT WHICH THE STATES WERE FREE TO MODIFY OR TO REJECT,
CONGRESS WAS INFRINGING UPON STATE SOVEREIGNTY.  70 CONG. REC. 470
471. 

CONGRESS' ENTIRE APPROACH TO THE PROBLEMS OF PRIOR APPROPRIATION WAS
GOVERNED BY THIS DEEP-SEATED HOSTILITY TO FEDERAL DICTATION OF WATER
RIGHTS.  WHEN PLANS FOR DEVELOPMENT OF THE LOWER BASIN THREATENED THE
RIGHTS OF THE UPPER STATES, THEY DID NOT SEEK THE SIMPLE (AND IN MY
VIEW CONSTITUTIONALLY UNOBJECTIONABLE) SOLUTION OF A LEGISLATIVE
APPORTIONMENT.  THEY EMPLOYED INSTEAD THE CUMBERSOME METHOD OF
INTERSTATE COMPACT, WHICH REQUIRED AUTHORIZATION BY CONGRESS AND BY
SEVEN STATE LEGISLATURES PRIOR TO NEGOTIATION AND RATIFICATION BY THE
SAME EIGHT BODIES THEREAFTER.  WHEN IT BEGAN TO APPEAR THAT ARIZONA
WOULD NOT RATIFY THE COMPACT, CONGRESS STILL DID NOT LEGISLATE A
GENERAL APPORTIONMENT.  IT BUILT THE STATUTE AROUND THE PROVISIONS OF
THE COMPACT, INSISTING ON RATIFICATION BY AS MANY STATES AS POSSIBLE,
EVEN AT THE COST OF FURTHER DELAYING THE ALREADY OVERDUE PROJECT ACT. 
IT SIMPLY CONDITIONED THE USE OF THE GOVERNMENT PROPERTY AND OF WATER
STORED BEHIND THE DAM ON COMPLIANCE WITH THE COMPACT.  ATTEMPTS TO
DIVIDE THE LOWER BASIN WATER BY INTERSTATE AGREEMENT CONTINUED THROUGH
THE DENVER CONFERENCE CALLED BY THE UPPER BASIN GOVERNORS IN THE SUMMER
OF 1927 - NEARLY FIVE YEARS AFTER NEGOTIATIONS OF THE COMPACT.  YET IT
WAS NOT UNTIL 1927 THAT AN AMENDMENT WAS FIRST OFFERED TO PROTECT
ARIZONA BY A STATUTORY LIMITATION ON CALIFORNIA'S CONSUMPTION, AND IT
WAS NOT UNTIL 1928 THAT THE PROPOSAL WAS ADOPTED INTO THE BILL. 
(FN12) 

FINALLY, WHEN CONGRESS ULTIMATELY RESIGNED ITSELF TO THE NECESSITY OF
LEGISLATING IN SOME WAY WITH RESPECT TO THE DIVISION OF LOWER BASIN
WATERS, IT USED NARROW WORDS SUITABLE TO ITS NARROW PURPOSE AND TO ITS
REGARD BOTH FOR THE SYSTEM OF JUDICIAL APPORTIONMENT AND APPROPRIATION
AND FOR THE RIGHTS OF THE STATES.  EVEN THEN CONGRESS DID NOT ATTEMPT
TO LEGISLATE AN APPORTIONMENT OF LOWER BASIN WATER; IT SIMPLY
PRESCRIBED A CEILING FOR CALIFORNIA.  IN THE WORDS OF SENATOR JOHNSON,
"WE WRITE, THEN, THAT CALIFORNIA SHALL USE PERPETUALLY ONLY A SPECIFIC
AMOUNT OF WATER, NAMING THE MAXIMUM AMOUNT WHICH MAY BE USED."  69
CONG. REC. 7250.  EVEN THIS, CONGRESS WAS UNWILLING TO DO DIRECTLY.  AS
REPORTED FROM COMMITTEE, THE BILL CONTAINED A PROVISION DIRECTING THE
SECRETARY OF THE INTERIOR TO LIMIT CALIFORNIA'S CONSUMPTION IN THE
EXERCISE OF HIS POWER OF CONTRACT.  (FN13)  BUT THIS WAS REPLACED BY
THE PRESENT PROVISION, WHICH REACHED THE SAME RESULT NOT VIA THE
SECRETARY'S CONTRACT AUTHORITY BUT BY THE AWKWARD DEVICE OF REQUIRING
CALIFORNIA'S LEGISLATURE TO CONSENT TO THE LIMITATION AS A CONDITION
PRECEDENT TO THE EFFECTIVENESS OF THE PROJECT ACT.  AND THIS WAS NOT
ALL; TO END THE TALE CONGRESS ADDED TO SEC. 4(A) SPECIFIC AUTHORIZATION
TO ARIZONA, CALIFORNIA, AND NEVADA TO ENTER INTO AN AGREEMENT TO
COMPLETE THE DIVISION OF THE LOWER BASIN WATER - THE SAME CUMBERSOME
SUBSTITUTE FOR DIRECT CONGRESSIONAL APPORTIONMENT THAT HAD BEEN
ABORTIVELY MOOTED FOR SIX YEARS. 

THIS HISTORY BEARS RECAPITULATION.  FIRST, THE LAW OF APPROPRIATION,
BASIC TO WESTERN WATER LAW, WAS GREATLY RESPECTED, AND THE SOLUTION OF
INTERSTATE WATER DISPUTES BY JUDICIAL APPORTIONMENT IN THIS COURT WAS
WELL ESTABLISHED AND ACCEPTED.  SECOND, THE PROBLEMS CREATED BY THESE
DOCTRINES AS APPLIED IN WYOMING V. COLORADO WERE NARROW ONES, NOT
REQUIRING FOR THEIR SOLUTION COMPLETE ABROGATION OF WELL-TRIED
PRINCIPLES; EXISTING LAW WAS QUITE ADEQUATE TO DEAL WITH ALL QUESTIONS
SAVE THOSE CONGRESS EXPRESSLY SOLVED BY IMPOSING A CEILING ON
CALIFORNIA.  THIRD, CONGRESS THROUGHOUT THE DISPUTE EXHIBITED GREAT
RELUCTANCE TO INTERFERE WITH THE DIVISION OF WATER BY LEGISLATION,
BECAUSE OF A DEEP AND FUNDAMENTAL MISTRUST OF FEDERAL INTERVENTION AND
A PROFOUND REGARD FOR STATE SOVEREIGNTY, SHARED BY MANY INFLUENTIAL
MEMBERS.  FINALLY, WHEN CONGRESS WAS FORCED TO LEGISLATE WITH RESPECT
TO THIS PROBLEM OR FACT DEFEAT OF THE ENTIRE PROJECT ACT, IT CHOSE
NARROW TERMS APPROPRIATE TO THE NARROW PROBLEM BEFORE IT, AND EVEN THEN
ACTED ONLY INDIRECTLY TO REQUIRE CALIFORNIA'S CONSENT TO LIMITING HER
CONSUMPTION. 

IT IS INCONCEIVABLE THAT SUCH A CONGRESS INTENDED THAT THE SWEEPING
FEDERAL POWER WHICH IT DECLINED TO EXERCISE - A POWER EVEN THE MOST
AVID PARTISANS OF NATIONAL AUTHORITY MIGHT HESITATE TO GRANT TO A
SINGLE ADMINISTRATOR - BE EXERCISED AT THE UNBRIDLED DISCRETION OF AN
ADMINISTRATIVE OFFICER, ESPECIALLY IN THE LIGHT OF COMPLAINTS
REGISTERED ABOUT "BUREAUCRATIC" AND "OPPRESSIVE" INTERFERENCE OF THE
DEPARTMENT WHICH THAT VERY OFFICER HEADED.  (FN14)  IT IS UTTERLY
INCREDIBLE THAT A CONGRESS UNWILLING BECAUSE OF CONCERN FOR STATES'
RIGHTS EVEN TO LIMIT CALIFORNIA'S MAXIMUM CONSUMPTION TO 4,400,000 ACRE
FEET WITHOUT THE CONSENT OF HER LEGISLATURE INTENDED TO GIVE THE
SECRETARY OF THE INTERIOR AUTHORITY WITHOUT CALIFORNIA'S CONSENT TO
REDUCE HER SHARE EVEN BELOW THAT QUANTITY IN A SHORTAGE. 

        III. 

                 THE AUTHORITY OF THE SECRETARY UNDER SECTION 5

                              OF THE PROJECT ACT. 

THE COURT HOLDS THAT SEC. 5 OF THE PROJECT ACT, WHICH EMPOWERS THE
SECRETARY TO CONTRACT FOR WATER DELIVERY AND FORBIDS DELIVERY OF STORED
WATER WITHOUT A CONTRACT, DISPLACES THE LAW OF APPORTIONMENT AMONG THE
LOWER BASIN STATES, GIVING THE SECRETARY POWER TO DIVIDE THE WATER BY
CONTRACT AND TO DISTRIBUTE THE BURDEN OF SHORTAGES, WITHOUT RESPECTING
APPROPRIATIONS. 

BUT IT DOES NOT FOLLOW THAT BECAUSE NO USER IS ENTITLED TO STORED
WATER WITHOUT A CONTRACT THE SECRETARY MAY AWARD OR WITHHOLD CONTRACTS
INDEPENDENTLY OF PRIORITIES.  IN FACT, SEC. 5 REFLECTS NO SUCH
INTENTION.  THE SECRETARY'S POWER TO CONTRACT UPON APPROPRIATE
FINANCIAL CHARGES FOR WATER DELIVERY, NOT INCLUDED IN THE EARLY BILLS,
WAS ADDED DURING THE 1926 HEARINGS IN RESPONSE TO A REQUEST FROM
SECRETARY OF THE INTERIOR WORK THAT USERS OF WATER, AS WELL AS OF
POWER, BE MADE TO BEAR THE COST OF THE PROJECT.  (FN15)  AT THE SAME
TIME SEC. 4(B) FOR THE FIRST TIME PROVIDED THAT NO WORK UNDER THE ACT
SHOULD BEGIN UNTIL THESE REVENUES WERE ASSURED BY THE SECRETARY'S
CONTRACTS.  THERE WAS YET NO PROVISION PROHIBITING DELIVERIES WITHOUT
CONTRACTS.  (FN16) 

THUS ORIGINALLY PURELY A FINANCIAL TOOL, THE CONTRACT POWER WAS LATER
MADE TO SERVE THE ADDITIONAL PURPOSE OF ENFORCING THE COMPACT'S
PROVISIONS AGAINST ARIZONA IN THE ABSENCE OF HER RATIFICATION.  AT THE
URGING OF THE UPPER STATES SEC. 8 HAD BEEN AMENDED TO SUBJECT THE
UNITED STATES IN OPERATING THE DAM TO THE COMPACT, TO CONDITION THE
ENJOYMENT OF THE DAM'S BENEFITS ON COMPLIANCE WITH THE COMPACT, AND TO
REQUIRE THAT CONTRACTS FROM THE UNITED STATES SHOULD SO PROVIDE. 
(FN17)  THE UPPER STATES THEN INSISTED ON INSERTING THE REQUIREMENT IN
SEC. 5 THAT NO ONE WAS TO RECEIVE STORED WATER WITHOUT A CONTRACT,
EXPRESSLY AND SOLELY FOR THE PURPOSE OF TYING THE COMPACT'S ENFORCEMENT
TO THE CONTRACT POWER.  (FN18)  THERE WAS NO INTENT TO CONFER ABSOLUTE
POWER TO GRANT OR WITHHOLD.  INDEED, TO GIVE EFFECT TO PRIORITIES IN
TIME OF SHORTAGE, UP TO THE MAXIMUM QUANTITIES PERMITTED CALIFORNIA BY
SEC. 4(A), TENDS TO PROMOTE THE STABILITY OF WATER USES, A POLICY
CONGRESS SOUGHT TO FURTHER IN SEC. 5 ITSELF BY REQUIRING THAT CONTRACTS
BE FOR PERMANENT SERVICE.  IN SHORT, DISREGARD OF APPORPRIATIONS IN ONE
STATE IN FAVOR OF THOSE IN ANOTHER, EXCEPT AS REQUIRED BY THE INTER
BASIN APPORTIONMENT OF THE COMPACT OR BY THE CALIFORNIA LIMITATION, WAS
NO PART OF THE PURPOSE OF THIS SECTION; IT WAS DESIGNED TO INSURE
REVENUE AND TO ENFORCE THE COMPACT AND THE CALIFORNIA LIMITATION. 
(FN19) 

WHEN THE PROVISION FOR WATER DELIVERY CONTRACTS WAS FIRST INSERTED IN
THE SWING BILL IN 1926, IT PRESCRIBED THAT "CONTRACTS RESPECTING WATER
FOR DOMESTIC USES MAY BE FOR PERMANENT SERVICE BUT SUBJECT TO RIGHTS OF
PRIOR APPROPRIATORS."  (FN20)  PROPONENTS OF THE BILL LATER ALTERED
THIS PROVISION TO APPLY TO IRRIGATION CONTRACTS AS WELL AS TO REQUIRE,
RATHER THAN SIMPLY TO PERMIT, THAT CONTRACTS BE FOR PERMANENT SERVICE. 
(FN21)  AT THE REQUEST OF THE UPPER STATES, THE PHRASE "SUBJECT TO
RIGHTS OF PRIOR APPROPRIATORS WAS DELETED.  (FN22)  THE COURT CONCLUDES
FROM THIS BIT OF HISTORY THAT CONGRESS CONSIDERED BUT REJECTED THE
SUGGESTION THAT THE LAW OF APPROPRIATION GOVERN THE DISTRIBUTION OF
WATER STORED IN LAKE MEAD.  BUT DELETION OR REJECTION OF A PROPOSED
AMENDMENT IS NOT STRONG EVIDENCE OF LEGISLATIVE INTENTION; THE REASONS
FOR DELETION MAY BE ANY OF A GREAT NUMBER, NOT THE LEAST FREQUENT OF
WHICH IS THAT THE SUGGESTION IS REDUNDANT.  HERE IT SEEMS CLEAR THAT
THERE WAS A FURTHER REASON FOR THE CHANGE.  THE PHRASE WAS DROPPED AT
THE SAME TIME THE PROVISION REQUIRING EACH USER TO HAVE A CONTRACT WAS
ADDED.  UNDER THE BILL AS IT STOOD PRIOR TO THIS NO CONTRACT WAS
REQUIRED, AND NEW CONTRACTS WERE MADE JUNIOR TO ALL PRIOR
APPROPRIATORS, EVEN THOSE INITIATING OR PERFECTING RIGHTS ONLY AFTER
THE STATUTE BECAME EFFECTIVE.  AS AMENDED THE BILL REQUIRED A CONTRACT
OF EVERY USER OF STORED WATERS, AND THE DELETED CLAUSE WAS NO LONGER IN
ACCORD WITH THE CONTRACTUAL PLAN.  IT IS SURELY STRETCHING THINGS TO
SUGGEST THAT DELETION OF THIS NO LONGER ACCURATE LANGUAGE SIGNIFIES
THAT THE SECRETARY MAY AWARD CONTRACTS ON HIS OWN AUTHORITY, WITHOUT
REGARD FOR PRIORITIES THAT WOULD OBTAIN UNDER STATE LAW. 

IN SUPPORT OF ITS CONSTRUCTION OF SEC. 5 THE COURT RELIES IN LARGE
PART UPON AN EXCHANGE BETWEEN SENATOR JOHNSON AND SENATOR WALSH OF
MONTANA.  70 CONG. REC. 168.  THE ONLY THING THIS COLLOQUY SEEMS TO
MAKE CLEAR IS THAT SENATOR JOHNSON HAD NOT COMPREHENSIVELY ANALYZED THE
RELATIONSHIP BETWEEN SEC. 5 AND THE LAW OF APPROPRIATION.  FIRST HE
THOUGHT THE SECRETARY WOULD BE REQUIRED TO DELIVER WATER TO THOSE WHO
HAD APPROPRIATED IT; THEN HE SAID THIS WOULD BE REQUIRED "IF THEY
CONTRACT"; THEN HE AGREED THE SECRETARY MIGHT WITHHOLD WATER "AS HE
SEES FIT"; THEN HE "DOUBTED VERY MUCH" WHETHER THE SECRETARY COULD
DISREGARD LOS ANGELES' APPROPRIATIONS; FINALLY HE SAID "POSSIBLY" THE
SECRETARY MIGHT UTTERLY IGNORE APPROPRIATIONS.  THIS SHIFTING DIALOGUE
CAN SCARCELY BE DEEMED AN AUTHORITATIVE, OR EVEN USEFUL, AID TO
CONSTRUCTION OF THE STATUTE. 

NOR IS THERE WARRANT FOR THE COURT'S RELIANCE ON THE STATEMENTS OF
SUCH OPPPNENTS OF THE BILL AS UTAH'S REPRESENTATIVE COLTON AND
ARIZONA'S REPRESENTATIVE DOUGALS.  OBJECTIONS OF OPPONENTS OF A BILL
ARE SELDOM SIGNIFICANT GUIDES TO ITS CONSTRUCTION.  SEE SCHWEGMANN
BROS. V. CALVERT DISTILLERS CORP., 341 U.S. 384, 394-395.  AND IN ANY
EVENT IN THIS INSTANCE THE OPPONENTS THEMSELVES WERE FAR FROM
CONSISTENT IN THEIR VIEWS.  (FN23) 

OF FAR GREATER SIGNIFICANCE ARE THE STATEMENTS OF THE BILL'S
SUPPORTERS, WHICH CONFIRM THAT NO POWER TO IGNORE APPROPRIATIONS WAS
GIVEN TO THE SECRETARY.  (FN24)  REPRESENTATIVE SWING, AUTHOR OF THE
BILL, RESPONDED TO MR. HAYDEN'S ASSERTION THAT SUCH A POWER WAS GIVEN
WITH AN EMPHATIC DENIAL: "THE DISTRIBUTION WILL EITHER BE BY AGREEMENT
BETWEEN THE STATES OR UNDER THEIR RESPECTIVE LAWS."  HOUSE HEARINGS,
SUPRA, NOTE 1, AT 32.  THE FOLLOWING YEAR HE EXPLAINED THAT THE UNITED
STATES WOULD NOT DISPOSE OF WATER RIGHTS UNDER THE BILL; IT WOULD
MERELY STORE WATER BELONGING TO PERSONS ACQUIRING THEIR RIGHTS UNDER
STATE LAW.  SEE PP. 604-605, SUPRA.  IN 1928, DEFENDING THE HOUSE BILL
AGAINST AN ARIZONA WITNESS' CHARGE THAT CALFIORNIA MIGHT APPROPRIATE
THE ENTIRE LOWER BASIN SUPPLY, MR. SWING DID NOT DISPUTE THE STATEMENT
AS TO CALIFORNIA'S RIGHTS BUT REINFORCED IT BY DECLARING THAT ARIZONA
WAS FREE TO MAKE APPROPRIATIONS TOO.  HEARINGS BEFORE HOUSE COMMITTEE
ON IRRIGATION AND RECLAMATION ON H.R. 5773, 70TH CONG., 1ST SESS. 57
58.  HE LATER ASSURED THE HOUSE THAT NOTWITHSTANDING THE BILL ARIZONA
"STILL HAS THE BENEFIT OF THE LAW OF PRIOR APPROPRIATION, AND SHE STILL
HAS THE RIGHT TO THE BENEFICIAL USE OF ANY OF THE WATER SHE IS ABLE TO
PUT TO USE."  69 CONG. REC. 9781.  DELPH CARPENTER, PROPONENT OF THE
SEC. 5 CONTRACT REQUIREMENT, SAID THAT IT WAS DESIGNED TO BURDEN
STORAGE WATER WITH THE COMPACT, AND THUS TO PROTECT THE UPPER BASIN,
AND THAT "IT HAS NOTHING TO DO WITH THE INTERSTATE RELATIONS BETWEEN
ARIZONA AND CALIFORNIA."  (FN25)  SENATOR JOHNSON, SPONSOR OF THE
SENATE BILL, TOLD THE SENATE THE BILL WAS MADE A PART OF THE
RECLAMATION LAW, WHICH "SPECIFICALLY PROTECTS EACH STATE IN ITS WATER
RIGHTS AND IN THE RIGHTS OF THE CITIZENS OF THOSE STATES TO WATER."  68
CONG. REC. 4292.  SENATOR PITTMAN INSISTED THERE WAS NOTHING IN THE
BILL (PRIOR TO THE CALIFORNIA LIMITATION) TO PREVENT EITHER ARIZONA OR
CALIFORNIA FROM APPROPRIATING ALL THE WATER SHE COULD USE.  (FN26)
SENATOR PHIPPS, WHOSE AMENDMENT BECAME THE CALIFORNIA LIMITATION,
DECLARED THAT ANY DISPUTE OVER THE RELATIVE RIGHTS OF ARIZONA AND OF
LOS ANGELES WOULD BE RESOLVED BY THE SECRETARY IN ACCORDANCE WITH
PRIORITY OF APPROPRIATION AND THE NORMAL PREFERENCE FOR DOMESTIC OVER
AGRICULTURAL USE.  (FN27) 

OF FURTHER WEIGHT IN SUPPORTING THE VIEW THAT CONGRESS DID NOT
CONSTRUE SEC. 5 TO DESTROY THE LAW OF APPROPRIATION AND APPORTIONMENT
IS THE FACT THAT THE ENTIRE CONTROVERSY OVER THE CALIFORNIA LIMITATION
TOOK PLACE AFTER SEC. 5 WAS ADDED TO THE BILL.  UTAH WAS SO CERTAIN
THAT ARIZONA REMAINED FREE TO APPROPRIATE WATER DESPITE SEC. 5 THAT SHE
REPEALED HER RATIFICATION OF THE SIX-STATE COMPACT THEREAFTER.  (FN28)
WHILE THE ORIGINAL COMMITTEE AMENDMENT TO THE ACT WOULD HAVE REQUIRED
THE SECRETARY TO LIMIT CALIFORNIA'S APPROPRIATIONS, THE DEBATES
EVIDENCE NO CONVICTION THAT THE SECRETARY HAD EVEN A PERMISSIVE
AUTHORITY TO DO SO BY VIRTUE OF THE UNAMENDED SEC. 5. 

                                       IV.

                THE BEARING OF OTHER PROVISIONS OF THE

                               PROJECT ACT. 

NOTHING IN THE PROJECT ACT EXPRESSLY GIVES THE SECRETARY POWER TO
IGNORE APPROPRIATIONS SO LONG AS FINANCIAL CONDITIONS ARE MET AND THE
COMPACT AND LIMITATIONS ARE OBSERVED.  SENATORS HAYDEN AND PITTMAN, AS
THE COURT NOTES, DID INDICATE THAT SEC. 4(A) PROVIDED FOR AN
APPORTIONMENT OF THE WATER, ALTHOUGH EVEN THEY DID NOT SUGGEST THAT
SEC. 4(A) GAVE ANY AUTHORITY TO THE SECRETARY TO MAKE AN APPORTIONMENT
BY HIS CONTRACTS OR TO ALLOCATE THE BURDENS IN TIME OF SHORTAGE.  BUT
IN ANY EVENT, AS ALREADY NOTED, PP. 606-607, SUPRA, SEC. 4 DOES NOT BY
ITS TERMS MAKE AN APPORTIONMENT; RATHER IT SIMPLY REQUIRES SIX-STATE
RATIFICATION OF THE COMPACT AND AN AGREEMENT BY CALIFORNIA TO LIMIT HER
SHARE AS CONDITIONS ON THE EFFECTIVENESS OF THE ACT, AND AUTHORIZES AN
APPORTIONMENT BY THE STATES THEMSELVES.  IN THE WORDS OF SENATOR
JOHNSON, THE PROVISION: 

"  ...  DOES NOT DIVIDE THE WATER BETWEEN ARIZONA AND CALIFORNIA.  IT
FIXES A MAXIMUM AMOUNT BEYOND WHICH CALIFORNIA CAN NOT GO."  70 CONG.
REC. 385. 

NOR DOES SEC. 6, WHICH REQUIRES THAT THE DAM BE OPERATED FOR THE
SATISFACTION OF "PRESENT PERFECTED RIGHTS" AMONG OTHER PURPOSES,
INDICATE BY NEGATIVE IMPLICATION THAT THE SECRETARY MAY IGNORE ALL
OTHER APPROPRIATIONS.  THIS PROVISION WAS DRAFTED BY THE UPPER BASIN
STATES IN ORDER TO INSURE THAT THE CONDITION OF THE COMPACT HAD BEEN
MET TO RELIEVE THEM FROM THE CLAIMS OF PERFECTED USERS BELOW.  (FN29)
THAT CONDITION WAS THE CONSTRUCTION OF AN ADEQUATE STORAGE RESERVOIR
AGAINST WHICH THOSE CLAIMS COULD BE ASSERTED; THE COMPACT HAS NOTHING
TO DO WITH WHETHER RIGHTS PERFECTED UNDER STATE LAW SINCE 1929 MAY BE
IGNORED BY THE SECRETARY IN AWARDING CONTRACTS.  SECTION 8(B), WHICH
SUBJECTS THE UNITED STATES AND ALL USERS OF THE PROJECT TO ANY COMPACT
ALLOCATING AMONG THE LOWER BASIN STATES "THE BENEFITS, INCLUDING POWER,
ARISING FROM THE USE OF WATER ACCRUING TO SAID STATES," AND WHICH
SUBJECTS SUCH AN AGREEMENT, IF MADE AFTER JANUARY 1, 1929, TO ANY
DELIVERY CONTRACTS MADE PRIOR TO ITS APPROVAL, IS SIMILARLY NO
AUTHORITY FOR THE COURT'S CONCLUSION.  LEGISLATIVE HISTORY IS VIRTUALLY
SILENT AS TO THE REASON FOR GIVING SUCH CONTRACTS PRECEDENCE, BUT THE
PROVISION SEEMS SIMPLY TO HAVE BEEN INTENDED TO PROMOTE THE ENTERING OF
CONTRACTS BY INSURING THEIR PERMANENCE IN ACCORDANCE WITH THE
REQUIREMENT OF SEC. 5.  (FN30)  THERE IS NO INDICATION IN SEC. 8(B)
WHETHER OR NOT THE SECRETARY IS FREE IN AWARDING CONTRACTS TO IGNORE
EXISTING APPROPRIATIONS; IT MERELY EVIDENCES A POLICY THAT RIGHTS SO
PERFECTED AS TO HAVE BEEN REDUCED TO A CONTRACT FOR DELIVERY AT A
CONSIDERATION, WHATEVER THE BASIS ON WHICH THEY SHOULD BE AWARDED,
OUGHT NOT TO BE DESTROYED BY A SUBSEQUENT INTERSTATE AGREEMENT. 

IF THE STATUTE WERE COMPLETELY SILENT AS TO WHETHER THE SECRETARY MAY
DISREGARD APPROPRIATIONS, THE NORMAL INFERENCE WOULD BE THAT CONGRESS
DID NOT MEAN TO DISPLACE EXISTING LAW.  ENOUGH HAS BEEN SAID OF THE
SATUTE'S HISTORY TO BUTTRESS THIS INFERENCE BEYOND QUESTION.  MOREOVER,
THE STATUTE IS BY NO MEANS SILENT ON THIS MATTER.  THE REFERENCES IN
SEC. 8(A) AND (B) TO "APPROPRIATORS" OF WATER STORED OR DELIVERED BY
THE PROJECT, AND IN SEC. 4(A) TO THE TAKING OF STEPS "TO INITIATE OR
PERFECT ANY CLAIMS TO THE USE OF WATER" MADE AVAILABLE BY THE DAM, ARE
ONLY THE LEAST EVIDENCE.  (FN31) SECTION 14 PROVIDES THAT THE
RECLAMATION ACT SHALL GOVERN THE OPERATION OF HOOVER DAM EXCEPT AS THE
PROJECT ACT OTHERWISE PROVIDES.  SECTION 8 OF THE RECLAMATION ACT, 32
STAT. 390, 43 U.S.C. SEC. 383, DIRECTS THE SECRETARY OF THE INTERIOR IN
CARRYING OUT HIS DUTIES UNDER THE ACT TO PROCEED IN ACCORDANCE WITH
STATE AND TERRITORIAL LAWS AND DECLARES THAT NOTHING IN THE FEDERAL ACT
"SHALL IN ANY WAY AFFECT ANY RIGHT OF ANY STATE OR OF THE FEDERAL
GOVERNMENT OR OF ANY LANDOWNER, APPROPRIATOR, OR USER OF WATER IN, TO,
OR FROM ANY INTERSTATE STREAM OR THE WATERS THEREOF." 

BOTH REPRESENTATIVE SWING AND SENATOR JOHNSON EMPHASIZED THAT THIS
PROVISION WAS DELIBERATELY INCORPORATED IN THE PROJECT ACT TO SAFEGUARD
FROM FEDERAL DESTRUCTION THE RIGHTS OF THE STATES TO THEIR SHARES OF
THE WATER.  (FN32)  THIS COURT MADE CLEAR IN WYOMING V. COLORADO, 259
U.S. 419, 463, THAT BY THUS PROTECTING THE RIGHTS OF ANY STATE IN AN
INTERSTATE STREAM CONGRESS INTENDED TO LEAVE UNTOUCHED THE LAW OF
INTERSTSTE EQUITABLE APPORTIONMENT.  IVANHOE IRRIG.  DIST.  V.
MCCRACKEN, 357 U.S. 275, 291, DESPITE ITS DICTUM THAT SEC. 8 APPLIES
ONLY TO THE ACQUISITION OF RIGHTS BY THE UNITED STATES AND NOT TO ITS
OPERATION OF A DAM, HOLDS ONLY THAT THE CLEAR COMMAND OF SEC. 5 OF THE
RECLAMATION ACT, 32 STAT. 389, 43 U.S.C. SEC. 431 - THAT WATER
DELIVERIES TO EACH USER NOT EXCEED THE QUANTITY REQUIRED FOR 160 ACRES
PREVAILS OVER STATE LAW, NOT THAT STATE LAW DOES NOT GENERALLY GOVERN
PRIORITIES IN THE USE OF WATER FROM FEDERAL RECLAMATION PROJECTS UNDER
SEC. 8.  (FN33)  THE COURT IN IVANHOE EXPRESSLY STATED THAT IT WAS
REACHING ITS NARROW CONCLUSION: 

"WITHOUT PASSING GENERALLY ON THE COVERAGE OF SEC. 8 IN THE DELICATE
AREA OF FEDERAL-STATE RELATIONS IN THE IRRIGATION FIELD  ...  ."  357
U.S., AT 292. 

THIS GENERAL QUESTION, WITH REFERENCE TO WHAT IS UNDOUBTEDLY THE MOST
IMPORTANT SINGLE WATER PROJECT IN THE UNITED STATES, IS PRECISELY THE
QUESTION BEFORE US TODAY.  IN VIEW OF THE LANGUAGE OF THE PROJECT ACT,
AS WELL AS ITS BACKGROUND AND LEGISLATIVE HISTORY, THERE CAN, I THINK,
BE NO DOUBT OF THE ANSWER. 

                         V.

                THE LACK OF STANDARDS DEFINING THE LIMITS OF THE

        SECRETARY'S POWER. 

THE SECRETARY, THE COURT HOLDS, HAS ALREADY APPORTIONED THE WATERS OF
THE MAINSTREAM BY HIS CONTRACTS WITH ARIZONA AND NEVADA AND HAS DONE SO
IN ACCORDANCE WITH THE FORMULA SUGGESTED AS A BASIS FOR AN INTERSTATE
AGREEMENT IN SEC. 4(A).  THIS HOLDING MAY COME AS A SURPRISE TO THOSE
RESPONSIBLE FOR A STATEMENT SUCH AS THAT IN THE ARIZONA CONTRACT, WHICH
PROVIDES THAT ITS TERMS ARE:

"  ...  WITHOUT PREJUDICE TO, ANY OF THE RESPECTIVE CONTENTIONS OF
SAID STATES AND WATER USERS AS TO  ...  (5) WHAT LIMITATIONS ON USE,
RIGHTS OF USE, AND RELATIVE PRIORITIES EXIST AS TO THE WATERS OF THE
COLORADO RIVER SYSTEM  ...  ." 

BUT WHETHER THE QUANTUM OF THE SECRETARY'S APPORTIONMENT WAS
INTENTIONAL OR INADVERTENT, THE COURT HOLDS THAT SUCH AN APPORTIONMENT
HAS BEEN MADE, AND THE RELEVANT QUESTION FOR THE FUTURE IS THE ONE THAT
IS PERHAPS PRIMARILY RESPONSIBLE FOR THIS LITIGATION:  HOW IS THE
BURDEN OF ANY SHORTAGE TO BE BORNE BY THE LOWER BASIN STATES?  THIS
QUESTION IS NOT DECIDED; THE COURT SIMPLY STATES THAT THE INITIAL
DETERMINATION IS FOR THE SECRETARY TO MAKE. 

WHAT YARDSTICKS HAS CONGRESS LAID DOWN FOR HIM TO FOLLOW?  THERE IS,
IT IS TRUE, A DUTY IMPOSED ON THE SECRETARY UNDER SEC. 6 TO SATISFY
"PRESENT PERFECTED RIGHTS," AND IF THESE RIGHTS ARE DEFINED AS THOSE
PERFECTED ON OR BEFORE THE EFFECTIVE DATE OF THE ACT, IT HAS BEEN
ESTIMATED THAT CALIFORNIA'S SHARE AMOUNTS TO APPROXIMATELY 3,000,000
ACRE-FEET ANNUALLY.  THIS, THEN, WOULD BE THE FLOOR PROVIDED BY THE ACT
FOR CALIFORNIA, ASSUMING ENOUGH WATER IS AVAILABLE TO SATISFY SUCH
PRESENT PERFECTED RIGHTS.  AND THE ACT ALSO HAS PROVIDED A CEILING FOR
CALIFORNIA:  THE 4,400,000 ACRE-FEET OF WATER (PLUS ONE-HALF OF
SURPLUS) DESCRIBED IN SEC. 4(A). 

BUT WHAT OF THAT WIDE AREA BETWEEN THESE TWO OUTER LIMITS?  HERE, WHEN
WE LOOK FOR THE STANDARDS DEFINING THE SECRETARY'S AUTHORITY, WE FIND
NOTHING.  (FN34)  UNDER THE COURT'S CONSTRUCTION OF THE ACT, IN OTHER
WORDS, CONGRESS HAS MADE A GIFT TO THE SECRETARY OF ALMOST 1,500,000
ACRE-FEET OF WATER A YEAR, TO ALLOCATE VIRTUALLY AS HE PLEASES IN THE
EVENT OF ANY SHORTAGE PREVENTING THE FULFILLMENT OF ALL OF HIS DELIVERY
COMMITMENTS. 

THE DELEGATION OF SUCH UNRESTRAINED AUTHORITY TO AN EXECUTIVE
OFFICIAL RAISES, TO SAY THE LEAST, THE GRAVEST CONSTITUTIONAL DOUBTS. 
SEE SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495; PANAMA
REFINING CO. V. RYAN, 293 U.S. 388; CF. YOUNGSTOWN SHEET & TUBE CO. V.
SAWYER, 343 U.S. 579, 587-589.  THE PRINCIPLE THAT AUTHORITY GRANTED BY
THE LEGISLATURE MUST BE LIMITED BY ADEQUATE STANDARDS SERVES TWO
PRIMARY FUNCTIONS VITAL TO PRESERVING THE SEPARATION OF POWERS REQUIRED
BY THE CONSTITUTION.  (FN35) FIRST, IT INSURES THAT THE FUNDAMENTAL
POLICY DECISIONS IN OUR SOCIETY WILL BE MADE NOT BY AN APPOINTED
OFFICIAL BUT BY THE BODY IMMEDIATELY RESPONSIBLE TO THE PEOPLE. 
SECOND, IT PREVENTS JUDICIAL REVIEW FROM BECOMING MERELY AN EXERCISE AT
LARGE BY PROVIDING THE COURTS WITH SOME MEASURE AGAINST WHICH TO JUDGE
THE OFFICIAL ACTION THAT HAS BEEN CHALLENGED. 

THE ABSENCE OF STANDARDS UNDER THE COURT'S CONSTRUCTION IS AN
INSTRUCTIVE ILLUSTRATION OF THESE POINTS.  THE UNRESTRAINED POWER TO
DETERMINE THE BURDEN OF SHORTAGES IS THE POWER TO MAKE A POLITICAL
DECISION OF THE HIGHEST ORDER.  INDEED, THE POLITICAL PRESSURES THAT
WILL DOUBTLESS BE BROUGHT TO BEAR ON THE SECRETARY AS A RESULT OF THIS
DECISION ARE DISTURBING TO CONTEMPLATE.  FURTHERMORE, WHATEVER THE
SECRETARY DECIDES TO DO, THIS COURT WILL SURELY BE UNABLE EFFECTIVELY
TO REVIEW HIS ACTIONS, SINCE IT WILL NOT KNOW WHAT GUIDES WERE INTENDED
BY CONGRESS TO GOVERN THOSE ACTIONS. 

THESE SUBSTANTIAL CONSTITUTIONAL DOUBTS DO NOT, OF COURSE, LEAD TO
THE CONCLUSION THAT THE PROJECT ACT MUST BE HELD INVALID.  RATHER, THEY
BUTTRESS THE CONVICTIONS, ALREADY FIRMLY GROUNDED IN THE ACT AND ITS
HISTORY, THAT NO SUCH AUTHORITY WAS VESTED IN THE SECRETARY BY
CONGRESS.  ITS PURPOSE INSTEAD WAS TO LEAVE THESE MATTERS TO STATE LAW,
AND DEVELOPED PRINCIPLES OF EQUITABLE APPORTIONMENT, SUBJECT ONLY TO
THE EXPLICIT EXCEPTIONS PROVIDED IN THE ACT. 

FOR THESE REASONS I RESPECTFULLY DISSENT FROM THE CONSTRUCTION WHICH
THE COURT PUTS UPON THIS ASPECT OF THE ACT. 

FN1  HEARINGS BEFORE HOUSE COMMITTEE ON IRRIGATION AND RECLAMATION ON
H.R. 6251 AND H.R. 9826, 69TH CONG., 1ST SESS. 163. 

FN2  HEARINGS BEFORE HOUSE COMMITTEE ON RULES ON H.R. 9826, 69TH
CONG., 2D SESS. 116.  THE BILL THEN UNDER CONSIDERATION, AS RECOMMENDED
BY THE HOUSE COMMITTEE ON IRRIGATION AND RECLAMATION, APPEARS IN H.R.
REP. NO. 1657, 69TH CONG., 2D SESS. 29-34. 

FN34  THE ONLY CHANGE THAT NEED BE NOTED FOR PRESENT PURPOSES IS THE
ADDITION OF A CLAUSE REQUIRING CONTRACTS TO CONFORM TO SEC. 4(A),
DISCUSSED BELOW, AS WELL AS TO THE COMPACT. 

FN4  ARIZONA, CLOUGH V. WING, 2 ARIZ. 371, 17 P. 453; COLORADO:
COFFIN V. LEFT HAND DITCH CO., 6 COLO. 443; NEVADA:  JONES V. ADAMS, 19
NEV. 78, 6 P. 442; NEW MEXICO:  ALBUQUERQUE LAND & IRR.  CO. V.
GUTIERREZ, 10 N. MEX.  177, 61 P. 357; UTAH:  STOWELL V. JOHNSON, 7
UTAH 215, 26 P. 290; WYOMING: MOYER V. PRESTON, 6 WYO. 308, 44 P. 845. 

FN5  CALIFORNIA:  OSGOOD V. EL DORADO WATER & DEEP GRAVEL MINING CO.,
56 CAL. 571. 

FN6  E.G., COFFIN V. LEFT HAND DITCH CO., 6 COLO. 443, 446-447, 449
450; STOWELL V. JOHNSON, 7 UTAH 215, 225, 26 P. 290, 291; WILLEY V.
DECKER, 11 WYO. 496, 515-524, 73 P. 210, 215-218.  "IRRIGATION," SAID
THE NEVADA COURT, "  ...  WOULD BE STRANGLED BY THE ENFORCEMENT OF THE
RIPARIAN PRINCIPLE."  TWADDLE V. WINTERS, 29 NEV. 88, 106, 85 P. 280,
284. 

FN7  WARD BANNISTER, DENVER ATTORNEY AND SPOKESMAN FOR THE UPPER
BASIN STATES, SAID THAT "THE PURPOSE OF THE COMPACT IS TO PROVIDE THE
THREE LOWER STATES WITH A FUND OF WATER FROM WHICH THEY MAY APPROPRIATE
AND THE FOUR UPPER STATES WITH A FUND OF WATER FROM WHICH THEY MAY
APPROPRIATE."  HEARINGS BEFORE HOUSE COMMITTEE ON IRRIGATION AND
RECLAMATION ON H.R. 2903, 68TH CONG., 1ST SESS. 232.    FN8  SEE THE
REMARKS OF SENATOR HAYDEN, 70 CONG. REC. 388. 

NF9  SEE, E.G., H.R. REP. NO. 1657, 69TH CONG., 2D SESS. PT. 2, 3-4;
HEARINGS, SUPRA, NOTE 2, AT 34-37. 

FN10  HEARINGS BEFORE SENATE COMMITTEE ON IRRIGATION AND RECLAMATION
PURSUANT TO S. RES.  NO. 320, 68TH CONG., 2D SESS. 663-675.  "IT WAS
THE OPPRESSION OF THE NATIONAL GOVERNMENT STRANGLING DEVELOPMENT,
PREVENTING DEVELOPMENT IN THE STATES  ...  .  THESE TWO EXPERIENCES AND
OTHERS TAUGHT COLORADO, WYOMING AND NEW MEXICO THE EXTEND TO WHICH A
DEPARTMENT OF THE UNITED STATES WOULD GO IN OVERRIDING STATE AUTHORITY
AND OPPRESSING WHOLE COMMUNITIES  ...  .  THUS IT CAME TO THE ATTENTION
OF THE STATES, THAT THE UNITED STATES GOVERNMENT INTENDED TO SUPERSEDE
ALL STATE LAW AND OVERRIDE STATE AUTHORITY ON THAT RIVER  ...  ANY
DESIRE BY A GOVERNMENTAL BUREAU TO ULTIMATELY, BY INSIDUOUS OR OTHER
METHODS, TAKE OVER THE CONTROL AND DOMINION OF THE STREAMS WITHIN THE
STATES AND TO OVERRIDE STATE AUTHORITY AT ONCE BECOMES NOT ONLY
ABHORRENT BUT GIVES RISE TO A FEELING OF BITTER RESENTMENT AND SOUNDS A
CALL TO ARMS FOR SELF-DEFENSE  ...  ."  ID., AT 663, 665, 671, 673. 
SEE ALSO HIS REMARKS AT HEARINGS, SUPRA, NOTE 1, AT 146-157. 

FN11  SENATOR KING:  "IF THE SENATOR MEANS BY HIS STATEMENT THAT THE
FEDERAL GOVERNMENT MAY GO INTO A STREAM, WHETHER IT BE THE COLORADO
RIVER, THE SACRAMENTO RIVER, OR A RIVER IN THE STATE OF MONTANA, AND
PUT ITS POWERFUL HANDS DOWN UPON THE STREAM AND SAY 'THIS IS MINE; I
CAN BUILD A DAM THERE AND ALLOCATE WATER TO WHOM I PLEASE, REGARDLESS
OF OTHER RIGHTS, EITHER SUSPENDED, INCHOATE, OR PERFECTED,' I DENY THE
POSITION WHICH THE SENATOR TAKES."  70 CONG. REC. 169.  THE SENATOR IN
QUESTION WAS CARL HAYDEN; HE DENIED THAT HIS STATEMENT, WHICH CONCERNED
HIS AUTHORIZATION FOR A COMPACT AMONG THE THREE LOWER STATES, MEANT ANY
SUCH THING. 

SENATOR PHIPPS:  "I AM FIRMLY CONVINCED THAT THERE MUST BE VOLUNTARY
RATIFICATION ON THE PART OF EACH INTERESTED STATE IN ORDER TO MAKE THE
COMPACT EFFECTIVE.  THIS IS THE ONLY METHOD OF SETTLING POSSIBLE
CONTROVERSIES PERMANENTLY AND OF PUTTING THE WATER OF THE STREAM TO ITS
HIGHEST BENEFICIAL USE.  IT IS THE ONLY SATISFACTORY METHOD; IT IS THE
ONLY LEGAL METHOD TO AVOID PROCEEDINGS IN THE COURTS WHICH WOULD PROVE
COSTLY AND ALMOST INTERMINABLE."  68 CONG. REC. 4515. 

SENATOR HAYDEN:  "THERE ARE ONLY TWO WAYS IN WHICH THIS CONTROVERSY
CAN BE SETTLED.  EITHER THE STATES CAN AGREE UPON AN EQUITABLE
APPORTIONMENT OF WATERS OF THE COLORADO RIVER OR, IN THE ABSENCE OF A
COMPACT, THE SUPREME COURT OF THE UNITED STATES CAN DETERMINE WHAT THE
RIGHTS OF THE VARIOUS STATES ARE IN ON THAT STREAM  ...  .  ARIZONA
DENIES THAT IT IS WITHIN THE POWER OF CONGRESS TO APPORTION THE WATERS
OF AN INTERSTATE STREAM AMONG THE STATES."  HEARINGS, SUPRA, NOTE 2, AT
75,76. 

REPRESENTATIVE COLTON:  "I HAVE BEEN INFORMED THAT AN ATTORNEY FOR
THE RECLAMATION SERVICE OF THE UNITED STATES CLAIMS THAT CONGRESS HAS
THE POWER TO ALLOCATE AND APPORTION ALL OF THE COLORADO RIVER AMONG THE
STATES REGARDLESS OF THEIR WISHES IN THE MATTER.  SUCH A THEORY IS
ABHORRENT TO OUR WHOLE PLAN OF GOVERNMENT AND PARTICULARLY TO THE
THEORY ON WHICH OUR WHOLE SYSTEM OF WATER RIGHTS HAS BEEN BUILT UP." 
HEARINGS BEFORE HOUSE COMMITTEE ON IRRIGATION AND RECLAMATION ON H.R.
5773, 70TH CONG., 1ST SESS. 414. 

REPRESENTATIVE LEATHERWOOD:  "THERE ARE ONLY TWO AGENCIES THAT CAN
ALLOCATE THE WATERS OF THIS GREAT RIVER, THE STATES THEMSELVES BY
TREATY RATIFIED BY THE CONGRESS OF THE UNITED STATES, OR BY THE
JUDICIAL BRANCH OF THE GOVERNMENT; FOR THE CONGRESS HAS NO POWER TO
ALLOCATE ANY OF THE WATERS OF THIS RIVER OR ANY OTHER RIVER WHERE THE
DOCTRINE OF PRIOR APPROPRIATION IS IN FORCE."  HEARINGS, SUPRA, NOTE 2,
AT 31. 

WARD BANNISTER: "THERE IS NOTHING IN THE FEDERAL CONSTITUTION UPON
WHICH TO BASE THE POWER OF THE FEDERAL GOVERNMENT TO DIVIDE THIS WATER
AMONG THE STATES  ...  .  THE SAME THING THAT WOULD INVALIDATE A
PROVISION INSERTED BY CONGRESS DIRECT WOULD INVALIDATE ANY RULE
PROMULGATED BY THE SECRETARY OF THE INTERIOR UNDER CONGRESSIONAL
PERMISSION, AND THE UPPER STATES WOULD FIND THEMSELVES UTTERLY
HELPLESS."  HEARINGS, SUPRA, N. 7, AT 195. 

FN12  68 CONG. REC. 4763; S. REP. NO. 592, 70TH CONG., 1ST SESS. 2. 

FN13 S. REP. NO. 592, 70TH CONG., 1ST SESS. 2. 

FN14  SEE NOTE 10, SUPRA, AND ACCOMPANYING TEXT. 

FN15  HEARINGS, SUPRA, NOTE 1, AT 6, 46. 

FN16  H.R. 9826, 69TH CONG., 1ST SESS., SEC. 5. 

FN17  S. 1868, 69TH CONG., 1ST SESS.; H.R. 6251, 69TH CONG., 1ST
SESS.; H.R. 9826, 69TH CONG., 1ST SESS.  THIS AMENDMENT, WROTE
SECRETARY WORK IN RECOMMENDING THE BILL, "PROVIDES FOR THE DISTRIBUTION
AND USE OF ALL WATER FOR IRRIGATION, POWER AND OTHERWISE, IN ACCORDANCE
WITH THE COLORADO RIVER COMPACT."  HEARINGS, SUPRA, NOTE 1, AT 8. 

FN18  SEE NOTE 1, 2, SUPRA, AND ACCOMPANYING TEXT.  CONTRACTS WERE
LATER MADE SUBJECT ALSO TO THE CALIFORNIA LIMITATION IN SEC. 4(A). 

FN19  IT IS SIGNIFICANT TO CONTRAST THE LANGUAGE GIVING THE SECRETARY
AUTHORITY TO ENTER WATER DELIVERY CONTRACTS WITH THAT IN SEC. 5(C),
RELATING TO THE DISTRIBUTION OF ELECTRICAL POWER.  THE LATTER PROVISION
EXPLICITLY GIVES THE SECRETARY AUTHORITY TO RESOLVE CONFLICTS IN
APPLICATIONS, REFERRING HIM FOR THE GOVERNING STANDARDS TO "THE POLICY
EXPRESSED IN THE FEDERAL WATER POWER ACTS AS TO CONFLICTING
APPLICATIONS FOR PERMITS AND LICENSES." 

FN20  HEARINGS, SUPRA, NOTE 1, AT 12. 

FN21  ID., AT 115. 

FN22 ID., AT 97, 115. 

FN23  THUS, ALMOST IN THE SAME BREATH WITH WHICH REPRESENTATIVE
COLTON MADE HIS THEN SEEMINGLY DIRE PREDICTION OF NATIONAL CONTROL, HE
DECLARED THAT "ARIZONA IS NOT A PARTY AT ALL TO THIS COMPACT.  SHE AND
HER CITIZENS MAY APPROPRIATE WATER AT ANY TIME."  69 CONG. REC. 9648. 
ARIZONA, AS HAS ALREADY BEEN POINTED OUT, WAS BUSILY OPPOSING THE BILL
ON THE SPECIFIC GROUND THAT IT LEFT CALIFORNIA FREE TO APPROPRIATE FROM
THE RIVER. 

FN24  THE ONE APPARENT EXCEPTION TO THE UNANIMITY OF VIEW AMONG THE
BILL'S SUPPORTERS IS THE STATEMENT IN REPRESENTATIVE SMITH'S REPORT OF
THE THIRD SWING BILL TO THE HOUSE:  "ALL RIGHTS RESPECTING WATER OR
POWER UNDER THE PROJECT ARE, UNDER THE TERMS OF THE BILL, TO BE
DISPOSED OF BY CONTRACT BY THE GOVERNMENT.  IT IS NOT REASONABLE TO
ASSUME THAT THE GOVERNMENT WILL DO ANYTHING OF AN UNFAIR OR PREJUDICIAL
NATURE TO ARIZONA."  H.R.  REP. NO. 1657, 69TH CONG., 2D SESS. 11. 

FN25  SEE NOTE 1, SUPRA, AND ACCOMPANYING TEXT.  MR. CARPENTER'S
REMARKS ALSO INCLUDED THE FOLLOWING:  "'EXCEPT BY CONTRACT MADE AS
HEREIN STATED' MEANS THIS:  IF THE FLOW OF THE COLORADO RIVER IS
CONTROLLED AND REGULATED BY THE CONSTRUCTION OF THE BLACK CANYON DAM,
AND ANY PERSON IN THE STATE OF ARIZONA ATTEMPT TO TAKE ANY WATER OUT OF
THE STREAM WHICH HAS BEEN DISCHARGED FROM THE RESERVOIR AND IS BEING
CARRIED IN THE STREAM BED, AS A NATURAL CONDUIT, FOR DELIVERY TO LOWER
USERS, THIS LAW WOULD BE BROUGHT INTO EFFECT AND HE WOULD BE PREVENTED
FROM USING ANY OF THAT WATER INDEPENDENT OF THE COLORADO RIVER COMPACT
BUT UNINCUMBERED BY ANY OTHER CONDITION FOR THE BENEFIT OF CALIFORNIA
AND NEVADA.  IN OTHER WORDS, THE COMPACT DOES NOT DISTURB THE RIGHTS
BETWEEN ARIZONA, CALIFORNIA, AND NEVADA, INTER SESE, AS TO THEIR
PORTION OF THE WATER."  HEARINGS, SUPRA, NOTE 1, AT 163. 

FN26  "IF A DAM SHALL BE BUILT AT BOULDER CANYON IT WILL IMPOUND
CERTAIN WATERS AND EQUATE THE FLOW BELOW.  THE WATER BELOW WILL BE
SUBJECT TO APPROPRIATION AND USE BY BOTH CALIFORNIA AND ARIZONA  ...  .
IN OTHER WORDS, THERE IS NOTHING IN THIS PORPOSED LEGISLATION THAT
COULD PREVENT ARIZONA FROM APPROPRIATING FROM THE COLORADO RIVER WITHIN
HER BORDERS ALL OF THE WATER SHE COULD USE FOR IRRIGATION."  68 CONG.
REC. 4412. 

FN27  "IT SEEMS TO ME THAT IN RESOLVING SUCH A DIFFICULTY, SHOULD IT
ARISE, THERE WOULD BE TAKEN INTO CONSIDERATION THE FACT THAT WATER FOR
DOMESTIC USE SHOULD TAKE PRIORITY OVER WATER INTENDED FOR PURPOSES OF
IRRIGATION.  ASIDE FROM THAT, THESE FILINGS ARE FIRST IN POINT AS
COMPARED WITH THOSE TO WHICH THE SENATOR FROM ARIZONA REFERRED.  THEY
ARE FOR SUPERIOR USE, AND, IN ADDITION, THERETO, THE APPLICANT WHO HAS
MADE THE FILING HAS PURSUED THE PROPER COURSE IN DEVELOPING THE MANNER
OF APPROPRIATION OR THE MANNER OF DIVERTING THE WATER AND PUTTING IT TO
THE HIGHEST BENEFICIAL USE.  I DO NOT ANTICIPATE ANY DIFFICULTY ON THAT
SCORE IN RESOLVING THE QUESTION OF PRIORITY BY THE SECRETARY OF THE
INTERIOR."  70 CONG. REC. 169. 

FN28  SEE 68 CONG. REC. 3064-3065; HEARINGS BEFORE HOUSE COMMITTEE ON
IRRIGATION AND RECLAMATION ON H.R. 5773, 70TH CONG., 1ST SESS. 191,
193, 214-215. 

FN29 SEE HEARINGS, SUPRA, NOTE 1, AT 98, 116, 117. 

FN30  DELPH CARPENTER SAID THAT THE SECRETARY'S CONTRACTS SHOULD BE
LAGGED FOR ONLY A LIMITED PERIOD OF TIME IN ORDER TO GIVE THE STATES
COMPLETE FREEDOM TO AGREE.  ID., AT 204. 

FN31  IT SHOULD ALSO BE NOTED THAT, AS THE MASTER HELD, SEC. 18,
QUOTED ANTE, P. 585, CLEARLY LEAVES EACH STATE FREE TO APPLY ITS OWN
LAW IN DETERMINING RIGHTS AMONG USERS WITHIN ITS BORDERS.  THE COURT'S
STRAINED READING OF THIS PROVISION EMASCULATES ITS ENTIRELY AND
SACRIFICES EVEN MATTERS OF SOLELY INTRASTATE CONCERN ON THE ALTAR OF
FEDERAL SUPREMACY. 

FN32  SEE PP. 604-605, 619-620, SUPRA. 

FN33  NOR IS ANYTHING SAID IN CITY OF FRESNO V. CALIFORNIA, 372 U.S.
627, RELEVANT HERE, SINCE THE COURT THERE STATED ONLY THAT IF THE
GOVERNMENT EXERCISES ITS POWER OF EMINENT DOMAIN, "THE EFFECT OF SEC. 8
IN SUCH A CASE IS TO LEAVE TO STATE LAW THE DEFINITION OF THE PROPERTY
INTERESTS, IF ANY, FOR WHICH COMPENSATION MUST BE MADE."  372 U.S. AT
630.  FRESNO DID NOT CONSIDER THE QUESTION NOW PRESENTED:  THE EFFECT
OF SEC. 8 IN THE ABSENCE OF ANY EXERCISE OF THE FEDERAL POWER OF
EMINENT DOMAIN. 

FN34  NOR, I SUBMIT, DOES THE COURT SUGGEST ANY STANDARDS. 
CERTAINLY, THERE IS NOTHING IN THE ENUMERATION OF PURPOSES IN SEC. 6
WHICH WILL BE OF ANY ASSISTANCE IN HELPING THE SECRETARY ALLOCATE THE
BURDEN OF SHORTAGES AMONG COMPETING IRRIGATION AND DOMESTIC USES WITHIN
AND AMONG THE LOWER BASIN STATES. 

FN35  SEE THE DISCUSSION IN COMMENT, 14 STAN.  L. REV. 372. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS CASE, I THINK, HAS BEEN HAUNTED BY SEVERAL IRRELEVANCIES. 
FIRST, IS THE FACT THAT THE ONLY POINTS FROM WHICH CALIFORNIA CAN TAKE
THE WATER OF THE COLORADO RIVER SYSTEM ARE ON THE MAINSTREAM ABOVE
LAGUNA DAM, THERE BEING NO TRIBUTARIES IN THAT STATE.  THIS FACT, I
THINK, LEADS THE COURT TO THE INFERENCE THAT THE TRIBUTARIES WHICH COME
IN BELOW LAGUNA DAM CONTAIN WATERS TO WHICH CALIFORNIA HAS NO RIGHTS. 
THE CONTROVERSY DOES CONCERN THE WATERS OF THE LOWER TRIBUTARIES, BUT
ONLY INDIRECTLY.  CALIFORNIA DOES NOT SEEK THOSE WATERS.  SHE MERELY
SEEKS TO HAVE THEM TAKEN INTO CONSIDERATION IN THE FORMULA THAT
DETERMINES THE ALLOCATION BETWEEN HER AND ARIZONA. 

ANOTHER IRRELEVANCY IS THE FACT THAT ONLY 2 1/2 % OF THE COLORADO
RIVER DRAINAGE BASIN IS IN CALIFORNIA, ALTHOUGH 90% OF THE WATER WHICH
CALIFORNIA APPROPRIATES LEAVES THE BASIN NEVER TO RETURN.  IF WE WERE
DEALING WITH PROBLEMS OF EQUITABLE APPORTIONMENT, AS WE WERE IN
NEBRASKA V. WYOMING, 325 U.S. 589, THAT FACTOR WOULD BE RELEVANT TO OUR
PROBLEM.  AND IT WOULD BE RELEVANT IN CASE WE WERE DEALING WITH
LITIGATION CONCERNING WATERS IN EXCESS OF THE AMOUNT GRANTED CALIFORNIA
UNDER THE PROJECT ACT.  BUT IT IS IRRELEVANT HERE BECAUSE THE ONLY
JUSTICIABLE QUESTION THAT INVOLVES THE VOLUME OF WATER IS ONE THAT
CONCERNS THE SOURCE OF SUPPLY OUT OF WHICH CALIFORNIA'S 4,400,000 ACRE
FEET WILL BE SATISFIED - A MATTER WHICH I THINK CONGRESS RESOLVED
DIFFERENTLY THAN HAS THE COURT. 

THIRD, IS A MOOD ABOUT THE CONTROVERSY THAT SUGGESTS THAT HERE, AS IN
THE CASES INVOLVING MULTIPURPOSE FEDERAL DAMS, FEDERAL CONTROL OF
NAVIGABLE STREAMS CONTROLS THIS LITIGATION.  THE RIGHT OF THE FEDERAL
GOVERNMENT TO THE FLOW OF THE STREAM IS NOT AN ISSUE HERE.  WE DEAL
WITH A VERY UNIQUE FEATURE OF THE IRRIGATION LAWS OF THE 17 WESTERN
STATES. 

THE QUESTION IS NOT WHAT CONGRESS HAS AUTHORITY TO DO, BUT RATHER THE
KIND OF REGIME UNDER WHICH CONGRESS HAS BUILT THIS AND OTHER IRRIGATION
SYSTEMS IN THE WEST.  HERETOFORE THOSE REGIMES HAVE BEEN POSITED ON THE
THEORY THAT STATE LAW DETERMINES THE ALLOTMENT OF WATERS COMING THROUGH
THE IRRIGATION CANALS THAT ARE FED BY THE FEDERAL DAMS. 

MUCH IS WRITTEN THESE DAYS ABOUT JUDICIAL LAWMAKING; AND EVERY
SCHOLAR KNOWS THAT JUDGES WHO CONSTRUE STATUTES MUST OF NECESSITY
LEGISLATE INTERSTITIALLY, TO PARAPHRASE MR. JUSTICE CARDOZO.  SELECTED
WRITINGS (1947 HALL ED.), P. 160.  THE PRESENT CASE IS DIFFERENT.  IT
WILL, I THINK, BE MARKED AS THE BALDEST ATTEMPT BY JUDGES IN MODERN
TIMES TO SPIN THEIR OWN PHILOSOPHY INTO THE FABRIC OF THE LAW, IN
DEROGATION OF THE WILL OF THE LEGISLATURE.  THE PRESENT DECISION, AS
MR. JUSTICE HARLAN SHOWS, GRANTS THE FEDERAL BUREAUCRACY A POWER AND
COMMAND OVER WATER RIGHTS IN THE 17 WESTERN STATES THAT IT NEVER HAS
HAD, THAT IT ALWAYS WANTED, THAT IT COULD NEVER PERSUADE CONGRESS TO
GRANT, AND THAT THIS COURT UP TO NOW HAS CONSISTENTLY REFUSED TO
RECOGNIZE.  OUR RULINGS HERETOFORE HAVE BEEN CONSISTENT WITH THE
PRINCIPLES OF RECLAMATION LAW ESTABLISHED BY CONGRESS BOTH IN
NONNAVIGABLE STREAMS (ICKES V. FOX, 300 U.S. 82, 94-96) AND IN
NAVIGABLE ONES.  NEBRASKA V. WYOMING, 325 U.S. 589, 612.  THE RIGHTS OF
THE UNITED STATES AS STORER OF WATERS IN WESTERN PROJECTS HAVE BEEN
DISTINCTLY UNDERSTOOD TO BE SIMPLY THAT OF "A CARRIER AND DISTRIBUTOR
OF THE WATER."  ICKES V. FOX, SUPRA, P. 95.  AS WE STATED IN NEBRASKA
V. WYOMING, SUPRA, P. 614:    "THE PROPERTY RIGHT IN THE WATER RIGHT IS
SEPARATE AND DISTINCT FROM THE PROPERTY RIGHT IN THE RESERVOIRS,
DITCHES OR CANALS.  THE WATER RIGHT IS APPURTENANT TO THE LAND, THE
OWNER OF WHICH IS THE APPROPRIATOR.  THE WATER RIGHT IS ACQUIRED BY
PERFECTING AN APPROPRIATION, I.E., BY AN ACTUAL DIVERSION FOLLOWED BY
AN APPLICATION WITHIN A REASONABLE TIME OF THE WATER TO A BENEFICIAL
USE." 

AND THAT RESULT WAS REACHED EVEN THOUGH UNDER THOSE OTHER PROJECTS,
AS UNDER THE PRESENT ONE, THE SECRETARY HAD BROAD POWERS TO MAKE
CONTRACTS GOVERNING THE USE AND DISPOSITION OF THE STORED WATER.  SEE,
E.G., 43 U.S.C. SECS. 389, 440.    THE MEN WHO WROTE THE PROJECT ACT
WERE FAMILIAR WITH WESTERN WATER LAW.  WYOMING V. COLORADO, 259 U.S.
419, HAD RECENTLY BEEN DECIDED, HOLDING THAT PRIORITY OF APPROPRIATION
WAS THE DETERMINING FACTOR IN REACHING AN EQUITABLE APPORTIONMENT
BETWEEN TWO WESTERN STATES.  ID., AT 470.  YET, S. REP. NO. 654, 69TH
CONG., 1ST SESS. 26-27, CONTAINS NO SUGGESTION THAT CONGRESS, BY SEC.
5, WAS DISPLACING A DOCTRINE AS IMPORTANT TO THESE WESTERN STATES AS
THE DOCTRINE OF SEIZIN HAS BEEN TO THE DEVELOPMENT OF ANGLO-AMERICAN
PROPERTY LAW.  INSTEAD, ONLY 25 LINES OF THAT REPORT ARE DEVOTED TO
SEC. 5, AND THOSE LINES CLEARLY SUPPORT MR. JUSTICE HARLAN'S CONCLUSION
THAT THE SECTION WAS DESIGNED PRIMARILY AS A FINANCIAL TOOL. 

THE PRINCIPLE THAT WATER PRIORITIES ARE GOVERNED BY STATE LAW IS DEEP
SEATED IN WESTERN RECLAMATION LAW.  IN SPITE OF THE EXPRESS COMMAND OF
SEC. 14 THE PROJECT ACT, WHICH MAKES THE SYSTEM OF APPROPRIATION UNDER
STATE LAW DETERMINE WHO HAS THE PRIORITIES, THE SECRETARY OF THE
INTERIOR IS GIVEN THE RIGHT TO DETERMINE THE PRIORITIES BY
ADMINISTRATIVE FIAT.  NOW ONE CAN RECEIVE HIS PRIORITY BECAUSE HE IS
THE MOST WORTHY DEMOCRAT OR REPUBLICAN, AS THE CASE MAY BE. 

THE DECISION TODAY, RESULTING IN THE CONFUSION BETWEEN THE PROBLEM OF
PRIORITY OF WATER RIGHTS AND THE PUBLIC POWER PROBLEM, HAS MADE THE
DREAM OF THE FEDERAL BUREAUCRACY COME TRUE BY GRANTING IT, FOR THE
FIRST TIME, THE LIFE-AND-DEATH POWER OF DISPENSATION OF WATER RIGHTS
LONG ADMINISTERED ACCORDING TO STATE LAW. 

                                       II. 

AT ISSUE ON THE OTHER MAIN PHASE OF THE CASE IS THE MEANING OF THE
CALIFORNIA LIMITATION CONTAINED IN SEC. 4(A) OF THE PROJECT ACT.  THE
COURT, HOWEVER, DOES NOT USE THE PRESENT LITIGATION AS AN OCCASION TO
DETERMINE ARIZONA'S AND CALIFORNIA'S RIGHTS UNDER THAT ACT, BUT AS A
VEHICLE FOR MAKING A WHOLLY NEW APPORTIONMENT OF THE WATERS IN THE
LOWER BASIN AND TURNING OVER ALL UNRESOLVED PROBLEMS TO THE SECRETARY
OF THE INTERIOR.  THE COURT ACCOMPLISHES THIS BY DISTORTING BOTH THE
HISTORY AND LANGUAGE OF THE PROJECT ACT. 

THE COURT RELIES HEAVILY ON THE TERMS AND HISTORY OF A PROPOSED TRI
STATE COMPACT, AUTHORIZED BY SEC. 4(A) BUT NEVER ADOPTED BY THE STATES
CONCERNED, VIZ., ARIZONA, CALIFORNIA AND NEVADA.  THE PROPOSED TRI
STATE COMPACT PROVIDED FOR A DIVISION OF TRIBUTARY WATERS IDENTICAL TO
THAT MADE BY THE COURT, INSOFAR AS THE GILA IS AWARDED TO ARIZONA.  THE
COURT IN REALITY ENFORCES ITS INTERPRETATION OF THE PROPOSED TRI-STATE
COMPACT AND IMPOSES ITS TERMS UPON CALIFORNIA. 

THE COURT, HOWEVER, CANNOT FIND IN THE PROPOSED TRI-STATE COMPACT
(THE ONE THAT WAS NEVER APPROVED) AN ALLOCATION OF THE TRIBUTARIES
OTHER THAN THE GILA; AND IN ORDER TO JUSTIFY THEIR ALLOCATION TO
ARIZONA IT IS FORCED TO TURN TO THE TERMS OF "PROPOSALS AND
COUNTERPROPOSALS OVER THE YEARS," INSTEAD OF TO THE LANGUAGE OF THE
PROJECT ACT.  THE RESULT IS THE COURT'S NOT THAT OF CONGRESS, WHOSE
INTENT WE HAVE BEEN CALLED UPON TO DISCOVER AND EFFECTUATE.  THE
CONGRESSIONAL INTENT IS EXPRESSED IN SEC. 4(A), WHICH PROVIDES THAT
CALIFORNIA SHALL BE LIMITED TO THE USE OF 4 400,000 ACRE-FEET "OF THE
WATERS APPORTIONED TO THE LOWER BASIN STATES BY PARAGRAPH (A) OF
ARTICLE III OF THE COLORADO RIVER COMPACT" (THE COMPACT THAT WAS
APPROVED) AND TO NOT MORE THAN HALF OF "ANY EXCESS OR SURPLUS WATERS
UNAPPORTIONED BY SAID COMPACT."  (FN1)  THESE WATERS ARE DEFINED IN THE
COLORADO RIVER COMPACT AS SYSTEM WATERS, AND NOT AS WATERS IN THE
MAINSTREAM.  YET THE COURT RESTRICTS CALIFORNIA TO MAINSTREAM WATERS. 
THAT IS THE ESSENCE OF THE DIFFERENCE BETWEEN US.

   III. 

AS I READ THE COLORADO RIVER COMPACT AND SEC. 4(A) OF THE PROJECT
ACT, CALIFORNIA IS ENTITLED TO ADD ALL USES OF SYSTEM WATERS BY LOWER
BASIN STATES IN THE TRIBUTARIES TO THOSE WATERS AVAILABLE IN THE
MAINSTREAM TO DETERMINE (1) HOW MUCH WATER SHE CAN TAKE OUT OF THE
FIRST 7,500,000 ACRE-FEET APPORTIONED TO THE LOWER BASIN STATES BY
ARTICLE IIIA), AND (2) WHETHER THERE ARE EXCESS OR SURPLUS SYSTEM
WATERS, INCLUDING ARTICLE IIIB) WATERS, OF WHICH CALIFORNIA HAS A RIGHT
TO NO MORE THAN ONE-HALF. 

I DISAGREE WITH THE COURT'S CONCLUSION THAT SEC. 4(A) OF THE PROJECT
ACT REFERS ONLY TO THE WATER FLOWING IN THE MAINSTREAM BELOW LEE
FERRY.  THE PROJECT ACT SPEAKS CLEARLY, AND ONLY, IN TERMS OF THE
WATERS APPORTIONED TO THE LOWER BASIN STATES BY ARTICLE IIIA) OF THE
COMPACT, VIZ., CALIFORNIA MAY TAKE NO MORE THAN 4,400,000 ACRE-FEET "OF
THE WATERS APPORTIONED TO THE LOWER BASIN STATES BY PARAGRAPH (A) OF
ARTICLE III OF THE COLORADO RIVER COMPACT."  ARTICLE IIIA) OF THE
COMPACT APPORTIONS "FROM THE COLORADO RIVER SYSTEM IN PERPETUITY TO THE
UPPER BASIN AND TO THE LOWER BASIN, RESPECTIVELY, THE EXCLUSIVE
BENEFICIAL CONSUMPTIVE USE OF 7,500,000 ACRE-FEET OF WATER PER ANNUM." 
THE TERM "COLORADO RIVER SYSTEM" IS DEFINED IN ARTICLE IIA) AS
INCLUDING THE ENTIRE MAINSTREAM AND THE TRIBUTARIES.  (FN2) 

THERE IS, MOREOVER, NOT A WORD IN SENATE REPORT NO. 592, 70TH CONG.,
1ST SESS., REPORTING THE PROJECT ACT, THAT INDICATES, SUGGESTS, OR
IMPLIES THAT THE COLORADO RIVER IS TO BE DIVIDED AND CALIFORNIA OR ANY
OTHER LOWER BASIN STATE RESTRICTED TO MAINSTREAM WATER.  THE REPORT
INDEED SPEAKS OF "ENTHRONING THE COLORADO RIVER COMPACT" (ID., P. 16),
WHICH EMBRACES THE ENTIRE RIVER SYSTEM IN THE UNITED STATES, NOT JUST
THE MAINSTREAM.  SEE ARTICLE IIA).  ARIZONA'S FEARS THAT CALIFORNIA
WOULD TAKE 5,400,000 ACRE-FEET FROM THE FIRST 7,500,000 ACRE-FEET, IF
THE ENTIRE SYSTEM WERE USED AS THE SOURCE, ARE, I THINK, UNFOUNDED. 
OUT OF THE FIRST 7,500,000 ACRE-FEET OF SYSTEM WATER, CALIFORNIA WOULD
BE ENTITLED ONLY TO 4,400,000 ACRE-FEET.  OUT OF THE BALANCE OR
3,100,000 ACRE-FEET, CALIFORNIA WOULD BE EXCLUDED. 

HOW MUCH OF THIS 3,100,000 ACRE-FEET SHOULD GO TO ARIZONA AND HOW MUCH
TO NEVADA, NEW MEXICO, AND UTAH CANNOT BE DETERMINED ON THIS RECORD,
THE RELEVANT FINDINGS NOT BEING MADE IN LIGHT OF THE CONSTRUCTION WHICH
HAS BEEN GIVEN TO THE PROJECT ACT, THE COMPACT, AND THE LIMITATION
ACT.  WE CANNOT TAKE AS A GUIDE THE PROVISIONS IN THE SECOND PARAGRAPH
OF SEC. 4(A) OF THE PROJECT ACT, VIZ., THE 300,000 ACRE-FEET PROPOSED
FOR NEVADA AND THE 2,800,000 ACRE-FEET PROPOSED FOR ZIRONA, BECAUSE
THOSE PROVISIONS COME INTO PLAY ONLY IF ARIZONA, CALIFORNIA, AND NEVADA
ENTER A COMPACT, WHICH TO DATE THEY HAVE NOT DONE.  THE DIVISION OF
3,100,000 ACRE-FEET SHOULD, I THINK, BE MADE AMONG ARIZONA, NEVADA, NEW
MEXICO, AND UTAH PURSUANT TO THE PRINCIPLES OF EQUITABLE
APPORTIONMENT.  NEBRASKA V. WYOMING, 325 U.S. 589. 

THE EVIDENCE IS CLEAR THAT THE DEPENDABLE LOWER BASIN SUPPLY DOES NOT
EXCEED 8,000,000 ACRE-FEET OF THE RIVER SYSTEM IS TAKEN AS A WHOLE.  BY
ARTICLE IIIB) OF THE COMPACT THE LOWER BASIN STATES CAN INCREASE THEIR
BENEFICIAL USE BY 1,000,000 ACRE-FEET, IF ADDITIONAL WATER IS
AVAILABLE.  BY SEC. 4(A) OF THE PROJECT ACT CALIFORNIA IS ENTITLED TO
NOT MORE THAN ONE-HALF OF ANY EXCESS THAT IS "UNAPPORTIONED BY SAID
COMPACT."  THE AMOUNT APPORTIONED TO THE LOWER BASIN STATES BY THE
COMPACT IS 8,500,000 ACRE-FEET, VIZ., ARTICLE IIIA) WATERS IN THE
AMOUNT OF 7,500,000 "IN PERPETUITY" PLUS ARTICLE IIIB) WATERS, WHICH
ARE HIGHLY CONTINGENT.  AFTER THE UPPER BASIN IS GIVEN ITS 7,500,000
ACRE-FEET, THE "UNAPPORTIONED" EXCESS DESCRIBED IN ARTICLE IIIB) WOULD
BE AVAILABLE.  AS NOTED, THE PRESENT PERMANENT SUPPLY FOR THE LOWER
BASIN WOULD NOT EXCEED 8,000,000 ACRE-FEET FROM THE MAINSTREAM AND THE
TRIBUTARIES.  AS I READ THE COMPACT AND THE PROJECT ACT, CALIFORNIA
WOULD GET OUT OF THE 8,000,000 ACRE-FEET 4,400,000 ACRE-FEET PLUS NOT
MORE THAN ONE-HALF OF ARTICLE IIIB) WATERS, WHICH, UNDER THE FOREGOING
ASSUMPTION, WOULD AMOUNT TO ONE-HALF OF 500,000 ACRE-FEET.  IF THERE IS
A FURTHER SURPLUS (EITHER IN THE SENSE OF ARTICLE IIIB) OR THE MORE
REMOTE SENSE IN WHICH SEC.  4(A) OF THE PROJECT ACT USES THAT WORD),
(FN3) THE DIVISION BETWEEN THE LOWER BASIN STATES SHOULD FOLLOW THE
PRINCIPLES OF EQUITABLE APPORTIONMENT WHICH WE APPLIED IN NEBRASKA V.
WYOMING, 325 U.S. 589.  IF SEC. 4(A) IS TO BE READ AS REFERRING TO
SYSTEM WATERS, CALIFORNIA'S TOTAL RIGHTS IN AVAILABLE LOWER BASIN
WATERS WOULD AMOUNT TO NOT MORE THAN 4,650,000 ACRE-FEET ANNUALLY
(4,400,000 PLUS 250,000).  SHE WOULD ALSO HAVE A RIGHT, ALBEIT HIHGLY
CONTINGENT, TO ANY ADDITIONAL ARTICLE IIIB) WATERS THAT BECOME
AVAILABLE TO THE LOWER BASIN AND TO SUCH SHARE OF THE WATERS IN BOTH
BASINS OVER 16,000,000 ACRE-FEET (7,500,000 TO UPPER BASIN, 7,500,000
TO LOWER BASIN UNDER ARTICLE IIIA), PLUS 1,000,000 TO LOWER BASIN UNDER
ARGICLE IIIB)) AS IS EQUITABLE.  NEBRASKA V. WYOMING, SUPRA. 

UNDER THE COURT'S READING OF SEC. 4(A), HOWEVER, A FAR DIFFERENT
DIVISION IS MADE.  THE COURT SAYS THAT THE LANGUAGE OF SEC. 4(A)
LIMITING CALIFORNIA TO 4,400,000 ACRE-FEET "OF THE WATERS APPORTIONED
TO THE LOWER BASIN STATES BY PARAGRAPH (A) OF ARTICLE III OF THE
COLORADO RIVER COMPACT" (7,500,000 ACRE-FEET PER ANNUM) IS JUST A
"SHORTHAND" WAY OF SAYING THAT CALIFORNIA IS LIMITED TO 4,400,000 ACRE
FEET OF THE WATER AVAILABLE IN THE MAINSTREAM.  ACCORDING TO THE COURT,
CALIFORNIA HAS NO RIGHTS IN SYSTEM WATERS, AS THIS WOULD INCLUDE RIGHTS
IN THE TRIBUTARIES, AND THE COURT HAS DECIDED THAT THE TRIBUTARIES
BELONG EXCLUSIVELY TO ARIZONA.  THUS, IF CALIFORNIA IS TO OBTAIN ANY
"EXCESS OR SURPLUS" WATERS, THE SURPLUS MUST BE FLOWING IN THE
MAINSTREAM.  THAT IS, CALIFORNIA CAN ASSERT HER RIGHT TO "SURPLUS"
WATERS ONLY WHEN THE FLOW OF THE MAINSTREAM IS MORE THAN 7,500,000 ACRE
FEET PER YEAR.  BUT IF, AS THE EVIDENCE SHOWS, THE DEPENDABLE LOWER
BASIN SUPPLY OF SYSTEM WATERS IS ONLY 8,000,000 ACRE-FEET PER ANNUM,
2,000,000 OF WHICH ARE IN THE TRIBUTARIES, CALIFORNIA CAN LOOK ONLY TO
6,000,000 ACRE-FEET IN THE MAINSTREAM.  THUS, CALIFORNIA WILL NEVER BE
ENTITLED TO ANY OF THE ADDITIONAL ARTICLE IIIB) WATERS (500,000 ACRE
FEET) IN THE LOWER BASIN SYSTEM.  THOSE "SURPLUS" WATERS WOULD
NECESSARILY BE IN THE TRIBUTARIES, AND UNDER THE COURT'S INTERPRETATION
THEY BELONG EXCLUSIVELY TO ARIZONA, SEC. 4(A) TO THE CONTRARY
NOTWITHSTANDING. 

AS A PRACTICAL MATTER, THE ONLY PLACE CALIFORNIA CAN GET SYSTEM
WATERS IS FROM THE MAINSTREAM, THERE BEING NO TRIBUTARIES OF THE
COLORADO RIVER IN CALIFORNIA.  THE QUESTION TO BE DECIDED IS WHETHER OR
NOT UNDER SEC. 4(A) OF THE PROJECT ACT CALIFORNIA CAN TAKE INTO
CONSIDERATION ARIZONA'S USES ON HER TRIBUTARIES IN DETERMINING HER
(CALIFORNIA'S) RIGHT TO DIVERT WATER FROM THE MAINSTREAM.   THE COURT
SAYS CALIFORNIA CANNOT, BECAUSE WHEN THE PROJECT ACT REFERS TO HER
RIGHTS IN SYSTEM WATERS AS THE MEASURING ROD, IT REALLY MEANS HER
RIGHTS IN MAINSTREAM WATERS.  WITH DUE RESPECT, THE MAJORITY ACHIEVES
THAT RESULT BY MISREADING THE COLORADO RIVER COMPACT, THE PROJECT ACT,
AND BY MISREADING THE LEGISLATIVE HISTORY LEADING UP TO THE CALIFORNIA
LIMITATION ACT.  AN ANALYSIS OF THE LEGISLATIVE HISTORY WILL SHOW, AS
ALREADY NOTED, THAT THE COURT'S ANALYSIS IS BUILT MAINLY UPON
STATEMENTS MADE BY THE VARIOUS SENATORS IN ARGUING THE TERMS OF A
PROPOSED TRI-STATE COMPACT THAT WAS NEVER MADE. 

IV. 

THE PROJECT ACT NEEDS THE COMPACT TO ACHIEVE A SETTLEMENT OF THE
ISSUE OF THE APPORTIONMENT OF WATER INVOLVED IN THIS CASE.  IT IS
ARGUED THAT AN APPORTIONMENT, CONSTITUTIONALLY, CAN BE ACHIEVED ONLY IN
ONE OF TWO WAYS - BY AN INTERSTATE COMPACT OR BY A DECREE OF EQUITABLE
APPORTIONMENT.  THAT PROPOSITION NEED NOT, HOWEVER, BE RESOLVED HERE,
BECAUSE (APART FROM A CONTINGENCY NOT RELEVANT HERE) THE PROJECT ACT BY
THE EXPRESS TERMS OF SEC. 4(A) IS DEPENDENT ON THE RATIFICATION OF THE
COMPACT.  (FN4)  IF THE COMPACT IS RATIFIED, IT AND THE PROJECT ACT ARE
TO SUPPLY THE MEASURE OF WATERS WHICH CALIFORNIA MAY CLAIM.  (FN5) 

THE OVERALL ACCOUNTING OF THE WATERS IS PROVIDED FOR IN ARTICLE III
OF THE COMPACT.  BY ARTICLE IIIA) "THE EXCLUSIVE BENEFICIAL CONSUMPTIVE
USE OF 7,500,000 ACRE-FEET OF WATER PER ANNUM" IS APPORTIONED "IN
PERPETUITY TO THE UPPER BASIN AND TO THE LOWER BASIN, RESPECTIVELY,"
MEANING THAT EACH BASIN GETS 7,500,000 ACRE-FEET.  BY ARTICLE IIIB) THE
LOWER BASIN IS GIVEN THE RIGHT TO INCREASE ITS BENEFICIAL CONSUMPTIVE
USE BY 1,000,000 ACRE-FEET PER ANNUM.  BY ARTICLE IIIC) ANY DEFICIENCY
OWED MEXICO "SHALL BE EQUALLY BORNE BY THE UPPER BASIN AND THE LOWER
BASIN."  THE LOWER BASIN BY DEFINITION INCLUDES CALIFORNIA.  ARTICLE
IIG).  TRIBUTARY USES IN ARIZONA DIMINISH CALIFORNIA'S RIGHT UNDER
ARTICLE IIIC) TO REQUIRE THE UPPER BASIN STATES TO SUPPLY WATER TO
SATISFY MEXICO.  CALIFORNIA IS TO BE CHARGED WITH WATER FROM THE GILA
WHEN THE ACCOUNTING IS MADE WITH MEXICO.  THAT IS, CALIFORNIA IS
PRESUMED TO ENJOY THE WATERS FROM THE LOWER BASIN TRIBUTARIES FOR
PURPOSES OF ARTICLE IIIC) OF THE COMPACT.  IT IS MANIFESTLY UNFAIR TO
CHARGE HER WITH THOSE WATERS UNDER ARTICLE IIIC) OF THE COMPACT AND TO
SAY THAT SHE IS ENTITLED TO NONE OF THEM IN COMPUTING THE 4,400,000
ACRE-FEET WHICH THE LIMITATION ACT AND THE PROJECT ACT GIVE HER OUT OF
THE WATERS OF ARTICLE IIIA) OF THE COMPACT.    SECTION 1 OF THE PROJECT
ACT AUTHORIZES THE SECRETARY OF THE INTERIOR TO CONSTRUCT AND OPERATE
THE BOULDER DAM "SUBJECT TO THE TERMS OF THE COLORADO RIVER COMPACT." 
BY SEC.  4(A) THE PROJECT ACT IS NOT TO BE OPERATIVE UNLESS AND UNTIL
THE SEVEN STATES "SHALL HAVE RATIFIED THE COLORADO RIVER COMPACT"; AND
IF THEY DO NOT, THEN "THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE
XI OF SAID COMPACT" MUST BE WAIVED.  MOREOVER, THE 4,400,000 ACRE-FEET
ALLOTTED TO CALIFORNIA BY SEC. 4(A) ARE DESCRIBED IN TERMS "OF THE
WATERS APPORTIONED TO THE LOWER BASIN STATES BY PARAGRAPH (A) OF
ARTICLE III OF THE COLORADO RIVER COMPACT."  SECTION 4(A) DESCRIBES THE
"EXCESS OR SURPLUS" WATERS IN TERMS OF THOSE "UNAPPORTIONED BY SAID
COMPACT"; AND IT MAKES ALL "USES ALWAYS TO BE SUBJECT TO THE TERMS OF
SAID COMPACT."  THE COMPACT IS, INDEED, THE UNDERPINNING OF THE PROJECT
ACT. 

THE COMPACT APPORTIONS THE WATERS "FROM THE COLORADO RIVER SYSTEM,"
WHICH BY DEFINITION INCLUDES THE MAINSTREAM AND ITS TRIBUTARIES IN THE
UNITED STATES.  AND CALIFORNIA'S LIMITATION ACT, CONTAINING THE PRECISE
LANGUAGE OF THE ALLOCATION OF WATERS IN SEC. 4(A) OF THE PROJECT ACT,
DESCRIBES THE 4,400,000 ACRE-FEET IN TERMS "OF THE WATERS APPORTIONED
TO THE LOWER BASIN STATES BY PARAGRAPH 'A' OF THE ARTICLE THREE OF THE
SAID COLORADO RIVER COMPACT."  (FN6) 

SO IT SEEMS THAT THE COMPACT IS THE MAINSPRING FROM WHICH ALL RIGHTS
FLOW.  THE 7,500,000 ACRE-FEET OF WATER APPORTIONED BY ARTICLE IIIA) OF
THE COMPACT "FROM THE COLORADO RIVER SYSTEM" TO THE LOWER BASIN IS THE
SUPPLY OUT OF WHICH CALIFORNIA'S 4,400,000 ACRE-FEET IS TO BE TAKEN. 

TO REPEAT, THE WORDS "EXCESS OR SURPLUS WATERS UNAPPORTIONED BY SAID
COMPACT," AS USED IN SEC. 4(A) OF THE PROJECT ACT, MEAN, IN MY VIEW,
ALL WATERS AVAILABLE IN THE LOWER BASIN IN EXCESS OF THE FIRST
7,500,000 ACRE-FEET COVERED BY ARTICLE IIIA) OF THE COMPACT.  (FN7) 

THE ADDITIONAL 1,000,000 ACRE-FEET DESCRIBED IN ARTICLE IIIB) WAS
ADDED TO THE COMPACT "TO COMPENSATE FOR THE WATERS OF THE GILA RIVER
AND ITS TRIBUTARIES BEING INCLUDED WITHIN THE DEFINITION OF THE
COLORADO RIVER SYSTEM."  ARIZONA V. CALIFORNIA, 292 U.S. 341, 350-351. 
AND THOUGH ARIZONA HAS LONG CLAIMED THOSE 1,000,000 ACRE-FEET AS HERS,
THAT CONSTRUCTION OF ARTICLE IIIB) OF THE COMPACT WAS REJECTED LONG
AGO.  ARIZONA V. CALIFORNIA, SUPRA, P. 358. 

V. 

WHILE THE LEGISLATIVE HISTORY OF THE CALIFORNIA LIMITATION CONTAINED
IN SEC. 4(A) LOOKS SEVERAL WAYS, MUCH OF IT IS LEGISLATIVE HISTORY MADE
WITH A VIEW TO ITS FAVORABLE USE IN THE FUTURE - A SITUATION WE HAVE
NOTICED ON OTHER OCCASIONS.  SEE SCHWEGMANN BROS. V. CALVERT CORP., 341
U.S. 384.  I THINK AN OBJECTIVE READING OF THAT HISTORY SHOWS THAT THE
TRI-STATE COMPACT AUTHORIZED BY SEC. 4(A) OF THE PROJECT ACT (A COMPACT
NEVER MADE) WAS THE ONE AND ONLY WAY VISUALIZED BY THAT ACT THROUGH
WHICH ARIZONA COULD GET THE EXCLUSIVE USE OF THE WATERS OF THE GILA
RIVER.  FOR THE SECOND PARAGRAPH OF SEC. 4(A) OF THE PROJECT ACT STATES
THAT THE TRI-STATE COMPACT, IF MADE, SHALL GIVE ARIZONA "THE EXCLUSIVE
BENEFICIAL CONSUMPTIVE USE OF THE GILA RIVER AND ITS TRIBUTARIES"
WITHIN THE BOUNDARIES OF ARIZONA.  FEARS THAT THIS APPROPRIATION WOULD
INJURE NEW MEXICO ARE NOT RELEVANT TO OUR PROBLEM, SINCE THE PROPOSED
TRI-STATE COMPACT WOULD NOT HURT NEW MEXICO UNLESS SHE AGREE TO IT. THE
LEGAL RIGHTS OF STATES NOT PARTIES TO THE COMPACT WOULD BE UNIMPAIRED,
AS ARIZONA V. CALIFORNIA, 283 U.S. 423, 462, HOLDS.  THE SAME APPLIES
TO ANY CONCERN THAT UPPER BASIN RIGHTS WOULD BE IMPERILED BY THE TRI
STATE COMPACT. 

AFTER MUCH DISCUSSION, THE AMENDMENT ALLOCATING 4,400,000 ACRE-FEET
TO CALIFORNIA BY SEC. 4(A) OF THE PROJECT ACT WAS FINALIZED BY SENATOR
PHIPPS, CHAIRMAN OF THE COMMITTEE ON IRRIGATION AND RECLAMATION, WHO
IDENTIFIED THOSE 4,400,000 ACRE-FEET AS SYSTEM WATERS.  HE MADE IT
UNMISTAKABLY CLEAR BY ADDING TO SEC. 4(A) THE WORDS "BY PARAGRAPH (A)
OF ARTICLE III" OF THE COMPACT WHICH IN HIS WORDS "SHOW THAT THAT
ALLOCATION OF WATER REFERS DIRECTLY TO THE SEVEN AND ONE-HALF MILLION
ACRE-FEET OF WATER" DESCRIBED BY ARTICLE IIIA) OF THE COMPACT.  70
CONG. REC. 459.  THAT AMENDMENT WAS AGREED TO WITHOUT A ROLL CALL.  70
CONG. REC. 473.  PRIOR TO THAT TIME SENATOR PHIPPS HAD PROPOSED THAT
CALIFORNIA RECEIVE 4,600,000 ACRE-FEET.  ID., AT 335. 

THE FOLLOWING COLLOQUY TOOK PLACE: 

"MR. HAYDEN.  UNDER THE CIRCUMSTANCES I SHOULD LIKE TO INQUIRE OF THE
SENATOR FROM COLORADO HOW HE ARRIVES AT THE FIGURE 4,600,000 ACRE-FEET
OF WATER INSTEAD OF 4,200,000 ACRE-FEET AS PROPOSED IN MY AMENDMENT? 

"MR. PHIPPS.  IT WAS JUST ABOUT AS DIFFICULT FOR ME TO ARRIVE AT
4,600,000 ACRE-FEET AS IT WOULD HAVE BEEN TO ARRIVE AT 4,200,000 ACRE
FEET.  THE ARGUMENTS PRO AND CON HAVE BEEN DEBATED IN THE COMMITTEE FOR
QUITE A PERIOD OF TIME.  THE CONTENTIONS MADE BY THE SENATORS FROM
ARIZONA HAVE NOT BEEN CONCLUSIVE TO MY MIND.  FOR INSTANCE, I WILL
REFER TO THE FACT THAT ARIZONA DESIRES TO ELIMINATE ENTIRELY ALL WATERS
ARISING IN THE WATERSHED AND FLOWING OUT OF THE GILA RIVER. 

"MR. HAYDEN.  THERE IS NOTHING OF THAT KIND IN THE SENATOR'S
AMENDMENT. 

"MR. PHIPPS.  THERE IS NOTHING OF THAT KIND IN THE SENATOR'S
AMENDMENT, BUT THAT HAS BEEN ONE OF THE ARGUMENTS ADVANCED BY
CALIFORNIA AS BEING AN OFFSET TO THE AMOUNT TO WHICH ARIZONA WOULD TRY
TO LIMIT CALIFORNIA. 

"MR. HAYDEN.  IF THE SENATOR THOUGHT THERE WAS FORCE IN THAT
ARGUMENT, I SHOULD THINK THAT HE WOULD HAVE INCLUDED IN HIS AMENDMENT A
PROVISION ELIMINATING THE WATERS OF THE GILA RIVER AND ITS TRIBUTARIES,
AS MY AMENDMENT DOES. 

"MR. PHIPPS.  I DO NOT CONSIDER IT NECESSARY BECAUSE THE BILL ITSELF,
NOT ONLY THE PRESENT SUBSTITUTE MEASURE BY EVERY OTHER BILL ON THE
SUBJECT, TIES THIS QUESTION UP WITH THE COLORADO RIVER COMPACT. 

"MR. HAYDEN.  MY AMENDMENT DOES THAT. 

"MR. PHIPPS.  YES; THAT IS TRUE, BUT UNDER ESTIMATES OF ENGINEERS -
ONE I HAPPEN TO RECALL BEING MADE, I THINK, BY MR. LA RUE -
NOTWITHSTANDING ALL OF THE PURPOSES TO WHICH WATER OF THE GILA MAY BE
PUT BY THE STATE OF ARIZONA, AT LEAST 1,000,000 ACRE-FEET WILL RETURN
TO THE MAIN STREAM.  YET ARIZONA CONTENDS THAT THAT WATER IS NOT
AVAILABLE TO CALIFORNIA; WHEREAS TO-DAY AND FOR YEARS PAST AT LEAST
SOME OF THE WATERS FROM THE GILA RIVER HAVE COME INTO THE CANAL WHICH
IS NOW SUPPLYING THE IMPERIAL VALLEY. 

"IT IS NOT A DEFINITE FIXED FACT THAT WITH THE ENACTMENT OF THIS
PROPOSED LEGISLATION THE ALL-AMERICAN CANAL IS GOING TO BE BUILT WITHIN
THE PERIOD OF SEVEN YEARS; AS A MATTER OF FACT, IT MAY NOT BE BUILT AT
ALL; WE DO NOT KNOW AS TO THAT.  BUT I DO NOT THINK THAT THE WATER FROM
THE GILA RIVER, ONE OF THE MAIN TRIBUTARIES OF THE COLORADO, SHOULD BE
ELIMINATED FROM CONSIDERATION.  I THINK THAT CALIFORNIA IS ENTITLED TO
HAVE THAT COUNTED IN AS BEING PART OF THE BASIC SUPPLY OF WATER." 

IT IS PLAIN FROM THIS COLLOQUY THAT SENATOR PHIPPS THOUGHT THAT HIS
AMENDMENT, LIMITING THE AMOUNT CALIFORNIA CAN CLAIM, "TIES THIS
QUESTION UP WITH THE COLORADO RIVER COMPACT" AND THAT THE GILA RIVER
(BELOW LAKE MEAD) SHOULD BE "COUNTED IN AS BEING PART OF THE BASIC
SUPPLY OF WATER" WHICH CALIFORNIA IS ENTITLED TO HAVE INCLUDED IN THE
COMPUTATIONS FOR THE LOWER BASIN STATES. 

THE WORD OF SENATOR PHIPPS, WHO WAS CHAIRMAN OF THE COMMITTEE AND WHO
OFFERED THE AMENDMENT, IS TO BE TAKEN AS AGAINST THOSE IN OPPOSITION OR
THOSE WHO MIGHT BE MAKING LEGISLATIVE HISTORY TO SERVE THEIR ENDS. 
SCHWEGMANN BROS. V. CALVERT CORP., SUPRA, PP.  394-395:  "THE FEARS AND
DOUBTS OF THE OPPOSITION ARE NO AUTHORITATIVE GUIDE TO THE CONSTRUCTION
OF LEGISLATION.  IT IS THE SPONSORS THAT WE LOOK TO WHEN THE MEANING OF
THE STATUTORY WORDS IS IN DOUBT." 

IF CALIFORNIA WERE RESTRICTED BY THE PROJECT ACT TO THE USE OF
4,400,000 ACRE-FEET OUT OF THE MAINSTREAM, IT IS DIFFICULT TO BELIEVE
THAT SENATOR ASHURST OF ARIZONA WOULD HAVE EXPRESSED HIS BITTER
MINORITY VIEWS IN THE REPORT ON THE PROJECT ACT.  S. REP. NO. 592, 70TH
CONG., 1ST SESS., PT. 2.  HE SAID THAT THE BILL "SEDULOUSLY AND
INTENTIONALLY PROPOSES TO SEVER AIRZONA'S JUGULAR VEIN" (ID., P. 3),
THAT "THE AMOUNT OF WATER APPORTIONED TO CALIFORNIA  ...  IS NOT
WARRANTED IN EQUITY, LAW, JUSTICE, OR MORALS" (ID., P. 4), THAT THE
BILL IS "A RECKLESS AND RELENTLESS ASSAULT UPON ARIZONA."  ID., P. 38. 
HE APPARENTLY NEVER IMAGINED THAT THE PROPOSED LEGISLATION WOULD
CONFINE CALIFORNIA TO MAINSTREAM WATER.  HE INDEED CHARGED THAT THE
BILL "AUTHORIZES CALIFORNIA, WHICH COMPRISES ONLY 2 1/2 PER CENT OF THE
COLORADO RIVER BASIN AND CONTRIBUTES NO WATER, TO APPROPRIATE  ...
OVER 38 PER CENT OF THE ESTIMATED CONSTANT WATER SUPPLY AVAILABLE IN
THE MAIN COLORADO RIVER FOR ALL SEVEN STATES IN THE BASIN AND FOR
MEXICO."  ID., P. 5. 

LIKE SENATOR ASHURST AND LIKE THE CHAIRMAN OF THE SENATE COMMITTEE,
SENATOR PHIPPS, I TOO READ THE PROJECT ACT TO SPEAK IN TERMS OF THE
ENTIRE COLORADO RIVER SYSTEM IN THE UNITED STATES. 

FN1  THE RELEVANT PROVISIONS OF THE PROJECT ACT, THE CALIFORNIA
LIMITATION ACT, AND THE COLORADO RIVER COMPACT ARE SET FORTH IN THE
APPENDIX, POST, P. 643. 

FN2  SEE THE APPENDIX, PP. 645-646, FOR THE RELEVANT PORTIONS OF
ARTICLE III. 

FN3  IT IS SAID THAT THE SEC. 4(A) LANGUAGE REFERRING TO SURPLUS OR
EXCESS WATERS, ONE-HALF OF WHICH IS TO GO TO CALIFORNIA, THE OTHER TO
ARIZONA, IS MEANINGLESS IF READ LITERALLY.  THAT TURNS ON THE MEANING
OF THE WORDS "EXCESS OR SURPLUS WATERS UNAPPORTIONED" BY THE COMPACT. 
THEY MEAN, IT IS SAID, ALL WATERS UNAPPORTIONED BY ARTICLE IIIA) AND
(B), BECAUSE ARTICLE IIIC) DEFINES OR SPEAKS OF SURPLUS IN SUCH MANNER
AS TO INDICATE THAT SURPLUS IS ONLY THAT WATER OVER AND ABOVE ARTICLE
IIIA) AND (B) WATER.  THIS IS TRUE, AT LEAST FOR THE LIMITED PURPOSE OF
ARTICLE IIIC).  FROM THAT PREMISE IT IS REASONED THAT SEC. 4(A),
LITERALLY CONSTRUED, WOULD ALLOW ARIZONA AND CALIFORNIA TO SPLIT
EQUALLY ALL WATERS OVER 16,000,000 ACRE-FEET, THAT IS AFTER 7,500,000
ACRE-FEET WENT TO EACH OF THE BASINS, AND AFTER THE LOWER BASIN
RECEIVED AN ADDITIONAL 1,000,000 ACRE-FEET UNDER THE PROVISIONS OF
ARTICLE IIIB).  IF THAT IS TRUE AND IF CALIFORNIA AND ARIZONA WERE
ALLOWED TO DIVIDE UP THE REST, THE UPPER BASIN STATES WOULD FOREVER BE
LIMITED TO THEIR INITIAL 7,500,000 ACRE-FEET, SOMETHING NOT
CONTEMPLATED BY ARTICLE IIIF), WHICH SPECIFICALLY PROVIDES FOR
APPORTIONMENT OF WATERS IN EXCESS OF 16,000,000 BETWEEN THE UPPER AND
LOWER BASINS.  THUS, IT IS ARGUED THAT THE WORDS "EXCESS OR SURPLUS
WATERS" AS USED IN SEC. 4(A) ARE MEANINGLESS AND IN HOPELESS CONFLICT
WITH THE TERMS OF THE COMPACT IF READ LITERALLY. 

THIS INTERPRETATION IS ILL-FOUNDED.  THE FIRST PARAGRAPH OF SEC. 4(A)
CONTAINS ONLY A LIMITATION; IT APPORTIONS NO WATER.  THE TRI-STATE
COMPACT AUTHORIZED BY THE SECOND PARAGRAPH OF SEC. 4(A) HAS NEVER BEEN
MADE.  BUT, EVEN IF IT HAD BEEN MADE, IT COULD AFFECT ONLY THE RIGHTS
OF ITS SIGNATORIES VIS-A-VIS EACH OTHER.  FOR SEC. 4(A) EXPLICITLY
PROVIDES "THAT ALL OF THE PROVISIONS OF SAID TRI-STATE AGREEMENT SHALL
BE SUBJECT IN ALL PARTICULARS TO THE PROVISIONS OF THE COLORADO RIVER
COMPACT." 

THE WORDS "EXCESS OR SURPLUS WATERS UNAPPORTIONED BY SAID COMPACT"
MEAN, I THINK, ARTICLE IIIB) WATERS PLUS ALL WATERS IN THE ENTIRE
SYSTEM IN EXCESS OF 16,000,000 ACRE-FEET.  NOT ONLY DOES THIS
INTERPRETATION ALLOW THE PROJECT ACT AND THE COLORADO RIVER COMPACT TO
BE CONSTRUED AS A HARMONIOUS WHOLE, BUT IT IS ALSO COMPELLED BY THE
LEGISLATIVE HISTORY.  SEE 70 CONG. REC. 459-460. 

FN4  UNDER SEC. 4(A) OF THE PROJECT ACT IT IS PROVIDED THAT IF ALL
SEVEN STATES FAIL TO RATIFY THE COMPACT IN SIX MONTHS (WHICH IN FACT
THEY DID FAIL TO DO), THE PROJECT ACT SHALL NOT TAKE EFFECT UNTIL SIX
OF THE STATES, INCLUDING CALIFORNIA, RATIFY THE COMPACT AND WAIVE THE
PROVISIONS OF ARTICLE XI OF THE COMPACT (WHICH REQUIRED APPROVAL OF ALL
SEVEN STATES) AND THE PRESIDENT HAS SO DECLARED BY PUBLIC
PROCLAMATION.  A FURTHER CONDITION WAS THE PASSAGE OF CALIFORNIA'S
LIMITATION ACT.  THE PRESIDENTIAL PROCLAMATION IS DATED JUNE 25, 1929. 
46 STAT. 3000; AND CALIFORNIA'S LIMITATION ACT WAS APPROVED MARCH 4,
1929, AND BECAME EFFECTIVE AUGUST 14, 1929. 

FN5  THE COLORADO RIVER COMPACT IS REFERRED TO MANY TIMES IN THE
PROJECT ACT - SEC. 1, SEC. 4(A), SEC. 6, SEC. 8, SEC. 12, SEC. 13, SEC.
18, AND SEC. 19. 

BY SEC. 18 THE RIGHTS OF THE STATES TO WATERS WITHIN THEIR BORDERS
ARE NOT INTERFERED WITH "EXCEPT AS MODIFIED BY THE COLORADO RIVER
COMPACT OR OTHER INTERSTATE AGREEMENT." 

BY SEC. 8(A) "ALL USERS AND APPROPRIATORS" OF WATER ARE "SUBJECT TO
AND CONTROLLED BY SAID COLORADO RIVER COMPACT  ...  ANYTHING IN THIS
ACT TO THE CONTRARY NOTWITHSTANDING  ...  ." 

FN6  IT WAS INDICATED IN ARIZONA V. CALIFORNIA, 292 U.S. 341, 357,
THAT THE LIMITATION ACT INCORPORATES THE COMPACT: 

"IT MAY BE TRUE THAT THE BOULDER CANYON PROJECT ACT LEAVES IN DOUBT
THE APPORTIONMENT AMONG THE STATES OF THE LOWER BASIN OF THE WATERS TO
WHICH THE LOWER BASIN IS ENTITLED UNDER ARTICLE IIIB).  BUT THE ACT
DOES NOT PURPORT TO APPORTION AMONG THE STATES OF THE LOWER BASIN THE
WATERS TO WHICH THE LOWER BASIN IS ENTITLED UNDER THE COMPACT.  THE ACT
MERELY PLACES LIMITS ON CALIFORNIA'S USE OF WATERS UNDER ARTICLE IIIA)
AND OF SURPLUS WATERS; AND IT IS 'SUCH' USES WHICH ARE 'SUBJECT TO THE
TERMS OF SAID COMPACT.'" 

FN7  SEE NOTE 3, SUPRA.

            APPENDIX TO OPINION OF

       MR. JUSTICE DOUGLAS. 


"THIS ACT SHALL NOT TAKE EFFECT AND NO AUTHORITY SHALL BE EXERCISED
HEREUNDER AND NO WORK SHALL BE BEGUN AND NO MONEYS EXPENDED ON OR IN
CONNECTION WITH THE WORDS OR STRUCTURES PROVIDED FOR IN THIS ACT, AND
NO WATER RIGHTS SHALL BE CLAIMED OR INITIATED HEREUNDER, AN NO STEPS
SHALL BE TAKEN BY THE UNITED STATES OR BY OTHERS TO INITIATE OR PERFECT
ANY CLAIMS TO THE USE OF WATER PERTINENT TO SUCH WORKS OR STRUCTURES
UNLESS AND UNTIL (1) THE STATES OF ARIZONA, CALIFORNIA, COLORADO,
NEVADA, NEW MEXICO, UTAH, AND WYOMING SHALL HAVE RATIFIED THE COLOARDO
RIVER COMPACT, MENTIONED IN SECTION 13 HEREOF, AND THE PRESIDENT BY
PUBLIC PROCLAMATION SHALL HAVE SO DECLARED, OR (2) IF SAID STATES FAIL
TO RATIFY THE SAID COMPACT WITHIN SIX MONTHS FROM THE DATE OF THE
PASSAGE OF THIS ACT THEN, UNTIL SIX OF SAID STATES, INCLUDING THE STATE
OF CALIFORNIA, SHALL RATIFY SAID COMPACT AND SHALL CONSENT TO WAIVE THE
PROVISION OF THE FIRST PARAGRAPH OF ARTICLE XI OF SAID COMPACT, WHICH
MAKES THE SAME BINDING AND OBLIGATORY ONLY WHEN APPROVED BY EACH OF THE
SEVEN STATES SIGNATORY THERETO, AND SHALL HAVE APPROVED SAID COMPACT
WITHOUT CONDITIONS, SAVE THAT OF SUCH SIX-STATE APPROVAL, AND THE
PRESIDENT BY PUBLIC PROCLAMATION SHALL HAVE SO DECLARED, AND, FURTHER,
UNTIL THE STATE OF CALIFORNIA, BY ACT OF ITS LEGISLATURE, SHALL AGREE
IRREVOCABLY AND UNCONDITIONALLY WITH THE UNITED STATES AND FOR THE
BENEFIT OF THE STATES OF ARIZONA, COLORADO, NEVADA, NEW MEXICO, UTAH,
AND WYOMING, AS AN EXPRESS COVENANT AND IN CONSIDERATION OF THE PASSAGE
OF THIS ACT, THAT THE AGRREGATE ANNUAL CONSUMPTIVE USE (DIVERSIONS LESS
RETURNS TO THE RIVER) OF WATER OF AND FROM THE COLORADO RIVER FOR USE
IN THE STATE OF CALIFORNIA, INCLUDING ALL USES UNDER CONTRACTS MADE
UNDER THE PROVISIONS OF THIS ACT AND ALL WATER NECESSARY FOR THE SUPPLY
OF ANY RIGHTS WHICH MAY NOW EXIST, SHALL NOT EXCEED FOUR MILLION FOUR
HUNDRED THOUSAND ACRE-FEET OF THE WATERS APPORTIONED TO THE LOWER BASIN
STATES BY PARAGRAPH (A) OF ARTICLE III OF THE COLORADO RIVER COMPACT,
PLUS NOT MORE THAN ONE-HALF OF ANY EXCESS OR SURPLUS WATERS
UNAPPORTIONED BY SAID COMPACT, SUCH USES ALWAYS TO BE SUBJECT TO THE
TERMS OF SAID COMPACT. 

"THE STATES OF ARIZONA, CALIFORNIA AND NEVADA ARE AUTHORIZED TO ENTER
INTO AN AGREEMENT WHICH SHALL PROVIDE (1) THAT OF THE 7,500,000 ACRE
FEET ANNUALLY APPORTIONED TO THE LOWER BASIN BY PARAGRAPH (A) OF
ARTICLE III OF THE COLORADO RIVER COMPACT, THERE SHALL BE APPORTIONED
TO THE STATE OF NEVADA 300,000 ACRE-FEET AND TO THE STATE OF ARIZONA
2,800,000 ACRE-FEET FOR EXCLUSIVE BENEFICIAL CONSUMPTIVE USE IN
PERPETUITY, AND (2) THAT THE STATE OF ARIZONA MAY ANNUALLY USE ONE-HALF
OF THE EXCESS OR SURPLUS WATERS UNAPPORTIONED BY THE COLORADO RIVER
COMPACT, AND (3) THAT THE STATE OF ARIZONA SHALL HAVE THE EXCLUSIVE
BENEFICIAL CONSUMPTIVE USE OF THE GILA RIVER AND ITS TRIBUTARIES WITHIN
THE BOUNDARIES OF SAID STATE, AND (4) THAT THE WATERS OF THE GILA RIVER
AND ITS TRIBUTARIES, EXCEPT RETURN FLOW AFTER THE SAME ENTERS THE
COLORADO RIVER, SHALL NEVER BE SUBJECT TO ANY DIMINUTION WHATEVER BY
ANY ALLOWANCE OF WATER WHICH MAY BE MADE BY TREATY OR OTHERWISE TO THE
UNITED STATES OF MEXICO BUT IF, AS PROVIDED IN PARAGRAPH (C) OF ARTICLE
III OF THE COLORADO RIVER COMPACT, IT SHALL BECOME NECESSARY TO SUPPLY
WATER TO THE UNITED STATES OF MEXICO FROM WATERS OVER AND ABOVE THE
QUANTITIES WHICH ARE SURPLUS AS DEFINED BY SAID COMPACT, THEN THE STATE
OF CALIFORNIA SHALL AND WILL MUTUALLY AGREE WITH THE STATE OF ARIZONA
TO SUPPLY, OUT OF THE MAIN STREAM OF THE COLORADO RIVER, ONE-HALF OF
ANY DEFICIENCY WHICH MUST BE SUPPLIED TO MEXICO BY THE LOWER BASIN, AND
...  (6) THAT ALL OF THE PROVISIONS OF SAID TRI-STATE AGREEMENT SHALL
BE SUBJECT IN ALL PARTICULARS TO THE PROVISIONS OF THE COLORADO RIVER
COMPACT  ...  ." 

BY SEC. 1 OF THE CALIFORNIA LIMITATION ACT IT WAS PROVIDED THAT WHEN
THE SEVEN STATES APPROVED THE COMPACT AND ITS APPROVAL IS PROCLAIMED BY
THE PRESIDENT THAT: 

"  ...  THE STATE OF CALIFORNIA AS OF THE DATE OF SUCH PROCLAMATION
AGREES IRREVOCABLY AND UNCONDITIONALLY WITH THE UNITED STATES AND FOR
THE BENEFIT OF THE STATES OF ARIZONA, COLORADO, NEVADA, NEW MEXICO,
UTAH AND WYOMING AS AN EXPRESS CONVENANT AND IN CONSIDERATION OF THE
PASSAGE OF THE SAID 'BOULDER CANYON PROJECT ACT' THAT THE AGGREGATE
ANNUAL CONSUMPTIVE USE (DIVERSIONS LESS RETURNS TO THE RIVER) OF WATER
OF AND FROM THE COLORADO RIVER FOR USE IN THE STATE OF CALIFORNIA
INCLUDING ALL USES UNDER CONTRACTS MADE UNDER THE PROVISIONS OF SAID
'BOULDER CANYON PROJECT ACT,' AND ALL WATER NECESSARY FOR THE SUPPLY OF
ANY RIGHTS WHICH MAY NOW EXIST, SHALL NOT EXCEED FOR MILLION FOUR
HUNDRED THOUSAND ACRE-FEET OF THE WATERS APPORTIONED TO THE LOWER BASIN
STATES BY PARAGRAPH 'A' OF ARTICLE THREE OF THE SAID COLORADO RIVER
COMPACT, PLUS NOT MORE THAN ONE-HALF OF ANY EXCESS OR SURPLUS WATERS
UNAPPORTIONED BY SAID COMPACT, SUCH USES ALWAYS TO BE SUBJECT TO THE
TERMS OF SAID COMPACT." 

ARTICLE III OF THE COMPACT PROVIDES IN RELEVANT PART: 

"(A) THERE IS HEREBY APPORTIONED FROM THE COLORADO RIVER SYSTEM IN
PERPETUITY TO THE UPPER BASIN AND TO THE LOWER BASIN, RESPECTIVELY, THE
EXCLUSIVE BENEFICIAL CONSUMPTIVE USE OF 7,500,000 ACRE-FEET OF WATER
PER ANNUM, WHICH SHALL INCLUDE ALL WATER NECESSARY FOR THE SUPPLY OF
ANY RIGHTS WHICH MAY NOW EXIST. 

"(B)  IN ADDITION TO THE APPORTIONMENT IN PARAGRAPH (A), THE LOWER
BASIN IS HEREBY GIVEN THE RIGHT TO INCREASE ITS BENEFICIAL CONSUMPTIVE
USE OF SUCH WATERS BY ONE MILLION ACRE-FEET PER ANNUM. 

"(C)  IF, AS A MATTER OF INTERNATIONAL COMITY, THE UNITED STATES OF
AMERICA SHALL HEREAFTER RECOGNIZE IN THE UNITED STATES OF MEXICO ANY
RIGHT TO THE USE OF ANY WATERS OF THE COLORADO RIVER SYSTEM, SUCH
WATERS SHALL BE SUPPLIED FIRST FROM THE WATERS WHICH ARE SURPLUS OVER
AND ABOVE THE AGGREGATE OF THE QUANTITIES SPECIFIED IN PARAGRAPHS (A)
AND (B); AND IF SUCH SURPLUS SHALL PROVE INSUFFICIENT FOR THIS PURPOSE,
THEN, THE BURDEN OF SUCH DEFICIENCY SHALL BE EQUALLY BORNE BY THE UPPER
BASIN AND THE LOWER BASIN, AND WHENEVER NECESSARY THE STATES OF THE
UPPER DIVISION SHALL DELIVER AT LEE FERRY WATER TO SUPPLY ONE-HALF OF
THE DEFICIENCY SO RECOGNIZED IN ADDITION TO THAT PROVIDED IN PARAGRAPH
(D). 

"(D)  THE STATES OF THE UPPER DIVISION WILL NOT CAUSE THE FLOW OF THE
RIVER AT LEE
..END :







WHEELDIN V. WHEELER 373 U.S. 647 


NO. 493.  ARGUED APRIL 23, 1963.  - DECIDED JUNE 3, 1963.  - 302 F.2D
36, AFFIRMED. 


BASING JURISDICTION ON 28 U.S.C. SEC. 1331 AND NOT ALLEGING DIVERSITY
OF CITIZENSHIP, PETITIONER DAWSON BROUGHT SUIT IN A FEDERAL DISTRICT
COURT AGAINST RESPONDENT, AN INVESTIGATOR FOR THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES.  PETITIONER ALLEGED THAT, WITHOUT AUTHORIZATION
FROM THE COMMITTEE BUT ACTING UNDER COLOR OF HIS OFFICE, RESPONDENT HAD
CAUSED A SUBPOENA TO APPEAR AS A WITNESS BEFORE THE COMMITTEE TO BE
SERVED ON PETITIONER AT HIS PLACE OF WORK AND THAT THIS CAUSED HIM TO
LOSE HIS JOB AND OTHERWISE INJURED HIM.  HE SOUGHT DAMAGES AND
DECLARATORY AND INJUNCTIVE RELIEF.  HIS RELIANCE WAS ON A CLAIM OF
VIOLATION OF THE FOURTH AMENDMENT AND OF A STATUTE AUTHORIZING ISSUANCE
OF SUBPOENAS; BUT, SO FAR AS THE COMPLAINT DISCLOSED, HE WAS NEITHER
ARRESTED NOR DETAINED PURSUANT TO THE SUBPOENA, HE DID NOT RESPOND TO
THE SUBPOENA, NOR WAS THE SUBPOENA USED TO CITE HIM FOR CONTEMPT. 
HELD: 

1.  ON THE FACE OF THE COMPLAINT, THE FEDERAL COURT HAD
JURISDICTION.  P. 649. 

2.  THE FACTS ALLEGED AND CONCEDED DO NOT ESTABLISH A VIOLATION OF
THE FOURTH AMENDMENT; THE PROVISIONS OF THE CIVIL RIGHTS ACT ARE
INAPPLICABLE; CONGRESS HAS NOT CREATED A CAUSE OF ACTION FOR ABUSE OF
THE SUBPOENA POWER BY A FEDERAL OFFICER, AT LEAST WHERE THE SUBPOENA
WAS NEVER GIVEN EFFECT; AND THE COMPLAINT FAILED TO STATE A FEDERAL
CAUSE OF ACTION.  PP. 649-652. 

WHEELDIN ET AL. V. WHEELER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER DAWSON (FN1) WAS SERVED WITH A SUBPOENA TO APPEAR BEFORE
THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE.  HE ALLEGES THAT THE
SUBPOENA WAS SIGNED IN BLANK BY THE COMMITTEE CHAIRMAN AND THAT
RESPONDENT WHEELER, AN INVESTIGATOR FOR THE COMMITTEE, FILLED IN
DAWSON'S NAME WITHOUT AUTHORIZATION OF THE COMMITTEE.  WE READ THE
COMPLAINT, AS DOES THE SOLICITOR GENERAL, MOST FAVORABLY TO DAWSON AND
CONCLUDE THAT THE COMPLAINT ALLEGES THAT NO MEMBER OF THE COMMITTEE
EVEN ATTEMPTED TO DELEGATE THE COMMITTEE'S SUBPOENA POWER TO WHEELER. 
THE COMPLAINT ALSO ALLEGES THAT WHEELER INTENDED TO SUBJECT PETITIONER,
WHEN HE APPEARED AS A WITNESS BEFORE THE COMMITTEE, TO PUBLIC SHAME,
DISGRACE, RIDICULE, STIGMA, SCORN AND OBLOQUY, AND FALSELY PLACE UPON
HIM THE STAIN OF DISLOYALTY WITHOUT ANY OPPORTUNITY OF FAIR DEFENSE, TO
PETITIONER'S IRREPARABLE INJURY.  THE COMPLAINT ALLEGES NOT ONLY THE
LACK OF AUTHORITY OF RESPONDENT WHEELER TO FILL IN THE BLANK SUBPOENA
BUT ALSO THE UNCONSTITUTIONALITY OF THE HOUSE RESOLUTION AND THE ACT OF
CONGRESS, 60 STAT. 828, AUTHORIZING THE COMMITTEE TO ACT AND TO
SUBPOENA WITNESSES.  THE COMPLAINT ALLEGES THAT THE MERE SERVICE OF THE
SUBPOENA ON DAWSON COST HIM HIS JOB AND THAT WHEELER CAUSED SERVICE TO
BE MADE WHILE PETITIONER WAS AT WORK KNOWING THAT LOSS OF EMPLOYMENT
WOULD RESULT.  IT PRAYS THAT THE SUBPOENA BE DECLARED VOID AND OF NO
FORCE OR EFFECT, AND ASKS FOR DAMAGES AND FOR AN INJUNCTION. 

THE DISTRICT COURT DENIED DECLARATORY AND INJUNCTIVE RELIEF, HOLDING
THAT SINCE DAWSON'S APPEARANCE DID NOT SEEM IMMINENT THE CASE WAS NOT
RIPE FOR EQUITABLE INTERVENTION AND THAT THE MERE APPREHENSION THAT A
FEDERAL RIGHT MIGHT BE INFRINGED AT SOME FUTURE TIME DID NOT WARRANT
DECLARATORY OR INJUNCTIVE RELIEF AT THE PRESENT TIME.  THE DISTRICT
COURT HELD THAT NO FEDERAL CAUSE OF ACTION WAS STATED AS RESPECTS
DAMAGES AND DISMISSED THE COMPLAINT FOR LACK OF JURISDICTION OVER THE
SUBJECT MATTER.  THE COURT OF APPEALS HELD THAT DECLARATORY RELIEF,
BEING WITHIN THE DISTRICT COURT'S DISCRETION, WAS PROPERLY DENIED AND
THAT THE CLAIM FOR INJUNCTIVE RELIEF HAD BECOME MOOT.  IT HELD,
HOWEVER, THAT "IN THE SENSE OF BELL V. HOOD, 327 U.S. 678," THERE WAS
"JURISDICTION TO ENTERTAIN THE CLAIM FOR MONEY DAMAGES," AND TO THAT
EXTENT REVERSED.  280 F.2D 293.  ON REMAND THE DISTRICT COURT DISMISSED
THE ACTION WITHOUT OPINION.  THE COURT OF APPEALS AFFIRMED.  302 F.2D
36.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED.  371 U.S. 812.  THE BASIC QUESTION PRESENTED IS WHETHER A
FEDERAL CLAIM FOR DAMAGES IS STATED. 

WE AGREE WITH THE COURT OF APPEALS IN ITS FIRST OPINION (280 F.2D
293) THAT ON THE FACE OF THE COMPLAINT THE FEDERAL COURT HAD
JURISDICTION.  AS WE STATED IN BELL V. HOOD, 327 U.S. 678, 685, "THE
RIGHT OF THE PETITIONERS TO RECOVER UNDER THEIR COMPLAINT WILL BE
SUSTAINED IF THE CONSTITUTION AND LAWS OF THE UNITED STATES ARE GIVEN
ONE CONSTRUCTION AND WILL BE DEFEATED IF THEY ARE GIVEN ANOTHER.   FOR
THIS REASON THE DISTRICT COURT HAS JURISDICTION."  AND SEE BOCK V.
PERKINS, 139 U.S. 628, 630. 

BUT ON THE UNDISPUTED FACTS, AS THEY APPEAR ON ARGUMENT OF THE CASE,
NO FEDERAL CAUSE OF ACTION CAN BE MADE OUT.  DAWSON'S MAIN RELIANCE IS
ON THE FOURTH AMENDMENT, WHICH PROTECTS A PERSON AGAINST UNREASONABLE
SEARCHES AND SEIZURES.  ITS VIOLATION, HE CONTENDS, OCCURRED WHEN AN
UNAUTHORIZED SUBPOENA WAS SERVED ON HIM.  BUT THERE WAS NEITHER A
SEARCH NOR A SEIZURE OF HIM.  HE WAS NEITHER ARRESTED NOR DETAINED
PURSUANT TO ANY SUBPOENA; NOR, SO FAR AS THE COMPLAINT DISCLOSES, DID
HE RESPOND TO THE SUBPOENA AND EITHER TESTIFY OR REFUSE TO TESTIFY; NOR
WAS THE SUBPOENA USED TO CITE HIM FOR CONTEMPT.  CF. WILLIAMS V. UNITED
STATES, 341 U.S. 97.  IN SHORT, THE FACTS ALLEGED DO NOT ESTABLISH A
VIOLATION OF THE FOURTH AMENDMENT.  AND THE PROVISIONS OF THE CIVIL
RIGHTS ACT ARE CLEARLY INAPPLICABLE TO THIS KIND OF CASE.  SEE R.S.
SECS. 1979, 1980, 42 U.S.C. SECS. 1983, 1985; (FN2) TENNEY V.
BRANDHOVE, 341 U.S. 367; MONROE V. PAPE, 365 U.S. 167. 

APART FROM ANY RIGHTS WHICH MAY ARISE UNDER THE FOURTH AMENDMENT,
CONGRESS HAS NOT CREATED A CAUSE OF ACTION FOR ABUSE OF THE SUBPOENA
POWER BY A FEDERAL OFFICER, AT LEAST WHERE THE SUBPOENA WAS NEVER GIVEN
COERCIVE EFFECT.  NO CLAIM IS MADE THAT THE FEDERAL TORT CLAIMS ACT
REACHES THAT FAR.  (FN3)  CF. HATAHLEY V. UNITED STATES, 351 U.S. 173. 
THERE IS MUCH DISCUSSION IN THE BRIEFS OF BARR V. MATTEO, 360 U.S.
564.  BUT THAT WAS A LIBEL ACTION BROUGHT AGAINST A FEDERAL OFFICIAL IN
THE DISTRICT OF COLUMBIA.  AND THE IMMUNITY DOCTRINE OF THAT CASE AND
HOWARD V. LYONS, 360 U.S. 593, UPON WHICH THE COURT OF APPEALS RESTED,
IS NOT RELEVANT HERE, FOR, AS THE SOLICITOR GENERAL HAS CONCEDED, UNDER
THE ALLEGATIONS OF THE COMPLAINT RESPONDENT WHEELER WAS NOT ACTING
SUFFICIENTLY WITHIN THE SCOPE OF HIS AUTHORITY TO BRING THE DOCTRINE
INTO PLAY. 

IT IS ARGUED THAT THE STATUTE GOVERNING THE ISSUANCE OF SUBPOENAS
(FN4) NOT HAVING BEEN COMPLIED WITH, A CAUSE OF ACTION FOR DAMAGES
"ARISES" UNDER IT WITHIN THE MEANING OF 28 U.S.C. SEC. 1331.  AS
RESPECTS THE CREATION BY THE FEDERAL COURTS OF COMMON-LAW RIGHTS, IT IS
PERHAPS NEEDLESS TO STATE THAT WE ARE NOT IN THE FREE-WHEELING DAYS
ANTE-DATING ERIE R. CO. V. TOMPKINS, 304 U.S. 64.  THE INSTANCES WHERE
WE HAVE CREATED FEDERAL COMMON LAW ARE FEW AND RESTRICTED.  IN
CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363, WE CREATED FEDERAL
COMMON LAW TO GOVERN TRANSACTIONS IN THE COMMERCIAL PAPER OF THE UNITED
STATES; AND WE DID SO IN VIEW OF THE DESIRABILITY OF A UNIFORM RULE IN
THAT AREA.  ID., P. 367.  BUT EVEN THAT RULE WAS QUALIFIED IN BANK OF
AMERICA V. PARNELL, 352 U.S. 29.  IN TUNSTALL V. BROTHERHOOD, 323 U.S.
210, THE FEDERAL RIGHT WAS DERIVED FROM THE FEDERAL DUTY OF THE UNION
TO ACT AS BARGAINING REPRESENTATIVE FOR ALL MEMBERS OF THE UNION. 
(FN5)  BUT IT IS DIFFICULT FOR US TO SEE HOW THE PRESENT STATUTE, WHICH
ONLY GRANTS POWER TO ISSUE SUBPOENAS, IMPLIES A CAUSE OF ACTION FOR
ABUSE OF THAT POWER.  CONGRESS HAS NOT DONE HERE WHAT WAS DONE IN
TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, AND LEFT TO FEDERAL
COURTS THE CREATION OF A FEDERAL COMMON LAW FOR ABUSE OF PROCESS. 

WHEN IT COMES TO SUITS FOR DAMAGES FOR ABUSE OF POWER, FEDERAL
OFFICIALS ARE USUALLY GOVERNED BY LOCAL LAW.  SEE, E.G., SLOCUM V.
MAYBERRY, 2 WHEAT.  1, 10, 12.  FEDERAL LAW, HOWEVER, SUPPLIES THE
DEFENSE, IF THE CONDUCT COMPLAINED OF WAS DONE PURSUANT TO A FEDERALLY
IMPOSED DUTY (SEE, E.G., MAYOR V. COOPER, 6 WALL.  247; CF. TENNESSEE
V. DAVIS, 100 U.S. 257), OR IMMUNITY FROM SUIT.  SEE BARR V. MATTEO,
SUPRA; HOWARD V. LYONS, SUPRA.  CONGRESS COULD, OF COURSE, PROVIDE
OTHERWISE, BUT IT HAS NOT DONE SO.  OVER THE YEARS CONGRESS HAS
CONSIDERED THE PROBLEM OF STATE CIVIL AND CRIMINAL ACTIONS AGAINST
FEDERAL OFFICIALS MANY TIMES.  SEE HART AND WECHSLER, THE FEDERAL
COURTS AND THE FEDERAL SYSTEM, 1147-1150.  BUT NO GENERAL STATUTE
MAKING FEDERAL OFFICERS LIABLE FOR ACTS COMMITTED "UNDER COLOR," BUT IN
VIOLATION, OF THEIR FEDERAL AUTHORITY HAS BEEN PASSED.  CONGRESS HAS
PROVIDED FOR REMOVAL TO A FEDERAL COURT OF ANY STATE ACTION, CIVIL OR
CRIMINAL, AGAINST "ANY OFFICER OF THE UNITED STATES  ...  , OR PERSON
ACTING UNDER HIM, FOR ANY ACT UNDER COLOR OF SUCH OFFICE  ...  ."  28
U.S.C. SEC.  1442(A)(1).  THAT STATE LAW GOVERNS THE CAUSE OF ACTION
ALLEGED IS SHOWN BY THE FACT THAT REMOVAL IS POSSIBLE IN A NONDIVERSITY
CASE SUCH AS THIS ONE ONLY BECAUSE THE INTERPRETATION OF A FEDERAL
DEFENSE MAKES THE CASE ONE "ARISING UNDER" THE CONSTITUTION OR LAWS OF
THE UNITED STATES.  SEE TENNESSEE V. DAVIS, SUPRA; GAY V. RUFF, 292
U.S. 25, 34.  WE CONCLUDE, THEREFORE, THAT IT IS NOT FOR US TO FILL ANY
HIATUS CONGRESS HAS LEFT IN THIS AREA. 

NO QUESTION OF PENDENT JURISDICTION AS IN HURN V. OURSLER, 289 U.S.
238, IS PRESENTED, FOR PETITIONER HAS NOT ATTEMPTED TO STATE A CLAIM
UNDER STATE LAW. 

WE HOLD ON THE CONCEDED FACTS THAT NO FEDERAL CAUSE OF ACTION WAS
STATED AND THAT THE JUDGMENT MUST BE AND IS AFFIRMED. 

FN1  PETITIONER DONALD WHEELDIN WAS IN THE CASE WHEN WE GRANTED
CERTIORARI.  BUT SINCE THAT TIME WHEELDIN HAS MOVED FOR LEAVE TO
WITHDRAW HIS PETITION, WHICH MOTION WE HEREBY GRANT. 

FN2  BY SEC. 1983 CONGRESS MADE LIABLE IN CIVIL SUITS "EVERY PERSON"
WHO "UNDER COLOR" OF ANY STATE OR TERRITORIAL LAW DEPRIVES ANYONE OF A
RIGHT "SECURED BY THE CONSTITUTION AND LAWS" OF THE UNITED STATES.  BUT
RESPONDENT WHEELER WAS NOT ACTING "UNDER COLOR" (SEE SCREWS V. UNITED
STATES, 325 U.S. 91, 108, 111; MONROE V. PAPE, 365 U.S. 167, 171-187)
OF STATE OR TERRITORIAL LAW.  AND EVEN IF SEC. 1985 APPLIES TO FEDERAL
OFFICERS (COMPARE SCREWS V. UNITED STATES, SUPRA, WITH COLLINS V.
HARDYMAN, 341 U.S. 651) WHO CONSPIRE WITH OTHERS TO COMMIT ACTS FALLING
WITHIN THE NARROW CONFINES OF THAT STATUTE, NO SUCH CONSPIRACY IS HERE
INVOLVED.  SEE GENERALLY 1 EMERSON AND HABER, POLITICAL AND CIVIL
RIGHTS IN THE UNITED STATES, 79-100; 1961 UNITED STATES COMMISSION ON
CIVIL RIGHTS REPORT, BOOK 5, 71-77. 

FN3 28 U.S.C. SEC. 2680 PROVIDES:  "THE PROVISIONS OF (THE TORT
CLAIMS ACT)  ...  SHALL NOT APPLY TO: 

     *         *    *         *         * 

"(H)  ANY CLAIM ARISING OUT OF ASSAULT, BATTERY, FALSE IMPRISONMENT,
FALSE ARREST, MALICIOUS PROSECUTION, ABUSE OF PROCESS, LIBEL, SLANDER,
MISREPRESENTATION, DECEIT, OR INTERFERENCE WITH CONTRACT RIGHTS." 

FN4  LEGISLATIVE REORGANIZATION ACT OF 1946, P.L. 601, C. 753, HOUSE
RULE XI(1)(Q)(2), 60 STAT. 828:  "SUBPENAS MAY BE ISSUED UNDER THE
SIGNATURE OF THE CHAIRMAN OF THE COMMITTEE (ON UN-AMERICAN ACTIVITIES)
OR ANY SUBCOMMITTEE, OR BY ANY MEMBER DESIGNATED BY ANY SUCH CHAIRMAN
...  ." 

FN5  THE OTHER CASES CITED ARE SINGULARLY INAPPOSITE.  HOLMBERG V.
ARMBRECHT, 327 U.S. 392, WAS A SUIT TO ENFORCE A LIABILITY CREATED BY A
FEDERAL STATUTE, AND THE QUESTION WAS WHAT REMEDIES THE FEDERAL COURTS
SHOULD APPLY.  HOWARD V. LYONS, 360 U.S. 593, HELD IN A DIVERSITY SUIT
FOR LIBEL AGAINST A FEDERAL OFFICIAL THAT, ALTHOUGH STATE LAW CREATED
THE RIGHT, THE DEFENSE OF PRIVILEGE IS TO BE FORMULATED BY THE FEDERAL
COURTS.  ID., 597. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK JOIN, DISSENTING. 

THE COURT OF APPEALS CHARACTERIZED PETITIONERS' SUIT AS FOLLOWS:
"THE GRAVAMEN OF THEIR COMPLAINT IS THAT THE SUBPOENAS WERE INVALIDLY,
MALICIOUSLY AND MISCHIEVOUSLY ISSUED AND SERVED FOR THE SOLE PURPOSE OF
EXPOSING THEM TO PUBLIC SCORN WITH CONSEQUENT LOSS OF EMPLOYMENT AND OF
ESTEEM.  THEY ASSERT THAT THEY HAVE A FEDERAL RIGHT TO PROTECTION
AGAINST SUCH ABUSE OF FEDERAL PROCESS; THAT SINCE THE SUBPOENAS WERE
NOT PROPERLY ISSUED APPELLEE IN SECURING THEIR ISSUANCE AND SERVICE HAS
SUBJECTED HIMSELF TO PERSONAL LIABILITY."  302 F.2D 36-37.  THE COURT
OF APPEALS DID NOT, HOWEVER, DECIDE WHETHER SUCH A "FEDERAL RIGHT"
EXISTS AND, IF SO, WHETHER THE COMPLAINT SUFFICIENTLY ALLEGED A DENIAL
OF IT.  IT SUSTAINED THE DISTRICT COURT'S DISMISSAL ON THE SOLE GROUND
THAT THE ALLEGEDLY UNLAWFUL ACTS HAD BEEN COMMITTED BY RESPONDENT IN
THE LINE OF HIS DUTY AS A FEDERAL OFFICER, AND THAT THEREFORE HE WAS
IMMUNE FROM SUIT BY REASON OF THE PRINCIPLES ANNOUNCED IN BARR V.
MATTEO, 360 U.S. 564.  IN THIS COURT, THE SOLICITOR GENERAL OF THE
UNITED STATES, APPEARING AS COUNSEL FOR THE RESPONDENT, CANDIDLY ADMITS
THAT THE COURT OF APPEALS MISAPPLIED BARR V. MATTEO.  IN THAT CASE WE
UPHELD THE GOVERNMENTAL-OFFICER IMMUNITY IN RESPECT OF "ACTION  ...
TAKEN  ...  WITHIN THE OUTER PERIMETER OF PETITIONER'S LINE OF DUTY." 
360 U.S., AT 575.  IT HAS NEVER BEEN SUGGESTED THAT THE IMMUNITY
REACHES BEYOND THAT PERIMETER, SO AS TO SHIELD A FEDERAL OFFICER ACTING
WHOLLY ON HIS OWN.  A FEDERAL OFFICER REMAINS LIABLE FOR ACTS COMMITTED
"MANIFESTLY OR PALPABLY BEYOND HIS AUTHORITY."  SPALDING V. VALAS, 161
U.S. 483, 498; SEE COLPOYS V. GATES, 73 APP. D.C. 193, 118 F.2D 16;
KOZLOWSKI V. FERRARA, 117 F. SUPP. 650; NOTE, REMEDIES AGAINST THE
UNITED STATES AND ITS OFFICIALS, 70 HARV. L. REV. 827, 835 (1957). 
LIBERALLY CONSTRUED, SEE VIRGIN ISLANDS CORP. V. W.A. TAYLOR & CO., 202
F.2D 61; 2 MOORE, FEDERAL PRACTICE (2D ED. 1948), PAR. 12.08, AT 2245,
PETITIONER DAWSON'S COMPLAINT ALLEGES NO LESS.  (FN1)  HE ALLEGES THAT
RESPONDENT "SECURED FROM THE STAFF OF SAID COMMITTEE, BLANK SUBPOENAS
IN LARGE NUMBERS," AND THIS CAN BE READ, THE SOLICITOR GENERAL
CONCEDES, "TO ALLEGE THAT NO MEMBER OF THE COMMITTEE EVEN ATTEMPTED TO
DELEGATE THE COMMITTEE'S SUBPOENA POWER TO WHEELER."  SINCE MEMBERS OF
THE COMMITTEE'S STAFF CLEARLY HAVE NO POWER TO DELEGATE THE ISSUANCE OF
SUBPOENAS, RESPONDENT, ACCORDING TO THE ALLEGATIONS OF THE COMPLAINT,
WAS ACTING "MANIFESTLY OR PALPABLY BEYOND HIS AUTHORITY."  (FN2) 

I THINK THE PROPER DISPOSITION OF THIS CASE WOULD BE TO VACATE THE
COURT OF APPEALS' JUDGMENT, BASED AS IT WAS WHOLLY UPON AN ERRONEOUS
GROUND, AND REMAND THE CASE TO THE COURT OF APPEALS FOR CONSIDERATION
OF THE QUESTIONS WHICH THAT COURT FOUND UNNECESSARY TO DECIDE.  I
RECOMMEND THIS COURSE BECAUSE THE INSTANT CASE SEEMS TO ME TO RAISE
NOVEL AND IMPORTANT QUESTIONS WHICH HAVE NOT BEEN ADEQUATELY BRIEFED OR
ARGUED BY THE PARTIES AND WHICH THIS COURT CONSEQUENTLY, IN ITS OPINION
TODAY, TREATS IN A MOST CURSORY FASHION.   THE COURT STATES THAT
"DAWSON'S MAIN RELIANCE IS ON THE FOURTH AMENDMENT."  I CANNOT AGREE
WITH THIS.  AS THE COURT OF APPEALS CORRECTLY APPREHENDED, THE GRAVAMEN
OF THE COMPLAINT IS THE NOTION OF A TORT OF MALICIOUS ABUSE OF FEDERAL
PROCESS BY A FEDERAL OFFICER.  THIS TO ME RAISES A NUMBER OF
QUESTIONS.  DOES THE COMPLAINT STATE A CLAIM ACTIONABLE UNDER COMMON
LAW PRINCIPLES?  IF SO, AND IF THE CLAIM IS A CREATURE OF STATE LAW,
MAY IT NEVERTHELESS BE ENTERTAINED IN THE FEDERAL COURTS?  UNDER WHAT
THEORY, IF ANY, CAN THE CLAIM BE DEEMED FEDERAL AND WITHIN THE ORIGINAL
JURISDICTION OF THE FEDERAL DISTRICT COURTS?  AS WILL BECOME APPARENT,
THESE QUESTIONS, WHICH I SHALL DISCUSS IN ORDER, DO NOT REQUIRE
REFERENCE TO THE FOURTH AMENDMENT.  (FN3) 

THE COURT OF APPEALS DESCRIBED THE INSTANT ACTION AS ONE CLAIMING
MALICIOUS ABUSE OF PROCESS.  BUT, AS USUALLY DEFINED, THAT TORT "IS
COMMITTED WHEN THE ACTOR EMPLOYS LEGAL PROCESS IN A MANNER TECHNICALLY
CORRECT, BUT FOR A WRONGFUL AND MALICIOUS PURPOSE TO ATTAIN AN
UNJUSTIFIABLE END  ... ."  1 HARPER AND JAMES, TORTS (1956), SEC. 4.9;
SEE 3 RESTATEMENT OF TORTS SEC. 682; PROSSER, TORTS (2D ED. 1955), SEC.
100.  PUT SUCCINCTLY, THE TORT IS THE "PERVERSION" OF LEGAL PROCESS. 
MAYER V. WALTER, 64 PA. 283, 286.  IN THE INSTANT CASE, THE PROCESS
ALLEGEDLY ABUSED WAS NOT JUDICIAL, BUT LEGISLATIVE.  I DO NOT, HOWEVER,
CONSIDER THE DISTINCTION MATERIAL.  BUT CF. COMMENT, 63 COL. L. REV.
326, 327, N. 13 (1963).  ABUSE OF ADMINISTRATIVE PROCESS SEEMS TO BE A
RECOGNIZED ASPECT OF THE TORT, SEE 1 HARPER AND JAMES, SUPRA, SEC.
4.10; 3 RESTATEMENT OF TORTS SEC. 680; NATIONAL SURETY CO. V. PAGE, 58
F.2D 145; BUT CF. PETHERBRIDGE V. BELL, 146 VA. 822, 132 S.E. 683, AND
SO DOES ABUSE OF THE JUDICIAL SUBPOENA POWER, DISHAW V. WADLEIGH, 15
APP. DIV. 205, 44 N.Y. SUPP. 207.  THE CONGRESSIONAL SUBPOENA IS NO
LESS MANDATORY THAN THE JUDICIAL, SEE WATKINS V. UNITED STATES, 354
U.S. 178, 187-188, NO LESS A PLACING OF GOVERNMENTAL COMPULSION UPON
THE RECIPIENT, CF. SINCLAIR V. UNITED STATES, 279 U.S. 263, 292.  IT
MAY, OF COURSE, BE THE FIRST LINK IN A CHAIN LEADING TO EVENTUAL
CRIMINAL PROSECUTION.  SEE, E.G., R.S. SEC. 102, AS AMENDED, 2 U.S.C.
SEC. 192. 

I SHOULD POINT OUT THAT THE CONVENTIONAL NOTION OF ABUSE OF PROCESS
ASSUMES THAT THE WRONGDOER IS A PRIVATE PERSON WHO PROCURES THE
ISSUANCE OF VALID, AUTHORIZED LEGAL PROCESS, ALBEIT WITH A WRONGFUL
INTENTION AND FOR AN UNJUSTIFIABLE END.  COMMENT, 63 COL. L. REV.  326,
327, N. 13.  THE TORT, THUS, DOES NOT DEPEND ON THE VALIDITY OF THE
PROCESS, WHICH MAY BE "TECHNICALLY CORRECT," YET STILL ABUSIVE.  IN THE
INSTANT CASE, HOWEVER, LIABILITY IS SOUGHT TO BE IMPOSED UPON THE
OFFICER WHO ISSUES THE PROCESS, AND HIS AUTHORITY VEL NON IS OF THE
ESSENCE.  (FN4)  PERTINENT HERE IS THE SETTLED PRINCIPLE OF THE
ACCOUNTABILITY, IN DAMAGES, OF THE INDIVIDUAL GOVERNMENTAL OFFICER FOR
THE CONSEQUENCES OF HIS WRONGDOING.  SEE, E.G., ENTICK V. CARRINGTON,
19 HOWELL'S STATE TRIALS 1029 (C.P. 1765); MARBURY V. MADISON, 1 CRANCH
137, 163-168; CF. WOLF V. COLORADO, 338 U.S. 25, 30-31, N. 1.  WITH
RESPECT TO FEDERAL OFFICERS, SEE, E.G., LITTLE V. BARREME, 2 CRANCH
169; ELLIOTT V. SWARTWOUT, 10 PET. 137; MITCHELL V. HARMONY, 13 HOW. 
115; BUCK V. COLBATH, 3 WALL.  334; BATES V. CLARK, 95 U.S. 204;
KILBOURN V. THOMPSON, 103 U.S. 168; BELKNAP V. SCHILD, 161 U.S. 10, 18;
PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 619.  THIS PRINCIPLE, IN
COMBINATION WITH THE CONVENTIONAL NOTION OF MALICIOUS ABUSE OF PROCESS,
SEEMS TO ME AMPLE WARRANT FOR CONCLUDING THAT THE INSTANT COMPLAINT
MAKES OUT A COMMON-LAW CAUSE OF ACTION.  COMPARE CASES IN WHICH STATE
JUDICIAL OFFICERS HAVE BEEN HELD LIABLE IN DAMAGES FOR ABUSE OF
PROCESS:  WILLIAMS V. KOZAK, 280 F. 373; DEAN V. KOCHENDORFER, 237 N.Y.
384, 143 N.E. 229; HOPPE V. KLAPPERICH, 224 MINN. 224, 28 N.W.2D 780. 

IF SO, AND IF WE ASSUME THAT THIS CLAIM IS ACTIONABLE UNDER
CALIFORNIA LAW (FN5) (POSTPONING, FOR THE MOMENT, THE QUESTION WHETHER
IT MAY ALSO BE ACTIONABLE UNDER FEDERAL LAW), THEN IT SEEMS TO ME THERE
ARE TWO POSSIBLE THEORIES FOR SUSTAINING FEDERAL COURT JURISDICTION
OVER IT.  THE FIRST RELIES UPON THE PRINCIPLE OF PENDENT JURISDICTION
DRAWN FROM HURN V. OURSLER, 289 U.S. 238.  SINCE THE COMPLAINT ASSERTS
A NONFRIVOLOUS CLAIM UNDER THE FOURTH AMENDMENT, FEDERAL COURT
JURISDICTION ATTACHES, BELL V. HOOD, 327 U.S. 678, THEREBY PERMITTING
DECISION OF THE COMMON-LAW CLAIM WHICH IS BASED UPON THE SAME FACTS,
SEE ID., AT 686 (DISSENTING OPINION).  (FN6)  WHETHER THE INSTANT
COMPLAINT CAN BE READ AS ADEQUATELY CLAIMING PENDENT JURISDICTION WOULD
SEEM A MATTER BEST DETERMINED IN THE FIRST INSTANCE BY THE COURTS
BELOW.  I CANNOT ACCEPT THE COURT'S FLAT ASSERTION THAT "PETITIONER HAS
NOT ATTEMPTED TO STATE A CLAIM UNDER STATE LAW," IN VIEW OF THE
LIBERALITY OF PLEADING PRACTICE UNDER THE FEDERAL CIVIL RULES.  "A
MOTION TO DISMISS A COMPLAINT, WITHOUT THE AID OF ANYTHING EXCEPT THE
COMPLAINT ITSELF, IS USUALLY A MOST UNDESIRABLE WAY FOR A DEFENDANT TO
SEEK A VICTORY.  FOR, ON SUCH A MOTION, THE COURT MUST CONSTRUE THE
COMPLAINT'S LANGUAGE IN A MANNER MOST FAVORABLE TO THE PLAINTIFF; AND,
IF THAT LANGUAGE IS AT ALL AMBIGUOUS, SELDOM WILL IT, WHEN THUS
GENEROUSLY CONSTRUED, FAIL TO SHOW A CAUSE OF ACTION."  VIRGIN ISLANDS
CORP. V. W.A. TAYLOR & CO., SUPRA, AT 65.  THE DISMISSAL OF THE INSTANT
COMPLAINT WAS ON MOTION BY DEFENDANT. 

THE SECOND POSSIBLE THEORY BUILDS FROM SMITH V. KANSAS CITY TITLE &
TRUST CO., 255 U.S. 180.  A SHAREHOLDER SUED TO ENJOIN THE TRUST
COMPANY, A MISSOURI CORPORATION, FROM INVESTING IN CERTAIN FEDERAL
BONDS, ON THE GROUND THAT THE ACT OF CONGRESS AUTHORIZING THEIR
ISSUANCE WAS UNCONSTITUTIONAL.  IT WAS CLAIMED THAT UNDER MISSOURI LAW
AN INVESTMENT IN SECURITIES THE ISSUANCE OF WHICH HAD NOT BEEN
AUTHORIZED BY A VALID LAW WAS ULTRA VIRES AND ENJOINABLE.  THE CAUSE OF
ACTION, THUS, WAS STATE-CREATED.  NEVERTHELESS THIS COURT HELD THAT THE
ACTION WAS ONE ARISING UNDER FEDERAL LAW WITHIN THE MEANING OF THE
PREDECESSOR SECTION TO 28 U.S.C. SEC.  1331(A).  SEE ALSO FIELDING V.
ALLEN, 181 F.2D 163.  IT HAS BEEN SUGGESTED THAT LATER DECISIONS, E.G.,
PUERTO RICO V. RUSSELL & CO., 288 U.S. 476; GULLY V. FIRST NAT. BANK,
299 U.S. 109, REPUDIATED SMITH.  LONDON, "FEDERAL QUESTION"
JURISDICTION - A SNARE AND A DELUSION, 57 MICH. L. REV. 835, 853
(1959).  BUT THOSE DECISIONS ARE CLEARLY DISTINGUISHABLE AS ATTEMPTS TO
FOUND FEDERAL JURISDICTION UPON "REMOTE FEDERAL PREMISES, OR MERE
FEDERAL PERMISSION  ...  , OR OTHER MERELY POSSIBLE FEDERAL DEFENSES." 
HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (1953),
769.  SMITH REMAINS FIRM AUTHORITY FOR THE PRINCIPLE THAT "WHERE
FEDERAL LAW HAS INSERTED ITSELF INTO THE TEXTURE OF STATE LAW, A CLAIM
FOUNDED ON THE NATIONAL LEGISLATION COULD BE BROUGHT INTO A FEDERAL
FORUM" EVEN IF THE RIGHT OF ACTION WAS STATE-CREATED.  MISHKIN, THE
FEDERAL "QUESTION" IN THE DISTRICT COURTS, 53 COL. L. REV. 157, 166
(1953).  STATED DIFFERENTLY, "IN THE SMITH CASE THE CLAIM UNDER FEDERAL
LAW WAS AN ESSENTIAL INGREDIENT OF THE PLAINTIFF'S CASE, WITHOUT WHICH
HE COULD ASSERT NO RIGHT TO RELIEF."  HART AND WECHSLER, SUPRA, AT
766.  IN SHORT, THERE IS FEDERAL-QUESTION JURISDICTION IF A PROPOSITION
OF FEDERAL LAW IS INHERENT IN THE PLAINTIFF'S CLAIM.  CF. WECHSLER,
FEDERAL JURISDICTION AND THE REVISION OF THE JUDICIAL CODE, 13 LAW AND
CONTEMP.  PROB.  216, 225 (1948). 

HOW DOES THE INSTANT COMPLAINT FARE UNDER THIS STANDARD?  THE MATTER
IS NOT FREE FROM DOUBT, BUT IT IS ARGUABLE, AT LEAST, THAT INHERENT IN
A CLAIM TO ABUSE OF FEDERAL PROCESS BY A FEDERAL OFFICER ARE CERTAIN
PROPOSITIONS DRAWN FROM THE NETWORK OF FEDERAL STATUTORY AND
CONSTITUTIONAL PROVISIONS GOVERNING CONGRESSIONAL INVESTIGATIONS.  IN
OTHER WORDS, IMPLICIT IN THE NOTION OF ABUSE OF PROCESS ARE THE
PRINCIPLES CONTROLLING THE PROPER USE OF PROCESS.  CONCRETELY, THE
INSTANT COMPLAINT ASSERTS THAT RESPONDENT'S USE OF CONGRESSIONAL
PROCESS WAS UNAUTHORIZED AND WAS FOR AN "UNJUSTIFIABLE END," P. 655,
SUPRA; SURELY THE CONTOURS OF THIS AUTHORITY AND THE CLASSIFICATION OF
JUSTIFIABLE AND UNJUSTIFIABLE ENDS OF CONGRESSIONAL PROCESS ARE MATTERS
OF FEDERAL LAW.  THUS, JUST AS SMITH IS A CASE "WHERE STATE LAW
INCORPORATES FEDERAL STANDARDS BY REFERENCE," WECHSLER, SUPRA, AT 225,
N. 46, SO HERE A BASIC ELEMENT OF THE COMMON-LAW TORT IS THE BODY OF
FEDERAL LAW AUTHORIZING AND DEFINING THE ISSUANCE OF FEDERAL
LEGISLATIVE PROCESS.  I DO NOT WISH, HOWEVER, TO BE UNDERSTOOD AS
SUGGESTING THAT THE ANALOGY IS PERFECT.  (FN7) 

I COME NOW TO THE QUESTION WHETHER PETITIONER DAWSON'S CAUSE OF
ACTION MAY BE DEEMED CREATED BY FEDERAL LAW APART FROM THE FOURTH
AMENDMENT.  IT IS NOT CLAIMED THAT ANY FEDERAL STATUTE IN TERMS CONFERS
A REMEDY IN DAMAGES FOR MALICIOUS ABUSE OF FEDERAL PROCESS BY A FEDERAL
OFFICER.  (FN8)  BUT IT IS ARGUED THAT SUCH A REMEDY (1) MAY BE IMPLIED
FROM THE ACT OF CONGRESS RESPECTING THE ISSUANCE OF SUBPOENAS BY THE
HOUSE UN-AMERICAN ACTIVITIES COMMITTEE AND ITS SUBCOMMITTEES, AND (2)
IS GIVEN BY THE FEDERAL COMMON LAW. 

THE LEGISLATIVE REORGANIZATION ACT OF 1946, C. 753, SEC. 121(B),
HOUSE RULE XI(1)(Q)(2), 60 STAT. 828, PROVIDES IN PART:  "SUBPENAS MAY
BE ISSUED UNDER THE SIGNATURE OF THE CHAIRMAN OF THE COMMITTEE (ON UN
AMERICAN ACTIVITIES) OR ANY SUBCOMMITTEE, OR BY ANY MEMBER DESIGNATED
BY ANY SUCH CHAIRMAN ...  ."  IF THIS PROVISION BE INTERPRETED TO
PROHIBIT RESPONDENT FROM ISSUING THE COMMITTEE'S SUBPOENAS ON HIS OWN,
(FN9) MAY A RIGHT OF ACTION IN DAMAGES BE IMPLIED IN FAVOR OF ONE
INJURED AS A DIRECT CONSEQUENCE OF RESPONDENT'S UNLAWFUL USE OF SUCH A
SUBPOENA?  I SEE NO REASON WHY IT MAY NOT.   "IMPLIED RIGHTS OF ACTION
ARE NOT CONTINGENT UPON STATUTORY LANGUAGE WHICH AFFIRMATIVELY
INDICATES THAT THEY ARE INTENDED.  ON THE CONTRARY, THEY ARE IMPLIED
UNLESS THE LEGISLATION EVIDENCES A CONTRARY INTENTION."  BROWN V.
BULLOCK, 194 F. SUPP. 207, 224, AFF'D ON OTHER GROUNDS, 294 F.2D 415. 
INCREASINGLY, THE TENDENCY IN THE FEDERAL COURTS HAS BEEN TO INFER
PRIVATE RIGHTS OF ACTION FROM FEDERAL STATUTES UNLESS TO DO SO WOULD
DEFEAT MANIFEST CONGRESSIONAL PURPOSE.  SEE, E.G., TEXAS & PAC. R. CO.
V. RIGSBY, 241 U.S. 33; TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN, 323 U.S. 210; NEISWONGER V. GOODYEAR TIRE & RUBBER CO., 35
F.2D 761; REITMEISTER V. REITMEISTER, 162 F.2D 691; FITZGERALD V. PAN
AMERICAN WORLD AIRWAYS, 229 F.2D 499; ROOSEVELT FIELD, INC., V. TOWN OF
NORTH HEMPSTEAD, 84 F. SUPP. 456; WILLS V. TRANS WORLD AIRLINES, 200 F.
SUPP.  360; 2 LOSS, SECURITIES REGULATION (2D ED. 1961), 932-956; NOTE,
48 COL. L. REV. 1090 (1948).  WE MUST PRESUME THAT CONGRESS, IN
SPECIFYING THE CONDITIONS FOR THE LAWFUL DELEGATION OF THE COMMITTEE ON
UN-AMERICAN ACTIVITIES' SUBPOENA POWER, WAS MINDFUL OF THE GRAVE
INJUSTICES WHICH MIGHT BE DONE TO INDIVIDUALS AS A RESULT OF THE
FLOUTING OF THOSE CONDITIONS.  IN THIS SENSE, RULE XI(1)(Q)(2) MAY BE
SAID TO HAVE CREATED A PROTECTED CLASS OF PRIVATE PERSONS OF WHICH
PETITIONER DAWSON, IF THE ALLEGATIONS OF HIS COMPLAINT BE TRUE, IS A
MEMBER.  MOREOVER, A PRIVATE DAMAGES ACTION AFFORDS THE ONLY
PRACTICABLE MEANS OF REDRESSING THE KIND OF WRONG DAWSON ALLEGES. 
SINCE HE WAS NEVER CALLED TO TESTIFY HE COULD NOT USE THE CIRCUMSTANCES
SURROUNDING THE ISSUANCE OF THE SUBPOENA DEFENSIVELY, (FN10) AND, FOR
THE SAME REASON, HIS PRAYER FOR INJUNCTIVE RELIEF WAS STRUCK BELOW AS
MOOT, 280 F.2D 293 (PER CURIAM).  AND CF.  PAULING V. EASTLAND, 109
U.S. APP. D.C. 342, 288 F.2D 126; MINS V. MCCARTHY, 93 U.S. APP.  D.C.
220, 209 F.2D 307. 

NOR IS IT THE CASE THAT A CONGRESSIONAL RULE (IN THE INSTANT CASE
CONTAINED IN AN ACT OF CONGRESS) STANDS ON A DIFFERENT FOOTING, AS
RESPECTS JUDICIAL ENFORCEMENT, FROM A RULE RESPECTING ADMINISTRATIVE,
EXECUTIVE, OR OTHER CONDUCT.  IT HAS LONG BEEN SETTLED THAT RULES OF
CONGRESS AND ITS COMMITTEES ARE JUDICIALLY COGNIZABLE.  CHRISTOFFEL V.
UNITED STATES, 338 U.S. 84; UNITED STATES V. SMITH, 286 U.S. 6; UNITED
STATES V. BALLIN, 144 U.S. 1.  I THEREFORE SEE NO OBJECTION IN
PRINCIPLE TO GROUNDING A PRIVATE ACTION IN SUCH A RULE. 

A FINAL APPROACH TO THE PROBLEM OF FOUNDING FEDERAL JURISDICTION
(FN11) IS BY WAY OF THE FEDERAL COMMON LAW.  MR. JUSTICE BRANDEIS'
DICTUM:  "THERE IS NO FEDERAL GENERAL COMMON LAW," ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, 78, CANNOT, OF COURSE, BE TAKEN AT ITS FULL
BREADTH.  "ALTHOUGH FEDERAL JUDICIAL POWER TO DEAL WITH COMMON-LAW
PROBLEMS WAS CUT DOWN IN THE REALM OF LIABILITY OR ITS ABSENCE
GOVERNABLE BY STATE LAW, THAT POWER REMAINED UNIMPAIRED FOR DEALING
INDEPENDENTLY, WHEREVER NECESSARY OR APPROPRIATE, WITH ESSENTIALLY
FEDERAL MATTERS, EVEN THOUGH CONGRESS HAS NOT ACTED AFFIRMATIVELY ABOUT
THE SPECIFIC QUESTION."  UNITED STATES V. STANDARD OIL CO., 332 U.S.
301, 307.  "WERE WE BEREFT OF THE COMMON LAW, OUR FEDERAL SYSTEM WOULD
BE IMPOTENT."  D'OENCH, DUHME & CO. V. F.D.I.C., 315 U.S. 447, 470
(CONCURRING OPINION).  AND SO IN A WIDE VARIETY OF CASES THE FEDERAL
COURTS HAVE ASSUMED TO FASHION FEDERAL COMMON-LAW RIGHTS.  (FN12)
ORDINARILY, TO BE SURE, SUCH FASHIONING IS DONE UNDER THE AEGIS OF A
MORE SPECIFIC JURISDICTIONAL GRANT THAN 28 U.S.C. SEC. 1331(A).  BUT I
AGREE WITH THE TEST SET FORTH IN UNITED STATES V. STANDARD OIL CO.,
SUPRA, AND WOULD RECOGNIZE THE EXISTENCE OF FEDERAL COMMON-LAW RIGHTS
OF ACTION "WHEREVER NECESSARY OR APPROPRIATE" FOR DEALING WITH
"ESSENTIALLY FEDERAL MATTERS."  PLAINLY, THIS TEST SUPPORTS RECOGNITION
OF A FEDERAL CAUSE OF ACTION ON THE FACTS OF THE INSTANT COMPLAINT. 
"ACTIONS AGAINST FEDERAL OFFICIALS ...  ARE NECESSARILY OF FEDERAL
CONCERN."  WECHSLER, SUPRA, AT 220.  THIS IS NOT TO SAY THAT FEDERAL
LAW IS NECESSARILY IMPLICATED WHENEVER THE DEFENDANT IS A FEDERAL
OFFICER.  SEE JOHNSTON V. EARLE, 245 F.2D 793.  BUT WHERE, AS HERE, IT
IS ALLEGED THAT A FEDERAL OFFICER ACTING UNDER COLOR OF FEDERAL LAW HAS
SO ABUSED HIS FEDERAL POWERS AS TO CAUSE UNJUSTIFIABLE INJURY TO A
PRIVATE PERSON, I SEE NO WARRANT FOR CONCLUDING THAT STATE LAW MUST BE
LOOKED TO AS THE SOLE BASIS FOR LIABILITY.  UNDER SUCH CIRCUMSTANCES,
NO STATE INTEREST IS INFRINGED BY A GENEROUS CONSTRUCTION OF FEDERAL
JURISDICTION, AND EVERY CONSIDERATION OF PRACTICALITY AND JUSTICE
ARGUES FOR SUCH A CONSTRUCTION.  (FN13)  TO BE SURE, ONCE THE FEDERAL
COMMON-LAW CAUSE OF ACTION IS RECOGNIZED, THE MUCH-MOOTED PROBLEM
REMAINS WHETHER SUCH A CAUSE ARISES UNDER FEDERAL LAW WITHIN THE
MEANING OF 28 U.S.C. SEC. 1331(A).  THIS COURT HAS NEVER DECIDED THE
QUESTION.  (FN14)  FOR THE POSITION THAT IT DOES, SEE MY SEPARATE
OPINION IN ROMERO V. INTERNATIONAL TERMINAL OPERATING CO., 358 U.S.
354, 389-412, AND KURLAND, THE ROMERO CASE AND SOME PROBLEMS OF FEDERAL
JURISDICTION, 73 HARV.  L. REV. 817, 831-833 (1960). 

LET ME MAKE CLEAR THAT I AM NOT SUGGESTING THAT THIS COURT ENJOYS THE
SAME FREEDOM TO CREATE COMMON-LAW RIGHTS OF ACTION AS DO TRULY COMMON
LAW COURTS.  BUT THERE IS A MATRIX OF FEDERAL STATUTORY AND
CONSTITUTIONAL PRINCIPLES GOVERNING THE RIGHTS, DUTIES, AND IMMUNITIES
OF FEDERAL OFFICERS ACTING UNDER COLOR OF FEDERAL AUTHORITY.  THE
EXISTENCE OF THIS MATRIX MAKES THE MATTER OF PRIVATE ACTIONS AGAINST
SUCH OFFICERS RESPECTING CONDUCT ALLEGED TO BE IN EXCESS OF THEIR
AUTHORITY OF ESSENTIALLY FEDERAL CONCERN, WHICH JUSTIFIES, IN MY VIEW,
THE EXERCISE OF THE RESIDUAL COMMON-LAW POWER WHICH WE UNQUESTIONABLY
POSSESS.  "AT THE VERY LEAST, EFFECTIVE CONSTITUTIONALISM REQUIRES
RECOGNITION OF POWER IN THE FEDERAL COURTS TO DECLARE, AS A MATTER OF
COMMON LAW OR 'JUDICIAL LEGISLATION,' RULES WHICH MAY BE NECESSARY TO
FILL IN INTERSTITIALLY OR OTHERWISE EFFECTUATE THE STATUTORY PATTERNS
ENACTED IN THE LARGE BY CONGRESS."  MISHKIN, THE VARIOUSNESS OF
"FEDERAL LAW": COMPETENCE AND DISCRETION IN THE CHOICE OF NATIONAL AND
STATE RULES FOR DECISION, 105 U. OF PA. L. REV. 797, 800 (1957). 

THUS THE THEORIES OF AN IMPLIED RIGHT OF ACTION BASED ON RULE
XI(1)(Q)(2) AND A FEDERAL COMMON-LAW RIGHT ULTIMATELY COALESCE.  "IT
SEEMS MONSTROUS TO IMPLY THAT WHEN CONGRESS AS A MATTER OF FEDERAL LAW
LAYS THE FOUNDATION FOR A RIGHT OR CONDEMNS ANY CONDUCT AS A WRONG,
NOTHING CAN BE DONE ABOUT IT BY COURTS WITHOUT CLEAR WARRANT IN
STATUTORY LANGUAGE AND LEGISLATIVE HISTORY."  POWELL, USE OF COMMON-LAW
TECHNIQUES AND REMEDIES IN STATUTORY ENFORCEMENT - A STUDY IN JUDICIAL
BEHAVIOR, 57 HARV. L. REV. 900, 902 (1944).  RULE XI(1)(Q)(2) AT LEAST
PROVIDES THE FOUNDATION; THE SUPERSTRUCTURE MAY BE DERIVED FROM THE
VARIOUS SOURCES I HAVE CANVASSED.  I SHOULD NOT LIKE TO BELIEVE THAT
THIS COURT IS HELPLESS TO INAUGURATE IN THE FEDERAL COURTS THE SALUTARY
"RESTORATION OF THE DOCTRINE THAT A GOVERNMENT OFFICER IS CIVILLY
RESPONSIBLE IN DAMAGES FOR AN EXERCISE OF OFFICIAL DISCRETION WHICH IS
MOTIVATED BY PERSONAL VINDICTIVENESS OR DESIRE FOR PERSONAL GAIN." 
HART AND WECHSLER, SUPRA, AT 1230.  I DO NOT BELIEVE THAT THE MATTER
CAN PROPERLY BE REMITTED ENTIRELY TO THE STATE COURTS.  SEE FOOTE,
SUPRA, NOTE 13, FOR A TRENCHANT CRITICISM OF EXISTING STATE REMEDIES
FOR THE WRONGFUL ACTS OF PUBLIC OFFICERS.  CF. MAPP V. OHIO, 367 U.S.
643, 651-652. 

I HAVE DEALT WITH THE FOREGOING PROBLEMS IN A DELIBERATELY TENTATIVE
MANNER.  MY DISCUSSION IS INTENDED TO BE ONLY SUGGESTIVE, NOT
EXHAUSTIVE; I AM NOT PREPARED TO OFFER DEFINITIVE SOLUTIONS.  BUT IT
SEEMS TO ME THAT THESE NOVEL AND DIFFICULT PROBLEMS PERMEATE THE CASE
AND JUSTIFY OUR ADOPTION HERE OF THE DISPOSITION WE MADE IN BELL V.
HOOD OF REMANDING THE CASE FOR A CONSIDERATION OF THEM BY THE COURTS
BELOW IN THE FIRST INSTANCE. 

FN1  PETITIONER WHEELDIN HAS WITHDRAWN FROM THE CASE IN THIS COURT. 

FN2  IT IS NOT CONTENDED THAT RESPONDENT WAS ACTING UNDER THE ORDERS
OF A SUPERIOR OFFICER WHICH HE REASONABLY BELIEVED TO BE LAWFUL OR
AUTHORIZED.  COMPARE GRAY, PRIVATE WRONGS OF PUBLIC SERVANTS, 47 CAL.
L. REV. 303, 317-318 (1959); COMMENT, 63 COL. L. REV. 326, 334 (1963). 
AND OF COURSE NO ISSUE IS INVOLVED HERE OF THE SCOPE OF THE IMMUNITY OF
CONGRESSMEN THEMSELVES FROM PRIVATE CIVIL SUITS.  CF. TENNEY V.
BRANDHOVE, 341 U.S. 367, 378. 

FN3  IN SO CONFINING MY DISCUSSION, I MEAN TO INTIMATE NO VIEW ON THE
QUESTIONS WHETHER THE COMPLAINT STATES A VIOLATION OF THE FOURTH
AMENDMENT AND WHETHER, IF SO, A REMEDY IN DAMAGES IS AVAILABLE.  ON THE
LATTER QUESTION, COMPARE WILEY V. SINKLER, 179 U.S. 58; SWAFFORD V.
TEMPLETON, 185 U.S. 487; AND BELL V. HOOD, 327 U.S. 678, 684, WITH BELL
V. HOOD, 71 F. SUPP. 813; AND JOHNSTON V. EARLE, 245 F.2D 793.  THESE
QUESTIONS, TOO, SHOULD BE DETERMINED IN THE FIRST INSTANCE BY THE
COURTS BELOW.  SEE BELL V. HOOD, 327 U.S. 678. 

FN4  THE QUESTION OF AUTHORITY IS, OF COURSE, DISTINCT FROM THAT OF
IMMUNITY FROM CIVIL SUIT.  EVEN AN UNAUTHORIZED ACT MAY BE WITHIN THE
SCOPE OF THE IMMUNITY, SO LONG AS IT IS WITHIN THE "OUTER PERIMETER" OF
THE OFFICER'S "LINE OF DUTY."  BARR V. MATTEO, SUPRA, AT 575.  THAT,
HOWEVER, IS A MATTER OF DEFENSE.  WHETHER RESPONDENT'S ISSUANCE OF THE
SUBPOENA TO PETITIONER DAWSON WAS AUTHORIZED BY LAW WOULD SEEM TO BE AN
ELEMENT OF THE TORT FRAMED IN THE COMPLAINT. 

FN5  THE ACTS COMPLAINED OF AS ESTABLISHING THE CAUSE OF ACTION ALL
TOOK PLACE, APPARENTLY, IN CALIFORNIA, AND PETITIONER AND RESPONDENT
ARE BOTH RESIDENTS OF CALIFORNIA; THUS, THE TORT LAW OF CALIFORNIA
WOULD SEEM TO BE THE APPROPRIATE REFERENT.  NEITHER THE PARTIES NOR THE
COURTS BELOW HAVE CANVASSED THE POSSIBLY RELEVANT CALIFORNIA
AUTHORITIES AND I HAVE MADE NO INDEPENDENT INVESTIGATION OF THE
QUESTION.  BUT CONSIDER SEC. 3281 OF THE CALIFORNIA CIVIL CODE:  "EVERY
PERSON WHO SUFFERS DETRIMENT FROM THE UNLAWFUL ACT OR OMISSION OF
ANOTHER, MAY RECOVER FROM THE PERSON IN FAULT A COMPENSATION THEREFOR
IN MONEY, WHICH IS CALLED DAMAGES."  CF. BELL V. HOOD, 71 F. SUPP. 813,
817; TOSCANO V. OLESEN, 189 F. SUPP. 118; BUT CF. FOOTE, TORT REMEDIES
FOR POLICE VIOLATIONS OF INDIVIDUAL RIGHTS, 39 MINN. L. REV.  493, 502
503 (1955). 

FN6  THE SOLICITOR GENERAL AGREES THAT THE FOURTH AMENDMENT CLAIM IN
THE COMPLAINT CONFERRED FEDERAL COURT JURISDICTION TO DISPOSE OF IT ON
THE MERITS, AND THE COURT OF APPEALS SO HELD IN AN EARLIER PHASE OF THE
INSTANT LITIGATION.  280 F.2D 293 (PER CURIAM).  THIS RESULT IS CLEARLY
COMPELLED BY BELL V. HOOD, 327 U.S. 678.  ON THE REMAND IN BELL V.
HOOD, THE DISTRICT COURT HELD THAT A STATE LAW CLAIM RELYING ON THE
SAME FACTS AS THE FOURTH AMENDMENT CLAIM COULD NOT BE ENTERTAINED UNDER
THE DOCTRINE OF PENDENT JURISDICTION BECAUSE THE FOURTH AMENDMENT CLAIM
DID NOT STATE A CAUSE OF ACTION.  71 F. SUPP. 813, 820.  THIS GROUND
HAS BEEN CRITICIZED, WITH THE SUGGESTION HOWEVER THAT "THE DISMISSAL
MIGHT HAVE BEEN MORE CONVINCINGLY SUPPORTED BY SAYING THAT THE DOG
WOULD BE WAGGED BY HIS TAIL IF PLENARY TRIAL OF AN ANCILLARY CLAIM WAS
COMPELLED BY A PRIMARY CLAIM WHICH COULD BE DISPOSED OF ON THE
PLEADINGS."  HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM (1953), 808; SEE NOTE, 62 COL. L. REV. 1018, 1025-1026 (1962);
SALGANIK V. MAYOR AND CITY COUNCIL OF BALTIMORE, 192 F. SUPP.  897. 
WHETHER THIS SUGGESTION HAS MERIT OR APPLICABILITY IN THE INSTANT CASE
I AM NOT PREPARED TO SAY.  I SHOULD ALSO POINT OUT THAT IF THE FEDERAL
QUESTION WERE DEEMED COMPLETELY INSUBSTANTIAL ON THE MERITS, DISMISSAL
OF THE PENDENT CLAIM MIGHT BE APPROPRIATE ON THAT GROUND.  SEE LEVERING
& GARRIGUES CO. V. MORRIN, 289 U.S. 103, 105; EMMONS V. SMITT, 149 F.2D
869.  I NOTE FINALLY THAT THE DISTRICT COURT IN BELL V. HOOD ON REMAND
SUGGESTED THAT THE DOCTRINE OF PENDENT JURISDICTION PERTAINS ONLY TO
EQUITABLE CLAIMS.  71 F. SUPP., AT 820.  THIS WAS ERROR.  SEE, E.G.,
MANOSKY V. BETHLEHEM-HINGHAM SHIPYARD, INC., 177 F.2D 529; NOTE, 62
COL. L. REV. 1018, 1034-1041 (1962). 

FN7  IN SMITH, THE INVESTMENT POWERS OF THE TRUST COMPANY WERE
SUBJECT TO FEDERAL LAW GOVERNING THE ISSUANCE OF FEDERAL SECURITIES. 
THUS, SUBSTANTIALLY THE ONLY QUESTION IN THE CASE WAS THE VALIDITY VEL
NON OF THE ISSUANCE UNDER FEDERAL LAW.  HERE, BESIDES THE QUESTION OF
RESPONDENT'S AUTHORITY VEL NON TO ISSUE THE SUBPOENA, THERE ARE
QUESTIONS, E.G., MALICE, WHICH MIGHT BE THOUGHT TO BE ROOTED IN THE
COMMON LAW OF ABUSE OF PROCESS. 

FN8  NO CLAIM HERE IS MADE OF A CONSPIRACY TO DENY PETITIONER THE
EQUAL PROTECTION OF THE LAWS.  R.S. SEC. 1980 THIRD, 42 U.S.C. SEC.
1985(3).  NOR IS THIS AN ACTION FOR BREACH OF A UNITED STATES MARSHAL'S
BOND, 28 U.S.C. SEC. 544; IN AN EARLIER PHASE OF THE INSTANT
LITIGATION, THE COMPLAINT WAS DISMISSED AS AGAINST A UNITED STATES
MARSHAL AND A SHERIFF AS FRIVOLOUS.  280 F.2D 293 (PER CURIAM).   THE
FEDERAL TORT CLAIMS ACT, 28 U.S.C. SECS.  2671-2680, HAS NOTHING TO DO
WITH THE PRESENT CASE, SINCE THE ACT IMPOSES LIABILITY ON THE UNITED
STATES AND DOES NOT PERTAIN TO THE QUESTION OF INDIVIDUAL FEDERAL
OFFICERS' PERSONAL TORT LIABILITY.  THE ACT EXCLUDES ABUSE OF PROCESS
AND OTHER INTENTIONAL TORTS.  SEE SEC. 2680(H). 

FN9  I DO NOT REACH THE QUESTION, WHICH WAS NOT DECIDED BELOW OR
DISCUSSED IN THE OPINION OF THE COURT TODAY, WHETHER THE COMMITTEE MAY
DELEGATE THE POWER TO ISSUE SUBPOENAS TO MEMBERS OF ITS STAFF;
PETITIONER DAWSON CONTENDS THAT NO SUCH DELEGATION WAS HERE ATTEMPTED,
SEE P. 654, SUPRA. 

FN10  ARGUABLY, THE VALIDITY OF THE SUBPOENA COULD NOT BE CHALLENGED
IN A CRIMINAL PROSECUTION BASED ON REFUSAL TO TESTIFY BEFORE THE
COMMITTEE, BUT PRESUMABLY IT COULD BE CHALLENGED IN A PROSECUTION FOR
WILLFUL DEFAULT OF SUBPOENA.  SEE R.S. SEC. 102, AS AMENDED, 2 U.S.C.
SEC.  192; MCPHAUL V. UNITED STATES, 364 U.S. 372. 

FN11  IF RULE XI(1)(Q)(2) WERE INTERPRETED TO CREATE AN IMPLIED RIGHT
OF ACTION IN FAVOR OF PETITIONER, HIS CLAIM WOULD BE ONE ARISING UNDER
FEDERAL LAW WITHIN THE MEANING OF 28 U.S.C. SEC. 1331(A), SINCE THE
RULE WAS ENACTED AS PART OF AN ACT OF CONGRESS.  IT SEEMS TO ME TO MAKE
NO DIFFERENCE THAT THE INSTANT COMPLAINT CITES NOT THE LEGISLATIVE
REORGANIZATION ACT, BUT RATHER H. RES. 5, 85TH CONG., 1ST SESS.,
WHEREIN THE PROVISIONS OF THE ACT WERE ADOPTED IN HAEC VERBA AS RULES
OF THE 85TH CONGRESS.  SEE 103 CONG. REC. 47 (1957). 

FN12  E.G., SOUTHERN EXPRESS CO. V. BYERS, 240 U.S. 612; SOLA ELEC. 
CO. V. JEFFERSON ELEC.  CO., 317 U.S. 173; CLEARFIELD TRUST CO. V.
UNITED STATES, 318 U.S. 363, 367; UNITED STATES V. COUNTY OF ALLEGHENY,
322 U.S. 174, 183; HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395; UNITED
STATES V. FULLARD-LEO, 331 U.S. 256, 269-270; REA V. UNITED STATES, 350
U.S. 214; TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 457; HOWARD
V. LYONS, 360 U.S. 593, 597; INTERNATIONAL ASSN. OF MACHINISTS V.
CENTRAL AIRLINES, 372 U.S. 682, 691, 693, N. 17; O'BRIEN V. WESTERN
UNION TEL. CO., 113 F.2D 539; KAUFMAN V. WESTERN UNION TEL. CO., 224
F.2D 723, 728; KARDON V. NATIONAL GYPSUM CO., 73 F. SUPP. 798; SEE
HART, THE RELATIONS BETWEEN STATE AND FEDERAL LAW, 54 COL. L. REV. 489,
530-535 (1954); BELL V. HOOD, 327 U.S. 678, 684. 

FN13  THUS, IT IS UNSETTLED WHETHER THE STATE COURTS HAVE
JURISDICTION TO ENTERTAIN AN ACTION TO ENJOIN A FEDERAL OFFICER ACTING
UNDER COLOR OF FEDERAL LAW, HART AND WECHSLER, SUPRA, AT 388-391, SO
THAT DENIAL OF FEDERAL COURT JURISDICTION OVER CLAIMS SUCH AS
PETITIONER'S MIGHT LEAVE AN INJURED PARTY TOTALLY REMEDILESS.  TO BE
SURE, THERE IS STATE COURT JURISDICTION OF DAMAGES ACTIONS AGAINST
FEDERAL OFFICERS.  TEAL V. FELTON, 12 HOW.  284; BUCK V. COLBATH, 3
WALL.  334.  BUT DAMAGES MAY NOT IN EVERY CASE BE AN ADEQUATE REMEDY. 
AND IF THE EXISTENCE OF STATE DAMAGES REMEDIES WERE RELIED UPON TO
CONFINE FEDERAL COURT JURISDICTION TO EQUITABLE ACTIONS AGAINST FEDERAL
OFFICERS, A PERSON SEEKING BOTH EQUITABLE AND DAMAGES RELIEF COULD ONLY
INVOKE FEDERAL COURT JURISDICTION AT THE COST OF SPLITTING HIS CLAIM. 
SO ALSO, THE BROAD PROVISIONS FOR THE REMOVAL TO FEDERAL COURTS OF
ACTIONS COMMENCED AGAINST FEDERAL OFFICERS, 28 U.S.C. SEC. 1442,
UNFAIRLY GIVE ACCESS TO THE FEDERAL COURTS TO DEFENDANTS WHICH IS
DENIED PLAINTIFFS.  SEE WECHSLER, SUPRA, AT 220-221.  AND IT HAS BEEN
SUGGESTED THAT RECOGNITION OF A FEDERAL CAUSE OF ACTION AGAINST
GOVERNMENTAL OFFICERS MIGHT ALLOW A MORE EFFECTIVE MEASURE OF DAMAGES
THAN IS PRESENTLY AVAILABLE UNDER STATE TORT LAW.  FOOTE, TORT REMEDIES
FOR POLICE VIOLATIONS OF INDIVIDUAL RIGHTS, 39 MINN. L. REV. 493, 512
(1955). 

FN14  IN ROMERO V. INTERNATIONAL TERMINAL OPERATING CO., 358 U.S.
354, A MAJORITY OF THE COURT HELD THAT CLAIMS UNDER THE GENERAL
MARITIME LAW, WHICH IS A BODY OF FEDERAL DECISIONAL LAW, DID NOT ARISE
UNDER FEDERAL LAW FOR THE PURPOSES OF SEC. 1331(A).  BUT THE COURT
BASED ITS DECISION ON CONSIDERATIONS PECULIAR TO THE MARITIME LAW AND
DID NOT PURPORT TO RESOLVE THE BROADER QUESTION WHETHER CLAIMS UNDER
FEDERAL COMMON LAW ARE WITHIN SEC. 1331(A).  SEE 358 U.S., AT 395
(SEPARATE OPINION). 
..END :









MCNEESE V. BOARD OF EDUCATION FOR COMMUNITY UNIT SCHOOL DISTRICT 187,
CAHOKIA, ILLINOIS 373 U.S. 668  


NO. 480.  ARGUED APRIL 23, 1963.  - DECIDED JUNE 3, 1963.  - 305 F.2D
783, REVERSED. 


PETITIONERS, NEGRO STUDENTS IN AN ILLINOIS PUBLIC SCHOOL, BROUGHT SUIT
IN A FEDERAL DISTRICT COURT UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. SEC.
1983, TO VINDICATE THEIR RIGHTS UNDER THE FOURTEENTH AMENDMENT.  THEY
ALLEGED THAT THE ENROLLMENT AT THE SCHOOL CONSISTED OF 251 NEGROES AND
254 WHITES AND THAT, WITH A FEW EXCEPTIONS, THE NEGRO STUDENTS ATTENDED
CLASSES IN ONE PART OF THE SCHOOL, SEPARATE AND APART FROM THE WHITES,
AND WERE COMPELLED TO USE ENTRANCES AND EXITS SEPARATE FROM THE
WHITES.  THEY PRAYED FOR EQUITABLE RELIEF, INCLUDING THEIR REGISTRATION
IN RACIALLY INTEGRATED SCHOOLS.  THE DISTRICT COURT DISMISSED THE
COMPLAINT ON THE GROUND THAT PETITIONERS HAD NOT EXHAUSTED THEIR
ADMINISTRATIVE REMEDIES UNDER ILLINOIS LAW, WHICH FORBIDS RACIAL
SEGREGATION IN PUBLIC SCHOOLS AND PRESCRIBES ADMINISTRATIVE PROCEDURES
FOR ENFORCEMENT OF THE PROHIBITION.  THE COURT OF APPEALS AFFIRMED. 
HELD:  THE JUDGMENT IS REVERSED.  PP. 669-676. 

(A)  RELIEF UNDER THE CIVIL RIGHTS ACT MAY NOT BE DEFEATED THOUGH
RELIEF WAS NOT FIRST SOUGHT UNDER A STATE LAW WHICH PROVIDED A REMEDY. 
MONROE V. PAPE, 365 U.S. 167, P. 671. 

(B)  THE PURPOSES OF 42 U.S.C. SEC. 1983 WERE TO OVERRIDE CERTAIN
KINDS OF STATE LAWS, TO PROVIDE A REMEDY WHERE A STATE LAW IS
INADEQUATE, TO PROVIDE A FEDERAL REMEDY WHERE THE STATE REMEDY, THOUGH
ADEQUATE IN THEORY, IS NOT AVAILABLE IN PRACTICE, AND TO PROVIDE A
REMEDY IN THE FEDERAL COURTS SUPPLEMENTARY TO ANY REMEDY ANY STATE
MIGHT PROVIDE; AND THOSE PURPOSES WOULD BE DEFEATED IF IT WERE HELD
THAT ASSERTION OF A FEDERAL CLAIM IN A FEDERAL COURT MUST AWAIT AN
ATTEMPT TO VINDICATE THE SAME CLAIM IN A STATE COURT.  PP. 671-673. 

(C)  IN THIS CASE, THE RIGHT ALLEGED IS PLAINLY FEDERAL IN ORIGIN AND
NATURE; THERE IS NO UNDERLYING ISSUE OF STATE LAW CONTROLLING THIS
LITIGATION; NOR IS THE FEDERAL RIGHT IN ANY WAY ENTANGLED IN A SKEIN OF
STATE LAW THAT MUST BE UNTANGLED BEFORE THE FEDERAL CASE CAN PROCEED. 
P. 674. 

(D)  IT IS BY NO MEANS CLEAR THAT ILLINOIS LAW PROVIDES PETITIONERS
WITH AN ADMINISTRATIVE REMEDY SUFFICIENTLY ADEQUATE TO PRECLUDE PRIOR
RESORT TO A FEDERAL COURT FOR PROTECTION OF THEIR FEDERAL RIGHTS.  PP.
674-676. 

MCNEESE ET AL. V. BOARD OF EDUCATION FOR COMMUNITY UNIT SCHOOL DISTRICT
187, CAHOKIA, ILLINOIS, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT, WHICH INVOKES THE JURISDICTION OF THE DISTRICT COURT UNDER
THE CIVIL RIGHTS ACT, IS BROUGHT TO VINDICATE THE RIGHTS OF PLAINTIFFS
WHO ARE NEGRO STUDENTS IN THE ILLINOIS PUBLIC SCHOOL SYSTEM.  THE
COMPLAINT ALLEGES THAT CHENOT SCHOOL, ST. CLAIR COUNTY, WAS BUILT AND
ITS ATTENDANCE AREA BOUNDARIES DRAWN IN 1957 SO AS TO MAKE IT
EXCLUSIVELY A NEGRO SCHOOL.  IT ALLEGES THAT DUE TO OVERCROWDED
CONDITIONS IN AN ADJACENT SCHOOL, CENTREVILLE, WHICH IS IN THE SAME
SCHOOL DISTRICT, ALL FIFTH AND SIXTH GRADE CLASSES IN THAT SCHOOL
(CONTAINING 97% WHITE STUDENTS) WERE TRANSFERRED TO CHENOT AND KEPT
SEGREGATED THERE.  IT ALLEGES THAT ENROLLMENT AT CHENOT CONSISTS OF 251
NEGROES AND 254 WHITES, ALL OF THE WHITES BEING IN THE GROUP
TRANSFERRED FROM CENTREVILLE.  IT ALLEGES THAT NEGRO STUDENTS, WITH THE
EXCEPTION OF THE EIGHT TRANSFERRED FROM CENTREVILLE, ATTEND CLASSES IN
ONE PART OF THE SCHOOL, SEPARATE AND APART FROM THE WHITES, AND ARE
COMPELLED TO USE ENTRANCES AND EXITS SEPARATE FROM THE WHITES'.  IT
ALLEGES THAT CHENOT SCHOOL IS A SEGREGATED SCHOOL IN CONFLICT WITH THE
CONSTITUTION OF THE UNITED STATES; AND IT PRAYS FOR EQUITABLE RELIEF,
INCLUDING REGISTRATION OF PLAINTIFFS IN RACIALLY INTEGRATED SCHOOLS
PURSUANT TO A PLAN APPROVED BY THE DISTRICT COURT. 

RESPONDENTS MOVED TO DISMISS THE COMPLAINT ON THE GROUND, INTER ALIA,
THAT THE PLAINTIFFS HAD NOT EXHAUSTED THE ADMINISTRATIVE REMEDIES
PROVIDED BY ILLINOIS LAW.  THE DISTRICT COURT GRANTED THE MOTION.  199
F. SUPP. 403.  THE COURT OF APPEALS AFFIRMED.  305 F.2D 783.  THE CASE
IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED.  371
U.S. 933. 

THE ADMINISTRATIVE REMEDY, WHICH THE LOWER COURTS HELD PLAINTIFFS
MUST FIRST EXHAUST, IS CONTAINED IN THE ILLINOIS SCHOOL CODE.  ILL.
REV. STAT. 1961, C. 122, SEC. 22-19.  BY THAT CODE, 50 RESIDENTS OF A
SCHOOL DISTRICT OR 10%, WHICHEVER IS LESSER, CAN FILE A COMPLAINT WITH
THE SUPERINTENDENT OF PUBLIC INSTRUCTION ALLEGING THAT A PUPIL HAS BEEN
SEGREGATED IN A SCHOOL ON ACCOUNT OF RACE.  THE SUPERINTENDENT, ON
NOTICE TO THE SCHOOL BOARD, PUTS THE COMPLAINT DOWN FOR HEARING WITHIN
A PRESCRIBED TIME.  AFTER HEARING, THE SUPERINTENDENT NOTIFIES THE
PARTIES OF HIS DECISION AND, IF HE DECIDES THAT THE ALLEGATIONS IN THE
COMPLAINT ARE "SUBSTANTIALLY CORRECT," REQUESTS THE ATTORNEY GENERAL TO
BRING SUIT TO RECTIFY THE PRACTICE.  ANY FINAL DECISION OF THE
SUPERINTENDENT MAY BE REVIEWED BY THE COURTS.  MOREOVER, UNDER THE
SCHOOL CODE A SCHOOL DISTRICT MAY NOT FILE A CLAIM FOR STATE AID UNLESS
IT FILES WITH THE SUPERINTENDENT A SWORN STATEMENT THAT THE SCHOOL
DISTRICT HAS COMPLIED WITH THE CONSTITUTIONAL AND STATUTORY PROVISIONS
OUTLAWING SEGREGATION IN THE PUBLIC SCHOOLS.  SEE ILL.  CONST., ART.
VIII, SEC. 1; SCHOOL CODE SECS. 10-22.5, 22-11, 22-12. 

RESPONDENTS, WHILE SAYING THAT ILLINOIS LAW DOES NOT REQUIRE THE
SUPERINTENDENT TO REFUSE TO CERTIFY CLAIMS FOR STATE AID IF HE FINDS
THE PARTICULAR SCHOOL BOARD PRACTICES SEGREGATION, CONTENDS THAT THE
SUPERINTENDENT WOULD HAVE THE POWER TO WITHHOLD HIS CERTIFICATE AND AS
A PRACTICAL MATTER WOULD DO SO. 

WE HAVE PREVIOUSLY INDICATED THAT RELIEF UNDER THE CIVIL RIGHTS ACT
MAY NOT BE DEFEATED BECAUSE RELIEF WAS NOT FIRST SOUGHT UNDER STATE LAW
WHICH PROVIDED A REMEDY.  WE STATED IN MONROE V. PAPE, 365 U.S. 167,
183: 

"IT IS NO ANSWER THAT THE STATE HAS A LAW WHICH IF ENFORCED WOULD
GIVE RELIEF.  THE FEDERAL REMEDY IS SUPPLEMENTARY TO THE STATE REMEDY,
AND THE LATTER NEED NOT BE FIRST SOUGHT AND REFUSED BEFORE THE FEDERAL
ONE IS INVOKED." 

THE CAUSE OF ACTION ALLEGED HERE (FN1) IS PLEADED IN TERMS OF R.S.
SEC. 1979, 42 U.S.C. SEC. 1983, WHICH READS: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICTION THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS." 

THAT IS THE STATUTE THAT WAS INVOLVED IN MONROE V. PAPE, SUPRA; AND
WE REVIEWED ITS HISTORY AT LENGTH IN THAT CASE.  365 U.S., AT 171 ET
SEQ. THE PURPOSES WERE SEVERALFOLD - TO OVERRIDE CERTAIN KINDS OF STATE
LAWS, TO PROVIDE A REMEDY WHERE STATE LAW WAS INADEQUATE, "TO PROVIDE A
FEDERAL REMEDY WHERE THE STATE REMEDY, THOUGH ADEQUATE IN THEORY, WAS
NOT AVAILABLE IN PRACTICE" (ID., 174), AND TO PROVIDE A REMEDY IN THE
FEDERAL COURTS SUPPLEMENTARY TO ANY REMEDY ANY STATE MIGHT HAVE.  ID.,
180-183. 

WE WOULD DEFEAT THOSE PURPOSES IF WE HELD THAT ASSERTION OF A FEDERAL
CLAIM IN A FEDERAL COURT MUST AWAIT AN ATTEMPT TO VINDICATE THE SAME
CLAIM IN A STATE COURT.  THE FIRST CONGRESS CREATED FEDERAL COURTS AS
THE CHIEF - THOUGH NOT ALWAYS THE EXCLUSIVE - TRIBUNALS FOR ENFORCEMENT
OF FEDERAL RIGHTS.  THE HEADS OF JURISDICTION OF THE DISTRICT COURT, AT
THE START LIMITED, (FN2) ARE NOW NUMEROUS.  IN THE BEGINNING THE MAIN
CONCERN WAS THE SECURITY OF COMMERCIAL INTERCOURSE, WHICH "PAROCHIAL
PREJUDICE" MIGHT ENDANGER.  (FN3) 

"MARITIME COMMERCE WAS THEN THE JUGULAR VEIN OF THE THIRTEEN STATES. 
THE NEED FOR A BODY OF LAW APPLICABLE THROUGHOUT THE NATION WAS
RECOGNIZED BY EVERY SHADE OF OPINION IN THE CONSTITUTIONAL CONVENTION. 
FROM THIS RECOGNITION IT WAS AN EASY STEP TO ENTRUST THE DEVELOPMENT OF
SUCH LAW TO A DISTINCTIVE SYSTEM OF COURTS, ADMINISTERING THE SAME
DOCTRINES, FOLLOWING THE SAME PROCEDURE, AND SUBJECT TO THE SAME
NATIONALIST INFLUENCES."  (FN4) 

AS THE BENEFICIARIES OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS
BECAME ARTICULATE AND THE NATIONALIST NEEDS MULTIPLIED, THE HEADS OF
JURISDICTION OF THE DISTRICT COURTS INCREASED, AND THAT INCREASE WAS A
MEASURE OF THE BROADENING FEDERAL DOMAIN IN THE AREA OF INDIVIDUAL
RIGHTS. 

WHERE STRANDS OF LOCAL LAW ARE WOVEN INTO THE CASE THAT IS BEFORE THE
FEDERAL COURT, WE HAVE DIRECTED A DISTRICT COURT TO REFRAIN TEMPORARILY
FROM EXERCISING ITS JURISDICTION UNTIL A SUIT COULD BE BROUGHT IN THE
STATE COURT.  SEE RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496;
THOMPSON V. MAGNOLIA CO., 309 U.S. 478; HARRISON V. NAACP, 360 U.S.
167.  THUS WE HAVE STAYED THE HANDS OF A FEDERAL DISTRICT COURT WHEN IT
SOUGHT TO ENJOIN ENFORCEMENT OF A STATE ADMINISTRATIVE ORDER ENFORCING
STATE LAW, SINCE ANY FEDERAL QUESTION COULD BE REVIEWED WHEN THE CASE
CAME HERE THROUGH THE HIERARCHY OF STATE COURTS.  BURFORD V. SUN OIL
CO., 319 U.S. 315.  THE VARIATIONS ON THE THEME HAVE BEEN NUMEROUS. 
(FN5) 

WE HAVE, HOWEVER, IN THE PRESENT CASE NO UNDERLYING ISSUE OF STATE
LAW CONTROLLING THIS LITIGATION.  THE RIGHT ALLEGED IS AS PLAINLY
FEDERAL IN ORIGIN AND NATURE AS THOSE VINDICATED IN BROWN V. BOARD OF
EDUCATION, 347 U.S. 483.  NOR IS THE FEDERAL RIGHT IN ANY WAY ENTANGLED
IN A SKEIN OF STATE LAW THAT MUST BE UNTANGLED BEFORE THE FEDERAL CASE
CAN PROCEED.  FOR PETITIONERS ASSERT THAT RESPONDENTS HAVE BEEN AND ARE
DEPRIVING THEM OF RIGHTS PROTECTED BY THE FOURTEENTH AMENDMENT.  IT IS
IMMATERIAL WHETHER RESPONDENTS' CONDUCT IS LEGAL OR ILLEGAL AS A MATTER
OF STATE LAW.  MONROE V. PAPE, SUPRA, AT 171-187.  SUCH CLAIMS ARE
ENTITLED TO BE ADJUDICATED IN THE FEDERAL COURTS.  (FN6)  MONROE V.
PAPE, SUPRA, AT 183; GAYLE V. BROWDER, 352 U.S. 903, AFFIRMING 142 F.
SUPP. 707; BORDERS V. RIPPY, 247 F.2D 268, 271.  CF., E.G., LANE V.
WILSON, 307 U.S. 268; SMITH V. ALLWRIGHT, 321 U.S. 649; SCHNELL V.
DAVIS, 336 U.S. 933, AFFIRMING 81 F. SUPP. 872; TURNER V. MEMPHIS, 369
U.S. 350. 

MOREOVER, IT IS BY NO MEANS CLEAR THAT ILLINOIS LAW PROVIDES
PETITIONERS WITH AN ADMINISTRATIVE REMEDY SUFFICIENTLY ADEQUATE TO
PRECLUDE PRIOR RESORT TO A FEDERAL COURT FOR PROTECTION OF THEIR
FEDERAL RIGHTS.  UNDER SEC. 22-19 OF THE ILLINOIS SCHOOL CODE
PETITIONERS COULD FILE A COMPLAINT ALLEGING DISCRIMINATION IF THEY
COULD OBTAIN THE SUBSCRIPTION OF THE LESSER OF 50 RESIDENTS OR 10% OF
THE SCHOOL DISTRICT.  THE SUPERINTENDENT WOULD THEN BE REQUIRED TO HOLD
A HEARING ON THE MATTER.  AND: 

"IF HE SO DETERMINES (THAT THE ALLEGATIONS OF THE COMPLAINT ARE
SUBSTANTIALLY CORRECT), HE SHALL REQUEST THE ATTORNEY GENERAL TO APPLY
TO THE APPROPRIATE CIRCUIT COURT FOR SUCH INJUNCTIVE OR OTHER RELIEF AS
MAY BE NECESSARY TO RECTIFY THE PRACTICE COMPLAINED OF." 

THE SUPERINTENDENT HIMSELF APPARENTLY HAS NO POWER TO ORDER
CORRECTIVE ACTION.  IN OTHER WORDS, HIS "ONLY FUNCTION  ...  IS TO
INVESTIGATE, RECOMMEND AND REPORT  ...  .  (HE) CAN GIVE NO REMEDY ...
.  (HE) CAN MAKE NO CONTROLLING FINDING OF LAW OR FACT  ...  .  (HIS)
RECOMMENDATION NEED NOT BE FOLLOWED BY ANY COURT  ...  OR EXECUTIVE
OFFICER."  UNITED STATES ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S.
196, 210.  IT WOULD BE ANOMALOUS TO CONCLUDE THAT SUCH A REMEDY
FORECLOSES SUIT IN THE FEDERAL COURTS WHEN THE MOST IT COULD PRODUCE IS
A STATE COURT ACTION THAT WOULD HAVE NO SUCH EFFECT.  SEE LANE V.
WILSON, SUPRA, AT 274-275; MONROE V. PAPE, SUPRA. 

RESPONDENTS URGE, HOWEVER, THAT PRIOR RESORT TO THE SUPERINTENDENT IS
NECESSARY BECAUSE BY SEC. 2-3.25 HE CAN REVOKE RECOGNITION OF A SCHOOL
DISTRICT GUILTY OF VIOLATING PUPILS' FOURTEENTH AMENDMENT RIGHTS, AND
RECOGNITION IS A NECESSARY CONDITION TO STATE FINANCIAL AID. 
FURTHERMORE, STATE AID CANNOT BE RECEIVED BY A DISTRICT UNLESS IT
SUBMITS A SWORN STATEMENT THAT IT DOES NOT DISCRIMINATE BETWEEN
STUDENTS "ON ACCOUNT OF COLOR, CREED, RACE OR NATIONALITY."  SECS.  10
22.5, 18-12.  RESPONDENTS SAY THAT THE SUPERINTENDENT WOULD NOT CERTIFY
A DISTRICT FOR STATE AID IF HE DETERMINED THAT ITS SWORN STATEMENT WAS
FALSE.  APPARENTLY NO ILLINOIS CASES HAVE HELD THAT THE SUPERINTENDENT
HAS AUTHORITY TO WITHHOLD FUNDS ONCE HE HAS RECEIVED AN AFFIDAVIT FROM
THE DISTRICT, EVEN IF HE DETERMINES THAT THE AFFIDAVIT IS FALSE.  IN
ANY EVENT, THE WITHHOLDING OF STATE AID IS AT BEST ONLY AN INDIRECT
SANCTION OF FOURTEENTH AMENDMENT RIGHTS.  WHEN FEDERAL RIGHTS ARE
SUBJECT TO SUCH TENUOUS PROTECTION, PRIOR RESORT TO A STATE PROCEEDING
IS NOT NECESSARY.  SEE HILLSBOROUGH V. CROMWELL, 326 U.S. 620, 625
626.  REVERSED. 

FN1  FEDERAL JURISDICTION IS ASSERTED UNDER 28 U.S.C. SEC. 1343,
WHICH IN MATERIAL PART READS AS FOLLOWS: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION AUTHORIZED BY LAW TO BE COMMENCED BY ANY PERSON: 

     *         *         *         *         * 

"(3)  TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,
STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT,
PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED STATES
OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF CITIZENS OR OF
ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES." 

FN2  GENERAL "ARISING UNDER" JURISDICTION WAS NOT CONFERRED ON
FEDERAL COURTS OF FIRST INSTANCE UNTIL PASSAGE OF THE JUDICIARY ACT OF
1875, 18 STAT. 470.  SEE HART AND WECHSLER, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM, 727-733. 

FN3  FRANKFURTER AND LANDIS, THE BUSINESS OF THE SUPREME COURT
(1928), PP. 8-9. 

FN4  ID., P. 7. 

FN5  SEE NOTE, 59 COL. L. REV. 749.  YET WHERE CONGRESS CREATES A
HEAD OF FEDERAL JURISDICTION WHICH ENTAILS A RESPONSIBILITY TO
ADJUDICATE THE CLAIM ON THE BASIS OF STATE LAW, VIZ., DIVERSITY OF
CITIZENSHIP, AS WAS TRUE IN MEREDITH V. WINTER HAVEN, 320 U.S. 228, WE
HOLD THAT DIFFICULTIES AND PERPLEXITIES OF STATE LAW ARE NO REASON FOR
REFERRAL OF THE PROBLEM TO THE STATE COURT: 

"WE ARE POINTED TO NO PUBLIC POLICY OR INTEREST WHICH WOULD BE SERVED
BY WITHHOLDING FROM PETITIONERS THE BENEFIT OF THE JURISDICTION WHICH
CONGRESS HAS CREATED WITH THE PURPOSE THAT IT SHOULD BE AVAILED OF AND
EXERCISED SUBJECT ONLY TO SUCH LIMITATIONS AS TRADITIONALLY JUSTIFY
COURTS IN DECLINING TO EXERCISE THE JURISDICTION WHICH THEY POSSESS. 
TO REMIT THE PARTIES TO THE STATE COURTS IS TO DELAY FURTHER THE
DISPOSITION OF THE LITIGATION WHICH HAS BEEN PENDING FOR MORE THAN TWO
YEARS AND WHICH IS NOW READY FOR DECISION.  IT IS TO PENALIZE
PETITIONERS FOR RESORTING TO A JURISDICTION WHICH THEY WERE ENTITLED TO
INVOKE, IN THE ABSENCE OF ANY SPECIAL CIRCUMSTANCES WHICH WOULD WARRANT
A REFUSAL TO EXERCISE IT."  ID., P. 237. 

AND WE HELD IN KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, THAT,
APART FROM CONTESTS OVER A RES (PENNSYLVANIA V. WILLIAMS, 294 U.S.
176), A SUIT IN PERSONAM BASED ON DIVERSITY OF CITIZENSHIP COULD
CONTINUE IN THE FEDERAL COURT EVEN THOUGH A SUIT ON THE SAME CAUSE OF
ACTION HAD BEEN STARTED IN THE STATE COURT: 

"EACH COURT IS FREE TO PROCEED IN ITS OWN WAY AND IN ITS OWN TIME,
WITHOUT REFERENCE TO THE PROCEEDINGS IN THE OTHER COURT.  WHENEVER A
JUDGMENT IS RENDERED IN ONE OF THE COURTS AND PLEADED IN THE OTHER, THE
EFFECT OF THAT JUDGMENT IS TO BE DETERMINED BY THE APPLICATION OF THE
PRINCIPLES OF RES ADJUDICATA BY THE COURT IN WHICH THE ACTION IS STILL
PENDING IN THE ORDERLY EXERCISE OF ITS JURISDICTION, AS IT WOULD
DETERMINE ANY OTHER QUESTION OF FACT OR LAW ARISING IN THE PROGRESS OF
THE CASE.  THE RULE, THEREFORE, HAS BECOME GENERALLY ESTABLISHED THAT
WHERE THE ACTION FIRST BROUGHT IS IN PERSONAM AND SEEKS ONLY A PERSONAL
JUDGMENT, ANOTHER ACTION FOR THE SAME CAUSE IN ANOTHER JURISDICTION IS
NOT PRECLUDED."  ID., P. 230.    FN6  AS WELL STATED BY JUDGE MURRAH IN
STAPLETON V. MITCHELL, 60 F. SUPP. 51, 55, APPEAL DISMISSED PURSUANT TO
STIPULATION, 326 U.S. 690:  "WE YET LIKE TO BELIEVE THAT WHEREVER THE
FEDERAL COURTS SIT, HUMAN RIGHTS UNDER THE FEDERAL CONSTITUTION ARE
ALWAYS A PROPER SUBJECT FOR ADJUDICATION, AND THAT WE HAVE NOT THE
RIGHT TO DECLINE THE EXERCISE OF THAT JURISDICTION SIMPLY BECAUSE THE
RIGHTS ASSERTED MAY BE ADJUDICATED IN SOME OTHER FORUM." 

MR. JUSTICE HARLAN, DISSENTING. 

IN BURFORD V. SUN OIL CO., 319 U.S. 315, 317-318, THIS COURT SAID: 

"ALTHOUGH A FEDERAL EQUITY COURT DOES HAVE JURISDICTION OF A
PARTICULAR PROCEEDING, IT MAY, IN ITS SOUND DISCRETION, WHETHER ITS
JURISDICTION IS INVOKED ON THE GROUND OF DIVERSITY OF CITIZENSHIP OR
OTHERWISE, 'REFUSE TO ENFORCE OR PROTECT LEGAL RIGHTS, THE EXERCISE OF
WHICH MAY BE PREJUDICAL TO THE PUBLIC INTEREST'; (CITING UNITED STATES
V. DERN, 289 U.S. 352, 360) FOR IT 'IS IN THE PUBLIC INTEREST THAT
FEDERAL COURTS OF EQUITY SHOULD EXERCISE THEIR DISCRETIONARY POWER WITH
PROPER REGARD FOR THE RIGHTFUL INDEPENDENCE OF STATE GOVERNMENTS IN
CARRYING OUT THEIR DOMESTIC POLICY'  ...  . (CITING PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176, 185.)  ASSUMING THAT THE FEDERAL DISTRICT COURT
HAD JURISDICTION, SHOULD IT, AS A MATTER OF SOUND EQUITABLE DISCRETION,
HAVE DECLINED TO EXERCISE THAT JURISDICTION HERE?" 

THIS WISE APPROACH HAS BEEN FOLLOWED BY THE LOWER FEDERAL COURTS IN
"SCHOOL SEGREGATION" CASES (SEE, E.G., CARSON V. BOARD OF EDUCATION,
227 F.2D 789; CARSON V. WARLICK, 238 F.2D 724; COVINGTON V. EDWARDS,
264 F.2D 780; HOLT V. RALEIGH CITY BOARD OF EDUCATION, 265 F.2D 95;
PARHAM V. DOVE, 271 F.2D 132; SHEPARD V. BOARD OF EDUCATION, 207 F.
SUPP. 341), AND MORE THAN ONCE THIS COURT HAS REFUSED TO INTERFERE (SEE
CARSON V. WARLICK, SUPRA, CERT. DENIED, 353 U.S. 910; HOLT V. RALEIGH
CITY BOARD OF EDUCATION, SUPRA, CERT. DENIED, 361 U.S. 818).  (FN1)
FOR SEVERAL REASONS I THINK THE PRESENT CASE IS PECULIARLY ONE WHERE,
AS WAS SAID IN BURFORD (AT P. 334), "A SOUND RESPECT FOR THE
INDEPENDENCE OF STATE ACTION REQUIRES THE FEDERAL EQUITY COURT TO STAY
ITS HAND." 

1.  IT IS APPARENT ON THE FACE OF THE COMPLAINT THAT THIS CASE IS
QUITE ATYPICAL OF OTHERS THAT HAVE COME BEFORE THIS COURT, IN THAT THE
CHENOT SCHOOL'S STUDENT BODY INCLUDES BOTH WHITE AND NEGRO STUDENTS -
IN ALMOST EQUAL NUMBERS - AND IN THAT NONE OF THE PETITIONERS (OR
OTHERS WHOM THEY PURPORT TO REPRESENT) HAS BEEN REFUSED ENROLLMENT IN
THE SCHOOL.  THE ALLEGED DISCRIMINATORY PRACTICES RELATE, RATHER, TO
THE MANNER IN WHICH THIS PARTICULAR SCHOOL DISTRICT WAS FORMED AND TO
THE WAY IN WHICH THE INTERNAL AFFAIRS OF THE SCHOOL ARE ADMINISTERED. 
THESE ARE MATTERS IN WHICH THE FEDERAL COURTS SHOULD NOT INITIALLY
BECOME EMBROILED.  THEIR EXPLORATION AND CORRECTION, IF NEED BE, ARE
MUCH BETTER LEFT TO LOCAL AUTHORITY IN THE FIRST INSTANCE. 

2.  THERE IS NOTHING THAT LEAVES ROOM FOR SERIOUS DOUBT AS TO THE
EFFICACY OF THE ADMINISTRATIVE REMEDY WHICH ILLINOIS HAS PROVIDED. 
(THE TEXT OF THE STATUTE IS SET FORTH IN THE APPENDIX TO THIS
OPINION.)  THE FACT THAT THE SUPERINTENDENT OF PUBLIC INSTRUCTION
HIMSELF POSSESSES NO CORRECTIVE POWER AND THAT HE CAN ONLY "REQUEST"
THE ATTORNEY GENERAL TO ENFORCE HIS FINDINGS BY APPROPRIATE COURT
PROCEEDINGS DOES NOT, IN MY OPINION, LEAVE THE ADMINISTRATIVE
PROCEEDING SANCTIONLESS (COMPARE UNITED STATES ALKALI EXPORT ASSN. V.
UNITED STATES, 325 U.S. 196), OR, AS IN LANE V. WILSON, 307 U.S. 268,
SERVE TO REMOVE THIS CASE FROM THE "EXHAUSTION" REQUIREMENTS OF
BURFORD.  IF THE SUPERINTENDENT REFUSES TO ACTIVATE THE ATTORNEY
GENERAL, HIS DECISION (AS WITH A CONTRARY ONE) IS SUBJECT TO JUDICIAL
REVIEW.  IT IS NOT SUGGESTED THAT THE ATTORNEY GENERAL COULD NOT ALSO
BE COMPELLED TO ACT IF HE IMPROPERLY REFUSED TO DO SO.  AND IT MUST OF
COURSE BE ASSUMED THAT THESE TWO RESPONSIBLE PUBLIC OFFICIALS WILL
FULLY PERFORM THEIR SWORN DUTY.  MOREOVER, THE TERMS OF THE STATUTE
ITSELF WHICH, AMONG OTHER THINGS, PROVIDES FOR THE USE OF COMPULSORY
PROCESS, STRONGLY ATTEST TO THE FACT THAT THE ADMINISTRATIVE REMEDY WAS
INTENDED AS SERIOUS BUSINESS AND NOT AS AN EXERCISE THAT MIGHT ABORT
BEFORE FULFILLMENT. 

NOR CAN THIS ADMINISTRATIVE REMEDY OTHERWISE BE REGARDED AS
DEFICIENT.  THE FACT THAT IT TAKES A MINIMAL NUMBER OF SCHOOL DISTRICT
RESIDENTS TO INITIATE A COMPLAINT BEFORE THE SUPERINTENDENT CAN HARDLY
BE DEEMED AN UNTOWARD OR UNDULY BURDENSOME REQUIREMENT.  AND THE
PROCEEDING SURELY FINDS A STRONG PRACTICAL EVEN THOUGH "INDIRECT
SANCTION" (ANTE, P. 676) IN THE POWER OF THE SUPERINTENDENT AT LEAST TO
MAKE IT MORE DIFFICULT FOR A SCHOOL, GUILTY OF RACIAL DISCRIMINATION,
TO OBTAIN STATE FINANCIAL AID - EITHER BY REVOKING "RECOGNITION" OF THE
SCHOOL DISTRICT (ANTE, P. 675) OR, AS SUGGESTED TO US BY RESPONDENTS'
ATTORNEYS, BY REFUSING TO CERTIFY SUCH A SCHOOL FOR STATE AID.  (FN2) 

3.  FINALLY, WE SHOULD BE SLOW TO HOLD UNAVAILING AN ADMINISTRATIVE
REMEDY AFFORDED BY A STATE WHICH LONG BEFORE BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, HAD OUTLAWED BOTH BY ITS CONSTITUTION AND
STATUTES RACIAL DISCRIMINATION IN ITS PUBLIC SCHOOLS, (FN3) AND WHICH
SINCE BROWN HAS PASSED THE FURTHER IMPLEMENTING LEGISLATION DRAWN IN
QUESTION IN THIS LITIGATION (APPENDIX).  FOR MYSELF I AM UNWILLING TO
ASSUME THAT THESE SOLEMN CONSTITUTIONAL AND LEGISLATIVE PRONOUNCEMENTS
OF ILLINOIS MEAN ANYTHING LESS THAN WHAT THEY SAY OR THAT THE RIGHTS
ASSURED BY THEM AND BY THE FOURTEENTH AMENDMENT WILL NOT BE FULLY AND
PROMPTLY VINDICATED BY THE STATE IF PETITIONERS CAN MAKE GOOD THEIR
GRIEVANCES. 

I WOULD AFFIRM. 

FN1  CASES SUCH AS MANNINGS V. BOARD OF PUBLIC INSTRUCTION, 277 F.2D
370, AND BORDERS V. RIPPY, 247 F.2D 268 (WHERE THE SCHOOL BOARDS HAD
TAKEN NO AFFIRMATIVE STEPS WHATEVER TO DESEGREGATE THE SCHOOLS), AND
ORLEANS PARISH SCHOOL BOARD V. BUSH, 242 F.2D 156, AND GIBSON V. BOARD
OF PUBLIC INSTRUCTION, 246 F.2D 913 (ARISING IN STATES HAVING SCHOOL
SEGREGATION STATUTES ON THEIR BOOKS), ARE WIDE OF THE MARK IN THE
CIRCUMSTANCES OF THIS CASE. 

FN2  SECTION 18-12 OF THE SCHOOL CODE OF ILLINOIS PROVIDES IN PART: 

"NO STATE AID CLAIM MAY BE FILED FOR ANY DISTRICT UNLESS THE CLERK OR
SECRETARY OF THE SCHOOL BOARD EXECUTES AND FILES WITH THE
SUPERINTENDENT OF PUBLIC INSTRUCTION, ON FORMS PRESCRIBED BY HIM, A
SWORN STATEMENT THAT THE DISTRICT HAS COMPLIED WITH THE REQUIREMENTS OF
OF COLOR, CREED, RACE OR NATIONALITY." 

FN3  AS EARLY AS 1901 THE SUPREME COURT OF ILLINOIS IN PEOPLE V.
MAYOR OF ALTON, 193 ILL. 309, 312, 61 N.E. 1077, 1078, CONSTRUING ART.
VIII, SEC. 1, OF THE ILLINOIS CONSTITUTION, HELD: 

"THE COMPLAINT OF THE RELATOR IS THAT HIS CHILDREN HAVE BEEN
EXCLUDED, ON ACCOUNT OF THEIR COLOR, FROM THE PUBLIC SCHOOL OF SAID
CITY LOCATED NEAR HIS RESIDENCE AND BEEN REQUIRED TO ATTEND A SCHOOL
LOCATED A MILE AND A HALF DISTANT FROM HIS RESIDENCE, ESTABLISHED
EXCLUSIVELY FOR COLORED CHILDREN.  SUCH COMPLAINT IS NOT MET BY SHOWING
THAT THE SCHOOLS ESTABLISHED FOR COLORED CHILDREN IN SAID CITY EQUAL OR
SURPASS IN EDUCATIONAL FACILITIES THE SCHOOLS ESTABLISHED IN SAID CITY
FOR WHITE CHILDREN.  UNDER THE LAW THE COMMON COUNCIL OF SAID CITY HAD
NO RIGHT TO ESTABLISH DIFFERENT SCHOOLS FOR THE WHITE CHILDREN AND
COLORED CHILDREN OF SAID CITY AND TO EXCLUDE THE COLORED CHILDREN FROM
THE SCHOOLS ESTABLISHED FOR WHITE CHILDREN, EVEN THOUGH THE SCHOOLS
ESTABLISHED FOR COLORED CHILDREN FURNISHED EDUCATIONAL FACILITIES EQUAL
OR SUPERIOR TO THOSE OF THE SCHOOLS ESTABLISHED FOR WHITE CHILDREN." 

1945 THAT: 

"  ...  NO PUPIL SHALL BE EXCLUDED FROM OR SEGREGATED IN ANY SUCH
SCHOOL ON ACCOUNT OF HIS COLOR, RACE OR NATIONALITY." 

PROVIDE: 

"ANY SCHOOL OFFICER OR OTHER PERSON WHO EXCLUDES OR AIDS IN EXCLUDING
FROM THE PUBLIC SCHOOLS, ON ACCOUNT OF COLOR, ANY CHILD WHO IS ENTITLED
TO THE BENEFITS OF SUCH SCHOOL SHALL BE FINED NOT LESS THAN $5 NOR MORE
THAN $100." 

"WHOEVER BY THREAT, MENACE OR INTIMIDATION PREVENTS ANY COLORED CHILD
ENTITLED TO ATTEND A PUBLIC SCHOOL IN THIS STATE FROM ATTENDING SUCH
SCHOOL SHALL BE FINED NOT EXCEEDING $25." 

     APPENDIX TO OPINION OF MR. JUSTICE HARLAN. 


UPON THE FILING OF A COMPLAINT WITH THE SUPERINTENDENT OF PUBLIC
INSTRUCTION, EXECUTED IN DUPLICATE AND SUBSCRIBED WITH THE NAMES AND
ADDRESSES OF AT LEAST 50 RESIDENTS OF A SCHOOL DISTRICT OR 10%,
WHICHEVER IS LESSER, ALLEGING THAT ANY PUPIL HAS BEEN EXCLUDED FROM OR
SEGREGATED IN ANY SCHOOL ON ACCOUNT OF HIS COLOR, RACE, NATIONALITY,
RELIGION OR RELIGIOUS AFFILIATION, OR THAT ANY EMPLOYEE OF OR APPLICANT
FOR EMPLOYMENT OR ASSIGNMENT WITH ANY SUCH SCHOOL DISTRICT HAS BEEN
QUESTIONED CONCERNING HIS COLOR, RACE, NATIONALITY, RELIGION OR
RELIGIOUS AFFILIATION OR SUBJECTED TO DISCRIMINATION BY REASON THEREOF,
BY OR ON BEHALF OF THE SCHOOL BOARD OF SUCH DISTRICT, THE
SUPERINTENDENT OF PUBLIC INSTRUCTION SHALL PROMPTLY MAIL A COPY OF SUCH
COMPLAINT TO THE SECRETARY OR CLERK OF SUCH SCHOOL BOARD. 

THE SUPERINTENDENT OF PUBLIC INSTRUCTION SHALL FIX A DATE, NOT LESS
THAN 20 NOR MORE THAN 30 DAYS FROM THE DATE OF THE FILING OF SUCH
COMPLAINT, FOR A HEARING UPON THE ALLEGATIONS THEREIN.  HE MAY ALSO FIX
A DATE FOR A HEARING WHENEVER HE HAS REASON TO BELIEVE THAT SUCH
DISCRIMINATION MAY EXIST IN ANY SCHOOL DISTRICT.  REASONABLE NOTICE OF
THE TIME AND PLACE OF SUCH HEARING SHALL BE MAILED TO THE SECRETARY OR
CLERK OF THE SCHOOL BOARD AND TO THE FIRST SUBSCRIBER TO SUCH
COMPLAINT. 

THE SUPERINTENDENT OF PUBLIC INSTRUCTION MAY DESIGNATE AN ASSISTANT
TO CONDUCT SUCH HEARING AND RECEIVE TESTIMONY CONCERNING THE SITUATION
COMPLAINED OF.  THE COMPLAINANTS MAY BE REPRESENTED AT SUCH HEARING BY
ONE OF THEIR NUMBER OR BY COUNSEL.  EACH PARTY SHALL HAVE THE PRIVILEGE
OF CROSS EXAMINING WITNESSES.  THE SUPERINTENDENT OF PUBLIC INSTRUCTION
OR THE HEARING OFFICER APPOINTED BY HIM SHALL HAVE THE POWER TO
SUBPOENA WITNESSES, COMPEL THEIR ATTENDANCE, AND REQUIRE THE PRODUCTION
OF EVIDENCE RELATING TO ANY RELEVANT MATTER UNDER THIS ACT.  ANY
CIRCUIT OR SUPERIOR COURT OF THIS STATE, OR ANY JUDGE THEREOF, EITHER
IN TERM TIME OR VACATION, UPON THE APPLICATION OF THE SUPERINTENDENT OF
PUBLIC INSTRUCTION OR THE HEARING OFFICER APPOINTED BY HIM, MAY, IN ITS
OR HIS DISCRETION, COMPEL THE ATTENDANCE OF WITNESSES, THE PRODUCTION
OF BOOKS, PAPERS, RECORDS OR MEMORANDA AND THE GIVING OF TESTIMONY
BEFORE THE SUPERINTENDENT OF PUBLIC INSTRUCTION OR THE HEARING OFFICER
APPOINTED BY HIM CONDUCTING AN INVESTIGATION OR HOLDING A HEARING
AUTHORIZED BY THIS ACT, BY AN ATTACHMENT FOR CONTEMPT, OR OTHERWISE, IN
THE SAME MANNER AS PRODUCTION OF EVIDENCE MAY BE COMPELLED BEFORE SAID
COURT.  THE SUPERINTENDENT OF PUBLIC INSTRUCTION OR THE HEARING OFFICER
APPOINTED BY HIM MAY CAUSE THE DEPOSITIONS OF WITNESSES WITHIN THE
STATE TO BE TAKEN IN THE MANNER PRESCRIBED BY LAW FOR LIKE DEPOSITIONS
IN CIVIL ACTIONS IN COURTS OF THIS STATE, AND TO THAT END COMPEL THE
ATTENDANCE OF WITNESSES AND THE PRODUCTION OF BOOKS, PAPERS, RECORDS OR
MEMORANDA.  ALL TESTIMONY SHALL BE TAKEN UNDER OATH ADMINISTERED BY THE
HEARING OFFICER, BUT THE FORMAL RULES PERTAINING TO EVIDENCE IN
JUDICIAL PROCEEDINGS SHALL NOT APPLY.  THE SUPERINTENDENT OF PUBLIC
INSTRUCTION SHALL PROVIDE A COMPETENT REPORTER TO TAKE NOTES OF ALL
TESTIMONY.  EITHER PARTY DESIRING A TRANSCRIPT OF THE HEARING SHALL PAY
FOR THE COST OF SUCH TRANSCRIPT.  THE HEARING OFFICER SHALL REPORT A
SUMMARY OF THE TESTIMONY TO THE SUPERINTENDENT OF PUBLIC INSTRUCTION
WHO SHALL DETERMINE WHETHER THE ALLEGATIONS OF THE COMPLAINT ARE
SUBSTANTIALLY CORRECT.  THE SUPERINTENDENT OF PUBLIC INSTRUCTION SHALL
NOTIFY BOTH PARTIES OF HIS DECISION.  IF HE SO DETERMINES, HE SHALL
REQUEST THE ATTORNEY GENERAL TO APPLY TO THE APPROPRIATE CIRCUIT COURT
FOR SUCH INJUNCTIVE OR OTHER RELIEF AS MAY BE NECESSARY TO RECTIFY THE
PRACTICE COMPLAINED OF. 

THE PROVISIONS OF THE "ADMINISTRATIVE REVIEW ACT", APPROVED MAY 8,
1945, AND ALL AMENDMENTS AND MODIFICATIONS THEREOF AND THE RULES
ADOPTED PURSUANT THERETO SHALL APPLY TO AND GOVERN ALL PROCEEDINGS FOR
THE JUDICIAL REVIEW OF ANY FINAL DECISION RENDERED BY THE
SUPERINTENDENT OF PUBLIC INSTRUCTION PURSUANT TO THIS SECTION. 
..END :










GOSS V. BOARD OF EDUCATION OF KNOXVILLE, TENNESSEE 373 U.S. 683 


NO. 217.  ARGUED MARCH 20-21, 1963.  - DECIDED JUNE 3, 1963.  - 301 F.2D
164, 828, REVERSED IN PART AND CAUSES REMANDED. 


NEGRO PUPILS AND THEIR PARENTS SUED IN TWO FEDERAL DISTRICT COURTS IN
TENNESSEE TO DESEGREGATE RACIALLY SEGREGATED PUBLIC SCHOOLS.  IN EACH
CASE, A DESEGREGATION PLAN SUBMITTED TO THE DISTRICT COURT BY THE
SCHOOL BOARD PROVIDED FOR THE REZONING OF SCHOOL DISTRICTS WITHOUT
REFERENCE TO RACE; BUT EACH PLAN CONTAINED A TRANSFER PROVISION UNDER
WHICH ANY STUDENT, UPON REQUEST, WOULD BE PERMITTED, SOLELY ON THE
BASIS OF HIS OWN RACE AND THE RACIAL COMPOSITION OF THE SCHOOL TO WHICH
HE WAS ASSIGNED BY VIRTUE OF REZONING, TO TRANSFER FROM SUCH SCHOOL,
WHERE HE WOULD BE IN THE RACIAL MINORITY, BACK TO HIS FORMER SEGREGATED
SCHOOL, WHERE HIS RACE WOULD BE IN THE MAJORITY.  THESE PLANS WERE
APPROVED BY THE RESPECTIVE DISTRICT COURTS AND THE COURT OF APPEALS. 
HELD:  INSOFAR AS THEY APPROVE SUCH TRANSFER PROVISIONS, THE JUDGMENTS
OF THE COURT OF APPEALS ARE REVERSED, SINCE SUCH TRANSFER PLANS ARE
BASED ON RACIAL FACTORS WHICH INEVITABLY WOULD LEAD TOWARD SEGREGATION
OF STUDENTS BY RACE, CONTRARY TO THIS COURT'S ADMONITION IN BROWN V.
BOARD OF EDUCATION, 349 U.S. 294.  PP. 684-689. 

GOSS ET AL. V. BOARD OF EDUCATION OF KNOXVILLE, TENNESSEE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI (371 U.S. 811) LIMITED TO THE QUESTION WHETHER
PETITIONERS, NEGRO SCHOOL CHILDREN SEEKING DESEGREGATION OF THE PUBLIC
SCHOOL SYSTEMS OF KNOXVILLE, TENNESSEE (THE GOSS CASE), AND DAVIDSON
COUNTY, TENNESSEE, AN AREA ADJACENT TO NASHVILLE (THE MAXWELL CASE),
ARE DEPRIVED OF RIGHTS UNDER THE FOURTEENTH AMENDMENT.  THE QUESTION
CENTERS AROUND SUBSTANTIALLY SIMILAR TRANSFER PROVISIONS INCORPORATED
IN FORMAL DESEGREGATION PLANS ADOPTED BY THE RESPECTIVE LOCAL SCHOOL
BOARDS PURSUANT TO COURT ORDERS.  THE CLAIM IS THAT THE TRANSFER
PROGRAMS ARE INVALID BECAUSE THEY ARE BASED SOLELY ON RACE AND TEND TO
PERPETUATE THE PRE-EXISTING RACIALLY SEGREGATED SCHOOL SYSTEM.  UNDER
THE OVER-ALL DESEGREGATION PLANS PRESENTED TO THE TRIAL COURTS, SCHOOL
DISTRICTS WOULD BE REZONED WITHOUT REFERENCE TO RACE.  HOWEVER, BY THE
TERMS OF THE TRANSFER PROVISIONS, A STUDENT, UPON REQUEST, WOULD BE
PERMITTED, SOLELY ON THE BASIS OF HIS OWN RACE AND THE RACIAL
COMPOSITION OF THE SCHOOL TO WHICH HE HAS BEEN ASSIGNED BY VIRTUE OF
REZONING, TO TRANSFER FROM SUCH SCHOOL, WHERE HE WOULD BE IN THE RACIAL
MINORITY, BACK TO HIS FORMER SEGREGATED SCHOOL WHERE HIS RACE WOULD BE
IN THE MAJORITY.  THE APPROPRIATE DISTRICT COURTS AND THE COURT OF
APPEALS APPROVED THE TRANSFER PLANS.   301 F.2D 164, 301 F.2D 828.  THE
TRANSFER PLANS BEING BASED SOLELY ON RACIAL FACTORS WHICH, UNDER THEIR
TERMS, INEVITABLY LEAD TOWARD SEGREGATION OF THE STUDENTS BY RACE, WE
CONCLUDE THAT THEY RUN COUNTER TO THE ADMONITION OF BROWN V. BOARD OF
EDUCATION, 349 U.S. 294, 301 (1955), WHEREIN THE DISTRICT COURTS WERE
DIRECTED TO "CONSIDER THE ADEQUACY OF ANY PLANS" PROPOSED BY SCHOOL
AUTHORITIES "TO EFFECTUATE A  ...  RACIALLY NONDISCRIMINATORY SCHOOL
SYSTEM."  OUR CONCLUSION HERE LEADS TO A REVERSAL OF THE JUDGMENTS OF
THE COURT OF APPEALS TO THE EXTENT THEY APPROVE THE TRANSFER PROVISIONS
OF RESPONDENT BOARDS IN EACH OF THE CASES.  THE ONLY QUESTION WITH
WHICH WE ARE HERE CONCERNED RELATES SOLELY TO THE TRANSFER PROVISIONS,
AND WE ARE NOT CALLED UPON EITHER TO DISCUSS OR TO PASS ON THE OTHER
PROVISIONS OF THE DESEGREGATION PLANS.  (FN1)

                                   I. 

THESE CASES WERE BROUGHT BY NEGRO PUBLIC SCHOOL PUPILS AND THEIR
PARENTS AS CLASS ACTIONS AGAINST THE RESPECTIVE SCHOOL AUTHORITIES. 
THEY CHALLENGED, AMONG OTHER POINTS IN THE DESEGREGATION PLANS NOT HERE
RELEVANT, THE TRANSFER PROVISIONS WHICH PERMITTED A PUPIL TO TRANSFER,
UPON REQUEST, FROM THE ZONE OF HIS RESIDENCE TO ANOTHER SCHOOL.  THE
TRANSFER PLANS ARE ESSENTIALLY THE SAME, EACH CONTAINING, IN ADDITION
TO THE PROVISIONS AT ISSUE HERE, GENERAL PROVISIONS PROVIDING FOR
TRANSFERS ON A SHOWING OF "GOOD CAUSE."  (FN2)  THE CRUCIAL PROVISION,
HOWEVER, PRESENT IN SOMEWHAT THE SAME FORM IN EACH PLAN, IS EXEMPLIFIED
BY SEC. 6 OF THE KNOXVILLE PLAN: 

"6.  THE FOLLOWING WILL BE REGARDED AS SOME OF THE VALID CONDITIONS
TO SUPPORT REQUESTS FOR TRANSFER: 

"A.  WHEN A WHITE STUDENT WOULD OTHERWISE BE REQUIRED TO ATTEND A
SCHOOL PREVIOUSLY SERVING COLORED STUDENTS ONLY: 

"B.  WHEN A COLORED STUDENT WOULD OTHERWISE BE REQUIRED TO ATTEND A
SCHOOL PREVIOUSLY SERVING WHITE STUDENTS ONLY: 

"C.  WHEN A STUDENT WOULD OTHERWISE BE REQUIRED TO ATTEND A SCHOOL
WHERE THE MAJORITY OF STUDENTS OF THAT SCHOOL OR IN HIS OR HER GRADE
ARE OF A DIFFERENT RACE." 

THIS PROVISION IS ATTACKED AS PROVIDING RACIAL FACTORS AS VALID
CONDITIONS TO SUPPORT TRANSFERS WHICH BY DESIGN AND OPERATION WOULD
PERPETUATE RACIAL SEGREGATION.  IT IS ALSO SAID THAT NO SHOWING IS MADE
THAT THE TRANSFER PROVISIONS ARE ESSENTIAL TO EFFECTUATION OF
DESEGREGATION AND THAT OTHER PROCEDURES ARE AVAILABLE. 

    II. 

IT IS READILY APPARENT THAT THE TRANSFER SYSTEM PROPOSED LENDS ITSELF
TO PERPETUATION OF SEGREGATION.  INDEED, THE PROVISIONS CAN WORK ONLY
TOWARD THAT END.  WHILE TRANSFERS ARE AVAILABLE TO THOSE WHO CHOOSE TO
ATTEND SCHOOL WHERE THEIR RACE IS IN THE MAJORITY, THERE IS NO
PROVISION WHEREBY A STUDENT MIGHT TRANSFER UPON REQUEST TO A SCHOOL IN
WHICH HIS RACE IS IN A MINORITY, UNLESS HE QUALIFIES FOR A "GOOD CAUSE"
TRANSFER.  AS THE SUPERINTENDENT OF DAVIDSON COUNTY'S SCHOOLS AGREED,
THE EFFECT OF THE RACIAL TRANSFER PLAN WAS "TO PERMIT A CHILD (OR HIS
PARENTS) TO CHOOSE SEGREGATION OUTSIDE OF HIS ZONE BUT NOT TO CHOOSE
INTEGRATION OUTSIDE OF HIS ZONE."  HERE THE RIGHT OF TRANSFER, WHICH
OPERATES SOLELY ON THE BASIS OF A RACIAL CLASSIFICATION, IS A ONE-WAY
TICKET LEADING TO BUT ONE DESTINATION, I.E., THE MAJORITY RACE OF THE
TRANSFEREE AND CONTINUED SEGREGATION.   THIS COURT HAS DECIDED THAT
STATE-IMPOSED SEPARATION IN PUBLIC SCHOOLS IS INHERENTLY UNEQUAL AND
RESULTS IN DISCRIMINATION IN VIOLATION OF THE FOURTEENTH AMENDMENT. 
BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954).  OUR TASK THEN IS TO
DECIDE WHETHER THESE TRANSFER PROVISIONS ARE LIKEWISE
UNCONSTITUTIONAL.  IN DOING SO, WE NOTE THAT IF THE TRANSFER PROVISIONS
WERE MADE AVAILABLE TO ALL STUDENTS REGARDLESS OF THEIR RACE AND
REGARDLESS AS WELL OF THE RACIAL COMPOSITION OF THE SCHOOL TO WHICH HE
REQUESTED TRANSFER WE WOULD HAVE AN ENTIRELY DIFFERENT CASE.  PUPILS
COULD THEN AT THEIR OPTION (OR THAT OF THEIR PARENTS) CHOOSE, ENTIRELY
FREE OF ANY IMPOSED RACIAL CONSIDERATIONS, TO REMAIN IN THE SCHOOL OF
THEIR ZONE OR TO TRANSFER TO ANOTHER. 

                                   III. 

CLASSIFICATIONS BASED ON RACE FOR PURPOSES OF TRANSFERS BETWEEN
PUBLIC SCHOOLS, AS HERE, VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  AS THE COURT SAID IN STEELE V. LOUISVILLE &
NASHVILLE R. CO., 323 U.S. 192, 203 (1944), RACIAL CLASSIFICATIONS ARE
"OBVIOUSLY IRRELEVANT AND INVIDIOUS."  THE CASES OF THIS COURT REFLECT
A VARIETY OF INSTANCES IN WHICH RACIAL CLASSIFICATIONS HAVE BEEN HELD
TO BE INVALID, E.G., PUBLIC PARKS AND PLAYGROUNDS, WATSON V. CITY OF
MEMPHIS, ANTE, P. 526 (1963); TRESPASS CONVICTIONS, WHERE LOCAL
SEGREGATION ORDINANCES PREEMPT PRIVATE CHOICE, PETERSON V. CITY OF
GREENVILLE, ANTE, P. 244 (1963); SEATING IN COURTROOMS, JOHNSON V.
VIRGINIA, ANTE, P. 61 (1963); RESTAURANTS IN PUBLIC BUILDINGS, BURTON
V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715 (1961); BUS TERMINALS,
BOYNTON V. VIRGINIA, 364 U.S. 454 (1960); PUBLIC SCHOOLS, BROWN V.
BOARD OF EDUCATION, SUPRA; RAILROAD DINING-CAR FACILITIES, HENDERSON V.
UNITED STATES, 339 U.S. 816 (1950); STATE ENFORCEMENT OF RESTRICTIVE
COVENANTS BASED ON RACE, SHELLEY V. KRAEMER, 334 U.S. 1 (1948); LABOR
UNIONS ACTING AS STATUTORY REPRESENTATIVES OF A CRAFT, STEELE V.
LOUISVILLE & NASHVILLE R. CO., SUPRA; VOTING, SMITH V. ALLWRIGHT, 321
U.S. 649 (1944); AND JURIES, STRAUDER V. WEST VIRGINIA, 100 U.S. 303
(1879).  THE RECOGNITION OF RACE AS AN ABSOLUTE CRITERION FOR GRANTING
TRANSFERS WHICH OPERATE ONLY IN THE DIRECTION OF SCHOOLS IN WHICH THE
TRANSFEREE'S RACE IS IN THE MAJORITY IS NO LESS UNCONSTITUTIONAL THAN
ITS USE FOR ORIGINAL ADMISSION OR SUBSEQUENT ASSIGNMENT TO PUBLIC
SCHOOLS.  SEE BOSON V. RIPPY, 285 F.2D 43 (C.A. 5TH CIR.). 

THE ALLEGED EQUALITY - WHICH WE VIEW AS ONLY SUPERFICIAL - OF
ENABLING EACH RACE TO TRANSFER FROM A DESEGREGATED TO A SEGREGATED
SCHOOL DOES NOT SAVE THE PLANS.  LIKE ARGUMENTS WERE MADE WITHOUT
SUCCESS IN BROWN, SUPRA, IN SUPPORT OF THE SEPARATE BUT EQUAL
EDUCATIONAL PROGRAM.  NOT ONLY IS RACE THE FACTOR UPON WHICH THE
TRANSFER PLANS OPERATE, BUT ALSO THE PLANS LACK A PROVISION WHEREBY A
STUDENT MIGHT WITH EQUAL FACILITY TRANSFER FROM A SEGREGATED TO A
DESEGREGATED SCHOOL.  THE OBVIOUS ONE-WAY OPERATION OF THESE TWO
FACTORS IN COMBINATION UNDERSCORES THE PURELY RACIAL CHARACTER AND
PURPOSE OF THE TRANSFER PROVISIONS.  WE HOLD THAT THE TRANSFER PLANS
PROMOTE DISCRIMINATION AND ARE THEREFORE INVALID. 

THIS IS NOT TO SAY THAT APPROPRIATE TRANSFER PROVISIONS, UPON THE
PARENTS' REQUEST, CONSISTENT WITH SOUND SCHOOL ADMINISTRATION AND NOT
BASED UPON ANY STATE-IMPOSED RACIAL CONDITIONS, WOULD FALL.   LIKEWISE,
WE WOULD HAVE A DIFFERENT CASE HERE IF THE TRANSFER PROVISIONS WERE
UNRESTRICTED, ALLOWING TRANSFERS TO OR FROM ANY SCHOOL REGARDLESS OF
THE RACE OF THE MAJORITY THEREIN.  BUT NO OFFICIAL TRANSFER PLAN OR
PROVISION OF WHICH RACIAL SEGREGATION IS THE INEVITABLE CONSEQUENCE MAY
STAND UNDER THE FOURTEENTH AMENDMENT. 

IN REACHING THIS RESULT WE ARE NOT UNMINDFUL OF THE DEEP-ROOTED
PROBLEMS INVOLVED.  INDEED, IT WAS CONSIDERATION FOR THE MULTIFARIOUS
LOCAL DIFFICULTIES AND "VARIETY OF OBSTACLES" WHICH MIGHT ARISE IN THIS
TRANSITION THAT LED THIS COURT EIGHT YEARS AGO TO FRAME ITS MANDATE IN
BROWN IN SUCH LANGUAGE AS "GOOD FAITH COMPLIANCE AT THE EARLIEST
PRACTICABLE DATE" AND "ALL DELIBERATE SPEED."  BROWN V. BOARD OF
EDUCATION, 349 U.S., AT 300, 301.  NOW, HOWEVER, EIGHT YEARS AFTER THIS
DECREE WAS RENDERED AND OVER NINE YEARS AFTER THE FIRST BROWN DECISION,
THE CONTEXT IN WHICH WE MUST INTERPRET AND APPLY THIS LANGUAGE TO PLANS
FOR DESEGREGATION HAS BEEN SIGNIFICANTLY ALTERED.  COMPARE WATSON V.
CITY OF MEMPHIS, SUPRA.  THE TRANSFER PROVISIONS HERE CANNOT BE DEEMED
TO BE REASONABLY DESIGNED TO MEET LEGITIMATE LOCAL PROBLEMS, AND
THEREFORE DO NOT MEET THE REQUIREMENTS OF BROWN.  ACCORDINGLY, THE
DECISIONS OF THE COURT OF APPEALS, INSOFAR AS THEY APPROVE THE TRANSFER
PROVISIONS SUBMITTED BY THE BOARDS OF EDUCATION OF KNOXVILLE,
TENNESSEE, AND DAVIDSON COUNTY, TENNESSEE, ARE REVERSED AND THE CASES
ARE REMANDED TO THE COURT OF APPEALS WITH DIRECTIONS TO REMAND TO THE
DISTRICT COURTS FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  A FULL DISCUSSION OF THE KNOXVILLE PLANS MAY BE FOUND IN THE
OPINION OF THE COURT OF APPEALS, 301 F.2D 164, WHICH AFFIRMED, WITH
MODIFICATIONS NOT RELEVANT HERE, THE OVER-ALL PLAN, INCLUDING THE
TRANSFER PROVISIONS.  LIKEWISE THE OPINION OF THE COURT OF APPEALS IN
MAXWELL V. COUNTY BOARD OF EDUCATION OF DAVIDSON COUNTY, 301 F.2D 828,
AFFIRMED THE ACTION OF THE DISTRICT COURT IN APPROVING THE DAVIDSON
COUNTY PLAN, INCLUDING THE TRANSFER PROVISIONS WHICH ARE SET OUT IN
DETAIL IN THAT OPINION. 

FN2  THE KNOXVILLE PLAN PROVIDES (R. 31): 

"5.  REQUESTS FOR TRANSFER OF STUDENTS IN DESEGREGATED GRADES FROM
THE SCHOOL OF THEIR ZONE TO ANOTHER SCHOOL WILL BE GIVEN FULL
CONSIDERATION AND WILL BE GRANTED WHEN MADE IN WRITING BY PARENTS OR
GUARDIANS OR THOSE ACTING IN THE POSITION OF PARENTS, WHEN GOOD CAUSE
THEREFOR IS SHOWN AND WHEN TRANSFER IS PRACTICABLE, CONSISTENT WITH
SOUND SCHOOL ADMINISTRATION." 

THE DAVIDSON COUNTY PLAN PROVIDES (R. 214): 

"4.  APPLICATION FOR TRANSFER OF FIRST GRADE STUDENTS, AND SUBSEQUENT
GRADES ACCORDING TO THE GRADUAL PLAN, FROM THE SCHOOL OF THEIR ZONE TO
ANOTHER SCHOOL WILL BE GIVEN CAREFUL CONSIDERATION AND WILL BE GRANTED
WHEN MADE IN WRITING BY PARENTS, GUARDIANS, OR THOSE ACTING IN THE
POSITION OF PARENTS, WHEN GOOD CAUSE THEREFOR IS SHOWN AND WHEN
TRANSFER IS PRACTICABLE AND CONSISTENT WITH SOUND SCHOOL
ADMINISTRATION." 
..END :












LOCAL 100, UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES V. BORDEN 373
U.S. 690 


NO. 541.  ARGUED APRIL 24, 1963.  - DECIDED JUNE 3, 1963.  - 355 S.W.2D
729, REVERSED. 


RESPONDENT, A MEMBER OF A LOCAL PLUMBERS' UNION IN SHREVEPORT, LA.,
ARRIVED IN DALLAS, TEX., LOOKING FOR A JOB WITH A CONSTRUCTION COMPANY
ON A PARTICULAR BANK CONSTRUCTION PROJECT THERE.  ALTHOUGH THE FOREMAN
OF THE CONSTRUCTION COMPANY WANTED HIM, HE WAS UNABLE TO GET THE JOB,
BECAUSE THE COMPANY'S HIRING WAS DONE THROUGH UNION REFERRAL, AND THE
BUSINESS AGENT OF PETITIONER, THE LOCAL PLUMBERS' UNION IN DALLAS,
REFUSED TO REFER RESPONDENT.  RESPONDENT SUED PETITIONER IN A TEXAS
STATE COURT, SEEKING DAMAGES FOR SUCH REFUSAL AND ALLEGING THAT
PETITIONER'S ACTIONS CONSTITUTED A WILLFUL, MALICIOUS AND
DISCRIMINATORY INTERFERENCE WITH HIS RIGHT TO CONTRACT AND TO PURSUE A
LAWFUL OCCUPATION; THAT PETITIONER HAD BREACHED A PROMISE, IMPLICIT IN
THE UNION MEMBERSHIP ARRANGEMENT, NOT TO DISCRIMINATE UNFAIRLY OR TO
DENY ANY MEMBER THE RIGHT TO WORK; AND THAT IT HAD VIOLATED CERTAIN
STATE STATUTES.  PETITIONER CHALLENGED THE STATE COURT'S JURISDICTION. 
HELD:  THE CONDUCT OF PETITIONER THAT WAS THE SUBJECT MATTER OF THE
SUIT WAS ARGUABLY PROTECTED BY SEC. 7 OR PROHIBITED BY SEC. 8 OF THE
NATIONAL LABOR RELATIONS ACT, AND THE STATE COURT WAS PRECLUDED FROM
EXERCISING JURISDICTION.  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON,
359 U.S. 236, FOLLOWED.  INTERNATIONAL ASSN. OF MACHINISTS V. GONZALES,
356 U.S. 617, DISTINGUISHED.  PP. 691-698. 

LOCAL 100, UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, V. BORDEN. 

CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, FIFTH SUPREME
JUDICIAL DISTRICT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS ONE FACET OF THE RECURRENT PROBLEM OF DEFINING THE
PERMISSIBLE SCOPE OF STATE JURISDICTION IN THE FIELD OF LABOR
RELATIONS.  THE PARTICULAR QUESTION BEFORE US INVOLVES CONSIDERATION
AND APPLICATION, IN THIS SUIT BY A UNION MEMBER AGAINST A LOCAL UNION,
OF THE PRINCIPLES DECLARED IN INTERNATIONAL ASSN. OF MACHINISTS V.
GONZALES, 356 U.S. 617, AND SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236. 

                                   I. 

THE RESPONDENT, H.N. BORDEN, WHO WAS THEN A MEMBER OF THE SHREVEPORT,
LOUISIANA, LOCAL OF THE PLUMBERS UNION, ARRIVED IN DALLAS, TEXAS, IN
SEPTEMBER 1953, LOOKING FOR A JOB WITH THE FARWELL CONSTRUCTION COMPANY
ON A PARTICULAR BANK CONSTRUCTION PROJECT.  FARWELL'S HIRING ON THIS
PROJECT WAS DONE THROUGH UNION REFERRAL, ALTHOUGH THERE WAS NO WRITTEN
AGREEMENT TO THIS EFFECT.  BORDEN WAS UNABLE TO OBTAIN SUCH A REFERRAL
FROM THE BUSINESS AGENT OF THE DALLAS LOCAL OF THE PLUMBERS UNION, EVEN
AFTER THE AGENT HAD ACCEPTED BORDEN'S CLEARANCE CARD FROM THE
SHREVEPORT LOCAL AND AFTER THE FARWELL FOREMAN ON THE CONSTRUCTION
PROJECT HAD CALLED THE BUSINESS AGENT AND ASKED TO HAVE BORDEN SENT
OVER.  ACCORDING TO BORDEN'S TESTIMONY, THE BUSINESS AGENT TOLD HIM: 

"YOU ARE NOT GOING TO WORK DOWN THERE ON THE BANK JOB OR FOR FARWELL,
YOU HAVE COME IN HERE WRONG, YOU HAVE COME IN HERE WITH A JOB IN YOUR
POCKET." 

AND ACCORDING TO THE FARWELL FOREMAN, THE BUSINESS AGENT ANSWERED HIS
REQUEST BY SAYING: 

"I AM NOT ABOUT TO SEND THAT OLD ------ DOWN THERE, HE SHOVED HIS
CARD DOWN OUR THROAT AND I AM NOT ABOUT TO SEND HIM TO THE BANK." 

BORDEN NEVER DID GET THE JOB WITH FARWELL, ALTHOUGH HE WAS REFERRED
TO AND ACCEPTED SEVERAL OTHER JOBS DURING THE PERIOD BEFORE THE BANK
CONSTRUCTION PROJECT WAS COMPLETED. 

SUBSEQUENTLY, HE BROUGHT THE PRESENT SUIT AGAINST THE DALLAS LOCAL,
PETITIONER HERE, AND THE PARENT INTERNATIONAL, (FN1) SEEKING DAMAGES
UNDER STATE LAW FOR THE REFUSAL TO REFER HIM TO FARWELL.   HE ALLEGED
THAT THE ACTIONS OF THE DEFENDANTS CONSTITUTED A WILLFUL, MALICIOUS,
AND DISCRIMINATORY INTERFERENCE WITH HIS RIGHT TO CONTRACT AND TO
PURSUE A LAWFUL OCCUPATION; THAT THE DEFENDANTS HAD BREACHED A PROMISE,
IMPLICIT IN THE MEMBERSHIP ARRANGEMENT, NOT TO DISCRIMINATE UNFAIRLY OR
TO DENY ANY MEMBER THE RIGHT TO WORK; AND THAT THE DEFENDANTS HAD
VIOLATED CERTAIN STATE STATUTORY PROVISIONS.  (FN2) 

PETITIONER CHALLENGED THE STATE COURT'S JURISDICTION, ASSERTING THAT
THE SUBJECT MATTER OF THE SUIT WAS WITHIN THE EXCLUSIVE JURISDICTION OF
THE NATIONAL LABOR RELATIONS BOARD.  THE TRIAL COURT UPHELD THE
CHALLENGE AND DISMISSED THE SUIT, BUT ON APPEAL THE TEXAS COURT OF
CIVIL APPEALS, RELYING ON THIS COURT'S DECISION IN INTERNATIONAL ASSN.
OF MACHINISTS V. GONZALES, SUPRA, REVERSED AND REMANDED FOR TRIAL.  316
S.W.2D 458.  THE TEXAS SUPREME COURT GRANTED A WRIT OF ERROR ON ANOTHER
POINT IN THE CASE AND AFFIRMED THE REMAND.  160 TEX. 203, 328 S.W.2D
739. 

AT TRIAL, THE CASE WAS SUBMITTED TO THE JURY ON SPECIAL ISSUES AND
THE JURY'S ANSWERS INCLUDED FINDINGS THAT BORDEN HAD BEEN PROMISED A
JOB BY A FARWELL REPRESENTATIVE; THAT THE FARWELL FOREMAN ASKED THE
UNION BUSINESS AGENT TO REFER BORDEN; THAT THE BUSINESS AGENT
"WILFULLY" REFUSED TO LET BORDEN WORK ON THE BANK PROJECT, KNOWING THAT
BORDEN WAS ENTITLED TO WORK ON THAT PROJECT UNDER UNION RULES; AND THAT
THE CONDUCT OF THE BUSINESS AGENT WAS APPROVED BY THE OFFICERS AND
MEMBERS OF PETITIONER.  ACTUAL LOSS OF EARNINGS RESULTING FROM THE
REFUSAL TO REFER BORDEN TO THE FARWELL JOB WAS FOUND TO BE $1,916;
COMPENSATION FOR MENTAL SUFFERING, $1,500; AND PUNITIVE DAMAGES,
$5,000.  THE TRIAL COURT DISALLOWED RECOVERY FOR MENTAL ANGUISH AND
ORDERED A REMITTITUR OF THE PUNITIVE DAMAGES IN EXCESS OF THE AMOUNT OF
ACTUAL DAMAGES, THUS AWARDING TOTAL DAMAGES OF $3,832.  THE COURT OF
CIVIL APPEALS AFFIRMED, 355 S.W.2D 729, AGAIN REJECTING PETITIONER'S
PREEMPTION ARGUMENT.  FOLLOWING DENIAL OF A WRIT OF ERROR BY THE
SUPREME COURT OF TEXAS, WE GRANTED CERTIORARI, 371 U.S. 939, TO
CONSIDER THE QUESTION WHETHER FEDERAL LABOR LAW PRECLUDES THE EXERCISE
OF STATE JURISDICTION OVER THIS DISPUTE. 

              II. 

THIS COURT HELD IN SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359
U.S. 236, THAT IN THE ABSENCE OF AN OVERRIDING STATE INTEREST SUCH AS
THAT INVOLVED IN THE MAINTENANCE OF DOMESTIC PEACE, STATE COURTS MUST
DEFER TO THE EXCLUSIVE COMPETENCE OF THE NATIONAL LABOR RELATIONS BOARD
IN CASES IN WHICH THE ACTIVITY THAT IS THE SUBJECT MATTER OF THE
LITIGATION IS ARGUABLY SUBJECT TO THE PROTECTIONS OF SEC. 7 OR THE
PROHIBITIONS OF SEC. 8 OF THE NATIONAL LABOR RELATIONS ACT.  (FN3) THIS
RELINQUISHMENT OF STATE JURISDICTION, THE COURT STATED, IS ESSENTIAL
"IF THE DANGER OF STATE INTERFERENCE WITH NATIONAL POLICY IS TO BE
AVERTED," 359 U.S., AT 245, AND IS AS NECESSARY IN A SUIT FOR DAMAGES
AS IN A SUIT SEEKING EQUITABLE RELIEF.  THUS THE FIRST INQUIRY, IN ANY
CASE IN WHICH A CLAIM OF FEDERAL PREEMPTION IS RAISED, MUST BE WHETHER
THE CONDUCT CALLED INTO QUESTION MAY REASONABLY BE ASSERTED TO BE
SUBJECT TO LABOR BOARD COGNIZANCE. 

IN THE PRESENT CASE, RESPONDENT CONTENDS THAT NO SUCH ASSERTION CAN
BE MADE, BUT WE DISAGREE.  (FN4)  THE FACTS AS ALLEGED IN THE
COMPLAINT, AND AS FOUND BY THE JURY, ARE THAT THE DALLAS UNION BUSINESS
AGENT, WITH THE ULTIMATE APPROVAL OF THE LOCAL UNION ITSELF, REFUSED TO
REFER THE RESPONDENT TO A PARTICULAR JOB FOR WHICH HE HAD BEEN SOUGHT,
AND THAT THIS REFUSAL RESULTED IN AN INABILITY TO OBTAIN THE
EMPLOYMENT.  NOTWITHSTANDING THE STATE COURT'S CONTRARY VIEW, IF IT IS
ASSUMED THAT THE REFUSAL AND THE RESULTING INABILITY TO OBTAIN
EMPLOYMENT WERE IN SOME WAY BASED ON RESPONDENT'S ACTUAL OR BELIEVED
FAILURE TO COMPLY WITH INTERNAL UNION RULES, IT IS CERTAINLY "ARGUABLE"
THAT THE UNION'S CONDUCT VIOLATED SEC. 8(B)(1)(A), BY RESTRAINING OR
COERCING BORDEN IN THE EXERCISE OF HIS PROTECTED RIGHT TO REFRAIN FROM
OBSERVING THOSE RULES, AND SEC. 8(B)(2), BY CAUSING AN EMPLOYER TO
DISCRIMINATE AGAINST BORDEN IN VIOLATION OF SEC. 8(A)(3).  (FN5)  SEE,
E.G., RADIO OFFICERS V. LABOR BOARD, 347 U.S. 17; LOCAL 568, HOTEL
EMPLOYEES, 141 N.L.R.B. NO. 29; INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 524 A-B, 141 N.L.R.B. NO. 57.  AS ESTABLISHED IN THE
RADIO OFFICERS CASE, THE "MEMBERSHIP" REFERRED TO IN SEC. 8(A)(3) AND
THUS INCORPORATED IN SEC. 8(B)(2) IS BROAD ENOUGH TO EMBRACE
PARTICIPATION IN UNION ACTIVITIES AND MAINTENANCE OF GOOD STANDING AS
WELL AS MERE ADHESION TO A LABOR ORGANIZATION.  347 U.S., AT 39-42. 
AND THERE IS A SUBSTANTIAL POSSIBILITY IN THIS CASE THAT BORDEN'S
FAILURE TO LIVE UP TO THE INTERNAL RULE PROHIBITING THE SOLICITATION OF
WORK FROM ANY CONTRACTOR (FN6) WAS PRECISELY THE REASON WHY CLEARANCE
WAS DENIED.  INDEED THIS MAY WELL HAVE BEEN THE MEANING OF THE BUSINESS
AGENT'S REMARK, TESTIFIED TO BY BORDEN HIMSELF, THAT "YOU HAVE COME IN
HERE WRONG, YOU HAVE COME IN HERE WITH A JOB IN YOUR POCKET." 

IT MAY ALSO BE REASONABLY CONTENDED THAT AFTER INQUIRY INTO THE
FACTS, THE BOARD MIGHT HAVE FOUND THAT THE UNION CONDUCT IN QUESTION
WAS NOT AN UNFAIR LABOR PRACTICE BUT RATHER WAS PROTECTED CONCERTED
ACTIVITY WITHIN THE MEANING OF SEC. 7.  THIS COURT HAS HELD THAT HIRING
HALL PRACTICES DO NOT NECESSARILY VIOLATE THE PROVISIONS OF FEDERAL
LAW, TEAMSTERS LOCAL V. LABOR BOARD, 365 U.S. 667, AND THE BOARD'S
APPRAISAL OF THE CONFLICTING TESTIMONY MIGHT HAVE LED IT TO CONCLUDE
THAT THE REFUSAL TO REFER WAS DUE ONLY TO THE RESPONDENT'S EFFORTS TO
CIRCUMVENT A LAWFUL HIRING-HALL ARRANGEMENT RATHER THAN TO HIS ENGAGING
IN PROTECTED ACTIVITIES.  THE PROBLEMS INHERENT IN THE OPERATION OF
UNION HIRING HALLS ARE DIFFICULT AND COMPLEX, SEE ROTHMAN, THE
DEVELOPMENT AND CURRENT STATUS OF THE LAW PERTAINING TO HIRING HALL
ARRANGEMENTS, 48 VA. L. REV. 871, AND POINT UP THE IMPORTANCE OF
LIMITING INITIAL COMPETENCE TO ADJUDICATE SUCH MATTERS TO A SINGLE
EXPERT FEDERAL AGENCY. 

WE NEED NOT AND SHOULD NOT NOW CONSIDER WHETHER THE PETITIONER'S
ACTIVITY IN THIS CASE WAS FEDERALLY PROTECTED OR PROHIBITED, ON ANY OF
THE THEORIES SUGGESTED ABOVE OR ON SOME DIFFERENT BASIS.  (FN7)  IT IS
SUFFICIENT FOR PRESENT PURPOSES TO FIND, AS WE DO, THAT IT IS
REASONABLY "ARGUABLE" THAT THE MATTER COMES WITHIN THE BOARD'S
JURISDICTION. 

             III. 

RESPONDENT URGES THAT EVEN IF THE UNION'S INTERFERENCE WITH HIS
EMPLOYMENT IS A MATTER THAT THE BOARD COULD HAVE DEALT WITH, THE STATE
COURTS ARE STILL NOT DEPRIVED OF JURISDICTION IN THIS CASE UNDER THE
PRINCIPLES DECLARED IN INTERNATIONAL ASSN. OF MACHINISTS V. GONZALES,
356 U.S. 617.  GONZALES WAS A SUIT AGAINST A LABOR UNION BY AN
INDIVIDUAL WHO CLAIMED THAT HE HAD BEEN EXPELLED IN VIOLATION OF HIS
CONTRACTUAL RIGHTS AND WHO WAS SEEKING RESTORATION OF MEMBERSHIP.  HE
ALSO SOUGHT CONSEQUENTIAL DAMAGES FLOWING FROM THE EXPULSION, INCLUDING
LOSS OF WAGES RESULTING FROM LOSS OF EMPLOYMENT AND COMPENSATION FOR
PHYSICAL AND MENTAL SUFFERING.  IT WAS RECOGNIZED IN THAT CASE THAT
RESTORATION OF UNION MEMBERSHIP WAS A REMEDY THAT THE BOARD COULD NOT
AFFORD AND INDEED THAT THE INTERNAL AFFAIRS OF UNIONS WERE NOT IN
THEMSELVES A MATTER WITHIN THE BOARD'S COMPETENCE.  (FN8) THE COURT
THEN WENT ON TO HOLD THAT, IN THE PRESENCE OF ADMITTED STATE
JURISDICTION TO ORDER RESTORATION OF MEMBERSHIP, THE STATE WAS NOT
WITHOUT POWER "TO FILL OUT THIS REMEDY" BY AN AWARD OF CONSEQUENTIAL
DAMAGES, EVEN THOUGH THESE DAMAGES MIGHT BE FOR CONDUCT THAT
CONSTITUTED AN UNFAIR LABOR PRACTICE UNDER FEDERAL LAW.  THE TAFT
HARTLEY ACT, THE COURT STATED, DID NOT REQUIRE MUTILATION OF "THE
COMPREHENSIVE RELIEF OF EQUITY."  356 U.S., AT 621. 

THE GONZALES DECISION, IT IS EVIDENT, TURNED ON THE COURT'S
CONCLUSION THAT THE LAWSUIT WAS FOCUSED ON PURELY INTERNAL UNION
MATTERS, I.E., ON RELATIONS BETWEEN THE INDIVIDUAL PLAINTIFF AND THE
UNION NOT HAVING TO DO DIRECTLY WITH MATTERS OF EMPLOYMENT, AND THAT
THE PRINCIPAL RELIEF SOUGHT WAS RESTORATION OF UNION MEMBERSHIP
RIGHTS.  IN THIS POSTURE, COLLATERAL RELIEF IN THE FORM OF
CONSEQUENTIAL DAMAGES FOR LOSS OF EMPLOYMENT WAS NOT TO BE DENIED. 

WE NEED NOT NOW DETERMINE THE EXTENT TO WHICH THE HOLDING IN GARMON,
SUPRA, QUALIFIED THE PRINCIPLES DECLARED IN GONZALES WITH RESPECT TO
JURISDICTION TO AWARD CONSEQUENTIAL DAMAGES, FOR IT IS CLEAR IN ANY
EVENT THAT THE PRESENT CASE DOES NOT COME WITHIN THE GONZALES
RATIONALE.  THE SUIT INVOLVED HERE WAS FOCUSED PRINCIPALLY, IF NOT
ENTIRELY, ON THE UNION'S ACTIONS WITH RESPECT TO BORDEN'S EFFORTS TO
OBTAIN EMPLOYMENT.  NO SPECIFIC EQUITABLE RELIEF WAS SOUGHT DIRECTED TO
BORDEN'S STATUS IN THE UNION, AND THUS THERE WAS NO STATE REMEDY TO
"FILL OUT" BY PERMITTING THE AWARD OF CONSEQUENTIAL DAMAGES.  THE
"CRUX" OF THE ACTION (GONZALES, 356 U.S., AT 618) CONCERNED BORDEN'S
EMPLOYMENT RELATIONS AND INVOLVED CONDUCT ARGUABLY SUBJECT TO THE
BOARD'S JURISDICTION. 

NOR DO WE REGARD IT AS SIGNIFICANT THAT BORDEN'S COMPLAINT AGAINST
THE UNION SOUNDED IN CONTRACT AS WELL AS IN TORT.  IT IS NOT THE LABEL
AFFIXED TO THE CAUSE OF ACTION UNDER STATE LAW THAT CONTROLS THE
DETERMINATION OF THE RELATIONSHIP BETWEEN STATE AND FEDERAL
JURISDICTION.  RATHER, AS STATED IN GARMON, SUPRA, AT 246: 

"OUR CONCERN IS WITH DELIMITING AREAS OF CONDUCT WHICH MUST BE FREE
FROM STATE REGULATION IF NATIONAL POLICY IS TO BE LEFT UNHAMPERED." 

IN THE PRESENT CASE THE CONDUCT ON WHICH THE SUIT IS CENTERED,
WHETHER DESCRIBED IN TERMS OF TORT OR CONTRACT, IS CONDUCT WHOSE
LAWFULNESS COULD INITIALLY BE JUDGED ONLY BY THE FEDERAL AGENCY VESTED
WITH EXCLUSIVE PRIMARY JURISDICTION TO APPLY FEDERAL STANDARDS. 

ACCORDINGLY, WE CONCLUDE THAT THE JUDGMENT OF THE COURT BELOW MUST BE
REVERSED. 

FN1  THE TRIAL COURT GRANTED A DIRECTED VERDICT IN FAVOR OF THE
PARENT INTERNATIONAL, AND THE PARENT ORGANIZATION IS THEREFORE NO
LONGER IN THE CASE. 

FN2  TEX. CIV. STAT. ANN., 1962, ART. 5207A - "RIGHT TO BARGAIN
FREELY  ...  " - WAS CITED BY BORDEN IN HIS COMPLAINT.  THIS STATUTE,
HOWEVER, WAS NOT RELIED UPON BY THE COURTS BELOW AS SUPPORTING
RECOVERY, AND ITS EFFECT NEED NOT BE CONSIDERED HERE. 

FN3  49 STAT. 452, AS AMENDED, 29 U.S.C. SECS. 157, 158.  WE DO NOT
DEAL HERE WITH SUITS BROUGHT IN STATE COURTS UNDER SEC. 301 OR SEC. 303
OF THE LABOR MANAGEMENT RELATIONS ACT, 61 STAT. 156, 158, 29 U.S.C.
SECS. 185, 187, WHICH ARE GOVERNED BY FEDERAL LAW AND TO WHICH
DIFFERENT PRINCIPLES ARE APPLICABLE.  SEE, E.G., SMITH V. EVENING NEWS
ASSN., 371 U.S. 195. 

FN4  RESPONDENT DOES NOT CHALLENGE THE EXISTENCE OF THE REQUISITE
EFFECT ON COMMERCE TO BRING THE MATTER WITHIN THE SCOPE OF THE BOARD'S
JURISDICTION. 

FN5  SECTION 8(A) OF THE ACT PROVIDES THAT IT SHALL BE AN UNFAIR
LABOR PRACTICE FOR AN EMPLOYER "(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  ...  ." 
PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS "(1) TO RESTRAIN OR
COERCE (A) EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN
DISCRIMINATE AGAINST AN EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3)  ...
." 

FN6  SECTION 30 OF ARTICLE I OF THE BYLAWS OF PETITIONER PROVIDES IN
PERTINENT PART THAT "MEMBERS SHALL NOT SOLICIT WORK FROM ANY CONTRACTOR
OR THEIR REPRESENTATIVE.  ALL EMPLOYMENT MUST BE PROCURED THROUGH
BUSINESS OFFICE OF LOCAL UNION NO. 100."    FN7  AS ONE POSSIBLE
ADDITIONAL BASIS ON WHICH THE CONDUCT IN QUESTION MIGHT HAVE BEEN HELD
TO BE PROHIBITED, FOR EXAMPLE, PETITIONER REFERS US TO THE BOARD'S
RECENT DECISION IN MIRANDA FUEL CO., 140 N.L.R.B. NO. 7, IN WHICH THE
MAJORITY HELD THAT A STATUTORY BARGAINING REPRESENTATIVE VIOLATES SEC.
8(B)(2) "WHEN, FOR ARBITRARY OR IRRELEVANT REASONS OR UPON THE BASIS OF
AN UNFAIR CLASSIFICATION, THE UNION ATTEMPTS TO CAUSE OR DOES CAUSE AN
EMPLOYER TO DEROGATE THE EMPLOYMENT STATUS OF AN EMPLOYEE."  AGAIN, WE
NEED NOT AND DO NOT PASS UPON THE CORRECTNESS OF THAT DECISION OR ITS
APPLICABILITY IN THE CIRCUMSTANCES OF THIS CASE. 

FN8  SECTION 8(B)(1)(A), IT SHOULD BE NOTED, CONTAINS A PROVISO TO
THE EFFECT THAT "THIS PARAGRAPH SHALL NOT IMPAIR THE RIGHT OF A LABOR
ORGANIZATION TO PRESCRIBE ITS OWN RULES WITH RESPECT TO THE ACQUISITION
OR RETENTION OF MEMBERSHIP THEREIN." 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE CLARK CONCURS, DISSENTING. 

WHILE I DISSENTED IN INTERNATIONAL ASSOCIATION V. GONZALES, 356 U.S.
617, I FAIL TO SEE HOW THAT CASE CAN FAIRLY BE DISTINGUISHED FROM THIS
ONE.  BOTH GONZALES AND SAN DIEGO BUILDING TRADES COUNCIL V. GARMON,
359 U.S. 236, WERE WRITTEN BY THE SAME AUTHOR, WHO HAD NO DIFFICULTY IN
RECONCILING THEM.   AND THEY WERE DECIDED BEFORE CONGRESS REENTERED THE
LABOR RELATIONS FIELD WITH THE LANDRUM-GRIFFIN ACT OF 1959.  73 STAT.
519.  YET, THE COURT POINTS TO NO INDICATION THAT CONGRESS THOUGHT
GONZALES HAD INCORRECTLY INTERPRETED THE BALANCE IT HAD STRUCK BETWEEN
STATE AND FEDERAL JURISDICTION OVER THESE MATTERS. 

THE DISTINCTION THE COURT DRAWS BETWEEN THIS CASE AND GONZALES - THAT
IN GONZALES THE LAWSUIT FOCUSED ON PURELY INTERNAL UNION MATTERS - IS
NOT ONE THAT A COURT CAN INTELLIGENTLY APPLY IN THE MYRIAD OF CASES IN
THE FIELD.  THIS LAWSUIT STARTED WITH A QUARREL BETWEEN RESPONDENT AND
HIS UNION, CONCERNING THE SCOPE OF MEMBERSHIP RIGHTS IN THE UNION, AS
DID GONZALES; AND IT IS WITH THOSE RIGHTS THAT THIS LITIGATION IS
CONCERNED, AS WAS GONZALES.  AND, AS HERE, IT WAS CONCEDED IN GONZALES
THAT THE CONDUCT COMPLAINED OF MIGHT WELL AMOUNT TO AN UNFAIR LABOR
PRACTICE WITHIN THE LABOR BOARD'S JURISDICTION.  BECAUSE OF THESE
SIMILARITIES, AND BECAUSE THE COURT IS CLEARLY RIGHT IN SAYING "IT IS
NOT THE LABEL AFFIXED TO THE CAUSE OF ACTION UNDER STATE LAW THAT
CONTROLS THE DETERMINATION OF THE RELATIONSHIP BETWEEN STATE AND
FEDERAL JURISDICTION," I AM ABLE TO FIND NO SUPPORT FOR THE COURT'S
DISTINCTION OF GONZALES IN THE FACT THAT IT WAS PRIMARILY AN
"EQUITABLE" CASE WHERE DAMAGES WERE ALLOWED ONLY TO "FILL OUT" THE
UNION MEMBER'S REMEDY.  CF. FEDERAL RULES OF CIVIL PROCEDURE, RULES 1,
2, AND 54(C). 

SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, SUPRA, INVOLVED A
CONTROVERSY BETWEEN UNION AND EMPLOYER IN THE CLASSICAL CASE FOR
NATIONAL LABOR BOARD JURISDICTION.  SUITS FOR DAMAGES BY INDIVIDUAL
EMPLOYEES AGAINST THE UNION OR THE EMPLOYER FALL IN THE CATEGORY OF
MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630.  AS A MATTER OF POLICY,
THERE IS MUCH TO BE SAID FOR ALLOWING THE INDIVIDUAL EMPLOYEE RECOURSE
TO CONVENTIONAL LITIGATION IN HIS HOMETOWN TRIBUNAL FOR REDRESS OF
GRIEVANCES.  WASHINGTON, D.C., AND ITS ADMINISTRATIVE AGENCIES - AND
EVEN REGIONAL OFFICES - ARE OFTEN DISTANT AND REMOTE AND EXPENSIVE TO
REACH.  UNDER TODAY'S HOLDING THE MEMBER WHO HAS A REAL DISPUTE WITH
HIS UNION MAY GO WITHOUT A REMEDY.*  SEE, E.G., SAN DIEGO BUILDING
TRADES COUNCIL V. GARMON, SUPRA; GUSS V. UTAH LABOR BOARD, 353 U.S. 1. 
WHEN THE BASIC DISPUTE IS BETWEEN A UNION AND AN EMPLOYER, ANY HIATUS
THAT MIGHT EXIST IN THE JURISDICTIONAL BALANCE THAT HAS BEEN STRUCK CAN
BE FILLED BY RESORT TO ECONOMIC POWER.  BUT WHEN THE UNION MEMBER HAS A
DISPUTE WITH HIS UNION, HE HAS NO POWER ON WHICH TO RELY.  IF GONZALES
WRITTEN IN THE SPIRIT OF MOORE - IS TO SURVIVE, THIS JUDGMENT SHOULD
BE AFFIRMED. 

*IT IS BY NO MEANS CLEAR THAT THE GENERAL COUNSEL, WHO BY SEC. 3(D)
HAS "FINAL AUTHORITY" TO INVESTIGATE CHARGES AND TO ISSUE COMPLAINTS,
CAN BE MADE TO FILE A CHARGE ON BEHALF OF THIS INDIVIDUAL CLAIMANT. 
SEE HOURIHAN V. LABOR BOARD, 91 U.S. APP. D.C. 316, 201 F.2D 187; DUNN
V. RETAIL CLERKS, 299 F.2D 873; 307 F.2D 285. 
..END :














LOCAL NO. 207, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRON WORKERS UNION V. PERKO 373 U.S. 701 


NO. 482.  ARGUED APRIL 23-24, 1963.  - DECIDED JUNE 3, 1963.  - 173 OHIO
ST. 576, 184 N.E.2D 100, REVERSED. 


RESPONDENT, A UNION MEMBER, BROUGHT SUIT IN AN OHIO STATE COURT
AGAINST PETITIONERS, HIS IRONWORKERS LOCAL UNION AND CERTAIN OF ITS
OFFICERS, SEEKING DAMAGES UNDER STATE COMMON LAW.  HE ALLEGED THAT FOR
SEVERAL YEARS HE HAD BEEN A MEMBER IN GOOD STANDING OF THE IRONWORKERS
LOCAL UNION AND HAD BEEN EMPLOYED "AS A FOREMAN" BY A CERTAIN COMPANY;
THAT PETITIONERS, WITHOUT JUSTIFICATION, HAD CONSPIRED TO DEPRIVE HIM
OF THE RIGHT TO CONTINUE TO WORK "AS A FOREMAN"; THAT, PURSUANT TO THIS
CONSPIRACY, THEY HAD DEMANDED THAT THE COMPANY DISCHARGE HIM FROM HIS
DUTIES "AS SUPERINTENDENT AND FOREMAN"; THAT, AS A RESULT, HE HAD BEEN
DISCHARGED; AND THAT PETITIONERS HAD SINCE PREVENTED HIM FROM OBTAINING
WORK "AS A FOREMAN" BY REPRESENTING THAT HIS FOREMAN'S RIGHTS HAD BEEN
SUSPENDED.  HELD:  THE CASE ARGUABLY INVOLVED AN UNFAIR LABOR PRACTICE
OVER WHICH THE NATIONAL LABOR RELATIONS BOARD WOULD HAVE EXCLUSIVE
JURISDICTION, AND THE STATE COURT WAS PRECLUDED FROM EXERCISING
JURISDICTION.  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S.
236, FOLLOWED.  INTERNATIONAL ASSN. OF MACHINISTS V. GONZALES, 356 U.S.
617, DISTINGUISHED.  PP. 702-708. 

(A)  THE EXERCISE OF STATE JURISDICTION CANNOT BE SUSTAINED ON THE
GROUND THAT RESPONDENT WAS A "SUPERVISOR," WITHIN THE MEANING OF THE
NATIONAL LABOR RELATIONS ACT, SINCE IT APPEARED THAT HE WORKED
SOMETIMES AS A REGULAR IRONWORKER, SOMETIMES AS A FOREMAN, AND
SOMETIMES AS A SUPERINTENDENT, AND IT IS ENTIRELY POSSIBLE THAT THE
BOARD MIGHT CONCLUDE THAT A FOREMAN, UNDER THE FACTS OF THIS CASE, IS
AN EMPLOYEE AND THAT A MAN WHOSE STATUS FLUCTUATES, AS RESPONDENT'S
DID, IS ENTITLED TO CLAIM THE PROTECTION AFFORDED EMPLOYEES UNDER THE
ACT.  PP. 706-707. 

(B)  EVEN IF IT BE ASSUMED THAT RESPONDENT WAS NOT AN EMPLOYEE BUT
WAS SOLELY A SUPERVISOR, THERE IS A SUFFICIENT PROBABILITY THAT THE
MATTER WOULD STILL HAVE BEEN COGNIZABLE BY THE BOARD SO AS TO COMPEL
THE RELINQUISHMENT OF STATE JURISDICTION, SINCE IT MAY WELL BE THAT A
UNION'S INSISTENCE ON DISCHARGE OF A SUPERVISOR FOR FAILURE TO COMPLY
WITH UNION RULES WOULD VIOLATE SEC. 8(B)(1)(A) BY TENDING TO COERCE
NONSUPERVISORY EMPLOYEES INTO OBSERVING THOSE RULES, AND, IF A UNION
FORCES AN EMPLOYER TO DISCHARGE A SUPERVISOR, SUCH CONDUCT MIGHT WELL
VIOLATE SEC. 8(B)(1)(B), BECAUSE IT COERCES THE "EMPLOYER IN THE
SELECTION OF HIS REPRESENTATIVES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR THE ADJUSTMENT OF GRIEVANCES."  PP. 707-708. 

LOCAL NO. 207, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRON WORKERS UNION, ET AL. V. PERKO. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, INVOLVING A SUIT BY A UNION MEMBER AGAINST A LOCAL UNION,
RAISES ISSUES OF FEDERAL PREEMPTION SIMILAR TO THOSE CONSIDERED IN
LOCAL 100, UNITED ASSN. OF JOURNEYMEN V. BORDEN, ANTE, P. 690, ALSO
DECIDED TODAY. 

IN THE PRESENT CASE THE RESPONDENT, JACOB PERKO, FILED A COMPLAINT IN
A STATE COURT AGAINST LOCAL 207 OF THE INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS UNION AND CERTAIN OF ITS
OFFICERS, PETITIONERS HERE, SEEKING DAMAGES UNDER STATE COMMON LAW.  HE
ALLEGED THAT FOR SEVERAL YEARS HE HAD BEEN A MEMBER IN GOOD STANDING OF
THE IRON WORKERS LOCAL AND HAD BEEN EMPLOYED "AS A FOREMAN" BY THE
WILLIAM B. POLLOCK COMPANY; THAT THE DEFENDANTS WITHOUT JUSTIFICATION
HAD CONSPIRED TO DEPRIVE HIM OF THE RIGHT TO CONTINUE TO WORK "AS A
FOREMAN"; THAT PURSUANT TO THIS CONSPIRACY THEY HAD DEMANDED THAT THE
COMPANY DISCHARGE HIM FROM HIS DUTIES "AS SUPERINTENDENT AND FOREMAN";
THAT AS A RESULT HE HAD BEEN DISCHARGED, AND DEFENDANTS HAD SINCE
PREVENTED HIM FROM OBTAINING WORK "AS A FOREMAN IN IRONWORK BY
REPRESENTING THAT PLAINTIFF'S FOREMAN'S RIGHTS HAD BEEN SUSPENDED"; AND
THAT HE WAS ENTITLED TO DAMAGES FOR PAST AND FUTURE LOSS OF EARNINGS IN
THE AMOUNT OF $75,000. 

AN ORDER OF THE TRIAL COURT THAT THE COMPLAINT BE DISMISSED WAS
REVERSED BY THE SUPREME COURT OF OHIO AND THE CASE REMANDED FOR TRIAL,
168 OHIO ST. 161, 151 N.E.2D 742.  THE COURT DISPOSED OF THE UNION'S
ARGUMENT THAT PERKO HAD FAILED TO EXHAUST INTERNAL UNION REMEDIES BY
NOTING THAT: 

"PLAINTIFF IS NOT ATTEMPTING TO SECURE ANY REDRESS OF LOSS OF RIGHTS
AS A MEMBER OF THE UNION  ...  .  HE IS ALLEGING THAT THE UNION TO
WHICH HE BELONGED AND CERTAIN NAMED OFFICIALS THEREOF COMMITTED A
COMMON-LAW TORT AGAINST HIM BY CONSPIRING TO DEPRIVE HIM OF HIS RIGHT
TO EARN A LIVING AND INTERFERING WITH HIS CONTRACT OF EMPLOYMENT  ...
."  168 OHIO ST., AT 162, 151 N.E.2D, AT 744. 

IN ANSWER TO THE UNION'S ARGUMENT THAT FEDERAL LAW PRECLUDED THE
EXERCISE OF STATE JURISDICTION, THE COURT STATED THAT THERE WAS NO
FEDERAL PREEMPTION WITH REGARD TO A STATE ACTION "TO RECOVER DAMAGES
FOR A COMMON-LAW TORT, WHICH IS ALSO AN UNFAIR LABOR PRACTICE," CITING
INTERNATIONAL ASSN. OF MACHINISTS V. GONZALES, 356 U.S. 617. 

AT TRIAL, A VERDICT WAS DIRECTED FOR PETITIONERS, BUT THIS RULING WAS
REVERSED ON APPEAL, AND A SECOND TRIAL WAS HELD.  THE EVIDENCE AT THIS
TRIAL SHOWED THAT PERKO HAD GENERALLY WORKED FOR THE COMPANY AS A
"FOREMAN" OR SUPERINTENDENT"; (FN1) THAT IN DECEMBER 1953 HE WAS
WORKING AS A SUPERINTENDENT ON A PARTICULAR PROJECT; THAT IN THAT
CAPACITY HE GAVE INSTRUCTIONS TO BOILERMAKERS WITH RESPECT TO
PERFORMANCE OF CERTAIN PHASES OF THE WORK THAT THE IRON WORKERS
CLAIMED; AND THAT FOLLOWING THIS INCIDENT PERKO WAS CHARGED BY MEMBERS
OF PETITIONER LOCAL WITH ASSISTING BOILERMAKERS IN VIOLATION OF THE
UNION'S RULE (FN2) AND WAS FOUND GUILTY, FINED AND SUSPENDED FROM
MEMBERSHIP.  THE FINE, HOWEVER, WAS LATER SUSPENDED AND PERKO WAS
PLACED ON PROBATION, BEING PERMITTED TO RESUME PAYMENT OF DUES. 

ACCORDING TO THE EVIDENCE INTRODUCED BY PERKO, THE IRON WORKERS
INFORMED THE COMPANY, AFTER SETTLEMENT OF THE JURISDICTIONAL DISPUTE
WITH THE BOILERMAKERS, THAT THEY WOULD NO LONGER TAKE ORDERS FROM PERKO
BECAUSE HE HAD BEEN "EDUCATING THE BOILERMAKERS IN THEIR PARTICULAR
WORK."  SOME WEEKS AFTER COMPLETION OF THE PROJECT, THE COMPANY LAID
HIM OFF "DUE TO HIS DISPUTE WITH THE UNION," AND PERKO DID NOT
THEREAFTER OBTAIN EMPLOYMENT WITH POLLOCK, OR WITH ANY OTHER COMPANY
EITHER AS A SUPERINTENDENT OR AS A FOREMAN. 

THE JURY BROUGHT IN A VERDICT OF $25,000 FOR PERKO, AND THE JUDGMENT
WAS AFFIRMED BY THE COURT OF APPEALS.  90 OHIO L. ABS.  65, 187 N.E.2D
407.  THAT COURT REJECTED AGAIN THE CONTENTION THAT THE STATE WAS
WITHOUT JURISDICTION, AND HELD ON THE MERITS THAT ALTHOUGH "THERE IS
VERY LITTLE THAT SUPPORTS THE CAUSE SUED ON HERE," THE EVIDENCE WAS
SUFFICIENT TO SUSTAIN THE VERDICT.  THE SUPREME COURT OF OHIO DISMISSED
AN APPEAL "FOR THE REASON THAT NO DEBATABLE CONSTITUTIONAL QUESTION IS
INVOLVED."  173 OHIO ST. 576, 184 N.E.2D 100.  WE GRANTED CERTIORARI,
371 U.S. 939, TO CONSIDER THE PETITIONER'S CLAIM THAT THE STATE LACKED
JURISDICTION OVER THIS DISPUTE BY VIRTUE OF THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 449, AS AMENDED, 29 U.S.C.  SECS. 151-168. 

AT THE OUTSET WE NOTE THAT FOR THE REASONS SET FORTH IN BORDEN, ANTE,
P. 690, THE RATIONALE OF THE GONZALES CASE DOES NOT SUPPORT STATE
JURISDICTION HERE, AND WE NEED NOT NOW CONSIDER THE PRESENT VITALITY OF
THAT RATIONALE IN THE LIGHT OF MORE RECENT DECISIONS.  AS IN BORDEN,
THE CRUX OF THE ACTION HERE CONCERNED ALLEGED INTERFERENCE WITH THE
PLAINTIFF'S EXISTING OR PROSPECTIVE EMPLOYMENT RELATIONS AND WAS NOT
DIRECTED TO INTERNAL UNION MATTERS.  INDEED THE STATE COURT ITSELF
OBSERVED THAT "PLAINTIFF IS NOT ATTEMPTING TO SECURE ANY REDRESS FOR
LOSS OF RIGHTS AS A MEMBER OF THE UNION."  SUPRA, P. 703.  THUS THERE
WAS NO PERMISSIBLE STATE REMEDY TO WHICH THE AWARD OF CONSEQUENTIAL
DAMAGES FOR LOSS OF EARNINGS MIGHT BE SUBORDINATED. 

RESPONDENT CONTENDS, HOWEVER, THAT IN ANY EVENT THE EXERCISE OF STATE
JURISDICTION IS NOT PRECLUDED BECAUSE THE MATTER IS CLEARLY NOT SUBJECT
TO THE LABOR BOARD'S COGNIZANCE.  (FN3)  THE BASIS OF THIS CONTENTION
IS RESPONDENT'S CLAIM THAT HE WAS A JOB SUPERINTENDENT, AND THUS A
"SUPERVISOR" WITHIN THE MEANING OF THE ACT, (FN4) AT THE TIME OF THE
ALLEGED TORT AND THAT HE WAS THUS EXCLUDED FROM THE SCOPE, OPERATION,
AND PROTECTION OF FEDERAL LAW.  THERE ARE, WE BELIEVE, TWO INDEPENDENT
AND CONCLUSIVE ANSWERS TO THIS ARGUMENT, BOTH OF WHICH ESTABLISH THAT
THIS MATTER FALLS SQUARELY WITHIN THE PREEMPTION PRINCIPLES DECLARED IN
SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236. 

FIRST, EVEN IF IT IS CONCEDED THAT A JOB SUPERINTENDENT IS A
SUPERVISOR, IT IS AT LEAST REASONABLY ARGUABLE THAT A FOREMAN, AS THE
TERM HAS BEEN USED IN THIS CASE, IS AN "EMPLOYEE" WITHIN THE MEANING OF
THE ACT, SINCE HIS FUNCTION IS APPARENTLY TO TRANSMIT INSTRUCTIONS, NOT
TO ORIGINATE THEM.  SEE, E.G., NEW YORK SHIPPING ASSN., 116 N.L.R.B.
1183.  PERKO IN HIS COMPLAINT ALLEGED THAT HE HAD WORKED FOR MANY YEARS
"AS A FOREMAN," THAT THE ACTIONS OF THE DEFENDANT WERE DESIGNED TO
CAUSE HIS DISCHARGE "AS SUPERINTENDENT AND FOREMAN," AND THAT HE WAS
SUBSEQUENTLY PREVENTED FROM OBTAINING EMPLOYMENT "AS A FOREMAN."  THE
EVIDENCE INDICATED THAT PERKO SOMETIMES WORKED FOR POLLOCK AS A REGULAR
IRON WORKER IN A GANG, SOMETIMES AS A FOREMAN, AND SOMETIMES AS A
SUPERINTENDENT. 

IT IS EVIDENT THAT THIS CASE PRESENTS DIFFICULT PROBLEMS OF
DEFINITION OF STATUS, PROBLEMS WHICH WE HAVE HELD ARE PRECISELY "OF A
KIND MOST WISELY ENTRUSTED INITIALLY TO THE AGENCY CHARGED WITH THE DAY
TO-DAY ADMINISTRATION OF THE ACT AS A WHOLE."  MARINE ENGINEERS
BENEFICIAL ASSN. V. INTERLAKE STEAMSHIP CO., 370 U.S. 173, 180.  IT IS
ENTIRELY POSSIBLE THAT THE BOARD MIGHT CONCLUDE THAT A FOREMAN UNDER
THE FACTS OF THIS CASE IS AN EMPLOYEE AND THAT A MAN WHOSE STATUS
FLUCTUATES, AS PERKO'S SEEMINGLY DID, IS ENTITLED TO CLAIM THE
PROTECTION AFFORDED EMPLOYEES UNDER THE ACT.  GIVEN SUCH A CONCLUSION,
PERKO'S COMPLAINT - THAT THE PETITIONERS CAUSED HIS DISCHARGE AND
PREVENTED HIS SUBSEQUENT EMPLOYMENT AS A FOREMAN AS WELL AS A
SUPERINTENDENT - FALLS WITHIN THE AMBIT OF THE UNFAIR LABOR PRACTICES
PROHIBITED BY SECS. 8(B)(1)(A) AND 8(B)(2) OF THE ACT.  (FN5)  AND
SINCE PETITIONERS' ACTIONS APPARENTLY RESULTED FROM PERKO'S VIOLATION
OF A UNION RULE, THERE IS A REASONABLE LIKELIHOOD THAT ON THESE
PREMISES THE BOARD WOULD HAVE FOUND SUCH UNFAIR LABOR PRACTICES TO HAVE
BEEN COMMITTED.  SEE THE DISCUSSION IN THE BORDEN CASE, ANTE, PP. 694
695. 

SECOND, EVEN IF IT BE ASSUMED THAT PERKO WAS NOT AN EMPLOYEE BUT WAS
SOLELY A SUPERVISOR, THERE IS A SUFFICIENT PROBABILITY THAT THE MATTER
WOULD STILL HAVE BEEN COGNIZABLE BY THE BOARD SO AS TO COMPEL THE
RELINQUISHMENT OF STATE JURISDICTION.  IT HAS BEEN HELD THAT DISCHARGE
OF A SUPERVISOR FOR FAILURE EFFECTIVELY TO COERCE EMPLOYEES INTO
RENOUNCING THEIR UNION AFFILIATION CONSTITUTES A VIOLATION OF SEC.
8(A)(1) BECAUSE SUCH A DISCHARGE WOULD REASONABLY CAUSE NONSUPERVISORY
EMPLOYEES TO FEAR THAT THEY MIGHT MEET THE SAME FATE IF THEY ADHERED TO
THE UNION; AND IN SUCH INSTANCES THE BOARD HAS BEEN SUSTAINED IN
ORDERING REINSTATEMENT OF THE SUPERVISOR WITH BACK PAY.  LABOR BOARD V.
TALLADEGA COTTON FACTORY, INC., 213 F.2D 209; CF. LABOR BOARD V. BETTER
MONKEY GRIP CO., 243 F.2D 836.  SO HERE, IT MAY WELL BE THAT A UNION'S
INSISTENCE ON DISCHARGE OF A SUPERVISOR FOR FAILURE TO COMPLY WITH
UNION RULES WOULD VIOLATE SEC. 8(B)(1)(A) BECAUSE IT WOULD INEVITABLY
TEND TO COERCE NONSUPERVISORY EMPLOYEES INTO OBSERVING THOSE RULES.  IF
SO, IT WOULD SURELY BE WITHIN THE BOARD'S POWER UNDER SEC. 10(C) TO
ORDER THE UNION TO REIMBURSE THE SUPERVISOR FOR LOST WAGES. 

MOREOVER, IF A UNION FORCES AN EMPLOYER TO DISCHARGE A SUPERVISOR,
SUCH CONDUCT MAY WELL VIOLATE SEC. 8(B)(1)(B) BECAUSE IT COERCES THE
"EMPLOYER IN THE SELECTION OF HIS REPRESENTATIVES FOR THE PURPOSES OF
COLLECTIVE BARGAINING OR THE ADJUSTMENT OF GRIEVANCES."  CF.
INTERNATIONAL TYPOGRAPHICAL UNION V. LABOR BOARD, 278 F.2D 6, AFF'D IN
PART BY AN EQUALLY DIVIDED COURT, 365 U.S. 705; LABOR BOARD V. LOCAL
294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 284 F.2D 893.  WHETHER A
"JOB SUPERINTENDENT" LIKE PERKO HAS SUFFICIENT RESPONSIBILITIES WITH
REGARD TO GRIEVANCES TO BRING THIS SECTION INTO PLAY CANNOT BE
ASCERTAINED ON THIS RECORD, AND IN ANY EVENT WOULD BE A QUESTION FOR
INITIAL DETERMINATION BY THE BOARD.  BUT THE PROBABILITY THAT SUCH A
VIOLATION OF SEC. 8(B)(1)(B) MIGHT HAVE OCCURRED, ESPECIALLY IN VIEW OF
PERKO'S ROLE IN THE INTERUNION DISPUTE THAT GAVE RISE TO THE PRESENT
CONTROVERSY, IS CERTAINLY NOT INSIGNIFICANT. 

WE DO NOT OF COURSE INTIMATE ANY VIEW ON THE MERITS OF ANY OF THE
UNDERLYING SUBSTANTIVE QUESTIONS, THAT IS, WHETHER THE UNION WAS GUILTY
OF A VIOLATION OF THE ACT.  IT IS ENOUGH TO HOLD, AS WE DO, THAT IT IS
PLAIN ON A NUMBER OF SCORES THAT THE SUBJECT MATTER OF THIS LAWSUIT
"ARGUABLY" COMES WITHIN THE BOARD'S JURISDICTION TO DEAL WITH UNFAIR
LABOR PRACTICES.  WE THEREFORE CONCLUDE THAT THE STATE MUST YIELD
JURISDICTION AND JUDGMENT BELOW MUST BE REVERSED. 

FN1  THE RECORD INDICATES THAT AS USED IN THIS CASE A
"SUPERINTENDENT" IS THE SUPERVISOR OF AN ENTIRE CONSTRUCTION PROJECT,
WHO HAS WORKING UNDER HIM GROUPS OF EMPLOYEES OF VARIOUS CRAFTS.  ONE
MEMBER OF EACH SUCH CRAFT GROUP IS DESIGNATED AS ITS "FOREMAN" AND HAS
THE RESPONSIBILITY OF RECEIVING ORDERS FROM THE SUPERINTENDENT AND
TRANSMITTING THEM TO HIS PARTICULAR CREW. 

FN2  THE RULE PROVIDED THAT "ANY MEMBER THAT LEAVES THE IRON WORKERS
TO GO IN AS A BOILERMAKER OR ASSIST THEM IN ANY WAY WILL BE FINED
$500." 

FN3  RESPONDENT DOES NOT CHALLENGE THE EXISTENCE OF THE REQUISITE
EFFECT ON COMMERCE TO BRING THE MATTER WITHIN THE SCOPE OF THE BOARD'S
JURISDICTION. 

FN4  SECTION 2(3) OF THE ACT DEFINES "EMPLOYEE" AS NOT INCLUDING "ANY
INDIVIDUAL EMPLOYED AS A SUPERVISOR."  SECTION 2(11) DEFINES
"SUPERVISOR" AS MEANING "ANY INDIVIDUAL HAVING AUTHORITY, IN THE
INTEREST OF THE EMPLOYER, TO HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL,
PROMOTE, DISCHARGE, ASSIGN, REWARD, OR DISCIPLINE OTHER EMPLOYEES, OR
RESPONSIBLY TO DIRECT THEM, OR TO ADJUST THEIR GRIEVANCES, OR
EFFECTIVELY TO RECOMMEND SUCH ACTION, IF IN CONNECTION WITH THE
FOREGOING THE EXERCISE OF SUCH AUTHORITY IS NOT OF A MERELY ROUTINE OR
CLERICAL NATURE, BUT REQUIRES THE USE OF INDEPENDENT JUDGMENT." 

FN5  SECTION 8(B) OF THE ACT PROVIDES THAT IT SHALL BE AN UNFAIR
LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS "(1) TO RESTRAIN
OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN
DISCRIMINATE AGAINST AN EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3)  ...
."  SECTION 8(A) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE
FOR AN EMPLOYER "(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  ...  ." 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK DISSENT FOR THE REASONS
STATED IN THEIR DISSENT IN NO. 541, LOCAL 100, UNITED ASSN. OF
JOURNEYMEN V. BORDEN, ANTE, P. 698. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







UNITED STATES V. CARLO BIANCHI & CO. 373 U.S. 709 


NO. 529.  ARGUED APRIL 29, 1963.  - DECIDED JUNE 3, 1963.  - 157 CT. CL.
- , JUDGMENT VACATED AND CAUSE REMANDED. 


THE SO-CALLED "WUNDERLICH ACT" OF MAY 11, 1954, 68 STAT. 81, PROVIDES,
IN SUBSTANCE, THAT A DEPARTMENTAL DECISION ON A QUESTION OF FACT
PURSUANT TO A "DISPUTES" CLAUSE IN A GOVERNMENT CONTRACT SHALL BE FINAL
AND CONCLUSIVE IN ACCORDANCE WITH THE PROVISIONS OF THE CONTRACT,
"UNLESS THE SAME IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY
ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE."  HELD:  IN A SUIT ON A GOVERNMENT CONTRACT,
APART FROM QUESTIONS OF FRAUD, DETERMINATION OF THE FINALITY TO BE
ATTACHED TO A DEPARTMENTAL DECISION ON A QUESTION ARISING UNDER A
"DISPUTES" CLAUSE MUST REST SOLELY ON CONSIDERATION OF THE RECORD
BEFORE THE DEPARTMENT, AND NO NEW EVIDENCE MAY BE RECEIVED OR
CONSIDERED.  PP. 709-718. 

UNITED STATES V. CARLO BIANCHI & CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE INTERPRETATION AND APPLICATION OF THE
"WUNDERLICH ACT," 68 STAT.  81, 41 U.S.C. SECS. 321-322, (FN1) AN ACT
DESIGNED TO PERMIT JUDICIAL REVIEW OF DECISIONS MADE BY FEDERAL
DEPARTMENTS AND AGENCIES UNDER STANDARD "DISPUTES" CLAUSES (FN2) IN
GOVERNMENT CONTRACTS.  THE ISSUE BEFORE US IS WHETHER, IN A SUIT
GOVERNED BY THIS STATUTE, THE COURT IS RESTRICTED TO A REVIEW OF THE
ADMINISTRATIVE RECORD ON ISSUES OF FACT SUBMITTED TO ADMINISTRATIVE
DETERMINATION OR IS FREE TO RECEIVE NEW EVIDENCE ON SUCH ISSUES. 

IN 1946, THE RESPONDENT, CARLO BIANCHI AND COMPANY, ENTERED INTO A
CONTRACT WITH THE ARMY CORPS OF ENGINEERS FOR THE CONSTRUCTION OF A
FLOOD-CONTROL DAM.  INCLUDED IN THE WORK TO BE PERFORMED WAS THE
CONSTRUCTION OF A 710-FOOT TUNNEL, DESIGNED FOR THE DIVERSION OF WATER,
TO BE LINED WITH CONCRETE AND TO HAVE PERMANENT STEEL SUPPORTS AS
PROTECTION FOR A 50-FOOT SECTION AT EITHER END.  THE SPECIFICATIONS DID
NOT CALL FOR SUCH PERMANENT SUPPORTS THROUGHOUT THE REMAINDER OF THE
TUNNEL BUT ONLY FOR "TEMPORARY TUNNEL PROTECTION  ...  WHERE REQUIRED
FOR SAFETY OF THE WORKMEN."  THE CONTRACT CONTAINED A STANDARD "CHANGED
CONDITIONS" CLAUSE, AUTHORIZING THE CONTRACTING OFFICER TO PROVIDE FOR
AN INCREASE IN COST IF THE CONTRACTOR ENCOUNTERED SUBSURFACE CONDITIONS
MATERIALLY DIFFERENT FROM THOSE INDICATED IN THE CONTRACT OR TO BE
REASONABLY ANTICIPATED, AND ALSO CONTAINED THE STANDARD "DISPUTES"
CLAUSE QUOTED, SUPRA, NOTE 2. 

AFTER THE TUNNEL HAD BEEN DRILLED BY A SUBCONTRACTOR, BUT BEFORE IT
WAS LINED WITH CONCRETE, THE RESPONDENT TOOK THE POSITION THAT
UNFORESEEN CONDITIONS CREATED EXTREME HAZARDS FOR WORKMEN, REQUIRING
PERMANENT PROTECTION THROUGHOUT THE TUNNEL, AND THAT IT SHOULD BE
COMPENSATED FOR INSTALLING SUCH PROTECTION.  THE CONTRACTING OFFICER
DECIDED THAT COMPENSATION WOULD NOT BE MADE, AND PURSUANT TO THE
"DISPUTES" CLAUSE A TIMELY APPEAL FROM HIS DECISION WAS TAKEN TO THE
BOARD OF CLAIMS AND APPEALS OF THE CORPS OF ENGINEERS.  WHILE THE
APPEAL WAS PENDING, RESPONDENT INSTALLED THE TUNNEL SUPPORTS AND
COMPLETED WORK ON THE TUNNEL. 

AN ADVERSARY HEARING WAS HELD BEFORE THE BOARD, AT WHICH A RECORD WAS
MADE AND EACH SIDE OFFERED ITS EVIDENCE AND HAD AN OPPORTUNITY FOR
CROSS-EXAMINATION.  IN DECEMBER 1948, THE BOARD ISSUED A DECISION
AGAINST THE CONTRACTOR, RESOLVING CERTAIN CONFLICTS IN THE EVIDENCE IN
FAVOR OF THE GOVERNMENT AND HOLDING IN SUBSTANCE THAT THERE WERE NO
UNANTICIPATED OR UNFORESEEN CONDITIONS REQUIRING THE USE OF PERMANENT
STEEL PROTECTION THROUGHOUT THE TUNNEL. 

ALMOST SIX YEARS LATER, IN DECEMBER 1954, RESPONDENT BROUGHT THE
PRESENT ACTION FOR BREACH OF CONTRACT IN THE COURT OF CLAIMS, SEEKING
SUBSTANTIAL DAMAGES AND ALLEGING THAT THE DECISIONS OF THE CONTRACTING
OFFICER AND THE BOARD WERE "CAPRICIOUS OR ARBITRARY OR SO GROSSLY
ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR WERE NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE."  AT A HEARING BEFORE A COMMISSIONER IN 1956, THE
GOVERNMENT TOOK THE POSITION THAT ON THE QUESTION WHETHER THE BOARD'S
DECISION WAS ENTITLED TO BE CONSIDERED FINAL, NO EVIDENCE WAS
ADMISSIBLE EXCEPT THE RECORD BEFORE THE BOARD.  BUT THE COMMISSIONER
RECEIVED EVIDENCE DE NOVO, INCLUDING, OVER GOVERNMENT OBJECTION, A
SUBSTANTIAL AMOUNT OF EVIDENCE THAT HAD NOT BEEN BEFORE THE BOARD.  HE
SUBSEQUENTLY MADE EXTENSIVE FINDINGS OF FACT AND CONCLUDED THAT THE
RESPONDENT WAS ENTITLED TO RECOVER. 

IN AN OPINION ISSUED IN JANUARY 1959, THE COURT OF CLAIMS ACCEPTED
THE COMMISSIONER'S FINDINGS AND CONCLUSIONS, RULING THAT "ON
CONSIDERATION OF ALL THE EVIDENCE, THE CONTRACTING OFFICER'S DECISION
(AS AFFIRMED BY THE BOARD) CANNOT BE SAID TO HAVE SUBSTANTIAL SUPPORT,"
AND THUS "DOES NOT HAVE FINALITY."  144 CT. CL. 500, 506, 169 F. SUPP.
514, 517.  ON THE QUESTION WHETHER IT WAS LIMITED IN ITS CONSIDERATION
TO THE EVIDENCE BEFORE THE BOARD, THE COURT STATED: 

"IN OUR OPINION IN VOLENTINE AND LITTLETON V. UNITED STATES, 136 C.
CLS. 638, HOLDING THAT THE TRIAL IN THIS COURT SHOULD NOT BE LIMITED TO
THE RECORD MADE BEFORE THE CONTRACTING AGENCY, BUT SHOULD BE DE NOVO,
WE RECOGNIZED THAT THERE WERE LOGICAL WEAKNESSES IN OUR POSITION.  WE
CONCLUDED, HOWEVER, THAT THE INTENT OF CONGRESS IN ENACTING THE
WUNDERLICH ACT WAS IN ACCORD WITH OUR CONCLUSION, AND WE ADHERE TO THAT
CONCLUSION IN THIS CASE."  IBID. 

AFTER RECEIVING ADDITIONAL EVIDENCE ON DAMAGES, THE COURT ENTERED
JUDGMENT FOR RESPONDENT IN THE AMOUNT OF $149,617.36.  157 CT. CL. - .
WE GRANTED CERTIORARI, 371 U.S. 939, TO RESOLVE A CONFLICT AMONG THE
LOWER COURTS (FN3) ON THE IMPORTANT QUESTION OF THE KIND OF JUDICIAL
PROCEEDING TO BE AFFORDED IN CASES GOVERNED BY THE WUNDERLICH ACT. 

                               I. 

THE JURISDICTION OF THE COURT OF CLAIMS IN THE PRESENT CASE IS
CONFERRED BY 28 U.S.C. SEC. 1491, SINCE THIS IS A SUIT FOR JUDGMENT
AGAINST THE UNITED STATES "FOUNDED" UPON AN "EXPRESS OR IMPLIED
CONTRACT WITH THE UNITED STATES."  ORDINARILY, WHEN QUESTIONS OF FACT
ARISE IN SUCH SUITS, THE FUNCTION OF THE COURT IS TO RECEIVE EVIDENCE
AND TO MAKE APPROPRIATE FINDINGS AS TO THE FACTS IN DISPUTE.  BUT THIS
COURT LONG AGO UPHELD THE VALIDITY OF CLAUSES IN GOVERNMENT CONTRACTS
DELEGATING TO A GOVERNMENT EMPLOYEE THE AUTHORITY TO MAKE
DETERMINATIONS OF DISPUTED QUESTIONS OF FACT, AND REQUIRED SUCH
DETERMINATIONS TO BE GIVEN CONCLUSIVE EFFECT IN ANY SUBSEQUENT SUIT IN
THE ABSENCE OF FRAUD OR GROSS MISTAKE IMPLYING FRAUD OR BAD FAITH.  SEE
KIHLBERG V. UNITED STATES, 97 U.S. 398; RIPLEY V. UNITED STATES, 223
U.S. 695.  THUS THE FUNCTION OF THE COURT OF CLAIMS IN MATTERS GOVERNED
BY "DISPUTES" CLAUSES WAS IN EFFECT TO GIVE AN EXTREMELY LIMITED REVIEW
OF THE ADMINISTRATIVE DECISION, AND ALTHOUGH THE SCOPE OF REVIEW WAS
SOMEWHAT EXPANDED BY THAT COURT OVER THE YEARS, (FN4) IT WAS EXPRESSLY
RESTRICTED IN UNITED STATES V. WUNDERLICH, 342 U.S. 98, 100, TO
DETERMINING WHETHER OR NOT THE DEPARTMENTAL DECISION HAD BEEN FOUNDED
ON FRAUD, I.E., "CONSCIOUS WRONGDOING, AN INTENTION TO CHEAT OR BE
DISHONEST." 

THE WUNDERLICH DECISION, RENDERED OVER STRONG DISSENTS, EVOKED
CONSIDERABLE EFFORT TO OBTAIN LEGISLATION EXPANDING THE SCOPE OF REVIEW
BEYOND QUESTIONS OF FRAUD.  A NUMBER OF BILLS WERE INTRODUCED IN THE
EIGHTY-SECOND AND EIGHTY-THIRD CONGRESSES; HEARINGS WERE HELD IN THE
SENATE (FN5) AND HOUSE OF REPRESENTATIVES; (FN6) AND THE RESULTING
STATUTE KNOWN AS THE "WUNDERLICH ACT" WAS ULTIMATELY APPROVED BY BOTH
HOUSES IN 1954.  THIS STATUTE, QUOTED IN FULL IN NOTE 1, SUPRA, IS
ENTITLED AN ACT "TO PERMIT REVIEW OF DECISIONS OF THE HEADS OF
DEPARTMENTS  ...  INVOLVING QUESTIONS ARISING UNDER GOVERNMENT
CONTRACTS," AND PROVIDES IN SUBSTANCE THAT A DEPARTMENTAL DECISION ON A
QUESTION OF FACT RENDERED PURSUANT TO A "DISPUTES" CLAUSE SHALL BE
FINAL AND CONCLUSIVE IN ACCORDANCE WITH THE PROVISIONS OF THE
CONTRACT: 

"UNLESS THE SAME IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO
GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE." 

RESPONDENT HAS NOT ARGUED IN THIS COURT THAT THE UNDERLYING
CONTROVERSY IN THE PRESENT SUIT IS BEYOND THE SCOPE OF THE "DISPUTES"
CLAUSE IN THE CONTRACT OR THAT IT IS NOT GOVERNED BY THE QUOTED
LANGUAGE IN THE WUNDERLICH ACT.  THUS THE SOLE ISSUE, AS STATED SUPRA,
P. 710, IS WHETHER THE COURT OF CLAIMS IS LIMITED TO THE ADMINISTRATIVE
RECORD WITH RESPECT TO THAT CONTROVERSY OR IS FREE TO TAKE NEW
EVIDENCE.  IN CONSIDERING THIS ISSUE, WE PUT TO ONE SIDE QUESTIONS OF
FRAUD, WHICH ARE NOT INVOLVED IN THIS CASE, WHICH NORMALLY REQUIRE THE
RECEIPT OF EVIDENCE OUTSIDE THE ADMINISTRATIVE RECORD FOR THEIR
RESOLUTION, AND WHICH COULD BE CONSIDERED IN JUDICIAL PROCEEDINGS EVEN
PRIOR TO THE ENACTMENT OF THE STATUTE. 

IT IS OUR CONCLUSION THAT, APART FROM QUESTIONS OF FRAUD,
DETERMINATION OF THE FINALITY TO BE ATTACHED TO A DEPARTMENTAL DECISION
ON A QUESTION ARISING UNDER A "DISPUTES" CLAUSE MUST REST SOLELY ON
CONSIDERATION OF THE RECORD BEFORE THE DEPARTMENT.  THIS CONCLUSION IS
BASED BOTH ON THE LANGUAGE OF THE STATUTE AND ON ITS LEGISLATIVE
HISTORY. 

1.  WITH RESPECT TO THE LANGUAGE USED, WE NOTE THAT THE STATUTE IS
DESIGNATED AS AN ACT "TO PERMIT REVIEW" AND THAT THE REVIEWING FUNCTION
IS ONE ORDINARILY LIMITED TO CONSIDERATION OF THE DECISION OF THE
AGENCY OR COURT BELOW AND OF THE EVIDENCE ON WHICH IT WAS BASED. 
INDEED, IN CASES WHERE CONGRESS HAS SIMPLY PROVIDED FOR REVIEW, WITHOUT
SETTING FORTH THE STANDARDS TO BE USED OR THE PROCEDURES TO BE
FOLLOWED, THIS COURT HAS HELD THAT CONSIDERATION IS TO BE CONFINED TO
THE ADMINISTRATIVE RECORD AND THAT NO DE NOVO PROCEEDING MAY BE HELD. 
TAGG BROS. & MOORHEAD V. UNITED STATES, 280 U.S. 420; NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 227.  AND OF COURSE,
AS SHOWN BY THE TAGG BROS. AND NBC CASES THEMSELVES, THE FUNCTION OF
REVIEWING AN ADMINISTRATIVE DECISION CAN BE AND FREQUENTLY IS PERFORMED
BY A COURT OF ORIGINAL JURISDICTION AS WELL AS BY AN APPELLATE
TRIBUNAL. 

MOREOVER, THE STANDARDS OF REVIEW ADOPTED IN THE WUNDERLICH ACT -
"ARBITRARY," "CAPRICIOUS," AND "NOT SUPPORTED BY SUBSTANTIAL EVIDENCE"
HAVE FREQUENTLY BEEN USED BY CONGRESS AND HAVE CONSISTENTLY BEEN
ASSOCIATED WITH A REVIEW LIMITED TO THE ADMINISTRATIVE RECORD.  (FN7)
THE TERM "SUBSTANTIAL EVIDENCE" IN PARTICULAR HAS BECOME A TERM OF ART
TO DESCRIBE THE BASIS ON WHICH AN ADMINISTRATIVE RECORD IS TO BE JUDGED
BY A REVIEWING COURT.  THIS STANDARD GOES TO THE REASONABLENESS OF WHAT
THE AGENCY DID ON THE BASIS OF THE EVIDENCE BEFORE IT, FOR A DECISION
MAY BE SUPPORTED BY SUBSTANTIAL EVIDENCE EVEN THOUGH IT COULD BE
REFUTED BY OTHER EVIDENCE THAT WAS NOT PRESENTED TO THE DECISION-MAKING
BODY. 

2.  THE LEGISLATIVE HISTORY SUPPORTS OUR CONCLUSION THAT THE LANGUAGE
USED IN THE ACT SHOULD BE GIVEN ITS CUSTOMARY MEANING.  IT IS TRUE THAT
SEVERAL WITNESSES REPRESENTING CONTRACTORS EXPLAINED THE PURPOSE OF THE
PROPOSED LEGISLATION AS RESTORING RIGHTS THE CONTRACTORS HAD BEFORE
WUNDERLICH, (FN8) AND THAT IT HAD APPARENTLY BEEN THE PRACTICE OF THE
COURT OF CLAIMS TO RECEIVE EVIDENCE ON MATTERS COVERED BY "DISPUTES"
CLAUSES.  (FN9)  BUT IT SEEMS CLEAR IN CONTEXT THAT THESE WITNESSES
MEANT ONLY THAT THE STANDARDS OF REVIEW SHOULD COVER MORE THAN
CONSCIOUS FRAUD, AS THE COURT OF CLAIMS HAD ASSUMED PRIOR TO
WUNDERLICH.  INDEED WITH RESPECT TO THE PROCEDURAL SIGNIFICANCE OF THE
SUBSTANTIAL EVIDENCE TEST, A LEADING CONTRACTOR'S REPRESENTATIVE STATED
THAT IT WOULD: 

"RESULT IN THESE VARIOUS DEPARTMENTS AND AGENCIES FEELING THAT THEY
WILL HAVE TO PRODUCE THEIR WITNESSES AT THESE HEARINGS AND PERMIT THE
CONTRACTOR TO EXAMINE THEM, IN ORDER TO HAVE IN THE RECORD SOME
SUBSTANTIAL EVIDENCE TO SUPPORT THEIR DECISIONS WHEN THEY GO UP ON
APPEAL TO THE COURT."   (FN10) 

THE HOUSE REPORT RECOMMENDING THE BILL ULTIMATELY ENACTED LEAVES
LITTLE DOUBT THAT THE REVIEW INTENDED WAS ONE CONFINED TO THE
ADMINISTRATIVE RECORD.  H.R. REP. NO. 1380, 83D CONG., 2D SESS. THE
EXPLICIT REFERENCES TO THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT.  243,
5 U.S.C. SEC. 1009, AND TO THIS COURT'S DISCUSSION OF THE STANDARDS OF
REVIEW IN CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197, 229,
ARE ONLY THE LEAST INDICATIONS.  EVEN MORE SIGNIFICANT IS THE
COMMITTEE'S VIEW, ECHOING THAT OF THE WITNESS QUOTED ABOVE, THAT THE
STANDARDS PROPOSED WOULD REMEDY THE PRACTICE IN MANY DEPARTMENTS OF
FAILING TO ACQUAINT THE CONTRACTOR WITH THE EVIDENCE IN SUPPORT OF THE
GOVERNMENT'S POSITION: 

"IT IS BELIEVED THAT IF THE STANDARD OF SUBSTANTIAL EVIDENCE IS
ADOPTED THIS CONDITION WILL BE CORRECTED AND THAT THE RECORDS OF
HEARING OFFICERS WILL HEREAFTER CONTAIN ALL OF THE TESTIMONY AND
EVIDENCE UPON WHICH THEY HAVE RELIED IN MAKING THEIR DECISIONS.  IT
WOULD NOT BE POSSIBLE TO JUSTIFY THE RETENTION OF THE FINALITY CLAUSES
IN GOVERNMENT CONTRACTS UNLESS THE HEARING PROCEDURES WERE CONDUCTED IN
SUCH A WAY AS TO REQUIRE EACH PARTY TO PRESENT OPENLY ITS SIDE OF THE
CONTROVERSY AND AFFORD AN OPPORTUNITY OF REBUTTAL."  H.R. REP.  NO.
1380, 83D CONG., 2D SESS. 5. 

THIS SOUND AND CLEARLY EXPRESSED PURPOSE WOULD BE FRUSTRATED IF
EITHER SIDE WERE FREE TO WITHHOLD EVIDENCE AT THE ADMINISTRATIVE LEVEL
AND THEN TO INTRODUCE IT IN A JUDICAL PROCEEDING.  MOREOVER, THE
CONSEQUENCE OF SUCH A PROCEDURE WOULD IN MANY INSTANCES BE A NEEDLESS
DUPLICATION OF EVIDENTIARY HEARINGS AND A HEAVY ADDITIONAL BURDEN IN
THE TIME AND EXPENSE REQUIRED TO BRING LITIGATION TO AN END.  THUS IN
THE PRESENT CASE JUDICIAL PROCEEDINGS BEGAN IN 1954, ALMOST SIX YEARS
AFTER COMPLETION OF THE DEPARTMENTAL PROCEEDINGS, AND A FINAL DECISION
ON THE ISSUE OF LIABILITY WAS NOT RENDERED UNTIL 1959.  THIS IS SURELY
DELAY AT ITS WORST, AND WE WOULD BE LOATH TO CONDONE ANY PROCEDURE
UNDER WHICH THE NEED FOR EXPEDITIOUS RESOLUTION WOULD BE SO ILL
SERVED.  HERE THE PROCEDURE IS CLEARLY INCONSISTENT WITH THE
LEGISLATIVE DIRECTIVE.    IT IS CONTENDED THAT THE COURT OF CLAIMS HAS
NO POWER TO REMAND A CASE SUCH AS THIS TO THE DEPARTMENT CONCERNED, CF.
UNITED STATES V. JONES, 336 U.S. 641, 670-671, AND THUS IF THE
ADMINISTRATIVE RECORD IS DEFECTIVE OR INADEQUATE, OR REVEALS THE
COMMISSION OF SOME PREJUDICIAL ERROR, THE COURT CAN ONLY HOLD AN
EVIDENTIARY HEARING AND PROCEED TO JUDGMENT.  THERE ARE, WE BELIEVE,
TWO ANSWERS TO THIS CONTENTION.  FIRST, THERE WOULD UNDOUBTEDLY BE
SITUATIONS IN WHICH THE COURT WOULD BE WARRANTED, ON THE BASIS OF THE
ADMINISTRATIVE RECORD, IN GRANTING JUDGMENT FOR THE CONTRACTOR WITHOUT
THE NEED FOR FURTHER ADMINISTRATIVE ACTION.  SECOND, IN SITUATIONS
WHERE THE COURT BELIEVED THAT THE EXISTING RECORD DID NOT WARRANT SUCH
A COURSE, BUT THAT THE DEPARTMENTAL DETERMINATION COULD NOT BE
SUSTAINED UNDER THE STANDARDS LAID DOWN BY CONGRESS, WE SEE NO REASON
WHY THE COURT COULD NOT STAY ITS OWN PROCEEDINGS PENDING SOME FURTHER
ACTION BEFORE THE AGENCY INVOLVED.   CF. PENNSYLVANIA R. CO. V. UNITED
STATES, 363 U.S. 202.  SUCH A STAY WOULD CERTAINLY BE JUSTIFIED WHERE
THE DEPARTMENT HAD FAILED TO MAKE ADEQUATE PROVISION FOR A RECORD THAT
COULD BE SUBJECTED TO JUDICIAL SCRUTINY, FOR IT WAS CLEARLY PART OF THE
LEGISLATIVE PURPOSE TO ACHIEVE UNIFORMITY IN THIS RESPECT.  AND IN ANY
CASE IN WHICH THE DEPARTMENT FAILED TO REMEDY THE PARTICULAR
SUBSTANTIVE OR PROCEDURAL DEFECT OR INADEQUACY, THE SANCTION OF
JUDGMENT FOR THE CONTRACTOR WOULD ALWAYS BE AVAILABLE TO THE COURT. 

    II. 

IN ITS ARGUMENT HERE, THE GOVERNMENT HAS URGED THAT IF JUDICIAL
REVIEW IS CONFINED TO THE ADMINISTRATIVE RECORD, IT MUST BE CONCLUDED
THAT THE BOARD'S DETERMINATION IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND
THUS IS ENTITLED TO FINALITY UNDER THE WUNDERLICH ACT.  THE RESPONDENT,
ON THE OTHER HAND, CONTENDS THAT THERE WERE SEVERAL IRREGULARITIES IN
THE BOARD'S PROCEDURES THAT PRECLUDE GIVING ITS DETERMINATION
CONCLUSIVE EFFECT. 

NEITHER OF THESE MATTERS IS PROPERLY EMBRACED WITHIN OUR GRANT OF
CERTIORARI, AND WE ARE THEREFORE NOT CALLED UPON TO PASS ON THEM.  WE
HOLD ONLY THAT IN ITS CONSIDERATION OF MATTERS WITHIN THE SCOPE OF THE
"DISPUTES" CLAUSE IN THE PRESENT CASE, THE COURT OF CLAIMS IS CONFINED
TO REVIEW OF THE ADMINISTRATIVE RECORD UNDER THE STANDARDS IN THE
WUNDERLICH ACT AND MAY NOT RECEIVE NEW EVIDENCE.  WE THEREFORE VACATE
THE JUDGMENT BELOW AND REMAND THE CASE FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  41 U.S.C. SEC. 321 PROVIDES:  "NO PROVISION OF ANY CONTRACT
ENTERED INTO BY THE UNITED STATES, RELATING TO THE FINALITY OR
CONCLUSIVENESS OF ANY DECISION OF THE HEAD OF ANY DEPARTMENT OR AGENCY
OR HIS DULY AUTHORIZED REPRESENTATIVE OR BOARD IN A DISPUTE INVOLVING A
QUESTION ARISING UNDER SUCH CONTRACT, SHALL BE PLEADED IN ANY SUIT NOW
FILED OR TO BE FILED AS LIMITING JUDICIAL REVIEW OF ANY SUCH DECISION
TO CASES WHERE FRAUD BY SUCH OFFICIAL OR HIS SAID REPRESENTATIVE OR
BOARD IS ALLEGED:  PROVIDED, HOWEVER, THAT ANY SUCH DECISION SHALL BE
FINAL AND CONCLUSIVE UNLESS THE SAME IS FRAUDULENT OR CAPRICIOUS OR
ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR
IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE." 

41 U.S.C. SEC. 322 PROVIDES:  "NO GOVERNMENT CONTRACT SHALL CONTAIN A
PROVISION MAKING FINAL ON A QUESTION OF LAW THE DECISION OF ANY
ADMINISTRATIVE OFFICIAL, REPRESENTATIVE, OR BOARD." 

FN2  THE STANDARD "DISPUTES" CLAUSE, AS INCLUDED IN THE CONTRACT
INVOLVED IN THIS CASE, PROVIDES: "EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED IN THIS CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT
ARISING UNDER THIS CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER
SUBJECT TO WRITTEN APPEAL BY THE CONTRACTOR WITHIN 30 DAYS TO THE HEAD
OF THE DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE,
WHOSE DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO. 
IN THE MEANTIME THE CONTRACTOR SHALL DILIGENTLY PROCEED WITH THE WORK
AS DIRECTED." 

FN3  WITH THE DECISION BELOW, COMPARE, E.G., ALLIED PAINT & COLOR
WORKS, INC., V. UNITED STATES, 309 F.2D 133 (C.A.2D CIR.); WELLS &
WELLS, INC., V. UNITED STATES, 269 F2D.  412 (C.A. 8TH CIR.). SEE ALSO
MANN CHEMICAL LABORATORIES, INC., V. UNITED STATES, 174 F. SUPP.  563
(D.C.D. MASS.).  IN SUITS INVOLVING LESS THAN $10,000, THE DISTRICT
COURTS HAVE CONCURRENT JURISDICTION WITH THE COURT OF CLAIMS OVER
CLAIMS ARISING UNDER GOVERNMENT CONTRACTS, 28 U.S.C. SEC. 1346(A)(2),
AND IN SUITS BY THE GOVERNMENT UNDER SUCH CONTRACTS HAVE EXCLUSIVE
JURISDICTION, SEE 28 U.S.C. SEC. 1345. 

FN4  SEE, E.G., SOUTHERN SHIPYARD CORP. V. UNITED STATES, 76 CT. CL.
468; NEEDLES V. UNITED STATES, 101 CT. CL. 535. 

FN5  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE
ON S. 2487, 82D CONG., 2D SESS. 

FN6  HEARINGS BEFORE THE HOUSE JUDICIARY COMMITTEE ON H.R. 1839 ET
AL., 83D CONG., 1ST SESS. 

FN7  SEE, E.G., SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT.
243, 5 U.S.C. SEC. 1009; SEC. 10 OF THE FAIR LABOR STANDARDS ACT, 52
STAT. 1065, AS AMENDED, 29 U.S.C. SEC. 210; SEC. 10 OF THE NATIONAL
LABOR RELATIONS ACT, 49 STAT. 453, AS AMENDED, 29 U.S.C. SEC. 160. 

FN8  SEE, E.G., SENATE HEARINGS, SUPRA, NOTE 5, AT 32-35, 57-58. 

FN9  THE GOVERNMENT, CITING NEEDLES V. UNITED STATES, 101 CT. CL.
535, 606-607, SUGGESTS THAT ALTHOUGH THE COURT OF CLAIMS DID RECEIVE
"LIVE" EVIDENCE ON SUCH MATTERS, IT MAY NOT HAVE "CONSCIOUSLY
CONSIDERED EVIDENCE NOT PRESENTED AND NOT AVAILABLE TO THE
ADMINISTRATIVE OFFICERS MAKING THE FINAL ADMINISTRATIVE DECISION." 

FN10  HOUSE HEARINGS, SUPRA, NOTE 6, AT 79-80. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE STEWART CONCURS,
DISSENTING. 

THE PETITION TO THE COURT OF CLAIMS ALLEGED THAT CHANGED SUBSURFACE
CONDITIONS REQUIRED RESPONDENT TO INSTALL PERMANENT TUNNEL PROTECTION
BY THE USE OF STEEL ARCH RIBS AND STEEL LINER PLATES, THAT THAT WORK
DELAYED COMPLETION OF THE PROJECT AND INCREASED ITS COST, FOR WHICH
RESPONDENT SHOULD BE REIMBURSED, AND THAT THE DECISION OF THE CORPS OF
ENGINEERS IN REJECTING THE CLAIM WAS "CAPRICIOUS" OR "ARBITRARY." 

THE WUNDERLICH ACT, 41 U.S.C. SEC. 321, MAKES "FINAL AND CONCLUSIVE"
ANY DECISION BY A FEDERAL AGENCY UNDER CUSTOMARY DISPUTES CLAUSES IN
GOVERNMENT CONTRACTS WITH SEVERAL EXCEPTIONS - "UNLESS THE SAME IS
FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS AS
NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE." 

I THINK THE DECISION WAS "CAPRICIOUS OR ARBITRARY" BECAUSE EVIDENCE
WAS CONSIDERED BY THE APPEALS BOARD IN MAKING ITS DECISION WHICH THE
CLAIMANT DID NOT SEE AND WHICH HE HAD NO OPPORTUNITY TO REFUTE.  I
THEREFORE THINK THAT A DE NOVO HEARING WAS PERMISSIBLE BEFORE THE COURT
OF CLAIMS. 

THE BOARD FOUND THAT RESPONDENT AT THE START SHOULD HAVE USED
TEMPORARY PROTECTION AGAINST FALL-INS AND THAT, HAD IT DONE SO,
PERMANENT TUNNEL PROTECTION WOULD NOT HAVE BEEN REQUIRED.  IN FEBRUARY
1948, BEFORE THE HEARING, A LETTER FROM THE ACTING DISTRICT ENGINEER TO
THE CHIEF OF ENGINEERS REPORTED A CONVERSATION THE CORPS' RESIDENT
ENGINEER FOR THIS PROJECT HAD HAD WITH AN EXPERT FROM NEW YORK'S BUREAU
OF MINES.  THE ONLY INFERENCE THAT COULD BE DRAWN FROM THAT REPORT WAS
THAT THE EXPERT BELIEVED THAT THE TUNNEL WAS IN SAFE CONDITION SHORTLY
AFTER IT WAS BORED AND THAT ITS LATER UNSAFE CONDITION WAS CAUSED BY
THE FACT THAT RESPONDENT "HAD NOT HAD THE FORESIGHT TO GUNITE THE
EXPOSED TUNNEL ROOF WITH CEMENT AS THE EXCAVATION PROGRESSED TO SEAL IT
AGAINST AIR SLACKING (SIC)  ...  ."  SOMEHOW, IN A MANNER NOT DISCLOSED
BY THE RECORD, THIS LETTER CAME INTO THE HANDS OF THE APPEAL BOARD AND
WAS CONSIDERED BY IT BEFORE A DECISION WAS RENDERED ON THE APPEAL.* 

*THE LETTER ALSO CONTAINED A STATEMENT TO THE EFFECT THAT ONLY $9,000
WAS INVOLVED IN THE APPEAL.  THIS FIGURE WAS USED IN THE BOARD'S
OPINION, BUT IT WAS NOWHERE MENTIONED IN THE HEARING OR RECORD BEFORE
THE BOARD.  IN FACT THE FIGURE WAS GROSSLY INACCURATE. 

AFTER THE DECISION RESPONDENT LEARNED OF THIS EXPERT'S ALLEGED
STATEMENTS AND CALLED HIM AS A WITNESS AT THE HEARING BEFORE THE COURT
OF CLAIMS, WHERE HE TESTIFIED ON THE BASIS OF HIS INSPECTION THAT
PERMANENT, NOT TEMPORARY, PROTECTION AGAINST FALL-INS WAS NECESSARY
FROM THE BEGINING.  AS RESPECTS THE GUNITING OF THE TUNNEL, ONE OF THE
GOVERNMENT'S OWN WITNESSES TESTIFIED AT THE HEARING BEFORE THE COURT OF
CLAIMS THAT IT WOULD HAVE SERVED NO USEFUL PURPOSE. 

THIS ISSUE - WHETHER ONLY TEMPORARY PROTECTION WAS NEEDED - WAS ONE
OF THE MAIN ISSUES IN THE CASE.  WHEN THE AGENCY MAKING THE DECISION
RELIES ON EVIDENCE THAT THE CLAIMANT HAS NO CHANCE TO REFUTE, THE
HEARING BECOMES INFECTED WITH A PROCEDURE THAT LACKS THAT FUNDAMENTAL
FAIRNESS THE CITIZEN EXPECTS FROM HIS GOVERNMENT.  CF. WILLNER V.
COMMITTEE ON CHARACTER & FITNESS, ANTE, P. 96; GONZALES V. UNITED
STATES, 348 U.S. 407; MORGAN V. UNITED STATES, 304 U.S. 1. 

THIS IRREGULARITY POINTS UP WHAT JUDGE MADDEN, WRITING FOR THE COURT
OF CLAIMS, SAID IN VOLENTINE & LITTLETON V. UNITED STATES, 136 CT. CL.
638, 641-642, 145 F. SUPP. 952, 954: 

"  ...  THE SO-CALLED 'ADMINISTRATIVE RECORD' IS IN MANY CASES A
MYTHICAL ENTITY.  THERE IS NO STATUTORY PROVISION FOR THESE
ADMINISTRATIVE DECISIONS OR FOR ANY PROCEDURE IN MAKING THEM.  THE HEAD
OF THE DEPARTMENT MAY MAKE THE DECISION ON APPEAL PERSONALLY OR MAY
ENTRUST ANYONE ELSE TO MAKE IT FOR HIM.  WHOEVER MAKES IT HAS NO POWER
TO PUT WITNESSES UNDER OATH OR TO COMPEL THE ATTENDANCE OF WITNESSES OR
THE PRODUCTION OF DOCUMENTS.  THERE MAY OR MAY NOT BE A TRANSCRIPT OF
THE ORAL TESTIMONY.  THE DECIDING OFFICER MAY, AND EVEN IN THE
DEPARTMENTS MAINTAINING THE MOST FORMAL PROCEDURES, DOES, SEARCH OUT
AND CONSULT OTHER DOCUMENTS WHICH, IT OCCURS TO HIM, WOULD BE
ENLIGHTENING, AND WITHOUT REGARD TO THE PRESENCE OR ABSENCE OF THE
CLAIMANT." 

WE ARE DEALING, IN OTHER WORDS, WITH SUBNORMAL ADMINISTRATIVE
PROCEDURES.  WHILE THE REGULATIONS GOVERNING HEARINGS BEFORE THE CORPS
OF ENGINEERS ARE PUBLISHED AND PROVIDE MANY PROTECTIVE FEATURES (33 CFR
SEC. 210.4), THEY LACK SOME OF THE SAFEGUARDS NORMALLY ACCORDED
CLAIMANTS IN ADMINISTRATIVE PROCEEDINGS.  THUS THEY ARE SPECIFICALLY
EXEMPT FROM SEC. 5 AND FROM SEC. 7 OF THE ADMINISTRATIVE PROCEDURE
ACT.  5 U.S.C. SECS. 1004, 1006.  THE EXEMPTION FROM SEC. 7 IS
HIGHLIGHTED IN THIS CASE.  THAT SECTION PROVIDES IN PART: 

"EVERY PARTY SHALL HAVE THE RIGHT TO PRESENT HIS CASE OR DEFENSE BY
ORAL OR DOCUMENTARY EVIDENCE, TO SUBMIT REBUTTAL EVIDENCE, AND TO
CONDUCT SUCH CROSS-EXAMINATION AS MAY BE REQUIRED FOR A FULL AND TRUE
DISCLOSURE OF THE FACTS." 

THAT PROVISION, IF APPLICABLE, WOULD HAVE MADE RELIANCE BY THE BOARD
ON THE EX PARTE HEARSAY STATEMENT OF THIS OUTSIDE EXPERT REVERSIBLE
ERROR.  LAX PROCEDURAL STANDARDS MAY AT TIMES DO NO HARM.  BUT WHERE,
AS HERE, OPINION EVIDENCE ON THE VITAL ISSUE IN THE CASE WAS OBTAINED
EX PARTE AND WHERE THAT EVIDENCE IS SHOWN TO HAVE BEEN FALSE, THE
CONCLUSION THAT THE DECISION WAS "CAPRICIOUS" OR "ARBITRARY" SEEMS TO
ME UNAVOIDABLE. 

A REMAND TO THE AGENCY TO DETERMINE WHETHER THE AGENCY'S DECISION IS
"CAPRICIOUS" OR "ARBITRARY" SEEMS OBVIOUSLY INAPPROPRIATE, SINCE IT IS
THE COURT, NOT THE AGENCY, THAT SHOULD DETERMINE THAT QUESTION.  SINCE
THESE ADMINISTRATIVE PROCEEDINGS ARE EXEMPT FROM THE PROTECTIVE
PROVISIONS OF SEC. 7 OF THE ADMINISTRATIVE PROCEDURE ACT, THERE IS NO
PROCEDURE WHEREBY A CONTRACTOR CAN DETERMINE WHETHER THE AGENCY'S
DECISION RESTED ON THE TESTIMONY OF "FACELESS" OR SECRET WITNESSES, AS
IN THIS CASE.  LIKE THE CASE WHERE A CONTRACTOR SEEKS REFORMATION OF
HIS CONTRACT (CF. BLAKE CONSTR.  CO. V. UNITED STATES, 111 U.S. APP.
D.C. 271, 296 F.2D 393), THE ONLY PLACE HE CAN GET THE HEARING CONGRESS
INTENDED HIM TO HAVE ON WHETHER THE DECISION WAS "CAPRICIOUS" OR
"ARBITRARY" IS IN THE COURTS. 
..END :














RIDEAU V. LOUISIANA 373 U.S. 723 


NO. 630.  ARGUED APRIL 29, 1963.  - DECIDED JUNE 3, 1963.  - 242 LA.
431, 137 SO. 2D 283, REVERSED. 


A FEW HOURS AFTER A MAN ROBBED A BANK IN LAKE CHARLES, LA., KIDNAPPED
THREE OF THE BANK'S EMPLOYEES AND KILLED ONE OF THEM, PETITIONER WAS
ARRESTED AND LODGED IN THE PARISH JAIL.  THE NEXT MORNING A MOTION
PICTURE FILM WITH A SOUND TRACK WAS MADE OF AN "INTERVIEW" IN THE JAIL
BETWEEN PETITIONER AND THE SHERIFF OF THE PARISH.  THIS "INTERVIEW"
LASTED APPROXIMATELY 20 MINUTES AND CONSISTED OF INTERROGATION BY THE
SHERIFF AND ADMISSIONS BY PETITIONER THAT HE HAD PERPETRATED THE BANK
ROBBERY, KIDNAPPING, AND MURDER.  LATER THE SAME DAY AND ON THE
SUCEEDING TWO DAYS, THE FILMED "INTERVIEW" WAS BROADCAST OVER THE LOCAL
TELEVISION STATION AND WAS SEEN AND HEARD BY MANY PEOPLE IN THE
PARISH.  SUBSEQUENTLY, PETITIONER WAS ARRAIGNED ON CHARGES OF ARMED
ROBBERY, KIDNAPPING, AND MURDER, AND TWO LAWYERS WERE APPOINTED TO
REPRESENT HIM.  THEY PROMPTLY FILED A MOTION FOR CHANGE OF VENUE; BUT
THIS WAS DENIED AND PETITIONER WAS CONVICTED IN THE TRIAL COURT OF THE
PARISH AND SENTENCED TO DEATH ON THE MURDER CHARGE.  HELD:  IT WAS A
DENIAL OF DUE PROCESS OF LAW TO REFUSE THE REQUEST FOR A CHANGE OF
VENUE AFTER THE PEOPLE OF THE PARISH HAD BEEN EXPOSED REPEATEDLY AND IN
DEPTH TO THE SPECTACLE OF THE PETITIONER PERSONALLY CONFESSING IN
DETAIL TO THE CRIMES WITH WHICH HE WAS LATER TO BE CHARGED.  PP. 723
727. 

RIDEAU V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON THE EVENING OF FEBRUARY 16, 1961, A MAN ROBBED A BANK IN LAKE
CHARLES, LOUISIANA, KIDNAPPED THREE OF THE BANK'S EMPLOYEES, AND KILLED
ONE OF THEM.  A FEW HOURS LATER THE PETITIONER, WILBERT RIDEAU, WAS
APPREHENDED BY THE POLICE AND LODGED IN THE CALCASIEU PARISH JAIL IN
LAKE CHARLES.  THE NEXT MORNING A MOVING PICTURE FILM WITH A SOUND
TRACK WAS MADE OF AN "INTERVIEW" IN THE JAIL BETWEEN RIDEAU AND THE
SHERIFF OF CALCASIEU PARISH.  THIS "INTERVIEW" LASTED APPROXIMATELY 20
MINUTES.  IT CONSISTED OF INTERROGATION BY THE SHERIFF AND ADMISSIONS
BY RIDEAU THAT HE HAD PERPETRATED THE BANK ROBBERY, KIDNAPPING, AND
MURDER.  LATER THE SAME DAY THE FILMED "INTERVIEW" WAS BROADCAST OVER A
TELEVISION STATION IN LAKE CHARLES, AND SOME 24,000 PEOPLE IN THE
COMMUNITY SAW AND HEARD IT ON TELEVISION.  THE SOUND FILM WAS AGAIN
SHOWN ON TELEVISION THE NEXT DAY TO AN ESTIMATED AUDIENCE OF 53,000
PEOPLE.  THE FOLLOWING DAY THE FILM WAS AGAIN BROADCAST BY THE SAME
TELEVISION STATION, AND THIS TIME APPROXIMATELY 29,000 PEOPLE SAW AND
HEARD THE "INTERVIEW" ON THEIR TELEVISION SETS.  CALCASIEU PARISH HAS A
POPULATION OF APPROXIMATELY 150,000 PEOPLE. 

SOME TWO WEEKS LATER, RIDEAU WAS ARRAIGNED ON CHARGES OF ARMED
ROBBERY, KIDNAPPING, AND MURDER, AND TWO LAWYERS WERE APPOINTED TO
REPRESENT HIM.  HIS LAWYERS PROMPTLY FILED A MOTION FOR A CHANGE OF
VENUE, ON THE GROUND THAT IT WOULD DEPRIVE RIDEAU OF RIGHTS GUARANTEED
TO HIM BY THE UNITED STATES CONSTITUTION TO FORCE HIM TO TRIAL IN
CALCASIEU PARISH AFTER THE THREE TELEVISION BROADCASTS THERE OF HIS
"INTERVIEW" WITH THE SHERIFF.  (FN1)  AFTER A HEARING, THE MOTION FOR
CHANGE OF VENUE WAS DENIED, AND RIDEAU WAS ACCORDINGLY CONVICTED AND
SENTENCED TO DEATH ON THE MURDER CHARGE IN THE CALCASIEU PARISH TRIAL
COURT. 

THREE MEMBERS OF THE JURY WHICH CONVICTED HIM HAD STATED ON VOIR DIRE
THAT THEY HAD SEEN AND HEARD RIDEAU'S TELEVISED "INTERVIEW" WITH THE
SHERIFF ON AT LEAST ONE OCCASION.  TWO MEMBERS OF THE JURY WERE DEPUTY
SHERIFFS OF CALCASIEU PARISH.  RIDEAU'S COUNSEL HAD REQUESTED THAT
THESE JURORS BE EXCUSED FOR CAUSE, HAVING EXHAUSTED ALL OF THEIR
PEREMPTORY CHALLENGES, BUT THESE CHALLENGES FOR CAUSE HAD BEEN DENIED
BY THE TRIAL JUDGE.  THE JUDGMENT OF CONVICTION WAS AFFIRMED BY THE
SUPREME COURT OF LOUISIANA, 242 LA. 431, 137 SO. 2D 283, AND THE CASE
IS HERE ON A WRIT OF CERTIORARI, 371 U.S. 919. 

THE RECORD IN THIS CASE CONTAINS AS AN EXHIBIT THE SOUND FILM WHICH
WAS BROADCAST.  WHAT THE PEOPLE OF CALCASIEU PARISH SAW ON THEIR
TELEVISION SETS WAS RIDEAU, IN JAIL, FLANKED BY THE SHERIFF AND TWO
STATE TROOPERS, ADMITTING IN DETAIL THE COMMISSION OF THE ROBBERY,
KIDNAPPING, AND MURDER, IN RESPONSE TO LEADING QUESTIONS BY THE
SHERIFF.  (FN2)  THE RECORD FAILS TO SHOW WHOSE IDEA IT WAS TO MAKE THE
SOUND FILM, AND BROADCAST IT OVER THE LOCAL TELEVISION STATION, BUT WE
KNOW FROM THE CONCEDED CIRCUMSTANCES THAT THE PLAN WAS CARRIED OUT WITH
THE ACTIVE COOPERATION AND PARTICIPATION OF THE LOCAL LAW ENFORCEMENT
OFFICERS.  AND CERTAINLY NO ONE HAS SUGGESTED THAT IT WAS RIDEAU'S
IDEA, OR EVEN THAT HE WAS AWARE OF WHAT WAS GOING ON WHEN THE SOUND
FILM WAS BEING MADE. 

IN THE VIEW WE TAKE OF THIS CASE, THE QUESTION OF WHO ORIGINALLY
INITIATED THE IDEA OF THE TELEVISED INTERVIEW IS, IN ANY EVENT, A
BASICALLY IRRELEVANT DETAIL.  FOR WE HOLD THAT IT WAS A DENIAL OF DUE
PROCESS OF LAW TO REFUSE THE REQUEST FOR A CHANGE OF VENUE, AFTER THE
PEOPLE OF CALCASIEU PARISH HAD BEEN EXPOSED REPEATEDLY AND IN DEPTH TO
THE SPECTACLE OF RIDEAU PERSONALLY CONFESSING IN DETAIL TO THE CRIMES
WITH WHICH HE WAS LATER TO BE CHARGED.  FOR ANYONE WHO HAS EVER WATCHED
TELEVISION THE CONCLUSION CANNOT BE AVOIDED THAT THIS SPECTACLE, TO THE
TENS OF THOUSANDS OF PEOPLE WHO SAW AND HEARD IT, IN A VERY REAL SENSE
WAS RIDEAU'S TRIAL - AT WHICH HE PLEADED GUILTY TO MURDER.  ANY
SUBSEQUENT COURT PROCEEDINGS IN A COMMUNITY SO PERVASIVELY EXPOSED TO
SUCH A SPECTACLE COULD BE BUT A HOLLOW FORMALITY. 

IN BROWN V. MISSISSIPPI, 297 U.S. 278, THIS COURT SET ASIDE MURDER
CONVICTIONS SECURED IN A STATE TRIAL WITH ALL THE FORMALITIES OF FAIR
PROCEDURES, BASED UPON "FREE AND VOLUNTARY CONFESSIONS" WHICH IN FACT
HAD BEEN PRECEDED BY GROSSLY BRUTAL KANGAROO COURT PROCEEDINGS WHILE
THE DEFENDANTS WERE HELD IN JAIL WITHOUT COUNSEL.  AS CHIEF JUSTICE
HUGHES WROTE IN THAT CASE, "THE STATE IS FREE TO REGULATE THE PROCEDURE
OF ITS COURTS IN ACCORDANCE WITH ITS OWN CONCEPTIONS OF POLICY  ...  .
BUT IT DOES NOT FOLLOW THAT IT MAY SUBSTITUTE TRIAL BY ORDEAL."  297
U.S., AT 285.  CF. WHITE V. TEXAS, 310 U.S. 530.  THAT WAS ALMOST A
GENERATION AGO, IN AN ERA BEFORE THE ONRUSH OF AN ELECTRONIC AGE. 

THE CASE NOW BEFORE US DOES NOT INVOLVE PHYSICAL BRUTALITY.  THE
KANGAROO COURT PROCEEDINGS IN THIS CASE INVOLVED A MORE SUBTLE BUT NO
LESS REAL DEPRIVATION OF DUE PROCESS OF LAW.  UNDER OUR CONSTITUTION'S
GUARANTEE OF DUE PROCESS, A PERSON ACCUSED OF COMMITTING A CRIME IS
VOUCHSAFED BASIC MINIMAL RIGHTS.  AMONG THESE ARE THE RIGHT TO COUNSEL,
(FN3) THE RIGHT TO PLEAD NOT GUILTY, AND THE RIGHT TO BE TRIED IN A
COURTROOM PRESIDED OVER BY A JUDGE.  YET IN THIS CASE THE PEOPLE OF
CALCASIEU PARISH SAW AND HEARD, NOT ONCE BUT THREE TIMES, A "TRIAL" OF
RIDEAU IN A JAIL, PRESIDED OVER BY A SHERIFF, WHERE THERE WAS NO LAWYER
TO ADVISE RIDEAU OF HIS RIGHT TO STAND MUTE. 

THE RECORD SHOWS THAT SUCH A THING AS THIS NEVER TOOK PLACE BEFORE IN
CALCASIEU PARISH, LOUISIANA.   (FN4)  WHETHER IT HAS OCCURRED
ELSEWHERE, WE DO NOT KNOW.  BUT WE DO NOT HESITATE TO HOLD, WITHOUT
PAUSING TO EXAMINE A PARTICULARIZED TRANSCRIPT OF THE VOIR DIRE
EXAMINATION OF THE MEMBERS OF THE JURY, THAT DUE PROCESS OF LAW IN THIS
CASE REQUIRED A TRIAL BEFORE A JURY DRAWN FROM A COMMUNITY OF PEOPLE
WHO HAD NOT SEEN AND HEARD RIDEAU'S TELEVISED "INTERVIEW."  "DUE
PROCESS OF LAW, PRESERVED FOR ALL BY OUR CONSTITUTION, COMMANDS THAT NO
SUCH PRACTICE AS THAT DISCLOSED BY THIS RECORD SHALL SEND ANY ACCUSED
TO HIS DEATH."  CHAMBERS V. FLORIDA, 309 U.S. 227, 241.  REVERSED. 

FN1  THE MOTION STATED:  "THAT TO REQUIRE THE DEFENDANT TO BE TRIED
ON THE CHARGES WHICH HAVE BEEN PREFERRED AGAINST HIM IN THE PARISH OF
CALCASIEU, WOULD BE A TRAVESTY OF JUSTICE AND WOULD BE A VIOLATION TO
THE DEFENDANT'S RIGHTS FOR A FAIR AND IMPARTIAL TRIAL, WHICH IS
GUARANTEED TO EVERY PERSON ACCUSED OF HAVING COMMITTED A CRIME BY THE
CONSTITUTION OF THE STATE OF LOUISIANA AND BY THE CONSTITUTION OF THE
UNITED STATES." 

FN2  THE SUPREME COURT OF LOUISIANA SUMMARIZED THE EVENT AS FOLLOWS:
"ON THE MORNING OF FEBRUARY 17, 1961, THE DEFENDANT WAS INTERVIEWED BY
THE SHERIFF, AND THE ENTIRE INTERVIEW WAS FILMED (WITH A SOUND TRACK)
AND SHOWN TO THE AUDIENCE OF TELEVISION STATION KPLC-TV ON THREE
OCCASIONS.  THE SHOWINGS OCCURRED PRIOR TO THE ARRAIGNMENT OF DEFENDANT
ON THE MURDER CHARGE.  IN THIS INTERVIEW THE ACCUSED ADMITTED HIS PART
IN THE CRIME FOR WHICH HE WAS LATER INDICTED."  242 LA., AT 447, 137
SO. 2D AT 289. 

FN3  GIDEON V. WAINWRIGHT, 372 U.S. 335. 

FN4  "Q.  MR. MAZILLY, YOU HAVE BEEN IN POLICE WORK ROUGHLY 21
YEARS? 

"A.  YES, SIR. 

"Q.  WERE YOU IN COURT YESTERDAY AT THE TIME A SOUND ON FILM PICTURE
WAS SHOWN TO THE COURT WHICH HAD BEEN SHOWN ON KPLC-TV ENCOMPASSING AN
INTERVIEW BETWEEN SHERIFF REID AND RIDEAU? 

"A.  I WAS. 

"Q.  IN ALL OF YOUR 21 YEARS, DO YOU KNOW OF ANY SIMILAR CASE IN THIS
PARISH OR SOUTHWEST LOUISIANA WHERE A MAN CHARGED WITH A CAPITAL CRIME
WAS ALLOWED - THAT PICTURES WERE MADE OF HIM AND THE GENERAL PUBLIC WAS
SHOWN THE PICTURES AND A SOUND TRACK IN WHICH HE CONFESSED TO A CAPITAL
CRIME? 

     *         *        *         *         * 

"A.  NO, SIR." 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

ON THE EVENING OF FEBRUARY 16, 1961, THE PETITIONER, WILBERT RIDEAU,
WAS ARRESTED AND CONFINED IN THE CALCASIEU PARISH JAIL IN LAKE CHARLES,
LOUISIANA.  THE ARREST AROSE OUT OF A BANK ROBBERY AND A SUBSEQUENT
KIDNAPPING AND HOMICIDE.  ON THE NIGHT OF HIS ARREST PETITIONER MADE
DETAILED ORAL AND WRITTEN CONFESSIONS TO THE CRIMES, AND ON THE
FOLLOWING MORNING A SOUND FILM WAS MADE OF AN INTERVIEW BETWEEN THE
SHERIFF AND PETITIONER IN WHICH HE AGAIN ADMITTED COMMISSION OF THE
CRIMES.  THE FILM WAS BROADCAST ON A LOCAL TELEVISION STATION ON
FEBRUARY 17, 18, AND 19, 1961. 

ON MARCH 3, 1961, PETITIONER WAS ARRAIGNED ON CHARGES OF ARMED
ROBBERY, KIDNAPPING AND MURDER.  AS REQUIRED UNDER THE LAW OF
LOUISIANA, HE PLEADED NOT GUILTY TO THE TWO CAPITAL CRIMES, BUT HE
ENTERED A PLEA OF GUILTY TO THE CHARGE OF ARMED ROBBERY.  COUNSEL WERE
APPOINTED IMMEDIATELY, AND THEY REQUESTED PERMISSION TO WITHDRAW THE
PLEA OF GUILTY TO ARMED ROBBERY, WHICH MOTION WAS GRANTED.  THEY THEN
FILED A MOTION TO QUASH, AND THE STATE WAS REQUIRED TO ELECT UNDER
WHICH COUNT IT WISHED TO PROCEED.  THE STATE ELECTED THE MURDER COUNT,
AND THE TRIAL WAS SET FOR APRIL 10, 1961. 

THE DEFENSE MOVED FOR A CHANGE OF VENUE, WHICH WAS DENIED AFTER
HEARING.  THEREUPON A JURY WAS EMPANELED AND PETITIONER WAS TRIED AND
CONVICTED OF MURDER.  THE LOUISIANA SUPREME COURT AFFIRMED AND THIS
COURT NOW REVERSES THAT JUDGMENT, HOLDING THAT THE DENIAL OF
PETITIONER'S MOTION FOR A CHANGE OF VENUE WAS A DEPRIVATION OF DUE
PROCESS OF LAW.  HAVING SEARCHED THE COURT'S OPINION AND THE RECORD, I
AM UNABLE TO FIND ANY DEPRIVATION OF DUE PROCESS UNDER THE FOURTEENTH
AMENDMENT AND I THEREFORE DISSENT. 

AT THE OUTSET, TWO MATTERS SHOULD BE CLEARLY ESTABLISHED.  FIRST, I
DO NOT BELIEVE IT WITHIN THE PROVINCE OF LAW ENFORCEMENT OFFICERS
ACTIVELY TO COOPERATE IN ACTIVITIES WHICH TEND TO MAKE MORE DIFFICULT
THE ACHIEVEMENT OF IMPARTIAL JUSTICE.  THEREFORE, IF THIS CASE AROSE IN
A FEDERAL COURT, OVER WHICH WE EXERCISE SUPERVISORY POWERS, I WOULD
VOTE TO REVERSE THE JUDGMENT BEFORE US.  CF. MARSHALL V. UNITED STATES,
360 U.S. 310 (1959).  IT GOES WITHOUT SAYING, HOWEVER, THAT THERE IS A
VERY SIGNIFICANT DIFFERENCE BETWEEN MATTERS WITHIN THE SCOPE OF OUR
SUPERVISORY POWER AND MATTERS WHICH REACH THE LEVEL OF CONSTITUTIONAL
DIMENSION.  SEE, E.G., STEIN V. NEW YORK, 346 U.S. 156, 187 (1953);
BROWN V. ALLEN, 344 U.S. 443, 476 (1953). 

SECOND, I AGREE FULLY WITH THE COURT THAT ONE IS DEPRIVED OF DUE
PROCESS OF LAW WHEN HE IS TRIED IN AN ENVIRONMENT SO PERMEATED WITH
HOSTILITY THAT JUDICIAL PROCEEDINGS CAN BE "BUT A HOLLOW FORMALITY." 
THIS PROPOSITION, AND MY POSITION WITH REGARD THERETO, ARE ESTABLISHED
IN IRVIN V. DOWD, 366 U.S. 717 (1961).  AT THIS POINT I MUST PART
COMPANY WITH THE COURT, HOWEVER, NOT SO MUCH BECAUSE IT DEVIATES FROM
THE PRINCIPLES ESTABLISHED IN IRVIN BUT BECAUSE IT APPLIES NO
PRINCIPLES AT ALL.  IT SIMPLY STOPS AT THIS POINT, WITHOUT ESTABLISHING
ANY SUBSTANTIAL NEXUS BETWEEN THE TELEVISED "INTERVIEW" AND
PETITIONER'S TRIAL, WHICH OCCURRED ALMOST TWO MONTHS LATER.  UNLESS THE
ADVERSE PUBLICITY IS SHOWN BY THE RECORD TO HAVE FATALLY INFECTED THE
TRIAL, THERE IS SIMPLY NO BASIS FOR THE COURT'S INFERENCE THAT THE
PUBLICITY, EPITOMIZED BY THE TELEVISED INTERVIEW, CALLED UP SOME
INFORMAL AND ILLICIT ANALOGY TO RES JUDICATA, MAKING PETITIONER'S TRIAL
A MEANINGLESS FORMALITY.  SEE BECK V. WASHINGTON, 369 U.S. 541 (1962). 

THAT THE COURT APPARENTLY DOES NOT REALIZE THE NECESSITY OF
ESTABLISHING THIS NEXUS IS ILLUSTRATED BY ITS RELIANCE ON BROWN V.
MISSISSIPPI, 297 U.S. 278 (1936).  THAT CASE AND ITS PROGENY* STAND FOR
THE PROPOSITION THAT ONE MAY NOT CONSTITUTIONALLY BE CONVICTED OF A
CRIME UPON EVIDENCE INCLUDING A CONFESSION INVOLUNTARILY MADE.  THERE
CAN BE NO MORE CLEAR NEXUS BETWEEN THE ACTION OF STATE OFFICIALS BEFORE
TRIAL AND THE TRIAL ITSELF THAN WHEN THE RESULTS OF THAT ACTION ARE
ADMITTED IN EVIDENCE AT THE TRIAL.  HERE, OF COURSE, NEITHER THE FILMED
INTERVIEW NOR ANY TRANSCRIPT OF IT WAS SHOWN OR READ TO THE JURY. 
WHILE THE ORAL AND WRITTEN CONFESSIONS MADE ON THE NIGHT OF THE ARREST
WERE ADMITTED IN EVIDENCE, THE ONLY ARGUMENT FOR THEIR EXCLUSION MADE
BY THE PETITIONER IS THAT THEY WERE OBTAINED AT AN INTERROGATION WHEN
HE HAD NOT BEEN ADVISED OF HIS RIGHT TO COUNSEL AND DID NOT HAVE
COUNSEL PRESENT.  THAT ARGUMENT IS CLEARLY ANSWERED BY OUR DECISIONS IN
CICENIA V. LAGAY, 357 U.S. 504 (1958), AND CROOKER V. CALIFORNIA, 357
U.S. 433 (1958). 

*SEE RITZ, TWENTY-FIVE YEARS OF STATE CRIMINAL CONFESSION CASES IN
THE U.S. SUPREME COURT, 19 WASH. & LEE L. REV. 35 (1962). 

THE FACT THAT THE ADVERSE PUBLICITY WAS NOT EVIDENCE IN THE CASE IS
NOT CONTROLLING, HOWEVER, FOR WE HAVE RECOGNIZED THAT SUCH MATTER MAY,
IN UNUSUAL CIRCUMSTANCES, FATALLY INFECT A TRIAL WHEN IT ENTERS THE
COURTROOM INDELIBLY IMBEDDED IN THE MINDS OF THE JURORS.  WE FOUND SUCH
A SITUATION IN IRVIN V. DOWN, SUPRA, WHERE THE CONTINUOUS WAVE OF
PUBLICITY CONCERNING THE OFFENSE AND THE PAST RECORD OF THE PETITIONER
SO PERMEATED THE AREA WHERE HE WAS TRIED THAT: 

"AN EXAMINATION OF THE 2,783-PAGE VOIR DIRE RECORD SHOWS THAT 370
PROSPECTIVE JURORS OR ALMOST 90% OF THOSE EXAMINED ON THE POINT  ...
ENTERTAINED SOME OPINION AS TO GUILT - RANGING IN INTENSITY FROM MERE
SUSPICION TO ABSOLUTE CERTAINTY.  A NUMBER ADMITTED THAT, IF THEY WERE
IN THE ACCUSED'S PLACE IN THE DOCK AND HE IN THEIRS ON THE JURY WITH
THEIR OPINIONS, THEY WOULD NOT WANT HIM ON A JURY."  366 U.S., AT 727. 
MORE IMPORTANT, OF THE 12 JURORS FINALLY PLACED IN THE JURY BOX EIGHT
THOUGHT PETITIONER IRVIN TO BE GUILTY.  IN VIEW OF THOSE CIRCUMSTANCES
WE UNANIMOUSLY REVERSED THE JUDGMENT IN THAT CASE, WITH THE CAVEAT
THAT: 

"IT IS NOT REQUIRED, HOWEVER, THAT THE JURORS BE TOTALLY IGNORANT OF
THE FACTS AND ISSUES INVOLVED.  IN THESE DAYS OF SWIFT, WIDESPREAD AND
DIVERSE METHODS OF COMMUNICATION, AN IMPORTANT CASE CAN BE EXPECTED TO
AROUSE THE INTEREST OF THE PUBLIC IN THE VICINITY, AND SCARCELY ANY OF
THOSE BEST QUALIFIED TO SERVE AS JURORS WILL NOT HAVE FORMED SOME
IMPRESSION OR OPINION AS TO THE MERITS OF THE CASE.  THIS IS
PARTICULARLY TRUE IN CRIMINAL CASES.  TO HOLD THAT THE MERE EXISTENCE
OF ANY PRECONCEIVED NOTION AS TO THE GUILT OR INNOCENCE OF AN ACCUSED,
WITHOUT MORE, IS SUFFICIENT TO REBUT THE PRESUMPTION OF A PROSPECTIVE
JUROR'S IMPARTIALITY WOULD BE TO ESTABLISH AN IMPOSSIBLE STANDARD." 
ID., AT 722-723. 

THUS, IN IRVIN, BECAUSE OF THE COMPLETE PERMEATION, IMBEDDING
OPINIONS OF GUILT IN THE MINDS OF 90% OF THE VENIREMEN AND TWO-THIRDS
OF THE ACTUAL JURY, WE HELD THAT PETITIONER HAD BEEN DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO AN IMPARTIAL TRIBUNAL.  COMPARE BECK V.
WASHINGTON, SUPRA.  WE NOW FACE THE QUESTION WHETHER THIS IS SUCH A
SITUATION AND, FOR THAT DETERMINATION, WE MUST EXAMINE THE PUBLICITY
INVOLVED, THE HEARING ON THE MOTION FOR CHANGE OF VENUE AND THE RECORD
OF THE VOIR DIRE EXAMINATION. 

INITIALLY, WE FACE AN OBSTACLE IN DETERMINING THE PERVASIVENESS OF
THE TELEVISED INTERVIEW, SINCE THE CIRCULATION OF A TELEVISION PROGRAM
IS LESS SUSCEPTIBLE OF DETERMINATION THAN THAT OF A NEWSPAPER.  THE
FIGURES QUOTED BY THE COURT AS REPRESENTING THE NUMBER OF PEOPLE WHO
"SAW AND HEARD" THE INTERVIEW WERE GIVEN BY THE PROGRAM DIRECTOR OF THE
TELEVISION STATION AND REPRESENTED THE TYPICAL NUMBER OF VIEWERS AT THE
TIMES WHEN THE INTERVIEW WAS BROADCAST, AS DETERMINED BY A RATING
SERVICE WHICH HAD CONDUCTED A SAMPLING SOME MONTHS PREVIOUS TO THE
BROADCASTS.  THE DIRECTOR TESTIFIED THAT THOSE FIGURES REPRESENTED "AN
APPROXIMATE NUMBER AND, AS I SAY, THERE IS NO WAY YOU CAN PROVE THIS
BECAUSE COMMUNICATIONS IS AN INTANGIBLE BUSINESS  ...  ."  OF COURSE,
ASSUMING ARGUENDO THE ACCURACY OF THE FIGURES GIVEN, THERE IS NO WAY OF
DETERMINING WHETHER THOSE FIGURES ARE MUTUALLY INCLUSIVE OR WHETHER
THEY REPRESENT DIFFERENT VIEWERS ON THE DIFFERENT OCCASIONS.  THE
RECORD DOES GIVE A MORE TANGIBLE INDICATION OF THE EFFECT OF THE
PUBLICITY, HOWEVER, IN THE HEARING ON THE MOTION FOR CHANGE OF VENUE. 
AT THAT HEARING FIVE WITNESSES TESTIFIED THAT, IN THEIR OPINIONS,
PETITIONER COULD NOT GET A FAIR TRIAL IN THE PARISH.  TWENTY-FOUR
WITNESSES TESTIFIED THAT, IN THEIR OPINIONS, PETITIONER COULD GET A
FAIR TRIAL AND A STIPULATION WAS ENTERED THAT FIVE MORE WITNESSES WOULD
TESTIFY THAT HE COULD GET A FAIR TRIAL IN THE PARISH. 

THE MOST CRUCIAL EVIDENCE RELATES TO THE COMPOSITION OF THE 12-MAN
JURY.  OF THE 12 MEMBERS OF THE PANEL ONLY THREE HAD SEEN THE TELEVISED
INTERVIEW WHICH HAD BEEN SHOWN ALMOST TWO MONTHS BEFORE THE TRIAL.  THE
PETITIONER DOES NOT ASSERT, AND THE RECORD DOES NOT SHOW, THAT THESE
THREE TESTIFIED TO HOLDING OPINIONS OF PETITIONER'S GUILT.  THEY DID
TESTIFY, HOWEVER, THAT THEY: 

"COULD LAY ASIDE ANY OPINION, GIVE THE DEFENDANT THE PRESUMPTION OF
INNOCENCE AS PROVIDED BY LAW, BASE THEIR DECISION SOLELY UPON THE
EVIDENCE, AND APPLY THE LAW AS GIVEN BY THE COURT.  AS THE JUDGE STATED
IN HIS PER CURIAM:  'THEY TESTIFIED THEY COULD DO SO NOTWITHSTANDING
ANYTHING THEY MAY HAVE HEARD, SEEN OR READ OF THE CASE.'"  242 LA. 431,
462, 137 SO. 2D 283, 295. 

FURTHER, TWO MEMBERS OF THE JURY HELD HONORARY DEPUTY SHERIFF'S
COMMISSIONS FROM THE SHERIFF'S DEPARTMENT.  NEITHER OF THESE MEN WAS IN
ANY WAY CONNECTED WITH THE DEPARTMENT AS A DEPUTY, NEITHER HAD EVER
MADE ANY ARRESTS AND NEITHER HAD EVER RECEIVED ANY PAY FROM THE
DEPARTMENT.  THEY BOTH TESTIFIED THAT THEY USED THE HONORARY
COMMISSIONS ONLY FOR THEIR CONVENIENCE.  THEY TESTIFIED THAT THESE
HONORARY COMMISSIONS WOULD NOT AFFECT THEIR ABILITY TO SERVE AS JURORS
IN ANY WAY, AND THE TRIAL JUDGE CONCLUDED THAT THIS TENUOUS
RELATIONSHIP WITH THE STATE DID NOT DESTROY THEIR QUALIFICATIONS TO
SERVE.  CF. FRAZIER V. UNITED STATES, 335 U.S. 497 (1948); UNITED
STATES V. WOOD, 299 U.S. 123 (1936). 

THE RIGHT TO A TRIAL BEFORE A FAIR AND IMPARTIAL TRIBUNAL "IS A BASIC
REQUIREMENT OF DUE PROCESS," IN RE MURCHISON, 349 U.S. 133, 136 (1955),
AND MUST BE SAFEGUARDED WITH VIGILANCE.  AS WE RECOGNIZED IN IRVIN,
HOWEVER, IT IS AN IMPOSSIBLE STANDARD TO REQUIRE THAT TRIBUNAL TO BE A
LABORATORY, COMPLETELY STERILIZED AND FREED FROM ANY EXTERNAL FACTORS. 
THE DETERMINATION OF IMPARTIALITY, IN WHICH DEMEANOR PLAYS SUCH AN
IMPORTANT PART, IS PARTICULARLY WITHIN THE PROVINCE OF THE TRIAL
JUDGE.   AND WHEN THE JURORS TESTIFY THAT THEY CAN DISCOUNT THE
INFLUENCE OF EXTERNAL FACTORS AND MEET THE STANDARD IMPOSED BY THE
FOURTEENTH AMENDMENT, THAT ASSURANCE IS NOT LIGHTLY TO BE DISCARDED. 
WHEN THE CIRCUMSTANCES ARE UNUSUALLY COMPELLING, AS IN IRVIN, THE
ASSURANCES MAY BE DISCARDED, BUT "IT IS NOT ASKING TOO MUCH THAT THE
BURDEN OF SHOWING ESSENTIAL UNFAIRNESS BE SUSTAINED BY HIM WHO CLAIMS
SUCH INJUSTICE AND SEEKS TO HAVE THE RESULT SET ASIDE  ...  ."  ADAMS
V. UNITED STATES EX REL. MCCANN, 317 U.S. 269, 281 (1942).  SINCE THE
PETITIONER CLEARLY HAS NOT MET THAT BURDEN, I WOULD AFFIRM THE JUDGMENT
BEFORE US.
..END :





NATIONAL LABOR RELATIONS BOARD V. GENERAL MOTORS CORP. 373 U.S. 734 


NO. 404.  ARGUED APRIL 18, 1963.  - DECIDED JUNE 3, 1963.  - 303 F.2D
428, REVERSED. 


AN "AGENCY SHOP" ARRANGMENT, WHICH LEAVES UNION MEMBERSHIP OPTIONAL
WITH THE EMPLOYEES BUT REQUIRES THAT, AS A CONDITION OF CONTINUED
EMPLOYMENT, NONUNION EMPLOYEES PAY TO THE UNION SUMS EQUAL TO THE
INITIATION FEES AND PERIODIC DUES PAID BY UNION MEMBERS, DOES NOT IN
ITSELF CONSTITUTE AN UNFAIR LABOR PRACTICE UNDER SEC. 8(A)(3) OF THE
NATIONAL LABOR RELATIONS ACT AND IS NOT PROHIBITED BY SEC. 7 OR SEC.
8.  IN A STATE WHICH DOES NOT PROHIBIT SUCH AN ARRANGEMENT, THEREFORE,
AN EMPLOYER COMMITS AN UNFAIR LABOR PRACTICE, WITHIN THE MEANING OF
SEC. 8(A)(5), WHEN IT UNCONDITIONALLY REFUSES TO BARGAIN WITH A
CERTIFIED UNION OF ITS EMPLOYEES OVER THE UNION'S PROPOSAL FOR THE
ADOPTION OF SUCH AN ARRANGEMENT.  PP.  734-745. 

NATIONAL LABOR RELATIONS BOARD V. GENERAL MOTORS CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS WHETHER AN EMPLOYER COMMITS AN UNFAIR LABOR
PRACTICE, NATIONAL LABOR RELATIONS ACT SEC. 8(A)(5), (FN1) WHEN IT
REFUSES TO BARGAIN WITH A CERTIFIED UNION OVER THE UNION'S PROPOSAL FOR
THE ADOPTION OF THE "AGENCY SHOP."  MORE NARROWLY, SINCE THE EMPLOYER
IS NOT OBLIGED TO BARGAIN OVER A PROPOSAL THAT HE COMMIT AN UNFAIR
LABOR PRACTICE, THE QUESTION IS WHETHER THE AGENCY SHOP IS AN UNFAIR
LABOR PRACTICE UNDER SEC. 8(A)(3) OF THE ACT OR ELSE IS EXEMPTED FROM
THE PROHIBITIONS OF THAT SECTION BY THE PROVISO THERETO.  (FN2)  WE
HAVE CONCLUDED THAT THIS TYPE OF ARRANGEMENT DOES NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE AND THAT IT IS NOT PROHIBITED BY SEC. 8. 

RESPONDENT'S EMPLOYEES ARE REPRESENTED BY THE UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, IN A
SINGLE, MULTIPLANT, COMPANY-WIDE UNIT.  THE 1958 AGREEMENT BETWEEN
UNION AND COMPANY PROVIDES FOR MAINTENANCE OF MEMBERSHIP AND THE UNION
SHOP.  (FN3)  THESE PROVISIONS WERE NOT OPERATIVE, HOWEVER, IN SUCH
STATES AS INDIANA WHERE STATE LAW PROHIBITED MAKING UNION MEMBERSHIP A
CONDITION OF EMPLOYMENT. 

IN JUNE 1959, THE INDIANA INTERMEDIATE APPELLATE COURT HELD THAT AN
AGENCY SHOP ARRANGEMENT WOULD NOT VIOLATE THE STATE RIGHT-TO-WORK LAW. 
MEADE ELEC.  CO. V. HAGBERG, 129 IND. APP.  631, 159 N.E.2D 408.  AS
DEFINED IN THAT OPINION, THE TERM "AGENCY SHOP" APPLIES TO AN
ARRANGEMENT UNDER WHICH ALL EMPLOYEES ARE REQUIRED AS A CONDITION OF
EMPLOYMENT TO PAY DUES TO THE UNION AND PAY THE UNION'S INITIATION FEE,
BUT THEY NEED NOT ACTUALLY BECOME UNION MEMBERS.  THE UNION THEREAFTER
SENT RESPONDENT A LETTER PROPOSING THE NEGOTIATION OF A CONTRACTUAL
PROVISION COVERING INDIANA PLANTS "GENERALLY SIMILAR TO THAT SET FORTH"
IN THE MEADE CASE.  CONTINUED EMPLOYMENT IN THE INDIANA PLANTS WOULD BE
CONDITIONED UPON THE PAYMENT OF SUMS EQUAL TO THE INITIATION FEE AND
REGULAR MONTHLY DUES PAID BY THE UNION MEMBERS.  THE INTENT OF THE
PROPOSAL, THE NATIONAL LABOR RELATIONS BOARD CONCLUDED, WAS NOT TO
REQUIRE MEMBERSHIP BUT TO MAKE MEMBERSHIP AVAILABLE AT THE EMPLOYEES'
OPTION AND ON NONDISCRIMINATORY TERMS.  EMPLOYEES CHOOSING NOT TO JOIN
WOULD MAKE THE REQUIRED PAYMENTS AND, IN ACCORDANCE WITH UNION CUSTOM,
WOULD SHARE IN UNION EXPENDITURES FOR STRIKE BENEFITS, EDUCATIONAL AND
RETIRED MEMBER BENEFITS, AND UNION PUBLICATIONS AND PROMOTIONAL
ACTIVITIES, BUT THEY WOULD NOT BE ENTITLED TO ATTEND UNION MEETINGS,
VOTE UPON RATIFICATION OF AGREEMENTS NEGOTIATED BY THE UNION, OR HAVE A
VOICE IN THE INTERNAL AFFAIRS OF THE UNION.  (FN4)  THE RESPONDENT MADE
NO COUNTERPROPOSAL, BUT REPLIED TO THE UNION'S LETTER THAT THE PROPOSED
AGREEMENT WOULD VIOLATE THE NATIONAL LABOR RELATIONS ACT AND THAT
RESPONDENT MUST THEREFORE "RESPECTFULLY DECLINE TO COMPLY WITH YOUR
REQUEST FOR A MEETING" TO BARGAIN OVER THE PROPOSAL. 

THE UNION THEREUPON FILED A COMPLAINT WITH THE NATIONAL LABOR
RELATIONS BOARD AGAINST RESPONDENT FOR ITS ALLEGED REFUSAL TO BARGAIN
IN GOOD FAITH.  IN THE BOARD'S VIEW OF THE RECORD, "THE UNION WAS NOT
SEEKING TO BARGAIN OVER A CLAUSE REQUIRING NONMEMBER EMPLOYEES TO PAY
SUMS EQUAL TO DUES AND FEES AS A CONDITION OF EMPLOYMENT WHILE AT THE
SAME TIME MAINTAINING A CLOSED-UNION POLICY WITH RESPECT TO APPLICANTS
FOR MEMBERSHIP," SINCE THE PROPOSAL CONTEMPLATED AN ARRANGEMENT IN
WHICH "ALL EMPLOYEES ARE GIVEN THE OPTION OF BECOMING, OR REFRAINING
FROM BECOMING, MEMBERS OF THE UNION."  PROCEEDING ON THIS BASIS AND
PUTTING ASIDE THE CONSEQUENCES OF A CLOSED-UNION POLICY UPON THE
LEGALITY OF THE AGENCY SHOP, THE BOARD ASSESSED THE UNION'S PROPOSAL AS
COMPORTING FULLY WITH THE CONGRESSIONAL DECLARATION OF POLICY IN FAVOR
OF UNION-SECURITY CONTRACTS AND THEREFORE A MANDATORY SUBJECT AS TO
WHICH THE ACT OBLIGED RESPONDENT TO BARGAIN IN GOOD FAITH.  AT THE SAME
TIME, IT STATED THAT IT HAD "NO DOUBT THAT AN AGENCY-SHOP AGREEMENT IS
A PERMISSIBLE FORM OF UNION-SECURITY WITHIN THE MEANING OF SECTIONS 7
AND 8(A)(3) OF THE ACT."  ACCORDINGLY, THE BOARD RULED THAT RESPONDENT
HAD COMMITTED AN UNFAIR LABOR PRACTICE BY REFUSING TO BARGAIN IN GOOD
FAITH WITH THE CERTIFIED BARGAINING REPRESENTATIVE OF ITS EMPLOYEES,
(FN5) AND IT ORDERED RESPONDENT TO BARGAIN WITH THE UNION OVER THE
PROPOSED ARRANGEMENT; NO BACK-PAY AWARD IS INVOLVED IN THIS CASE.  133
N.L.R.B. 451, 456, 457. 

RESPONDENT PETITIONED FOR REVIEW IN THE COURT OF APPEALS, AND THE
BOARD CROSS-PETITIONED FOR ENFORCEMENT.  THE COURT OF APPEALS SET THE
ORDER ASIDE ON THE GROUNDS THAT THE ACT TOLERATES ONLY "AN AGREEMENT
REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF
EMPLOYMENT" WHEN SUCH AGREEMENTS DO NOT VIOLATE STATE RIGHT-TO-WORK
LAWS, AND THAT THE ACT DOES NOT AUTHORIZE AGREEMENTS REQUIRING PAYMENT
OF MEMBERSHIP DUES TO A UNION, IN LIEU OF MEMBERSHIP, AS A CONDITION OF
EMPLOYMENT.  IT HELD THAT THE PROPOSED AGENCY SHOP AGREEMENT WOULD
VIOLATE SECS. 7, 8(A)(1), AND 8(A)(3) OF THE ACT AND THAT THE EMPLOYER
WAS THEREFORE NOT OBLIGED TO BARGAIN OVER IT.  303 F.2D 428 (C.A. 6TH
CIR.).  WE GRANTED CERTIORARI, 371 U.S. 908, AND NOW REVERSE THE
DECISION OF THE COURT OF APPEALS. 

OF THE PRESENT LAW.  LIKE SEC. 8(A)(3), SEC. 8(3) FORBADE EMPLOYERS TO
DISCRIMINATE AGAINST EMPLOYEES TO COMPEL THEM TO JOIN A UNION.  BECAUSE
IT WAS FEARED THAT SEC. 8(3) AND SEC. 7, IF NOTHING WERE ADDED TO
QUALIFY THEM, MIGHT BE HELD TO OUTLAW UNION-SECURITY ARRANGEMENTS SUCH
AS THE CLOSED SHOP, SEE 79 CONG. REC. 7570 (STATEMENT OF SENATOR
WAGNER), 7674 (STATEMENT OF SENATOR WALSH); H.R. REP. NO. 972, 74TH
CONG., 1ST SESS. 17; H.R. REP. NO. 1147, 74TH CONG., 1ST SESS. 19, THE
PROVISO TO SEC. 8(3) WAS ADDED EXPRESSLY DECLARING: 

"PROVIDED, THAT NOTHING IN THIS ACT  ...  OR IN ANY OTHER STATUTE OF
THE UNITED STATES, SHALL PRECLUDE AN EMPLOYER FROM MAKING AN AGREEMENT
WITH A LABOR ORGANIZATION  ...  TO REQUIRE AS A CONDITION OF EMPLOYMENT
MEMBERSHIP THEREIN, IF SUCH LABOR ORGANIZATION IS THE REPRESENTATIVE OF
THE EMPLOYEES AS PROVIDED IN SECTION 9(A)  ...  ." 

THE PREVAILING ADMINISTRATIVE AND JUDICIAL VIEW UNDER THE WAGNER ACT
WAS OR CAME TO BE THAT THE PROVISO TO SEC. 8(3) COVERED BOTH THE CLOSED
AND UNION SHOP, AS WELL AS LESS ONEROUS UNION-SECURITY ARRANGEMENTS, IF
THEY WERE OTHERWISE LEGAL.  THE NATIONAL LABOR RELATIONS BOARD
CONSTRUED THE PROVISO AS SHIELDING FROM AN UNFAIR LABOR PRACTICE CHARGE
LESS SEVERE FORMS OF UNION-SECURITY ARRANGEMENTS THAN THE CLOSED OR THE
UNION SHOP, (FN6) INCLUDING AN ARRANGEMENT IN PUBLIC SERVICE CO. OF
COLORADO 89 N.L.R.B.  418, (FN7) REQUIRING NONUNION MEMBERS TO PAY TO
THE UNION $2 A MONTH "FOR THE SUPPORT OF THE BARGAINING UNIT."  AND IN
ALGOMA PLYWOOD CO. V. WISCONSIN BOARD, 336 U.S. 301, 307, WHICH
INVOLVED A MAINTENANCE OF MEMBERSHIP AGREEMENT, THE COURT, IN
COMMENTING ON PETITIONER'S CONTENTION THAT THE PROVISO OF SEC. 8(3)
AFFIRMATIVELY PROTECTED ARRANGEMENTS WITHIN ITS SCOPE, CF. GARNER V.
TEAMSTERS UNION, 346 U.S. 485, SAID OF ITS PURPOSE:  "THE SHORT ANSWER
IS THAT SEC. 8(3) MERELY DISCLAIMS A NATIONAL POLICY HOSTILE TO THE
CLOSED SHOP OR OTHER FORMS OF UNION-SECURITY AGREEMENT." 

WHEN CONGRESS ENACTED THE TAFT-HARTLEY ACT, IT ADDED THE FOLLOWING TO
THE LANGUAGE OF THE ORIGINAL PROVISO TO SEC. 8(3): 

"ON OR AFTER THE THIRTIETH DAY FOLLOWING THE BEGINNING OF SUCH
EMPLOYMENT OR THE EFFECTIVE DATE OF SUCH AGREEMENT, WHICHEVER IS THE
LATER  ...  PROVIDED FURTHER, THAT NO EMPLOYER SHALL JUSTIFY ANY
DISCRIMINATION AGAINST AN EMPLOYEE FOR NONMEMBERSHIP IN A LABOR
ORGANIZATION (A) IF HE HAS REASONABLE GROUNDS FOR BELIEVING THAT SUCH
MEMBERSHIP WAS NOT AVAILABLE TO THE EMPLOYEE ON THE SAME TERMS AND
CONDITIONS GENERALLY APPLICABLE TO OTHER MEMBERS, OR (B) IF HE HAS
REASONABLE GROUNDS FOR BELIEVING THAT MEMBERSHIP WAS DENIED OR
TERMINATED FOR REASONS OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER
THE PERIODIC DUES AND THE INITIATION FEES UNIFORMLY REQUIRED AS A
CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP."  29 U.S.C. SEC.
158(A)(3). 

THESE ADDITIONS WERE INTENDED TO ACCOMPLISH TWIN PURPOSES.  ON THE
ONE HAND, THE MOST SERIOUS ABUSES OF COMPULSORY UNIONISM WERE
ELIMINATED BY ABOLISHING THE CLOSED SHOP.  ON THE OTHER HAND, CONGRESS
RECOGNIZED THAT IN THE ABSENCE OF A UNION-SECURITY PROVISION "MANY
EMPLOYEES SHARING THE BENEFITS OF WHAT UNIONS ARE ABLE TO ACCOMPLISH BY
COLLECTIVE BARGAINING WILL REFUSE TO PAY THEIR SHARE OF THE COST."  S.
REP. NO. 105, 80TH CONG., 1ST SESS., P. 6, 1 LEG.  HIST.  L.M.R.A.
412.  CONSEQUENTLY, UNDER THE NEW LAW "EMPLOYERS WOULD STILL BE
PERMITTED TO ENTER INTO AGREEMENTS REQUIRING ALL THE EMPLOYEES IN A
GIVEN BARGAINING UNIT TO BECOME MEMBERS 30 DAYS AFTER BEING HIRED," BUT
"EXPULSION FROM A UNION CANNOT BE A GROUND OF COMPULSORY DISCHARGE IF
THE WORKER IS NOT DELINQUENT IN PAYING HIS INITIATION FEE OR DUES."  S.
REP. NO. 105 P. 7, 1 LEG.  HIST.  L.M.R.A. 413.  THE AMENDMENTS WERE
INTENDED ONLY TO "REMEDY THE MOST SERIOUS ABUSES OF COMPULSORY UNION
MEMBERSHIP AND YET GIVE EMPLOYERS AND UNIONS WHO FEEL THAT SUCH
AGREEMENTS PROMOTED STABILITY BY ELIMINATING 'FREE RIDERS' THE RIGHT TO
CONTINUE SUCH ARRANGEMENTS."  IBID.  AS FAR AS THE FEDERAL LAW WAS
CONCERNED, ALL EMPLOYEES COULD BE REQUIRED TO PAY THEIR WAY.  THE BILL
"ABOLISHES THE CLOSED SHOP BUT PERMITS VOLUNTARY AGREEMENTS FOR
REQUIRING SUCH FORMS OF COMPULSORY MEMBERSHIP AS THE UNION SHOP OR
MAINTENANCE OF MEMBERSHIP  ...  ."  S. REP. NO. 105, P. 3, 1 LEG. 
HIST.  L.M.R.A. 409. 

WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT INDICATING THAT
CONGRESS INTENDED THE AMENDED PROVISO TO SEC. 8(A)(3) TO VALIDATE ONLY
THE UNION SHOP AND SIMULTANEOUSLY TO ABOLISH, IN ADDITION TO THE CLOSED
SHOP, ALL OTHER UNION-SECURITY ARRANGEMENTS PERMISSIBLE UNDER STATE
LAW.  THERE IS MUCH TO BE SAID FOR THE BOARD'S VIEW THAT, IF CONGRESS
DESIRED IN THE WAGNER ACT TO PERMIT A CLOSED OR UNION SHOP AND IN THE
TAFT-HARTLEY ACT THE UNION SHOP, THEN IT ALSO INTENDED TO PRESERVE THE
STATUS OF LESS VIGOROUS, LESS COMPULSORY CONTRACTS WHICH DEMANDED LESS
ADHERENCE TO THE UNION. 

RESPONDENT, HOWEVER, RELIES UPON THE EXPRESS WORDS OF THE PROVISO
WHICH ALLOW EMPLOYMENT TO BE CONDITIONED UPON "MEMBERSHIP":  SINCE THE
UNION'S PROPOSAL HERE DOES NOT REQUIRE ACTUAL MEMBERSHIP BUT DEMANDS
ONLY INITIATION FEES AND MONTHLY DUES, IT IS NOT SAVED BY THE PROVISO. 

THIS POSITION, OF COURSE, WOULD REJECT ADMINISTRATIVE DECISIONS
CONCERNING THE SCOPE OF SEC. 8(3) OF THE WAGNER ACT, E.G., PUBLIC
SERVICE CO. OF COLORADO, SUPRA, REAFFIRMED BY THE BOARD UNDER THE TAFT
HARTLEY AMENDMENTS, AMERICAN SEATING CO., 98 N.L.R.B. 800.  (FN8)
MOREOVER, THE 1947 AMENDMENTS NOT ONLY ABOLISHED THE CLOSED SHOP BUT
ALSO MADE SIGNIFICANT ALTERATIONS IN THE MEANING OF "MEMBERSHIP" FOR
THE PURPOSES OF UNION-SECURITY CONTRACTS.  UNDER THE SECOND PROVISO TO
SEC. 8(A)(3), THE BURDENS OF MEMBERSHIP UPON WHICH EMPLOYMENT MAY BE
CONDITIONED ARE EXPRESSLY LIMITED TO THE PAYMENT OF INITIATION FEES AND
MONTHLY DUES.  IT IS PERMISSIBLE TO CONDITION EMPLOYMENT UPON
MEMBERSHIP, BUT MEMBERSHIP, INSOFAR AS IT HAS SIGNIFICANCE TO
EMPLOYMENT RIGHTS, MAY IN TURN BE CONDITIONED ONLY UPON PAYMENT OF FEES
AND DUES.  "MEMBERSHIP" AS A CONDITION OF EMPLOYMENT IS WHITTLED DOWN
TO ITS FINANCIAL CORE.  THIS COURT HAS SAID AS MUCH BEFORE IN RADIO
OFFICERS' UNION V. LABOR BOARD, 347 U.S. 17, 41:

"THIS LEGISLATIVE HISTORY CLEARLY INDICATES THAT CONGRESS INTENDED TO
PREVENT UTILIZATION OF UNION SECURITY AGREEMENTS FOR ANY PURPOSE OTHER
THAN TO COMPEL PAYMENT OF UNION DUES AND FEES.  THUS CONGRESS
RECOGNIZED THE VALIDITY OF UNIONS' CONCERN ABOUT 'FREE RIDERS,' I.E.,
EMPLOYEES WHO RECEIVE THE BENEFITS OF UNION REPRESENTATION BUT ARE
UNWILLING TO CONTRIBUTE THEIR FAIR SHARE OF FINANCIAL SUPPORT TO SUCH
UNION, AND GAVE UNIONS THE POWER TO CONTRACT TO MEET THAT PROBLEM WHILE
WITHHOLDING FROM UNIONS THE POWER TO CAUSE THE DISCHARGE OF EMPLOYEES
FOR ANY OTHER REASON  ...  ." 

WE ARE THEREFORE CONFIDENT THAT THE PROPOSAL MADE BY THE UNION HERE
CONDITIONED EMPLOYMENT UPON THE PRACTICAL EQUIVALENT OF UNION
"MEMBERSHIP," AS CONGRESS USED THAT TERM IN THE PROVISO TO SEC.
8(A)(3).  (FN9)  THE PROPOSAL FOR REQUIRING THE PAYMENT OF DUES AND
FEES IMPOSES NO BURDENS NOT IMPOSED BY A PERMISSIBLE UNION SHOP
CONTRACT AND COMPELS THE PERFORMANCE OF ONLY THOSE DUTIES OF MEMBERSHIP
WHICH ARE ENFORCEABLE BY DISCHARGE UNDER A UNION SHOP ARRANGEMENT.  IF
AN EMPLOYEE IN A UNION SHOP UNIT REFUSES TO RESPECT ANY UNION-IMPOSED
OBLIGATIONS OTHER THAN THE DUTY TO PAY DUES AND FEES, AND MEMBERSHIP IN
THE UNION IS THEREFORE DENIED OR TERMINATED, THE CONDITION OF
"MEMBERSHIP" FOR SEC. 8(A)(3) PURPOSES IS NEVERTHELESS SATISFIED AND
THE EMPLOYEE MAY NOT BE DISCHARGED FOR NONMEMBERSHIP EVEN THOUGH HE IS
NOT A FORMAL MEMBER.  (FN10) OF COURSE, IF THE UNION CHOOSES TO EXTEND
MEMBERSHIP EVEN THOUGH THE EMPLOYEE WILL MEET ONLY THE MINIMUM
FINANCIAL BURDEN, AND REFUSES TO SUPPORT OR "JOIN" THE UNION IN ANY
OTHER AFFIRMATIVE WAY, THE EMPLOYEE MAY HAVE TO BECOME A "MEMBER" UNDER
A UNION SHOP CONTRACT, IN THE SENSE THAT THE UNION MAY BE ABLE TO PLACE
HIM ON ITS ROLLS.  (FN11)  THE AGENCY SHOP ARRANGEMENT PROPOSED HERE
REMOVES THAT CHOICE FROM THE UNION AND PLACES THE OPTION OF MEMBERSHIP
IN THE EMPLOYEE WHILE STILL REQUIRING THE SAME MONETARY SUPPORT AS DOES
THE UNION SHOP.  SUCH A DIFFERENCE BETWEEN THE UNION AND AGENCY SHOP
MAY BE OF GREAT IMPORTANCE IN SOME CONTEXTS, BUT FOR PRESENT PURPOSES
IT IS MORE FORMAL THAN REAL.  TO THE EXTENT THAT IT HAS ANY
SIGNIFICANCE AT ALL IT SERVES, RATHER THAN VIOLATES, THE DESIRE OF
CONGRESS TO REDUCE THE EVILS OF COMPULSORY UNIONISM WHILE ALLOWING
FINANCIAL SUPPORT FOR THE BARGAINING AGENT.  (FN12)    IN SHORT, THE
EMPLOYER CATEGORICALLY REFUSED TO BARGAIN WITH THE UNION OVER A
PROPOSAL FOR AN AGREEMENT WITHIN THE PROVISO TO SEC. 8(A)(3) AND AS
SUCH LAWFUL FOR THE PURPOSES OF THIS CASE.  BY THE SAME TOKEN, SEC. 7,
AND DERIVATIVELY SEC. 8(A)(1), CANNOT BE DEEMED TO FORBID THE EMPLOYER
TO ENTER SUCH AGREEMENTS, SINCE IT TOO IS EXPRESSLY LIMITED BY THE SEC.
8(A)(3) PROVISO.  WE HOLD THAT THE EMPLOYER WAS NOT EXCUSED FROM HIS
DUTY TO BARGAIN OVER THE PROPOSAL ON THE THEORY THAT HIS ACCEDING TO IT
WOULD NECESSARILY INVOLVE HIM IN AN UNFAIR LABOR PRACTICE.  WHETHER A
DIFFERENT RESULT OBTAINS IN STATES WHICH HAVE DECLARED SUCH
ARRANGEMENTS UNLAWFUL IS AN ISSUE STILL TO BE RESOLVED IN RETAIL CLERKS
ASSN. V. SCHERMERHORN, POST, P. 746, AND ONE WHICH IS OF NO RELEVANCE
HERE BECAUSE INDIANA LAW DOES NOT FORBID THE PRESENT CONTRACT
PROPOSAL.  IN THE CONTEXT OF THIS CASE, THEN, THE EMPLOYER CANNOT
JUSTIFY HIS REFUSAL TO BARGAIN.  HE VIOLATED SEC. 8(A)(5), AND THE
BOARD PROPERLY ORDERED HIM TO RETURN TO THE BARGAINING TABLE.  REVERSED
AND REMANDED. 

FN1  "SEC.  8.  (A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER: 

     *         *         *         *  * 

"(5)  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A)." 

FN2  "SEC.  8.  (A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER: 

     *         *         *   *         * 

"(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, THAT NOTHING IN THIS
ACT, OR IN ANY OTHER STATUTE OF THE UNITED STATES, SHALL PRECLUDE AN
EMPLOYER FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION  ...  TO
REQUIRE AS A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN ON OR AFTER THE
THIRTIETH DAY FOLLOWING THE BEGINNING OF SUCH EMPLOYMENT OR THE
EFFECTIVE DATE OF SUCH AGREEMENT, WHICHEVER IS THE LATER  ...  ." 

FN3  "UNION SECURITY AND CHECK-OFF OF UNION MEMBERSHIP DUES. 

"(4)  AN EMPLOYE WHO IS A MEMBER OF THE UNION AT THE TIME THIS
AGREEMENT BECOMES EFFECTIVE SHALL CONTINUE MEMBERSHIP IN THE UNION FOR
THE DURATION OF THIS AGREEMENT TO THE EXTENT OF PAYING AN INITIATION
FEE AND THE MEMBERSHIP DUES UNIFORMLY REQUIRED AS A CONDITION OF
ACQUIRING OR RETAINING MEMBERSHIP IN THE UNION. 

"(4A)  AN EMPLOYE WHO IS NOT A MEMBER OF THE UNION AT THE TIME THIS
AGREEMENT BECOMES EFFECTIVE SHALL BECOME A MEMBER OF THE UNION WITHIN
60 DAYS AFTER THE THIRTIETH (30TH) DAY FOLLOWING THE EFFECTIVE DATE OF
THIS AGREEMENT OR WITHIN 60 DAYS AFTER THE THIRTIETH (30TH) DAY
FOLLOWING EMPLOYMENT, WHICHEVER IS LATER, AND SHALL REMAIN A MEMBER OF
UNION, TO THE EXTENT OF PAYING AN INITIATION FEE AND THE MEMBERSHIP
DUES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP IN THE UNION, WHENEVER EMPLOYED UNDER, AND FOR THE DURATION
OF, THIS AGREEMENT. 

"(4B)  ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, AN EMPLOYE
SHALL NOT BE REQUIRED TO BECOME A MEMBER OF, OR CONTINUE MEMBERSHIP IN,
THE UNION, AS A CONDITION OF EMPLOYMENT, IF EMPLOYED IN ANY STATE WHICH
PROHIBITS, OR OTHERWISE MAKES UNLAWFUL, MEMBERSHIP IN A LABOR
ORGANIZATION AS A CONDITION OF EMPLOYMENT. 

"(4C)  THE UNION SHALL ACCEPT INTO MEMBERSHIP EACH EMPLOYE COVERED BY
THIS AGREEMENT WHO TENDERS TO THE UNION THE PERIODIC DUES AND
INITIATION FEES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR
RETAINING MEMBERSHIP IN THE UNION. 

   *         *         *         *         * 

"(4F)  'MEMBER OF THE UNION' AS USED IN PARAGRAPHS (4) AND (4A) ABOVE
MEANS ANY EMPLOYE WHO IS A MEMBER OF THE UNION AND IS NOT MORE THAN
SIXTY (60) DAYS IN ARREARS IN THE PAYMENT OF MEMBERSHIP DUES." 

FN4  THE UNION'S VICE-PRESIDENT SO EXPLAINED THE UNION PROPOSAL, AND
THE BOARD SEEMS TO HAVE ACCEPTED THIS VIEW.  133 N.L.R.B. 451, AT 456,
N. 12. 

FN5  THE BOARD ALSO HELD THAT RESPONDENT'S REFUSAL TO BARGAIN
INTERFERED WITH, RESTRAINED, AND COERCED ITS EMPLOYEES IN THE EXERCISE
OF THEIR NATIONAL LABOR RELATIONS ACT SEC. 7 RIGHTS, CONTRARY TO
NATIONAL LABOR RELATIONS ACT SEC. 8(A)(1). 

FN6  SEE, E.G., M.&J. TRACY, INC., 12 N.L.R.B. 916, 931-934; J.E.
PEARCE CONTRACTING & STEVEDORING CO., INC., 20 N.L.R.B. 1061, 1070
1073.  AND SEE THE MEMORANDUM PRINTED BY THE SENATE COMMITTEE,
COMMENTING UPON THE FINAL BILL, WHICH INDICATED THAT THE EXEMPTION OF
THE PROVISO WAS NOT LIMITED TO THE CLOSED OR UNION SHOP: 

"UNLESS THIS CHANGE IS MADE AS PROVIDED IN S. 1958, MOST STRIKES FOR
A CLOSED SHOP OR EVEN FOR A PREFERENTIAL SHOP WOULD BY THIS ACT BE
DECLARED TO BE FOR AN ILLEGAL PURPOSE  ...  . 

"AS THE LEGISLATIVE HISTORY OF N.I.R.A. SEC. 7(A) DEMONSTRATES,
NOTHING IN THAT SECTION WAS INTENDED TO DEPRIVE LABOR OF ITS EXISTING
RIGHTS IN MANY STATES TO CONTRACT OR STRIKE FOR A CLOSED OR
PREFERENTIAL SHOP  ...  .  NO REASON APPEARS FOR A CONTRARY VIEW
HERE."  1 LEG.  HIST. N.L.R.A. 1354-1355. 

FN7  THIS CASE WAS DECIDED IN 1950, BUT IT WAS GOVERNED BY THE WAGNER
ACT BECAUSE THE AGREEMENT WAS COVERED BY THE SAVING CLAUSE IN THE LABOR
MANAGEMENT RELATIONS ACT, SEC. 102, 89 N.L.R.B., AT 419-420. 

FN8  IN THAT CASE, THE BOARD STATED: 

"AS TO THE REQUIREMENT IN PARAGRAPH 4 THAT RELIGIOUS OBJECTORS WHO DO
NOT BECOME MEMBERS PAY TO THE INTERVENOR SUMS EQUIVALENT TO DUES, THE
BOARD HAS RULED THAT CLOSED-SHOP AGREEMENTS PROVIDING FOR 'SUPPORT
MONEY' PAYMENTS DID NOT VIOLATE THE PROVISO TO SECTION 8(3) OF THE
WAGNER ACT.  AS THE PRECISE LANGUAGE OF THE 8(3) PROVISO IN THE WAGNER
ACT WAS CONTINUED IN THE AMENDED ACT WITH CERTAIN ADDED QUALIFICATIONS
NOT PERTINENT HERE, AND BECAUSE THE LEGISLATIVE HISTORY OF THE AMENDED
ACT INDICATES THAT CONGRESS INTENDED NOT TO ILLEGALIZE THE PRACTICE OF
OBTAINING SUPPORT PAYMENTS FROM NONUNION MEMBERS WHO WOULD OTHERWISE BE
'FREE RIDERS,' WE FIND THAT THE PROVISION FOR SUPPORT PAYMENTS IN THE
INSTANT CONTRACT DOES NOT EXCEED THE UNION-SECURITY AGREEMENTS
AUTHORIZED BY THE ACT."  98 N.L.R.B., AT 802. 

FN9  REFERRING TO THE CANADIAN PRACTICE, SENATOR TAFT STATED THAT THE
RULE ADOPTED BY THE CONFERENCE COMMITTEE "IS SUBSTANTIALLY THE RULE NOW
IN EFFECT IN CANADA" WHICH IS THAT "THE EMPLOYEE MUST, NEVERTHELESS,
PAY DUES, EVEN THOUGH HE DOES NOT JOIN THE UNION" AND THAT IF HE PAYS
THE DUES WITHOUT JOINING HE HAS THE RIGHT TO BE EMPLOYED.  93 CONG.
REC. 4887, 2 LEG.  HIST.  L.R.M.A. 1422. 

FN10  UNION STARCH & REF. CO. V. LABOR BOARD, 186 F.2D 1008 (C.A. 7TH
CIR.).  SEE ALSO LABOR BOARD V. FOOD FAIR STORES, 307 F.2D 3 (C.A. 3D
CIR.); LABOR BOARD V. LOCAL 815, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, 290 F.2D 99 (C.A.2D CIR.); LABOR BOARD V. LOCAL 450,
INTERNATIONAL UNION OF OPERATING ENGINEERS, 281 F.2D 313, 316-317
(C.A.5TH CIR.); LABOR BOARD V. NATIONAL AUTOMOTIVE FIBRES, INC., 277
F.2D 779 (C.A. 9TH CIR.); LABOR BOARD V. DIE & TOOL MAKERS LODGE, 231
F.2D 298 (C.A. 7TH CIR.); LABOR BOARD V. MECHANICS EDUCATIONAL SOCIETY
OF AMERICA, 222 F.2D 429 (C.A. 6TH CIR); LABOR BOARD V. PAPE
BROADCASTING CO., 217 F.2D 197 (C.A. 5TH CIR); LABOR BOARD V.
PHILADELPHIA IRON WORKS, 211 F.2D 937 (C.A.  3D CIR); LABOR BOARD V.
ECLIPSE LUMBER CO., 199 F.2D 684 (C.A. 9TH CIR); UTLEY COMPANY, 108
N.L.R.B. 295, ENFORCED, 217 F.2D 885 (C.A. 6TH CIR.); WASHINGTON
WATERFRONT EMPLOYERS, 98 N.L.R.B. 284, ENFORCED, 211 F.2D 946 (C.A. 9TH
CIR.); ELECTRIC AUTO-LITE CO., 92 N.L.R.B.  1073, ENFORCED, 196 F.2D
500 (C.A. 6TH CIR.). 

FN11  CF. AMERICAN SEATING CO., 98 N.L.R.B. 800, 802, QUOTED SUPRA,
NOTE 8, APPROVING A PROVISION PROTECTING THOSE WHO OBJECT ON
CONSCIENTIOUS GROUNDS FROM BEING REQUIRED TO BECOME "MEMBERS" IN THE
CONVENTIONAL SENSE OF THAT TERM. 

FN12  ALSO WIDE OF THE MARK IS RESPONDENT'S FURTHER SUGGESTION THAT
CONGRESS CONTEMPLATED THE OBLIGATION TO PAY FEES AND DUES TO BE IMPOSED
ONLY IN CONNECTION WITH ACTUAL MEMBERSHIP IN THE UNION, SO AS TO INSURE
THE ENJOYMENT OF ALL UNION BENEFITS AND RIGHTS BY THOSE FROM WHOM MONEY
IS EXTRACTED.  CONGRESS, IT IS SAID, HAD NO DESIRE TO OPEN THE DOOR TO
COMPULSORY CONTRACTS WHICH EXTRACT MONEY BUT EXCLUDE THE CONTRIBUTING
EMPLOYEES FROM UNION MEMBERSHIP.  BUT, AS ANALYZED BY THE BOARD AND AS
THE CASE COMES TO US, THERE IS NO CLOSED-UNION ASPECT TO THE PRESENT
PROPOSAL BY THE UNION.  MEMBERSHIP REMAINS OPTIONAL WITH THE EMPLOYEE
AND THE SIGNIFICANCE OF DESIRED, BUT UNAVAILABLE, UNION MEMBERSHIP, OR
THE BENEFITS OF MEMBERSHIP, IN TERMS OF PERMISSIBLE SEC. 8(A)(3)
SECURITY CONTRACTS, WE LEAVE FOR ANOTHER CASE.  IN VIEW OF THE
LEGISLATIVE HISTORY OF THE TAFT-HARTLEY AMENDMENTS TO SEC. 8(A)(3) AND
OF THEIR PURPOSES, WE CANNOT SAY THAT OPTIONAL MEMBERSHIP, WHICH IS
NEITHER COMPULSORY NOR UNAVAILABLE MEMBERSHIP, VITIATES AN OTHERWISE
VALID UNION-SECURITY ARRANGEMENT. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1625, AFL-CIO V.
SCHERMERHORN 373 U.S. 746 


NO. 368.  ARGUED APRIL 18, 1963.  - DECIDED JUNE 3, 1963.  - REPORTED
BELOW:  141 SO. 2D 269. 


PETITIONER UNION AND AN EMPLOYER IN FLORIDA ENTERED INTO A COLLECTIVE
BARGAINING AGREEMENT CONTAINING AN "AGENCY SHOP" CLAUSE, WHICH LEFT
UNION MEMBERSHIP OPTIONAL WITH THE EMPLOYEES BUT REQUIRED THAT, AS A
CONDITION OF CONTINUED EMPLOYMENT, NONUNION EMPLOYEES PAY TO THE UNION
SUMS EQUAL TO THE INITIATION FEES AND PERIODIC DUES PAID BY UNION
MEMBERS.  NONUNION EMPLOYEES OF THE EMPLOYER SUED IN A FLORIDA STATE
COURT FOR A DECLARATORY JUDGMENT THAT THIS PROVISION WAS "NULL AND
VOID" AND UNENFORCEABLE UNDER THE FLORIDA RIGHT-TO-WORK LAW AND FOR AN
INJUNCTION AGAINST PETITIONER UNION AND THE EMPLOYER TO PREVENT THEM
FROM REQUIRING NONUNION EMPLOYEES TO CONTRIBUTE MONEY TO THE UNION. 
THE FLORIDA SUPREME COURT HELD THAT FLORIDA LAW FORBIDS SUCH AN "AGENCY
SHOP" ARRANGEMENT AND THAT FLORIDA COURTS COULD DEAL WITH THE "AGENCY
SHOP" CLAUSE INVOLVED HERE.  HELD: 

1.  THE "AGENCY SHOP" CLAUSE HERE INVOLVED IS WITHIN THE SCOPE OF
SEC. 14(B) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, AND
THEREFORE IS CONGRESSIONALLY MADE SUBJECT TO PROHIBITION BY FLORIDA
LAW, AND ITS LEGALITY IS GOVERNED BY THE DECISION OF THE FLORIDA
SUPREME COURT UNDER REVIEW HERE.  PP. 747, 750-754, 757. 

2.  THE ISSUE AS TO WHETHER FLORIDA COURTS HAVE JURISDICTION TO
ENFORCE THE STATE'S PROHIBITION AGAINST SUCH AN ARRANGEMENT OR WHETHER
THE NATIONAL LABOR RELATIONS BOARD HAS EXCLUSIVE JURISDICTION TO AFFORD
SUCH A REMEDY IS LEFT UNDECIDED, AND THE CASE IS RETAINED ON THE
CALENDAR FOR REARGUMENT ON THAT ISSUE.  PP. 747, 754-757. 

RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1625, AFL-CIO, ET AL. V.
SCHERMERHORN ET AL. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

LIKE LABOR BOARD V. GENERAL MOTORS CORP., ANTE, P. 734, DECIDED
TODAY, THIS CASE INVOLVES THE STATUS OF AN "AGENCY SHOP" ARRANGEMENT. 
WE HAVE CONCLUDED THAT THE CONTRACT INVOLVED HERE IS WITHIN THE SCOPE
OF SEC. 14(B) OF THE NATIONAL LABOR RELATIONS ACT AND THEREFORE IS
CONGRESSIONALLY MADE SUBJECT TO PROHIBITION BY FLORIDA LAW.  WE HAVE
NOT DETERMINED, HOWEVER, WHETHER THE FLORIDA COURTS, RATHER THAN SOLELY
THE NATIONAL LABOR RELATIONS BOARD, ARE TRIBUNALS WITH JURISDICTION TO
ENFORCE THE STATE'S PROHIBITION AGAINST SUCH ARRANGEMENTS. 
ACCORDINGLY, THE CASE IS RETAINED ON THE CALENDAR FOR REARGUMENT ON THE
UNDECIDED ISSUE. 

RETAIL CLERKS LOCAL 1625 IS THE CERTIFIED BARGAINING AGENT FOR THE
FOOD FAIR STORES SUPERMARKET CHAIN IN FIVE SOUTH FLORIDA COUNTIES.  IN
OCTOBER 1960 THE UNION AND THE EMPLOYER NEGOTIATED A COLLECTIVE
BARGAINING AGREEMENT EFFECTIVE UNTIL APRIL 1963.  (FN1)  THE CONTRACT
PROVIDED FOR VARIOUS TERMS AND CONDITIONS OF EMPLOYMENT, SUCH AS
PROTECTION AGAINST DISCHARGE EXCEPT FOR JUST CAUSE, PAID VACATIONS AND
HOLIDAYS, PREGNANCY LEAVES OF ABSENCE, LIFE AND HOSPITALIZATION
INSURANCE, PAID TIME OFF TO VOTE, TO SERVE ON JURIES, AND TO ATTEND
FUNERALS, AS WELL AS FOR WAGE-AND-HOUR TERMS; A GRIEVANCE AND
ARBITRATION CLAUSE WAS INSERTED FOR ENFORCEMENT OF THESE TERMS, UNDER
WHICH THE UNION AND EMPLOYER AGREE TO DIVIDE BETWEEN THEM THE COST OF
THE GRIEVANCE-ARBITRATION MACHINERY.   THE CONTRACT ALSO CONTAINED
ARTICLE 19, WHICH IS THE SUBJECT OF THE PRESENT LAWSUIT: 

"EMPLOYEES SHALL HAVE THE RIGHT TO VOLUNTARILY JOIN OR REFRAIN FROM
JOINING THE UNION.  EMPLOYEES WHO CHOOSE NOT TO JOIN THE UNION,
HOWEVER, AND WHO ARE COVERED BY THE TERMS OF THIS CONTRACT, SHALL BE
REQUIRED TO PAY AS A CONDITION OF EMPLOYMENT, AN INITIAL SERVICE FEE
AND MONTHLY SERVICE FEES TO THE UNION FOR THE PURPOSE OF AIDING THE
UNION IN DEFRAYING COSTS IN CONNECTION WITH ITS LEGAL OBLIGATIONS AND
RESPONSIBILITIES AS THE EXCLUSIVE BARGAINING AGENT OF THE EMPLOYEES IN
THE APPROPRIATE BARGAINING UNIT.  THE AFORESAID FEES SHALL BE PAYABLE
ON OR BEFORE THE FIRST DAY OF EACH MONTH, AND SUCH SUMS SHALL IN NO
CASE EXCEED THE INITIATION FEES AND THE MEMBERSHIP DUES PAID BY THOSE
WHO VOLUNTARILY CHOOSE TO JOIN THE UNION.  OTHER THAN THE PAYMENT OF
THESE SERVICE FEES, THOSE EMPLOYEES WHO DO NOT CHOOSE TO JOIN THE UNION
SHALL BE UNDER NO FURTHER FINANCIAL OBLIGATIONS OR REQUIREMENTS OF ANY
KIND TO THE UNION.  IT SHALL ALSO BE A CONDITION OF EMPLOYMENT THAT ALL
EMPLOYEES COVERED BY THIS AGREEMENT SHALL ON THE 30TH DAY FOLLOWING THE
BEGINNING OF SUCH EMPLOYMENT OR THE EFFECTIVE DATE OF THIS AGREEMENT,
WHICHEVER IS LATER, PAY ESTABLISHED INITIAL AND MONTHLY SERVICE FEES AS
SHOWN ABOVE." 

THE UNION AND THE EMPLOYER JOINTLY POSTED A NOTICE TO EMPLOYEES,
IMMEDIATELY AFTER EXECUTION OF THE COLLECTIVE AGREEMENT, EXPLAINING THE
NEW CONTRACT WITH PARTICULAR REFERENCE TO THE AGENCY SHOP CLAUSE: 

"THE AGENCY SHOP RECOGNIZES THAT UNION MEMBERSHIP IN THE STATE OF
FLORIDA IS A VOLUNTARY ACT OF THE EMPLOYEE.  ON THE OTHER HAND, UNDER
AN AGENCY SHOP AGREEMENT, THOSE EMPLOYEES WHO DO NOT BECOME MEMBERS OF
THE UNION NEVERTHELESS ARE REQUIRED TO PAY THE NECESSARY SERVICE FEES
TO THE LOCAL UNION IN ORDER TO AID THE UNION IN MEETING ITS AUTHORIZED
EXPENSES AS THE EXCLUSIVE BARGAINING AGENT. 

"THEREFORE, THE COMPANY AND THE UNION HAVE AGREED THAT EVEN THOUGH
YOU MAY NOT HAVE JOINED THE UNION, YOU ARE OBLIGATED, UNDER THE
PROVISIONS OF THE AGENCY SHOP, TO PAY AN INITIAL SERVICE FEE WHICH IS
THE EQUAL OF THE INITIATION FEE FOR UNION MEMBERS AND A MONTHLY SERVICE
FEE WHICH IS THE EQUAL OF THE MONTHLY DUES FOR THOSE WHO VOLUNTARILY
BECOME UNION MEMBERS.  NOTE:  AN EMPLOYEE WHO PAYS THE REGULAR INITIAL
FEE AND REGULAR MONTHLY SERVICE FEE BUT DOES NOT VOLUNTARILY JOIN THE
UNION, DOES NOT PARTICIPATE IN THE INTERNAL UNION AFFAIRS EVEN THOUGH
SAID EMPLOYEE RECEIVES EQUAL TREATMENT UNDER THE CONTRACT." 

THE PRESENT CLASS ACTION WAS THEN INSTITUTED BY RESPONDENTS, FOUR
NONUNION EMPLOYEES OF FOOD FAIR, WHO SOUGHT A DECLARATION THAT ARTICLE
19 WAS "NULL AND VOID AND UNENFORCEABLE," A TEMPORARY AND PERMANENT
INJUNCTION AGAINST PETITIONER AND FOOD FAIR TO PREVENT THEM FROM
REQUIRING RESPONDENTS OR MEMBERS OF THE CLASS ON BEHALF OF WHICH THEY
SUED (ALL FOOD FAIR EMPLOYEES COVERED BY THE COLLECTIVE AGREEMENT) TO
CONTRIBUTE MONEY TO THE UNION UNDER ARTICLE 19, AND AN ACCOUNTING.  THE
TRIAL COURT GRANTED A MOTION TO DISMISS ON THE GROUND THAT ARTICLE 19
DID NOT VIOLATE THE FLORIDA RIGHT-TO-WORK LAW, FLA. CONST. SEC. 12. 
(FN2)  47 L.R.R.M.  2300.  THE FLORIDA SUPREME COURT REVERSED, HOLDING
THAT STATE LAW FORBADE AND THAT ITS COURTS COULD DEAL WITH THE AGENCY
SHOP CLAUSE INVOLVED HERE, AND REMANDED THE CASE FOR FURTHER
PROCEEDINGS IN THE TRIAL COURT.  141 SO. 2D 269, CERT. GRANTED, 371
U.S. 909. 

                               I. 

THE CASE TO A GREAT EXTENT TURNS UPON THE SCOPE AND EFFECT OF SEC.
14(B) OF THE NATIONAL LABOR RELATIONS ACT, ADDED TO THE ACT IN 1947, 29
U.S.C. SEC. 164(B): 

"NOTHING IN THIS ACT 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." 

AS IS IMMEDIATELY APPARENT FROM ITS LANGUAGE, SEC. 14(B) WAS DESIGNED
TO PREVENT OTHER SECTIONS OF THE ACT FROM COMPLETELY EXTINGUISHING
STATE POWER OVER CERTAIN UNION-SECURITY ARRANGEMENTS.  AND IT WAS THE
PROVISO TO SEC. 8(A)(3), (FN3) EXPRESSLY PERMITTING AGREEMENTS
CONDITIONING EMPLOYMENT UPON MEMBERSHIP IN A LABOR UNION, WHICH
CONGRESS FEARED MIGHT HAVE THIS RESULT.  IT WAS DESIRED TO "MAKE
CERTAIN" THAT SEC. 8(A)(3) COULD NOT "BE SAID TO AUTHORIZE ARRANGEMENTS
OF THIS SORT IN STATES WHERE SUCH ARRANGEMENTS WERE CONTRARY TO THE
STATE POLICY."  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 60, 1
LEG.  HIST.  L.M.R.A. 564. 

THE CONNECTION BETWEEN THE SEC. 8(A)(3) PROVISO AND SEC. 14(B) IS
CLEAR.  WHETHER THEY ARE PERFECTLY COINCIDENT, WE NEED NOT NOW DECIDE,
BUT UNQUESTIONABLY THEY OVERLAP TO SOME EXTENT.  AT THE VERY LEAST, THE
AGREEMENTS REQUIRING "MEMBERSHIP" IN A LABOR UNION WHICH ARE EXPRESSLY
PERMITTED BY THE PROVISO ARE THE SAME "MEMBERSHIP" AGREEMENTS EXPRESSLY
PLACED WITHIN THE REACH OF STATE LAW BY SEC. 14(B).  IT FOLLOWS THAT
THE GENERAL MOTORS CASE RULES THIS ONE, FOR WE THERE HELD THAT THE
"AGENCY SHOP" ARRANGEMENT INVOLVED HERE - WHICH IMPOSES ON EMPLOYEES
THE ONLY MEMBERSHIP OBLIGATION ENFORCEABLE UNDER SEC. 8(A)(3) BY
DISCHARGE, NAMELY, THE OBLIGATION TO PAY INITIATION FEES AND REGULAR
DUES - IS THE "PRACTICAL EQUIVALENT" OF AN "AGREEMENT REQUIRING
MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT." 
WHATEVER MAY BE THE STATUS OF LESS STRINGENT UNION-SECURITY
ARRANGEMENTS, THE AGENCY SHOP IS WITHIN SEC. 14(B).  AT LEAST TO THAT
EXTENT DID CONGRESS INTEND SEC. 8(A)(3) AND SEC. 14(B) TO COINCIDE. 

PETITIONERS, BELATEDLY, (FN4) WOULD NOW DISTINGUISH THE CONTRACT
INVOLVED HERE FROM THE AGENCY SHOP CONTRACT DEALT WITH IN THE GENERAL
MOTORS CASE ON THE BASIS OF ALLEGEDLY DISTINCTIVE FEATURES WHICH ARE
SAID TO REQUIRE A DIFFERENT RESULT.  ARTICLE 19 PROVIDES FOR NONMEMBER
PAYMENTS TO THE UNION "FOR THE PURPOSE OF AIDING THE UNION IN DEFRAYING
COSTS IN CONNECTION WITH ITS LEGAL OBLIGATIONS AND RESPONSIBILITIES AS
THE EXCLUSIVE BARGAINING AGENT OF THE EMPLOYEES IN THE APPROPRIATE
BARGAINING UNIT," A PROVISION WHICH PETITIONERS SAY CONFINES THE USE OF
NONMEMBER PAYMENTS TO COLLECTIVE BARGAINING PURPOSES ALONE AND FORBIDS
THEIR USE BY THE UNION FOR INSTITUTIONAL PURPOSES UNRELATED TO ITS
EXCLUSIVE AGENCY FUNCTIONS, ALL IN SHARP CONTRAST, IT IS ARGUED, TO THE
GENERAL MOTORS SITUATION WHERE THE NONMEMBER CONTRIBUTIONS ARE
AVAILABLE TO THE UNION WITHOUT RESTRICTION. 

WE ARE WHOLLY UNPERSUADED.  THERE IS BEFORE US LITTLE MORE THAN A
COMPLAINT WITH ITS EXHIBITS.  THE AGENCY SHOP CLAUSE OF THE CONTRACT
IS, AT BEST, AMBIGUOUS ON ITS FACE AND IT SHOULD NOT, IN THE PRESENT
POSTURE OF THE CASE, BE CONSTRUED AGAINST RESPONDENT TO RAISE A
SUBSTANTIAL DIFFERENCE BETWEEN THIS AND THE GENERAL MOTORS CASE.  THERE
IS NO IRONCLAD RESTRICTION IMPOSED UPON THE USE OF NONMEMBER FEES, FOR
THE CLAUSE MERELY DESCRIBES THE PAYMENTS AS BEING FOR "THE PURPOSE OF
AIDING THE UNION" IN MEETING COLLECTIVE BARGAINING EXPENSES.  THE
ALLEGED RESTRICTION WOULD NOT BE BREACHED IF THE SERVICE FEE WAS USED
FOR BOTH COLLECTIVE BARGAINING AND OTHER EXPENSES, FOR THE UNION WOULD
BE "AIDED" IN MEETING ITS AGENCY OBLIGATIONS, NOT ONLY BY THE PART
SPENT FOR BARGAINING PURPOSES BUT ALSO BY THE PART SPENT FOR
INSTITUTIONAL ITEMS, SINCE AN EQUIVALENT AMOUNT OF OTHER UNION INCOME
WOULD THEREBY BE FREED TO PAY THE COSTS OF BARGAINING AGENCY
FUNCTIONS. 

BUT EVEN IF ALL COLLECTIONS FROM NONMEMBERS MUST BE DIRECTLY
COMMITTED TO PAYING BARGAINING COSTS, THIS FACT IS OF BOOKKEEPING
SIGNIFICANCE ONLY RATHER THAN A MATTER OF REAL SUBSTANCE.  IT MUST BE
REMEMBERED THAT THE SERVICE FEE IS ADMITTEDLY THE EXACT EQUAL OF
MEMBERSHIP INITIATION FEES AND MONTHLY DUES, SEE P. 749, SUPRA, (FN5)
AND THAT, AS THE UNION SAYS IN ITS BRIEF, (FN6) DUES COLLECTED FROM
MEMBERS MAY BE USED FOR A "VARIETY OF PURPOSES, IN ADDITION TO MEETING
THE UNION'S COSTS OF COLLECTIVE BARGAINING."  UNIONS "RATHER TYPICALLY"
USE THEIR MEMBERSHIP DUES "TO DO THOSE THINGS WHICH THE MEMBERS
AUTHORIZE THE UNION TO DO IN THEIR INTEREST AND ON THEIR BEHALF."  IF
THE UNION'S TOTAL BUDGET IS DIVIDED BETWEEN COLLECTIVE BARGAINING AND
INSTITUTIONAL EXPENSES AND IF NONMEMBER PAYMENTS, EQUAL TO THOSE OF A
MEMBER, GO ENTIRELY FOR COLLECTIVE BARGAINING COSTS, THE NONMEMBER WILL
PAY MORE OF THESE EXPENSES THAN HIS PRO RATA SHARE.  THE MEMBER WILL
PAY LESS AND TO THAT EXTENT A PORTION OF HIS FEES AND DUES IS AVAILABLE
TO PAY INSTITUTIONAL EXPENSES.  THE UNION'S BUDGET IS BALANCED.  BY
PAYING A LARGER SHARE OF COLLECTIVE BARGAINING COSTS THE NONMEMBER
SUBSIDIZES THE UNION'S INSTITUTIONAL ACTIVITIES.  IN OVER-ALL EFFECT,
ECONOMICALLY, AND WE THINK FOR THE PURPOSES OF SEC. 14(B), THE CONTRACT
HERE IS THE SAME AS THE GENERAL MOTORS AGENCY SHOP ARRANGEMENT. 
PETITIONERS' ARGUMENT, IF ACCEPTED, WOULD LEAD TO THE ANOMALOUS RESULT
OF PERMITTING FLORIDA TO INVALIDATE THE AGENCY SHOP BUT FORBIDDING IT
TO BAN THE PRESENT SERVICE FEE ARRANGEMENT UNDER WHICH COLLECTIVE
BARGAINING SERVICES COST THE NONMEMBER MORE THAN THE MEMBER. 

II. 

THE MORE DIFFICULT PHASES OF THIS CASE REMAIN.  IN PETITIONERS'
MOTION TO DISMISS FILED IN THE TRIAL COURT THE CONTRACT AT ISSUE WAS
SAID TO BE AN ARGUABLE UNFAIR LABOR PRACTICE AND THE SUBJECT MATTER OF
THE ACTION THEREFORE WITHIN THE EXCLUSIVE JURISDICTION OF THE NATIONAL
LABOR RELATIONS BOARD AND BEYOND THE POWER OF THE STATE COURTS TO
PROHIBIT.  THE MOTION WAS GRANTED, BUT ON ANOTHER GROUND, AND THE
PREEMPTION ARGUMENT WAS RENEWED BUT REJECTED IN THE FLORIDA SUPREME
COURT.  IT IS NOW PRESSED HERE AND HAS AT LEAST TWO RELATED BUT
DISTINCTIVE ASPECTS. 

IT IS FIRST URGED THAT WHETHER OR NOT A PARTICULAR UNION-SECURITY
CONTRACT IS WITHIN THE CATEGORY SUBJECTED TO STATE LAW BY SEC. 14(B) IS
A MATTER FOR THE BOARD AND NO BUSINESS OF THE STATE COURTS, AT LEAST IN
THE DOUBTFUL CASES WHERE THE COVERAGE OF SEC. 14(B) IS NOT A CLEARLY
SETTLED MATTER.  IF A CONTRACT IS NOT WITHIN SEC. 14(B), THE ARGUMENT
GOES, IT IS PROTECTED BY FEDERAL LAW.  IF WITHIN SEC. 14(B), THE
ARRANGEMENT IS AN UNFAIR PRACTICE, AT LEAST ARGUABLY SO.  THEREFORE,
WHERE THE STATUS OF A CONTRACT FOR THE PURPOSES OF SEC. 14(B) IS AT ALL
DOUBTFUL, THE BOARD IS ASSERTEDLY THE TRIBUNAL TO DEAL WITH THE
QUESTION.  ALTHOUGH WE WERE ASKED IN THE PETITION FOR CERTIORARI, AND
AGAIN IN PETITIONERS' BRIEF FOR ORAL ARGUMENT, TO RESOLVE THE SEC.
14(B) ISSUE IN THIS AGENCY SHOP CASE, THE CLEAR THRUST OF THIS PHASE OF
PETITIONERS' PREEMPTION ARGUMENT IS THAT NEITHER THE FLORIDA COURTS NOR
THIS COURT SHOULD PURPORT IN THE FIRST INSTANCE TO DETERMINE THE STATUS
OF AN AGENCY SHOP CONTRACT UNDER SEC. 14(B). 

THERE IS MUCH FORCE IN THE ARGUMENT THAT THE ASSESSMENT OF ANY
UNION-SECURITY ARRANGEMENT FOR THE PURPOSES OF SECS. 7, 8 AND 14(B),
WHEN THERE IS SIGNIFICANT DOUBT ABOUT THE MATTER, IS INITIALLY A TASK
FOR THE BOARD, SO THAT IT MAY FINALLY COME TO THIS COURT WITH THE
BENEFIT OF THE AFFECTED AGENCY'S VIEWS, AND IN ALL PROBABILITY THE
PREEMPTION ISSUE WAS ENTITLED TO DIFFERENT TREATMENT THAN IT RECEIVED
IN THE FLORIDA COURTS AT THE TIME THIS CASE WAS DECIDED.  BUT WHAT WAS
THEN AN ARGUABLE MATTER UNDER SEC. 14(B) IS NOT NECESSARILY ARGUABLE
NOW.  IN THE FIRST PLACE, AS WE HAVE HELD IN THE GENERAL MOTORS CASE,
AN AGENCY SHOP ARRANGEMENT IS THE EQUIVALENT OF A PERMITTED SEC.
8(A)(3) MEMBERSHIP AGREEMENT, A RESULT WHICH RULES THIS CASE SINCE, AS
WE HAVE INDICATED, SEC. 14(B) SUBJECTS TO STATE LAW THE MEMBERSHIP
AGREEMENTS, OR THEIR EQUIVALENT, WHICH ARE PERMITTED BY SEC. 8(A)(3). 
SECONDLY, THE BOARD'S BRIEF IN THE GENERAL MOTORS CASE CONTAINED THE
BOARD'S OWN VIEW OF THE STATUS OF THE AGENCY SHOP AGREEMENT UNDER SEC.
14(B):  THE PROVISION CONDITIONING EMPLOYMENT UPON THE PAYMENT OF SUMS
EQUAL TO INITIATION FEES AND MONTHLY DUES IS WITHIN THE SEC. 8(A)(3)
PROVISO, WITHIN THE SCOPE OF SEC. 14(B), AND HENCE SUBJECT TO
INVALIDATION BY STATE LAW.  WHAT WAS AN ARGUABLE QUESTION OF SEC.
8(A)(3) AND SEC. 14(B) COVERAGE HAS BEEN SETTLED, NOT ONLY IN THE LIGHT
OF, BUT CONSISTENTLY WITH, THE VIEWS OF THE BOARD.  WE SEE NO REASON TO
HOLD OUR HAND AT THIS JUNCTURE IN ORDER THAT THE BOARD MAY ARRIVE AGAIN
AT WHAT IS NOW A FOREGONE CONCLUSION.  CF. MARITIME BOARD V.
ISBRANDTSEN CO., 356 U.S. 481.    THE SECOND QUESTION IMPLICIT IN
PETITIONERS' PREEMPTION ARGUMENT IS WHETHER A STATE COURT MAY ENJOIN
THE OPERATION OF AN AGENCY SHOP ARRANGEMENT WHICH THE STATE HAS
DECLARED TO BE UNLAWFUL AS IT MAY DO UNDER SEC. 14(B).  WITHOUT THE
PROVISO TO SEC. 8(A)(3) AND A SIMILAR SAVING CLAUSE IN SEC. 7,
CONDITIONING EMPLOYMENT UPON UNION MEMBERSHIP WOULD BE AN OBVIOUS
UNFAIR LABOR PRACTICE, UNDER SECS. 8(A)(1), 8(A)(3), AND 8(B)(2), AS
CONGRESS RECOGNIZED IN ADDING THE PROVISO TO ORIGINAL SEC. 8(3).  WITH
THE PROVISO, HOWEVER, SUCH ARRANGEMENTS, IF THEY COMPLY WITH THE TERMS
OF THE PROVISO, ARE NOT UNFAIR PRACTICES.  SECTION 14(B), WITH OBVIOUS
REFERENCE TO SEC. 8(A)(3), DECLARES THAT "NOTHING IN THIS ACT" IS TO
AUTHORIZE "THE EXECUTION OR APPLICATION" OF MEMBERSHIP AGREEMENTS IN
STATES IN WHICH SUCH EXECUTION OR OPERATION IS PROHIBITED BY STATE
LAW.  IT IS ONE THING IF SEC. 14(B) AND A STATE LAW PROHIBITING THE
UNION OR THE AGENCY SHOP HAVE NO IMPACT ON SECS. 7 AND 8 AT ALL, AND
THE UNION AND AGENCY SHOPS ARE THEREFORE NOT UNFAIR PRACTICES UNDER
FEDERAL LAW EVEN IN THOSE STATES WHICH PROHIBIT THEM.  IT IS QUITE
ANOTHER MATTER, HOWEVER, IF SEC. 14(B) REMOVES THE PROTECTION OF THE
SEC. 8(A)(3) PROVISO AND THE UNION AND AGENCY SHOPS BECOME UNFAIR LABOR
PRACTICES IN STATES WHERE STATE LAW FORBIDS THEM, FOR THEN THE OBVIOUS
QUESTION IS PRECIPITATED AS TO WHETHER A STATE AS WELL AS THE BOARD MAY
ENJOIN SUCH UNION-SECURITY ARRANGEMENTS.  THE SCOPE AND VITALITY OF THE
COURT'S DECISION IN ALGOMA PLYWOOD CO. V. WISCONSIN BOARD, 336 U.S.
301, ARE INVOLVED, AS IS THE APPLICABILITY OF THE PREEMPTION DOCTRINE,
SUBSEQUENTLY DEVELOPED IN MANY CASES IN THIS COURT, SUCH AS GARNER V.
TEAMSTERS UNION, 346 U.S. 485; SAN DIEGO COUNCIL V. GARMON, 359 U.S.
236, TO SITUATIONS WHERE STATE LAW INVALIDATES UNION-SECURITY CONTRACTS
PLACED WITHIN THEIR REACH BY SEC. 14(B). 

WE HOLD THAT SEC. 14(B) OF THE ACT SUBJECTS THIS ARRANGEMENT TO STATE
SUBSTANTIVE LAW, AND THAT THE LEGALITY OF ARTICLE 19 IS GOVERNED BY THE
DECISION OF THE FLORIDA SUPREME COURT UNDER REVIEW HERE.  AS TO THE
UNRESOLVED ISSUE OF WHETHER THE FLORIDA COURTS HAVE JURISDICTION TO
AFFORD A REMEDY FOR VIOLATION OF THE STATE LAW, WE PREFER NOT TO
DISPOSE OF THE MATTER WITHOUT FULL ARGUMENT NEXT TERM.  MOREOVER, SINCE
WE HAVE NOT HAD THE BENEFIT OF THE VIEWS OF THE NATIONAL LABOR
RELATIONS BOARD, THE SOLICITOR GENERAL IS INVITED TO FILE A BRIEF
EXPRESSING THE VIEWS OF THE GOVERNMENT.  THE CASE IS RETAINED ON THE
CALENDAR AND SET FOR REARGUMENT DURING THE FORTHCOMING TERM ON THE
REMAINING ISSUE.  IT IS SO ORDERED. 

FN1  ARTICLE 45 PROVIDES: 

"THIS AGREEMENT SHALL CONTINUE IN EFFECT FROM APRIL 18, 1960 TO APRIL
15, 1963, AND CONTINUE IN EFFECT FROM YEAR TO YEAR THEREAFTER UNLESS
EITHER PARTY NOTIFIES THE OTHER PARTY SIXTY (60) DAYS PRIOR TO
EXPIRATION DATE, OR ANY ANNIVERSARY DATE THEREAFTER, OF THEIR DESIRE TO
TERMINATE OR OPEN THE AGREEMENT FOR THE PURPOSE OF AMENDMENTS AND/OR
CHANGES." 

FN2  "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; PROVIDED, THAT THIS CLAUSE SHALL NOT BE CONSTRUED TO DENY
OR ABRIDGE THE RIGHT OF EMPLOYEES BY AND THROUGH A LABOR ORGANIZATION
OR LABOR UNION TO BARGAIN COLLECTIVELY WITH THEIR EMPLOYER." 

FN3  "PROVIDED, THAT NOTHING IN THIS ACT, OR IN ANY OTHER STATUTE OF
THE UNITED STATES, SHALL PRECLUDE AN EMPLOYER FROM MAKING AN AGREEMENT
WITH A LABOR ORGANIZATION  ...  TO REQUIRE AS A CONDITION OF EMPLOYMENT
MEMBERSHIP THEREIN ON OR AFTER THE THIRTIETH DAY FOLLOWING THE
BEGINNING OF SUCH EMPLOYMENT OR THE EFFECTIVE DATE OF SUCH AGREEMENT,
WHICHEVER IS THE LATER  ...  ." 

FN4  THE PETITION FOR CERTIORARI POSED THE QUESTION FOR REVIEW AS
WHETHER SEC. 14(B) "AUTHORIZES THE STATES BOTH TO PROHIBIT AND TO
REGULATE AN 'AGENCY SHOP' CLAUSE."  THE PRESENT CLAUSE WAS LIKENED TO,
RATHER THAN DISTINGUISHED FROM, THE GENERAL MOTORS ARRANGEMENT.  IT WAS
ONLY UPON BRIEFING AND ARGUMENT THAT PETITIONERS SOUGHT TO PLACE THIS
ALLEGED "SERVICE FEE" CONTRACT IN A DIFFERENT CATEGORY FROM THE AGENCY
SHOP.  CF. NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350, 357, N.
2. 

FN5  THIS IS THE FACTUAL POSTURE IN WHICH THE CASE COMES TO US, ON
MOTION TO DISMISS.  THE EVIDENCE ON THIS POINT, IF ANY FAVORABLE TO
PETITIONERS WAS ADDUCED AT THE HEARING FOR PRELIMINARY INJUNCTION, WAS
NOT MADE PART OF THE RECORD. 

FN6  "RATHER TYPICALLY, UNIONS USE THEIR MEMBERS' DUES TO PROMOTE
LEGISLATION WHICH THEY REGARD AS DESIRABLE AND TO DEFEAT LEGISLATION
WHICH THEY REGARD AS UNDESIRABLE, TO PUBLISH NEWSPAPERS AND MAGAZINES,
TO PROMOTE FREE LABOR INSTITUTIONS IN OTHER NATIONS, TO FINANCE LOW
COST HOUSING, TO AID VICTIMS OF NATURAL DISASTER, TO SUPPORT CHARITIES,
TO FINANCE LITIGATION, TO PROVIDE SCHOLARSHIPS, AND TO DO THOSE THINGS
WHICH THE MEMBERS AUTHORIZE THE UNION TO DO IN THEIR INTEREST AND ON
THEIR BEHALF." 

WE CANNOT TAKE SERIOUSLY PETITIONERS' UNSUPPORTED SUGGESTION AT THE
ORAL ARGUMENT THAT WE MUST ASSUME THAT THE UNION SPENDS ALL OF ITS
INCOME ON COLLECTIVE BARGAINING EXPENSES.  THE RECORD IS ENTIRELY
SILENT ON THIS MATTER ONE WAY OR THE OTHER AND IT WOULD BE UNIQUE
INDEED IF THE UNION EXPENDED NO FUNDS FOR NONCOLLECTIVE BARGAINING
PURPOSES.  SEE BRIEF FOR N.L.R.B., LABOR BOARD V. GENERAL MOTORS CORP.,
NO. 404, P. 38.  AS INDICATED IN THE TEXT, PETITIONERS' BRIEF SEEMS TO
CONCEDE AS MUCH AND PETITIONERS LATER APPEARED TO MODIFY OR WITHDRAW
THE SUGGESTION AT THE ORAL ARGUMENT.  IN ANY EVENT, WE HAVE ONLY THE
PLEADINGS AND WE ARE BOUND TO GIVE THE RESPONDENTS THE BENEFIT OF EVERY
REASONABLE INFERENCE FROM WELL-PLEADED FACTS.  WHEELDIN V. WHEELER, 373
U.S. 647, 648; KENDALL V. UNITED STATES, 7 WALL.  113, 116; RHODE
ISLAND V. MASSACHUSETTS, 15 PET. 233, 272. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















JONES V. HEALING 373 U.S. 758 


NO. 985.  DECIDED JUNE 3, 1963.* - 210 F. SUPP. 125, AFFIRMED. 

*TOGETHER WITH NO. 1050, HEALING, CHAIRMAN OF HOPI TRIBAL COUNCIL OF
HOPI INDIAN TRIBE, ET AL. V. JONES, CHAIRMAN OF NAVAJO TRIBAL COUNCIL
OF NAVAJO INDIAN TRIBE, ET AL., ON APPEAL FROM THE SAME COURT. 


JONES, CHAIRMAN OF NAVAJO TRIBAL COUNCIL OF NAVAJO INDIAN TRIBE, V.
HEALING, CHAIRMAN OF HOPI COUNCIL OF HOPI INDIAN TRIBE, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
ARIZONA. 

PER CURIAM. 

THE MOTION TO SUBSTITUTE RAYMOND NAKAI IN THE PLACE OF PAUL JONES AS
THE PARTY APPELLANT IN NO. 985 AND AS A PARTY APPELLEE IN NO. 1050 IS
GRANTED.  THE MOTION TO SUBSTITUTE ABBOTT SEKAQUAPTEWA IN THE PLACE OF
DEWEY HEALING AS A PARTY APPELLEE IN NO. 985 AND AS A PARTY APPELLANT
IN NO. 1050 IS GRANTED.  THE MOTION TO AFFIRM IN NO. 985 IS GRANTED AND
THE JUDGMENT WHICH IS COMMON TO BOTH CASES IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED AND WOULD DECIDE THE CASES ONLY AFTER ARGUMENT. 
..END :





ARIZONA V. CALIFORNIA 376 U.S. 340 


NO. 8, ORIGINAL.  DECIDED JUNE 3, 1963.  - DECREE ENTERED MARCH 9,
1964. 


DECREE CARRYING INTO EFFECT THIS COURT'S OPINION OF JUNE 3, 1963, 373
U.S. 546. 

ARIZONA V. CALIFORNIA ET AL. 

IT IS ORDERED, ADJUDGED AND DECREED THAT: 

I. FOR PURPOSES OF THIS DECREE: 

(A)  "CONSUMPTIVE USE" MEANS DIVERSIONS FROM THE STREAM LESS SUCH
RETURN FLOW THERETO AS IS AVAILABLE FOR CONSUMPTIVE USE IN THE UNITED
STATES OR IN SATISFACTION OF THE MEXICAN TREATY OBLIGATION: 

(B)  "MAINSTREAM" MEANS THE MAINSTREAM OF THE COLORADO RIVER
DOWNSTREAM FROM LEE FERRY WITHIN THE UNITED STATES, INCLUDING THE
RESERVOIRS THEREON: 

(C)  CONSUMPTIVE USE FROM THE MAINSTREAM WITHIN A STATE SHALL INCLUDE
ALL CONSUMPTIVE USES OF WATER OF THE MAINSTREAM, INCLUDING WATER DRAWN
FROM THE MAINSTREAM BY UNDERGROUND PUMPING, AND INCLUDING, BUT NOT
LIMITED TO, CONSUMPTIVE USES MADE BY PERSONS, BY AGENCIES OF THAT
STATE, AND BY THE UNITED STATES FOR THE BENEFIT OF INDIAN RESERVATIONS
AND OTHER FEDERAL ESTABLISHMENTS WITH THE STATE: 

(D)  "REGULATORY STRUCTURES CONTROLLED BY THE UNITED STATES" REFERS
TO HOOVER DAM, DAVIS DAM, PARKER DAM, HEADGATE ROCK DAM, PALO VERDE
DAM, IMPERIAL DAM, LAGUNA DAM AND ALL OTHER DAMS AND WORKS ON THE
MAINSTREAM NOW OR HEREAFTER CONTROLLED OR OPERATED BY THE UNITED STATES
WHICH REGULATE THE FLOW OF WATER IN THE MAINSTREAM OR THE DIVERSION OF
WATER FROM THE MAINSTREAM: 

(E)  "WATER CONTROLLED BY THE UNITED STATES" REFERS TO THE WATER IN
LAKE MEAD, LAKE MOHAVE, LAKE HAVASU AND ALL OTHER WATER IN THE
MAINSTREAM BELOW LEE FERRY AND WITHIN THE UNITED STATES: 

(F)  "TRIBUTARIES" MEANS ALL STREAM SYSTEMS THE WATERS OF WHICH
NATURALLY DRAIN INTO THE MAINSTREAM OF THE COLORADO RIVER BELOW LEE
FERRY: 

(G)  "PERFECTED RIGHT" MEANS A WATER RIGHT ACQUIRED IN ACCORDANCE WITH
STATE LAW, WHICH RIGHT HAS BEEN EXERCISED BY THE ACTUAL DIVERSION OF A
SPECIFIC QUANTITY OF WATER THAT HAS BEEN APPLIED TO A DEFINED AREA OF
LAND OR TO DEFINITE MUNICIPAL OR INDUSTRIAL WORKS, AND IN ADDITION
SHALL INCLUDE WATER RIGHTS CREATED BY THE RESERVATION OF MAINSTREAM
WATER FOR THE USE OF FEDERAL ESTABLISHMENTS UNDER FEDERAL LAW WHETHER
OR NOT THE WATER HAS BEEN APPLIED TO BENEFICIAL USE: 

(H)  "PRESENT PERFECTED RIGHTS" MEANS PERFECTED RIGHTS, AS HERE
DEFINED, EXISTING AS OF JUNE 25, 1929, THE EFFECTIVE DATE OF THE
BOULDER CANYON PROJECT ACT: 

(I)  "DOMESTIC USE" SHALL INCLUDE THE USE OF WATER FOR HOUSEHOLD,
STOCK, MUNICIPAL, MINING, MILLING, INDUSTRIAL, AND OTHER LIKE PURPOSES,
BUT SHALL EXCLUDE THE GENERATION OF ELECTRICAL POWER: 

(J)  "ANNUAL" AND "YEAR," EXCEPT WHERE THE CONTEXT MAY OTHERWISE
REQUIRE, REFER TO CALENDAR YEARS:

(K)  CONSUMPTIVE USE OF WATER DIVERTED IN ONE STATE FOR CONSUMPTIVE
USE IN ANOTHER STATE SHALL BE TREATED AS IF DIVERTED IN THE STATE FOR
WHOSE BENEFIT IT IS CONSUMED. 

II.  THE UNITED STATES, ITS OFFICERS, ATTORNEYS, AGENTS AND EMPLOYEES
BE AND THEY ARE HEREBY SEVERALLY ENJOINED: 

(A)  FROM OPERATING REGULATORY STRUCTURES CONTROLLED BY THE UNITED
STATES AND FROM RELEASING WATER CONTROLLED BY THE UNITED STATES OTHER
THAN IN ACCORDANCE WITH THE FOLLOWING ORDER OF PRIORITY: 

(1)  FOR RIVER REGULATION, IMPROVEMENT OF NAVIGATION, AND FLOOD
CONTROL: 

(2)  FOR IRRIGATION AND DOMESTIC USES, INCLUDING THE SATISFACTION OF
PRESENT PERFECTED RIGHTS; AND: 

(3)  FOR POWER: 

PROVIDED, HOWEVER, THAT THE UNITED STATES MAY RELEASE WATER IN
SATISFACTION OF ITS OBLIGATIONS TO THE UNITED STATES OF MEXICO UNDER
THE TREATY DATED FEBRUARY 3, 1944, WITHOUT REGARD TO THE PRIORITIES
SPECIFIED IN THIS SUBDIVISION (A): 

(B)  FROM RELEASING WATER CONTROLLED BY THE UNITED STATES FOR
IRRIGATION AND DOMESTIC USE IN THE STATES OF ARIZONA, CALIFORNIA AND
NEVADA, EXCEPT AS FOLLOWS: 

(1)  IF SUFFICIENT MAINSTREAM WATER IS AVAILABLE FOR RELEASE, AS
DETERMINED BY THE SECRETARY OF THE INTERIOR, TO SATISFY 7,500,000 ACRE
FEET OF ANNUAL CONSUMPTIVE USE IN THE AFORESAID THREE STATES, THEN OF
SUCH 7,500,000 ACRE-FEET OF CONSUMPTIVE USE, THERE SHALL BE APPORTIONED
2,800,000 ACRE-FEET FOR USE IN ARIZONA, 4,400,000 ACRE-FEET FOR USE IN
CALIFORNIA, AND 300,000 ACRE-FEET FOR USE IN NEVADA: 

(2)  IF SUFFICIENT MAINSTREAM WATER IS AVAILABLE FOR RELEASE, AS
DETERMINED BY THE SECRETARY OF THE INTERIOR, TO SATISFY ANNUAL
CONSUMPTIVE USE IN THE AFORESAID STATES IN EXCESS OF 7,500,000 ACRE
FEET, SUCH EXCESS CONSUMPTIVE USE IS SURPLUS, AND 50% THEREOF SHALL BE
APPORTIONED FOR USE IN ARIZONA AND 50% FOR USE IN CALIFORNIA; PROVIDED,
HOWEVER, THAT IF THE UNITED STATES SO CONTRACTS WITH NEVADA, THEN 46%
OF SUCH SURPLUS SHALL BE APPORTIONED FOR USE IN ARIZONA AND 4% FOR USE
IN NEVADA: 

(3)  IF INSUFFICIENT MAINSTREAM WATER IS AVAILABLE FOR RELEASE, AS
DETERMINED BY THE SECRETARY OF THE INTERIOR, TO SATISFY ANNUAL
CONSUMPTIVE USE OF 7,500,000 ACRE-FEET IN THE AFORESAID THREE STATES,
THEN THE SECRETARY OF THE INTERIOR, AFTER PROVIDING FOR SATISFACTION OF
PRESENT PERFECTED RIGHTS IN THE ORDER OF THEIR PRIORITY DATES WITHOUT
REGARD TO STATE LINES AND AFTER CONSULTATION WITH THE PARTIES TO MAJOR
DELIVERY CONTRACTS AND SUCH REPRESENTATIVES AS THE RESPECTIVE STATES
MAY DESIGNATE, MAY APPORTION THE AMOUNT REMAINING AVAILABLE FOR
CONSUMPTIVE USE IN SUCH MANNER AS IS CONSISTENT WITH THE BOULDER CANYON
PROJECT ACT AS INTERPRETED BY THE OPINION OF THIS COURT HEREIN, AND
WITH OTHER APPLICABLE FEDERAL STATUTES, BUT IN NO EVENT SHALL MORE THAN
4,400,000 ACRE-FEET BE APPORTIONED FOR USE IN CALIFORNIA INCLUDING ALL
PRESENT PERFECTED RIGHTS: 

(4)  ANY MAINSTREAM WATER CONSUMPTIVELY USED WITHIN A STATE SHALL BE
CHARGED TO ITS APPORTIONMENT, REGARDLESS OF THE PURPOSE FOR WHICH IT
WAS RELEASED: 

(5)  NOTWITHSTANDING THE PROVISIONS OF PARAGRAPHS (1) THROUGH (4) OF
THIS SUBDIVISION (B), MAINSTREAM WATER SHALL BE RELEASED OR DELIVERED
TO WATER USERS (INCLUDING BUT NOT LIMITED TO PUBLIC AND MUNICIPAL
CORPORATIONS AND OTHER PUBLIC AGENCIES) IN ARIZONA, CALIFORNIA, AND
NEVADA ONLY PURSUANT TO VALID CONTRACTS THEREFOR MADE WITH SUCH USERS
BY THE SECRETARY OF THE INTERIOR, PURSUANT TO SECTION 5 OF THE BOULDER
CANYON PROJECT ACT OR ANY OTHER APPLICABLE FEDERAL STATUTE: 

(6)  IF, IN ANY ONE YEAR, WATER APPORTIONED FOR CONSUMPTIVE USE IN A
STATE WILL NOT BE CONSUMED IN THAT STATE, WHETHER FOR THE REASON THAT
DELIVERY CONTRACTS FOR THE FULL AMOUNT OF THE STATE'S APPORTIONMENT ARE
NOT IN EFFECT OR THAT USERS CANNOT APPLY ALL OF SUCH WATER TO
BENEFICIAL USES, OR FOR ANY OTHER REASON, NOTHING IN THIS DECREE SHALL
BE CONSTRUED AS PROHIBITING THE SECRETARY OF THE INTERIOR FROM
RELEASING SUCH APPORTIONED BUT UNUSED WATER DURING SUCH YEAR FOR
CONSUMPTIVE USE IN THE OTHER STATES.  NO RIGHTS TO THE RECURRENT USE OF
SUCH WATER SHALL ACCRUE BY REASON OF THE USE THEREOF: 

(C)  FROM APPLYING THE PROVISIONS OF ARTICLE 7(D) OF THE ARIZONA
WATER DELIVERY CONTRACT DATED FEBRUARY 9, 1944, AND THE PROVISIONS OF
ARTICLE 5(A) OF THE NEVADA WATER DELIVERY CONTRACT DATED MARCH 30,
1942, AS AMENDED BY THE CONTRACT DATED JANUARY 3, 1944, TO REDUCE THE
APPORTIONMENT OR DELIVERY OF MAINSTREAM WATER TO USERS WITHIN THE
STATES OF ARIZONA AND NEVADA BY REASON OF ANY USES IN SUCH STATES FROM
THE TRIBUTARIES FLOWING THEREIN: 

(D)  FROM RELEASING WATER CONTROLLED BY THE UNITED STATES FOR USE IN
THE STATES OF ARIZONA, CALIFORNIA, AND NEVADA FOR THE BENEFIT OF ANY
FEDERAL ESTABLISHMENT NAMED IN THIS SUBDIVISION (D) EXCEPT IN
ACCORDANCE WITH THE ALLOCATIONS MADE HEREIN; PROVIDED, HOWEVER, THAT
SUCH RELEASE MAY BE MADE NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH
(5) OF SUBDIVISION (B) OF THIS ARTICLE; AND PROVIDED FURTHER THAT
NOTHING HEREIN SHALL PROHIBIT THE UNITED STATES FROM MAKING FUTURE
ADDITIONAL RESERVATIONS OF MAINSTREAM WATER FOR USE IN ANY OF SUCH
STATES AS MAY BE AUTHORIZED BY LAW AND SUBJECT TO PRESENT PERFECTED
RIGHTS AND RIGHTS UNDER CONTRACTS THERETOFORE MADE WITH WATER USERS IN
SUCH STATE UNDER SECTION 5 OF THE BOULDER CANYON PROJECT ACT OR ANY
OTHER APPLICABLE FEDERAL STATUTE: 

(1)  THE CHEMEHUEVI INDIAN RESERVATION IN ANNUAL QUANTITIES NOT TO
EXCEED (I) 11,340 ACRE-FEET OF DIVERSIONS FROM THE MAINSTREAM OR (II)
THE QUANTITY OF MAINSTREAM WATER NECESSARY TO SUPPLY THE CONSUMPTIVE
USE REQUIRED FOR IRRIGATION OF 1,900 ACRES AND FOR THE SATISFACTION OF
RELATED USES, WHICHEVER OF (I) OR (II) IS LESS, WITH A PRIORITY DATE OF
FEBRUARY 2, 1907: 

(2)  THE COCOPAH INDIAN RESERVATION IN ANNUAL QUANTITIES NOT TO
EXCEED (I) 2,744 ACRE-FEET OF DIVERSIONS FROM THE MAINSTREAM OR (II)
THE QUANTITY OF MAINSTREAM WATER NECESSARY TO SUPPLY THE CONSUMPTIVE
USE REQUIRED FOR IRRIGATION OF 431 ACRES AND FOR THE SATISFACTION OF
RELATED USES, WHICHEVER OF (I) OR (II) IS LESS, WITH A PRIORITY DATE OF
SEPTEMBER 27, 1917: 

(3)  THE YUMA INDIAN RESERVATION IN ANNUAL QUANTITIES NOT TO EXCEED
(I) 51,616 ACRE-FEET OF DIVERSIONS FROM THE MAINSTREAM OR (II) THE
QUANTITY OF MAINSTREAM WATER NECESSARY TO SUPPLY THE CONSUMPTIVE USE
REQUIRED FOR IRRIGATION OF 7,743 ACRES AND FOR THE SATISFACTION OF
RELATED USES, WHICHEVER OF (I) OR (II) IS LESS, WITH A PRIORITY DATE OF
JANUARY 9, 1884: 

(4)  THE COLORADO RIVER INDIAN RESERVATION IN ANNUAL QUANTITIES NOT
TO EXCEED (I) 717,148 ACRE-FEET OF DIVERSIONS FROM THE MAINSTREAM OR
(II) THE QUANTITY OF MAINSTREAM WATER NECESSARY TO SUPPLY THE
CONSUMPTIVE USE REQUIRED FOR IRRIGATION OF 107,588 ACRES AND FOR THE
SATISFACTION OF RELATED USES, WHICHEVER OF (I) OR (II) IS LESS, WITH
PRIORITY DATES OF MARCH 3, 1865, FOR LANDS RESERVED BY THE ACT OF MARCH
3, 1865 (13 STAT. 541, 559); NOVEMBER 22, 1873, FOR LANDS RESERVED BY
THE EXECUTIVE ORDER OF SAID DATE; NOVEMBER 16, 1874, FOR LANDS RESERVED
BY THE EXECUTIVE ORDER OF SAID DATE, EXCEPT AS LATER MODIFIED; MAY 15,
1876, FOR LANDS RESERVED BY THE EXECUTIVE ORDER OF SAID DATE; NOVEMBER
22, 1915, FOR LANDS RESERVED BY THE EXECUTIVE ORDER OF SAID DATE: 

(5)  THE FORT MOHAVE INDIAN RESERVATION IN ANNUAL QUANTITIES NOT TO
EXCEED (I) 122,648 ACRE-FEET OF DIVERSIONS FROM THE MAINSTREAM OR (II)
THE QUANTITY OF MAINSTREAM WATER NECESSARY TO SUPPLY THE CONSUMPTIVE
USE REQUIRED FOR IRRIGATION OF 18,974 ACRES AND FOR THE SATISFACTION OF
RELATED USES, WHICHEVER OF (I) OR (II) IS LESS, AND, SUBJECT TO THE
NEXT SUCCEEDING PROVISO, WITH PRIORITY DATES OF SEPTEMBER 19, 1890, FOR
LANDS TRANSFERRED BY THE EXECUTIVE ORDER OF SAID DATE; FEBRUARY 2,
1911, FOR LANDS RESERVED BY THE EXECUTIVE ORDER OF SAID DATE; PROVIDED,
HOWEVER, THAT LANDS CONVEYED TO THE STATE OF CALIFORNIA PURSUANT TO THE
SWAMP LAND ACT (9 STAT. 519 (1850)) AS WELL AS ANY ACCRETIONS THERETO
TO WHICH THE OWNERS OF SUCH LAND MAY BE ENTITLED, AND LANDS PATENTED TO
THE SOUTHERN PACIFIC RAILROAD PURSUANT TO THE ACT OF JULY 27, 1866 (14
STAT. 292), SHALL NOT BE INCLUDED AS IRRIGABLE ACREAGE WITHIN THE
RESERVATION AND THAT THE ABOVE SPECIFIED DIVERSION REQUIREMENT SHALL BE
REDUCED BY 6.4 ACRE-FEET PER ACRE OF SUCH LAND THAT IS IRRIGABLE;
PROVIDED THAT THE QUANTITIES FIXED IN THIS PARAGRAPH AND PARAGRAPH (4)
SHALL BE SUBJECT TO APPROPRIATE ADJUSTMENT BY AGREEMENT OR DECREE OF
THIS COURT IN THE EVENT THAT THE BOUNDARIES OF THE RESPECTIVE
RESERVATIONS ARE FINALLY DETERMINED: 

(6)  THE LAKE MEAD NATIONAL RECREATION AREA IN ANNUAL QUANTITIES
REASONABLY NECESSARY TO FULFILL THE PURPOSES OF THE RECREATION AREA,
WITH PRIORITY DATES OF MAY 3, 1929, FOR LANDS RESERVED BY THE EXECUTIVE
ORDER OF SAID DATE (NO. 5105), AND APRIL 25, 1930, FOR LANDS RESERVED
BY THE EXECUTIVE ORDER OF SAID DATE (NO. 5339): 

(7)  THE HAVASU LAKE NATIONAL WILDLIFE REFUGE IN ANNUAL QUANTITIES
REASONABLY NECESSARY TO FULFILL THE PURPOSES OF THE REFUGE, NOT TO
EXCEED (I) 41,839 ACRE-FEET OF WATER DIVERTED FROM THE MAINSTREAM OR
(II) 37,339 ACRE-FEET OF CONSUMPTIVE USE OF MAINSTREAM WATER, WHICHEVER
OF (I) OR (II) IS LESS, WITH A PRIORITY DATE OF JANUARY 22, 1941, FOR
LANDS RESERVED BY THE EXECUTIVE ORDER OF SAID DATE (NO. 8647), AND A
PRIORITY DATE OF FEBRUARY 11, 1949, FOR LAND RESERVED BY THE PUBLIC
LAND ORDER OF SAID DATE (NO. 559): 

(8)  THE IMPERIAL NATIONAL WILDLIFE REFUGE IN ANNUAL QUANTITIES
REASONABLY NECESSARY TO FULFILL THE PURPOSES OF THE REFUGE NOT TO
EXCEED (I) 28,000 ACRE-FEET OF WATER DIVERTED FROM THE MAINSTREAM OR
(II) 23,000 ACRE-FEET OF CONSUMPTIVE USE OF MAINSTREAM WATER, WHICHEVER
OF (I) OR (II) IS LESS, WITH A PRIORITY DATE OF FEBRUARY 14, 1941: 

(9)  BOULDER CITY, NEVADA, AS AUTHORIZED BY THE ACT OF SEPTEMBER 2,
1958, 72 STAT. 1726, WITH A PRIORITY DATE OF MAY 15, 1931: 

PROVIDED, FURTHER, THAT CONSUMPTIVE USES FROM THE MAINSTREAM FOR THE
BENEFIT OF THE ABOVE-NAMED FEDERAL ESTABLISHMENTS SHALL, EXCEPT AS
NECESSARY TO SATISFY PRESENT PERFECTED RIGHTS IN THE ORDER OF THEIR
PRIORITY DATES WITHOUT REGARD TO STATE LINES, BE SATISFIED ONLY OUT OF
WATER AVAILABLE, AS PROVIDED IN SUBDIVISION (B) OF THIS ARTICLE, TO
EACH STATE WHEREIN SUCH USES OCCUR AND SUBJECT TO, IN THE CASE OF EACH
RESERVATION, SUCH RIGHTS AS HAVE BEEN CREATED PRIOR TO THE
ESTABLISHMENT OF SUCH RESERVATION BY CONTRACTS EXECUTED UNDER SECTION 5
OF THE BOULDER CANYON PROJECT ACT OR ANY OTHER APPLICABLE FEDERAL
STATUTE. 

III.  THE STATES OF ARIZONA, CALIFORNIA AND NEVADA, PALO VERDE
IRRIGATION DISTRICT, IMPERIAL IRRIGATION DISTRICT, COACHELLA VALLEY
COUNTY WATER DISTRICT, METROPOLITAN WATER DISTRICT OF SOUTHERN
CALIFORNIA, CITY OF LOS ANGELES, CITY OF SAN DIEGO, AND COUNTY OF SAN
DIEGO, AND ALL OTHER USERS OF WATER FROM THE MAINSTREAM IN SAID STATES,
THEIR OFFICERS, ATTORNEYS, AGENTS AND EMPLOYEES, BE AND THEY ARE HEREBY
SEVERALLY ENJOINED:    (A)  FROM INTERFERING WITH THE MANAGEMENT AND
OPERATION, IN CONFORMITY WITH ARTICLE II OF THIS DECREE, OF REGULATORY
STRUCTURES CONTROLLED BY THE UNITED STATES: 

(B)  FROM INTERFERING WITH OR PURPORTING TO AUTHORIZE THE
INTERFERENCE WITH RELEASES AND DELIVERIES, IN CONFORMITY WITH ARTICLE
II OF THIS DECREE, OF WATER CONTROLLED BY THE UNITED STATES: 

(C)  FROM DIVERTING OR PURPORTING TO AUTHORIZE THE DIVERSION OF WATER
FROM THE MAINSTREAM THE DIVERSION OF WHICH HAS NOT BEEN AUTHORIZED BY
THE UNITED STATES FOR USE IN THE RESPECTIVE STATES; PROVIDED, HOWEVER,
THAT NO PARTY NAMED IN THIS ARTICLE AND NO OTHER USER OF WATER IN SAID
STATES SHALL DIVERT OR PURPORT TO AUTHORIZE THE DIVERSION OF WATER FROM
THE MAINSTREAM THE DIVERSION OF WHICH HAS NOT BEEN AUTHORIZED BY THE
UNITED STATES FOR ITS PARTICULAR USE: 

(D)  FROM CONSUMING OR PURPORTING TO AUTHORIZE THE CONSUMPTIVE USE OF
WATER FROM THE MAINSTREAM IN EXCESS OF THE QUANTITIES PERMITTED UNDER
ARTICLE II OF THIS DECREE. 

IV.  THE STATE OF NEW MEXICO, ITS OFFICERS, ATTORNEYS, AGENTS AND
EMPLOYEES, BE AND THEY ARE AFTER FOUR YEARS FROM THE DATE OF THIS
DECREE HEREBY SEVERALLY ENJOINED: 

(A)  FROM DIVERTING OR PERMITTING THE DIVERSION OF WATER FROM SAN
SIMON CREEK, ITS TRIBUTARIES AND UNDERGROUND WATER SOURCES FOR THE
IRRIGATION OF MORE THAN A TOTAL OF 2,900 ACRES DURING ANY ONE YEAR, AND
FROM EXCEEDING A TOTAL CONSUMPTIVE USE OF SUCH WATER, FOR WHATEVER
PURPOSE, OF 72,000 ACRE-FEET DURING ANY PERIOD OF TEN CONSECUTIVE
YEARS; AND FROM EXCEEDING A TOTAL CONSUMPTIVE USE OF SUCH WATER, FOR
WHATEVER PURPOSE, OF 8,220 ACRE-FEET DURING ANY ONE YEAR: 

(B)  FROM DIVERTING OR PERMITTING THE DIVERSION OF WATER FROM THE SAN
FRANCISCO RIVER, ITS TRIBUTARIES AND UNDERGROUND WATER SOURCES FOR THE
IRRIGATION WITHIN EACH OF THE FOLLOWING AREAS OF MORE THAN THE
FOLLOWING NUMBER OF ACRES DURING ANY ONE YEAR: 

LUNA AREA                     225 

APACHE CREEK-ARAGON AREA      316 

RESERVE AREA                  725 

GLENWOOD AREA               1,003 AND FROM EXCEEDING A TOTAL
CONSUMPTIVE USE OF SUCH WATER FOR WHATEVER PURPOSE, OF 31,870 ACRE-FEET
DURING ANY PERIOD OF TEN CONSECUTIVE YEARS; AND FROM EXCEEDING A TOTAL
CONSUMPTIVE USE OF SUCH WATER, FOR WHATEVER PURPOSE, OF 4,112 ACRE-FEET
DURING ANY ONE YEAR:

(C)  FROM DIVERTING OR PERMITTING THE DIVERSION OF WATER FROM THE
GILA RIVER, ITS TRIBUTARIES (EXCLUSIVE OF THE SAN FRANCISCO RIVER AND
SAN SIMON CREEK AND THEIR TRIBUTARIES) AND UNDERGROUND WATER SOURCES
FOR THE IRRIGATION WITHIN EACH OF THE FOLLOWING AREAS OF MORE THAN THE
FOLLOWING NUMBER OF ACRES DURING ANY ONE YEAR: 

UPPER GILA AREA                              287 

CLIFF-GILA AND BUCKHORN-DUCK CREEK AREA    5,314 

RED ROCK AREA         1,456 AND FROM EXCEEDING A TOTAL CONSUMPTIVE
USE OF SUCH WATER (EXCLUSIVE OF USES IN VIRDEN VALLEY, NEW MEXICO), FOR
WHATEVER PURPOSE, OF 136,620 ACRE-FEET DURING ANY PERIOD OF TEN
CONSECUTIVE YEARS; AND FROM EXCEEDING A TOTAL CONSUMPTIVE USE OF SUCH
WATER (EXCLUSIVE OF USES IN VIRDEN VALLEY, NEW MEXICO), FOR WHATEVER
PURPOSE, OF 15,895 ACRE-FEET DURING ANY ONE YEAR: 

(D)  FROM DIVERTING OR PERMITTING THE DIVERSION OF WATER FROM THE
GILA RIVER AND ITS UNDERGROUND WATER SOURCES IN THE VIRDEN VALLEY, NEW
MEXICO, EXCEPT FOR USE ON LANDS DETERMINED TO HAVE THE RIGHT TO THE USE
OF SUCH WATER BY THE DECREE ENTERED BY THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA ON JUNE 29, 1935, IN UNITED STATES V. GILA
VALLEY IRRIGATION DISTRICT ET AL. (GLOBE EQUITY NO. 59)(HEREIN REFERRED
TO AS THE GILA DECREE), AND EXCEPT PURSUANT TO AND IN ACCORDANCE WITH
THE TERMS AND PROVISIONS OF THE GILA DECREE; PROVIDED, HOWEVER, THAT: 

(1)  THIS DECREE SHALL NOT ENJOIN THE USE OF UNDERGROUND WATER ON ANY
OF THE FOLLOWING LANDS (TABLE OMITTED) OR ON LANDS OR FOR OTHER USES IN
THE VIRDEN VALLEY TO WHICH SUCH USE MAY BE TRANSFERRED OR SUBSTITUTED
ON RETIREMENT FROM IRRIGATION OF ANY OF SAID SPECIFICALLY DESCRIBED
LANDS, UP TO A MAXIMUM TOTAL CONSUMPTIVE USE OF SUCH WATER OF 838.2
ACRE-FEET PER ANNUM, UNLESS AND UNTIL SUCH USES ARE ADJUDGED BY A COURT
OF COMPETENT JURISDICTION TO BE AN INFRINGEMENT OR IMPAIRMENT OF RIGHTS
CONFIRMED BY THE GILA DECREE; AND: 

(2)  THIS DECREE SHALL NOT PROHIBIT DOMESTIC USE OF WATER FROM THE
GILA RIVER AND ITS UNDERGROUND WATER SOURCES ON LANDS WITH RIGHTS
CONFIRMED BY THE GILA DECREE, OR ON FARMSTEADS LOCATED ADJACENT TO SAID
LANDS, OR IN THE VIRDEN TOWNSITE, UP TO A TOTAL CONSUMPTIVE USE OF 265
ACRE-FEET PER ANNUM IN ADDITION TO THE USES CONFIRMED BY THE GILA
DECREE, UNLESS AND UNTIL SUCH USE IS ADJUDGED BY A COURT OF COMPETENT
JURISDICTION TO BE AN INFRINGEMENT OR IMPAIRMENT OF RIGHTS CONFIRMED BY
THE GILA DECREE: 

(E)  PROVIDED, HOWEVER, THAT NOTHING IN THIS ARTICLE IV SHALL BE
CONSTRUED TO AFFECT RIGHTS AS BETWEEN INDIVIDUAL WATER USERS IN THE
STATE OF NEW MEXICO; NOR SHALL ANYTHING IN THIS ARTICLE BE CONSTRUED TO
AFFECT POSSIBLE SUPERIOR RIGHTS OF THE UNITED STATES ASSERTED ON BEHALF
OF NATIONAL FORESTS, PARKS, MEMORIALS, MONUMENTS AND LANDS ADMINISTERED
BY THE BUREAU OF LAND MANAGEMENT; AND PROVIDED FURTHER THAT IN ADDITION
TO THE DIVERSIONS AUTHORIZED HEREIN THE UNITED STATES HAS THE RIGHT TO
DIVERT WATER FROM THE MAINSTREAM OF THE GILA AND SAN FRANCISCO RIVERS
IN QUANTITIES REASONABLY NECESSARY TO FULFILL THE PURPOSES OF THE GILA
NATIONAL FOREST WITH PRIORITY DATES AS OF THE DATE OF WITHDRAWAL FOR
FOREST PURPOSES OF EACH AREA OF THE FOREST WITHIN WHICH THE WATER IS
USED: 

(F) PROVIDED, FURTHER, THAT NO DIVERSION FROM A STREAM AUTHORIZED IN
ARTICLE IVA) THROUGH (D) MAY BE TRANSFERRED TO ANY OF THE OTHER
STREAMS, NOR MAY ANY USE FOR IRRIGATION PURPOSES WITHIN ANY AREA ON ONE
OF THE STREAMS BE TRANSFERRED FOR USE FOR IRRIGATION PURPOSES TO ANY
OTHER AREA ON THAT STREAM. 

V. THE UNITED STATES SHALL PREPARE AND MAINTAIN, OR PROVIDE FOR THE
PREPARATION AND MAINTENANCE OF, AND SHALL MAKE AVAILABLE, ANNUALLY AND
AT SUCH SHORTER INTERVALS AS THE SECRETARY OF THE INTERIOR SHALL DEEM
NECESSARY OR ADVISABLE, FOR INSPECTION BY INTERESTED PERSONS AT ALL
REASONABLE TIMES AND AT A REASONABLE PLACE OR PLACES, COMPLETE,
DETAILED AND ACCURATE RECORDS OF: 

(A)  RELEASES OF WATER THROUGH REGULATORY STRUCTURES CONTROLLED BY
THE UNITED STATES: 

(B)  DIVERSONS OF WATER FROM THE MAINSTREAM, RETURN FLOW OF SUCH
WATER TO THE STREAM AS IS AVAILABLE FOR CONSUMPTIVE USE IN THE UNITED
STATES OR IN SATISFACTION OF THE MEXICAN TREATY OBLIGATION, AND
CONSUMPTIVE USE OF SUCH WATER.  THESE QUANTITIES SHALL BE STATED
SEPARATELY AS TO EACH DIVERTER FROM THE MAINSTREAM, EACH POINT OF
DIVERSION, AND EACH OF THE STATES OF ARIZONA, CALIFORNIA AND NEVADA: 

(C)  RELEASES OF MAINSTREAM WATER PURSUANT TO ORDERS THEREFOR BUT NOT
DIVERTED BY THE PARTY ORDERING THE SAME, AND THE QUANTITY OF SUCH WATER
DELIVERED TO MEXICO IN SATISFACTION OF THE MEXICAN TREATY OR DIVERTED
BY OTHERS IN SATISFACTION OF RIGHTS DECREED HEREIN.  THESE QUANTITIES
SHALL BE STATED SEPARATELY AS TO EACH DIVERTER FROM THE MAINSTREAM,
EACH POINT OF DIVERSION, AND EACH OF THE STATES OF ARIZONA, CALIFORNIA
AND NEVADA: 

(D)  DELIVERIES TO MEXICO OF WATER IN SATISFACTION OF THE OBLIGATIONS
OF PART III OF THE TREATY OF FEBRUARY 3, 1944, AND, SEPARATELY STATED,
WATER PASSING TO MEXICO IN EXCESS OF TREATY REQUIREMENTS: 

(E)  DIVERSIONS OF WATER FROM THE MAINSTREAM OF THE GILA AND SAN
FRANCISCO RIVERS AND THE CONSUMPTIVE USE OF SUCH WATER, FOR THE BENEFIT
OF THE GILA NATIONAL FOREST. 

VI.  WITHIN TWO YEARS FROM THE DATE OF THIS DECREE, THE STATES OF
ARIZONA, CALIFORNIA, AND NEVADA SHALL FURNISH TO THIS COURT AND TO THE
SECRETARY OF THE INTERIOR A LIST OF THE PRESENT PERFECTED RIGHTS, WITH
THEIR CLAIMED PRIORITY DATES, IN WATERS OF THE MAINSTREAM WITHIN EACH
STATE, RESPECTIVELY, IN TERMS OF CONSUMPTIVE USE, EXCEPT THOSE RELATING
TO FEDERAL ESTABLISHMENTS.  ANY NAMED PARTY TO THIS PROCEEDING MAY
PRESENT ITS CLAIM OF PRESENT PERFECTED RIGHTS OR ITS OPPOSITION TO THE
CLAIMS OF OTHERS.  THE SECRETARY OF THE INTERIOR SHALL SUPPLY SIMILAR
INFORMATION, WITHIN A SIMILAR PERIOD OF TIME, WITH RESPECT TO THE
CLAIMS OF THE UNITED STATES TO PRESENT PERFECTED RIGHTS WITHIN EACH
STATE.  IF THE PARTIES AND THE SECRETARY OF THE INTERIOR ARE UNABLE AT
THAT TIME TO AGREE ON THE PRESENT PERFECTED RIGHTS TO THE USE OF
MAINSTREAM WATER IN EACH STATE, AND THEIR PRIORITY DATES, ANY PARTY MAY
APPLY TO THE COURT FOR THE DETERMINATION OF SUCH RIGHTS BY THE COURT. 

VII.  THE STATE OF NEW MEXICO SHALL, WITHIN FOUR YEARS FROM THE DATE
OF THIS DECREE, PREPARE AND MAINTAIN, OR PROVIDE FOR THE PREPARATION
AND MAINTENANCE OF, AND SHALL ANNUALLY THEREAFTER MAKE AVAILABLE FOR
INSPECTION AT ALL REASONABLE TIMES AND AT A REASONABLE PLACE OR PLACES,
COMPLETE, DETAILED AND ACCURATE RECORDS OF: 

(A)  THE ACREAGES OF ALL LANDS IN NEW MEXICO IRRIGATED EACH YEAR FROM
THE GILA RIVER, SAN SIMON CREEK, AND THEIR TRIBUTARIES AND ALL OF THEIR
UNDERGROUND WATER SOURCES, STATED BY LEGAL DESCRIPTION AND COMPONENT
ACREAGES AND SEPARATELY AS TO EACH OF THE AREAS DESIGNATED IN ARTICLE
IV OF THIS DECREE AND AS TO EACH OF THE THREE STREAMS: 

(B)  ANNUAL DIVERSIONS AND CONSUMPTIVE USES OF WATER IN NEW MEXICO,
FROM THE GILA RIVER, THE SAN FRANCISCO RIVER, SAN SIMON CREEK, AND
THEIR TRIBUTARIES AND ALL THEIR UNDERGROUND WATER SOURCES, STATED
SEPARATELY AS TO EACH OF THE THREE STREAMS. 

VIII.  THIS DECREE SHALL NOT AFFECT: 

(A)  THE RELATIVE RIGHTS INTER SESE OF WATER USERS WITHIN ANY ONE OF
THE STATES, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN: 

(B)  THE RIGHTS OR PRIORITIES TO WATER IN ANY OF THE LOWER BASIN
TRIBUTARIES OF THE COLORADO RIVER IN THE STATES OF ARIZONA, CALIFORNIA,
NEVADA, NEW MEXICO AND UTAH EXCEPT THE GILA RIVER SYSTEM: 

(C)  THE RIGHTS OR PRIORITIES, EXCEPT AS SPECIFIC PROVISION IS MADE
HEREIN, OF ANY INDIAN RESERVATION, NATIONAL FOREST, PARK, RECREATION
AREA, MONUMENT OR MEMORIAL, OR OTHER LANDS OF THE UNITED STATES: 

(D)  ANY ISSUE OF INTERPRETATION OF THE COLORADO RIVER COMPACT. 

IX.  ANY OF THE PARTIES MAY APPLY AT THE FOOT OF THIS DECREE FOR ITS
AMENDMENT OR FOR FURTHER RELIEF.  THE COURT RETAINS JURISDICTION OF
THIS SUIT FOR THE PURPOSE OF ANY ORDER, DIRECTION, OR MODIFICATION OF
THE DECREE, OR ANY SUPPLEMENTARY DECREE, THAT MAY AT ANY TIME BE DEEMED
PROPER IN RELATION TO THE SUBJECT MATTER IN CONTROVERSY. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART DISSENT TO THE EXTENT THAT
THE DECREE CONFLICTS WITH THE VIEWS EXPRESSED IN THE DISSENTING OPINION
OF MR. JUSTICE HARLAN, 373 U.S. 546, 603. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





ARIZONA V. CALIFORNIA 383 U.S. 268 


NO. 8, ORIGINAL.  DECIDED JUNE 3, 1963.  - DECREE ENTERED MARCH 9,
1964.  - AMENDED DECREE ENTERED FEBRUARY 28, 1966.  - OPINION REPORTED:
373 U.S. 546; DECREE REPORTED:  376 U.S. 340. 


ARIZONA V. CALIFORNIA ET AL. 

ORDERED. 

THE JOINT MOTION TO AMEND ARTICLE VI OF THE DECREE IN THIS CASE
ENTERED ON MARCH 9, 1964, IS HEREBY GRANTED AND ARTICLE VI OF SAID
DECREE IS HEREBY AMENDED TO READ AS FOLLOWS: 

VI.  WITHIN THREE YEARS FROM THE DATE OF THIS DECREE (MARCH 9, 1964),
THE STATES OF ARIZONA, CALIFORNIA, AND NEVADA SHALL FURNISH TO THIS
COURT AND TO THE SECRETARY OF THE INTERIOR A LIST OF THE PRESENT
PERFECTED RIGHTS, WITH THEIR CLAIMED PRIORITY DATES, IN WATERS OF THE
MAINSTREAM WITHIN EACH STATE, RESPECTIVELY, IN TERMS OF CONSUMPTIVE
USE, EXCEPT THOSE RELATING TO FEDERAL ESTABLISHMENTS.  ANY NAMED PARTY
TO THIS PROCEEDING MAY PRESENT ITS CLAIM OF PRESENT PERFECTED RIGHTS OR
ITS OPPOSITION TO THE CLAIMS OF OTHERS.  THE SECRETARY OF THE INTERIOR
SHALL SUPPLY SIMILAR INFORMATION, WITHIN A SIMILAR PERIOD OF TIME, WITH
RESPECT TO THE CLAIMS OF THE UNITED STATES TO PRESENT PERFECTED RIGHTS
WITHIN EACH STATE.  IF THE PARTIES AND THE SECRETARY OF THE INTERIOR
ARE UNABLE AT THAT TIME TO AGREE ON THE PRESENT PERFECTED RIGHTS TO THE
USE OF MAINSTREAM WATER IN EACH STATE, AND THEIR PRIORITY DATES, ANY
PARTY MAY APPLY TO THE COURT FOR THE DETERMINATION OF SUCH RIGHTS BY
THE COURT. 

THE CHIEF JUSTICE AND MR. JUSTICE FORTAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS MOTION. 
..END :




















SPERRY V. FLORIDA BAR 373 U.S. 379 


NO. 322.  ARGUED MARCH 25, 1963.  - DECIDED MAY 27, 1963.  - 140 SO. 2D
587, JUDGMENT VACATED AND CAUSE REMANDED. 


PETITIONER IS NOT A LAWYER AND HAS NEVER BEEN ADMITTED TO THE BAR OF
ANY STATE; BUT, UNDER REGULATIONS ISSUED BY THE COMMISSIONER OF PATENTS
WITH THE APPROVAL OF THE SECRETARY OF COMMERCE PURSUANT TO 35 U.S.C.
SEC. 31, HE HAS BEEN AUTHORIZED TO PRACTICE BEFORE THE UNITED STATES
PATENT OFFICE.  AS PART OF THAT PRACTICE, HE HAS FOR MANY YEARS
REPRESENTED PATENT APPLICANTS, PREPARED AND PROSECUTED THEIR
APPLICATIONS, AND ADVISED THEM IN CONNECTION WITH THEIR APPLICATIONS IN
THE STATE OF FLORIDA.  THE FLORIDA BAR SUED IN THE SUPREME COURT OF
FLORIDA TO ENJOIN THE PERFORMANCE OF THESE AND OTHER SPECIFIED ACTS
WITHIN THE STATE, CONTENDING THAT THEY CONSTITUTED UNAUTHORIZED
PRACTICE OF LAW.  HELD: 

1.  FLORIDA MAY NOT PROHIBIT PETITIONER FROM PERFORMING WITHIN THE
STATE TASKS WHICH ARE INCIDENT TO THE PREPARATION AND PROSECUTION OF
PATENT APPLICATIONS BEFORE THE PATENT OFFICE.  PP. 381-402. 

(A)  THE DETERMINATION OF THE SUPREME COURT OF FLORIDA THAT THE
PREPARATION AND PROSECUTION OF PATENT APPLICATIONS FOR OTHERS
CONSTITUTES THE PARACTICE OF LAW, WITHIN THE MEANING OF THE LAW OF THAT
STATE, IS NOT QUESTIONED.  P. 383. 

(B)  FLORIDA HAS A SUBSTANTIAL INTEREST IN REGULATING THE PRACTICE OF
LAW WITHIN THE STATE, AND, IN THE ABSENCE OF FEDERAL LEGISLATION ON THE
SUBJECT, IT COULD VALIDLY PROHIBIT NONLAWYERS FROM ENGAGING IN THIS
CIRCUMSCRIBED FORM OF PATENT PRACTICE.  P. 383. 

(C)  A FEDERAL STATUTE, 35 U.S.C SEC. 31, EXPRESSLY PERMITS THE
COMMISSIONER OF PATENTS TO AUTHORIZE PRACTICE BEFORE THE PATENT OFFICE
BY NONLAWYERS; THE COMMISSIONER HAS EXPLICITLY GRANTED SUCH AUTHORITY;
AND FLORIDA MAY NOT DENY TO THOSE FAILING TO MEET ITS OWN
QUALIFICATIONS THE RIGHT TO PERFORM ACTS WITHIN THE SCOPE OF THE
FEDERAL AUTHORITY.  PP. 384-385. 

(D)  THERE CANNOT BE READ INTO THE FEDERAL STATUTE AND REGULATIONS A
CONDITION THAT SUCH PRACTICE MUST NOT BE INCONSISTENT WITH STATE LAW,
THUS LEAVING REGISTERED PATENT PRACTITIONERS WITH THE UNQUALIFIED RIGHT
TO PRACTICE ONLY IN THE PHYSICAL PRESENCE OF THE PATENT OFFICE AND IN
THE DISTRICT OF COLUMBIA, WHERE THAT OFFICE IS NOW LOCATED.  PP. 385
387. 

(E)  THE LEGISLATIVE HISTORY OF THE STATUTE AND ITS PREDECESSOR
PROVISIONS SHOWS THAT CONGRESS RECOGNIZED THAT REGISTRATION IN THE
PATENT OFFICE CONFERS A RIGHT TO PRACTICE BEFORE THAT OFFICE, WITHOUT
REGARD TO WHETHER THE STATE WITHIN WHICH THE PRACTICE IS CONDUCTED
WOULD OTHERWISE PROHIBIT SUCH CONDUCT.  PP. 387-402. 

(F)  SINCE PATENT PRACTITIONERS ARE AUTHORIZED TO PRACTICE ONLY
BEFORE THE PATENT OFFICE, THE STATE MAINTAINS CONTROL OVER THE PRACTICE
OF LAW WITHIN ITS BORDERS EXCEPT TO THE LIMITED EXTENT NECESSARY FOR
THE ACCOMPLISHMENT OF THE FEDERAL OBJECTIVES.  P. 402. 

2.  AS SO CONSTRUED, 35 U.S.C. SEC. 31 IS CONSTITUTIONAL.  PP. 403
404. 

(A)  BY ESTABLISHING THE PATENT OFFICE AND AUTHORIZING COMPETENT
PERSONS TO ASSIST IN THE PREPARATION OF PATENT APPLICATIONS, CONGRESS
HAS NOT EXCEEDED THE BOUNDS OF WHAT IS "NECESSARY AND PROPER" TO THE
OPERATION OF THE PATENT SYSTEM ESTABLISHED UNDER ART. I, SEC. 8, CL. 8,
OF THE CONSTITUTION.  P. 403. 

(B)  HAVING ACTED WITHIN THE SCOPE OF THE POWERS "DELEGATED TO THE
UNITED STATES BY THE CONSTITUTION," CONGRESS HAS NOT EXCEEDED THE
LIMITS OF THE TENTH AMENDMENT, DESPITE THE CONCURRENT EFFECTS OF ITS
LEGISLATION UPON A MATTER OTHERWISE WITHIN THE CONTROL OF THE STATE. 
P. 403. 

(C)  IN VIEW OF THE STANDARDS PRESCRIBED IN 35 U.S.C. SEC. 31 TO
GUIDE THE PATENT OFFICE IN ITS ADMISSIONS POLICY, IT CANNOT BE SAID
THAT CONGRESS HAS IMPROPERLY DELEGATED ITS POWERS TO THE ADMINISTRATIVE
AGENCY.  PP. 403-404. 

SPERRY V. FLORIDA EX REL. FLORIDA BAR. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS A PRACTITIONER REGISTERED TO PRACTICE BEFORE THE UNITED
STATES PATENT OFFICE.  HE HAS NOT BEEN ADMITTED TO PRACTICE LAW BEFORE
THE FLORIDA OR ANY OTHER BAR.  ALLEGING, AMONG OTHER THINGS, THAT
PETITIONER "IS ENGAGED IN THE UNAUTHORIZED PRACTICE OF LAW, IN THAT
ALTHOUGH HE IS NOT A MEMBER OF THE FLORIDA BAR, HE NEVERTHELESS
MAINTAINS AN OFFICE  ...  IN TAMPA, FLORIDA,  ... HOLDS HIMSELF OUT TO
THE PUBLIC AS A PATENT ATTORNEY  ...  REPRESENTS FLORIDA CLIENTS BEFORE
THE UNITED STATES PATENT OFFICE,  ...  HAS RENDERED OPINIONS AS TO
PATENTABILITY, AND  ...  HAS PREPARED VARIOUS LEGAL INSTRUMENTS,
INCLUDING  ...  APPLICATIONS AND AMENDMENTS TO APPLICATIONS FOR LETTERS
PATENT, AND FILED SAME IN THE UNITED STATES PATENT OFFICE IN
WASHINGTON, D.C.," THE FLORIDA BAR INSTITUTED THESE PROCEEDINGS IN THE
SUPREME COURT OF FLORIDA TO ENJOIN THE PERFORMANCE OF THESE AND OTHER
SPECIFIED ACTS WITHIN THE STATE.  PETITIONER FILED AN ANSWER IN WHICH
HE ADMITTED THE ABOVE ALLEGATIONS BUT PLEADED AS A DEFENSE "THAT THE
WORK PERFORMED BY HIM FOR FLORIDA CITIZENS IS SOLELY THAT WORK WHICH IS
PRESENTED TO THE UNITED STATES PATENT OFFICE AND THAT HE CHARGES FEES
SOLELY FOR HIS WORK OF PREPARING AND PROSECUTING PATENT APPLICATIONS
AND PATENT ASSIGNMENTS AND DETERMINATIONS INCIDENT TO PREPARING AND
PROSECUTING PATENT APPLICATIONS AND ASSIGNMENTS."  THEREUPON, THE COURT
GRANTED THE BAR'S MOTION FOR A SUMMARY DECREE AND PERMANENTLY ENJOINED
THE PETITIONER FROM PURSUING THE FOLLOWING ACTIVITIES IN FLORIDA UNTIL
AND UNLESS HE BECAME A MEMBER OF THE STATE BAR: 

"1.  USING THE TERM 'PATENT ATTORNEY' OR HOLDING HIMSELF OUT TO BE AN
ATTORNEY AT LAW IN THIS STATE IN ANY FIELD OR PHASE OF THE LAW (WE
RECOGNIZE THAT THE RESPONDENT ACCORDING TO THE RECORD BEFORE US HAS
ALREADY VOLUNTARILY CEASED THE USE OF THE WORD 'ATTORNEY'): 

"2.  RENDERING LEGAL OPINIONS, INCLUDING OPINIONS AS TO PATENTABILITY
OR INFRINGEMENT ON PATENT RIGHTS: 

"3.  PREPARING, DRAFTING AND CONSTRUING LEGAL DOCUMENTS: 

"4.  HOLDING HIMSELF OUT, IN THIS STATE, AS QUALIFIED TO PREPARE AND
PROSECUTE APPLICATIONS FOR LETTERS PATENT, AND AMENDMENTS THERETO: 

"5.  PREPARATION AND PROSECUTION OF APPLICATIONS FOR LETTERS PATENT,
AND AMENDMENTS THERETO, IN THIS STATE; AND: 

"6.  OTHERWISE ENGAGING IN THE PRACTICE OF LAW." 

THE SUPREME COURT OF FLORIDA CONCLUDED THAT PETITIONER'S CONDUCT
CONSTITUTED THE UNAUTHORIZED PRACTICE OF LAW WHICH THE STATE, ACTING
UNDER ITS POLICE POWER, COULD PROPERLY PROHIBIT, AND THAT NEITHER
FEDERAL STATUTE NOR THE CONSTITUTION OF THE UNITED STATES EMPOWERED ANY
FEDERAL BODY TO AUTHORIZE SUCH CONDUCT IN FLORIDA.  140 SO. 2D 587. 

IN HIS PETITION FOR CERTIORARI, PETITIONER ATTACKED THE INJUNCTION
"ONLY INSOFAR AS IT PROHIBITS HIM FROM ENGAGING IN THE SPECIFIC
ACTIVITIES  ...  (REFERRED TO ABOVE), COVERED BY HIS FEDERAL LICENSE TO
PRACTICE BEFORE THE PATENT OFFICE.  HE DOES NOT CLAIM THAT HE HAS ANY
RIGHT OTHERWISE TO ENGAGE IN ACTIVITIES THAT WOULD BE REGARDED AS THE
PRACTICE OF LAW."  (FN1)  WE GRANTED CERTIORARI, 371 U.S. 875, TO
CONSIDER THE SIGNIFICANT, BUT NARROW, QUESTIONS THUS PRESENTED. 

WE DO NOT QUESTION THE DETERMINATION THAT UNDER FLORIDA LAW THE
PREPARATION AND PROSECUTION OF PATENT APPLICATIONS FOR OTHERS
CONSTITUTES THE PRACTICE OF LAW.  GREENOUGH V. TAX ASSESSORS, 331 U.S.
486; MURDOCK V. MEMPHIS, 20 WALL.  590.  SUCH CONDUCT INEVITABLY
REQUIRES THE PRACTITIONER TO CONSIDER AND ADVISE HIS CLIENTS AS TO THE
PATENTABILITY OF THEIR INVENTIONS UNDER THE STATUTORY CRITERIA, 35
U.S.C. SECS. 101-103, 161, 171, AS WELL AS TO CONSIDER THE ADVISABILITY
OF RELYING UPON ALTERNATIVE FORMS OF PROTECTION WHICH MAY BE AVAILABLE
UNDER STATE LAW.  IT ALSO INVOLVES HIS PARTICIPATION IN THE DRAFTING OF
THE SPECIFICATION AND CLAIMS OF THE PATENT APPLICATION, 35 U.S.C. SEC.
112, WHICH THIS COURT LONG AGO NOTED "CONSTITUTES ONE OF THE MOST
DIFFICULT LEGAL INSTRUMENTS TO DRAW WITH ACCURACY," TOPLIFF V. TOPLIFF,
145 U.S. 156, 171.  AND UPON REJECTION OF THE APPLICATION, THE
PRACTITIONER MAY ALSO ASSIST IN THE PREPARATION OF AMENDMENTS, 37 CFR
SECS. 1.117-1.126, WHICH FREQUENTLY REQUIRES WRITTEN ARGUMENT TO
ESTABLISH THE PATENTABILITY OF THE CLAIMED INVENTION UNDER THE
APPLICABLE RULES OF LAW AND IN LIGHT OF THE PRIOR ART. 37 CFR SEC.
1.119.  NOR DO WE DOUBT THAT FLORIDA HAS A SUBSTANTIAL INTEREST IN
REGULATING THE PRACTICE OF LAW WITHIN THE STATE AND THAT, IN THE
ABSENCE OF FEDERAL LEGISLATION, IT COULD VALIDLY PROHIBIT NONLAWYERS
FROM ENGAGING IN THIS CIRCUMSCRIBED FORM OF PATENT PRACTICE.  (FN2) 

BUT "THE LAW OF THE STATE, THOUGH ENACTED IN THE EXERCISE OF POWERS
NOT CONTRAVERTED, MUST YIELD" WHEN INCOMPATIBLE WITH FEDERAL
LEGISLATION.  GIBBONS V. OGDEN, 9 WHEAT.  1, 211.  CONGRESS HAS
PROVIDED THAT THE COMMISSIONER OF PATENTS "MAY PRESCRIBE REGULATIONS
GOVERNING THE RECOGNITION AND CONDUCT OF AGENTS, ATTORNEYS, OR OTHER
PERSONS REPRESENTING APPLICANTS OR OTHER PARTIES BEFORE THE PATENT
OFFICE, 35 U.S.C SEC. 31, (FN3) AND THE COMMISSIONER, PURSUANT TO SEC.
31, HAS PROVIDED BY REGULATION THAT "AN APPLICANT FOR PATENT  ...  MAY
BE REPRESENTED BY AN ATTORNEY OR AGENT AUTHORIZED TO PRACTICE BEFORE
THE PATENT OFFICE IN PATENT CASES."  37 CFR SEC. 1.31.  THE CURRENT
REGULATIONS ESTABLISH TWO SEPARATE REGISTERS "ON WHICH ARE ENTERED THE
NAMES OF ALL PERSONS RECOGNIZED AS ENTITLED TO REPRESENT APPLICANTS
BEFORE THE PATENT OFFICE IN THE PREPARATION AND PROSECUTION OF
APPLICATIONS FOR PATENT."  37 CFR SEC. 1.341.  ONE REGISTER IS FOR
ATTORNEYS AT LAW, 37 CFR SEC. 1.341(A), AND THE OTHER IS FOR NONLAWYER
"AGENTS."  37 CFR SEC. 1.341(B).  A PERSON MAY BE ADMITTED UNDER EITHER
CATEGORY ONLY BY ESTABLISHING "THAT HE IS OF GGOD MORAL CHARACTER AND
OF GOOD REPUTE AND POSSESSED OF THE LEGAL AND SCIENTIFIC AND TECHNICAL
QUALIFICATIONS NECESSARY TO ENABLE HIM TO RENDER APPLICANTS FOR PATENTS
VALUABLE SERVICE, AND IS OTHERWISE COMPETENT TO ADVISE AND ASSIST THEM
IN THE PRESENTATION AND PROSECUTION OF THEIR APPLICATIONS BEFORE THE
PATENT OFFICE."  37 CFR SEC. 1.341(C). 

THE STATUTE THUS EXPRESSLY PERMITS THE COMMISSIONER TO AUTHORIZE
PRACTICE BEFORE THE PATENT OFFICE BY NONLAWYERS, AND THE COMMISSIONER
HAS EXPLICITLY GRANTED SUCH AUTHORITY.  IF THE AUTHORIZATION IS
UNQUALIFIED, THEN, BY VIRTUE OF THE SUPREMACY CLAUSE, FLORIDA MAY NOT
DENY TO THOSE FAILING TO MEET ITS OWN QUALIFICATIONS THE RIGHT TO
PERFORM THE FUNCTIONS WITHIN THE SCOPE OF THE FEDERAL AUTHORITY.   A
STATE MAY NOT ENFORCE LICENSING REQUIREMENTS WHICH, THOUGH VALID IN THE
ABSENCE OF FEDERAL REGULATION, GIVE "THE STATE'S LICENSING BOARD A
VIRTUAL POWER OF REVIEW OVER THE FEDERAL DETERMINATION" THAT A PERSON
OR AGENCY IS QUALIFIED AND ENTITLED TO PERFORM CERTAIN FUNCTIONS, (FN4)
OR WHICH IMPOSE UPON THE PERFORMANCE OF ACTIVITY SANCTIONED BY FEDERAL
LICENSE ADDITIONAL CONDITIONS NOT CONTEMPLATED BY CONGRESS.  (FN5)  "NO
STATE LAW CAN HINDER OR OBSTRUCT THE FREE USE OF A LICENSE GRANTED
UNDER AN ACT OF CONGRESS."  PENNSYLVANIA V. WHEELING & B. BRIDGE CO.,
13 HOW.  518, 566. 

RESPONDENT ARGUES, HOWEVER, THAT WE MUST READ INTO THE AUTHORIZATION
CONFERRED BY THE FEDERAL STATUTE AND REGULATIONS THE CONDITION THAT
SUCH PRACTICE NOT BE INCONSISTENT WITH STATE LAW, THUS LEAVING
REGISTERED PRACTITIONERS WITH THE UNQUALIFIED RIGHT TO PRACTICE ONLY IN
THE PHYSICAL PRESENCE OF THE PATENT OFFICE AND IN THE DISTRICT OF
COLUMBIA, WHERE THE OFFICE IS NOW LOCATED. 

THE ONLY LANGUAGE IS EITHER THE STATUTE OR REGULATIONS WHICH AFFORDS
ANY PLAUSIBLE SUPPORT FOR THIS VIEW IS THE PROVISION IN THE REGULATIONS
THAT "REGISTRATION IN THE PATENT OFFICE  ...  SHALL ONLY ENTITLE THE
PERSONS REGISTERED TO PRACTICE BEFORE THE PATENT OFFICE."  37 CFR SEC.
1.341.  RESPONDENT SUGGESTS THAT THE MEANING OF THIS LIMITATION IS
CLARIFIED BY REFERENCE TO THE PREDECESSOR PROVISION, WHICH PROVIDED
THAT REGISTRATION "SHALL NOT BE CONSTRUED AS AUTHORIZING PERSONS NOT
MEMBERS OF THE BAR TO PRACTICE LAW."  3 FED. REG. 2429.  YET THE
PROGRESSION TO THE MORE CIRCUMSCRIBED LANGUAGE WITHOUT MORE TENDS TO
INDICATE THAT THE PROVISION WAS INTENDED ONLY TO EMPHASIZE THAT
REGISTRATION IN THE PATENT OFFICE DOES NOT AUTHORIZE THE GENERAL
PRACTICE OF PATENT LAW, BUT SANCTIONS ONLY THE PERFORMANCE OF THOSE
SERVICES WHICH ARE REASONABLY NECESSARY AND INCIDENT TO THE PREPARATION
AND PROSECUTION OF PATENT APPLICATIONS.  THAT NO MORE WAS INTENDED IS
FURTHER SHOWN BY THE CONTRAST WITH THE REGULATIONS GOVERNING PRACTICE
BEFORE THE PATENT OFFICE IN TRADEMARK CASES, ASLO ISSUED BY THE
COMMISSIONER OF PATENTS.  THESE REGULATIONS NOW PROVIDE THAT
"RECONGITION OF ANY PERSON UNDER THIS SECTION IS NOT TO BE CONSTRUED AS
SANCTIONING OR AUTHORIZING THE PERFORMANCE OF ANY ACTS REGARDED IN THE
JURISDICTION WHERE PERFORMED AS THE UNAUTHORIZED PRACTICE OF LAW."  37
CFR SEC. 2.12(D).  THE COMPARISON IS PERHAPS SUFFICIENTLY TELLING.  BUT
ANY POSSIBLE UNCERTAINTY AS TO THE INTENDED MEANING OF THE COMMISSIONER
MUST BE DISPELLED BY THE FACT THAT WHEN THE PRESENT REGULATIONS WERE
AMENDED IN 1948, (FN6) IT WAS FIRST PROPOSED TO ADD A PROVISION SIMILAR
TO THAT APPEARING IN THE TRADEMARK REGULATIONS.  (FN7)  AFTER OBJECTION
HAD BEEN LEVELED AGAINST THE REVISION ON THE GROUND THAT IT "INDICATED
THAT THE OFFICE THINKS THAT THE STATES HAVE THE POWER TO CIRCUMSCRIBE
AND LIMIT THE RIGHTS OF PATENT ATTORNEYS WHO ARE NOT LAWYERS," (FN8)
THE MORE SWEEPING LANGUAGE WAS DELETED AND THE WORDING MODIFIED TO ITS
PRESENT FORM. 

BEREFT OF SUPPORT IN THE REGULATIONS, RESPONDENT DIRECTS US TO THE
LEGISLATIVE HISTORY OF THE STATUTE TO CONFIRM ITS UNDERSTANDING THAT
SEC. 31 AND ITS PREDECESSOR PROVISIONS WERE NOT DESIGNED TO AUTHORIZE
PRACTICE NOT CONDONED BY THE STATE.  INSOFAR AS THIS HISTORY PROVIDES
ANY INSIGHT INTO THE INTENT OF CONGRESS, HOWEVER, WE ARE CONVINCED THAT
THE INTERPRETATION WHICH RESPONDENT ASKS US TO GIVE THE STATUTE IS
INCONSISTENT WITH THE ASSUMPTIONS UPON WHICH CONGRESS HAS ACTED FOR
OVER A CENTURY. 

EXAMINATION OF THE DEVELOPMENT OF PRACTICE BEFORE THE PATENT OFFICE
AND ITS GOVERNMENTAL REGULATION REVEALS THAT:  (1) NONLAWYERS HAVE
PRACTICED BEFORE THE OFFICE FROM ITS INCEPTION, WITH THE EXPRESS
APPROVAL OF THE PATENT OFFICE AND TO THE KNOWLEDGE OF CONGRESS; (2)
DURING PROLONGED CONGRESSIONAL STUDY OF UNETHICAL PRACTICES BEFORE THE
PATENT OFFICE, THE RIGHT OF NONLAWYER AGENTS TO PRACTICE BEFORE THE
OFFICE WENT UNQUESTIONED, AND THERE WAS NO SUGGESTION THAT ABUSES MIGHT
BE CURBED BY STATE REGULATION; (3) DESPITE PROTESTS OF THE BAR,
CONGRESS IN ENACTING THE ADMINISTRATIVE PROCEDURE ACT REFUSED TO LIMIT
THE RIGHT TO PRACTICE BEFORE THE ADMINISTRATIVE AGENCIES TO LAWYERS;
AND (4) THE PATENT OFFICE HAS DEFENDED THE VALUE OF NONLAWYER
PRACTITIONERS WHILE TAKING STEPS TO PROTECT THE INTERESTS WHICH A STATE
HAS IN PROHIBITING UNAUTHORIZED PRACTICE OF LAW.  WE FIND IMPLICIT IN
THIS HISTORY CONGRESSIONAL (AND ADMINISTRATIVE) RECOGNITION THAT
REGISTRATION IN THE PATENT OFFICE CONFERS A RIGHT TO PRACTICE BEFORE
THE OFFICE WITHOUT REGARD TO WHETHER THE STATE WITHIN WHICH THE
PRACTICE IS CONDUCTED WOULD OTHERWISE PROHIBIT SUCH CONDUCT. 

THE POWER OF THE COMMISSIONER OF PATENTS TO REGULATE PRACTICE BEFORE
THE PATENT OFFICE DATES BACK TO 1861, WHEN CONGRESS FIRST PROVIDED THAT
"FOR GROSS MISCONDUCT HE MAY REFUSE TO RECOGNIZE ANY PERSON AS A PATENT
AGENT, EITHER GENERALLY OR IN ANY PARTICULAR CASE  ...  ."  (FN9)  THE
"RULES AND DIRECTIONS" ISSUED BY THE COMMISSIONER IN 1869 PROVIDED THAT
"ANY PERSON OF INTELLIGENCE AND GOOD MORAL CHARACTER MAY APPEAR AS THE
ATTORNEY IN FACT OR AGENT OF AN APPLICANT UPON FILING PROPER POWER OF
ATTORNEY."  (FN10)  FROM THE OUTSET, A SUBSTANTIAL NUMBER OF THOSE
APPEARING IN THIS CAPACITY WERE ENGINEERS OR CHEMISTS FAMILIAR WITH THE
TECHNICAL SUBJECTS TO WHICH THE PATENT APPLICATIONS RELATED.  "MANY OF
THEM WERE NOT MEMBERS OF THE BAR.  IT PROBABLY NEVER OCCURRED TO
ANYBODY THAT THEY SHOULD BE."  (FN11)  MOREOVER, ALTHOUGH A
CONCENTRATION OF PATENT PRACTITIONERS DEVELOPED IN WASHINGTON, D.C.,
THE REGULATIONS HAVE PROVIDED SINCE THE REORGANIZATION OF THE PATENT
OFFICE IN 1836 THAT PERSONAL ATTENDANCE IN WASHINGTON IS UNNECESSARY
AND THAT BUSINESS WITH THE OFFICE SHOULD BE TRANSACTED IN WRITING. 
(FN12)  THE BULK OF PRACTITIONERS ARE NOW SCATTERED THROUGHOUT THE
COUNTRY, AND HAVE BEEN SO DISTRIBUTED FOR MANY YEARS.  (FN13)  AS A
PRACTICAL MATTER, IF PRACTITIONERS WERE NOT SO LOCATED, AND THUS COULD
NOT EASILY CONSULT WITH THE INVENTORS WITH WHOM THEY DEAL, THEIR
EFFECTIVENESS WOULD OFTEN BE CONSIDERABLY IMPAIRED.  (FN14)
RESPONDENT'S SUGGESTION THAT PRACTICE BY NONLAWYERS WAS INTENDED TO BE
CONFINED TO THE DISTRICT OF COLUMBIA THUS ASSUMES EITHER CONGRESSIONAL
IGNORANCE OR DISREGARD OF LONG-ESTABLISHED PRACTICE. 

DESPITE THE EARLY RECOGNITION OF NONLAWYERS BY THE PATENT OFFICE,
THESE AGENTS , NOT SUBJECT TO THE PROFESSIONAL RESTRAINTS OF THIER
LAWYER BRETHREN, WERE PARTICULARLY RESPONSIBLE FOR THE DECEPTIVE
ADVERTISING AND VICTIMIZATION OF INVENTORS WHICH LONG PLAGUED THE
PATENT OFFICE.  (FN15) TO REMEDY THESE ABUSES, THE COMMISSIONER OF
PATENTS IN 1899 FIRST REQUIRED REGISTRATION OF PERSONS PRACTICING
BEFORE THE PATENT OFFICE (FN16) AND, IN 1918, REQUIRED PRACTITIONERS TO
OBTAIN HIS PRIOR APPROVAL OF ALL ADVERTISING MATERIAL WHICH THEY
DISTRIBUTED.  (FN17)  IT WAS TO REACH THESE SAME EVILS THAT SEC. 31 WAS
GIVEN MUCH ITS PRESENT FORM WHEN, IN 1922, THE STATUTE WAS AMENDED TO
EXPRESSLY AUTHORIZE THE COMMISSIONER TO PRESCRIBE REGULATIONS FOR THE
RECOGNITION OF AGENTS AND ATTORNEYS.  (FN18)    THIS MODIFICATION OF
THE STATUTE, FIRST PROPOSED IN 1912, WAS DESIGNED TO PROVIDE FOR THE
"CREATION OF A PATENT BAR" AND "TO REQUIRE A HIGHER STANDARD OF
QUALIFICATIONS FOR REGISTRY."  (FN19)  ALTHOUGH IT WAS BROUGHT TO THE
ATTENTION OF THE HOUSE COMMITTEE ON PATENTS THAT PRACTITIONERS INCLUDED
LAWYERS AND NONLAWYERS ALIKE, (FN20) IT WAS NEVER SUGGESTED THAT AGENTS
WOULD BE SUBJECT TO EXCLUSION.  IN FACT, ALTHOUGH THE COMMISSIONER OF
PATENTS HAD AT ONE TIME EXPRESSED THE VIEW THAT PATENT OFFICE ABUSES
COULD BE ELIMINATED ONLY BY RESTRICTING PRACTICE TO LAWYERS, (FN21) HIS
SUCCESSOR CONCLUDED THAT SUCH A LIMITATION WOULD BE UNWISE AND DURING
THE PENDENCY OF THIS LEGISLATION RECOMMENDED TO CONGRESS AGAINST SUCH A
LIMITATION: 

"IT HAS BEEN SUGGESTED MANY TIMES THAT THE PRIVILEGE OF PRACTISING
BEFORE THE OFFICE SHOULD BE GRANTED ONLY AFTER EXAMINATION SIMILAR TO
EXAMINATIONS HELD FOR ADMISSION TO THE BAR.  IT IS BELIEVED THAT THIS
REQUIREMENT WOULD BE TOO SEVERE, AS MANY PERSONS NOT SPECIALLY TRAINED
IN THE LAW AND WITHOUT ANY PARTICULAR EDUCATIONAL ADVANTAGES MAY BY
CAREFUL STUDY OF THE PRACTICE AND OF THE USEFUL ARTS LEARN ADEQUATELY
TO PROSECUTE APPLICATIONS.  FUNDAMENTALLY KNOWLEDGE OF THE INVENTION IS
MORE IMPORTANT THAN KNOWLEDGE OF THE RULES AND IS OFTEN POSSESSED BY
MEN OF A TYPE OF MIND WHICH DOES NOT ACQUIRE LEGAL KNOWLEDGE READILY." 
(FN22) 

MOREOVER, DURING THE CONSIDERATION IN 1916 OF ANOTHER BILL ENACTED TO
CURB ABUSIVE ADVERTISING BY PATENT PRACTITIONERS, BY PROHIBITING
PERSONS PRACTICING BEFORE GOVERNMENT AGENCIES FROM USING THE NAMES OF
GOVERNMENT OFFICIALS IN THEIR ADVERTISING LITERATURE, (FN23) THE SAME
POINT WAS MADE ON THE FLOOR OF THE HOUSE: 

"MR. OGLESBY.  I WILL SAY TO THE GENTLEMAN THAT A GOOD MANY MEN
APPEAR BEFORE THE PATENT OFFICE WHO ARE NOT ADMITTED ATTORNEYS.  THE
COMMISSIONER STATED AT THE HEARING THAT HE HAD CONSIDERED THE QUESTION
AS TO WHETHER OR NOT ANYONE EXCEPT A REGULARLY ADMITTED ATTORNEY AT LAW
SHOULD BE EXCLUDED FROM PRACTICING BEFORE THE PATENT OFFICE, BUT FOR
CERTAIN REASONS THOUGHT, PERHAPS, HE OUGHT NOT TO ESTABLISH SUCH A
RULE."  (FN24) 

DISCLOSURE THAT PERSONS WERE FALSELY HOLDING THEMSELVES OUT TO BE
REGISTERED PATENT PRACTITIONERS LED IN 1938 TO THE ENACTMENT OF
LEGISLATION MAKING SUCH MISREPRESENTATION A CRIMINAL OFFENSE.  (FN25)
THIS CORRECTIVE LEGISLATION WAS UNDER CONSIDERATION FOR OVER A DECADE
AND ORIGINALLY CONTAINED SEVERAL OTHER PROVISIONS, INCLUDING ONE WHICH
WOULD HAVE PROHIBITED ANY PERSON "DULY REGISTERED TO PRACTICE IN THE
PATENT OFFICE  ...  (FROM HOLDING) HIMSELF OUT AS A PATENT ATTORNEY,
PATENT LAWYER, PATENT SOLICITOR, OR PATENT COUNSELOR UNLESS HE IS
LEGALLY ADMITTED TO PRACTICE LAW IN THE STATE  ...  OR IN THE DISTRICT
OF COLUMBIA."  (FN26)  DURING THE EXTENDED CONSIDERATION GIVEN THE
MATTER IN BOTH HOUSES OF CONGRESS, THE DISTINCTION BETWEEN PATENT
LAWYERS, WHO HAD BEEN ADMITTED TO THE BAR, AND NONLAWYER AGENTS, WAS
REPEATEDLY BROUGHT OUT; (FN27) TIME AND AGAIN IT WAS MADE CLEAR THAT
THE ABOVE PROVISION WAS NOT INTENDED TO RESTRICT PRACTICE BY AGENTS,
BUT WAS DESIGNED ONLY TO PREVENT THEM FROM LABELING THEMSELVES "PATENT
ATTORNEYS," (FN28) AS THE PATENT OFFICE HAD THERETOFORE PERMITTED. 
(FN29)  THE PROPOSED BILLS WOULD NOT HAVE AFFECTED "ANY ENGINEERS OR
DRAFTSMEN FROM DOING THOSE THINGS WHICH THEY HAVE ALWAYS BEEN DOING
BEFORE THE PATENT OFFICE"; (FN30) THE BILLS SOUGHT "TO BRING ABOUT NO
CHANGE IN THE STATUS OF THE MANY MEN NOW REGISTERED AND ENTITLED TO
PRACTICE BEFORE THE PATENT OFFICE, REGARDLESS OF WHETHER THEY ARE
MEMBERS OF THE BAR OR NOT  ...  ."  (FN31)  "THERE ARE QUITE A NUMBER
OF SOLICITORS OF PATENTS WHO ARE HIGHLY QUALIFIED AND WHO ARE NOT
MEMBERS OF THE BAR, WHO NEVER GRADUATED AT LAW AND WERE NEVER ADMITTED
TO THE BAR.  BUT THIS BILL DOESN'T DISQUALIFY THOSE MEN.  THEY CAN
CONTINUE TO QUALIFY AS PATENT AGENTS."  (FN32)  WHEN ASKED "WHAT IS
GOING TO BE THE DIFFERENCE IN THE LEGAL PREROGATIVES OF THE AGENTS AND
THE OTHERS THAT COME IN," THE COMMISSIONER OF PATENTS RESPONDED THAT
"THEIR RIGHTS IN THE PATENT OFFICE WILL BE EXACTLY THE SAME.  THEIR
RIGHTS IN THE COURTS WILL BE DIFFERENT."  (FN33)  THE HOUSE DEBATES ON
THE BILL BEFORE CONGRESS IN 1930 REVEAL THE SAME UNDERSTANDING: 

"MR. STAFFORD.  ...  I WAS UNDER THE IMPRESSION THAT HEREAFTER A
PERSON IN ORDER TO PRACTICE BEFORE THE PATENT OFFICE MUST BE ADMITTED
TO PRACTICE BEFORE SOME BAR OF A STATE. 

"MR. LAGUARDIA.  THAT IS MY UNDERSTANDING. 

"MR. PERKINS.  I WILL CORRECT MYSELF.  HE MAY BE ADMITTED TO ACT AS A
PATENT AGENT, BUT AFTER THE PASSAGE OF THIS ACT NO ONE WHO IS NOT
ADMITTED TO THE BAR GENERALLY CAN HOLD HIMSELF OUT TO BE A PATENT
ATTORNEY, PATENT LAWYER, PATENT SOLICITOR, OR PATENT COUNSELOR. 

"MR. STAFFORD.  A PERSON WITHOUT BEING A MEMBER OF THE BAR MAY BE
REGISTERED AS A PATENT AGENT TO PRACTICE BEFORE THE COMMISSIONER OF
PATENTS? 

"MR. PERKINS.  HE MAY."  (FN34) 

HENCE, DURING THE PERIOD THE 1922 STATUTE WAS BEING CONSIDERED, AND
PRIOR TO ITS READOPTION IN 1952, (FN35) WE FIND STRONG AND UNCHALLENGED
IMPLICATIONS THAT REGISTERED AGENTS HAVE A RIGHT TO PRACTICE BEFORE THE
PATENT OFFICE.  THE REPEATED EFFORTS TO ASSURE CONGRESS THAT NO ATTEMPT
WAS BEING MADE TO LIMIT THIS RIGHT ARE NOT WITHOUT SIGNIFICANCE.  NOR
IS IT INSIGNIFICANT THAT WE FIND NO SUGGESTION THAT THE ABUSES BEING
PERPETRATED BY PATENT AGENTS COULD OR SHOULD BE CORRECTED BY THE
STATES.  TO THE CONTRARY, REFORM WAS EFFECTED BY THE PATENT OFFICE,
WHICH NOW REQUIRES ALL PRACTITIONERS TO PASS A RIGOROUS EXAMINATION, 37
CFR SEC. 1.341(C), STRICTLY REGULATES THEIR ADVERTISING, 37 CFR SEC.
1.345, AND DEMANDS THAT "ATTORNEYS AND AGENTS APPEARING BEFORE THE
PATENT OFFICE  ...  CONFORM TO THE STANDARDS OF ETHICAL AND
PROFESSIONAL CONDUCT GENERALLY APPLICABLE TO ATTORNEYS BEFORE THE
COURTS OF THE UNITED STATES."  37 CFR SEC. 1.344. 

MOREOVER, THE EXTENT TO WHICH SPECIALIZED LAY PRACTITIONERS SHOULD BE
ALLOWED TO PRACTICE BEFORE SOME 40-ODD FEDERAL ADMINISTRATIVE AGENCIES,
INCLUDING THE PATENT OFFICE, RECEIVED CONTINUING ATTENTION BOTH IN AND
OUT OF CONGRESS DURING THE PERIOD PRIOR TO 1952.  (FN36)  THE ATTORNEY
GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE WHICH, IN 1941, STUDIED
THE NEED FOR PROCEDURAL REFORM IN THE ADMINISTRATIVE AGENCIES, REPORTED
THAT "ESPECIALLY AMONG LAWYERS' ORGANIZATIONS THERE HAS BEEN MANIFEST A
SENTIMENT IN RECENT YEARS THAT ONLY MEMBERS OF THE BAR SHOULD BE
ADMITTED TO PRACTICE BEFORE ADMINISTRATIVE AGENCIES.  THE COMMITTEE
DOUBTS THAT A SWEEPING INTERDICTION OF NONLAWYER PRACTITIONERS WOULD BE
WISE  ...  ."  (FN37)  ULTIMATELY IT WAS PROVIDED IN SEC. 6(A) OF THE
ADMINISTRATIVE PROCEDURE ACT THAT "EVERY PARTY SHALL BE ACCORDED THE
RIGHT TO APPEAR IN PERSON OR BY OR WITH COUNSEL OR OTHER DULY QUALIFIED
REPRESENTATIVE IN ANY AGENCY PROCEEDING  ...  . NOTHING HEREIN SHALL BE
CONSTRUED EITHER TO GRANT OR TO DENY TO ANY PERSON WHO IS NOT A LAWYER
THE RIGHT TO APPEAR FOR OR REPRESENT OTHERS BEFORE ANY AGENCY OR IN ANY
AGENCY PROCEEDING."  60 STAT. 240, 5 U.S.C. SEC. 1005(A).  ALTHOUGH THE
ACT THUS DISAVOWS ANY INTENTION TO CHANGE THE EXISTING PRACTICE BEFORE
ANY OF THE AGENCIES, SO THAT THE RIGHT OF NONLAWYERS TO PRACTICE BEFORE
EACH AGENCY MUST BE DETERMINED BY REFERENCE TO THE STATUTE AND
REGULATIONS APPLICABLE TO THE PARTICULAR AGENCY, THE HISTORY OF SEC.
6(A) CONTAINS FURTHER RECOGNITION OF THE POWER OF AGENCIES TO ADMIT
NONLAWYERS, AND AGAIN WE SEE NO SUGGESTION THAT THIS POWER IS IN ANY
WAY CONDITIONED ON THE APPROVAL OF THE STATE.  THE CHAIRMAN OF THE
AMERICAN BAR ASSOCIATION'S COMMITTEE ON ADMINISTRATIVE LAW TESTIFIED
BEFORE THE HOUSE JUDICIARY COMMITTEE: 

"A GREAT DEAL OF COMPLAINT HAS BEEN RECEIVED FROM TWO SOURCES. 
NUMBER ONE IS THE LAY PRACTITIONERS BEFORE THE VARIOUS AGENCIES,
CHIEFLY THE INTERSTATE COMMERCE COMMISSION, WHO ARE AFRAID SOMETHING
MIGHT BE SAID THAT WOULD OUST THEM FROM PRACTICE.  ON THE OTHER HAND,
THERE IS A GREAT DEAL OF PROTEST FROM THE COMMITTEES ON UNAUTHORIZED
PRACTICE OF THE LAW IN VARIOUS STATE, LOCAL, AND MUNICIPAL BAR
ASSOCIATIONS WHO ARE JUST AS VEHEMENT IN SAYING THAT THESE MEASURES
FAIL TO RECOGNIZE THAT LEGAL PROCEDURE MUST BE CONFINED TO LAWYERS. 
BUT THESE BILLS DO NOT ELIMINATE THE LAY PRACTITIONER, IF THE
ADMINISTRATIVE AGENCY FEELS THEY HAVE A FUNCTION TO PERFORM AND DESIRES
TO ADMIT HIM TO PRACTICE."  (FN38) 

DESPITE THE CONCERN OF THE BAR ASSOCIATIONS, THE SENATE JUDICIARY
COMMITTEE REPORTED THAT "NONLAWYERS, IF PERMITTED BY THE AGENCY TO
PRACTICE BEFORE IT, ARE NOT EXCLUDED FROM REPRESENTING INTERESTED
PARTIES IN ADMINISTRATIVE MATTERS."  (FN39)  AND IN THE HOUSE DEBATES
ON THIS PROVISION WE FIND THE FOLLOWING INSTRUCTIVE PASSAGE: 

"MR. AUSTIN.  MR. PRESIDENT, BEFORE THE SENATOR LEAVES THAT THOUGHT,
I WISH TO ASK A QUESTION.  I NOTICE  ...  IN THE SECTION TO WHICH THE
SENATOR IS REFERRING, THIS LANGUAGE: 

"'NOTHING HEREIN SHALL BE CONSTRUED EITHER TO GRANT OR TO DENY TO ANY
PERSON WHO IS NOT A LAWYER THE RIGHT TO APPEAR FOR OR REPRESENT OTHERS
BEFORE ANY AGENCY OR IN ANY AGENCY PROCEEDING.' 

"IS IT NOT A FACT THAT SOMEWHERE IN THE BILL THE DISTINGUISHED
SENATOR HAS RESERVED THE RIGHT TO A NONPROFESSIONAL - THAT IS, A MAN
WHO IS NOT A LAWYER - TO APPEAR, IF THE AGENCY HAVING JURISDICTION
PERMITS IT?  THAT IS, THERE IS A DISCRETION PERMITTED, IS THERE NOT? 
FOR EXAMPLE, TAKE A CASE WHERE A SCIENTIFIC EXPERT WOULD BETTER
REPRESENT BEFORE THE COMMISSION THE INTERESTS INVOLVED THAN WOULD A
LAWYER.  THE RIGHT TO OBTAIN THAT PRIVILEGE IS GRANTED IN THE BILL
SOMEWHERE, IS IT NOT? 

"MR. MCCARRAN.  THE SENATOR IS CORRECT; AND IN CONNECTION WITH THAT I
WISH TO READ FROM THE ATTORNEY GENERAL'S COMMENT, AS FOLLOWS: 

"'THIS SUBSECTION DOES NOT DEAL WITH, OR IN ANY WAY QUALIFY, THE
PRESENT POWER OF AN AGENCY TO REGULATE PRACTICE AT ITS BAR.  IT
EXPRESSLY PROVIDES, MOREOVER, THAT NOTHING IN THE ACT SHALL BE
CONSTRUED EITHER TO GRANT OR TO DENY THE RIGHT OF NONLAWYERS TO APPEAR
BEFORE AGENCIES IN A REPRESENTATIVE CAPACITY.  CONTROL OVER THIS MATTER
REMAINS IN THE RESPECTIVE AGENCIES.' 

"THAT IS THE ATTORNEY GENERAL'S OBSERVATION."  (FN40) 

IT IS ALSO INSTRUCTIVE TO NOTE THAT SHORTLY AFTER THE ADOPTION OF THE
ADMINISTRATIVE PROCEDURE ACT, THE AMERICAN BAR ASSOCIATION PROPOSED THE
ADOPTION OF AN "ADMINISTRATIVE PRACTITIONERS ACT."  (FN41)  THOUGH
LIMITING THE POWERS OF NONATTORNEYS IN RESPECTS NOT HERE RELEVANT, THE
BILL DID PROVIDE THAT "AUTHORIZED PARTICIPATION IN AGENCY PROCEEDINGS"
WAS PERMISSIBLE, WITHOUT REGARD TO WHETHER THE CONDUCT CONSTITUTED THE
PRACTICE OF LAW IN THE STATE WHERE PERFORMED.  (FN42) 

INDICATIVE OF THIS SAME GENERAL UNDERSTANDING, WE NOTE THAT EVERY
STATE COURT CONSIDERING THE PROBLEM PRIOR TO 1952 AGREED THAT THE
AUTHORITY TO PARTICIPATE IN ADMINISTRATIVE PROCEEDINGS CONFERRED BY THE
PATENT OFFICE AND BY OTHER FEDERAL AGENCIES WAS EITHER CONSISTENT WITH
OR PREEMPTIVE OF STATE LAW.  (FN43) 

FINALLY, REGARD TO THE UNDERLYING CONSIDERATIONS RENDERS IT DIFFICULT
TO CONCLUDE THAT CONGRESS WOULD HAVE PERMITTED A STATE TO PROHIBIT
PATENT AGENTS FROM OPERATING WITHIN ITS BOUNDARIES HAD IT EXPRESSLY
DIRECTED ITS ATTENTION TO THE PROBLEM.  THE RIGHTS CONFERRED BY THE
ISSUANCE OF LETTERS PATENT ARE FEDERAL RIGHTS.  IT IS UPON CONGRESS
THAT THE CONSTITUTION HAS BESTOWED THE POWER "TO PROMOTE THE PROGRESS
OF SCIENCE AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO AUTHORS
AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS AND
DISCOVERIES," ART. I, SEC. 8, CL. 8, AND TO TAKE ALL STEPS NECESSARY
AND PROPER TO ACCOMPLISH THAT END, ART. I, SEC. 8, CL. 18, PURSUANT TO
WHICH THE PATENT OFFICE AND ITS SPECIALIZED BAR HAVE BEEN ESTABLISHED. 
THE GOVERNMENT, APPEARING AS AMICUS CURIAE, INFORMS THE COURT THAT OF
THE 7,544 PERSONS REGISTERED TO PRACTICE BEFORE THE PATENT OFFICE IN
NOVEMBER 1962, 1,801 WERE NOT LAWYERS AND 1,687 OTHERS WERE NOT LAWYERS
ADMITTED TO THE BAR OF THE STATE IN WHICH THEY WERE PRACTICING.  (FN44)
HENCE, UNDER THE RESPONDENT'S VIEW, ONE-QUARTER OF THE PRESENT
PRACTITIONERS WOULD BE SUBJECT TO DISQUALIFICATION OR TO RELOCATION IN
THE DISTRICT OF COLUMBIA AND ANOTHER ONE-FOURTH, UNLESS RECIPROCITY
PROVISIONS FOR ADMISSION TO THE BAR OF THE STATE IN WHICH THEY ARE
PRACTICING ARE AVAILABLE TO THEM, MIGHT BE FORCED TO RELOCATE, APPLY
FOR ADMISSION TO THE STATE'S BAR, OR DISCONTINUE PRACTICE.  THE
DISRUPTIVE EFFECT WHICH THIS COULD HAVE UPON PATENT OFFICE PROCEEDINGS
CANNOT BE IGNORED.  ON THE OTHER HAND, THE STATE IS PRIMARILY CONCERNED
WITH PROTECTING ITS CITIZENS FROM UNSKILLED AND UNETHICAL
PRACTITIONERS, (FN45) INTERESTS WHICH, AS WE HAVE SEEN, THE PATENT
OFFICE NOW SAFEGUARDS BY TESTING APPLICANTS FOR REGISTRATION, AND BY
INSISTING ON THE MAINTENANCE OF HIGH STANDARDS OF INTEGRITY.  FAILURE
TO COMPLY WITH THESE STANDARDS MAY RESULT IN SUSPENSION OR DISBARMENT. 
35 U.S.C. SEC. 32; 37 CFR SEC. 1.348.  SO SUCCESSFUL HAVE THE EFFORTS
OF THE PATENT OFFICE BEEN THAT THE OFFICE WAS ABLE TO INFORM THE HOOVER
COMMISSION THAT "THERE IS NO SIGNIFICANT DIFFERENCE BETWEEN LAWYERS AND
NONLAWYERS EITHER WITH RESPECT TO THEIR ABILITY TO HANDLE THE WORK OR
WITH RESPECT TO THEIR ETHICAL CONDUCT."  (FN46) 

MOREOVER, SINCE PATENT PRACTITIONERS ARE AUTHORIZED TO PRACTICE ONLY
BEFORE THE PATENT OFFICE, THE STATE MAINTAINS CONTROL OVER THE PRACTICE
OF LAW WITHIN ITS BORDERS EXCEPT TO THE LIMITED EXTENT NECESSARY FOR
THE ACCOMPLISHMENT OF THE FEDERAL OBJECTIVES.  (FN47)    WE HAVE NOT
OVERLOOKED RESPONDENT'S CONSTITUTIONAL ARGUMENTS, BUT FIND THEM
SINGULARLY WITHOUT MERIT.  WE HAVE ALREADY NOTED THE SOURCE OF
CONGRESS' POWER TO GRANT PATENT RIGHTS.  IT HAS NEVER BEEN DOUBTED THAT
THE ESTABLISHMENT OF THE PATENT OFFICE TO PROCESS PATENT APPLICATIONS
IS APPROPRIATE AND PLAINLY ADAPTED TO THE END OF SECURING TO INVENTORS
THE EXCLUSIVE RIGHT TO THEIR DISCOVERIES, NOR CAN IT PLAUSIBLY BE
SUGGESTED THAT BY TAKING STEPS TO AUTHORIZE COMPETENT PERSONS TO ASSIST
IN THE PREPARATION OF PATENT APPLICATIONS CONGRESS HAS EXCEEDED THE
BOUNDS OF WHAT IS NECESSARY AND PROPER TO THE ACCOMPLISHMENT OF THIS
SAME END.  CF. GOLDSMITH V. UNITED STATES BOARD OF TAX APPEALS, 270
U.S. 117; UNITED STATES V. DUELL, 172 U.S. 576.  CONGRESS HAVING ACTED
WITHIN THE SCOPE OF THE POWERS "DELEGATED TO THE UNITED STATES BY THE
CONSTITUTION," IT HAS NOT EXCEEDED THE LIMITS OF THE TENTH AMENDMENT
DESPITE THE CONCURRENT EFFECTS OF ITS LEGISLATION UPON A MATTER
OTHERWISE WITHIN THE CONTROL OF THE STATE.  "INTERFERENCE WITH THE
POWER OF THE STATES WAS NO CONSTITUTIONAL CRITERION OF THE POWER OF
CONGRESS.  IF THE POWER WAS NOT GIVEN, CONGRESS COULD NOT EXERCISE IT;
IF GIVEN, THEY MIGHT EXERCISE IT, ALTHOUGH IT SHOULD INTERFERE WITH THE
LAWS, OR EVEN THE CONSTITUTION OF THE STATES."  II ANNALS OF CONGRESS
1897 (REMARKS OF MADISON).  THE TENTH AMENDMENT "STATES BUT A TRUISM
THAT ALL IS RETAINED WHICH HAS NOT BEEN SURRENDERED."  UNITED STATES V.
DARBY, 312 U.S. 100, 124; CASE V. BOWLES, 327 U.S. 92, 102.  COMPARE
MILLER, INC., V. ARKANSAS, 352 U.S. 187.  THE AUTHORITY OF CONGRESS IS
NO LESS WHEN THE STATE POWER WHICH IT DISPLACES WOULD OTHERWISE HAVE
BEEN EXERCISED BY THE STATE JUDICIARY RATHER THAN BY THE STATE
LEGISLATURE.  CF. PENNSYLVANIA R. CO. V. PUBLIC SERVICE COMM'N, 250
U.S. 566.  FINALLY, SEC. 31 CONTAINS SUFFICIENT STANDARDS TO GUIDE THE
PATENT OFFICE IN ITS ADMISSIONS POLICY TO AVOID THE CRITICISM THAT
CONGRESS HAS IMPROPERLY DELEGATED ITS POWERS TO THE ADMINISTRATIVE
AGENCY.  FAHEY V. MALLONEE, 332 U.S. 245; CURRIN V. WALLACE, 306 U.S.
1, 16-18. 

IT FOLLOWS THAT THE ORDER ENJOINING PETITIONER MUST BE VACATED SINCE
IT PROHIBITS HIM FROM PERFORMING TASKS WHICH ARE INCIDENT TO THE
PREPARATION AND PROSECUTION OF PATENT APPLICATIONS BEFORE THE PATENT
OFFICE.  THE JUDGMENT BELOW IS VACATED AND THE CASE IS REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  PETITIONER'S RIGHT TO REFER TO HIMSELF AS A "PATENT ATTORNEY"
HAS BEEN MOOTED BY VOLUNTARY DISCONTINUANCE OF THE USE OF THE TERM
"ATTORNEY." 

FN2  SEE KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36, 40-41;
SCHWARE V. BOARD OF BAR EXAMINERS OF NEW MEXICO, 353 U.S. 232, 239;
WEST VIRGINIA STATE BAR V. EARLEY, 144 W.VA.  504, 109 S.E.2D 420;
GARDNER V. CONWAY, 234 MINN. 468, 48 N.W.2D 788. 

FN3  ACT OF JULY 19, 1952, C. 950, SEC. 1, 66 STAT. 795, 35 U.S.C.
SEC. 31: 

"THE COMMISSIONER, SUBJECT TO THE APPROVAL OF THE SECRETARY OF
COMMERCE, MAY PRESCRIBE REGULATIONS GOVERNING THE RECOGNITION AND
CONDUCT OF AGENTS, ATTORNEYS, OR OTHER PERSONS REPRESENTING APPLICANTS
OR OTHER PARTIES BEFORE THE PATENT OFFICE, AND MAY REQUIRE THEM, BEFORE
BEING RECOGNIZED AS REPRESENTATIVES OF APPLICANTS OR OTHER PERSONS, TO
SHOW THAT THEY ARE OF GOOD MORAL CHARACTER AND REPUTATION AND ARE
POSSESSED OF THE NECESSARY QUALIFICATIONS TO RENDER TO APPLICANTS OR
OTHER PERSONS VALUABLE SERVICE, ADVICE, AND ASSISTANCE IN THE
PRESENTATION OR PROSECUTION OF THEIR APPLICATIONS OR OTHER BUSINESS
BEFORE THE OFFICE." 

FN4  MILLER, INC., V. ARKANSAS, 352 U.S. 187, 190; FIRST IOWA HYDRO
ELECTRIC COOP.  V. FEDERAL POWER COMM'N, 328 U.S. 152; CF. CASTLE V.
HAYES FREIGHT LINES, INC., 348 U.S. 61; CLOVERLEAF BUTTER CO. V.
PATTERSON, 315 U.S. 148. 

FN5  RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218, 235-236; MORAN V.
NEW ORLEANS, 112 U.S. 69; SINNOT V. DAVENPORT, 22 HOW.  227; GIBBONS V.
OGDEN, 9 WHEAT.  1; HURON PORTLAND CEMENT CO. V. DETROIT, 362 U.S. 440,
449 (DISSENTING OPINION); CF. HILL V. FLORIDA, 325 U.S. 538. 

FN6  13 FED. REG. 9596. 

FN7  PROPOSED REVISION OF PATENT RULES SEC. 5.1, 611 O.G. PAT.  OFF.,
JUNE 29, 1948, SUPP. 8: 

"REGISTRATION OF ATTORNEYS AND AGENTS.  ...  REGISTRATION IN THE
PATENT OFFICE UNDER THE PROVISIONS OF THESE RULES SHALL NOT BE
CONSTRUED AS AUTHORIZING PERSONS NOT MEMBERS OF THE BAR TO PRACTICE LAW
OR TO PERFORM ANY ACTS REGARDED AS PRACTICING LAW IN THE JURISDICTION
WHERE PERFORMED." 

FN8  "I THINK I KNOW WHAT YOU MEAN TO SAY, BUT YOU HAVE NOT SAID WHAT
YOU MEAN TO SAY.  IF YOU STOPPED AT THE END OF THE FIRST CLAUSE THERE
AND SAID THAT IT DOES NOT AUTHORIZE THE PERSONS NOT MEMBERS OF THE BAR
TO PRACTICE LAW, YOU MIGHT BE CLOSER TO BEING RIGHT; BUT, AS YOU HAVE
WRITTEN IT HERE, YOU HAVE SAID THAT PATENT ATTORNEYS MAY NOT DO IN THE
STATES THINGS WHICH IT MAY BE NECESSARY FOR THEM TO DO IN ORDER TO
PROSECUTE THEIR CLAIMS BEFORE THE PATENT OFFICE. 

"IN OTHER WORDS, YOU ARE GIVING IT TO THE STATES TO SAY WHAT A PATENT
ATTORNEY MAY DO RATHER THAN LEAVING IT UP TO THE CONGRESS AND TO THE
LAWS OF THE UNITED STATES. 

"I MAY SUGGEST THAT WHAT PATENT ATTORNEYS DO BEFORE THE PATENT OFFICE
MIGHT BE CONSTRUED AS PRACTICING LAW, WERE IT NOT FOR THE FACT THAT
THEIR PARTICULAR CONDUCT IS PERMITTED BY THE ACTS OF CONGRESS AND UNDER
THE RULES OF THE PATENT OFFICE. 

"THE STATES CANNOT PASS LAWS DEROGATING FROM THE RIGHTS OF THE PATENT
ATTORNEYS AS CREATED BY CONGRESS AND EXISTING UNDER THE RULES OF THE
PATENT OFFICE.  I THINK THAT THE RULE, AS PROPOSED, MAKES IT POSSIBLE
FOR THE STATES, OR INDICATED THAT THE OFFICE THINKS THAT THE STATES
HAVE THE POWER TO CIRCUMSCRIBE AND LIMIT THE RIGHTS OF PATENT ATTORNEYS
WHO ARE NOT LAWYERS, WHICH RIGHTS ARE CREATED UNDER THE LAWS OF
CONGRESS, AND SUBJECT TO THE RULES OF THE PATENT OFFICE RATHER THAN TO
REGULATION BY THE INDIVIDUAL STATES. 

"I THINK YOU WOULD HAVE NO POWER TO PASS THIS PARTICULAR PART OF YOUR
PROPOSED RULE." 

REMARKS OF A.P. KANE, ATTORNEY, HEARING ON PROPOSED REVISION OF RULES
OF PRACTICE IN PATENT CASES, 281-282 (SEPT. 30, 1948).  SEE ALSO ID.,
AT PP. 319-330. 

FN9  ACT OF MARCH 2, 1861, C. 88, SEC. 8, 12 STAT. 247; SEE ALSO ACT
OF JULY 8, 1870, C. 230, SEC. 19, 16 STAT. 200, AS AMENDED, 66 STAT.
793, 35 U.S.C. SEC. 6. 

FN10  RULES AND DIRECTIONS FOR PROCEEDINGS IN THE PATENT OFFICE, SEC.
127 (AUG. 1, 1869). 

FN11  LETTER FROM EDWARD S. ROGERS, HEARINGS BEFORE HOUSE COMMITTEE
ON PATENTS ON H.R.  5527, 70TH CONG., 1ST SESS. 84 (1928); CF. HOOSIER
DRILL CO. V. INGELS, 15 O.G. PAT.  OFF.  1013; 2 ROBINSON, PATENTS,
SEC. 431. 

FN12  "PERSONAL ATTENDANCE OF THE APPLICANT AT THE PATENT OFFICE, TO
OBTAIN A PATENT, IS UNNECESSARY.  THE BUSINESS CAN BE DONE BY
CORRESPONDENCE, (FREE OF POSTAGE) OR BY POWER OF ATTORNEY." 
INFORMATION TO PERSONS HAVING BUSINESS TO TRANSACT AT THE PATENT
OFFICE, 8 (JULY 1836).  IN 1854, IT WAS FIRST PROVIDED THAT "ALL
BUSINESS WITH THE OFFICE SHOULD BE TRANSACTED IN WRITING ...  ."  RULES
AND DIRECTIONS FOR PROCEEDINGS IN THE PATENT OFFICE, SEC. 122 (FEB. 20,
1854).  COMPARE 37 CFR SEC. 1.2. 

FN13  ROSTER OF ATTORNEYS AND AGENTS REGISTERED TO PRACTICE BEFORE
THE U.S. PATENT OFFICE (1958); NAMES AND ADDRESSES OF ATTORNEYS
PRACTICING BEFORE THE U.S. PATENT OFFICE (1883); TESTIMONY OF T.E.
ROBERTSON, COMMISSIONER OF PATENTS, HEARINGS BEFORE HOUSE COMMITTEE ON
PATENTS ON H.R. 699, 71ST CONG., 2D SESS. 12.  COMMENCING IN 1848, THE
COMMISSIONER FOR MANY YEARS INFORMED INVENTORS THAT "IF THE SERVICES OF
PATENT AGENTS ARE DESIRED, ABLE AND COMPETENT PERSONS ENGAGED IN THAT
BUSINESS CAN BE FOUND AT THEIR OFFICES IN THIS CITY, AND IN OTHER
CITIES."  INFORMATION TO PERSONS HAVING BUSINESS TO TRANSACT AT THE
PATENT OFFICE, PATENT AGENTS OR ATTORNEYS (1848). 

FN14  SEE BERLE, INVENTIONS AND THEIR MANAGEMENT, 189-190; HOAR,
PATENT TACTICS AND LAW (3D ED.), 256-257; WOODLING, INVENTIONS AND
THEIR PROTECTION (2D ED.), 289-290, 333; RIVISE, PREPARATION AND
PROSECUTION OF PATENT APPLICATIONS, SEC. 42. 

FN15  SEE HEARINGS BEFORE HOUSE COMMITTEE ON PATENTS ON H.R. 5527,
70TH CONG., 1ST SESS.  16-18; 69 CONG. REC. 6580; SPENCER, THE UNITED
STATES PATENT LAW SYSTEM, 94-96.  BERLE, 184-186.  COMPARE H.R. REP.
NO. 1622, 68TH CONG., 2D SESS. 2-3; H.R. REP. NO. 364, 64TH CONG., 1ST
SESS. 2; INFORMATION TO PERSONS HAVING BUSINESS TO TRANSACT AT THE
PATENT OFFICE, PATENT AGENTS OR ATTORNEYS (1848). 

FN16  RULES OF PRACTICE IN THE UNITED STATES PATENT OFFICE, SEC. 17
(JULY 18, 1899).  COMPARE SEC. 17 IN THE EDITION OF JUNE 18, 1897. 

FN17  252 O.G. PAT.  OFF.  967.  COMPARE 37 CFR SEC. 1.345. 

FN18  ACT OF FEBRUARY 18, 1922, C. 58, SEC. 3, 42 STAT. 390.  COMPARE
ACT OF JULY 8, 1870, C. 230, SEC. 19, 16 STAT. 200, AS AMENDED, 35
U.S.C. SEC. 6, AND ACT OF JULY 4, 1884, C. 181, SEC. 5, 23 STAT. 101, 5
U.S.C. SEC. 493. 

FN19  LETTER FROM E.B. MOORE, COMMISSIONER OF PATENTS, HEARINGS
BEFORE HOUSE COMMITTEE ON PATENTS ON H.R. 23417, NO. 1, 62D CONG., 2D
SESS. 6-7.  SEE ALSO HEARINGS BEFORE HOUSE COMMITTEE ON PATENTS ON H.R.
210, 67TH CONG., 1ST SESS. 16; COMMISSIONER OF PATENTS, ANNUAL REPORT,
XII (1908). 

FN20  THE FOLLOWING COLLOQUY REGARDING AN IDENTICAL BILL INTRODUCED
THE SESSION BEFORE PASSAGE OCCURRED BETWEEN CONGRESSMAN HIMES AND THE
COMMISSIONER OF PATENTS: 

"MR. HIMES.  IT SEEMS TO ME THAT WE SHOULD KNOW JUST WHO THE MAN
PRACTICING BEFORE THE PATENT OFFICE HAPPENS TO BE.  MUST HE BE A MEMBER
OF THE BAR OR ARE THE REQUIREMENTS THE SAME FOR THE PATENT ATTORNEY WHO
SIMPLY GOES AND GETS A PATENT FOR HIS CLIENTS AS THE MAN THAT GOES AND
PRACTICES BEFORE THE PATENT OFFICE, BEFORE THE COMMISSIONER OF
PATENTS? 

"MR. ROBERTSON.  THE PATENT OFFICE CAN REGISTER ANYONE WHO SHOWS A
DEGREE OF PROFICIENCY NECESSARY TO WRITE SPECIFICATIONS, WHETHER OR NOT
HE IS A MEMBER OF THE BAR. 

"MR. HIMES.  HE MUST NOT BE A MEMBER OF THE BAR? 

"MR. ROBERTSON.  HE NEED NOT BE A MEMBER OF THE BAR.  THAT IS NOT AS
BAD AS IT SOUNDS.  SOME OF OUR BEST PRACTITIONERS ARE NOT MEMBERS OF
THE BAR.  THEY ARE THE OLDER LINE OF ATTORNEYS.  THERE ARE SOME VERY
FINE ONES WHO HAVE BEEN PRACTICING BEFORE THE PATENT OFFICE 30 OR 40
YEARS WHO ARE NOT MEMBERS OF THE BAR, BUT THEY ARE HONEST MEN, AND
THERE ARE SOME OF THE PRACTITIONERS WHO ARE MEMBERS OF THE BAR WHO ARE
NOT HONEST MEN.  SO IT IS A VERY DIFFICULT THING TO REACH."  HEARINGS
BEFORE HOUSE COMMITTEE ON PATENTS ON H.R. 210, 67TH CONG., 1ST SESS. 15
16. 

SEE ALSO HEARINGS BEFORE HOUSE COMMITTEE ON PATENTS ON H.R. 5011,
5012, 7010, 66TH CONG., 1ST SESS. 281. 

FN21  COMMISSIONER OF PATENTS, ANNUAL REPORT, VI (1893). 

FN22  COMMISSIONER OF PATENTS, ANNUAL REPORT, XIV (1915). 

FN23  ACT OF APRIL 27, 1916, C. 89, 39 STAT. 54. 

FN24  53 CONG. REC. 6313. 

FN25  ACT OF MAY 9, 1938, 52 STAT. 342; NOW 66 STAT. 796, 35 U.S.C.
SEC. 33. 

FN26  THIS WAS THE SO-CALLED "CRAMTON BILL,"  H.R. 699, 71ST CONG.,
2D SESS.; H.R. 5527, 70TH CONG., 1ST SESS.; H.R. 5811, 69TH CONG., 1ST
SESS.; H.R. 10735, 69TH CONG., 1ST SESS.; H.R. 5790, 68TH CONG., 1ST
SESS. 

FN27  E.G., 69 CONG. REC. 6580; HEARINGS BEFORE SENATE COMMITTEE ON
PATENTS ON H.R. 5527, 70TH CONG., 1ST SESS. 4-7, 51; HEARINGS BEFORE
HOUSE COMMITTEE ON PATENTS ON H.R. 699, 71ST CONG., 2D SESS. 34, 49. 

FN28  E.G., 69 CONG. REC. 6580; S. REP. NO. 628, 71ST CONG., 1ST
SESS. 4; HEARINGS BEFORE SENATE COMMITTEE ON PATENTS ON H.R. 5527, 70TH
CONG., 1ST SESS. 7, 59; HEARINGS BEFORE HOUSE COMMITTEE ON PATENTS ON
H.R. 5527, 70TH CONG., 1ST SESS. 14-25, 28-33, 56-76, 85-100; HEARINGS
BEFORE SENATE COMMITTEE ON PATENTS ON H.R. 699, 71ST CONG., 2D SESS. 3,
5, 10; HEARINGS BEFORE HOUSE COMMITTEE ON PATENTS ON H.R. 699, 71ST
CONG., 2D SESS. 2-5, 41. 

FN29  PRIOR TO 1938, THE PATENT OFFICE LISTED BOTH LAWYERS AND
NONLAWYERS ON A SINGLE REGISTER AND REFERRED TO BOTH AS PATENT
ATTORNEYS.  THE LEGISLATION WHICH WAS PROPOSED WOULD NOT HAVE
PROHIBITED NONLAWYERS PREVIOUSLY REGISTERED FROM CONTINUING TO USE THIS
APPELLATION.  E.G., H.R. REP. NO. 947, 70TH CONG., 1ST SESS. 4. 
ALTHOUGH THE SEVERAL BILLS CONTAINING THIS PROVISION FAILED TO GAIN
APPROVAL (THOUGH PASSING THE HOUSE REPEATEDLY), IN 1938, THE
COMMISSIONER, FOLLOWING SUGGESTIONS MADE TO HIM DURING THE COURSE OF
THE COMMITTEE HEARINGS, HEARINGS BEFORE HOUSE COMMITTEE ON PATENTS ON
H.R. 5811, 69TH CONG., 1ST SESS. 46; HEARINGS BEFORE HOUSE COMMITTEE ON
PATENTS ON H.R. 5527, 70TH CONG., 1ST SESS.  20, 26-27, ESTABLISHED
SEPARATE REGISTERS FOR LAWYERS AND FOR NONLAWYER AGENTS, 495 O.G. PAT. 
OFF.  715, AND HAS SINCE PROHIBITED AGENTS SO REGISTERED FROM
REPRESENTING THEMSELVES TO BE ATTORNEYS, SOLICITORS OR LAWYERS.  SEE 37
CFR SECS. 1.341, 1.345.  THE REGISTRATION OF THOSE AGENTS PREVIOUSLY
ENROLLED ON THE SINGLE REGISTER, OF WHOM PETITIONER IS ONE, WAS NOT
CHANGED. 

FN30  S. REP. NO. 1209, 70TH CONG., 1ST SESS. 1. 

FN31  H.R. REP. NO. 947, 70TH CONG., 1ST SESS. 4; S. REP. NO. 626,
71ST CONG., 2D SESS. 4; H.R. REP. NO. 728, 71ST CONG., 2D SESS. 3. 

FN32  STATEMENT OF E.W. BRADFORD, CHAIRMAN OF THE COMMITTEE ON ETHICS
OF THE AMERICAN PATENT LAW ASSOCIATION, HEARINGS BEFORE HOUSE COMMITTEE
ON PATENTS ON H.R. 699, 71ST CONG., 2D SESS. 61. 

FN33 HEARINGS BEFORE HOUSE COMMITTEE ON PATENTS ON H.R. 5527, 70TH
CONG., 1ST SESS. 15. 

FN34  72 CONG. REC. 5467. 

FN35  NO CHANGES OF SUBSTANCE WERE INTENDED BY THE 1952 REVISION.  S.
REP. NO. 1979, 82D CONG., 2D SESS. 4; H.R. REP. NO. 1923, 82D CONG., 2D
SESS. 6. 

FN36  SEE COMMITTEE ON ADMINISTRATIVE PRACTICE OF THE BAR ASSOCIATION
OF THE DISTRICT OF COLUMBIA, REPORT ON ADMISSION TO AND CONTROL OVER
PRACTICE BEFORE FEDERAL ADMINISTRATIVE AGENCIES (1938); SURVEY OF THE
LEGAL PROFESSION, STANDARDS OF ADMISSION FOR PRACTICE BEFORE FEDERAL
ADMINISTRATIVE AGENCIES (1953); HOUSE COMMITTEE ON GOVERNMENT
OPERATIONS, SURVEY AND STUDY OF ADMINISTRATIVE ORGANIZATION, PROCEDURE,
AND PRACTICE IN THE FEDERAL AGENCIES, 85TH CONG., 1ST SESS. (COMM.
PRINT); NOTE, PROPOSED RESTRICTION OF LAY PRACTICE BEFORE FEDERAL
ADMINISTRATIVE AGENCIES, 48 COL. L. REV. 120.    FN37  ATTORNEY
GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE, FINAL REPORT, 124
(1941).  COMPARE COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF
THE GOVERNMENT, REPORT TO THE CONGRESS ON LEGAL SERVICES AND PROCEDURE,
32-35, 40-44 (1955).    FN38  HEARINGS BEFORE HOUSE COMMITTEE ON THE
JUDICIARY ON FEDERAL ADMINISTRATIVE PROCEDURE, 79TH CONG., 1ST SESS.
(SERIAL NO. 19) 33-34, LEGISLATIVE HISTORY OF THE ADMINISTRATION
PROCEDURE ACT, S. DOC. NO. 248, 79TH CONG., 2D SESS. 79-80 (HEREINAFTER
REFERRED TO AS LEGISLATIVE HISTORY"). 

FN39  S. COMM. PRINT ON S. 7, 79TH CONG., 1ST SESS. 10 (JUNE 1945),
LEGISLATIVE HISTORY 26. 

FN40  92 CONG. REC. 2156, LEGISLATIVE HISTORY 316-317. 

FN41  H.R. 2657, 80TH CONG., 1ST SESS.  SEE CURRY, BILLS IN CONGRESS
SPONSORED BY AMERICAN BAR ASSOCIATION SEEK TO PREVENT NONLAWYERS FROM
PRACTICING BEFORE THE INTERSTATE COMMERCE COMMISSION, 14 I.C.C. PRACT. 
J. 491. 

FN42  "CREDENTIALS FOR AGENTS: 

"SEC. 6.  IF ANY AGENCY SHALL FIND IT NECESSARY IN THE PUBLIC
INTEREST AND IN THE INTEREST OF PARTIES TO AGENCY PROCEEDINGS BEFORE IT
TO AUTHORIZE PRACTICE BY INDIVIDUALS NOT SUBJECT TO SECTION 5 AND
PROVIDES BY GENERALLY APPLICABLE RULE THEREFORE IN ANY CASE IN WHICH
THE GOVERNING STATUTE DOES NOT PROVIDE ONLY FOR APPEARANCES IN PERSON
OR BY ATTORNEY OR COUNSEL, ANY SUCH INDIVIDUAL MAY BE ADMITTED
HEREUNDER TO PRACTICE AS AN AGENT BEFORE SUCH AGENCY EXCEPT IN
PROCEEDINGS PURSUANT TO SECTION 7 OR 8 OF THE ADMINISTRATIVE PROCEDURE
ACT OR IN CONNECTION WITH ANY FORM OF COMPULSORY PROCESS  ...  .  ON
APPLICATION, INDIVIDUALS SUBJECT TO THIS SECTION WHO HAVE BEEN
INDIVIDUALLY AUTHORIZED TO PRACTICE BEFORE ANY AGENCY, HAVE MAINTAINED
SUCH STANDING, ARE ACTIVELY ENGAGED IN PRACTICE SO PERMITTED, AND ARE
SO CERTIFIED BY THE AGENCY WITH A SPECIFICATION OF THE EXTENT TO WHICH
THEY HAVE BEEN SO QUALIFIED TO PRACTICE AND HAVE PRACTICED SHALL BE
GIVEN CREDENTIALS ENABLING THEM TO CONTINUE SUCH PRACTICE.  NO AGENCY,
AND NOTHING IN THIS ACT, SHALL BE DEEMED TO PERMIT ANY PERSON TO
PRACTICE LAW IN ANY PLACE OR RENDER SERVICE SAVE THE AUTHORIZED
PARTICIPATION IN AGENCY PROCEEDINGS BY HOLDERS OF CREDENTIALS; AND NO
PERSON SHALL HOLD HIMSELF OUT, IMPLIEDLY OR EXPRESSLY, AS OTHERWISE
AUTHORIZED HEREUNDER." 

FN43  CHICAGO BAR ASSN. V. KELLOGG, 338 ILL. APP. 618, 88 N.E.2D 519
(1949)(PATENT OFFICE); SHARP V. MIDA'S RESEARCH BUREAU, 45 N.Y.S.2D 690
(1943), AFF'D, 48 N.Y.S.2D 799 (1944)(PATENT OFFICE); SCHROEDER V.
WHEELER, 126 CAL. APP. 367, 14 P.2D 903 (1932) (PATENT OFFICE); PEOPLE
EX REL. COLORADO BAR ASSN. V. ERBAUGH, 42 COLO. 480, 94 P. 349
(1908)(PATENT OFFICE)(BY IMPLICATION); IN RE NEW YORK COUNTY LAWYERS
ASSN. (IN RE BERCU), 273 APP. DIV. 524, 534-535, 78 N.Y.S.2D 209, 218
(1948), AFF'D, 299 N.Y. 728, 87 N.E.2D 451 (1949) (TREASURY AND TAX
COURT) (BY IMPLICATION); AUERBACHER V. WOOD, 139 N.J. EQ.  599, 604, 53
A.2D 800, 803 (1947), AFF'D, 142 N.J. EQ. 484, 59 A.2D 863
(1948)(N.L.R.B.); DE PASS V. B. HARRIS WOOL CO., 346 MO. 1038, 144
S.W.2D 146 (1940)(I.C.C.); BLAIR V.  MOTOR CARRIERS SERVICE BUREAU,
INC., 40 PA. D.&C. 413, 426 (1939)(I.C.C.); BENNETT V. GOLDSMITH, 280
N.Y. 529, 19 N.E.2D 927 (1939)(IMMIGRATION DEPARTMENT); PUBLIC SERVICE
TRAFFIC BUREAU, INC., V. HAWORTH MARBLE CO., 40 OHIO APP. 255, 178 N.E.
703 (1931) (I.C.C.)(DICTUM); IN RE GIBBS, 35 ARIZ. 346, 355, 278 P. 371
374 (1929)(LAND OFFICE) (DICTUM); MULLIGAN V. SMITH, 32 COLO. 404, 76
P. 1063 (1904)(LAND OFFICE); SEE ALSO IN RE LYON, 301 MASS. 30, 16
N.E.2D 74 (1938)(BANKRUPTCY); BROOKS V. MANDEL-WITTE, CO., 54 F.2D 992
(C.A.2D CIR.), CERT. DENIED, 286 U.S. 559 (1932)(CUSTOMS COURT). 
COMPARE LOWELL BAR ASSN. V. LOEB, 315 MASS. 176, 184-185, 52 N.E.2D 27,
33-34 (1943)(TREASURY AND TAX COURT). 

NORMALLY, THE STATE COURTS HAVE DEEMED THE AUTHORITY GRANTED BY THE
FEDERAL AGENCY TO BE CLOSELY CIRCUMSCRIBED.  E.G., CHICAGO BAR ASSN. V.
KELLOGG, SUPRA; IN RE LYON, SUPRA; PUBLIC SERVICE TRAFFIC BUREAU, INC.,
V. HAWORTH MARBLE CO., SUPRA. 

IN RECENT YEARS DIVERGENCE IN OPINION HAS DEVELOPED.  COMPARE
BATTELLE MEMORIAL INST.  V. GREEN, 133 U.S.P.Q. 49 (OHIO CT. APP.
1962)(PATENT OFFICE), AND NOBLE V. HUNT, 95 GA. APP. 804, 99 S.E.2D 345
(1957)(TREASURY AND TAX COURT), WITH AGRAN V. SHAPIRO, 127 CAL. APP. 2D
SUPP. 807, 273 P.2D 619 (APP. DEPT. SUPER.  CT., 1954)(TREASURY);
WISCONSIN V. KELLER, 16 WIS. 2D 377, 114 N.W.2D 796, NOW PENDING ON
CERTIORARI AS NO. 429, 1962 TERM (I.C.C.); PETITION OF KEARNEY, 63 SO.
2D 630 (FLA. 1953)(TREASURY AND TAX COURT); CF. MARSHALL V. NEW
INVENTOR'S CLUB, INC., 69 O.L. ABS.  578, 117 N.E.2D 737 (C.P. 1953)
(PATENT OFFICE). 

STATE COURTS HAVE FREQUENTLY HELD PRACTICE BEOFRE STATE
ADMINISTRATIVE AGENCIES BY NONLAWYERS TO CONSTITUTE THE UNAUTHORIZED
PRACTICE OF LAW.  E.G., PEOPLE EX REL. CHICAGO BAR ASSN. V. GOODMAN,
366 ILL. 346, 8 N.E.2D 941, 111 A.L.R. 1, CERT. DENIED, 302 U.S. 728;
CLARK V. AUSTIN, 340 MO. 467, 101 S.W.2D 977.  BUT COMPARE STATE EX
REL. REYNOLDS V. DINGER, 14 WIS. 2D 193, 109 N.W.2D 685; REALTY
APPRAISALS CO. V. ASTOR-BROADWAY HOLDING CORP., 5 APP. DIV. 2D 36, 169
N.Y.S.2D 121. 

FN44  OF THE 73 PATENT PRACTITIONERS IN FLORIDA, 62 ARE NOT MEMBERS
OF THE FLORIDA BAR. 

FN45  HEXTER TITLE & ABSTRACT CO. V. GRIEVANCE COMMITTEE, 142 TEX.
506, 509, 179 S.W.2D 946, 948; LOWELL BAR ASSN. V. LOEB, 315 MASS. 176,
180, 52 N.E.2D 27, 31.  COMMISSION ON ORGANIZATION OF THE EXECUTIVE
BRANCH OF THE GOVERNMENT, REPORT OF THE TASK FORCE ON LEGAL SERVICES
AND PROCEDURE, PART VI, APPENDICES AND CHARTS, 169 (1955). 

FN46  ID., 158.  THE PATENT OFFICE NOTED THE QUALIFICATION THAT
NONLAWYERS ARE ABLE TO ADVERTISE.  COMPARE HEARINGS BEFORE HOUSE
COMMITTEE ON PATENTS ON H.R. 5527, 70TH CONG., 1ST SESS. 16-19, 71-72,
89, 90. 

FN47  BECAUSE OF THE BREADTH OF THE INJUNCTION ISSUED IN THIS CASE,
WE ARE NOT CALLED UPON TO DETERMINE WHAT FUNCTIONS ARE REASONABLY
WITHIN THE SCOPE OF THE PRACTICE AUTHORIZED BY THE PATENT OFFICE.  THE
COMMISSIONER HAS ISSUED NO REGULATIONS TOUCHING UPON THIS POINT.  WE
NOTE, HOWEVER, THAT A PRACTITIONER AUTHORIZED TO PREPARE PATENT
APPLICATIONS MUST OF COURSE RENDER OPINIONS AS TO THE PATENTABILITY OF
THE INVENTIONS BROUGHT TO HIM, AND THAT IT IS ENTIRELY REASONABLE FOR A
PRACTITIONER TO HOLD HIMSELF OUT AS QUALIFIED TO PERFORM HIS
SPECIALIZED WORK, SO LONG AS HE DOES NOT MISREPRESENT THE SCOPE OF HIS
LICENSE. 
..END :










UNITED STATES V. BRAVERMAN 373 U.S. 405 


NO. 506.  ARGUED APRIL 22, 1963.  - DECIDED MAY 27, 1963.  - REVERSED
AND REMANDED. 


AN INDICTMENT UNDER SEC. 1 OF THE ELKINS ACT STATES AN OFFENSE WHEN IT
CHARGES THAT A PERSON HAS SOLICITED A REBATE FROM A COMMON CARRIER
RESPECTING THE TRANSPORTATION IN INTERSTATE COMMERCE OF A SHIPPER'S
PROPERTY, EVEN THOUGH IT IS NOT ALLEGED THAT THE REBATE WAS FOR THE
BENEFIT OF THE SHIPPER.  PP. 405-409. 

UNITED STATES V. BRAVERMAN. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APPELLEE, JERRY BRAVERMAN, WAS TRANSPORTATION MANAGER OF THE BURBANK,
CALIFORNIA, DISTRIBUTION OFFICE OF THE ANDREW JERGENS COMPANY, WHICH
SHIPS GOODS IN INTERSTATE COMMERCE.  IN JUNE 1962 HE WAS INDICTED IN A
UNITED STATES DISTRICT COURT AND CHARGED WITH HAVING VIOLATED SEC. 1 OF
THE ELKINS ACT (FN1) BY HAVING KNOWINGLY SOLICITED FROM A FREIGHT
FORWARDER CONCESSIONS AND REBATES RESPECTING INTERSTATE MOTOR CARRIER
SHIPMENTS OF JERGENS' GOODS SO THAT, HAD THE REBATES BEEN GRANTED,
GOODS WOULD HAVE BEEN SHIPPED AT A LOWER RATE THAN THAT NAMED IN THE
APPLICABLE TARIFFS FILED WITH THE INTERSTATE COMMERCE COMMISSION.  THE
INDICTMENT DID NOT ALLEGE, AND ALL PARTIES AGREED THAT THE GOVERNMENT
DID NOT INTEND TO PROVE, THAT THE REBATE WOULD HAVE BEEN FOR THE
BENEFIT OF THE SHIPPER.  THE DISTRICT JUDGE, BELIEVING THAT THE ACT
APPLIES ONLY WHERE SOME "ADVANTAGE OR DISCRIMINATION IS PRACTICED IN
FAVOR OF THE SHIPPPER," RULED THAT THE INDICTMENT DID NOT CHARGE AN
OFFENSE UNDER THE STATUTE AND THEREFORE MUST BE DISMISSED.  THE CASE IS
PROPERLY HERE ON APPEAL UNDER 18 U.S.C. SEC. 3731. 

WE HAVE CONCLUDED THAT THE ELKINS ACT OUTLAWS SOLICITATIONS OF
REBATES BY ANY PERSON WHATEVER, NO MATTER FOR WHOSE BENEFIT THE REBATE
IS SOUGHT, AND THAT THEREFORE THE DISTRICT COURT ERRED IN DISMISSING
THE INDICTMENT.  SECTION 1 AIMS IN UNMISTAKABLE LANGUAGE AT PRESERVING
PUBLISHED TARIFFS INVIOLATE.  THAT SECTION, FIRST, MAKES IT A
MISDEMEANOR FOR A CARRIER TO FAIL "STRICTLY TO OBSERVE" PUBLISHED
TARRIFS AND, SECOND, GOES RIGHT ON TO MAKE IT UNLAWFUL "FOR ANY PERSON,
PERSONS, OR CORPORATIONS TO OFFER, GRANT, OR GIVE, OR TO SOLICIT,
ACCEPT, OR RECEIVE ANY REBATE, CONCESSION, OR DISCRIMINATION" AS TO
INTERSTATE SHIPMENTS OF PROPERTY "WHEREBY ANY SUCH PROPERTY SHALL BY
ANY DEVICE WHATEVER BE TRANSPORTED AT A LESS RATE THAN THAT NAMED IN
THE TARIFFS PUBLISHED AND FILED BY SUCH CARRIER  ...  ."  MORE
UNEQUIVOCAL LANGUAGE WOULD BE HARD TO IMAGINE.  IT STRIKES AT ANY AND
EVERY KIND OF REBATE, NO MATTER BY WHOM OR TO WHOM GIVEN.  NOWHERE DOES
THE SECTION SAY OR IMPLY THAT REBATES ARE UNLAWFUL ONLY IF THEY ARE
GIVEN TO OR ARE FOR THE BENEFIT OF A SHIPPER.  IT IS A REBATE, TO
WHOMEVER GIVEN, WHICH THE STATUTORY LANGUAGE PROSCRIBES. 

THE LEGISLATIVE HISTORY OF THE ELKINS ACT BEARS OUT THE CONCLUSION
THAT CONGRESS INTENDED TO PREVENT ANY KIND OF DEPARTURE FROM THE
PUBLISHED RATES AND TO THAT END OUTLAWED ALL REBATES, WITHOUT REQUIRING
A SHOWING OF BENEFIT TO ANY SHIPPER.  THE ORIGINAL INTERSTATE COMMERCE
ACT, (FN2) PASSED IN 1887, MADE IT UNLAWFUL FOR ANY CARRIER TO CHARGE
EITHER MORE OR LESS THAN THE RATE SPECIFIED IN ITS PUBLISHED SCHEDULE
OF RATES.  (FN3)  BUT THE INTERSTATE COMMERCE COMMISSION, AFTER A
DECADE OF EXPERIENCE WITH THE ACT, RECOUNTED IN ITS ANNUAL REPORTS TO
CONGRESS BETWEEN 1897 AND 1902 THE SECRECY WITH WHICH REBATES WERE
CLOAKED, THE IMPOSSIBILITY OF ENFORCING TARIFFS WHEN THE GOVERNMENT HAD
TO PROVE NOT ONLY A DEPARTURE BUT ALSO A BENEFIT TO ONE SHIPPER NOT
RECEIVED BY ANOTHER, AND THE PRESSING NEED TO INVOKE PENALTIES SIMPLY
UPON SHOWING A DEPARTURE FROM A PUBLISHED RATE.  (FN4) 

THESE URGINGS LED TO THE PASSAGE OF THE ELKINS ACT.  A COMMITTEE OF
THE HOUSE OF REPRESENTATIVES, IN HEARINGS ON SEVERAL BILLS PROPOSING
AMENDMENTS TO THE INTERSTATE COMMERCE ACT, WAS TOLD BY THE CHAIRMAN OF
THE INTERSTATE COMMERCE COMMISSION THAT THE EXISTING LAW WAS "IN SOME
IMPORTANT RESPECTS  ...  PRACTICALLY UNWORKABLE."  IN PARTICULAR, HE
REPORTED THE VIRTUAL IMPOSSIBILITY OF SHOWING THAT A REBATE HAD
RESULTED IN AN "ACTUAL DISCRIMINATION" AMONG SHIPPERS AND AGREED WITH A
MEMBER OF THE COMMITTEE THAT "ANY DEPARTURE" FROM THE PUBLISHED RATES
SHOULD BE MADE AN OFFENSE.  (FN5)  IN ITS FAVORABLE REPORT ON THE BILL
WHICH BECAME THE ELKINS ACT, THE COMMITTEE OBSERVED THAT IT WAS
"PRACTICALLY IMPOSSIBLE TO SHOW THE DISCRIMINATION" AND RECOMMENDED
PASSAGE OF ITS PROPOSAL MAKING IT "A PENAL OFFENSE TO MAKE ANY
DEPARTURE FROM THE PUBLISHED RATES WHETHER THERE BE A DISCRIMINATION OR
NOT."  (FN6) 

THIS COURT HAS ALREADY HELD THAT THE SANCTIONS OF THE ACT ARE NOT
RESTRICTED TO CARRIERS OR SHIPPERS AND THAT "ANY PERSON" AS USED IN
SEC. 1 MEANS "ANY PERSON."  (FN7)  IT WAS THERE RECOGNIZED THAT, IN
ORDER TO ENSURE CARRIER EFFICIENCY, RATES MUST BE MAINTAINED UNIMPAIRED
AND THAT THE ELKINS ACT NO MORE INTENDED TO ALLOW THIRD PERSONS TO
TAMPER WITH THE STATUTORY SCHEME THAN IT INTENDED TO ALLOW CARRIERS AND
SHIPPERS THEMSELVES TO DO SO.  AND IN AN ANALOGOUS SITUATION, THIS
COURT HAS HELD THAT RAILROAD EMPLOYEES WHO CHARGE PASSENGERS MORE THAN
THE ESTABLISHED RATES ARE PUNISHABLE UNDER THE INTERSTATE COMMERCE ACT
EVEN THOUGH THEY ACTED FOR THEIR OWN GAIN AND EVEN THOUGH THE RAILROAD
WAS NOT A PARTY TO THEIR CONDUCT.  (FN8) 

WE HAVE CONSIDERED THE STATUTE BEFORE US IN LIGHT OF THE SALUTARY
RULE THAT CRIMINAL STATUTES SHOULD NOT BY INTERPRETATION BE EXPANDED
BEYOND THEIR PLAIN LANGUAGE.  (FN9)  BUT NEITHER CAN WE INTERPRET A
STATUTE SO NARROWLY AS TO DEFEAT ITS OBVIOUS INTENT.  (FN10)  CONGRESS,
THE COMMISSION, AND THE PUBLIC WERE CONCERNED TO MAKE CERTAIN THAT,
ONCE A TARIFF HAD BEEN PUBLISHED, NO DEVIATIONS WHATEVER FROM THAT
TARIFF WOULD TAKE PLACE.  NOWHERE CAN WE FIND SUPPORT FOR THE
SUGGESTION THAT SOME DEPARTURES WERE TO BE CHECKED WHILE OTHERS WERE TO
BE ALLOWED.  WE WOULD IGNORE THE EXPRESS LANGUAGE OF THE ELKINS ACT,
THE ECONOMIC ILLS WHICH GAVE RISE TO ITS PASSAGE, THE OBJECTS WHICH THE
FRAMERS OF THE STATUTE HAD IN MIND, AND THE SUBSEQUENT JUDICIAL
ENFORCEMENT OF THE ACT IF WE LIMITED ITS OPERATION TO ONLY SOME KINDS
OF REBATES OR TO ONLY SOME PEOPLE.  CONGRESS WANTED RATES TO BE
PUBLISHED AND HONORED.  IT WANTED REBATES STOPPED.  IT USED FITTING
LANGUAGE TO ACCOMPLISH THAT END.   WE HOLD THAT AN INDICTMENT UNDER
SEC. 1 OF THE ELKINS ACT STATES AN OFFENSE WHEN IT CHARGES THAT A
PERSON HAS SOLICITED A REBATE FROM A COMMON CARRIER RESPECTING THE
TRANSPORTATION IN INTERSTATE COMMERCE OF A SHIPPER'S PROPERTY, EVEN
THOUGH IT IS NOT ALLEGED THAT THE REBATE WAS FOR THE BENEFIT OF THE
SHIPPER.  REVERSED AND REMANDED. 

FN1  49 U.S.C. SEC. 41(1). 

FN2  24 STAT. 379. 

FN3  24 STAT. 381. 

FN4  ANNUAL REPORTS, INTERSTATE COMMERCE COMMISSION, DEC. 6, 1897,
PP. 46-48, DEC. 24, 1900, P. 10, JAN. 17, 1902, P. 8. 

FN5  HEARINGS ON H.R. 146, 273, 2040, 5775, 8337, AND 10930 BEFORE
THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE 197-199 (1902). 

FN6  H.R. REP. NO. 3765, 57TH CONG., 2D SESS. 5 (1903).  THE BILL
PASSED THE HOUSE BY A VOTE OF 250 TO 6, 36 CONG. REC. 2159 (1903),
HAVING ALREADY PASSED THE SENATE, 36 CONG.  REC. 1633-1634 (1903). 

FN7  UNION PAC. R. CO. V. UNITED STATES, 313 U.S. 450, 463 (1941). 
THE LOWER COURTS SOON AFTER THE PASSAGE OF THE ELKINS ACT REJECTED THE
ARGUMENT THAT THE ACT REACHED ONLY THE CARRIER AND THE SHIPPER AND HELD
THAT IT WAS IMMATERIAL THAT REBATES WERE PAID TO SOMEONE OTHER THAN THE
SHIPPER.  E.G., UNITED STATES V. MILWAUKEE REFRIGERATOR TRANSIT CO.,
145 F. 1007, 1012 (C.C.E.D. WIS. 1906); UNITED STATES V. DELAWARE,
L.&W.R. CO., 152 F. 269, 273 (C.C.S.D.N.Y. 1907). 

FN8  HOWITT V. UNITED STATES, 328 U.S. 189 (1946). 

FN9  SEE UNITED STATES V. RESNICK, 299 U.S. 207, 209-210 (1936). 

FN10  SEE UNITED STATES V. RAYNOR, 302 U.S. 540, 552 (1938). 
..END :

















REED V. THE YAKA 373 U.S. 410 


NO. 509.  ARGUED APRIL 22, 1963.  - DECIDED MAY 27, 1963.  - 307 F.2D
203, REVERSED. 


PETITIONER, A LONGSHOREMAN, FILED A LIBEL IN REM IN A FEDERAL DISTRICT
COURT AGAINST A SHIP FOR INJURIES SUSTAINED WHILE ENGAGED IN LOADING
THE SHIP AS AN EMPLOYEE OF A CORPORATION WHICH WAS OPERATING IT UNDER A
BAREBOAT CHARTER.  THE DISTRICT JUDGE FOUND THAT, AT THE TIME OF THE
INJURY, PETITIONER WAS ABOARD THE SHIP, STANDING ON A STACK OF WOODEN
PALLETS USED IN LOADING THE SHIP, AND THAT THE SOLE CAUSE OF THE INJURY
WAS A LATENT DEFECT IN ONE OF THE PLANKS OF A PALLET, WHICH CAUSED IT
TO BREAK.  HE HELD THAT THE DEFECTIVE PALLET SUPPLIED BY THE CHARTERING
CORPORATION RENDERED THE SHIP UNSEAWORTHY AND THAT, THEREFORE,
PETITIONER COULD RECOVER AGAINST THE SHIP.  THE CORPORATION CONTENDED
THAT IT COULD NOT BE HELD LIABLE IN DAMAGES TO PETITIONER, BECAUSE IT
WAS PETITIONER'S EMPLOYER, AND THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT PROVIDES THAT COMPENSATION LIABILITY OF AN EMPLOYER
UNDER THAT ACT IS EXCLUSIVE AND IN PLACE OF ANY OTHER LIABILITY ON HIS
PART.  HELD:  PETITIONER WAS NOT BARRED BY THAT ACT FROM RELYING ON THE
CORPORATION'S LIABILITY AS A SHIPOWNER PRO HAC VICE FOR THE SHIP'S
UNSEAWORTHINESS IN ORDER TO SUPPORT HIS LIBEL IN REM AGAINST THE SHIP. 
PP. 410-416. 

REED V. THE YAKA ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A LONGSHOREMAN, FILED A LIBEL IN REM IN A UNITED STATES
DISTRICT COURT AGAINST THE STEAMSHIP YAKA TO RECOVER FOR INJURIES HE
SUSTAINED WHILE ENGAGED IN LOADING THE VESSEL.  THE YAKA'S OWNER,
WATERMAN STEAMSHIP CORPORATION, APPEARED AS CLAIMANT OF THE SHIP BUT
BROUGHT IN AS AN ADDITIONAL DEFENDANT PETITIONER'S EMPLOYER, PAN
ATLANTIC STEAMSHIP CORPORATION, WHICH AT THE TIME OF THE ACCIDENT WAS
OPERATING WATERMAN'S SHIP UNDER A BAREBOAT CHARTER AND WHOSE NEGLIGENCE
WATERMAN ALLEGED CAUSED PETITIONER'S INJURY.  THE DISTRICT JUDGE FOUND
THAT AT THE TIME OF THE INJURY PETITIONER WAS IN THE SHIP STANDING ON A
STACK OF RECTANGULAR, WOODEN PALLETS USED IN LOADING THE VESSEL AND
THAT THE SOLE CAUSE OF THE INJURY WAS A LATENT DEFECT IN ONE OF THE
PLANKS OF A PALLET, WHICH CAUSED IT TO BREAK.  THE JUDGE HELD THAT THE
DEFECTIVE PALLET SUPPLIED BY PAN-ATLANTIC RENDERED WATERMAN'S YAKA
UNSEAWORTHY AND THAT THEREFORE PETITIONER COULD RECOVER AGAINST THE
SHIP.  BUT SINCE THE DEFECTIVE PALLET WAS FURNISHED BY PAN-ATLANTIC,
THE TRIAL JUDGE WENT ON TO HOLD THAT IT MUST MAKE WATERMAN WHOLE
BECAUSE OF AN INDEMNITY CLAUSE IN THE BAREBOAT CHARTER AGREEMENT.  183
F. SUPP. 69.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT REVERSED THE
JUDGMENT, HOLDING THAT NEITHER WATERMAN NOR PAN-ATLANTIC COULD BE HELD
PERSONALLY LIABLE FOR THE UNSEAWORTHINESS AND THAT A LIBEL IN REM
AGAINST A SHIP COULD NOT BE SUSTAINED UNLESS THERE WAS AN UNDERLYING
PERSONAL LIABILITY TO SUPPORT THE IN REM ACTION.  307 F.2D 203.  HAVING
PREVIOUSLY RESERVED IN GUZMAN V. PICHIRILO, 369 U.S. 698, 700 N. 3
(1962), THE QUESTION OF WHETHER PERSONAL LIABILITY IS ESSENTIAL TO THE
LIABILITY OF A SHIP, WE GRANTED CERTIORARI.  371 U.S. 938. 

IN DETERMINING THAT THERE WAS NO UNDERLYING PERSONAL LIABILITY FOR
THE UNSEAWORTHINESS OF THE VESSEL, THE COURT OF APPEALS HELD THAT (1)
WATERMAN, THE ACTUAL OWNER, COULD NOT BE MADE TO RESPOND IN DAMAGES
BECAUSE THE UNSEAWORTHINESS OF ITS SHIP AROSE AFTER IT HAD BEEN DEMISED
UNDER BAREBOAT CHARTER TO PAN-ATLANTIC, (FN1) AND (2) PAN-ATLANTIC
COULD NOT HAVE BEEN HELD PERSONALLY LIABLE IN DAMAGES TO PETITIONER FOR
THE UNSEAWORTHINESS BECAUSE PAN-ATLANTIC WAS PETITIONER'S EMPLOYER
UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, (FN2)
AND, WHILE THAT ACT PERMITS ACTIONS FOR DAMAGES AGAINST THIRD PERSONS,
(FN3) IT PROVIDES THAT COMPENSATION LIABILITY OF AN EMPLOYER UNDER THE
ACT IS EXCLUSIVE AND IN PLACE OF ALL OTHER LIABILITY ON HIS PART. 
(FN4) 

WE FIND IT UNNECESSARY TO DECIDE WHETHER A SHIP MAY EVER BE HELD
LIABLE FOR ITS UNSEAWORTHINESS WHERE NO PERSONAL LIABILITY COULD BE
ASSERTED BECAUSE, IN OUR VIEW, THE COURT OF APPEALS ERRED IN HOLDING
THAT PAN-ATLANTIC COULD NOT BE HELD PERSONALLY LIABLE FOR THE
UNSEAWORTHINESS OF THE SHIP WHICH CAUSED PETITIONER'S INJURY. 

PAN-ATLANTIC WAS OPERATING THE YAKA AS DEMISEE OR BAREBOAT CHARTERER
FROM WATERMAN.  UNDER SUCH ARRANGEMENTS FULL POSSESSION AND CONTROL OF
THE VESSEL ARE DELIVERED UP TO THE CHARTERER FOR A PERIOD OF TIME. 
(FN5)  THE SHIP IS THEN DIRECTED BY ITS MASTER AND MANNED BY HIS CREW;
IT MAKES HIS VOYAGES AND CARRIES THE CARGO HE CHOOSES.  SERVICES
PERFORMED ON BOARD THE SHIP ARE PRIMARILY FOR HIS BENEFIT.  IT HAS LONG
BEEN RECOGNIZED IN THE LAW OF ADMIRALTY THAT FOR MANY, IF NOT MOST,
PURPOSES THE BAREBOAT CHARTERER IS TO BE TREATED AS THE OWNER, (FN6)
GENERALLY CALLED OWNER PRO HAC VICE.  WE HAVE NO DOUBT, AND INDEED PAN
ATLANTIC ADMITS, (FN7) THAT, BARRING EXPLICIT STATUTORY EXEMPTION, THE
BAREBOAT CHARTERER IS PERSONALLY LIABLE FOR THE UNSEAWORTHINESS OF A
CHARTERED VESSEL, (FN8) AND THAT THIS LIABILITY WILL SUPPORT A LIBEL IN
REM AGAINST THE VESSEL.  (FN9)  SINCE THE UNSEAWORTHINESS OF THE YAKA
IS NO LONGER IN DISPUTE, THE ONLY QUESTION IS WHETHER THE
LONGSHOREMEN'S ACT PREVENTS RECOVERY BY PETITIONER FOR PAN-ATLANTIC'S
BREACH OF ITS WARRANTY OF SEAWORTHINESS. 

IN SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85 (1946), WE HELD THAT A
SHIPOWNER'S WARRANTY OF SEAWORTHINESS EXTENDED TO A LONGSHOREMAN
INJURED WHILE LOADING THE SHIP, EVEN THOUGH THE LONGSHOREMAN WAS
EMPLOYED BY AN INDEPENDENT CONTRACTOR.  IN DOING SO, WE NOTED
PARTICULARLY THE HAZARDS OF MARINE SERVICE, THE HELPLESSNESS OF THE MEN
TO WARD OFF THE PERILS OF UNSEAWORTHINESS, THE HARSHNESS OF FORCING
THEM TO SHOULDER THEIR LOSSES ALONE, AND THE BROAD RANGE OF THE
"HUMANITARIAN POLICY" OF THE DOCTRINE OF SEAWORTHINESS, WHICH WE HELD
NOT TO DEPEND UPON ANY KIND OF CONTRACT.  328 U.S., AT 93-95.  WE
FURTHER HELD THAT THE LONGSHOREMEN'S AND HARBOR WORKERS' ACT WAS NOT
INTENDED TO TAKE AWAY FROM LONGSHOREMEN THE TRADITIONAL REMEDIES OF THE
SEA, SO THAT RECOVERY FOR UNSEAWORTHINESS COULD BE HAD NOTWITHSTANDING
THE AVAILABILITY OF COMPENSATION.  TEN YEARS LATER, IN RYAN STEVEDORING
CO. V. PAN-ATLANTIC S.S. CORP., 350 U.S. 124 (1956), WE WERE FACED WITH
THE QUESTION OF WHETHER A SHIPOWNER WHO WAS FORCED TO PAY DAMAGES TO A
LONGSHOREMAN INJURED BY THE UNSAFE STORAGE OF CARGO COULD RECOVER
INDEMNITY FROM THE STEVEDORING COMPANY FOR WHOM THE LONGSHOREMAN
WORKED.  EVEN IN THE ABSENCE OF AN INDEMNITY PROVISION, THE COURT HELD
THAT THE STEVEDORING COMPANY WAS LIABLE OVER TO THE SHIPOWNER BECAUSE
IT HAD PROMISED TO STORE THE CARGO SAFELY.  THE COURT WAS NOT CONVINCED
BY ARGUMENTS THAT ITS RESULT MADE THE ECONOMIC BURDEN OF THE
LONGSHOREMAN'S RECOVERY FALL ON THE STEVEDORING EMPLOYER CONTRARY TO
THE PURPOSE OF THE ACT.  THUS, THERE CAN BE NO DOUBT THAT, IF THE
PETITIONER HERE HAD BEEN EMPLOYED TO DO THIS PARTICULAR WORK BY AN
INDEPENDENT STEVEDORING COMPANY RATHER THAN DIRECTLY BY THE OWNER, HE
COULD HAVE RECOVERED DAMAGES FOR HIS INJURY FROM THE OWNER WHO COULD
HAVE THEN UNDER RYAN SHIFTED THE BURDEN OF THE RECOVERY TO PETITIONER'S
STEVEDORING EMPLOYER.  YET THE COURT OF APPEALS HELD, AND PAN-ATLANTIC
WOULD HAVE US HOLD, THAT PETITIONER MUST BE COMPLETELY DENIED THE
TRADITIONAL AND BASIC PROTECTION OF THE WARRANTY OF SEAWORTHINESS
SIMPLY BECAUSE PAN-ATLANTIC WAS NOT ONLY THE OWNER PRO HAC VICE OF THE
SHIP BUT WAS ALSO PETITIONER'S EMPLOYER.  IN MAKING THIS ARGUMENT, PAN
ATLANTIC HAS NOT POINTED AND COULD NOT POINT TO ANY ECONOMIC DIFFERENCE
BETWEEN GIVING RELIEF IN THIS CASE, WHERE THE OWNER ACTED AS HIS OWN
STEVEDORE, AND IN ONE IN WHICH THE OWNER HIRES AN INDEPENDENT COMPANY. 
IN EITHER CASE, UNDER RYAN, THE BURDEN ULTIMATELY FALLS ON THE COMPANY
WHOSE DEFAULT CAUSED THE INJURY.  PAN-ATLANTIC RELIES SIMPLY ON THE
LITERAL WORDING OF THE STATUTE, AND IT MUST BE ADMITTED THAT THE
STATUTE ON ITS FACE LENDS SUPPORT TO PAN-ATLANTIC'S CONSTRUCTION.  BUT
WE CANNOT NOW CONSIDER THE WORDING OF THE STATUTE ALONE.  WE MUST VIEW
IT IN THE LIGHT OF OUR PRIOR CASES IN THIS AREA, LIKE SIERACKI, RYAN,
AND OTHERS, THE HOLDINGS OF WHICH HAVE BEEN LEFT UNCHANGED BY
CONGRESS.  IN PARTICULAR, WE POINTED OUT SEVERAL TIMES IN THE SIERACKI
CASE, WHICH HAS BEEN CONSISTENTLY FOLLOWED SINCE, (FN10) THAT A
SHIPOWNER'S OBLIGATION OF SEAWORTHINESS CANNOT BE SHIFTED ABOUT,
LIMITED, OR ESCAPED BY CONTRACTS OR BY THE ABSENCE OF CONTRACTS AND
THAT THE SHIPOWNER'S OBLIGATION IS ROOTED, NOT IN CONTRACTS, BUT IN THE
HAZARDS OF THE WORK.  AND RYAN'S HOLDING THAT A NEGLIGENT STEVEDORING
COMPANY MUST INDEMNIFY A SHIPOWNER HAS IN LATER CASES BEEN FOLLOWED AND
TO SOME DEGREE EXTENDED.  (FN11)  IN THE LIGHT OF THIS WHOLE BODY OF
LAW, STATUTORY AND DECISIONAL, ONLY BLIND ADHERENCE TO THE SUPERFICIAL
MEANING OF A STATUTE COULD PROMPT US TO IGNORE THE FACT THAT PAN
ATLANTIC WAS NOT ONLY AN EMPLOYER OF LONGSHOREMEN BUT WAS ALSO A
BAREBOAT CHARTERER AND OPERATOR OF A SHIP AND, AS SUCH, WAS CHARGED
WITH THE TRADITIONAL, ABSOLUTE, AND NONDELEGABLE OBLIGATION OF
SEAWORTHINESS WHICH IT SHOULD NOT BE PERMITTED TO AVOID.  WE HAVE
PREVIOUSLY SAID THAT THE LONGSHOREMEN'S ACT "MUST BE LIBERALLY
CONSTRUED IN CONFORMANCE WITH ITS PURPOSE, AND IN A WAY WHICH AVOIDS
HARSH AND INCONGRUOUS RESULTS."  (FN12) WE THINK IT WOULD PRODUCE A
HARSH AND INCONGRUOUS RESULT, ONE OUT OF KEEPING WITH THE DOMINANT
INTENT OF CONGRESS TO HELP LONGSHOREMEN, (FN13) TO DISTINGUISH BETWEEN
LIABILITY TO LONGSHOREMEN INJURED UNDER PRECISELY THE SAME
CIRCUMSTANCES BECAUSE SOME DRAW THEIR PAY DIRECTLY FROM A SHIPOWNER AND
OTHERS FROM A STEVEDORING COMPANY DOING THE SHIP'S SERVICE. 
PETITIONER'S NEED FOR PROTECTION FROM UNSEAWORTHINESS WAS NEITHER MORE
NOR LESS THAN THAT OF A LONGSHOREMAN WORKING FOR A STEVEDORING
COMPANY.  AS WE SAID IN A SLIGHTLY DIFFERENT FACTUAL CONTEXT, "ALL WERE
SUBJECTED TO THE SAME DANGER.  ALL WERE ENTITLED TO LIKE TREATMENT
UNDER LAW."  (FN14)  WE CONCLUDE THAT PETITIONER WAS NOT BARRED BY THE
LONGSHOREMEN'S ACT FROM RELYING ON PAN-ATLANTIC'S LIABILITY AS A
SHIPOWNER FOR THE YAKA'S UNSEAWORTHINESS IN ORDER TO SUPPORT HIS LIBEL
IN REM AGAINST THE VESSEL.  REVERSED. 

FN1  WHETHER A BAREBOAT CHARTER ABSOLVES THE OWNER FROM LIABILITY ON
ITS WARRANTY OF SEAWORTHINESS IS A QUESTION WE ALSO RESERVED IN GUZMAN
V. PICHIRILO, 369 U.S. 698, 700 (1962).  WE DO NOT REACH THAT QUESTION
HERE. 

COUNSEL STATE THAT AN IN PERSONAM COMPLAINT AGAINST WATERMAN WAS
DISMISSED AND NO APPEAL WAS TAKEN BY PETITIONER.  BUT THIS HAS NO
RELEVANCY HERE. 

FN2  44 STAT. 1424 (1927), 33 U.S.C. SECS. 901-950. 

FN3  33 U.S.C. SEC. 933. 

FN4  33 U.S.C. SEC. 905. 

FN5  SEE GUZMAN V. PICHIRILO, 369 U.S. 698, 699-700 (1962), AND CASES
THERE CITED; GILMORE AND BLACK, THE LAW OF ADMIRALTY (1957), 215. 

FN6  SEE, E.G., LEARY V. UNITED STATES, 14 WALL.  607, 610 (1872);
UNITED STATES V. SHEA, 152 U.S. 178 (1894). 

FN7  PAN-ATLANTIC STATES IN ITS BRIEF, "WHETHER WE CALL HIM BAREBOAT
CHARTERER, OWNER PRO HAC VICE, OR DEMISEE, IT IS HE WHO 'IS THE
WARRANTOR OF SEAWORTHINESS.'" 

FN8  CF. CANNELLA V. LYKES BROS. S.S. CO., 174 F.2D 794 (C.A.2D CIR.
1949); CANNELLA V. UNITED STATES, 179 F.2D 491 (C.A.2D CIR. 1950). 

FN9  SEE, E.G., CRUMADY V. THE JOACHIM HENDRIK FISSER, 358 U.S. 423
(1959). 

FN10  SEE, E.G., POPE & TALBOT, INC., V. HAWN, 346 U.S. 406 (1953);
ALASKA S.S. CO. V. PETTERSON, 347 U.S. 396 (1954); ROGERS V. UNITED
STATES LINES, 347 U.S. 984 (1954); CRUMADY V. THE JOACHIM HENDRIK
FISSER, 358 U.S. 423 (1959). 

FN11  SEE, E.G., WEYERHAEUSER S.S. CO. V. NACIREMA OPERATING CO., 355
U.S. 563 (1958); CRUMADY V. THE JOACHIM HENDRIK FISSER, 358 U.S. 423
(1959); WATERMAN S.S. CORP. V. DUGAN & MCNAMARA, INC., 364 U.S. 421
(1960). 

FN12  VORIS V. EIKEL, 346 U.S. 328, 333 (1953). 

FN13 SEE S. REP. NO. 973, 69TH CONG., 1ST SESS. (1926); H.R. REP. NO.
1190, 69TH CONG., 1ST SESS. (1926). 

FN14  POPE & TALBOT, INC., V. HAWN, 346 U.S. 406, 413 (1953). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THIS DECISION GOES FURTHER THAN ANYTHING YET DONE BY THE COURT IN
F.E.L.A. AND ADMIRALTY CASES (SEE, E.G., ROGERS V. MISSOURI PAC. R.
CO., 325 U.S. 500, AND ITS OFFSPRING, AND GUTIERREZ V. WATERMAN S.S.
CORP., ANTE, P. 206) TO DO WHAT IT CONSIDERS "JUSTICE" TO THOSE WHO
HAVE BECOME THE UNFORTUNATE VICTIMS OF INDUSTRIAL ACCIDENTS.  FOR IT IS
NO EXAGGERATION TO SAY THAT IN HOLDING THAT A LONGSHOREMAN MAY RECOVER
FROM HIS OWN EMPLOYER FOR INJURIES SUFFERED IN THE COURSE OF
EMPLOYMENT, THE COURT HAS EFFECTIVELY "REPEALED" A BASIC ASPECT OF THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT. 

THE VIOLENCE DONE TO THE STATUTORY SCHEME IS MOST SIMPLY SHOWN MERELY
BY QUOTING THE RELEVANT PORTIONS OF THE TWO PROVISIONS THAT GOVERN THE
QUESTION BEFORE US.  THE FIRST IS THE DEFINITION OF "EMPLOYER" AS: 

"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)."  SEC. 2(4), 44 STAT. 1425, 33
U.S.C. SEC. 902(4). 

THE SECOND IS SEC. 5, A PROVISION ENTITLED "EXCLUSIVENESS OF
LIABILITY," WHICH STATES: 

"THE LIABILITY OF AN EMPLOYER (FOR THE COMPENSATION) PRESCRIBED IN
SUCH EMPLOYER TO THE EMPLOYEE  ...  AT LAW OR IN ADMIRALTY ON ACCOUNT
OF SUCH INJURY OR DEATH  ...  ."  44 STAT. 1426, 33 U.S.C.  SEC. 905. 

THERE BEING NO DOUBT THAT PETITIONER IS AN "EMPLOYEE" WITHIN THE
MEANING OF THE ACT, (FN1) THERE IS THUS NO QUESTION THAT HE IS EXCLUDED
FROM RECOVERING FROM HIS EMPLOYER, PAN-ATLANTIC, IN THIS ACTION.  UNDER
A STATUTE WHICH WAS SPECIFICALLY WRITTEN TO INCLUDE SHIPOWNERS WHO
EMPLOYED THEIR OWN DOCKWORKERS, AND WHICH EXCLUDED LIABILITY AT LAW OR
IN ADMIRALTY, THERE IS NO ROOM FOR CONCLUDING THAT AN EMPLOYER
SHIPOWNER CAN BE HELD LIABLE TO HIS OWN LONGSHOREMAN EMPLOYEE FOR
UNSEAWORTHINESS.  INDEED, THE POINT IS SO CLEAR THAT PETITIONER HAS HAD
WHAT I WOULD HAVE THOUGHT WAS THE GOOD SENSE NOT EVEN TO ARGUE TO THE
CONTRARY.  (HE HAS INSTEAD BASED HIS ARGUMENT WHOLLY ON THE THEORY THAT
THE SHIP ITSELF MAY BE LIABLE EVEN IN THE ABSENCE OF ANY UNDERLYING
PERSONAL LIABILITY ON THE PART OF ANYONE.)    WHILE CONCEDING THAT THE
STATUTE "ON ITS FACE LENDS SUPPORT" TO THE CONCLUSION THAT NEITHER
PARTY HAS CHALLENGED, THE COURT REFUSES TO GIVE WHAT IT DESCRIBES AS
"BLIND ADHERENCE TO THE SUPERFICIAL MEANING" OF THE ACT.  BUT IF
EXCLUSIVENESS OF LIABILITY IS THE "SUPERFICIAL" MEANING, THEN WHAT, MAY
IT BE ASKED, IS THE "TRUE" CONGRESSIONAL PURPOSE IN ENACTING THIS
LEGISLATION?  THE STATUTORY DESIGN WAS NOWHERE MORE CONCISELY OR MORE
ACCURATELY SUMMARIZED THAN IN THE DISSENTING OPINION IN RYAN
STEVEDORING CO. V. PAN-ATLANTIC S.S. CORP., 350 U.S. 124, 140, WHERE IT
WAS STATED: 

"CONGRESS WEIGHED THE CONFLICTING INTERESTS OF EMPLOYERS AND
EMPLOYEES AND STRUCK WHAT WAS CONSIDERED TO BE A FAIR AND
CONSTITUTIONAL BALANCE.  INJURED EMPLOYEES THEREBY LOST THEIR CHANCE TO
GET LARGE TORT VERDICTS AGAINST THEIR EMPLOYERS, BUT GAINED THE RIGHT
TO GET A SURE THOUGH FREQUENTLY A MORE MODEST RECOVERY.  HOWEVER, SEC.
33 DID LEAVE EMPLOYEES A CHANCE TO RECOVER EXTRA TORT DAMAGES FROM
THIRD PERSONS WHO NEGLIGENTLY INJURED THEM.  AND WHILE CONGRESS IMPOSED
ABSOLUTE LIABILITY ON EMPLOYERS, THEY WERE ALSO ACCORDED
COUNTERBALANCING ADVANTAGES.  THEY WERE NO LONGER TO BE SUBJECTED TO
THE HAZARDS OF LARGE TORT VERDICTS.  UNDER NO CIRCUMSTANCES WERE THEY
TO BE HELD LIABLE TO THEIR OWN EMPLOYEES FOR MORE THAN THE COMPENSATION
CLEARLY FIXED IN THE ACT.  THUS EMPLOYERS WERE GIVEN EVERY REASON TO
BELIEVE THEY COULD BUY THEIR INSURANCE AND MAKE OTHER BUSINESS
ARRANGEMENTS ON THE BASIS OF THE LIMITED COMPENSATION ACT LIABILITY." 
(FOOTNOTE OMITTED.) 

CONGRESS, THEN, DELIBERATELY GAVE EMPLOYERS CERTAIN "COUNTERBALANCING
ADVANTAGES" IN EXCHANGE FOR IMPOSING ON THEM ABSOLUTE LIABILITY.  IF
THESE ADVANTAGES ARE TO BE DISCARDED AS PURELY "SUPERFICIAL," THEN THE
TRUE PURPOSE OF THE STATUTE WAS APPARENTLY TO GIVE AN ADDITIONAL REMEDY
TO EMPLOYEES WHILE NOT REQUIRING THEM TO RELINQUISH ANY EXISTING
REMEDIES AS PART OF THE BARGAIN.  THIS, OF COURSE, IS PRECISELY THE
OPPOSITE OF WHAT CONGRESS EXPLICITLY AIMED TO DO. 

THE COURT IS FRANK TO ADMIT THAT THE REAL REASON FOR ITS DECISION IS
THAT A CONTRARY RESULT WOULD MAKE LITTLE ECONOMIC SENSE AFTER THE
DECISION IN RYAN, SUPRA, HOLDING THAT, ON THE BASIS OF AN IMPLIED
CONTRACT OF INDEMNITY, A SHIPOWNER IS ENTITLED TO REIMBURSEMENT FROM AN
INDEPENDENT STEVEDORE OF A JUDGMENT OBTAINED AGAINST THE SHIPOWNER BY
THE STEVEDORE'S EMPLOYEE.  ADMITTEDLY, THE LIABILITY IMPOSED IN RYAN IS
SIMILAR TO THE LIABILITY IMPOSED ON PAN-ATLANTIC IN THE PRESENT CASE. 
BUT WHAT IS OVERLOOKED IS THAT THE RYAN RESULT CAN BE SQUARED WITH THE
STATUTE, RESTING AS IT DID ON THE STEVEDORING COMPANY'S VOLUNTARILY
ASSUMED CONTRACTUAL OBLIGATION TO INDEMNIFY THE THIRD-PARTY SHIPOWNER,
WHILE THE PRESENT RESULT CANNOT.  GRANTING THAT PETITIONER COULD HAVE
RECOVERED IN THIS CASE FOR FAULTY EQUIPMENT BROUGHT ABOARD BY
LONGSHOREMEN IF THE SHIP HAD BEEN OPERATED BY AN INDEPENDENT COMPANY,
CF. ALASKA S.S. CO. V. PETTERSON, 347 U.S. 369, I BELIEVE THAT ANY
ANOMALY BETWEEN THAT CASE AND THIS ONE SHOULD BE LEFT TO CONGRESS TO
REMEDY, FOR IT MAY BE THAT IT WOULD CHOOSE MEANS WHOLLY DIFFERENT FROM
THOSE CHOSEN BY THE COURT.  THERE IS AN OUTER LIMIT BEYOND WHICH
JUDICIAL CONSTRUCTION OF THE LANGUAGE OF A STATUTE OUGHT NOT GO, AND I
RESPECTFULLY SUBMIT THAT THAT LIMIT HAS BEEN EXCEEDED HERE. 

BELIEVING THAT THERE IS NO BASIS ON WHICH RECOVERY BY PETITIONER CAN
BE SUSTAINED, (FN2) I WOULD AFFIRM THE JUDGMENT BELOW. 

FN1  THE ACT IN SEC. 2(3), 44 STAT. 1425, 33 U.S.C. SEC. 902(3),
DEFINES "EMPLOYEE," AND EXCLUDES ONLY MASTERS AND MEMBERS OF A CREW AND
THOSE ENGAGED TO LOAD OR UNLOAD ANY SMALL VESSEL UNDER 18 TONS NET. 

FN2  THE BASIS OF RECOVERY URGED BY PETITIONER IS THAT IN REM
LIABILITY OF THE SHIP CAN EXIST EVEN WITHOUT ANY UNDERLYING PERSONAL
LIABILITY.  BUT I FULLY AGREE WITH THE COURT BELOW (CF. GUZMAN V.
PICHIRILO, 369 U.S. 698, 704 (DISSENTING OPINION)) THAT SUCH A RESULT
WOULD BE A GROSS MISAPPLICATION OF A FICTION WHOSE PRINCIPAL MODERN
FUNCTION IS AS A PROCEDURAL DEVICE TO PROVIDE A CONVENIENT FORUM WHERE
NONE WOULD OTHERWISE BE AVAILABLE.  SEE CONTINENTAL GRAIN CO. V. BARGE
FBL-585, 364 U.S. 19, 23-24.  THE REASONS AGAINST ITS APPLICATION TO
CREATE SUBSTANTIVE LIABILITY WERE ELOQUENTLY STATED BY MR. JUSTICE
BRADLEY, SPEAKING FOR THE COURT IN CITY OF NORWICH, 118 U.S. 468, 503:
"TO SAY THAT AN OWNER IS NOT LIABLE, BUT THAT HIS VESSEL IS LIABLE,
SEEMS TO US LIKE TALKING IN RIDDLES  ...  .  IN THE MATTER OF
LIABILITY, A MAN AND HIS PROPERTY CANNOT BE SEPARATED ... ." 

THE COURT ALSO SUGGESTS THAT THERE MAY BE ANOTHER BASIS FOR RECOVERY
THAT IS NOT REACHED APPARENTLY ON THE GROUND THAT IT WAS NOT PROPERLY
PRESERVED:  THAT WATERMAN, THE DEMISOR, WAS NOT ABSOLVED BY THE MAKING
OF A BAREBOAT CHARTER FROM LIABILITY FOR UNSEAWORTHINESS ARISING AFTER
THE DEMISE.  I SEE NO PROCEDURAL BARRIER TO CONSIDERATION OF THIS
THEORY AS POSSIBLE SUPPORT FOR PETITIONER'S RECOVERY AGAINST THE SHIP,
BUT I DO NOT BELIEVE IT CAN BE SUSTAINED ON ITS MERITS.  I AGREE WITH
THE COURT BELOW, AND WITH THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
SEE GRILLEA V. UNITED STATES, 229 F.2D 687, 690, THAT A DEMISOR SHOULD
NOT BE HELD LIABLE FOR UNSEAWORTHINESS RESULTING SOLELY FROM THE
EQUIPMENT BROUGHT ON BOARD BY THE DEMISEE'S EMPLOYEES.  AN ANALOGY MAY
CONCEDEDLY BE DRAWN TO THIS COURT'S HOLDING IN ALASKA S.S. CO. V.
PETTERSON, SUPRA, RELATING TO THE SHIPOWNER'S LIABILITY FOR EQUIPMENT
BROUGHT ON BOARD BY A STEVEDORE, BUT I WOULD NOT EXTEND THAT ONE
SENTENCE 6-3 PER CURIAM DECISION BEYOND ITS PRECISE FACTS.  CF.
GUTIERREZ V. WATERMAN S.S. CORP., SUPRA, AT 216 (DISSENTING OPINION). 
..END :













NORVELL V. ILLINOIS 373 U.S. 420 


NO. 513.  ARGUED APRIL 24, 1963.  - DECIDED MAY 27, 1963.  - 25 ILL. 2D
169, 182 N.E.2D 719, AFFIRMED. 


IN APPLYING THE DOCTRINE OF GRIFFIN V. ILLINOIS, 351 U.S. 12, TO A
SITUATION WHERE NO TRANSCRIPT OF THE TRIAL OF AN INDIGENT DEFENDANT IS
AVAILABLE DUE TO THE DEATH OF THE COURT REPORTER, A STATE MAY, WITHOUT
VIOLATION OF THE DUE PROCESS OR EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, DENY RELIEF TO AN INDIGENT PRISONER WHO HAD A
LAWYER AT HIS TRIAL AND PRESUMABLY HAD THE LAWYER'S CONTINUING SERVICES
FOR PURPOSES OF APPEAL AND YET FAILED TO PURSUE AN APPEAL.  PP. 420
424. 

NORVELL V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF MURDER IN THE ILLINOIS COURTS IN 1941 AND
SENTENCED TO 199 YEARS IN PRISON.  THOUGH INDIGENT, HE HAD A LAWYER AT
THE TRIAL. 

ON THE DATE OF THE SENTENCE THE DOCKET ENTRY READS:  "DEFENDANT
WILLIE NORVELL'S MOTION FOR ALLOWANCE OF 90 DAYS' TIME IN WHICH TO
PREPARE AND FILE HIS BILL OF EXCEPTIONS ALLOWED."  PRESUMABLY
PETITIONER'S LAWYER MADE THAT MOTION, THOUGH THE RECORD DOES NOT
INDICATE ONE WAY OR THE OTHER.  PETITIONER TRIED TO GET A TRANSCRIPT. 
BUT AGAIN WHETHER HE ACTED ON HIS OWN OR THROUGH HIS LAWYER WE DO NOT
KNOW.  WE DO KNOW, HOWEVER, THAT BECAUSE HE WAS INDIGENT HE WAS UNABLE
TO PAY THE COSTS OF THE TRANSCRIPT AND THEREFORE DID NOT OBTAIN IT; AND
HE DID NOT, MOREOVER, PURSUE AN APPEAL. 

IN 1956 WE DECIDED GRIFFIN V. ILLINOIS, 351 U.S. 12, HOLDING ON THE
FACTS OF THAT CASE THAT IT WAS A VIOLATION OF THE FOURTEENTH AMENDMENT
TO DEPRIVE A PERSON BECAUSE OF HIS INDIGENCY OF ANY RIGHTS OF APPEAL
AFFORDED ALL OTHER CONVICTED DEFENDANTS.  AND SEE DRAPER V. WASHINGTON,
372 U.S. 487; ESKRIDGE V. WASHINGTON, 357 U.S. 214.  CF. BURNS V. OHIO,
360 U.S. 252; SMITH V. BENNETT, 365 U.S. 708.  THEREUPON THE SUPREME
COURT OF ILLINOIS ADOPTED RULE 65-1 (SMITH-HURD'S ILL. ANN. STAT., C.
110, SEC. 101.65-1) BY WHICH THE STATE PROVIDES A FREE TRIAL TRANSCRIPT
TO EVERY INDIGENT PERSON CONVICTED OF CRIME, WHETHER HE WAS CONVICTED
PRIOR TO THE GRIFFIN DECISION OR THEREAFTER.  AN IMPORTANT EXCEPTION TO
THAT RULE, APPLICABLE HERE, IS THE FOLLOWING: 

"  ...  IN THE EVENT THE COURT FINDS THAT IT IS IMPOSSIBLE TO FURNISH
PETITIONER A STENOGRAPHIC TRANSCRIPT OF THE PROCEEDINGS AT HIS TRIAL
BECAUSE OF THE UNAVAILABILITY OF THE COURT REPORTER WHO REPORTED THE
PROCEEDINGS AND THE INABILITY OF ANY OTHER COURT REPORTER TO TRANSCRIBE
THE NOTES OF THE COURT REPORTER WHO SERVED AT THE TRIAL, OR FOR ANY
OTHER REASON, THE COURT SHALL DENY THE PETITION."  RULE 65-1(2). 

ON MOTION OF PETITIONER IN 1956 THE TRIAL COURT WAS REQUESTED TO
FURNISH A STENOGRAPHIC TRANSCRIPT OF HIS TRIAL.  THE TRIAL JUDGE,
FINDING THAT PETITIONER HAD SATISFIED THE CONDITIONS PRESCRIBED IN THE
RULE, ORDERED THE OFFICIAL SHORTHAND REPORTER TO TRANSCRIBE HIS NOTES
AND FURNISH PETITIONER WITH A COPY OF THE TRANSCRIPT.  IT SUBSEQUENTLY
APPEARED, HOWEVER, THAT THE OFFICIAL REPORTER IN QUESTION HAD DIED SOME
YEARS EARLIER AND THAT NO ONE COULD READ HIS SHORTHAND NOTES.  AN
EFFORT WAS THEN MADE TO RECONSTRUCT THE TRANSCRIPT THROUGH THE
TESTIMONY OF PERSONS WHO ATTENDED THE TRIAL.  TEN WITNESSES TESTIFIED,
INCLUDING PETITIONER, BUT NONE COULD RECALL MUCH OF THE EVIDENCE
INTRODUCED AT THE 1941 TRIAL.  THUS IN 1956 IT WAS NOT POSSIBLE FOR
ILLINOIS TO SUPPLY PETITIONER WITH THE ADEQUATE APPELLATE REVIEW OF HIS
1941 CONVICTION WHICH HE FAILED TO PURSUE AT THAT TIME.  CF. ESKRIDGE
V. WASHINGTON, SUPRA. 

THE TRIAL JUDGE WHO HEARD THIS MOTION ENTERED AN ORDER DENYING
PETITIONER A NEW TRIAL.  THE SUPREME COURT OF ILLINOIS AFFIRMED.  25
ILL. 2D 169, 182 N.E.2D 719.  THE CASE IS HERE ON A PETITION FOR A WRIT
OF CERTIORARI.  371 U.S. 860. 

THE ISSUE IN THE CASE IS WHETHER ILLINOIS HAS MADE AN "INVIDIOUS
DISCRIMINATION" AGAINST PETITIONER.  GRIFFIN V. ILLINOIS, SUPRA, P.
18.  MORE PRECISELY, THE QUESTION IS WHETHER WHEN A TRANSCRIPT CANNOT
SUBSEQUENTLY BE OBTAINED OR RECONSTRUCTED THROUGH NO FAULT OF THE
STATE, MAY IT CONSTITUTIONALLY DRAW THE LINE AGAINST INDIGENTS WHO HAD
LAWYERS AT THEIR TRIAL BUT AFTER CONVICTION DID NOT PURSUE THEIR
REMEDY?  ILLINOIS ON THE FACE OF ITS RULES DRAWS NO SUCH DISTINCTION. 
BUT ILLINOIS IN THE APPLICATION OF ITS RULES HAS DENIED RELIEF IN SUCH
A CASE.  (FN1)  AND SO WE HAVE THE NARROW QUESTION - WHETHER A STATE
MAY AVOID THE OBLIGATION OF GRIFFIN V. ILLINOIS, WHERE, WITHOUT FAULT,
NO TRANSCRIPT CAN BE MADE AVAILABLE, THE INDIGENT HAVING HAD A LAWYER
AT THE TRIAL AND NO REMEDY HAVING BEEN SOUGHT AT THE TIME. 

IF IT APPEARED THAT THE LAWYER WHO REPRESENTED PETITIONER AT THE
TRIAL REFUSED TO REPRESENT HIM ON THE APPEAL AND PETITIONER'S INDIGENCY
PREVENTED HIM FROM RETAINING ANOTHER, WE WOULD HAVE A DIFFERENT CASE. 
CF. DOUGLAS V. CALIFORNIA, 372 U.S. 353.  PETITIONER, WHO TESTIFIED AT
THE HEARING ON THE MOTION, MADE NO SUCH CLAIM.  NOR DID THE LAWYER, WHO
TESTIFIED AS FOLLOWS: 

"I HAVE NO INDEPENDENT RECOLLECTION WHETHER THERE WERE MOTIONS FOR A
NEW TRIAL MADE IN THE REGULAR COURSE AFTER THE TRIAL.  ALL OF THE
CONSTITUTIONAL GUARANTEES WHICH WERE AFFORDED MY CLIENT, WILLIE
NORVELL, WERE ASSERTED AT THAT TIME.  I HAVE NO INDEPENDENT
RECOLLECTION OF THIS CASE, BUT I GIVE THE DEFENDANT EVERY
CONSTITUTIONAL GUARANTEE THAT THE LAW AFFORDS. 

"I HAVE NO RECOLLECTION NOW ON WHETHER OR NOT I WAS EVER CALLED UPON
FOR AN APPEAL IN THIS MATTER.   I HAVE NO RECOLLECTION ONE WAY OR THE
OTHER WHETHER I WAS CALLED UPON TO OBTAIN A TRANSCRIPT OF THE TRIAL." 

WE DO NOT SAY THAT PETITIONER, HAVING HAD A LAWYER, COULD BE FOUND TO
HAVE WAIVED HIS RIGHTS ON APPEAL.  WE ONLY HOLD THAT A STATE, IN
APPLYING GRIFFIN V. ILLINOIS TO SITUATIONS WHERE NO TRANSCRIPT OF THE
TRIAL IS AVAILABLE DUE TO THE DEATH OF THE COURT REPORTER, MAY WITHOUT
VIOLATION OF THE DUE PROCESS OR EQUAL PROTECTION CLAUSE DENY RELIEF TO
THOSE WHO, AT THE TIME OF THE TRIAL, HAD A LAWYER AND WHO PRESUMABLY
HAD HIS CONTINUING SERVICES FOR PURPOSES OF APPEAL (FN2) AND YET FAILED
TO PURSUE AN APPEAL.  EXACT EQUALITY IS NO PREREQUISITE OF EQUAL
PROTECTION OF THE LAWS WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT. 
SEE DOUGLAS V. CALIFORNIA, SUPRA.  AS WE SAID IN TIGNER V. TEXAS, 310
U.S. 141, 147: 

"  ...  THE FOURTEENTH AMENDMENT ENJOINS 'THE EQUAL PROTECTION OF THE
LAWS,' AND LAWS ARE NOT ABSTRACT PROPOSITIONS.  THEY DO NOT RELATE TO
ABSTRACT UNITS A, B AND C, BUT ARE EXPRESSIONS OF POLICY ARISING OUT OF
SPECIFIC DIFFICULTIES, ADDRESSED TO THE ATTAINMENT OF SPECIFIC ENDS BY
THE USE OF SPECIFIC REMEDIES.  THE CONSTITUTION DOES NOT REQUIRE THINGS
WHICH ARE DIFFERENT IN FACT OR OPINION TO BE TREATED IN LAW AS THOUGH
THEY WERE THE SAME." 

WHEN, THROUGH NO FAULT OF THE STATE, TRANSCRIPTS OF CRIMINAL TRIALS
ARE NO LONGER AVAILABLE BECAUSE OF THE DEATH OF THE COURT REPORTER,
SOME PRACTICAL ACCOMMODATION MUST BE MADE.  WE REPEAT WHAT WAS SAID IN
METROPOLIS THEATRE CO. V. CHICAGO, 228 U.S. 61, 69-70: 

"THE PROBLEMS OF GOVERNMENT ARE PRACTICAL ONES AND MAY JUSTIFY, IF
THEY DO NOT REQUIRE, ROUGH ACCOMMODATIONS - ILLOGICAL, IT MAY BE, AND
UNSCIENTIFIC  ...  .  WHAT IS BEST IS NOT ALWAYS DISCERNIBLE; THE
WISDOM OF ANY CHOICE MAY BE DISPUTED OR CONDEMNED." 

THE "ROUGH ACCOMMODATIONS" MADE BY GOVERNMENT DO NOT VIOLATE THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT UNLESS THE LINES
DRAWN ARE "HOSTILE OR INVIDIOUS."  WELCH V. HENRY, 305 U.S. 134, 144. 
WE CAN MAKE NO SUCH CONDEMNATION HERE.  FOR, WHERE TRANSCRIPTS ARE NO
LONGER AVAILABLE, ILLINOIS MAY REST ON THE PRESUMPTION THAT HE WHO HAD
A LAWYER AT THE TRIAL HAD ONE WHO COULD PROTECT HIS RIGHTS ON APPEAL. 
AFFIRMED. 

FN1  THE CASE IS ANALOGOUS TO THOSE WHERE THIS COURT'S REVIEW OF A
STATE JUDGMENT SUSTAINING A STATE LAW IS DIRECTED TO THE STATUTE "AS
APPLIED AND ENFORCED IN RESPECT OF THE SITUATION PRESENTED."  FISKE V.
KANSAS, 274 U.S. 380, 385.  AND SEE TERMINIELLO V. CHICAGO, 337 U.S. 1,
4. 

FN2  THE RECORD IN GRIFFIN V. ILLINOIS, SUPRA, SHOWS THAT SUCH WAS
NOT THE CASE THERE. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE STEWART JOINS,
DISSENTING. 

I MUST RESPECTFULLY DISSENT BECAUSE THE MAJORITY IGNORES WHAT TO ME
IS THE KEY TO DISPOSITION OF THIS MATTER.  THE ILLINOIS SUPREME COURT
DECIDED THIS CASE UNDER A MISAPPREHENSION AS TO A CRUCIAL POINT OF
FEDERAL CONSTITUTIONAL LAW, BUT FOR WHICH IT MIGHT HAVE RESOLVED THE
ULTIMATE QUESTION IN FAVOR OF, RATHER THAN AGAINST, THE PETITIONER. 

THE ILLINOIS COURT CONCLUDED THAT THE DECISION OF THIS COURT IN
GRIFFIN V. ILLINOIS, 351 U.S. 12, OPERATED PROSPECTIVELY, AND NOT
RETROACTIVELY, IN THE SENSE THAT IT INVALIDATED ONLY "EXISTING
FINANCIAL BARRIERS" TO APPEAL.  GIVEN ITS VIEW OF GRIFFIN, IT WAS
UNNECESSARY FOR THE STATE COURT TO CONSIDER WHETHER THE PETITIONER, WHO
CONCEDEDLY COULD NOT OBTAIN A TRANSCRIPT AT THE TIME OF HIS ORIGINAL
CONVICTION IN 1941 BECAUSE OF HIS INDIGENCY, WAS AT THAT TIME DEPRIVED
OF HIS CONSTITUTIONAL RIGHTS.  ENABLED BY THIS ERRONEOUS INTERPRETATION
OF GRIFFIN TO PUT ASIDE THIS BASIC CONSTITUTIONAL ISSUE, THE ILLINOIS
SUPREME COURT HELD ONLY THAT ITS PRESENT RULE, AS APPLIED TO DENY THE
PETITIONER A TRANSCRIPT NOW ON HIS DELAYED APPEAL, WAS NOT
UNCONSTITUTIONAL BECAUSE THAT DENIAL WAS BASED SOLELY UPON THE PRESENT
UNAVAILABILITY OF THE TRANSCRIPT, AND NOT UPON ANYTHING RELATED TO THE
PETITIONER'S INDIGENCY.  THE MAJORITY OF THIS COURT SEEMS TODAY TO
APPROVE AT LEAST THAT HOLDING OF THE STATE COURT, THOUGH ON GROUNDS
DIFFERENT FROM THOSE RELIED UPON BELOW. 

THE STATE SUPREME COURT WAS IN ERROR IN ITS BELIEF THAT THE
PRINCIPLES OF GRIFFIN HAVE NO APPLICATION TO DENIALS OF TRANSCRIPTS
WHICH OCCURRED BEFORE GRIFFIN WAS DECIDED.  GRIFFIN WAS A
CONSTITUTIONAL DECISION VINDICATING BASIC FOURTEENTH AMENDMENT RIGHTS
AND IS NO MORE TO BE RESTRICTED IN SCOPE OR APPLICATION IN TIME THAN
OTHER CONSTITUTIONAL JUDGMENTS.  THIS, IT SEEMS TO ME, IS THE CLEAR
IMPORT OF THIS COURT'S DECISION IN ESKRIDGE V. WASHINGTON, 357 U.S.
214.* 

*THE ILLINOIS COURT SAID SIMPLY THAT ESKRIDGE "DID NOT HOLD THAT THE
FAILURE TO FURNISH DEFENDANT WITH A FREE TRANSCRIPT IN 1935 DENIED HIM
A RIGHT GUARANTEED BY THE FOURTEENTH AMENDMENT, BUT HELD THAT THE
FAILURE IN 1956 TO FURNISH HIM WITH A FREE TRANSCRIPT WHICH WAS STILL
AVAILABLE DENIED HIM OF SUCH A RIGHT."  25 ILL. 2D 169, 173, 182 N.E.2D
719, 720-721.  ESKRIDGE WAS THUS READ TO MEAN MERELY "THAT SUCH
FINANCIAL BARRIERS COULD NO LONGER BE IMPOSED BY THE STATE EVEN THOUGH
THE INDIGENT DEFENDANT WAS SENTENCED PRIOR TO THE TIME THE RESTRICTIONS
WERE INVALIDATED."  IBID.  THE ISSUE IN ESKRIDGE, HOWEVER, AS PRESENTED
ON REVIEW OF A 1956 STATE HABEAS CORPUS PROCEEDING, WAS WHETHER THE
PETITIONER THERE HAD BEEN DEPRIVED OF A CONSTITUTIONAL RIGHT WHEN FIRST
CONVICTED IN 1935 BECAUSE HE WAS THEN DENIED A TRANSCRIPT WITH WHICH TO
PROSECUTE AN APPEAL AS AN INDIGENT; THIS COURT DECIDED THAT ISSUE IN
FAVOR OF ESKRIDGE. 

OF COURSE, WE DO NOT KNOW HOW THE ILLINOIS COURT WOULD HAVE RESOLVED
THE PETITIONER'S CLAIM THAT HE IS ENTITLED EITHER TO A TRANSCRIPT OR A
NEW TRIAL IF IT HAD VIEWED GRIFFIN AS HAVING RETROACTIVE EFFECT AND AS
CONTROLLING WITH RESPECT TO THE CONSTITUTIONAL DEPRIVATION WHICH MAY
HAVE OCCURRED IN 1941.  ILLINOIS HAS SHOWN A BROAD AND COMMENDABLE
LATITUDE IN IMPLEMENTING THE PRINCIPLES ENUNCIATED IN GRIFFIN, AND I
WOULD NOT PRESUME TO PREDICT WHAT ITS COURTS MIGHT DO UNDER A PROPER
READING OF THAT CASE.  BECAUSE ILLINOIS HAS NOT PASSED UPON WHAT IS
PERHAPS THE CONTROLLING ISSUE IN THE CASE, AND BECAUSE WE OUGHT NOT TO
ANTICIPATE AND RESOLVE DIFFICULT CONSTITUTIONAL QUESTIONS UNLESS
NECESSARY, I WOULD VACATE AND REMAND THE CASE TO THE SUPREME COURT OF
ILLINOIS TO PERMIT IT TO DECIDE THE QUESTION WHICH IT TREATED AS
FORECLOSED ONLY BECAUSE IT BELIEVED GRIFFIN'S APPLICATION NOT TO BE
FULLY RETROACTIVE. 
..END :










LOPEZ V. UNITED STATES 373 U.S. 427 


NO. 236.  ARGUED JANUARY 14, 1963.  - DECIDED MAY 27, 1963.  - 305 F.2D
825, AFFIRMED. 


IN A FEDERAL DISTRICT COURT, PETITIONER WAS CONVICTED OF ATTEMPTING TO
BRIBE AN INTERNAL REVENUE AGENT IN VIOLATION OF 18 U.S.C. SEC. 201. 
THE AGENT WAS INVESTIGATING POSSIBLE EVASION OF EXCISE TAXES ON
CABARETS.  ON A VISIT TO PETITIONER'S INN, THE AGENT SAW DANCING IN THE
BAR AND LOUNGE, SPOKE TO PETITIONER ABOUT IT AND SUGGESTED THAT THE INN
MIGHT BE LIABLE FOR A CABARET TAX.  ACCORDING TO THE AGENT'S TESTIMONY,
PETITIONER SUGGESTED, AFTER SOME DISCUSSION, THAT THE AGENT COULD DROP
THE CASE, GAVE HIM $420 AND PROMISED MORE IN THE FUTURE.  PETITIONER
ALSO PROMISED TO FILE A RETURN FOR THE CURRENT QUARTER AND INVITED THE
AGENT TO RETURN A FEW DAYS LATER.  WHEN HE KEPT THAT APPOINTMENT, THE
AGENT CARRIED WITH HIM A POCKET WIRE RECORDER WHICH RECORDED HIS
CONVERSATION WITH WITH PETITIONER.  THE AGENT PRODUCED AN EXCISE TAX
RETURN FORM AND STARTED TO EXPLAIN IT.  PETITIONER TOLD THE AGENT THAT
HE WANTED THE AGENT TO BE ON PETITIONER'S SIDE, GAVE HIM SOME MONEY,
AND PROMISED MORE.  AT THE TRIAL, THE AGENT TESTIFIED CONCERNING HIS
CONVERSATIONS WITH PETITIONER, AND HIS TESTIMONY WAS CORROBORATED BY
THE ADMISSION IN EVIDENCE OF THE RECORDING OF THE LAST CONVERSATION. 
PETITIONER'S COUNSEL DID NOT REQUEST ACQUITTAL ON THE GROUND OF
ENTRAPMENT, REQUEST ANY INSTRUCTION ON THAT SUBJECT OR OBJECT TO THE
INSTRUCTIONS ACTUALLY GIVEN.  HE DID OBJECT TO THE ADMISSION IN
EVIDENCE OF THE RECORDING OF THE AGENT'S CONVERSATION WITH PETITIONER,
ON THE GROUND THAT IT WAS INADMISSIBLE AS THE FRUIT OF A FRAUDULENT
ENTRY INTO PETITIONER'S PRIVATE OFFICE IN VIOLATION OF THE FOURTH
AMENDMENT.  HELD: 

1.  ON THE RECORD IN THIS CASE, ENTRAPMENT WAS NOT SHOWN AS A MATTER
OF LAW; AND, IF THERE WAS ANY ERROR IN THE TRIAL COURT'S INSTRUCTIONS
ON THIS SUBJECT, IT WAS NOT REVERSIBLE ERROR.  PP. 434-437. 

2.  BOTH THE AGENT'S TESTIMONY PERTAINING TO HIS CONVERSATION WITH
PETITIONER AND THE WIRE RECORDING OF THAT CONVERSATION WERE PROPERLY
ADMITTED IN EVIDENCE.  PP. 437-440. 

(A)  THE AGENT WAS NOT GUILTY OF AN UNLAWFUL INVASION OF PETITIONER'S
OFFICE IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AMENDMENT SIMPLY
BECAUSE HIS APPARENT WILLINGNESS TO ACCEPT A BRIBE WAS NOT REAL.  PP.
437-438. 

(B)  THE SECRET MAKING OF THE WIRE RECORDING OF THE CONVERSATION DID
NOT VIOLATE PETITIONER'S RIGHTS UNDER THE FOURTH AMENDMENT.  PP. 438
439. 

(C)  THIS COURT SHOULD NOT, IN THE EXERCISE OF ITS SUPERVISORY
POWERS, PREVENT THE INTRODUCTION OF THE RECORDING IN EVIDENCE, SINCE
THERE WAS NO MANIFESTLY IMPROPER CONDUCT BY FEDERAL OFFICIALS.  P.
440. 

LOPEZ V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, GERMAN S. LOPEZ, WAS TRIED IN A FEDERAL COURT ON A
FOUR-COUNT INDICTMENT CHARGING HIM WITH ATTEMPTED BRIBERY OF AN
INTERNAL REVENUE AGENT, ROGER S. DAVIS, IN VIOLATION OF 18 U.S.C. SEC.
201.  (FN1) THE QUESTIONS BEFORE US FOR REVIEW ARE:  (1) WHETHER THE
TRIAL COURT'S TREATMENT OF "ENTRAPMENT" CONSTITUTED REVERSIBLE ERROR;
AND (2) WHETHER DAVIS' TESTIMONY RELATING TO A CONVERSATION WITH
PETITIONER ON OCTOBER 24, 1961, WHICH FORMED THE BASIS OF THE THREE
COUNTS OF THE INDICTMENT ON WHICH PETITIONER WAS CONVICTED, AND A WIRE
RECORDING OF THAT CONVERSATION, WERE PROPERLY ADMITTED INTO EVIDENCE. 

THE EVIDENCE AT THE TRIAL RELATED TO THREE MEETINGS BETWEEN LOPEZ AND
DAVIS THAT TOOK PLACE AT CLAUSON'S INN, SITUATED AT NORTH FALMOUTH,
MASSACHUSETTS, AND OPERATED BY LOPEZ UNDER A LEASE.  DAVIS, WHO WAS
INVESTIGATING POSSIBLE EVASION OF EXCISE TAXES IN THE AREA, FIRST
VISITED THE INN ON THE AFTERNOON OF AUGUST 31, 1961, WHEN HE ASKED
LOPEZ WHETHER THERE WAS ANY DANCING, SINGING, OR OTHER ENTERTAINMENT IN
THE EVENINGS AND SHOWED HIM AN ADVERTISEMENT FOR THE INN WHICH STATED
THAT THERE WAS.  LOPEZ SAID THERE WAS NO ENTERTAINMENT AND DENIED
RESPONSIBILITY FOR THE ADVERTISEMENT.  DAVIS RETURNED AGAIN THAT
EVENING AND SAW DANCING IN THE BAR AND LOUNGE.  HE DESCRIBED THE INN IN
A REPORT TO HIS SUPERIOR THE NEXT DAY AS A "POTENTIAL DELINQUENT" AND
SAID THAT HE WOULD "FOLLOW UP." 

DAVIS NEXT RETURNED TO THE INN ON OCTOBER 21, WHEN HE AGAIN SAW
DANCING IN THE BAR AND LOUNGE, AND SPOKE WITH LOPEZ.  DAVIS' TESTIMONY
ABOUT THIS MEETING MAY BE SUMMARIZED AS FOLLOWS:  EARLY IN THE
DISCUSSION, DAVIS TOLD LOPEZ THAT HE THOUGHT THE ESTABLISHMENT WOULD BE
LIABLE FOR A CABARET TAX AND ASKED TO SEE THE BOOKS, BUT LOPEZ RESISTED
AND SUGGESTED THAT THEY CONTINUE THE CONVERSATION IN HIS OFFICE.  ONCE
THERE, LOPEZ SUGGESTED THAT HE WOULD LIKE TO AVOID ALL "AGGRAVATION"
AND TO REACH AN "AGREEMENT."  AFTER DAVIS SAID HE COULD NOT DROP THE
MATTER AND WOULD RETURN THE FOLLOWING WEEK, LOPEZ SAID HE DIDN'T WISH
TO "INSULT" DAVIS AND THAT HE DIDN'T KNOW WHETHER TO TAKE HIM INTO HIS
"CONFIDENCE."  RECEIVING NO REPLY, LOPEZ PUT SOME MONEY ON THE DESK
SAYING: 

"YOU CAN DROP THIS CASE.  HERE'S $200.  BUY YOUR WIFE A PRESENT.  AND
I'LL HAVE MORE MONEY FOR YOU AT CHRISTMAS TIME.  THIS IS ALL I HAVE
NOW." 

DAVIS BALKED, AND LOPEZ URGED HIM TO TAKE THE MONEY AND TO BRING HIS
WIFE AND FAMILY FOR A WEEKEND "AS MY GUEST."  FOLLOWING SOME
QUESTIONING AS TO THE EXTENT OF LOPEZ' BUSINESS, DURING THE COURSE OF
WHICH DAVIS ESTIMATED A YEAR'S TAX AS RUNNING TO $3,000, LOPEZ ADDED
ANOTHER $220 TO THE MONEY ON THE DESK, STATING THAT HE DID NOT WANT TO
BE BOTHERED WITH RETURNS FOR PAST YEARS BUT WOULD FILE A RETURN FOR THE
CURRENT QUARTER.  MORE IMPORTUNITIES ON LOPEZ' PART FOLLOWED AND DAVIS
FINALLY TOOK THE MONEY.  BEFORE DAVIS LEFT, LOPEZ AGAIN SAID HE WOULD
FILE A RETURN FOR THE CURRENT QUARTER AND ASKED DAVIS TO COME BACK ON
OCTOBER 24. 

LOPEZ, IN HIS VERSION OF THE EVENTS OF OCTOBER 21, ADMITTED GIVING
THE $420 TO DAVIS BUT SAID THE MONEY WAS GIVEN IN AN EFFORT TO HAVE
DAVIS PREPARE HIS RETURNS AND GET HIS BOOKS IN PROPER ORDER.  ACCORDING
TO LOPEZ' TESTIMONY, HE TOLD DAVIS THAT HE WOULD FILE RETURNS FROM
OCTOBER 17 ON, SINCE ON THAT DATE THE INN HAD CHANGED ITS POLICY TO ONE
OF ENTERTAINMENT. 

AFTER LEAVING THE INN, DAVIS REPORTED THE MEETING TO A FELLOW AGENT
AND TO HIS SUPERIOR AND TURNED OVER THE $420 TO A REGIONAL INSPECTOR. 
ON THE MORNING OF OCTOBER 24, HE MET WITH FOUR INTERNAL REVENUE
INSPECTORS, WHO INSTRUCTED HIM TO KEEP HIS APPOINTMENT WITH LOPEZ, TO
"PRETEND TO PLAY ALONG WITH THE SCHEME," AND TO DRAW THE CONVERSATION
BACK TO THE MEETING OF OCTOBER 21.  DAVIS WAS THEN EQUIPPED WITH TWO
ELECTRONIC DEVICES, A POCKET BATTERY-OPERATED TRANSMITTER (WHICH
SUBSEQUENTLY FAILED TO WORK) AND A POCKET WIRE RECORDER, WHICH RECORDED
THE CONVERSATION BETWEEN LOPEZ AND DAVIS AT THEIR MEETING LATER IN THE
DAY. 

ACCORDING TO THE RECORDING OF THAT CONVERSATION, DAVIS SUGGESTED THEY
TALK IN LOPEZ' OFFICE AND, ONCE INSIDE THE OFFICE, DAVIS STARTED TO
EXPLAIN THE EXCISE TAX FORM AND TO DISCUSS THE RETURN.  BEFORE ANY
COMPUTATIONS WERE MADE, LOPEZ SAID HE HAD NEVER THOUGHT HE NEEDED TO
FILE A CABARET TAX RETURN, AND THE CONVERSATION THEN CONTINUED: 

"LOPEZ:  ...  WHATEVER WE DECIDE TO DO FROM HERE ON I'D LIKE YOU TO
BE ON MY SIDE AND VISIT WITH ME.  DEDUCT ANYTHING YOU THINK YOU SHOULD
AND I'LL BE HAPPY TO  ...  BECAUSE YOU MAY PREVENT SOMETHING COMING UP
IN THE OFFICE.  IF YOU THINK I SHOULD BE ADVISED ABOUT IT LET ME KNOW. 
PICK UP THE PHONE.  I CAN MEET YOU IN TOWN OR ANYWHERE YOU WANT.  FOR
YOUR INFORMATION THE OTHER NIGHT I HAVE TO  ... 

"DAVIS:  WELL, YOU KNOW I'VE GOT A JOB TO DO. 

"LOPEZ:  YES, AND UNCLE SAM IS BIGGER THAN YOU AND I ARE AND WE PAY A
LOT OF TAXES, AND IF WE CAN BENEFIT SOMETHING BY IT INDIVIDUALLY, LET'S
KEEP IT THAT WAY AND BELIEVE ME ANYTHING THAT TRANSPIRES BETWEEN YOU
AND I, NOT EVEN MY WIFE OR MY ACCOUNTANT OR ANYBODY IS AWARE OF IT.  SO
I WANT YOU TO FEEL THAT WAY ABOUT IT."  (FN2) 

THE TWO THEN DISCUSSED RECEIPTS AND THE POTENTIAL TAX LIABILITY FOR
1959-1961, AND LOPEZ PROTESTED THAT DAVIS' ESTIMATES WERE VERY HIGH,
ALTHOUGH HE DID NOT DENY THE FACT OF LIABILITY.  AFTER DAVIS SAID, "I
DON'T WANT TO GET GREEDY OR ANYTHING," LOPEZ GAVE HIM $200 AND LATER IN
THE CONVERSATION TOLD DAVIS HE COULD BRING HIS FAMILY DOWN FOR A FREE
WEEKEND AND SHOULD "COME IN EVERY SO OFTEN AND I'LL GIVE YOU A COUPLE
OF HUNDRED DOLLARS EVERY TIME YOU COME IN."  AT ONE POINT, LOPEZ SAID
"NOW IF YOU SHOULD SUGGEST THAT I SHOULD FILE RETURNS FROM THIS POINT
ON, I'LL DO IT.  IF YOU SUGGEST THAT I CAN GET BY WITHOUT DOING IT,
THEN JUST DROP IN EVERY SO OFTEN AND I'LL  ...  " LOPEZ ALSO CONFIRMED
THAT HE HAD GIVEN DAVIS $420 ON OCTOBER 21. 

LOPEZ, IN HIS TESTIMONY, DID NOT QUESTION THE ACCURACY OF THE
RECORDING AND IN FACT SAID LITTLE MORE ABOUT THE MEETING OF OCTOBER 24
THAN THAT DAVIS HAD GONE INTO A LOT OF FIGURES AND THAT HE (LOPEZ) HAD
BECOME EMOTIONALLY UPSET BECAUSE HE FELT THAT DAVIS "WAS NOT THERE FOR
THE PURPOSE THAT HE CAME IN THERE FOR ON OCTOBER 21ST."  HE DID NOT
SUGGEST THAT DAVIS HAD INDUCED HIM TO OFFER ANY BRIBES. 

THE FIRST OF THE FOUR COUNTS IN THE ENSUING INDICTMENT CHARGED THAT
AT THE MEETING OF OCTOBER 21, LOPEZ GAVE DAVIS THE $420 WITH INTENT TO
INDUCE DAVIS, AMONG OTHER THINGS, "TO REFRAIN FROM MAKING AN
EXAMINATION OF THE BOOKS AND RECORDS RELATING TO SALES AND RECEIPTS" AT
THE INN FROM 1959-1961.  (FN3)  THE REMAINING THREE COUNTS RELATED TO
THE MEETING OF OCTOBER 24, AND CHARGED THREE SEPARATE ACTS OF ATTEMPTED
BRIBERY, EACH FOR THE PURPOSE OF INFLUENCING DAVIS TO AID IN CONCEALING
SALES, RECEIPTS, AND ANY CABARET TAX DUE FOR THE YEARS 1959-1961.  THE
ACTS WERE THE GIVING OF $200 TO DAVIS (COUNT 2), THE PROMISE OF AN
ADDITIONAL $200 THE FOLLOWING MONTH (COUNT 3), AND THE PROMISE OF FREE
WEEKEND FOR DAVIS AND HIS FAMILY (COUNT 4). 

PRIOR TO THE TRIAL, PETITIONER FILED A MOTION TO SUPPRESS AS EVIDENCE
THE WIRE RECORDING OF THE OCTOBER 24 CONVERSATION BETWEEN LOPEZ AND
DAVIS.  AFTER HEARING, THIS MOTION WAS DENIED.  AT TRIAL, THE MOTION
WAS RENEWED AND AGAIN DENIED, AND THE RECORDING WAS RECEIVED IN
EVIDENCE.  PETITIONER DID NOT OBJECT TO THE TESTIMONY OF AGENT DAVIS
RELATING TO THE OCTOBER 24 CONVERSATION. 

IN HIS CHARGE TO THE JURY, THE TRIAL JUDGE EMPHASIZED THE PRESUMPTION
OF INNOCENCE AND THE BURDEN ON THE GOVERNMENT TO ESTABLISH "EVERY
ESSENTIAL ELEMENT" OF THE CRIME BEYOND A REASONABLE DOUBT.  HE THEN
DETAILED WHAT THESE ESSENTIAL ELEMENTS WERE AND CALLED PARTICULAR
ATTENTION TO THE CONTRAST BETWEEN THE SPECIFIC INTENT CHARGED IN COUNT
1 - TO PREVENT AN EXAMINATION OF BOOKS AND RECORDS - AND THE MORE
GENERAL INTENT CHARGED IN THE OTHER THREE COUNTS - TO CONCEAL LIABILITY
FOR THE TAX IN QUESTION.  HE STRONGLY SUGGESTED THAT THE SPECIFIC
INTENT ALLEGED IN COUNT 1 HAD NOT BEEN ESTABLISHED BEYOND A REASONABLE
DOUBT. 

ALTHOUGH DEFENSE COUNSEL HAD BRIEFLY ADVERTED TO THE POSSIBILITY OF
"ENTRAPMENT" IN HIS SUMMATION TO THE JURY, HE DID NOT REQUEST JUDGMENT
OF ACQUITTAL ON THAT GROUND.  NOR DID HE REQUEST ANY INSTRUCTION ON THE
POINT OR OFFER AT THE TRIAL ANY EVIDENCE PARTICULARLY AIMED AT SUCH A
DEFENSE.  NEVERTHELESS, THE TRIAL JUDGE DID CHARGE ON ENTRAPMENT. 
(FN4)  PETITIONER MADE NO OBJECTION TO THIS INSTRUCTION, OR TO ANY
OTHER ASPECT OF THE CHARGE. 

THE JURY ACQUITTED ON COUNT 1 AND FOUND PETITIONER GUILTY ON COUNTS
2, 3 AND 4.  A MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT "AS A
MATTER OF LAW ON THE EVIDENCE" WAS DENIED, AND PETITIONER WAS SENTENCED
TO A TERM OF IMPRISONMENT FOR ONE YEAR. 

FOLLOWING PER CURIAM AFFIRMANCE OF THE CONVICTION BY THE COURT OF
APPEALS FOR THE FIRST CIRCUIT, 305 F.2D 825, WE GRANTED CERTIORARI, 371
U.S. 859, TO CONSIDER THE TWO QUESTIONS STATED AT THE OUTSET OF THIS
OPINION.  SUPRA, PP. 428-429. 

      I. 

THE DEFENSE OF ENTRAPMENT, ITS MEANING, PURPOSE, AND APPLICATION, ARE
PROBLEMS THAT HAVE SHARPLY DIVIDED THIS COURT ON PAST OCCASIONS.  SEE
SORRELLS V. UNITED STATES, 287 U.S. 435; SHERMAN V. UNITED STATES, 356
U.S. 369; MASCIALE V. UNITED STATES, 356 U.S. 386.  WHETHER IN THE
ABSENCE OF A CONCLUSIVE SHOWING THE DEFENSE IS FOR THE COURT OR THE
JURY, AND WHETHER THE CONTROLLING STANDARD LOOKS ONLY TO THE CONDUCT OF
THE GOVERNMENT, OR ALSO TAKES INTO ACCOUNT THE PREDISPOSITION OF THE
DEFENDANT, ARE AMONG THE ISSUES THAT HAVE BEEN MOOTED.  WE NEED NOT,
HOWEVER, CONCERN OURSELVES WITH ANY OF THESE QUESTIONS HERE, FOR UNDER
ANY APPROACH, PETITIONER'S BELATED CLAIM OF ENTRAPMENT IS
INSUBSTANTIAL, AND THE RECORD FAILS TO SHOW ANY PREJUDICE THAT WOULD
WARRANT REVERSAL ON THIS SCORE. 

THE CONDUCT WITH WHICH THE DEFENSE OF ENTRAPMENT IS CONCERNED IS THE
MANUFACTURING OF CRIME BY LAW ENFORCEMENT OFFICIALS AND THEIR AGENTS. 
SUCH CONDUCT, OF COURSE, IS FAR DIFFERENT FROM THE PERMISSIBLE
STRATAGEMS INVOLVED IN THE DETECTION AND PREVENTION OF CRIME.  THUS
BEFORE THE ISSUE OF ENTRAPMENT CAN FAIRLY BE SAID TO HAVE BEEN
PRESENTED IN A CRIMINAL PROSECUTION THERE MUST HAVE BEEN AT LEAST SOME
SHOWING OF THE KIND OF CONDUCT BY GOVERNMENT AGENTS WHICH MAY WELL HAVE
INDUCED THE ACCUSED TO COMMIT THE CRIME CHARGED. 

IN THE CASE BEFORE US, WE THINK THAT SUCH A SHOWING HAS NOT BEEN
MADE.  IT IS UNDISPUTED THAT AT THE MEETING OF OCTOBER 21, PETITIONER
MADE AN UNSOLICITED OFFER OF $420 TO AGENT DAVIS.  THE REFERENCES TO
THE OCTOBER 21 OFFER IN THE RECORDED CONVERSATION SCARCELY LEAVE ROOM
FOR DOUBT THAT THIS OFFER WAS MADE FOR THE SAME GENERAL PURPOSE AS THE
BRIBES OFFERED AT THE OCTOBER 24 MEETING: TO OBTAIN DAVIS' ASSISTANCE
IN CONCEALING ANY CABARET TAX LIABILITY FOR PAST AND PRESENT PERIODS. 
(FN5)  AS TO THE MEETING OF OCTOBER 24, THE RECORDING SHOWS THAT
PETITIONER'S IMPROPER OVERTURES BEGAN ALMOST AT THE OUTSET OF THE
DISCUSSION, WHEN HE STATED:  "DEDUCT ANYTHING YOU THINK YOU SHOULD AND
I'LL BE HAPPY TO  ...  BECAUSE YOU MAY PREVENT SOMETHING COMING UP IN
THE OFFICE."  THIS AND SIMILAR STATEMENTS PRECEDED DAVIS' COMPUTATIONS,
(FN6) AND HIS COMMENT, "I DON'T WANT TO GET GREEDY," ON WHICH
PETITIONER SO HEAVILY RELIES.  MOREOVER, WE FIND NOTHING IN THE
RECORDING AS A WHOLE, OR IN PETITIONER'S OWN TESTIMONY, TO SUGGEST THAT
HIS CONDUCT ON OCTOBER 24 WAS INSTIGATED BY DAVIS.  UPON ANY REASONABLE
ASSESSMENT OF THE RECORD, IT SEEMS MANIFEST THAT ALL THAT DAVIS WAS
DOING WAS TO AFFORD AN OPPORTUNITY FOR THE CONTINUATION OF A COURSE OF
CRIMINAL CONDUCT, UPON WHICH THE PETITIONER HAD EARLIER VOLUNTARILY
EMBARKED, UNDER CIRCUMSTANCES SUSCEPTIBLE OF PROOF. 

IT IS THEREFORE EVIDENT THAT, UNDER ANY THEORY, ENTRAPMENT HAS NOT
BEEN SHOWN AS A MATTER OF LAW.  INDEED, THE PAUCITY OF THE SHOWING
MIGHT WELL HAVE JUSTIFIED A REFUSAL TO INSTRUCT THE JURY AT ALL ON
ENTRAPMENT.  (FN7)  BUT IN ANY EVENT NO REQUEST FOR SUCH AN INSTRUCTION
WAS MADE, AND THERE WAS NO OBJECTION TO THE INSTRUCTION GIVEN.  UNDER
THESE CIRCUMSTANCES, PETITIONER MAY NOT NOW CHALLENGE THE FORM OF THAT
INSTRUCTION.  SEE FED.  RULES CRIM. PROC., 30; (FN8) MOORE V. UNITED
STATES, 262 F.2D 216; MARTINEZ V. UNITED STATES, 300 F.2D 9.  NOR WAS
THERE ON THIS SCORE ANY SUCH PLAIN ERROR IN THE CHARGE, AFFECTING
SUBSTANTIAL RIGHTS, AS WOULD WARRANT REVERSAL DESPITE THE FAILURE TO
OBJECT.  SEE FED. RULES CRIM. PROC., 52(B).  SINCE THE RECORD DOES NOT
DISCLOSE A SUFFICIENT SHOWING THAT PETITIONER WAS INDUCED TO OFFER A
BRIBE, WE CANNOT CONCLUDE THAT HE WAS PREJUDICED BY THE CHARGE ON
BURDEN OF PROOF, EVEN ASSUMING THAT THE BURDEN CALLED FOR WAS TOO
GREAT.  BY THE SAME TOKEN, WE ARE NOT PERSUADED THAT IN THIS CASE IT IS
SIGNIFICANT TO DETERMINE WHETHER ENTRAPMENT SHOULD TURN ON THE EFFECT
OF THE GOVERNMENT'S CONDUCT ON "MEN OF ORDINARY FIRMNESS," AS THE COURT
CHARGED, OR ON THE EFFECT ON THE PARTICULAR DEFENDANT.  ACCORDINGLY, WE
DO NOT REACH THE QUESTION WHETHER THE CHARGE WAS IN EVERY RESPECT A
CORRECT STATEMENT OF THE LAW.  IT IS ENOUGH TO SAY THAT IN THE
CIRCUMSTANCES OF THIS CASE, THERE WAS IN ANY EVENT NO REVERSIBLE
ERROR.                                             II. 

PETITIONER'S REMAINING CONTENTIONS CONCERN THE ADMISSIBILITY OF THE
EVIDENCE TO HIS CONVERSATION WITH DAVIS ON OCTOBER 24.  HIS ARGUMENT IS
PRIMARILY ADDRESSED TO THE RECORDING OF THE CONVERSATION, WHICH HE
CLAIMS WAS OBTAINED IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH
AMENDMENT.  (FN9) RECOGNIZING THE WEAKNESS OF THIS POSITION IF DAVIS
WAS PROPERLY PERMITTED TO TESTIFY ABOUT THE SAME CONVERSATION,
PETITIONER NOW CHALLENGES THAT TESTIMONY AS WELL, ALTHOUGH HE FAILED TO
DO SO AT THE TRIAL.  HIS THEORY IS THAT, IN VIEW OF DAVIS' ALLEGED
FALSIFICATION OF HIS MISSION, HE GAINED ACCESS TO PETITIONER'S OFFICE
BY MISREPRESENTATION AND ALL EVIDENCE OBTAINED IN THE OFFICE, I.E., HIS
CONVERSATION WITH PETITIONER, WAS ILLEGALLY "SEIZED."  IN SUPPORT OF
THIS THEORY, HE RELIES ON GOULED V. UNITED STATES, 255 U.S. 298, AND
SILVERMAN V. UNITED STATES, 365 U.S. 505.  BUT UNDER THE CIRCUMSTANCES
OF THE PRESENT CASE, NEITHER OF THESE DECISIONS LENDS ANY COMFORT TO
PETITIONER, AND INDEED THEIR RATIONALE BUTTRESSES THE CONCLUSION THAT
THE EVIDENCE WAS PROPERLY ADMITTED.  SEE ON LEE V. UNITED STATES, 343
U.S. 747.  (FN10) 

WE NEED NOT BE LONG DETAINED BY THE BELATED CLAIM THAT DAVIS SHOULD
NOT HAVE BEEN PERMITTED TO TESTIFY ABOUT THE CONVERSATION OF OCTOBER
24.  DAVIS WAS NOT GUILTY OF AN UNLAWFUL INVASION OF PETITIONER'S
OFFICE SIMPLY BECAUSE HIS APPARENT WILLINGNESS TO ACCEPT A BRIBE WAS
NOT REAL.  COMPARE WONG SUN V. UNITED STATES, 371 U.S. 471.  HE WAS IN
THE OFFICE WITH PETITIONER'S CONSENT, AND WHILE THERE HE DID NOT
VIOLATE THE PRIVACY OF THE OFFICE BY SEIZING SOMETHING SURREPTITIOUSLY
WITHOUT PETITIONER'S KNOWLEDGE.  COMPARE GOULED V. UNITED STATES,
SUPRA.  THE ONLY EVIDENCE OBTAINED CONSISTED OF STATEMENTS MADE BY
LOPEZ TO DAVIS, STATEMENTS WHICH LOPEZ KNEW FULL WELL COULD BE USED
AGAINST HIM BY DAVIS IF HE WISHED.  WE DECLINE TO HOLD THAT WHENEVER AN
OFFER OF A BRIBE IS MADE IN PRIVATE, AND THE OFFEREE DOES NOT INTEND TO
ACCEPT, THAT OFFER IS A CONSTITUTIONALLY PROTECTED COMMUNICATION. 

ONCE IT IS PLAIN THAT DAVIS COULD PROPERLY TESTIFY ABOUT HIS
CONVERSATION WITH LOPEZ, THE CONSTITUTIONAL CLAIM RELATING TO THE
RECORDING OF THAT CONVERSATION EMERGES IN PROPER PERSPECTIVE.  THE
COURT HAS IN THE PAST SUSTAINED INSTANCES OF "ELECTRONIC EAVESDROPPING"
AGAINST CONSTITUTIONAL CHALLENGE, WHEN DEVICES HAVE BEEN USED TO ENABLE
GOVERNMENT AGENTS TO OVERHEAR CONVERSATIONS WHICH WOULD HAVE BEEN
BEYOND THE REACH OF THE HUMAN EAR.  SEE, E.G., OLMSTEAD V. UNITED
STATES, 277 U.S. 438; GOLDMAN V. UNITED STATES, 316 U.S. 129.  IT HAS
BEEN INSISTED ONLY THAT THE ELECTRONIC DEVICE NOT BE PLANTED BY AN
UNLAWFUL PHYSICAL INVASION OF A CONSTITUTIONALLY PROTECTED AREA. 
SILVERMAN V. UNITED STATES, SUPRA.  THE VALIDITY OF THESE DECISIONS IS
NOT IN QUESTION HERE.  INDEED THIS CASE INVOLVES NO "EAVESDROPPING"
WHATEVER IN ANY PROPER SENSE OF THAT TERM.  THE GOVERNMENT DID NOT USE
AN ELECTRONIC DEVICE TO LISTEN IN ON CONVERSATIONS IT COULD NOT
OTHERWISE HAVE HEARD.  INSTEAD, THE DEVICE WAS USED ONLY TO OBTAIN THE
MOST RELIABLE EVIDENCE POSSIBLE OF A CONVERSATION IN WHICH THE
GOVERNMENT'S OWN AGENT WAS A PARTICIPANT AND WHICH THAT AGENT WAS FULLY
ENTITLED TO DISCLOSE.  AND THE DEVICE WAS NOT PLANTED BY MEANS OF AN
UNLAWFUL PHYSICAL INVASION OF PETITIONER'S PREMISES UNDER CIRCUMSTANCES
WHICH WOULD VIOLATE THE FOURTH AMENDMENT.  IT WAS CARRIED IN AND OUT BY
AN AGENT WHO WAS THERE WITH PETITIONER'S ASSENT, AND IT NEITHER SAW NOR
HEARD MORE THAN THE AGENT HIMSELF. 

THE CASE IS THUS QUITE SIMILAR TO RATHBUN V. UNITED STATES, 355 U.S.
107, IN WHICH WE SUSTAINED AGAINST STATUTORY ATTACK THE ADMISSION IN
EVIDENCE OF THE TESTIMONY OF A POLICEMAN AS TO A CONVERSATION HE
OVERHEARD ON AN EXTENSION TELEPHONE WITH THE CONSENT OF A PARTY TO THE
CONVERSATION.   THE PRESENT CASE, IF ANYTHING, IS EVEN CLEARER, SINCE
IN RATHBUN IT WAS CONCEDED BY ALL CONCERNED "THAT EITHER PARTY MAY
RECORD THE CONVERSATION AND PUBLISH IT."  355 U.S., AT 110. 

STRIPPED TO ITS ESSENTIALS, PETITIONER'S ARGUMENT AMOUNTS TO SAYING
THAT HE HAS A CONSTITUTIONAL RIGHT TO RELY ON POSSIBLE FLAWS IN THE
AGENT'S MEMORY, OR TO CHALLENGE THE AGENT'S CREDIBILITY WITHOUT BEING
BESET BY CORROBORATING EVIDENCE THAT IS NOT SUSCEPTIBLE OF
IMPEACHMENT.  FOR NO OTHER ARGUMENT CAN JUSTIFY EXCLUDING AN ACCURATE
VERSION OF A CONVERSATION THAT THE AGENT COULD TESTIFY TO FROM MEMORY. 
(FN11)  WE THINK THE RISK THAT PETITIONER TOOK IN OFFERING A BRIBE TO
DAVIS FAIRLY INCLUDED THE RISK THAT THE OFFER WOULD BE ACCURATELY
REPRODUCED IN COURT, WHETHER BY FAULTLESS MEMORY OR MECHANICAL
RECORDING. 

IT IS URGED THAT WHETHER OR NOT THE RECORDING VIOLATED PETITIONER'S
CONSTITUTIONAL RIGHTS, WE SHOULD PREVENT ITS INTRODUCTION IN EVIDENCE
IN THIS FEDERAL TRIAL IN THE EXERCISE OF OUR SUPERVISORY POWERS.  BUT
THE COURT'S INHERENT POWER TO REFUSE TO RECEIVE MATERIAL EVIDENCE IS A
POWER THAT MUST BE SPARINGLY EXERCISED.  ITS APPLICATION IN THE PRESENT
CASE, WHERE THERE HAS BEEN NO MANIFESTLY IMPROPER CONDUCT BY FEDERAL
OFFICIALS, WOULD BE WHOLLY UNWARRANTED.  (FN12) 

THE FUNCTION OF A CRIMINAL TRIAL IS TO SEEK OUT AND DETERMINE THE
TRUTH OR FALSITY OF THE CHARGES BROUGHT AGAINST THE DEFENDANT.  PROPER
FULFILLMENT OF THIS FUNCTION REQUIRES THAT, CONSTITUTIONAL LIMITATIONS
ASIDE, ALL RELEVANT, COMPETENT EVIDENCE BE ADMISSIBLE, UNLESS THE
MANNER IN WHICH IT HAS BEEN OBTAINED - FOR EXAMPLE, BY VIOLATING SOME
STATUTE OR RULE OF PROCEDURE - COMPELS THE FORMULATION OF A RULE
EXCLUDING ITS INTRODUCTION IN A FEDERAL COURT.  SEE, E.G., MCNABB V.
UNITED STATES, 318 U.S. 332; MALLORY V. UNITED STATES, 354 U.S. 449. 

WHEN WE LOOK FOR THE OVERRIDING CONSIDERATIONS THAT MIGHT REQUIRE THE
EXCLUSION OF THE HIGHLY USEFUL EVIDENCE INVOLVED HERE, WE FIND
NOTHING.  THERE HAS BEEN NO INVASION OF CONSTITUTIONALLY PROTECTED
RIGHTS, AND NO VIOLATION OF FEDERAL LAWS OR RULES OF PROCEDURE. 
INDEED, THERE HAS NOT EVEN BEEN ANY ELECTRONIC EAVESDROPPING ON A
PRIVATE CONVERSATION WHICH GOVERNMENT AGENTS COULD NOT OTHERWISE HAVE
OVERHEARD.  THERE HAS, IN SHORT, BEEN NO ACT OF ANY KIND WHICH COULD
JUSTIFY THE CREATION OF AN EXCLUSIONARY RULE.  WE THEREFORE CONCLUDE
THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE AFFIRMED. 

FN1  18 U.S.C. SEC. 201 PROVIDES: 

"WHOEVER PROMISES, OFFERS, OR GIVES ANY MONEY OR THING OF VALUE  ...
TO ANY OFFICER OR EMPLOYEE OR PERSON ACTING FOR OR ON BEHALF OF THE
UNITED STATES, OR ANY DEPARTMENT OR AGENCY THEREOF, IN ANY OFFICIAL
FUNCTION  ...  WITH INTENT TO INFLUENCE HIS DECISION OR ACTION ON ANY
QUESTION, MATTER, CAUSE, OR PROCEEDING WHICH MAY AT ANY TIME BE
PENDING, OR WHICH MAY BY LAW BE BROUGHT BEFORE HIM IN HIS OFFICIAL
CAPACITY, OR IN HIS PLACE OF TRUST OR PROFIT, OR WITH INTENT TO
INFLUENCE HIM TO COMMIT OR AID IN COMMITTING, OR TO COLLUDE IN, OR
ALLOW, ANY FRAUD, OR MAKE OPPORTUNITY FOR THE COMMISSION OF ANY FRAUD,
ON THE UNITED STATES, OR TO INDUCE HIM TO DO OR OMIT TO DO ANY ACT IN
VIOLATION OF HIS LAWFUL DUTY, SHALL BE FINED NOT MORE THAN THREE TIMES
THE AMOUNT OF SUCH MONEY OR VALUE OF SUCH THING OR IMPRISONED NOT MORE
THAN THREE YEARS, OR BOTH." 

FN2  THERE HAVE BEEN NO OMISSIONS FROM THIS PASSAGE.  THE INDICATED
ELISIONS APPEAR IN THE ORIGINAL RECORD. 

FN3  COUNT 1 ALSO CHARGED THAT THE MONEY WAS GIVEN TO INDUCE DAVIS
"TO REFRAIN  ...  FROM COMPUTING A CABARET TAX ON  ...  THE BUSINESS OF
THE INN, AND FROM REPORTING SAME TO THE INTERNAL REVENUE SERVICE." 

FN4  "NOW THE LAW WITH RESPECT TO ENTRAPMENT IS THIS:  IF A
GOVERNMENT AGENT BY IMPROPER MEANS OR OVER-BEARING PERSUASION OR
WRONGFUL CONDUCT INDUCES A PERSON OF ORDINARY FIRMNESS TO COMMIT A
CRIME WHICH HE WOULD NOT OTHERWISE COMMIT, THEN UNDER THOSE
CIRCUMSTANCES THE DEFENDANT IS TO BE ACQUITTED, NOT BECAUSE HE DID NOT
DO SOMETHING WRONGFUL BUT BECAUSE HE WAS INDUCED TO DO A WRONGFUL ACT
WHICH HE WOULD NOT OTHERWISE HAVE DONE. 

"NOW NEEDLESS TO SAY IN ALL TYPES OF LAW ENFORCEMENT, PARTICULARLY
WITH RESPECT TO MATTERS INVOLVING CERTAIN TYPES OF REGULATORY STATUTES,
IT IS OFTEN DIFFICULT FOR THE GOVERNMENT TO GET EVIDENCE, AND
GOVERNMENT AGENTS MAY PROPERLY, AND WITHOUT VIOLATING THE LAW, OR THEIR
DUTY, TAKE SUCH STEPS AS MAKE IT POSSIBLE TO PROCURE EVIDENCE EVEN
THOUGH SUCH STEPS INVOLVE THEIR OWN PARTICIPATION, PROVIDED THAT THEIR
PARTICIPATION IS NOT A DELIBERATE TEMPTATION TO MEN OF ORDINARY
FIRMNESS, PROVIDED THAT THEY DO NOT CAUSE A CRIME TO BE COMMITTED BY
SOMEONE WHO DOES NOT HAVE A CRIMINAL DISPOSITION TO COMMIT THAT CRIME. 

"THE BURDEN OF PROOF WITH RESPECT TO ENTRAPMENT IS ON THE DEFENDANT. 
AND YOU ARE TO ASK YOURSELF WHETHER IN FACT ON THE EVIDENCE YOU HEARD
YOU ARE PERSUADED BY THE PREPONDERANCE OF THAT EVIDENCE THAT AGENT
DAVIS, AS IT WERE, CREATED THE CRIME AND THE TEMPTATION, AND HE, AGENT
DAVIS, WAS THE INSTIGATOR AND AUTHOR OF A CRIME THAT WOULD NEVER UNDER
ANY CIRCUMSTANCES HAVE TAKEN PLACE, HAD HE NOT USED UNFAIR MEANS." 

FN5  THAT THIS WAS THE PURPOSE OF THE OCTOBER 21 OFFER IS IN NO WAY
INCONSISTENT WITH THE VERDICT OF ACQUITTAL ON COUNT 1.  COUNT 1, AS
NOTED ABOVE, CHARGED, AMONG OTHER THINGS, A SPECIFIC INTENT TO INDUCE
THE AGENT NOT TO EXAMINE BOOKS AND RECORDS, AND THE COURT IN ITS CHARGE
ATTACHED GREAT EMPHASIS TO THE LANGUAGE OF THIS COUNT.  THUS IT MAY
WELL HAVE BEEN THAT THE ACQUITTAL ON COUNT 1 WAS BASED SOLELY ON THE
JURY'S CONCLUSION THAT THE GOVERNMENT HAD NOT PROVED THE EXISTENCE OF
THE SPECIFIC INTENT BEYOND A REASONABLE DOUBT. 

FN6  PETITIONER CLAIMS THAT DAVIS' ASSERTIONS OF THE EXISTENCE OF
CABARET TAX LIABILITY, AND OF THE EXTENT OF THAT LIABILITY, WERE SO
RECKLESSLY FALSE AS TO SUGGEST OR REQUIRE A FINDING OF ENTRAPMENT.  BUT
AS NOTED, PETITIONER'S OVERTURES PRECEDED THESE ASSERTIONS, AND IN ANY
EVENT, DAVIS HAD AMPLE BASIS FOR BELIEVING THAT TAXES WERE DUE, AND
PETITIONER NEVER UNDERTOOK TO DENY HIS LIABILITY DURING THE
CONVERSATION ON OCTOBER 24.  ALTHOUGH DAVIS CONCEDED THAT HE MAY HAVE
MADE SOME ERRORS IN COMPUTATION BECAUSE OF "NERVOUSNESS," PETITIONER IN
HIS TESTIMONY MADE NO CLAIM THAT THESE COMPUTATIONS LED TO THE BRIBE
OFFERS. 

FN7  PETITIONER DOES NOT CLAIM THAT THE ISSUE OF ENTRAPMENT SHOULD
ALWAYS BE DECIDED BY THE COURT AND NEVER SUBMITTED TO THE JURY, AND WE
ARE NOT NOW PRESENTED WITH THAT QUESTION.  SEE SHERMAN V. UNITED
STATES, 356 U.S. 369; MASCIALE V. UNITED STATES, 356 U.S. 386. 

FN8  RULE 30 PROVIDES IN PERTINENT PART: 

"NO PARTY MAY ASSIGN AS ERROR ANY PORTION OF THE CHARGE OR OMISSION
THEREFROM UNLESS HE OBJECTS THERETO BEFORE THE JURY RETIRES TO CONSIDER
ITS VERDICT, STATING DISTINCTLY THE MATTER TO WHICH HE OBJECTS AND THE
GROUNDS OF HIS OBJECTION.  OPPORTUNITY SHALL BE GIVEN TO MAKE THE
OBJECTION OUT OF THE HEARING OF THE JURY." 

FN9  THE FOURTH AMENDMENT PROVIDES:  "THE RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST
UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND NO
WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR
AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND
THE PERSONS OR THINGS TO BE SEIZED." 

FN10  IN ON LEE, THE DEFENDANT HAD BEEN INDUCED TO MAKE CERTAIN
STATEMENTS BY AN OLD ACQUAINTANCE WHO, WITHOUT THE DEFENDANT'S
KNOWLEDGE, HAD TURNED GOVERNMENT INFORMER AND WAS CARRYING A SMALL
CONCEALED MICROPHONE WHICH TRANSMITTED THE CONVERSATION TO A NARCOTICS
AGENT SOME DISTANCE AWAY.  THUS ANY DIFFERENCES BETWEEN ON LEE AND THIS
CASE CUT AGAINST THE PETITIONER. 

FN11  THE TRUSTWORTHINESS OF THE RECORDING IS NOT CHALLENGED. 

FN12  SINCE AGENT DAVIS HIMSELF TESTIFIED TO THE CONVERSATION WITH
PETITIONER WHICH WAS THE SUBJECT MATTER OF THE RECORDING, THE QUESTION
WHETHER THERE MAY BE CIRCUMSTANCES IN WHICH THE USE OF SUCH RECORDINGS
IN EVIDENCE SHOULD BE LIMITED TO PURPOSES OF "CORROBORATION" IS NOT
PRESENTED BY THIS CASE. 

MR. CHIEF JUSTICE WARREN, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT ACHIEVED BY THE COURT BUT FEEL COMPELLED TO
STATE MY VIEWS SEPARATELY.  AS POINTED OUT IN THE DISSENTING OPINION OF
MR. JUSTICE BRENNAN, THE MAJORITY OPINION MAY BE INTERPRETED AS
REAFFIRMING SUB SILENTIO THE RESULT IN ON LEE V. UNITED STATES, 343
U.S. 747.  SINCE I AGREE WITH MR. JUSTICE BRENNAN THAT ON LEE WAS
WRONGLY DECIDED AND SHOULD NOT BE REVITALIZED, BUT BASE MY VIEWS ON
GROUNDS DIFFERENT FROM THOSE STATED IN THE DISSENT, I HAVE CHOSEN TO
CONCUR SPECIALLY.  ALTHOUGH THE DISSENT ASSUMES THAT THIS CASE AND ON
LEE ARE IN ALL RESPECTS THE SAME, TO ME THEY ARE QUITE DISSIMILAR
CONSTITUTIONALLY AND FROM THE VIEWPOINT OF WHAT THIS COURT SHOULD
PERMIT UNDER ITS SUPERVISORY POWERS OVER THE ADMINISTRATION OF CRIMINAL
JUSTICE IN THE FEDERAL COURTS. 

I ALSO SHARE THE OPINION OF MR. JUSTICE BRENNAN THAT THE FANTASTIC
ADVANCES IN THE FIELD OF ELECTRONIC COMMUNICATION CONSTITUTE A GREAT
DANGER TO THE PRIVACY OF THE INDIVIDUAL; THAT INDISCRIMINATE USE OF
SUCH DEVICES IN LAW ENFORCEMENT RAISES GRAVE CONSTITUTIONAL QUESTIONS
UNDER THE FOURTH AND FIFTH AMENDMENTS; AND THAT THESE CONSIDERATIONS
IMPOSE A HEAVIER RESPONSIBILITY ON THIS COURT IN ITS SUPERVISION OF THE
FAIRNESS OF PROCEDURES IN THE FEDERAL COURT SYSTEM.  HOWEVER, I DO NOT
BELIEVE THAT, AS A RESULT, ALL USES OF SUCH DEVICES SHOULD BE
PROSCRIBED EITHER AS UNCONSTITUTIONAL OR AS UNFAIR LAW ENFORCEMENT
METHODS.  ONE OF THE LINES I WOULD DRAW WOULD BE BETWEEN THIS CASE AND
ON LEE. 

AS MR. JUSTICE HARLAN SETS OUT IN GREATER DETAIL, AGENT DAVIS, UPON
ENTERING THE PREMISES OF THE PETITIONER, GAVE FULL NOTICE OF BOTH HIS
AUTHORITY AND PURPOSE - TO INVESTIGATE POSSIBLE EVASION OR DELINQUENCY
IN THE PAYMENT OF FEDERAL TAXES.  IN THE COURSE OF THIS INVESTIGATION,
THE PETITIONER OFFERED DAVIS A BRIBE AND PROMISED MORE IN THE FUTURE IF
DAVIS WOULD CONCEAL THE FACTS OF THE PETITIONER'S TAX EVASION.  DAVIS
ACCEPTED THE MONEY AND PROMPTLY REPORTED IT TO HIS SUPERIORS.  ON A
RETURN VISIT TO THE PETITIONER'S PLACE OF BUSINESS TO COMPLETE THE
INVESTIGATION, DAVIS WAS OUTFITTED WITH A CONCEALED RECORDER TO TAPE
HIS CONVERSATION WITH THE PETITIONER.  AT TRIAL, DAVIS TESTIFIED TO
BOTH OF HIS CONVERSATIONS WITH THE PETITIONER, AND THE TAPE RECORDING
WAS INTRODUCED TO CORROBORATE THIS TESTIMONY.  THE PETITIONER DID NOT
CLAIM HE WAS ENTRAPPED INTO THE BRIBERY OR THAT THE PURPOSE OF THE
INVESTIGATION FROM THE START WAS TO INDUCE THE BRIBE.  ON THE CONTRARY,
HE ADMITTED GIVING THE MONEY TO DAVIS BUT CLAIMED THAT IT WAS FOR THE
PURPOSE OF HAVING THE LATTER PREPARE HIS TAX RETURN.  THE ONLY PURPOSE
THE RECORDING SERVED WAS TO PROTECT THE CREDIBILITY OF DAVIS AGAINST
THAT OF A MAN WHO WISHED TO CORRUPT A PUBLIC SERVANT IN THE PERFORMANCE
OF HIS PUBLIC TRUST.  I FIND NOTHING UNFAIR IN THIS PROCEDURE.  TAX
AGENTS LIKE AGENT DAVIS ARE REQUIRED TO EXAMINE THE TAX RETURNS OF
SUSPECTED TAX EVADERS AS A NECESSARY PART OF OUR NATIONAL TAXATION
SYSTEM.  MANY OF THESE TAXPAYERS INTERVIEWED ARE INTEGRAL PARTS OF THE
UNDERWORLD.  IN THE PERFORMANCE OF THEIR DUTY, AGENTS ARE THUS OFTEN
FACED WITH SITUATIONS WHERE PROOF OF AN ATTEMPTED BRIBE WILL BE A
MATTER OF THEIR WORD AGAINST THAT OF THE TAX EVADER AND PERHAPS SOME OF
HIS ASSOCIATES.  THEY SHOULD NOT BE DEFENSELESS AGAINST OUTRIGHT
DENIALS OR CLAIMS OF ENTRAPMENT, CLAIMS WHICH, IF NOT OPEN TO
CONCLUSIVE REFUTATION, WILL UNDERMINE THE REPUTATION OF THE INDIVIDUAL
AGENT FOR HONESTY AND THE PUBLIC'S CONFIDENCE IN HIS WORK.  WHERE
CONFRONTED WITH SUCH A SITUATION, IT IS ONLY FAIR THAT AN AGENT BE
PERMITTED TO SUPPORT HIS CREDIBILITY WITH A RECORDING AS AGENT DAVIS
DID IN THIS CASE. 

ON LEE, HOWEVER, IS A COMPLETELY DIFFERENT STORY.  WHEN ON LEE WAS
ARRESTED, THE ONLY DIRECT EVIDENCE THAT HE WAS ENGAGED IN THE
DISTRIBUTION OF OPIUM WAS THE UNRELIABLE TESTIMONY OF AN ALLEGED
ACCOMPLICE WHO HANDLED THE CONTACTS WITH PURCHASERS AND HAD MADE THE
MISTAKE OF SELLING TO AN UNDERCOVER NARCOTICS AGENT.  TO STRENGTHEN ITS
CASE AGAINST ON LEE, THE GOVERNMENT SENT A "SPECIAL EMPLOYEE," ONE CHIN
POY, INTO ON LEE'S LAUNDRY ARMED WITH A CONCEALED TRANSMITTER, ON LEE
BEING OUT ON BAIL PENDING INDICTMENT AT THE TIME.  CHIN POY HAD KNOWN
ON LEE FOR 16 YEARS AND HAD FORMERLY BEEN HIS EMPLOYEE.  HIS CRIMINAL
CHARACTER IS EXPOSED BY THE FAMILIARITY WITH WHICH HE AND ON LEE
DISCUSSED THE NARCOTICS TRAFFIC AND THE AGREEMENT OF THE LATTER TO
SUPPLY HIM WITH NARCOTICS AT HIS REQUEST IN THE FUTURE.  THUS, CHIN
POY, ARMED WITH THE TRANSMITTER, ENGAGED ON LEE IN CONVERSATION FOR THE
PURPOSE OF ELICITING ADMISSIONS THAT ON LEE WAS PART OF AN OPIUM
SYNDICATE AND TO ENCOURAGE HIM TO COMMIT ANOTHER CRIME.  AT TRIAL,
INSTEAD OF CALLING CHIN POY TO TESTIFY, THE GOVERNMENT PUT ON THE
NARCOTICS AGENT WHO HAD BEEN AT THE RECEIVING END OF THE RADIO CONTACT
WITH CHIN POY TO TESTIFY TO THE ADMISSIONS MADE BY ON LEE, TESTIMONY
THAT LED DIRECTLY TO CONVICTION. 

THE USE AND PURPOSE OF THE TRANSMITTER IN ON LEE WAS SUBSTANTIALLY
DIFFERENT FROM THE USE OF THE RECORDER HERE.  ITS ADVANTAGE WAS NOT TO
CORROBORATE THE TESTIMONY OF CHIN POY, BUT RATHER, TO OBVIATE THE NEED
TO PUT HIM ON THE STAND.  THE COURT IN ON LEE ITSELF STATED: 

"WE CAN ONLY SPECULATE ON THE REASONS WHY CHIN POY WAS NOT CALLED. 
IT SEEMS A NOT UNLIKELY ASSUMPTION THAT THE VERY DEFECTS OF CHARACTER
AND BLEMISHES OF RECORD WHICH MADE ON LEE TRUST HIM WITH CONFIDENCES
WOULD MAKE A JURY DISTRUST HIS TESTIMONY.  CHIN POY WAS CLOSE ENOUGH TO
THE UNDERWORLD TO SERVE AS BAIT, NEAR ENOUGH THE CRIMINAL DESIGN SO
THAT PETITIONER WOULD EMBRACE HIM AS A CONFIDANTE, BUT TOO CLOSE TO IT
FOR THE GOVERNMENT TO VOUCH FOR HIM AS A WITNESS.  INSTEAD, THE
GOVERNMENT CALLED AGENT LEE." 

HOWEVER, THERE WERE FURTHER ADVANTAGES IN NOT USING CHIN POY.  HAD
CHIN POY BEEN AVAILABLE FOR CROSS-EXIMINATION, COUNSEL FOR ON LEE COULD
HAVE EXPLORED THE NATURE OF CHIN POY'S FRIENDSHIP WITH ON LEE, THE
POSSIBILITY OF OTHER UNMONITORED CONVERSATIONS AND APPEALS TO
FRIENDSHIP, THE POSSIBILITY OF ENTRAPMENTS, POLICE PRESSURE BROUGHT TO
BEAR TO PERSUADE CHIN POY TO TURN INFORMER, AND CHIN POY'S OWN
RECOLLECTION OF THE CONTENTS OF THE CONVERSATION.  HIS TESTIMONY MIGHT
NOT ONLY HAVE SERIOUSLY DISCREDITED THE PROSECUTION, BUT MIGHT ALSO
HAVE RAISED QUESTIONS OF CONSTITUTIONAL PROPORTIONS.  THIS COURT HAS
NOT YET ESTABLISHED THE LIMITS WITHIN WHICH THE POLICE MAY USE AN
INFORMER TO APPEAL TO FRIENDSHIP AND CAMARADERIE-IN-CRIME TO INDUCE
ADMISSIONS FROM A SUSPECT, BUT SUFFICE IT TO SAY HERE, THE ISSUE IS
SUBSTANTIAL.  WE HAVE ALREADY STRUCK DOWN THE USE OF PSYCHOLOGICAL
PRESSURES AND APPEALS TO FRIENDSHIP TO INDUCE ADMISSIONS OR CONFESSIONS
UNDER NOT TOTALLY DISSIMILAR CIRCUMSTANCES.  LEYRA V. DENNO, 347 U.S.
556; SPANO V. NEW YORK, 360 U.S. 315.  (FN1)  YET THE FACT REMAINS THAT
WITHOUT THE TESTIMONY OF CHIN POY, COUNSEL FOR ON LEE COULD NOT DEVELOP
A RECORD SUFFICIENT TO RAISE AND PRESENT THE ISSUE FOR DECISION, AND
THE COURTS COULD NOT EVALUATE THE FULL IMPACT OF SUCH PRACTICES UPON
THE RIGHTS OF AN ACCUSED OR UPON THE ADMINISTRATION OF CRIMINAL
JUSTICE.  (FN2) 

IT IS NO ANSWER TO SAY THAT THE DEFENSE CAN CALL AN INFORMER SUCH AS
CHIN POY AS A HOSTILE WITNESS.  THE PROSECUTION MAY HAVE AN INTEREST IN
CONCEALING HIS IDENTITY OR WHEREABOUTS.  ROVIARO V. UNITED STATES, 353
U.S. 53.  HE MAY BE SO UNDEPENDABLE AND DISREPUTABLE THAT NO DEFENSE
COUNSEL WOULD RISK PUTTING HIM ON THE STAND.  MOREOVER, AS A DEFENSE
WITNESS, HE WOULD BE OPEN TO IMPEACHMENT BY THE GOVERNMENT, HIS LATE
EMPLOYER.  THE TACTICAL POSSIBILITIES OF THIS SITUATION WOULD BE
APPARENT TO A PROSECUTOR BENT ON OBTAINING CONVICTION.  THROUGH USE OF
A RECORDER OR TRANSMITTER, HE MAY PLACE IN THE CASE-IN-CHIEF EVIDENCE
OF STATEMENTS SUPPORTING CONVICTION WHICH IS NOT OPEN TO IMPEACHMENT. 
AND IF NOT REQUIRED TO CALL THE INFORMER, HE MAY PLACE ON THE DEFENSE
THE ONUS OF FINDING AND CALLING A DISREPUTABLE WITNESS WHO, IF CALLED,
MAY BE IMPEACHED ON ALL COLLATERAL ISSUES FAVORING THE DEFENSE.  THE
EFFECT ON LAW ENFORCEMENT PRACTICES NEED HARDLY BE STATED:  THE MORE
DISREPUTABLE THE INFORMER EMPLOYED BY THE GOVERNMENT, THE LESS LIKELY
THE ACCUSED WILL BE ABLE TO ESTABLISH ANY QUESTIONABLE LAW ENFORCEMENT
METHODS USED TO CONVICT HIM. 

THUS WHILE I JOIN THE COURT IN PERMITTING THE USE OF ELECTRONIC
DEVICES TO CORROBORATE AN AGENT UNDER THE PARTICULAR FACTS OF THIS
CASE, I CANNOT SANCTION BY IMPLICATION THE USE OF THESE SAME DEVICES TO
RADICALLY SHIFT THE PATTERN OF PRESENTATION OF EVIDENCE IN THE CRIMINAL
TRIAL, A SHIFT THAT MAY BE USED TO CONCEAL SUBSTANTIAL FACTUAL AND
LEGAL ISSUES CONCERNING THE RIGHTS OF THE ACCUSED AND THE
ADMINISTRATION OF CRIMINAL JUSTICE.  (FN3)  CF. ON LEE V. UNITED
STATES, 343 U.S. 747, 758 (BLACK, J., DISSENTING). 

FN1  THE FACTS IN ON LEE MAY ALSO HAVE INVOLVED A RIGHT TO COUNSEL
ISSUE.  THE NEW YORK COURT OF APPEALS HAS RECENTLY RULED THAT AFTER A
PERSON HAS BEEN ARRAIGNED, ANY STATEMENT OBTAINED OUTSIDE THE PRESENCE
OF HIS COUNSEL AND WITHOUT ADVICE AS TO HIS RIGHTS IS INADMISSIBLE AT
TRIAL SINCE THE PETITIONER IS ENTITLED TO THE PRESENCE OF COUNSEL AT
EVERY STAGE IN THE PROCEEDINGS AFTER ARRAIGNMENT.  PEOPLE V. MEYER, 11
N.Y.2D 162, 182 N.E.2D 103; CF. GIDEON V. WAINWRIGHT, 372 U.S. 335;
SPANO V. NEW YORK, SUPRA, P. 324 (DOUGLAS, J., CONCURRING).  THE
STATEMENT IN MEYER WAS MADE TO A POLICE OFFICER VOLUNTARILY AND WITHOUT
SOLICITATION WHILE MEYER WAS ON BAIL AWAITING SUBMISSION ON HIS CASE TO
THE GRAND JURY.  PRESUMABLY, ANY AGENT OF THE PROSECUTOR WOULD BE
CIRCUMSCRIBED BY THIS RULE WHETHER HE BE A "SPECIAL EMPLOYEE" LIKE CHIN
POY OR A PATROLMAN ON THE BEAT. 

FN2  WHERE THE SIMILAR DEFENSE OF ENTRAPMENT HAS BEEN INVOLVED, CROSS
EXAMINATION OF THE GOVERNMENT INFORMER HAS INVARIABLY BEEN CRITICAL TO
THE DEFENSE.  SEE SHERMAN V. UNITED STATES, 356 U.S. 369, 371-375.  HAD
THE GOVERNMENT BEEN ABLE TO LIMIT ITS CASE IN SHERMAN TO RECORDINGS OF
THE FINAL MEETINGS BETWEEN THE INFORMER AND THE PETITIONER WHEREIN THE
ILLEGAL SALES WERE CONSUMMATED, THE RECORD WOULD NEVER HAVE REVEALED
THE LONG SERIES OF MEETINGS INDUCING THE PETITIONER TO MAKE THESE
SALES.  THE OFFICERS IN CHARGE WERE APPARENTLY UNAWARE THEY HAD EVER
TAKEN PLACE.  356 U.S., AT 374-375. 

FN3  IF A PARTY WERE TO SHOW THAT THE INTERESTS OF JUSTICE IN A
PARTICULAR CASE SO REQUIRE, THE COURT SHOULD CONSIDER LIMITING THE USE
OF EVIDENCE OBTAINED BY MEANS OF A RECORDER OR TRANSMITTER OR
CORROBORATION OF A WITNESS WHO WAS A PARTY TO THE CONVERSATION IN
QUESTION.  TO SO CONDITION THE USE OF EVIDENCE IN THE FEDERAL COURTS IS
CLEARLY WITHIN THE POWER OF THIS COURT.  AS THE COURT STATED IN MCNABB
V. UNITED STATES, 318 U.S. 332, 341: 

"IN THE EXERCISE OF ITS SUPERVISORY AUTHORITY OVER THE ADMINISTRATION
OF CRIMINAL JUSTICE IN THE FEDERAL COURTS, SEE NARDONE V. UNITED
STATES, 308 U.S. 338, 341-42, THIS COURT HAS, FROM THE VERY BEGINNING
OF ITS HISTORY, FORMULATED RULES OF EVIDENCE TO BE APPLIED IN FEDERAL
CRIMINAL PROSECUTIONS.  ...  (COLLECTING AUTHORITY.)  AND IN
FORMULATING SUCH RULES OF EVIDENCE FOR FEDERAL CRIMINAL TRIALS THE
COURT HAS BEEN GUIDED BY CONSIDERATIONS OF JUSTICE NOT LIMITED TO THE
STRICT CANONS OF EVIDENTIARY RELEVANCE." 

SEE UPSHAW V. UNITED STATES, 335 U.S. 410, 414-416 (DISSENTING
OPINION); RULE 26, FEDERAL RULES OF CRIMINAL PROCEDURE.  IN MCNABB
ITSELF, THE PURPOSE OF THE EXCLUSIONARY RULE ADOPTED WAS TO ELIMINATE
ALL INCENTIVE TO ENGAGE IN LAW ENFORCEMENT PRACTICES UNIVERSALLY
CONDEMNED - USE OF THE "THIRD DEGREE" TO OBTAIN CONFESSIONS IMMEDIATELY
AFTER ARREST. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
GOLDBERG JOIN, DISSENTING. 

IN ON LEE V. UNITED STATES, 343 U.S. 747, THE COURT SUSTAINED THE
ADMISSION IN EVIDENCE OF THE TESTIMONY OF A FEDERAL AGENT AS TO
INCRIMINATING STATEMENTS MADE BY THE ACCUSED, A LAUNDRYMAN, ON TRIAL
FOR NARCOTICS OFFENSES.  THE STATEMENTS WERE MADE BY THE ACCUSED WHILE
AT LARGE ON BAIL PENDING TRIAL IN A CONVERSATION IN HIS SHOP WITH AN
ACQUAINTANCE AND FORMER EMPLOYEE, WHO, UNKNOWN TO THE ACCUSED, WAS A
GOVERNMENT INFORMER AND CARRIED A RADIO TRANSMITTER CONCEALED ON HIS
PERSON.  THE FEDERAL AGENT, EQUIPPED WITH A RADIO RECEIVER TUNED TO THE
TRANSMITTER, HEARD THE TRANSMITTED CONVERSATION WHILE STANDING ON THE
SIDEWALK OUTSIDE THE LAUNDRY.  THE COURT REJECTED ARGUMENTS INVOKING
THE FOURTH AMENDMENT AND OUR SUPERVISORY POWER AGAINST THE
ADMISSIBILITY OF THE AGENT'S TESTIMONY.  I BELIEVE THAT THAT DECISION
WAS ERROR, IN REASON AND AUTHORITY, AT THE TIME IT WAS DECIDED; THAT
SUBSEQUENT DECISIONS AND SUBSEQUENT EXPERIENCE HAVE SAPPED WHATEVER
VITALITY IT MAY ONCE HAVE HAD; THAT IT SHOULD NOW BE REGARDED AS
OVERRULED; THAT THE INSTANT CASE IS RATIONALLY INDISTINGUISHABLE; AND
THAT, THEREFORE, WE SHOULD REVERSE THE JUDGMENT BELOW. 

        I. 

THE UNITED STATES IN ITS BRIEF AND ORAL ARGUMENT BEFORE THIS COURT IN
THE INSTANT CASE MADE LITTLE EFFORT TO JUSTIFY THE RESULT IN ON LEE,
DOUBTLESS BECAUSE IT REALIZES THAT THAT DECISION HAS LOST VIRTUALLY ALL
ITS FORCE AS AUTHORITY.  INSTEAD, THE GOVERNMENT SEEKS TO DISTINGUISH
THE INSTANT CASE.  THIS STRATEGY HAS SUCCEEDED, IT APPEARS, WITH A
MAJORITY OF MY BRETHREN.  THE COURT'S REFUSAL TO ACCORD MORE THAN
PASSING MENTION IN ITS OPINION TO THE ONLY DECISION OF THIS COURT - ON
LEE - FACTUALLY ANALOGOUS TO THE CASE AT BAR SUGGESTS VERY STRONGLY
THAT SOME OF MY COLLEAGUES WHO HAVE JOINED THE COURT'S OPINION TODAY
AGREE WITH US THAT ON LEE SHOULD BE CONSIDERED A DEAD LETTER.  FOR THE
COURT, RATHER THAN FOLLOW ON LEE, HAS ADOPTED THE SUBSTANCE OF THE
GOVERNMENT'S ATTEMPTED DISTINCTION BETWEEN ON LEE AND THE INSTANT
CASE. 

THE GOVERNMENT ARGUES AS FOLLOWS:  "PETITIONER CAN HARDLY COMPLAIN
THAT HIS SECRET THOUGHTS WERE UNFAIRLY EXTRACTED FROM HIM, FOR THEY
WERE, FROM THE BEGINNING, INTENDED TO BE PUT INTO WORDS, AND TO BE
COMMUNICATED TO THE VERY AUDITOR WHO HEARD THEM."  THIS ARGUMENT HAS
TWO PRONGS AND I TAKE THE SECOND FIRST.  TO BE SURE, THERE WERE TWO
AUDITORS IN ON LEE - THE INFORMER AND THE FEDERAL AGENT OUTSIDE.  BUT
EQUALLY ARE THERE TWO AUDITORS HERE - THE FEDERAL AGENT AND THE
MINIFON.  IN ON LEE, THE INFORMER WAS THE VEHICLE WHEREBY THE ACCUSED'S
STATEMENTS WERE TRANSMITTED TO A THIRD PARTY, WHOSE SUBSEQUENT
TESTIMONY WAS EVIDENCE OF THE STATEMENTS.  SO HERE, THE INTENDED
AUDITOR, AGENT DAVIS, WAS THE VEHICLE ENABLING THE MINIFON TO RECORD
PETITIONER'S STATEMENTS IN A FORM THAT COULD BE, AND WAS, OFFERED AS
EVIDENCE THEREOF. 

THE GOVERNMENT WOULD HAVE IT THAT THE "HUMAN WITNESS (DAVIS) ACTUALLY
TESTIFIES AND THE MACHINE MERELY REPEATS AND CORROBORATES HIS
NARRATIVE."  BUT IT CAN MAKE NO DIFFERENCE THAT DAVIS DID, AND THE
INFORMER IN ON LEE DID NOT, HIMSELF TESTIFY; FOR THE CHALLENGED
EVIDENCE, THE MINIFON RECORDING, IS INDEPENDENT EVIDENCE OF THE
STATEMENTS TO WHICH DAVIS ALSO TESTIFIED.  A MECHANICAL RECORDING IS
NOT EVIDENCE THAT IS MERELY REPETITIVE OR CORROBORATIVE OF HUMAN
TESTIMONY.  TO BE SURE, IT MUST BE AUTHENTICATED BEFORE IT CAN BE
INTRODUCED.  BUT ONCE IT IS AUTHENTICATED, ITS CREDIBILITY DOES NOT
DEPEND UPON THE CREDIBILITY OF THE HUMAN WITNESS.  THEREIN DOES A
MECHANICAL RECORDING OF A CONVERSATION DIFFER FUNDAMENTALLY FROM, FOR
EXAMPLE, NOTES THAT ONE OF THE PARTIES TO THE CONVERSATION MAY HAVE
TAKEN.  A TRIER OF FACT CREDITS THE NOTES ONLY INSOFAR AS HE CREDITS
THE NOTETAKER.  BUT HE CREDITS THE MINIFON RECORDING NOT BECAUSE HE
BELIEVES DAVIS ACCURATELY TESTIFIED AS TO LOPEZ' STATEMENTS BUT BECAUSE
HE BELIEVES THE MINIFON ACCURATELY TRANSCRIBED THOSE STATEMENTS.   THIS
DISTINCTION IS WELL SETTLED IN THE LAW OF EVIDENCE, AND IT HAS BEEN
HELD THAT MINIFON RECORDINGS ARE INDEPENDENT THIRD-PARTY EVIDENCE. 
MONROE V. UNITED STATES, 98 U.S. APP. D.C. 228, 233-234, 234 F.2D 49,
54-55.  (FN1)    THE OTHER HALF OF THE GOVERNMENT'S ARGUMENT IS THAT
LOPEZ SURRENDERED HIS RIGHT OF PRIVACY WHEN HE COMMUNICATED HIS "SECRET
THOUGHTS" TO AGENT DAVIS.  THE ASSUMPTION, MANIFESTLY UNTENABLE, IS
THAT THE FOURTH AMENDMENT IS ONLY DESIGNED TO PROTECT SECRECY.  IF A
PERSON COMMITS HIS SECRET THOUGHTS TO PAPER, THAT IS NO LICENSE FOR THE
POLICE TO SEIZE THE PAPER; IF A PERSON COMMUNICATES HIS SECRET THOUGHTS
VERBALLY TO ANOTHER, THAT IS NO LICENSE FOR THE POLICE TO RECORD THE
WORDS.  SILVERMAN V. UNITED STATES, 365 U.S. 505.  ON LEE CERTAINLY
RESTED ON NO SUCH THEORY OF WAIVER.  THE RIGHT OF PRIVACY WOULD MEAN
LITTLE IF IT WERE LIMITED TO A PERSON'S SOLITARY THOUGHTS, AND SO
FOSTERED SECRETIVENESS.  IT MUST EMBRACE A CONCEPT OF THE LIBERTY OF
ONE'S COMMUNICATIONS, AND HISTORICALLY IT HAS.  "THE COMMON LAW SECURES
TO EACH INDIVIDUAL THE RIGHT OF DETERMINING, ORDINARILY, TO WHAT EXTENT
HIS THOUGHTS, SENTIMENTS, AND EMOTIONS SHALL BE COMMUNICATED TO OTHERS
...  AND EVEN IF HE HAD CHOSEN TO GIVE THEM EXPRESSION, HE GENERALLY
RETAINS THE POWER TO FIX THE LIMITS OF THE PUBLICITY WHICH SHALL BE
GIVEN THEM."  WARREN AND BRANDEIS, THE RIGHT TO PRIVACY, 4 HARV. L.
REV. 193, 198 (1890). 

THAT IS NOT TO SAY THAT ALL COMMUNICATIONS ARE PRIVILEGED.  ON LEE
ASSUMED THE RISK THAT HIS ACQUAINTANCE WOULD DIVULGE THEIR
CONVERSATION; LOPEZ ASSUMED THE SAME RISK VIS-A-VIS DAVIS.  THE RISK
INHERES IN ALL COMMUNICATIONS WHICH ARE NOT IN THE SIGHT OF THE LAW
PRIVILEGED.  IT IS NOT AN UNDUE RISK TO ASK PERSONS TO ASSUME, FOR IT
DOES NO MORE THAN COMPEL THEM TO USE DISCRETION IN CHOOSING THEIR
AUDITORS, TO MAKE DAMAGING DISCLOSURES ONLY TO PERSONS WHOSE CHARACTER
AND MOTIVES MAY BE TRUSTED.  BUT THE RISK WHICH BOTH ON LEE AND TODAY'S
DECISION IMPOSE IS OF A DIFFERENT ORDER.   IT IS THE RISK THAT THIRD
PARTIES, WHETHER MECHANICAL AUDITORS LIKE THE MINIFON OR HUMAN
TRANSCRIBERS OF MECHANICAL TRANSMISSIONS AS IN ON LEE - THIRD PARTIES
WHO CANNOT BE SHUT OUT OF A CONVERSATION AS CONVENTIONAL EAVESDROPPERS
CAN BE, MERELY BY A LOWERING OF VOICES, OR WITHDRAWING TO A PRIVATE
PLACE - MAY GIVE INDEPENDENT EVIDENCE OF ANY CONVERSATION.  THERE IS
ONLY ONE WAY TO GUARD AGAINST SUCH RISK, AND THAT IS TO KEEP ONE'S
MOUTH SHUT ON ALL OCCASIONS. 

IT IS NO ANSWER TO SAY THAT THERE IS NO SOCIAL INTEREST IN
ENCOURAGING LOPEZ TO OFFER BRIBES TO FEDERAL AGENTS.  NEITHER IS THERE
A SOCIAL INTEREST IN ALLOWING A MURDERER TO CONCEAL THE MURDER WEAPON
IN HIS HOME.  BUT THERE IS A RIGHT OF LIBERTY OF COMMUNICATIONS AS OF
POSSESSIONS, AND THE RIGHT CAN ONLY BE SECURE IF ITS LIMITATIONS ARE
DEFINED WITHIN A FRAMEWORK OF PRINCIPLE.  THE FOURTH AMENDMENT DOES NOT
FORBID ALL SEARCHES, BUT IT DEFINES THE LIMITS AND CONDITIONS OF
PERMISSIBLE SEARCHES; THE COMPELLED DISCLOSURE OF PRIVATE
COMMUNICATIONS BY ELECTRONIC MEANS OUGHT EQUALLY TO BE SUBJECT TO LEGAL
REGULATION.  AND IF THIS PRINCIPLE IS GRANTED, I SEE NO REASONED BASIS
FOR REACHING DIFFERENT RESULTS DEPENDING UPON WHETHER THE CONVERSATION
IS WITH A PRIVATE PERSON, WITH A FEDERAL UNDERCOVER AGENT (ON LEE), OR
WITH AN AVOWED FEDERAL AGENT, AS HERE. 

THE CHIEF JUSTICE, CONCURRING IN THE COURT'S RESULT, SUGGESTS TWO
FURTHER DISTINCTIONS BETWEEN ON LEE AND THE INSTANT CASE:  FIRST, THE
AGENT DAVIS, IN CARRYING A CONCEALED RECORDING DEVICE, WAS LEGITIMATELY
SEEKING TO PROTECT HIS REPUTATION AS AN HONEST PUBLIC SERVANT; AND
SECOND, THAT IN THE INSTANT CASE, UNLIKE ON LEE, ELECTRONICALLY
OBTAINED EVIDENCE WAS NOT USED SO AS TO CIRCUMVENT THE PRODUCTION OF
THE KEY GOVERNMENT WITNESS.  I ADMIT THERE ARE DIFFERENCES, BUT I DO
NOT SEE HOW THEY BEAR UPON THE PROBLEM OF THE CASE BEFORE US, WHICH IS
THE ADMISSIBILITY IN A FEDERAL CRIMINAL TRIAL OF THE FRUITS OF
SURREPTITIOUS ELECTRONIC SURVEILLANCE.  WHETHER A FEDERAL TAX AGENT, IN
ORDER TO CONVINCE HIS SUPERIORS THAT HE WAS INDEED OFFERED THE BRIBE
AND DID NOT SOLICIT IT, OUGHT TO BE PERMITTED TO CARRY A MINIFON ON HIS
PERSON IS A SEPARATE QUESTION FROM WHETHER THE RECORDING MADE BY THE
MINIFON IS CONSTITUTIONALLY PERMISSIBLE EVIDENCE IN A FEDERAL CRIMINAL
TRIAL; I TAKE IT LOPEZ WOULD HAVE NO STANDING TO CHALLENGE THE USE OF
SUCH RECORDINGS SAVE IN A PROSECUTION OR OTHER PROCEEDING AGAINST HIM. 
AND WHETHER IT IS UNFAIR FOR THE GOVERNMENT TO INTRODUCE ELECTRONIC
EVIDENCE WITHOUT PUTTING THE HUMAN AGENT OF TRANSMISSION ON THE STAND
SEEMS TO ME TO IMPLICATE CONSIDERATIONS WHICH HAVE NOTHING TO DO WITH
THE PRINCIPLE OF INDIVIDUAL FREEDOM ENSHRINED IN THE FOURTH AMENDMENT. 
ON LEE'S TRIAL MAY WELL HAVE BEEN LESS FAIR THAN LOPEZ' BECAUSE OF THE
WITHHOLDING OF THE GOVERNMENT INFORMER AS A WITNESS.  BUT THE INVASION
OF FREEDOM WAS IN BOTH CASES THE SAME:  THE SECRET ELECTRONIC
TRANSMISSION OR RECORDING OF PRIVATE COMMUNICATIONS, LOPEZ' TO DAVIS
AND ON LEE'S TO THE UNDERCOVER AGENT. 

II. 

IF ON LEE AND THE INSTANT CASE ARE IN PRINCIPLE INDISTINGUISHABLE,
THE QUESTION OF THE CONTINUED VALIDITY OF THE COURT'S POSITION IN ON
LEE IS INESCAPABLY BEFORE US.  BUT WE CANNOT APPROACH THE QUESTION
PROPERLY WITHOUT FIRST CLEARING AWAY ANOTHER BIT OF UNDERBRUSH:  THE
SUGGESTION THAT THE RIGHT OF PRIVACY IS LOST NOT BY THE SPEAKER'S
GIVING VERBAL FORM TO HIS SECRET THOUGHTS, BUT BY THE AUDITOR'S
CONSENTING TO AN ELECTRONIC TRANSCRIPTION OF THE SPEAKER'S WORDS.  THE
SUGGESTION IS AN OPEN INVITATION TO LAW ENFORCEMENT OFFICERS TO USE
CAT'S-PAWS AND DECOYS IN CONJUNCTION WITH ELECTRONIC EQUIPMENT, AS IN
ON LEE.  MORE IMPORTANT, IT INVOKES A FICTIVE SENSE OF WAIVER WHOLLY
INCOMPATIBLE WITH ANY MEANINGFUL CONCEPT OF LIBERTY OF COMMUNICATION. 
IF A PERSON MUST ALWAYS BE ON HIS GUARD AGAINST HIS AUDITOR'S HAVING
AUTHORIZED A SECRET RECORDING OF THEIR CONVERSATION, HE WILL BE NO LESS
RELUCTANT TO SPEAK FREELY THAN IF HIS RISK IS THAT A THIRD PARTY IS
DOING THE RECORDING.  SURELY HIGH GOVERNMENT OFFICIALS ARE NOT THE ONLY
PERSONS WHO FIND IT ESSENTIAL TO BE ABLE TO SAY THINGS "OFF THE
RECORD."  I BELIEVE THAT THERE IS A GRAVE DANGER OF CHILLING ALL
PRIVATE, FREE, AND UNCONSTRAINED COMMUNICATION IF SECRET RECORDINGS,
TURNED OVER TO LAW ENFORCEMENT OFFICERS BY ONE PARTY TO A CONVERSATION,
ARE COMPETENT EVIDENCE OF ANY SELF-INCRIMINATING STATEMENTS THE SPEAKER
MAY HAVE MADE.  IN A FREE SOCIETY, PEOPLE OUGHT NOT TO HAVE TO WATCH
THEIR EVERY WORD SO CAREFULLY. 

NOTHING IN RATHBUN V. UNITED STATES, 355 U.S. 107, IS TO THE
CONTRARY.  WE HELD IN THAT CASE THAT EVIDENCE OBTAINED BY POLICE
OFFICERS' LISTENING IN TO A TELEPHONE CONVERSATION ON AN EXISTING
EXTENSION WITH THE CONSENT OF ONE OF THE PARTIES, WHO WAS ALSO THE
SUBSCRIBER TO THE EXTENSION, DID NOT VIOLATE THE FEDERAL WIRETAPPING
ACT, 47 U.S.C. SEC. 605.  THE DECISION WAS A NARROW ONE.  THE GRANT OF
CERTIORARI WAS LIMITED TO THE QUESTION OF STATUTORY CONSTRUCTION, AND
NEITHER THE MAJORITY NOR DISSENTING OPINION DISCUSSES ANY OTHER
POSSIBLE BASIS FOR EXCLUDING THE EVIDENCE.  FURTHERMORE, AS THE COURT
WAS CAREFUL TO EMPHASIZE, EXTENSION PHONES ARE IN COMMON USE, SO COMMON
THAT IT IS A NORMAL RISK OF TELEPHONING THAT MORE THAN ONE PERSON MAY
BE LISTENING IN AT THE RECEIVER'S END.  THE EXTENSION TELEPHONE BY
MEANS OF WHICH RATHBUN'S STATEMENTS WERE HEARD HAD NOT BEEN SPECIALLY
INSTALLED FOR LAW ENFORCEMENT PURPOSES, AND NO ATTEMPT WAS MADE TO
TRANSCRIBE THE PHONE CONVERSATION ELECTRONICALLY.  THUS IN THE COURT'S
VIEW WIRETAPPING IN THE CONVENTIONAL SENSE WAS NOT INVOLVED AND SEC.
605 HAD NO APPLICATION.  IT SHOULD ALSO BE POINTED OUT THAT WHILE IT IS
A VERY SERIOUS INCONVENIENCE TO BE INHIBITED FROM SPEAKING FREELY OVER
THE TELEPHONE, IT PERHAPS IS A FAR GRAVER DANGER TO A FREE SOCIETY IF A
PERSON IS INHIBITED FROM SPEAKING OUT IN HIS HOME OR OFFICE.  (FN2)

III. 

THE QUESTION BEFORE US COMES DOWN TO WHETHER THERE IS A LEGAL BASIS,
EITHER IN THE FOURTH AMENDMENT OR IN THE SUPERVISORY POWER, (FN3) FOR
EXCLUDING FROM FEDERAL CRIMINAL TRIALS THE FRUITS OF SURREPTITIOUS
ELECTRONIC SURVEILLANCE BY FEDERAL AGENTS. 

HISTORY AND THE TEXT OF THE CONSTITUTION POINT THE TRUE PATH TO THE
ANSWER.  IN THE CELEBRATED CASE OF ENTICK V. CARRINGTON, 19 HOWELL'S
STATE TRIALS 1029 (C.P. 1765), LORD CAMDEN LAID DOWN TWO DISTINCT
PRINCIPLES:  THAT GENERAL SEARCH WARRANTS ARE UNLAWFUL BECAUSE OF THEIR
UNCERTAINTY; AND THAT SEARCHES FOR EVIDENCE ARE UNLAWFUL BECAUSE THEY
INFRINGE THE PRIVILEGE AGAINST SELF-INCRIMINATION.  (FN4)  LORD
CAMDEN'S DOUBLE FOCUS WAS CARRIED OVER INTO THE STRUCTURE OF THE FOURTH
AMENDMENT.  SEE LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION (1937), 103; FRAENKEL,
CONCERNING SEARCHES AND SEIZURES, 34 HARV. L. REV. 361, 366 (1921). 
(FN5)  THE TWO CLAUSES OF THE AMENDMENT ARE IN THE CONJUNCTIVE, AND
PLAINLY HAVE DISTINCT FUNCTIONS.  THE WARRANT CLAUSE WAS AIMED
SPECIFICALLY AT THE EVIL OF THE GENERAL WARRANT, OFTEN REGARDED AS THE
SINGLE IMMEDIATE CAUSE OF THE AMERICAN REVOLUTION.  (FN6)  BUT THE
FIRST CLAUSE EMBODIES A MORE ENCOMPASSING PRINCIPLE.  IT IS, IN LIGHT
OF THE ENTICK DECISION, THAT GOVERNMENT OUGHT NOT TO HAVE THE
UNTRAMMELED RIGHT TO EXTRACT EVIDENCE FROM PEOPLE.  THUS VIEWED, THE
FOURTH AMENDMENT IS COMPLEMENTARY TO THE FIFTH.  FELDMAN V. UNITED
STATES, 322 U.S. 487, 489-490.  THE INFORMING PRINCIPLE OF BOTH
AMENDMENTS IS NOTHING LESS THAN A COMPREHENSIVE RIGHT OF PERSONAL
LIBERTY IN THE FACE OF GOVERNMENTAL INTRUSION. 

AND SO THIS COURT HELD IN BOYD V. UNITED STATES, 116 U.S. 616, "A
CASE THAT WILL BE REMEMBERED AS LONG AS CIVIL LIBERTY LIVES IN THE
UNITED STATES" (BRANDEIS, J., DISSENTING IN OLMSTEAD V. UNITED STATES,
277 U.S. 438, 474): 

"THE PRINCIPLES LAID DOWN IN THIS OPINION (ENTICK V. CARRINGTON)
AFFECT THE VERY ESSENCE OF CONSTITUTIONAL LIBERTY AND SECURITY.  THEY
REACH FARTHER THAN THE CONCRETE FORM OF THE CASE THEN BEFORE THE COURT,
WITH ITS ADVENTITIOUS CIRCUMSTANCES; THEY APPLY TO ALL INVASIONS ON THE
PART OF THE GOVERNMENT AND ITS EMPLOYES OF THE SANCTITY OF A MAN'S HOME
AND THE PRIVACIES OF LIFE.  IT IS NOT THE BREAKING OF HIS DOORS, AND
THE RUMMAGING OF HIS DRAWERS, THAT CONSTITUTES THE ESSENCE OF THE
OFFENCE; BUT IT IS THE INVASION OF HIS INDEFEASIBLE RIGHT OF PERSONAL
SECURITY, PERSONAL LIBERTY AND PRIVATE PROPERTY, WHERE THAT RIGHT HAS
NEVER BEEN FORFEITED BY HIS CONVICTION OF SOME PUBLIC OFFENCE, - IT IS
THE INVASION OF THIS SACRED RIGHT WHICH UNDERLIES AND CONSTITUTES THE
ESSENCE OF LORD CAMDEN'S JUDGMENT.  BREAKING INTO A HOUSE AND OPENING
BOXES AND DRAWERS ARE CIRCUMSTANCES OF AGGRAVATION; BUT ANY FORCIBLE
AND COMPULSORY EXTORTION OF A MAN'S OWN TESTIMONY OR OF HIS PRIVATE
PAPERS TO BE USED AS EVIDENCE TO CONVICT HIM OF CRIME OR TO FORFEIT HIS
GOODS, IS WITHIN THE CONDEMNATION OF THAT JUDGMENT.  IN THIS REGARD THE
FOURTH AND FIFTH AMENDMENTS RUN ALMOST INTO EACH OTHER."  116 U.S., AT
630. 

THE COURT IN BOYD SET ITS FACE AGAINST A NARROWLY LITERAL CONCEPTION
OF "SEARCH AND SEIZURE," INSTEAD READING THE FOURTH AND FIFTH
AMENDMENTS TOGETHER AS CREATING A BROAD RIGHT TO INVIOLATE
PERSONALITY.  BOYD ITSELF WAS NOT A SEARCH AND SEIZURE CASE IN THE
CONVENTIONAL SENSE, BUT INVOLVED AN ORDER TO COMPEL PRODUCTION OF
DOCUMENTS IN THE NATURE OF A SUBPOENA DUCES TECUM.  AND BOYD HAD BEEN
PRECEDED BY EX PARTE JACKSON, 96 U.S. 727, 735, IN WHICH THE COURT HAD
CLEARLY INTIMATED THAT A STATUTE PERMITTING GOVERNMENT OFFICIALS TO
OPEN LETTERS IN THE MAIL WOULD VIOLATE THE FOURTH AMENDMENT.  SEE ALSO
HOOVER V. MCCHESNEY, 81 F. 472 (CIR. CT. D. KY. 1897). 

THE AUTHORITY OF THE BOYD DECISION HAS NEVER BEEN IMPEACHED.  ITS
BASIC PRINCIPLE, THAT THE FOURTH AND FIFTH AMENDMENTS INTERACT TO
CREATE A COMPREHENSIVE RIGHT OF PRIVACY, OF INDIVIDUAL FREEDOM, HAS
BEEN REPEATEDLY APPROVED IN THE DECISIONS OF THIS COURT.  (FN7)  THUS
WE HAVE HELD THAT THE GIST OF THE FOURTH AMENDMENT IS "THE SECURITY OF
ONE'S PRIVACY AGAINST ARBITRARY INTRUSION BY THE POLICE."  WOLF V.
COLORADO, 338 U.S. 25, 27; STEFANELLI V. MINARD, 342 U.S. 117, 119;
FRANK V. MARYLAND, 359 U.S. 360, 362.  ONLY TWO TERMS AGO, IN
REAFFIRMING THAT THE FOURTH AMENDMENT'S "RIGHT TO PRIVACY" IS A "BASIC
CONSTITUTIONAL RIGHT," MAPP V. OHIO, 367 U.S. 643, 656, WE REMARKED THE
"'INTIMATE RELATION'" BETWEEN THE FOURTH AND FIFTH AMENDMENTS.  ID., AT
657.  SO ALSO, THE COURT'S INSISTENCE THAT THE FOURTH AMENDMENT IS TO
BE LIBERALLY CONSTRUED, E.G., BYARS V. UNITED STATES, 273 U.S. 28, 32;
UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 464; GRAU V. UNITED STATES,
287 U.S. 124, THAT SEARCHES FOR AND SEIZURES OF MERE EVIDENCE AS
OPPOSED TO THE FRUITS OR INSTRUMENTALITIES OF CRIME ARE IMPERMISSIBLE
UNDER ANY CIRCUMSTANCES, E.G., UNITED STATES V. LEFKOWITZ, SUPRA, AT
464-466; HARRIS V. UNITED STATES, 331 U.S. 145, 154; ABEL V. UNITED
STATES, 362 U.S. 217, 237-238, AND THAT THE FOURTH AMENDMENT IS
VIOLATED WHETHER THE SEARCH OR SEIZURE IS ACCOMPLISHED BY FORCE, BY
SUBTERFUGE, GOULED V. UNITED STATES, 255 U.S. 298, 306; SEE, E.G.,
GATEWOOD V. UNITED STATES, 209 F.2D 789; FRATERNAL ORDER OF EAGLES V.
UNITED STATES, 209 F.2D 93; UNITED STATES V. GENERAL PHARMACAL CO., 205
F. SUPP. 692; UNITED STATES V. BUSH, 172 F. SUPP. 818; UNITED STATES V.
RECKIS, 119 F. SUPP. 687; UNITED STATES V. MITCHNECK, 2 F. SUPP. 225;
BUT SEE UNITED STATES V. BUSH, 283 F.2D 51, REVERSING 172 F. SUPP. 818,
BY AN INVALID SUBPOENA, SEE E.G. HALE V. HENKEL, 201 U.S. 43, 76;
FEDERAL TRADE COMM'N V. AMERICAN TOBACCO CO., 264 U.S. 298; BROWN V.
UNITED STATES, 276 U.S. 134, OR OTHERWISE, SEE E.G., WAKKURI V. UNITED
STATES, 67 F.2D 844, IS CONFIRMATION THAT THE PURPOSE OF THE AMENDMENT
IS TO PROTECT INDIVIDUAL LIBERTY IN THE BROADEST SENSE FROM
GOVERNMENTAL INTRUSION.   AND SEE POE V. ULLMAN, 367 U.S. 497, 549-552
(DISSENTING OPINION).    IT IS AGAINST THIS BACKGROUND THAT WE MUST
APPRAISE OLMSTEAD V. UNITED STATES, SUPRA, WHERE THE COURT, OVER THE
DISSENTS OF JUSTICES HOLMES, BRANDEIS, STONE, AND BUTLER, HELD THAT THE
FRUITS OF WIRETAPPING BY FEDERAL OFFICERS WERE ADMISSIBLE AS EVIDENCE
IN FEDERAL CRIMINAL TRIALS.  THE COURT'S HOLDING, WHICH IS FULLY
PERTINENT HERE, (FN8) RESTED ON THE PROPOSITIONS THAT THERE HAD BEEN NO
SEARCH BECAUSE NO TRESPASS HAD BEEN COMMITTED AGAINST THE PETITIONERS
AND NO SEIZURE BECAUSE NO PHYSICAL EVIDENCE HAD BEEN OBTAINED, THUS
MAKING THE FOURTH AMENDMENT INAPPLICABLE; AND THAT EVIDENCE WAS NOT
INADMISSIBLE IN FEDERAL CRIMINAL TRIALS MERELY BECAUSE OBTAINED BY
FEDERAL OFFICERS BY METHODS VIOLATIVE OF STATE LAW OR OTHERWISE
UNETHICAL.    WHEN THE COURT FIRST CONFRONTED THE PROBLEM OF ELECTRONIC
SURVEILLANCE APART FROM WIRETAPPING, OLMSTEAD WAS DEEMED TO CONTROL,
FIVE MEMBERS OF THE COURT DECLINING TO REEXAMINE THE SOUNDNESS OF THAT
DECISION.  GOLDMAN V. UNITED STATES, 316 U.S. 129.  IN TURN, OLMSTEAD
AND GOLDMAN WERE DEEMED TO COMPEL THE RESULT IN ON LEE.  BUT CF. NOTE
10, INFRA.  THE INSTANT CASE, TOO, HINGES ON THE SOUNDNESS AND
CONTINUED AUTHORITY OF THE OLMSTEAD DECISION.  I THINK IT IS
DEMONSTRABLE THAT OLMSTEAD WAS ERRONEOUSLY DECIDED, THAT ITS AUTHORITY
HAS BEEN STEADILY SAPPED BY SUBSEQUENT DECISIONS OF THE COURT, AND THAT
IT AND THE CASES FOLLOWING IT ARE SPORTS IN OUR JURISPRUDENCE WHICH
OUGHT TO BE ELIMINATED. 

(1)  OLMSTEAD'S ILLIBERAL INTERPRETATION OF THE FOURTH AMENDMENT AS
LIMITED TO THE TANGIBLE FRUITS OF ACTUAL TRESPASSES WAS A DEPARTURE
FROM THE COURT'S PREVIOUS DECISIONS, NOTABLY BOYD, AND A MISREADING OF
THE HISTORY AND PURPOSE OF THE AMENDMENT.  SUCH A LIMITATION CANNOT BE
SQUARED WITH A MEANINGFUL RIGHT TO INVIOLATE PERSONAL LIBERTY.  IT
CANNOT EVEN BE JUSTIFIED AS A "LITERAL" READING OF THE FOURTH
AMENDMENT.  "IN EVERY-DAY TALK, AS OF 1789 OR NOW, A MAN 'SEARCHES'
WHEN HE LOOKS OR LISTENS.  THUS WE FIND REFERENCES IN THE BIBLE TO
'SEARCHING' THE SCRIPTURES (JOHN V, 39); IN LITERATURE TO A MAN
'SEARCHING' HIS HEART OR CONSCIENCE; IN THE LAW BOOKS TO 'SEARCHING' A
PUBLIC RECORD.  NONE OF THESE ACTS REQUIRES A MANUAL RUMMAGING FOR
CONCEALED OBJECTS  ...  .  JUST AS LOOKING AROUND A ROOM IS SEARCHING,
LISTENING TO THE SOUNDS IN A ROOM IS SEARCHING.  SEEING AND HEARING ARE
BOTH REACTIONS OF A HUMAN BEING TO THE PHYSICAL ENVIRONMENT AROUND HIM
TO LIGHT WAVES IN ONE INSTANCE, TO SOUND WAVES IN THE OTHER.  AND,
ACCORDINGLY, USING A MECHANICAL AID TO EITHER SEEING OR HEARING IS ALSO
A FORM OF SEARCHING.  THE CAMERA AND THE DICTAPHONE BOTH DO THE WORK OF
THE ENDORGANS OF AN INDIVIDUAL HUMAN SEARCHER - MORE ACCURATELY." 
UNITED STATES V. ON LEE, 193 F.2D 306, 313 (FRANK, J., DISSENTING). 

(2)  AS CONSTITUTIONAL EXPOSITION, MOREOVER, THE OLMSTEAD DECISION IS
INSUPPORTABLE.  THE CONSTITUTION WOULD BE AN UTTERLY IMPRACTICAL
INSTRUMENT OF CONTEMPORARY GOVERNMENT IF IT WERE DEEMED TO REACH ONLY
PROBLEMS FAMILIAR TO THE TECHNOLOGY OF THE EIGHTEENTH CENTURY; YET THE
COURT IN OLMSTEAD REFUSED TO APPLY THE FOURTH AMENDMENT TO WIRETAPPING
SEEMINGLY BECAUSE THE FRAMERS OF THE CONSTITUTION HAD NOT BEEN
FARSIGHTED ENOUGH TO FORSEE THE INVENTION OF THE TELEPHONE. 

(3)  THE COURT'S ILLIBERAL APPROACH IN OLMSTEAD WAS A DEVIANT IN THE
LAW OF THE FOURTH AMENDMENT AND NOT A HARBINGER OF DECISIONAL
REVOLUTION.  THE COURT HAS NOT ONLY CONTINUED TO REITERATE ITS
ADHERENCE TO THE PRINCIPLES OF THE BOYD DECISION, SEE, E.G., MAPP V.
OHIO, SUPRA, BUT TO REQUIRE THAT SUBPOENAS DUCES TECUM COMPLY WITH THE
FOURTH AMENDMENT, SEE UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321
U.S. 707, 727-728; OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327 U.S.
186; MCPHAUL V. UNITED STATES, 364 U.S. 372, 382-383 - A REQUIREMENT
PATENTLY INCONSISTENT WITH A GRUDGING, NARROW CONCEPTION OF "SEARCHES
AND SEIZURES." 

(4)  SPECIFICALLY, THE COURT IN THE YEARS SINCE OLMSTEAD HAS SEVERED
BOTH SUPPORTS FOR THAT DECISION'S INTERPRETATION OF THE FOURTH
AMENDMENT.  WE HAVE HELD THAT THE FRUITS OF ELECTRONIC SURVEILLANCE,
THOUGH INTANGIBLE, NEVERTHELESS ARE WITHIN THE REACH OF THE AMENDMENT. 
IRVINE V. CALIFORNIA, 347 U.S. 128; SILVERMAN V. UNITED STATES, 365
U.S. 505; (FN9) LANZA V. NEW YORK, 370 U.S. 139, 142.  INDEED, ONLY THE
OTHER DAY WE REAFFIRMED THAT VERBAL FRUITS, EQUALLY WITH PHYSICAL, ARE
WITHIN THE FOURTH.  WONG SUN V. UNITED STATES, 371 U.S. 471, 485-486. 
SO TOO, THE COURT HAS REFUSED TO CROWD THE FOURTH AMENDMENT INTO THE
MOLD OF LOCAL PROPERTY LAW, CHAPMAN V. UNITED STATES, 365 U.S. 610,
617; JONES V. UNITED STATES, 362 U.S. 257, 266; UNITED STATES V.
JEFFERS, 342 U.S. 48; MCDONALD V. UNITED STATES, 335 U.S. 451, 454, AND
HAS EXPRESSLY HELD, IN A CASE VERY CLOSE ON ITS FACTS TO THAT AT BAR,
THAT AN ACTUAL TRESPASS NEED NOT BE SHOWN IN ORDER TO SUPPORT A
VIOLATION OF THE FOURTH AMENDMENT.  SILVERMAN V. UNITED STATES, SUPRA,
AT 511.  (FN10) 

(5)  INSOFAR AS OLMSTEAD RESTS ON THE NOTION THAT THE FEDERAL COURTS
MAY NOT EXCLUDE EVIDENCE, NO MATTER HOW OBTAINED, UNLESS ITS ADMISSION
IS SPECIFICALLY MADE ILLEGAL BY FEDERAL STATUTE OR BY THE CONSTITUTION,
THE DECISION IS MANIFESTLY INCONSISTENT WITH WHAT HAS COME TO BE
REGARDED AS THE SCOPE OF THE SUPERVISORY POWER OVER FEDERAL LAW
ENFORCEMENT.  SEE, E.G., MCNABB V. UNITED STATES, 318 U.S. 332; UPSHAW
V. UNITED STATES, 335 U.S. 410; REA V. UNITED STATES, 350 U.S. 214;
MALLORY V. UNITED STATES, 354 U.S. 449; MORGAN, THE LAW OF EVIDENCE,
1941-1945, 59 HARV. L. REV. 481, 537 (1946).  WE ARE EMPOWERED TO
FASHION RULES OF EVIDENCE FOR FEDERAL CRIMINAL TRIALS IN CONFORMITY
WITH "THE PRINCIPLES OF THE COMMON LAW AS THEY MAY BE INTERPRETED  ...
IN THE LIGHT OF REASON AND EXPERIENCE."  RULE 26, FEDERAL RULES OF
CRIMINAL PROCEDURE.  EVEN IF ELECTRONIC SURVEILLANCE AS HERE INVOLVED
DOES NOT VIOLATE THE LETTER OF THE FOURTH AMENDMENT, WHICH I DO NOT
CONCEDE, IT VIOLATES ITS SPIRIT, AND WE OUGHT TO DEVISE AN APPROPRIATE
PROPHYLACTIC RULE.  THE COURT'S SUGGESTION THAT THE SUPERVISORY POWER
MAY NEVER BE INVOKED TO CREATE AN EXCLUSIONARY RULE OF EVIDENCE UNLESS
THERE HAS BEEN A VIOLATION OF A SPECIFIC FEDERAL LAW OR RULE OF
PROCEDURE IS, TO ME, A GRATUITOUS ATTEMPT TO CRIPPLE THAT POWER.  AND I
DO NOT SEE HOW IT CAN BE RECONCILED WITH OUR MANDATE TO FASHION RULES
CONFORMABLE TO EVOLVING COMMON LAW PRINCIPLES. 

(6)  THE OLMSTEAD DECISION CAUSED SUCH WIDESPREAD DISSATISFACTION
THAT CONGRESS IN EFFECT OVERRULED IT BY ENACTING SEC. 605 OF THE
FEDERAL COMMUNICATIONS ACT, WHICH MADE WIRETAPPING A FEDERAL CRIME.  WE
HAVE CONSISTENTLY GIVEN SEC. 605 A GENEROUS CONSTRUCTION, SEE NARDONE
V. UNITED STATES, 302 U.S. 379; WEISS V. UNITED STATES, 308 U.S. 321;
NARDONE V. UNITED STATES, 308 U.S. 338; BENANTI V. UNITED STATES, 355
U.S. 96, RECOGNIZING THAT CONGRESS HAD BEEN CONCERNED TO PREVENT
"RESORT TO METHODS DEEMED INCONSISTENT WITH ETHICAL STANDARDS AND
DESTRUCTIVE OF PERSONAL LIBERTY."  NARDONE (I), SUPRA, AT 383; SEE
GOLDSTEIN V. UNITED STATES, 316 U.S. 114, 120.  TO BE SURE, SEC. 605,
BEING DIRECTED TO THE SPECIFIC PRACTICE SANCTIONED BY OLMSTEAD,
WIRETAPPING, DOES NOT OF ITS OWN FORCE FORBID THE ADMISSION IN EVIDENCE
OF THE FRUITS OF OTHER TECHNIQUES OF ELECTRONIC SURVEILLANCE.  BUT A
CONGRESSIONAL ENACTMENT IS A SOURCE OF JUDICIAL POLICY AS WELL AS A
SPECIFIC MANDATE TO BE ENFORCED, AND THE SAME "BROAD CONSIDERATIONS OF
MORALITY AND PUBLIC WELL-BEING," NARDONE (II), AT 340, WHICH MAKE
WIRETAP EVIDENCE INADMISSIBLE IN THE FEDERAL COURTS EQUALLY JUSTIFY A
COURT-MADE RULE EXCLUDING THE FRUITS OF SUCH DEVISED AS THE MINIFON. 
IT IS ANOMALOUS THAT THE FEDERAL COURTS, WHILE ENFORCING THE RIGHT TO
PRIVACY WITH RESPECT TO TELEPHONE COMMUNICATIONS, RECOGNIZE NO SUCH
RIGHT WITH RESPECT TO COMMUNICATIONS WHOLLY WITHIN THE SANCTUARIES OF
HOME AND OFFICE. 

                              IV. 

IF WE WANT TO UNDERSTAND WHY THE COURT, IN OLMSTEAD, GOLDMAN AND ON
LEE, CARVED SUCH SEEMINGLY ANOMALOUS EXCEPTIONS TO THE GENERAL
PRINCIPLES WHICH HAVE GUIDED THE COURT IN ENFORCING THE FOURTH
AMENDMENT, WE MUST CONSIDER TWO FACTORS NOT OFTEN ARTICULATED IN THE
DECISIONS.  THE FIRST IS THE PERVASIVE FEAR THAT IF ELECTRONIC
SURVEILLANCE WERE DEEMED TO BE WITHIN THE REACH OF THE FOURTH
AMENDMENT, A USEFUL TECHNIQUE OF LAW ENFORCEMENT WOULD BE WHOLLY
DESTROYED, BECAUSE AN ELECTRONIC "SEARCH" COULD NEVER BE REASONABLE
WITHIN THE MEANING OF THE AMENDMENT.  SEE NOTE, THE SUPREME COURT, 1960
TERM, 75 HARV. L. REV. 40, 187 (1961).  FOR ONE THING, ELECTRONIC
SURVEILLANCE IS ALMOST INHERENTLY INDISCRIMINATE, SO THAT COMPLIANCE
WITH THE REQUIREMENT OF PARTICULARITY IN THE FOURTH AMENDMENT WOULD BE
DIFFICULT; FOR ANOTHER, WORDS, WHICH ARE THE OBJECTS OF AN ELECTRONIC
SEIZURE, ARE ORDINARILY MERE EVIDENCE AND NOT THE FRUITS OR
INSTRUMENTALITIES OF CRIME, AND SO THEY ARE IMPERMISSIBLE OBJECTS OF
LAWFUL SEARCHES UNDER ANY CIRCUMSTANCES, SEE PP. 456-457, SUPRA;
FINALLY, THE USEFULNESS OF ELECTRONIC SURVEILLANCE DEPENDS ON LACK OF
NOTICE TO THE SUSPECT. 

BUT THE ARGUMENT IS UNCONVINCING.  IF IN FACT NO WARRANT COULD BE
DEVISED FOR ELECTRONIC SEARCHES, THAT WOULD BE A COMPELLING REASON FOR
FORBIDDING THEM ALTOGETHER.  THE REQUIREMENTS OF THE FOURTH AMENDMENT
ARE NOT TECHNICAL OR UNREASONABLY STRINGENT; THEY ARE THE BEDROCK RULES
WITHOUT WHICH THERE WOULD BE NO EFFECTIVE PROTECTION OF THE RIGHT TO
PERSONAL LIBERTY.  A SEARCH FOR MERE EVIDENCE OFFENDS THE FUNDAMENTAL
PRINCIPLE AGAINST SELF-INCRIMINATION, AS LORD CAMDEN CLEARLY
RECOGNIZED; A MERELY EXPLORATORY SEARCH REVIVES THE EVILS OF THE
GENERAL WARRANT, SO BITTERLY OPPOSED BY THE AMERICAN REVOLUTIONARIES;
AND WITHOUT SOME FORM OF NOTICE, POLICE SEARCHES BECAME INTOLERABLE
INTRUSIONS INTO THE PRIVACY OF HOME OR OFFICE.  ELECTRONIC SEARCHES
CANNOT BE TOLERATED IN THE NAME OF LAW ENFORCEMENT IF THEY ARE
INHERENTLY UNCONSTITUTIONAL. 

BUT IN ANY EVENT, IT IS PREMATURE TO CONCLUDE THAT NO WARRANT FOR AN
ELECTRONIC SEARCH CAN POSSIBLY BE DEVISED.  THE REQUIREMENTS OF THE
FOURTH AMENDMENT ARE NOT INFLEXIBLE, OR OBTUSELY UNYIELDING TO THE
LEGITIMATE NEEDS OF LAW ENFORCEMENT.  IT IS AT LEAST CLEAR THAT "THE
PROCEDURE OF ANTECEDENT JUSTIFICATION BEFORE A MAGISTRATE THAT IS
CENTRAL TO THE FOURTH AMENDMENT," OHIO EX REL. EATON V. PRICE, 364 U.S.
263, 272 (SEPARATE OPINION); SEE MCDONALD V. UNITED STATES, 335 U.S.
451, 455; ABEL V. UNITED STATES, 362 U.S. 217, 251-252 (DISSENTING
OPINION), COULD BE MADE A PRECONDITION OF LAWFUL ELECTRONIC
SURVEILLANCE.  AND THERE HAVE BEEN NUMEROUS SUGGESTIONS OF WAYS IN
WHICH ELECTRONIC SEARCHES COULD BE MADE TO COMPLY WITH THE OTHER
REQUIREMENTS OF THE FOURTH AMENDMENT.  (FN11) 

THIS IS NOT TO SAY THAT A WARRANT THAT WILL PASS MUSTER CAN ACTUALLY
BE DEVISED.  IT IS NOT THE BUSINESS OF THIS COURT TO PASS UPON
HYPOTHETICAL QUESTIONS, AND THE QUESTION OF THE CONSTITUTIONALITY OF
WARRANTS FOR ELECTRONIC SURVEILLANCE IS AT THIS STAGE PURELY
HYPOTHETICAL.  BUT IT IS IMPORTANT THAT THE QUESTION IS STILL AN OPEN
ONE.  UNTIL THE COURT HOLDS INADMISSIBLE THE FRUITS OF AN ELECTRONIC
SEARCH MADE, AS IN THE INSTANT CASE, WITH NO ATTEMPT WHATEVER TO COMPLY
WITH THE REQUIREMENTS OF THE FOURTH AMENDMENT, THERE WILL BE NO
INCENTIVE TO SEEK AN IMAGINATIVE SOLUTION WHEREBY THE RIGHTS OF
INDIVIDUAL LIBERTY AND THE NEEDS OF LAW ENFORCEMENT ARE FAIRLY
ACCOMMODATED. 

THE SECOND FACTOR THAT MAY BE A SIGNIFICANT THOUGH UNARTICULATED
PREMISE OF OLMSTEAD AND THE CASES FOLLOWING IT IS WELL EXPRESSED BY THE
GOVERNMENT IN THE INSTANT CASE: "IF THE AGENT'S RELATIVELY INNOCUOUS
CONDUCT HERE IS FOUND OFFENSIVE, A FORTIORI, THE WHOLE GAMUT OF
INVESTIGATORIAL TECHNIQUES INVOLVING MORE SERIOUS DECEPTION MUST ALSO
BE CONDEMNED.  POLICE OFFICERS COULD THEN NO LONGER EMPLOY CONFIDENTIAL
INFORMANTS, ACT AS UNDERCOVER AGENTS, OR EVEN WEAR 'PLAIN CLOTHES.'" 
BUT THIS ARGUMENT MISSES THE POINT.  IT IS NOT AGENT DAVIS' DECEPTION
THAT OFFENDS CONSTITUTIONAL PRINCIPLES, BUT HIS USE OF AN ELECTRONIC
DEVICE TO PROBE AND RECORD WORDS SPOKEN IN THE PRIVACY OF A MAN'S
OFFICE.  FOR THERE IS A QUALITATIVE DIFFERENCE BETWEEN ELECTRONIC
SURVEILLANCE, WHETHER THE AGENTS CONCEAL THE DEVICES ON THEIR PERSONS
OR IN WALLS OR UNDER BEDS, AND CONVENTIONAL POLICE STRATAGEMS SUCH AS
EAVESDROPPING AND DISGUISE.  THE LATTER DO NOT SO SERIOUSLY INTRUDE
UPON THE RIGHT OF PRIVACY.  THE RISK OF BEING OVERHEARD BY AN
EAVESDROPPER OR BETRAYED BY AN INFORMER OR DECEIVED AS TO THE IDENTITY
OF ONE WITH WHOM ONE DEALS IS PROBABLY INHERENT IN THE CONDITIONS OF
HUMAN SOCIETY.  IT IS THE KIND OF RISK WE NECESSARILY ASSUME WHENEVER
WE SPEAK.  BUT AS SOON AS ELECTRONIC SURVEILLANCE COMES INTO PLAY, THE
RISK CHANGES CRUCIALLY.  THERE IS NO SECURITY FROM THAT KIND OF
EAVESDROPPING, NO WAY OF MITIGATING THE RISK, AND SO NOT EVEN A
RESIDUUM OF TRUE PRIVACY.  SEE PP. 449-451, SUPRA.  (FN12) 

FURTHERMORE, THE FACT THAT THE POLICE TRADITIONALLY ENGAGE IN SOME
RATHER DISREPUTABLE PRACTICES OF LAW ENFORCEMENT IS NO ARGUMENT FOR
THEIR EXTENSION.  EAVESDROPPING WAS INDICTABLE AT COMMON LAW (FN13) AND
MOST OF US WOULD STILL AGREE THAT IT IS AN UNSAVORY PRACTICE.  THE
LIMITATIONS OF HUMAN HEARING, HOWEVER, DIMINISH ITS POTENTIALITY FOR
HARM.  ELECTRONIC AIDS ADD A WHOLLY NEW DIMENSION TO EAVESDROPPING. 
THEY MAKE IT MORE PENETRATING, MORE INDISCRIMINATE, MORE TRULY
OBNOXIOUS TO A FREE SOCIETY.  ELECTRONIC SURVEILLANCE, IN FACT, MAKES
THE POLICE OMNISCIENT; AND POLICE OMNISCIENCE IS ONE OF THE MOST
EFFECTIVE TOOLS OF TYRANNY. 

                        V. 

THE FOREGOING ANALYSIS DISCLOSES NO ADEQUATE JUSTIFICATION FOR
EXCEPTING ELECTRONIC SEARCHES AND SEIZURES FROM THE REQUIREMENTS OF THE
FOURTH AMENDMENT.  BUT TO STATE THE CASE THUS IS TO STATE IT TOO
NEGATIVELY.  IT IS TO IGNORE THE POSITIVE REASONS FOR BRINGING
ELECTRONIC SURVEILLANCE UNDER JUDICIAL REGULATION.  NOT ONLY HAS THE
PROBLEM GROWN ENORMOUSLY IN RECENT YEARS, SEE, E.G., TODISCO V. UNITED
STATES, 298 F.2D 208; UNITED STATES V. KABOT, 295 F.2D 848, BUT ITS
TRUE DIMENSIONS HAVE ONLY RECENTLY BECOME APPARENT FROM EMPIRICAL
STUDIES NOT AVAILABLE WHEN OLMSTEAD, GOLDMAN, AND ON LEE WERE DECIDED. 
THE COMPREHENSIVE STUDY BY SAMUEL DASH AND HIS ASSOCIATES AS WELL AS A
NUMBER OF LEGISLATIVE INQUIRIES (FN14) REVEALS THESE TRULY TERRIFYING
FACTS:  (1) ELECTRONIC EAVESDROPPING BY MEANS OF CONCEALED MICROPHONES
AND RECORDING DEVICES OF VARIOUS KINDS HAS BECOME AS LARGE A PROBLEM AS
WIRETAPPING, AND IS PERVASIVELY EMPLOYED BY PRIVATE DETECTIVES, POLICE,
LABOR SPIES, EMPLOYERS AND OTHERS FOR A VARIETY OF PURPOSES, SOME
DOWNRIGHT DISREPUTABLE.  (FN15)  (2) THESE DEVICES GO FAR BEYOND SIMPLE
"BUGGING," AND PERMIT A DEGREE OF INVASION OF PRIVACY THAT CAN ONLY BE
DESCRIBED AS FRIGHTENING.  (FN16)  (3) FAR FROM PROVIDING UNIMPEACHABLE
EVIDENCE, THE DEVICES LEND THEMSELVES TO DIABOLICAL FAKERY.  (FN17)
(4) A NUMBER OF STATES HAVE BEEN IMPELLED TO ENACT REGULATORY
LEGISLATION.  (FN18)  (5) THE LEGITIMATE LAW ENFORCEMENT NEED FOR SUCH
TECHNIQUES IS NOT CLEAR, (FN19) AND IT SURELY HAS NOT BEEN ESTABLISHED
THAT A STIFF WARRANT REQUIREMENT FOR ELECTRONIC SURVEILLANCE WOULD
DESTROY EFFECTIVE LAW ENFORCEMENT. 

BUT EVEN WITHOUT EMPIRICAL STUDIES, IT MUST BE PLAIN THAT ELECTRONIC
SURVEILLANCE IMPORTS A PECULIARLY SEVERE DANGER TO THE LIBERTIES OF THE
PERSON.  TO BE SECURE AGAINST POLICE OFFICERS' BREAKING AND ENTERING TO
SEARCH FOR PHYSICAL OBJECTS IS WORTH VERY LITTLE IF THERE IS NO
SECURITY AGAINST THE OFFICERS' USING SECRET RECORDING DEVICES TO
PURLOIN WORDS SPOKEN IN CONFIDENCE WITHIN THE FOUR WALLS OF HOME OR
OFFICE.  OUR POSSESSIONS ARE OF LITTLE VALUE COMPARED TO OUR
PERSONALITIES.  AND WE MUST BEAR IN MIND THAT HISTORICALLY THE SEARCH
AND SEIZURE POWER WAS USED TO SUPPRESS FREEDOM OF SPEECH AND OF THE
PRESS, SEE LASSON, SUPRA, AT 33, 37-50; MARCUS V. SEARCH WARRANT, 367
U.S. 717, 724-729; FRANK V. MARYLAND, 359 U.S. 360, 376 (DISSENTING
OPINION), AND THAT TODAY, ALSO THE LIBERTIES OF THE PERSON ARE
INDIVISIBLE.  "UNDER HITLER, WHEN IT BECAME KNOWN THAT THE SECRET
POLICE PLANTED DICTAPHONES IN HOUSES, MEMBERS OF FAMILIES OFTEN
GATHERED IN BATHROOMS TO CONDUCT WHISPERED DISCUSSIONS OF INTIMATE
AFFAIRS, HOPING THUS TO ESCAPE THE REACH OF THE SENDING APPARATUS." 
UNITED STATES V. ON LEE, 193 F.2D 306, 317 (DISSENTING OPINION). 
ELECTRONIC SURVEILLANCE STRIKES DEEPER THAN AT THE ANCIENT FEELING THAT
A MAN'S HOME IS HIS CASTLE; IT STRIKES AT FREEDOM OF COMMUNICATION, A
POSTULATE OF OUR KIND OF SOCIETY.  LOPEZ' WORDS TO AGENT DAVIS CAPTURED
BY THE MINIFON WERE NOT CONSTITUTIONALLY PRIVILEGED BY FORCE OF THE
FIRST AMENDMENT.  BUT FREEDOM OF SPEECH IS UNDERMINED WHERE PEOPLE FEAR
TO SPEAK UNCONSTRAINEDLY IN WHAT THEY SUPPOSE TO BE THE PRIVACY OF HOME
AND OFFICE.  KING, WIRE TAPPING AND ELECTRONIC SURVEILLANCE:  A
NEGLECTED CONSTITUTIONAL CONSIDERATION, 66 DICK.  L. REV. 17, 25-30
(1961).  IF ELECTRONIC SURVEILLANCE BY GOVERNMENT BECOMES SUFFICIENTLY
WIDESPREAD, AND THERE IS LITTLE IN PROSPECT FOR CHECKING IT, THE HAZARD
THAT AS A PEOPLE WE MAY BECOME HAGRIDDEN AND FURTIVE IS NOT FANTASY. 

THE RIGHT TO PRIVACY IS THE OBVERSE OF FREEDOM OF SPEECH IN ANOTHER
SENSE.  THIS COURT HAS LATELY RECOGNIZED THAT THE FIRST AMENDMENT
FREEDOMS MAY INCLUDE THE RIGHT, UNDER CERTAIN CIRCUMSTANCES, TO
ANONYMITY.  SEE NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S. 449; BATES
V. LITTLE ROCK, 361 U.S. 516; TALLEY V. CALIFORNIA, 362 U.S. 60;
LOUISIANA EX REL.  GREMILLION V. NAACP, 366 U.S. 293; GIBSON V. FLORIDA
LEGISLATIVE INVESTIGATION COMM., 372 U.S. 539.  THE PASSIVE AND THE
QUIET, EQUALLY WITH THE ACTIVE AND THE AGGRESSIVE, ARE ENTITLED TO
PROTECTION WHEN ENGAGED IN THE PRECIOUS ACTIVITY OF EXPRESSING IDEAS OR
BELIEFS.  ELECTRONIC SURVEILLANCE DESTROYS ALL ANONYMITY AND ALL
PRIVACY; IT MAKES GOVERNMENT PRIVY TO EVERYTHING THAT GOES ON. 

IN LIGHT OF THESE CIRCUMSTANCES I THINK IT IS AN INTOLERABLE ANOMALY
THAT WHILE CONVENTIONAL SEARCHES AND SEIZURES ARE REGULATED BY THE
FOURTH AND FOURTEENTH AMENDMENTS AND WIRETAPPING IS PROHIBITED BY
FEDERAL STATUTE, ELECTRONIC SURVEILLANCE AS INVOLVED IN THE INSTANT
CASE, WHICH POSES THE GREATEST DANGER TO THE RIGHT OF PRIVATE FREEDOM,
IS WHOLLY BEYOND THE PALE OF FEDERAL LAWS.  (FN20). 

THIS COURT HAS BY AND LARGE STEADFASTLY ENFORCED THE FOURTH AMENDMENT
AGAINST PHYSICAL INTRUSIONS INTO PERSON, HOME, AND PROPERTY BY LAW
ENFORCEMENT OFFICERS.  BUT OUR COURSE OF DECISIONS, IT NOW SEEMS, HAS
BEEN OUTFLANKED BY THE TECHNOLOGICAL ADVANCES OF THE VERY RECENT PAST. 
I CANNOT BUT BELIEVE THAT IF WE CONTINUE TO CONDONE ELECTRONIC
SURVEILLANCE BY FEDERAL AGENTS BY PERMITTING THE FRUITS TO BE USED IN
EVIDENCE IN THE FEDERAL COURTS, WE SHALL BE CONTRIBUTING TO A CLIMATE
OF OFFICIAL LAWLESSNESS AND CONCEDING THE HELPLESSNESS OF THE
CONSTITUTION AND THIS COURT TO PROTECT RIGHTS "FUNDAMENTAL TO A FREE
SOCIETY."  FRANK V. MARYLAND, SUPRA, AT 362.  (FN21) 

FN1  SEE BURGMAN V. UNITED STATES, 88 U.S. APP. D.C. 184, 188 F.2D
637; BELFIELD V. COOP, 8 ILL. 2D 293, 134 N.E.2D 249 (1956); BOYNE
CITY, G.&A.R. CO. V. ANDERSON, 146 MICH. 328, 109 N.W. 429 (1906);
STATE V. REYES, 209 ORE.  595, 636, 308 P.2D 182, 196 (1957); PAULSON
V. SCOTT, 260 WIS. 141, 50 N.W.2D 376 (1951).  "THE GROUND FOR
RECEIVING THE TESTIMONY OF THE PHONOGRAPH WOULD SEEM TO BE STRONGER
(THAN IN THE CASE OF THE TELEPHONE), SINCE IN ITS CASE THERE IS NOT
ONLY PROOF BY THE HUMAN WITNESS OF THE MAKING OF THE SOUNDS TO BE
REPRODUCED, BUT A REPRODUCTION BY THE MECHANICAL WITNESS OF THE SOUNDS
THEMSELVES."  BOYNE CITY, G.&A.R. CO. V. ANDERSON, SUPRA.  SEE
GENERALLY ANNOTATION, ADMISSIBILITY OF SOUND RECORDINGS IN EVIDENCE, 58
A.L.R.2D 1024 (1958).  THIS IS TO BE CONTRASTED WITH DOCUMENTS OFFERED
AS EVIDENCE OF PAST RECOLLECTION RECORDED OR PRESENT RECOLLECTION
REVIVED, WHICH HAVE NO STATUS UNLESS VERIFIED BY A WITNESS FROM HIS
PERSONAL KNOWLEDGE. 

"THE WITNESS MUST BE ABLE NOW TO ASSERT THAT THE RECORD ACCURATELY
REPRESENTED HIS KNOWLEDGE AND RECOLLECTION AT THE TIME.  THE USUAL
PHRASE REQUIRES THE WITNESS TO AFFIRM THAT HE 'KNEW IT TO BE TRUE AT
THE TIME.'"  3 WIGMORE, EVIDENCE (3D ED. 1940), SEC.  747.  "IT FOLLOWS
FROM THE NATURE OF THE PURPOSE (PRESENT RECOLLECTION REVIVED) FOR WHICH
THE PAPER IS USED  ...  THAT IT IS IN NO STRICT SENSE TESTIMONY.  IN
THIS RESPECT IT DIFFERS FROM A RECORD OF PAST RECOLLECTION, WHICH IS
ADOPTED BY THE WITNESS AS THE EMBODIMENT OF HIS TESTIMONY AND, AS THUS
ADOPTED, BECOMES HIS PRESENT EVIDENCE ...  ."  3 ID., SEC. 763.  IT IS
TO BE NOTED THAT IN BOTH CASES THE DOCUMENTS COME IN ONLY ON THE
STRENGTH OF THE WITNESS' TESTIMONY. 

FN2  IF ANYTHING, RATHBUN SUPPORTS THE POSITION THAT THE RIGHT OF
PRIVACY IS NOT FORFEITED MERELY BECAUSE THE AUDITOR AUTHORIZES
ELECTRONIC EAVESDROPPING.  THE COURT MIGHT HAVE GROUNDED ITS DECISION
IN THE FACT THAT THE RECEIVER HAD CONSENTED TO THE POLICE OFFICERS'
LISTENING IN; SINCE SEC. 605 PROSCRIBES ONLY UNAUTHORIZED INTERCEPTIONS
OF TELEPHONIC COMMUNICATIONS, THE COURT COULD HAVE HELD THAT THE
LISTENING WAS AUTHORIZED, BUT IT DID NOT, TURNING THE CASE ENTIRELY ON
THE ABSENCE OF INTERCEPTION WITHIN THE MEANING OF THE STATUTE, AND
CAREFULLY DIFFERENTIATING BETWEEN USE OF AN EXISTING EXTENSION PHONE
AND OTHER MODES OF LISTENING IN.  THUS THE CONCESSION IN RATHBUN WHICH
THE COURT TODAY QUOTES WAS PURE DICTUM. 

FN3  THE FAILURE OF LOPEZ OR HIS COUNSEL TO RAISE OR ARGUE THE
SUPERVISORY-POWER POINT DOES NOT BAR US FROM CONSIDERING IT.  FOR THE
INTEREST SECURED BY THE EXERCISE OF THE POWER IS THAT OF THE FEDERAL
COURTS THEMSELVES, NOT OF THE PARTIES.  "THE OBJECTION THAT THE
PLAINTIFF COMES WITH UNCLEAN HANDS WILL BE TAKEN BY THE COURT ITSELF. 
IT WILL BE TAKEN DESPITE THE WISH TO THE CONTRARY OF ALL THE PARTIES TO
THE LITIGATION.  THE COURT PROTECTS ITSELF."  OLMSTEAD V. UNITED
STATES, 277 U.S. 438, 485 (BRANDEIS, J., DISSENTING)(FOOTNOTE
OMITTED). 

FN4  "IT IS VERY CERTAIN, THAT THE LAW OBLIGETH NO MAN TO ACCUSE
HIMSELF; BECAUSE THE NECESSARY MEANS OF COMPELLING SELF-ACCUSATION,
FALLING UPON THE INNOCENT AS WELL AS THE GUILTY, WOULD BE BOTH CRUEL
AND UNJUST; AND IT SHOULD SEEM, THAT SEARCH FOR EVIDENCE IS DISALLOWED
UPON THE SAME PRINCIPLE."  19 HOWELL'S STATE TRIALS, AT 1073. 

FN5  THE TEXT OF THE FOURTH AMENDMENT IS AS FOLLOWS:  "THE RIGHT OF
THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS,
AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND
NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR
AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND
THE PERSONS OR THINGS TO BE SEIZED." 

FN6  "HISTORICALLY WE ARE DEALING WITH A PROVISION OF THE
CONSTITUTION WHICH SOUGHT TO GUARD AGAINST AN ABUSE THAT MORE THAN ANY
ONE SINGLE FACTOR GAVE RISE TO AMERICAN INDEPENDENCE.  JOHN ADAMS
SURELY IS A COMPETENT WITNESS ON THE CAUSES OF THE AMERICAN
REVOLUTION.  AND HE IT WAS WHO SAID OF OTIS' ARGUMENT AGAINST SEARCH BY
THE POLICE  ...  , 'AMERICAN INDEPENDENCE WAS THEN AND THERE BORN.'  10
ADAMS, WORKS 247."  HARRIS V. UNITED STATES, 331 U.S. 145, 159
(DISSENTING OPINION). 

OF COURSE, THE WARRANT CLAUSE NOT ONLY OUTLAWS GENERAL WARRANTS, BUT
ALSO ESTABLISHES THE ROOT PRINCIPLE OF JUDICIAL SUPERINTENDENCE OF
SEARCHES AND SEIZURES.  SEE P. 464, INFRA. 

FN7  E.G., BRAM V. UNITED STATES, 168 U.S. 532, 543-544; HALE V.
HENKEL, 201 U.S. 43, 71; WEEKS V. UNITED STATES, 232 U.S. 383; GOULED
V. UNITED STATES, 255 U.S. 298, 306; AMOS V. UNITED STATES, 255 U.S.
313; AGNELLO V. UNITED STATES, 269 U.S. 20, 33-34; MCGUIRE V. UNITED
STATES, 273 U.S. 95, 99; UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 467;
FELDMAN V. UNITED STATES, SUPRA, AT 489-490; DAVIS V. UNITED STATES,
328 U.S. 582, 587; ZAP V. UNITED STATES, 328 U.S. 624, 628. 

THE COURT'S LIBERAL CONSTRUCTION OF THE FOURTH IS PARALLELED BY ITS
SIMILARLY LIBERAL CONSTRUCTION OF THE FIFTH.  SEE, E.G., COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 562. 

FN8  IN PART, THE COURT RESTED ITS DECISION ON CONSIDERATIONS THOUGHT
PECULIAR TO WIRETAPPING, I.E., THE INTERCEPTION OF TELEPHONIC
COMMUNICATIONS.  "THE LANGUAGE OF THE AMENDMENT CAN NOT BE EXTENDED AND
EXPANDED TO INCLUDE TELEPHONE WIRES REACHING TO THE WHOLE WORLD FROM
THE DEFENDANT'S HOUSE OR OFFICE.  THE INTERVENING WIRES ARE NOT PART OF
HIS HOUSE OR OFFICE ANY MORE THAN ARE THE HIGHWAYS ALONG WHICH THEY ARE
STRETCHED."  277 U.S., AT 465.  "THE REASONABLE VIEW IS THAT ONE WHO
INSTALLS IN HIS HOUSE A TELEPHONE INSTRUMENT WITH CONNECTING WIRES
INTENDS TO PROJECT HIS VOICE TO THOSE QUITE OUTSIDE, AND THAT THE WIRES
BEYOND HIS HOUSE AND MESSAGES WHILE PASSING OVER THEM ARE NOT WITHIN
THE PROTECTION OF THE FOURTH AMENDMENT.  HERE THOSE WHO INTERCEPTED THE
PROJECTED VOICES WERE NOT IN THE HOUSE OF EITHER PARTY TO THE
CONVERSATION."  ID., AT 466. 

THE DISINGENUOUS ARTIFICIALITY OF THIS ANALYSIS IS SURELY PLAIN. 
ALTHOUGH, ARGUABLY, FACE-TO-FACE CONVERSATIONS IN HOME OR OFFICE ARE
MORE INTIMATELY A PART OF THE RIGHT TO PRIVACY THAN ARE TELEPHONIC
CONVERSATIONS, SEE PP. 452-453, SUPRA, ANY ATTEMPT TO DRAW A
CONSTITUTIONAL DISTINCTION WOULD IGNORE THE PLAIN REALITIES OF MODERN
LIFE, IN WHICH THE TELEPHONE HAS ASSUMED AN INDISPENSABLE ROLE IN FREE
HUMAN COMMUNICATION. 

FN9  IN IRVINE V. CALIFORNIA, SUPRA, THOUGH THE CONDUCT OF THE POLICE
WAS HELD TO VIOLATE THE FOURTH AND FOURTEENTH AMENDMENTS, THE FRUITS
WERE DEEMED ADMISSIBLE UNDER THE RULE OF WOLF V. COLORADO, SUPRA,
OVERRULED IN MAPP V. OHIO, SUPRA.  IT MIGHT BE NOTED THAT THE HOLDINGS
IN IRVINE AND SILVERMAN, INSOFAR AS THEY BROUGHT VERBAL FRUITS WITHIN
THE FOURTH AMENDMENT, WERE IMPLICIT IN SILVERTHORNE LUMBER CO. V.
UNITED STATES, 251 U.S. 385, 392, WHERE IT WAS HELD THAT ALL FRUITS OF
AN UNCONSTITUTIONAL SEARCH MUST BE EXCLUDED FROM THE FEDERAL COURTS, SO
AS NOT TO "REDUCE  ...  THE FOURTH AMENDMENT TO A FORM OF WORDS."  CF.
MCDONALD V. UNITED STATES, 335 U.S. 451; NUESLEIN V. DISTRICT OF
COLUMBIA, 73 APP. D.C. 85, 115 F.2D 690. 

FN10  SILVERMAN INVOLVED THE PENETRATION OF A "SPIKE MIKE" SEVERAL
INCHES INTO THE PARTY WALL OF THE HOUSE OCCUPIED BY THE PETITIONERS. 
THE MIKE TOUCHED A HEARING DUCT WHICH ACTED AS A CONDUCTOR OF SOUNDS
WITHIN THE HOUSE, THUS ENABLING THEIR TRANSMISSION BY THE MIKE TO
FEDERAL OFFICERS ON THE OTHER SIDE OF THE WALL.  ON ITS FACTS THE CASE
WAS VERY CLOSE TO GOLDMAN, WHICH HAD INVOLVED A DETECTAPHONE PLACED
AGAINST AND TOUCHING (BUT NOT PENETRATING) THE OUTSIDE OF A WALL. 
SINCE THE COURT IN SILVERMAN DECLINED TO DISTINGUISH THE CASES ON THE
GROUND THAT SILVERMAN DID, AND GOLDMAN DID NOT, INVOLVE AN ACTUAL
TRESPASS, IT WOULD SEEM THAT THE AUTHORITY OF GOLDMAN WAS SEVERELY
IMPAIRED - AND SO ALSO, IT WOULD SEEM, THAT OF ON LEE AND OLMSTEAD. 

ACTUALLY, THE INSTANT CASE AND ON LEE, COMPARED WITH GOLDMAN AND
SILVERMAN, ARE A FORTIORI FOR APPLYING THE FOURTH AMENDMENT: 

"THIS COURT HAS HELD GENERALLY THAT, IN A FEDERAL CRIMINAL TRIAL, A
FEDERAL OFFICER MAY TESTIFY TO WHAT HE SEES OR HEARS TAKE PLACE WITHIN
A HOUSE OR ROOM WHICH HE HAS NO WARRANT OR PERMISSION TO ENTER,
PROVIDED HE SEES OR HEARS IT OUTSIDE OF THOSE PREMISES  ...  .  THIS
HOLDS TRUE EVEN WHERE THE OFFICER SUPPLEMENTS HIS HEARING WITH A
HEARING AID, DETECTAPHONE OR OTHER DEVICE OUTSIDE THE PREMISES  ...  .
HE AND HIS HEARING AID PICK UP THE SOUNDS OUTSIDE OF, RATHER THAN
WITHIN, THE PROTECTED PREMISES. 

"IN THE INSTANT CASE (ON LEE)  ...  LEE'S OVERHEARING OF PETITIONER'S
STATEMENTS WAS ACCOMPLISHED THROUGH CHIN POY'S SURREPTITIOUS
INTRODUCTION, WITHIN PETITIONER'S LAUNDRY, OF LEE'S CONCEALED RADIO
TRANSMITTER WHICH, WITHOUT PETITIONER'S KNOWLEDGE OR CONSENT, THERE
PICKED UP PETITIONER'S CONVERSATION AND TRANSMITTED IT TO LEE OUTSIDE
THE PREMISES.  THE PRESENCE OF THE TRANSMITTER, FOR THIS PURPOSE, WAS
THE PRESENCE OF LEE'S EAR  ...  .  IN THIS CASE THE WORDS PICKED UP
WITHOUT WARRANT OR CONSENT WITHIN THE CONSTITUTIONALLY INVIOLATE
'HOUSE' OF A PERSON ENTITLED TO PROTECTION THERE AGAINST UNREASONABLE
SEARCHES AND SEIZURES  ...  ."  ON LEE V. UNITED STATES, 343 U.S. 747,
766-767 (BURTON, J., DISSENTING).    FN11  SEE, E.G., GOLDMAN V. UNITED
STATES, 316 U.S. 129, 140, N. 6 (MURPHY, J., DISSENTING); CF. 8
WIGMORE, EVIDENCE (MCNAUGHTON REV. ED. 1961), SEC. 2184B(3), AT 59;
WESTIN, THE WIRE-TAPPING PROBLEM:  AN ANALYSIS AND A LEGISLATIVE
PROPOSAL, 52 COL. L. REV. 165, 200-208 (1952). 

FN12  THIS IS NOT TO SAY THAT THE FOURTH AMENDMENT MUST NECESSARILY
EMBRACE EVERY SITUATION INVOLVING ELECTRONIC RECORDING AIDS TO LAW
ENFORCEMENT.  FOR EXAMPLE, A DISTINCTION MIGHT BE DRAWN BETWEEN
SURVEILLANCE OF HOME OR OFFICE ON THE ONE HAND, AND SURVEILLANCE OF
PUBLIC PLACES, STREETS, AND SO FORTH, ON THE OTHER HAND.  COMPARE
MCDONALD V. UNITED STATES, 335 U.S. 451, WITH HESTER V. UNITED STATES,
265 U.S. 57. 

FN13  "EAVES-DROPPERS, OR SUCH AS LISTEN UNDER WALLS OR WINDOWS OR
THE EAVES OF A HOUSE, TO HEARKEN AFTER DISCOURSE, AND THEREUPON TO
FRAME SLANDEROUS AND MISCHIEVOUS TALES, ARE A COMMON NUSANCE AND
PRESENTABLE AT THE COURT-LEET:  OR ARE INDICTABLE AT THE SESSIONS, AND
PUNISHABLE BY FINE AND FINDING SURETIES FOR THEIR GOOD BEHAVIOUR."  4
BLACKSTONE COMMENTARIES 168.  SEE GA. CODE ANN. SEC. 26-2001; N.D.
CENT. CODE SEC. 12-42-05; S.C.  CODE SEC. 16-554. 

FN14  DASH, SCHWARTZ, AND KNOWLTON, THE EAVESDROPPERS (1959);
HEARINGS ON S. RES. NO. 234 BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL
RIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY, 85TH CONG., 2D SESS.
PASSIM (1958); REPORT OF THE CALIFORNIA SENATE JUDICIARY COMMITTEE ON
THE INTERCEPTION OF MESSAGES BY THE USE OF ELECTRONIC AND OTHER DEVICES
(1957); REPORT OF THE NEW YORK JOINT LEGISLATIVE COMMITTEE TO STUDY
ILLEGAL INTERCEPTION OF COMMUNICATIONS, N.Y. SESS. LAWS (1956). 

FN15  SEE DASH, SUPRA, NOTE 14, AT 76 ("BUGGING" BY POLICE OF
INTERROGATION ROOMS, JAIL CELLS, AND INTERVIEW ROOMS IN JAILS), 96
(MONITORING OF EMPLOYEES' CONVERSATIONS BY MEANS OF MICROPHONES
CONCEALED IN PEN SETS), 136 (USE OF MICROPHONES BY LAW ENFORCEMENT
OFFICERS TERMED "UNIVERSAL" IN NEW ORLEANS AND BATON ROUGE), 175 (IN
CALIFORNIA, "BUGGING IS MUCH MORE FREQUENTLY AND OPENLY ENGAGED IN BY
POLICE THAN WIRETAPPING"), 180 (AGAIN IN CALIFORNIA:  "LITERALLY,
WHENEVER THE POLICE SUSPECTED AN INDIVIDUAL OF BEING CONNECTED WITH THE
COMMISSION OF A CRIME, AND THE CASE WAS WORTH IT, TRAINED POLICE
TECHNICIANS, OR PRIVATE SPECIALISTS EMPLOYED BY THE POLICE, WOULD PRY
OPEN WINDOWS, PICK LOCKS, OR BY SOME RUSE GAIN ENTRY TO THE HOME OR
BUSINESS PLACE OF THE SUSPECTED INDIVIDUAL AND PLANT A MICROPHONE FOR
THE PURPOSE OF OVERHEARING HIS CONVERSATIONS.  BY MEANS OF A LEASED
WIRE FROM THE TELEPHONE COMPANY, THESE PLANTED MICROPHONES COULD BE
CONNECTED TO TELEPHONE LINES WHICH WOULD BE DRAWN IN TO A SINGLE
LISTENING POST WHERE A GREAT NUMBER OF CONVERSATIONS IN DIFFERENT PARTS
OF THE CITY COULD BE MONITORED AT ONE TIME AND IN ONE PLACE", 190 (USE
OF CONCEALED MICROPHONE FOR PURPOSES OF BLACKMAIL), 196 (BUGGING
CONVERSATIONS BETWEEN HUSBANDS AND WIVES IN JAILS), 212 ("TABLES HAVE
BEEN BUGGED IN A RESTAURANT FOR THE PURPOSE, ACCORDING TO THE
PROPRIETOR, OF PERMITTING HIM TO KNOW WHAT HIS CUSTOMERS ACTUALLY THINK
OF HIS FOOD AND TO DETECT DISCOURTESY AMONG HIS WAITRESSES"), 229-230
(USE OF BUGGING TO OBTAIN EVIDENCE FOR DIVORCE PROCEEDINGS), 269-271
(WIRETAPPING AND BUGGING OF LABOR CONTROVERSIES IN PHILADELPHIA), 280
281 (IN LAS VEGAS:  "A BUG IS PUT IN A VISITING HOODLUM'S HOTEL ROOM AS
A MATTER OF COURSE, TO SEE WHAT HE IS UP TO").  THESE ARE, OF COURSE,
ONLY A FEW ISOLATED EXAMPLES OF THE PRACTICE; SEE, E.G., THE WALL
STREET JOURNAL, APRIL 9, 1963, P. 1, COL. 4; P. 22, COL. 3. 

FN16  DASH SUGGESTS THAT A PARABOLIC MICROPHONE (WHICH CONCENTRATES
SOUND MUCH AS A CURVED MIRROR FOCUSES LIGHT) MIGHT PICK UP A
CONVERSATION AT A DISTANCE OF 100 FEET.  P. 350.  SUCH A MICROPHONE CAN
BE MADE VIRTUALLY IMPOSSIBLE TO DETECT, P. 353, BUT EVEN THE ORDINARY
CONCEALED MICROPHONE IN THE HOME MAY BE IMPOSSIBLE TO DETECT, AT LEAST
WITHOUT A MINE DETECTOR.  P. 342.  DASH ALSO SUGGESTS THAT A MICROWAVE
BEAM DEVICE MAY HAVE BEEN DEVELOPED WITH A RANGE OF 1,000 FEET OR MORE
AND ABILITY TO PENETRATE THROUGH VIRTUALLY ANY OBSTACLE.  PP. 357-358. 
SUCH A DEVICE, IF IT EXISTS, IS NOT READILY OBTAINABLE; BUT THE
PARABOLIC MICROPHONE AND A VARIETY OF OTHER SUCH DEVICES ARE.  THUS A
CURRENT ADVERTISEMENT IN A NATIONAL MAGAZINE FOR "THE SNOOPER"
DESCRIBES THIS DEVICE AS FOLLOWS: "THIS IS LITERALLY AN ELECTRONIC
MARVEL THAT'S A DIRECT RESULT OF THE SPACE AGE.  INCREDIBLE AS IT MAY
SEEM, IT DOES AMPLIFY SOUND 1,000,000 TIMES.  SENSITIVE 18 INCH DISK
REFLECTOR WILL PICK UP NORMAL CONVERSATIONS AT A DISTANCE (500 FT.) 
WHERE YOU CAN'T EVEN SEE LIPS MOVING.  JUST THINK OF THE WAYS YOU CAN
USE THIS.  PORTABLE; COMPLETE WITH TRIPOD AND STETHESCOPIC EARPHONES. 
THE BEST PART - A REGULAR TAPE RECORDER CAN BE PLUGGED INTO THE BACK TO
TAKE EVERYTHING DOWN.  HAVE FUN]"  THE ADVERTISED PRICE IS $18.95. 

FN17  "IN A CAREFULLY CONTROLLED EXPERIMENT, SAMUEL DASH MADE A
SAMPLE POLITICAL SPEECH ON TAPE.  A SOUND STUDIO SPECIALIZING IN TAPE
EDITING FOR ONE OF THE LARGE BROADCASTING STUDIOS THEN TOOK THIS TAPE
AND EDITED IT IN SUCH A WAY AS COMPLETELY TO REVERSE ITS MEANING. 
FINALLY, A THIRD RECORDING WAS MADE, THIS TIME OF MR. DASH READING THE
NEW, DISTORTED VERSION OF THE SPEECH.  THE THREE RECORDINGS WERE
COMPARED BY EAR AND BY OSCILLOSCOPE TO SEE WHETHER OR NOT THE EDITING
WAS DETECTABLE.  BY EAR IT WAS NOTICEABLE ONLY IN ONE PLACE WHERE THE
EDITOR HAD BEEN HURRIED IN HIS WORK.  THE OSCILLOSCOPE COULD NOT REVEAL
EVEN THIS MUCH BECAUSE OF THE RAPIDLY CHANGING PATTERNS ON THE SCREEN. 
IT WAS DECIDED THAT THE ONLY WAY TO EXAMINE THE WAVEFORMS FOR PURPOSES
OF COMPARISON WAS TO RECORD THEM ON MOTION-PICTURE FILM; ACCORDINGLY,
EQUIPMENT WAS SET UP FOR DOING THIS.  ALTHOUGH IT WAS EXPECTED THAT THE
BUILD-UP OR DECAY OF SOUNDS WOULD BE ALTERED BY CUTTING, SO SKILFUL HAD
BEEN THE EDITORIAL MANIPULATION THAT NOTHING OF THE KIND WAS OBSERVED. 
EVEN AFTER HOURS OF STUDYING THE FILMS, NO SURE CLUE REVEALING AN
EDITING JOB COULD BE FOUND."  DASH, AT 368. 

FN18  CAL. PENAL CODE SECS. 653H, 653I; MASS. GEN. LAWS ANN., C. 272,
SEC. 99; NEV.  REV. STAT. SEC. 200.650; N.Y. PENAL LAW, SEC. 738. 

FN19  IN THE NATURE OF THINGS, WIRETAPPING IS ONLY USEFUL IN THE
INVESTIGATION OF CRIMES OF A CONTINUING NATURE, WHICH ARE TYPICALLY NOT
MAJOR CRIMES.  "THE WIRETAPPING DONE BY PLAINCLOTHESMEN IS STILL IN
LARGE PART AIMED AT BOOKMAKERS' OPERATIONS AND PROSTITUTION.  AS A
MATTER OF FACT, MORE WIRETAPPING BY POLICE IS DONE IN GAMBLING CASES
THAN IN ANY OTHER KIND OF CASE.  IN GAMBLING AND VICE MATTERS
GENERALLY, THERE IS STEADY PRESSURE ON THE PLAINSCLOTHESMEN TO MAINTAIN
A CERTAIN ARREST RECORD.  CONTINUOUS WIRETAP SURVEILLANCE, WITHOUT
COURT ORDER, ENABLES PLAINCLOTHESMEN TO MAINTAIN THIS RECORD."  DASH,
AT 66.  THE SAME PRINCIPLES APPLY TO ELECTRONIC SURVEILLANCE
GENERALLY. 

FN20  SENATOR HENNINGS HAS TERMED ELECTRONIC EAVESDROPPING MORE
INSIDIOUS AND MORE PREVALENT THAN WIRETAPPING.  THE WIRETAPPING
EAVESDROPPING PROBLEM:  A LEGISLATOR'S VIEW, 44 MINN. L. REV. 813, 815
(1960).  ANOTHER OBSERVER HAS CALLED THE PROBLEM "FAR GRAVER" THAN
WIRETAPPING.  WILLIAMS, THE WIRETAPPING-EAVESDROPPING PROBLEM:  A
DEFENSE COUNSEL'S VIEW, 44 MINN. L. REV. 855, 862 (1960). 

FN21  VIEWING THE INSTANT CASE AS I DO, I FIND NO OCCASION TO
CONSIDER THE PETITIONER'S DEFENSE OF ENTRAPMENT. 
..END :





















BOESCHE V. UDALL 373 U.S. 472 


NO. 332.  ARGUED FEBRUARY 25, 1963.  - DECIDED MAY 27, 1963.  - 112 U.S.
APP. D.C. 344, 303 F.2D 204, AFFIRMED. 


THE SECRETARY OF THE INTERIOR HAS AUTHORITY TO CANCEL IN AN
ADMINISTRATIVE PROCEEDING A NONCOMPETITIVE LEASE OF PUBLIC LANDS ISSUED
UNDER THE PROVISIONS OF THE MINERAL LEASING ACT OF 1920 IN
CIRCUMSTANCES WHERE SUCH LEASE WAS GRANTED IN VIOLATION OF THE ACT AND
THE REGULATIONS PROMULGATED THEREUNDER - I.E., HE HAS POWER TO CORRECT
ADMINISTRATIVE ERRORS OF THE SORT INVOLVED IN THIS CASE BY CANCELLATION
OF LEASES IN ADMINISTRATIVE PROCEEDINGS TIMELY INSTITUTED BY COMPETING
APPLICANTS FOR THE SAME LAND.  PP. 473-486. 

(A)  THE SECRETARY, UNDER HIS GENERAL POWERS OF MANAGEMENT OVER THE
PUBLIC LANDS, HAS AUTHORITY TO CANCEL SUCH A LEASE ADMINISTRATIVELY FOR
INVALIDITY AT ITS INCEPTION, UNLESS SUCH AUTHORITY WAS WITHDRAWN BY THE
MINERAL LEASING ACT.  PP. 476-478. 

(B)  BOTH THE LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE HISTORY
SHOW THAT SEC. 31 OF THE MINERAL LEASING ACT REACHES ONLY CANCELLATIONS
BASED ON POST-LEASE EVENTS AND LEAVES UNAFFECTED THE SECRETARY'S
TRADITIONAL ADMINISTRATIVE AUTHORITY TO CANCEL ON THE BASIS OF PRE
LEASE FACTORS.  PP. 478-482. 

(C)  FROM THE BEGINNINGS OF THE MINERAL LEASING ACT, THE SECRETARY
HAS CONCEIVED THAT HE HAD SUCH POWER, AND CONGRESS HAS NEVER INTERFERED
WITH ITS EXERCISE.  PP. 482-483. 

(D)  THIS CASE IS A PECULIARLY APPROPRIATE ONE FOR ADMINISTRATIVE
DETERMINATION IN THE FIRST INSTANCE, SINCE THE SOLE ISSUE WAS WHETHER
PETITIONER'S LEASE OFFER WAS DEFECTIVE BECAUSE IT FAILED TO INCLUDE AN
ADJOINING 40-ACRE TRACT UNDER APPLICATION BY ANOTHER PARTY, AND THIS
QUESTION HAD ALREADY BEEN DECIDED ADVERSELY TO PETITIONER'S POSITION BY
THE SECRETARY IN A PREVIOUS CASE INTERPRETING THE GOVERNING
DEPARTMENTAL REGULATIONS.  PP. 483-485. 

BOESCHE, ADMINISTRATOR V. UDALL, SECRETARY OF THE INTERIOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER THE SECRETARY OF THE
INTERIOR HAS AUTHORITY TO CANCEL IN AN ADMINISTRATIVE PROCEEDING A
LEASE OF PUBLIC LANDS ISSUED UNDER THE PROVISIONS OF THE MINERAL
LEASING ACT OF 1920, 30 U.S.C. SECS. 181 ET SEQ., IN CIRCUMSTANCES
WHERE SUCH LEASE WAS GRANTED IN VIOLATION OF THE ACT AND REGULATIONS
PROMULGATED THEREUNDER.  BECAUSE OF A SEEMING CONFLICT IN PRINCIPLE
BETWEEN THE DECISION OF THE COURT OF APPEALS IN THIS CASE, 112 U.S.
APP. D.C. 344, 303 F.2D 204, AND THAT OF THE COURT OF APPEALS FOR THE
TENTH CIRCUIT IN PAN AMERICAN PETROLEUM CORP. V. PIERSON, 284 F.2D 649,
AND ALSO BECAUSE OF THE IMPORTANCE OF THE QUESTION TO THE PROPER
ADMINISTRATION OF THE MINERAL LEASING ACT, WE BROUGHT THE CASE HERE. 
371 U.S. 886.  FOR REASONS STATED HEREAFTER WE AFFIRM THE JUDGMENT
BELOW. 

THE SECRETARY OF THE INTERIOR TO GRANT TO THE FIRST QUALIFIED
APPLICANT, WITHOUT COMPETITIVE BIDDING, OIL AND GAS LEASES OF LANDS IN
THE PUBLIC DOMAIN NOT WITHIN A KNOWN GEOLOGIC STRUCTURE.  THESE ARE
CALLED "NONCOMPETITIVE" LEASES.  (FN1)  A DEPARTMENTAL REGULATION
PROVIDES THAT "NO OFFER" FOR A NONCOMPETITIVE LEASE "MAY BE MADE FOR
LESS THAN 640 ACRES EXCEPT  ...  WHERE THE LAND IS SURROUNDED BY LANDS
NOT AVAILABLE FOR LEASING UNDER THE ACT."  43 CFR SEC.  192.42(D). 
"NOT AVAILABLE" HAS ALWAYS BEEN ADMINISTRATIVELY CONSTRUED TO MEAN
LANDS NOT AVAILABLE FOR LEASING TO ANYONE.  HENCE LANDS COVERED ONLY BY
AN OUTSTANDING APPLICATION FOR A LEASE ARE CONSIDERED AVAILABLE,
NATALIE Z. SHELL, 62 I.D. 417 (1955), AND THEREFORE SUBJECT TO THE 640
ACRE REQUIREMENT. 

ON SEPTEMBER 11, 1956, PETITIONER (FN2) APPLIED TO THE SANTA FE LAND
OFFICE IN NEW MEXICO (WHOSE AUTHORITY ALSO EMBRACES OKLAHOMA) FOR AN 80
ACRE NONCOMPETITIVE LEASE OF LAND IN OKLAHOMA.  THERE WAS ALREADY ON
FILE AN APPLICATION BY ONE CONNELL FOR A NONCOMPETITIVE LEASE OF AN
ADJOINING 40-ACRE TRACT, BUT NO LEASE HAD ISSUED TO CONNELL AT THE TIME
OF PETITIONER'S APPLICATION.  IMMEDIATELY FOLLOWING PETITIONER'S
APPLICATION TWO OTHER PERSONS, CUCCIA AND CONLEY, FILED FOR A LEASE OF
THE ENTIRE 120 ACRES.  ON DECMEBER 1, 1956, THE 40-ACRE LEASE ISSUED TO
CONNELL, THE VALIDITY OF WHICH IS NOT QUESTIONED HERE.  IN NOVEMBER
1957 AN 80-ACRE LEASE ISSUED TO PETITIONER.  FOLLOWING NOTIFICATION
THAT THEIR 120-ACRE APPLICATION HAD BEEN REJECTED, CUCCIA AND CONLEY
PURSUED A DEPARTMENTAL APPEAL, 43 CFR SECS. 221.1-221.2.  THIS
ULTIMATELY RESULTED IN A CANCELLATION OF PETITIONER'S LEASE ON THE
GROUND THAT HAVING FAILED TO INCLUDE IN HIS APPLICATION THE ADJOINING
40-ACRE TRACT (NO LEASE TO CONNELL HAVING THEN BEEN ISSUED), HIS 80
ACRE APPLICATION WAS INVALID, THUS LEAVING THE CUCCIA AND CONLEY
APPLICATION IN RESPECT OF THAT TRACT PRIOR IN RIGHT.  ACCORDINGLY A
LEASE TO THEM WAS DIRECTED.  (FN3) 

THE ENSUING LITIGATION INSTITUTED BY PETITIONER IN THE FEDERAL
DISTRICT COURT RESULTED IN THE JUDGMENT OF THE COURT OF APPEALS, NOW
UNDER REVIEW, SUSTAINING THE ADMINISTRATIVE CANCELLATION. 

PETITIONER'S CLAIM BEFORE THIS COURT (FN4) RESTS ON SEC. 31 OF THE
MINERAL LEASING ACT, 30 U.S.C. SEC. 188, AS AMENDED, WHICH, IN
PERTINENT PART, READS AS FOLLOWS: 

"EXCEPT AS OTHERWISE HEREIN PROVIDED, ANY LEASE ISSUED UNDER THE
PROVISIONS OF ...  THIS ACT MAY BE FORFEITED AND CANCELED BY AN
APPROPRIATE PROCEEDING IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT IN WHICH THE PROPERTY, OR SOME PART THEREOF, IS LOCATED
WHENEVER THE LESSEE FAILS TO COMPLY WITH ANY OF THE PROVISIONS OF  ...
THE ACT, OF THE LEASE, OR OF THE GENERAL REGULATIONS PROMULGATED UNDER
...  THE ACT AND IN FORCE AT THE DATE OF THE LEASE ...  . 

"ANY LEASE ISSUED AFTER AUGUST 21, 1935, (FN5) UNDER THE PROVISIONS
OF  ...  (SEC. 17 OF THE ACT, 30 U.S.C. SEC. 226) SHALL BE SUBJECT TO
CANCELLATION BY THE SECRETARY OF THE INTERIOR AFTER THIRTY DAYS' NOTICE
UPON THE FAILURE OF THE LESSEE TO COMPLY WITH ANY OF THE PROVISIONS OF
THE LEASE, UNLESS OR UNTIL THE LAND COVERED BY ANY SUCH LEASE IS KNOWN
TO CONTAIN VALUABLE DEPOSITS OF OIL OR GAS. 

PETITIONER CONTENDS:  (1) SEC. 31 IS THE EXCLUSIVE SOURCE OF THE
SECRETARY'S POWER TO FORFEIT A LEASE ONCE IT HAS BEEN ISSUED; (2) THE
INSTANCES WHERE A LESSEE HAS FAILED TO COMPLY WITH THE TERMS OF HIS
LEASE AND THEN ONLY SO LONG AS THE LAND IS NOT KNOWN TO CONTAIN OIL OR
GAS; (3) SINCE PETITIONER FAILED TO COMPLY NOT WITH THE TERMS OF HIS
LEASE BUT WITH A DEPARTMENTAL REGULATION, CANCELLATION OF HIS LEASE WAS
GOVERNED BY THE FIRST PARAGRAPH OF SEC. 31, WHICH REQUIRES A JUDICIAL
PROCEEDING. 

THE SECRETARY, ON THE OTHER HAND, CONTENDS:  (1) THE PROVISIONS OF
SEC. 31 AS A WHOLE APPLY ONLY TO EVENTS, WHETHER IN VIOLATION OF LEASE
TERMS, THE ACT, OR THE REGULATIONS, OCCURRING AFTER A LEASE HAS BEEN
ISSUED; (2) THE SECRETARY'S AUTHORITY TO CANCEL ON THE BASIS OF PRE
LEASE EVENTS IS FOUND NOT IN SEC. 31 BUT IN HIS GENERAL POWERS OF
MANAGEMENT OVER LANDS IN THE PUBLIC DOMAIN; (3) THAT AUTHORITY REMAINED
UNAFFECTED BY THE MINERAL LEASING ACT. 

                              I. 

WE THINK THAT THE SECRETARY, UNDER HIS GENERAL POWERS OF MANGEMENT
OVER THE PUBLIC LANDS, HAD AUTHORITY TO CANCEL THIS LEASE
ADMINISTRATIVELY FOR INVALIDITY AT ITS INCEPTION, UNLESS SUCH AUTHORITY
WAS WITHDRAWN BY THE MINERAL LEASING ACT.  WITH RESPECT TO EARLIER
STATUTES CONTAINING NO EXPRESS ADMINISTRATIVE CANCELLATION AUTHORITY,
THIS COURT, IN CAMERON V. UNITED STATES, 252 U.S. 450, FOUND SUCH
AUTHORITY TO EXIST.  IN THERE SUSTAINING THE SECRETARY'S POWER TO
CANCEL ADMINISTRATIVELY AN INVALID MINING CLAIM, THE COURT SAID (AT P.
461): 

"TRUE, THE MINERAL LAND LAW DOES NOT IN ITSELF CONFER SUCH AUTHORITY
ON THE LAND DEPARTMENT.  NEITHER DOES IT PLACE THE AUTHORITY
ELSEWHERE.  BUT THIS DOES NOT MEAN THAT THE AUTHORITY DOES NOT EXIST
ANYWHERE, FOR, IN THE ABSENCE OF SOME DIRECTION TO THE CONTRARY, THE
GENERAL STATUTORY PROVISIONS BEFORE MENTIONED VEST IT IN THE LAND
DEPARTMENT." 

THE STATUTORY PROVISIONS REFERRED TO BY THE COURT ARE THOSE VESTING
THE SECRETARY WITH GENERAL MANAGERIAL POWERS OVER THE PUBLIC LANDS. 
(FN6) 

THE SECRETARY HAS ALSO LONG BEEN HELD TO POSSESS THE SAME AUTHORITY
WITH RESPECT TO OTHER KINDS OF INTERESTS IN PUBLIC LANDS:  HARKNESS &
WIFE V. UNDERHILL, 1 BLACK 316; LEE V. JOHNSON, 116 U.S. 48; ORCHARD V.
ALEXANDER, 157 U.S. 372 (ALL INVOLVING HOMESTEAD ENTRIES); BROWN V.
HITCHCOCK, 173 U.S. 473 (SELECTION LIST); KNIGHT V. UNITED STATES LAND
ASSN., 142 U.S. 161 (ERRONEOUS SURVEY); HAWLEY V. DILLER, 178 U.S. 476
(TIMBER LAND ENTRY); RIVERSIDE OIL CO. V. HITCHCOCK, 190 U.S. 316 (LIEU
LAND SELECTION). 

THE CONTINUING VITALITY OF THIS GENERAL ADMINISTRATIVE AUTHORITY WAS
RECENTLY CONFIRMED BY US IN BEST V. HUMBOLDT PLACER MINING CO., 371
U.S. 334. 

WE ARE NOT PERSUADED BY PETITIONER'S ARGUMENT - BASED ON CASES
HOLDING THAT LAND PATENTS ONCE DELIVERED AND ACCEPTED COULD BE CANCELED
ONLY IN JUDICIAL PROCEEDINGS (E.G., JOHNSON V. TOWSLEY, 13 WALL.  72;
MOORE V. ROBBINS, 96 U.S. 530) - THAT THE ADMINISTRATIVE CANCELLATION
POWER ESTABLISHED BY CAMERON AND THE OTHER CASES CITED IS CONFINED TO
SO-CALLED EQUITABLE INTERESTS, AND THAT A LEASE, WHICH IS SAID TO
RESEMBLE MORE CLOSELY THE LEGAL INTEREST CONVEYED BY A LAND PATENT, IS
NOT SUBJECT TO SUCH POWER.  WE THINK THAT NO MATTER HOW THE INTEREST
CONVEYED IS DENOMINATED THE TRUE LINE OF DEMARCATION IS WHETHER AS A
RESULT OF THE TRANSACTION "ALL AUTHORITY OF CONTROL" OVER THE LANDS HAS
PASSED FROM "THE EXECUTIVE DEPARTMENT," MOORE V. ROBBINS, SUPRA, AT
533, OR WHETHER THE GOVERNMENT CONTINUES TO POSSESS SOME MEASURE OF
CONTROL OVER THEM. 

UNLIKE A LAND PATENT, WHICH DIVESTS THE GOVERNMENT OF TITLE, CONGRESS
UNDER THE MINERAL LEASING ACT HAS NOT ONLY RESERVED TO THE UNITED
STATES THE FEE INTEREST IN THE LEASED LAND, BUT HAS ALSO SUBJECTED THE
LEASE TO EXACTING RESTRICTIONS AND CONTINUING SUPERVISION BY THE
SECRETARY.  THUS, ASSIGNMENTS AND SUBLEASES MUST BE APPROVED BY THE
SECRETARY, 30 U.S.C. SEC. 187; HE MAY DIRECT COMPLETE SUSPENSION OF
OPERATIONS ON THE LAND, 30 U.S.C.  SEC. 209, OR REQUIRE THE LESSEE TO
OPERATE UNDER A COOPERATIVE OR UNIT PLAN, 30 U.S.C.  (SUPP. IV, 1963),
SEC. 226(J); AND HE MAY PRESCRIBE, AS HE HAS, RULES AND REGULATIONS
GOVERNING IN MINUTE DETAIL ALL FACETS OF THE WORKING OF THE LAND, 30
U.S.C. SEC. 189; 30 CFR, PT. 221.  IN SHORT, A MINERAL LEASE DOES NOT
GIVE THE LESSEE ANYTHING APPROACHING THE FULL OWNERSHIP OF A FEE
PATENTEE, NOR DOES IT CONVEY AN UNENCUMBERED ESTATE IN THE MINERALS. 
(FN7)  SINCE THE SECRETARY'S CONNECTION WITH THE LAND CONTINUES TO
SUBSIST, HE SHOULD HAVE THE POWER, IN A PROPER CASE, TO CORRECT HIS OWN
ERRORS. 

THE DISPOSITIVE QUESTION IN THIS CASE, THEREFORE, IS WHETHER THIS
GENERAL ADMINISTRATIVE POWER OF CANCELLATION WAS WITHDRAWN BY SEC. 31
OF THE MINERAL LEASING ACT.  TO THAT QUESTION WE NOW TURN. 

                                    II. 

WE BELIEVE THAT BOTH THE STATUTE ON ITS FACE AND THE LEGISLATIVE
HISTORY OF THE ENACTMENT SHOW THAT SEC. 31 REACHES ONLY CANCELLATIONS
BASED ON POST-LEASE EVENTS AND LEAVES UNAFFECTED THE SECRETARY'S
TRADITIONAL ADMINISTRATIVE AUTHORITY TO CANCEL ON THE BASIS OF PRE
LEASE FACTORS. 

1.  WERE SEC. 31 DEEMED TO BE THE EXCLUSIVE SOURCE OF THE POWER TO
CANCEL, THE ACT, IN RESPECT OF ITS "FIRST QUALIFIED APPLICANT"
REQUIREMENT RELATING TO NONCOMPETITIVE LEASES, WOULD BE SELF
DEFEATING.  FOR IN CASES WHERE THERE HAD BEEN NO BREACH OF A LEASE,
STATUTE, OR REGULATIONS BY THE LESSEE, THE FACTOR WHICH ALONE BRINGS
SEC. 31 INTO PLAY (P. 475, SUPRA), THE SECRETARY WOULD BE POWERLESS TO
CANCEL THE LEASE EVEN IF THE LESSEE HAD NOT BEEN THE FIRST QUALIFIED
APPLICANT.  THUS, A LOCAL LAND OFFICE MANAGER MIGHT, WITHOUT FAULT ON
THE PART OF THE LESSEE, INADVERTENTLY OR PURPOSEFULLY ISSUE A LEASE TO
A NONQUALIFIED APPLICANT.  YET UNDER PETITIONER'S VIEW OF THE LAW THE
SECRETARY WOULD BE WHOLLY UNABLE, EITHER IN ADMINISTRATIVE OR JUDICIAL
PROCEEDINGS, TO REMEDY SUCH ILLEGAL ACTION. 

2.  THE FIRST PARAGRAPH OF SEC. 31 - THE ONE ON WHICH PETITIONER'S
CASE DEPENDS - SPEAKS ENTIRELY IN TERMS OF POST-LEASE OCCURRENCES. 
THUS IN PROVIDING THAT A LEASE MAY BE FORFEITED IN JUDICIAL PROCEEDINGS
"WHENEVER THE LESSEE (NOT AN APPLICANT FOR A LEASE) FAILS TO COMPLY
WITH ANY OF THE PROVISIONS OF  ...  THE ACT, OF THE LEASE, OR OF THE
GENERAL REGULATIONS PROMULGATED UNDER  ...  THE ACT AND IN FORCE AT THE
DATE OF THE LEASE  ...  ", THE PROVISION CLEARLY ASSUMES THE EXISTENCE
OF A VALID LEASE.  IT THEREFORE DOES NOT COVER A SITUATION WHERE, AS
HERE, THE LEASE HAS NOT BEEN ISSUED AT THE TIME THE BREACH OF THE ACT
OR REGULATIONS OCCURS, FOR THERE IS AT THAT TIME NO LEASE TO CANCEL. 

3.  THE OTHER FORFEITURE PROVISIONS OF THE MINERAL LEASING ACT, AS
ORIGINALLY ENACTED, ARE, WITH ONE PARTIAL EXCEPTION, ALSO ALL CONCERNED
WITH POST-LEASE EVENTS.  THUS CANCELLATION OF A LEASE IN JUDICIAL
PROCEEDINGS WAS AUTHORIZED WHEN THE LESSEE DRILLED WITHIN 200 FEET OF
THE LEASE BOUNDARY (SEC. 16, 41 STAT. 443), OR FAILED TO COMPLY WITH
THE PROVISION GRANTING RIGHTS OF WAY FOR PIPELINES THROUGH PUBLIC LANDS
(SEC. 28, 41 STAT. 449).  AND WITH RESPECT TO PROSPECTING PERMITS,
ADMINISTRATIVE CANCELLATION WAS AUTHORIZED FOR THE PERMITTEE'S FAILURE
TO EXERCISE HIS PROSPECTING RIGHTS WITH DUE DILIGENCE (SEC. 26, 41
STAT. 448).  (FN8) 

THE SOLE EXCEPTION TO THIS POST-ISSUANCE SCHEME OF FORFEITURE - AND
ONLY A PARTIAL ONE AT THAT - IS FOUND IN SEC. 27, 41 STAT. 448, WHICH
PROVIDES FOR JUDICIAL FORFEITURE OF INTERESTS IN EXCESS OF CERTAIN
MINIMUM ACREAGE ALLOWANCES.  BUT EVEN HERE IT IS APPARENT THAT THE
STATUTE WAS LESS CONCERNED WITH INITIALLY INVALID AWARDS OF EXCESSIVE
ACREAGE THAN WITH THE SUBSEQUENT POOLING OF THE INTERESTS OF SEPARATE
GRANTEES, HAVING THE EFFECT OF AVOIDING THE ACREAGE LIMITATION. 
OBTAIN A MONOPOLY OF THE OIL RESOURCES IN PUBLIC LANDS.  SEE H.R. REP.
NO. 206, 65TH CONG., 2D SESS., P. 5. 

4.  THE BACKGROUND OF THE MINERAL LEASING ACT ALSO POINTS AGAINST THE
LIKELIHOOD THAT CONGRESS INTENDED TO CURTAIL THE SECRETARY'S GENERAL
POWER RESPECTING ADMINISTRATIVE CANCELLATION OF LEASES WHICH HAD BEEN
INVALIDLY ISSUED (PP. 476-478, SUPRA). 

PUBLIC LANDS VALUABLE FOR THEIR OIL DEPOSITS HAD BEEN OPENED TO ENTRY
AS PLACER MINING CLAIMS BY THE ACT OF FEBRUARY 11, 1897, 29 STAT. 526. 
IN 1909, CONFRONTED WITH A RAPID DEPLETION OF PETROLEUM RESERVES UNDER
THIS SYSTEM, THE PRESIDENT ISSUED A PROCLAMATION WITHDRAWING FROM
FURTHER ENTRY PENDING THE ENACTMENT OF CONSERVATION LEGISLATION UPWARDS
OF 3,000,000 ACRES OF LAND IN CALIFORNIA AND WYOMING.  IN 1914 A
MINERAL LEASING BILL PASSED BOTH HOUSES OF CONGRESS BUT DIED IN
CONFERENCE AT THE CLOSE OF THE SESSION, SEE H.R. REP. NO. 668, 63D
CONG., 2D SESS., AND A MINERAL LEASING PROGRAM WAS CONSIDERED BY EACH
SUBSEQUENT CONGRESS UNTIL THE MINERAL LEASING ACT OF 1920 WAS PASSED. 
THE COMMITTEE REPORTS REVEAL THAT ONE OF THE MAIN CONGRESSIONAL
CONCERNS WAS THE PREVENTION OF AN OVERLY RAPID CONSUMPTION OF OIL
RESOURCES THAT THE GOVERNMENT, PARTICULARLY THE NAVY, MIGHT NEED IN THE
FUTURE.  SEE H.R. REP. NO. 206, 65TH CONG., 2D SESS. 5.  CONSERVATION
THROUGH CONTROL WAS THE DOMINANT THEME OF THE DEBATES.  SEE, E.G., H.R.
REP. NO. 398, 66TH CONG., 1ST SESS. 12-13.  THE REPORT ON AN EARLIER
VERSION OF THE BILL THAT EVENTUALLY BECAME THE MINERAL LEASING ACT
STATED: 

"THE LEGISLATION PROVIDED FOR HEREIN, IT IS THOUGHT, WILL GO A LONG
WAY TOWARD  ...  RESERVING TO THE GOVERNMENT THE RIGHT TO SUPERVISE,
CONTROL, AND REGULATE THE  ...  DEVELOPMENT OF NATURAL RESOURCES, AND
PREVENT MONOPOLY AND WASTE AND OTHER LAX METHODS THAT HAVE GROWN UP IN
THE ADMINISTRATION OF OUR PUBLIC-LAND LAWS."  H.R. REP. NO. 1138, 65TH
CONG., 3D SESS. 19. 

IT WOULD THUS BE SURPRISING TO FIND IN THE ACT, WHICH WAS INTENDED TO
EXPAND, NOT CONTRACT, THE SECRETARY'S CONTROL OVER THE MINERAL LANDS OF
THE UNITED STATES, A RESTRICTION ON THE SECRETARY'S POWER TO CANCEL
LEASES ISSUED THROUGH ADMINISTRATIVE ERROR - A POWER WHICH WAS THEN
ALREADY FIRMLY ESTABLISHED.  SEE PP. 476-478, SUPRA.  MORE
PARTICULARLY, WE CAN PERCEIVE NO REASON WHY CONGRESS SHOULD HAVE GIVEN
THE SECRETARY AUTHORITY TO CANCEL ADMINISTRATIVELY A PROSPECTING PERMIT
(LATER A NONCOMPETITIVE LEASE), SEC. 26, 41 STAT.  448, ON THE BASIS OF
POST-ISSUANCE EVENTS, BUT IMPLICITLY DENIED HIM THAT POWER IN RESPECT
OF PRE-ISSUANCE OCCURRENCES. 

THE FRAGMENTARY EXCERPTS OF LEGISLATIVE HISTORY RELIED ON BY
PETITIONER DO NOT SUGGEST AN OPPOSITE CONCLUSION.  THE COMMENT THAT
"THE SECRETARY OF THE INTERIOR HAS NO RIGHT OR AUTHORITY UNDER THE BILL
TO CANCEL A LEASE" WAS MADE IN THE COURSE OF A DISCUSSION ON THE FLOOR
OF THE SENATE ABOUT LANDS ON WHICH THERE WERE PRODUCING WELLS IN
EXISTENCE, AND IT WAS ASSUMED THAT THERE HAD BEEN A POST-ISSUANCE
VIOLATION OF THE TERMS OF THE LEASE; (FN9) THE SECRETARY HERE CLAIMS NO
AUTHORITY TO CANCEL A LEASE IN SUCH A SITUATION.  THE REMARK IN THE
HOUSE DEBATES THAT "THERE MUST BE A SHOWING MADE IN COURT BEFORE THE
FORFEITURE CAN BE SECURED" OCCURRED IN DISCUSSION RELATING TO SEC. 27
OF THE ACT, (FN10) WHICH IS, AS WE HAVE SEEN, A PARTIAL EXCEPTION TO
THE GENERAL SCHEME OF FORFEITURES. 

                  III. 

FROM THE BEGINNINGS OF THE MINERAL LEASING ACT THE SECRETARY HAS
CONCEIVED THAT HE HAD THE POWER DRAWN IN QUESTION HERE, AND CONGRESS
HAS NEVER INTERFERED WITH ITS EXERCISE. 

THE POWER WAS FIRST INVOKED WITH RESPECT TO PROSPECTING PERMITS, AS
TO WHICH THE STATUTE AUTHORIZED ADMINISTRATIVE CANCELLATION ONLY ON THE
BASIS OF POST-ISSUANCE BREACH (NOTE 8, SUPRA, AND ACCOMPANYING TEXT). 
SEE, E.G., LEACH V. CORNELL, NO. A-1687 (UNPUBLISHED DEPARTMENTAL
DECISION, AUG. 13, 1921); MCCARTHY V. SON, NO. A-2398 (UNPUBLISHED
DECISION, MAR. 4, 1922); MURRAY V. MCNABB, NO. A-4412 (UNPUBLISHED
DECISION, FEB. 14, 1923) MOON V. WOODROW, 51 I.D. 118 (1925); DRAKE V.
SIMMONS, NO. A-16885 (UNPUBLISHED DECISION, OCT. 28, 1932).  FOLLOWING
THE REPLACEMENT OF PROSPECTING PERMITS BY NONCOMPETITIVE LEASES IN 1935
(NOTE 8, SUPRA), THE SAME POWER WAS EXERCISED WITH RESPECT TO THEM. 
SEE, E.G., FENELON BOESCHE, NO. A-21230 (UNPUBLISHED DECISION, FEB. 21,
1938); REAY V. LACKIE, 60 I.D. 29 (1947); IOLA MORROW, NO. A-27177
(UNPUBLISHED DECISION, OCT. 10, 1955); R.S.  PROWS, 66 I.D. 19 (1959). 
(FN11) 

ALTHOUGH THE ACT, AS IT RELATES TO OIL AND GAS LEASES, HAS BEEN
AMENDED A DOZEN TIMES IN THE LAST 40 YEARS, (FN12) CONGRESS HAS NEVER
INTERFERED WITH THIS LONG-CONTINUED ADMINISTRATIVE PRACTICE.  THE
CONCLUSION IS PLAIN THAT CONGRESS, IF IT DID NOT RATIFY THE SECRETARY'S
CONDUCT, AT LEAST DID NOT REGARD IT AS INCONSISTENT WITH THE MINERAL
LEASING ACT.  CF. IVANHOE IRRIG.  DIST.  V. MCCRACKEN, 357 U.S. 275,
293; FLEMING V. MOHAWK CO., 331 U.S. 111, 116; BILLINGS V. TRUESDELL,
321 U.S. 542, 552-553. 

                               IV. 

THE PRESENT CASE IS A PECULIARLY APPROPRIATE ONE FOR ADMINISTRATIVE
DETERMINATION IN THE FIRST INSTANCE.  AT ISSUE WAS SIMPLY THE QUESTION
WHETHER PETITIONER'S LEASE OFFER WAS DEFECTIVE BECAUSE IT FAILED TO
INCLUDE AN ADJOINING 40-ACRE TRACT UNDER APPLICATION BY ANOTHER PARTY,
AND THIS QUESTION HAD ALREADY BEEN DECIDED ADVERSELY TO PETITIONER'S
POSITION BY THE SECRETARY IN A PREVIOUS CASE INTERPRETING THE GOVERNING
DEPARTMENTAL REGULATIONS.  NATALIE Z. SHELL, SUPRA.  MATTERS OF THIS
NATURE DO NOT WARRANT INITIAL SUBMISSION TO THE JUDICIAL PROCESS. 
INDEED THE MAGNITUDE AND COMPLEXITY OF THE LEASING PROGRAM CONDUCTED BY
THE SECRETARY (FN13) MAKE IT LIKELY THAT A SERIOUSLY DETRIMENTAL EFFECT
ON THE PROMPT AND EFFICIENT ADMINISTRATION OF BOTH THE PUBLIC DOMAIN
AND THE FEDERAL COURTS MIGHT WELL BE THE CONSEQUENCE OF A SHIFT FROM
THE SECRETARY TO THE COURTS OF THE POWER TO CANCEL SUCH DEFECTIVE
LEASES. 

RECOGNITION OF THE SECRETARY'S POWER HERE SERVES TO PROTECT THE
PUBLIC INTEREST IN THE ADMINISTRATION OF THE PUBLIC DOMAIN. 
CANCELLATION OF THIS KIND OF ERRONEOUSLY ISSUED LEASE GIVES EFFECT TO
REGULATIONS DESIGNED TO CHECK THE UNDUE SPLITTING UP OF TRACTS, WHICH
MIGHT FACILITATE FRAUDS, HINDER THE DEVELOPMENT OF OIL AND GAS
RESOURCES, AND RENDER SUPERVISION VERY BURDENSOME.  SEE ANNIE DELL
WHEATLEY, 62 I.D. 292, 293-294 (1955).  IN ADDITION, EXERCISE OF THE
ADMINISTRATIVE POWER IN CASES OF THIS TYPE SAFEGUARDS THE STATUTORY
RIGHTS OF CONFLICTING CLAIMANTS. 

IN THE DAY-TO-DAY OPERATION OF THE BUREAU OF LAND MANAGEMENT, THE
MANAGERS OF THE LOCAL LAND OFFICES ACT ON EACH LEASE APPLICATION IN
CHRONOLOGICAL SEQUENCE.  IF THE LAND IS AVAILABLE, IF THE APPLICANT IS
QUALIFIED, AND IF THE APPLICATION APPEARS TO CONFORM TO THE
REGULATIONS, A LEASE WILL ISSUE.  IN DUE COURSE THE MANAGER WILL COME
TO CONFLICTING APPLICATIONS FOR THE SAME LAND.  IF A LATER APPLICANT IS
NOT THE FIRST QUALIFIED, HIS APPLICATION WILL BE DENIED.  THE NOTICE OF
DENIAL WILL PROBABLY AFFORD THE FIRST OCCASION FOR AN APPLICANT TO
INVESTIGATE WHETHER HE WAS IN TRUTH THE FIRST QUALIFIED APPLICANT, AND
TO APPEAL ON THIS GROUND TO THE DIRECTOR OF THE BUREAU OF LAND
MANAGEMENT AND THE SECRETARY OF THE INTERIOR.  THUS, GIVEN THE NATURE
OF THE LAND OFFICE'S BUSINESS, THE POWER OF CANCELLATION, AT LEAST
WHILE CONFLICTING APPLICATIONS ARE PENDING, IS ESSENTIAL TO SECURE THE
RIGHTS OF COMPETING APPLICANTS.  (FN14) 

WE SANCTION NO BROADER RULE THAN IS CALLED FOR BY THE EXIGENCIES OF
THE GENERAL SITUATION AND THE CIRCUMSTANCES OF THIS PARTICULAR CASE. 
WE HOLD ONLY THAT THE SECRETARY HAS THE POWER TO CORRECT ADMINISTRATIVE
ERRORS OF THE SORT INVOLVED HERE BY CANCELLATION OF LEASES IN
PROCEEDINGS TIMELY INSTITUTED BY COMPETING APPLICANTS FOR THE SAME
LAND. 

IN SO HOLDING WE DO NOT OPEN THE DOOR TO ADMINISTRATIVE ABUSES.  THE
REGULATIONS OF THE DEPARTMENT OF THE INTERIOR PROVIDE FOR ADVERSARY
PROCEEDINGS ON APPEALS TAKEN WITHIN THE DEPARTMENT WHERE OTHER PRIVATE
PARTIES WILL BE AFFECTED BY THE DECISION.  SEE GENERALLY 43 CFR, PT.
221.  APPEAL IS OF RIGHT, 43 CFR SECS. 221.1, 221.31, THE APPELLANT IS
REQUIRED TO NOTIFY HIS OPPONENT, 43 CFR SECS. 221.4, 221.34, AND THE
LATTER HAS FULL RIGHTS OF PARTICIPATION, 43 CFR SECS. 221.5-221.6,
221.35.  AND FINAL ACTION BY THE SECRETARY, SEE 43 CFR SEC. 221.37, HAS
ALWAYS BEEN SUBJECT TO JUDICIAL REVIEW.  30 U.S.C.  (SUPP. IV, 1963),
SEC. 226-2; SEE, E.G., NOBLE V. UNION RIVER LOGGING R. CO., 147 U.S.
165; MOORE V. ROBBINS, SUPRA. 

WE CONCLUDE THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE
AFFIRMED. 

FN1  COMPETITIVE BIDDING IS REQUIRED FOR LEASES OF LANDS THAT ARE
WITHIN KNOWN GEOLOGIC STRUCTURES. 

FN2  PETITIONER IS ACTUALLY THE ADMINISTRATOR OF THE ESTATE OF THE
ORIGINAL APPLICANT, BUT FOR CONVENIENCE THIS OPINION WILL DISREGARD THE
DISTINCTION. 

FN3  PENDING THE OUTCOME OF THIS LITIGATION, THE LAND OFFICE MANAGER
HAS WITHHELD CANCELLATION OF PETITIONER'S LEASE. 

FN4  WE LIMITED THE WRIT OF CERTIORARI TO THE SINGLE QUESTION OF THE
AUTHORITY OF THE SECRETARY TO CANCEL THIS LEASE ADMINISTRATIVELY, 371
U.S. 886, NOT BRINGING HERE FOR REVIEW THE VALIDITY OF THE SECRETARY'S
INTERPRETATION OF THE MINIMUM-ACREAGE REGULATION WHICH WAS SUSTAINED BY
THE COURT OF APPEALS. 

FN5  SEE NOTE 8, INFRA. 

FN6  R.S. SEC. 441, 5 U.S.C. SEC. 485, CHARGES THE SECRETARY "WITH
THE SUPERVISION OF PUBLIC BUSINESS RELATING TO  ...  PUBLIC LANDS,
INCLUDING MINES."  HE IS DIRECTED BY R.S. SEC. 453, 43 U.S.C. SEC. 2,
TO "PERFORM ALL EXECUTIVE DUTIES  ...  IN ANYWISE RESPECTING  ...
PUBLIC LANDS (OF THE UNITED STATES)," AND R.S. SEC. 2478, 43 U.S.C.
SEC.  1201, AUTHORIZES HIM "TO ENFORCE AND CARRY INTO EXECUTION, BY
APPROPRIATE REGULATIONS, EVERY PART OF THE PROVISIONS OF  ...  THE
TITLE DEALING WITH PUBLIC LANDS NOT OTHERWISE SPECIALLY PROVIDED FOR." 

FN7  IN CONTRAST, COMPARE THE INTEREST OF A MINING CLAIMANT WHOSE
LOCATION IS PERFECTED: 

"THE RULE IS ESTABLISHED BY INNUMERABLE DECISIONS OF THIS COURT, AND
OF STATE AND LOWER FEDERAL COURTS, THAT WHEN THE LOCATION OF A MINING
CLAIM IS PERFECTED UNDER THE LAW, IT HAS THE EFFECT OF A GRANT BY THE
UNITED STATES OF THE RIGHT OF PRESENT AND EXCLUSIVE POSSESSION.  THE
CLAIM IS PROPERTY IN THE FULLEST SENSE OF THAT TERM; AND MAY BE SOLD,
TRANSFERRED, MORTGAGED, AND INHERITED WITHOUT INFRINGING ANY RIGHT OR
TITLE OF THE UNITED STATES.  THE RIGHT OF THE OWNER IS TAXABLE BY THE
STATE; AND IS 'REAL PROPERTY' SUBJECT TO THE LIEN OF A JUDGMENT  ...  .
THE OWNER IS NOT REQUIRED TO PURCHASE THE CLAIM OR SECURE PATENT FROM
THE UNITED STATES; BUT SO LONG AS HE COMPLIES WITH THE PROVISIONS OF
THE MINING LAWS; HIS POSSESSORY RIGHT, FOR ALL PRACTICAL PURPOSES OF
OWNERSHIP, IS AS GOOD AS THOUGH SECURED BY PATENT."  WILBUR V.
KRUSHNIC, 280 U.S. 306, 316-317. 

FN8  THE ACT ORIGINALLY AUTHORIZED ISSUANCE OF A PROSPECTING PERMIT
TO A QUALIFIED APPLICANT FOR LAND NOT WITHIN A KNOWN GEOLOGIC
STRUCTURE.  SEC. 13, 41 STAT. 441.  IN 1935 PROSPECTING PERMITS WERE
CONVERTED TO NONCOMPETITIVE LEASES, 49 STAT. 674, 676, AND THE
PROVISION FOR ADMINISTRATIVE CANCELLATION FOR BREACH OF THE CONDITIONS
OF THE GRANT BEFORE THE LAND WAS PROVEN WAS CARRIED OVER TO SEC. 17. 
49 STAT. 678.  IN 1946 THIS PROVISION WAS TRANSFERRED FROM SEC. 17 TO
SEC. 31.  60 STAT. 956.  AS EXPLAINED IN S. REP. NO. 1392, 79TH CONG.,
2D SESS., P. 3, THIS TRANSFER EFFECTED NO SUBSTANTIVE CHANGE IN THE
SECRETARY'S POWERS: 

"SECTION 31 OF THE MINERAL LEASING ACT IS AMENDED TO CONSOLIDATE IN
THAT SECTION VARIOUS PROVISIONS OF THE ACT RELATING TO TERMINATION OR
FORFEITURE OF LEASES FOR DEFAULT BY THE LESSEE, THE SUBSTANCE OF THE
EXISTING LAW BEING RETAINED IN THE AMENDED SECTION." 

FN9  58 CONG. REC. 4168. 

FN10  58 CONG. REC. 7604. 

FN11  IN MELISH CONSOLIDATED PLACER OIL MINING CO. V. TESTERMAN, 53
I.D. 205 (1930), THE FIRST ASSISTANT SECRETARY OF THE INTERIOR STATED
THAT THE "LEASE ONCE GRANTED WAS BEYOND RECALL BY THE SECRETARY AND IS
ONLY SUBJECT TO CANCELLATION IN THE FEDERAL COURTS (SEC. 31, ACT OF
FEBRUARY 25, 1920)."  THIS DICTUM, EXPRESSED WITH REFERENCE TO A
COMPETITIVE LEASE, CASTS NO DOUBT ON THE SECRETARY'S UNIFORM COURSE OF
DECISION REGARDING PERMITS AND NONCOMPETITIVE LEASES. 

FN12  SEE ACT OF APRIL 30, 1926, 44 STAT. 373; ACT OF JULY 3, 1930,
46 STAT. 1007; ACT OF MARCH 4, 1931, 46 STAT. 1523; ACT OF AUGUST 21,
1935, 49 STAT. 674; ACT OF AUGUST 26, 1937, 50 STAT. 842; ACT OF AUGUST
8, 1946, 60 STAT. 950; ACT OF JUNE 1, 1948, 62 STAT. 285; ACT OF
SEPTEMBER 1, 1949, 63 STAT. 682; ACT OF JULY 29, 1954, 68 STAT.  583;
ACT OF AUGUST 2, 1954, 68 STAT. 648; ACT OF SEPTEMBER 21, 1959, 73
STAT. 571; ACT OF SEPTEMBER 2, 1960, 74 STAT. 781. 

FN13  THE SECRETARY, IN HIS BRIEF (PP. 12-13), INFORMS US THAT ON
JUNE 30, 1960, THERE WERE 139,000 OUTSTANDING LEASES SUPERVISED BY THE
DEPARTMENT OF THE INTERIOR UNDER THE MINERAL LEASING ACT, WHICH COVERED
113,000,000 ACRES.  THE TOTAL NUMBER OF OUTSTANDING LEASES SUPERVISED
BY THE DEPARTMENT UNDER ALL PROGRAMS - PUBLIC LANDS, ACQUIRED LANDS,
INDIAN, NAVAL PETROLEUM RESERVE AND OUTER CONTINENTAL SHELF - WAS
159,000, COVERING 125,000,000 ACRES. 

IN MANY INSTANCES THERE ARE MULTIPLE APPLICATIONS FOR LEASES OF THE
SAME LAND, SOMETIMES HUNDREDS FOR THE SAME TRACT.  FOR EXAMPLE, IN A
ONE-MONTH PERIOD IN 1961 THERE WERE 10,742 APPLICATIONS FILED IN THE
SANTA FE LAND OFFICE ALONE, MANY OF WHICH AFFECTED THE SAME ACREAGE. 
AND IN THE THREE-YEAR PERIOD ENDING JUNE 30, 1960, THERE WERE 1,129
ADMINISTRATIVE CANCELLATIONS OUT OF THE TOTAL OF 54,000 LEASES ISSUED
DURING THAT PERIOD. 

FN14  PETITIONER CONTENDS THAT IF AN ADMINISTRATIVE CANCELLATION
PROCEEDING IS PERMITTED TO THE SECRETARY, IT WOULD BE IMPRUDENT FOR A
LESSEE, SINCE HIS INTEREST WOULD THUS BE PRECARIOUS, TO ASSUME THE
FINANCIAL RISK OF DEVELOPING HIS LEASE, AND THERFORE THE EFFECTIVE TERM
OF HIS LEASE WOULD BE CURTAILED EVEN IF HE WERE FINALLY HELD TO BE THE
FIRST QUALIFIED APPLICANT.  BUT THE SAME DELAY - AND PERHAPS EVEN A
LONGER ONE - WOULD RESULT IF THE SECRETARY WERE REMITTED TO JUDICIAL
PROCEEDINGS FOR CANCELLATION. 
..END :



CAMPBELL V. UNITED STATES 373 U.S. 487 


NO. 631.  ARGUED APRIL 25, 1963.  - DECIDED MAY 27, 1963.  - 303 F.2D
747, JUDGMENT VACATED AND CASE REMANDED. 


AFTER THIS COURT'S REMAND OF THIS CASE, 365 U.S. 85, FOR FURTHER
PROCEEDINGS TO DETERMINE WHETHER PETITIONER'S MOTION UNDER THE JENCKS
ACT, 18 U.S.C. SEC. 3500, FOR PRODUCTION OF A PRETRIAL STATEMENT OF A
GOVERNMENT WITNESS HAD BEEN ERRONEOUSLY DENIED BY THE FEDERAL DISTRICT
COURT IN THEIR TRIAL FOR BANK ROBBERY, FURTHER HEARINGS WERE HELD IN
THE DISTRICT COURT, FROM WHICH IT APPEARED THAT, AFTER INTERVIEWING THE
WITNESS AND TAKING LONGHAND NOTES OF HIS ACCOUNT OF THE ROBBERY, AN
F.B.I. AGENT HAD REPEATED BACK TO THE WITNESS THIS ACCOUNT, REFERRING
TO HIS NOTES; THE WITNESS HAD INDICATED THAT THE AGENT'S ORAL
PRESENTATION WAS ACCURATE BUT HAD NOT SIGNED THE NOTES; SOME HOURS
LATER THE AGENT HAD INCORPORATED THE SUBSTANCE OF THESE NOTES IN AN
INTERVIEW REPORT; AND HE HAD THEN DESTROYED THE NOTES.  THE DISTRICT
COURT FOUND SPECIFICALLY THAT THE AGENT'S ORAL PRESENTATION TO THE
WITNESS HAD "NOT MERELY ADHERED TO THE SUBSTANCE (OF THE NOTES) BUT SO
FAR AS PRACTICAL TO THE PRECISE WORDS"; THAT THE WITNESS HAD ADOPTED
THIS PRESENTATION; THAT THE INTERVIEW REPORT WAS "ALMOST IN IPSISSIMA
VERBA THE NARRATIVE THE AGENT HAD JUST CHECKED WITH" THE WITNESS; AND
THAT, THEREFORE, THE REPORT WAS PRODUCIBLE AS "A WRITTEN STATEMENT MADE
BY SAID WITNESS AND  ...  ADOPTED ...  BY HIM," WITHIN THE MEANING OF
SEC. 3500(E)(1).  THE COURT OF APPEALS REVERSED.  HELD:  THE INTERVIEW
REPORT SHOULD HAVE BEEN PRODUCED UNDER SEC. 3500(E)(1) AT PETITIONER'S
TRIAL; THE JUDGMENT OF THE COURT OF APPEALS AND THE JUDGMENTS OF
CONVICTION ARE VACATED; AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS.  PP. 488-497. 

(A)  ON THIS RECORD, THE PRODUCIBILITY OF THE INTERVIEW REPORT UNDER
SEC. 3500(E)(1) DEPENDED UPON THE ANSWERS TO TWO QUESTIONS:  (1)
WHETHER THE AGENT'S ORAL VERSION OF THE NOTES MAY FAIRLY BE DEEMED A
READING BACK OF THE NOTES TO THE WITNESS, AND (2) WHETHER THE INTERVIEW
REPORT MAY FAIRLY BE DEEMED A COPY OF THE NOTES.  PP. 492-493. 

(B)  THESE ARE QUESTIONS OF FACT, THE DETERMINATION OF WHICH BY THE
DISTRICT JUDGE MAY NOT BE DISTURBED UNLESS CLEARLY ERRONEOUS, AND THE
DISTRICT JUDGE'S FINDINGS THEREON WERE NOT CLEARLY ERRONEOUS.  PP. 493
495. 

(C)  THERE WERE DISCREPANCIES BETWEEN THE TESTIMONY OF THE WITNESS AT
THE TRIAL AND HIS STATEMENTS IN THE INTERVIEW REPORT, AND FAIRNESS IN
FEDERAL CRIMINAL PROCEDURE, WHICH THE JENCKS ACT WAS ENACTED TO SECURE,
DEMANDS THAT THIS INTERVIEW REPORT, REASONABLY FOUND TO BE AN ACCURATE
COPY OF A WRITTEN STATEMENT MADE BY THE WITNESS THE DAY AFTER THE
ROBBERY AND ADOPTED BY HIM AS HIS OWN, BE PRODUCIBLE FOR IMPEACHMENT
PURPOSES.  PP.  495-497. 

CAMPBELL ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, INVOLVING QUESTIONS UNDER THE SO-CALLED JENCKS ACT, 18
U.S.C. SEC. 3500, (FN1) IS BEFORE THE COURT FOR THE SECOND TIME.  WHEN
IT WAS FIRST HERE, WE HELD INADEQUATE THE PROCEDURE EMPLOYED BY THE
TRIAL COURT FOR ASCERTAINING WHETHER NOTES TAKEN BY FEDERAL AGENT JOHN
F. TOOMEY, JR., AT HIS INTERVIEW WITH DOMINIC STAULA - A KEY GOVERNMENT
WITNESS AT PETITIONERS' TRIAL FOR BANK ROBBERY - OR THE INTERVIEW
REPORT COMPILED BY TOOMEY FROM HIS NOTES, WERE PRODUCIBLE STATEMENTS
WITHIN THE MEANING OF SEC. 3500(E)(1) OR (E)(2).  365 U.S. 85.  (FN2)
WE DECLINED TO ORDER PETITIONERS' CONVICTIONS VACATED, BUT REMANDED "TO
THE TRIAL COURT WITH DIRECTION TO HOLD A NEW INQUIRY CONSISTENT WITH
THIS OPINION  ...  AND SUPPLEMENT THE RECORD WITH NEW FINDINGS  ...
."  365 U.S., AT 98-99.  ON REMAND THE TRIAL JUDGE HELD A HEARING AT
WHICH TOOMEY BUT NOT STAULA TESTIFIED.  TOOMEY GAVE THE FOLLOWING
TESTIMONY:  ON THE DAY FOLLOWING THE ROBBERY HE INTERVIEWED STAULA
PRIVATELY.  STAULA WAS A DEPOSITOR OF THE BANK AND HAD BEEN AN
EYEWITNESS TO THE CRIME.  TOOMEY TOOK LONGHAND NOTES OF THE INTERVIEW,
WHICH WERE "COMPLETE  ...  WITH RESPECT TO THE PERTINENT INFORMATION"
GIVEN BY STAULA, ALTHOUGH NOT A COMPLETE, WORD-FOR-WORD TRANSCRIPTION
OF WHAT HE HAD SAID.  TOOMEY THEN RECITED BACK TO STAULA THE SUBSTANCE
OF HIS ACCOUNT, REFERRING TO HIS NOTES, AND STAULA SAID THAT TOOMEY HAD
GOT IT STRAIGHT.  STAULA DID NOT READ OR SIGN THE NOTES.  ABOUT SEVEN
HOURS LATER TOOMEY, AFTER REARRANGING HIS NOTES TO ACCORD WITH THE
CHRONOLOGY OF STAULA'S ACCOUNT, DICTATED THE INTERVIEW REPORT, RELYING
PRIMARILY ON HIS NOTES BUT ALSO ON MEMORY.  AFTER CHECKING THE
TRANSCRIBED REPORT AGAINST THE NOTES AND FINDING IT ACCURATE, HE
DESTROYED THE NOTES.  (FN3) 

ON THE BASIS OF THIS TESTIMONY AND THE RECORD OF STAULA'S TESTIMONY
AT PETITIONERS' TRIAL, THE TRIAL JUDGE HELD THAT NEITHER THE NOTES NOR
THE INTERVIEW REPORT WAS PRODUCIBLE UNDER THE JENCKS ACT.  206 F. SUPP.
213.  ON APPEAL, THE COURT OF APPEALS EXPRESSED DISSATISFACTION WITH
THE JUDGE'S CONDUCT OF THE HEARING BUT ACCEPTED HIS RULING THAT THE
INTERVIEW REPORT WAS NOT PRODUCIBLE.  296 F.2D 527.  HOWEVER, THE COURT
HELD THAT THE STATUS OF THE NOTES COULD NOT BE ADEQUATELY DETERMINED
WITHOUT FRESH TESTIMONY FROM STAULA.  (FN4)  ACCORDINGLY THE COURT,
WHILE RETAINING JURISDICTION OF THE APPEAL GENERALLY, ORDERED A FURTHER
HEARING BEFORE A DISTRICT JUDGE OTHER THAN THE TRIAL JUDGE, WITH BOTH
STAULA AND TOOMEY TO TESTIFY, FOR A DETERMINATION "WHETHER STAULA
SIGNED OR OTHERWISE ADOPTED OR APPROVED THE NOTES."  ID., AT 534. 

AT THIS HEARING STAULA TESTIFIED THAT HE HAD NOT READ OR SIGNED
TOOMEY'S NOTES BUT HAD TOLD TOOMEY THAT WHAT THE LATTER HAD REPEATED
BACK TO HIM WAS, TO THE BEST OF HIS KNOWLEDGE, WHAT HAD HAPPENED. 
TOOMEY AMPLIFIED HIS EARLIER TESTIMONY.  ON THIS RECORD THE SECOND
DISTRICT JUDGE CONCLUDED, 199 F. SUPP. 905, THAT TOOMEY'S ORAL
PRESENTATION TO STAULA HAD "NOT MERELY ADHERED TO THE SUBSTANCE (OF THE
NOTES) BUT SO FAR AS PRACTICAL TO THE PRECISE WORDS," ID., AT 906; THAT
STAULA HAD ADOPTED THIS PRESENTATION; THAT THE INTERVIEW REPORT WAS
"ALMOST IN IPSISSIMA VERBA THE NARRATIVE  ...  (TOOMEY) HAD JUST
CHECKED WITH STAULA," ID., AT 907; AND THAT THEREFORE THE REPORT WAS
PRODUCIBLE AS "A WRITTEN STATEMENT MADE BY SAID WITNESS AND  ...
ADOPTED  ...  BY HIM."  18 U.S.C. SEC.  3500(E)(1). 

THE COURT OF APPEALS THEN FILED A SUPPLEMENTAL OPINION IN WHICH IT
ACCEPTED THE SECOND DISTRICT JUDGE'S FINDINGS BUT HELD THAT THE REPORT
WAS NEITHER A WRITTEN STATEMENT APPROVED BY STAULA NOR A COPY OF SUCH
STATEMENT, AND HENCE DID NOT COME WITHIN SEC.  3500(E)(1).  303 F.2D
747.  WE GRANTED CERTIORARI AND LEAVE TO PROCEED IN FORMA PAUPERIS. 
371 U.S. 919.  WE REVERSE.  WE AGREE WITH THE SECOND DISTRICT JUDGE
THAT THE INTERVIEW REPORT WAS PRODUCIBLE UNDER SEC. 3500(E)(1);
CONSEQUENTLY, WE DO NOT REACH THE OTHER ISSUES TENDERED BY
PETITIONERS.  (FN5) 

IN CAMPBELL I, WE POSED THE FOLLOWING QUESTIONS TO FRAME THE HEARING
ON REMAND: 

"DID TOOMEY WRITE DOWN WHAT STAULA TOLD HIM AT THE INTERVIEW?  IF SO,
DID TOOMEY GIVE STAULA THE PAPER 'TO READ OVER, TO MAKE SURE THAT IT
WAS RIGHT,' (AS STAULA HAD TESTIFIED AT THE TRIAL) AND DID STAULA SIGN
IT? 

"WAS THE INTERVIEW REPORT THE PAPER STAULA DESCRIBED, OR A COPY OF
THAT PAPER?  IN EITHER CASE, AS THE TRIAL JUDGE RULED, THE INTERVIEW
REPORT WOULD BE A PRODUCIBLE 'STATEMENT' UNDER SUBSECTION (E)(1)."  365
U.S., AT 93. 

WE NOW KNOW THAT THE "PAPER STAULA DESCRIBED" WAS TOOMEY'S INTERVIEW
NOTES, AND THAT STAULA ADOPTED TOOMEY'S ORAL PRESENTATION BASED ON THE
NOTES.  PLAINLY, IF TOOMEY IN MAKING THE ORAL PRESENTATION WAS IN FACT
READING THE NOTES BACK TO STAULA, THE LATTER'S ADOPTION OF THE ORAL
PRESENTATION WOULD CONSTITUTE ADOPTION OF A WRITTEN STATEMENT MADE BY
HIM, NAMELY, THE NOTES.  SEE UNITED STATES V. ANNUNZIATO, 293 F.2D 373,
382 (C.A.2D CIR. 1961); UNITED STATES V. AVILES, 197 F. SUPP. 536, 556
(D.C.S.D.N.Y. 1961).  (FN6)  THE PRODUCIBILITY OF THE INTERVIEW REPORT
UNDER SEC. 3500(E)(1) WOULD THEREFORE SEEM TO DEPEND UPON THE ANSWERS
TO TWO QUESTIONS:  WHETHER TOOMEY'S ORAL VERSION OF THE NOTES MAY
FAIRLY BE DEEMED A READING BACK OF THE NOTES TO STAULA; AND WHETHER THE
INTERVIEW REPORT MAY FAIRLY BE DEEMED A COPY OF THE NOTES. 

WE THINK THESE QUESTIONS PROPERLY ARE ONES OF FACT, THE DETERMINATION
OF WHICH BY THE DISTRICT JUDGE MAY NOT BE DISTURBED UNLESS CLEARLY
ERRONEOUS.  "FINAL DECISION AS TO PRODUCTION MUST REST, AS IT DOES SO
VERY OFTEN IN PROCEDURAL AND EVIDENTIARY MATTERS, WITHIN THE GOOD SENSE
AND EXPERIENCE OF THE DISTRICT JUDGE GUIDED BY THE STANDARDS WE HAVE
OUTLINED, AND SUBJECT TO THE APPROPRIATELY LIMITED REVIEW OF APPELLATE
COURTS."  PALERMO V. UNITED STATES, 360 U.S. 343, 353.  CF. ID., AT 360
(CONCURRING OPINION); HANCE V. UNITED STATES, 299 F.2D 389, 397 (C.A.
8TH CIR. 1962); UNITED STATES V. THOMAS, 282 F.2D 191 (C.A.2D CIR.
1960).  "THE INQUIRY  ...  IS A PROCEEDING NECESSARY TO AID THE JUDGE
TO DISCHARGE THE RESPONSIBILITY LAID UPON HIM TO ENFORCE THE STATUTE. 
...  THE STATUTE ...  IMPLIES THE DUTY IN THE TRIAL JUDGE AFFIRMATIVELY
TO ADMINISTER THE STATUTE IN SUCH WAY AS CAN BEST SECURE RELEVANT AND
AVAILABLE EVIDENCE  ...  ."  365 U.S., AT 95.  TO DETERMINE THE
ACCURACY WITH WHICH TOOMEY'S ORAL PRESENTATION AND INTERVIEW REPORT
REPRODUCED HIS NOTES WAS PREEMINENTLY A TASK FOR A NISI PRIUS, NOT AN
APPELLATE, COURT.  IT REQUIRED THE AD HOC APPRAISAL OF ONE OF THE
"MYRIAD" "POSSIBLE PERMUTATIONS OF FACT AND CIRCUMSTANCE," PALERMO V.
UNITED STATES, SUPRA, AT 353, PRESENT IN SUCH CASES; IT MAY WELL HAVE
DEPENDED UPON NUANCES OF TESTIMONY AND DEMEANOR OF WITNESSES; AND IT
CONCERNED A SUBJECT, RULINGS ON EVIDENCE, WHICH IS PECULIARLY THE
PROVINCE OF TRIAL COURTS.  (FN7) 

FOR THE PURPOSE OF APPLYING THE CLEARLY-ERRONEOUS STANDARD IN THE
INSTANT CASE, WE DEEM CONTROLLING THE FINDINGS OF THE SECOND DISTRICT
JUDGE.  AS THE COURT OF APPEALS CORRECTLY HELD, THE FIRST HEARING DID
NOT CONFORM TO OUR MANDATE IN CAMPBELL I BECAUSE STAULA WAS NOT CALLED
TO TESTIFY; AND THE HEARING WAS UNSATISFACTORY IN OTHER RESPECTS. 
(FN8)  MOREOVER, WHILE TOOMEY'S TESTIMONY AT THE SECOND HEARING DID NOT
CONTRADICT HIS EARLIER TESTIMONY, IT WAS CONSIDERABLY MORE DETAILED. 
ALSO, WE PERCEIVE NO BASIC INCONSISTENCY BETWEEN THE FACT-FINDINGS MADE
AT THE FIRST HEARING AND THOSE MADE AT THE SECOND, ALTHOUGH THE LATER
FINDINGS WERE MORE ELABORATE.  (FN9)  FINALLY, WE READ THE SUPPLEMENTAL
OPINION OF THE COURT OF APPEALS AS HAVING ACCEPTED THE LATER FINDINGS
AS CONTROLLING AND BASED ITS DECISION UPON THEM. 

IN SO DOING, THE COURT OF APPEALS IMPLICITLY CONCLUDED THAT THE LATER
FINDINGS WERE NOT CLEARLY ERRONEOUS.  THAT CONCLUSION WAS SURELY
SOUND.  ALTHOUGH THERE MAY WELL BE SMALL DIFFERENCES AS AMONG THE
NOTES, ORAL PRESENTATION, AND INTERVIEW REPORT, IT IS NOT SERIOUSLY
SUGGESTED THAT THERE WAS A MATERIAL VARIANCE OR INCONSISTENCY AMONG
THEM.  (FN10)  AND THE DISTRICT JUDGE WAS ENTITLED TO INFER THAT AN
AGENT OF THE FEDERAL BUREAU OF INVESTIGATION OF SOME 15 YEARS'
EXPERIENCE WOULD RECORD A POTENTIAL WITNESS' STATEMENT WITH SUFFICIENT
ACCURACY AS TO OBVIATE ANY NEED FOR THE COURTS TO CONSIDER WHETHER IT
WOULD BE "GROSSLY UNFAIR TO ALLOW THE DEFENSE TO USE STATEMENTS TO
IMPEACH A WITNESS WHICH COULD NOT FAIRLY BE SAID TO BE THE WITNESS'
OWN."  PALERMO V. UNITED STATES, SUPRA, AT 350.  WE CANNOT SAY,
THEREFORE, THAT THE SECOND DISTRICT JUDGE'S FINDING THAT THE INTERVIEW
REPORT WAS A COPY OF A WRITTEN STATEMENT MADE AND ADOPTED BY STAULA WAS
CLEARLY ERRONEOUS.  (FN11) 

OUR HOLDING TODAY ONLY GIVES EFFECT TO THE "COMMAND OF THE STATUTE
(WHICH) IS  ...  DESIGNED TO FURTHER THE FAIR AND JUST ADMINISTRATION
OF CRIMINAL JUSTICE  ...  ."  CAMPBELL I, 365 U.S., AT 92.  (FN12)
PETITIONERS - ALVIN R. CAMPBELL AND ARNOLD S. CAMPBELL, BROTHERS, AND
DONALD LESTER - WERE CONVICTED OF A SERIOUS CRIME AND SENTENCED TO LONG
PRISON TERMS.  AT THEIR TRIAL, HELD FOUR MONTHS AFTER THE BANK ROBBERY,
STAULA TESTIFIED THAT THERE HAD BEEN THREE ROBBERS.  ONE, WHO HAD WORN
"A WHITE SHIRT WITH SHORT SLEEVES," RECORD, CAMPBELL I, NO. 53, OCTOBER
TERM 1960, P. 141, HE SAID RESEMBLED LESTER.  ANOTHER, WHO "HAD ON A
BLUE SUIT," ID., AT P. 142, HE SAID RESEMBLED ARNOLD CAMPBELL.  THE
THIRD HE HAD GLIMPSED "AT THE VAULT," ID., P. 170, BUT COULD NOT
DESCRIBE.  THE INTERVIEW REPORT, HOWEVER, STATES THAT STAULA "DID NOT
OBSERVE A THIRD MAN IN THE BANK."  OF THE TWO HE DID OBSERVE, ONE IS
DESCRIBED AS WEARING A "DARK BLUE SUIT" AND "WHITE SHIRT"; BUT AT THE
TRIAL, WHEN ASKED WHETHER HE REMEMBERED "WHAT KIND OF A SHIRT, IF ANY,
THE MAN IN THE BLUE SUIT WAS WEARING," RECORD, SUPRA, P. 148, STAULA
ANSWERED:  "NO, BECAUSE I SAW HIM FROM THE SIDE.  I DIDN'T SEE THE
FRONT OF HIM.  I DIDN'T SEE HIS SHIRT."  IBID.  AND IN THE DESCRIPTION
IN THE REPORT OF THE SECOND MAN STAULA OBSERVED, THERE IS NO MENTION OF
HIS WEARING "A WHITE SHIRT WITH SHORT SLEEVES"; HE IS ONLY DESCRIBED AS
"WEARING GRAY CHINO PANTS," AND THE REPORT ADDS THAT STAULA "ONLY
OBSERVED THE MAN  ...  FOR AN INSTANT AND COULD GIVE NO FURTHER
DESCRIPTION OF HIM."  SURELY FAIRNESS IN FEDERAL CRIMINAL PROCEDURE,
WHICH THE JENCKS ACT WAS ENACTED TO SECURE, CAMPBELL I, 365 U.S., AT
92, DEMANDS THAT THIS INTERVIEW REPORT, REASONABLY FOUND TO BE AN
ACCURATE COPY OF A WRITTEN STATEMENT MADE THE DAY AFTER THE ROBBERY BY
STAULA AND ADOPTED BY HIM AS HIS OWN, BE PRODUCIBLE FOR IMPEACHMENT
PURPOSES.  (FN13) 

THE JUDGMENT OF THE COURT OF APPEALS AND THE JUDGMENTS OF CONVICTION
ARE VACATED, (FN14) AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE ACT PROVIDES IN PART: 

"(B)  AFTER A WITNESS CALLED BY THE UNITED STATES HAS TESTIFIED ON
DIRECT EXAMINATION, THE COURT SHALL, ON MOTION OF THE DEFENDANT, ORDER
THE UNITED STATES TO PRODUCE ANY STATEMENT (AS HEREINAFTER DEFINED) OF
THE WITNESS IN THE POSSESSION OF THE UNITED STATES WHICH RELATES TO THE
SUBJECT MATTER AS TO WHICH THE WITNESS HAS TESTIFIED.  IF THE ENTIRE
CONTENTS OF ANY SUCH STATEMENT RELATE TO THE SUBJECT MATTER OF THE
TESTIMONY OF THE WITNESS, THE COURT SHALL ORDER IT TO BE DELIVERED
DIRECTLY TO THE DEFENDANT FOR HIS EXAMINATION AND USE. 

     *         *         *       *         * 

"(D)  IF THE UNITED STATES ELECTS NOT TO COMPLY WITH AN ORDER OF THE
COURT UNDER PARAGRAPH (B) OR (C) HEREOF TO DELIVER TO THE DEFENDANT ANY
SUCH STATEMENT, OR SUCH PORTION THEREOF AS THE COURT MAY DIRECT, THE
COURT SHALL STRIKE FROM THE RECORD THE TESTIMONY OF THE WITNESS, AND
THE TRIAL SHALL PROCEED UNLESS THE COURT IN ITS DISCRETION SHALL
DETERMINE THAT THE INTERESTS OF JUSTICE REQUIRE THAT A MISTRIAL BE
DECLARED. 

"(E)  THE TERM 'STATEMENT,' AS USED IN SUBSECTIONS (B), (C), AND (D)
OF THIS SECTION IN RELATION TO ANY WITNESS CALLED BY THE UNITED STATES,
MEANS: 

"(1)  A WRITTEN STATEMENT MADE BY SAID WITNESS AND SIGNED OR
OTHERWISE ADOPTED OR APPROVED BY HIM; OR: 

"(2)  A STENOGRAPHIC, MECHANICAL, ELECTRICAL, OR OTHER RECORDING, OR
A TRANSCRIPTION THEREOF, WHICH IS A SUBSTANTIALLY VERBATIM RECITAL OF
AN ORAL STATEMENT MADE BY SAID WITNESS TO AN AGENT OF THE GOVERNMENT
AND RECORDED CONTEMPORANEOUSLY WITH THE MAKING OF SUCH ORAL
STATEMENT." 

FN2  SPECIFICALLY, WE HELD THAT THE DISTRICT JUDGE WAS REQUIRED TO
HOLD A NONADVERSARY HEARING ON THE PRODUCIBILITY OF THE NOTES AND
INTERVIEW REPORT.  WE ALSO DIRECTED THAT ATTENTION BE GIVEN THE
QUESTION WHAT SANCTIONS, IF ANY, WOULD BE APPROPRIATE IF IT DEVELOPED
THAT THE NOTES WERE PRODUCIBLE BUT HAD BEEN DESTROYED AND THAT NO COPY
HAD SURVIVED.  SEE 365 U.S., AT 98, 18 U.S.C. SEC. 3500(D). 

FN3  THE INTERVIEW REPORT WAS RELEASED BY THE COURT OF APPEALS AND
WAS INCLUDED IN THE RECORD BEFORE THIS COURT IN CAMPBELL I. THE FULL
TEXT OF THE REPORT IS REPRODUCED IN 365 U.S., AT 90 AND 91, N. 3. 
FN4  ALTHOUGH TOOMEY TESTIFIED AT THE HEARING THAT STAULA HAD NOT
SIGNED OR READ THE NOTES, STAULA HAD TESTIFIED AT PETITIONER'S TRIAL:
"I THINK THEY WROTE DOWN WHAT I SAID, AND THEN I THINK THEY GAVE IT
BACK TO ME TO READ OVER, TO MAKE SURE THAT IT WAS RIGHT.  AND I THINK I
HAD TO SIGN IT. NOW, I AM NOT SURE.  I COULDN'T REMEMBER BEFORE."  365
U.S., AT 89, N. 2.  STAULA WAS REFERRING TO HIS INTERVIEW WITH TOOMEY. 

FN5  THESE ISSUES, BASICALLY, ARE WHETHER THE INTERVIEW REPORT IS
PRODUCIBLE UNDER SEC. 3500(E)(2) OF THE JENCKS ACT AND WHETHER, IF THE
NOTES ARE PRODUCIBLE UNDER THE ACT, THEIR DESTRUCTION GIVES RISE TO
SANCTIONS UNDER SUBSECTION (D), OR PERMITS SECONDARY EVIDENCE OF THEIR
CONTENTS TO BE PRODUCED.  THE SECOND DISTRICT JUDGE FOUND THAT THE
INTERVIEW REPORT WAS A SUBSTANTIALLY VERBATIM RECORDING OF STAULA'S
ORAL STATEMENT TO TOOMEY AND HENCE PRODUCIBLE UNDER SEC. 3500(E)(2). 
THE COURT OF APPEALS RENDERED AN OPINION HOLDING THAT NO SANCTIONS
COULD ATTACH TO TOOMEY'S DESTRUCTION OF HIS NOTES BECAUSE SUCH
DESTRUCTION HAD NOT BEEN IN BAD FAITH.  303 F.2D, AT 751.  OUR HOLDING
THAT THE INTERVIEW REPORT IS PRODUCIBLE UNDER SEC. 3500(E)(1) MAKES IT
UNNECESSARY FOR US TO CONSIDER ANY OF THE OTHER ISSUES, AND WE INTIMATE
NO VIEW ON THE CORRECTNESS OF THE COURT OF APPEALS' RULINGS ON THEM. 

FN6  IT IS SETTLED, OF COURSE, THAT A WRITTEN STATEMENT, TO BE
PRODUCIBLE UNDER SEC.  3500(E)(1), NEED NOT BE SIGNED BY THE WITNESS,
CAMPBELL I, AT 93-94; BERGMAN V. UNITED STATES, 253 F.2D 933, 935, N. 1
(C.A. 6TH CIR. 1958); CF. UNITED STATES V. ALLEGRUCCI, 299 F.2D 811,
813 AND N. 3 (C.A. 3D CIR. 1962), OR WRITTEN BY HIM, CAMPBELL I, AT 93;
UNITED STATES V. THOMAS, 282 F.2D 191, 194 (C.A.2D CIR. 1960); H.R.
REP. NO. 700, 85TH CONG., 1ST SESS. 5-6 (1957); NOTE, THE SUPREME
COURT, 1960 TERM, 75 HARV. L. REV. 40, 181-182 (1961), OR BE A
SUBSTANTIALLY VERBATIM RECORDING OF A PRIOR ORAL STATEMENT, SEE UNITED
STATES V. MCCARTHY, 301 F.2D 796 (C.A. 3D CIR. 1962); UNITED STATES V.
BERRY, 277 F.2D 826 (C.A. 7TH CIR. 1960). 

FN7  THE PRODUCIBILITY OF STATEMENTS UNDER THE JENCKS ACT AND THEIR
ADMISSIBILITY UNDER THE RULES OF EVIDENCE ARE SEPARATE QUESTIONS,
UNITED STATES V. BERRY, 277 F.2D 826, 830 (C.A. 7TH CIR. 1960), BUT
OBVIOUSLY CLOSELY RELATED. 

FN8  "WHILE TECHNICALLY THE COURT CALLED TOOMEY ITSELF AND PERMITTED
THE DEFENDANTS TO CROSS-EXAMINE, THE RESTRICTIONS IMPOSED UPON COUNSEL
WERE SUCH THAT IT WAS CROSS-EXAMINATION IN NAME ONLY.  IN SPITE OF THE
FACT THAT THE WITNESS WAS A SPECIAL AGENT OF LONG STANDING WHO HAD
DISCUSSED HIS TESTIMONY WITH THE ASSISTANT U.S. ATTORNEY IMMEDIATELY
BEFORE THE HEARING, THE COURT HOVERED CONSTANTLY OVER HIM LIKE AN OVER
ANXIOUS MOTHER.  WITH RESPECT TO CORRELATION BETWEEN THE NOTES,
STAULA'S STATEMENTS, AND THE EVENTUAL REPORT, THE SUPREME COURT'S
DIRECTIONS FOR A NON-ADVERSARY PROCEEDING TO ASSIST THE COURT IN
PERFORMING ITS DUTY, WITH THE DEFENDANTS PERMITTED TO CROSS-EXAMINE
WERE HONORED LARGELY IN THE BREACH."  296 F.2D, AT 529. 

FN9  THE FIRST DISTRICT JUDGE'S FINDINGS, SO FAR AS PERTINENT TO THE
ISSUE OF PRODUCIBILITY UNDER SEC. 3500(E)(1), READ AS FOLLOWS: 

"3.  ...  AGENT TOOMEY REPEATED TO MR. STAULA, FROM MEMORY AND USING
THE NOTES WHICH HE HAD TAKEN ONLY TO REFRESH HIS RECOLLECTION, THE
SUBSTANCE OF THE STORY WHICH MR. STAULA HAD RELATED TO HIM ...  . 

"4.  AGENT TOOMEY DID NOT TRANSCRIBE THE STORY RELATED TO HIM BY MR.
STAULA WORD FOR WORD."  206 F. SUPP., AT 214.  WE DO NOT READ THESE
FINDINGS THAT TOOMEY'S ORAL PRESENTATION WAS NOT AN ACCURATE
REPRODUCTION OF THE CONTENTS OF THE NOTES.  APPARENTLY, THE JUDGE BASED
HIS CONCLUSION OF NONPRODUCIBILITY UNDER SEC. 3500(E)(1) ON THE LEGALLY
ERRONEOUS SUPPOSITION THAT ADOPTION OF AN ORAL PRESENTATION OF A
WRITTEN STATEMENT DID NOT CONSTITUTE A PERMISSIBLE MODE OF ADOPTING THE
WRITTEN STATEMENT. 

FN10  ONE JUDGE, CONCURRING IN THE COURT OF APPEALS, QUESTIONED THE
CORRECTNESS OF THE DISTRICT COURT'S FINDING THAT THE INTERVIEW REPORT
RECORDED STAULA'S STATEMENT "ALMOST IN IPSISSIMA VERBA."  303 F.2D, AT
751.  BUT HE DID NOT SUGGEST, NOR, WE THINK, COULD HE ON THIS RECORD,
THAT THERE WERE MATERIAL DIFFERENCES BETWEEN THE STATEMENT AND THE
REPORT.  IT IS NOT SUGGESTED, FOR EXAMPLE, THAT THE DESCRIPTIONS OF THE
ROBBERS IN THE REPORT OR THE STATEMENT IN THE REPORT THAT STAULA HAD
NOT OBSERVED A THIRD ROBBER - THE CRUCIAL PORTIONS OF THE REPORT FOR
IMPEACHMENT PURPOSES - DIFFERED IN THE SLIGHTEST RELEVANT PARTICULAR
FROM THE NOTES OR ORAL PRESENTATION.  THE ONLY VARIANCES, APPARENTLY,
ARE GRAMMATICAL AND SYNTACTICAL; CHANGES, REARRANGEMENT INTO
CHRONOLOGICAL ORDER, AND OMISSIONS AND ADDITIONS OF INFORMATION
IMMATERIAL FOR IMPEACHMENT PURPOSES. 

FN11  AS A COPY, WE CONSIDER THE REPORT ADMISSIBLE AS INDEPENDENT
EVIDENCE FOR IMPEACHMENT PURPOSES, AND NOT MERELY AS SECONDARY EVIDENCE
OF THE NOTES WHICH HAVE BEEN DESTROYED.  SEE GENERALLY UNITED STATES V.
ANNUNZIATO, SUPRA, AT 382; UNITED STATES V. THOMAS, SUPRA, AT 194-195. 

FN12  "EVERY EXPERIENCED TRIAL JUDGE AND TRIAL LAWYER KNOWS THE VALUE
FOR IMPEACHING PURPOSES OF STATEMENTS OF THE WITNESS RECORDING THE
EVENTS BEFORE TIME DULLS TREACHEROUS MEMORY.  FLAT CONTRADICTION
BETWEEN THE WITNESS' TESTIMONY AND THE VERSION OF THE EVENTS GIVEN IN
HIS REPORTS IS NOT THE ONLY TEST OF INCONSISTENCY.  THE OMISSION FROM
THE REPORTS OF FACTS RELATED AT THE TRIAL, OR A CONTRAST IN EMPHASIS
UPON THE SAME FACTS, EVEN A DIFFERENT ORDER OF TREATMENT, ARE ALSO
RELEVANT TO THE CROSS-EXAMINING PROCESS OF TESTING THE CREDIBILITY OF A
WITNESS' TRIAL TESTIMONY."  JENCKS V. UNITED STATES, 353 U.S. 657,
667.  THE JENCKS ACT, OF COURSE, "REAFFIRMS" OUR HOLDING IN JENCKS V.
UNITED STATES, SUPRA.  CAMPBELL I, AT 92. 

FN13  WE INTIMATE NO VIEW ON THE PROBATIVE WEIGHT TO BE ACCORDED THE
INTERVIEW REPORT AS IMPEACHING STAULA'S TRIAL TESTIMONY; THAT IS A
MATTER FOR THE TRIERS OF FACTS.  AND OF COURSE NOTHING WE SAY IS
INTENDED TO SUGGEST THAT A SHOWING OF INCONSISTENCY IS A PREREQUISITE
TO THE PRODUCTION OF DOCUMENTS UNDER THE JENCKS ACT.  JENCKS V. UNITED
STATES, SUPRA, AT 667-668; 18 U.S.C. SEC. 3500(B). 

FN14  UNDERSTANDABLY, NO CONTENTION HAS BEEN MADE THAT THE REFUSAL TO
PRODUCE THE INTERVIEW REPORT CAN BE DEEMED HARMLESS ERROR UNDER THE
PRINCIPLES LAID DOWN IN ROSENBERG V. UNITED STATES, 360 U.S. 367.  CF.
GORDON V. UNITED STATES, 344 U.S. 414. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

IN THIS CASE AN FBI AGENT, JOHN F. TOOMEY, JR., CONDUCTED A 30-MINUTE
INTERVIEW OF DOMINIC STAULA, A WITNESS TO THE BANK ROBBERY INVOLVED. 
THE SPECIAL AGENT ASKED STAULA SOME QUESTIONS AND WHILE THEY WERE BEING
ANSWERED JOTTED DOWN NOTES.  UPON COMPLETION OF THE INTERVIEW THE
SPECIAL AGENT ORALLY RECITED TO STAULA THE SUBSTANCE OF THE INTERVIEW,
REFRESHING HIS MEMORY FROM HIS NOTES AS HE DID SO.  HE THEN ASKED
STAULA IF THE RECITATION WAS CORRECT AND RECEIVED AN AFFIRMATIVE
REPLY.  THIS WAS AT NOON.  ABOUT NINE O'CLOCK THAT NIGHT THE SPECIAL
AGENT TRANSCRIBED THE REPORT ON A DICTATING MACHINE FOR SUBSEQUENT
TYPING, USING THE NOTES, AS WELL AS HIS MEMORY, FOR THE DICTATION. 
AFTER THE REPORT WAS TYPED BY A SECRETARY, WORKING ENTIRELY FROM THE
TRANSCRIPTION, HE CHECKED ITS ACCURACY AND THEN DESTROYED THE NOTES. 

THE COURT HOLDS THE "ORAL RECITATION" TO BE "A WRITTEN STATEMENT MADE
BY SAID WITNESS (STAULA) AND  ...  ADOPTED ...  BY HIM," WITHIN THE
PURVIEW OF 18 U.S.C. SEC. 3500(E)(1).  IT REACHES THIS RESULT VIA A
CONSTRUCTION REMINISCENT OF THE RUBE GOLDBERG CARTOONS, BASING ITS
HOLDING UPON THE FOLLOWING CONCLUSIONS:  (1) THE SPECIAL AGENT MAY BE
FAIRLY DEEMED TO HAVE READ HIS NOTES BACK TO STAULA, SINCE "IT IS NOT
SERIOUSLY SUGGESTED THAT THERE WAS A MATERIAL VARIANCE OR
INCONSISTENCY"; (2) STAULA APPROVED AND THEREBY ADOPTED THIS "READING"
OF THE NOTES; AND (3) THE SPECIAL AGENT REDUCED THE NOTES TO NARRATIVE
IN HIS INTERVIEW REPORT WHICH, AS THE TRIAL COURT FOUND, WAS "ALMOST IN
IPSISSIMA VERBA THE NARRATIVE" THE SPECIAL AGENT HAD RECITED TO
STAULA.  THE COURT THUS TRANSMUTES THE INTERVIEW REPORT INTO A WRITTEN
STATEMENT MADE BY STAULA AND ADOPTED BY HIM AND STRIKES DOWN THE
CONVICTION BECAUSE THE INTERVIEW REPORT WAS NOT PRODUCED AT THE TRIAL
UPON THE REQUEST OF THE DEFENSE. 

THIS CONCLUSION, HOWEVER, WILL NOT BEAR ANALYSIS.  EVEN THOUGH
STAULA'S APPROVAL OF THE ORAL RECITATION AS CORRECT BE DEEMED ARGUENDO
AN ADOPTION BY HIM, THE ORAL RECITATION, NEVERTHELESS, WAS NOT A
WRITTEN STATEMENT WITHIN THE MEANING OF THE JENCKS ACT, 18 U.S.C.  SEC.
3500.  THE INTERVIEW REPORT OF THE SPECIAL AGENT WAS WRITTEN BY THE
AGENT, NOT STAULA, AND WAS NEVER APPROVED BY STAULA IN ITS WRITTEN
FORM.  THE STATUTE APPLIES TO "A WRITTEN STATEMENT MADE BY SAID
WITNESS."  AT THE VERY LEAST THE "WRITTEN STATEMENT" REFERRED TO BY THE
ACT IS ONE WHICH IS, IF NOT WRITTEN BY THE WITNESS, ADOPTED BY HIM IN
ITS FINAL WRITTEN FORM.  THE NOTES TO WHICH THE AGENT REFERRED IN
PREPARING HIS REPORT DO NOT RISE TO THE DIGNITY OF A STATEMENT.  THEY
WERE, AS THE TRIAL COURT FOUND, "JOTTINGS" OF THE SPECIAL AGENT IN AID
OF HIS MEMORY FOR PURPOSES OF LATER DICTATING HIS FORMAL REPORT.  THESE
NOTES WERE NOT IN NARRATIVE FORM, THEY WERE NOT READ TO STAULA BY THE
SPECIAL AGENT, NOR DID STAULA READ THEM HIMSELF OR INITIAL OR SIGN
THEM.  THE SPECIAL AGENT MERELY RECOUNTED TO STAULA A NARRATIVE OF THE
EVENTS WHICH THE LATTER HAD DESCRIBED.  IT IS TRUE THAT IN SO DOING HE
REFERRED TO HIS NOTES FROM TIME TO TIME, BUT THE EVIDENCE IS CLEAR THAT
THE NOTES WERE NOT INCLUDED VERBATIM IN THIS RECITATION.  EVERY LAWYER
INDEED EVERY LAYMAN EXPERIENCED IN THE TAKING OF INTERVIEWS - KNOWS
FULL WELL THAT IT IS EXTREMELY UNLIKELY THAT ANY TWO NARRATIVES, EVEN
THOUGH PREPARED FROM IDENTICAL NOTES, WILL BE ALIKE.  LIKEWISE THE
COMMON EXPERIENCE OF ALL OF US BELIES THE CONCLUSION THAT THE INTERVIEW
REPORT WAS "ALMOST IN IPSISSIMA VERBA THE NARRATIVE" RECITED BY THE
SPECIAL AGENT TO STAULA.  BUT EVEN IF IT WERE, THE STATUTE DOES NOT
COVER A WRITTEN REPORT SUCH AS WE HAVE HERE, PREPARED FROM THE AGENT'S
MEMORY, AS WELL AS HIS NOTES, SOME NINE HOURS SUBSEQUENT TO THE
INTERVIEW AND NEITHER READ BY OR TO THE WITNESS NOR SHOWN TO HIM PRIOR
TO WHAT THE COURT TERMS HIS "ADOPTION" OF IT. 

THE COURT READS THE TRIAL COURT'S FINDINGS AS HOLDING THAT THE
SPECIAL AGENT, IN PRESENTING THE INFORMATION FOR STAULA'S COMMENTS
AFTER THE INTERVIEW, ADHERED TO THE PRECISE WORDS OF THE NOTES, SO FAR
AS PRACTICAL.  BUT THE TESTIMONY IS TO THE CONTRARY AND IS
UNEQUIVOCAL.*  IT THEN HOLDS THAT THIS FINDING IS NOT CLEARLY
ERRONEOUS.  BUT THE SIMPLE ANSWER TO THIS IS THAT THE FINDING HAS NO
SUPPORT IN THE RECORD.  IN ADDITION, THERE ARE THREE VITAL FLAWS IN THE
ADOPTION OF THIS INFERENCE - AND THAT IS ALL THAT IT IS - THAT THE ORAL
NARRATIVE TO STAULA WAS IDENTICAL TO THAT RELATED NINE HOURS LATER IN
THE INTERVIEW REPORT.  THE TRIAL JUDGE STATED WHAT WAS SAID TO BE
TOOMEY'S TESTIMONY THAT "ANYONE WHO HEARD STAULA AND HAD TOOMEY'S
JOTTINGS WOULD HAVE DICTATED THE SAME WORDS."  199 F. SUPP. 905, 907. 
BUT THIS OVERLOOKS (1) THE LIMITATION TOOMEY PUT ON THE WORD "ANYONE,"
I.E., ANYONE WHO HAD "THE SAME KNOWLEDGE OF THE CASE"; (2) THAT TOOMEY
DID NOT SAY THAT THE INTERVIEW REPORT WAS IN "THE SAME WORDS" AS THE
NARRATIVE TO STAULA BUT TWICE REPEATED IN HIS TESTIMONY THAT THE
LANGUAGE OF THE INTERVIEW REPORT WAS "SUBSTANTIALLY THE SAME THING" HE
HAD RELATED TO STAULA; AND (3) THE NOTES MADE BY TOOMEY HAD NOT BEEN
"JUST CHECKED WITH STAULA," IBID., FOR IT HAD BEEN NINE HOURS SINCE
TOOMEY HAD EVEN SEEN HIM.  HENCE THE FINDINGS OF THE COURT OF APPEALS
WERE ENTIRELY CORRECT AND THOSE OF THE TRIAL JUDGE CLEARLY ERRONEOUS. 
THIS IS MADE AS CLEAR AS CRYSTAL IN THE CONCURRING OPINION OF JUDGE
ALDRICH.  AS HE SAID, IT WOULD BE A "SURPRISING COINCIDENCE" THAT "THE
CHECKING BACK WITH A WITNESS AT NOONTIME OF A CONSOLIDATION OF JOTTINGS
AND MEMORY, AND THE DICTATION OF A REPORT IN THE EVENING WOULD RESULT
IN THE IDENTITY INFERRED BY THE COURT."  303 F.2D 747, 751.  EVEN THE
EXPERTISE OF AN EXPERIENCED SPECIAL AGENT OF THE FBI DOES NOT RESCUE
SUCH A CONCLUSION FROM BEYOND CREDULITY. 

*"Q.  DID YOU, MR. TOOMEY, WRITE DOWN WHAT MR. STAULA TOLD YOU AT THE
INTERVIEW? 

"A. I TOOK NOTES CONCERNING THE INFORMATION THAT HE FURNISHED TO
ME."  CROSS-EXAMINATION OF SPECIAL AGENT TOOMEY, TRANSCRIPT OF RECORD,
P. 4. 

     *         *         *         * * 

"Q.  MR. TOOMEY, DID YOU GIVE MR. STAULA THE PAPER THAT YOU MADE YOUR
NOTES ON TO READ OVER? 

"(FOL. 12) A. I DID NOT, SIR. 

"Q.  DID YOU READ IT BACK TO MR. STAULA? 

"A.  AS I PREVIOUSLY STATED, I TOOK NOTES AND I DID NOT READ THE
NOTES BACK TO HIM VERBATIM."  IBID. 

     *         *         *         *         * 

"THE COURT:  THE WITNESS SAID HE WENT OVER HIS NOTES. 

"DID YOU MEAN TO INFER THAT YOU READ YOUR NOTES OVER (FOL.  54) TO
MR. STAULA? 

"THE WITNESS:  NO, SIR, I DID NOT. 

"THE COURT:  YOU LOOKED AT THEM AND THEN YOU REPEATED WHAT HE SAID -
YOU DIDN'T READ THEM OVER TO HIM? 

"THE WITNESS:  NO. 

"THE COURT:  HE DIDN'T SEE THEM? 

"THE WITNESS:  NO, YOUR HONOR. 

"THE COURT:  THEY WERE IN YOUR POSSESSION SO HE COULD NOT HAVE DONE
THAT. 

"Q.  THERE WAS THE DESK IN THE FRONT OF WHERE BOTH OF YOU PEOPLE WERE
SITTING? 

"A.  YES. 

"Q.  YOUR NOTES CONTAINED THE WHOLE STORY SUPPLIED TO YOU BY MR.
STAULA? 

"A.  THAT IS CORRECT. 

"Q.  AND IT WAS VITAL, WASN'T IT, MR. TOOMEY, THAT WHAT WAS CONTAINED
IN YOUR NOTES BE MR. STAULA'S STORY? 

"A.  THAT IS CORRECT. 

"Q.  THE METHOD YOU EMPLOYED TO DOUBLE CHECK WAS TO READ YOUR NOTES,
OF WHAT MR. STAULA HAD TOLD YOU ALOUD AND GET MR. STAULA TO AGREE WITH
YOU THAT THAT WAS ACCURATE - THE INFORMATION THAT YOU HAD FOR FUTURE
USE, THAT IS SO ISN'T IT, MR. TOOMEY?    "(FOL. 55) A. NOT EXACTLY.  I
DID NOT READ THEM BACK TO THE WITNESS.  I WENT OVER THE STORY AGAIN,
REFRESHING MY MEMORY BY REFERRING TO MY NOTES. 

"Q.  THAT IS RIGHT - THAT IS WHAT YOUR MEMORY WAS - WHICH WAS ON THE
PAPERS THAT YOU HAD RECORDED - AND WHATEVER YOU SAID CAME FROM THOSE
PAPERS, THAT IS SO, ISN'T IT? 

"A.  NO, SIR, NOT EVERYTHING."  ID., AT 19-20. 

 *         *         *         *         * 

"Q.  NOW, OF COURSE, MR. TOOMEY, WITH ALL YOUR EXPERIENCE,
INVESTIGATING THIS BANK ROBBERY, IT IS SO, ISN'T IT, THAT THE MOST
VITAL PART OF THE ENTIRE INTERVIEW WAS THE QUESTION WHETHER OR NOT YOUR
NOTES MEANT TO MR. STAULA THE SAME THING AS THEY MEANT TO YOU; THAT IS
SO, ISN'T IT? 

"MR. KOEN:  I PRAY YOUR HONOR'S JUDGMENT. 

"THE COURT:  WELL, HE MAY ANSWER THAT QUESTION. 

"A.  NO. 

"Q.  NOW ISN'T IT SO, MR. TOOMEY, THAT ANOTHER VITAL PART OF YOUR
INTERVIEW WAS WHETHER OR NOT THE WELLSPRING OF ALL YOUR KNOWLEDGE
REGARDING DOMINIC STAULA WAS CORRECT? 

"A.  YES. 

"Q.  AS A MATTER OF FACT, AFTER YOU HAD READ BACK, IT IS SO, ISN'T
IT, SIR, THAT THE MOST VITAL PART OF YOUR ENTIRE EFFORT TAKING NOTES,
READING THEM BACK, WAS THE QUESTION (FOL 327) WHETHER OR NOT DOMINIC
STAULA AGREED WITH THEM? 

"A.  I DIDN'T READ THE NOTES BACK TO HIM, SIR."  REDIRECT EXAMINATION
OF SPECIAL AGENT TOOMEY, ID., AT 123. 

AS WE SAID IN PALERMO V. UNITED STATES, 360 U.S. 343, 350 (1959), THE
CONGRESS FELT THAT IT WOULD "BE GROSSLY UNFAIR TO ALLOW THE DEFENSE TO
USE STATEMENTS TO IMPEACH A WITNESS WHICH COULD NOT FAIRLY BE SAID TO
BE THE WITNESS' OWN RATHER THAN THE PRODUCT OF THE INVESTIGATOR'S
SELECTIONS, INTERPRETATIONS AND INTERPOLATIONS."  THIS IS EXACTLY WHAT
THE COURT IS DOING TODAY.  EXTENSION OF THE STATUTE TO INCLUDE SUCH
REPORTS CAN ONLY RESULT IN MISCHIEF, PERMITTING A SKILLFUL DEFENSE
LAWYER TO REPUDIATE AND DESTROY A WITNESS AND OBSTRUCT THE
ADMINISTRATION OF JUSTICE.  I THEREFORE DISSENT. 
..END :






















HAYNES V. WASHINGTON 373 U.S. 503 


NO. 147.  ARGUED FEBRUARY 26-27, 1963.  - DECIDED MAY 27, 1963.  - 58
WASH. 2D 716, 364 P.2D 935, JUDGMENT VACATED AND CAUSE REMANDED. 


IN A WASHINGTON STATE COURT, PETITIONER WAS TRIED ON A CHARGE OF
ROBBERY, CONVICTED AND SENTENCED TO IMPRISONMENT.  OVER HIS TIMELY
OBJECTION, THERE WAS ADMITTED IN EVIDENCE A WRITTEN CONFESSION OBTAINED
AFTER HE HAD BEEN HELD INCOMMUNICADO FOR 16 HOURS AND HAD BEEN TOLD
THAT HE COULD NOT CALL HIS WIFE UNTIL HE HAD SIGNED IT.  IN ACCORDANCE
WITH LOCAL PRACTICE, THE QUESTION AS TO THE VOLUNTARINESS OF THE
CONFESSION WAS LEFT FOR DETERMINATION BY THE JURY, AND IT BROUGHT IN A
GENERAL VERDICT OF GUILTY.  HELD:  ON THE RECORD IN THIS CASE, THE
CONFESSION WAS NOT VOLUNTARY, AND ITS ADMISSION IN EVIDENCE VIOLATED
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 504-520. 

(A)  A REVIEW OF THE ENTIRE RECORD REVEALS THAT PETITIONER'S ACCOUNT
OF THE CIRCUMSTANCES IN WHICH HIS WRITTEN CONFESSION WAS OBTAINED AND
SIGNED WAS UNCONTRADICTED IN ITS ESSENTIAL ELEMENTS.  PP. 507-513. 

(B)  THE UNCONTROVERTED PORTIONS OF THE RECORD DISCLOSE THAT
PETITIONER'S WRITTEN CONFESSION WAS OBTAINED IN, AND WAS THE RESULT OF,
AN ATMOSPHERE OF SUBSTANTIAL COERCION AND INDUCEMENT CREATED BY
STATEMENTS AND ACTIONS OF STATE AUTHORITIES, WHICH MADE ITS ADMISSION
IN EVIDENCE VIOLATIVE OF DUE PROCESS.  PP. 513-515. 

(C)  THIS COURT CANNOT BE PRECLUDED BY THE VERDICT OF A JURY FROM
DETERMINING WHETHER THE CIRCUMSTANCES UNDER WHICH A CONFESSION WAS
OBTAINED WERE SUCH THAT ITS ADMISSION IN EVIDENCE AMOUNTS TO A DENIAL
OF DUE PROCESS.  PP. 515-518. 

HAYNES V. WASHINGTON. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, RAYMOND L. HAYNES, WAS TRIED IN A SUPERIOR COURT OF
THE STATE OF WASHINGTON ON A CHARGE OF ROBBERY, FOUND GUILTY BY A JURY,
AND SENTENCED TO IMPRISONMENT "FOR A TERM OF NOT MORE THAN 20 YEARS." 
THE WASHINGTON SUPREME COURT AFFIRMED THE CONVICTION, WITH FOUR OF NINE
JUDGES DISSENTING.  58 WASH. 2D 716, 364 P.2D 935.  CERTIORARI WAS
GRANTED, 370 U.S. 902, TO CONSIDER WHETHER THE ADMISSION OF THE
PETITIONER'S WRITTEN AND SIGNED CONFESSION INTO EVIDENCE AGAINST HIM AT
TRIAL CONSTITUTED A DENIAL OF DUE PROCESS OF LAW. 

HAYNES CONTENDS THAT THE CONFESSION WAS INVOLUNTARY, AND THUS
CONSTITUTIONALLY INADMISSIBLE, BECAUSE INDUCED BY POLICE THREATS AND
PROMISES.  HE TESTIFIED AT TRIAL THAT DURING THE APPROXIMATELY 16-HOUR
PERIOD BETWEEN THE TIME OF HIS ARREST AND THE MAKING AND SIGNING OF THE
WRITTEN CONFESSION, HE SEVERAL TIMES ASKED POLICE TO ALLOW HIM TO CALL
AN ATTORNEY AND TO CALL HIS WIFE.  HE SAID THAT SUCH REQUESTS WERE
UNIFORMLY REFUSED AND THAT HE WAS REPEATEDLY TOLD THAT HE WOULD NOT BE
ALLOWED TO CALL UNLESS AND UNTIL HE "COOPERATED" WITH POLICE AND GAVE
THEM A WRITTEN AND SIGNED CONFESSION ADMITTING PARTICIPATION IN THE
ROBBERY.  HE WAS NOT PERMITTED TO PHONE HIS WIFE, OR FOR THAT MATTER
ANYONE, EITHER ON THE NIGHT OF THE ARREST OR THE NEXT DAY.  THE POLICE
PERSISTED IN THEIR REFUSALS TO ALLOW HIM CONTACT WITH THE OUTSIDE
WORLD, HE SAID, EVEN AFTER HE SIGNED ONE WRITTEN CONFESSION AND AFTER A
PRELIMINARY HEARING BEFORE A MAGISTRATE, LATE ON THE DAY FOLLOWING HIS
ARREST.  ACCORDING TO THE PETITIONER, HE WAS, IN FACT, HELD
INCOMMUNICADO BY THE POLICE UNTIL SOME FIVE OR SEVEN DAYS AFTER HIS
ARREST.  (FN1) 

THE STATE ASSERTS THAT THE PETITIONER'S VERSION OF EVENTS IS
CONTRADICTED, THAT THE CONFESSION WAS FREELY GIVEN, AND THAT, IN ANY
EVENT, THE QUESTION OF VOLUNTARINESS WAS CONCLUSIVELY RESOLVED AGAINST
THE PETITIONER BY THE VERDICT OF THE JURY AT TRIAL.  WE CONSIDER EACH
OF THESE CONTENTIONS IN TURN. 

I. 

THE PETITIONER WAS CHARGED WITH ROBBING A GASOLINE SERVICE STATION IN
THE CITY OF SPOKANE, WASHINGTON, AT ABOUT 9 P.M. ON THURSDAY, DECEMBER
19, 1957.  HE WAS ARRESTED BY SPOKANE POLICE IN THE VICINITY OF THE
STATION WITHIN APPROXIMATELY ONE-HALF HOUR AFTER THE CRIME.  (FN2)
THOUGH HE ORALLY ADMITTED THE ROBBERY TO OFFICERS WHILE EN ROUTE TO THE
POLICE STATION, HE WAS, ON ARRIVAL THERE, NOT CHARGED WITH THE CRIME,
BUT INSTEAD BOOKED FOR "INVESTIGATION," OR, AS IT IS LOCALLY CALLED,
PLACED ON THE "SMALL BOOK."  CONCEDEDLY, PRISONERS HELD ON THE "SMALL
BOOK" ARE PERMITTED BY POLICE NEITHER TO MAKE PHONE CALLS NOR TO HAVE
ANY VISITORS.  (FN3) 

SHORTLY AFTER ARRIVING AT THE STATION AT ABOUT 10 P.M., THE
PETITIONER WAS QUESTIONED FOR ABOUT ONE-HALF HOUR BY LIEUTENANT WAKELEY
OF THE SPOKANE POLICE, DURING WHICH PERIOD HE AGAIN ORALLY ADMITTED THE
CRIME.  HE WAS THEN PLACED IN A LINE-UP AND IDENTIFIED BY WITNESSES AS
ONE OF THE ROBBERS.  APPARENTLY, NOTHING ELSE WAS DONE THAT NIGHT. 

ON THE FOLLOWING MORNING, BEGINNING AT APPROXIMATELY 9:30 A.M., THE
PETITIONER WAS AGAIN QUESTIONED FOR ABOUT AN HOUR AND A HALF, THIS TIME
BY DETECTIVES PECK AND COCKBURN.  HE ONCE MORE ORALLY ADMITTED THE
ROBBERY, AND A WRITTEN CONFESSION WAS TRANSCRIBED.  SHORTLY THEREAFTER,
HE WAS TAKEN TO THE OFFICE OF THE DEPUTY PROSECUTOR, WHERE STILL
ANOTHER STATEMENT WAS TAKEN AND TRANSCRIBED.  THOUGH HAYNES REFUSED TO
SIGN THIS SECOND CONFESSION, HE DID SIGN THE EARLIER STATEMENT GIVEN TO
DETECTIVES PECK AND COCKBURN.  (FN4)  LATER THAT SAME AFTERNOON HE WAS
TAKEN BEFORE A MAGISTRATE FOR A PRELIMINARY HEARING; THIS WAS AT ABOUT
4 P.M. ON DECEMBER 20, THE DAY AFTER HIS ARREST. 

AT THE CONCLUSION OF THE HEARING, HAYNES WAS TRANSFERRED TO THE
COUNTY JAIL AND ON EITHER THE FOLLOWING TUESDAY OR THURSDAY WAS
RETURNED TO THE DEPUTY PROSECUTOR'S OFFICE.  HE WAS AGAIN ASKED TO SIGN
THE SECOND STATEMENT WHICH HE HAD GIVEN THERE SOME FOUR TO SIX DAYS
EARLIER, BUT AGAIN REFUSED TO DO SO. 

THE WRITTEN CONFESSION TAKEN FROM HAYNES BY DETECTIVES PECK AND
COCKBURN ON THE MORNING AFTER HIS ARREST AND SIGNED BY HAYNES ON THE
SAME DAY IN THE DEPUTY PROSECUTOR'S OFFICE WAS INTRODUCED INTO EVIDENCE
AGAINST THE PETITIONER OVER PROPER AND TIMELY OBJECTION BY HIS COUNSEL
THAT SUCH USE WOULD VIOLATE DUE PROCESS OF LAW.  UNDER THE WASHINGTON
PROCEDURE THEN IN EFFECT, (FN5) VOLUNTARINESS OF THE CONFESSION WAS
TREATED AS A QUESTION OF FACT FOR ULTIMATE DETERMINATION BY THE JURY. 
IN OVERRULING THE PETITIONER'S OBJECTION TO USE OF THE CONFESSION, THE
TRIAL JUDGE, HOWEVER, MADE AN APPARENTLY PRELIMINARY DETERMINATION THAT
IT WAS VOLUNTARY AND "CONDITIONALLY" ADMISSIBLE.  SEE 58 WASH. 2D, AT
719-720, 364 P.2D, AT 937.  THE EVIDENCE GOING TO VOLUNTARINESS WAS
HEARD BEFORE THE JURY AND THE ISSUE SUBMITTED TO IT.  THE JURY RETURNED
A GENERAL VERDICT OF GUILTY AND WAS NOT REQUIRED TO, AND DID NOT,
INDICATE ITS VIEW WITH RESPECT TO THE VOLUNTARINESS OF THE CONFESSION. 

                                       II. 

THE STATE FIRST CONTENDS THAT THE PETITIONER'S VERSION OF THE
CIRCUMSTANCES SURROUNDING THE MAKING AND SIGNING OF HIS WRITTEN
CONFESSION IS EVIDENTIALLY CONTRADICTED AND THUS SHOULD BE REJECTED BY
THIS COURT.  WE HAVE CAREFULLY REVIEWED THE ENTIRE RECORD, HOWEVER, AND
FIND THAT HAYNES' ACCOUNT IS UNCONTRADICTED IN ITS ESSENTIAL ELEMENTS. 

HAYNES TESTIFIED THAT ON THE EVENING OF HIS ARREST HE MADE SEVERAL
SPECIFIC REQUESTS OF THE POLICE THAT HE BE PERMITTED TO CALL AN
ATTORNEY AND TO CALL HIS WIFE.  EACH SUCH REQUEST, HE SAID, WAS
REFUSED.  HE STATED, HOWEVER, THAT HE WAS TOLD HE MIGHT MAKE A CALL IF
HE CONFESSED: 

"THEY KEPT WANTING ME TO OWN UP TO ROBBING A RICHFIELD SERVICE
STATION AND I ASKED MR. (DETECTIVE) PIKE SEVERAL TIMES IF I COULD CALL
A LAWYER AND HE SAID IF I COOPERATED AND GAVE HIM A STATEMENT  ...
THAT I WOULD BE ALLOWED TO CALL, TO MAKE A PHONE CALL  ...  ." 

ON CROSS-EXAMINATION, LIEUTENANT WAKELEY, THE OFFICER WHO
INTERROGATED THE PETITIONER ON THE NIGHT OF HIS ARREST, FIRST SAID THAT
HAYNES DID NOT ASK HIM FOR PERMISSION TO CALL HIS WIFE, BUT MERELY
INQUIRED WHETHER HIS WIFE WOULD BE NOTIFIED OF HIS ARREST.  LIEUTENANT
WAKELEY SAID THAT HE TOLD THE PETITIONER THAT HIS WIFE WOULD BE
NOTIFIED.  (FN6)  DEFENSE COUNSEL, HOWEVER, PURSUED THE POINT AND, ONLY
A MOMENT LATER, WAKELEY TESTIFIED THAT HAYNES "MAY HAVE" ASKED
PERMISSION TO CALL HIS WIFE HIMSELF; WAKELEY SAID HE DIDN'T "REMEMBER
EXACTLY WHETHER HE ASKED OR WHETHER WE WOULDN'T NOTIFY HIS WIFE." 
WAKELEY THEN TESTIFIED THAT HE SIMPLY DIDN'T "REMEMBER" WHETHER HAYNES
ASKED TO CALL HIS WIFE SO THAT SHE MIGHT SECURE A LAWYER FOR HIM; IN
ADDITION, THE LIEUTENANT ADMITTED THAT THE PETITIONER MIGHT HAVE ASKED
TO CALL HIS WIFE AFTER THE INTERROGATION WAS COMPLETED.  DETECTIVE
PIKE, ALSO TESTIFYING AT TRIAL, SAID SIMPLY THAT HE HAD NOT TALKED TO
HAYNES ON THE EVENING OF THE ARREST. 

IF THIS WERE THE ONLY EVIDENCE OF POLICE COERCION AND INDUCEMENT IN
THE RECORD, WE WOULD FACE THE PROBLEM OF DETERMINING WHETHER, IN VIEW
OF THE TESTIMONY OF LIEUTENANT WAKELEY AND DETECTIVE PIKE, THE
PETITIONER'S OWN TESTIMONY WOULD BE SUFFICIENT, ON REVIEW BY THIS
COURT, TO ESTABLISH THE EXISTENCE OF IMPERMISSIBLE POLICE CONDUCT
BARRING USE OF THE WRITTEN CONFESSION ULTIMATELY OBTAINED.   WE NEED
NOT PURSUE SUCH AN INQUIRY, HOWEVER, SINCE THE RECORD CONTAINS OTHER
PROBATIVE, CONVINCING, AND UNCONTRADICTED EVIDENCE. 

THE WRITTEN CONFESSION INTRODUCED AT TRIAL WAS DICTATED AND
TRANSCRIBED WHILE HAYNES WAS BEING QUESTIONED BY DETECTIVES PECK AND
COCKBURN ON THE MORNING OF DECEMBER 20, THE DAY AFTER THE ROBBERY. 
HAYNES TESTIFIED: 

"Q.  ...  STATE WHETHER OR NOT THE OFFICERS AT THAT TIME ASKED YOU TO
GIVE THEM A STATEMENT.  A. YES. 

"Q.  AND WHAT WAS YOUR ANSWER TO THAT?  A. I WANTED TO CALL MY WIFE. 

"Q.  AND WERE YOU ALLOWED TO CALL YOUR WIFE?  A. NO. 

"Q.  ...  THIS WAS ON FRIDAY?  A. FRIDAY. 

"Q.  DECEMBER 20TH?  A. YES. 

"Q.  AND WAS ANYTHING ELSE SAID WITH RESPECT TO MAKING A TELEPHONE
CALL?  A. MR. PIKE AND THE OTHER OFFICER BOTH TOLD ME THAT WHEN I HAD
MADE A STATEMENT AND COOPERATED WITH THEM THAT THEY WOULD SEE TO IT
THAT AS SOON AS I GOT BOOKED I COULD CALL MY WIFE. 

"Q.  WELL, THAT WAS THE NIGHT BEFORE YOU WERE TOLD THAT, WASN'T IT?
A. I WAS TOLD THAT THE NEXT DAY TOO, SEVERAL TIMES. 

"Q.  WHO WERE THE OFFICERS THAT WERE WITH YOU?  A. OH, NOT MR. PIKE. 
MR. COCKBURN AND MR. PECK, I BELIEVE. 

"Q.  IN ANY EVENT, MR. HAYNES, DID YOU SOON AFTER THAT GIVE THEM A
STATEMENT?  A. WELL, NOT READILY. 

"Q.  DID YOU GIVE THEM A STATEMENT?  A. YES." 

THE TRANSCRIBED STATEMENT ITSELF DISCLOSES THAT EARLY IN THE
INTERROGATION HAYNES ASKED WHETHER HE MIGHT AT LEAST TALK TO THE
PROSECUTOR BEFORE PROCEEDING FURTHER.  HE WAS TOLD:  "WE JUST WANT TO
GET THIS DOWN FOR OUR RECORDS, AND THEN WE WILL GO TO THE PROSECUTOR'S
OFFICE AND HE WILL ASK THE SAME QUESTIONS THAT I AM." 

WHATEVER CONTRADICTION OF HAYNES' ACCOUNT OF HIS INTERROGATION ON THE
NIGHT OF HIS ARREST MIGHT BE FOUND IN THE TESTIMONY OF LIEUTENANT
WAKELEY AND DETECTIVE PIKE, HIS EXPLICIT DESCRIPTION OF THE
CIRCUMSTANCES SURROUNDING HIS QUESTIONING AND THE TAKING BY DETECTIVES
PECK AND COCKBURN OF THE CHALLENGED CONFESSION ON THE FOLLOWING DAY
REMAINS TESTIMONIALLY UNDISPUTED.  THOUGH HE TOOK THE STAND AT TRIAL,
DETECTIVE COCKBURN DID NOT DENY THAT HE OR DETECTIVE PECK HAD TOLD THE
PETITIONER THAT HE MIGHT CALL HIS WIFE ONLY IF HE "COOPERATED" AND GAVE
THE POLICE A STATEMENT.  COCKBURN SAID MERELY THAT HE COULD NOT
"REMEMBER" WHETHER HAYNES HAD ASKED TO CALL HIS WIFE.  HE CONCEDED THAT
THE PETITIONER "COULD HAVE" MADE SUCH A REQUEST.  NO LEGAL ALCHEMY CAN
TRANSMUTE SUCH WHOLLY EQUIVOCAL TESTIMONY INTO A DENIAL OR REFUTATION
OF THE PETITIONER'S SPECIFIC RECITATION OF EVENTS.  DETECTIVE PECK DID
NOT TESTIFY AND NO OTHER EVIDENCE WAS PRESENTED TO CONTRADICT THE
PETITIONER'S TESTIMONY, EITHER AS PART OF THE PROSECUTION'S CASE IN
CHIEF OR, EVEN MORE IMPORTANTLY, BY WAY OF REBUTTAL SUBSEQUENT TO THE
PETITIONER'S TESTIMONY.  WE CANNOT BUT ATTRIBUTE SIGNIFICANCE TO THE
FAILURE OF THE STATE, AFTER LISTENING TO THE PETITIONER'S DIRECT AND
EXPLICIT TESTIMONY, TO ATTEMPT TO CONTRADICT THAT CRUCIAL EVIDENCE;
THIS TESTIMONIAL VOID IS THE MORE MEANINGFUL IN LIGHT OF THE
AVAILABILITY AND WILLING COOPERATION OF THE POLICEMEN WHO, IF HONESTLY
ABLE TO DO SO, COULD HAVE READILY DENIED THE DEFENDANT'S CLAIMS. 
SIMILARLY, NO EVIDENCE WAS OFFERED TO CONTRADICT IN ANY WAY THE
PETITIONER'S TESTIMONY THAT WHEN FIRST TAKEN TO THE DEPUTY PROSECUTOR'S
OFFICE TO SIGN THE STATEMENT HE HAD GIVEN TO DETECTIVES PECK AND
COCKBURN HE AGAIN REQUESTED PERMISSION TO CALL HIS WIFE AND WAS AGAIN
REFUSED.  (FN7) 

THOUGH THE POLICE WERE IN POSSESSION OF EVIDENCE MORE THAN ADEQUATE
TO JUSTIFY HIS BEING CHARGED WITHOUT DELAY, IT IS UNCONTROVERTED THAT
HAYNES WAS NOT TAKEN BEFORE A MAGISTRATE AND GRANTED A PRELIMINARY
HEARING UNTIL HE HAD ACCEDED TO DEMANDS THAT HE GIVE AND SIGN THE
WRITTEN STATEMENT.  NOR IS THERE ANY INDICATION IN THE RECORD THAT
PRIOR TO SIGNING THE WRITTEN CONFESSION, OR EVEN THEREAFTER, HAYNES WAS
ADVISED BY AUTHORITIES OF HIS RIGHT TO REMAIN SILENT, WARNED THAT HIS
ANSWERS MIGHT BE USED AGAINST HIM, OR TOLD OF HIS RIGHTS RESPECTING
CONSULTATION WITH AN ATTORNEY. 

IN ADDITION, THERE IS NO CONTRADICTION OF HAYNES' TESTIMONY THAT EVEN
AFTER HE SUBMITTED AND SUPPLIED THE WRITTEN CONFESSION USED AT TRIAL,
THE POLICE NONETHELESS CONTINUED THE INCOMMUNICADO DETENTION WHILE
PERSISTING IN EFFORTS TO SECURE STILL ANOTHER SIGNATURE ON ANOTHER
STATEMENT.  (FN8)  UPON BEING RETURNED TO THE DEPUTY PROSECUTOR'S
OFFICE DURING THE WEEK FOLLOWING HIS ARREST AND WHILE STILL BEING HELD
INCOMMUNICADO, THE PETITIONER WAS AGAIN ASKED TO SIGN THE SECOND
STATEMENT WHICH HE HAD GIVEN THERE SEVERAL DAYS EARLIER.  HE REFUSED TO
DO SO, HE SAID, BECAUSE, AS HE THEN TOLD THE DEPUTY PROSECUTOR, "ALL
THE PROMISES OF ALL THE OFFICERS I HAD TALKED TO HAD NOT BEEN FULFILLED
AND I HAD NOT BEEN ABLE TO CALL MY WIFE AND I WOULD SIGN NOTHING UNDER
ANY CONDITIONS UNTIL I WAS ALLOWED TO CALL MY WIFE TO SEE ABOUT LEGAL
COUNSEL."  THE STATE OFFERED NO EVIDENCE TO REBUT THIS TESTIMONY. 
(FN9)  SIMILARLY UNCONTRADICTED IS HAYNES' TESTIMONY THAT IT WAS NOT
UNTIL DURING OR AFTER THIS SECOND INTERVIEW WITH THE PROSECUTOR ON THE
TUESDAY OR THURSDAY - HAYNES COULD NOT BE QUITE CERTAIN - BUT, IN ANY
EVENT, SOME FIVE OR SEVEN DAYS AFTER HIS ARREST, THAT HE WAS FIRST
ALLOWED TO CALL HIS WIFE. 

THE CONTESTED WRITTEN CONFESSION ITSELF CONTAINS THE FOLLOWING
EXCHANGE: 

"Q.  HAVE WE MADE YOU ANY THREATS OR PROMISES?  A. NO. 

"Q.  HAVE ANY POLICE OFFICERS MADE YOU ANY PROMISES OR THREATS?  A.
NO - EXCEPT THAT THE LIEUTENANT PROMISED ME THAT AS SOON AS I WAS
BOOKED THAT I COULD CALL MY WIFE. 

"Q.  YOU ARE BEING HELD FOR INVESTIGATION - YOU HAVEN'T BEEN BOOKED
YET.  WHEN YOU ARE, YOU WILL BE ABLE TO PHONE YOUR WIFE."    THE STATE
ARGUES THAT THE QUOTED ANSWERS TO THE FIRST TWO OF THESE QUESTIONS
CONCLUSIVELY NEGATIVE EXISTENCE OF COERCION OR INDUCEMENT ON THE PART
OF THE POLICE.  THE STATEMENT BEARS NO SUCH READING, HOWEVER.  THE
QUESTIONS ON THEIR FACE DISCLOSE THAT THE PETITIONER WAS TOLD THAT
"BOOKING" WAS A PREREQUISITE TO CALLING HIS WIFE, AND "BOOKING" MUST
MEAN BOOKING ON A CHARGE OF ROBBERY.  SINCE THE POLICE ALREADY HAD
ENOUGH EVIDENCE TO WARRANT CHARGING THE PETITIONER WITH THE ROBBERY -
THEY HAD THE PETITIONER'S PRIOR ORAL ADMISSIONS, THE CIRCUMSTANCES
SURROUNDING HIS ARREST, AND HIS IDENTIFICATION BY WITNESSES - THE ONLY
FAIR INFERENCE TO BE DRAWN UNDER ALL THE CIRCUMSTANCES IS THAT HE WOULD
NOT BE BOOKED ON THE ROBBERY CHARGE UNTIL THE POLICE HAD SECURED THE
ADDITIONAL EVIDENCE THEY DESIRED, THE SIGNED STATEMENT FOR WHICH THEY
WERE PRESSING.  THE QUOTED PORTIONS OF THE SIGNED CONFESSION THUS
SUPPORT THE PETITIONER'S VERSION OF EVENTS; UNDER ANY VIEW, THEY OFFER
NO VIABLE OR RELIABLE CONTRADICTION. 

EVEN WHERE IT OTHERWISE, THERE WOULD BE SUBSTANTIAL DOUBT AS TO THE
PROBATIVE EFFECT TO BE ACCORDED RECITATIONS IN THE CHALLENGED
CONFESSION THAT IT WAS NOT INVOLUNTARILY INDUCED.  CF. HALEY V. OHIO,
332 U.S. 596, 601 (OPINION OF MR. JUSTICE DOUGLAS).  IT WOULD BE
ANOMALOUS, INDEED, IF SUCH A STATEMENT, CONTAINED WITHIN THE VERY
DOCUMENT ASSERTED TO HAVE BEEN OBTAINED BY USE OF IMPERMISSIBLE
COERCIVE PRESSURES, WAS ITSELF ENOUGH TO CREATE AN EVIDENTIARY CONFLICT
PRECLUDING THIS COURT'S EFFECTIVE REVIEW OF THE CONSTITUTIONAL ISSUE. 
COMMON SENSE DICTATES THE CONCLUSION THAT IF THE AUTHORITIES WERE
SUCCESSFUL IN COMPELLING THE TOTALLY INCRIMINATING CONFESSION OF GUILT,
THE VERY ISSUE FOR DETERMINATION, THEY WOULD HAVE LITTLE, IF ANY,
TROUBLE SECURING THE SELF-CONTAINED CONCESSION OF VOLUNTARINESS. 
CERTAINLY, WE CANNOT ACCORD ANY CONCLUSIVE IMPORT TO SUCH AN ADMISSION,
PARTICULARLY WHEN, AS HERE, IT IS IMMEDIATELY FOLLOWED BY RECITATIONS
SUPPORTING THE PETITIONER'S VERSION OF EVENTS. 

                                      III. 

THE UNCONTROVERTED PORTIONS OF THE RECORD THUS DISCLOSE THAT THE
PETITIONER'S WRITTEN CONFESSION WAS OBTAINED IN AN ATMOSPHERE OF
SUBSTANTIAL COERCION AND INDUCEMENT CREATED BY STATEMENTS AND ACTIONS
OF STATE AUTHORITIES.  WE HAVE ONLY RECENTLY HELD AGAIN THAT A
CONFESSION OBTAINED BY POLICE THROUGH THE USE OF THREATS IS VIOLATIVE
OF DUE PROCESS AND THAT "THE QUESTION IN EACH CASE IS WHETHER THE
DEFENDANT'S WILL WAS OVERBORNE AT THE TIME HE CONFESSED," LYNUMN V.
ILLINOIS, 372 U.S. 528, 534.  "IN SHORT, THE TRUE TEST OF ADMISSIBILITY
IS THAT THE CONFESSION IS MADE FREELY, VOLUNTARILY AND WITHOUT
COMPULSION OR INDUCEMENT OF ANY SORT."  WILSON V. UNITED STATES, 162
U.S. 613, 623.  SEE ALSO BRAM V. UNITED STATES, 168 U.S. 532.  AND, OF
COURSE, WHETHER THE CONFESSION WAS OBTAINED BY COERCION OR IMPROPER
IMDUCEMENT CAN BE DETERMINED ONLY BY AN EXAMINATION OF ALL THE
ATTENDANT CIRCUMSTANCES.  SEE, E.G., LEYRA V. DENNO, 347 U.S. 556,
558.  (FN10)  HAYNES' UNDISPUTED TESTIMONY AS TO THE MAKING AND SIGNING
OF THE CHALLENGED CONFESSION USED AGAINST HIM AT TRIAL PERMITS NO DOUBT
THAT IT WAS OBTAINED UNDER A TOTALITY OF CIRCUMSTANCES EVIDENCING AN
INVOLUNTARY WRITTEN ADMISSION OF GUILT. 

HERE, AS IN LYNUMN, SUPRA, THE PETITIONER WAS ALONE IN THE HANDS OF
THE POLICE, WITH NO ONE TO ADVISE OR AID HIM, AND HE HAD "NO REASON NOT
TO BELIEVE THAT THE POLICE HAD AMPLE POWER TO CARRY OUT THEIR THREATS,"
372 U.S., AT 534, TO CONTINUE, FOR A MUCH LONGER PERIOD IF NEED BE, THE
INCOMMUNICADO DETENTION - AS IN FACT WAS ACTUALLY DONE.  NEITHER THE
PETITIONER'S PRIOR CONTACTS WITH THE AUTHORITIES NOR THE FACT THAT HE
PREVIOUSLY HAD MADE INCRIMINATING ORAL ADMISSIONS NEGATIVES THE
EXISTENCE AND EFFECTIVENESS OF THE COERCIVE TACTICS USED IN SECURING
THE WRITTEN CONFESSION INTRODUCED AT TRIAL.  THE PETITIONER AT FIRST
RESISTED MAKING A WRITTEN STATEMENT AND GAVE IN ONLY AFTER CONSISTENT
DENIALS OF HIS REQUESTS TO CALL HIS WIFE, AND THE CONDITIONING OF SUCH
OUTSIDE CONTACT UPON HIS ACCESSION TO POLICE DEMANDS.  CONFRONTED WITH
THE EXPRESS THREAT OF CONTINUED INCOMMUNICADO DETENTION AND INDUCED BY
THE PROMISE OF COMMUNICATION WITH AND ACCESS TO FAMILY, HAYNES
UNDERSTANDABLY CHOSE TO MAKE AND SIGN THE DAMNING WRITTEN STATEMENT;
GIVEN THE UNFAIR AND INHERENTLY COERCIVE CONTEXT IN WHICH MADE, THAT
CHOICE CANNOT BE SAID TO BE THE VOLUNTARY PRODUCT OF A FREE AND
UNCONSTRAINED WILL, AS REQUIRED BY THE FOURTEENTH AMENDMENT. 

WE CANNOT BLIND OURSELVES TO WHAT EXPERIENCE UNMISTAKABLY TEACHES:
THAT EVEN APART FROM THE EXPRESS THREAT, THE BASIC TECHNIQUES PRESENT
HERE - THE SECRET AND INCOMMUNICADO DETENTION AND INTERROGATION - ARE
DEVICES ADAPTED AND USED TO EXTORT CONFESSIONS FROM SUSPECTS.  OF
COURSE, DETECTION AND SOLUTION OF CRIME IS, AT BEST, A DIFFICULT AND
ARDUOUS TASK REQUIRING DETERMINATION AND PERSISTENCE ON THE PART OF ALL
RESPONSIBLE OFFICERS CHARGED WITH THE DUTY OF LAW ENFORCEMENT.  AND,
CERTAINLY, WE DO NOT MEAN TO SUGGEST THAT ALL INTERROGATION OF
WITNESSES AND SUSPECTS IS IMPERMISSIBLE.  SUCH QUESTIONING IS
UNDOUBTEDLY AN ESSENTIAL TOOL IN EFFECTIVE LAW ENFORCEMENT.  THE LINE
BETWEEN PROPER AND PERMISSIBLE POLICE CONDUCT AND TECHNIQUES AND
METHODS OFFENSIVE TO DUE PROCESS IS, AT BEST, A DIFFICULT ONE TO DRAW,
PARTICULARLY IN CASES SUCH AS THIS WHERE IT IS NECESSARY TO MAKE FINE
JUDGMENTS AS TO THE EFFECTS OF PSYCHOLOGICALLY COERCIVE PRESSURES AND
INDUCEMENTS ON THE MIND AND WILL OF AN ACCUSED.  BUT WE CANNOT ESCAPE
THE DEMANDS OF JUDGING OR OF MAKING THE DIFFICULT APPRAISALS INHERENT
IN DETERMINING WHETHER CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED.  WE
ARE HERE IMPELLED TO THE CONCLUSION, FROM ALL OF THE FACTS PRESENTED,
THAT THE BOUNDS OF DUE PROCESS HAVE BEEN EXCEEDED. 

                                IV. 

OUR CONCLUSION IS IN NO WAY FORECLOSED, AS THE STATE CONTENDS, BY THE
FACT THAT THE STATE TRIAL JUDGE OR THE JURY MAY HAVE REACHED A
DIFFERENT RESULT ON THIS ISSUE. 

IT IS WELL SETTLED THAT THE DUTY OF CONSTITUTIONAL ADJUDICATION
RESTING UPON THIS COURT REQUIRES THAT THE QUESTION WHETHER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT HAS BEEN VIOLATED BY
ADMISSION INTO EVIDENCE OF A COERCED CONFESSION BE THE SUBJECT OF AN
INDEPENDENT DETERMINATION HERE, SEE, E.G., ASHCRAFT V. TENNESSEE, 322
U.S. 143, 147-148; "WE CANNOT ESCAPE THE RESPONSIBILITY OF MAKING OUR
OWN EXAMINATION OF THE RECORD," SPANO V. NEW YORK, 360 U.S. 315, 316. 
WHILE, FOR PURPOSES OF REVIEW IN THIS COURT, THE DETERMINATION OF THE
TRIAL JUDGE OR OF THE JURY WILL ORDINARILY BE TAKEN TO RESOLVE
EVIDENTIARY CONFLICTS AND MAY BE ENTITLED TO SOME WEIGHT EVEN WITH
RESPECT TO THE ULTIMATE CONCLUSION ON THE CRUCIAL ISSUE OF
VOLUNTARINESS, WE CANNOT AVOID OUR RESPONSIBILITIES BY PERMITTING
OURSELVES 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."  STEIN V. NEW YORK,
346 U.S. 156, 181.  AS STATE COURTS ARE, IN INSTANCES SUCH AS THIS,
CHARGED WITH THE PRIMARY RESPONSIBILITY OF PROTECTING BASIC AND
ESSENTIAL RIGHTS, WE ACCORD AN APPROPRIATE AND SUBSTANTIAL EFFECT TO
THEIR RESOLUTIONS OF CONFLICTS IN EVIDENCE AS TO THE OCCURRENCE OR
NONOCCURRENCE OF FACTUAL EVENTS AND HAPPENINGS.  THIS IS PARTICULARLY
APPOSITE BECAUSE THE TRIAL JUDGE AND JURY ARE CLOSEST TO THE TRIAL
SCENE AND THUS AFFORDED THE BEST OPPORTUNITY TO EVALUATE CONTRADICTORY
TESTIMONY.  BUT, AS DECLARED IN WARD V. TEXAS, 316 U.S. 547, 550,
"WHEN, AS IN THIS CASE, THE QUESTION IS PROPERLY RAISED AS TO WHETHER A
DEFENDANT HAS BEEN DENIED THE DUE PROCESS OF LAW  ...  WE CANNOT BE
PRECLUDED BY THE VERDICT OF A JURY FROM DETERMINING WHETHER THE
CIRCUMSTANCES UNDER WHICH THE CONFESSION WAS MADE WERE SUCH THAT ITS
ADMISSION IN EVIDENCE AMOUNTS TO A DENIAL OF DUE PROCESS."  TO THE SAME
EFFECT, SEE, E.G., SPANO V. NEW YORK, 360 U.S. 315; THOMAS V. ARIZONA,
356 U.S. 390, 393; PAYNE V. ARKANSAS, 356 U.S. 560, 562, 568; ASHCRAFT
V. TENNESSEE, 322 U.S. 143, 147-148; LISENBA V. CALIFORNIA, 314 U.S.
219, 237-238; CHAMBERS V. FLORIDA, 309 U.S. 227, 228. 

BEYOND EVEN THE COMPELLING NATURE OF OUR PRECEDENTS, HOWEVER, THERE
IS HERE STILL ANOTHER REASON FOR REFUSING TO CONSIDER THE PRESENT
INQUIRY FORECLOSED BY THE VERDICT OF THE JURY TO WHICH THE ISSUE OF
VOLUNTARINESS OF THE CONFESSION WAS SUBMITTED.  THE JURY WAS
INSTRUCTED, IN EFFECT, NOT TO CONSIDER AS RELEVANT ON THE ISSUE OF
VOLUNTARINESS OF THE CONFESSION THE FACT THAT A DEFENDANT IS NOT
REMINDED THAT HE IS UNDER ARREST, THAT HE IS NOT CAUTIONED THAT HE MAY
REMAIN SILENT, THAT HE IS NOT WARNED THAT HIS ANSWERS MAY BE USED
AGAINST HIM, OR THAT HE IS NOT ADVISED THAT HE IS ENTITLED TO COUNSEL. 
(FN11)  WHATEVER INDEPENDENT CONSEQUENCE THESE FACTORS MAY OTHERWISE
HAVE, THEY ARE UNQUESTIONABLY ATTENDANT CIRCUMSTANCES WHICH THE ACCUSED
IS ENTITLED TO HAVE APPROPRIATELY CONSIDERED IN DETERMINING
VOLUNTARINESS AND ADMISSIBILITY OF HIS CONFESSION.  (FN12) 

IN ADDITION, THE TRIAL COURT INSTRUCTED IN TERMS OF A WASHINGTON
STATUTE WHICH PERMITS CONSIDERATION OF A CORROBORATED CONFESSION "MADE
UNDER INDUCEMENT" AND EXCEPTS ONLY CONFESSIONS "MADE UNDER THE
INFLUENCE OF FEAR PRODUCED BY THREATS."  (FN13)  IT SEEMS REASONABLY
CLEAR FROM THIS PORTION OF THE INSTRUCTIONS THAT THE JURY MAY WELL HAVE
BEEN MISLED AS TO THE REQUISITE CONSTITUTIONAL STANDARD,
NOTWITHSTANDING THE APPARENT PROPRIETY OF OTHER PORTIONS OF THE
INSTRUCTIONS.  GIVEN THE FACT THAT THE JURY DID NO MORE THAN RETURN A
GENERAL VERDICT OF GUILTY, WE OBVIOUSLY HAVE NO WAY OF KNOWING WHETHER
IT FOUND THE CONFESSION TO BE VOLUNTARY AND ADMISSIBLE OR NOT.  BECAUSE
THERE WAS SUFFICIENT OTHER EVIDENCE TO SUSTAIN THE VERDICT, THE JURY
MAY HAVE FOUND THE DEFENDANT GUILTY EVEN THOUGH IT REJECTED THE
CONFESSION AS INVOLUNTARY; ALTERNATIVELY, THE JURY MAY HAVE BASED ITS
FINDING OF GUILT ON THE CONFESSION, REASONING, UNDER THE QUESTIONABLE
INSTRUCTIONS AND THE WASHINGTON STATUTE, THAT THE CONFESSION WAS
ADMISSIBLE AS VOLUNTARY, EVEN THOUGH IMPROPERLY INDUCED, BECAUSE IT WAS
CORROBORATED BY THE OTHER EVIDENCE.  ALTHOUGH, FOR THE REASONS
INDICATED, THE WASHINGTON STATUTE AND THE QUOTED INSTRUCTIONS RAISE A
SERIOUS AND SUBSTANTIAL QUESTION WHETHER A PROPER CONSTITUTIONAL
STANDARD WAS APPLIED BY THE JURY, WE NNED NOT RELY ON THE IMPERFECTIONS
IN THE INSTRUCTIONS AS A SEPARATE GROUND OF REVERSAL.  WE THINK IT
CLEAR, HOWEVER, THAT THESE IMPERFECTIONS ARE ENTIRELY SUFFICIENT TO
PRECLUDE ANY DEPENDENCE WE MIGHT OTHERWISE PLACE ON THE JURY VERDICT AS
SETTLING THE ISSUE OF VOLUNTARINESS HERE. 

                                       V. 

IN REACHING THE CONCLUSION WHICH WE DO, WE ARE NOT UNMINDFUL OF
SUBSTANTIAL INDEPENDENT EVIDENCE TENDING TO DEMONSTRATE THE GUILT OF
THE PETITIONER.  AS WAS SAID IN ROGERS V. RICHMOND, 365 U.S. 534, 541: 

"INDEED, IN MANY OF THE CASES IN WHICH THE COMMAND OF THE DUE PROCESS
CLAUSE HAS COMPELLED US TO REVERSE STATE CONVICTIONS INVOLVING THE USE
OF CONFESSIONS OBTAINED BY IMPERMISSIBLE METHODS, INDEPENDENT
CORROBORATING EVIDENCE LEFT LITTLE DOUBT OF THE TRUTH OF WHAT THE
DEFENDANT HAD CONFESSED.  DESPITE SUCH VERIFICATIONS, CONFESSIONS WERE
FOUND TO BE THE PRODUCT OF CONSTITUTIONALLY IMPERMISSIBLE METHODS IN
THEIR INDUCEMENT." 

OF COURSE, WE NEITHER EXPRESS NOR SUGGEST A VIEW WITH REGARD TO THE
ULTIMATE GUILT OR INNOCENCE OF THE PETITIONER HERE; THAT IS FOR A JURY
TO DECIDE ON A NEW TRIAL FREE OF CONSTITUTIONAL INFIRMITY, WHICH THE
STATE IS AT LIBERTY TO ORDER. 

THIS CASE ILLUSTRATES A PARTICULAR FACET OF POLICE UTILIZATION OF
IMPROPER METHODS.  WHILE HISTORY AMPLY SHOWS THAT CONFESSIONS HAVE
OFTEN BEEN EXTORTED TO SAVE LAW ENFORCEMENT OFFICIALS THE TROUBLE AND
EFFORT OF OBTAINING VALID AND INDEPENDENT EVIDENCE, THE COERCIVE
DEVICES USED HERE WERE DESIGNED TO OBTAIN ADMISSIONS WHICH WOULD
INCONTROVERTIBLY COMPLETE A CASE IN WHICH THERE HAD ALREADY BEEN
OBTAINED, BY PROPER INVESTIGATIVE EFFORTS, COMPETENT EVIDENCE
SUFFICIENT TO SUSTAIN A CONVICTION.  THE PROCEDURES HERE ARE NO LESS
CONSTITUTIONALLY IMPERMISSIBLE, AND PERHAPS MORE UNWARRANTED BECAUSE SO
UNNECESSARY.  THERE IS NO REASONABLE OR RATIONAL BASIS FOR CLAIMING
THAT THE OPPRESSIVE AND UNFAIR METHODS UTILIZED WERE IN ANY WAY
ESSENTIAL TO THE DETECTION OR SOLUTION OF THE CRIME OR TO THE
PROTECTION OF THE PUBLIC.  THE CLAIM, SO OFTEN MADE IN THE CONTEXT OF
COERCED CONFESSION CASES, THAT THE DEVICES EMPLOYED BY THE AUTHORITIES
WERE REQUISITE TO SOLUTION OF THE CRIME AND SUCCESSFUL PROSECUTION OF
THE GUILTY PARTY CANNOT HERE BE MADE. 

OFFICIAL OVERZEALOUSNESS OF THE TYPE WHICH VITIATES THE PETITIONER'S
CONVICTION BELOW HAS ONLY DELETERIOUS EFFECTS.  HERE IT HAS PUT THE
STATE TO THE SUBSTANTIAL ADDITIONAL EXPENSE OF PROSECUTING THE CASE
THROUGH THE APPELLATE COURTS AND, NOW, WILL REQUIRE EVEN A GREATER
EXPENDITURE IN THE EVENT OF RETRIAL, AS IS LIKELY.  BUT IT IS THE
DEPRIVATION OF THE PROTECTED RIGHTS THEMSELVES WHICH IS FUNDAMENTAL AND
THE MOST REGRETTABLE, NOT ONLY BECAUSE OF THE EFFECT ON THE INDIVIDUAL
DEFENDANT, BUT BECAUSE OF THE EFFECT ON OUR SYSTEM OF LAW AND JUSTICE. 
WHETHER THERE IS INVOLVED THE BRUTAL "THIRD DEGREE," OR THE SUBTLE BUT
NO LESS OFFENSIVE, METHODS HERE OBTAINING, OFFICIAL MISCONDUCT CANNOT
BUT BREED DISRESPECT FOR LAW, AS WELL AS FOR THOSE CHARGED WITH ITS
ENFORCEMENT. 

THE JUDGMENT BELOW IS VACATED AND THE CASE IS REMANDED TO THE SUPREME
COURT OF WASHINGTON FOR FURTHER PROCEEDINGS NOT INCONSISTENT HEREWITH. 
IT IS SO ORDERED. 

FN1  HAYNES MAKES NO CLAIM THAT HE WAS PHYSICALLY ABUSED, DEPRIVED OF
FOOD OR REST, OR SUBJECTED TO UNINTERRUPTED QUESTIONING FOR PROLONGED
PERIODS. 

FN2  THE PETITIONER'S BROTHER, KEITH HAYNES, HAD BEEN ARRESTED A FEW
MINUTES EARLIER.  THOUGH ALSO CHARGED WITH, AND CONVICTED OF,
PARTICIPATION IN THE ROBBERY OF THE SERVICE STATION, HE DOES NOT SEEK
REVIEW OF HIS CONVICTION HERE.    FN3  APPARENTLY RECOGNIZING THE
QUESTIONABLE NATURE OF SUCH A PRACTICE, THE SPOKANE POLICE, WE ARE
TOLD, HAVE SINCE ABANDONED USE OF THE "SMALL BOOK" AND THE ATTENDANT
RESTRICTIVE PRACTICES. 

FN4  THE WRITTEN CONFESSION APPEARS TO INDICATE ON ITS FACE THAT IT
WAS SIGNED SHORTLY BEFORE 2 P.M. ON DECEMBER 20, ABOUT 16 1/4 HOURS
AFTER HAYNES WAS ARRESTED.  THE STATE ASSERTS IN ITS BRIEF, HOWEVER,
THAT THE TOTAL TIME OF DETENTION PRIOR TO SIGNING OF THE CONFESSION WAS
"17 TO 19" HOURS.  WE ASSUME, FOR PURPOSES HERE, THAT THE 16-HOUR
PERIOD IS SUFFICIENTLY ACCURATE. 

FN5  WASHINGTON HAS SINCE REVISED ITS RULES OF PRACTICE TO PROVIDE
FOR A PRELIMINARY HEARING BY THE TRIAL COURT, OUT OF THE PRESENCE OF
THE JURY, ON THE ISSUE OF VOLUNTARINESS OF A CONFESSION.  SEE 58 WASH.
2D, AT 720, 364 P.2D, AT 937, AND RULES OF PLEADING, PRACTICE AND
PROCEDURE, WASH. REV. CODE, RULE 101.20W, VOL. O, AS AMENDED, EFFECTIVE
JANUARY 2, 1961. 

FN6  THERE IS NO INDICATION THAT SHE WAS ACTUALLY SO NOTIFIED.  IN
FACT, THE PETITIONER'S WIFE TELEPHONED POLICE AT ABOUT NOON ON THE DAY
FOLLOWING THE ROBBERY, BUT WAS REFUSED ANY INFORMATION BEYOND THE FACT
THAT HER HUSBAND WAS BEING HELD.  THOUGH SHE IDENTIFIED HERSELF AND
ASKED SPECIFICALLY WHY HER HUSBAND WAS IN JAIL, SHE WAS TOLD SIMPLY "TO
GET THE MORNING PAPER AND READ IT." 

FN7  THE PETITIONER'S INCOMMUNICADO DETENTION WAS IN CONTRAVENTION OF
AN EXPLICIT WASHINGTON STATUTE, WASH. REV. CODE, SEC. 9.33.020(5),
WHICH PROHIBITS AND MAKES IT A MISDEMEANOR FOR POLICE TO "REFUSE
PERMISSION TO (AN)  ...  ARRESTED PERSON TO COMMUNICATE WITH HIS
FRIENDS OR WITH AN ATTORNEY" WHEN THE REFUSAL HAS AS ITS PURPOSE THE
OBTAINING OF A CONFESSION. 

FN8  WHILE OCCURRING AFTER COMPLETION OF THE SIGNED CONFESSION HERE
CHALLENGED, SUCH ACTION NOT ONLY TENDS TO BEAR OUT PETITIONER'S VERSION
OF WHAT HAPPENED EARLIER BUT DISPLAYS AND CONFIRMS AN OFFICIAL
DISREGARD BY POLICE OF STATE LAW, SEE NOTE 7, SUPRA, AND OF THE BASIC
RIGHTS OF THE DEFENDANT.  SEE HALEY V. OHIO, 332 U.S. 596, 600 (OPINION
OF MR. JUSTICE DOUGLAS).  THE POLICE "WERE RATHER CONCERNED PRIMARILY
WITH SECURING A STATEMENT FROM DEFENDANT ON WHICH THEY COULD CONVICT
HIM.   THE UNDEVIATING INTENT OF THE OFFICERS TO EXTRACT A CONFESSION
FROM PETITIONER IS THEREFORE PATENT.   WHEN SUCH AN INTENT IS SHOWN,
THIS COURT HAS HELD THAT THE CONFESSION OBTAINED MUST BE EXAMINED WITH
THE MOST CAREFUL SCRUTINY  ...  ."  SPANO V. NEW YORK, 360 U.S. 315,
324. 

FN9  THOUGH THE DEPUTY PROSECUTOR HIMSELF APPEARED AS A WITNESS FOR
THE STATE AT THE TRIAL, HIS TESTIMONY WAS IN NO WAY DIRECTED TO THIS
STATEMENT MADE IN HIS OFFICE OR THE ATTENDANT CIRCUMSTANCES AND HE WAS
NOT RECALLED TO THE STAND AFTER HAYNES TESTIFIED SO THAT HE MIGHT
CONTROVERT THE PETITIONER'S VERSION OF EVENTS. 

FN10  SEE ALSO FIKES V. ALABAMA, 352 U.S. 191, 197-198; GALLEGOS V.
NEBRASKA, 342 U.S. 55, 65 (OPINION OF MR. JUSTICE REED). 

FN11  THE TRIAL COURT TOLD THE JURY: 

"AND IN THIS CONNECTION, I FURTHER INSTRUCT YOU THAT A CONFESSION OR
ADMISSION OF A DEFENDANT IS NOT RENDERED INVOLUNTARY BECAUSE HE IS NOT
AT THE TIME OF MAKING THE SAME REMINDED THAT HE WAS UNDER ARREST, OR
THAT HE WAS NOT OBLIGED TO REPLY, OR THAT HIS ANSWERS WOULD BE USED
AGAINST HIM, OR THAT HE WAS ENTITLED TO BE REPRESENTED BY COUNSEL." 

THAT THE JURY WAS TO TAKE THIS AS PRECLUDING CONSIDERATION OF THE
CITED FACTORS IS EVIDENCED BY THE IMMEDIATELY SUCCEEDING INSTRUCTION
WHICH ADVISED THAT IT SHOULD CONSIDER A DENIAL OF COMMUNICATION WITH
FRIENDS OR AN ATTORNEY IN CONNECTION WITH DETERMINING WHETHER THE
WRITTEN CONFESSION WAS VOLUNTARY OR NOT. 

FN12  SEE NOTE 10, SUPRA. 

FN13  THE INSTRUCTION COMMENCED: 

"BY STATUTE OF THE STATE OF WASHINGTON, IT IS PROVIDED: 

"'THE CONFESSION OF A DEFENDANT MADE UNDER INDUCEMENT, WITH ALL THE
CIRCUMSTANCES, MAY BE GIVEN AS EVIDENCE AGAINST HIM, EXCEPT WHEN MADE
UNDER THE INFLUENCE OF FEAR PRODUCED BY THREATS; BUT A CONFESSION MADE
UNDER INDUCEMENT IS NOT SUFFICIENT TO WARRANT A CONVICTION WITHOUT
CORROBORATING TESTIMONY." 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE STEWART
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

ON DECEMBER 19, 1957, AT 9:05 P.M., A REPORT WAS RECEIVED BY THE
SPOKANE POLICE STATION THAT A FILLING STATION ROBBERY WAS IN PROGRESS
IN A CERTAIN AREA OF THE CITY.  THE REPORT WAS BROADCAST TO POLICE CARS
WORKING IN THE AREA.  TWENTY-FIVE MINUTES LATER UNIFORMED OFFICERS
RIDING IN A POLICE CAR NEAR THE SCENE OF THE REPORTED ROBBERY OBSERVED
PETITIONER WALKING DOWN THE STREET.  AS THEY APPROACHED HIM HE WENT
INTO THE YARD OF A HOME IN THE VICINITY.  THE POLICE DROVE UP AND
CALLED TO PETITIONER, WHO WAS QUESTIONED FOR A MOMENT BY ONE OF THE
OFFICERS.  PETITIONER INDICATED THAT "HE LIVED THERE" AND, AFTER
TALKING WITH THE OFFICERS, WALKED ONTO THE PORCH OF THE HOUSE AND BEGAN
FUMBLING WITH THE SCREEN DOOR AS IF TO UNLOCK IT.  THE OFFICER REMAINED
AT THE CURB OBSERVING PETITIONER, WHO IN A FEW MOMENTS RETURNED TO THE
CAR AND SPONTANEOUSLY EXCLAIMED TO THE OFFICERS, "YOU GOT ME, LET'S
GO."  HE WAS PLACED IN THE POLICE CAR, ADMITTED THE ROBBERY TO OFFICERS
AND, AS THEY DROVE TO THE FILLING STATION, IDENTIFIED IT AS THE PLACE
HE HAD ROBBED.  HE WAS TAKEN TO THE POLICE STATION WHERE HE ARRIVED
WITHIN 20 MINUTES OF HIS ARREST AND MADE A SECOND ORAL CONFESSION TO
LIEUTENANT WAKELEY, WHO WAS IN CHARGE OF THE DETECTIVE OFFICE ON THE 4
O'CLOCK TO MIDNIGHT SHIFT.  THIS CONFESSION WAS RELATED BY THE
LIEUTENANT AT THE TRIAL, WITHOUT OBJECTION, IN THE FOLLOWING
TESTIMONY: 

"A.  (BY LT. WAKELEY.)  HE SAID THEY DECIDED TO HOLD UP A PLACE SO
THEY DROVE AROUND TO FIND SOME PLACE THAT DIDN'T SEEM TO HAVE ANY
CUSTOMERS AND THEY DIDN'T KNOW THE STREETS, DIDN'T KNOW THE TOWN VERY
WELL.  THEY SAID THEY WERE OUT WHERE THEY FOUND THE CAR.  THEY DROVE BY
AND SAW A SERVICE STATION WHICH DIDN'T SEEM TO HAVE ANY BUSINESS, SO
THEY PARKED THE CAR IN THE ALLEY AND WALKED INTO THE SERVICE STATION,
AND RAYMOND SAID THAT HE TOLD THE MAN IT WAS A HOLDUP AND HIS BROTHER
STOOD BEHIND THE MAN AND HE GOT THE MONEY FROM THE SERVICE STATION
OPERATOR.  HE DIDN'T THINK HIS BROTHER GOT ANY OF IT.  AFTER THEY HELD
UP THE PLACE THEY RAN OUT THE DOOR AND HE RAN DOWN THE SIDE STREET, NOT
DIRECTLY TOWARD THE CAR, DOWN AROUND TOWARD THE END OF THE BLOCK AND
CAME BACK DOWN THE ALLEY AND AS HE WAS APPROACHING THE CAR HE SAW A
POLICE OFFICER HAD HIS BROTHER IN CUSTODY.  SO HE TURNED AND RAN NORTH
ABOUT TWO BLOCKS AND THEN TURNED AND WENT WEST ABOUT THREE BLOCKS
BEFORE A PROWL CAR CAME ALONG AND THEY STOPPED AND TALKED TO HIM AND
ASKED HIM WHERE HE WAS GOING.  HE SAID HE WAS GOING HOME AND HE TURNED
AND WALKED UP ONTO THE PORCH.  HE STOOD ON THE PORCH AND HE SAID THE
PROWL CAR SAT OUT THERE IN THE STREET, DIDN'T MOVE, SO HE THOUGHT WELL,
I MIGHT AS WELL GIVE UP.  SO HE WENT BACK AND TOLD THEM HE WAS THE MAN
THEY WERE LOOKING FOR." 

THUS WITHIN AN HOUR AND 20 MINUTES AFTER HIS SURRENDER PETITIONER HAD
MADE TWO ORAL CONFESSIONS - BOTH ADMITTED INTO EVIDENCE WITHOUT
OBJECTION - IDENTICAL IN RELEVANT DETAILS TO THE WRITTEN CONFESSION
MADE THE FOLLOWING DAY WHICH THE COURT FINDS COERCED.  IN LIGHT OF THE
CIRCUMSTANCES SURROUNDING PETITIONER'S ARREST AND CONFESSION, I BELIEVE
THE COURT'S REVERSAL TO BE AN ABRUPT DEPARTURE FROM THE RULE LAID DOWN
IN THE CASES OF THIS COURT AND AN ENLARGEMENT OF THE REQUIREMENTS
HERETOFORE VISITED UPON STATE COURTS IN CONFESSION CASES.  I THEREFORE
DISSENT. 

THE PETITIONER IS NEITHER YOUTHFUL IN AGE (THOUGH HIS EXACT AGE IS
NOT SHOWN BY THE RECORD) NOR LACKING IN EXPERIENCE IN LAW BREAKING.  HE
IS MARRIED AND WAS A SKILLED SHEET-METAL WORKER TEMPORARILY
UNEMPLOYED.  SOME INDICATION OF HIS APPROXIMATE AGE IS GIVEN BY THE
FACTS THAT HIS WIFE HAD BEEN EMPLOYED FOR SOME 14 YEARS BY THE SAME
EMPLOYER, AND THAT 11 YEARS PRIOR TO THE TRIAL HE HAD HIS FIRST BRUSH
WITH THE LAW, I.E., DRUNKEN DRIVING, RESISTING ARREST AND BEING WITHOUT
A DRIVER'S LICENSE.  FURTHER, IN 1949 HE WAS CONVICTED OF BREAKING AND
ENTERING, AND IN 1950 OF ROBBERY.  DURING THE SAME YEAR HE PLEADED
GUILTY TO BREAKING JAIL AND TO "TAKING A CAR."  HE HAD NOT ONLY SERVED
TIME BUT HAD BEEN ON PAROLE FOR TWO YEARS, MAKING REGULAR VISITS TO
PAROLE OFFICERS TO WHOM HE WAS ASSIGNED.  HE CANNOT, THEREFORE, BE
PLACED IN THE CATEGORY OF THOSE TYPES OF PEOPLE WITH WHOM THE COURT'S
CASES IN THIS AREA HAVE ORDINARILY DEALT, SUCH AS THE MENTALLY
SUBNORMAL ACCUSED, FIKES V. ALABAMA, 352 U.S. 191 (1957); PAYNE V.
ARKANSAS, 356 U.S. 560 (1958), AND RECK V. PATE, 367 U.S. 433 (1961);
THE YOUTHFUL OFFENDER, SUCH AS HALEY V. OHIO, 332 U.S. 596 (1948), AND
GALLEGOS V. COLORADO, 370 U.S. 40 (1962); OR THE NAIVE AND
IMPRESSIONABLE DEFENDANT, SUCH AS LYNUMN V. ILLINOIS, 372 U.S. 528
(1963).  ON THE CONTRARY, HE IS A MATURE ADULT WHO APPEARS, FROM HIS
TESTIMONY AT THE TRIAL, TO BE OF AT LEAST AVERAGE INTELLIGENCE AND WHO
IS NEITHER A STRANGER TO POLICE TECHNIQUES AND CUSTODIAL PROCEDURES NOR
UNAWARE OF HIS RIGHTS ON ARREST.  THUS THE COURT'S RELIANCE ON LYNUMN
V. ILLINOIS, SUPRA, (FN1) IS COMPLETELY MISPLACED. 

I DO NOT SAY THAT ONLY THE YOUNG, THE WEAK AND THE MENTALLY DISTURBED
ARE SUSCEPTIBLE TO COERCION, BUT ONLY THAT THESE FACTORS HAVE
ORDINARILY BEEN INVOLVED IN COERCED CONFESSION CASES AND HAVE BEEN
CONSISTENTLY REGARDED BY THE COURT AS IMPORTANT CIRCUMSTANCES IN THE
DETERMINATION AS TO WHETHER A CONFESSION WAS VOLUNTARILY MADE.  ALONG
WITH CIRCUMSTANCES RELATED TO THE PETITIONER, OF COURSE, THE
DETERMINATION OF COERCION REQUIRES EXAMINATION OF THE CONDUCT OF THE
POLICE AND THE ENVIRONMENT IN WHICH INTERROGATION AND CONFESSION
OCCURRED.  WE HAVE LONG RECOGNIZED THAT COERCION NEED NOT BE BASED UPON
THE PHYSICAL TORTURE INVOLVED IN BROWN V. MISSISSIPPI, 297 U.S. 278
(1936).  BUT HERE THERE IS NO CONTENTION BY THE PETITIONER EITHER OF
PHYSICAL ABUSE OR OF THE MORE SOPHISTICATED TECHNIQUES ASSOCIATED WITH
POLICE COERCIVE PRACTICES.  THERE WAS NO EXTENDED OR REPEATED
INTERROGATION, (FN2) NO DEPRIVATION OF SLEEP OR FOOD, (FN3) NO USE OF
PSYCHIATRIC TECHNIQUES.  (FN4)  FURTHER, THERE WERE NO EXTERNAL
CIRCUMSTANCES SUCH AS THREAT OF MOB VIOLENCE (FN5) FURNISHING AN
ATMOSPHERE TENDING TO SUBVERT PETITIONER'S RATIONALITY AND FREE WILL. 

I CANNOT CONDONE THE CONDUCT OF THE POLICE IN HOLDING THE PETITIONER
INCOMMUNICADO, BUT OF COURSE WE HAVE NO SUPERVISORY POWER OVER STATE
COURTS.  THE QUESTION UNDER THE FOURTEENTH AMENDMENT IS WHETHER THE
WILL OF THE ACCUSED IS SO OVERBORNE AT THE TIME OF THE CONFESSION THAT
HIS STATEMENT IS NOT "THE PRODUCT OF A RATIONAL INTELLECT AND A FREE
WILL," RECK V. PATE, SUPRA, AT 440, AND ITS DETERMINATION "IS ONE ON
WHICH WE MUST MAKE AN INDEPENDENT DETERMINATION ON THE UNDISPUTED
FACTS."  MALINSKI V. NEW YORK, 324 U.S. 401, 404 (1945), CITING LISENBA
V. CALIFORNIA, 314 U.S. 219 (1941), AND ASHCRAFT V. TENNESSEE, 322 U.S.
143 (1944).  WE HAVE HELD THAT THE FACT THAT ONE HAS BEEN DENIED
CONSULTATION WITH AN ATTORNEY, CICENIA V. LAGAY, 357 U.S. 504 (1958),
CROOKER V. CALIFORNIA, 357 U.S. 433 (1958), WAS NOT IN ITSELF
CONTROLLING IN SUCH CASES.  FURTHER, NOT EVEN THE FACT THAT ONE IS
"HELD INCOMMUNICADO, IS SUBJECTED TO QUESTIONING BY OFFICERS FOR LONG
PERIODS, AND DEPRIVED OF THE ADVICE OF COUNSEL," WITHOUT A SHOWING THAT
HE HAD "SO LOST HIS FREEDOM OF ACTION" THAT THE CONFESSION WAS NOT HIS
OWN, REQUIRES A REVERSAL UNDER THE FOURTEENTH AMENDMENT.  LISENBA V.
CALIFORNIA, SUPRA, AT 240-241.  FINALLY, THE FACT THAT POLICE OFFICERS
VIOLATED STATE STATUTES IN THEIR TREATMENT OF THE PETITIONER DOES "NOT
FURNISH AN ANSWER" TO THE QUESTION WHETHER A CONFESSION WAS VOLUNTARILY
MADE.  ID., AT 235; SEE GALLEGOS V. NEBRASKA, 342 U.S. 55 (1951). 

THE COURT'S REVERSAL HERE MUST BE BASED UPON THE FACT THAT, ON THE
DAY AFTER PETITIONER'S ARREST, WHEN HE SIGNED THE WRITTEN CONFESSION AT
ISSUE, HE WAS TOLD THAT AFTER HE MADE A STATEMENT AND WAS BOOKED HE
COULD CALL HIS WIFE.  AS TO HIS TESTIMONY RELATING TO THE EVENING OF
HIS ARREST, IT IS CERTAINLY DISPUTED.  PETITIONER TESTIFIED THAT HE
ASKED DETECTIVE PIKE IF HE COULD CALL HIS WIFE, BUT DETECTIVE PIKE
TESTIFIED THAT HE DID NOT EVEN TALK TO PETITIONER.  LIEUTENANT WAKELEY
TESTIFIED UNEQUIVOCALLY THAT PETITIONER MADE NO SUCH REQUESTS TO HIM
DURING THEIR CONVERSATION, THOUGH HE COULD NOT RECALL WHETHER SUCH
REQUESTS WERE MADE "AT ANY TIME THAT NIGHT."  (FN6) 

THE COURT CONCLUDES, THEN, THAT THE POLICE, BY HOLDING PETITIONER
INCOMMUNICADO AND TELLING HIM THAT HE COULD CALL HIS WIFE AFTER HE MADE
A STATEMENT AND WAS BOOKED, WRUNG FROM HIM A CONFESSION HE WOULD NOT
OTHERWISE HAVE MADE, A CONFESSION WHICH WAS NOT THE PRODUCT OF A FREE
WILL.  IN CROOKER V. CALIFORNIA, SUPRA, AT 436, HOWEVER, WE FOUND NO
COERCION OR INDUCEMENT, DESPITE THE FACT THAT THE PETITIONER'S REPEATED
REQUESTS FOR AN ATTORNEY WERE DENIED AND HE "WAS TOLD THAT 'AFTER (THE)
INVESTIGATION WAS CONCLUDED HE COULD CALL AN ATTORNEY.'" 

IN LIGHT OF PETITIONER'S AGE, INTELLIGENCE AND EXPERIENCE WITH THE
POLICE, IN LIGHT OF THE COMPARATIVE ABSENCE OF ANY COERCIVE
CIRCUMSTANCES, AND IN LIGHT OF THE FACT THAT PETITIONER NEVER, FROM THE
TIME OF HIS ARREST, EVIDENCED A WILL TO DENY HIS GUILT, I MUST CONCLUDE
THAT HIS WRITTEN CONFESSION WAS NOT INVOLUNTARY.  I FIND NO SUPPORT IN
ANY OF THE 33 CASES DECIDED ON THE QUESTION BY THIS COURT FOR A
CONTRARY CONCLUSION.  THEREFORE, I WOULD AFFIRM THE JUDGMENT BEFORE
US. 

FN1  IN LYNUMN V. ILLINOIS, 372 U.S. 528 (1963), THE PETITIONER WAS A
WOMAN WHO "HAD NO PREVIOUS EXPERIENCE WITH THE CRIMINAL LAW, AND HAD NO
REASON NOT TO BELIEVE THAT THE POLICE HAD AMPLE POWER TO CARRY OUT
THEIR THREATS."  ID., AT 534.  SHE CONFESSED AFTER THE POLICE TOLD HER
THAT IF SHE DID NOT COOPERATE SHE WOULD BE IMPRISONED FOR 10 YEARS, HER
CHILDREN WOULD BE TAKEN AWAY AND SHE WOULD BE DEPRIVED OF STATE AID FOR
THEM.    FN2  SEE SPANO V. NEW YORK, 360 U.S. 315 (1959); WARD V.
TEXAS, 316 U.S. 547 (1942); CHAMBERS V. FLORIDA, 309 U.S. 227 (1940). 

FN3  SEE RECK V. PATE, 367 U.S. 433 (1961); PAYNE V. ARKANSAS, 356
U.S. 560 (1958). 

FN4  SEE LEYRA V. DENNO, 347 U.S. 556 (1954); CF. MALINSKI V. NEW
YORK, 324 U.S. 401 (1945). 

FN5  SEE PAYNE V. ARKANSAS, NOTE 3, SUPRA; CHAMBERS V. FLORIDA, NOTE
2, SUPRA. 

FN6  LIEUTENANT WAKELEY TESTIFIED AS FOLLOWS: 

"Q.  DID RAYMOND HAYNES AT ANY TIME DURING THAT CONVERSATION (WHEN HE
WAS INTERROGATED) ASK PERMISSION TO MAKE A TELEPHONE CALL TO HIS WIFE? 
A. NOT DURING THE CONVERSATION. 

"Q.  WELL, AT ANY TIME THAT NIGHT?  A. HE MIGHT HAVE ASKED AFTERWARD,
AFTER I GOT THROUGH TALKING TO HIM.  HE WANTED TO KNOW IF HIS WIFE
WOULD BE NOTIFIED.  I TOLD HIM WE WOULD NOTIFY HER THAT HE WAS BEING
HELD. 

"Q.  DID HE ASK PERMISSION TO MAKE A PHONE CALL HIMSELF TO HIS WIFE? 
A. HE MAY HAVE.  I DON'T REMEMBER EXACTLY WHETHER HE ASKED OR WHETHER
WE WOULDN'T NOTIFY HIS WIFE. 

"Q.  DID HE SAY ANYTHING TO YOU, LIEUTENANT WAKELEY, IF YOU REMEMBER
IN SUBSTANCE THAT HE WANTED TO CALL HIS WIFE SO THAT SHE COULD GET A
LAWYER?  A. NO, I DON'T REMEMBER THAT." 
..END :









WATSON V. MEMPHIS 373 U.S. 526 


NO. 424.  ARGUED APRIL 17-18, 1963.  - DECIDED MAY 27, 1963.  - 303 F.2D
863, REVERSED. 


IN 1960, PETITIONERS, NEGRO RESIDENTS OF MEMPHIS, TENN., SUED IN A
FEDERAL DISTRICT COURT FOR DECLARATORY AND INJUNCTIVE RELIEF DIRECTING
IMMEDIATE DESEGREGATION OF PUBLIC PARKS AND OTHER PUBLICLY OWNED OR
OPERATED RECREATIONAL FACILITIES FROM WHICH NEGROES WERE STILL
EXCLUDED.  THE CITY DENIED NEITHER THE FACT THAT THE MAJORITY OF THE
RELEVANT FACILITIES WERE OPERATED ON A SEGREGATED BASIS NOR ITS DUTY
UNDER THE FOURTEENTH AMENDMENT TO TERMINATE ITS POLICY OF CONDITIONING
USE OF SUCH FACILITIES ON RACE.  INSTEAD, IT POINTED TO THE PARTIAL
DESEGREGATION ALREADY EFFECTED AND ATTEMPTED TO JUSTIFY ITS FURTHER
DELAY IN CONFORMING FULLY TO CONSTITUTIONAL MANDATES BY URGING THE NEED
AND WISDOM OF PROCEEDING SLOWLY AND GRADUALLY IN ITS DESEGREGATION
EFFORTS.  THERE WAS NO EVIDENCE THAT THERE HAD BEEN ANY VIOLENCE OR
MEANINGFUL DISTURBANCES WHEN OTHER RECREATIONAL FACILITIES HAD BEEN
DESEGREGATED, AND THERE WAS EVIDENCE THAT SUCH PRIOR TRANSITIONS HAD
BEEN PEACEFUL.  THE DISTRICT COURT DENIED THE RELIEF SOUGHT AND ORDERED
THE CITY TO SUBMIT WITHIN SIX MONTHS A PLAN PROVIDING ADDITIONAL TIME
FOR DESEGREGATION OF THE RELEVANT FACILITIES.  HELD:  THE CONTINUED
DENIAL TO PETITIONERS OF THE USE OF CITY FACILITIES SOLELY BECAUSE OF
THEIR RACE IS WITHOUT WARRANT, AND PROMPT VINDICATION OF THEIR RIGHTS
IS REQUIRED.  PP. 528-539. 

(A)  IN CONSIDERING THE APPROPRIATENESS OF THE EQUITABLE DECREE
ENTERED BELOW INVITING A PLAN CALLING FOR AN EVEN LONGER DELAY IN
EFFECTING DESEGREGATION, THIS COURT CANNOT IGNORE THE PASSAGE OF A
SUBSTANTIAL PERIOD OF TIME SINCE THE ORIGINAL DECLARATION OF THE
MANIFEST UNCONSTITUTIONALITY OF RACIAL PRACTICES SUCH AS ARE HERE
CHALLENGED, THE REPEATED AND NUMEROUS DECISIONS GIVING NOTICE OF SUCH
ILLEGALITY, AND THE MANY INTERVENING OPPORTUNITIES HERETOFORE AVAILABLE
TO ATTAIN THE EQUALITY OF TREATMENT WHICH THE FOURTEENTH AMENDMENT
COMMANDS THE STATES TO ACHIEVE.  PP. 529-530. 

(B)  THIS COURT'S DECISION IN BROWN V. BOARD OF EDUCATION, 349 U.S.
294, NEVER CONTEMPLATED THAT THE CONCEPT OF "DELIBERATE SPEED" WOULD
COUNTENANCE INDEFINITE DELAY IN ELIMINATION OF RACIAL BARRIERS IN
PUBLIC SCHOOLS, LET ALONE OTHER PUBLIC FACILITIES NOT INVOLVING THE
SAME PHYSICAL PROBLEMS OR COMPARABLE CONDITIONS.  P. 530. 

(C)  DESEGREGATION OF PARKS AND OTHER RECREATIONAL FACILITIES DOES
NOT PRESENT THE SAME KINDS OF COGNIZABLE DIFFICULTIES INHERING IN
ELIMINATION OF RACIAL CLASSIFICATION IN SCHOOLS, AT WHICH ATTENDANCE IS
COMPULSORY, THE ADEQUACY OF TEACHERS AND FACILITIES CRUCIAL, AND
QUESTIONS OF GEOGRAPHIC ASSIGNMENT OFTEN OF MAJOR SIGNIFICANCE.  PP.
530-532. 

(D)  EVEN THE DELAY COUNTENANCED BY BROWN WAS A NECESSARY, ALBEIT
SIGNIFICANT, ADAPTATION OF THE USUAL PRINCIPLE THAT ANY DEPRIVATION OF
CONSTITUTIONAL RIGHTS CALLS FOR PROMPT RECTIFICATION.  THE RIGHTS HERE
ASSERTED ARE, LIKE ALL SUCH RIGHTS, PRESENT RIGHTS, AND UNLESS THERE IS
AN OVERWHELMINGLY COMPELLING REASON, THEY ARE TO BE PROMPTLY
FULFILLED.  PP. 532-533. 

(E)  THE CLAIMS OF THE CITY TO FURTHER DELAY IN AFFORDING THE
PETITIONERS THAT TO WHICH THEY ARE CLEARLY AND UNQUESTIONABLY ENTITLED
CANNOT BE UPHELD EXCEPT UPON THE MOST CONVINCING AND IMPRESSIVE
DEMONSTRATION BY THE CITY THAT SUCH DELAY IS MANIFESTLY COMPELLED BY
CONSTITUTIONALLY COGNIZABLE CIRCUMSTANCES WARRANTING THE EXERCISE OF AN
APPROPRIATE EQUITABLE DISCRETION BY A COURT.  P. 533. 

(F)  CONSTITUTIONAL RIGHTS MAY NOT BE DENIED SIMPLY BECAUSE OF
HOSTILITY TO THEIR ASSERTION OR EXERCISE.  PP. 535-536. 

(G)  THE CITY HAS FAILED TO DEMONSTRATE ANY COMPELLING OR CONVINCING
REASON REQUIRING FURTHER DELAY IN IMPLEMENTING THE CONSTITUTIONAL
PROSCRIPTION OF SEGREGATION OF PUBLICLY OWNED OR OPERATED RECREATIONAL
FACILITIES.  PP. 534-539. 

WATSON ET AL. V. CITY OF MEMPHIS ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE, SIMPLY STATED, IS WHETHER THE CITY OF MEMPHIS
MAY FURTHER DELAY IN MEETING FULLY ITS CONSTITUTIONAL OBLIGATION UNDER
THE FOURTEENTH AMENDMENT TO DESEGREGATE ITS PUBLIC PARKS AND OTHER
MUNICIPAL RECREATIONAL FACILITIES. 

THE PETITIONERS, ADULT NEGRO RESIDENTS OF MEMPHIS, COMMENCED THIS
ACTION AGAINST THE CITY IN MAY 1960 IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE, SEEKING DECLARATORY AND
INJUNCTIVE RELIEF DIRECTING IMMEDIATE DESEGREGATION OF MUNICIPAL PARKS
AND OTHER CITY OWNED OR OPERATED RECREATIONAL FACILITIES FROM WHICH
NEGROES WERE THEN STILL EXCLUDED.  THE CITY DENIED NEITHER THE FACT
THAT THE MAJORITY OF THE RELEVANT FACILITIES WERE OPERATED ON A
SEGREGATED BASIS NOR ITS DUTY UNDER THE FOURTEENTH AMENDMENT TO
TERMINATE ITS POLICY OF CONDITIONING USE OF SUCH FACILITIES ON RACE. 
INSTEAD, IT POINTED TO THE PARTIAL DESEGREGATION ALREADY EFFECTED AND
ATTEMPTED TO JUSTIFY ITS FURTHER DELAY IN CONFORMING FULLY AND AT ONCE
TO CONSTITUTIONAL MANDATES BY URGING THE NEED AND WISDOM OF PROCEEDING
SLOWLY AND GRADUALLY IN ITS DESEGREGATION EFFORTS. 

THE DISTRICT COURT DENIED THE RELIEF SOUGHT BY THE PETITIONERS AND
ORDERED THE CITY TO SUBMIT, WITHIN SIX MONTHS, A PLAN PROVIDING
ADDITIONAL TIME FOR DESEGREGATION OF THE RELEVANT FACILITIES.  (FN1)
THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED.  303 F.2D 863.  WE
GRANTED CERTIORARI, 371 U.S. 909, TO CONSIDER THE IMPORTANT QUESTION
PRESENTED AND THE APPLICABILITY HERE OF THE PRINCIPLES ENUNCIATED BY
THIS COURT IN THE SECOND BROWN DECISION, BROWN V. BOARD OF EDUCATION,
349 U.S. 294, UPON WHICH THE COURTS BELOW RELIED IN FURTHER DELAYING
COMPLETE VINDICATION OF THE PETITIONERS' CONSTITUTIONAL RIGHTS. 

     I. 

IT IS IMPORTANT AT THE OUTSET TO NOTE THE CHRONOLOGICAL CONTEXT IN
WHICH THE CITY MAKES ITS CLAIM TO ENTITLEMENT TO ADDITIONAL TIME WITHIN
WHICH TO WORK OUT COMPLETE ELIMINATION OF RACIAL BARRIERS TO USE OF THE
PUBLIC FACILITIES HERE INVOLVED.  IT IS NOW MORE THAN NINE YEARS SINCE
THIS COURT HELD IN THE FIRST BROWN DECISION, BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, THAT RACIAL SEGREGATION IN STATE PUBLIC
SCHOOLS VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  AND IT WAS ALMOST EIGHT YEARS AGO - IN 1955, THE YEAR AFTER
THE DECISION ON THE MERITS IN BROWN - THAT THE CONSTITUTIONAL
PROSCRIPTION OF STATE ENFORCED RACIAL SEGREGATION WAS FOUND TO APPLY TO
PUBLIC RECREATIONAL FACILITIES.  SEE DAWSON V. MAYOR AND CITY COUNCIL
OF BALTIMORE, 220 F.2D 386, AFF'D, 350 U.S. 877; SEE ALSO MUIR V.
LOUISVILLE PARK THEATRICAL ASSN., 347 U.S. 971. 

THUS, THE APPLICABILITY HERE OF THE FACTORS AND REASONING RELIED ON IN
FRAMING THE 1955 DECREE IN THE SECOND BROWN DECISION, SUPRA, WHICH
CONTEMPLATED THE POSSIBLE NEED OF SOME LIMITED DELAY IN EFFECTING TOTAL
DESEGREGATION OF PUBLIC SCHOOLS, MUST BE CONSIDERED NOT ONLY IN THE
CONTEXT OF FACTUAL SIMILARITIES, IF ANY, BETWEEN THAT CASE AND THIS
ONE, BUT ALSO IN LIGHT OF THE SIGNIFICANT FACT THAT THE GOVERNING
CONSTITUTIONAL PRINCIPLES NO LONGER BEAR THE IMPRINT OF NEWLY
ENUNCIATED DOCTRINE.  IN CONSIDERING THE APPROPRIATENESS OF THE
EQUITABLE DECREE ENTERED BELOW INVITING A PLAN CALLING FOR AN EVEN
LONGER DELAY IN EFFECTING DESEGREGATION, WE CANNOT IGNORE THE PASSAGE
OF A SUBSTANTIAL PERIOD OF TIME SINCE THE ORIGINAL DECLARATION OF THE
MANIFEST UNCONSTITUTIONALITY OF RACIAL PRACTICES SUCH AS ARE HERE
CHALLENGED, THE REPEATED AND NUMEROUS DECISIONS GIVING NOTICE OF SUCH
ILLEGALITY, (FN2) AND THE MANY INTERVENING OPPORTUNITIES HERETOFORE
AVAILABLE TO ATTAIN THE EQUALITY OF TREATMENT WHICH THE FOURTEENTH
AMENDMENT COMMANDS THE STATES TO ACHIEVE.  THESE FACTORS MUST
INEVITABLY AND SUBSTANTIALLY TEMPER THE PRESENT IMPORT OF SUCH BROAD
POLICY CONSIDERATIONS AS MAY HAVE UNDERLAIN, EVEN IN PART, THE FORM OF
DECREE ULTIMATELY FRAMED IN THE BROWN CASE.  GIVEN THE EXTENDED TIME
WHICH HAS ELAPSED, IT IS FAR FROM CLEAR THAT THE MANDATE OF THE SECOND
BROWN DECISION REQUIRING THAT DESEGREGATION PROCEED WITH "ALL
DELIBERATE SPEED" WOULD TODAY BE FULLY SATISFIED BY TYPES OF PLANS OR
PROGRAMS FOR DESEGREGATION OF PUBLIC EDUCATIONAL FACILITIES WHICH EIGHT
YEARS AGO MIGHT HAVE BEEN DEEMED SUFFICIENT.  BROWN NEVER CONTEMPLATED
THAT THE CONCEPT OF "DELIBERATE SPEED" WOULD COUNTENANCE INDEFINITE
DELAY IN ELIMINATION OF RACIAL BARRIERS IN SCHOOLS, LET ALONE OTHER
PUBLIC FACILITIES NOT INVOLVING THE SAME PHYSICAL PROBLEMS OR
COMPARABLE CONDITIONS. 

      II. 

WHEN, IN 1954, IN THE FIRST BROWN DECISION, THIS COURT DECLARED THE
CONSTITUTIONAL IMPERMISSIBILITY OF RACIAL SEGREGATION IN PUBLIC
SCHOOLS, IT DID NOT IMMEDIATELY FRAME A DECREE, BUT INSTEAD INVITED AND
HEARD FURTHER ARGUMENT ON THE QUESTION OF RELIEF.  IN ITS SUBSEQUENT
OPINION, THE COURT NOTED THAT "FULL IMPLEMENTATION OF THE APPLICABLE
CONSTITUTIONAL PRINCIPLES MAY REQUIRE SOLUTION OF VARIED LOCAL SCHOOL
PROBLEMS" AND INDICATED AN APPROPRIATE SCOPE FOR THE APPLICATION OF
EQUITABLE PRINCIPLES CONSISTENT WITH BOTH PUBLIC AND PRIVATE NEED AND
FOR "EXERCISE OF (THE)  ... TRADITIONAL ATTRIBUTES OF EQUITY POWER." 
349 U.S., AT 299-300.  THE DISTRICT COURTS TO WHICH THE CASES THERE
UNDER CONSIDERATION WERE REMANDED WERE INVESTED WITH A DISCRETION
APPROPRIATE TO ULTIMATE FASHIONING OF DETAILED RELIEF CONSONANT WITH
PROPERLY COGNIZABLE LOCAL CONDITIONS.  THIS DID NOT MEAN, HOWEVER, THAT
THE DISCRETION WAS EVEN THEN UNFETTERED OR EXERCISABLE WITHOUT
RESTRAINT.  BASIC TO THE REMAND WAS THE CONCEPT THAT DESEGREGATION MUST
PROCEED WITH "ALL DELIBERATE SPEED," AND THE PROBLEMS WHICH MIGHT BE
CONSIDERED AND WHICH MIGHT JUSTIFY A DECREE REQUIRING SOMETHING LESS
THAN IMMEDIATE AND TOTAL DESEGREGATION WERE SEVERELY DELIMITED. 
HOSTILITY TO THE CONSTITUTIONAL PRECEPTS UNDERLYING THE ORIGINAL
DECISION WAS EXPRESSLY AND FIRMLY PRETERMITTED AS SUCH AN OPERATIVE
FACTOR.  ID., AT 300. 

THE NATURE OF THE ULTIMATE RESOLUTION EFFECTED IN THE SECOND BROWN
DECISION LARGELY REFLECTED NO MORE THAN A RECOGNITION OF THE UNUSUAL
AND PARTICULAR PROBLEMS INHERING IN DESEGREGATING LARGE NUMBERS OF
SCHOOLS THROUGHOUT THE COUNTRY.  THE CAREFUL SPECIFICATION OF FACTORS
RELEVANT TO A DETERMINATION WHETHER ANY DELAY IN COMPLYING FULLY AND
COMPLETELY WITH THE CONSTITUTIONAL MANDATE WOULD BE WARRANTED
DEMONSTRATED A CONCERN THAT DELAY NOT BE CONDITIONED UPON INSUFFICIENT
REASONS OR, IN ANY EVENT, TOLERATED UNLESS IT IMPERATIVELY AND
COMPELLINGLY APPEARED UNAVOIDABLE. 

THIS CASE PRESENTS NO OBVIOUS OCCASION FOR THE APPLICATION OF BROWN. 
WE ARE NOT HERE CONFRONTED WITH ATTEMPTED DESEGREGATION OF A LOCAL
SCHOOL SYSTEM WITH ANY OR ALL OF THE PERHAPS UNIQUELY ATTENDANT
PROBLEMS, ADMINISTRATIVE AND OTHER, SPECIFIED IN THE SECOND BROWN
DECISION AS PROPER CONSIDERATIONS IN WEIGHING THE NEED FOR FURTHER
DELAY IN VINDICATING THE FOURTEENTH AMENDMENT RIGHTS OF PETITIONERS. 
(FN3)  DESEGREGATION OF PARKS AND OTHER RECREATIONAL FACILITIES DOES
NOT PRESENT THE SAME KINDS OF COGNIZABLE DIFFICULTIES INHERING IN
ELIMINATION OF RACIAL CLASSIFICATION IN SCHOOLS, AT WHICH ATTENDANCE IS
COMPULSORY, THE ADEQUACY OF TEACHERS AND FACILITIES CRUCIAL, AND
QUESTIONS OF GEOGRAPHIC ASSIGNMENT OFTEN OF MAJOR SIGNIFICANCE.  (FN4) 

MOST IMPORTANTLY, OF COURSE, IT MUST BE RECOGNIZED THAT EVEN THE
DELAY COUNTENANCED BY BROWN WAS A NECESSARY, ALBEIT SIGNIFICANT,
ADAPTATION OF THE USUAL PRINCIPLE THAT ANY DEPRIVATION OF
CONSTITUTIONAL RIGHTS CALLS FOR PROMPT RECTIFICATION.  THE RIGHTS HERE
ASSERTED ARE, LIKE ALL SUCH RIGHTS, PRESENT RIGHTS; THEY ARE NOT MERELY
HOPES TO SOME FUTURE ENJOYMENT OF SOME FORMALISTIC CONSTITUTIONAL
PROMISE.  THE BASIC GUARANTEES OF OUR CONSTITUTION ARE WARRANTS FOR THE
HERE AND NOW AND, UNLESS THERE IS AN OVERWHELMINGLY COMPELLING REASON,
THEY ARE TO BE PROMPTLY FULFILLED.  (FN5) THE SECOND BROWN DECISION IS
BUT A NARROWLY DRAWN, AND CAREFULLY LIMITED QUALIFICATION UPON USUAL
PRECEPTS OF CONSTITUTIONAL ADJUDICATION AND IS NOT TO BE UNNECESSARILY
EXPANDED IN APPLICATION. 

SOLELY BECAUSE OF THEIR RACE, THE PETITIONERS HERE HAVE BEEN REFUSED
THE USE OF CITY OWNED OR OPERATED PARKS AND OTHER RECREATIONAL
FACILITIES WHICH THE CONSTITUTION MANDATES BE OPEN TO THEIR ENJOYMENT
ON EQUAL TERMS WITH WHITE PERSONS.  THE CITY HAS EFFECTED, CONTINUES TO
EFFECT, AND CLAIMS THE RIGHT OR NEED TO PROLONG PATENTLY
UNCONSTITUTIONAL RACIAL DISCRIMINATIONS VIOLATIVE OF NOW LONG-DECLARED
AND WELL-ESTABLISHED INDIVIDUAL RIGHTS.  THE CLAIMS OF THE CITY TO
FURTHER DELAY IN AFFORDING THE PETITIONERS THAT TO WHICH THEY ARE
CLEARLY AND UNQUESTIONABLY ENTITLED CANNOT BE UPHELD EXCEPT UPON THE
MOST CONVINCING AND IMPRESSIVE DEMONSTRATION BY THE CITY THAT SUCH
DELAY IS MANIFESTLY COMPELLED BY CONSTITUTIONALLY COGNIZABLE
CIRCUMSTANCES WARRANTING THE EXERCISE OF AN APPROPRIATE EQUITABLE
DISCRETION BY A COURT.  IN SHORT, THE CITY MUST SUSTAIN AN EXTREMELY
HEAVY BURDEN OF PROOF. 

EXAMINATION OF THE FACTS OF THIS CASE IN LIGHT OF THE FOREGOING
DISCUSSION DISCLOSES WITH SINGULAR CLARITY THAT THIS BURDEN HAS NOT
BEEN SUSTAINED; INDEED, IT IS PATENT FROM THE RECORD THAT THE
PRINCIPLES ENUNCIATED IN THE SECOND BROWN DECISION HAVE ABSOLUTELY NO
APPLICATION HERE. 

         III. 

THE FINDINGS OF THE DISTRICT COURT DISCLOSE AN UNMISTAKABLE AND
PERVASIVE PATTERN OF LOCAL SEGREGATION, WHICH, IN FACT, THE CITY MAKES
NO ATTEMPT TO DENY, BUT MERELY ATTEMPTS TO JUSTIFY AS NECESSARY FOR THE
TIME BEING.  MEMPHIS OWNS 131 PARKS, ALL OF WHICH ARE OPERATED BY THE
MEMPHIS PARK COMMISSION.  OF THESE, ONLY 25 WERE AT THE TIME OF TRIAL
OPEN TO USE WITHOUT REGARD TO RACE; (FN6) 58 WERE RESTRICTED TO USE BY
WHITES AND 25 TO USE BY NEGROES; THE REMAINING 23 PARKS WERE
UNDEVELOPED RAW LAND.  SUBJECT TO EXCEPTIONS, NEIGHBORHOOD PARKS WERE
GENERALLY SEGREGATED ACCORDING TO THE RACIAL CHARACTER OF THE AREA IN
WHICH LOCATED.  THE CITY PARK COMMISSION ALSO OPERATES A NUMBER OF
ADDITIONAL RECREATIONAL FACILITIES, BY FAR THE LARGEST SHARE OF WHICH
WERE FOUND TO BE RACIALLY SEGREGATED.  THOUGH A ZOO, AN ART GALLERY AND
CERTAIN BOATING AND OTHER FACILITIES ARE NOW DESEGREGATED, AOUBT TWO
THIRDS (40) OF THE 61 CITY-OWNED PLAYGROUNDS WERE AT THE TIME OF TRIAL
RESERVED FOR WHITES ONLY, AND THE REMAINDER WERE SET ASIDE FOR NEGRO
USE.  THIRTY OF THE 56 PLAYGROUNDS AND OTHER FACILITIES OPERATED BY THE
MUNICIPAL PARK COMMISSION ON PROPERTY OWNED BY CHURCHES, PRIVATE
GROUPS, OR THE SCHOOL BOARD WERE SET ASIDE FOR THE EXCLUSIVE USE OF
WHITES, WHILE 26 WERE RESERVED FOR NEGROES.  ALL 12 OF THE MUNICIPAL
COMMUNITY CENTERS WERE SEGREGATED, EIGHT BEING AVAILABLE ONLY TO WHITES
AND FOUR TO NEGROES.  ONLY TWO OF THE SEVEN CITY GOLF COURSES WERE OPEN
TO NEGROES; PLAY ON THE REMAINING FIVE WAS LIMITED TO WHITES.  WHILE
SEVERAL OF THESE PROPERTIES HAVE BEEN DESEGREGATED SINCE THE FILING OF
SUIT, THE GENERAL PATTERN OF RACIAL SEGREGATION IN SUCH PUBLIC
RECREATIONAL FACILITIES PERSISTS.  (FN7) 

THE CITY ASSERTED IN THE COURT BELOW, AND STATES HERE, THAT ITS GOOD
FAITH IN ATTEMPTING TO COMPLY WITH THE REQUIREMENTS OF THE CONSTITUTION
IS NOT IN ISSUE, AND CONTENDS THAT GRADUAL DESEGREGATION ON A FACILITY
BY-FACILITY BASIS IS NECESSARY TO PREVENT INTERRACIAL DISTURBANCES,
VIOLENCE, RIOTS, AND COMMUNITY CONFUSION AND TURMOIL.  THE COMPELLING
ANSWER TO THIS CONTENTION IS THAT CONSTITUTIONAL RIGHTS MAY NOT BE
DENIED SIMPLY BECAUSE OF HOSTILITY TO THEIR ASSERTION OR EXERCISE.  SEE
WRIGHT V. GEORGIA, ANTE, P. 284; BROWN V. BOARD OF EDUCATION, 349 U.S.
294, 300.  CF. TAYLOR V. LOUISIANA, 370 U.S. 154.  AS DECLARED IN
COOPER V. AARON, 358 U.S. 1, 16, "LAW AND ORDER ARE NOT ...  TO BE
PRESERVED BY DEPRIVING THE NEGRO CHILDREN OF THEIR CONSTITUTIONAL
RIGHTS."  THIS IS REALLY NO MORE THAN AN APPLICATION OF A PRINCIPLE
ENUNCIATED MUCH EARLIER IN BUCHANAN V. WARLEY, 245 U.S. 60, A CASE
DEALING WITH A SOMEWHAT DIFFERENT FORM OF STATE-ORDAINED SEGREGATION -
ENFORCED SEPARATION OF NEGROES AND WHITES BY NEIGHBORHOOD.  A UNANIMOUS
COURT, IN STRIKING DOWN THE OFFICIALLY IMPOSED PATTERN OF RACIAL
SEGREGATION THERE IN QUESTION, DECLARED ALMOST A HALF CENTURY AGO: 

"IT IS URGED THAT THIS PROPOSED SEGREGATION WILL PROMOTE THE PUBLIC
PEACE BY PREVENTING RACE CONFLICTS.  DESIRABLE AS THIS IS, AND
IMPORTANT AS IS THE PRESERVATION OF THE PUBLIC PEACE, THIS AIM CANNOT
BE ACCOMPLISHED BY LAWS OR ORDINANCES WHICH DENY RIGHTS CREATED OR
PROTECTED BY THE FEDERAL CONSTITUTION."  245 U.S., AT 81. 

BEYOND THIS, HOWEVER, NEITHER THE ASSERTED FEARS OF VIOLENCE AND
TUMULT NOR THE ASSERTED INABILITY TO PRESERVE THE PEACE WAS
DEMONSTRATED AT TRIAL TO BE ANYTHING MORE THAN PERSONAL SPECULATIONS OR
VAGUE DISQUIETUDES OF CITY OFFICIALS.  THERE IS NO INDICATION THAT
THERE HAD BEEN ANY VIOLENCE OR MEANINGFUL DISTRUBANCES WHEN OTHER
RECREATIONAL FACILITIES HAD BEEN DESEGREGATED.  IN FACT, THE ONLY
EVIDENCE IN THE RECORD WAS THAT SUCH PRIOR TRANSITIONS HAD BEEN
PEACEFUL.  (FN8)  THE CHAIRMAN OF THE MEMPHIS PARK COMMISSION INDICATED
THAT THE CITY HAD "BEEN SINGULARLY BLESSED BY THE ABSENCE OF TURMOIL UP
TO THIS TIME ON THIS RACE QUESTION"; NOTWITHSTANDING THE PRIOR
DESEGREGATION OF NUMEROUS RECREATIONAL FACILITIES, THE SAME WITNESS
COULD POINT AS EVIDENCE OF THE UNREST OR TURMOIL WHICH WOULD ASSERTEDLY
OCCUR UPON COMPLETE DESEGREGATION OF SUCH FACILITIES ONLY TO A NUMBER
OF ANONYMOUS LETTERS AND PHONE CALLS WHICH HE HAD RECEIVED.  THE
MEMPHIS CHIEF OF POLICE MENTIONED WITHOUT FURTHER DESCRIPTION SOME
"TROUBLES" AT THE TIME BUS SERVICE WAS DESEGREGATED AND REFERRED TO
THREATENED VIOLENCE IN CONNECTION WITH A "SIT-IN" DEMONSTRATION AT A
LOCAL STORE, BUT, BEYOND MAKING GENERAL PREDICTIONS, GAVE NO CONCRETE
INDICATION OF ANY INABILITY OF AUTHORITIES TO MAINTAIN THE PEACE.  THE
ONLY VIOLENCE REFERRED TO AT ANY PARK OR RECREATIONAL FACILITY OCCURRED
IN SEGREGATED PARKS AND WAS NOT THE PRODUCT OF ATTEMPTS AT
DESEGREGATION.  MOREOVER, THERE WAS NO FACTUAL EVIDENCE TO SUPPORT THE
BARE TESTIMONIAL SPECULATIONS THAT AUTHORITIES WOULD BE UNABLE TO COPE
SUCCESSFULLY WITH ANY PROBLEMS WHICH IN FACT MIGHT ARISE OR TO MEET THE
NEED FOR ADDITIONAL PROTECTION SHOULD THE OCCASION DEMAND. 

THE EXISTING AND COMMENDABLE GOODWILL BETWEEN THE RACES IN MEMPHIS,
TO WHICH BOTH THE DISTRICT COURT AND SOME OF THE WITNESSES AT TRIAL
MADE EXPRESS AND EMPHATIC REFERENCE AS IN SOME INEXPLICABLE FASHION
SUPPORTING THE NEED FOR FURTHER DELAY, CAN BEST BE PRESERVED AND
EXTENDED BY THE OBSERVANCE AND PROTECTION, NOT THE DENIAL, OF THE BASIC
CONSTITUTIONAL RIGHTS HERE ASSERTED.  THE BEST GUARANTEE OF CIVIL PEACE
IS ADHERENCE TO, AND RESPECT FOR, THE LAW. 

THE OTHER JUSTIFICATIONS FOR DELAY URGED BY THE CITY OR RELIED UPON
BY THE COURTS BELOW ARE NO MORE SUBSTANTIAL, EITHER LEGALLY OR
PRACTICALLY.  IT WAS, FOR EXAMPLE, ASSERTED THAT IMMEDIATE
DESEGREGATION OF PLAYGROUNDS AND PARKS WOULD DEPRIVE A NUMBER OF
CHILDREN - BOTH NEGRO AND WHITE - OF RECREATIONAL FACILITIES; THIS
CONTENTION WAS APPARENTLY BASED ON THE PREMISE THAT A NUMBER OF SUCH
FACILITIES WOULD HAVE TO BE CLOSED BECAUSE OF THE INADEQUACY OF THE
"PRESENT" PARK BUDGET TO PROVIDE ADDITIONAL "SUPERVISION" ASSUMED TO BE
NECESSARY TO OPERATE UNSEGREGATED PLAYGROUNDS.  AS ALREADY NOTED,
HOWEVER, THERE IS NO WARRANT IN THIS RECORD FOR ASSUMING THAT SUCH
ADDED SUPERVISION WOULD, IN FACT, BE REQUIRED, MUCH LESS THAT POLICE
AND RECREATION PERSONNEL WOULD BE UNAVAILABLE TO MEET SUCH NEEDS IF
THEY SHOULD ARISE.  (FN9)  MORE SIGNIFICANTLY, HOWEVER, IT IS OBVIOUS
THAT VINDICATION OF CONCEDED CONSTITUTIONAL RIGHTS CANNOT BE MADE
DEPENDENT UPON ANY THEORY THAT IT IS LESS EXPENSIVE TO DENY THAN TO
AFFORD THEM.  WE WILL NOT ASSUME THAT THE CITIZENS OF MEMPHIS ACCEPT
THE QUESTIONABLE PREMISE IMPLICIT IN THIS ARGUMENT OR THAT EITHER THE
RESOURCES OF THE CITY ARE INADEQUATE, OR ITS GOVERNMENT UNRESPONSIVE,
TO THE NEEDS OF ALL OF ITS CITIZENS. 

IN SUPPORT OF ITS JUDGMENT, THE DISTRICT COURT ALSO POINTED OUT THAT
THE RECREATIONAL FACILITIES AVAILABLE FOR NEGROES WERE ROUGHLY
PROPORTIONAL TO THEIR NUMBER AND THEREFORE PRESUMABLY ADEQUATE TO MEET
THEIR NEEDS.  (FN10)  WHILE THE RECORD DOES NOT CLEARLY SUPPORT THIS,
NO MORE NEED BE SAID THAN THAT, EVEN IF TRUE, IT REFLECTS AN
IMPERMISSIBLE OBEISANCE TO THE NOW THOROUGHLY DISCREDITED DOCTRINE OF
"SEPARATE BUT EQUAL."  THE SUFFICIENCY OF NEGRO FACILITIES IS BESIDE
THE POINT; IT IS THE SEGREGATION BY RACE THAT IS UNCONSTITUTIONAL. 

FINALLY, THE DISTRICT COURT DEFERRED RULING AS TO THE PROPRIETY OF
ORDERING ELIMINATION OF RACIAL BARRIERS AT ONE FACILITY, AN ART MUSEUM,
PENDING INITIATION OF, AND DECISION IN, A STATE COURT ACTION TO
CONSTRUE A RACIALLY RESTRICTIVE COVENANT CONTAINED IN THE DEED OF THE
PROPERTY TO THE CITY.  OF COURSE, THE OUTCOME OF THE STATE SUIT IS
IRRELEVANT TO WHETHER THE CITY MAY CONSTITUTIONALLY ENFORCE THE
SEGREGATION, REGARDLESS OF THE EFFECT WHICH DESEGREGATION MAY HAVE ON
ITS TITLE.  CF. PENNSYLVANIA V. BOARD OF TRUSTS, 353 U.S. 230.  IN ANY
EVENT, THERE IS NO REASON TO BELIEVE THAT THE RESTRICTIVE PROVISION
WILL BE INVOKED.  THE MUSEUM HAS ALREADY BEEN OPENED TO NEGROES ONE DAY
A WEEK WITHOUT COMPLAINT.  (FN11) 

SINCE THE CITY HAS COMPLETELY FAILED TO DEMONSTRATE ANY COMPELLING OR
CONVINCING REASON REQUIRING FURTHER DELAY IN IMPLEMENTING THE
CONSTITUTIONAL PROSCRIPTION OF SEGREGATION OF PUBLICLY OWNED OR
OPERATED RECREATIONAL FACILITIES, THERE IS NO CAUSE WHATSOEVER TO
DEPART FROM THE GENERALLY OPERATIVE AND HERE CLEARLY CONTROLLING
PRINCIPLE THAT CONSTITUTIONAL RIGHTS ARE TO BE PROMPTLY VINDICATED. 
THE CONTINUED DENIAL TO PETITIONERS OF THE USE OF CITY FACILITIES
SOLELY BECAUSE OF THEIR RACE IS WITHOUT WARRANT.  UNDER THE FACTS IN
THIS CASE, THE DISTRICT COURT'S UNDOUBTED DISCRETION IN THE FASHIONING
AND TIMING OF EQUITABLE RELIEF WAS NOT CALLED INTO PLAY; RATHER,
AFFIRMATIVE JUDICIAL ACTION WAS REQUIRED TO VINDICATE PLAIN AND PRESENT
CONSTITUTIONAL RIGHTS.  TODAY, NO LESS THAN 50 YEARS AGO, THE SOLUTION
TO THE PROBLEMS GROWING OUT OF RACE RELATIONS "CANNOT BE PROMOTED BY
DEPRIVING CITIZENS OF THEIR CONSTITUTIONAL RIGHTS AND PRIVILEGES,"
BUCHANAN V. WARLEY, SUPRA, 245 U.S., AT 80-81. 

THE JUDGMENT BELOW MUST BE AND IS REVERSED AND THE CAUSE IS REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.  REVERSED. 

FN1  THE PLAN ULTIMATELY FORMULATED, THOUGH NOT PART OF THE RECORD
HERE, WAS DESCRIBED IN ORAL ARGUMENT BEFORE THE COURT OF APPEALS.  IT
DOES NOT PROVIDE FOR COMPLETE DESEGREGATION OF ALL FACILITIES UNTIL
1971. 

FN2  SEE, E.G., DAWSON V. MAYOR AND CITY COUNCIL OF BALTIMORE, 220
F.2D 386, AFF'D, 350 U.S. 877 (BEACHES AND BATHHOUSES); NEW ORLEANS
CITY PARK IMPROVEMENT ASSN. V. DETIEGE, 252 F.2D 122, AFF'D, 358 U.S.
54 (GOLF COURSES AND OTHER FACILITIES); CITY OF ST. PETERSBURG V.
ALSUP, 238 F.2D 830 (BEACH AND SWIMMING POOLS); TATE V. DEPARTMENT OF
CONSERVATION AND DEVELOPMENT, 133 F. SUPP. 53, AFF'D, 231 F.2D 615,
CERT. DENIED, 352 U.S. 838 (PARKS); MOORHEAD V. CITY OF FORT
LAUDERDALE, 152 F. SUPP. 131, AFF'D, 248 F.2D 544 (GOLF COURSE); FAYSON
V. BEARD, 134 F. SUPP. 379 (PARKS); HOLLEY V. CITY OF PORTSMOUTH, 150
F. SUPP. 6 (GOLF COURSE); WARD V. CITY OF MIAMI, 151 F. SUPP. 593 (GOLF
COURSE); WILLIE V. HARRIS COUNTY, 202 F. SUPP. 549 (PARK).  IT IS
NOTEWORTHY THAT IN NONE OF THESE CASES WAS THE POSSIBILITY OF DELAY IN
EFFECTING DESEGREGATION EVEN CONSIDERED. 

FN3  THE FACTORS SET OUT BY THE COURT IN THE SECOND BROWN DECISION
WERE "PROBLEMS RELATED TO ADMINISTRATION, ARISING FROM THE PHYSICAL
CONDITION OF THE SCHOOL PLANT, THE SCHOOL TRANSPORTATION SYSTEM,
PERSONNEL, REVISION OF SCHOOL DISTRICTS AND ATTENDANCE AREAS INTO
COMPACT UNITS TO ACHIEVE A SYSTEM OF DETERMINING ADMISSION TO THE
PUBLIC SCHOOLS ON A NONRACIAL BASIS, AND REVISION OF LOCAL LAWS AND
REGULATIONS WHICH MAY BE NECESSARY IN SOLVING THE FOREGOING PROBLEMS." 
349 U.S., AT 300-301. 

FN4  RECOGNITION OF THE POSSIBLE NEED FOR DELAY HAS NOT EVEN BEEN
EXTENDED TO DESEGREGATION OF STATE COLLEGES OR UNIVERSITIES IN WHICH
LIKE PROBLEMS WERE NOT PRESENTED.  SEE, E.G., FLORIDA EX REL. HAWKINS
V. BOARD OF CONTROL, 350 U.S. 413, WHERE, IN REMANDING ON THE AUTHORITY
OF BROWN, THIS COURT SAID THAT "AS THIS CASE INVOLVES THE ADMISSION OF
A NEGRO TO A GRADUATE PROFESSIONAL SCHOOL, THERE IS NO REASON FOR
DELAY.  HE IS ENTITLED TO PROMPT ADMISSION UNDER THE RULES AND
REGULATIONS APPLICABLE TO OTHER DISQUALIFIED CANDIDATES."  350 U.S., AT
414.  SEE ALSO LUCY V. ADAMS, 350 U.S. 1.  SIMILARLY, BOTH BEFORE AND
AFTER BROWN, DELAY HAS NEITHER BEEN SUGGESTED NOR COUNTENANCED IN
ELIMINATING OPERATION OF RACIAL BARRIERS WITH RESPECT TO
TRANSPORTATION, E.G., BOYNTON V. VIRGINIA, 364 U.S. 454; HENDERSON V.
UNITED STATES, 339 U.S. 816; MORGAN V. VIRGINIA, 328 U.S. 373; BROWDER
V. GAYLE, 142 F. SUPP. 707, AFF'D, 352 U.S. 903; VOTING, E.G., SCHNELL
V. DAVIS, 336 U.S. 933; SMITH V. ALLWRIGHT, 321 U.S. 649; RACIAL ZONING
OF PROPERTY, E.G., CITY OF RICHMOND V. DEANS, 281 U.S. 704; BUCHANAN V.
WARLEY, 245 U.S. 60; OR EMPLOYMENT RIGHTS AND UNION REPRESENTATION,
E.G., BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768. 

FN5  THIS PRINCIPLE WAS WELL ESTABLISHED EVEN UNDER THE NOW DISCARDED
"SEPARATE BUT EQUAL" DOCTRINE.  SEE, E.G., MCLAURIN V. OKLAHOMA STATE
REGENTS FOR HIGHER EDUCATION, 339 U.S. 637, 642; SWEATT V. PAINTER, 339
U.S. 629, 635; SIPUEL V. BOARD OF REGENTS OF UNIVERSITY OF OKLAHOMA,
332 U.S. 631, 632-633.  SEE ALSO FLORIDA EX REL. HAWKINS V. BOARD OF
CONTROL, 350 U.S. 413, 414, AND NOTES 2 AND 4, SUPRA. 

FN6  THESE FIGURES, AND OTHERS REFERRED TO IN THE TEXT, APPARENTLY
REPRESENT THE TOTAL EXTENT OF PROGRESS, AS OF THE TIME OF TRIAL, TOWARD
DESEGREGATION OF RECREATIONAL FACILITIES SINCE THIS COURT'S DECISION
EIGHT YEARS AGO OUTLAWING THE PRACTICES HERE IN QUESTION.  SO FAR AS
APPEARS, NONE OF THE RELEVANT FACILITIES WERE OPEN FOR USE WITHOUT
REGARD TO RACE PRIOR TO 1955, AND, IN FACT, SEVERAL NEW PARKS HAVE BEEN
OPENED ON A SEGREGATED BASIS SINCE THAT TIME. 

FN7  IT IS NOT ENTIRELY CLEAR PRECISELY HOW MANY PROPERTIES HAVE
SINCE TRIAL ACTUALLY BEEN DESEGREGATED AND HOW MANY WERE MERELY CHANGED
FROM "WHITE-ONLY" TO "NEGRO-ONLY" USE IN LINE WITH CHANGES IN
NEIGHBORHOOD RACIAL COMPOSITION. 

FN8  NOR, CONTRARY TO PREDICTIONS, DOES IT APPEAR THAT VIOLENCE OR
DISRUPTION OF ANY KIND ENSUED UPON ELIMINATION OF RACIAL BARRIERS TO
USE OF CERTAIN ADDITIONAL FACILITIES SUBSEQUENT TO TRIAL. 

FN9  EXCEPT FOR THE MENTION OF SOME EXTRA POLICEMEN ASSIGNED TO DUTY
AT THE CITY ZOO, NO SHOWING WAS MADE EVEN THAT ADDITIONAL SUPERVISION
WAS NECESSARY OR PROVIDED AT FACILITIES WHICH HAD BEEN DESEGREGATED
PREVIOUSLY. 

FN10  APPROXIMATELY 37% OF MEMPHIS' 500,000 RESIDENTS ARE NEGROES;
CONTRARY TO THE APPARENT ASSUMPTION OF THE TRIAL COURT, THE
RECREATIONAL FACILITIES AVAILABLE TO NEGROES WERE NOT AT THE TIME OF
TRIAL ALL QUANTITATIVELY PROPORTIONAL TO THEIR NUMBER AND THEIR
COMPLETE OR PARTIAL EXCLUSION FROM CERTAIN OTHER FACILITIES EVIDENCED A
SUBSTANTIAL QUALITATIVE DIFFERENCE.  MOREOVER, THERE WAS TESTIMONY FROM
NEGRO WITNESSES THAT THEY WERE EXCLUDED FROM GOLF COURSES AND
PLAYGROUNDS MORE CONVENIENT TO THEIR PLACES OF RESIDENCE THAN OTHER
LIKE FACILITIES OPEN TO THEM. 

FN11  THE CITY ALSO ASSERTED IN THE DISTRICT COURT THAT DELAY WAS
SUPPORTED BY THE FACT THAT DESEGREGATION OF THE FAIRGROUNDS WOULD
RESULT IN A SUBSTANTIAL LOSS OF REVENUES THEREFROM AND WOULD BE UNFAIR
TO CONTRACT CONCESSIONAIRES.  THIS CLAIM APPEARS TO HAVE BEEN MOOTED BY
THE INTERVENING ELIMINATION OF RACIAL RESTRICTIONS AT THAT FACILITY,
SEEMINGLY WITHOUT DIFFICULTY. 
..END :





















YALE TRANSPORT V. UNITED STATES 373 U.S. 540 


NO. 936.  DECIDED MAY 27, 1963.  - 210 F. SUPP. 862, AFFIRMED. 


YALE TRANSPORT CORP. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















HATHAWAY V. TEXAS 373 U.S. 540 


NO. 532.  DECIDED MAY 27, 1963.  - JUDGMENT REVERSED ON REPRESENTATIONS
OF COUNSEL FOR APPELLEE. 


HATHAWAY V. TEXAS. 

APPEAL FROM THE COUNTY COURT OF COOKE COUNTY, TEXAS. 

PER CURIAM. 

THE JUDGMENT IS REVERSED ON THE REPRESENTATIONS OF COUNSEL FOR THE
APPELLEE.  WEST POINT WHOLESALE GROCERY CO. V. CITY OF OPELIKA,
ALABAMA, 354 U.S. 390. 
..END :
















MILE ROAD CORP. V. BOSTON 373 U.S. 541 


NO. 981.  DECIDED MAY 27, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  SEE 345 MASS. - , 187
N.E.2D 826. 


MILE ROAD CORP. V. CITY OF BOSTON. 

APPEAL FROM THE SUPERIOR COURT OF MASSACHUSETTS, SUFFOLK COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















FOOD FAIR STORES, INC. V. ZONING BOARD OF APPEALS OF CITY OF POMPANO
BEACH, FLORIDA 373 U.S. 541 


NO. 973.  DECIDED MAY 27, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


FOOD FAIR STORES, INC., ET AL. V. ZONING BOARD OF APPEALS OF CITY OF
POMPANO BEACH, FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















MILNE V. RHODE ISLAND 373 U.S. 542 


NO. 989.  DECIDED MAY 27, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  - R.I. - , 187 A.2D
136. 


MILNE V. RHODE ISLAND. 

APPEAL FROM THE SUPREME COURT OF RHODE ISLAND. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















GONZALEZ V. CHICAGO 373 U.S. 542 


NO. 984.  DECIDED MAY 27, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  27 ILL. 2D 128, 188
N.E.2D 489. 


GONZALEZ ET AL. V. CITY OF CHICAGO. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















COUNTS V. COUNTS 373 U.S. 543 


NO. 1058, MISC.  DECIDED MAY 27, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  358 S.W.2D 192. 


COUNTS V. COUNTS. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, THIRD SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BUFFINGTON V. WAINWRIGHT 373 U.S. 543 


NO. 706, MISC.  DECIDED MAY 27, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


BUFFINGTON V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















CEPERO V. UNITED STATES 373 U.S. 544 


NO. 1227, MISC.  DECIDED MAY 27, 1963.  - APPEAL DISMISSED.  - REPORTED
BELOW:  - F. SUPP. - .


CEPERO V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :

















SMITH V. KANSAS 373 U.S. 544 


NO. 966, MISC.  DECIDED MAY 27, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 188 KAN. 473, 363 P.2D 541. 


SMITH V. KANSAS ET AL. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CEPERO V. UNITED STATES CONGRESS 373 U.S. 545 


NO. 1024, MISC.  DECIDED MAY 27, 1963.  - APPEAL DISMISSED.  - REPORTED
BELOW:  - F. SUPP. - .


CEPERO V. UNITED STATES CONGRESS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :

















ALABAMA V. UNITED STATES 373 U.S. 545 


NO. 15, ORIGINAL.  DECIDED MAY 27, 1963.  - MOTION FOR LEAVE TO FILE
PROPOSED BILL OF COMPLAINT, AS AMENDED, DENIED. 


ALABAMA ET AL. V. UNITED STATES ET AL. 

ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE THE PROPOSED BILL OF COMPLAINT, AS
AMENDED, IS DENIED.  IN ESSENCE THE PAPERS SHOW NO MORE THAN THAT THE
PRESIDENT HAS MADE READY TO EXERCISE THE AUTHORITY CONFERRED UPON HIM
BY 10 U.S.C. SEC. 333 BY ALERTING AND STATIONING MILITARY PERSONNEL IN
THE BIRMINGHAM AREA.   SUCH PURELY PREPARATORY MEASURES AND THEIR
ALLEGED ADVERSE GENERAL EFFECTS UPON THE PLAINTIFFS AFFORD NO BASIS FOR
THE GRANTING OF ANY RELIEF. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









PETERSON V. CITY OF GREENVILLE 373 U.S. 244 


NO. 71.  ARGUED NOVEMBER 6-7, 1962.  - DECIDED MAY 20, 1963.  - 239 S.C.
298, 122 S.E.2D 826, REVERSED. 


PETITIONERS, TEN NEGROES, ENTERED A STORE IN GREENVILLE, S.C., AND
SEATED THEMSELVES AT THE LUNCH COUNTER.  THE MANAGER OF THE STORE DID
NOT REQUEST THEIR ARREST; BUT HE SENT FOR POLICE, IN WHOSE PRESENCE HE
STATED THAT THE LUNCH COUNTER WAS CLOSED AND REQUESTED EVERYONE TO
LEAVE THE AREA.  WHEN PETITIONERS FAILED TO DO SO, THEY WERE ARRESTED
AND LATER THEY WERE TRIED AND CONVICTED OF VIOLATING A STATE TRESPASS
STATUTE.  THE STORE MANAGER TESTIFIED THAT HE HAD ASKED THEM TO LEAVE
BECAUSE TO HAVE SERVED THEM WOULD HAVE BEEN "CONTRARY TO LOCAL CUSTOMS"
OF SEGREGATED SERVICE AT LUNCH COUNTERS AND WOULD HAVE VIOLATED A CITY
ORDINANCE REQUIRING SEPARATION OF THE RACES IN RESTAURANTS.  HELD:
PETITIONERS' CONVICTIONS FOR FAILURE TO LEAVE THE LUNCH COUNTER
VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, EVEN
IF THE MANAGER WOULD HAVE ACTED AS HE DID INDEPENDENTLY OF THE
EXISTENCE OF THE ORDINANCE.  PP. 245-248. 

PETERSON ET AL. V. CITY OF GREENVILLE. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE CONVICTED IN THE RECORDER'S COURT OF THE CITY OF
GREENVILLE, SOUTH CAROLINA, FOR VIOLATING THE TRESPASS STATUTE OF THAT
STATE.*  EACH WAS SENTENCED TO PAY A FINE OF $100 OF IN LIEU THEREOF TO
SERVE 30 DAYS IN JAIL.  AN APPEAL TO THE GREENVILLE COUNTY COURT WAS
DISMISSED, AND THE SUPREME COURT OF SOUTH CAROLINA AFFIRMED.  239 S.C.
298, 122 S.E.2D 826.  WE GRANTED CERTIORARI TO CONSIDER THE SUBSTANTIAL
FEDERAL QUESTIONS PRESENTED BY THE RECORD.  370 U.S. 935. 

*S.C. CODE, 1952 (CUM. SUPP. 1960), SEC. 16-388: 

"ENTERING PREMISES AFTER WARNED NOT TO DO SO OR FAILING TO LEAVE
AFTER REQUESTED. 

"ANY PERSON: 

"(1)  WHO WITHOUT LEGAL CAUSE OR GOOD EXCUSE ENTERS INTO THE DWELLING
HOUSE, PLACE OF BUSINESS OR ON THE PREMISES OF ANOTHER PERSON, AFTER
HAVING BEEN WARNED, WITHIN SIX MONTHS PRECEDING, NOT TO DO SO OR: 

"(2)  WHO, HAVING ENTERED INTO THE DWELLING HOUSE, PLACE OF BUSINES
OR ON THE PREMISES OF ANOTHER PERSON WITHOUT HAVING BEEN WARNED WITHIN
SIX MONTHS NOT TO DO SO, AND FAILS AND REFUSES, WITHOUT GOOD CAUSE OR
EXCUSE, TO LEAVE IMMEDIATELY UPON BEING ORDERED OR REQUESTED TO DO SO
BY THE PERSON IN POSSESSION, OR HIS AGENT OR REPRESENTATIVE: 

"SHALL, ON CONVICTION, BE FINED NOT MORE THAN ONE HUNDRED DOLLARS, OR
BE IMPRISONED FOR NOT MORE THAN THIRTY DAYS." 

THE 10 PETITIONERS ARE NEGRO BOYS AND GIRLS WHO, ON AUGUST 9, 1960,
ENTERED THE S.H. KRESS STORE IN GREENVILLE AND SEATED THEMSELVES AT THE
LUNCH COUNTER FOR THE PURPOSE, AS THEY TESTIFED, OF BEING SERVED.  WHEN
THE KRESS MANAGER OBSERVED THE PETITIONERS SITTING AT THE COUNTER, HE
"HAD ONE OF HIS ...  EMPLOYEES CALL THE POLICE DEPARTMENT AND TURN THE
LIGHTS OFF AND STATE THE LUNCH COUNTER WAS CLOSED."  A CAPTAIN OF
POLICE AND TWO OTHER OFFICERS RESPONDED BY PROCEEDING TO THE STORE IN A
PATROL CAR WHERE THEY WERE MET BY OTHER POLICEMEN AND TWO STATE AGENTS
WHO HAD PRECEDED THEM THERE.  IN THE PRESENCE OF THE POLICE AND THE
STATE AGENTS, THE MANAGER "ANNOUNCED THAT THE LUNCH COUNTER WAS BEING
CLOSED AND WOULD EVERYONE LEAVE" THE AREA.  THE PETITIONERS, WHO HAD
BEEN SITTING AT THE COUNTER FOR FIVE MINUTES, REMAINED SEATED AND WERE
PROMPTLY ARRESTED.  THE BOYS WERE SEARCHED, AND BOTH BOYS AND GIRLS
WERE TAKEN TO POLICE HEADQUARTERS. 

THE MANAGER OF THE STORE DID NOT REQUEST THE POLICE TO ARREST
PETITIONERS; HE ASKED THEM TO LEAVE BECAUSE INTEGRATED SERVICE WAS
"CONTRARY TO LOCAL CUSTOMS" OF SEGREGATION AT LUNCH COUNTERS AND IN
VIOLATION OF THE FOLLOWING GREENVILLE CITY ORDINANCE REQUIRING
SEPARATION OF THE RACES IN RESTAURANTS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON OWNING, MANAGING OR CONTROLLING
ANY HOTEL, RESTAURANT, CAFE, EATING HOUSE, BOARDING-HOUSE OR SIMILAR
ESTABLISHMENT TO FURNISH MEALS TO WHITE PERSONS AND COLORED PERSONS IN
THE SAME ROOM, OR AT THE SAME TABLE, OR AT THE SAME COUNTER; PROVIDED,
HOWEVER, THAT MEALS MAY BE SERVED TO WHITE PERSONS AND COLORED PERSONS
IN THE SAME ROOM WHERE SEPARATE FACILITIES ARE FURNISHED.  SEPARATE
FACILITIES SHALL BE INTERPRETED TO MEAN: 

"(A)  SEPARATING EATING UTENSILS AND SEPARATE DISHES FOR THE SERVING
OF FOOD, ALL OF WHICH SHALL BE DISTINCTLY MARKED BY SOME APPROPRIATE
COLOR SCHEME OR OTHERWISE. 

"(B)  SEPARATE TABLES, COUNTERS OR BOOTHS. 

"(C)  A DISTANCE OF AT LEAST THIRTY-FIVE FEET SHALL BE MAINTAINED
BETWEEN THE AREA WHERE WHITE AND COLORED PERSONS ARE SERVED. 

"(D)  THE AREA REFERRED TO IN SUBSECTION (C) ABOVE SHALL NOT BE
VACANT BUT SHALL BE OCCUPIED BY THE USUAL DISPLAY COUNTERS AND
MERCHANDISE FOUND IN A BUSINESS CONCERN OF A SIMILAR NATURE. 

"(E)  A SEPARATE FACILITY SHALL BE MAINTAINED AND USED FOR THE
CLEANING OF EATING UTENSILS AND DISHES FURNISHED THE TWO RACES."  CODE
OF GREENVILLE, 1953, AS AMENDED IN 1958, SEC. 31-8. 

THE MANAGER AND THE POLICE CONCEDED THAT THE PETITIONERS WERE CLEAN,
WELL DRESSED, UNOFFENSIVE IN CONDUCT, AND THAT THEY SAT QUIETLY AT THE
COUNTER WHICH WAS DESIGNED TO ACCOMMODATE 59 PERSONS.  THE MANAGER
DESCRIBED HIS ESTABLISHMENT AS A NATIONAL CHAIN STORE OF 15 OR 20
DEPARTMENTS, SELLING OVER 10,000 ITEMS.  HE STATED THAT THE GENERAL
PUBLIC WAS INVITED TO DO BUSINESS AT THE STORE AND THAT THE PATRONAGE
OF NEGROES WAS SOLICITED IN ALL DEPARTMENTS OF THE STORE OTHER THAN THE
LUNCH COUNTER. 

PETITIONERS MAINTAIN THAT SOUTH CAROLINA HAS DENIED THEM RIGHTS OF
FREE SPEECH, BOTH BECAUSE THEIR ACTIVITY WAS PROTECTED BY THE FIRST AND
FOURTEENTH AMENDMENTS AND BECAUSE THE TRESPASS STATUTE DID NOT REQUIRE
A SHOWING THAT THE KRESS MANAGER GAVE THEM NOTICE OF HIS AUTHORITY WHEN
HE ASKED THEM TO LEAVE.  PETITIONERS ALSO ASSERT THAT THEY HAVE BEEN
DEPRIVED OF THE EQUAL PROTECTION OF THE LAWS SECURED TO THEM AGAINST
STATE ACTION BY THE FOURTEENTH AMENDMENT.  WE NEED DECIDE ONLY THE LAST
OF THE QUESTIONS THUS RAISED. 

THE EVIDENCE IN THIS CASE ESTABLISHES BEYOND DOUBT THAT THE KRESS
MANAGEMENT'S DECISION TO EXCLUDE PETITIONERS FROM THE LUNCH COUNTER WAS
MADE BECAUSE THEY WERE NEGROES.  IT CANNOT BE DISPUTED THAT UNDER OUR
DECISIONS "PRIVATE CONDUCT ABRIDGING INDIVIDUAL RIGHTS DOES NO VIOLENCE
TO THE EQUAL PROTECTION CLAUSE UNLESS TO SOME SIGNIFICANT EXTENT THE
STATE IN ANY OF ITS MANIFESTATIONS HAS BEEN FOUND TO HAVE BECOME
INVOLVED IN IT."  BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715,
722; TURNER V. CITY OF MEMPHIS, 369 U.S. 350. 

IT CANNOT BE DENIED THAT HERE THE CITY OF GREENVILLE, AN AGENCY OF
THE STATE, HAS PROVIDED BY ITS ORDINANCE THAT THE DECISION AS TO
WHETHER A RESTAURANT FACILITY IS TO BE OPERATED ON A DESEGREGATED BASIS
IS TO BE RESERVED TO IT.  WHEN THE STATE HAS COMMANDED A PARTICULAR
RESULT, IT HAS SAVED TO ITSELF THE POWER TO DETERMINE THAT RESULT AND
THEREBY "TO A SIGNIFICANT EXTENT" HAS "BECOME INVOLVED" IN IT, AND, IN
FACT, HAS REMOVED THAT DECISION FROM THE SPHERE OF PRIVATE CHOICE.  IT
HAS THUS EFFECTIVELY DETERMINED THAT A PERSON OWNING, MANAGING OR
CONTROLLING AN EATING PLACE IS LEFT WITH NO CHOICE OF HIS OWN BUT MUST
SEGREGATE HIS WHITE AND NEGRO PATRONS.  THE KRESS MANAGEMENT, IN
DECIDING TO EXCLUDE NEGROES, DID PRECISELY WHAT THE CITY LAW REQUIRED. 

CONSEQUENTLY THESE CONVICTIONS CANNOT STAND, EVEN ASSUMING, AS
RESPONDENT CONTENDS, THAT THE MANAGER WOULD HAVE ACTED AS HE DID
INDEPENDENTLY OF THE EXISTENCE OF THE ORDINANCE.  THE STATE WILL NOT BE
HEARD TO MAKE THIS CONTENTION IN SUPPORT OF THE CONVICTIONS.  FOR THE
CONVICTIONS HAD THE EFFECT, WHICH THE STATE CANNOT DENY, OF ENFORCING
THE ORDINANCE PASSED BY THE CITY OF GREENVILLE, THE AGENCY OF THE
STATE.  WHEN A STATE AGENCY PASSES A LAW COMPELLING PERSONS TO
DISCRIMINATE AGAINST OTHER PERSONS BECAUSE OF RACE, AND THE STATE'S
CRIMINAL PROCESSES ARE EMPLOYED IN A WAY WHICH ENFORCES THE
DISCRIMINATION MANDATED BY THAT LAW, SUCH A PALPABLE VIOLATION OF THE
FOURTEENTH AMENDMENT CANNOT BE SAVED BY ATTEMPTING TO SEPARATE THE
MENTAL URGES OF THE DISCRIMINATORS.  REVERSED. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT IN NO. 71, AND
DISSENTING IN WHOLE OR IN PART IN NOS. 58, 66, 11, AND 67.*

*NO. 58 IS LOMBARD ET AL. V. LOUISIANA, POST, P. 267; NO. 66 IS GOBER
ET AL. V. CITY OF BIRMINGHAM, POST, P. 374; NO. 11 IS AVENT ET AL. V.
NORTH CAROLINA, POST, P. 375, AND NO. 67.  IS SHUTTLESWORTH ET AL. V.
CITY OF BIRMINGHAM, POST, P. 262. 

THESE FIVE RACIAL DISCRIMINATION CASES, AND NO. 68, WRIGHT V. GEORGIA
(POST, P. 284) IN WHICH I JOIN THE OPINION OF THE COURT, WERE ARGUED
TOGETHER.  FOUR OF THEM ARISE OUT OF "SIT-IN" DEMONSTRATIONS IN THE
SOUTH AND INVOLVE CONVICTIONS OF NEGRO STUDENTS (FN1) FOR VIOLATIONS OF
CRIMINAL TRESPASS LAWS, OR SIMILAR STATUTES, IN SOUTH CAROLINA
(PETERSON, ANTE, P. 244), LOUISIANA (LOMBARD, POST, P. 267), ALABAMA
(GOBER, POST, P. 374), AND NORTH CAROLINA (AVENT, POST, P. 375)
RESPECTIVELY.  EACH OF THESE CONVICTIONS RESTS ON STATE COURT FINDINGS,
WHICH IN MY OPINION ARE SUPPORTED BY EVIDENCE, THAT THE SEVERAL
PETITIONERS HAD REFUSED TO MOVE FROM "WHITE" LUNCH COUNTERS SITUATED ON
THE PREMISES OF PRIVATELY OWNED DEPARTMENT STORES AFTER HAVING BEEN
DULY REQUESTED TO DO SO BY THE MANAGEMENT.  THE OTHER CASE INVOLVES THE
CONVICTION OF TWO NEGRO MINISTERS FOR INCITING, AIDING, OR ABETTING
CRIMINAL TRESPASSES IN ALABAMA (SHUTTLESWORTH, POST, P. 262). 

IN DECIDING THESE CASES THE COURT DOES NOT QUESTION THE LONG
ESTABLISHED RULE THAT THE FOURTEENTH AMENMDENT REACHES ONLY STATE
ACTION.  CIVIL RIGHTS CASES, 109 U.S. 3.  AND IT DOES NOT SUGGEST THAT
SUCH ACTION, DENYING EQUAL PROTECTION, MAY BE FOUND IN THE MERE
ENFORCEMENT OF TRESPASS LAWS IN RELATION TO PRIVATE BUSINESS
ESTABLISHMENTS FROM WHICH THE MANAGEMENT, OF ITS OWN FREE WILL, HAS
CHOSEN TO EXCLUDE PERSONS OF THE NEGRO RACE.  (FN2)  JUDICIAL
ENFORCEMENT IS OF COURSE STATE ACTION, BUT THIS IS NOT THE END OF THE
INQUIRY.  THE ULTIMATE SUBSTANTIVE QUESTION IS WHETHER THERE HAS BEEN
"STATE ACTION OF A PARTICULAR CHARACTER" (CIVIL RIGHTS CASES, SUPRA, AT
11) - WHETHER THE CHARACTER OF THE STATE'S INVOLVEMENT IN AN ARBITRARY
DISCRIMINATION IS SUCH THAT IT SHOULD BE HELD RESPONSIBLE FOR THE
DISCRIMINATION. 

THIS LIMITATION ON THE SCOPE OF THE PROHIBITIONS OF THE FOURTEENTH
AMENDMENT SERVES SEVERAL VITAL FUNCTIONS IN OUR SYSTEM.  UNDERLYING THE
CASES INVOLVING AN ALLEGED DENIAL OF EQUAL PROTECTION BY OSTENSIBLY
PRIVATE ACTION IS A CLASH OF COMPETING CONSTITUTIONAL CLAIMS OF A HIGH
ORDER:  LIBERTY AND EQUALITY.  FREEDOM OF THE INDIVIDUAL TO CHOOSE HIS
ASSOCIATES OR HIS NEIGHBORS, TO USE AND DISPOSE OF HIS PROPERTY AS HE
SEES FIT, TO BE IRRATIONAL, ARBITRARY, CAPRICIOUS, EVEN UNJUST IN HIS
PERSONAL RELATIONS ARE THINGS ALL ENTITLED TO A LARGE MEASURE OF
PROTECTION FROM GOVERNMENTAL INTERFERENCE.  THIS LIBERTY WOULD BE
OVERRIDDEN, IN THE NAME OF EQUALITY, IF THE STRICTURES OF THE AMENDMENT
WERE APPLIED TO GOVERNMENTAL AND PRIVATE ACTION WITHOUT DISTINCTION. 
ALSO INHERENT IN THE CONCEPT OF STATE ACTION ARE VALUES OF FEDERALISM,
A RECOGNITION THAT THERE ARE AREAS OF PRIVATE RIGHTS UPON WHICH FEDERAL
POWER SHOULD NOT LAY A HEAVY HAND AND WHICH SHOULD PROPERLY BE LEFT TO
THE MORE PRECISE INSTRUMENTS OF LOCAL AUTHORITY. 

MY DIFFERENCES WITH THE COURT RELATE PRIMARILY TO ITS TREATMENT OF
THE STATE ACTION ISSUE AND TO THE BROAD STRIDES WITH WHICH IT HAS
PROCEEDED IN SETTING ASIDE THE CONVICTIONS IN ALL OF THESE CASES.  IN
MY OPINION THE CASES CALL FOR DISCRETE TREATMENT AND RESULTS. 

I.

                          THE PETERSON CASE (NO. 71). 

IN THIS CASE, INVOLVING THE S.H. KRESS STORE IN GREENVILLE, SOUTH
CAROLINA, THE COURT FINDS STATE ACTION IN VIOLATION OF THE FOURTEENTH
AMENDMENT IN THE CIRCUMSTANCE THAT GREENVILLE STILL HAS ON ITS BOOKS AN
ORDINANCE (ANTE, P. 246) REQUIRING SEGREGATED FACILITIES FOR COLORED
AND WHITE PERSONS IN PUBLIC EATING PLACES.  IT HOLDS THAT THE MERE
EXISTENCE OF THE ORDINANCE RENDERED THE STATE'S ENFORCEMENT OF ITS
TRESPASS LAWS UNCONSTITUTIONAL, QUITE IRRESPECTIVE OF WHETHER THE KRESS
DECISION TO EXCLUDE THESE PETITIONERS FROM THE WHITE LUNCH COUNTER WAS
ACTUALLY INFLUENCED BY THE ORDINANCE.  THE RATIONALE IS THAT THE STATE,
HAVING COMPELLED RESTAURANTEURS TO SEGREGATE THEIR ESTABLISHMENTS
THROUGH THIS CITY ORDINANCE, CANNOT BE HEARD TO SAY, IN ENFORCING ITS
TRESPASS STATUTE, THAT KRESS' DECISION TO SEGREGATE WAS IN FACT BUT THE
PRODUCT OF ITS OWN UNTRAMMELED CHOICE.  THIS IS SAID TO FOLLOW BECAUSE
THE ORDINANCE REMOVES THE OPERATION OF SEGREGATED OR DESEGREGATED
EATING FACILITIES "FROM THE SPHERE OF PRIVATE CHOICE" AND BECAUSE "THE
STATE'S CRIMINAL PROCESSES ARE EMPLOYED IN A WAY WHICH ENFORCES" THE
ORDINANCE.  ANTE, P. 248. 

THIS IS AN ALLURING BUT, IN MY VIEW, A FALLACIOUS PROPOSITION. 
CLEARLY KRESS MIGHT HAVE PREFERRED FOR REASONS ENTIRELY OF ITS OWN NOT
TO SERVE MEALS TO NEGROES ALONG WITH WHITES, AND THE DISPOSITIVE
QUESTION ON THE ISSUE OF STATE ACTION THUS BECOMES WHETHER SUCH WAS THE
CASE, OR WHETHER THE ORDINANCE PLAYED SOME PART IN THE KRESS DECISION
TO SEGREGATE.  THAT IS A QUESTION OF FACT. 

PRELIMINARILY, I DO NOT UNDERSTAND THE COURT TO SUGGEST THAT THE
ORDINANCE'S REMOVAL OF THE RIGHT TO OPERATE A SEGREGATED RESTAURANT
"FROM THE SPHERE OF PRIVATE CHOICE" RENDERS THE PRIVATE RESTAURANT
OWNER THE AGENT OF THE STATE, SUCH THAT HIS OPERATION OF A SEGREGATED
FACILITY IPSO FACTO BECOMES THE ACT OF THE STATE.  SUCH A THEORY MIGHT
WELL CARRY THE CONSEQUENCE THAT A PRIVATE PERSON SO OPERATING HIS
RESTAURANT WOULD BE SUBJECT TO A CIVIL RIGHTS ACT SUIT ON THE PART OF
AN EXCLUDED NEGRO FOR UNCONSTITUTIONAL ACTION TAKEN UNDER COLOR OF
STATE LAW (CF. MONROE V. PAPE, 365 U.S. 167) - AN INCONGRUOUS RESULT
WHICH I WOULD BE LOATH TO INFER THAT THE COURT INTENDS.  KRESS IS OF
COURSE PURELY PRIVATE ENTERPRISE.  IT IS IN NO SENSE "THE REPOSITORY OF
STATE POWER," HOME TEL.  & TEL. CO. V. LOS ANGELES, 227 U.S. 278, 286,
AND THIS SEGREGATION ORDINANCE NO MORE MAKES KRESS THE AGENT OR
DELEGATE OF THE STATE THAN WOULD ANY OTHER PROHIBITORY MEASURE
AFFECTING THE CONDUCT OF ITS BUSINESS.  THE COURT DOES NOT INTIMATE
ANYTHING TO THE CONTRARY.    THE MAJORITY'S APPROACH TO THE STATE
ACTION ISSUE IS IN MY OPINION QUITE UNTENABLE.  ALTHOUGH THE RIGHT OF A
PRIVATE RESTAURATEUR TO OPERATE, IF HE PLEASES, ON A SEGREGATED BASIS
IS OSTENSIBLY LEFT UNTOUCHED, THE COURT IN TRUTH EFFECTUALLY DEPRIVES
HIM OF THAT RIGHT IN ANY STATE WHERE A LAW LIKE THIS GREENVILLE
ORDINANCE CONTINUES TO EXIST.  FOR A CHOICE THAT CAN BE ENFORCED ONLY
BE RESORT TO "SELF-HELP" HAS CERTAINLY BECOME A GREATLY DILUTED RIGHT,
IF IT HAS NOT INDEED BEEN TOTALLY DESTROYED. 

AN INDIVIDUAL'S RIGHT TO RESTRICT THE USE OF HIS PROPERTY, HOWEVER
UNREGENERATE A PARTICULAR EXERCISE OF THAT RIGHT MAY BE THOUGHT, LIES
BEYOND THE REACH OF THE FOURTEENTH AMENDMENT.  THE DILUTION OR VIRTUAL
ELIMINATION OF THAT RIGHT CANNOT WELL BE JUSTIFIED EITHER ON THE
PREMISE THAT IT WILL HASTEN FORMAL REPEAL OF OUTWORN SEGREGATION LAWS
OR ON THE GROUND THAT IT WILL FACILITATE PROOF OF STATE ACTION IN CASES
OF THIS KIND.  THOSE LAWS HAVE ALREADY FOUND THEIR JUST CONSTITUTIONAL
DESERTS IN THE DECISIONS OF THIS COURT, AND IN MANY COMMUNITIES IN
WHICH RACIAL DISCRIMINATION IS NO LONGER A UNIVERSAL OR WIDESPREAD
PRACTICE SUCH LAWS MAY HAVE A PURELY FORMAL EXISTENCE AND MAY INDEED BE
TOTALLY UNKNOWN.  OF COURSE THIS IS NOT TO SAY THAT THEIR EXISTENCE ON
THE BOOKS MAY NEVER PLAY A SIGNIFICANT AND EVEN DECISIVE ROLE IN
PRIVATE DECISION MAKING.  BUT THE QUESTION IN EACH CASE, IF THE RIGHT
OF THE INDIVIDUAL TO MAKE HIS OWN DECISIONS IS TO REMAIN VIABLE, MUST
BE:  WAS THE DISCRIMINATORY EXCLUSION IN FACT INFLUENCED BY THE LAW? 
CF. TRUAX V. RAICH, 239 U.S. 33.  (FN3)  THE INEXORABLE RULE WHICH THE
COURT LAYS DOWN REFLECTS INSUFFICIENT RECKONING WITH THE COURSE OF
HISTORY. 

IT IS SUGGESTED THAT REQUIRING PROOF OF THE EFFECT OF SUCH LAWS IN
INDIVIDUAL INSTANCES WOULD INVOLVE "ATTEMPTING TO SEPARATE THE MENTAL
URGES OF THE DISCRIMINATORS" (ANTE, P. 248).  BUT PROOF OF STATE OF
MIND IS NOT A NOVEL CONCEPT IN THE LAW OF EVIDENCE, SEE 2 WIGMORE,
EVIDENCE (3D ED. 1940), SECS. 385-393, AND SUCH A REQUIREMENT PRESENTS
NO SPECIAL BARRIERS IN THIS SITUATION.  THE MERE SHOWING OF SUCH AN
ORDINANCE WOULD, IN MY JUDGMENT, MAKE OUT A PRIMA FACIE CASE OF INVALID
STATE ACTION, CASTING ON THE STATE THE BURDEN OF PROVING THAT THE
EXCLUSION WAS IN FACT THE PRODUCT SOLELY OF PRIVATE CHOICE.  IN
CIRCUMSTANCES LIKE THESE THAT BURDEN IS INDEED A HEAVY ONE.  THIS IS
THE RULE WHICH, IN MY OPINION, EVENHANDED CONSTITUTIONAL DOCTRINE AND
RECOGNIZED EVIDENTIARY RULES DICTATE.  ITS APPLICATION HERE CALLS FOR
REVERSAL OF THESE CONVICTIONS. 

AT THE TRIAL EXISTENCE OF THE GREENVILLE SEGREGATION ORDINANCE WAS
SHOWN AND THE CITY ADDUCED NO REBUTTING EVIDENCE INDICATING THAT THE
KRESS MANAGER'S DECISION TO EXCLUDE THESE PETITIONERS FROM THE WHITE
LUNCH COUNTER WAS WHOLLY THE PRODUCT OF PRIVATE CHOICE.  ALL DOUBT ON
THAT SCORE IS INDEED REMOVED BY THE STORE MANAGER'S OWN TESTIMONY. 
ASKED FOR THE REASONS FOR HIS ACTION, HE SAID:  "IT'S CONTRARY TO LOCAL
CUSTOMS AND IT'S ALSO THE ORDINANCE THAT HAS BEEN DISCUSSED" (QUITE
EVIDENTLY REFERRING TO THE SEGREGATION ORDINANCE).  THIS SUFFICES TO
ESTABLISH STATE ACTION, AND LEADS ME TO JOIN IN THE JUDGMENT OF THE
COURT. 

        II.

                           THE LOMBARD CASE (NO. 58). 

IN THIS CASE, INVOLVING "SIT-INS" AT THE MCCRORY STORE IN NEW
ORLEANS, LOUISIANA, THE COURT CARRIES ITS STATE ACTION RULE A STEP
FURTHER.  NEITHER LOUISIANA NOR NEW ORLEANS HAS ANY STATUTE OR
ORDINANCE REQUIRING SEGREGATED EATING FACILITIES.  IN THIS INSTANCE
STATE ACTION IS FOUND IN THE PUBLIC ANNOUNCEMENTS OF THE SUPERINTENDENT
OF POLICE AND THE MAYOR OF NEW ORLEANS, SET FORTH IN THE COURT'S
OPINION (POST, P. 267), WHICH WERE ISSUED SHORTLY AFTER "SIT-IN"
DEMONSTRATIONS HAD FIRST BEGUN IN THE CITY.  TREATING THESE
ANNOUNCEMENTS AS THE EQUIVALENT OF A CITY ORDINANCE, THE COURT HOLDS
THAT THEY SERVED TO MAKE THE STATE'S EMPLOYMENT OF ITS "TRESPASS"
STATUTE AGAINST THESE PETITIONERS UNCONSTITUTIONAL, AGAIN WITHOUT
REGARD TO WHETHER OR NOT THEIR EXCLUSION BY MCCRORY WAS IN FACT
INFLUENCED IN ANY WAY BY THESE ANNOUNCEMENTS. 

IN ADDITION TO WHAT HAS ALREADY BEEN SAID IN CRITICISM OF THE
PETERSON RULING, THERE ARE TWO FURTHER FACTORS THAT MAKE THE COURT'S
THEORY EVEN MORE UNTENABLE IN THIS CASE. 

1.  THE ANNOUNCEMENTS OF THE POLICE SUPERINTENDENT AND THE MAYOR
CANNOT WELL BE COMPARED WITH A CITY ORDINANCE COMMANDING SEGREGATED
EATING FACILITIES.  NEITHER ANNOUNCEMENT WAS ADDRESSED TO RESTAURATEURS
IN PARTICULAR, BUT TO THE CITIZENRY GENERALLY.  THEY DID NOT PRESS
PRIVATE PROPRIETORS TO SEGREGATE EATING FACILITIES; RATHER THEY IN
EFFECT SIMPLY URGED NEGROES AND WHITES NOT TO INSIST ON NONSEGREGATED
SERVICE IN PLACES WHERE SEGREGATED SERVICE OBTAINED.  IN SHORT, SO FAR
AS THIS RECORD SHOWS, HAD THE MCCRORY STORE CHOSEN TO SERVE THESE
PETITIONERS ALONG WITH WHITES IT COULD HAVE DONE SO FREE OF ANY
SANCTIONS OR OFFICIAL CONSTRAINT. 

2.  THE COURT SEEMS TO TAKE THE TWO ANNOUNCEMENTS AS AN ATTEMPT ON
THE PART OF THE POLICE SUPERINTENDENT AND THE MAYOR TO PERPETUATE
SEGREGATION IN NEW ORLEANS.  I THINK THEY ARE MORE PROPERLY READ AS AN
EFFORT BY THESE TWO OFFICIALS TO PRESERVE THE PEACE IN WHAT THEY MIGHT
REASONABLY HAVE REGARDED AS A HIGHLY CHARGED ATMOSPHERE.  THAT SEEMS TO
ME THE FAIR TENOR OF THEIR EXHORTATIONS. 

IF THERE WERE NOTHING MORE TO THIS CASE, I WOULD VOTE TO AFFIRM THESE
CONVICTIONS FOR WANT OF A SUFFICIENT SHOWING OF STATE ACTION DENYING
EQUAL PROTECTION.  THERE IS, HOWEVER, SOME EVIDENCE IN THE RECORD WHICH
MIGHT INDICATE ADVANCE COLLABORATION BETWEEN THE POLICE AND MCCRORY
WITH RESPECT TO THESE EPISODES.  THE TRIAL JUDGE REFUSED TO PERMIT
DEFENSE COUNSEL TO PURSUE INQUIRY ALONG THIS LINE, ALTHOUGH COUNSEL HAD
MADE IT PERFECTLY CLEAR THAT HIS PURPOSE WAS TO ESTABLISH OFFICIAL
PARTICIPATION IN THE EXCLUSION OF HIS CLIENTS BY THE MCCRORY STORE.  I
THINK THE SHUTTING OFF OF THIS LINE OF INQUIRY WAS PREJUDICIAL ERROR. 

FOR THIS REASON I WOULD VACATE THE JUDGMENT OF THE STATE COURT AND
REMAND THE CASE FOR A NEW TRIAL SO THAT THE ISSUE OF STATE ACTION MAY
BE PROPERLY EXPLORED. 

III. 

                            THE GOBER CASE (NO. 66). 

THIS CASE CONCERNS "SIT-INS" AT FIVE DIFFERENT DEPARTMENT STORES IN
BIRMINGHAM, ALABAMA.  BIRMINGHAM HAS AN ORDINANCE REQUIRING SEGREGATED
FACILITIES IN PUBLIC EATING PLACES.  (FN4) 

IT IS FIRST NECESSARY TO CONSIDER WHETHER THIS ORDINANCE IS PROPERLY
BEFORE US, A QUESTION NOT DEALT WITH IN THIS COURT'S PER CURIAM
REVERSAL.  THE ALABAMA COURT OF APPEALS REFUSED TO CONSIDER THE EFFECT
OF THE ORDINANCE ON PETITIONERS' CLAIM OF DENIAL OF EQUAL PROTECTION,
STATING THAT "THERE IS NO QUESTION PRESENTED IN THE RECORD BEFORE US,
BY THE PLEADING, OF ANY STATUTE OR ORDINANCE REQUIRING THE SEPARATION
OF THE RACES IN RESTAURANTS.  THE PROSECUTION WAS FOR A CRIMINAL
TRESPASS ON PRIVATE PROPERTY."  41 ALA. APP., AT 317, 133 SO. 2D, AT
701. 

THIS, ON THE ONE HAND, COULD BE TAKEN TO MEAN THAT THE BIRMINGHAM
ORDINANCE WAS NOT PROPERLY BEFORE THE COURT OF APPEALS BECAUSE IT HAD
NOT BEEN SPECIALLY PLEADED AS A DEFENSE.  WE WOULD THEN BE FACED WITH
THE NECESSITY OF DECIDING WHETHER SUCH A STATE GROUND IS ADEQUATE TO
PRECLUDE OUR CONSIDERATION OF THE SIGNIFICANCE OF THE ORDINANCE.  IN
SUPPORT OF THE VIEW THAT SUCH A GROUND EXISTS RESPONDENT REFERS US TO
ALABAMA CODE (1958), TIT. 7, SEC. 225, REQUIRING MATTERS OF DEFENSE TO
BE PLEADED SPECIALLY IN A CIVIL CASE, (FN5) AND TO THE STATEMENT OF THE
COURT OF APPEALS THAT "THIS BEING AN APPEAL FROM A CONVICTION FOR
VIOLATING A CITY ORDINANCE, IT IS QUASI CRIMINAL IN NATURE, AND SUBJECT
TO RULES GOVERNING CIVIL APPEALS," 41 ALA. APP., AT 315, 133 SO. 2D, AT
699. 

ON THE OTHER HAND, IN VIEW OF THE LAST SENTENCE IN THE COURT OF
APPEALS' STATEMENT - "THE PROSECUTION WAS FOR A CRIMINAL TRESPASS ON
PRIVATE PROPERTY" - IT MAY BE THAT THE COURT SIMPLY SHARED THE APPARENT
MISAPPREHENSION OF THE TRIAL JUDGE AS TO THE MATERIALITY OF THE
SEGREGATION ORDINANCE IN A PROSECUTION LAID ONLY UNDER THE TRESPASS
STATUTE.  (FN6)  THIS VIEW OF THE MATTER IS LENT SOME COLOR BY THE
CIRCUMSTANCE THAT, ALTHOUGH ALABAMA CODE (1958), TIT. 7, SEC. 429(1),
RENDERED THE ORDINANCE JUDICIALLY NOTICEABLE, THE COURT OF APPEALS'
OPINION DOES NOT ADDRESS ITSELF AT ALL TO THE QUESTION WHETHER THE
ORDINANCE, BEARING AS IT DID ON THE VITAL ISSUE OF STATE ACTION IN THIS
TRESPASS PROSECUTION, WAS IN TRUTH A "MATTER OF DEFENSE" WITHIN THE
MEANING OF SEC. 225.  (FN7) 

IN THIS MUDDY POSTURE OF THINGS IT IS IMPOSSIBLE TO SAY WHETHER OR
NOT THESE JUDGMENTS ARE SUPPORTABLE ON AN ADEQUATE AND INDEPENDENT
STATE GROUND.  BECAUSE OF THIS, AND IN LIGHT OF THE VIEWS I HAVE
EXPRESSED IN THE PETERSON CASE (SUPRA, PP. 250-253), TWO THINGS ARE
CALLED FOR.  FIRST, THE PARTIES SHOULD BE AFFORDED AN OPPORTUNITY TO
OBTAIN FROM THE ALABAMA COURT OF APPEALS A CLARIFICATION OF ITS
PROCEDURAL HOLDING RESPECTING THE BIRMINGHAM SEGREGATION ORDINANCE.  IF
THE COURT OF APPEALS HOLDS THAT IT IS PROCEDURALLY FORECLOSED FROM
CONSIDERING THE ORDINANCE, THE ADEQUACY OF SUCH A STATE GROUND WOULD
THEN OF COURSE BE A QUESTION FOR THIS COURT.  SECOND, IF THE COURT OF
APPEALS HOLDS THAT IT IS NOT FORECLOSED FROM CONSIDERING THE ORDINANCE,
THERE SHOULD THEN BE A NEW TRIAL SO THAT THE BEARING OF THE ORDINANCE
ON THE ISSUE OF STATE ACTION MAY BE FULLY EXPLORED.  TO THESE ENDS I
WOULD VACATE THE JUDGMENTS BELOW AND REMAND THE CASE TO THE ALABAMA
COURT OF APPEALS. 

                                        IV.

                        THE AVENT CASE (NO. 11). 

IN THIS CASE IT TURNS OUT THAT THE CITY OF DURHAM, NORTH CAROLINA,
WHERE THESE "SIT-INS" TOOK PLACE, ALSO HAD A RESTAURANT SEGREGATION
ORDINANCE.  (FN8)  IN AFFIRMING THESE CONVICTIONS THE NORTH CAROLINA
SUPREME COURT EVIDENTLY PROCEEDED, HOWEVER, ON THE ERRONEOUS ASSUMPTION
THAT NO SUCH ORDINANCE EXISTED.  253 N.C. 580, 118 S.E.2D 47. 

IN THESE CIRCUMSTANCES I AGREE WITH THE COURT THAT THE CASE SHOULD BE
RETURNED TO THE STATE SUPREME COURT FOR FURTHER CONSIDERATION.  SEE
PATTERSON V. ALABAMA, 294 U.S. 600.  BUT DISAGREEING AS I DO WITH THE
PREMISES ON WHICH THE CASE WILL GO BACK UNDER THE MAJORITY'S OPINION IN
PETERSON, I MUST TO THAT EXTENT DISSENT FROM THE OPINION AND JUDGMENT
OF THE COURT. 

                                        V.

                  THE SHUTTLESWORTH CASE (NO. 67). 

THIS LAST OF THESE CASES CONCERNS THE ALABAMA CONVICTIONS OF TWO
NEGRO CLERGYMEN, SHUTTLESWORTH AND BILLUPS, FOR INCITING, AIDING, OR
ABETTING ALLEGED VIOLATIONS OF THE CRIMINAL TRESPASS ORDINANCE OF THE
CITY OF BIRMINGHAM. 

ON THE PREMISE THAT THESE TWO PETITIONERS WERE CHARGED WITH INCITING,
AIDING, OR ABETTING ONLY THE "SIT-INS" INVOLVED IN THE GOBER CASE
(POST, P. 374), THE COURT, RELYING ON THE UNASSAILABLE PROPOSITION THAT
"THERE CAN BE NO CONVICTION FOR AIDING AND ABETTING SOMEONE TO DO AN
INNOCENT ACT" (POST, P. 265), HOLDS THAT THESE CONVICTIONS MUST FALL IN
CONSEQUENCE OF ITS REVERSAL OF THOSE IN THE GOBER CASE.  THE DIFFICULTY
WITH THIS HOLDING IS THAT IT IS BASED ON AN ERRONEOUS PREMISE. 
SHUTTLESWORTH AND BILLUPS WERE NOT CHARGED MERELY WITH INCITING THE
GOBER "SIT-INS" BUT GENERALLY WITH INCITING VIOLATIONS OF THE
BIRMINGHAM TRESPASS ORDINANCE.  AND I DO NOT THINK IT CAN BE SAID THAT
THE RECORD LACKS EVIDENCE OF INCITEMENT OF "SIT-INS" OTHER THAN THOSE
INVOLVED IN GOBER.  (FN9)  HENCE THE COURT'S REVERSAL IN GOBER CANNOT
WELL SERVE AS THE GROUND FOR REVERSAL HERE. 

THERE ARE, HOWEVER, OTHER REASONS WHY, IN MY OPINION, THESE
CONVICTIONS CANNOT STAND.  AS TO BILLUPS, THE RECORD SHOWS THAT HE
BROUGHT ONE OF THE STUDENTS TO SHUTTLESWORTH'S HOME AND REMAINED THERE
WHILE SHUTTLESWORTH TALKED.  BUT THERE IS NOTHING TO INDICATE BILLUPS'
PURPOSE IN BRINGING THE STUDENT, WHAT HE SAID TO HIM, OR EVEN WHETHER
HE APPROVED OR DISAPPROVED OF WHAT SHUTTLESWORTH URGED THE STUDENTS TO
DO. A CONVICTION SO LACKING IN EVIDENCE TO SUPPORT THE OFFENSE CHARGED
MUST FALL UNDER THE FOURTEENTH AMENDMENT.  THOMPSON V. LOUISVILLE, 362
U.S. 199. 

ON THIS SCORE THE SITUATION IS DIFFERENT WITH RESPECT TO
SHUTTLESWORTH.  GIVEN (1) THE THEN CURRENT PREVALENCE OF "SIT-IN"
DEMONSTRATIONS THROUGHOUT THE SOUTH, (FN10) (2) THE COMMONLY UNDERSTOOD
USE OF THE PHRASE "SIT-IN" OR "SIT-DOWN" TO DESIGNATE A FORM OF PROTEST
WHICH TYPICALLY RESULTED IN ARREST AND CONVICTION FOR CRIMINAL TRESPASS
OR OTHER SIMILAR OFFENSE, AND (3) THE EVIDENCE AS TO SHUTTLESWORTH'S
CALLING FOR "SIT-DOWN" VOLUNTEERS AND HIS STATEMENT THAT HE WOULD GET
ANY WHO VOLUNTEERED "OUT OF JAIL," I CANNOT SAY THAT IT WAS
CONSTITUTIONALLY IMPERMISSIBLE FOR THE STATE TO FIND THAT SHUTTLESWORTH
HAD URGED THE VOLUNTEERS TO DEMONSTRATE ON PRIVATELY OWNED PERMISES
DESPITE ANY OBJECTIONS BY THEIR OWNERS, AND THUS TO ENGAGE IN CRIMINAL
TRESPASS. 

NEVERTHELESS THIS DOES NOT END THE MATTER.  THE TRESPASSES WHICH
SHUTTLESWORTH WAS CONVICTED OF INCITING MAY OR MAY NOT HAVE INVOLVED
DENIALS OF EQUAL PROTECTION, DEPENDING ON THE EVENT OF THE "STATE
ACTION" ISSUE.  CERTAINLY ONE MAY NOT BE CONVICTED FOR INCITING CONDUCT
WHICH IS NOT ITSELF CONSTITUTIONALLY PUNISHABLE.  AND DEALING AS WE ARE
IN THE REALM OF EXPRESSION, I DO NOT THINK A STATE MAY PUNISH
INCITEMENT OF ACTIVITY IN CIRCUMSTANCES WHERE THERE IS A SUBSTANTIAL
LIKELIHOOD THAT SUCH ACTIVITY MAY BE CONSTITUTIONALLY PROTECTED.  CF.
GARNER V. LOUISIANA, 368 U.S. 157, 196-207 (CONCURRING OPINION OF THIS
WRITER).  TO IGNORE THAT FACTOR WOULD UNDULY INHIBIT FREEDOM OF
EXPRESSION, EVEN THOUGH CRIMINAL LIABILITY FOR INCITEMENT DOES NOT
ORDINARILY DEPEND UPON THE EVENT OF THE CONDUCT INCITED.  (FN11) 
WERE I ABLE TO AGREE WITH THE COURT THAT THE EXISTENCE OF THE
BRIMINGHAM SEGREGATION ORDINANCE WITHOUT MORE RENDERED ALL INCITED
TRESPASSES IN BIRMINGHAM IMMUNE FROM PROSECUTION, I THINK OUTRIGHT
REVERSAL OF SHUTTLESWORTH'S CONVICTION WOULD BE CALLED FOR.  BUT
BECAUSE OF MY DIFFERENT VIEWS AS TO THE SIGNIFICANCE OF SUCH ORDINANCES
(SUPRA, PP. 251-253), I BELIEVE THAT THE BEARING OF THIS BIRMINGHAM
ORDINANCE ON THE ISSUE OF "SUBSTANTIALITY" IN SHUTTLESWORTH'S CASE, NO
LESS THAN ITS BEARING ON "STATE ACTION" IN THE GOBER CASE, INVOLVES
QUESTIONS OF FACT WHICH MUST FIRST BE DETERMINED BY THE STATE COURTS. 
I WOULD THEREFORE VACATE THE JUDGMENT AS TO SHUTTLESWORTH AND REMAND
HIS CASE FOR A NEW TRIAL.    THESE THEN ARE THE RESULTS IN THESE CASES
WHICH IN MY VIEW SOUND LEGAL PRINCIPLES REQUIRE. 

FN1  EXCEPT FOR ONE WHITE STUDENT WHO PARTICPATED IN A
DEMONSTRATION.  LOMBARD, POST, P. 267. 

FN2  IT IS NOT NOR COULD IT WELL BE SUGGESTED THAT GENERAL ADMISSION
OF NEGROES TO THE STORES PREVENTED THE MANAGEMENT FROM EXCLUDING THEM
FROM SERVICE AT THE WHITE LUNCH COUNTERS. 

FN3  IN TRUAX THE COURT, IN FINDING STATE ACTION IN VIOLATION OF THE
FOURTEENTH AMENDMENT, RELIED ON THE EVIDENCE SHOWING THAT AN ALIEN
EMPLOYEE HAD BEEN DISCHARGED BY HIS EMPLOYER SOLELY BECAUSE OF THE
LATTER'S FEAR OF CRIMINAL PENALTIES FOR NONCOMPLIANCE WITH A STATE
STATUTE PROHIBITING THE EMPLOYMENT OF MORE THAN A CERTAIN NUMBER OF
ALIENS.  THE COURT STRESSED THE IMPORTANCE OF "THE FREEDOM OF THE
EMPLOYER TO EXERCISE HIS JUDGMENT WITHOUT ILLEGAL INTERFERENCE OR
COMPULSION  ...  ."   ID., AT 38. 

FN4  GENERAL CITY CODE OF BIRMINGHAM (1944), SEC. 369:  "IT SHALL BE
UNLAWFUL TO CONDUCT A RESTAURANT OR OTHER PLACE FOR THE SERVING OF FOOD
IN THE CITY, AT WHICH WHITE AND COLORED PEOPLE ARE SERVED IN THE SAME
ROOM, UNLESS SUCH WHITE AND COLORED PERSONS ARE EFFECTUALLY SEPARATED
BY A SOLID PARTITION EXTENDING FROM THE FLOOR UPWARD TO A DISTANCE OF
SEVEN FEET OR HIGHER, AND UNLESS A SEPARATE ENTRANCE FROM THE STREET IS
PROVIDED FOR EACH COMPARTMENT." 

FN5  "THE DEFENDANT MAY PLEAD MORE PLEAS THAN ONE WITHOUT UNNECESSARY
REPETITION; AND, IF HE DOES NOT RELY SOLELY ON A DENIAL OF THE
PLAINTIFF'S CAUSE OF ACTION, MUST PLEAD SPECIALLY THE MATTER OF
DEFENSE." 

FN6  SEE THE PRINTED RECORD IN THIS COURT, PP. 24-26. 

FN7  IN THIS CONNECTION IT IS NOT AT ALL CLEAR THAT THE STATE RULES
RELATING TO CIVIL ACTIONS APPLY TO ALL PHASES OF THIS PROSECUTION.  THE
COURT OF APPEALS REFERRED ONLY TO THEIR APPLICATION TO APPEALS IN THIS
TYPE OF CASE, AND IT MAY BE THAT THE SPECIAL PLEADING RULE OF SEC. 225
DOES NOT APPLY IN A TRESPASS PROSECUTION.  THE ALABAMA CASES CITED BY
THE COURT OF APPEALS, SEE 41 ALA. APP., AT 315, 316, 133 SO. 2D, AT
699, SHED NO LIGHT ON THIS QUESTION, AND RESPONDENT HAS NOT REFERRED TO
ANY OTHER RELEVANT AUTHORITY. 

FN8  CODE OF DURHAM (1947), C. 13, SEC. 42:  "IN ALL LICENSED
RESTAURANTS, PUBLIC EATING PLACES AND 'WEENIE SHOPS' WHERE PERSONS OF
THE WHITE AND COLORED RACES ARE PERMITTED TO BE SERVED WITH, AND EAT
FOOD, AND ARE ALLOWED TO CONGREGATE, THERE SHALL BE PROVIDED SEPARATE
ROOMS FOR THE SEPARATE ACCOMMODATION OF EACH RACE.  THE PARTITION
BETWEEN SUCH ROOMS SHALL BE CONSTRUCTED OF WOOD, PLASTER OR BRICK OR
LIKE MATERIAL, AND SHALL REACH FROM FLOOR TO CEILING.  ANY PERSON
VIOLATING THIS SECTION SHALL, UPON CONVICTION, PAY A FINE OF TEN
DOLLARS AND EACH DAY'S VIOLATION THEREOF SHALL CONSTITUTE A SEPARATE
AND DISTINCT OFFENSE." 

FN9  AT THE TRIAL TESTIMONY WAS INTRODUCED SHOWING THAT GOBER AND
DAVIS (TWO OF THE 10 DEFENDANTS IN THE GOBER CASE), AS WELL AS "OTHER
PERSONS" WHO "WERE PRESENT  ...  IN THE COURT ROOM" WHEN THE DEFENDANTS
IN THE GOBER CASE WERE TRIED FOR TRESPASS, ATTENDED THE MEETING AT
SHUTTLESWORTH'S HOUSE.   THERE WAS ALSO TESTIMONY THAT "OTHER BOYS WHO
ATTENDED THE MEETING" PARTICIPATED IN "SIT-INS" IN BIRMINGHAM ON THE
SAME DAY THAT THE GOBER "SIT-INS" OCCURRED.  THE RECORD DOES NOT REVEAL
WHETHER THE GOBER DEFENDANTS WERE THE ONLY PERSONS WHO PARTICIPATED IN
THE "SIT-INS," NOR WHETHER THERE WERE OTHERS WHO WERE INCITED BY
SHUTTLESWORTH BUT WHO DID NOT THEREAFTER TAKE PART IN "SIT-IN"
DEMONSTRATIONS.  THE TRIAL COURT'S STATEMENT THAT "YOU HAVE HERE THE
TEN STUDENTS AND THE COURT THINKS THEY WERE MISUSED AND MISLED INTO A
VIOLATION OF A CITY ORDINANCE" WAS MADE IN THE COURSE OF SENTENCING THE
GOBER DEFENDANTS, NOT SHUTTLESWORTH OR BILLUPS (THE TRIALS OF BOTH OF
THESE GROUPS OF DEFENDANTS HAVING BEEN CONDUCTED SERIATIM BY THE SAME
JUDGE, WHO REVERSED SENTENCING UNTIL ALL TRIALS HAD BEEN COMPLETED). 
IT WAS IN NO SENSE A FINDING OF FACT WITH RESPECT TO THE CRIMES WITH
WHICH SHUTTLESWORTH AND BILLUPS HAD BEEN CHARGED. 

FN10  SEE POLLITT, DIME STORE DEMONSTRATIONS:  EVENTS AND LEGAL
PROBLEMS OF FIRST SIXTY DAYS, DUKE L.J. (1960) 315, 317-337. 
APPARENTLY THE STATE COURTS TOOK JUDICIAL NOTICE OF SUCH DEMONSTRATIONS
IN ALABAMA, WHICH THEY EVIDENTLY HAD THE RIGHT TO DO.  SEE, E.G., GREEN
V. MUTUAL BENEFIT HEALTH & ACCIDENT ASSN., 267 ALA. 56, 99 SO. 2D 694. 

FN11  SEE WECHSLER, JONES AND KORN, THE TREATMENT OF INCHOATE CRIMES
IN THE MODEL PENAL CODE OF THE AMERICAN LAW INSTITUTE:  ATTEMPT,
SOLICITATION, AND CONSPIRACY, 61 COL. L. REV. 571, 621-628 (1961). 
..END :













SHUTTLESWORTH V. CITY OF BIRMINGHAM 373 U.S. 262 


NO. 67.  ARGUED NOVEMBER 6-7, 1962.  - DECIDED MAY 20, 1963.  - 41 ALA.
APP. 318, 319, 134 SO. 2D 213, 215, REVERSED. 


PETITIONERS, TWO NEGRO MINISTERS, WERE CONVICTED IN AN ALABAMA STATE
COURT OF AIDING AND ABETTING A VIOLATION OF A CRIMINAL TRESPASS
ORDINANCE OF BIRMINGHAM, ALA.  THE ONLY EVIDENCE AGAINST THEM WAS TO
THE EFFECT THAT THEY HAD INCITED TEN NEGRO STUDENTS TO ENGAGE IN A "SIT
DOWN DEMONSTRATION" AT A WHITE LUNCH COUNTER AS A PROTEST AGAINST
RACIAL SEGREGATION.  IN GOBER V. CITY OF BIRMINGHAM, POST, P. 374, THIS
COURT TODAY HOLDS, ON THE AUTHORITY OF PETERSON V. CITY OF GREENVILLE,
ANTE, P. 244, THAT THE CONVICTIONS OF THOSE TEN STUDENTS FOR CRIMINAL
TRESPASS WERE CONSTITUTIONALLY INVALID.  HELD:  SINCE THOSE CONVICTIONS
HAVE BEEN SET ASIDE, IT FOLLOWS THAT THESE PETITIONERS DID NOT INCITE
OR AID AND ABET ANY CRIME, AND THAT, THEREFORE, THE CONVICTIONS OF
THESE PETITIONERS MUST ALSO BE SET ASIDE.  PP. 263-266. 

SHUTTLESWORTH ET AL. V. CITY OF BIRMINGHAM. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS, BOTH NEGRO MINISTERS, WERE TRIED AND CONVICTED IN
THE BIRMINGHAM, ALABAMA, RECORDER'S COURT FOR AIDING AND ABETTING A
VIOLATION OF THE CITY CRIMINAL TRESPASS ORDINANCE.  THE COMPLAINT FILED
WITH RESPECT TO SHUTTLESWORTH CHARGED: 

"COMES THE CITY OF BIRMINGHAM, ALABAMA, A MUNICIPAL CORPORATION, AND
COMPLAINS THAT F.L. SHUTTLESWORTH, WITHIN TWELVE MONTHS BEFORE THE
BEGINNING OF THIS PROSECUTION, AND WITHIN THE CITY OF BIRMINGHAM OR THE
POLICE JURISDICTION THEREOF, DID INCITE OR AID OR ABET IN THE VIOLATION
OF AN ORDINANCE OF THE CITY, TO-WIT, SECTION 1436 (FN1) OF THE GENERAL
CITY CODE OF BIRMINGHAM OF 1944, IN THAT F.L. SHUTTLESWORTH DID INCITE
OR AID OR ABET ANOTHER PERSON TO GO OR REMAIN ON THE PREMISES OF
ANOTHER AFTER BEING WARNED NOT TO DO SO, CONTRARY TO AND IN VIOLATION
OF SECTION OF 824 (FN2) OF THE GENERAL CITY CODE OF BIRMINGHAM OF
1944." 

AN IDENTICAL COMPLAINT WAS FILED CHARGING BILLUPS. 

ON APPEAL TO THE CIRCUIT COURT PETITIONERS RECEIVED A TRIAL DE NOVO
AND WERE AGAIN CONVICTED.  PETITIONER SHUTTLESWORTH WAS SENTENCED TO
180 DAYS IN JAIL AT HARD LABOR AND A FINE OF $100.  PETITIONER BILLUPS
WAS SENTENCED TO 30 DAYS AND A FINE OF $25.  ON FURTHER APPEAL TO THE
ALABAMA COURT OF APPEALS THE CONVICTIONS WERE AFFIRMED.  41 ALA.  APP.
318, 319, 134 SO. 2D 213, 215.  THE ALABAMA SUPREME COURT DENIED WRITS
OF CERTIORARI.  273 ALA. 704, 713, 134 SO. 2D 214, 215.  BECAUSE OF THE
GRAVE CONSTITUTIONAL QUESTIONS INVOLVED, WE GRANTED CERTIORARI.  370
U.S. 934. 

THOUGH PETITIONERS TOOK SEPARATE APPEALS, THEY WERE JOINTLY TRIED IN
THE CIRCUIT COURT.  THE EVIDENCE IS SKETCHY IN CHARACTER.  ONLY ONE
WITNESS TESTIFIED, A CITY DETECTIVE WHO HAD LISTENED TO PETITIONERS'
TRIAL IN THE RECORDER'S COURT.  (FN3)  THE DETECTIVE TESTIFIED TO HIS
RECOLLECTION OF THE TESTIMONY OF TWO COLLEGE BOYS WHOM (AMONG OTHERS)
PETITIONERS WERE ALLEGED TO HAVE INCITED TO COMMIT THE CRIMINAL
TRESPASS. 

THESE TWO BOYS WERE JAMES E. GOBER AND JAMES ALBERT DAVIS.  THEY WERE
CONVICTED OF CRIMINAL TRESPASS IN A SEPARATE PROCEEDING SUBSEQUENT TO
PETITIONERS' TRIAL.  IN GOBER V. CITY OF BIRMINGHAM, POST, P. 374,
DECIDED THIS DAY, WE HOLD ON THE AUTHORITY OF PETERSON V. CITY OF
GREENVILLE, ANTE, P. 244, THAT THE CONVICTIONS OF GOBER AND DAVIS ARE
CONSTITUTIONALLY INVALID.  THE DETECTIVE STATED THAT IN THE RECORDER'S
COURT GOBER AND DAVIS HAD TESTIFED AS FOLLOWS: 

JAMES GOBER AND JAMES ALBERT DAVIS, BOTH NEGRO COLLEGE STUDENTS, WENT
TO THE HOME OF PETITIONER, REV. SHUTTLESWORTH, ON MARCH 30, 1960, WHERE
THERE WERE OTHER COLLEGE STUDENTS.  PETITIONER, REV. BILLUPS, DROVE
DAVIS THERE, AND BILLUPS WAS PRESENT WHEN SHUTTLESWORTH ASKED FOR
VOLUNTEERS TO PARTICIPATE IN "SIT-DOWN DEMONSTRATIONS."  GOBER
"TESTIFIED THAT IN RESPONSE TO REV. SHUTTLESWORTH ASKING FOR VOLUNTEERS
TO PARTICIPATE IN THE SIT DOWN STRIKES THAT HE VOLUNTEERED TO GO TO
PIZITZ AT 10:30 AND TAKE PART IN THE SIT DOWN DEMONSTRATIONS."  A LIST
WAS MADE BY SOMEONE, AND SHUTTLESWORTH ANNOUNCED HE WOULD GET THEM OUT
OF JAIL.  GOBER AND DAVIS PARTICIPATED IN SIT-DOWN DEMONSTRATIONS ON
THE FOLLOWING DAY AS DID OTHERS WHO WERE PRESENT. 

THIS IS THE SOLE EVIDENCE UPON WHICH THE PETITIONERS WERE CONVICTED. 
THERE WAS NO EVIDENCE THAT ANY OF THE DEMONSTRATIONS WHICH RESULTED
FROM THE MEETING WERE DISORDERLY OR OTHERWISE IN VIOLATION OF LAW. 

PETITIONERS CONTEND THAT THERE IS NO EVIDENCE TO SHOW GUILT OF THE
CHARGED OFFENSE.  SEE GARNER V. LOUISIANA, 368 U.S. 157; THOMPSON V.
LOUISVILLE, 362 U.S. 199.  WE NEED NOT REACH THAT QUESTION SINCE THERE
IS A MORE COMPELLING REASON WHY THESE CONVICTIONS CANNOT STAND. 

PETITIONERS WERE CONVICTED FOR INCITING, AIDING, AND ABETTING A
VIOLATION OF THE CITY TRESPASS ORDINANCE.  THE TRESPASS "VIOLATION" WAS
THAT COMMITTED BY THE PETITIONERS IN GOBER V. CITY OF BIRMINGHAM, POST,
P. 374.  (FN4)  SINCE THE CONVICTIONS IN GOBER HAVE BEEN SET ASIDE, IT
FOLLOWS THAT THE PRESENT PETITIONERS DID NOT INCITE OR AID AND ABET ANY
CRIME, AND THAT THEREFORE THEIR OWN CONVICTIONS MUST BE SET ASIDE. 

IT IS GENERALLY RECOGNIZED THAT THERE CAN BE NO CONVICTION FOR AIDING
AND ABETTING SOMEONE TO DO AN INNOCENT ACT.  SEE, E.G., EDWARDS V.
UNITED STATES 286 F.2D 681 (C.A. 5TH CIR. 1960); MEREDITH V. UNITED
STATES, 238 F.2D 535 (C.A. 4TH CIR. 1956); COLOSACCO V. UNITED STATES,
196 F.2D 165 (C.A. 10TH CIR. 1952); KARRELL V. UNITED STATES, 181 F.2D
981, 985 (C.A. 9TH CIR. 1950); MANNING V. BIDDLE, 14 F.2D 518 (C.A. 8TH
CIR. 1926); KELLEY V. FLORIDA, 79 FLA.  182, 83 SO. 909 (1920);
COMMONWEALTH V. LONG,  246 KY. 809, 811-812, 56 S.W.2D 524, 525 (1933);
CUMMINGS V. COMMONWEALTH, 221 KY. 301, 313, 298 S.W. 943, 948 (1927);
STATE V. ST. PHILIP, 169 LA. 468, 471-472, 125 SO. 451, 452 (1929);
STATE V. HAINES, 51 LA. ANN.  731, 25 SO. 372 (1899); WAGES V. STATE,
210 MISS.  187, 190, 49 SO. 2D 246, 248 (1950); STATE V. CUSHING, 61
NEV. 132, 146, 120 P.2D 208, 215 (1941); STATE V. HESS, 233 WIS. 4, 8
9, 288 N.W. 275, 277 (1939); CF. LANGHAM V. STATE, 243 ALA. 564, 571,
11 SO. 2D 131, 137 (1942).  REVERSED. 

FN1  BIRMINGHAM GENERAL CITY CODE, 1944, SEC. 1436, PROVIDES: 

"AFTER WARNING - ANY PERSON WHO ENTERS INTO THE DWELLING HOUSE, OR
GOES OR REMAINS ON THE PREMISES OF ANOTHER, AFTER BEING WARNED NOT TO
DO SO, SHALL ON CONVICTION, BE PUNISHED AS PROVIDED IN SECTION 4,
PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO POLICE OFFICERS IN THE
DISCHARGE OF OFFICIAL DUTIES." 

FN2  BIRMINGHAM GENERAL CITY CODE, 1944, SEC. 824, PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO INCITE, OR AID OR ABET IN, THE
VIOLATION OF ANY LAW OR ORDINANCE OF THE CITY, OR ANY PROVISION OF
STATE LAW, THE VIOLATION OF WHICH IS A MISDEMEANOR." 

FN3  PETITIONERS OBJECTED TO ALL OF THIS TESTIMONY AS HEARSAY AND ON
CONSTITUTIONAL GROUNDS, BUT THESE OBJECTIONS WERE OVERRULED. 

FN4  THE TRIAL COURT STATED, "YOU HAVE HERE THE TEN STUDENTS AND THE
COURT THINKS THEY WERE MISUSED AND MISLED INTO A VIOLATION OF A CITY
ORDINANCE AND HAS SO RULED."  AS WE UNDERSTAND THE RECORD, THESE
CONVICTIONS WERE BASED UPON THE INCITING OF THE 10 STUDENTS WHO ARE THE
PETITIONERS IN GOBER. 

FOR OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 248. 
..END :



LOMBARD V. LOUISIANA 373 U.S. 267 


NO. 58.  ARGUED NOVEMBER 5-7, 1962.  - DECIDED MAY 20, 1963.  - 241 LA.
958, 132 SO. 2D 860, REVERSED. 


PETITIONERS, THREE NEGRO STUDENTS AND ONE WHITE STUDENT, ENTERED A
STORE IN NEW ORLEANS, LA., SAT AT A LUNCH COUNTER RESERVED FOR WHITE
PEOPLE AND REQUESTED SERVICE, WHICH WAS REFUSED.  FOR REFUSING TO LEAVE
WHEN REQUESTED TO DO SO BY THE MANAGER OF THE STORE, THEY WERE
CONVICTED OF VIOLATING THE LOUISIANA CRIMINAL MISCHIEF STATUTE, WHICH
MAKES IT A CRIME TO REFUSE TO LEAVE A PLACE OF BUSINESS AFTER BEING
ORDER TO DO SO BY THE PERSON IN CHARGE OF THE PREMISES.  NO STATE
STATUTE OR CITY ORDINANCE REQUIRED RACIAL SEGREGATION IN RESTAURANTS;
BUT BOTH THE MAYOR AND THE SUPERINTENDENT OF POLICE HAD ANNOUNCED
PUBLICLY THAT SUCH "SIT-IN DEMONSTRATIONS" WOULD NOT BE PERMITTED. 
HELD: PETITIONERS' CONVICTIONS VIOLATED THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  PETERSON V. CITY OF GREENVILLE, ANTE, P.
244.  PP. 268-274. 

LOMBARD ET AL. V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS FOR REVIEW TRESPASS CONVICTIONS RESULTING FROM AN
ATTEMPT BY NEGROES TO BE SERVED IN A PRIVATELY OWNED RESTAURANT
CUSTOMARILY PATRONIZED ONLY BY WHITES.  HOWEVER, UNLIKE A NUMBER OF THE
CASES THIS DAY DECIDED, NO STATE STATUTE OR CITY ORDINANCE HERE FORBIDS
DESEGREGATION OF THE RACES IN ALL RESTAURANT FACILITIES.  NEVERTHELESS,
WE CONCLUDE THAT THIS CASE IS GOVERNED BY THE PRINCIPLES ANNOUNCED IN
PETERSON V. CITY OF GREENVILLE, ANTE, P. 244, AND THAT THE CONVICTIONS
FOR THIS REASON MUST BE REVERSED. 

PETITIONERS ARE THREE NEGRO AND ONE WHITE COLLEGE STUDENTS.  ON
SEPTEMBER 17, 1960, AT ABOUT 10:30 IN THE MORNING THEY ENTERED THE
MCCRORY FIVE AND TEN CENT STORE IN NEW ORLEANS, LOUISIANA.  THEY SAT
DOWN AT A REFRESHMENT COUNTER AT THE BACK OF THE STORE AND REQUESTED
SERVICE, WHICH WAS REFUSED.  ALTHOUGH NO SIGN SO INDICATED, THE
MANAGEMENT OPERATED THE COUNTER ON A SEGREGATED BASIS, SERVING ONLY
WHITE PATRONS.  THE COUNTER WAS DESIGNED TO ACCOMMODATE 24 PERSONS. 
NEGROES WERE WELCOME TO SHOP IN OTHER AREAS OF THE STORE.  THE
RESTAURANT MANAGER, BELIEVING THAT THE "UNUSUAL CIRCUMSTANCE" OF
NEGROES SITTING AT THE COUNTER CREATED AN "EMERGENCY," ASKED
PETITIONERS TO LEAVE AND, WHEN THEY DID NOT DO SO, ORDERED THAT THE
COUNTER BE CLOSED.  THE RESTAURANT MANAGER THEN CONTACTED THE STORE
MANAGER AND CALLED THE POLICE.  HE FRANKLY TESTIFIED THAT THE
PETITIONERS DID NOT CAUSE ANY DISTURBANCE, THAT THEY WERE ORDERLY, AND
THAT HE ASKED THEM TO LEAVE BECAUSE THEY WERE NEGROES.  PRESUMABLY HE
ASKED THE WHITE PETITIONER TO LEAVE BECAUSE HE WAS IN THE COMPANY OF
NEGROES. 

A NUMBER OF POLICE OFFICERS, INCLUDING A CAPTAIN AND MAJOR OF POLICE,
ARRIVED AT THE STORE SHORTLY AFTER THEY WERE CALLED.  THREE OF THE
OFFICERS HAD A CONFERENCE WITH THE STORE MANAGER.  THE STORE MANAGER
THEN WENT BEHIND THE COUNTER, FACED PETITIONERS, AND IN A LOUD VOICE
ASKED THEM TO LEAVE.  HE ALSO TESTIFIED THAT THE PETITIONERS WERE
MERELY SITTING QUIETLY AT THE COUNTER THROUGHOUT THESE HAPPENINGS. 
WHEN PETITIONERS REMAINED SEATED, THE POLICE MAJOR SPOKE TO PETITIONER
GOLDFINCH, AND ASKED HIM WHAT THEY WERE DOING THERE.  MR. GOLDFINCH
REPLIED THAT PETITIONERS "WERE GOING TO SIT THERE UNTIL THEY WERE GOING
TO BE SERVED."  WHEN PETITIONERS STILL DECLINED TO LEAVE, THEY WERE
ARRESTED BY THE POLICE, LED OUT OF THE STORE, AND TAKEN AWAY IN A
PATROL WAGON.  THEY WERE LATER TRIED AND CONVICTED FOR VIOLATION OF THE
LOUISIANA CRIMINAL MISCHIEF STATUTE.  (FN1)  THIS STATUTE, IN ITS
APPLICATION TO THIS CASE, HAS ALL THE ELEMENTS OF THE USUAL TRESPASS
STATUTE.  EACH PETITIONER WAS SENTENCED TO SERVE 60 DAYS IN THE PARISH
PRISON AND TO PAY A FINE OF $350.  IN DEFAULT OF PAYMENT OF THE FINE,
EACH WAS TO SERVE 60 ADDITIONAL DAYS IN PRISON.  ON APPEAL TO THE
SUPREME COURT OF LOUISIANA THE JUDGMENTS OF CONVICTION WERE AFFIRMED. 
241 LA. 958, 132 SO. 2D 860.  BECAUSE OF THE SUBSTANTIAL FEDERAL
QUESTIONS PRESENTED, WE GRANTED CERTIORARI.  370 U.S. 935. 

PRIOR TO THIS OCCURRENCE NEW ORLEANS CITY OFFICIALS, CHARACTERIZING
CONDUCT SUCH AS PETITIONERS WERE ARRESTED FOR AS "SIT-IN
DEMONSTRATIONS," HAD DETERMINED THAT SUCH ATTEMPTS TO SECURE
DESEGREGATED SERVICE, THOUGH ORDERLY AND POSSIBLY INOFFENSIVE TO LOCAL
MERCHANTS, WOULD NOT BE PERMITTED. 

EXACTLY ONE WEEK EARLIER, ON SEPTEMBER 10, 1960, A LIKE OCCURRENCE
HAD TAKEN PLACE IN A WOOLWORTH STORE IN THE SAME CITY.  IN IMMEDIATE
REACTION THERETO THE SUPERINTENDENT OF POLICE ISSUED A HIGHLY
PUBLICIZED STATEMENT WHICH DISCUSSED THE INCIDENT AND STATED THAT "WE
WISH TO URGE THE PARENTS OF BOTH WHITE AND NEGRO STUDENTS WHO
PARTICIPATED IN TODAY'S SIT-IN DEMONSTRATION TO URGE UPON THESE YOUNG
PEOPLE THAT SUCH ACTIONS ARE NOT IN THE COMMUNITY INTEREST  ...  .  WE
WANT EVERYONE TO FULLY UNDERSTAND THAT THE POLICE DEPARTMENT AND ITS
PERSONNEL IS READY AND ABLE TO ENFORCE THE LAWS OF THE CITY OF NEW
ORLEANS AND THE STATE OF LOUISIANA."  (FN2)  ON SEPTEMBER 13, FOUR DAYS
BEFORE PETITIONERS' ARREST, THE MAYOR OF NEW ORLEANS ISSUED AN
UNEQUIVOCAL STATEMENT CONDEMNING SUCH CONDUCT AND DEMANDING ITS
CESSATION.  THIS STATEMENT WAS ALSO WIDELY PUBLICIZED; IT READ IN
PART: 

"I HAVE TODAY DIRECTED THE SUPERINTENDENT OF POLICE THAT NO
ADDITIONAL SIT-IN DEMONSTRATIONS  ... WILL BE PERMITTED  ...
REGARDLESS OF THE AVOWED PURPOSE OR INTENT OF THE PARTICIPANTS  ...  . 

     *         *         *         *         * 

"IT IS MY DETERMINATION THAT THE COMMUNITY INTEREST, THE PUBLIC
SAFETY, AND THE ECONOMIC WELFARE OF THIS CITY REQUIRE THAT SUCH
DEMONSTRATIONS CEASE AND THAT HENCEFORTH THEY BE PROHIBITED BY THE
POLICE DEPARTMENT."  (FN3) 

BOTH STATEMENTS WERE PUBLICIZED IN THE NEW ORLEANS TIMES-PICAYUNE. 
THE MAYOR AND THE SUPERINTENDENT OF POLICE BOTH TESTIFIED THAT, TO
THEIR KNOWLEDGE, NO EATING ESTABLISHMENT IN NEW ORLEANS OPERATED
DESEGREGATED EATING FACILITIES. 

BOTH THE RESTAURANT MANAGER AND THE STORE MANAGER ASKED THE
PETITIONERS TO LEAVE.  PETITIONERS WERE CHARGED WITH FAILING TO LEAVE
AT THE REQUEST OF THE STORE MANAGER.  THERE WAS EVIDENCE TO INDICATE
THAT THE RESTAURANT MANAGER ASKED PETITIONERS TO LEAVE IN OBEDIENCE TO
THE DIRECTIVE OF THE CITY OFFICIALS.  HE TOLD THEM THAT "I AM NOT
ALLOWED TO SERVE YOU HERE  ...  .  WE HAVE TO SELL TO YOU AT THE REAR
OF THE STORE WHERE WE HAVE A COLORED COUNTER."  AND HE CALLED THE
POLICE "AS A MATTER OF ROUTINE PROCEDURE."  THE PETITIONERS TESTIFIED
THAT WHEN THEY DID NOT LEAVE, THE RESTAURANT MANAGER WHISTLED AND THE
EMPLOYEES REMOVED THE STOOLS, TURNED OFF THE LIGHTS, AND PUT UP SIGN
SAYING THAT THE COUNTER WAS CLOSED.  ONE PETITIONER STATED THAT "IT
APPEARED TO BE A VERY EFFICIENT THING, EVERYONE KNEW WHAT TO DO."  THE
STORE MANAGER CONCEDED THAT HIS DECISION TO OPERATE A SEGREGATED
FACILITY "CONFORMED TO STATE POLICY AND PRACTICE" AS WELL AS LOCAL
CUSTOM.  WHEN ASKED WHETHER "IN THE LAST 30 DAYS TO 60 DAYS HE HAD
ENTERED INTO ANY CONFERENCE WITH OTHER DEPARTMENT STORE MANAGERS HERE
IN NEW ORLEANS RELATIVE TO SIT-IN PROBLEMS," THE STORE MANAGER STATED:
"WE HAVE SPOKEN OF IT."  THE ABOVE EVIDENCE ALL TENDED TO INDICATE THAT
THE STORE OFFICIALS' ACTIONS WERE COERCED BY THE CITY.  BUT THE
EVIDENCE OF COERCION WAS NOT FULLY DEVELOPED BECAUSE THE TRIAL JUDGE
FORBADE PETITIONERS TO ASK QUESTIONS DIRECTED TO THAT VERY ISSUE. 

BUT WE NEED NOT PURSUE THIS INQUIRY FURTHER.  A STATE, OR A CITY, MAY
ACT AS AUTHORITATIVELY THROUGH ITS EXECUTIVE AS THROUGH ITS LEGISLATIVE
BODY.  SEE EX PARTE VIRGINIA, 100 U.S. 339, 347.  AS WE INTERPRET THE
NEW ORLEANS CITY OFFICIALS' STATEMENTS, THEY HERE DETERMINED THAT THE
CITY WOULD NOT PERMIT NEGROES TO SEEK DESEGREGATED SERVICE IN
RESTAURANTS.  CONSEQUENTLY, THE CITY MUST BE TREATED EXACTLY AS IF IT
HAD AN ORDINANCE PROHIBITING SUCH CONDUCT.  WE HAVE JUST HELD IN
PETERSON V. CITY OF GREENVILLE, ANTE, P. 244, THAT WHERE AN ORDINANCE
MAKES IT UNLAWFUL FOR OWNERS OR MANAGERS OF RESTAURANTS TO SEAT WHITES
AND NEGROES TOGETHER, A CONVICTION UNDER THE STATE'S CRIMINAL PROCESSES
EMPLOYED IN A WAY WHICH ENFORCES THE DISCRIMINATION MANDATED BY THAT
ORDINANCE CANNOT STAND.  EQUALLY THE STATE CANNOT ACHIEVE THE SAME
RESULT BY AN OFFICIAL COMMAND WHICH HAS AT LEAST AS MUCH COERCIVE
EFFECT AS AN ORDINANCE.  THE OFFICIAL COMMAND HERE WAS TO DIRECT
CONTINUANCE OF SEGREGATED SERVICE IN RESTAURANTS, AND TO PROHIBIT ANY
CONDUCT DIRECTED TOWARD ITS DISCONTINUANCE; IT WAS NOT RESTRICTED
SOLELY TO PRESERVE THE PUBLIC PEACE IN A NONDISCRIMINATORY FASHION IN A
SITUATION WHERE VIOLENCE WAS PRESENT OR IMMINENT BY REASON OF PUBLIC
DEMONSTRATIONS.  THEREFORE HERE, AS IN PETERSON, THESE CONVICTIONS,
COMMANDED AS THEY WERE BY THE VOICE OF THE STATE DIRECTING SEGREGATED
SERVICE AT THE RESTAURANT, CANNOT STAND.  TURNER V. CITY OF MEMPHIS,
369 U.S. 350.  REVERSED. 

FN1  LA. REV. STAT., 1950 (CUM. SUPP. 1960), SEC. 14:59(6), PROVIDES
IN PERTINENT PART: 

"CRIMINAL MISCHIEF IS THE INTENTIONAL PERFORMANCE OF ANY OF THE
FOLLOWING ACTS: 

     *         *         *        *         * 

"(6)  TAKING TEMPORARY POSSESSION OF ANY PART OR PARTS OF A PLACE OF
BUSINESS, OR REMAINING IN A PLACE OF BUSINESS AFTER THE PERSON IN
CHARGE OF SUCH BUSINESS OR PORTION OF SUCH BUSINESS HAS ORDERED SUCH
PERSON TO LEAVE THE PREMISES AND TO DESIST FROM THE TEMPORARY
POSSESSION OF ANY PART OR PARTS OF SUCH BUSINESS." 

FN2  THE FULL TEXT OF THE STATEMENT READS: 

"THE REGRETTABLE SIT-IN ACTIVITY TODAY AT THE LUNCH COUNTER OF A
CANAL ST. CHAIN STORE BY SEVERAL YOUNG WHITE AND NEGRO PERSONS CAUSES
ME TO ISSUE THIS STATEMENT TO THE CITIZENS OF NEW ORLEANS. 

"WE URGE EVERY ADULT AND JUVENILE TO READ THIS STATEMENT CAREFULLY,
COMPLETELY AND CALMLY. 

"FIRST, IT IS IMPORTANT THAT ALL CITIZENS OF OUR COMMUNITY UNDERSTAND
THAT THIS SIT-IN DEMONSTRATION WAS INITIATED BY A VERY SMALL GROUP. 

"WE FIRMLY BELIEVE THAT THEY DO NOT REFLECT THE SENTIMENTS OF THE
GREAT MAJORITY OF RESPONSIBLE CITIZENS, BOTH WHITE AND NEGRO, WHO MAKE
UP OUR POPULATION. 

"WE BELIEVE IT IS MOST IMPORTANT THAT THE MATURE RESPONSIBLE CITIZENS
OF BOTH RACES IN THIS CITY UNDERSTAND THAT AND THAT THEY CONTINUE THE
EXERCISE OF SOUND, INDIVIDUAL JUDGMENT, GOODWILL AND A SENSE OF
PERSONAL AND COMMUNITY RESPONSIBILITY. 

"MEMBERS OF BOTH THE WHITE AND NEGRO GROUPS IN NEW ORLEANS FOR THE
MOST PART ARE AWARE OF THE INDIVIDUAL'S OBLIGATION FOR GOOD CONDUCT -
AN OBLIGATION BOTH TO HIMSELF AND TO HIS COMMUNITY.  WITH THE EXERCISE
OF CONTINUED, RESPONSIBLE LAW-ABIDING CONDUCT BY ALL PERSONS, WE SEE NO
REASON FOR ANY CHANGE WHATEVER IN THE NORMAL, GOOD RACE-RELATIONS THAT
HAVE TRADITIONALLY EXISTED IN NEW ORLEANS. 

"AT THE SAME TIME WE WISH TO SAY TO EVERY ADULT AND JUVENILE IN THIS
CITY THAT THE POLICE DEPARTMENT INTENDS TO MAINTAIN PEACE AND ORDER. 

"NO ONE SHOULD HAVE ANY CONCERN OR QUESTION OVER EITHER THE INTENT OR
THE ABILITY OF THIS DEPARTMENT TO KEEP AND PRESERVE PEACE AND ORDER. 

"AS PART OF ITS REGULAR OPERATING PROGRAM, THE NEW ORLEANS POLICE
DEPARTMENT IS PREPARED TO TAKE PROMPT AND EFFECTIVE ACTION AGAINST ANY
PERSON OR GROUP WHO DISTURBS THE PEACE OR CREATES DISORDER ON PUBLIC OR
PRIVATE PROPERTY. 

"WE WISH TO URGE THE PARENTS OF BOTH WHITE AND NEGRO STUDENTS WHO
PARTICIPATED IN TODAY'S SIT-IN DEMONSTRATION TO URGE UPON THESE YOUNG
PEOPLE THAT SUCH ACTIONS ARE NOT IN THE COMMUNITY INTEREST. 

"FINALLY, WE WANT EVERYONE TO FULLY UNDERSTAND THAT THE POLICE
DEPARTMENT AND ITS PERSONNEL IS READY AND ABLE TO ENFORCE THE LAWS OF
THE CITY OF NEW ORLEANS AND THE STATE OF LOUISIANA." 

FN3  THE FULL TEXT OF THE MAYOR'S STATEMENT READS: 

"I HAVE TODAY DIRECTED THE SUPERINTENDENT OF POLICE THAT NO
ADDITIONAL SIT-IN DEMONSTRATIONS OR SO-CALLED PEACEFUL PICKETING
OUTSIDE RETAIL STORES BY SIT-IN DEMONSTRATORS OR THEIR SYMPATHIZERS
WILL BE PERMITTED. 

"THE POLICE DEPARTMENT, IN MY JUDGMENT, HAS HANDLED THE INITIAL SIT
IN DEMONSTRATION FRIDAY AND THE FOLLOW-UP PICKETING ACTIVITY SATURDAY
IN AN EFFICIENT AND CREDITABLE MANNER.  THIS IS IN KEEPING WITH THE OFT
ANNOUNCED POLICY OF THE NEW ORLEANS CITY GOVERNMENT THAT PEACE AND
ORDER IN OUR CITY WILL BE PRESERVED. 

"I HAVE CAREFULLY REVIEWED THE REPORTS OF THESE TWO INITIAL
DEMONSTRATIONS BY A SMALL GROUP OF MISGUIDED WHITE AND NEGRO STUDENTS,
OR FORMER STUDENTS.  IT IS MY CONSIDERED OPINION THAT REGARDLESS OF THE
AVOWED PURPOSE OR INTENT OF THE PARTICIPANTS, THE EFFECT OF SUCH
DEMONSTRATIONS IS NOT IN THE PUBLIC INTEREST OF THIS COMMUNITY. 

"ACT 70 OF THE 1960 LEGISLATIVE SESSION REDEFINES DISTURBING THE
PEACE TO INCLUDE 'THE COMMISSION OF ANY ACT AS WOULD FORESEEABLY
DISTURB OR ALARM THE PUBLIC.' 

"ACT 70 ALSO PROVIDES THAT PERSONS WHO SEEK TO PREVENT PROSPECTIVE
CUSTOMERS FROM ENTERING PRIVATE PREMISES TO TRANSACT BUSINESS SHALL BE
GUILTY OF DISORDERLY CONDUCT AND DISTURBING THE PEACE. 

"ACT 80 - OBSTRUCTING PUBLIC PASSAGES - PROVIDES THAT 'NO PERSON
SHALL WILFULLY OBSTRUCT THE FREE, CONVENIENT, AND NORMAL USE OF ANY
PUBLIC SIDEWALK, STREET, HIGHWAY, ROAD, BRIDGE, ALLEY OR OTHER PASSAGE
WAY OR THE ENTRANCE, CORRIDOR OR PASSAGE OF ANY PUBLIC BUILDING,
STRUCTURE, WATER CRAFT OR FERRY BY IMPEDING, HINDERING, STIFLING,
RETARDING OR RESTRAINING TRAFFIC OR PASSAGE THEREON OR THEREIN.' 

"IT IS MY DETERMINATION THAT THE COMMUNITY INTEREST, THE PUBLIC
SAFETY, AND THE ECONOMIC WELFARE OF THIS CITY REQUIRE THAT SUCH
DEMONSTRATIONS CEASE AND THAT HENCEFORTH THEY BE PROHIBITED BY THE
POLICE DEPARTMENT." 

FOR OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 248. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I HAVE CONCLUDED IT NECESSARY
TO STATE WITH MORE PARTICULARITY WHY LOUISIANA HAS BECOME INVOLVED TO A
"SIGNIFICANT EXTENT" (BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S.
715, 722) IN DENYING EQUAL PROTECTION OF THE LAWS TO PETITIONERS. 

         I. 

THE COURT BELOW BASED ITS AFFIRMANCE OF THESE CONVICTIONS ON THE
GROUND THAT THE DECISION TO SEGREGATE THIS RESTAURANT WAS A PRIVATE
CHOICE, UNINFLUENCED BY THE OFFICERS OF THE STATE.  STATE V. GOLDFINCH,
241 LA. 958, 132 SO. 2D 860.  IF THIS WERE AN INTRUSION OF A MAN'S HOME
OR YARD OR FARM OR GARDEN, THE PROPERTY OWNER COULD SEEK AND OBTAIN THE
AID OF THE STATE AGAINST THE INTRUDER.  FOR THE BILL OF RIGHTS, AS
APPLIED TO THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, CASTS ITS WEIGHT ON THE SIDE OF THE PRIVACY OF HOMES.  THE
THIRD AMENDMENT WITH ITS BAN ON THE QUARTERING OF SOLDIERS IN PRIVATE
HOMES RADIATES THAT PHILOSOPHY.  THE FOURTH AMENDMENT, WHILE CONCERNED
WITH OFFICIAL INVASIONS OF PRIVACY THROUGH SEARCHES AND SEIZURES, IS
ELOQUENT TESTIMONY OF THE SANCTITY OF PRIVATE PREMISES.  FOR EVEN WHEN
THE POLICE ENTER PRIVATE PRECINCTS THEY MUST, WITH RARE EXCEPTIONS,
COME ARMED WITH A WARRANT ISSUED BY A MAGISTRATE.  A PRIVATE PERSON HAS
NO STANDING TO OBTAIN EVEN LIMITED ACCESS.  THE PRINCIPLE THAT A MAN'S
HOME IS HIS CASTLE IS BASIC TO OUR SYSTEM OF JURISPRUDENCE. 

BUT A RESTAURANT, LIKE THE OTHER DEPARTMENTS OF THIS RETAIL STORE
WHERE NEGROES WERE SERVED, THOUGH PRIVATE PROPERTY WITHIN THE
PROTECTION OF THE FIFTH AMENDMENT, HAS NO AURA OF CONSTITUTIONALLY
PROTECTED PRIVACY ABOUT IT.  ACCESS BY THE PUBLIC IS THE VERY REASON
FOR ITS EXISTENCE. 

"OWNERSHIP DOES NOT ALWAYS MEAN ABSOLUTE DOMINION.  THE MORE AN
OWNER, FOR HIS ADVANTAGE, OPENS UP HIS PROPERTY FOR USE BY THE PUBLIC
IN GENERAL, THE MORE DO HIS RIGHTS BECOME CIRCUMSCRIBED BY THE
STATUTORY AND CONSTITUTIONAL RIGHTS OF THOSE WHO USE IT."  MARSH V.
ALABAMA, 326 U.S. 501, 506. 

THE LINE BETWEEN A PRIVATE BUSINESS AND A PUBLIC ONE HAS BEEN LONG AND
HOTLY CONTESTED.  NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262, IS ONE
OF THE LATEST CASES IN A LONG CHAIN.  THE COURT, OVER THE DISSENT OF
MR. JUSTICE BRANDEIS AND MR. JUSTICE STONE, HELD UNCONSTITUTIONAL AN
OKLAHOMA STATUTE REQUIRING THOSE MANUFACTURING ICE FOR SALE AND
DISTRIBUTION TO OBTAIN A LICENSE FROM THE STATE.  MR. JUSTICE BRANDEIS'
DISSENT WAS IN THE TRADITION OF AN ANCIENT DOCTRINE PERHAPS BEST
ILLUSTRATED (FN1) BY GERMAN ALLIANCE INS. CO. V. KANSAS, 233 U.S. 389,
WHICH UPHELD A KANSAS STATUTE THAT REGULATED FIRE INSURANCE RATES.  MR.
JUSTICE MCKENNA, WRITING FOR THE COURT, SAID, "IT IS THE BUSINESS THAT
IS THE FUNDAMENTAL THING; PROPERTY IS BUT ITS INSTRUMENT, THE MEANS OF
RENDERING THE SERVICE WHICH HAS BECOME OF PUBLIC INTEREST."  ID., 408. 
CF. FERGUSON V. SKRUPA, 372 U.S. 726. 

SOME OF THE CASES REFLECT CREATIVE ATTEMPTS BY JUDGES TO MAKE
INNKEEPERS, COMMON CARRIERS, AND THE LIKE PERFORM THE PUBLIC FUNCTION
OF TAKING CARE OF ALL TRAVELERS.  (FN2)  OTHERS INVOLVE THE POWER OF
THE LEGISLATURE TO IMPOSE VARIOUS KINDS OF RESTRAINTS OR CONDITIONS ON
BUSINESS.  AS A RESULT OF THE CONJUNCTION OF VARIOUS FORCES, JUDICIAL
AND LEGISLATIVE, IT CAME TO PASS THAT "A LARGE PROVINCE OF INDUSTRIAL
ACTIVITY IS UNDER THE JOINT SOVEREIGNTY OF THE MARKET AND THE STATE." 
(FN3) 

THE PRESENT CASE WOULD BE ON ALL FOURS WITH THE EARLIER ONES HOLDING
THAT A BUSINESS MAY BE REGULATED WHEN IT RENDERS A SERVICE WHICH "HAS
BECOME OF PUBLIC INTEREST" (GERMAN ALLIANCE INS. CO. V. KANSAS, SUPRA,
408) IF LOUISIANA HAD DECLARED, AS DO SOME STATES, (FN4) THAT A
BUSINESS MAY NOT REFUSE SERVICE TO A CUSTOMER ON ACCOUNT OF RACE AND
THE PROPRIETOR OF THE RESTAURANT WERE CHARGED WITH VIOLATING THIS
STATUTE.  WE SHOULD NOT AWAIT LEGISLATIVE ACTION BEFORE DECLARING THAT
STATE COURTS CANNOT ENFORCE THIS TYPE OF SEGREGATION.  COMMON-LAW
JUDGES FASHIONED THE RULES GOVERNING INNKEEPERS AND CARRIERS.  (FN5) 

AS STATED BY HOLT, C.J., IN LANE V. COTTON, 12 MOD. 472, 484 (1701): 

"WHEREVER ANY SUBJECT TAKES UPON HIMSELF A PUBLIC TRUST FOR THE
BENEFIT OF THE REST OF HIS FELLOW-SUBJECTS, HE IS EO IPSO BOUND TO
SERVE THE SUBJECT IN ALL THE THINGS THAT ARE WITHIN THE REACH AND
COMPREHENSION OF SUCH AN OFFICE, UNDER PAIN OF AN ACTION AGAINST HIM
...  .  IF ON THE ROAD A SHOE FALL OFF MY HORSE, AND I COME TO A SMITH
TO HAVE ONE PUT ON, AND THE SMITH REFUSE TO DO IT, AN ACTION WILL LIE
AGAINST HIM, BECAUSE HE HAS MADE PROFESSION OF A TRADE WHICH IS FOR THE
PUBLIC GOOD, AND HAS THEREBY EXPOSED AND VESTED AN INTEREST OF HIMSELF
IN ALL THE KING'S SUBJECTS THAT WILL EMPLOY HIM IN THE WAY OF HIS
TRADE.  IF AN INNKEEPER REFUSE TO ENTERTAIN A GUEST WHERE HIS HOUSE IS
NOT FULL, AN ACTION WILL LIE AGAINST HIM, AND SO AGAINST A CARRIER, IF
HIS HORSES BE NOT LOADED, AND HE REFUSE TO TAKE A PACKET PROPER TO BE
SENT BY A CARRIER."  (FN6) 

JUDGES WHO FASHIONED THOSE RULES HAD NO WRITTEN CONSTITUTION AS A
GUIDE.  THERE WERE, TO BE SURE, CRIMINAL STATUTES THAT REGULATED THE
COMMON CALLINGS.  (FN7)  BUT THE CIVIL REMEDIES WERE JUDGE MADE.  WE
LIVE UNDER A CONSTITUTION THAT PROCLAIMS EQUAL PROTECTION OF THE LAWS. 
THAT STANDARD IS OUR GUIDE.  SEE GRIFFIN V. ILLINOIS, 351 U.S. 12;
DOUGLAS V. CALIFORNIA, 372 U.S. 353.  AND UNDER THAT STANDARD BUSINESS
SERVING THE PUBLIC CANNOT SEEK THE AID OF THE STATE POLICE OR THE STATE
COURTS OR THE STATE LEGISLATURES TO FOIST RACIAL SEGREGATION IN PUBLIC
PLACES UNDER ITS OWNERSHIP AND CONTROL.  THE CONSTITUTIONAL PROTECTION
EXTENDS ONLY TO "STATE" ACTION, NOT TO PERSONAL ACTION.  BUT WE HAVE
"STATE" ACTION HERE, WHOLLY APART FROM THE ACTIVITY OF THE MAYOR AND
POLICE, FOR LOUISIANA HAS INTERCEDED WITH ITS JUDICIARY TO PUT CRIMINAL
SANCTIONS BEHIND RACIAL DISCRIMINATION IN PUBLIC PLACES.  SHE MAY NOT
DO SO CONSISTENTLY WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT. 

THE CRIMINAL PENALTY (60 DAYS IN JAIL AND A $350 FINE) WAS IMPOSED ON
THESE PETITIONERS BY LOUISIANA'S JUDICIARY.  THAT ACTION OF THE
JUDICIARY WAS STATE ACTION.  SUCH ARE THE HOLDINGS IN SHELLEY V.
KRAEMER, 334 U.S. 1, AND BARROWS V. JACKSON, 346 U.S. 249.  (FN8)
THOSE CASES INVOLVED RESTRICTIVE COVENANTS.  SHELLEY V. KRAEMER WAS A
CIVIL SUIT TO ENJOIN VIOLATION OF A RESTRICTIVE COVENANT BY A NEGRO
PURCHASER.  BARROWS V. JACKSON WAS A SUIT TO COLLECT DAMAGES FOR
VIOLATING A RESTRICTIVE COVENANT BY SELLING RESIDENTIAL PROPERTY TO A
NEGRO.  THOSE CASES, LIKE THE PRESENT ONE, WERE "PROPERTY" CASES.  IN
THOSE CASES, AS IN THE PRESENT ONE, THE LINE WAS DRAWN AT DEALING WITH
NEGROES.  THERE, AS HERE, NO STATE LEGISLATURE WAS INVOLVED, ONLY THE
STATE JUDICIARY.  THE COURT SAID IN SHELLEY V. KRAEMER: 

"THAT THE ACTION OF STATE COURTS AND JUDICIAL OFFICERS IN THEIR
OFFICIAL CAPACITIES IS TO BE REGARDED AS ACTION OF THE STATE WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT, IS A PROPOSITION WHICH HAS LONG
BEEN ESTABLISHED BY DECISIONS OF THIS COURT."  334 U.S., AT 14. 

THE LIST OF INSTANCES WHERE ACTION OF THE STATE JUDICIARY IS STATE
ACTION WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT IS A LONG ONE. 
MANY WERE NOTED IN SHELLEY V. KRAEMER, 334 U.S., AT 14-18.  MOST STATE
CONVICTIONS IN VIOLATION OF THE FIRST, FOURTH, OR FIFTH AMENDMENT, AS
INCORPORATED IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
HAVE INDEED IMPLICATED NOT THE STATE LEGISLATURE BUT THE STATE
JUDICIARY, OR THE STATE JUDICIARY AND THE STATE PROSECUTOR AND THE
STATE POLICE.  SHELLEY V. KRAEMER - AND LATER BARROWS V. JACKSON - HELD
THAT THE STATE JUDICIARY, ACTING ALONE TO ENFORCE PRIVATE
DISCRIMINATION AGAINST NEGROES WHO DESIRED TO BUY PRIVATE PROPERTY IN
RESIDENTIAL AREAS, VIOLATED THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT. 

PLACES OF PUBLIC ACCOMMODATION SUCH AS RETAIL STORES, RESTAURANTS,
AND THE LIKE RENDER A "SERVICE WHICH HAS BECOME OF PUBLIC INTEREST"
(GERMAN ALLIANCE INS. CO. V. KANSAS, SUPRA, 408) IN THE MANNER OF THE
INNKEEPERS AND COMMON CARRIERS OF OLD.  THE SUBSTANCE OF THE OLD COMMON
LAW RULES HAS NO DIRECT BEARING ON THE DECISION REQUIRED IN THIS CASE. 
RESTAURATEURS AND OWNERS OF OTHER PLACES OF AMUSEMENT AND RESORT HAVE
NEVER BEEN SUBJECTED TO THE SAME DUTIES AS INNKEEPERS AND COMMON
CARRIERS.   (FN9)  BUT, WHAT IS IMPORTANT IS THAT THIS WHOLE BODY OF
LAW WAS A RESPONSE TO THE FELT NEEDS OF THE TIMES THAT SPAWNED IT.
(FN10)  IN OUR TIME THE INTERDEPENDENCE OF PEOPLE HAS GREATLY
INCREASED; THE DAYS OF LAISSEZ FAIRE HAVE LARGELY DISAPPEARED; MEN ARE
MORE AND MORE DEPENDENT ON THEIR NEIGHBORS FOR SERVICES AS WELL AS FOR
HOUSING AND THE OTHER NECESSITIES OF LIFE.  BY ENFORCING THIS CRIMINAL
MISCHIEF STATUTE, INVOKED IN THE MANNER NOW BEFORE US, THE LOUISIANA
COURTS ARE DENYING SOME PEOPLE ACCESS TO THE MAINSTREAM OF OUR HIGHLY
INTERDEPENDENT LIFE SOLELY BECAUSE OF THEIR RACE.   YET, "IF THERE IS
ANY ONE PURPOSE OF THE FOURTEENTH AMENDMENT THAT IS WHOLLY OUTSIDE THE
REALM OF DOUBT, IT IS THAT THE AMENDMENT WAS DESIGNED TO BAR STATES
FROM DENYING TO SOME GROUPS, ON ACCOUNT OF THEIR RACE OR COLOR, ANY
RIGHTS, PRIVILEGES, AND OPPORTUNITIES ACCORDED TO OTHER GROUPS."  OYAMA
V.  CALIFORNIA, 332 U.S. 633, 649 (CONCURRING OPINION). 

AN INNKEEPER OR COMMON CARRIER HAS ALWAYS BEEN ALLOWED TO EXCLUDE
DRUNKS, CRIMINALS AND DISEASED PERSONS, BUT ONLY BECAUSE THE PUBLIC'S
INTEREST IN PROTECTING HIS AND HIS GUESTS' HEALTH AND PROPERTY
OUTWEIGHS ITS INTEREST IN PROVIDING ACCOMMODATIONS FOR THIS SMALL GROUP
OF TRAVELERS.  (FN11)  AS A GENERAL RULE, INNKEEPERS AND CARRIERS
CANNOT REFUSE THEIR SERVICES ON ACCOUNT OF RACE; THOUGH THE RULE
DEVELOPED IN THIS COUNTRY THAT THEY CAN PROVIDE "SEPARATE BUT EQUAL"
FACILITIES.  (FN12)  AND FOR A PERIOD OF OUR HISTORY EVEN THIS COURT
UPHELD STATE LAWS GIVING SANCTION TO SUCH A RULE.  COMPARE PLESSY V.
FERGUSON, 163 U.S. 537, WITH GAYLE V. BROWDER, 352 U.S. 903, AFFIRMING,
142 F. SUPP.  707.  BUT SURELY SHELLEY V. KRAEMER, SUPRA, AND BARROWS
V. JACKSON, SUPRA, SHOW THAT THE DAY HAS PASSED WHEN AN INNKEEPER,
CARRIER, HOUSING DEVELOPER, OR RETAILER CAN DRAW A RACIAL LINE, REFUSE
SERVICE TO SOME ON ACCOUNT OF COLOR, AND OBTAIN THE AID OF A STATE IN
ENFORCING HIS PERSONAL BIAS BY SENDING OUTLAWED CUSTOMERS TO PRISON OR
EXACTING FINES FROM THEM. 

BUSINESS, SUCH AS THIS RESTAURANT, IS STILL PRIVATE PROPERTY.  YET
THERE IS HARDLY ANY PRIVATE ENTERPRISE THAT DOES NOT FEEL THE PINCH OF
SOME PUBLIC REGULATION - FROM PRICE CONTROL, TO HEALTH AND FIRE
INSPECTION, TO ZONING, TO SAFETY MEASURES, TO MINIMUM WAGES AND WORKING
CONDITIONS, TO UNEMPLOYMENT INSURANCE.  WHEN THE DOORS OF A BUSINESS
ARE OPEN TO THE PUBLIC, THEY MUST BE OPEN TO ALL REGARDLESS OF RACE IF
APARTHEID IS NOT TO BECOME ENGRAINED IN OUR PUBLIC PLACES.  IT CANNOT
BY REASON OF THE EQUAL PROTECTION CLAUSE BECOME SO ENGRAINED WITH THE
AID OF STATE COURTS, STATE LEGISLATURES, OR STATE POLICE.  (FN13)

                                       II. 

THERE IS EVEN GREATER REASON TO BAR A STATE THROUGH ITS JUDICIARY
FROM THROWING ITS WEIGHT ON THE SIDE OF RACIAL DISCRIMINATION IN THE
PRESENT CASE, BECAUSE WE DEAL HERE WITH A PLACE OF PUBLIC ACCOMMODATION
UNDER LICENSE FROM THE STATE.  THIS IS THE IDEA I EXPRESSED IN GARNER
V. LOUISIANA, 368 U.S. 157, WHERE ANOTHER OWNER OF A RESTAURANT REFUSED
SERVICE TO A CUSTOMER BECAUSE HE WAS A NEGRO.  THAT VIEW IS NOT NOVEL;
IT STEMS FROM THE DISSENT OF THE FIRST MR. JUSTICE HARLAN IN THE CIVIL
RIGHTS CASES, 109 U.S. 3, 58-59: 

"IN EVERY MATERIAL SENSE APPLICABLE TO THE PRACTICAL ENFORCEMENT OF
THE FOURTEENTH AMENDMENT, RAILROAD CORPORATIONS, KEEPERS OF INNS, AND
MANAGERS OF PLACES OF PUBLIC AMUSEMENT ARE AGENTS OR INSTRUMENTALITIES
OF THE STATE, BECAUSE THEY ARE CHARGED WITH DUTIES TO THE PUBLIC, AND
ARE AMENABLE, IN RESPECT OF THEIR DUTIES AND FUNCTIONS, TO GOVERNMENTAL
REGULATION.  IT SEEMS TO ME THAT, WITHIN THE PRINCIPLE SETTLED IN EX
PARTE VIRGINIA, A DENIAL, BY THESE INSTRUMENTALITIES OF THE STATE, TO
THE CITIZEN, BECAUSE OF HIS RACE, OF THAT EQUALITY OF CIVIL RIGHTS
SECURED TO HIM BY LAW, IS A DENIAL BY THE STATE, WITHIN THE MEANING OF
THE FOURTEENTH AMENDMENT.  IF IT BE NOT, THEN THAT RACE IS LEFT, IN
RESPECT OF THE CIVIL RIGHTS IN QUESTION, PRACTICALLY AT THE MERCY OF
CORPORATIONS AND INDIVIDUALS WIELDING POWER UNDER THE STATES." 

THE NEXUS BETWEEN THE STATE AND THE PRIVATE ENTERPRISE MAY BE
CONTROL, AS IN THE CASE OF A STATE AGENCY.  PENNSYLVANIA V. BOARD OF
TRUSTS, 353 U.S. 230.  OR THE NEXUS MAY BE ONE OF NUMEROUS OTHER
DEVICES.  "STATE SUPPORT OF SEGREGATED SCHOOLS THROUGH ANY ARRANGEMENT,
MANAGEMENT, FUNDS, OR PROPERTY CANNOT BE SQUARED" WITH THE EQUAL
PROTECTION CLAUSE.  COOPER V. AARON, 358 U.S. 1, 19.  CF. HAMPTON V.
JACKSONVILLE, 304 F.2D 320.  A STATE-ASSISTED ENTERPRISE SERVING THE
PUBLIC DOES NOT ESCAPE ITS CONSTITUTIONAL DUTY TO SERVE ALL CUSTOMERS
IRRESPECTIVE OF RACE, EVEN THOUGH ITS ACTUAL OPERATION IS IN THE HANDS
OF A LESSEE.  BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715. 
CF. BOYNTON V. VIRGINIA, 364 U.S. 454.  STATE LICENSING AND
SURVEILLANCE OF A BUSINESS SERVING THE PUBLIC ALSO BRINGS ITS SERVICE
INTO THE PUBLIC DOMAIN.  THIS RESTAURANT NEEDS A PERMIT FROM LOUISIANA
TO OPERATE; (FN14) AND DURING THE EXISTENCE OF THE LICENSE THE STATE
HAS BROAD POWERS OF VISITATION AND CONTROL.  (FN15)  THIS RESTAURANT IS
THUS AN INSTRUMENTALITY OF THE STATE SINCE THE STATE CHARGES IT WITH
DUTIES TO THE PUBLIC AND SUPERVISES ITS PERFORMANCE.  THE STATE'S
INTEREST IN AND ACTIVITY WITH REGARD TO ITS RESTAURANTS EXTENDS FAR
BEYOND ANY MERE INCOME-PRODUCING LICENSING REQUIREMENT. 

THERE IS NO CONSTITUTIONAL WAY, AS I SEE IT, IN WHICH A STATE CAN
LICENSE AND SUPERVISE A BUSINESS SERVING THE PUBLIC AND ENDOW IT WITH
THE AUTHORITY TO MANAGE THAT BUSINESS ON THE BASIS OF APARTHEID, WHICH
IS FOREIGN TO OUR CONSTITUTION. 

FN1  SEE HAMILTON, AFFECTION WITH PUBLIC INTEREST, 39 YALE L.J. 1089,
1098-1099. 

FN2  SEE JEREMY, THE LAW OF CARRIERS, INN-KEEPERS, ETC. (1815), 4-5,
144-147; TIDSWELL, THE INNKEEPER'S LEGAL GUIDE (1864), C. 1; SCHOULER,
LAW OF BAILMENTS (2D ED. 1887), SECS. 274-329, 330-341; BEALE, THE LAW
OF INNKEEPERS AND HOTELS (1906), PASSIM; 1 WYMAN, PUBLIC SERVICE
CORPORATIONS (1911), SECS. 1-5; BURDICK, THE ORIGIN OF THE PECULIAR
DUTIES OF PUBLIC SERVICE COMPANIES, 11 COL. L. REV. 514, 616;
ARTERBURN, THE ORIGIN AND FIRST TEST OF PUBLIC CALLINGS, 75 U. OF PA.
L. REV. 411.    FN3  HAMILTON, SUPRA, NOTE 1, P. 1110. 

FN4  SEE, E.G., MCKINNEY'S CONS.  N.Y. LAWS, VOL. 8, ART. 4; ID.,
VOL. 18, ART. 15; N.J. STAT. ANN., TIT. 10; ID., TIT. 18, C. 25; CAL.
CIV. CODE SEC. 51.  CF. CAL. HEALTH AND SAFETY CODE, SECS. 35700 (1962
SUPP.) ET SEQ.; BURKS V. POPPY CONSTR.  CO., 57 CAL. 2D 463, 370 P.2D
313; MARTIN V. NEW YORK, 22 MISC. 2D 389, 201 N.Y.S.2D 111.  SEE
GENERALLY, GREENBERG, RACE RELATIONS AND AMERICAN LAW, 101-114 (1959);
7 ST. LOUIS U.L.J. 88 (1962). 

FN5  SEE SCHOULER, OP. CIT., SUPRA, NOTE 2, SECS. 274, 335; WYMAN,
OP. CIT., SUPRA, NOTE 2, SEC. 1; ARTERBURN, SUPRA, NOTE 2. 

FN6  SEE ALSO WHITE'S CASE (1558), 2 DYER 158.B.; WARBROOKE V.
GRIFFIN (1609), 2 BROWNL.  254; BENNETT V. MELLOR (1793), 5 TERM REP.
273; THOMPSON V. LACY (1820), 3 B. & ALD.  283. 

FOR CRIMINAL PROSECUTIONS, SEE, E.G., REX V. IVENS (1835), 7 CAR.  &
P. *213; REGINA V. SPRAGUE (1899), 63 J.P. 233. 

FOR A COLLECTION OF THE ENGLISH CASES, SEE 21 HALSBURY'S LAWS OF
ENGLAND (3D ED. 1957) 441 ET SEQ.; 10 MEWS' DIG.  ENG.  CAS. L. TO
1924, PP. 1463 ET SEQ. 

FN7  ARTERBURN, SUPRA, NOTE 2. 

FN8  SEE ALSO ABSTRACT INVESTMENT CO. V. HUTCHINSON, 204 CAL. APP. 2D
242, 251, 22 CAL.  RPTR.  309, 317; 10 U.C.L.A.L. REV. 401. 

FN9  SEE MARRONE V. WASHINGTON JOCKEY CLUB, 227 U.S. 633; MADDEN V.
QUEENS COUNTY JOCKEY CLUB, 296 N.Y. 249, 72 N.E.2D 697; ALPAUGH V.
WOLVERTON, 184 VA. 941, 36 S.E.2D 906; NANCE V. MAYFLOWER TAVERN, 106
UTAH 517, 150 P.2D 773. 

FN10  WYMAN, OP. CIT., SUPRA, NOTE 2, SECS. 1, 2-16, 330; SCHOULER,
OP. CIT., SUPRA, NOTE 2, SECS. 274, 335; BEALE, OP. CIT., SUPRA, NOTE
2, C. I; ARTERBURN, SUPRA, NOTE 2, 420-426. 

FN11  WYMAN, OP. CIT., SUPRA, NOTE 2, C. 18; SCHOULER, OP. CIT.,
SUPRA, NOTE 2, SECS. 320, 322. 

FN12  COMPARE, E.G., CONSTANTINE V. IMPERIAL HOTELS, (1944) 1 K.B.
693; WYMAN, OP. CIT., SUPRA, NOTE 2, SECS. 361, 565, 566, WITH STATE V.
STEELE, 106 N.C. 766, 782, 11 S.E. 478, 484. 

FN13  SEE GENERALLY, POLLITT, DIME STORE DEMONSTRATIONS:  EVENTS AND
LEGAL PROBLEMS OF FIRST SIXTY DAYS, 1960 DUKE L.J. 315, 350-365;
HENKIN, SHELLEY V. KRAEMER:  NOTES FOR A REVISED OPINION, 110 U. OF PA.
L. REV. 473. 

FN14  UNDER THE PROVISIONS OF ARTICLE 7.02 OF THE SANITARY CODE,
PROMULGATED BY THE STATE BOARD OF HEALTH PURSUANT TO LA. REV. STAT.
SEC. 40:11, NO PERSON SHALL OPERATE A PUBLIC EATING PLACE OF ANY KIND
IN THE STATE OF LOUISIANA UNLESS HE HAS BEEN ISSUED A PERMIT TO OPERATE
BY THE LOCAL HEALTH OFFICER; AND PERMITS SHALL BE ISSUED ONLY TO
PERSONS WHOSE ESTABLISHMENTS COMPLY WITH THE REQUIREMENTS OF THE
SANITARY CODE. 

FN15  UNDER LA. REV. STAT., TITLE 40, SECS. 11, 12, 15, 16, 52, AND
69, STATE AND LOCAL HEALTH OFFICIALS CLOSELY POLICE THE PROVISION OF
THE SANITARY CODE.  THEY MAY "ENTER, EXAMINE, AND INSPECT ALL GROUNDS,
STRUCTURES, PUBLIC BUILDINGS, AND PUBLIC PLACES IN EXECUTION OF A
WARRANT ISSUED IN ACCORDANCE WITH THE CONSTITUTION AND LAWS OF
LOUISIANA," AND "ARREST  ...  ALL PERSONS VIOLATING ANY RULE OR
REGULATION OF THE BOARD OR ANY ARTICLE OR PROVISION OF THE SANITARY
CODE  ...  ."  PENALTIES ARE PROVIDED FOR CODE VIOLATIONS.  SEE ALSO
NEW ORLEANS CITY CODE, 1956, SECS. 29-55, 56, AND 58; HOME RULE CHARTER
OF THE CITY OF NEW ORLEANS, SEC. 4-1202(2). 
..END :












WRIGHT V. GEORGIA 373 U.S. 284 


NO. 68.  ARGUED NOVEMBER 7, 1962.  - DECIDED MAY 20, 1963.  - 217 GA.
453, 122 S.E.2D 737, REVERSED. 


PETITIONERS, SIX YOUNG NEGROES, WERE CONVICTED OF BREACH OF THE PEACE
FOR PEACEFULLY PLAYING BASKETBALL IN A PUBLIC PARK IN SAVANNAH, GA.,
CUSTOMARILY USED ONLY BY WHITE PEOPLE AND NOT DISPERSING WHEN ORDERED
TO DO SO BY THE POLICE.  THERE WAS NO EVIDENCE OF DISORDERLY CONDUCT OR
OF ANY ACTIVITY WHICH MIGHT BE THOUGHT TO VIOLATE A BREACH OF THE PEACE
STATUTE.  ONE OF THE ARRESTING OFFICERS TESTIFIED THAT PETITIONERS WERE
ARRESTED BECAUSE THEY WERE NEGROES.  AT THEIR TRIAL, BOTH IN A DEMURRER
TO THE ACCUSATION AND IN MOTIONS FOR A NEW TRIAL, PETITIONERS
CONTENDED, INTER ALIA, THAT THE BREACH OF THE PEACE STATUTE VIOLATED
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE IT DID NOT
GIVE ADEQUATE WARNING THAT THEIR CONDUCT VIOLATED IT.  THE GEORGIA
SUPREME COURT HELD THAT ERROR IN DENIAL OF THE MOTIONS FOR A NEW TRIAL
COULD NOT BE CONSIDERED BECAUSE IT WAS NOT PROPERLY BRIEFED ON THE
APPEAL, AND IT AFFIRMED THE CONVICTIONS.  HELD: 

1.  THERE WAS NO ADEQUATE STATE GROUND FOR THE REFUSAL BY THE GEORGIA
SUPREME COURT TO CONSIDER ERROR IN THE DENIAL OF PETITIONERS' MOTIONS
FOR A NEW TRIAL.  PP. 289-291. 

2.  PETITIONERS' CONVICTIONS VIOLATED THE FOURTEENTH AMENDMENT.  PP.
291-293. 

(A)  THE CONVICTIONS CANNOT BE SUSTAINED ON THE GROUND THAT FAILURE
TO OBEY THE COMMAND OF A POLICE OFFICER CONSTITUTES A TRADITIONAL FORM
OF BREACH OF THE PEACE.  ONE CANNOT BE PUNISHED FOR FAILING TO OBEY A
COMMAND WHICH VIOLATES THE CONSTITUTION, AND THE POLICE OFFICERS'
COMMAND VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, SINCE IT WAS INTENDED TO ENFORCE RACIAL DISCRIMINATION IN
THE PARK.  PP. 291-292. 

(B)  THE CONVICTIONS CANNOT BE SUSTAINED ON THE GROUND THAT
PETITIONER'S CONDUCT WAS LIKELY TO CAUSE A BREACH OF THE PEACE BY
OTHERS, SINCE THE POSSIBILITY OF DISORDER BY OTHERS CANNOT JUSTIFY
EXCLUSION OF A PERSON FROM A PLACE WHERE HE HAS A CONSTITUTIONAL RIGHT
TO BE.  PP. 292-293. 

(C)  IF PETITIONERS WERE CONVICTED BECAUSE A PARK RULE RESERVED THE
PARK FOR USE BY YOUNGER PEOPLE AT THE TIME, THE STATUTE DID NOT GIVE
ADEQUATE WARNING, AS REQUIRED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, SINCE NEITHER THE EXISTENCE NOR THE PUBLICATION
OF ANY SUCH RULE WAS PROVED.  P. 293. 

WRIGHT ET AL. V. GEORGIA. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, SIX YOUNG NEGROES, WERE CONVICTED OF BREACH OF THE PEACE
FOR PEACEFULLY PLAYING BASKETBALL IN A PUBLIC PARK IN SAVANNAH,
GEORGIA, ON THE EARLY AFTERNOON OF MONDAY, JANUARY 23, 1961.  THE
RECORD IS DEVOID OF EVIDENCE OF ANY ACTIVITY WHICH A BREACH OF THE
PEACE STATUTE MIGHT BE THOUGHT TO PUNISH.  FINDING THAT THERE IS NO
ADEQUATE STATE GROUND TO BAR REVIEW BY THIS COURT AND THAT THE
CONVICTIONS ARE VIOLATIVE OF DUE PROCESS OF LAW SECURED BY THE
FOURTEENTH AMENDMENT, WE HOLD THAT THE JUDGMENTS BELOW MUST BE
REVERSED. 

ONLY FOUR WITNESSES TESTIFIED AT PETITIONERS' TRIAL:  THE TWO
ARRESTING OFFICERS, THE CITY RECREATIONAL SUPERINTENDENT, AND A
SERGEANT OF POLICE.  ALL WERE PROSECUTION WITNESSES.  NO WITNESS
CONTRADICTED ANY TESTIMONY GIVEN BY ANY OTHER WITNESSES.  ON THE DAY IN
QUESTION THE PETITIONERS WERE PLAYING IN A BASKETBALL COURT AT DAFFIN
PARK, SAVANNAH, GEORGIA.  THE PARK IS OWNED AND OPERATED BY THE CITY
FOR RECREATIONAL PURPOSES, IS ABOUT 50 ACRES IN AREA, AND IS
CUSTOMARILY USED ONLY BY WHITES.  A WHITE WOMAN NOTIFIED THE TWO POLICE
OFFICER WITNESSES OF THE PRESENCE OF PETITIONERS IN THE PARK.  THEY
INVESTIGATED, ACCORDING TO ONE OFFICER, "BECAUSE SOME COLORED PEOPLE
WERE PLAYING IN THE PARK.  I DID NOT ASK THIS WHITE LADY HOW OLD THESE
PEOPLE WERE.  AS SOON AS I FOUND OUT THESE WERE COLORED PEOPLE I
IMMEDIATELY WENT THERE."  THE OFFICER ALSO CONCEDED THAT "I HAVE NEVER
MADE PREVIOUS ARRESTS IN DAFFIN PARK BECAUSE PEOPLE PLAYED BASKETBALL
THERE  ...  .  I ARRESTED THESE PEOPLE FOR PLAYING BASKETBALL IN DAFFIN
PARK.  ONE REASON WAS BECAUSE THEY WERE NEGROES.  I OBSERVED THE
CONDUCT OF THESE PEOPLE, WHEN THEY WERE ON THE BASKETBALL COURT AND
THEY WERE DOING NOTHING BESIDES PLAYING BASKETBALL, THEY WERE JUST
NORMALLY PLAYING BASKETBALL, AND NONE OF THE CHILDREN FROM THE SCHOOLS
WERE THERE AT THAT PARTICULAR TIME."  THE OTHER OFFICER ADMITTED THAT
PETITIONERS "WERE NOT NECESSARILY CREATING ANY DISORDER, THEY WERE JUST
'SHOOTING AT THE GOAL,' THAT'S ALL THEY WERE DOING, THEY WASN'T
DISTURBING ANYTHING."  PETITIONERS WERE NEAT AND WELL DRESSED. 
NEVERTHELESS, THE OFFICERS ORDERED THE PETITIONERS TO LEAVE THE PARK. 
ONE PETITIONER ASKED ONE OF THE OFFICERS "BY WHAT AUTHORITY" HE ASKED
THEM TO LEAVE; THE OFFICER RESPONDED THAT HE "DIDN'T NEED ANY ORDERS TO
COME OUT THERE  ...  ."  BUT HE ADMITTED THAT "IT IS (NOT) UNUSUAL FOR
ONE TO INQUIRE 'WHY' THEY ARE BEING ARRESTED."  WHEN ARRESTED THE
PETITIONERS OBEYED THE POLICE ORDERS AND WITHOUT DISTURBANCE ENTERED
THE CRUISER TO BE TRANSPORTED TO POLICE HEADQUARTERS.  NO CROWD
ASSEMBLED. 

THE RECREATIONAL SUPERINTENDENT'S TESTIMONY WAS CONFUSED AND
CONTRADICTORY.  IN ESSENCE HE TESTIFIED THAT SCHOOL CHILDREN HAD
PREFERENCE IN THE USE OF THE PARK'S PLAYGROUND FACILITIES BUT THAT
THERE WAS NO OBJECTION TO USE BY OLDER PERSONS IF CHILDREN WERE NOT
THERE AT THE TIME.  NO CHILDREN WERE PRESENT AT THIS TIME.  THE ARRESTS
WERE MADE AT ABOUT 2 P.M.  THE SCHOOLS RELEASED THEIR STUDENTS AT 2:30
AND, ACCORDING TO ONE OFFICER, IT WOULD HAVE BEEN AT LEAST 30 MINUTES
BEFORE ANY CHILDREN COULD HAVE REACHED THE PLAYGROUND.  THE OFFICER
ALSO STATED THAT HE DID NOT KNOW WHETHER THE BASKETBALL COURT WAS
RESERVED FOR A PARTICULAR AGE GROUP AND DID NOT KNOW THE RULES OF THE
CITY RECREATIONAL DEPARTMENT.  IT WAS CONCEDED AT THE TRIAL THAT NO
SIGNS WERE POSTED IN THE PARK INDICATING WHAT AREAS, IF ANY, WERE
RESERVED FOR YOUNGER CHILDREN AT PARTICULAR HOURS.  IN ORAL ARGUMENT
BEFORE THIS COURT IS WAS CONCEDED THAT THE REGULATIONS OF THE PARK WERE
NOT PRINTED. 

THE ACCUSATION CHARGED PETITIONERS WITH ASSEMBLING "FOR THE PURPOSE
OF DISTURBING THE PUBLIC PEACE  ...  ."  AND NOT DISPERSING AT THE
COMMAND OF THE OFFICERS.  THE JURY WAS CHARGED, WITH RESPECT TO THE
OFFENSE ITSELF, ONLY IN TERMS OF THE ACCUSATION AND THE STATUTE.  (FN1)
UPON CONVICTION FIVE PETITIONERS WERE SENTENCED TO PAY A FINE OF $100
OR TO SERVE FIVE MONTHS IN PRISON.  PETITIONER WRIGHT WAS SENTENCED TO
PAY A FINE OF $125 OR TO SERVE SIX MONTHS IN PRISON. 

PETITIONERS' PRINCIPAL CONTENTION IN THIS COURT IS THAT THE BREACH OF
THE PEACE STATUTE DID NOT GIVE ADEQUATE WARNING THAT THEIR CONDUCT
VIOLATED THAT ENACTMENT IN DEROGATION OF THEIR RIGHTS UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE
UNITED STATES.  THIS CONTENTION WAS PLAINLY RAISED AT THE TRIAL, BOTH
IN A DEMURRER TO THE ACCUSATION AND IN MOTIONS FOR A NEW TRIAL, AND WAS
PRESSED ON APPEAL TO THE GEORGIA SUPREME COURT.  BOTH THE DEMURRER AND
NEW TRIAL MOTIONS RAISED A NUMBER OF OTHER ISSUES.  THE GEORGIA SUPREME
COURT HELD THAT ERROR IN THE DENIAL OF THE MOTIONS FOR A NEW TRIAL
COULD NOT BE CONSIDERED BECAUSE IT WAS NOT PROPERLY BRIEFED ON THE
APPEAL.  BUT THE COURT NEVERTHELESS SEEMED TO PASS UPON THE CLAIM
BECAUSE IT HAD BEEN RAISED IN THE DEMURRER, (FN2) AND AFFIRMED THE
CONVICTIONS.  217 GA. 453, 122 S.E.2D 737.  CERTIORARI WAS GRANTED. 
370 U.S. 935. 

SINCE THERE IS SOME QUESTION AS TO WHETHER THE GEORGIA SUPREME COURT
CONSIDERED PETITIONERS' CLAIM OF VAGUENESS TO HAVE BEEN PROPERLY RAISED
IN THE DEMURRER, (FN3) WE PREFER TO REST OUR JURISDICTION UPON A FIRMER
FOUNDATION.  WE HOLD, FOR THE REASONS SET FORTH HEREINAFTER, THAT THERE
WAS NO ADEQUATE STATE GROUND FOR THE GEORGIA COURT'S REFUSAL TO
CONSIDER ERROR IN THE DENIAL OF PETITIONERS' MOTIONS FOR A NEW TRIAL. 

                 I. 

A COMMENTATOR ON GEORGIA PROCEDURE HAS CONCLUDED THAT "PROBABLY NO
PHASE OF PLEADING IN GEORGIA IS FRAUGHT WITH MORE TECHNICALITIES THAN
WITH RESPECT TO RAISING CONSTITUTIONAL ISSUES."  (FN4) EXAMINATION OF
THE GEORGIA CASES BEARS OUT THIS ASSERTION.  IN AN EXTRAORDINARY NUMBER
AN ATTEMPT TO RAISE CONSTITUTIONAL ISSUES HAS BEEN FRUSTRATED BY A
HOLDING THAT THE QUESTION WAS NOT PROPERLY RAISED OR PURSUED.  BUT
"WHATEVER SPRINGES THE STATE MAY SET FOR THOSE WHO ARE ENDEAVORING TO
ASSERT RIGHTS THAT THE STATE CONFERS, THE ASSERTION OF FEDERAL RIGHTS,
WHEN PLAINLY AND REASONABLY MADE, IS NOT TO BE DEFEATED UNDER THE NAME
OF LOCAL PRACTICE."  DAVIS V. WECHSLER, 263 U.S. 22, 24.  SEE ALSO LOVE
V. GRIFFITH, 266 U.S. 32; STROMBERG V. CALIFORNIA, 283 U.S. 359;
TERMINIELLO V. CHICAGO 337 U.S. 1; STAUB V. CITY OF BAXLEY, 355 U.S.
313; N.A.A.C.P.  V. ALABAMA, 357 U.S. 449. 

IN THIS CASE THE GEORGIA SUPREME COURT HELD THAT ERROR IN THE DENIAL
OF THE MOTIONS FOR A NEW TRIAL COULD NOT BE CONSIDERED BECAUSE "THERE
WAS NO ARGUMENT, CITATION OF AUTHORITY, OR STATEMENT THAT (THE GROUNDS
FOR REVERSAL STATED IN THE NEW TRIAL MOTIONS)  ...  WERE STILL RELIED
UPON."  THE COURT FOUND "THE APPLICABLE RULE, AS LAID DOWN IN HENDERSON
V. LOTT, 163 GA. 326(2) (136 SE 403), (TO BE)  ...  :  'ASSIGNMENTS OF
ERROR NOT INSISTED UPON BY COUNSEL IN THEIR BRIEFS OR OTHERWISE WILL BE
TREATED BY THIS COURT AS ABANDONED.  A MERE RECITAL IN BRIEFS OF THE
EXISTENCE OF AN ASSIGNMENT OF ERROR, WITHOUT ARGUMENT OR CITATION OF
AUTHORITIES IN ITS SUPPORT, AND WITHOUT A STATEMENT THAT IT IS INSISTED
UPON BY COUNSEL, IS INSUFFICIENT TO SAVE IT FROM BEING TREATED AS
ABANDONED.'"  217 GA., AT 454-455, 122 S.E.2D, AT 740.  PRESUMABLY THE
COURT WAS RESTATING THE REQUIREMENTS OF SEC. 6-1308 OF THE GEORGIA
ANNOTATED CODE OF 1935.  THAT SECTION PROVIDES:  "ALL QUESTIONS RAISED
IN THE MOTION FOR NEW TRIAL SHALL BE CONSIDERED BY THE APPELLATE COURT
EXCEPT WHERE QUESTIONS SO RAISED ARE EXPRESSLY OR IMPLIEDLY ABANDONED
BY COUNSEL EITHER IN THE BRIEF OR UPON ORAL ARGUMENT.  A GENERAL
INSISTENCE UPON ALL THE GROUNDS OF THE MOTION SHALL BE HELD TO BE
SUFFICIENT." 

TO ASCERTAIN THE PRECISE HOLDING OF THE GEORGIA COURT WE MUST EXAMINE
THE BRIEF WHICH THE PETITIONERS SUBMITTED IN CONNECTION WITH THEIR
APPEAL.  IT SPECIFICALLY ASSIGNED AS ERROR THE OVERRULING OF THEIR
MOTIONS FOR A NEW TRIAL.  AND IN THE SECTION OF THE BRIEF DEVOTED TO
ARGUMENT IT WAS STATED: 

"PLAINTIFFS-IN-ERROR HAD ASSEMBLED FOR THE PURPOSE OF PLAYING
BASKETBALL AND WERE IN FACT ONLY PLAYING BASKETBALL IN A MUNICIPALLY
OWNED PARK, ACCORDING TO THE STATE'S OWN EVIDENCE.  NEVERTHELESS, THEY
WERE ARRESTED AND CONVICTED UNDER THE SAID STATUTE WHICH PROHIBITED
ASSEMBLIES FOR THE PURPOSE OF 'DISTURBING THE PUBLIC PEACE OR
COMMITTING ANY UNLAWFUL ACT.'  WHERE A STATUTE IS SO VAGUE AS TO MAKE
CRIMINAL AN INNOCENT ACT, A CONVICTION UNDER IT CANNOT BE SUSTAINED. 
MURRAY WINTERS V. NEW YORK, 333 U.S. 507  ...  .  PLAINTIFFS-IN-ERROR
COULD NOT POSSIBLY HAVE PREDETERMINED FROM THE WORDING OF THE STATUTE
THAT IT WOULD HAVE PUNISHED AS A MISDEMEANOR AN ASSEMBLY FOR THE
PURPOSE OF PLAYING BASKETBALL." 

OBVIOUSLY PETITIONERS DID IN FACT ARGUE THE POINT WHICH THEY PRESS IN
THIS COURT.  THUS THE HOLDING OF THE GEORGIA COURT MUST NOT HAVE BEEN
THAT THE PETITIONERS ABANDONED THEIR ARGUMENT BUT RATHER THAT THE
ARGUMENT COULD NOT BE CONSIDERED BECAUSE IT WAS NOT EXPLICITLY
IDENTIFIED IN THE BRIEF WITH THE MOTIONS FOR A NEW TRIAL.  IN SHORT THE
GEORGIA COURT WOULD REQUIRE THE PETITIONERS TO SAY SOMETHING LIKE THE
FOLLOWING AT THE END OF THE PARAGRAPH QUOTED ABOVE:  "A FORTIORI IT WAS
ERROR FOR THE TRIAL COURT TO OVERRULE THE MOTIONS FOR A NEW TRIAL."  AS
WAS SAID IN A SIMILAR CASE COMING TO US FROM THE GEORGIA COURTS, THIS
"WOULD BE TO FORCE RESORT TO AN ARID RITUAL OF MEANINGLESS FORM." 
STAUB V. CITY OF BAXLEY, SUPRA, AT 320.  THE STATE MAY NOT DO THAT HERE
ANY MORE THAN IT COULD IN STAUB.  HERE, AS IN STAUB, THE STATE GROUND
IS INADEQUATE.  ITS INADEQUACY IS ESPECIALLY APPARENT BECAUSE NO PRIOR
GEORGIA CASE WHICH RESPONDENT HAS CITED NOR WHICH WE HAVE FOUND GIVES
NOTICE OF THE EXISTENCE OF ANY REQUIREMENT THAT AN ARGUMENT IN A BRIEF
BE SPECIFICALLY IDENTIFIED WITH A MOTION MADE IN THE TRIAL COURT.  "A
LOCAL PROCEDURAL RULE, ALTHOUGH IT MAY NOW APPEAR IN RETROSPECT TO FORM
PART OF A CONSISTENT PATTERN OF PROCEDURES  ...  , CANNOT AVAIL THE
STATE HERE, BECAUSE PETITIONERS) COULD NOT FAIRLY BE DEEMED TO HAVE
BEEN APPRISED OF ITS EXISTENCE.  NOVELTY IN PROCEDURAL REQUIREMENTS
CANNOT BE PERMITTED TO THWART REVIEW IN THIS COURT  ...  ."  N.A.A.C.P.
V. ALABAMA, SUPRA, AT 457.  WE PROCEED TO A CONSIDERATION OF THE MERITS
OF PETITIONERS' CONSTITUTIONAL CLAIM. 

                II. 

THREE POSSIBLE BASES FOR PETITIONERS' CONVICTIONS ARE SUGGESTED. 
FIRST, IT IS SAID THAT FAILURE TO OBEY THE COMMAND OF A POLICE OFFICER
CONSTITUTES A TRADITIONAL FORM OF BREACH OF THE PEACE.  OBVIOUSLY,
HOWEVER, ONE CANNOT BE PUNISHED FOR FAILING TO OBEY THE COMMAND OF AN
OFFICER IF THAT COMMAND IS ITSELF VIOLATIVE OF THE CONSTITUTION.  THE
COMMAND OF THE OFFICERS IN THIS CASE WAS DOUBLY A VIOLATION OF
PETITIONERS' CONSTITUTIONAL RIGHTS.  IT WAS OBVIOUSLY BASED, ACCORDING
TO THE TESTIMONY OF THE ARRESTING OFFICERS THEMSELVES, UPON THEIR
INTENTION TO ENFORCE RACIAL DISCRIMINATION IN THE PARK.  FOR THIS
REASON THE ORDER VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  SEE NEW ORLEANS PARK IMPROVEMENT ASSN. V. DETIEGE, 358 U.S.
54, AFFIRMING 252 F.2D 122.  THE COMMAND WAS ALSO VIOLATIVE OF
PETITIONERS' RIGHTS BECAUSE, AS WILL BE SEEN, THE OTHER ASSERTED BASIS
FOR THE ORDER - THE POSSIBILITY OF DISORDER BY OTHERS - COULD NOT
JUSTIFY EXCLUSION OF THE PETITIONERS FROM THE PARK.  THUS PETITIONERS
COULD NOT CONSTITUTIONALLY BE CONVICTED FOR REFUSING TO OBEY THE
OFFICERS.  IF PETITIONERS WERE HELD GUILTY OF VIOLATING THE GEORGIA
STATUTE BECAUSE THEY DISOBEYED THE OFFICERS, THIS CASE FALLS WITHIN THE
RULE THAT A GENERALLY WORDED STATUTE WHICH IS CONSTRUED TO PUNISH
CONDUCT WHICH CANNOT CONSTITUTIONALLY BE PUNISHED IS UNCONSTITUTIONALLY
VAGUE TO THE EXTENT THAT IT FAILS TO GIVE ADEQUATE WARNING OF THE
BOUNDARY BETWEEN THE CONSTITUTIONALLY PERMISSIBLE AND CONSTITUTIONALLY
IMPERMISSIBLE APPLICATIONS OF THE STATUTE.  CF. WINTERS V. NEW YORK,
333 U.S. 507; STROMBERG V. CALIFORNIA, 283 U.S. 359; SEE ALSO COLE V.
ARKANSAS, 333 U.S. 196. 

SECOND, IT IS ARGUED THAT PETITIONERS WERE GUILTY OF A BREACH OF THE
PEACE BECAUSE THEIR ACTIVITY WAS LIKELY TO CAUSE A BREACH OF THE PEACE
BY OTHERS.  THE ONLY EVIDENCE TO SUPPORT THIS CONTENTION IS TESTIMONY
OF ONE OF THE POLICE OFFICERS THAT "THE PURPOSE OF ASKING THEM TO LEAVE
WAS TO KEEP DOWN TROUBLE, WHICH LOOKED LIKE TO ME MIGHT START - THERE
WERE FIVE OR SIX CARS DRIVING AROUND THE PARK AT THE TIME, WHITE
PEOPLE."  BUT THAT OFFICER ALSO STATED THAT THIS "WAS (NOT) UNUSUAL
TRAFFIC FOR THAT TIME OF DAY."  AND THE PARK WAS 50 ACRES IN AREA. 
RESPONDENT CONTENDS THE PETITIONERS WERE FOREWARNED THAT THEIR CONDUCT
WOULD BE HELD TO VIOLATE THE STATUTE.  SEE SAMUELS V. STATE, 103 GA.
APP. 66, 118 S.E.2D 231.  BUT IT IS SUFFICIENT TO SAY AGAIN THAT A
GENERALLY WORDED STATUTE, WHEN CONSTRUED TO PUNISH CONDUCT WHICH CANNOT
BE CONSTITUTIONALLY PUNISHED, IS UNCONSTITUTIONALLY VAGUE.  AND THE
POSSIBILITY OF DISORDER BY OTHERS CANNOT JUSTIFY EXCLUSION OF PERSONS
FROM A PLACE IF THEY OTHERWISE HAVE A CONSTITUTIONAL RIGHT (FOUNDED
UPON THE EQUAL PROTECTION CLAUSE) TO BE PRESENT.  TAYLOR V. LOUISIANA,
370 U.S. 154; GARNER V. LOUISIANA, 368 U.S. 157, 174; SEE ALSO BUCHANAN
V. WARLEY, 245 U.S. 60, 80-81.    THIRD, IT IS SAID THAT THE
PETITIONERS WERE GUILTY OF A BREACH OF THE PEACE BECAUSE A PARK RULE
RESERVED THE PLAYGROUND FOR THE USE OF YOUNGER PEOPLE AT THE TIME. 
HOWEVER, NEITHER THE EXISTENCE NOR THE POSTING OF ANY SUCH RULE HAS
BEEN PROVED.  CF. LAMBERT V. CALIFORNIA, 355 U.S. 225, 228.  THE POLICE
OFFICERS DID NOT INFORM THEM OF IT BECAUSE THEY HAD NO KNOWLEDGE OF ANY
SUCH RULE THEMSELVES.  FURTHERMORE, IT IS CONCEDED THAT THERE WAS NO
SIGN OR PRINTED REGULATION WHICH WOULD GIVE NOTICE OF ANY SUCH RULE. 
UNDER ANY VIEW OF THE FACTS ALLEGED TO CONSTITUTE THE VIOLATION IT
CANNOT BE MAINTAINED THAT PETITIONERS HAD ADEQUATE NOTICE THAT THEIR
CONDUCT WAS PROHIBITED BY THE BREACH OF THE PEACE STATUTE.  IT IS WELL
ESTABLISHED THAT A CONVICTION UNDER A CRIMINAL ENACTMENT WHICH DOES NOT
GIVE ADEQUATE NOTICE THAT THE CONDUCT CHARGED IS PROHIBITED IS
VIOLATIVE OF DUE PROCESS.  LANZETTA V. NEW JERSEY, 306 U.S. 451;
CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385; UNITED STATES V.
COHEN GROCERY CO., 255 U.S. 81; SEE ALSO UNITED STATES V. NATIONAL
DAIRY PRODUCTS CORP., 372 U.S. 29.  REVERSED. 

FN1  THE STATUTE, GA. CODE ANN., 1953, SEC. 26-5301, PROVIDES: 

"UNLAWFUL ASSEMBLIES.  - ANY TWO OR MORE PERSONS WHO SHALL ASSEMBLE
FOR THE PURPOSE OF DISTURBING THE PUBLIC PEACE OR COMMITTING ANY
UNLAWFUL ACT, AND SHALL NOT DISPERSE ON BEING COMMANDED TO DO SO BY A
JUDGE, JUSTICE, SHERIFF, CONSTABLE, CORONER, OR OTHER PEACE OFFICER,
SHALL BE GUILTY OF A MISDEMEANOR." 

FN2  THE GEORGIA COURT REFUSED TO CONSIDER TWO OF THE CONSTITUTIONAL
CLAIMS ASSERTED IN THE DEMURRER.  BUT THESE ALLEGATIONS CHARGED ONLY
UNCONSTITUTIONAL ADMINISTRATION OF THE STATUTE.  IT IS WELL SETTLED IN
GEORGIA THAT THE CONSTITUTIONALITY OF THE STATUTE UPON WHICH THE CHARGE
IS BASED MAY BE ATTACKED BY DEMURRER.  THE GEORGIA SUPREME COURT, OVER
65 YEARS AGO, HELD THAT "UNDER THE GENERAL DEMURRER TO THE ACCUSATION
THE CONSTITUTIONALITY OF THE LAW UNDER WHICH THE ACCUSED WAS ARRAIGNED
IS BROUGHT IN QUESTION."  NEWMAN V. STATE, 101 GA. 534, 536, 28 S.E.
1005 (1897).  THIS RULE WAS LATER QUALIFIED TO REQUIRE THE DEFENDANT TO
SET OUT THE GROUND OF HIS ATTACK WITH PARTICULARITY IN THE DEMURRER. 
SEE, E.G., HENDERSON V. GEORGIA, 123 GA. 465, 466, 51 S.E. 385, 386. 
IN NUMEROUS CASES IT HAS BEEN ASSUMED THAT A CONSTITUTIONAL OBJECTION
ON THE GROUND OF VAGUENESS MAY PROPERLY BE MADE BY DEMURRER.  TEAGUE V.
KEITH, 214 GA. 853, 108 S.E.2D 489; HARRIS V. STATE, 191 GA. 243, 12
S.E.2D 64; CARR V. STATE, 176 GA. 747, 169 S.E. 201; DALTON V. STATE,
176 GA. 645, 169 S.E. 198; CARR V. STATE, 176 GA. 55, 166 S.E. 827, 167
S.E. 103; HUGHES V. STATE BOARD OF MEDICAL EXAMINERS, 162 GA. 246, 134
S.E. 42.  SEE ALSO HENDERSON V. STATE, 113 GA. 1148, 39 S.E. 446.  IN
OTHER CASES THE GEORGIA SUPREME COURT HAS HELD THAT CERTAIN PROCEDURES,
OTHER THAN A DEMURRER, DO NOT CONSTITUTE THE PROPER METHOD TO ATTACK
THE CONSTITUTIONALITY OF THE STATUTE UPON WHICH THE CHARGE OR CLAIM WAS
BASED.  IN EACH OF THESE CASES THE GEORGIA COURT SPECIFICALLY STATED
THAT A DEMURRER WOULD CONSTITUTE A PROPER PROCEDURAL DEVICE.  EAVES V.
STATE, 113 GA. 749, 758, 39 S.E. 318, 321; BOSWELL V. STATE, 114 GA.
40, 41, 39 S.E. 897; HENDRY V. STATE, 147 GA. 260, 265, 93 S.E. 413,
415; STARLING V. STATE, 149 GA. 172, 99 S.E. 619; SAVANNAH ELEC.  CO.
V. THOMAS, 154 GA. 258, 113 S.E. 806; MOORE V. STATE, 194 GA. 672, 22
S.E.2D 510; STONE V. STATE, 202 GA. 203, 42 S.E.2D 727; LOOMIS V.
STATE, 203 GA. 394, 405, 47 S.E.2D 58, 64; FLYNT V. DUMAS, 205 GA. 702,
54 S.E.2D 429; CORBIN V. STATE, 212 GA. 231, 91 S.E.2D 764; RENFROE V.
WALLACE, 214 GA. 685, 107 S.E.2D 225. 

RESPONDENT DOES NOT ARGUE THAT AN ADEQUATE STATE GROUND EXISTS
INSOFAR AS PETITIONERS' CLAIM OF VAGUENESS WAS RAISED IN THE DEMURRER. 

FN3  THE QUESTION ARISES BECAUSE OF THE GEORGIA RULE AGAINST SPEAKING
DEMURRERS, I.E., DEMURRERS WHICH RELY UPON FACTS NOT STATED IN THE
ACCUSATION.  THOUGH THE DEMURRER ITSELF (IN STATING THE CLAIM OF
VAGUENESS) DID NOT SET FORTH NEW FACTS, PETITIONERS' CONSTITUTIONAL
CLAIM IS ESTABLISHED ONLY BY CONSIDERING THE STATE'S EVIDENCE IN
CONNECTION WITH THE ACCUSATION AND THE STATUTE. 

FN4  LEVERETT, HALL, CHRISTOPHER, DAVIS AND SHULMAN, GEORGIA
PROCEDURE AND PRACTICE (1957), 38. 
..END :



WISCONSIN V. FEDERAL POWER COMMISSION 373 U.S. 294 


NO. 72.  ARGUED JANUARY 9, 1963.  - DECIDED MAY 20, 1963.* - 112 U.S.
APP. D.C. 369, 303 F.2D 380, AFFIRMED. 

*TOGETHER WITH NO. 73, CALIFORNIA ET AL. V. FEDERAL POWER COMMISSION
ET AL., AND NO. 74, LONG ISLAND LIGHTING CO. ET AL. V. FEDERAL POWER
COMMISSION ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


UNDER SEC. 5(A) OF THE NATURAL GAS ACT, THE FEDERAL POWER COMMISSION
CONDUCTED A GENERAL INVESTIGATION OF THE LAWFULNESS OF THE RATES
CHARGED BY THE PHILLIPS PETROLEUM CO., AN INDEPENDENT PRODUCER, IN ITS
SALES OF NATURAL GAS IN INTERSTATE COMMERCE.  LATER, THE COMMISSION
CONSOLIDATED WITH THAT INVESTIGATION 12 PROCEEDINGS UNDER SEC. 4(E) OF
THE ACT WHICH INVOLVED THE LAWFULNESS OF CERTAIN RATE INCREASES FILED
BY THE COMPANY UNDER SEC. 4(D) PRIOR TO THE END OF 1956.  AFTER
EXTENSIVE HEARINGS AND THE FILING OF A REPORT BY THE EXAMINER, THE
COMMISSION CONCLUDED THAT THE INDIVIDUAL COMPANY COST-OF-SERVICE METHOD
OF FIXING RATES WAS NOT A WORKABLE METHOD OF FIXING RATES OF
INDEPENDENT PRODUCERS OF NATURAL GAS AND THAT SUCH RATES SHOULD BE
ESTABLISHED ON AN AREA BASIS, RATHER THAN ON AN INDIVIDUAL COMPANY
BASIS.  AS INITIAL STEPS TOWARD THIS END, THE COMMISSION PROMULGATED
AREA-BY-AREA PRICE LEVELS FOR INITIAL INCREASED RATE FILINGS BY
PRODUCERS; STATED THAT, IN THE ABSENCE OF COMPELLING EVIDENCE, IT WOULD
NOT CERTIFICATE INITIAL RATES, AND WOULD SUSPEND INCREASED RATES, WHICH
EXCEEDED THESE PRICE LEVELS; AND ANNOUNCED THAT IT WOULD BEGIN A SERIES
OF HEARINGS, EACH DESIGNED TO COVER A MAJOR PRODUCING AREA.  IT ALSO
TERMINATED TEN OF THE PENDING PROCEEDINGS UNDER SEC. 4(E); LEFT TWO
OTHERS OPEN ONLY FOR LIMITED PURPOSES; AND TERMINATED ITS INVESTIGATION
UNDER SEC.  5(A).  HELD: 

1.  ALTHOUGH THE COMMISSION ANNOUNCED PROSPECTIVELY THAT IT WOULD NOT
ACCEPT FOR FILING FUTURE CONTRACTS CONTAINING SPIRAL ESCALATION
CLAUSES, IT DID NOT ERR IN REFUSING TO REJECT AS VOID AB INITIO CERTAIN
PAST RATE INCREASES BECAUSE THEY WERE BASED ON SUCH CLAUSES.  PP.  303
304. 

2.  THE COMMISSION DID NOT ABUSE ITS DISCRETION IN TERMINATING TEN
PROCEEDINGS UNDER SEC. 4(E) AND IN LEAVING TWO OTHERS OPEN ONLY FOR A
LIMITED PURPOSE, SINCE IT FOUND, ON THE BASIS OF SUBSTANTIAL EVIDENCE,
THAT THE INCREASES DID NOT BRING REVENUES UP TO THE COST OF SERVICE AND
THAT, THEREFORE, NO REFUND OBLIGATION COULD BE IMPOSED, AND SINCE THESE
INCREASES HAD BEEN SUPERSEDED BY SUBSEQUENT INCREASES WHICH (WITH ONE
MINOR EXCEPTION) HAD BEEN SUSPENDED AND MADE THE SUBJECT OF SEPARATE
PROCEEDINGS UNDER SEC. 4(E), WHICH WERE CONTINUING.  PP. 304-307. 

3.  THE COMMISSION DID NOT ABUSE ITS DISCRETION IN TERMINATING ITS
INVESTIGATION UNDER SEC. 5(A) OF THE LAWFULNESS OF THE COMPANY'S
CURRENT RATES.  PP. 307-314. 

WISCONSIN ET AL. V. FEDERAL POWER COMMISSION ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

ALMOST NINE YEARS HAVE PASSED SINCE THIS COURT'S DECISION IN PHILLIPS
PETROLEUM CO. V. WISCONSIN, 347 U.S. 672, HOLDING THAT THE FEDERAL
POWER COMMISSION HAS JURISDICTION OVER THE RATES CHARGED BY AN
INDEPENDENT PRODUCER OF NATURAL GAS.  THE PRESENT CASE, INVOLVING THE
SAME INDEPENDENT PRODUCER, PHILLIPS PETROLEUM (PHILLIPS), (FN1) IS A
SEQUEL TO THAT EARLIER DECISION AND STRIKINGLY ILLUSTRATES THE UNIQUE
PROBLEMS CONFRONTING THE COMMISSION IN ITS EFFORTS TO ACHIEVE THE GOAL
OF EFFECTIVE REGULATION. 

I. 

FOLLOWING THE REMAND IN THE PHILLIPS CASE, THE COMMISSION, PROCEEDING
UNDER SEC. 5(A) OF THE NATURAL GAS ACT, (FN2) REINSTITUTED ITS GENERAL
INVESTIGATION OF THE LAWFULNESS OF PHILLIPS' RATES WITH RESPECT TO ITS
SALES OF NATURAL GAS IN INTERSTATE COMMERCE.  LATER, IT CONSOLIDATED
WITH THAT INVESTIGATION 12 PROCEEDINGS UNDER SEC. 4(E) OF THE ACT (FN3)
WHICH INVOLVED THE LAWFULNESS OF CERTAIN SPECIFIC RATE INCREASES FILED
BY PHILLIPS UNDER SEC. 4(D) BETWEEN JUNE 1954 AND MAY 1956.  ALL OF
THESE RATE INCREASES HAD BEEN SUSPENDED BY THE COMMISSION FOR THE
MAXIMUM FIVE-MONTH PERIOD PERMITTED BY THE STATUTE (SEC. 4(E)) AND HAD
SUBSEQUENTLY GONE INTO EFFECT SUBJECT TO REFUND OF ANY PORTION THAT
MIGHT ULTIMATELY BE FOUND EXCESSIVE (IBID.).  WITH ONE MINOR EXCEPTION,
EACH OF THESE INCREASES HAD BEEN SUPERSEDED BY A SUBSEQUENT INCREASE,
(FN4) ALL OF WHICH WERE IN TURN SUSPENDED AND ARE THE SUBJECT OF
SEPARATE SEC. 4(E) PROCEEDINGS NOT NOW BEFORE US.  (FN5) 

HEARINGS IN THESE CONSOLIDATED PROCEEDINGS DID NOT BEGIN UNTIL JUNE
1956 AND EXTENDED OVER A PERIOD OF ALMOST 18 MONTHS.  ALL PARTIES
PROCEEDED ON THE ASSUMPTION THAT THE LAWFULNESS OF PHILLIPS' RATES WAS
TO BE DETERMINED ON THE BASIS OF ITS JURISDICTIONAL COST OF SERVICE FOR
THE TEST YEAR 1954, (FN6) AND FOUR FULL-SCALE COST-OF-SERVICE STUDIES
WERE PRESENTED.  A COMMISSION EXAMINER IN APRIL 1959 ISSUED A
COMPREHENSIVE DECISION (24 F.P.C. 590) COMPRISING OVER 200 PAGES, IN
WHICH HE FOUND THAT PHILLIPS' JURISDICTIONAL COST OF SERVICE FOR THE
TEST YEAR WAS $57,280,218.  HE THEN ORDERED PHILLIPS TO CALCULATE A
RATE WHICH, WHEN APPLIED TO 1954 VOLUMES, WOULD PRODUCE REVENUES
SUBSTANTIALLY EQUAL TO ITS TEST YEAR COST OF SERVICE.  THIS RATE, WITH
APPROPRIATE ADJUSTMENTS FOR QUALITY, PRESSURE, ETC., WAS TO BE APPLIED
TO ALL OF THE COMPANY'S RATE SCHEDULES ON FILE WITH THE COMMISSION AT
THE TIME OF COMMISSION APPROVAL. 

OVER ONE YEAR LATER, IN SEPTEMBER 1960, THE COMMISSION ISSUED THE
OPINION THAT IS THE SUBJECT OF THE PRESENT LITIGATION.  24 F.P.C. 537. 
ITS BASIC CONCLUSION WAS THAT THE INDIVIDUAL COMPANY COST-OF-SERVICE
METHOD, BASED ON THEORIES OF ORIGINAL COST AND PRUDENT INVESTMENT, WAS
NOT A WORKABLE OR DESIRABLE METHOD FOR DETERMINING THE RATES OF
INDEPENDENT PRODUCERS AND THAT THE "ULTIMATE SOLUTION" LAY IN WHAT HAS
COME TO BE KNOWN AS THE AREA RATE APPROACH:  "THE DETERMINATION OF FAIR
PRICES FOR GAS, BASED ON REASONABLE FINANCIAL REQUIREMENTS OF THE
INDUSTRY" FOR EACH OF THE VARIOUS PRODUCING AREAS OF THE COUNTRY.  24
F.P.C., AT 547.  THIS MEANS THAT RATES WOULD BE ESTABLISHED ON AN AREA
BASIS, RATHER THAN ON AN INDIVIDUAL COMPANY BASIS.  AS INITIAL STEPS
TOWARD THIS END, THE COMMISSION DID TWO THINGS AT THE SAME TIME IT
ISSUED THE OPINION IN THESE PROCEEDINGS.   FIRST, IT PROMULGATED A
STATEMENT OF GENERAL POLICY (S.G.P. 61-1), SINCE AMENDED ON SEVERAL
OCCASIONS, IN WHICH IT SET FORTH AREA-BY-AREA "PRICE LEVELS" FOR
INITIAL AND INCREASED RATE FILINGS BY PRODUCERS, AND STATED THAT IN THE
ABSENCE OF COMPELLING EVIDENCE IT WOULD NOT CERTIFICATE INITIAL RATES,
AND WOULD SUSPEND INCREASED RATES, WHICH EXCEEDED THESE PRICE LEVELS. 
(FN7)  SECOND, THE COMMISSION ANNOUNCED THAT IT WOULD BEGIN A SERIES OF
HEARINGS, EACH DESIGNED TO COVER A MAJOR PRODUCING AREA.  (AT LEAST ONE
OF THESE HEARINGS, INVOLVING THE PERMIAN BASIN, IS NOW WELL UNDER
WAY.) 

THE COMMISSION, IN ITS OPINION HERE, GAVE SEVERAL REASONS FOR
REJECTING AS UNSUITABLE THE INDIVIDUAL COMPANY COST-OF-SERVICE METHOD. 
24 F.P.C., AT 542-548.  IN PARTICULAR IT EMPHASIZED THAT, UNLIKE THE
BUSINESS OF A TYPICAL PUBLIC UTILITY, THE BUSINESS OF PRODUCING NATURAL
GAS INVOLVED NO FIXED, DETERMINABLE RELATIONSHIP BETWEEN INVESTMENT AND
SERVICE TO THE PUBLIC.  A HUGE INVESTMENT MIGHT YIELD ONLY A TRICKLE OF
GAS, WHILE A SMALL INVESTMENT MIGHT LEAD TO A BONANZA.  THUS THE
CONCEPT OF AN INDIVIDUAL COMPANY'S "PRUDENT INVESTMENT," AS A BASIS FOR
CALCULATING RATES THAT WOULD CALL FORTH THE NECESSARY CAPITAL AND ALSO
PROTECT CONSUMERS FROM EXCESSIVE CHARGES, SEEMED WHOLLY OUT OF PLACE. 
FURTHER, THE COMMISSION NOTED THAT THE INDIVIDUAL COMPANY COST-OF
SERVICE METHOD GAVE RISE TO STAGGERING COST ALLOCATION PROBLEMS, COULD
RESULT IN SUCH ANOMALIES AS WIDELY VARYING PRICES FOR GAS COMING FROM A
SINGLE FIELD AND EVEN FROM A SINGLE JOINTLY OWNED WELL, AND WOULD
CREATE AN INTOLERABLE ADMINISTRATIVE BURDEN IN REQUIRING A SEPARATE
RATE DETERMINATION FOR EACH OF THE SEVERAL THOUSAND INDEPENDENT
PRODUCERS. 

RETURNING TO THE PROCEEDINGS BEFORE IT, THE COMMISSION DECIDED THAT,
DESPITE ITS DISAPPROVAL OF THE COST-OF-SERVICE METHOD, THE WHOLE CASE
HAVING BEEN TRIED ON THAT BASIS, A FINAL ADMINISTRATIVE DETERMINATION
OF COST OF SERVICE FOR THE TEST YEAR SHOULD BE MADE.  IT THEN PROCEEDED
TO RESOLVE A NUMBER OF DIFFICULT QUESTIONS, INCLUDING THOSE RELATING TO
ALLOCATION OF PRODUCTION AND EXPLORATION COSTS, ALLOCATION OF COSTS
BETWEEN NATURAL GAS AND EXTRACTED LIQUIDS, AND RATE OF RETURN, AND
ARRIVED AT A SYSTEM-WIDE JURISDICTIONAL COST OF SERVICE FOR THE TEST
YEAR OF $55,548,054 - A FIGURE WHICH SUBSTANTIALLY EXCEEDED
JURISDICTIONAL REVENUES ($45,568,291) FOR THAT YEAR.  (FN8) 

WITH THIS DETERMINATION IN HAND, THE COMMISSION TURNED TO THE
CONSOLIDATED SEC. 4(E) PROCEEDINGS, INVOLVING SPECIFIC RATE INCREASES
FILED THROUGH MAY 1956, AND FOUND THAT THOSE INCREASES HAD PRODUCED
INCREASED REVENUES OF ONLY ABOUT $5,250,000 ANNUALLY, OR CONSIDERABLY
LESS THAN THE TOTAL DEFICIT FOR THE TEST YEAR.  IT ALSO STATED THAT
THERE WAS NOTHING IN THE RECORD TO SHOW THAT ANY OF THE INCREASED RATES
WERE "UNDULY DISCRIMINATORY OR PREFERENTIAL."  IT THEN CONCLUDED THAT
SINCE IT COULD NOT ORDER REFUNDS OF ANY PORTION OF THESE INCREASES, IN
VIEW OF THE CONTINUING DEFICIT, AND SINCE ALL INCREASES HAD BEEN
SUPERSEDED, THERE WOULD BE NO PURPOSE IN CONTINUING THE SEC. 4(E)
PROCEEDINGS AND, WITH TWO EXCEPTIONS, THEY WERE TERMINATED. 

THE TWO EXCEPTIONS CONCERNED RATE INCREASES UNDER "SPIRAL ESCALATION"
CLAUSES IN PHILLIPS' CONTRACTS, (FN9) AND THESE TWO PROCEEDINGS WERE
KEPT OPEN BECAUSE THE PROPER AMOUNT OF THE PARTICULAR INCREASES
DEPENDED ON THE AMOUNT OF INCREASES, IF ANY, ALLOWED TO CERTAIN
PIPELINE CUSTOMERS OF PHILLIPS IN THEIR OWN RATE PROCEEDINGS THEN
PENDING BEFORE THE COMMISSION.  THE COMMISSION REFUSED TO HOLD SUCH
SPIRAL CLAUSES VOID AB INITIO, AND IN FACT A RATE INCREASE IN ONE OF
THE 10 TERMINATED SEC. 4(E) PROCEEDINGS HAD RESULTED FROM THE OPERATION
OF A SPIRAL ESCALATION CLAUSE. 

THE COMMISSION RECOGNIZED THAT THERE REMAINED ALMOST 100 OTHER SEC.
4(E) PROCEEDINGS, INVOLVING INCREASES FILED BY PHILLIPS, THAT HAD NOT
BEEN CONSOLIDATED IN THIS CASE.  IT SAID THAT SINCE THE PRESENT RECORD
INDICATED THAT PHILLIPS' COSTS EXCEEDED REVENUES AT LEAST THROUGH 1958
IT WAS INVITING PHILLIPS TO FILE MOTIONS TO TERMINATE ALL SEC. 4(E)
PROCEEDINGS RELATING TO INCREASES FILED PRIOR TO 1959, THUS LIMITING
FUTURE CONSIDERATION OF PHILLIPS' RATES TO 1959 AND AFTER.  WHETHER
THIS INVITATION HAS BEEN ACCEPTED BY PHILLIPS IS NOT DISCLOSED, BUT IN
ANY EVENT NONE OF THESE OTHER SEC. 4(E) PROCEEDINGS IS BEFORE US NOW. 

TURNING TO THE SEC. 5(A) INVESTIGATION OF THE LAWFULNESS OF PHILLIPS'
EXISTING RATES, THE COMMISSION FIRST NOTED THAT THERE WAS CONSIDERABLE
DISAGREEMENT OVER HOW THESE RATES SHOULD BE SET - WHETHER THEY SHOULD
BE APPROXIMATELY UNIFORM THROUGHOUT THE COUNTRY OR SHOULD VARY FROM
AREA TO AREA.  IT THEN SAID THAT IT WAS AWARE THAT BOTH COSTS AND
PRICES HAD GREATLY INCREASED SINCE 1954 (AND ESPECIALLY AFTER 1958) AND
IT THEREFORE DID NOT "DEEM IT APPROPRIATE TO PRESCRIBE OR REQUIRE THAT
PHILLIPS FILE RATES FOR THE FUTURE BASED UPON THE PRESENT RECORD."  24
F.P.C., AT 575-576.  CONCLUDING THAT THE PUBLIC WOULD BE ADEQUATELY
PROTECTED BY PHILLIPS' POTENTIAL REFUND OBLIGATIONS UNDER SEC. 4(E), BY
THE AREA PRICING STANDARDS ANNOUNCED IN THE STATEMENT OF GENERAL
POLICY, AND BY THE AREA RATE PROCEEDINGS TO BE INITIATED, THE
COMMISSION ORDERED THE TERMINATION OF THE PRESENT SEC. 5(A)
INVESTIGATION. 

ON APPLICATION FOR REHEARING, THE COMMISSION REJECTED THE SUGGESTION
THAT IT SHOULD REOPEN THE CASE FOR SUBMISSION OF 1959 COST DATA.  24
F.P.C. 1008.  IT SAID THAT THE "INTEREST OF CONSUMERS AND THE
EXIGENCIES OF REGULATION WILL BE BETTER SERVED IN RATE PROCEEDINGS
BROUGHT ON AN AREA BASIS RATHER THAN ON AN INDIVIDUAL COMPANY BASIS,"
AND THAT THE AREA METHOD WOULD LEAD TO "MORE EFFECTIVE AND EXPEDITIOUS
REGULATION OF THE PRODUCER SALES."  24 F.P.C., AT 1009.  IT ALSO
REJECTED THE CLAIM THAT IT HAD ERRED IN TERMINATING THE SEC. 4(E)
PROCEEDINGS BECAUSE SOME OF THE INCREASED RATES WERE IN EXCESS OF THE
AVERAGE UNIT COST OF SERVICE, REITERATING THAT THERE HAD BEEN NO
SHOWING OF UNDUE DISCRIMINATION OR PREFERENCE AND THAT THE TOTAL
REVENUE RESULTING FROM THE INCREASES DID NOT MAKE UP THE DEFICIT SHOWN
BY THE TEST YEAR DETERMINATION. 

ON REVIEW, THE COURT OF APPEALS, IN A THOROUGH AND INFORMATIVE
OPINION, AFFIRMED THE DECISION OF THE COMMISSION.  112 U.S. APP. D.C.
369, 303 F.2D 380.  JUDGE FAHY, DISSENTING IN PART, ARGUED THAT WHETHER
OR NOT THE AREA RATE METHOD OF RATE REGULATION WAS THE ULTIMATE
SOLUTION, THE COMMISSION HAVING GONE SO FAR IN THIS PROCEEDING SHOULD
HAVE FINISHED IT BY DECIDING ON A COST-OF-SERVICE BASIS THE JUSTNESS
AND REASONABLENESS OF PHILLIPS' PAST INCREASES AND OF ITS PRESENT
RATES.  TO HAVE FAILED TO DO SO, HE BELIEVED, WAS A CLEAR ABUSE OF
DISCRETION.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THIS
CASE IN THE ADMINISTRATION AND FUTURE OPERATION OF THE NATURAL GAS
ACT.  369 U.S. 870. 

THE ARGUMENTS OF THE PARTIES, BOTH IN THEIR BRIEFS AND AT THE BENCH,
HAVE COVERED A BROAD RANGE OF SUBJECTS, INCLUDING A NUMBER OF OTHER
ADMINISTRATIVE ACTIONS AND PROCEEDINGS - PAST, PRESENT, AND FUTURE -
THAT ARE NOT BEFORE US TODAY.  WE LAY THESE COLLATERAL SUBJECTS TO ONE
SIDE AND FOCUS ON THE THREE PRECISE QUESTIONS THAT HAVE BEEN BROUGHT
HERE FOR REVIEW:  WHETHER THE COMMISSION ERRED (1) IN REFUSING TO
REJECT CERTAIN INCREASED RATES BECAUSE THEY WERE BASED ON SPIRAL
ESCALATION CLAUSES; (2) IN TERMINATING THE 10 CONSOLIDATED SEC. 4(E)
PROCEEDINGS INVOLVING INCREASES NOW SUPERSEDED AND IN LEAVING TWO SUCH
PROCEEDINGS OPEN ONLY FOR A LIMITED PURPOSE; OR (3) IN DISCONTINUING
THE SEC. 5(A) INVESTIGATION OF THE LAWFULNESS OF PHILLIPS' CURRENT
RATES.  OF THESE THREE QUESTIONS, WHICH WILL BE CONSIDERED IN THE ORDER
STATED, THE THIRD IS THE ONLY ONE VIGOROUSLY PRESSED BY ALL PETITIONERS
AND IS CLEARLY THE PRINCIPAL ISSUE IN THE CASE. 

                                    II. 

CALIFORNIA, ALONE AMONG THE PETITIONERS, CHALLENGES THE COMMISSION'S
REFUSAL TO DECLARE VOID AB INITIO THE SPIRAL ESCALATION CLAUSES IN
PHILLIPS' CONTRACTS ON WHICH RATE INCREASES IN THREE OF THE 12 SEC.
4(E) DOCKETS WERE BASED.  (FN10)  SUCH CLAUSES, CALIFORNIA CONTENDS,
ARE MANIFESTLY INCONSISTENT WITH THE PUBLIC INTEREST, BECAUSE THEY
CONSTITUTE A PRICE MECHANISM BY WHICH "CONSUMERS OF NATURAL GAS ARE
CAUGHT IN A MAELSTROM." 

BUT WE HAVE AT LEAST GRAVE DOUBTS THAT THIS QUESTION MAY BE RAISED BY
CALIFORNIA AT THIS TIME.  AS TO TWO OF THE THREE DOCKETS, THE CLAIM
WOULD APPEAR PREMATURE, SINCE THE DOCKETS ARE STILL PENDING, AND THE
INCREASES THERE INVOLVED MAY EVENTUALLY BE DISALLOWED IF THE PIPELINE
INCREASES ON WHICH THEY DEPEND ARE THEMSELVES DISALLOWED BY THE
COMMISSION.  AS TO THE THIRD DOCKET, THE PARTICULAR INCREASE HAS BEEN
MADE FULLY EFFECTIVE BY TERMINATION OF THE SEC. 4(E) PROCEEDING, BUT
SINCE THE SALE IN QUESTION IS TO THE MICHIGAN-WISCONSIN PIPELINE AND
APPEARS TO AFFECT NO CALIFORNIA INTERESTS, NO ONE WHOM CALIFORNIA MAY
PROPERLY REPRESENT IS "AGGRIEVED" (SEC. 19(B)) (FN11) BY THE
COMMISSION'S ORDER. 

FURTHER, WE SEE NO MERIT IN CALIFORNIA'S CONTENTION.  IT IS TRUE THAT
THE COMMISSION HAS ANNOUNCED PROSPECTIVELY THAT IT WOULD NOT ACCEPT FOR
FILING CONTRACTS CONTAINING SUCH CLAUSES, (FN12) BUT IT WOULD HAVE BEEN
QUITE A DIFFERENT MATTER FOR THE COMMISSION TO HAVE DECLARED THAT PAST
RATE INCREASES WERE INEFFECTIVE SIMPLY BECAUSE THEY WERE BASED ON
SPIRAL PROVISIONS.  THE EFFECT OF A CONTRACT CLAUSE OF THIS TYPE, OF
COURSE, IS ONLY TO PERMIT THE PRODUCER TO RESORT TO THE FILING
PROVISIONS OF SEC. 4(D) OF THE ACT.  IF THE INCREASE IS CHALLENGED, THE
PRODUCER MUST STILL ESTABLISH ITS LAWFULNESS WHOLLY APART FROM THE
TERMS OF THE CONTRACT.  THUS WE HAVE SUSTAINED THE RIGHT OF A SELLER TO
FILE AN INCREASE UNDER A CONTRACT WHICH, IN EFFECT, AUTHORIZED HIM TO
DO SO AT ANY TIME.  UNITED GAS PIPE LINE CO. V. MEMPHIS LIGHT, GAS AND
WATER DIVISION, 358 U.S. 103.  THE SPIRAL CLAUSES HERE ARE FAR MORE
LIMITED IN SCOPE, DEPENDING AS THEY DO ON THE OCCURRENCE OF EXTERNAL
EVENTS.                                            III. 

THE CLAIM THAT THE COMMISSION ERRED IN TERMINATING 10 SEC. 4(E)
DOCKETS, AND LEAVING TWO OTHERS OPEN ONLY FOR A LIMITED PURPOSE, IS
PRESSED PRIMARILY BY WISCONSIN AND NEW YORK.  IN CONSIDERING THEIR
CONTENTIONS, IT SHOULD BE NOTED AGAIN THAT ALL OF THE RATE INCREASES
INVOLVED WERE FILED PRIOR TO THE END OF 1956, AND HAVE SINCE BEEN
SUPERSEDED OR "LOCKED IN" BY SUBSEQUENT INCREASES (FN13) WHICH, WITH
ONE EXCEPTION, HAVE BEEN SUSPENDED AND MADE THE SUBJECT OF SEPARATE
SEC. 4(E) PROCEEDINGS. 

THE COMMISSION'S TERMINATION OF THESE SEC. 4(E) DOCKETS WAS A
DECISION ON THE MERITS.  IT WAS BASED ON THE FINDING THAT THE ANNUAL
INCREASE IN REVENUE PRODUCED BY THESE INCREASED RATES WAS SUBSTANTIALLY
LESS THAN THE DEFICIT FOR THE TEST YEAR 1954.  PETITIONERS' PRINCIPAL
OBJECTION APPEARS TO BE THAT PHILLIPS' OVERALL, AND UNIT (PER MCF.),
REVENUES INCREASED SO SUBSTANTIALLY THAT THEY MAY HAVE EXCEEDED COSTS
DURING THE 1955-1959 PERIOD FOR WHICH THE INCREASES WERE ALLOWED.  BUT
THE FACT IS THAT PHILLIPS' AVERAGE UNIT REVENUES DURING THIS PERIOD
NEVER ROSE SIGNIFICANTLY ABOVE ITS TEST YEAR UNIT REVENUE REQUIREMENTS
AS DETERMINED BY THE COMMISSION.  (FN14)  MOREOVER, PETITIONERS DO NOT
CLAIM, NOR COULD THEY ON THIS RECORD, THAT THE TEST YEAR COST OF
SERVICE WAS HIGHER PER UNIT THAN IN SUBSEQUENT YEARS.  AND ASSUMING
THAT UNIT COSTS DID NOT DECLINE, IT IS CLEAR THAT THE INCREASES HERE
DID NOT EVEN BRING UNIT REVENUES UP TO THOSE UNIT COSTS.  WHETHER OTHER
SUBSEQUENT INCREASES INVOLVED IN SEPARATE PROCEEDINGS NOT BEFORE US
RESULTED IN REVENUES EXCEEDING COST OF SERVICE IN LATER YEARS HAS NO
EFFECT ON THE PROPRIETY OF TERMINATING THESE SEC. 4(E) DOCKETS.  THUS
THE FACTORS THAT MAY HAVE MADE THE RECORD STALE FOR PURPOSES OF
DETERMINING IN THE SEC. 5(A) INVESTIGATION WHETHER PHILLIPS' PRESENT
RATES ARE UNJUST OR UNREASONABLE DO NOT MAKE THE RECORD STALE FOR
PURPOSES OF DETERMINING THE LAWFULNESS OF THESE PAST INCREASES. 

PETITIONERS ALSO CLAIM THAT THE COMMISSION TERMINATED THE SEC. 4(E)
PROCEEDINGS IMPROPERLY BECAUSE IT FAILED TO MAKE ANY FINDING THAT THE
INCREASED RATES IN QUESTION WERE JUST AND REASONABLE.  BUT THIS
CONTENTION GOES TO THE FORM AND NOT THE SUBSTANCE OF WHAT THE
COMMISSION DID.  SINCE THESE INCREASED RATES WERE "LOCKED IN," THEIR
VALIDITY FOR THE FUTURE WAS NOT AT ISSUE; THE SOLE QUESTION WAS WHETHER
ALL OR ANY PART OF THE INCREASES HAD TO BE REFUNDED BY PHILLIPS. 
HAVING DECIDED ON THE BASIS OF SUBSTANTIAL EVIDENCE THAT THE INCREASES
DID NOT BRING REVENUES UP TO COST OF SERVICE, THE COMMISSION PROPERLY
CONCLUDED, ON THE ONLY MATTER BEFORE IT WITH RESPECT TO THESE DOCKETS,
THAT NO REFUND OBLIGATION COULD BE IMPOSED. 

IT WAS URGED ON REHEARING BEFORE THE COMMISSION, AND IN THE COURT
BELOW, THAT SOME OF THE INCREASED RATES WERE ABOVE AVERAGE COST OF
SERVICE AND THAT AT MOST THE COMMISSION SHOULD HAVE TERMINATED ONLY
THOSE SEC. 4(E) DOCKETS IN WHICH THE INCREASED RATES DID NOT EXCEED THE
AVERAGE UNIT COST OF SERVICE.  THE COMMISSION REJECTED THIS CONTENTION,
STATING THAT PHILLIPS' RATES WOULD NORMALLY VARY GREATLY BECAUSE SALES
WERE MADE AT WIDELY SEPARATED POINTS AND UNDER DIFFERENT CONDITIONS,
AND THAT THERE WAS LITTLE OR NOTHING TO BE GAINED BY ENTERING A
PROTRACTED INVESTIGATION OF ALLOCATION OF COSTS TO PARTICULAR PAST
RATES "WHEN IT IS ALREADY KNOWN THAT PHILLIPS WAS NOT EARNING ITS WHOLE
COST OF SERVICE."  24 F.P.C., AT 1009. 

WE BELIEVE THIS CONCLUSION WAS JUSTIFIED, (FN15) AND PETITIONERS
APPEAR TO HAVE ALL BUT ABANDONED THE THEORY THAT SOME OF THE SEC. 4(E)
DOCKETS WERE IMPROPERLY TERMINATED MERELY BECAUSE THE PARTICULAR
INCREASED RATES IN THOSE DOCKETS EXCEEDED AVERAGE COST.  RATHER, THEY
NOW URGE THAT THE VARIATION IN THE INCREASED RATES WAS SO GREAT AS TO
COMPEL THE CONCLUSION THAT THEY WERE "DISCRIMINATORY AND PREFERENTIAL
PER SE."  THE COMMISSION NOTED THAT THERE WAS NOTHING IN THE RECORD TO
SHOW UNLAWFUL DISCRIMINATION, AND IT IS CLEAR THAT MERE DIFFERENCES IN
RATES UNDER THIS ACT ARE NOT PER SE UNLAWFUL.  BUT IN ANY EVENT, WE
NEED NOT REACH THE MERITS OF THE CLAIM OF DISCRIMINATION BECAUSE IT IS
NOT PROPERLY BEFORE US.  IT WAS NOT PRESENTED TO THE COURT BELOW, NOR
WAS IT ADEQUATELY RAISED ON APPLICATION TO THE COMMISSION FOR
REHEARING, A STEP REQUIRED BY SEC. 19(B) OF THE ACT IN ORDER TO
PRESERVE A POINT FOR JUDICIAL REVIEW.  SEE, E.G., SUNRAY MID-CONTINENT
OIL CO. V. FEDERAL POWER COMM'N, 364 U.S. 137, 157. 

                                IV. 

THE FINAL QUESTION IS WHETHER THE COMMISSION WAS JUSTIFIED IN
TERMINATING THE SEC. 5(A) INVESTIGATION OF THE REASONABLENESS OF
PHILLIPS' CURRENT RATES.  PRELIMINARILY, IT IS IMPORTANT TO OBSERVE
THAT THE COMMISSION'S ACCOMPLISHMENTS SINCE THE ORIGINAL PHILLIPS CASE,
THE VALIDITY OF THE STATEMENT OF GENERAL POLICY 61-1, THE ACTIONS TAKEN
PURSUANT TO IT, AND THE LAWFULNESS OF THE AREA PRICING METHOD ARE NOT
THEMSELVES BEFORE THE COURT FOR REVIEW.  TO A LIMITED EXTENT, HOWEVER,
THESE MATTERS DO BEAR UPON THE PROPRIETY OF THE COMMISSION'S DECISION
TO TERMINATE THIS SEC. 5(A) PROCEEDING. 

AS THE PETITIONERS RECOGNIZE, THE ISSUE IS WHETHER THE TERMINATION
CONSTITUTED AN ABUSE OF DISCRETION, A DISCRETION WHICH IN GENERAL IS
BROAD BUT WHICH THE PETITIONERS URGE IS A GOOD DEAL NARROWER IN A
PROCEEDING THAT HAS GONE THIS FAR THAN IN THE CASE OF A DECISION
WHETHER OR NOT TO INITIATE AN INQUIRY.  SEE MINNEAPOLIS GAS CO. V.
FEDERAL POWER COMM'N, 111 U.S. APP. D.C. 16, 294 F.2D 212.  UNDERLYING
PETITIONERS' POSITION ARE THEIR CLAIMS THAT THE RESULT OF THE
TERMINATION IS LITTLE OR NO EFFECTIVE REGULATION IN THE INTERIM PERIOD
BEFORE THE DEVELOPMENT OF AREA RATE REGULATION, THAT SUCH REGULATION
MAY TAKE MANY YEARS TO EVOLVE, AND THAT THE METHOD MAY EVENTUALLY BE
HELD INVALID. 

1.  THE PETITIONERS ARE NOT OF ONE MIND AS TO THE FEASIBILITY AND
LAWFULNESS OF THE AREA RATE METHOD OF REGULATION, ALTHOUGH NO ONE
QUESTIONS THE COMMISSION'S RIGHT TO UNDERTAKE THE EXPERIMENT. 
CALIFORNIA APPEARS TO COME CLOSEST TO THE VIEW THAT THE INDIVIDUAL
COMPANY COST-OF-SERVICE METHOD IS THE ONLY LAWFUL BASIS FOR RATE
REGULATION AND THAT THE INVALIDITY OF THE AREA APPROACH IS THEREFORE
PREDICTABLE.  IF WE BELIEVED THAT SUCH A DEPARTURE FROM PRESENT
CONCEPTS HAD LITTLE, IF ANY, CHANCE OF BEING SUSTAINED, WE WOULD BE
HARD PRESSED TO SAY THAT THE COMMISSION HAD NOT ABUSED ITS DISCRETION
IN TERMINATING THIS SEC. 5(A) PROCEEDING WHILE UNDERTAKING THE AREA
EXPERIMENT.  FOR IF THE AREA REGULATION WERE ALMOST SURE TO FAIL, AND
IF THE INDIVIDUAL COMPANY COST-OF-SERVICE METHOD OF DETERMINING THE
REASONABLENESS OF RATES HAD BEEN ABANDONED, THEN THERE WOULD BE
VIRTUALLY NO FORESEEABLE PROSPECT OF EFFECTIVE REGULATION.  DIFFICULT
AS THE PROBLEMS OF COST-OF-SERVICE REGULATION MAY BE, THEY WOULD NOT
WARRANT A BREAKDOWN OF THE ADMINISTRATIVE PROCESS. 

BUT TO DECLARE THAT A PARTICULAR METHOD OF RATE REGULATION IS SO
SANCTIFIED AS TO MAKE IT HIGHLY UNLIKELY THAT ANY OTHER METHOD COULD BE
SUSTAINED WOULD BE WHOLLY OUT OF KEEPING WITH THIS COURT'S CONSISTENT
AND CLEARLY ARTICULATED APPROACH TO THE QUESTION OF THE COMMISSION'S
POWER TO REGULATE RATES.  IT HAS REPEATEDLY BEEN STATED THAT NO SINGLE
METHOD NEED BE FOLLOWED BY THE COMMISSION IN CONSIDERING THE JUSTNESS
AND REASONABLENESS OF RATES, FEDERAL POWER COMM'N V. NATURAL GAS
PIPELINE CO., 315 U.S. 575; FEDERAL POWER COMM'N V. HOPE NATURAL GAS
CO., 320 U.S. 591; COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMM'N,
324 U.S. 581, AND WE REAFFIRM THAT PRINCIPLE TODAY.  AS THE COURT SAID
IN HOPE: 

"WE HELD IN FEDERAL POWER COMMISSION V. NATURAL GAS PIPELINE CO.,
SUPRA, THAT THE COMMISSION WAS NOT BOUND TO THE USE OF ANY SINGLE
FORMULA OR COMBINATION OF FORMULAE IN DETERMINING RATES.  ITS
RATEMAKING FUNCTION, MOREOVER, INVOLVES THE MAKING OF 'PRAGMATIC
ADJUSTMENTS.'  ID., P. 586.  AND WHEN THE COMMISSION'S ORDER IS
CHALLENGED IN THE COURTS, THE QUESTION IS WHETHER THAT ORDER 'VIEWED IN
ITS ENTIRETY' MEETS THE REQUIREMENTS OF THE ACT.  ID., P. 586.  UNDER
THE STATUTORY STANDARD OF 'JUST AND REASONABLE' IT IS THE RESULT
REACHED NOT THE METHOD EMPLOYED WHICH IS CONTROLLING."  320 U.S., AT
602. 

MORE SPECIFICALLY, THE COURT HAS NEVER HELD THAT THE INDIVIDUAL
COMPANY COST-OF-SERVICE METHOD IS A SINE QUA NON OF NATURAL GAS RATE
REGULATION.  INDEED THE PRUDENT INVESTMENT, ORIGINAL COST, RATE BASE
METHOD WHICH WE ARE NOW TOLD IS LAWFUL, ESTABLISHED, AND EFFECTIVE IS
THE VERY ONE THE COURT WAS ASKED TO DECLARE IMPERMISSIBLE IN THE HOPE
CASE, LESS THAN 20 YEARS AGO. 

TO WHATEVER EXTENT THE MATTER OF COSTS MAY BE A REQUISITE ELEMENT IN
RATE REGULATION, WE HAVE NO INDICATION THAT THE AREA METHOD WILL FALL
SHORT OF STATUTORY OR CONSTITUTIONAL STANDARDS.  THE COMMISSION HAS
STATED IN ITS OPINION IN THIS PROCEEDING THAT THE GOAL IS TO HAVE RATES
BASED ON THE "REASONABLE FINANCIAL REQUIREMENTS OF THE INDUSTRY" IN
EACH PRODUCTION AREA, 24 F.P.C., AT 547, AND WE WERE ADVISED AT ORAL
ARGUMENT THAT COMPOSITE COST-OF-SERVICE DATA WILL BE CONSIDERED IN THE
AREA RATE PROCEEDINGS.  SURELY, WE CANNOT SAY THAT THE RATES TO BE
DEVELOPED IN THESE PROCEEDINGS WILL IN ALL LIKELIHOOD BE SO HIGH AS TO
DEPRIVE CONSUMERS, OR SO LOW AS TO DEPRIVE PRODUCERS, OF THEIR RIGHT TO
A JUST AND REASONABLE RATE.  (FN16) 

WE RECOGNIZE THE UNUSUAL DIFFICULTIES INHERENT IN REGULATING THE
PRICE OF A COMMODITY SUCH AS NATURAL GAS.  (FN17)  WE RESPECT THE
COMMISSION'S CONSIDERED JUDGMENT, BACKED BY SOUND AND PERSUASIVE
REASONING, THAT THE INDIVIDUAL COMPANY COST-OF-SERVICE METHOD IS NOT A
FEASIBLE OR SUITABLE ONE FOR REGULATING THE RATES OF INDEPENDENT
PRODUCERS.  WE SHARE THE COMMISSION'S HOPES THAT THE AREA APPROACH MAY
PROVE TO BE THE ULTIMATE SOLUTION. 

2.  THIS IS NOT A CASE IN WHICH THE COMMISSION HAS WALKED RIGHT UP TO
THE LINE AND THEN REFUSED TO CROSS IT - A CASE, IN OTHER WORDS, IN
WHICH ALL THE EVIDENCE NECESSARY TO A DETERMINATION HAD BEEN RECEIVED
BUT THE DETERMINATION WAS NOT MADE.  HERE, THE COMMISSION CONCLUDED
THAT THE RECORD, RELATING TO THE TEST YEAR 1954, WAS TOO STALE IN 1960
TO PERMIT A FINDING AS TO THE JUSTNESS AND REASONABLENESS OF PHILLIPS'
CURRENT RATES.  IN VIEW OF THIS INADEQUACY, AND SINCE THE COMMISSION
MUST ESTABLISH THE UNLAWFULNESS OF PRESENT RATES BEFORE TAKING FURTHER
ACTION IN A SEC. 5(A) PROCEEDING, CONTINUATION OF THE PROCEEDING WOULD
HAVE REQUIRED REMANDING THE CASE FOR THE RECEIPT OF EVIDENCE AS TO
COSTS IN AT LEAST ONE SUBSEQUENT TEST YEAR.  NONE OF THE PETITIONERS
SPECIFICALLY CHALLENGES THE COMMISSION'S CONCLUSION THAT, FOR SEC. 5(A)
PURPOSES, THE RECORD WAS STALE IN 1960; A FORTIORI IT IS STALE TODAY. 
(FN18) 

THUS THE QUESTION WHETHER THE COMMISSION ABUSED ITS DISCRETION IN
TERMINATING THE PROCEEDING MUST BE MEASURED AGAINST THE ONLY
ALTERNATIVE:  REMANDING FOR ADDITIONAL EVIDENCE.  SUCH A REMAND
UNDOUBTEDLY WOULD HAVE CONSUMED CONSIDERABLE TIME AND ENERGY, INCLUDING
THAT OF THE COMMISSION AND ITS STAFF, AND WOULD ALMOST CERTAINLY HAVE
INVOLVED ANOTHER DECISION BY A HEARING EXAMINER, ANOTHER APPEAL TO THE
COMMISSION, ANOTHER PETITION FOR REHEARING AND FURTHER JUDICIAL REVIEW
OF COMPLEX AND DIFFICULT ISSUES.  IN SHORT, THE ALTERNATIVE REJECTED BY
THE COMMISSION WOULD NOT HAVE RESULTED IN DEFINITIVE REGULATION OF
PHILLIPS' RATES IMMEDIATELY OR IN THE NEAR FUTURE.  INDEED, SEVERAL
YEARS MIGHT HAVE ELAPSED BEFORE EVEN THE METHOD OF REGULATION WHICH THE
COMMISSION REGARDS AS UNSUITABLE WOULD HAVE BECOME EFFECTIVE AS TO EVEN
THIS ONE PRODUCER. 

3.  IT IS CONTENDED THAT, AS A RESULT OF THE DECISION TO TERMINATE
THIS SEC. 5(A) PROCEEDING, THE PUBLIC WILL RECEIVE SIGNIFICANTLY LESS
PROTECTION AGAINST THE CHARGING OF EXCESSIVE PRICES BY PHILLIPS (AND
OTHERS) IN THE INTERIM PERIOD BEFORE THE AREA METHOD SEES THE LIGHT OF
DAY.  WERE THIS THE CASE, IT WOULD BEAR IMPORTANTLY ON OUR REVIEW OF
THE COMMISION'S EXERCISE OF ITS DISCRETION.  BUT IN THIS CONNECTION
SEVERAL FACTORS SHOULD BE NOTED.  FIRST, THE RECORD BEFORE US DOES NOT
PAINT A PICTURE OF THE PUBLIC INTEREST SACRIFICED ON THE ALTAR OF
PRIVATE PROFIT.  INDICATIONS ARE THAT AT LEAST UNTIL 1959 PHILLIPS'
JURISDICTIONAL REVENUES DID NOT CATCH UP TO ITS COST OF SERVICE. 
ALTHOUGH REVENUES INCREASED SUBSTANTIALLY AFTER THAT TIME, THE
COMMISSION OBSERVED THAT COSTS HAVE ALSO RISEN DRAMATICALLY, AND WE
HAVE NO BASIS FOR ASSUMING THAT CURRENT RATES ARE GROSSLY
UNREASONABLE. 

SECOND, MOST OF PHILLIPS' INCREASED RATES NOW IN EFFECT ARE THE
SUBJECT OF PENDING SEC. 4(E) PROCEEDINGS AND ARE THUS BEING COLLECTED
SUBJECT TO REFUND.  REFUND OBLIGATIONS, IT IS TRUE, DO NOT PROVIDE AS
MUCH PROTECTION AS THE ELIMINATION OF UNREASONABLE RATES, SEE FEDERAL
POWER COMM'N V. TENNESSEE GAS TRANSMISSION CO., 371 U.S. 145, 154-155,
BUT THEY ARE UNDOUBTEDLY SIGNIFICANT AND CANNOT BE IGNORED, AS SOME OF
THE PETITIONERS WOULD HAVE US DO. 

THIRD, IT IS CLEAR THAT SINCE THE COMMISSION'S DECISION IN THIS
PROCEEDING, THE UPWARD TREND IN PRODUCER PRICES HAS BEEN SUBSTANTIALLY
ARRESTED, AND IN AT LEAST ONE IMPORTANT AREA THE TREND HAS ACTUALLY
BEEN DOWNWARD.  (FN19)  ALTHOUGH THE STATEMENT OF GENERAL POLICY DID
NOT PURPORT TO ESTABLISH JUST AND REASONABLE RATES, SEE NOTE 7, SUPRA,
THE PRICE LEVELS DECLARED IN THAT STATEMENT, ALONG WITH IMPLEMENTATION
OF THE PROGRAM THERE ANNOUNCED, APPEAR TO HAVE PLAYED A SIGNIFICANT
ROLE IN ACCOMPLISHING THIS RESULT. 

FOURTH, IT MUST BE REMEMBERED THAT THE PROBLEM OF THIS TRANSITIONAL
PERIOD WOULD STILL EXIST IF THE PRESENT SEC. 5(A) PROCEEDING WERE
REOPENED FOR THE TAKING OF NEW EVIDENCE; THERE IS NO WAY OF PREDICTING
HOW MUCH TIME WOULD BE REQUIRED FOR A FINAL DECISION TO BE RENDERED,
BUT IT WOULD INEVITABLY BE SUBSTANTIAL.  IT IS THEREFORE EVIDENT THAT
THE CHOICE IS NOT BETWEEN PROTECTION OR NO PROTECTION.  THERE WILL IN
EITHER EVENT BE SOME PROTECTION, THOUGH DOUBTLESS WITH ROOM FOR
IMPROVEMENT, FOR SEVERAL YEARS.    PETITIONERS CLAIM THAT FORCING THE
COMMISSION TO REOPEN THIS SEC. 5(A) INVESTIGATION WILL NOT UNDULY DELAY
AREA RATE PROCEEDINGS AND WILL IN FACT PROVIDE USEFUL INFORMATION FOR
AREA RATE-MAKING PURPOSES.  THE COMMISSION, WITH EQUAL VIGOR, STATES
THAT IT DOES NOT HAVE THE FACILITIES TO REOPEN THIS CASE (AND ALL
OTHERS THAT HAVE REACHED APPROXIMATELY THE SAME STAGE) AND AT THE SAME
TIME TO PROCEED EXPEDITIOUSLY WITH ITS AREA INVESTIGATIONS.  IT
ESTIMATES THAT THE PERMIAN BASIN AREA PROCEEDINGS, A CASE INVOLVING
SOME 35% OF PHILLIPS' JURISDICTIONAL SALES AND ROUGHLY 10% OF SALES BY
ALL PRODUCERS, WILL BE COMPLETED IN ABOUT THE SAME TIME THAT WOULD BE
REQUIRED TO COMPLETE A REMANDED SEC. 5(A) PROCEEDING RELATING TO
PHILLIPS ALONE.  IT WARNS THAT IF IT IS REQUIRED TO REOPEN THIS AND
SIMILAR PROCEEDINGS, THE RESULT MAY BE TO DELAY UNDULY THE AREA
INVESTIGATIONS, WHILE COMPELLING ADHERENCE TO A METHOD THE COMMISSION
DEEMS UNWORKABLE, THUS PROVIDING SIGNIFICANTLY LESS PROTECTION FOR THE
PUBLIC BOTH IN THE LONG AND THE SHORT RUN. 

THE COURT CANNOT RESOLVE THIS DISPUTE AGAINST THE COMMISSION AND TELL
IT THAT IT HAS MADE AN ERROR OF LAW - ABUSED ITS DISCRETION - IN
DECIDING HOW BEST TO ALLOCATE ITS RESOURCES.  THE CASE MIGHT BE
DIFFERENT IF THE AREA APPROACH HAD LITTLE OR NO CHANCE OF BEING
SUSTAINED; IF THE PRESENT RECORD WERE NOW RIPE FOR DETERMINATION OF
REASONABLE RATES FOR PHILLIPS ON AN INDIVIDUAL COMPANY COST-OF-SERVICE
BASIS; OR IF IT WERE MANIFEST THAT THE PUBLIC WOULD RECEIVE
SIGNIFICANTLY LESS PROTECTION IN THE INTERIM PERIOD THAN IF THE
PROCEEDING HAD NOT BEEN TERMINATED.  BUT AS WE HAVE ALREADY CONCLUDED,
NONE OF THESE CONDITIONS EXISTS, AND IN THEIR ABSENCE A REVERSAL OF THE
COMMISSION WOULD BE A SHEER ACT OF INTERFERENCE IN THE DETAILS OF THE
ADMINISTRATIVE PROCESS.  INDEED, IT MIGHT WELL HAVE THE EFFECT OF
POSTPONING EVEN FURTHER THE TIME WHEN EFFECTIVE REGULATION WILL BE
REALIZED. 

FINALLY, THE FACT THAT THE COMMISSION IN THIS CASE TERMINATED THE
SEC. 5(A) PROCEEDINGS, RATHER THAN MERELY HOLDING THEM IN ABEYANCE AS
IT DID IN HUNT OIL CO., 28 F.P.C. 623, (FN20) IS A CIRCUMSTANCE OF NO
SIGNIFICANCE.  AT THE ORAL ARGUMENT GENERAL COUNSEL FOR THE COMMISSION
ASSURED US THAT THE COMMISSION REMAINS FREE TO REACTIVATE THE
INVESTIGATION OF PHILLIPS' INDIVIDUAL RATES IF THE AREA PROCEEDINGS ARE
UNDULY DELAYED OR IF CIRCUMSTANCES SHOULD OTHERWISE WARRANT.  THE
DISTINCTION BETWEEN TERMINATION AND SUSPENSION OF THE SEC.  5(A)
PROCEEDINGS IS THUS ONE OF FORM AND NOT OF SUBSTANCE.  IN EITHER EVENT
THE COMMISSION RETAINS THE FLEXIBILITY IT MUST HAVE AT THIS STILL
FORMATIVE PERIOD IN A DIFFICULT AREA OF RATE REGULATION.  AFFIRMED. 

FN1  PHILLIPS IS A LARGE INTEGRATED OIL COMPANY WHICH IS ALSO A
PRODUCER OF NATURAL GAS.  IT IS KNOWN AS AN "INDEPENDENT" IN THAT IT
DOES NOT ENGAGE IN THE INTERSTATE GAS PIPELINE BUSINESS AND IS NOT
AFFILIATED WITH ANY INTERSTATE GAS PIPELINE COMPANY. 

FN2  SECTION 5(A) OF THE NATURAL GAS ACT, 52 STAT. 823, 15 U.S.C.
SEC. 717DA), PROVIDES: 

"WHENEVER THE COMMISSION, AFTER A HEARING HAD UPON ITS OWN MOTION OR
UPON COMPLAINT OF ANY STATE, MUNICIPALITY, STATE COMMISSION, OR GAS
DISTRIBUTING COMPANY, SHALL FIND THAT ANY RATE, CHARGE, OR
CLASSIFICATION DEMANDED, OBSERVED, CHARGED OR COLLECTED BY ANY NATURAL
GAS COMPANY IN CONNECTION WITH ANY TRANSPORTATION OR SALE OF NATURAL
GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR THAT ANY RULE,
REGULATION, PRACTICE, OR CONTRACT AFFECTING SUCH RATE, CHARGE, OR
CLASSIFICATION IS UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR
PREFERENTIAL, THE COMMISSION SHALL DETERMINE THE JUST AND REASONABLE
RATE, CHARGE, CLASSIFICATION, RULE, REGULATION, PRACTICE, OR CONTRACT
TO BE THEREAFTER OBSERVED AND IN FORCE, AND SHALL FIX THE SAME BY
ORDER:  PROVIDED, HOWEVER, THAT THE COMMISSION SHALL HAVE NO POWER TO
ORDER ANY INCREASE IN ANY RATE CONTAINED IN THE CURRENTLY EFFECTIVE
SCHEDULE OF SUCH NATURAL GAS COMPANY ON FILE WITH THE COMMISSION,
UNLESS SUCH INCREASE IS IN ACCORDANCE WITH A NEW SCHEDULE FILED BY SUCH
NATURAL GAS COMPANY; BUT THE COMMISSION MAY ORDER A DECREASE WHERE
EXISTING RATES ARE UNJUST, UNDULY DISCRIMINATORY, PREFERENTIAL,
OTHERWISE UNLAWFUL, OR ARE NOT THE LOWEST REASONABLE RATES." 

FN3  SECTION 4(E) OF THE NATURAL GAS ACT, 52 STAT. 823, AS AMENDED,
76 STAT. 72, 15 U.S.C. (SUPP. IV) SEC. 717CE), PROVIDES: 

"WHENEVER ANY SUCH NEW SCHEDULE IS FILED THE COMMISSION SHALL HAVE
AUTHORITY  ...  TO ENTER UPON A HEARING CONCERNING THE LAWFULNESS OF
SUCH RATE, CHARGE, CLASSIFICATION, OR SERVICE; AND, PENDING SUCH
HEARING AND THE DECISION THEREON, THE COMMISSION, UPON FILING WITH SUCH
SCHEDULES AND DELIVERING TO THE NATURAL-GAS COMPANY AFFECTED THEREBY A
STATEMENT IN WRITING OF ITS REASONS FOR SUCH SUSPENSION, MAY SUSPEND
THE OPERATION OF SUCH SCHEDULE AND DEFER THE USE OF SUCH RATE, CHARGE,
CLASSIFICATION, OR SERVICE, BUT NOT FOR A LONGER PERIOD THAN FIVE
MONTHS BEYOND THE TIME WHEN IT WOULD OTHERWISE GO INTO EFFECT; AND
AFTER FULL HEARINGS, EITHER COMPLETED BEFORE OR AFTER THE RATE, CHARGE,
CLASSIFICATION, OR SERVICE GOES INTO EFFECT, THE COMMISSION MAY MAKE
SUCH ORDERS WITH REFERENCE THERETO AS WOULD BE PROPER IN A PROCEEDING
INITIATED AFTER IT HAD BECOME EFFECTIVE.  IF THE PROCEEDING HAS NOT
BEEN CONCLUDED AND AN ORDER MADE AT THE EXPIRATION OF THE SUSPENSION
PERIOD, ON MOTION OF THE NATURAL-GAS COMPANY MAKING THE FILING, THE
PROPOSED CHANGE OF RATE, CHARGE, CLASSIFICATION, OR SERVICE SHALL GO
INTO EFFECT.   WHERE INCREASED RATES OR CHARGES ARE THUS MADE
EFFECTIVE, THE COMMISSION MAY, BY ORDER, REQUIRE THE NATURAL-GAS
COMPANY TO FURNISH A BOND, TO BE APPROVED BY THE COMMISSION, TO REFUND
ANY AMOUNTS ORDERED BY THE COMMISSION, TO KEEP ACCURATE ACCOUNTS IN
DETAIL OF ALL AMOUNTS RECEIVED BY REASON OF SUCH INCREASE, SPECIFYING
BY WHOM AND IN WHOSE BEHALF SUCH AMOUNTS WERE PAID, AND, UPON
COMPLETION OF THE HEARING AND DECISION, TO ORDER SUCH NATURAL-GAS
COMPANY TO REFUND, WITH INTEREST, THE PORTION OF SUCH INCREASED RATES
OR CHARGES BY ITS DECISION FOUND NOT JUSTIFIED.  AT ANY HEARING
INVOLVING A RATE OR CHARGE SOUGHT TO BE INCREASED, THE BURDEN OF PROOF
TO SHOW THAT THE INCREASED RATE OR CHARGE IS JUST AND REASONABLE SHALL
BE UPON THE NATURAL-GAS COMPANY, AND THE COMMISSION SHALL GIVE TO THE
HEARING AND DECISION OF SUCH QUESTIONS PREFERENCE OVER OTHER QUESTIONS
PENDING BEFORE IT AND DECIDE THE SAME AS SPEEDILY AS POSSIBLE." 

FN4  THE EXCEPTION INVOLVES AN ANNUAL INCREASE OF $21,234, AND WE ARE
ADVISED BY PHILLIPS THAT THIS INCREASE HAS SINCE BEEN SUPERSEDED BY A
LATER FILING, NOT SUSPENDED BY THE COMMISSION. 

FN5  AN INCREASED RATE WHICH IS LATER SUPERSEDED BY A FURTHER
INCREASE IS THUS EFFECTIVE ONLY FOR THE LIMITED INTERVENING PERIOD,
CALLED THE "LOCKED-IN" PERIOD, AND RETAINS SIGNIFICANCE IN SEC. 4(E)
PROCEEDINGS ONLY IN RESPECT OF ITS REFUNDABILITY IF FOUND UNLAWFUL. 
SEE, INFRA, PP. 304-305. 

FN6  THE PHRASE "JURISDICTIONAL COST OF SERVICE" AS USED HERE MEANS
THE PRODUCER'S SYSTEM-WIDE COST OF SERVICE (I.E., ALL OPERATING
EXPENSES, INCLUDING DEPRECIATION, DEPLETION, AND TAXES, PLUS A FAIR
RETURN ON THE RATE BASE) FOR ITS SALES OF NATURAL GAS SUBJECT TO THE
COMMISSION'S JURISDICTION.   THE "TEST YEAR 1954" MEANS THE CALENDAR
YEAR 1954, WITH ADJUSTMENTS FOR CERTAIN CHANGES IN COSTS AND INCREASES
IN REVENUES THROUGH 1956.  NO CHALLENGE IS HERE MADE BY EITHER SIDE TO
ANY ASPECT OF THE COMMISSION'S DETERMINATION OF PHILLIPS'
JURISDICTIONAL COST OF SERVICE FOR THE TEST YEAR. 

FN7  THE STATEMENT OF GENERAL POLICY, AS ORIGINALLY ISSUED, APPEARS
AT 25 FED. REG.  9578.  IT WAS ISSUED WITHOUT NOTICE OR HEARING, AND
THE COMMISSION EXPRESSLY STATED THAT THE PRICE LEVELS WERE "FOR THE
PURPOSE OF GUIDANCE AND INITIAL ACTION BY THE COMMISSION AND THEIR USE
WILL NOT DEPRIVE ANY PARTY OF SUBSTANTIVE RIGHTS OR FIX THE ULTIMATE
JUSTNESS AND REASONABLENESS OF ANY RATE LEVEL." 

FN8  ON REHEARING, THE COST OF SERVICE WAS REDETERMINED TO BE
$54,525,315, OR 11.1009 CENTS PER MCF, SUBJECT TO CERTAIN NECESSARY
ADJUSTMENTS FOR PURCHASED GAS COSTS, GATHERING TAXES, AND ROYALTIES. 
THESE ADJUSTMENTS WOULD INCREASE THE AVERAGE UNIT COST TO ABOUT 12.16
CENTS PER MCF. 

FN9  THESE CLAUSES PROVIDED THAT WHEN A SPECIFIED COMMODITY PRICE
INDEX INCREASED BY MORE THAN A CERTAIN NUMBER OF POINTS, AND A GENERAL
INCREASE IN A PHILLIPS PIPELINE CUSTOMER'S RESALE RATES HAD GONE INTO
EFFECT, THEN PHILLIPS' RATES TO THAT CUSTOMER COULD BE PROPORTIONALLY
INCREASED. 

FN10  SEE NOTE 9, SUPRA. 

FN11  52 STAT. 831, AS AMENDED, 15 U.S.C. SEC. 717RB). 

FN12  BY ORDER NOS. 232, 26 FED. REG. 1983, AND 232A, 26 FED. REG.
2850, THE COMMISSION ANNOUNCED THAT SPIRAL ESCALATION CLAUSES CONTAINED
IN CONTRACTS EXECUTED ON OR AFTER APRIL 3, 1961, WOULD BE INOPERATIVE
AND WITHOUT EFFECT.  BY ORDER NO. 242, 27 FED. REG.  1356, THE
COMMISSION ANNOUNCED THAT CONTRACTS CONTAINING SUCH CLAUSES WOULD BE
UNACCEPTABLE FOR FILING ON OR AFTER APRIL 2, 1962. 

FN13  SEE NOTE 5, SUPRA. 

FN14  PHILLIPS' TEST YEAR UNIT REVENUE REQUIREMENTS, ON THE BASIS OF
THE COMMISSION'S DETERMINATIONS, WERE ABOUT 12.16 CENTS PER MCF.  SEE
NOTE 8, SUPRA.  DATA FROM PHILLIPS' ANNUAL REPORTS, FILED WITH THE
COMMISSION, SHOW AVERAGE JURISDICTIONAL REVENUES AS FOLLOWS:  8.9 CENTS
(1955); 9.4 CENTS (1956); 9.9 CENTS (1957); 11.1 CENTS (1958); 12.3
CENTS (1959). 

FN15  WE FIND NO NECESSARY INCONSISTENCY BETWEEN THIS DETERMINATION
AND THE COMMISSION'S RECENT DECISION IN HUNT OIL CO., 28 F.P.C. 623, IN
WHICH THE COMMISSION REMANDED SEC. 4(E) PROCEEDINGS FOR THE TAKING OF
ADDITIONAL EVIDENCE AND STATED: 

"OUR EXAMINATION OF THE RECORD IN THIS CASE CONVINCES US THAT
INCREASED RATES FOR SPECIFIC SALES CANNOT ALWAYS BE FOUND TO BE JUST
AND REASONABLE SOLELY ON THE BASIS OF A COMPARISON OF INDIVIDUAL
COMPANY-WIDE COSTS WITH THAT COMPANY'S REVENUES IN A TEST YEAR."  28
F.P.C., AT 626. 

THE RECORD IN THE HUNT CASE IS NOT BEFORE US, BUT IT IS EVIDENT FROM
THE COMMISSION'S OPINION THAT, UNLIKE THE PRESENT CASE, CERTAIN
INCREASED RATES THERE INVOLVED WERE NOT "LOCKED IN" AND WERE HIGHER
THAN THE CURRENTLY PREVAILING RATES IN THE PRODUCTION AREA.  THUS THE
FACTORS THAT MAY HAVE MERITED LIMITED SUPPLEMENTATION OF THE RECORD IN
THAT CASE WITH RESPECT TO THE SEC. 4(E) PROCEEDINGS WERE NOT PRESENT
HERE.  IT SHOULD ALSO BE NOTED THAT IN HUNT, AS HERE, THE COMMISSION
DECIDED NOT TO PURSUE THE BROAD SEC. 5(A) INQUIRY INTO THE LAWFULNESS
OF ALL OF THE PRODUCER'S PRESENT RATES.  SEE P. 314, INFRA. 

FN16  WE DO NOT INTERPRET THE DECISION OF THE COURT OF APPEALS IN
DETROIT V. FEDERAL POWER COMM'N, 97 U.S. APP. D.C. 260, 230 F.2D 810,
TO SUGGEST THAT, IN THE VIEW OF THAT COURT, INDIVIDUAL COMPANY COST OF
SERVICE IS THE METHOD REQUIRED TO BE USED IN INDEPENDENT NATURAL GAS
PRODUCER RATE REGULATION.  THE COURT DID EXPRESS THE VIEW THAT, IN
CONSIDERING THE PRICE WHICH A PIPELINE COULD CHARGE FOR GAS PRODUCED
FROM ITS OWN WELLS, COST OF SERVICE MUST BE USED "AT LEAST AS A POINT
OF DEPARTURE."  97 U.S. APP. D.C., AT 268, 230 F.2D, AT 818.  WHATEVER
THE COURT MAY HAVE MEANT IN THAT CONTEXT, IT IS CLEAR THAT IT DID NOT
HAVE BEFORE IT ANY QUESTIONS RELATING TO THE AREA RATE METHOD, AND IT
IS INTERESTING TO NOTE THAT JUDGE FAHY, THE AUTHOR OF THE DETROIT
OPINION, SAID IN HIS OPINION BELOW IN THIS CASE:  "WE SHOULD NOT SEEK
TO DETER THE COMMISSION FROM PURSUING SUCH A METHOD (THE AREA METHOD)
IN FUTURE PROCEEDINGS, OR FROM USING IT IN ANY PROCEEDINGS ALREADY
INITIATED ALONG THOSE LINES."  112 U.S. APP. D.C., AT 379, 303 F.2D, AT
390.  SEE ALSO PANHANDLE EASTERN PIPE LINE CO. V. FEDERAL POWER COMM'N,
113 U.S. APP. D.C. 94, 305 F.2D 763. 

FN17  SEE THE DISCUSSION IN THE OPINIONS OF MR. JUSTICE JACKSON IN
FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591, 628-660,
AND IN COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMM'N, 324 U.S.
581, 608-615. 

FN18  THE FACT THAT THIS RECORD MAY HAVE BEEN STALE BY THE TIME THE
COMMISSION RENDERED ITS DECISION CERTAINLY DOES NOT MEAN THAT NO RATE
PROCEEDING CAN BE DECIDED BEFORE THE RECORD BECOMES OUT OF DATE.  THIS
PILOT PROCEEDING WAS ONE OF UNUSUAL LENGTH AND COMPLEXITY, AND THE
COMMISSION NOTED THAT BOTH COSTS AND REVENUES "INCREASED GREATLY"
BETWEEN THE TEST YEAR AND THE YEAR OF DECISION.  THE COMMISSION HAS
PRESUMABLY LEARNED A GREAT DEAL IN THIS CASE WHICH WILL BE OF USE TO IT
IN THE AREA PROCEEDINGS, AND THERE IS NO REASON TO SUPPOSE THAT THOSE
PROCEEDINGS WILL BE RENDERED INCAPABLE OF DECISION BY THE MARCH OF
TIME. 

FN19  THE AREA IS SOUTH LOUISIANA, AND THE DOWNWARD TREND IS DUE IN
PART TO SETTLEMENT OF CERTAIN RATE CASES AND THE ORDERING OF
SUBSTANTIAL REFUNDS. 

FN20  IN HUNT, THE COMMISSION SAID:  "IT IS OUR HOPE THAT AREA
PROCEEDINGS WILL RESULT IN A TIMELY DETERMINATION OF HUNT'S RATES FOR
THE FUTURE.  HOWEVER, IN ORDER TO ASSURE ADEQUATE PROTECTION TO
CONSUMERS AGAINST ANY UNREASONABLY HIGH RATES OF HUNT WHICH MAY NOT BE
SUBJECT TO AN EARLY DETERMINATION ON AN AREA BASIS WE WILL HOLD IN
ABEYANCE FURTHER ACTION ON THE 5(A) ASPECTS OF THE CASE PENDING AREA
RATE DETERMINATIONS, WITH THE UNDERSTANDING THAT 5(A) PROCEEDINGS ON
SOME OR ALL OF HUNT'S RATES MAY BE SUBJECT TO REACTIVATION IF FUTURE
CIRCUMSTANCES SHOULD SO DICTATE."  28 F.P.C., AT 626. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK AND
MR. JUSTICE BRENNAN JOIN, DISSENTING.    THE SISYPHEAN LABORS OF THE
COMMISSION CONTINUE AS IT MARCHES UP THE HILL OF PRODUCER REGULATION
ONLY TO TUMBLE DOWN AGAIN WITH LITTLE UNDERTAKEN AND LESS DONE.  AFTER
16 YEARS WITHOUT REGULATION UNDER THE ACT, RESULTING FROM THE
COMMISSION'S POSITION THAT IT HAD NO JURISDICTION OVER THE PRODUCTION
OF GAS, THIS COURT DECIDED PHILLIPS PETROLEUM CORP. V. WISCONSIN, 347
U.S. 672 (1954).  (FN1)  THE COURT THERE CHARGED THE COMMISSION WITH
SUPERVISION OVER PHILLIPS' OPERATING EXPENSES, BOTH PRODUCING AND
GATHERING, AND DIRECTED THE COMMISSION TO FIX A JUST AND REASONABLE
RATE FOR THE SALE OF PHILLIPS' GAS.  FIVE YEARS LATER THE PRESIDING
EXAMINER DETERMINED PHILLIPS' 1954 COST OF SERVICE TO BE 11.662 CENTS
PER MCF.  AND ALLOWED IT A 9.25% RATE OF RETURN.  HE DIRECTED AND
PHILLIPS FILED A PRELIMINARY RATE PER MCF.  FOR 1954 AND AN ADJUSTED
RATE FOR SUBSEQUENT YEARS.  A YEAR AND A HALF LATER THE COMMISSION
HANDED DOWN ITS DECISION.  IT FOUND PHILLIPS' 1954 COST OF SERVICE TO
BE 11.1009 CENTS PER MCF.  (FN2) AND DETERMINED THAT A FAIR RETURN
WOULD BE 11%.  IT FOUND PHILLIPS' JURISDICTIONAL REVENUES SUBSTANTIALLY
LESS IN 1954 THAN THESE ALLOWABLES AND, CONTRA TO THE RECOMMENDATION OF
THE EXAMINER AND ITS OWN STAFF, IT TERMINATED ALL SAVE TWO OF THE SEC.
4(E) PROCEEDINGS, DISCHARGED PHILLIPS FROM FURTHER REFUND OBLIGATION
THEREUNDER AND DISMISSED ITS OWN SEC. 5 INVESTIGATION OF THESE AND
SUBSEQUENT RATES COVERING SOME 95 SUBSTANTIAL RATE INCREASES MADE BY
PHILLIPS.  IN ADDITION, IT ASSUMED FROM THESE 1954 FIGURES THAT THE
RATES WERE "PROBABLY" NOT EXCESSIVE THROUGH 1958 AND INVITED MOTIONS TO
DISMISS THESE PROCEEDINGS, THUS APPROVING EXISTING AND INCREASED RATES
FOR THE 1955-1959 PERIOD ON THE SOLE BASIS OF 1954 COSTS AND REVENUES. 
IT ALSO CONCLUDED THAT THERE WAS "NOTHING IN THE RECORD TO SHOW THAT
THESE PAST RATES  ...  ARE UNDULY DISCRIMINATORY OR PREFERENTIAL," 24
F.P.C., AT 576, DESPITE THE FACT THAT THEY VARIED FROM 5.5 CENTS PER
MCF.  TO 13.5 CENTS, WITH ONE AT 17 CENTS PER MCF.  BUT THIS IS NOT
ALL.  CONCURRENTLY WITH THIS ACTION THE COMMISSION ISSUED SUA SPONTE A
STATEMENT OF GENERAL POLICY NO. 61-1, 24 F.P.C. 818, 25 FED. REG. 9578,
IN WHICH IT DISCARDED ITS LONG-ESTABLISHED COST METHOD IN FAVOR OF AN
AREA BASIS OF FIXING RATES.  IT PROMULGATED TWO LISTS OF AREA PRICES,
ONE COVERING INITIAL RATES UNDER SEC. 7 CERTIFICATES AND ANOTHER FOR
INCREASING RATES FOR GAS SOLD UNDER EXISTING CONTRACTS SUBJECT TO SEC.
4(E).  IN ARRIVING AT THESE PRICE LEVELS THE COMMISSION SAID THAT IT
CONSIDERED "ALL OF THE RELEVANT FACTS AVAILABLE TO US," INCLUDING COST
INFORMATION, "EXISTING AND HISTORICAL PRICE STRUCTURES, VOLUMES OF
PRODUCTION, TRENDS IN PRODUCTION, PRICE TRENDS IN THE VARIOUS AREAS
OVER A NUMBER OF YEARS, TRENDS IN EXPLORATION AND DEVELOPMENT, TRENDS
IN DEMANDS, AND THE AVAILABLE MARKET FOR THE GAS."  24 F.P.C., AT 819. 
FOR THE NEW GAS LEVEL SEC. 7 CERTIFICATION PRICE, THERE CAN BE NO DOUBT
THAT THE LEVEL ESTABLISHED AS A GUIDE IS THE HIGHEST PERMANENTLY
CERTIFICATED RATE IN THE RESPECTIVE AREAS AS OF SEPTEMBER 1960.  THE
OTHER GAS LEVEL ANNOUNCED (FOR SEC.  4(E) CONTRACTS) WAS BUT THE
AVERAGE WEIGHTED PRICE FOR GAS SOLD FROM THE RESPECTIVE AREAS IN 1959. 
IT IS THEREFORE ACCURATE TO SAY THAT BOTH LEVELS WERE BASED ON EXISTING
PRICE STRUCTURES AS OF SEPTEMBER 1960, I.E., AVERAGED FIELD PRICES. 
THE EXAMINER, CONTRARY TO THE COMMISSION, HAD FOUND THE COST METHOD NOT
ONLY MORE ACCURATE BUT ENTIRELY FEASIBLE, AND, IN COMPARISON WITH THE
AREA METHOD, NO MORE DELAYING.  THE PARTIES THEMSELVES, INCLUDING
PHILLIPS, CONCURRED IN THE CONCLUSION THAT PHILLIPS' RATES SHOULD BE
DETERMINED BY THE EXAMINER ON THE BASIS OF ITS OVER-ALL COST OF
SERVICE.  NEVERTHELESS THE COMMISSION HELD TO THE CONTRARY AND, IN
ADDITION, ISSUED THE STATEMENT OF POLICY AND ACCOMPANYING PRICE LEVELS
WITHOUT NOTICE, HEARING OR RECORD AND HAS SINCE AMENDED THEM SEVERAL
TIMES IN LIKE MANNER.  IN THIS SUMMARY FASHION THE COMMISSION JUNKED
ITS COST-OF-SERVICE REGULATION PROGRAM, WASTER A HALF-DOZEN YEARS OF
WORK THEREON AND IS NOW EXPERIMENTING WITH A NEW, UNTRIED, UNTESTED,
INCHOATE PROGRAM WHICH, IN ADDITION, IS OF DOUBTFUL LEGALITY.  (FN3)
AS A CONSEQUENCE THE CONSUMERS OF GAS ALL OVER THE UNITED STATES AND
PARTICULARLY IN THE LARGE METROPOLITAN CITIES OF THE EASTERN SEABOARD,
THE MIDWEST AND THE WEST COAST WILL PAY FOR THE COMMISSION'S AREA
PRICING WILD-GOOSE CHASE.  I PREDICT THAT IN THE END THE CONSUMER WILL
FIND HIMSELF TO BE THE BIGGEST GOOSE OF THE HUNT AND THE SMALL PRODUCER
THE DEAD DUCK. 

I CANNOT LET THIS PASS WITHOUT SAYING THAT, AS A RESULT OF THE
COURT'S APPROVAL OF THE COMMISSION'S ACTION HERE, THE GAS CONSUMERS OF
THIS COUNTRY WILL SUFFER IRRETRIEVABLE LOSS AMOUNTING TO BILLIONS OF
DOLLARS.  I SHALL NOW OFFER A FEW EXAMPLES IN THE COMMISSION'S RATE
BASE CALCULATION OF 1954 THAT SUPPORT THIS CONCLUSION. 

             I. GROSS ERRORS IN THE COST OF SERVICE COMPUTATIONS. 

AS THE COURT HAS POINTED OUT, THE COMMISSION TERMINATED NOT ONLY THE
SEC. 5(A) PROCEEDING BUT ALSO 10 CONSOLIDATED SEC. 4(E) PROCEEDINGS
AGAINST PHILLIPS, THE LATTER ON THE GROUND THAT THE REVENUE RECEIVED BY
IT FOR THE PERIODS INVOLVED WAS LESS THAN COST OF SERVICE.  IN VIEW OF
THIS DISPOSITION IT IS NECESSARY, ASIDE FROM THE CONTENTION THAT THERE
WAS NO BASIS FOR DISMISSAL OF THOSE PROCEEDINGS COVERING YEARS
SUBSEQUENT TO 1954 ON THAT YEAR'S FINDINGS, FOR US TO EXAMINE THE BASIS
OF ITS COST-OF-SERVICE FINDINGS FOR 1954.  THE DISMISSAL ORDERS ARE ALL
PREDICATED UPON THE 1954 COST OF SERVICE AND IF IT BE ERRONEOUS THE
WHOLE BASIS FOR THE ORDERS OF DISMISSAL FALLS.  THUS, WHILE THE
PETITIONERS HAVE NOT HERE ARGUED THE SPECIFIC CHALLENGES RAISED BEFORE
THE COMMISSION AND THE COURT OF APPEALS, THEIR CONTENTION THAT THE
COMMISSION ABUSED ITS DISCRETION IN TERMINATING THE SEC. 4(E)
PROCEEDINGS NECESSARILY INCLUDES THE QUESTION OF THE VALIDITY OF THE
DETERMINATION OF COST OF SERVICE.  IN ADDITION, THE LIKELIHOOD THAT THE
COURT'S AFFIRMANCE WILL BE REGARDED AS AN APPROVAL OF THESE HIGHLY
QUESTIONABLE STANDARDS FOR COST-OF-SERVICE DETERMINATION, THUS
FOSTERING THEIR APPLICATION IN OTHER CASES, CALLS FOR DISCUSSION OF
THEM. 

ASIDE FROM ITS DIRECT EXPENDITURE FOR PURCHASED GAS (FN4) THE LARGEST
SINGLE ITEM IN PHILLIPS' COST APPEARS TO BE ITS EXPLORATION AND
DEVELOPMENT EXPENSE, WHICH WAS ALLOWED IN THE AMOUNT OF SOME
$58,313,230 BEFORE ALLOCATION.  WE FIRST EXAMINE IT AND OTHER ITEMS
GOING INTO COST OF SERVICE. 

(A) EXPLORATION AND DEVELOPMENT, DEPLETION ALLOWANCE, ALLOCATION AND
INTEREST COSTS.  - EXPLORATION AND DEVELOPMENT EXPENSE FOR 1954 ON THE
BOOKS OF THE COMPANY WAS $47,474,039, INCLUDING UNDEVELOPED LEASE
RENTALS, DRILLING TOOLS, EXPIRED AND SURRENDERED LEASES, DRY HOLES AND
LAND AND GEOLOGICAL ACTIVITIES.  ON THESE EXPENDITURES A "RETURN AND
TAXES" ITEM WAS ALLOWED OF $10,839,194.  WHY THE CONSUMER SHOULD PAY ON
THESE ITEMS, PARTICULARLY "DRY HOLES" ($11,306,964), EXPIRED AND
SURRENDERED LEASES ($9,479,898) AND UNDEVELOPED OFFSHORE LEASES
($17,765,332) IS A MATTER FOR THE EXPERTS; BUT IT APPEARS TO ME THAT
SINCE PHILLIPS CHARGED OFF THE DRY HOLES IN ITS TAXES AND THE CONSUMERS
GOT NOTHING WHATEVER IN 1954 FROM EXPIRED AND SURRENDERED LEASES AND
UNDEVELOPED OFFSHORE LEASES, SUCH EXPENSE SHOULD NOT BE INCLUDED IN THE
RATE BASE.  THIS EXPENSE ALONE AMOUNTED TO 4.281 CENTS PER MCF.  OF THE
TOTAL ALLOWED COST OF SERVICE OF 11.1009 CENTS.  MOREOVER, IN THIS
CONNECTION, PHILLIPS ALSO ENJOYED A TAX DEPLETION ALLOWANCE OF 27 1/2%
ON ALL GAS PRODUCTION.  THIS ALLOWANCE FOR THE YEAR 1954 WAS
$44,784,723, GIVING PHILLIPS A TAX SAVING OF OVER $20,000,000.  THIS
LATTER SUM WAS INCLUDED IN THE RATE BASE.  HOWEVER, DEPLETION IS
ALLOWED AS AN INCENTIVE TO EXPLORATION AND CERTAINLY ITS SAVINGS SHOULD
BE DEDUCTED FROM PHILLIPS' TOTAL EXPENSE IN THIS REGARD.  SINCE THE
BOOK DEFICIT BETWEEN TOTAL REVENUE AND COST OF SERVICE FOR 1954 WAS
$8,900,000 IT APPEARS THAT A CORRECTION OF THIS ITEM ALONE WOULD TURN
THAT DEFICIT INTO A NICE PROFIT. 

(B)  ALLOCATION OF COST BETWEEN OIL AND GAS.  - MUCH OF THE GAS
PRODUCED FOR INTERSTATE SALE IS "ASSOCIATED GAS," I.E., IT IS PRODUCED
ALONG WITH OIL AND IS KNOWN AS CASING-HEAD GAS.  FIFTY-SEVEN PERCENT OF
PHILLIPS' GAS PRODUCTION IS ASSOCIATED GAS BUT IT ACCOUNTED FOR ONLY
13.42% OF ITS COMBINED REVENUE.  IN ADDITION SOME WELLS PRODUCE
CONDENSATE LIQUIDS AND CONDENSATE GAS WHICH MUST BE SEPARATED THROUGH
GASOLINE PLANTS.  THE QUESTION IS HOW MUCH OF THE EXPENSE OF
EXPLORATION, OPERATION, ETC., OF WELLS SHOULD BE CHARGEABLE TO GAS. 
PHILLIPS USED A B.T.U. METHOD WHICH ALLOCATED 61.88% OF THE EXPENSE TO
GAS.  THE COMMISSION CUT THIS TO 32.742%, EQUIVALENT TO 4.281 CENTS PER
MCF.  THE EXAMINER HAD RECOMMENDED 30.46% WHILE THE WISCONSIN EXPERTS
CAME UP WITH 20.812% AND PACIFIC WITH 23.98%.  AS IS NOTED ABOVE ONLY
13.42% OF PHILLIPS' CONBINED REVENUE COMES FROM ASSOCIATED GAS WHILE
86.58% COMES FROM OIL.  STILL THE COMMISSION HAS ALLOCATED ALMOST ONE
THIRD OF THE EXPLORATION COST TO GAS, WHICH ONLY BRINGS IN ONE-SEVENTH
OF THE COMBINED REVENUE.  THIS IS A MOST IMPORTANT ITEM SINCE EACH 1%
SHIFT MEANS OVER A HALF MILLION DOLLARS IN THE RATE BASE. 

(C)  PURCHASED GAS.  - IF ALLOWED INCREASED RATES PHILLIPS SAYS ITS
COST OF GAS WILL RISE AUTOMATICALLY UNDER ITS PERCENTAGE TYPE PURCHASE
CONTRACTS.  THIS ITEM OF $1,671,733 WAS DISALLOWED BY THE EXAMINER
SINCE THE SUPPLIERS WERE NOT SHOWN TO HAVE BEEN ENTITLED TO ANY
INCREASE.  AS THE COMMISSION POINTS OUT AN INCREASE IN RATE WOULD NOT
INCREASE THE PERCENTAGE PHILLIPS WAS OBLIGATED TO PAY.  IT WOULD
REQUIRE PHILLIPS TO PAY THE PRO-RATA INCREASE IN RATES DUE ON
PERCENTAGE GAS, BUT IT RECOUPS THIS PLUS A PROFIT WHEN THAT GAS IS
SOLD.  I SUBMIT, AS THE EXAMINER FOUND, THAT THE ALLOWANCE OF THIS
MILLION AND A HALF IN THE COST BASIS IS ERRONEOUS.  INCREASES THROUGH
AUTOMATIC ESCALATOR CLAUSES - WHICH EFFECT THE SAME RESULT - ARE NOT
PERMITTED BECAUSE NOT BASED ON ANY INCREASE IN COST OF PRODUCTION.  IN
APPROVING THIS PRACTICE IN PERCENTAGE CONTRACTS THE COMMISSION CREATES
A PERFECT LOOPHOLE FOR THESE PRODUCERS AND INVITES MORE CONTRACTS OF
THIS NATURE. 

(D)  INTEREST.  - EXPENSE FOR MONEY BORROWED FOR 1954 AMOUNTED TO
$9,892,308.  ON ITS TAX RETURN PHILLIPS CLAIMED AN ALLOWANCE OF ONLY
$3,743,077.  THIS VARIANCE IN COST OF MONEY SEEMS TO HAVE OCCURRED BY
REASON OF AN EXCHANGE OF PHILLIPS' OUTSTANDING BONDS FOR COMMON STOCK. 
THE COMMISSION ALLOWED THE LARGER FIGURE ON THE BASIS THAT IT WAS A
"KNOWN CHANGE" THAT PROBABLY WOULD NOT OCCUR IN OTHER YEARS.  IT IS
INTERESTING TO NOTE THAT THE "KNOWN CHANGE" THEORY WAS NOT APPLIED TO
THE "SAN JUAN TRANSFER" MADE IN 1955.  (FN5)  IF APPLIED THERE IT WOULD
HAVE MADE A DIFFERENCE AGAINST PHILLIPS OF SOME $8,000,000 IN ITS 1954
RATE BASE.  CERTAINLY COMMON FAIRNESS WOULD REQUIRE THE APPLICATION OF
THE "KNOWN CHANGE" THEORY TO ALL CASES, NOT SIMPLY AN ISOLATED ONE. 

IT IS READILY APPARENT THAT THE COMMISSION'S COST-OF-SERVICE
CALCULATIONS FOR 1954 ARE FULL OF HOLES.  IN ADDITION, ASSUMING, AS I
DO NOT, THAT THE 1954 COST IS CORRECT THE COMMISSION SHOULD NOT BE
PERMITTED TO EXTEND THAT COST AND THE 1954 REVENUE INTO SUBSEQUENT
YEARS THROUGH 1958 AND HOLD THAT THEY TOO ARE DEFICIT YEARS.  THIS IS,
ON ITS FACE, NOT IN KEEPING WITH RATE-MAKING PROCEDURES.  MOREOVER, THE
RECORD ITSELF SHOWS THE ERROR OF THE COMMISSION'S METHOD.  THE EXAMINER
FOUND THAT, ON PHILLIPS' OWN PRESENTATION OF ITS COSTS, THE OVER-ALL
DEFICIENCY FOR 1956 "WAS NOT SIGNIFICANTLY HIGHER THAN THAT DERIVED IN
PHILLIPS' 1954 TEST YEAR COST OF SERVICE."  24 F.P.C., AT 773. 
PHILLIPS' REVENUES, HOWEVER, INCREASED EACH YEAR SUBSEQUENT TO 1954. 
IN 1957 THEY WERE SOME $8,000,000 ABOVE 1954; THEY INCREASED SOME
$17,000,000 IN 1958 AND ABOUT $28,000,000 IN 1959.  IN 1960 REVENUE WAS
$90,856,248, WHICH WAS PRACTICALLY TWICE THAT OF 1954 ($45.6 MILLION). 
THESE FACTS, ALL KNOWN TO THE COMMISSION, REQUIRED A REAPPRAISAL OF THE
COST OF SERVICE FOR ALL YEARS SUBSEQUENT TO 1954, RATHER THAN THE
ARBITRARY USE OF THE 1954 FIGURES.  THE NECESSARY DATA COULD HAVE BEEN
QUICKLY OBTAINED FROM PHILLIPS WHICH, OF COURSE, HAD ITS TOTAL REVENUES
READILY AVAILABLE AND, I AM SURE, HAD ITS COST BASIS FOR EACH SEC. 4
INCREASE LIKEWISE CALCULATED.  (FN6)

                   II.  THE DISMISSALS AND THEIR CONSEQUENCES. 

THE REAL PROBLEM, HOWEVER, IS NOT SO MUCH IN PHILLIPS' 1954 LEVEL,
FOR THAT HAS LONG SINCE GONE BY THE BOARD AND THE CONSUMER MAY AS WELL
FORGET IT.  THE INCREASED LEVELS THAT BECAME EFFECTIVE BETWEEN 1954 AND
THE DATE OF THE DECISION IN APRIL 1959 ARE THE MAIN RUB.  THE EXAMINER
UNDERSTOOD THIS WHEN, IN HIS FINAL ORDER, HE DIRECTED PHILLIPS TO FILE
UNIFORM RATES WHICH WOULD, WHEN APPLIED TO SALES MADE IN 1954, BRING
PHILLIPS ITS 1954 COSTS AND ALLOWED RETURN.  HE FURTHER DIRECTED THAT
THE SAME SCHEDULE OF RATES BE APPLIED TO ALL SALES MADE SUBSEQUENT TO
1954 AND THROUGH THE DATE OF HIS DECISION AND TO ALL SALES THEREAFTER. 
UNDER THIS REQUIREMENT IF THE SUBSEQUENT COST OF SERVICE DID INCREASE
AND WAS NOT OFFSET BY INCREASED REVENUES THE COMPANY COULD RECOUP
ITSELF WITH SEC. 4 RATE INCREASES.  THIS THE COMMISSION REFUSED TO DO
AND THEREBY LEFT PHILLIPS FREE TO COLLECT RATES AS HIGH AS 23.5 CENTS
PER MCF.  AND SUBJECT TO NO REFUND.  THE COMMISSION EXCUSED ITSELF ON
THE GROUND THAT THERE WOULD BE NO REASON TO FIX PHILLIPS' RATES ON A
COST BASIS SINCE IT WAS GOING TO ADOPT THE AREA PLAN.  IT ALSO FOUND
THE STALENESS OF THE TEST YEAR PREVENTED ITS APPLICATION TO SUBSEQUENT
YEARS BUT OBVIOUSLY THIS WAS NOT THE REASON.  IN THE FIRST PLACE, IT
USED THE "STALE" TEST YEAR OF 1954 TO JUSTIFY ITS FINDING OF DEFICIT
THROUGH 1958.  IN ADDITION ALL PARTIES HAD AGREED UPON THAT YEAR. 
INVESTIGATION COVERED 1955 AND 1956.  HEARINGS BEGAN IN JUNE 1956 AND
RAN THROUGH 1957.  PHILLIPS ITSELF PRESENTED 1956 DATA, THE LATEST FULL
YEAR AT THE TIME OF THE CLOSING OF THE HEARINGS.  THEY WERE USED TO
SHOW THAT THE COST EXPERIENCE OF 1954 WAS IDENTICAL FOR ALL PRACTICAL
PURPOSES WITH 1956 AND THE EXAMINER SO FOUND.  IT REQUIRED 15 MONTHS
FOR THE EXAMINER TO DECIDE THE CASE AND PREPARE A MORE COMPREHENSIVE
AND DETAILED REPORT WHICH REFLECTED HIS CLEAR GRASP OF THE PROBLEMS. 
SEE 24 F.P.C. 590-818.  THUS, LIKE MANY MAJOR ADMINISTRATIVE
PROCEEDINGS, THIS ONE TOOK FIVE TO SIX YEARS TO COMPLETE.  BUT, I ASK,
IF THIS MAKES THE TEST YEAR STALE WHAT OF ALL THE OTHER MAJOR RATE
CASES?  THOSE THAT REACH US NOT INFREQUENTLY HAVE BEEN IN THE
COMMISSION FOR AN EQUAL OR LONGER PERIOD.  EVEN IF STALE, THE
COMMISSION SHOULD NOT HAVE DUMPED THE WHOLE INVESTIGATION, HEARING,
EXAMINER REPORT, AND STAFF WORK DOWN THE DRAIN.  BEFORE DOING SO, AND
IN THE SAME OPINION, IT HAD ALREADY LAID DOWN DETAILED STANDARDS IN THE
CASE FOR DETERMINING COST OF SERVICE.  INDEED IT HAD NOT ONLY
DETERMINED THE COST TO PHILLIPS BUT HAD FORMULATED THE STANDARDS
GOVERNING ITS RATE OF RETURN AND CALCULATED ITS ALLOWABLE RETURN
THEREUNDER.  ALL OF THIS IS THEN DISCARDED.  ADMITTING THAT ADDITIONAL
STATISTICS FOR SUBSEQUENT YEARS MIGHT HAVE BEEN NECESSARY, SUCH DATA
WOULD HAVE BEEN CONCERNED SOLELY WITH THE APPLICATION OF THESE ALREADY
DETERMINED STANDARDS TO THOSE YEARS. 

THE DISMISSAL OF THE SEC. 4(E) AND SEC. 5(A) CASES IS THE MORE
UNFORTUNATE AND INDICATES A DISTURBING DISREGARD OF THE CONSUMER
INTEREST.  ON THE SEC. 4(E) CASES THE COURT SAYS "MOST OF PHILLIPS'
INCREASED RATES NOW IN EFFECT ARE THE SUBJECT OF PENDING SEC. 4(E)
PROCEEDINGS  ...  ."  AT THIS VERY MOMENT PHILLIPS IS MAKING SALES AT
NONREFUNDABLE RATES AS HIGH AS 23.5 CENTS PER MCF.  WHICH PRODUCE
ANNUAL REVENUES MORE THAN $3,000,000 IN EXCESS OF THE COMMISSION'S SGP
61-1 PRICE LEVELS.  (FN7)  ON THIS SCORE IN 1956 THE COMMISSION
AUTHORIZED A LARGE NUMBER OF SEC. 7 HIGH PRICE SALES WITHOUT PROVIDING
FOR ANY CONDITIONS.  THIS ACTION WAS REVERSED IN ATLANTIC REFINING CO.
V. PUBLIC SERVICE COMM'N OF NEW YORK, 360 U.S. 378 (1959), AND LIKE
CASES.  ALTHOUGH SEC. 5 PROCEEDINGS HAVE BEEN FILED ON THESE CASES
THERE ARE SUBSTANTIAL NUMBERS OF OTHER SUCH SALES THAT HAVE NEVER BEEN
TESTED AND ARE NOT NOW CONTESTED.  SECTION 5 PROCEEDINGS OPERATE
PROSPECTIVELY AND SO, OF COURSE, ALL OF THE SALES ARE NONREFUNDABLE. 
THE STATISTICS INDICATE THAT OF THE 1960 REVENUE RECEIVED BY 13 MAJOR
PRODUCERS ABOUT $250,000,000 (ROUGHLY 83%) IS NOT SUBJECT TO REFUND. 
(FN8) FURTHERMORE, THE COURT SAYS THAT THE RATES COVERED BY THE SEC.
4(E) PROCEEDINGS DISMISSED HEREIN "WERE 'LOCKED IN,' THEIR VALIDITY FOR
THE FUTURE WAS NOT AT ISSUE; THE SOLE QUESTION WAS WHETHER ALL OR ANY
PART OF THE INCREASES HAD TO BE REFUNDED BY PHILLIPS."  THE FACT IS
THAT THE COMMISSION HAS USED THIS SAME "STALE" 1954 PRICE YEAR WHICH IS
DISCARDED, INCLUDING ITS INCOME LEVEL, IN DETERMINING THAT REFUNDS WERE
NOT DUE FOR THE SUBSEQUENT FOUR YEARS AND IN DISMISSING THOSE
PROCEEDINGS.  HENCE DISMISSAL FORECLOSES ANY RECOVERY OF EXCESS RATES
FOR THE PERIODS COVERING THOSE PROCEEDINGS, I.E., THE FOUR-YEAR PERIOD
1954-1958, WHICH THE COMMISSION HAS FOUND NONREFUNDABLE.  AS I HAVE
SHOWN, THE 1954 RATE AS DETERMINED BY THE COMMISSION HAS SERIOUS
QUESTIONS AS TO ITS LEGALITY.  CERTAINLY THE SUBSEQUENT YEARS - BASED
ENTIRELY ON IT - SHOULD NOT HAVE BEEN DISMISSED.  WHILE IT MAY BE TRUE,
AS THE COURT SAYS, THAT "REFUND OBLIGATIONS  ...  DO NOT PROVIDE AS
MUCH PROTECTION AS THE ELIMINATION OF UNREASONABLE RATES" IT MUST BE
REMEMBERED THAT HERE THE SEC. 5(A) CASE WAS ALSO DISMISSED.  WHY THIS
PRECIPITOUS ACTION?  THE PROCEEDING HAD BEEN ON THE BOOKS FOR SIX
YEARS]  WHY DID NOT THE COMMISSION LEAVE THEM PENDING UNTIL FINAL
DETERMINATION OF PHILLIPS' RESPONSIBILITY ON ALL OF ITS MORE THAN 95
FILINGS?  THE COMMISSION MAKES NO ANSWER.  THERE IS NONE. 

THE DISMISSAL OF THE SEC. 5(A) PROCEEDING WAS LIKEWISE UNJUSTIFIED. 
CONTINUATION OF THE PROCEEDING WOULD HAVE REQUIRED A REMAND BUT THE
CONCLUSION OF THE COURT THAT "SEVERAL YEARS MIGHT HAVE ELAPSED" BEFORE
A DETERMINATION OF THE ISSUE IS A BAD GUESS.  IT HAS BEEN TWO YEARS
SINCE THIS DISMISSAL AND THERE IS NOTHING IN SIGHT AS YET FOR A FINAL
DECISION ON THE PERMIAN BASIN AREA PROCEEDING.  THE COMMISSION HAS 22
MORE AREAS TO GO.  MEANWHILE ALL AREAS, INCLUDING PHILLIPS', HAVE
ESCAPED REGULATION FOR THE YEARS 1954-1963, A TOTAL OF NINE YEARS.  IF
IN 1960 THE COMMISSION HAD REMANDED THE SEC. 5(A) PROCEEDING IT COULD
LONG SINCE HAVE BEEN DECIDED, SINCE THE ENORMOUS INCREASE IN PHILLIPS'
REVENUE FOR 1960 ($45.6 MILLION IN 1954 TO $90.8 MILLION IN 1960) WOULD
HAVE DEFINITELY SHOWN AN EXCESSIVE RATE.  THE EXAMINER HAD FOUND,
CONTRARY TO THE CONCLUSION OF THE COURT, THAT THE 1956 COST OF SERVICE
WAS NOT "SIGNIFICANTLY HIGHER" THAN 1954.  ALL THAT WOULD HAVE BEEN
NECESSARY WAS TO PROJECT THIS TO THE THREE-YEAR PERIOD 1957-1959,
INCLUSIVE.  PHILLIPS, I WAGER, COULD HAVE DONE THIS ALMOST OVERNIGHT,
IF IT DID NOT ALREADY HAVE THE FIGURES AVAILABLE.  THE COMMISSION IN
DETERMINING THE STANDARDS TO BE USED HAD ALLOWED EVERY COST ITEM SAVE
THE ALLOCATION ON ASSOCIATED GAS WHICH COULD HAVE BEEN EASILY CORRECTED
ON THE PERCENTAGES INVOLVED.  THE REMAINDER OF PHILLIPS' SYSTEM OF
ACCOUNTING HAD RECEIVED THE APPROVAL OF THE COMMISSION AND WOULD HAVE
READILY REVEALED ITS COSTS. 

THE COURT SAYS THAT A NEW SEC. 5(A) PROCEEDING CAN BE FILED.  THIS IS
TRUE, BUT IF IT WERE FILED TOMORROW, MORE THAN NINE YEARS WILL ALREADY
HAVE BEEN LOST TO THE CONSUMER] 

THE COMMISSION, IN MY VIEW, HAD NO VALID EXCUSE FOR DISMISSING THE
SEC. 4(E) AND SEC.  5(A) PROCEEDINGS.  IT FOLLOWED EXACTLY THE OPPOSITE
COURSE IN HUNT OIL CO., 28 F.P.C.  623.  THE COURT DISMISSES THIS CASE
AS INAPPOSITE BUT ITS TECHNICAL DISTINCTION MERITS NO DISCUSSION.  AS I
SEE IT THE CONCLUSION IN HUNT NOT TO DISMISS THE PENDING PROCEEDINGS IS
IN DIRECT CONFLICT WITH THE ACTION TAKEN HERE. 

I HAVE CONSIDERED THIS RECORD PAGE BY PAGE - LINE BY LINE - AND HAVE
GIVEN THE COMMISSION'S ACTION MY MOST CAREFUL ATTENTION.  THERE IS BUT
ONE CONCLUSION - NAMELY, THAT THE COMMISSION ERRED IN ITS DETERMINATION
OF THE 1954 COST OF SERVICE AND RETURN; AND IN DISMISSING THE SEC. 4(E)
AND SEC. 5(A) PROCEEDINGS, RATHER THAN CONCLUDING THE CASE BY
DETERMINING A JUST AND REASONABLE RATE, IT ACTED IN AN ARBITRARY AND
UNREASONABLE MANNER ENTIRELY OUTSIDE OF THE TRADITIONAL CONCEPTS OF
ADMINISTRATIVE DUE PROCESS. 

           III.  THE FALLACY OF THE STATEMENT OF GENERAL POLICY. 

AS THE COURT SAYS, THE VALIDITY OF THE STATEMENT, SGP 61-1, AND THE
RATES ACCOMPANYING IT IS NOT BEFORE THE COURT.  BUT DESPITE THIS
DECLARATION I NOTICE THAT THE COURT PROCEEDS TO DISCUSS THE STATEMENT
AND STRONGLY IMPLIES A VIEW AS TO ITS VALIDITY.  I THINK IT BOTH
PREMATURE AND DANGEROUS TO PASS ANY JUDGMENT AT THIS STAGE OF THE
PROCEEDINGS.  THERE ARE SERIOUS LEGAL QUESTIONS LURKING IN THE
APPLICATION OF THE POLICY AND WE SHOULD NOT INTIMATE ITS APPROVAL UNTIL
A DEFINITIVE CASE IS PRESENTED UNDER IT.  I DEEM IT APPROPRIATE TO
RAISE THESE QUESTIONS HERE NOT TO JOIN ISSUE ON THE MERITS BUT ONLY TO
OUTLINE THE REASONS FOR MY RESERVATIONS ABOUT THE COURT'S CONSIDERATION
OF THIS ASPECT OF THE CASE.  WHILE I DO HAVE SERIOUS DOUBTS ABOUT BOTH
THE WISDOM AND THE LEGALITY OF THIS APPROACH TO PRICE DETERMINATION,
THIS IS CERTAINLY NOT THE CASE IN WHICH TO GIVE THEM FULL-DRESS
TREATMENT. 

IT IS OF COURSE TRUE THAT THE COST-OF-SERVICE METHOD IS NOT THE "SINE
QUA NON OF NATURAL GAS RATE REGULATION."  IT IS NOT SO MUCH THAT THE
COMMISSION MUST FOLLOW A SINGLE METHOD BUT RATHER THAT, IN ABANDONING A
HISTORIC, PRESENTLY USED AND UNDOUBTEDLY LEGAL ONE IN THE SUMMARY
MANNER DONE HERE, IT LEFT THE PRODUCTION OF GAS WITHOUT THE REQUIRED
REGULATION WHICH THE CONGRESS HAS DIRECTED.  IT CAN HARLDLY BE DENIED
THAT THE COMMISSION'S ACTION WILL LEAVE PRODUCERS FOR A NUMBER OF YEARS
- ESTIMATED BY THE COURT OF APPEALS AT UP TO 14 - WITHOUT EFFECTIVE
REGULATION AND WILL RESULT IN IRREPARABLE INJURY TO THE CONSUMER OF
GAS.  THE ONLY BRAKES ON SPIRALING PRODUCER PRICES ARE THE "GUIDE
PRICES" WHICH THE COMMISSION ATTACHED TO ITS SGP 61-1.  THESE, RATHER
THAN BEING LEGALLY ESTABLISHED RATES, ARE NONREVIEWABLE GUIDES
REFLECTING THE HIGHEST CERTIFICATED RATE OR WEIGHTED PRICE.  THEY HAVE
NO BINDING EFFECT.  INDEED, THEY MAY WELL ESTABLISH A FLOOR RATHER THAN
A CEILING. 

IN ADDITION, AREA PRICING MUST RUN THE HURDLE OF LEGAL ATTACK AND, TO
BE CONSTITUTIONALLY SOUND, MUST INCLUDE A SHOWING THAT THE INDIVIDUAL
PRODUCER AT THE AREA RATE FIXED WILL RECOVER HIS COSTS; OTHERWISE IT
WOULD BE CONFISCATORY AND ILLEGAL.  I CANNOT SHARE THE COURT'S
OPTIMISTIC VIEW THAT THE COMMISSION'S AREA RATE, TESTED BY "THE
'REASONABLE FINANCIAL REQUIREMENTS OF THE INDUSTRY' IN EACH PRODUCTION
AREA," IS LIKELY TO DO THIS.  THE FACTS OF GAS INDUSTRY LIFE MAKE IT
CRYSTAL CLEAR THAT ONE PRODUCER'S COSTS VARY IMMEASURABLY FROM
ANOTHER'S AND CANNOT BE LEVELED OFF - AT LEAST UNTIL DISCOVERED.  FOR
EXAMPLE, PHILLIPS' DRY HOLES COST ABOUT $11,000,000, ITS SURRENDERED
LEASES $9,000,000 AND ITS UNDEVELOPED OFFSHORE ONES $17,000,000.  ARE
THESE ITEMS TO BE INCLUDED IN THE "REASONABLE FINANCIAL REQUIREMENTS"
USED TO FIX THE RATE OF THE AREA?  IF THEY ARE IT WILL BE UNFAIR FOR
THE REASON THAT OTHER PRODUCERS IN THE AREA MAY OR MAY NOT HAVE HAD
SUCH COSTS.  INEVITABLY, THE AREA AVERAGE WILL BE LOWER THAN THE HIGH
COST PRODUCER.  HENCE THE "FINANCIAL REQUIREMENTS OF THE INDUSTRY" WILL
NOT SATISFY HIM.  IF THE RATE IS SET BY THE "FINANCIAL REQUIREMENTS" OF
THE HIGHER COST PRODUCER IT WILL BE HIGHER THAN THAT NECESSARY TO MAKE
IT JUST AND REASONABLE TO THE LOWER COST PRODUCER, THUS RESULTING IN A
WINDFALL TO THE LATTER.  IF THE "FINANCIAL REQUIREMENTS" OF THE LOWER
COST PRODUCER ARE USED IT WILL RESULT IN A RATE THAT WILL CONFISCATE
THE GAS OF THE HIGHER COST PRODUCER.  IF THE HIGHER AND LOWER COSTS ARE
AVERAGED, AS THE COMMISSION INDICATES IT INTENDS TO DO, THEN THE HIGHER
COST PRODUCER WILL STILL NOT RECOVER HIS COSTS AND THE RATE WILL BE
CONFISCATORY.  ON THE OTHER HAND THE LOWER COST PRODUCER WILL RECEIVE A
WINDFALL.  AND SO, AS I SEE IT, THE AREA PLAN IS IN A SQUEEZE - I.E.,
ANY CRITERIA THE COMMISSION USES WOULD NOT REFLECT INDIVIDUAL JUST AND
REASONABLE RATES.  MOREOVER, IT MUST BE REMEMBERED THAT THE BURDEN OF
PROVING JUST AND REASONABLE RATES IS ON THE PRODUCER AND HE CANNOT BE
PRECLUDED FROM OFFERING RELEVANT PROOF OF HIS COST.  THIS HE WILL
DEMAND IN THE EVENT HIS STATISTICS SHOW HIS COSTS ABOVE THOSE FIXED FOR
HIS AREA.  AND SO THE COLD TRUTH IS THAT, AFTER ALL OF ITS AREA PRICING
INVESTIGATION AND THE FIXING OF A RATE PURSUANT THERETO, THE PRODUCER
AGGRIEVED AT THAT RATE MAY DEMAND AND BE ENTITLED TO A FULL HEARING ON
HIS COST.  THE RESULT IS ADDITIONAL DELAY, DELAY AND DELAY UNTIL THE
INEVITABLE DAY WHEN THERE IS NO MORE GAS TO REGULATE. 

TYPICAL OF THIS SIMPLE FACT OF GAS INDUSTRY LIFE IS THE ANNOUNCEMENT
LAST NOVEMBER 15 THAT THE COMMISSION STAFF HAD RECOMMENDED TWO PRICES
FOR THE GAS OF THE PERMIAN BASIN (PHILLIPS) AREA.  IT WAS BELOW THE
"GUIDELINES" OF THE COMMISSION'S SGP 61-1 AND, FURTHER, SUGGESTED THAT
THESE PRICES BE CEILINGS BUT NOT FLOORS.  IMMEDIATELY THERE SPRANG UP
VIGOROUS PROTEST.  INDEPENDENT PRODUCERS THREATENED TO WITHDRAW THEIR
SUPPORT OF THE AREA PRICING PLAN.  A MEETING WAS HELD IN WASHINGTON
WITH THE COMMISSION WHERE IT WAS INSISTED THAT "REALISTIC AND UNIFORM
PRICES" BE FOLLOWED IN EACH AREA CONSISTENT WITH THE "IMPLIED PROMISE"
OF THE ORIGINAL SGP 61-1 IN THIS CASE.  THE PRODUCERS WERE ASSURED
THREE MONTHS LATER THAT THE "STAFF'S POSITION IS NOT NECESSARILY THAT
OF THE COMMISSION."  SEE TIPRO REPORTER, FEB.-MAR.  1963.  IT DOES NOT
REQUIRE A CRYSTAL BALL TO SEE WHAT WILL HAPPEN REGARDLESS OF THE
CONCLUSION OF THE COMMISSION.  IF IT DECIDES TO MAKE THE RATES
SUGGESTED A FLOOR, THE RESPECTIVE INDEPENDENT PRODUCERS WILL REQUIRE
INDIVIDUAL COST PROCEEDINGS; IF THE RATES ARE MADE BOTH A FLOOR AND A
CEILING, THOUSANDS OF OLD RATES WILL BE RAISED TO THE FLOOR AND THE
CONSUMER WILL PAY THE BILL. 

THAT THE COMMISSION'S PROBLEMS ARE DIFFICULT GOES WITHOUT SAYING. 
BUT AS COMPLICATED AS THEY APPEAR TO BE IT SEEMS ENTIRELY FEASIBLE FOR
IT TO SOLVE THEM.  OTHER AGENCIES HAVE BEEN FACED WITH LIKE CONGESTION
PROBLEMS.  INDEED BOTH THE NATIONAL LABOR RELATIONS BOARD AND THE WAGE
AND HOUR ADMINISTRATION FOUND THAT THEY COULD NOT PROCESS ALL
SITUATIONS CONFRONTING THEM.  THEY ADOPTED PROCEDURES THAT EXEMPTED THE
INCONSEQUENTIAL ONES.  SEE 23 N.L.R.B. ANN. REP. 7-8 (1958).  THE
SUGGESTION THAT THE COMMISSION DO LIKEWISE HAS MUCH MERIT.  IT APPEARS
THAT IN 1953, THE YEAR BEFORE PHILLIPS, OF ALL THE PRODUCERS THEN
SELLING IN INTERSTATE COMMERCE, EACH OF 4,191 PRODUCERS SOLD LESS THAN
2,000,000,000 CUBIC FEET OF GAS ANNUALLY, THE TOTAL OF THEIR SALES
BEING ONLY 9.26% OF THE GAS THEN SOLD IN INTERSTATE COMMERCE.  SEE
LANDIS, REPORT ON REGULATORY AGENCIES TO THE PRESIDENT-ELECT (1960),
55.  IN THE COMMISSION'S OPINION IN THIS CASE IT STATED THAT THERE WERE
3,372 PRODUCERS SELLING INTERSTATE IN 1960.  THE NUMBER HAS THEREFORE
DECREASED ALMOST A THOUSAND SINCE THE PHILLIPS DECISION IN 1954, WHICH
INDICATES THAT SOME OF THE SMALLER PRODUCERS HAVE ESCAPED FROM THEIR
INTERSTATE COMMITMENTS.  HOWEVER, IF ALL OF THOSE WHO ESCAPED WERE IN
THE LESS THAN 2,000,000,000 CUBIC FEET BRACKET THERE WOULD STILL REMAIN
SOME 3,000 PRODUCERS WHOSE SALES ARE MINISCULE.  IT THEREFORE APPEARS
TO ME THAT INCONSEQUENTIAL PRODUCERS BY THE HUNDREDS MIGHT WELL BE
TEMPORARILY EXEMPTED.  THE COMMISSION COULD THEN CONCENTRATE ON THE
LARGE PRODUCERS (20 OF THEM CONTROL OVER 50% OF THE INTERSTATE GAS)
WITHOUT THE PRESSURES INCIDENT TO THE SMALLER ONES.  THE INTEGRATED
PRODUCER OF LARGE VOLUME IS INEVITABLY GOING TO BE THE LOW COST
PRODUCER.  HENCE HIS RATE WILL BE AN EFFECTIVE FLOOR FROM WHICH THE
SMALL PRODUCER RATES MIGHT WELL BE ADJUSTED.  THIS WOULD GIVE THE
CONSUMER RATE PROTECTION OVER THE OVERWHELMING AMOUNT OF INTERSTATE GAS
MORE QUICKLY (FN9) AND WOULD GIVE ASSURANCES TO THE SMALL PRODUCER THAT
HE WOULD BE PROTECTED FROM CONFISCATION. 
IV.  INCONSEQUENTIAL MATTERS. 

THERE ARE TWO INCONSEQUENTIAL MATTERS THAT THE COURT DISCUSSES.  THE
FIRST IS THE ESCALATION CLAUSE IN SEVERAL OF PHILLIPS' CONTRACTS.  THE
COMMISSION HAS PROMULGATED A SERIES OF RULE-MAKING ORDERS CONDEMNING
SPIRAL ESCALATION CLAUSES AS BEING AGAINST THE PUBLIC INTEREST.  BY
ORDERS NOS. 232 AND 232A, 25 F.P.C. 379 AND 609, RESPECTIVELY, 26 FED.
REG.  1983 AND 2850, IT ANNOUNCED THAT THESE CLAUSES IN CONTRACTS
EXECUTED ON OR AFTER APRIL 3, 1961, WOULD BE WITHOUT EFFECT.  AND ORDER
NO. 242, 27 F.P.C. 339, 27 FED. REG. 1356, ANNOUNCED THAT CONTRACTS
CONTAINING SUCH CLAUSES WOULD BE UNACCEPTABLE FOR FILING AFTER APRIL 2,
1962.  THE COMMISSION ARGUES THAT THE CONTRACTS UNDER ATTACK HERE WERE
ALL DATED PRIOR TO 1954 AND HENCE ITS ORDER REFUSING TO FIND THEM VOID
SHOULD BE UPHELD.  THIS IS, OF COURSE, A NON SEQUITUR.  NOR IS IT
UNDERSTANDABLE HOW THE CLAUSES BECOME EFFECTIVE AGAINST THE PUBLIC
INTEREST AND UNACCEPTABLE IN 1961 BUT THE IDENTICAL PROVISIONS ARE
BLESSED WITH VALIDITY PRIOR TO THAT DATE.  I CANNOT SUBSCRIBE TO SUCH A
DOCTRINE.  HOWEVER, SINCE THE COURT REQUIRES THE PRODUCER TO "ESTABLISH
ITS LAWFULNESS WHOLLY APART FROM THE ESCALATION TERMS OF THE CONTRACT"
I CANNOT BECOME EXCITED OVER IT.  OBVIOUSLY THE CLAUSES HAVE NO EFFECT
WHATSOEVER IN DETERMINING THE REASONABLENESS OF A RATE FROM THE PUBLIC
STANDPOINT.  THEY DO HAVE THE EFFECT OF TRIGGERING THE FILING OF
INCREASED RATES.  THEY SHOULD BE COMPLETELY OUTLAWED BY THE COMMISSION
WHEN THE TWO SEC. 4(E) PROCEEDINGS LEFT PENDING ARE DECIDED. 

THE OTHER MINISCULE POINT WHEN COMPARED TO THE BASIC QUESTIONS IN THE
CASE IS WHETHER PHILLIPS' WIDELY VARYING RATES WERE "ON THEIR FACE
UNDULY DISCRIMINATORY AND PREFERENTIAL," AS CONTENDED BY PETITIONERS IN
NO. 72.  THE COURT REFRAINS FROM PASSING ON THIS ISSUE, REGARDING IT AS
NOT RAISED IN THE COURT BELOW OR ON REHEARING BEFORE THE COMMISSION. 
AN OBJECTION NOT RAISED IN THE PETITION FOR REHEARING BEFORE THE
COMMISSION, BUT IT APPEARS THAT PETITIONER WISCONSIN ADEQUATELY RAISED
THE ISSUE OF DISCRIMINATION IN ITS REHEARING PETITION, (FN10) AND THE
COMMISSION IN DENYING REHEARING STATED THAT PHILLIPS' RATES "NORMALLY
VARY GREATLY  ...  AND THERE IS NOTHING TO SHOW THAT THESE RATES ARE
DISCRIMINATORY OR PREFERENTIAL."  24 F.P.C., AT 1009.  I REGRET THAT
THE COURT HAS CHOSEN THIS OCCASION TO STAND ON TECHNICALITY, COMPARE
FEDERAL TRADE COMM'N V. BROCH & CO., 368 U.S. 360, 363 (1962), WHEN
PUBLIC INTEREST STANDS THE LOSS.  THE PATENTLY DISCRIMINATORY NATURE OF
THE RATE INCREASES, RESULTING IN RATES VARYING FROM 5.5 CENTS TO 17.5
CENTS PER MCF.  CANNOT SERIOUSLY BE QUESTIONED.  THE EXAMINER FOUND
THAT ON THE DATE OF THE PHILLIPS DECISION ITS PRICES RANGED FROM 1.2
CENTS TO A HIGH OF 15.7 CENTS PER MCF.  HE CONCLUDED THAT TO CONTINUE
SUCH A RATE STRUCTURE WOULD PRESERVE "FOR PHILLIPS AN UNDULY
DISCRIMINATORY GENERAL RATE STRUCTURE, WHICH WOULD BE CONTRARY TO THE
PUBLIC INTEREST  ... ."  24 F.P.C., AT 790.  THE COMMISSION STAFF ALSO
FOUND THAT "PHILLIPS CONTRACT RATES VARY SO WIDELY, EVEN AS BETWEEN
CONTRACTS FOR THE SAME SERVICE FROM THE SAME PRODUCING AREAS, AS TO
PATENTLY CONTRAVENE THE PUBLIC INTEREST, GENERATING AND PERPETUATING
UNDUE PREFERENCE AND UNDUE DISCRIMINATION."  ID., AT 790-79 1.  WHILE
THE ISSUE OF DISCRIMINATION WAS RAISED ONLY GENERALLY IN THE COURT OF
APPEALS, (FN11) IT WAS IMPLICIT IN THE BROAD QUESTIONS ON WHICH WE
GRANTED CERTIORARI.  WHILE THE ISSUE IS MINOR AS COMPARED TO THE
PRIMARY ISSUES HERE, IT CERTAINLY RESULTS IN A MISCARRIAGE OF JUSTICE
FOR THE COURT, ON SUCH A HIGHLY TECHNICAL GROUND, TO PERMIT THE
COMMISSION'S DISPOSITION TO STAND, TO THE IRREPARABLE INJURY OF THE
CONSUMERS OF GAS. 

         V. 

AS I REMINDED IN THE BEGINNING, THE CONGRESS DIRECTED THAT GAS MOVING
IN INTERSTATE COMMERCE BE SOLD AT JUST AND REASONABLE RATES.  THE BASIS
OF SUCH A DETERMINATION MUST HAVE SOME REFERENCE TO THE COSTS OF THE
SERVICE.  THE COMMISSION HAS, HOWEVER, FAILED TO REQUIRE THIS.  INSTEAD
IT HAS DECLARED THE 1954 TEST YEAR, WHICH IT THOROUGHLY INVESTIGATED,
TO BE "STALE" BUT NEVERTHELESS USED ITS FINDINGS FOR THAT YEAR TO
RELEASE PHILLIPS FROM REGULATION NOT ONLY FOR 1954 BUT ALSO FOR THE
FOUR SUCCEEDING YEARS.  PURSUANT THERETO IT DISMISSED THE SEC. 4(E)
PROCEEDINGS AND A SEC. 5(A) PROCEEDING COVERING THOSE PERIODS.  IN
ADDITION THE COMMISSION HAS ABANDONED ITS COST-OF-SERVICE PROGRAM OF
RATE FIXING AND HAS EMBARKED ON AN AREA BASIS REGULATION WHICH IS
HIGHLY QUESTIONABLE.  IT HAS ALSO PROMULGATED, WITHOUT ANY HEARING,
RATES AS GUIDELINES THAT HAVE NO SUPPORT IN EVIDENCE AS TO THEIR
JUSTNESS AND REASONABLENESS.  THROUGH THIS COURSE OF CONDUCT THE
COMMISSION'S PROGRAM OF PRODUCER REGULATION - OF WHICH PHILLIPS IS THE
KEYSTONE - HAS PERMITTED THE CONTINUED COLLECTION OF UNTESTED,
UNREASONABLE, UNJUST, DISCRIMINATORY AND PREFERENTIAL RATES.  THIS
SITUATION UNDER THE PRESENT TIMETABLE WILL CONTINUE FOR YEARS.  FOR
THESE REASONS I BELIEVE THAT THE PUBLIC INTEREST REQUIRES THAT THIS
CASE BE REVERSED AND REMANDED TO THE COMMISSION WITH DIRECTIONS TO FIX
THE JUST AND REASONABLE RATES OF PHILLIPS INVOLVED HEREIN.  I THEREFORE
DISSENT. 

FN1  FOR A DISCUSSION OF THE PROBLEMS LURKING UNDER THE DECISION SEE
THE SEPARATE DISSENTS OF MR. JUSTICE DOUGLAS AND OF THE WRITER, 347
U.S., AT 687 AND 690, RESPECTIVELY. 

FN2  THE 11.1009 CENTS FIGURE FOR UNIT COST OF SERVICE WAS ANNOUNCED
IN THE COMMISSION'S ORDER AMENDING ITS OPINION AND DENYING REHEARING. 
THE FIGURE WAS SUBJECT TO REDETERMINATION FOR PURCHASED GAS COSTS,
GATHERING TAXES AND ROYALTIES. 

FN3  THE PRESIDING EXAMINER FOUND "ANY FAILURE  ...  TO ALLOW  ...
RATES SUFFICIENT TO RECOUP ...  PROPER COST OF SERVICE AS HERE
DETERMINED, WOULD BE INHERENTLY UNFAIR AND CONTRARY TO THE PUBLIC
INTEREST.  IT MIGHT ALSO RAISE A SERIOUS QUESTION WITH RESPECT TO
POSSIBLE VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST
CONFISCATION."  24 F.P.C., AT 780. 

FN4  PHILLIPS SOLD 688,811,312 MCF.  OF NATURAL GAS IN 1954; IT
PURCHASED 407,984,210 MCF.  AND PRODUCED 375,690,912 MCF.  ITS
JURISDICTIONAL SALES RAN 71.9% OF THIS TOTAL.  (THE DIFFERENCE BETWEEN
THE TOTAL VOLUME SOLD AND THE SOMEWHAT HIGHER TOTAL VOLUME PRODUCED AND
PURCHASED RESULTS FROM COMPANY USES, LOSSES, RESIDUE RETURNED TO
LEASES, ETC.) 

FN5  THE PROPERTIES OF PHILLIPS KNOWN AS THE SAN JUAN TRANSFER WERE
MADE IN 1955 AND INVOLVED A TOTAL "KNOWN CHANGE" OF SOME $8,000,000
WHICH WAS NOT ALLOWED.  THE ASSIGNED REASON WAS THAT OTHER PROPERTIES
WERE ADDED BUT I FIND NO SUPPORT IN THE RECORD FOR THIS CONCLUSION. 

FN6  IN THIS CONNECTION, IT APPEARS STRANGE THAT THE COMMISSION HAS
EXEMPTED PRODUCERS FROM THE UNIFORM SYSTEM OF ACCOUNTS REQUIRED OF
NATURAL GAS COMPANIES, 18 CFR, C. 1, PART 201.  NO SYSTEM HAS AS YET
BEEN PRESCRIBED FOR PRODUCERS.  MOREOVER, THE ANNUAL REPORTS REQUIRED
FROM PIPELINES ENABLE THE COMMISSION TO PROMPTLY DETERMINE PIPELINE
EXPENSE, RETURNS, EARNINGS, ETC.  THIS REPORT FOR PRODUCERS MERELY
SHOWS SALES UNDER EACH RATE SCHEDULE.  FINALLY, PIPELINES, WHEN FILING
SEC. 4 RATE INCREASES, MUST ATTACH DETAILED COST JUSTIFICATION.  NO
SUCH REQUIREMENT IS MADE OF PRODUCERS. 

FN7  THE SITUATION IS EVEN MORE EXTREME IN SOUTH LOUISIANA WHERE 55%
OF THE GAS IS NOW FLOWING AT PRICES WHICH EXCEED THE COMMISSIONER'S
"INITIAL PRICE" CEILING; OVER 94% IS FLOWING AT PRICES EXCEEDING THE
COMMISSION'S "INCREASED PRICE"; AND OVER 70% IS FLOWING AT PRICES WHICH
EXCEED THE LEVEL THE COMMISSION FOUND "IN LINE" FOR CATCO GAS AFTER OUR
REMAND IN ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N OF NEW YORK,
360 U.S. 378 (1959). 

FN8  THE COURT SEEMS TO ADMIT THAT THE PROTECTION THE CONGRESS
ENVISAGED IN SEC. 4(E) IS IN PRACTICE ILLUSORY.  FIRST IT COMES TOO
LATE; NEXT, MANY OF THE CONSUMERS ENTITLED TO REFUNDS CANNOT BE FOUND,
ETC.  SEE FEDERAL POWER COMM'N V. TENNESSEE GAS TRANSMISSION CO., 371
U.S. 145, 154-155, (1962).  AN EVEN MORE REALISTIC CONSIDERATION IS
THAT THESE REFUNDS HAVE BEEN PERMITTED TO REACH THE ASTRONOMICAL FIGURE
OF $158,000,000 A YEAR, OF WHICH AMOUNT PHILLIPS HAS BEEN RECEIVING
SOME $74,000,000.  IF THE "EVIL DAY" FOR THE PRODUCER EVER ARRIVES
WHERE HE MUST PAY UP, FROM WHERE WILL THE MONEY COME?  IT WOULD
BANKRUPT THE AVERAGE PRODUCER.  THE COMMISSION WOULD NECESSARILY, IN
ORDER TO PROTECT THE SERVICE OF INTERSTATE CUSTOMERS, BE OBLIGED TO
COMPROMISE OR FORGIVE THEM. 

FN9  FOUR CASES INVOLVING MAJOR PRODUCERS HAVE BEEN DECIDED BY THE
EXAMINERS AND FIVE INVESTIGATIONS OF OTHER MAJOR PRODUCERS HAVE NOW
BEEN COMPLETED.  THESE NINE PRODUCERS, WITH PHILLIPS, HANDLE 30% OF ALL
INTERSTATE GAS.  STILL NO MAJOR RATE CASE HAS BEEN DECIDED SINCE
PHILLIPS.  ONLY TWO AREA CASES ARE UNDER INVESTIGATION.  THESE TWO
AREAS - PERMIAN AND SOUTH LOUISIANA - FURNISH ONLY 32% OF ALL
INTERSTATE GAS.  THE SOUTH LOUISIANA CASE WILL TAKE SEVERAL YEARS TO
COMPLETE. 

FN10  WISCONSIN'S PETITION FOR REHEARING, IN POINT (1), CHALLENGED
THE COMMISSION'S POLICY STATEMENTS REGARDING RATE REGULATION, ON THE
GROUND THAT "THE ISSUE IN THIS CASE IS TO DETERMINE WHETHER THE
JURISDICTIONAL RATES AND CHARGES OR CLASSIFICATION DEMANDED, OBSERVED,
CHARGED OR COLLECTED BY PHILLIPS, OR ANY RULES, REGULATIONS, PRACTICES
OR CONTRACTS AFFECTING THEM, ARE UNJUST, UNREASONABLE, UNDULY
DISCRIMINATORY OR PREFERENTIAL.  NATURAL GAS ACT SECS. 4, 5." 

FN11  SEE POINTS 1 AND 2, BRIEF OF LONG ISLAND LIGHTING CO.,
PETITIONER IN NO. 374, ON PETITION FOR REVIEW OF THE COMMISSION'S ORDER
IN THE COURT OF APPEALS. 
..END :








ANDREWS V. UNITED STATES 373 U.S. 334 


NO. 491.  ARGUED MARCH 25-26, 1963.  - DECIDED MAY 20, 1963.* - 301 F.2D
376, JUDGMENT SET ASIDE AND CASES REMANDED. 

*TOGETHER WITH NO. 494, DONOVAN V. UNITED STATES, ALSO ON CERTIORARI
TO THE SAME COURT. 


IN A FEDERAL DISTRICT COURT, PETITIONERS WERE CONVICTED OF VIOLATING
CERTAIN FEDERAL CRIMINAL STATUTES AND WERE SENTENCED TO IMPRISONMENT. 
THEIR CONVICTIONS WERE AFFIRMED BY THE COURT OF APPEALS; BUT THEIR
CASES WERE REMANDED FOR RESENTENCING.  THEY WERE RESENTENCED, AND THE
JUDGMENTS WERE AFFIRMED BY THE COURT OF APPEALS.  SEVERAL YEARS LATER,
PETITIONERS MOVED IN THE DISTRICT COURT THAT THEIR SENTENCES BE VACATED
AND THAT THEY BE RESENTENCED, ON THE GROUND THAT THEY HAD NOT BEEN
GIVEN AN OPPORTUNITY TO MAKE STATEMENTS IN THEIR OWN BEHALVES, AS
REQUIRED BY FEDERAL RULE OF CRIMINAL PROCEDURE 32(A), EITHER WHEN THEY
WERE ORIGINALLY SENTENCED OR WHEN THEY WERE RESENTENCED.  FINDING THIS
TO BE TRUE, THE DISTRICT COURT GRANTED THEIR MOTIONS AND ORDERED THAT
PETITIONERS BE RETURNED TO IT FOR RESENTENCING.  WITHOUT WAITING FOR
THEM TO BE RESENTENCED, THE GOVERNMENT APPEALED TO THE COURT OF
APPEALS.  HELD:  PETITIONERS' MOTIONS SHOULD BE CONSIDERED AS HAVING
BEEN MADE IN COLLATERAL PROCEEDINGS UNDER 28 U.S.C. SEC. 2255; THE
DISTRICT COURT'S ORDERS WERE INTERLOCUTORY, NOT FINAL; AND THE COURT OF
APPEALS DID NOT HAVE JURISDICTION OF THE GOVERNMENT'S APPEAL.  PP. 335
340. 

ANDREWS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE TWO PETITIONERS AND A CO-DEFENDANT WERE CONVICTED IN A FEDERAL
DISTRICT COURT UPON A THREE-COUNT INDICTMENT CHARGING THAT THEY HAD (1)
ASSAULTED A POST OFFICE EMPLOYEE WITH INTENT TO ROB IN VIOLATION OF 18
U.S.C. SEC. 2114, (2) PUT THE LIFE OF THE POST OFFICE EMPLOYEE IN
JEOPARDY BY THE USE OF A DANGEROUS WEAPON IN VIOLATION OF 18 U.S.C.
SEC. 2114, AND (3) CONSPIRED TOGETHER TO VIOLATE THE AFORESAID STATUTE
IN VIOLATION OF 18 U.S.C. SEC. 371.  THE DISTRICT JUDGE SENTENCED EACH
DEFENDANT TO CONCURRENT PRISON TERMS OF 25 YEARS ON COUNT 2 AND FIVE
YEARS ON COUNT 3.  (FN1)  NONE OF THE DEFENDANTS WAS ASKED BEFORE THE
SENTENCES WERE IMPOSED WHETHER HE HAD ANYTHING TO SAY IN HIS OWN
BEHALF.  ON APPEAL, THE CONVICTIONS WERE AFFIRMED, BUT THE CASES WERE
REMANDED TO THE DISTRICT COURT FOR RESENTENCING ON COUNT 2, ON THE
GROUND THAT THE TRIAL JUDGE HAD BEEN IN ERROR IN THINKING THAT UNDER
THE STATUTE (FN2) HE WAS WITHOUT POWER TO SUSPEND SENTENCE AND GRANT
PROBATION ON THAT COUNT.  UNITED STATES V. DONOVAN, 242 F.2D 61.  UPON
REMAND, THE DISTRICT COURT SUSPENDED THE 25-YEAR SENTENCE WHICH HAD
BEEN IMPOSED ON THE PETITIONERS' CO-DEFENDANT, BUT RESENTENCED THE TWO
PETITIONERS TO 25-YEAR PRISON TERMS.  AGAIN, NEITHER PETITIONER WAS
AFFORDED AN OPPORTUNITY TO SPEAK IN HIS OWN BEHALF BEFORE THE SENTENCES
WERE IMPOSED.  THE COURT OF APPEALS REAFFIRMED THE CONVICTIONS.  UNITED
STATES V. DONOVAN, 252 F.2D 788. 

THE PROCEEDINGS NOW BEFORE US BEGAN WHEN THE PETITIONER DONOVAN FILED
A MOTION IN THE DISTRICT COURT REQUESTING THAT HIS SENTENCE "BE VACATED
AND HE BE RESENTENCED" ON THE GROUND THAT, CONTRARY TO RULE 32(A) OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE, HE HAD BEEN AFFORDED NO
OPPORTUNITY TO MAKE A STATEMENT IN HIS OWN BEHALF EITHER AT THE TIME OF
THE ORIGINAL SENTENCE OR WHEN THE SENTENCE WAS REIMPOSED.  (FN3)  THE
DISTRICT COURT GRANTED THE MOTION AND ORDERED THAT DONOVAN "BE RETURNED
TO THIS DISTRICT FOR RESENTENCING."  THE PETITIONER ANDREWS THEN WROTE
TO JUDGE MURPHY, THE DISTRICT JUDGE WHO HAD ACTED ON DONOVAN'S MOTION,
POINTING OUT THAT "THE IDENTICAL CIRCUMSTANCES EXIST WITH ME" AND
ASKING FOR SIMILAR RELIEF.  JUDGE MURPHY ORDERED THAT ANDREWS TOO BE
RETURNED TO THE DISTRICT COURT FOR RESENTENCING.  THE GOVERNMENT FILED
A NOTICE OF APPEAL FROM BOTH ORDERS, AND THE RESENTENCING OF THE
PETITIONERS WAS STAYED UPON THE GOVERNMENT'S MOTION.  THE COURT OF
APPEALS RULED THAT ITS APPELLATE JURISDICTION HAD BEEN PROPERLY
INVOKED, AND ON THE MERITS REVERSED THE ORDERS OF THE DISTRICT COURT,
HOLDING THAT UNDER THIS COURT'S DECISIONS IN HILL V. UNITED STATES, 368
U.S. 424, AND MACHIBRODA V. UNITED STATES, 368 U.S. 487, THE SENTENCING
COURT'S FAILURE TO COMPLY WITH RULE 32(A) DID NOT CONSTITUTE A GROUND
FOR COLLATERAL RELIEF.  301 F.2D 376.  WE GRANTED CERTIORARI, 371 U.S.
812. 

AS TO THE MERITS OF THE ISSUE DECIDED BY THE COURT OF APPEALS, THE
PETITIONERS CONTEND THAT THERE WAS HERE NOT A MERE FAILURE TO COMPLY
WITH THE FORMAL REQUIREMENTS OF RULE 32(A) AS IN HILL AND MACHIBRODA,
BUT THAT A NUMBER OF AGGRAVATING CIRCUMSTANCES ACCOMPANIED THE
SENTENCING COURT'S DENIAL OF THE PETITIONERS' RIGHT OF ALLOCUTION.  AND
THE COURT'S OPINIONS IN HILL AND MACHIBRODA, SAY THE PETITIONERS,
CLEARLY IMPLIED THAT COLLATERAL RELIEF WOULD BE AVAILABLE IN A CASE
WHERE SUCH CIRCUMSTANCES WERE SHOWN TO EXIST.  CF.  UNITED STATES V.
TAYLOR, 303 F.2D 165, 167-168.  BUT THE PETITIONERS ARGUE PRELIMINARILY
THAT THE GOVERNMENT HAD NO RIGHT OF APPEAL IN THESE CASES.  WE AGREE
WITH THE PETITIONERS THAT THE COURT OF APPEALS DID NOT HAVE APPELLATE
JURISDICTION, AND ACCORDINGLY, WITHOUT REACHING THE MERITS, WE SET
ASIDE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASES TO THE
DISTRICT COURT SO THAT THE PETITIONERS MAY BE RESENTENCED IN ACCORDANCE
WITH THE DISTRICT COURT'S ORDERS. 

THE MOTION WHICH DONOVAN FILED IN THE SENTENCING COURT WAS
DENOMINATED BY HIM AS ONE MADE UNDER RULE 35 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE.  (FN4)  ANDERSON'S LETTER DID NOT MENTION RULE 35,
BUT IN AN AFFIDAVIT OPPOSING ANDERSON'S REQUEST, AN ASSISTANT UNITED
STATES ATTORNEY CONCEDED THAT THE "FACTUAL AND LEGAL POSTURE OF THIS
APPLICATION THEREFORE IS IDENTICAL TO THE SIMILAR MOTION OF ROBERT L.
DONOVAN."  BOTH APPLICATIONS WERE FILED IN THE DISTRICT COURT UNDER THE
DOCKET NUMBER OF THE ORIGINAL CRIMINAL CASE. 

IN VIEW OF THIS TREATMENT OF THE MOTIONS BY THE PARTIES AND THE TRIAL
COURT, THE COURT OF APPEALS WAS ASKED TO CONSIDER THE MOTIONS ALSO AS
FILED IN THE ORIGINAL CRIMINAL CASES UNDER RULE 35, AND TO HOLD THAT
THE TRIAL COURT'S RULINGS COULD NOT BE APPEALED BY THE GOVERNMENT
BECAUSE THEY DID NOT COME WITHIN THE LIMITED PURVIEW OF THE CRIMINAL
APPEALS ACT.  (FN5)  THIS REASONING THE COURT OF APPEALS DECLINED TO
ADOPT, TREATING THE MOTIONS INSTEAD AS HAVING BEEN BROUGHT UNDER THE
PROVISIONS OF 28 U.S.C. SEC. 2255. 

THE COURT WAS CORRECT IN REGARDING HILL V. UNITED STATES, SUPRA, AS
REQUIRING THIS VIEW, IN THE CASE OF A PRISONER IN CUSTODY UNDER THE
SENTENCE HE IS ATTACKING.  CF. UNITED STATES V. MORGAN, 346 U.S. 502. 
AND IN THIS AREA OF THE LAW, AS THE COURT OF APPEALS POINTED OUT,
"ADJUDICATION UPON THE UNDERLYING MERITS OF CLAIMS IS NOT HAMPERED BY
RELIANCE UPON THE TITLES PETITIONERS PUT UPON THEIR DOCUMENTS."  301
F.2D, AT 378.  SEE HEFLIN V. UNITED STATES, 358 U.S. 415.  SECTION 2255
EXPLICITLY AUTHORIZES A PRISONER IN CUSTODY UNDER A SENTENCE IMPOSED BY
A FEDERAL COURT TO ATTACK SUCH A SENTENCE COLLATERALLY UPON THE GROUND
THAT THE SENTENCE "WAS IMPOSED IN VIOLATION OF THE  ...  LAWS OF THE
UNITED STATES," BY MOVING THE TRIAL COURT "TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE."  (FN6) 

AN ACTION UNDER 28 U.S.C. SEC. 2255 IS A SEPARATE PROCEEDING,
INDEPENDENT OF THE ORIGINAL CRIMINAL CASE.  UNITED STATES V. HAYMAN,
342 U.S. 205.  THE CRIMINAL APPEALS ACT HAS NO APPLICABILITY TO SUCH A
PROCEEDING.  INSTEAD, SEC. 2255 ITSELF PROVIDES THAT "AN APPEAL MAY BE
TAKEN TO THE COURT OF APPEALS FROM THE ORDER ENTERED ON THE MOTION AS
FROM FINAL JUDGMENT ON APPLICATION FOR A WRIT OF HABEAS CORPUS." 

WE CANNOT AGREE WITH THE COURT OF APPEALS, HOWEVER, THAT UNDER THIS
PROVISION THE GOVERNMENT HAD A RIGHT TO TAKE APPEALS AT THE TIME IT
SOUGHT TO DO SO IN THESE CASES, BECAUSE WE THINK IT CLEAR THAT THE
ORDERS WERE INTERLOCUTORY, NOT FINAL.  FOR A FEDERAL PRISONER SEC. 2255
CAN PERFORM THE FULL SERVICE OF HABEAS CORPUS, BY EFFECTING THE
IMMEDIATE AND UNCONSTITUTIONAL DISCHARGE OF THE PRISONER.   SANDERS V.
UNITED STATES, ANTE, P. 1.  BUT THE PROVISIONS OF THE STATUTE MAKE
CLEAR THAT IN APPROPRIATE CASES A SEC.  2255 PROCEEDING CAN ALSO BE
UTILIZED TO PROVIDE A MORE FLEXIBLE REMEDY.  IN THE PRESENT CASES
NEITHER OF THE PETITIONERS EVER ASKED FOR HIS UNCONDITIONAL RELEASE. 
WHAT THEY ASKED, AND WERE GRANTED, WAS THE VACATION OF THE SENTENCES
THEY WERE SERVING SO THAT THEY MIGHT BE RETURNED TO THE TRIAL COURT TO
BE RESENTENCED IN PROCEEDINGS IN WHICH THEIR RIGHT TO ALLOCUTION WOULD
BE ACCORDED THEM.  SUCH A REMEDY IS PRECISELY AUTHORIZED BY THE
STATUTE.  UNDER SEC. 2255 A PETITIONER MAY "MOVE THE COURT WHICH
IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR CORRECT THE SENTENCE." 
(FN7)  AND IN RESPONSE TO SUCH A MOTION A DISTRICT COURT IS EXPRESSLY
AUTHORIZED TO "DISCHARGE THE PRISONER OR RESENTENCE HIM OR GRANT A NEW
TRIAL OR CORRECT THE SENTENCE AS MAY APPEAR APPROPRIATE."  (FN8)
WHERE, AS HERE, WHAT WAS APPROPRIATELY ASKED AND APPROPRIATELY GRANTED
WAS THE RESENTENCING OF THE PETITIONERS, IT IS OBVIOUS THAT THERE COULD
BE NO FINAL DISPOSITION OF THE SEC. 2255 PROCEEDINGS UNTIL THE
PETITIONERS WERE RESENTENCED.  CF. PARR V. UNITED STATES, 351 U.S. 513,
518. 

THE LONG-ESTABLISHED RULE AGAINST PIECEMEAL APPEALS IN FEDERAL CASES
AND THE OVERRIDING POLICY CONSIDERATIONS UPON WHICH THAT RULE IS
FOUNDED HAVE BEEN REPEATEDLY EMPHASIZED BY THIS COURT.  SEE, E.G.,
DIBELLA V. UNITED STATES, 369 U.S. 121; CARROLL V. UNITED STATES, 354
U.S. 394; COBBLEDICK V. UNITED STATES, 309 U.S. 323.  THE STANDARDS OF
FINALITY TO WHICH THE COURT HAS ADHERED IN HABEAS CORPUS PROCEEDINGS
HAVE BEEN NO LESS EXACTING.  SEE, E.G., COLLINS V. MILLER, 252 U.S.
364.  THERE THE COURT SAID THAT THE RULE AS TO FINALITY "REQUIRES THAT
THE JUDGMENT TO BE APPEALABLE SHOULD BE FINAL NOT ONLY AS TO ALL THE
PARTIES, BUT AS TO THE WHOLE SUBJECT-MATTER AND AS TO ALL THE CAUSES OF
ACTION INVOLVED."  252 U.S., AT 370. 

THE BASIC REASON FOR THE RULE AGAINST PIECEMEAL INTERLOCUTORY APPEALS
IN THE FEDERAL SYSTEM IS PARTICULARLY APPARENT IN THE CASES BEFORE US.
UNTIL THE PETITIONERS ARE RESENTENCED, IT IS IMPOSSIBLE TO KNOW WHETHER
THE GOVERNMENT WILL BE ABLE TO SHOW ANY COLORABLE CLAIM OF PREJUDICIAL
ERROR.  THE DISTRICT COURT MAY, AS BEFORE, SENTENCE THE PETITIONERS TO
THE SAME 25 YEARS' IMPRISONMENT; IT MAY PLACE ONE OR BOTH OF THEM ON
PROBATION; IT MAY MAKE SOME OTHER DISPOSITION WITH RESPECT TO THEIR
SENTENCES.  BUT UNTIL THE COURT ACTS, NONE OF THE PARTIES TO THIS
CONTROVERSY WILL HAVE HAD A FINAL ADJUDICATION OF HIS CLAIMS BY THE
TRIAL COURT IN THESE SEC. 2255 PROCEEDINGS. 

THE JUDGMENT OF THE COURT OF APPEALS IS SET ASIDE, AND THE CASES ARE
REMANDED TO THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  NO SENTENCE WAS IMPOSED ON COUNT 1, BECAUSE THE COURT CONCLUDED
THAT THE CONVICTION UNDER THIS COUNT HAD MERGED WITH THE CONVICTION
UNDER COUNT 2. 

FN2  "WHOEVER ASSAULTS ANY PERSON HAVING LAWFUL CHARGE, CONTROL, OR
CUSTODY OF ANY MAIL MATTER OR OF ANY MONEY OR OTHER PROPERTY OF THE
UNITED STATES, WITH INTENT TO ROB, STEAL, OR PURLOIN SUCH MAIL MATTER,
MONEY, OR OTHER PROPERTY OF THE UNITED STATES, OR ROBS ANY SUCH PERSON
OF MAIL MATTER, OR OF ANY MONEY, OR OTHER PROPERTY OF THE UNITED
STATES, SHALL, FOR THE FIRST OFFENSE, BE IMPRISONED NOT MORE THAN TEN
YEARS; AND IF IN EFFECTING OR ATTEMPTING TO EFFECT SUCH ROBBERY HE
WOUNDS THE PERSON HAVING CUSTODY OF SUCH MAIL, MONEY, OR OTHER PROPERTY
OF THE UNITED STATES, OR PUTS HIS LIFE IN JEOPARDY BY THE USE OF A
DANGEROUS WEAPON, OR FOR A SUBSEQUENT OFFENSE, SHALL BE IMPRISONED
TWENTY-FIVE YEARS."  18 U.S.C. SEC. 2114. 

FN3  RULE 32(A), FEDERAL RULES OF CRIMINAL PROCEDURE, PROVIDES IN
PERTINENT PART AS FOLLOWS: "BEFORE IMPOSING SENTENCE THE COURT SHALL
AFFORD THE DEFENDANT AN OPPORTUNITY TO MAKE A STATEMENT IN HIS OWN
BEHALF AND TO PRESENT ANY INFORMATION IN MITIGATION OF PUNISHMENT." 

FN4  RULE 35 PROVIDES IN PERTINENT PART AS FOLLOWS:  "THE COURT MAY
CORRECT AN ILLEGAL SENTENCE AT ANY TIME." 

FN5  18 U.S.C. SEC. 3731.  THE GOVERNMENT MAKES NO CLAIM OF A RIGHT
TO APPEAL UNDER THE CRIMINAL APPEALS ACT.  NO QUESTION AS TO THE
AVAILABILITY OF A WRIT OF MANDAMUS IS PRESENTED BY THIS CASE.  SEE
UNITED STATES V. SMITH, 331 U.S. 469.  CF. UNITED STATES V. MAYER, 235
U.S. 55. 

FN6  THE FIRST PARAGRAPH OF 28 U.S.C. SEC. 2255 PROVIDES: 

"A PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED BY ACT
OF CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND THAT THE
SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE
UNITED STATES, OR THAT THE COURT WAS WITHOUT JURISDICTION TO IMPOSE
SUCH SENTENCE, OR THAT THE SENTENCE WAS IN EXCESS OF THE MAXIMUM
AUTHORIZED BY LAW, OR IS OTHERWISE SUBJECT TO COLLATERAL ATTACK, MAY
MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE." 

FN7  SEE NOTE 6, SUPRA. 

FN8  THE THIRD PARAGRAPH OF SEC. 2255 PROVIDES:  "UNLESS THE MOTION
AND THE FILES AND RECORDS OF THE CASE CONCLUSIVELY SHOW THAT THE
PRISONER IS ENTITLED TO NO RELIEF, THE COURT SHALL CAUSE NOTICE THEREOF
TO BE SERVED UPON THE UNITED STATES ATTORNEY, GRANT A PROMPT HEARING
THEREON, DETERMINE THE ISSUES AND MAKE FINDINGS OF FACT AND CONCLUSIONS
OF LAW WITH RESPECT THERETO.  IF THE COURT FINDS THAT THE JUDGMENT WAS
RENDERED WITHOUT JURISDICTION, OR THAT THE SENTENCE IMPOSED WAS NOT
AUTHORIZED BY LAW OR OTHERWISE OPEN TO COLLATERAL ATTACK, OR THAT THERE
HAS BEEN SUCH A DENIAL OR INFRINGEMENT OF THE CONSTITUTIONAL RIGHTS OF
THE PRISONER AS TO RENDER THE JUDGMENT VULNERABLE TO COLLATERAL ATTACK,
THE COURT SHALL VACATE AND SET THE JUDGMENT ASIDE AND SHALL DISCHARGE
THE PRISONER OR RESENTENCE HIM OR GRANT A NEW TRIAL OR CORRECT THE
SENTENCE AS MAY APPEAR APPROPRIATE." 
..END :








SILVER, DBA MUNICIPAL SECURITIES CO. V. NEW YORK STOCK EXCHANGE 373 U.S.
341 


NO. 150.  ARGUED FEBRUARY 25-26, 1963.  - DECIDED MAY 20, 1963.  - 302
F.2D 714, REVERSED. 


PETITIONERS, TWO TEXAS OVER-THE-COUNTER BROKER-DEALERS IN SECURITIES,
WHO WERE NOT MEMBERS OF THE NEW YORK STOCK EXCHANGE, ARRANGED WITH
MEMBERS OF THE EXCHANGE IN NEW YORK CITY FOR DIRECT-WIRE TELEPHONE
CONNECTIONS WHICH WERE ESSENTIAL TO THE CONDUCT OF THEIR BUSINESSES. 
THE MEMBERS APPLIED TO THE EXCHANGE, AS REQUIRED BY ITS RULES
PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, FOR APPROVAL OF
THE CONNECTIONS.  TEMPORARY APPROVAL WAS GRANTED AND THE CONNECTIONS
WERE ESTABLISHED; BUT, WITHOUT PRIOR NOTICE TO PETITIONERS, THE
APPLICATIONS WERE DENIED LATER, AND THE CONNECTIONS WERE DISCONTINUED,
AS REQUIRED BY RULES OF THE EXCHANGE.  ALLEGEDLY AS A RESULT, ONE OF
THE PETITIONERS WAS FORCED OUT OF BUSINESS AND THE OTHER'S BUSINESS WAS
GREATLY DIMINISHED.  NOTWITHSTANDING REPEATED REQUESTS, OFFICIALS OF
THE EXCHANGE REFUSED TO GRANT PEITTIONERS A HEARING OR EVEN TO INFORM
THEM OF THE REASONS FOR DENIAL OF THE APPLICATIONS.  PETITIONERS SUED
THE EXCHANGE AND ITS MEMBERS IN A FEDERAL DISTRICT COURT FOR TREBLE
DAMAGES AND INJUNCTIVE RELIEF, CLAIMING THAT THEIR COLLECTIVE REFUSAL
TO CONTINUE THE DIRECT-WIRE CONNECTIONS VIOLATED THE SHERMAN ACT. 
HELD: THE DUTY OF SELF-REGULATION IMPOSED UPON THE EXCHANGE BY THE
SECURITIES EXCHANGE ACT OF 1934 DID NOT EXEMPT IT FROM THE ANTITRUST
LAWS NOR JUSTIFY IT IN DENYING PETITIONERS THE DIRECT-WIRE CONNECTIONS
WITHOUT THE NOTICE AND HEARING WHICH THEY REQUESTED.  THEREFORE, THE
EXCHANGE'S ACTION IN THIS CASE VIOLATED SEC. 1 OF THE SHERMAN ACT, AND
THE EXCHANGE IS LIABLE TO PETITIONERS UNDER SECS. 4 AND 16 OF THE
CLAYTON ACT.  PP. 342-367. 

(A)  ABSENT ANY JUSTIFICATION DERIVED FROM THE SECURITIES EXCHANGE
ACT OF 1934 OR OTHERWISE, REMOVAL OF THE DIRECT-WIRE CONNECTIONS BY
COLLECTIVE ACTION OF THE EXCHANGE AND ITS MEMBERS CONSTITUTED A PER SE
VIOLATION OF SEC. 1 OF THE SHERMAN ACT, SINCE IT WAS A GROUP BOYCOTT
DEPRIVING PETITIONERS OF A VALUABLE BUSINESS SERVICE WHICH THEY NEEDED
IN ORDER TO COMPETE EFFECTIVELY AS BROKER-DEALERS IN THE OVER-THE
COUNTER SECURITIES MARKET.  PP. 347-349. 

(B)  IN THE LIGHT OF THE DESIGN OF THE SECURITIES EXCHANGE ACT OF
1934 TO GIVE THE EXCHANGES A MAJOR PART IN CURBING ABUSES BY SELF
REGULATION, THE RULES APPLIED IN THE PRESENT CASE WERE GERMANE TO THE
PERFORMANCE OF THE DUTY IMPLIED BY SECS. 6(B) AND 6(D) TO HAVE RULES
GOVERNING MEMBERS' TRANSACTIONS AND RELATIONSHIPS WITH NONMEMBERS.  PP.
349-357. 

(C)  THE STATUTORY SCHEME OF THE SECURITIES EXCHANGE ACT OF 1934 IS
NOT SUFFICIENTLY PERVASIVE TO CREATE A TOTAL EXEMPTION FROM THE
ANTITRUST LAWS; BUT PARTICULAR INSTANCES OF EXCHANGE SELF-REGULATION
WHICH FALL WITHIN THE SCOPE AND PURPOSES OF THE ACT MAY BE REGARDED AS
JUSTIFIED IN ANSWER TO THE ASSERTION OF AN ANTITRUST CLAIM.  PP. 357
361. 

(D)  IN DENYING PETITIONERS THE DIRECT-WIRE CONNECTIONS WITHOUT
ACCORDING THEM THE NOTICE AND HEARING WHICH THEY REQUESTED, THE
EXCHANGE EXCEEDED THE SCOPE OF ITS AUTHORITY UNDER THE SECURITIES
EXCHANGE ACT OF 1934 TO ENGAGE IN SELF-REGULATION.  THEREFORE, IT WAS
NOT JUSTIFIED IN DOING WHAT OTHERWISE WAS AN ANTITRUST VIOLATION.  PP.
361-367. 

SILVER, DOING BUSINESS AS MUNICIPAL SECURITIES CO., ET AL. V. NEW YORK
STOCK EXCHANGE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

WE DEAL HERE TODAY WITH THE QUESTION, OF GREAT IMPORTANCE TO THE
PUBLIC AND THE FINANCIAL COMMUNITY, OF WHETHER AND TO WHAT EXTENT THE
FEDERAL ANTITRUST LAWS APPLY TO SECURITIES EXCHANGES REGULATED BY THE
SECURITIES EXCHANGE ACT OF 1934.  MORE PARTICULARLY, THE QUESTION IS
WHETHER THE NEW YORK STOCK EXCHANGE IS TO BE HELD LIABLE TO A NONMEMBER
BROKER-DEALER UNDER THE ANTITRUST LAWS OR REGARDED AS IMPLIEDLY IMMUNE
THEREFROM WHEN, PURSUANT TO RULES THE EXCHANGE HAS ADOPTED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, IT ORDERS A NUMBER OF ITS MEMBERS TO
REMOVE PRIVATE DIRECT TELEPHONE WIRE CONNECTIONS PREVIOUSLY IN
OPERATION BETWEEN THEIR OFFICES AND THOSE OF THE NONMEMBER, WITHOUT
GIVING THE NONMEMBER NOTICE, ASSIGNING HIM ANY REASON FOR THE ACTION,
OR AFFORDING HIM AN OPPORTUNITY TO BE HEARD. 

   I. 

THE FACTS MATERIAL TO RESOLUTION OF THIS QUESTION ARE NOT IN
DISPUTE.  HAROLD J. SILVER, WHO DIED DURING THE PENDENCY OF THIS
ACTION, ENTERED THE SECURITIES BUSINESS IN DALLAS, TEXAS, IN 1955, BY
ESTABLISHING THE PREDECESSOR OF PETITIONER MUNICIPAL SECURITIES
(MUNICIPAL) TO DEAL PIRMARILY IN MUNICIPAL BONDS.  THE BUSINESS OF
MUNICIPAL HAVING INCREASED STEADILY, SILVER, IN JUNE 1958, ESTABLISHED
PETITIONER MUNICIPAL SECURITIES, INC. (MUNICIPAL, INC.), TO TRADE IN
CORPORATE OVER-THE-COUNTER SECURITIES.  BOTH FIRMS ARE REGISTERED
BROKER-DEALERS AND MEMBERS OF THE NATIONAL ASSOCIATION OF SECURITIES
DEALERS, INC. (NASD); NEITHER IS A MEMBER OF THE RESPONDENT EXCHANGE. 

INSTANTANEOUS COMMUNICATION WITH FIRMS IN THE MAINSTREAM OF THE
SECURITIES BUSINESS IS OF GREAT SIGNIFICANCE TO A BROKER-DEALER NOT A
MEMBER OF THE EXCHANGE, AND SILVER TOOK STEPS TO SEE THAT THIS WAS
ESTABLISHED FOR HIS FIRMS.  MUNICIPAL OBTAINED DIRECT PRIVATE TELEPHONE
WIRE CONNECTIONS WITH THE MUNICIPAL BOND DEPARTMENTS OF A NUMBER OF
SECURITIES FIRMS (THREE OF WHICH WERE MEMBERS OF THE EXCHANGE) AND
BANKS, AND MUNICIPAL, INC., ARRANGED FOR PRIVATE WIRES TO THE CORPORATE
SECURITIES TRADING DEPARTMENTS OF 10 MEMBER FIRMS OF THE EXCHANGE, AS
WELL AS TO THE TRADING DESKS OF A NUMBER OF NONMEMBER FIRMS. 

PURSUANT TO THE REQUIREMENTS OF THE EXCHANGE'S RULES, ALL BUT ONE OF
THE MEMBER FIRMS WHICH HAD GRANTED PRIVATE WIRES TO MUNICIPAL, INC.,
APPLIED TO THE EXCHANGE FOR APPROVAL OF THE CONNECTIONS.  (FN1)  DURING
THE SUMMER OF 1958 THE EXCHANGE GRANTED "TEMPORARY APPROVAL" FOR THESE,
AS WELL AS FOR A DIRECT TELETYPE CONNECTION TO A MEMBER FIRM IN NEW
YORK CITY AND FOR STOCK TICKER SERVICE TO BE FURNISHED TO PETITIONERS
DIRECTLY FROM THE FLOOR OF THE EXCHANGE. 

ON FEBRUARY 12, 1959, WITHOUT PRIOR NOTICE TO SILVER, HIS FIRMS, OR
ANYONE CONNECTED WITH THEM, THE EXCHANGE'S DEPARTMENT OF MEMBER FIRMS
DECIDED TO DISAPPROVE THE PRIVATE WIRE AND RELATED APPLICATIONS. 
NOTICE WAS SENT TO THE MEMBER FIRMS INVOLVED, INSTRUCTING THEM TO
DISCONTINUE THE WIRES, A DIRECTIVE WITH WHICH COMPLIANCE WAS REQUIRED
BY THE EXCHANGE'S CONSTITUTION AND RULES.  THESE FIRMS IN TURN NOTIFIED
SILVER THAT THE PRIVATE WIRES WOULD HAVE TO BE DISCONTINUED, AND THE
EXCHANGE ADVISED HIM DIRECTLY OF THE DISCONTINUANCE OF THE STOCK TICKER
SERVICE.  THE WIRES AND TICKER WERE ALL REMOVED BY THE BEGINNING OF
MARCH.  BY TELEPHONE CALLS, LETTERS, AND A PERSONAL TRIP TO NEW YORK,
SILVER SOUGHT AN EXPLANATION FROM THE EXCHANGE OF THE REASON FOR ITS
DECISION, BUT WAS REPEATEDLY TOLD IT WAS THE POLICY OF THE EXCHANGE NOT
TO DISCLOSE THE REASONS FOR SUCH ACTION.  (FN2) 

PETITIONERS CONTEND THAT THEIR VOLUME OF BUSINESS DROPPED
SUBSTANTIALLY THEREAFTER AND THAT THEIR PROFITS FELL, DUE TO A
COMBINATION OF FORCES ALL STEMMING FROM THE REMOVAL OF THE PRIVATE
WIRES - THEIR CONSEQUENT INABILITY TO OBTAIN QUOTATIONS QUICKLY, THE
INCONVENIENCE TO OTHER TRADERS IN CALLING PETITIONERS, AND THE STIGMA
ATTACHING TO THE DISAPPROVAL.  AS A RESULT OF THIS CHANGE IN FORTUNES,
PETITIONERS CONTEND, MUNICIPAL, INC., SOON CEASED FUNCTIONING AS AN
OPERATING BUSINESS ORGANIZATION, AND MUNICIPAL HAS REMAINED IN BUSINESS
ONLY ON A GREATLY DIMINISHED SCALE. 

THE PRESENT LITIGATION WAS COMMENCED BY SILVER AS PROPRIETOR OF
MUNICIPAL AND BY MUNICIPAL, INC., AGAINST THE EXCHANGE IN APRIL 1959,
IN THE SOUTHERN DISTRICT OF NEW YORK.  (FN3)  THREE CAUSES OF ACTION
WERE ASERTED.  THE FIRST, SEEKING AN INJUNCTION AND TREBLE DAMAGES,
(FN4) ALLEGED THAT THE EXCHANGE HAD, IN VIOLATION OF SECS. 1 AND 2 OF
THE SHERMAN ACT, CONSPIRED WITH ITS MEMBER FIRMS TO DEPRIVE PETITIONERS
OF THEIR PRIVATE WIRE CONNECTIONS AND STOCK TICKER SERVICE.  THE SECOND
ALLEGED THAT THE EXCHANGE HAD TORTIOUSLY INDUCED ITS MEMBER FIRMS TO
BREACH THEIR CONTRACTS FOR WIRE CONNECTIONS WITH PETITIONERS, AND THE
THIRD ASSERTED THAT THE EXCHANGE'S ACTION CONSTITUTED A TORT OF
INTENTIONAL AND WRONGFUL HARM INFLICTED WITHOUT REASONABLE CAUSE. 

PETITIONERS MOVED FOR SUMMARY JUDGMENT ON THE ANTITRUST CLAIM, AND
FOR AN ACCOMPANYING PERMANENT INJUNCTION AGAINST THE EXCHANGE'S
COERCION OF ITS MEMBERS INTO REFUSING TO PROVIDE PRIVATE WIRE
CONNECTIONS AND AGAINST THE EXCHANGE'S REFUSAL TO REINSTATE THE STOCK
TICKER SERVICE.  THE DISTRICT JUDGE, AFTER CONSIDERING THE RESPECTIVE
AFFIDAVITS OF THE PARTIES, GRANTED SUMMARY JUDGMENT AND A PERMANENT
INJUNCTION AS TO THE PRIVATE WIRE CONNECTIONS, 196 F. SUPP. 209,
HOLDING THAT THE ANTITRUST LAWS APPLIED TO THE EXCHANGE, AND THAT ITS
DIRECTIVE AND THE ENSUING COMPLIANCE BY ITS MEMBERS CONSTITUTED A
COLLECTIVE REFUSAL TO CONTINUE THE WIRES AND WAS A PER SE VIOLATION OF
SEC. 1 OF THE SHERMAN ACT.  THE JUDGE SO HELD ON THE BASIS THAT,
ALTHOUGH THE EXCHANGE HAD THE POWER TO REGULATE THE CONDUCT OF ITS
MEMBERS IN DEALING WITH LISTED SECURITIES, ITS MEMBERS' RELATIONS WITH
NONMEMBERS WITH REGARD TO OVER-THE-COUNTER SECURITIES WERE NOT
SUFFICIENTLY GERMANE TO THE FULFILLMENT OF ITS DUTIES OF SELF
REGULATION UNDER THE SECURITIES EXCHANGE ACT TO WARRANT ITS BEING
EXCUSED FROM HAVING TO ANSWER FOR RESTRAINTS OF TRADE SUCH AS OCCURRED
HERE BY REMOVAL OF THE PRIVATE WIRES.  HE LEFT THE ISSUES OF TREBLE
DAMAGES AND COSTS TO A LATER TRIAL.  WITH REFERENCE TO THE STOCK TICKER
SERVICE, THE JUDGE HELD THAT THERE WERE TRIABLE ISSUES OF FACT AS TO
WHETHER THE EXCHANGE'S ACTION COULD BE CONSIDERED TO HAVE BEEN THE
CONCERTED ACTION OF ITS MEMBERS AND AS TO WHETHER, IF THE EXCHANGE WAS
TO BE REGARDED AS HAVING ACTED BY ITSELF, ANY VIOLATION OF SEC. 2 OF
THE SHERMAN ACT HAD OCCURRED.  HE THEREFORE DENIED SUMMARY JUDGMENT AS
TO THAT ASPECT OF PETITIONERS' CLAIMS. 

ON THE EXCHANGE'S APPEAL FROM THE GRANT OF PARTIAL SUMMARY JUDGMENT,
THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED OVER
THE DISSENT OF ONE JUDGE.  302 F.2D 714.  THE COURT HELD THAT THE
SECURITIES EXCHANGE ACT "GIVES THE COMMISSION AND THE EXCHANGE
DISCIPLINARY POWERS OVER MEMBERS OF THE EXCHANGE WITH RESPECT TO THEIR
TRANSACTIONS IN OVER-THE-COUNTER SECURITIES, AND THAT THE POLICY OF THE
STATUTE REQUIRES THAT THE EXCHANGE EXERCISE THESE POWERS FULLY."  ID.,
AT 720.  THIS MEANT THAT "THE ACTION OF THE EXCHANGE IN BRINGING ABOUT
THE CANCELLATION OF THE PRIVATE WIRE CONNECTIONS  ...  WAS WITHIN THE
GENERAL SCOPE OF THE AUTHORITY OF THE EXCHANGE AS DEFINED BY THE 1934
ACT," ID., AT 716, AND DICTATED A CONCLUSION THAT "THE EXCHANGE IS
EXEMPT FROM THE RESTRICTIONS OF THE SHERMAN ACT BECAUSE IT IS
EXERCISING A POWER WHICH IT IS REQUIRED TO EXERCISE BY THE SECURITIES
EXCHANGE ACT," ID., AT 721.  THE COURT, HOWEVER, DID NOT EXCLUDE THE
POSSIBILITY THAT THE EXCHANGE MIGHT BE LIABLE ON SOME OTHER THEORY, AND
REMANDED THE CASE FOR CONSIDERATION OF PETITIONERS' SECOND AND THIRD
CAUSES OF ACTION. 

THIS COURT GRANTED CERTIORARI.  371 U.S. 808.  WHAT IS BEFORE US IS
ONLY SO MUCH OF THE FIRST CAUSE OF ACTION AS RELATES TO THE COLLECTIVE
REFUSAL TO CONTINUE THE PRIVATE WIRE CONNECTIONS, SINCE PETITIONERS DID
NOT ATTEMPT TO APPEAL FROM THE DENIAL OF SUMMARY JUDGMENT AS TO THE
PORTION RELATING TO THE DISCONTINUANCE OF THE STOCK TICKER SERVICE. 
SUMMARY JUDGMENT WAS NEVER SOUGHT AS TO THE SECOND AND THIRD CAUSES OF
ACTION, HENCE THOSE ARE ALSO NOT IN ISSUE AT THE PRESENT TIME. 

II. 

THE FUNDAMENTAL ISSUE CONFRONTING US IS WHETHER THE SECURITIES
EXCHANGE ACT HAS CREATED A DUTY OF EXCHANGE SELF-REGULATION SO
PERVASIVE AS TO CONSTITUTE AN IMPLIED REPEALER OF OUR ANTITRUST LAWS,
THEREBY EXEMPTING THE EXCHANGE FROM LIABILITY IN THIS AND SIMILAR
CASES. 

       A. 

IT IS PLAIN, TO BEGIN WITH, THAT REMOVAL OF THE WIRES BY COLLECTIVE
ACTION OF THE EXCHANGE AND ITS MEMBERS WOULD, HAD IT OCCURRED IN A
CONTEXT FREE FROM OTHER FEDERAL REGULATION, CONSTITUTE A PER SE
VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  THE CONCERTED ACTION OF THE
EXCHANGE AND ITS MEMBERS HERE WAS, IN SIMPLE TERMS, A GROUP BOYCOTT
DEPRIVING PETITIONERS OF A VALUABLE BUSINESS SERVICE WHICH THEY NEEDED
IN ORDER TO COMPETE EFFECTIVELY AS BROKER-DEALERS IN THE OVER-THE
COUNTER SECURITIES MARKET.  FASHION ORIGINATORS' GUILD V. FEDERAL TRADE
COMM'N, 312 U.S. 457; ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1;
KLOR'S, INC., V. BROADWAY-HALE STORES, INC., 359 U.S. 207; RADIANT
BURNERS, INC., V. PEOPLES GAS LIGHT & COKE CO., 364 U.S. 656.  UNLIKE
LISTED SECURITIES, THERE IS NO CENTRAL TRADING PLACE FOR SECURITIES
TRADED OVER THE COUNTER.  THE MARKET IS ESTABLISHED BY TRADERS IN THE
NUMEROUS FIRMS ALL OVER THE COUNTRY THROUGH A PROCESS OF CONSTANT
COMMUNICATION TO ONE ANOTHER OF THE LATEST OFFERS TO BUY AND SELL.  THE
PRIVATE WIRE CONNECTION, WHICH ALLOWS COMMUNICATION TO OCCUR WITH A
FLIP OF A SWITCH, IS AN ESSENTIAL PART OF THIS PROCESS.  WITHOUT THE
INSTANTANEOUSLY AVAILABLE MARKET INFORMATION PROVIDED BY PRIVATE WIRE
CONNECTIONS, AN OVER-THE-COUNTER DEALER IS HAMPERED SUBSTANTIALLY IN
HIS CRUCIAL ENDEAVOR - TO BUY, WHETHER IT BE FOR CUSTOMERS OR ON HIS
OWN ACCOUNT, AT THE LOWEST QUOTED PRICE AND SELL AT THE HIGHEST QUOTED
PRICE.  WITHOUT MEMBERSHIP IN THE NETWORK OF SIMULTANEOUS
COMMUNICATION, THE OVER-THE-COUNTER DEALER LOSES A SIGNIFICANT VOLUME
OF TRADING WITH OTHER MEMBERS OF THE NETWORK WHICH WOULD COME TO HIM AS
A RESULT OF HIS EASY ACCESSIBILITY.  THESE IMPORTANT BUSINESS
ADVANTAGES WERE TAKEN AWAY FROM PETITIONERS BY THE GROUP ACTION OF THE
EXCHANGE AND ITS MEMBERS.  SUCH "CONCERTED REFUSALS BY TRADERS TO DEAL
WITH OTHER TRADERS  ...  HAVE LONG BEEN HELD TO BE IN THE FORBIDDEN
CATEGORY," KLOR'S, INC., V. BROADWAY-HALE STORES, INC., 359 U.S., AT
212, OF RESTRAINTS WHICH "BECAUSE OF THEIR INHERENT NATURE OR EFFECT
...  INJURIOUSLY RESTRAINED TRADE," UNITED STATES V. AMERICAN TOBACCO
CO., 221 U.S. 106, 179.  (FN5)  HENCE, ABSENT ANY JUSTIFICATION DERIVED
FROM THE POLICY OF ANOTHER STATUTE OR OTHERWISE, THE EXCHANCE ACTED IN
VIOLATION OF THE SHERMAN ACT.  IN THIS CASE, HOWEVER, THE PRESENCE OF
ANOTHER STATUTORY SCHEME, THAT OF THE SECURITIES EXCHANGE ACT OF 1934,
MEANS THAT SUCH A CONCLUSION IS ONLY THE BEGINNING, NOT THE END, OF
INQUIRY. 

                         B. 

THE DIFFICULT PROBLEM HERE ARISES FROM THE NEED TO RECONCILE PURSUIT
OF THE ANTITRUST AIM OF ELIMINATING RESTRAINTS ON COMPETITION WITH THE
EFFECTIVE OPERATION OF A PUBLIC POLICY CONTEMPLATING THAT SECURITIES
EXCHANGES WILL ENGAGE IN SELF-REGULATION WHICH MAY WELL HAVE
ANTICOMPETITIVE EFFECTS IN GENERAL AND IN SPECIFIC APPLICATIONS. 

THE NEED FOR STATUTORY REGULATION OF SECURITIES EXCHANGES AND THE
NATURE OF THE DUTY OF SELF-REGULATION IMPOSED BY THE SECURITIES
EXCHANGE ACT ARE PROPERLY UNDERSTOOD IN THE CONTEXT OF A CONSIDERATION
OF BOTH THE ECONOMIC ROLE PLAYED BY EXCHANGES AND THE HISTORICAL
SETTING OF THE ACT.  STOCK EXCHANGES PERFORM AN IMPORTANT FUNCTION IN
THE ECONOMIC LIFE OF THIS COUNTRY.  THEY SERVE, FIRST OF ALL, AS AN
INDISPENSABLE MECHANISM THROUGH WHICH CORPORATE SECURITIES CAN BE
BOUGHT AND SOLD.  TO CORPORATE ENTERPRISE SUCH A MARKET MECHANISM IS A
FUNDAMENTAL ELEMENT IN FACILITATING THE SUCCESSFUL MARSHALING OF LARGE
AGGREGATIONS OF FUNDS THAT WOULD OTHERWISE BE EXTREMELY DIFFICULT OF
ACCESS.  TO THE PUBLIC THE EXCHANGES ARE AN INVESTMENT CHANNEL WHICH
PROMISES READY CONVERTIBILITY OF STOCK HOLDINGS INTO CASH.  THE
IMPORTANCE OF THESE FUNCTIONS IN DOLLAR TERMS IS VAST - IN 1962 THE NEW
YORK STOCK EXCHANGE, BY FAR THE LARGEST OF THE 14 EXCHANGES WHICH ARE
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION, HAD $47.4
BILLION OF TRANSACTIONS IN STOCKS, RIGHTS AND WARRANTS (A FIGURE WHICH
REPRESENTED 86% OF THE TOTAL DOLLAR VOLUME ON REGISTERED EXCHANGES). 
REPORT OF THE SPECIAL STUDY OF SECURITIES MARKETS (1963), C. IB, P. 6. 
(FN6)  MOREOVER, BECAUSE TRADING ON THE EXCHANGES, IN ADDITION TO
ESTABLISHING THE PRICE LEVEL OF LISTED SECURITIES, AFFECTS SECURITIES
PRICES IN GENERAL, AND BECAUSE SUCH TRANSACTIONS ARE OFTEN REGARDED AS
AN INDICATOR OF OUR NATIONAL ECONOMIC HEALTH, THE SIGNIFICANCE OF THE
EXCHANGES IN OUR ECONOMY CANNOT BE MEASURED ONLY IN TERMS OF THE DOLLAR
VOLUME OF TRADING.  RECOGNITION OF THE IMPORTANCE OF THE EXCHANGES'
ROLE LED THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE TO
DECLARE IN ITS REPORT PRECEDING THE ENACTMENT OF THE SECURITIES
EXCHANGE ACT OF 1934 THAT "THE GREAT EXCHANGES OF THIS COUNTRY UPON
WHICH MILLIONS OF DOLLARS OF SECURITIES ARE SOLD ARE AFFECTED WITH A
PUBLIC INTEREST IN THE SAME DEGREE AS ANY OTHER GREAT UTILITY."  H.R.
REP. NO. 1383, 73D CONG., 2D SESS. 15 (1934).    THE EXCHANGES ARE BY
THEIR NATURE BODIES WITH A LIMITED NUMBER OF MEMBERS, EACH OF WHICH
PLAYS A CERTAIN ROLE IN THE CARRYING OUT OF AN EXCHANGE'S ACTIVITIES. 
THE LIMITED-ENTRY FEATURE OF EXCHANGES LED HISTORICALLY TO THEIR BEING
TREATED BY THE COURTS AS PRIVATE CLUBS, BELTON V. HATCH, 109 N.Y. 593,
17 N.E. 225 (1888), AND TO THEIR BEING GIVEN GREAT LATITUDE BY THE
COURTS IN DISCIPLING ERRANT MEMBERS, SEE WESTWOOD AND HOWARD, SELF
GOVERNMENT IN THE SECURITIES BUSINESS, 17 LAW AND CONTEMP.  PROB.  518
525 (1952).  AS EXCHANGES BECAME A MORE AND MORE IMPORTANT ELEMENT IN
OUR NATION'S ECONOMIC AND FINANCIAL SYSTEM, HOWEVER, THE PRIVATE-CLUB
ANALOGY BECAME INCREASINGLY INAPPOSITE AND THE UNGOVERNED SELF
REGULATION BECAME MORE AND MORE OBVIOUSLY INADEQUATE, WITH
ACCELERATINGLY GRAVE CONSEQUENCES.  THIS IMPOTENCY ULTIMATELY LED TO
THE ENACTMENT OF THE 1934 ACT.  THE HOUSE COMMITTEE REPORT SUMMED UP
THE LONG-DEVELOPING PROBLEM IN DISCUSSING THE GENERAL PURPOSES OF THE
BILL: 

"THE FUNDAMENTAL FACT BEHIND THE NECESSITY FOR THIS BILL IS THAT THE
LEADERS OF PRIVATE BUSINESS, WHETHER BECAUSE ON INERTIA, PRESSURE OF
VESTED INTERESTS, LACK OF ORGANIZATION, OR OTHERWISE, HAVE NOT SINCE
THE WAR BEEN ABLE TO ACT TO PROTECT THEMSELVES BY COMPELLING A
CONTINUOUS AND ORDERLY PROGRAM OF CHANGE IN METHODS AND STANDARDS OF
DOING BUSINESS TO MATCH THE DEGREE TO WHICH THE ECONOMIC SYSTEM HAS
ITSLEF BEEN CONSTATNLY CHANGING  ...  .  THE REPETITION IN THE SUMMER
OF 1933 OF THE BLINDNESS AND ABUSES OF 1929 HAS CONVINCED A PATIENT
PUBLIC THAT ENLIGHTENED SELF-INTEREST IN PRIVATE LEADERSHIP IS NOT
SUFFICIENTLY POWERFUL TO EFFECT THE NECESSARY CHANGES ALONE - THAT
PRIVATE LEADERSHIP SEEKING TO MAKE CHANGES MUST BE GIVEN GOVERNMENT
HELP AND PROTECTION."  H.R. REP. NO. 1383, SUPRA, AT 3. 

IT WAS, THEREFORE, THE COMBINATION OF THE ENORMOUS GROWTH IN THE
POWER AND IMPACT OF EXCHANGES IN OUR ECONOMY, AND THEIR INABILITY AND
UNWILLINGNESS TO CURB ABUSES WHICH HAD INCREASINGLY GRAVE IMPLICATIONS
BECAUSE OF THIS GROWTH, THAT MOVED CONGRESS TO ENACT THE SECURITIES
EXCHANGE ACT OF 1934.  S. REP. NO. 792, 73D CONG., 2D SESS. 2-5 (1934);
H.R.  REP. NO. 1383, SUPRA, AT 2-5. 

THE PATTERN OF GOVERNMENTAL ENTRY, HOWEVER, WAS BY NO MEANS ONE OF
TOTAL DISPLACEMENT OF THE EXCHANGES' TRADITIONAL PROCESS OF SELF
REGULATION.  THE INTENTION WAS RATHER, AS MR. JUSTICE DOUGLAS SAID,
WHILE CHAIRMAN OF THE S.E.C., ONE OF "LETTING THE EXCHANGES TAKE THE
LEADERSHIP WITH GOVERNMENT PLAYING A RESIDUAL ROLE.  GOVERNMENT WOULD
KEEP THE SHOTGUN, SO TO SPEAK, BEHIND THE DOOR, LOADED, WELL OILED,
CLEANED, READY FOR USE BUT WITH THE HOPE IT WOULD NEVER HAVE TO BE
USED."  DOUGLAS, DEMOCRACY AND FINANCE (ALLEN ED. 1940), 82.  THUS THE
SENATE COMMITTEE REPORT STRESSED THAT "THE INITIATIVE AND
RESPONSIBILITY FOR PROMULGATING REGULATIONS PERTAINING TO THE
ADMINSTRATION OF THEIR ORDINARY AFFAIRS REMAIN WITH THE EXCHANGES
THEMSELVES.  IT IS ONLY WHERE THEY FAIL ADEQUATELY TOPROVED PROTECTION
TO INVESTORS THAT THE COMMISSION IS AUTHORIZED TO STEP IN AND COMPEL
THEM TO DO SO."  S. REP. NO. 792, SUPRA, AT 13.  THE HOUSE COMMITTEE
REPORT ADDED THE HOPE THAT THE BILL WOULD GIVE THE EXCHANGES SUFFICIENT
POWER TO REFORM THEMSELVES WITHOUT INTERVENTION BY THE COMMISSION. 
H.R. REP. NO. 1383, SUPRA, AT 15.  SEE ALSO 2 LOSS, SECURITIES
REGULATION (2D ED. 1961), 1175-1178, 1180-1182. 

THUS AROSE THE FEDERALLY MANDATED DUTY OF SELF-POLICING BY
EXCHANGES.  INSTEAD OF GIVING THE COMMISSION THE POWER TO CURB SPECIFIC
INSTANCES OF ABUSE, THE ACT PLACED IN THE EXCHANGES A DUTY TO REGISTER
WITH TH COMMISSION, SEC. 5, 15 U.S.C. SEC. 78E, AND DECREED THAT
REGISTRATION COULD NOT BE GRANTED UNLESS THE EXCHANGE SUBMITTED COPIES
OF ITS RULES, SEC. 6(A)(3), 15 U.S.C. SEC. 78FA)(3), AND UNLESS SUCH
RULES WERE "JUST AND ADEQUATE TO INSURE FAIR DEALING AND TO PROTECT
INVESTORS," SEC. 6(D), 15 U.S.C. SEC. 78FD).  THE GENERAL DIMENSIONS OF
THE DUTY OF SELF-REGULATION ARE SUGGESTED BY SEC. 19(B) OF THE ACT, 15
U.S.C. SEC. 78SB), WHICH GIVES THE COMMISSION POWER TO ORDER CHANGES IN
EXCHANGE RULES RESPECTING A NUMBER OF SUBJECTS, WHICH ARE SET FORTH IN
THE MARGIN.  (FN7) 

ONE ASPECT OF THE STATUTORILY IMPOSED DUTY OF SELF-REGULATION IS THE
OBLIGATION TO FORMULATE RULES GOVERNING THE CONDUCT OF EXCHANGE
MEMBERS.  THE ACT SPECIFICALLY REQUIRES THAT REGISTRATION CANNOT BE
GRANTED "UNLESS THE RULES OF THE EXCHANGE INCLUDE PROVISION FOR THE
EXPULSION, SUSPENSION, OR DISCIPLINING OF A MEMBER FOR CONDUCT OR
PROCEEDING INCONSISTENT WITH JUST AND EQUITABLE PRINCIPLES OF TRADE
...  ,"  SEC. 6(B), 15 U.S.C.  SEC. 78FB).  IN ADDITION, THE GENERAL
REQUIREMENT OF SEC. 6(D) THAT AN EXCHANGE'S RULES BE "JUST AND ADEQUATE
TO INSURE FAIR DEALING AND TO PROTECT INVESTORS" HAS OBVIOUS RELEVANCE
TO THE AREA OF RULES REGULATING THE CONDUCT OF AN EXCHANGE'S MEMBERS. 

THE SEC. 6(B) AND SEC. 6(D) DUTIES TAKEN TOGETHER HAVE THE BROADEST
IMPLICATION IN RELATION TO THE PRESENT PROBLEM, FOR MEMBERS INEVITABLY
TRADE ON THE OVER-THE-COUNTER MARKET IN ADDITION TO DEALING IN LISTED
SECURITIES, (FN8) AND SUCH TRADING INEXORABLY BRINGS CONTACT AND
DEALINGS WITH NONMEMBER FIRMS WHICH DEAL IN OR SPECIALIZE IN OVER-THE
COUNTER SECURITIES.  IT IS NO ACCIDENT THAT THE EXCHANGE'S CONSTITUTION
AND RULES ARE PERMEATED WITH INSTANCES OF REGULATION OF MEMBERS'
RELATIONSHIPS WITH NONMEMBERS INCLUDING NONMEMBER BROKER-DEALERS. 
(FN9)  A MEMBER'S PURCHASE OF UNLISTED SECURITIES FOR ITSELF OR ON
BEHALF OF ITS CUSTOMER FROM A BOILER-SHOP OPERATION (FN10) CREATES AN
OBVIOUS DANGER OF LOSS TO THE PRINCIPAL IN THE TRANSACTION, AND SALE OF
SECURITIES TO A NONMEMBER INSUFFICIENTLY CAPITALIZED TO PROTECT
CUSTOMER'S RIGHTS CREATES SIMILAR RISKS.  IN ADDITION TO THE POTENTIAL
FINANCIAL INJURY TO THE INVESTING PUBLIC AND EXCHANGE MEMBERS THAT IS
INHERENT IN THESE TRANSACTIONS AS WELL AS IN DEALINGS WITH NONMEMBERS
WHO ARE UNRELIABLE FOR ANY OTHER REASON, ALL SUCH INTERCOURSE CARRIES
WITH IT THE GRAVEST DANGER OF ENGENDERING IN THE PUBLIC A LOSS OF
CONFIDENCE IN THE EXCHANGE AND ITS MEMBERS, A KIND OF DAMAGE WHICH CAN
SIGNIFICANTLY IMPAIR FULFILLMENT OF THE EXCHANGE'S FUNCTION IN OUR
ECONOMY.  RULES WHICH REGULATE EXCHANGE MEMBERS' DOING OF BUSINESS WITH
NONMEMBERS IN THE OVER-THE-COUNTER MARKET ARE THEREFORE VERY MUCH
PERTINENT TO THE AIMS OF SELF-REGULATION UNDER THE 1934 ACT. 
TRANSACTIONS WITH NONMEMBERS UNDER THE CIRCUMSTANCES MENTIONED CAN ONLY
BE DESCRIBED AS "INCONSISTENT WITH JUST AND EQUITABLE PRINCIPLES OF
TRADE," AND RULES REGULATING SUCH DEALING ARE INDEED "JUST AND ADEQUATE
TO INSURE FAIR DEALING AND TO PROTECT INVESTORS." 

THE EXCHANGE'S CONSTITUTIONAL PROVISION AND RULES RELATING TO PRIVATE
WIRE CONNECTIONS (FN11) ARE UNQUESTIONABLY PART OF THIS FULFILLMENT OF
THE SEC. 6(B) AND SEC. 6(D) DUTIES, FOR SUCH WIRES BETWEEN MEMBERS AND
NONMEMBERS FACILITATE TRADING IN AND EXCHANGE OF INFORMATION ABOUT
UNLISTED SECURITES, AND SUCH CONTACT WITH AN UNRELIABLE NONMEMBER NOT
ONLY MAY FURTHER HIS BUSINESS UNDESIRABLY, BUT MAY INJURE THE MEMBER OR
THE MEMBER'S CUSTOMER ON WHOSE BEHALF THE CONTACT IS MADE AND
ULTIMATELY IMPERIL THE FUTURE STATUS OF THE EXCHANGE BY SAPPING PUBLIC
CONFIDENCE.  IN LIGHT OF THE IMPORTANT ROLE OF EXCHANGES IN OUR ECONOMY
AND THE 1934 ACT'S DESIGN OF GIVING THE EXCHANGES A MAJOR PART IN
CURBING ABUSES BY OBLIGATING THEM TO REGULATE THEMSELVES, IT APPEARS
CONCLUSIVELY - CONTRARY TO THE DISTRICT COURT'S CONCLUSION - THAT THE
RULES APPLIED IN THE PRESENT CASE ARE GERMANE TO PERFORMANCE OF THE
DUTY, IMPLIED BY SEC. 6(B) AND SEC. 6(D), TO HAVE RULES GOVERNING
MEMBERS' TRANSACTIONS AND RELATIONSHIPS WITH NONMEMBERS.  THE
EXCHANGE'S ENFORCEMENT OF SUCH RULES INEVITABLY AFFECTS THE NONMEMBER
INVOLVED, OFTEN (AS HERE) FAR MORE SERIOUSLY THAN IT AFFECTS THE
MEMBERS IN QUESTION.  THE SWEEPING OF THE NONMEMBERS INTO THE CURRENTS
OF THE EXCHANGE'S PROCESS OF SELF-REGULATION IS THEREFORE UNAVOIDABLE;
THE CASE CANNOT BE DISPOSED OF BY HOLDING AS THE DISTRICT JUDGE DID
THAT THE SUBSTANTIVE ACT OF REGULATION ENGAGED IN HERE WAS OUTSIDE THE
BOUNDARIES OF THE PUBLIC POLICY ESTABLISHED BY THE SECURITIES EXCHANGE
ACT OF 1934. 

   C. 

BUT, IT DOES NOT FOLLOW THAT THE CASE BE DISPOSED OF, AS THE COURT OF
APPEALS DID, BY HOLDING THAT SINCE THE EXCHANGE HAS A GENERAL POWER TO
ADOPT RULES GOVERNING ITS MEMBERS' RELATIONS WITH NONMEMBERS,
PARTICULAR APPLICATIONS OF SUCH RULES ARE THEREFORE OUTSIDE THE PURVIEW
OF THE ANTITRUST LAWS.  CONTRARY TO THE CONCLUSIONS REACHED BY THE
COURTS BELOW, THE PROPER APPROACH TO THIS CASE, IN OUR VIEW, IS AN
ANALYSIS WHICH RECONCILES THE OPERATION OF BOTH STATUTORY SCHEMES WITH
ONE ANOTHER RATHER THAN HOLDING ONE COMPLETELY OUSTED. 

THE SECURITIES EXCHANGE ACT CONTAINS NO EXPRESS EXEMPTION FROM THE
ANTITRUST LAWS OR, FOR THAT MATTER, FROM ANY OTHER STATUTE.  THIS MEANS
THAT ANY REPEALER OF THE ANTITRUST LAWS MUST BE DISCERNED AS A MATTER
OF IMPLICATION, AND "IT IS A CARDINAL PRINCIPLE OF CONSTRUCTION THAT
REPEALS BY IMPLICATION ARE NOT FAVORED."  UNITED STATES V. BORDEN CO.,
308 U.S. 188, 198; GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 456
457; CALIFORNIA V. FEDERAL POWER COMM'N, 369 U.S. 482, 485.  REPEAL IS
TO BE REGARDED AS IMPLIED ONLY IF NECESSARY TO MAKE THE SECURITIES
EXCHANGE ACT WORK, AND EVEN THEN ONLY TO THE MINIMUM EXTENT NECESSARY. 
THIS IS THE GUIDING PRINCIPLE TO RECONCILIATION OF THE TWO STATUTORY
SCHEMES. 

ALTHOUGH TH ACT GIVES TO THE SECURITIES AND EXCHANGE COMMISSION THE
POWER TO REQUEST EXCHANGES TO MAKE CHANGES IN THEIR RULES, SEC. 19(B),
15 U.S.C. SEC. 78SB), AND IMPLIEDLY, THEREFORE, TO DISAPPROVE ANY RULES
ADOPTED BY AN EXCHANGE, SEE ALSO SEC. 6(A)(4), 15 U.S.C. SEC. 78FA)(4),
IT DOES NOT GIVE THE COMMISSION JURISDICTION TO REVIEW PARTICULAR
INSTANCES OF ENFORCEMENT OF EXCHANGE RULES.  SEE 2 LOSS, OP. CIT.,
SUPRA, AT 1178; WESTWOOD AND HOWARD, SUPRA, 17 LAW & CONTEMP.  PROB.,
AT 525.  THIS ASPECT OF THE STATUTE, FOR ONE THING, OBVIATES ANY NEED
TO CONSIDER WHETHER PETITIONERS WERE REQUIRED TO RESORT TO THE
COMMISSION FOR RELIEF BEFORE COMING INTO COURT.  COMPARE GEORGIA V.
PENNSYLVANIA R. CO., 324 U.S., AT 455.  MOREOVER, THE COMMISSION'S LACK
OF JURISDICTION OVER PARTICULAR APPLICATIONS OF EXCHANGE RULES MEANS
THAT THE QUESTION OF ANTITRUST EXEMPTION DOES NOT INVOLVE ANY PROBLEM
OF CONFLICT OR COEXTENSIVENESS OF COVERAGE WITH THE AGENCY'S REGULATORY
POWER.  SEE GEORGIA V. PENNSYLVANIA R. CO., SUPRA; UNITED STATES V.
RADIO CORP. OF AMERICA, 358 U.S. 334; CALIFORNIA V. FEDERAL POWER
COMM'N, SUPRA; PAN AMERICAN WORLD AIRWAYS, INC., V. UNITED STATES, 371
U.S. 296.  (FN12)  THE ISSUE IS ONLY THAT OF THE EXTENT TO WHICH THE
CHARACTER AND OBJECTIVES OF THE DUTY OF EXCHANGE SELF-REGULATION
CONTEMPLATED BY TH SECURITIES EXCHANGE ACT ARE INCOMPATIBLE WITH THE
MAINTENANCE OF AN ANTITRUST ACTION.  COMPARE MARYLAND & VA. MILK
PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458. 

THE ABSENCE OF COMMISSION JURISDICTION, BESIDES DEFINING THE LIMITS
OF THE INQUIRY, CONTRIBUTES TO ITS SOLUTION.  THERE IS NOTHING BUILT
INTO THE REGULATORY SCHEME WHICH PERFORMS THE ANTITRUST FUNCTION OF
INSURING THAT AN EXCHANGE WILL NOT IN SOME CASES APPLY ITS RULES SO AS
TO DO INJURY TO COMPETITION WHICH CANNOT BE JUSTIFIED AS FURTHERING
LEGITIMATE SELF-REGULATIVE ENDS.  BY PROVIDING NO AGENCY CHECK ON
EXCHANGE BEHAVIOR IN PARTICULAR CASES, CONGRESS LEFT THE REGULATORY
SCHEME SUBJECT TO "THE INFLUENCES OF  ...  (IMPROPER COLLECTIVE ACTION)
OVER WHICH THE COMMISSION HAS NO AUTHORITY BUT WHICH IF PROVEN TO EXIST
CAN ONLY HINDER THE COMMISSION IN THE TASKS WITH WHICH IT IS
CONFRONTED," GEORGIA V. PENNSYLVANIA R. CO., 324 U.S., AT 460.  SEE
UNITED STATES V. BORDEN CO., 308 U.S., AT 200; MARYLAND & VA. MILK
PRODUCERS ASSN. V. UNITED STATES, 362 U.S., AT 465-466.  ENFORCEMENT OF
EXCHANGE RULES, PARTICULARLY THOSE OF THE NEW YORK STOCK EXCHANGE WITH
ITS IMMENSE ECONOMIC POWER, MAY WELL, IN GIVEN CASES, RESULT IN
COMPETITIVE INJURY TO AN ISSUER, A NONMEMBER BROKER-DEALER, OR ANOTHER
WHEN THE IMPOSITION OF SUCH INJURY IS NOT WITHIN THE SCOPE OF THE GREAT
PURPOSES OF THE SECURITIES EXCHANGE ACT.  SUCH UNJUSTIFIED SELF
REGULATORY ACTIVITY CAN ONLY DIMINISH PUBLIC RESPECT FOR AND CONFIDENCE
IN THE INTEGRITY AND EFFICACY OF THE EXCHANGE MECHANISM.  SOME FORM OF
REVIEW OF EXCHANGE SELF-POLICING, WHETHER BY ADMINISTRATIVE AGENCY OR
BY THE COURTS, IS THEREFORE NOT AT ALL INCOMPATIBLE WITH THE
FULFILLMENT OF THE AIMS OF THE SECURITIES EXCHANGE ACT.  ONLY THIS YEAR
S.E.C. CHAIRMAN CARY OBSERVED THAT "SOME GOVERNMENT OVERSIGHT IS
WARRANTED, INDEED NECESSARY, TO INSURE THAT ACTION IN THE NAME OF SELF
REGULATION IS NEITHER DISCRIMINATORY NOR CAPRICIOUS."  CARY, SELF
REGULATION IN THE SECURITIES INDUSTRY, 49 A.B.A.J. 244, 246 (1963). 
(FN13)  SINCE THE ANTITRUST LAWS SERVE, AMONG OTHER THINGS, TO PROTECT
COMPETITIVE FREEDOM, I.E., THE FREEDOM OF INDIVIDUAL BUSINESS UNITS TO
COMPETE UNHINDERED BY THE GROUP ACTION OF OTHERS, IT FOLLOWS THAT THE
ANTITRUST LAWS ARE PECULIARLY APPROPRIATE AS A CHECK UPON
ANTICOMPETITIVE ACTS OF EXCHANGES WHICH CONFLICT WITH THEIR DUTY TO
KEEP THEIR OPERATIONS AND THOSE OF THEIR MEMBERS HONEST AND VIABLE. 
APPLICABILITY OF THE ANTITRUST LAWS, THEREFORE, RESTS ON THE NEED FOR
VINDICATION OF THEIR POSITIVE AIM OF INSURING COMPETITIVE FREEDOM. 
DENIAL OF THEIR APPLICABILITY WOULD DEFEAT THE CONGRESSIONAL POLICY
REFLECTED IN THE ANTITRUST LAWS WITHOUT SERVING THE POLICY OF THE
SECURITIES EXCHANGE ACT.  SHOULD REVIEW OF EXCHANGE SELF-REGULATION BE
PROVIDED THROUGH A VEHICLE OTHER THAN THE ANTITRUST LAWS, A DIFFERENT
CASE AS TO ANTITRUST EXEMPTION WOULD BE PRESENTED.  SEE NOTE 12,
SUPRA.    YET IT IS ONLY FRANK TO ACKNOWLEDGE THAT THE ABSENCE OF POWER
IN THE COMMISSION TO REVIEW PARTICULAR EXCHANGE EXERCISES OF SELF
REGULATION DOES CREATE PROBLEMS FOR THE EXCHANGE.  THE ENTIRE PUBLIC
POLICY OF SELF-REGULATION, BEGINNING WITH THE IDEA THAT THE EXCHANGE
MAY SET UP BARRIERS TO MEMBERSHIP, CONTEMPLATES THAT THE EXCHANGE WILL
ENGAGE IN RESTRAINTS OF TRADE WHICH MIGHT WELL BE UNREASONABLE ABSENT
SANCTION BY THE SECURITIES EXCHANGE ACT.  WITHOUT THE OVERSIGHT OF THE
COMMISSION TO ELABORATE FROM TIME TO TIME ON THE PROPRIETY OF VARIOUS
ACTS OF SELF-REGULATION, THE EXCHANGE IS LEFT WIHTOUT GUIDANCE AND
WITHOUT WARNING AS TO WHAT REGULATIVE ACTION WOULD BE VIEWED AS
EXCESSIVE BY AN ANTITRUST COURT POSSESSING POWER TO PROCEED BASED UPON
THE CONSIDERATIONS ENUMERATED IN THE PRECEDING PARAGRAPHS.  BUT, UNDER
THE AEGIS OF THE RULE OF REASON, TRADITIONAL ANTITRUST CONCEPTS ARE
FLEXIBLE ENOUGH TO PERMIT THE EXCHANGE SUFFICIENT BREATHING SPACE
WITHIN WHICH TO CARRY OUT THE MANDATE OF THE SECURITIES EXCHANGE ACT. 
SEE UNITED STATES V. TERMINAL R. ASSN. OF ST. LOUIS, 224 U.S. 383, 394
395; BOARD OF TRADE OF THE CITY OF CHICAGO V. UNITED STATES, 246 U.S.
231, 238.  ALTHOUGH, AS WE HAVE SEEN, THE STATUTORY SCHEME OF THAT ACT
IS NOT SUFFICIENTLY PERVASIVE TO CREATE A TOTAL EXEMPTION FROM THE
ANTITRUST LAWS, COMPARE HALE AND HALE, COMPETITION OR CONTROL VI:
APPLICATION OF ANTITRUST LAWS TO REGULATED INDUSTRIES, 111 U. OF PA. L.
REV. 46, 48, 57-59 (1962), IT IS ALSO TRUE THAT PARTICULAR INSTANCES OF
EXCHANGE SELF-REGULATION WHICH FALL WITHIN THE SCOPE AND PURPOSES OF
THE SECURITIES EXCHANGE ACT MAY BE REGARDED AS JUSTIFIED IN ANSWER TO
THE ASSERTION OF AN ANTITRUST CLAIM. 

                                  III. 

THE FINAL QUESTION HERE IS, THEREFORE, WHETHER THE ACT OF SELF
REGULATION IN THIS CASE WAS SO JUSTIFIED.  THE ANSWER TO THAT QUESTION
IS THAT IT WAS NOT, BECAUSE THE COLLECTIVE REFUSAL TO CONTINUE THE
PRIVATE WIRES OCCURRED UNDER TOTALLY UNJUSTIFIABLE CIRCUMSTANCES. 
NOTWITHSTANDING THEIR PROMPT AND REPEATED REQUESTS, PETITIONERS WERE
NOT INFORMED OF THE CHARGES UNDERLYING THE DECISION TO INVOKE THE
EXCHANGE RULES AND WERE NOT AFFORDED AN APPROPRIATE OPPORTUNITY TO
EXPLAIN OR REFUTE THE CHARGES AGAINST THEM. 

GIVEN THE PRINCIPLE THAT EXCHANGE SELF-REGULATION IS TO BE REGARDED
AS JUSTIFIED IN RESPONSE TO ANTITRUST CHARGES ONLY TO THE EXTENT
NECESSARY TO PROTECT THE ACHIEVEMENT OF THE AIMS OF THE SECURITIES
EXCHANGE ACT, IT IS CLEAR THAT NO JUSTIFICATION CAN BE OFFERED FOR SELF
REGULATION CONDUCTED WITHOUT PROVISION FOR SOME METHOD OF TELLING A
PROTESTING NONMEMBER WHY A RULE IS BEING INVOKED SO AS TO HARM HIM AND
ALLOWING HIM TO REPLY IN EXPLANATION OF HIS POSITION.  NO POLICY
REFLECTED IN THE SECURITIES EXCHANGE ACT IS, TO BEGIN WITH, SERVED BY
DENIAL OF NOTICE AND AN OPPORTUNITY FOR HEARING.  INDEED, THE AIMS OF
THE STATUTORY SCHEME OF SELF-POLICING - TO PROTECT INVESTORS AND
PROMOTE FAIR DEALING - ARE DEFEATED WHEN AN EXCHANGE EXERCISES ITS
TREMENDOUS ECONOMIC POWER WITHOUT EXPLANING ITS BASIS FOR ACTING, FOR
THE ABSENCE OF AN OBLIGATION TO GIVE SOME FORM OF NOTICE AND, IF TIMELY
REQUESTED, A HEARING CREATES A GREAT DANGER OF PERPETRATION OF INJURY
THAT WILL DAMAGE PUBLIC CONFIDENCE IN THE EXCHANGES.  THE REQUIREMENT
OF SUCH A HEARING WILL, BY CONTRAST, HELP IN EFFECTUATING ANTITURST
POLICIES BY DISCOURAGING ANTICOMPETITIVE APPLICATIONS OF EXCHANGE RULES
WHICH ARE NOT JUSTIFIABLE AS WITHIN THE SCOPE OF THE PURPOSES OF THE
SECURITIES EXCHANGE ACT.  IN ADDITION TO THE GENERAL IMPETUS TO REFRAIN
FROM MAKING UNSUPPORTABLE ACCUSATIONS THAT IS PRESENT WHEN IT IS
REQUIRED THAT THE BASIS OF CHARGES BE LAID BARE, THE EXPLANATION OR
REBUTTAL OFFERED BY THE NONMEMBER WILL IN MANY INSTANCES DISSIPATE THE
FORCE OF THE EX PARTE INFORMATION UPON WHICH AN EXCHANGE PROPOSES TO
ACT.  THE DUTY TO EXPLAIN AND AFFORD AN OPPORTUNITY TO ANSWER WILL,
THEREFORE, BE OF EXTREMELY BENEFICIAL EFFECT IN KEEPING EXCHANGE ACTION
FROM STRAYING INTO AREAS WHOLLY FOREIGN TO THE PURPOSES OF THE
SECURITIES EXCHANGE ACT.  AND, GIVEN THE POSSIBILITY OF ANTITRUST
LIABILITY FOR ANTICOMPETITIVE ACTS OF SELF-REGUALTION WHICH FALL TOO
FAR OUTSIDE THE SCOPE OF THE EXCHANGE ACT, THE UTILIZATION OF A NOTICE
AND HEARING PROCEDURE WITH ITS INHERENT CHECK UPON UNAUTHORIZED
EXCHANGE ACTION WILL DIMINISH RATHER THAN ENLARGE THE LIKELIHOOD THAT
SUCH LIABILITY WILL BE INCURRED AND HENCE WILL NOT INTERFERE WITH THE
EXCHANGE'S ABILITY TO ENGAGE EFFICACIOUSLY IN LEGITIMATE SUBSTANTIVE
SELF-REGULATION.  (FN14)  PROVISION OF SUCH A HEARING WILL, MOREOVER,
CONTRIBUTE TO THE EFFECTIVE FUNCTIONING OF THE ANTITRUST COURT, WHICH
WOULD BE SEVERELY IMPEDED IN PROVIDING THE REVIEW OF EXCHANGE ACTION
WHICH WE DEEM ESSENTIAL IF THE EXCHANGE COULD OBSCURE RATHER THAN
ILLUMINATE THE CIRCUMSTANCES UNDER WHICH IT HAS ACTED.  HENCE THE
AFFORDING OF PROCEDURAL SAFEGUARDS NOT ONLY WILL SUBSTANTIVELY
ENCOURAGE THE LESSENING OF ANTICOMPETITIVE BEHAVIOR OUTLAWED BY THE
SHERMAN ACT BUT WILL ALLOW THE ANTITRUST COURT TO PERFORM ITS FUNCTION
EFFECTIVELY.  (FN15) 

OUR DECISION TODAY RECOGNIZES THAT THE ACTION HERE TAKEN BY THE
EXCHANGE WOULD CLEARLY BE IN VIOLATION OF THE SHERMAN ACT UNLESS
JUSTIFIED BY REFERENCE TO THE PURPOSES OF THE SECURITIES EXCHANGE ACT,
AND HOLDS THAT THAT STATUTE AFFORDS NO JUSTIFICATION FOR
ANTICOMPETITIVE COLLECTIVE ACTION TAKEN WITHOUT ACCORDING FAIR
PROCEDURES.  (FN16)  CONGRESS IN EFFECTING A SCHEME OF SELF-REGULATION
DESIGNED TO INSURE FAIR DEALING CANNOT BE THOUGHT TO HAVE SANCTIONED
AND PROTECTED SELF-REGULATIVE ACTIVITY WHEN CARRIED OUT IN A
FUNDAMENTALLY UNFAIR MANNER.  (FN17)  THE POINT IS NOT THAT THE
ANTITRUST LAWS IMPOSE THE REQUIREMENT OF NOTICE AND A HEARING HERE, BUT
RATHER THAT, IN ACTING WITHOUT ACCORDING PETITIONERS THESE SAFEGUARDS
IN RESPONSE TO THEIR REQUEST, THE EXCHANGE HAS PLAINLY EXCEEDED THE
SCOPE OF ITS AUTHORITY UNDER THE SECURITIES EXCHANGE ACT TO ENGAGE IN
SELF-REGULATION AND THEREFORE HAS NOT EVEN REACHED THE THRESHOLD OF
JUSTIFICATION UNDER THAT STATUTE FOR WANT WOULD OTHERWISE BE AN
ANTITRUST VIOLATION.  SINCE IT IS PERFECTLY CLEAR THAT THE EXCHANGE CAN
OFFER NO JUSTIFICATION UNDER THE SECURITIES EXCHANGE ACT FOR ITS
COLLECTIVE ACTION IN DENYING PETITIONERS THE PRIVATE WIRE CONNECTIONS
WITHOUT NOTICE AND AN OPPORTUNITY FOR HEARING, AND THAT THE EXCHANGE
HAS THEREFORE VIOLATED SEC. 1 OF THE SHERMAN ACT, 15 U.S.C. SEC. 1, AND
IS THUS LIABLE TO PETITIONERS UNDER SECS. 4 AND 16 OF THE CLAYTON ACT,
15 U.S.C. SECS. 15, 26, THERE IS NO OCCASION FOR US TO PASS UPON THE
SUFFICIENCY OF THE REASONS WHICH THE EXCHANGE LATER ASSIGNED FOR ITS
ACTION.   (FN18)  THUS THERE IS ALSO NO NEED FOR US TO DEFINE FURTHER
WHETHER THE INTERPOSING OF A SUBSTANTIVE JUSTIFICATION IN AN ANTITRUST
SUIT BROUGHT TO CHALLENGE A PARTICULAR ENFORCEMENT OF THE RULES ON ITS
MERITS IS TO BE GOVERNED BY A STANDARD ARBITRARINESS, GOOD FAITH,
REASONABLENESS, OR SOME OTHER MEASURE.  IT WILL BE TIME ENOUGH TO DEAL
WITH THAT PROBLEM IF AND WHEN THE OCCASION ARISES.  EXPERIENCE TEACHES,
HOWEVER, THAT THE AFFORDING OF PROCEDURAL SAFEGUARDS, WHICH BY THEIR
NATURE SERVE TO ILLUMINATE THE UNDERLYING FACTS, IN ITSELF OFTEN
OPERATES TO PREVENT ERRONEOUS DECISIONS ON THE MERITS FROM OCCURRING. 
THERE IS NO REASON TO BELIEVE THAT THE EXPERIENCE OF THE EXCHANGE WILL
BE DIFFERENT FROM THAT OF OTHER INSTITUTIONS, BOTH PUBLIC AND PRIVATE. 
THE BENEFITS WHICH A GUARANTEE OF PROCEDURAL SAFEGUARDS BRINGS ABOUT
ARE, MOREOVER, OF PARTICULAR IMPORTANCE HERE.  IT REQUIRES BUT LITTLE
APPRECIATION OF THE EXTENT OF TH EXCHANGE'S ECONOMIC POWER AND OF WHAT
HAPPENED IN THIS COUNTRY DURING THE 1920'S AND 1930'S TO REALIZE HOW
ESSENTIAL IT IS THAT THE HIGHEST ETHICAL STANDARDS PREVAIL AS TO EVERY
ASPECT OF THE EXCHANGE'S ACTIVITIES.  WHAT IS BASICALLY AT ISSUE HERE
IS WHETHER THE TYPE OF PARTNERSHIP BETWEEN GOVERNMENT AND PRIVATE
ENTERPRISE THAT MARKS THE DESIGN OF THE SECURITIES EXCHANGE ACT OF 1934
CAN OPERATE EFFECTIVELY TO INSURE THE MAINTENANCE OF SUCH STANDARDS IN
THE LONG RUN.  WE HAVE TODAY PROVIDED NOT A BRAKE UPON THE PRIVATE
PARTNER EXECUTING THE PUBLIC POLICY OF SELF-REGULATION BUT A BALANCE
WHEEL TO INSURE THAT IT CAN PERFORM THIS NECESSARY ACTIVITY IN A
SETTING COMPATIBLE WITH THE OBJECTIVES OF BOTH THE ANTITRUST LAWS AND
THE SECURITIES EXCHANGE ACT. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  EXCHANGE APPROVAL WAS NEVER SOUGHT FOR MUNICIPAL'S PRIVATE WIRES
TO THE MUNICIPAL BOND DEPARTMENTS OF MEMBER FIRMS. 

FN2  ULTIMATELY, DURING THE PRETRIAL STAGES OF THIS LITIGATION, THE
EXCHANGE DISCLOSED MOST OF THE REASONS FOR ITS ACTION, AND THESE ARE
SUMMARIZED AND DISCUSSED IN THE OPINIONS OF BOTH THE DISTRICT COURT,
196 F. SUPP. 209, 216-217, 225-227, AND THE COURT OF APPEALS, 302 F.2D
174, 716.  IN VIEW, HOWEVER, OF THE DISPOSITION WE MAKE OF THE CASE
HEREAFTER, THERE IS NO NEED TO SET FORTH THESE REASONS IN DETAIL IN
THIS OPINION. 

FN3  SILVER DIED WHILE THE CASE WAS PENDING IN THE COURT OF APPEALS,
AND HIS WIDOW, EVELYN B. SILVER, AS EXECUTRIX OF HIS ESTATE, WAS
SUBSTITUTED FOR HIM. 

FN4  THESE FORMS OF RELIEF ARE PROVIDED BY SECS. 4 AND 16 OF THE
CLAYTON ACT, 15 U.S.C. SECS. 15, 26. 

FN5  THE FACT THAT THE CONSENSUS UNDERLYING THE COLLECTIVE ACTION WAS
ARRIVED AT WHEN THE MEMBERS BOUND THEMSELVES TO COMPLY WITH EXCHANGE
DIRECTIVES UPON BEING ADMITTED TO MEMBERSHIP RATHER THAN WHEN THE
SPECIFIC ISSUE OF SILVER'S QUALIFICATIONS AROSE DOES NOT DIMINISH THE
COLLECTIVE NATURE OF THE ACTION.  A BLANKET SUBSCRIPTION TO POSSIBLE
FUTURE RESTRAINTS DOES NOT EXCUSE THE RESTRAINTS WHEN THEY OCCUR. 
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1.  NOR DOES ANY EXCUSE
DERIVE FROM THE FACT THAT THE COLLECTIVE REFUSAL TO DEAL WAS ONLY WITH
REFERENCE TO THE PRIVATE WIRES, THE MEMBER FIRMS REMAINING WILLING TO
DEAL WITH PETITIONERS FOR THE PURCHASE AND SALE OF SECURITIES.  SEE
BIGELOW V. RKO RADIO PICTURES, INC., 327 U.S. 251; UNITED STATES V.
PARAMOUNT PICUTRES, INC., 334 U.S. 131, 167.  A VALUABLE SERVICE
GERMANE TO PETITIONERS' BUSINESS AND IMPORTANT TO THEIR EFFECTIVE
COMPETITION WITH OTHERS WAS WITHHELD FROM THEM BY COLLECTIVE ACTION. 
THAT IS ENOUGH TO CREATE A VIOLATION OF THE SHERMAN ACT.  UNITED STATES
V. TERMINAL R. ASSN. OF ST. LOUIS, 224 U.S. 383; UNITED STATES V. FIRST
NATIONAL PICTURES, INC., 282 U.S. 44; ASSOCIATED PRESS V. UNITED
STATES, SUPRA; CF. ANDERSON V. UNITED STATES, 171 U.S. 604, 618-619. 

FN6  THE REPORT CITED IN THE TEXT IS THE RECENTLY ISSUED FIRST
SEGMENT OF A STUDY WHICH THE COMMISSION WAS DIRECTED TO MAKE BY A 1961
AMENDMENT TO THE SECURITIES EXCHANGE ACT, SEC. 19(D), 15 U.S.C. (SUPP.
III) SEC. 78SD).  ANOTHER SET OF FIGURES REPORTED BY THE SPECIAL STUDY
ILLUSTRATES THE GREAT IMPORTANCE OF CORPORATE SECURITIES AS A FORM OF
PRIVATE PROPERTY.  AS OF THE END OF 1961, INDIVIDUALS HAD NET FINANCIAL
SAVINGS OF ABOUT $900,000,000,000, OF WHICH DIRECT HOLDINGS OF
CORPORATE SECURITIES AMOUNTED TO MORE THAN HALF.  IN ADDITION, LIFE
INSURANCE COMPANIES AND PRIVATE PENSION FUNDS HELD ABOUT
$93,000,000,000 IN CORPORATE SECURITIES, AND PERSONAL TRUST FUNDS HELD
ANOTHER $57,000,000,000.  SPECIAL STUDY, C. IB, PP. 2-3. 

FN7  "THE COMMISSION IS  ...  AUTHORIZED  ...  TO ALTER OR SUPPLEMENT
THE RULES OF  ...  (AN) EXCHANGE  ...  IN RESPECT TO SUCH MATTERS AS
(1) SAFEGUARDS IN RESPECT OF THE FINANCIAL RESPONSIBILITY OF MEMBERS
AND ADEQUATE PROVISION AGAINST THE EVASION OF FINANCIAL RESPONSIBILITY
THROUGH THE USE OF CORPORATE FORMS OR SPECIAL PARTNERSHIPS; (2) THE
LIMITATION OR PROHIBITION OF THE REGISTRATION OR TRADING IN ANY
SECURITY WITHIN A SPECIFIED PERIOD AFTER THE ISSUANCE OR PRIMARY
DISTRIBUTION THEREOF; (3) THE LISTING OR STRIKING FROM LISTING OF ANY
SECURITY; (4) HOURS OF TRADING; (5) THE MANNER, METHOD, AND PLACE OF
SOLICITING BUSINESS; (6) FICTITIOUS OR NUMBER ACCOUNTS; (7) THE TIME
AND METHOD OF MAKING SETTLEMENTS, PAYMENTS, AND DELIVERIES AND OF
CLOSING ACCOUNTS; (8) THE REPORTING OF TRANSACTIONS ON THE EXCHANGE AND
UPON TICKERS MAINTAINED BY OR WITH THE CONSENT OF THE EXCHANGE,
INCLUDING THE METHOD OF REPORTING SHORT SALES, STOPPED SALES, SALES OF
SECURITIES OF ISSUERS IN DEFAULT, BANKRUPTCY OR RECEIVERSHIP, AND SALES
INVOLVING OTHER SPECIAL CIRCUMSTANCES; (9) THE FIXING OF REASONABLE
RATES OF COMMISSION, INTEREST, LISTING, AND OTHER CHARGES; (10) MINIMUM
UNITS OF TRADING; (11) ODD-LOT PURCHASES AND SALES; (12) MINIMUM
DEPOSITS ON MARGIN ACCOUNTS; AND (13) SIMILAR MATTERS." 

FN8  MEMBER FIRMS OF THE NEW YORK STOCK EXCHANGE ACCOUNTED FOR OVER
HALF OF THE TOTAL DOLLAR VOLUME OF OVER-THE-COUNTER BUSINESS IN FISCAL
1961, SPECIAL STUDY, OP. CIT., SUPRA, C. IB, PP. 17-18, AND TRADING IN
OVER-THE-COUNTER STOCKS CONSTITUTED 21.6% OF THE ESTIMATED GROSS INCOME
OF MEMBER FIRMS OF THE EXCHANGE FOR THE SAME PERIOD, ID., C. I, TABLE I
12. 

FN9  OF MOST SIGNIFICANCE IN THIS CONNECTION IS ART XIV, SEC. 17, OF
THE EXCHANGE'S CONSTITUTION, WHICH PERMITS IT TO ORDER A MEMBER TO
SEVER ANY BUSINESS CONNECTION WHICH MIGHT CAUSE THE INTEREST OR GOOD
REPUTE OF THE EXCHANGE TO SUFFER, AND RULES 331-335, WHICH PROVIDE
VARIOUS SPECIFIC REGULATIONS GOVERNING MEMBERS' RELATIONS WITH
NONMEMBER CORPORATIONS AND ASSOCIATIONS (INCLUDING BROKER-DEALERS) IN
WHICH THEY HAVE AN OWNERSHIP INTEREST OR WITH WHICH THEY ARE OTHERWISE
CONNECTED.   EQUALLY IMPORTANT ARE RULE 403, PROHIBITING TRANSACTION OF
BUSINESS WITH A BUCKET SHOP, AND RULE 435, PROHIBITING PARTICIPATION IN
ANY MANIPULATIVE OPERATION.  THE SUBJECT OF COMMISSIONS TO BE COLLECTED
FROM NONMEMBERS IS REGULATED BY ARTICLE XV OF THE CONSTITUTION AND BY
NUMEROUS RULES.  ARBITRATION INVOLVING NONMEMBERS IS DEALT WITH BY ART.
VIII, SECS. 1 AND 6, OF THE CONSTITUTION.  VARIOUS OTHER RULES PROHIBIT
THE JOINT USE OF AN OFFICE WITH A NONMEMBER UNLESS THE EXCHANGE
APPROVES (RULE 344), THE GIVING OF COMPENSATION OR GRATUITIES TO THE
EMPLOYEES OF NONMEMBERS WITHOUT THEIR EMPLOYER'S CONSENT (RULE 350),
AND THE PAYING OF CERTAIN EXPENSES OF NONMEMBERS (RULE 369).  RULE 418
PERMITS THE EXCHANGE TO ENGAGE IN A "SURPRISE" AUDIT OF ANY MEMBER WHO
DOES BUSINESS WITH NONMEMBERS.  AND ART. III, SEC. 6, OF THE
CONSTITUTION AND RULES 355 THROUGH 358 DEAL WITH PRIVATE WIRE
CONNECTIONS AND RELATED INSTALLATIONS, SEE NOTE 11, INFRA. 

FN10  IN DEPOSITION, THE ASSISTANT DIRECTOR OF THE EXCHANGE'S
DEPARTMENT OF MEMBER FIRMS DESCRIBED A BOILER SHOP AS "USUALLY A
PHYSICALLY SMALL OPERATION WHICH EMPLOYS HIGH PRESSURE TELEPHONE
SALESMANSHIP TO OVERSELL TO THE PUBLIC BY QUANTITY, AND IN MANY CASES
BY QUALITY."  HE SAID THAT THIS KIND OF FIRM, AS WELL AS BUCKET SHOPS,
INADEQUATELY CAPITALIZED FIRMS, AND FIRMS WHICH MIGHT MISREPRESENT OR
WITHHOLD MATERIAL FACTS FROM CUSTOMERS, WAS AMONG THOSE WHICH THE
EXCHANGE SEEKS TO PREVENT FROM HAVING THE USE OF ITS FACILITIES. 

FN11  ARTICLE III, SEC. 6, OF THE CONSTITUTION, WHICH IS ENTITLED
"SUPERVISION OVER MEMBERS, ALLIED MEMBERS, MEMBER FIRMS AND MEMBER
CORPORATIONS," PROVIDES, AMONG OTHER THINGS, THAT THE EXCHANGE "SHALL
HAVE POWER TO APPROVE OR DISAPPROVE ANY APPLICATION FOR TICKER SERVICE
TO ANY NON-MEMBER, OR FOR WIRE, WIRELESS, OR OTHER CONNECTION BETWEEN
ANY OFFICE OF ANY MEMBER OF THE EXCHANGE, MEMBER FIRM OR MEMBER
CORPORATION AND ANY NON-MEMBER, AND MAY REQUIRE THE DISCONTINUANCE OF
ANY SUCH SERVICE OR CONNECTION."  RULE 355 PROVIDES, "(A) NO MEMBER OR
MEMBER ORGANIZATION SHALL ESTABLISH OR MAINTAIN ANY WIRE CONNECTION,
PRIVATE RADIO, TELEVISION OR WIRELESS SYSTEM BETWEEN HIS OR ITS OFFICES
AND THE OFFICE OF ANY NON-MEMBER, OR PERMIT ANY PRIVATE RADIO OR
TELEVISION SYSTEM BETWEEN HIS OR ITS OFFICES, WITHOUT PRIOR CONSENT OF
THE EXCHANGE.  (B) EVERY NONMEMBER WILL BE REQUIRED TO EXECUTE A
PRIVATE WIRE CONTRACT IN FORM PRESCRIBED BY THE EXCHANGE TO BE FILED
WITH IT, UNLESS A CONTRACT IS ALREADY ON FILE WITH THE EXCHANGE.  (C)
NOTIFICATION REGARDING A PRIVATE MEANS OF COMMUNICATION WITH A NON
MEMBER AND THE SIGNED CONTRACT WHEN NECESSARY SHALL BE SUBMITTED TO THE
DEPARTMENT OF MEMBER FIRMS.  THIS NOTIFICATION, BY A MEMBER OR ALLIED
MEMBER, MAY BE IN FORM SUPPLIED BY THE EXCHANGE OR IN LETTER FORM, AND
SHALL INCLUDE THE ESSENTIAL FACTS CONCERNING THE NON-MEMBER AND THE
MEANS OF COMMUNICATION.  (D) EACH MEMBER OR MEMBER ORGANIZATION SHALL
SUBMIT ANNUALLY TO THE DEPARTMENT OF MEMBER FIRMS A LIST OF ALL NON
MEMBERS WITH WHOM PRIVATE MEANS OF COMMUNICATION ARE MAINTAINED.  (E)
THE EXCHANGE MAY REQUIRE AT ANY TIME THAT ANY MEANS OF COMMUNICATION BE
DISCONTINUED."  RULE 356, INSOFAR AS RELEVANT, PROVIDES, "THE EXCHANGE
MAY REQUIRE AT ANY TIME THE DISCONTINUANCE OF ANY MEANS OF
COMMUNICATION WHATSOEVER WHICH HAS A TERMINUS IN THE OFFICE OF A MEMBER
OR MEMBER ORGANIZATION." 

FN12  WERE THERE COMMISSION JURISDICTION AND ENSUING JUDICIAL REVIEW
FOR SCRUTINY OF A PARTICULAR EXCHANGE RULING, AS THERE IS UNDER THE
1938 MALONEY ACT AMENDMENTS TO THE EXCHANGE ACT TO EXAMINE DISCIPLINARY
ACTION BY A REGISTERED SECURITIES ASSOCIATION (I.E., BY THE NASD),
SECS. 15AG), 15AH), 25(A), 15 U.S.C. SECS. 78O-3(G), 78O-3(H), 78YA);
SEE R.H. JOHNSON & CO. V. SECURITIES & EXCHANGE COMM'N, 198 F.2D 690
(C.A.2D CIR. 1952), CERT. DENIED, 344 U.S. 855, A DIFFERNT CASE WOULD
ARISE CONCERNING EXEMPTION FROM THE OPERATION OF LAWS DESIGNED TO
PREVENT ANTICOMPETITIVE ACTIVITY, AN ISSUE WE DO NOT DECIDE TODAY. 

FN13  ALTHOUGH THE RECENTLY ISSUED FIRST SEGMENT OF THE REPORT OF THE
SPECIAL STUDY OF SECURITIES MARKETS IS MORE CRITICAL OF SITUATIONS IN
THE OVER-THE-COUNTER MARKET AND WITH REFERENCE TO EXCHANGES OTHER THAN
THE RESPONDENT, IT DOES POINT OUT THAT IMPROPER SELLING PRACTICES HAVE
OCCURRED AMONG MEMBER FIRMS OF RESPONDENT, C. IIIB, PP. 178-179, 183
184, AND SUGGESTS THE NEED FOR NEW COMMISSION RULES TO GOVERN SELLING
PRACTICES OF SECURITIES DEALERS, ID., P. 186. 

FN14  THE EXCHANGE ARGUES THAT TOTAL DISCLOSURE OF THE REASONS FOR
ITS ACTION AND OF THE SOURCES OF ITS INFORMATION WILL SUBJECT IT AND
ITS INFORMANTS TO A RISK OF BEING SUED FOR DEFAMATION IN MANY
INSTANCES.  THIS RISK, HOWEVER, IS PROPERLY MET BY THE FLEXIBILITY
INHERENT IN THE LAW OF DEFAMATION IN THE CONCEPT OF THE CONDITIONAL OR
QUALIFIED PRIVILEGE.  1 HARPER AND JAMES, THE LAW OF TORTS (1956),
SECS. 5.21, 5.25, 5.26, ESPECIALLY SEC. 5.26, AT 442, N. 3.  IN
ADDITION, EVEN IF A PARTICULAR COMMUNICATION OF INFORMATION TO THE
EXCHANGE SHOULD FALL OUTSIDE THE SCOPE OF SUCH A PRIVILEGE, THE
EXCHANGE CAN PROTECT ITSELF AND ITS INFORMANT FROM EXPANSION OF DAMAGE
LIABILITY BY CONFINING THE HEARING, UNLESS OTHERWISE REQUESTED BY THE
AGGRIEVED NONMEMBER, TO THE PARTIES TO THE DISPUTE AND THE NECESSARY
WITNESSES, SO AS TO LIMIT THE AREA OF DISSEMINATION OF THE DEFAMATORY
MATTER.  SEE 1 HARPER AND JAMES, OP. CIT., SUPRA, SEC. 5.30, AT 469. 
SIMILARLY, ANY CONCERN THAT OUR HOLDING EXPOSES THE EXCHANGE TO
EXCESSIVE LIABILITY FOR PAST ENFORCEMENT OF ITS RULES ACCOMPLISHED
WITHOUT A HEARING IGNORES THE PRESUMABLE APPLICABILITY OF FAMILIAR
PRINCIPLES OF WAIVER, LACHES, AND ESTOPPEL TO BAR RELIEF TO A NONMEMBER
WHO FAILED TO MAKE TIMELY AND APPROPRIATE PROTEST TO THE EXCHANGE. 

FN15  THE AFFORDING OF PROCEDURAL SAFEGUARDS WILL NOT BURDEN THE NEW
YORK STOCK EXCHANGE; NOTICE AND HEARING ARE ALREADY GUARANTEED BY ITS
CONSTITUTION, ART. XIV, SEC. 14, TO ANY MEMBER ACCUSED OF VIOLATING ITS
RULES.  THE EXISTENCE OF THESE GUARANTEES GOES FAR TOWARD DISPELLING
FEARS THAT PROVISION OF A HEARING TO NONMEMBERS WOULD INTERFERE
SIGNIFICANTLY WITH THE NEED FOR TIMELY EXCHANGE ACTION, FOR IT CAN
SURELY BE ASSUMED THAT PROMPT ACTION IS AS MUCH REQUIRED TO DEAL WITH
MEMBER WRONGDOING AS WITH THAT OF A NONMEMBER.  WE HAVE NO DOUBT,
MOREOVER, THAT PROVISION OF A HEARING TO BE PROTESTING NONMEMBER CAN,
WHEN CIRCUMSTANCES REQUIRE, BE ACCOMPLISHED EXPEDITIOUSLY ENOUGH TO
PREVENT INJURY TO INVESTORS.  INDEED, IF THE BASIS FOR INVOCATION OF AN
EXCHANGE RULE IS ALSO A VIOLATION OF THE SECURITIES ACT OF 1933, THE
SECURITIES EXCHANGE ACT OF 1934, OR THE COMMISSION'S RULES AND
REGULATIONS UNDER EITHER STATUTE, THE COMMISSION CAN COME TO THE AID OF
THE EXCHANGE BY OBTAINING A PRELIMINARY OR PERMANENT INJUNCTION OR
RESTRAINING ORDER AGAINST SUCH PRACTICE IN THE APPROPRIATE UNITED
STATES DISTRICT COURT.  SECURITIES ACT OF 1933, SEC. 20(B), 15 U.S.C.
SEC. 77TB); SECURITIES EXCHANGE ACT OF 1934, SEC. 21(E), 15 U.S.C. SEC.
78UE).  IT IS SIGNIFICANT, HOWEVER, THAT THE COMMISSION'S POWER TO
OBTAIN RESTRAINT OF PARTICULAR VIOLATIONS IS CONFINED TO TRADITIONAL
JUDICIAL CHANNELS WITH THE SAFEGUARDS IMPLIED THEREBY, AND THAT WHEN
THE COMMISSION, PURSUANT TO THE POWERS CONFERRED ON IT BY CONGRESS IN
THE MALONEY ACT OF 1938, WISHES TO RESORT TO THE MORE DRASTIC SANCTION
OF SUSPENDING OR REVOKING THE MEMBERSHIP IN THE NASD OF A WRONGDOING
OVER-THE-COUNTER DEALER, IT MAY ONLY DO SO "AFTER APPROPRIATE NOTICE
AND OPPORTUNITY FOR HEARING ...  ."  SEC. 15AL), 15 U.S.C. SEC. 78O
3(L). 

FN16  IT MAY BE ASSUMED THAT THE SECURITIES EXCHANGE COMMISSION WOULD
HAVE HAD THE POWER, UNDER SEC. 19B) OF THE EXCHANGE ACT, 15 U.S.C. SEC.
78SB), PP. 352-353, 357 & NOTE 7, SUPRA, TO DIRECT THE EXCHANGE TO
ADOPT A GENERAL RULE PROVIDING A HEARING AND ATTENDANT PROCEDURES TO
NONMEMBERS.  HOWEVER, ANY RULE THAT MIGHT BE ADOPTED BY THE COMMISSION
WOULD, TO BE CONSONANT WITH THE ANTITRUST LAWS, HAVE TO PROVIDE AS A
MINIMUM THE PROCEDURAL SAFEGUARDS WHICH THOSE LAWS MAKE IMPERATIVE IN
CASES LIKE THIS.  ABSENT COMMISSION ADOPTION OF A RULE REQUIRING FAIR
PROCEDURE, AND IN LIGHT OF BOTH THE UTILITY OF SUCH A RULE AS AN
ANTITRUST MATTER AND ITS COMPATIBILITY WITH SECURITIES-REGULATION
PRINCIPLES, SEE P. 361, SUPRA, NO INCOMPATIBILITY WITH THE COMMISSION'S
POWER INHERES IN ANNOUNCEMENT BY AN ANTITRUST COURT OF THE RULE. 
COMPARE COLORADO ANTI-DISCRIMINATION COMM'N V. CONTINENTAL AIR LINES,
INC., 372 U.S. 714, 723-724. 

FN17  THE BASIC NATURE OF THE RIGHTS WHICH WE HOLD TO BE REQUIRED
UNDER THE ANTITRUST LAWS IN THE CIRCUMSTANCES OF TODAY'S DECISION IS
INDICATED BY THE FACT THAT PUBLIC AGENCIES, LABOR UNIONS, CLUBS, AND
OTHER ASSOCIATIONS HAVE, UNDER VARIOUS LEGAL PRINCIPLES, ALL BEEN
REQUIRED TO AFFORD NOTICE, A HEARING, AND AN OPPORTUNITY TO ANSWER
CHARGES TO ONE WHO IS ABOUT TO BE DENIED A VALUABLE RIGHT.  GOLDSMITH
V. UNITED STATES BOARD OF TAX APPEALS, 270 U.S. 117; RUSSELL V. DUKE OF
NORFOLK, (1949) 1 ALL E.R.  109 (C.A.); FELLMAN, CONSTITUTIONAL RIGHTS
OF ASSOCIATION, IN THE SUPREME COURT REVIEW, 1961 (KURLAND ED), 74,
104, 112-113; DEVELOPMENTS IN THE LAW - JUDICIAL CONTROL OF ACTIONS OF
PRIVATE ASSOCIATIONS, 76 HARV. L. REV. 983, 1026-1037 (1963); SEE
AUTHORITIES CITED NOTE 18, INFRA; CF. VITARELLI V. SEATON, 359 U.S.
535; CAFETERIA & RESTAURANT WORKERS UNION, LOCAL 473, AFL-CIO, V.
MCELROY, 367 U.S. 886, 894-895; WILLNER V. COMMITTEE ON CHARACTER AND
FITNESS, ANTE, P. 96. 

FN18  THE PRINCIPLE THAT A PRIVATE ASSOCIATION'S FAILURE TO AFFORD
PROCEDURAL SAFEGAURDS MAY RESULT IN THE IMPOSITION OF DAMAGE LIABILITY
WITHOUT INQUIRY INTO WHETHER THE ASSOCIATION'S ACTION LACKED
SUBSTANTIVE BASIS IS REFLECTED IN MANY STATE-COURT DECISIONS, RESTING
ON VARIOUS THEORIES OF LIABILITY.  CASON V. GLASS BOTTLE BLOWERS ASSN.,
37 CAL. 2D 134, 231 P.2D 6 (1951); LAHIFF V. SAINT JOSEPH'S TOTAL
ABSTINENCE & BENEVOLENT SOC., 76 CONN. 648, 57 A. 692 (1904); MALMSTED
V. MINNEAPOLIS AERIE, 111 MINN. 119, 126 N.W.  486 (1910); JOHNSON V.
INTERNATIONAL OF THE UNITED BROTHERHOOD OF CARPENTERS, 52 NEV. 400, 288
P. 170 (1930), 54 NEV. 332, 16 P.2D 658 (1932); BROOKS V. ENGAR, 259
APP. DIV. 333, 19 N.Y.S.2D 114 (1ST DEPT.), APPEAL DISMISSED, 284 N.Y.
767, 31 N.E.2D 514 (1940); BLEK V. WILSON, 145 MISC. 373, 259 N.Y.
SUPP. 443 (SUP. CT. 1932), MODIFIED AND AFF'D, 237 APP. DIV. 712, 262
N.Y. SUPP. 416 (1ST DEPT.), REV'D ON OTHER GROUNDS, 262 N.Y. 253, 186
N.E. 692 (1933); GLAUBER V. PATOF, 183 MISC. 400, 47 N.Y.S.2D 762 (SUP.
CT. 1944), AFF'D MEM., 269 APP. DIV. 687, 54 N.Y.S.2D 384 (1ST DEPT.),
MODIFIED PER CURIAM ON OTHER GROUNDS, 294 N.Y. 583, 63 N.E.2D 181
(1945); O'BRIEN V. PAPAS, 49 N.Y.S.2D 521 (SUP. CT. 1944); TAXICAB
DRIVERS' LOCAL UNION NO. 889 V. PITTMAN, 322 P.2D 159 (OKLA. 1957);
INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS' UNION V. SMITH, 145 TEX.
399, 198 S.W.2D 729 (1946); LEO V. LOCAL UNION NO. 612 OF INTERNATIONAL
UNION OF OPERATING ENGINEERS, 26 WASH. 2D 498, 174 P.2D 523
(1946)(ALTERNATIVE HOLDING).  SEE ALSO DEVELOPMENTS IN THE LAW, SUPRA,
76 HARV. L. REV., AT 1087-1095; NOTE, PROCEDURAL "DUE PROCESS" IN UNION
DISCIPLINARY PROCEEDINGS, 57 YALE L.J. 1302 (1948).  THE PRECEDENTS
CITED UNDOUBTEDLY REST ON A RECOGNITION THAT THE ACCORDING OF FAIR
PROCEDURES IS OF FUNDAMENTAL SIGNIFICANCE, THAT SERIOUS AND
IRREVERSIBLE ECONOMIC INJURY MAY RESULT FROM THEIR DENIAL IN A CONTEXT
LIKE THAT OF THE PRESENT CASE, AND THAT A SUBSTANTIVE INQUIRY AFTER THE
FACT CANNOT POSSIBLY SUCCEED IN ACCURATELY ASCERTAINING RETROSPECTIVELY
WHAT THE OUTCOME WOULD HAVE BEEN HAD THE PROCEDURAL SAFEGUARDS BEEN
AFFORDED IN THE FIRST INSTANCE.  THE CONDITIONING OF RELIEF FOR THE
PROCEDURAL BREACH ON A FINDING THAT A CONCOMITANT SUBSTANTIVE BREACH
OCCURRED MIGHT WELL, THEREFORE, RESULT IN AN ULTIMATE WRONGFUL DENIAL
OF RECOVERY TO A PARTY IN THE POSITION OF PETITIONERS HERE. 

MR. JUSTICE CLARK CONCURS IN THE RESULT ON THE GROUNDS STATED IN THE
OPINION OF THE DISTRICT COURT, 196 F. SUPP. 209, AND THE DISSENTING
OPINION IN THE COURT OF APPEALS, 302 F.2D 714. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE COURT SAYS THAT THE FUNDAMENTAL QUESTION IN THIS CASE IS "WHETHER
AND TO WHAT EXTENT THE FEDERAL ANTITRUST LAWS APPLY TO SECURITIES
EXCHANGES REGULATED BY THE SECURITIES EXCHANGE ACT OF 1934."  I AGREE
THAT THIS IS THE ISSUE PRESENTED, BUT WITH ALL RESPECT IT SEEMS TO ME
THAT THE ANSWER WHICH THE COURT HAS GIVEN IS BOTH UNSATISFACTORY AND
INCOMPLETE. 

THE COURT BEGINS BY POINTING OUT, CORRECTLY, THAT REMOVAL OF THE
PETITIONERS' WIRE CONNECTIONS BY COLLECTIVE ACTION OF THE EXCHANGE AND
ITS MEMBERS WOULD CONSTITUTE A VIOLATION OF THE SHERMAN ACT, HAD IT
OCCURRED IN AN ORDINARY COMMERCIAL CONTEXT.  (FN1)  THE COURT THEN
REVIEWS AT LENGTH THE PURPOSE, SCOPE, AND STRUCTURE OF THE SECURITIES
EXCHANGE ACT AND HOLDS, AGAIN CORRECTLY I THINK, THAT THE SUBSTANTIVE
ACT OF REGULATION ENGAGED IN HERE WAS INSIDE "THE BOUNDARIES OF THE
PUBLIC POLICY" ESTABLISHED BY THE EXCHANGE ACT.  THE COURT NEXT REMINDS
US, CORRECTLY, THAT THE EXCHANGE ACT CONTAINS NO EXPRESS EXEMPTION FROM
THE ANTITRUST LAWS, AND THAT A STOCK EXCHANGE OR ITS MEMBERS MIGHT IN
SOME CASES "APPLY ITS RULES SO AS TO DO INJURY TO COMPETITION WHICH
CANNOT BE JUSTIFIED AS FURTHERING LEGITIMATE SELF-REGULATIVE ENDS." 

SO FAR, SO GOOD.  THE COURT HAS FAIRLY AND THOROUGHLY STATED THE
COMPETING CONSIDERATIONS BEARING UPON THE BASIC PROBLEM INVOLVED IN
THIS CASE.  BUT THEN - IN THE LAST FIVE PAGES OF THE COURT'S OPINION -
THE NATURE OF THE PROBLEM SEEMS SUDDENLY TO CHANGE.  THE CASE BECOMES
ONE INVOLVING DUE PROCESS CONCEPTS OF NOTICE, CONFRONTATION, AND
HEARING. 

IT MAY BE THAT A HEARING SHOULD BE ACCORDED A MEMBER OR NONMEMBER OF
AN EXCHANGE, INJURED BY THE INVOCATION OF AN EXCHANGE RULE, IN ALL
CASES.  ON THE OTHER HAND, IN VIEW OF THE SOPHISTICATED, SUBTLE, AND
HIGHLY TECHNICAL NATURE OF THE PROBLEM OF WHAT ARE "JUST AND EQUITABLE
PRINCIPLES OF TRADE," OR BECAUSE OF THE FRAGILE AND MERCURIAL
INGREDIENTS OF PUBLIC CONFIDENCE IN THE SECURITIES MARKETS, THERE MIGHT
BE CASES IN WHICH THE PUBLIC INTEREST WOULD DEMAND THAT AT LEAST
PRELIMINARY DISCIPLINARY ACTION BE TAKEN WITH SWIFT EFFECTIVENESS. 
THESE BROAD POLICY QUESTIONS WERE, QUITE PROPERLY, NEITHER BRIEFED NOR
ARGUED IN THE PRESENT CASE.  THEY ARE QUESTIONS WELL WITHIN THE POWER
OF CONGRESS AND OF THE SECURITIES AND EXCHANGE COMMISSION TO CANVASS
AND TO RESOLVE.  (FN2)  BUT THEY ARE QUESTIONS, I RESPECTFULLY SUBMIT,
WHICH HAVE ONLY THE MOST TANGENTIAL BEARING UPON THE ISSUES NOW BEFORE
US.    THE COURT SAYS THAT BECAUSE OF THE FAILURE TO ACCORD "PROCEDURAL
SAFEGUARDS" TO THE PETITIONERS, THE RESPONDENT EXCHANGE IS IPSO FACTO
LIABLE TO THEM UNDER THE ANTITRUST LAWS.  THIS MEANS THAT A BUCKET-SHOP
OPERATOR WHO HAD BEEN ENGAGED IN SWINDLING THE PUBLIC COULD COLLECT
TREBLE DAMAGES FROM A STOCK EXCHANGE WHICH HAD DENIED HIM ITS WIRE
CONNECTIONS WITHOUT FIRST ACCORDING HIM NOTICE AND A HEARING.  FOR, AS
I UNDERSTAND THE COURT'S OPINION, THE EXCHANGE WOULD NOT BE ALLOWED TO
PROVE IN THIS HYPOTHETICAL ANTITRUST CASE THAT THE PLAINTIFF WAS SUCH A
SWINDLER, EVEN THOUGH PROOF OF THAT FACT TO AN ABSOLUTE CERTAINTY WERE
AVAILABLE.  THIS RESULT SEEMS TO ME COMPLETELY TO FRUSTRATE THE PURPOSE
AND POLICY OF THE SECURITIES EXCHANGE ACT, AND TO BEAR NO RELEVANCE TO
THE PURPOSE AND POLICY OF THE ANTITRUST LAWS.  EVEN ASSUMING THAT
CONGRESS AGREED WITH THE COURT'S NOTIONS OF THE APPROPRIATE PROCEDURES
UNDER THE EXCHANGE ACT, I CANNOT BELIEVE THAT CONGRESS WOULD HAVE
PROVIDED AN ANTITRUST FORUM AND PRIVATE TREBLE DAMAGE LIABILITY TO
ENFORCE THEM. 

WHETHER THERE HAS BEEN A VIOLATION OF THE ANTITRUST LAWS DEPENDS NOT
AT ALL UPON WHETHER OR NOT THE DEFENDANTS' CONDUCT WAS ARBITRARY.  AS
THIS COURT HAS SAID, "THE REASONABLENESS OF THE METHODS PURSUED BY THE
COMBINATION TO ACCOMPLISH ITS UNLAWFUL OBJECT IS NO MORE MATERIAL THAN
WOULD BE THE REASONABLENESS OF THE PRICES FIXED BY UNLAWFUL
COMBINATION."  FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N, 312
U.S. 457, 468.  (FN3)  YET THE COURT TODAY SAYS THAT BECAUSE THE
EXCHANGE DID NOT ACCORD THE PETITIONERS WHAT THE COURT CONSIDERS "FAIR
PROCEDURES" UNDER THE EXCHANGE ACT, THE EXCHANGE HAS THEREFORE VIOLATED
SEC. 1 OF THE SHERMAN ACT. 

I THINK THE COURT ERRS IN USING THE ANTITRUST LAWS TO SERVE ENDS THEY
WERE NEVER INTENDED TO SERVE - TO ENFORCE THE COURT'S CONCEPT OF FAIR
PROCEDURES UNDER A TOTALLY UNRELATED STATUTE.  I SHOULD HAVE THOUGHT
THAT THE AFTERMATH OF DUPLEX PRINTING PRESS CO. V. DEERING (FN4) WOULD
HAVE PROVIDED A SUFFICIENT LESSON AS TO THE UNWISDOM OF SUCH A BROAD
AND BASICALLY IRRELEVANT USE OF THE ANTITRUST LAWS. 

THE PURPOSE OF THE SELF-REGULATION PROVISIONS OF THE SECURITIES
EXCHANGE ACT WAS TO DELEGATE GOVERNMENTAL POWER TO WORKING INSTITUTIONS
WHICH WOULD UNDERTAKE, AT THEIR OWN INITIATIVE, TO ENFORCE COMPLIANCE
WITH ETHICAL AS WELL AS LEGAL STANDARDS IN A COMPLEX AND CHANGING
INDUSTRY.  THIS SELF-INITIATING PROCESS OF REGULATION CAN WORK
EFFECTIVELY ONLY IF THE PROCESS ITSELF IS ALLOWED TO OPERATE FREE FROM
A CONSTANT THREAT OF ANTITRUST PENALTIES.  TO ACHIEVE THIS END, I
BELIEVE IT MUST BE HELD THAT THE SECURITIES EXCHANGE ACT REMOVES
ANTITRUST LIABILITY FOR ANY ACTION TAKEN IN GOOD FAITH TO EFFECTUATE AN
EXCHANGE'S STATUTORY DUTY OF SELF-REGULATION.  THE INQUIRY IN EACH CASE
SHOULD BE WHETHER THE CONDUCT COMPLAINED OF WAS FOR THIS PURPOSE.  IT
IT WAS, THAT SHOULD BE THE END OF THE MATTER SO FAR AS THE ANTITRUST
LAWS ARE CONCERNED - UNLESS, OF COURSE, SOME ANTITRUST VIOLATION OTHER
THAN THE MERE CONCERTED ACTION OF AN EXCHANGE AND ITS MEMBERS IS
ALLEGED.  (FN5) 

I WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE
CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE
VIEWS EXPRESSED IN THIS DISSENTING OPINION. 

FN1  SEE, E.G., RADIANT BURNERS, INC., V. PEOPLES GAS LIGHT & COKE
CO., 364 U.S. 656; KLOR'S, INC., V. BROADWAY-HALE STORES, INC., 359
U.S. 207; FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N, 312 U.S.
457.  IT MAY BE ASSUMED, I THINK, THAT ALMOST EVERY EXERCISE OF AN
EXCHANGE'S STATUTORY DUTY OF SELF-REGULATION WOULD INVOLVE AN ACTUAL OR
THREATENED CONCERTED REFUSAL TO DEAL - A "GROUP BOYCOTT." 

FN2  SEE ANTE, P. 364, NOTE 16.  CONTRARY TO THE COURT'S SUGGESTION,
THERE HAS NOT BEEN A TOTAL ABSENCE OF AGENCY OR LEGISLATIVE ATTENTION
TO THE PROBLEMS OF THE EXCHANGE'S DISCIPLINARY MACHINERY.   IN SEC.
19(C) OF THE 1934 ACT, CONGRESS EXPRESSLY ORDERED THE SECURITIES AND
EXCHANGE COMMISSION TO STUDY THE EXCHANGES' PROCEDURES FOR DISCIPLINING
MEMBERS AND TO REPORT BACK ON THE NEED FOR FURTHER LEGISLATION.  THE
COMMISSION REPORTED THE FOLLOWING YEAR, GIVING A DETAILED ACCOUNT OF
EXISTING PROCEDURES AND MAKING SPECIFIC RECOMMENDATIONS FOR REFORM. 
H.R. DOC. NO. 85, 74TH CONG., 1ST SESS. (JAN 25, 1935).  IT ADVISED
AGAINST LEGISLATION, HOWEVER, SUGGESTING THAT THE EXCHANGES THEMSELVES
BE GIVEN THE OPPORTUNITY TO ADOPT THE RECOMMENDATIONS VOLUNTARILY.  THE
AGENCY ALSO UNDERTOOK TO CONTINUE ITS SURVEILLANCE OF SUCH PROCEDURES
AND TO REPORT TO CONGRESS "SUCH FURTHER RECOMMENDATIONS AS IT MAY DEEM
ADVISABLE IN REGARD TO EXCHANGE GOVERNMENT."  ID., AT 17.  IN ITS 1935
ANNUAL REPORT, THE COMMISSION STATED THAT THE RESPONDENT EXCHANGE, AS
WELL AS MANY OTHERS, HAD VOLUNTARILY COMPLIED.  1 S.E.C. ANN. REP. 20
(1935).  THE PROCESS OF SURVEILLANCE HAS CONTINUED.  IN 1938, A GENERAL
OVERHAUL OF THE RESPONDENT EXCHANGE'S CONSTITUTION WAS EFFECTED BY
INFORMAL COMMISSION ACTION.  SEE 2 LOSS, SECURITIES REGULATION, 1179
1182.  IN 1941, THE COMMISSION'S PROPOSALS FOR STATUTORY AMENDMENTS
INCLUDED A SPECIFIC REQUEST TO EXTEND SEC. 19(B) RULE-MAKING AUTHORITY
OVER RULES GOVERNING DISCIPLINE OF MEMBERS.  REPORT OF THE SECURITIES
AND EXCHANGE COMMISSION ON PROPOSALS FOR AMENDM,ENTS TO THE SECURITIES
ACT OF 1933 AND THE SECURITIES EXCHANGE ACT OF 1934, HOUSE COMMITTEE
PRINT, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 77TH CONG., 1ST
SESS. 40 (AUG. 7, 1941).  THE PROPOSAL WAS NOT ACTED UPON.  EXCHANGE
DISCIPLINARY PROCEDURES WERE AGAIN EXAMINED IN RECENT CONGRESSIONAL
HEARINGS CONCERNING THE OPERATION OF THE STOCK MARKET.  THE ABSENCE OF
REVIEW BY THE COMMISSION IN INDIVIDUAL CASES WAS NOTED, BUT
REPRESENTATIVES OF THE RESPONDENT EXCHANGE ALSO TESTIFED THAT ALL SUCH
ACTIONS ARE REPORTED INFORMALLY TO THE AGENCY.  A DETAILED ACCOUNT OF
THE EXCHANGE'S PRESENT PROCEDURES WAS INCLUDED IN THE RECORD.  HEARINGS
BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGH
COMMERCE ON H.J. RES. 438, 87TH CONG., 1ST SESS. 107-113.  THESE RECENT
HEARINGS HAVE LED TO AN EXHAUSTIVE STUDY OF CURRENT STOCK MARKET
CONDITIONS, AND COMPLETION OF THE RESULTING REPORT BY THE COMMISSION IS
IMMINENT.  SEE SECURITIES EXCHANGE ACT OF 1934, SEC. 19(D), ADDED BY 75
STAT. 465, AS AMENDED, 76 STAT. 247, 15 U.S.C.  (SUPP. IV) SEC. 78SD);
S.E.C., REPORT OF SPECIAL STUDY OF SECURITIES MARKETS (APR. 3, 1963). 

FN3  THE COURT POINTED OUT THAT "AN ELABORATE SYSTEM OF TRIAL AND
APPELLATE TRIBUNALS EXISTS, FOR THE DETERMINATION OF WHETHER A GIVEN
GARMENT IS IN FACT A COPY OF A GUILD MEMBER'S DESIGN."  312 U.S., AT
462-463.  SEE ALSO KLOR'S, INC., V. BROADWAY-HALE STORES, 359 U.S. 207,
212. 

FN4  254 U.S. 443.  SEE APEX HOSIERY CO. V. LEADER, 310 U.S. 469;
UNITED STATES V. HUTCHESON, 312 U.S. 219. 

FN5  FOR EXAMPLE, AN EXCHANGE WOULD BE LIABLE UNDER THE ANTITRUST LAWS
IF IT CONSPIRED WITH OUTSIDERS, OR IF IT ATTEMPTED TO USE ITS POWER TO
MONOPOLIZE.  UNITED STATES V. BORDEN CO., 308 U.S. 188; MARYLAND & VA.
MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458; ALLEN BRADLEY CO.
V. LOCAL 3, IBEW, 325 U.S. 797.  FURTHERMORE, INDIVIDUAL MEMBERS OF AN
EXCHANGE WOULD BE LIABLE IF IT WERE SHOWN THAT THEY HAD CONSPIRED TO
USE THE EXCHANGE'S MACHINERY FOR THE PURPOSE OF SUPPRESSING
COMPETITION.  CF. GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439; UNITED
STATES V. PACIFIC & ARTIC RY. & NAV. CO., 228 U.S. 87.  APPLICATION OF
THE ANTITRUST LAWS TO SUCH CONDUCT WOULD REST ON THE PRESENCE OF AN
INDEPENDENT VIOLATION, NOT, AS THE PRESENT CASE DOES, SIMPLY UPON
CONCERTED ACTIVITY BE THE EXCHANGE AND ITS MEMBERS. 
..END :













BALTIMORE & OHIO RAILROAD CO. V. BOSTON & MAINE RAILROAD 373 U.S. 372 


NO. 97.  ARGUED MARCH 27, 1963.  - DECIDED MAY 20, 1963.* - JUDGMENT
AFFIRMED BY AN EQUALLY DIVIDED COURT.  - REPORTED BELOW:  202 F. SUPP.
830. 

*TOGETHER WITH NO. 98, MARYLAND PORT AUTHORITY ET AL. V. BOSTON &
MAINE RAILROAD ET AL., AND NO. 99, INTERSTATE COMMERCE COMMISSION V.
BOSTON & MAINE RAILROAD ET AL., ALSO ON APPEALS FROM THE SAME COURT. 


BALTIMORE & OHIO RAILROAD CO. ET AL. V. BOSTON & MAINE RAILROAD ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









GOBER V. CITY OF BIRMINGHAM 373 U.S. 374 


NO. 66.  ARGUED NOVEMBER 6-7, 1962.  - DECIDED MAY 20, 1963.  - 41 ALA.
APP. 313, 133 SO. 2D 697, REVERSED. 


IN BIRMINGHAM, ALA., WHICH HAS AN ORDINANCE REQUIRING RACIAL
SEGREGATION IN PUBLIC EATING PLACES, TEN NEGRO STUDENTS WERE CONVICTED
OF CRIMINAL TRESPASS ON PRIVATE PROPERTY FOR SITTING AT WHITE LUNCH
COUNTERS IN DEPARTMENT STORES AND FAILING TO LEAVE WHEN REQUESTED TO DO
SO.  HELD:  THE CONVICTIONS ARE REVERSED.  PETERSON V. CITY OF
GREENVILLE, ANTE, P. 244. 

GOBER ET AL. V. CITY OF BIRMINGHAM. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

PER CURIAM. 

THE JUDGMENTS ARE REVERSED.  PETERSON V. CITY OF GREENVILLE, ANTE, P.
244. 

FOR OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 248. 
..END :







AVENT V. NORTH CAROLINA 373 U.S. 375 


NO. 11.  ARGUED NOVEMBER 5, 7, 1962.  - DECIDED MAY 20, 1963.  -
REPORTED BELOW:  253 N.C. 580, 118 S.E.2D 47. 


IN DURHAM, N.C., WHICH HAS AN ORDINANCE REQUIRING RACIAL SEGREGATION
IN PUBLIC EATING PLACES, FIVE NEGRO STUDENTS AND TWO WHITE STUDENTS
WERE CONVICTED OF CRIMINAL TRESPASS FOR SITTING AT A LUNCH COUNTER
WHERE ONLY WHITE PEOPLE CUSTOMARILY WERE SERVED AND REFUSING TO LEAVE
WHEN REQUESTED BY THE MANAGER.  HELD: A JUDGMENT AFFIRMING THEIR
CONVICTION IS VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT OF
NORTH CAROLINA FOR CONSIDERATION IN THE LIGHT OF PETERSON V. CITY OF
GREENVILLE, ANTE, P. 244. 

AVENT ET AL. V. NORTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT
OF NORTH CAROLINA FOR CONSIDERATION IN THE LIGHT OF PETERSON V. CITY OF
GREENVILLE, ANTE, P. 244.  PATTERSON V. ALABAMA, 294 U.S. 600. 

FOR OPINION OF MR. JUSTICE HARLAN, SEE ANTE, P. 248. 
..END :




RICHARDS V. PENNSYLVANIA 373 U.S. 376 


NO. 887, MISC.  DECIDED MAY 20, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


RICHARDS V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















SHIP-BY-TRUCK CO., INC., DBA GRAHAM SHIP-BY-TRUCK CO. V. UNITED STATES
373 U.S. 376 


NO. 879.  DECIDED MAY 20, 1963.  - 208 F. SUPP. 847, AFFIRMED. 


SHIP-BY-TRUCK CO., INC., DOING BUSINESS AS GRAHAM SHIP-BY-TRUCK CO., ET
AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :
















DREXEL V. OHIO PARDON AND PAROLE COMMISSION 373 U.S. 377 


NO. 975, MISC.  DECIDED MAY 20, 1963. 


DREXEL V. OHIO PARDON AND PAROLE COMMISSION. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















ATWOOD'S TRANSPORT LINES, INC., V. UNITED STATES 373 U.S. 377 


NO. 935.  DECIDED MAY 20, 1963.  - 211 F. SUPP. 168, AFFIRMED. 


ATWOOD'S TRANSPORT LINES, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















ILLINOIS V. UNITED STATES 373 U.S. 378 


NO. 937.  DECIDED MAY 20, 1963.  - 213 F. SUPP. 83, AFFIRMED. 


ILLINOIS ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















HALLIBURTON OIL WELL CEMENTING CO. V. REILY 373 U.S. 64 


NO. 24.  ARGUED MARCH 26-27, 1962.  - RESTORED TO CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED DECEMBER 3, 1962.  - DECIDED MAY
13, 1963.  - 241 LA. 67, 127 SO. 2D 502, REVERSED. 


APPELLANT SUED IN A LOUISIANA STATE COURT FOR REFUND OF LOUISIANA USE
TAXES PAID UNDER PROTEST AND CLAIMED BY APPELLANT TO BE DISCRIMINATORY
AGAINST INTERSTATE COMMERCE.  LOUISIANA TAXED SALES WITHIN THE STATE AT
THE SAME RATE THAT IT TAXED THE USE WITHIN THE STATE OF ARTICLES
BROUGHT FROM OTHER STATES, AND, IN APPLYING ITS USE TAX, IT GAVE CREDIT
FOR SALES OR USE TAXES PAID TO OTHER STATES; BUT THERE WERE
DISCREPANCIES IN THE TAX BURDEN ARISING OUT OF THE METHODS OF APPLYING
THE TAXES.  PART OF THE TAX INVOLVED WAS BASED ON THE COST OF LABOR AND
SHOP OVERHEAD ARISING OUT OF THE ASSEMBLING IN OKLAHOMA OF SPECIALIZED
OIL WELL SERVICING EQUIPMENT BROUGHT INTO LOUISIANA AND USED THERE,
ALTHOUGH THESE ITEMS OF COST WOULD NOT HAVE BEEN INCLUDED IN COMPUTING
THE TAX HAD THE ASSEMBLING BEEN DONE IN LOUISIANA.  ANOTHER PART OF THE
TAX INVOLVED WAS BASED ON THE COST OF CERTAIN ARTICLES BOUGHT SECOND
HAND IN ANOTHER STATE FROM PARTIES NOT REGULARLY ENGAGED IN THE SALE OF
SUCH ARTICLES, ALTHOUGH THESE ARTICLES WOULD HAVE BEEN EXEMPT FROM THE
LOUISIANA SALES TAX HAD THEY BEEN PURCHASED WITHIN THE STATE.  HELD:
THE TAXES HERE INVOLVED ARE INVALID, BECAUSE THEY DISCRIMINATE AGAINST
INTERSTATE COMMERCE.  PP. 65-75. 

(A)  EQUAL TREATMENT FOR IN-STATE AND OUT-OF-STATE TAXPAYERS
SIMILARLY SITUATED IS THE CONDITION PRECEDENT FOR A VALID USE TAX ON
GOODS IMPORTED FROM OUT-OF-STATE.  PP. 69-70. 

(B)  CHARACTERIZING THE DISCRIMINATION HERE INVOLVED AS "INCIDENTAL"
DOES NOT VALIDATE THE TAX, SINCE EQUALITY FOR THE PURPOSES OF
COMPETITION AND THE FLOW OF COMMERCE IS MEASURED IN DOLLARS AND CENTS,
NOT LEGAL ABSTRACTIONS.  PP. 70-71. 

(C)  ON THIS RECORD, THE PROPER COMPARISON IS BETWEEN THE IN-STATE
AND OUT-OF-STATE MANUFACTURER-USER, AND THE LOUISIANA USE TAX, AS
APPLIED TO APPELLANT'S SPECIALIZED EQUIPMENT, DISCRIMINATES AGAINST
INTERSTATE COMMERCE.  PP. 71-73. 

(D)  SINCE LOUISIANA EXEMPTS FROM ITS SALES TAX CERTAIN ISOLATED
SALES WITHIN THE STATE, THE APPLICATION OF ITS USE TAX TO SIMILAR
ISOLATED SALES OUTSIDE THE STATE DISCRIMINATES AGAINST INTERSTATE
COMMERCE.  PP. 73-74. 

HALLIBURTON OIL WELL CEMENTING CO. V. REILY, COLLECTOR OF RENEVUE OF
LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE SOLE ISSUE BEFORE US IS WHETHER THE LOUISIANA USE TAX, AS APPLIED
TO THE APPELLANT, DISCRIMINATES AGAINST INTERSTATE COMMERCE IN
VIOLATION OF THE COMMERCE CLAUSE OF THE CONSTITUTION. 

THE LOUISIANA SALES AND USE TAXES FOLLOW THE BASIC PATTERN APPROVED
BY THIS COURT IN HENNEFORD V. SILAS MASON CO., 300 U.S. 577.  LOUISIANA
REVISED STATUTES, TIT. 47, SEC. 302, PROVIDES FOR THE IMPOSITION OF A
TAX "AT THE RATE OF TWO PER CENTUM (2%) OF THE SALES PRICE OF EACH ITEM
OR ARTICLE OF TANGIBLE PERSONAL PROPERTY WHEN SOLD AT RETAIL IN THIS
STATE  ...  ."  (FN1)  IT IMPOSES ANOTHER TAX "AT THE RATE OF TWO PER
CENTUM (2%) OF THE COST PRICE OF EACH ITEM OR ARTICLE OF TANGIBLE
PERSONAL PROPERTY WHEN THE SAME IS NOT SOLD BUT IS USED  ...  IN THIS
STATE  ...  ."  (FN2)  THIS LATTER TAX, COMMONLY KNOWN AS A USE TAX, IS
TO BE REDUCED BY THE AMOUNT OF ANY SIMILAR SALES OR USE TAX PAID ON THE
ITEM IN A DIFFERENT STATE.  LA. REV. STAT. ANN. SEC. 47:305.  AS NOTED
BY THE LOUISIANA SUPREME COURT BELOW AND APPROVED IN SILAS MASON, THE
PURPOSE OF SUCH A SALES-USE TAX SCHEME IS TO MAKE ALL TANGIBLE PROPERTY
USED OR CONSUMED IN THE STATE SUBJECT TO A UNIFORM TAX BURDEN
IRRESPECTIVE OF WHETHER IT IS ACQUIRED WITHIN THE STATE, MAKING IT
SUBJECT TO THE SALES TAX, OR FROM WITHOUT THE STATE, MAKING IT SUBJECT
TO A USE TAX AT THE SAME RATE.  THE APPELLANT ADMITS THE VALIDITY OF
SUCH A SCHEME.  IT CONTENDS, HOWEVER, THAT IN THIS CASE LOUISIANA HAS
DEPARTED FROM THE NORM OF TAX EQUALITY AND IMPOSES ON THE APPELLANT A
GREATER TAX BURDEN SOLELY BECAUSE THE PROPERTY IT USES IN LOUISIANA IS
BROUGHT FROM OUT-OF-STATE.  THE DIFFERENCE IN TAX BURDEN IS ADMITTED BY
THE APPELLEE. 

THE FACTS WERE STIPULATED BY THE PARTIES.  THE APPELLANT IS ENGAGED
IN THE BUSINESS OF SERVICING OIL WELLS IN A NUMBER OF OIL PRODUCING
STATES, INCLUDING LOUISIANA.  ITS BUSINESS REQUIRES THE USE OF
SPECIALIZED EQUIPMENT INCLUDING OIL WELL CEMENTING TRUCKS AND
ELECTRICAL WELL LOGGING TRUCKS.  THESE TRUCKS AND THEIR EQUIPMENT ARE
NOT GENERALLY AVAILABLE ON THE RETAIL MARKET, BUT ARE MANUFACTURED BY
THE APPELLANT AT ITS PRINCIPAL PLACE OF BUSINESS IN DUNCAN, OKLAHOMA. 
THE RAW MATERIALS AND SEMIFINISHED AND FINISHED ARTICLES NECESSARY FOR
THE MANUFACTURE OF THESE UNITS ARE ACQUIRED ON THE OPEN MARKET BY THE
APPELLANT AND ASSEMBLED BY ITS EMPLOYEES.  THE COMPLETED UNITS ARE
TESTED AT DUNCAN AND THEN ASSIGNED TO SPECIFIC FIELD CAMPS MAINTAINED
BY THE APPELLANT.  THE ASSIGNMENT IS PERMANENT UNLESS BETTER USE OF THE
UNIT CAN BE MADE AT ANOTHER CAMP.  NONE OF THESE UNITS IS MANUFACTURED
OR HELD FOR SALE TO THIRD PARTIES. 

BETWEEN JANUARY 1, 1952, AND MAY 31, 1955, THE APPELLANT SHIPPED NEW
AND USED UNITS OF ITS SPECIALIZED EQUIPMENT TO FIELD CAMPS IN
LOUISIANA.  IN ITS LOUISIANA TAX RETURNS FILED FOR THESE YEARS, THE
APPELLANT CALCULATED AND PAID USE TAXES UPON THE VALUE OF THE RAW
MATERIALS AND SEMIFINISHED AND FINISHED ARTICLES USED IN MANUFACTURING
THE UNITS.  THE APPELLANT DID NOT INCLUDE IN ITS CALCULATIONS THE VALUE
OF LABOR AND SHOP OVERHEAD ATTRIBUTABLE TO ASSEMBLING THE UNITS.  IT IS
ADMITTED THAT THIS COST FACTOR WOULD NOT HAVE BEEN TAXED HAD THE
APPELLANT ASSEMBLED ITS UNITS IN LOUISIANA RATHER THAN IN OKLAHOMA. 
THE STIPULATION OF FACTS STATED: 

"IF HALLIBURTON HAD PURCHASED ITS MATERIALS, OPERATED ITS SHOPS, AND
INCURRED ITS LABOR AND SHOP OVERHEAD EXPENSES AT A LOCATION WITHIN THE
STATE OF LOUISIANA, THERE WOULD HAVE BEEN A SALES TAX DUE TO THE STATE
OF LOUISIANA UPON THE COST OF MATERIALS PURCHASED IN LOUISIANA AND A
USE TAX ON MATERIALS PURCHASED OUTSIDE OF LOUISIANA; BUT THERE WOULD
HAVE BEEN NO LOUISIANA SALES TAX OR USE TAX DUE UPON THE LABOR AND SHOP
OVERHEAD." 

NEVERTHELESS, IN SEPTEMBER 1955, THE LOUISIANA COLLECTOR OF REVENUE,
THE APPELLEE, ASSESSED A DEFICIENCY OF $36,238.43 IN TAXES, INCLUDING
INTEREST, ON THE LABOR AND SHOP OVERHEAD COST OF ASSEMBLING THE UNITS. 
THE COLLECTOR HELD THAT THIS WAS REQUIRED BY THE LANGUAGE OF THE USE
TAX SECTION OF THE STATUTE WHICH LEVIES THE 2% USE TAX ON THE "COST
PRICE" OF THE ITEM, "COST PRICE" BEING DEFINED IN AN EARLIER SECTION AS
THE ACTUAL COST WITHOUT DEDUCTIONS ON ACCOUNT OF "LABOR OR SERVICE
COST,  ...  OR ANY OTHER EXPENSES WHATSOEVER."  LA. REV. STAT. ANN.
SEC. 47:301(3). 

ALSO DURING THIS PERIOD, THE APPELLANT PURCHASED 14 OIL WELL
CEMENTING SERVICE UNITS FROM THE SPARTAN TOOL AND SERVICE COMPANY OF
HOUSTON, TEXAS.  SPARTAN WAS NOT REGULARLY ENGAGED IN THE SALE OF SUCH
EQUIPMENT AND MADE THE SALE AFTER DECIDING TO LIQUIDATE ITS OIL WELL
SERVICING BUSINESS.  THE APPELLANT TRANSFERRED THESE UNITS TO
LOUISIANA.  ON ONE OTHER OCCASION, THE APPELLANT PURCHASED AN AIRPLANE
FROM THE WESTERN NEWSPAPER UNION OF NEW YORK, A COMPANY NOT REGULARLY
ENGAGED IN THE BUSINESS OF SELLING AIRPLANES.  THE APPELLANT ACQUIRED
THE PLANE FOR USE IN LOUISIANA.  NO LOUISIANA USE TAX WAS DECLARED OR
PAID SUBSEQUENT TO THE TRANSFER OF THESE ITEMS TO LOUISIANA.  IT IS
ADMITTED IN THE STIPULATION OF FACTS THAT HAD THESE ACQUISITIONS BEEN
MADE WITHIN LOUISIANA, THEY WOULD HAVE NOT BEEN TAXED.  THIS IS
OCCASIONED BY THE FACT THAT THE SALES TAX SECTION OF THE STATUTE
APPLIES ONLY TO SALES MADE AT RETAIL AND NOT TO ISOLATED SALES BY THOSE
NOT REGULARLY ENGAGED IN THE BUSINESS OF SELLING THE ITEM INVOLVED. 
NEVERTHELESS, THE COLLECTOR ASSESSED A DEFICIENCY OF $4,404.22 ON THE
VALUE OF THESE ITEMS SINCE THE USE TAX ON GOODS IMPORTED FROM OUT-OF
STATE CONTAINS NO EQUIVALENT DISTINCTION BETWEEN ISOLATED AND RETAIL
SALES. 

THE APPELLANT PAID THE DEFICIENCY UNDER PROTEST AND BROUGHT AN ACTION
IN THE LOUISIANA DISTRICT COURT FOR THE NINETEENTH DISTRICT FOR A
REFUND PURSUANT TO LA. REV. STAT. ANN.  SEC. 47:1576, ALLEGING THAT
THIS UNEQUAL TAX BURDEN IS A DISCRIMINATION AGAINST INTERSTATE
COMMERCE.  THE DISTRICT COURT FOUND THE ASSESSMENT DISCRIMINATORY.  ON
APPEAL, THE LOUISIANA SUPREME COURT REVERSED, HOLDING THAT SINCE NO
UNREASONABLE DISTINCTIONS OR CLASSIFICATIONS HAD BEEN DRAWN IN THE
LOUISIANA SALES AND USE TAX STATUTE, THE INCIDENTAL DISCREPANCY IN TAX
BURDEN DID NOT AMOUNT TO A DISCRIMINATION AGAINST INTERSTATE COMMERCE. 
241 LA. 67, 127 SO. 2D 502.  ON APPEAL TO THIS COURT, WE NOTED PROBABLE
JURISDICTION.  368 U.S. 809.  THE CASE WAS FIRST ARGUED DURING THE
OCTOBER TERM 1961.  WE SUBSEQUENTLY ORDERED IT REARGUED.  369 U.S.
835. 

                       I. 

THIS IS ANOTHER IN A LONG LINE OF CASES ATTACKING STATE TAXATION AS
UNDULY BURDENING INTERSTATE COMMERCE.  AS THIS COURT STATED IN BEST &
CO. V. MAXWELL, 311 U.S. 454, 455-456:  "IN EACH CASE IT IS OUR DUTY TO
DETERMINE WHETHER THE STATUTE UNDER ATTACK, WHATEVER ITS NAME MAY BE,
WILL IN ITS PRACTICAL OPERATION WORK DISCRIMINATION AGAINST INTERSTATE
COMMERCE."  THIS CONCERN WITH THE ACTUALITY OF OPERATION, A DOMINANT
THEME RUNNING THROUGH ALL STATE TAXATION CASES, EXTENDS TO EVERY ASPECT
OF THE TAX OPERATIONS.  THUS, IN NIPPERT V. RICHMOND, 327 U.S. 416, THE
CITY OF RICHMOND PLACED A FIXED FEE AND EARNINGS TAX ON ITINERANT
SOLICITORS OF SALES WITHIN THE CITY.  ON ITS FACE, THE ORDINANCE
APPLIED TO IN-STATE AS WELL AS OUT-OF-STATE DISTRIBUTORS DOING BUSINESS
BY MEANS OF ITINERANT SOLICITORS.  THE COURT NOTED, HOWEVER, THE VERY
FACT THAT A DISTRIBUTOR IS OUT-OF-STATE MAKES HIS USE OF, AND
DEPENDENCE ON, SOLICITORS MORE LIKELY.  THUS, "THE VERY DIFFERENCE
BETWEEN INTERSTATE AND LOCAL TRADE, TAKEN IN CONJUNCTION WITH THE
INHERENT CHARACTER OF THE TAX, MAKES EQUALITY OF APPLICATION AS BETWEEN
THOSE TWO CLASSES OF COMMERCE, GENERALLY SPEAKING, IMPOSSIBLE."  ID.,
AT 432.  THE COURT CONCLUDED THAT THE TAX WAS "DISCRIMINATORY IN FAVOR
OF THE LOCAL MERCHANT AS AGAINST THE OUT-OF-STATE ONE."  ID., AT 431. 
CONSIDERED IN ISOLATION, THE LOUISIANA USE TAX IS DISCRIMINATORY; IT
WAS INTENDED TO APPLY PRIMARILY TO GOODS ACQUIRED OUT-OF-STATE AND USED
IN LOUISIANA.  (FN3) IF IT STOOD ALONE, IT WOULD BE INVALID.  HOWEVER,
A PROPER ANALYSIS MUST TAKE "THE WHOLE SCHEME OF TAXATION INTO
ACCOUNT."  GALVESTON, H.&S.A.R.  CO. V. TEXAS, 210 U.S. 217, 227; GREGG
DYEING CO. V. QUERY, 286 U.S. 472, 479-480.  THUS, IN BEST & CO. V.
MAXWELL, SUPRA, THE COURT COMPARED THE SOLICITATION TAX WITH THE
EQUIVALENT TAX ON LOCAL RETAIL MERCHANTS BEFORE FINDING IT
DISCRIMINATORY.  311 U.S., AT 456.  SEE MEMPHIS STEAM LAUNDRY CLEANER,
INC., V. STONE, 342 U.S. 389, 394-395; CF. PHILLIPS CHEMICAL CO. V.
DUMAS SCHOOL DISTRICT, 361 U.S. 376. 

WHEN HENNEFORD V. SILAS MASON CO., 300 U.S. 577, REACHED THIS COURT
ON APPEAL, THE COURT CONSIDERED THE WASHINGTON USE TAX IN THE CONTEXT
OF THE TAX SCHEME OF WHICH IT WAS A PART, AS A "COMPENSATING TAX"
INTENDED TO COMPLEMENT THE STATE SALES TAX.  SO CONSIDERED, THE COURT
CONCLUDED: "EQUALITY IS THE THEME THAT RUNS THROUGH ALL THE SECTIONS OF
THE STATUTE  ...  .  NO ONE WHO USES PROPERTY IN WASHINGTON AFTER
BUYING IT AT RETAIL IS TO BE EXEMPT FROM A TAX UPON THE PRIVILEGE OF
ENJOYMENT EXCEPT TO THE EXTENT THAT HE HAS PAID A USE OR SALES TAX
SOMEWHERE."  THE USE TAX IS "UPON ONE ACTIVITY OR INCIDENT," AND THE
SALES TAX IS "UPON ANOTHER, BUT THE SUM IS THE SAME WHEN THE RECKONING
IS CLOSED."  THE BURDEN ON THE OUT-OF-STATE ACQUISITION "IS BALANCED BY
AN EQUAL BURDEN WHERE THE SALE IS STRICTLY LOCAL."  300 U.S., AT 583
584. 

THE CONCLUSION IS INESCAPABLE:  EQUAL TREATMENT FOR IN-STATE AND OUT
OF-STATE TAXPAYERS SIMILARLY SITUATED IS THE CONDITION PRECEDENT FOR A
VALID USE TAX ON GOODS IMPORTED FROM OUT-OF-STATE. 

THE INEQUALITY OF THE LOUISIANA TAX BURDEN BETWEEN IN-STATE AND OUT
OF-STATE MANUFACTURER-USERS IS ADMITTED.  ALTHOUGH THE RATE IS THE
SAME, THE APPELLANT'S TAX BASE IS INCREASED THROUGH THE INCLUSION OF
ITS PRODUCT'S LABOR AND SHOP OVERHEAD.  THE LOUISIANA SUPREME COURT
CHARACTERIZED THIS DISCREPANCY AS INCIDENTAL.  HOWEVER, EQUALITY FOR
THE PURPOSES OF COMPETITION AND THE FLOW OF COMMERCE IS MEASURED IN
DOLLARS AND CENTS, NOT LEGAL ABSTRACTIONS.  (FN4)  IN THIS CASE THE
"INCIDENTAL DISCREPANCY" - THE LABOR AND SHOP OVERHEAD FOR THE UNITS IN
DISPUTE - AMOUNTS TO $1,547,109.70.  THE USE TAX RATE IN LOUISIANA IS
2% AND HAS RISEN IN SOME STATES TO 4%.  (FN5)  THE RESULTING TAX
INEQUALITY IS CLEARLY SUBSTANTIAL. 

BUT EVEN ACCEPTING THIS, THE LOUISIANA SUPREME COURT CONCLUDED THAT
THE COMPARISON BETWEEN IN-STATE AND OUT-OF-STATE MANUFACTURER-USERS IS
NOT THE PROPER WAY TO FRAME THE ISSUE OF EQUALITY.  IT STATED:  "THE
PROPER COMPARISON WOULD BE BETWEEN THE USE TAX ON THE ASSEMBLED
EQUIPMENT AND A SALES TAX ON THE SAME EQUIPMENT IF IT WERE SOLD."  ON
THE BASIS OF SUCH A COMPARISON, THE OUT-OF-STATE MANUFACTURER-USER IS
ON THE SAME TAX FOOTING WITH RESPECT TO THE ITEM USED AS THE RETAILER
OF A SIMILAR ITEM, OR THE COMPETITOR WHO BUYS FROM THE RETAILER RATHER
THAN MANUFACTURE HIS OWN.  HOWEVER, SUCH A COMPARISON EXCLUDES FROM
CONSIDERATION, WITHOUT ANY EXPLANATION, THE VERY IN-STATE TAXPAYER WHO
IS MOST SIMILARLY SITUATED TO THE APPELLANT, THE LOCAL MANUFACTURER
USER.  IF THE LOUISIANA LEGISLATURE WERE IN FACT CONCERNED OVER ANY TAX
BREAK THE MANUFACTURER-USER OBTAINS, IT WOULD SURELY HAVE MADE SPECIAL
ARRANGEMENTS TO TAKE CARE OF THE IN-STATE AS WELL AS OUT-OF-STATE
LOOPHOLE - UNLESS, OF COURSE, IT INTENDED TO DISCRIMINATE.  WE CAN ONLY
CONCLUDE, THEREFORE, THAT THE PROPER COMPARISON ON THE BASIS OF THIS
RECORD IS BETWEEN IN-STATE AND OUT-OF-STATE MANUFACTURER-USERS.  AND IF
THIS COMPARISON DISCLOSES DISCRIMINATORY EFFECTS, IT COULD BE IGNORED
ONLY AFTER A SHOWING OF ADEQUATE JUSTIFICATION. 

WHILE THE INEQUALITY IN QUESTION MAY HAVE BEEN AN ACCIDENT OF
STATUTORY DRAFTING, IT DOES IN FACT STRIKE AT A SIGNIFICANT SEGMENT OF
ECONOMIC ACTIVITY AND CARRIES ECONOMIC EFFECTS OF A TYPE PROSCRIBED BY
MANY PREVIOUS CASES.  THE APPELLANT MANUFACTURES EQUIPMENT SPECIALLY
ADAPTED TO ITS OIL SERVICING BUSINESS.  THE EQUIPMENT IS EXPENSIVE;
BECAUSE OF ITS LIMITED AND CUSTOM PRODUCTION, THE LABOR AND SHOP
OVERHEAD IS NECESSARILY A SIGNIFICANT COST FACTOR.  ACTIVITY OF THIS
CHARACTER IS OFTEN ON THE FOREFRONT OF ECONOMIC DEVELOPMENT WHERE
EQUIPMENT AND METHODS HAVE YET TO REACH THE STANDARDIZATION AND
ACCEPTANCE NECESSARY FOR MASS PRODUCTION.  IF LOUISIANA WERE THE ONLY
STATE TO IMPOSE AN ADDITIONAL TAX BURDEN FOR SUCH OUT-OF-STATE
OPERATIONS, THE DISPARATE TREATMENT WOULD BE AN INCENTIVE TO LOCATE
WITHIN LOUISIANA; IT WOULD TEND "TO NEUTRALIZE ADVANTAGES BELONGING TO
THE PLACE OF ORIGIN."  BALDWIN V. SEELIG., INC., 294 U.S. 511, 527. 
DISAPPROVAL OF SUCH A RESULT IS IMPLICIT IN ALL CASES DEALING WITH TAX
DISCRIMINATION, SINCE A TAX WHICH IS "DISCRIMINATORY IN FAVOR OF THE
LOCAL MERCHANT," NIPPERT V. RICHMOND, SUPRA, ALSO ENCOURAGES AN OUT-OF
STATE OPERATOR TO BECOME A RESIDENT IN ORDER TO COMPETE ON EQUAL
TERMS.  (FN6)  IF SIMILAR UNEQUAL TAX STRUCTURES WERE ADOPTED IN OTHER
STATES, A NOT UNLIKELY RESULT OF AFFIRMING HERE, THE EFFECTS WOULD BE
MORE WIDESPREAD.  THE ECONOMIC ADVANTAGES OF A SINGLE ASSEMBLY PLANT
FOR THE APPELLANT'S MULTISTATE ACTIVITIES WOULD BE DECREASED FOR UNITS
SENT TO EVERY STATE OTHER THAN THE STATE OF RESIDENCE.  AT BEST, THIS
WOULD ENCOURAGE THE APPELLANT TO LOCATE HIS ASSEMBLY OPERATIONS IN THE
STATE OF LARGEST USE FOR THE UNITS.  AT WORST, IT WOULD ENCOURAGE THEIR
ACTUAL FRACTIONALIZATION OR DISCONTINUANCE.  CLEARLY, APPROVAL OF THE
LOUISIANA USE TAX IN THIS CASE WOULD "INVITE A MULTIPLICATION OF
PREFERENTIAL TRADE AREAS DESTRUCTIVE OF THE VERY PURPOSE OF THE
COMMERCE CLAUSE."  DEAN MILK CO. V. MADISON, 340 U.S. 349, 356.  (FN7) 
IN LIGHT OF THESE CONSIDERATIONS WE SEE NO REASON TO DEPART FROM THE
STRICT RULE OF EQUALITY ADOPTED IN SILAS MASON, AND WE CONCLUDE THAT
THE LOUISIANA USE TAX AS APPLIED TO THE APPELLANT'S SPECIALIZED
EQUIPMENT DISCRIMINATES AGAINST INTERSTATE COMMERCE. 

A SIMILAR DISPOSITION OF THE TAX ON THE ISOLATED SALES FOLLOWS AS A
MATTER OF COURSE.  THE DISPARATE TREATMENT IS BALDLY ADMITTED BY THE
LOUISIANA SUPREME COURT:  "THE EXEMPTION OF AN ISOLATED SALE FROM THE
PROVISIONS OF THE SALES TAX APPLIES STRICTLY TO SALES WITHIN THE STATE
OF LOUISIANA; IT HAS NO EFFECT WHATSOEVER ON ANY TRANSACTION WITHOUT
THE STATE."  THE OUT-OF-STATE ISOLATED SALE, IT CONCLUDES, MUST
THEREFORE BE TREATED "AS IF" IT WERE A SALE AT RETAIL.  AS THE FACTS OF
THIS CASE INDICATE, ISOLATED SALES INVOLVE PRIMARILY THE ACQUISITION OF
SECOND-HAND EQUIPMENT FROM PREVIOUS USERS.  THE EFFECT OF THE TAX IS TO
FAVOR LOCAL USERS WHO WISH TO DISPOSE OF EQUIPMENT OVER OUT-OF-STATE
USERS SIMILARLY SITUATED.  WHATEVER THE LOUISIANA LEGISLATURE'S REASONS
FOR GRANTING SUCH AN EXEMPTION TO THIS SEGMENT OF THE LOCAL SECOND-HAND
MARKET, (FN8) NO ATTEMPT HAS BEEN MADE TO JUSTIFY IT OR TO SHOW HOW ITS
PURPOSE WOULD BE DEFEATED BY EXTENDING THE SAME EXEMPTION TO SIMILAR
OUT-OF-STATE TRANSACTIONS.  (FN9)  WE THEREFORE CONCLUDE THAT THE USE
TAX ON ISOLATED SALES IN THIS CASE DEPARTS FROM THE EQUALITY REQUIRED
BY SILAS MASON AND DISCRIMINATES AGAINST INTERSTATE COMMERCE. 

THIRTY-FIVE STATES OTHER THAN LOUISIANA HAVE SALES AND USE TAX
STATUTES.  AT THIS JUNCTURE, LOUISIANA, ACCORDING TO THE PARTIES, IS
THE ONLY STATE TO ADOPT THE CONSTRUCTIONS PRESENTED FOR DECISION IN
THIS CASE.  THOSE FEW STATES WHICH HAVE CONSIDERED THESE ISSUES AT ALL
APPEAR TO HAVE REJECTED THE LOUISIANA POSITION FOR REASONS IN ACCORD
WITH OUR OPINION HERE.  BOTH OHIO AND NORTH DAKOTA HAVE BY
ADMINISTRATIVE REGULATIONS EXCLUDED LABOR AND SHOP OVERHEAD FROM THE
TAX BASE OF THE OUT-OF-STATE MANUFACTURER-USER ON THE GROUND THAT ITS
INCLUSION MIGHT VIOLATE THE COMMERCE CLAUSE.  (FN10)  IN CHICAGO BRIDGE
& IRON CO. V. JOHNSON, 19 CAL. 2D 162, 119 P.2D 945, THE CALIFORNIA
SUPREME COURT UPHELD THE APPLICATION OF ITS USE TAX TO AN OUT-OF-STATE
MANUFACTURER-USER, EXPRESSLY POINTING OUT THAT BECAUSE LABOR AND SHOP
OVERHEAD HAD BEEN EXCLUDED FROM ITS TAX BASE, THE TAXPAYER WAS IN NO
DIFFERENT POSITION FROM ITS IN-STATE COMPETITOR.  THE PARTIES HAVE BEEN
ABLE TO FIND ONLY ONE STATE CASE PASSING DIRECTLY ON EITHER QUESTION. 
IN STATE V. BAY TOWING & DREDGING CO., INC., 265 ALA. 282, 90 SO. 2D
743, THE ALABAMA SUPREME COURT HELD THAT THE IN-STATE EXEMPTION FOR
ISOLATED SALES HAD TO BE EXTENDED TO OUT-OF-STATE ISOLATED SALES TO
AVOID DISCRIMINATION AGAINST INTERSTATE COMMERCE. 

THE JUDGMENT OF THE SUPREME COURT OF LOUISIANA IS REVERSED AND THE
CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  EMPHASIS ADDED. 

FN2  EMPHASIS ADDED. 

FN3  IN FACT, IT WAS JUST SUCH ISOLATED CONSIDERATION THAT LED THE
TRIAL COURT IN SILAS MASON CO. V. HENNEFORD, 15 F. SUPP. 958, 962,
REV'D, 300 U.S. 577, TO STRIKE DOWN THE STATE OF WASHINGTON USE TAX. 

FN4  THUS IN MEMPHIS STEAM LAUNDRY CLEANER, INC., V. STONE, SUPRA,
AND BEST & CO. V. MAXWELL, SUPRA, THE COURT COMPARED THE ACTUAL TAX
BILLS OF THE LOCAL AND OUT-OF-STATE TAXPAYERS.  IN THE FORMER, THE
COURT FOUND DISCRIMINATORY A $50 LICENSE TAX ON EACH TRUCK USED BY AN
OUT-OF-STATE LAUNDRY BUSINESS SOLICITING AND PICKING UP LAUNDRY IN
MISSISSIPPI BECAUSE RESIDENT LAUNDRIES WERE REQUIRED TO PAY ONLY $8 PER
TRUCK.  IN THE LATTER, THE COURT FOUND DETERMINATIVE A SIMILAR
DISCREPANCY BETWEEN THE $1 TAX PAID BY LOCAL MERCHANTS AND THE $250 TAX
PAID BY THE ITINERANT SOLICITOR. 

FN5  MICHIGAN, PENNSYLVANIA, AND WASHINGTON EACH HAS 4% SALES AND USE
TAXES.  2 P-H 1963 FED. TAX SERV. PARA. 13,299. 

FN6  SEE CASES COLLECTED IN MEMPHIS STEAM LAUNDRY CLEANER, INC., V.
STONE, SUPRA, P. 392, N. 7. 

FN7  IN DEAN MILK CO., THE CITY OF MADISON PASSED AN ORDINANCE
REQUIRING MILK PASTEURIZATION PLANTS TO LOCATE WITHIN A FIVE MILE
RADIUS OF MADISON TO EASE THE PROBLEM OF LOCAL HEALTH INSPECTION.  THE
COURT HELD THAT WHERE THERE WERE ADEQUATE ALTERNATIVE METHODS FOR
INSURING HEALTH STANDARDS, THE LOCATIONAL REQUIREMENT WAS A BURDEN ON
INTERSTATE COMMERCE.  THE DISSENT SAW NO PROBLEM IN THIS RESTRICTION: 

"AS A PRACTICAL MATTER, SO FAR AS THE RECORD SHOWS, DEAN CAN EASILY
COMPLY WITH THE ORDINANCE WHENEVER IT WANTS TO.  THEREFORE, DEAN'S
PERSONAL PREFERENCE TO PASTEURIZE IN ILLINOIS, NOT THE ORDINANCE, KEEPS
DEAN'S MILK OUT OF MADISON."  340 U.S., AT 357. 

HOWEVER, THIS "PERSONAL PREFERENCE" IS THE ESSENCE OF A NATIONAL
UNRESTRICTED MARKET.  IF, BEFORE STRIKING DOWN A BURDEN ON INTERSTATE
COMMERCE, THIS COURT HAD TO LOOK TO THE RECORD FOR ECONOMIC
JUSTIFICATIONS FOR DEAN'S LOCATION IN ILLINOIS, FOR THE APPELLANT'S
LOCATION IN OKLAHOMA, FOR SINGLE RATHER THAN MULTIPASTEURIZATION OR
ASSEMBLY OPERATIONS, THE FREE FLOW OF COMMERCE WOULD DISAPPEAR BEFORE
OUR VERY EYES.  JUSTIFICATION FOR THE SYSTEM IS PRESUMED IN THE
COMMERCE CLAUSE ITSELF. 

FN8  THE APPELLEE ARGUES THAT THE REASON FOR THE EXEMPTION IS THAT
ANY ITEM SOLD IN A LOCAL ISOLATED SALE HAS ALREADY BEEN SUBJECTED TO
EITHER A SALES TAX IF IT WAS ORIGINALLY ACQUIRED IN LOUISIANA OR A USE
TAX IF IT WAS IMPORTED, WHEREAS THERE IS NO ASSURANCE THAT AN ITEM
ACQUIRED IN AN OUT-OF-STATE ISOLATED SALE HAS EVER SUSTAINED SUCH A TAX
BURDEN.  THE APPELLEE FURTHER MAINTAINS THAT THE TAXES HERE IN QUESTION
COULD HAVE BEEN REDUCED BY ANY SUCH PREVIOUS TAXATION.  IF THE RECORD
SUPPORTED THE APPELLEE'S POSITION, IT WOULD BE CAREFULLY CONSIDERED. 
HOWEVER, THE APPELLEE HAS SHOWN US NO REGULATIONS PROVIDING FOR THE
DEDUCTION OF SALES OR USE TAXES PAID ON THE ITEM PRIOR TO THE OUT-OF
STATE ISOLATED SALE; THE APPELLEE STATED IN THE STIPULATION OF FACTS
THAT ALL EVIDENCE SHOWING AN ISOLATED SALE WAS IRRELEVANT; AND THE
ABOVE-QUOTED STATEMENT OF THE LOUISIANA SUPREME COURT LEAVES LITTLE
ROOM FOR SUCH MODIFICATION. 

FN9  ALTHOUGH NO EVIDENCE WAS PRESENTED ON THE ISSUE, ONE REASON FOR
NOT TAXING LOCAL ISOLATED SALES AND THE LABOR AND SHOP OVERHEAD OF THE
LOCAL MANUFACTURER-USER MAY BE THE DIFFICULT ADMINISTRATIVE BURDEN IN
EITHER CALCULATING OR ENFORCING THE TAX.  HOWEVER, SUCH A LOCAL
ADMINISTRATIVE PROBLEM WOULD NOT JUSTIFY A DIFFERENT TREATMENT OF THE
SIMILAR OUT-OF-STATE TRANSACTION, SINCE THE MERE EXTENSION OF THE
SPECIAL TREATMENT TO THE OUT-OF-STATE TRANSACTION WOULD SATISFY BOTH
THE LOCAL PROBLEM AND THE COMMERCE CLAUSE. 

WE FAIL TO SEE A SIMILAR ADMINISTRATIVE PROBLEM IN CALCULATING THE
APPELLANT'S LABOR AND SHOP OVERHEAD, SINCE THE TAX BASE UNDER EITHER
APPROACH IS CALCULATED ON THE BASIS OF THE COST FACTORS RECORDED IN THE
APPELLANT'S BOOKS. 

FN10  CCH OHIO STATE REP., CIR. NO. 18, MAR. 1, 1954, PARA. 60371.70;
NORTH DAKOTA TAX COMMISSION, RULES NOS. 55 AND 113. 

MOREOVER, AS THIS COURT NOTED IN HENNEFORD V. SILAS MASON CO., 300
U.S. 577, 581, THE STATE OF WASHINGTON, RECOGNIZING THE LATENT
INEQUALITY, MADE SPECIAL ARRANGEMENTS FOR THE MANUFACTURER-USER: 

"THE TAX PRESUPPOSES EVERYWHERE A RETAIL PURCHASE BY THE USER BEFORE
THE TIME OF USE.  IF HE HAS MANUFACTURED THE CHATTEL FOR HIMSELF,  ...
HE IS EXEMPT FROM THE USE TAX, WHETHER TITLE WAS ACQUIRED IN WASHINGTON
OR ELSEWHERE." 

MR. JUSTICE BRENNAN, CONCURRING. 

I FULLY CONCUR IN THE OPINION OF THE COURT INSOFAR AS IT TREATS OF
ISOLATED SALES.  IT SEEMS CLEAR THAT LOUISIANA EXEMPTS FROM SALES
TAXATION WITHIN THE STATE THE PURCHASE OF ITEMS WHICH, IF BOUGHT
OUTSIDE THE STATE AND BROUGHT IN, WOULD EVENTUALLY INCUR A LOUISIANA
USE TAX.  THE EQUALITY OF TREATMENT WHICH MY BROTHER CLARK FINDS
ASSURED BY THE CREDIT FOR TAXES ALREADY PAID TO OTHER STATES SEEMS TO
ME WHOLLY FORTUITOUS.  THE CREDIT FOR PRIOR SALES OR USE TAXES WILL
AVERT DISCRIMINATION IN THE TAXATION OF CASUAL SALES ONLY IF THE OUT-OF
STATE PURCHASER HAS ALREADY PAID A SALES OR USE TAX EQUAL TO OR GREATER
THAN LOUISIANA'S USE TAX, SO THAT THE CREDIT IS FULLY EFFECTIVE.  IF
THE PURCHASER ABROAD HAS PAID NO PRIOR TAX, OR ONE OF SMALLER AMOUNT,
THEN UPON HIS FIRST USE OF THE ARTICLE IN LOUISIANA HE INCURS A TAX
LIABILITY WHICH HE WOULD CLEARLY HAVE ESCAPED HAD HE MADE THE IDENTICAL
PURCHASE AT AN EXEMPTED CASUAL SALE WITHIN THE STATE.  NO JUSTIFICATION
FOR SUCH DISCRIMINATION HAS BEEN SUGGESTED, AND I CAN THINK OF NONE
BEYOND A MERE POSSIBILITY OF ADMINISTRATIVE CONVENIENCE. 

I ALSO AGREE THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, THE
APPLICATION OF LOUISIANA'S USE TAX STATUTE TO APPELLANT IS
CONSTITUTIONALLY IMPERMISSIBLE.  THIS RESULT DOES NOT, I THINK, FLOW
FROM ANY DUTY UPON THE STATES TO ENSURE ABSOLUTE EQUALITY OF ECONOMIC
BURDEN AS BETWEEN SALES AND USE TAXPAYERS.  FOR WE HAVE SUSTAINED THE
CONSTITUTIONALITY OF THE SALES AND COMPENSATING USE TAX SYSTEM,
HENNEFORD V. SILAS MASON CO., 300 U.S. 577, EVEN THOUGH AS A MATTER OF
ECONOMIC FACT THE OUT-OF-STATE USE TAXPAYER IS LIKELY ULTIMATELY TO
INCUR A HEAVIER BURDEN THAN HIS IN-STATE COUNTERPART, THE SALES
TAXPAYER.  SUCH A DISPARITY MAY RESULT, THOUGH THE RATE OF TAXATION
UPON THE TWO IS IDENTICAL, BECAUSE THE IN-STATE SELLER IS SOMEWHAT
LIKELIER TO ABSORB SOME PART OF THE SALES-TAX BURDEN THAN IS THE OUT-OF
STATE SELLER TO ABSORB THE BURDEN OF THE USE TAX WHICH HIS CUSTOMER
EVENTUALLY MUST PAY.  WARREN AND SCHLESINGER, SALES AND USE TAXES:
INTERSTATE COMMERCE PAYS ITS WAY, 38 COL. L. REV. 49, 70-74 (1938). 
AND WE HAVE ALSO INTIMATED, 300 U.S., AT 587, THAT A STATE MAY NOT BE
CONSTITUTIONALLY OBLIGED TO CREDIT THE AMOUNT OF SALES TAXES PAID IN
OTHER STATES AGAINST THE USE TAX IT IMPOSES.  SEE NOTE, 51 HARV. L.
REV. 130, 132-133 (1937).  NEVERTHELESS, IF THE CONSTITUTION DOES NOT
MANDATE ABSOLUTE EQUALITY OF TREATMENT AS BETWEEN IN-STATE AND OUT-OF
STATE SALES, IT ASSUREDLY DOES FORBID DISCRIMINATORY TREATMENT BY THE
STATES.  DISCRIMINATION WOULD RESULT IF DIFFERENT RATES OF TAXATION
WERE IMPOSED BY THE STATE ON USE AND SALE, AND IT IS THE RESULT HERE
BECAUSE LOUISIANA, WHILE IT TAXES THE FULL VALUE OF PROPERTY ASSEMBLED
WITHOUT AND USED BUT NOT SOLD WITHIN THE STATE, DOES NOT TAX THE FULL
VALUE OF PROPERTY ASSEMBLED WITHIN THE STATE AND USED BUT NOT SOLD
THERE. 

IT DOES NOT FOLLOW, HOWEVER, NOR DO I READ THE COURT'S OPINION AS SO
HOLDING, THAT AS A RESULT OF TODAY'S DECISION LOUISIANA HAS NO OPTION
BUT TO ADOPT THE PRACTICE OF OHIO, NORTH DAKOTA, AND CALIFORNIA, SEE
PP. 74-75, SUPRA, AND EXCLUDE LABOR AND SHOP OVERHEAD FROM THE TAX BASE
OF THE OUT-OF-STATE MANUFACTURER-USER.  THAT MIGHT BE THE CASE IF THE
SOLE JUSTIFICATION FOR THE USE TAX WERE TO OFFSET THE EFFECT OF SALES
TAXES IMPOSED ON IN-STATE PURCHASERS, AND THEREBY TO DETER DOMESTIC
CONSUMERS FROM SEEKING TO EVADE THE SALES TAX BY PURCHASING OUT OF
STATE.  BUT WE HAVE RECOGNIZED AN ALTERNATIVE JUSTIFICATION FOR THE USE
TAX AS A LEVY UPON "THE PRIVILEGE OF USE AFTER COMMERCE IS AT AN END." 
300 U.S., AT 582; SEE HARTMAN, STATE TAXATION OF INTERSTATE COMMERCE
(1953), 162-163.  THUS LOUISIANA SURELY MAY IF IT CHOOSES TAX
APPELLANT'S TRUCKS AND EQUIPMENT, WHEN THEY COME TO REST IN THE STATE,
AT THEIR FULL VALUE.  SINCE THIS ALTERNATIVE IS AVAILABLE TO LOUISIANA
AND ANY OTHER USE-TAX STATE, I FAIL TO SEE THE INEVITABILITY OF MY
BROTHER CLARK'S PREDICTION THAT "THIS DECISION WILL DEPRIVE LOUISIANA
OF MILLIONS OF DOLLARS UNDER ITS SALES TAX."  THE COURT HOLDS NO MORE
THAN THAT IF LOUISIANA CHOOSES TO LEVY SUCH A USE TAX IT CANNOT
CONSTITUTIONALLY EXEMPT IN-STATE MANUFACTURER-USERS AS IT NOW DOES; IT
MUST TAX "THE PRIVILEGE OF USE" WITHIN THE STATE OF THE PROPERTY OF
SUCH USERS AT FULL VALUE AND AT THE SAME RATES.  NOTHING IN THE COURT'S
OPINION NOR IN MY VIEW OF THE CASE PRESCRIBES THE PARTICULAR MANNER IN
WHICH LOUISIANA MUST OBEY THE CONSTITUTION. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

THE COURT STRIKES DOWN LOUISIANA'S USE TAX ON THE GROUND THAT IT
DISCRIMINATES AGAINST OUT-OF-STATE ASSEMBLERS WHO MOVE THEIR PRODUCTS
INTO THE STATE FOR USE THEREIN.  IN SO DOING THE COURT PERMITS THE OUT
OF-STATE ASSEMBLER TO MOVE HIS FINISHED PRODUCT INTO THE STATE AT A TAX
LOWER THAN THAT EXACTED UPON LOUISIANA'S RESIDENTS WHO PURCHASE THE
IDENTICAL PRODUCT WITHIN THE STATE.  THE DAMAGE THAT THIS DECISION WILL
DO TO THE TAX STRUCTURE OF A STATE IS CLEARLY REVEALED BY THE AMICI
CURIAE BRIEFS FILED HERE.  THOMAS JORDAN, INC., RENTS BARGES TO OTHERS
IN LOUISIANA.  THEY ARE BUILT BY SHIPYARDS OUTSIDE OF LOUISIANA. 
JORDAN CLAIMS THAT WHEN IT BRINGS A BARGE TO LOUISIANA IT CAN ONLY BE
TAXED ON THE ITEMS THAT WENT INTO THE BARGE, NOT THE FINISHED PRODUCT. 
CHICAGO BRIDGE AND IRON COMPANY FABRICATES STEEL PLATES OUTSIDE OF
LOUISIANA AND SHIPS THEM INTO LOUISIANA.  IT CLAIMS THAT ITS TAX SHOULD
BE ON THE COMPONENTS OF THE PLATES.  SPERRY RAND CORPORATION, THROUGH
ITS SUBSIDIARY REMINGTON RAND, MANUFACTURES OFFICE FURNITURE WHICH IT
BRINGS INTO LOUISIANA AND RENTS TO CUSTOMERS.  IT CLAIMS ITS TAX IS ON
THE WOOD, METAL, LACQUERS, ETC., GOING INTO THE FURNITURE.  HUMBLE OIL
AND REFINING CO. HAS CHICAGO BRIDGE AND IRON CO. FABRICATE, OUTSIDE OF
LOUISIANA, CERTAIN FIELD ERECTED STRUCTURES FOR HUMBLE'S OIL REFINERY
AT BATON ROUGE AND IT CLAIMS THE TAX SHOULD BE ON THE COMPONENTS OF
THESE COMPLETED STRUCTURES.  AMERICAN CAN CO. MANUFACTURES CAN
MANUFACTURING MACHINERY OUTSIDE OF LOUISIANA WHICH IT SHIPS INTO
LOUISIANA FOR ITS USE AND IT CLAIMS THE TAX SHOULD BE ONLY ON THE
COMPONENTS OF THE MACHINES.  AND, FINALLY, ROSSON-RICHARDS PROCESSING
CO. WIRE WRAPS AND COATS IRON PIPE WHICH IT TRANSPORTS TO LOUISIANA
WHERE THE PIPE IS LAID INTO OIL AND GAS PIPELINES.  IT CLAIMS THE TAX
IS DUE ONLY ON THE COMPONENTS OF THE FINISHED PIPE.    THESE CLAIMS ARE
PREDICATED ON THE PROPOSITION THAT THE FINISHED PRODUCT ASSEMBLED
OUTSIDE LOUISIANA PAYS MORE TAX UPON ENTERING LOUISIANA FOR USE THAN A
LIKE FINISHED PRODUCT PAYS WHEN ASSEMBLED FROM PARTS WITHIN THAT STATE
AND USED BY THE ASSEMBLER THEREOF.  BUT THE TAX IS ON THE PRIVILEGE OF
USE AFTER COMMERCE IS AT AN END AND THE TEST IS WHETHER ALL PERSONS
SIMILARLY SITUATED ARE TREATED ALIKE.  ROYSTER GUANO CO. V. VIRGINIA,
253 U.S. 412, 415 (1920).  AND SO IT CANNOT BE SAID THAT EQUAL
PROTECTION IS DENIED BY A STATUTE WHICH OPERATES ALIKE ON ALL PERSONS
AND PROPERTY SIMILARLY SITUATED.  THE FALLACY OF THE COURT'S HOLDING IS
THAT IT IGNORES THE INCIDENCE OF THE TAX IN LOUISIANA'S TAX ACT.  THAT
INCIDENCE IS THE MOMENT THAT THE PRODUCT BECOMES A PART OF THE MASS OF
PROPERTY WITHIN THE STATE.  IT MATTERS NOT WHAT HAPPENS TO THE PROPERTY
SUBSEQUENTLY.  THE TAX ATTACHES TO THE PROPERTY IN ITS FORM AT THAT
SPECIFIC TIME.  THIS IS TRUE IN BOTH THE SALES AND THE USE TAX HERE. 
IT FOLLOWS THAT IF THE BARGE, STEEL PLATES, OFFICE FURNITURE, FIELD
ERECTED STRUCTURES, CAN MANUFACTURING MACHINERY, WIRE WRAPPED PIPES AND
OIL WELL SERVICING TRUCKS ARE SOLD IN LOUISIANA THE 2% SALES TAX IS
EXACTED ON THE COMPLETED ARTICLES JUST AS IT IS WHEN THEY ARE MOVED
INTO THE STATE WITHOUT SALE AND THE USE TAX OF 2% IS LEVIED.  ALL
PERSONS AND LIKE PROPERTY SIMILARLY SITUATED ARE THUS GIVEN IDENTICAL
TREATMENT.  LIKEWISE IF HALLIBURTON BROUGHT IN NUTS AND BOLTS AND PUT
THEM TOGETHER WITHIN LOUISIANA INTO A TRUCK IT WOULD PAY THE IDENTICAL
TAX A RESIDENT PAID IN A SIMILAR TRANSACTION.  AGAIN, IF A LOUISIANA
RESIDENT BOUGHT A COMPLETED TRUCK OUTSIDE HIS STATE AND BROUGHT IT INTO
THE STATE AS DID HALLIBURTON, HE WOULD PAY THE SAME TAX ON THE
PROPERTY.  THE RESULT OF LOUISIANA'S LAW IS SIMILAR TO THAT DESCRIBED
IN HENNEFORD V. SILAS MASON CO., 300 U.S. 577, 584 (1937):

"WHEN THE ACCOUNT IS MADE UP, THE STRANGER FROM AFAR IS SUBJECT TO NO
GREATER BURDENS AS A CONSEQUENCE OF OWNERSHIP THAN THE DWELLER WITHIN
THE GATES.  THE ONE PAYS UPON ONE ACTIVITY OR INCIDENT, AND THE OTHER
UPON ANOTHER, BUT THE SUM IS THE SAME WHEN THE RECKONING IS CLOSED. 
EQUALITY EXISTS WHEN THE CHATTEL SUBJECTED TO THE USE TAX IS BOUGHT IN
ANOTHER STATE AND THEN CARRIED INTO WASHINGTON.  IT EXISTS WHEN THE
IMPORTED CHATTEL IS SHIPPED FROM THE STATE OF ORIGIN UNDER AN ORDER
RECEIVED DIRECTLY FROM THE STATE OF DESTINATION.  IN EACH SITUATION THE
BURDEN BORNE BY THE OWNER IS BALANCED BY AN EQUAL BURDEN WHERE THE SALE
IS STRICTLY LOCAL." 

THE COURT, HOWEVER, WOULD LOOK BEYOND THE TAXABLE EVENT.  IT WOULD
REQUIRE THE STATE TO TRACE THE NUTS AND BOLTS, ETC., SOLD TO THE
RESIDENT AND TAX THEIR ULTIMATE FORM - A TRUCK - IF IT WISHED TO TAX
HALLIBURTON.  THIS, OF COURSE, IS AN IMPOSSIBLE BURDEN AND FROM A
PRACTICAL STANDPOINT WOULD NOT BE ENFORCEABLE.  IN ADDITION, THE COURT
CHANGES THE INCIDENCE OF THE TAX AS WELL AS THE PROPERTY TAXED.  NUTS
AND BOLTS ARE NOT TRUCKS.  THE INCIDENCE OF THE TAX ON THE FORMER WAS
WHEN THEY WERE NUTS AND BOLTS AND NOT WHEN THEY BECAME A TRUCK.  THEY
BECAME A PART OF THE MASS OF PROPERTY OF THE STATE ON THEIR SALE AS
NUTS AND BOLTS, NOT TRUCKS. 

I BELIEVE THAT THIS DECISION WILL DEPRIVE LOUISIANA OF MILLIONS OF
DOLLARS UNDER ITS SALES TAX.  (FN1)  EVERY SIZABLE BUSINESS CONCERN NOT
HAVING LOUISIANA FACILITIES TO MANUFACTURE ITS OWN REQUIREMENTS WILL
BUY RAW MATERIALS OUT OF STATE AND HAVE THEM FABRICATED OUTSIDE
LOUISIANA - JUST AS DO HALLIBURTON, JORDAN, HUMBLE, CHICAGO BRIDGE AND
THE OTHER AMICI - AND THEN BRING THE FINISHED PRODUCT INTO LOUISIANA
FOR USE.  INSTEAD OF PAYING A TAX ON THE GREATER VALUE OF THE FINISHED
PRODUCT BROUGHT INTO AND USED IN THE STATE THEY WILL, UNDER THE COURT'S
INTERPRETATION, PAY ONLY THE LESSER VALUE OF THE VARIOUS COMPONENTS
THAT WENT INTO THE FINISHED PRODUCT. 

AS FOR THE ISOLATED SALES, THE ACT SPECIFICALLY PROVIDES FOR A CREDIT
ON LOUISIANA USE TAXES OF ANY LIKE TAX EQUAL TO OR GREATER THAN THE
LOUISIANA TAX WHICH HAS BEEN PAID IN ANOTHER STATE.  LA. REV. STAT.
ANN. SEC. 47:305.  PROPERTY WITHIN LOUISIANA HAS ALREADY BEEN SUBJECTED
TO A SALES TAX AND SUBSEQUENT SALES ARE EXEMPTED.  THE CREDIT ALLOWED
ON THE USE TAX FOR TAXES PAID IN ANOTHER STATE ON ISOLATED SALES OF
PROPERTY BROUGHT INTO LOUISIANA EFFECTS THE SAME IDENTICAL RESULT.  AS
THE SUPREME COURT OF LOUISIANA NOTED THE "PROPERTY INVOLVED HEREIN HAS
NOT BORNE A SIMILAR TAX IN ANOTHER STATE," 241 LA., AT 92, 127 SO. 2D,
AT 511, AND THE TAXING AUTHORITIES HAVE UNEQUIVOCALLY REPRESENTED TO
THIS COURT THAT SUCH TAXES WOULD BE ALLOWED AS CREDITS IF CLAIMED AND
PROVEN.  I WOULD TAKE THE PROMISE OF THE STATE'S AUTHORITIES AT ITS
FACE VALUE.  (FN2) 

FOR THESE, AS WELL AS THE REASONS GIVEN IN THE OPINION OF THE SUPREME
COURT OF LOUISIANA, I WOULD AFFIRM. 

FN1  FOR A LIKE APPRAISAL SEE HENNEFORD V. SILAS MASON CO., SUPRA, AT
581:  "THE PLAN EMODIED IN THESE PROVISIONS IS NEITHER HIDDEN NOR
UNCERTAIN  ...  .  THE PRACTICAL EFFECT  ...  IS READILY PERCEIVED. 
ONE OF ITS EFFECTS MUST BE THAT RETAIL SELLERS IN WASHINGTON WILL BE
HELPED TO COMPETE UPON TERMS OF EQUALITY WITH RETAIL DEALERS IN OTHER
STATES WHO ARE EXEMPT FROM A SALES TAX OR ANY CORRESPONDING BURDEN. 
ANOTHER EFFECT, OR AT LEAST ANOTHER TENDENCY, MUST BE TO AVOID THE
LIKELIHOOD OF A DRAIN UPON THE REVENUES OF THE STATE, BUYERS BEING NO
LONGER TEMPTED TO PLACE THEIR ORDERS IN OTHER STATES IN THE EFFORT TO
ESCAPE PAYMENT OF THE TAX ON LOCAL SALES." 

FN2  MY BROTHER BRENNAN FINDS THAT THE TAX CREDIT ALLOWED BY LA. REV.
STAT. ANN. SEC.  47:305 WILL NOT AVOID INEQUALITY OF TREATMENT IN ALL
SITUATIONS.  I FIND NO CASES FROM LOUISIANA INTERPRETING THIS SECTION
OF THE ACT, BUT THE APPELLEE TAX COLLECTOR STATES IN HIS BRIEF THAT A
TAX CREDIT IS GIVEN "FOR ALL SIMILAR TAXES PAID TO ANOTHER STATE" IN
ORDER "TO INSURE PERFECT EQUALITY OF THE TAX BURDEN  ...  ."  IN VIEW
OF THE LOUISIANA SUPREME COURT'S DEMONSTRATED PRACTICE OF CONTRUING THE
PROVISIONS OF THE USE TAX SO AS TO AVOID UNREASONABLE AND
DISCRIMINATORY APPLICATIONS, FONTENOT V. S.E.W. OIL CORP., 232 LA.
1011, 95 SO. 2D 638 (1957), I CANNOT AGREE WITH MY BROTHER BRENNAN'S
ANTICIPATION THAT UNEQUAL TREATMENT WILL RESULT IN FUTURE APPLICATIONS
OF THE ACT.  CF. MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, 95-96
(1934). 
..END :




















BRADY V. MARYLAND 373 U.S. 83 


NO. 490.  ARGUED MARCH 18-19, 1963.  - DECIDED MAY 13, 1963.  - 226 MD.
422, 174 A.2D 167, AFFIRMED. 


IN SEPARATE TRIALS IN A MARYLAND COURT, WHERE THE JURY IS THE JUDGE OF
BOTH THE LAW AND THE FACTS BUT THE COURT PASSES ON THE ADMISSIBILITY OF
THE EVIDENCE, PETITIONER AND A COMPANION WERE CONVICTED OF FIRST-DEGREE
MURDER AND SENTENCED TO DEATH.  AT HIS TRIAL, PETITIONER ADMITTED
PARTICIPATING IN THE CRIME BUT CLAIMED THAT HIS COMPANION DID THE
ACTUAL KILLING.  IN HIS SUMMATION TO THE JURY, PETITIONER'S COUNSEL
CONCEDED THAT PETITIONER WAS GUILTY OF MURDER IN THE FIRST DEGREE AND
ASKED ONLY THAT THE JURY RETURN THAT VERDICT "WITHOUT CAPITAL
PUNISHMENT."  PRIOR TO THE TRIAL, PETITIONER'S COUNSEL HAD REQUESTED
THE PROSECUTION TO ALLOW HIM TO EXAMINE THE COMPANION'S EXTRAJUDICIAL
STATEMENTS.  SEVERAL OF THESE WERE SHOWN TO HIM; BUT ONE IN WHICH THE
COMPANION ADMITTED THE ACTUAL KILLING WAS WITHHELD BY THE PROSECUTION
AND DID NOT COME TO PETITIONER'S NOTICE UNTIL AFTER HE HAD BEEN TRIED,
CONVICTED AND SENTENCED AND AFTER HIS CONVICTION HAD BEEN AFFIRMED BY
THE MARYLAND COURT OF APPEALS.  IN A POST-CONVICTION PROCEEDING, THE
MARYLAND COURT OF APPEALS HELD THAT SUPPRESSION OF THE EVIDENCE BY THE
PROSECUTOR DENIED PETITIONER DUE PROCESS OF LAW, AND IT REMANDED THE
CASE FOR A NEW TRIAL OF THE QUESTION OF PUNISHMENT, BUT NOT THE
QUESTION OF GUILT, SINCE IT WAS OF THE OPINION THAT NOTHING IN THE
SUPPRESSED CONFESSION "COULD HAVE REDUCED PETITIONER'S OFFENSE BELOW
MURDER IN THE FIRST DEGREE."  HELD:  PETITIONER WAS NOT DENIED A
FEDERAL CONSTITUTIONAL RIGHT WHEN HIS NEW TRIAL WAS RESTRICTED TO THE
QUESTION OF PUNISHMENT; AND THE JUDGMENT IS AFFIRMED.  PP. 84-91. 

(A)  SUPPRESSION BY THE PROSECUTION OF EVIDENCE FAVORABLE TO AN
ACCUSED WHO HAS REQUESTED IT VIOLATES DUE PROCESS WHERE THE EVIDENCE IS
MATERIAL EITHER TO GUILT OR TO PUNISHMENT, IRRESPECTIVE OF THE GOOD
FAITH OR BAD FAITH OF THE PROSECUTION.  PP. 86-88. 

(B)  WHEN THE COURT OF APPEALS RESTRICTED PETITIONER'S NEW TRIAL TO
THE QUESTION OF PUNISHMENT, IT DID NOT DENY HIM DUE PROCESS OR EQUAL
PROTECTION OF THE LAWS UNDER THE FOURTEENTH AMENDMENT, SINCE THE
SUPPRESSED EVIDENCE WAS ADMISSIBLE ONLY ON THE ISSUE OF PUNISHMENT. 
PP. 88-91. 

BRADY V. MARYLAND. 

CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BRENNAN. 

PETITIONER AND A COMPANION, BOBLIT, WERE FOUND GUILTY OF MURDER IN
THE FIRST DEGREE AND WERE SENTENCED TO DEATH, THEIR CONVICTIONS BEING
AFFIRMED BY THE COURT OF APPEALS OF MARYLAND.  220 MD. 454, 154 A.2D
434.  THEIR TRIALS WERE SEPARATE, PETITIONER BEING TRIED FIRST.  AT HIS
TRIAL BRADY TOOK THE STAND AND ADMITTED HIS PARTICIPATION IN THE CRIME,
BUT HE CLAIMED THAT BOBLIT DID THE ACTUAL KILLING.  AND, IN HIS
SUMMATION TO THE JURY, BRADY'S COUNSEL CONCEDED THAT BRADY WAS GUILTY
OF MURDER IN THE FIRST DEGREE, ASKING ONLY THAT THE JURY RETURN THAT
VERDICT "WITHOUT CAPITAL PUNISHMENT."  PRIOR TO THE TRIAL PETITIONER'S
COUNSEL HAD REQUESTED THE PROSECUTION TO ALLOW HIM TO EXAMINE BOBLIT'S
EXTRAJUDICIAL STATEMENTS.  SEVERAL OF THOSE STATEMENTS WERE SHOWN TO
HIM; BUT ONE DATED JULY 9, 1958, IN WHICH BOBLIT ADMITTED THE ACTUAL
HOMICIDE, WAS WITHHELD BY THE PROSECUTION AND DID NOT COME TO
PETITIONER'S NOTICE UNTIL AFTER HE HAD BEEN TRIED, CONVICTED, AND
SENTENCED, AND AFTER HIS CONVICTION HAD BEEN AFFIRMED. 

PETITIONER MOVED THE TRIAL COURT FOR A NEW TRIAL BASED ON THE NEWLY
DISCOVERED EVIDENCE THAT HAD BEEN SUPPRESSED BY THE PROSECUTION. 
PETITIONER'S APPEAL FROM A DENIAL OF THAT MOTION WAS DISMISSED BY THE
COURT OF APPEALS WITHOUT PREJUDICE TO RELIEF UNDER THE MARYLAND POST
CONVICTION PROCEDURE ACT.  222 MD. 442, 160 A.2D 912.  THE PETITION FOR
POST-CONVICTION RELIEF WAS DISMISSED BY THE TRIAL COURT; AND ON APPEAL
THE COURT OF APPEALS HELD THAT SUPPRESSION OF THE EVIDENCE BY THE
PROSECUTION DENIED PETITIONER DUE PROCESS OF LAW AND REMANDED THE CASE
FOR A RETRIAL OF THE QUESTION OF PUNISHMENT, NOT THE QUESTION OF
GUILT.  226 MD. 422, 174 A.2D 167.  THE CASE IS HERE ON CERTIORARI, 371
U.S. 812.  (FN1) 

THE CRIME IN QUESTION WAS MURDER COMMITTED IN THE PERPETRATION OF A
ROBBERY.  PUNISHMENT FOR THAT CRIME IN MARYLAND IS LIFE IMPRISONMENT OR
DEATH, THE JURY BEING EMPOWERED TO RESTRICT THE PUNISHMENT TO LIFE BY
ADDITION OF THE WORDS "WITHOUT CAPITAL PUNISHMENT."  3 MD.  ANN. CODE,
1957, ART. 27, SEC. 413.  IN MARYLAND, BY REASON OF THE STATE
CONSTITUTION, THE JURY IN A CRIMINAL CASE ARE "THE JUDGES OF LAW, AS
WELL AS OF FACT."  ART. XV, SEC. 5.  THE QUESTION PRESENTED IS WHETHER
PETITIONER WAS DENIED A FEDERAL RIGHT WHEN THE COURT OF APPEALS
RESTRICTED THE NEW TRIAL TO THE QUESTION OF PUNISHMENT. 

WE AGREE WITH THE COURT OF APPEALS THAT SUPPRESSION OF THIS
CONFESSION WAS A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE COURT OF APPEALS RELIED IN THE MAIN ON TWO DECISIONS
FROM THE THIRD CIRCUIT COURT OF APPEALS - UNITED STATES EX REL.
ALMEIDA V. BALDI, 195 F.2D 815, AND UNITED STATES EX REL. THOMPSON V.
DYE, 221 F.2D 763 - WHICH, WE AGREE, STATE THE CORRECT CONSTITUTIONAL
RULE. 

THIS RULING IS AN EXTENSION OF MOONEY V. HOLOHAN, 294 U.S. 103, 112,
WHERE THE COURT RULED ON WHAT NONDISCLOSURE BY A PROSECUTOR VIOLATES
DUE PROCESS: 

"IT IS A REQUIREMENT THAT CANNOT BE DEEMED TO BE SATISFIED BY MERE
NOTICE AND HEARING IF A STATE HAS CONTRIVED A CONVICTION THROUGH THE
PRETENSE OF A TRIAL WHICH IN TRUTH IS BUT USED AS A MEANS OF DEPRIVING
A DEFENDANT OF LIBERTY THROUGH A DELIBERATE DECEPTION OF COURT AND JURY
BY THE PRESENTATION OF TESTIMONY KNOWN TO BE PERJURED.  SUCH A
CONTRIVANCE BY A STATE TO PROCURE THE CONVICTION AND IMPRISONMENT OF A
DEFENDANT IS AS INCONSISTENT WITH THE RUDIMENTARY DEMANDS OF JUSTICE AS
IS THE OBTAINING OF A LIKE RESULT BY INTIMIDATION." 

IN PYLE V. KANSAS, 317 U.S. 213, 215-216, WE PHRASED THE RULE IN
BROADER TERMS: 

"PETITIONER'S PAPERS ARE INEXPERTLY DRAWN, BUT THEY DO SET FORTH
ALLEGATIONS THAT HIS IMPRISONMENT RESULTED FROM PERJURED TESTIMONY,
KNOWINGLY USED BY THE STATE AUTHORITIES TO OBTAIN HIS CONVICTION, AND
FROM THE DELIBERATE SUPPRESSION BY THOSE SAME AUTHORITIES OF EVIDENCE
FAVORABLE TO HIM.  THESE ALLEGATIONS SUFFICIENTLY CHARGE A DEPRIVATION
OF RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION, AND, IF PROVEN, WOULD
ENTITLE PETITIONER TO RELEASE FROM HIS PRESENT CUSTODY.  MOONEY V.
HOLOHAN, 294 U.S. 103." 

THE THIRD CIRCUIT IN THE BALDI CASE CONSTRUED THAT STATEMENT IN PYLE
V. KANSAS TO MEAN THAT THE "SUPPRESSION OF EVIDENCE FAVORABLE" TO THE
ACCUSED WAS ITSELF SUFFICIENT TO AMOUNT TO A DENIAL OF DUE PROCESS. 
195 F.2D, AT 820.  IN NAPUE V. ILLINOIS, 360 U.S. 264, 269, WE EXTENDED
THE TEST FORMULATED IN MOONEY V. HOLOHAN WHEN WE SAID:  "THE SAME
RESULT OBTAINS WHEN THE STATE, ALTHOUGH NOT SOLICITING FALSE EVIDENCE,
ALLOWS IT TO GO UNCORRECTED WHEN IT APPEARS."  AND SEE ALCORTA V.
TEXAS, 355 U.S. 28; WILDE V. WYOMING, 362 U.S. 607.  CF. DURLEY V.
MAYO, 351 U.S. 277, 285 (DISSENTING OPINION). 

WE NOW HOLD THAT THE SUPPRESSION BY THE PROSECUTION OF EVIDENCE
FAVORABLE TO AN ACCUSED UPON REQUEST VIOLATES DUE PROCESS WHERE THE
EVIDENCE IS MATERIAL EITHER TO GUILT OR TO PUNISHMENT, IRRESPECTIVE OF
THE GOOD FAITH OR BAD FAITH OF THE PROSECUTION. 

THE PRINCIPLE OF MOONEY V. HOLOHAN IS NOT PUNISHMENT OF SOCIETY FOR
MISDEEDS OF A PROSECUTOR BUT AVOIDANCE OF AN UNFAIR TRIAL TO THE
ACCUSED.  SOCIETY WINS NOT ONLY WHEN THE GUILTY ARE CONVICTED BUT WHEN
CRIMINAL TRIALS ARE FAIR; OUR SYSTEM OF THE ADMINISTRATION OF JUSTICE
SUFFERS WHEN ANY ACCUSED IS TREATED UNFAIRLY.  AN INSCRIPTION ON THE
WALLS OF THE DEPARTMENT OF JUSTICE STATES THE PROPOSITION CANDIDLY FOR
THE FEDERAL DOMAIN:  "THE UNITED STATES WINS ITS POINT WHENEVER JUSTICE
IS DONE ITS CITIZENS IN THE COURTS."  (FN2)  A PROSECUTION THAT
WITHHOLDS EVIDENCE ON DEMAND OF AN ACCUSED WHICH, IF MADE AVAILABLE,
WOULD TEND TO EXCULPATE HIM OR REDUCE THE PENALTY HELPS SHAPE A TRIAL
THAT BEARS HEAVILY ON THE DEFENDANT.  THAT CASTS THE PROSECUTOR IN THE
ROLE OF AN ARCHITECT OF A PROCEEDING THAT DOES NOT COMPORT WITH
STANDARDS OF JUSTICE, EVEN THOUGH, AS IN THE PRESENT CASE, HIS ACTION
IS NOT "THE RESULT OF GUILE," TO USE THE WORDS OF THE COURT OF
APPEALS.  226 MD., AT 427, 174 A.2D, AT 169. 

THE QUESTION REMAINS WHETHER PETITIONER WAS DENIED A CONSTITUTIONAL
RIGHT WHEN THE COURT OF APPEALS RESTRICTED HIS NEW TRIAL TO THE
QUESTION OF PUNISHMENT.  IN JUSTIFICATION OF THAT RULING THE COURT OF
APPEALS STATED: 

"THERE IS CONSIDERABLE DOUBT AS TO HOW MUCH GOOD BOBLIT'S UNDISCLOSED
CONFESSION WOULD HAVE DONE BRADY IF IT HAD BEEN BEFORE THE JURY.  IT
CLEARLY IMPLICATED BRADY AS BEING THE ONE WHO WANTED TO STRANGLE THE
VICTIM, BROOKS.  BOBLIT, ACCORDING TO THIS STATEMENT, ALSO FAVORED
KILLING HIM, BUT HE WANTED TO DO IT BY SHOOTING.  WE CANNOT PUT
OURSELVES IN THE PLACE OF THE JURY AND ASSUME WHAT THEIR VIEWS WOULD
HAVE BEEN AS TO WHETHER IT DID OR DID NOT MATTER WHETHER IT WAS BRADY'S
HANDS OR BOBLIT'S HANDS THAT TWISTED THE SHIRT ABOUT THE VICTIM'S NECK
...  .  IT WOULD BE 'TOO DOGMATIC' FOR US TO SAY THAT THE JURY WOULD
NOT HAVE ATTACHED ANY SIGNIFICANCE TO THIS EVIDENCE IN CONSIDERING THE
PUNISHMENT OF THE DEFENDANT BRADY. 

"NOT WITHOUT SOME DOUBT, WE CONCLUDE THAT THE WITHHOLDING OF THIS
PARTICULAR CONFESSION OF BOBLIT'S WAS PREJUDICIAL TO THE DEFENDANT
BRADY  ...  . 

"THE APPELLANT'S SOLE CLAIM OF PREJUDICE GOES TO THE PUNISHMENT
IMPOSED.  IF BOBLIT'S WITHHELD CONFESSION HAD BEEN BEFORE THE JURY,
NOTHING IN IT COULD HAVE REDUCED THE APPELLANT BRADY'S OFFENSE BELOW
MURDER IN THE FIRST DEGREE.  WE, THEREFORE, SEE NO OCCASION TO RETRY
THAT ISSUE."  226 MD., AT 429-430, 174 A.2D, AT 171. 

IF THIS WERE A JURISDICTION WHERE THE JURY WAS NOT THE JUDGE OF THE
LAW, A DIFFERENT QUESTION WOULD BE PRESENTED.  BUT SINCE IT IS, HOW CAN
THE MARYLAND COURT OF APPEALS STATE THAT NOTHING IN THE SUPPRESSED
CONFESSION COULD HAVE REDUCED PETITIONER'S OFFENSE "BELOW MURDER IN THE
FIRST DEGREE"?  IF, AS A MATTER OF MARYLAND LAW, JURIES IN CRIMINAL
CASES COULD DETERMINE THE ADMISSIBILITY OF SUCH EVIDENCE ON THE ISSUE
OF INNOCENCE OR GUILT, THE QUESTION WOULD SEEM TO BE FORECLOSED. 

BUT MARYLAND'S CONSTITUTIONAL PROVISION MAKING THE JURY IN CRIMINAL
CASES "THE JUDGES OF LAW" DOES NOT MEAN PRECISELY WHAT IT SEEMS TO
SAY.  (FN3)  THE PRESENT STATUS OF THAT PROVISION WAS REVIEWED RECENTLY
IN GILES V. STATE, 229 MD. 370, 183 A.2D 359, APPEAL DISMISSED, 372
U.S. 767, WHERE THE SEVERAL EXCEPTIONS, ADDED BY STATUTE OR CARVED OUT
BY JUDICIAL CONSTRUCTION, ARE REVIEWED.  ONE OF THOSE EXCEPTIONS,
MATERIAL HERE, IS THAT "TRIAL COURTS HAVE ALWAYS PASSED AND STILL PASS
UPON THE ADMISSIBILITY OF EVIDENCE THE JURY MAY CONSIDER ON THE ISSUE
OF THE INNOCENCE OR GUILT OF THE ACCUSED."  229 MD., AT 383, 183 A.2D,
AT 365.  THE CASES CITED MAKE UP A LONG LINE GOING BACK NEARLY
CENTURY.  WHEELER V. STATE, 42 MD. 563, 570, STATED THAT INSTRUCTIONS
TO THE JURY WERE ADVISORY ONLY, "EXCEPT IN REGARD TO QUESTIONS AS TO
WHAT SHALL BE CONSIDERED AS EVIDENCE."  AND THE COURT "HAVING SUCH
RIGHT, IT FOLLOWS OF COURSE, THAT IT ALSO HAS THE RIGHT TO PREVENT
COUNSEL FROM ARGUING AGAINST SUCH AN INSTRUCTION."  BELL V. STATE, 57
MD. 108, 120.  AND SEE BEARD V. STATE, 71 MD. 275, 280, 17 A. 1044,
1045; DICK V. STATE, 107 MD. 11, 21, 68 A. 286, 290.  CF. VOGEL V.
STATE, 163 MD. 267, 162 A. 705. 

WE USUALLY WALK ON TREACHEROUS GROUND WHEN WE EXPLORE STATE LAW,
(FN4) FOR STATE COURTS, STATE AGENCIES, AND STATE LEGISLATURES ARE ITS
FINAL EXPOSITORS UNDER OUR FEDERAL REGIME.  BUT, AS WE READ THE
MARYLAND DECISIONS, IT IS THE COURT, NOT THE JURY, THAT PASSES ON THE
"ADMISSIBILITY OF EVIDENCE" PERTINENT TO "THE ISSUE OF THE INNOCENCE OR
GUILT OF THE ACCUSED."  GILES V. STATE, SUPRA.  IN THE PRESENT CASE A
UNANIMOUS COURT OF APPEALS HAS SAID THAT NOTHING IN THE SUPPRESSED
CONFESSION "COULD HAVE REDUCED THE APPELLANT BRADY'S OFFENSE BELOW
MURDER IN THE FIRST DEGREE."  WE READ THAT STATEMENT AS A RULING ON THE
ADMISSIBILITY OF THE CONFESSION ON THE ISSUE OF INNOCENCE OR GUILT.  A
SPORTING THEORY OF JUSTICE MIGHT ASSUME THAT IF THE SUPPRESSED
CONFESSION HAD BEEN USED AT THE FIRST TRIAL, THE JUDGE'S RULING THAT IT
WAS NOT ADMISSIBLE ON THE ISSUE OF INNOCENCE OR GUILT MIGHT HAVE BEEN
FLOUTED BY THE JURY JUST AS MIGHT HAVE BEEN DONE IF THE COURT HAD FIRST
ADMITTED A CONFESSION AND THEN STRICKEN IT FROM THE RECORD.  (FN5)  BUT
WE CANNOT RAISE THAT TRIAL STRATEGY TO THE DIGNITY OF A CONSTITUTIONAL
RIGHT AND SAY THAT THE DEPRIVAL OF THIS DEFENDANT OF THAT SPORTING
CHANCE THROUGH THE USE OF A BIFURCATED TRIAL (CF. WILLIAMS V. NEW YORK,
337 U.S. 241) DENIES HIM DUE PROCESS OR VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  AFFIRMED. 

FN1  NEITHER PARTY SUGGESTS THAT THE DECISION BELOW IS NOT A "FINAL
JUDGMENT" WITHIN THE MEANING OF 28 U.S.C. SEC. 1257(3), AND NO ATTACK
ON THE REVIEWABILITY OF THE LOWER COURT'S JUDGMENT COULD BE
SUCCESSFULLY MAINTAINED.  FOR THE GENERAL RULE THAT "FINAL JUDGMENT IN
A CRIMINAL CASE MEANS SENTENCE.  THE SENTENCE IS THE JUDGMENT" (BERMAN
V. UNITED STATES, 302 U.S. 211, 212) CANNOT BE APPLIED HERE.  IF IN
FACT THE FOURTEENTH AMENDMENT ENTITLES PETITIONER TO A NEW TRIAL ON THE
ISSUE OF GUILT AS WELL AS PUNISHMENT THE RULING BELOW HAS SERIOUSLY
PREJUDICED HIM.  IT IS THE RIGHT TO A TRIAL ON THE ISSUE OF GUILT "THAT
PRESENTS A SERIOUS AND UNSETTLED QUESTION" (COHEN V. BENEFICIAL LOAN
CORP., 337 U.S. 541, 547) THAT "IS FUNDAMENTAL TO THE FURTHER CONDUCT
OF THE CASE" (UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373,
377).  THIS QUESTION IS "INDEPENDENT OF, AND UNAFFECTED BY" (RADIO
STATION WOW V. JOHNSON, 326 U.S. 120, 126) WHAT MAY TRANSPIRE IN A
TRIAL AT WHICH PETITIONER CAN RECEIVE ONLY A LIFE IMPRISONMENT OR DEATH
SENTENCE.  IT CANNOT BE MOOTED BY SUCH A PROCEEDING.  SEE LARGENT V.
TEXAS, 318 U.S. 418, 421-422.  CF. LOCAL NO. 438 V. CURRY, 371 U.S.
542, 549. 

FN2  JUDGE SIMON E. SOBELOFF WHEN SOLICITOR GENERAL PUT THE IDEA AS
FOLLOWS IN AN ADDRESS BEFORE THE JUDICIAL CONFERENCE OF THE FOURTH
CIRCUIT ON JUNE 29, 1954: 

"THE SOLICITOR GENERAL IS NOT A NEUTRAL, HE IS AN ADVOCATE; BUT AN
ADVOCATE FOR A CLIENT WHOSE BUSINESS IS NOT MERELY TO PREVAIL IN THE
INSTANT CASE.  MY CLIENT'S CHIEF BUSINESS IS NOT TO ACHIEVE VICTORY BUT
TO ESTABLISH JUSTICE.  WE ARE CONSTANTLY REMINDED OF THE NOW CLASSIC
WORDS PENNED BY ONE OF MY ILLUSTRIOUS PREDECESSORS, FREDERICK WILLIAM
LEHMANN, THAT THE GOVERNMENT WINS ITS POINT WHEN JUSTICE IS DONE IN ITS
COURTS." 

FN3  SEE DENNIS, MARYLAND'S ANTIQUE CONSTITUTIONAL THORN, 92 U. OF
PA. L. REV. 34, 39, 43; PRESCOTT, JURIES AS JUDGES OF THE LAW:  SHOULD
THE PRACTICE BE CONTINUED, 60 MD. ST. BAR ASSN. REPT. 246, 253-254. 

FN4  FOR ONE UNHAPPY INCIDENT OF RECENT VINTAGE SEE OKLAHOMA PACKING
CO. V. OKLAHOMA GAS & ELECTRIC CO., 309 U.S. 4, THAT REPLACED AN
EARLIER OPINION IN THE SAME CASE, 309 U.S. 703. 

FN5  "IN THE MATTER OF CONFESSIONS A HYBRID SITUATION EXISTS.  IT IS
THE DUTY OF THE COURT TO DETERMINE FROM THE PROOF, USUALLY TAKEN OUT OF
THE PRESENCE OF THE JURY, IF THEY WERE FREELY AND VOLUNTARILY MADE,
ETC., AND ADMISSIBLE.  IF ADMITTED, THE JURY IS ENTITLED TO HEAR AND
CONSIDER PROOF OF THE CIRCUMSTANCES SURROUNDING THEIR OBTENTION, THE
BETTER TO DETERMINE THEIR WEIGHT AND SUFFICIENCY.  THE FACT THAT THE
COURT ADMITS THEM CLOTHES THEM WITH NO PRESUMPTION FOR THE JURY'S
PURPOSES THAT THEY ARE EITHER TRUE OR WERE FREELY AND VOLUNTARILY
MADE.  HOWEVER, AFTER A CONFESSION HAS BEEN ADMITTED AND READ TO THE
JURY THE JUDGE MAY CHANGE HIS MIND AND STRIKE IT OUT OF THE RECORD. 
DOES HE STRIKE IT OUT OF THE JURY'S MIND?"  DENNIS, MARYLAND'S ANTIQUE
CONSTITUTIONAL THORN, 92 U. OF PA. L. REV. 34, 39.  SEE ALSO BELL V.
STATE, SUPRA, AT 120; VOGEL V. STATE, 163 MD., AT 272, 162 A., AT 706
707.    SEPARATE OPINION OF MR. JUSTICE WHITE. 

1.  THE MARYLAND COURT OF APPEALS DECLARED, "THE SUPPRESSION OR
WITHHOLDING BY THE STATE OF MATERIAL EVIDENCE EXCULPATORY TO AN ACCUSED
IS A VIOLATION OF DUE PROCESS" WITHOUT CITING THE UNITED STATES
CONSTITUTION OR THE MARYLAND CONSTITUTION WHICH ALSO HAS A DUE PROCESS
CLAUSE.*  WE THEREFORE CANNOT BE SURE WHICH CONSTITUTION WAS INVOKED BY
THE COURT BELOW AND THUS WHETHER THE STATE, THE ONLY PARTY AGGRIEVED BY
THIS PORTION OF THE JUDGMENT, COULD EVEN BRING THE ISSUE HERE IF IT
DESIRED TO DO SO.  SEE NEW YORK CITY V. CENTRAL SAVINGS BANK, 306 U.S.
661; MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551.  BUT IN ANY EVENT,
THERE IS NO CROSS-PETITION BY THE STATE, NOR HAS IT CHALLENGED THE
CORRECTNESS OF THE RULING BELOW THAT A NEW TRIAL ON PUNISHMENT WAS
CALLED FOR BY THE REQUIREMENTS OF DUE PROCESS.  IN MY VIEW, THEREFORE,
THE COURT SHOULD NOT REACH THE DUE PROCESS QUESTION WHICH IT DECIDES. 
IT CERTAINLY IS NOT THE CASE, AS IT MAY BE SUGGESTED, THAT WITHOUT IT
WE WOULD HAVE ONLY A STATE LAW QUESTION, FOR ASSUMING THE COURT BELOW
WAS CORRECT IN FINDING A VIOLATION OF PETITIONER'S RIGHTS IN THE
SUPPRESSION OF EVIDENCE, THE FEDERAL QUESTION HE WANTS DECIDED HERE
STILL REMAINS, NAMELY, WHETHER DENYING HIM A NEW TRIAL ON GUILT AS WELL
AS PUNISHMENT DEPRIVES HIM OF EQUAL PROTECTION.  THERE IS THUS A
FEDERAL QUESTION TO DEAL WITH IN THIS COURT, CF. BELL V. HOOD, 327 U.S.
678, WHOLLY ASIDE FROM THE DUE PROCESS QUESTION INVOLVING THE
SUPPRESSION OF EVIDENCE.  THE MAJORITY OPINION MAKES THIS UNMISTAKABLY
CLEAR.  BEFORE DEALING WITH THE DUE PROCESS ISSUE IT SAYS, "THE
QUESTION PRESENTED IS WHETHER PETITIONER WAS DENIED A FEDERAL RIGHT
WHEN THE COURT OF APPEALS RESTRICTED THE NEW TRIAL TO THE QUESTION OF
PUNISHMENT."  AFTER DISCUSSING AT SOME LENGTH AND DISPOSING OF THE
SUPPRESSION MATTER IN FEDERAL CONSTITUTIONAL TERMS IT SAYS THE QUESTION
STILL TO BE DECIDED IS THE SAME AS IT WAS BEFORE:  "THE QUESTION
REMAINS WHETHER PETITIONER WAS DENIED A CONSTITUTIONAL RIGHT WHEN THE
COURT OF APPEALS RESTRICTED HIS NEW TRIAL TO THE QUESTION OF
PUNISHMENT." 

*MD. CONST., ART. 23; HOME UTILITIES CO., INC., V. REVERE COPPER &
BRASS, INC., 209 MD. 610, 122 A.2D 109; RAYMOND V. STATE, 192 MD. 602,
65 A.2D 285; COUNTY COMM'RS OF ANNE ARUNDEL COUNTY V. ENGLISH, 182 MD.
514, 35 A.2D 135; OURSLER V. TAWES, 178 MD. 471, 13 A.2D 763. 

THE RESULT, OF COURSE, IS THAT THE DUE PROCESS DISCUSSION BY THE
COURT IS WHOLLY ADVISORY. 

2.  IN ANY EVENT THE COURT'S DUE PROCESS ADVICE GOES SUBSTANTIALLY
BEYOND THE HOLDING BELOW.  I WOULD EMPLOY MORE CONFINING LANGUAGE AND
WOULD NOT CAST IN CONSTITUTIONAL FORM A BROAD RULE OF CRIMINAL
DISCOVERY.  INSTEAD, I WOULD LEAVE THIS TASK, AT LEAST FOR NOW, TO THE
RULEMAKING OR LEGISLATIVE PROCESS AFTER FULL CONSIDERATION BY
LEGISLATORS, BENCH, AND BAR. 

3.  I CONCUR IN THE COURT'S DISPOSITION OF PETITIONER'S EQUAL
PROTECTION ARGUMENT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

I THINK THIS CASE PRESENTS ONLY A SINGLE FEDERAL QUESTION:  DID THE
ORDER OF THE MARYLAND COURT OF APPEALS GRANTING A NEW TRIAL, LIMITED TO
THE ISSUE OF PUNISHMENT, VIOLATE PETITIONER'S FOURTEENTH AMENDMENT
RIGHT TO EQUAL PROTECTION?  (FN1)  IN MY OPINION AN AFFIRMATIVE ANSWER
WOULD BE REQUIRED IF THE BOBLIT STATEMENT WOULD HAVE BEEN ADMISSIBLE ON
THE ISSUE OF GUILT AT PETITIONER'S ORIGINAL TRIAL.  THIS INDEED SEEMS
TO BE THE CLEAR IMPLICATION OF THIS COURT'S OPINION. 

THE COURT, HOWEVER, HOLDS THAT THE FOURTEENTH AMENDMENT WAS NOT
INFRINGED BECAUSE IT CONSIDERS THE COURT OF APPEALS' OPINION, AND THE
OTHER MARYLAND CASES DEALING WITH MARYLAND'S CONSTITUTIONAL PROVISION
MAKING JURIES IN CRIMINAL CASES "THE JUDGES OF LAW, AS WELL AS OF
FACT," AS ESTABLISHING THAT THE BOBLIT STATEMENT WOULD NOT HAVE BEEN
ADMISSIBLE AT THE ORIGINAL TRIAL ON THE ISSUE OF PETITIONER'S GUILT. 

BUT I CANNOT READ THE COURT OF APPEALS' OPINION WITH ANY SUCH
ASSURANCE.  THAT OPINION CAN AS EASILY, AND PERHAPS MORE EASILY, BE
READ AS INDICATING THAT THE NEW TRIAL LIMITATION FOLLOWED FROM THE
COURT OF APPEALS' CONCEPT OF ITS POWER, UNDER SEC. 645G OF THE MARYLAND
POST CONVICTION PROCEDURE ACT, MD. CODE, ART. 27 (1960 CUM. SUPP.) AND
RULE 870 OF THE MARYLAND RULES OF PROCEDURE, TO FASHION APPROPRIATE
RELIEF MEETING THE PECULIAR CIRCUMSTANCES OF THIS CASE, (FN2) RATHER
THAN FROM THE VIEW THAT THE BOBLIT STATEMENT WOULD HAVE BEEN RELEVANT
AT THE ORIGINAL TRIAL ONLY ON THE ISSUE OF PUNISHMENT.  226 MD., AT
430, 174 A.2D, AT 171.  THIS INTERPRETATION IS INDEED FORTIFIED BY THE
COURT OF APPEALS' EARLIER GENERAL DISCUSSION AS TO THE ADMISSIBILITY OF
THIRD-PARTY CONFESSIONS, WHICH FALLS SHORT OF SAYING ANYTHING THAT IS
DISPOSITIVE OF THE CRUCIAL ISSUE HERE.  226 MD., AT 427-429, 174 A.2D,
AT 170.  (FN3) 

NOR DO I FIND ANYTHING IN ANY OF THE OTHER MARYLAND CASES CITED BY
THE COURT (ANTE, P. 89) WHICH BEARS ON THE ADMISSIBILITY VEL NON OF THE
BOBLIT STATEMENT ON THE ISSUE OF GUILT.  NONE OF THESE CASES SUGGESTS
ANYTHING MORE RELEVANT HERE THAN THAT A JURY MAY NOT "OVERRULE" THE
TRIAL COURT ON QUESTIONS RELATING TO THE ADMISSIBILITY OF EVIDENCE. 
INDEED THEY ARE BY NO MEANS CLEAR AS TO WHAT HAPPENS IF THE JURY IN
FACT UNDERTAKES TO DO SO.  IN THIS VERY CASE, FOR EXAMPLE, THE TRIAL
COURT CHARGED THAT "IN THE FINAL ANALYSIS THE JURY ARE THE JUDGES OF
BOTH THE LAW AND THE FACTS, AND THE VERDICT IN THIS CASE IS ENTIRELY
THE JURY'S RESPONSIBILITY." 

MOREOVER, UNCERTAINTY ON THIS SCORE IS COMPOUNDED BY THE STATE'S
ACKNOWLEDGMENT AT THE ORAL ARGUMENT HERE THAT THE WITHHELD BOBLIT
STATEMENT WOULD HAVE BEEN ADMISSIBLE AT THE TRIAL ON THE ISSUE OF
GUILT.  (FN4) 

IN THIS STATE OF UNCERTAINTY AS TO THE PROPER ANSWER TO THE CRITICAL
UNDERLYING ISSUE OF STATE LAW, AND IN VIEW OF THE FACT THAT THE COURT
OF APPEALS DID NOT IN TERMS ADDRESS ITSELF TO THE EQUAL PROTECTION
QUESTION, I DO NOT SEE HOW WE CAN PROPERLY RESOLVE THIS CASE AT THIS
JUNCTURE.  I THINK THE APPROPRIATE COURSE IS TO VACATE THE JUDGMENT OF
THE STATE COURT OF APPEALS AND REMAND THE CASE TO THAT COURT FOR
FURTHER CONSIDERATION IN LIGHT OF THE GOVERNING CONSTITUTIONAL
PRINCIPLE STATED AT THE OUTSET OF THIS OPINION.  CF. MINNESOTA V.
NATIONAL TEA CO., 309 U.S. 551. 

FN1  I AGREE WITH MY BROTHER WHITE THAT THERE IS NO NECESSITY FOR
DECIDING IN THIS CASE THE BROAD DUE PROCESS QUESTIONS WITH WHICH THE
COURT DEALS AT PP. 86-88 OF ITS OPINION. 

FN2  SECTION 645G PROVIDES IN PART:  "IF THE COURT FINDS IN FAVOR OF
THE PETITIONER, IT SHALL ENTER AN APPROPRIATE ORDER WITH RESPECT TO THE
JUDGMENT OR SENTENCE IN THE FORMER PROCEEDINGS, AND ANY SUPPLEMENTARY
ORDERS AS TO REARRAIGNMENT, RETRIAL, CUSTODY, BAIL, DISCHARGE,
CORRECTION OF SENTENCE, OR OTHER MATTERS THAT MAY BE NECESSARY AND
PROPER."  RULE 870 PROVIDES THAT THE COURT OF APPEALS "WILL EITHER
AFFIRM OR REVERSE THE JUDGMENT FROM WHICH THE APPEAL WAS TAKEN, OR
DIRECT THE MANNER IN WHICH IT SHALL BE MODIFIED, CHANGED OR AMENDED." 

FN3  IT IS NOTEWORTHY THAT THE COURT OF APPEALS DID NOT INDICATE THAT
IT WAS LIMITING IN ANY WAY THE AUTHORITY OF DAY V. STATE, 196 MD. 384,
76 A.2D 729.  IN THAT CASE TWO DEFENDANTS WERE JOINTLY TRIED AND
CONVICTED OF FELONY MURDER.  EACH ADMITTED PARTICIPATING IN THE FELONY
BUT ACCUSED THE OTHER OF THE HOMICIDE.  ON APPEAL THE DEFENDANTS
ATTACKED THE TRIAL COURT'S DENIAL OF A SEVERANCE, AND THE STATE ARGUED
THAT NEITHER DEFENDANT WAS HARMED BY THE STATEMENTS PUT IN EVIDENCE AT
THE JOINT TRIAL BECAUSE ADMISSION OF THE FELONY AMOUNTED TO ADMISSION
OF GUILT OF FELONY MURDER.  NEVERTHELESS THE COURT OF APPEALS FOUND AN
ABUSE OF DISCRETION AND ORDERED SEPARATE NEW TRIALS ON ALL ISSUES. 

FN4  IN RESPONSE TO A QUESTION FROM THE BENCH AS TO WHETHER BOBLIT'S
STATEMENT, HAD IT BEEN OFFERED AT PETITIONER'S ORIGINAL TRIAL, WOULD
HAVE BEEN ADMISSIBLE FOR ALL PURPOSES, COUNSEL FOR THE STATE, AFTER
SOME COLLOQUY, STATED:  "IT WOULD HAVE BEEN, YES." 
..END :











WILLNER V. COMMITTEE ON CHARACTER AND FITNESS, APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT 373 U.S. 96 


NO. 140.  ARGUED FEBRUARY 21, 1963.  - DECIDED MAY 13, 1963.  - 11
N.Y.2D 866, 182 N.E.2D 288, REVERSED. 


AFTER PASSING THE NEW YORK BAR EXAMINATIONS IN 1936, PETITIONER WAS
DENIED ADMISSION TO THE BAR BECAUSE OF AN ADVERSE REPORT BY A COMMITTEE
OF LAWYERS APPOINTED BY THE APPELLATE DIVISION TO INVESTIGATE AND
REPORT ON THE CHARACTER AND FITNESS OF APPLICANTS.  IN THE LATEST OF
SEVERAL EFFORTS TO GAIN ADMISSION, HE PETITIONED THE APPELLATE DIVISION
FOR LEAVE TO FILE A DE NOVO APPLICATION, AND HE ALLEGED, INTER ALIA,
THAT, IN CONNECTION WITH HEARINGS BEFORE THE COMMITTEE ON HIS 1937
APPLICATION, HE WAS SHOWN A LETTER FROM A NEW YORK ATTORNEY CONTAINING
VARIOUS ADVERSE STATEMENTS ABOUT HIM; THAT A MEMBER OF THE COMMITTEE
PROMISED HIM A PERSONAL CONFRONTATION WITH THAT ATTORNEY, BUT THAT
PROMISE WAS NEVER KEPT; AND THAT ANOTHER LAWYER INTENDED "TO DESTROY"
HIM AND WAS ACTING IN COLLUSION WITH THE SECRETARY AND TWO MEMBERS OF
THE COMMITTEE.  THE APPELLATE DIVISION DENIED THE PETITION WITHOUT
OPINION.  IN THE STATE COURT OF APPEALS, PETITIONER ALLEGED THAT HE HAD
NEVER BEEN AFFORDED AN OPPORTUNITY TO CONFRONT HIS ACCUSERS OR TO CROSS
EXAMINE THEM AND THAT HE COULD NOT BE SURE OF THE COMMITTEE'S REASONS
FOR REFUSING TO CERTIFY HIM FOR ADMISSION.  AFTER GRANTING LEAVE TO
APPEAL, OBTAINING THE FILE FROM THE APPELLATE DIVISION, RECEIVING
BRIEFS AND HEARING ARGUMENTS, THE COURT OF APPEALS AFFIRMED THE ORDER
OF THE APPELLATE DIVISION WITHOUT OPINION; BUT IT AMENDED ITS
REMITTITUR TO RECITE THAT IT HAD NECESSARILY PASSED UPON A QUESTION
UNDER THE FEDERAL CONSTITUTION AND HELD THAT PETITIONER WAS NOT DENIED
DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS.  HELD:  PETITIONER WAS DENIED PROCEDURAL DUE PROCESS WHEN
HE WAS DENIED ADMISSION TO THE BAR BY THE APPELLATE DIVISION WITHOUT A
HEARING BEFORE EITHER THE COMMITTEE OR THE APPELLATE DIVISION ON THE
CHARGES FILED AGAINST HIM.  PP. 97-106. 

(A)  THE ISSUE PRESENTED IS JUSTICIABLE, SINCE THE CLAIM OF PRESENT
RIGHT TO ADMISSION TO THE BAR OF A STATE AND THE DENIAL OF THAT RIGHT
IS A CONTROVERSY.  P. 102. 

(B)  THE REQUIREMENTS OF PROCEDURAL DUE PROCESS MUST BE MET BEFORE A
STATE CAN EXCLUDE A PERSON FROM PRACTICING LAW.  P. 102. 

(C)  PROCEDURAL DUE PROCESS OFTEN REQUIRES CONFRONTATION AND CROSS
EXAMINATION OF THOSE WHOSE WORD DEPRIVES A PERSON OF HIS LIVELIHOOD. 
PP. 103-104. 

(D)  WHERE, AS HERE, THE APPELLATE DIVISION HELD NO HEARINGS OF ITS
OWN TO DETERMINE PETITIONER'S CHARACTER BUT RELIED ENTIRELY UPON THE
REPORT OF THE COMMITTEE, IT CANNOT ESCAPE THE REQUIREMENTS OF DUE
PROCESS BY CLAIMING THAT THE COMMITTEE'S ACTION WAS MERELY ADVISORY. 
P. 104. 

(E)  IN VIEW OF THE CERTIFICATION BY THE COURT OF APPEALS THAT IT
"NECESSARILY" RULED ON THE CONSTITUTIONAL ISSUE "PRESENTED," IT CANNOT
BE SAID THAT PETITIONER SOUGHT RELIEF TOO LATE.  P. 104. 

(F)  PETITIONER WAS CLEARLY ENTITLED TO NOTICE OF, AND A HEARING ON,
THE GROUNDS FOR HIS REJECTION, EITHER BEFORE THE COMMITTEE OR BEFORE
THE APPELLATE DIVISION.  PP. 104-105. 

WILLNER V. COMMITTEE ON CHARACTER AND FITNESS, APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BLACK. 

PETITIONER PASSED THE NEW YORK BAR EXAMINATIONS IN 1936 BUT HAS NOT
YET BEEN ADMITTED TO PRACTICE.   THE PRESENT CASE IS THE LATEST IN A
LONG SERIES OF PROCEEDINGS WHEREBY HE SEEKS ADMISSION. 

UNDER NEW YORK LAW THE APPELLATE DIVISION OF THE STATE SUPREME COURT
OF EACH OF THE FOUR JUDICIAL DEPARTMENTS HAS POWER TO ADMIT APPLICANTS
TO THE BAR.  ONCE THE STATE BOARD OF BAR EXAMINERS CERTIFIES THAT AN
APPLICANT HAS PASSED THE EXAMINATION (OR THAT AN EXAMINATION HAS BEEN
DISPENSED WITH), THE APPELLATE DIVISION SHALL ADMIT HIM TO PRACTICE "IF
IT SHALL BE SATISFIED THAT SUCH PERSON POSSESSED THE CHARACTER AND
GENERAL FITNESS REQUISITE FOR AN ATTORNEY AND COUNSELLOR-AT-LAW." 
JUDICIARY LAW SEC. 90(1)(A). 

THE APPELLATE DIVISION IS REQUIRED BY RULE 1 OF THE NEW YORK RULES OF
CIVIL PRACTICE TO APPOINT A COMMITTEE OF NOT LESS THAN THREE PRACTICING
LAWYERS "FOR THE PURPOSE OF INVESTIGATING THE CHARACTER AND FITNESS" OF
APPLICANTS.  "UNLESS OTHERWISE ORDERED BY THE APPELLATE DIVISION, NO
PERSON SHALL BE ADMITTED TO PRACTICE" WITHOUT A FAVORABLE CERTIFICATE
FROM THE COMMITTEE.  IBID.  PROVISION IS MADE FOR SUBMISSION BY THE
APPLICANT TO THE COMMITTEE OF "ALL THE INFORMATION AND DATA REQUIRED BY
THE COMMITTEE AND THE APPELLATE DIVISION JUSTICES."  IBID.  IF AN
APPLICANT HAS ONCE APPLIED FOR ADMISSION AND FAILED TO OBTAIN A
CERTIFICATE OF GOOD CHARACTER AND FITNESS, HE MUST OBTAIN AND SUBMIT
"THE WRITTEN CONSENT" OF THE APPELLATE DIVISION TO A RENEWAL OF HIS
APPLICATION.  IBID. 

THE PAPERS OF AN APPLICANT FOR ADMISSION TO THE BAR ARE REQUIRED BY
RULE 1(G) OF THE RULES OF CIVIL PRACTICE TO BE KEPT ON FILE IN THE
OFFICE OF THE CLERK OF THE APPELLATE DIVISION. 

THE COURT OF APPEALS PURSUANT TO ITS RULE-MAKING AUTHORITY (JUDICIARY
LAW SEC. 53(1)) HAS PROMULGATED RULES FOR THE ADMISSION OF ATTORNEYS
AND COUNSELLORS-AT-LAW WHICH PROVIDE, INTER ALIA, THAT EVERY APPLICANT
MUST PRODUCE BEFORE THE COMMITTEE "EVIDENCE THAT HE POSSESSES THE GOOD
MORAL CHARACTER AND GENERAL FITNESS REQUISITE FOR AN ATTORNEY AND
COUNSELLOR-AT-LAW" (RULE VIII-1), AND THAT JUSTICES OF THE APPELLATE
DIVISION SHALL ADOPT "SUCH ADDITIONAL RULES FOR ASCERTAINING THE MORAL
AND GENERAL FITNESS OF APPLICANTS AS TO SUCH JUSTICES MAY SEEM
PROPER."  RULE VIII-4. 

THE APPELLATE DIVISION TO WHICH PETITIONER HAS MADE APPLICATION HAS
NOT PROMULGATED ANY "ADDITIONAL RULES" UNDER RULE VIII-4.  ITS
CHARACTER AND FITNESS COMMITTEE CONSISTS OF 10 MEMBERS; AND THAT
COMMITTEE, WE ARE ADVISED, HAS NOT PUBLISHED OR PROVIDED ANY RULES OF
PROCEDURE. 

THE STATUTE PROVIDES THAT "ALL PAPERS, RECORDS AND DOCUMENTS" OF
APPLICANTS "SHALL BE SEALED AND BE DEEMED PRIVATE AND CONFIDENTIAL,"
EXCEPT THAT "UPON GOOD CAUSE BEING SHOWN, THE JUSTICES OF THE APPELLATE
DIVISION  ...  ARE EMPOWERED, IN THIER DISCRETION, BY WRITTEN ORDER, TO
PERMIT TO BE DIVULGED ALL OR ANY PART OF SUCH PAPERS, RECORDS AND
DOCUMENTS."  JUDICIARY LAW SEC. 90(10).  AND FOR THAT PURPOSE THEY MAY
MAKE SUCH RULES "AS THEY MAY DEEM NECESSARY."  IBID. 

BUT NEW YORK DOES NOT APPEAR TO HAVE ANY PROCEDURE WHEREBY AN
APPLICANT FOR ADMISSION TO THE BAR IS SERVED WITH AN ORDER TO SHOW
CAUSE BY THE APPELLATE DIVISION BEFORE HE IS DENIED ADMISSION NOR ANY
OTHER PROCEDURE THAT GIVES HIM A HEARING PRIOR TO THE COURT'S ADVERSE
ACTION.  (FN1) 

THE PRESENT CASE STARTED WITH A PETITION BY WILLNER TO THE APPELLATE
DIVISION SEEKING LEAVE TO FILE A DE NOVO APPLICATION WHICH ALLEGED THE
FOLLOWING: 

WILLNER HAD BEEN CERTIFIED BY THE STATE BOARD OF BAR EXAMINERS AS
HAVING PASSED THE BAR EXAMINATIONS IN 1936, AND THE COMMITTEE IN 1938,
AFTER SEVERAL HEARINGS, FILED WITH THE APPELLATE DIVISION ITS
DETERMINATION THAT IT WAS NOT SATISFIED AND COULD NOT "CERTIFY THAT THE
APPLICANT POSSESSES THE CHARACTER AND GENERAL FITNESS REQUISITE FOR AN
ATTORNEY AND COUNSELLOR-AT-LAW."  IN 1943 WILLNER APPLIED TO THE
APPELLATE DIVISION FOR AN ORDER DIRECTING THE COMMITTEE TO REVIEW ITS
1938 DETERMINATION.  THIS MOTION WAS DENIED WITHOUT OPINION.  WILLNER
IN 1948 AGAIN PETITIONED THE APPELLATE DIVISION FOR A REEXAMINATION OF
HIS APPLICATION, AND FOR PERMISSION TO FILE A NEW APPLICATION.  THE
APPELLATE DIVISION PERMITTED HIM TO FILE A NEW APPLICATION.  UPON THE
FILING OF THAT APPLICATION, THE COMMITTEE CONDUCTED TWO HEARINGS IN
1948 AND, BY A REPORT IN 1950, REFUSED TO CERTIFY HIM FOR THE SECOND
TIME.  IN 1951 WILLNER AGAIN MADE APPLICATION TO THE APPELLATE DIVISION
FOR AN ORDER DIRECTING, INTER ALIA, THE COMMITTEE TO FURNISH HIM WITH
STATEMENTS OF ITS REASONS FOR ITS REFUSAL TO CERTIFY HIM OR THAT A
REFEREE BE APPOINTED TO HEAR AND REPORT ON THE QUESTION OF HIS
CHARACTER AND FITNESS.  THIS APPLICATION WAS DENIED WITHOUT OPINION. 
IN 1954 WILLNER FILED A FOURTH APPLICATION WITH THE APPELLATE DIVISION
REQUESTING LEAVE TO FILE AN APPLICATION FOR ADMISSION.  THIS WAS DENIED
WITHOUT OPINION.  THE COURT OF APPEALS REFUSED LEAVE TO APPEAL, AND
THIS COURT DENIED CERTIORARI.  348 U.S. 955.  IN 1960 WILLNER FILED A
FIFTH APPLICATION WITH THE APPELLATE DIVISION, WHICH APPLICATION WAS
DENIED WITHOUT OPINION. 

THE PRESENT PETITION FURTHER ALLEGED THAT WILLNER HAS BEEN A MEMBER
IN GOOD STANDING OF THE NEW YORK SOCIETY OF CERTIFIED PUBLIC
ACCOUNTANTS AND OF THE AMERICAN INSTITUTE OF ACCOUNTANTS SINCE 1951 AND
THAT HE HAS BEEN ADMITTED TO PRACTICE BEFORE THE TAX COURT AND THE
TREASURY DEPARTMENT SINCE 1928.  PETITIONER ALLEGED THAT IN CONNECTION
WITH HIS HEARINGS BEFORE THE COMMITTEE ON HIS 1937 APPLICATION HE WAS
SHOWN A LETTER CONTAINING VARIOUS ADVERSE STATEMENTS ABOUT HIM FROM A
NEW YORK ATTORNEY; THAT A MEMBER OF THE COMMITTEE PROMISED HIM A
PERSONAL CONFRONTATION WITH THAT ATTORNEY; BUT THAT THE PROMISE WAS
NEVER KEPT.  PETITIONER ALSO ALLEGED THAT HE HAD BEEN INVOLVED IN
LITIGATION WITH ANOTHER LAWYER WHO HAD AS HIS PURPOSE "TO DESTROY ME";
THAT THE SECRETARY OF THE COMMITTEE WAS TAKING ORDERS FROM THAT LAWYER
AND THAT TWO MEMBERS OF THE COMMITTEE WERE "IN CAHOOTS" WITH THAT
LAWYER. 

THE APPELLATE DIVISION DENIED THE PETITION WITHOUT OPINION AND DENIED
LEAVE TO APPEAL TO THE COURT OF APPEALS.  WILLNER THEREUPON SOUGHT
LEAVE TO APPEAL TO THE COURT OF APPEALS AND IN AN AFFIDAVIT IN SUPPORT
OF HIS MOTION STATED, "I WAS NEVER AFFORDED THE OPPORTUNITY OF
CONFRONTING MY ACCUSERS, OF HAVING THE ACCUSERS SWORN AND CROSS
EXAMINING THEM, AND THE OPPORTUNITY OF REFUTING THE ACCUSATIONS AND
ACCUSERS." 

THE COURT OF APPEALS GRANTED LEAVE TO APPEAL AND THE CLERK OF THAT
COURT OBTAINED FROM THE CLERK OF THE APPELLATE DIVISION THE FILE IN THE
CASE.  WILLNER, IN HIS BRIEF BEFORE THE COURT OF APPEALS, ARGUED HE HAD
BEEN DENIED HIS CONSTITUTIONAL RIGHTS IN THAT HE HAD BEEN DENIED
CONFRONTATION OF HIS ACCUSERS AND THAT, IN SPITE OF THE REPEATED
ATTEMPTS, HE COULD NOT BE SURE OF THE COMMITTEE'S REASONS FOR REFUSING
TO CERTIFY HIM FOR ADMISSION.  THE COURT OF APPEALS, AFTER ORAL
ARGUMENT, AFFIRMED THE ORDER WITHOUT OPINION.  11 N.Y.2D 866, 182
N.E.2D 288.  THEREAFTER, AT WILLNER'S REQUEST, THE COURT OF APPEALS
AMENDED ITS REMITTITUR TO RECITE THAT: 

"UPON THE APPEAL HEREIN THERE WAS PRESENTED AND NECESSARILY PASSED
UPON A QUESTION UNDER THE CONSTITUTION OF THE UNITED STATES, VIZ:
APPELLANT CONTENDED THAT HE WAS DENIED DUE PROCESS OF LAW IN VIOLATION
OF HIS CONSTITUTIONAL RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS
OF THE CONSTITUTION.  THE COURT OF APPEALS HELD THAT APPELLANT WAS NOT
DENIED DUE PROCESS IN VIOLATION OF SUCH CONSTITUTIONAL RIGHTS." 

WE GRANTED CERTIORARI, 379 U.S. 934. 

THE ISSUE PRESENTED IS JUSTICIABLE.  "A CLAIM OF A PRESENT RIGHT TO
ADMISSION TO THE BAR OF A STATE AND A DENIAL OF THAT RIGHT IS A
CONTROVERSY."  IN RE SUMMERS, 325 U.S. 561, 568.  MOREOVER, THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS MUST BE MET BEFORE A STATE CAN
EXCLUDE A PERSON FROM PRACTICING LAW.  A STATE CANNOT EXCLUDE A PERSON
FROM THE PRACTICE OF LAW OR FROM ANY OTHER OCCUPATION IN A MANNER OR
FOR REASONS THAT CONTRAVENE THE DUE PROCESS OR EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT."  SCHWARE V. BOARD OF BAR EXAMINERS, 353
U.S. 232, 238-239.  AS THE COURT SAID IN EX PARTE GARLAND, 4 WALL. 
333, 379, THE RIGHT IS NOT "A MATTER OF GRACE AND FAVOR." 

WE ARE NOT HERE CONCERNED WITH GROUNDS WHICH JUSTIFY DENIAL OF A
LICENSE TO PRACTICE LAW, BUT ONLY WITH WHAT PROCEDURAL DUE PROCESS
REQUIRES IF THE LICENSE IS TO BE WITHHELD.  THIS IS THE PROBLEM WHICH
CHIEF JUSTICE TAFT ADVERTED TO IN GOLDSMITH V. BOARD OF TAX APPEALS,
270 U.S. 117, INVOLVING AN APPLICATION OF A CERTIFIED PUBLIC ACCOUNTANT
TO PRACTICE BEFORE THE BOARD OF TAX APPEALS.  CHIEF JUSTICE TAFT
WRITING FOR THE COURT SAID: 

"WE THINK THAT THE PETITIONER HAVING SHOWN BY HIS APPLICATION THAT,
BEING A CITIZEN OF THE UNITED STATES AND A CERTIFIED PUBLIC ACCOUNTANT
UNDER THE LAWS OF A STATE, HE WAS WITHIN THE CLASS OF THOSE ENTITLED TO
BE ADMITTED TO PRACTICE UNDER THE BOARD'S RULES, HE SHOULD NOT HAVE
BEEN REJECTED UPON CHARGES OF HIS UNFITNESS WITHOUT GIVING HIM AN
OPPORTUNITY BY NOTICE FOR HEARING AND ANSWER.  THE RULES ADOPTED BY THE
BOARD PROVIDE THAT 'THE BOARD MAY IN ITS DISCRETION DENY ADMISSION,
SUSPEND OR DISBAR ANY PERSON.'  BUT THIS MUST BE CONSTRUED TO MEAN THE
EXERCISE OF A DISCRETION TO BE EXERCISED AFTER FAIR INVESTIGATION, WITH
SUCH A NOTICE, HEARING AND OPPORTUNITY TO ANSWER FOR THE APPLICANT AS
WOULD CONSTITUTE DUE PROCESS."  ID., P. 123. 

WE HAVE EMPHASIZED IN RECENT YEARS THAT PROCEDURAL DUE PROCESS OFTEN
REQUIRES CONFRONTATION AND CROSS-EXAMINATION OF THOSE WHOSE WORD
DEPRIVES A PERSON OF HIS LIVELIHOOD.  SEE GREENE V. MCELROY, 360 U.S.
474, 492, 496-497, AND CASES CITED.  (FN2)  THAT VIEW HAS BEEN TAKEN BY
SEVERAL STATE COURTS WHEN IT COMES TO PROCEDURAL DUE PROCESS AND THE
ADMISSION TO PRACTICE LAW.  COLEMAN V. WATTS, 81 SO. 2D 650;
APPLICATION OF BURKE, 87 ARIZ. 336, 351 P.2D 169; IN RE CRUM, 103 ORE. 
296, 204 P. 948; MOITY V. LOUISIANA STATE BAR ASSN., 239 LA. 1081, 121
SO. 2D 87.  CF. BROOKS V. LAWS, 208 F.2D 18, 33 (CONCURRING OPINION). 
WE THINK THE NEED FOR CONFRONTATION IS A NECESSARY CONCLUSION FROM THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS IN A SITUATION SUCH AS THIS. 
CF. GREENE V. MCELROY, SUPRA; CAFETERIA WORKERS V. MCELROY, 367 U.S.
886. 

THIS RESULT IS SOUGHT TO BE AVOIDED IN SEVERAL WAYS.  FIRST, IT IS
SAID THAT THE COMMITTEE'S ACTION IS MERELY ADVISORY, THAT IT IS AN
INVESTIGATOR NOT A TRIER OF FACTS, SINCE UNDER SEC. 90 OF THE JUDICIARY
LAW IT IS THE APPELLATE DIVISION THAT ULTIMATELY MUST BE CONVINCED OF
AN APPLICANT'S GOOD CHARACTER.  THE ANSWER IS THAT "UNLESS OTHERWISE
ORDERED BY THE APPELLATE DIVISION (NEW YORK RULES OF CIVIL PRACTICE,
RULE 1(D)), A FAVORABLE CERTIFICATE FROM THE COMMITTEE IS REQUISITE TO
ADMISSION BY THE APPELLATE DIVISION; AND WHERE, AS HERE, THE APPELLATE
DIVISION HAS HELD NO HEARINGS OF ITS OWN TO DETERMINE AN APPLICANT'S
CHARACTER, THE ROLE OF THE COMMITTEE IS MORE THAN THAT OF A MERE
INVESTIGATOR. 

SECOND, IT IS SAID THAT PETITIONER HAS SOUGHT RELIEF TOO LATE.  BUT
THE COURT OF APPEALS DID NOT REJECT HIS PETITION ON THAT GROUND. 
INSTEAD, IT STATED THAT IT "NECESSARILY" RULED ON THE CONSTITUTIONAL
ISSUE "PRESENTED."  WE CAN ONLY CONCLUDE THAT THE COURT OF APPEALS
WOULD HAVE FOUND IT "UNNECESSARY" TO PASS UPON ANY CONSTITUTIONAL
QUESTION IF UNDER STATE LAW OTHER GROUND HAD EXISTED FOR DENYING
PETITIONER RELIEF.  SEE CINCINNATI PACKET CO. V. BAY, 200 U.S. 179,
182; LYNUMN V. ILLINOIS, 372 U.S. 528, 535-536. 

THIRD, IT IS SAID THAT THE RECORD SHOWS THAT PETITIONER WAS NOT
REJECTED ON THE BASIS OF EX PARTE STATEMENTS BUT ON THE BASIS OF HIS
OWN STATEMENTS TO THE COMMITTEE.  IF THE COURT OF APPEALS REACHED THIS
CONCLUSION, THE ONLY CONSTITUTIONAL QUESTION WHICH WAS PRESENTED AND
WHICH IT COULD HAVE "NECESSARILY" PASSED ON WAS WHETHER PETITIONER WAS
DENIED DUE PROCESS BY NOT BEING INFORMED OF AND ALLOWED TO REBUT THE
BASES FOR EITHER THE COMMITTEE'S OR THE APPELLATE DIVISION'S FAILURE TO
FIND HIS GOOD CHARACTER.  IT DOES NOT APPEAR FROM THE RECORD THAT
EITHER THE COMMITTEE OR THE APPELLATE DIVISION, AT ANY STAGE IN THESE
PROCEEDINGS, EVER APPRISED PETITIONER OF ITS REASONS FOR FAILING TO BE
CONVINCED OF HIS GOOD CHARACTER.  PETITIONER WAS CLEARLY ENTITLED TO
NOTICE OF AND A HEARING ON THE GROUNDS FOR HIS REJECTION EITHER BEFORE
THE COMMITTEE OR BEFORE THE APPELLATE DIVISION.  GOLDSMITH V. BOARD OF
TAX APPEALS, SUPRA; CF. IN RE OLIVER, 333 U.S. 257, 273.  THERE SEEMS
NO QUESTION BUT THAT PETITIONER WAS APPRISED OF THE MATTERS THE
COMMITTEE WAS CONSIDERING. 

"BUT A 'FULL HEARING' - A FAIR AND OPEN HEARING - REQUIRES MORE THAN
THAT  ...  .  THOSE WHO ARE BROUGHT INTO CONTEST WITH  ...  GOVERNMENT
IN A QUASI-JUDICIAL PROCEEDING AIMED AT THE CONTROL OF THEIR ACTIVITIES
ARE ENTITLED TO BE FAIRLY ADVISED OF WHAT THE GOVERNMENT PROPOSES AND
TO BE HEARD UPON ITS PROPOSALS BEFORE IT ISSUES ITS FINAL COMMAND." 
MORGAN V. UNITED STATES, 304 U.S. 1, 18-19.    PETITIONER HAD NO
OPPORTUNITY TO ASCERTAIN AND CONTEST THE BASES OF THE COMMITTEE'S
REPORTS TO THE APPELLATE DIVISION, AND THE APPELLATE DIVISION GAVE HIM
NO SEPARATE HEARING.  YET, "THE REQUIREMENTS OF FAIRNESS ARE NOT
EXHAUSTED IN THE TAKING OR CONSIDERATION OF EVIDENCE BUT EXTEND TO THE
CONCLUDING PARTS OF THE PROCEDURE AS WELL AS TO THE BEGINNING AND
INTERMEDIATE STEPS."  ID., AT 20.  CF. GONZALES V. UNITED STATES, 348
U.S. 407, 414. 

IF THE COURT OF APPEALS BASED ITS DECISION ON THE GROUND THAT DENYING
PETITIONER THE RIGHT OF CONFRONTATION DID NOT VIOLATE DUE PROCESS, WE
ALSO HOLD THAT IT ERRED FOR THE REASONS EARLIER STATED.  BUT BECAUSE
RESPONDENT HAS ASSERTED THAT THE EX PARTE STATEMENTS INVOLVED IN THIS
CASE PLAYED NO PART IN ANY OF THE DECISIONS BELOW, WE HAVE SEARCHED THE
RECORD TO ASSESS THIS CONTENTION.   IT SHOWS THAT THE COMMITTEE HAD
SEVERAL COMPLAINTS AGAINST PETITIONER.  THE VARIOUS INTRA-COMMITTEE
MEMORANDA AND REPORTS TO THE APPELLATE DIVISION CONTAINED IN THIS
RECORD SUPPORT THE CONCLUSION THAT THE COMMITTEE DID IN FACT RELY ON
THESE COMPLAINTS, AT LEAST TO SOME EXTENT, IN REACHING ITS
DETERMINATIONS.  AND THERE IS NO INDICATION IN THE RECORD THAT ANY OF
THE APPELLATE DIVISION'S ORDERS WERE BASED SOLELY ON PETITIONER'S OWN
STATEMENTS.  THUS, DESPITE RESPONDENT'S ASSURANCES THAT THE COMMITTEE
NEVER BASES ITS FINAL ACTION ON EX PARTE STATEMENTS, WE CANNOT SAY THAT
THE COURT OF APPEALS ERRED IN CONCLUDING THAT THIS CONSTITUTIONAL
QUESTION WAS "NECESSARILY" DECIDED. 

WE HOLD THAT PETITIONER WAS DENIED PROCEDURAL DUE PROCESS WHEN HE WAS
DENIED ADMISSION TO THE BAR BY THE APPELLATE DIVISION WITHOUT A HEARING
ON THE CHARGES FILED AGAINST HIM BEFORE EITHER THE COMMITTEE OR THE
APPELLATE DIVISION. 

FN1  IN NEW JERSEY THE COMMITTEE ON CHARACTER AND FITNESS IS DIRECTED
BY RULE 1:20-6(A) OF THE SUPREME COURT RULES TO TAKE THE FOLLOWING
STEPS IN CASE OF AN ADVERSE REPORT: 

"IF THE COMMITTEE BELIEVES THAT AN APPLICANT IS NOT OF FIT CHARACTER
OR HAS NOT SERVED A SATISFACTORY CLERKSHIP, IT SHALL PROMPTLY NOTIFY
THE APPLICANT OF ITS INTENTION TO FILE AN ADVERSE REPORT AS TO HIS
MORAL CHARACTER OR CLERKSHIP AND OF THE TIME, NOT LESS THAN 5 DAYS,
WITHIN WHICH THE APPLICANT MAY FILE WITH THE COMMITTEE A WRITTEN
REQUEST FOR A HEARING.  IF THE APPLICANT DOES NOT REQUEST A HEARING
WITHIN THE TIME FIXED BY THE COMMITTEE, IT SHALL PROMPTLY NOTIFY HIM OF
ITS ACTION AND FILE ITS REPORT WITH THE COURT FOR APPROPRIATE ACTION BY
IT.  IF THE APPLICANT REQUESTS A HEARING WITHIN THE TIME FIXED BY THE
COMMITTEE, IT SHALL PROMPTLY NOTIFY HIM OF THE TIME AND PLACE OF THE
HEARING.  THE HEARING SHALL BE CONDUCTED IN PRIVATE AND IN A FORMAL
MANNER.  A COMPLETE STENOGRAPHIC RECORD SHALL BE KEPT AND TO THIS END
AN OFFICIAL COURT REPORTER OF THE COUNTY, ASSIGNED BY THE SUPERVISING
COURT REPORTER FOR THAT PURPOSE, SHALL SERVE THE COMMITTEE AND PREPARE,
WITHOUT ADDITIONAL COMPENSATION, SUCH TRANSCRIPTS AS MAY BE ORDERED BY
IT.  A TRANSCRIPT MAY BE ORDERED BY THE APPLICANT AT HIS OWN EXPENSE. 
THE COMMITTEE SHALL SUBMIT A REPORT OF ITS FINDINGS AND CONCLUSIONS TO
THE COURT, WITH A COPY TO THE APPLICANT, FOR APPROPRIATE ACTION BY IT.
AN APPLICANT AGGRIEVED BY THE DETERMINATION OF THE COMMITTEE MAY, ON
NOTICE TO THE COMMITTEE, PETITION THE COURT FOR RELIEF." 

RULE 1:20-6(B) GOES ON TO PROVIDE: 

"THE BOARD OF BAR EXAMINERS, SUBJECT TO THE APPROVAL OF THE COURT,
SHALL PRESCRIBE THE PROCEDURES TO BE FOLLOWED BY THE COMMITTEES ON
CHARACTER AND FITNESS IN THE PERFORMANCE OF THEIR DUTIES UNDER
PARAGRAPH (A) OF THIS RULE." 

FN2  CF. CAFETERIA WORKERS V. MCELROY, 367 U.S. 886, WHERE ONLY "THE
OPPORTUNITY TO WORK AT ONE ISOLATED AND SPECIFIC MILITARY INSTALLATION"
WAS INVOLVED.  ID., AT 896. 

MR. JUSTICE GOLDBERG, WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART JOIN, CONCURRING. 

I CONCUR IN THE OPINION AND JUDGMENT OF THE COURT BELIEVING, AS I DO,
THAT UNDER ALL OF THE CIRCUMSTANCES HERE THE PETITIONER WAS DENIED
PROCEDURAL DUE PROCESS WHICH THE CONSTITUTION DEMANDS BE ACCORDED BY
THE STATES TO APPLICANTS FOR ADMISSION TO THE BAR.  NO CONFLICT EXISTS
BETWEEN CONSTITUTIONAL REQUISITES AND EXACTION OF THE HIGHEST MORAL
STANDARDS FROM THOSE WHO WOULD PRACTICE LAW.  SEE SCHWARE V. BOARD OF
BAR EXAMINERS, 353 U.S. 232, 238-239.  CERTAINLY LAWYERS AND COURTS
SHOULD BE PARTICULARLY SENSITIVE OF, AND HAVE A SPECIAL OBLIGATION TO
RESPECT, THE DEMANDS OF DUE PROCESS.  THIS SPECIAL AWARENESS, HOWEVER,
DOES NOT ALTER OUR ESSENTIAL FUNCTION OR DUTY.  IN REVIEWING STATE
ACTION IN THIS AREA, AS IN ALL OTHERS, WE LOOK TO SUBSTANCE, NOT TO
BARE FORM, TO DETERMINE WHETHER CONSTITUTIONAL MINIMUMS HAVE BEEN
HONORED. 

THE NEW YORK ADMISSIONS PROCEDURES DESCRIBED IN THE OPINION OF THE
COURT ARE FAIRLY CHARACTERISTIC OF THOSE PREVALENT THROUGHOUT THE
COUNTRY.  IN GENERAL, THEY CONTEMPLATE THAT AN APPLICANT FOR ADMISSION
WHO HAS SUCCESSFULLY PASSED THE BAR EXAMINATION WILL FILE AN
APPLICATION BEFORE A COURT-APPOINTED COMMITTEE OF LAWYERS WHICH
CONDUCTS AN INQUIRY INTO HIS MORAL CHARACTER AND ON THE BASIS THEREOF
RECOMMENDS THE GRANT OR DENIAL OF ADMISSION BY THE COURT.  COMMITTEE
PROCEEDINGS ARE OFTEN INFORMAL AND, FOR THE PROTECTION OF THE
CANDIDATE, ARE GENERALLY NOT PUBLICIZED.  COMMITTEE MEMBERS ARE USUALLY
UNPAID AND SERVE IN FULFILLMENT OF THEIR OBLIGATION TO THE PROFESSION
AND AS OFFICERS OF THE COURT.  THEY PERFORM AN INDISPENSABLE AND VERY
OFTEN THANKLESS TASK.  WHILE THE VAST MAJORITY OF CANDIDATES ARE
APPROVED WITHOUT DIFFICULTY, IN EXCEPTIONAL CASES, SUCH AS THIS, EITHER
INFORMATION SUPPLIED BY THE APPLICANT HIMSELF OR MATERIAL DEVELOPED IN
THE COURSE OF THE COMMITTEE'S INVESTIGATION GIVES RISE TO QUESTIONS
CONCERNING THE APPLICANT'S MORAL CHARACTER. 

THE CONSTITUTIONAL REQUIREMENTS IN THIS CONTEXT MAY BE SIMPLY STATED:
IN ALL CASES IN WHICH ADMISSION TO THE BAR IS TO BE DENIED ON THE
BASIS OF CHARACTER, THE APPLICANT, AT SOME STAGE OF THE PROCEEDINGS
PRIOR TO SUCH DENIAL, MUST BE ADEQUATELY INFORMED OF THE NATURE OF THE
EVIDENCE AGAINST HIM AND BE ACCORDED AN ADEQUATE OPPORTUNITY TO REBUT
THIS EVIDENCE.  AS I UNDERSTAND THE OPINION OF THE COURT, THIS DOES NOT
MEAN THAT IN EVERY CASE CONFRONTATION AND CROSS-EXAMINATION ARE
AUTOMATICALLY REQUIRED.  IT MUST BE REMEMBERED THAT WE ARE DEALING, AT
LEAST AT THE INITIAL STAGE OF PROCEEDINGS, NOT WITH A COURT TRIAL, BUT
WITH A NECESSARILY MUCH MORE INFORMAL INQUIRY INTO AN APPLICANT'S
QUALIFICATIONS FOR ADMISSION TO THE BAR.  THE CIRCUMSTANCES WILL
DETERMINE THE NECESSARY LIMITS AND INCIDENTS IMPLICIT IN THE CONCEPT OF
A "FAIR" HEARING.  THUS, FOR EXAMPLE, WHEN THE DEROGATORY MATTER
APPEARS FROM INFORMATION SUPPLIED OR CONFIRMED BY THE APPLICANT
HIMSELF, OR IS OF AN UNDISPUTED DOCUMENTARY CHARACTER DISCLOSED TO THE
APPLICANT, AND IT IS PLAIN AND UNCONTRADICTED THAT THE COMMITTEE'S
RECOMMENDATION AGAINST ADMISSION IS PREDICATED THEREON AND REASONABLY
SUPPORTED THEREBY, THEN NEITHER THE COMMITTEE'S INFORMAL PROCEDURES,
ITS ULTIMATE RECOMMENDATIONS, NOR A COURT RULING SUSTAINING THE
COMMITTEE'S CONCLUSION MAY BE PROPERLY CHALLENGED ON DUE PROCESS
GROUNDS, PROVIDED THE APPLICANT HAS BEEN INFORMED OF THE FACTUAL BASIS
OF THE CONCLUSION AND HAS BEEN AFFORDED AN ADEQUATE OPPORTUNITY TO
REPLY OR EXPLAIN.  OF COURSE, IF THE DENIAL DEPENDS UPON INFORMATION
SUPPLIED BY A PARTICULAR PERSON WHOSE RELIABILITY OR VERACITY IS
BROUGHT INTO QUESTION BY THE APPLICANT, CONFRONTATION AND THE RIGHT OF
CROSS-EXAMINATION SHOULD BE AFFORDED.  SINCE ADMISSION TO THE BAR IS
ULTIMATELY A MATTER FOR THE COURTS, THERE IS AMPLE POWER TO COMPEL
ATTENDANCE OF WITNESSES AS REQUIRED. 

APPLICATION OF THESE PRINCIPLES TO THIS CASE LEADS ME TO CONCUR IN
THE COURT'S OPINION AND JUDGMENT.  THE RECORD HERE, TO SAY THE LEAST,
IS COMPLEX, MUDDLED, AND IN MANY RESPECTS UNSATISFACTORY.  WE ARE
DEALING WITH AN APPLICANT WHO FIRST APPLIED FOR ADMISSION 25 YEARS
AGO.  COMPARISON OF HIS APPLICATIONS WITH FACTS LATER CONFIRMED BY THE
PETITIONER HIMSELF SUGGESTS A LACK OF COMPLETE CANDOR IN DEALING WITH
THE COMMITTEE.  WHILE THIS FAILURE TO DISCLOSE, ALONG WITH OTHER MORE
RECENTLY OCCURRING MATTERS HERE PRESENT, MIGHT HAVE SUPPORTED A REFUSAL
TO CERTIFY THE PETITIONER'S CHARACTER, THERE ARE PRESENT ADDITIONAL
ELEMENTS WHICH INDICATE THAT THE COMMITTEE MAY HAVE BEEN MOTIVATED IN
ITS CONCLUSION BY CHARGES MADE AGAINST THE PETITIONER BY CERTAIN
INFORMANTS, THE EVALUATION OF WHICH WOULD NECESSARILY DEPEND UPON
ESTIMATES OF CREDIBILITY.  THE RECORD IS NOT CLEAR WHETHER THE
PETITIONER ACTUALLY REQUESTED AN OPPORTUNITY TO CONFRONT AND CROSS
EXAMINE THESE INFORMANTS AT THE TIME OF HIS FIRST APPLICATION IN THE
LATE 1930'S.  IT IS PLAIN, HOWEVER, THAT HE NOW SEEKS THAT OPPORTUNITY
AND THERE IS NO INDICATION THAT THE STATE COURT CONSIDERED THE CLAIM TO
BE UNTIMELY.  MOREOVER, AT NO POINT ARE WE OR THE PETITIONER
SPECIFICALLY ADVISED BY ANY FINDING OF THE COMMITTEE OR OF THE STATE
COURTS AS TO THE PRECISE BASIS OF DENIAL TO HIM OF EITHER HIS ORIGINAL
OR RENEWED APPLICATIONS FOR ADMISSION OR HIS REQUESTS FOR
RECONSIDERATION THEREOF.  IN SUBSTANCE, THEREFORE, AS THE CASE REACHES
US, WE ARE CONFRONTED WITH CIRCUMSTANCES WHICH, UPON SIFTING, MAY OR
MAY NOT SUPPORT THE DENIAL OF ADMISSION TO THE BAR.  AND OUR
DIFFICULTIES ARE COMPOUNDED BY THE AMENDED REMITTITUR OF THE NEW YORK
COURT OF APPEALS WHICH IS FAIRLY SUSCEPTIBLE TO THE READING GIVEN IT IN
THE COURT'S OPINION - THAT CONFRONTATION IS NOT CONSTITUTIONALLY
REQUIRED IN A BAR ADMISSION CASE SUCH AS THIS IN WHICH THE CHARACTER
COMMITTEE APPEARS TO HAVE RELIED, AT LEAST IN PART, FOR ITS ADVERSE
RECOMMENDATION UPON CONTRADICTED INFORMATION SUPPLIED BY INFORMERS
WHOSE CREDIBILITY WAS CHALLENGED BY THE APPLICANT.  THE NET RESULT TO
ME, THEREFORE, IS THAT THIS CASE, WHATEVER IT STARTED OUT TO BE, HAS
BECOME ONE IN WHICH DUE PROCESS REQUIRES EITHER DE NOVO CONSIDERATION
OF THE PETITIONER'S APPLICATION OR AN ORDERLY SORTING OUT OF THE ISSUES
AND AN ARTICULATED AND CONSTITUTIONALLY GROUNDED DECISION ON THE MERITS
OF THE PETITIONER'S CLAIMS TO ADMISSION.  NEW YORK PROCEDURES ARE, I AM
SURE, ADEQUATE TO EFFECT THE PROPER RESULT UPON REMAND. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

THE MAJORITY AND CONCURRING OPINIONS BEAR WITNESS TO THE DIFFICULTY
THE COURT HAS HAD DIVINING FROM THIS MESSY AND OPAQUE RECORD WHETHER
THE CASE IN TRUTH PRESENTS A SUBSTANTIAL FEDERAL QUESTION.   OBVIOUSLY
MUCH INFLUENCED BY THE AMENDED REMITTITUR OF THE COURT OF APPEALS, THE
COURT CONSIDERS THAT THE STATE COURTS HAVE HELD THAT AN APPLICANT FOR
MEMBERSHIP IN THE NEW YORK BAR MAY BE DENIED ADMISSION WITHOUT HAVING
HAD THE OPPORTUNITY AT ANY STAGE TO CONFRONT PERSONS WHOSE UNFAVORABLE
INFORMATION MAY HAVE LED THE CHARACTER COMMITTEE TO REFUSE TO CERTIFY
THE CANDIDATE'S "CHARACTER AND FITNESS." 

IT WOULD TAKE A GREAT DEAL TO PERSUADE ME THAT EITHER OF THESE
EXPERIENCED AND RESPECTED NEW YORK COURTS HAS BEEN GUILTY OF SUCH A
QUESTIONABLE CONSTITUTIONAL HOLDING.  IN LIGHT OF THE RECORD, I DO NOT
BELIEVE THAT EITHER THE COURT OF APPEALS' AFFIRMANCE OR ITS AMENDED
REMITTITUR BY ANY MEANS POINTS TO THE INTERPRETATION WHICH THIS COURT
NOW PLACES ON THE ACTION OF THAT COURT.  IN MY VIEW THE MORE
REASONABLE, AND CORRECT, INTERPRETATION IS THAT THE COURT OF APPEALS
SIMPLY HELD THAT, IN LIGHT OF WHAT HAD GONE BEFORE, (FN1) THE APPELLATE
DIVISION'S REFUSAL TO ENTERTAIN PETITIONER'S LAST DE NOVO APPLICATION
FOR ADMISSION - THE EIGHTH PROCEEDING BEFORE THAT COURT - INVOLVED NO
ABUSE OF ITS DISCRETION UNDER RULE 1 OF THE NEW YORK RULES OF CIVIL
PRACTICE.  MORE PARTICULARLY, IN THESE PRIOR PROCEEDINGS NO
CONFRONTATION CLAIM WAS RAISED UNTIL 1954 - SOME 16 YEARS AFTER THE
ORIGINAL DENIAL OF ADMISSION - DURING WHICH PERIOD THE MATTER HAD
ALREADY BEEN BEFORE THE APPELLATE DIVISION FIVE TIMES (NOTE 1, SUPRA). 
(FN2) 

SO INTERPRETING THE COURT OF APPEALS' ACTION, I DO NOT THINK THIS
CASE PRESENTS A SUBSTANTIAL FEDERAL QUESTION - NO MORE SO THAN DID THE
PETITION FOR CERTIORARI WHICH WAS FILED HERE IN 1955, RAISING THIS SAME
CONFRONTATION QUESTION IN ALMOST THE SAME CONTEXT OF PRIOR PROCEEDINGS,
AND WHICH THIS COURT DENIED.  IN RE WILLNER, 348 U.S. 955. 

NOW THAT PLENARY CONSIDERATION HAS SHED MORE LIGHT ON THIS CASE THAN
IN THE NATURE OF THINGS WAS AFFORDED AT THE TIME THE PETITION FOR
CERTIORARI WAS ACTED UPON, I THINK THE PROPER COURSE IS TO DISMISS THE
WRIT AS IMPROVIDENTLY GRANTED. 

FN1  THE CHRONOLOGY OF EVENTS WAS IN SUBSTANCE THIS:  THE APPELLATE
DIVISION, UPON THE CHARACTER COMMITTEE'S REFUSAL TO CERTIFY THE
APPLICANT, ORIGINALLY DENIED ADMISSION IN 1938.  REFUSAL OF
CERTIFICATION HAD FOLLOWED PETITIONER'S APPEARANCE BEFORE THE COMMITTEE
AT WHICH, AMONG OTHER THINGS, HE HAD BEEN INFORMED AND INTERROGATED
ABOUT COMPLAINTS RECEIVED FROM TWO LAWYERS, WIEDER AND DEMPSEY, (WIEDER
CHARGED THAT PETITIONER HAD NOT COMPLETED HIS REQUIRED "CLERKSHIP,"
HAVING BEEN DISCHARGED FROM WIEDER'S OFFICE FOR UNSATISFACTORY
PERFORMANCE BEFORE THE END OF THE CLERKSHIP PERIOD.  DEMPSEY'S
COMPLAINT RELATED TO CERTAIN LITIGATION INVOLVING PETITIONER AND ONE OF
DEMPSEY'S CLIENTS, IN WHICH PETITIONER HAD BEEN CHARGED WITH FRAUD IN
CONNECTION WITH ACCOUNTANCY SERVICES PERFORMED FOR THE CLIENT.)  APART
FROM THESE EX PARTE CHARGES, PETITIONER IN HIS RETURN TO THE
COMMITTEE'S WRITTEN QUESTIONNAIRE HAD (1) STATED THAT HE HAD NOT BEEN
CONNECTED WITH ANY LAW OFFICES, ALTHOUGH IN A LATER INTERVIEW HE HAD
INFORMED THE COMMITTEE THAT HE HAD IN FACT BEEN EMPLOYED IN WIEDER'S
OFFICE FOR A SHORT TIME; (2) STATED THAT HE HAD SERVED "NO CLERKSHIP,"
ALTHOUGH HE HAD SUBSEQUENTLY INFORMED THE COMMITTEE OF THE FILING OF A
CERTIFICATE OF CLERKSHIP WITH THE COURT OF APPEALS IN ALBANY; (3)
FAILED TO DISCLOSE THE AFOREMENTIONED SUIT BROUGHT AGAINST HIM BY
DEMPSEY'S CLIENT; (4) FAILED TO DISCLOSE AN ANNULMENT SUIT THAT HAD
BEEN BROUGHT AGAINST HIM BY HIS 16-YEAR-OLD WIFE, LATER STATING THAT HE
HAD OMITTED THIS INFORMATION BECAUSE "SOME PEOPLE CONSIDER IT A HEINOUS
OFFENSE"; AND (5) FAILED TO INCLUDE SIX OTHER SUITS OR JUDGMENTS
AGAINST HIM AMONG THOSE LISTED IN THE QUESTIONNAIRE.  THE COMMITTEE
CHARACTERIZED PETITIONER'S DEMEANOR AS ONE OF "GENERAL EVASIVENESS." 
ALTHOUGH HE MADE NO CONTEMPORARY EFFORT TO OBTAIN REVIEW OF THE
ORIGINAL DENIAL OF ADMISSION, PETITIONER THEREAFTER SOUGHT TO ATTACK IT
BEFORE THE APPELLATE DIVISION ON FOUR SUCCESSIVE OCCASIONS DURING THE
YEARS 1943-1951 - ALL TO NO AVAIL.  AGAIN, HE SOUGHT NO REVIEW OF ANY
OF THESE PROCEEDINGS, ONE OF WHICH INVOLVED A DE NOVO HEARING BEFORE
THE CHARACTER COMMITTEE, AND IN NONE DOES HE APPEAR TO HAVE RAISED THE
CONFRONTATION CLAIM NOW MADE HERE. 

LACK OF CONFRONTATION SEEMS TO HAVE BEEN ASSERTED FOR THE FIRST TIME
IN 1954, WHEN PETITIONER AGAIN UNSUCCESSFULLY MOVED THE APPELLATE
DIVISION FOR LEAVE TO FILE A DE NOVO APPLICATION FOR ADMISSION.  LEAVE
TO APPEAL TO THE NEW YORK COURT OF APPEALS, SOUGHT THEN FOR THE FIRST
TIME, WAS DENIED, AND THIS COURT IN TURN DENIED CERTIORARI.  348 U.S.
955. 

FINALLY IN 1960 AND 1961 PETITIONER TWICE MORE UNSUCCESSFULLY MOVED
THE APPELLATE DIVISION FOR LEAVE TO FILE A DE NOVO APPLICATION FOR
ADMISSION, THE LATTER PROCEEDING BEING THE ONE PRESENTLY BEFORE THE
COURT. 

FN2  IN HIS PETITION INITIATING THE PRESENT PROCEEDING PETITIONER
ALLEGED THAT DURING THE INTERVIEWS HELD IN CONNECTION WITH HIS ORIGINAL
APPLICATION THE CHAIRMAN OF THE CHARACTER COMMITTEE PROMISED HIM "A
CONFRONTATION."  THE RECORD, HOWEVER, DISCLOSES NO SUCH EPISODE. 
INDEED AT THE THIRD COMMITTEE HEARING IN 1938 PETITIONER WAS ASKED
WHETHER HE HAD ANYTHING FURTHER TO PRESENT AND HE RESPONDED SIMPLY BY
REFERRING TO ONE OF THE AFFIDAVITS SUBMITTED ON HIS BEHALF PURPORTING
TO REFUTE THE WIEDER CHARGE (NOTE 1, SUPRA).  HE MADE NO REQUEST FOR
CONFRONTATION. 
..END :







RAILWAY CLERKS V. ALLEN 373 U.S. 113 


NO. 316.  ARGUED MARCH 25, 1963.  - DECIDED MAY 13, 1963.  - 256 N.C.
700, 124 S.E.2D 871, REVERSED AND CAUSED REMANDED. 


A GROUP OF NONUNION RAILROAD EMPLOYEES SUED IN A NORTH CAROLINA STATE
COURT TO ENJOIN ENFORCEMENT OF A UNION-SHOP AGREEMENT ENTERED INTO
BETWEEN A RAILROAD AND SEVERAL UNIONS REPRESENTING THEIR EMPLOYEES
UNDER SEC. 2 ELEVENTH, OF THE RAILWAY LABOR ACT, WHICH REQUIRED ALL
EMPLOYEES TO PAY UNIFORMLY EXACTED UNION INITIATION FEES, ASSESSMENTS
AND DUES, IN ORDER TO KEEP THEIR JOBS.  THE COMPLAINT ALLEGED THAT SUMS
EXACTED UNDER THE AGREEMENT "HAVE BEEN AND ARE AND WILL BE REGULARLY
AND CONTINUALLY USED" TO FINANCE POLITICAL ACTIVITIES "DIRECTLY AT
CROSS-PURPOSES WITH THE FREE WILL AND CHOICE OF THE PLAINTIFFS."  A
JURY MADE SEPARATE FINDINGS THAT MONEYS EXACTED UNDER THE AGREEMENT
WERE USED BY THE UNIONS FOR PURPOSES NOT REASONABLY NECESSARY OR
RELATED TO COLLECTIVE BARGAINING, INCLUDING CERTAIN POLITICAL
ACTIVITIES.  THE TRIAL COURT ENJOINED THE UNIONS "FROM PLACING ANY
COMPULSION OF ANY NATURE UPON THE PLAINTIFFS  ...  WHEREBY THEY  ...
AGAINST THEIR FREE WILL AND CHOICE WOULD BE REQUIRED TO JOIN THE
DEFENDANT UNIONS  ...  OR PAY MONEY TO SAID UNIONS"; PROVIDED, HOWEVER,
THAT, UPON A SHOWING BY THE UNIONS OF THE PROPORTION OF EXPENDITURES
FROM EXACTED FUNDS THAT WAS REASONABLY NECESSARY AND RELATED TO
COLLECTIVE BARGAINING, THE INJUNCTION WOULD BE MODIFIED APPROPRIATELY. 
THE STATE SUPREME COURT AFFIRMED BY AN EQUALLY DIVIDED VOTE.  HELD:
THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  PP. 115-124. 

1.  THE ALLEGATION OF THE COMPLAINT THAT SUMS EXACTED UNDER THE
AGREEMENT "HAVE BEEN AND ARE AND WILL BE REGULARLY AND CONTINUALLY USED
BY THE DEFENDANT UNIONS TO CARRY ON, FINANCE AND PAY FOR POLITICAL
ACTIVITIES DIRECTLY AT CROSS-PURPOSES WITH THE FREE WILL AND CHOICE OF
THE PLAINTIFFS" SUFFICIENTLY STATED A CAUSE OF ACTION.  PP. 118-119. 

(A)  SECTION 2 ELEVENTH, DENIES THE UNIONS THE POWER, OVER AN
EMPLOYEE'S OBJECTION, TO USE HIS EXACTED FUNDS TO SUPPORT POLITICAL
ACTIVITIES WHICH HE OPPOSES.  INTERNATIONAL ASSN. OF MACHINISTS V.
STREET, 367 U.S. 740.  P. 118. 

(B)  IT WOULD BE IMPRACTICABLE TO REQUIRE A DISSENTING EMPLOYEE TO
ALLEGE AND PROVE EACH DISTINCT UNION POLITICAL EXPENDITURE TO WHICH HE
OBJECTS; IT IS ENOUGH THAT HE MANIFESTS HIS OBJECTION TO ANY POLITICAL
EXPENDITURES BY THE UNION.  P. 118. 

(C)  HOWEVER, DISSENT IS NOT TO BE PRESUMED BUT MUST BE MADE KNOWN TO
THE UNION BY EACH DISSENTING EMPLOYEE; THIS IS NOT A CLASS ACTION; AND
NO PLAINTIFF WHO DOES NOT IN THE COURSE OF THE FURTHER PROCEEDINGS IN
THIS CASE PROVE THAT HE OBJECTS TO SUCH USE WILL BE ENTITLED TO
RELIEF.  PP. 118-119. 

2.  THE TRIAL COURT'S INJUNCTION RELIEVING THE PLAINTIFFS OF ALL
OBLIGATION TO PAY THE MONEYS DUE UNDER THE AGREEMENT WAS IMPROPER, EVEN
THOUGH IT WAS SUBJECT TO MODIFICATION IF THE UNIONS CAME FORWARD AND
PROVED THE PROPORTION OF EXACTED FUNDS REQUIRED FOR PURPOSES GERMANE TO
COLLECTIVE BARGAINING.  PP. 119-120. 

(A)  SUCH A REMEDY IS TOO BROAD AND MIGHT INTERFERE WITH THE
PERFORMANCE BY THE UNIONS OF THOSE FUNCTIONS AND DUTIES WHICH THE
RAILWAY LABOR ACT PLACES UPON THEM TO ATTAIN ITS GOAL OF STABILITY IN
THE INDUSTRY.  P. 120. 

(B)  ON REMAND, THE PLAINTIFFS SHOULD BE GIVEN A REASONABLE TIME IN
WHICH TO PAY TO THE APPROPRIATE UNION ALL SUMS REQUIRED UNDER THE
AGREEMENT, INCLUDING ARREARS, THAT ARE OWING; AND THE ACTION MUST BE
DISMISSED AS TO ANY PLAINTIFF FAILING TO DO THIS.  P. 120. 

3.  AMONG THE PERMISSIBLE REMEDIES FOR DISSENTING EMPLOYEES ARE AN
INJUNCTION AGAINST EXPENDITURE FOR POLITICAL CAUSES OPPOSED BY EACH
COMPLAINING EMPLOYEE OF A SUM, FROM THOSE MONEYS TO BE SPENT BY THE
UNION FOR POLITICAL PURPOSES, WHICH IS SO MUCH OF THE MONEYS EXACTED
FROM THE EMPLOYEE AS IS THE PROPORTION OF THE UNION'S TOTAL
EXPENDITURES MADE FOR SUCH POLITICAL ACTIVITIES TO THE UNION'S TOTAL
BUDGET, AND RESTITUTION OF SUCH A SUM ALREADY EXACTED FROM THE
EMPLOYEES AND EXPENDED BY THE UNION OVER HIS OBJECTION.  IN ORDER TO
FRAME SUCH A DECREE ON REMAND, IT WILL BE NECESSARY TO MAKE
DETERMINATIONS AS TO (1) WHAT EXPENDITURES DISCLOSED BY THE RECORD ARE
POLITICAL, AND (2) WHAT PERCENTAGE OF TOTAL UNION EXPENDITURES ARE
POLITICAL EXPENDITURES; AND THE UNIONS, NOT THE INDIVIDUAL EMPLOYEES,
MUST BEAR THE BURDEN OF PROVING SUCH PROPORTION.  PP. 120-122. 

4.  A PRACTICAL DECREE TO WHICH EACH PLAINTIFF PROVING HIS RIGHT TO
RELIEF WOULD BE ENTITLED WOULD ORDER (1) THE REFUND TO HIM OF A PORTION
OF THE EXACTED FUNDS IN THE SAME PROPORTION THAT UNION POLITICAL
EXPENDITURES BEAR TO TOTAL UNION EXPENDITURES, AND (2) A REDUCTION OF
FUTURE SUCH EXACTIONS FROM HIM BY THE SAME PROPORTION.  PP. 122-124. 

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS
AND STATION EMPLOYES ET AL. V. ALLEN ET AL. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

BY THE TERMS OF AN AGREEMENT (THE AGREEMENT) AUTHORIZED BY SEC. 2
ELEVENTH OF THE RAILWAY LABOR ACT (FN1) BETWEEN THE SOUTHERN RAILWAY
COMPANY AND A NUMBER OF RAILWAY LABOR ORGANIZATIONS INCLUDING THE TWO
PETITIONERS HEREIN, EMPLOYEES OF SOUTHERN ARE OBLIGATED, AS A CONDITION
OF EMPLOYMENT, TO PAY THE PERIODIC DUES, INITIATION FEES AND
ASSESSMENTS UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP IN THE UNION REPRESENTING THEIR PARTICULAR CLASS OR CRAFT. 
(FN2) THE INDIVIDUAL RESPONDENTS HEREIN ARE A NUMBER OF SUCH EMPLOYEES
BELONGING TO CLASSES OR CRAFTS REPRESENTED BY PETITIONERS.  (FN3)  WHEN
THE AGREEMENT WAS ADOPTED RESPONDENTS WERE NOT UNION MEMBERS.  THEY
REFUSED TO PAY PETITIONERS ANY PART OF THE MONEYS REQUIRED UNDER THE
AGREEMENT, INSTEAD BRINGING THIS ACTION IN THE SUPERIOR COURT OF
MECKLENBURG COUNTY, NORTH CAROLINA, TO RESTRAIN ITS ENFORCEMENT.  (FN4)
AFTER A TRIAL THE SUPERIOR COURT GRANTED AN INJUNCTION UPON THE JURY'S
SEPARATE FINDINGS THAT MONEYS EXACTED UNDER THE AGREEMENT WERE USED BY
PETITIONERS FOR PURPOSES NOT REASONABLY NECESSARY OR RELATED TO
COLLECTIVE BARGAINING, NAMELY, (1) TO SUPPORT TO OPPOSE LEGISLATION,
(2) TO INFLUENCE VOTES IN ELECTIONS FOR PUBLIC OFFICE, (3) TO MAKE
CAMPAIGN CONTRIBUTIONS IN SUCH ELECTIONS, (4) TO SUPPORT THE DEATH
BENEFITS SYSTEM OPERATED BY PETITIONER BROTHERHOOD OF RAILWAY CLERKS. 
THE INJUNCTION RESTRAINED PETITIONERS "FROM PLACING ANY COMPULSION OF
ANY NATURE UPON THE RESPONDENTS  ...  WHEREBY THEY  ...  AGAINST THEIR
FREE WILL AND CHOICE WOULD BE REQUIRED TO JOIN THE DEFENDANT UNIONS
...  OR PAY MONEY TO SAID UNIONS."  IT WAS PROVIDED, HOWEVER, THAT UPON
A SHOWING BY PETITIONERS OF THE PROPORTION OF EXPENDITURES FROM EXACTED
FUNDS THAT WAS REASONABLY NECESSARY AND RELATED TO COLLECTIVE
BARGAINING, THE INJUNCTION WOULD BE MODIFIED APPROPRIATELY. 

ON APPEAL, THE SUPREME COURT OF NORTH CAROLINA REVERSED, ALLEN V.
SOUTHERN R. CO., 249 N.C. 491, 107 S.E.2D 125, HOLDING THAT JUDGMENT
FOR PETITIONERS WAS REQUIRED BY OUR DECISION IN RAILWAY EMPLOYES' DEPT.
V. HANSON, 351 U.S. 225, WHERE WE HELD THAT SEC. 2 ELEVENTH WAS A VALID
EXERCISE BY CONGRESS OF ITS POWERS UNDER THE COMMERCE CLAUSE AND DID
NOT VIOLATE THE FIRST AMENDMENT OR THE DUE PROCESS CLAUSE OF THE
FIFTH.  HOWEVER, REHEARING WAS GRANTED, AND PENDING DECISION THEREON WE
DECIDED INTERNATIONAL ASSN. OF MACHINISTS V. STREET, 367 U.S. 740. 
UPON RECONSIDERATION OF THE SUPERIOR COURT'S JUDGMENT IN THE LIGHT OF
THAT DECISION, THE SUPREME COURT OF NORTH CAROLINA DIVIDED EQUALLY,
WHICH HAD THE EFFECT OF AFFIRMING THE LOWER COURT'S JUDGMENT.  256 N.C.
700, 124 S.E.2D 871 (PER CURIAM); SEE SCHOENITH V. TOWN & COUNTRY
REALTY CO., 244 N.C.  601, 94 S.E.2D 592 (PER CURIAM); WARD V. ODELL
MFG. CO., 126 N.C. 946, 36 S.E. 194.  WE GRANTED CERTIORARI, 371 U.S.
875, TO CONSIDER WHETHER THE INJUNCTION GRANTED BY THE SUPERIOR COURT
MIGHT STAND CONSISTENTLY WITH OUR DECISION IN STREET.  WE REVERSE AND
REMAND FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

FIRST.  WE HELD IN STREET "THAT SEC. 2, ELEVENTH IS TO BE CONSTRUED
TO DENY THE UNIONS, OVER AN EMPLOYEE'S OBJECTION, THE POWER TO USE HIS
EXACTED FUNDS TO SUPPORT POLITICAL CAUSES WHICH HE OPPOSES."  367 U.S.,
AT 768-769.  RESPONDENTS' AMENDED COMPLAINT ALLEGES THAT SUMS EXACTED
UNDER THE AGREEMENT "HAVE BEEN AND ARE AND WILL BE REGULARLY AND
CONTINUALLY USED BY THE DEFENDANT UNIONS TO CARRY ON, FINANCE AND PAY
FOR POLITICAL ACTIVITIES DIRECTLY AT CROSS-PURPOSES WITH THE FREE WILL
AND CHOICE OF THE PLAINTIFFS."  THIS ALLEGATION SUFFICIENTLY STATES A
CAUSE OF ACTION.  IT WOULD BE IMPRACTICABLE TO REQUIRE A DISSENTING
EMPLOYEE TO ALLEGE AND PROVE EACH DISTINCT UNION POLITICAL EXPENDITURE
TO WHICH HE OBJECTS; IT IS ENOUGH THAT HE MANIFESTS HIS OPPOSITION TO
ANY POLITICAL EXPENDITURES BY THE UNION.  (FN5)  BUT WE MADE CLEAR IN
STREET THAT "DISSENT IS NOT TO BE PRESUMED - IT MUST AFFIRMATIVELY BE
MADE KNOWN TO THE UNION BY THE DISSENTING EMPLOYEE."  367 U.S., AT
774.  (FN6)  AT TRIAL, ONLY 14 OF THE RESPONDENTS TESTIFIED THAT THEY
OBJECTED TO THE USE OF EXACTED SUMS FOR POLITICAL CAUSES.  NO
RESPONDENT WHO DOES NOT IN THE COURSE OF THE FURTHER PROCEEDINGS IN
THIS CASE PROVE THAT HE OBJECTS TO SUCH USE WILL BE ENTITLED TO
RELIEF.  THIS IS NOT AND CANNOT BE A CLASS ACTION.  SEE NOTE 4, SUPRA.
"THE UNION RECEIVING MONEY EXACTED FROM AN EMPLOYEE UNDER A UNION-SHOP
AGREEMENT SHOULD NOT IN FAIRNESS BE SUBJECTED TO SANCTIONS IN FAVOR OF
AN EMPLOYEE WHO MAKES NO COMPLAINT OF THE USE OF HIS MONEY FOR SUCH
ACTIVITIES."  367 U.S., AT 774. 

SECOND.  WE ALSO HELD IN STREET THAT AN INJUNCTION RELIEVING
DISSENTING EMPLOYEES OF ALL OBLIGATION TO PAY THE MONEYS DUE UNDER AN
AGREEMENT AUTHORIZED BY SEC. 2 ELEVENTH WAS IMPERMISSIBLE.   SUCH
EMPLOYEES "REMAIN OBLIGED, AS A CONDITION OF CONTINUED EMPLOYMENT, TO
MAKE THE PAYMENTS TO THEIR RESPECTIVE UNIONS CALLED FOR BY THE
AGREEMENT.  THEIR  ...  GRIEVANCE STEMS FROM THE SPENDING OF THEIR
FUNDS FOR PURPOSES NOT AUTHORIZED BY THE ACT IN THE FACE OF THEIR
OBJECTION, NOT FROM THE ENFORCEMENT OF THE UNION-SHOP AGREEMENT BY THE
MERE COLLECTION OF FUNDS."  367 U.S., AT 771.  THE INJUNCTION GRANTED
BY THE SUPERIOR COURT WAS THUS IMPROPER, EVEN THOUGH IT IS SUBJECT TO
MODIFICATION IF PETITIONERS COME FORWARD AND PROVE THE PROPORTION OF
EXACTED FUNDS REQUIRED FOR PURPOSES GERMANE TO COLLECTIVE BARGAINING. 
EVEN SUCH A REMEDY, WE THINK, "SWEEPS TOO BROADLY  ... AND MIGHT WELL
INTERFERE WITH THE  ...  UNIONS' PERFORMANCE OF THOSE FUNCTIONS AND
DUTIES WHICH THE RAILWAY LABOR ACT PLACES UPON THEM TO ATTAIN ITS GOAL
OF STABILITY IN THE INDUSTRY."  IBID. 

IT ALSO FOLLOWS FROM STREET THAT THE SUPERIOR COURT ERRED IN GRANTING
RESPONDENTS INTERIM RELIEF AGAINST COMPLIANCE WITH THE FINANCIAL
OBLIGATIONS IMPOSED BY THE AGREEMENT.  AS A RESULT OF THIS RELIEF NONE
OF THE RESPONDENTS HAS TAKEN ANY STEPS TOWARD COMPLIANCE SINCE THE SUIT
WAS INSTITUTED.  WE THINK THAT LEST THE IMPORTANT FUNCTIONS OF LABOR
ORGANIZATIONS UNDER THE RAILWAY LABOR ACT BE UNDULY IMPAIRED,
DISSENTING EMPLOYEES (AT LEAST IN THE ABSENCE OF SPECIAL CIRCUMSTANCES
NOT SHOWN HERE) CAN BE ENTITLED TO NO RELIEF UNTIL FINAL JUDGMENT IN
THEIR FAVOR IS ENTERED.  THEREFORE, ON REMAND RESPONDENTS SHOULD BE
GIVEN A REASONABLE TIME WITHIN WHICH THEY MUST PAY TO THE BARGAINING
REPRESENTATIVE OF THEIR CLASS OR CRAFT ALL SUMS REQUIRED UNDER THE
AGREEMENT, INCLUDING ARREARS, THAT ARE OWING; AS TO ANY RESPONDENT
FAILING TO DO THIS, THE ACTION MUST BE DISMISSED. 

THIRD.  WE SUGGESTED IN STREET THAT AMONG THE PERMISSIBLE REMEDIES
FOR DISSENTING EMPLOYEES WERE "AN INJUNCTION AGAINST EXPENDITURE FOR
POLITICAL CAUSES OPPOSED BY EACH COMPLAINING EMPLOYEE OF A SUM, FROM
THOSE MONEY'S TO BE SPENT BY THE UNION FOR POLITICAL PURPOSES, WHICH IS
SO MUCH OF THE MONEY'S EXACTED FROM HIM AS IS THE PROPORTION OF THE
UNION'S TOTAL EXPENDITURES MADE FOR SUCH POLITICAL ACTIVITIES TO THE
UNION'S TOTAL BUDGET," AND RESTITUTION OF SUCH A SUM ALREADY EXACTED
FROM THE COMPLAINANT AND EXPENDED BY THE UNION OVER HIS OBJECTION.  367
U.S., AT 774-775.  THE NECESSARY PREDICATE FOR SUCH REMEDIES IS A
DIVISION OF THE UNION'S POLITICAL EXPENDITURES FROM THOSE GERMANE TO
COLLECTIVE BARGAINING, SINCE ONLY THE FORMER, TO THE EXTENT MADE FROM
EXACTED FUNDS OF DISSENTERS, ARE NOT AUTHORIZED BY SEC. 2 ELEVENTH. 
BUT AT TRIAL NO EVIDENCE WAS OFFERED BY EITHER SIDE, NOR WAS THE JURY
REQUIRED TO MAKE FINDINGS, AS TO THE TOTAL AMOUNT OF UNION EXPENDITURES
FOR POLITICAL PURPOSES, THE BREAKDOWN OF THE TOTAL UNION BUDGET
ACCORDING TO PARTICULAR KINDS OF EXPENDITURE, OR THE PROPORTION OF
POLITICAL EXPENDITURES IN THE TOTAL UNION BUDGET OF A GIVEN PERIOD. 
(FN7)  ON REMAND, IN ORDER TO FRAME A DECREE EMBODYING THE SUGGESTED
REMEDIES, TWO DETERMINATIONS WILL HAVE TO BE MADE:  (1) WHAT
EXPENDITURES DISCLOSED BY THE RECORD ARE POLITICAL; (2) WHAT PERCENTAGE
OF TOTAL UNION EXPENDITURES ARE POLITICAL EXPENDITURES.  AS TO (1) WE
PRESENTLY INTIMATE NO VIEW, SEE NOTE 7, INFRA, BECAUSE HERE, AS IN
STREET, SEE 367 U.S., AT 768-770, THE COURTS BELOW MADE NO ATTEMPT TO
DRAW THE BOUNDARY BETWEEN POLITICAL EXPENDITURES AND THOSE GERMANE TO
COLLECTIVE BARGAINING, AND IT WOULD BE INAPPROPRIATE FOR THIS COURT TO
DO SO IN THE FIRST INSTANCE AND UPON THE PRESENT RECORD.  AS TO (2) THE
PRESENT RECORD IS INSUFFICIENT TO ENABLE ANY CALCULATION. 

SINCE THE UNIONS POSSESS THE FACTS AND RECORDS FROM WHICH THE
PROPORTION OF POLITICAL TO TOTAL UNION EXPENDITURES CAN REASONABLY BE
CALCULATED, BASIC CONSIDERATIONS OF FAIRNESS COMPEL THAT THEY, NOT THE
INDIVIDUAL EMPLOYEES, BEAR THE BURDEN OF PROVING SUCH PROPORTION. 
ABSOLUTE PRECISION IN THE CALCULATION OF SUCH PROPORTION IS NOT, OF
COURSE, TO BE EXPECTED OR REQUIRED; WE ARE MINDFUL OF THE DIFFICULT
ACCOUNTING PROBLEMS THAT MAY ARISE.  AND NO DECREE WOULD BE PROPER
WHICH APPEARED LIKELY TO INFRINGE THE UNIONS' RIGHT TO EXPEND UNIFORM
EXACTIONS UNDER THE UNION-SHOP AGREEMENT IN SUPPORT OF ACTIVITIES
GERMANE TO COLLECTIVE BARGAINING AND, AS WELL, TO EXPEND NONDISSENTERS'
SUCH EXACTIONS IN SUPPORT OF POLITICAL ACTIVITIES. 

FOURTH.  WHILE ADHERING TO THE PRINCIPLES GOVERNING REMEDY WHICH WE
ANNOUNCED IN STREET, SEE 367 U.S., AT 771-775, WE THINK IT APPROPRIATE
TO SUGGEST, IN ADDITION, A PRACTICAL DECREE TO WHICH EACH RESPONDENT
PROVING HIS RIGHT TO RELIEF WOULD BE ENTITLED.  SUCH A DECREE WOULD
ORDER (1) THE REFUND TO HIM OF A PORTION OF THE EXACTED FUNDS IN THE
SAME PROPORTION THAT UNION POLITICAL EXPENDITURES BEAR TO TOTAL UNION
EXPENDITURES, AND (2) A REDUCTION OF FUTURE SUCH EXACTIONS FROM HIM BY
THE SAME PROPORTION.  WE RECOGNIZE THAT PRACTICAL DIFFICULTIES MAY
ATTEND A DECREE REDUCING AN EMPLOYEE'S OBLIGATIONS UNDER THE UNION-SHOP
AGREEMENT BY A FIXED PROPORTION, SINCE THE PROPORTION OF THE UNION
BUDGET DEVOTED TO POLITICAL ACTIVITIES MAY NOT BE CONSTANT.  THE
DIFFICULTIES IN JUDICIALLY ADMINISTERED RELIEF, ALTHOUGH NOT
INSURMOUNTABLE (A DECREE ONCE ENTERED WOULD OF COURSE BE MODIFIABLE
UPON A SHOWING OF CHANGED CIRCUMSTANCES), SHOULD, WE THINK, ENCOURAGE
PETITIONER UNIONS TO CONSIDER THE ADOPTION BY THEIR MEMBERSHIP OF SOME
VOLUNTARY PLAN BY WHICH DISSENTERS WOULD BE AFFORDED AN INTERNAL UNION
REMEDY.  THERE IS PRECEDENT FOR SUCH A PLAN.  (FN8)  IF A UNION AGREED
UPON A FORMULA FOR ASCERTAINING THE PROPORTION OF POLITICAL
EXPENDITURES IN ITS BUDGET, AND MADE AVAILABLE A SIMPLE PROCEDURE FOR
ALLOWING DISSENTERS TO BE EXCUSED FROM HAVING TO PAY THIS PROPORTION OF
MONEYS DUE FROM THEM UNDER THE UNION-SHOP AGREEMENT, PROLONGED AND
EXPENSIVE LITIGATION MIGHT WELL BE AVERTED.  THE INSTANT ACTION, FOR
EXAMPLE, HAS BEEN BEFORE THE COURTS FOR 10 YEARS AND HAS NOT YET RUN
ITS COURSE.  IT IS A LESSON FOR OUR NATIONAL HISTORY OF INDUSTRIAL
RELATIONS THAT RESORT TO LITIGATION TO SETTLE THE RIGHTS OF LABOR
ORGANIZATIONS AND EMPLOYEES VERY OFTEN PROVES UNSATISFACTORY.  THE
COURTS WILL NOT SHRINK FROM AFFORDING WHAT REMEDIES THEY MAY, WITH DUE
REGARD FOR THE LEGITIMATE INTERESTS OF ALL PARTIES; BUT IT IS
APPROPRIATE TO REMIND THE PARTIES OF THE AVAILABILITY OF MORE PRACTICAL
ALTERNATIVES TO LITIGATION FOR THE VINDICATION OF THE RIGHTS AND
ACCOMMODATION OF INTERESTS HERE INVOLVED.  REVERSED AND REMANDED. 

FN1  SECTION 2 ELEVENTH, 45 U.S.C. SEC. 152 ELEVENTH, PROVIDES IN
PART: 

"NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, OR OF ANY
OTHER STATUTE OR LAW OF THE UNITED STATES, OR TERRITORY THEREOF, OR OF
ANY STATE, ANY CARRIER OR CARRIERS AS DEFINED IN THIS CHAPTER AND A
LABOR ORGANIZATION OR LABOR ORGANIZATIONS DULY DESIGNATED AND
AUTHORIZED TO REPRESENT EMPLOYEES IN ACCORDANCE WITH THE REQUIREMENTS
OF THIS CHAPTER SHALL BE PERMITTED: 

"(A)  TO MAKE AGREEMENTS, REQUIRING, AS A CONDITION OF CONTINUED
EMPLOYMENT, THAT WITHIN SIXTY DAYS FOLLOWING THE BEGINNING OF SUCH
EMPLOYMENT, OR THE EFFECTIVE DATE OF SUCH AGREEMENTS, WHICHEVER IS THE
LATER, ALL EMPLOYEES SHALL BECOME MEMBERS OF THE LABOR ORGANIZATION
REPRESENTING THEIR CRAFT OR CLASS:  PROVIDED, THAT NO SUCH AGREEMENT
SHALL REQUIRE SUCH CONDITION OF EMPLOYMENT WITH RESPECT TO EMPLOYEES TO
WHOM MEMBERSHIP IS NOT AVAILABLE UPON THE SAME TERMS AND CONDITIONS AS
ARE GENERALLY APPLICABLE TO ANY OTHER MEMBER OR WITH RESPECT TO
EMPLOYEES TO WHOM MEMBERSHIP WAS DENIED OR TERMINATED FOR ANY REASON
OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE PERIODIC DUES,
INITIATION FEES, AND ASSESSMENTS (NOT INCLUDING FINES AND PENALTIES)
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP." 

FN2  ALTHOUGH THE AGREEMENT REQUIRES EMPLOYEES TO BECOME UNION
MEMBERS WITHIN THE 60-DAY PERIOD, IN FACT PETITIONERS DO NOT INSIST
THAT EMPLOYEES ACTUALLY JOIN THE UNION, BUT REGARD PAYMENT OF THE
UNIFORM EXACTIONS REQUIRED BY THE AGREEMENT AS COMPLETE COMPLIANCE
THEREWITH. 

FN3  THIS ACTION WAS COMMENCED BY 26 SUCH EMPLOYEES BUT SUBSEQUENT TO
THE FILING OF THE COMPLAINT 11 MORE WERE ADDED AS PLAINTIFFS BY
AMENDMENT THERETO; ALL 37 ARE RESPONDENTS HEREIN.  SOUTHERN, WHICH WAS
A DEFENDANT BELOW BUT DISCLAIMED INTEREST IN THE MERITS OF THE DISPUTE
BETWEEN THE EMPLOYEES AND PETITIONERS AND DID NOT APPEAL THE SUPERIOR
COURT'S JUDGMENT, APPEARS IN THIS COURT AS A RESPONDENT.  IN THIS
OPINION, THE TERM "RESPONDENTS" REFERS ONLY TO THE INDIVIDUAL
RESPONDENTS, AND EXCLUDES SOUTHERN.    FN4  THE ACTION WAS PREDICATED
IN PART ON NORTH CAROLINA'S "RIGHT TO WORK" LAW, WHICH MAKES THE UNION
SHOP UNLAWFUL.  N.C. GEN. STATS., SECS. 95-78 TO 95-84; BUT SEE HUDSON
V. ATLANTIC COAST LINE R. CO., 242 N.C. 650, 89 S.E.2D 441.  THE
COMPLAINT SOUGHT TEMPORARY AND PERMANENT INJUNCTIVE RELIEF ON BEHALF OF
THE NAMED PLAINTIFFS, RESPONDENTS HEREIN, AND ALL OTHER EMPLOYEES
SIMILARLY SITUATED, AGAINST SOUTHERN AND EVERY UNION REPRESENTING
EMPLOYEES OF SOUTHERN.  BUT THE CASE WAS NONSUITED AS TO ALL THE
DEFENDANT UNIONS EXCEPT PETITIONERS WHEN AT TRIAL NO PROOF WAS OFFERED
THAT ANY OF THE PLAINTIFFS BELONGED TO CRAFTS OR CLASSES OTHER THAN
THOSE REPRESENTED BY PETITIONERS.  ALSO, THE RELIEF GRANTED BY THE
SUPERIOR COURT IN ITS FINAL JUDGMENT WAS LIMITED TO "THE PLAINTIFFS,
INDIVIDUALLY NAMED AS SUCH IN THE CAPTION OF THIS CASE."  THIS
LIMITATION WAS OBVIOUSLY PROPER AND INDEED REQUIRED, SINCE THE INSTANT
"ACTION IS NOT A TRUE CLASS ACTION, FOR THERE IS NO ATTEMPT TO PROVE
THE EXISTENCE OF A CLASS OF WORKERS WHO HAD SPECIFICALLY OBJECTED TO
THE EXACTION OF DUES FOR POLITICAL PURPOSES."  INTERNATIONAL ASSN. OF
MACHINISTS V. STREET, 367 U.S. 740, 774; SEE P. 119, INFRA. 

UPON COMMENCEMENT OF THE INSTANT ACTION, THE PLAINTIFFS OBTAINED AN
EX PARTE ORDER TEMPORARILY RESTRAINING ENFORCEMENT OF THE UNION-SHOP
AGREEMENT; AFTER HEARING, THE ORDER WAS CONTINUED IN EFFECT PENDENTE
LITE, ALTHOUGH IT WAS SUBSEQUENTLY MODIFIED TO BE "EFFECTIVE ONLY FOR
THE PROTECTION OF PERSONS WHO ARE INDIVIDUALLY NAMED AS PARTIES
PLAINTIFF HEREIN OR WHO BECOME ADDED BY ORDER OF COURT AS SUCH WITHIN
THIRTY DAYS FROM DATE HEREOF."  EVEN AS MODIFIED, SUCH RELIEF WAS
IMPROPER.  SEE P. 120, INFRA. 

FN5  RESPONDENTS TESTIFIED BEFORE ANY EVIDENCE OF UNION POLITICAL
EXPENDITURES HAD BEEN INTRODUCED AND WERE ASKED HYPOTHETICAL QUESTIONS
SUCH AS THE FOLLOWING:  "IF THE EVIDENCE SHOULD SHOW THAT THE MONEY
WHICH YOU MIGHT BE COMPELLED TO PAY TO THE UNION WOULD BE USED IN PART
TO INFLUENCE THE PASSAGE OF LAWS, OR TO DEFEAT THE PASSAGE OF
LEGISLATION, OR TO INFLUENCE THE ELECTION OF CERTAIN CANDIDATES AND
DEFEAT THE ELECTION OF OTHER CANDIDATES, WHAT IS YOUR POSITION WITH
RESPECT TO SUCH USES OF YOUR MONEY?"  THE ANSWER TO THIS PARTICULAR
QUESTION WAS TYPICAL OF RESPONDENTS' TESTIMONY: "I AM OPPOSED TO IT.  I
AM OPPOSED TO USE OF MY MONEY TO INFLUENCE THE PASSAGE OF LAWS OR
EFFECT THE ELECTION OF CANDIDATES BECAUSE I THINK THAT AS INDIVIDUALS
WE SHOULD HAVE THE RIGHT TO MAKE OUR OWN DECISIONS ABOUT SUCH
MATTERS."  SOME PLAINTIFFS, HOWEVER, TESTIFIED SOMEWHAT MORE
SPECIFICALLY. 

IN HOLDING RESPONDENTS' ALLEGATIONS AND TESTIMONY ADEQUATELY
SPECIFIC, WE ARE NOT INCONSISTENT WITH THE PLURALITY OPINION IN LATHROP
V. DONOHUE, 367 U.S. 820, 845-846, WHERE IT WAS OBSERVED, IN CONCLUDING
THAT THE QUESTION OF THE CONSTITUTIONALITY OF THE INTEGRATED BAR WAS
NOT YET RIPE FOR DECISION, THAT "NOWHERE ARE WE CLEARLY APPRISED AS TO
THE VIEWS OF THE APPELLANT ON ANY PARTICULAR LEGISLATIVE ISSUES ON
WHICH THE STATE BAR HAS TAKEN A POSITION  ...  ."  THIS OBSERVATION WAS
MADE IN THE CONTEXT OF CONSTITUTIONAL ADJUDICATION, NOT STATUTORY AS
HERE. 

FN6  RESPONDENTS FIRST MADE KNOWN THEIR OBJECTION TO THE PETITIONERS'
POLITICAL EXPENDITURES IN THEIR COMPLAINT FILED IN THIS ACTION;
HOWEVER, THIS WAS EARLY ENOUGH.  STREET, 367 U.S., AT 771. 

FN7  WE DO CONCLUDE, HOWEVER, WITHOUT NECESSARILY FINDING ALL THE
QUESTIONS PUT TO THE JURY PROPER FOR THE PURPOSE OF DISTINGUISHING
POLITICAL EXPENDITURES FROM THOSE GERMANE TO COLLECTIVE BARGAINING, SEE
P. 117, SUPRA, OR ALL THE ANSWERS ADEQUATELY SUPPORTED BY THE EVIDENCE,
THAT THE VERDICT, FAIRLY READ, CONSTITUTES A FINDING FOR WHICH THERE IS
ADEQUATE SUPPORT IN THE RECORD THAT PETITIONERS USE A PART OF THE
EXACTED FUNDS IN SUPPORT OF POLITICAL CAUSES. 

FN8  SEE TRADE UNION ACT OF 1913, 2 & 3 GEO. V, C. 30, REENACTED BY
TRADE DISPUTES AND TRADE UNIONS ACT, 1946, 9 & 10 GEO. VI, C. 52;
COMMENT, 19 U. OF CHI.  L. REV. 371, 381-388 (1952); ROTHSCHILD,
GOVERNMENT REGULATION OF TRADE UNIONS IN GREAT BRITAIN:  II, 38 COL. L.
REV. 1335, 1360-1366 (1938).  PERTINENT PORTIONS OF THE ACT ARE SET OUT
IN AN APPENDIX AT THE END OF THIS OPINION.  ALTHOUGH THE ACT IS A
LEGISLATIVE SOLUTION TO THE PROBLEM OF DISSENTERS' RIGHTS, IT MIGHT BE
POSSIBLE FOR UNIONS TO ADOPT THE SUBSTANTIAL EQUIVALENT WITHOUT
LEGISLATION; WE DO NOT MEAN TO SUGGEST, HOWEVER, THAT THE ACT PROVIDES
A PERFECT MODEL FOR A PLAN THAT WOULD CONFORM WITH THE DISCUSSION IN
THIS OPINION AND IN STREET, NOR THAT ALL ASPECTS OF THE ENGLISH ACT ARE
ESSENTIAL, FOR EXAMPLE THE ACTUAL SEGREGATION OF POLITICAL FUNDS, NOR
THAT THE PARTICULAR BOUNDARY DRAWN BY THE ACT BETWEEN POLITICAL
EXPENDITURES AND THOSE GERMANE TO COLLECTIVE BARGAINING IS NECESSARILY
SOUND.  IT MAY BE NOTED THAT ONE POSSIBLE SOLUTION TO THE PROBLEM OF
FLUCTUATING UNION POLITICAL EXPENDITURES, SEE P. 122, SUPRA, MIGHT BE
ADOPTION BY THE UNION OF A PROPORTION CALCULATED ON THE BASIS NOT OF
PRESENT POLITICAL EXPENDITURES BUT PROJECTED FUTURE SUCH EXPENDITURES,
SO AS TO ANTICIPATE POSSIBLE FLUCTUATIONS, WITH THE DISSENTING EMPLOYEE
FREE TO CONTRACT OUT OF THIS PROPORTION OF HIS DUES AND FEES. 
ALTERNATIVELY, UNIONS MIGHT CONSIDER ACTUALLY FIXING A PERCENTAGE
CEILING OF POLITICAL EXPENDITURES, FROM WHICH PROPORTION DISSENTERS
COULD CONTRACT OUT.  ON THE PROBLEM OF REMEDIES, SEE GENERALLY
MCALISTER, LABOR, LIBERALISM AND MAJORITARIAN DEMOCRACY, 31 FORD.  L.
REV. 661, 687-693 (1963).  CF. DUDRA, APPROACHES TO UNION SECURITY IN
SWITZERLAND, CANADA, AND COLOMBIA, 86 MONTHLY LAB.  REV.  136 (1963). 

MR. JUSTICE BLACK, WHILE ADHERING TO THE VIEWS HE EXPRESSED IN
INTERNATIONAL ASSN. OF MACHINISTS V. STREET, 367 U.S. 740, 780-797,
CONCURS IN THE JUDGMENT AND OPINION OF THE COURT IN THIS CASE BECAUSE
HE BELIEVES BOTH ARE IN ACCORD WITH THE HOLDING AND OPINION OF THE
COURT IN THE STREET CASE. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.  (FOR OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 129.) 

                APPENDIX TO OPINION OF THE COURT. 

THE TRADE UNION ACT OF 1913, 2 & 3 GEO. V, C. 30, READS IN PART AS
FOLLOWS: 

3.  - (1)  THE FUNDS OF A TRADE UNION SHALL NOT BE APPLIED EITHER
DIRECTLY OR IN CONJUNCTION WITH ANY OTHER TRADE UNION, ASSOCIATION, OR
BODY, OR OTHERWISE INDIRECTLY, IN THE FURTHERANCE OF THE POLITICAL
OBJECTS TO WHICH THIS SECTION APPLIES (WITHOUT PREJUDICE TO THE
FURTHERANCE OF ANY OTHER POLITICAL OBJECTS), UNLESS THE FURTHERANCE OF
THOSE OBJECTS HAS BEEN APPROVED AS AN OBJECT OF THE UNION BY A
RESOLUTION FOR THE TIME BEING IN FORCE PASSED ON A BALLOT OF THE
MEMBERS OF THE UNION TAKEN IN ACCORDANCE WITH THIS ACT FOR THE PURPOSE
BY A MAJORITY OF THE MEMBERS VOTING; AND WHERE SUCH A RESOLUTION IS IN
FORCE, UNLESS RULES, TO BE APPROVED, WHETHER THE UNION IS REGISTERED OR
NOT, BY THE REGISTRAR OF FRIENDLY SOCIETIES, ARE IN FORCE PROVIDING: 

(A)  THAT ANY PAYMENTS IN THE FURTHERANCE OF THOSE OBJECTS ARE TO BE
MADE OUT OF A SEPARATE FUND (IN THIS ACT REFERRED TO AS THE POLITICAL
FUND OF THE UNION), AND FOR THE EXEMPTION IN ACCORDANCE WITH THIS ACT
OF ANY MEMBER OF THE UNION FROM ANY OBLIGATION TO CONTRIBUTE TO SUCH A
FUND IF HE GIVES NOTICE IN ACCORDANCE WITH THIS ACT THAT HE OBJECTS TO
CONTRIBUTE; AND: 

(B)  THAT A MEMBER WHO IS EXEMPT FROM THE OBLIGATION TO CONTRIBUTE TO
THE POLITICAL FUND OF THE UNION SHALL NOT BE EXCLUDED FROM ANY BENEFITS
OF THE UNION, OR PLACED IN ANY RESPECT EITHER DIRECTLY OR INDIRECTLY
UNDER ANY DISABILITY OR AT ANY DISADVANTAGE AS COMPARED WITH OTHER
MEMBERS OF THE UNION (EXCEPT IN RELATION TO THE CONTROL OR MANAGEMENT
OF THE POLITICAL FUND) BY REASON OF HIS BEING SO EXEMPT, AND THAT
CONTRIBUTION TO THE POLITICAL FUND OF THE UNION SHALL NOT BE MADE A
CONDITION FOR ADMISSION TO THE UNION. 

(2)  IF ANY MEMBER OF A TRADE UNION ALLEGES THAT HE IS AGGRIEVED BY A
BREACH OF ANY RULE MADE IN PURSUANCE OF THIS SECTION, HE MAY COMPLAIN
TO THE REGISTRAR OF FRIENDLY SOCIETIES, AND THE REGISTRAR OF FRIENDLY
SOCIETIES, AFTER GIVING THE COMPLAINANT AND ANY REPRESENTATIVE OF THE
UNION AN OPPORTUNITY OF BEING HEARD, MAY, IF HE CONSIDERS THAT SUCH A
BREACH HAS BEEN COMMITTED, MAKE SUCH ORDER FOR REMEDYING THE BREACH AS
HE THINKS JUST UNDER THE CIRCUMSTANCES; AND ANY SUCH ORDER OF THE
REGISTRAR SHALL BE BINDING AND CONCLUSIVE ON ALL PARTIES WITHOUT APPEAL
AND SHALL NOT BE REMOVABLE INTO ANY COURT OF LAW OR RESTRAINABLE BY
INJUNCTION, AND ON BEING RECORDED IN THE COUNTY COURT, MAY BE ENFORCED
AS IF IT HAD BEEN AN ORDER OF THE COUNTY COURT  ...  . 

(3)  THE POLITICAL OBJECTS TO WHICH THIS SECTION APPLIES ARE THE
EXPENDITURES OF MONEY: 

(A)  ON THE PAYMENT OF ANY EXPENSES INCURRED EITHER DIRECTLY OR
INDIRECTLY BY A CANDIDATE OR PROSPECTIVE CANDIDATE FOR ELECTION TO
PARLIAMENT OR TO ANY PUBLIC OFFICE, BEFORE, DURING, OR AFTER THE
ELECTION IN CONNEXION WITH HIS CANDIDATURE OR ELECTION; OR: 

(B)  ON THE HOLDING OF ANY MEETING OR THE DISTRIBUTION OF ANY
LITERATURE OR DOCUMENTS IN SUPPORT OF ANY SUCH CANDIDATE OR PROSPECTIVE
CANDIDATE; OR: 

(C)  ON THE MAINTENANCE OF ANY PERSON WHO IS A MEMBER OF PARLIAMENT
OR WHO HOLDS A PUBLIC OFFICE; OR: 

(D)  IN CONNECTION WITH THE REGISTRATION OF ELECTORS OR THE SELECTION
OF A CANDIDATE FOR PARLIAMENT OR ANY PUBLIC OFFICE; OR: 

(E)  ON THE HOLDING OF POLITICAL MEETINGS OF ANY KIND, OR ON THE
DISTRIBUTION OF POLITICAL LITERATURE OR POLITICAL DOCUMENTS OF ANY
KIND, UNLESS THE MAIN PURPOSE OF THE MEETINGS OR OF THE DISTRIBUTION OF
THE LITERATURE OR DOCUMENTS IS THE FURTHERANCE OF STATUTORY OBJECTS
WITHIN THE MEANING OF THIS ACT. 

THE EXPRESSION "PUBLIC OFFICE" IN THIS SECTION MEANS THE OFFICE OF
MEMBER OF ANY COUNTY, COUNTY BOROUGH, DISTRICT, OR PARISH COUNCIL, OR
BOARD OF GUARDIANS, OR OF ANY PUBLIC BODY WHO HAVE POWER TO RAISE
MONEY, EITHER DIRECTLY OR INDIRECTLY, BY MEANS OF A RATE. 

(4)  A RESOLUTION UNDER THIS SECTION APPROVING POLITICAL OBJECTS AS
AN OBJECT OF THE UNION SHALL TAKE EFFECT AS IF IT WERE A RULE OF THE
UNION AND MAY BE RESCINDED IN THE SAME MANNER AND SUBJECT TO THE SAME
PROVISIONS AS SUCH A RULE. 

(5)  THE PROVISIONS OF THIS ACT AS TO THE APPLICATION OF THE FUNDS OF
A UNION FOR POLITICAL PURPOSES SHALL APPLY TO A UNION WHICH IS IN WHOLE
OR IN PART AN ASSOCIATION OR COMBINATION OF OTHER UNIONS AS IF THE
INDIVIDUAL MEMBERS OF THE COMPONENT UNIONS WERE THE MEMBERS OF THAT
UNION AND NOT THE UNIONS; BUT NOTHING IN THIS ACT SHALL PREVENT ANY
SUCH COMPONENT UNION FROM COLLECTING FROM ANY OF THEIR MEMBERS WHO ARE
NOT EXEMPT ON BEHALF OF THE ASSOCIATION OR COMBINATION ANY
CONTRIBUTIONS TO THE POLITICAL FUND OF THE ASSOCIATION OR COMBINATION. 

4.  - (1)  A BALLOT FOR THE PURPOSES OF THIS ACT SHALL BE TAKEN IN
ACCORDANCE WITH RULES OF THE UNION TO BE APPROVED FOR THE PURPOSE,
WHETHER THE UNION IS REGISTERED OR NOT, BY THE REGISTRAR OF FRIENDLY
SOCIETIES, BUT THE REGISTRAR OF FRIENDLY SOCIETIES SHALL NOT APPROVE
ANY SUCH RULES UNLESS HE IS SATISFIED THAT EVERY MEMBER HAS AN EQUAL
RIGHT, AND, IF REASONABLY POSSIBLE, A FAIR OPPORTUNITY OF VOTING, AND
THAT THE SECRECY OF THE BALLOT IS PROPERLY SECURED. 

(2)  IF THE REGISTRAR OF FRIENDLY SOCIETIES IS SATISFIED, AND
CERTIFIES, THAT RULES FOR THE PURPOSE OF A BALLOT UNDER THIS ACT OR
RULES MADE FOR OTHER PURPOSES OF THIS ACT WHICH REQUIRE APPROVAL BY THE
REGISTRAR, HAVE BEEN APPROVED BY A MAJORITY OF MEMBERS OF A TRADE
UNION, WHETHER REGISTERED OR NOT, VOTING FOR THE PURPOSE, OR BY A
MAJORITY OF DELEGATES OF SUCH A TRADE UNION VOTING AT A MEETING CALLED
FOR THE PURPOSE, THOSE RULES SHALL HAVE EFFECT AS RULES OF THE UNION,
NOTWITHSTANDING THAT THE PROVISIONS OF THE RULES OF THE UNION AS TO THE
ALTERATION OF RULES OR THE MAKING OF NEW RULES HAVE NOT BEEN COMPLIED
WITH. 

5.  - (1)  A MEMBER OF A TRADE UNION MAY AT ANY TIME GIVE NOTICE, IN
THE FORM SET OUT IN THE SCHEDULE TO THIS ACT OR IN A FORM TO THE LIKE
EFFECT, THAT HE OBJECTS TO CONTRIBUTE TO THE POLITICAL FUND OF THE
UNION, AND, ON THE ADOPTION OF A RESOLUTION OF THE UNION APPROVING THE
FURTHERANCE OF POLITICAL OBJECTS AS AN OBJECT OF THE UNION, NOTICE
SHALL BE GIVEN TO THE MEMBERS OF THE UNION ACQUAINTING THEM THAT EACH
MEMBER HAS A RIGHT TO BE EXEMPT FROM CONTRIBUTING TO THE POLITICAL FUND
OF THE UNION, AND THAT A FORM OF EXEMPTION NOTICE CAN BE OBTAINED BY OR
ON BEHALF OF A MEMBER EITHER BY APPLICATION AT OR BY POST FROM THE HEAD
OFFICE OR ANY BRANCH OFFICE OF THE UNION OR THE OFFICE OF THE REGISTRAR
OF FRIENDLY SOCIETIES. 

ANY SUCH NOTICE TO MEMBERS OF THE UNION SHALL BE GIVEN IN ACCORDANCE
WITH RULES OF THE UNION APPROVED FOR THE PURPOSE BY THE REGISTRAR OF
FRIENDLY SOCIETIES, HAVING REGARD IN EACH CASE TO THE EXISTING PRACTICE
AND TO THE CHARACTER OF THE UNION. 

(2)  ON GIVING NOTICE IN ACCORDANCE WITH THIS ACT OF HIS OBJECTION TO
CONTRIBUTE, A MEMBER OF THE UNION SHALL BE EXEMPT, SO LONG AS HIS
NOTICE IS NOT WITHDRAWN, FROM CONTRIBUTING TO THE POLITICAL FUND OF THE
UNION AS FROM THE FIRST DAY OF JANUARY NEXT AFTER THE NOTICE IS GIVEN,
OR, IN THE CASE OF A NOTICE GIVEN WITHIN ONE MONTH AFTER THE NOTICE
GIVEN TO MEMBERS UNDER THIS SECTION ON THE ADOPTION OF A RESOLUTION
APPROVING THE FURTHERANCE OF POLITICAL OBJECTS, AS FROM THE DATE ON
WHICH THE MEMBER'S NOTICE IS GIVEN. 

6. EFFECT MAY BE GIVEN TO THE EXEMPTION OF MEMBERS TO CONTRIBUTE TO
THE POLITICAL FUND OF A UNION EITHER BY A SEPARATE LEVY OF
CONTRIBUTIONS TO THAT FUND FROM THE MEMBERS OF THE UNION WHO ARE NOT
EXEMPT, AND IN THAT CASE THE RULES SHALL PROVIDE THAT NO MONEYS OF THE
UNION OTHER THAN THE AMOUNT RAISED BY SUCH SEPARATE LEVY SHALL BE
CARRIED TO THAT FUND, OR BY RELIEVING ANY MEMBERS WHO ARE EXEMPT FROM
THE PAYMENT OF THE WHOLE OR ANY PART OF ANY PERIODICAL CONTRIBUTIONS
REQUIRED FROM THE MEMBERS OF THE UNION TOWARDS THE EXPENSES OF THE
UNION, AND IN THAT CASE THE RULES SHALL PROVIDE THAT THE RELIEF SHALL
BE GIVEN AS FAR AS POSSIBLE TO ALL MEMBERS WHO ARE EXEMPT ON THE
OCCASION OF THE SAME PERIODICAL PAYMENT AND FOR ENABLING EACH MEMBER OF
THE UNION TO KNOW AS RESPECTS ANY SUCH PERIODICAL CONTRIBUTION, WHAT
PORTION, IF ANY, OF THE SUM PAYABLE BY HIM IS A CONTRIBUTION TO THE
POLITICAL FUND OF THE UNION.           *         *         *         *
  *

                         SCHEDULE. 

     FORM OF EXEMPTION NOTICE. 

NAME OF TRADE UNION 

POLITICAL FUND (EXEMPTION NOTICE). 

I HEREBY GIVE NOTICE THAT I OBJECT TO CONTRIBUTE TO THE POLITICAL
FUND OF THE............UNION, AND AM IN CONSEQUENCE EXEMPT, IN MANNER
PROVIDED BY THE TRADE UNION ACT, 1913, FROM CONTRIBUTING TO THAT FUND. 

                                 A. B.

                 ADDRESS

DAY OF          19 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH THE REVERSAL OF THE INTERIM AND QUALIFIED PERMANENT
RELIEF THAT WAS GRANTED BY THE STATE COURTS RESPECTING THE OBLIGATION
TO PAY UNION DUES.  BUT I DISAGREE WITH WHAT IN EFFECT AMOUNTS TO AN
AFFIRMANCE OF THE STATE JUDGMENT IN OTHER RESPECTS.  I BELIEVE THAT
DISMISSAL OF THIS ACTION IN ITS ENTIRETY IS CALLED FOR. 

INTERNATIONAL ASSN. OF MACHINISTS V. STREET, 367 U.S. 740, DECIDED
ONLY TWO YEARS AGO, STATED IN UNMISTAKABLE TERMS THAT A PLAINTIFF
CLAIMING RELIEF IN AN ACTION OF THIS KIND MUST SHOW TWO THINGS: (1)
THAT HE HAD MADE KNOWN TO THE UNION THE PARTICULAR POLITICAL CANDIDATES
OR CAUSES FOR WHOSE SUPPORT HE DID NOT WISH HIS UNION DUES USED; (2)
THAT MEMBERSHIP DUES HAD BEEN USED FOR SUCH PURPOSES. 

THE STATEMENT OF THESE PRINCIPLES WAS REINFORCED ON THE VERY SAME DAY
IN LATHROP V. DONOHUE, 367 U.S. 820, THE WISCONSIN INTEGRATED BAR CASE,
WHERE A PLURALITY OF THE COURT SAID (AT 845-846): 

"EVEN IF THE DEMURRER IS TAKEN AS ADMITTING ALL THE FACTUAL
ALLEGATIONS OF THE COMPLAINT, EVEN IF THESE ALLEGATIONS ARE CONSTRUED
MOST EXPANSIVELY, AND EVEN IF, LIKE THE WISCONSIN SUPREME COURT, WE
TAKE JUDICIAL NOTICE OF THE POLITICAL ACTIVITIES OF THE STATE BAR,
STILL WE THINK THAT THE ISSUE OF IMPINGEMENT UPON RIGHTS OF FREE SPEECH
THROUGH THE USE OF EXACTED DUES IS NO MORE CONCRETELY PRESENTED FOR
ADJUDICATION THAN IT WAS IN HANSON (351 U.S. 225).  COMPARE
INTERNATIONAL ASSOCIATION OF MACHINISTS V. STREET, ANTE, P. 740, AT PP.
747-749.  NOWHERE ARE WE CLEARLY APPRISED AS TO THE VIEWS OF THE
APPELLANT ON ANY PARTICULAR LEGISLATIVE ISSUES ON WHICH THE STATE BAR
HAS TAKEN A POSITION, OR AS TO THE WAY IN WHICH AND THE DEGREE TO WHICH
FUNDS COMPULSORILY EXACTED FROM ITS MEMBERS ARE USED TO SUPPORT THE
OGRANIZATION'S POLITICAL ACTIVITIES."  SEE ALSO WHAT FOLLOWS AT PP. 846
848. 

THESE REQUIREMENTS HAVE NOT BEEN MET IN THIS CASE.  AT BEST ALL THAT
HAS BEEN ALLEGED OR PROVED IS THAT THE UNION WILL EXPEND A PART OF EACH
RESPONDENT'S STILL-UNPAID MEMBERSHIP DUES FOR SO-CALLED POLITICAL OR
OTHER PURPOSES NOT CONNECTED WITH COLLECTIVE BARGAINING, AND THAT EACH
RESPONDENT WOULD OBJECT TO THE USE OF ANY PART OF HIS DUES FOR MATTERS
OTHER THAN THOSE RELATING TO COLLECTIVE BARGAINING.  NONE OF THE
RESPONDENTS WHO TESTIFIED COULD SPECIFY ANY PARTICULAR EXPENDITURE, OR
EVEN CLASS OF EXPENDITURE, TO WHICH HE OBJECTED. 

I DO NOT UNDERSTAND HOW, CONSISTENTLY WITH STREET, THE COURT CAN NOW
HOLD THAT "IT IS ENOUGH THAT ...  A UNION MEMBER MANIFESTS HIS
OPPOSITION TO ANY POLITICAL EXPENDITURES BY THE UNION" (ANTE, P. 118),
OR HOW IT CAN SAY THAT IN SO HOLDING "WE ARE NOT INCONSISTENT WITH"
WHAT THE PLURALITY WAS AT SUCH PAINS TO POINT OUT IN LATHROP (ALBEIT IN
A CONSTITUTIONAL CONTEXT), ID., NOTE 5.  THE TRUTH OF THE MATTER IS
THAT THE COURT HAS DEPARTED FROM THE STRICT SUBSTANTIVE LIMITATIONS OF
STREET AND HAS GIVEN THEM (AND, AS I SEE IT, ALSO THAT CASES'S REMEDIAL
LIMITATIONS, COMPARE 367 U.S., AT 772-775, 778-779, 779-780, 796-797,
WITH ANTE, P. 122-123 AND APPENDIX) AN EXPANSIVE THRUST WHICH CAN
HARDLY FAIL TO INCREASE THE VOLUME OF THIS SORT OF LITIGATION IN THE
FUTURE. 

BELIEVING THAT OUR DECISIONS SHOULD HAVE MORE LASTING POWER THAN HAS
BEEN ACCORDED STREET, I MUST RESPECTFULLY DISSENT.  I WOULD REVERSE THE
JUDGMENT AND REMAND THE CASE FOR DISMISSAL OF THE COMPLAINT. 
..END :















FLORIDA LIME & AVOCADO GROWERS, INC. V. PAUL 373 U.S. 132 


NO. 45.  ARGUED JANUARY 8, 1963.  - DECIDED MAY 13, 1963.* - 197 F.
SUPP. 780, AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

*TOGETHER WITH NO. 49, PAUL, DIRECTOR OF THE DEPARTMENT OF
AGRICULTURE OF CALIFORNIA, ET AL. V. FLORIDA LIME & AVOCADO GROWERS
INC., ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


APPELLANTS, WHO ARE ENGAGED IN THE BUSINESS OF GROWING, PACKING AND
MARKETING FLORIDA AVOCADOS IN INTERSTATE COMMERCE, SUED IN A FEDERAL
DISTRICT COURT TO ENJOIN APPELLEES, STATE OFFICERS OF CALIFORNIA, FROM
ENFORCING SEC. 792 OF THE CALIFORNIA AGRICULTURAL CODE, WHICH PROHIBITS
THE TRANSPORTATION OR SALE IN CALIFORNIA OF AVOCADOS CONTAINING LESS
THAN 8% OF OIL BY WEIGHT, AGAINST FLORIDA AVOCADOS CERTIFIED AS MATURE
UNDER FEDERAL REGULATIONS ISSUED UNDER THE FEDERAL AGRICULTURAL
MARKETING AGREEMENT ACT OF 1937.  THEY CONTENDED THAT SEC. 792 OF THE
CALIFORNIA STATUTE, AS SO APPLIED, WAS UNCONSTITUTIONAL, BECAUSE (1)
UNDER THE SUPREMACY CLAUSE, IT MUST BE DEEMED DISPLACED BY THE FEDERAL
STANDARD FOR DETERMINING THE MATURITY OF AVOCADOS GROWN IN FLORIDA; (2)
ITS APPLICATION TO FLORIDA AVOCADOS DENIED APPELLANTS THE EQUAL
PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT; AND
(3) ITS APPLICATION TO THEM UNREASONABLY BURDENED OR DISCRIMINATED
AGAINST INTERSTATE MARKETING OF FLORIDA AVOCADOS IN VIOLATION OF THE
COMMERCE CLAUSE.  A THREE-JUDGE DISTRICT COURT CONVENED TO HEAR THE
CASE DENIED AN INJUNCTION, ON THE GROUND THAT THE PROOFS DID NOT
ESTABLISH THAT APPLICATION OF SEC. 792 TO FLORIDA AVOCADOS VIOLATED ANY
PROVISION OF THE FEDERAL CONSTITUTION.  HELD: 

1.  SECTION 792 IS NOT INVALID UNDER THE SUPREMACY CLAUSE, BECAUSE
THERE IS NEITHER SUCH ACTUAL CONFLICT BETWEEN THE TWO SCHEMES OF
REGULATION THAT BOTH CANNOT STAND IN THE SAME AREA, NOR IS THERE
EVIDENCE OF A CONGRESSIONAL DESIGN TO PREEMPT THE FIELD.  PP. 141-152. 

(A)  THE PRESENT RECORD DEMONSTRATES NO INEVITABLE COLLISION BETWEEN
THE TWO SCHEMES OF REGULATION, DESPITE THE DISSIMILARITY OF THE
STANDARDS.  PP. 142-143. 

(B)  THE SUBJECT MATTER OF THE CALIFORNIA REGULATION, WHILE NOT
CONCERNED WITH HEALTH OR SAFETY, IS ONE TRADITIONALLY WITHIN THE SCOPE
OF THE POWER OF THE STATES TO PREVENT DECEPTION OF CONSUMERS IN THE
RETAIL MARKETING OF FOODSTUFFS.  PP. 143-146. 

(C)  NEITHER THE TERMS NOR THE HISTORY OF THE FEDERAL AGRICULTURAL
MARKETING AGREEMENT ACT OF 1937 DISCLOSES A CONGRESSIONAL INTENT TO
DISPLACE TRADITIONAL STATE POWERS TO REGULATE THE RETAIL DISTRIBUTION
OF AGRICULTURAL COMMODITIES.  PP. 146-152. 

2.  SECTION 792 DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, BECAUSE IT DOES NOT WORK AN IRRATIONAL
DISCRIMINATION BETWEEN PERSONS OR GROUPS OF PERSONS.  P. 152. 

3.  THE FINDINGS OF THE DISTRICT COURT WITH RESPECT TO THE EFFECT OF
SEC. 792 UPON INTERSTATE COMMERCE CANNOT BE REVIEWED BECAUSE OF
SUBSTANTIAL UNCERTAINTY AS TO THE CONTENT OF THE RECORD ON WHICH THOSE
FINDINGS WERE PREDICATED.  THEREFORE, THE JUDGMENT IS REVERSED IN THIS
RESPECT AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL
OF APPELLANT'S CONTENTIONS THAT SEC. 792 UNREASONABLY BURDENS OR
DISCRIMINATES AGAINST INTERSTATE COMMERCE IN FLORIDA AVOCADOS.  PP. 152
156. 

4.  SINCE THE APPELLANTS SHOWED SUFFICIENT INJURY TO WARRANT AT LEAST
A TRIAL OF THEIR ALLEGATIONS, THE DISTRICT COURT PROPERLY REFUSED TO
DISMISS THE COMPLAINT FOR WANT OF EQUITY JURISDICTION.  PP. 157-159. 

FLORIDA LIME & AVOCADO GROWERS, INC., ET AL. V. PAUL, DIRECTOR OF THE
DEPARTMENT OF AGRICULTURE OF CALIFORNIA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

MATURITY OF AVOCADOS BY OIL CONTENT, PROHIBITS THE TRANSPORTATION OR
SALE IN CALIFORNIA OF AVOCADOS WHICH CONTAIN "LESS THAN 8 PER CENT OF
OIL, BY WEIGHT  ...  EXCLUDING THE SKIN AND SEED."  (FN1)  IN CONTRAST,
FEDERAL MARKETING ORDERS APPROVED BY THE SECRETARY OF AGRICULTURE GAUGE
THE MATURITY OF AVOCADOS GROWN IN FLORIDA BY STANDARDS WHICH ATTRIBUTE
NO SIGNIFICANCE TO OIL CONTENT.  (FN2)  THIS CASE PRESENTS THE QUESTION
OF THE CONSTITUTIONALITY OF THE CALIFORNIA STATUTE INSOFAR AS IT MAY BE
APPLIED TO EXCLUDE FROM CALIFORNIA MARKETS CERTAIN FLORIDA AVOCADOS
WHICH, ALTHOUGH CERTIFIED TO BE MATURE UNDER THE FEDERAL REGULATIONS,
DO NOT UNIFORMLY MEET THE CALIFORNIA REQUIREMENT OF 8% OF OIL. 

APPELLANTS IN NO. 45, GROWERS AND HANDLERS OF AVOCADOS IN FLORIDA,
BROUGHT THIS ACTION IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA TO ENJOIN THE ENFORCEMENT OF SEC. 792 AGAINST FLORIDA
AVOCADOS CERTIFIED AS MATURE UNDER THE FEDERAL REGULATIONS.  APPELLANTS
CHALLENGED THE CONSTITUTIONALITY OF THE STATUTE ON THREE GROUNDS:  (1)
THAT UNDER THE SUPREMACY CLAUSE, ART. VI, THE CALIFORNIA STANDARD MUST
BE DEEMED DISPLACED BY THE FEDERAL STANDARD FOR DETERMINING THE
MATURITY OF AVOCADOS GROWN IN FLORIDA; (2) THAT THE APPLICATION OF THE
CALIFORNIA STATUTE TO FLORIDA-GROWN AVOCADOS DENIED APPELLANTS THE
EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT;
(3) THAT ITS APPLICATION UNREASONABLY BURDENED OR DISCRIMINATED AGAINST
INTERSTATE MARKETING OF FLORIDA-GROWN AVOCADOS IN VIOLATION OF THE
COMMERCE CLAUSE, ART. I, SEC. 8.  A THREE-JUDGE DISTRICT COURT
INITIALLY DISMISSED THE COMPLAINT.  169 F. SUPP. 774.  ON DIRECT APPEAL
WE HELD, FLORIDA LIME & AVOCADO GROWERS, INC., V. JACOBSEN, 362 U.S.
73, THAT THE SUIT WAS ONE FOR A THREE-JUDGE COURT UNDER 28 U.S.C. SEC.
2281, AND PRESENTED A JUSTICIABLE CONTROVERSY TO BE TRIED ON THE
MERITS.  AFTER A TRIAL THE THREE-JUDGE COURT DENIED AN INJUNCTION
AGAINST THE ENFORCEMENT OF SEC. 792, ON THE GROUND THAT THE PROOFS DID
NOT ESTABLISH THAT ITS APPLICATION TO FLORIDA-GROWN AVOCADOS VIOLATED
ANY PROVISION OF THE FEDERAL CONSTITUTION.  197 F. SUPP. 780.  THE
DISTRICT COURT HELD FOR SEVERAL REASONS THAT THE SUPREMACY CLAUSE DID
NOT OPERATE TO DISPLACE SEC. 792:  NO ACTUAL CONFLICT EXISTED BETWEEN
THE STATUTE AND THE FEDERAL MARKETING ORDERS; NEITHER THE AGRICULTURAL
ACT NOR THE MARKETING ORDERS OCCUPIED THE FIELD TO THE EXCLUSION OF THE
STATE STATUTE; AND CONGRESS HAD NOT ORDAINED THAT A FEDERAL MARKETING
ORDER WAS TO GIVE A LICENSE TO FLORIDA PRODUCERS TO "MARKET THEIR
AVOCADOS WITHOUT FURTHER INSPECTION BY THE STATES" AFTER COMPLICANCE
WITH THE FEDERAL MATURITY TEST.  197 F. SUPP., AT 787.  RATHER, THE
COURT OBSERVED, "THE FEDERAL LAW DOES NOT COVER THE WHOLE FIELD OF
INTERSTATE SHIPMENT OF AVOCADOS" BUT BY NECESSARY IMPLICATION LEAVES
THE REGULATION OF CERTAIN ASPECTS OF DISTRIBUTION TO THE STATES. 
FURTHER, THE DISTRICT COURT FOUND NO VIOLATION OF THE EQUAL PROTECTION
CLAUSE BECAUSE THE CALIFORNIA STATUTE WAS APPLICABLE ON IDENTICAL TERMS
TO FLORIDA AND CALIFORNIA PRODUCERS, AND WAS REASONABLY DESIGNED TO
ENFORCE A TRADITIONAL AND LEGITIMATE INTEREST OF THE STATE OF
CALIFORNIA PRODUCERS, IN THE PROTECTION OF CALIFORNIA CONSUMERS.   THE
DISTRICT COURT CONCLUDED, FINALLY, THAT SEC.  792 DID NOT UNREASONABLY
BURDEN OR DISCRIMINATE AGAINST INTERSTATE COMMERCE IN OUT-OF-STATE
AVOCADOS - THAT THE 8% OIL CONTENT TEST SERVED IN PRACTICE ONLY TO KEEP
OFF CALIFORNIA GROCER'S SHELVES FRUIT WHICH WAS UNPALATABLE BECAUSE
PREMATURELY PICKED.  THIS HOLDING RESTED IN PART ON THE CONCLUSION THAT
MATURE FLORIDA FRUIT HAD NOT BEEN SHOWN TO BE INCAPABLE OF ATTAINING 8%
OIL CONTENT, SINCE ONLY A VERY SMALL FRACTION OF FLORIDA AVOCADOS OF
CERTAIN VARIETIES IN FACT FAILED TO MEET THE CALIFORNIA TEST.  (FN3) 

BOTH PARTIES HAVE BROUGHT APPEALS HERE FROM THE DISTRICT COURT'S
JUDGMENT:  THE FLORIDA GROWERS URGE IN NO. 45 THAT THE COURT ERRED IN
NOT ENJOINING ENFORCEMENT OF THE STATE STATUTE AGAINST FLORIDA-GROWN
AVOCADOS; IN NO. 49 THE CALIFORNIA STATE OFFICIALS APPEAL ON THE GROUND
THAT THE ACTION SHOULD HAVE BEEN DISMISSED FOR WANT OF EQUITY
JURISDICTION RATHER THAN UPON THE MERITS.  WE NOTED PROBABLE
JURISDICTION OF BOTH APPEALS.  368 U.S. 964, 965.  WE AFFIRM THE
JUDGMENT IN THE RESPECT CHALLENGED BY THE CROSS-APPEAL IN NO. 49.  IN
NO. 45 WE AGREE THAT APPELLANTS HAVE NOT SUSTAINED THEIR CHALLENGES TO
SEC. 792 UNDER THE SUPREMACY AND EQUAL PROTECTION CLAUSES.  HOWEVER, WE
REVERSE AND REMAND FOR A NEW TRIAL INSOFAR AS THE JUDGMENT SUSTAINS
SEC. 792 AGAINST APPELLANTS' CHALLENGE TO THE STATUTE GROUNDED ON THE
COMMERCE CLAUSE.  WE HOLD THAT THE EFFECT OF THE STATUTE UPON
INTERSTATE COMMERCE CANNOT BE DETERMINED ON THE RECORD NOW BEFORE US. 

THE CALIFORNIA STATUTE WAS ENACTED IN 1925.  LIKE THE FEDERAL
MARKETING REGULATIONS APPLICABLE TO APPELLANTS, THIS STATUTE SOUGHT TO
ENSURE THE MATURITY OF AVOCADOS REACHING RETAIL MARKETS.  (FN4) THE
DISTRICT COURT FOUND ON SUFFICIENT EVIDENCE THAT BEFORE 1925 THE
MARKETING OF IMMATURE AVOCADOS HAD CREATED SERIOUS PROBLEMS IN
CALIFORNIA.  (FN5)  AN AVOCADO, IF PICKED PREMATURELY, WILL NOT RIPEN
PROPERLY, BUT WILL TEND TO DECAY OR SHRIVEL AND BECOME RUBBERY AND
UNPALATABLE AFTER PURCHASE.   NOT ONLY RETAIL CONSUMERS BUT EVEN
EXPERIENCED GROCERS HAVE DIFFICULTY IN DISTINGUISHING MATURE AVOCADOS
FROM THE IMMATURE BY PHYSICAL CHARACTERISTICS ALONE.  (FN6)  THUS, THE
DISTRICT COURT CONCLUDED, "THE MARKETING OF  ...  (IMMATURE) AVOCADOS
CHEATS THE CONSUMER" AND ADVERSELY AFFECTS DEMAND FOR AND ORDERLY
DISTRIBUTION OF THE FRUIT.  197 F. SUPP., AT 783. 

THE FEDERAL MARKETING REGULATIONS WERE ADOPTED PURSUANT TO THE
AGRICULTURAL ADJUSTMENT ACT, 7 U.S.C. SECS. 601 ET SEQ. THE DECLARED
PURPOSES OF THE ACT ARE TO RESTORE AND MAINTAIN PARITY PRICES FOR THE
BENEFIT OF PRODUCERS OF AGRICULTURAL COMMODITIES, TO ENSURE THE STABLE
AND STEADY FLOW OF COMMODITIES, AND "TO ESTABLISH AND MAINTAIN SUCH
MINIMUM STANDARDS OF QUALITY AND MATURITY  ...  AS WILL EFFECTUATE SUCH
ORDERLY MARKETING OF SUCH AGRICULTURAL COMMODITIES AS WILL BE IN THE
PUBLIC INTEREST," SEC. 2(3), 7 U.S.C. SEC. 602(3).  WHENEVER HE FINDS
THAT IT WOULD PROMOTE THESE DECLARED POLICIES, THE SECRETARY IS
EMPOWERED UPON NOTICE AND HEARING TO ADOPT FEDERAL MARKETING ORDERS AND
REGULATIONS FOR A PARTICULAR GROWING AREA, SEC. 8C(3), (4), 7 U.S.C.
SEC. 608C(3), (4).  ORDERS THUS PROPOSED BY THE SECRETARY BECOME
EFFECTIVE ONLY WHEN APPROVED BY A MAJORITY OF THE GROWERS OR PRODUCERS
CONCERNED, SEC. 8C(8), (9), 7 U.S.C. SEC. 608C(8), (9). 

IN 1954, AFTER PROCEEDINGS IN COMPLIANCE WITH THE STATUTE, 19 FED.
REG. 3439, THE SECRETARY PROMULGATED ORDERS GOVERNING THE MARKETING OF
AVOCADOS GROWN IN SOUTH FLORIDA.  (FN7)  THE ORDERS ESTABLISHED IN
AVOCADO ADMINISTRATIVE COMMITTEE, COMPOSED ENTIRELY OF SOUTH FLORIDA
AVOCADO GROWERS AND HANDLERS.  7 CFR SEC. 969.20   THIS COMMITTEE HAS
AUTHORITY TO DRAFT AND RECOMMEND TO THE SECRETARY VARIOUS MARKETING
REGULATIONS GOVERNING THE QUALITY AND MATURITY OF SOUTH FLORIDA
AVOCADOS.  THE MATURITY TEST FOR THE SOUTH FLORIDA FRUIT IS BASED UPON
A SCHEDULE OF PICKING DATES, SIZES AND WEIGHTS ANNUALLY DRAFTED AND
RECOMMENDED BY THE COMMITTEE AND PROMULGATED BY THE SECRETARY.  (FN8)
THE REGULATIONS FORBID PICKING AND SHIPPING OF ANY FRUIT BEFORE THE
PRESCRIBED DATE, ALTHOUGH AN EXEMPTION FROM THE PICKING-DATE SCHEDULE
MAY BE GRANTED BY THE COMMITTEE.  (FN9) THE REGULATIONS DRAFTED BY THE
COMMITTEE AND PROMULGATED BY THE SECRETARY CONCERN OTHER QUALITIES AND
PHYSICAL CHARACTERISTICS OF FLORIDA AVOCADOS BESIDES MATURITY.  SEE 22
FED. REG. 6205, 7 CFR SECS. 51.3050-51.3053, 51.3064.  ALL REGULATED
AVOCADOS, INCLUDING THOSE SHIPPED UNDER PICKING-DATE EXEMPTIONS, MUST
BE INSPECTED FOR COMPLIANCE WITH CERTAIN QUALITY STANDARDS BY THE
FEDERAL-STATE INSPECTION SERVICE, A JOINT AUTHORITY SUPERVISED BY THE
UNITED STATES AND FLORIDA DEPARTMENTS OF AGRICULTURE. 

ALMOST ALL AVACADOS COMMERCIALLY GROWN IN THE UNITED STATES COME
EITHER FROM SOUTHERN CALIFORNIA OR SOUTH FLORIDA.  THE CALIFORNIA-GROWN
VARIETIES ARE CHIEFLY OF MEXICAN ANCESTRY, AND IN MOST YEARS CONTAIN AT
LEAST 8% OIL CONTENT WHEN MATURE.  (FN10)  THE SEVERAL FLORIDA SPECIES,
BY CONTRAST, ARE OF WEST INDIAN AND GUATEMALAN ANCESTRY.  WEST INDIAN
AVOCADOS, WHICH CONSTITUTE SOME 12% OF THE TOTAL FLORIDA PRODUCTION,
MAY CONTAIN SOMEWHAT LESS THAN 8% OIL WHEN MATURE AND READY FOR
MARKET.  THEY DO NOT, THE DISTRICT COURT FOUND, ATTAIN THAT PERCENTAGE
OF OIL "UNTIL THEY ARE PAST THEIR PRIME."  197 F. SUPP., AT 783.  BUT
THAT VARIETY NEED NOT CONCERN US IN THIS CASE, SINCE THE DISTRICT COURT
CONCLUDED ON SUFFICIENT EVIDENCE THAT "POOR SHIPPING QUALITIES AND
SHORT RETAIL STORE SHELF-LIFE" MAKE IT COMMERCIALLY UNPROFITABLE,
REGARDLESS OF THE OIL TEST, TO MARKET THE VARIETY IN CALIFORNIA.  ON
THE OTHER HAND, THE FLORIDA HYBRID AND GUATEMALAN VARIETIES, WHICH DO
NOT ENCOUNTER SUCH HANDICAPS, MAY REACH MATURITY BEFORE THEY ATTAIN 8%
OIL CONTENT.  THE DISTRICT COURT CONCLUDED, NEVERTHELESS, THAT SEC. 792
DID NOT UNREASONABLY INTERFERE WITH THEIR MARKETABILITY SINCE THESE
SPECIES "ATTAIN OR EXCEED 8% OIL CONTENT WHILE IN A PRIME COMMERCIAL
MARKETING CONDITION," SO THAT THE CALIFORNIA TEST WAS "SCIENTIFICALLY
VALID AS APPLIED TO" THESE VARIETIES. 

THE EXPERTS WHO TESTFIED AT THE TRIAL DISPUTED WHETHER CALIFORNIA'S
PERCENTAGE-OF-OIL TEST OR THE FEDERAL MARKETING ORDERS' TEST OF PICKING
DATES AND MINIMUM SIZES AND WEIGHTS WAS THE MORE ACCURATE GAUGE OF THE
MATURITY OF AVOCADOS.  (FN11)  IN ADOPTING HIS CALENDAR TEST OF
MATURITY FOR THE VARIETIES GROWN IN SOUTH FLORIDA THE SECRETARY
EXPRESSLY REJECTED PHYSICAL AND CHEMICAL TESTS AS INSUFFICIENTLY
RELIABLE GUIDES FOR GAUGING THE MATURITY OF THE FLORIDA FRUIT.  (FN12)

                   I. 

WE CONSIDER FIRST APPELLANTS' CHALLENGE TO SEC. 792 UNDER THE
SUPREMACY CLAUSE.  THAT THE CALIFORNIA STATUTE AND THE FEDERAL
MARKETING ORDERS EMBODY DIFFERENT MATURITY TESTS IS CLEAR.  HOWEVER,
THIS DIFFERENCE POSES, RATHER THAN DISPOSES OF THE PROBLEM BEFORE USE. 
WHETHER A STATE MAY CONSTITUTIONALLY REJECT COMMODITIES WHICH A FEDERAL
AUTHORITY HAS CERTIFIED TO BE MARKETABLE DEPENDS UPON WHETHER THE STATE
REGULATION "STANDS AS AN OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION
OF THE FULL PURPOSES AND OBJECTIVES OF CONGRESS," HINES V. DAVIDOWITZ,
312 U.S. 52, 67.  BY THAT TEST, WE HOLD THAT SEC.792 IS NOT SUCH AN
OBSTACLE; THERE IS NEITHER SUCH ACTUAL CONFLICT BETWEEN THE TWO SCHEMES
OF REGULATION THAT BOTH CANNOT STAND IN THE SAME AREA, NOR EVIDENCE OF
A CONGRESSIONAL DESIGN TO PREEMPT THE FIELD. 

WE BEGIN BY PUTTING ASIDE TWO SUGGESTIONS OF THE APPELLANTS WHICH
OBSCURE MORE THAN AID IN THE SOLUTION OF THE PROBLEM.  FIRST, IT IS
SUGGESTED THAT A FEDERAL LICENSE OR CERTIFICATE OF COMPLIANCE WITH
MINIMUM FEDERAL STANDARDS IMMUNIZES THE LICENSED COMMERCE FROM
INCONSISTENT OR MORE DEMANDING STATE REGULATIONS.  WHILE THIS
SUGGESTION DRAWS SOME SUPPORT FROM DECISIONS WHICH HAVE INVALIDATED
DIRECT STATE INTERFERENCE WITH THE ACTIVITIES OF INTERSTATE CARRIERS,
CASTLE V. HAYES FREIGHT LINES, INC., 348 U.S. 61, EVEN IN THAT FIELD OF
PARAMOUNT FEDERAL CONCERN THE SUGGESTION HAS BEEN SIGNIFICANTLY
QUALIFIED, E.G., HURON PORTLAND CEMENT CO. V. DETROIT, 362 U.S. 440,
447-448; KELLY V. WASHINGTON, 302 U.S. 1; CF. BRADLEY V. PUBLIC
UTILITIES COMM'N, 289 U.S. 92.  THAT NO STATE MAY COMPLETELY EXCLUDE
FEDERALLY LICENSED COMMERCE IS INDISPUTABLE, BUT THAT PRINCIPLE HAS NO
APPLICATION TO THIS CASE. 

SECOND, IT IS SUGGESTED THAT THE COEXISTENCE OF FEDERAL AND STATE
REGULATORY LEGISLATION SHOULD DEPEND UPON WHETHER THE PURPOSES OF THE
TWO LAWS ARE PARALLEL OR DIVERGENT.  THIS COURT HAS, ON THE ONE HAND,
SUSTAINED STATE STATUTES HAVING OBJECTIVES VIRTUALLY IDENTICAL TO THOSE
OF FEDERAL REGULATIONS, CALIFORNIA V. ZOOK, 336 U.S. 725, 730-731; CF.
DE VEAU V. BRAISTED, 363 U.S. 144, 156-157; PARKER V. BROWN, 317 U.S.
341; AND HAS, ON THE OTHER HAND, STRUCK DOWN STATE STATUTES WHERE THE
RESPECTIVE PURPOSES WERE QUITE DISSIMILAR, FIRST IOWA HYDRO-ELECTRIC
COOPERATIVE V. FEDERAL POWER COMM'N, 328 U.S. 152.  THE TEST OF WHETHER
BOTH FEDERAL AND STATE REGULATIONS MAY OPERATE, OR THE STATE REGULATION
MUST GIVE WAY, IS WHETHER BOTH REGULATIONS CAN BE ENFORCED WITHOUT
IMPAIRING THE FEDERAL SUPERINTENDENCE OF THE FIELD, NOT WHETHER THEY
ARE AIMED AT SIMILAR OR DIFFERENT OBJECTIVES. 

THE PRINCIPLE TO BE DERIVED FROM OUR DECISIONS IS THAT FEDERAL
REGULATION OF A FIELD OF COMMERCE SHOULD NOT BE DEEMED PREEEMPTIVE OF
STATE REGULATORY POWER IN THE ABSENCE OF PERSUASIVE REASONS - EITHER
THAT THE NATURE OF THE REGULATED SUBJECT MATTER PERMITS NO OTHER
CONCLUSION, OR THAT THE CONGRESS HAS UNMISTAKABLY SO ORDAINED.  SEE,
E.G., HURON PORTLAND CEMENT CO. V. DETROIT, SUPRA.
                 A. 

A HOLDING OF FEDERAL EXCLUSION OF STATE LAW IS INESCAPABLE AND
REQUIRES NO INQUIRY INTO CONGRESSIONAL DESIGN WHERE COMPLIANCE WITH
BOTH FEDERAL AND STATE REGULATIONS IS A PHYSICAL IMPOSSIBILITY FOR ONE
ENGAGED IN INTERSTATE COMMERCE, CF. UNION BRIDGE CO. V. UNITED STATES,
204 U.S. 364, 399-401; MORGAN V. VIRGINIA, 328 U.S. 373; BIBB V. NAVAJO
FREIGHT LINES, INC., 359 U.S. 520.  THAT WOULD BE THE SITUATION HERE
IF, FOR EXAMPLE, THE FEDERAL ORDERS FORBADE THE PICKING AND MARKETING
OF ANY AVOCADO TESTING MORE THAN 7% OIL, WHILE THE CALIFORNIA TEST
EXCLUDED FROM THE STATE ANY AVOCADO MEASURING LESS THAN 8% OIL
CONTENT.  NO SUCH IMPOSSIBILITY OF DUAL COMPLIANCE IS PRESENTED ON THIS
RECORD, HOWEVER, AS TO THOSE FLORIDA AVOCADOS OF THE HYBRID AND
GUATEMALAN VARIETIES WHICH WERE ACTUALLY REJECTED BY THE CALIFORNIA
TEST, THE DISTRICT COURT INDICATED THAT THE FLORIDA GROWERS MIGHT HAVE
AVOIDED SUCH REJECTIONS BY LEAVING THE FRUIT ON THE TREES BEYOND THE
EARLIEST PICKING DATE PERMITTED BY THE FEDERAL REGULATIONS, AND NOTHING
IN THE RECORD CONTRADICTS THAT SUGGESTION.  NOR IS THERE A LACK OF
EVIDENTIARY SUPPORT FOR THE DISTRICT COURT'S FINDING THAT THE FLORIDA
VARIETIES MARKETED IN CALIFORNIA "ATTAIN OR EXCEED 8% OIL CONTENT WHILE
IN A PRIME COMMERCIAL MARKETING CONDITION," EVEN THOUGH THEY MAY BE
"MATURE ENOUGH TO BE ACCEPTABLE PRIOR TO THE TIME THAT THEY REACH THAT
CONTENT  ...  ."  197 F. SUPP., AT 783.  THUS THE PRESENT RECORD
DEMONSTRATES NO INEVITABLE COLLISION BETWEEN THE TWO SCHEMES OF
REGULATIONS, DESPITE THE DISSIMILARITY OF THE STANDARDS. 

                  B. 

THE ISSUE UNDER THE HEAD OF THE SUPREMACY CLAUSE IS NARROWED THEN TO
THIS:  DOES EITHER THE NATURE OF THE SUBJECT MATTER, NAMELY THE
MATURITY OF AVOCADOS, OR ANY EXPLICIT DECLARATION OF CONGRESSIONAL
DESIGN TO DISPLACE STATE REGULATION, REQUIRE SEC. 792 TO YIELD TO THE
FEDERAL MARKETING ORDERS?  THE MATURITY OF AVOCADOS SEEMS TO BE AN
INHERENTLY UNLIKELY CANDIDATE FOR EXCLUSIVE FEDERAL REGULATION. 
CERTAINLY IT IS NOT A SUBJECT BY ITS VERY NATURE ADMITTING ONLY OF
NATIONAL SUPERVISION, CF. COOLEY V. BOARD OF PORT WARDENS, 12 HOW. 
299, 319-320.  NOR IS IT A SUBJECT DEMANDING EXCLUSIVE FEDERAL
REGULATION IN ORDER TO ACHIEVE UNIFORMITY VITAL TO NATIONAL INTERESTS,
CF. SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, 241
244. 

ON THE CONTRARY, THE MATURITY OF AVOCADOS IS A SUBJECT MATTER OF THE
KIND THIS COURT HAS TRADITIONALLY REGARDED AS PROPERLY WITHIN THE SCOPE
OF STATE SUPERINTENDENCE.  SPECIFICALLY, THE SUPERVISION OF THE
READYING OF FOODSTUFFS FOR MARKET HAS ALWAYS BEEN DEEMED A MATTER OF
PECULIARLY LOCAL CONCERN.  MANY DECADES AGO, FOR EXAMPLE, THIS COURT
SUSTAINED A STATE'S PROHIBITION AGAINST THE IMPORTATION OF ARTIFICIALLY
COLORED OLEOMARGARINE (WHICH POSED NO HEALTH PROBLEM), OVER CLAIMS OF
FEDERAL PREEMPTION AND BURDEN ON COMMERCE.  IN THE COURSE OF THE
OPINION, THE COURT RECOGNIZED THAT THE STATES HAVE ALWAYS POSSESSED A
LEGITIMATE INTEREST IN "THE PROTECTION OF  ...  THEIR PEOPLE AGAINST
FRAUD AND DECEPTION IN THE SALE OF FOOD PRODUCTS" AT RETAIL MARKETS
WITHIN THEIR BORDERS.  PLUMLEY V. MASSACHUSETTS, 155 U.S. 461, 472. 
SEE ALSO CROSSMAN V. LURMAN, 192 U.S. 189, 199-200; HYGRADE PROVISION
CO. V. SHERMAN, 266 U.S. 497; SAVAGE V. JONES, 225 U.S. 501, 525-529. 

IT IS TRUE THAT MORE RECENTLY WE SUSTAINED A FEDERAL STATUTE BROADLY
REGULATING THE PRODUCTION OF RENOVATED BUTTER.  BUT WE WERE SCRUPULOUS
IN POINTING OUT THAT A STATE MIGHT NEVERTHELESS - AT LEAST IN THE
ABSENCE OF AN EXPRESS CONTRARY COMMAND OF CONGRESS - CONFISCATE OR
EXCLUDE FROM MARKET THE PROCESSED BUTTER WHICH HAD COMPLIED WITH ALL
THE FEDERAL PROCESSING STANDARDS, "BECAUSE OF A HIGHER STANDARD
DEMANDED BY A STATE FOR ITS CONSUMERS."  A STATE REGULATION SO PURPOSED
WAS, WE AFFIRMED, "PERMISSIBLE UNDER ALL THE AUTHORITIES."  (FN13)
CLOVERLEAF BUTTER CO. V. PATTERSON, 315 U.S. 148, 162.  THAT
DISTINCTION IS A FUNDAMENTAL ONE, WHICH ILLUMINES AND DELINEATES THE
PROBLEM OF THE PRESENT CASE.  FEDERAL REGULATION BY MEANS OF MINIMUM
STANDARDS OF THE PICKING, PROCESSING, AND TRANSPORTATION OF
AGRICULTURAL COMMODITIES, HOWEVER COMPREHENSIVE FOR THOSE PURPOSES THAT
REGULATION MAY BE, DOES NOT ITSELF IMPORT DISPLACEMENT OF STATE CONTROL
OVER THE DISTRIBUTION AND RETAIL SALE OF THOSE COMMODITIES IN THE
INTERESTS OF THE CONSUMERS OF THE COMMODITIES WITHIN THE STATE.  THUS,
WHILE FLORIDA MAY PERHAPS NOT PREVENT THE EXPORTATION OF FEDERALLY
CERTIFIED FRUIT BY SUPERIMPOSING A HIGHER MATURITY STANDARD, NOTHING IN
CLOVERLEAF FORBIDS CALIFORNIA TO REGULATE THEIR MARKETING. 
CONGRESSIONAL REGULATION OF ONE END OF THE STREAM OF COMMERCE DOES NOT,
IPSO FACTO, OUST ALL STATE REGULATION AT THE OTHER END.  SUCH A
DISPLACEMENT MAY NOT BE INFERRED AUTOMATICALLY FROM THE FACT THAT
CONGRESS HAS REGULATED PRODUCTION AND PACKING OF COMMODITIES FOR THE
INTERSTATE MARKET.  WE DO NOT MEAN TO SUGGEST THAT CERTAIN LOCAL
REGULATIONS MAY NOT UNREASONABLY OR ARBITRARILY BURDEN INTERSTATE
COMMERCE; WE CONSIDER THAT QUESTION SEPARATELY, INFRA, PP. 152-154. 
HERE WE ARE CONCERNED ONLY WHETHER PARTIAL CONGRESSIONAL
SUPERINTENDENCE OF THE FIELD (MATURITY FOR THE PURPOSE OF INTRODUCTION
OF FLORIDA FRUIT INTO THE STREAM OF INTERSTATE COMMERCE) AUTOMATICALLY
FORECLOSES REGULATION OF MATURITY BY ANOTHER STATE IN THE INTERESTS OF
THAT STATE'S CONSUMERS OF THE FRUIT. 

THE CORRECTNESS OF THE DISTRICT COURT'S CONCLUSION THAT SEC. 792 WAS
A REGULATION WELL WITHIN THE SCOPE OF THE CALIFORNIA'S POLICE POWERS IS
THUS CLEAR.  WHILE IT IS CONCEDED THAT THE CALIFORNIA STATUTE IS NOT A
HEALTH MEASURE, NEITHER LOGIC NOR PRECEDENT INVITES ANY DISTINCTION
BETWEEN STATE REGULATIONS DESIGNED TO KEEP UNHEALTHFUL OR UNSAFE
COMMODITIES OFF THE GROCER'S SHELVES, AND THOSE DESIGNED TO PREVENT THE
DECEPTION OF CONSUMERS.  (FN14)  SEE, E.G., HYGRADE PROVISION CO. V.
SHERMAN, SUPRA; PLUMLEY V. MASSACHUSETTS, SUPRA.  NOTHING APPEARING IN
THE RECORD BEFORE US AFFORDS ANY GROUND FOR DEPARTURE IN THIS CASE FROM
OUR CONSISTENT REFUSAL TO DRAW SUCH A DISTINCTION. 

C. 

SINCE NO IRRECONCILABLE CONFLICT WITH THE FEDERAL REGULATION REQUIRES
A CONCLUSION THAT SEC. 792 WAS DISPLACED, WE TURN TO THE QUESTION
WHETHER CONGRESS HAS NEVERTHELESS ORDAINED THAT THE STATE REGULATION
SHALL YIELD.  THE SETTLED MANDATE GOVERNING THIS INQUIRY, IN DEFERENCE
TO THE FACT THAT A STATE REGULATION OF THIS KIND IS AN EXERCISE OF THE
"HISTORIC POLICE POWERS OF THE STATES," IS NOT TO DECREE SUCH A FEDERAL
DISPLACEMENT "UNLESS THAT WAS THE CLEAR AND MANIFEST PURPOSE OF
CONGRESS," RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218, 230.  IN
OTHER WORDS, WE ARE NOT TO CONCLUDE THAT CONGRESS LEGISLATED THE OUSTER
OF THIS CALIFORNIA STATUTE BY THE MARKETING ORDERS IN THE ABSENCE OF AN
UNAMBIGUOUS CONGRESSIONAL MANDATE TO THAT EFFECT.  WE SEARCH IN VAIN
FOR SUCH A MANDATE. 

THE PROVISIONS AN OBJECTIVES OF THE ARGICULTURAL ADJUSTMENT ACT BEAR
LITTLE RESEMBLANCE TO THOSE IN WHICH ONLY LAST TERM WE FOUND A
PREEMPTIVE DESIGN IN CAMPBELL V. HUSSEY, 368 U.S. 297.  IN THE FEDERAL
TOBACCO INSPECTION ACT INVOLVED IN THAT CASE, CONGRESS HAD DECLARED
"UNIFORM STANDARDS OF CLASSIFICATION AND INSPECTION" TO BE "IMPERATIVE
FOR THE PROTECTION OF PRODUCERS AND OTHERS ENGAGED IN COMMERCE AND THE
PUBLIC INTEREST THEREIN."  7 U.S.C. SEC. 511A.  THE LEGISLATIVE HISTORY
WAS REPLETE WITH REFERENCES TO A NEED FOR "UNIFORM" OR "OFFICIAL"
STANDARDS, WHICH COULD HARMONIZE THE GRADING AND INSPECTION OF TOBACCO
AT ALL MARKETS THROUGHOUT THE COUNTRY.  UNDER THE STATUTE A SINGLE SET
OF STANDARDS WAS TO BE PROMULGATED BY THE SECRETARY OF AGRICULTURE,
"AND THE STANDARDS SO ESTABLISHED WOULD BE THE OFFICIAL STANDARDS OF
THE UNITED STATES FOR SUCH  PURPOSE."  S. REP. NO. 1211, 74TH CONG.,
1ST SESS. 1. 

NOTHING IN THE LANGUAGE OF THE AGRICULTURAL ADJUSTMENT ACT - PASSED
BY THE SAME CONGRESS THE VERY NEXT DAY (FN15) - DISCLOSES A SIMILARLY
CONPREHENSIVE CONGRESSIONAL DESIGN.  THERE IS BUT ONE PROVISION OF THE
STATUTE WHICH INTIMATES ANY PURPOSE TO MAKE AGRICULTURAL PRODUCTION
CONTROLS THE MONITORS AND RETAIL DISTRIBUTION - THE REFERENCE TO A
POLICY OF ESTABLISHING SUCH "MINIMUM STANDARDS OF QUALITY AND MATURITY
AND SUCH GRADING AND INSPECTION REQUIREMENTS  ...  AS WILL EFFECTUATE
... ORDERLY MARKETING  ...  IN THE PUBLIC INTEREST."  7 U.S.C. SEC.
602(3).  THAT LANGUAGE CANNOT BE SAID, WITHOUT MORE, TO REVEAL A DESIGN
THAT FEDERAL MARKETING ORDERS SHOULD DISPLACE ALL STATE REGULATIONS. 
BY ITS VERY TERMS, IN FACT, THE STATUTE PURPORTS ONLY TO ESTABLISH
MINIMUM STANDARDS. 

OTHER PROVISIONS OF THE ACT, AND THEIR HISTORY, MILITATE EVEN MORE
STRONGLY AGAINST FEDERAL DISPLACEMENT OF THESE STATE REGULATIONS. 
FIRST, THE ADOPTION OF MARKETING AGREEMENTS AND ORDERS IS AUTHORIZED
ONLY WHEN THE SECRETARY HAS DETERMINED THAT ECONOMIC CONDITIONS WITHIN
A PARTICULAR GROWING AREA REQUIRE FEDERALLY SUPERVISED COOPERATION
AMONG THE GROWERS TO ALLEVIATE THOSE CONDITIONS.  7 U.S.C. SEC.
608C(1), (2).  MOREOVER, THE RELIEF AFFORDED THE GROWERS IS TO BE
TEMPORARY; "THE SECRETARY IS DIRECTED TO CEASE EXERCISING SUCH POWERS"
WHEN "THE CIRCUMSTANCES DESCRIBED  ...  NO LONGER EXIST."  H.R. REP.
NO. 1241, 74TH CONG., 1ST SESS. 4.  AND CONSISTENTLY WITH THESE TERMS,
THE SECRETARY HIMSELF HAS CHARACTERIZED THE MARKETING AGREEMENTS AS
ESSENTIALLY "SELF-HELP PROGRAMS" INSTITUTED AND ADMINISTERED BY THE
FARMERS INVOLVED.  THIS VIEW HAS RECENTLY BEEN ELABORATED BY THE
SECRETARY: 

"THE ACT ITSELF DOES NOT IMPOSE REGULATIONS OVER THE MARKETING OF ANY
AGRICULTURAL COMMODITY.  IT MERELY PROVIDES THE AUTHORITY UNDER WHICH
AN INDUSTRY CAN DEVELOP REGULATIONS TO FIT ITS OWN SITUATION AND SOLVE
ITS OWN MARKETING PROBLEMS."  UNITED STATES DEPARTMENT OF AGRICULTURE,
MARKETING AGREEMENTS AND ORDERS, AMS-230 (REV. ED. 1961), 3.  SEE ALSO
UNITED STATES DEPARTMENT OF AGRICULTURE, AGRICULTURAL ADJUSTMENT 1937
1938 (1939), 71. 

SECOND, THE VERY TERMS OF THE STATUTE REQUIRE THAT THE SECRETARY
PROMULGATE MARKETING ORDERS "LIMITED IN THEIR APPLICATION TO THE
SMALLEST REGIONAL PRODUCTION AREAS" WHICH HE FINDS PRACTICABLE; AND THE
ORDERS ARE TO "PRESCRIBE SUCH DIFFERENT TERMS, APPLICABLE TO DIFFERENT
PRODUCTION AREAS AND MARKETING AREAS" AS WILL SERVE TO "GIVE DUE
RECOGNITION TO THE DIFFERENCES IN PRODUCTION AND MARKETING" BETWEEN
THOSE AREAS.  7 U.S.C. SEC.  608C(11).  WHILE THIS LANGUAGE IS NOT
CONCLUSIVE ON THE QUESTION BEFORE US, IT INDICATES THAT CONGRESS
CONTEMPLATED - QUITE BY CONTRAST TO THE DESIGN EMBODIED IN THE TOBACCO
INSPECTION ACT - THAT THERE MIGHT BE WIDESPREAD REGIONAL VARIATIONS IN
THE STANDARDS GOVERNING PRODUCTION AND PROCESSING.  THUS AVOCADO
GROWERS IN ANOTHER REGION COULD, FOR EXAMPLE, PROPOSE - AND THE
SECRETARY WOULD PRESUMABLY ADOPT - MATURITY REGULATIONS WHICH WOULD
GAUGE THE MARKETABILITY OF THE FRUIT NOT BY THE CALENDAR, AS DO THE
SOUTH FLORIDA RULES, BUT BY THE COLOR OF THE SKIN, OR THE TEXTURE AND
COLOR OF THE SEED-COAT, OR PERHAPS EVEN BY OIL CONTENT.  THUS IF THE
CONGRESS OF 1935 REALLY INTENDED THAT DISTRIBUTION WOULD BE
COMPREHENSIVELY GOVERNED BY GROWER-ADOPTED QUALITY AND MATURITY
STANDARDS, AND ALL STATE REGULATION OF THE SAME SUBJECT WOULD BE
OUSTED, IT DOES NOT SEEM LIKELY THAT THE STATUTE WOULD HAVE INVITED
LOCAL VARIATIONS AT THE PRODUCTION END WHILE SAYING ABSOLUTELY NOTHING
ABOUT THE EFFECT OF THOSE PRODUCTION CONTROLS UPON DISTRIBUTION FOR
CONSUMPTION. 

A THIRD FACTOR WHICH STRONGLY SUGGESTS THAT CONGRESS DID NOT MANDATE
UNIFORMITY FOR EACH MARKETING ORDER ARISES FROM THE LEGISLATIVE
HISTORY.  THE PROVISIONS CONCERNING THE LIMITED DURATION AND LOCAL
APPLICATION OF MARKETING AGREEMENTS RECEIVED MUCH ATTENTION FROM BOTH
HOUSE AND SENATE COMMITTEES REPORTING ON THE BILL.  THOUGH RECOGNIZING
THAT THE POWERS CONFERRED UPON THE SECRETARY WERE NOVEL AND EXTENSIVE,
BOTH COMMITTEES CONCLUDED:  "THESE AND OTHER RESTRICTIVE PROVISIONS ARE
... ADEQUATELY DRAWN TO GUARD AGAINST ANY FEAR THAT THE REGULATORY
POWER IS SO BROAD AS TO SUBJECT ITS EXERCISE TO THE RISK OF ABUSE." 
H.R. REP. NO. 1241, 74TH CONG., 1ST SESS. 7; S. REP. NO. 1011, 74TH
CONG., 1ST SESS. 3.  THE COMMITTEE REPORTS ALSO DISCUSSED SEC. 10 (I),
7 U.S.C.  SEC. 610 (I), WHICH AUTHORIZED FEDERAL-STATE COOPERATION IN
THE ADMINISTRATION OF THE PROGRAM, AND CAUTIONED SIGNIFICANTLY: 

"NOTWITHSTANDING THE AUTHORIZATION OF COOPERATION CONTAINED IN THIS
GOVERNMENT TO INVADE THE FIELD OF THE STATES, FOR THE LIMITATIONS OF
THE ACT AND THE CONSTITUTION FORBID FEDERAL REGULATION IN THAT FIELD,
AND THIS PROVISIONS DOES NOT INDICATE THE CONTRARY.  NOR IS THERE
ANYTHING IN THE PROVISION TO FORCE STATES TO COOPERATE.  EACH
SOVEREIGNTY OPERATES IN ITS OWN SPHERE BUT CAN EXERT ITS AUTHORITY IN
CONFORMITY RATHER THAN IN CONFLICT WITH THAT OF THE OTHER."  H.R. REP.
NO. 1241, 74TH CONG., 1ST SESS. 22-23; S. REP. NO. 1011, 74TH CONG.,
1ST SESS. 15. 

THUS THE REVEALED CONGRESSIONAL DESIGN WAS APPARENTLY TO DO NO MORE
THAN TO INVITE FARMERS AND GROWERS TO GET TOGETHER, UNDER THE AUSPICES
OF THE DEPARTMENT OF AGRICULTURE, TO WORK OUT LOCAL HARVESTING, PACKING
AND PROCESSING PROGRAMS AND THEREBY RELIEVE TEMPORARILY DEPRESSED
MARKETING CONDITIONS.  HAD CONGRESS MEANT THE ACT TO HAVE IN ADDITION
TO A PERVASIVE EFFECT UPON THE ULTIMATE DISTRUBITION AND SALE OF
PRODUCE, EVIDENCE OF SUCH A DESIGN WOULD PRESUMABLY HAVE ACCOMPANIED
THE STATUTE, AS IT DID THE TOBACCO INSPECTION ACT, SEE CAMPBELL V.
HUSSEY, SUPRA.  IN THE ABSENCE OF ANY MANIFESTATIONS, IT WOULD BE
UNREASONABLE TO INFER THAT CONGRESS DELEGATED TO THE GROWERS IN A
PARTICULAR REGION THE AUTHORITY TO DEPRIVE THE STATES OF THEIR
TRADITIONAL POWER TO ENFORCE OTHERWISE VALID REGULATIONS DESIGNED FOR
THE PROTECTION OF CONSUMERS.    AN EXAMINATION OF THE OPERATION OF
THESE PARTICULAR MARKETING ORDERS REINFORCES THE CONCLUSION WE REACH
FROM THIS ANALYSIS OF THE TERMS AND OBJECTIVES OF THE STATUTE.  THE
REGULATIONS SHOW THAT THE FLORIDA AVOCADO MATURITY STANDARDS ARE
DRAFTED EACH YEAR NOT BY IMPARTIAL EXPERTS IN WASHINGTON OR EVEN IN
FLORIDA, BUT RATHER BY THE SOUTH FLORIDA AVOCADO ADMINISTRATIVE
COMMITTEE, WHICH CONSISTS ENTIRELY OF REPRESENTATIVES OF THE GROWERS
AND HANDLERS CONCERNED.  IT APPEARS THAT THE SECRETARY OF AGRICULTURE
HAS INVARIABLY ADOPTED THE COMMITTEE'S RECOMMENDATIONS FOR MATURITY
DATES, SIZES, AND WEIGHTS.  (FN16)  THUS THE PATTERN WHICH EMERGES IS
ONE OF MATURITY REGULATIONS DRAFTED AND ADMINISTERED LOCALLY BY THE
GROWERS' OWN REPRESENTATIVES, AND DESIGNED TO DO NO MORE THAN PROMOTE
ORDERLY COMPETITION AMONG THE SOUTH FLORIDA GROWERS.  (FN17) 

THIS CASE REQUIRES NO CONSIDERATION OF THE SCOPE OF THE
CONSTITUTIONAL POWER OF CONGRESS TO OUST ALL STATE REGULATION OF
MATURITY, AND WE INTIMATE NO VIEW UPON THAT QUESTION.  (FN18)  IT IS
ENOUGH TO DECIDE THIS ASPECT OF THE PRESENT CASE THAT WE CONCLUDE THAT
CONGRESS HAS NOT ATTEMPTED TO OUST OR DISPLACE STATE POWERS TO ENACT
THE REGULATION EMBODIED IN SEC. 792.  THE MOST PLAUSIBLE INFERENCE FROM
THE LEGISLATIVE SCHEME IS THAT THE CONGRESS CONTEMPLATED THAT STATE
POWER TO ENACT SUCH REGULATIONS SHOULD REMAIN UNIMPAIRED. 

                                   II. 

WE TURN NOW TO APPELLANTS' ARGUMENTS UNDER THE EQUAL PROTECTION AND
COMMERCE CLAUSES. 

IT IS ENOUGH TO DISPOSE OF THE EQUAL PROTECTION CLAIM THAT WE EXPRESS
OUR AGREEMENT WITH THE DISTRICT COURT THAT THE STATE STANDARD DOES NOT
WORK AN "IRRATIONAL DISCRIMINATION AS BETWEEN PERSONS OR GROUPS OF
PERSONS," GOESAERT V. CLEARY, 335 U.S. 464, 466; CF.  RAILWAY EXPRESS
AGENCY, INC., V. NEW YORK, 336 U.S. 106.  WHILE IT MAY WELL BE THAT
ARGUABLY SUPERIOR TESTS OF MATURITY COULD BE DEVISED, WE CANNOT SAY, IN
DEROGATION OF THE FINDINGS OF THE DISTRICT COURT, THAT THIS POSSIBILITY
RENDERS THE CHOICE MADE BY CALIFORNIA EITHER ARBITRARY OR DEVOID OF
RATIONAL RELATIONSHIP TO A LEGITIMATE REGULATORY INTEREST.  WHETHER OR
NOT THE OIL CONTENT TEST IS THE MOST RELIABLE INDICATOR OF
MARKETABILITY OF AVOCADOS IS NOT A QUESTION FOR THE COURTS TO DECIDE;
IT IS SUFFICIENT THAT ON THIS RECORD WE SHOULD CONCLUDE, AS WE DO, THAT
OIL CONTENT APPEARS TO BE AN ACCEPTABLE CRITERION OF AVOCADO MATURITY. 

MORE DIFFICULT IS THE CLAIM THAT THE CALIFORNIA STATUTE UNREASONABLY
BURDENS OR DISCRIMINATES AGAINST INTERESTATE COMMERCE BECAUSE ITS
APPLICATION HAS EXCLUDED FLORIDA AVOCADOS  FROM THE STATE.  ALTHOUGH
FLORIDA AND CALIFORNIA WERE COMPETITORS IN AVOCADO PRODUCTION WHEN THE
STATUTE WAS PASSED IN 1925, THE PRESENT RECORD PERMITS NO INFERENCE
THAT THE CALIFORNIA STATUTE HAD A DISCRIMINATORY OBJECTIVE.  (FN19)
NEVERTHELESS IT MAY BE THAT THE CONTINUED APPLICATION OF THIS
REGULATION TO FLORIDA AVAOCADOS HAS IMPOSED AN UNCONSTITUTIONAL BURDEN
ON COMMERCE, OR HAS DISCRIMINATED AGAINST ANOTHER STATE'S EXPORTS OF
THE PARTICULAR COMMODITY.  OTHER STATE REGULATIONS RAISING SIMILAR
PROBLEMS HAVE BEEN FOUND TO BE DISCRIMINATORY OR BURDENSOME
NOTWITHSTANDING A LEGITIMATE STATE INTEREST IN SOME FORM OF REGULATION
EITHER BECAUSE THEY EXCEEDED THE LIMITS NECESSARY TO VINDICATE THAT
INTEREST, DEAN MILK CO. V. MADISON, 340 U.S. 349, OR BECAUSE THEY
UNREASONABLY FAVORED LOCAL PRODUCERS AT THE EXPENSE OF COMPETITORS FROM
OTHER STATES, BALDWIN V. SEELIG, INC., 294 U.S. 511.  SUCH A STATE
REGULATION MIGHT ALSO CONSTITUTE AN ILLEGITIMATE ATTEMPT TO CONTROL THE
CONDUCT OF PRODUCERS BEYOND THE BORDERS OF CALIFORNIA, CF. BIBB V.
NAVAJO FREIGHT LINES, INC., SUPRA; SOUTHERN PACIFIC CO. V. ARIZONA, 325
U.S. 761, 775. 

THE DISTRICT COURT REFERRED TO THESE PRECEDENTS BUT NEVERTHELESS
CONCLUDED THAT THE CALIFORNIA OIL CONTENT TEST WAS NOT BURDENSOME UPON
OR DISCRIMINATORY AGAINST INTERSTATE COMMERCE.  197 F. SUPP., AT 786
787.  HOWEVER, WE ARE UNABLE TO REVIEW THAT CONCLUSION OR DECIDE
WHETHER THE COURT PROPERLY APPLIED THE PRINCIPLES ANNOUNCED IN THESE
DECISIONS BECAUSE WE CANNOT ASCERTAIN WHAT CONSTITUTED THE RECORD ON
WHICH THE CONCLUSION WAS PREDICATED.  MUCH OF THE APPELLANTS' OFFERED
PROOF CONSISTED OF DEPOSITIONS AND EXHIBITS, DESIGNED TO DETAIL BOTH
THE REJECTION OF FLORIDA AVOCADOS IN CALIFORNIA AND THE OIL CONTENT OF
FLORIDA AVOCADOS WHICH HAD MET THE FEDERAL TEST BUT WHICH MIGHT
NONETHELESS HAVE BEEN EXCLUDED FROM CALIFORNIA MARKETS. 

THE PARTIES' OWN ASSUMPTIONS CONCERNING THE CONTENT OF THE RECORD ARE
IN IRRECONCILABLE CONFLICT: THE APPELLANTS HAVE ARGUED THE CASE ON THE
APPARENT ASSUMPTION THAT THE DEPOSITIONS AND EXHIBITS WERE ADMITTED
BEFORE THE DISTRICT COURT; THE APPELLEES, ON THE OTHER HAND, HAVE
ASSUMED BOTH IN THEIR BRIEFS AND IN ORAL ARGUMENT THAT THE DISPUTED
EVIDENCE WAS NOT ADMITTED.  THIS LACK OF CONSENSUS IS ALTOGETHER
UNDERSTANDABLE IN LIGHT OF THE CONFUSION CREATED BY THE DISTRICT
COURT'S EVIDENTIARY RULINGS.  THE APPELLEES OBJECTED TO THE
INTRODUCTION OF THE DISPUTED MATERIALS ON SEVERAL GROUNDS, BOTH DURING
AND AFTER THE TRIAL.  THE COURT EXPRESSLY RESERVED ITS RULINGS ON THE
ISSUE OF ADMISSIBILITY, AND AFTER THE ENTRY OF ITS ORDER ON THE MERITS
OF THE CASE MADE A SUPPLEMENTAL "RULING ON EVIDENTIARY MATTERS," IN
WHICH IT STATED THAT THE DISPUTED EXHIBITS AND DEPOSITIONS "ARE NOT
ADMITTED INTO EVIDENCE, BUT HAVE BEEN CONSIDERED BY THE COURT AS AN
OFFER OF PROOF BY THE PLAINTIFFS  ...  ."  THE EARLIER MEMORANDUM OF
THE COURT EXPLAINED THAT IT WOULD "ASSUME, ARGUENDO, THAT THE EXHIBITS
AND DEPOSITIONS OFFERED BY PLAINTIFFS ARE ALL ADMISSIBLE."  197 F.
SUPP., AT 782.  IF THIS WAS INTENDED TO MEAN THAT APPELLANTS WOULD NOT
HAVE MADE OUT A CASE FOR RELIEF, EVEN WERE THE EVIDENCE TO BE ADMITTED,
THEN THERE WOULD HAVE BEEN NO NEED TO RULE ON ADMISSIBILITY.  BUT WE
ARE UNABLE TO DETERMINE, JUST AS THE PARTIES WERE UNABLE TO AGREE,
WHETHER THE DISTRICT COURT VIEWED THE EVIDENCE IN THAT POSTURE. 
(FN20) 

THUS THE ONLY EVIDENCE WHICH WOULD SEEM TO SUPPORT AN INJUNCTION ON
THE GROUND OF BURDEN ON INTERSTATE COMMERCE HAS NEVER BEEN FORMALLY
ADMITTED TO THE RECORD IN THIS CASE.  FOR THIS COURT TO REVERSE AND
ORDER AN INJUNCTION ON THE BASIS OF THAT EVIDENCE WOULD BE, IN EFFECT,
TO ADMIT THE CONTESTED DEPOSITIONS AND EXHIBITS ON APPEAL WITHOUT EVER
AFFORDING THE APPELLEES AN OPPORTUNITY TO ARGUE THEIR SEEMINGLY
SUBSTANTIAL OBJECTIONS.  (FN21)  TO ASSUME THE ADMISSIBILITY OF THE
EVIDENCE UNDER THESE CIRCUMSTANCES WOULD BE TO DENY THE APPELLEES THIER
DAY IN COURT AS TO A DISPUTED PART OF THE CASE ON WHICH THE TRIAL COURT
HAS NEVER RULED BECAUSE OF ITS VIEW OF THE LAW EVIDENTLY MADE SUCH A
RULING UNNECESSARY.  CF.  BYRD V. BLUE RIDGE RURAL ELECTRIC
COOPERATIVE, INC., 356 U.S. 525, 533; FOUNTAIN V. FILSON, 336 U.S. 681;
GLOBE LIQUOR CO. V. SAN ROMAN, 332 U.S. 571.  ON THE OTHER HAND, TO
AFFIRM THE DISTRICT COURT WOULD REQUIRE US TO MAKE EQUALLY
IMPERMISSIBLE ASSUMPTIONS AS TO THE STATE OF THE RECORD.  CF. FLORIDA
V. UNITED STATES, 282 U.S. 194, 215. 

FOR THESE REASONS WE CONCLUDE THAT THE JUDGMENT MUST, TO THE EXTENT
APPEALED FROM IN NO. 45, BE REVERSED AND THE CASE REMANDED TO THE
DISTRICT COURT FOR A NEW TRIAL OF APPELLANTS' COMMERCE CLAUSE
CONTENTIONS.  WE INTIMATE NO VIEW WITH RESPECT TO EITHER THE
ADMISSIBILITY OR THE PROBATIVE VALUE OF THE DISPUTED EVIDENCE, OR OF
ANY OTHER EVIDENCE WHICH MIGHT BE BROUGHT FORTH BY EITHER PARTY
CONCERNING THIS ASPECT OF THE CASE. 

                            III. 

IN NO. 49, THE STATE OFFICERS CROSS-APPEAL ON THE GROUND THAT THE
DISTRICT COURT SHOULD HAVE DISMISSED THE ACTION FOR WANT OF EQUITY,
RATHER THAN FOR LACK OF MERIT.  THEIR CONTENTION IS THAT THERE WAS
INSUFFICIENT SHOWING OF INJURY TO THE FLORIDA GROWERS TO INVOKE THE
DISTRICT COURT'S EQUITY JURISDICTION.  WE REJECT THAT CONTENTION, AND
AFFIRM THE JUDGMENT INSOFAR AS IT IS CHALLENGED BY THE CROSS-APPEAL. 

IN FLORIDA LIME & AVOCADO GROWERS, INC., V. JACOBSEN, 362 U.S. 73, WE
HELD THAT BECUASE OF THE FLORIDA GROWERS' ALLEGATIONS THAT CALIFORNIA
OFFICIALS HAD CONSISTENTLY CONDEMNED FLORIDA AVOCADOS AS UNFIT FOR SALE
IN CALIFORNIA, "THUS REQUIRING APPELLANTS (THE FLORIDA GROWERS) - TO
PREVENT DESTRUCTION AND COMPLETE LOSS OF THEIR SHIPMENTS - TO RESHIP
THE AVOCADOS TO AND SELL THEM IN OTHER STATES," IT WAS EVIDENT THAT
"THERE IS AN EXISTING DISPUTE BETWEEN THE PARTIES AS TO PRESENT LEGAL
RIGHTS AMOUNTING TO A JUSTICIABLE CONTROVERSY WHICH APPELLANTS ARE
ENTITLED TO HAVE DETERMINED ON THE MERITS."  362 U.S., AT 85-86.  IN
VIEW OF OUR MANDATE IN JACOBSEN, THEREFORE, THE DISTRICT COURT
NECESSARILY ASSUMED JURISDICTION AND HEARD THE CASE ON ITS MERITS.  CF.
UNITED STATES V. HALEY, 371 U.S. 18. 

EVEN ON THE PRESENT AMBIGUOUS RECORD, WE THINK THAT THE FLORIDA
GROWERS HAVE DEMONSTRATED SUFFICIENT INJURY TO WARRANT AT LEAST A TRIAL
OF THEIR ALLEGATIONS.  IN THE CALIFORNIA OFFICIALS' BRIEFS BELOW, IT
WAS CONCEDED THAT THE FLORIDA GROWERS HAD SUFFERED DAMAGE IN THE AMOUNT
OF SOME $1,500 BY REASON OF THE ENFORCEMENT OF THE STATUTE.  BEFORE THE
BAR OF THIS COURT, IT WAS CONCEDED THAT THE STATE, IN OBJECTING TO THE
GROWERS' PROFFERED EVIDENCE, DID NOT DISPUTE THE CLAIM THAT SOME
SHIPMENTS OF FLORIDA AVOCADOS HAD IN FACT BEEN REJECTED BY CALIFORNIA
FOR FAILURE TO COMPLY WITH THE OIL CONTENT REQUIREMENT.  INDEED, THE
STATE CONCEDED IN ITS PLEADINGS BEFORE THE TRIAL COURT THAT REJECTIONS
OF FLORIDA AVOCADOS HAD AVERAGED IN RECENT YEARS AS MUCH AS 6.4% OF THE
TOTAL SHIPMENTS OF FLORIDA FRUIT INTO CALIFORNIA.  WHILE THESE
CONCESSIONS WERE NOT CORROBORATED BY STATISTICAL PROOFS AT TRIAL, AND
THUS DO NOT FORM AN ADEQUATE BASIS FOR THE ENTRY OF A FINAL INJUNCTION,
THEY NEVERTHELESS SUPPLIED AN ADEQUATE BASIS, APART FROM THE
REQUIREMENT OF OUR REMAND, FOR THE DISTRICT COURT'S PROCEEDING TO TRIAL
ON THE MERITS. 

IN ADDITION, IT IS CLEAR THAT THE CALIFORNIA OFFICIALS WILL CONTINUE
TO ENFORCE THE STATUTE AGAINST THE FLORIDA-GROWN AVOCADOS, FOR THE
STATE'S ANSWER TO THE COMPLAINT DECLARED THAT THESE OFFICIALS "HAVE IN
THE PAST AND NOW STAND READY TO PERFORM THEIR DUTIES UNDER THEIR OATH
OF OFFICE SHOULD THEY ACQUIRE KNOWLEDGE OF VIOLATIONS OF THE
AGRICULTURAL CODE OF THE STATE OF CALIFORNIA," THUS THE DISTRICT COURT,
BOTH ON THE PLEADINGS BEFORE IT, AND IN LIGHT OF OUR OPINION IN
JACOBSEN, PROPERLY HEARD THE REMANDED CASE ON THE MERITS AND DID NOT
ERR IN REFUSING TO DISMISS FOR WANT OF EQUITY JURISDICTION. 

THE CROSS-APPELLANTS RELY UPON THE COURT'S FINDING OF FACT THAT
"PLAINTIFFS HAVE NEITHER SUFFERED NOR BEEN THREATENED WITH IRREPARABLE
INJURY."  THIS FINDNG WAS, HOWEVER, ADOPTED PURSUANT TO THAT COURT'S
PRIOR OPINION, WHICH STATED THAT "PLAINTIFFS' MONETARY LOSSES AS A
RESULT OF THE REJECTED SHIPMENTS ARE NOT CLEARLY ESTABLISHED, BUT AT
MOST DO NOT APPEAR TO BE OVER TWO OR THREE THOUSAND DOLLARS."  197 F.
SUPP., AT 783-784.  WE READ THIS FINDING AS IMPORTING NO MORE THAN THE
DISTRICT COURT'S VIEW THAT WHATEVER HARM OR DAMAGE THE FLORIDA GROWERS
MIGHT HAVE SUFFERED FELL SHORT OF THE "IRREPARABLE INJURY" REQUISITE
FOR THE ENTRY OF AN INJUNCTION AGAINST ENFORCEMENT OF THE STATUTE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED FOR A NEW TRIAL LIMITED TO APPELLANTS' CLAIM IN NO. 45 THAT
THE ENFORCEMENT OF SEC. 792 UNREASONABLY BURDENS OR DISCRIMINATES
AGAINST INTERSTATE COMMERCE.  IN THE RESPECT CHALLENGED BY THE CROSS
APPEAL IN NO. 49, THE JUDGMENT IS AFFIRMED.  IT IS SO ORDERED. 

FN1  AVOCADOS NOT MEETING THIS STANDARD MAY NOT BE SOLD IN
CALIFORNIA.  ID., AT 784.  SUBSTANDARD FRUITS ARE "DECLARED TO BE A
PUBLIC NUISANCE," AND THEY MAY BE SEIZED, CONDEMNED, AND ABATED.  ID.,
SEC. 785.  VIOLATORS MAY BE PUNISHED CRIMINALLY, ID., AT SEC. 831 ($50
TO $500 FINE OR IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR BOTH),
AND BY CIVIL PENALTY ACTION, ID., SEC. 785.6 (MARKET VALUE OF FRUITS). 

FN2  THE ORDERS ARE APPROVED BY THE SECRETARY PURSUANT TO SEC. 8C OF
THE AGRICULTURAL ADJUSTMENT ACT, 7 U.S.C. SEC. 608C.  THE BASIC
MARKETING AGREEMENT PROVISIONS WERE INITIALLY ADOPTED, IN SUBSTANTIALLY
THEIR PRESENT FORM, IN THE 1935 AMENDMENTS TO THE AGRICULTURAL
ADJUSTMENT ACT, 49 STAT. 750, 753-761.  THESE SECTIONS WERE REENACTED
IN 1937, 50 STAT. 246, AS THE AGRICULTURAL MARKETING AGREEMENT ACT OF
1937, VIRTUALLY UNCHANGED.  CONCERNING THE REASONS FOR THE REENACTMENT,
AND THE EXTENT OF THE CHANGES, SEE UNITED STATES DEPARTMENT OF
AGRICULTURE, AGRICULTURAL ADJUSTMENT 1937-1938 (1939), 72-73. 

FN3  THE EVIDENCE IN THE RECORD CONCERNING THE ACTUAL EFFECT OF THE
CALIFORNIA MATURITY TEST UPON FLORIDA AVOCADOS IS SKETCHY AT BEST.  THE
APPELLANTS INTRODUCED ONLY ONE WITNESS, A MARKETING EXPERT IN THE
UNITED STATES DEPARTMENT OF AGRICULTURE, WHO TESTIFIED CONCERNING THE
RELATIVE SCIENTIFIC AND OTHER MERITS OF THE FEDERAL AND CALIFORNIA
MATURITY TESTS.  HE GAVE NO TESTIMONY CONCERNING THE ACTUAL IMPACT OF
THE CALIFORNIA REGULATION UPON SHIPMENTS FROM FLORIDA.  ONE OF
APPELLEES' WITNESSES AT TRIAL MADE CURSORY REFERENCES TO THE FACT THAT
CALIFORNIA INSPECTORS HAD REJECTED AND EXCLUDED SOME FLORIDA SHIPMENTS,
BUT THERE WAS NO TESTIMONY CONCERNING THE DATES AND QUANTITIES OF ANY
REJECTIONS.  IN A MOTION FOR DISMISSAL AND AN ACCOMPANYING AFFIDAVIT
BEFORE THE DISTRICT COURT, THE APPELLEES PRESENTED CERTAIN FIGURES
CONCERNING THE PERCENTAGE OF FLORIDA AVOCADOS WHICH FAILED TO COMPLY
WITH THE CALIFORNIA REGULATION DURING THE YEARS 1954 THROUGH 1957. 
THERE WAS, HOWEVER, NEITHER DATA FOR YEARS AFTER 1957 NOR STATISTICAL
PROOF AT THE TRIAL WHICH WOULD CORROBORATE THESE SUMMARY FIGURES. 

FN4  SEE ROCHE, REGULATIONS FOR MARKETING AVOCADOS IN CALIFORNIA, IN
CALIFORNIA AVOCADO ASSN. 1937 YEARBOOK (1937), 88-89, CONCERNING THE
PURPOSE OF THE CALIFORNIA OIL-TEST STATUTE.  IT HAS NOT BEEN CONTENDED
THAT THE PURPOSE OF THIS STATUTE IS TO ENSURE A CERTAIN CALORIC OR
NUTRITIONAL VALUE IN AVOCADOS WHICH REACH THE CONSUMER.  NO HEALTH
ISSUE HAS BEEN RAISED IN THIS CASE.  SEE 197 F. SUPP., AT 785-786. 
FN5  SEE ALSO CHURCH AND CHACE, SOME CHANGES IN THE COMPOSITION OF
CALIFORNIA AVOCADOS DURING GROWTH (U.S. DEPT. OF AGRICULTURE BULL.  NO.
1073, 1922), 2; HODGSON, THE CALIFORNIA AVOCADO INDUSTRY (CALIF. 
AGRICULTURAL EXTENSION SERVICE CIRCULAR NO. 43, 1930), 54-55; HODGES,
IMMATURE AVOCADO SELLING ILLEGAL, 111 PACIFIC RURAL PRESS, APR. 3,
1926, P. 435.  AND FOR A DISCUSSION OF THE PARTICULAR PROBLEMS
ENCOUNTERED IN THE MARKETING OF IMMATURE AVOCADOS IN CALIFORNIA, SEE
ROCHE, SUPRA, NOTE 4, AT 88-89.    FN6  THE NATURE OF THE AVOCADO AND
ITS RIPENING PROCESS MAKE IT VERY DIFFICULT FOR ANY BUT THE EXPERT TO
GAUGE ITS MATURITY, AND AN AVOCADO WHICH MAY APPEAR SATISFACTORY AT THE
TIME OF PURCHASE MAY LATER FAIL TO RIPEN PROPERLY BECAUSE IT WAS
PREMATURELY PICKED.  SEE E.G., RUEHLE, THE FLORIDA AVOCADO INDUSTRY
(UNIV.  OF FLA. AGR.  EXPT.  STATIONS BULL.  NO. 602, 1958), 69;
AVOCADO MATURITY TESTS, 37 CALIFORNIA CITROGRAPH, DEC. 1951, P. 87;
ROCHE, LOOK OUT FOR IMMATURE AVOCADOS, 87 CALIFORNIA CULTIVATOR, NOV.
2, 1940, P. 590; CHURCH AND CHACE, SUPRA, NOTE 5, AT 2. 

FN7  THIS ORDER IS APPLICABLE ONLY TO AVOCADOS GROWN IN THE SOUTH
FLORIDA GROWING AREA.  THE CALIFORNIA GROWERS HAVE NOT ADOPTED A
FEDERAL MARKETING ORDER TO AGREEMENT. 

FN8  THE FINDINGS OF THE UNITED STATES DEPARTMENT OF AGRICULTURE,
CONTAINED IN ITS ORDER DETERMINING WHAT TERMS SHOULD BE CONTAINED IN
THE AVOCADO REGULATIONS, WERE THAT THE MARKETING OF IMMATURE FRUITS
INCREASES CONSUMER RESISTANCE AND MATERIALLY IMPAIRS THE MARKETING OF
THE ENTIRE CROP, THAT THERE WAS NO SATISFACTORY PHYSICAL OR CHEMICAL
TEST FOR DETERMINING MATURITY, AND THAT MATURITY CAN SATISFACTORILY BE
DETERMINED BY THE PICKING-DATE-SIZE METHOD.  HANDLING OF AVOCADOS GROWN
IN SOUTH FLORIDA, 19 FED. REG.  2418, 2424-2425. 

EACH YEAR SINCE 1954, THE SECRETARY HAS ISSUED MATURITY REGULATIONS
FIXING THE DATES UPON WHICH EACH VARIETY OF FLORIDA AVOCADOS MAY BE
PICKED AND SHIPPED.  SEE, E.G., 27 FED. REG. 5135-5136, 6705, 8264
8265, 9174-9175, 10090-10091. 

FN9  SECTION .53 OF THE REGULATIONS, 7 CFR SEC. 969.53, PROVIDES THAT
AN EXEMPTION CERTIFICATE SHALL BE GRANTED TO A GROWER "WHO FURNISHES
PROOF, SATISFACTORY TO THE COMMITTEE, THAT HIS AVOCADOS OF A PARTICULAR
VARIETY ARE MATURE PRIOR TO THE TIME SUCH VARIETY MAY BE HANDLED UNDER
SUCH REGULATION."  SUCH A CERTIFICATE AUTHORIZES THE RECIPIENT TO
"HANDLE" THE CERTIFIED FRUIT, I.E., TO "SELL, CONSIGN, DELIVER, OR
TRANSPORT AVOCADOS WITHIN THE PRODUCTION AREA OR BETWEEN THE PRODUCTION
AREA AND ANY POINT OUTSIDE THEREOF  ...  ."  7 CFR SEC. 969.10. 

FN10  SEE TRAUB ET AL., AVOCADO PRODUCTION IN THE UNITED STATES (U.S.
DEPT. OF AGRICULTURE CIRCULAR NO. 620, 1941), 6-8.  OCCASIONALLY,
HOWEVER, EVEN CALIFORNIA GROWERS HAVE EXPERIENCED DIFFICULTY IN MEETING
THE OIL CONTENT REQUIREMENT, AND SIZABLE SHIPMENTS HAVE HAD TO BE
DESTROYED.  SEE DEMAND FOR AVOCADOS, 74 CALIFORNIA CULTIVATOR, FEB. 8,
1930, P. 167; ROCHE, LOOK OUT FOR IMMATURE AVOCADOS, 87 CALIFORNIA
CULTIVATOR, NOV. 2, 1940, P. 590; CALIFORNIA AVOCADO ASSN. 1937
YEARBOOK (1937), 88. 

FN11  COMPARE HODGSON, THE CALIFORNIA AVOCADO INDUSTRY (CALIF. 
AGRICULTURAL EXTENSION SERVICE CIRCULAR NO. 43, 1930), 39. 

FN12  SEE 19 FED. REG. 2418, 2424-2425; COMPARE HARDING, THE RELATION
OF MATURITY TO QUALITY IN FLORIDA AVOCADOS, 67 FLORIDA STATE
HORTICULTURAL SOCIETY PROCEEDINGS, 276 (1954). 

FN13  IT IS TRUE THAT THE STATUTE INVOLVED IN THE CLOVERLEAF CASE
PROVIDED THAT FEDERAL LAW WAS NOT INTENDED TO DISPLACE STATE LAWS
"ENACTED IN THE EXERCISE OF THE STATES' POLICE POWERS  ...  ."  32
STAT. 193, 21 U.S.C. SEC. 25.  BUT THIS PROVISO WAS PRESUMABLY INTENDED
TO DO NO MORE THAN RECOGNIZE EXPLICITLY AN ACCOMMODATION BETWEEN
FEDERAL AND STATE INTERESTS TO WHICH CONGRESS AND THE DECISIONS OF THIS
COURT HAVE CONSISTENTLY ADHERED.  NOR DID THE COURT'S DEFERENCE TO
STATE REGULATION REST UPON THIS CONGRESSIONAL PROVISO.  RATHER, THE
COURT SIMPLY CONSIDERED IT A WELL-SETTLED PROPOSITION THAT A STATE MAY
IMPOSE UPON IMPORTED FOODSTUFFS "A HIGHER STANDARD DEMANDED  ...  FOR
ITS CONSUMER." 

FN14  IT MIGHT ALSO BE ARGUED THAT THE CALIFORNIA STATUTE, HAVING
BEEN DESIGNED TO TEST THE MATURITY ONLY OF CALIFORNIA AVOCADOS, BEARS
NO RATIONAL RELATIONSHIP TO THE MARKETABILITY OF FLORIDA FRUIT.  SUCH A
CONTENTION WOULD SEEM UNTENABLE, HOWEVER, IN THE FACE OF THE DISTRICT
COURT'S EXPRESS FINDING OF FACT, SUPPORTABLE ON THE TESTIMONY BEFORE
IT, THAT "A STANDARD REQUIRING A MINIMUM OF 8% OF OIL IN AN AVOCADO
BEFORE IT MAY BE MARKETED IS SCIENTIFICALLY VALID AS APPLIED TO HYBRID
AND GUATEMALAN VARIETIES OF AVOCADOS GROWN IN FLORIDA AND MARKETED IN
CALIFORNIA."  AND THERE IS CONSIDERABLE DISPUTE AS TO THE OIL CONTENT
OF FLORIDA AVOCADOS WHICH HAVE BEEN CERTIFIED AS MATURE UNDER THE
FEDERAL REGULATIONS.  SEE NOTE 21, INFRA. 

FN15  THE MARKETING AGREEMENT PROVISIONS WERE ENACTED AMONG THE 1935
AMENDMENTS TO THE AGRICULTURAL ADJUSTMENT ACT, 49 STAT. 750, 753-761. 
THESE AMENDMENTS WERE ACCEPTED BY CONGRESS THE DAY FOLLOWING THE
ENACTMENT OF THE TOBACCO INSPECTION ACT, 49 STAT.  731-735. 

FN16  ALTHOUGH THE MANAGER OF THE AVOCADO ADMINISTRATIVE COMMITTEE
STATED IN HIS DEPOSITION (WHICH WAS NEITHER FORMALLY ADMITTED NOR
EXCLUDED BY THE DISTRICT COURT) THAT THE SECRETARY HAD OCCASIONALLY
REJECTED ORDERS RECOMMENDED BY THE COMMITTEE, HE INSISTED THAT AS TO
MATURITY REGULATIONS "THE SECRETARY HAS ALWAYS FOLLOWED THE COMMITTEE'S
RECOMMENDATIONS." 

FN17  SIGNIFICANT WITH REGARD TO THE ESSENTIALLY LOCAL NATURE OF THE
ORDERS AND THEIR ADMINISTRATION IS THE TESTIMONY IN A DEPOSITION (ON
THE ADMISSIBILITY OF WHICH THE DISTRICT COURT DID NOT RULE) OF THE
SUPERVISING INSPECTOR OF FRUITS AND VEGETABLES OF THE FEDERAL AND STATE
AGRICULTURAL INSPECTION SERVICE FOR THE SOUTH FLORIDA DISTRICT: 

"  ...  THESE REGULATIONS FROM TIME TO TIME ARE SUBJECT TO CHANGE AT
THE DIRECTION OF THE AVOCADO ADMINISTRATIVE COMMITTEE.  WHENEVER THEY
DO CHANGE THEM, MR. BIGGAR, THE MANAGER OF THE AVOCADO ADMINISTRATIVE
COMMITTEE, IMMEDIATELY FURNISHES THE INSPECTION SERVICE WITH COPIES OF
THE EFFECTIVE RULES AND CHANGES.  THERE ARE TIMES WHEN THEY CHANGE
THEM, AND WHEN THEY CHANGE THEM I AM THE FIRST MAN TO GET THE CHANGED
REGULATIONS, BECAUSE I HAVE TO SEE THAT THE INSPECTORS GET THE REVISED
REGULATIONS ISSUED BY THE AVOCADO ADMINISTRATIVE COMMITTEE." 

FOR FURTHER EVIDENCE THAT THE AVOCADO MARKETING AGREEMENT WAS
UNDERTAKEN CHIEFLY AS A "SELF-HELP PROGRAM," DESIGNED ONLY TO REGULATE
SOUTH FLORIDA PRODUCTION AND ENSURE MATURITY OF THE PRODUCE FROM THAT
GROWING AREA, SEE KROME, THE FEDERAL AVOCADO MARKETING AGREEMENT, 67
FLORIDA STATE HORTICULTURAL SOCIETY PROCEEDINGS 268 (1954). 

FN18  COMPARE, E.G., OREGON-WASHINGTON R. & NAV. CO. V. WASHINGTON,
270 U.S. 87; MCDERMOTT V. WISCONSIN, 228 U.S. 115.  SEE GENERALLY NOTE,
FEDERAL INSPECTION LEGISLATION - A PARTIAL REMEDY FOR INTERSTATE TRADE
BARRIERS, 53 HARV. L. REV. 1185 (1940). 

NOR HAVE WE ANY OCCASION TO CONSIDER THE POSSIBLE APPLICABILITY TO
THE SUPREMACY CLAUSE ISSUE OF THE PROVISIONS OF 21 U.S.C. SEC. 341,
SINCE NEITHER PARTY HAS MADE ANY REFERENCE TO THAT STATUTE EITHER
BEFORE THE DISTRICT COURT OR IN THIS COURT. 

FN19  THE DISTRICT COURT ASSUMED THAT IN 1925 CALIFORNIA GROWERS
FACED NO MEANINGFUL COMPETITION FROM FLORIDA GROWERS.  IT APPEARS,
HOWEVER, THAT THE FLORIDA INDUSTRY WAS WELL DEVELOPED WHEN THE
CALIFORNIA INDUSTRY WAS IN ITS INFANCY, SEE COLLINS, THE AVOCADO, A
SALAD FRUIT FROM THE TROPICS, (U.S. DEPT. OF AGRICULTURE BUREAU OF
PLANT INDUSTRY BULL.  NO. 77, 1905), 35-36.  NOT ONLY DOES THERE APPEAR
TO HAVE BEEN VIGOROUS COMPETITION BETWEEN FLORIDA AND CALIFORNIA
PRODUCERS FOR ALL MARKETS IN 1925, SEE POPENOE, THE AVOCADO -
CALIFORNIA VS. FLORIDA, 61 CALIFORNIA CULTIVATOR, NOV. 3, 1923, P. 459;
BUT IN SOME YEARS DURING THE 1920'S THE FLORIDA PRODUCTION EXCEEDED
THAT OF CALIFORNIA.  SEE TRAUB, SUPRA, NOTE 10 AT 2.  SEE GENERALLY
HODGSON, SUPRA, NOTE 5, AT 60, 82-83. 

THE PASSAGE OF THE CALIFORNIA STATUTE WAS IMMEDIATELY AND VIGOROUSLY
PROTESTED BY FLORIDA PRODUCERS, AND A UNITED STATES SENATOR FROM
FLORIDA FILED AN INFORMAL COMPLAINT WITH THE DEPARTMENT OF AGRICULTURE,
SEE, E.G., CALIFORNIA AVOCADO LAW UNFAIR TO FLORIDA:  NEW PACIFIC COAST
MATURITY STANDARDS PRACTICALLY BAN ALL SHIPMENTS FROM THIS STATE, 32
FLORIDA GROWER, NOV. 7, 1925, PP. 4, 22.   SEE ALSO ID., NOV. 21, 1925,
P. 15.  EVEN IN CALIFORNIA THERE WAS CONTEMPORANEOUS RECOGNITION THAT
PASSAGE OF THE STATUTE SEVERELY RESTRICTED THE ACCESS OF FLORIDA
GROWERS TO THE MARKETS AT LEAST OF NORTHERN CALIFORNIA, SEE HODGSON,
THE FLORIDA AVOCADO INDUSTRY - A SURVEY II, 66 CALIFORNIA CULTIVATOR,
JUNE 26, 1926, PP. 721, 743.  AND SEE 80 AMERICAN FRUIT GROWER, FEB.
1960, P. 64. 

ON THE OTHER HAND, THERE HAVE BEEN SUGGESTIONS THAT NEITHER THE
ADOPTION NOR THE APPLICATION OF THE CALIFORNIA STATUTE REFLECTED ANY
DISCRIMINATORY OR ANTICOMPETITIVE PURPOSE.  IN SOME YEARS, CALIFORNIA
GROWERS THEMSELVES EXPERIENCE GREAT DIFFICULTY MEETING THE OIL CONTENT
REQUIREMENT, SIZABLE SHIPMENTS MUST BE DESTROYED - SEE DEMAND FOR
AVOCADOS, 74 CALIFORNIA CULTIVATOR, FEB. 8, 1930, P. 167; ROCHE, LOOK
OUT FOR IMMATURE AVOCADOS, 87 CALIFORNIA CULTIVATOR, NOV. 2, 1940, P.
590; CALIFORNIA AVOCADO ASSN., 1937 YEARBOOK (1937), 88 - EVEN THOUGH
THE OIL CONTENT OF MATURE CALIFORNIA AVOCADOS IN GOOD YEARS RUNS
SUBSTANTIALLY ABOVE 8%, SEE TRAUB, SUPRA, NOTE 10, AT 6-8.  MOREOVER,
THE CALIFORNIA GROWERS' ASSOCIATION HAS REGARDED ITS ABILITY TO MARKET
FLORIDA FRUIT DURING THE MONTHS WHEN CALIFORNIA FRUIT IS NOT AVAILABLE
AS STRENGTHENING RATHER THAN WEAKENING ITS OWN MARKET POSITION.  SEE
FOURTEENTH ANNUAL REPORT OF THE GENERAL MANAGER OF THE CALAVO GROWERS
OF CALIFORNIA (1937), 20.  PLAINLY THE QUESTIONS INDICATED BY THESE
CONFLICTING MATERIALS CAN BE RESOLVED ONLY AT TRIAL FULLY DEVELOPING
THE COMMERCE CLAUSE ISSUE. 

FN20  AT THE VERY CLOSE OF THE TRIAL, TWO OF THE THREE MEMBERS OF THE
COURT OFFERED INCONSISTENT VIEWS WHEN APPELLEES' COUNSEL ASKED FOR
CLARIFICATION CONCERNING THE STATUS OF APPELLANTS' DISPUTED DEPOSITIONS
AND EXHIBITS.  ONE MEMBER OF THE COURT REPLIED THAT "YOUR OBJECTIONS
STAND TO EVERY WORD THAT IS IN THESE DEPOSITIONS HERE," WHILE ANOTHER
RESPONDED, "THEY ARE ALL IN EVIDENCE SUBJECT TO YOUR OBJECTIONS AND THE
COURT WILL RULE ON THEM WHEN IT MAKES ITS RULING IN THE CASE IF IT IS
NECESSARY." 

FN21  SPECIFICALLY, APPELLEES OFFERED TO SHOW THAT IN MEASURING THE
OIL CONTENT OF AVOCADOS THE FLORIDA EXPERIMENTAL TEST PROCEDURES DID
NOT EMPLOY THE SAME EQUIPMENT AS IS USED IN CALIFORNIA, THE FORMER, SO
IT WAS CONTENDED, EXTRACTING LESS OIL THAN THE CALIFORNIA EQUIPMENT
WOULD OBTAIN FROM THE SAME AVOCADO.  THEY CLAIMED THAT THE AVERAGE
VARIATION AMOUNTED TO A FAILURE OF THE FLORIDA EQUIPMENT TO REMOVE 2.9%
OF THE OIL FROM THE FRUIT, AND, FURTHER, THAT THE FLORIDA RESULTS WERE
ERRATIC.  IN ADDITION, APPELLEES ASSERTED THAT THE AVOCADOS USED IN THE
FLORIDA EXPERIMENTS WERE NOT REPRESENTATIVE OF THE GRADED, SIZED, AND
INSPECTED FRUIT THAT APPELLANTS WOULD NORMALLY MARKET. 

MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS
AND MR. JUSTICE CLARK JOIN, DISSENTING IN NO. 45. 

THIS IS THE SECOND TIME THIS CASE HAS COME BEFORE THE COURT.  IN
FLORIDA LIME & AVOCADO GROWERS, INC., V. JACOBSEN, 362 U.S. 73, THE
CASE WAS HERE FOR REVIEW OF DISMISSAL OF THE COMPLAINT FOR WANT OF
JURISDICTION.  THE COURT REVERSED AND REMANDED FOR TRIAL AND THE CASE
IS NOW HERE ON THE MERITS, AFTER THE THREE-JUDGE DISTRICT COURT REFUSED
TO ENJOIN THE APPELLEE STATE OFFICERS FROM ENFORCING SEC. 792 OF THE
CALIFORNIA AGRICULTURAL CODE AGAINST THE APPELLANT GROWERS.  197 F.
SUPP. 780, PROBABLE JURISDICTION NOTED, 368 U.S. 964, 965.  IN VIEW OF
THE COURT'S DISPOSITION OF THE MATTER TODAY, IT IS PROBABLE THAT THIS
CASE LIKE A REVENANT WILL RETURN TO US WITHIN ANOTHER FEW TERMS WITH A
STILL MORE COPIOUS RECORD. 

APPELLANTS GROW, PACKAGE, AND MARKET FLORIDA AVOCADOS IN INTERSTATE
COMMERCE, SUBJECT TO THE APPLICABLE PROVISIONS OF SEC. 8C OF THE
AGRICULTURAL ADJUSTMENT ACT, AS AMENDED, 7 U.S.C. SEC. 608C, AND THE
REGULATIONS OF THE SECRETARY OF AGRICULTURE PROMULGATED THEREUNDER.  AN
AVERAGE OF 6.4% OF THE FLORIDA AVOCADOS SHIPPED TO CALIFORNIA EACH YEAR
ARE BARRED FOR FAILURE TO SATISFY THE REQUIREMENTS OF CALIFORNIA
AGRICULTURAL CODE SEC. 792, (FN1) WHICH PROVIDES IN PERTINENT PART THAT
"ALL AVOCADOS, AT THE TIME OF PICKING, AND AT ALL TIMES THEREAFTER,
SHALL CONTAIN NOT LESS THAN 8 PER CENT OF OIL BY WEIGHT OF THE AVOCADO
EXCLUDING THE SKIN AND SEED."  (FN2)  APPELLANTS BASED THEIR CLAIM FOR
RELIEF UPON THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT,
THE COMMERCE CLAUSE, AND THE SUPREMACY CLAUSE.  SINCE WE IN THE
MINORITY HAVE CONCLUDED THAT THE AGRICULTURAL ADJUSTMENT ACT AND
REGULATIONS PROMULGATED THEREUNDER LEAVE NO ROOM FOR THIS INCONSISTENT
AND CONFLICTING STATE LEGISLATION, WE REACH ONLY THE SUPREMACY CLAUSE
ISSUE. 

THE CALIFORNIA STATUTE WAS ENACTED IN 1925, WHEN, ACCORDING TO THE
DISTRICT COURT, PRACTICALLY ALL THE AVOCADOS IN THE UNITED STATES CAME
FROM THAT STATE.  197 F. SUPP., AT 782.  THE PURPOSE OF THIS
LEGISLATION WAS TO PREVENT THE MARKETING OF IMMATURE AVOCADOS.  WHICH
NEVER RIPEN PROPERLY, BUT DECAY OR SHRIVEL UP AND BECOME RUBBERY AND
UNPALATABLE AFTER PURCHASE BY THE CONSUMER.  (FN3)  IBID.  THE EFFECT
OF MARKETING IMMATURE AVOCADOS IS TO "CHEAT THE CONSUMER," AND THUS
HAVE "A BAD (ECONOMIC) EFFECT UPON RETAILERS AND PRODUCERS AS A WHOLE,
SINCE IT INCREASES FUTURE SALES RESISTANCE" AGAINST BUYING AVOCADOS. 
ID., AT 783.    IN 1925, WHEN THE STATE LAW WAS ENACTED, MOST OF THE
AVOCADOS GROWN IN CALIFORNIA WERE, AS THEY ARE AT THE PRESENT TIME,
FROM TREES DERIVED FROM MEXICAN VARIETIES.  SUCH AVOCADOS CONTAIN AT
LEAST 8% OIL WHEN MATURE.  THE FLORIDA AVOCADO GROWERS, HOWEVER, THE
ONLY SUBSTANTIAL COMPETITORS OF THE CALIFORNIA GROWERS, 197 F. SUPP.,
AT 787, N. 8, DEPEND IN SUBSTANTIAL PART ON TREES OF NONMEXICAN
PARENTAGE.  THE FLORIDA AVOCADOS INVOLVED HERE, HYBRID AND GUATEMALAN
VARIETIES, MAY REACH MATURITY AND BE ACCEPTABLE FOR MARKETING, AT LEAST
UNDER FEDERAL STANDARDS, PRIOR TO REACHING AN 8% OIL CONTENT.  (FN4) 

THERE IS EXPERT OPINION TO THE EFFECT THAT THE BEST GAUGE OF MATURITY
IS THE PERCENTAGE OF OIL CONTAINED IN THE FRUIT.  ID., AT 783. 
CALIFORNIA HAS ADOPTED THAT PHYSICAL-CHEMICAL TEST IN SEC. 792.  THERE
IS ALSO EXPERT OPINION THAT THE BEST TEST OF MATURITY IS THE DATE ON
WHICH THE FRUIT IS PICKED, AND ITS SIZE AND WEIGHT AT SUCH TIME.  IBID.
THE UNITED STATES SECRETARY OF AGRICULTURE HAS ADOPTED THAT TEST FOR
MEASURING MATURITY OF AVOCADOS FOR RIPENING, AND HAS SPECIFICALLY
REJECTED AS UNSATISFACTORY ALL PHYSICAL AND CHEMICAL TESTS.  HANDLING
OF AVOCADOS GROWN IN SOUTH FLORIDA, 19 FED. REG. 2418, 2424-2425 (DEPT.
AGR.  DKT.  NO. AO-254).  THE DISTRICT COURT FOUND THE CALIFORNIA OIL
TEST TO BE OF THE LATTER TYPE. 

                                        I. 

THE AGRICULTURAL ADJUSTMENT ACT, SEC. 8C, 7 U.S.C. SEC. 608C,
PROVIDES THAT, WHENEVER THE SECRETARY "HAS REASON TO BELIEVE THAT THE
ISSUANCE OF AN ORDER WILL TEND TO EFFECTUATE THE DECLARED POLICY" OF
THE ACT, WHICH IS "TO ESTABLISH AND MAINTAIN SUCH MINIMUM STANDARDS OF
QUALITY AND MATURITY  ...  FOR FRUIT IN INTERSTATE COMMERCE AS WILL
EFFECTUATE  ...  THE ORDERLY MARKETING OF ...  AGRICULTURAL COMMODITIES
AS WILL BE IN THE PUBLIC INTEREST," SEC. 2(3), 7 U.S.C. SEC. 602(3), HE
SHALL GIVE NOTICE FOR AND HOLD A HEARING UPON A PROPOSED ORDER.  IN THE
CASE OF FRUITS, SEC. 8C(6)(A) PROVIDES THAT THE SECRETARY MAY LIMIT OR
PROVIDE METHODS FOR THE LIMITATION OF QUALITY OF PRODUCE "WHICH MAY BE
MARKETED IN OR TRANSPORTED TO ANY OR ALL MARKETS IN THE CURRENT OF
INTERSTATE OR FOREIGN COMMERCE  ...  ," OR AFFECTING COMMERCE, DURING
ANY SPECIFIED PERIOD. 

ORDERS PROPOSED BY THE SECRETARY UNDER THIS STATUTE BECOME EFFECTIVE
ONLY WHEN APPROVED BY A MAJORITY OF THE AFFECTED GROWERS.  SEE SEC.
8C(8)-(9).  IN 1954 THE SECRETARY HELD HEARINGS AND FOUND THAT A
MAJORITY OF THE SOUTH FLORIDA AVOCADO GROWERS FAVORED IMPOSITION OF
QUALITY AND MATURITY STANDARDS FOR AVOCADOS PURSUANT TO A MARKETING
ORDER PROMULGATED UNDER THE ACT.  19 FED. REG. 3439.  (FN5)  THE ORDER,
ID., AT 3440-3443, AS AMENDED, 7 CFR SEC. 915.1-.71 (FORMERLY SECS.
969.1-969.71), ESTABLISHES AN AVOCADO ADMINISTRATIVE COMMITTEE,
COMPRISED OF SOUTH FLORIDA AVOCADO GROWERS AND SHIPPERS, WITH THE POWER
TO RECOMMEND MARKETING REGULATIONS TO THE SECRETARY RELATING TO QUALITY
AND MATURITY STANDARDS AND PROHIBITING THE MARKETING OF SUBSTANDARD
FRUITS.  (FN6)  IT IS SPECIFICALLY CONTEMPLATED IN SEC. .51 THAT SUCH
MATURITY STANDARDS BE BASED ON A PICKING-DATE SCHEDULE, AND OTHER TESTS
ARE REJECTED AS UNSATISFACTORY.  SECTION .53 PROVIDES THAT EXEMPTION
FROM THE REGULAR PICKING-DATE REGULATIONS OF SEC. .51 BE ALLOWED FOR
PORTIONS OF AVOCADO CROPS OF PARTICULAR VARIETIES WHEN THEY ARE PROVED
TO BE MATURE PRIOR TO THE PRESCRIBED PICKING DATE.  (FN7) ALL REGULATED
AVOCADOS, INCLUDING THOSE WITH SO-CALLED PICKING-DATE EXEMPTION
CERTIFICATES, MUST BE INSPECTED BY THE FEDERAL-STATE INSPECTION
SERVICE, A UNITED STATES DEPARTMENT OF AGRICULTURE AND FLORIDA
DEPARTMENT OF AGRICULTURE JOINT SERVICE, AND BE CERTIFIED AS MEETING
THE PRESCRIBED QUALITY AND MATURITY STANDARDS BEFORE THEY MAY BE
MARKETED.  SEC. .54.  (FN8) AT VARIOUS TIMES, OTHER REGULATIONS
GOVERNING FLORIDA AVOCADOS HAVE BEEN ISSUED WHICH INCLUDE MORE SPECIFIC
QUALITY STANDARDS, SEE 22 FED. REG. 6205, 7 CFR SECS. 51.3050-51.3053,
51.3058.  THESE QUALITY STANDARDS REQUIRE THAT THE FRUIT BE "MATURE,"
FOR ALL GRADES OF AVOCADOS, BUT, AS IN THE CASE OF THE MAIN ORDER, THEY
DO NOT REFER TO OIL CONTENT.  (FN9)  SINCE 1954, EACH YEAR THE
SECRETARY HAS ISSUED MATURITY REGULATIONS FIXING THE DATES WHEN AND
MINIMUM SIZES AT WHICH THE VARIOUS VARIETIES OF FLORIDA AVOCADOS MAY BE
PACKED AND SHIPPED.  (FN10)  THESE REGULATIONS ARE RECOMMENDED BY THE
COMMITTEE, PURSUANT TO 7 CFR SECS. 915.50-915.51, APPROVED BY THE
SECRETARY AFTER CONSIDERATION AND MODIFICATION IF NECESSARY, 7 CFR SEC.
915.52(B), AND PUBLISHED IN THE FEDERAL REGISTER, AFTER WHICH THEY HAVE
THE FORCE OF LAW.  CALIFORNIA COMM'N V. UNITED STATES, 355 U.S. 534,
542-543; STANDARD OIL CO. V. JOHNSON, 316 U.S. 481, 484; MARYLAND CAS.
CO. V. UNITED STATES, 251 U.S. 342, 349. 

                   II. 

THE ULTIMATE QUESTION FOR THE COURT IS WHETHER THE CALIFORNIA LAW MAY
VALIDLY APPLY TO FLORIDA AVOCADOS WHICH THE SECRETARY OR HIS INSPECTOR
SAYS ARE MATURE UNDER THE FEDERAL SCHEME.  WE IN THE MINORITY BELIEVE
THAT IT CANNOT, FOR IN OUR VIEW THE CALIFORNIA LAW "STANDS AS AN
OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND
OBJECTIVES OF CONGRESS."  HINES V. DAVIDOWITZ, 312 U.S. 52, 67. 
(FN11) 

THE CENTRAL AND UNAVOIDABLE FACT IS THAT SIX OUT OF EVERY 100 FLORIDA
AVOCADOS CERTIFIED AS MATURE BY FEDERAL STANDARDS ARE TURNED AWAY FROM
THE CALIFORNIA MARKETS AS BEING IMMATURE, AND ARE EXCLUDED FROM THAT
STATE BY THE APPLICATION OF A MATURITY TEST DIFFERENT FROM THE FEDERAL
MEASURE.  CONGRESS EMPOWERED THE SECRETARY TO PROVIDE FOR THE ORDERLY
MARKETING OF AVOCADOS AND TO SPECIFY THE QUALITY AND MATURITY OF
AVOCADOS TO BE TRANSPORTED IN INTERSTATE COMMERCE TO ANY AND ALL
MARKETS.  ALTHOUGH THE SECRETARY DETERMINED THAT THESE FLORIDA AVOCADOS
WERE MATURE BY FEDERAL STANDARDS AND FIT FOR SALE IN INTERSTATE
MARKETS, THE STATE OF CALIFORNIA DETERMINED THAT THEY WERE UNFIT FOR
SALE BY APPLYING A TEST OF THE TYPE WHICH THE SECRETARY HAD DETERMINED
TO BE UNSATISFACTORY.  WE THINK THE STATE LAW HAS ERECTED A SUBSTANTIAL
BARRIER TO THE ACCOMPLISHMENT OF CONGRESSIONAL OBJECTIVES. 

WE WOULD HESITATE TO STRIKE DOWN THE CALIFORNIA STATUTE IF THE STATE
REGULATION TOUCHED A PHASE OF THE SUBJECT MATTER NOT REACHED BY THE
FEDERAL LAW AND A CLAIM WERE NEVERTHELESS MADE THAT SUCH COMPLEMENTARY
STATE REGULATION IS PREEMPTED, COMPARE CAMPBELL V. HUSSEY, 368 U.S.
297, WITH SAVAGE V. JONES, 225 U.S. 501.  BUT HERE THE SECRETARY HAS
PROMULGATED A COMPREHENSIVE AND PERVASIVE REGULATORY SCHEME FOR
DETERMINING THE QUALITY AND MATURITY OF FLORIDA AVOCADOS, PURSUANT TO
THE STATUTORY MANDATE TO "EFFECTUATE ORDERLY MARKETING OF SUCH
AGRICULTURAL COMMODITIES."  HE PRESCRIBES IN MINUTE DETAIL THE
STANDARDS FOR THE SIZE, APPEARANCE, SHAPE, AND MATURITY OF AVOCADOS. 
INSPECTION PROCEDURES AND, FOR VIOLATION OF THE REGULATIONS, CRIMINAL
AND CIVIL SANCTIONS ARE PROVIDED.  NO GAP EXISTS IN THE REGULATORY
SCHEME WHICH WOULD WARRANT STATE ACTION TO PREVENT THE EVILS OF A NO
MAN'S LAND - AT LEAST IN RELATION TO THE ISSUES PRESENTED IN THIS
CASE.  COMPARE INTERNATIONAL UNION V. WISCONSIN BOARD, 336 U.S. 245,
254.  NO ASPECTS OF AVOCADO MATURITY ARE OMITTED UNDER THE FEDERAL
REGULATIONS.  (FN12)  ANY ADDITIONAL STATE REGULATION TO "SUPPLEMENT"
FEDERAL REGULATION WOULD PRO TANTO SUPPLANT IT WITH ANOTHER SCHEME,
THEREBY COMPROMISING TO SOME DEGREE THE CONGRESSIONAL POLICY EXPRESSED
IN THE ACT.  (FN13) 

BY CONTRAST, IN PARKER V. BROWN, 317 U.S. 341, UPON WHICH APPELLEES
SEEK TO RELY, THE FEDERAL AGRICULTURAL REGULATORY SCHEME WAS PARTIAL
AND INCOMPLETE.  IT WAS CONTENDED THAT SEC. 8C OF THE AGRICULTURAL
ADJUSTMENT ACT, BY ITS OWN FORCE, PREEMPTED APPLICATION OF THE
CALIFORNIA AGRICULTURAL PRORATE ACT.  THE COURT HELD THAT SINCE NO
MARKETING ORDER CONCERNING THE AFFECTED COMMODITIES HAD BEEN
PROMULGATED UNDER SEC. 8C, AND SINCE THE ACT'S POLICIES THEREFORE MUST
BE DEEMED BY THE SECRETARY NOT TO BE EFFECTUATED BY ENTRY INTO THE
FIELD, IT FOLLOWED THAT THERE WAS NO PREEMPTION: "IT IS EVIDENT,
THEREFORE, THAT THE MARKETING ACT CONTEMPLATES THE EXISTENCE OF STATE
PROGRAMS AT LEAST UNTIL SUCH TIME AS THE SECRETARY SHALL ESTABLISH A
FEDERAL MARKETING PROGRAM  ...  ."  ID., AT 354.  (FN14)  IN THE CASE
AT BAR, OF COURSE, THE SECRETARY HAS ENTERED THE FIELD WITH HIS OWN
COMPREHENSIVE REGULATORY PROGRAM WITH WHICH THE STATE PROGRAM
CONFLICTS. 

NOR DOES THE CALIFORNIA STATUTE FURTHER A DISTINCTIVE INTERST OF THE
STATE DIFFERENT FROM THE ONE WHICH THE FEDERAL SCHEME PROTECTS. 
COMPARE HURON CO. V. DETROIT, 362 U.S. 440; UNION BROKERAGE CO. V.
JENSEN, 322 U.S. 202.  THERE IS NO HEALTH INTEREST HERE.  THE QUESTION
IS, AS THE DISTRICT COURT RECOGNIZED, 197 F. SUPP., AT 782-783, A
PURELY ECONOMIC ONE:  THE MARKETING OF IMMATURE AVOCADOS, WHICH DO NOT
RIPEN PROPERLY AFTER PURCHASE BY THE CONSUMER BUT INSTEAD SHRIVEL UP
AND DECAY, HAS A SUBSTANTIAL ADVERSE EFFECT ON CONSUMER DEMAND FOR
AVOCADOS.  ACCORDING TO THE TESTIMONY OF APPELLEES' EXPERT FROM THE
CALIFORNIA DEPARTMENT OF AGRICULTURE, SEC. 792 WAS "DEEMED TO BE
NECESSARY BY REPRESENTATIVES IN THE INDUSTRY DUE TO DEPLORABLE
MARKETING CONDITIONS" - THE SALE OF IMMATURE AVOCADOS, WHICH WAS
SEVERELY "DAMAGING THE REPUTATION OF THE INDUSTRY BY PROVIDING
CONSUMERS WITH UNDESIRABLE AVOCADO FRUITS."  DESPITE THE REPEATED
SUGGESTIONS TO THIS EFFECT IN THE COURT'S OPINION, THERE IS NO
INDICATION THAT THE STATE REGULATORY SCHEME HAS ANY PURPOSE OTHER THAN
PROTECTING THE GOOD WILL OF THE AVOCADO INDUSTRY - SUCH AS PROTECTING
HEALTH OR PREVENTING DECEPTION OF THE PUBLIC - UNLESS AS A PURELY
INCIDENTAL BY-PRODUCT.  SIMILAR FINDINGS ON DAMAGE TO THE INDUSTRY
BECAUSE SOME GROWERS MARKETED IMMATURE AVOCADOS ARE CONTAINED IN THE
UNITED STATES DEPARTMENT OF AGRICULTURE ORDER WHICH PRECEDED THE
ISSUANCE OF THE FEDERAL REGULATIONS.  19 FED. REG., AT 2419, 2424. 
THESE TWO REGULATORY SCHEMES HAVE PRECISELY THE SAME PURPOSE, WHICH IS
PURELY AN ECONOMIC ONE; THEY SEEK TO ACHIEVE IT, HOWEVER, BY APPLYING
DIFFERENT TESTS TO THE SAME AVOCADOS. 

WE ALSO BELIEVE THAT THE PURPOSE AND OBJECTIVE OF CONGRESS AND OF THE
MARKETING ORDER PROMULGATED UNDER ITS AUTHORITY CALL FOR THE
APPLICATION OF UNIFORM STANDARDS OF QUALITY, EVEN ABSENT THE TOTAL
OCCUPATION OF THE FIELD BY THE FEDERAL REGULATORY SCHEME.  SEE GUSS V.
UTAH BOARD, 353 U.S. 1; GIBBONS V. OGDEN, 9 WHEAT.  1.  LACK OF
UNIFORMITY TENDS TO OBSTRUCT COMMERCE, TO DIVIDE THE NATION INTO MANY
MARKETS.  WHEN PRODUCE IS ACCEPTED OR REJECTED IN DIFFERENT LOCALITIES
DEPENDING UPON LOCAL VAGARIES, THE FLOW OF COMMERCE IS INEVITABLY
INTERRUPTED, HINDERED, AND DIMINISHED.  IN RECOGNITION OF THIS NEED FOR
UNIFORMITY, CONGRESS STATED AT THE OUTSET OF THE AGRICULTURAL
ADJUSTMENT ACT: 

"IT IS DECLARED THAT THE DISRUPTION OF THE ORDERLY EXCHANGE OF
COMMODITIES IN INTERSTATE COMMERCE ...  DESTROYS THE VALUE OF
AGRICULTURAL ASSETS WHICH SUPPORT THE NATIONAL CREDIT STRUCTURE  ...
AND BURDENS AND OBSTRUCTS  ...  COMMERCE. 

"IT IS DECLARED TO BE THE POLICY OF CONGRESS  ...  TO ESTABLISH AND
MAINTAIN SUCH MINIMUM STANDARDS OF QUALITY AND MATURITY AND SUCH
GRADING AND INSPECTION REQUIREMENTS FOR AGRICULTURAL COMMODITIES  ...
AS WILL EFFECTUATE  ...  ORDERLY MARKETING  ...  ."  SECS.  1, 2, 7
U.S.C. SECS. 601, 602. 

THE LANGUAGE OF THE STATUTE IS BUTTRESSED BY THE COMMITTEE REPORTS,
H.R. REP. NO. 1241, 74TH CONG., 1ST SESS., AT 22; S. REP. NO. 1011,
74TH CONG., 1ST SESS., AT 15, WHERE IT IS SAID IN EXPLANATION OF SEC.
10(I) THAT THE SECRETARY IS AUTHORIZED TO NEGOTIATE WITH STATE
AUTHORITIES IN ORDER TO SECURE THEIR VOLUNTARY COMPLIANCE IN CARRYING
OUT THE DECLARED POLICY OF THE ACT OF UNIFORMITY OF REGULATORY
PROGRAMS. 

THE CONTENTION IS MADE THAT SEC. 8C(11) NEGATIVES THE POLICY
DECLARATION THAT UNIFORMITY IS SOUGHT BY THE ACT.  THAT SECTION DIRECTS
THE SECRETARY TO ISSUE ORDERS LIMITED TO AS SMALL A GEOGRAPHIC REGION
AS PRACTICABLE IN ORDER TO INSURE THAT DUE RECOGNITION BE ACCORDED TO
LOCAL CONDITIONS OF SOIL, CLIMATE, AND THE LIKE.  THIS PROVISION
RECOGNIZES THAT WHILE UNIFORMITY AT THE MARKET-END OF THE FLOW OF
COMMERCE MAY BE NECESSARY TO PREVENT BURDENS ON COMMERCE IN PRODUCE,
NATIONWIDE UNIFORMITY MAY BE NEITHER NECESSARY NOR DESIRABLE AT THE
PRODUCTION-END OF THE FLOW OF COMMERCE.  IT MAY BE, AS THE COURT
SUGGESTS, THAT THE SECRETARY MIGHT FIND FOR OTHER AVOCADO GROWING
REGIONS, IF THERE WERE ANY, THAT DIFFERENT TESTS FURNISHED THE MOST
CONVENIENT INDEX OF MATURITY FOR THOSE AVOCADOS.  BUT IT DOES NOT
FOLLOW FROM THIS PREMISE THAT THE STATUTORY SCHEME WILL PERMIT EQUALLY
VARIED STANDARDS IN THE NATION'S VARIOUS MARKET PLACES.  SECTION 8C(11)
DOES NOT CONTEMPLATE SUCH REGIONAL VARIATIONS NOR WOULD THEY COMPORT
WITH THE STATUTORY PURPOSE.  IT MAY NOT OBSTRUCT OR BURDEN COMMERCE TO
ADMIT AVOCADOS INTO COMMERCE ON DIVERSE BASES IN DIFFERENT PARTS OF THE
COUNTRY; ANY INDIVIDUAL GROWER IN THAT SITUATION WOULD FACE BUT ONE
STANDARD.  BUT IT DOES BURDEN COMMERCE AND FRUSTRATE THE CONGRESSIONAL
PURPOSE WHEN EACH GROWER FACES DIFFERENT STANDARDS IN DIFFERENT
MARKETS.  TO SLIP FROM PERMISSIBLE NONUNIFORMITY AT ONE END OF THE
STREAM OF COMMERCE TO PERMISSIBLE NONUNIFORMITY AT THE OTHER END THUS
IS TO READ THE STATUTE TOO CASUALLY AND GLOSS OVER THE CONGRESSIONAL
PURPOSE, WHICH EXPRESSLY WAS TO FACILITATE MARKETING IN AND
TRANSPORTATION TO "ANY AND ALL MARKETS IN THE CURRENT OF INTERSTATE
COMMERCE." 

IT IS ALSO SUGGESTED THAT THE USE OF THE TERM "MINIMUM STANDARDS"
INDICATES A LACK OF DESIRE FOR UNIFORMITY.  THIS READS TOO MUCH INTO A
PHRASE, FOR IT IS A COMMONPLACE THAT WHEN THE APPROPRIATE FEDERAL
REGULATORY AGENCY ADOPTS MINIMUM STANDARDS WHICH ON BALANCE SATISFY THE
NEEDS OF THE SUBJECT MATTER WITHOUT DISPROPORTIONATE BURDEN ON THE
REGULATEES, THE BALANCE STRUCK IS NOT TO BE UPSET BY THE IMPOSITION OF
HIGHER LOCAL STANDARDS.  SEE FOR EXAMPLE SOUTHERN R. CO. V. RAILROAD
COMM'N, 236 U.S. 439.  AND WHEN THE CUMULATIVE OPERATION OF MORE STRICT
LOCAL LAW IS TO BE CONTINUED IN SUCH CIRCUMSTANCES, DESPITE THE
CONGRESSIONAL BALANCE STRUCK, CONGRESS HAS SO PROVIDED IN EXPRESS
TERMS.  FOR EXAMPLE, IN RICE V. BOARD OF TRADE, 331 U.S. 247, 255, IT
WAS NOTED THAT THE FEDERAL STATUTE PROVIDED THAT "NOTHING IN THIS
APPLICABLE TO ANY TRANSACTION ENUMERATED OR DESCRIBED IN SUCH
461; CLOVERLEAF CO. V. PATTERSON, 315 U.S. 148, 161-162.    NOTHING IN
THE ACT, MARKETING ORDER, OR LEGISLATIVE HISTORY SHOWS ANY
CONGRESSIONAL INTENTION TO ACCOMMODATE OR PERMIT STATE CONTROLS
INCONSISTENT WITH FEDERAL LAW OR MARKETING ORDERS ISSUED THEREUNDER. 
THE AUTHORIZATION CONTAINED IN SEC. 10(I) TO SEEK THE COOPERATION OF
STATE AUTHORITIES IN PURSUIT OF THE GOAL OF UNIFORM STANDARDS OF
QUALITY AND MATURITY CARRIES NO IMPLICATION THAT STATE STANDARDS
CONTRARY TO THE FEDERAL ARE TO STAND.  THE SECRETARY WAS NOT DIRECTED
TO DEFER TO ANY STATE.  THE FACT IS THAT HE DID WORK OUT A COOPERATIVE
SCHEME WITH THE STATE OF FLORIDA WHERE THE AVOCADOS INVOLVED IN THIS
CASE ARE GROWN.  THESE AVOCADOS, WHICH CALIFORNIA REJECTED, WERE
JOINTLY INSPECTED BY FEDERAL AND STATE AUTHORITIES APPLYING THE SAME
STANDARDS IN ORDER TO MOVE MATURE AVOCADOS INTO THE STREAM OF
INTERSTATE COMMERCE.  TO READ INTO AN AUTHORIZATION TO THE SECRETARY TO
COOPERATE WITH THE STATES A DIRECTION THAT HE COOPERATE WITH, OR THAT
HIS REGULATORY SCHEME DEFER TO, NOT ONLY THE STATE DIRECTLY AFFECTED BY
A MARKETING ORDER BUT EVERY OTHER STATE IN WHICH AVOCADOS MIGHT BE SOLD
WOULD CLEARLY FRUSTRATE THE FEDERAL PURPOSE OF THE ORDERLY MARKETING OF
AVOCADOS IN INTERSTATE COMMERCE. 

WE WOULD NOT, AS APPELLEES WOULD HAVE IT AND AS THE MAJORITY APPEARS
TO SUGGEST, CONSTRUE SEC. 10 AS LIMITING THE POWER OF THE SECRETARY
UNDER SEC. 608C TO THE ISSUANCE OF MARKETING ORDERS WHICH ARE
COMPLEMENTARY TO AND NOT INCONSISTENT WITH STATE REGULATION.  (FN15)
THE SUGGESTION THAT THE SECRETARY COOPERATE WITH THE STATES SHOULD BE
VIEWED AS WAS A VERY SIMILAR AUTHORIZATION TO THE SAME GOVERNMENT
OFFICIAL IN RICE V. CHICAGO BOARD OF TRADE, 331 U.S. 247.  THERE THE
STATUTE PROVIDED THAT THE SECRETARY OF AGRICULTURE "MAY COOPERATE WITH
ANY DEPARTMENT OR AGENCY OF THE GOVERNMENT, ANY STATE  ...  OR
POLITICAL SUBDIVISION THEREOF."  A UNANIMOUS COURT REMARKED THAT THIS
PROVISION SUPPORTED "THE INFERENCE THAT CONGRESS DID NOT DESIGN A
REGULATORY SYSTEM WHICH EXCLUDED STATE REGULATION NOT IN CONFLICT WITH
THE FEDERAL REQUIREMENTS," BUT IT WAS CAREFUL TO NOTE THAT "IT WOULD BE
QUITE A DIFFERENT MATTER IF THE ILLINOIS COMMISSION ADOPTED RULES FOR
THE BOARD WHICH EITHER VIOLATED THE STANDARDS OF THE ACT OR COLLIDED
WITH RULES OF THE SECRETARY." 

THE CONFLICT BETWEEN FEDERAL AND STATE LAW IS UNMISTAKABLE HERE.  THE
SECRETARY ASSERTS CERTAIN FLORIDA AVOCADOS ARE MATURE.  THE STATE LAW
REJECTS THEM AS IMMATURE.  AND THE CONFLICT IS OVER A MATTER OF CENTRAL
IMPORTANCE TO THE FEDERAL SCHEME.  THE ELABORATE REGULATORY SCHEME OF
THE MARKETING ORDER IS FOCUSED UPON THE PROBLEM OF MOVING MATURE
AVOCADOS INTO INTERSTATE COMMERCE.  THE MATURITY REGULATIONS ARE NOT
PERIPHERAL ASPECTS OF THE FEDERAL SCHEME.  COMPARE INTERNATIONAL ASSN.
OF MACHINISTS V. GONZALES, 356 U.S. 617.  ON THE CONTRARY, IN THE
DEPARTMENT OF AGRICULTURE ORDER WHICH PRECEDED ISSUANCE OF THE AVOCADO
REGULATIONS, IT WAS FOUND THAT THE MARKETING OF IMMATURE AVOCADOS WAS
ONE OF THE PRINCIPAL PROBLEMS, IF NOT THE PRINCIPAL PROBLEM, FACED BY
THE INDUSTRY AND THAT THESE REGULATIONS SHOULD BE ADOPTED TO SOLVE THIS
PROBLEM WHICH WAS DEMORALIZING THE INDUSTRY.  19 FED. REG., AT 2419,
2424.  (FN16)  THE CONFLICT INVOLVED IN THIS CASE THEREFORE CANNOT
PROPERLY BE DEEMED "TOO CONTINGENT, TOO REMOTELY RELATED TO" (356 U.S.,
AT 621) THE POLICY AND PURPOSE OF THE ACT TO CALL FOR REQUIRING THE
INCONSISTENT STATE SCHEME TO DEFER OR BE ACCOMMODATED TO THE FEDERAL
ONE. 

CALIFORNIA NEVERTHELESS ARGUES THAT IT SHOULD BE PERMITTED TO APPLY
ITS OIL TEST CUMULATIVELY WITH THE FEDERAL TEST TO INSURE THAT ONLY
MATURE AVOCADOS ARE OFFERED IN ITS MARKETS.  THE COURT ACCEPTS THIS
CONTENTION AS "A WELL-SETTLED PROPOSITION," IN THE NAME OF CLOVERLEAF
BUTTER CO. V. PATTERSON, 315 U.S. 148, AND THE UNCITED "ALL THE
AUTHORITIES," WHICH APPEAR TO BE NONEXISTENT, ANTE, P. 144 AND N. 13. 
THERE ARE AT LEAST THREE ANSWERS TO THIS CONTENTION.  (FN17)  FIRST, IT
IGNORES THE LIMITATIONS OF THE 8% OIL TEST AS APPLIED TO THE INHERENTLY
LESS OILY FLORIDA AVOCADOS, WHICH THE DISTRICT COURT INDICATED WERE
"ACCEPTABLE PRIOR TO THE TIME THAT THEY REACH THAT CONTENT."  AS
APPLIED TO CALIFORNIA AVOCADOS, THE 8% OIL FIGURE LEAVES AN AMPLE
TOLERANCE FOR INDIVIDUAL VARIATION, BUT IT IS OTHERWISE AS APPLIED TO
THE LESS OILY FLORIDA VARIETIES.  SECOND, IF THE ARGUMENT IS THAT THE
FEDERAL TEST IS UNSATISFACTORY AND THAT THE CALIFORNIA TEST IS A BETTER
ONE - AS IT WOULD APPEAR TO BE IN VIEW OF THE RELIANCE ON "A HIGHER
STANDARD," WHICH IN THIS CASE MEANS ONLY A MORE ACCURATE STANDARD
BECAUSE NO ONE ASSERTS THAT SOME AVOCADOS CAN BE LESS HIGHLY MATURE
THAN OTHERS AND THEREFORE RIPEN LESS FULLY - IT MUST BE REMEMBERED THAT
THE SECRETARY, TO WHOM CONGRESS DELEGATED ITS POWER, MADE A LEGISLATIVE
FINDING IN HIS ORDER ADOPTING THE PICKING-DATE-SIZE METHOD OF
DETERMINING MATURITY AND SPECIFICALLY REJECTING PHYSICAL CHEMICAL TESTS
OF THE CALIFORNIA TYPE.  THAT FINDING CANNOT BE IMPEACHED COLLATERALLY
IN THIS PROCEEDING.  ADOPTING ONE MATURITY TEST RATHER THAN ANOTHER "IS
A LEGISLATIVE NOT A JUDICIAL CHOICE" AND ITS VALIDITY "IS NOT TO BE
DETERMINED BY WEIGHING IN THE JUDICIAL SCALES THE MERITS OF THE
LEGISLATIVE CHOICE AND REJECTING IT IF THE WEIGHT OF EVIDENCE PRESENTED
IN COURT APPEARS TO FAVOR A DIFFERENT STANDARD."  SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177.  191.  SEE SECURITY
ADMINISTRATOR V. QUAKER OATS CO., 318 U.S. 218; UNITED STATES V.
CAROLENE PRODUCTS CO., 304 U.S. 144.  NEITHER CALIFORNIA NOR THIS COURT
HAS ANY PLACE SECOND-GUESSING THE WISDOM OF CONGRESS OR ITS DELEGATE. 
THIRD, CONGRESS DID NOT LIMIT ITS INTEREST TO THE PICKING OF AVOCADOS,
NOR EVEN TO THEIR TRANSPORTATION IN COMMERCE TO MARKETS IN OTHER
STATES.  IT EXPRESSLY DECLARED ITS INTENTION TO REGULATE THE MATURITY
AND QUALITY OR PRODUCE "WHICH MAY BE MARKETED IN  ...  ANY AND ALL
INTERSTATE MARKETS."  CONGRESS SOUGHT TO REGULATE MARKETING FROM THE
BEGINNING THROUGH THE END OF THE STREAM OF COMMERCE, IN ORDER TO
ELIMINATE IMPEDIMENTS AT ANY PART OF THAT STREAM.  THE COURT IGNORES
THE PLAIN WORDS OF THE STATUTE IN CONCLUDING THAT THE CALIFORNIA LAW
DOES NOT FRUSTRATE THE FEDERAL SCHEME. 

EVEN IF THE CALIFORNIA OIL TEST WERE AN ACCEPTABLE TEST FOR THE
MATURITY OF THE FLORIDA AVOCADOS, WHICH THE SECRETARY FOUND IT WAS NOT,
THE CUMULATIVE APPLICATION OF THAT TEST SOLELY FOR THE PURPOSE OF A
SECOND CHECK ON THE MATURITY OF FLORIDA AVOCADOS, SOLELY TO CATCH
POSSIBLE ERRORS IN THE FEDERAL SCHEME, WOULD PROVE ONLY THAT THE
PARTICULAR AVOCADOS ACTUALLY TESTED (AND THEREBY DESTROYED) WERE
IMMATURE, AND IT WOULD NOT JUSTIFY THE REJECTION OF WHOLE LOTS FROM
WHICH THESE SAMPLES CAME.  IF FLORIDA AVOCADOS ARE TO BE SUBJECTED TO
THIS TEST, THE ALTERNATIVES ARE TO LEAVE THE CALIFORNIA MARKET TO THE
CALIFORNIA PRODUCERS (AT LEAST, TO PRODUCERS OF MEXICAN VARIETIES) OR
ELSE, IN ORDER TO AVOID THE HAZARD OF REJECTION, TO LEAVE THE FLORIDA
AVOCADOS ON THE TREES PAST THE NORMAL (AND FEDERALLY PRESCRIBED)
PICKING DATE, THEREBY SHORTENING THE POST-PICKING MARKETING PERIOD AND
THUS FRUSTRATING THE FEDERAL SCHEME AIMED AT MOVING AVOCADOS MATURE
UNDER FEDERAL STANDARDS INTO ALL INTERSTATE MARKETS.  (FN18)  A
REASONABLE BALANCING OF THE STATE AND FEDERAL INTERESTS AT STAKE HERE
REQUIRES THAT THE FORMER GIVE WAY AS TOO INSUBSTANTIAL TO WARRANT
FRUSTRATION OF THE CONGRESSIONAL PURPOSE. 

WE HAVE, THEN, A CASE WHERE THE FEDERAL REGULATORY SCHEME IS
COMPREHENSIVE, PERVASIVE, AND WITHOUT A HIATUS WHICH THE STATE
REGULATIONS COULD FILL.  BOTH THE SUBJECT MATTER AND THE STATUTE CALL
FOR UNIFORMITY.  THE CONFLICT IS SUBSTANTIAL - AT LEAST SIX OUT OF
EVERY 100 FEDERALLY CERTIFIED AVOCADOS ARE BARRED FOR FAILURE TO PASS
THE CALIFORNIA TEST (FN19) - AND IT IS LOCATED IN A CENTRAL PORTION OF
THE FEDERAL SCHEME.  THE EFFECT OF THE CONFLICT IS TO DISRUPT AND
BURDEN THE FLOW OF COMMERCE AND THE SALE OF FLORIDA AVODACOS IN DISTANT
MARKETS, CONTRARY TO THE CONGRESSIONAL POLICY UNDERLYING THE ACT.  THE
STATE MAY HAVE A LEGITIMATE ECONOMIC INTEREST IN THE SUBJECT MATTER,
BUT IT IS ADEQUATELY SERVED BY THE FEDERAL REGULATIONS AND THIS
INTEREST WOULD BE BUT SLIGHTLY IMPAIRED, IF AT ALL, BY THE SUPERSESSION
OF SEC. 792.  (FN20) 

IN SUCH CIRCUMSTANCES, THE STATE LAW SHOULD GIVE WAY; IT "BECOMES
INOPERATIVE AND THE FEDERAL LEGISLATION EXCLUSIVE IN ITS APPLICATION." 
CLOVERLEAF CO. V. PATTERSON, 315 U.S. 148, 156.  ACCORD, MCDERMOTT V.
WISCONSIN, 228 U.S. 115; HILL V. FLORIDA, 325 U.S. 538.  THE CONCLUSION
IS INESCAPABLE THAT THE CALIFORNIA LAW IS A OBSTACLE TO THE
ACCOMPLISHMENT AND EXECUTION OF THE CONGRESSIONAL PURPOSES AND
OBJECTIVES, AND THAT THE CALIFORNIA LAW AND THE AGRICULTURAL ADJUSTMENT
ACT, AS SUPPLEMENTED BY THE REGULATIONS PROMULGATED THEREUNDER, CANNOT
BE RECONCILED AND CANNOT CONSISTENTLY STAND TOGETHER.  (FN21)  THE
COURT SHOULD NOT ALLOW AVOCADOS CERTIFIED AS MATURE UNDER THE FEDERAL
MARKETING ORDER TO BE EMBARGOED BY ANY STATE BECAUSE IT THINKS THAT
THEY ARE IMMATURE.  WE WOULD THEREFORE REVERSE WITH INSTRUCTIONS TO
GRANT THE INJUNCTION REQUESTED. 

FN1  THERE IS NO QUESTION IN THIS CASE AS TO WHETHER THE CALIFORNIA
OIL CONTENT LAW KEEPS OUT OF CALIFORNIA FLORIDA AVOCADOS WHICH PASS THE
FEDERAL TEST.  IN THEIR MOTION TO DISMISS AND THE ACCOMPANYING SWORN
AFFIDAVIT BELOW, THE APPELLEE STATE OFFICERS GAVE 6.4% AS THE AVERAGE
REJECTION FIGURE PER YEAR, OVER A FOUR-YEAR PERIOD, BASING THE
PERCENTAGE ON THE OFFICIAL RECORDS OF THE CALIFORNIA DEPARTMENT OF
AGRICULTURE.  REJECTIONS REACHED A HIGH OF 16.4% IN THE 1955-1956
SEASON.  IT IS HARD TO UNDERSTAND THE COURT'S REFUSAL TO CONSIDER THE
FIGURES BECAUSE OF THE WAY THEY ENTERED THE RECORD.  SEE ANTE, P. 136
AND N. 3, AND P. 157.  WE BELIEVE APPELLEES' SWORN STATEMENTS AS TO THE
STATE'S OFFICIAL RECORDS ARE PROPERLY BEFORE THE COURT NOW, AND THAT IN
ANY EVENT THEY WILL COME INTO THE RECORD SHORTLY, SINCE IT IS CLEAR
THAT ON REMAND THE SAME DATA WILL COME IN VIA DEPOSITION.   IF THE
MAJORITY ACTUALLY HAS ANY DOUBT ON THIS SCORE, AND BELIEVES THAT
ACCEPTING AS A FACT THAT CALIFORNIA REJECTS SIX OUT OF EVERY 100
FLORIDA AVOCADOS AS IMMATURE WOULD HAVE AN EFFECT ON THE RESULT, IT
SHOULD REMAND FOR FURTHER FINDINGS ON PREEMPTION AS IT DOES ON BURDEN
ON COMMERCE.  THE SAME PAPERS BELOW, AND THE OPINION OF THE DISTRICT
COURT, 197 F. SUPP., AT 738, REVEAL THAT ABOUT 5% OF THE APPELLANTS'
SHIPMENTS TO CALIFORNIA HAVE BEEN REJECTED FOR FAILURE TO ATTAIN THE 8%
OIL CONTENT REQUIRED UNDER CALIFORNIA LAW.  THE RECORD IS SILENT ON THE
IN TERROREM EFFECT OF THE CALIFORNIA LAW ON INTERSTATE COMMERCE IN
FLORIDA AVOCADOS, AND WE THEREFORE DO NOT CONSIDER IT HERE. 

FN2  AVOCADOS NOT MEETING THIS STANDARD MAY NOT BE SOLD IN
CALIFORNIA, ARE "DECLARED TO BE A PUBLIC NUISANCE," AND THEY MAY BE
SEIZED, CONDEMNED, AND ABATED.  VIOLATORS MAY BE PUNISHED CRIMINALLY
AND BY CIVIL PENALTY ACTION.  SEE ANTE, P. 134, AT N. 1. 

FN3  IT IS NOT CONTENDED THAT THE PURPOSE OF THE 8% MINIMUM OIL
CONTENT REQUIREMENT IS FOR THE PURPOSE OF INSURING A HIGH CALORIC OR
OTHER NUTRITIONAL CONTENT IN THE FRUIT.  NO HEALTH ISSUE HAS BEEN
RAISED IN THIS CASE.  CF. 197 F. SUPP., AT 785-786.  NOR HAS IT BEEN
CONTENDED AT ANY STAGE OF THE PROCEEDINGS THAT THE STATUTORY PURPOSE IS
DIRECTLY TO PROTECT LOCAL CONSUMERS FROM FRAUDULENT AND DECEPTIVE
PRACTICES; MOREOVER, THERE IS NO EVIDENCE TO SUPPORT THAT VIEW. 

FN4  "MEXICAN VARIETIES OF AVOCADOS CONTAIN (GENERALLY SPEAKING) THE
HIGHEST OIL CONTENT OF ANY VARIETIES, WHEN MATURE.  HYBRID VARIETIES
ATTAIN THE NEXT HIGHEST OIL PERCENTAGES, AND WEST INDIAN THE LOWEST. 
HYBRID VARIETIES GENERALLY ATTAIN OIL CONTENT IN EXCESS OF 8% IF LEFT
ON THE TREES LONG ENOUGH, BUT THEY DO NOT NECESSARILY ATTAIN SUCH AN
OIL CONTENT BY THE TIME THAT THEY MAY BE MARKETED UNDER THE FLORIDA
AVOCADO ORDER.  THEY ARE MATURE ENOUGH TO BE ACCEPTABLE PRIOR TO THE
TIME THAT THEY REACH THAT CONTENT, ACCORDING TO PLAINTIFFS'
WITNESSES."  197 F. SUPP., AT 783. 

WHILE IT WOULD APPEAR TO BE THEORETICALLY FEASIBLE TO DETERMINE THE
PROPER OIL CONTENT TO GAUGE MATURITY FOR EACH DIFFERENT VARIETY OF
AVOCADO, THIS IS HIGHLY IMPRACTICABLE, AS THE DISTRICT COURT POINTED
OUT; OVER 40 VARIETIES OF AVOCADO ARE MARKETED IN FLORIDA.  ID., AT
785. 

FN5  THE FINDINGS OF THE UNITED STATES DEPARTMENT OF AGRICULTURE,
CONTAINED IN ITS ORDER DETERMINING WHAT TERMS SHOULD BE CONTAINED IN
THE AVOCADO REGULATIONS, WERE THAT THE MARKETING OF IMMATURE FRUITS
INCREASES CONSUMER RESISTANCE AND MATERIALLY IMPAIRS THE MARKETING OF
THE ENTIRE CROP, THAT THERE WAS NO SATISFACTORY PHYSICAL OR CHEMICAL
TEST FOR DETERMINING MATURITY, AND THAT MATURITY CAN SATISFACTORILY BE
DETERMINED BY THE PICKING-DATE-SIZE METHOD.  HANDLING OF AVOCADOS GROWN
IN SOUTH FLORIDA, 19 FED. REG.  2418, 2424-2425 (DEPT. OF AGR.  DKT. 
NO. AO-254). 

CALIFORNIA HAS A STATUTE SIMILAR TO THE FEDERAL LAW, THE CALIFORNIA
MARKETING ACT, CAL. AGR.  CODE SECS. 1300.10-1300.29, WHICH ALLOWS THE
DIRECTOR OF AGRICULTURE TO PROMULGATE MARKETING ORDERS WHEN A MAJORITY
OF THE AFFECTED HANDLERS OR PRODUCERS ASSENT.  ID., SEC. 1300-169A). 
THE PURPOSE OF THE ACT IS TO RESTORE AND MAINTAIN ADEQUATE PURCHASING
POWER FOR CALIFORNIA AGRICULTURAL PRODUCERS, ESTABLISH ORDERLY
MARKETING, PROVIDE UNIFORM GRADING, DEVELOP NEW AND LARGER MARKETS AND
MAINTAIN PRESENT MARKETS FOR PRODUCE GROWN WITHIN THE STATE, ELIMINATE
TRADE BARRIERS WHICH OBSTRUCT THE FREE FLOW OF SUCH PRODUCE TO THE
MARKET, AND PERMIT THE ISSUANCE OF MARKETING ORDERS WHICH ASSURE
STABILIZED AND ORDERLY DISTRIBUTION OF PRODUCE.  ID., SECS. 1300.10,
1330.29; BROCK V. SUPERIOR COURT, 109 CAL. APP. 2D 594, 598, 241 P.2D
283, 286.  THE DIRECTOR PROMULGATED AN AVOCADO MARKETING ORDER IN 1960
AND IT HAS BEEN UPHELD AS VALID IN THE STATE COURTS.  CHILD V. WARNE,
194 CAL. APP. 2D 623, 15 CAL. RPTR.  437.    FN6  THIS IS THE CUSTOMARY
METHOD OF ADMINISTERING MARKETING ORDERS UNDER THE ACT.  SEE, E.G., 7
CFR SECS. 905.51, 906.39, 907.51, 907.63, 908.51, 908.63, 909.51,
909.52, 910.51, 910.65, 911.51.  IN THE CASE OF THE AVOCADO ORDER,
SUPRA, NOTE 5, THE DEPARTMENT SPECIFICALLY DETERMINED THAT THIS WOULD
BE THE APPROPRIATE METHOD TO ADMINISTER THE REGULATORY PROGRAM.  19
FED. REG., AT 2422-2423. 

FN7  SECTION .53 PROVIDES THAT SUCH EXEMPTION SHALL BE GRANTED UNDER
PROCEDURAL RULES APPROVED BY THE SECRETARY.  SECTION .52(B) WOULD
APPEAR TO PROVIDE FOR REVIEW OF PARTICULAR DETERMINATIONS BEFORE THE
SECRETARY, TAKEN BY A PARTY AGGRIEVED THEREBY OR TAKEN BY THE SECRETARY
SUA SPONTE.  EXEMPTION UNDER SEC. .53 IS ALLOWED ONLY FROM THE PICKING
DATE-SIZE STANDARDS PRESCRIBED UNDER SEC. .51(A)(1), AND NOT FROM OTHER
REGULATIONS SUCH AS QUALITY (SEC. .51(A)(2)), CONTAINER AND PACKAGING
(SEC. .51(A)(3)), OR GRADING AND LABELING (SEC. .51(A)(4)).  AND
INSPECTION BY THE FEDERAL-STATE INSPECTION SERVICE FOR THESE STANDARDS
AND THOSE SET OUT AS THE TERMS AND CONDITIONS OF ADVANCE RELEASE UNDER
SEC. .53 IS, OF COURSE, REQUIRED. 

FN8  VIOLATION OF THE ORDER IS PUNISHABLE BY A FINE OF FROM $50 TO
$500.  7 U.S.C.  SEC. 608C(14).   VIOLATIONS OF REGULATIONS MAY ALSO BE
MADE PUNISHABLE BY THE SECRETARY BY A PENALTY NOT TO EXCEED $100.  7
U.S.C. SEC. 610(C). 

FN9  THESE REGULATIONS AND OTHERS, 7 CFR SECS. 51.3055-51.3069,
GOVERN IN EXHAUSTIVE DETAIL THE SIZE AND SHAPE OF AVOCADOS, THEIR
COLOR, SKIN CONDITION, STEM LENGTH, AND THE MANNER IN WHICH THEY MAY BE
SHIPPED. 

FN10  27 FED. REG. 5135-5136, 6705, 8265, 9175, 10091; 26 FED. REG.
3692, 4928, 5418-5419, 6429, 7694, 8663; 25 FED. REG. 5476, 7712, 8903,
9170, 9888; 24 FED. REG. 1152, 3105, 4050, 4828, 5824-5825, 6904, 7354,
8444, 9123, 9262; 23 FED. REG. 1025-1026, 4351-4352, 5477, 6318, 7344,
7943, 8047, 9056, 9689; 22 FED. REG. 3652, 4251-4252, 5680, 6746, 7173
7174, 7357-7358, 8118; 21 FED. REG. 3307-3308, 3488, 6329-6330; 20 FED.
REG. 3427, 4178-4179, 6699-6700, 7876, 8328-8329, 8688; 19 FED. REG.
4404-4405, 4601, 4862, 5469, 5966, 5967, 6368, 6604, 6625, 7477. 
SIMILAR ORDERS HAVE BEEN ISSUED FROM TIME TO TIME CONCERNING MATURITY
OF IMPORTED AVOCADOS.  SEE, E.G., 25 FED.  REG. 5445; 24 FED. REG.
4134, 4829, 5825, 5996; 23 FED. REG. 4352, 6027; 22 FED. REG.  3957; 21
FED. REG. 4257. 

FN11  "THERE IS NOT - AND FROM THE VERY NATURE OF THE PROBLEM THERE
CANNOT BE - ANY RIGID FORMULA OR RULE WHICH CAN BE USED AS A UNIVERSAL
PATTERN TO DETERMINE THE MEANING AND PURPOSE OF EVERY ACT OF CONGRESS. 
THIS COURT, IN CONSIDERING THE VALIDITY OF STATE LAWS IN THE LIGHT OF
...  FEDERAL LAWS TOUCHING THE SAME SUBJECT, HAS MADE USE OF THE
FOLLOWING EXPRESSION:  CONFLICTING; CONTRARY TO; OCCUPYING THE FIELD;
REPUGNANCE; DIFFERENCE; IRRECONCILABILITY; INCONSISTENCY; VIOLATION;
CURTAILMENT; AND INTERFERENCE.  BUT NONE OF THESE EXPRESSIONS PROVIDES
AN INFALLIBLE CONSTITUTIONAL TEST OF AN EXCLUSIVE CONSTITUTIONAL
YARDSTICK.  IN THE FINAL ANALYSIS, THERE CAN BE NO ONE CRYSTAL CLEAR
DISTINCTLY MARKED FORMULA.  OUR PRIMARY FUNCTION IS TO DETERMINE
WHETHER, UNDER THE CIRCUMSTANCES OF THIS PARTICULAR CASE,
PENNSYLVANIA'S LAW STANDS AS AN OBSTACLE TO THE ACCOMPLISHMENT AND
EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF CONGRESS."  HINES V.
DAVIDOWITZ, 312 U.S. 52, 67.  COMPARE ANTE, P. 141. 

FN12  WE DO NOT IMPLY THAT THESE REGULATIONS GOVERNING THE FITNESS OF
AVOCADOS IN TERMS OF MATURITY WOULD PRECLUDE APPLICATION OF LOCAL
REGULATIONS CONCERNING, FOR EXAMPLE, BACTERIA CONTENT OR DDT CONTENT. 
CF. HURON CO. V. DETROIT, 362 U.S. 440.  NEITHER HEALTH REGULATION NOR
SAFETY CONSIDERATIONS, CF. LYONS V. THRIFTY DRUG STORES CO., 105 CAL.
APP. 2D 844, 234 P.2D 62, ARE INVOLVED IN THIS CASE.  AND THERE IS NO
FINDING THAT THERE IS ANYTHING FRAUDULENT, DECEPTIVE, OR UNMARKETABLE
ABOUT A FLORIDA AVOCADO WHICH IS MATURE ENOUGH TO BE INTRODUCED INTO
INTERSTATE COMMERCE UNDER A FEDERAL CERTIFICATE EVIDENCING ITS
QUALITY.  COMPARE PLUMLEY V. MASSACHUSETTS, 155 U.S. 461, 472, QUOTED
ANTE, P. 144. 

FN13  IT WAS SUGGESTED THAT THERE IS A GAP IN THE FEDERAL SCHEME
THROUGH WHICH IMMATURE AVOCADOS MAY ENTER COMMERCE BEARING AN EXEMPTION
CERTIFICATE ISSUED "SEEMINGLY  ...  IN THE UNFETTERED DISCRETION OF THE
GROWERS' OWN COMMITTEE."  THIS CONTENTION OMITS THE REQUIREMENT OF SEC.
.53 THAT EXEMPTION FROM THE NORMAL PICKING-DATE-SIZE PROVISIONS BE
ALLOWED ONLY TO AVOCADOS INSPECTED AND PROVED MATURE BECAUSE THEY
SATISFIED SPECIAL MATURITY TESTS PRESCRIBED UNDER PROCEDURES APPROVED
BY THE SECRETARY, AND THE FACT THAT SUCH AVOCADOS CARRY A FEDERAL
CERTIFICATE AS TO MATURITY AND QUALITY.  IT ALSO OMITS THE SECRETARY'S
GENERAL REVIEW POWER OVER REGULATORY DETERMINATIONS PROVIDED BY SEC.
.52(B).  NO CONTENTION HAS BEEN MADE THAT ACTUAL ABUSES HAVE OCCURRED
UNDER THE EXEMPTION CERTIFICATE PROVISIONS NOR HAS ANY BASIS UPON WHICH
THEY MAY BE ANTICIPATED BEEN SUGGESTED. 

FN14  IT ALSO CAME OUT, BY REPRESENTATION OF THE SOLICITOR GENERAL AS
AMICUS CURIAE BEFORE THIS COURT, THAT THE DEPARTMENT OF AGRICULTURE HAD
COLLABORATED IN DRAFTING THE STATE RAISIN PROGRAM, AND HAD TAKEN OTHER
ACTIONS WHICH "MUST BE TAKEN AS AN EXPRESSION OF OPINION BY THE
DEPARTMENT OF AGRICULTURE THAT THE STATE PROGRAM  ...  IS CONSISTENT
WITH THE POLICIES OF THE AGRICULTURE ADJUSTMENT AND AGRICULTURE
MARKETING AGREEMENT ACTS."  ID., AT 358.  HENCE, IN HOLDING "WE FIND NO
CONFLICT BETWEEN THE TWO ACTS (STATE AND FEDERAL) AND NO SUCH
OCCUPATION OF THE LEGISLATIVE FIELD BY THE MERE ADOPTION OF THE  ...
FEDERAL ACT, WITHOUT THE ISSUANCE OF ANY ORDER BY THE SECRETARY PUTTING
IT INTO EFFECT, AS WOULD PRECLUDE THE EFFECTIVE OPERATION OF THE STATE
ACT," THE COURT EXPRESSLY DECLARED, "WE HAVE NO OCCASION TO DECIDE
WHETHER THE SAME CONCLUSION WOULD FOLLOW IF THE STATE PROGRAM HAD NOT
BEEN ADOPTED WITH THE COLLABORATION OF OFFICIALS OF THE DEPARTMENT OF
AGRICULTURE  ...  ."  ID., AT 358. 

FN15  WE NOTE THAT SEC. 1300.24(B) OF THE CALIFORNIA AGRICULTURAL
CODE CONTAINS A PROVISION SIMILAR TO FEDERAL SEC. 10(I): 

"THE DIRECTOR IS HEREBY AUTHORIZED TO CONFER WITH AND COOPERATE WITH
THE LEGALLY CONSTITUTED AUTHORITIES OF OTHER STATES AND OF THE UNITED
STATES, FOR THE PURPOSE OF OBTAINING UNIFORMITY IN THE ADMINISTRATION
OF FEDERAL AND STATE MARKETING REGULATIONS, LICENSES OR ORDERS, AND
SAID DIRECTOR IS AUTHORIZED TO CONDUCT JOINT HEARINGS, ISSUE JOINT OR
CONCURRENT MARKETING ORDERS, FOR THE PURPOSES AND WITHIN THE STANDARDS
SET FORTH IN THIS ACT, AND MAY EXERCISE ANY ADMINISTRATIVE AUTHORITY
PRESCRIBED BY THIS ACT TO EFFECT SUCH UNIFORMITY OF ADMINISTRATION AND
REGULATION." 

UNDER THE REASONING SUGGESTED TO US THE CALIFORNIA LAW SHOULD BE
CONSTRUED NOT TO APPLY TO FLORIDA AVOCADOS MARKETED UNDER A FEDERAL
ORDER.  AND SEE OIL WORKERS UNION V. MISSOURI, 361 U.S. 363, 370; ALLEN
BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740, 746; PEARSON V. PROBATE
COURT, 309 U.S. 270, 277; CAREY V. SOUTH DAKOTA, 250 U.S. 118, 122. 

FN16  "PROBABLY THE MOST IMPORTANT SINGLE FACTOR OF QUALITY IS THAT
OF MATURITY."  19 FED. REG., AT 2424. 

FN17  TO THE EXTENT THAT THIS CONTENTION IS TO BE UNDERSTOOD TO BE
LIMITED TO "ALL THE AUTHORITIES" SUPPORTING "A HIGHER STANDARD FOR
CONSUMERS," WE HAVE ALREADY INDICATED, PP. 168-169, SUPRA, THAT THE
CALIFORNIA LAW IS NOT AIMED AT CONSUMER PROTECTION BUT AT AVOCADO
GROWER PROTECTION. 

FN18  THE AVOCADO MAY REMAIN HARD AND IN PERFECT CONDITION ON THE
TREE FOR SOME TIME AFTER REACHING MATURITY, FOR THE FRUIT DOES NOT
SOFTEN UNTIL AFTER IT IS PICKED.  BUT THE HARVESTING AND SHIPPING OF
FRUIT WHICH HAS REACHED THE FULLEST POSSIBLE DEGREE OF MATURITY ON THE
TREE IS NOT RECOMMENDED.  THE SEED MAY SPROUT WHILE THE FRUIT IS ON THE
TREE OR THE FRUIT MAY RIPEN SO RAPIDLY AFTER HARVESTING THAT IT CANNOT
BE SHIPPED SATISFACTORILY.  RUEHLE, THE FLORIDA AVOCADO INDUSTRY, 70
(UNIV.  OF FLA. AGR.  EXPT.  STA. BULL.  NO. 602, 1958); WOLFE, TOY AND
STAHL AVOCADO PRODUCTION IN FLORIDA, 82 (RUEHLE REV. ED., FLA. AGR. 
EXT.  SERV. BULL.  NO. 141, 1949). 

FN19  THERE IS NO INDICATION IN THE RECORD AS TO HOW MANY FLORIDA
AVOCADOS ARE KEPT OUT OF THE CALIFORNIA MARKET BY THE PRUDENCE OF
GROWERS AND HANDLERS WHO VOLUNTARILY AVOID THE RISKS OF THE CALIFORNIA
OIL TEST.  NOR ARE WE ADVISED AS TO WHETHER OTHER STATES HAVE ADOPTED
AVOCADO LEGISLATION, SO THAT THE CUMULATIVE BURDEN ON COMMERCE IS
FURTHER INCREASED.  IN ANY EVENT, 6% IS A NOT INSUBSTANTIAL FIGURE IN
TERMS OF RESTRAINTS UPON COMMERCE. 

FN20  IT IS SUGGESTED THAT THE REGULATIONS INVOLVED HERE ARE "SIMPLY
SCHEMES FOR REGULATING COMPETITION AMONG GROWERS  ...  INITIATED AND
ADMINISTERED BY THE GROWERS AND SHIPPERS THEMSELVES."  FROM THIS
PROPOSITION IT IS IN SOME WAY REASONED THAT "THE SELF-HELP STANDARDS OF
THIS MARKETING PROGRAM" SHOULD NOT BE DEEMED TO PRECLUDE APPLICATION OF
STATE LAW WHICH CONFLICTS WITH AND INTERFERES WITH THE OPERATION OF THE
COMPREHENSIVE FEDERAL MARKETING PROGRAM.  THE "SIMPLY" PART OF THE
PROPOSITION OVERLOOKS, HOWEVER, THE FACT THAT THESE ARE THE SECRETARY'S
REGULATIONS, PROMULGATED UNDER CONGRESSIONAL AUTHORITY.  IT ALSO
OVERLOOKS THE SECRETARY'S EXTENSIVE SUPERVISORY POWERS AND HIS
STATUTORY DUTY UNDER 7 U.S.C. SEC. 602(3) TO INSURE THAT REGULATIONS BE
CARRIED ON "IN THE PUBLIC INTEREST."  AND NO CASE HAS BEEN CITED TO US
WHICH INDICATES THAT THE DELEGATION TO THE REGULATEES OF THE POWER TO
PROPOSE REGULATIONS IN THE FIRST INSTANCE VIOLATES ANY PROVISION OF
GENERAL LAW.  SEE PARKER V. BROWN, 317 U.S. 341, 352; SUNSHINE
ANTHRACITE CO. V. ADKINS, 310 U.S. 381; UNITED STATES V. ROCK ROYAL CO
OP., 307 U.S. 533, 577-578; CURRIN V. WALLACE, 306 U.S. 1, 16; JOHNSON
CO. V. SECURITIES & EXCHANGE COMM'N, 198 F.2D 690, 695 (C.A.2D CIR.). 

FN21  AND SEE CASTLE V. HAYES LINES, INC., 348 U.S. 61; FIRST IOWA
COOP V. FEDERAL POWER COMM'N, 328 U.S. 152; GIBBONS V. OGDEN, 9 WHEAT. 
1; DUMONT LABS.  V. CARROLL, 184 F.2D 153 (C.A. 3D CIR.). THE
SUGGESTION, ANTE, P. 141, THAT THE DOCTRINE OF GIBBONS V. OGDEN IS
LIMITED TO CARRIERS IS UNWARRANTED IN VIEW OF SUCH CASES AS FIRST
IOWA. 
..END :



















NAMET V. UNITED STATES 373 U.S. 179 


NO. 134.  ARGUED MARCH 18, 1963.  - DECIDED MAY 13, 1963.  - 301 F.2D
314, AFFIRMED. 


DURING A TRIAL IN A FEDERAL DISTRICT COURT IN WHICH PETITIONER WAS
CONVICTED BY A JURY OF VIOLATING THE FEDERAL WAGERING TAX LAW, THE
PROSECUTOR ASKED TWO WITNESSES QUESTIONS CONCERNING THEIR RELATIONSHIP
WITH PETITIONER.  REFUSAL OF THESE WITNESSES TO ANSWER SOME OF THE
QUESTIONS, BASED ON THEIR PRIVILEGE AGAINST SELF-INCRIMINATION, WAS
SUSTAINED.  COUNSEL FOR THE WITNESSES HAD PREVIOUSLY STATED THAT THE
WITNESSES WOULD CLAIM THEIR PRIVILEGE AGAINST SELF-INCRIMINATION IF
ASKED ABOUT WAGERING VIOLATIONS.  THE JUDGE INSTRUCTED THE JURY THAT NO
INFERENCE SHOULD BE DRAWN AGAINST PETITIONER FROM THESE REFUSALS TO
TESTIFY, "UNLESS IT WOULD BE A LOGICAL INFERENCE THAT WOULD APPEAL TO
YOU AS HAVING A DIRECT BEARING UPON THE DEFENDANT'S GUILT," AND
PETITIONER'S COUNSEL MADE NO OBJECTION TO THIS INSTRUCTION.  HELD: 

1.  IN THE LIGHT OF THE ENTIRE RECORD IN THIS CASE, NO REVERSIBLE
ERROR WAS COMMITTED WHEN THE PROSECUTOR ASKED THE WITNESSES QUESTIONS
AS TO WHICH THEIR PLEA OF PRIVILEGE AGAINST SELF-INCRIMINATION WAS
SUSTAINED.  PP. 185-190. 

2.  EVEN IF THE INSTRUCTION ON THIS SUBJECT WAS ERRONEOUS, IT WAS NOT
A PLAIN ERROR OR DEFECT "AFFECTING SUBSTANTIAL RIGHTS," WITHIN THE
MEANING OF FEDERAL RULE OF CRIMINAL PROCEDURE 52(B), AND IT DID NOT
CONSTITUTE REVERSIBLE ERROR.  PP. 190-191. 

NAMET V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED BY A JURY ON TWO COUNTS OF VIOLATING THE
FEDERAL WAGERING TAX LAW, SECS. 4411 AND 4412 OF THE INTERNAL REVENUE
CODE OF 1954, 26 U.S.C.  SECS. 4411, 4412.  HIS CONVICTION WAS AFFIRMED
BY THE COURT OF APPEALS FOR THE FIRST CIRCUIT, 301 F.2D 314.  THE
PETITIONER CONTENDS THAT HIS CONVICTION SHOULD HAVE BEEN REVERSED
BECAUSE AT HIS TRIAL THE PROSECUTOR WAS PERMITTED TO ASK TWO WITNESSES
INCRIMINATING QUESTIONS CONCERNING THEIR RELATIONSHIP WITH THE
PETITIONER, WITH THE KNOWLEDGE THAT THE WITNESSES WOULD INVOKE THEIR
PRIVILEGE AGAINST SELF-INCRIMINATION.  WE GRANTED CERTIORARI TO RESOLVE
AN ASSERTED CONFLICT WITH DECISIONS IN OTHER CIRCUITS.  371 U.S. 858. 

THE THEORY OF THE PROSECUTION'S CASE WAS THAT THE PETITIONER HAD
OPERATED A SMALL GAMBLING RING IN CHELSEA, MASSACHUSETTS.  HIS METHOD
OF OPERATION, ACCORDING TO THE GOVERNMENT'S THEORY, WAS TO VISIT
SEVERAL NEIGHBORHOOD STORES AT REGULAR TIMES EACH DAY FOR THE PURPOSE
OF COLLECTING BETTING RECEIPTS AND PAYING OFF WINNING BETS.  ONE OF THE
SHOPS HE VISITED WAS A VARIETY STORE OWNED BY IRVING AND ANNETTE KAHN. 

INFORMATIONS CHARGING VIOLATIONS OF THE FEDERAL WAGERING TAX LAWS
WERE FILED AGAINST THE PETITIONER AND THE KAHNS ON THE SAME DAY.  ALL
THREE WERE REPRESENTED BY THE SAME LAWYER, JOHN H. FITZGERALD, AND ALL
THREE PLEADED NOT GUILTY.  ON THE DAY OF THE PETITIONER'S TRIAL, THE
KAHNS CHANGED THEIR PLEAS TO GUILTY.  BECAUSE THEY HAD PREVIOUSLY TOLD
GOVERNMENT INVESTIGATORS THAT THE PETITIONER HAD COLLECTED THE WAGERS
MADE IN THEIR STORE AND HAD PERSONALLY SETTLED ACCOUNTS WITH THEM, THE
KAHNS WERE SUBPOENAED TO APPEAR AT THE PETITIONER'S TRIAL. 

IN HIS OPENING STATEMENT TO THE JURY, THE PROSECUTING ATTORNEY STATED
THAT HE HAD REASON TO BELIEVE "A HUSBAND AND WIFE" WOULD TESTIFY
AGAINST THE PETITIONER.  UPON THE COMPLETION OF THE OPENING STATEMENT,
MR. FITZGERALD APPROACHED THE BENCH, AND THE FOLLOWING COLLOQUY TOOK
PLACE: 

"MR. FITZGERALD:  YOUR HONOR, IT IS MY UNDERSTANDING THAT THE UNITED
STATES ATTORNEY IS GOING TO ATTEMPT TO USE THE KAHNS AS WITNESSES. 

"NOW, KEEPING IN MIND THAT THEY ARE DEFENDANTS, THAT THEY ARE
ENTITLED NOT TO TESTIFY IN THEIR OWN CASE: 

"THE COURT:  THEY HAVE PLEADED GUILTY. 

"MR. FITZGERALD:  I KNOW THAT, YOUR HONOR, BUT STILL I DIDN'T WAIVE
ANY CONSTITUTIONAL PRIVILEGES IN THEIR BEHALF. 

"THE COURT:  I THINK THE LAW IS THAT THEY HAVE NO CONSTITUTIONAL
PRIVILEGES AFTER THEY HAVE PLEADED. 

"MR. FITZGERALD:  YOUR HONOR, FURTHER THAT THEY ARE UNDER
INVESTIGATION BY THE INTERNAL REVENUE DEPARTMENT AS FAR AS THEIR INCOME
TAXES ARE CONCERNED, AND EVERYTHING ELSE. 

"THE COURT:  WELL, I HAVEN'T SEEN THEM TAKE THE STAND YET, AND IF
THEY CLAIM THE FIFTH, I WILL RULE ON IT THEN." 

AFTER BRIEF TESTIMONY BY THE FIRST GOVERNMENT WITNESS, THE UNITED
STATES CALLED ANNETTE KAHN.  MR. FITZGERALD REPEATED HIS OBJECTION FOR
THE RECORD, BUT MADE NO FURTHER ARGUMENTS.  (FN1)  MRS. KAHN THEN
TESTIFIED TO HER NAME, HER ADDRESS, THE OWNERSHIP OF THE STORE, AND HER
ACQUAINTANCE WITH THE PETITIONER.  SHE REFUSED TO ANSWER WHETHER SHE
AND HER HUSBAND HAD "SOME TYPE OF BUSINESS RELATIONSHIP" WITH THE
PETITIONER.  AN EXTENDED COLLOQUY AT THE BENCH ENSUED.  THE COURT
EVENTUALLY CONCLUDED THAT MRS. KAHN'S PLEA OF GUILTY TO THE CHARGE OF
ENGAGING IN THE BUSINESS OF ACCEPTING WAGERS DEPRIVED HER OF THE RIGHT
TO REFUSE TO TESTIFY ABOUT HER OWN GAMBLING ACTIVITY.  BUT THE COURT
ALSO RULED THAT SHE DID NOT HAVE TO TESTIFY ABOUT ANY DEALINGS WITH
THIRD PERSONS SINCE SHE WAS STILL, AT LEAST THEORETICALLY, SUBJECT TO
PROSECUTION FOR CONSPIRACY, OR POSSIBLY BRIBERY.  MR. FITZGERALD MADE
NO NEW OBJECTIONS OR ARGUMENTS DURING THIS COLLOQUY.  TO THE CONTRARY,
HE APPEARED TO ACQUIESCE IN THE QUESTIONING OF MRS. KAHN IN OPEN COURT
ONCE HE HAD MANAGED TO WORK OUT A CONVENIENT MEANS FOR ADVISING HER
WHEN TO ASSERT HER PRIVILEGE AGAINST SELF-INCRIMINATION.  (FN2) 

THE QUESTIONING OF MRS. KAHN WAS RESUMED AFTER A BRIEF RECESS.  THE
PROSECUTING ATTORNEY BEGAN A LINE OF QUESTIONING DESIGNED TO DETERMINE
WHETHER MRS. KAHN HAD KNOWN OF THE GAMBLING TAX REQUIREMENT BEFORE THE
DATE OF HER ARREST.  MR. FITZGERALD OBJECTED, ON THE GROUND THAT THE
QUESTIONS WERE NOT MATERIAL.  ANOTHER CONFERENCE AT THE BENCH WAS HELD,
IN WHICH THE PROSECUTING ATTORNEY EXPLAINED THAT HIS PURPOSE WAS TO
SHOW THAT MRS. KAHN WAS NOT IN DANGER OF A CONSPIRACY CHARGE.  THE
COURT SUSTAINED MR. FITZGERALD'S OBJECTION TO THE MATERIALITY OF THE
QUESTIONS.  THE INTERROGATION WAS THEN DISCONTINUED. 

AFTER ANOTHER RECESS, THE GOVERNMENT RESUMED THE PRESENTATION OF ITS
CASE BY CALLING ITS OTHER WITNESSES.  THEIR TESTIMONY ESTABLISHED THE
FOLLOWING CASE FOR THE PROSECUTION:  THE PETITIONER HAD BEEN UNDER
SURVEILLANCE BY THE GOVERNMENT AGENTS FOR ONE MONTH.  THEY HAD OBSERVED
HIM FOLLOWING THE SAME ROUTE TWICE A DAY, STOPPING FOR A FEW MINUTES IN
EACH OF SEVERAL VARIETY AND CIGAR STORES.  DURING THE PETITIONER'S
AFTERNOON ROUND, THE POCKETS IN HIS COAT BECAME PROGRESSIVELY MORE
BULGING, INFERENTIALLY WITH MATERIAL GATHERED IN EACH OF THE STORES. 
PETITIONER RETURNED HOME WITH THE MATERIAL.  NO PERSONS WERE SEEN TO
ENTER HIS HOME BETWEEN HIS ARRIVAL AFTER THE AFTERNOON ROUND AND HIS
DEPARTURE THE NEXT MORNING FOR THE MORNING ROUND.  EXPERT TESTIMONY WAS
INTRODUCED SHOWING THAT THE PETITIONER'S ACTIVITIES WERE CONSISTENT
WITH THOSE OF A PRINCIPAL IN A GAMBLING OPERATION.  THE AFTERNOON
VISITS DURING WHICH HIS POCKETS BECAME FILLED, IT WAS TESTIFIED,
INDICATED A PICK-UP OF THE DAY'S BETTING SLIPS, AND THE MORNING VISITS
WOULD FIT A PATTERN OF "SETTING-UP" THE STORE OWNERS TO PAY OFF THE
PREVIOUS DAY'S WINNING BETS.  THE ABSENCE OF ANY APPARENT CONTACT WITH
OTHER PERSONS AFTER THE PETITIONER'S AFTERNOON ROUND WOULD INDICATE
THAT HE HIMSELF WAS ACTING AS BANKER FOR THE ENTERPRISE, AND WAS NOT
PASSING THE MONEY ON TO ANOTHER PRINCIPAL.  THE FINAL INGREDIENT OF THE
GOVERNMENT'S CASE WAS CERTAIN MATERIAL FOUND DURING A SEARCH OF THE
PETITIONER'S HOME.  THIS CONSISTED OF "SLIPS OF NUMBER POOL WAGERS,"
"DAILY DOUBLE HORSE BET SLIPS," AND OVER $1,000 CASH IN BILLS OF SMALL
DENOMINATIONS.  THE GAMBLING SLIPS WERE IDENTIFIED BY EXPERTS AS THOSE
NORMALLY HELD BY THE "BOOKIE" RATHER THAN BE THE BETTOR. 

ONE OF THE KEY ISSUES WHICH DEVELOPED DURING THIS PART OF THE CASE WAS
THE QUESTION OF WHETHER THE PLACES REGULARLY VISITED BY THE PETITIONER
WERE, IN FACT, KNOWN GAMBLING ESTABLISHMENTS.  THE COURT SUSTAINED
OBJECTIONS BY MR. FITZGERALD TO SUCH TESTIMONY BY GOVERNMENT AGENTS, ON
THE GROUND THAT THE AGENTS COULD NOT TESTIFY TO EVENTS OBSERVED WHEN
THE PETITIONER WAS NOT PRESENT. 

THE GOVERNMENT THEN CALLED IRVING KAHN TO THE STAND.  NO OBJECTION
WAS MADE.  MR. KAHN TESTIFIED VOLUNTARILY THAT HE OWNED THE STORE IN
QUESTION, AND THAT HE WAS ACQUAINTED WITH THE PETITIONER.  AFTER BEING
DIRECTED TO ANSWER BY THE COURT, HE TESTIFIED THAT HE HAD HAD DEALINGS
WITH THE PETITIONER.  AND, WHEN A SECOND CLAIM OF PRIVILEGE WAS
OVERRULED, HE ALSO TESTIFIED THAT HE HAD ACCEPTED WAGERS IN HIS STORE. 
IN THE QUESTIONING WHICH FOLLOWED, THE WITNESS TESTIFIED THAT THE
PETITIONER DID COME TO HIS STORE "A COUPLE OF TIMES A WEEK," BUT DENIED
THAT THE PETITIONER CAME EVERY DAY IN THE MORNING AND AFTERNOON. 

IN THE COURSE OF THIS INTERROGATION THE WITNESS WAS ASKED A TOTAL OF
ONLY FOUR QUESTIONS TO WHICH HIS REFUSAL TO ANSWER WAS SUSTAINED. 
(FN3)  AT NO TIME DURING THIS QUESTIONING DID MR. FITZGERALD OBJECT TO
THE QUESTIONS ON BEHALF OF THE PETITIONER, NOR DID HE REQUEST ANY
INSTRUCTIONS REGARDING THE INFERENCES THE JURY MIGHT DRAW FROM THESE
REFUSALS TO ANSWER.  INDEED, COUNSEL ATTEMPTED IN HIS CLOSING ARGUMENT
TO UTILIZE THAT PART OF IRVING KAHN'S TESTIMONY WHICH HAD CONTRADICTED
THE GOVERNMENT'S EVIDENCE ABOUT THE REGULARITY OF THE PETITIONER'S
VISITS.  THE CLOSING ARGUMENTS FOR THE GOVERNMENT CONTAINED NO
REFERENCES TO THE KAHNS' REFUSAL TO ANSWER, AND THE JURY WAS NOT TOLD
THAT THE KAHNS HAD BEEN ARRESTED OR CHARGED TOGETHER WITH THE
PETITIONER. 

THE COURT'S INSTRUCTIONS TO THE JURY CONTAINED THE FOLLOWING
STATEMENT WITH REGARD TO THE KAHNS' TESTIMONY: 

"NOR SHOULD ANY INFERENCE BE DRAWN AGAINST HIM BECAUSE THE KAHNS
REFUSED TO TESTIFY, UNLESS IT WOULD BE A LOGICAL INFERENCE THAT WOULD
APPEAL TO YOU AS HAVING A DIRECT BEARING UPON THE DEFENDANT'S GUILT." 

MR. FITZGERALD MADE NO OBJECTION WHATEVER TO THIS PART OF THE
INSTRUCTIONS. 

IN TURNING TO THE PETITIONER'S ARGUMENT THAT HIS CONVICTION MUST BE
SET ASIDE BECAUSE OF THE CIRCUMSTANCES DESCRIBED, WE EMPHASIZE AT THE
OUTSET WHAT THIS CASE DOES NOT INVOLVE.  NO CONSTITUTIONAL ISSUES OF
ANY KIND ARE PRESENTED.  THE PETITIONER DOES NOT CLAIM ANY INFRINGEMENT
OF HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.  (FN4)  HE
DOES NOT CONTEND THAT THE KAHNS WERE IN ANY WAY PREJUDICED BY THEIR
ASSERTION OF THIS CONSTITUTIONAL PRIVILEGE.  (FN5)  ALL THAT THIS CASE
INVOLVES, IN SHORT, IS A CLAIM OF EVIDENTIARY TRIAL ERROR. 

THE PETITIONER'S PRINCIPAL CONTENTION IS THAT REVERSIBLE ERROR WAS
COMMITTED IN PERMITTING THE GOVERNMENT TO QUESTION THE KAHNS AFTER IT
WAS KNOWN THAT THEY WERE GOING TO CLAIM THEIR PRIVILEGE NOT TO
INCRIMINATE THEMSELVES.  IT IS SAID THAT WHEN A WITNESS IS ASKED
WHETHER HE PARTICIPATED IN CRIMINAL ACTIVITY WITH THE DEFENDANT, A
REFUSAL TO ANSWER BASED ON THE PRIVILEGE AGAINST SELF-INCRIMINATION
TENDS TO IMPLY TO THE JURY THAT A TRUTHFUL ANSWER WOULD BE IN THE
AFFIRMATIVE.  THIS INFERENCE, THE PETITIONER ARGUES, CANNOT PROPERLY BE
USED AS EVIDENCE AGAINST A CRIMINAL DEFENDANT.  TO SUPPORT THIS
ARGUMENT, THE PETITIONER RELIES ON DICTA IN SEVERAL FEDERAL CASES AND
UPON THE DECISION IN UNITED STATES V. MALONEY, 262 F.2D 535, IN WHICH
THE COURT OF APPEALS FOR THE SECOND CIRCUIT SAID, "SUCH REFUSALS TO
TESTIFY HAVE BEEN UNIFORMLY HELD NOT TO BE A PERMISSIBLE BASIS FOR
INFERRING WHAT WOULD HAVE BEEN THE ANSWER, ALTHOUGH LOGICALLY THEY ARE
VERY PERSUASIVE."  ID., AT 537.  (FN6) 

NONE OF THE SEVERAL DECISIONS DEALING WITH THIS QUESTION SUGGESTS
THAT REVERSIBLE ERROR IS INVARIABLY COMMITTED WHENEVER A WITNESS CLAIMS
HIS PRIVILEGE NOT TO ANSWER.  RATHER, THE LOWER COURTS HAVE LOOKED TO
THE SURROUNDING CIRCUMSTANCES IN EACH CASE, FOCUSING PRIMARILY ON TWO
FACTORS, EACH OF WHICH SUGGESTS A DISTINCT GROUND OF ERROR.  FIRST,
SOME COURTS HAVE INDICATED THAT ERROR MAY BE BASED UPON A CONCEPT OF
PROSECUTORIAL MISCONDUCT, WHEN THE GOVERNMENT MAKES A CONSCIOUS AND
FLAGRANT ATTEMPT TO BUILD ITS CASE OUT OF INFERENCES ARISING FROM USE
OF THE TESTIMONIAL PRIVILEGE.  THIS SEEMS TO HAVE BEEN ONE OF THE
PRINCIPAL REASONS UNDERLYING THE FINDING OF REVERSIBLE ERROR IN UNITED
STATES V. MALONEY, SUPRA.  IN THAT CASE, THE PROSECUTION ADMITTED
KNOWING THAT TWO OF ITS KEY WITNESSES COULD VALIDLY INVOKE THE
PRIVILEGE OF SELF-INCRIMINATION AND INTENDED TO DO SO.  THE PROSECUTOR
NEVERTHELESS CALLED AND QUESTIONED THEM.  THE COURT ALSO FOUND THAT THE
GOVERNMENT'S CLOSING ARGUMENT ATTEMPTED TO MAKE USE OF THE ADVERSE
INFERENCES FROM THEIR REFUSALS TO TESTIFY.  SEE ALSO UNITED STATES V.
TUCKER, 267 F.2D 212.  A SECOND THEORY SEEMS TO REST UPON THE
CONCLUSION THAT, IN THE CIRCUMSTANCES OF A GIVEN CASE, INFERENCES FROM
A WITNESS' REFUSAL TO ANSWER ADDED CRITICAL WEIGHT TO THE PROSECUTION'S
CASE IN A FORM NOT SUBJECT TO CROSS-EXAMINATION, AND THUS UNFAIRLY
PREJUDICED THE DEFENDANT.  THIS THEORY SEEMS ALSO TO HAVE BEEN PRESENT
TO SOME EXTENT IN THE MALONEY DECISION, WHERE THE COURT NOTED THAT THE
CHALLENGED INFERENCES WERE THE ONLY CORROBORATION FOR DUBIOUS AND
INTERESTED TESTIMONY BY THE GOVERNMENT'S CHIEF WITNESS.  262 F.2D, AT
536-537.  ON THE OTHER HAND, COURTS HAVE FAILED TO FIND REVERSIBLE
ERROR WHEN SUCH EPISODES WERE "NO MORE THAN MINOR LAPSES THROUGH A LONG
TRIAL."  UNITED STATES V. HISS, 185 F.2D 822, 832 (C.A.2D CIR.).  SEE
ALSO UNITED STATES V. AMADIO, 215 F.2D 605, 614 (C.A. 7TH CIR.).  AND
EVEN WHEN THE OBJECTIONABLE INFERENCES MIGHT HAVE BEEN FOUND
PREJUDICIAL, IT HAS BEEN HELD THAT INSTRUCTIONS TO THE JURY TO
DISREGARD THEM SUFFICIENTLY CURED THE ERROR.  (FN7) 

THE PETITIONER APPEARS TO CONTEND THAT ERROR WAS COMMITTED UNDER BOTH
THEORIES.  HE STRESSES THE FACT THAT THE PROSECUTOR HAD ADVANCE NOTICE
OF THE KAHNS' INTENTION TO INVOKE THE FIFTH AMENDMENT, BUT QUESTIONED
THEM NEVERTHELESS.  HE ALSO ARGUES THAT THE INFERENCES FROM THE KAHNS'
REFUSALS TO TESTIFY WERE CRUCIAL TO THE GOVERNMENT'S CASE, POINTING OUT
THAT THE REST OF THE GOVERNMENT'S EVIDENCE AGAINST THE PETITIONER WAS
ENTIRELY CIRCUMSTANTIAL. 

WE NEED NOT PASS UPON THE CORRECTNESS OF THE SEVERAL LOWER COURT
DECISIONS UPON WHICH THE PETITIONER RELIES, (FN8) FOR WE THINK THAT
EVEN WITHIN THE BASIC RATIONALE OF THOSE CASES REVERSIBLE ERROR WAS NOT
COMMITTED IN THIS CASE.  IN THE FIRST PLACE, THE RECORD DOES NOT
SUPPORT ANY INFERENCE OF PROSECUTORIAL MISCONDUCT.  IT IS TRUE, OF
COURSE, THAT MR. FITZGERALD ANNOUNCED THAT THE KAHNS WOULD INVOKE THEIR
TESTIMONIAL PRIVILEGE IF QUESTIONED.  BUT CERTAINLY THE PROSECUTOR NEED
NOT ACCEPT AT FACE VALUE EVERY ASSERTED CLAIM OF PRIVILEGE, NO MATTER
HOW FRIVOLOUS.  IN THIS CASE, THE PROSECUTOR INITIALLY DID NOT BELIEVE
THAT THE KAHNS COULD PROPERLY INVOKE THEIR PRIVILEGE AGAINST SELF
INCRIMINATION, REASONING WITH SOME JUSTIFICATION THAT THEIR PLEA OF
GUILTY TO THE GAMBLING CHARGE WOULD ERASE ANY TESTIMONIAL PRIVILEGES AS
TO THAT CONDUCT.  HIS VIEW OF THE LAW WAS SUPPORTED BY SUBSTANTIAL
AUTHORITY, CF. REINA V. UNITED STATES, 364 U.S. 507, 513, AND WAS IN
FACT UPHELD BY THE TRIAL JUDGE.  ALTHOUGH IT WAS LATER RULED THAT THE
GUILTY PLEA DID NOT RENDER ALL OF THE KAHNS' CONDUCT IMMUNE FROM
FURTHER PROSECUTION.  THUS MAKING TESTIMONY AS TO THAT CONDUCT
PRIVILEGED, THERE REMAINED AN INDEPENDENT AND QUITE PROPER REASON TO
CALL THE KAHNS AS WITNESSES.  BOTH MR. AND MRS. KAHN POSSESSED
NONPRIVILEGED INFORMATION THAT COULD BE USED TO CORROBORATE THE
GOVERNMENT'S CASE.  THEY COULD, AND DID, TESTIFY THAT THEY KNEW THE
PETITIONER, THAT HE DID FREQUENTLY VISIT THEIR VARIETY STORE, AND THAT
THEY THEMSELVES HAD ENGAGED IN ACCEPTING WAGERS.  THE GOVERNMENT HAD A
RIGHT TO PUT THIS EVIDENCE BEFORE THE JURY. 

MOREOVER, THE BULK OF MRS. KAHN'S INTERROGATION, INCLUDING THE ONLY
QUESTION INVOLVING PRIVILEGED INFORMATION, OCCURRED BEFORE THE COURT
RULED THAT SHE HAD LIMITED TESTIMONIAL PRIVILEGE.  ALTHOUGH MR. KAHN
WAS CALLED TO THE STAND SOMEWHAT LATER, THERE HAD DEVELOPED, AT THAT
TIME, STILL ANOTHER CLEARLY PERMISSIBLE REASON FOR CALLING HIM.  THE
COURT'S RULINGS DURING THE QUESTIONING OF THE INTERVENING WITNESSES HAD
PREVENTED THE GOVERNMENT FROM INTRODUCING MOST OF THE EVIDENCE IT HAD
PLANNED TO USE TO SHOW THAT THE STORES ON THE PETITIONER'S DAILY ROUTE
WERE ENGAGED IN GAMBLING.  MR. KAHN HAD PLEADED GUILTY TO ACCEPTING
WAGERS, AND UNDER THE DISTRICT COURT'S PRIOR RULING HIS TESTIMONY THAT
HE HAD ACCEPTED WAGERS IN HIS STORE WAS CLEARLY NOT PRIVILEGED.  HE DID
SO TESTIFY, AFTER THE COURT DIRECTED HIM TO ANSWER.  IN THE COURSE OF
ELICITING THIS AND OTHER RELEVANT TESTIMONY, THE PROSECUTOR ASKED ONLY
FOUR QUESTIONS HELD TO BE PRIVILEGED. 

WE CANNOT FIND THAT THESE FEW LAPSES, WHEN VIEWED IN THE CONTEXT OF
THE ENTIRE TRIAL, AMOUNTED TO PLANNED OR DELIBERATE ATTEMPTS BY THE
GOVERNMENT TO MAKE CAPITAL OUT OF WITNESSES' REFUSALS TO TESTIFY.  WE
ARE PARTICULARLY RELUCTANT TO FASTEN SUCH MOTIVES ON THE GOVERNMENT'S
CONDUCT WHEN, AS HERE, DEFENSE COUNSEL NOT ONLY FAILED TO OBJECT ON
BEHALF OF THE DEFENDANT, BUT IN MANY INSTANCES ACTUALLY ACQUIESCED IN
THE PROCEDURE AS SOON AS THE RIGHTS OF THE WITNESSES WERE SECURED. 

NOR CAN WE FIND THAT THE FEW INVOCATIONS OF PRIVILEGE BY THE KAHNS
WERE OF SUCH SIGNIFICANCE IN THE TRIAL THAT THEY CONSTITUTED REVERSIBLE
ERROR EVEN IN THE ABSENCE OF PROSECUTORIAL MISCONDUCT.  THE EFFECT OF
THESE QUESTIONS WAS MINIMIZED BY THE LENGTHY NONPRIVILEGED TESTIMONY
WHICH THE KAHNS GAVE.  THEY TESTIFIED ABOUT THE CONDUCT OF GAMBLING
OPERATIONS IN THEIR STORE, AS WELL AS THEIR GENERAL ASSOCIATION WITH
THE PETITIONER.  ONCE THESE FACTS WERE ADMITTED BY THE KAHNS
THEMSELVES, AFTER GOVERNMENT AGENTS HAD TESTIFIED TO THE PETITIONER'S
DAILY VISITS, A NATURAL AND COMPLETELY PERMISSIBLE INFERENCE COULD BE
DRAWN LINKING THE PETITIONER'S VISITS WITH THE ADMITTED GAMBLING
OPERATION.  THUS THE PRESENT CASE IS NOT ONE, LIKE MALONEY, IN WHICH A
WITNESS' REFUSAL TO TESTIFY IS THE ONLY SOURCE, OR EVEN THE CHIEF
SOURCE, OF THE INFERENCE THAT THE WITNESS ENGAGED IN CRIMINAL ACTIVITY
WITH THE DEFENDANT.  IN THIS CASE THE FEW CLAIMS OF TESTIMONIAL
PRIVILEGE WERE AT MOST CUMULATIVE SUPPORT FOR AN INFERENCE ALREADY WELL
ESTABLISHED BY THE NONPRIVILEGED PORTION OF THE WITNESS' TESTIMONY. 

IT SHOULD BE BORNE IN MIND THAT NOTHING IN THIS CASE PRESENTS THE
ISSUE WHETHER THE PETITIONER WOULD HAVE BEEN ENTITLED TO INSTRUCTIONS
OR OTHER CURATIVE DEVICES (FN9) IF HE HAD ASKED FOR THEM.  NO SUCH
REQUESTS WERE EVER MADE.  FAR FROM IT, MR. FITZGERALD IMPLIEDLY
ACCEPTED THE KAHNS' TESTIMONY AND ATTEMPTED TO USE IT ON BEHALF OF THE
PETITIONER IN HIS ARGUMENT TO THE JURY.  THE PETITIONER WOULD HAVE US
HOLD THAT EVEN IN THESE CIRCUMSTANCES THE COURT COMMITTED REVERSIBLE
ERROR BECAUSE IT DID NOT, SUA SPONTE, TAKE SOME AFFIRMATIVE ACTION.  WE
SEE NO REASON TO REQUIRE SUCH EXTRAVAGANT PROTECTION AGAINST ERRORS
WHICH WERE NOT OBVIOUSLY PREJUDICIAL AND WHICH THE PETITIONER HIMSELF
APPEARED TO DISREGARD.  (FN10) 

THERE REMAINS FOR CONSIDERATION A QUESTION CONCERNING THE CORRECTNESS
OF THE COURT'S INSTRUCTION ON THE SUBJECT OF THE KAHNS' REFUSALS TO
TESTIFY.  THIS ISSUE WAS NOWHERE MENTIONED IN THE PETITION FOR
CERTIORARI IN THIS COURT, AND UNDER OUR RULES IT IS NOT BEFORE US.
(FN11)  EVEN IF IT WERE, WE COULD NOT FIND THAT THE INSTRUCTION
AMOUNTED TO REVERSIBLE ERROR ON THE FACTS OF THIS CASE.  NO OBJECTION
WAS EVER MADE TO THIS INSTRUCTION, EVEN THOUGH COUNSEL FOR THE
PETITIONER DID OBJECT TO OTHER ASPECTS OF THE CHARGE.  THUS, WE ARE NOT
CONCERNED WITH WHETHER THE INSTRUCTION WAS RIGHT, BUT ONLY WHETHER,
ASSUMING IT WAS WRONG, IT WAS A PLAIN ERROR OR DEFECT "AFFECTING
SUBSTANTIAL RIGHTS" UNDER RULE 52(B) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE.  (FN12)  WHAT HAS BEEN SAID CONCERNING THE VERY LIMITED
EFFECT OF ANY INFERENCES ARISING FROM THE KAHNS' REFUSALS TO TESTIFY
MAKES IT CLEAR THAT THIS BRIEF PASSAGE IN THE CHARGE COULD NOT HAVE
AFFECTED ANY SUBSTANTIAL RIGHTS OF THE PETITIONER.  AFFIRMED. 

FN1  "MR. FITZGERALD:  YOUR HONOR, MAY THE RECORD SHOW THAT I OBJECT
TO THE USE OF THIS WITNESS. 

"THE COURT:  ALL RIGHT, IT MAY BE NOTED." 

FN2  "MR. FITZGERALD:  YOUR HONOR, MAY I STAND BESIDE HER WHILE SHE
TESTIFIES, BEING HER COUNSEL? 

"THE COURT:  WELL, I WOULD RATHER HAVE YOU NOT STAND BESIDE HER,
BECAUSE THAT COULD IMPRESS THE JURY. 

"BUT ASK THE QUESTIONS SLOWLY, AND YOU CAN TAKE YOUR OBJECTION EACH
TIME. 

     *         *         *         *         * 

"MR. FITZGERALD:  YOUR HONOR, IF I SHOULD RISE IN MY CHAIR, MAY THAT
BE TAKEN THAT SHE PLEADS THE FIFTH AMENDMENT? 

"THE COURT:  YES.  NOW, THE QUESTION PENDING IS WHAT?" 

FN3  "CAN YOU TELL US WHAT THOSE DEALINGS (THE WITNESS' DEALINGS WITH
THE PETITIONER) WERE?" 

"AND WERE YOU PAID A COMMISSION ON ALL THE BETS YOU TOOK IN YOUR
VARIETY STORE?" 

"WHO DID YOU ACCEPT THE BETS FOR THAT YOU TOOK IN YOUR VARIETY
STORE?" 

"DID YOU EVER TAKE BETS FOR THE DEFENDANT DAVID NAMET?" 

FN4  THE PETITIONER DID NOT TAKE THE STAND.  THE COURT'S INSTRUCTION
CONCERNING THIS FACT WAS AS FOLLOWS: 

"  ...  YOU MUST NOT DRAW ANY INFERENCE FROM THE FACT THAT THE
DEFENDANT HIMSELF DID NOT TAKE THE STAND.  HE DOESN'T HAVE TO.  HE CAN
SIT MUTE AND STAND OR FALL UPON THE GOVERNMENT'S CASE.  OR HE MAY TAKE
THE STAND AS HE WISHES.  BUT FROM THE FACT THAT HE DIDN'T TAKE IT, YOU
SHOULD NOT DRAW ANY INFERENCE AGAINST HIM." 

FN5  CF. GRUNEWALD V. UNITED STATES, 353 U.S. 391, 415-424;
KONIGSBERG V. STATE BAR, 353 U.S. 252. 

FN6  SEE UNITED STATES V. TUCKER, 267 F.2D 212, 215; UNITED STATES V.
GERNIE, 252 F.2D 664; UNITED STATES V. ROMERO, 249 F.2D 371; UNITED
STATES V. CIOFFI, 242 F.2D 473; UNITED STATES V. AMADIO, 215 F.2D 605;
UNITED STATES V. HISS, 185 F.2D 822; WEINBAUM V. UNITED STATES, 184
F.2D 330; UNITED STATES V. 5 CASES, ETC., 179 F.2D 519.  SEE GENERALLY
86 A.L.R.2D ANN. 1443. 

FN7  SEE, E.G., UNITED STATES V. GERNIE, 252 F.2D 664 (C.A.2D CIR.);
WEINBAUM V. UNITED STATES, 184 F.2D 330 (C.A. 9TH CIR.).  SEE ALSO
UNITED STATES V. MALONEY, SUPRA, AT 538. 

FN8  SEE GENERALLY GRUNEWALD V. UNITED STATES, 353 U.S. 391, 415-426;
STEWART V. UNITED STATES, 366 U.S. 1. 

FN9  THE GOVERNMENT HAS SUGGESTED THAT IN APPROPRIATE CIRCUMSTANCES
THE DEFENDANT MAY BE ENTITLED TO REQUEST A PRELIMINARY SCREENING OF THE
WITNESS' TESTIMONY, OUTSIDE THE HEARING OF THE JURY. 

FN10  FINDING, AS WE DO, THAT THIS CASE INVOLVES NEITHER MISCONDUCT
BY THE PROSECUTION NOR INFERENCES OF MATERIAL IMPORTANCE, WE NEED NOT
PASS UPON THE HOLDING IN UNITED STATES V. MALONEY, SUPRA, THAT A
FAILURE TO GIVE PROPER CURATIVE INSTRUCTIONS WHEN SUCH ELEMENTS ARE
PRESENT CONSTITUTES PLAIN ERROR. 

FN11  THE ISSUE WAS BROUGHT TO THIS COURT'S ATTENTION IN THE
GOVERNMENT'S MEMORANDUM IN REPLY TO THE PETITION. 

RULE 23, PAR. 1(C) OF THE SUPREME COURT RULES PROVIDES, "ONLY THE
QUESTIONS SET FORTH IN THE PETITION OR FAIRLY COMPRISED THEREIN WILL BE
CONSIDERED BY THE COURT." 

FN12  RULE 30 PROVIDES, IN PERTINENT PART:  "NO PARTY MAY ASSIGN AS
ERROR ANY PORTION OF THE CHARGE OR OMISSION THEREFROM UNLESS HE OBJECTS
THERETO BEFORE THE JURY RETIRES TO CONSIDER ITS VERDICT, STATING
DISTINCTLY THE MATTER TO WHICH HE OBJECTS AND THE GROUNDS OF HIS
OBJECTION.  OPPORTUNITY SHALL BE GIVEN TO MAKE THE OBJECTION OUT OF THE
HEARING OF THE JURY." 

RULE 52 PROVIDES: 

"(A)  HARMLESS ERROR.  ANY ERROR, DEFECT, IRREGULARITY OR VARIANCE
WHICH DOES NOT AFFECT SUBSTANTIAL RIGHTS SHALL BE DISREGARDED. 

"(B)  PLAIN ERROR.  PLAIN ERRORS OR DEFECTS AFFECTING SUBSTANTIAL
RIGHTS MAY BE NOTICED ALTHOUGH THEY WERE NOT BROUGHT TO THE ATTENTION
OF THE COURT." 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

I BELIEVE IT WAS ERROR FOR THE TRIAL COURT TO PERMIT THE PROSECUTING
ATTORNEY IN THE PRESENCE OF THE JURY TO ASK QUESTIONS WHICH HE WELL
KNEW THE WITNESSES WOULD REFUSE TO ANSWER ON THE GROUND OF SELF
INCRIMINATION.  AND I CANNOT CONCLUDE THAT THIS ERROR WAS NOT
PREJUDICIAL TO THE DEFENDANT.  CERTAINLY THE PROSECUTOR MUST HAVE
THOUGHT THE REFUSALS TO ANSWER WOULD HELP THE STATE'S CASE; OTHERWISE,
HE WOULD NOT HAVE ASKED THE QUESTIONS THAT HE KNEW WOULD NOT BE
ANSWERED.  ONE NEED ONLY GLANCE AT THE QUESTIONS SET OUT IN NOTE 3 OF
THE MAJORITY OPINION TO SEE THAT, AS PEOPLE ORDINARILY REASON, THE JURY
WOULD HAVE INFERRED THAT THE WITNESSES REFUSED TO ANSWER SO THAT THEY
WOULD NOT HAVE TO ADMIT THAT THEY HAD BEEN ENGAGED IN VIOLATING THE
GAMBLING LAWS WITH THE DEFENDANT.  INDEED, A PART OF THE COURT'S
CHARGE, TO WHICH NO EXCEPTION WAS TAKEN, LEFT THE JURY FREE TO INFER
THIS DEFENDANT'S GUILT FROM THE REFUSAL OF THE KAHNS TO ANSWER THE
QUESTIONS.*  TO MY WAY OF THINKING, THIS IS AN UNFAIR WAY OF GETTING
CONVICTIONS AND SHOULD NOT BE CONDONED BY THE COURT'S TREATING THESE
QUESTIONS AS MINOR LAPSES OR BY ITS SPECULATION AS TO HOW GOOD OR BAD
THE MOTIVES OF THE PROSECUTOR WERE.  NOR CAN I AGREE THAT THE DEFENDANT
EITHER DISREGARDED OR ACQUIESCED IN THE TRIAL COURT'S ERRONEOUSLY
PERMITTING THE JURY TO BE INFLUENCED BY THE WITNESSES' CLAIM OF
PRIVILEGE.  EVEN BEFORE THE WITNESSES WERE PUT ON THE STAND BY THE
PROSECUTOR, DEFENDANT'S COUNSEL WARNED THE COURT AND THE PROSECUTOR
THAT THE PRIVILEGE WOULD BE CLAIMED, AND LATER, WHEN EXAMINATION OF THE
WITNESSES HAD BEGUN, THE COURT ACKNOWLEDGED NOT ONLY THE RIGHT TO CLAIM
THE FIFTH AMENDMENT'S PRIVILEGE UNDER THE CIRCUMSTANCES BUT ALSO THE
COURT'S INTENTION TO SUSTAIN THE CLAIM IF MADE.  THE COURT NEVERTHELESS
ALLOWED THE GOVERNMENT TO PROCEED WITH ITS EXAMINATION, DURING WHICH
THE JURY HEARD THE WITNESSES CLAIM, AND THE COURT SUSTAIN, THEIR
PRIVILEGE IN REFUSING TO ANSWER SEVERAL QUESTIONS PUT TO THEM.  TRUE,
COUNSEL FOR DEFENDANT LATER TRIED, AS ANY GOOD LAWYER WOULD, TO TURN
THIS BAD SITUATION TO HIS ADVANTAGE BY REFERRING TO IT.  BUT THIS TOOK
PLACE AFTER THE TRIAL COURT HAD PERMITTED THE POISONOUS QUESTIONS TO BE
ASKED OVER THE ORIGINAL OBJECTIONS.  THIS WAS NOT ACQUIESCENCE IN
ERROR.  I WOULD REVERSE. 

*"NOR SHOULD ANY INFERENCE BE DRAWN AGAINST HIM (PETITIONER) BECAUSE
THE KAHNS REFUSED TO TESTIFY, UNLESS IT WOULD BE A LOGICAL INFERENCE
THAT WOULD APPEAL TO YOU AS HAVING A DIRECT BEARING UPON THE
DEFENDANT'S GUILT." 
..END :

















WHIPPLE V. COMMISSIONER OF INTERNAL REVENUE 373 U.S. 193 


NO. 305.  ARGUED MARCH 26-27, 1963.  - DECIDED MAY 13, 1963.  - 301 F.2D
108, JUDGMENT VACATED AND CAUSE REMANDED. 


PETITIONER ORGANIZED, OWNED THE CONTROLLING INTEREST IN, AND MANAGED
SEVERAL BUSINESS CORPORATIONS.  ONE WAS A BOTTLING COMPANY TO WHICH HE
SOLD ON CREDIT BOTTLING EQUIPMENT OWNED BY HIM INDIVIDUALLY, LEASED A
PLANT BUILT BY HIM ON LAND WHICH HE OWNED INDIVIDUALLY, AND MADE A LOAN
TO PAY OFF OTHER CREDITORS.  ITS INDEBTEDNESS TO HIM BECAME WORTHLESS
IN 1953, AND HE DEDUCTED IT AS A BUSINESS BAD DEBT IN COMPUTING HIS
1953 TAXABLE INCOME.  THE COMMISSIONER CLAIMED THAT THE DEBT WAS A
NONBUSINESS BAD DEBT WITHIN THE MEANING OF SEC. 23(K)(4) OF THE
INTERNAL REVENUE CODE OF 1939, AS AMENDED IN 1942, AND ASSESSED
DEFICIENCIES.  THE TAX COURT DETERMINED THAT PETITIONER WAS NOT IN THE
BUSINESS OF ORGANIZING, PROMOTING, MANAGING OR FINANCING CORPORATIONS,
OF BOTTLING SOFT DRINKS OR OF GENERAL FINANCING AND MONEY LENDING, AND
IT SUSTAINED THE DEFICIENCY.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE 1942 AMENDMENT OF SEC. 23(K) WAS DESIGNED TO MAKE FULL
DEDUCTIBILITY OF A BAD DEBT TURN UPON ITS PROXIMATE CONNECTION WITH
ACTIVITIES WHICH THE TAX LAWS RECOGNIZED AS A "TRADE OR BUSINESS," A
CONCEPT WHICH FALLS FAR SHORT OF REACHING EVERY INCOME-PRODUCING OR
PROFIT-MAKING ACTIVITY.  PP. 197-201. 

2.  ABSENT SUBSTANTIAL ADDITIONAL EVIDENCE, FURNISHING
ORGANIZATIONAL, PROMOTIONAL AND MANAGERIAL SERVICES TO CORPORATIONS FOR
A REWARD NOT DIFFERENT FROM THAT FLOWING TO AN INVESTOR IN THOSE
CORPORATIONS IS NOT A "TRADE OR BUSINESS," WITHIN THE MEANING OF SEC.
23(K)(4).  PP. 201-203. 

3.  THE DETERMINATIONS OF THE TAX COURT, AFFIRMED BY THE COURT OF
APPEALS, THAT PETITIONER WAS NOT ENGAGED IN THE BUSINESS OF MONEY
LENDING, OF FINANCING CORPORATIONS, OF BOTTLING SOFT DRINKS OR OF ANY
COMBINATION OF THESE WERE NOT CLEARLY ERRONEOUS, AND THEY WILL NOT BE
DISTURBED BY THIS COURT.  PP. 203-204. 

4.  HOWEVER, THE LOSS MAY HAVE BEEN ATTRIBUTABLE TO PETITIONER'S
POSITION AS THE OWNER AND LESSOR OF THE REAL ESTATE AND BOTTLING PLANT
IN WHICH THE CORPORATION DID BUSINESS.  SINCE NEITHER OF THE COURTS
BELOW DISPOSED OF THAT POSSIBILITY, THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS IN THE TAX COURT ON THAT QUESTION.  PP. 204-205. 

WHIPPLE ET UX. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

FOR THE DEDUCTION IN FULL OF WORTHLESS DEBTS OTHER THAN NONBUSINESS BAD
DEBTS WHILE SEC. 23(K)(4) RESTRICTS NONBUSINESS BAD DEBTS TO THE
TREATMENT ACCORDED LOSSES ON THE SALE OF SHORT-TERM CAPITAL ASSETS. 
(FN2)  THE STATUTE DEFINES A NONBUSINESS BAD DEBT IN PART AS "A DEBT
...  OTHER THAN A DEBT THE LOSS FROM THE WORTHLESSNESS OF WHICH IS
INCURRED IN THE TAXPAYER'S TRADE OR BUSINESS."  SEC. 23(K)(4).  THE
QUESTION BEFORE US IS WHETHER PETITIONER'S ACTIVITIES IN CONNECTION
WITH SEVERAL CORPORATIONS IN WHICH HE HOLDS CONTROLLING INTERESTS CAN
THEMSELVES BE CHARACTERIZED AS A TRADE OR BUSINESS SO AS TO PERMIT A
DEBT OWED BY ONE OF THE CORPORATIONS TO HIM TO BE TREATED WITHIN THE
GENERAL RULE OF SEC. 23(K)(1) AS A "BUSINESS" RATHER THAN A
"NONBUSINESS" BAD DEBT. 

PRIOR TO 1941 PETITIONER WAS A CONSTRUCTION SUPERINTENDENT AND AN
ESTIMATOR FOR A LUMBER COMPANY BUT DURING THAT YEAR AND OVER THE NEXT
SEVERAL ONES HE WAS INSTRUMENTAL IN FORMING AND WAS A MEMBER OF A
SERIES OF PARTNERSHIPS ENGAGED IN THE CONSTRUCTION OR CONSTRUCTION
SUPPLY BUSINESS.  IN 1949 AND 1950 HE WAS AN ORIGINAL INCORPORATOR OF
SEVEN CORPORATIONS, SOME OF WHICH WERE SUCCESSORS TO THE PARTNERSHIPS,
AND IN 1951 HE SOLD HIS INTEREST IN THE CORPORATIONS ALONG WITH HIS
EQUITY IN FIVE OTHERS IN THE RENTAL AND CONSTRUCTION BUSINESS, THE
PROFIT ON THE SALES BEING REPORTED AS LONG-TERM CAPITAL GAINS.  IN 1951
AND 1952 HE FORMED EIGHT NEW CORPORATIONS, ONE OF WHICH WAS MISSION
ORANGE BOTTLING CO. OF LUBBOCK, INC., BOUGHT THE STOCK OF A CORPORATION
KNOWN AS MASON ROOT BEER (FN3) AND ACQUIRED AN INTEREST IN A RELATED
VENDING MACHINE BUSINESS.  FROM 1951 TO 1953 HE ALSO BOUGHT AND SOLD
LAND, ACQUIRED AND DISPOSED OF A RESTAURANT AND PARTICIPATED IN SEVERAL
OIL VENTURES. 

ON APRIL 25, 1951, PETITIONER SECURED A FRANCHISE FROM MISSION DRY
CORPORATION ENTITLING HIM TO PRODUCE, BOTTLE, DISTRIBUTE AND SELL
MISSION BEVERAGES IN VARIOUS COUNTIES IN TEXAS.  TWO DAYS LATER HE
PURCHASED THE ASSETS OF A SOLE PROPRIETORSHIP IN THE BOTTLING BUSINESS
AND CONDUCTED THAT BUSINESS PURSUANT TO HIS FRANCHISE AS A SOLE
PROPRIETORSHIP.  ON JULY 1, 1951, THOUGH RETAINING THE FRANCHISE IN HIS
OWN NAME, HE SOLD THE BOTTLING EQUIPMENT TO MISSION ORANGE BOTTLING CO.
OF LUBBOCK, INC., A CORPORATION ORGANIZED BY PETITIONER AS MENTIONED,
OF WHICH HE OWNED APPROXIMATELY 80% OF THE SHARES OUTSTANDING.  (FN4)
IN 1952 HE PURCHASED LAND IN LUBBOCK AND ERECTED A BOTTLING PLANT
THEREON AT A COST OF $43,601 AND THEN LEASED THE PLANT TO MISSION
ORANGE FOR A 10-YEAR TERM AT A PRESCRIBED RENTAL.  DEPRECIATION WAS
TAKEN ON THE NEW BOTTLING PLANT ON PETITIONER'S INDIVIDUAL TAX RETURNS
FOR 1952 AND 1953. 

PETITIONER MADE SIZABLE CASH ADVANCES TO MISSION ORANGE IN 1952 AND
1953, AND ON DECEMBER 1, 1953, THE BALANCE DUE HIM, INCLUDING
$25,502.50 STILL OWING FROM HIS SALE OF THE BOTTLING ASSETS TO THE
CORPORATION IN JULY 1951, TOTALED $79,489.76.  ON DECEMBER 15, 1953,
PETITIONER ADVANCED TO MISSION ORANGE AN ADDITIONAL $48,000 TO PAY
GENERAL CREDITORS AND ON THE SAME DAY RECEIVED A TRANSFER OF THE ASSETS
OF THE CORPORATION WITH A BOOK VALUE OF $70,414.66.  THE NET AMOUNT
OWING TO PETITIONER ULTIMATELY TOTALED $56,975.10, WHICH DEBT BECAME
WORTHLESS IN 1953 AND IS IN ISSUE HERE.  DURING 1951, 1952 AND 1953
MISSION ORANGE MADE NO PAYMENTS OF INTEREST, RENT OR SALARY TO
PETITIONER ALTHOUGH HE DID RECEIVE SUCH INCOME FROM SOME OF HIS OTHER
CORPORATIONS.  (FN5) 

PETITIONER DEDUCTED THE $56,975.10 DEBT DUE FROM MISSION ORANGE AS A
BUSINESS BAD DEBT IN COMPUTING HIS 1953 TAXABLE INCOME.  THE
COMMISSIONER, CLAIMING THE DEBT WAS A NONBUSINESS BAD DEBT, ASSESSED
DEFICIENCIES.  THE TAX COURT, AFTER DETERMINING THAT PETITIONER IN 1953
WAS NOT IN THE BUSINESS OF ORGANIZING, PROMOTING, MANAGING OR FINANCING
CORPORATIONS, OF BOTTLING SOFT DRINKS OR OF GENERAL FINANCING AND MONEY
LENDING, SUSTAINED THE DEFICIENCIES.  A DIVIDED COURT OF APPEALS
AFFIRMED, 301 F.2D 108, AND UPON A CLAIM OF CONFLICT (FN6) AMONG THE
COURTS OF APPEALS, WE GRANTED CERTIORARI.  371 U.S. 875. 

  I. 

THE CONCEPT OF ENGAGING IN A TRADE OR BUSINESS AS DISTINGUISHED FROM
OTHER ACTIVITIES PURSUED FOR PROFIT IS NOT NEW TO THE TAX LAWS.  AS
EARLY AS 1916, CONGRESS, BY PROVIDING FOR THE DEDUCTION OF LOSSES
INCURRED IN A TRADE OR BUSINESS SEPARATELY FROM THOSE SUSTAINED IN
OTHER TRANSACTIONS ENTERED INTO FOR PROFIT, SEC. 5, REVENUE ACT OF
1916, C. 463, 39 STAT. 756, DISTINGUISHED THE BROAD RANGE OF INCOME OR
PROFIT PRODUCING ACTIVITIES FROM THOSE SATISFYING THE NARROW CATEGORY
OF TRADE OR BUSINESS.  THIS PATTERN HAS BEEN FOLLOWED ELSEWHERE IN THE
CODE.  SEE, E.G., SEC. 23(A)(1) AND (2) (ORDINARY AND NECESSARY
EXPENSES); SEC. 23(E)(1) AND (2) (LOSSES); SEC. 23(L)(1) AND (2)
(DEPRECIATION); SEC. 122(D)(5) (NET OPERATING LOSS DEDUCTION).  IT IS
NOT SURPRISING, THEREFORE, THAT WE APPROACH THE PROBLEM OF APPLYING
THAT TERM HERE WITH MUCH WRITING UPON THE SLATE. 

IN BURNET V. CLARK, 287 U.S. 410 (1932), THE LONG-TIME PRESIDENT AND
PRINCIPAL STOCKHOLDER OF A CORPORATION IN THE DREDGING BUSINESS
ENDORSED NOTES FOR THE COMPANY WHICH HE WAS FORCED TO PAY.  THESE
AMOUNTS WERE DEDUCTIBLE BY HIM IN THE CURRENT YEAR UNDER THE THEN
EXISTING LAW, BUT TO CARRY OVER THE LOSS TO LATER YEARS IT WAS
NECESSARY FOR IT TO HAVE RESULTED FROM THE OPERATION OF A TRADE OR
BUSINESS REGULARLY CARRIED ON BY THE TAXPAYER.  THE BOARD OF TAX
APPEALS DENIED THE CARRY-OVER BUT THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA HELD OTHERWISE ON THE GROUNDS THAT THE TAXPAYER DEVOTED ALL
OF HIS TIME AND ENERGIES TO CARRYING ON THE BUSINESS OF DREDGING AND
THAT HE WAS COMPELLED BY CIRCUMSTANCES TO ENDORSE THE COMPANY'S NOTES
IN ORDER TO SUPPLY IT WITH OPERATING FUNDS.  (FN7)  THIS COURT IN TURN
REVERSED AND REINSTATED THE JUDGMENT OF THE BOARD OF TAX APPEALS, SINCE
"THE RESPONDENT WAS EMPLOYED AS AN OFFICER OF THE CORPORATION; THE
BUSINESS WHICH HE CONDUCTED FOR IT WAS NOT HIS OWN  ...  .  THE
UNFORTUNATE ENDORSEMENTS WERE NO PART OF HIS ORDINARY BUSINESS, BUT
OCCASIONAL TRANSACTIONS INTENDED TO PRESERVE THE VALUE OF HIS
INVESTMENT IN CAPITAL SHARES  ... .  A CORPORATION AND ITS STOCKHOLDERS
ARE GENERALLY TO BE TREATED AS SEPARATE ENTITIES."  A SIMILAR CASE,
DALTON V. BOWERS, 287 U.S. 404, DECIDED THE SAME DAY, APPLIED THE SAME
PRINCIPLES.  (FN8) 

A FEW YEARS LATER, THE SAME PROBLEM AROSE IN ANOTHER CONTEXT.  A
TAXPAYER WITH LARGE AND DIVERSIFIED INVESTMENT HOLDINGS, INCLUDING A
SUBSTANTIAL BUT NOT CONTROLLING INTEREST IN THE DU PONT COMPANY,
OBTAINED A BLOCK OF STOCK OF THAT CORPORATION FOR DISTRIBUTION TO ITS
OFFICERS IN ORDER TO INCREASE THEIR MANAGEMENT EFFICIENCY.  THE
TAXPAYER, AS A RESULT, BECAME OBLIGATED TO REFUND THE ANNUAL DIVIDENDS
AND TAXES THEREON AND THESE AMOUNTS HE SOUGHT TO DEDUCT AS ORDINARY AND
NECESSARY EXPENSES PAID OR INCURRED IN THE CARRYING ON OF A TRADE OR
BUSINESS PURSUANT TO SEC. 23(A) OF THE REVENUE ACT OF 1928.  THE COURT,
DEPUTY V. DU PONT, 308 U.S. 488 (1940), ASSUMING ARGUENDO THAT THE
TAXPAYER'S ACTIVITIES IN INVESTING AND MANAGING HIS ESTATE WERE A TRADE
OR BUSINESS, NEVERTHELESS DENIED THE DEDUCTION BECAUSE THE TRANSACTIONS
"HAD THEIR ORIGIN IN AN EFFORT BY THAT COMPANY TO INCREASE THE
EFFICIENCY OF ITS MANAGEMENT" AND "AROSE OUT OF TRANSACTIONS WHICH WERE
INTENDED TO PRESERVE HIS INVESTMENT IN THE CORPORATION  ...  .  THE
WELL ESTABLISHED DECISIONS OF THIS COURT DO NOT PERMIT ANY SUCH
BLENDING OF THE CORPORATION'S BUSINESS WITH THE BUSINESS OF ITS
STOCKHOLDERS."  308 U.S., AT 494.  RELIANCE WAS PLACED UPON BURNET V.
CLARK AND DALTON V. BOWERS, SUPRA. 

THE QUESTION ASSUMED IN DU PONT WAS SQUARELY UP FOR DECISION IN
HIGGINS V. COMMISSIONER, 312 U.S. 212 (1941).  HERE THE TAXPAYER
DEVOTED HIS TIME AND ENERGIES TO MANAGING A SIZABLE PORTFOLIO OF
SECURITIES AND SOUGHT TO DEDUCT HIS EXPENSES INCIDENT THERETO AS
INCURRED IN A TRADE OR BUSINESS UNDER SEC. 23(A).  THE BOARD OF TAX
APPEALS, THE COURT OF APPEALS FOR THE SECOND CIRCUIT AND THIS COURT
HELD THAT THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH TAXPAYER'S
ACTIVITIES AS THOSE OF CARRYING ON A TRADE OR BUSINESS.  "THE
PETITIONER MERELY KEPT RECORDS AND COLLECTED INTEREST AND DIVIDENDS
FROM HIS SECURITIES, THROUGH MANAGERIAL ATTENTION FOR HIS INVESTMENTS. 
NO MATTER HOW LARGE THE ESTATE OR HOW CONTINUOUS OR EXTENDED THE WORK
REQUIRED MAY BE, SUCH FACTS ARE NOT SUFFICIENT AS A MATTER OF LAW TO
PERMIT THE COURTS TO REVERSE THE DECISION OF THE BOARD."  312 U.S., AT
218. 

SUCH WAS THE STATE OF THE CASES IN THIS COURT WHEN CONGRESS, IN 1942,
AMENDED THE INTERNAL REVENUE CODE IN RESPECTS CRUCIAL TO THIS CASE.  IN
RESPONSE TO THE HIGGINS CASE AND TO GIVE RELIEF TO HIGGINS-TYPE
TAXPAYERS, SEE H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 46, SEC. 23(A)
WAS AMENDED NOT BY DISTURBING THE COURT'S DEFINITION OF "TRADE OR
BUSINESS" BUT BY FOLLOWING THE PATTERN THAT HAD BEEN ESTABLISHED SINCE
1916 OF "ENLARGING THE CATEGORY OF INCOMES WITH REFERENCE TO WHICH
EXPENSES WERE DEDUCTIBLE," MCDONALD V. COMMISSIONER, 323 U.S. 57, 62;
UNITED STATES V. GILMORE, 372 U.S. 39, 45, TO INCLUDE EXPENSES INCURRED
IN THE PRODUCTION OF INCOME. 

AT THE SAME TIME, TO REMEDY WHAT IT DEEMED THE ABUSES OF PERMITTING
ANY WORTHLESS DEBT TO BE FULLY DEDUCTED, AS WAS THE CASE PRIOR TO THIS
TIME, SEE H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 45, CONGRESS
RESTRICTED THE FULL DEDUCTION UNDER SEC. 23(K) TO BAD DEBTS INCURRED IN
THE TAXPAYER'S TRADE OR BUSINESS (FN9) AND PROVIDED THAT "NONBUSINESS"
BAD DEBTS WERE TO BE DEDUCTED AS SHORT-TERM CAPITAL LOSSES.  CONGRESS
DELIBERATELY USED THE WORDS "TRADE OR BUSINESS," TERMINOLOGY FAMILIAR
TO THE TAX LAWS, AND THE RESPECTIVE COMMITTEES MADE IT CLEAR THAT THE
TEST OF WHETHER A DEBT IS INCURRED IN A TRADE OR BUSINESS "IS
SUBSTANTIALLY THE SAME AS THAT WHICH IS MADE FOR THE PURPOSE OF
ASCERTAINING WHETHER A LOSS FROM THE TYPE OF TRANSACTION COVERED BY
THAT SECTION."  H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 76-77; S. REP.
NO. 1631, 77TH CONG., 2D SESS. 90.  SECTION 23(E)(1), OF COURSE, WAS A
SUCCESSOR TO THE OLD SEC. 5 OF THE REVENUE ACT OF 1916 UNDER WHICH IT
HAD LONG BEEN THE RULE TO DISTINGUISH BETWEEN ACTIVITIES IN A TRADE OR
BUSINESS AND THOSE UNDERTAKEN FOR PROFIT.  THE UPSHOT WAS THAT CONGRESS
BROADENED SEC. 23(A) TO REACH INCOME PRODUCING ACTIVITIES NOT AMOUNTING
TO A TRADE OR BUSINESS AND CONVERSELY NARROWED SEC. 23(K) TO EXCLUDE
BAD DEBTS ARISING FROM THESE SAME SOURCES. 

THE 1942 AMENDMENTS OF SEC. 23(K), THEREFORE, AS THE COURT HAS
ALREADY NOTED, PUTNAM V. COMMISSIONER, 352 U.S. 82, 90-92, WAS INTENDED
TO ACCOMPLISH FAR MORE THAN TO DENY FULL DEDUCTIBILITY TO THE WORTHLESS
DEBTS OF FAMILY AND FRIENDS.  IT WAS DESIGNED TO MAKE FULL
DEDUCTIBILITY OF A BAD DEBT TURN UPON ITS PROXIMATE CONNECTION WITH
ACTIVITIES WHICH THE TAX LAWS RECOGNIZED AS A TRADE OR BUSINESS, A
CONCEPT WHICH FALLS FAR SHORT OF REACHING EVERY INCOME OR PROFIT MAKING
ACTIVITY. 

                           II. 

PETITIONER, THEREFORE, MUST DEMONSTRATE THAT HE IS ENGAGED IN A TRADE
OR BUSINESS, AND LYING AT THE HEART OF HIS CLAIM IS THE ISSUE UPON
WHICH THE LOWER COURTS HAVE DIVIDED AND WHICH BROUGHT THE CASE HERE:
THAT WHERE A TAXPAYER FURNISHES REGULAR SERVICES TO ONE OR MANY
CORPORATIONS, AN INDEPENDENT TRADE OR BUSINESS OF THE TAXPAYER HAS BEEN
SHOWN.  BUT AGAINST THE BACKGROUND OF THE 1942 AMENDMENTS AND THE
DECISIONS OF THIS COURT IN THE DALTON, BURNET, DU PONT AND HIGGINS
CASES, PETITIONER'S CLAIM MUST BE REJECTED. 

DEVOTING ONE'S TIME AND ENERGIES TO THE AFFAIRS OF A CORPORATION IS
NOT OF ITSELF, AND WITHOUT MORE, A TRADE OR BUSINESS OF THE PERSON SO
ENGAGED.  THOUGH SUCH ACTIVITIES MAY PRODUCE INCOME, PROFIT OR GAIN IN
THE FORM OF DIVIDENDS OR ENHANCEMENT IN THE VALUE OF AN INVESTMENT,
THIS RETURN IS DISTINCTIVE TO THE PROCESS OF INVESTING AND IS GENERATED
BY THE SUCCESSFUL OPERATION OF THE CORPORATION'S BUSINESS AS
DISTINGUISHED FROM THE TRADE OR BUSINESS OF THE TAXPAYER HIMSELF.  WHEN
THE ONLY RETURN IS THAT OF AN INVESTOR, THE TAXPAYER HAS NOT SATISFIED
HIS BURDEN OF DEMONSTRATING THAT HE IS ENGAGED IN A TRADE OR BUSINESS
SINCE INVESTING IS NOT A TRADE OR BUSINESS AND THE RETURN TO THE
TAXPAYER, THOUGH SUBSTANTIALLY THE PRODUCT OF HIS SERVICES, LEGALLY
ARISES NOT FROM HIS OWN TRADE OR BUSINESS BUT FROM THAT OF THE
CORPORATION.  EVEN IF THE TAXPAYER DEMONSTRATES AN INDEPENDENT TRADE OR
BUSINESS OF HIS OWN, CARE MUST BE TAKEN TO DISTINGUISH BAD DEBT LOSSES
ARISING FROM HIS OWN BUSINESS AND THOSE ACTUALLY ARISING FROM
ACTIVITIES PECULIAR TO AN INVESTOR CONCERNED WITH, AND PARTICIPATING
IN, THE CONDUCT OF THE CORPORATE BUSINESS. 

IF FULL-TIME SERVICE TO ONE CORPORATION DOES NOT ALONE AMOUNT TO A
TRADE OR BUSINESS, WHICH IT DOES NOT, IT IS DIFFICULT TO UNDERSTAND HOW
THE SAME SERVICE TO MANY CORPORATIONS WOULD SUFFICE.  TO BE SURE, THE
PRESENCE OF MORE THAN ONE CORPORATION MIGHT LEND SUPPORT TO A FINDING
THAT THE TAXPAYER WAS ENGAGED IN A REGULAR COURSE OF PROMOTING
CORPORATIONS FOR A FEE OR COMMISSION, SEE BALLANTINE, CORPORATIONS
(REV. ED. 1946), 102, OR FOR A PROFIT ON THEIR SALE, SEE GIBLIN V.
COMMISSIONER, 227 F.2D 692 (C.A. 5TH CIR.), BUT IN SUCH CASES THERE IS
COMPENSATION OTHER THAN THE NORMAL INVESTOR'S RETURN, INCOME RECEIVED
DIRECTLY FOR HIS OWN SERVICES RATHER THAN INDIRECTLY THROUGH THE
CORPORATE ENTERPRISE, AND THE PRINCIPLES OF BURNET, DALTON, DU PONT AND
HIGGINS ARE THEREFORE NOT OFFENDED.  ON THE OTHER HAND, SINCE THE TAX
COURT FOUND, AND THE PETITIONER DOES NOT DISPUTE, THAT THERE WAS NO
INTENTION HERE OF DEVELOPING THE CORPORATIONS AS GOING BUSINESSES FOR
SALE TO CUSTOMERS IN THE ORDINARY COURSE, THE CASE BEFORE US INEXORABLY
RESTS UPON THE CLAIM THAT ONE WHO ACTIVELY ENGAGES IN SERVING HIS OWN
CORPORATIONS FOR THE PURPOSE OF CREATING FUTURE INCOME THROUGH THOSE
ENTERPRISES IS IN A TRADE OR BUSINESS.  THAT ARGUMENT IS UNTENABLE IN
LIGHT OF BURNET, DALTON, DU PONT AND HIGGINS, AND WE REJECT IT.  (FN10)
ABSENT SUBSTANTIAL ADDITIONAL EVIDENCE, (FN11) FURNISHING MANAGEMENT
AND OTHER SERVICES TO CORPORATIONS FOR A REWARD NOT DIFFERENT FROM THAT
FLOWING TO AN INVESTOR IN THOSE CORPORATIONS IS NOT A TRADE OR BUSINESS
UNDER SEC. 23(K)(4).  WE ARE, THEREFORE, FULLY IN AGREEMENT WITH THIS
ASPECT OF THE DECISION BELOW. 

                           III. 

WITH RESPECT TO THE OTHER CLAIMS BY PETITIONER, WE ARE UNWILLING TO
DISTURB THE DETERMINATIONS OF THE TAX COURT, AFFIRMED BY THE COURT OF
APPEALS, THAT PETITIONER WAS NOT ENGAGED IN THE BUSINESS OF MONEY
LENDING, OF FINANCING CORPORATIONS, OF BOTTLING SOFT DRINKS OR OF ANY
COMBINATION OF THESE SINCE WE CANNOT SAY THEY ARE CLEARLY ERRONEOUS. 
SEE COMMISSIONER V. DUBERSTEIN, 363 U.S. 278, 289-291.  NOR NEED WE
CONSIDER OR DEAL WITH THOSE CASES WHICH HOLD THAT WORKING AS A
CORPORATE EXECUTIVE FOR A SALARY MAY BE A TRADE OR BUSINESS.  E.G.,
TRENT V. COMMISSIONER, 291 F.2D 669 (C.A.2D CIR.).  (FN12)  PETITIONER
MADE NO SUCH CLAIM IN EITHER THE TAX COURT OR THE COURT OF APPEALS AND,
IN ANY EVENT, THE CONTENTION WOULD BE GROUNDLESS ON THIS RECORD SINCE
IT WAS NOT SHOWN THAT HE HAS COLLECTED A SALARY FROM MISSION ORANGE OR
THAT HE WAS OWED ONE.  MOREOVER, THERE IS NO PROOF (WHICH MIGHT BE
DIFFICULT TO FURNISH WHERE THE TAXPAYER IS THE SOLE OR DOMINANT
STOCKHOLDER) THAT THE LOAN WAS NECESSARY TO KEEP HIS JOB OR WAS
OTHERWISE PROXIMATELY RELATED TO MAINTAINING HIS TRADE OR BUSINESS AS
AN EMPLOYEE.  COMPARE TRENT V. COMMISSIONER, SUPRA. 

WE ARE MORE CONCERNED, HOWEVER, WITH THE EVIDENCE AS TO PETITIONER'S
POSITION AS THE OWNER AND LESSOR OF THE REAL ESTATE AND BOTTLING PLANT
IN WHICH MISSION ORANGE DID BUSINESS.  THE UNITED STATES DOES NOT
DISPUTE THE FACT THAT IN THIS REGARD PETITIONER WAS ENGAGED IN A TRADE
OR BUSINESS (FN13) BUT ARGUES THAT THE LOSS FROM THE WORTHLESS DEBT WAS
NOT PROXIMATELY RELATED TO PETITIONER'S REAL ESTATE BUSINESS.  WHILE
THE TAX COURT AND THE COURT OF APPEALS DEALT SEPARATELY WITH ASSERTIONS
RELATING TO OTHER PHASES OF PETITIONER'S CASE, WE DO NOT FIND THAT
EITHER COURT DISPOSED OF THE POSSIBILITY THAT THE LOAN TO MISSION
ORANGE, A TENANT OF PETITIONER, WAS INCURRED IN PETITIONER'S BUSINESS
OF BEING A LANDLORD.  WE TAKE NO POSITION WHATSOEVER ON THE MERITS OF
THIS MATTER BUT REMAND THE CASE FOR FURTHER PROCEEDINGS IN THE TAX
COURT.  VACATED AND REMANDED. 

FN1  THE 1954 CODE PROVISION, SEC. 166, IS SUBSTANTIALLY IDENTICAL TO
THAT IN THE 1939 CODE WITH RESPECT TO THE PROBLEM HERE.  PRECEDING THE
ENACTMENT OF THE 1954 CODE, THERE WERE STATEMENTS FROM WITNESSES URGING
AN EXPRESS PROVISION FOR THE FULL BAD DEBT DEDUCTION IN CIRCUMSTANCES
SUCH AS THESE TO OVERTURN CONTRARY LOWER COURT DECISIONS LIKE
COMMISSIONER V. SMITH, 203 F.2D 310 (C.A.2D CIR.), HEARINGS BEFORE THE
HOUSE COMMITTEE ON WAYS AND MEANS ON FORTY TOPICS PERTAINING TO THE
GENERAL REVISION OF THE INTERNAL REVENUE CODE, 83D CONG., 1ST SESS.
(PT. 3), 1519-1525, AND BILLS INTRODUCED FOR THAT PURPOSE, H.R.  3165
AND H.R. 4853, 83D CONG., 1ST SESS.  THE PROVISION FINALLY ENACTED,
HOWEVER, WAS ONE WITHOUT THESE SUGGESTED MODIFICATIONS. 

FN2  IN GENERAL, SHORT-TERM CAPITAL LOSSES ARE DEDUCTIBLE ONLY TO THE
EXTENT OF THE GAINS FROM THE SALE OR EXCHANGE OF CAPITAL ASSETS, PLUS
THE TAXABLE INCOME OF THE TAXPAYER OR $1,000, WHICHEVER IS SMALLER. 
SEC. 117(D)(2).  SEE ALSO SEC. 1211(B), 1954 CODE. 

FN3  THIS CORPORATION OWNED A FRANCHISE TO DISTRIBUTE MASON ROOT BEER
WHICH PETITIONER BOTTLED AT THE MISSION ORANGE PLANT IN LUBBOCK.  MASON
ROOT BEER FAILED IN 1953 AND PETITIONER'S RETURN FOR THAT YEAR, THE
SAME ONE AS INVOLVED IN THIS SUIT, REFLECTS A $3,300 LOSS ON THE STOCK
AND A $53.33 NONBUSINESS BAD DEBT FROM THAT CORPORATION. 

FN4  AT THE TIME MISSION ORANGE WAS ORGANIZED PETITIONER WAS ISSUED
88% OF THE OUTSTANDING SHARES.   THE CHARTER WAS AMENDED IN DECEMBER OF
1952 TO AUTHORIZE ADDITIONAL CAPITAL STOCK WHICH, WHEN SUBSEQUENTLY
ISSUED, REDUCED HIS INTEREST IN THE CORPORATION TO 77%.  SOMETIME
BEFORE THE END OF 1953, PETITIONER INCREASED HIS HOLDINGS TO ABOUT
79.5% OF THE OUTSTANDING SHARES. 

FN5  HE COLLECTED INTEREST TOTALING $1,680.15 IN 1951, $2,285.35 IN
1952 AND $1,747.59 IN 1953; RENTAL INCOME OF $15,570.78 IN 1952 AND
$12,225.19 IN 1953; AND SALARIES TOTALING $29,400 FOR 1952 AND $33,450
FOR 1953. 

FN6  SEE NOTE 10, INFRA. 

FN7  THE LOWER COURT RELIED IN PART UPON THE TEST OF TRADE OR
BUSINESS ANNOUNCED IN WASHBURN V. COMMISSIONER, 51 F.2D 949, 953: 

"A PARTY MAY HAVE INVESTMENTS IN CORPORATE STOCK, HAVE NO PARTICULAR
OCCUPATION, AND LIVE ON THE RETURN OF HIS INVESTMENTS.  THAT WOULD NOT
CONSTITUTE BUSINESS UNDER THE STATUTE IN QUESTION.  HE MAY, HOWEVER,
TAKE SUCH AN ACTIVE PART IN THE MANAGEMENT OF THE ENTERPRISE IN WHICH
HE HAS INVESTMENTS AS TO AMOUNT TO THE CARRYING ON OF A BUSINESS." 

FN8  DALTON V. BOWERS INVOLVED A TAXPAYER, OWNING ALL THE STOCK OF
THE DEBTOR CORPORATION, WHO ARGUED THAT HIS TRADE OR BUSINESS WAS
CARRYING ON A COMPREHENSIVE ENTERPRISE OF EXPLOITING HIS OWN INVENTIONS
THROUGH CORPORATIONS ORGANIZED FOR LIMITED PURPOSES AND THAT THESE
PERSONAL ACTIVITIES TRANSCENDED THE SEPARATE CORPORATE ENTITIES.  AS IN
BURNET, HOWEVER, THESE CONTENTIONS WERE REJECTED. 

"HE TREATED HIS CORPORATION AS SOMETHING APART FROM HIS ORDINARY
AFFAIRS, ACCEPTED CREDITS FOR SALARIES AS AN OFFICER, CLAIMED LOSS TO
HIMSELF BECAUSE OF LOANS TO IT WHICH HAD BECOME WORTHLESS, AND CAUSED
IT TO MAKE RETURNS FOR TAXATION DISTINCT FROM HIS OWN.  NOTHING
INDICATES THAT HE REGARDED THE CORPORATION AS HIS AGENT WITH AUTHORITY
TO CONTRACT OR ACT IN HIS BEHALF.  OWNERSHIP OF ALL THE STOCK IS NOT
ENOUGH TO SHOW THAT CREATION AND MANAGEMENT OF THE CORPORATION WAS A
PART OF HIS ORDINARY BUSINESS.  CERTAINLY, UNDER THE GENERAL RULE FOR
TAX PURPOSES A CORPORATION IS AN ENTITY DISTINCT FROM ITS STOCKHOLDERS
...  ."  287 U.S., AT 410. 

FN9  "THE CHARACTER OF THE DEBT FOR THIS PURPOSE IS NOT CONTROLLED BY
THE CIRCUMSTANCES ATTENDING ITS CREATION OR ITS SUBSEQUENT ACQUISITION
BY THE TAXPAYER OR BY THE USE TO WHICH THE BORROWED FUNDS ARE PUT BY
THE RECIPIENT, BUT IS TO BE DETERMINED RATHER BY THE RELATION WHICH THE
LOSS RESULTING FROM THE DEBT'S BECOMING WORTHLESS BEARS TO THE TRADE OR
BUSINESS OF THE TAXPAYER.  IF THAT RELATION IS A PROXIMATE ONE IN THE
CONDUCT OF THE TRADE OR BUSINESS IN WHICH THE TAXPAYER IS ENGAGED AT
THE TIME THE DEBT BECOMES WORTHLESS, THE DEBT IS NOT A NONBUSINESS DEBT
FOR THE PURPOSES OF THIS AMENDMENT."  H.R. REP.  NO. 2333, 77TH CONG.,
2D SESS. 77; S. REP. NO. 1631, 77TH CONG., 2D SESS. 90.  TREASURY
REGULATIONS 118, SEC. 39.23(K)-6(B), ADOPTS SUBSTANTIALLY THIS LANGUAGE
OF THE COMMITTEE REPORTS AS THE TEST TO BE APPLIED UNDER SEC. 23(K). 

FN10  TO THE EXTENT THAT THEY HOLD OR CONTAIN STATEMENTS TO THE
CONTRARY, WE DISAPPROVE OF SUCH CASES AS MAYTAG V. UNITED STATES, 153
CT. CL. 622, 289 F.2D 647; MAYS V. COMMISSIONER, 272 F.2D 788 (C.A. 6TH
CIR.); COMMISSIONER V. STOKES' ESTATE, 200 F.2D 637 (C.A. 3D CIR.);
FOSS V. COMMISSIONER, 75 F.2D 326 (C.A. 1ST CIR.); WASHBURN V.
COMMISSIONER, 51 F.2D 949 (C.A. 8TH CIR.); SAGE V. COMMISSIONER, 15
T.C. 299; CAMPBELL V. COMMISSIONER, 11 T.C. 510; AND CLUETT V.
COMMISSIONER, 8 T.C. 1178. 

FN11  COMPARE MALONEY V. SPENCER, 172 F.2D 638 (C.A. 9TH CIR.), AND
DORMINEY V. COMMISSIONER, 26 T.C. 940. 

FN12  SEE UNDER SEC. 122 (NET OPERATING LOSS CARRY-OVER) FOLKER V.
JOHNSON, 230 F.2D 906 (C.A.2D CIR.); OVERLY V. COMMISSIONER, 243 F.2D
576 (C.A.3D CIR.); BATZELL V. COMMISSIONER, 266 F.2D 371 (C.A. 4TH
CIR.); ROBERTS V. COMMISSIONER, 258 F.2D 634 (C.A. 5TH CIR.); PIERCE V.
UNITED STATES, 254 F.2D 885 (C.A. 9TH CIR.).  BUT CF., MCGINN V.
COMMISSIONER, 76 F.2D 680 (C.A. 9TH CIR.); HUGHES V. COMMISSIONER, 38
F.2D 755 (C.A. 10TH CIR.).  SEE UNDER SEC. 23(A)(1) (ORDINARY AND
NECESSARY EXPENSES OF TRADE OR BUSINESS) SCHMIDLAPP V. COMMISSIONER, 96
F.2D 680 (C.A.2D CIR.); NOLAND V. COMMISSIONER, 269 F.2D 108, 111 (C.A.
4TH CIR.). 

FN13  ALTHOUGH PETITIONER RECEIVED NO RENTAL PAYMENTS FROM MISSION
ORANGE, THERE WAS RENT OWING TO HIM UNDER THE 10-YEAR-LEASE AGREEMENT. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :























GUTIERREZ V. WATERMAN STEAMSHIP CORP. 373 U.S. 206 


NO. 229.  ARGUED MARCH 21, 1963.  - DECIDED MAY 13, 1963.  - 301 F.2D
415, REVERSED AND CAUSE REMANDED. 


WHILE UNLOADING A SHIP DOCKED AT A PUERTO RICAN PORT, A LONGSHOREMAN
SUFFERED PERSONAL INJURIES WHEN HE SLIPPED ON SOME LOOSE BEANS SPILLED
ON THE DOCK FROM BROKEN AND DEFECTIVE BAGS BEING UNLOADED FROM THE
SHIP.  HE FILED A LIBEL IN ADMIRALTY AGAINST THE SHIP, CLAIMING DAMAGES
FOR INJURIES CAUSED BY THE SHIP'S UNSEAWORTHINESS AND BY THE NEGLIGENCE
OF ITS OWNER.  HELD: 

1.  THE CASE WAS WITHIN THE MARITIME JURISDICTION UNDER THE EXTENSION
OF ADMIRALTY JURISDICTION ACT, SINCE IT WAS ALLEGED THAT THE SHIPOWNER
COMMITTED A TORT WHILE OR BEFORE THE SHIP WAS BEING UNLOADED AND THE
IMPACT WAS FELT ASHORE AT A TIME AND PLACE NOT REMOTE FROM THE WRONGFUL
ACT.  PP. 209-210. 

2.  THIS COURT SUSTAINS THE FINDING OF THE TRIAL COURT THAT THE
SHIPOWNER WAS NEGLIGENT IN ALLOWING THE BEANS TO BE UNLOADED IN THEIR
DEFECTIVE BAGGING, WHEN IT KNEW OR SHOULD HAVE KNOWN THAT INJURY WAS
LIKELY TO RESULT TO PERSONS HAVING TO WORK ABOUT THE BEANS THAT MIGHT,
AND DID, SPILL, AND THAT THE SHIPOWNER WAS LIABLE TO THE LONGSHOREMAN
FOR INJURIES RESULTING FROM SUCH NEGLIGENCE, IRRESPECTIVE OF ITS
ALLEGED LACK OF CONTROL OF THE IMPACT ZONE.  PP. 210-212. 

3.  WHEN A SHIPOWNER ACCEPTS CARGO IN A FAULTY CONTAINER OR ALLOWS A
CONTAINER TO BECOME FAULTY, HE ASSUMES RESPONSIBILITY FOR INJURIES THAT
THIS MAY CAUSE TO SEAMEN OR THEIR SUBSTITUTES ON OR ABOUT THE SHIP;
THESE LEAKY BEAN BAGS WERE UNFIT AND THUS UNSEAWORTHY.  PP. 212-214. 

4.  THE DUTY TO PROVIDE A SEAWORTHY SHIP AND GEAR, INCLUDING CARGO
CONTAINERS, APPLIES TO LONGSHOREMEN UNLOADING THE SHIP, WHETHER THEY
ARE STANDING ABOARD SHIP OR ON THE PIER.  PP. 214-215. 

5.  ALTHOUGH THE LONGSHOREMAN FILED HIS LIBEL OVER A YEAR AFTER
EXPIRATION OF THE ANALOGOUS PUERTO RICAN STATUTE OF LIMITATIONS, THE
FINDING OF THE TRIAL COURT THAT NO PREJUDICE TO THE SHIPOWNER WAS
OCCASIONED BY THE DELAY AND THAT THE LONGSHOREMAN'S CLAIM THEREFORE WAS
NOT BARRED BY LACHES IS SUSTAINED, AS NOT PLAINLY ERRONEOUS.  PP.  215
216. 

GUTIERREZ V. WATERMAN STEAMSHIP CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A LONGSHOREMAN UNLOADING THE S.S. HASTINGS AT PONCE,
PUERTO RICO, SLIPPED ON SOME LOOSE BEANS SPILLED ON THE DOCK AND
SUFFERED PERSONAL INJURIES.  HE SUBSEQUENTLY FILED A LIBEL AGAINST THE
HASTINGS, CLAIMING DAMAGES FOR INJURIES CAUSED BY THE SHIP'S
UNSEAWORTHINESS AND BY THE NEGLIGENCE OF ITS OWNER, THE RESPONDENT
CORPORATION.  THE CASE WAS TRIED IN ADMIRALTY BEFORE THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO, AND THE COURT FOUND THE
FOLLOWING FACTS RELEVANT IN THE PRESENT POSTURE OF THE CASE.  193 F.
SUPP. 894. 

THE CARGO OF BEANS WAS PACKED IN BROKEN AND DEFECTIVE BAGS, SOME OF
WHICH WERE BEING REPAIRED BY COOPERS ABOARD THE SHIP DURING UNLOADING. 
BEANS SPILLED OUT OF THE BAGS DURING UNLOADING, INCLUDING SOME FROM ONE
BAG WHICH BROKE OPEN DURING UNLOADING, AND THE SCATTERING OF BEANS
ABOUT THE SURFACE OF THE PIER CREATED A DANGEROUS CONDITION FOR THE
LONGSHOREMEN WHO HAD TO WORK THERE.  THE SHIPOWNER KNEW OR SHOULD HAVE
KNOWN THAT INJURY WAS LIKELY TO RESULT TO PERSONS WHO WOULD HAVE TO
WORK AROUND THE BEANS SPILLED FROM THE DEFECTIVE BAGS, AND IT WAS
NEGLIGENT IN ALLOWING CARGO SO POORLY STOWED OR LADEN TO BE UNLOADED. 
PETITIONER FELL ON THE BEANS AND INJURED HIMSELF, AND SUCH INJURIES
WERE PROXIMATELY CAUSED BY THE RESPONDENT'S NEGLIGENCE AND THE
UNSEAWORTHINESS OF ITS CARGO OR CARGO CONTAINERS. 

ALTHOUGH PETITIONER FILED HIS LIBEL OVER A YEAR AFTER THE ANALOGOUS
PUERTO RICAN STATUTE OF LIMITATIONS RAN, (FN1) THE COURT FOUND THAT THE
DELAY WAS EXCUSABLE AND THAT NO PREJUDICE TO RESPONDENT WAS OCCASIONED
BY THE DELAY, SINCE IT HAD ACCESS AT ALL TIMES TO ITS AND THE
STEVEDORE'S (FN2) RECORDS WHICH CONTAINED THE RELEVANT FACTS AND SINCE
ALL THE POTENTIAL WITNESSES WERE AVAILABLE AND PRODUCED AT TRIAL. 
ACCORDINGLY, THE TRIAL COURT ENTERED A MONEY JUDGMENT OF SOME $18,000
FOR PETITIONER. 

RESPONDENT APPEALED TO THE UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT, WHICH REVERSED WITH DIRECTIONS TO DISMISS THE ACTION. 
301 F.2D 415.  IT HELD THAT RESPONDENT HAD NOT BEEN NEGLIGENT, AS A
MATTER OF LAW, BECAUSE IT "HAD NEITHER CONTROL OF NOR EVEN A RIGHT TO
CONTROL" THE PIER.  THE COURT ALSO STATED THAT PETITIONER DID NOT PROVE
WHAT PARTICULAR BEANS HE SLIPPED ON, AND THAT THE ONES RESPONSIBLE FOR
HIS FALL MIGHT HAVE COME FROM A BAG THAT "FOR ALL THAT APPEARS" MAY
HAVE BEEN DROPPED AND BROKEN OPEN DUE TO SOME THIRD PARTY'S
NEGLIGENCE.  AS FOR SEAWORTHINESS, THE COURT HELD THAT THE SHIPOWNER
WAS NOT RESPONSIBLE FOR THE LADING, OR CARGO CONTAINERS, STATING: "THE
VERY FACT THAT UNSEAWORTHINESS OBLIGATIONS ARE 'AWESOME'  ...  SUGGESTS
THAT THEY SHOULD NOT BE HANDLED WITH PRODIGALITY.  WE ARE UNWILLING TO
RECOGNIZE ONE HERE."  FINALLY, IT REVERSED THE CONCLUSION BELOW AS TO
LACHES, SINCE THE AVAILABILITY TO RESPONDENT OF THE WITNESSES WHEN THE
LIBEL WAS FILED WAS NOT AS ADVANTAGEOUS TO IT AS WOULD HAVE BEEN AN
OPPORTUNITY TO EXAMINE THEM AT AN EARLIER DATE.  THAT THIS WAS
PREJUDICIAL, THE COURT CONCLUDED, WAS SHOWN BY THE FACT THAT THE
WITNESSES' TESTIMONY WAS AT VARIANCE WITH RESPONDENT'S RECORDS OF THE
SHIP'S UNLOADING.  PETITIONER SOUGHT CERTIORARI FROM THIS ADVERSE
JUDGMENT AND WE BROUGHT THE CASE HERE, 371 U.S. 810, TO RESOLVE THE
APPARENTLY TROUBLESOME QUESTION AS TO THE SHIPOWNER'S LIABILITY FOR HIS
TORTS WHICH HAVE IMPACTS ON SHORE.  WE HAVE CONCLUDED THAT THE JUDGMENT
OF THE COURT OF APPEALS MUST BE REVERSED WITH RESPECT TO EACH OF THE
THREE HEADINGS INVOLVED. 

                                     I. 

AT THE OUTSET WE ARE MET WITH AN ISSUE WHICH IS SAID TO BE
JURISDICTIONAL.  COUNSEL FOR RESPONDENT CANDIDLY ADMITS FAILURE TO
RAISE THE POINT BELOW, BUT AS IS OUR PRACTICE WE WILL CONSIDER THIS
THRESHOLD QUESTION BEFORE REACHING THE MERITS.  MCGRATH V. KRISTENSEN,
340 U.S. 162, 167-168; FORD MOTOR CO. V. TREASURY DEPT., 323 U.S. 459,
467; MATSON NAV. CO. V. UNITED STATES, 284 U.S. 352, 359 (ADMIRALTY
CASE); GRACE V. AMERICAN INS. CO., 109 U.S. 278, 283; HOPE INS. CO. V.
BOARDMAN, 5 CRANCH 57; SEE WHEELDIN V. WHEELER, 371 U.S. 812; BROWN
SHOE CO. V. UNITED STATES, 370 U.S. 294, 305-306. 

RESPONDENT CONTENDS THAT IT IS NOT LIABLE, AT LEAST IN ADMIRALTY,
BECAUSE THE IMPACT OF ITS ALLEGED LACK OF CARE OR UNSEAWORTHINESS WAS
FELT ON THE PIER RATHER THAN ABOARD SHIP.  WHATEVER VALIDITY THIS
PROPOSITION MAY HAVE HAD UNTIL 1948, THE PASSAGE OF THE EXTENSION OF
ADMIRALTY JURISDICTION ACT, 62 STAT. 496, 46 U.S.C. SEC. 740, SWEPT IT
AWAY WHEN IT MADE VESSELS ON NAVIGABLE WATER LIABLE FOR DAMAGE OR
INJURY "NOTWITHSTANDING THAT SUCH DAMAGE OR INJURY BE DONE OR
CONSUMMATED ON LAND."  RESPONDENT AND THE CARRIER AMICI CURIAE WOULD
HAVE THE STATUTE LIMITED TO INJURIES ACTUALLY CAUSED BY THE PHYSICAL
AGENCY OF THE VESSEL OR A PARTICULAR PART OF IT - SUCH AS WHEN THE SHIP
RAMS A BRIDGE OR WHEN ITS DEFECTIVE WINCH DROPS SOME CARGO ONTO A
LONGSHOREMAN.  CF. STRIKA V. NETHERLANDS MINISTRY OF TRAFFIC, 185 F.2D
555 (C.A.2D CIR.); HAGANS V. FARRELL LINES, 237 F.2D 477 (C.A.3D CIR.).
NOTHING IN THE LEGISLATIVE HISTORY SUPPORTS SO RESTRICTIVE AN
INTERPRETATION OF THE STATUTORY LANGUAGE.  THERE IS NO DISTINCTION IN
ADMIRALTY BETWEEN TORTS COMMITTED BY THE SHIP ITSELF AND BY THE SHIP'S
PERSONNEL WHILE OPERATING IT, ANY MORE THAN THERE IS BETWEEN TORTS
"COMMITTED" BY A CORPORATION AND BY ITS EMPLOYEES.  AND SHIPS ARE
LIBELED AS READILY FOR AN UNDULY BELLICOSE MATE'S ASSAULT ON A CREWMAN,
SEE BOUDOIN V. LYKES BROS. CO., 348 U.S. 336, 339-340; THE ROLPH, 299
F. 52 (C.A. 9TH CIR.), OR FOR HAVING AN INCOMPETENT CREW OR MASTER, SEE
KEEN V. OVERSEAS TANKSHIP CORP., 194 F.2D 515, 517 (C.A.2D CIR.), AS
FOR A COLLISION.  VARIOUS FAR-FETCHED HYPOTHETICALS ARE RAISED, SUCH AS
A SUIT IN ADMIRALTY FOR AN ORDINARY AUTOMOBILE ACCIDENT INVOLVING A
SHIP'S OFFICER ON SHIP BUSINESS IN PORT, OR FOR SOMEONE'S SLIPPING ON
BEANS THAT CONTINUE TO LEAK FROM THESE BAGS IN A WAREHOUSE IN DENVER. 
WE THINK IT SUFFICIENT FOR THE NEEDS OF THIS OCCASION TO HOLD THAT THE
CASE IS WITHIN THE MARITIME JURISDICTION UNDER 46 U.S.C.  SEC. 740
WHEN, AS HERE, IT IS ALLEGED THAT THE SHIPOWNER COMMITS A TORT (FN3)
WHILE OR BEFORE THE SHIP IS BEING UNLOADED, AND THE IMPACT OF WHICH IS
FELT ASHORE AT A TIME AND PLACE NOT REMOTE FROM THE WRONGFUL ACT. 

                                       II. 

AS INDICATED, SUPRA, THE TRIAL COURT FOUND RESPONDENT NEGLIGENT IN
ALLOWING THE BEANS TO BE UNLOADED IN THEIR DEFECTIVE BAGGING, WHEN IT
KNEW OR SHOULD HAVE KNOWN THAT INJURY WAS LIKELY TO RESULT TO PERSONS
HAVING TO WORK ABOUT THE BEANS THAT MIGHT, AND DID, SPILL.  THERE WAS
SUBSTANTIAL EVIDENCE TO SUPPORT THESE FINDINGS.  WITNESSES TESTIFIED
THAT BEANS SPILLED OUT OF BROKEN BAGS THROUGHOUT UNLOADING, AND THIS IS
CORROBORATED BY RESPONDENT'S RECORDS OF THE UNLOADING, WHICH STATED
THAT BAGS OF BEANS WERE FOUND TORN AT THE TIME OF DISCHARGING AND SOME
OF THEM WERE RECOOPERED.  MOREOVER, THE TRIAL COURT WAS ENTITLED TO
INFER THAT RESPONDENT SHOULD HAVE KNOWN OF THE DEFECTIVE CONDITION OF
THE BAGGING WHEN THE BEAN BAGS WERE LEAKING WHILE STILL IN THE SHIP,
WHEN BEANS SPILLED OUT OF THE BAGS THROUGHOUT UNLOADING, AND WHEN
COOPERS WERE SENT ABOARD TO REPAIR THE TORN BAGGING.  TO BE SURE, THERE
IS SOME CONFLICT BETWEEN DETAILS OF THE TESTIMONY AND RESPONDENT'S
RECORDS OF THE UNLOADING, BUT THE TRIAL COURT WAS ENTITLED TO BELIEVE
THE ONE RATHER THAN THE OTHER.   AS FOR THE POSSIBILITY THAT THE BEANS
PETITIONER SLIPPED ON MAY HAVE COME FROM SOME OTHER SOURCE, SUCH AS
"FOR ALL THAT APPEARS" A THIRD PARTY, IT IS SUFFICIENT TO NOTE THAT THE
TRIAL COURT WAS NOT PLAINLY ERRONEOUS IN NOT SO BELIEVING. 

THE FORCE OF THESE FACT FINDINGS IS NOT LESSENED BY THE CONTENTION
THAT RESPONDENT DID NOT CONTROL THE PIER OR HAVE "EVEN A RIGHT TO
CONTROL THAT LOCUS," 301 F.2D, AT 416.  WE DOUBT THAT RESPONDENT HAD NO
LICENSE TO GO UPON THE PIER AT WHICH IT WAS DOCKED AND CLEAN UP THE
LOOSE BEANS, IF IT HAD WANTED TO; THE BEANS WERE ITS CARGO THAT IT WAS
UNLOADING ONTO THE PIER.  BUT WE MAY PUT THIS ASIDE, SINCE CONTROL OF
THE IMPACT ZONE IS NOT ESSENTIAL FOR NEGLIGENCE.  THE MAN WHO DROPS A
BARREL OUT OF HIS LOFT NEED NOT CONTROL THE SIDEWALK TO BE LIABLE TO
THE PEDESTRIAN WHOM THE BARREL HITS.  SEE BYRNE V. BOADLE, 2 H.&C. 722
(EXCH.).  AND THE SAME HOLDS FOR THE MAN WHO SPILLS BEANS OUT OF HIS
WINDOW, ON WHICH THE PEDESTRIAN SLIPS.  RESPONDENT ALLOWED THE CARGO TO
BE DISCHARGED IN DANGEROUS AND DEFECTIVE BAGGING, FROM WHICH BEANS WERE
LEAKING BEFORE DISCHARGE OF THE CARGO BEGAN.  IT HAD AN ABSOLUTE AND
NONDELEGABLE DUTY OF CARE TOWARD PETITIONER NOT TO CREATE THIS RISK TO
HIM, WHICH IT FAILED TO MEET.  WHEN THIS LACK OF CARE CULMINATED IN
PETITIONER'S INJURY, RESPONDENT BECAME LEGALLY LIABLE TO COMPENSATE HIM
FOR THE HARM. 

                       III. 

THE TRIAL COURT ALSO FOUND UNSEAWORTHINESS IN THE CONDITION OF THE
BAGGING.  TWO QUESTIONS ARE RAISED IN THIS CONNECTION:  (1) WHETHER THE
USE OF DEFECTIVE CARGO CONTAINERS CONSTITUTES UNSEAWORTHINESS, AND (2)
WHETHER THE SHIPOWNER'S WARRANTY OF SEAWORTHINESS EXTENDS TO
LONGSHOREMEN ON THE PIER WHO ARE UNLOADING THE SHIP'S CARGO. 

THE FIRST QUESTION IS NOT ONE OF FIRST IMPRESSION, FOR IT WAS DECIDED
IN PETITIONER'S FAVOR IN ATLANTIC & GULF STEVEDORES, INC., V. ELLERMAN
LINES, LTD., 369 U.S. 355.  THERE A LONGSHOREMAN WAS INJURED WHEN A
BALE OF BURLAP CLOTH FELL ON HIM BECAUSE THE METAL BANDS WRAPPED ABOUT
THE BALES, CF. COTTON-TIE CO. V. SIMMONS, 106 U.S. 89, BROKE WHILE THE
BALES WERE BEING HOISTED WITH A HOOK AND WINCH.  THE TRIAL COURT
CHARGED THE JURY THAT "IF YOU FIND THAT THE BANDS OF THE BALE WERE
DEFECTIVE, WERE INADEQUATE, OR INSUFFICIENT  ...  THEN YOU MIGHT FIND
THE DEFENDANTS LIABLE UNDER THE DOCTRINE OF UNSEAWORTHINESS."  ID., AT
361, N. 3.  THE CHARGE BECAME CRITICAL IN THE POSTURE OF THE CASE
BEFORE THIS COURT BECAUSE THE COURT OF APPEALS HAD REVERSED THE PORTION
OF THE JUDGMENT IN FAVOR OF THE STEVEDORE ON THE SHIPOWNER'S CLAIM FOR
INDEMNITY BECAUSE BOTH HAD BEEN NEGLIGENT, IN THE COURT OF APPEALS'
VIEW OF THE JURY'S SPECIAL FINDINGS.  THIS COURT REINSTATED THE
ORIGINAL JUDGMENT BECAUSE "THERE IS A VIEW OF THE CASE THAT MAKES THE
JURY'S ANSWERS TO SPECIAL INTERROGATORIES CONSISTENT," NAMELY, ON THE
MATTER COVERED BY THE PROPER CHARGE ON UNSEAWORTHINESS, AND THEREFORE
THE INTERROGATORIES "MUST BE RESOLVED THAT WAY  ...  TO AVOID A
COLLISION WITH THE SEVENTH AMENDMENT."  ID., AT 364.  THAT
UNSEAWORTHINESS COULD BE PREDICATED UPON THE DEFECTIVENESS OF THE METAL
BANDS WRAPPED AROUND AND USED TO CONTAIN THE BURLAP CARGO WAS THUS
ESSENTIAL TO THE DISPOSITION OF THE CASE. 

THE HOLDING IN ELLERMAN IS CONSISTENT WITH EARLIER DECISIONS.  (FN4)
SEAWORTHINESS IS NOT LIMITED, OF COURSE, TO FITNESS FOR TRAVEL ON THE
HIGH SEAS; IT INCLUDES FITNESS FOR LOADING AND UNLOADING.  SEAS
SHIPPING CO. V. SIERACKI, 328 U.S. 85.  IT HAS ALREADY BEEN HELD THAT
WHEN CARGO IS STOWED UNSAFELY IN THE HOLD A LONGSHOREMAN INJURED
THEREBY MAY RECOVER FOR UNSEAWORTHINESS.  E.G., RICH V. ELLERMAN &
BUCKNALL CO., 278 F.2D 704, 706 (C.A.2D CIR.); CURTIS V. A. GARCIA Y
CIA., 241 F.2D 30, 33-34 (C.A.3D CIR.); PALAZZOLO V. PAN-ATLANTIC
CORP., 211 F.2D 277, 279 (C.A.2D CIR.), AFF'D ON OTHER GROUNDS, 350
U.S. 124, 134; SEE MORALES V. CITY OF GALVESTON, 370 U.S. 165, 170
(DICTUM).  (FN5)  AND IN AT LEAST ONE CASE IT HAS BEEN HELD THAT A
LONGSHOREMAN COULD RECOVER FOR INJURIES CAUSED BY A "LATENT DEFECT" IN
A CARGO CRATE WHICH BROKE WHEN THE LONGSHOREMAN STOOD ON IT.  REDDICK
V. MCALLISTER LINE, 258 F.2D 297, 299 (C.A.2D CIR.).

THESE CASES ALL REVEAL A PROPER APPLICATION OF THE SEAWORTHINESS
DOCTRINE, WHICH IS IN ESSENCE THAT THINGS ABOUT A SHIP, WHETHER THE
HULL, THE DECKS, THE MACHINERY, THE TOOLS FURNISHED, THE STOWAGE, OR
THE CARGO CONTAINERS, MUST BE REASONABLY FIT FOR THE PURPOSE FOR WHICH
THEY ARE TO BE USED.  SEE MITCHELL V. TRAWLER RACER, INC., 362 U.S.
539, 550; MORALES V. CITY OF GALVESTON, 370 U.S. 165, 169, 172
(DISSENTING OPINION).  A SHIP THAT LEAKS IS UNSEAWORTHY; SO IS A CARGO
CONTAINER THAT LEAKS.  WHEN THE SHIPOWNER ACCEPTS CARGO IN A FAULTY
CONTAINER OR ALLOWS THE CONTAINER TO BECOME FAULTY, HE ASSUMES THE
RESPONSIBILITY FOR INJURY THAT THIS MAY CAUSE TO SEAMEN OR THEIR
SUBSTITUTES ON OR ABOUT THE SHIP.  BEANS BELONG INSIDE THEIR
CONTAINERS, AND ANYONE SHOULD KNOW, AS THE TRIAL COURT FOUND, THAT
SERIOUS INJURY MAY RESULT IF THEY GET OUT OF THEIR CONTAINERS AND GET
UNDERFOOT.  THESE BEAN BAGS WERE UNFIT AND THUS UNSEAWORTHY. 

THE SECOND QUESTION IS ONE OF FIRST IMPRESSION IN THIS COURT,
ALTHOUGH OTHER FEDERAL COURTS HAVE ALREADY RECOGNIZED THAT THE CASE LAW
COMPELS THIS CONCLUSION.  STRIKA V. NETHERLANDS MINISTRY OF TRAFFIC,
185 F.2D 555 (C.A.2D CIR.); ROBILLARD V. A.L. BURBANK & CO., 186 F.
SUPP. 193 (S.D.N.Y.); SEE POPE & TALBOT, INC., V. CORDRAY, 258 F.2D
214, 218 (C.A. 9TH CIR.).  IN STRIKA, WHILE THE LONGSHOREMAN WAS
WORKING ON THE DOCK, USE OF AN IMPROPER WIRE CABLE CAUSED A HATCH COVER
TO FALL ON HIM.  BUILDING ON SUCH CASES AS O'DONNELL V. GREAT LAKES
CO., 318 U.S. 36, WHERE SEAMEN RECOVERED UNDER THE JONES ACT FOR
INJURIES DUE TO THE OWNER'S NEGLIGENCE DESPITE THEIR BEING ASHORE AT
THE TIME, AND SIERACKI, SUPRA, WHERE LONGSHOREMEN ABOARD SHIP DOING
SEAMEN'S TASKS WERE PERMITTED TO RECOVER FOR UNSEAWORTHINESS, THE COURT
HELD THAT THE TORT OF UNSEAWORTHINESS ARISES OUT OF A MARITIME STATUS
OR RELATION AND IS THEREFORE "COGNIZABLE BY THE MARITIME SUBSTANTIVE
LAW WHETHER IT ARISES ON SEA OR ON LAND."  ACCORDINGLY, THE COURT
PERMITTED RECOVERY FOR UNSEAWORTHINESS.  SEE ALSO HAGANS V. FARRELL
LINES, 237 F.2D 477 (C.A.3D CIR.), WHERE THE POINT WAS ASSUMED IN A
CASE INVOLVING A LONGSHOREMAN ON THE PIER STRUCK WITH SACKS OF BEANS
WHEN A DEFECTIVE WINCH DID NOT BRAKE PROPERLY.    IN ROBILLARD, SUPRA,
A LONGSHOREMAN WAS INJURED WHEN, BECAUSE OF UNSEAWORTHY STOWAGE AND
OVERLADEN DRAFTS, HE WAS STRUCK BY SOME CARGO THAT WAS KNOCKED OFF THE
DECK ONTO THE PIER.  THE COURT FOUND "THE LOGIC OF THESE AUTHORITIES
...  (SIERACKI, STRIKA, ETC.) INELUCTABLE" AND ALLOWED RECOVERY IN
UNSEAWORTHINESS WHILE DENYING IT IN NEGLIGENCE. 

WE AGREE WITH THIS READING OF THE CASE LAW AND HOLD THAT THE DUTY TO
PROVIDE A SEAWORTHY SHIP AND GEAR, INCLUDING CARGO CONTAINERS, APPLIES
TO LONGSHOREMEN UNLOADING THE SHIP WHETHER THEY ARE STANDING ABOARD
SHIP OR ON THE PIER. 

                  IV. 

FINALLY, WE HAVE CONCLUDED THAT THE RULING OF THE TRIAL COURT ON
LACHES IS NOT PLAINLY ERRONEOUS AND SHOULD NOT HAVE BEEN REVERSED.  THE
TEST OF LACHES IS PREJUDICE TO THE OTHER PARTY.  GARDNER V. PANAMA R.
CO., 342 U.S. 29, 30-31; CITIES SERVICE CO. V. PUERTO RICO CO., 305
F.2D 170, 171 (C.A. 1ST CIR.)(BOTH UNREASONABLE DELAY AND CONSEQUENT
PREJUDICE).  THE TRIAL COURT, HAVING HEARD THE WITNESSES TESTIFY,
CONCLUDED THAT THERE WAS NO PREJUDICE.  THE COURT OF APPEALS HAD NO
WARRANT TO REVERSE THIS FINDING AS PLAINLY ERRONEOUS MERELY BECAUSE IN
SOME WAY IT MIGHT HAVE BEEN MORE ADVANTAGEOUS TO RESPONDENT TO QUESTION
THE WITNESSES SOONER THAN IT DID.  (FN6)  NOR CAN PREJUDICE BE INFERRED
FROM A VARIANCE BETWEEN THE WITNESSES' TESTIMONY AND RESPONDENT'S
WRITTEN RECORDS OF THE UNLOADING.  THE TRIAL COURT WHICH HEARD THE
WITNESSES WAS THE PROPER JUDGE OF WHICH EVIDENCE WAS CREDIBLE; THAT
RECORDS DIFFER FROM TESTIMONY HERE DOES NOT MEAN THAT RESPONDENT WAS
PREJUDICED BY DELAY - IT MEANS THAT RESPONDENT WAS "PREJUDICED" BY THE
FACT FINDER'S REFUSAL TO BELIEVE ITS EVIDENCE AND NO MORE. 

THE COURT OF APPEALS ERRED IN SETTING THE JUDGMENT OF THE DISTRICT
COURT ASIDE.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
CASE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  PETITIONER'S INJURY WAS COVERED BY THE PUERTO RICO WORKMEN'S
COMPENSATION ACT, UNDER WHICH SUITS MUST BE INSTITUTED WITHIN A YEAR
FOLLOWING THE DATE OF THE FINAL DECISION IN THE CASE BY THE MANAGER OF
THE STATE INSURANCE FUND.  PUERTO RICO LAWS ANN.  SEC. 11:32. 

FN2  THE STEVEDORE WAS WATERMAN DOCK COMPANY, A WHOLLY OWNED
SUBSIDIARY OF RESPONDENT WATERMAN STEAMSHIP COMPANY. 

FN3  THE QUESTION OF WHETHER THE WARRANTY OF SEAWORTHINESS EXTENDS TO
LONGSHOREMEN ON THE DOCK IS CONSIDERED, INFRA, AT PP. 213-214. 

FN4  THE ELLERMAN CASE WAS CITED WITH APPROVAL IN THE LATER DECISION,
MORALES V. CITY OF GALVESTON, 370 U.S. 165, 170, AND THE MAJORITY OF
THE COURT IN MORALES, WITH ONE EXCEPTION, JOINS THE MAJORITY HERE. 
MORALES, OF COURSE, DID NOT INVOLVE THE UNSEAWORTHINESS OF CARGO
CONTAINERS, BUT RATHER THAT OF A SHIP'S HOLD. 

FN5  BUT SEE CARABELLESE V. NAVIERA AZNAR, S.A., 285 F.2D 355 (C.A.2D
CIR.) (TOP-HEAVY CRATE OF MACHINERY). 

FN6  WE NOTE THAT RESPONDENT ADMITS IN ITS BRIEF THAT "PETITIONER'S
WITNESSES WERE AVAILABLE  ... , THAT THE PAYROLL RECORDS OF THE
STEVEDORE INDICATED THE POTENTIAL EYEWITNESSES, THAT THE ACCIDENT
REPORT FILED BY THE STEVEDORE NAMED THE WITNESSES AND FORMED PART OF
THE RECORD OF THE STATE INSURANCE FUND, THAT RESPONDENT PRODUCED
EVIDENCE INDICATING THE CARGO DAMAGED PRIOR TO AND AT THE TIME OF THE
DISCHARGE, THAT MEDICAL RECORDS INDICATING TREATMENT AND THE NAMES OF
THE TREATING PHYSICIANS WERE AVAILABLE, AND THAT THE RESPONDENT TOOK
PETITIONER'S DEPOSITION AND SUBMITTED INTERROGATORIES  ...  ." 
MOREOVER, THE RECORD INDICATES THAT RESPONDENT NEVER BOTHERED TO
INTERVIEW THE PETITIONER'S WITNESSES ROMAN OR CINTRON BEFORE TRIAL,
DESPITE THE FACT THAT PETITIONER'S ANSWERS TO INTERROGATORIES NAMED
THEM.  AND RESPONDENT DOES NOT CONTRADICT PETITIONER'S CONTENTION THAT
RESPONDENT CHOSE NOT TO INTERVIEW ANY OF THE WITNESSES EVEN THOUGH IT
HAD THEIR NAMES THROUGH DISCOVERY.  IN SUCH CIRCUMSTANCES IT IS HARDLY
APPROPRIATE FOR RESPONDENT TO CLAIM PREJUDICE FOR WANT OF AN
OPPORTUNITY TO INTERVIEW THE WITNESSES SOONER.  IN THIS CONNECTION IT
SHOULD BE NOTED THAT THE ACCIDENT OCCURRED OCTOBER 21, 1956; THE
ANALOGOUS STATUTE OF LIMITATIONS RAN OUT NOVEMBER 30, 1957; THE LIBEL
WAS FILED JANUARY 9, 1959; TRIAL BEGAN MARCH 21, 1960 - SO THAT AS MUCH
TIME ELAPSED BETWEEN FILING THE ACTION AND TRIAL, WHEN RESPONDENT
FAILED TO INTERVIEW THE WITNESSES, AS ELAPSED DURING THE PERIOD OF
ALLEGED LACHES. 

MR. JUSTICE HARLAN DISSENTING. 

THE DECISION IN THIS CASE HAS IMPORTANCE IN ADMIRALTY LAW BEYOND WHAT
MIGHT APPEAR ON THE SURFACE.   IT MARKS ANOTHER SUBSTANTIAL STRIDE
TOWARD THE DEVELOPMENT BY THIS COURT OF A DOCTRINE THAT A SHIPOWNER IS
AN INSURER FOR WHOSE WHO PERFORM ANY WORK ON OR AROUND A SHIP SUBJECT
TO MARITIME JURISDICTION.  WHILE MY PRIMARY DISAGREEMENT WITH THE COURT
GOES TO ITS HOLDING ON UNSEAWORTHINESS, I AM ALSO UNABLE TO AGREE WITH
ITS VIEWS ON THE NEGLIGENCE ISSUE. 

                                I. 

THE SHIPOWNER'S DUTY WITH RESPECT TO SEAWORTHINESS IS A DUTY TO
FURNISH A VESSEL THAT IS REASONABLY FIT FOR ITS INTENDED USE - ONE THAT
IS STAUNCH AND STRONG, THAT IS FITTED OUT WITH ALL PROPER EQUIPMENT AND
IN GOOD ORDER, AND THAT CARRIES A SUFFICIENT AND COMPETENT CREW AND
COMPLEMENT OF OFFICERS.  GILMORE AND BLACK, THE LAW OF ADMIRALTY, 158. 
AS DEVELOPED BY THIS COURT IN CASES INVOLVING INJURY TO SEAMEN AND DOCK
WORKERS, THE DUTY HAS BECOME ABSOLUTE AND HAS BEEN FOUND TO REACH EVEN
TRANSITORY CONDITIONS ARISING AFTER THE OUTSET OF THE VOYAGE.  SEE
MITCHELL V. TRAWLER RACER, INC., 362 U.S. 539.  BUT, EXCEPT FOR THE FEW
UNPERSUASIVE INSTANCES NOTED IN THIS OPINION, THE OBLIGATION HAS
REMAINED ONE RELATING ESSENTIALLY TO THE SHIP AND ITS APPURTENANCES. 
SEE ID., AT 550.  ALTHOUGH THE DOCTRINE HAS BEEN EXTENDED - IN MY VIEW,
QUITE QUESTIONABLY - TO EQUIPMENT BROUGHT ON BOARD BY A STEVEDORE, SEE
ALASKA S.S. CO. V. PETTERSON, 347 U.S. 396, (FN1) THE SHIPOWNER HAS NOT
BEEN DEEMED AN INSURER OF THE CONDITION OF THE CARGO.  HIS DUTY WITH
RESPECT TO CARGO HAS BEEN TO SEE THAT IT IS STOWED IN A MANNER THAT
DOES NOT MAKE THE SHIP ITSELF AN UNSAFE PLACE TO WORK.  SEE, E.G.,
PALAZZOLO V. PAN-ATLANTIC S.S.  CORP., 211 F.2D 277; CURTIS V. A.
GARCIA Y CIA, 241 F.2D 30; RICH V. ELLERMAN & BUCKNALL S.S. CO., 278
F.2D 704; CARABELLESE V. NAVIERA AZNAR, S.A., 285 F.2D 355.  (FN2) 

THE COURT, HOWEVER, HAS CONCLUDED THAT IT IS BOUND BY THE
DETERMINATION LAST TERM, IN ATLANTIC & GULF STEVEDORES, INC., V.
ELLERMAN LINES, LTD., 369 U.S. 355, TO HOLD THAT DEFECTIVE CARGO MAY IN
AND OF ITSELF RENDER THE SHIPOWNER LIABLE FOR UNSEAWORTHINESS.  I MUST
ADMIT THAT SOME LANGUAGE IN THAT CASE (369 U.S., AT 364) DOES APPEAR TO
STAND FOR THIS PROPOSITION.  BUT I THINK IT FAIR TO SUGGEST THAT IT WAS
NEGLIGENCE, NOT UNSEAWORTHINESS, ON WHICH ATTENTION WAS FOCUSED THERE -
INDEED UNSEAWORTHINESS WAS NEITHER BRIEFED NOR ARGUED.  AT ALL EVENTS I
AM FRANK TO SAY THAT IN CONCURRING IN THE RESULT IN THAT CASE,
UNSEAWORTHINESS AS A DISTINCT ISSUE ENTIRELY ELUDED ME, AS IT EVIDENTLY
DID THE DISSENTERS, WHO INTERPRETED THE MAJORITY OPINION AS SUGGESTING
THAT THE JURY'S FINDING WAS PREMISED ON A NEGLIGENT FAILURE TO INSPECT
THE CARGO CONTAINERS.  SEE 369 U.S., AT 365.  MOREOVER, THE CASE CITED
BY THE ELLERMAN COURT IS SUPPORT OF ITS UNSEAWORTHINESS CONCLUSION,
WEYERHAEUSER S.S. CO. V. NACIREMA CO., 355 U.S. 563, DID NOT EVEN TOUCH
UPON SUCH AN ISSUE.  SO CASUAL A DETERMINATION SHOULD NOT BE BLINDLY
ACCEPTED AS FASTENING ON THE LAW OF ADMIRALTY SUCH A FAR-REACHING
INNOVATION.  AT LEAST IT SHOULD NOT PRECLUDE US FROM CONSIDERING THE
QUESTION ANEW WHEN IT IS NOW FULLY AND SQUARELY PRESENTED.  (FN3) 

THE COURT'S DECISION AFTER ELLERMAN, IN MORALES V. CITY OF GALVESTON,
370 U.S. 165, IS THE STRONGEST EVIDENCE THAT ELLERMAN WAS NOT REGARDED
AS ESTABLISHING THE FUNDAMENTAL CHANGE IN THE LAW OF UNSEAWORTHINESS
FOR WHICH IT IS NOW CITED.  IN MORALES, A LONGSHOREMAN WORKING IN THE
HOLD OF A SHIP HAD BEEN INJURED BY THE FUMES EMANATING FROM GRAIN THAT
HAD BEEN IMPROPERLY TREATED WITH AN EXCESSIVE AMOUNT OF A CHEMICAL
INSECTICIDE.  THE GRAIN IN QUESTION HAD BEEN FOUND TO BE
"CONTAMINATED," ALTHOUGH NOT DUE TO THE FAULT OR WITH THE KNOWLEDGE OF
THE CITY OR THE SHIPOWNER, AND THE QUESTION BEFORE THIS COURT WAS
WHETHER THE LONGSHOREMAN COULD RECOVER FOR UNSEAWORTHINESS.  THE COURT
SUSTAINED THE CONCLUSION OF THE LOWER COURTS THAT HE COULD NOT, BECAUSE
UNDER THE CIRCUMSTANCES THE ABSENCE OF A FORCED VENTILATION SYSTEM IN
THE HOLD DID NOT CONSTITUTE UNSEAWORTHINESS. 

"WHAT CAUSED INJURY IN THE PRESENT CASE, HOWEVER, WAS NOT THE SHIP,
ITS APPURTENANCES, OR ITS CREW, BUT THE ISOLATED AND COMPLETELY
UNFORESEEABLE INTRODUCTIONS OF A NOXIOUS AGENT FROM WITHOUT.  THE TRIER
OF THE FACTS RULED, UNDER PROPER CRITERIA, THAT THE GRELMARION (THE
SHIP) WAS NOT IN ANY MANNER UNFIT FOR THE SERVICE TO WHICH SHE WAS TO
BE PUT, AND WE CANNOT SAY THAT HIS DETERMINATION WAS WRONG."  370 U.S.,
AT 171. 

THE CRUCIAL POINT FOR PRESENT PURPOSES IS THAT BOTH THE MAJORITY AND
THE DISSENTING OPINIONS IN MORALES VIEWED THE ISSUE IN TERMS OF THE
UNSEAWORTHINESS OF THE SHIP:  WHETHER OR NOT IT SHOULD HAVE HAD A
FORCED VENTILATION SYSTEM IN THE HOLD.  NOWHERE WAS IT EVEN SUGGESTED
THAT LIABILITY FOR UNSEAWORTHINESS COULD ARISE SOLELY BY VIRTUE OF THE
DEFECTIVE STATE OF THE CARGO ITSELF, EVEN THOUGH ITS CONTAMINATED AND
UNSAFE CONDITION HAD CLEARLY BEEN ESTABLISHED AND WAS NOT IN DISPUTE. 
THUS THE COURT IN MORALES UNANIMOUSLY IGNORED THE POSSIBILITY OF A
DOCTRINE WHICH THE COURT TODAY CONCLUDES WAS SQUARELY ESTABLISHED LESS
THAN THREE MONTHS EARLIER, IN ELLERMAN.  (FN4)

                                  II. 

IN ORDER TO CONCLUDE THAT THE RESPONDENT SHIPOWNER WAS NEGLIGENT IN
THE CIRCUMSTANCES PRESENTED HERE, IT WAS NECESSARY FOR THE TRIER OF
FACT TO FIND THAT THE RESPONDENT KNEW OR SHOULD HAVE KNOWN OF THE
DEFECTIVE CONDITION OF THE BAGS BEING UNLOADED.  IT IS DOUBTFUL THAT
SUCH A FINDING WAS MADE BY THE TRIAL JUDGE IN THIS CASE - THE CLOSEST
HE CAME WAS THE STATEMENT THAT THE SHIPOWNER WAS NEGLIGENT IN
PERMITTING BROKEN AND WEAKENED BAGS TO BE DISCHARGED "WHEN IT KNEW OR
SHOULD HAVE KNOWN THAT INJURY WAS LIKELY TO RESULT."  THIS FINDING
PASSES OVER THE BASIC QUESTION:  WHETHER RESPONDENT HAD NOTICE, OR
CONSTRUCTIVE NOTICE, OF THE CONDITION OF THE BAGS THEMSELVES. 

EVEN ASSUMING FOR PRESENT PURPOSES THAT THE NECESSARY FINDING AS TO
NOTICE WAS MADE, I BELIEVE THAT THE JUDGMENT ON NEGLIGENCE CANNOT BE
SUSTAINED, FOR THERE IS NO EVIDENCE WHATEVER TO SUPPORT SUCH A
FINDING.  THE EVIDENCE IN THE RECORD, INCLUDING THE LANDING REPORT,
RELATES ONLY TO THE STEVEDORE COMPANY'S KNOWLEDGE OF THE CONDITION OF
THE BAGS.  THERE IS NOTHING TO SUGGEST THAT ANY AGENT OR EMPLOYEE OF
THE RESPONDENT WAS OR SHOULD HAVE BEEN IN THE AREA, OR KNEW OR SHOULD
HAVE KNOWN OF THE CONDITION OF THE CARGO AT THE TIME OF UNLOADING. 
(FN5)  AND OF COURSE THERE IS NO BASIS IN LAW FOR CHARGING THE
SHIPOWNER WITH RESPONSIBILITY FOR ANY NEGLIGENCE ON THE PART OF THE
STEVEDORE COMPANY. 

WHETHER FROM THE STANDPOINT OF NEGLIGENCE OR UNSEAWORTHINESS I SEE NO
BASIS FOR THE HOLDING IN THIS CASE.  PRESUMABLY THE RESULT REACHED BY
THE COURT WOULD BE THE SAME - AT LEAST CONSISTENCY DEMANDS THAT IT
SHOULD BE THE SAME - IF THIS ACCIDENT HAD OCCURRED ON THE DOCK WHILE
THE BEANS WERE BEING LOADED RATHER THAN UNLOADED.  YET IN NEITHER CASE
IS THERE WARRANT FOR HOLDING THE SHIPOWNER TO HAVE BREACHED ANY
OBLIGATION, FOR IN NEITHER CASE DOES IT OWN OR CONTROL THE PLACE WHERE
THE ACCIDENT OCCURRED AND IN NEITHER CASE IS THE SHIP'S EQUIPMENT,
PROPERTY, OR CREW IN ANY WAY RESPONSIBLE, WITH OR WITHOUT FAULT, FOR
THE INJURY. 

ACCORDINGLY, I WOULD AFFIRM. 

FN1  A 6-3 UNEXPLICATED PER CURIAM. 

FN2  THE RESULT IN REDDICK V. MCALLISTER LIGHTERAGE LINE, 258 F.2D
297, THE ONLY OTHER COURT OF APPEALS CASE CITED BY THE MAJORITY, IS
CONSISTENT WITH THESE DECISIONS, FOR ALL THREE JUDGES IN REDDICK AGREED
THAT THE FINDING OF UNSEAWORTHINESS COULD BE SUSTAINED ON THE BASIS OF
IMPROPER STOWAGE.  TWO OF THE JUDGES SAID, BUT ONLY ALTERNATIVELY, THAT
THE FINDING COULD "ALSO BE PREDICATED ON THE LATENT DEFECT IN THE CARGO
CRATE."  258 F.2D, AT 299. 

FN3  I DO NOT ATTACH SIGNIFICANCE TO THE FACT THAT IN ELLERMAN THE
COURT WAS ASKED IN A PETITION FOR REHEARING TO RECONSIDER WHETHER CARGO
CAN ITSELF BE UNSEAWORTHY.  PETITIONS FOR REHEARING LIE WITHIN THE
BROAD DISCRETION OF THE COURT AND ARE ALMOST NEVER GRANTED.  INDEED,
THIS PETITION FOR REHEARING SERVES PRINCIPALLY TO UNDERSCORE THE FACT
THAT THE POINT HAD NOT BEEN BRIEFED, ARGUED, OR APPARENTLY EVEN
CONSIDERED BY THE PARTIES AS GERMANE TO THE CASE PRIOR TO ITS
DECISION. 

FN4  THE COURT IN MORALES CITED ELLERMAN, ALONG WITH SEVERAL OTHER
CASES, ONLY FOR THE PROPOSITION THAT A SHIP MIGHT BE UNSEAWORTHY
BECAUSE "THE METHOD OF LOADING HER CARGO, OR THE MANNER OF ITS STOWAGE,
MIGHT BE IMPROPER."  370 U.S., AT 170.  SUCH A PROPOSITION, OF COURSE,
IS WHOLLY DIFFERENT FROM THE ONE FOR WHICH ELLERMAN IS CITED TODAY. 
FN5  THE COOPERS SENT ABOARD WERE EMPLOYED BY THE STEVEDORE COMPANY,
NOT THE STEAMSHIP COMPANY. 
..END :














NATIONAL LABOR RELATIONS BOARD V. ERIE RESISTOR CORP. 373 U.S. 221 


NO. 288.  ARGUED FEBRUARY 18-19, 1963.  - DECIDED MAY 13, 1963.  - 303
F.2D 359, REVERSED AND CAUSE REMANDED. 


EVEN IN THE ABSENCE OF A FINDING OF SPECIFIC ILLEGAL INTENT AND
NOTWITHSTANDING THE EMPLOYER'S CLAIM THAT HIS ACTION WAS NECESSARY TO
CONTINUE HIS OPERATIONS DURING A STRIKE, THE NATIONAL LABOR RELATIONS
BOARD WAS JUSTIFIED IN FINDING THAT IT WAS A VIOLATION OF SEC. 8(A) OF
THE NATIONAL LABOR RELATIONS ACT FOR THE EMPLOYER TO DISCRIMINATE
BETWEEN EMPLOYEES WHO STRUCK AND EMPLOYEES WHO WORKED DURING A STRIKE
BY AWARDING AN ADDITIONAL SENIORITY CREDIT OF 20 YEARS TO REPLACEMENTS
FOR STRIKERS AND ALSO TO STRIKERS WHO RETURNED TO WORK DURING THE
STRIKE, SO THAT, IN A SUBSEQUENT LAYOFF, STRIKERS WHO DID NOT RETURN TO
WORK UNTIL AFTER THE STRIKE TERMINATED WERE LAID OFF AS JUNIOR
EMPLOYEES.  LABOR BOARD V. MACKAY RADIO & TEL. CO., 304 U.S. 333,
DISTINGUISHED.  PP.  221-237. 

NATIONAL LABOR RELATIONS BOARD V. ERIE RESISTOR CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER AN EMPLOYER COMMITS AN UNFAIR LABOR
PRACTICE UNDER SEC. 8(A) (FN1) OF THE NATIONAL LABOR RELATIONS ACT, 61
STAT. 136, 29 U.S.C. SEC. 158, WHEN HE EXTENDS A 20-YEAR SENIORITY
CREDIT TO STRIKE REPLACEMENTS AND STRIKERS WHO LEAVE THE STRIKE AND
RETURN TO WORK.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN THIS
CASE JOINED THE NINTH CIRCUIT, LABOR BOARD V. POTLATCH FORESTS, INC.,
189 F.2D 82 (AND SEE LABOR BOARD V. LEWIN-MATHES, 285 F.2D 329, FROM
THE SEVENTH CIRCUIT), TO HOLD THAT SUCH SUPER-SENIORITY AWARDS ARE NOT
UNLAWFUL ABSENT A SHOWING OF AN ILLEGAL MOTIVE ON THE PART OF THE
EMPLOYER.  303 F.2D 359.  THE SIXTH CIRCUIT, SWARCO, INC., V. LABOR
BOARD, 303 F.2D 668, AND THE NATIONAL LABOR RELATIONS BOARD ARE OF THE
OPINION THAT SUCH CONDUCT CAN BE UNLAWFUL EVEN WHEN THE EMPLOYER
ASSERTS THAT THESE ADDITIONAL BENEFITS ARE NECESSARY TO CONTINUE HIS
OPERATIONS DURING A STRIKE.  TO RESOLVE THESE CONFLICTING VIEWS UPON AN
IMPORTANT QUESTION IN THE ADMINISTRATION OF THE NATIONAL LABOR
RELATIONS ACT, WE BROUGHT THE CASE HERE.  371 U.S. 810. 

ERIE RESISTOR CORPORATION AND LOCAL 613 OF THE INTERNATIONAL UNION OF
ELECTRICAL, RADIO AND MACHINE WORKERS WERE BOUND BY A COLLECTIVE
BARGAINING AGREEMENT WHICH WAS DUE TO EXPIRE ON MARCH 31, 1959.  IN
JANUARY 1959, BOTH PARTIES MET TO NEGOTIATE NEW TERMS BUT, AFTER
EXTENSIVE BARGAINING, THEY WERE UNABLE TO REACH AGREEMENT.  UPON
EXPIRATION OF THE CONTRACT, THE UNION, IN SUPPORT OF ITS CONTRACT
DEMANDS, CALLED A STRIKE WHICH WAS JOINED BY ALL OF THE 478 EMPLOYEES
IN THE UNIT.  (FN2) 

THE COMPANY, UNDER INTENSE COMPETITION AND SUBJECT TO INSISTENT
DEMANDS FROM ITS CUSTOMERS TO MAINTAIN DELIVERIES, DECIDED TO CONTINUE
PRODUCTION OPERATIONS.  TRANSFERRING CLERKS, ENGINEERS AND OTHER
NONUNIT EMPLOYEES TO PRODUCTION JOBS, THE COMPANY MANAGED TO KEEP
PRODUCTION AT ABOUT 15% TO 30% OF NORMAL DURING THE MONTH OF APRIL.  ON
MAY 3, HOWEVER, THE COMPANY NOTIFIED THE UNION MEMBERS THAT IT INTENDED
TO BEGIN HIRING REPLACEMENTS AND THAT STRIKERS WOULD RETAIN THEIR JOBS
UNTIL REPLACED.  THE PLANT WAS LOCATED IN AN AREA CLASSIFIED BY THE
UNITED STATES DEPARTMENT OF LABOR AS ONE OF SEVERE UNEMPLOYMENT AND THE
COMPANY HAD IN FACT RECEIVED APPLICATIONS FOR EMPLOYMENT AS EARLY AS A
WEEK OR TWO AFTER THE STRIKE BEGAN. 

REPLACEMENTS WERE TOLD THAT THEY WOULD NOT BE LAID OFF OR DISCHARGED
AT THE END OF THE STRIKE.  TO IMPLEMENT THAT ASSURANCE, PARTICULARLY IN
VIEW OF THE 450 EMPLOYEES ALREADY LAID OFF ON MARCH 31, THE COMPANY
NOTIFIED THE UNION THAT IT INTENDED TO ACCORD THE REPLACEMENTS SOME
FORM OF SUPER-SENIORITY.  AT REGULAR BARGAINING SESSIONS BETWEEN THE
COMPANY AND UNION, THE UNION MADE IT CLEAR THAT, IN ITS VIEW, NO MATTER
WHAT FORM THE SUPER-SENIORITY PLAN MIGHT TAKE, IT WOULD NECESSARILY
WORK AN ILLEGAL DISCRIMINATION AGAINST THE STRIKERS.  AS NEGOTIATIONS
ADVANCED ON OTHER ISSUES, IT BECAME EVIDENT THAT SUPER-SENIORITY WAS
FAST BECOMING THE FOCAL POINT OF DISAGREEMENT.  ON MAY 28, THE COMPANY
INFORMED THE UNION THAT IT HAD DECIDED TO AWARD 20 YEARS' (FN3)
ADDITIONAL SENIORITY BOTH TO REPLACEMENTS AND TO STRIKERS WHO RETURNED
TO WORK, WHICH WOULD BE AVAILABLE ONLY FOR CREDIT AGAINST FUTURE
LAYOFFS AND WHICH COULD NOT BE USED FOR OTHER EMPLOYEE BENEFITS BASED
ON YEARS OF SERVICE.  THE STRIKERS, AT A UNION MEETING THE NEXT DAY,
UNANIMOUSLY RESOLVED TO CONTINUE STRIKING NOW IN PROTEST AGAINST THE
PROPOSED PLAN AS WELL. 

THE COMPANY MADE ITS FIRST OFFICIAL ANNOUNCEMENT OF THE SUPER
SENIORITY PLAN ON JUNE 10, AND BY JUNE 14, 34 NEW EMPLOYEES, 47
EMPLOYEES RECALLED FROM LAYOFF STATUS AND 23 RETURNING STRIKERS HAD
ACCEPTED PRODUCTION JOBS.  THE UNION, NOW UNDER GREAT PRESSURE, OFFERED
TO GIVE UP SOME OF ITS CONTRACT DEMANDS IF THE COMPANY WOULD ABANDON
SUPER-SENIORITY OR GO TO ARBITRATION ON THE QUESTION, BUT THE COMPANY
REFUSED.  IN THE FOLLOWING WEEK, 64 STRIKERS RETURNED TO WORK AND 21
REPLACEMENTS TOOK JOBS, BRINGING THE TOTAL TO 102 REPLACEMENTS AND
RECALLED WORKERS AND 87 RETURNED STRIKERS.  WHEN THE NUMBER OF
RETURNING STRIKERS WENT UP TO 125 DURING THE FOLLOWING WEEK, THE UNION
CAPITULATED.  A NEW LABOR AGREEMENT ON THE REMAINING ECONOMIC ISSUES
WAS EXECUTED ON JULY 17, AND AN ACCOMPANYING SETTLEMENT AGREEMENT WAS
SIGNED PROVIDING THAT THE COMPANY'S REPLACEMENT AND JOB ASSURANCE
POLICY SHOULD BE RESOLVED BY THE NATIONAL LABOR RELATIONS BOARD AND THE
FEDERAL COURTS BUT WAS TO REMAIN IN EFFECT PENDING FINAL DISPOSITION. 

FOLLOWING THE STRIKE'S TERMINATION, THE COMPANY REINSTATED THOSE
STRIKERS WHOSE JOBS HAD NOT BEEN FILLED (ALL BUT 129 WERE RETURNED TO
THEIR JOBS).  AT ABOUT THE SAME TIME, THE UNION RECEIVED SOME 173
RESIGNATIONS FROM MEMBERSHIP.  BY SEPTEMBER OF 1959, THE PRODUCTION
UNIT WORK FORCE HAD REACHED A HIGH OF 442 EMPLOYEES, BUT BY MAY OF
1960, THE WORK FORCE HAD GRADUALLY SLIPPED BACK TO 240.  MANY EMPLOYEES
LAID OFF DURING THIS CUTBACK PERIOD WERE REINSTATED STRIKERS WHOSE
SENIORITY WAS INSUFFICIENT TO RETAIN THEIR JOBS AS A CONSEQUENCE OF THE
COMPANY'S SUPER-SENIORITY POLICY. 

THE UNION FILED A CHARGE WITH THE NATIONAL LABOR RELATIONS BOARD
ALLEGING THAT AWARDING SUPER-SENIORITY DURING THE COURSE OF THE STRIKE
CONSTITUTED AN UNFAIR LABOR PRACTICE AND THAT THE SUBSEQUENT LAYOFF OF
THE RECALLED STRIKERS PURSUANT TO SUCH A PLAN WAS UNLAWFUL.  THE TRIAL
EXAMINER FOUND THAT THE POLICY WAS PROMULGATED FOR LEGITIMATE ECONOMIC
REASONS, (FN4) NOT FOR ILLEGAL OR DISCRIMINATORY PURPOSES, AND
RECOMMENDED THAT THE UNION'S COMPLAINT BE DISMISSED.  THE BOARD COULD
NOT AGREE WITH THE TRIAL EXAMINER'S CONCLUSION THAT SPECIFIC EVIDENCE
OF SUBJECTIVE INTENT TO DISCRIMINATE AGAINST THE UNION WAS NECESSARY TO
FINDING THAT SUPER-SENIORITY GRANTED DURING A STRIKE IS AN UNFAIR LABOR
PRACTICE.  ITS CONSISTENT VIEW, THE BOARD SAID, HAD ALWAYS BEEN THAT
SUPER-SENIORITY, IN CIRCUMSTANCES SUCH AS THESE, WAS AN UNFAIR LABOR
PRACTICE.  THE BOARD REJECTED THE ARGUMENT THAT SUPER-SENIORITY GRANTED
DURING A STRIKE IS A LEGITIMATE COROLLARY OF THE EMPLOYER'S RIGHT OF
REPLACEMENT UNDER LABOR BOARD V. MACKAY RADIO & TEL. CO., 304 U.S. 333,
AND DETAILED AT SOME LENGTH THE FACTORS WHICH TO IT INDICATED THAT
"SUPERSENIORITY IS A FORM OF DISCRIMINATION EXTENDING FAR BEYOND THE
EMPLOYER'S RIGHT OF REPLACEMENT SANCTIONED BY MACKAY, AND IS, MOREOVER,
IN DIRECT CONFLICT WITH THE EXPRESS PROVISIONS OF THE ACT PROHIBITING
DISCRIMINATION."   HAVING PUT ASIDE MACKAY, THE BOARD WENT ON TO DENY
"THAT SPECIFIC EVIDENCE OF RESPONDENT'S DISCRIMINATORY MOTIVATION IS
REQUIRED TO ESTABLISH THE ALLEGED VIOLATIONS OF THE ACT," RELYING UPON
RADIO OFFICERS V. LABOR BOARD, 347 U.S. 17, REPUBLIC AVIATION CORP. V.
LABOR BOARD, 324 U.S. 793, AND TEAMSTERS LOCAL V. LABOR BOARD, 365 U.S.
667.  MOREOVER, IN THE BOARD'S JUDGMENT, THE EMPLOYER'S INSISTENCE THAT
ITS OVERRIDING PURPOSE IN GRANTING SUPER-SENIORITY WAS TO KEEP ITS
PLANT OPEN AND THAT BUSINESS NECESSITY JUSTIFIED ITS CONDUCT WAS
UNACCEPTABLE SINCE "TO EXCUSE SUCH CONDUCT WOULD GREATLY DIMINISH, IF
NOT DESTROY, THE RIGHT TO STRIKE GUARANTEED BY THE ACT, AND WOULD RUN
DIRECTLY COUNTER TO THE GUARANTEES OF SECTIONS 8(A)(1) AND (3) THAT
EMPLOYEES SHALL NOT BE DISCRIMINATED AGAINST FOR ENGAGING IN PROTECTED
CONCERTED ACTIVITIES."  (FN5)  ACCORDINGLY, THE BOARD DECLINED TO MAKE
FINDINGS AS TO THE SPECIFIC MOTIVATION OF THE PLAN OR ITS BUSINESS
NECESSITY IN THE CIRCUMSTANCES HERE. 

THE COURT OF APPEALS REJECTED AS UNSUPPORTABLE THE RATIONALE OF THE
BOARD THAT A PREFERENTIAL SENIORITY POLICY IS ILLEGAL HOWEVER
MOTIVATED. 

"WE ARE OF THE OPINION THAT INHERENT IN THE RIGHT OF AN EMPLOYER TO
REPLACE STRIKERS DURING A STRIKE IS THE CONCOMITANT RIGHT TO ADOPT A
PREFERENTIAL SENIORITY POLICY WHICH WILL ASSURE THE REPLACEMENTS SOME
FORM OF TENURE, PROVIDED THE POLICY IS ADOPTED SOLELY TO PROTECT AND
CONTINUE THE BUSINESS OF THE EMPLOYER.  WE FIND NOTHING IN THE ACT
WHICH PROSCRIBES SUCH A POLICY.  WHETHER THE POLICY ADOPTED BY THE
COMPANY IN THE INSTANT CASE WAS ILLEGALLY MOTIVATED WE DO NOT DECIDE. 
THE QUESTION IS ONE OF FACT FOR DECISION BY THE BOARD."  303 F.2D, AT
364. 

IT CONSEQUENTLY DENIED THE BOARD'S PETITION FOR ENFORCEMENT AND
REMANDED THE CASE FOR FURTHER FINDINGS. 

WE THINK THE COURT OF APPEALS ERRED IN HOLDING THAT, IN THE ABSENCE
OF A FINDING OF SPECIFIC ILLEGAL INTENT, A LEGITIMATE BUSINESS PURPOSE
IS ALWAYS A DEFENSE TO AN UNFAIR LABOR PRACTICE CHARGE.  CASES IN THIS
COURT DEALING WITH UNFAIR LABOR PRACTICES HAVE RECOGNIZED THE RELEVANCE
AND IMPORTANCE OF SHOWING THE EMPLOYER'S INTENT OR MOTIVE TO
DISCRIMINATE OR TO INTERFERE WITH UNION RIGHTS.  BUT SPECIFIC EVIDENCE
OF SUCH SUBJECTIVE INTENT IS "NOT AN INDISPENSABLE ELEMENT OF PROOF OF
VIOLATION."  RADIO OFFICERS V. LABOR BOARD, 347 U.S. 17, 44.  "SOME
CONDUCT MAY BY ITS VERY NATURE CONTAIN THE IMPLICATIONS OF THE REQUIRED
INTENT; THE NATURAL FORESEEABLE CONSEQUENCES OF CERTAIN ACTION MAY
WARRANT THE INFERENCE  ...  .  THE EXISTENCE OF DISCRIMINATION MAY AT
TIMES BE INFERRED BY THE BOARD, FOR 'IT IS PERMISSIBLE TO DRAW ON
EXPERIENCE IN FACTUAL INQUIRIES.'"  TEAMSTERS LOCAL V. LABOR BOARD, 365
U.S. 667, 675. 

THOUGH THE INTENT NECESSARY FOR AN UNFAIR LABOR PRACTICE MAY BE SHOWN
IN DIFFERENT WAYS, PROVING IT IN ONE MANNER MAY HAVE FAR DIFFERENT
WEIGHT AND FAR DIFFERENT CONSEQUENCES THAN PROVING IT IN ANOTHER.  WHEN
SPECIFIC EVIDENCE OF A SUBJECTIVE INTENT TO DISCRIMINATE OR TO
ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP IS SHOWN, AND FOUND, MANY
OTHERWISE INNOCENT OR AMBIGUOUS ACTIONS WHICH ARE NORMALLY INCIDENT TO
THE CONDUCT OF A BUSINESS MAY, WITHOUT MORE, BE CONVERTED INTO UNFAIR
LABOR PRACTICES.  LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S.
1, 46 (DISCHARGING EMPLOYEES); ASSOCIATED PRESS V. LABOR BOARD, 301
U.S. 103, 132 (DISCHARGING EMPLOYEES); PHELPS DODGE CORP V. LABOR
BOARD, 313 U.S. 177 (HIRING EMPLOYEES).  COMPARE LABOR BOARD V. BROWN
DUNKIN CO., 287 F.2D 17, WITH LABOR BOARD V. HOUSTON CHRONICLE
PUBLISHING CO., 211 F.2D 848 (SUBCONTRACTING UNION WORK); AND FISS
CORP., 43 N.L.R.B. 125, WITH JACOB H. KLOTZ, 13 N.L.R.B. 746 (MOVEMENT
OF PLANT TO ANOTHER TOWN).  SUCH PROOF ITSELF IS NORMALLY SUFFICIENT TO
DESTROY THE EMPLOYER'S CLAIM OF A LEGITIMATE BUSINESS PURPOSE, IF ONE
IS MADE, AND PROVIDES STRONG SUPPORT TO A FINDING THAT THERE IS
INTERFERENCE WITH UNION RIGHTS OR THAT UNION MEMBERSHIP WILL BE
DISCOURAGED.  CONDUCT WHICH ON ITS FACE APPEARS TO SERVE LEGITIMATE
BUSINESS ENDS IN THESE CASES IS WHOLLY IMPEACHED BY THE SHOWING OF AN
INTENT TO ENCROACH UPON PROTECTED RIGHTS.  THE EMPLOYER'S CLAIM OF
LEGITIMACY IS TOTALLY DISPELLED.  (FN6) 

THE OUTCOME MAY WELL BE THE SAME WHEN INTENT IS FOUNDED UPON THE
INHERENTLY DISCRIMINATORY OR DESTRUCTIVE NATURE OF THE CONDUCT ITSELF. 
THE EMPLOYER IN SUCH CASES MUST BE HELD TO INTEND THE VERY CONSEQUENCES
WHICH FORESEEABLY AND INESCAPABLY FLOW FROM HIS ACTIONS AND IF HE FAILS
TO EXPLAIN AWAY, TO JUSTIFY OR TO CHARACTERIZE HIS ACTIONS AS SOMETHING
DIFFERENT THAN THEY APPEAR ON THEIR FACE, AN UNFAIR LABOR PRACTICE
CHARGE IS MADE OUT.  RADIO OFFICERS V. LABOR BOARD, SUPRA.  BUT, AS
OFTEN HAPPENS, THE EMPLOYER MAY COUNTER BY CLAIMING THAT HIS ACTIONS
WERE TAKEN IN THE PURSUIT OF LEGITIMATE BUSINESS ENDS AND THAT HIS
DOMINANT PURPOSE WAS NOT TO DISCRIMINATE OR TO INVADE UNION RIGHTS BUT
TO ACCOMPLISH BUSINESS OBJECTIVES ACCEPTABLE UNDER THE ACT. 
NEVERTHELESS, HIS CONDUCT DOES SPEAK FOR ITSELF - IT IS DISCRIMINATORY
AND IT DOES DISCOURAGE UNION MEMBERSHIP AND WHATEVER THE CLAIMED
OVERRIDING JUSTIFICATION MAY BE, IT CARRIES WITH IT UNAVOIDABLE
CONSEQUENCES WHICH THE EMPLOYER NOT ONLY FORESAW BUT WHICH HE MUST HAVE
INTENDED.  AS IS NOT UNCOMMON IN HUMAN EXPERIENCE, SUCH SITUATIONS
PRESENT A COMPLEX OF MOTIVES AND PREFERRING ONE MOTIVE TO ANOTHER IS IN
REALITY THE FAR MORE DELICATE TASK, REFLECTED IN PART IN DECISIONS OF
THIS COURT, (FN7) OF WEIGHING THE INTERESTS OF EMPLOYEES IN CONCERTED
ACTIVITY AGAINST THE INTEREST OF THE EMPLOYER IN OPERATING HIS BUSINESS
IN A PARTICULAR MANNER AND OF BALANCING IN THE LIGHT OF THE ACT AND ITS
POLICY THE INTENDED CONSEQUENCES UPON EMPLOYEE RIGHTS AGAINST THE
BUSINESS ENDS TO BE SERVED BY THE EMPLOYER'S CONDUCT.  (FN8)  THIS
ESSENTIALLY IS THE TEACHING OF THE COURT'S PRIOR CASES DEALING WITH
THIS PROBLEM AND, IN OUR VIEW, THE BOARD DID NOT DEPART FROM IT. 

THE BOARD MADE A DETAILED ASSESSMENT OF SUPER-SENIORITY AND, TO ITS
EXPERIENCED EYE, SUCH A PLAN HAD THE FOLLOWING CHARACTERISTICS: 

(1)  SUPER-SENIORITY AFFECTS THE TENURE OF ALL STRIKERS WHEREAS
PERMANENT REPLACEMENT, PROPER UNDER MACKAY, AFFECTS ONLY THOSE WHO ARE,
IN ACTUALITY, REPLACED.  IT IS ONE THING TO SAY THAT A STRIKER IS
SUBJECT TO LOSS OF HIS JOB AT THE STRIKE'S END BUT QUITE ANOTHER TO
HOLD THAT IN ADDITION TO THE THREAT OF REPLACEMENT, ALL STRIKERS WILL
AT BEST RETURN TO THEIR JOBS WITH SENIORITY INFERIOR TO THAT OF THE
REPLACEMENTS AND OF THOSE WHO LEFT THE STRIKE.    (2)  A SUPER
SENIORITY AWARD NECESSARILY OPERATES TO THE DETRIMENT OF THOSE WHO
PARTICIPATED IN THE STRIKE AS COMPARED TO NONSTRIKERS. 

(3)  SUPER-SENIORITY MADE AVAILABLE TO STRIKING BARGAINING UNIT
EMPLOYEES AS WELL AS TO NEW EMPLOYEES IS IN EFFECT OFFERING INDIVIDUAL
BENEFITS TO THE STRIKERS TO INDUCE THEM TO ABANDON THE STRIKE. 

(4)  EXTENDING THE BENEFITS OF SUPER-SENIORITY TO STRIKING BARGAINING
UNIT EMPLOYEES AS WELL AS TO NEW REPLACEMENTS DEALS A CRIPPLING BLOW TO
THE STRIKE EFFORT.  AT ONE STROKE, THOSE WITH LOW SENIORITY HAVE THE
OPPORTUNITY TO OBTAIN THE JOB SECURITY WHICH ORDINARILY ONLY LONG YEARS
OF SERVICE CAN BRING, WHILE CONVERSELY, THE ACCUMULATED SENIORITY OF
OLDER EMPLOYEES IS SERIOUSLY DILUTED.  THIS COMBINATION OF THREAT AND
PROMISE COULD BE EXPECTED TO UNDERMINE THE STRIKERS' MUTUAL INTEREST
AND PLACE THE ENTIRE STRIKE EFFORT IN JEOPARDY.  THE HISTORY OF THIS
STRIKE AND ITS VIRTUAL COLLAPSE FOLLOWING THE ANNOUNCEMENT OF THE PLAN
EMPHASIZE THE GRAVE REPERCUSSIONS OF SUPER-SENIORITY. 

(5)  SUPER-SENIORITY RENDERS FUTURE BARGAINING DIFFICULT, IF NOT
IMPOSSIBLE, FOR THE COLLECTIVE BARGAINING REPRESENTATIVE.  UNLIKE THE
REPLACEMENT GRANTED IN MACKAY WHICH CEASES TO BE AN ISSUE ONCE THE
STRIKE IS OVER, THE PLAN HERE CREATES A CLEAVAGE IN THE PLANT
CONTINUING LONG AFTER THE STRIKE IS ENDED.  EMPLOYEES ARE HENCEFORTH
DIVIDED INTO TWO CAMPS:  THOSE WHO STAYED WITH THE UNION AND THOSE WHO
RETURNED BEFORE THE END OF THE STRIKE AND THEREBY GAINED EXTRA
SENIORITY.  THIS BREACH IS RE-EMPHASIZED WITH EACH SUBSEQUENT LAYOFF
AND STANDS AS AN EVER-PRESENT REMINDER OF THE DANGERS CONNECTED WITH
STRIKING AND WITH UNION ACTIVITIES IN GENERAL. 

IN THE LIGHT OF THIS ANALYSIS, SUPER-SENIORITY BY ITS VERY TERMS
OPERATES TO DISCRIMINATE BETWEEN STRIKERS AND NONSTRIKERS, BOTH DURING
AND AFTER A STRIKE, AND ITS DESTRUCTIVE IMPACT UPON THE STRIKE AND
UNION ACTIVITY CANNOT BE DOUBTED.  THE ORIGIN OF THE PLAN, AS
RESPONDENT INSISTS, MAY HAVE BEEN TO KEEP PRODUCTION GOING AND IT MAY
HAVE BEEN NECESSARY TO OFFER SUPER-SENIORITY TO ATTRACT REPLACEMENTS
AND INDUCE UNION MEMBERS TO LEAVE THE STRIKE.  BUT IF THIS IS TRUE,
ACCOMPLISHMENT OF RESPONDENT'S BUSINESS PURPOSE INEXORABLY WAS
CONTINGENT UPON ATTRACTING SUFFICIENT REPLACEMENTS AND STRIKERS BY
OFFERING PREFERENTIAL INDUCEMENTS TO THOSE WHO WORKED AS OPPOSED TO
THOSE WHO STRUCK.  WE THINK THE BOARD WAS ENTITLED TO TREAT THIS CASE
AS INVOLVING CONDUCT WHICH CARRIED ITS OWN INDICIA OF INTENT AND WHICH
IS BARRED BY THE ACT UNLESS SAVED FROM ILLEGALITY BY AN OVERRIDING
BUSINESS PURPOSE JUSTIFYING THE INVASION OF UNION RIGHTS.  THE BOARD
CONCLUDED THAT THE BUSINESS PURPOSE ASSERTED WAS INSUFFICIENT TO
INSULATE THE SUPER-SENIORITY PLAN FROM THE REACH OF SEC. 8(A)(1) AND
SEC. 8(A)(3), AND WE TURN NOW TO A REVIEW OF THAT CONCLUSION. 

THE COURT OF APPEALS AND RESPONDENT RELY UPON MACKAY AS PRECLUDING THE
RESULT REACHED BY THE BOARD BUT WE ARE NOT PERSUADED.  UNDER THE
DECISION IN THAT CASE AN EMPLOYER MAY OPERATE HIS PLANT DURING THE
STRIKE AND AT ITS CONCLUSION NEED NOT DISCHARGE THOSE WHO WORKED DURING
THE STRIKE IN ORDER TO MAKE WAY FOR RETURNING STRIKERS.  IT MAY BE, AS
THE COURT OF APPEALS SAID, THAT "SUCH A REPLACEMENT POLICY IS OBVIOUSLY
DISCRIMINATORY AND MAY TEND TO DISCOURAGE UNION MEMBERSHIP."  BUT
MACKAY DID NOT DEAL WITH SUPER-SENIORITY, WITH ITS EFFECTS UPON ALL
STRIKERS, WHETHER REPLACED OR NOT, OR WITH ITS POWERFUL IMPACT UPON A
STRIKE ITSELF.  BECAUSE THE EMPLOYER'S INTEREST MUST BE DEEMED TO
OUTWEIGH THE DAMAGE TO CONCERTED ACTIVITIES CAUSED BY PERMANENTLY
REPLACING STRIKERS DOES NOT MEAN IT ALSO OUTWEIGHS THE FAR GREATER
ENCROACHMENT RESULTING FROM SUPER-SENIORITY IN ADDITION TO PERMANENT
REPLACEMENT. 

WE HAVE NO INTENTION OF QUESTIONING THE CONTINUING VITALITY OF THE
MACKAY RULE, BUT WE ARE NOT PREPARED TO EXTEND IT TO THE SITUATION WE
HAVE HERE.  TO DO SO WOULD REQUIRE US TO SET ASIDE THE BOARD'S
CONSIDERED JUDGMENT THAT THE ACT AND ITS UNDERLYING POLICY REQUIRE, IN
THE PRESENT CONTEXT, GIVING MORE WEIGHT TO THE HARM WROUGHT BY SUPER
SENIORITY THAN TO THE INTEREST OF THE EMPLOYER IN OPERATING ITS PLANT
DURING THE STRIKE BY UTILIZING THIS PARTICULAR MEANS OF ATTRACTING
REPLACEMENTS.   WE FIND NOTHING IN THE ACT OR ITS LEGISLATIVE HISTORY
TO INDICATE THAT SUPER-SENIORITY IS NECESSARILY AN ACCEPTABLE METHOD OF
RESISTING THE ECONOMIC IMPACT OF A STRIKE, NOR DO WE FIND ANYTHING
INCONSISTENT WITH THE RESULT WHICH THE BOARD REACHED.  ON THE CONTRARY,
THESE SOURCES ARE WHOLLY CONSISTENT WITH, AND LEND FULL SUPPORT TO, THE
CONCLUSION OF THE BOARD. 

INTERFERENCE THE RIGHTS OF EMPLOYEES TO ENGAGE IN CONCERTED ACTIVITIES,
WHICH, AS CONGRESS HAD INDICATED, H.R. REP. NO. 245, 80TH CONG., 1ST
SESS. 26, INCLUDE THE RIGHT TO STRIKE.  UNDER SEC. 8(A)(3), IT IS
UNLAWFUL FOR AN EMPLOYER BY DISCRIMINATION IN TERMS OF EMPLOYMENT TO
DISCOURAGE "MEMBERSHIP IN ANY LABOR ORGANIZATION," WHICH INCLUDES
DISCOURAGING PARTICIPATION IN CONCERTED ACTIVITIES, RADIO OFFICERS V.
LABOR BOARD, 347 U.S. 17, 39-40, SUCH AS A LEGITIMATE STRIKE.  LABOR
BOARD V. WHEELING PIPE LINE, INC., 229 F.2D 391; REPUBLIC STEEL CORP.
V. LABOR BOARD, 114 F.2D 820.  SECTION 13 (FN10) MAKES CLEAR THAT
ALTHOUGH THE STRIKE WEAPON IS NOT AN UNQUALIFIED RIGHT, NOTHING IN THE
ACT EXCEPT AS SPECIFICALLY PROVIDED IS TO BE CONSTRUED TO INTERFERE
WITH THIS MEANS OF REDRESS, H.R. CONF.  REP. NO. 510, 80TH CONG., 1ST
SESS. 59, AND SEC. 2(3) (FN11) PRESERVES TO STRIKERS THEIR UNFILLED
POSITIONS AND STATUS AS EMPLOYEES DURING THE PENDENCY OF A STRIKE.  S.
REP. NO. 573, 74TH CONG., 1ST SESS. 6.  (FN12)  THIS REPEATED
SOLICITUDE FOR THE RIGHT TO STRIKE IS PREDICATED UPON THE CONCLUSION
THAT A STRIKE WHEN LEGITIMATELY EMPLOYED IS AN ECONOMIC WEAPON WHICH IN
GREAT MEASURE IMPLEMENTS AND SUPPORTS THE PRINCIPLES OF THE COLLECTIVE
BARGAINING SYSTEM.  (FN13) 

WHILE CONGRESS HAS FROM TIME TO TIME REVAMPED AND REDIRECTED NATIONAL
LABOR POLICY, ITS CONCERN FOR THE INTEGRITY OF THE STRIKE WEAPON HAS
REMAINED CONSTANT.  THUS WHEN CONGRESS CHOSE TO QUALIFY THE USE OF THE
STRIKE, IT DID SO BY PRESCRIBING THE LIMITS AND CONDITIONS OF THE
ABRIDGMENT IN EXACTING DETAIL, E.G., SECS. 8(B)(4), 8(D), BY INDICATING
THE PRECISE PROCEDURES TO BE FOLLOWED IN EFFECTING THE INTERFERENCE,
E.G., SEC. 10(J), (K), (L); SECS. 206-210, LABOR MANAGEMENT RELATIONS
ACT, AND BY PRESERVING THE POSITIVE COMMAND OF SEC. 13 THAT THE RIGHT
TO STRIKE IS TO BE GIVEN A GENEROUS INTERPRETATION WITHIN THE SCOPE OF
THE LABOR ACT.  THE COURTS HAVE LIKEWISE REPEATEDLY RECOGNIZED AND
EFFECTUATED THE STRONG INTEREST OF FEDERAL LABOR POLICY IN THE
LEGITIMATE USE OF THE STRIKE.  AUTOMOBILE WORKERS V. O'BRIEN, 339 U.S.
454; AMALGAMATED ASSN. OF ELEC.  RY. EMPLOYEES V. WISCONSIN EMPLOYMENT
REL. BD., 340 U.S. 383; LABOR BOARD V. REMINGTON RAND, INC., 130 F.2D
919; CUSANO V. LABOR BOARD, 190 F.2D 898; CF. SINCLAIR REF. CO. V.
ATKINSON, 370 U.S. 195. 

ACCORDINGLY, IN VIEW OF THE DEFERENCE PAID THE STRIKE WEAPON BY THE
FEDERAL LABOR LAWS AND THE DEVASTATING CONSEQUENCES UPON IT WHICH THE
BOARD FOUND WAS AND WOULD BE PRECIPITATED BY RESPONDENT'S INHERENTLY
DISCRIMINATORY SUPER-SENIORITY PLAN, WE CANNOT SAY THE BOARD ERRED IN
THE BALANCE WHICH IT STRUCK HERE.  ALTHOUGH THE BOARD'S DECISIONS ARE
BY NO MEANS IMMUNE FROM ATTACK IN THE COURTS AS CASES IN THIS COURT
AMPLY ILLUSTRATE, E.G., LABOR BOARD V. BABCOCK & WILCOX CO., 351 U.S.
105; LABOR BOARD V. UNITED STEELWORKERS, 357 U.S. 357; LABOR BOARD V.
INSURANCE AGENTS, 361 U.S. 477, ITS FINDINGS HERE ARE SUPPORTED BY
SUBSTANTIAL EVIDENCE, UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S.
474, ITS EXPLICATION IS NOT INADEQUATE, IRRATIONAL OR ARBITRARY,
COMPARE PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 196-197; LABOR
BOARD V. UNITED STEELWORKERS, SUPRA, AND IT DID NOT EXCEED ITS POWERS
OR VENTURE INTO AN AREA BARRED BY THE STATUTE.  COMPARE LABOR BOARD V.
INSURANCE AGENTS, SUPRA.  THE MATTER BEFORE THE BOARD LAY WELL WITHIN
THE MAINSTREAM OF ITS DUTIES.  IT WAS ATTEMPTING TO DEAL WITH AN ISSUE
WHICH CONGRESS HAD PLACED IN ITS HANDS AND "WHERE CONGRESS HAS IN THE
STATUTE GIVEN THE BOARD A QUESTION TO ANSWER, THE COURTS WILL GIVE
RESPECT TO THAT ANSWER."  LABOR BOARD V. INSURANCE AGENTS, SUPRA, AT
499.  HERE, AS IN OTHER CASES, WE MUST RECOGNIZE THE BOARD'S SPECIAL
FUNCTION OF APPLYING THE GENERAL PROVISIONS OF THE ACT TO COMPLEXITIES
OF INDUSTRIAL LIFE, REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S.
793, 798; PHELPS DODGE CORP. V. LABOR BOARD, SUPRA, AT 194, AND OF
"APPRAISING CAREFULLY THE INTERESTS OF BOTH SIDES OF ANY LABOR
MANAGEMENT CONTROVERSY IN THE DIVERSE CIRCUMSTANCES OF PARTICULAR
CASES" FROM ITS SPECIAL UNDERSTANDING OF "THE ACTUALITIES OF INDUSTRIAL
RELATIONS."  LABOR BOARD V. UNITED STEELWORKERS, SUPRA, AT 362-363. 
"THE ULTIMATE PROBLEM IS THE BALANCING OF THE CONFLICTING LEGITIMATE
INTERESTS.  THE FUNCTION OF STRIKING THAT BALANCE TO EFFECTUATE
NATIONAL LABOR POLICY IS OFTEN A DIFFICULT AND DELICATE RESPONSIBILITY,
WHICH THE CONGRESS COMMITTED PRIMARILY TO THE NATIONAL LABOR RELATIONS
BOARD, SUBJECT TO LIMITED JUDICIAL REVIEW."  LABOR BOARD V. TRUCK
DRIVERS UNION, 353 U.S. 87, 96. 

CONSEQUENTLY, BECAUSE THE BOARD'S JUDGMENT WAS THAT THE CLAIMED
BUSINESS PURPOSE WOULD NOT OUTWEIGH THE NECESSARY HARM TO EMPLOYEE
RIGHTS - A JUDGMENT WHICH WE SUSTAIN - IT COULD PROPERLY PUT ASIDE
EVIDENCE OF RESPONSDENT'S MOTIVE AND DECLINE TO FIND WHETHER THE
CONDUCT WAS OR WAS NOT PROMPTED BY THE CLAIMED BUSINESS PURPOSE.  WE
REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE TO
THAT COURT SINCE ITS REVIEW WAS A LIMITED ONE AND IT MUST NOW REACH THE
REMAINING QUESTIONS BEFORE IT, INCLUDING THE PROPRIETY OF THE REMEDY
WHICH AT LEAST IN PART TURNS UPON THE BOARD'S CONSTRUCTION OF THE
SETTLEMENT AGREEMENT AS BEING NO BARRIER TO AN AWARD NOT ONLY OF
REINSTATEMENT BUT OF BACK PAY AS WELL.  (FN14)  REVERSED AND REMANDED. 

FN1  "SEC.  8(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 7. 

     *         *     *         *         * 

"(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; ...  . 

     *         *         *         *       * 

"(5)  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A)." 

FN2  IN ADDITION TO THESE EMPLOYEES, 450 EMPLOYEES IN THE UNIT WERE
ON LAYOFF STATUS. 

FN3  THE FIGURE OF 20 YEARS WAS DEVELOPED FROM A PROJECTION, ON THE
BASIS OF EXPECTED ORDERS, OF WHAT THE COMPANY'S WORK FORCE WOULD BE
FOLLOWING THE STRIKE.  AS OF MARCH 31, THE BEGINNING OF THE STRIKE, A
MALE EMPLOYEE NEEDED SEVEN YEARS' SENIORITY TO AVOID LAYOFF AND A
FEMALE EMPLOYEE NINE YEARS'. 

FN4  THE EXAMINER HAD RELIED UPON THE COMPANY'S EMPLOYMENT RECORDS
FOR HIS CONCLUSION THAT THE REPLACEMENT PROGRAM WAS INEFFECTIVE UNTIL
THE ANNOUNCEMENT OF THE SUPER-SENIORITY AWARDS.  THE GENERAL COUNSEL,
TO SHOW THAT SUCH A PLAN WAS NOT NECESSARY FOR THAT PURPOSE, POINTED TO
THE FACTS THAT THE COMPANY HAD 300 UNPROCESSED JOB APPLICATIONS WHEN
THE STRIKE ENDED, THAT THE COMPANY DECLARED TO THE UNION THAT IT COULD
HAVE REPLACED ALL THE STRIKERS AND THAT THE COMPANY DID NOT COMMUNICATE
ITS OTHERWISE WELL-PUBLICIZED POLICY TO REPLACEMENTS BEFORE THEY WERE
HIRED BUT ONLY AFTER THEY ACCEPTED JOBS. 

FN5  IN ADDITION, THE BOARD HELD THAT CONTINUED INSISTENCE ON THIS OR
A SIMILAR PROPOSAL AS A CONDITION TO NEGOTIATING AN AGREEMENT
CONSTITUTED A REFUSAL TO BARGAIN IN GOOD FAITH UNDER SEC. 8(A)(5).  SEE
LABOR BOARD V. WOOSTER DIVISION OF BORG-WARNER, 356 U.S. 342. 

THE BOARD ALSO CONCLUDED THAT ON MAY 29, WHEN THE UNION VOTED TO
CONTINUE STRIKING IN PROTEST AGAINST THE SUPER-SENIORITY PLAN, THE
STRIKE WAS CONVERTED INTO AN UNFAIR LABOR PRACTICE STRIKE.  ALL
STRIKERS NOT REPLACED AT THAT DATE, THE BOARD HELD, WERE ENTITLED TO
REINSTATEMENT AS OF THE DATE OF THE UNCONDITIONAL ABANDONMENT OF THE
STRIKE REGARDLESS OF REPLACEMENTS.  SEE LABOR BOARD V. PECHEUR LOZENGE
CO., 209 F.2D 393. 

FN6  ACCORDINGLY, THOSE CASES HOLDING UNLAWFUL A SUPER-SENIORITY PLAN
PROMPTED BY A DESIRE ON THE PART OF THE EMPLOYER TO PENALIZE OR
DISCRIMINATE AGAINST STRIKING EMPLOYEES, BALLAS EGG PRODUCTS V. LABOR
BOARD, 283 F.2D 871; LABOR BOARD V. CALIFORNIA DATE GROWERS ASSN., 259
F.2D 587; OLIN MATHIESON CHEM.  CORP.  V. LABOR BOARD, 232 F.2D 158,
AFF'D PER CURIAM, 352 U.S. 1020, ARE EXPLAINABLE WITHOUT REACHING THE
CONSIDERATIONS PRESENT HERE. 

FN7  SEE, E.G., LABOR BOARD V. MACKAY RADIO & TEL. CO., 304 U.S. 333;
REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793; LABOR BOARD V.
BABCOCK & WILCOX CO., 351 U.S. 105; LABOR BOARD V. TRUCK DRIVERS UNION,
353 U.S. 87. 

FN8  IN A VARIETY OF SITUATIONS, THE LOWER COURTS HAVE DEALT WITH AND
REJECTED THE APPROACH URGED HERE THAT CONDUCT OTHERWISE UNLAWFUL IS
AUTOMATICALLY EXCUSED UPON A SHOWING THAT IT WAS MOTIVATED BY BUSINESS
EXIGENCIES.  THUS, IT HAS BEEN HELD THAT AN EMPLOYER CANNOT JUSTIFY THE
DISCRIMINATORY DISCHARGE OF UNION MEMBERS UPON THE GROUND THAT SUCH
CONDUCT IS THE ONLY WAY TO INDUCE A RIVAL UNION TO REMOVE A PICKET LINE
AND PERMIT THE RESUMPTION OF BUSINESS, LABOR BOARD V. STAR PUBLISHING
CO., 97 F.2D 465, OR REARRANGE THE BARGAINING UNIT BECAUSE OF AN
EXPECTED ADVERSE EFFECT ON PRODUCTION, ALLIS-CHALMERS MFG. CO. V. LABOR
BOARD, 162 F.2D 435, OR DEFEND A REFUSAL TO BARGAIN IN GOOD FAITH ON
THE GROUND THAT UNLESS THE EMPLOYER'S VIEW PREVAILS DIRE CONSEQUENCES
TO THE BUSINESS WILL FOLLOW, LABOR BOARD V. HARRIS, 200 F.2D 656, OR
REFUSE EXCLUSIVE RECOGNITION TO A UNION FOR FEAR THAT SUCH RECOGNITION
WILL BRING REPRISALS FROM RIVAL UNIONS, MCQUAY-NORRIS MFG. CO. V. LABOR
BOARD, 116 F.2D 748, CERT. DENIED, 313 U.S. 565; LABOR BOARD V.
NATIONAL BROADCASTING CO., 150 F.2D 895, OR DISCRIMINATE IN HIS
BUSINESS OPERATIONS AGAINST EMPLOYEES OF RIVAL UNIONS OR WITHOUT UNION
AFFILIATION SOLELY IN ORDER TO KEEP PEACE IN THE PLANT AND AVOID
DISRUPTION OF BUSINESS, WILSON & CO., INC., V. LABOR BOARD, 123 F.2D
411; LABOR BOARD V. HUDSON MOTOR CAR CO., 128 F.2D 528; LABOR BOARD V.
GLUEK BREWING CO., 144 F.2D 847; LABOR BOARD V. OERTEL BREWING CO., 197
F.2D 59; LABOR BOARD V. MCCATRON, 216 F.2D 212, CERT. DENIED, 348 U.S.
943; LABOR BOARD V. RICHARDS, 265 F.2D 855.  SEE ALSO IDAHO POTATO
GROWERS V. LABOR BOARD, 144 F.2D 295; CUSANO V. LABOR BOARD, 190 F.2D
898; LABOR BOARD V. INDUSTRIAL COTTON MILLS, 208 F.2D 87, CERT. DENIED,
347 U.S. 935.  INDEED, MANY EMPLOYERS DOUBTLESS COULD CONSCIENTIOUSLY
ASSERT THAT THEIR UNFAIR LABOR PRACTICES WERE NOT MALICIOUS BUT WERE
PROMPTED BY THEIR BEST JUDGEMENT AS TO THE INTERESTS OF THEIR
BUSINESS.  SUCH GOOD-FAITH MOTIVE ITSELF, HOWEVER, HAS NOT BEEN DEEMED
AN ABSOLUTE DEFENSE TO AN UNFAIR LABOR PRACTICE CHARGE. 

FN9  "EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM,
JOIN, OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)." 

FN10  "NOTHING IN THIS ACT, EXCEPT AS SPECIFICALLY PROVIDED FOR
HEREIN, SHALL BE CONSTRUED SO AS EITHER TO INTERFERE WITH OR IMPEDE OR
DIMINISH IN ANY WAY THE RIGHT TO STRIKE, OR TO AFFECT THE LIMITATIONS
OR QUALIFICATIONS ON THAT RIGHT." 

FN11  "THE TERM 'EMPLOYEE'  ...  SHALL INCLUDE ANY INDIVIDUAL WHOSE
WORK HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY CURRENT
LABOR DISPUTE OR BECAUSE OF ANY UNFAIR LABOR PRACTICE, AND WHO HAS NOT
OBTAINED ANY OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT  ...
." 

FN12  THIS CONCERN FOR THE MAINTENANCE OF THE STATUS PREVAILING
BEFORE THE STRIKE HAS HAD ITS MOST RECENT MANIFESTATION IN THE 1959
AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT.  CONGRESS THERE
WITHDREW THE BAN INSERTED BY THE TAFT-HARTLEY AMENDMENT DISQUALIFYING
REPLACED STRIKERS FROM VOTING IN UNION ELECTIONS.  NOW, EMPLOYEES NOT
ENTITLED TO REINSTATEMENT CAN, UNDER REGULATIONS PROMULGATED BY THE
BOARD, EXERCISE THEIR PRE-STRIKE VOTING RIGHTS.  SEE SEC. 9(C)(3); S.
REP. NO. 187, 86TH CONG., 1ST SESS. 32-33. 

FN13  "LABOR UNIONS  ...  WERE ORGANIZED OUT OF THE NECESSITIES OF
THE SITUATION.  A SINGLE EMPLOYEE WAS HELPLESS IN DEALING WITH AN
EMPLOYER.  HE WAS DEPENDENT ORDINARILY ON HIS DAILY WAGE FOR THE
MAINTENANCE OF HIMSELF AND FAMILY.  IF THE EMPLOYER REFUSED TO PAY HIM
THE WAGES THAT HE THOUGHT FAIR, HE WAS NEVERTHELESS UNABLE TO LEAVE THE
EMPLOY AND TO RESIST ARBITRARY AND UNFAIR TREATMENT.  UNION WAS
ESSENTIAL TO GIVE LABORERS OPPORTUNITY TO DEAL ON EQUALITY WITH THEIR
EMPLOYER.  THEY UNITED TO EXERT INFLUENCE UPON HIM AND TO LEAVE HIM IN
A BODY IN ORDER BY THIS INCONVENIENCE TO INDUCE HIM TO MAKE BETTER
TERMS WITH THEM.  THEY WERE WITHHOLDING THEIR LABOR OF ECONOMIC VALUE
TO MAKE HIM PAY WHAT THEY THOUGHT IT WAS WORTH.  THE RIGHT TO COMBINE
FOR SUCH A LAWFUL PURPOSE HAS IN MANY YEARS NOT BEEN DENIED BY ANY
COURT.  THE STRIKE BECAME A LAWFUL INSTRUMENT IN A LAWFUL ECONOMIC
STRUGGLE OR COMPETITION BETWEEN EMPLOYER AND EMPLOYEES AS TO THE SHARE
OR DIVISION BETWEEN THEM OF THE JOINT PRODUCT OF LABOR AND CAPITAL." 

AMERICAN STEEL FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S. 184, 209,
QUOTED IN STAFF REPORT OF SENATE COMMITTEE ON EDUCATION AND LABOR, 74TH
CONG., 1ST SESS., COMPARISON OF S. 2926 (73D CONG.) AND S. 1958 (74TH
CONG.) 20.  SEE ALSO, REMARKS OF SENATOR WAGNER BEFORE SENATE COMMITTEE
ON EDUCATION AND LABOR, 73D CONG., 2D SESS., HEARINGS ON S. 2926, 10
11: 

"IT HAS BEEN URGED THAT THE BILL PLACES A PREMIUM ON DISCORD BY
DECLARING THAT NONE OF ITS PROVISIONS SHALL IMPAIR THE RIGHT TO
STRIKE.  ON THE CONTRARY, NOTHING WOULD DO MORE TO ALIENATE EMPLOYEE
COOPERATION AND TO PROMOTE UNREST THAN A LAW WHICH DID NOT MAKE IT
CLEAR THAT EMPLOYEES COULD REFRAIN FROM WORKING IF THAT SHOULD BECOME
THEIR ONLY REDRESS." 

REMARKS OF SENATOR TAFT, 93 CONG. REC. 3835 (1947): 

"THAT MEANS THAT WE RECOGNIZE FREEDOM TO STRIKE WHEN THE QUESTION
INVOLVED IS THE IMPROVEMENT OF WAGES, HOURS, AND WORKING CONDITIONS,
WHEN A CONTRACT HAS EXPIRED AND NEITHER SIDE IS BOUND BY A CONTRACT. 
WE RECOGNIZE THAT RIGHT IN SPITE OF THE INCONVENIENCE, AND IN SOME
CASES PERHAPS DANGER, TO THE PEOPLE OF THE UNITED STATES WHICH MAY
RESULT FROM THE EXERCISE OF SUCH RIGHT  ...  .  WE HAVE CONSIDERED THE
QUESTION WHETHER THE RIGHT TO STRIKE CAN BE MODIFIED.  I THINK IT CAN
BE MODIFIED IN CASES WHICH DO NOT INVOLVE THE BASIC QUESTION OF WAGES,
PRICES, AND WORKING CONDITIONS  ...  .  SO FAR AS THE BILL IS
CONCERNED, WE HAVE PROCEEDED ON THE THEORY THAT THERE IS A RIGHT TO
STRIKE AND THAT LABOR PEACE MUST BE BASED ON FREE COLLECTIVE
BARGAINING.  WE HAVE DONE NOTHING TO OUTLAW STRIKES FOR BASIC WAGES,
HOURS, AND WORKING CONDITIONS AFTER PROPER OPPORTUNITY FOR MEDIATION." 

FN14  "WE DO NOT AGREE WITH RESPONDENT'S CONTENTION THAT THE UNION IN
ITS STRIKE SETTLEMENT AGREEMENT OF JULY 17 WAIVED ALL RIGHTS FOR THESE
EMPLOYEES.  THE SETTLEMENT AGREEMENT PROVIDED, INTER ALIA:  'THE
COMPANY'S REPLACEMENT AND JOB ASSURANCE POLICY TO BE RESOLVED BY THE
NLRB AND THE FEDERAL COURTS AND TO REMAIN IN EFFECT PENDING FINAL
DISPOSITION.'  IT IS CLEAR THAT THIS AGREEMENT WAS INTENDED MERELY AS
AN INTERIM SETTLEMENT PENDING LEGAL DETERMINATION OF THE EMPLOYEES'
RIGHTS.  IN ANY EVENT, WE WOULD NOT IN OUR DISCRETION HONOR A PRIVATE
SETTLEMENT WHICH PURPORTED TO DENY TO EMPLOYEES THE RIGHTS GUARANTEED
THEM BY THE ACT.  CF. WOOSTER DIVISION OF BORG-WARNER CORPORATION, 121
NLRB 1492, 1495."  ERIE RESISTOR CORP., 132 N.L.R.B. 621, 631 N. 31. 

MR. JUSTICE HARLAN, CONCURRING. 

I AGREE WITH THE COURT THAT THE BOARD'S CONCLUSIONS RESPECTING THIS
20-YEAR "SUPERSENIORITY" PLAN WERE JUSTIFIED WITHOUT INQUIRY INTO THE
RESPONDENTS' MOTIVES.  HOWEVER, I DO NOT THINK THAT THE SAME THING
WOULD NECESSARILY BE TRUE IN ALL CIRCUMSTANCES, AS FOR EXAMPLE WITH A
PLAN PROVIDING FOR A MUCH SHORTER PERIOD OF EXTRA SENIORITY.  BEING
UNSURE WHETHER THE COURT INTENDS TO HOLD THAT THE BOARD HAS POWER TO
OUTLAW ALL SUCH PLANS, IRRESPECTIVE OF THE EMPLOYER'S MOTIVES AND OTHER
CIRCUMSTANCES, OR ONLY TO SUSTAIN ITS ACTION IN THE PARTICULAR
CIRCUMSTANCES OF THIS CASE, I CONCUR IN THE JUDGMENT. 
..END :

















SMITH V. MISSISSIPPI 373 U.S. 238 


NO. 667.  ARGUED APRIL 30, 1963.  - DECIDED MAY 13, 1963.  - REPORTED
BELOW: - MISS.  - , 139 SO. 2D 857. 


AFTER ORAL ARGUMENT AND STUDY OF THE RECORD, IT APPEARS THAT THE
RECORD IS NOT SUFFICIENT TO PERMIT DECISION OF PETITIONER'S CLAIMS
THAT, IN HIS TRIAL AND CONVICTION FOR RAPE, HE WAS DENIED RIGHTS
SECURED TO HIM THE FOURTEENTH AMENDMENT.  THEREFORE, THE WRIT OF
CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED, WITHOUT PREJUDICE TO
AN APPLICATION FOR FEDERAL HABEAS CORPUS RELIEF UNDER 28 U.S.C. SEC.
2241 AFTER EXHAUSTION OF ANY STATE REMEDIES STILL OPEN TO PETITIONER. 

SMITH V. MISSISSIPPI. 

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE PETITIONER WAS CONVICTED OF RAPE BY A JURY IN THE CIRCUIT COURT
OF MADISON COUNTY, MISSISSIPPI, AND SENTENCED TO DEATH.  THE CONVICTION
WAS AFFIRMED BY THE SUPREME COURT OF MISSISSIPPI.  - MISS.  - , 139 SO.
2D 857.  WE GRANTED PETITIONER'S MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS, AND HIS PETITION FOR CERTIORARI WHICH PRESENTED SEVERAL
CLAIMS OF ALLEGED DENIAL OF RIGHTS SECURED TO HIM BY THE FOURTEENTH
AMENDMENT.  371 U.S. 939.  AFTER ORAL ARGUMENT AND STUDY OF THE RECORD,
WE HAVE REACHED THE CONCLUSION THAT THE RECORD IS NOT SUFFICIENT TO
PERMIT DECISION OF HIS CONSTITUTIONAL CLAIMS.  THE WRIT IS THEREFORE
DISMISSED AS IMPROVIDENTLY GRANTED, WITHOUT PREJUDICE TO AN APPLICATION
FOR FEDERAL HABEAS CORPUS RELIEF UNDER 28 U.S.C. SEC. 2241 AFTER
EXHAUSTION OF ANY STATE REMEDIES STILL OPEN TO HIM.  SEE 28 U.S.C. SEC.
2254; FAY V. NOIA, 372 U.S. 391, 435. 

UPON THE EFFECTIVE DATE OF OUR ACTION TODAY, THE STAY OF EXECUTION
GRANTED OCTOBER 5, 1962, BY MR. JUSTICE BLACK EXPIRES OF ITS OWN
TERMS.  WE SEE NO REASON, HOWEVER, TO CONTINUE THE STAY IN EFFECT. 
ALTHOUGH THE MISSISSIPPI SUPREME COURT, SEE - MISS.  - , 145 SO. 2D
688, RESERVED TO THE STATE THE RIGHT, UPON THIS COURT'S DISPOSITION OF
THE WRIT OF CERTIORARI, TO APPLY FOR AN ORDER FIXING A NEW EXECUTION
DATE, WE ASSUME THAT THAT COURT WILL NOT ACT ON APPLICATION OF THE
STATE WITHOUT AFFORDING PETITIONER AN OPPORTUNITY TO PURSUE WITH DUE
DILIGENCE ANY AVAILABLE STATE REMEDIES AND, IF NECESSARY, THE REMEDY IN
FEDERAL HABEAS CORPUS.  WRIT DISMISSED. 
..END :








FLORA CONSTRUCTION CO. V. GRAND JUNCTION STEEL FABRICATING CO. 373 U.S.
240 


NO. 949.  DECIDED MAY 13, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


FLORA CONSTRUCTION CO. V. GRAND JUNCTION STEEL FABRICATING CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEVADA. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH PRINTING THE JURISDICTIONAL STATEMENT IS
GRANTED. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :













SHOTT V. OHIO 373 U.S. 240 A 


NO. 877.  DECIDED MAY 13, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  173 OHIO ST. 542, 184 N.E.2D 213. 


SHOTT V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :













GEORGE V. CLEMMONS 373 U.S. 241 


NO. 975.  DECIDED MAY 13, 1963.  - CERTIORARI GRANTED; JUDGMENT
REVERSED. 


GEORGE ET AL. V. CLEMMONS, SHERIFF. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  JOHNSON V. VIRGINIA, ANTE, P. 61.  CF. THOMPSON V.
LOUISVILLE, 362 U.S. 199. 
..END :















ABERNATHY V. CARPENTER 373 U.S. 241 


NO. 905.  DECIDED MAY 13, 1963.  - 208 F. SUPP. 793, AFFIRMED. 


ABERNATHY ET AL. V. CARPENTER, DIRECTOR OF REVENUE FOR MISSOURI. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















COPENHAVER V. BENNETT 373 U.S. 242 


NO. 928, MISC.  DECIDED MAY 13, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


COPENHAVER V. BENNETT, WARDEN. 

APPEAL FROM THE SUPREME COURT OF IOWA AND THE DISTRICT COURT OF LEE
COUNTY, IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BOYES V. UNITED STATES 373 U.S. 242 


NO. 59, MISC.  DECIDED MAY 13, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


BOYES V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITIONER
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF TEXAS FOR FURTHER CONSIDERATION IN LIGHT OF SANDERS V.
UNITED STATES, ANTE, P. 1. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN WOULD DENY CERTIORARI ON THE
BASIS OF THEIR DISSENT IN SANDERS V. UNITED STATES, ANTE, P. 23. 
..END :










CLARK V. PENNSYLVANIA 373 U.S. 243 


NO. 689, MISC.  DECIDED MAY 13, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CLARK V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BAKER V. UNITED STATES 373 U.S. 243 


NO. 494, MISC.  DECIDED MAY 13, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  306 F.2D 491. 


BAKER V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF WASHINGTON FOR FURTHER CONSIDERATION IN LIGHT OF SANDERS V.
UNITED STATES, ANTE, P. 1. 

MR. JUSITCE CLARK AND MR. JUSTICE HARLAN WOULD DENY CERTIORARI ON THE
BASIS OF THEIR DISSENT IN SANDERS V. UNITED STATES, ANTE, P. 23. 
..END :










SANDERS V. UNITED STATES 373 U.S. 1 


NO. 202.  ARGUED FEBRUARY 25, 1963.  - DECIDED APRIL 29, 1963.  - 297
F.2D 735, REVERSED AND CASE REMANDED. 


ARRESTED ON A CHARGE OF ROBBING A FEDERALLY INSURED BANK IN VIOLATION
OF 18 U.S.C.  SEC  2113(A) AND BROUGHT INTO A FEDERAL DISTRICT COURT,
PETITIONER DECLINED ASSISTANCE OF COUNSEL, SIGNED A WAIVER OF
INDICTMENT, PLEADED GUILTY, AND WAS SENTENCED TO IMPRISONMENT. 
SUBSEQUENTLY, HE FILED IN THE SENTENCING COURT A MOTION UNDER 28 U.S.C.
SEC. 2255 FOR HIS RELEASE, ALLEGING THAT THE "INDICTMENT" WAS INVALID,
THAT HE HAD BEEN DENIED ASSISTANCE OF COUNSEL, AND THAT HE HAD BEEN
INTIMIDATED AND COERCED INTO PLEADING GUILTY WITHOUT COUNSEL AND
WITHOUT KNOWLEDGE OF THE CHARGES AGAINST HIM.  THIS MOTION WAS DENIED
WITHOUT A HEARING, ON THE GROUND THAT IT STATED ONLY CONCLUSIONS AND NO
FACTS UPON WHICH CONCLUSIONS COULD BE BASED; BUT THE COURT ADDED THAT
THE FILES AND RECORDS SHOWED CONCLUSIVELY THAT PETITIONER WAS ENTITLED
TO NO RELIEF.  LATER PETITIONER FILED A SECOND MOTION UNDER SEC. 2255,
ALLEGING THAT, AT THE TIME OF HIS TRIAL AND SENTENCE, HE HAD BEEN
MENTALLY INCOMPETENT AS A RESULT OF NARCOTICS ADMINISTERED TO HIM WHILE
HE WAS IN JAIL PENDING TRIAL, AND HE ALLEGED SPECIFIC FACTS IN SUPPORT
OF THIS CLAIM.  THIS MOTION WAS DENIED WITHOUT A HEARING, ON THE GROUND
THAT PETITIONER SHOULD HAVE RAISED THE ISSUE OF MENTAL INCOMPETENCY AT
THE TIME OF HIS FIRST MOTION.  HELD:  THE COURT SHOULD HAVE GRANTED A
HEARING ON THE SECOND MOTION.  PP. 2-23. 

(A)  CONTROLLING WEIGHT MAY BE GIVEN TO DENIAL OF A PRIOR APPLICATION
FOR RELIEF UNDER SEC. 2255 ONLY IF (1) THE SAME GROUND PRESENTED IN THE
SUBSEQUENT APPLICATION WAS DETERMINED ADVERSELY TO THE APPLICANT ON THE
PRIOR APPLICATION, (2) THE PRIOR DETERMINATION WAS ON THE MERITS, AND
(3) THE ENDS OF JUSTICE WOULD NOT BE SERVED BY REACHING THE MERITS OF
THE SUBSEQUENT APPLICATION.  PP. 15-17. 

(B)  NO MATTER HOW MANY PRIOR APPLICATIONS FOR RELIEF UNDER SEC. 2255
A PRISONER HAS MADE, CONTROLLING WEIGHT MAY NOT BE GIVEN TO DENIAL OF
PRIOR APPLICATIONS IF THEY WERE NOT ADJUDICATED ON THE MERITS OR IF A
DIFFERENT GROUND IS PRESENTED BY THE NEW APPLICATION.  IN SUCH
CIRCUMSTANCES, CONSIDERATION OF THE MERITS OF THE NEW APPLICATION CAN
BE AVOIDED ONLY IF THERE HAS BEEN AN ABUSE OF THE REMEDY, AND THIS MUST
BE PLEADED BY THE GOVERNMENT.  PP. 17-19. 

(C)  IN THIS CASE, THE COURT SHOULD HAVE GRANTED A HEARING ON THE
SECOND APPLICATION, BECAUSE THE FIRST APPLICATION WAS NOT ADJUDICATED
ON THE MERITS AND THE FACTS ON WHICH THE SECOND APPLICATION WAS
PREDICATED WERE OUTSIDE THE RECORD.  PP. 19-20. 

(D)  ON REMAND, A HEARING WILL BE REQUIRED; BUT IT WILL NOT
AUTOMATICALLY BECOME NECESSARY TO PRODUCE PETITIONER AT THE HEARING TO
ENABLE HIM TO TESTIFY.  THE COURT WILL HAVE DISCRETION TO ASCERTAIN
WHETHER THE CLAIM IS SUBSTANTIAL BEFORE GRANTING A FULL EVIDENTIARY
HEARING, AND IT WILL BE OPEN TO RESPONDENT TO ATTEMPT TO SHOW THAT
PETITIONER'S FAILURE TO CLAIM MENTAL INCOMPETENCY IN HIS FIRST MOTION
WAS AN ABUSE OF THE MOTION REMEDY.  PP.  20-22. 

SANDERS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

WE CONSIDER HERE THE STANDARDS WHICH SHOULD GUIDE A FEDERAL COURT IN
DECIDING WHETHER TO GRANT A HEARING ON A MOTION OF A FEDERAL PRISONER
UNDER 28 U.S.C. SEC. 2255.  (FN1)  UNDER THAT STATUTE, A FEDERAL
PRISONER WHO CLAIMS THAT HIS SENTENCE WAS IMPOSED IN VIOLATION OF THE
CONSTITUTION OR LAWS OF THE UNITED STATES MAY SEEK RELIEF FROM THE
SENTENCE BY FILING A MOTION IN THE SENTENCING COURT STATING THE FACTS
SUPPORTING HIS CLAIM.  "A PROMPT HEARING" ON THE MOTION IS REQUIRED
"UNLESS THE MOTION AND THE FILES AND RECORDS OF THE CASE CONCLUSIVELY
SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF  ...  ."  THE SECTION
FURTHER PROVIDES THAT "THE SENTENCING COURT SHALL NOT BE REQUIRED TO
ENTERTAIN A SECOND OR SUCCESSIVE MOTION FOR SIMILAR RELIEF ON BEHALF OF
THE SAME PRISONER." 

THE PETITIONER IS SERVING A 15-YEAR SENTENCE FOR ROBBERY OF A
FEDERALLY INSURED BANK IN VIOLATION OF 18 U.S.C. SEC. 2113(A).  HE
FILED TWO MOTIONS UNDER SEC. 2255.  THE FIRST ALLEGED NO FACTS BUT ONLY
BARE CONCLUSIONS IN SUPPORT OF HIS CLAIM.  THE SECOND, FILED EIGHT
MONTHS AFTER THE FIRST, ALLEGED FACTS WHICH, IF TRUE, MIGHT ENTITLE HIM
TO RELIEF.  BOTH MOTIONS WERE DENIED, WITHOUT HEARING, BY THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.  ON APPEAL FROM THE
DENIAL OF THE SECOND MOTION, THE COURT OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMED.  297 F.2D 735.  WE GRANTED LEAVE TO PROCEED IN FORMA PAUPERIS
AND CERTIORARI.  370 U.S. 936. 

ON JANUARY 19, 1959, PETITIONER WAS BROUGHT BEFORE THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND WAS HANDED
A COPY OF A PROPOSED INFORMATION CHARGING HIM WITH THE ROBBERY.  HE
APPEARED WITHOUT COUNSEL.  IN RESPONSE TO INQUIRIES OF THE TRIAL JUDGE,
PETITIONER STATED THAT HE WISHED TO WAIVE ASSISTANCE OF COUNSEL AND TO
PROCEED BY INFORMATION RATHER THAN INDICTMENT; (FN2) HE SIGNED A WAIVER
OF INDICTMENT, AND THEN PLEADED GUILTY TO THE CHARGE IN THE
INFORMATION.  ON FEBRUARY 10 HE WAS SENTENCED.  BEFORE SENTENCE WAS
PRONOUNCED, PETITIONER SAID TO THE JUDGE:  "IF POSSIBLE, YOUR HONOR, I
WOULD LIKE TO GO TO SPRINGFIELD OR LEXINGTON FOR ADDICTION CURE.  I
HAVE BEEN USING NARCOTICS OFF AND ON FOR QUITE A WHILE."  THE JUDGE
REPLIED THAT HE WAS "WILLING TO RECOMMEND THAT." 

ON JANUARY 4, 1960, PETITIONER, APPEARING PRO SE, FILED HIS FIRST
MOTION.  HE ALLEGED NO FACTS BUT MERELY THE CONCLUSIONS THAT (1) THE
"INDICTMENT" WAS INVALID, (2) "APPELLANT WAS DENIED ADEQUATE ASSISTANCE
OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT," AND (3) THE
SENTENCING COURT HAD "ALLOWED THE APPELLANT TO BE INTIMIDATED AND
COERCED INTO ENTERING A PLEA WITHOUT COUNSEL, AND ANY KNOWLEDGE OF THE
CHARGES LODGED AGAINST THE APPELLANT."  HE FILED WITH THE MOTION AN
APPLICATION FOR A WRIT OF HABEAS CORPUS AD TESTIFICANDUM REQUIRING THE
PRISON AUTHORITIES TO PRODUCE HIM BEFORE THE COURT TO TESTIFY IN
SUPPORT OF HIS MOTION.  ON FEBRUARY 3 THE DISTRICT COURT DENIED BOTH
THE MOTION AND THE APPLICATION.  IN A MEMORANDUM ACCOMPANYING THE
DENIAL, THE COURT EXPLAINED THAT THE MOTION, "ALTHOUGH REPLETE WITH
CONCLUSIONS, SETS FORTH NO FACTS UPON WHICH SUCH CONCLUSIONS CAN BE
FOUNDED.  FOR THIS REASON ALONE, THIS MOTION MAY BE DENIED WITHOUT A
HEARING."  NEVERTHELESS, THE COURT STATED FURTHER THAT THE MOTION "SETS
FORTH NOTHING BUT UNSUPPORTED CHARGES, WHICH ARE COMPLETELY REFUTED BY
THE FILES AND RECORDS OF THIS CASE.  SINCE THE MOTION AND THE FILES AND
RECORDS OF THE CASE CONCLUSIVELY SHOW THAT THE PRISONER IS ENTITLED TO
NO RELIEF, NO HEARING ON THE MOTION IS NECESSARY."  NO APPEAL WAS TAKEN
BY THE PETITIONER FROM THIS DENIAL. 

ON SEPTEMBER 8 PETITIONER, AGAIN APPEARING PRO SE, FILED HIS SECOND
MOTION.  THIS TIME HE ALLEGED THAT AT THE TIME OF HIS TRIAL AND
SENTENCE HE WAS MENTALLY INCOMPETENT AS A RESULT OF NARCOTICS
ADMINISTERED TO HIM WHILE HE WAS HELD IN THE SACRAMENTO COUNTY JAIL
PENDING TRIAL.  HE STATED IN A SUPPORTING AFFIDAVIT THAT HE HAD BEEN
CONFINED IN THE JAIL FROM ON OR ABOUT JANUARY 16, 1959, TO FEBRUARY 18,
1959; THAT DURING THIS PERIOD AND DURING THE PERIOD OF HIS "TRIAL" HE
HAD BEEN INTERMITTENTLY UNDER THE INFLUENCE OF NARCOTICS; AND THAT THE
NARCOTICS HAD BEEN ADMINISTERED TO HIM BY THE MEDICAL AUTHORITIES IN
ATTENDANCE AT THE JAIL BECAUSE OF HIS BEING A KNOWN ADDICT.  THE
DISTRICT COURT DENIED THE MOTION WITHOUT HEARING, STATING:  "AS THERE
IS NO REASON GIVEN, OR APPARENT TO THIS COURT, WHY PETITIONER COULD
NOT, AND SHOULD NOT, HAVE RAISED THE ISSUE OF MENTAL INCOMPETENCY AT
THE TIME OF HIS FIRST MOTION, THE COURT WILL REFUSE, IN THE EXERCISE OF
ITS STATUTORY DISCRETION, TO ENTERTAIN THE PRESENT PETITION."  THE
COURT ALSO STATED THAT "PETITIONER'S COMPLAINTS ARE WITHOUT MERIT IN
FACT."  ON APPEAL FROM THE ORDER DENYING THIS MOTION, THE COURT OF
APPEALS FOR THE NINTH CIRCUIT AFFIRMED.  297 F.2D 735 (1961).  THE
COURT OF APPEALS SAID IN A PER CURIAM OPINION:  "WHERE, AS HERE, IT IS
APPARENT FROM THE RECORD THAT AT THE TIME OF FILING THE FIRST MOTION
THE MOVANT KNEW THE FACTS ON WHICH THE SECOND MOTION IS BASED, YET IN
THE SECOND MOTION SET FORTH NO REASON WHY HE WAS PREVIOUSLY UNABLE TO
ASSERT THE NEW GROUND AND DID NOT ALLEGE THAT HE HAD PREVIOUSLY BEEN
UNAWARE OF THE SIGNIFICANCE OF THE RELEVANT FACTS, THE DISTRICT COURT,
MAY, IN ITS DISCRETION, DECLINE TO ENTERTAIN THE SECOND MOTION."  297
F.2D, AT 736-737. 

WE REVERSE.  WE HOLD THAT THE SENTENCING COURT SHOULD HAVE GRANTED A
HEARING ON THE SECOND MOTION. 

                                       I. 

THE STATUTE IN TERMS REQUIRES THAT A PRISONER SHALL BE GRANTED A
HEARING ON A MOTION WHICH ALLEGES SUFFICIENT FACTS TO SUPPORT A CLAIM
FOR RELIEF UNLESS THE MOTION AND THE FILES AND RECORDS OF THE CASE
"CONCLUSIVELY SHOW" THAT THE CLAIM IS WITHOUT MERIT.  THIS IS THE FIRST
CASE IN WHICH WE HAVE BEEN CALLED UPON TO DETERMINE WHAT SIGNIFICANCE,
IN DECIDING WHETHER TO GRANT A HEARING, THE SENTENCING COURT SHOULD
ATTACH TO ANY RECORD OF PROCEEDINGS ON PRIOR MOTIONS FOR RELIEF WHICH
MAY BE AMONG THE FILES AND RECORDS OF THE CASE, IN LIGHT OF THE
PROVISION THAT:  "THE SENTENCING COURT SHALL NOT BE REQUIRED TO
ENTERTAIN A SECOND OR SUCCESSIVE MOTION FOR SIMILAR RELIEF ON BEHALF OF
THE SAME PRISONER."  THIS PROVISION HAS CAUSED UNCERTAINTY IN THE
DISTRICT COURTS, SEE BISTRAM V. UNITED STATES, 180 F. SUPP. 510
(D.C.D.N. DAK.), AFF'D, 283 F.2D 1 (C.A. 8TH CIR. 1960), AND HAS
PROVOKED A CONFLICT BETWEEN CIRCUITS:  WITH THE DECISION OF THE COURT
OF APPEALS FOR THE NINTH CIRCUIT IN THE INSTANT CASE, COMPARE, E.G.,
JUELICH V. UNITED STATES, 300 F.2D 381 (C.A. 5TH CIR. 1962); SMITH V.
UNITED STATES, 106 U.S. APP. D.C. 169, 270 F.2D 921 (1959).  WE THINK
GUIDELINES TO THE PROPER CONSTRUCTION OF THE PROVISION ARE TO BE FOUND
IN ITS HISTORY. 

AT COMMON LAW, THE DENIAL BY A COURT OR JUDGE OF AN APPLICATION FOR
HABEAS CORPUS WAS NOT RES JUDICATA.  KING V. SUDDIS, 1 EAST 306, 102
ENG. REP. 119 (K.B. 1801); BURDETT V. ABBOT, 14 EAST 1, 90, 104 ENG.
REP. 501, 535 (K.B. 1811); EX PARTE PARTINGTON, 13 M.&.W.  679, 153
ENG. REP. 284 (EX. 1845); CHURCH, HABEAS CORPUS (1884), SEC. 386;
FERRIS AND FERRIS, EXTRAORDINARY LEGAL REMEDIES (1926), SEC. 55.  (FN3)
"A PERSON DETAINED IN CUSTODY MIGHT THUS PROCEED FROM COURT TO COURT
UNTIL HE OBTAINED HIS LIBERTY."  COX V. HAKES, 15 A.C. 506, 527 (H.L.,
1890).  (FN4)  THAT THIS WAS A PRINCIPLE OF OUR LAW OF HABEAS CORPUS AS
WELL AS THE ENGLISH WAS ASSUMED TO BE THE CASE FROM THE EARLIEST DAYS
OF FEDERAL HABEAS CORPUS JURISDICTION.  CF. EX PARTE BURFORD, 3 CRANCH
448 (CHIEF JUSTICE MARSHALL).  SINCE THEN, IT HAS BECOME SETTLED IN AN
UNBROKEN LINE OF DECISIONS.  EX PARTE KAINE, 3 BLATCHF.  1, 5-6 (MR.
JUSTICE NELSON IN CHAMBERS); IN RE KAINE, 14 HOW.  103; EX PARTE CUDDY,
40 F. 62, 65 (CIR. CT. S.D. CAL. 1889) (MR. JUSTICE FIELD); FRANK V.
MANGUM, 237 U.S. 309, 334; SALINGER V. LOISEL, 265 U.S. 224, 230; WALEY
V. JOHNSTON, 316 U.S. 101; UNITED STATES EX REL. ACCARDI V.
SHAUGHNESSY, 347 U.S. 260, 263, N. 4; HEFLIN V. UNITED STATES, 358 U.S.
415, 420 (OPINION OF MR. JUSTICE STEWART)(DICTUM); POWELL V. SACKS, 303
F.2D 808 (C.A. 6TH CIR. 1962).  INDEED, ONLY THE OTHER DAY WE REMARKED
UPON "THE FAMILIAR PRINCIPLE THAT RES JUDICATA IS INAPPLICABLE IN
HABEAS PROCEEDINGS."  FAY V. NOIA, 372 U.S. 391, 423. 

IT HAS BEEN SUGGESTED, SEE SALINGER V. LOISEL, SUPRA, AT 230-231,
THAT THIS PRINCIPLE DERIVES FROM THE FACT THAT AT COMMON LAW HABEAS
CORPUS JUDGMENTS WERE NOT APPEALABLE.  BUT ITS ROOTS WOULD SEEM TO GO
DEEPER.  CONVENTIONAL NOTIONS OF FINALITY OF LITIGATION HAVE NO PLACE
WHERE LIFE OR LIBERTY IS AT STAKE AND INFRINGEMENT OF CONSTITUTIONAL
RIGHTS IS ALLEGED.  IF "GOVERNMENT  ...  IS ALWAYS TO BE ACCOUNTABLE TO
THE JUDICIARY FOR A MAN'S IMPRISONMENT," FAY V. NOIA, SUPRA, AT 402,
ACCESS TO THE COURTS ON HABEAS MUST NOT BE THUS IMPEDED.  THE
INAPPLICABILITY OF RES JUDICATA TO HABEAS, THEN, IS INHERENT IN THE
VERY ROLE AND FUNCTION OF THE WRIT. 

A PRISONER WHOSE MOTION UNDER SEC. 2255 IS DENIED WILL OFTEN FILE
ANOTHER, SOMETIMES MANY SUCCESSIVE MOTIONS.  WE ARE AWARE THAT IN
CONSEQUENCE THE QUESTION WHETHER TO GRANT A HEARING ON A SUCCESSIVE
MOTION CAN BE TROUBLESOME - PARTICULARLY WHEN THE MOTION IS PREPARED
WITHOUT THE ASSISTANCE OF COUNSEL AND CONTAINS MATTER EXTRANEOUS TO THE
PRISONER'S CASE.  BUT THE PROBLEM IS NOT NEW, AND OUR DECISIONS UNDER
HABEAS CORPUS HAVE IDENTIFIED SITUATIONS WHERE DENIAL WITHOUT HEARING
IS PROPER EVEN THOUGH A SECOND OR SUCCESSIVE APPLICATION STATES A CLAIM
FOR RELIEF.  ONE SUCH SITUATION IS THAT INVOLVED IN SALINGER V. LOISEL,
SUPRA.  THERE, A FIRST APPLICATION FOR HABEAS CORPUS HAD BEEN DENIED,
AFTER HEARING, BY ONE DISTRICT COURT, AND THE DENIAL WAS AFFIRMED BY
THE COURT OF APPEALS.  THE PRISONER THEN FILED SUBSEQUENT APPLICATIONS,
ALL IDENTICAL TO THE FIRST, IN A DIFFERENT DISTRICT COURT.  WE
INDICATED THAT THE SUBSEQUENT APPLICATIONS MIGHT PROPERLY HAVE BEEN
DENIED SIMPLY ON THE BASIS THAT THE FIRST DENIAL HAD FOLLOWED A FULL
HEARING ON THE MERITS.  WE THERE ANNOUNCED A GOVERNING PRINCIPLE; WHILE
REAFFIRMING THE INAPPLICABILITY OF RES JUDICATA TO HABEAS, WE SAID:
"EACH APPLICATION IS TO BE DISPOSED OF IN THE EXERCISE OF A SOUND
JUDICIAL DISCRETION GUIDED AND CONTROLLED BY A CONSIDERATION OF
WHATEVER HAS A RATIONAL BEARING ON THE PROPRIETY OF THE DISCHARGE
SOUGHT.  AMONG THE MATTERS WHICH MAY BE CONSIDERED, AND EVEN GIVEN
CONTROLLING WEIGHT, ARE  ...  A PRIOR REFUSAL TO DISCHARGE ON A LIKE
APPLICATION."  265 U.S., AT 231.  THE COURT QUOTED APPROVINGLY FROM MR.
JUSTICE FIELD'S OPINION IN EX PARTE CUDDY, SUPRA, AT 66:  "'THE ACTION
OF THE COURT OR JUSTICE ON THE SECOND APPLICATION WILL NATURALLY BE
AFFECTED TO SOME DEGREE BY THE CHARACTER OF THE COURT OR OFFICER TO
WHOM THE FIRST APPLICATION WAS MADE, AND THE FULLNESS OF THE
CONSIDERATION GIVEN TO IT.'"  265 U.S., AT 231-232.  THE PETITIONER'S
SUCCESSIVE APPLICATIONS WERE PROPERLY DENIED BECAUSE HE SOUGHT TO RETRY
A CLAIM PREVIOUSLY FULLY CONSIDERED AND DECIDED AGAINST HIM. 
SIMILARLY, NOTHING IN SEC. 2255 REQUIRES THAT A SENTENCING COURT GRANT
A HEARING ON A SUCCESSIVE MOTION ALLEGING A GROUND FOR RELIEF ALREADY
FULLY CONSIDERED ON A PRIOR MOTION AND DECIDED AGAINST THE PRISONER. 

ANOTHER SUCH SITUATION IS THAT WHICH WAS PRESENTED IN WONG DOO V.
UNITED STATES, 265 U.S. 239.  IN WONG DOO THE PRISONER IN HIS FIRST
APPLICATION FOR HABEAS CORPUS TENDERED TWO GROUNDS IN SUPPORT OF HIS
POSITION.  A HEARING WAS HELD BUT THE PETITIONER OFFERED NO PROOF OF
HIS SECOND GROUND, EVEN THOUGH THE RETURN TO THE WRIT HAD PUT IT IN
ISSUE.  RELIEF WAS DENIED AND THE DENIAL AFFIRMED BY THE CIRCUIT COURT
OF APPEALS.  LATER, HE FILED A SECOND APPLICATION RELYING EXCLUSIVELY
ON THE SECOND GROUND.  RELIEF WAS DENIED.  WE UPHELD THE DENIAL:  "THE
PETITIONER HAD FULL OPPORTUNITY TO OFFER PROOF OF  ...  THE SECOND
GROUND AT THE HEARING ON THE FIRST PETITION; AND, IF HE WAS INTENDING
TO RELY ON THAT GROUND, GOOD FAITH REQUIRED THAT HE PRODUCE THE PROOF
THEN.  TO RESERVE THE PROOF FOR USE IN ATTEMPTING TO SUPPORT A LATER
PETITION, IF THE FIRST FAILED, WAS TO MAKE AN ABUSIVE USE OF THE WRIT
OF HABEAS CORPUS.  NO REASON FOR NOT PRESENTING THE PROOF AT THE OUTSET
IS OFFERED.  IT HAS NOT BEEN EMBODIED IN THE RECORD, BUT WHAT IS SAID
OF IT THERE AND IN THE BRIEFS SHOWS THAT IT WAS ACCESSIBLE ALL THE
TIME."  265 U.S., AT 241.  SIMILARLY, THE PRISONER WHO ON A PRIOR
MOTION UNDER SEC. 2255 HAS DELIBERATELY WITHHELD A GROUND FOR RELIEF
NEED NOT BE HEARD IF HE ASSERTS THAT GROUND IN A SUCCESSIVE MOTION; HIS
ACTION IS INEQUITABLE - AN ABUSE OF THE REMEDY - AND THE COURT MAY IN
ITS DISCRETION DENY HIM A HEARING. 

THE INTERACTION OF THESE TWO PRINCIPLES - A SUCCESSIVE APPLICATION ON
A GROUND HEARD AND DENIED ON PRIOR APPLICATION, AND ABUSE OF THE WRIT -
WAS ELABORATED IN PRICE V. JOHNSTON, 334 U.S. 266, 287-293.  THE
PETITIONER HAD FOR THE FIRST TIME IN HIS FOURTH APPLICATION ALLEGED THE
KNOWING USE OF PERJURED TESTIMONY BY THE PROSECUTION.  BUT THE COURT
HELD THAT REGARDLESS OF THE NUMBER OF PRIOR APPLICATIONS, THE GOVERNING
PRINCIPLE ANNOUNCED IN SALINGER V. LOISEL COULD NOT COME INTO PLAY
BECAUSE THE FOURTH APPLICATION RELIED ON A GROUND NOT PREVIOUSLY HEARD
AND DETERMINED.  WONG DOO WAS DINSTINGUISHED ON THE GROUND THAT THERE
THE PROOF HAD BEEN "ACCESSIBLE AT ALL TIMES" TO THE PETITIONER, WHICH
DEMONSTRATED HIS BAD FAITH, 334 U.S., AT 289; IN PRICE, BY CONTRAST,
FOR AUGHT THE RECORD DISCLOSED PETITIONER MIGHT HAVE BEEN JUSTIFIABLY
IGNORANT OF NEWLY ALLEGED FACTS OR UNAWARE OF THEIR LEGAL
SIGNIFICANCE.  THE CASE ALSO DECIDED AN IMPORTANT PROCEDURAL QUESTION
WITH REGARD TO ABUSE OF REMEDY AS JUSTIFICATION FOR DENIAL OF A
HEARING, NAMELY, THAT THE BURDEN IS ON THE GOVERNMENT TO PLEAD ABUSE OF
THE WRIT.  "IF THE GOVERNMENT CHOOSES NOT TO DENY THE ALLEGATION (OF
KNOWING USE OF PERJURED TESTIMONY) OR TO QUESTION ITS SUFFICIENCY AND
DESIRES INSTEAD TO CLAIM THAT THE PRISONER HAS ABUSED THE WRIT OF
HABEAS CORPUS, IT RESTS WITH THE GOVERNMENT TO MAKE THAT CLAIM WITH
CLARITY AND PARTICULARITY IN ITS RETURN TO THE ORDER TO SHOW CAUSE." 
ID., AT 292.  THE COURT REASONED THAT IT WOULD BE UNFAIR TO COMPEL THE
HABEAS APPLICANT, TYPICALLY UNLEARNED IN THE LAW AND UNABLE TO PROCURE
LEGAL ASSISTANCE IN DRAFTING HIS APPLICATION, TO PLEAD AN ELABORATE
NEGATIVE. 

VERY SHORTLY AFTER THE PRICE DECISION, AS PART OF THE 1948 REVISION
OF THE JUDICIAL CODE, THE COURT'S STATEMENT IN SALINGER OF THE
GOVERNING PRINCIPLE IN THE TREATMENT OF A SUCCESSIVE APPLICATION WAS
GIVEN STATUTORY FORM.  28 U.S.C. SEC. 2244.  (FN5)  THERE ARE SEVERAL
THINGS TO BE OBSERVED ABOUT THIS CODIFICATION. 

FIRST, IT PLAINLY WAS NOT INTENDED TO CHANGE THE LAW AS JUDICIALLY
EVOLVED.  NOT ONLY DOES THE REVISER'S NOTE DISCLAIM ANY SUCH INTENTION,
BUT LANGUAGE IN THE ORIGINAL BILL WHICH WOULD HAVE INJECTED RES
JUDICATA INTO FEDERAL HABEAS CORPUS WAS DELIBERATELY ELIMINATED FROM
THE ACT AS FINALLY PASSED.  SEE S. REP. NO. 1559, 80TH CONG., 2D SESS.
9; MOORE, COMMENTARY ON THE UNITED STATES JUDICIAL CODE (1949), 436
438.  MOREOVER, IF CONSTRUED TO DEROGATE FROM THE TRADITIONAL
LIBERALITY OF THE WRIT OF HABEAS CORPUS, SEE PP. 7-8, SUPRA, SEC. 2244
MIGHT RAISE SERIOUS CONSTITUTIONAL QUESTIONS.  (FN6)  CF.  FAY V. NOIA,
SUPRA, AT 406. 

SECOND, EVEN WITH RESPECT TO SUCCESSIVE APPLICATIONS ON WHICH
HEARINGS MAY BE DENIED BECAUSE THE GROUND ASSERTED WAS PREVIOUSLY HEARD
AND DECIDED, AS IN SALINGER, SEC. 2244 IS FAITHFUL TO THE COURT'S
PHRASING OF THE PRINCIPLE IN SALINGER, AND DOES NOT ENACT A RIGID
RULE.  THE JUDGE IS PERMITTED, NOT COMPELLED, TO DECLINE TO ENTERTAIN
SUCH AN APPLICATION, AND THEN ONLY IF HE "IS SATISFIED THAT THE ENDS OF
JUSTICE WILL NOT BE SERVED" BY INQUIRING INTO THE MERITS. 

THIRD, SEC. 2244 IS ADDRESSED ONLY TO THE PROBLEM OF SUCCESSIVE
APPLICATIONS BASED ON GROUNDS PREVIOUSLY HEARD AND DECIDED.  IT DOES
NOT COVER A SECOND OR SUCCESSIVE APPLICATION CONTAINING A GROUND "NOT
THERETOFORE PRESENTED AND DETERMINED," AND SO DOES NOT TOUCH THE
PROBLEM OF ABUSE OF THE WRIT.  IN WONG DOO, PETITIONER'S SECOND GROUND
HAD BEEN PRESENTED BUT NOT DETERMINED ON HIS PRIOR APPLICATION; SEC.
2244 WOULD BE INAPPLICABLE IN SUCH A SITUATION.  ON THE OTHER HAND,
SEC. 2244 WAS OBVIOUSLY NOT INTENDED TO FORECLOSE JUDICIAL APPLICATION
OF THE ABUSE-OF-WRIT PRINCIPLE AS DEVELOPED IN WONG DOO AND PRICE. 

ARISES, IS OF COURSE ALSO A PRODUCT OF THE 1948 REVISION - ENACTED, IN
THE LANGUAGE OF THE REVISER'S NOTE, TO PROVIDE "AN EXPEDITIOUS REMEDY
FOR CORRECTING ERRONEOUS SENTENCES (OF FEDERAL PRISONERS) WITHOUT
RESORT TO HABEAS CORPUS."  IT WILL BE NOTED THAT ALTHOUGH SEC. 2255
CONTAINS A PARALLEL PROVISION TO SEC. 2244, THERE IS AN APPARENT VERBAL
DISCREPANCY.  UNDER SEC. 2255, IT IS ENOUGH, IN ORDER TO INVOKE THE
COURT'S DISCRETION TO DECLINE TO REACH THE MERITS, THAT THE PRISONER IS
SEEKING "SIMILAR RELIEF" FOR THE SECOND TIME.  THIS LANGUAGE MIGHT SEEM
TO EMPOWER THE SENTENCING COURT TO APPLY RES JUDICATA VIRTUALLY AT
WILL, SINCE EVEN IF A SECOND MOTION IS PREDICATED ON A COMPLETELY
DIFFERENT GROUND FROM THE FIRST, THE PRISONER ORDINARILY WILL BE
SEEKING THE SAME "RELIEF."  NOTE, 59 YALE L.J. 1183, 1188, N. 24
(1950).  BUT THE LANGUAGE CANNOT BE TAKEN LITERALLY.  IN UNITED STATES
V. HAYMAN, 342 U.S. 205, THE PRISONER VIGOROUSLY CONTENDED THAT SEC.
2255 WAS AN UNCONSTITUTIONAL SUSPENSION OF THE WRIT OF HABEAS CORPUS. 
(FN7)  THE COURT AVOIDED THE CONSTITUTIONAL QUESTION BY HOLDING THAT
SEC. 2255 WAS AS BROAD AS HABEAS CORPUS: 

"THIS REVIEW OF THE HISTORY OF SECTION 2255 SHOWS THAT IT WAS PASSED
AT THE INSTANCE OF THE JUDICIAL CONFERENCE TO MEET PRACTICAL
DIFFICULTIES THAT HAD ARISEN IN ADMINISTERING THE HABEAS CORPUS
JURISDICTION OF THE FEDERAL COURTS.  NOWHERE IN THE HISTORY OF SECTION
2255 DO WE FIND ANY PURPOSE TO IMPINGE UPON PRISONERS' RIGHTS OF
COLLATERAL ATTACK UPON THEIR CONVICTIONS.  ON THE CONTRARY, THE SOLE
PURPOSE WAS TO MINIMIZE THE DIFFICULTIES ENCOUNTERED IN HABEAS CORPUS
HEARINGS BY AFFORDING THE SAME RIGHTS IN ANOTHER AND MORE CONVENIENT
FORUM."  342 U.S., AT 219.  ACCORD, UNITED STATES V. MORGAN, 346 U.S.
502, 511; SMITH V. UNITED STATES, 88 U.S. APP. D.C. 80, 187 F.2D 192
(1950); HEFLIN V. UNITED STATES, 358 U.S. 415, 421 (OPINION OF MR.
JUSTICE STEWART). 

AS WE SAID JUST LAST TERM, "IT CONCLUSIVELY APPEARS FROM THE HISTORIC
CONTEXT IN WHICH SEC. 2255 WAS ENACTED THAT THE LEGISLATION WAS
INTENDED SIMPLY TO PROVIDE IN THE SENTENCING COURT A REMEDY EXACTLY
COMMENSURATE WITH THAT WHICH HAD PREVIOUSLY BEEN AVAILABLE BY HABEAS
CORPUS IN THE COURT OF THE DISTRICT WHERE THE PRISONER WAS CONFINED." 
HILL V. UNITED STATES, 368 U.S. 424, 427. 

PLAINLY, WERE THE PRISONER INVOKING SEC. 2255 FACED WITH THE BAR OF
RES JUDICATA, HE WOULD NOT ENJOY THE "SAME RIGHTS" AS THE HABEAS CORPUS
APPLICANT, OR "A REMEDY EXACTLY COMMENSURATE WITH" HABEAS.  INDEED, IF
HE WERE SUBJECT TO ANY SUBSTANTIAL PROCEDURAL HURDLES WHICH MADE HIS
REMEDY UNDER SEC. 2255 LESS SWIFT AND IMPERATIVE THAN FEDERAL HABEAS
CORPUS, THE GRAVEST CONSTITUTIONAL DOUBTS WOULD BE ENGENDERED, AS THE
COURT IN HAYMAN IMPLICITLY RECOGNIZED.  AND CF. PP. 11-12, SUPRA.  WE
THEREFORE HOLD THAT THE "SIMILAR RELIEF" PROVISION OF SEC. 2255 IS TO
BE DEEMED THE MATERIAL EQUIVALENT OF SEC.  2244.  SEE SMITH V. UNITED
STATES, 106 U.S. APP. D.C. 169, 173, 270 F.2D 921, 925 (1959);
LONGSDORF, THE FEDERAL HABEAS CORPUS ACTS ORIGINAL AND AMENDED, 13
F.R.D. 407, 424 (1953).  WE ARE HELPED TO THIS CONCLUSION BY TWO
FURTHER CONSIDERATIONS. 

FIRST, THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY TO THE 1948
REVISION OF THE JUDICIAL CODE THAT CONGRESS INTENDED TO TREAT THE
PROBLEM OF SUCCESSIVE APPLICATIONS DIFFERENTLY UNDER HABEAS CORPUS THAN
UNDER THE NEW MOTION PROCEDURE; AND IT IS DIFFICULT TO SEE WHAT LOGICAL
OR PRACTICAL BASIS THERE COULD BE FOR SUCH A DISTINCTION. 

SECOND, EVEN ASSUMING THE CONSTITUTIONALITY OF INCORPORATING RES
JUDICATA IN SEC.  2255, SUCH A PROVISION WOULD PROBABLY PROVE TO BE
COMPLETELY INEFFECTUAL, IN LIGHT OF THE FURTHER PROVISION IN THE
THE REMEDY BY MOTION IS "INADEQUATE OR INEFFECTIVE."  A PRISONER BARRED
BY RES JUDICATA WOULD SEEM AS A CONSEQUENCE TO HAVE AN "INADEQUATE OR
INEFFECTIVE" REMEDY UNDER SEC. 2255 AND THUS BE ENTITLED TO PROCEED IN
FEDERAL HABEAS CORPUS - WHERE, OF COURSE, SEC. 2244 APPLIES.  SEE SMITH
V. UNITED STATES, SUPRA, 106 U.S. APP. D.C., AT 174, 270 F.2D, AT 926. 

                                       II. 

WE THINK THE JUDICIAL AND STATUTORY EVOLUTION OF THE PRINCIPLES
GOVERNING SUCCESSIVE APPLICATIONS FOR FEDERAL HABEAS CORPUS AND MOTIONS
UNDER SEC. 2255 HAS REACHED THE POINT AT WHICH THE FORMULATION OF BASIC
RULES TO GUIDE THE LOWER FEDERAL COURTS IS BOTH FEASIBLE AND
DESIRABLE.  COMPARE TOWNSEND V. SAIN, 372 U.S. 293, 310.  SINCE THE
MOTION PROCEDURE IS THE SUBSTANTIAL EQUIVALENT OF FEDERAL HABEAS
CORPUS, WE SEE NO NEED TO DIFFERENTIATE THE TWO FOR PRESENT PURPOSES. 
IT SHOULD BE NOTED THAT THESE RULES ARE NOT OPERATIVE IN CASES WHERE
THE SECOND OR SUCCESSIVE APPLICATION IS SHOWN, ON THE BASIS OF THE
APPLICATION, FILES, AND RECORDS OF THE CASE ALONE, CONCLUSIVELY TO BE
WITHOUT MERIT.  28 U.S.C. SECS. 2243, 2255.  IN SUCH A CASE THE
APPLICATION SHOULD BE DENIED WITHOUT A HEARING. 

A. SUCCESSIVE MOTIONS ON GROUNDS PREVIOUSLY HEARD AND DETERMINED. 

CONTROLLING WEIGHT MAY BE GIVEN TO DENIAL OF A PRIOR APPLICATION FOR
FEDERAL HABEAS CORPUS OR SEC. 2255 RELIEF (FN8) ONLY IF (1) THE SAME
GROUND PRESENTED IN THE SUBSEQUENT APPLICATION WAS DETERMINED ADVERSELY
TO THE APPLICANT ON THE PRIOR APPLICATION, (2) THE PRIOR DETERMINATION
WAS ON THE MERITS, AND (3) THE ENDS OF JUSTICE WOULD NOT BE SERVED BY
REACHING THE MERITS OF THE SUBSEQUENT APPLICATION. 

(1)  BY "GROUND," WE MEAN SIMPLY A SUFFICIENT LEGAL BASIS FOR
GRANTING THE RELIEF SOUGHT BY THE APPLICANT.  FOR EXAMPLE, THE
CONTENTION THAT AN INVOLUNTARY CONFESSION WAS ADMITTED IN EVIDENCE
AGAINST HIM IS A DISTINCT GROUND FOR FEDERAL COLLATERAL RELIEF.  BUT A
CLAIM OF INVOLUNTARY CONFESSION PREDICATED ON ALLEGED PSYCHOLOGICAL
COERCION DOES NOT RAISE A DIFFERENT "GROUND" THAN DOES ONE PREDICATED
ON ALLEGED PHYSICAL COERCION.  IN OTHER WORDS, IDENTICAL GROUNDS MAY
OFTEN BE PROVED BY DIFFERENT FACTUAL ALLEGATIONS.  SO ALSO, IDENTICAL
GROUNDS MAY OFTEN BE SUPPORTED BY DIFFERENT LEGAL ARGUMENTS, CF. WILSON
V. COOK, 327 U.S. 474, 481; DEWEY V. DES MOINES, 173 U.S. 193, 198, OR
BE COUCHED IN DIFFERENT LANGUAGE, UNITED STATES V. JONES, 194 F. SUPP.
421 (D.C.D. KAN. 1961)(DICTUM), AFF'D MEM., 297 F.2D 835 (C.A. 10TH
CIR. 1962), OR VARY IN IMMATERIAL RESPECTS, STILWELL V. UNITED STATES
MARSHALS, 192 F.2D 853 (C.A. 4TH CIR. 1951)(PER CURIAM).  SHOULD DOUBTS
ARISE IN PARTICULAR CASES AS TO WHETHER TWO GROUNDS ARE DIFFERENT OR
THE SAME, THEY SHOULD BE RESOLVED IN FAVOR OF THE APPLICANT. 

(2)  THE PRIOR DENIAL MUST HAVE RESTED ON AN ADJUDICATION OF THE
MERITS OF THE GROUND PRESENTED IN THE SUBSEQUENT APPLICATION.  SEE
HOBBS V. PEPERSACK, 301 F.2D 875 (C.A. 4TH CIR. 1962).  THIS MEANS THAT
IF FACTUAL ISSUES WERE RAISED IN THE PRIOR APPLICATION, AND IT WAS NOT
DENIED ON THE BASIS THAT THE FILES AND RECORDS CONCLUSIVELY RESOLVED
THESE ISSUES, AN EVIDENTIARY HEARING WAS HELD.  SEE MOTLEY V. UNITED
STATES, 230 F.2D 110 (C.A. 5TH CIR. 1956); HALLOWELL V. UNITED STATES,
197 F.2D 926 (C.A. 5TH CIR. 1952). 

(3)  EVEN IF THE SAME GROUND WAS REJECTED ON THE MERITS ON A PRIOR
APPLICATION, IT IS OPEN TO THE APPLICANT TO SHOW THAT THE ENDS OF
JUSTICE WOULD BE SERVED BY PERMITTING THE REDETERMINATION OF THE
GROUND.  IF FACTUAL ISSUES ARE INVOLVED, THE APPLICANT IS ENTITLED TO A
NEW HEARING UPON SHOWING THAT THE EVIDENTIARY HEARING ON THE PRIOR
APPLICATION WAS NOT FULL AND FAIR; WE CANVASSED THE CRITERIA OF A FULL
AND FAIR EVIDENTIARY HEARING RECENTLY IN TOWNSEND V. SAIN, SUPRA, AND
THAT DISCUSSION NEED NOT BE REPEATED HERE.  IF PURELY LEGAL QUESTIONS
ARE INVOLVED, THE APPLICANT MAY BE ENTITLED TO A NEW HEARING UPON
SHOWING AN INTERVENING CHANGE IN THE LAW OR SOME OTHER JUSTIFICATION
FOR HAVING FAILED TO RAISE A CRUCIAL POINT OR ARGUMENT IN THE PRIOR
APPLICATION.  TWO FURTHER POINTS SHOULD BE NOTED.  FIRST, THE FOREGOING
ENUMERATION IS NOT INTENDED TO BE EXHAUSTIVE; THE TEST IS "THE ENDS OF
JUSTICE" AND IT CANNOT BE TOO FINELY PARTICULARIZED.  SECOND, THE
BURDEN IS ON THE APPLICANT TO SHOW THAT, ALTHOUGH THE GROUND OF THE NEW
APPLICATION WAS DETERMINED AGAINST HIM ON THE MERITS ON A PRIOR
APPLICATION, THE ENDS OF JUSTICE WOULD BE SERVED BY A REDETERMINATION
OF THE GROUND. 

B. THE SUCCESSIVE APPLICATION CLAIMED TO BE AN ABUSE OF REMEDY. 

NO MATTER HOW MANY PRIOR APPLICATIONS FOR FEDERAL COLLATERAL RELIEF A
PRISONER HAS MADE, THE PRINCIPLE ELABORATED IN SUBPART A, SUPRA, CANNOT
APPLY IF A DIFFERENT GROUND IS PRESENTED BY THE NEW APPLICATION.  SO
TOO, IT CANNOT APPLY IF THE SAME GROUND WAS EARLIER PRESENTED BUT NOT
ADJUDICATED ON THE MERITS.  IN EITHER CASE, FULL CONSIDERATION OF THE
MERITS OF THE NEW APPLICATION CAN BE AVOIDED ONLY IF THERE HAS BEEN AN
ABUSE OF THE WRIT OR MOTION REMEDY; AND THIS THE GOVERNMENT HAS THE
BURDEN OF PLEADING.  SEE P. 11, SUPRA. 

TO SAY THAT IT IS OPEN TO THE RESPONDENT TO SHOW THAT A SECOND OR
SUCCESSIVE APPLICATION IS ABUSIVE IS SIMPLY TO RECOGNIZE THAT "HABEAS
CORPUS HAS TRADITIONALLY BEEN REGARDED AS GOVERNED BY EQUITABLE
PRINCIPLES.  UNITED STATES EX REL. SMITH V. BALDI, 344 U.S. 561, 573
(DISSENTING OPINION).   AMONG THEM IS THE PRINCIPLE THAT A SUITOR'S
CONDUCT IN RELATION TO THE MATTER AT HAND MAY DISENTITLE HIM TO THE
RELIEF HE SEEKS.  NARROWLY CIRCUMSCRIBED, IN CONFORMITY TO THE
HISTORICAL ROLE OF THE WRIT OF HABEAS CORPUS AS AN EFFECTIVE AND
IMPERATIVE REMEDY FOR DETENTIONS CONTRARY TO FUNDAMENTAL LAW, THE
PRINCIPLE IS UNEXCEPTIONABLE."  FAY V. NOIA, SUPRA, AT 438.  THUS, FOR
EXAMPLE, IF A PRISONER DELIBERATELY WITHHOLDS ONE OF TWO GROUNDS FOR
FEDERAL COLLATERAL RELIEF AT THE TIME OF FILING HIS FIRST APPLICATION,
IN THE HOPE OF BEING GRANTED TWO HEARINGS RATHER THAN ONE OR FOR SOME
OTHER SUCH REASON, HE MAY BE DEEMED TO HAVE WAIVED HIS RIGHT TO A
HEARING ON A SECOND APPLICATION PRESENTING THE WITHHELD GROUND.  THE
SAME MAY BE TRUE IF, AS IN WONG DOO, THE PRISONER DELIBERATELY ABANDONS
ONE OF HIS GROUNDS AT THE FIRST HEARING.  NOTHING IN THE TRADITIONS OF
HABEAS CORPUS REQUIRES THE FEDERAL COURTS TO TOLERATE NEEDLESS
PIECEMEAL LITIGATION, OR TO ENTERTAIN COLLATERAL PROCEEDINGS WHOSE ONLY
PURPOSE IS TO VEX, HARASS, OR DELAY. 

WE NEED NOT PAUSE OVER THE TEST GOVERNING WHETHER A SECOND OR
SUCCESSIVE APPLICATION MAY BE DEEMED AN ABUSE BY THE PRISONER OF THE
WRIT OR MOTION REMEDY.  THE COURT'S RECENT OPINIONS IN FAY V. NOIA,
SUPRA, AT 438-440, AND TOWNSEND V. SAIN, SUPRA, AT 317, DEAL AT LENGTH
WITH THE CIRCUMSTANCES UNDER WHICH A PRISONER MAY BE FORECLOSED FROM
FEDERAL COLLATERAL RELIEF.  THE PRINCIPLES DEVELOPED IN THOSE DECISIONS
GOVERN EQUALLY HERE.    A FINAL QUALIFICATION, APPLICABLE TO BOTH A AND
B OF THE FOREGOING DISCUSSION, IS IN ORDER.  THE PRINCIPLES GOVERNING
BOTH JUSTIFICATIONS FOR DENIAL OF A HEARING ON A SUCCESSIVE APPLICATION
ARE ADDRESSED TO THE SOUND DISCRETION OF THE FEDERAL TRIAL JUDGES. 
THEIRS IS THE MAJOR RESPONSIBILITY FOR THE JUST AND SOUND
ADMINISTRATION OF THE FEDERAL COLLATERAL REMEDIES, AND THEIRS MUST BE
THE JUDGMENT AS TO WHETHER A SECOND OR SUCCESSIVE APPLICATION SHALL BE
DENIED WITHOUT CONSIDERATION OF THE MERITS.  EVEN AS TO SUCH AN
APPLICATION, THE FEDERAL JUDGE CLEARLY HAS THE POWER - AND, IF THE ENDS
OF JUSTICE DEMAND, THE DUTY - TO REACH THE MERITS.  CF. TOWNSEND V.
SAIN, SUPRA, AT 312, 318.  WE ARE CONFIDENT THAT THIS POWER WILL BE
SOUNDLY APPLIED. 

                                 III. 

APPLICATION OF THE FOREGOING PRINCIPLES TO THE INSTANT CASE PRESENTS
NO DIFFICULTIES.  PETITIONER'S FIRST MOTION UNDER SEC. 2255 WAS DENIED
BECAUSE IT STATED ONLY BALD LEGAL CONCLUSIONS WITH NO SUPPORTING
FACTUAL ALLEGATIONS.  THE COURT HAD THE POWER TO DENY THE MOTION ON
THIS GROUND, SEE WILKINS V. UNITED STATES, 103 U.S. APP.  D.C. 322, 258
F.2D 416 (C.A.D.C. CIR. 1958), ALTHOUGH THE BETTER COURSE MIGHT HAVE
BEEN TO DIRECT PETITIONER TO AMEND HIS MOTION, SEE STEPHENS V. UNITED
STATES, 246 F.2D 607 (C.A. 10TH CIR. 1957)(PER CURIAM).  BUT THE
DENIAL, THUS BASED, WAS NOT ON THE MERITS.  IT WAS MERELY A RULING THAT
PETITIONER'S PLEADING WAS DEFICIENT.  TO BE SURE, THE DISTRICT JUDGE
STATED IN A FOOTNOTE TO HIS MEMORANDUM:  "THE COURT HAS REVIEWED THE
ENTIRE FILE  ...  WHICH INCLUDES THE PREVIOUS PROCEEDING, AND A
TRANSCRIPT OF THE PROCEEDINGS AT THE TIME PETITIONER ENTERED HIS PLEA,
AND  ...  IS OF THE VIEW THAT PETITIONER'S COMPLAINTS ARE WITHOUT MERIT
IN FACT."  BUT THE "FILES AND RECORDS OF THE CASE," INCLUDING THE
TRANSCRIPT, COULD NOT "CONCLUSIVELY SHOW" THAT THE CLAIM ALLEGED IN THE
SECOND MOTION ENTITLED THE PETITIONER TO NO RELIEF.  THE CRUCIAL
ALLEGATION OF THE SECOND MOTION WAS THAT PETITIONER'S ALLEGED MENTAL
INCOMPETENCY WAS THE RESULT OF ADMINISTRATION OF NARCOTIC DRUGS DURING
THE PERIOD PETITIONER WAS HELD IN THE SACRAMENTO COUNTY JAIL PENDING
TRIAL IN THE INSTANT CASE.  HOWEVER REGULAR THE PROCEEDINGS AT WHICH HE
SIGNED A WAIVER OF INDICTMENT, DECLINED ASSISTANCE OF COUNSEL, AND
PLEADED GUILTY MIGHT APPEAR FROM THE TRANSCRIPT, IT STILL MIGHT BE THE
CASE THAT PETITIONER DID NOT MAKE AN INTELLIGENT AND UNDERSTANDING
WAIVER OF HIS CONSTITUTIONAL RIGHTS.  SEE MACHIBRODA V. UNITED STATES,
368 U.S. 487; MOORE V. MICHIGAN, 355 U.S. 155; PENNSYLVANIA EX REL.
HERMAN V. CLAUDY, 350 U.S. 116; TAYLOR V. UNITED STATES, 193 F.2D 411
(C.A. 10TH CIR. 1952).  CF. VON MOLTKE V. GILLIES, 332 U.S. 708.  FOR
THE FACTS ON WHICH PETITIONER'S CLAIM IN HIS SECOND APPLICATION IS
PREDICATED ARE OUTSIDE THE RECORD.  THIS IS SO EVEN THOUGH THE JUDGE
WHO PASSED ON THE TWO MOTIONS WAS THE SAME JUDGE WHO PRESIDED AT THE
HEARING AT WHICH PETITIONER MADE THE WAIVERS, AND THE LATER HEARING AT
WHICH HE WAS SENTENCED.  WHETHER OR NOT PETITIONER WAS UNDER THE
INFLUENCE OF NARCOTICS WOULD NOT NECESSARILY HAVE BEEN APPARENT TO THE
TRIAL JUDGE.  PETITIONER APPEARED BEFORE HIM WITHOUT COUNSEL AND BUT
BRIEFLY.  THAT THE JUDGE MAY HAVE THOUGHT THAT HE ACTED WITH
INTELLIGENCE AND UNDERSTANDING IN RESPONDING TO THE JUDGE'S INQUIRIES
CANNOT "CONCLUSIVELY SHOW," AS THE STATUTE REQUIRES, THAT THERE IS NO
MERIT IN HIS PRESENT CLAIM.  CF. MACHIBRODA V. UNITED STATES, SUPRA, AT
495.  IF ANYTHING, HIS REQUEST BEFORE SENTENCE THAT THE JUDGE SEND HIM
TO A HOSPITAL "FOR ADDICTION CURE" CUTS THE OTHER WAY.  MOREOVER, WE
ARE ADVISED IN THE GOVERNMENT'S BRIEF THAT THE PROBATION OFFICER'S
REPORT MADE TO THE JUDGE BEFORE SENTENCE (THE REPORT IS NOT PART OF THE
RECORD IN THIS COURT) DISCLOSED THAT PETITIONER RECEIVED MEDICAL
TREATMENT FOR WITHDRAWAL SYMPTOMS WHILE HE WAS IN JAIL PRIOR TO
SENTENCING. 

ON REMAND, A HEARING WILL BE REQUIRED.  THIS IS NOT TO SAY, HOWEVER,
THAT IT WILL AUTOMATICALLY BECOME NECESSARY TO PRODUCE PETITIONER AT
THE HEARING TO ENABLE HIM TO TESTIFY.  NOT EVERY COLORABLE ALLEGATION
ENTITLES A FEDERAL PRISONER TO A TRIP TO THE SENTENCING COURT. 
CONGRESS, RECOGNIZING THE ADMINISTRATIVE BURDEN INVOLVED IN THE
TRANSPORTATION OF PRISONERS TO AND FROM A HEARING IN THE SENTENCING
COURT, PROVIDED IN SEC. 2255 THAT THE APPLICATION MAY BE ENTERTAINED
AND DETERMINED "WITHOUT REQUIRING THE PRODUCTION OF THE PRISONER AT THE
HEARING."  THIS DOES NOT MEAN THAT A PRISONER CAN BE PREVENTED FROM
TESTIFYING IN SUPPORT OF A SUBSTANTIAL CLAIM WHERE HIS TESTIMONY WOULD
BE MATERIAL.  HOWEVER, WE THINK IT CLEAR THAT THE SENTENCING COURT HAS
DISCRETION TO ASCERTAIN WHETHER THE CLAIM IS SUBSTANTIAL BEFORE
GRANTING A FULL EVIDENTIARY HEARING.  IN THIS CONNECTION, THE
SENTENCING COURT MIGHT FIND IT USEFUL TO APPOINT COUNSEL TO REPRESENT
THE APPLICANT.  CF. COPPEDGE V. UNITED STATES, 369 U.S. 438, 446. 
ALSO, IT WILL BE OPEN TO THE RESPONDENT TO ATTEMPT TO SHOW THAT
PETITIONER'S FAILURE TO CLAIM MENTAL INCOMPETENCY IN HIS FIRST MOTION
WAS AN ABUSE OF THE MOTION REMEDY, WITHIN THE PRINCIPLES OF WONG DOO
AND PRICE V. JOHNSTON, DISENTITLING HIM TO A HEARING ON THE MERITS.  WE
LEAVE TO THE DISTRICT COURT, IN ITS SOUND DISCRETION, THE QUESTION
WHETHER THE ISSUE OF ABUSE OF THE MOTION REMEDY, IF ADVANCED BY
RESPONDENT, OR THE ISSUE ON THE MERITS, CAN UNDER THE CIRCUMSTANCES BE
TRIED WITHOUT HAVING THE PRISONER PRESENT.  AS WE SAID ONLY LAST TERM: 

"WHAT HAS BEEN SAID IS NOT TO IMPLY THAT A MOVANT (UNDER SEC. 2255)
MUST ALWAYS BE ALLOWED TO APPEAR IN A DISTRICT COURT FOR A FULL HEARING
IF THE RECORD DOES NOT CONCLUSIVELY AND EXPRESSLY BELIE HIS CLAIM, NO
MATTER HOW VAGUE, CONCLUSORY, OR PALPABLY INCREDIBLE HIS ALLEGATIONS
MAY BE. THE LANGUAGE OF THE STATUTE DOES NOT STRIP THE DISTRICT COURTS
OF ALL DISCRETION TO EXERCISE THEIR COMMON SENSE.  INDEED, THE STATUTE
ITSELF RECOGNIZES THAT THERE ARE TIMES WHEN ALLEGATIONS OF FACTS
OUTSIDE THE RECORD CAN BE FULLY INVESTIGATED WITHOUT REQUIRING THE
PERSONAL PRESENCE OF THE PRISONER.  WHETHER THE PETITION IN THE PRESENT
CASE CAN APPROPRIATELY BE DISPOSED OF WITHOUT THE PRESENCE OF THE
PETITIONER AT THE HEARING IS A QUESTION TO BE RESOLVED IN THE FURTHER
PROCEEDINGS IN THE DISTRICT COURT. 

"THERE WILL ALWAYS BE MARGINAL CASES, AND THIS CASE IS NOT FAR FROM
THE LINE.  BUT THE SPECIFIC AND DETAILED FACTUAL ASSERTIONS OF THE
PETITIONER, WHILE IMPROBABLE, CANNOT AT THIS JUNCTURE BE SAID TO BE
INCREDIBLE.  IF THE ALLEGATIONS ARE TRUE, THE PETITIONER IS CLEARLY
ENTITLED TO RELIEF  ... ."  MACHIBRODA V. UNITED STATES, SUPRA, AT 495
496. 

THE NEED FOR GREAT CARE IN CRIMINAL COLLATERAL PROCEDURE IS WELL
EVIDENCED BY THE INSTANT CASE.  PETITIONER WAS ADJUDGED GUILTY OF A
CRIME CARRYING A HEAVY PENALTY IN A SUMMARY PROCEEDING AT WHICH HE WAS
NOT REPRESENTED BY COUNSEL.  VERY POSSIBLY, THE PROCEEDING WAS
CONSTITUTIONALLY ADEQUATE.  BUT BY ITS SUMMARY NATURE, AND BECAUSE
DEFENDANT WAS UNREPRESENTED BY COUNSEL, A PRESUMPTION OF ADEQUACY IS
OBVIOUSLY LESS COMPELLING THAN IT WOULD BE HAD THERE BEEN A FULL
CRIMINAL TRIAL.  MOREOVER, THE NATURE OF THE PROCEEDING WAS SUCH AS TO
PRECLUDE DIRECT APPELLATE REVIEW.  IN SUCH A CASE IT IS IMPERATIVE THAT
A FAIR OPPORTUNITY FOR COLLATERAL RELIEF BE AFFORDED.  AN APPLICANT FOR
SUCH RELIEF OUGHT NOT TO BE HELD TO THE NICETIES OF LAWYERS' PLEADINGS
OR BE CURSORILY DISMISSED BECAUSE HIS CLAIM SEEMS UNLIKELY TO PROVE
MERITORIOUS.  THAT HIS APPLICATION IS VEXATIOUS OR REPETITOUS, OR THAT
HIS CLAIM LACKS ANY SUBSTANCE, MUST BE FAIRLY DEMONSTRATED. 

FINALLY, WE REMARK THAT THE IMAGINATIVE HANDLING OF A PRISONER'S
FIRST MOTION WOULD IN GENERAL DO MUCH TO ANTICIPATE AND AVOID THE
PROBLEM OF A HEARING ON A SECOND OR SUCCESSIVE MOTION.  THE JUDGE IS
NOT REQUIRED TO LIMIT HIS DECISION ON THE FIRST MOTION TO THE GROUNDS
NARROWLY ALLEGED, OR TO DENY THE MOTION OUT OF HAND BECAUSE THE
ALLEGATIONS ARE VAGUE, CONCLUSIONAL, OR INARTISTICALLY EXPRESSED.  HE
IS FREE TO ADOPT ANY APPROPRIATE MEANS FOR INQUIRY INTO THE LEGALITY OF
THE PRISONER'S DETENTION IN ORDER TO ASCERTAIN ALL POSSIBLE GROUNDS
UPON WHICH THE PRISONER MIGHT CLAIM TO BE ENTITLED TO RELIEF. 
CERTAINLY SUCH AN INQUIRY SHOULD BE MADE IF THE JUDGE GRANTS A HEARING
ON THE FIRST MOTION AND ALLOWS THE PRISONER TO BE PRESENT.  THE
DISPOSITION OF ALL GROUNDS FOR RELIEF ASCERTAINED IN THIS WAY MAY THEN
BE SPREAD ON THE FILES AND RECORDS OF THE CASE.  OF COURSE, TO THE
EXTENT THE FILES AND RECORDS "CONCLUSIVELY SHOW" THAT THE PRISONER IS
ENTITLED TO NO RELIEF ON ANY SUCH GROUNDS, NO HEARING ON A SECOND OR
SUCCESSIVE MOTION, TO THE EXTENT OF SUCH GROUNDS, WOULD BE NECESSARY. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR A HEARING CONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  SECTION 2255 PROVIDES: 

"A PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED BY ACT
OF CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND THAT THE
SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE
UNITED STATES, OR THAT THE COURT WAS WITHOUT JURISDICTION TO IMPOSE
SUCH SENTENCE, OR THAT THE SENTENCE WAS IN EXCESS OF THE MAXIMUM
AUTHORIZED BY LAW, OR IS OTHERWISE SUBJECT TO COLLATERAL ATTACK, MAY
MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE. 

"A MOTION FOR SUCH RELIEF MAY BE MADE AT ANY TIME. 

"UNLESS THE MOTION AND THE FILES AND RECORDS OF THE CASE CONCLUSIVELY
SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF, THE COURT SHALL CAUSE
NOTICE THEREOF TO BE SERVED UPON THE UNITED STATES ATTORNEY, GRANT A
PROMPT HEARING THEREON, DETERMINE THE ISSUES AND MAKE FINDINGS OF FACT
AND CONCLUSIONS OF LAW WITH RESPECT THERETO.  IF THE COURT FINDS THAT
THE JUDGMENT WAS RENDERED WITHOUT JURISDICTION, OR THAT THE SENTENCE
IMPOSED WAS NOT AUTHORIZED BY LAW OR OTHERWISE OPEN TO COLLATERAL
ATTACK, OR THAT THERE HAS BEEN SUCH A DENIAL OR INFRINGEMENT OF THE
CONSTITUTIONAL RIGHTS OF THE PRISONER AS TO RENDER THE JUDGMENT
VULNERABLE TO COLLATERAL ATTACK, THE COURT SHALL VACATE AND SET THE
JUDGMENT ASIDE AND SHALL DISCHARGE THE PRISONER OR RESENTENCE HIM TO
GRANT A NEW TRIAL OR CORRECT THE SENTENCE AS MAY APPEAR APPROPRIATE. 

"A COURT MAY ENTERTAIN AND DETERMINE SUCH MOTION WITHOUT REQUIRING
THE PRODUCTION OF THE PRISONER AT THE HEARING. 

"THE SENTENCING COURT SHALL NOT BE REQUIRED TO ENTERTAIN A SECOND OR
SUCCESSIVE MOTION FOR SIMILAR RELIEF ON BEHALF OF THE SAME PRISONER. 

"AN APPEAL MAY BE TAKEN TO THE COURT OF APPEALS FROM THE ORDER
ENTERED ON THE MOTION AS FROM A FINAL JUDGMENT ON APPLICATION FOR A
WRIT OF HABEAS CORPUS. 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PRISONER
WHO IS AUTHORIZED TO APPLY FOR RELIEF BY MOTION PURSUANT TO THIS
FAILED TO APPLY FOR RELIEF, BY MOTION, TO THE COURT WHICH SENTENCED
HIM, OR THAT SUCH COURT HAS DENIED HIM RELIEF, UNLESS IT ALSO APPEARS
THAT THE REMEDY BY MOTION IS INADEQUATE OR INEFFECTIVE TO TEST THE
LEGALITY OF HIS DETENTION." 

FN2  PETITIONER MAKES NO CLAIM THAT THE PROCEDURE EMPLOYED BY THE
DISTRICT COURT WAS NOT ADEQUATE TO ADVISE HIM OF HIS CONSTITUTIONAL
RIGHTS TO ASSISTANCE OF COUNSEL, GRAND JURY INDICTMENT, AND TRIAL BY
JURY. 

FN3  "THIS CASE HAS ALREADY BEEN BEFORE THE COURT OF QUEEN'S BENCH,
ON THE RETURN OF A HABEAS CORPUS, AND BEFORE MY LORD CHIEF BARON AT
CHAMBERS, ON A SUBSEQUENT APPLICATION FOR A SIMILAR WRIT.  IN BOTH
INSTANCES THE DISCHARGE WAS REFUSED.  THE DEFENDANT, HOWEVER, HAS A
RIGHT TO THE OPINION OF EVERY COURT AS TO THE PROPRIETY OF HIS
IMPRISONMENT, AND THEREFORE WE HAVE THOUGHT IT PROPER TO EXAMINE
ATTENTIVELY THE PROVISIONS OF THE STATUTE, WITHOUT CONSIDERING
OURSELVES AS CONCLUDED BY THESE DECISIONS."  EX PARTE PARTINGTON,
SUPRA, 13 M.&W., AT 683-684, 153 ENG. REP., AT 286. 

FN4  SEE ALSO CHURCH, SUPRA, SEC. 389.  THE TRADITIONAL ENGLISH
PRACTICE HAS RECENTLY BEEN CURTAILED BY STATUTE.  ADMINISTRATION OF
JUSTICE ACT, 1960, 8 & 9 ELIZ.  II, C. 65, SEC. 14(2). 

FN5  SECTION 2244 PROVIDES: 

"NO CIRCUIT OR DISTRICT JUDGE SHALL BE REQUIRED TO ENTERTAIN AN
APPLICATION FOR A WRIT OF HABEAS CORPUS TO INQUIRE INTO THE DETENTION
OF A PERSON PURSUANT TO A JUDGMENT OF A COURT OF THE UNITED STATES, OR
OF ANY STATE, IF IT APPEARS THAT THE LEGALITY OF SUCH DETENTION HAS
BEEN DETERMINED BY A JUDGE OR COURT OF THE UNITED STATES ON A PRIOR
APPLICATION FOR A WRIT OF HABEAS CORPUS AND THE PETITION PRESENTS NO
NEW GROUND NOT THERETOFORE PRESENTED AND DETERMINED, AND THE JUDGE OR
COURT IS SATISFIED THAT THE ENDS OF JUSTICE WILL NOT BE SERVED BY SUCH
INQUIRY." 

FN6  ARTICLE I, SEC. 9, CL. 2, OF THE FEDERAL CONSTITUTION PROVIDES:
"THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED,
UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC SAFETY MAY
REQUIRE IT." 

FN7  THE COURT OF APPEALS IN HAYMAN HAD HELD SEC. 2255
UNCONSTITUTIONAL.  187 F.2D 456 (C.A. 9TH CIR. 1950), AMENDED, ID., AT
471 (1951).  THE SAME POSITION HAD BEEN TAKEN IN A NOTE IN THE YALE LAW
JOURNAL, "SECTION 2255 OF THE JUDICIAL CODE:  THE THREATENED DEMISE OF
HABEAS CORPUS," 59 YALE L.J. 1183 (1950).  IN THIS COURT, A POWERFUL
CONSTITUTIONAL ATTACK WAS MOUNTED BY RESPONDENT'S ASSIGNED COUNSEL, MR.
PAUL A. FREUND. 

FN8  THE DISCUSSION IN THIS OPINION RELATES, OF COURSE, SOLELY TO THE
PROBLEM OF SUCCESSIVE APPLICATIONS FOR FEDERAL COLLATERAL RELIEF.  FOR
THE PRINCIPLES WHICH GOVERN WHERE THE PRIOR APPLICATION IS NOT FOR
FEDERAL COLLATERAL RELIEF, SEE FAY V. NOIA, SUPRA, AND TOWNSEND, V.
SAIN, SUPRA. 

MR. JUSTICE WHITE CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING.    THIS
CASE, TOGETHER WITH TOWNSEND V. SAIN, 372 U.S. 293, AND FAY V. NOIA,
372 U.S. 391, FORM A TRILOGY OF "GUIDELINE" DECISIONS IN WHICH THE
COURT HAS UNDERTAKEN TO RESTATE THE RESPONSIBILITIES OF THE FEDERAL
COURTS IN FEDERAL POST-CONVICTION PROCEEDINGS.  SAIN AND NOIA RELATE TO
FEDERAL HABEAS CORPUS PROCEEDINGS ARISING OUT OF STATE CRIMINAL
CONVICTIONS.  THE PRESENT CASE INVOLVES SUCCESSIVE SEC. 2255
APPLICATIONS (AND SIMILAR HABEAS CORPUS PROCEEDINGS UNDER SEC. 2244,
WHICH THE COURT FINDS SETS THE PATTERN FOR SEC. 2255) ARISING OUT OF
FEDERAL CONVICTIONS. 

THE OVER-ALL EFFECT OF THIS TRILOGY OF PRONOUNCEMENTS IS TO RELEGATE
TO A BACK SEAT, AS IT AFFECTS STATE AND FEDERAL CRIMINAL CASES FINDING
THEIR WAY INTO FEDERAL POST-CONVICTION PROCEEDINGS, THE PRINCIPLE THAT
THERE MUST BE SOME END TO LITIGATION. 

WHILE, CONTRARY TO THE COURT, I THINK THE DISTRICT COURT'S DENIAL
WITHOUT HEARING OF A SECOND SEC. 2255 APPLICATION IN THIS CASE WAS
ENTIRELY PROPER IN THE CIRCUMSTANCES SHOWN BY THE RECORD, THE MORE
SERIOUS ASPECT OF THE COURT'S OPINION IS THE IMPACT IT IS LIKELY TO
HAVE IN CURBING THE ABILITY OF THE FEDERAL DISTRICT COURTS TO COPE
EFFICIENTLY, AS WELL AS FAIRLY, WITH SUCCESSIVE APPLICATIONS BY FEDERAL
PRISONERS, (FN1) THE NUMBER OF WHICH WILL DOUBTLESS INCREASE AS A
RESULT OF WHAT IS SAID TODAY.  THE NET OF IT IS THAT THE COURT HAS COME
FORTH WITH A NEW SEC. 2255 OF ITS OWN WHICH BEARS LITTLE RESEMBLANCE TO
THE STATUTE ENACTED BY CONGRESS.  AND IN THE PROCESS THE COURT HAS EVEN
GONE SO FAR AS TO SUGGEST THAT ANY TAMPERING WITH ITS NEW COMPOSITION
MAY RUN AFOUL OF THE CONSTITUTION. 

             I 

AT THE OUTSET, THERE IS ONE STRAW MAN THAT SHOULD BE REMOVED FROM
THIS CASE.  THE COURT IS AT GREAT PAINS TO DEVELOP THE THEME THAT
DENIAL OF A PRISONER'S APPLICATION FOR COLLATERAL RELIEF IS NOT RES
JUDICATA.  BUT THE GOVERNMENT RECOGNIZES, AS INDEED IT MUST IN VIEW OF
THE DECISIONS, THAT STRICT DOCTRINES OF RES JUDICATA DO NOT APPLY IN
THIS FIELD.  THE CONSEQUENCES OF INJUSTICE - LOSS OF LIBERTY AND
SOMETIMES LOSS OF LIFE - ARE FAR TOO GREAT TO PERMIT THE AUTOMATIC
APPLICATION OF AN ENTIRE BODY OF TECHNICAL RULES WHOSE PRIMARY
RELEVANCE LIES IN THE AREA OF CIVIL LITIGATION. 

THIS IS NOT TO SUGGEST, HOWEVER, THAT FINALITY, AS DISTINGUISHED FROM
THE PARTICULAR RULES OF RES JUDICATA, IS WITHOUT SIGNIFICANCE IN THE
CRIMINAL LAW.  BOTH THE INDIVIDUAL CRIMINAL DEFENDANT AND SOCIETY HAVE
AN INTEREST IN INSURING THAT THERE WILL AT SOME POINT BE THE CERTAINTY
THAT COMES WITH AN END TO LITIGATION, AND THAT ATTENTION WILL
ULTIMATELY BE FOCUSED NOT ON WHETHER A CONVICTION WAS FREE FROM ERROR
BUT RATHER ON WHETHER THE PRISONER CAN BE RESTORED TO A USEFUL PLACE IN
THE COMMUNITY.  IT IS WITH THIS INTEREST IN MIND, AS WELL AS THE DESIRE
TO AVOID CONFINEMENTS CONTRARY TO FUNDAMENTAL JUSTICE, THAT COURTS AND
LEGISLATURES HAVE DEVELOPED RULES GOVERNING THE AVAILABILITY OF
COLLATERAL RELIEF. 

THUS IT HAS LONG BEEN RECOGNIZED THAT NOT EVERY ERROR THAT MAY HAVE
OCCURRED AT A CRIMINAL TRIAL MAY BE RAISED IN COLLATERAL PROCEEDINGS. 
FOR MANY YEARS AFTER THE CONSTITUTION WAS ADOPTED, AND EVEN DOWN TO THE
PRESENT CENTURY, SUCH PROCEEDINGS WERE GENERALLY CONFINED TO MATTERS OF
PERSONAL AND SUBJECT MATTER JURISDICTION.  CF. FAY V. NOIA, 372 U.S.
391, 450-455 (DISSENTING OPINION OF THIS WRITER).  AND WHILE THE SCOPE
OF COLLATERAL REVIEW HAS EXPANDED TO COVER QUESTIONS OF THE KIND RAISED
BY PETITIONER HERE, THE COURT HAS CONSISTENTLY HELD THAT NEITHER HABEAS
CORPUS NOR ITS PRESENT FEDERAL COUNTERPART SEC. 2255 IS A SUBSTITUTE
FOR AN APPEAL.  SEE, E.G., SUNAL V. LARGE, 332 U.S.  174, HILL V.
UNITED STATES, 368 U.S. 424; SEE ALSO, E.G., FRANANO V. UNITED STATES,
303 F.2D 470. 

SIMILARLY, THE COURT HAS HELD THAT NOT ALL QUESTIONS THAT WERE OR
COULD HAVE BEEN RAISED IN AN INITIAL APPLICATION FOR COLLATERAL RELIEF
MUST NECESSARILY BE ENTERTAINED IF RAISED IN A SUCCESSIVE APPLICATION. 
A DISTRICT COURT, FOR EXAMPLE, HAS DISCRETION TO DENY A SUCCESSIVE
APPLICATION IF THE CLAIM ASSERTED WAS HEARD AND DETERMINED ON A PRIOR
APPLICATION, SALINGER V. LOISEL, 265 U.S. 224.  INDEED THE COURT HAS
STATED THAT IT WOULD BE AN ABUSE OF DISCRETION TO ENTERTAIN A SECOND
APPLICATION IF THE CLAIM RAISED HAD BEEN RAISED BEFORE, A HEARING HAD
BEEN HELD, AND NO PROOF IN SUPPORT OF THE CLAIM HAD BEEN OFFERED AT THE
HEARING.  WONG DOO V. UNITED STATES, 265 U.S. 239.  AND IN THE SAME
YEAR THAT SEC. 2255 WAS ADOPTED, THE DECISION IN PRICE V. JOHNSTON, 334
U.S. 266, MADE IT CLEAR THAT A SUCCESSIVE APPLICATION COULD BE DENIED
FOR ABUSE OF THE REMEDY EVEN IF THE PRISONER'S CLAIM HAD NOT BEEN
RAISED IN ANY PRIOR APPLICATION, UNLESS THERE WERE SOME ACCEPTABLE
EXCUSE FOR THE FAILURE TO DO SO. 

IT IS IN LIGHT OF THIS HISTORY THAT SEC. 2255, AND THE RELATED SEC.
2244, DEALING WITH SUCCESSIVE APPLICATIONS FOR WRITS OF HABEAS CORPUS,
MUST BE CONSIDERED.  CONCERN WITH EXISTING AND POTENTIAL ABUSE OF THE
REMEDY BY PRISONERS WHO MADE A PASTIME OF FILING COLLATERAL PROCEEDINGS
LED TO PROPOSALS THAT SUCCESSIVE APPLICATIONS FOR HABEAS CORPUS ON
GROUNDS PREVIOUSLY AVAILABLE WOULD BE WHOLLY BARRED, EXCEPT IN THE FORM
OF PETITIONS FOR REHEARING TO THE SAME JUDGE, AND THAT APPLICATIONS
UNDER WHAT BECAME SEC. 2255 WOULD HAVE TO BE SUBMITTED WITHIN ONE YEAR
AFTER DISCOVERY OF THE FACTS OR A CHANGE IN THE LAW.  E.G., H.R. 4232,
79TH CONG., 1ST SESS.; H.R. 6723, 79TH CONG., 2D SESS.  THESE PROPOSALS
WERE REJECTED IN FAVOR OF THE TRADITIONAL DISCRETION EXERCISED BY
COURTS WITH RESPECT TO SUCCESSIVE APPLICATIONS, AND IT WAS MADE CLEAR
THAT THIS DISCRETION EXTENDED TO A CASE IN WHICH AN APPLICANT ASSERTED
FOR THE FIRST TIME A GROUND THAT COULD HAVE BEEN RAISED BEFORE.  THUS
THE FINAL WORDING OF SEC. 2244 PROVIDED THAT THE COURT SHALL NOT BE
REQUIRED TO ENTERTAIN A PETITION: 

"  ...  IF IT APPEARS THAT THE LEGALITY OF SUCH DETENTION HAS BEEN
DETERMINED  ...  ON A PRIOR APPLICATION  ...  AND THE PETITION PRESENTS
NO NEW GROUND NOT THERETOFORE PRESENTED AND DETERMINED ...  ." 

THE WORD "NEW," A WORD IGNORED BY THE COURT IN ITS DISCUSSION OF THIS
PROVISION, IS OF CARDINAL IMPORTANCE.  A MEMORANDUM BY CIRCUIT JUDGE
STONE, ADOPTED IN A SENATE REPORT (S. REP. NO. 1527, 80TH CONG., 2D
SESS.), NOTED THAT TWO OF THE PURPOSES OF AN EARLIER VERSION OF THIS
PROVISION WERE "TO COMPEL PETITIONER TO STATE IN HIS PETITION ALL OF
THE GROUNDS FOR THE WRIT THEN KNOWN TO HIM" AND "TO AFFORD UNLIMITED
OPPORTUNITY TO PRESENT ANY GROUNDS WHICH PETITIONER MAY THEREAFTER
DISCOVER AT ANY TIME."  THIS LATTER PURPOSE WAS "BROUGHT ABOUT BY
ALLOWING PRESENTATION OF A SUBSEQUENT PETITION BASED UPON 'NEW' GROUNDS
'NOT THERETOFORE PRESENTED AND DETERMINED.'"  (FN2)  THUS A "NEW
GROUND," WITHIN THE MEANING OF SEC. 2224, IS ONE THAT HAS NOT
PREVIOUSLY BEEN ASSERTED AND HAD NOT PREVIOUSLY BEEN KNOWN.  THE COURT
IS MANIFESTLY IN ERROR IN ITS CONCLUSION, ANTE, PP. 11-13, THAT THE
DISCRETION PROVIDED FOR IN SEC. 2224 IS LIMITED TO PETITIONS RELYING ON
GROUNDS PREVIOUSLY HEARD AND DECIDED. 

ALTHOUGH THE WORDING OF SEC. 2255 IS MORE GENERAL, IT IS CLEARLY
DIRECTED TO THE SAME END: 

"THE SENTENCING COURT SHALL NOT BE REQUIRED TO ENTERTAIN A SECOND OR
SUCCESSIVE MOTION FOR SIMILAR RELIEF ON BEHALF OF THE SAME PRISONER." 

THE "RELIEF" SOUGHT IS THE SETTING ASIDE OF THE SENTENCE; THE STATUTE
CONTAINS NO REFERENCE TO THE NATURE OF THE GROUNDS URGED IN SUPPORT OF
THE MOTION, AND THERE CAN BE LITTLE DOUBT THAT THE DISCRETION VESTED IN
THE COURT WAS INTENDED TO EXTEND TO CASES IN WHICH A PARTICULAR GROUND
WAS URGED FOR THE FIRST TIME. 

FURTHER, IT WOULD APPEAR FROM THE LANGUAGE OF SEC. 2225 - THE
"SENTENCING COURT" IS NOT "REQUIRED TO ENTERTAIN" SUCCESSIVE MOTIONS -
THAT THE COURT WAS GIVEN DISCRETION TO DENY A SECOND MOTION, ON GROUNDS
OF ABUSE, ON ITS OWN INITIATIVE AND WITHOUT WAITING FOR THE GOVERNMENT
TO RAISE THE POINT IN ITS RETURN.  THE PROVISION, TO THIS EXTENT,
DEPARTED FROM THE RULE OF PLEADING DECLARED IN THE YEAR OF ITS ADOPTION
IN PRICE V. JOHNSTON, SUPRA, AT 292 - THAT IN HABEAS CORPUS
APPLICATIONS, "IT RESTS WITH THE GOVERNMENT TO MAKE THE CLAIM (OF
ABUSE) WITH CLARITY AND PARTICULARITY IN ITS RETURN TO THE ORDER TO
SHOW CAUSE."  SUCH A DEPARTURE WAS AMPLY JUSTIFIED BY THE FACT THAT ON
A SEC. 2225 MOTION, UNLIKE A HABEAS CORPUS APPLICATION, THE PRISONER'S
CLAIM IS PRESENTED TO THE SENTENCING COURT (USUALLY THE TRIAL JUDGE
HIMSELF), WHICH HAS READY ACCESS TO THE RECORD OF THE ORIGINAL
CONVICTION AND OF THE PRIOR MOTIONS.  MOREOVER, CONGRESS COULD
CERTAINLY HAVE REASONABLY CONCLUDED, AS DID THE DISSENTERS IN PRICE,
THAT: 

"IT IS NOT TOO MUCH TO ASK THE PETITIONER TO STATE, HOWEVER
INFORMALLY, THAT HIS  ...  PETITION IS BASED ON NEWLY DISCOVERED
MATTER, OR, IN ANY EVENT, ON A CLAIM THAT HE COULD NOT FAIRLY HAVE BEEN
ASKED TO BRING TO THE COURT'S ATTENTION IN HIS  ...  PRIOR PETITIONS. 
SUCH A REQUIREMENT CERTAINLY DOES NOT NARROW THE BROAD PROTECTION WHICH
THE WRIT  ...  SERVES."  334 U.S., AT 294.  (FN3) 

THE COURT IN PRICE HELD ONLY THAT THE BURDEN IS ON THE GOVERNMENT TO
PLEAD ABUSE OF THE WRIT; THE BURDEN OF PROVING AN ADEQUATE EXCUSE WAS
EXPLICITLY PLACED ON THE PRISONER: 

"ONCE A PARTICULAR ABUSE HAS BEEN ALLEGED, THE PRISONER HAS THE
BURDEN OF ANSWERING THAT ALLEGATION AND OF PROVING THAT HE HAS NOT
ABUSED THE WRIT."  334 U.S., AT 292. 

THE COURT TODAY, HOWEVER, LEAVES THE CRUCIAL QUESTION OF BURDEN OF
PROOF UP IN THE AIR.  IF IT MEANS TO SUGGEST THAT THIS BURDEN ALSO
RESTS WITH THE GOVERNMENT, THEN IT IS GOING FAR BEYOND THE HOLDING OF
THE SHARPLY DIVIDED COURT IN PRICE.  THE RELEVANT FACTS ON THE QUESTION
OF ABUSE WOULD ALMOST ALWAYS LIE WITHIN THE EXCLUSIVE POSSESSION OF THE
PRISONER, AND ANY EVIDENTIARY BURDEN PLACED ON THE GOVERNMENT WOULD
THEREFORE BE ONE THAT IT COULD SELDOM MEET. 

IT IS STARTLING ENOUGH THAT THE GOVERNMENT MAY NOW BE REQUIRED TO
ESTABLISH, IN A COLLATERAL ATTACK ON A PRIOR CONVICTION, THAT A
SUCCESSIVE APPLICATION IS AN ABUSE OF THE REMEDY.  IT IS AT LEAST
EQUALLY STARTLING TO LEARN THAT THE QUESTION WHETHER OR NOT THERE HAS
BEEN ABUSE OF THE REMEDY MAY TURN ON WHETHER THE PRISONER HAD
"DELIBERATELY" ABANDONED IT AT SOME EARLIER STAGE.  ANTE, P. 18.  THE
ESTABLISHED CONCEPT OF INEXCUSABLE NEGLECT IS APPARENTLY IN THE PROCESS
OF BEING ENTIRELY ELIMINATED FROM THE CRIMINAL LAW, CF. FAY V. NOIA,
372 U.S. 391, AND THE STANDARD THAT SEEMS TO BE TAKING ITS PLACE WILL,
I AM AFRAID, PROVE WHOLLY INADEQUATE AND IN THE LONG RUN WHOLLY
UNSATISFACTORY. 

I MUST ALSO PROTEST THE IMPLICATION IN THE COURT'S OPINION THAT EVERY
DECISION OF THIS COURT IN THE FIELD OF HABEAS CORPUS - EVEN ONE LIKE
PRICE V. JOHNSTON, DEALING WITH A PURELY PROCEDURAL QUESTION ON WHICH
REASONABLE MEN SURELY MAY DIFFER - HAS BECOME ENSHRINED IN THE
CONSTITUTION BECAUSE OF THE GUARANTEE IN ARTICLE I AGAINST SUSPENSION
OF THE WRIT.  THIS MATTER MAY PERHAPS BE BROUGHT BACK INTO PROPER
PERSPECTIVE BY NOTING AGAIN THAT AT THE TIME OF THE ADOPTION OF THE
CONSTITUTION, AND FOR MANY YEARS AFTERWARD, A CLAIM OF THE KIND
ASSERTED BY PRICE, OR ASSERTED BY PETITIONER, WAS NOT COGNIZABLE IN
HABEAS CORPUS AT ALL.  SEE P. 25, SUPRA.

      II. 

AND THE HISTORY OF THE RELATED PROVISION SEC. 2244, IS SURELY DESIGNED
TO VEST IN THE DISTRICT COURT A SOUND DISCRETION TO DENY A SUCCESSIVE
MOTION, ON ITS OWN INITIATIVE, FOR ABUSE OF THE REMEDY.  AT THE VERY
LEAST, THIS EXERCISE OF DISCRETION SHOULD BE UPHELD IN A CASE IN WHICH
THERE HAS BEEN NO ADEQUATE EXPLANATION OF THE EARLIER FAILURE TO MAKE
THE CLAIM AND IN WHICH THE WHOLE RECORD, INCLUDING THAT OF THE PRIOR
MOTION, CASTS SUBSTANTIAL DOUBTS ON THE MERIT OF THAT CLAIM.  THIS IS
SUCH A CASE. 

IN THE AFFIDAVIT FILED IN SUPPORT OF HIS SECOND MOTION, THE
PETITIONER ASSERTED THAT HE "DID NOT UNDERSTAND TRIAL PROCEEDING OWING
TO HIS MENTAL INCOMPETENCY CAUSED BY THE ADMINISTRATION OF A DRUG." 
THE JUDGE WHO DENIED THIS MOTION WAS THE SAME JUDGE WHO PRESIDED AT THE
TRIAL, AND THE RECORD NOT ONLY SHOWS THAT THE JUDGE TOOK PAINS TO MAKE
CERTAIN SANDERS WAS AWARE OF ALL OF HIS RIGHTS BUT ALSO INDICATES THAT
SANDERS DID INDEED UNDERSTAND THE NATURE OF THE PROCEEDINGS.  AFTER THE
JUDGE EXPLAINED AT SOME LENGTH SANDERS' RIGHT TO FORCE THE GOVERNMENT
TO PROCEED BY INDICTMENT, THE FOLLOWING QUESTIONS WERE ADKED: 

"HAVING IN MIND ALL THAT I HAVE TOLD YOU DO YOU WISH TO HAVE THE
MATTER HEARD BY THE GRAND JURY? 

"THE DEFENDANT.  NO, YOUR HONOR, I WAIVE IT. 

"THE COURT.  I DIDN'T HEAR THAT. 

"THE DEFENDANT.  I WAIVE THAT RIGHT. 

"THE COURT.  YOU WAIVE THAT RIGHT? 

"THE DEFENDANT.  YES. 

"THE COURT.  YOU UNDERSTAND YOU DO HAVE THE RIGHT, THOUGH? 

"THE DEFENDANT.  YES. 

"THE COURT.  AND YOU NOW WANT TO PROCEED WITHOUT INDICTMENT AND BY
WAY OF INFORMATION? 

"THE DEFENDANT.  YES." 

IN RESPONSE TO FURTHER QUESTIONS, SANDERS SAID HE WAS ACTING FREELY
AND VOLUNTARILY.  HE THEN SIGNED A WAIVER OF INDICTMENT AND AFTER THE
INFORMATION WAS READ TO HIM, PLEADED GUILTY. 

SENTENCING FOLLOWED SOME THREE WEEKS AFTER, AND ABOUT ONE YEAR LATER
SANDERS FILED A SEC. 2255 MOTION ALLEGING, INTER ALIA, THAT THE COURT
HAD ALLOWED HIM TO BE "INTIMIDATED AND COERCED INTO ENTERING A PLEA
WITHOUT COUNSEL, AND ANY KNOWLEDGE OF THE CHARGES."  THIS MOTION WAS
DENIED ON THE MERITS, NOT SIMPLY FOR INSUFFICIENCY, THE TRIAL JUDGE
CORRECTLY STATING THAT THE CHARGES WERE "COMPLETELY REFUTED BY THE
FILES AND RECORDS OF THIS CASE." 

THE MOTION BEFORE US NOW WAS FILED SOME NINE MONTHS AFTER THE
INTITIAL APPLICATION.  IN ADDITION TO COMMENTING THAT HE WAS "NOT
REQUIRED TO ENTERTAIN A SECOND MOTION FOR SIMILAR RELIEF," THE TRIAL
JUDGE SAID THAT HE HAD "REVIEWED THE ENTIRE FILE" AND WAS "OF THE VIEW
THAT PETITIONER'S COMPLAINTS ARE WITHOUT MERIT IN FACT."  IN SUPPORT OF
THIS CONCLUSION, IN ADDITION TO WHATEVER INFERENCES THE JUDGE MAY
PROPERLY HAVE DRAWN FROM HIS OWN OBSERVATIONS OF SANDERS AT THE TRIAL,
THERE IS:    (1)  THE RECORD OF THE ORIGINAL TRIAL, WHICH STRONGLY
INDICATES THAT, CONTRARY TO HIS SWORN ALLEGATION, PETITIONER DID
UNDERSTAND PRECISELY WHAT WAS GOING ON AND RESPONDED PROMPTLY AND
INTELLIGENTLY: 

(2)  AN INITIAL APPLICATION UNDER SEC. 2255 WHICH NOT ONLY FAILED TO
MENTION THE CLAIM NOW URGED - A LACK OF MENTAL COMPETENCE TO UNDERSTAND
- BUT INDEED ADVANCED A WHOLLY INCONSISTENT CLAIM - THAT THE COURT
ALLOWED HIM TO BE "INTIMIDATED AND COERCED" INTO PLEADING GUILTY; AND: 

(3)  A SECOND APPLICATION, NOT FILED FOR ANOTHER NINE MONTHS, WITHOUT
ANY EXPLANATION WHY A POINT WHICH WAS OBVIOUSLY KNOWN TO PETITIONER
BEFORE, AND WHICH WOULD SO CLEARLY HAVE BEEN RELEVANT, HAD NOT
PREVIOUSLY BEEN RAISED. 

IN THE LIGHT OF THE WHOLE RECORD, INCLUDING THE PRIOR APPLICATION,
THE SECOND MOTION RESTED ON AN ASSERTION OF FACT THAT WAS HIGHLY
SUSPECT, IF NOT SELF-REFUTING.  IF THE ASSERTION HAD BEEN MADE IN THE
INITIAL APPLICATION, OR IF A VALID EXCUSE HAD BEEN OFFERED FOR THE
FAILURE TO DO SO, A HEARING WOULD DOUBTLESS HAVE BEEN NECESSARY.  BUT
TO REQUIRE A HEARING UNDER THE PRESENT CIRCUMSTANCES, AND TO TELL THE
TRIAL COURT THAT IT HAS ABUSED ITS DISCRETION, IS TO SANCTION MANIFEST
ABUSE OF THE REMEDY. 

III. 

I SERIOUSLY DOUBT THE WISDOM OF THESE "GUIDELINE" DECISIONS.  THEY
SUFFER THE DANGER OF PITFALLS THAT USUALLY GO WITH JUDGING IN A
VACUUM.  HOWEVER CAREFULLY WRITTEN, THEY ARE APT IN THEIR APPLICATION
TO CARRY UNINTENDED CONSEQUENCES WHICH ONCE ACCOMPLISHED ARE NOT ALWAYS
EASY TO REPAIR.  RULES RESPECTING MATTERS DAILY ARISING IN THE FEDERAL
COURTS ARE ULTIMATELY LIKELY TO FIND MORE SOLID FORMULATION IF LEFT TO
FOCUSED ADJUDICATION ON A CASE-BY-CASE BASIS, OR TO THE NORMAL RULE
MAKING PROCESSES OF THE JUDICIAL CONFERENCE, RATHER THAN TO EX CATHEDRA
PRONOUNCEMENTS BY THIS COURT, WHICH IS REMOTE FROM THE ARENA. 

IN DEALING WITH CASES OF THIS TYPE, I THINK WE DO BETTER TO CONFINE
OURSELVES TO THE PARTICULAR ISSUES PRESENTED, AND ON THAT BASIS I WOULD
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  ACCORDING TO THE REPORTS OF THE ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS, 538 SEC. 2255 PROCEEDINGS WERE COMMENCED IN 1960,
560 IN 1961, AND 546 IN 1962.  ANNUAL REPORT OF THE DIRECTOR, 1960, P.
231; ID., 1961, P. 239; PRELIMINARY ANNUAL REPORT OF THE DIRECTOR,
1962, DIVISION OF PROCEDURAL STUDIES AND STATISTICS, P. 23.  THE
GOVERNMENT, IN REFERRING TO THESE FIGURES IN ITS BRIEF, HAS STATED THAT
EVEN THEY "DO NOT  ...  APPEAR TO BE COMPLETE IN LIGHT OF THE
DEPARTMENT'S EXPERIENCE WITH PETITIONS FOR WRITS OF CERTIORARI IN THIS
COURT." 

FN2  THE MEMORANDUM OF CIRCUIT JUDGE STONE WAS WRITTEN AT A TIME WHEN
THE PROPOSAL WAS TO BAR SUCCESSIVE APPLICATIONS EXCEPT IN THE FORM OF
PETITIONS FOR REHEARING TO THE SAME JUDGE THAT HAD PASSED ON THE PRIOR
APPLICATION.  BUT THE LANGUAGE IN ISSUE HERE, DEFINING THOSE
APPLICATIONS CONSIDERED TO BE SUCCESSIVE, I.E., THOSE PRESENTING "NO
NEW GROUND NOT THERETOFORE PRESENTED AND DETERMINED," WAS THE SAME AS
THAT CONTAINED IN SEC.  2244 AS ULTIMATELY ENACTED. 

FN3  IT SEEMS CLEAR THAT THE ACTUAL DECISION IN PRICE V. JOHNSTON
COULD NOT HAVE ENTERED INTO CONGRESS' DELIBERATIONS ON SECS. 2244 AND
2255, SINCE THE DECISION WAS HANDED DOWN ONLY ONE MONTH BEFORE FORMAL
ENACTMENT, AND WELL AFTER STUDY AND FORMULATION OF THE PROPOSALS. 
..END :








BROTHERHOOD OF LOCOMOTIVE ENGINEERS V. LOUISVILLE & NASHVILLE RAILROAD
CO. 373 U.S. 33 


NO. 94.  ARGUED FEBRUARY 21, 1963.  - DECIDED APRIL 29, 1963.  - 297
F.2D 608, AFFIRMED. 


UNDER SEC. 3 FIRST (I) OF THE RAILWAY LABOR ACT, A RAILROAD SUBMITTED
TO THE NATIONAL RAILROAD ADJUSTMENT BOARD A "MINOR DISPUTE" WITH A
UNION GROWING OUT OF THE DISCHARGE OF AN EMPLOYEE.  THE BOARD SUSTAINED
THE EMPLOYEE'S CLAIM FOR REINSTATEMENT AND BACK PAY.  THE RAILROAD
REINSTATED THE EMPLOYEE; BUT A DISPUTE THEN ENSUED AS TO WHETHER THE
EMPLOYEE WAS ENTITLED TO FULL PAY FOR THE TIME LOST WITHOUT DEDUCTION
FOR MONEY EARNED FROM OTHER EMPLOYERS.  THIS DISPUTE LED TO A THREAT OF
A STRIKE, AND THE RAILROAD SUED IN A FEDERAL DISTRICT COURT TO ENJOIN
THE THREATENED STRIKE.  HELD: UNDER THE RAILWAY LABOR ACT, THE UNION
COULD NOT LEAGLLY STRIKE FOR THE PURPOSE OF ENFORCING ITS
INTERPRETATION OF THE BOARD'S MONEY AWARD; IT MUST UTILIZE INSTEAD THE
JUDICIAL ENFORCEMENT PROCEDURE PROVIDED BY SEC. 3 FIRST (P) OF THE ACT;
AND THE DISTRICT COURT PROPERLY ENJOINED THE THREATENED STRIKE. 
TRAINMEN V. CHICAGO R.&I.R. CO., 353 U.S. 30.  PP. 33-42. 

BROTHERHOOD OF LOCOMOTIVE ENGINEERS ET AL. V. LOUISVILLE & NASHVILLE
RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT RAILROAD COMPANY DISMISSED AN EMPLOYEE NAMED HUMPHRIES
ON THE GROUND THAT HE HAD ASSAULTED TWO FELLOW EMPLOYEES.  HIS UNION,
THE BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, PROTESTED THE
DISCHARGE.  THE CUSTOMARY GRIEVANCE PROCEDURES ON THE PROPERTY WERE
INVOKED, BUT TO NO AVAIL.  TO ENFORCE ITS DEMAND THAT HUMPHRIES BE
REINSTATED, THE UNION THREATENED TO CALL A STRIKE.  BEFORE A STRIKE WAS
ACTUALLY CALLED, THE RESPONDENT SUBMITTED THE DISPUTE TO THE NATIONAL
RAILROAD ADJUSTMENT BOARD, PURSUANT TO SEC. 3 FIRST (I) OF THE RAILWAY
LABOR ACT.  (FN1)  THE ADJUSTMENT BOARD SUSTAINED THE EMPLOYEE'S CLAIM
FOR REINSTATEMENT IN THE FOLLOWING BRIEF ORDER: 

"CLAIM SUSTAINED WITH PAY FOR TIME LOST AS THE RULE IS CONSTRUED ON
THE PROPERTY." 

THE RESPONDENT REINSTATED HUMPHRIES, AND, FOR THE PURPOSE OF
COMPUTING HIS PAY FOR LOST TIME, IT ASKED HIM TO SUBMIT A RECORD OF THE
OUTSIDE INCOME HE HAD EARNED DURING THE PERIOD WHICH FOLLOWED HIS
DISMISSAL.  HUMPHRIES AND HIS UNION RESISTED THIS DEMAND FOR
INFORMATION, CLAIMING THAT THE ADJUSTMENT BOARD'S AWARD ENTITLED HIM TO
FULL PAY FOR THE TIME LOST, WITHOUT DEDUCTION FOR OUTSIDE INCOME. 

SEVERAL CONFERENCES WERE CALLED TO DISCUSS THIS DISPUTE.  WHEN THE
RESPONDENT REFUSED TO ACCEDE TO THE UNION'S INTERPRETATION OF THE
AWARD'S LOST-TIME PROVISION, THE UNION AGAIN THREATENED TO CALL A
STRIKE.  TO FORESTALL THE IMPENDING WORK STOPPAGE, THE RESPONDENT TWICE
PETITIONED THE ADJUSTMENT BOARD TO RESOLVE THE DISPUTE AS TO THE AMOUNT
DUE HUMPHRIES UNDER THE AWARD, ASKING THE BOARD FIRST FOR A
CLARIFICATION OF ITS EARLIER ORDER AND THEN SUBMITTING THE DISPUTED
ISSUE FOR RESOLUTION IN A SEPARATE DE NOVO PROCEEDING.  THE ADJUSTMENT
BOARD REFUSED TO ENTERTAIN EITHER PETITION, STATING IN ITS SECOND ORDER
THAT "THE MATTER MUST BE JUDGED RES JUDICATA" IN LIGHT OF THE ORIGINAL
ADJUSTMENT BOARD DECISION DEALING WITH THE HUMPHRIES CONTROVERSY. 

AFTER THE RESPONDENT HAD SUBMITTED THE DISPUTE FOR THE SECOND TIME TO
THE ADJUSTMENT BOARD, THE UNION SET A DEFINITE STRIKE DEADLINE.  THE
RESPONDENT THEN BROUGHT THE PRESENT LAWSUIT IN A FEDERAL DISTRICT
COURT, REQUESTING INJUNCTIVE RELIEF AGAINST THE THREATENED STRIKE. 
AFTER THE ADJUSTMENT BOARD PROCEEDINGS WERE COMPLETED, THE COURT ISSUED
THE INJUNCTION, HOLDING THAT UNDER THE RAILWAY LABOR ACT THE UNION
COULD NOT LEGALLY STRIKE FOR THE PURPOSE OF ENFORCING ITS
INTERPRETATION OF THE BOARD'S MONEY AWARD, BUT MUST INSTEAD UTILIZE THE
JUDICIAL ENFORCEMENT PROCEDURE PROVIDED BY SEC. 3 FIRST (P) OF THE
ACT.  (FN2)  190 F. SUPP. 829.  THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT AFFIRMED, 297 F.2D 608, AND WE GRANTED CERTIORARI TO CONSIDER
AN OBRIOUSLY SUBSTANTIAL QUESTION AFFECTING THE ADMINISTRATION OF THE
RAILWAY LABOR ACT.  370 U.S. 908.  FOR THE REASONS STATED IN THIS
OPINION, WE CONCLUDE THAT THE DISTRICT COURT AND THE COURT OF APPEALS
CORRECTLY DECIDED THE ISSUES PRESENTED, AND WE ACCORDINGLY AFFIRM THE
JUDGMENT BEFORE US. 

THE STATUTE GOVERNING THE CENTRAL ISSUE IN THIS CASE IS SEC. 3 FIRST
OF THE RAILWAY LABOR ACT, COVERING SO-CALLED "MINOR DISPUTES."  (FN3)
THE PRESENT PROVISIONS OF SEC. 3 FIRST WERE ADDED TO THE ACT IN 1934. 
(FN4)  THE HISTORICAL BAKCGROUND OF THESE PROVISIONS HAS BEEN DESCRIBED
AT LENGTH IN PREVIOUS OPINIONS OF THIS COURT.  SEE ELGIN, J.&E.R.  CO.
V. BURLEY, 325 U.S. 711; TRAINMEN V. CHICAGO R.&I.R. CO., 353 U.S. 30;
UNION PACIFIC R. CO. V. PRICE, 360 U.S. 601.  AS EXPLAINED IN DETAIL IN
THOSE OPINIONS, THE 1934 AMENDMENTS WERE ENACTED BECAUSE THE SCHEME OF
VOLUNTARY ARBITRATION CONTAINED IN THE ORIGINAL RAILWAY LABOR ACT (FN5)
HAD PROVED INCAPABLE OF ACHIEVING PEACEFUL SETTLEMENTS OF GRIEVANCE
DISPUTES.  TO ARRIVE AT A MORE EFFICACIOUS SOLUTION, CONGRESS, AT THE
BEHEST OF THE SEVERAL INTERESTS INVOLVED, SETTLED UPON A NEW DETAILED
AND COMPREHENSIVE STATUTORY GRIEVANCE PROCEDURE. 

SUBSECTIONS (A) TO (H) OF SEC. 3 FIRST CREATE THE NATIONAL RAILROAD
ADJUSTMENT BOARD AND DEFINE ITS COMPOSITION AND DUTIES.  (FN6)
SUBSECTION (I) PROVIDES THAT IT SHALL BE THE DUTY OF BOTH THE CARRIER
AND THE UNION TO NEGOTIATE ON THE PROPERTY CONCERNING ALL MINOR
DISPUTES WHICH ARISE; FAILING ADJUSTMENT BY THIS MEANS, "THE DISPUTES
MAY BE REFERRED BY PETITION OF THE PARTIES OR BY EITHER PARTY TO THE
APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD  ...  ."  (FN7)
SUBSECTION (L) DIRECTS THE APPOINTMENT OF A NEUTRAL REFEREE TO SIT ON
THE ADJUSTMENT BOARD IN THE EVENT ITS REGULAR MEMBERS ARE EVENLY
DIVIDED.  (FN8)  SUBSECTION (M) MAKES AWARDS OF THE ADJUSTMENT BOARD
"FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE, EXCEPT INSOFAR AS
THEY SHALL CONTAIN A MONEY AWARD."  IT FURTHER DIRECTS THE ADJUSTMENT
BOARD TO ENTERTAIN A PETITION FOR CLARIFICATION OF ITS AWARD IF A
DISPUTE SHOULD ARISE OVER ITS MEANING.  (FN9)  AND FINALLY, SUBSECTIONS
(O) AND (P) DESCRIBE THE MANNER IN WHICH ADJUSTMENT BOARD AWARDS MAY BE
ENFORCED, PROVIDING FOR THE ISSUANCE OF AN ORDER BY THE BOARD ITSELF
AND FOR JUDICIAL ACTION TO ENFORCE SUCH ORDERS.  (FN10) 

THE SEVERAL DECISIONS OF THIS COURT INTERPRETING SEC. 3 FIRST HAVE
MADE IT CLEAR THAT THIS STATUTORY GRIEVANCE PROCEDURE IS A MANDATORY,
EXCLUSIVE, AND COMPREHENSIVE SYSTEM FOR RESOLVING THE DISPUTED ISSUE
BEFORE THE ADJUSTMENT BOARD, WITH OR WITHOUT THE CONSENT OF THE OTHER,
HAS BEEN FIRMLY ESTABLISHED.  TRAINMEN V. CHICAGO R.&I.R. CO., 353
U.S., AT 34.  AND THE OTHER PARTY MAY NOT DEFEAT THIS RIGHT BY
RESORTING TO SOME OTHER FORUM.  THUS, IN ORDER OF CONDUCTORS V.
SOUTHERN R. CO., 339 U.S. 255, THE COURT HELD THAT A STATE COURT COULD
NOT TAKE JURISDICTION OVER AN EMPLOYER'S DECLARATORY JUDGMENT ACTION
CONCERNING AN EMPLOYEE GRIEVANCE SUBJECT TO SEC. 3 FIRST, BECAUSE, "IF
A CARRIER OR A UNION COULD CHOOSE A COURT INSTEAD OF THE BOARD, THE
OTHER PARTY WOULD BE DEPRIVED OF THE PRIVILEGE CONFERRED BY SEC. 3
FIRST (I)  ...  WHICH PROVIDES THAT AFTER NEGOTIATIONS HAVE FAILED
'EITHER PARTY' MAY REFER THE DISPUTE TO THE APPROPRIATE DIVISION OF THE
ADJUSTMENT BOARD."  ID., AT 256-257.  SEE SLOCUM V. DELAWARE, L.&W.R.
CO., 339 U.S. 239.  SIMILARLY, AN EMPLOYEE IS BARRED FROM CHOOSING
ANOTHER FORUM IN WHICH TO LITIGATE CLAIMS ARISING UNDER THE COLLECTIVE
AGREEMENT.  PENNSYLVANIA R. CO. V. DAY, 360 U.S. 548, 552-553.  A
COROLLARY OF THIS VIEW HAS BEEN THE PRINCIPLE THAT THE PROCESS OF
DECISION THROUGH THE ADJUSTMENT BOARD CANNOT BE CHALLENGED COLLATERALLY
BY METHODS OF REVIEW NOT PROVIDED FOR IN THE STATUE.  IN UNION PACIFIC
R. CO. V. PRICE, 360 U.S. 601, THE COURT HELD THAT AN EMPLOYEE COULD
NOT RESORT TO A COMMON LAW ACTION FOR WRONGFUL DISCHARGE AFTER THE SAME
CLAIM HAD BEEN REJECTED ON THE MERITS IN A PROCEEDING BEFORE THE
ADJUSTMENT BOARD.  THE DECISION IN THAT CASE WAS BASED UPON THE
CONCLUSION THAT, WHEN INVOKED, THE REMEDIES PROVIDED FOR IN SEC. 3
FIRST WERE INTENDED BY CONGRESS TO BE THE COMPLETE AND FINAL MEANS FOR
SETTLING MINOR DISPUTES.  360 U.S., AT 616-617.  SEE ALSO, WASHINGTON
TERMINAL CO. V. BOSWELL, 75 U.S. APP. D.C. 1, 124 F.2D 235 (PER
RUTLEDGE, J.), AFF'D BY AN EQUALLY DIVIDED COURT, 319 U.S. 732. 

OF EVEN MORE PARTICULARIZED RELEVANCE TO THE ISSUE NOW BEFORE US IS
THIS COURT'S DECISION IN TRAINMEN V. CHICAGO R.&I.R. CO., SUPRA.  THERE
THE RAILROAD HAD SUBMITTED SEVERAL COMMON GRIEVANCES TO THE ADJUSTMENT
BOARD PURSUANT TO SEC. 3 FIRST (I).  THE UNION HAD RESISTED THE
SUBMISSION, AND CALLED A STRIKE TO ENFORCE ITS GRIEVANCE DEMANDS.  THE
COURT HELD THAT THE STRIKE VIOLATED THOSE PROVISIONS OF THE ACT MAKING
THE MINOR DISPUTE PROCEDURES COMPULSORY ON BOTH PARTIES.  IN AN OPINION
WHICH REVIEWED AT LENGTH THE LEGISLATIVE HISTORY OF THE 1934
AMENDMENTS, THE COURT CONCLUDED THAT THIS HISTORY ENTIRELY SUPPORTED
THE PLAIN IMPORT OF THE STATUTORY LANGUAGE - THAT CONGRESS HAD INTENDED
THE GRIEVANCE PROCEDURES OF SEC. 3 FIRST TO BE A COMPULSORY SUBSTITUTE
FOR ECONOMIC SELF-HELP, NOT MERELY A VOLUNTARY ALTERNATIVE TO IT.  FOR
THIS REASON, THE COURT CONCLUDED THAT THE NORRIS-LAGUARDIA ACT, 29
U.S.C SECS. 101-115, WAS NOT A BAR TO INJUNCTIVE RELIEF AGAINST STRIKES
CALLED IN SUPPORT OF GRIEVANCE DISPUTES WHICH HAD BEEN SUBMITTED TO THE
NATIONAL RAILROAD ADJUSTMENT BOARD.  (FN11) 

IT IS AGAINST THIS PATTERN OF DECISIONS THAT WE MUST EVALUATE THE
PETITIONERS' CLAIM THAT THE DISTRICT COURT IN THE PRESENT CASE WAS
WRONG IN ENJOINING THE THREATENED STRIKE.  THE CLAIM, SIMPLY STATED, IS
THAT THE POWER TO ISSUE INJUNCTIONS RECOGNIZED BY THE CHICAGO RIVER
DECISION IS LIMITED TO THOSE SITUATIONS IN WHICH A STRIKE IS CALLED
DURING THE PROCEEDINGS BEFORE THE ADJUSTMENT BOARD.  ONCE A FAVORABLE
AWARD HAS BEEN RENDERED, SAY THE PETITIONERS, THE UNION BECOMES FREE TO
ENFORCE THE AWARD AS IT WILL - BY INVOKING THE JUDICIAL ENFORCEMENT
PROCEDURES OF SEC. 3 FIRST (P), OR BY RESORTING TO ECONOMIC FORCE.  THE
RIGHT TO STRIKE, IT IS ARGUED, IS NECESSARY TO ACHIEVE "THE
CONGRESSIONAL POLICY OF REQUIRING CARRIERS AND THEIR EMPLOYEES TO
SETTLE GRIEVANCES BY THE COLLECTIVE BARGAINING PROCESS." 

THE BROAD PREMISE OF THE PETITIONERS' ARGUMENT - THAT CONGRESS
INTENDED TO PERMIT THE SETTLEMENT OF MINOR DISPUTES THROUGH THE
INTERPLAY OF ECONOMIC FORCE - IS SQUARELY IN CONFLICT WITH THE BASIC
TEACHING OF CHICAGO RIVER.  AFTER A DETAILED ANALYSIS OF THE HISTORIC
BACKGROUND OF THE 1934 ACT, THE COURT THERE DETERMINED THAT "THERE WAS
GENERAL UNDERSTANDING BETWEEN BOTH THE SUPPORTERS AND THE OPPONENTS OF
THE 1934 AMENDMENT THAT THE PROVISIONS DEALING WITH THE ADJUSTMENT
BOARD WERE TO BE CONSIDERED AS COMPULSORY ARBITRATION IN THIS LIMITED
FIELD."  353 U.S., AT 39. 

THE PETITIONERS' NARROWER ARGUMENT - THAT, AT THE LEAST, STRIKES MAY
BE PERMITTED AFTER THE ADJUSTMENT BOARD MAKES AN AWARD - IS LIKEWISE
UNTENABLE UNDER THE CIRCUMSTANCES OF THIS CASE.  WE DO NOT DEAL HERE
WITH NON-MONEY AWARDS, WHICH ARE MADE "FINAL AND BINDING" BY SEC. 3
FIRST (M).  (FN12)  THE ONLY PORTION OF THE AWARD WHICH PRESENTLY
REMAINS UNSETTLED IS THE DISPUTE CONCERNING THE COMPUTATION OF
HUMPHRIES'"TIME LOST" AWARD, AN ISSUE WHOLLY SEPARABLE FROM THE MERITS
OF THE WRONGFUL DISCHARGE ISSUE.  THIS, THEN, IS CLEARLY A CONTROVERSY
CONCERNING A "MONEY AWARD," AS TO WHICH DECISIONS OF THE ADJUSTMENT
BOARD ARE NOT FINAL AND BINDING.  (FN13)  INSTEAD, THE ACT PROVIDES A
FURTHER STEP IN THE SETTLEMENT PROCESS.  IF THE CARRIER DOES NOT COMPLY
WITH THE AWARD, OR WITH THE EMPLOYEE'S OR UNION'S INTERPRETATION OF IT,
SEC. 3 FIRST (P) AUTHORIZES THE EMPLOYEE TO BRING AN ACTION IN A
FEDERAL DISTRICT COURT TO ENFORCE THE AWARD.  (FN14)  THE LAWSUIT IS TO
"PROCEED IN ALL RESPECTS AS OTHER CIVIL SUITS," BUT THE FINDINGS AND
ORDER OF THE ADJUSTMENT BOARD ARE TO BE REGARDED AS "PRIMA FACIE
EVIDENCE" OF THE FACTS STATED IN THE COMPLAINT.  THE EMPLOYEE IS
EXCUSED FROM THE COSTS OF SUIT, AND, IN ADDITION, IS AWARDED ATTORNEY'S
FEES IF HE PREVAILS.  THE TOTAL EFFECT OF THESE DETAILED PROVISIONS IS
TO PROVIDE A CAREFULLY DESIGNED PROCEDURE FOR REVIEWING MONEY AWARDS,
ONE WHICH WILL ACHIEVE THE REVIEWING FUNCTION WITHOUT ANY SIGNIFICANT
EXPENSE TO THE EMPLOYEE OR HIS UNION.  SEE WASHINGTON TERMINAL CO. V.
BOSWELL, SUPRA. 

THE EXPRESS PROVISION FOR THIS SPECIAL FORM OF JUDICIAL REVIEW FOR
MONEY AWARDS, BOTH IN SUBSECTION (M) AND AGAIN IN SUBSECTION (P), MAKES
IT CLEAR THAT CONGRESS REGARDED THIS PROCEDURE AS AN INTEGRAL PART OF
THE ACT'S GRIEVANCE MACHINERY.  CONGRESS HAS, IN EFFECT, DECREED A TWO
STEP GRIEVANCE PROCEDURE FOR MONEY AWARDS, WITH THE FIRST STEP, THE
ADJUSTMENT BOARD ORDER AND FINDINGS, SERVING AS THE FOUNDATION FOR THE
SECOND.  MONEY AWARDS AGAINST CARRIERS CANNOT BE MADE FINAL BY ANY
OTHER MEANS.  TO ALLOW ONE OF THE PARTIES TO RESORT TO ECONOMIC SELF
HELP AT THIS POINT IN THE PROCESS WOULD VIOLATE THIS DIRECT STATUTORY
COMMAND.  IT WOULD PERMIT THAT PARTY TO WITHDRAW AT WILL FROM THE
PROCESS OF SETTLEMENT WHICH CONGRESS HAS EXPRESSLY REQUIRED BOTH
PARTIES TO FOLLOW.  IN ADDITION, IT WOULD OBVIOUSLY RENDER THE EARLIER
PARTS OF THE GRIEVANCE PROCEDURE TOTALLY MEANINGLESS. 

A STRIKE IN THESE CIRCUMSTANCES WOULD THEREFORE BE NO LESS DISRUPTIVE
OF THE EXPLICIT STATUTORY GRIEVANCE PROCEDURE THAN WAS THE STRIKE
ENJOINED IN THE CHICAGO RIVER CASE.  CONSEQUENTLY, THE REASONS WHICH,
IN THAT CASE, REQUIRED ACCOMMODATING THE MORE GENERALIZED PROVISIONS OF
THE NORRIS-LAGUARDIA ACT APPLY WITH EQUAL FORCE TO THE PRESENT CASE. 
(FN15)  WE HOLD THAT THE DISTRICT COURT WAS NOT IN ERROR IN ISSUING THE
INJUNCTION.  AFFIRMED. 

FN1  "(I)  THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND
A CARRIER OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY,
RULES, OR WORKING CONDITIONS, INCLUDING CASES PENDING AND UNADJUSTED ON
JUNE 21, 1934, SHALL BE HANDLED IN THE USUAL MANNER UP TO AND INCLUDING
THE CHIEF OPERATING OFFICER OF THE CARRIER DESIGNATED TO HANDLE SUCH
DISPUTES; BUT, FAILING TO REACH AN ADJUSTMENT IN THIS MANNER, THE
DISPUTES MAY BE REFERRED BY PETITION OF THE PARTIES OR BY EITHER PARTY
TO THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD WITH A FULL
STATEMENT OF THE FACTS AND ALL SUPPORTING DATA BEARING UPON THE
DISPUTES."  45 U.S.C.  SEC. 153 FIRST (I).    FN2  "(P)  IF A CARRIER
DOES NOT COMPLY WITH AN ORDER OF A DIVISION OF THE ADJUSTMENT BOARD
WITHIN THE TIME LIMIT IN SUCH ORDER, THE PETITIONER, OR ANY PERSON FOR
WHOSE BENEFIT SUCH ORDER WAS MADE, MAY FILE IN THE DISTRICT COURT OF
THE UNITED STATES FOR THE DISTRICT IN WHICH HE RESIDES OR IN WHICH IS
LOCATED THE PRINCIPAL OPERATING OFFICE OF THE CARRIER, OR THROUGH WHICH
THE CARRIER OPERATES, A PETITION SETTING FORTH BRIEFLY THE CAUSES FOR
WHICH HE CLAIMS RELIEF, AND THE ORDER OF THE DIVISION OF THE ADJUSTMENT
BOARD IN THE PREMISES.  SUCH SUIT IN THE DISTRICT COURT OF THE UNITED
STATES SHALL PROCEED IN ALL RESPECTS AS OTHER CIVIL SUITS, EXCEPT THAT
ON THE TRIAL OF SUCH SUIT THE FINDINGS AND ORDER OF THE DIVISION OF THE
ADJUSTMENT BOARD SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN
STATED, AND EXCEPT THAT THE PETITIONER SHALL NOT BE LIABLE FOR COSTS IN
THE DISTRICT COURT NOR FOR COSTS AT ANY SUBSEQUENT STAGE OF THE
PROCEEDINGS, UNLESS THEY ACCRUE UPON HIS APPEAL, AND SUCH COSTS SHALL
BE PAID OUT OF THE APPROPRIATION FOR THE EXPENSES OF THE COURTS OF THE
UNITED STATES.  IF THE PETITIONER SHALL FINALLY PREVAIL HE SHALL BE
ALLOWED A REASONABLE ATTORNEY'S FEE, TO BE TAXED AND COLLECTED AS A
PART OF THE COSTS OF THE SUIT.  THE DISTRICT COURTS ARE EMPOWERED,
UNDER THE RULES OF THE COURT GOVERNING ACTIONS AT LAW, TO MAKE SUCH
ORDER AND ENTER SUCH JUDGMENT, BY WRIT OF MANDAMUS OR OTHERWISE, AS MAY
BE APPROPRIATE TO ENFORCE OR SET ASIDE THE ORDER OF THE DIVISION OF THE
ADJUSTMENT BOARD."  45 U.S.C. SEC. 153 FIRST (P). 

FN3  THERE CAN BE NO DOUBT THAT THE CONTROVERSY OVER THE AMOUNT OF
THE "TIME LOST" AWARD IS A MINOR DISPUTE, BECAUSE IT INVOLVES "THE
INTERPRETATION OR APPLICATION" OF THE COLLECTIVE AGREEMENT BETWEEN THE
RAILROAD AND THE UNION.  SEE NOTE 1, SUPRA.  SEE ALSO, ELGIN, J.&E.R.
CO. V. BURLEY, 325 U.S. 711; TRAINMEN V. CHICAGO R.&I.R. CO., 353 U.S.
30. 

FN4  48 STAT. 1185, 1189 (1934). 

FN5  44 STAT. 577, 578 (1926). 

FN6  45 U.S.C. SEC. 153 FIRST (A)-(H). 

FN7  SEE NOTE 1, SUPRA. 

FN8  45 U.S.C. SEC. 153 FIRST (L). 

FN9  "(M)  THE AWARDS OF THE SEVERAL DIVISIONS OF THE ADJUSTMENT
BOARD SHALL BE STATED IN WRITING.   A COPY OF THE AWARDS SHALL BE
FURNISHED TO THE RESPECTIVE PARTIES TO THE CONTROVERSY, AND THE AWARDS
SHALL BE FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE, EXCEPT
INSOFAR AS THEY SHALL CONTAIN A MONEY AWARD.  IN CASE A DISPUTE ARISES
INVOLVING AN INTERPRETATION OF THE AWARD, THE DIVISION OF THE BOARD
UPON REQUEST OF EITHER PARTY SHALL INTERPRET THE AWARD IN THE LIGHT OF
THE DISPUTE."  45 U.S.C. SEC. 153 FIRST (M). 

FN10  "(O)  IN CASE OF AN AWARD BY ANY DIVISION OF THE ADJUSTMENT
BOARD IN FAVOR OF PETITIONER, THE DIVISION OF THE BOARD SHALL MAKE AN
ORDER, DIRECTED TO THE CARRIER, TO MAKE THE AWARD EFFECTIVE AND, IF THE
AWARD INCLUDES A REQUIREMENT FOR THE PAYMENT OF MONEY, TO PAY TO THE
EMPLOYEE THE SUM TO WHICH HE IS ENTITLED UNDER THE AWARD ON OR BEFORE A
DAY NAMED."  45 U.S.C. SEC. 153 FIRST (O). 

THE LANGUAGE OF SEC. 3 FIRST (P) IS SET OUT IN NOTE 2, SUPRA. 

FN11  "(THE NORRIS-LAGUARDIA ACT WAS DESIGNED PRIMARILY) TO PREVENT
THE INJUNCTIONS OF THE FEDERAL COURTS FROM UPSETTING THE NATURAL
INTERPLAY OF THE COMPETING ECONOMIC FORCES OF LABOR AND CAPITAL.  REP.
LAGUARDIA  ...  RECOGNIZED THAT THE MACHINERY OF THE RAILWAY LABOR ACT
CHANNELED THESE ECONOMIC FORCES, IN MATTERS DEALING WITH RAILWAY LABOR,
INTO SPECIAL PROCESSES INTENDED TO COMPROMISE THEM.  SUCH
CONTROVERSIES, THEREFORE, ARE NOT THE SAME AS THOSE IN WHICH THE
INJUNCTION STRIPS LABOR OF ITS PRIMARY WEAPON WITHOUT SUBSTITUTING ANY
REASONABLE ALTERNATIVE."  353 U.S., AT 40-41.  CF. MANION V. KANSAS
CITY TERMINAL R. CO., 353 U.S. 927, WHICH HELD THAT INJUNCTIVE RELIEF
IS NOT AVAILABLE IF THE PROCESSES OF THE RAILWAY LABOR ACT HAVE NOT
ACTUALLY BEEN INVOKED.  COMPARE SINCLAIR REFINING CO. V. ATKINSON, 370
U.S. 195, 210-212. 

FN12  SEE NOTE 9, SUPRA. 

FN13  SEE NOTE 9, SUPRA. 

FN14  SEE NOTE 2, SUPRA. 

FN15  SEE NOTE 11, SUPRA. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THIS COURT'S DECISION IN THE CHICAGO RIVER CASE, TRAINMEN V. CHICAGO
R.&I.R. CO., 353 U.S. 30, HOLDS THAT STRIKES ARE EXCLUDED PENDING
GRIEVANCE PROCEEDINGS OVER "MINOR DISPUTES" BEFORE THE ADJUSTMENT
BOARD.  THOUGH THIS IS ALL THAT CHICAGO RIVER HOLDS, THE COURT TODAY
IMPLIEDLY READS IT TO MEAN AND, INDEED, THERE IS LANGUAGE IN CHICAGO
RIVER TO THE EFFECT THAT CONGRESS IS TO BE TAKEN AS HAVING ELECTED IN
FAVOR OF A COMPREHENSIVE AND WHOLLY EXCLUSIVE SYSTEM OF COMPULSORY
ARBITRATION AND AS HAVING OUTLAWED ALL USE OF ECONOMIC FORCE IN THE
FORM OF A STRIKE AT ANY STAGE OF A "MINOR DISPUTE" WHICH IS SUBJECT TO
CONSIDERATION BY THE ADJUSTMENT BOARD.  THE LOGIC OF CHICAGO RIVER IS
THAT "FINAL AND BINDING" AWARDS OF THE ADJUSTMENT BOARD ARE ENFORCEABLE
IN FAVOR OF, OR AGAINST, EITHER THE EMPLOYER RAILROAD, THE UNION, OR
THE GRIEVANT EMPLOYEE IN THE FEDERAL COURTS.  GIVEN THE PREMISES OF
CHICAGO RIVER, IT MUST FOLLOW THAT SUCH ENFORCEMENT PROCEEDINGS ARE
GOVERNED BY FEDERAL LAW AS DECLARED BY THIS COURT IN CASES SUCH AS
STEELWORKERS V. AMERICAN MFG. CO., 363 U.S. 564, STEELWORKERS V.
WARRIER & GULF CO., 363 U.S. 574, AND STEELWORKERS V. ENTERPRISE CORP.,
363 U.S. 593, AND, OF COURSE, THAT THE MERITS OF SUCH AWARDS ARE NOT
SUBJECT TO DE NOVO CONSIDERATION UPON A PETITION FOR JUDICIAL
ENFORCEMENT.  SEE MACHINISTS ASSN. V. CENTRAL AIRLINES, 372 U.S. 682. 

HERE, HOWEVER, UNLIKE CHICAGO RIVER, THE ADJUSTMENT BOARD PROCEEDINGS
HAVE ENDED; MOREOVER, WE ARE DEALING NOT WITH A NONMONEY AWARD WHICH IS
MADE SPECIFICALLY "FINAL AND BINDING" BY THE STATUTE, BUT WITH A MONEY
AWARD WHICH, AS THE MAJORITY RECOGNIZES, IS GOVERNED BY DIFFERENT
CONSIDERATIONS AND IS TREATED DIFFERENTLY IN THE STATUTE ITSELF.  A
MONEY AWARD BY THE BOARD IS EXPRESSLY DECLARED BY THE ACT NOT TO BE
"FINAL AND BINDING."  THE ENFORCEMENT MACHINERY CONTAINED IN SUBSECTION
(P) OF THE ACT - WHICH THE COURT'S OPINION INFERENTIALLY SUGGESTS IS
CONFINED TO MONEY AWARDS, AND WHICH I WOULD EXPRESSLY DECLARE TO BE SO
LIMITED (FN1) - CONTEMPLATES FOR SUCH AWARDS NOT THAT LIMITED TYPE OF
REVIEW APPLICABLE TO "FINAL AND BINDING" NONMONEY AWARDS, BUT A DE NOVO
TRIAL BEFORE THE COURT, SUBJECT ONLY TO THE LIMITATION, AS THE STATUTE
REQUIRES, THAT THE FINDINGS OF FACT OF THE BOARD SHALL CONSTITUTE
"PRIMA FACIE" EVIDENCE.  UNDER SUCH CIRCUMSTANCES, THE LOGIC OF CHICAGO
RIVER IN EXCLUDING STRIKES IN FAVOR OF AN EXCLUSIVE SCHEME OF
"COMPULSORY ARBITRATION" SEEMS TO ME TO HAVE NO APPLICATION, FOR HERE
WE ARE DEALING WITH NONFINAL AND NONBINDING AWARDS, THE DIRECT
ANTITHESIS OF A COMPULSORY ARBITRATION SCHEME. 

IN ADDITION, THE COURT'S OPINION LEADS TO WHAT SEEMS TO ME TO BE A
WHOLLY ANOMALOUS RESULT PLAINLY NEVER INTENDED BY CONGRESS.  WHAT WAS
MERELY EXPRESSED AS DICTA IN UNION PAC. R. CO. V. PRICE, 360 U.S. 601,
IS APPARENTLY REINFORCED BY TODAY'S HOLDING.  IN PRICE, THE COURT SAID,
THOUGH THE QUESTION WAS NOT BEFORE IT, THAT A STRIKE AGAINST AN
ADJUSTMENT BOARD AWARD DENYING A MONEY CLAIM OF A GRIEVANT COULD BE
ENJOINED IN THE FEDERAL COURTS UNDER THE RATIONALE OF CHICAGO RIVER. 
SEE 360 U.S., AT 611, N. 10.  THE COURT HERE HOLDS THAT A STRIKE TO
ENFORCE A MONEY AWARD FAVORABLE TO THE CLAIMANT IS FORBIDDEN EVEN WHEN
THE CARRIER REFUSES TO ABIDE THEREBY.  IN SO HOLDING, THE COURT CITES
PRICE WITH APPARENT APPROVAL AND ITS LANGUAGE SUPPORTS THE RESULT
DECLARED BY THE PRICE DICTA.   THUS, AS OF TODAY, IT APPEARS EVEN MORE
CLEARLY THAT A GRIEVANT FILING A MONEY CLAIM WHICH IS DENIED BY THE
ADJUSTMENT BOARD IS FINALLY BOUND BY THE RESULT AND MAY NEITHER BRING
AN INDEPENDENT SUIT ON HIS CLAIM (THE HOLDING OF PRICE (FN2)), NOR,
PRESUMABLY, UTILIZE ECONOMIC PRESSURE, I.E., THE STRIKE, IN SUPPORT OF
HIS CLAIM (THE PURPORT OF THE PRICE DICTA AND THE THRUST OF TODAY'S
HOLDING), NOR EVEN SEEK FURTHER JUDICIAL REVIEW OF THE MERITS OF HIS
CLAIM SINCE THE LITERAL LANGUAGE OF SUBSECTION (P) APPLIES ONLY TO
AWARDS IN THE CLAIMANT'S FAVOR.  THE CARRIER WILL HAVE NO REASON TO
SEEK FURTHER JUDICIAL REVIEW BECAUSE THE AWARD IS FAVORABLE TO IT AND
BOTH THE UNSUCCESSFUL GRIEVANT AND THE UNION ARE WITHOUT EFFECTIVE
MEANS TO PREVENT ITS ENFORCEMENT.  THUS, UNDER TODAY'S OPINION AND THE
PRIOR CASES CITED THEREIN, THE GRIEVANT WHOSE MONEY CLAIM IS DENIED BY
THE BOARD IS WHOLLY WITHOUT FURTHER REMEDY OR RECOURSE. 

SUCH COMPLETE FORECLOSURE OF A LOSING MONEY CLAIMANT WOULD BE LESS
OBJECTIONABLE WERE IT NOT FOR THE WHOLLY DISPARATE CONSEQUENCES
OBTAINING AS A RESULT OF TODAY'S DECISION WHEN IT IS THE CARRIER WHO
LOSES ON A MONEY CLAIM BEFORE THE BOARD.  IF THIS OCCURS, THE CARRIER
IS FREE TO REFUSE TO COMPLY, AS IT DID HERE; SINCE TODAY'S OPINION
FORECLOSES OTHER AVENUES OF RELIEF TO THE SUCCESSFUL GRIEVANT AND HIS
UNION, THE CARRIER, BY SUCH RECALCITRANCE, CAN COMPEL A SUIT TO ENFORCE
THE AWARD UNDER SUBSECTION (P), WHICH REQUIRES AN ENTIRE RETRIAL OF THE
ISSUES IN COURT.  DURING THIS LENGTHY PROCEDURE AND, PRESUMABLY, EVEN
AT ITS CONCLUSION, THE GRIEVANT AND THE UNION WILL BE LEFT WITHOUT
ECONOMIC OR OTHER RECOURSE.  THE NET RESULT, THEREFORE, IS THAT ON ALL
MONEY CLAIMS, THE AWARD OF THE BOARD IS "FINAL AND BINDING," AND NOT
SUBJECT TO FURTHER REVIEW OR OTHER CHALLENGE, IF THE CLAIMANT LOSES,
BUT IT IS SUBJECT TO DE NOVO REVIEW AND TRIAL AT THE SOLE BEHEST OF THE
EMPLOYER, IF THE EMPLOYER LOSES.  AND IN EITHER CASE, APPARENTLY, THE
UNION IS COMPLETELY FORECLOSED EVEN FROM USING ITS MOST TRADITIONAL
WEAPON, THE STRIKE.  I CANNOT BELIEVE THAT CONGRESS INTENDED SUCH AN
UNEVENHANDED APPLICATION OF THE STATUTE.  NOR CAN I BELIEVE, AS THE
COURT HOLDS, THAT CONGRESS COULD HAVE CONTEMPLATED THAT THE PROTECTION
OF THE RIGHT TO STRIKE AFFORDED BY THE NORRIS-LAGUARDIA ACT WAS BEING
RESCINDED IN FAVOR OF SUCH AN INADEQUATE AND UNFAIR PROCEDURE AS THE
COURT DECLARES THE ACT TO HAVE CREATED. 

ABSENT A WILLINGNESS TO PERMIT EQUALLY BROAD DE NOVO REVIEW TO A
GRIEVANT WHOSE MONEY CLAIM IS DENIED BY THE BOARD, (FN3) A READING OF
THE STATUTE WHICH ADMITTEDLY SEEMS CONTRARY TO LITERAL WORDS OF
SUBSECTION (P), THE ONLY INTERPRETATION WHICH PROVIDES A SEMBLANCE OF
FAIRNESS IN THIS SITUATION IS ONE WHICH INTERPRETS CONGRESSIONAL INTENT
TO BE THAT, IN MONEY-CLAIM CASES AT LEAST, THE RIGHT TO STRIKE - WHILE
PERHAPS SUSPENDED DURING ADJUSTMENT BOARD PROCEEDINGS - IS AVAILABLE
EITHER IF THE BOARD DECIDES FOR THE CLAIMANT AND THE CARRIER DOES NOT
COMPLY, OR IF THE BOARD DECIDES FOR THE CARRIER AND THE CLAIMANT DOES
NOT ACQUIESCE.  THIS AT LEAST WOULD NOT LEAVE THE ENTIRE BALANCE IN
MONEY CASES IN FAVOR OF THE CARRIER. 

THE SUGGESTED RESULT IS IN NO WAY FORECLOSED BY CHICAGO RIVER, WHICH
DID NOT TREAT OF THE DIFFERENCE BETWEEN ENFORCEMENT OF MONEY AND
NONMONEY AWARDS ONCE MADE, NOR BY PRICE, SINCE THAT CASE DID NOT DEAL
WITH THE RIGHT TO STRIKE, AND IS DISTINGUISHABLE ON THE GROUND THAT
THERE, HAVING ONCE RESORTED TO THE ADJUSTMENT BOARD, THE LOSING
GRIEVANT COULD NOT, UNDER TRADITIONAL ELECTION-OF-REMEDY PRINCIPLES,
RELITIGATE THE SAME ISSUES AFRESH BY BRINGING AN INDEPENDENT, UNRELATED
COMMON-LAW ACTION IN ANOTHER FORUM.  (FN4) 

MY ULTIMATE VIEW, THEREFORE, IS THAT CONGRESS - WHATEVER ITS INTENT
WITH RESPECT TO IMPLIEDLY REPEALING THE NORRIS-LAGUARDIA ACT IN
NONMONEY CASES IN WHICH THE BOARD'S DECISION IS EXPRESSLY MADE FINAL
AND BINDING - CANNOT FAIRLY BE DEEMED TO HAVE INTENDED SUCH A REPEAL IN
MONEY-AWARD CASES, IN WHICH THE BOARD'S DECISIONS ARE EXPRESSLY NOT
FINAL AND BINDING.  THE LEGISLATIVE HISTORY IS NOT MERELY UNINSTRUCTIVE
AS TO TODAY'S RESULT; IT CLEARLY DEMONSTRATES THAT CONGRESS NEVER
FOCUSED ON OR CONSIDERED THE PROBLEM HERE RAISED, OR EVEN RECOGNIZED
THE ANOMALY TODAY'S OPINION IN PART EFFECTS AND IN PART PORTENDS. 
NOTWITHSTANDING, THE COURT HAS READ CONGRESS AS INTENDING ALLOWANCE OF
WHAT IN CHICAGO RIVER WAS DESCRIBED AS AN INJUNCTION WHICH "STRIPS
LABOR OF ITS PRIMARY WEAPON WITHOUT SUBSTITUTING ANY REASONABLE
ALTERNATIVE."  353 U.S., AT 41.  TO IMPUTE SO DRASTIC A RESULT WITHOUT
ANY CLEAR INDICATION THAT IT WAS INTENDED SEEMS TO ME TO BE
UNWARRANTED. 

I REACH THESE CONCLUSIONS RELUCTANTLY SINCE I BELIEVE THAT
ARBITRATION OF GRIEVANCES IS, IN GENERAL, A SALUTARY POLICY IN THE
FIELD OF LABOR-MANAGEMENT RELATIONS AND CONTRIBUTES SUBSTANTIALLY TO
INDUSTRIAL PEACE.  WHOLLY APART FROM QUESTIONS AS TO THE GENERAL
DESIRABILITY OF COMPULSORY ARBITRATION, THE RESULTS FLOWING FROM
CHICAGO RIVER WOULD, IN THESE TERMS, BE COMMENDABLE, ASSUMING THAT THE
NORMALLY CUMBERSOME AND SLOW PROCEDURES OF THE ADJUSTMENT BOARD COULD
BE EXPEDITED TO ACHIEVE THE EFFICACY AND EFFICIENCY TYPICAL OF PRIVATE
LABOR ARBITRATIONS AND ESSENTIAL TO SUCCESS OF THE PROCESS.  THE COURT
PROCEDURE UNDER SUBSECTION (P) OF THE ACT, WHICH TODAY IS MADE AN
INTEGRAL, IF NOT MANDATORY, PART OF THE STATUTORY GRIEVANCE MACHINERY,
WILL, HOWEVER, ONLY INCREASE THE ALREADY UNDUE DELAY IN RESOLUTION OF
GRIEVANCES.  (FN5)  MOREOVER, THE DE NOVO NATURE OF THE REQUISITE COURT
TRIAL ON REVIEW UNDER SUBSECTION (P) RUNS DIRECTLY CONTRARY TO THE BEST
VIEW OF THE TREATMENT TO BE JUDICIALLY ACCORDED SUCH AWARDS.  SEE,
E.G., STEELWORKERS V. ENTERPRISE CORP., SUPRA, 363 U.S., 596-599. 
THESE LATTER CONSIDERATIONS DO NOT THEMSELVES COMPEL MY CONCLUSION
HERE, HOWEVER, FOR STANDING ALONE THEY ARE THE RESULT OF POLICY
DETERMINATIONS WHICH, IN THIS INSTANCE, EITHER HAVE ALREADY BEEN MADE
BY, OR ARE MORE PROPERLY COMMITTED TO, CONGRESS AS DIRECT CONSEQUENCES
OF THE LITERAL STATUTORY SCHEME.  THEY ARE, NONETHELESS, RELEVANT
FACTORS IN APPRAISING THE PROPRIETY AND WISDOM OF THE COURT'S
CONSTRUCTION OF THE STATUTE AND ITS ESTIMATE OF THE INTENTION OF ITS
FRAMERS.    THUS, WITH ALL DEFERENCE, I MUST RESPECTFULLY DISSENT FROM
TODAY'S OPINION SINCE, THOUGH NEITHER MANDATED BY THIS COURT'S PRIOR
HOLDINGS NOR SUPPORTED, MUCH LESS COMPELLED, BY SPECIFIC CONGRESSIONAL
INTENT, IT CREATES ADDITIONAL EXCEPTIONS TO THE NORRIS-LAGUARDIA ACT
PROTECTIONS AND DOES SO IN A FASHION WHICH EFFECTS, IN MY VIEW, AN
UNFAIR IMBALANCE, IF NOT OUTRIGHT CLEAR ADVNATAGE, IN FAVOR OF THE
CARRIER AND AGAINST THE EMPLOYEE AND HIS UNION. 

FN1  A COMMON SENSE AND PRACTICAL READING OF THE STATUTORY PROVISIONS
SEEMS TO ME TO COMPEL THE CONCLUSION THAT SUBSECTION (P) IS CONFINED IN
ITS APPLICATION TO MONEY CLAIMS.  SUBSECTION (M) MAKES ALL NONMONEY
AWARDS "FINAL AND BINDING" AND ANY READING OF SUBSECTION (P) WHICH
ALLOWED DE NOVO REVIEW OF THE MERITS OF SUCH AWARDS WOULD BE DIRECTLY
CONTRADICTORY TO THE EFFECT EXPRESSLY ACCORDED TO THEM.  MOREOVER,
SUBSECTION (O) PROVIDES THAT IF THE CLAIMANT WINS, THE BOARD SHALL
ENTER AN "ORDER, DIRECTED TO THE CARRIER, TO MAKE THE AWARD EFFECTIVE"
AND THAT, IN CASES INVOLVING A MONEY AWARD, SUCH ORDER SHALL REQUIRE
PAYMENT BY A DAY CERTAIN.  SUCH DETAILED DIRECTION WITH RESPECT TO THE
MONEY-AWARD ORDER WOULD APPEAR EXCLUSIVELY COMPLEMENTARY TO THE
PROVISION IN SUBSECTION (P), THE IMMEDIATELY SUCCEEDING SECTION, WHICH
PROVIDES FOR THE DE NOVO REVIEW ONLY IN CASES IN WHICH A LOSING CARRIER
DOES NOT COMPLY WITH THE AWARD "WITHIN THE TIME LIMIT IN SUCH ORDER." 
(THE RELEVANT SUBSECTIONS OF THE ACT ARE SET OUT IN NOTES 2, 9, AND 10,
OF THE COURT'S OPINION, ANTE, PP. 35, 37.) 

FN2  SEE ALSO PENNSYLVANIA R. CO. V. DAY, 360 U.S. 548. 

FN3  CF. UNITED STATES V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426. 

FN4  IN FACT, THE MANNER IN WHICH THE COURT IN PRICE DISTINGUISHED
ITS EARLIER DECISION IN MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630,
SUGGESTS THIS VERY RATIONALE.  SEE 360 U.S., AT 609, N. 8. 

FN5  WHILE THE ADJUSTMENT BOARD HANDLES AND DISPOSES OF AN IMPRESSIVE
NUMBER OF CASES EACH YEAR, THE BACKLOG OF PENDING DISPUTES IS IMMENSE. 
DURING ITS 1962 FISCAL YEAR, A TOTAL OF 997 CASES WERE DISPOSED OF BY
DECISION AND 383 CASES WERE WITHDRAWN.  DURING THE SAME PERIOD,
HOWEVER, 1,873 NEW CASES WERE DOCKETED.  THE TOTAL OF 1,380 CASES THUS
REMOVED FROM THE DOCKET DURING THE YEAR STILL FELL ALMOST 500 CASES
SHORT OF EQUALLING THE NUMBER OF NEW GRIEVANCES FILED.  AT THE END OF
THE YEAR, THE BOARD HAD STILL PENDING BEFORE IT SOME 6,461 CASES, OF
WHICH ONLY 1,679 HAD BEEN HEARD.  BY WAY OF COMPARISON, THOUGH THERE
WERE 4,948 CASES PENDING AT THE END OF THE FISCAL YEAR 1958, ONLY 415
OF THESE HAD NOT BEEN HEARD.  IN ONLY ONE OF THE PAST FIVE FISCAL YEARS
HAS THE BOARD EVEN COME CLOSE TO MAINTAINING AN EQUILIBRIUM IN ITS
BACKLOG BY BEING ABLE TO DISPOSE OF ALMOST AS MANY CASES AS WERE
DOCKETED DURING THE PERIOD.  TWENTY-EIGHTH ANNUAL REPORT OF THE
NATIONAL MEDIATION BOARD FOR FISCAL YEAR ENDED JUNE 30, 1962, PP. 59,
86. 
..END :













MAXIMOV V. UNITED STATES 373 U.S. 49 


NO. 240.  ARGUED MARCH 28, 1963.  - DECIDED APRIL 29, 1963.  - 299 F.2D
565, AFFIRMED. 


AN AMERICAN TRUST, CREATED IN THE UNITED STATES UNDER CONNECTICUT LAW
AND ADMINISTERED IN THE UNITED STATES BY AN AMERICAN TRUSTEE, THE
BENEFICIARIES OF WHICH ARE BRITISH SUBJECTS AND RESIDENTS AND WHICH
RETAINS CAPITAL GAINS INCOME REALIZED IN THIS COUNTRY IS NOT EXEMPT
FROM FEDERAL INCOME TAX ON SUCH GAINS BY VIRTUE OF A PROVISION OF THE
INCOME TAX CONVENTION BETWEEN THE UNITED STATES AND THE UNITED KINGDOM
WHICH EXEMPTS CAPITAL GAINS OF A "RESIDENT OF THE UNITED KINGDOM."  PP.
49-56. 

MAXIMOV, TRUSTEE V. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER AN AMERICAN TRUST WHOSE
BENEFICIARIES ARE BRITISH SUBJECTS AND RESIDENTS AND WHICH RETAINS
CAPITAL GAINS INCOME REALIZED IN THIS COUNTRY IS EXEMPT FROM FEDERAL
INCOME TAX ON SUCH GAINS BY VIRTUE OF A PROVISION OF THE INCOME TAX
CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED KINGDOM,
APRIL 16, 1945, 60 STAT. 1377, 1384, WHICH EXEMPTS CAPITAL GAINS OF A
"RESIDENT OF THE UNITED KINGDOM."  CERTIORARI WAS GRANTED, 371 U.S.
810, TO RESOLVE A CONFLICT BETWEEN THE DECISION OF THE COURT OF APPEALS
FOR THE SECOND CIRCUIT, 299 F.2D 565, DENYING THE EXEMPTION TO THE
DOMESTIC TRUST, THE PETITIONER IN THIS CASE, AND THE DECISION OF THE
COURT OF APPEALS FOR THE NINTH CIRCUIT IN AMERICAN TRUST CO. V. SMYTH,
247 F.2D 149, GRANTING THE EXEMPTION TO A DOMESTIC TRUST UNDER SIMILAR
CIRCUMSTANCES. 

                                        I. 

THE PETITIONER, REPRESENTED HERE BY ITS SUCCESSOR TRUSTEE, MAXIMOV, A
CITIZEN AND RESIDENT OF THE UNITED STATES, IS A PRIVATE TRUST CREATED
UNDER CONNECTICUT LAW IN 1947 BY AN INTER VIVOS DEED EXECUTED BY THE
GRANTOR, A RESIDENT AND CITIZEN OF THE UNITED KINGDOM.  A LIFETIME
INTEREST IN TRUST INCOME WAS RETAINED BY THE GRANTOR, HIS WIFE WAS
NAMED CONTINGENT SUCCESSOR INCOME BENEFICIARY FOR HER LIFE, AND THEIR
CHILDREN WERE DESIGNATED AS CONTINGENT REMAINDERMEN.  ALL OF THE
BENEFICIARIES WERE CITIZENS AND RESIDENTS OF THE UNITED KINGDOM AT THE
TIMES HERE RELEVANT. 

THE TRUST, WHICH IS ADMINISTERED IN THE UNITED STATES, REALIZED
CAPITAL GAINS INCOME UPON THE SALE OF CERTAIN OF ITS ASSETS DURING 1954
AND 1955.  IN ACCORDANCE WITH CONTROLLING CONNECTICUT LAW, WHICH THE
TRUST INSTRUMENT EXPRESSLY MAKES APPLICABLE, THESE GAINS WERE TREATED
AS ACCRETIONS TO CORPUS AND WERE NOT DISTRIBUTED.  PURSUANT TO UNITED
STATES INCOME TAX PROVISIONS APPLICABLE TO TRUSTS IN GENERAL, THE GAINS
WERE REPORTED AS PART OF THE TRUST'S INCOME ON FEDERAL FIDUCIARY TAX
RETURNS FILED BY THE TRUSTEE FOR THE YEARS IN QUESTION AND THE
APPROPRIATE AMOUNT OF TAX PAID THEREON. 

ASSERTING EXEMPTION FROM UNITED STATES TAX UNDER THE CONVENTION, THE
TRUSTEE FILED CLAIMS FOR REFUND WHICH WERE DISALLOWED BY THE INTERNAL
REVENUE SERVICE.  THE TRUSTEE THEN BROUGHT THIS SUIT IN THE FEDERAL
DISTRICT COURT SEEKING RECOVERY OF THE TAX ATTRIBUTABLE TO THE CAPITAL
GAINS.  MOTIONS FOR SUMMARY JUDGMENT WERE FILED BOTH BY THE PETITIONER
AND BY THE GOVERNMENT.  THE DISTRICT COURT DENIED THE GOVERNMENT'S
MOTION AND ENTERED JUDGMENT FOR THE PETITIONER IN THE FULL AMOUNT OF
THE TAX, HOLDING, UPON THE AUTHORITY OF THE SMYTH CASE, SUPRA, THAT THE
PETITIONER WAS ENTITLED TO EXEMPTION UNDER THE TREATY.  THE COURT OF
APPEALS FOR THE SECOND CIRCUIT REVERSED AND DENIED THE PETITIONER'S
CLAIM OF EXEMPTION UNDER THE CONVENTION.  IN SO DOING, THE SECOND
CIRCUIT EXPRESSLY REJECTED THE REASONING ADOPTED, AND RESULT REACHED,
BY THE NINTH CIRCUIT IN SMYTH. 

WE CONCLUDE THAT THE INTERPRETATION OF THE RELEVANT PROVISIONS OF THE
CONVENTION ADOPTED BY THE SECOND CIRCUIT IN THIS CASE IS THE ONE MORE
CONSONANT WITH ITS LANGUAGE, PURPOSE AND INTENT.  ACCORDINGLY, WE
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS BELOW, DENYING THE
EXEMPTION. 

                     II. 

UNDER UNITED STATES TAX LAWS, A TRUST, LIKE THE PETITIONER TRUST, IS
TREATED AS A SEPARATE TAXABLE ENTITY, APART FROM ITS BENEFICIARIES. 
SECS. 641, 7701(A)(1), (14), INT. REV. CODE OF 1954.  AND, UNDER
APPROPRIATE PROVISIONS OF THE INTERNAL REVENUE CODE, TRUST INCOME
NEITHER DISTRIBUTED NOR OTHERWISE TAXABLE DIRECTLY TO THE BENEFICIARIES
IS TAXABLE TO THE TRUST ENTITY.  SEE SECS. 641-668, INT. REV. CODE OF
1954.  UNDER THESE STATUTORY CONCEPTS OF TAXABILITY, THE GAINS HERE IN
QUESTION ARE PROPERLY INCLUDABLE IN, AND TAXABLE AS, GROSS INCOME OF
THE PETITIONER.  WHATEVER BASIS THERE MAY BE, THEREFORE, FOR RELIEVING
THE TRUST FROM TAX MUST BE FOUND IN THE WORDS OR IMPLICATIONS OF THE
CONVENTION. 

IN ASSERTING FREEDOM FROM LIABILITY FOR UNITED STATES INCOME TAX ON
ITS REALIZED AND RETAINED CAPITAL GAINS, THE PETITIONER TRUST RELIES ON
ARTICLE XIV OF THE CONVENTION, WHICH PROVIDES: 

"A RESIDENT OF THE UNITED KINGDOM NOT ENGAGED IN TRADE OR BUSINESS IN
THE UNITED STATES SHALL BE EXEMPT FROM UNITED STATES TAX ON GAINS FROM
THE SALE OR EXCHANGE OF CAPITAL ASSETS." 

THE PETITIONER ITSELF IS A UNITED STATES TRUST ESTABLISHED IN THIS
COUNTRY, GOVERNED BY THE LAWS OF ONE OF OUR STATES AND ADMINISTERED
HERE BY AN AMERICAN TRUSTEE.  IT IS PLAINLY NOT A "RESIDENT OF THE
UNITED KINGDOM," THE CLASS TO WHICH EXEMPTION UNDER ARTICLE XIV IS
EXPRESSLY LIMITED.  IT ARGUES, HOWEVER, THAT THE PURPOSES AND
OBJECTIVES OF THE TREATY REQUIRE THAT WE DISREGARD ITS IDENTITY AS A
SEPARATE TAXABLE ENTITY AND MEASURE THE APPLICATION OF THE EXEMPTIVE
PROVISION BY THE ECONOMIC IMPACT OF THE TAX WHICH WOULD OTHERWISE BE
IMPOSED.  THE PETITIONER THUS SAYS THAT SINCE THE REAL BURDEN OF TAX
FALLS UPON ITS BENEFICIARIES, ALL OF WHOM ARE RESIDENTS OF THE UNITED
KINGDOM AND OBJECTS OF THE TREATY PROTECTIONS, THE TREATY SHOULD BE
READ AS EXEMPTING THE TRUST FROM THE TAX ASSERTED BY THE UNITED
STATES.  MINDFUL THAT IT IS A TREATY WE ARE CONSTRUING, AND GIVING THE
CONVENTION ALL PROPER EFFECT, WE CANNOT, AND DO NOT, EITHER READ ITS
LANGUAGE OR CONCEIVE ITS PURPOSE AS ENCOMPASSING, MUCH LESS COMPELLING,
SO SIGNIFICANT A DEVIATION FROM NORMAL WORD USE OR DOMESTIC TAX
CONCEPTS. 

THE PLAIN LANGUAGE OF THE CONVENTION DOES NOT AFFORD ANY SUPPORT TO
THE PETITIONER'S ARGUMENT IN FAVOR OF DISREGARDING THE TRUST ENTITY. 
IN FACT, THE VERY WORDS OF THE TREATY IMPEL A CONTRARY READING.  THE
EXEMPTION PROVIDED BY ARTICLE XIV APPLIES IN TERMS ONLY TO A "RESIDENT
OF THE UNITED KINGDOM" AND ARTICLE II(1)(G) DEFINES SUCH A RESIDENT AS
"ANY PERSON (OTHER THAN A CITIZEN OF THE UNITED STATES OR A UNITED
STATES CORPORATION) WHO IS A RESIDENT IN THE UNITED KINGDOM FOR THE
PURPOSES OF UNITED KINGDOM TAX AND NOT A RESIDENT IN THE UNITED STATES
FOR THE PURPOSES OF UNITED STATES TAX."  THE WORD "PERSON" IS NOT
DEFINED IN THE TREATY AND WE ARE REFERRED BY ARTICLE II(3) OF THE
CONVENTION, THEREFORE, TO THE DOMESTIC TAX LAW OF THE COUNTRY APPLYING
THE TREATY, IN THIS CASE THE UNITED STATES, TO DETERMINE ITS MEANING. 
(FN1)  UNDER UNITED STATES TAX LAW, AND APPARENTLY UNDER BRITISH LAW AS
WELL, THE TERM "PERSON" INCLUDES A TRUST.  INT.  REV. CODE OF 1954,
SEC. 7701(A)(1); SEE HARVARD LAW SCHOOL, WORLD TAX SERIES, TAXATION IN
THE UNITED KINGDOM, PARA. 5/3.4, P. 127 (1957).  THUS, IT APPEARS QUITE
CLEARLY THAT, WITHIN THE MEANING OF THE CONVENTION, THE PETITIONER
TRUST IS A SEPARATE "PERSON" AND DISTINCT TAX ENTITY, APART FROM ITS
BENEFICIARIES.  SINCE THE PETITIONER MEETS NEITHER OF THE DEFINITIONAL
TESTS OF THE TREATY - IT IS NOT RESIDENT IN THE UNITED KINGDOM FOR
PURPOSES OF THAT SIGNATORY'S TAX AND IS A RESIDENT OF THE UNITED STATES
FOR PURPOSES OF THIS COUNTRY'S TAX - IT PLAINLY IS NOT A "RESIDENT OF
THE UNITED KINGDOM" EXEMPTED FROM UNITED STATES TAX BY THE CONVENTION. 

APPARENTLY RECOGNIZING THE IMPEDIMENTS OF THE LANGUAGE OF THE
EXEMPTIVE PROVISION INTERPRETED IN ACCORDANCE WITH ITS TERMS AND
PURSUANT TO THE STANDARDS SET OUT IN THE TREATY ITSELF, THE PETITIONER
ASSERTS THAT EQUALITY OF TAX TREATMENT WAS THE OBJECTIVE OF THE TREATY
AND THAT FURTHERANCE OF THIS OBJECTIVE COMPELS ADOPTION OF ITS THEORY
THAT EXEMPTION MUST BE ACCORDED WHENEVER THE BURDEN OF THE TAX WOULD
DIMINISH SUCH EQUALITY.  SINCE, IN GENERAL TERMS AT LEAST, THE UNITED
KINGDOM IMPOSES NO TAX ON CAPITAL GAINS, SAYS THE PETITIONER, NO
SIMILAR TAX SHOULD BE IMPOSED BY THE UNITED STATES HERE. 

THE IMMEDIATE AND COMPELLING ANSWER TO THIS CONTENTION IS THAT, AS
ALREADY NOTED, THE LANGUAGE OF THE CONVENTION ITSELF NOT ONLY FAILS TO
SUPPORT THE PETITIONER'S VIEW, BUT IS CONTRARY TO IT. MOREOVER, IT IS
PARTICULARLY INAPPROPRIATE FOR A COURT TO SANCTION A DEVIATION FROM THE
CLEAR IMPORT OF A SOLEMN TREATY BETWEEN THIS NATION AND A FOREIGN
SOVEREIGN, WHEN, AS HERE, THERE IS NO INDICATION THAT APPLICATION OF
THE WORDS OF THE TREATY ACCORDING TO THEIR OBVIOUS MEANING EFFECTS A
RESULT INCONSISTENT WITH THE INTENT OR EXPECTATIONS OF ITS
SIGNATORIES.  IT APPEARS FROM THE RELEVANT MATERIALS INSTRUCTIVE AS TO
THE INTENT OF THE PARTIES TO THE CONVENTION THAT THE GENERAL PURPOSE OF
THE TREATY WAS NOT ASSURE COMPLETE AND STRICT EQUALITY OF TAX TREATMENT
- A VIRTUALLY IMPOSSIBLE TASK IN LIGHT OF THE DIFFERENT TAX STRUCTURES
OF THE TWO NATIONS - BUT RATHER, AS APPEARS FROM THE PREAMBLE TO THE
CONVENTION ITSELF, TO FACILITATE COMMERCIAL EXCHANGE THROUGH
ELIMINATION OF DOUBLE TAXATION RESULTING FROM BOTH COUNTRIES LEVYING ON
THE SAME TRANSACTION OR PROFIT; AN ADDITIONAL PURPOSE WAS THE
PREVENTION OF FISCAL EVASION.  (FN2)  CERTAINLY, NEITHER OF THESE
PURPOSES REQUIRES THE GRANTING OF RELIEF IN THE SITUATION HERE
PRESENTED.  THERE IS CONCEDEDLY NO IMPOSITION OF A DOUBLE TAX ON THE
GAINS OF THE PETITIONER, SINCE NEITHER IT NOR ITS BENEFICARIES ARE
TAXED THEREON UNDER UNITED KINGDOM LAW.  SEE HARVARD LAW SCHOOL, WORLD
TAX SERIES, TAXATION IN THE UNITED KINGDOM, PARAS. 9/8.1, 10/7.2, PP.
277, 307-308.  MOREOVER, NO IMPAIRMENT OF, OR OBSTACLE TO, TRADE OR
COMMERCIAL INTERCOURSE IS THREATENED IN THE CONTEXT OF THIS CASE, AND
CONSIDERATIONS OF FISCAL EVASION ARE NOT HERE INVOLVED. 

EVEN TO THE EXTENT THAT ONE PURPOSE OF THE CONVENTION WAS TO SECURE A
MEASURE OF EQUALITY OF TAX TREATMENT, IT IS APPARENT FROM THE FACE OF
THE TREATY ITSELF THAT NO INVARIABLE OR INFLEXIBLE EQUALITY WAS SOUGHT
OR INTENDED.  IN FACT, THE TREATY CREATES SOME INEQALITIES OF
TREATMENT.  FOR EXAMPLE, THE VERY EXEMPTION PROVIDED BY ARTICLE XIV, ON
WHICH THE PETITIONER RELIES, IS LIMITED IN ITS APPLICATION TO UNITED
KINGDOM RESIDENTS WHO ARE NOT "ENGAGED IN TRADE OR BUSINESS IN THE
UNITED STATES."  THUS, NOT EVEN ALL UNITED KINGDOM RESIDENTS ARE IMMUNE
FROM CAPITAL GAINS TAXATION IN THIS COUNTRY, THOUGH UNITED STATES
RESIDENTS DOING BUSINESS OR CONDUCTING A TRADE IN THE UNITED KINGDOM
WOULD RECEIVE THE FULL BENEFIT OF THE ABSENCE OF A GENERAL CAPITAL
GAINS TAX THERE.  IT APPEARS THAT THE TREATY DID NOT REPRESENT AN
ATTEMPT TO EQUALIZE ALL DISPARITIES IN TAX TREATMENT BETWEEN ITS
SIGNATORIES.  TO THE EXTENT THAT COMPLETE EQUALITY WAS INTENDED, IT WAS
SPECIFICALLY PROVIDED.  WE CANNOT, IN SUCH A CONTEXT, READ THE TREATY
TO ACCORD UNINTENDED BENEFITS INCONSISTENT WITH ITS WORDS AND NOT
COMPELLINGLY INDICATED BY ITS IMPLICATIONS.  (FN3)  TO SAY THAT WE
SHOULD GIVE A BROAD AND EFFICACIOUS SCOPE TO A TREATY DOES NOT MEAN
THAT WE MUST SWEEP WITHIN THE CONVENTION WHAT ARE LEGALLY AND
TRADITIONALLY RECONGIZED TO BE DOMESTIC TAXPAYERS NOT CLEARLY WITHIN
ITS PROTECTIONS; WE WOULD NOT EXPECT THE UNITED KINGDOM TO EXEMPT
SIMILARLY RECOGNIZED BRITISH TAXPAYERS NOT LUCIDLY INTENDED TO BE FREED
OF ITS TAXES. 

THIS, OF COURSE, DOES NOT MEAN THAT THE TREATY FAILS TO PROVIDE
BILATERAL BENEFITS TO RESIDENTS OF BOTH THE UNITED STATES AND THE
UNITED KINGDOM.  A RESIDENT OF THE UNITED KINGDOM REALIZING CAPITAL
GAINS IN THIS COUNTRY IS APPROPRIATELY PROTECTED AND EXEMPT, AND THE
CONGRESS HAS ADOPTED PROVISIONS FULLY IMPLEMENTING THE OPERATIVE
DIMENSIONS OF THE TREATY.  THE INTERNAL REVENUE CODE CONTAINS SECTIONS
DESIGNED TO GIVE EFFECT TO EXEMPTIONS OF THIS TYPE AND TO ASSURE
CONSISTENCY WITH TAX TREATY OBLIGATIONS IN GENERAL.  SEE, E.G., INT.
REV. CODE OF 1954, SECS. 894, 7852(D).  OUR INTERPRETATION AFFORDS
EVERY BENEFIT NEGOTIATED FOR BY THE PARTIES TO THE CONVENTION ON BEHALF
OF THEIR RESPECTIVE RESIDENTS AND PREVENTS AN UNINTENDED TAX WINDFALL
TO A PRIVATE PARTY.  THE LANGUAGE AND PURPOSES OF THE TREATY ARE AMPLY
SERVED BY ADHERING TO ITS CLEAR IMPORT LIMITING EXEMPTION TO "RESIDENTS
OF THE UNITED KINGDOM" FALLING WITHIN THE EXEMPTIVE PURVIEW.  THE
PETITIONER, A RESIDENT AMERICAN TRUST, IS PROPERLY SUBJECT TO UNITED
STATES INCOME TAX ON ITS RETAINED CAPITAL GAINS.  ACCORDINGLY, THE
JUDGMENT BELOW IS AFFIRMED. 

FN1  ARTICLE II(3) OF THE CONVENTION PROVIDES: 

"IN THE APPLICATION OF THE PROVISIONS OF THE PRESENT CONVENTION BY
ONE OF THE CONTRACTING PARTIES ANY TERM NOT OTHERWISE DEFINED SHALL,
UNLESS THE CONTEXT OTHERWISE REQUIRES, HAVE THE MEANING WHICH IT HAS
UNDER THE LAWS OF THAT CONTRACTING PARTY RELATING TO THE TAXES WHICH
ARE THE SUBJECT OF THE PRESENT CONVENTION." 

FN2  THE PREAMBLE RECITES THAT THE PARTIES DESIRED "TO CONCLUDE A
CONVENTION FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF
FISCAL EVASION WITH RESPECT TO TAXES ON INCOME."  SEE ALSO HEARINGS
BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON FOREIGN RELATIONS, ON
CONVENTIONS WITH GREAT BRITAN AND NORTHERN IRELAND RESPECTING INCOME
AND ESTATE TAXES, S. EXEC. DOCS.  D AND E, 79TH CONG., 1ST SESS. 1-2. 

FN3  TREATMENT OF THE PETITIONER TRUST AS A TAXABLE ENTITY FOR
PURPOSES OF CONSTRUING THE TREATY EXEMPTION AND IMPOSITION OF LIABILITY
FOR TAX ON ITS UNDISTRIBUTED CAPITAL GAINS IS NOT ONLY MANDATED BY THE
TERMS OF THE TREATY ITSELF, THE APPARENT INTENTION OF ITS SIGNATORIES,
AND THE CONTEXT IN WHICH NEGOTIATED, BUT IS CONSISTENT WITH LONG
STANDING ADMINISTRATIVE PRACTICE AND REGULATIONS, SEE T.D. 5569, 1947-2
CUM. BULL.  100, SEC. 7.519(C), AND WITH THE ADMINISTRATIVE
INTERPRETATION ACCORDED MANY OTHER UNITED STATES TAX CONVENTIONS
LIMITING SUCH EXEMPTIONS TO ITEMS OF INCOME DISTRIBUTED OR OTHERWISE
NORMALLY DIRECTLY TAXABLE TO THE TRUST BENEFICIARIES.  SEE, E.G.,
AUSTRALIA, T.D. 6108, 1954-2 CUM. BULL.  614, SEC. 501.10; BELGIUM,
T.D. 6160, 1956-1 CUM. BULL.  815, SEC. 504.119; SWITZERLAND, T.D.
6149, 1955-2 CUM. BULL.  814, SEC. 509.121. 
..END :
























HAWAII V. GORDON 373 U.S. 57 


NO. 12, ORIGINAL.  ARGUED APRIL 15, 1963.  - DECIDED APRIL 29, 1963.  -
COMPLAINT DISMISSED. 


THE STATE OF HAWAII FILED THIS ORIGINAL ACTION AGAINST THE DIRECTOR OF
THE BUREAU OF THE BUDGET UNDER ART. III, SEC. 2, OF THE CONSTITUTION,
SEEKING TO OBTAIN AN ORDER REQUIRING HIM TO (1) WITHDRAW HIS ADVICE TO
FEDERAL AGENCIES THAT SEC. 5(E) OF THE HAWAII STATEHOOD ACT, WHICH
PROVIDES FOR THE CONVEYANCE TO THE STATE OF LAND "NO LONGER NEEDED BY
THE UNITED STATES," DOES NOT APPLY TO LANDS OBTAINED BY THE UNITED
STATES THROUGH PURCHASE, CONDEMNATION OR GIFT; (2) DETERMINE WHETHER A
CERTAIN TRACT OF LAND IN HAWAII ACQUIRED BY THE UNITED STATES THROUGH
CONDEMNATION WAS "NEEDED BY THE UNITED STATES"; AND (3) CONVEY THIS
LAND, IF NOT NEEDED, TO HAWAII.  HELD:  THE COMPLAINT IS DISMISSED,
BECAUSE THIS IS A SUIT AGAINST THE UNITED STATES WHICH HAS NOT
CONSENTED TO THE MAINTENANCE OF SUCH A SUIT AGAINST IT.  PP. 57-58. 

HAWAII V. GORDON. 

ON BILL OF COMPLAINT. 

PER CURIAM. 

(SUPP. II, 1960), PP. 1257-1261, PROVIDES THAT WITHIN FIVE YEARS FROM
THE DATE HAWAII IS ADMITTED TO THE UNION FEDERAL AGENCIES HAVING
CONTROL OVER LAND OR PROPERTIES RETAINED BY THE UNITED STATES UNDER
SEC. 5(C) AND (D) OF THE ACT SHALL REPORT TO THE PRESIDENT AS TO THE
"CONTINUED NEED FOR SUCH LAND OR PROPERTY, AND IF THE PRESIDENT
DETERMINES THAT THE LAND OR PROPERTY IS NO LONGER NEEDED BY THE UNITED
STATES IT SHALL BE CONVEYED TO THE STATE OF HAWAII."  THE PRESIDENT
DESIGNATED THE DIRECTOR OF THE BUREAU OF THE BUDGET TO PERFORM HIS
FUNCTIONS THEREUNDER.  THE DIRECTOR THEREAFTER, PURSUANT TO AN OPINION
OF THE ATTORNEY GENERAL, 42 OP. ATTY. GEN. (NO. 4), CONCLUDED, AND SO
ADVISED FEDERAL AGENCIES, THAT THE LANDS REFERRED TO IN SEC. 5(E) DO
NOT INCLUDE LANDS OBTAINED BY THE UNITED STATES THROUGH PURCHASE,
CONDEMNATION OR GIFT BUT ARE LIMITED TO LANDS WHICH AT ONE TIME
BELONGED TO HAWAII AND WERE CEDED TO THE UNITED STATES OR ACQUIRED IN
EXCHANGE THEREFOR. 

HAWAII FILED THIS ORIGINAL ACTION AGAINST THE DIRECTOR, UNDER ART.
III, SEC. 2, OF THE CONSTITUTION OF THE UNITED STATES, SEEKING TO
OBTAIN AN ORDER REQUIRING HIM TO WITHDRAW THIS ADVICE TO THE FEDERAL
AGENCIES, DETERMINE WHETHER A CERTAIN 203 ACRES OF LAND IN HAWAII
ACQUIRED BY THE UNITED STATES THROUGH CONDEMNATION WAS LAND OR
PROPERTIES "NEEDED BY THE UNITED STATES" AND, IF NOT NEEDED, TO CONVEY
THIS LAND TO HAWAII.  WE HAVE CONCLUDED THAT THIS IS A SUIT AGAINST THE
UNITED STATES AND, ABSENT ITS CONSENT, CANNOT BE MAINTAINED BY THE
STATE.  THE GENERAL RULE IS THAT RELIEF SOUGHT NOMINALLY AGAINST AN
OFFICER IS IN FACT AGAINST THE SOVEREIGN IF THE DECREE WOULD OPERATE
AGAINST THE LATTER.  E.G., DUGAN V. RANK, 372 U.S. 609 (1963); MALONE
V. BOWDOIN, 369 U.S. 643 (1962); LARSON V. DOMESTIC & FOREIGN CORP.,
337 U.S. 682 (1949).  HERE THE ORDER REQUESTED WOULD REQUIRE THE
DIRECTOR'S OFFICIAL AFFIRMATIVE ACTION, AFFECT THE PUBLIC
ADMINISTRATION OF GOVERNMENT AGENCIES AND CAUSE AS WELL THE DISPOSITION
OF PROPERTY ADMITTEDLY BELONGING TO THE UNITED STATES.  THE COMPLAINT
IS THEREFORE DISMISSED.  OREGON V. HITCHCOCK, 202 U.S. 60 (1906). 
DISMISSED. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











WHITE V. MARYLAND 373 U.S. 59 


NO. 600.  ARGUED APRIL 16, 1963.  - DECIDED APRIL 29, 1963.  - 227 MD.
615, 177 A.2D 877, REVERSED. 


ARRESTED ON A CHARGE OF MURDER, PETITIONER WAS TAKEN BEFORE A MARYLAND
MAGISTRATE FOR A PRELIMINARY HEARING, AND HE PLEADED GUILTY WITHOUT
HAVING THE ADVICE OR ASSISTANCE OF COUNSEL.  COUNSEL WAS LATER
APPOINTED FOR HIM, AND HE PLEADED NOT GUILTY AT HIS FORMAL
"ARRAIGNMENT"; BUT THE PLEA OF GUILTY MADE AT THE PRELIMINARY HEARING
WAS INTRODUCED IN EVIDENCE AT HIS TRIAL, AND HE WAS CONVICTED AND
SENTENCED TO DEATH.  HELD:  ABSENCE OF COUNSEL FOR PETITIONER WHEN HE
ENTERED THE PLEA OF GUILTY BEFORE THE MAGISTRATE VIOLATED HIS RIGHTS
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  HAMILTON V.
ALABAMA, 368 U.S. 52.  PP. 59-60. 

WHITE V. MARYLAND. 

CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

PETITIONER, WHO WAS SENTENCED TO DEATH WHILE HIS CODEFENDANT WAS
GIVEN LIFE, APPEALED TO THE MARYLAND COURT OF APPEALS WHICH AFFIRMED
HIS CONVICTION.  227 MD. 615, 177 A.2D 877.  WE GRANTED CERTIORARI
"LIMITED TO THE POINT OF LAW RAISED IN HAMILTON V. ALABAMA, 368 U.S.
52."  SEE 371 U.S. 909. 

PETITIONER WAS ARRESTED ON MAY 27, 1960, AND BROUGHT BEFORE A
MAGISTRATE ON MAY 31, 1960, FOR A PRELIMINARY HEARING.  BUT THAT
HEARING WAS POSTPONED AND NOT ACTUALLY HELD UNTIL AUGUST 9, 1960.  AT
THAT TIME PETITIONER WAS NOT YET REPRESENTED BY A LAWYER.  WHEN
ARRAIGNED AT THAT PRELIMINARY HEARING HE PLEADED GUILTY.  WHAT MARYLAND
CALLS THE "ARRAIGNMENT" WAS FIRST HELD SEPTEMBER 8, 1960; BUT SINCE
PETITIONER WAS NOT REPRESENTED BY COUNSEL, HIS ARRAIGNMENT WAS
POSTPONED AND COUNSEL APPOINTED FOR HIM ON SEPTEMBER 9, 1960.  HE WAS
FINALLY ARRAIGNED ON NOVEMBER 25, 1960, AND ENTERED PLEAS OF "NOT
GUILTY" AND "NOT GUILTY BY REASON OF INSANITY."  AT HIS TRIAL THE PLEA
OF GUILTY MADE AT THE PRELIMINARY HEARING ON AUGUST 9, 1960, WAS
INTRODUCED IN EVIDENCE.*  SINCE HE DID NOT HAVE COUNSEL AT THE TIME OF
THE PRELIMINARY HEARING, HE ARGUED THAT HAMILTON V. ALABAMA, SUPRA,
APPLIED.  THE COURT OF APPEALS DISAGREED, SAYING THAT ARRAIGNMENT IN
ALABAMA IS "A CRITICAL STAGE IN A CRIMINAL PROCEEDING" WHERE RIGHTS ARE
PRESERVED OR LOST (368 U.S. 53-54), WHILE UNDER MARYLAND LAW THERE WAS
"NO REQUIREMENT (NOR ANY PRACTICAL POSSIBILITY UNDER OUR PRESENT
CRIMINAL PROCEDURE) TO APPOINT COUNSEL" FOR PETITIONER AT THE
"PRELIMINARY HEARING  ...  NOR WAS IT NECESSARY FOR APPELLANT TO ENTER
A PLEA AT THAT TIME."  227 MD., AT 625, 177 A.2D, AT 882. 

*ALTHOUGH PETITIONER DID NOT OBJECT TO THE INTRODUCTION OF THIS
EVIDENCE AT THE TRIAL (227 MD., AT 619-620, 177 A.2D, AT 879), THE
RATIONALE OF HAMILTON V. ALABAMA, SUPRA, DOES NOT REST, AS WE SHALL
SEE, ON SHOWING OF PREJUDICE. 

WHATEVER MAY BE THE NORMAL FUNCTION OF THE "PRELIMINARY HEARING"
UNDER MAYRLAND LAW, IT WAS IN THIS CASE AS "CRITICAL" A STAGE AS
ARRAIGNMENT UNDER ALABAMA LAW.  FOR PETITIONER ENTERED A PLEA BEFORE
THE MAGISTRATE AND THAT PLEA WAS TAKEN AT A TIME WHEN HE HAD NO
COUNSEL. 

WE REPEAT WHAT WE SAID IN HAMILTON V. ALABAMA, SUPRA, AT 55, THAT WE
DO NOT STOP TO DETERMINE WHETHER PREJUDICE RESULTED:  "ONLY THE
PRESENCE OF COUNSEL COULD HAVE ENABLED THIS ACCUSED TO KNOW ALL THE
DEFENSES AVAILABLE TO HIM AND TO PLEAD INTELLIGENTLY."  WE THEREFORE
HOLD THAT HAMILTON V. ALABAMA GOVERNS AND THAT THE JUDGMENT BELOW MUST
BE AND IS REVERSED. 
..END :







JOHNSON V. VIRGINIA 373 U.S. 61 


NO. 715.  DECIDED APRIL 29, 1963.  - REVERSED. 


PETITIONER, A NEGRO, WAS CONVICTED OF CONTEMPT OF COURT SOLELY BECAUSE
HE REFUSED TO COMPLY WITH A JUDGE'S INSTRUCTIONS TO SIT IN THE SECTION
OF A COURTROOM RESERVED FOR NEGROES.  HELD: A STATE MAY NOT REQUIRE
RACIAL SEGREGATION IN A COURTROOM, AND THE CONVICTION IS REVERSED.  PP.
61-62. 

JOHNSON V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE
SUPREME COURT OF APPEALS OF VIRGINIA IS REVERSED, AND THE CASE IS
REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

THE PETITIONER, FORD T. JOHNSON, JR., WAS CONVICTED OF CONTEMPT OF
THE TRAFFIC COURT OF THE CITY OF RICHMOND, VIRGINIA, AND APPEALED HIS
CONVICTION TO THE HUSTINGS COURT, WHERE HE WAS TRIED WIHTOUT A JURY AND
AGAIN CONVICTED.  THE SUPREME COURT OF APPEALS OF VIRGINIA REFUSED TO
GRANT A WRIT OF ERROR ON THE GROUND THAT THE JUDGMENT APPEALED FROM WAS
"PLAINLY RIGHT," BUT THE CHIEF JUSTICE OF THAT COURT STAYED EXECUTION
OF THE JUDGMENT PENDING DISPOSITION OF THIS PETITION FOR CERTIORARI. 

THE EVIDENCE AT PETITIONER'S TRIAL IN THE HUSTINGS COURT IS
SUMMARIZED IN AN APPROVED STATEMENT OF FACTS.  ACCORDING TO THIS
STATEMENT, THE WITNESSES FOR THE STATE TESTIFIED AS FOLLOWS:  THE
PETITIONER, A NEGRO, WAS SEATED IN THE TRAFFIC COURT IN A SECTION
RESERVED FOR WHITES, AND WHEN REQUESTED TO MOVE BY THE BAILIFF, REFUSED
TO DO SO.  THE JUDGE THEM SUMMONED THE PETITIONER TO THE BENCH AND
INSTRUCTED HIM TO BE SEATED IN THE RIGHT-HAND SECTION OF THE COURTROOM,
THE SECTION RESERVED FOR NEGROES.  THE PETITIONER MOVED BACK IN FRONT
OF THE COUNSEL TABLE AND REMAINED STANDING WITH HIS ARMS FOLDED,
STATING THAT HE PREFERRED STANDING AND INDICATING THAT HE WOULD NOT
COMPLY WITH THE JUDGE'S ORDER.  UPON REFUSAL TO OBEY THE JUDGE'S
FURTHER DIRECTION TO BE SEATED, THE PETITIONER WAS ARRESTED FOR
CONTEMPT.  AT NO TIME DID HE BEHAVE IN A BOISTEROUS OR ABUSIVE MANNER,
AND THERE WAS NO DISORDER IN THE COURTROOM.  THE STATE, IN ITS BRIEF IN
OPPOSITION FILED IN THIS COURT, CONCEDES THAT IN THE SECTION OF THE
RICHMOND TRAFFIC COURT RESERVED FOR SPECTATORS, SEATING SPACE "IS
ASSIGNED ON THE BASIS OF RACIAL DESIGNATION, THE SEATS ON ONE SIDE OF
THE AISLE BEING FOR USE OF NEGRO CITIZENS AND THE SEATS ON THE OTHER
SIDE BEING FOR THE USE OF WHITE CITIZENS." 

IT IS CLEAR FROM THE TOTALITY OF CIRCUMSTANCES, AND PARTICULARLY THE
FACT THAT THE PETITIONER WAS PEACEABLY SEATED IN THE SECTION RESERVED
FOR WHITES BEFORE BEING SUMMONED TO THE BENCH, THAT THE ARREST AND
CONVICTION RESTED ENTIRELY ON THE REFUSAL TO COMPLY WITH THE SEGREGATED
SEATING REQUIREMENTS IMPOSED IN THIS PARTICULAR COURTROOM.  SUCH A
CONVICTION CANNOT STAND, FOR IT IS NO LONGER OPEN TO QUESTION THAT A
STATE MAY NOT CONSTITUTIONALLY REQUIRE SEGREGATION OF PUBLIC
FACILITIES.  SEE, E.G., BROWN V. BOARD OF EDUCATION, 347 U.S. 483;
MAYOR AND CITY COUNCIL OF BALTIMORE V. DAWSON, 350 U.S. 877; TURNER V.
MEMPHIS, 369 U.S. 350.  STATE-COMPELLED SEGREGATION IN A COURT OF
JUSTICE IS A MANIFEST VIOLATION OF THE STATE'S DUTY TO DENY NO ONE THE
EQUAL PROTECTION OF ITS LAWS.  REVERSED AND REMANDED. 
..END :












FOREMAN V. CITY OF BELLEFONTAINE 373 U.S. 63 


NO. 878.  DECIDED APRIL 29, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


FOREMAN ET UX. V. CITY OF BELLEFONTAINE. 

APPEAL FROM THE COURT OF APPEALS OF OHIO, LOGAN COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















A.L. KORNMAN CO. V. PACK 373 U.S. 63 


NO. 775.  DECIDED APRIL 29, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  210 TENN. 491, 360
S.W.2D 30. 


A.L. KORNMAN CO. V. PACK, COMMISSIONER OF HIGHWAYS OF TENNESSEE. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















COLORADO ANTI-DISCRIMINATION COMMISSION V. CONTINENTAL AIR LINES, INC.
372 U.S. 714 


NO. 146.  ARGUED MARCH 28, 1963.  - DECIDED APRIL 22, 1963.* - 149 COLO.
259, 368 P.2D 970, REVERSED. 

*TOGETHER WITH NO. 492, GREEN V. CONTINENTAL AIR LINES, INC., ON
CERTIORARI TO THE SAME COURT. 


AFTER ADMINISTRATIVE HEARINGS, THE COLORADO ANTI-DISCRIMINATION
COMMISSION FOUND THAT RESPONDENT, AN INTERSTATE AIR CARRIER WITH
HEADQUARTERS IN COLORADO, HAD, WITHIN THAT STATE, REJECTED THE
APPLICATION OF A NEGRO FOR A JOB AS A PILOT SOLELY BECAUSE OF HIS RACE
AND THAT THIS WAS AN UNFAIR EMPLOYMENT PRACTICE PROHIBITED BY THE
COLORADO ANTI-DISCRIMINATION ACT OF 1957, AND IT ORDERED RESPONDENT TO
CEASE AND DESIST FROM SUCH DISCRIMINATORY PRACTICES AND TO GIVE THE
COMPLAINANT THE FIRST OPPORTUNITY TO ENROLL IN ITS TRAINING SCHOOL IN
ITS NEXT COURSE.  ON REVIEW, A STATE COURT HELD THAT THE ACT COULD NOT
CONSTITUTIONALLY BE APPLIED TO THE FLIGHT CREW OF AN INTERSTATE AIR
CARRIER, AND IT SET ASIDE THE COMMISSION'S FINDINGS AND DISMISSED THE
COMPLAINT.  THE SUPREME COURT OF COLORADO AFFIRMED.  HELD:  THE
JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS.  PP. 716-725. 

(A)  THE JUDGMENT BELOW DOES NOT REST UPON AN INDEPENDENT AND
ADEQUATE STATE GROUND BUT UPON THE STATE SUPREME COURT'S APPLICATION
AND INTERPRETATION OF THE FEDERAL CONSTITUTION, FEDERAL STATUTES AND
EXECUTIVE ORDERS, AND THIS COURT HAS JURISDICTION ON CERTIORARI.  P.
718. 

(B)  COLORADO'S REQUIREMENT THAT RESPONDENT REFRAIN FROM RACIAL
DISCRIMINATION IN ITS HIRING OF PILOTS IN THAT STATE DOES NOT UNDULY
BURDEN INTERSTATE COMMERCE.  HALL V. DECUIR, 95 U.S. 485, AND MORGAN V.
VIRGINIA, 328 U.S. 373, DISTINGUISHED.  PP. 718-722. 

(C)  THIS FIELD HAS NOT BEEN SO PERVASIVELY COVERED OR PREEMPTED BY
THE CIVIL AERONAUTICS ACT OF 1938, NOW THE FEDERAL AVIATION ACT OF
1958, THE RAILWAY LABOR ACT OR EXECUTIVE ORDERS AS TO PREVENT COLORADO
FROM APPLYING ITS ANTI-DISCRIMINATION ACT TO RESPONDENT, AS IT DID
HERE.  PP. 722-725. 

COLORADO ANTI-DISCRIMINATION COMMISSION ET AL. V. CONTINENTAL AIR LINES,
INC. 

CERTIORARI TO THE SUPREME COURT OF COLORADO. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER MARLON D. GREEN, A NEGRO, APPLIED FOR A JOB AS A PILOT WITH
RESPONDENT CONTINENTAL AIR LINES, INC., AN INTERSTATE AIR CARRIER.  HIS
APPLICATION WAS SUBMITTED AT CONTINENTAL'S HEADQUARTERS IN DENVER,
COLORADO, AND WAS LATER CONSIDERED AND REJECTED THERE.  GREEN THEN MADE
COMPLAINT TO THE COLORADO ANTI-DISCRIMINATION COMMISSION THAT
CONTINENTAL HAD REFUSED TO HIRE HIM BECAUSE HE WAS A NEGRO.  THE
COLORADO ANTI-DISCRIMINATION ACT OF 1957 PROVIDES THAT IT IS AN UNFAIR
EMPLOYMENT PRACTICE FOR AN EMPLOYER "TO REFUSE TO HIRE, TO DISCHARGE,
TO PROMOTE OR DEMOTE, OR TO DISCRIMINATE IN MATTERS OF COMPENSATION
AGAINST, ANY PERSON OTHERWISE QUALIFIED, BECAUSE OF RACE, CREED, COLOR,
NATIONAL ORIGIN OR ANCESTRY."  (FN1)  AFTER INVESTIGATION AND EFFORTS
AT CONCILIATION, THE COMMISSION HELD EXTENSIVE HEARINGS AND FOUND AS A
FACT "THAT THE ONLY REASON THAT THE COMPLAINANT WAS NOT SELECTED FOR
THE TRAINING SCHOOL WAS BECAUSE OF HIS RACE."  (FN2)  THE COMMISSION
ORDERED CONTINENTAL TO CEASE AND DESIST FROM SUCH DISCRIMINATORY
PRACTICES AND TO "GIVE TO THE COMPLAINANT THE FIRST OPPORTUNITY TO
ENROLL IN ITS TRAINING SCHOOL IN ITS NEXT COURSE  ...  ."  ON REVIEW
THE DISTRICT COURT IN AND FOR THE CITY AND COUNTY OF DENVER SET ASIDE
THE COMMISSION'S FINDINGS AND DISMISSED GREEN'S COMPLAINT.  IT HELD
THAT THE ANTI-DISCRIMINATION ACT COULD NOT "CONSTITUTIONALLY BE
EXTENDED TO COVER THE FLIGHT CREW PERSONNEL OF AN INTERSTATE AIR
CARRIER" BECAUSE IT WOULD IMPOSE AN UNDUE BURDEN UPON COMMERCE IN
VIOLATION OF ART. I, SEC. 8, CL. 3, OF THE UNITED STATES CONSTITUTION,
WHICH GIVES CONGRESS POWER "TO REGULATE COMMERCE  ...  AMONG THE
SEVERAL STATES  ... ," AND BECAUSE THE FIELD OF LAW CONCERNING RACIAL
DISCRIMINATION IN THE INTERSTATE OPERATION OF CARRIERS IS PREEMPTED BY
THE RAILWAY LABOR ACT, (FN3) THE CIVIL AERONAUTICS ACT OF 1938, (FN4)
AND FEDERAL EXECUTIVE ORDERS.  THE SUPREME COURT OF COLORADO AFFIRMED
THE JUDGMENT OF DISMISSAL BUT DISCUSSED ONLY THE QUESTION OF WHETHER
THE ACT AS APPLIED PLACED AN UNDUE BURDEN ON COMMERCE, CONCLUDING THAT
IT DID.  149 COLO. 259, 368 P.2D 970 (1962).  THE OBVIOUS IMPORTANCE OF
EVEN PARTIAL INVALIDATION OF A STATE LAW DESIGNED TO PREVENT THE
DISCRIMINATORY DENIAL OF JOB OPPORTUNITIES PROMPTED US TO GRANT
CERTIORARI.  371 U.S. 809 (1962). 

FIRST.  CONTINENTAL ARGUES THAT THE STATE SUPREME COURT DECISION
RESTED ON AN INDEPENDENT AND ADEQUATE NONFEDERAL GROUND.  FOR THAT
ARGUMENT, IT RELIES ON THE TRIAL COURT'S STATEMENT "THAT THE COLORADO
LEGISLATURE WAS NOT ATTEMPTING TO LEGISLATE CONCERNING PROBLEMS
INVOLVING INTERSTATE COMMERCE" AND THE STATEMENT OF THE SUPREME COURT
OF COLORADO THAT: 

"THE ONLY QUESTION RESOLVED WAS THAT OF JURISDICTION.  THE TRIAL
COURT DETERMINED THAT THE ACT WAS INAPPLICABLE TO EMPLOYEES OF THOSE
ENGAGED IN INTERSTATE COMMERCE, AND THE JUDGMENT WAS BASED EXCLUSIVELY
ON THAT GROUND."  149 COLO., AT 265, 368 P.2D, AT 973. 

WE REJECT THIS CONTENTION.  THE TRIAL COURT ITSELF DID NOT REST ON
THIS GROUND.  INSTEAD, IT CLEARLY AND UNEQUIVOCALLY STATED THAT THE
CASE PRESENTED A CONSTITUTIONAL QUESTION OF WHETHER THE ACT COULD
LEGALLY BE APPLIED TO INTERSTATE OPERATIONS.  NOR DID THE SUPREME COURT
OF COLORADO RELY ON THIS GROUND.  IT INTERPRETED THE TRIAL COURT'S
OPINION AS HAVING HELD THAT THE ACT WAS INVALID INSOFAR AS IT REGULATED
INTERSTATE AIR CARRIERS.  THE COURT FURTHER STATED THAT THE QUESTION
WAS WHETHER THE ACT COULD BE APPLIED TO INTERSTATE CARRIERS, WHICH IT
ANSWERED BY CONCLUDING THAT UNDER THE FEDERAL CONSTITUTION THE STATE
LEGISLATURE HAD NO POWER TO DEAL WITH SUCH MATTERS.  WE ARE SATISFIED
THAT THE COURTS BELOW RESTED THEIR JUDGMENTS ON THEIR INTERPRETATION OF
THE UNITED STATES CONSTITUTION AND THE PREEMPTIVE EFFECT OF FEDERAL
STATUTES AND EXECUTIVE ORDERS. 

SECOND.  IN HOLDING THAT THE COLORADO STATUTE IMPOSED AN UNDUE BURDEN
ON COMMERCE, THE STATE SUPREME COURT RELIED ON THE PRINCIPLE, FIRST
STATED IN COOLEY V. BOARD OF WARDENS OF THE PORT OF PHILADELPHIA, 12
HOW.  299, THAT STATES HAVE NO POWER TO ACT IN THOSE AREAS OF
INTERSTATE COMMERCE WHICH BY THEIR NATURE REQUIRE UNIFORMITY OF
REGULATION, EVEN THOUGH CONGRESS HAS NOT LEGISLATED ON THE SUBJECT. 
(FN5)  THE STATE COURT READ TWO PRIOR DECISIONS OF THIS COURT, HALL V.
DECUIR, 95 U.S. 485 (1878), AND MORGAN V. VIRGINIA, 328 U.S. 373
(1946), AS HAVING ESTABLISHED THAT THE FIELD OF RACIAL DISCRIMINATION
BY AN INTERSTATE CARRIER MUST BE FREE FROM DIVERSE STATE REGULATION AND
GOVERNED UNIFORMLY, IF AT ALL, BY CONGRESS.  WE DO NOT BELIEVE THOSE
CASES STATED SO ENCOMPASSING A RULE.  THE LINE SEPARATING THE POWERS OF
A STATE FROM THE EXCLUSIVE POWER OF CONGRESS IS NOT ALWAYS DISTINCTLY
MARKED; COURTS MUST EXAMINE CLOSELY THE FACTS OF EACH CASE TO DETERMINE
WHETHER THE DANGERS AND HARDSHIPS OF DIVERSE REGULATION JUSTIFY
FORECLOSING A STATE FROM THE EXERCISE OF ITS TRADITIONAL POWERS.  THIS
WAS EMPHATICALLY POINTED OUT IN HALL V. DECUIR, SUPRA, THE VERY CASE
UPON WHICH CONTINENTAL CHIEFLY RELIES: 

"JUDGES NOT UNFREQUENTLY DIFFER IN THEIR REASONS FOR A DECISION IN
WHICH THEY CONCUR.  UNDER SUCH CIRCUMSTANCES IT WOULD BE A USELESS TASK
TO UNDERTAKE TO FIX AN ARBITRARY RULE BY WHICH THE LINE MUST IN ALL
CASES BE LOCATED.  IT IS FAR BETTER TO LEAVE A MATTER OF SUCH DELICACY
TO BE SETTLED IN EACH CASE UPON A VIEW OF THE PARTICULAR RIGHTS
INVOLVED.  95 U.S., AT 488. 

THE CIRCUMSTANCES IN HALL V. DECUIR WERE THAT A LOUISIANA LAW
FORBIDDING CARRIERS TO DISCRIMINATE ON ACCOUNT OF RACE OR COLOR HAD
BEEN APPLIED SO AS TO HOLD A STEAMBOAT OWNER LIABLE FOR DAMAGES FOR
ASSIGNING A COLORED PASSENGER TO ONE CABIN RATHER THAN ANOTHER.  THIS
WAS HELD TO VIOLATE THE COMMERCE CLAUSE, BUT ONLY AFTER A CAREFUL
ANALYSIS OF THE EFFECTS OF THE LAW ON THAT CARRIER AND ITS PASSENGERS. 
AMONG OTHER THINGS, THE COURT POINTED OUT THAT IF EACH OF THE 10 STATES
BORDERING THE MISSISSIPPI RIVER WERE FREE TO REGULATE THE CARRIER AND
TO PROVIDE FOR ITS OWN PASSENGERS AND FREIGHT, THE RESULTING CONFUSION
WOULD PRODUCE GREAT INCONVENIENCE AND UNNECESSARY HARDSHIPS.  THE COURT
CONCLUDED THAT: 

"COMMERCE CANNOT FLOURISH IN THE MIDST OF SUCH EMBARRASSMENTS.  NO
CARRIER OF PASSENGERS CAN CONDUCT HIS BUSINESS WITH SATISFACTION TO
HIMSELF, OR COMFORT TO THOSE EMPLOYING HIM, IF ON ONE SIDE OF A STATE
LINE HIS PASSENGERS, BOTH WHITE AND COLORED, MUST BE PERMITTED TO
OCCUPY THE SAME CABIN, AND ON THE OTHER BE KEPT SEPARATE.  UNIFORMITY
IN THE REGULATIONS BY WHICH HE IS TO BE GOVERNED FROM ONE END TO THE
OTHER OF HIS ROUTE IS A NECESSITY IN HIS BUSINESS  ...  ."  95 U.S., AT
489. 

AFTER THE SAME KIND OF ANALYSIS, THE COURT IN MORGAN V. VIRGINIA,
SUPRA, HELD THAT A VIRGINIA LAW REQUIRING SEGREGATION OF MOTOR CARRIER
PASSENGERS, INCLUDING THOSE ON INTERSTATE JOURNEYS, INFRINGED THE
COMMERCE CLAUSE BECAUSE UNIFORM REGULATION WAS ESSENTIAL.  THE COURT
EMPHASIZED THE RESTRICTION ON THE PASSENGERS' FREEDOM TO CHOOSE
ACCOMMODATIONS AND THE INCONVENIENCE OF CONSTANTLY REQUIRING PASSENGERS
TO SHIFT SEATS.  AS IN HALL V. DECUIR, THE COURT EXPLICITLY RECOGNIZED
THE ABSENCE OF ANY ONE, SURE TEST FOR DECIDING THESE BURDEN-ON-COMMERCE
CASES.  IT CONCLUDED, HOWEVER, THAT THE CIRCUMSTANCES BEFORE IT SHOWED
THAT THERE WOULD BE A PRACTICAL INTERFERENCE WITH CARRIER
TRANSPORTATION IF DIVERSE STATE LAWS WERE PERMITTED TO STAND.  THE
IMPORTANCE OF A PARTICULARIZED INQUIRY INTO THE EXISTENCE OF A BURDEN
ON COMMERCE IS AGAIN ILLUSTRATED BY BOB-LO EXCURSION CO. V. MICHIGAN,
333 U.S. 28 (1948), WHERE THE COURT HAD BEFORE IT A STATE STATUTE
REQUIRING COMMON CARRIERS TO SERVE ALL PEOPLE ALIKE REGARDLESS OF
COLOR.  THE COURT UPHELD THE LAW AS APPLIED TO STEAMSHIPS TRANSPORTING
PATRONS BETWEEN MICHIGAN AND CANADA.  FOLLOWING THE RULE THAT EACH CASE
MUST BE ADJUDGED ON ITS PARTICULAR FACTS, THE COURT CONCLUDED THAT
NEITHER HALL NOR MORGAN WAS "COMPARABLE IN ITS FACTS, WHETHER IN THE
DEGREE OF LOCALIZATION OF THE COMMERCE INVOLVED; IN THE ATTENUATING
EFFECTS, IF ANY, UPON THE COMMERCE  ...  ; OR IN ANY ACTUAL PROBABILITY
OF CONFLICTING REGULATIONS BY DIFFERENT SOVEREIGNTIES."   333 U.S., AT
39. 

WE ARE NOT CONVINCED THAT COMMERCE WILL BE UNDULY BURDENED IF
CONTINENTAL IS REQUIRED BY COLORADO TO REFRAIN FROM RACIAL
DISCRIMINATION IN ITS HIRING OF PILOTS IN THAT STATE.  NOT ONLY IS THE
HIRING WITHIN A STATE OF AN EMPLOYEE, EVEN FOR AN INTERSTATE JOB, A
MUCH MORE LOCALIZED MATTER THAN THE TRANSPORTING OF PASSENGERS FROM
STATE TO STATE (FN6) BUT MORE SIGNIFICANTLY THE THREAT OF DIVERSE AND
CONFLICTING REGULATION OF HIRING PRACTICES IS VIRTUALLY NONEXISTENT. 
IN HALL AND IN MORGAN THE COURT ASSUMED THE VALIDITY BOTH OF STATE LAWS
REQUIRING SEGREGATION AND OF STATE LAWS FORBIDDING SEGREGATION.  WERE
THERE A POSSIBILITY THAT A PILOT HIRED IN COLORADO COULD BE BARRED
SOLELY BECAUSE OF HIS COLOR FROM SERVING A CARRIER IN ANOTHER STATE,
THEN THIS CASE MIGHT WELL BE CONTROLLED BY OUR PRIOR HOLDINGS.  BUT
UNDER OUR MORE RECENT DECISIONS (FN7) ANY STATE OR FEDERAL LAW
REQUIRING APPLICANTS FOR ANY JOB TO BE TURNED AWAY BECAUSE OF THEIR
COLOR WOULD BE INVALID UNDER THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT AND THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT.  THE KIND OF BURDEN THAT WAS THOUGHT POSSIBLE IN
THE HALL AND MORGAN CASES, THEREFORE, SIMPLY CANNOT EXIST HERE.  IT IS,
OF COURSE, POSSIBLE THAT STATES COULD IMPOSE SUCH ONEROUS, HARASSING,
AND CONFLICTING CONDITIONS ON AN INTERSTATE CARRIER'S HIRING OF
EMPLOYEES THAT THE BURDEN WOULD HAMPER THE CARRIER'S SATISFACTORY
PERFORMANCE OF ITS FUNCTIONS.  BUT THAT IS NOT THIS CASE.  WE HOLD THAT
THE COLORADO STATUTE AS APPLIED HERE TO PREVENT DISCRIMINATION IN
HIRING ON ACCOUNT OF RACE DOES NOT IMPOSE A CONSTITUTIONALLY PROHIBITED
BURDEN UPON INTERSTATE COMMERCE. 

THIRD.  CONTINENTAL ARGUES THAT FEDERAL LAW HAS SO PERVASIVELY
COVERED THE FIELD OF PROTECTING PEOPLE IN INTERSTATE COMMERCE FROM
RACIAL DISCRIMINATION THAT THE STATES ARE BARRED FROM ENACTING
LEGISLATION IN THIS FIELD.  IT IS NOT CONTENDED, HOWEVER, THAT THE
COLORADO STATUTE IS IN DIRECT CONFLICT WITH FEDERAL LAW, (FN8) THAT IT
DENIES RIGHTS GRANTED BY CONGRESS, (FN9) OR THAT IT STANDS AS AN
OBSTACLE TO THE FULL EFFECTIVENESS OF A FEDERAL STATUTE.  (FN10)
RATHER CONTINENTAL ARGUES THAT: 

"WHEN CONGRESS HAS TAKEN THE PARTICULAR SUBJECT-MATTER IN HAND
COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION, AND A STATE LAW IS NOT TO
BE DECLARED A HELP BECAUSE IT ATTEMPTS TO GO FARTHER THAN CONGRESS HAS
SEEN FIT TO GO."  (FN11) 

BUT THIS COURT HAS ALSO SAID THAT THE MERE "FACT OF IDENTITY DOES NOT
MEAN THE AUTOMATIC INVALIDITY OF STATE MEASURES."  (FN12)  TO HOLD THAT
A STATE STATUTE IDENTICAL IN PURPOSE WITH A FEDERAL STATUTE IS INVALID
UNDER THE SUPREMACY CLAUSE, WE MUST BE ABLE TO CONCLUDE THAT THE
PURPOSE OF THE FEDERAL STATUTE WOULD TO SOME EXTENT BE FRUSTRATED BY
THE STATE STATUTE.  WE CAN REACH NO SUCH CONCLUSION HERE. 

CONTINENTAL RELIES FIRST ON THE CIVIL AERONAUTICS ACT OF 1938, (FN13)
NOW THE FEDERAL AVIATION ACT OF 1958, (FN14) AND ITS BROAD GENERAL
PROVISIONS FORBIDDING AIR CARRIERS TO SUBJECT ANY PARTICULAR PERSON TO
"ANY UNJUST DISCRIMINATION OR ANY UNDUE OR UNREASONABLE PREJUDICE OR
DISADVANTAGE IN ANY RESPECT WHATSOEVER" (FN15) AND REQUIRING "THE
PROMOTION OF ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE BY AIR
CARRIERS AT REASONABLE CHARGES, WITHOUT UNJUST DISCRIMINATIONS, UNDUE
PREFERENCES OR ADVANTAGES, OR UNFAIR OR DESTRUCTIVE COMPETITIVE
PRACTICES  ...  ."  (FN16)  THIS IS A FAMILIAR TYPE OF REGULATION,
AIMED PRIMARILY AT RATE DISCRIMINATION INJURIOUS TO SHIPPERS,
COMPETITORS, AND LOCALITIES.  (FN17)  BUT WE MAY ASSUME, FOR PRESENT
PURPOSES, THAT THESE PROVISIONS PROHIBIT RACIAL DISCRIMINATION AGAINST
PASSENGERS AND OTHER CUSTOMERS (FN18) AND THAT THEY PROTECT JOB
APPLICANTS OR EMPLOYEES FROM DISCRIMINATION ON ACCOUNT OF RACE.  THE
CIVIL AERONAUTICS BOARD AND THE ADMINISTRATOR OF THE FEDERAL AVIATION
AGENCY HAVE INDEED BROAD AUTHORITY OVER FLIGHT CREWS OF AIR CARRIERS,
(FN19) MUCH OF WHICH HAS BEEN EXERCISED BY REGULATIONS.  (FN20)
NOTWITHSTANDING THIS BROAD AUTHORITY, WE ARE SATISFIED THAT CONGRESS IN
THE CIVIL AERONAUTICS ACT OF 1938 AND ITS SUCCESSOR HAD NO EXPRESS OR
IMPLIED INTENT TO BAR STATE LEGISLATION IN THIS FIELD AND THAT THE
COLORADO STATUTE, AT LEAST SO LONG AS ANY POWER THE CIVIL AERONAUTICS
BOARD MAY HAVE REMAINS "DORMANT AND UNEXERCISED," (FN21) WILL NOT
FRUSTRATE ANY PART OF THE PURPOSE OF THE FEDERAL LEGISLATION.  (FN22) 

THERE IS EVEN LESS REASON TO SAY THAT CONGRESS, IN PASSING THE
RAILWAY LABOR ACT (FN23) AND MAKING CERTAIN OF ITS PROVISIONS
APPLICABLE TO AIR CARRIERS, INTENDED TO BAR STATES FROM PROTECTING
EMPLOYEES AGAINST RACIAL DISCRIMINATION.  NO PROVISION IN THE ACT EVEN
MENTIONS DISCRIMINATION IN HIRING.  IT IS TRUE THAT IN SEVERAL CASES WE
HAVE HELD THAT THE EXCLUSIVE BARGAINING AGENTS AUTHORIZED BY THE ACT
MUST NOT USE THEIR POWERS TO DISCRIMINATE AGAINST MINORITY GROUPS WHOM
THEY ARE SUPPOSED TO REPRESENT.  (FN24)  AND WE HAVE HELD THAT
EMPLOYERS TOO MAY BE ENJOINED FROM CARRYING OUT PROVISIONS OF A
DISCRIMINATORY BARGAINING AGREEMENT.  (FN25)  BUT THE DUTY THE ACT
IMPOSES IS ONE OF FAIR REPRESENTATION AND IT IS IMPOSED UPON THE
UNION.  THE EMPLOYER IS MERELY PROHIBITED FROM AIDING THE UNION IN
BREACHING ITS DUTY.  NOTHING IN THE RAILWAY LABOR ACT OR IN OUR CASES
SUGGESTS THAT THE ACT PLACES UPON AN AIR CARRIER A DUTY TO ENGAGE ONLY
IN FAIR NONDISCRIMINATORY HIRING PRACTICES.  THE ACT HAS NEVER BEEN
USED FOR THAT PURPOSE, AND WE CANNOT HOLD IT BARS COLORADO'S ANTI
DISCRIMINATION ACT.    FINALLY, WE REJECT THE ARGUMENT THAT COLORADO'S
ANTI-DISCRIMINATION ACT CANNOT CONSTITUTIONALLY BE ENFORCED BECAUSE OF
EXECUTIVE ORDERS REQUIRING GOVERNMENT CONTRACTING AGENCIES TO INCLUDE
IN THEIR CONTRACTS CLAUSES BY WHICH CONTRACTORS AGREE NOT TO
DISCRIMINATE AGAINST EMPLOYEES OR APPLICANTS BECAUSE OF THEIR RACE,
RELIGION, COLOR, OR NATIONAL ORIGIN.  (FN26)  THE DISTRICT COURT
PURPORTED TO TAKE JUDICIAL NOTICE THAT "A CERTIFICATED COMMERCIAL
CARRIER BY AIR (SUCH AS RESPONDENT) IS OBLIGATED TO AND IN FACT DOES
TRANSPORT UNITED STATES MAIL UNDER CONTRACT WITH THE UNITED STATES
GOVERNMENT."  THE GOVERNMENT ANSWERS THAT IN FACT IT HAS NO CONTRACT
WITH CONTINENTAL AND THAT, WHILE 49 U.S.C. SEC. 1375 REQUIRES AIR LINES
TO CARRY MAIL, IT DOES NOT FORBID DISCRIMINATION ON ACCOUNT OF RACE OR
COMPEL THE EXECUTION OF A CONTRACT SUBJECT TO EXECUTIVE ORDERS.  WE DO
NOT REST ON THIS GROUND ALONE, HOWEVER, NOR DO WE REACH THE QUESTION OF
WHETHER AN EXECUTIVE ORDER CAN FORECLOSE STATE LEGISLATION.  IT IS
IMPOSSIBLE FOR US TO BELIEVE THAT THE EXECUTIVE INTENDED FOR ITS ORDERS
TO REGULATE AIR CARRIER DISCRIMINATION AMONG EMPLOYEES SO PERVASIVELY
AS TO PREEMPT STATE LEGISLATION INTENDED TO ACCOMPLISH THE SAME
PURPOSE. 

THE JUDGMENT OF THE SUPREME COURT OF COLORADO IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  COLO. REV. STAT. ANN. (SUPP. 1960) SEC. 80-24-6. 

FN2  THE COMMISSION ALSO FOUND THAT CONTINENTAL WAS "GUILTY OF A
DISCRIMINATORY AND UNFAIR EMPLOYMENT PRACTICE IN REQUIRING ON ITS
APPLICATION FORM, THE RACIAL IDENTITY OF THE APPLICANT AND THE
REQUIREMENT OF A PHOTO TO BE ATTACHED TO THE APPLICATION," CONTRARY TO
THE COMMISSION'S REGULATION. 

FN3  44 STAT. 577, AS AMENDED, 45 U.S.C. SECS. 151-188. 

FN4  52 STAT. 973, AS AMENDED, 49 U.S.C. (1952 ED.)  SECS.  401-722,
NOW FEDERAL AVIATION ACT OF 1958, 72 STAT. 731, 49 U.S.C. SECS. 1301
1542. 

FN5  IT IS NOT CLAIMED IN THIS CASE THAT THE COLORADO ACT
DISCRIMINATED AGAINST INTERSTATE COMMERCE, SEE, E.G., BEST & CO. V.
MAXWELL, 311 U.S. 454 (1940), OR THAT IT PLACES A SUBSTANTIAL ECONOMIC
BURDEN ON CONTINENTAL, SEE, E.G., BIBB V. NAVAJO FREIGHT LINES, 359
U.S. 520 (1959). 

FN6  SEE, E.G., CALIFORNIA V. THOMPSON, 313 U.S. 109 (1941); ERIE R.
CO. V. WILLIAMS, 233 U.S. 685 (1914). 

FN7  E.G., BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954); BOLLING
V. SHARPE, 347 U.S. 497 (1954); BAILEY V. PATTERSON, 369 U.S. 31
(1962). 

FN8  SEE MCDERMOTT V. WISCONSIN, 228 U.S. 115 (1913). 

FN9  SEE, E.G., UNITED MINE WORKERS V. ARKANSAS OAK FLOORING CO., 351
U.S. 62 (1956). 

FN10  SEE, E.G., HILL V. FLORIDA, 325 U.S. 538 (1945); HINES V.
DAVIDOWITZ, 312 U.S. 52 (1941). 

FN11  CHARLESTON & W.C.R. CO. V. VARNVILLE FURNITURE CO., 237 U.S.
597, 604 (1915). 

FN12  CALIFORNIA V. ZOOK, 336 U.S. 725, 730 (1949). 

FN13  52 STAT. 973, AS AMENDED, 49 U.S.C. (1952 ED.)  SECS.  401
722. 

FN14  THE CIVIL AERONAUTICS ACT OF 1938 WAS SUBSTANTIALLY REENACTED
BY THE FEDERAL AVIATION ACT OF 1958, 72 STAT. 731, 49 U.S.C. SECS. 1301
1542.  SOME OF THE POWERS AND DUTIES OF THE CIVIL AERONAUTICS BOARD
WERE TRANSFERRED TO THE ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY. 

FN15  49 U.S.C. (1952 ED.)  SEC.  484(B), NOW 49 U.S.C. SEC.
1374(B). 

FN16  49 U.S.C. (1952 ED.)  SEC.  402(C), NOW 49 U.S.C. SEC.
1302(C). 

FN17  COMPARE INTERSTATE COMMERCE ACT SEC. 3(1), 49 U.S.C. SEC.
3(1). 

FN18  SEE FITZGERALD V. PAN AMERICAN WORLD AIRWAYS, 229 F.2D 499
(C.A.2D CIR. 1956); UNITED STATES V. CITY OF MONTGOMERY, 201 F. SUPP.
590 (M.D. ALA. 1962); CF.  HENDERSON V. UNITED STATES, 339 U.S. 816
(1950); MITCHELL V. UNITED STATES, 313 U.S. 80 (1941). 

FN19  SEE 49 U.S.C. (1952 ED.)  SECS.  552, 559, NOW 49 U.S.C. SECS.
1422, 1429. 

FN20  SEE, E.G., 14 CFR SECS. 20.40, 20.42-20.45, 20.121, 21.1,
40.300. 

FN21  BETHLEHEM STEEL CO. V. NEW YORK STATE LABOR REL. BD., 330 U.S.
767, 775 (1947).  SEE PARKER V. BROWN, 317 U.S. 341 (1943); H.P. WELCH
CO. V. NEW HAMPSHIRE, 306 U.S. 79 (1939). 

FN22  IF THE FEDERAL AUTHORITIES SEEK TO DEAL WITH DISCRIMINATION IN
HIRING PRACTICES AND THEIR POWER TO DO SO IS UPHELD, THAT WOULD RAISE
QUESTIONS NOT PRESENTED HERE.  COMPARE CALIFORNIA V. THOMPSON, 313 U.S.
109 (1941), WITH CALIFORNIA V. ZOOK, 336 U.S. 725 (1949). 

FN23  44 STAT. 577, AS AMENDED, 45 U.S.C. SECS. 151-188. 

FN24  SEE, E.G., CONLEY V. GIBSON, 355 U.S. 41 (1957); STEELE V.
LOUISIANA & NASHVILLE R. CO., 323 U.S. 192 (1944). 

FN25  SEE, E.G., BROTHERHOOD OF R. TRAINMEN V. HOWARD, 343 U.S. 768,
775 (1952). 

FN26  EXECUTIVE ORDER NO. 10479, 18 FED. REG. 4899 (AUG. 13, 1953),
EXECUTIVE ORDER NO. 10557, 19 FED. REG. 5655 (SEPT. 3, 1954), BOTH
REVOKED AND SUPERSEDED BY EXECUTIVE ORDER NO. 10925, 26 FED. REG. 1977
(MAR. 6, 1961). 
..END :























FERGUSON V. SKRUPA DBA CREDIT ADVISORS 372 U.S. 726 


NO. 111.  ARGUED MARCH 20, 1963.  - DECIDED APRIL 22, 1963.  - 210 F.
SUPP. 200, REVERSED. 


1.  A KANSAS STATUTE MAKING IT A MISDEMEANOR FOR ANY PERSON TO ENGAGE
"IN THE BUSINESS OF DEBT ADJUSTING," EXCEPT AS AN INCIDENT TO "THE
LAWFUL PRACTICE OF LAW," DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, SINCE STATES HAVE POWER TO LEGISLATE AGAINST WHAT
THEY CONSIDER TO BE INJURIOUS PRACTICES IN THEIR INTERNAL COMMERCIAL
AND BUSINESS AFFAIRS, SO LONG AS THEIR LAWS DO NOT CONFLICT WITH SOME
SPECIFIC FEDERAL CONSTITUTIONAL PROHIBITION OR SOME VALID FEDERAL LAW. 
PP. 726-732. 

2.  THE STATUTE'S EXCEPTION OF LAWYERS IS NOT A DENIAL OF EQUAL
PROTECTION OF THE LAWS TO NONLAWYERS.  PP. 732-733. 

FERGUSON, ATTORNEY GENERAL OF KANSAS, ET AL. V. SKRUPA, DOING BUSINESS
AS CREDIT ADVISORS. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE, PROPERLY HERE ON APPEAL UNDER 28 U.S.C. SEC. 1253, WE
ARE ASKED TO REVIEW THE JUDGMENT OF A THREE-JUDGE DISTRICT COURT
ENJOINING, AS BEING IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, A KANSAS STATUTE MAKING IT A MISDEMEANOR FOR ANY
PERSON TO ENGAGE "IN THE BUSINESS OF DEBT ADJUSTING" EXCEPT AS AN
INCIDENT TO "THE LAWFUL PRACTICE OF LAW IN THIS STATE."   (FN1)  THE
STATUTE DEFINES "DEBT ADJUSTING" AS "THE MAKING OF A CONTRACT, EXPRESS,
OR IMPLIED WITH A PARTICULAR DEBTOR WHEREBY THE DEBTOR AGREES TO PAY A
CERTAIN AMOUNT OF MONEY PERIODICALLY TO THE PERSON ENGAGED IN THE DEBT
ADJUSTING BUSINESS WHO SHALL FOR A CONSIDERATION DISTRIBUTE THE SAME
AMONG CERTAIN SPECIFIED CREDITORS IN ACCORDANCE WITH A PLAN AGREED
UPON." 

THE COMPLAINT, FILED BY APPELLEE SKRUPA DOING BUSINESS AS "CREDIT
ADVISORS," ALLEGED THAT SKRUPA WAS ENGAGED IN THE BUSINESS OF "DEBT
ADJUSTING" AS DEFINED BY THE STATUTE, THAT HIS BUSINESS WAS A "USEFUL
AND DESIRABLE" ONE, THAT HIS BUSINESS ACTIVITIES WERE NOT "INHERENTLY
IMMORAL OR DANGEROUS" OR IN ANY WAY CONTRARY TO THE PUBLIC WELFARE, AND
THAT THEREFORE THE BUSINESS COULD NOT BE "ABSOLUTELY PROHIBITED" BY
KANSAS.  THE THREE-JUDGE COURT HEARD EVIDENCE BY SKRUPA TENDING TO SHOW
THE USEFULNESS AND DESIRABILITY OF HIS BUSINESS AND EVIDENCE BY THE
STATE OFFICIALS TENDING TO SHOW THAT "DEBT ADJUSTING" LENDS ITSELF TO
GRAVE ABUSES AGAINST DISTRESSED DEBTORS, PARTICULARLY IN THE LOWER
INCOME BRACKETS, AND THAT THESE ABUSES ARE OF SUCH GRAVITY THAT A
NUMBER OF STATES HAVE STRICTLY REGULATED "DEBT ADJUSTING" OR PROHIBITED
IT ALTOGETHER.  (FN2)  THE COURT FOUND THAT SKRUPA'S BUSINESS DID FALL
WITHIN THE ACT'S PROSCRIPTION AND CONCLUDED, ONE JUDGE DISSENTING, THAT
THE ACT WAS PROHIBITORY, NOT REGULATORY, BUT THAT EVEN IF CONSTRUED IN
PART AS REGULATORY IT WAS AN UNREASONABLE REGULATION OF A "LAWFUL
BUSINESS," WHICH THE COURT HELD AMOUNTED TO A VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE COURT ACCORDINGLY
ENJOINED ENFORCEMENT OF THE STATUTE.  (FN3) 

THE ONLY CASE DISCUSSED BY THE COURT BELOW AS SUPPORT FOR ITS
INVALIDATION OF THE STATUTE WAS COMMONWEALTH V. STONE, 191 PA. SUPER. 
117, 155 A.2D 453 (1959), IN WHICH THE SUPERIOR COURT OF PENNSYLVANIA
STRUCK DOWN A STATUTE ALMOST IDENTICAL TO THE KANSAS ACT INVOLVED
HERE.  IN STONE THE PENNSYLVANIA COURT HELD THAT THE STATE COULD
REGULATE, BUT COULD NOT PROHIBIT, A "LEGITIMATE" BUSINESS.  FINDING
DEBT ADJUSTING, CALLED "BUDGET PLANNING" IN THE PENNSYLVANIA STATUTE,
NOT TO BE "AGAINST THE PUBLIC INTEREST" AND CONCLUDING THAT IT COULD
"SEE NO JUSTIFICATION FOR SUCH INTERFERENCE" WITH THIS BUSINESS, THE
PENNSYLVANIA COURT RULED THAT STATE'S STATUTE TO BE UNCONSTITUTIONAL. 
IN DOING SO, THE PENNSYLVANIA COURT RELIED HEAVILY ON ADAMS V. TANNER,
244 U.S. 590 (1917), WHICH HELD THAT THE DUE PROCESS CLAUSE FORBIDS A
STATE TO PROHIBIT A BUSINESS WHICH IS "USEFUL" AND NOT "INHERENTLY
IMMORAL OR DANGEROUS TO PUBLIC WELFARE." 

BOTH THE DISTRICT COURT IN THE PRESENT CASE AND THE PENNSYLVANIA
COURT IN STONE ADOPTED THE PHILOSOPHY OF ADAMS V. TANNER, AND CASES
LIKE IT, THAT IT IS THE PROVINCE OF COURTS TO DRAW ON THEIR OWN VIEWS
AS TO THE MORALITY, LEGITIMACY, AND USEFULNESS OF A PARTICULAR BUSINESS
IN ORDER TO DECIDE WHETHER A STATUTE BEARS TOO HEAVILY UPON THAT
BUSINESS AND BY SO DOING VIOLATES DUE PROCESS.  UNDER THE SYSTEM OF
GOVERNMENT CREATED BY OUR CONSTITUTION, IT IS UP TO LEGISLATURES, NOT
COURTS, TO DECIDE ON THE WISDOM AND UTILITY OF LEGISLATION.  THERE WAS
A TIME WHEN THE DUE PROCESS CLAUSE WAS USED BY THIS COURT TO STRIKE
DOWN LAWS WHICH WERE THOUGHT UNREASONABLE, THAT IS, UNWISE OR
INCOMPATIBLE WITH SOME PARTICULAR ECONOMIC OR SOCIAL PHILOSOPHY.  IN
THIS MANNER THE DUE PROCESS CLAUSE WAS USED, FOR EXAMPLE, TO NULLIFY
LAWS PRESCRIBING MAXIMUM HOURS FOR WORK IN BAKERIES, LOCHNER V. NEW
YORK, 198 U.S. 45 (1905), OUTLAWING "YELLOW DOG" CONTRACTS, COPPAGE V.
KANSAS, 236 U.S. 1 (1915), SETTING MINIMUM WAGES FOR WOMEN, ADKINS V.
CHILDREN'S HOSPITAL, 261 U.S. 525 (1923), AND FIXING THE WEIGHT OF
LOAVES OF BREAD, JAY BURNS BAKING CO. V. BRYAN, 264 U.S. 504 (1924). 
THIS INSTRUSION BY THE JUDICIARY INTO THE REALM OF LEGISLATIVE VALUE
JUDGMENTS WAS STRONGLY OBJECTED TO AT THE TIME, PARTICULARLY BY MR.
JUSTICE HOLMES AND MR. JUSTICE BRANDEIS.  DISSENTING FROM THE COURT'S
INVALIDATING A STATE STATUTE WHICH REGULATED THE RESALE PRICE OF
THEATRE AND OTHER TICKETS, MR. JUSTICE HOLMES SAID: 

"I THINK THE PROPER COURSE IS TO RECOGNIZE THAT A STATE LEGISLATURE
CAN DO WHATEVER IT SEES FIT TO DO UNLESS IT IS RESTRAINED BY SOME
EXPRESS PROHIBITION IN THE CONSTITUTION OF THE UNITED STATES OR OF THE
STATE, AND THAT COURTS SHOULD BE CAREFUL NOT TO EXTEND SUCH
PROHIBITIONS BEYOND THEIR OBVIOUS MEANING BY READING INTO THEM
CONCEPTIONS OF PUBLIC POLICY THAT THE PARTICULAR COURT MAY HAPPEN TO
ENTERTAIN."  (FN4) 

AND IN AN EARLIER CASE HE HAD EMPHASIZED THAT, "THE CRITERION OF
CONSTITUTIONALITY IS NOT WHETHER WE BELIEVE THE LAW TO BE FOR THE
PUBLIC GOOD."  (FN5) 

THE DOCTRINE THAT PREVAILED IN LOCHNER, COPPAGE, ADKINS, BURNS, AND
LIKE CASES - THAT DUE PROCESS AUTHORIZES COURTS TO HOLD LAWS
UNCONSTITUTIONAL WHEN THEY BELIEVE THE LEGISLATURE HAS ACTED UNWISELY -
HAS LONG SINCE BEEN DISCARDED.  WE HAVE RETURNED TO THE ORIGINAL
CONSTITUTIONAL PROPOSITION THAT COURTS DO NOT SUBSTITUTE THEIR SOCIAL
AND ECONOMIC BELIEFS FOR THE JUDGMENT OF LEGISLATIVE BODIES, WHO ARE
ELECTED TO PASS LAWS.  AS THIS COURT STATED IN A UNANIMOUS OPINION IN
1941, "WE ARE NOT CONCERNED  ...  WITH THE WISDOM, NEED, OR
APPROPRIATENESS OF THE LEGISLATION."  (FN6)  LEGISLATIVE BODIES HAVE
BROAD SCOPE TO EXPERIMENT WITH ECONOMIC PROBLEMS, AND THIS COURT DOES
NOT SIT TO "SUBJECT THE STATE TO AN INTOLERABLE SUPERVISION HOSTILE TO
THE BASIC PRINCIPLES OF OUR GOVERNMENT AND WHOLLY BEYOND THE PROTECTION
WHICH THE GENERAL CLAUSE OF THE FOURTEENTH AMENDMENT WAS INTENDED TO
SECURE."  (FN7)  IT IS NOW SETTLED THAT STATES "HAVE POWER TO LEGISLATE
AGAINST WHAT ARE FOUND TO BE INJURIOUS PRACTICES IN THEIR INTERNAL
COMMERCIAL AND BUSINESS AFFAIRS, SO LONG AS THEIR LAWS DO NOT RUN AFOUL
OF SOME SPECIFIC FEDERAL CONSTITUTIONAL PROHIBITION, OR OF SOME VALID
FEDERAL LAW."  (FN8) 

IN THE FACE OF OUR ABANDONMENT OF THE USE OF THE "VAGUE CONTOURS"
(FN9) OF THE DUE PROCESS CLAUSE TO NULLIFY LAWS WHICH A MAJORITY OF THE
COURT BELIEVED TO BE ECONOMICALLY UNWISE, RELIANCE ON ADAMS V. TANNER
IS AS MISTAKEN AS WOULD BE ADHERENCE TO ADKINS V. CHILDREN'S HOSPITAL,
OVERRULED BY WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379 (1937).  NOT
ONLY HAS THE PHILOSOPHY OF ADAMS BEEN ABANDONED, BUT ALSO THIS COURT
ALMOST 15 YEARS AGO EXPRESSLY POINTED TO ANOTHER OPINION OF THIS COURT
AS HAVING "CLEARLY UNDERMINED" ADAMS.  (FN10)  WE CONCLUDE THAT THE
KANSAS LEGISLATURE WAS FREE TO DECIDE FOR ITSELF THAT LEGISLATION WAS
NEEDED TO DEAL WITH THE BUSINESS OF DEBT ADJUSTING.  UNQUESTIONABLY,
THERE ARE ARGUMENTS SHOWING THAT THE BUSINESS OF DEBT ADJUSTING HAS
SOCIAL UTILITY, BUT SUCH ARGUMENTS ARE PROPERLY ADDRESSED TO THE
LEGISLATURE, NOT TO US.  WE REFUSE TO SIT AS A "SUPERLEGISLATURE TO
WEIGH THE WISDOM OF LEGISLATION," (FN11) AND WE EMPHATICALLY REFUSE TO
GO BACK TO THE TIME WHEN COURTS USED THE DUE PROCESS CLAUSE "TO STRIKE
DOWN STATE LAWS, REGULATORY OF BUSINESS AND INDUSTRIAL CONDITIONS,
BECAUSE THEY MAY BE UNWISE, IMPROVIDENT, OR OUT OF HARMONY WITH A
PARTICULAR SCHOOL OF THOUGHT."  (FN12)  NOR ARE WE ABLE OR WILLING TO
DRAW LINES BY CALLING A LAW "PROHIBITORY" OR "REGULATORY."  WHETHER THE
LEGISLATURE TAKES FOR ITS TEXTBOOK ADAM SMITH, HERBERT SPENCER, LORD
KEYNES, OR SOME OTHER IS NO CONCERN OF OURS.  (FN13)  THE KANSAS DEBT
ADJUSTING STATUTE MAY BE WISE OR UNWISE.  BUT RELIEF, IF ANY BE NEEDED,
LIES NOT WITH US BUT WITH THE BODY CONSTITUTED TO PASS LAWS FOR THE
STATE OF KANSAS.  (FN14) 

NOR IS THE STATUTE'S EXCEPTION OF LAWYERS A DENIAL OF EQUAL
PROTECTION OF THE LAWS TO NONLAWYERS.  STATUTES CREATE MANY
CLASSIFICATIONS WHICH DO NOT DENY EQUAL PROTECTION; IT IS ONLY
"INVIDIOUS DISCRIMINATION" WHICH OFFENDS THE CONSTITUTION.  (FN15)  THE
BUSINESS OF DEBT ADJUSTING GIVES RISE TO A RELATIONSHIP OF TRUST IN
WHICH THE DEBT ADJUSTER WILL, IN A SITUATION OF INSOLVENCY, BE
MARSHALLING ASSETS IN THE MANNER OF A PROCEEDING IN BANKRUPTCY.  THE
DEBT ADJUSTER'S CLIENT MAY NEED ADVICE AS TO THE LEGALITY OF THE
VARIOUS CLAIMS AGAINST HIM, REMEDIES EXISTING UNDER STATE LAWS
GOVERNING DEBTOR-CREDITOR RELATIONSHIPS, OR PROVISIONS OF THE
BANKRUPTCY ACT - ADVICE WHICH A NONLAWYER CANNOT LAWFULLY GIVE HIM.  IF
THE STATE OF KANSAS WANTS TO LIMIT DEBT ADJUSTING TO LAWYERS, (FN16)
THE EQUAL PROTECTION CLAUSE DOES NOT FORBID IT.  WE ALSO FIND NO MERIT
IN THE CONTENTION THAT THE FOURTEENTH AMENDMENT IS VIOLATED BY THE
FAILURE OF THE KANSAS STATUTE'S TITLE TO BE AS SPECIFIC AS APPELLEE
THINKS IT OUGHT TO BE UNDER THE KANSAS CONSTITUTION.  REVERSED. 

FN1  KAN. GEN. STAT. (SUPP. 1961) SEC. 21-2464. 

FN2  TWELVE OTHER STATES HAVE OUTLAWED THE BUSINESS OF DEBT
ADJUSTING.  FLA. STAT. ANN.  (1962) SECS. 559.10-559.13; GA. CODE ANN.
(SUPP. 1961) SECS. 84-3601 TO 84-3603; ME. REV.  STAT. ANN. (SUPP.
1961) C. 137, SECS. 51-53; MASS. GEN. LAWS ANN. (1958) C. 221, SEC.
46C; N.J. STAT. ANN. (SUPP. 1962) 2A:99A-1 TO 2A:99A-4; N.Y. PENAL LAW
(SUPP. 1962) SECS.  410-412; OHIO REV. CODE ANN. (1962 SUPP.) SECS.
4710.01-4710.99; OKLA. STAT. ANN. (SUPP.  1962) TIT. 24, SECS. 15-18;
PA. STAT. ANN. (SUPP. 1961) TIT. 18, SEC. 4899; VA. CODE ANN. (1958)
SEC. 54-44.1; W.VA. CODE ANN. (1961) SEC. 6112(4); WYO. STAT. ANN.
(1957) SECS. 33-190 TO 33-192.  SEVEN OTHER STATES REGULATE DEBT
ADJUSTING.   CAL.  FIN.  CODE ANN. (1955 AND SUPP. 1962) SECS. 12200
12331; ILL. STAT. ANN. (SUPP. 1962) C. 16 1/2, SECS. 251-272; MICH.
STAT. ANN. (SUPP. 1961) SECS. 23.630(1)-23.630(18); MINN. STAT.  ANN.
(1947 AND 1962 SUPP.)  SECS. 332.04-332.11; ORE.  REV.  STAT. (1961)
SECS. 697.610-697.992; R.I. GEN. LAWS (SUPP. 1962) SECS. 5-42-1 TO 5-42
9; WIS. STAT. ANN. (1957) SEC. 218.02.  THE COURTS OF NEW JERSEY HAVE
UPHELD A NEW JERSEY STATUTE LIKE THE KANSAS STATUTE HERE IN QUESTION. 
AMERICAN BUDGET CORP. V. FURMAN, 67 N.J. SUPER.  134, 170 A.2D 63,
AFF'D PER CURIAM 36 N.J. 129, 175 A.2D 622 (1961). 

FN3  SKRUPA V. SANBORN, 210 F. SUPP. 200 (D.C.D. KAN. 1961). 

FN4  TYSON & BROTHER V. BANTON, 273 U.S. 418, 445, 446
(1927)(DISSENTING OPINION).  MR. JUSTICE BRANDEIS JOINED IN THIS
DISSENT, AND MR. JUSTICE STONE DISSENTED IN AN OPINION JOINED BY MR.
JUSTICE HOLMES AND MR. JUSTICE BRANDEIS.  MR. JUSTICE SANFORD DISSENTED
SEPARATELY. 

FN5  ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525, 567, 570
(1923)(DISSENTING OPINION).  CHIEF JUSTICE TAFT, JOINED BY MR. JUSTICE
SANFORD, ALSO DISSENTED.  MR. JUSTICE BRANDEIS TOOK NO PART. 

FN6  OLSEN V. NEBRASKA EX REL. WESTERN REFERENCE & BOND ASSN., 313
U.S. 236, 246 (1941)(UPHOLDING A NEBRASKA STATUTE LIMITING THE AMOUNT
OF THE FEE WHICH COULD BE CHARGED BY PRIVATE EMPLOYMENT AGENCIES). 

FN7  SPROLES V. BINFORD, 286 U.S. 374, 388 (1932).  AND CHIEF JUSTICE
HUGHES, FOR A UNANIMOUS COURT, ADDED, "WHEN THE SUBJECT LIES WITHIN THE
POLICE POWER OF THE STATE, DEBATABLE QUESTIONS AS TO REASONABLENESS ARE
NOT FOR THE COURTS BUT FOR THE LEGISLATURE, WHICH IS ENTITLED TO FORM
ITS OWN JUDGMENT, AND ITS ACTION WITHIN ITS RANGE OF DISCRETION CANNOT
BE SET ASIDE BECAUSE COMPLIANCE IS BURDENSOME."  ID., AT 388-389. 

FN8  LINCOLN FEDERAL LABOR UNION V. NORTHWESTERN IRON & METAL CO.,
335 U.S. 525, 536 (1949). 

MR. JUSTICE HOLMES EVEN WENT SO FAR AS TO SAY THAT "SUBJECT TO
COMPENSATION WHEN COMPENSATION IS DUE, THE LEGISLATURE MAY FORBID OR
RESTRICT ANY BUSINESS WHEN IT HAS A SUFFICIENT FORCE OF PUBLIC OPINION
BEHIND IT."  TYSON & BROTHER V. BANTON, 273 U.S. 418, 445, 446
(1927)(DISSENTING OPINION). 

FN9  SEE ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525, 567, 568
(1923)(HOLMES, J., DISSENTING). 

FN10  LINCOLN FEDERAL LABOR UNION V. NORTHWESTERN IRON & METAL CO.,
335 U.S. 525, 535 (1949), REFERRING TO OLSEN V. NEBRASKA EX REL.
WESTERN REFERENCE & BOND ASSN., 313 U.S. 236 (1941).  TEN YEARS LATER,
IN BREARD V. ALEXANDRIA, 341 U.S. 622, 631-632 (1951), THIS COURT AGAIN
COMMENTED ON THE INFIRMITY OF ADAMS. 

FN11  DAY-BRITE LIGHTING, INC., V. MISSOURI, 342 U.S. 421, 423
(1952). 

FN12  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 488 (1955). 

FN13  "THE FOURTEENTH AMENDMENT DOES NOT ENACT MR. HERBERT SPENCER'S
SOCIAL STATICS."  LOCKNER V. NEW YORK, 198 U.S. 45, 74, 75
(1905)(HOLMES, J., DISSENTING). 

FN14  SEE DANIEL V. FAMILY SECURITY LIFE INS. CO., 336 U.S. 220, 224
(1949); SECRETARY OF AGRICULTURE V. CENTRAL ROIG REF. CO., 338 U.S.
604, 618 (1950). 

FN15  SEE WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 488-489
(1955); LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-79
(1911).    FN16  MASSACHUSETTS AND VIRGINIA PROHIBIT DEBT POOLING BY
LAYMEN BY DECLARING IT TO CONSTITUTE THE PRACTICE OF LAW.  MASS. GEN.
LAWS ANN. (1958) C. 221, SEC. 46C; VA.  CODE ANN. (1958) SEC. 54-44.1. 
THE MASSACHUSETTS STATUTE WAS UPHELD IN HOME BUDGET SERVICE, INC., V.
BOSTON BAR ASSN., 335 MASS. 228, 139 N.E.2D 387 (1957). 

MR. JUSTICE HARLAN CONCURS IN THE JUDGMENT ON THE GROUND THAT THIS
STATE MEASURE BEARS A RATIONAL RELATION TO A CONSTITUTIONALLY
PERMISSIBLE OBJECTIVE.  SEE WILLIAMSON V. LEE OPTICAL CO., 348 U.S.
483, 491. 
..END :














DOWNUM V. UNITED STATES 372 U.S. 734 


NO. 489.  ARGUED MARCH 20, 1963.  - DECIDED APRIL 22, 1963.  - 300 F.2D
137, REVERSED. 


IN A FEDERAL DISTRICT COURT, PETITIONER WAS INDICTED ON SIX COUNTS FOR
FEDERAL OFFENSES.  WHEN HIS CASE WAS CALLED FOR TRIAL, BOTH SIDES
ANNOUNCED READY.  A JURY WAS SELECTED AND SWORN AND INSTRUCTED TO
RETURN AT 2 P.M.  WHEN IT DID SO, THE PROSECUTION ASKED THAT THE JURY
BE DISCHARGED BECAUSE A KEY WITNESS ON TWO COUNTS WAS NOT PRESENT. 
PETITIONER MOVED THAT THOSE TWO COUNTS BE DISMISSED FOR WANT OF
PROSECUTION AND THAT THE TRIAL CONTINUE ON THE REMAINING COUNTS.  THAT
MOTION WAS DENIED, AND THE JUDGE DISCHARGED THE JURY OVER PETITIONER'S
OBJECTION.  TWO DAYS LATER, THE CASE WAS CALLED AGAIN; A SECOND JURY
WAS IMPANELED; AND PETITIONER PLEADED FORMER JEOPARDY.  HELD:  IN THE
CIRCUMSTANCES OF THIS CASE, THAT PLEA SHOULD HAVE BEEN SUSTAINED.  PP.
734-738. 

DOWNUM V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, INVOLVING A FEDERAL PROSECUTION FOR STEALING FROM THE MAIL
AND FORGING AND UTTERING CHECKS SO STOLEN, PRESENTS A QUESTION UNDER
THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT - " ...  NOR SHALL
ANY PERSON BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY
OF LIFE OR LIMB  ...  ."  PETITIONER AND THREE OTHERS WERE CHARGED IN
AN INDICTMENT CONTAINING EIGHT COUNTS.  THE CODEFENDANTS PLEADED
GUILTY, PETITIONER BEING TRIED ALONE BEFORE A JURY AND CONVICTED ON ALL
BUT COUNTS 1 AND 2, WHICH DID NOT APPLY TO HIM.  THE CLAIM OF DOUBLE
JEOPARDY AROSE AS FOLLOWS: 

ON THE MORNING OF APRIL 25, 1961, THE CASE WAS CALLED FOR TRIAL AND
BOTH SIDES ANNOUNCED READY.  A JURY WAS SELECTED AND SWORN AND
INSTRUCTED TO RETURN AT 2 P.M.  WHEN IT RETURNED, THE PROSEUCTION ASKED
THAT THE JURY BE DISCHARGED BECAUSE ITS KEY WITNESS ON COUNTS 6 AND 7
WAS NOT PRESENT - ONE RUTLEDGE, WHO WAS THE PAYEE ON THE CHECKS
INVOLVED IN THOSE COUNTS.  PETITIONER MOVED THAT COUNTS 6 AND 7 BE
DISMISSED FOR WANT OF PROSECUTION AND ASKED THAT THE TRIAL CONTINUE ON
THE REST OF THE COUNTS.  THIS MOTION WAS DENIED AND THE JUDGE
DISCHARGED THE JURY OVER PETITIONER'S OBJECTION.  TWO DAYS LATER WHEN
THE CASE WAS CALLED AGAIN AND A SECOND JURY IMPANELED, PETITIONER
PLEADED FORMER JEOPARDY.  HIS PLEA WAS OVERRULED, A TRIAL WAS HAD, AND
HE WAS FOUND GUILTY.  THE COURT OF APPEALS AFFIRMED, 300 F.2D 137; AND
WE GRANTED THE PETITION FOR CERTIORARI BECAUSE OF THE SEEMING CONFLICT
BETWEEN THIS DECISION AND CORNERO V. UNITED STATES, 48 F.2D 69, FROM
THE NINTH CIRCUIT.  371 U.S. 811. 

THE PRESENT CASE WAS ONE OF A DOZEN SET FOR CALL DURING THE PREVIOUS
WEEK, AND THOSE CASES INVOLVED APPROXIMATELY 100 WITNESSES.  SUBPOENAS
FOR ALL OF THEM, INCLUDING RUTLEDGE, HAD BEEN DELIVERED TO THE MARSHAL
FOR SERVICE.  THE DAY BEFORE THE CASE WAS FIRST CALLED, THE
PROSECUTOR'S ASSISTANT CHECKED WITH THE MARSHAL AND LEARNED THAT
RUTLEDGE'S WIFE WAS GOING TO LET HIM KNOW WHERE HER HUSBAND WAS, IF SHE
COULD FIND OUT.  NO WORD WAS RECEIVED FROM HER AND NO FOLLOW-UP WAS
MADE.  THE PROSECUTION ALLOWED THE JURY TO BE SELECTED AND SWORN EVEN
THOUGH ONE OF ITS KEY WITNESSES WAS ABSENT AND HAD NOT BEEN FOUND. 

FROM UNITED STATES V. PEREZ, 9 WHEAT.  579, DECIDED IN 1824, TO GORI
V. UNITED STATES, 367 U.S. 364, DECIDED IN 1961, IT HAS BEEN AGREED
THAT THERE ARE OCCASIONS WHEN A SECOND TRIAL MAY BE HAD ALTHOUGH THE
JURY IMPANELED FOR THE FIRST TRIAL WAS DISCHARGED WITHOUT REACHING A
VERDICT AND WITHOUT THE DEFENDANT'S CONSENT.  THE CLASSIC EXAMPLE IS A
MISTRIAL BECAUSE THE JURY IS UNABLE TO AGREE.  UNITED STATES V. PEREZ,
SUPRA; LOGAN V. UNITED STATES, 144 U.S. 263, 298; DREYER V. ILLINOIS,
187 U.S. 71, 85-86; KEERL V. MONTANA, 213 U.S. 135.  IN WADE V. HUNTER,
336 U.S. 684, THE TACTICAL PROBLEMS OF AN ARMY IN THE FIELD WERE HELD
TO JUSTIFY THE WITHDRAWAL OF A COURT-MARTIAL PROCEEDING AND THE
COMMENCEMENT OF ANOTHER ONE ON A LATER DAY.  DISCOVERY BY THE JUDGE
DURING A TRIAL THAT A MEMBER OR MEMBERS OF THE JURY WERE BIASED PRO OR
CON ONE SIDE HAS BEEN HELD TO WARRANT DISCHARGE OF THE JURY AND
DIRECTION OF A NEW TRIAL.  WADE V. HUNTER, SUPRA, 689; SIMMONS V.
UNITED STATES, 142 U.S. 148; THOMPSON V. UNITED STATES, 155 U.S. 271. 
AT TIMES THE VALUED RIGHT OF A DEFENDANT TO HAVE HIS TRIAL COMPLETED BY
THE PARTICULAR TRIBUNAL SUMMONED TO SIT IN JUDGMENT ON HIM MAY BE
SUBORDINATED TO THE PUBLIC INTEREST - WHEN THERE IS AN IMPERIOUS
NECESSITY TO DO SO.  WADE V. HUNTER, SUPRA, 690.  DIFFERENCES HAVE
ARISEN AS TO THE APPLICATION OF THE PRINCIPLE.  SEE BROCK V. NORTH
CAROLINA, 344 U.S. 424; GREEN V. UNITED STATES, 355 U.S. 184, 188. 
HARASSMENT OF AN ACCUSED BY SUCCESSIVE PROSECUTIONS OR DECLARATION OF A
MISTRIAL SO AS TO AFFORD THE PROSECUTION A MORE FAVORABLE OPPORTUNITY
TO CONVICT ARE EXAMPLES WHEN JEOPARDY ATTACHES.  GORI V. UNITED STATES,
SUPRA, 369.  BUT THOSE EXTREME CASES DO NOT MARK THE LIMITS OF THE
GUARANTEE.  THE DISCRETION TO DISCHARGE THE JURY BEFORE IT HAS REACHED
A VERDICT IS TO BE EXERCISED "ONLY IN VERY EXTRAORDINARY AND STRIKING
CIRCUMSTANCES," TO USE THE WORDS OF MR. JUSTICE STORY IN UNITED STATES
V. COOLIDGE, 25 FED. CAS. 622, 623.  FOR THE PROHIBITION OF THE DOUBLE
JEOPARDY CLAUSE IS "NOT AGAINST BEING TWICE PUNISHED, BUT AGAINST BEING
TWICE PUT IN JEOPARDY."  UNITED STATES V. BALL, 163 U.S. 622, 669. 

THE JURY FIRST SELECTED TO TRY PETITIONER AND SWORN WAS DISCHARGED
BECAUSE A PROSECUTION WITNESS HAD NOT BEEN SERVED WITH A SUMMONS AND
BECAUSE NO OTHER ARRANGEMENTS HAD BEEN MADE TO ASSURE HIS PRESENCE. 
THAT WITNESS WAS ESSENTIAL ONLY FOR TWO OF THE SIX COUNTS CONCERNING
PETITIONER.  YET THE PROSECUTION OPPOSED PETITIONER'S MOTION TO DISMISS
THOSE TWO COUNTS AND TO PROCEED WITH A TRIAL ON THE OTHER FOUR COUNTS -
A MOTION THE COURT DENIED.  HERE, AS IN WADE V. HUNTER, SUPRA, AT 691,
WE REFUSE TO SAY THAT THE ABSENCE OF WITNESSES "CAN NEVER JUSTIFY
DISCONTINUANCE OF A TRIAL."  EACH CASE MUST TURN ON ITS FACTS.  ON THIS
RECORD, HOWEVER, WE THINK WHAT WAS SAID IN CORNERO V. UNITED STATES,
SUPRA, STATES THE GOVERNING PRINCIPLE.  THERE A TRIAL WAS FIRST
CONTINUED BECAUSE PROSECUTION WITNESSES WERE NOT PRESENT, AND WHEN THEY
HAD NOT BEEN FOUND AT THE TIME THE CASE WAS AGAIN CALLED, THE JURY WAS
DISCHARGED.  A PLEA OF DOUBLE JEOPARDY WAS SUSTAINED WHEN A SECOND JURY
WAS SELECTED, THE COURT SAYING: 

"THE FACT IS THAT, WHEN THE DISTRICT ATTORNEY IMPANELED THE JURY
WITHOUT FIRST ASCERTAINING WHETHER OR NOT HIS WITNESSES WERE PRESENT,
HE TOOK A CHANCE.  WHILE THEIR ABSENCE MIGHT HAVE JUSTIFIED A
CONTINUANCE OF THE CASE IN VIEW OF THE FACT THAT THEY WERE UNDER BOND
TO APPEAR AT THAT TIME AND PLACE, THE QUESTION PRESENTED HERE IS
ENTIRELY DIFFERENT FROM THAT INVOLVED IN THE EXERCISE OF THE SOUND
DISCRETION OF THE TRIAL COURT IN GRANTING A CONTINUANCE IN FURTHERANCE
OF JUSTICE.  THE SITUATION PRESENTED IS SIMPLY ONE WHERE THE DISTRICT
ATTORNEY ENTERED UPON THE TRIAL OF THE CASE WITHOUT SUFFICIENT EVIDENCE
TO CONVICT.  THIS DOES NOT TAKE THE CASE OUT OF THE RULE WITH REFERENCE
TO FORMER JEOPARDY.  THERE IS NO DIFFERENCE IN PRINCIPLE BETWEEN A
DISCOVERY BY THE DISTRICT ATTORNEY IMMEDIATELY AFTER THE JURY WAS
IMPANELED THAT HIS EVIDENCE WAS INSUFFICIENT AND A DISCOVERY AFTER HE
HAD CALLED SOME OR ALL OF HIS WITNESSES."  48 F.2D, AT 71. 

THAT VIEW, WHICH HAS SOME SUPPORT IN THE AUTHORITIES, (FN1) IS IN OUR
VIEW THE CORRECT ONE.  WE RESOLVE ANY DOUBT "IN FAVOR OF THE LIBERTY OF
THE CITIZEN, RATHER THAN EXERCISE WHAT WOULD BE AN UNLIMITED,
UNCERTAIN, AND ARBITRARY JUDICIAL DISCRETION."  (FN2)  THIS MEANS THAT
THE JUDGMENT BELOW MUST BE AND IS REVERSED. 

FN1  IN UNITED STATES V. WATSON, 28 FED. CAS. 499, 500-501, THE COURT
RULED AS FOLLOWS: 

"THE ILLNESS OF THE DISTRICT ATTORNEY, IT NOT APPEARING BY THE
MINUTES THAT SUCH ILLNESS OCCURRED AFTER THE JURY WAS SWORN, OR THAT IT
WAS IMPOSSIBLE FOR THE ASSISTANT DISTRICT ATTORNEY TO CONDUCT THE
TRIAL, AND THE MOTION TO PUT OFF THE CASE FOR THE TERM BEING MADE BY
SUCH ASSISTANT, CANNOT BE REGARDED AS CREATING A MANIFEST NECESSITY FOR
WITHDRAWING A JUROR.  SO, TOO, AS TO THE ABSENCE OF WITNESSES FOR THE
PROSECUTION, IT DOES NOT APPEAR BY THE MINUTES THAT SUCH ABSENCE WAS
FIRST MADE KNOWN TO THE LAW OFFICERS OF THE GOVERNMENT AFTER THE JURY
WAS SWORN, OR THAT IT OCCURRED UNDER SUCH CIRCUMSTANCES AS TO CREATE A
PLAIN AND MANIFEST NECESSITY JUSTIFYING THE WITHDRAWING OF A JUROR. 
THE MERE ILLNESS OF THE DISTRICT ATTORNEY, OR THE MERE ABSENCE OF
WITNESSES FOR THE PROSECUTION, UNDER THE CIRCUMSTANCES DISCLOSED BY THE
RECORD IN THIS CASE, IS NO GROUND UPON WHICH, IN THE EXERCISE OF A
SOUND DISCRETION, A COURT CAN, ON THE TRIAL OF AN INDICTMENT, PROPERLY
DISCHARGE A JURY, WITHOUT THE CONSENT OF THE DEFENDANT, AFTER THE JURY
HAS BEEN SWORN AND THE TRIAL HAS THUS COMMENCED.  TO ADMIT THE
PROPRIETY OF THE EXERCISE OF THE DISCRETION ON SUCH GROUNDS WOULD BE TO
THROW OPEN THE DOOR FOR THE INDULGENCE OF CAPRICE AND PARTIALITY BY THE
COURT, TO THE POSSIBLE AND PROBABLE PREJUDICE OF THE DEFENDANTS.  WHEN
THE TRIAL OF AN INDICTMENT HAS BEEN COMMENCED BY THE SWEARING OF THE
JURY, THE DEFENDANT IS IN THEIR CHARGE, AND IS ENTITLED TO A VERDICT OF
ACQUITTAL IF THE CASE ON THE PART OF THE PROSECUTION IS, FOR ANY
REASON, NOT MADE OUT AGAINST HIM, UNLESS HE CONSENTS TO THE DISCHARGING
OF THE JURY WITHOUT GIVING A VERDICT, OR UNLESS THERE IS SUCH A LEGAL
NECESSITY FOR DISCHARGING THEM AS WOULD, IF SPREAD ON THE RECORD,
ENABLE A COURT OF ERROR TO SAY THAT THE DISCHARGE WAS PROPER."  AND SEE
UNITED STATES V. SHOEMAKER, 27 FED. CAS. 1067. 

FN2  UNITED STATES V. WATSON, SUPRA, NOTE 1, P. 501. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE STEWART
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THE COURT IN APPLYING THE RULE OF CORNERO V. UNITED STATES, 48 F.2D
69 (C.A. 9TH CIR. 1931), SAYS THAT "THE VALUED RIGHT OF A DEFENDANT TO
HAVE HIS TRIAL COMPLETED BY THE PARTICULAR TRIBUNAL SUMMONED TO SIT IN
JUDGMENT ON HIM MAY BE SUBORDINATED TO THE PUBLIC INTEREST - WHEN THERE
IS AN IMPERIOUS NECESSITY TO DO SO."  THE COURT OF APPEALS WAS URGED TO
ADOPT THE CORNERO RULE, BUT IT REFUSED.  APPLYING THAT RULE HERE, THE
COURT ORDERS THE CONVICTION REVERSED AND PETITIONER SET FREE.* 

*BOTH CORNERO AND UNITED STATES V. WATSON, 28 FED. CAS. 499
(D.C.S.D.N.Y. 1868), WHICH THE COURT SAYS SUPPORTS CORNERO, ARE
ENTIRELY DISTINGUISHABLE ON THEIR FACTS.  IN CORNERO THE GOVERNMENT
SOUGHT A FIVE-DAY CONTINUANCE BECAUSE ITS WITNESSES COULD NOT BE
FOUND.  THIS WAS FOLLOWED BY A MISTRIAL AND THEN TWO YEARS LATER A
SECOND TRIAL, AS CONTRASTED WITH A MERE TWO-DAY DELAY IN THE INSTANT
CASE BEFORE A SECOND JURY WAS IMPANELED AND THE TRIAL BEGUN.  IT COULD
THEREFORE BE SAID REALISTICALLY THAT THE GOVERNMENT PROCEEDED AT THE
FIRST TRIAL IN CORNERO WITHOUT ITS EVIDENCE AND THAT THE RETRIAL AFTER
TWO YEARS WAS AN HARASSMENT.  MOREOVER, SUBPOENAS IN CORNERO HAD
NEITHER BEEN ISSUED NOR SERVED, WHILE HERE THE SUBPOENA HAD BEEN ISSUED
BUT, FOR REASONS WHICH THE TRIAL COURT THOUGHT JUSITIFIABLE, IT HAD NOT
BEEN SERVED.  IN WATSON THE COURT GRANTED AN EIGHT-DAY CONTINUANCE
AFTER THE JURY WAS SWORN, ON THE GROUND THAT THE DISTRICT ATTORNEY WAS
ILL AND GOVERNMENT WITNESSES WERE ABSENT.  UPON RESUMPTION OF THE TRIAL
THE PROSECUTOR ASKED THAT THE CASE GO OFF FOR THE TERM BECAUSE OF THE
CONTINUED ILLNESS OF THE DISTRICT ATTORNEY.  IN HOLDING THAT THESE
CIRCUMSTANCES DID NOT WARRANT THE DISCHARGE OF THE JURY THE COURT
OBSERVED THAT THE ILLNESS OF THE DISTRICT ATTORNEY DID NOT APPEAR TO
HAVE OCCURRED AFTER THE JURY WAS SWORN, THAT APPARENTLY THE GOVERNMENT
OFFICERS HAD NOT FIRST LEARNED OF THE ABSENCE OF WITNESSES AFTER THE
JURY HAD BEEN SWORN, AND THAT IT WAS NOT SHOWN THAT IT WAS IMPOSSIBLE
FOR THE ASSISTANT DISTRICT ATTORNEY TO CONDUCT THE TRIAL.  NOR WAS
THERE ANY INDICATION IN WATSON THAT SUBPOENAS HAD BEEN ISSUED. 

IN WADE V. HUNTER, 336 U.S. 684 (1949), THIS COURT REFUSED TO FOLLOW
THE CORNERO RULE, WHICH WAS CHARACTERIZED AS HOLDING THAT THE ABSENCE
OF WITNESSES WAS NOT SUCH AN "IMPERIOUS" OR "URGENT NECESSITY" AS TO
COME WITHIN THE RECOGNIZED EXCEPTION TO THE DOUBLE JEOPARDY PROVISION. 
ID., AT 691.  THE COURT SAID: 

"WE ARE ASKED TO ADOPT THE CORNERO RULE UNDER WHICH PETITIONER
CONTENDS THE ABSENCE OF WITNESSES CAN NEVER JUSTIFY DISCONTINUANCE OF A
TRIAL.  SUCH A RIGID FORMULA IS INCONSISTENT WITH THE GUIDING
PRINCIPLES OF THE PEREZ DECISION (UNITED STATES V. PEREZ, 9 WHEAT.  579
(1824)) TO WHICH WE ADHERE.  THOSE PRINCIPLES COMMAND COURTS IN
CONSIDERING WHETHER A TRIAL SHOULD BE TERMINATED WITHOUT JUDGMENT TO
TAKE 'ALL CIRCUMSTANCES INTO ACCOUNT' AND THEREBY FORBID THE MECHANICAL
APPLICATION OF AN ABSTRACT FORMULA.  THE VALUE OF THE PEREZ PRINCIPLES
THUS LIES IN THEIR CAPACITY FOR INFORMED APPLICATION UNDER WIDELY
DIFFERENT CIRCUMSTANCES WITHOUT INJURY TO THE DEFENDANTS OR TO THE
PUBLIC INTEREST."  IBID. 

I ADHERE TO WADE V. HUNTER, WHICH IN SHORT HOLDS THAT "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."  ID., AT 690. 

IN ORDER TO APPLY THE PRINCIPLES OF WADE V. HUNTER, IT IS NECESSARY
THAT THE FACTS BE RECALLED.  ON WEDNESDAY OR THURSDAY OF THE WEEK
PRECEDING TRIAL, SOME 12 CASES, INCLUDING PETITIONER'S, WERE SET BY THE
COURT FOR THE FOLLOWING MONDAY.  THIS WAS, IN THE WORDS OF THE TRIAL
JUDGE, "VERY SHORT NOTICE."  TRANSCRIPT OF RECORD, P. 18.  SUBPOENAS
WERE ISSUED BY THE DISTRICT ATTORNEY'S OFFICE FOR APPROXIMATELY 100
WITNESSES AND PLACED IN THE HANDS OF THE MARSHAL.  THE PETITIONER'S
CASE WAS NO. 10 ON THE LIST, AND THE PROSECUTOR STATED THAT HE DID NOT
FORESEE THAT IT WOULD BE REACHED ON TUESDAY, THE SECOND DAY OF THE
WEEK'S HEARINGS.  THE PROSECUTOR'S OFFICE WAS SHORTHANDED, ONE OF THE
ASSISTANTS BEING IN THE MILITARY SERVICE.  THE PROSECUTOR WHO HAD BEEN
ASSIGNED TO PETITIONER'S CASE HAD LEARNED FROM THE MARSHAL THE PREVIOUS
DAY THAT THE WIFE OF A MR. RUTLEDGE, WHO WAS THE KEY WITNESS IN
PETITIONER'S CASE, WOULD INFORM THEM OF HER HUSBAND'S WHEREABOUTS, IF
SHE SHOULD LEARN OF IT.  SINCE THE PROSECUTOR WAS TRYING ANOTHER CASE
ON THE TUESDAY MORNING THAT PETITIONER'S CASE WAS CALLED, HE WAS UNABLE
IMMEDIATELY TO CONTACT THE MARSHAL AND DETERMINE WHETHER MR. RUTLEDGE
WAS PRESENT, AND HE ANNOUNCED READY FOR TRIAL WITHOUT ASCERTAINING
THIS.  THE JURY FOR PETITIONER'S CASE WAS SELECTED AND THEN EXCUSED
UNTIL 2 P.M., AND THE PROSECUTOR PROCEEDED TO COMPLETE THE HEARING OF
HIS OTHER CASE BEFORE NOON.  THEN, UPON CHECKING WITH THE MARSHAL'S
OFFICE DURING THE NOON RECESS, THE PROSECUTOR DISCOVERED THAT RUTLEDGE
WAS NOT PRESENT.  HE IMMEDIATELY INFORMED THE JUDGE IN HIS CHAMBERS,
AND UPON THE OPENING OF THE AFTERNOON SESSION DEFENSE COUNSEL WAS
ADVISED IN OPEN COURT THAT THE KEY WITNESS OF THE GOVERNMENT WAS NOT
AVAILABLE AND THE CASE WOULD HAVE TO GO OVER A COUPLE OF DAYS.  A
DEFENSE MOTION TO DISMISS TWO OF THE SIX COUNTS IN THE INDICTMENT -
THOSE ON WHICH RUTLEDGE WAS THE KEY WITNESS - ON THE GROUND OF LACK OF
PROSECUTION AND PROCEED TO TRIAL ON THE REMAINING COUNTS WAS DENIED BY
THE COURT, AND THE JURY WAS DISCHARGED - ALL OVER OBJECTIONS FROM THE
DEFENSE.  TWO DAYS LATER THE CASE WAS CALLED AND THE PETITIONER
INTERPOSED HIS PLEA OF DOUBLE JEOPARDY.  THEREAFTER, A SECOND JURY WAS
IMPANELED, AND PETITIONER WAS TRIED AND FOUND GUILTY ON ALL COUNTS. 

THE FIRST JURY HAD NEVER BEGUN TO ACT IN THIS CASE.  PETITIONER WAS
NEVER FORMALLY ARRAIGNED IN THE PRESENCE OF THE FIRST JURY, NOR WAS ANY
EVIDENCE PRESENTED OR HEARD FOR OR AGAINST HIM AT THAT TIME, NOR WAS HE
REQUIRED TO PUT ON ANY DEFENSE.  IN ADDITION, THE SECOND JURY HAVING
BEEN IMPANELED TWO DAYS LATER, THERE WAS NO CONTINUED OR PROLONGED
ANXIETY, NOR WAS THE PETITIONER CAUSED ANY ADDITIONAL EXPENSE OR
EMBARRASSMENT, DEPRIVED OF ANY RIGHT OR PREJUDICED IN ANY WAY.  NEITHER
HAS PETITIONER CONTENDED THAT ONE JURY WAS MORE OR LESS FAVORABLE THAN
THE OTHER. 

THE CONCLUSIONS OF THE TRIAL COURT AND THE COURT OF APPEALS INDICATE
THAT THEY VIEWED THE CIRCUMSTANCES IN WHICH THE PROSECUTOR FOUND
HIMSELF AS HAVING RESULTED FROM EXCUSABLE OVERSIGHT.  THERE IS NO
INDICATION THAT THE PROSECUTOR'S EXPLANATION WAS A MERE COVER FOR
NEGLIGENT PREPARATION OR THAT HIS ACTION WAS IN ANY WAY DELIBERATE. 
THERE IS NOTHING IN THE RECORD THAT EVEN SUGGESTS THAT THE
CIRCUMSTANCES WERE USED BY THE PROSECUTOR FOR THE PURPOSE OF SECURING A
MORE FAVORABLE JURY OR IN ANY WAY TO TAKE ADVANTAGE OF OR TO HARASS THE
PETITIONER.  INDEED, IT APPEARS TO BE JUST ONE OF THOSE CIRCUMSTANCES
WHICH OFTEN CREEP INTO A PROSECUTOR'S LIFE AS A RESULT OF INADVERTENCE
WHEN MANY CASES MUST BE HANDLED DURING A SHORT TRIAL PERIOD. 

WE CAN OF COURSE VISUALIZE OTHER WAYS OF HANDLING THE SITUATION.  THE
JUDGE MIGHT HAVE HELD THE FIRST JURY TOGETHER, RATHER THAN DISCHARGING
THEM, UNTIL MR. RUTLEDGE'S ATTENDANCE COULD HAVE BEEN OBTAINED.  BUT
THIS, VIEWED PROSPECTIVELY FROM THE MOMENT THE COURT ACTED, WOULD HAVE
TIED UP 12 MEN ON THE PANEL FOR AN INDEFINITE PERIOD AND DISRUPTED THE
CALENDAR FOR THE ENTIRE WEEK, IF NOT LONGER.   IT IS ENTIRELY
UNDERSTANDABLE THAT THE TRIAL JUDGE WAS CONCERNED WITH HIS CALENDAR. 
MOREOVER, EVEN IF A TWO-DAY CONTINUANCE IN THE ABOVE MANNER - HOLDING
THE FIRST JURY - WERE LATER HELD IMPROPER ON APPEAL FROM THE TRIAL
COURT'S JUDGMENT, THE PETITIONER COULD THEN BE RETRIED AFTER SUFFERING
NOT ONLY THE TIME AND EXPENSE OF ONE FULL TRIAL BUT ALSO THE DISCLOSURE
OF HIS DEFENSE.  NOR IS THE CLAIM OF PETITIONER THAT THE GOVERNMENT
SHOULD HAVE PROCEEDED ON THE OTHER COUNTS OF THE INDICTMENT, WHICH HE
CLAIMS DID NOT REQUIRE THE TESTIMONY OF RUTLEDGE, ANY MORE TENABLE. 
THIS NOT ONLY WOULD HAVE REQUIRED TWO TRIALS BUT ALSO MIGHT RAISE THE
LEGAL PROPOSITION THAT THE PROSECUTION ON THE REMAINING TWO COUNTS WAS
BARRED.  WHILE ORDINARILY THE OTHER FOUR COUNTS MIGHT HAVE BEEN
SUFFICIENT TO SUPPORT A MAXIMUM SENTENCE, THE PROSECUTOR MIGHT WELL
HAVE HAD GOOD REASON, IN ADDITION TO THE OBVIOUS PREFERENCE FOR ONE
RATHER THAN TWO TRIALS, FOR WANTING ALL COUNTS CONSIDERED IN ONE
PROCEEDING.  THE INDICTMENT CHARGED THE PETITIONER WITH FORGING AND
PASSING GOVERNMENT CHECKS AND CONSPIRING WITH TWO CODEFENDANTS, WHO
PLEADED GUILTY, TO COMMIT THOSE ACTS.  RUTLEDGE WAS THE PAYEE OF SOME
OF THE CHECKS AND MIGHT WELL HAVE BEEN AN IMPORTANT, THOUGH NOT THE
KEY, WITNESS WITH REFERENCE TO THE CONSPIRACY.  IN FACT, THE PROSECUTOR
EXPRESSED TO THE TRIAL COURT HIS OPINION THAT, UNDER THE ENTIRE
INDICTMENT, HE COULD NOT SAFELY GO TO TRIAL WITHOUT THE ATTENDANCE OF
RUTLEDGE.  TRANSCRIPT OF RECORD, PP. 19-20. 

AS I SEE THE PROBLEM, THE ISSUE IS WHETHER THE ACTION OF THE
PROSECUTOR IN FAILING TO CHECK ON THE PRESENCE OF HIS WITNESS BEFORE
ALLOWING A JURY TO BE SWORN WAS OF SUCH MOMENT THAT IT CONSTITUTED A
DEPRIVAL OF THE PETITIONER'S RIGHTS AND ENTITLED HIM TO A VERDICT OF
ACQUITTAL WITHOUT ANY TRIAL ON THE MERITS.  OBVIOUSLY UNDER THE FACTS
HERE HE SUFFERED NO SUCH DEPRIVATION.  EVER SINCE PEREZ THIS COURT HAS
RECOGNIZED THAT THE "ENDS OF PUBLIC JUSTICE" MUST BE CONSIDERED IN
DETERMINING SUCH A QUESTION.  9 WHEAT., AT 580.  IN THIS LIGHT I CANNOT
SEE HOW THIS COURT FINDS THAT THE TRIAL JUDGE ABUSED HIS DISCRETION IN
AFFORDING THE GOVERNMENT A TWO-DAY PERIOD IN WHICH TO BRING FORWARD ITS
KEY WITNESS WHO, TO ITS SURPRISE, WAS FOUND TO BE TEMPORARILY ABSENT. 
I BELIEVE THAT THE "ENDS OF PUBLIC JUSTICE," TO WHICH MR. JUSTICE STORY
REFERRED IN PEREZ, REQUIRE THAT THE GOVERNMENT HAVE A FAIR OPPORTUNITY
TO PRESENT THE PEOPLE'S CASE AND OBTAIN ADJUDICATION ON THE MERITS,
RATHER THAN THAT THE CRIMINAL BE TURNED FREE BECAUSE OF THE HARMLESS
OVERSIGHT OF THE PROSECUTOR. 
..END :














INTERSTATE COMMERCE COMMISSION V. NEW YORK, NEW HAVEN & HARTFORD
RAILROAD CO. 372 U.S. 744 


NO. 108.  ARGUED FEBRUARY 28, 1963.  - DECIDED APRIL 22, 1963.* - 199 F.
SUPP. 635, JUDGMENT VACATED AND CAUSE REMANDED. 

*TOGETHER WITH NO. 109, SEA-LAND SERVICE, INC., V. NEW YORK, NEW
HAVEN & HARTFORD RAILROAD CO. ET AL; NO. 110, SEATRAIN LINES, INC., V.
NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. ET AL.; AND NO. 125, UNITED
STATES V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. ET AL.; ON
APPEALS FROM THE SAME COURT. 


APPELLEE RAILROADS PROPOSED REDUCED RATES FOR TRAILER-ON-FLATCAR
SERVICE BETWEEN CERTAIN POINTS ALSO SERVED BY COASTAL WATER CARRIERS. 
THE REDUCED RATES, WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE, EQUALED
OR EXCEEDED THE RAILROADS' OUT-OF-POCKET COSTS; IN MANY INSTANCES THEY
EQUALED OR EXCEEDED THE RAILROADS' FULLY DISTRIBUTED COSTS; THEY WERE
SUBSTANTIALLY ON A PARITY WITH THE WATER CARRIERS' RATES FOR THE SAME
TRAFFIC; BUT THEY WERE BELOW THE LEVEL MAINTAINED BY THE RAILROADS FOR
SIMILAR TRAFFIC BETWEEN POINTS NOT SERVED BY THE WATER CARRIERS.  THE
INTERSTATE COMMERCE COMMISSION CANCELLED THE REDUCTIONS ON THE GROUNDS
THAT THE WATER CARRIERS COULD NOT COMPETE WITH RAILROADS AT EQUAL
RATES; THAT THE REDUCTIONS WERE AN INITIAL STEP IN A GENERAL RATE
CUTTING PROGRAM WHICH THREATENED THE WATER CARRIERS' CONTINUED
EXISTENCE; AND THAT THE WATER CARRIERS WERE ESSENTIAL TO NATIONAL
DEFENSE AND AN INTEGRAL PART OF THE NATIONAL TRANSPORTATION SYSTEM. 
THE DISTRICT COURT REVERSED.  HELD:  THE JUDGMENT IS VACATED; THE ORDER
OF THE COMMISSION IS SET ASIDE TO THE EXTENT THAT IT DISALLOWED CERTAIN
RAILROAD TRAILER-ON-FLATCAR RATES, AND THE CAUSE IS REMANDED TO THE
COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  PP.
746-764. 

1. IN THE LIGHT OF THE LEGISLATIVE HISTORY OF SEC. 15A(3), ADDED TO
THE INTERSTATE COMMERCE ACT BY THE TRANSPORTATION ACT OF 1958, THERE
CAN BE NO DOUBT THAT ITS PURPOSE WAS TO PERMIT THE RAILROADS TO RESPOND
TO COMPETITION BY ASSERTING WHATEVER INHERENT ADVANTAGES OF COST AND
SERVICE THEY POSSESSED AND THAT CONGRESS DID NOT CONSCIOUSLY OR
INADVERTENTLY DEFEAT THIS PURPOSE WHEN IT INCLUDED IN SEC. 15A(3) A
REFERENCE TO THE NATIONAL TRANSPORTATION POLICY.  PP. 753-758. 

2.  ON THE PRESENT RECORD, THE DISALLOWANCE OF THE RATES IN QUESTION
WAS NOT ADEQUATELY SUPPORTED.   PP. 758-764. 

(A)  IN THE LIGHT OF THE LEGISLATIVE HISTORY OF SEC. 15A(3), IT IS
CLEAR THAT CONGRESS DID NOT REGARD THE SETTING OF A RATE AT A
PARTICULAR LEVEL AS CONSTITUTING AN UNFAIR OR DESTRUCTIVE COMPETITIVE
PRACTICE SIMPLY BECAUSE THAT RATE WOULD DIVERT SOME OR ALL OF THE
TRAFFIC FROM A COMPETING MODE.  PP. 759-761. 

(B)  THIS COURT DISAGREES WITH THE CONCLUSION OF THE DISTRICT COURT
THAT THE NEEDS OF THE NATIONAL DEFENSE ARE NOT AN OPERATIVE PART OF THE
NATIONAL TRANSPORTATION POLICY; BUT THIS COURT CONCLUDES THAT THE
COMMISSION'S RELIANCE ON THE FACTOR OF "NATIONAL DEFENSE," AND PERHAPS
OF "COMMERCE," IN DISALLOWING THE RATES IN QUESTION WAS NOT SUPPORTED
BY ADEQUATE FINDINGS OR SUBSTANTIAL EVIDENCE.  PP. 761-764. 

INTERSTATE COMMERCE COMMISSION V. NEW YORK, NEW HAVEN & HARTFORD
RAILROAD CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, INVOLVING FOUR CONSOLIDATED APPEALS FROM A THREE-JUDGE
DISTRICT COURT JUDGMENT SETTING ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION TO THE EXTENT THAT IT REJECTED CERTAIN PROPOSED
RAILROAD RATE DECREASES, BRINGS BEFORE US IMPORTANT QUESTIONS RELATING
TO THE ROLE OF THE COMMISSION IN ITS TASK OF OVERSEEING COMPETITION
AMONG DIFFERENT MODES OF TRANSPORTATION.  THE CASE IS THE FIRST IN
WHICH THIS COURT HAS CONSIDERED THE INTERPRETATION AND APPLICATION OF
SEC. 15A(3) OF THE INTERSTATE COMMERCE ACT, ADDED BY CONGRESS IN THE
TRANSPORTATION ACT OF 1958.  (FN1)

                                I. 

THE TWO CORPORATE APPELLANTS HERE, SEA-LAND SERVICE, INC. (FORMERLY
PAN-ATLANTIC STEAMSHIP CORPORATION), AND SEATRAIN LINES, INC., ARE
COMMON CARRIERS BY WATER ENGAGED IN THE ATLANTIC-GULF COASTWISE TRADE;
THEY ARE THE ONLY TWO COMPANIES NOW PERFORMING THIS SERVICE.  SEA-LAND,
WHICH HAD OPERATED AS A "BREAK-BULK" (FN2) CARRIER FOR MANY YEARS, IN
1957 SUSPENDED THAT SERVICE AND CONVERTED FOUR SHIPS INTO CRANE
EQUIPPED TRAILERSHIPS, EACH CAPABLE OF HOLDING 226 DEMOUNTABLE TRUCK
TRAILERS.  WITH THESE SHIPS, FREIGHT COULD BE MOVED BY HIGHWAY TRAILERS
TO THE PORT OF ORIGIN, THE TRAILERS LIFTED ONTO THE SHIPS, AND THE
PROCESS REVERSED AT THE PORT OF DESTINATION.  AS A RESULT, SEA-LAND WAS
ABLE TO PROVIDE A MOTOR-WATER-MOTOR SERVICE WHICH AFFORED DOOR-TO-DOOR
DELIVERY OF GOODS FROM AND TO ALL SHIPPERS AND CONSIGNEES, EVEN IF NOT
SITUATED ON A RAILROAD SIDING, IN CONTAINERS THAT WOULD NOT HAVE TO BE
OPENED IN TRANSIT.  TRADITIONALLY WATER RATES, INCLUDING WATER-RAIL AND
WATER-MOTOR RATES, HAVE BEEN LOWER THAN THE CORRESPONDING ALL-RAIL
RATES, AND WHEN SEA-LAND INAUGURATED ITS NEW TRAILERSHIP SERVICE IN
1957, IT PUBLISHED REDUCED RATES WHICH WERE GENERALLY 5% TO 7 1/2%
LOWER THAN THE CORRESPONDING ALL-RAIL BOXCAR RATES.  SOME 700 OF THESE
REDUCED RATES WERE PLACED UNDER INVESTIGATION BY THE COMMISSION. 

IN SEATRAIN'S SERVICE, FREIGHT IS TRANSPORTED TO THE COMPANY'S DOCK
IN RAILROAD CARS, THE CARS AND THEIR CONTENTS ARE THEN LIFTED ONTO
SEATRAIN'S VESSELS, AND AT DESTINATION THE CARS ARE UNLOADED AND
DELIVERED BY RAIL TO THE CONSIGNEE.  THIS RAIL-WATER-RAIL SERVICE IS
SIMILAR TO RAILROAD BOXCAR SERVICE, IN THAT IT PERMITS CARRIAGE FROM
SHIPPER TO CONSIGNEE WITHOUT BREAKING BULK WHEN BOTH SHIPPER AND
CONSIGNEE ARE LOCATED ON RAILROAD SIDINGS. 

RAILROAD "PIGGY-BACK," OR TRAILER-ON-FLATCAR (TOFC), SERVICE IS LIKE
THAT PROVIDED BY SEA-LAND.  A MOTOR CARRIER TRAILER IS HAULED BY ROAD
TO A RAILHEAD, LOADED ONTO A FLATCAR, AND DEMOUNTED AT DESTINATION FOR
DELIVERY BY MOTOR CARRIER TO THE CONSIGNEE. 

BEFORE 1957, RAILROAD TOFC RATES WERE GENERALLY HIGHER THAN ALL-RAIL
BOXCAR, WATER, AND LAND-WATER RATES.  BUT IN 1957, PRIMARILY IN ANSWER
TO THE NEW IMPROVED SERVICE AND LOWER RATES OFFERED BY SEA-LAND, THE
APPELLEE RAILROADS PROPOSED TO ESTABLISH, ON AN EXPERIMENTAL BASIS,
REDUCED RATES ON 66 COMMODITY MOVEMENTS BETWEEN CERTAIN EASTERN POINTS
ON THE ONE HAND AND FORT WORTH AND DALLAS, TEXAS, ON THE OTHER.  (FN3)
THESE RATES, WHICH WERE SUBSTANTIALLY ON A PARITY WITH SEA-LAND AND
SEATRAIN RATES ON THE SAME TRAFFIC, WERE SUSPENDED AND PLACED UNDER
INVESTIGATION BY THE COMMISSION.   IN DECEMBER 1960 THE COMMISSION
DISPOSED OF 43 DOCKET PROCEEDINGS BY ISSUING A CONSOLIDATED REPORT
EMBRACING THE RAILROAD TOFC RATES INVOLVED HERE AS WELL AS A NUMBER OF
SEA-LAND AND SEATRAIN RATES NOT NOW BEFORE US.  313 I.C.C. 23. 

THE COMMISSION FOUND THAT THE PROPOSED TOFC RATES WERE COMPENSATORY,
THAT IS, THEY EQUALED OR EXCEEDED OUT-OF-POCKET COSTS, FOR ALL OF THE
LISTED MOVEMENTS BY RAILROAD-LEASED FLATCARS CAPABLE OF CARRYING TWO
TRAILERS (TTX CARS), AND FOR ALL BUT SIX OF THE LISTED MOVEMENTS BY
RAILROAD-OWNED SINGLE TRAILER CARS.  (FN4)  THE COMMISSION FURTHER
FOUND THAT THE PROPOSED RATES EQUALED OR EXCEEDED FULLY DISTRIBUTED
COSTS (FN5) FOR 43 OF THE 66 MOVEMENTS BY TTX CARS AND 14 OF 66
MOVEMENTS BY RAILROAD-OWNED CARS. 

HAVING MADE THESE FINDINGS, THE COMMISSION ADDRESSED ITSELF TO WHAT
IT CONSIDERED THE "MOST IMPORTANT" QUESTION - "WHETHER THESE (TOFC)
RATES CONSTITUTE DESTRUCTIVE COMPETITION."  313 I.C.C., AT 44.  IT
NOTED AT THE OUTSET THAT, APART FROM THE QUESTION OF RATES, MOST
SHIPPERS PREFER RAIL SERVICE TO SEA-LAND AND SEATRAIN SERVICE AND THAT,
IN ORDER TO ATTRACT TRAFFIC, THE LATTER CARRIERS MUST THEREFORE
ESTABLISH RATES SOMEWHAT BELOW THOSE OF THE RAILROADS.  AS TO RELATIVE
COSTS, THE COMMISSION STATED THAT SEA-LAND COSTS, BOTH OUT-OF-POCKET
AND FULLY DISTRIBUTED, WERE BELOW RAILROAD TOFC COSTS FOR ALL 66
MOVEMENTS USING RAILROAD-OWNED FLATCARS AND FOR ALL BUT 2 OF THE 66
MOVEMENTS USING TTX CARS.  BUT THE COMMISSION EXPLICITLY REFRAINED FROM
RELYING ON THESE FINDINGS.  INSTEAD IT CONCLUDED THAT BECAUSE OF A
NUMBER OF FACTORS: 

"WE CANNOT DETERMINE ON THESE RECORDS WHERE THE INHERENT ADVANTAGES
MAY LIE AS TO ANY OF THE RATES IN ISSUE.  WE MUST RECOGNIZE, ALSO, THAT
COST IS ONLY ONE OF THE ELEMENTS WHICH MAY APPROPRIATELY BE CONSIDERED
IN PASSING UPON THE LAWFULNESS OF RATES.  IN THE EXCEPTIONAL
CIRCUMSTANCES HERE PRESENTED, OTHER CONSIDERATIONS, HEREIN DISCUSSED,
APPEAR TO US DETERMINATIVE OF THE ISSUES."  313 I.C.C., AT 46. 

THE COMMISSION ACKNOWLEDGED THAT THE RECENTLY ENACTED SEC. 15A(3)
PROHIBITED IT FROM HOLDING RAIL RATES UP TO A PARTICULAR LEVEL MERELY
TO PROTECT THE TRAFFIC OF ANOTHER MODE BUT EMPHASIZED THAT THE
PROHIBITION WAS QUALIFIED BY THE PHRASE "GIVING DUE CONSIDERATION TO
THE OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY DECLARED IN THIS
ACT."  (FN6)  IN THIS CASE, THE COMMISSION STATED, THE REDUCED TOFC
RATES WERE AN INITIAL STEP IN A PROGRAM OF RATE REDUCTIONS THAT COULD
"FAIRLY BE SAID TO THREATEN THE CONTINUED OPERATION, AND THUS THE
CONTINUED EXISTENCE, OF THE COASTWISE WATER-CARRIER INDUSTRY
GENERALLY."  313 I.C.C., AT 47.  SINCE IN THE COMMISSION'S VIEW THE
COASTWISE SHIPPING SO THREATENED WAS IMPORTANT TO THE NATIONAL DEFENSE,
TO THE SHIPPING PUBLIC, AND TO THE ECONOMY OF PORTS AND COASTAL AREAS,
(FN7) IT CONCLUDED THAT THE OBJECTIVES OF THE NATIONAL TRANSPORTATION
POLICY REQUIRED THE ESTABLISHMENT AND MAINTENANCE OF A DIFFERENTIAL
BETWEEN RAIL RATES AND THOSE OF SEA-LAND AND SEATRAIN WHICH WOULD
ENABLE THE COASTWISE CARRIERS TO CONTINUE THEIR SERVICE.  THE
COMMISSION DECIDED THAT AN APPROPRIATE DIFFERENTIAL TO ACCOMPLISH THIS
PURPOSE WOULD BE 6% OVER SEA-LAND RATES FOR TOFC SERVICE AND SOMEWHAT
LESS THAN 6% FOR BOXCAR SERVICE.  ACCORDINGLY, THE PROPOSED TOFC RATES
WERE ORDERED TO BE CANCELED, WITHOUT PREJUDICE TO THE FILING OF NEW
SCHEDULES IN CONFORMITY WITH THE COMMISSION'S VIEWS.  (FN8) 

THE APPELLEE RAILROADS THEN BROUGHT THIS ACTION BEFORE A THREE-JUDGE
DISTRICT COURT SEEKING TO HAVE THE COMMISSION'S ORDER SET ASIDE TO THE
EXTENT THAT IT REQUIRED CANCELLATION OF THE PROPOSED TOFC RATES.  IN
NOVEMBER 1961, THE COURT HANDED DOWN ITS OPINION, SETTING ASIDE THE
COMMISSION'S ORDER IN PART AND ENJOINING THE COMMISSION FROM CANCELING
TOFC RATES WHICH RETURN AT LEAST FULLY DISTRIBUTED COSTS, EXCEPT ON THE
BASIS OF CERTAIN SPECIFIED FINDINGS.  199 F. SUPP. 635.  THE COURT HELD
THAT "AT LEAST ON THIS RECORD," SEC. 15A(3) PROHIBITED THE IMPOSITION
OF A RATE DIFFERENTIAL TO PROTECT THE WATER CARRIERS.  THE REFERENCE TO
THE NATIONAL TRANSPORTATION POLICY IN SEC. 15A(3), THE COURT SAID, WAS
INTENDED TO QUALIFY THE PROHIBITION OF MANDATORY DIFFERENTIALS: 

"  ...  ONLY WHEN FACTORS OTHER THAN THE NORMAL INCIDENTS OF FAIR
COMPETITION INTERVENED, SUCH AS A PRACTICE WHICH WOULD DESTROY A
COMPETING MODE OF TRANSPORTATION BY SETTING RATES SO LOW AS TO BE
HURTFUL TO THE PROPONENT AS WELL AS HIS COMPETITOR OR SO LOW AS TO
DEPRIVE THE COMPETITOR OF THE 'INHERENT ADVANTAGE' OF BEING THE LOW
COST CARRIER."  199 F. SUPP., AT 642. 

THE COURT WENT ON TO DISCUSS IN SOME DETAIL ITS UNDERSTANDING OF THE
WAY IN WHICH COSTS OF SERVICE FOR THE DIFFERENT TRANSPORTATION MODES
WERE DETERMINED, THE POSSIBLE REASONS WHY THE COMMISSION HAD BEEN
RELUCTANT TO ACCEPT RELATIVE COSTS AS CRITICAL, AND THE PRECISE
CIRCUMSTANCES UNDER WHICH THE COMMISSION COULD PROPERLY REQUIRE
CANCELLATION OF CERTAIN TOFC RATES.  FINALLY, IN REJECTING THE ARGUMENT
THAT A DIFFERENTIAL WAS REQUIRED IN THE INTERESTS OF THE NATIONAL
DEFENSE, THE COURT STATED THAT THE REFERENCE TO THE NATIONAL DEFENSE IN
THE NATIONAL TRANSPORTATION POLICY WAS MERELY A "HOPED-FOR 'END,'" NOT
AN OPERATIVE POLICY, AND THAT IN ANY EVENT THE COMMISSION'S CONCLUSION
WITH RESPECT TO THE NATIONAL DEFENSE WAS NOT SUPPORTED BY ADEQUATE
EVIDENCE. 

WE NOTED PROBABLE JURISDICTION, 371 U.S. 808, BECAUSE OF THE
IMPORTANCE OF THE QUESTIONS PRESENTED IN EFFECTUATING THE CONGRESSIONAL
DESIGN EMBODIED IN THE INTERSTATE COMMERCE ACT.  (FN9)

                                 II. 

THE SIGNIFICANCE OF SEC. 15A(3) TO THE DETERMINATION OF THESE APPEALS
CAN BEST BE UNDERSTOOD AFTER CONSIDERATION OF THE LEGISLATIVE HISTORY
OF THIS PROVISION. 

CONSIDERATION OF THE PROBLEMS OF THE TRANSPORTATION INDUSTRY AS A WHOLE
AND OF THE RAILROADS IN PARTICULAR.  CONCERNED WITH THEIR DECLINING
SHARE IN AN EXPANDING MARKET, AND WITH WHAT THEY REGARDED AS IMPROPER
ADMINISTRATIVE INTERFERENCE WITH THEIR EFFORTS TO COMPETE, THE
RAILROADS VIGOROUSLY SUPPORTED LEGISLATION INTRODUCED IN 1955 ON THE
BASIS OF A PROPOSAL BY THE SECRETARY OF COMMERCE.  H.R. 6141, 84TH
CONG., 1ST SESS.  THIS BILL, WHICH BECAME KNOWN AS "THE THREE SHALL
NOTS," WOULD HAVE AMENDED SEC. 15A(1) OF THE ACT TO PROVIDE THAT IN
DETERMINING WHETHER A RATE IS LESS THAN A REASONABLE MINIMUM, THE
COMMISSION: 

"  ...  SHALL NOT CONSIDER THE EFFECT OF SUCH CHARGE ON THE TRAFFIC
OF ANY OTHER MODE OF TRANSPORTATION; OR THE RELATION OF SUCH CHARGE TO
THE CHARGE OF ANY OTHER MODE OF TRANSPORTATION; OR WHETHER SUCH CHARGE
IS LOWER THAN NECESSARY TO MEET THE COMPETITION OF ANY OTHER MODE OF
TRANSPORTATION  ...  ." 

THIS BILL WAS STRONGLY OPPOSED BY THE COMMISSION AND BY OTHER
CARRIERS, AND DIED IN COMMITTEE.  A SUBSTANTIALLY SIMILAR BILL,
HOWEVER, WAS INTRODUCED IN THE NEXT CONGRESS, H.R. 5523, 85TH CONG.,
1ST SESS., AND THE COMMISSION RENEWED ITS OPPOSITION.  WHEN, AFTER
HEARINGS, A SENATE SUBCOMMITTEE RECOMMENDED A BILL TO ITS PARENT
COMMITTEE, IT EXPLICITLY REJECTED THE THREE "SHALL-NOTS."  BUT AT THE
SAME TIME IT EXPRESSED ITS CONCERN WITH "OVER-REGULATION" AND
EMPHASIZED THAT ITS OWN PROPOSAL TO ADD A NEW SEC. 15A(3) WAS DESIGNED
TO ENCOURAGE COMPETITION AMONG THE DIFFERENT MODES AND TO PERMIT EACH
MODE TO ASSERT ITS INHERENT ADVANTAGES.  S. REP. NO. 1647, 85TH CONG.,
2D SESS.  10, 18-19.  THE BILL AT THIS STAGE PROVIDED THAT IN A
PROCEEDING INVOLVING COMPETITION WITH ANOTHER MODE: 

"  ...  THE COMMISSION, IN DETERMINING WHETHER A RAIL RATE IS LOWER
THAN A REASONABLE MINIMUM RATE, SHALL CONSIDER THE FACTS AND
CIRCUMSTANCES ATTENDING THE MOVEMENT OF THE TRAFFIC BY RAILROAD AND NOT
BY SUCH OTHER MODE."  ID., AT 18. 

AT HEARINGS BEFORE THE FULL SENATE COMMERCE COMMITTEE, THE COMMISSION
OPPOSED THE BILL AS DRAFTED, NOT BECAUSE IT DISAGREED WITH THE
PRINCIPLES SET OUT IN THE SUBCOMMITTEE REPORT BUT BECAUSE IT FEARED
THAT THE LANGUAGE USED, PARTICULARLY THE ITALICIZED PORTION, WAS
INCONSISTENT WITH THOSE PRINCIPLES AND WAS SUBSTANTIALLY EQUIVALENT TO
THE THREE "SHALL-NOTS."  HEARINGS ON S. 3778 BEFORE THE SENATE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 85TH CONG., 2D SESS. 165
185.  IN PARTICULAR COMMISSIONER (THEN CHAIRMAN) FREAS EXPRESSED
CONCERN THAT IF THE COMMISSION WERE FORECLOSED FROM CONSIDERING THE
EFFECT OF A RATE ON A COMPETING MODE, IT WOULD BE POWERLESS TO REJECT A
RAILROAD RATE WHICH COVERED THE RAILROAD'S OUT-OF-POCKET COSTS, EVEN IF
THAT RATE HAD THE EFFECT OF DESTROYING THE INHERENT ADVANTAGES OF A
LOWER-COST CARRIER.  HE STATED: 

"WHENEVER CONDITIONS PERMIT, GIVEN TRANSPORTATION SHOULD RETURN THE
FULL COST OF PERFORMING CARRIER SERVICE  ...  IN MANY INSTANCES,
HOWEVER, THE FULL COST OF THE LOW-COST FORM OF TRANSPORTATION EXCEEDS
THE OUT-OF-POCKET COST OF ANOTHER.  IF, THEN, WE ARE REQUIRED TO ACCEPT
THE RATES OF HIGH COST CARRIER MERELY BECAUSE THEY EXCEED ITS OUT-OF
POCKET COSTS, WE SEE NO WAY OF PRESERVING THE INHERENT ADVANTAGES OF
THE LOW COST CARRIER."  ID., AT 168. 

COMMISSIONER FREAS MADE IT CLEAR THAT THE COMMISSION BELIEVED THE
RAILROADS SHOULD BE PERMITTED TO ASSERT THEIR INHERENT ADVANTAGES TOO,
ID., AT 172, AND SUGGESTED THAT ANY PROPOSAL SPECIFICALLY AUTHORIZE THE
COMMISSION TO GIVE "DUE CONSIDERATION TO THE INHERENT COST AND SERVICE
ADVANTAGES OF THE RESPECTIVE CARRIERS," ID., AT 169.  IN FURTHER
DISCUSSION, IT WAS INDICATED THAT IT WOULD BE INCONSISTENT WITH THE
NATIONAL TRANSPORTATION POLICY TO PERMIT DESTRUCTION OF THE INHERENT
ADVANTAGES OF ANY MODE OF TRANSPORTATION, ID., AT 170-171, 177, AND
WHEN SENATOR POTTER SUGGESTED THE DELETION OF THE PHRASE "AND NOT BY
SUCH OTHER MODE" AND THE ADDITION OF A REFERENCE TO THE NATIONAL
TRANSPORTATION POLICY, CHAIRMAN FREAS ANSWERED:  "WE WILL BUY SENATOR
POTTER'S SUGGESTION."   ID., AT 177-178.  SENATOR POTTER'S SUGGESTION
WAS ADOPTED IN THE FINAL VERSION OF THE BILL.    OTHER TESTIMONY OF
PARTICULAR INTEREST HERE IS THAT OF JOHN L. WELLER, PRESIDENT OF
SEATRAIN, WHO TESTIFIED ON BEHALF OF SEATRAIN AND PAN-ATLANTIC (NOW SEA
LAND).  IN OPPOSING THE BILL RECOMMENDED BY THE SUBCOMMITTEE, MR.
WELLER EMPHASIZED THAT HE DID NOT SEEK ANY MORE THAN TO MAKE IT
POSSIBLE FOR THE COMMISSION TO PRESERVE THE INHERENT ADVANTAGES OF THE
WATER CARRIERS HE REPRESENTED: 

"AS I EXPLAINED, OUR KIND OF OPERATION CAN ONLY EXIST WITH A
DIFFERENTIAL UNDER THE RAILROAD RATES; THAT IS NO. 1.  WE ARE NOT
ENTITLED TO HAVE SUCH A DIFFERENTIAL, NOR DO I URGE ONE, EXCEPT IN THE
CASE WHERE COST IS LOWER THAN THE RAILROAD COST.  WE HAVE NO RIGHT TO
ASK FOR ANYTHING MORE THAN THAT."  ID., AT 30. 

THE PROPOSAL REPORTED OUT BY THE SENATE COMMERCE COMMITTEE WAS IN THE
FORM ULTIMATELY ADOPTED BY CONGRESS AND CONTAINED THE KEY PROVISION
THAT RATES "SHALL NOT BE HELD UP TO A PARTICULAR LEVEL TO PROTECT THE
TRAFFIC OF ANY OTHER MODE OF TRANSPORTATION, GIVING DUE CONSIDERATION
TO THE OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY DECLARED IN
THIS ACT."  THE COMMITTEE, QUOTING WITH APPROVAL THE SUBCOMMITTEE'S
REPORT, MADE IT CLEAR THAT THE PURPOSE OF THE PROPOSAL WAS TO PERMIT
EACH MODE OF TRANSPORTATION TO ASSERT ITS "INHERENT ADVANTAGES, WHETHER
THEY BE OF SERVICE OR OF COST."  S. REP. NO. 1647, 85TH CONG., 2D SESS.
3.  THE NEW SUBSECTION, THE COMMITTEE STATED, WAS DESIGNED TO REAFFIRM
THE INTENT OF THE 1940 ACT, AN INTENT THAT HAD BEEN CORRECTLY CONSTRUED
BY THE COMMISSION IN 1945 IN NEW AUTOMOBILES IN INTERSTATE COMMERCE,
259 I.C.C. 475, BUT WHICH, IN THE COMMITTEE'S VIEW, HAD NOT BEEN
CONSISTENTLY FOLLOWED.  (FN10)  THE PARTICULAR PASSAGE IN THE NEW
AUTOMOBILES DECISION WHICH THE COMMITTEE ENDORSED CONTAINED THE
STATEMENT: 

"THERE APPEARS NO WARRANT FOR BELIEVING THAT RAIL RATES, FOR EXAMPLE,
SHOULD BE HELD UP TO A PARTICULAR LEVEL TO PRESERVE A MOTOR-RATE
STRUCTURE, OR VICE VERSA."  259 I.C.C., AT 538. 

THIS THEME - THAT CONGRESS WAS FIRMLY OPPOSED TO RATES MAINTAINED BY
THE COMMISSION AT AN ARTIFICIALLY HIGH LEVEL MERELY TO PROTECT
COMPETING MODES - WAS REPEATED IN THE HOUSE COMMERCE COMMITTEE REPORT,
H.R. REP. NO. 1922, 85TH CONG., 2D SESS., AND IN THE DEBATES ON THE
FLOOR OF BOTH HOUSES.  104 CONG. REC. 10822, 10841-10843, 10858-10859,
12524, 12531, 15528.  AS STATED BY REPRESENTATIVE HARRIS, CHAIRMAN OF
THE HOUSE COMMERCE COMMITTEE, IF A CARRIER COULD PROVIDE A RATE THAT
WAS "FULLY COMPENSATORY," THE COMMISSION COULD NOT FORCE IT UP TO A
HIGHER LEVEL "JUST BECAUSE IT IS NECESSARY TO KEEP ANOTHER MODE OF
TRANSPORTATION IN BUSINESS."  ID., AT 12531.  THE MOOD OF CONGRESS WAS
PERHAPS BEST SUMMARIZED BY SENATOR SMATHERS WHEN HE SAID: 

"WE ARE GOING TO ELIMINATE SOME OF THE PATERNALISM WHICH HAS
HERETOFORE EXISTED IN THE MINDS OF THE INTERSTATE COMMERCE COMMISSION. 
I THINK WE WILL BREATHE INTO OUR WHOLE SYSTEM OF TRANSPORTATION SOME
NEW COMPETITION, WHICH OF COURSE IS NEEDED, BECAUSE THE PUBLIC AND THE
CONSUMER WILL BENEFIT THEREFROM."  ID., AT 15528. 

THIS REVEALING LEGISLATIVE HISTORY FILLS OUT THE CONTOURS OF SEC.
15A(3).  THERE CAN BE NO DOUBT THAT THE PURPOSE OF THIS PROVISION WAS
TO PERMIT THE RAILROADS TO RESPOND TO COMPETITION BY ASSERTING WHATEVER
INHERENT ADVANTAGES OF COST AND SERVICE THEY POSSESSED.  THE
COMMISSION, IN THE VIEW OF THE PROPONENTS OF THE BILL, HAD THWARTED
EFFECTIVE COMPETITION BY INSISTING THAT EACH FORM OF TRANSPORTATION
SUBJECT TO ITS JURISDICTION MUST REMAIN VIABLE AT ALL COSTS AND MUST
THEREFORE RECEIVE A SIGNIFICANT SHARE OF THE TRAFFIC.  IT HAD, IN THE
WORDS OF ONE CONGRESSMAN, BECOME A "GIANT HANDICAPPER."  (FN11) 

MOREOVER, IT IS CLEAR THAT CONGRESS DID NOT CONSCIOUSLY OR
INADVERTENTLY DEFEAT THIS PURPOSE WHEN IT INCLUDED IN SEC. 15A(3) A
REFERENCE TO THE NATIONAL TRANSPORTATION POLICY.  THE PRINCIPLE REASON
FOR THIS REFERENCE, AS THE HEARINGS SHOW, WAS TO EMPHASIZE THE POWER OF
THE COMMISSION TO PREVENT THE RAILROADS FROM DESTROYING OR IMPAIRING
THE INHERENT ADVANTAGES OF OTHER MODES.  AND THE PRECISE EXAMPLE GIVEN
TO THE SENATE COMMITTEE, WHICH LED TO THE LANGUAGE ADOPTED, WAS A CASE
IN WHICH THE RAILROADS, BY ESTABLISHING ON A PART OF THEIR OPERATIONS A
COMPENSATORY RATE BELOW THEIR FULLY DISTRIBUTED COST, FORCED A SMALLER
COMPETING LOWER COST MODE TO GO BELOW ITS OWN FULLY DISTRIBUTED COST
AND THUS PERHAPS TO GO OUT OF BUSINESS. 

 III. 

WE AGREE WITH THE DISTRICT COURT THAT "AT LEAST ON THIS RECORD," THE
COMMISSION'S REJECTION OF THE TOFC RATES HERE AT ISSUE AND THE
REQUIREMENT OF A DIFFERENTIAL OVER THE RATES OF THE COASTWISE CARRIERS
WERE NOT CONSISTENT WITH THE MANDATE OF SEC. 15A(3).  IN LIGHT OF THE
FINDINGS AND CONCLUSIONS UNDERLYING THE COMMISSION'S DECISION, AND MORE
PARTICULARLY ITS PUTTING ASIDE THE QUESTION OF "INHERENT ADVANTAGES,"
ITS INSISTENCE THAT TOFC RATES, IN THE WORDS OF THE PROHIBITION IN SEC.
15A(3), "BE HELD UP TO A PARTICULAR LEVEL TO PROTECT THE TRAFFIC" OF
THE COASTWISE CARRIERS CANNOT BE JUSTIFIED ON THE BASIS OF THE
OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY.  SINCE THE COMMISSION
APPEARS TO HAVE RELIED PRINCIPALLY ON TWO ASPECTS OF THAT POLICY - (I)
THE PROHIBITION OF "UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES," AND
(II) THE OBJECTIVE OF PRESERVING A TRANSPORTATION SYSTEM "ADEQUATE TO
MEET THE NEEDS OF THE COMMERCE OF THE UNITED STATES  ...  AND OF THE
NATIONAL DEFENSE" (NOTE 6, SUPRA) - WE SHALL CONSIDER EACH OF THESE
ASPECTS SEPARATELY. 

1.  UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES.  - IF THERE IS ONE
FACT THAT STANDS OUT IN BOLD RELIEF IN THE LEGISLATIVE HISTORY OF SEC.
15A(3), IT IS THAT CONGRESS DID NOT REGARD THE SETTING OF A RATE AT A
PARTICULAR LEVEL AS CONSTITUTING AN UNFAIR OR DESTRUCTIVE COMPETITIVE
PRACTICE SIMPLY BECAUSE THAT RATE WOULD DIVERT SOME OR ALL OF THE
TRAFFIC FROM A COMPETING MODE.  MOREOVER, NEITHER THE COMMISSION
REPRESENTATIVE NOR THE WITNESS WHO TESTIFIED ON BEHALF OF THE APPELLANT
CARRIERS (SUPRA, PP. 754-756) TOOK THIS POSITION, SINCE THEY TOO
RECOGNIZED THAT SUCH AN INTERPRETATION WOULD BE INCONSISTENT WITH THE
MANDATE OF THE NATIONAL TRANSPORTATION POLICY TO "PRESERVE THE INHERENT
ADVANTAGES OF EACH" MODE OF TRANSPORTATION.  IF A CARRIER IS PROHIBITED
FROM ESTABLISHING A REDUCED RATE THAT IS NOT DETRIMENTAL TO ITS OWN
REVENUE REQUIREMENTS MERELY BECAUSE THE RATE WILL DIVERT TRAFFIC FROM
OTHERS, THEN THE CARRIER IS THWARTED FROM ASSERTING ITS OWN INHERENT
ADVANTAGES OF COST AND SERVICE.  NOR SHOULD THE SELECTIVE CHARACTER OF
SUCH A RATE REDUCTION, MADE IN RESPONSE TO A PARTICULAR COMPETITIVE
SITUATION, BE PERMITTED, WITHOUT MORE, TO FURNISH A BASIS FOR REJECTING
THE RATE.  SECTION 15A(3), IN OTHER WORDS, MADE IT CLEAR THAT SOMETHING
MORE THAN EVEN HARD COMPETITION MUST BE SHOWN BEFORE A PARTICULAR RATE
CAN BE DEEMED UNFAIR OR DESTRUCTIVE.  THE PRINCIPLE PURPOSE OF THE
REFERENCE TO THE NATIONAL TRANSPORTATION POLICY, AS WE HAVE SEEN, WAS
TO PREVENT A CARRIER FROM SETTING A RATE WHICH WOULD IMPAIR OR DESTROY
THE INHERENT ADVANTAGES OF A COMPETING CARRIER, FOR EXAMPLE, BY SETTING
A RATE, BELOW ITS OWN FULLY DISTRIBUTED COSTS, WHICH WOULD FORCE A
COMPETITOR WITH A COST ADVANTAGE ON PARTICULAR TRANSPORTATION TO
ESTABLISH AN UNPROFITABLE RATE IN ORDER TO ATTRACT TRAFFIC. 

IT IS TRUE THAT IN THE PRESENT CASE THE COMMISSION FOUND THAT WITH
RESPECT TO VIRTUALLY ALL OF THE TOFC MOVEMENTS INVOLVED, SEA-LAND'S OUT
OF-POCKET AND FULLY DISTRIBUTED COSTS WERE BELOW THOSE OF THE
RAILROADS.  BUT THE COMMISSION AT THE SAME TIME EXPLICITLY STATED THAT
"WE CANNOT DETERMINE ON THESE RECORDS WHERE THE INHERENT ADVANTAGES MAY
LIE AS TO ANY OF THE RATES IN ISSUE."  313 I.C.C., AT 46.  IT IS NOT
FOR US TO MAKE THIS DETERMINATION AT THIS STAGE, OR TO DECIDE IN
ADVANCE PRECISELY HOW EITHER CARRIER'S INHERENT ADVANTAGES SHOULD BE
MEASURED OR PROTECTED.  (FN12)  IT MAY BE, FOR EXAMPLE, THAT NEITHER A
COMPARISON OF "OUT-OF-POCKET" NOR A COMPARISON OF "FULLY DISTRIBUTED"
COSTS, AS THOSE TERMS ARE DEFINED BY THE COMMISSION, IS THE APPROPRIATE
METHOD OF DECIDING WHICH OF TWO COMPETING MODES HAS THE COST ADVANTAGE
ON A GIVEN MOVEMENT.  (FN13)  AND EVEN IF THE COST ADVANTAGE ON EACH
MOVEMENT WERE DETERMINED TO LIE WITH THE COASTWISE CARRIERS, IT MAY BE
THAT SOME OR ALL OF THE TOFC RATES AT ISSUE HERE SHOULD BE ALLOWED TO
STAND BECAUSE THEY WOULD NOT UNDULY IMPAIR THAT ADVANTAGE.  (FN14)
THESE AND OTHER SIMILAR QUESTIONS SHOULD BE LEFT FOR INITIAL RESOLUTION
TO THE COMMISSION'S INFORMED JUDGMENT. 

THE COURT BELOW SET OUT AT SOME LENGTH ITS UNDERSTANDING OF THE
COMMISSION'S METHODS OF ARRIVING AT CARRIER COSTS, ITS ANALYSIS OF THE
ROLE OF "VALUE-OF-SERVICE" CONCEPTS IN RATE MAKING, AND ITS VIEWS OF
THE PRECISE CIRCUMSTANCES UNDER WHICH THE COMMISSION COULD LAWFULLY
DISALLOW THE TOFC RATES AT ISSUE.  WE FIND IT UNNECESSARY TO CONSIDER
THAT DISCUSSION IN THIS INSTANCE, SINCE WE HOLD ONLY THAT ON THE
PRESENT RECORD, THE DISALLOWANCE OF THE RATES IN QUESTION WAS NOT
ADEQUATELY SUPPORTED.  CF. SECURITIES & EXCHANGE COMM'N V. CHENERY
CORP., 318 U.S. 80, 87. 

2.  THE NEEDS OF THE COMMERCE OF THE UNITED STATES AND OF THE
NATIONAL DEFENSE.  - THE COMMISSION GAVE CONSIDERABLE WEIGHT TO THE
FACTOR OF "NATIONAL DEFENSE" AND PERHAPS OF "COMMERCE" IN ARRIVING AT
ITS DECISION.  BUT THE DISTRICT COURT DISCOUNTED THESE FACTORS,
CONCLUDING THAT THE REFERENCE IN THE NATIONAL TRANSPORTATION POLICY TO
THE NATIONAL DEFENSE (AND PRESUMABLY TO COMMERCE AS WELL) REPRESENTED
MERELY A "HOPED-FOR 'END,'" NOT AN OPERATIVE POLICY.  WE DISAGREE WITH
THIS CONCLUSION, BUT HOLD THAT THE COMMISSION'S RELIANCE ON THESE
FACTORS WAS NOT SUPPORTED BY ADEQUATE FINDINGS OR SUBSTANTIAL
EVIDENCE. 

THE PRIMARY REASON FOR THE REFERENCE TO THE NATIONAL TRANSPORTATION
POLICY IN SEC. 15A(3) WAS TO CONFIRM THE COMMISSION'S POWER TO PROTECT
THE INHERENT ADVANTAGES OF ALL CARRIERS FROM DESTRUCTIVE COMPETITION. 
BUT WE CANNOT CONCLUDE THAT THIS WAS THE ONLY REASON, ESPECIALLY IN
VIEW OF THE CHOICE NOT TO ACCEPT THE COMMISSION'S PROPOSAL, WHICH WOULD
HAVE EXPRESSED THE QUALIFICATION IN TERMS OF THE INHERENT ADVANTAGE
ELEMENT ALONE.  SEE P. 755, SUPRA.  NOR CAN WE CONCLUDE THAT THE
STATUTORY REFERENCES TO SUCH VITAL CONSIDERATIONS AS NATIONAL DEFENSE
ARE MERE WINDOW DRESSING, WITHOUT ANY PRACTICAL SIGNIFICANCE IN TERMS
OF THE COMMISSION'S FUNCTION.  "CONGRESS UNEQUIVOCALLY RESERVED TO THE
COMMISSION POWER TO REGULATE REASONABLENESS OF INTERSTATE RATES IN THE
LIGHT OF THE NEEDS OF NATIONAL DEFENSE."  UNITED STATES V. CAPITAL
TRANSIT CO., 325 U.S. 357, 362. 

ON THE OTHER HAND, BY RECOGNIZING THE RELEVANCE OF SUCH
CONSIDERATIONS AS NATIONAL DEFENSE, WE DO NOT IMPLY THAT THESE BROAD
POLICY FACTORS MAY BE APPLIED SO FREELY AS TO NULLIFY EITHER THE MORE
PARTICULARIZED MANDATES OF THE NATIONAL TRANSPORTATION POLICY OR THE
CLEAR CONGRESSIONAL DESIGN EMBODIED IN SEC. 15A(3).  NORMALLY, IT IS
THESE MORE SPECIFIC CONSIDERATIONS THAT SHOULD GOVERN THE LAWFULNESS OF
PROPOSED RATES IN A CASE INVOLVING INTERMODAL COMPETITION.  ONLY UNDER
EXTRAORDINARY CIRCUMSTANCES MAY THE COMMISSION PROPERLY PERMIT THEM TO
BE OUTWEIGHED.  TO JUSTIFY SUCH A RESULT, WE BELIEVE IT MUST BE
DEMONSTRATED THAT THE PROPOSED RATES IN THEMSELVES GENUINELY THREATEN
THE CONTINUED EXISTENCE OF A TRANSPORTATION SERVICE THAT IS UNIQUELY
CAPABLE OF FILLING A TRANSCENDENT NATIONAL DEFENSE OR OTHER PUBLIC
NEED. 

MEASURED AGAINST THIS STANDARD, THE COMMISSION'S CONCLUSIONS CANNOT
BE SUSTAINED.  THE COMMISSION DID STATE THAT THE PROPOSED RATES WERE AN
"INITIAL STEP" IN A PROGRAM OF RATE REDUCTIONS THAT "CAN FAIRLY BE SAID
TO THREATEN" THE EXISTENCE OF THE COASTWISE CARRIERS, BUT IT MADE NO
FINDINGS, AND REFERRED TO NO SUPPORTING EVIDENCE, TO THE EFFECT THAT
THESE PARTICULAR TOFC RATES WOULD DRIVE THE CORRESPONDING WATER CARRIER
RATES BELOW A PROFITABLE LEVEL OR OTHERWISE ENDANGER THE CARRIERS'
SURVIVAL.  CF. BURLINGTON TRUCK LINES, INC., V. UNITED STATES, 371 U.S.
156, 167-168; GILBERTVILLE TRUCKING CO. V. UNITED STATES, 371 U.S. 115,
130-131.  IT IS NOT ENOUGH TO RELY ON THE POSSIBLE EFFECT OF OTHER RATE
REDUCTIONS NOT HERE IN ISSUE, A SITUATION WITH WHICH THE COMMISSION HAS
AMPLE POWER TO DEAL IF OCCASION ARISES. 

NOR DID THE COMMISSION PRESENT AN ADEQUATE BASIS FOR CONCLUDING THAT
EITHER THE NATIONAL DEFENSE OR ANY SIGNIFICANT SEGMENT OF THE COUNTRY'S
COMMERCE DEPENDS UPON THE OPERATION OF SEA-LAND OR SEATRAIN.  (FN15)
WE NEED NOT CONSIDER THE QUESTION WHETHER RELIANCE ON OTHER ADDITIONAL
SOURCES MIGHT HAVE BEEN SUFFICIENT, (FN16) FOR WE BELIEVE THAT THE
QUESTION IS ONE FOR INITIAL DETERMINATION BY THE COMMISSION, AND THAT
ALL PARTIES SHOULD HAVE AN OPPORTUNITY TO ADDUCE RELEVANT EVIDENCE,
INCLUDING ANY EVIDENCE TENDING TO INDICATE THAT DISALLOWANCE OF THE
PROPOSED TOFC RATES MIGHT ADVERSELY AFFECT THE COMMERCE OR THE NATIONAL
DEFENSE OF THE COUNTRY.  ONCE RAISED, THESE CONSIDERATIONS (LIKE THE
FACTOR OF INHERENT ADVANTAGE) DO NOT EXIST SOLELY FOR THE BENEFIT OF
PROTESTING CARRIERS. 

IN CONCLUSION:  WE AGREE WITH THE DISTRICT COURT THAT THE
COMMISSION'S ORDER, INSOFAR AS IT RELATED TO THE TOFC RATES AT ISSUE,
MUST BE SET ASIDE.  WE DISAGREE, HOWEVER, WITH THAT COURT'S
DETERMINATION THAT THE NEEDS OF THE NATIONAL DEFENSE ARE NOT AN
OPERATIVE PART OF THE NATIONAL TRANSPORTATION POLICY, AND WE DEEM IT
INAPPROPRIATE TO APPROVE OR DISAPPROVE OF OTHER ASPECTS OF THE COURT'S
OPINION.  ACCORDINGLY, WE DECIDE THAT THE JUDGMENT BELOW SHOULD BE
VACATED, THE ORDER OF THE COMMISSION SET ASIDE TO THE EXTENT THAT IT
RELATED TO CERTAIN RAILROAD TOFC RATES DESCRIBED HEREIN, AND THE CAUSE
REMANDED TO THE COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED.    FN1  SECTION 15A(3) OF THE INTERSTATE
COMMERCE ACT, 72 STAT. 572, 49 U.S.C. SEC. A(3), PROVIDES: 

"IN A PROCEEDING INVOLVING COMPETITION BETWEEN CARRIERS OF DIFFERENT
MODES OF TRANSPORTATION SUBJECT TO THIS ACT, THE COMMISSION, IN
DETERMINING WHETHER A RATE IS LOWER THAN A REASONABLE MINIMUM RATE,
SHALL CONSIDER THE FACTS AND CIRCUMSTANCES ATTENDING THE MOVEMENT OF
THE TRAFFIC BY THE CARRIER OR CARRIERS TO WHICH THE RATE IS
APPLICABLE.  RATES OF A CARRIER SHALL NOT BE HELD UP TO A PARTICULAR
LEVEL TO PROTECT THE TRAFFIC OF ANY OTHER MODE OF TRANSPORTATION,
GIVING DUE CONSIDERATION TO THE OBJECTIVES OF THE NATIONAL
TRANSPORTATION POLICY DECLARED IN THIS ACT."    FN2  THIS BREAK-BULK
SERVICE INVOLVED THE PHYSICAL UNLOADING OF FREIGHT FROM RAIL CAR OR
TRUCK AND THE LOADING OF THE CARGO INTO THE SHIPS, WITH THE OPERATION
REVERSED AT THE PORT OF DESTINATION. 

FN3  SINCE THE ESTABLISHMENT OF THESE REDUCED RATES WOULD LEAVE
HIGHER RATES IN EFFECT TO AND FROM CERTAIN INTERMEDIATE POINTS
INVOLVING SHORTER HAULS, THUS VIOLATING THE LONG- AND SHORT-HAUL
PROVISIONS OF SEC. 4(1) OF THE ACT, 49 U.S.C. SEC. 4(1), THE RAILROADS
ALSO APPLIED TO THE COMMISSION FOR THE RELIEF FROM THESE PROVISIONS
WHICH SEC. 4(1) PERMITS THE COMMISSION TO GRANT.  THIS FOURTH-SECTION
APPLICATION WAS DENIED BY THE COMMISSION BECAUSE, FOR REASONS
SUMMARIZED IN THE TEXT OF THIS OPINION, THE COMMISSION FOUND THE
PROPOSED TOFC RATES NOT SHOWN TO BE JUST AND REASONABLE.  WITH RESPECT
TO THE FOURTH-SECTION APPLICATION ITSELF, THE COMMISSION NOTED THAT "NO
SHIPPERS OR RECEIVERS LOCATED AT THE INTERMEDIATE POINTS OPPOSE THE
GRANTING OF FOURTH-SECTION RELIEF."  313 I.C.C., AT 33.  INDEED, NO
INDIVIDUAL SHIPPERS CAME FORWARD TO URGE THAT THE SELECTIVE CHARACTER
OF THE REDUCED TOFC RATES HERE INVOLVED IN ANY WAY DISCRIMINATED
AGAINST THEM, AND IN THIS COURT THE NATIONAL INDUSTRIAL TRAFFIC LEAGUE,
A NATIONWIDE ORGANIZATION OF SHIPPERS, HAS FILED A BRIEF AS AMICUS
CURIAE URGING AFFIRMANCE OF THE DECISION BELOW. 

FN4  THE RATES FOR THESE SIX MOVEMENTS WERE WITHDRAWN AND ARE NOT AT
ISSUE.  (THE COMMISSION HAD STATED THAT IT HAD NO WAY OF KNOWING THE
PERCENTAGES OF TOFC TRAFFIC THAT WOULD MOVE IN TTX CARS AND THE
PERCENTAGE THAT WOULD MOVE IN RAILROAD-OWNED CARS AND HAD THUS
CONCLUDED THAT THE RATES FOR THE SIX MOVEMENTS IN QUESTION HAD NOT BEEN
SHOWN TO BE COMPENSATORY.) 

FN5  THE COMMISSION HAS STATED, IN DISCUSSING RAILROAD COSTS, THAT:
"FULLY DISTRIBUTED COSTS BASED ON THE OUT-OF-POCKET COSTS PLUS A
REVENUE-TON AND REVENUE TON-MILE DISTRIBUTION OF THE CONSTANT COSTS,
INCLUDING DEFICITS, INDICATE THE REVENUE NECESSARY TO A FAIR RETURN ON
THE TRAFFIC, DISREGARDING ABILITY TO PAY."  NEW AUTOMOBILES IN
INTERSTATE COMMERCE, 259 I.C.C. 475, 513 (1945). 

FN6  THE NATIONAL TRANSPORTATION POLICY, 54 STAT. 899, 49 U.S.C.
PRECEDING SEC. 1, WAS ADDED TO THE INTERSTATE COMMERCE ACT IN 1940.  IT
PROVIDES: 

"IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF
THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES
OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY." 

FN7  IN SUPPORT OF THESE CONCLUSIONS, THE COMMISSION QUOTED WITH
APPROVAL PASSAGES FROM A 1955 REPORT OF THE UNITED STATES MARITIME
ADMINISTRATION, "A REVIEW OF THE COASTWISE AND INTERCOASTAL SHIPPING
TRADES," WHICH EMPHASIZED THE NATIONAL DEFENSE IMPORTANCE OF BREAK-BULK
CARGO SHIPS; FROM A 1950 CONGRESSIONAL REPORT, S. REP. NO. 2494, 81ST
CONG., 2D SESS. 17, WHICH REFERRED TO "THE IMPORTANCE TO NATIONAL
DEFENSE OF HAVING DOMESTIC TONNAGE READILY AVAILABLE"; AND FROM A 1945
COMMISSION DECISION, WAR SHIPPING ADMIN.  T.A. APPLICATION, 260 I.C.C.
589, 591, WHICH SPOKE OF THE "DEPENDENCY OF PORTS AND COASTAL AREAS
UPON THE EXISTENCE OF WATER TRANSPORTATION." 

FN8  FIVE OF THE 10 COMMISSIONERS THEN IN OFFICE JOINED IN THE ENTIRE
REPORT.  A SIXTH, COMMISSIONER HUTCHINSON, CONCURRED, STATING THAT HE
WAS "IN GENERAL AGREEMENT WITH THE MAJORITY REPORT," 313 I.C.C., AT 50,
ADDING HIS OWN VIEW THAT "THE ULTIMATE EFFECT OF APPROVAL OF THE (TOFC)
SCHEDULES WOULD BE TO ALLOW RATES OF THE HIGH-COST CARRIER (TOFC) TO
GRAVITATE TO A LEVEL WHEREBY THE LOW-COST CARRIER (SEA-LAND) WILL BE
FORCED TO GO BELOW ITS FULL COSTS IN ORDER TO PARTICIPATE IN THE
TRAFFIC."  ID., AT 51.  HE ALSO EXPRESSED SOME DOUBT AS TO WHETHER A 6%
DIFFERENTIAL WAS WARRANTED.  COMMISSIONER MCPHERSON, CONCURRING IN
PART, WOULD HAVE APPROVED ALL COMPENSATORY RATES BUT WOULD HAVE IMPOSED
NO DIFFERENTIAL.  THREE COMMISSIONERS (COMMISSIONER FREAS, JOINED BY
CHAIRMAN WINCHELL AND COMMISSIONER WEBB) DISSENTED ON THE GROUND THAT
THE ACT NEITHER REQUIRED NOR PERMITTED "BLANKET PROTECTION" FOR WATER
CARRIERS OR FOR ANY MODE OF TRANSPORTATION.  ID., AT 51-52. 

IN VIEW OF OUR DISPOSITION OF THIS CASE, IT IS NOT NECESSARY TO
CONSIDER WHETHER, IN LIGHT OF COMMISSIONER HUTCHINSON'S CONCURRENCE,
THE "MAJORITY REPORT" IN FACT REPRESENTED THE VIEWS OF A MAJORITY OF
THE COMMISSION AND, IF NOT, WHETHER THE COMMISSION'S DECISION COULD BE
SUSTAINED IN THE ABSENCE OF ANY RATIONALE COMMANDING THE SUPPORT OF A
MAJORITY OF THE AGENCY.  CF. SECURITIES & EXCHANGE COMM'N V. CHENERY
CORP., 318 U.S. 80. 

FN9  THERE IS SOME QUESTION AS TO PRECISELY WHAT RATES ARE IN ISSUE
HERE; THE UNITED STATES AND THE COMMISSION SUGGEST THAT THESE APPEALS
RELATE ONLY TO THE TOFC RATES WHICH ARE EQUAL TO OR EXCEED FULLY
DISTRIBUTED COSTS, SINCE THE COURT BELOW DID NOT ENJOIN THE COMMISSION
FROM CANCELING COMPENSATORY TOFC RATES UNDER THAT LEVEL.  AS WE READ
THE OPINION AND JUDGMENT BELOW, HOWEVER, THE COMMISSION'S ORDER WAS SET
ASIDE INSOFAR AS IT CANCELED ALL OF THE PROPOSED TOFC BEFORE THE COURT,
AND THUS ANY ORDER ENTERED BY THE COMMISSION IN THE FUTURE WITH RESPECT
TO THOSE RATES WOULD BE SUBJECT TO FULL JUDICIAL REVIEW.  ACCORDINGLY,
WE REJECT AS TOO NARROW THE POSITION THAT THE RELEVANCE OF THE PRESENT
APPEALS IS LIMITED TO TOFC RATES THAT RETURN AT LEAST THE FULLY
DISTRIBUTED COSTS OF CARRIAGE. 

FN10  DURING THE HEARINGS, SENATOR SMATHERS HAD REFERRED TO SEVERAL
COMMISSION DECISIONS, E.G., PETROLEUM PRODUCTS IN ILL. TERRITORY, 280
I.C.C. 681, 691 (1951); PETROLEUM PRODUCTS FROM LOS ANGELES TO ARIZONA
AND NEW MEXICO, 280 I.C.C. 509 (1951), WHICH WERE BELIEVED TO HAVE
SUBSTANTIALLY DEPARTED FROM THE PRINCIPLES LAID DOWN IN NEW
AUTOMOBILES.  HEARINGS ON S. 3778 BEFORE THE SENATE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, 85TH CONG., 2D SESS. 174-175. 

FN11  HEARINGS, SUPRA, NOTE 10, AT 82. 

FN12  IT WAS ARGUED BELOW, AND AT LEAST INTIMATED HERE, THAT THE
RAILROADS HAD FAILED TO SUSTAIN THE BURDEN OF PROVING THAT THEY HAD THE
RELATIVE COST ADVANTAGE.  BUT WE AGREE WITH THE COURT BELOW THAT IF A
CARRIER SHOWS A PROPOSED RATE TO BE JUST AND REASONABLE FROM THE
STANDPOINT OF ITS OWN REVENUE REQUIREMENTS, IT IS FOR A PROTESTING
CARRIER WHO RELIES ON A CLAIM OF INHERENT COST ADVANTAGE TO BEAR THE
BURDEN OF PERSUADING THE COMMISSION OF THE EXISTENCE OF THAT
ADVANTAGE.  OF COURSE, WHEN SUCH AN ISSUE IS RAISED, EACH CARRIER
SHOULD BRING FORWARD THE DATA RELATING TO ITS OWN COSTS THAT ARE
REQUIRED FOR RESOLUTION OF THE ISSUE.  SEE VARIOUS COMMODITIES FROM OR
TO ARK. & TEX., 314 I.C.C. 215. 

FN13 THE UTILITY OF THE CONCEPTS OF FULLY DISTRIBUTED AND OUT-OF
POCKET COSTS MAY BE LIMITED TO THE AREA IN WHICH THEY HAVE
TRADITIONALLY BEEN USED - THAT OF DETERMINING THE REASONABLENESS OF A
RATE FROM THE STANDPOINT OF A CARRIER'S OWN REVENUE REQUIREMENTS.  IF
SO, SOME DIFFERENT MEASURE MAY BE PREFERRED FOR COMPARING THE COSTS OF
TWO OR MORE MODES OF TRANSPORTATION. 

FN14  EVEN THOUGH CARRIER A MAY HAVE LOWER COSTS THAN CARRIER B, THE
OVERALL ADVANTAGE MAY REST WITH B, FOR EXAMPLE, IF THE DIFFERENCE IN
COST IS VERY SLIGHT BUT THE SERVICE OF B IS SO SUPERIOR AS TO OUTWEIGH
ANY SUCH MARGINAL COST DIFFERENCE.  IN THIS EVENT A RATE ESTABLISHED BY
B MAY BE LAWFUL EVEN IF IT HAS THE EFFECT OF DIVERTING SOME OR ALL OF
A'S TRAFFIC. 

CONVERSELY, THE COST ADVANTAGE OF A OVER B MAY BE SO GREAT THAT EVEN
IF B WERE TO REDUCE ITS RATE TO THE LEVEL OF ITS OUT-OF-POCKET COSTS, A
MIGHT BE ABLE TO CONTINUE TO COMPETE EFFECTIVELY AND STILL CHARGE A
PROFITABLE RATE.  IN THIS EVENT B'S REDUCED RATE WOULD NOT APPEAR TO
IMPAIR A'S INHERENT COST ADVANTAGE. 

FN15  THE MATERIALS RELIED UPON BY THE COMMISSION ARE REFERRED TO IN
NOTE 7, SUPRA.  THESE MATERIALS WERE GENERAL IN NATURE, AND THE MOST
RECENT DATED BACK TO 1955.  FURTHER, THEY WERE NOT SUFFICIENTLY RELATED
TO THE SPECIFIC SERVICE RENDERED BY SEA-LAND AND SEATRAIN, WHICH, WE
WERE INFORMED BY SEA-LAND'S COUNSEL AT ORAL ARGUMENT, HAVE A COMBINED
TOTAL OF ONLY EIGHT SHIPS CURRENTLY IN OPERATION. 

FN16  THE COMMISSION IN ITS BRIEF HAS CITED THE 1960 TESTIMONY OF
VICE ADMIRAL WILSON AND OF THE MAYOR OF SAVANNAH, GEORGIA, IN DECLINE
OF COASTWISE AND INTERCOASTAL SHIPPING INDUSTRY, HEARINGS BEFORE THE
MERCHANT MARINE AND FISHERIES SUBCOMMITTEE OF THE SENATE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, 86TH CONG., 2D SESS. 83-86, 105-106,
AND HAS ALSO CITED A 1961 LETTER FROM VICE ADMIRAL SYLVESTER TO SENATOR
BUTLER, REPRODUCED AT 107 CONG. REC. 7299-7302. 
..END :




WILLIAMS V. ZUCKERT 372 U.S. 765 


NO. 133.  DECIDED APRIL 22, 1963.  - REPORTED BELOW:  111 U.S. APP. D.C.
294, 296 F.2D 416. 


REHEARING GRANTED; ORDER DISMISSING WRIT OF CERTIORARI VACATED;
JUDGMENT OF COURT OF APPEALS VACATED; AND CASE REMANDED TO DISTRICT
COURT FOR FURTHER PROCEEDINGS. 

WILLIAMS V. ZUCKERT, SECRETARY OF THE AIR FORCE, ET AL. 

ON PETITION FOR REHEARING. 

PER CURIAM. 

IN VIEW OF THE FACTUAL CONTENTIONS ADVANCED IN THE PETITION FOR
REHEARING FILED BY THE PETITIONER AND IN THE RESPONDENTS' REPLY
THERETO, THE PETITION FOR REHEARING IS GRANTED AND THE ORDER HERETOFORE
ENTERED, 371 U.S. 531, DISMISSING THE WRIT OF CERTIORARI IS VACATED. 
THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO HOLD A HEARING AND
DETERMINE WHETHER THE PETITIONER, DESIRING THE PRESENCE OF WITNESSES AT
HIS HEARING, EITHER DISCHARGED HIS INITIAL BURDEN UNDER THE APPLICABLE
REGULATIONS BY MAKING TIMELY AND SUFFICIENT ATTEMPT TO OBTAIN THEIR
PRESENCE OR, UNDER THE CIRCUMSTANCES AND WITHOUT FAULT OF HIS OWN, WAS
JUSTIFIED IN FAILING TO MAKE SUCH ATTEMPT, AND, IF SO, WHETHER PROPER
AND TIMELY DEMAND WAS MADE UPON THE AIR FORCE SO THAT IT WAS REQUIRED
TO PRODUCE SUCH WITNESSES FOR CROSS-EXAMINATION.  UPON MAKING SUCH
DETERMINATION, THE DISTRICT COURT SHALL THEREUPON ENTER SUCH FURTHER
ORDER OR JUDGMENT AS MAY BE APPROPRIATE. 
..END :





















HATTEN V. WAINWRIGHT 372 U.S. 766 


NO. 32, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


HATTEN V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















RICE V. WAINWRIGHT 372 U.S. 766 


NO. 15, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  134 SO. 2D 12. 


RICE V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















WEIGNER V. RUSSELL 372 U.S. 767 


NO. 56, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


WEIGNER V. RUSSELL, CORRECTIONAL SUPERINTENDENT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :














GILES V. MARYLAND 372 U.S. 767 


NO. 834.  DECIDED APRIL 22, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  229 MD. 370, 183 A.2D
359. 


GILES ET AL. V. MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















VECCHIOLLI V. MARONEY 372 U.S. 768 


NO. 74, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


VECCHIOLLI V. MARONEY, CORRECTIONAL SUPERINTENDENT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :














GARNER V. PENNSYLVANIA 372 U.S. 768 


NO. 67, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  SEE 196 PA. SUPER. 
578, 176 A.2D 177. 


GARNER V. PENNSYLVANIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :













ARNOLD V. DIRECTOR, FLORIDA DIVISION OF CORRECTIONS 372 U.S. 769 


NO. 771, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  145 SO. 2D 478. 


ARNOLD V. DIRECTOR, FLORIDA DIVISION OF CORRECTIONS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















WATT V. WAINWRIGHT 372 U.S. 769 


NO. 575, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


WATT V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















PATTERSON V. NEWPORT NEWS REDEVELOPMENT & HOUSING AUTHORITY 372 U.S.
770 


NO. 896, MISC.  DECIDED APRIL 22, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


PATTERSON ET AL. V. NEWPORT NEWS REDEVELOPMENT & HOUSING AUTHORITY. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HAYNES V. FLORIDA 372 U.S. 770 


NO. 37, MISC.  DECIDED APRIL 22, 1963. 


MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS DENIED;
CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED. 

HAYNES V. FLORIDA. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF HABEAS CORPUS IS
DENIED.  TREATING THE PAPERS SUBMITTED AS A PETITION FOR WRIT OF
CERTIORARI TO THE SUPREME COURT OF FLORIDA, CERTIORARI IS GRANTED.  ON
WRIT OF CERTIORARI, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED
FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V. WAINWRIGHT, 372 U.S.
335. 
..END :









PATTERSON V. CITY OF NEWPORT NEWS 372 U.S. 771 


NO. 983, MISC.  DECIDED APRIL 22, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


PATTERSON V. CITY OF NEWPORT NEWS. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















TILLER V. CALIFORNIA 372 U.S. 771 


NO. 797, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  206 CAL. APP. 2D 534,
23 CAL. RPTR.  876. 


TILLER V. CALIFORNIA ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S., AT 358,
360. 
..END :









TREADWELL CONSTRUCTION CO. V. UNITED STATES 372 U.S. 772 


NO. 120.  DECIDED APRIL 22, 1963.  - REPORTED BELOW:  299 F.2D 789. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO DISTRICT
COURT FOR FURTHER CONSIDERATION. 

TREADWELL CONSTRUCTION CO. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA FOR FURTHER CONSIDERATION IN LIGHT OF
WEYERHAEUSER STEAMSHIP CO. V. UNITED STATES, 372 U.S. 597. 
..END :










WALKER V. RANDOLPH 372 U.S. 773 


NO. 2, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


WALKER V. RANDOLPH, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF WILLIAMSON
COUNTY, ILLINOIS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :














LAFORGE V. WAINWRIGHT 372 U.S. 774 


NO. 6, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


LAFORGE V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















TYLER V. NORTH CAROLINA 372 U.S. 775 


NO. 8, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


TYLER V. NORTH CAROLINA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :














PATTERSON V. WARDEN, MARYLAND PENITENTIARY 372 U.S. 776 


NO. 14, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  227 MD. 194, 175 A.2D
746. 


PATTERSON V. WARDEN, MARYLAND PENITENTIARY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
MARYLAND. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :













LINDNER V. NASH 372 U.S. 777 


NO. 61, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


LINDNER V. NASH, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















TULL V. WAINWRIGHT 372 U.S. 778 


NO. 126, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


TULL V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















DOUGLAS V. WAINWRIGHT 372 U.S. 779 


NO. 219, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


DOUGLAS V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















JORDAN V. WIMAN 372 U.S. 780 


NO. 250, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  273 ALA. 709, 142 SO.
2D 679. 


JORDAN V. WIMAN, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRGHT, 372 U.S. 335. 
..END :














DOUGHTY V. MAXWELL 372 U.S. 781 


NO. 516, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  173 OHIO ST. 407, 183
N.E.2D 368. 


DOUGHTY V. MAXWELL, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :














HARTSFIELD V. WAINWRIGHT 372 U.S. 782 


NO. 522, MISC.  DECIDED APRIL 22, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


HARTSFIELD V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GIDEON V.
WAINWRIGHT, 372 U.S. 335. 
..END :















DUGAN V. RANK 372 U.S. 609 


NO. 31.  ARGUED JANUARY 7, 1963.  - DECIDED APRIL 15, 1963.* - 293 F.2D
340, 307 F.2D 96, AFFIRMED IN PART, REVERSED IN PART AND REMANDED. 

*TOGETHER WITH NO. 115, DELANO-EARLIMART IRRIGATION DISTRICT ET AL.
V. RANK ET AL., ON CERTIORARI TO THE SAME COURT. 


RESPONDENTS, WHO ARE CLAIMANTS TO WATER RIGHTS ALONG THE SAN JOAQUIN
RIVER BELOW THE FRIANT DAM IN CALIFORNIA, BROUGHT SUIT AGAINST THE
UNITED STATES, LOCAL OFFICIALS OF THE UNITED STATES BUREAU OF
RECLAMATION, AND A NUMBER OF IRRIGATION AND UTILITY DISTRICTS TO ENJOIN
THE STORING AND DIVERSION OF WATER AT THE DAM, WHICH IS PART OF THE
CENTRAL VALLEY RECLAMATION PROJECT, AUTHORIZED BY CONGRESS AND
UNDERTAKEN BY THE BUREAU OF RECLAMATION UNDER THE ACT OF AUGUST 26,
1937, 50 STAT. 844.  THE SUIT WAS BROUGHT ORIGINALLY IN A STATE COURT
AND WAS REMOVED TO A FEDERAL DISTRICT COURT.  HELD: 

1.  THE MCCARRAN AMENDMENT, 66 STAT. 560, GRANTING CONSENT TO JOIN
THE UNITED STATES AS A DEFENDANT IN ANY SUIT "FOR THE ADJUDICATION OF
RIGHTS TO THE USE OF WATER OF A RIVER SYSTEM OR OTHER SOURCE," IS NOT
APPLICABLE HERE, SINCE ALL CLAIMANTS TO WATER RIGHTS ALONG THE RIVER
WERE NOT MADE PARTIES, NO RELIEF WAS ASKED AS BETWEEN CLAIMANTS, AND
PRIORITIES WERE NOT SOUGHT TO BE ESTABLISHED AS TO THE APPROPRIATIVE
AND PRESCRIPTIVE RIGHTS ASSERTED.  THEREFORE THE UNITED STATES HAS NOT
CONSENTED TO BE MADE A PARTY DEFENDANT IN THIS SUIT, AND IT MUST BE
DISMISSED FROM THE SUIT FOR WANT OF JURISDICTION.  PP. 617-619. 

2.  THE UNITED STATES WAS EMPOWERED TO ACQUIRE THE WATER RIGHTS OF
RESPONDENTS BY PHYSICAL SEIZURE; THE OFFICIALS OF THE BUREAU OF
RECLAMATION DID NOT ACT BEYOND THE SCOPE OF THEIR AUTHORITY; THEIR
ALLEGED INTERFERENCE WITH THE CLAIMED RIGHTS OF RESPONDENTS WOULD NOT
BE A TRESPASS BUT A PARTIAL TAKING FOR WHICH THE UNITED STATES WOULD BE
REQUIRED TO COMPENSATE RESPONDENTS; THE SUIT TO ENJOIN THESE OFFICIALS
ACTUALLY WAS A SUIT AGAINST THE UNITED STATES; AND IT MUST BE DISMISSED
AS TO THESE OFFICIALS.  PP. 611, 619-623. 

3.  IF RESPONDENTS HAVE VALID WATER RIGHTS WHICH HAVE BEEN INTERFERED
WITH OR PARTIALLY TAKEN, THEIR REMEDY IS NOT THE STOPPAGE OF THIS
GOVERNMENT RECLAMATION PROJECT BUT A SUIT AGAINST THE UNITED STATES
UNDER THE TUCKER ACT, 28 U.S.C. SEC. 1346, FOR DAMAGES, MEASURED BY THE
DIFFERENCE IN THE MARKET VALUE OF RESPONDENTS' LAND BEFORE AND AFTER
THE INTERFERENCE OR TAKING.  PP. 611, 623-626. 

4.  THE IRRIGATION AND UTILITY DISTRICTS WHICH HAVE CONTRACTS WITH
THE UNITED STATES FOR THE USE OF THE WATER FROM THE LAKE CREATED BY
THIS DAM MUST LIKEWISE BE DISMISSED FROM THIS SUIT.  P. 626. 

DUGAN ET AL. V. RANK ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS INJUNCTION SUIT, FILED IN 1947 BY WATER RIGHT CLAIMANTS ALONG
THE SAN JOAQUIN RIVER BELOW THE FRIANT DAM, CALIFORNIA, AND AGAINST
LOCAL OFFICIALS OF THE UNITED STATES BUREAU OF RECLAMATION, A NUMBER OF
IRRIGATION AND UTILITY DISTRICTS AND, SUBSEQUENTLY, AGAINST THE UNITED
STATES AS WELL, SOUGHT TO PREVENT THE STORING AND DIVERTING OF WATER AT
THE DAM, WHICH IS PART OF THE CENTRAL VALLEY RECLAMATION PROJECT.  50
STAT. 844, 850 (1937).  SEE UNITED STATES V. GERLACH LIVE STOCK CO.,
339 U.S. 725 (1950).  THE DEFENSE INTERPOSED WAS THAT THE SUIT WAS
AGAINST THE UNITED STATES AND, THEREFORE, BEYOND THE JURISDICTION OF
THE COURTS, IT NOT HAVING CONSENTED TO BE SUED.  IN 1956 THE DISTRICT
COURT ORDERED THE INJUNCTION ISSUED UNLESS THE GOVERNMENT CONSTRUCTED A
"PHYSICAL SOLUTION" (FN1) WHICH WOULD AFFORD THE LANDOWNERS A SUPPLY OF
WATER SIMULATING THAT OF THE PAST.  RANK V. KRUG, 142 F. SUPP. 1.  THE
COURT OF APPEALS REVERSED AS TO THE UNITED STATES, FINDING THAT IT HAD
NOT CONSENTED TO BE SUED.  HOWEVER, AS TO THE OFFICIALS, IT AFFIRMED ON
THE GROUND THAT THE UNITED STATES HAD NEITHER ACQUIRED NOR TAKEN THE
CLAIMED WATER RIGHTS AND THAT THE OFFICIALS WERE THEREFORE ACTING
BEYOND THEIR STATUTORY AUTHORITY.  CALIFORNIA V. RANK, 293 F.2D 340 AND
307 F.2D 96.  NO. 31 IS THE PETITION OF THE LOCAL RECLAMATION BUREAU
OFFICIALS, AND NO. 115 IS THAT OF THE IRRIGATION AND UTILITY
DISTRICTS.  BOTH CASES PROCEED FROM THE SAME COURT OF APPEALS OPINION. 
THE IMPORTANCE OF THE QUESTION TO THE OPERATION OF THIS VAST FEDERAL
RECLAMATION PROJECT LED US TO GRANT CERTIORARI.  369 U.S. 836 AND 370
U.S. 936.  WE HAVE CONCLUDED THAT THE COURT OF APPEALS WAS CORRECT IN
DISMISSING THE SUIT AGAINST THE UNITED STATES; THAT THE SUIT AGAINST
THE PETITIONING LOCAL OFFICIALS OF THE RECLAMATION BUREAU IS IN FACT
AGAINST THE UNITED STATES AND THEY MUST BE DISMISSED THEREFROM; THAT
THE UNITED STATES EITHER OWNED OR HAS ACQUIRED OR TAKEN THE WATER
RIGHTS INVOLVED IN THE SUIT AND THAT ANY RELIEF TO WHICH THE
RESPONDENTS MAY BE ENTITLED BY REASON OF SUCH TAKING IS BY SUIT AGAINST
THE UNITED STATES UNDER THE TUCKER ACT, 28 U.S.C. SEC. 1346.  THESE
CONCLUSIONS LEAD TO A REVERSAL OF THE JUDGMENT INSOFAR AS SUIT WAS
PERMITTED AGAINST THE UNITED STATES THROUGH BUREAU OFFICIALS. 

   I. ASPECTS OF THE CENTRAL VALLEY RECLAMATION

                     PROJECT INVOLVED. 

THE PROJECT WAS AUTHORIZED BY THE CONGRESS AND UNDERTAKEN BY THE
BUREAU OF RECLAMATION OF THE DEPARTMENT OF THE INTERIOR PURSUANT TO THE
ACT OF AUGUST 26, 1937, 50 STAT. 844, 850.  IT IS GENERALLY DESCRIBED
IN SUFFICIENT DETAIL FOR OUR PURPOSES IN UNITED STATES V. GERLACH LIVE
STOCK CO., SUPRA, AND IVANHOE IRRIGATION DISTRICT V. MCCRACKEN, 357
U.S. 275 (1958).  SEE GRAHAM, THE CENTRAL VALLEY PROJECT:  RESOURCE
DEVELOPMENT OF A NATURAL BASIN, 38 CAL. L. REV. 588, 591 (1950), FOR A
DESCRIPTION AND CITATION OF FEDERAL AUTHORIZATIONS. 

THE GRAND DESIGN OF THE PROJECT WAS TO CONSERVE AND PUT TO MAXIMUM
BENEFICIAL USE THE WATERS OF THE CENTRAL VALLEY OF CALIFORNIA, (FN2)
COMPRISING A THIRD OF THE STATE'S TERRITORY, AND THE BOWL OF WHICH
STARTS IN THE NORTHER PART OF THE STATE AND, AVERAGING MORE THAN 100
MILES IN WIDTH, EXTENDS SOUTHWARD SOME 450 MILES.  THE NORTHERN PORTION
OF THE BOWL IS THE SACRAMENTO VALLEY, CONTAINING THE SACRAMENTO RIVER,
AND THE SOUTHERN PORTION IS THE SAN JOAQUIN VALLEY, CONTAINING THE SAN
JOAQUIN RIVER.  THE SACRAMENTO RIVER RISES IN THE EXTREME NORTH, RUNS
SOUTHERLY TO THE CITY OF SACRAMENTO AND THEN ON INTO SAN FRANCISCO BAY
AND THE PACIFIC OCEAN.  THE SAN JOAQUIN RIVER RISES IN THE SIERRA
NEVADA NORTHEAST OF FRESNO, RUNS WESTERLY TO MENDOTA AND THEN
NORTHWESTERLY TO THE SACRAMENTO-SAN JOAQUIN DELTA WHERE IT JOINS THE
SACRAMENTO RIVER.  THE SACRAMENTO RIVER, BECAUSE OF HEAVIER RAINFALL IN
ITS WATERSHED, HAS SURPLUS WATER, BUT ITS VALLEY HAS LITTLE AVAILABLE
TILLABLE SOIL, WHILE THE SAN JOAQUIN IS IN THE CONTRARY SITUATION.  AN
IMAGINATIVE ENGINEERING FEAT HAS TRANSPORTED SOME OF THE SACRAMENTO
SURPLUS TO THE SAN JOAQUIN SCARCITY AND PERMITTED THE WATERS OF THE
LATTER RIVER TO BE DIVERTED TO NEW AREAS FOR IRRIGATION AND OTHER
NEEDS.  THIS TRANSPORTATION OF SACRAMENTO WATER IS ACCOMPLISHED BY
PUMPING WATER FROM THE SACRAMENTO-SAN JOAQUIN DELTA INTO THE DELTA
MENDOTA CANAL, A LIFT OF SOME 200 FEET.  THE WATER THEN FLOWS BY
GRAVITY THROUGH THIS CANAL ALONG THE WEST SIDE OF THE SAN JOAQUIN
VALLEY SOUTHERLY TO MENDOTA, SOME 117 MILES, WHERE IT IS DISCHARGED
INTO THE SAN JOAQUIN RIVER.  THE WATERS OF THE SAN JOAQUIN RIVER ARE
IMPOUNDED BY A DAM CONSTRUCTED AT FRIANT, APPROXIMATELY 60 MILES
UPSTREAM FROM MENDOTA.  FRIANT DAM STORES THE WATER IN MILLERTON LAKE
FROM WHICH IT IS DIVERTED BY THE MADERA CANAL ON THE NORTH TO MADERA
COUNTY AND THE FRIANT-KERN CANAL ON THE SOUTH TO THE VICINITY OF
BAKERSFIELD FOR USE IN THOSE AREAS FOR IRRIGATION AND OTHER PUBLIC
PURPOSES. 

THE RIVER BED AT FRIANT IS AT A LEVEL APPROXIMATELY 240 FEET HIGHER
THAN AT MENDOTA, 142 F. SUPP. 173, WHICH PREVENTS THE SACRAMENTO WATER
FROM BEING CARRIED FURTHER UPSTREAM AND REPLENISHING THE SAN JOAQUIN IN
THE 60-MILE AREA BETWEEN MENDOTA AND FRIANT DAM, THEREBY FURNISHING
SACRAMENTO RIVER WATER FOR THE ENTIRE LENGTH OF THE SAN JOAQUIN BELOW
FRIANT DAM.  THIS 60-MILE STRETCH OF THE SAN JOAQUIN - AND MORE
PARTICULARLY THAT BETWEEN FRIANT DAM AND GRAVELLY FORD, 37 MILES
DOWNSTREAM - IS THE APPROXIMATE AREA INVOLVED IN THIS LITIGATION.  IT
HAS BEEN THE SUBJECT OF COOPERATIVE STUDIES BY THE STATE, LOCAL, AND
FEDERAL GOVERNMENTS FOR MANY YEARS.  INDEED THE INITIAL PLANNING OF THE
PROJECT RECOGNIZED, AS INDICATED BY THE ENGINEERING STUDIES INCLUDED IN
THE PLAN, THAT THE WATER FLOW ON THE SAN JOAQUIN BETWEEN FRIANT DAM AND
MENDOTA WOULD BE SEVERELY DIMINISHED.  SEE 18 OP. CAL. ATTY. GEN. 31,
33-34 (1951).  ALL OF THE PARTIES RECOGNIZED THE EXISTENCE OF WATER
RIGHTS IN THE AREA AND THE NECESSITY TO ACCOMMODATE OR EXTINGUISH
THEM.  REPORT NO. 3, CALIF. WATER PROJECT AUTHORITY, DEFINITION OF
RIGHTS TO THE WATERS OF THE SAN JOAQUIN VALLEY, 1-2 (1936).  THE
PRINCIPAL ALTERNATIVE, AS SHOWN BY THE REPORTS OF THE UNITED STATES
RECLAMATION BUREAU TO THE CONGRESS AND THE SUBSEQUENT APPROPRIATIONS OF
THE CONGRESS, WAS TO PURCHASE OR PAY FOR INFRINGEMENT OF THESE RIGHTS. 
AS EARLY AS 1939 THE GOVERNMENT ENTERED INTO NEGOTIATIONS ULTIMATELY
CULMINATING IN THE PURCHASE OF WATER RIGHTS OR AGREEMENTS FOR
SUBSTITUTE DIVERSIONS OR PERIODIC RELEASES OF WATER FROM FRIANT DAM
INTO THE SAN JOAQUIN RIVER.  GRAHAM, THE CENTRAL VALLEY PROJECT:
RESOURCE DEVELOPMENT OF A NATURAL BASIN, SUPRA.  AS OF 1952 THE UNITED
STATES HAD ENTERED INTO 215 CONTRACTS OF THIS NATURE INVOLVING ALMOST
12,000 ACRES, OF WHICH CONTRACTS SOME 100 REQUIRE THE UNITED STATES TO
MAINTAIN A LIVE STREAM OF WATER IN THE RIVER. 

HOWEVER, AGREEMENTS COULD NOT BE REACHED WITH SOME OF THE CLAIMANTS
ALONG THIS REACH OF THE RIVER, AND THIS SUIT RESULTED. 

                        II.  HISTORY OF THE LITIGATION. 

THE SUIT WAS FILED IN 1947 AND HAS BEEN BOTH COSTLY AND PROTRACTED. 
(FN3)  IT INVOLVES SOME 325,000 ACRES OF LAND INCLUDING A PORTION OF
THE CITY OF FRESNO.  SEE MAP IN 142 F. SUPP., AT 40.  ORIGINALLY FILED
IN THE SUPERIOR COURT OF CALIFORNIA, IT SOUGHT TO ENJOIN LOCAL
OFFICIALS OF THE UNITED STATES RECLAMATION BUREAU FROM STORING OR
DIVERTING WATER TO THE SAN JOAQUIN AT FRIANT DAM OR, IN THE
ALTERNATIVE, TO OBTAIN A DECREE OF A PHYSICAL SOLUTION OF WATER
RIGHTS.  THE ACTION WAS REMOVED TO THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF CALIFORNIA.  THE NAMED PLAINTIFFS CLAIMED TO
REPRESENT A CLASS OF OWNERS OF RIPARIAN AS WELL AS OTHER TYPES OF WATER
RIGHTS.  IN ADDITION TO THE LOCAL OFFICIALS OF THE RECLAMATION BUREAU
TWO OF THE IRRIGATION DISTRICTS RECEIVING DIVERTED WATER FROM MILLERTON
LAKE WERE ORIGINALLY MADE DEFENDANTS AND LATER THE OTHER IRRIGATION AND
ULTILITY DISTRICT DEFENDANTS WERE JOINED. 

THE COMPLAINT CHALLENGED THE CONSTITUTIONAL AUTHORITY OF THE UNITED
STATES TO OPERATE THE PROJECT.   A THREE-JUDGE COURT WAS IMPANELED
PURSUANT TO 28 U.S.C. SEC. 2282, AND IT DECIDED THIS ISSUE PRESENTED NO
SUBSTANTIAL CONSTITUTIONAL QUESTION.  RANK V. KRUG, 90 F. SUPP. 773
(D.C.S.D. CAL. 1950).  THIS LEFT UNDECIDED THE QUESTION OF WHETHER THE
SECRETARY OF THE INTERIOR AND BUREAU OF RECLAMATION OFFICIALS HAD
STATUTORY AUTHORITY TO ACQUIRE THE WATER RIGHTS INVOLVED.  THE ISSUE
REMAINED DORMANT UNTIL THE DELTA-MENDOTA CANAL WAS COMPLETED IN 1951,
142 F. SUPP., AT 45, AND THE GOVERNMENT BEGAN TO REDUCE THE FLOW OF
WATER THROUGH FRIANT DAM.  BY CONSENT, TEMPORARY RESTRAINING ORDERS
WERE ENTERED CONTROLLING THE RELEASES COVERING THE YEARS 1951, 1952,
AND PART OF 1953.  IN JUNE OF THE LATTER YEAR THE UNITED STATES
WITHDREW ITS CONSENT WITH THE APPROVAL OF THE COURT OF APPEALS, UNITED
STATES V. UNITED STATES DISTRICT COURT, 206 F.2D 303.  THE DISTRICT
COURT THEN ORDERED THE UNITED STATES JOINED AS A PARTY ON THE BASIS OF
THE MCCARRAN AMENDMENT, ACT OF JULY 10, 1952, 66 STAT. 560, 43 U.S.C.
SEC. 666, INFRA, N. 5.  FRIANT DAM HAS, HOWEVER, BEEN OPERATED BY THE
UNITED STATES WITHOUT JUDICIAL INTERFERENCE SINCE JUNE 30, 1953. 

THE DISTRICT COURT ANNOUNCED ITS OPINION IN THE CASE ON FEBRUARY 7,
1956, 142 F. SUPP.  1, AND THE JUDGMENT WAS ENTERED THE NEXT YEAR.  IT
DECLARED THE WATER RIGHTS OF ALL OF THE CLAIMANTS, THE MEMBERS OF THE
CLASS THEY CLAIMED TO REPRESENT AND THE INTERVENORS, TRANQUILITY
IRRIGATION DISTRICT AND THE CITY OF FRESNO, AS AGAINST THE UNITED
STATES, THE RECLAMATION BUREAU OFFICERS AND THE DISTRICTS.  IT DID NOT
GRANT RELIEF AS BETWEEN INDIVIDUAL CLAIMANTS OF WATER RIGHTS OR
ADJUDICATE THE PRIORITY OF THESE RIGHTS AMONG THEM.  142 F. SUPP., AT
36.  THE JUDGMENT DECLARED THAT THE CLAIMANTS: 

"HAVE BEEN, NOW ARE, AND WILL BE ENTITLED TO THE FULL NATURAL FLOW OF
THE SAN JOAQUIN RIVER PAST FRIANT AT ALL TIMES  ...  UNLESS AND UNTIL
THE PHYSICAL SOLUTION HEREINELSEWHERE DESCRIBED IS ERECTED AND
CONSTRUCTED (BY THE DEFENDANTS) WITHIN A REASONABLE TIME, AND
THEREAFTER OPERATED AS HEREINELSEWHERE SET FORTH."  TRANSCRIPT OF
RECORD, VOL. III, P. 993. 

THE PHYSICAL SOLUTION WAS A SERIES OF 10 SMALL DAMS TO BE BUILT AT
THE EXPENSE OF THE UNITED STATES ALONG THE STRETCH OF RIVER INVOLVED
FOR THE PURPOSE OF KEEPING THE WATER AT A LEVEL "EQUIVALENT" TO THE
NATURAL FLOW, 142 F. SUPP., AT 166, OR TO SIMULATE IT AT A FLOW OF
2,000 FEET PER SECOND.  142 F. SUPP., AT 169. 

IN SUMMARY, THE COURT HELD THAT THE UNITED STATES WAS A PROPER PARTY
UNDER THE MCCARRAN AMENDMENT; THAT THE CLAIMANTS HAD VESTED RIGHTS TO
THE FULL NATURAL FLOW OF THE RIVER SUPERIOR TO ANY RIGHTS OF THE UNITED
STATES OR OTHER DEFENDANTS; THAT THE OPERATION OF FRIANT DAM DOES NOT
PERMIT SUFFICIENT WATER TO PASS DOWN THE RIVER TO SATISFY THESE RIGHTS;
THAT CONGRESS HAS NOT AUTHORIZED THE TAKING OF THESE RIGHTS BY PHYSICAL
SEIZURE BUT ONLY BY EMINENT DOMAIN EXERCISED THROUGH JUDICIAL
PROCEEDINGS; THAT AS A CONSEQUENCE THE IMPOUNDING AT FRIANT DAM
CONSTITUTES AN UNAUTHORIZED AND UNLAWFUL INVASION OF RIGHTS FOR WHICH
DAMAGES ARE NOT ADEQUATE RECOMPENSE; THAT THIS REQUIRES ALL OF THE
DEFENDANTS, INCLUDING THE UNITED STATES, TO BE ENJOINED FROM STORING OR
DIVERTING OR OTHERWISE IMPEDING THE FULL NATURAL FLOW OF THE SAN
JOAQUIN AT FRIANT DAM UNLESS WITHIN A REASONABLE TIME AND AT ITS OWN
EXPENSE THE UNITED STATES, OR THE DISTRICTS, BUILD THE DAMS AFORESAID
AND PUT THEM INTO OPERATION; THAT THE UNITED STATES IS SUBJECT TO THE
CALIFORNIA COUNTY OF ORIGIN AND WATERSHED OF ORIGIN STATUTES, CALIF.
WATER CODE SEC. 10505, AND SECS.  11460-11463, AND MUST FIRST SATISFY
AT THE SAME CHARGE AS MADE FOR AGRICULTURAL WATER SERVICE THE FULL
NEEDS OF THE CITY OF FRESNO AND TRANQUILITY IRRIGATION DISTRICT BEFORE
DIVERTING SAN JOAQUIN WATER TO OTHER AREAS; AND FINALLY THAT THE UNITED
STATES IS ALSO SUBJECT TO CALIF. WATER CODE SECS. 106 AND 106.5 AS TO
DOMESTIC-USE WATER PRIORITY AND THE POWER OF MUNICIPALITIES TO ACQUIRE
AND HOLD WATER RIGHTS.  (FN4) 

THE COURT OF APPEALS REVERSED AS TO THE JOINDER OF THE UNITED STATES,
HOLDING THAT IT COULD NOT BE MADE A PARTY WITHOUT ITS CONSENT.  IT
LIKEWISE FOUND THAT THE UNITED STATES WAS AUTHORIZED TO ACQUIRE, EITHER
BY PHYSICAL SEIZURE OR OTHERWISE, SUCH OF THE RIGHTS OF THE CLAIMANTS
AS IT NEEDED TO OPERATE THE PROJECT AND THAT THIS POWER COULD NOT BE
RESTRICTED BY STATE LAW.  HOWEVER, IT FOUND THAT NO SUCH AUTHORIZED
SEIZURE HAD OCCURRED BECAUSE THE GOVERNMENT HAD NOT SUFFICIENTLY
IDENTIFIED WHAT RIGHTS IT WAS SEIZING, AND BECAUSE OF THIS EQUIVOCATION
OF THE FEDERAL OFFICIALS, THERE WAS A TRESPASS RATHER THAN A TAKING. 
IT CONCLUDED, THEREFORE, THAT THE PETITIONER RECLAMATION BUREAU
OFFICIALS HAD ACTED BEYOND THEIR STATUTORY AUTHORITY AND AFFIRMED THE
INJUNCTIVE FEATURES OF THE JUDGMENT.  ON REHEARING, THE INJUNCTION WAS
MODIFIED TO MAKE IT INAPPLICABLE TO THE PETITIONER DISTRICTS IN NO. 115
BUT THE COURT REFUSED TO DISMISS AS TO THEM. 
III.  THE UNITED STATES AS A PARTY. 

WE GO DIRECTLY TO THE QUESTION OF JOINDER OF THE UNITED STATES AS A
PARTY.  WE AGREE WITH THE COURT OF APPEALS ON THIS ISSUE AND THEREFORE
DO NOT CONSIDER THE CONTENTION AT LENGTH.  IT IS SUFFICIENT TO SAY THAT
THE PROVISION OF THE MCCARRAN AMENDMENT, 66 STAT. 560, 43 U.S.C. SEC.
666, (FN5) RELIED UPON BY RESPONDENTS AND PROVIDING THAT THE UNITED
STATES MAY BE JOINED IN SUITS "FOR THE ADJUDICATION OF RIGHTS TO THE
USE OF WATER OF A RIVER SYSTEM OR OTHER SOURCE," IS NOT APPLICABLE
HERE.  RATHER THAN A CASE INVOLVING A GENERAL ADJUDICATION OF "ALL OF
THE RIGHTS OF VARIOUS OWNERS ON A GIVEN STREAM," S. REP. NO. 755, 82D
CONG., 1ST SESS. 9 (1951), IT IS A PRIVATE SUIT TO DETERMINE WATER
RIGHTS SOLELY BETWEEN THE RESPONDENTS AND THE UNITED STATES AND THE
LOCAL RECLAMATION BUREAU OFFICIALS.  IN ADDITION TO THE FACT THAT ALL
OF THE CLAIMANTS TO WATER RIGHTS ALONG THE RIVER ARE NOT MADE PARTIES,
NO RELIEF IS EITHER ASKED OR GRANTED AS BETWEEN CLAIMANTS, NOR ARE
PRIORITIES SOUGHT TO BE ESTABLISHED AS TO THE APPROPRIATIVE AND
PRESCRIPTIVE RIGHTS ASSERTED.  BUT BECAUSE OF THE PRESENCE OF LOCAL
RECLAMATION BUREAU OFFICIALS AND THE NATURE OF THE RELIEF GRANTED
AGAINST THEM, THE FAILURE OF THE ACTION AGAINST THE UNITED STATES DOES
NOT END THE MATTER.  WE MUST YET DEAL WITH THE HOLDING OF THE COURT OF
APPEALS THAT THE SUIT AGAINST THESE OFFICIALS IS NOT ONE AGAINST THE
UNITED STATES. 

                 IV.  RELIEF GRANTED AGAINST FEDERAL OFFICERS. 

THE COURT OF APPEALS CORRECTLY HELD THAT THE UNITED STATES WAS
EMPOWERED TO ACQUIRE THE WATER RIGHTS OF RESPONDENTS BY PHYSICAL
SEIZURE.  AS EARLY AS 1937, BY THE RIVERS AND HARBORS ACT, 50 STAT.
844, 850, THE CONGRESS HAD PROVIDED THAT THE SECRETARY OF THE INTERIOR
"MAY ACQUIRE BY PROCEEDINGS IN EMINENT DOMAIN, OR OTHERWISE, ALL LANDS,
RIGHTS-OF-WAY, WATER RIGHTS, AND OTHER PROPERTY NECESSARY FOR SAID
PURPOSES  ...  ."  LIKEWISE, IN UNITED STATES V. GERLACH LIVE STOCK
CO., SUPRA, THIS COURT IMPLICITLY RECOGNIZED THAT SUCH RIGHTS WERE
SUBJECT TO SEIZURE WHEN WE HELD THAT GERLACH AND OTHERS WERE ENTITLED
TO COMPENSATION THEREFOR.  THE QUESTION WAS SPECIFICALLY SETTLED IN
IVANHOE IRRIGATION DISTRICT V. MCCRACKEN, SUPRA, WHERE WE SAID THAT
SUCH RIGHTS COULD BE ACQUIRED BY THE PAYMENT OF COMPENSATION "EITHER
THROUGH CONDEMNATION OR, IF ALREADY TAKEN, THROUGH ACTION OF THE OWNERS
IN THE COURTS."  357 U.S., AT 291.  HOWEVER, THE COURT OF APPEALS, IN
EXAMINING THE EXTENT OF THE TAKING HERE, CONCLUDED THAT RATHER THAN AN
AUTHORIZED TAKING OF WATER RIGHTS, THE ACTION OF THE RECLAMATION BUREAU
OFFICIALS CONSTITUTED AN UNAUTHORIZED TRESPASS.  THE COURT OBSERVED
THAT THE SAN JOAQUIN "WILL NOT BE DRIED UP" BELOW FRIANT BECAUSE THE
GOVERNMENT HAS CONTRACTED WITH OTHER WATER RIGHTS OWNERS TO MAINTAIN "A
LIVE STREAM," AND AS THE FLOW OF WATER VARIES FROM DAY TO DAY THE
RESPONDENTS DO NOT NOW AND NEVER WILL KNOW WHAT PART OF THEIR CLAIMED
WATER RIGHTS THE GOVERNMENT HAS TAKEN OR WILL TAKE: 

"A CASUAL DAY BY DAY TAKING UNDER THESE CIRCUMSTANCES CONSTITUTES DAY
TO DAY TRESPASS UPON THE WATER RIGHT  ...  .  THE CLOUD CAST
PROSPECTIVELY ON THE WATER RIGHT BY THE ASSERTION OF A POWER TO TAKE
CREATES A PRESENT INJURY ABOVE WHAT HAS BEEN SUFFERED BY THE
INTERFERENCE ITSELF - A PRESENT LOSS IN PROPERTY VALUE WHICH CANNOT BE
COMPENSATED UNTIL IT CAN BE MEASURED."  293 F.2D, AT 358. 

THE COURT, THEREFORE, PERMITTED THE SUIT AGAINST THE PETITIONING
RECLAMATION BUREAU OFFICERS AS ONE IN TRESPASS, WHICH LED IT TO AFFIRM,
WITH MODIFICATION, THE INJUNCTIVE RELIEF GRANTED BY THE DISTRICT
COURT. 

RATHER THAN A TRESPASS, WE CONCLUDE THAT THERE WAS, UNDER
RESPONDENTS' ALLEGATIONS, A PARTIAL TAKING OF RESPONDENTS' CLAIMED
RIGHTS.  WE BELIEVE THAT THE COURT OF APPEALS INCORRECTLY APPLIED THE
PRINCIPLE OF LARSON V. DOMESTIC & FOREIGN CORP., 337 U.S. 682 (1949),
AND OTHER CASES IN THE FIELD OF SOVEREIGN IMMUNITY.  THE GENERAL RULE
IS THAT A SUIT IS AGAINST THE SOVEREIGN IF "THE JUDGMENT SOUGHT WOULD
EXPEND ITSELF ON THE PUBLIC TREASURY OR DOMAIN, OR INTERFERE WITH THE
PUBLIC ADMINISTRATION,' LAND V. DOLLAR, 330 U.S. 731, 738 (1947), OR IF
THE EFFECT OF THE JUDGMENT WOULD BE "TO RESTRAIN THE GOVERNMENT FROM
ACTING, OR TO COMPEL IT TO ACT."  LARSON V. DOMESTIC & FOREIGN CORP.,
SUPRA, AT 704; EX PARTE NEW YORK, 256 U.S. 490, 502 (1921).  THE DECREE
HERE ENJOINS THE FEDERAL OFFICIALS FROM "IMPOUNDING, OR DIVERTING, OR
STORING FOR DIVERSION, OR OTHERWISE IMPEDING OR OBSTRUCTING THE FULL
NATURAL FLOW OF THE SAN JOAQUIN RIVER  ...  ."  TRANSCRIPT OF RECORD,
VOL. III, P. 1021.  AS THE COURT OF APPEALS FOUND, THE PROJECT "COULD
NOT OPERATE WITHOUT IMPAIRING, TO SOME DEGREE, THE FULL NATURAL FLOW OF
THE RIVER."  EXPERIENCE OF OVER A DECADE ALONG THE STRETCH OF THE SAN
JOAQUIN INVOLVED HERE INDICATES CLEARLY THAT THE IMPAIRMENT WAS MOST
SUBSTANTIAL - ALMOST THREE-FOURTHS OF THE NATURAL FLOW OF THE RIVER. 
TO REQUIRE THE FULL NATURAL FLOW OF THE RIVER TO GO THROUGH THE DAM
WOULD FORCE THE ABANDONMENT OF THIS PORTION OF A PROJECT WHICH HAS NOT
ONLY BEEN FULLY AUTHORIZED BY THE CONGRESS BUT PAID FOR THROUGH ITS
CONTINUING APPROPRIATIONS.  MOREOVER, IT WOULD PREVENT THE FULFILLMENT
OF THE CONTRACTS MADE BY THE UNITED STATES WITH THE WATER AND UTILITY
DISTRICTS, WHICH ARE PETITIONING IN NO. 115.  THE GOVERNMENT WOULD,
INDEED, BE "STOPPED IN ITS TRACKS  ...  ."  LARSON V. DOMESTIC &
FOREIGN CORP., SUPRA, AT 704. 

THE PHYSICAL SOLUTION HAS NO LESS DIRECT EFFECT.  THE SECRETARY OF
THE INTERIOR, THE PRESIDENT AND THE CONGRESS HAVE AUTHORIZED THE
PROJECT AS NOW CONSTRUCTED AND OPERATED.  ITS PLANS DO NOT INCLUDE THE
10 ADDITIONAL DAMS REQUIRED BY THE PHYSICAL SOLUTION TO BE BUILT AT
GOVERNMENT EXPENSE.  THE JUDGMENT, THEREFORE, WOULD NOT ONLY "INTERFERE
WITH THE PUBLIC ADMINISTRATION" BUT ALSO "EXPEND ITSELF ON THE PUBLIC
TREASURY  ...  ."  LAND V. DOLLAR, SUPRA, AT 738.  MOREOVER, THE DECREE
WOULD REQUIRE THE UNITED STATES - CONTRARY TO THE MANDATE OF THE
CONGRESS - TO DISPOSE OF VALUABLE IRRIGATION WATER AND DEPRIVE IT OF
THE FULL USE AND CONTROL OF ITS RECLAMATION FACILITIES.  IT IS
THEREFORE READILY APPARENT THAT THE RELIEF GRANTED OPERATES AGAINST THE
UNITED STATES. 

NOR DO WE BELIEVE THAT THE ACTION OF THE RECLAMATION BUREAU OFFICIALS
FALLS WITHIN EITHER OF THE RECOGNIZED EXCEPTIONS TO THE ABOVE GENERAL
RULE AS REAFFIRMED ONLY LAST TERM.  MALONE V. BOWDOIN, 369 U.S. 643. 
SEE LARSON V. DOMESTIC & FOREIGN CORP., SUPRA; SANTA FE PAC.  R. CO. V.
FALL, 259 U.S. 197, 199 (1922); SCRANTON V. WHEELER, 179 U.S. 141, 152
153 (1900).  THOSE EXCEPTIONS ARE (1) ACTION BY OFFICERS BEYOND THEIR
STATUTORY POWERS AND (2) EVEN THOUGH WITHIN THE SCOPE OF THEIR
AUTHORITY, THE POWERS THEMSELVES OR THE MANNER IN WHICH THEY ARE
EXERCISED ARE CONSTITUTIONALLY VOID.  MALONE V. BOWDOIN, SUPRA, AT
647.  IN EITHER OF SUCH CASES THE OFFICER'S ACTION "CAN BE MADE THE
BASIS OF A SUIT FOR SPECIFIC RELIEF AGAINST THE OFFICER AS AN
INDIVIDUAL  ...  .'  IBID.  BUT THE FACT THAT THE COURT OF APPEALS
CHARACTERIZED THE ACTION OF THE OFFICERS AS A "TRESPASS" DOES NOT AT
ALL ESTABLISH THAT IT WAS EITHER UNCONSTITUTIONAL OR UNAUTHORIZED.  AS
THIS COURT SAID IN LARSON, SUPRA, AT 693: 

"THE MERE ALLEGATION THAT THE OFFICER, ACTING OFFICIALLY, WRONGFULLY
HOLDS PROPERTY TO WHICH THE PLAINTIFF HAS TITLE DOES NOT MEET THE
REQUIREMENT THAT IT MUST ALSO APPEAR THAT THE ACTION TO BE RESTRAINED
OR DIRECTED IS NOT ACTION OF THE SOVEREIGN.  TRUE, IT ESTABLISHES A
WRONG TO THE PLAINTIFF.  BUT IT DOES NOT ESTABLISH THAT THE OFFICER, IN
COMMITTING THAT WRONG, IS NOT EXERCISING THE POWERS DELEGATED TO HIM BY
THE SOVEREIGN." 

AND THE COURT ADDED: 

"THE ACTION OF AN OFFICER OF THE SOVEREIGN (BE IT HOLDING, TAKING OR
OTHERWISE LEGALLY AFFECTING THE PLAINTIFF'S PROPERTY) CAN BE REGARDED
AS SO 'ILLEGAL' AS TO PERMIT A SUIT FOR SPECIFIC RELIEF AGAINST THE
OFFICER AS AN INDIVIDUAL ONLY IF IT IS NOT WITHIN THE OFFICER'S
STATUTORY POWERS OR, IF WITHIN THOSE POWERS, ONLY IF THE POWERS, OR
THEIR EXERCISE IN THE PARTICULAR CASE, ARE CONSTITUTIONALLY VOID." 
ID., AT 701-702. 

SINCE THE GOVERNMENT, THROUGH ITS OFFICERS HERE, HAD THE POWER, UNDER
AUTHORIZATION OF CONGRESS, TO SEIZE THE PROPERTY OF THE RESPONDENTS, AS
HELD BY THE COURT OF APPEALS AND RECOGNIZED BY SEVERAL CASES IN THIS
COURT, AND THIS POWER OF SEIZURE WAS CONSTITUTIONALLY PERMISSIBLE, AS
WE HELD IN IVANHOE, SUPRA, THERE CAN BE NO QUESTION THAT THIS CASE
COMES UNDER THE RULE OF LARSON AND MALONE, SUPRA.  THE POWER TO SEIZE
WHICH WAS GRANTED HERE HAD NO LIMITATION PLACED UPON IT BY THE
CONGRESS, NOR DID THE COURT OF APPEALS BOTTOM ITS CONCLUSION ON A
FINDING OF ANY LIMITATION.  HAVING PLENARY POWER TO SEIZE THE WHOLE OF
RESPONDENTS' RIGHTS IN CARRYING OUT THE CONGRESSIONAL MANDATE, THE
FEDERAL OFFICERS A FORTIORI HAD AUTHORITY TO SEIZE LESS.  IT FOLLOWS
THAT IF ANY PART OF RESPONDENTS' CLAIMED WATER RIGHTS WERE INVADED IT
AMOUNTED TO AN INTERFERENCE THEREWITH AND A TAKING THEREOF - NOT A
TRESPASS. 

WE FIND NO SUBSTANCE TO THE CONTENTION THAT RESPONDENTS WERE WITHOUT
KNOWLEDGE OF THE INTERFERENCE OR PARTIAL TAKING.  NOR CAN WE ACCEPT THE
VIEW THAT THE ABSENCE OF SPECIFICITY AS TO THE AMOUNT OF WATER TO BE
TAKEN PREVENTS THE ASSESSMENT OF DAMAGES IN THIS CASE.  FROM THE VERY
BEGINNING IT WAS RECOGNIZED THAT THE OPERATION OF FRIANT DAM AND ITS
FACILITIES WOULD ENTAIL A TAKING OF WATER RIGHTS BELOW THE DAM. 
INDEED, IT WAS OBVIOUS FROM THE EXPRESSED PURPOSE OF THE CONSTRUCTION
OF THE DAM - TO STORE AND DIVERT TO OTHER AREAS THE WATERS OF THE SAN
JOAQUIN - AND THE INTENTION OF THE GOVERNMENT TO PURCHASE WATER RIGHTS
ALONG THE RIVER.  (FN6)  PURSUANT TO THIS ANNOUNCED INTENTION THE
GOVERNMENT DID IN FACT ENTER INTO NUMEROUS CONTRACTS FOR WATER RIGHTS,
AS WE HAVE PREVIOUSLY NOTED.  WHILE IT IS TRUE, AS THE COURT OF APPEALS
OBSERVED, THAT THE GOVERNMENT DID NOT ANNOUNCE THAT IT WAS TAKING WATER
RIGHTS TO A SPECIFIED NUMBER OF "GALLONS" OR, FOR THAT MATTER, "INCHES"
OF WATER, SEE 293 F.2D 340, 357-358, WE DO NOT THINK THIS QUANTITATIVE
UNCERTAINTY PRECLUDES ASCERTAINMENT OF THE VALUE OF THE TAKING.  ON
THIS POINT WE CONCLUDE THAT THE COURT OF APPEALS WAS IN ERROR.  WE FIND
NO UNCERTAINTY IN THE TAKING. 

IT IS LIKELY THAT AN ELEMENT OF UNCERTAINTY MAY HAVE BEEN DRAWN BY
THE COURT OF APPEALS FROM THE SECRETARY OF THE INTERIOR'S STATEMENT IN
A LETTER THAT THE OPERATION OF FRIANT DAM "IS AN ADMINISTRATIVE ONE,
VOLUNTARILY ASSUMED AND VOLUNTARILY TO BE EXECUTED."  293 F.2D 340,
356, N. 8.  THIS ALONE MIGHT PRESENT A PICTURE OF A SPILLWAY BEING
OPENED AND CLOSED AT THE WHIM OF THE SECRETARY.  WE VIEW THIS
STATEMENT, HOWEVER, AS MERELY NOTICE TO THE COURT THAT THE SECRETARY
INTENDED TO OPERATE THE WATER WORKS FAIRLY, BUT SOLELY ON HIS OWN,
WITHOUT COURT INTERFERENCE.  NEITHER HE NOR THE UNITED STATES WAS A
PARTY.  EVEN IF THE STATEMENT DID INTRODUCE AN ELEMENT OF UNCERTAINTY
AS TO WHAT EXACTLY THE SECRETARY MIGHT DO, INJUNCTIVE RELIEF WAS NOT
PROPER.  DESPITE THIS CAVEAT, DAMAGES WERE CLEARLY ASCERTAINABLE (SEE
COLLIER V. MERCED IRRIGATION DISTRICT, 213 CA. 554, 571-572, 2 P.2D
790, 797 (1931), BASED PARTIALLY ON THE SECRETARY'S PRIOR UNEQUIVOCAL
STATEMENT REGARDING HIS PLANS AS TO THE MINIMUM FLOW OF WATER TO BE
RELEASED INTO THE RIVER BELOW THE DAM.  (FN7)  PARENTHETICALLY, WE NOTE
THAT PETITIONERS, IN THEIR BRIEF, AT P. 12, INFORM US THAT "FRIANT DAM
HAS SINCE BEEN OPERATED IN ACCORDANCE WITH THE SECRETARY'S STATED PLAN,
SUBJECT TO ADJUSTMENTS REQUIRED BY WEATHER AND OTHER CONDITIONS." 

DAMAGES IN THIS INSTANCE ARE TO BE MEASURED BY THE DIFFERENCE IN
MARKET VALUE OF THE RESPONDENTS' LAND BEFORE AND AFTER THE INTERFERENCE
OR PARTIAL TAKING.  AS THE SUPREME COURT OF CALIFORNIA SAID IN COLLIER
V. MERCED IRRIGATION DISTRICT, SUPRA, AT 571-572. 

"  ...  THE RIPARIAN RIGHT IS A PART AND PARCEL OF THE LAND IN A
LEGAL SENSE, YET IT IS A USUFRUCTUARY AND INTANGIBLE RIGHT INHERING
THEREIN AND NEITHER A PARTIAL NOR A COMPLETE TAKING PRODUCES A
DISFIGUREMENT OF THE PHYSICAL PROPERTY.  THE ONLY WAY TO MEASURE THE
INJURY DONE BY AN INVASION OF THIS RIGHT IS TO ASCERTAIN THE
DEPRECIATION IN THE MARKET VALUE OF THE PHYSICAL PROPERTY  ...  .
THERE WAS A DISTINCT CONFLICT IN THE EVIDENCE AS TO WHETHER THE LANDS
OF APPELLANT HAD A GREATER OR A LESS MARKET VALUE AFTER THE TAKING BY
RESPONDENT, BUT THERE IS NO QUESTION OF LAW ARISING ON THE EVIDENCE." 

THE RIGHT CLAIMED HERE IS TO THE CONTINUED FLOW OF WATER IN THE SAN
JOAQUIN AND TO ITS USE AS IT FLOWS ALONG THE LANDOWNER'S PROPERTY.  A
SEIZURE OF WATER RIGHTS NEED NOT NECESSARILY BE A PHYSICAL INVASION OF
LAND.  IT MAY OCCUR UPSTREAM, AS HERE.  INTERFERENCE WITH OR PARTIAL
TAKING OF WATER RIGHTS IN THE MANNER IT WAS ACCOMPLISHED HERE MIGHT BE
ANALOGIZED TO INTERFERENCE OR PARTIAL TAKING OF AIR SPACE OVER LAND,
SUCH AS IN OUR RECENT CASE OF GRIGGS V. ALLEGHENY COUNTY, 369 U.S. 84,
89-90 (1962).  SEE UNITED STATES V. CAUSBY, 328 U.S. 256, 261-263, 267
(1946); PORTSMOUTH CO. V. UNITED STATES, 260 U.S. 327, 329 (1922).  SEE
ALSO 1 WIEL, WATER RIGHTS IN THE WESTERN STATES (3D ED. 1911), SEC. 15;
2 NICHOLS, EMINENT DOMAIN (3D ED. 1950), SEC. 6.3.  THEREFORE, WHEN THE
GOVERNMENT ACTED HERE "WITH THE PURPOSE AND EFFECT OF SUBORDINATING"
THE RESPONDENTS' WATER RIGHTS TO THE PROJECT'S USES "WHENEVER IT SAW
FIT," "WITH THE RESULT OF DEPRIVING THE OWNER OF ITS PROFITABLE USE
(THERE WAS) THE IMPOSITION OF SUCH A SERVITUDE (AS) WOULD CONSTITUTE AN
APPROPRIATION OF PROPERTY FOR WHICH COMPENSATION SHOULD BE MADE." 
PEABODY V. UNITED STATES, 231 U.S. 530, 538 (1913); PORTSMOUTH CO. V.
UNITED STATES, SUPRA, AT 329. 

IN AN APPROPRIATE PROCEEDING THERE WOULD BE A DETERMINATION OF NOT
ONLY THE EXTENT OF SUCH A SERVITUDE BUT THE VALUE THEREOF BASED UPON
THE DIFFERENCE BETWEEN THE VALUE OF RESPONDENTS' PROPERTY BEFORE AND
AFTER THE TAKING.  RATHER THAN A STOPPAGE OF THE GOVERNMENT PROJECT,
THIS IS THE AVENUE OF REDRESS OPEN TO RESPONDENTS.  SINCE WE HAVE SET
ASIDE THE JUDGMENTS OF BOTH THE COURT OF APPEALS AND THE DISTRICT
COURT, IT IS APPROPRIATE THAT WE MAKE CLEAR THAT WE DO NOT IN ANY WAY
PASS UPON OR INDICATE ANY VIEW REGARDING THE VALIDITY OF RESPONDENTS'
WATER RIGHT CLAIMS.                          V. THE IRRIGATION AND
UTILITY DISTRICTS. 

SIMILAR DISPOSITION MUST BE MADE OF NO. 115.  THERE THE PETITIONERS
ARE 14 IRRIGATION AND UTILITY DISTRICTS WHICH HAVE CONTRACTS WITH THE
GOVERNMENT FOR THE USE OF WATER FROM MILLERTON LAKE.  THE COURT OF
APPEALS, AS WE HAVE NOTED, DISSOLVED THE INJUNCTION PREVIOUSLY GRANTED
AGAINST THEM BY THE DISTRICT COURT.  NO OTHER RELIEF HAVING BEEN SOUGHT
AGAINST THE DISTRICTS, IT APPEARS THAT THEY SHOULD HAVE BEEN DISMISSED
FROM THE ACTION.  IN ANY EVENT, IN VIEW OF OUR DISPOSITION OF NO. 31,
DISMISSAL OF THESE PETITIONERS IS NOW IN ORDER. 

THE JUDGMENT AS TO THE DISMISSAL OF THE UNITED STATES IS AFFIRMED; IT
IS REVERSED AS TO THE FAILURE TO DISMISS THE RECLAMATION OFFICIALS AND
THE IRRIGATION AND UTILITY DISTRICTS, AND THE CASES ARE REMANDED TO THE
COURT OF APPEALS WITH DIRECTIONS THAT IT VACATE THE JUDGMENT OF THE
DISTRICT COURT AND REMAND THE CASE WITH INSTRUCTIONS THAT THE SAME BE
DISMISSED.  IT IS SO ORDERED. 

FN1  A PROCEDURE AUTHORIZED BY CALIFORNIA LAW WHEREBY EXISTING RIGHTS
TO THE USE OF WATER ARE PROTECTED AND EXCESS WATERS ARE PUT TO
BENEFICIAL USE. 

FN2  SEE THE FEASIBILITY REPORT OF SECRETARY ICKES TO PRESIDENT
FRANKLIN D. ROOSEVELT, DATED NOVEMBER 26, 1935, AND APPROVED BY THE
PRESIDENT ON DECEMBER 2, 1935, REPRINTED IN 90 F. SUPP. 823-827 AND IN
1 ENGLE, CENTRAL VALLEY PROJECT DOCUMENTS, H.R. DOC. NO. 416, 84TH
CONG., 2D SESS. 562-567 (1956). 

FN3  THE TRIAL, WHICH LASTED MORE THAN 200 DAYS, REQUIRED 30,000
PAGES OF RECORD AND PRODUCED HUNDREDS OF ORDERS.  OPINIONS BELOW ARE
STATE V. RANK, 293 F.2D 340 (C.A. 9TH CIR. 1961); RANK V. (KRUG) UNITED
STATES, 142 F. SUPP. 1 (D.C.S.D. CAL. 1956).  RELATED CASES INVOLVING
INTERMEDIATE ORDERS OF THE DISTRICT COURT ARE RANK V. KRUG, 90 F. SUPP.
773 (D.C.S.D. CAL. 1950); UNITED STATES V. UNITED STATES DISTRICT
COURT, 206 F.2D 303 (C.A. 9TH CIR. 1953); CALIFORNIA V. UNITED STATES
DISTRICT COURT, 213 F.2D 818 (C.A. 9TH CIR. 1954); RANK V. UNITED
STATES, 16 F.R.D. 310 (D.C.S.D. CAL. 1954); CITY OF FRESNO V.
EDMONSTON, 131 F. SUPP. 421 (D.C.S.D. CAL. 1955). 

FN4  THE LAST TWO SECTIONS OF THE JUDGMENT ARE DEALT WITH IN CAUSE
NO. 51, CITY OF FRESNO V. CALIFORNIA, DECIDED TODAY, POST, P. 627. 

FN5  43 U.S.C. SEC. 666: 

"(A)  CONSENT IS GIVEN TO JOIN THE UNITED STATES AS A DEFENDANT IN
ANY SUIT (1) FOR THE ADJUDICATION OF RIGHTS TO THE USE OF WATER OF A
RIVER SYSTEM OR OTHER SOURCE, OR (2) FOR THE ADMINISTRATION OF SUCH
RIGHTS, WHERE IT APPEARS THAT THE UNITED STATES IS THE OWNER OF OR IS
IN THE PROCESS OF ACQUIRING WATER RIGHTS BY APPROPRIATION UNDER STATE
LAW, BY PURCHASE, BY EXCHANGE, OR OTHERWISE, AND THE UNITED STATES IS A
NECESSARY PARTY TO SUCH SUIT.  THE UNITED STATES, WHEN A PARTY TO ANY
SUCH SUIT, SHALL (1) BE DEEMED TO HAVE WAIVED ANY RIGHT TO PLEAD THAT
THE STATE LAWS ARE INAPPLICABLE OR THAT THE UNITED STATES IS NOT
AMENABLE THERETO BY REASON OF ITS SOVEREIGNTY, AND (2) SHALL BE SUBJECT
TO THE JUDGMENTS, ORDERS, AND DECREES OF THE COURT HAVING JURISDICTION,
AND MAY OBTAIN REVIEW THEREOF, IN THE SAME MANNER AND TO THE SAME
EXTENT AS A PRIVATE INDIVIDUAL UNDER LIKE CIRCUMSTANCES:  PROVIDED,
THAT NO JUDGMENT FOR COSTS SHALL BE ENTERED AGAINST THE UNITED STATES
IN ANY SUCH SUIT. 

"(B)  SUMMONS OR OTHER PROCESS IN ANY SUCH SUIT SHALL BE SERVED UPON
THE ATTORNEY GENERAL OR HIS DESIGNATED REPRESENTATIVE. 

"(C)  NOTHING IN THIS SECTION SHALL BE CONSTRUED AS AUTHORIZING THE
JOINDER OF THE UNITED STATES IN ANY SUIT OR CONTROVERSY IN THE SUPREME
COURT OF THE UNITED STATES INVOLVING THE RIGHT OF STATES TO THE USE OF
THE WATER OF ANY INTERSTATE STREAM."  JULY 10, 1952, C. 651, TITLE II,
SEC. 208, 66 STAT. 560. 

FN6  SEE NOTE 2, SUPRA. 

FN7  ON MARCH 30, 1953, IN RESPONSE TO A REQUEST FROM THE DISTRICT
JUDGE THAT THE SECRETARY CLARIFY HIS POSITION, A LETTER WAS WRITTEN BY
THE SECRETARY TO THE ATTORNEY GENERAL EXPRESSING HIS "ADMINISTRATIVE
INTENT WITH RESPECT TO THE OPERATION OF THE CENTRAL VALLEY PROJECT
INSOFAR AS IT RELATES TO THE FRIANT-TO-GRAVELLY FORD REACH OF THE SAN
JOAQUIN RIVER."  THE LETTER SPECIFIED THAT: 

"  ...  THE DEPARTMENT WILL RELEASE FROM FRIANT RESEVOIR INTO THE BED
OF THE RIVER A SUFFICIENT QUANTITY OF WATER (1) TO MEET ALL VALID LEGAL
REQUIREMENTS FOR THE REASONABLE AND BENEFICIAL USE OF WATER, BOTH
SURFACE AND UNDERGROUND, BY REASONABLE METHODS OF DIVERSION AND
REASONABLE METHODS OF USE IN THAT AREA, AND (2) TO PROVIDE, IN ADDITION
THERETO, A CONTINUOUS LIVE STREAM FLOWING AT A RATE OF NOT LESS THAN
FIVE CUBIC FEET PER SECOND AT SPECIFIED CONTROL POINTS THROUGHOUT THE
FRIANT-TO-GRAVELLY FORD AREA, THE LAST ONE TO BE AT A POINT
APPROXIMATELY ONE-HALF MILE BELOW THE HEAD OF THE GRAVELLY FORD
CANAL."  TRANSCRIPT OF RECORD, VOL. VII, P. 388, N. 8. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :















CITY OF FRESNO V. CALIFORNIA 372 U.S. 627 


NO. 51.  ARGUED JANUARY 7, 1963.  - DECIDED APRIL 15, 1963.  - 293 F.2D
340, 307 F.2D 96, AFFIRMED AS TO THIS PETITIONER. 


CLAIMANTS TO WATER RIGHTS ALONG THE SAN JOAQUIN RIVER BELOW THE FRIANT
DAM IN CALIFORNIA BROUGHT SUIT AGAINST THE UNITED STATES, LOCAL
OFFICIALS OF THE UNITED STATES BUREAU OF RECLAMATION, AND A NUMBER OF
IRRIGATION AND UTILITY DISTRICTS TO ENJOIN THE STORAGE AND DIVERSION OF
WATER AT THE DAM, WHICH IS PART OF THE CENTRAL VALLEY RECLAMATION
PROJECT, AUTHORIZED BY CONGRESS AND UNDERTAKEN BY THE BUREAU OF
RECLAMATION UNDER THE ACT OF AUGUST 26, 1937, 50 STAT. 844.  THE SUIT
WAS BROUGHT ORIGINALLY IN A STATE COURT AND WAS REMOVED TO A FEDERAL
DISTRICT COURT.  THE CITY OF FRESNO INTERVENED AS A PARTY PLAINTIFF
AND, IN ADDITION TO INJUNCTIVE RELIEF, SOUGHT A DECLARATORY JUDGMENT AS
TO (1) ITS RIGHTS TO UNDERGROUND WATER FED BY THE RIVER, (2) ITS
STATUTORY PRIORITY, UNDER CALIFORNIA LAW, TO THE USE OF WATER FOR
MUNICIPAL OR DOMESTIC PURPOSES, (3) ITS PRIOR RIGHT UNDER THE
CALIFORNIA STATUTES BECAUSE OF ITS LOCATION, AND (4) ITS ENTITLEMENT TO
PROJECT WATER FROM THE UNITED STATES AT THE SAME RATE CHARGED FOR WATER
DELIVERED FOR IRRIGATION PURPOSES.  HELD: 

1.  THE SUIT AGAINST THE UNITED STATES MUST FAIL FOR LACK OF A
CONSENT; THE RELIEF AGAINST THE RECLAMATION BUREAU OFFICIALS MUST ALSO
FAIL AS BEING IN TRUTH AGAINST THE UNITED STATES; THE UNITED STATES HAD
SEIZED, IN WHOLE OR IN PART, THE WATER RIGHTS ASSERTED BY THE
CLAIMANTS; AND THEIR RECOURSE WAS THROUGH A SUIT UNDER THE TUCKER ACT,
28 U.S.C.  SEC. 1346, FOR DAMAGES.  DUGAN V. RANK, ANTE, P. 609.  PP.
628-629. 

2.  SECTION 8 OF THE RECLAMATION ACT OF 1902 DOES NOT MEAN THAT STATE
LAW MAY OPERATE TO PREVENT THE UNITED STATES FROM EXERCISING THE POWER
OF EMINENT DOMAIN TO ACQUIRE THE WATER RIGHTS OF OTHERS.   PP. 629
630. 

3.  FRESNO HAS NO PREFERENTIAL RIGHTS TO CONTRACT FOR PROJECT WATER,
BUT MAY RECEIVE IT ONLY IF, IN THE JUDGMENT OF THE SECRETARY OF THE
INTERIOR, IRRIGATION WILL NOT BE ADVERSELY AFFECTED.  PP. 630-631. 

4.  UNDER SEC. 9(C) OF THE RECLAMATION PROJECT ACT OF 1939, AUTHORITY
AND DISCRETION TO FIX RATES COVERING IRRIGATION AS WELL AS MUNICIPAL
WATER SERVICE WAS DELEGATED TO THE SECRETARY OF THE INTERIOR; AND THE
OFFICIALS OF THE BUREAU OF RECLAMATION ACTED ENTIRELY WITHIN THE SCOPE
OF THEIR AUTHORITY IN OPERATING THE PROJECT AS THEY DID AND FIXING THE
RATES FOR WATER IN ACCORDANCE WITH CONGRESSIONAL MANDATE, AS APPROVED
BY THIS COURT IN IVANHOE IRRIGATION DISTRICT V. MCCRACKEN, 357 U.S.
275.  PP. 631-632. 

CITY OF FRESNO V. CALIFORNIA ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES OUT OF NO. 31, DUGAN V. RANK, DECIDED TODAY, ANTE,
P. 609.  AS SET OUT IN OUR OPINION IN THAT CASE THE ORIGINAL SUIT WAS
INSTITUTED AGAINST CERTAIN LOCAL UNITED STATES RECLAMATION BUREAU
OFFICIALS AND SEVERAL IRRIGATION AND UTILITY DISTRICTS BY A NUMBER OF
CLAIMANTS TO WATER RIGHTS ALONG THE SAN JOAQUIN RIVER BELOW FRIANT
DAM.  SUBSEQUENTLY THE UNITED STATES, OVER ITS PROTEST, WAS MADE A
PARTY AND THE PETITIONER HERE, THE CITY OF FRESNO, INTERVENED AS A
PARTY PLAINTIFF.  FRESNO SOUGHT, IN ADDITION TO THE INJUNCTIVE RELIEF
REQUESTED BY THE OTHER PARTIES, A DECLARATION AS TO (1) ITS WATER
RIGHTS AS AN OVERLYING OWNER, I.E., RIGHTS TO UNDERGROUND WATER FED BY
THE RIVER; (2) ITS STATUTORY PRIORITY, UNDER CALIFORNIA LAW, TO THE USE
OF WATER FOR MUNICIPAL OR DOMESTIC PURPOSES, CALIF. WATER CODE, SEC.
1460; (3) ITS PRIOR RIGHT, UNDER THE CALIFORNIA COUNTY OR ORIGIN AND
WATERSHED ACTS, BECAUSE OF ITS LOCATION, CALIF. WATER CODE, SECS.
11460, 11463; AND (4) ITS ENTITLEMENT TO PROJECT WATER FROM THE UNITED
STATES AT THE SAME RATE CHARGED FOR WATER DELIVERED FOR IRRIGATION
PURPOSES.  IN THE DISTRICT COURT FRESNO PREVAILED ON ALL POINTS.  IN
THE COURT OF APPEALS THIS JUDGMENT WAS SET ASIDE "INSOFAR AS IT RELATES
TO THE TERMS UPON WHICH THE CITY OF FRESNO IS ENTITLED TO RECEIVE WATER
FROM THE UNITED STATES AT FRIANT DAM," 293 F.2D 340, 360, BECAUSE IN
ESTABLISHING THE RATE AT WHICH WATER WOULD BE DELIVERED THE RESPONDENT
OFFICIALS WERE ACTING "WITHIN THE SCOPE OF THEIR STATUTORY AUTHORITY
AND WERE CARRYING OUT THE DUTIES IMPOSED UPON THEM BY THEIR OFFICIAL
POSITIONS  ...  .  THE COMPLAINT OF FRESNO IN THIS REGARD IS A
COMPLAINT AGAINST THE UNITED STATES AND THIS DISPUTE MAY NOT BE
ENTERTAINED JUDICIALLY WITHOUT A WAIVER OF SOVEREIGN IMMUNITY ON THE
PART OF THE UNITED STATES."  ID., AT 352.  WITH REGARD TO THE CLAIM
THAT IT ENJOYED WATER RIGHTS SUPERIOR TO THOSE OF THE UNITED STATES,
THE COURT OF APPEALS REFUSED TO DECIDE, SAYING ON REHEARING THAT "IF
AND WHEN SUCH RIGHTS HAVE BEEN ESTABLISHED IN ACCORDANCE WITH STATE
LAW, FRESNO MAY BE ABLE EFFECTIVELY TO PROTEST THE IMPOUNDING OF WATERS
BY THESE DEFENDANTS IN CONTRAVENTION OF SUCH RIGHTS."  ID., AT 360. 

OUR OPINION IN DUGAN V. RANK, SUPRA, CONTROLS THE DECISION IN THIS
CASE.  THERE WE DECIDED THAT THE SUIT AGAINST THE UNITED STATES MUST
FAIL FOR LACK OF CONSENT; THAT THE RELIEF AGAINST THE RECLAMATION
BUREAU OFFICIALS MUST ALSO FAIL AS BEING IN TRUTH AGAINST THE UNITED
STATES; THAT THE UNITED STATES HAS SEIZED, IN WHOLE OR IN PART, THE
WATER RIGHTS ASSERTED BY THE CLAIMANTS; AND THAT THEIR RECOURSE WAS
THROUGH A TUCKER ACT SUIT.  28 U.S.C. SEC. 1346.  THE SAME IS TRUE
HERE. 

WE AGREE ENTIRELY WITH THE DISPOSITION OF THE COURT OF APPEALS. 
PETITIONER SEEMS TO SAY THAT SEC. 8 OF THE RECLAMATION ACT OF 1902, 32
STAT. 390, 43 U.S.C. SEC. 383, REQUIRES COMPLIANCE WITH CALIFORNIA
STATUTES RELATING TO PREFERENTIAL RIGHTS OF COUNTIES AND WATERSHEDS OF
ORIGIN AND TO THE PRIORITY OF DOMESTIC OVER IRRIGATION USES.  HOWEVER,
SEC. 8 DOES NOT MEAN THAT STATE LAW MAY OPERATE TO PREVENT THE UNITED
STATES FROM EXERCISING THE POWER OF EMINENT DOMAIN TO ACQUIRE THE WATER
RIGHTS OF OTHERS.  THIS WAS SETTLED IN IVANHOE IRRIGATION DISTRICT V.
MCCRACKEN, 357 U.S. 275 (1958).  RATHER, THE EFFECT OF SEC. 8 IN SUCH A
CASE IS TO LEAVE TO STATE LAW THE DEFINITION OF THE PROPERTY INTERESTS,
IF ANY, FOR WHICH COMPENSATION MUST BE MADE. 

WE ALSO NOTE THAT THE COUNTY OF ORIGIN AND WATERSHED ACTS, UPON WHICH
THE CITY RELIES, DO NOT GRANT THE PREFERENCE CLAIMED.  UNDER THE
STATUTES THE AREA OF PREFERENCE IS "  ...  A WATERSHED OR AREA WHEREIN
WATER ORIGINATES, OR AN AREA IMMEDIATELY ADJACENT THERETO WHICH CAN
CONVENIENTLY BE SUPPLIED WITH WATER THEREFROM  ...  ."  CALIF. WATER
CODE, SEC. 11460.  THE AREA OF SERVICE FROM FRIANT DAM WOULD INCLUDE
KERN AND TULARE COUNTIES AS WELL AS FRESNO AND MADERA.  (SEE MAP IN 142
F. SUPP., AT 40.)  THE PREFERENCE UNDER THE ACTS IS NOT LIMITED TO THAT
AREA CLOSEST TO THE STREAM, BUT EXTENDS BEYOND THE WATERSHED AND TO
AREAS ADJACENT THERETO WHICH CAN "CONVENIENTLY BE SUPPLIED WITH WATER
THEREFROM," WHICH FROM THE MAP WOULD SEEM TO INCLUDE THE FRIANT-KERN AS
WELL AS THE MADERA CANAL AREAS.  LIKEWISE, THE CLAIM AS TO THE
PREFERENCE OF WATER DEVOTED TO DOMESTIC USES IS UNFOUNDED.  SECTION
9(C) OF THE RECLAMATION PROEJCT ACT OF 1939, 53 STAT. 1194, AS AMENDED,
43 U.S.C. 485HC), PROVIDES:  "NO CONTRACT RELATING TO MUNICIPAL WATER
SUPPLY OR MISCELLANEOUS PURPOSES  ...  SHALL BE MADE UNLESS, IN THE
JUDGMENT OF THE SECRETARY OF THE INTERIOR, IT WILL NOT IMPAIR THE
EFFICIENCY OF THE PROJECT FOR IRRIGATION PURPOSES."  IN UNITED STATES
V. GERLACH LIVE STOCK CO., 339 U.S. 725 (1950), WE WERE CONCERNED WITH
AN ISSUE REGARDING THE NATURE OF THE FRIANT DAM UNIT OF THE PROJECT
AND, CONTRARY TO PETITIONER'S CONTENTION, CONCLUDED "THAT CONGRESS
REALISTICALLY ELECTED TO TREAT IT AS A RECLAMATION PROJECT."  ID., AT
739.  IT THEREFORE APPEARS CLEAR THAT FRESNO HAS NO PREFERENTIAL RIGHTS
TO CONTRACT FOR PROJECT WATER, BUT MAY RECEIVE IT ONLY IF, IN THE
SECRETARY'S JUDGMENT, IRRIGATION WILL NOT BE ADVERSELY AFFECTED. 

AS TO THE RATES CHARGED FOR MUNICIPAL WATER, THIS SAME SEC. 9(C),
SUPRA, DELEGATES AUTHORITY AND DISCRETION TO THE SECRETARY OF THE
INTERIOR TO FIX RATES COVERING IRRIGATION AS WELL AS MUNICIPAL WATER
SERVICE.  IT PROVIDES THAT THE YARDSTICK FOR DETERMINING RATES SHALL BE
SUCH "AS IN THE SECRETARY'S JUDGMENT WILL PRODUCE REVENUES AT LEAST
SUFFICIENT TO COVER AN APPROPRIATE SHARE OF THE ANNUAL OPERATION AND
MAINTENANCE COST AND AN APPROPRIATE SHARE OF SUCH FIXED CHARGES AS THE
SECRETARY DEEMS PROPER  ...  ."  THE SECRETARY EXERCISED THIS
DISCRETION AND SO NOTIFIED THE CONGRESS AS TO THE BASIS FOR HIS
DETERMINATION OF THE APPROPRIATE CHARGE FOR MUNICIPAL WATER. 
ALLOCATION OF COSTS AND FEASIBILITY REPORT OF FEBRUARY 24, 1947, H.R.
DOC. NO. 146, 80TH CONG., 1ST SESS. 19; 1 ENGLE, CENTRAL VALLEY PROJECT
DOC. (1956), H.R. DOC. NO. 416, 84TH CONG., 2D SESS. 574, 594-596. 
THIS REPORT ESTIMATED A RATE OF $10 PER ACRE-FOOT FOR MUNICIPAL WATER
AND ABOUT $3 PER ACRE-FOOT OR LESS FOR IRRIGATION WATER.  ID., AT 594
596.  THE LATTER RATE WAS BASED ON FARM BENEFITS AS WELL AS THE ABILITY
OF THE USER TO PAY OVER A PROTRACTED PERIOD.  IT WAS ESTIMATED THAT
THIS RATE WOULD RETURN DURING THE REPAYMENT PERIOD ONLY ABOUT ONE
FOURTH OF THE PROJECT CAPITAL COST ALLOCATED TO IRRIGATION.  ID., AT
576-577, 597.  AS TO MUNICIPAL RATES, THE RETURN DURING THE SAME PERIOD
WAS ESTIMATED AT OVER THREE TIMES THE PROJECT CAPITAL COST ALLOCATED TO
THE DELIVERY OF MUNICIPAL WATER.*  THIS SURPLUS, TOGETHER WITH THAT
FROM PROJECT ELECTRIC ENERGY, WOULD BE USED TO PAY PROJECT COSTS
ALLOCATED TO IRRIGATION BUT WHICH WERE BEYOND THE ABILITY OF THE
IRRIGATORS TO PAY.  CONGRESS HAS BEEN KEPT ADVISED AS TO THE MANNER IN
WHICH THESE RATE SCHEDULES ARE OPERATING.  2 ENGLE, CENTRAL VALLEY
PROJECT DOC. (1957), H.R. DOC. NO. 246, 85TH CONG., 1ST SESS. 79-84,
261-262. 

*THE PAYMENTS FOR IRRIGATION WATER AMOUNTED TO $58,545,475, WHILE
PROJECT CAPITAL COST ALLOCATED TO IRRIGATION WAS $221,551,600. 
MUNICIPAL WATER RATES WOULD RETURN $29,667,932, WHILE PROJECT CAPITAL
COST ALLOCATED TO MUNICIPAL WATER SUPPLY WAS $9,091,800. 

IN ACCORDANCE WITH THE SECRETARY'S ESTIMATES, LONG-TERM CONTRACTS FOR
FRIANT DAM WATER PROVIDE FOR A RATE OF $3.50 PER ACRE-FOOT FOR CLASS 1
WATER AND $1.50 FOR CLASS 2, WHILE CONTRACTS FOR MUNICIPAL WATER SUPPLY
CALL FOR $10 PER ACRE-FOOT.  IT APPEARS AMPLY CLEAR THAT THE
RECLAMATION BUREAU OFFICIALS WERE ACTING ENTIRELY WITHIN THE SCOPE OF
THEIR AUTHORITY IN OPERATING THE PROJECT IN THIS MANNER AND FIXING THE
RATES FOR WATER IN ACCORDANCE WITH CONGRESSIONAL MANDATE, ALL OF WHICH
HAS SPECIFICALLY RECEIVED OUR APPROVAL IN IVANHOE IRRIGATION DISTRICT
V. MCCRACKEN, SUPRA, AT 295. 

THE JUDGMENT, INSOFAR AS IT RELATES TO THIS PETITION OF THE CITY OF
FRESNO, IS AFFIRMED AND THE CASE REMANDED TO THE COURT OF APPEALS WITH
DIRECTIONS TO VACATE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE
CASE WITH INSTRUCTIONS TO DISMISS THE SAME.  IT IS SO ORDERED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















WOLF V. WEINSTEIN 372 U.S. 633 


NO. 70.  ARGUED FEBRUARY 20, 1963.  - DECIDED APRIL 15, 1963.  - 296
F.2D 678, REVERSED AND REMANDED. 


IN A PROCEEDING UNDER CHAPTER X OF THE BANKRUPTCY ACT FOR THE
REORGANIZATION OF A DEBTOR CORPORATION, THE COURT PERMITTED THE DEBTOR
TO REMAIN IN POSSESSION PURSUANT TO SEC. 156 OF THE BANKRUPTCY ACT,
AUTHORIZED ITS PRESIDENT AND GENERAL MANAGER TO CONTINUE TO SERVE IN
THOSE CAPACITIES AND APPROVED SALARIES FOR EACH OF THEM.  THE GENERAL
MANAGER ACTIVELY MANAGED THE BUSINESS AND THE PRESIDENT ACTED PRIMARILY
IN A CONSULTIVE OR ADVISORY CAPACITY.  AFTER HEARINGS, THE DISTRICT
COURT CONCLUDED THAT EACH OF THEM WAS A "FIDUCIARY" WITHIN THE MEANING
OF SEC. 249 OF THE BANKRUPTCY ACT AND THAT THEY HAD TRADED IN STOCK OF
THE DEBTOR CORPORATION WITHOUT THE CONSENT OR APPROVAL OF THE JUDGE,
AND IT ORDERED THAT THEIR COMPENSATION BE TERMINATED, THAT THE GENERAL
MANAGER BE DISCHARGED AND THAT THE PRESIDENT HAVE NOTHING MORE TO DO
WITH THE MANAGEMENT OF THE BUSINESS.  HELD: 

1.  THE PURPOSE OF SEC. 249 WAS TO GIVE PERVASIVE EFFECT IN CHAPTER X
PROCEEDINGS TO THE HISTORIC MAXIM OF EQUITY THAT A FIDUCIARY MAY NOT
RECEIVE COMPENSATION FOR SERVICES TAINTED BY DISLOYALTY OR CONFLICT OF
INTEREST; AND NO CONGRESSIONAL PURPOSE TO EXCLUDE INSIDERS, SUCH AS A
PRESIDENT OR GENERAL MANAGER OR A DEBTOR CORPORATION, CAN BE
PERCEIVED.  PP. 639-645. 

2.  ON THE RECORD IN THIS CASE, THE DISTRICT COURT CORRECTLY FOUND
THAT THE PRESIDENT AND GENERAL MANAGER OF THIS DEBTOR CORPORATION WERE
FIDUCIARIES AND THAT SEC. 249 APPLIES TO THEM.  PP. 646-653. 

(A)  SECTION 249 WAS NOT INTENDED TO APPLY ONLY TO THOSE PERSONS
SPECIFICALLY LISTED IN SEC. 241-243 WHO ARE REQUIRED TO APPLY TO THE
COURT FOR COMPENSATION OR REIMBURSEMENT UNDER SEC. 247.  PP. 646-647. 

(B)  APPROVAL BY THE COURT OF THE COMPENSATION OF AN OFFICER OR AN
EMPLOYEE UNDER SEC. 191 DOES NOT IMMUNIZE HIM FROM THE SANCTIONS OF
SEC. 249.  PP. 647-649. 

(C)  SINCE OFFICERS OF A DEBTOR CORPORATION LEFT IN POSSESSION UNDER
SEC. 156 PERFORM ESSENTIALLY THE FUNCTIONS WHICH OTHERWISE WOULD BE
PERFORMED BY A DISINTERESTED TRUSTEE, THEY INCUR SIMILAR
RESPONSIBILITIES AND OBLIGATIONS TO THE CREDITORS AND SHAREHOLDERS,
WHICH MAY MAKE THEM FIDUCIARIES WITHIN THE MEANING OF SEC. 249.  PP.
649-652. 

(D)  SINCE THE DISTRICT COURT TOOK EVIDENCE CONCERNING THE ACTIVITIES
AND RESPONSIBILITIES OF THE PRESIDENT AND GENERAL MANAGER HERE INVOLVED
AND CONCLUDED THAT EACH OF THEM WAS A "FIDUCIARY" FOR THE PURPOSE OF
SEC. 249, AND THE RECORD SUPPORTS THESE FINDINGS, THEY WERE PROPERLY
HELD SUBJECT TO SEC. 249.  PP. 652-653. 

3.  ALTHOUGH RESPONDENTS' TRADING INVOLVED SMALL AMOUNTS OF THE
DEBTOR'S STOCK AND APPARENTLY WAS CARRIED ON IN GOOD FAITH, THE
PERVASIVE POLICIES OF SEC. 249 REQUIRE NOT ONLY THE DENIAL OF ALL
FUTURE COMPENSATION BUT ALSO THE RESTITUTION OF ALL COMPENSATION
RECEIVED SINCE THE START OF THE REORGANIZATION; BUT THEY DO NOT
NECESSARILY REQUIRE THE REMOVAL OF RESPONDENTS FROM THEIR CORPORATE
OFFICES.  PP. 653-657. 

4.  CERTIORARI WAS ALSO GRANTED IN THIS CASE TO REVIEW A JUDGMENT OF
THE COURT OF APPEALS REVERSING AN ORDER OF THE DISTRICT COURT
DETERMINING A CONTROVERSY OVER THE RIGHTS OF NUMEROUS CLAIMANTS TO
STOCK INTERESTS IN THE DEBTOR CORPORATION, BUT ORAL ARGUMENT REVEALED
THAT THE CONTROVERSY PRIMARILY INVOLVED QUESTIONS OF STATE LAW AND
PRESENTED NO FEDERAL QUESTION OF SUBSTANCE.  THEREFORE, THE WRIT OF
CERTIORARI AS TO THE JUDGMENT OF THE COURT OF APPEALS CONCERNING THAT
CONTROVERSY IS DISMISSED AS IMPROVIDENTLY GRANTED.  P. 636. 

WOLF ET AL. V. WEINSTEIN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS TWO ORDERS OF THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK MADE IN A PROCEEDING FOR THE REORGANIZATION OF
RESPONDENT CORPORATION, NAZARETH FAIRGROUNDS AND FARMERS' MARKET, INC.
(THE DEBTOR), UNDER CHAPTER X OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 501
676.  ONE ORDER DETERMINED A CONTROVERSY OVER THE RIGHTS OF NUMEROUS
CLAIMANTS TO STOCK INTERESTS IN THE DEBTOR.  THE OTHER ORDER -
PREDICATED ON FINDINGS THAT RESPONDENT WEINSTEIN, PRESIDENT OF THE
DEBTOR, AND RESPONDENT FRIED, THE DEBTOR'S GENERAL MANAGER, HAD TRADED
IN THE DEBTOR'S STOCK DURING THE PROCEEDING IN VIOLATION OF SEC. 249 OF
THE BANKRUPTCY ACT, 11 U.S.C. SEC. 649 (FN1) - DIRECTED THAT WEINSTEIN
HAVE NOTHING FURTHER TO DO WITH THE OPERATION OF THE DEBTOR'S BUSINESS,
THAT FRIED BE DISCHARGED AS GENERAL MANAGER AND THAT THE COMPENSATION
OF BOTH BE TERMINATED FORTHWITH.  NEITHER RESPONDENT WAS, HOWEVER,
DIRECTED TO RETURN THE COMPENSATION HE HAD RECEIVED BEFORE THE DATE OF
THE ORDER.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT, IN SEPARATE
OPINIONS, REVERSED BOTH ORDERS.  WE GRANTED CERTIORARI, 369 U.S. 837. 

WE DECIDE ONLY THE ISSUES PRESENTED BY THE COURT OF APPEALS' REVERSAL
OF  THE DISTRICT COURT'S ORDER APPLYING SEC. 249 TO WEINSTEIN AND
FRIED, ADJUDICATED SUB NOM.  IN RE NAZARETH FAIRGROUNDS & FARMERS'
MARKET, INC., DEBTOR, 296 F.2D 678.  DECISION OF THOSE ISSUES, WHICH
INVOLVE THE REACH OF SEC. 249, IS IMPORTANT IN THE ADMINISTRATION OF
THE BANKRUPTCY ACT.  BUT OUR CONSIDERATION OF THE ISSUES UNDERLYING THE
ORDER OF THE DISTRICT REVERSED SUB NOM. FRIED V. MARGOLIS, 296 F.2D
670, PERSUADES US THAT THE GRANT OF CERTIORARI TO REVIEW THESE ISSUES
WAS IMPROVIDENT.  ORAL ARGUMENT BROUGHT INTO SHARPER FOCUS THAN WAS
APPARENT AT THE TIME WE GRANTED THE WRIT THAT THE CONTROVERSY OVER THE
STOCK INTERESTS PRIMARILY IMPLICATES QUESTIONS OF PENNSYLVANIA LAW AND
PRESENTS NO FEDERAL QUESTION OF SUBSTANCE.  IN THE CIRCUMSTANCES, THE
WRIT OF CERTIORARI AS TO THAT JUDGMENT OF THE COURT OF APPEALS IS
DISMISSED AS IMPROVIDENTLY GRANTED.  CF. THE MONROSA V. CARBON BLACK,
INC., 359 U.S. 180, 183-184. 

THE PERTINENT PROVISIONS OF SEC. 249 DISALLOW COMPENSATION OR
REIMBURSEMENT TO ANY PERSON "ACTING IN THE PROCEEDINGS IN A
REPRESENTATIVE OR FIDUCIARY CAPACITY, WHO AT ANY TIME AFTER ASSUMING TO
ACT IN SUCH CAPACITY HAS PURCHASED OR SOLD  ...  STOCK OF THE DEBTOR
...  WITHOUT THE PRIOR CONSENT OR SUBSEQUENT APPROVAL OF THE JUDGE  ...
."  BOTH WEINSTEIN AND FRIED TRADED IN THE DEBTOR'S STOCK WHILE
SERVING RESPECTIVELY AS PRESIDENT AND GENERAL MANAGER.  (FN2)  BOTH
HELD THEIR POSITIONS WITH THE APPROVAL OF THE DISTRICT COURT WHICH,
AFTER PERMITTING THE DEBTOR TO REMAIN IN POSSESSION PURSUANT TO SEC.
156, 11 U.S.C. SEC. 556, AUTHORIZED WEINSTEIN TO CONTINUE TO SERVE AS
PRESIDENT AND FRIED TO CONTINUE AS GENERAL MANAGER.  THE COURT ALSO
APPROVED SALARIES FOR EACH.  (FN3)  FRIED HAS ACTIVELY MANAGED THE
BUSINESS, THE PRINCIPAL ASSET OF WHICH IS A FARMERS' MARKET LOCATED IN
EASTERN PENNSYLVANIA.  WEINSTEIN, A NEW YORK ATTORNEY, HAS ACTED
PRIMARILY IN A CONSULTATIVE OR ADVISORY CAPACITY.  TH DEBTOR'S BUSINESS
HAS PROSPERED UNDER THEIR MANAGEMENT DESPITE CONSIDERABLE FRICTION AND
DISSENSION BETWEEN FACTIONS CONTENDING FOR STOCK AND MANAGERIAL
CONTROL. 

THE DISTRICT COURT, AFTER HEARINGS UPON THE NATURE AND EXTENT OF
WEINSTEIN'S AND FRIED'S DUTIES AND ACTIVITIES, CONCLUDED THAT EACH WAS
A "FIDUCIARY" WITHIN THE MEANING OF SEC. 249.  (FN4)  THE DISTRICT
COURT THEREUPON ORDERED THAT THEIR COMPENSATION BE TERMINATED, THAT
FRIED BE DISCHARGED AS GENERAL MANAGER, AND THAT WEINSTEIN, WHOSE
REMOVAL AS PRESIDENT THE COURT BELIEVED WAS BEYOND ITS POWERS, HAVE
NOTHING FURTHER TO DO WITH THE MANAGEMENT OF THE BUSINESS.  (FN5)  THE
COURT OF APPEALS REVERSED THE ORDER IN ITS ENTIRETY ON THE GROUND THAT
SEC. 249 APPLIED TO NEITHER WEINSTEIN NOR FRIED.  THE COURT OF APPEALS
INDICATED THAT "DOUBTLESS" A LITERAL READING OF THE STATUTE'S TERMS
WOULD INCLUDE BOTH, BUT HELD THAT SEC. 249 WAS TO BE CONSTRUED AS
APPLICABLE NOT TO EVERY "PERSON ACTING IN THE PROCEEDINGS IN A
REPRESENTATIVE OR FIDUCIARY CAPACITY" BUT ONLY TO SUCH PERSONS IN THE
PARTICULAR CAPACITIES NAMED IN SEC. 241, 242 AND 243, 11 U.S.C. SECS.
641, 642 AND 643 - PETITIONING CREDITORS, COURT OFFICERS AND THEIR
ATTORNEYS, INDENTURE TRUSTEES, DEPOSITARIES, REORGANIZATION MANAGERS,
COMMITTEES, CREDITORS AND STOCKHOLDERS, OR THEIR REPRESENTATIVES, AND
THE ATTORNEYS FOR THEM OR FOR "OTHER PARTIES IN INTEREST" - WHO UNDER
SEC. 247 ARE ENTITLED TO A HEARING UPON APPLICATIONS FOR ALLOWANCES
AFTER NOTICE TO CERTAIN INTERESTED GROUPS AND INDIVIDUALS.  296 F.2D,
AT 682-683.  IN REVERSING THE DISTRICT COURT ON THIS GROUND THE COURT
OF APPEALS FOUND NO OCCASION TO CONSIDER THE QUESTION WHETHER IN
ADDITION TO DENIAL OF COMPENSATION REMOVAL FROM OFFICE WAS AUTHORIZED
OR REQUIRED WHERE SEC. 249 WAS APPLICABLE, SINCE IN ITS VIEW "THE ORDER
OF REMOVAL CANNOT SURVIVE THE FALL OF ITS UNDERPINNING."  296 F.2D, AT
683. 

WE DISAGREE WITH THE COURT OF APPEALS.  WE HOLD THAT PERSONS
PERFORMING FIDUCIARY FUNCTIONS SUCH AS THOSE WHICH THE DISTRICT COURT
FOUND WEINSTEIN AND FRIED HAD PERFORMED ARE SUBJECT TO SEC. 249. 

    I. 

THE VIRTUAL IMMUNITY WHICH ACTIVE PARTICIPANTS IN CORPORATE
REORGANIZATIONS ENJOYED FROM JUDICIAL SUPERINTENDENCE OF ABUSES IN THE
PAYMENT OF COMPENSATION AND ALLOWANCES WAS ONE OF THE PRINCIPAL REASONS
FOR THE ENACTMENT OF SEC. 77B OF THE BANKRUPTCY ACT IN 1934.  (FN6)
"THERE WAS THE SPECTACLE OF FIDUCIARIES FIXING THE WORTH OF THEIR OWN
SERVICES AND EXACTING FEES WHICH OFTEN HAD NO RELATION TO THE VALUE OF
SERVICES RENDERED, LEIMAN V. GUTTMAN, 336 U.S. 1, 7.  SECTION 77B,
AMONG OTHER SIGNIFICANT REFORMS, CREATED IMPORTANT NEW JUDICIAL POWERS
TO REGULATE THE PAYMENT OF COMPENSATION AND THE REIMBURSEMENT OF
EXPENSES.  SEE DICKINSON INDUSTRIAL SITE, INC., V. COWAN, 309 U.S. 382,
388-389.  PASSAGE OF THE CHANDLER ACT FOUR YEARS LATER MEASURABLY
STRENGTHENED THESE POWERS OF JUDICIAL SUPERINTENDENCE, PARTICULARLY
WITH RESPECT TO CORPORATE REORGANIZATIONS, THROUGH THE NEW PROVISIONS
OF C. X, 11 U.S.C. SECS. 501-676, SEE BROWN V. GERDES, 321 U.S. 178,
181-182.  IN CURBING THE PRE-STATUTORY ABUSES THE GENERAL PROVISIONS OF
SEC. 77B HAD PROVED INADEQUATE.  (FN7) CHAPTER X SOUGHT ALSO TO BROADEN
THE PARTICIPATION OF INTERESTED GROUPS IN THE REORGANIZATION BY
ENSURING COMPENSATION TO SEVERAL CLASSES WHICH THERETOFORE OFTEN SERVED
THE ESTATE AS VOLUNTEERS.  (FN8) 

NO STATUTORY SANCTION AGAINST TRADING IN THE DEBTOR'S SECURITIES
DURING A REORGANIZATION WAS PROVIDED BEFORE THE CHANDLER ACT.  HOWEVER,
SEC. 77B'S BROAD MANDATE THAT FEES AND ALLOWANCES MUST BE "REASONABLE"
TO MERIT JUDICIAL APPROVAL HAD BEEN HELD SUFFICIENT AUTHORITY BY TWO
FEDERAL COURTS TO SANCTION DENIAL OF COMPENSATION TO PERSONS HOLDING
FIDUCIARY POSITIONS IN REORGANIZATION PROCEEDINGS WHO HAD TRADED IN THE
DEBTOR'S STOCK.  IN RE PARAMOUNT-PUBLIX CORP., 12 F. SUPP. 823, 828,
REV'D IN PART, 83 F.2D 406; IN RE REPUBLIC GAS CORP., 35 F. SUPP. 300. 
THESE DECISIONS FOUND EVEN IN THE GENERAL TERMS OF THE STATUTE THE
EMBODIMENT OF "ANCIENT EQUITY RULES GOVERNING THE CONDUCT OF TRUSTEES,
INCLUDING DEPRIVATION OF COMPENSATION WHERE THERE IS A DEPARTURE FROM
THOSE RULES."  35 F. SUPP., AT 305. 

THE RELEVANT LEGISLATIVE MATERIALS LEAVE NO DOUBT THAT THE PURPOSE
BEHIND SEC. 249 WAS TO CODIFY THE RULE OF THESE DECISIONS AND TO GIVE
PERVASIVE EFFECT IN CHAPTER X PROCEEDINGS TO THE HISTORIC MAXIM OF
EQUITY THAT A FIDUCIARY MAY NOT RECEIVE COMPENSATION FOR SERVICES
TAINTED BY DISLOYALTY OR CONFLICT OF INTEREST.  (FN9)  CF. MICHOUD V.
GIROD, 4 HOW.  503, 556-560; WEIL V. NEARY, 278 U.S. 160; MAGRUDER V.
DRURY, 235 U.S. 106, 119-120.  INDEED, WE HAVE SEVERAL TIMES DECLARED
THAT THE GENERAL STATUTORY AUTHORIZATION IN THE BANKRUPTCY ACT FOR
"REASONABLE" COMPENSATION FOR SERVICES "NECESSARILY IMPLIES LOYAL AND
DISINTERESTED SERVICE IN THE INTEREST OF THOSE FOR WHOM THE CLAIMANT
PURPORTED TO ACT."  WOODS V. CITY NAT. BANK & TRUST CO., 312 U.S. 262,
268; SEE ALSO AMERICAN UNITED MUTUAL LIFE INS. CO. V. AVON PARK, 311
U.S. 138. 

ACCESS TO INSIDE INFORMATION OR STRATEGIC POSITION IN A CORPORATE
REORGANIZATION RENDERS THE TEMPTATION TO PROFIT BY TRADING IN THE
DEBTOR'S STOCK PARTICULARLY PERNICIOUS.  THE PARTICULAR DANGERS MAY
TAKE TWO FORMS:  ON THE ONE HAND, AN INSIDER IS IN A POSITION TO
CONCEAL FROM OTHER STOCKHOLDERS VITAL INFORMATION CONCERNING THE
DEBTOR'S FINANCIAL CONDITION OR PROSPECTS, WHICH MAY AFFECT THE VALUE
OF ITS SECURITIES, UNTIL AFTER HE HAS REAPED A PRIVATE PROFIT FROM THE
USE OF THAT INFORMATION.  ON THE OTHER HAND, ONE WHO EXERCISES CONTROL
OVER A REORGANIZATION HOLDS A POST WHICH MIGHT TEMPT HIM TO AFFECT OR
INFLUENCE CORPORATE POLICIES - EVEN THE SHAPING OF THE VERY PLAN OF
REORGANIZATION - FOR THE BENEFIT OF HIS OWN SECURITY HOLDINGS BUT TO
THE DETRIMENT OF THE DEBTOR'S INTERESTS AND THOSE OF ITS CREDITORS AND
OTHER INTERESTED GROUPS.  (FN10) 

CONGRESS ENACTED TWO DISTINCT TYPES OF SANCTIONS TO PREVENT THESE
POSSIBLE PRACTICES.  ONE APPEARS IN SEC. 16(B) OF THE SECURITIES
EXCHANGE ACT, 15 U.S.C. SEC. 78PB), WHICH PROHIBITS THE REALIZATION BY
INSIDERS OF SHORT-SWING PROFITS FROM TRADING IN THEIR CORPORATION'S
STOCK, EVEN WHEN THE CORPORATION IS SOLVENT.  CF. BLAU V. LEHMAN, 368
U.S. 403.  THE OTHER SANCTION, DIRECTED AT PREVENTING INSIDER TRADING
DURING INSOLVENCY OR REORGANIZATION, APPEARS IN SEC. 249; IT DENIES TO
A "FIDUCIARY" OR "REPRESENTATIVE" ANY COMPENSATION OR REIMBURSEMENT IF
AT ANY TIME DURING THE PROCEEDING HE TRADES IN THE DEBTOR'S STOCK.  THE
TWO PROVISIONS ARE CUMULATIVE, NOT ALTERNATIVE.  (FN11) 

IN THE LIGHT OF ITS CLEARLY REVEALED OBJECTIVES, NO CONGRESSIONAL
PURPOSE TO EXCLUDE FROM SEC. 249 INSIDERS SUCH AS WEINSTEIN AND FRIED -
WHO ARE, AS THE DISTRICT COURT FOUND, NO LESS FIDUCIARIES OF THE DEBTOR
THAN COMMITTEE MEMBERS, TRUSTEES OR ATTORNEYS - CAN BE PERCEIVED. 
CERTAINLY THE POSSIBILITIES FOR ABUSE OF THEIR ACCESS TO INSIDE
INFORMATION AND ITS CLANDESTINE USE FOR PERSONAL PROFIT ARE NO LESS. 
(FN12)  THUS THROUGHOUT THE CONTEXT OF CORPORATE REORGANIZATION AND
BANKRUPTCY, THE DECISION OF THIS AND OTHER COURTS HAVE RECOGNIZED NO
SUBSTANTIAL DISTINCTION BETWEEN DIRECTORS, FOR EXAMPLE, AND OFFICERS OR
MANAGING EMPLOYEES WITH RESPECT TO THE OBLIGATION OF LOYAL AND
DISINTERESTED SERVICE.  "SINCE THE OFFICERS AND DIRECTORS OCCUPY
FIDUCIARY POSITIONS DURING THIS (REORGANIZATION) PERIOD, THEIR ACTIONS
ARE TO BE HELD TO A HIGHER STANDARD THAN THAT IMPOSED UPON THE GENERAL
INVESTING PUBLIC."  SECURITIES & EXCHANGE COMM'N V. CHENERY CORP., 332
U.S. 194, 208.  SEE ALSO PEPPER V. LITTON, 308 U.S. 295, 306; IN RE LOS
ANGELES LUMBER PRODS.  CO., 37 F. SUPP. 708. 

THE POLICIES UNDERLYING CHAPTER X AND SEC. 249 ITSELF SUGGEST TWO
FURTHER REASONS FOR NOT RECOGNIZING SUCH A DISTINCTION.  FIRST, IF THE
CLASS OF "FIDUCIARIES" OR "REPRESENTATIVES" WHOSE TRADING IS REGULATED
BY SEC. 249 WAS MEANT TO COMPREHEND ONLY REORGANIZATION COMMITTEES,
ATTORNEYS, TRUSTEES AND THE LIKE, THE ENACTMENT WOULD HAVE BEEN
SUPERFLUOUS IN VIEW OF THE FIDUCIARY STANDARD TO WHICH THEY WERE
ALREADY BOUND UNDER SETTLED PRINCIPLES OF EQUITY.  EVEN BEFORE THE
CHANDLER ACT A COMMITTEE MEMBER OR DOMINANT SHAREHOLDER WHO PROFITED
FROM INSIDE INFORMATION DURING A REORGANIZATION WAS NO MORE ENTITLED TO
COMPENSATION FOR HIS SERVICES THAN THE TRUSTEE OF A PRIVATE TRUST WHO
COMPROMISED HIS LOYALTY.  CF. WEIL V. NEARY, SUPRA.  WE HAVE SAID THAT
THE INHERENT EQUITY POWER OF THE BANKRUPTCY COURT "EMBRACES DENIAL OF
COMPENSATION TO THOSE WHO HAVE PURCHASED OR SOLD SECURITIES DURING OR
IN CONTEMPLATION OF THE PROCEEDINGS."  AMERICAN UNITED MUTUAL LIFE INS.
CO. V. AVON PARK, SUPRA, AT 147.  WE CAN ONLY CONCLUDE THEREFORE THAT
SEC. 249 WAS MEANT TO BROADEN THE CLASSES OF FIDUCIARIES TO BE
SUBJECTED TO THIS TRADITIONAL SANCTION. 

SECOND, TO DEFINE "FIDUCIARY" IN SEC. 249 AS NARROWLY AS HAS THE
COURT OF APPEALS WOULD INVITE A FORM OF EVASION AND CIRCUMVENTION WHICH
COULD READILY DEFEAT THE WHOLE PURPOSE OF THE STATUTE'S PROPHYLACTIC
RULE.  IF ONLY A DIRECTOR OR CORPORATE ATTORNEY WERE DISQUALIFIED FROM
TRADING DURING THE REORGANIZATION, HOW EASILY A DIRECTOR-OFFICER COULD
AVOID THE BAN BY RELINQUISHING HIS DIRECTORSHIP WHILE RETAINING HIS
OFFICE AND THEREFORE HIS ACCESS TO INSIDE INFORMATION.  IN OTHER WORDS,
THE MERE SHIFTING OF TITLES COULD ENABLE THE VERY CLASS AT WHICH THE
REGULATION WAS DIRECTED TO AVOID ITS PROHIBITIONS.  CONGRESS PLAINLY
DID NOT INDULGE IN AN EXERCISE IN FUTILITY IN ENACTING SEC. 249. 

IN TERMS OF THE PURPOSES AND THE UNDERLYING POLICIES OF SEC. 249
THERE IS THERFORE NO JUSTIFICATION FOR THE COURT OF APPEALS'
CONSTRUCTION EXEMPTING WEINSTEIN AND FRIED.  WE TURN NOW TO THE PARSING
OF THE PROVISIONS OF THE BANKRUPTCY ACT BY WHICH THE COURT OF APPEALS
REACHED ITS CONCLUSION. 
II. 

ARTICLE XIII OF CHAPTER X, OF WHICH SEC. 249 IS A PART, PROVIDES
GENERALLY FOR MATTERS OF "COMPENSATION ALLOWANCES."  SECTIONS 241, 242
AND 243 AUTHORIZE THE BANKRUPTCY COURT TO ALLOW REIMBURSEMENT AND
COMPENSATION TO THE PERSONS SPECIFICALLY NAMED IN THOSE SECTIONS. 

THE COURT OF APPEALS CONCLUDED THAT THE PROHIBITIONS OF SEC. 249
APPLY ONLY TO THOSE PERSONS NAMED IN SECS. 241-243, WHO ARE REQUIRED TO
APPLY TO THE COURT FOR COMPENSATION OR REIMBURSEMENT UNDER SEC. 247. 
THE COURT OF APPEALS REASONED FROM THE LOCATION OF SEC. 249 WITHIN THE
ARTICLE THAT ONLY THE "STRANGERS" TO THE CORPORATION MENTIONED IN SECS.
241, 242 AND 243, WHOSE SERVICES WOULD NOT HAVE BEEN RENDERED BUT FOR
THE REORGANIZATION, AND WHO COULD NOT THEREFORE HAVE BEEN COMPENSATED
WITHOUT JUDICIAL APPROVAL, COULD BE TAKEN TO BE WITHIN SEC. 249.  THE
COURT BUTTRESSED THIS READING BY REFERENCE TO DISTINCT AND SEPARATE
EMPLOYEES. 

OUR READING OF THE SAME SECTIONS LEADS US TO THE CONTRARY CONCLUSION;
IN OUR VIEW THEY SUPPORT OUR BROADER READING OF SEC. 249.  FIRST, IT IS
SIGNIFICANT THAT THE COVERAGE OF SEC. 249 IS DEFINED IN TERMS QUITE
UNLIKE THOSE OF THE EARLIER SECTIONS OF THE ARTICLE.  WHILE SECS. 241
243 AND SEC. 247 DETAIL WITH CARE THE CLASSES OF PERSONS TO WHOM
COMPENSATION IS TO BE ALLOWED AND BY WHOM APPLICATION IS TO BE MADE,
SEC. 249 SPEAKS GENERALLY OF "ANY COMMITTEE OR ATTORNEY, OR OTHER
PERSON ACTING IN THE PROCEEDINGS IN A REPRESENTATIVE OR FIDUCIARY
CAPACITY  ...  ."  HAD THE CONGRESS MEANT THE COVERAGE OF THIS SECTION
TO BE COEXTENSIVE WITH THAT OF ITS PREDECESSORS IN THE ARTICLE, IT
WOULD PRESUMABLY EITHER HAVE REFERRED EXPRESSLY TO THE EARLIER SECTIONS
AS THE GUIDELINES FOR SEC. 249, OR WOULD HAVE ENUMERATED THE SAME
GROUPS AGAIN IN ESSENTIALLY THE SAME TERMS.  THAT THE DRAFTSMEN OF SEC.
249 USED NEITHER READILY AVAILABLE APPROACH SUGGESTS THAT THE
SUPERINTENDENCE OF SEC. 249 WAS MEANT TO TRANSCEND THE BOUNDS OF THE
ARTICLE. 

FURTHER PARSING OF THE STATUTE REINFORCES THIS CONCLUSION.  THERE IS,
FOR EXAMPLE, NO MENTION IN SECS. 241-243 OR SEC. 247 OF THE DIRECTORS
OF THE DEBTOR CORPORATION.  YET THERE SEEMS LITTLE DOUBT THAT
DIRECTORS, WHO ARE FIDUCIARIES EVEN OF A SOLVENT CORPORATION AND ITS
SHAREHOLDERS, MAY BE BROUGHT WITHIN THE PROHIBITIONS OF SEC. 249 IF
THEY TRADE IN THE DEBTOR'S STOCK.  SEE IN RE LOS ANGELES LUMBER PRODS. 
CO., SUPRA, AT 711.  ON THE OTHER HAND, IT IS NOT ENTIRELY CORRECT TO
SAY THAT ARTICLE XIII AUTHORIZES ALLOWANCES ONLY FOR "STRANGERS" WHOSE
SERVICES WOULD NEITHER HAVE BEEN RENDERED NOR BECOME COMPENSABLE SAVE
FOR THE REORGANIZATION.  BOTH THE INDENTURE TRUSTEE AND THE ATTORNEY
FOR THE DEBTOR ARE, FOR EXAMPLE, EXPRESSLY NAMED AS ARTICLE XIII
APPLICANTS, REQUIRED UNDER SEC. 247 TO SEEK COMPENSATION, AT LEAST FOR
SERVICES PURSUANT TO THE REORGANIZATION.  NEITHER CAN PROPERLY BE
CONSIDERED A "STRANGER" WHOSE RELATIONSHIP TO AND SERVICES FOR THE
CORPORATION ARISE SOLELY OUT OF THE PETITION FOR REORGANIZATION. 

WE TURN NEXT TO THE ARGUMENT THAT SEC. 249 CANNOT HAVE BEEN INTENDED
TO EMBRACE OFFICERS AND EMPLOYEES IN LIGHT OF CERTAIN PROVISIONS
CONCERNING THEIR COMPENSATION IN ARTICLE VIII.  SECTION 191, FOR
EXAMPLE, AUTHORIZES THE DEBTOR IN POSSESSION TO "EMPLOY OFFICERS OF THE
DEBTOR AT RATES OF COMPENSATION TO BE APPROVED BY THE COURT."  THE
SUGGESTION IS THAT ONCE THE COURT HAS APPROVED A RATE OF COMPENSATION
UNDER THAT SECTION, SUCH APPROVAL MUST BE TAKEN TO IMMUNIZE THE OFFICER
FROM THE SANCTIONS OF SEC. 249.  WE CANNOT ACCEPT THAT SUGGESTION, FOR
SURELY THERE ARE VARIOUS FORMS OF DISLOYALTY OR CONFLICT OF INTEREST
WHICH WOULD DISENTITLE AN OFFICER TO COMPENSATION UNDER GENERAL
PRINCIPLES OF EQUITY AND QUITE WITHOUT REGARD TO ANY STATUTORY
PROHIBITION.  (FN13) 

THE APPROVAL OF AN OFFICER'S RATE OF COMPENSATION DOES NOT CONFER AN
IMMUNITY FROM EQUITABLE SANCTIONS, NOR CAN IT IMMUNIZE HIM FROM SEC.
249.  SECTION 191 DOES NO MORE THAN VEST THE COURT WITH ADDITIONAL
AUTHORITY TO PASS IN ADVANCE UPON THE QUALIFICATIONS AND THE SALARY OF
AN OFFICER OF THE DEBTOR BEFORE HE ASSUMES OR CONTINUES IN OFFICE. 
THERE IS NO SUGGESTION IN THAT SECTION OR ELSEWHERE THAT SUCH APPROVAL
WAS INTENDED TO DIMINISH IN ANY WAY THE COURT'S STATUTORY POWERS OVER
FEES AND ALLOWANCES CONFERRED BROADLY BY THE CHANDLER ACT.  THAT
OFFICERS AND OTHER EMPLOYEES MAY RECEIVE THEIR COMPENSATION ON A WEEKLY
OR MONTHLY BASIS WHILE OTHER PERSONS SUBJECT TO SEC. 249, SUCH AS
ATTORNEYS AND TRUSTEES, CUSTOMARILY SERVE WITHOUT COMPENSATION UNTIL
THE CONCLUSION OF THE PROCEEDING, IS A DIFFERENCE WITHOUT LEGAL
SIGNIFICANCE IN THIS CONTEXT.  (FN14)  THE APPLICATION OF SEC. 249
TURNS NOT UPON THE MANNER IN WHICH, OR THE TIME AT WHICH, PAYMENT IS
MADE, BUT RATHER UPON THE NATURE OF THE SERVICES AND RESPONSIBILITIES
WHICH ARE BEING COMPENSATED. 

CONSIDERATION OF THE FUNCTION AND RESPONSIBILITY OF THE OFFICERS OF A
DEBTOR CORPORATION LEFT IN POSSESSION ALSO SUPPORTS OUR CONSTRUCTION. 
THE CONCEPT OF LEAVING THE DEBTOR IN POSSESSION, AS A "RECEIVERSHIP
WITHOUT A RECEIVER," (FN15) WAS DESIGNED TO OBVIATE THE NEED TO APPOINT
A TRUSTEE FOR THE SUPERVISION OF EVERY SMALL CORPORATION UNDERGOING
REORGANIZATION, EVEN THOUGH IT APPEARED CAPABLE OF CARRYING ON THE
BUSINESS DURING THE PROCEEDING.  CONTINUED POSSESSION BY THE DEBTOR,
AUTHORIZED BY SEC. 156, IS SUBJECT AT ALL TIMES TO JUDICIAL TERMINATION
AND THE APPOINTMENT OF A DISINTERESTED TRUSTEE UNDER SEC. 159.  BUT SO
LONG AS THE DEBTOR REMAINS IN POSSESSION, IT IS CLEAR THAT THE
CORPORATION BEARS ESSENTIALLY THE SAME FIDUCIARY OBLIGATION TO THE
CREDITORS AS DOES THE TRUSTEE FOR THE DEBTOR OUT OF POSSESSION.  (FN16)
MOREOVER, THE DUTIES WHICH THE CORPORATE DEBTOR IN POSSESSION MUST
PERFORM DURING THE PROCEEDING ARE SUBSTANTIALLY THOSE IMPOSED UPON THE
TRUSTEE, SEC. 188.  IT IS EQUALLY APPARENT THAT IN PRACTICE THESE
FIDUCIARY RESPONSIBILITIES FALL NOT UPON THE INANIMATE CORPORATION, BUT
UPON THE OFFICERS AND MANAGING EMPLOYEES WHO MUST CONDUCT THE DEBTOR'S
AFFAIRS UNDER THE SURVEILLANCE OF THE COURT, (FN17) SECS. 188-191.  IF,
THEREFORE - AS SEEMS BEYOND DISPUTE FROM THE VERY TERMS OF THE STATUTE
THE TRUSTEE IS HIMSELF A FIDUCIARY WITHIN THE MEANING OF SEC. 249,
LOGIC AND CONSISTENCY WOULD CERTAINLY SUGGEST THAT THOSE WHO PERFORM
SIMILAR TASKS AND INCUR LIKE OBLIGATIONS TO THE CREDITORS AND
SHAREHOLDERS SHOULD NOT BE TREATED DIFFERENTLY UNDER THE STATUTE FOR
THIS PURPOSE.  (FN18) 

THE FOREGOING DISCUSSION ANSWERS TWO FURTHER ARGUMENTS GROUNDED ON
STATUTORY CONSTRUCTION.  FIRST, IT HAS BEEN CONTENDED THAT OFFICERS AND
MANAGING EMPLOYEES MUST BE DEEMED TO BE OUTSIDE SEC. 249 BECAUSE THEIR
COMPENSATION DERIVES FROM "CONSENSUAL ARRANGEMENTS" AND BECAUSE THEY
WERE COMPENSATED BEFORE THE FILING OF THE PETITION FOR THE VERY
SERVICES THEY CONTINUE TO PERFORM THEREAFTER.  THE SUGGESTION
OVERLOOKS, WITH RESPECT TO OFFICERS AT LEAST, THE REQUIREMENT IMPOSED
BY SEC. 191 OF JUDICIAL APPROVAL NOT ONLY OF SALARY BUT OF THE HOLDING
OF OFFICE ITSELF.  MORE IMPORTANT, AS TO BOTH OFFICERS AND MANAGING
EMPLOYEES, THE SUGGESTION FAILS TO APPRECIATE THE CHANGE WHICH THE
FILING OF THE PETITION AND JUDICIAL APPROVAL OF THE DEBTOR'S REMAINING
IN POSSESSION NECESSARILY CAUSE IN THE OBLIGATIONS, IF NOT IN THE DAY
TO-DAY ACTIVITIES OF ALL RESPONSIBLE OFFICIALS.  THE DIFFERENCE IN AN
OFFICER'S STATUS AND RESPONSIBIILITIES BEFORE AND AFTER THE START OF A
REORGANIZATION IS MOST CLEARLY REFLECTED IN THE SEC. 191 REQUIREMENT OF
JUDICIAL APPROVAL UPON WHICH AN OFFICER'S OR DIRECTOR'S CONTINUED
SERVICE IS CONTINGENT.  THE BROADER PRINCIPLE WHICH UNDERLIES THAT
REQUIREMENT AND EMPHASIZES THE CHANGE IN RESPONSIBILITY IS THAT THE
COURT'S WILLINGNESS TO LEAVE THE DEBTOR IN POSSESSION IS PREMISED UPON
AN ASSURANCE THAT THE OFFICERS AND MANAGING EMPLOYEES CAN BE DEPENDED
UPON TO CARRY OUT THE FIDUCIARY RESPONSIBILITIES OF A TRUSTEE.  AND IF
THEY DEFAULT IN THIS RESPECT, THE COURT MAY AT ANY TIME REPLACE THEM
WITH AN APPOINTED TRUSTEE. 

FINALLY, IT IS SUGGESTED THAT IMPORTANT DIFFERENCES BETWEEN "WHAT IS
DEMANDED OF A TRUSTEE AND WHAT IS EXPECTED OF OFFICERS OF A DEBTOR IN
POSSESSION" REQUIRE THE OMISSION OF THE LATTER FROM SEC. 249.  296
F.2D, AT 683.  THE ARGUMENT PROVES TOO MUCH, FOR SURELY THE
PROHIBITIONS OF SEC. 249 COVER PERSONS OTHER THAN THE TRUSTEE - VARIOUS
GROUPS SUCH, AT THE LEAST, AS THOSE LISTED IN SECS. 241-243, WHO ARE
HELD TO A FIDUCIARY STANDARD ALTHOUGH, UNLIKE THE TRUSTEE HIMSELF, THEY
NEED NOT BE "DISINTERESTED" WITHIN THE MEANING OF SEC. 158(1).  THAT
THE OFFICERS OF A DEBTOR IN POSSESSION ARE NOT "TRUSTEES" FOR ALL
PURPOSES IS BEYOND DISPUTE, BUT THAT PROPOSITION DOES NOT PROVIDE AN
ANSWER TO THE QUESTION BEFORE US - WHICH OF THOSE PERSONS WHO ARE NOT
DISINTERESTED AND COULD NOT THEREFORE SERVE AS TRUSTEES UNDER SEC. 156
MAY NONETHELESS BE REGARDED AS FIDUCIARIES WITHIN THE MEANING OF SEC.
249. 

IN CONCLUDING AS WE DO THAT AN OFFICER OR A MANAGING EMPLOYEE OF A
DEBTOR IN POSSESSION MAY BE A FIDUCIARY FOR PURPOSES OF SEC. 249, WE DO
NOT MEAN TO SUGGEST THAT ONE WHO HOLDS SUCH A POSITION IS NECESSARILY
WITHIN THAT SECTION.  THAT QUESTION REQUIRES IN EACH CASE A CAREFUL
EXAMINATION OF THE NATURE OF THE PARTICULAR APPLICANT'S ACTIVITIES,
POWERS AND RESPONSIBILITIES IN CONNECTION WITH THE REORGANIZATION.  AS
TO CERTAIN CLASSES OF PARTICIPANTS - COMMITTEE MEMBERS AND ATTORNEYS,
FOR EXAMPLE - THE VERY TERMS OF SEC. 249 CLEARLY MAKE ITS SANCTIONS
APPLICABLE.  AS TO OTHER GROUPS - SALARIED EMPLOYEES WHO TAKE NO PART
IN THE MANAGEMENT OF THE DEBTOR, FOR INSTANCE - IT MAY BE EQUALLY CLEAR
THAT SEC. 249 WAS NOT MEANT TO IMPOSE ANY BAN ON TRADING IN THE
DEBTOR'S STOCK.  BUT IN THE CASE OF AN OFFICER OR MANAGERIAL EMPLOYEE,
THE QUESTION WHETHER THE PARTICULAR APPLICANT IS A "FIDUCIARY" UNDER
THE STATUTE IS ONE WHICH REQUIRES CAREFUL APPRAISAL OF THE RELEVANT
FACTS.  (FN19)

IN THIS CASE THE DISTRICT COURT TOOK EVIDENCE CONCERNING BOTH FRIED'S
AND WEINSTEIN'S ACTIVITIES AND RESPONSIBILITIES, AND CONCLUDED THAT
EACH WAS FOR THESE PURPOSES A "FIDUCIARY."  UNLESS THE DISTRICT COURT
ERRONEOUSLY INTERPRETED THE STATUTE, WHICH WE HAVE HELD IT DID NOT, ITS
FINDINGS AS TO THE STATUS OF THE RESPONDENTS SHOULD BIND OUR REVIEW OF
THE CASE.  SINCE THERE WAS AMPLE EVIDENCE TO SUPPORT THOSE FINDINGS,
AND THE COURT OF APPEALS DID NOT QUESTION THEM, SEC. 249 APPLIES TO
WEINSTEIN AND FRIED. 

              III. 

BUT THE BARE HOLDING THAT SEC. 249 HAS BEEN VIOLATED DOES NOT
AUTOMATICALLY DETERMINE THE CONSEQUENCES OF SUCH A VIOLATION.  WE TURN
NOW TO THAT ASPECT OF THE CASE.  THERE IS NO DOUBT THAT PROOF OF
TRADING IN CONTRAVENTION OF THE STATUTE REQUIRES AT LEAST THE DENIAL OF
ANY APPLICATION FOR PAST COMPENSATION THEN PENDING, AND THE
DISALLOWANCE OF ALL FUTURE COMPENSATION.  (FN20)  THE DISTRICT COURT
WENT SO FAR BUT DECLINED TO GO FURTHER.  WE MUST NOW CONSIDER WHETHER
THE DISTRICT COURT WAS ALSO REQUIRED, IN ORDER FULLY TO EFFECTUATE THE
POLICIES OF SEC. 249, TO ORDER RESTITUTION OR RECOUPMENT OF SALARIES
ALREADY RECEIVED BY FRIED AND WEINSTEIN FOR THEIR BENEFICIAL SERVICES
TO THE DEBTOR.  AS WE HAVE OBSERVED, THE FACT THAT THESE SALARIES HAVE
ALREADY BEEN PAID UNDER APPROVAL OF THE COURT DOES NOT NECESSARILY
PRECLUDE THEIR RECOUPMENT. 

IT IS ARGUED, HOWEVER, THAT TO REQUIRE RESTITUTION AT THIS LATE DATE,
PARTICULARLY WHEN THE TRADING INVOLVED SMALL AMOUNTS OF STOCK AND WAS
CARRIED ON APPARENTLY IN GOOD FAITH AND WITHOUT KNOWLEDGE OF THE
EXISTENCE OF SEC. 249, IMPOSES AN UNDULY HARSH SANCTION - A REMEDY
DISPROPORTIONATE TO THE OFFENSE.  WHILE WE RECOGNIZE THAT IN A CASE
SUCH AS THIS THE REMEDY IS INDEED A SEVERE ONE, WE CANNOT FIND THAT
CONGRESS INTENDED ANYTHING LESS.  TO HOLD THAT ONE WHO TRADES IN
VIOLATION OF SEC. 249 FORFEITS ONLY HIS RIGHT TO FUTURE COMPENSATION
WOULD PLACE A PREMIUM ON CONCEALMENT OF TRANSACTIONS IN THE DEBTOR'S
STOCK AND THEREBY JEOPARDIZE THE SALUTARY POLICIES OF THE STATUTE. 
MOREOVER, IT IS WELL SETTLED THAT WHEN THE QUESTION ARISES IN A
TERMINAL APPLICATION FOR COMPENSATION OR REIMBURSEMENT UNDER SEC. 247,
AN APPLICANT WHO HAS ENGAGED IN FORBIDDEN TRANSACTIONS NEAR THE END OF
THE PROCEEDING IS TO BE DENIED COMPENSATION FOR ALL SERVICES HE HAS
RENDERED TO THE DEBTOR, HOWEVER VALUABLE THOSE SERVICES MAY HAVE BEEN. 
(FN21)  THUS THE POLICIES OF THE STATUTE AFFORD NO ALTERNATIVE BUT TO
ORDER THE RESTITUTION OF ALL AMOUNTS OF COMPENSATION AND REIMBURSEMENT
RECEIVED BY THESE RESPONDENTS SINCE THE START OF THE REORGANIZATION. 

IF THE REMEDY SEEMS HARSH IN THIS CASE, IT IS WHOLLY CONSISTENT WITH
THE UNIFORM APPLICATION OF THIS STATUTE BY THE LOWER COURTS.  AS THE
COURT OF APPEALS FOR THE SECOND CIRCUIT HAS RECOGNIZED IN AN EARLIER
CASE "THIS RESULT MAY WELL WORK HARSHLY IN INDIVIDUAL CASES  ...  .
BUT IN SEC. 249 OF THE BANKRUPTCY ACT CONGRESS CLEARLY INTENDED DRASTIC
RESULTS AND THOUGHT THEM NECESSARY TO ELIMINATE THE SERIOUS ABUSES OF
INSIDER INFORMATION WHICH HAD LONG BEEN EXISTENT IN EQUITY
REORGANIZATIONS ...  .  IN THE PAST EXCUSES OF INADVERTENCE OR DE
MINIMIS HAVE NOT BEEN PERMITTED TO UNDERMINE THE SECTION  ...  ." 
SURFACE TRANSIT, INC., V. SAXE, BACON & O'SHEA, 266 F.2D 862, 868
(C.A.2D CIR.). THE LOWER FEDERAL COURTS HAVE UNIFORMLY FOUND IT
IMMATERIAL TO THE APPLICATION OF SEC. 249, FOR EXAMPLE, THAT THE EXTENT
OF TRADING MAY HAVE BEEN MINIMAL; THAT THE APPLICANT MAY NEVER HAVE
REALIZED THE PROFIT FROM THE TRANSACTION, OR MAY ACTUALLY HAVE SUFFERED
A LOSS; THAT THE TRADING MAY HAVE BEEN DONE IN RESPONSE TO A PERSONAL
OR CORPORATE EMERGENCY; OR THAT THE APPLICANT MAY NEITHER HAVE
POSSESSED NOR ATTEMPTED TO ACQUIRE INSIDE INFORMATION BEARING ON THE
VALUE OF THE DEBTOR'S STOCK.  (FN22)  IN LIGHT OF THE SERIOUSNESS OF
THE ABUSES WHICH THE STATUTE WAS DESIGNED TO PREVENT, IT HAS BEEN
THOUGHT THAT TO ALLOW ANY SUCH EXCEPTION OR DISPENSATION WOULD
FRUSTRATE THE MANIFEST INTENT OF CONGRESS TO IMPOSE AN EFFECTIVE
PROPHYLACTIC RULE.  (FN23)  THAT THE RULE OCCASIONALLY BARS
COMPENSATION TO THOSE WHOSE CONDUCT MIGHT NOT HAVE BEEN CONSIDERED
INEQUITABLE OR DISLOYAL IN THE ABSENCE OF SUCH A STATUTE IS NO REASON
TO SUSPEND OR MAKE SELECTIVE THE OPERATION OF THE STATUTE'S SANCTIONS. 
WE DO NOT AGREE, HOWEVER, THAT A VIOLATION OF SEC. 249 OF ITSELF
REQUIRES THE DISCHARGE OF THE VIOLATOR FROM HIS CORPORATE OFFICE. 
WHILE A BANKRUPTCY COURT POSSESSES EXTENSIVE POWER OVER THE TENURE AND
THE CONDUCT OF OFFICERS AND EMPLOYEES, AND MIGHT FIND THAT TRADING
DURING THE REORGANIZATION RENDERED AN OFFICER UNFIT FOR FURTHER SERVICE
TO THE DEBTOR, EVEN WITHOUT COMPENSATION, THAT RESULT DOES NOT FOLLOW
INEXORABLY.  (FN24)  IN THE PRESENT CASE THE DISTRICT COURT APPARENTLY
RELIEVED FRIED AND WEINSTEIN OF THEIR CORPORATE RESPONSIBILITIES SOLELY
BECAUSE OF THE VIOLATION OF SEC. 249.  THE COURT OF APPEALS, FINDING NO
VIOLATION, SAW NO OCCASION TO DETERMINE WHETHER THE DISCHARGE OF THE
RESPONDENTS MIGHT NEVERTHELESS BE JUSTIFIED BY CONSIDERATIONS OUTSIDE
THAT SECTION. 

THE QUESTION OF THE BANKRUPTCY COURT'S POWER TO REMOVE A CORPORATE
OFFICER IS A DIFFICULT AND COMPLEX ONE, IN WHICH STATE AND FEDERAL LAW
MAY BE INTRICATELY INTERWOVEN.  (FN25)  WE THEREFORE INTIMATE NO VIEW
CONCERNING EITHER THE COURT'S POWERS WITH RESPECT TO THE REMOVAL OF AN
OFFICER, OR THE PROPRIETY OF EXERCISING IN THIS CASE WHATEVER POWERS
MAY EXIST.  THAT QUESTION MUST BE RECONSIDERED BY THE COURTS BELOW IN
THE LIGHT OF OUR HOLDING THAT THE CONDUCT OF THE RESPONDENTS DID
CONSTITUTE A VIOLATION OF SEC. 249 WHICH DISENTITLES THEM TO ALL
COMPENSATION. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF
APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  11 U.S.C. SEC. 649: 

"ANY PERSONS SEEKING COMPENSATION FOR SERVICES RENDERED OR
REIMBURSEMENT FOR COSTS AND EXPENSES INCURRED IN A PROCEEDING UNDER
THIS CHAPTER SHALL FILE WITH THE COURT A STATEMENT UNDER OATH SHOWING
THE CLAIMS AGAINST, OR STOCK OF, THE DEBTOR, IF ANY, IN WHICH A
BENEFICIAL INTEREST, DIRECT OR INDIRECT, HAS BEEN ACQUIRED OR
TRANSFERRED BY HIM OR FOR HIS ACCOUNT, AFTER THE COMMENCEMENT OF SUCH
PROCEEDING.  NO COMPENSATION OR REIMBURSEMENT SHALL BE ALLOWED TO ANY
COMMITTEE OR ATTORNEY, OR OTHER PERSON ACTING IN THE PROCEEDINGS IN A
REPRESENTATIVE OR FIDUCIARY CAPACITY, WHO AT ANY TIME AFTER ASSUMING TO
ACT IN SUCH CAPACITY HAS PURCHASED OR SOLD SUCH CLAIMS OR STOCK, OR BY
WHOM OR FOR WHOSE ACCOUNT SUCH CLAIMS OR STOCK HAVE, WITHOUT THE PRIOR
CONSENT OR SUBSEQUENT APPROVAL OF THE JUDGE, BEEN OTHERWISE ACQUIRED OR
TRANSFERRED."  THIS PROVISION WAS ADDED BY THE CHANDLER ACT OF JUNE 22,
1938, C. 575, 52 STAT. 901. 

FN2  THE PETITION ON WHICH THE DISTRICT COURT'S ORDER WAS BASED
ALLEGED THAT IN 1958 AND 1959 WEINSTEIN (WHO WAS STILL A DIRECTOR AND
OFFICER OF THE DEBTOR) HAD PURCHASED THREE SHARES AND SOLD A FRACTION
OF ONE, AND THAT IN 1959 HE OR PERSONS REPRESENTED BY HIM HAD EXERCISED
OPTIONS TO PURCHASE SIX SHARES.  IT WAS FURTHER ALLEGED THAT FRIED HAD
BOUGHT 20 SHARES IN 1957, OF WHICH HE HAD RESOLD 10 SHARES IN 1958. 
ALTHOUGH CONCEDING THAT HE HAD BOUGHT AND SOLD SECURITIES OF THE
DEBTOR, WEINSTEIN INSISTED BEFORE THE DISTRICT COURT THAT HE WAS
UNAWARE OF THE EXISTENCE OF SEC. 249, AND HAD BOUGHT THE STOCK ONLY TO
KEEP THE CORPORATION OUT OF THE CONTROL OF "RAIDERS," AND NOT FOR
PERSONAL PROFIT.  FRIED ALSO ADMITTED THE ALLEGED TRANSACTIONS, BUT
MAINTAINED THAT HE HAD BEEN MOTIVATED NEITHER BY INSIDE INFORMATION NOR
BY ANY IMPROPER MOTIVE TO USE HIS CORPORATE POSITION TO ENHANCE HIS
TRADING. 

FN3  AT THE TIME OF FILING OF THE PETITION, WEINSTEIN WAS BOTH A
DIRECTOR OF THE DEBTOR AND ITS PRESIDENT.  FRIED HAD PREVIOUSLY BEEN A
DIRECTOR AND SECRETARY-TREASURER, BUT RESIGNED THOSE POSTS BEFORE THE
FILING OF THE PETIION, AND CONTINUED TO HOLD ONLY THE POSITION OF
GENERAL MANAGER, APPARENTLY NOT AN OFFICE PROVIDED FOR IN THE
CORPORATION'S CHARTER.  THE COURT ORIGINALLY AUTHORIZED PAYMENT OF A
SALARY OF $100 WEEKLY TO FRIED, AND NOTHING TO WEINSTEIN.  LATER
FRIED'S SALARY WAS INCREASED TO $150 AND EVENTUALLY TO $200 WEEKLY,
WHILE PROVISION WAS MADE FOR PAYMENT OF $50 WEEKLY TO WEINSTEIN.  THE
DISTRICT COURT'S ORDERS WITH RESPECT TO WEINSTEIN WERE APPARENTLY MADE
PURSUANT TO SEC. 191 OF THE ACT, 11 U.S.C. SEC. 591, WHICH PERMITS A
DEBTOR IN POSSESSION TO "EMPLOY OFFICERS OF THE DEBTOR AT RATES OF
COMPENSATION TO BE APPROVED BY THE COURT."  SINCE FRIED WAS NOT AN
OFFICER OF THE DEBTOR, BUT MERELY A SALARIED EMPLOYEE, EXPLICIT
JUDICIAL APPROVAL OF HIS CONTINUED EMPLOYMENT AND SALARY MAY NOT HAVE
BEEN REQUIRED.  CF. IN RE WIL-LOW CAFETERIAS, 111 F.2D 429, 431. 

FN4  SINCE WEINSTEIN WAS BOTH AN OFFICER AND A DIRECTOR OF THE DEBTOR
AND HAD CONCEDED ON CROSS-EXAMINATION THAT HE WAS A "FIDUCIARY," NO
FURTHER INQUIRY CONCERNING HIS CORPORATE FUNCTION WAS NECESSARY,
ALTHOUGH THE DISTRICT COURT DID PROBE THE NATURE AND EXTENT OF HIS
SERVICES.  THE COURT DID, HOWEVER, EXAMINE FRIED AT SOME LENGTH
CONCERNING THE NATURE OF HIS POWERS AND RESPONSIBILITIES IN THE
MANAGEMENT OF THE DEBTOR'S BUSINESS, AND CONCLUDED: 

"  ...  YOU WERE SUBSTANTIALLY MORE THAN A MERE EMPLOYEE.  YOU WERE
NO COP IN THE PARKING LOT.  YOU RAN THE BUSINESS WHILE MR. WEINSTEIN
WASN'T THERE.  AS YOU ADMITTED, YOU OPERATED THE BUSINESS AND MANAGED
THE PROPERTY OF THE DEBTOR.  THE FACT THAT YOU CONSULTED AND GOT
APPROVAL FROM THE DIRECTORS DOES NOT DIMINISH YOUR STATUS IN THE
STRUCTURE OF THE DEBTOR.  YOU WERE THE MANAGING AGENT." 

FN5  THE DISTRICT COURT HELD THAT SEC. 189 OF THE BANKRUPTCY ACT, 11
U.S.C. SEC. 589, AUTHORIZING THE COURT TO SUPERVISE THE OPERATIONS OF A
DEBTOR IN POSSESSION, SUPPORTED THE ORDER ENTERED AT THE CLOSE OF THE
HEARINGS THAT "JEROME FRIED WILL BE DISCHARGED FROM THE DEBTOR'S EMPLOY
AT ONCE."  THE ORDER AS TO WEINSTEIN WAS THAT HE "SHALL HAVE NOTHING
FURTHER TO DO WITH THE OPERATION OF (THE DEBTOR'S)  ...  BUSINESS AND
AFFAIRS, AND MANAGEMENT OF ITS PROPERTY."  THE COURT ACKNOWLEDGED THAT
CONSISTENCY WOULD HAVE DICTATED THE REMOVAL OF WEINSTEIN FROM OFFICE,
"BUT I DON'T HAVE THAT POWER."   THE DISTRICT COURT ORDERED FURTHER
THAT NEITHER FRIED NOR WEINSTEIN SHOULD SERVE, EVEN IF WILLING TO DO
SO, WITHOUT COMPENSATION.  THE COURT OF APPEALS STAYED THIS PROVISION
OF THE ORDER PENDING DECISION OF THE APPEAL. 

FN6  SEE, E.G., S. DOC. NO. 268, 74TH CONG., 2D SESS. 59-63, WHICH
DETAILS CERTAIN ABUSES WITH RESPECT TO FEES AND ALLOWANCES ANTEDATING
THE ADOPTING OF SEC. 77B.  SEE ALSO SECURITIES EXCHANGE COMM'N, REPORT
ON THE STUDY AND INVESTIGATION OF THE WORK, ACTIVITIES, PERSONNEL AND
FUNCTIONS OF PROTECTIVE AND REORGANIZATION COMMITTEES, PT.  II, 348
373; PT. VIII, 221-231.  FURTHER BACKGROUND MATERIAL IS GIVEN IN 6
COLLIER, BANKRUPTCY (14TH ED. 1947), PARA. 13.18; BANDLER, SECURITIES
TRADING AND FEE SHARING UNDER CHAPTER X OF THE BANKRUPTCY ACT, 15
RECORD OF THE ASSN. OF THE BAR OF THE CITY OF NEW YORK 230-234 (1960). 

FN7  THERE IS MUCH EVIDENCE THAT ABUSES OF THIS KIND SURVIVED THE
ENACTMENT OF SEC.  77B.  SEE H.R. REP. NO. 1409, 75TH CONG., 1ST SESS.
37-38 (QUOTING STATEMENT OF COMMISSIONER WILLIAM O. DOUGLAS); TETON,
REORGANIZATION REVISED, 48 YALE L.J. 573, 591-592, 605 (1939);
DEVELOPMENTS IN THE LAW - REORGANIZATION UNDER SECTION 77B OF THE
BANKRUPTCY ACT - 1934-1936, 49 HARV. L. REV. 1111, 1201-1202 (1936);
MEDILL, FEES AND EXPENSES IN A CORPORATE REORGANIZATION UNDER SECTION
77B, 34 MICH. L. REV. 331, 363-364 (1936).  FOR THIS AND OTHER REASONS,
THE CHANDLER ACT ESTABLISHED A COMPREHENSIVE AND EXCLUSIVE SYSTEM OF
ALLOWANCES FOR SERVICES AND EXPENSES IN A REORGANIZATION, WHICH
PRECLUDES THE GRANTING OF ALLOWANCES NOT THEREIN PROVIDED FOR.  SEE
BROWN V. GERDES, SUPRA, LANE V. HAYTIAN CORP., 117 F.2D 216, 219. 

FN8  UNDER THE VERY GENERAL COMPENSATION AND ALLOWANCE PROVISIONS OF
SEC. 77B, FOR EXAMPLE, COURTS WERE UNCERTAIN WHETHER REMUNERATION COULD
BE PROVIDED TO STOCKHOLDERS WHO TOOK AN ACTIVE PART IN AND MADE
VALUABLE CONTRIBUTIONS TO THE REORGANIZATION.  THUS THE COURTS HAD
DIVIDED AS TO THE AVAILABILITY OF COMPENSATION OR REIMBURSEMENT TO THIS
AND OTHER INTERESTED CLASSES OF PARTICIPANTS.  SEE, E.G., 6 COLLIER,
BANKRUPTCY (14TH ED. 1947), PARA. 13.01.  SPECIFIC PROVISIONS OF
CHAPTER X SOUGHT TO RESOLVE THESE AMBIGUITIES BY ENUMERATING WITH SOME
PRECISION THE PARTICIPANTS TO WHOM ALLOWANCES WERE AVAILABLE, SECS. 241
243, 11 U.S.C. SEC. 641-643, AND THE PROCEDURE BY WHICH APPLICATION FOR
ALLOWANCES MUST BE MADE, SEC. 247, 11 U.S.C. SEC. 647.  SEE STEINBERG,
SALIENT FEATURES IN AWARDING ALLOWANCES IN CORPORATE REORGANIZATION
PROCEEDINGS AND THE ROLE OF THE SECURITIES AND EXCHANGE COMMISSION IN
THEIR FINAL DETERMINATION, 8 N.Y.L. FORUM, 253, 266 (1962); GERDES,
CORPORATE REORGANIZATIONS:  CHANGES EFFECTED BY CHAPTER X OF THE
BANKRUPTCY ACT, 52 HARV. L. REV. 1, 36-37 (1938). 

FN9  TO THE EFFECT THAT THE DRAFTSMEN OF SEC. 249 INTENDED TO CODIFY,
AND ALSO TO BROADEN THE SCOPE OF, THE PARAMOUNT-PUBLIX AND REPUBLIC GAS
RULE, SEE HEARINGS ON H.R. 6439, BEFORE THE HOUSE COMMITTEE ON THE
JUDICIARY, 75TH CONG., 1ST SESS. 184 (STATEMENT OF COMMISSIONER WILLIAM
O. DOUGLAS:  "WE VISUALIZED A LOT OF ADMINISTRATIVE DIFFICULTIES IN
DETERMINING IN A PARTICULAR CASE WHETHER OR NOT ACTUAL INSIDE
INFORMATION WAS USED, AND SO WE DECIDED THAT THE BEST PRACTICAL WAY OF
DOING IT WAS TO BROADEN THE BASE A LITTLE BIT AND ESTABLISH A RULE OF
THUMB AND FOLLOW THE PATTERN OF THE PARAMOUNT CASE AND THE REPUBLIC GAS
CASE").  SEE ALSO DOUGLAS, IMPROVEMENT IN FEDERAL PROCEDURE FOR
CORPORATE REORGANIZATIONS, 24 A.B.A.J. 875, 877 (1938); BRUDNEY,
INSIDER SECURITIES DEALINGS DURING CORPORATE CRISES, 61 MICH. L. REV.
1, 6-10 (1962). 

THE CHANDLER ACT CONTAINED ANOTHER PROVISION WHICH, ALTHOUGH LESS
EXPLICIT, WAS IN THE SAME VEIN.  SECTION 221(4), 11 U.S.C. SEC. 621(4),
PROVIDES THAT THE COURT SHALL CONFIRM A PLAN OF REORGANIZATION IF,
INTER ALIA, ALL PAYMENTS MADE OR PROMISED BY THE DEBTOR FOR SERVICES
AND EXPENSES IN CONNECTION WITH THE REORGANIZATION ARE "REASONABLE OR,
IF TO BE FIXED AFTER CONFIRMATION OF THE PLAN, WILL BE SUBJECT TO THE
APPROVAL OF THE JUDGE  ...  ."  THIS PROVISION WAS CARRIED OVER IN
SUBSTANCE FROM MORE GENERAL PROVISIONS OF SEC. 77B, AS A COMPANION TO
THE NEW AND MORE SPECIFIC PROVISIONS OF SEC. 249. 

FN10  SEVERAL COURTS HAVE SUGGESTED THAT A PARAMOUNT OBJECTIVE OF
SEC. 249 WAS TO CHECK THE MISUSE FOR PRIVATE GAIN OF INSIDE INFORMATION
OR CONTROL, TO WHICH THE POSITION OF A REPRESENTATIVE OR FIDUCIARY
GIVES HIM ACCESS.  SEE, E.G., OTIS & CO. V. INSURANCE BLDG. CORP., 110
F.2D 333, 335; FINN V. CHILDS CO., 181 F.2D 431, 441.  SEE GENERALLY
STEINBERG, SUPRA, NOTE 8, AT 265; FERBER, BLASBERG AND KATZ, CONFLICTS
OF INTEREST IN REORGANIZATION PROCEEDINGS UNDER THE PUBLIC UTILITY
HOLDING COMPANY OF ACT OF 1935 AND CHAPTER X OF THE BANKRUPTCY ACT, 28
GEO. WASH. L. REV. 319, 365-379 (1959); NOTE, CONFLICT OF INTERESTS AS
A FACTOR IN THE ALLOWANCE OF REPRESENTATIVES' CLAIMS IN INSOLVENT
CORPORATE REORGANIZATIONS, 106 U. OF PA. L. REV. 1139, 1160-1161
(1958); 63 HARV. L. REV. 1057-1058 (1950). 

FN11  THE COMMON ORIGINS AND PARALLEL PURPOSES OF SEC. 249 AND SEC.
16(B) OF THE SECURITIES EXCHANGE ACT HAVE BEEN OUTLINED IN 2 LOSS,
SECURITIES REGULATION (2D ED. 1961), 1124-1125.  SEE ALSO BRUDNEY,
SUPRA, NOTE 9, AT 8-10.  FOR ANALYSIS OF THE PARTICULAR POLICIES
UNDERLYING SEC. 16(B) WHICH REQUIRE A SIMILARLY PERVASIVE AND UNBENDING
RULE AGAINST CERTAIN FORMS OF INSIDER TRADING, SEE, E.G., ADLER V.
KLAWANS, 267 F.2D 840, 844; COOK AND FELDMAN, INSIDER TRADING UNDER THE
SECURITIES EXCHANGE ACT, 66 HARV. L. REV. 612, 622-623 (1953). 

FN12  SEVERAL COURTS HAVE SAID THAT OFFICERS, LIKE DIRECTORS, ARE TO
BE HELD TO A FIDUCIARY STANDARD DURING INSOLVENCY OR REORGANIZATION
WHICH MIGHT BEING THEM WITHIN THE PROHIBITIONS OF SEC. 249.  E.G.,
GOCHENOUR V. CLEVELAND TERMINALS BLDG. CO., 118 F.2D 89; IN RE JERSEY
MATERIALS CO., 50 F. SUPP. 428; IN RE LOS ANGELES LUMBER PRODS.  CO.,
46 F. SUPP. 77, 89; CF. IN RE PHILADELPHIA & W.R. CO., 64 F. SUPP. 738,
741.  SEE ALSO TETON, SUPRA, NOTE 7, AT 603; BRUDNEY, SUPRA, NOTE 9, AT
20; 6 COLLIER, BANKRUPTCY (14TH ED. 1947), PARA. 13.18, AT 4591-4592. 

THE DANGERS OF INSIDER TRADING OR MISUSE OF INFORMATION OR POSITION
ARE NOT THOUGHT TO BE AS APPLICABLE TO TRADING BY OFFICERS AND
DIRECTORS OF A SOLVENT CORPORATION NOT UNDER JUDICIAL SUPERINTENDENCE. 
CF. MANUFACTURERS TRUST CO. V. BECKER, 338 U.S. 304.  ALTHOUGH A
DIRECTOR, AT LEAST, IS HELD ALWAYS TO CERTAIN FIDUCIARY OBLIGATIONS
WHILE TRADING IN THE SHARES OF HIS CORPORATION, SEE CONANT, DUTIES OF
DISCLOSURE OF CORPORATE INSIDERS WHO PURCHASE SHARES, 46 CORNELL L.Q.
53 (1960), IT HAS BEEN SUGGESTED THAT IT MAY ACTUALLY BE ECONOMICALLY
DESIRABLE FOR OFFICERS AND DIRECTORS TO ACQUIRE A PROPRIETARY INTEREST
IN A SOLVENT CORPORATION.  SEE BERLE AND MEANS, THE MODERN CORPORATION
AND PRIVATE PROPERTY (1932), 122; NOTE, FIDUCIARY DUTY OF OFFICERS AND
DIRECTORS NOT TO COMPETE WITH THE CORPORATION, 54 HARV. L. REV. 1191,
1196-1197 (1941). 

FN13  SEE, E.G., IN RE MIDLAND UNITED CO., 159 F.2D 340, 345-346. 
THUS, EVEN WHERE THE PROHIBITIONS OF SEC. 249 ARE FOR ONE REASON OR
ANOTHER NOT APPLICABLE TO A PARTICULAR INSIDER TRANSACTION DURING
REORGANIZATION, BANKRUPTCY COURTS HAVE CONSISTENTLY RECOGNIZED THE
EXISTENCE OF INHERENT EQUITY POWER TO DISALLOW OR AT LEAST TO REDUCE
CLAIMS FOR COMPENSATION OR REIMBURSEMENT.  SEE IN RE COSGROVE-MEEHAN
COAL CORP., 136 F.2D 3, 6 (C.A. 3D CIR.); CHICAGO & WEST TOWNS RAILWAYS
V. FRIEDMAN, 230 F.2D 364 (C.A. 7TH CIR.); BERNER V. EQUITABLE OFFICE
BLDG. CORP., 175 F.2D 218 (C.A.2D CIR.).  SEE ALSO 2 LOSS, SECURITIES
REGULATION (2D ED. 1961), 1124-1125; NOTE, 106 U. OF PA. L. REV. 1139,
1155 (1958).    FN14  RESPONDENTS HAVE CONTENDED THAT SUBJECTING A
SALARIED EMPLOYEE TO THE PROVISIONS OF SEC. 249 WOULD IMPOSE
INSUPERABLE ADMINISTRATIVE PROBLEMS, BECAUSE THE EMPLOYEE WOULD BE
REQUIRED TO MAKE APPLICATION TO THE COURT AT THE END OF EACH PAY PERIOD
BEFORE PAYMENT OF HIS SALARY WOULD BE AUTHORIZED.  THE CONTENTION WOULD
HAVE MERIT ONLY IF OFFICERS AND EMPLOYEES WERE ALSO WITHIN THE CLASS OF
APPLICANTS TO WHOM THE REQUIREMENTS OF SEC. 247 APPLY; BUT SUCH A
RESULT IS NOT, FOR REASONS ALREADY DISCUSSED, INEVITABLE.  INDEED, THE
SALARY OF A NONOFFICER EMPLOYEE NEED NOT EVEN BE APPROVED IN ADVANCE OF
HIS EMPLOYMENT, IN RE WIL-LOW CAFETERIAS, 111 F.2D 429; AND WHILE THE
RATE OF COMPENSATION OF AN OFFICER MUST BE APPROVED INITIALLY UNDER
SEC. 191, NOTHING EITHER IN THAT SECTION OR IN SEC. 247 SUGGESTS THAT
WEEKLY OR MONTHLY APPLICATIONS FOR THE PAYMENT OF SALARY AT THAT RATE
ARE ALSO REQUIRED.  RATHER, EMPLOYEES AND OFFICERS RECEIVE COMPENSATION
DURING THE PROCEEDING SUBJECT TO WHATEVER FIDUCIARY OBLIGATIONS ARE
INCUMBENT UPON THEM, AND CONTINGENT UPON THEIR CONTINUED FULFILMENT OF
THOSE OBLIGATIONS. 

FN15  THE PHRASE WAS SUGGESTED BY SEC COMMISSIONER (LATER JUDGE)
JEROME FRANK, IN HEARINGS ON H.R. 8046 BEFORE A SUBCOMMITTEE OF THE
SENATE JUDICIARY COMMITTEE, 75TH CONG., 2D SESS. 99. 

FN16  SEE, E.G., IN RE AVORN DRESS CO., 78 F.2D 681, 683; IN RE LOS
ANGELES LUMBER PRODS.  CO., 46 F. SUPP. 77, 88; GERDES, CORPORATE
REORGANIZATIONS:  CHANGES EFFECTED BY CHAPTER X OF THE BANKRUPTCY ACT,
52 HARV. L. REV. 1, 18-19 (1938). 

FN17  SEE 6 COLLIER, BANKRUPTCY (14TH ED. 1947), 2441-2442.  CF.
SECURITIES AND EXCHANGE COMM'N, REPORT ON THE STUDY AND INVESTIGATION
OF THE WORK, ACTIVITIES, PERSONNEL AND FUNCTIONS OF PROTECTIVE AND
REORGANIZATION COMMITTESS, PT. I, 312-329, 868-872. 

FN18  ONE COMMENTATOR HAS OBSERVED OF THE COURT OF APPEALS' DECISION
IN THIS CASE:  "WHILE THE COURT CONCLUDED THAT  ...  THE RESPONDENTS
WERE NOT ACTING IN A FIDUCIARY CAPACITY FOR PURPOSES OF SEC. 249, IT
RECOGNIZED THAT SUCH PERSONS OWED FIDUCIARY OBLIGATIONS TO THE
CORPORATION WHICH EXTENDED TO THEIR DEALING IN ITS SECURITIES.  TO THE
EXTENT THAT THE COURT'S OPINION CAN BE READ TO SUGGEST ONLY SELECTIVE
ACCOUNTABILITY FOR PROFITS FROM SUCH TRANSACTIONS, IT IS AT ODDS WITH
THE RIGOROUS RULE OF ACCOUNTABILITY EMBODIED IN EARLIER DECISIONS." 
BRUDNEY, INSIDER SECURITIES DEALINGS DURING CORPORATE CRISES, 61 MICH.
L. REV. 1, 35, N. 109, AT 36 (1962).  FOR A SIMILAR VIEW OF THIS CASE
SEE 48 VA. L. REV. 751, 755-756 (1962). 

FN19  IN THE CONTEXT OF SEC. 16(B) OF THE SECURITIES EXCHANGE ACT,
FOR EXAMPLE, IT IS CLEAR THAT A DETERMINATION OF WHO IS A CORPORATE
"OFFICER" WITHIN THE MEANING OF THE STATUTE REQUIRES A FLEXIBLE
ASSESSMENT OF A PARTICULAR POWERS AND RESPONSIBILITIES RAHTER THAN A
RIGID RULE OF THUMB.  SO THE COURT OF APPEALS FOR THE SECOND CIRCUIT
HAS HELD, COLBY V. KLUNE, 178 F.2D 872.  IN THAT CASE JUDGE JEROME
FRANK OBSERVED ON A QUESTION QUITE SIMILAR TO THE ONE NOW BEFORE US,
"THE FUNCTIONS OF A 'VICE-PRESIDENT' OR 'COMPTROLLER' ARE NOT SO WELL
SETTLED AS TO BE SELF-EVIDENT, AND THERE IS NEED FOR EVIDENCE
CONCERNING THOSE FUNCTIONS  ...  .  THE QUESTION IS WHAT THIS
PARTICULAR EMPLOYEE WAS CALLED UPON TO DO IN THIS PARTICULAR COMPANY,
I.E., THE RELATION BETWEEN HIS AUTHORIZED ACTIVITIES AND THOSE OF THIS
CORPORATION."  178 F.2D, AT 875. 

SIMILARLY, THE QUESTION OF WHEN A STOCKHOLDER PARTICIPATING IN A
REORGANIZATION PROCEEDING IS ACTING IN A "REPRESENTATIVE" CAPACITY
WITHIN THE MEANING OF SEC. 249, IS ONE WHICH REQUIRES AN EXAMINATION OF
THE PARTICULAR FACTS.  SEE, E.G., YOUNG V. POTTS, 161 F.2D 597; FINN V.
CHILDS CO., 181 F.2D 431.  IN YOUNG V. HIGBEE CO., 324 U.S. 204, WE
UNDERTOOK JUST SUCH AN ANALYSIS OF THE ACTIVITIES OF TWO STOCKHOLDERS
IN ORDER TO DETERMINE, FOR A DIFFERENT BUT REALTED PURPOSE, WHETHER
THEY HAD SERVED DURING THE REORGANIZATION IN A "REPRESENTATIVE"
CAPACITY.  CF. PEPPER V. LITTON, SUPRA.  AND SEE NOTE, BANKRUPTCY:
CORPORATE REORGANIZATION:  SURVEY OF CHAPTER X IN OPERATION, 18
N.Y.U.L.Q. REV. 399, 475 (1941). 

FN20  SEE, E.G., SURFACE TRANSIT, INC., V. SAXE, BACON & O'SHEA, 266
F.2D 862.  MOREOVER, PROOF OF TRADING IN VIOLATION OF SEC. 249 FORFEITS
ANY CLAIM TO REIMBURSEMENT FOR EXPENSES INCURRED BY THE APPLICANT IN
CONNECTION WITH THE PROCEEDING.  IN RE INLAND GAS CORP., 309 F.2D 176. 
IT SHOULD BE UNNECESSARY TO ADD THAT SUCH SANCTIONS ARE IMPOSED NOT AS
PENALTIES UPON THE TRADING ITSELF - FOR OTHER PRINCIPLES GOVERN THE
EXTENT TO WHICH AND CONDITIONS UNDER WHICH AN INSIDER MAY PROFIT FROM
INVESTMENT IN THE DEBTOR'S SECURITIES DURING THE PROCEEDING.  RATHER,
THE RATIONALE UNDERLYING THE DENIAL OF COMPENSATION AND EXPENSES IS
THAT ALLOWANCES MAY BE MADE, UNDER GENERAL EQUITABLE LIMITATIONS AND
THE STATUTORY PROVISIONS ALIKE, ONLY FOR "LOYAL AND DISINTERESTED
SERVICE IN THE INTEREST OF THOSE FOR WHOM THE CLAIMANT PURPORTED TO
ACT."  WOODS V. CITY NAT. BANK & TRUST CO., SUPRA, AT 268.  SECTION 249
DOES NO MORE THAN DECLARE THAT ONE WHO INVESTS IN THE DEBTOR'S STOCK
DURING A REORGANIZATION CEASES TO BE DISINTERESTED FOR PURPOSES OF
COMPENSATION AND ALLOWANCES. 

FN21  CF., E.G., IN RE COSGROVE-MEEHAN COAL CORP., 136 F.2D 3. 

FN22  SEE, E.G., IN RE MIDLAND UNITED CO., 159 F.2D 340; IN RE
CENTRAL STATES ELECTRIC CORP., 206 F.2D 70; SURFACE TRANSIT, INC., V.
SAXE, BACON & O'SHEA, 266 F.2D 862; IN RE ARCADE MALLEABLE IRON CO., 35
F. SUPP. 461; IN RE NORWALK TIRE & RUBBER CO., 96 F. SUPP.  274. 
SEVERAL CASES HAVE RECOGNIZED NARROW EXCEPTIONS TO SEC. 249 WHERE THE
TRADING WAS CARRIED ON BY A RELATIVE OF THE APPLICANT OR CLAIMANT,
WITHOUT HIS KNOWLEDGE AND NOT FOR HIS ACCOUNT, E.G., NICHOLS V.
SECURITIES & EXCHANGE COMM'N, 211 F.2D 412.  BUT WHERE THE TRADING HAS
BEEN DONE WITH THE APPLICANT'S KNOWLEDGE OR FOR HIS ACCOUNT, IT IS
IMMATERIAL THAT HE MAY NOT REALIZE WHATEVER PROFIT RESULTS, IN RE
CENTRAL STATES ELECTRIC CORP., SUPRA; IN RE MIDLAND UNITED CO., 64 F.
SUPP. 399, 415-416.  SEE GENERALLY, 45 VA. L. REV. 1070-1071 (1959). 

FN23  SEE GENERALLY, E.G., IN RE INLAND GAS CORP., 309 F.2D 176; 11
REMINGTON, BANKRUPTCY (HAYES REV. ED. 1961), 535-538; TETON,
REORGANIZATION REVISED, 48 YALE L.J. 573, 602-603 (1939); BANDLER,
SECURITIES TRADING AND FEE SHARING UNDER CHAPTER X OF THE BANKRUPTCY
ACT, 15 RECORD OF THE ASSN. OF THE BAR OF THE CITY OF N.Y. 230 (1960). 

FN24  SEE FERBER, BLASBERG AND KATZ, CONFLICTS OF INTEREST IN
REORGANIZATION PROCEEDINGS UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT
OF 1935 AND CHAPTER X OF THE BANKRUPTCY ACT, 28 GEO. WASH. L. REV. 319,
360 (1959).  AS THE DISTRICT COURT NOTED IN ORDERING THE REMOVAL OF
FRIED, A BANKRUPTCY COURT POSSESSES CONSIDERABLE AUTHORITY TO SUPERVISE
THE EMPLOYMENT POLICIES OF A DEBTOR IN POSSESSION UNDER SECS. 188-191. 
IT IS NOT CLEAR WHETHER THE DISTRICT COURT FOUND A BASIS IN ITS GENERAL
POWERS FOR THE REMOVAL OF FRIED AND THE TERMINATION OF WEINSTEIN'S
ACTIVE DUTIES, FOR IT APPEARS THAT THE COURT WAS PRINCIPALLY IF NOT
EXCLUSIVELY INFLUENCED BY THE VIOLATION OF SEC. 249.  WE DO NOT MEAN TO
SUGGEST THAT A VIOLATION OF SEC. 249 MIGHT NOT, STANDING ALONE, JUSTIFY
AN ORDER FOR THE VIOLATOR'S DISCHARGE, BUT ONLY TO MAKE CLEAR THAT THIS
RESULT DOES NOT FOLLOW AUTOMATICALLY.   IN ANY EVENT, WE THINK THAT WE
SHOULD NOT UNDERTAKE TO DECIDE THIS QUESTION WITHOUT FIRST HAVING THE
VIEW OF THE COURT OF APPEALS. 

FN25  IT IS NOT CLEAR WHY THE DISTRICT COURT FELT POWERLESS TO ORDER
WEINSTEIN'S REMOVAL FROM HIS CORPORATE OFFICE.  NOR IS IT CLEAR TO WHAT
EXTENT THE COURT FELT THE QUESTION OF ITS POWER TO BE GOVERNED BY
PERTINENT STATE LAW.  ALTHOUGH SEC. 191 GIVES TO THE BANKRUPTCY COURT
THE POWER TO APPROVE OR DISAPPROVE AN OFFICER'S ASSUMPTION OF OFFICE
AND HIS RATE OF COMPENSATION, THERE IS A QUESTION TO WHAT EXTENT THOSE
POWERS ALSO COMPREHEND A POWER OF REMOVAL AS A MATTER EXCLUSIVELY OF
FEDERAL LAW.  WE HAVE NO OCCASION TO DECIDE SUCH QUESTIONS AT THIS
STAGE OF THE PROCEEDING. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING IN PART
AND DISSENTING IN PART. 

I AGREE WITH THE DISMISSAL OF THE WRIT RESPECTING THE ISSUES INVOLVED
IN FRIED V. MARGOLIS, 296 F.2D 670, BUT WOULD AFFIRM THE JUDGMENT OF
THE COURT OF APPEALS IN THE NAZARETH CASE, 296 F.2D 678, RELATING TO
SEC. 249 OF THE BANKRUPTCY ACT.  ON THAT SCORE I FULLY AGREE WITH JUDGE
FRIENDLY THAT AT "THE VERY LEAST, COURTS ARE JUSTIFIED IN DEMANDING A
CLEAR INDICATION OF CONGRESSIONAL PURPOSE BEFORE INFLICTING" SUCH A
"DRACONIAN PENALTY" (296 F.2D, AT 683) AS THE COURT'S DECISION NOW
IMPOSES ON PETITIONERS WEINSTEIN AND FRIED.  THE VERY TRIVIALITY OF THE
TRANSACTIONS INVOLVED IN THIS PARTICULAR CASE CAUTIONS AGAINST
ACCEPTANCE OF THE COURT'S READY CONSTRUCTION OF SEC. 249. 
..END :



ARROW TRANSPORTATION CO. V. SOUTHERN RAILWAY CO. 372 U.S. 658 


NO. 430.  ARGUED JANUARY 10, 1963.  - DECIDED APRIL 15, 1963.  - 308
F.2D 181, AFFIRMED. 


THE INTERSTATE COMMERCE COMMISSION SUSPENDED FOR THE MAXIMUM STATUTORY
PERIOD OF SEVEN MONTHS A SCHEDULE OF REDUCED RAILROAD RATES ON MULTIPLE
CAR GRAIN SHIPMENTS FROM CERTAIN MISSISSIPPI AND OHIO RIVER PORTS TO
VARIOUS POINTS IN THE SOUTHEASTERN UNITED STATES, PENDING A
DETERMINATION AS TO WHETHER THE REDUCTION WAS LAWFUL.  IT HAD NOT
DECIDED THAT QUESTION WHEN THE SEVEN-MONTH PERIOD EXPIRED, AND
PETITIONERS SUED TO ENJOIN RESPONDENT RAILROADS FROM EFFECTING THE
REDUCTIONS PENDING THE COMMISSION'S DECISION.  THEY CLAIMED THAT
APPLICATION OF THE NEW RATES WOULD IRREPARABLY INJURE THEIR RESPECTIVE
ECONOMIC INTERESTS, PARTICULARLY BECAUSE THEY THREATENED TO FORCE THE
PETITIONER BARGE LINE OUT OF BUSINESS.  AFTER A BRIEF HEARING, THE
DISTRICT COURT CONCLUDED THAT THERE WAS GREAT DANGER OF IRREPARABLE
HARM OR INJURY TO PETITIONERS IF THE PROPOSED RATES WENT INTO EFFECT;
BUT THAT IT HAD NO JURISDICTION TO GRANT INJUNCTIVE RELIEF EXTENDING
THE PERIOD OF SUSPENSION, BECAUSE SEC. 15(7) OF THE INTERSTATE COMMERCE
ACT VESTED EXCLUSIVE POWER IN THE COMMISSION TO SUSPEND A PROPOSED
CHANGE OF RATES FOR A LIMITED TIME.  THE COURT OF APPEALS AFFIRMED. 
HELD:  THE JUDGMENT IS AFFIRMED.  PP. 659-673. 

(A)  A REVIEW OF THE HISTORY OF THE SUSPENSION POWER INDICATES THAT
CONGRESS INTENDED IN SEC. 15(7) TO VEST IN THE COMMISSION EXCLUSIVE
POWER TO SUSPEND PROPOSED RATE CHANGES, AND TO WITHDRAW FROM THE COURTS
ANY PRE-EXISTING POWER TO GRANT INJUNCTIVE RELIEF TO PARTIES PROTESTING
THE CHANGES.   PP. 662-669. 

(B)  THE FOREGOING CONCLUSION IS BUTTRESSED BY A CONSIDERATION OF THE
PRACTICAL CONSEQUENCES OF SURVIVAL OF AN INJUNCTION REMEDY - INCLUDING,
INTER ALIA, THE DANGERS OF JUDICIAL INTRUSION INTO THE ADMINISTRATIVE
DOMAIN.  PP. 669-672. 

(C) INJUNCTIVE RELIEF IS NOT AUTHORIZED IN THIS CASE BY THE NATIONAL
TRANSPORTATION POLICY, WHICH OBLIGATES THE COMMISSION, NOT THE COURTS,
TO BALANCE THE INTERESTS OF COMPETING FORMS OF TRANSPORTATION.  PP. 672
673. 

ARROW TRANSPORTATION CO. ET AL. V. SOUTHERN RAILWAY CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

A SCHEDULE OF REDUCED RATES PROPOSED BY THE RESPONDENT RAIL CARRIERS
WAS SUSPENDED BY THE INTERSTATE COMMERCE COMMISSION FOR THE MAXIMUM
STATUTORY PERIOD OF SEVEN MONTHS PENDING A DETERMINATION WHETHER THE
REDUCTION WAS LAWFUL.  THE STATUTE (FN1) EXPRESSLY PROVIDES THAT "THE
PROPOSED CHANGE OF RATE ...  SHALL GO INTO EFFECT," IF THE COMMISSION'S
PROCEEDING HAS NOT BEEN CONCLUDED AND AN ORDER MADE WITHIN THE PERIOD
OF SUSPENSION.  THE COMMISSION DID NOT REACH A DECISION WITHIN SEVEN
MONTHS, OR WITHIN THE FOLLOWING FIVE MONTHS DURING WHICH THE
RESPONDENTS VOLUNTARILY POSTPONED THE CHANGE, AND THE RESPONDENTS
ANNOUNCED THAT THE REDUCED RATES WOULD BE PUT IN EFFECT.  THEREUPON THE
PETITIONERS (FN2) BROUGHT THIS ACTION IN THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA TO ENJOIN THE RESPONDENTS FROM MAKING THE
CHANGE EFFECTIVE PENDING THE COMMISSION'S DECISION.  THE DISTRICT COURT
CONCLUDED AFTER EXAMINATION OF THE PLEADINGS AND A BRIEF HEARING THAT
"THERE IS GRAVE DANGER THAT IRREPARABLE INJURY, LOSS OR DAMAGE MAY BE
INFLICTED ON  ... PETITIONERS IF THE PROPOSED RATES GO INTO EFFECT  ...
FOR WHICH  ...  PETITIONERS WILL HAVE NO ADEQUATE REMEDY AT LAW." 
(FN3)  THE COURT HELD, HOWEVER, THAT SEC. 15(7) VESTED EXCLUSIVE POWER
IN THE COMMISSION TO SUSPEND A CHANGE OF RATE FOR A LIMITED TIME AND
THEREBY PRECLUDED DISTRICT COURT JURISDICTION TO GRANT INJUNCTIVE
RELIEF EXTENDING THE STATUTORY PERIOD.  THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT AFFIRMED, STATING, "CONGRESS, IN ITS WISDOM, HAS FIXED
SEVEN MONTHS AS THE MAXIMUM PERIOD OF SUSPENSION.  IT SEEMS CLEAR TO US
THAT IF THE COURTS EXTEND THAT PERIOD, THEY ARE IN EFFECT AMENDING THE
STATUTE AND THAT IS A MATTER BEYOND THEIR POWER."  308 F.2D 181, 186. 
WE GRANTED CERTIORARI, 371 U.S. 859.  (FN4)  WE AFFIRM THE JUDGMENT OF
THE COURT OF APPEALS. 

I. 

THE INTERSTATE COMMERCE COMMISSION WAS GRANTED NO POWER TO SUSPEND
PROPOSED RATE CHANGES IN THE ORIGINAL ACT OF 1887.  THAT POWER FIRST
APPEARED AMONG THE 1910 AMENDMENTS INTRODUCED BY THE MANN-ELKINS ACT. 
(FN5)  THE PROBLEM AS TO WHETHER THE APPLICATION OF NEW RATES MIGHT BE
STAYED PENDING DECISION AS TO THEIR LAWFULNESS FIRST EMERGED AFTER THE
COMMISSION WAS EMPOWERED BY THE HEPBURN ACT OF 1906 TO DETERMINE THE
VALIDITY OF PROPOSED RATES.  IN THE ABSENCE OF ANY SUSPENSION POWER IN
THE COMMISSION, SHIPPERS TURNED TO THE COURTS FOR INJUNCTIVE RELIEF. 
THE RESULTS WERE NOT SATISFACTORY.  THE LOWER FEDERAL COURTS EVINCED
GRAVE DOUBT WHETHER THEY POSSESSED ANY EQUITY JURISDICTION TO GRANT
SUCH INJUNCTIONS, AND THE AVAILABILITY OF RELIEF DEPENDED ON THE VIEW
OF A PARTICULAR COURT ON THIS MUCH CONTROVERTED ISSUE.  (FN6)  THE
INTERSTATE COMMERCE COMMISSION WAS MORE CONCERNED, HOWEVER, WITH
CERTAIN PRACTICAL CONSEQUENCES OF LEAVING THE QUESTION WITH THE
COURTS.  IN ITS ANNUAL REPORTS FOR THE THREE YEARS BEFORE 1910 THE
COMMISSION HAD DIRECTED ATTENTION TO THE FACT THAT SUCH COURTS AS
ENTERTAINED JURISDICTION WERE REACHING DIVERSE RESULTS, WHICH
ENGENDERED CONFUSION AND PRODUCED COMPETITIVE INEQUITIES.  THE LARGE
EXPENSE ENTAILED IN PROSECUTING AN ACTION AND FINANCING A SUBSTANTIAL
BOND PROVED PROHIBITIVE FOR MANY SMALL SHIPPERS OF MODEST MEANS.  EVEN
WHEN A LARGE SHIPPER SECURED AN INJUNCTION, THE SCOPE OF ITS RELIEF
OFTEN PROTECTED ONLY THAT PARTICULAR SHIPPER, LEAVING HIS WEAKER
COMPETITORS AT THE MERCY OF THE NEW RATE.  (FN7) THEREFORE, THE
COMMISSION REPORTED TO CONGRESS, "  ...  AS A PRACTICAL MATTER THE
SMALL SHIPPER WHO CAN NOT FILE THE BOND CAN NOT AND DOES NOT CONTINUE
IN BUSINESS UNDER THE HIGHER RATE."  I.C.C. ANNUAL REPORT, 1908, P.
12.  AS AN EQUALLY SERIOUS CONSEQUENCE, THE REGULATORY GOAL OF
UNIFORMITY WAS JEOPARDIZED BY THE DIVERSE CONCLUSIONS REACHED BY
DIFFERENT DISTRICT COURTS - EVEN, IT APPEARS, AS TO THE REASONABLENESS
OF A PARTICULAR RATE CHANGE.  THIS RESULTED IN DISPARITY OF TREATMENT
AS BETWEEN DIFFERENT SHIPPERS, CARRIERS, AND SECTIONS OF THE COUNTRY,
CAUSING IN TURN "DISCRIMINATION AND HARDSHIP TO THE GENERAL PUBLIC." 
I.C.C. ANNUAL REPORT, 1907, P. 10. 

IT CANNOT BE SAID THAT THE LEGISLATIVE HISTORY OF THE GRANT OF THE
SUSPENSION POWER TO THE COMMISSION INCLUDES UNAMBIGUOUS EVIDENCE OF A
DESIGN TO EXTINGUISH WHATEVER JUDICIAL POWER MAY HAVE EXISTED PRIOR TO
1910 TO SUSPEND PROPOSED RATES.  HOWEVER, WE CANNOT SUPPOSE THAT
CONGRESS, BY VESTING THE NEW SUSPENSION POWER IN THE COMMISSION,
INTENDED TO GIVE BACKHANDED APPROVAL TO THE EXERCISE OF A JUDICIAL
POWER WHICH HAD BROUGHT THE WHOLE PROBLEM TO A HEAD. 

MOREOVER, CONGRESS ENGAGED IN A PROTRACTED CONTROVERSY CONCERNING THE
PERIOD FOR WHICH THE COMMISSION MIGHT SUSPEND A CHANGE OF RATES.  SUCH
A CONTROVERSY WOULD HAVE BEEN A FUTILE EXERCISE UNLESS THE CONGRESS
ALSO MEANT TO FORECLOSE JUDICIAL POWER TO EXTEND THAT PERIOD.  THIS
CONTROVERSY SPANNED NEARLY TWO DECADES.  AT THE OUTSET IN 1910, THE
PROPOSAL FOR CONFERRING ANY SUCH POWER ON THE COMMISSION WAS
STRENUOUSLY OPPOSED.  THE CARRIERS CONTENDED THAT ANY POSTPONEMENT OF
RATE CHANGES WOULD RESULT IN LOSS OF REVENUE OR COMPETITIVE ADVANTAGES
FAIRLY DUE THEM IN THE INTERIM IF THE RATES WERE FINALLY DETERMINED TO
BE LAWFUL.  BUT THIS OPPOSITION EVENTUALLY TOOK THE FORM OF EFFORTS TO
LIMIT THE TIME FOR WHICH SUSPENSION MIGHT BE ORDERED BY THE
COMMISSION.  (FN8)  THE MANN-ELKINS ACT AUTHORIZED A SUSPENSION FOR AN
INITIAL PERIOD NOT TO EXCEED 120 DAYS WITH A DISCRETIONARY POWER IN THE
COMMISSION TO EXTEND THE PERIOD FOR A MAXIMUM ADDITIONAL SIX MONTHS. 
(FN9)  TEN YEARS LATER THE ESCH-CUMMINS ACT OF 1920 CUT THE AUTHORIZED
PERIOD OF EXTENSION FROM SIX MONTHS TO 30 DAYS, (FN10) THUS REDUCING
FROM 10 TO FIVE MONTHS THE OVERALL PERIOD FOR WHICH THE COMMISSION
MIGHT ORDER A SUSPENSION.  CONGRESS WAS AWARE THROUGHOUT THE
CONSIDERATION OF THESE MEASURES THAT SOME SHIPPERS MIGHT FOR A TIME
HAVE TO PAY UNLAWFUL RATES BECAUSE A PROCEEDING MIGHT NOT BE CONCLUDED
AND AN ORDER MADE WITHIN THE REDUCED TIME.  (FN11)  TO MITIGATE THAT
HARDSHIP, THE 1920 AMENDMENTS AUTHORIZED THE COMMISSION IN SUCH CASES
TO REQUIRE THE CARRIERS TO KEEP DETAILED ACCOUNTS OF CHARGES COLLECTED
AND TO ORDER REFUNDS OF EXCESS CHARGES IF THE COMMISSION ULTIMATELY
FOUND THE RATES TO BE UNLAWFUL.  (FN12)  THE SUSPENSION PROVISIONS TOOK
THEIR PRESENT FORM, VESTING AUTHORITY IN THE COMMISSION TO SUSPEND FOR
A MAXIMUM PERIOD OF SEVEN MONTHS, IN THE ACT OF 1927.  (FN13)  THE
ACCOUNTING AND REFUND PROVISIONS OF THE 1920 LAW REMAINED.  THUS, AS WE
HAVE OBSERVED BEFORE, THE PRESENT LIMITATION WAS "FORMED AFTER MUCH
EXPERIMENTATION WITH THE PERIOD OF SUSPENSION ...  ."  INTERSTATE
COMMERCE COMM'N V. INLAND WATERWAYS CORP., 319 U.S. 671, 689. 

WE CANNOT BELIEVE THAT CONGRESS WOULD HAVE GIVEN SUCH DETAILED
CONSIDERATION TO THE PERIOD OF SUSPENSION UNLESS IT MEANT THEREBY TO
VEST IN THE COMMISSION THE SOLE AND EXCLUSIVE POWER TO SUSPEND AND TO
WITHDRAW FROM THE JUDICIARY ANY PRE-EXISTING POWER TO GRANT INJUNCTIVE
RELIEF.  THIS COURT HAS PREVIOUSLY INDICATED ITS VIEW THAT THE PRESENT
NORTHERN R. CO., 281 U.S. 412, 429, CHIEF JUSTICE HUGHES SAID FOR THE
COURT:  "THIS POWER OF SUSPENSION WAS ENTRUSTED TO THE COMMISSION
ONLY."  (FN14)  THE LOWER FEDERAL COURTS HAVE ALSO SAID AS MUCH. 
(FN15)  AND THE COMMENTATORS ON THE MATTER HAVE CONSISTENTLY SUPPORTED
THE SOUNDNESS OF THAT VIEW.  (FN16) 

THERE IS, OF COURSE, A CLOSE NEXUS BETWEEN THE SUSPENSION POWER AND
THE COMMISSION'S PRIMARY JURISDICTION TO DETERMINE THE LAWFULNESS AND
REASONABLENESS OF RATES, A JURISDICTION TO WHICH THIS COURT HAD, EVEN
IN 1910, ALREADY GIVEN THE FULLEST RECOGNITION.  TEXAS & PACIFIC R. CO.
V. ABILENE COTTON OIL CO., 204 U.S. 426.  (FN17)  THIS RELATIONSHIP
SUGGESTS IT WOULD BE ANOMALOUS IF A CONGRESS WHICH CREATED A POWER OF
SUSPENSION IN THE COMMISSION BECAUSE OF THE DISSONANCE ENGENDERED BY
RECOURSE TO THE INJUNCTION NEVERTHELESS MEANT THE JUDICIAL REMEDY TO
SURVIVE.  THE MORE PLAUSIBLE INFERENCE IS THAT CONGRESS MEANT TO
FORECLOSE A JUDICIAL POWER TO INTERFERE WITH THE TIMING OF RATE CHANGES
WHICH WOULD BE OUT OF HARMONY WITH THE UNIFORMITY OF RATE LEVELS
FOSTERED BY THE DOCTRINE OF PRIMARY JURISDICTION. 

IT MUST BE ADMITTED THAT CONGRESS DEALT WITH THE PROBLEM AS IT
AFFECTED THE RELATIONS BETWEEN SHIPPERS AND CARRIERS, MAKING NO EXPRESS
REFERENCE TO THE INTERESTS OF COMPETING CARRIERS AND THEIR CUSTOMERS
SUCH AS ARE INVOLVED IN THE INSTANT CASE.  WE SEE NO WARRANT IN THAT
OMISSION, HOWEVER, FOR A DIFFERENCE IN RESULT.  CONFLICTS OVER RATES
BETWEEN COMPETING CARRIERS WERE FAMILIAR TO THE COMMISSION LONG BEFORE
1910; (FN18) INDEED, THE STRUGGLE BETWEEN COMPETING BARGE AND RAIL
CARRIERS HAS BEEN GOING ON ALMOST SINCE RAILROADS CAME ONTO THE
NATIONAL SCENE.  INDEED, IN ANOTHER PROVISION OF THE VERY SAME STATUTE
CONGRESS IN 1910 DEALT EXPLICITLY WITH THE REDUCTION OF RATES BY
RAILROADS COMPETING WITH WATER CARRIERS:  SECTION 4(2) OF THE ACT
FORBIDS A RAIL CARRIER COMPETING WITH A WATER CARRIER TO INCREASE RATES
ONCE REDUCED ON A COMPETITIVE SERVICE, UNLESS "AFTER HEARING BY THE
COMMISSION IT SHALL BE FOUND THAT SUCH PROPOSED INCREASE RESTS UPON
CHANGED CONDITIONS OTHER THAN THE ELIMINATION OF WATER COMPETITION." 
49 U.S.C.  SEC. 4(2).  IN ADDITION SEC. 8 OF THE ACT, 49 U.S.C. SEC. 8,
CREATES A PRIVATE RIGHT OF ACTION FOR DAMAGES - BASED UPON CONDUCT
VIOLATIVE OF THE ACT - WHICH MIGHT BE AVAILABLE, THOUGH WE HAVE NO
OCCASION HERE TO DECIDE THE QUESTION, TO A COMPETITOR CLAIMING THAT A
PROPOSED RATE REDUCTION HAD BEEN GROSSLY DISCRIMINATORY.  OUR HOLDING
TODAY THEREFORE MEANS ONLY THAT THE INJUNCTION REMEDY IS NOT AVAILABLE
TO THESE PETITIONERS, JUST AS IT IS UNAVAILABLE TO SHIPPERS. 

                 II. 

OUR CONCLUSION FROM THE HISTORY OF THE SUSPENSION POWER IS BUTTRESSED
BY A CONSIDERATION OF THE UNDESIRABLE CONSEQUENCES WHICH WOULD
NECESSARILY ATTEND THE SURVIVAL OF THE INJUNCTION REMEDY.  A COURT'S
DISPOSITION OF AN APPLICATION FOR INJUNCTIVE RELIEF WOULD SEEM TO
REQUIRE AT LEAST SOME CONSIDERATION OF THE APPLICANT'S CLAIM THAT THE
CARRIER'S PROPOSED RATES ARE UNREASONABLE.  BUT SUCH CONSIDERATION
WOULD CREATE THE HAZARD OF FORBIDDEN JUDICIAL INTRUSION INTO THE
ADMINISTRATIVE DOMAIN.  (FN19)  JUDICIAL COGNIZANCE OF REASONABLENESS
OF RATES HAS BEEN LIMITED TO CAREFULLY DEFINED STATUTORY AVENUES OF
REVIEW.  (FN20)  THESE CONSIDERATIONS EXPLAIN WHY COURTS CONSISTENTLY
DECLINE TO SUSPEND RATES WHEN THE COMMISSION HAS REFUSED TO DO SO, OR
TO SET ASIDE AN INTERIM SUSPENSION ORDER OF THE COMMISSION.  (FN21)  IF
AN INDEPENDENT APPRAISAL OF THE REASONABLENESS OF RATES MIGHT BE MADE
FOR THE PURPOSE OF DECIDING APPLICATIONS FOR INJUNCTIVE RELIEF,
CONGRESS WOULD HAVE FAILED TO CORRECT THE SITUATION SO HAZARDOUS TO
UNIFORMITY WHICH PROMPTED ITS DECISION TO VEST THE SUSPENSION POWER IN
THE COMMISSION.  MOREOVER, SUCH A PROCEDURE WOULD PERMIT A SINGLE JUDGE
TO PASS BEFORE FINAL COMMISSION ACTION UPON THE QUESTION OF
REASONABLENESS OF A RATE, WHICH THE STATUTE EXPRESSLY ENTRUSTS ONLY TO
A COURT OF THREE JUDGES REVIEWING THE COMMISSION'S COMPLETED TASK. 
(FN22) 

NOR IS THE SITUATION DIFFERENT IN THIS CASE IF IT BE SUGGESTED THAT A
COURT OF EQUITY MIGHT RELY UPON THE COMMISSION'S FINDING OF
UNREASONABLENESS WHICH PRECEDED THE COMMISSION'S SUSPENSION ORDER.  THE
COMMISSION'S CONSIDERATION OF THE QUESTION, THROUGH ITS SUSPENSION
BOARD, INVOLVES ONLY A BRIEF AND INFORMAL HEARING.  (FN23)  AUTOMATIC
JUDICIAL ACCEPTANCE OF A FINDING REACHED IN THAT WAY WOULD DELEGATE
GREATER EFFECT TO SUCH AN ADMINISTRATIVE PROCESS THAN THE PROCESS
ITSELF WARRANTS.  AS THE BASIS FOR A JUDICIAL DECREE OF A SINGLE
DISTRICT JUDGE, SUCH A PROCEDURE WOULD BE INCONSISTENT WITH SEC. 15(1)
OF THE ACT, WHICH PROVIDES THAT EFFECTIVE RATES MAY BE STRUCK DOWN AS
UNLAWFUL AFTER A "FULL HEARING" BY THE COMMISSION.  (FN24)

                                      III. 

THE PETITIONERS CONTEND THAT IN ANY EVENT INJUNCTIVE RELIEF IS
AUTHORIZED IN THIS CASE TO ENFORCE THE NATIONAL TRANSPORTATION POLICY. 
(FN25)  THEY ARGUE THAT WHEN THE RAIL CARRIERS' RATES GO INTO EFFECT
THE BARGE LINE WILL INEVITABLY AND IMMEDIATELY BE DRIVEN OUT OF
BUSINESS, CONTRARY TO THE PARAMOUNT CONCERN OF THE POLICY FOR THE
PROTECTION OF WATER CARRIERS THREATENED BY RAIL COMPETITION.   APART
FROM THE ABSENCE OF ANY DECISIVE SHOWING THAT THE BARGE LINE WOULD
SUFFER THIS MISFORTUNE, IT IS CLEAR THAT NOTHING IN THE NATIONAL
TRANSPORTATION POLICY, ENACTED MANY YEARS AFTER THE 1927 REVISION OF
SEC. 15(7), INDICATES THAT CONGRESS INTENDED TO REVIVE A JUDICIAL POWER
WHICH WE HAVE FOUND WAS EXTINGUISHED WHEN THE SUSPENSION POWER WAS
VESTED IN THE COMMISSION.  CF. UNITED STATES V. BORDEN CO., 308 U.S.
188, 198-199.  INDEED, IF ANYTHING, THE POLICY REINFORCES OUR
CONCLUSION.  THE MANDATE TO ACHIEVE A BALANCE BETWEEN COMPETING FORMS
OF TRANSPORTATION IS DIRECTED NOT TO THE COURTS BUT TO THE COMMISSION. 
(FN26)  IT IS REASONABLE TO SUPPOSE THAT HAD CONGRESS FELT THAT BALANCE
TO BE IN DANGER OF DISTORTION, IT WOULD HAVE ADDRESSED ITSELF TO OUR
PROBLEM DIRECTLY BY ENHANCING THE POWERS GRANTED THE COMMISSION TO
ENFORCE THE POLICY.  SURELY CONGRESS WOULD NOT HAVE MEANT ITS SILENCE
ALONE TO IMPLY THE REVIVAL OF A JUDICIAL REMEDY THE EXERCISE OF WHICH
MIGHT WELL DEFEAT RATHER THAN PROMOTE THE OBJECTIVES OF THE NATIONAL
TRANSPORTATION POLICY.  AFFIRMED.    FN1  49 U.S.C. SEC. 15(7): 

"WHENEVER THERE SHALL BE FILED WITH THE COMMISSION ANY SCHEDULE
STATING A NEW  ...  RATE  ...  THE COMMISSION SHALL HAVE  ...
AUTHORITY, EITHER UPON COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT
COMPLAINT, AT ONCE  ...  TO ENTER UPON A HEARING CONCERNING THE
LAWFULNESS OF SUCH RATE  ...  AND PENDING SUCH HEARING AND THE DECISION
THEREON THE COMMISSION, UPON FILING WITH SUCH SCHEDULE AND DELIVERING
TO THE CARRIER OR CARRIERS AFFECTED THEREBY A STATEMENT IN WRITING OF
ITS REASONS FOR SUCH SUSPENSION, MAY FROM TIME TO TIME SUSPEND THE
OPERATION OF SUCH SCHEDULE AND DEFER THE USE OF SUCH RATE ...  BUT NOT
FOR A LONGER PERIOD THAN SEVEN MONTHS BEYOND THE TIME WHEN IT WOULD
OTHERWISE GO INTO EFFECT; AND AFTER FULL HEARING, WHETHER COMPLETED
BEFORE OR AFTER THE RATE  ... GOES INTO EFFECT, THE COMMISSION MAY MAKE
SUCH ORDER WITH REFERENCE THERETO AS WOULD BE PROPER IN A PROCEEDING
INITIATED AFTER IT HAD BECOME EFFECTIVE.  IF THE PROCEEDING HAS NOT
BEEN CONCLUDED AND AN ORDER MADE WITHIN THE PERIOD OF SUSPENSION, THE
PROPOSED CHANGE OF RATE  ...  SHALL GO INTO EFFECT AT THE END OF SUCH
PERIOD  ...  ." 

FN2  THE PETITIONERS ARE A BARGE LINE, ARROW TRANSPORTATION CO., A
COMPETITOR OF THE RESPONDENT RAILROADS FOR GRAIN CARRIAGE; A
MUNICIPALITY, GUNTERSVILLE, ALABAMA, SERVED BY ARROW; A GRAIN MERCHANT,
O.J. WALLS, LOCATED IN THAT MUNICIPALITY; AND A GRAIN CONSUMER, JOHN D.
BAGWELL FARMS & HATCHERY, INC., WHICH RECEIVES ITS GRAIN BY TRUCK FROM
GUNTERSVILLE.  THE RATE REDUCTIONS WHICH RESPONDENTS HAVE FILED COVER
THE SHIPMENT OF GRAIN TO VARIOUS POINTS IN THE SOUTHEASTERN UNITED
STATES, BUY APPLY ONLY TO MULTIPLE-CAR SHIPMENTS FROM CERTAIN
MISSISSIPPI AND OHIO RIVER PORTS.  THE COMMISSION, FOLLOWING A
COMPLAINT BY COMPETING BARGE LINES AND OTHER PARTIES, AND ON THE BASIS
OF A RECOMMENDATION OF ITS SUSPENSION BOARD, MADE A TENTATIVE FINDING
THAT THE PROPOSED RATES WOULD BE "UNJUST AND UNREASONABLE, IN VIOLATION
OF THE INTERSTATE COMMERCE ACT," AND WOULD "CONSTITUTE UNFAIR AND
DESTRUCTIVE COMPETITIVE PRACTICES IN CONTRAVENTION OF THE NATIONAL
TRANSPORTATION POLICY."  AFTER THE FULL HEARING, HOWEVER, DIVISION 2 OF
THE COMMISSION, ON JANUARY 21, 1963, CONCLUDED THAT SOUTHERN'S RATES AT
LEAST WERE COMPENSATORY AND REASONABLE, GRAIN IN MULTIPLE-CAR SHIPMENTS
- RIVER CROSSINGS TO THE SOUTH, I.&S.  DOCKET NO. 7656.  THAT DECISION
IS NOW AWAITING RECONSIDERATION BY THE FULL COMMISSION. 

THE FOUR PETITIONERS HAVE CONTENDED THROUGHOUT THIS LITIGATION THAT
THE APPLICATION OF THE PROPOSED NEW RAIL RATES WILL IRREPARABLY INJURE
THEIR RESPECTIVE ECONOMIC INTERESTS, PARTICULARLY BECAUSE THEY THREATEN
TO FORCE ARROW OUT OF BUSINESS.  PETITIONERS FURTHER CONTEND THAT THE
PROPOSED RATES, BEING SUBSTANTIALLY LOWER THAN THE COMPETITIVE BARGE
RATES IN EFFECT AT THE TIME OF FILING, UNLAWFULLY DISCRIMINATE AGAINST
A COMPETING FORM OF TRANSPORTATION.  THE REDUCTIONS, IN PETITIONERS'
VIEW, WILL BENEFIT ONLY THOSE USERS OF GRAIN WHO ARE EQUIPPED TO
RECEIVE VERY LARGE RAIL SHIPMENTS, TO THE DETRIMENT OF ALL RECEIVERS
OFF THE RAIL ROUTES, AND THE SMALLER RAIL-SIDE PURCHASERS WHO LACK
FACILITIES FOR RECEIPT AND STORAGE OF MULTIPLE-CAR SHIPMENTS.  SOUTHERN
RESPONDS THAT ITS REDUCTIONS, AT LEAST, WERE MADE POSSIBLE BY
TECHNOLOGICAL INNOVATIONS AND EFFICIENCIES CULMINATING IN THE
INAUGURATION OF NEW ALUMINUM FREIGHT CARS DESIGNED ESPECIALLY FOR
CARRIAGE OF LARGE GRAIN SHIPMENTS.  SOUTHERN ALSO MAINTAINS THAT THE
PROPOSED RATES ARE BOTH NONDISCRIMINATORY AND COMPENSATORY, AND HAVE
BEEN NECESSITATED BY VIGOROUS COMPETITION AGAINST THE RAILROADS BY
UNREGULATED MOTOR CARRIERS ON CERTAIN ROUTES WHICH THE BARGE LINES DO
NOT SERVE. 

IN THE COURSE OF THE HEARINGS BEFORE THE COMMISSION, THE PROPOSED
RATES WERE SUPPORTED BY REPRESENTATIVES OF THE UNITED STATES DEPARTMENT
OF AGRICULTURE, THE SOUTHERN GOVERNORS' CONFERENCE, THE SOUTHEASTERN
ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS, AND BY VARIOUS
RECEIVERS AND USERS OF GRAIN THROUGHOUT THE SOUTHEAST.  ON THE OTHER
HAND, THE RATES WERE PROTESTED BY CERTAIN BARGE LINES BESIDES ARROW,
SEVERAL RECEIVERS OF GRAIN BY BARGE, THE TENNESSEE VALLEY AUTHORITY,
FLOUR MILLING INTERESTS AND CERTAIN BOARDS OF TRADE OUTSIDE THE
SOUTHEAST. 

FN3  THE DISTRICT COURT CONCLUDED IN ITS MEMORANDUM FOLLOWING AN ORAL
ARGUMENT: 

"  ...  I HAVE CONVINCED MYSELF THAT SHOULD THIS COURT HAVE
JURISDICTION OF THIS MATTER, IT SHOULD CONSIDER ALL OF THESE MATTERS
MOST CAREFULLY AND DELIBERATELY BEFORE DENYING INJUNCTIVE RELIEF TO
PLAINTIFFS.  AT THIS TIME I AM OF THE OPINION THAT THE ENDS OF JUSTICE
WOULD BE BEST SERVED BY GRANTING TEMPORARY INJUNCTIVE RELIEF FOR A
LIMITED PERIOD OF TIME, NOT TO URGE THE COMMISSION TO GREATER SPEED IN
DETERMINING THIS ISSUE BUT TO BE SURE THAT THE PARTIES CONCLUDE THE
HEARINGS AS SPEEDILY AS POSSIBLE.  HOWEVER, LACKING JURSIDICTION, I
FIND MYSELF POWERLESS TO GRANT THE RELIEF SOUGHT; THEREFORE, AT THIS
TIME IT IS THE JUDGMENT OF THE COURT THAT THE MOTION FOR PRELIMINARY
INJUNCTION BE, AND THE SAME IS HEREBY DENIED.  AT THE SAME TIME I AM
DENYING DEFENDANTS' MOTION TO DISMISS THIS CASE." 

THE DISTRICT COURT'S FORMAL ORDER, ENTERED THE FOLLOWING DAY, DENIED
BOTH THE PETITIONERS' MOTION FOR A PRELIMINARY INJUNCTION AND THE
RESPONDENTS' MOTION TO DISMISS. 

FN4  ONE JUDGE OF THE COURT OF APPEALS GRANTED PETITIONERS' MOTION
FOR A TEMPORARY RESTRAINING ORDER ON AUGUST 3, 1962, THE DAY ON WHICH
THE ORDER OF THE DISTRICT COURT ISSUED.  ON AUGUST 8, HOWEVER, A PANEL
OF THE COURT OF APPEALS DENIED PETITIONERS' APPLICATION FOR A
RESTRAINING ORDER PENDING DECISION OF THE APPEAL.  THEREAFTER, BUT
BEFORE ORAL ARGUMENT IN THE COURT OF APPEALS, MR. JUSTICE BLACK ISSUED
AN ORDER EXTENDING THE COURT OF APPEALS' RESTRAINING ORDER PENDING THE
PRESENTATION AND DISPOSITION BY THIS COURT OF A PETITION FOR
CERTIORARI.  THE COURT OF APPEALS RENDERED ITS OPINION ON SEPTEMBER 7,
1962, AND WE GRANTED CERTIORARI ON OCTOBER 15.  WE INVITED THE
SOLICITOR GENERAL TO FILE A BRIEF EXPRESSING THE VIEWS OF THE UNITED
STATES, AND HE FILED A BRIEF FOR THE UNITED STATES AS AMICUS CURIAE. 
SOUTHERN WAS THE ONLY RAILROAD WHICH OPPOSED CERTIORARI OR ARGUED THE
MERITS OF THE CASE BEFORE THIS COURT. 

FN5  36 STAT. 522. 

FN6  THE CASES DECIDED BETWEEN 1906 AND 1910 DISCLOSE THE JUDICIAL
UNCERTAINTY ABOUT THE AVAILABILITY OF ANY EQUITABLE RELIEF.  COMPARE,
E.G., NORTHERN PAC. R. CO. V. PACIFIC COAST LUMBER MFRS.  ASSN., 165 F.
1 (C.A. 9TH CIR. 1908); JEWETT BROS. & JEWETT V. CHICAGO, M. & ST. P.R.
CO., 156 F. 160 (C.C.D.S.D. 1907) WITH, E.G., ATLANTIC COAST LINE R.
CO. V. MACON GROCERY CO., 166 F. 206 (C.A. 5TH CIR. 1909), AFF'D ON
OTHER GROUNDS, 215 U.S. 501; AND WICKWIRE STEEL CO. V. NEW YORK CENT. &
H.R.R. CO., 181 F. 316 (C.A.2D CIR. 1910).  SEE FOR A CONTEMPORARY VIEW
THAT COURTS LACKED SUCH INJUNCTIVE POWERS OVER PROPOSED RATES, 1
DRINKER, THE INTERSTATE COMMERCE ACT (1909), SEC. 243. 

FN7  SEE IN RE ADVANCES IN RATES - WESTERN CASE, 20 I.C.C. 307, 313
314; DIXON, THE MANN-ELKINS ACT, 24 QUARTERLY JOURNAL OF ECONOMICS,
AUGUST 1910, P. 593, AT 603; CROOK, THE INTERSTATE COMMERCE COMMISSION,
194 NORTH AMERICAN REVIEW, DECEMBER 1911, P. 858, AT 867. 

FN8  THE ADMINISTRATION ORIGINALLY RECOMMENDED A PERIOD OF 60 DAYS;
CONGRESSIONAL PROPONENTS OF SUSPENSION URGED IN RESPONSE AN UNLIMITED
SUSPENSION POWER, SEE 45 CONG. REC.  6409.  THE COMMISSION ITSELF
ORIGINALLY PROPOSED A PERIOD OF 120 DAYS; THE SENATE COMMITTEE WHICH
REPORTED ON THE SENATE VERSION OF THE BILL RECOMMENDED 90 DAYS, S. REP.
NO. 355, 61ST CONG., 2D SESS. 9.  FOR OTHER STAGES OF THE LEGISLATIVE
GIVE-AND-TAKE WHICH FINALLY PRODUCED A PERIOD OF 10 MONTHS AS THE
MAXIMUM SUSPENSION TERM, SEE 45 CONG. REC. 3373-3374, 3472, 4109-4110,
6500-6501, 6503, 6509, 6510-6511, 6783-6784, 6787-6788, 6900-6901, 6915
6921, 8239, 8473. 

FN9  36 STAT. 552. 

FN10  41 STAT. 486-487.  SECTION 418 OF THE ESCH-CUMMINS ACT ALSO
ADDED AN EXPRESS PROVISION THAT IF THE HEARING HAD NOT BEEN CONCLUDED
AT THE EXPIRATION OF THE 30-DAY EXTENSION PERIOD, "THE PROPOSED CHANGE
OF RATE, FARE, CHARGE, CLASSIFICATION, REGULATION, OR PRACTICE SHALL GO
INTO EFFECT AT THE END OF SUCH PERIOD  ...  ." 

FN11  SEE, E.G., STATEMENT OF COMMISSIONER CLARK, HEARINGS ON H.R.
4378 BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 66TH
CONG., 1ST SESS. 91, 2944; H.R. REP.  NO. 456, 66TH CONG., 1ST SESS. 20
21.  PRESIDENT TAFT'S 1910 MESSAGE EXPRESSLY ADVERTED TO THE
POSSIBILITY THAT THE HEARINGS MIGHT OUTLAST THE SUSPENSION PERIOD.  45
CONG. REC. 380. 

A RECENT SUMMARY INDICATES THAT ONLY ABOUT THREE-FIFTHS OF THE
INVESTIGATION AND SUSPENSION PROCEEDINGS ARE COMPLETED WITHIN THE SEVEN
MONTH PERIOD, BUT ONLY FOUR PERCENT OF SUCH CASES REQUIRE MORE THAN A
YEAR.  REMARKS OF COMMISSSIONER CHARLES A. WEBB, IN EXPEDITION OF
COMMISSION PROCEEDINGS, A PANEL DISCUSSION, 27 I.C.C. PRAC.  J. 15, 16
(1959).  PROFESSOR SHARFMAN IS AUTHORITY THAT AT THE TIME HE WROTE IT
WAS INVARIABLY THE PRACTICE OF CARRIERS VOLUNTARILY TO EXTEND THE
PERIOD AT LEAST WITH RESPECT TO PROPOSED INCREASES.  1 SHARFMAN, THE
INTERSTATE COMMERCE COMMISSION (1931), 203. 

FN12  SECTION 418 OF THE TRANSPORTATION ACT OF 1920, 41 STAT. 484,
486-487, AMENDING SEC. 15 OF THE INTERSTATE COMMERCE ACT. 

FN13  44 STAT. 1447-1448.  SEE S. REP. NO. 1508, 69TH CONG., 2D SESS.
4.  SINCE THE ENACTMENT OF SEC. 15(7), SIMILAR SUSPENSION PROVISIONS
HAVE BEEN INCLUDED IN NUMEROUS OTHER REGULATORY STATUTES.  SEE 49
U.S.C. SECS. 316(G), 318(C) (MOTOR CARRIER ACT); 49 U.S.C. SEC. 907(G),
(I) (WATER CARRIER ACT); 49 U.S.C. SEC. 1006(E) (FREIGHT FORWARDERS
ACT); 47 U.S.C. SEC. 204 (FEDERAL COMMUNICATIONS ACT); 16 U.S.C. SEC.
824DE) (FEDERAL POWER ACT); 15 U.S.C. SEC. 717CE) (NATURAL GAS ACT);
AND 49 U.S.C. SEC. 1482(G) (FEDERAL AVIATION ACT).  THE TERMS OF THESE
LATER STATUTES ARE VIRTUALLY IDENTICAL TO THOSE OF SEC. 15(7), ALTHOUGH
THE LENGTH OF THE PRESCRIBED SUSPENSION PERIOD VARIES.  HOWEVER, IT
SHOULD BE APPARENT THAT NOTHING WE HOLD WITH RESPECT TO SEC. 15(7)
NECESSARILY GOVERNS THE CONSTRUCTION AND APPLICATION OF THESE OTHER
SUSPENSION PROVISIONS. 

FN14  GREAT NORTHERN HELD ONLY THAT THE DISTRICT COURT LACKED POWER
TO ENJOIN INTRASTATE RATES WHICH HAD BEEN DULY PRESCRIBED BY A STATE
REGULATORY AGENCY AND WHICH THE RAILROADS WERE PROTESTING BEFORE THE
INTERSTATE COMMERCE COMMISSION AS DISCRIMINATORY AGAINST INTERSTATE
COMMERCE.  ALTHOUGH, UNLIKE THIS CASE, THE SITUATION THERE INVOLVED A
DANGER OF DIRECT CONFLICT BETWEEN FEDERAL AND STATE REGULATION, SEE 281
U.S., AT 426-430, THE REASONING THERE DOES SUGGEST THE COURT WAS OF THE
VIEW THAT EVEN IN THE ABSENCE OF SUCH A DIRECT CONFLICT, THE FEDERAL
COURTS MIGHT NOT ENJOIN PROPOSED RATES WHEN THE COMMISSION LACKED
EITHER THE INCLINATION OR THE POWER TO DO SO. 

FN15  E.G., M.C. KISER CO. V. CENTRAL OF GA. R. CO., 236 F. 573
(D.C.S.D. GA.), AFF'D, 239 F. 718 (C.A. 5TH CIR.); FREEPORT SULPHUR CO.
V. UNITED STATES, 199 F. SUPP. 913, 916 (D.C.S.D.N.Y.); LUCKENBACH S.S.
CO. V. UNITED STATES, 179 F. SUPP. 605, 609-610 (D.C.D. DEL.), VACATED
IN PART AS MOOT, 364 U.S. 280; CF. MANHATTAN TRANSIT CO. V. UNITED
STATES, 24 F. SUPP. 174, 177 (D.C.D. MASS.).  SEE ALSO DIRECTOR GENERAL
V. VISCOSE CO., 254 U.S. 498, 502, RECOGNIZING ON SIMILAR GROUNDS THAT
UNDER THE TRANSPORTATION ACT OF 1920 THE DISTRICT COURTS LACKED POWER
TO ENJOIN THE ACTION OF THE DIRECTOR GENERAL OF RAILROADS IN
INSTITUTING CHANGES OF COMMODITY CLASSIFICATIONS AND SIMILAR TERMS:
"THERE WAS AMPLE AND SPECIFIC PROVISION MADE THEREIN FOR DEALING WITH
THE SITUATION THROUGH THE COMMISSION, - FOR SUSPENDING THE SUPPLEMENT
OR RULE  ...  ."  254 U.S., AT 502.  CANTLAY & TANZOLA, INC., V. UNITED
STATES, 155 F. SUPP. 72 (D.C.S.D. CALIF.), UPON WHICH PETITIONERS RELY,
IS NOT CONTRARY.  THERE THE DISTRICT COURT FOUND NO NEED TO ENJOIN OR
SUSPEND THE PROPOSED RATES BECAUSE, PENDENTE LITE, THE CARRIERS HAD
VOLUNTARILY RESTORED THE PREVIOUS SCHEDULE.  BUT THE COURT SAID:  "THE
CONGRESSIONAL INTENT (UNDERLYING SEC. 15(7)) PLAINLY IS THAT THE COURTS
NOT INTERFERE TO SUSPEND CARRIER-MADE RATES 'PRIOR TO AN APPROPRIATE
FINDING BY THE INTERSTATE COMMERCE COMMISSION.'  "  115 F. SUPP., AT
83. 

FN16  SEE, E.G., PROFESSOR SHARFMAN'S VIEW THAT "UPON FAILURE OF THE
COMMISSION TO ISSUE AN ORDER WITHIN THIS PRESCRIBED PERIOD, THE
PROPOSED CHANGES IN RATES WERE AUTOMATICALLY TO BECOME EFFECTIVE,
ALTHOUGH THE COMMISSION MIGHT CONTINUE ITS INVESTIGATION AND BRING IT
TO DECISION."  1 SHARFMAN, THE INTERSTATE COMMERCE COMMISSION (1931),
202.  A CONTEMPORARY COMMENTATOR'S VIEW OF THE OPERATION OF THE NEW
STATUTE WAS AS FOLLOWS:  "IN OTHER WORDS, THE COMMISSION MAY SUSPEND
RATES FOR TEN MONTHS BEYOND THEIR EFFECTIVE DATE BUT NO LONGER, AND IF
THE INVESTIGATION IS NOT THEN COMPLETE, THE RATES AUTOMATICALLY GO INTO
EFFECT."  DIXON, THE MANN-ELKINS ACT, 24 QUARTERLY JOURNAL OF
ECONOMICS, AUGUST 1910, P. 593, AT 604.  FOR A CURRENT VIEW, SEE BROOKS
AND DAILY, THE COMMISSION'S POWER OF SUSPENSION AND JUDICIAL REVIEW
THEREOF, 27 I.C.C. PRAC.  J. 589, 599 (1960). 

FN17  SEE ALSO BOARD OF RAILROAD COMM'RS V. GREAT NORTHERN R. CO.,
SUPRA, AT 429-430; DIRECTOR GENERAL V. VISCOSE CO., 254 U.S. 498, 504;
IN RE ADVANCES IN RATES - WESTERN CASE, 20 I.C.C. 307, 313-314; BROOKS
AND DAILY, SUPRA, NOTE 16, AT 605.    FN18  SEE COMMISSIONER EASTMAN'S
DESCRIPTION OF THE EVOLUTION OF THIS COMPETITION, PETROLEUM PRODUCTS
FROM NEW ORLEANS, LA., GROUP, 194 I.C.C. 31, 44. 

FN19  SEE TEXAS & PACIFIC R. CO. V. ABILENE COTTON OIL CO., SUPRA, AT
440-441; DIRECTOR GENERAL V. VISCOSE CO., 254 U.S. 498; BALTIMORE &
O.R. CO. V. PITCAIRN COAL CO., 215 U.S. 481, 493-495.  IT HAS BEEN
POINTED OUT THAT "THE AGENCIES, THROUGH THEIR POWER TO SUSPEND OR DENY
SUSPENSION, OFTEN MAKE FINAL DETERMINATIONS OF WHAT THE RATES SHALL BE
DURING THE SUSPENSION PERIOD  ...  ."  1 DAVIS, ADMINISTRATIVE LAW
(1958), 442. 

FN20  28 U.S.C. SEC. 2325 REQUIRES THE CONVENING OF A THREE-JUDGE
DISTRICT COURT PURSUANT TO 28 U.S.C. SEC. 2284 TO ENJOIN EVEN
TEMPORARILY THE OPERATION OR EXECUTION "OF ANY ORDER OF THE INTERSTATE
COMMERCE COMMISSION  ...  ." 

THE COURT OF APPEALS ALSO SUGGESTED - THOUGH THE SUGGESTION HAS NOT
BEEN CHALLENGED BEFORE THIS COURT - THAT SEC. 16 OF THE CLAYTON ACT, 15
U.S.C. SEC. 26, MIGHT INDEPENDENTLY BAR THE INJUNCTIVE RELIEF SOUGHT
HERE.  308 F.2D, AT 185.  THAT SECTION RESTRICTS TO THE UNITED STATES,
IN SUITS FOR VIOLATIONS OF THE ANTITRUST LAWS, THE RIGHT TO SEEK
INJUNCTIVE RELIEF AGAINST ANY COMMON CARRIER "IN RESPECT OF ANY MATTER
SUBJECT TO THE REGULATION, SUPERVISION, OR OTHER JURISDICTION OF THE
INTERSTATE COMMERCE COMMISSION."  ITS APPLICABILITY WOULD, OF COURSE,
DEPEND UPON WHETHER OR NOT THE PETITIONERS' ACTION RESTS UPON CLAIMED
VIOLATIONS OF THE ANTITRUST LAWS.  CF. CENTRAL TRANSFER CO. V. TERMINAL
RAILROAD ASSN., 288 U.S. 469. 

FN21  SEE, E.G., CARLSEN V. UNITED STATES, 107 F. SUPP. 398
(D.C.S.D.N.Y.); BISON S.S. CORP. V. UNITED STATES, 182 F. SUPP. 63
(D.C.N.D. OHIO); LUCKENBACH S.S. CO. V. UNITED STATES, 179 F. SUPP. 605
(D.C.D. DEL.).  BUT CF. AMARILLO-BORGER EXPRESS, INC., V. UNITED
STATES, 138 F. SUPP. 411 (D.C.N.D. TEX.), VACATED AS MOOT, 352 U.S.
1028; SEATRAIN LINES, INC., V. UNITED STATES, 168 F. SUPP. 819
(D.C.S.D.N.Y.).  COMPARE GENERALLY GOODMAN, THE HISTORY AND SCOPE OF
FEDERAL POWER TO DELAY CHANGES IN TRANSPORTATION RATES, 27 I.C.C.
PRAC.  J. 245 (1959), WITH BROOKS AND DAILY, THE COMMISSION'S POWER OF
SUSPENSION AND JUDICIAL REVIEW THEREOF, ID., 589 (1960). 

FN22  THUS WE DO NOT REFLECT IN ANY WAY UPON DECISIONS WHICH HAVE
RECOGNIZED A LIMITED JUDICIAL POWER TO PRESERVE THE COURT'S
JURISDICTION OR MAINTAIN THE STATUS QUO BY INJUNCTION PENDING REVIEW OF
AN AGENCY'S ACTION THROUGH THE PRESCRIBED STATUTORY CHANNELS.  CF.
E.G., SCRIPPS-HOWARD RADIO, INC., V. FEDERAL COMMUNICATIONS COMM'N, 316
U.S. 4; WEST INDIA FRUIT & S.S. CO. V. SEATRAIN LINES, INC., 170 F.2D
775; BOARD OF GOVERNORS V. TRANSAMERICA CORP., 184 F.2D 311.  SUCH
POWER HAS BEEN DEEMED MERELY INCIDENTAL TO THE COURTS' JURISDICTION TO
REVIEW FINAL AGENCY ACTION, AND HAS NEVER BEEN RECOGNIZED IN DEROGATION
OF SUCH A CLEAR CONGRESSIONAL PURPOSE TO OUST JUDICIAL POWER AS THAT
MANIFESTED IN THE INTERSTATE COMMERCE ACT. 

IT HAS ALSO BEEN SUGGESTED THAT A JUDICIAL POWER OF THIS SORT MAY
HAVE SURVIVED BY REASON OF THE "SAVING CLAUSE" OF THE STATUTE, 49
U.S.C. SEC. 22(1).  THAT CONCLUSION WOULD, OF COURSE, FOLLOW ONLY IF
PRIOR TO THE ADOPTION OF THE ACT THERE HAD BEEN A CLEARLY RECOGNIZED
EQUITABLE POWER TO ENJOIN PROPOSED RATE CHANGES.  THIS, AS WE HAVE
ALREADY INDICATED, WAS NOT THE CASE.  MOREOVER, WE HAVE GENERALLY
REJECTED SUCH CONSTRUCTIONS OF THIS AND SIMILAR SAVING CLAUSES, SEE,
E.G., TEXAS & PACIFIC R. CO. V. ABILENE COTTON OIL CO., SUPRA;
T.I.M.E., INC., V. UNITED STATES, 359 U.S. 464, 472-474. 

FN23  SEE NORTH CAROLINA NATURAL GAS CORP. V. UNITED STATES, 200 F.
SUPP. 745, 750 (D.C.D. DEL.). THE COMMISSION'S REGULATIONS AND RULES
CONTEMPLATE ONLY AN INFORMAL HEARING BEFORE THE SUSPENSION BOARD UPON A
PROTEST, OF WHICH NO TRANSCRIPT IS TO BE MADE, ALTHOUGH RECONSIDERATION
MAY BE REQUESTED.  SEE 49 CFR SECS. 1.42, 1.200; SEE ALSO 1 DAVIS,
ADMINISTRATIVE LAW (1958), 441: "ALTHOUGH A HEARING CANNOT BE HELD ON
THE QUESTION WHETHER TO SUSPEND PENDING HEARING, IN MANY CASES HURRIED
CONFERENCES ARE HELD, WHICH PROVIDE SUBSTANTIAL SAFEGUARD AGAINST
ARBITRARY ACTION."  THE PRACTICE OF THE CIVIL AERONAUTICS BOARD UNDER A
VIRTUALLY IDENTICAL SUSPENSION STATUTE APPEARS TO BE MORE FORMAL, 14
CFR SEC. 302.505; SEE AIR FREIGHT FORWARDER ASSN., 8 C.A.B. 469, 474. 

FN24  WE SUGGEST NO LACK OF CONGRESSIONAL POWER TO GRANT EITHER
ADMINISTRATIVE OR JUDICIAL AUTHORITY TO EXTEND A SUSPENSION PERIOD
PRIOR TO COMPLETION OF THE ADMINISTRATIVE PROCEEDING.  UNDER OTHER
STATUTES CONGRESS HAS EVINCED A CLEAR INTENTION TO VEST THE COURTS WITH
SUCH POWER.  THE NATIONAL LABOR RELATIONS BOARD, FOR EXAMPLE, HAS
EXPRESSLY BEEN AUTHORIZED TO APPLY TO THE COURTS FOR "APPROPRIATE
TEMPORARY RELIEF OR RESTRAINING ORDER" PENDING THE BOARD'S DECISION OF
AN UNFAIR LABOR PRACTICE CASE.  29 U.S.C. SEC.  160(J).  CF. TRANS
PACIFIC FREIGHT CONFERENCE V. FEDERAL MARITIME BOARD, 112 U.S. APP.
D.C. 290, 295, 302 F.2D 875, 880. 

FN25  54 STAT. 899, WHICH HAS BEEN INSERTED BEFORE PART I OF THE
INTERSTATE COMMERCE ACT. 

FN26  SCHAFFER TRANSPORTATION CO. V. UNITED STATES, 355 U.S. 83, 87
88; ARROW TRANSPORTATION CO. V. UNITED STATES, 176 F. SUPP. 411, 416
(D.C.N.D. ALA.), AFF'D PER CURIAM SUB NOM.  STATE CORPORATION COMM'N V.
ARROW TRANSPORTATION CO., 361 U.S. 353. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE BLACK
JOIN, DISSENTING. 

THE COURT BY ITS ACTION TODAY SOUNDS THE DEATH KNELL FOR BARGE
TRANSPORTATION ON THE TENNESSEE RIVER.  THE WAR OF EXTERMINATION
BETWEEN THE RAILROADS AND BARGE LINES BEGAN YEARS AGO, AND, AS CHAIRMAN
EASTMAN SAID IN PETROLEUM PRODUCTS FROM NEW ORLEANS, LA., GROUP, 194
I.C.C. 31, 44 (1933), HAS BEEN EFFECTED "BY THE RAILROADS CUTTING RATES
WHERE THE (BARGE) COMPETITION EXISTED, TO WHATEVER EXTENT WAS NECESSARY
TO PARALYZE IT, AT THE SAME TIME MAINTAINING RATES AT A VERY HIGH LEVEL
ELSEWHERE."  INDEED, THIS COURT HAS ON MANY OCCASIONS HAD TO PROTECT
BARGE LINES FROM SUCH UNLAWFUL PRACTICES, EVEN IN CASES WHERE RAILROAD
RATE ACTIVITY HAS RECEIVED APPROVAL OF THE INTERSTATE COMMERCE
COMMISSION.  SEE DIXIE CARRIERS, INC., V. UNITED STATES, 351 U.S. 56
(1956), AND INTERSTATE COMMERCE COMM'N V. MECHLING, 330 U.S. 567
(1947).  SEE ALSO ARROW TRANSP.  CO. V. UNITED STATES, 176 F. SUPP. 411
(D.C.N.D. ALA. 1959).  AND JUST A FEW MONTHS AGO THERE WAS FILED HERE
IN NO. 746, MECHLING BARGE LINES, INC., V. UNITED STATES, ANOTHER CASE
IN WHICH THE APPELLANTS CONTEND THAT THE SAME OLD PRACTICES WERE
EMPLOYED.  ALTHOUGH THE COURT ADMITS THAT "IT CANNOT BE SAID THAT THE
LEGISLATIVE HISTORY  ...  (OF THE SUSPENSION POWER OF THE COMMISSION,
SEC. 15(7)) INCLUDES UNAMBIGUOUS EVIDENCE OF A DESIGN TO EXTINGUISH
...  JUDICIAL POWER  ...  ," IT NEVERTHELESS STRIPS THE COURTS OF ANY
POWER TO PREVENT (1) THE COLLECTION BY THE RAILROADS OF "RATES AND
CHARGES  ... WHICH WOULD BE UNJUST AND UNREASONABLE, IN VIOLATION OF
THE INTERSTATE COMMERCE ACT, AND CONSTITUTE UNFAIR AND DESTRUCTIVE
COMPETITIVE PRACTICES IN CONTRAVENTION OF THE NATIONAL TRANSPORTATION
POLICY ...  " AS FOUND BY THE INTERSTATE COMMERCE COMMISSION; (FN1) (2)
THE FRUSTRATION OF THE NATIONAL TRANSPORTATION POLICY UNDER WHICH
CONGRESS HAS COMMANDED THE COMMISSION TO PRESERVE EACH MEDIUM OF
TRANSPORTATION AGAINST UNLAWFUL AND DESTRUCTIVE PRACTICES AND TO GUARD
AGAINST THE CONSEQUENCES OF DISCRIMINATION; (3) THE COMPLETE
DESTRUCTION OF COMPETING BARGE LINES AS WELL AS GROSS DISCRIMINATION
AGAINST SHIPPERS AND LOCALITIES ALONG THE TENNESSEE RIVER.  I AGREE
WITH THE UNITED STATES, WHICH HAS FILED AT OUR SUGGESTION AN AMICUS
CURIAE BRIEF, THAT WHERE "A COMPETING CARRIER WILL BE DESTROYED AND
OTHERS WILL SUFFER GROSS DISCRIMINATION AND INJURY BEFORE THE
ADMINISTRATIVE PROCEEDING IS TERMINATED," THE APPROPRIATE FEDERAL COURT
DOES HAVE THE POWER TO ENJOIN SUCH AN EXTRAORDINARY INJURY PENDING
DECISION OF THE COMMISSION. 

                                        I. 

THE CONCLUSIONS BELOW THAT THE PROPOSED RATE REDUCTIONS WILL LIKELY
FORCE THE BARGE LINE OUT OF BUSINESS ARE NOT DISPUTED.  AS THE DISTRICT
COURT FOUND, THERE WAS "GRAVE DANGER THAT IRREPARABLE INJURY, LOSS OR
DAMAGE MAY BE INFLICTED  ...  IF THE PROPOSED RATES GO INTO EFFECT" AND
THAT PETITIONERS "WILL HAVE NO ADEQUATE REMEDY AT LAW."  ON ITS FACE
THE RATE REDUCTION IS BUT A CONTINUATION OF THE OLD POLICY FOUND BY
CHAIRMAN EASTMAN TO PARALYZE BARGE OPERATIONS - ACTIVITY TO WHICH THE
COURT NOW GIVES ITS BLESSING - BY A DRASTIC REDUCTION IN THE PRESENT
ALL-RAIL RATE ON MULTIPLE-CAR GRAIN SHIPMENTS WHILE MAINTAINING THE
HIGHER RATE ON THE EX-BARGE TRAFFIC.  THE NEW RATE FOR THE HAUL FROM
ST. LOUIS TO BIRMINGHAM, REDUCED FROM $8.70 PER TON TO A MERE $3.12, IS
AN EXAMPLE WHICH ILLUSTRATES THE EFFECT OF THE PROPOSED RATE
REDUCTION.  ARROW'S PRESENT RATE FOR SHIPMENTS BETWEEN THOSE POINTS IS
$5.48, INCLUDING EXPENSE TO ARROW OF $2.20 FOR THE 71-MILE RAIL LEG
FROM GUNTERSVILLE, ALABAMA, TO BIRMINGHAM AND 89 CENTS FOR TRANSFERRING
THE GRAIN FROM THE BARGE TO THE RAILS AT GUNTERSVILLE, WHICH LEAVES IT
ONLY $2.39 FOR TRANSPORTATION BY BARGE.  IN ORDER TO MEET SOUTHERN'S
NEW RATE ARROW WOULD HAVE TO REDUCE BY $2.36 ITS CHARGE ALLOCABLE TO
WATER TRAVEL, WHICH WOULD LEAVE IT EXACTLY 3 CENTS PER TON FOR THAT
HAUL.  I NOTE FURTHER THAT THE ALL-RAIL RATE FOR THE ST. LOUIS
BIRMINGHAM HAUL IS ONLY 92 CENTS MORE THAN THE CHARGE TO ARROW FOR THE
71-MILE GUNTERSVILLE-BIRMINGHAM RAIL TRIP.  THE RESULT OF THE
EFFECTUATION OF SUCH DRASTIC REDUCTIONS IS ELEMENTARY - ECONOMIC
DESTRUCTION OF AN IMPORTANT MODE OF TRANSPORTATION.  STILL THE COURT
REFUSES TO ALLOW THE EXERCISE OF AN INHERENT EQUITY POWER TO PREVENT AN
UNCONSCIONABLY DESTRUCTIVE PRACTICE WHICH IS DAMAGING NOT ONLY TO
ARROW, OR TO BARGE LINES GENERALLY, OR TO WATER SHIPPERS OR RIVER
PORTS, OR TO INDUSTRIES, BUT TO THE PUBLIC WELFARE ITSELF - ALL OF THIS
BY INFERENCE.  THE COURT SAYS "THAT CONGRESS MEANT TO FORECLOSE A
JUDICIAL POWER TO INTERFERE WITH THE TIMING OF RATE CHANGES  ...  OUT
OF HARMONY WITH THE UNIFORMITY OF RATE LEVELS  ...  ."  THAT REASONING,
IN THE LIGHT OF THE FACT THAT MANY OF THE PROPOSED RATES ARE LESS THAN
40% OF EXISTING ONES, COUPLED WITH THE FINDINGS OF THE COMMISSION AND
THE DISTRICT COURT AS TO THE PROBABLE RESULT OF THIS DRASTIC ACTION,
IS, WITH DUE DEFERENCE, ENTIRELY INSUPPORTABLE. 

                                     II. 

THE COURT SEEMS TO SAY THAT BECAUSE CONGRESS, BY SEC. 15(7), GAVE THE
COMMISSION THE POWER IN ITS DISCRETION TO SUSPEND RATES FOR A SHORT
PERIOD, A POWER WHICH IT NEVER PREVIOUSLY HAD, IT IPSO FACTO FORECLOSED
THE FEDERAL COURTS FROM EXERCISING A POWER THEY HAD ALWAYS POSSESSED,
I.E., EQUITY JURISDICTION TO PRESERVE THE STATUS QUO AND PREVENT
IRREPARABLE INJURY.  THE TWO POWERS ARE OF AN ENTIRELY DIFFERENT
CHARACTER.  THE SUSPENSION POWER GRANTED THE COMMISSION UNDER SEC.
15(7) IS PRIMARY AND IS EXERCISED IN ITS DISCRETION WHILE THE VALIDITY
OF A PROPOSED RATE IS UNDER CONSIDERATION, BUT IT IS LIMITED UNDER
PRESENT LAW TO A PERIOD OF SEVEN MONTHS.  NO CRITERIA OR GUIDELINES ARE
LAID DOWN FOR THE COMMISSION, THE ONLY PREREQUISITE BEING THE FILING OF
"A STATEMENT IN WRITING OF ITS REASONS FOR SUCH SUSPENSION."  HENCE THE
COMMISSION HAS A BROAD, GENERAL DISCRETION TO SUSPEND PROPOSED RATES
FOR A LIMITED PERIOD PENDING INVESTIGATION.  THE COURT, ON THE OTHER
HAND, CAN ACT ONLY IN COMPELLING CIRCUMSTANCES TO PREVENT AN
IRREPARABLE INJURY AND TO MAINTAIN THE STATUS QUO PENDING THE
COMMISSION'S DECISION - AN EQUITABLE POWER LONG RECOGNIZED AS EXISTING
IN THE COURTS.  THE EXERCISE OF THESE JUDICIAL POWERS IS BUT IN AID OF
AND ANCILLARY TO THE TEMPORARY SUSPENSION POWER OF THE COMMISSION AND
SUPPORTS RATHER THAN INTERFERES WITH THE LATTER'S JURISDICTION,
PREVENTING IRREPARABLE INJURY FROM RESULTING WHILE THE COMMISSION HAS
THE MATTER UNDER CONSIDERATION.  INDEED, THIS POWER SHOULD BE EXERCISED
ONLY IN THE MOST EXIGENT CIRCUMSTANCES, SUCH AS IN THE PRESENT CASE,
WHERE THE COMMISSION HAS FOUND A STRONG LIKELIHOOD OF IRREPARABLE
INJURY RESULTING FROM EFFECTUATION OF PROPOSED RATES, HAS IN FACT
EXERCISED THE FULL MEASURE OF ITS SUSPENSION POWER AND NOW FINDS ITSELF
POWERLESS TO PREVENT THOSE RATES FROM GOING INTO EFFECT.  I SUBMIT THAT
NEITHER THE LANGUAGE OF SEC. 15(7) NOR ITS LEGISLATIVE HISTORY SUPPORTS
THE REMOVAL OF JUDICIAL POWER TO ACT IN SUCH CIRCUMSTANCES. 

PRIOR TO 1910 THE COMMISSION HAD THE POWER NEITHER TO SUSPEND
PROPOSED RATES NOR "TO PREVENT BY DIRECT ACTION EXCESSIVELY LOW RATES,"
SKINNER & EDDY CORP. V. UNITED STATES, 249 U.S. 557, 566 (1919), AND
ITS EARLIEST SUSPENSIONS OF PROPOSED RATE REDUCTIONS OCCURRED
SUBSEQUENT TO 1910.  SEE SUSPENSION OF RATES ON PACKINGHOUSE PRODUCTS,
21 I.C.C. 68 (1911); BOARD OF TRADE OF CHICAGO V. ILLINOIS CENTRAL R.
CO., 26 I.C.C. 545 (1913).  IT WAS NOT UNTIL 1920 THAT THE COMMISSION
WAS GIVEN POWER TO EXERCISE DIRECT ACTION AND PRESCRIBE MINIMUM RATES. 
TRANSPORTATION ACT OF 1920, 41 STAT. 484, 49 U.S.C.  SEC. 15(1); SEE
UNITED STATES V. ILLINOIS CENTRAL R. CO., 263 U.S. 515, 525 (1924).  AT
THE TIME OF THE ENACTMENT OF SEC. 15(7), AS THE LEGISLATIVE HISTORY
SHOWS, THERE WAS NO EVIDENT CONCERN WITH RATE DECREASES AND PROTECTION
OF COMPETING CARRIERS, BUT ATTENTION WAS FOCUSED ON THE PROTECTION OF
SHIPPERS FROM EXCESSIVE RATE INCREASES WITH WHICH THE COMMISSION HAD
AMPLE POWER TO DEAL, THOUGH IT COULD NOT AT THAT TIME SUSPEND RATES. 
(FN2)  THIS OMISSION WAS NOTED ON THE FLOOR OF THE SENATE ON THE DAY
BEFORE THE VOTE WAS TAKEN ON SEC. 15(7) WHEN SENATOR HEYBURN OBSERVED
THAT "LITTLE OR NO CONSIDERATION SEEMS TO HAVE BEEN GIVEN TO THE
ADVISABILITY OF INCLUDING DECREASES IN RATES UNDER THE AMENDMENT."  45
CONG. REC. 6792.  THERE IS NO EVIDENCE THAT COMPLAINTS AS TO RATE
REDUCTIONS OCCUPIED ANY SIGNIFICANT PORTION OF THE COMMISSION'S DOCKET
PRIOR TO 1910.  PRIOR TO THAT TIME THE COMMISSION WAS CONCERNED ALMOST
EXCLUSIVELY WITH SHIPPERS' COMPLAINTS OF RATE INCREASES.  IT IS HARD
FOR ME TO SEE, THEREFORE, HOW IT COULD BE SAID THAT CONGRESS, WHEN IT
FIRST ENACTED THE SUSPENSION POWER IN 1910, WAS FACED WITH THE PROBLEM
OF THE SUSPENSION OF RATE DECREASES AS BETWEEN COMPETING CARRIERS WHEN
THERE HAD APPARENTLY BEEN VERY FEW, IF INDEED ANY, SUCH COMPLAINTS
PREVIOUS TO 1910.  THE COURT SAYS THAT PRIOR TO ENACTMENT OF THE
SUSPENSION POWER IN 1910, "SUCH COURTS AS ENTERTAINED JURISDICTION" IN
RATE CASES "WERE REACHING DIVERSE RESULTS" AND PRODUCING "CONFUSION AND
...  COMPETITIVE INEQUITIES," BUT THOSE CASES, AS FAR AS CAN BE
DETERMINED, DID NOT INVOLVE UNJUST AND DESTRUCTIVELY LOW RATES. 
THEREFORE, WHILE THERE WERE, AS THE COURT POINTS OUT, "CONFLICTS  ...
BETWEEN COMPETING CARRIERS" PRIOR TO 1910, THERE IS NO INDICATION THAT
ANY OF THESE CASES INVOLVED REDUCTIONS IN RATES.  FINALLY, A SUSPENSION
POWER SIMILAR TO THE "JUDICIAL POWER" WHICH THE COURT SAYS BROUGHT "THE
WHOLE PROBLEM TO A HEAD" IS NOW, BY STATUTE, EXERCISED BY THE
COMMISSION FOR A LIMITED PERIOD AS A MATTER OF PRIMARY JURISDICTION - A
POWER QUITE DIFFERENT FROM THAT WHICH THE DISTRICT COURT WAS ASKED TO
EXERCISE HERE.  A SIMPLE GRANT OF JURISDICTION TO AN ADMINISTRATIVE
AGENCY WITHOUT REFERENCE TO A LONG-RECOGNIZED EQUITY JURISDICTION WHICH
IS NOT INCONSISTENT THEREWITH IS A STRANGE WAY TO DISPOSE OF JUDICIAL
POWER.  SEE HEWITT-ROBINS INC. V. EASTERN FREIGHT-WAYS, INC., 371 U.S.
84 (1962).  I ATTRIBUTE NO SUCH PURBLINDNESS TO CONGRESS. 

IT CAN HARDLY BE SAID THAT THE GRANTING OF THIS PRIMARY JURISDICTION
WITH POWER TO SUSPEND FOR SEVEN MONTHS TOTALLY OUSTED THE EQUITY COURTS
OF THEIR TRADITIONAL POWER TO GRANT INJUNCTIVE RELIEF TO PRESERVE THE
STATUS QUO AND PREVENT IRREPARABLE INJURY WHILE THE CASE IS IN PROGRESS
IN ANOTHER FORUM.  THE CASES DO NOT SUPPORT THIS CONCLUSION WHERE THE
OTHER FORUM IS EITHER A COURT OF LAW, ERHARDT V. BOARO, 113 U.S. 537
(1885); LOUISVILLE & N.R. CO. V. WESTERN UNION TELEGRAPH CO., 207 F. 1
(C.A. 6TH CIR. 1913), OR AN ADMINISTRATIVE AGENCY.  TRANS-PACIFIC
FRGT.  CONF.  OF JAPAN V. FEDERAL MARITIME BD., 112 U.S. APP. D.C. 290,
295, 302 F.2D 875, 880 (1962); BOARD OF GOVERNORS V. TRANSAMERICA
CORP., 184 F.2D 311 (C.A. 9TH CIR. 1950); WEST INDIA FRUIT & STEAMSHIP
CO. V. SEATRAIN LINES, 170 F.2D 775 (C.A.2D CIR. 1948); ISBRANDTSEN V.
UNITED STATES, 81 F. SUPP. 544 (D.C.S.D.N.Y. 1948).  MOREOVER, WHENEVER
CONGRESS WANTED TO OUST THE JURISDICTION OF THE COURTS IT NOT ONLY KNEW
HOW TO DO IT BUT DID SO IN NO UNCERTAIN TERMS.  SEE, E.G., INTERNAL
REVENUE CODE OF 1954, SEC. 7421; NORRIS-LAGUARDIA ACT, 29 U.S.C. SECS.
101-115.  IN ADDITION TO THESE CONSIDERATIONS, I SUBMIT THAT THE
INTERSTATE COMMERCE ACT ITSELF SUPPORTS THE CONCLUSION THAT THE COURTS
RETAINED THEIR TRADITIONAL JURISDICTION.  SECTION 22(1) OF THE ACT, 24
STAT. 387, 49 U.S.C. SEC. 22(1), PROVIDES THAT NO PROVISION OF THE ACT
SHALL "IN ANY WAY ABRIDGE OR ALTER THE REMEDIES NOW EXISTING AT COMMON
LAW OR BY STATUTE, BUT THE PROVISIONS OF THIS ACT ARE IN ADDITION TO
SUCH REMEDIES."  THE "REMEDIES NOW EXISTING AT COMMON LAW" INCLUDE SUCH
EQUITABLE REMEDIES AS INJUNCTIONS.  KNAPP, STOUT & CO. V. MCCAFFREY,
177 U.S. 638 (1900). 

FINALLY, IN 1940, THE CONGRESS ADOPTED THE NATIONAL TRANSPORTATION
POLICY (54 STAT. 899, 49 U.S.C. PRECEDING SEC. 1) IN WHICH IT ENJOINED
THE COMMISSION TO:

"FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; ... ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS  ...  OR UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES;
...  ALL TO THE END OF DEVELOPING, COORDINATING, AND PRESERVING A
NATIONAL TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND RAIL, AS WELL AS
OTHER MEANS, ADEQUATE TO MEET THE NEEDS OF THE COMMERCE OF THE UNITED
STATES  ...  .  ALL OF THE PROVISIONS OF (THE INTERSTATE COMMERCE ACT)
SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE
ABOVE DECLARATION OF POLICY." 

THE POLICY OF "DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL
TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND RAIL  ...  ADEQUATE TO
MEET THE NEEDS OF THE COMMERCE OF THE UNITED STATES" WILL BE COMPLETELY
THWARTED IF ARROW AND OTHER BARGE LINES ON THE TENNESSEE RIVER ARE
FORCED OUT OF BUSINESS.  IT IS, INDEED, A SAD DAY FOR OUR JUDICIAL
PROCESSES WHEN OUR COURTS ARE RENDERED POWERLESS TO PREVENT THIS
MISCARRIAGE OF THE CLEAR POLICY OF OUR GOVERNMENT, THE FRUSTRATION OF
THE ADMITTED DUTIES OF THE INTERSTATE COMMERCE COMMISSION AND THE
DESTRUCTION OF AN ENTIRE SYSTEM OF TRANSPORTATION. 

IN SHORT, THIS CASE PRESENTS A SITUATION PECULIARLY APPROPRIATE FOR
THE EXERCISE OF THE INHERENT EQUITY JURISDICTION OF A FEDERAL COURT TO
SUPPLEMENT THE NOW-EXHAUSTED SUSPENSION POWER OF THE COMMISSION,
CONSISTENT WITH THE COMMISSION'S CONCLUSION THAT SUCH SUSPENSION IS IN
THE PUBLIC INTEREST AND CONSISTENT WITH THE AFFIRMATIVE MANDATE OF THE
CONGRESS IN THE NATIONAL TRANSPORTATION POLICY. 

IN ADDITION, WHILE IT WOULD BE INAPPROPRIATE TO DISCUSS THE
CONSTITUTIONAL QUESTIONS RAISED AS TO SEC. 15(7), THE OPINION OF THE
COURT EVOKES GRAVE DOUBT ABOUT THE CONSTITUTIONALITY OF THE STATUTE, AS
INTERPRETED.  SEE PORTER V. INVESTORS SYNDICATE, 286 U.S. 461, 470-471
(1932); PACIFIC TEL. & TEL. CO. V. KUYKENDALL, 265 U.S. 196, 201, 204
205 (1924). 

I DISSENT. 

FN1  WE NOTE THAT ON JANUARY 21, 1963, WHILE THE CASE WAS PENDING
HERE, THE DIVISION OF THE COMMISSION WHICH HAD PREVIOUSLY CONSIDERED
THE CASE CONCLUDED THAT SOME OF THE RATES PROPOSED BY SOUTHERN WERE
LAWFUL BUT STILL FOUND MOST (88%) OF THE ENTIRE RATE PACKAGE OF ALL OF
THE RAILROADS UNLAWFUL.  EVEN THIS FINDING, HOWEVER, IS NOT FINAL, FOR
IT IS SUBJECT TO AND IS IN FACT PENDING RECONSIDERATION BEFORE THE FULL
COMMISSION. 

FN2  IN 1910 CONGRESS ENACTED SEC. 4(2) OF THE ACT, THE PROVISIONS OF
WHICH EVIDENCE AN AWARENESS THAT RAILROAD RATE REDUCTIONS COULD BE
DESTRUCTIVE COMPETITIVE PRACTICES, SEE SKINNER & EDDY CORP. V. UNITED
STATES, 249 U.S. 557, 566-567 (1919), BUT SEC. 4(2) CLEARLY DOES NOT
PROHIBIT SUCH PRACTICES.  NOT UNTIL THE TRANSPORTATION ACT OF 1920, AS
WE HAVE NOTED, WAS THE COMMISSION GIVEN THE POWER TO PRESCRIBE MINIMUM
RATES. 
..END :






INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO V. CENTRAL AIRLINES 372
U.S. 682 


NO. 61.  ARGUED FEBRUARY 19-20, 1963.  - DECIDED APRIL 15, 1963.  - 295
F.2D 209, REVERSED. 


A SUIT IN A FEDERAL DISTRICT COURT TO ENFORCE AN AWARD OF AN AIRLINE
SYSTEM BOARD OF ADJUSTMENT, CREATED BY A CONTRACT BETWEEN AN AIRLINE
AND A LABOR UNION PURSUANT TO SEC.  204 OF THE RAILWAY LABOR ACT AND
WHOSE DECISIONS ARE FINAL AND BINDING UPON THE PARTIES, ARISES OUT OF
THE RAILWAY LABOR ACT AND IS GOVERNED BY FEDERAL LAW.  THEREFORE, IT IS
(1) A SUIT ARISING UNDER A LAW OF THE UNITED STATES OF WHICH THE
DISTRICT COURT HAS JURISDICTION UNDER 28 U.S.C. SEC. 1331, IF THE
JURISDICTIONAL AMOUNT IS INVOLVED, AND (2) A SUIT ARISING UNDER A LAW
REGULATING COMMERCE OF WHICH THE DISTRICT COURT HAS JURISDICTION UNDER
28 U.S.C. SEC. 1337, IRRESPECTIVE OF THE AMOUNT INVOLVED.  PP. 682
696. 

INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, ET AL. V. CENTRAL
AIRLINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT AIRLINE DISCHARGED THE SIX INDIVIDUAL PETITIONERS IN
APRIL 1958 AFTER THEY REFUSED TO ATTEND DISCIPLINARY HEARINGS WITHOUT
HAVING A UNION REPRESENTATIVE PRESENT.  THE PETITIONING UNION AND THE
EMPLOYEES INITIATED GRIEVANCES OVER THESE DISCHARGES, WHICH WERE NOT
SETTLED BETWEEN THE PARTIES AND WHICH WERE PRESENTED TO THE SYSTEM
BOARD OF ADJUSTMENT, ESTABLISHED BY AGREEMENT BETWEEN THE UNION AND THE
AIRLINE ACCORDING TO THE RAILWAY LABOR ACT, 44 STAT. 577, AS AMENDED,
45 U.S.C. SECS.  151-188.  THE FOUR-MAN BOARD OF ADJUSTMENT DEADLOCKED,
A NEUTRAL REFEREE WAS APPOINTED BY THE NATIONAL MEDIATION BOARD, AND AN
AWARD WAS THEN RENDERED ORDERING THE INDIVIDUAL PETITIONERS REINSTATED
WITHOUT LOSS OF SENIORITY AND WITH BACK PAY.  CENTRAL REFUSED TO COMPLY
AND PETITIONERS FILED THIS SUIT IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF TEXAS FOR ENFORCEMENT OF THE AWARD. 

THE COMPLAINT RECITED THE CERTIFICATION OF THE UNION AS THE
COLLECTIVE BARGAINING AGENT BY THE NATIONAL MEDIATION BOARD PURSUANT TO
AN ELECTION HELD UNDER THE RAILWAY LABOR ACT, DISCLOSED THE EXECUTION
OF A COLLECTIVE BARGAINING CONTRACT WITH THE COMPANY, AND ATTACHED AS
AN EXHIBIT A COPY OF ANOTHER CONTRACT WITH CENTRAL ESTABLISHING A
SYSTEM BOARD OF ADJUSTMENT.  THIS CONTRACT STATED, "IN COMPLIANCE WITH
HEREBY ESTABLISHED A SYSTEM BOARD OF ADJUSTMENT FOR THE PURPOSE OF
ADJUSTING AND DECIDING DISPUTES  ...  ."   UNDER THE EXPRESS TERMS OF
THE CONTRACT, "DECISIONS OF THE BOARD IN ALL CASES PROPERLY REFERABLE
TO IT SHALL BE FINAL AND BINDING UPON THE PARTIES" AND, WHEN A NEUTRAL
REFEREE IS SITTING WITH THE BOARD, "A MAJORITY VOTE OF THE BOARD SHALL
BE FINAL, BINDING, AND CONCLUSIVE BETWEEN THE COMPANY AND THE
ASSOCIATION AND ANYONE THEY MAY REPRESENT HAVING AN INTEREST IN THE
DISPUTE."  THE COMPLAINT SET OUT IN SOME DETAIL THE ACTION AND DECISION
OF THE SYSTEM BOARD AND A COPY OF ITS AWARD WAS ATTACHED.   ALLEGING
THAT CENTRAL HAD REFUSED TO COMPLY WITH THE TERMS OF THE AWARD AND THAT
THE SUIT "ARISES UNDER THE LAWS OF THE UNITED STATES, SPECIFICALLY
UNDER THE RAILWAY LABOR ACT AS SET OUT MORE PARTICULARLY HEREINABOVE,"
PETITIONERS REQUESTED THE "ENFORCEMENT OF THE AFORESAID SYSTEM BOARD
AWARD  ... AND THAT JUDGMENT BE ENTERED ORDERING DEFENDANT TO COMPLY
WITH SAID AWARD  ...  ." 

ALTHOUGH THE GIST OF THE COMPLAINT WAS THAT CENTRAL WAS OBLIGED TO
COMPLY WITH THE AWARD BY REASON OF THE RAILWAY LABOR ACT, THE DISTRICT
COURT GRANTED CENTRAL'S MOTION TO DISMISS FOR LACK OF JURISDICTION,
CONCLUDING THAT THERE WAS NO DIVERSITY OF CITIZENSHIP (WHICH WAS NOT
DISPUTED) AND THAT THE CASE DID NOT ARISE UNDER THE LAWS OF THE UNITED
STATES AS REQUIRED BY 28 U.S.C. SEC. 1331.  (FN1)  THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT AFFIRMED ON THE AUTHORITY OF ITS PREVIOUS
DECISION IN METCALF V. NATIONAL AIRLINES, 271 F.2D 817, RULING THAT THE
COMPLAINT DID NOT DISCLOSE "AFFIRMATIVELY A FEDERALLY-CREATED CAUSE OF
ACTION" AND THAT "THIS SUIT IS NOTHING MORE THAN A STATE-CREATED ACTION
TO CONSTRUE A CONTRACT."  295 F.2D 209.  CERTIORARI WAS GRANTED TO
CONSIDER THE IMPORTANT QUESTION OF WHETHER A SUIT TO ENFORCE AN AWARD
OF AN AIRLINE SYSTEM BOARD OF ADJUSTMENT IS A SUIT ARISING UNDER THE
LAWS OF THE UNITED STATES UNDER 28 U.S.C. SEC. 1331 OR A SUIT ARISING
UNDER A LAW REGULATING COMMERCE UNDER 28 U.S.C. SEC. 1337.  (FN2)  369
U.S. 802.  WE HAVE CONCLUDED THAT THIS QUESTION MUST BE ANSWERED IN THE
AFFIRMATIVE AND THAT THE DISTRICT COURT HAS JURISDICTION TO PROCEED
WITH THE SUIT. 

       I. 

IN 1936, CONGRESS EXTENDED THE RAILWAY LABOR ACT TO COVER THE THEN
SMALL-BUT-GROWING AIR TRANSPORTATION INDUSTRY.  49 STAT. 1189, 45
U.S.C. SECS. 181-188.  ITS GENERAL AIM WAS TO EXTEND TO AIR CARRIERS
AND THEIR EMPLOYEES THE SAME BENEFITS AND OBLIGATIONS AVAILABLE AND
APPLICABLE IN THE RAILROAD INDUSTRY.  (FN3)  BUT THERE WAS TO BE A
SIGNIFICANT VARIATION.  THE 1936 AMENDMENTS MADE APPLICABLE TO THE
AIRLINES ALL OF THE PROVISIONS OF THE RAILWAY LABOR ACT, EXCEPTING SEC.
3, 45 U.S.C. SEC. 153, DEALING WITH THE NATIONAL RAILROAD ADJUSTMENT
BOARD; BUT INCLUDING SEC. 1, 45 U.S.C. SEC. 151, CONTAINING
DEFINITIONS; SEC. 2, 45 U.S.C. SEC. 151A, THE ACT'S STATEMENT OF
PURPOSES; SECS. 4 AND 5, 45 U.S.C. SECS. 154-155, RELATIVE TO THE
NATIONAL MEDIATION BOARD AND ITS FUNCTIONS; AND SECS. 7, 8 AND 9, 45
U.S.C. SECS. 157-159, RELATING TO VOLUNTARY ARBITRATION AND EMERGENCY
BOARDS.  SEC. 202, 45 U.S.C. SEC. 182.  IN THE PLACE OF SEC. 3,
CONGRESS PROVIDED IN SEC. 205, 45 U.S.C. SEC. 185, THAT THE CREATION OF
A NATIONAL AIR TRANSPORT BOARD WOULD BE POSTPONED UNTIL "IN THE
JUDGMENT OF THE NATIONAL MEDIATION BOARD, IT SHALL BE NECESSARY TO HAVE
A PERMANENT NATIONAL BOARD OF ADJUSTMENT  ...  ."  UNTIL THE
ESTABLISHMENT OF THE NATIONAL BOARD FOR THE AIRLINES INDUSTRY, SEC.
204, 45 U.S.C. SEC.  184, REQUIRED THE FORMATION OF SYSTEM, GROUP, OR
REGIONAL BOARDS OF ADJUSTMENT: 

"IT SHALL BE THE DUTY OF EVERY CARRIER AND OF ITS EMPLOYEES, ACTING
THROUGH THEIR REPRESENTATIVES, SELECTED IN ACCORDANCE WITH THE
PROVISIONS OF SECTIONS 181-188 OF THIS TITLE, TO ESTABLISH A BOARD OF
ADJUSTMENT OF JURISDICTION NOT EXCEEDING THE JURISDICTION WHICH MAY BE
LAWFULLY EXERCISED BY SYSTEM, GROUP, OR REGIONAL BOARDS OF ADJUSTMENT,
UNDER THE AUTHORITY OF SECTION 153 OF THIS TITLE." 

THE DUTY IMPOSED UPON THE PARTIES TO CREATE ADJUSTMENT BOARDS TO
SETTLE GRIEVANCES WAS MORE THAN A CASUAL SUGGESTION TO THE AIR
INDUSTRY.  THE ORIGINAL VERSION OF S. 2496, WHICH, AS AMENDED, BECAME
LAW, PROVIDED FOR VOLUNTARY BOARDS OF ADJUSTMENT AS IN THE CASE OF THE
RAILROADS AND EXTENDED THE JURISDICTION OF THE NATIONAL MEDIATION BOARD
TO MINOR AS WELL AS MAJOR DISPUTES.  (FN4)  BUT UPON THE SUGGESTION OF
THE NATIONAL MEDIATION BOARD, ITS JURISDICTION WAS NOT EXPANDED, AND
THE LAW AS FINALLY PASSED MADE COMPULSORY THE ESTABLISHMENT OF THE
ADJUSTMENT BOARDS.  (FN5)  UNTIL AND UNLESS THE NATIONAL MEDIATION
BOARD DETERMINED TO CREATE A NATIONAL BOARD, THE PARTIES WERE PLACED
UNDER THE STATUTORY DUTY OF ESTABLISHING AND UTILIZING SYSTEM, GROUP,
OR REGIONAL BOARDS OF ADJUSTMENT FOR THE PURPOSE OF ADJUSTING AND
DECIDING DISPUTES ARISING UNDER EXISTING CONTRACTS. 

THE OBLIGATION WHICH SEC. 204 FASTENED UPON THE CARRIERS AND THEIR
EMPLOYEES CANNOT BE READ IN ISOLATION.  ITS TRUE SIGNIFICANCE MUST BE
DRAWN FROM ITS CONTEXT AS PART OF THE RAILWAY LABOR ACT WHICH ITSELF
DRAWS MEANING FROM ITS HISTORY.  (FN6)  SEE ROMERO V. INTERNATIONAL
TERM.  CO., 358 U.S. 354, 360. 

CONGRESS HAS LONG CONCERNED ITSELF (FN7) WITH MINIMIZING
INTERRUPTIONS IN THE NATION'S TRANSPORTATION SERVICES BY STRIKES AND
LABOR DISPUTES AND HAS MADE SUCCESSIVE ATTEMPTS TO ESTABLISH EFFECTIVE
MACHINERY TO RESOLVE DISPUTES NOT ONLY AS TO WAGES, HOURS, AND WORKING
CONDITIONS, THE SO-CALLED MAJOR DISPUTES CONNECTED WITH A NEGOTIATION
OF CONTRACTS OR ALTERATIONS IN THEM, BUT ALSO AS TO THE INTERPRETATION
AND APPLICATION OF EXISTING CONTRACTS, THE MINOR DISPUTES OF THE TYPE
INVOLVED IN THIS CASE.  IN 1920, (FN8) THE LATTER CATEGORY WAS DEALT
WITH BY PROVIDING THAT THE PARTIES "MAY" CREATE BOARDS OF ADJUSTMENT TO
HANDLE THESE GRIEVANCES WHICH, HOWEVER, IF UNRESOLVED BY THESE BOARDS
WERE TO BE REFERRED TO THE RAILWAY LABOR BOARD WHOSE DECISIONS WERE NOT
LEGALLY ENFORCEABLE.  (FN9)  THE RESULTS WERE HIGHLY UNSATISFACTORY,
(FN10) AND IN 1926 CONGRESS REQUIRED THAT "BOARDS OF ADJUSTMENT SHALL
BE CREATED BY AGREEMENT."  (FN11)  THE BOARDS WERE TO BE COMPOSED OF AN
EQUAL NUMBER OF EMPLOYEE AND EMPLOYER REPRESENTATIVES AND THEIR
DECISIONS WERE TO "BE FINAL AND BINDING ON BOTH PARTIES TO THE DISPUTE;
AND IT SHALL BE THE DUTY OF BOTH TO ABIDE BY SUCH DECISIONS."  (FN12) 

IN SPITE OF THE MANDATE OF THE 1926 ACT, CREATION OF ADJUSTMENT
BOARDS DID NOT AUTOMATICALLY FOLLOW.  FURTHERMORE, THERE WAS NO
PROVISION IN THE ACT FOR BREAKING DEADLOCKS OF THE BOARD, WHICH WERE
FREQUENT AND WHICH RESULTED IN A MYRIAD OF MINOR DISPUTES GOING
UNRESOLVED.  AS A RESULT, SEE ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S.
711, 725-726, IN 1934 THE ACT WAS AMENDED TO CREATE THE NATIONAL
RAILROAD ADJUSTMENT BOARD, THE DIVISIONS OF WHICH WERE TO HEAR DISPUTES
REFERRED BY EITHER PARTY AND "GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY,
RULES, OR WORKING CONDITIONS."  SEC. 3, 45 U.S.C. SEC. 153 FIRST (I). 
IN THE EVENT OF DEADLOCKS IN A DIVISION, THE NATIONAL MEDIATION BOARD
WAS REQUIRED TO NAME A NEUTRAL REFEREE TO SIT WITH THE APPROPRIATE
DIVISION OF THE BOARD TO DETERMINE THE CASE.  SEC. 3 FIRST (L).  IT WAS
PROVIDED IN SEC. 3 FIRST (M) THAT "THE AWARDS OF THE SEVERAL DIVISIONS
OF THE ADJUSTMENT BOARD SHALL BE STATED IN WRITING  ...  AND THE AWARDS
SHALL BE FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE, EXCEPT
INSOFAR AS THEY SHALL CONTAIN A MONEY AWARD  ...  ."  SECTION 3 FIRST
(P) PROVIDED FOR A SUIT IN THE UNITED STATES DISTRICT COURTS TO ENFORCE
CERTAIN AWARDS. 

WHILE THUS ESTABLISHING A NATIONAL ADJUSTMENT BOARD WITH POWER TO
MAKE FINAL AWARDS WITH THE HELP OF NEUTRAL PERSONS WHERE NECESSARY,
CONGRESS ALSO PROVIDED IN SEC. 3 SECOND FOR VOLUNTARY SYSTEM BOARDS: 

"NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT ANY INDIVIDUAL
CARRIER, SYSTEM, OR GROUP OF CARRIERS AND ANY CLASS OR CLASSES OF ITS
OR THEIR EMPLOYEES, ALL ACTING THROUGH THEIR REPRESENTATIVES, SELECTED
IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER, FROM MUTUALLY
AGREEING TO THE ESTABLISHMENT OF SYSTEM, GROUP, OR REGIONAL BOARDS OF
ADJUSTMENT FOR THE PURPOSE OF ADJUSTING AND DECIDING DISPUTES OF THE
CHARACTER SPECIFIED IN THIS SECTION.  IN THE EVENT THAT EITHER PARTY TO
SUCH A SYSTEM, GROUP, OR REGIONAL BOARD OF ADJUSTMENT IS DISSATISFIED
WITH SUCH ARRANGEMENT, IT MAY UPON NINETY DAYS' NOTICE TO THE OTHER
PARTY ELECT TO COME UNDER THE JURISDICTION OF THE ADJUSTMENT BOARD." 
45 U.S.C. SEC. 153 SECOND. 

THIS MACHINERY WAS DESIGNED TO SERVE THE STATED PURPOSES OF THE ACT
WHICH WERE, AMONG OTHERS:  "TO AVOID ANY INTERRUPTION TO COMMERCE OR TO
THE OPERATION OF ANY CARRIER ENGAGED THEREIN" AND "TO PROVIDE FOR THE
PROMPT AND ORDERLY SETTLEMENT OF ALL DISPUTES GROWING OUT OF GRIEVANCES
OR OUT OF THE INTERPRETATION OR APPLICATION OF AGREEMENTS COVERING
RATES OF PAY, RULES, OR WORKING CONDITIONS."  SEC. 2, 45 U.S.C. SEC.
151A.  IMPLEMENTING SUCH GOALS, SEC. 2 FIRST, 45 U.S.C. SEC. 152 FIRST,
MADE IT "THE DUTY OF ALL CARRIERS, THEIR OFFICERS, AGENTS, AND
EMPLOYEES TO EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN
AGREEMENTS  ...  AND TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF THE
APPLICATION OF SUCH AGREEMENTS OR OTHERWISE, IN ORDER TO AVOID ANY
INTERRUPTION TO COMMERCE."  THE STATUTE DIRECTED THAT MINOR DISPUTES BE
HANDLED ON THE PROPERTY IN THE USUAL MANNER, BUT FAILING ADJUSTMENT
EITHER PARTY COULD TAKE THE MATTER TO THE ADJUSTMENT BOARD, WHICH WAS
TO HEAR AND DECIDE IT.  THIS PROVISION IS APPLICABLE BOTH TO RAIL (SEC.
3 SECOND) AND AIR (SEC. 204) CARRIERS. 

                                        II. 

IN VIEW OF THE CLEARLY STATED PURPOSES OF THE ACT AND OF ITS HISTORY,
REFLECTING AS IT DOES A STEADY CONGRESSIONAL INTENT TO MOVE TOWARD A
RELIABLE AND EFFECTIVE SYSTEM FOR THE SETTLEMENT OF GRIEVANCES, WE
BELIEVE CONGRESS INTENDED NO HIATUS IN THE STATUTORY SCHEME WHEN IT
POSTPONED THE ESTABLISHMENT OF A NATIONAL AIR TRANSPORT ADJUSTMENT
BOARD AND INSTEAD PROVIDED FOR COMPULSORY SYSTEM, GROUP, OR REGIONAL
BOARDS.  ALTHOUGH THE SYSTEM BOARDS WERE EXPECTED TO BE TEMPORARY
ARRANGEMENTS, WE CANNOT BELIEVE THAT CONGRESS INTENDED AN INTERIM
PERIOD OF CONFUSION AND CHAOS OR MEANT TO LEAVE THE ESTABLISHMENT OF
THE BOARDS TO THE WHIM OF THE PARTIES.  INSTEAD, IT INTENDED THE
STATUTORY COMMAND TO BE LEGALLY ENFORCEABLE IN THE COURTS AND THE
BOARDS TO BE ORGANIZED AND OPERATED CONSISTENT WITH THE PURPOSES OF THE
ACT. 

WE HAVE HELD OTHER DUTIES IMPOSED UPON THE CARRIERS AND THEIR
EMPLOYEES BY THE RAILWAY LABOR ACT BINDING AND THEIR BREACH REDRESSABLE
IN THE FEDERAL COURTS, SUCH AS THE DUTY TO BARGAIN, VIRGINIAN R. CO. V.
SYSTEM FEDERATION, 300 U.S. 515, 545, AND THE DUTY OF A CERTIFIED
BARGAINING REPRESENTATIVE TO REPRESENT ALL MEMBERS OF THE CRAFT WITHOUT
DISCRIMINATION, STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192.  (FN13)
WE TAKE A SIMILAR VIEW OF THE DUTY TO ESTABLISH ADJUSTMENT BOARDS UNDER
SEC. 204; AND AS THE COURT SAID IN TUNSTALL V. BROTHERHOOD OF
LOCOMOTIVE ENGINEMEN, 323 U.S. 210, 213, QUOTING FROM DEITRICK V.
GREANEY, 309 U.S. 190, 200-201, "THE EXTENT AND NATURE OF THE LEGAL
CONSEQUENCES" OF THIS DUTY "THOUGH LEFT BY THE STATUTE TO JUDICIAL
DETERMINATION, ARE NEVERTHELESS TO BE DERIVED FROM IT AND THE FEDERAL
POLICY WHICH IT HAS ADOPTED."  (FN14) 

IT IS THEREFORE THE STATUTE AND THE FEDERAL LAW WHICH MUST DETERMINE
WHETHER THE CONTRACTUAL ARRANGEMENTS MADE BY THE PARTIES ARE SUFFICIENT
TO DISCHARGE THE MANDATE OF SEC. 204 AND ARE CONSISTENT WITH THE ACT
AND ITS PURPOSES.  IT IS FEDERAL LAW WHICH WOULD DETERMINE WHETHER A
SEC. 204 CONTRACT IS VALID AND ENFORCEABLE ACCORDING TO ITS TERMS.  IF
THESE CONTRACTS ARE TO SERVE THIS FUNCTION UNDER SEC. 204, THEIR
VALIDITY, INTERPRETATION, AND ENFORCEABILITY CANNOT BE LEFT TO THE LAWS
OF THE MANY STATES, FOR IT WOULD BE FATAL TO THE GOALS OF THE ACT IF A
CONTRACTUAL PROVISION CONTRARY TO THE FEDERAL COMMAND WERE NEVERTHELESS
ENFORCED UNDER STATE LAW OR IF A CONTRACT WERE STRUCK DOWN EVEN THOUGH
IN FURTHERANCE OF THE FEDERAL SCHEME.  (FN15)  THE NEEDS OF THE SUBJECT
MATTER MANIFESTLY CALL FOR UNIFORMITY.  (FN16)  COMPARE TEAMSTERS UNION
V. LUCAS FLOUR CO., 369 U.S. 95, 103-104. 

THE CONTRACTS AND THE ADJUSTMENT BOARDS FOR WHICH THEY PROVIDE ARE
CREATIONS OF FEDERAL LAW AND BOUND TO THE STATUTE AND ITS POLICY.  IF
ANY PROVISION CONTAINED IN A SEC. 204 CONTRACT IS ENFORCEABLE, IT IS
BECAUSE OF CONGRESSIONAL SANCTION:  "THE FEDERAL STATUTE IS THE SOURCE
OF THE POWER AND AUTHORITY  ...  .  THE ENACTMENT OF THE FEDERAL
STATUTE  ...  IS THE GOVERNMENTAL ACTION ...  THOUGH IT TAKES A PRIVATE
AGREEMENT TO INVOKE THE FEDERAL SANCTION  ...  .  A UNION AGREEMENT
MADE PURSUANT TO THE RAILWAY LABOR ACT HAS, THEREFORE, THE IMPRIMATUR
OF THE FEDERAL LAW UPON IT ...  ."  RAILWAY DEPT. V. HANSON, 351 U.S.
225, 232.  THAT IS, THE SEC. 204 CONTRACT, LIKE THE LABOR MANAGEMENT
RELATIONS ACT SEC. 301 CONTRACT, IS A FEDERAL CONTRACT AND IS THEREFORE
GOVERNED AND ENFORCEABLE BY FEDERAL LAW, IN THE FEDERAL COURTS.  THE
SITUATION PRESENTED HERE IS ANALOGOUS TO THAT IN AMERICAN SURETY CO. V.
SHULZ, 237 U.S. 159, A SUIT ON A SUPERSEDEAS BOND IN AN APPEAL FROM A
DISTRICT COURT TO THE COURT OF APPEALS.  WHEN THE JUDGMENT AGAINST THE
APPELLANT WAS AFFIRMED AND HE FAILED TO PAY IT, THE APPELLEE SUED THE
SURETY IN THE DISTRICT COURT.  THIS COURT HELD THAT THERE WAS "ARISING
UNDER" JURISDICTION, SINCE THE BOND HAD BEEN GIVEN PURSUANT TO THE
FEDERAL STATUTE REQUIRING ONE WHEN APPEALS WERE TAKEN; THE CONSTRUCTION
OF THE BOND AND THE EXTENT OF THE SURETY COMPANY'S LIABILITY UNDER IT
WERE SAID TO BE FEDERAL QUESTIONS WHICH THE FEDERAL COURTS HAD
JURISDICTION TO DETERMINE.  (FN17) 

MORE SPECIFICALLY, THE PROVISIONS OF A SEC. 204 CONTRACT, SUCH AS
THOSE GOVERNING THE COMPOSITION OF THE ADJUSTMENT BOARD, THE PROCEDURES
TO BE EMPLOYED AS TO NOTICE AND HEARING OR FOR BREAKING DEADLOCKS, OR
THE FINALITY TO BE ACCORDED BOARD AWARDS, ARE TO BE JUDGED AGAINST THE
ACT AND ITS PURPOSES AND ENFORCED OR INVALIDATED IN A FASHION
CONSISTENT WITH THE STATUTORY SCHEME.  (FN18) THERE MAY BE, FOR
EXAMPLE, ANY NUMBER OF PROVISIONS WITH REGARD TO THE FINALITY OF AN
AWARD THAT WOULD SATISFY THE REQUIREMENTS OF SEC. 204 BUT WE ARE QUITE
SURE THAT SOME SUCH PROVISION IS REQUISITE TO A SEC. 204 CONTRACT AND
THAT THE FEDERAL LAW WOULD LOOK WITH FAVOR UPON CONTRACTUAL PROVISIONS
AFFORDING SOME DEGREE OF FINALITY TO SYSTEM BOARD AWARDS.  CONGRESS HAS
LONG SINCE ABANDONED THE APPROACH OF THE COMPLETELY UNENFORCEABLE AWARD
WHICH WAS USED IN THE 1920 ACT.  ELGIN, J.&E.R. CO. V. BURLEY, SUPRA.
ADJUSTMENT BOARD DECISION WERE EXPRESSLY MADE FINAL AND BINDING IN THE
1926 ACT, THE NATIONAL RAILROAD ADJUSTMENT BOARD AWARDS WERE MADE
ENFORCEABLE IN THE FEDERAL COURTS BY THE 1934 AMENDMENTS, AND THE
AWARDS UNDER VOLUNTARY ARBITRATION AGREEMENTS WERE LIKEWISE MADE
EXPRESSLY ENFORCEABLE BY THE STATUTE.  THERE IS NO REASON TO BELIEVE
THAT IN 1936 CONGRESS DISCARDED FOR AN ENTIRE INDUSTRY AN ELEMENT
ESSENTIAL TO A RELIABLE SYSTEM OF SETTLING DISPUTES UNDER EXISTING
CONTRACTS OR THAT IT CONTEMPLATED AWARDS BY ADJUSTMENT BOARDS THE
ENFORCEABILITY OF WHICH DEPENDED ENTIRELY UPON THE DESIRES OF THE
PARTIES OR UPON STATE STATUTES OR COURT DECISIONS.  QUITE THE CONTRARY,
THE ACT, ITS HISTORY, AND ITS PURPOSES LEAD US TO CONCLUDE THAT WHEN
CONGRESS ORDERED THE ESTABLISHMENT OF SYSTEM BOARDS TO HEAR AND DECIDE
AIRLINE CONTRACT DISPUTES, IT "INTENDED THE BOARD TO BE AND TO ACT AS A
PUBLIC AGENCY, NOT AS A PRIVATE GO-BETWEEN; ITS AWARDS TO HAVE LEGAL
EFFECT, NOT MERELY THAT OF PRIVATE ADVICE."  BOWER V. EASTERN AIRLINES,
214 F.2D 623, 626 (C.A. 3D CIR.); WASHINGTON TERM.  CO. V. BOSWELL, 75
U.S. APP. D.C. 1, 10, 124 F.2D 235, 244. 

                  III. 

THE CONTRACT OF THE PARTIES HERE WAS EXECUTED UNDER SEC. 204 AND
DECLARES A SYSTEM BOARD AWARD TO BE FINAL, BINDING, AND CONCLUSIVE. 
THE CLAIM STATED IN THE COMPLAINT IS BASED UPON THE AWARD AND DEMANDS
THAT IT BE ENFORCED.  WHETHER CENTRAL MUST COMPLY WITH THE AWARD OR
WHETHER, INSTEAD, IT IS IMPEACHABLE, ARE QUESTIONS CONTROLLED BY
FEDERAL LAW AND ARE TO BE ANSWERED WITH DUE REGARD FOR THE STATUTORY
SCHEME AND PURPOSE.  TO THE EXTENT THAT THE CONTRACT IMPOSES A DUTY
CONSISTENT WITH THE ACT TO COMPLY WITH THE AWARDS, THAT DUTY IS A
FEDERAL REQUIREMENT.  IF CENTRAL MUST COMPLY, IT IS BECAUSE FEDERAL LAW
REQUIRES ITS COMPLIANCE. 

IN THE CIRCUMSTANCES WE HAVE HERE, WE ARE NOT DEALING WITH A SUIT
INVOLVING AN ASPECT OF FEDERAL LAW WHICH IS ONLY COLLATERAL OR REMOTE
OR A CASE WHERE STATE AND FEDERAL LAWS ARE SO BLENDED AS TO PRESENT A
SERIOUS QUESTION OF THE SCOPE OF THE ARISING-UNDER PROVISION OF SEC.
1331 OR SEC. 1337.  SEE SMITH V. KANSAS CITY TITLE & TRUST CO., 255
U.S. 180; GULLY V. FIRST NAT. BANK, 299 U.S. 109; SKELLY OIL CO. V.
PHILLIPS PETROLEUM CO., 339 U.S. 667; ROMERO V. INTERNATIONAL TERM. 
CO., 358 U.S. 354, 393, N. 4 (DISSENTING AND CONCURRING OPINION).  IN
OUR VIEW THE COMPLAINT IN THIS CASE, FOR JURISDICTIONAL PURPOSES,
PRESENTED A SUBSTANTIAL CLAIM HAVING ITS SOURCE IN AND ARISING UNDER
THE RAILWAY LABOR ACT AND THE DISTRICT COURT THEREFORE HAS JURISDICTION
UNDER 28 U.S.C. SEC.  1331 IF THE JURISDICTIONAL AMOUNT IS SATISFIED
AND IN ANY CASE UNDER SEC. 1337.  ROMERO V. INTERNATIONAL TERM.  CO.,
358 U.S. 354; MONTANA-DAKOTA CO. V. NORTHWESTERN P.S. CO., 341 U.S.
246, 249; AMERICAN WELL WORKS CO. V. LAYNE & BOWLER CO., 241 U.S. 257,
260.  (FN19)  REVERSED AND REMANDED. 

FN1  28 U.S.C. SEC. 1331: 

"(A)  THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL
CIVIL ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR
VALUE OF $10,000 EXCLUSIVE OF INTEREST AND COSTS, AND ARISES UNDER THE
CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES. 

"(B)  EXCEPT WHEN EXPRESS PROVISION THEREFOR IS OTHERWISE MADE IN A
STATUTE OF THE UNITED STATES, WHERE THE PLAINTIFF IS FINALLY ADJUDGED
TO BE ENTITLED TO RECOVER LESS THAN THE SUM OR VALUE OF $10,000,
COMPUTED WITHOUT REGARD TO ANY SETOFF OR COUNTERCLAIM TO WHICH THE
DEFENDANT MAY BE ADJUDGED TO BE ENTITLED, AND EXCLUSIVE OF INTERESTS
AND COSTS, THE DISTRICT COURT MAY DENY COSTS TO THE PLAINTIFF AND, IN
ADDITION, MAY IMPOSE COSTS ON THE PLAINTIFF." 

FN2  28 U.S.C. SEC. 1337: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION OR PROCEEDING ARISING UNDER ANY ACT OF CONGRESS REGULATING
COMMERCE OR PROTECTING TRADE AND COMMERCE AGAINST RESTRAINTS AND
MONOPOLIES." 

PETITIONERS' COMPLAINT MENTIONED ONLY SEC. 1331, BUT RELIANCE HAS
SUBSEQUENTLY BEEN PLACED ON SEC. 1337 AS WELL, SINCE THERE IS A DISPUTE
CONCERNING THE EXISTENCE OF THE JURISDICTIONAL AMOUNT REQUIRED BY SEC.
1331.  THIS IS PERMISSIBLE.  AMERICAN FEDERATION OF LABOR V. WATSON,
327 U.S. 582, 589-591. 

FN3  SEE HEARINGS ON S. 2496 BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON INTERSTATE COMMERCE, 74TH CONG., 1ST SESS. 26-27. 

FN4  ID., AT 1-2. 

FN5  ID., AT 11. 

FN6  SEE GENERALLY VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S.
515; TEXAS & N.O.R.  CO. V. BROTHERHOOD OF RAILWAY CLERKS, 281 U.S.
548; GARRISON, THE NATIONAL RAILROAD ADJUSTMENT BOARD, 46 YALE L.J.
567; NOTE, 72 YALE L.J. 803. 

FN7  THE COURT HAS MANY TIMES REVIEWED THE HISTORY OF THE RAILWAY
LABOR LAWS.  FOR EXAMPLE, SEE ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S.
711; SLOCUM V. DELAWARE, L.&W.R.  CO., 339 U.S. 239; BROTHERHOOD OF
TRAINMEN V. CHICAGO R.&I.R. CO., 353 U.S. 30; UNION PAC. R. CO. V.
PRICE, 360 U.S. 601; MACHINISTS V. STREET, 367 U.S. 740. 

FN8  41 STAT. 469, 474. 

FN9  PENNSYLVANIA FEDERATION V. PENNSYLVANIA R. CO., 267 U.S. 203. 
SEE PENNSYLVANIA R. CO. V. LABOR BOARD, 261 U.S. 72. 

FN10  SEE BROTHERHOOD OF TRAINMEN V. CHICAGO R.&I.R. CO., 353 U.S.
30. 

FN11  44 STAT. 578. 

FN12  SEC. 3 FIRST (E), ID., AT 579. 

FN13  THE ABSENCE OF A SPECIFIC STATUTE CONFERRING JURISDICTION, IN
ADDITION TO SECS. 1331 AND 1337, WAS OF NO MOMENT IN SUCH CASES.  SEE
TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE ENGINEMEN, 323 U.S. 210, 213;
LEEDOM V. KYNE, 358 U.S. 184, 189-190.  THESE CASES, AND THE ONE AT
BAR, ARE UNLIKE SUCH CASES AS SWITCHMEN'S UNION V. NATIONAL MEDIATION
BOARD, 320 U.S. 297, AND GENERAL COMMITTEE V. M.-K.-T. R. CO., 320 U.S.
323, WHERE CONGRESS INTENDED NO JUDICIAL REVIEW AND ITS DENIAL IMPAIRED
NO FEDERAL RIGHTS. 

FN14  SEE ALSO SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320
U.S. 297; GENERAL COMMITTEE V. M.-K.-T. R. CO., 320 U.S. 323; GENERAL
COMMITTEE V. SOUTHERN PAC. CO., 320 U.S. 338; BROTHERHOOD OF CLERKS V.
UNITED TRANSPORT SERVICE EMPLOYEES, 320 U.S. 715, 816; TEXAS & N.O.R.
CO. V. BROTHERHOOD OF RAILWAY CLERKS, 281 U.S. 548; VIRGINIAN R. CO. V.
SYSTEM FEDERATION, 300 U.S. 515. 

FN15  AS THE DISSENTING JUDGE BELOW REMARKED, 295 F.2D, AT 221-222: 

"  ...  CONGRESS IN 1936 COULD NOT  ...  HAVE THOUGHT THAT STABILITY
AND CONTINUITY TO INTERSTATE AIR COMMERCE WOULD COME FROM THE
UNDULATING POLICIES  ...  OF THE LEGISLATURES AND COURTS (OR BOTH) OF
48 STATES IN THE ENFORCEMENT OF ANYTHING THOUGHT SO ESSENTIAL TO
INDUSTRIAL PEACE AS THIS SYSTEM OF GOVERNMENTALLY COMPELLED
ARBITRATION."  THE DISSENTING OPINION ALSO POINTS OUT THE DIFFICULT
CONFLICT OF LAWS PROBLEMS WHICH APPLYING STATE LAW WOULD RAISE, 295
F.2D, AT 223: 

"NOT THE LEAST OF THE ABSURDITIES IS THAT AN AIRPLANE FLIES FROM
STATE TO STATE.  WHAT STATE IS TO BE THE FORUM?  WHAT STATE WAS THE
PARENT OF THIS CREATURE - THE CONSENSUAL CONTRACT CONTAINING THE
AGREEMENT TO ARBITRATE?  MAY ANY OR ALL OF THE STATES BENEATH THE ROUTE
OR ROUTES TRAVELED BY THE AIRLINE BE RESORTED TO?  IS THE CONTINUITY OF
ESSENTIAL AIR TRAFFIC TO BE AT THE PLAINTIFF'S CHOICE OF FORUM?  WHAT
IS TO HAPPEN WHEN SEVERAL PLAINTIFFS BRING SEVERAL SUITS IN SEVERAL
STATES?  IS EFFECTIVE FEDERAL CONTROL OF AN OPERATIONAL ACTIVITY DEEMED
SO ESSENTIAL TO NATIONAL WELFARE TO BE PRECARIOUSLY DEPENDENT UPON THE
ACCIDENT OF DIVERSITY OF CITIZENSHIP?" 

FN16  TO BE SURE, DIFFERENT AIRLINES MAY USE DIFFERENT CONTRACTS, AND
ANY ONE MAY HAVE DIFFERENT AGREEMENTS FOR DIFFERENT CRAFTS, BUT SUCH
LACK OF UNIFORMITY REPRESENTS A MINIMAL BURDEN ON COMMERCE.  THE LACK
OF UNIFORMITY CREATED BY DIVIDING EVERYTHING BY 50 (OR HOWEVER MANY
STATES THE SYSTEM SPANS) WOULD MULTIPLY THE BURDEN BY A SUBSTANTIAL
FACTOR AND AGGRAVATE THE PROBLEM TO AN INTOLERABLE DEGREE. 

FN17  THE SHULZ CASE FOLLOWED A LINE OF AUTHORITY INVOLVING SUITS ON
BONDS GIVEN BY FEDERAL OFFICERS TO ENSURE THEIR FAITHFUL PERFORMANCE OF
THEIR FEDERAL DUTIES, IN WHICH THE COURT HAD HELD THAT THERE WAS
FEDERAL JURISDICTION FOR SUITS BY AN AGGRIEVED PARTY SEEKING TO COLLECT
FROM THE SURETY.  BOCK V. PERKINS, 139 U.S. 628 (SUIT FOR TORT OF U.S.
MARSHAL COMMITTED IN PERFORMANCE OF DUTY); SONNENTHEIL V. MOERLEIN CO.,
172 U.S. 401 (SAME); SEE FEIBELMAN V. PACKARD, 109 U.S. 421 (SAME,
REMOVAL CASE); HOWARD V. UNITED STATES, 184 U.S. 676 (SUIT AGAINST
SURETY OF CLERK OF COURT BROUGHT EX REL. UNITED STATES TO RECOVER FOR
CLERKS'S APPROPRIATION OF MONEY PAID INTO FEDERAL COURT).  THE SAME
RULE THAT FEDERAL LAW APPLIES TO FEDERAL CONTRACTS HAS BEEN APPLIED, IN
A CHOICE OF SUBSTANTIVE LAW RATHER THAN JURISDICTIONAL CONTEXT, IN
CASES INVOLVING RIGHTS AND OBLIGATIONS ARISING ON COMMERCIAL PAPER
ISSUED BY THE UNITED STATES.  SEE, E.G., METROPOLITAN BANK V. UNITED
STATES, 323 U.S. 454; CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S.
363, 366.  SEE ALSO ROYAL INDEM.  CO. V. UNITED STATES, 313 U.S. 289,
296 (GENERAL LAW RATHER THAN LOCAL LAW GOVERNS WHETHER GOVERNMENT MAY
COLLECT INTEREST ON SURETY BOND GIVEN TO SECURE COLLECTION OF TAXES);
AMERICAN PIPE & STEEL CORP. V. FIRESTONE CO., 292 F.2D 640, 643-644
(C.A. 9TH CIR.)(CONSTRUCTION OF SUBCONTRACT GOVERNED BY FEDERAL LAW IN
SUIT BETWEEN PRIME AND SUB ON GOVERNMENT CONTRACT); GIRARD TRUST CO. V.
UNITED STATES, 149 F.2D 872 (C.A. 3D CIR.)(FEDERAL LAW GOVERNS RIGHTS
OF PARTIES IN LEASE WHERE GOVERNMENT IS LESSEE, TUCKER ACT SUIT);
WOODWARD V. UNITED STATES, 167 F.2D 774 (C.A. 8TH CIR.)(FEDERAL LAW
GOVERNS INTERPRETATION OF NATIONAL SERVICE LIFE INSURANCE POLICY, SUIT
AGAINST GOVERNMENT ON POLICY).  ALTHOUGH THESE DECISIONS DID NOT
INVOLVE FEDERAL JURISDICTION AS SUCH, SINCE JURISDICTION WAS CONFERRED
BY SPECIFIC STATUTES AND RECOURSE TO THE "ARISING UNDER" STATUTE WAS
UNNECESSARY, THEY ARE SUGGESTIVE SINCE THEY HOLD FEDERAL LAW
DETERMINATIVE OF THE MERITS OF THE CLAIM.  ALSO HIGHLY SUGGESTIVE, FOR
THE SAME REASON, IS THIS COURT'S LANGUAGE IN SOLA ELEC.  CO. V.
JEFFERSON ELEC.  CO., 317 U.S. 173, 176, A CASE INVOLVING BOTH FEDERAL
PATENT-ANTITRUST POLICIES AND CONFLICTING STATE CONTRACT LAW POLICIES
OF ESTOPPEL: 

"THE DOCTRINE OF THAT CASE (ERIE) IS INAPPLICABLE TO THOSE AREAS OF
JUDICIAL DECISION WITHIN WHICH THE POLICY OF THE LAW IS SO DOMINATED BY
THE SWEEP OF FEDERAL STATUTES THAT LEGAL RELATIONS WHICH THEY AFFECT
MUST BE DEEMED GOVERNED BY FEDERAL LAW HAVING ITS SOURCE IN THOSE
STATUTES, RATHER THAN BY LOCAL LAW." 

FN18  THUS IN CASES INVOLVING ADJUSTMENT BOARD PROCEDURES OR AWARDS,
THE FEDERAL COURTS HAVE APPLIED FEDERAL SUBSTANTIVE LAW TO THE
DETERMINATION OF THE VALIDITY OF THE AWARD AND THE PROCEDURES FOR
SECURING IT, IRRESPECTIVE OF WHETHER THE CASE WAS BROUGHT INTO THE
FEDERAL COURT SYSTEM ON THE BASIS OF DIVERSITY.  SEE INTERNATIONAL
ASSN. OF MACHINISTS V. NORTHWEST AIRLINES, 304 F.2D 206 (C.A. 8TH
CIR.); FLIGHT ENGINEERS V. AMERICAN AIRLINES, 303 F.2D 5 (C.A. 5TH
CIR.); WOOLLEY V. EASTERN AIR LINES, 250 F.2D 86, 90-91 (C.A. 5TH
CIR.); SIGFRED V. PAN AMERICAN WORLD AIRWAYS, 230 F.2D 13 (C.A. 5TH
CIR.); BOWER V. EASTERN AIRLINES, 214 F.2D 623, 625-627 (C.A. 3D CIR.);
PAN AMERICAN WORLD AIRWAYS, INC., V. DIVISION OF LABOR LAW ENFORCEMENT,
203 F. SUPP. 324 (N.D. CAL.); EDWARDS V. CAPITAL AIRLINES, 84 U.S. APP.
D.C. 346, 176 F.2D 755; CRUSEN V. UNITED AIR LINES, 141 F. SUPP. 347
(D. COLO.), AFF'D, PER CURIAM, 239 F.2D 863 (C.A. 10TH CIR.); FARRIS V.
ALASKA AIRLINES, 113 F. SUPP. 907 (W.D. WASH.); AMERICAN AIRLINES V.
AIR LINE PILOTS ASSN., 91 F. SUPP. 629 (E.D.N.Y.); UNITED AUTOMOBILE
WORKERS V. DELTA AIR LINES, 83 F. SUPP. 63 (N.D. GA.).    FN19  SEE
ALSO BROTHERHOOD OF TRAINMEN V. CHICAGO R.&I.R. CO., 353 U.S. 30,
BROUGHT UNDER 28 U.S.C. SECS. 1331, 1337.  (R. 4, 47.) 
..END :


















DIXILYN DRILLING CORP. V. CRESCENT TOWING & SALVAGE CO. 372 U.S. 697 


NO. 297.  ARGUED MARCH 21, 1963.  - DECIDED APRIL 15, 1963.  - 303 F.2D
237, REVERSED. 


THE HOLDING OF BISSO V. INLAND WATERWAYS CORP., 349 U.S. 85, AND
BOSTON METALS CO. V. THE WINDING GULF, 349 U.S. 122, THAT A TOWBOAT
OWNER MAY NOT VALIDLY CONTRACT AGAINST LIABILITY FOR ITS OWN NEGLIGENCE
IS REAFFIRMED.  PP. 697-698. 

DIXILYN DRILLING CORP. V. CRESCENT TOWING & SALVAGE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

RESPONDENT CRESCENT TOWING COMPANY CONTRACTED WITH PETITIONER DIXILYN
DRILLING CORPORATION TO TOW DIXILYN'S BARGE JULIE ANN DOWN THE
MISSISSIPPI RIVER.  WHILE BEING TOWED, THE BARGE COLLIDED WITH A
BRIDGE, AND THE BRIDGE OWNERS FILED A LIBEL IN THE UNITED STATES
DISTRICT COURT CLAIMING DAMAGES FROM THE TOWER AND THE BARGE OWNER. 
THESE TWO JOINTLY PAID THE CLAIM BUT CONTINUED TO LITIGATE, AS BETWEEN
THEMSELVES, THE QUESTION OF WHICH WAS LIABLE.  THE DISTRICT JUDGE AFTER
A FULL TRIAL FOUND THAT THE COLLISION AND THE RESULTING DAMAGE WERE DUE
SOLELY TO THE NEGLIGENCE OF THE TOWER.  HE ALSO REJECTED THE TOWER'S
ARGUMENT THAT REGARDLESS OF WHICH WAS NEGLIGENT THE BARGE OWNER SHOULD
PAY THE DAMAGES BECAUSE IT HAD CONTRACTED TO ASSUME LIABILITY FOR ALL
DAMAGES ARISING OUT OF THE TOWAGE INCLUDING "ANY DAMAGE CLAIMS URGED BY
THIRD PARTIES."  THE JUDGE HELD THAT THE BARGE OWNER HAD NOT AGREED TO
ASSUME LIABILITY FOR DAMAGES CAUSED BY THE TOWER'S OWN NEGLIGENCE.  ON
REVIEW THE COURT OF APPEALS HELD THAT IT NEED NOT DECIDE THE "EXTREMELY
DIFFICULT" FACTUAL QUESTION OF WHO WAS NEGLIGENT BECAUSE, IN THE
COURT'S VIEW, THE BARGE OWNER HAD AGREED IN THE TOWAGE CONTRACT TO
ASSUME LIABILITY FOR ALL LOSSES ARISING OUT OF THE TOWAGE, INCLUDING
THOSE CAUSED BY THE TOWER'S NEGLIGENCE.  HOLDING SUCH A CONTRACT TO BE
VALID, THE COURT OF APPEALS REVERSED THE DISTRICT COURT'S JUDGMENT. 

IN TREATING AS VALID A CONTRACT WHICH EXEMPTS THE TOWER FROM
LIABILITY FOR ITS OWN NEGLIGENCE, THE COURT OF APPEALS' HOLDING IS
SQUARELY IN CONFLICT WITH OUR HOLDING IN BISSO V. INLAND WATERWAYS
CORP., 349 U.S. 85 (1955), AND BOSTON METALS CO. V. THE WINDING GULF,
349 U.S. 122 (1955).  THE COURT OF APPEALS THOUGHT THAT THE PRESENT
CASE WAS DISTINGUISHABLE BECAUSE THE PECULIAR HAZARDS OF TOWAGE AND
OTHER FACTORS BROUGHT IT WITHIN THE AMBIT OF SOUTHWESTERN SUGAR &
MOLASSES CO. V. RIVER TERMINALS CORP., 360 U.S. 411 (1959).  BUT
SOUTHWESTERN SUGAR IS NOT APPLICABLE HERE, FOR IN THAT CASE THE COURT
MERELY PREFERRED TO GIVE THE INTERSTATE COMMERCE COMMISSION AN
OPPORTUNITY TO RULE ON AN EXCULPATORY CLAUSE WHICH WAS PART OF A TARIFF
FILED WITH THE COMMISSION.  WE ADHERE TO THE RULE LAID DOWN IN BISSO
AND WINDING GULF AND HOLD THAT THE COURT OF APPEALS WAS IN ERROR IN
FAILING TO FOLLOW IT.  THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED
TO THAT COURT TO CONSIDER OTHER QUESTIONS.  REVERSED AND REMANDED. 

MR. JUSTICE HARLAN, CONCURRING. 

WHILE I WOULD PREFER TO SEE BISSO RECONSIDERED, BELIEVING, WITH
DEFERENCE, THAT IT WAS WRONGLY DECIDED, I NEVERTHELESS JOIN THE OPINION
OF THE COURT.  CERTAINTY IN THE LAW GOVERNING COMMERICAL TRANSACTIONS
OF THIS KIND IS AN OVERRIDING CONSIDERATION WHICH WOULD NOT BE PROMOTED
BY OPENING THE BISSO RULE TO INDETERMINATE EXCEPTIONS IN INSTANCES
WHERE, UNLIKE SOUTHWESTERN SUGAR, NO FUNCTIONS OF A REGULATORY AGENCY
ARE INVOLVED. 
..END :










BASHAM V. PENNSYLVANIA RAILROAD CO. 372 U.S. 699 


NO. 512.  ARGUED MARCH 19, 1963.  - DECIDED APRIL 15, 1963.  - 11 N.Y.2D
991, 183 N.E.2D 704, REVERSED. 


IN THIS SUIT A STATE COURT UNDER THE FEDERAL EMPLOYER'S LIABILITY ACT
BY A CAR REPAIRMAN TO RECOVER DAMAGES FOR PERSONAL INJURIES ALLEGEDLY
SUSTAINED AS A RESULT OF THE RAILROAD'S NEGLIGENCE, THERE WAS EVIDENCE
SUFFICIENT TO SUPPORT THE JURY'S VERDICT FOR THE PLAINTIFF, AND IT WAS
ERROR FOR THE TRIAL COURT TO SET ASIDE THE JURY'S VERDICT.  PP. 699
670. 

BASHAM V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

PETITIONER, A CAR REPAIRMAN EMPLOYED BY RESPONDENT RAILROAD, BROUGHT
THIS SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS
AMENDED, 45 U.S.C. SEC. 51 ET SEQ., IN THE SUPREME COURT OF THE STATE
OF NEW YORK TO RECOVER DAMAGES FOR PERSONAL INJURIES SUSTAINED AS A
RESULT OF RESPONDENT'S ALLEGED NEGLIGENCE.  A JURY VERDICT FOR
PETITIONER WAS SET ASIDE BY THE TRIAL JUDGE ON THE GROUND THAT
NEGLIGENCE WAS NOT ESTABLISHED.  THE APPELLATE DIVISION AFFIRMED
WITHOUT OPINION, ONE JUDGE DISSENTING, 10 APP. DIV. 2D 948, 201
N.Y.S.2D 362, AND THE COURT OF APPEALS AFFIRMED, ALSO WITHOUT OPINION,
11 N.Y.2D 991, 183 N.E.2D 704.  THIS COURT GRANTED CERTIORARI, 371 U.S.
860, TO CONSIDER THE PROPRIETY OF THE TRIAL JUDGE'S ACTION. 

AT THE TIME OF THE ACCIDENT, PETITIONER WAS WORKING ON A HOIST
PLATFORM LOCATED IN A WORK PIT UNDERNEATH A RAILROAD CAR ON WHICH NEW
WHEELS WERE BEING INSTALLED.  HE TESTIFIED THAT AS HE WAS LIFTING A 100
POUND WHEEL SPRING INTO POSITION THE PLATFORM MOVED, CAUSING HIM TO
DROP THE SPRING ON HIS LEFT INDEX FINGER WHICH, AS A CONSEQUENCE, WAS
AMPUTATED.  PETITIONER'S VERSION OF THE ACCIDENT WAS CONFIRMED BY A CO
WORKER WHO TESTIFIED THAT HE SAW THE PLATFORM MOVE AT THE TIME OF THE
INJURY.  PETITIONER OFFERED ADDITIONAL EVIDENCE THAT PRIOR COMPLAINTS
HAD BEEN LODGED WITH RESPONDENT ABOUT PLATFORM MOVEMENTS IN SIMILAR AND
ADJACENT REPAIR PITS IN WHICH FELLOW EMPLOYEES WERE WORKING AND THAT
SAFETY EQUIPMENT PREVENTING PLATFORM MOVEMENTS HAD BEEN INSTALLED IN
ONE OF THE ADJACENT PITS BUT NOT IN THE PIT WHERE THE ACCIDENT
OCCURRED. 

RESPONDENT INTRODUCED EVIDENCE THAT IT WAS PHYSICALLY IMPOSSIBLE FOR
THE ACCIDENT TO HAVE HAPPENED IN THE MANNER CLAIMED BY PETITIONER, THAT
THE PLATFORM WAS VIRTUALLY IMMOVABLE, AND THAT THE EQUIPMENT INSTALLED
IN THE ADJACENT PIT WAS PUT THERE TO ASSURE THAT THE PLATFORM WAS IN
POSITION WHEN THE MEN WENT TO WORK AND HAD NOTHING TO DO WITH THE
MOVEMENT OF THE PLATFORM DURING THE PROCESS OF INSTALLING NEW WHEELS. 

THE CONFLICT IN THE TESTIMONY WAS RESOLVED BY THE JURY'S VERDICT IN
FAVOR OF THE PETITIONER.  SINCE THERE WAS AN EVIDENTIARY BASIS FOR THAT
VERDICT, IT WAS ERROR FOR THE NEW YORK TRIAL AND APPELLATE COURTS TO
REEVALUATE THE CONFLICTING EVIDENCE AND MANDATE A RESULT OPPOSITE FROM
THAT REACHED BY THE JURY. 

IN LAVENDER V. KURN, 327 U.S. 645, ALSO AN F.E.L.A. ACTION, THE
EMPLOYER ARGUED, AS DOES RESPONDENT HERE, THAT ITS EVIDENCE TENDED TO
SHOW IT WAS PHYSICALLY IMPOSSIBLE FOR ITS EQUIPMENT TO HAVE INJURED THE
EMPLOYEE.  THERE, AS IN THIS CASE, THE SUING EMPLOYEE OFFERED EVIDENCE
THAT THE INJURY WAS THE RESULT OF EQUIPMENT FAILURE.  IN REVERSING A
STATE COURT JUDGMENT SETTING ASIDE A JURY VERDICT FOR THE EMPLOYEE,
THIS COURT SAID, IN LANGUAGE FULLY APPOSITE HERE:  "ONLY WHEN THERE IS
A COMPLETE ABSENCE OF PROBATIVE FACTS TO SUPPORT THE CONCLUSION REACHED
BY THE JURY DOES A REVERSIBLE ERROR APPEAR.  BUT WHERE, AS HERE, THERE
IS AN EVIDENTIARY BASIS FOR THE JURY'S VERDICT, THE JURY IS FREE TO
DISCARD OR DISBELIEVE WHATEVER FACTS ARE INCONSISTENT WITH ITS
CONCLUSION.  AND THE APPELLATE COURT'S FUNCTION IS EXHAUSTED WHEN THAT
EVIDENTIARY BASIS BECOMES APPARENT, IT BEING IMMATERIAL THAT THE COURT
MIGHT DRAW A CONTRARY INFERENCE OR FEEL THAT ANOTHER CONCLUSION IS MORE
REASONABLE."  327 U.S., AT 653. 

SINCE, IN THIS CASE, PETITIONER'S EVIDENCE, THOUGH DISPUTED,
CONSTITUTED PROBATIVE FACTS SUFFICIENT TO SUPPORT THE FINDING OF
NEGLIGENCE, THE STATE COURTS IMPROPERLY INVADED THE FUNCTION AND
PROVINCE OF THE JURY IN SETTING THE VERDICT ASIDE.  ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500. 

THE JUDGMENT OF THE NEW YORK COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

MR. JUSTICE HARLAN, DISSENTING. 

THIS IS A RUN-OF-THE-MILL NEGLIGENCE CASE, PRESENTING NO NEW QUESTION
OF LAW OR DEPARTURE FROM ESTABLISHED LEGAL PRINCIPLES.  THE ONLY
QUESTION IS WHETHER THERE WAS ENOUGH EVIDENCE TO TAKE THE CASE TO THE
JURY. 

A TOTAL OF 12 NEW YORK JUDGES - ONE AT NISI PRIUS, FOUR ON THE
APPELLATE DIVISION (A FIFTH DISSENTING), AND SEVEN ON THE COURT OF
APPEALS - HAVE HELD THAT THE EVIDENCE WAS NOT SUFFICIENT TO WARRANT
SUBMISSION OF THE CASE TO THE JURY. 

TO BRING SUCH A CASE HERE FOR FURTHER REVIEW BY NINE MORE JUSTICES
SEEMS TO ME A MOST FUTILE EXPENDITURE OF JUDICIAL TIME.  HAVING
REFLECTED ON THE ORAL ARGUMENT, BRIEFS, AND RECORD, I CONCLUDE THAT THE
ONLY PREMISE ON WHICH THIS REVERSAL CAN BE JUSTIFIED IS THAT ANYTHING A
JURY SAYS GOES. 

I WOULD AFFIRM THE JUDGMENT BELOW. 
..END :















JOHNSON V. MISSISSIPPI 372 U.S. 702 


NO. 853.  DECIDED APRIL 15, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  - MISS.  - , 145 SO. 2D 156. 


JOHNSON V. MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















LESTER C. NEWTON TRUCKING CO. V. UNITED STATES 372 U.S. 702 


NO. 768.  DECIDED APRIL 15, 1963.  - 209 F. SUPP. 600, AFFIRMED. 


LESTER C. NEWTON TRUCKING CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















KARPEL V. CALIFORNIA 372 U.S. 703 


NO. 809.  DECIDED APRIL 15, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


KARPEL V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA,
LOS ANGELES COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















JOHNSON V. CALIFORNIA 372 U.S. 703 


NO. 781.  DECIDED APRIL 15, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  203 CAL. APP. 2D 712, 22 CAL. RPTR.  149. 


JOHNSON ET UX. V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















DANIELS V. UNITED STATES 372 U.S. 704 


NO. 814.  DECIDED APRIL 15, 1963.  - 210 F. SUPP. 942, AFFIRMED. 


DANIELS V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MONTANA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT & POWER DIST. V. CITY OF
MESA 372 U.S. 704 


NO. 803.  DECIDED APRIL 15, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  92 ARIZ. 91, 373 P.2D
722. 


SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT & POWER DIST. V. CITY OF
MESA. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














JOHNSON V. DOWD 372 U.S. 705 


NO. 1, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  241 IND. 702, 170
N.E.2D 55. 


JOHNSON V. DOWD, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREMME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF LANE V. BROWN,
372 U.S. 477. 
..END :














MEYERKORTH V. NEBRASKA 372 U.S. 705 


NO. 827.  DECIDED APRIL 15, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  173 NEB. 889, 115
N.W.2D 585. 


MEYERKORTH ET AL. V. NEBRASKA ET AL. 

APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BARBER V. VIRGINIA 372 U.S. 706 


NO. 134, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


BARBER V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF GRIFFIN V.
ILLINOIS, 351 U.S. 12, AND DOUGLAS V. CALIFORNIA, 372 U.S. 353. 
..END :














CRAIG V. INDIANA 372 U.S. 706 


NO. 17, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


CRAIG V. INDIANA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF LANE V. BROWN,
372 U.S. 477. 
..END :















HOLLOMAN V. VIRGINIA 372 U.S. 707 


NO. 444, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


HOLLOMAN V. VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR
WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE CASE
IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 
..END :














THOMPSON V. INDIANA 372 U.S. 707 


NO. 4, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


THOMPSON V. INDIANA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF LANE V. BROWN,
372 U.S. 477. 
..END :















PUNTARI V. PENNSYLVANIA 372 U.S. 708 


NO. 718, MISC.  DECIDED APRIL 15, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


PUNTARI V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















LUCKMAN V. DUNBAR 372 U.S. 708 


NO. 63, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


LUCKMAN V. DUNBAR, CORRECTIONS DIRECTOR, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S., AT 358,
360. 
..END :










FUQUA V. MISSISSIPPI 372 U.S. 709 


NO. 854.  DECIDED APRIL 15, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  - MISS.  - , 145 SO. 2D 152. 


FUQUA V. MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















COLLINS V. CALIFORNIA 372 U.S. 709 


NO. 599, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  203 CAL APP. 2D 611, 21
CAL. RPTR.  783. 


COLLINS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S., AT 358,
360. 
..END :









HOLMES V. CALIFORNIA 372 U.S. 710 


NO. 70, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  197 CAL. APP. 2D 699,
17 CAL. RPTR.  599. 


HOLMES V. CALIFORNIA ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S., AT 358,
360. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






SYMONS V. CALIFORNIA 372 U.S. 711 


NO. 301, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  201 CAL. APP. 2D 825,
20 CAL. RPTR.  400. 


SYMONS V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S., AT 358,
360. 
..END :









TUCKER V. INDIANA 372 U.S. 712 


NO. 360, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


TUCKER V. INDIANA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF LANE V. BROWN,
372 U.S. 477. 
..END :















WILLIAMS V. CALIFORNIA 372 U.S. 713 


NO. 534, MISC.  DECIDED APRIL 15, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


WILLIAMS V. CALIFORNIA ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF DOUGLAS V.
CALIFORNIA, 372 U.S. 353. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR OPINIONS IN DOUGLAS V. CALIFORNIA, 372 U.S., AT 358,
360. 
..END :










WEYERHAEUSER STEAMSHIP CO. V. UNITED STATES 372 U.S. 597 


NO. 65.  ARGUED FEBRUARY 18, 1963.  - DECIDED APRIL 1, 1963.  - 294 F.2D
179, REVERSED. 


PETITIONER SUED THE UNITED STATES UNDER THE PUBLIC VESSELS ACT TO
RECOVER DAMAGES RESULTING FROM A COLLISION BETWEEN ITS SHIP AND A
GOVERNMENT DREDGE.  THE UNITED STATES FILED A CROSS-LIBEL, AND THE
DISTRICT COURT HELD THAT THE COLLISION HAD OCCURRED THROUGH THE MUTUAL
FAULT OF BOTH VESSELS AND THAT, UNDER THE SETTLED ADMIRALTY RULE, EACH
PARTY WAS ENTITLED TO RECOVER FROM THE OTHER ONE-HALF OF ITS PROVABLE
DAMAGES AND COURT COSTS.  A GOVERNMENT EMPLOYEE ABOARD THE DREDGE HAD
SUSTAINED PERSONAL INJURIES IN THE COLLISION, FOR WHICH HE RECEIVED
COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT.  HE SUED
PETITIONER FOR DAMAGES, OBTAINED A SETTLEMENT OF $16,000 AND REPAID TO
THE UNITED STATES THE AMOUNT HE HAD RECEIVED UNDER THE COMPENSATION
ACT.  HELD:  SECTION 7(B) OF THE FEDERAL EMPLOYEE'S COMPENSATION ACT,
WHICH PROVIDES THAT THE LIABILITY THEREUNDER "SHALL BE EXCLUSIVE, AND
IN PLACE, OF ALL OTHER LIABILITY OF THE UNITED STATES" TO THE EMPLOYEE
AND HIS REPRESENTATIVES AND DEPENDENTS, DOES NOT LIMIT THE ADMIRALTY
RULE OF DIVIDED DAMAGES IN MUTUAL FAULT COLLISIONS, AND THE AMOUNT PAID
BY PETITIONER TO THE GOVERNMENT EMPLOYEE SHOULD BE INCLUDED IN
COMPUTING THE AMOUNT OF PETITIONER'S RECOVERY FROM THE GOVERNMENT.  PP.
597-604. 

WEYERHAEUSER STEAMSHIP CO. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN SEPTEMBER OF 1955 THE UNITED STATES ARMY DREDGE PACIFIC AND THE
PETITIONER'S VESSEL F.E. WEYERHAEUSER WERE IN A COLLISION OFF THE
OREGON COAST.  TO RECOVER FOR ITS RESULTANT DAMAGES THE PETITIONER
BROUGHT THIS ACTION AGAINST THE UNITED STATES UNDER THE PUBLIC VESSELS
ACT.  (FN1)  A CROSS-LIBEL WAS FILED, AND THE DISTRICT COURT AFTER A
HEARING FOUND THAT THE COLLISION HAD OCCURRED THROUGH THE MUTUAL FAULT
OF BOTH VESSELS.  APPLYING THE SETTLED ADMIRALTY RULE OF DIVIDED
DAMAGES, THE COURT HELD THAT EACH PARTY WAS ENTITLED TO RECOVER FROM
THE OTHER ONE-HALF OF ITS PROVABLE DAMAGES AND COURT COSTS.  174 F.
SUPP.  663, SUPPLEMENTED AT 178 F. SUPP. 496. 

A UNITED STATES CIVIL SERVICE EMPLOYEE ABOARD THE PACIFIC, REYNOLD E.
OSTROM, HAD SUSTAINED PERSONAL INJURIES IN THE COLLISION.  HE HAD
RECEIVED COMPENSATION FOR THESE INJURIES UNDER THE FEDERAL EMPLOYEES'
COMPENSATION ACT, (FN2) AND HAD THEN FILED A SUIT AGAINST THE
PETITIONER TO RECOVER DAMAGES.  THAT LAWSUIT WAS SUBSEQUENTLY SETTLED
BY THE PAYMENT TO OSTROM OF $16,000 BY THE PETITIONER, AND OSTROM THEN
REPAID TO THE UNITED STATES THE AMOUNT WHICH HAD PREVIOUSLY BEEN
AWARDED HIM AS STATUTORY COMPENSATION, AS REQUIRED BY THE COMPENSATION
ACT.  (FN3) 

THE UNITED STATES OBJECTED TO THE INCLUSION, AS PART OF THE
PETITIONER'S DAMAGES FROM THE COLLISION, OF THE $16,000 WHICH THE
PETITIONER HAD PAID TO OSTROM.  THE GOVERNMENT STIPULATED THAT THE
AMOUNT WAS A REASONABLE SETTLEMENT OF OSTROM'S CLAIM, AND AGREED THAT
SUCH A PAYMENT WOULD ORDINARILY BE INCLUDIBLE AS A PROPER ITEM OF THE
DAMAGES TO BE DIVIDED PURSUANT TO THE ACCEPTED ADMIRALTY FORMULA.  THE
GOVERNMENT TOOK THE POSITION, HOWEVER, THAT WITH RESPECT TO THE AMOUNT
PAID OSTROM THE ESTABLISHED ADMIRALTY RULE HAS BEEN QUALIFIED BY SEC.
7(B) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, WHICH PROVIDES THAT
THE LIABILITY OF THE UNITED STATES UNDER THE ACT FOR: 

"INJURY OR DEATH OF AN EMPLOYEE SHALL BE EXCLUSIVE, AND IN PLACE, OF
ALL OTHER LIABILITY OF THE UNITED STATES OR SUCH INSTRUMENTALITY TO THE
EMPLOYEE, HIS LEGAL REPRESENTATIVE, SPOUSE, DEPENDENTS, NEXT OF KIN,
AND ANYONE OTHERWISE ENTITLED TO RECOVER DAMAGES FROM THE UNITED STATES
...  ON ACCOUNT OF SUCH INJURY OR DEATH, IN ANY DIRECT JUDICIAL
PROCEEDINGS IN A CIVIL ACTION OR IN ADMIRALTY, OR BY PROCEEDINGS,
WHETHER ADMINISTRATIVE OR JUDICIAL, UNDER ANY OTHER WORKMEN'S
COMPENSATION LAW OR UNDER ANY FEDERAL TORT LIABILITY STATUTE  ...  ." 
(FN4) 

THE DISTRICT COURT REJECTED THE GOVERNMENT'S ARGUMENT AND ENTERED A
DECREE WHICH RECOGNIZED THE AMOUNT PAID BY THE PETITIONER TO OSTROM AS
PART OF THE PETITIONER'S PROVABLE DAMAGES FROM THE COLLISION.  THE
COURT OF APPEALS REVERSED, REMANDING THE CASE TO THE DISTRICT COURT
WITH DIRECTIONS TO RECOMPUTE THE DAMAGES AFTER EXCLUDING THE OSTROM
SETTLEMENT, HOLDING THAT THE EXCLUSIVE LIABILITY PROVISION OF SEC. 7(B)
OF THE COMPENSATION ACT PRECLUDED ANY LIABILITY OF THE UNITED STATES ON
ACCOUNT OF THE PETITIONER'S PAYMENT FOR OSTROM'S PERSONAL INJURIES. 
294 F.2D 179. 

WE GRANTED CERTIORARI TO CONSIDER THE SINGLE QUESTION WHETHER THE
HISTORIC ADMIRALTY RULE OF DIVIDED DAMAGES IN MUTUAL FAULT COLLISIONS
HAS BEEN QUALIFIED, AS THE COURT OF APPEALS HELD, BY THE EXCLUSIVE
LIABILITY PROVISION OF THE FEDERAL COMPENSATION STATUTE.  369 U.S.
810.  FOR THE REASONS STATES IN THIS OPINION, WE HOLD THAT THIS
PROVISION OF THE COMPENSATION STATUTE DOES NOT SO LIMIT THE ADMIRALTY
RULE, AND WE ACCORDINGLY REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

AS THIS COURT HAS POINTED OUT, THE PUBLIC VESSELS ACT "WAS INTENDED
TO IMPOSE ON THE UNITED STATES THE SAME LIABILITY (APART FROM SEIZURE
OR ARREST UNDER A LIBEL IN REM) AS IS IMPOSED BY THE ADMIRALTY LAW ON
THE PRIVATE SHIPOWNER  ...  ."  CANADIAN AVIATOR, LTD., V. UNITED
STATES, 324 U.S. 215, 228.  AND THERE CAN BE NO QUESTION THAT A PRIVATE
SHIPOWNER IN A CASE SUCH AS THIS WOULD BE LIABLE FOR HALF OF ALL THE
PETITIONER'S PROVABLE DAMAGES, INCLUDING THE $16,000 PAID TO OSTROM. 
THE GOVERNMENT ARGUES, HOWEVER, THAT THE "PLAIN WORDS" OF THE FEDERAL
COMPENSATION STATUTE NEVERTHELESS OPERATE TO LIMIT THE GOVERNMENT'S
LIABILITY IN THIS CASE. 

WITH RESPECT TO THE GOVERNMENT'S LIABILITY "TO THE EMPLOYEE, HIS LEGAL
REPRESENTATIVE, SPOUSE, DEPENDENTS, NEXT OF KIN, AND ANYONE OTHERWISE
ENTITLED TO RECOVER DAMAGES FROM THE UNITED STATES  ...  ."  THE
GOVERNMENT POINTS OUT THAT THE GENERAL WORDS "ANYONE OTHERWISE ENTITLED
TO RECOVER DAMAGES" LITERALLY WOULD COVER A SHIPOWNER ENTITLED TO
RECOVER DIVIDED DAMAGES AFTER A MUTUAL FAULT COLLISION.  BUT THE
GENERAL LANGUAGE UPON WHICH THE GOVERNMENT RELIES FOLLOWS EXPLICIT
ENUMERATION OF SPECIFIC CATEGORIES:  EMPLOYEES, THEIR REPRESENTATIVES,
AND THEIR DEPENDENTS.  UNDER THE TRADITIONAL RULE OF STATUTORY
CONSTRUCTION WHICH COUNSELS AGAINST GIVING TO GENERAL WORDS A MEANING
TOTALLY UNRELATED TO THE MORE SPECIFIC TERMS OF A STATUTE, WE THINK THE
MEANING OF THE STATUTORY LANGUAGE IS FAR FROM "PLAIN." 

THE LEGISLATIVE HISTORY OF THE FEDERAL EMPLOYEES' COMPENSATION ACT,
ORIGINALLY PASSED IN 1916, SHOWS THAT THE CONCERN OF CONGRESS WAS TO
PROVIDE FEDERAL EMPLOYEES A SWIFT, ECONOMICAL, AND ASSURED RIGHT OF
COMPENSATION FOR INJURIES ARISING OUT OF THE EMPLOYMENT RELATIONSHIP,
REGARDLESS OF THE NEGLIGENCE OF THE EMPLOYEE OR HIS FELLOW SERVANTS, OR
THE LACK OF FAULT ON THE PART OF THE UNITED STATES.  THE PURPOSE OF
SEC.  7(B), ADDED IN 1949, WAS TO ESTABLISH THAT, AS BETWEEN THE
GOVERNMENT ON THE ONE HAND AND ITS EMPLOYEES AND THEIR REPRESENTATIVES
OR DEPENDENTS ON THE OTHER, THE STATUTORY REMEDY WAS TO BE EXCLUSIVE. 
THERE IS NO EVIDENCE WHATEVER THAT CONGRESS WAS CONCERNED WITH THE
RIGHTS OF UNRELATED THIRD PARTIES, MUCH LESS OF ANY PURPOSE TO DISTURB
SETTLED DOCTRINES OF ADMIRALTY LAW AFFECTING THE MUTUAL RIGHTS AND
LIABILITIES OF PRIVATE SHIPOWNERS IN COLLISION CASES.  (FN5) 

IS NEARLY IDENTICAL TO SEC. 7(B) OF THE FEDERAL EMPLOYEES' COMPENSATION
ACT IN PROVIDING THAT "THE LIABILITY OF AN EMPLOYER  ...  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  ... ."  (FN6)  IN RYAN CO. V. PAN-ATLANTIC CORP., 350
U.S. 124, IT WAS HELD THAT DESPITE THIS EXCLUSIVE LIABILITY PROVISION,
A SHIPOWNER WAS ENTITLED TO REIMBURSEMENT FROM A LONGSHOREMAN'S
EMPLOYER FOR DAMAGES RECOVERED AGAINST THE SHIPOWNER BY THE
LONGSHOREMAN INJURED BY THE EMPLOYER'S NEGLIGENCE.  THE COURT'S
DECISION IN RYAN WAS BASED UPON THE EXISTENCE OF A CONTRACTUAL
RELATIONSHIP BETWEEN THE SHIPOWNER AND THE EMPLOYER.  IN A SERIES OF
SUBSEQUENT CASES, THE SAME RESULT WAS REACHED, ALTHOUGH THE CONTRACTUAL
RELATIONSHIP WAS CONSIDERABLY MORE ATTENUATED.  WEYERHAEUSER S.S. CO.
V. NACIREMA CO., 355 U.S. 563; CRUMADY V. THE J.H.  FISSER, 358 U.S.
423; WATERMAN CO. V. DUGAN & MCNAMARA, 364 U.S. 421. 

IN THE PRESENT CASE THERE WAS NO CONTRACTUAL RELATIONSHIP BETWEEN THE
UNITED STATES AND THE PETITIONER, GOVERNING THEIR CORRELATIVE RIGHTS
AND DUTIES.  THERE IS INVOLVED HERE, INSTEAD, A RULE OF ADMIRALTY LAW
WHICH, FOR MORE THAN 100 YEARS, HAS GOVERNED WITH AT LEAST EQUAL
CLARITY THE CORRELATIVE RIGHTS AND DUTIES OF TWO SHIPOWNERS WHOSE
VESSELS HAVE BEEN INVOLVED IN A COLLISION IN WHICH BOTH WERE AT FAULT. 
THE SCHOONER CATHARINE V. DICKINSON, 17 HOW.  170, 177; THE NORTH STAR,
106 U.S. 17, 21.  SEE HALCYON LINES V. HAENN SHIP CORP., 342 U.S. 282,
284.  LONG AGO THIS COURT HELD THAT THE FULL SCOPE OF THE DIVIDED
DAMAGES RULE MUST PREVAIL OVER A STATUTORY PROVISION WHICH, LIKE THE
ONE INVOLVED IN THE PRESENT CASE, LIMITED THE LIABILITY OF ONE OF THE
SHIPOWNERS WITH RESPECT TO AN ELEMENT OF DAMAGES INCURRED BY THE OTHER
IN A MUTUAL FAULT COLLISION.  THE CHATTAHOOCHEE, 173 U.S. 540.  THE
STATUTE AT ISSUE IN THAT CASE WAS THE HARTER ACT, WHICH CATEGORICALLY
PROVIDES THAT CARGO CANNOT COLLECT DIRECTLY FROM THE CARRYING VESSEL
FOR DAMAGES AS A RESULT OF FAULTS IN NAVIGATION.  (FN7)  THE COURT HELD
THAT DESPITE THIS STATUTORY PROVISION, THE CARRYING VESSEL MUST SHARE,
ACCORDING TO THE DIVIDED DAMAGES RULE, DAMAGES SUSTAINED BY THE
NONCARRYING VESSEL RESULTING FROM LIABILITY TO THE CARRYING VESSEL'S
CARGO.  SEE ALSO AKTSLSK.  CUZCO V. THE SUCARSECO, 294 U.S. 394. 

IN THIS CASE, AS IN THE CHATTAHOOCHEE, WE HOLD THAT THE SCOPE OF THE
DIVIDED DAMAGES RULE IN MUTUAL FAULT COLLISIONS IS UNAFFECTED BY A
STATUTE ENACTED TO LIMIT THE LIABILITY OF ONE OF THE SHIPOWNERS TO
UNRELATED THIRD PARTIES.  THE JUDGEMENT IS REVERSED. 

FN1  43 STAT. 1112, 46 U.S.C. SEC. 781 ET SEQ. 

FN2  39 STAT. 742, AS AMENDED, 5 U.S.C. SEC. 751 ET SEQ. 

FN3  "IF AN INJURY OR DEATH FOR WHICH COMPENSATION IS PAYABLE  ...
IS CAUSED UNDER CIRCUMSTANCES CREATING A LEGAL LIABILITY IN SOME PERSON
OTHER THAN THE UNITED STATES TO PAY DAMAGES THEREFOR, AND A BENEFICIARY
ENTITLED TO COMPENSATION FROM THE UNITED STATES FOR SUCH INJURY OR
DEATH RECEIVES, AS A RESULT OF A SUIT BROUGHT BY HIM OR ON HIS BEHALF,
OR AS A RESULT OF A SETTLEMENT MADE BY HIM OR ON HIS BEHALF, ANY MONEY
OR OTHER PROPERTY IN SATISFACTION OF THE LIABILITY OF SUCH OTHER
PERSON, SUCH BENEFICIARY SHALL, AFTER DEDUCTING THE COSTS OF SUIT AND A
REASONABLE ATTORNEY'S FEE, APPLY THE MONEY OR OTHER PROPERTY SO
RECEIVED IN THE FOLLOWING MANNER: 

"(A)  IF HIS COMPENSATION HAS BEEN PAID IN WHOLE OR IN PART, HE SHALL
REFUND TO THE UNITED STATES THE AMOUNT OF COMPENSATION WHICH HAS BEEN
PAID BY THE UNITED STATES  ...  ."  5 U.S.C. SEC. 777. 

FN4  63 STAT. 861, 5 U.S.C. SEC. 757(B). 

FN5  THE SENATE REPORT EXPLAINED THE ADDITION OF SEC. 7(B) AS
FOLLOWS: 

"SECTION 7 OF THE ACT WOULD BE AMENDED BY DESIGNATING THE PRESENT
LANGUAGE AS SUBSECTION '(A)' AND BY ADDING A NEW SUBSECTION '(B).'  THE
PURPOSE OF THE LATTER IS TO MAKE IT CLEAR THAT THE RIGHT TO
COMPENSATION BENEFITS UNDER THE ACT IS EXCLUSIVE AND IN PLACE OF ANY
AND ALL OTHER LEGAL LIABILITY OF THE UNITED STATES OR ITS
INSTRUMENTALITIES OF THE KIND WHICH CAN BE ENFORCED BY ORIGINAL
PROCEEDING WHETHER ADMININSTRATIVE OR JUDICIAL, IN A CIVIL ACTION OR IN
ADMIRALTY OR BY ANY PROCEEDING UNDER ANY OTHER WORKMEN'S COMPENSATION
LAW OR UNDER ANY FEDERAL TORT LIABILITY STATUTE.  THUS, AN IMPORTANT
GAP IN THE PRESENT LAW WOULD BE FILLED AND AT THE SAME TIME NEEDLESS
AND EXPENSIVE LITIGATION WILL BE REPLACED WITH MEASURED JUSTICE.  THE
SAVINGS TO THE UNITED STATES, BOTH IN DAMAGES RECOVERED AND IN THE
EXPENSE OF HANDLING THE LAWSUITS, SHOULD BE VERY SUBSTANTIAL AND THE
EMPLOYEES WILL BENEFIT ACCORDINGLY UNDER THE COMPENSATION ACT AS
LIBERALIZED BY THIS BILL. 

"WORKMEN'S COMPENSATION LAWS, IN GENERAL, SPECIFY THAT THE REMEDY
THEREIN PROVIDED SHALL BE THE EXCLUSIVE REMEDY.  THE BASIS THEORY
SUPPORTING ALL WORKMEN'S COMPENSATION LEGISLATION IS THAT THE REMEDY
AFFORDED IS A SUBSTITUTE FOR THE EMPLOYEE'S (OR DEPENDENT'S) FORMER
REMEDY AT LAW FOR DAMAGES AGAINST THE EMPLOYER.  WITH THE CREATION OF
CORPORATE INSTRUMENTALITIES OF GOVERNMENT AND WITH THE ENACTMENT OF
VARIOUS STATUTES AUTHORIZING SUITS AGAINST THE UNITED STATES FOR TORT,
NEW PROBLEMS HAVE ARISEN.  SUCH STATUTES AS THE SUITS IN ADMIRALTY ACT,
THE PUBLIC VESSELS ACT, THE FEDERAL TORT CLAIMS ACT AND THE LIKE,
AUTHORIZE IN GENERAL TERMS THE BRINGING OF CIVIL ACTIONS FOR DAMAGES
AGAINST THE UNITED STATES.  THE INADEQUACY OF THE BENEFITS UNDER THE
EMPLOYEES' COMPENSATION ACT HAS TENDED TO CAUSE FEDERAL EMPLOYEES TO
SEEK RELIEF UNDER THESE GENERAL STATUTES.  SIMILARLY, CORPORATE
INSTRUMENTALITIES CREATED BY THE CONGRESS AMONG THEIR POWERS ARE
AUTHORIZED TO SUE AND BE SUED, AND THIS, IN TURN, HAS RESULTED IN
FILING OF SUITS BY EMPLOYEES AGAINST SUCH INSTRUMENTALITIES BASED UPON
ACCIDENTS IN EMPLOYMENTS. 

"THIS SITUATION HAS BEEN OF CONSIDERABLE CONCERN TO ALL GOVERNMENT
AGENCIES AND ESPECIALLY TO THE CORPORATE INSTRUMENTALITIES.  SINCE THE
PROPOSED REMEDY WOULD AFFORD EMPLOYEES AND THEIR DEPENDENTS A PLANNED
AND SUBSTANTIAL PROTECTION, TO PERMIT OTHER REMEDIES BY CIVIL ACTION OR
SUITS WOULD NOT ONLY BE UNNECESSARY, BUT WOULD IN GENERAL BE
UNECONOMICAL, FROM THE STANDPOINT OF BOTH THE BENEFICIARIES INVOLVED
AND THE GOVERNMENT."  S. REP. NO. 836, 81ST CONG., 1ST SESS. 23. 

FN6  44 STAT. 1426, 33 U.S.C. SEC. 905. 

FN7  THE HARTER ACT PROVIDES IN PERTINENT PART: 

"IF THE OWNER OF ANY VESSEL TRANSPORTING MERCHANDISE OR PROPERTY TO
OR FROM ANY PORT IN THE UNITED STATES OF AMERICA SHALL EXERCISE DUE
DILIGENCE TO MAKE THE SAID VESSEL IN ALL RESPECTS SEAWORTHY AND
PROPERLY MANNED, EQUIPPED, AND SUPPLIED, NEITHER THE VESSEL, HER OWNER
OR OWNERS, AGENT, OR CHARTERERS, SHALL BECOME OR BE HELD RESPONSIBLE
FOR DAMAGE OR LOSS RESULTING FROM FAULTS OR ERRORS IN NAVIGATION OR IN
THE MANAGEMENT OF SAID VESSEL NOR SHALL THE VESSEL, HER OWNER OR
OWNERS, CHARTERERS, AGENT, OR MASTER BE HELD LIABLE FOR LOSSES ARISING
FROM DANGERS OF THE SEA OR OTHER NAVIGABLE WATERS, ACTS OF GOD, OR
PUBLIC ENEMIES, OR THE INHERENT DEFECT, QUALITY, OR VICE OF THE THING
CARRIED, OR FROM INSUFFICIENCY OF PACKAGE, OR SEIZURE UNDER LEGAL
PROCESS, OR FOR LOSS RESULTING FROM ANY ACT OR OMISSION OF THE SHIPPER
OR OWNER OF THE GOODS, HIS AGENT OR REPRESENTATIVE, OR FROM SAVING OR
ATTEMPTING TO SAVE LIFE OR PROPERTY AT SEA, OR FROM ANY DEVIATION IN
RENDERING SUCH SERVICE."  46 U.S.C. SEC. 192.    THIS PROVISION HAS
BEEN SUBSTANTIALLY REENACTED IN SEC. 4(2) OF THE CARRIAGE OF GOODS BY
SEA ACT, WHICH PROVIDES: 

"(2) NEITHER THE CARRIER NOR THE SHIP SHALL BE RESPONSIBLE FOR LOSS
OR DAMAGE ARISING OR RESULTING FROM: 

"(A)  ACT, NEGLECT, OR DEFAULT OF THE MASTER, MARINER, PILOT, OR THE
SERVANTS OF THE CARRIER IN THE NAVIGATION OR IN THE MANAGEMENT OF THE
SHIP;" 46 U.S.C. SEC. 1304(2)(A). 
..END :























STATE TAX COMMISSION OF UTAH V. PACIFIC STATES CAST IRON PIPE CO. 372
U.S. 605 


NO. 178.  ARGUED MARCH 20, 1963.  - DECIDED APRIL 1, 1963.  - 13 UTAH 2D
113, 369 P.2D 123, REVERSED. 


RESPONDENT, A NEVADA CORPORATION, MANUFACTURED IN UTAH CERTAIN CAST
IRON PIPE AND RELATED PRODUCTS TO MEET THE SPECIFICATIONS OF SPECIFIC
OUT-OF-STATE JOBS.  DELIVERY WAS MADE AND TITLE PASSED TO THE PURCHASER
AT RESPONDENT'S FOUNDRY IN UTAH, AND THE PURCHASER HAULED THE MATERIAL
TO THE PREDETERMINED OUT-OF-STATE DESTINATION.  HELD:  SINCE PASSAGE OF
TITLE AND DELIVERY TO THE PURCHASER TOOK PLACE WITHIN UTAH, THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION DID NOT PREVENT UTAH FROM
LEVYING AND COLLECTING A SALES TAX ON THIS TRANSACTION.  PP. 605-606. 

STATE TAX COMMISSION OF UTAH V. PACIFIC STATES CAST IRON PIPE CO. 

CERTIORARI TO THE SUPREME COURT OF UTAH. 

PER CURIAM. 

RESPONDENT, A NEVADA CORPORATION QUALIFIED TO DO BUSINESS IN UTAH,
MANUFACTURERS CAST-IRON PIPE AND RELATED ITEMS IN PROVO, UTAH, AND
SELLS ITS PRODUCTS THROUGHOUT THE WESTERN STATES.  PRICES SET BY
RESPONDENT ARE FOR THE GOODS DELIVERED AT A SPECIFIC JOB SITE, AND
INTERSTATE DELIVERY IS USUALLY MADE BY COMMON CARRIER OR IN
RESPONDENT'S OWN EQUIPMENT.  THE SALES HERE INVOLVED OCCURRED IN A
DIFFERENT MANNER.  IN EACH CASE THE MATERIAL WAS MANUFACTURED TO MEET
THE SPECIFICATIONS OF SPECIFIC OUT-OF-STATE JOBS.  THE CONTRACT CALLED
FOR OUT-OF-STATE SHIPMENT, AND RESPONDENT SET A DESTINATION PRICE WHICH
INCLUDED THE GOING COMMON CARRIER FREIGHT CHARGES BETWEEN THE TWO
POINTS INVOLVED.  BUT DELIVERY WAS MADE AND TITLE PASSED TO THE
PURCHASER AT RESPONDENT'S FOUNDRY IN PROVO.  THE PURCHASER THEN
TRANSPORTED THE PIPE WITH ITS OWN EQUIPMENT TO THE PREDETERMINED OUT-OF
STATE DESTINATION.  THE COMMON CARRIER TARIFF WAS CREDITED TO THE
PURCHASER. 

THE UTAH TAX COMMISSION IMPOSED UPON RESPONDENT A SALES TAX
DEFICIENCY COVERING THESE SALES. 

THE SUPREME COURT OF UTAH REVERSED THE TAX COMMISSION, ON THE GROUNDS
THAT THE CERTAINTY OF INTERSTATE SHIPMENT MADE THE IMPOSITION OF THE
TAX ON THESE SHIPMENTS UNCONSTITUTIONAL UNDER THE COMMERCE CLAUSE.  13
UTAH 2D 113, 369 P.2D 123.  WE REVERSE ITS JUDGMENT ON THE AUTHORITY OF
INTERNATIONAL HARVESTER CO. V. DEPARTMENT OF TREASURY, 322 U.S. 340,
345, WHICH HOLDS ON FACTS CLOSE TO THOSE OF THIS CASE THAT A STATE MAY
LEVY AND COLLECT A SALES TAX, SINCE THE PASSAGE OF TITLE AND DELIVERY
TO THE PURCHASER TOOK PLACE WITHIN THE STATE.  REVERSED. 
..END :



HARSHMAN V. UNITED STATES 372 U.S. 607 


NO. 515.  DECIDED APRIL 1, 1963.  - REPORTED BELOW:  307 F.2D 590. 


JUDGMENT VACATED AND CASE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS
TO DISMISS INDICTMENT. 

HARSHMAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

UPON SUGGESTION OF THE SOLICITOR GENERAL THE JUDGMENT IS VACATED AND
THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS WITH INSTRUCTIONS TO DISMISS THE
INDICTMENT. 
..END :











PARKER V. UNITED STATES 372 U.S. 608 


NO. 516.  DECIDED APRIL 1, 1963.  - REPORTED BELOW:  307 F.2D 585. 


JUDGMENT VACATED AND CASE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS
TO DISMISS INDICTMENT. 

PARKER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

UPON SUGGESTION OF THE SOLICITOR GENERAL THE JUDGMENT IS VACATED AND
THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS WITH INSTRUCTIONS TO DISMISS THE
INDICTMENT. 
..END :











LYNUMN V. ILLINOIS 372 U.S. 528 


NO. 9.  ARGUED FEBRUARY 19, 1963.  - DECIDED MARCH 25, 1963.  - 21 ILL.
2D 63, 171 N.E.2D 17, REVERSED. 


PETITIONER WAS TRIED IN AN ILLINOIS STATE COURT, CONVICTED OF THE
UNLAWFUL POSSESSION AND SALE OF MARIJUANA, AND SENTENCED TO
IMPRISONMENT.  HER CONVICTION WAS SUSTAINED BY THE STATE SUPREME COURT,
NOTWITHSTANDING THE ADMISSION IN EVIDENCE AT HER TRIAL OF AN ORAL
CONFESSION OBTAINED BY THREATS OF POLICE OFFICERS THAT, IF SHE DID NOT
"COOPERATE," SHE WOULD BE DEPRIVED OF STATE FINANCIAL AID FOR HER
DEPENDENT CHILDREN AND THAT HER CHILDREN WOULD BE TAKEN FROM HER AND
SHE MIGHT NEVER SEE THEM AGAIN.  HELD:  PETITIONER'S CONFESSION WAS
COERCED; ITS ADMISSION IN EVIDENCE VIOLATED THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT; AND THE JUDGMENT AFFIRMING HER CONVICTION IS
REVERSED.  PP. 529-538. 

1.  PETITIONER'S CONFESSION, MADE IN THE CIRCUMSTANCES SHOWN BY THIS
RECORD, WAS COERCED.  PP. 529-534. 

2.  IN VIEW OF A CERTIFICATION TO THIS COURT BY THE STATE SUPREME
COURT THAT "DECISION OF THE FEDERAL CLAIM  ...  WAS NECESSARY TO OUR
JUDGMENT IN THIS CASE," IT CANNOT BE SAID THAT PETITIONER FAILED
PROPERLY TO ASSERT OR PRESERVE THAT CLAIM AT HER TRIAL AND THAT,
THEREFORE, HER CONVICTION RESTS UPON AN ADEQUATE AND INDEPENDENT STATE
GROUND.  PP. 535-536. 

3.  IT CANNOT BE SAID THAT PETITIONER'S CONVICTION DID NOT REST IN
ANY PART ON HER CONFESSION, BECAUSE THE RECORD AFFIRMATIVELY SHOWS THAT
HER CONFESSION WAS ADMITTED IN EVIDENCE AND CONSIDERED BY THE TRIAL AND
APPELLATE COURTS.  P. 536. 

4.  ADMISSION OF PETITIONER'S COERCED CONFESSION IN EVIDENCE WAS NOT
HARMLESS ERROR, EVEN IF THE OTHER EVIDENCE WAS SUFFICIENT TO SUPPORT
HER CONVICTION.  PP. 536-538. 

LYNUMN V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS TRIED IN THE CRIMINAL COURT OF COOK COUNTY,
ILLINOIS, ON AN INDICTMENT CHARGING HER WITH THE UNLAWFUL POSSESSION
AND SALE OF MARIJUANA.  SHE WAS CONVICTED AND SENTENCED TO THE
PENITENTIARY FOR "NOT LESS THAN TEN NOR MORE THAN ELEVEN YEARS."  THE
JUDGMENT OF CONVICTION WAS AFFIRMED ON APPEAL BY THE ILLINOIS SUPREME
COURT.  21 ILL. 2D 63, 171 N.E.2D 17.  WE GRANTED CERTIORARI.  370 U.S.
933.  FOR THE REASONS STATED IN THIS OPINION, WE HOLD THAT THE
PETITIONER'S TRIAL DID NOT MEET THE DEMANDS OF DUE PROCESS OF LAW, AND
WE ACCORDINGLY SET ASIDE THE JUDGMENT BEFORE US. 

ON JANUARY 17, 1959, THREE CHICAGO POLICE OFFICERS ARRESTED JAMES
ZENO FOR UNLAWFUL POSSESSION OF NARCOTICS.  THEY TOOK HIM TO A DISTRICT
POLICE STATION.  THERE THEY TOLD HIM THAT IF HE "WOULD SET SOMEBODY UP
FOR THEM, THEY WOULD GO LIGHT" ON HIM.  HE AGREED TO "COOPERATE" AND
TELEPHONED THE PETITIONER, TELLING HER THAT HE WAS COMING OVER TO HER
APARTMENT.  THE OFFICERS AND ZENO THEN WENT TO THE PETITIONER'S
APARTMENT HOUSE, AND ZENO WENT UPSTAIRS TO THE THIRD FLOOR WHILE THE
OFFICERS WAITED BELOW.  SOME TIME LATER, VARIOUSLY ESTIMATED AS FROM
FIVE TO 20 MINUTES, ZENO EMERGED FROM THE PETITIONER'S THIRD FLOOR
APARTMENT WITH A PACKAGE CONTAINING A SUBSTANCE LATER DETERMINED TO BE
MARIJUANA.  THE OFFICERS TOOK THE PACKAGE AND TOLD ZENO TO RETURN TO
THE PETITIONER'S APARTMENT ON THE PRETEXT THAT HE HAD LEFT HIS GLASSES
THERE.  WHEN THE PETITIONER WALKED OUT INTO THE HALLWAY IN RESPONSE TO
ZENO'S CALL, ONE OF THE OFFICERS SEIZED HER AND PLACED HER UNDER
ARREST.  (FN1)  THE OFFICERS AND ZENO THEN ENTERED THE PETITIONER'S
APARTMENT.  (FN2)  THE PETITIONER AT FIRST DENIED SHE HAD SOLD THE
MARIJUANA TO ZENO, INSISTING THAT WHILE HE WAS IN HER APARTMENT ZENO
HAD MERELY REPAID A LOAN.  AFTER FURTHER CONVERSATIONS WITH THE
OFFICERS, HOWEVER, SHE TOLD THEM THAT SHE HAD SOLD THE MARIJUANA TO
ZENO. 

THE OFFICERS TESTIFIED TO THIS ORAL CONFESSION AT THE PETITIONER'S
TRIAL, AND IT IS THIS TESTIMONY WHICH, WE NOW HOLD, FATALLY INFECTED
THE PETITIONER'S CONVICTION.  THE PETITIONER TESTIFIED AT THE TRIAL
THAT SHE HAD NOT IN FACT SOLD ANY MARIJUANA TO ZENO, THAT ZENO HAD
MERELY REPAID A LONG-STANDING LOAN.  (FN3)  SHE ALSO TESTIFIED,
HOWEVER, THAT SHE HAD TOLD THE OFFICERS ON THE DAY OF HER ARREST THAT
SHE HAD SOLD ZENO MARIJUANA, DESCRIBING THE CIRCUMSTANCES UNDER WHICH
THIS STATEMENT WAS MADE AS FOLLOWS: 

"I TOLD HIM (OFFICER SIMS) I HADN'T SOLD ZENO; I DIDN'T KNOW ANYTHING
ABOUT NARCOTICS AND I HAD NO SOURCE OF SUPPLY.  HE KEPT INSISTING I HAD
A SOURCE OF SUPPLY AND HAD BEEN DEALING IN NARCOTICS.  I KEPT TELLING
HIM I DID NOT AND THAT I KNEW NOTHING ABOUT IT.  THEN HE STARTED
TELLING ME I COULD GET 10 YEARS AND THE CHILDREN COULD BE TAKEN AWAY,
AND AFTER I GOT OUT THEY WOULD BE TAKEN AWAY AND STRANGERS WOULD HAVE
THEM, AND IF I COULD COOPERATE HE WOULD SEE THEY WEREN'T; AND HE WOULD
RECOMMEND LENIENCY AND I HAD BETTER DO WHAT THEY TOLD ME IF I WANTED TO
SEE MY KIDS AGAIN.  THE TWO CHILDREN ARE THREE AND FOUR YEARS OLD. 
THEIR FATHER IS DEAD; THEY LIVE WITH ME.  I LOVE MY CHILDREN VERY
MUCH.  I HAVE NEVER BEEN ARRESTED FOR ANYTHING IN MY WHOLE LIFE
BEFORE.  I DID NOT KNOW HOW MUCH POWER A POLICEMAN HAD IN A
RECOMMENDATION TO THE STATE'S ATTORNEY OR TO THE COURT.  I DID NOT KNOW
THAT A COURT AND A STATE'S ATTORNEY ARE NOT BOUND BY A POLICE OFFICER'S
RECOMMENDATIONS.  I DID NOT KNOW ANYTHING ABOUT IT.  ALL THE OFFICERS
TALKED TO ME ABOUT MY CHILDREN AND THE TIME I COULD GET FOR NOT
COOPERATING.  ALL THREE OFFICERS DID.  AFTER THAT CONVERSATION I
BELIEVED THAT IF I COOPERATED WITH THEM AND ANSWERED THE QUESTIONS THE
WAY THEY WANTED ME TO ANSWER, I BELIEVED THAT I WOULD NOT BE
PROSECUTED.  THEY HAD SAID I HAD BETTER SAY WHAT THEY WANTED ME TO, OR
I WOULD LOSE THE KIDS.  I SAID I WOULD SAY ANYTHING THEY WANTED ME TO
SAY.  I ASKED WHAT I WAS TO SAY.  I WAS TOLD TO SAY 'YOU MUST ADMIT YOU
GAVE ZENO THE PACKAGE' SO I SAID 'YES, I GAVE IT TO HIM.' 

     *         *         *         *         * 

"  ...  THE ONLY REASON I HAD FOR ADMITTING IT TO THE POLICE WAS THE
HOPE OF SAVING MYSELF FROM GOING TO JAIL AND BEING TAKEN AWAY FROM MY
CHILDREN.  THE STATEMENT I MADE TO THE POLICE AFTER THEY PROMISED THAT
THEY WOULD INTERCEDE FOR ME, THE STATEMENTS ADMITTING THE CRIME, WERE
FALSE. 

     *         *         *         *         * 

"  ...  MY STATEMENT TO THE POLICE OFFICERS THAT I SOLD THE MARIJUANA
TO ZENO WAS FALSE.  I LIED TO THE POLICE AT THAT TIME.  I LIED BECAUSE
THE POLICE TOLD ME THEY WERE GOING TO SEND ME TO JAIL FOR 10 YEARS AND
TAKE MY CHILDREN, AND I WOULD NEVER SEE THEM AGAIN; SO I AGREED TO SAY
WHATEVER THEY WANTED ME TO SAY." 

THE POLICE OFFICERS DID NOT DENY THAT THESE WERE THE CIRCUMSTANCES
UNDER WHICH THE PETITIONER TOLD THEM THAT SHE HAD SOLD MARIJUANA TO
ZENO.  TO THE CONTRARY, THEIR TESTIMONY LARGELY CORROBORATED THE
PETITIONER'S TESTIMONY.  OFFICER SIMS TESTIFIED: 

"I TOLD HER THEN THAT ZENO HAD BEEN TRAPPED AND WE ASKED HIM TO
COOPERATE; THAT HE HAD MADE A PHONE CALL TO HER AND SUBSEQUENTLY HAD
PURCHASED THE EVIDENCE FROM HER.  I TOLD HER THEN IF SHE WISHED TO
COOPERATE, WE WOULD BE WILLING TO RECOMMEND TO THE STATE LENIENCY IN
HER CASE.  AT THAT TIME, SHE SAID, 'YES, I DID SELL IT TO HIM.' 

     *         *         *         *         * 

"  ...  WHILE I WAS TALKING TO HER IN THE BEDROOM, SHE TOLD ME THAT
SHE HAD CHILDREN AND SHE HAD TAKEN THE CHILDREN OVER TO HER MOTHER-IN
LAW, TO KEEP HER CHILDREN. 

"Q.  DID YOU OR ANYBODY IN YOUR PRESENCE INDICATE OR SUGGEST OR SAY
TO HER THAT HER CHILDREN WOULD BE TAKEN AWAY FROM HER IF SHE DIDN'T DO
WHAT YOU ASKED HER TO DO? 

"WITNESS:  I BELIEVE THERE WAS SOME MENTION OF HER CHILDREN BEING
TAKEN AWAY FROM HER IF SHE WAS ARRESTED. 

"THE COURT:  BY WHOM?  WHO MADE MENTION OF IT? 

"THE WITNESS:  I BELIEVE OFFICER BRYSON MADE THAT STATEMENT AND I
THINK I MADE THE STATEMENT AT SOME TIME DURING THE COURSE OF OUR
DISCUSSION THAT HER CHILDREN COULD BE TAKEN FROM HER.  WE DID NOT SAY
IF SHE COOPERATED THEY WOULDN'T BE TAKEN.  I DON'T KNOW WHETHER KOBAR
SAID THAT TO HER OR NOT.  I DON'T RECALL IF KOBAR SAID THAT TO HER OR
NOT. 

     *         *         *     *         * 

"I ASKED HER WHO THE CLOTHING BELONGED TO.  SHE SAID THEY WERE HER
CHILDREN'S.  I ASKED HOW MANY SHE HAD AND SHE SAID 2.  I ASKED HER
WHERE THEY WERE OR WHO TOOK CARE OF THEM.  SHE SAID THE CHILDREN WERE
OVER AT THE MOTHER'S OR MOTHER-IN-LAW.  I ASKED HER HOW DID SHE TAKE
CARE OF HERSELF AND SHE SAID SHE WAS ON ADC.  I TOLD HER THAT IF WE
TOOK HER INTO THE STATION AND CHARGED HER WITH THE OFFENSE, THAT THE
ADC WOULD PROBABLY BE CUT OFF AND ALSO THAT SHE WOULD PROBABLY LOSE
CUSTODY OF HER CHILDREN.  THAT WAS NOT BEFORE I SAID IF SHE COOPERATED,
IT WOULD GO LIGHT ON HER.  IT WAS DURING THE SAME CONVERSATION. 

     *         *         *         *         * 

"  ...  I MADE THE STATEMENT TO HER MORE THAN ONCE; BUT I DON'T KNOW
HOW MANY TIMES, THAT SHE HAD BEEN SET UP AND IF SHE COOPERATED WE WOULD
GO LIGHT WITH HER." 

OFFICER BRYSON TESTIFIED: 

"MISS LYNUMN SAID SHE WAS THINKING ABOUT HER CHILDREN AND SHE DIDN'T
WANT TO GO TO JAIL.  I WAS PRESENT AND HEARD SOMETHING PERTAINING TO
HER BEING PROMISED LENIENCY IF SHE WOULD COOPERATE.  I DON'T KNOW
EXACTLY WHO SAID IT.  I COULD HAVE, MYSELF, OR SIMS." 

IT IS THUS ABUNDANTLY CLEAR THAT THE PETITIONER'S ORAL CONFESSION WAS
MADE ONLY AFTER THE POLICE HAD TOLD HER THAT STATE FINANCIAL AID FOR
HER INFANT CHILDREN WOULD BE CUT OFF, AND HER CHILDREN TAKEN FROM HER,
IF SHE DID NOT "COOPERATE."  THESE THREATS WERE MADE WHILE SHE WAS
ENCIRCLED IN HER APARTMENT BY THREE POLICE OFFICERS AND A TWICE
CONVICTED FELON WHO HAD PURPORTEDLY "SET HER UP."  THERE WAS NO FRIEND
OR ADVISER TO WHOM SHE MIGHT TURN.  SHE HAD HAD NO PREVIOUS EXPERIENCE
WITH THE CRIMINAL LAW, AND HAD NO REASON NOT TO BELIEVE THAT THE POLICE
HAD AMPLE POWER TO CARRY OUT THEIR THREATS. 

WE THINK IT CLEAR THAT A CONFESSION MADE UNDER SUCH CIRCUMSTANCES
MUST BE DEEMED NOT VOLUNTARY, BUT COERCED.  THAT IS THE TEACHING OF OUR
CASES.  WE HAVE SAID THAT THE QUESTION IN EACH CASE IS WHETHER THE
DEFENDANT'S WILL WAS OVERBORNE AT THE TIME HE CONFESSED.  CHAMBERS V.
FLORIDA, 309 U.S. 227; WATTS V. INDIANA, 338 U.S. 49, 52, 53; LEYRA V.
DENNO, 347 U.S. 556, 558.  IF SO, THE CONFESSION CANNOT BE DEEMED "THE
PRODUCT OF A RATIONAL INTELLECT AND A FREE WILL."  BLACKBURN V.
ALABAMA, 361 U.S. 199, 208.  SEE ALSO SPANO V. NEW YORK, 360 U.S. 315;
ASHCRAFT V. TENNESSEE, 322 U.S. 143; AND SEE PARTICULARLY, HARRIS V.
SOUTH CAROLINA, 338 U.S. 68, 70. 

IN THIS CASE COUNSEL FOR THE STATE OF ILLINOIS HAS CONCEDED, AT LEAST
FOR PURPOSES OF ARGUMENT, THAT THE TOTALITY OF THE CIRCUMSTANCES
DISCLOSED BY THE RECORD MUST BE DEEMED TO HAVE COMBINED TO PRODUCE AN
IMPELLINGLY COERCIVE EFFECT UPON THE PETITIONER AT THE TIME SHE TOLD
THE OFFICERS SHE HAD SOLD MARIJUANA TO ZENO.  BUT COUNSEL FOR THE STATE
ARGUES THAT WE SHOULD NONETHELESS AFFIRM THE JUDGMENT BEFORE US UPON
EITHER OF TWO ALTERNATIVE GROUNDS.  IT IS CONTENDED FIRST THAT THE
PETITIONER DID NOT PROPERLY ASSERT OR PRESERVE HER FEDERAL
CONSTITUTIONAL CLAIM IN ACCORD WITH ESTABLISHED RULES OF ILLINOIS
PROCEDURE, AND THAT HER CONVICTION THEREFORE RESTS UPON AN ADEQUATE AND
INDEPENDENT FOUNDATION OF STATE LAW.  SECONDLY, IT IS URGED THAT THE
PETITIONER'S CONVICTION "DOES NOT REST IN WHOLE OR IN ANY PART UPON
PETITIONER'S CONFESSION."  WE FIND BOTH OF THESE CONTENTIONS WITHOUT
VALIDITY. 

IT IS TRUE THAT THE RECORD IN THIS CASE DOES NOT SHOW THAT THE
PETITIONER EXPLICITLY ASSERTED HER FEDERAL CONSTITUTIONAL CLAIM IN THE
TRIAL COURT.  AND IT IS SAID THAT IN ILLINOIS THE PROCEDURAL RULE IS
SETTLED THAT WHERE A CONSTITUTIONAL CLAIM WHICH IS BASED NOT UPON THE
ALLEGED UNCONSTITUTIONALITY OF A STATUTE, BUT UPON THE FACTS OF A
PARTICULAR CASE, IS NOT CLEARLY AND APPROPRIATELY RAISED IN THE TRIAL
COURT, THE CLAIM WILL NOT BE CONSIDERED ON APPEAL BY THE SUPREME COURT
OF ILLINOIS.  IN OTHER WORDS, SUCH A CLAIM OF CONSTITUTIONAL RIGHT, IT
IS SAID, MUST BE ASSERTED IN THE TRIAL COURT OR IT WILL BE DEEMED UPON
APPELLATE REVIEW TO HAVE BEEN WAIVED.  PEOPLE V. TOUHY, 397 ILL. 19, 72
N.E.2D 827. 

IF ALL WE HAD TO GO ON WERE THE RECORD IN THE ILLINOIS TRIAL AND
APPELLATE COURTS, THERE WOULD INDEED BE COLOR TO THE CLAIM OF COUNSEL
FOR THE STATE, AND WE WOULD BE SQUARELY FACED WITH THE NECESSITY OF
DETERMINING WHAT THE ILLINOIS PROCEDURAL RULE ACTUALLY IS, AND WHETHER
THE RULE CONSTITUTED AN ADEQUATE INDEPENDENT GROUND IN SUPPORT OF THE
JUDGMENT AFFIRMING THE PETITIONER'S CONVICTION.  BUT THAT IS NOT
NECESSARY IN THIS CASE.  FOR THERE IS HERE A SHORT AND COMPLETE ANSWER
TO THE RESPONDENT'S ARGUMENT.  BEFORE ACTING UPON THE PETITION FOR
CERTIORARI, WE ENTERED AN ORDER DIRECTED TO THIS VERY PROBLEM.  THE
ORDER ACCORDED COUNSEL FOR THE PETITIONER "OPPORTUNITY TO SECURE A
CERTIFICATE FROM THE SUPREME COURT OF ILLINOIS AS TO WHETHER THE
JUDGMENT HEREIN WAS INTENDED TO REST ON AN ADEQUATE AND INDEPENDENT
STATE GROUND, OR WHETHER DECISION OF THE FEDERAL CLAIM  ...  WAS
NECESSARY TO THE JUDGMENT RENDERED."  368 U.S. 908.  THE ANSWER OF THE
SUPREME COURT OF ILLINOIS WAS UNAMBIGUOUS.  ON JUNE 8, 1962, THAT COURT
ISSUED THE FOLLOWING "RESPONSE TO REQUEST FOR CERTIFICATE": 

"IN RESPONSE TO A REQUEST BY COUNSEL FOR THE PLAINTIFF IN ERROR WE
HEREBY CERTIFY THAT DECISION OF THE FEDERAL CLAIM REFERRED TO IN THE
ORDER OF THE UNITED STATES SUPREME COURT DATED NOVEMBER 13, 1961, WAS
NECESSARY TO OUR JUDGMENT IN THIS CASE." 

WE DECLINE TO SEARCH BEHIND THIS CERTIFICATE OF THE SUPREME COURT OF
ILLINOIS. 

THE STATE'S CONTENTION THAT THE PETITIONER'S CONVICTION DID NOT REST
IN ANY PART UPON HER CONFESSION IS QUITE WITHOUT MERIT.  THE CASE WAS
TRIED BY THE COURT WITHOUT A JURY.  THE RECORD SHOWS THAT TWICE DURING
THE TRIAL THE PETITIONER'S COUNSEL MOVED TO STRIKE THE TESTIMONY OF THE
POLICE OFFICERS AS TO THE PETITIONER'S ORAL STATEMENT TO THEM.  ON THE
FIRST OCCASION THE TRIAL JUDGE RESERVED A RULING ON THE MOTION "UNTIL
THE CLOSE OF THE STATE'S CASE."  WHEN THE MOTION WAS RENEWED, THE
RECORD STATES THAT "THE MOTION TO STRIKE WAS DENIED."  THUS THE RECORD
AFFIRMATIVELY SHOWS THAT THE EVIDENCE OF THE PETITIONER'S CONFESSION
WAS ADMITTED AND CONSIDERED BY THE TRIAL COURT. 

ON APPEAL, THE SUPREME COURT OF ILLINOIS, WHICH HAS POWER
INDEPENDENTLY TO ASSESS THE EVIDENCE OF GUILT IN A CRIMINAL CASE,
PEOPLE V. WARE, 23 ILL. 2D 59, 177 N.E.2D 362, INCLUDED IN ITS SUMMARY
OF THE PROSECUTION'S EVIDENCE IN THIS CASE THE STATEMENT THAT "THE
POLICE OFFICERS ALSO TESTIFIED TO CERTAIN ADMISSIONS OF GUILT MADE TO
THEM BY DEFENDANT ON JANUARY 17, 1959."  21 ILL. 2D, AT 67, 171 N.E.2D,
AT 19.  LATER IN ITS OPINION, THE COURT STATED: 

"A REVIEW OF THE RECORD DOES INDICATE, HOWEVER, THAT STRONG
SUGGESTIONS OF LENIENCY WERE MADE TO DEFENDANT SUBSEQUENT TO HER ARREST
AND PRIOR TO HER ADMISSIONS.  EVEN IN THE ABSENCE OF DEFENDANT'S
STATEMENTS, THERE IS CLEAR PROOF BY ZENO AND THE POLICE OFFICERS THAT
DEFENDANT GAVE ZENO A PACKAGE CONTAINING MARIJUANA.  UPON A REVIEW OF
THE ENTIRE RECORD, WE ARE CONVINCED THAT THE EVIDENCE FULLY SUPPORTS
THE JUDGMENT OF THE TRIAL COURT  ...  ."  21 ILL. 2D, AT 68, 171
N.E.2D, AT 20.    WHILE THIS STATEMENT IS NOT FREE FROM AMBIGUITY, WE
TAKE IT TO EXPRESS THE VIEW THAT EVEN IF THE TESTIMONY AS TO THE
PETITIONER'S CONFESSION WAS ERRONEOUSLY ADMITTED, THE ERROR WAS A
HARMLESS ONE IN THE LIGHT OF OTHER EVIDENCE OF THE PETITIONER'S GUILT. 
(FN4)  THAT IS AN IMPERMISSIBLE DOCTRINE.   AS WAS SAID IN PAYNE V.
ARKANSAS, "THIS COURT HAS UNIFORMLY HELD THAT EVEN THOUGH THERE MAY
HAVE BEEN SUFFICIENT EVIDENCE, APART FROM THE COERCED CONFESSION, TO
SUPPORT A JUDGMENT OF CONVICTION, THE ADMISSION IN EVIDENCE, OVER
OBJECTION, OF THE COERCED CONFESSION VITIATES THE JUDGMENT BECAUSE IT
VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT."  356 U.S.
560, AT 568.  SEE SPANO V. NEW YORK, 360 U.S. 315, 324; WATTS V.
INDIANA, 338 U.S. 49, 50, N. 2; HALEY V. OHIO, 332 U.S. 596, 599. 

THE JUDGMENT IS SET ASIDE, AND THE CASE IS REMANDED TO THE SUPREME
COURT OF ILLINOIS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  OFFICER SIMS TESTIFIED AS FOLLOWS:  "HE CALLED BEATRICE AND SAID
HE HAD LEFT HIS GLASSES IN THE APARTMENT; SHE OPENED THE DOOR AND AS
SHE CAME OUT INTO THE HALL, I WAS STANDING IN THE COMMON HALL, IN THE
VESTIBULE PART WITH THE DOOR PARTLY CLOSED.  AS SHE WALKED DOWN THE
HALLWAY TOWARD ZENO, I OPENED THE DOOR AND STEPPED INTO THE HALLWAY.  I
TOLD HER SHE WAS UNDER ARREST AND GRABBED HER BY HER HANDS, BOTH
HANDS.  AT THIS POINT, I TOLD HER THAT SHE HAD BEEN SET UP, THAT SHE
HAD JUST MADE A SALE AND I SHOWED HER THE PACKAGE." 

FN2  OFFICER SIMS TESTIFIED:  "I HAD COMPLETE PHYSICAL POSSESSION OF
HER TWO HANDS.  I HAD TURNED HER HANDS LOOSE WHEN WE WENT INTO THE
APARTMENT.  I WENT IN AHEAD OF HER.  THE DOOR WAS STILL OPEN.  THE
APARTMENT DOOR WAS STILL AJAR AND I WALKED INTO THE APARTMENT AND SHE
FOLLOWED ME IN.  WE WERE TOGETHER BUT I WAS BESIDE HER.  I BELIEVE
BRYSON AND ZENO WERE BEHIND HER.  SHE WAS BETWEEN TWO POLICE OFFICERS. 
WE PROCEEDED IN THAT FASHION TO ENTER HER APARTMENT." 

FN3  HER TESTIMONY ON THIS SUBJECT WAS AS FOLLOWS"  "ON JANUARY 17TH
ZENO CALLED ME.  HE OWED ME MONEY, $23.00.  I HAD LOANED HIM THIS MONEY
ABOUT THREE MONTHS PREVIOUSLY.  HE SAID HE WAS BEING EVICTED AND HAD
MONEY EN ROUTE FROM HIS SISTER AND IF I COULD LEND HIM THE MONEY, HE
COULD PAY HIS RENT; AND I HAVEN'T SEEN HIM SINCE.  THAT WAS THREE
MONTHS PREVIOUSLY.  ON THIS DAY HE TOLD ME ON THE PHONE HE WAS SORRY HE
HAD NOT BEEN AROUND TO PAY THE MONEY BUT HE HAD BEEN IN PRETTY BAD
SHAPE.  BUT NOW HE HAD COME INTO SOME MONEY AND WOULD COME AND PAY ME. 

     *         *         *         *      * 

"  ...  ON THAT DAY I DID NOT GIVE TO ZENO, NOR DID MR. ZENO ASK ME
IN THE TELEPHONE CONVERSATION IN WHICH HE SAID HE WAS GOING TO PAY ME
THE MONEY HE OWED ME, HE DID NOT SAY ANYTHING ABOUT HAVING A CAN READY
FOR HIM OR ANYTHING LIKE THAT. 

"HE SAID HERE IS THE MONEY I OWE YOU.  HE OWED ME $23.00  WHEN HE
GAVE ME THE MONEY, HE GAVE ME $28.00.  I ASKED HIM WHAT THE $5.00 WAS
FOR AND HE SAID IT WAS BECAUSE I HAD IT SO LONG.  I DID NOT SAY TO MR.
ZENO LET'S GO INTO THE KITCHEN.  NOTHING LIKE THAT.  I DID NOT HAVE ANY
TRANSACTION WITH HIM IN THE KITCHEN NOTHING EVEN LIKE THAT." 

FN4  IT IS DIFFICULT, HOWEVER, TO PERCEIVE HOW THE ADMISSION OF
EVIDENCE OF THE CONFESSION COULD BE CONSIDERED HARMLESS.  THE ONLY
OTHER EVIDENCE OF SUBSTANCE AGAINST THE PETITIONER WAS THAT GIVEN BY
ZENO, A TWICE CONVICTED FELON WHO TESTIFIED THAT HE WAS EAGER IN HIS
OWN SELF-INTEREST TO COOPERATE WITH THE POLICE BY "SETTING UP"
SOMEONE.  WHILE IT WAS UNDISPUTED THAT ZENO WAS IN POSSESSION OF THE
PACKAGE OF MARIJUANA WHEN HE EMERGED FROM THE PETITIONER'S APARTMENT,
IT WAS FAR FROM CLEAR THAT ZENO OBTAINED THE MARIJUANA FROM THE
PETITIONER.  ZENO WAS OUT OF THE POLICE OFFICERS' SIGHT FOR A PERIOD OF
FROM FIVE TO 20 MINUTES, AND THERE WERE OTHER APARTMENTS IN THE
BUILDING WHERE ZENO MIGHT HAVE OBTAINED THE PACKAGE. 
..END :













GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE 372 U.S. 539 


NO. 6.  ARGUED DECEMBER 5, 1961.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED OCTOBER 10-11, 1962.  - DECIDED
MARCH 25, 1963.  - 126 SO. 2D 129, REVERSED. 


IN A FLORIDA STATE COURT, PETITIONER, WHO WAS PRESIDENT OF THE MIAMI
BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE, WAS ADJUDGED IN CONTEMPT AND SENTENCED TO FINE AND IMPRISONMENT
FOR REFUSING TO DIVULGE CONTENTS OF THE MEMBERSHIP RECORDS OF THAT
BRANCH TO A COMMITTEE CREATED BY THE FLORIDA LEGISLATURE, WHICH WAS
INVESTIGATING THE INFILTRATION OF COMMUNISTS INTO VARIOUS
ORGANIZATIONS.  THERE WAS NO SUGGESTION THAT THE ASSOCIATION OR ITS
MIAMI BRANCH WAS SUBVERSIVE ORGANIZATION OR THAT EITHER WAS COMMUNIST
DOMINATED OR INFLUENCED.  THE PURPOSE OF THE QUESTIONS ASKED PETITIONER
WAS TO ASCERTAIN WHETHER 14 PERSONS PREVIOUSLY IDENTIFIED AS COMMUNISTS
OR MEMBERS OF COMMUNIST FRONT OR AFFILIATED ORGANIZATIONS WERE MEMBERS
OF THE MIAMI BRANCH OF THE ASSOCIATION.  THE PRINCIPAL EVIDENCE RELIED
UPON TO SHOW ANY RELATIONSHIP BETWEEN THE ASSOCIATION AND SUBVERSIVE OR
COMMUNIST ACTIVITIES WAS INDIRECT, AMBIGUOUS, AND MOSTLY HEARSAY
TESTIMONY BY TWO WITNESSES THAT, IN YEARS PAST, THOSE 14 PERSONS HAD
ATTENDED OCCASIONAL MEETINGS OF THE MIAMI BRANCH OF THE ASSOCIATION
"AND/OR" WERE MEMBERS OF THAT BRANCH, WHICH HAD ABOUT 1,000 MEMBERS. 
HELD:  ON THE RECORD IN THIS CASE, PETITIONER'S CONVICTION OF CONTEMPT
FOR REFUSAL TO DIVULGE INFORMATION CONTAINED IN THE MEMBERSHIP LISTS OF
THE ASSOCIATION VIOLATED RIGHTS OF ASSOCIATION PROTECTED BY THE FIRST
AND FOURTEENTH AMENDMENTS.  PP. 540-558. 

1.  WHEN, AS IN THIS CASE, THE CLAIM IS MADE THAT A LEGISLATIVE
INVESTIGATION INTRUDES UPON FIRST AND FOURTEENTH AMENDMENT
ASSOCIATIONAL RIGHTS OF INDIVIDUALS, THE STATE MUST SHOW CONVINCINGLY A
SUBSTANTIAL RELATION BETWEEN THE INFORMATION SOUGHT AND A SUBJECT OF
OVERRIDING AND COMPELLING STATE INTEREST.  PP. 543-546. 

2.  BARENBLATT V. UNITED STATES, 360 U.S. 109; WILKINSON V. UNITED
STATES, 365 U.S. 399; BRADEN V. UNITED STATES, 365 U.S. 431; AND UPHAUS
V. WYMAN, 360 U.S. 72, DISTINGUISHED.  PP.  547-550. 

3.  AN ADEQUATE FOUNDATION FOR INQUIRY MUST BE LAID BEFORE A
LEGISLATIVE INVESTIGATION PROCEEDS IN SUCH A MANNER AS WILL
SUBSTANTIALLY INTRUDE UPON AND SEVERELY CURTAIL OR INHIBIT
CONSTITUTIONALLY PROTECTED ASSOCIATIONAL RIGHTS, AND THE RECORD IN THIS
CASE IS NOT SUFFICIENT TO SHOW A SUBSTANTIAL CONNECTION BETWEEN THE
MIAMI BRANCH OF THE ASSOCIATION AND COMMUNIST ACTIVITIES, OR TO
DEMONSTRATE A COMPELLING AND SUBORDINATING STATE INTEREST NECESSARY TO
SUSTAIN THE STATE'S RIGHT TO INQUIRE INTO THE MEMBERSHIP LISTS OF THE
ASSOCIATION.  PP. 550-557. 

4.  GROUPS WHICH THEMSELVES ARE NEITHER ENGAGED IN SUBVERSIVE OR
OTHER ILLEGAL OR IMPROPER ACTIVITIES NOR DEMONSTRATED TO HAVE ANY
SUBSTANTIAL CONNECTIONS WITH SUCH ACTIVITIES MUST BE PROTECTED IN THEIR
RIGHTS OF FREE AND PRIVATE ASSOCIATION GUARANTEED BY THE FIRST AND
FOURTEENTH AMENDMENT.  PP. 557-558. 

GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS THE CULMINATION OF PROTRACTED LITIGATION INVOLVING
LEGISLATIVE INVESTIGATING COMMITTEES OF THE STATE OF FLORIDA AND THE
MIAMI BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE. 

THE ORIGINS OF THE CONTROVERSY DATE FROM 1956, WHEN A COMMITTEE OF
THE FLORIDA LEGISLATURE COMMENCED AN INVESTIGATION OF THE N.A.A.C.P.
UPON EXPIRATION OF THIS COMMITTEE'S AUTHORITY, A NEW COMMITTEE WAS
ESTABLISHED TO PURSUE THE INQUIRY.  THE NEW COMMITTEE, CREATED IN 1957,
HELD HEARINGS AND SOUGHT BY SUBPOENA TO OBTAIN THE ENTIRE MEMBERSHIP
LIST OF THE MIAMI BRANCH OF THE N.A.A.C.P.; PRODUCTION WAS REFUSED AND
THE COMMITTEE OBTAINED A COURT ORDER REQUIRING THAT THE LIST BE
SUBMITTED.  ON APPEAL, THE FLORIDA SUPREME COURT HELD THAT THE
COMMITTEE COULD NOT REQUIRE PRODUCTION AND DISCLOSURE OF THE ENTIRE
MEMBERSHIP LIST OF THE ORGANIZATION, BUT THAT IT COULD COMPEL THE
CUSTODIAN OF THE RECORDS TO BRING THEM TO THE HEARINGS AND TO REFER TO
THEM TO DETERMINE WHETHER SPECIFIC INDIVIDUALS, OTHERWISE IDENTIFIED
AS, OR "SUSPECTED OF BEING," COMMUNISTS, WERE N.A.A.C.P. MEMBERS.  108
SO. 2D 729, CERT. DENIED, 360 U.S. 919. 

BECAUSE OF THE IMPENDING EXPIRATION OF THE AUTHORITY OF THE 1957
COMMITTEE, THE FLORIDA LEGISLATURE IN 1959 ESTABLISHED THE RESPONDENT
LEGISLATIVE INVESTIGATION COMMITTEE TO RESUME THE INVESTIGATION OF THE
N.A.A.C.P.  THE AUTHORIZING STATUTE, C. 59-207, FLA. LAWS 1959,
DEFINING THE PURPOSE AND OPERATIONS OF THE RESPONDENT, DECLARED: 

"IT SHALL BE THE DUTY OF THE COMMITTEE TO MAKE AS COMPLETE AN
INVESTIGATION AS TIME PERMITS OF ALL ORGANIZATIONS WHOSE PRINCIPLES OR
ACTIVITIES INCLUDE A COURSE OF CONDUCT ON THE PART OF ANY PERSON OR
GROUP WHICH WOULD CONSTITUTE VIOLENCE, OR A VIOLATION OF THE LAWS OF
THE STATE, OR WOULD BE INIMICAL TO THE WELLBEING AND ORDERLY PURSUIT OF
THIER PERSONAL AND BUSINESS ACTIVITIES BY THE MAJORITY OF THE CITIZENS
OF THIS STATE  ...  ."  (FN1) 

THE PETITIONER, THEN PRESIDENT OF THE MIAMI BRANCH OF THE N.A.A.C.P.,
WAS ORDERED TO APPEAR BEFORE THE RESPONDENT COMMITTEE ON NOVEBMER 4,
1959, AND, IN ACCORDANCE WITH THE PRIOR DECISION OF THE FLORIDA SUPREME
COURT, TO BRING WITH HIM RECORDS OF THE ASSOCIATION WHICH WERE IN HIS
POSSESSION OR CUSTODY AND WHICH PERTAINED TO THE IDENTITY OF MEMBERS
OF, AND CONTRIBUTORS TO, THE MIAMI AND STATE N.A.A.C.P. ORGANIZATIONS. 
PRIOR TO INTERROGATION OF ANY WITNESSES THE COMMITTEE CHAIRMAN READ THE
TEXT OF THE STATUTE CREATING THE COMMITTEE AND DECLARED THAT THE
HEARINGS WOULD BE "CONCERNED WITH THE ACTIVITIES OF VARIOUS
ORGANIZATIONS WHICH HAVE BEEN OR ARE PRESENTLY OPERATING IN THIS STATE
IN THE FIELDS OF, FIRST, RACE RELATIONS; SECOND, THE COERCIVE REFORM OF
SOCIAL AND EDUCATIONAL PRACTICES AND MORES BY LITIGATION AND PRESSURED
ADMINISTRATIVE ACTION; THIRD, OF LABOR; FOURTH, OF EDUCATION; FIFTH,
AND OTHER VITAL PHASES OF LIFE IN THIS STATE."  THE CHAIRMAN ALSO
STATED THAT THE INQUIRY WOULD BE DIRECTED TO COMMUNISTS AND COMMUNIST
ACTIVITIES, INCLUDING INFILTRATION OF COMMUNISTS INTO ORGANIZATIONS
OPERATING IN THE DESCRIBED FIELDS. 

UPON BEING CALLED TO THE STAND, THE PETITIONER ADMITTED THAT HE WAS
CUSTODIAN OF HIS ORGANIZATION'S MEMBERSHIP RECORDS AND TESTIFIED THAT
THE LOCAL GROUP HAD ABOUT 1,000 MEMBERS, THAT INDIVIDUAL MEMBERSHIP WAS
RENEWED ANNUALLY, AND THAT THE ONLY MEMBERSHIP LISTS MAINTAINED WERE
THOSE FOR THE THEN CURRENT YEAR. 

THE PETITIONER TOLD THE COMMITTEE THAT HE HAD NOT BROUGHT THESE
RECORDS WITH HIM TO THE HEARING AND ANNOUNCED THAT HE WOULD NOT PRODUCE
THEM FOR THE PURPOSE OF ANSWERING QUESTIONS CONCERNING MEMBERSHIP IN
THE N.A.A.C.P.  HE DID, HOWEVER, VOLUNTEER TO ANSWER SUCH QUESTIONS ON
THE BASIS OF HIS OWN PERSONAL KNOWLEDGE; WHEN GIVEN THE NAMES AND SHOWN
PHOTOGRAPHS OF 14 PERSONS PREVIOUSLY IDENTIFIED AS COMMUNISTS OR
MEMBERS OF COMMUNIST FRONT OR AFFILIATED ORGANIZATIONS, THE PETITIONER
SAID THAT HE COULD ASSOCIATE NONE OF THEM WITH THE N.A.A.C.P. 

THE PETITIONER'S REFUSAL TO PRODUCE HIS ORGANIZATION'S MEMBERSHIP
LISTS WAS BASED ON THE GROUND THAT TO BRING THE LISTS TO THE HEARING
AND TO UTILIZE THEM AS THE BASIS OF HIS TESTIMONY WOULD INTERFERE WITH
THE FREE EXERCISE OF FOURTEENTH AMENDMENT ASSOCIATIONAL RIGHTS OF
MEMBERS AND PROSPECTIVE MEMBERS OF THE N.A.A.C.P. 

IN ACCORDANCE WITH FLORIDA PROCEDURE, THE PETITIONER WAS BROUGHT
BEFORE A STATE COURT AND, AFTER A HEARING, WAS ADJUDGED IN CONTEMPT,
AND SENTENCED TO SIX MONTHS' INPRISONMENT AND FINED $1,200, OR, IN
DEFAULT IN PAYMENT THEREOF, SENTENCED TO AN ADDITIONAL SIX MONTHS'
IMPRISONMENT.  THE FLORIDA SUPREME COURT SUSTAINED THE JUDGMENT BELOW,
126 SO. 2D 129, AND THIS COURT GRANTED CERTIORARI, 366 U.S. 917; THE
CASE WAS ARGUED LAST TERM AND RESTORED TO THE CALENDAR FOR REARGUMENT
THIS TERM, 369 U.S. 834. 

         I. 

WE ARE HERE CALLED UPON ONCE AGAIN TO RESOLVE A CONFLICT BETWEEN
INDIVIDUAL RIGHTS OF FREE SPEECH AND ASSOCIATION AND GOVERNMENTAL
INTEREST IN CONDUCTING LEGISLATIVE INVESTIGATIONS.  PRIOR DECISIONS
ILLUMINE THE CONTENDING PRINCIPLES. 

THIS COURT HAS REPEATEDLY HELD THAT RIGHTS OF ASSOCIATION ARE WITHIN
THE AMBIT OF THE CONSTITUTIONAL PROTECTIONS AFFORDED BY THE FIRST AND
FOURTEENTH AMENDMENTS.  NAACP V. ALABAMA, 357 U.S. 449; BATES V. LITTLE
ROCK, 361 U.S. 516; SHELTON V. TUCKER, 364 U.S. 479; NAACP V. BUTTON,
371 U.S. 415.  THE RESPONDENT COMMITTEE DOES NOT CONTEND OTHERWISE, NOR
COULD IT, FOR, AS WAS SAID IN NAACP V. ALABAMA, SUPRA, "IT IS BEYOND
DEBATE THAT FREEDOM TO ENGAGE IN ASSOCIATION FOR THE ADVANCEMENT OF
BELIEFS AND IDEAS IS AN INSEPARABLE ASPECT OF THE 'LIBERTY' ASSURED BY
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, WHICH EMBRACES
FREEDOM OF SPEECH."  357 U.S., AT 460.  AND IT IS EQUALLY CLEAR THAT
THE GUARANTEE ENCOMPASSES PROTECTION OF PRIVACY OF ASSOCIATION IN
ORGANIZATIONS SUCH AS THAT OF WHICH THE PETITIONER IS PRESIDENT;
INDEED, IN BOTH THE BATES AND ALABAMA CASES, SUPRA, THIS COURT HELD
N.A.A.C.P. MEMBERSHIP LISTS OF THE VERY TYPE HERE IN QUESTION TO BE
BEYOND THE STATES' POWER OF DISCOVERY IN THE CIRCUMSTANCES THERE
PRESENTED. 

THE FIRST AND FOURTEENTH AMENDMENT RIGHTS OF FREE SPEECH AND FREE
ASSOCIATION ARE FUNDAMENTAL AND HIGHLY PRIZED, AND "NEED BREATHING
SPACE TO SURVIVE."  NAACP V. BUTTON, 371 U.S. 415, 433.  "FREEDOMS SUCH
AS THESE ARE PROTECTED NOT ONLY AGAINST HEAVY-HANDED FRONTAL ATTACK,
BUT ALSO FROM BEING STIFLED BY MORE SUBTLE GOVERNMENTAL INFERENCE." 
BATES V. LITTLE ROCK, SUPRA, 361 U.S., AT 523.  AND, AS DECLARED IN
NAACP V. ALABAMA, SUPRA, 357 U.S., AT 462, "IT IS HARDLY A NOVEL
PERCEPTION THAT COMPELLED DISCLOSURE OF AFFILIATION WITH GROUPS ENGAGED
IN ADVOCACY MAY CONSTITUTE AN  ...  EFFECTIVE  ...  RESTRAINT ON
FREEDOM OF ASSOCIATION  ...  .  THIS COURT HAS RECOGNIZED THE VITAL
RELATIONSHIP BETWEEN FREEDOM TO ASSOCIATE AND PRIVACY IN ONE'S
ASSOCIATIONS  ...  . INVIOLABILITY OF PRIVACY IN GROUP ASSOCIATION MAY
IN MANY CIRCUMSTANCES BE INDISPENSABLE TO PRESERVATION OF FREEDOM OF
ASSOCIATION, PARTICULARLY WHERE A GROUP ESPOUSES DISSIDENT BELIEFS." 
SO IT IS HERE. 

AT THE SAME TIME, HOWEVER, THIS COURT'S PRIOR HOLDINGS DEMONSTRATE
THAT THERE CAN BE NO QUESTION THAT THE STATE HAS POWER ADEQUATELY TO
INFORM ITSELF - THROUGH LEGISLATIVE INVESTIGATION, IF IT SO DESIRES -
IN ORDER TO ACT AND PROTECT ITS LEGITIMATE AND VITAL INTERESTS.  AS
THIS COURT SAID IN CONSIDERING THE PROPRIETY OF THE CONGRESSIONAL
INQUIRY CHALLENGED IN WATKINS V. UNITED STATES, 354 U.S. 178:  "THE
POWER  ...  TO CONDUCT INVESTIGATIONS IS INHERENT IN THE LEGISLATIVE
PROCESS.  THAT POWER IS BROAD.  IT ENCOMPASSES INQUIRIES CONCERNING THE
ADMINISTRATION OF EXISTING LAWS AS WELL AS PROPOSED OR POSSIBLY NEEDED
STATUTES.  IT INCLUDES SURVEYS OF DEFECTS IN OUR SOCIAL, ECONOMIC OR
POLITICAL SYSTEM FOR THE PURPOSE OF ENABLING THE CONGRESS TO REMEDY
THEM."  354 U.S., AT 187.  AND, MORE RECENTLY, IT WAS DECLARED THAT
"THE SCOPE OF THE POWER OF INQUIRY, IN SHORT, IS AS PENETRATING AND FAR
REACHING AS THE POTENTIAL POWER TO ENACT AND APPROPRIATE UNDER THE
CONSTITUTION."  BARENBLATT V. UNITED STATES, 360 U.S. 109, 111.  IT IS
NO LESS OBVIOUS, HOWEVER, THAT THE LEGISLATIVE POWER TO INVESTIGATE,
BROAD AS IT MAY BE, IS NOT WITHOUT LIMIT.  THE FACT THAT THE GENERAL
SCOPE OF THE INQUIRY IS AUTHORIZED AND PERMISSIBLE DOES NOT COMPEL THE
CONCLUSION THAT THE INVESTIGATORY BODY IS FREE TO INQUIRE INTO OR
DEMAND ALL FORMS OF INFORMATION.  VALIDATION OF THE BROAD SUBJECT
MATTER UNDER INVESTIGATION DOES NOT NECESSARILY CARRY WITH IT AUTOMATIC
AND WHOLESALE VALIDATION OF ALL INDIVIDUAL QUESTIONS, SUBPOENAS, AND
DOCUMENTARY DEMANDS.  SEE, E.G., WATKINS V. UNITED STATES, SUPRA, 354
U.S., AT 197-199.  SEE ALSO BARENBLATT V. UNITED STATES, SUPRA, 360
U.S., AT 127-130.  WHEN, AS IN THIS CASE, THE CLAIM IS MADE THAT
PARTICULAR LEGISLATIVE INQUIRIES AND DEMANDS INFRINGE SUBSTANTIALLY
UPON FIRST AND FOURTEENTH AMENDMENT ASSOCIATIONAL RIGHTS OF
INDIVIDUALS, THE COURTS ARE CALLED UPON TO, AND MUST, DETERMINE THE
PERMISSIBILITY OF THE CHALLENGED ACTIONS, WATKINS V. UNITED STATES,
SUPRA, 354 U.S., AT 198-199; "THE DELICATE AND DIFFICULT TASK FALLS
UPON THE COURTS TO WEIGH THE CIRCUMSTANCES AND TO APPRAISE THE
SUBSTANTIALITY OF THE REASONS ADVANCED IN SUPPORT OF THE REGULATION OF
THE FREE ENJOYMENT OF THE RIGHTS," SCHNEIDER V. STATE, 308 U.S. 147,
161.  THE INTERESTS HERE AT STAKE ARE OF SIGNIFICANT MAGNITUDE, AND
NEITHER THEIR RESOLUTION NOR IMPACT IS LIMITED TO, OR DEPENDENT UPON,
THE PARTICULAR PARTIES HERE INVOLVED.  FREEDOM AND VIABLE GOVERNMENT
ARE BOTH, FOR THIS PURPOSE, INDIVISIBLE CONCEPTS; WHATEVER AFFECTS THE
RIGHTS OF THE PARTIES HERE, AFFECTS ALL. 

                                       II. 

SIGNIFICANTLY, THE PARTIES ARE IN SUBSTANTIAL AGREEMENT AS TO THE
PROPER TEST TO BE APPLIED TO RECONCILE THE COMPETING CLAIMS OF
GOVERNMENT AND INDIVIDUAL AND TO DETERMINE THE PROPRIETY OF THE
COMMITTEE'S DEMANDS.  AS DECLARED BY THE RESPONDENT COMMITEEE IN ITS
BRIEF TO THIS COURT, "BASICALLY, THIS CASE HINGES ENTIRELY ON THE
QUESTION OF WHETHER THE EVIDENCE BEFORE THE COMMITEEE (WAS)  ...
SUFFICIENT TO SHOW PROBABLE CAUSE OR NEXUS BETWEEN THE N.A.A.C.P. MIAMI
BRANCH, AND COMMUNIST ACTIVITIES."  WE UNDERSTAND THIS TO MEAN -
REGARDLESS OF THE LABEL APPLIED, BE IT "NEXUS," "FOUNDATION," OR
WHATEVER - THAT IT IS AN ESSENTIAL PREREQUISITE TO THE VALIDITY OF AN
INVESTIGATION WHICH INTRUDES INTO THE AREA OF CONSTITUTIONALLY
PROTECTED RIGHTS OF SPEECH, PRESS, ASSOCIATION AND PETITION THAT THE
STATE CONVINCINGLY SHOW A SUBSTANTIAL RELATION BETWEEN THE INFORMATION
SOUGHT AND A SUBJECT OF OVERRIDING AND COMPELLING STATE INTEREST. 
ABSENT SUCH A RELATION BETWEEN THE N.A.A.C.P. AND CONDUCT IN WHICH THE
STATE MAY HAVE A COMPELLING REGULATORY CONCERN, THE COMMITTEE HAS NOT
"DEMONSTRATED SO COGENT AN INTEREST IN OBTAINING AND MAKING PUBLIC" THE
MEMBERSHIP INFORMATION SOUGHT TO BE OBTAINED AS TO "JUSTIFY THE
SUBSTANTIAL ABRIDGEMENT OF ASSOCIATIONAL FREEDOM WHICH SUCH DISCLOSURES
WILL EFFECT."  BATES V. LITTLE ROCK, SUPRA, 361 U.S., AT 524.  "WHERE
THERE IS A SIGNIFICANT ENCROACHMENT UPON PERSONAL LIBERTY, THE STATE
MAY PREVAIL ONLY UPON SHOWING A SUBORDINATING INTEREST WHICH IS
COMPELLING."  IBID. 

APPLYING THESE PRINCIPLES TO THE FACTS OF THIS CASE, THE RESPONDENT
COMMITTEE CONTENDS THAT THE PRIOR DECISIONS OF THIS COURT IN UPHAUS V.
WYMAN, 360 U.S. 72; BARENBLATT V. UNITED STATES, 360 U.S. 109;
WILKINSON V. UNITED STATES, 365 U.S. 399; AND BRADEN V. UNITED STATES,
365 U.S. 431, COMPEL A RESULT HERE UPHOLDING THE LEGISLATIVE RIGHT OF
INQUIRY.  IN BARENBLATT, WILKINSON, AND BRADEN, HOWEVER, IT WAS A
REFUSAL TO ANSWER A QUESTION OR QUESTIONS CONCERNING THE WITNESS' OWN
PAST OR PRESENT MEMBERSHIP IN THE COMMUNIST PARTY WHICH SUPPORTED HIS
CONVICTION.  IT IS APPARENT THAT THE NECESSARY PREPONDERATING
GOVERNMENTAL INTEREST AND, IN FACT, THE VERY RESULT IN THOSE CASES WERE
FOUNDED ON THE HOLDING THAT THE COMMUNIST PARTY IS NOT AN ORDINARY OR
LEGITIMATE POLITICAL PARTY, AS KNOWN IN THIS COUNTRY, AND THAT, BECAUSE
OF ITS PARTICULAR NATURE, MEMBERSHIP THEREIN IS ITSELF A PERMISSIBLE
SUBJECT OF REGULATION AND LEGISLATIVE SCRUTINY.  (FN2)  ASSUMING THE
CORRECTNESS OF THE PREMISES ON WHICH THOSE CASES WERE DECIDED, NO
FURTHER DEMONSTRATION OF COMPELLING GOVERNMENTAL INTEREST WAS DEEMED
NECESSARY, SINCE THE DIRECT OBJECT OF THE CHALLENGED QUESTIONS THERE
WAS DISCOVERY OF MEMBERSHIP IN THE COMMUNIST PARTY, A MATTER HELD
PERTINENT TO A PROPER SUBJECT THEN UNDER INQUIRY. 

HERE, HOWEVER, IT IS NOT ALLEGED COMMUNISTS WHO ARE THE WITNESSES
BEFORE THE COMMITTEE AND IT IS NOT DISCOVERY OF THEIR MEMBERSHIP IN
THAT PARTY WHICH IS THE OBJECT OF THE CHALLENGED INQUIRIES.  RATHER, IT
IS THE N.A.A.C.P. ITSELF WHICH IS THE SUBJECT OF THE INVESTIGATION, AND
IT IS ITS LOCAL PRESIDENT, THE PETITIONER, WHO WAS CALLED BEFORE THE
COMMITTEE AND HELD IN CONTEMPT BECAUSE HE REFUSED TO DIVULGE THE
CONTENTS OF ITS MEMBERSHIP RECORDS.  THERE IS NO SUGGESTION THAT THE
MIAMI BRANCH OF THE N.A.A.C.P.  OR THE NATIONAL ORGANIZATION WITH WHICH
IT IS AFFILIATED WAS, OR IS, ITSELF A SUBVERSIVE ORGANIZATION.  NOR IS
THERE ANY INDICATION THAT THE ACTIVITIES OR POLICIES OF THE N.A.A.C.P.
WERE EITHER COMMUNIST DOMINATED OR INFLUENCED.  IN FACT, THIS VERY
RECORD INDICATES THAT THE ASSOCIATION WAS AND IS AGAINST COMMUNISM AND
HAS VOLUNTARILY TAKEN STEPS TO KEEP COMMUNISTS FROM BEING MEMBERS. 
EACH YEAR SINCE 1950, THE N.A.A.C.P.  HAS ADOPTED RESOLUTIONS BARRING
COMMUNISTS FROM MEMBERSHIP IN THE ORGANIZATION.  MOREOVER, THE
PETITIONER TESTIFIED THAT ALL PROSPECTIVE OFFICERS OF THE LOCAL
ORGANIZATION ARE THOROUGHLY INVESTIGATED FOR COMMUNIST OR SUBVERSIVE
CONNECTIONS AND, THOUGH SUBVERSIVE ACTIVITIES CONSTITUTE GROUNDS FOR
TERMINATION OF ASSOCIATION MEMBERSHIP, NO SUCH EXPULSIONS FROM THE
BRANCH OCCURRED DURING THE FIVE YEARS PRECEDING THE INVESTIGATION. 

THUS, UNLIKE THE SITUATION IN BARENBLATT, WILKINSON AND BRADEN,
SUPRA, THE COMMITTEE WAS NOT HERE SEEKING FROM THE PETITIONER OR THE
RECORDS OF WHICH HE WAS CUSTODIAN ANY INFORMATION AS TO WHETHER HE,
HIMSELF, OR EVEN OTHER PERSONS WERE MEMBERS OF THE COMMUNIST PARTY,
COMMUNIST FRONT OR AFFILIATED ORGANIZATIONS, OR OTHER ALLEGEDLY
SUBVERSIVE GROUPS; INSTEAD, THE ENTIRE THRUST OF THE DEMANDS ON THE
PETITIONER WAS THAT HE DISCLOSE WHETHER OTHER PERSONS WERE MEMBERS OF
THE N.A.A.C.P., ITSELF A CONCEDEDLY LEGITIMATE AND NONSUBVERSIVE
ORGANIZATION.  (FN3)  COMPELLING SUCH AN ORGANIZATION, ENGAGED IN THE
EXERCISE OF FIRST AND FOURTEENTH AMENDMENT RIGHTS, TO DISCLOSE ITS
MEMBERSHIP PRESENTS, UNDER OUR CASES, A QUESTION WHOLLY DIFFERENT FROM
COMPELLING THE COMMUNIST PARTY TO DISCLOSE ITS OWN MEMBERSHIP. 
MOREOVER, EVEN TO SAY, AS IN BARENBLATT, SUPRA, 360 U.S., AT 129, THAT
IT IS PERMISSIBLE TO INQUIRE INTO THE SUBJECT OF COMMUNIST INFILTRATION
OF EDUCATIONAL OR OTHER ORGANIZATIONS DOES NOT MEAN THAT IT IS
PERMISSIBLE TO DEMAND OR REQUIRE FROM SUCH OTHER GROUPS DISCLOSURE OF
THEIR MEMBERSHIP BY INQUIRY INTO THEIR RECORDS WHEN SUCH DISCLOSURE
WILL SERIOUSLY INHIBIT OR IMPAIR THE EXERCISE OF CONSTITUTIONAL RIGHTS
AND HAS NOT ITSELF BEEN DEMONSTRATED TO BEAR A CRUCIAL RELATION TO A
PROPER GOVERNMENTAL INTEREST OR TO BE ESSENTIAL TO FULFILLMENT OF A
PROPER GOVERNMENTAL PURPOSE.  THE PRIOR HOLDINGS THAT GOVERNMENTAL
INTEREST IN CONTROLLING SUBVERSION AND THE PARTICULAR CHARACTER OF THE
COMMUNIST PARTY AND ITS OBJECTIVES OUTWEIGH THE RIGHT OF INDIVIDUAL
COMMUNISTS TO CONCEAL PARTY MEMBERSHIP OR AFFILIATIONS BY NO MEANS
REQUIRE THE WHOLLY DIFFERENT CONCLUSION THAT OTHER GROUPS - CONCEDEDLY
LEGITIMATE - AUTOMATICALLY FORFEIT THEIR RIGHTS TO PRIVACY OF
ASSOCIATION SIMPLY BECAUSE THE GENERAL SUBJECT MATTER OF THE
LEGISLATIVE INQUIRY IS COMMUNIST SUBVERSION OR INFILTRATION.  THE FACT
THAT GOVERNMENTAL INTEREST WAS DEEMED COMPELLING IN BARENBLATT,
WILKINSON, AND BRADEN AND HELD TO SUPPORT THE INQUIRIES THERE MADE INTO
MEMBERSHIP IN THE COMMUNIST PARTY DOES NOT RESOLVE THE ISSUES HERE,
WHERE THE CHALLENGED QUESTIONS GO TO MEMBERSHIP IN AN ADMITTEDLY LAWFUL
ORGANIZATION. 

RESPONDENT'S RELIANCE ON UPHAUS V. WYMAN, SUPRA, AS CONTROLLING IS
SIMILARLY MISPLACED.  THERE, THIS COURT UPHELD THE RIGHT OF THE STATE
OF NEW HAMPSHIRE, IN CONNECTION WITH AN INVESTIGATION OF WHETHER
"SUBVERSIVE" PERSONS WERE WITHIN THE STATE, TO OBTAIN A LIST OF GUESTS
WHO ATTENDED A WORLD FELLOWSHIP SUMMER CAMP LOCATED IN THE STATE.  IN
UPHAUS THIS COURT FOUND THAT THERE WAS DEMONSTRATED A SUFFICIENT
CONNECTION BETWEEN SUBVERSIVE ACTIVITY - HELD THERE TO BE A PROPER
SUBJECT OF GOVERNMENTAL CONCERN - AND THE WORLD FELLOWSHIP, ITSELF, TO
JUSTIFY DISCOVERY OF THE GUEST LIST; NO SEMBLANCE OF SUCH A NEXUS
BETWEEN THE N.A.A.C.P.  AND SUBVERSIVE ACTIVITIES HAS BEEN SHOWN HERE. 
SEE III, INFRA.  MOREOVER, CONTRARY TO THE FACTS IN THIS CASE, THE
CLAIM TO ASSOCIATIONAL PRIVACY IN UPHAUS WAS HELD TO BE "TENUOUS AT
BEST," 360 U.S., AT 80, SINCE THE DISPUTED LIST WAS ALREADY A MATTER OF
PUBLIC RECORD BY VIRTUE OF A GENERALLY APPLICABLE NEW HAMPSHIRE LAW
REQUIRING THAT PLACES OF ACCOMMODATION, INCLUDING THE CAMP IN QUESTION,
MAINTAIN A GUEST REGISTER OPEN TO PUBLIC AUTHORITIES.  THUS, THIS COURT
NOTED THAT THE REGISTRATION STATUTE "MADE PUBLIC AT THE INCEPTION THE
ASSOCIATION THEY (THE GUESTS) NOW WISH TO KEEP PRIVATE."  360 U.S., AT
81.  FINALLY, IN UPHAUS, THE STATE WAS INVESTIGATING WHETHER SUBVERSIVE
PERSONS WERE WITHIN ITS BOUNDARIES AND WHETHER THEIR PRESENCE
CONSTITUTED A THREAT TO THE STATE.  NO SUCH PURPOSE OR NEED IS EVIDENT
HERE.  THE FLORIDA COMMITTEE IS NOT SEEKING TO IDENTIFY SUBVERSIVES BY
QUESTIONING THE PETITIONER; APPARENTLY IT IS SATISFIED THAT IT ALREADY
KNOWS WHO THEY ARE. 

                                      III. 

IN THE ABSENCE OF DIRECTLY DETERMINATIVE AUTHORITY, WE TURN, THEN, TO
CONSIDERATION OF THE FACTS NOW BEFORE US.  OBVIOUSLY, IF THE RESPONDENT
WERE STILL SEEKING DISCOVERY OF THE ENTIRE MEMBERSHIP LISTS, WE COULD
READILY DISPOSE OF THIS CASE ON THE AUTHORITY OF BATES V. LITTLE ROCK,
AND NAACP V. ALABAMA, SUPRA; A LIKE RESULT WOULD FOLLOW IF IT WERE
MERELY ATTEMPTING TO DO PIECEMEAL WHAT COULD NOT BE DONE IN A SINGLE
STEP.  THOUGH THERE ARE INDICATIONS THAT THE RESPONDENT COMMITTEE
INTENDED TO INQUIRE BROADLY INTO THE N.A.A.C.P. MEMBERSHIP RECORDS,
(FN4) THERE IS NO NEED TO BASE OUR DECISION TODAY UPON A PREDICTION AS
TO THE COURSE WHICH THE COMMITTEE MIGHT HAVE PURSUED IF INITIALLY
UNOPPOSED BY THE PETITIONER.  INSTEAD, WE REST OUR RESULT ON THE FACT
THAT THE RECORD IN THIS CASE IS INSUFFICIENT TO SHOW A SUBSTANTIAL
CONNECTION BETWEEN THE MIAMI BRANCH OF THE N.A.A.C.P. AND COMMUNIST
ACTIVITIES WHICH THE RESPONDENT COMMITTEE ITSELF CONCEDES IS AN
ESSENTIAL PREREQUISITE TO DEMONSTRATING THE IMMEDIATE, SUBSTANTIAL, AND
SUBORDINATING STATE INTEREST NECESSARY TO SUSTAIN ITS RIGHT OF INQUIRY
INTO THE MEMBERSHIP LISTS OF THE ASSOCIATION. 

BASICALLY, THE EVIDENCE RELIED UPON BY THE RESPONDENT TO DEMONSTRATE
THE NECESSARY FOUNDATION CONSISTS OF THE TESTIMONY OF R.J. STRICKLAND,
AN INVESTIGATOR FOR THE COMMITTEE AND ITS PREDECESSORS, AND ARLINGTON
SANDS, A FORMER ASSOCIATION OFFICIAL. 

STRICKLAND IDENTIFIED BY NAME SOME 14 PERSONS WHOM HE SAID EITHER
WERE OR HAD BEEN COMMUNISTS OR MEMBERS OF COMMUNIST "FRONT" OR
"AFFILIATED" ORGANIZATIONS.  HIS DESCRIPTION OF THEIR CONNECTION WITH
THE ASSOCIATION WAS SIMPLY THAT "EACH OF THEM HAS BEEN A MEMBER OF
AND/OR PARTICIPATED IN THE MEETINGS AND OTHER AFFAIRS OF THE N.A.A.C.P.
IN DADE COUNTY, FLORIDA."  IN ADDITION, ONE OF THE GROUP WAS IDENTIFIED
AS HAVING MADE, AT AN UNSPECIFIED TIME, A CONTRIBUTION OF UNSPECIFIED
AMOUNT TO THE LOCAL ORGANIZATION.  (FN5) 

WE DO NOT KNOW FROM THIS AMBIGUOUS TESTIMONY HOW MANY OF THE 14 WERE
SUPPOSED TO HAVE BEEN N.A.A.C.P. MEMBERS.  FOR ALL THAT APPEARS, AND
THERE IS NO INDICATED REASON TO ENTERTAIN A CONTRARY BELIEF, EACH OR
ALL OF THE NAMED PERSONS MAY HAVE ATTENDED NO MORE THAN ONE OR TWO
WHOLLY PUBLIC MEETINGS OF THE N.A.A.C.P., AND SUCH ATTENDANCE, LIKE
THEIR MEMBERSHIP, TO THE EXTENT IT EXISTED, IN THE ASSOCIATION, MAY
HAVE BEEN WHOLLY PERIPHERAL AND BEGUN AND ENDED MANY YEARS PRIOR EVEN
TO COMMENCEMENT OF THE PRESENT INVESTIGATION IN 1956.  IN ADDITION, IT
IS NOT CLEAR WHETHER THE ASSERTED COMMUNIST AFFILIATIONS AND THE
ASSOCIATION WITH THE N.A.A.C.P., HOWEVER SLIGHT, COINCIDED IN TIME. 
MOREOVER, EXCEPT FOR PASSING REFERENCE TO PARTICIPATION IN ANNUAL
ELECTIONS, THERE IS NO INDICATION THAT MEMBERSHIP CARRIED WITH IT ANY
RIGHT TO CONTROL OVER POLICY OR ACTIVITIES, MUCH LESS THAT ANY WAS
SOUGHT.  THE REASONING WHICH WOULD FIND SUPPORT FOR THE CHALLENGED
INQUIRIES IN COMMUNIST ATTENDANCE AT MEETINGS FROM WHICH NO MEMBER OF
THE PUBLIC APPEARS TO HAVE BEEN BARRED IS EVEN MORE ATTENUATED, SINCE
THE ONLY PREROGATIVE SEEMINGLY ATTACHING TO SUCH ATTENDANCE WAS THE
RIGHT TO LISTEN TO THE SCHEDULED SPEAKER OR PROGRAM.  MERE PRESENCE AT
A PUBLIC MEETING OR BARE MEMBERSHIP - WITHOUT MORE - IS NOT
INFILTRATION OF THE SPONSORING ORGANIZATION. 

IT ALSO APPEARS THAT A NUMBER OF THE 14 PERSONS NAMED BY STRICKLAND
WERE NO LONGER EVEN RESIDENTS OF FLORIDA' AS TO THESE PEOPLE, IT IS
DIFFICULT TO SEE ANY BASIS FOR SUPPOSING THAT THEY WOULD BE CURRENT -
MUCH LESS INFLUENTIAL - MEMBERS OF THE MIAMI BRANCH OF THE N.A.A.C.P.,
AND NO OTHER PERTINENT REASON FOR THE INQUIRY AS TO THEM COULD BE FOUND
BECAUSE, AS THE PETITIONER TESTIFIED, THE ONLY MEMBERSHIP RECORDS
AVAILABLE RELATED TO THE THEN CURRENT YEAR. 

STRICKLAND DID REFER TO ONE INFORMANT AS HAVING BEEN INSTRUCTED TO
INFILTRATE THE N.A.A.C.P. AND "OTHER ORGANIZATIONS."  BUT ANY
PERSUASIVE IMPACT THIS RECITATION MIGHT OTHERWISE HAVE HAD IS
NEUTRALIZED BY THE SAME INFORMAN'TS DISCLOSURE THAT HIS RESPONSE TO
THIS COMMAND WAS SIMPLY TO ATTEND N.A.A.C.P. MEETINGS "ON OCCASIONS"
AND BY THE ABSENCE OF ANY OTHER SUBSTANTIAL INDICATION OF
INFILTRATION.  THIS IS NOT A CASE IN WHICH, AFTER A PROPER FOUNDATION
HAS BEEN LAID, A COMMUNIST IS HIMSELF INTERROGATED ABOUT HIS OWN
ALLEGED SUBVERSIVE ACTIVITIES OR THOSE OF THE COMMUNIST PARTY, ALL AS
PART OF AN INQUIRY RELATED TO WHAT THIS COURT HAS HELD TO BE A
LEGITIMATE LEGISLATIVE PURPOSE TO INVESTIGATE THE ACTIVITIES OF THE
PARTY OR ITS KNOWING MEMBERS. 

THE TESTIMONY OF SANDS, THE OTHER ASSERTEDLY IMPORTANT WITNESS, ADDED
NOT EVEN A SEMBLANCE OF ANYTHING MORE CONVINCING WITH REGARD TO THE
EXISTENCE OF A CONNECTION BETWEEN SUBVERSION AND THE N.A.A.C.P.  SANDS,
WHO OFFICERSHIP IN THE ASSOCIATION PREDATED 1950 AND WHO ADMITTED THAT
HE WAS UNCERTAIN EVEN AS TO HIS THEN CURRENT MEMBERSHIP IN THE
N.A.A.C.P., MERELY CORROBORATED TO SOME EXTENT CERTAIN OF STRICKLAND'S
REFERENCES TO ATTENDANCE AT N.A.A.C.P. MEETINGS BY A FEW OF THE PERSONS
IDENTIFIED AS COMMUNISTS.  HOWEVER, THIS TOO MUST HAVE RELATED TO SOME
TIME IN THE UNSPECIFIED PAST, SINCE SANDS ADMITTED THAT HE HAD NOT EVEN
BEEN TO AN N.A.A.C.P. MEETING IN TWO YEARS.  SANDS ALSO NOTED THAT ONE
OF THE ASSERTED COMMUNISTS, A LAWYER, HAD REPRESENTED THE ASSOCIATION
IN A "MURDER CASE," BUT THERE IS NO EXPLANATION AS TO HOW THIS FACT
MIGHT INDICATE OR SUPPORT A CONCLUSION OF COMMUNIST INFLUENCE. 

NOR DOES THE FACT THAT THE N.A.A.C.P. HAS DEMONSTRATED ITS ANTIPATHY
TO COMMUNISM AND AN AWARENESS OF ITS THREAT BY PASSAGE OF ANNUAL
ANTISUBVERSION RESOLUTIONS CARRY WITH IT ANY PERMISSIBLE INFERENCE THAT
IT HAS, IN FACT, BEEN INFILTRATED, INFLUENCED, OR IN ANY WAS DOMINATED
OR USED BY COMMUNISTS.  INDEED, GIVEN THE GROSS IMPROBABILITY OF A
COMMUNIST DOMINATED OR INFLUENCED ORGANIZATION DENOUNCING COMMUNISM,
THE MORE REASONABLE INFERENCE WOULD SEEM TO BE TO THE CONTRARY. 

FINALLY, THE COMMITTEE CAN FIND NO SUPPORT FOR ITS INQUIRY INTO THE
MEMBERSHIP LIST FROM STRICKLAND'S SUGGESTION THAT SANDS HAD ONCE
UNCERTAINLY TOLD HIM (STRICKLAND) THAT ONE OR POSSIBLY TWO OF THE GROUP
OF 14 MAY HAVE "MADE A TALK" TO THE LOCAL N.A.A.C.P.  CHAPTER, AGAIN AT
SOME UNSPECIFIED TIME IN THE PAST.  THERE IS NO INDICATION THAT THE
SUBJECT OF THE "TALKS" WAS IN ANY WAY IMPROPER AND, IN ANY EVENT, SUCH
ISOLATED INCIDENTS CANNOT BE MADE TO DO THE WORK OF SUBSTANTIAL
EVIDENCE OF SUBVERSIVE INFLUENCE OR INFILTRATION.  THE SAME IS TRUE OF
THE FEW ADDITIONAL VAGUE AND SOMEWHAT UNSPECIFIC REFERENCES TO OTHER
MINOR AND NONDIRECTIVE PARTICIPATION IN THE AFFAIRS OF THE LOCAL
GROUP.  (FN6) 

THIS SUMMARY OF THE EVIDENCE DISCLOSES THE UTTER FAILURE TO
DEMONSTRATE THE EXISTENCE OF ANY SUBSTANTIAL RELATIONSHIP BWETEEN THE
N.A.A.C.P. AND SUBVERSIVE OR COMMUNIST ACTIVITIES.  IN ESSENCE, THERE
IS HERE MERELY INDIRECT, LESS THAN UNEQUIVOCAL, AND MOSTLY HEARSAY
TESTIMONY THAT IN YEARS PAST SOME 14 PEOPLE WHO WERE ASSERTED TO BE, OR
TO HAVE BEEN, COMMUNISTS OR MEMBERS OF COMMUNIST FRONT OR "AFFILIATED
ORGANIZATIONS" ATTENDED OCCASIONAL MEETINGS OF THE MIAMI BRANCH OF THE
N.A.A.C.P. "AND/OR" WERE MEMBERS OF THAT BRANCH, WHICH HAD A TOTAL
MEMBERSHIP OF ABOUT 1,000. 

ON THE OTHER HAND, THERE WAS NO CLAIM MADE AT THE HEARINGS, OR SINCE,
THAT THE N.A.A.C P. OR ITS MIAMI BRANCH WAS ENGAGED IN ANY SUBVERSIVE
ACTIVITIES OR THAT ITS LEGITIMATE ACTIVITIES HAVE BEEN DOMINATED OR
INFLUENCED BY COMMUNISTS.  WITHOUT ANY INDICATION OF PRESENT SUBVERSIVE
INFILTRATION IN, OR INFLUENCE ON, THE MIAMI BRANCH OF THE N.A.A.C.P.,
AND WITHOUT ANY REASONABLE, DEMONSTRATED FACTUAL BASIS TO BELIEVE THAT
SUCH INFILTRATION OR INFLUENCE EXISTED IN THE PAST, OR WAS ACTIVELY
ATTEMPTED OR SOUGHT IN THE PRESENT - IN SHORT WITHOUT ANY SHOWING OF A
MEANINGFUL REALTIONSHIP BETWEEN THE N.A.A.C.P., MIAMI BRANCH, AND
SUBVERSIVES OR SUBVERSIVE OR OTHER ILLEGAL ACTIVITIES - WE ARE ASKED TO
FIND THE COMPELLING AND SUBORDINATING STATE INTEREST WHICH MUST EXIST
IF ESSENTIAL FREEDOMS ARE TO BE CURTAILED OR INHIBITED.  THIS WE CANNOT
DO.  THE RESPONDENT COMMITTEE HAS LAID NO ADEQUATE FOUNDATION FOR ITS
DIRECT DEMANDS UPON THE OFFICERS AND RECORDS OF A WHOLLY LEGITIMATE
ORGANIZATION FOR DISCLOSURE OF ITS MEMBERSHIP; THE COMMITTEE HAS
NEITHER DEMONSTRATED NOR POINTED OUT ANY THREAT TO THE STATE BY VIRTUE
OF THE EXISTENCE OF THE N.A.A.C.P. OR THE PURSUIT OF ITS ACTIVITIES OR
THE MINIMAL ASSOCIATIONAL TIES OF THE 14 ASSERTED COMMUNISTS.  THE
STRONG ASSOCIATIONAL INTEREST IN MAINTAINING THE PRIVACY OF MEMBERSHIP
LISTS OF GROUPS ENGAGED IN THE CONSTITUTIONALLY PROTECTED FREE TRADE IN
IDEAS AND BELIEFS MAY NOT BE SUBSTANTIALLY INFRINGED UPON SUCH A
SLENDER SHOWING AS HERE MADE BY THE RESPONDENT.  (FN7)  WHILE, OF
COURSE, ALL LEGITIMATE ORGANIZATIONS ARE THE BENEFICIARIES OF THESE
PROTECTIONS, THEY ARE ALL THE MORE ESSENTIAL HERE, WHERE THE CHALLENGED
PRIVACY IS THAT OF PERSONS ESPOUSING BELIEFS ALREADY UNPOPULAR WITH
THEIR NEIGHBORS AND THE DETERRENT AND "CHILLING" EFFECT ON THE FREE
EXERCISE OF CONSTITUTIONALLY ENSHRINED RIGHTS OF FREE SPEECH,
EXPRESSION, AND ASSOCIATION IS CONSEQUENTLY THE MORE IMMEDIATE AND
SUBSTANTIAL.  WHAT WE RECENTLY SAID IN NAACP V. BUTTON, SUPRA, WITH
RESPECT TO THE STATE OF VIRGINIA IS, AS APPEARS FROM THE RECORD,
EQUALLY APPLICABLE HERE:  "WE CANNOT CLOSE OUR EYES TO THE FACT THAT
THE MILITANT NEGRO CIVIL RIGHTS MOVEMENT HAS ENGENDERED THE INTENSE
RESENTMENT AND OPPOSITION OF THE POLITICALLY DOMINANT WHITE COMMUNITY
...  ."  371 U.S., AT 435.    OF COURSE, A LEGISLATIVE INVESTIGATION -
AS ANY INVESTIGATION - MUST PROCEED "STEP BY STEP," BARENBLATT V.
UNITED STATES, SUPRA, 360 U.S., AT 130, BUT STEP BY STEP OR IN
TOTALITY, AN ADEQUATE FOUNDATION FOR INQUIRY MUST BE LAID BEFORE
PROCEEDING IN SUCH A MANNER AS WILL SUBSTANTIALLY INTRUDE UPON AND
SEVERELY CURTAIL OR INHIBIT CONSTITUTIONALLY PROTECTED ACTIVITIES OR
SERIOUSLY INTERFERE WITH SIMILARLY PROTECTED ASSOCIATIONAL RIGHTS.  NO
SUCH FOUNDATION HAS BEEN LAID HERE.  THE RESPONDENT COMMITTEE HAS
FAILED TO DEMONSTRATE THE COMPELLING AND SUBORDINATING GOVERNMENTAL
INTEREST ESSENTIAL TO SUPPORT DIRECT INQUIRY INTO THE MEMBERSHIP
RECORDS OF THE N.A.A.C.P. 

NOTHING WE SAY HERE IMPAIRS OR DENIES THE EXISTENCE OF THE UNDERLYING
LEGISLATIVE RIGHT TO INVESTIGATE OR LEGISLATE WITH RESPECT TO
SUBVERSIVE ACTIVITIES BY COMMUNISTS OR ANYONE ELSE; OUR DECISION TODAY
DEALS ONLY WITH THE MANNER IN WHICH SUCH POWER MAY BE EXERCISED AND WE
HOLD SIMPLY THAT GROUPS WHICH THEMSELVES ARE NEITHER ENGAGED IN
SUBVERSIVE OR OTHER ILLEGAL OR IMPROPER ACTIVITIES NOR DEMONSTRATED TO
HAVE ANY SUBSTANTIAL CONNECTIONS WITH SUCH ACTIVITIES ARE TO BE
PROTECTED IN THEIR RIGHTS OF FREE AND PRIVATE ASSOCIATION.  AS DECLARED
IN SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 245 (OPINION OF THE CHIEF
JUSTICE), "IT IS PARTICULARLY IMPORTANT THAT THE EXERCISE OF THE POWER
OF COMPULSORY PROCESS BE CAREFULLY CIRCUMSCRIBED WHEN THE INVESTIGATIVE
PROCESS TENDS TO IMPINGE UPON SUCH HIGHLY SENSITIVE AREAS AS FREEDOM OF
SPEECH OR PRESS, FREEDOM OF POLITICAL ASSOCIATION, AND FREEDOM OF
COMMUNICATION OF IDEAS  ...  ." 

TO PERMIT LEGISLATIVE INQUIRY TO PROCEED ON LESS THAN AN ADEQUATE
FOUNDATION WOULD BE TO SANCTION UNJUSTIFIED AND UNWARRANTED INTRUSIONS
INTO THE VERY HEART OF THE CONSTITUTIONAL PRIVILEGE TO BE SECURE IN
ASSOCIATIONS IN LEGITIMATE ORGANIZATIONS ENGAGED IN THE EXERCISE OF
FIRST AND FOURTEENTH AMENDMENT RIGHTS; TO IMPOSE A LESSER STANDARD THAN
WE HERE DO WOULD BE INCONSISTENT WITH THE MAINTENANCE OF THOSE
ESSENTIAL CONDITIONS BASIC TO THE PRESERVATION OF OUR DEMOCRACY. 

THE JUDGMENT BELOW MUST BE AND IS REVERSED. 

FN1  THE PREFATORY PORTIONS OF THE STATUTE NOTED THE EXISTENCE OF THE
PREDECESSOR COMMITTEES, RECITED THAT THE 1957 COMMITTEE HAD "BEEN
PREVENTED" FROM CONDUCTING ITS INVESTIGATIONS BY "THE DELIBERATE AND
ALMOST UNANIMOUS ACTION OF THE WITNESSES BEFORE IT IN RESORTING TO
LITIGATION TO FRUSTRATE SAID COMMITTEE'S INVESTIGATIONS" AND ASSERTED
THAT AS A RESULT THE COMMITTEE WAS "MIRED DOWN" IN NUMEROUS LAWSUITS;
THE COMMITTEES' RECORDS AND REPORTS WERE SAID TO DISCLOSE "A GREAT
ABUSE OF THE JUDICIAL PROCESSES," AS WELL AS VIOLENT OR ILLEGAL
CONDUCT, OR THE THREAT THEREOF, AND COMMUNIST ATTEMPTS TO "AGITATE AND
ENGENDER ILL-WILL BETWEEN THE RACES."  THE ENACTMENT CONCLUDED THAT
"THERE STILL EXISTS THE SAME GRAVE AND PRESSING NEED FOR SUCH A
COMMITTEE TO EXIST  ...  TO CONTINUE AND COMPLETE THE ABOVE TWO
COMMITTEES' WORK, AND TO PARTICIPATE IN AND CONTEST THE EFFORTS
REPRESENTED BY THE ABOVE REFERRED TO LITIGATION TO WHITTLE AWAY FURTHER
AT THIS STATE'S RIGHTS AND SOVEREIGNTY, AND TO BE EVER READY TO
INVESTIGATE ANY AGITATOR WHO MAY APPEAR IN FLORIDA IN THE INTERIM
(BETWEEN LEGISLATIVE SESSIONS)." 

FN2  SEE, E.G., BARENBLATT V. UNITED STATES, 360 U.S. 109, 127-128. 
THUS, THIS COURT "HAS UPHELD FEDERAL LEGISLATION AIMED AT THE COMMUNIST
PROBLEM WHICH IN A DIFFERENT CONTEXT WOULD CERTAINLY HAVE RAISED
CONSTITUTIONAL ISSUES OF THE GRAVEST CHARACTER."  ID., AT 128.  SEE
ALSO COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S.
1, 88-105. 

FN3  THE FLORIDA SUPREME COURT, IN A COMPANION CASE, GRAHAM V.
FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE, 126 SO. 2D 133, 136,
CHARACTERIZED THE N.A.A.C.P. AS "AN ORGANIZATION PERFECTLY LEGITIMATE
BUT ALLEGEDLY UNPOPULAR IN THE COMMUNITY."  INTERESTINGLY, IN GRAHAM,
WHICH AROSE OUT OF THE VERY SAME HEARINGS HELD ON THE SAME DAYS AS HERE
INVOLVED, THE FLORIDA COURT, APPARENTLY ON THE SAME RECORD WE NOW HAVE
BEFORE US, UPHELD THE FOURTEENTH AMENDMENT CLAIMS OF A WITNESS, NOT
HIMSELF ASSERTED TO HAVE SUBVERSIVE CONNECTIONS, WHO REFUSED TO ANSWER
QUESTIONS GOING TO HIS OWN MEMBERSHIP IN THE N.A.A.C.P.  THE COURT
THERE TOOK NOTICE OF THE "CONSIDERABLE" EVIDENCE OF POSSIBLE OR
PROBABLE REPRISALS AND DETERRENT EFFECT ON THE N.A.A.C.P.  RESULTING
FROM INVOLUNTARY DISCLOSURE OF AFFILIATION WITH THE ORGANIZATION.  ID.,
AT 134-135. 

FN4  INTERROGATION WAS NOT TO BE CONFINED SIMPLY TO ASCERTAINING
WHETHER OR NOT THE 14 PERSONS, FIRST NAMED BY STRICKLAND, THE COMMITTEE
INVESTIGATOR, WERE MEMBERS OF THE N.A.A.C.P.  STRICKLAND HAD NAMED 38
OTHER PERSONS ABOUT WHOM INQUIRY WAS TO BE MADE, AND, EVEN MORE
SIGNIFICANTLY, THE COMMITTEE COUNSEL DECLARED THAT HE HAD "A LOT OF
OTHER PEOPLE" HE WANTED TO ASK ABOUT. 

FN5  IT IS APPARENT THAT NO IMPETUS TO RELEVANT LEGISLATIVE INTEREST
OR NEED CAN BE GARNERED FROM STRICKLAND'S ADDITIONAL IDENTIFICATION OR
A GROUP OF 33 ALLEGED COMMUNISTS OR FIVE MORE ASSERTED CARD-CARRYING
PARTY MEMBERS SINCE THESE INDIVIDUALS WERE IN NO WAY EVIDENTIALLY
CONNECTED WITH THE N.A.A.C.P., LOCALLY OR NATIONALLY.  WERE IT
OTHERWISE, THE MERE DEMONSTRATION OF THE EXISTENCE OF LOCAL AND EXTANT
COMMUNISTS WOULD ALWAYS SUPPORT A DEMAND FOR MEMBERSHIP LISTS OF ANY
ORGANIZATION WHICH MIGHT BE THOUGHT TO BE AN OBJECT OF INFILTRATION,
AND THE CONSTITUTIONAL GUARANTEES OF PRIVACY OF ASSOCIATION AND
ASSEMBLY WOULD BECOME MEANINGLESS. 

FN6  FOR EXAMPLE, ON RETAKING THE STAND, STRICKLAND SAID THAT SANDS
HAD TOLD HIM THAT ONE OF THE 14 HAD BEEN A MEMBER OF THE N.A.A.C.P.
PRIOR TO 1950 AND THAT ANOTHER HAD "DELIVERED" N.A.A.C.P. "LEAFLETS";
THERE WAS ALSO SEPARATE TESTIMONY THAT ANOTHER WAS BELIEVED TO HAVE
BEEN AN N.A.A.C.P. MEMBER "AT ONE TIME."  THESE STATEMENTS AND
SCATTERED ALLUSIONS TO A FEW OF THE 14 "POSSIBLY" HAVING BEEN "SEEN" AT
N.A.A.C.P. PUBLIC MEETINGS OBVIOUSLY CANNOT SUPPORT INFRINGEMENT OF
CONSTITUTIONAL RIGHTS. 

FN7  THERE IS HERE EVEN LESS OF A CONNECTION WITH SUBVERSIVE
ACTIVITIES THAN WAS SHOWN IN SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, IN
WHICH, ON GROUNDS NOT HERE RELEVANT, THE CHIEF JUSTICE, WRITING FOR
FOUR MEMBERS OF THE COURT, DEEMED THE INQUIRY IMPROPER.  THERE THE
STATE ATTORNEY GENERAL, AS PART OF AN INVESTIGATION OF SUBVERSIVE
ACTIVITIES, SOUGHT TO QUESTION A WITNESS WHO, THOUGH HE DENIED THAT HE
HIMSELF WAS A COMMUNIST, HAD "A RECORD OF AFFILIATION WITH GROUPS CITED
BY THE ATTORNEY GENERAL OF THE UNITED STATES OR THE HOUSE UN-AMERICAN
ACTIVITIES COMMITTEE," 354 U.S., AT 255, 261 (CONCURRING OPINION).  THE
CONTESTED QUESTIONS RELATED, INTER ALIA, TO THE ACTIVITIES OF THIRD
PERSONS IN THE PROGRESSIVE PARTY AND "CONSIDERABLE SWORN TESTIMONY
(HAD)  ...  BEEN GIVEN IN (THE)  ...  INVESTIGATION TO THE EFFECT THAT
THE PROGRESSIVE PARTY IN NEW HAMPSHIRE (HAD)  ...  BEEN HEAVILY
INFILTRATED BY MEMBERS OF THE COMMUNIST PARTY AND THAT THE POLICIES AND
PURPOSES OF THE PROGRESSIVE PARTY HAVE BEEN DIRECTLY INFLUENCED BY
MEMBERS OF THE COMMUNIST PARTY."  ID., AT 265 (QUOTING FROM STATE COURT
OPINION).  THE CONCURRING OPINION OF MR. JUSTICE FRANKFURTER, IN WHICH
MR. JUSTICE HARLAN JOINED, DECLARED WITH RESPECT TO THIS SUPPORTING
DEMONSTRATION THAT "THE INVIOLABILITY OF PRIVACY BELONGING TO A
CITIZEN'S POLITICAL LOYALTIES HAS SO OVERWHELMING AN IMPORTANCE TO THE
WELL-BEING OF OUR KIND OF SOCIETY THAT IT CANNOT BE CONSTITUTIONALLY
ENCROACHED UPON THE BASIS OF SO MEAGRE A COUNTERVAILING INTEREST OF THE
STATE AS MAY BE ARGUMENTATIVELY FOUND IN THE REMOTE, SHADOWY THREAT TO
THE SECURITY OF NEW HAMPSHIRE ALLEGEDLY PRESENTED IN THE ORIGINS AND
CONTRIBUTING ELEMENTS OF THE PROGRESSIVE PARTY AND IN PETITIONER'S
RELATIONS TO THESE."  IBID. THE CONCURRING OPINION CONCLUDED THAT
"WHATEVER, ON THE BASIS OF MASSIVE PROOF AND IN THE LIGHT OF HISTORY,
OF WHICH THIS COURT MAY WELL TAKE JUDICIAL NOTICE, BE THE JUSTIFICATION
FOR NOT REGARDING THE COMMUNIST PARTY AS A CONVENTIONAL POLITICAL
PARTY, NO SUCH JUSTIFICATION HAS BEEN AFFORDED IN REGARD TO THE
PROGRESSIVE PARTY.  A FOUNDATION IN FACT AND REASON WOULD HAVE TO BE
ESTABLISHED FAR WEIGHTIER THAN THE INTIMATIONS THAT APPEAR IN THE
RECORD TO WARRANT SUCH A VIEW OF THE PROGRESSIVE PARTY.  THE PRECLUDES
THE QUESTIONING THAT PETITIONER RESISTED IN REGARD TO THAT PARTY." 
ID., AT 266.  PRECISELY THE SAME REASONING APPLIES HERE.  WHILE IN
SWEEZY IT DID NOT CLEARLY APPEAR THAT THE PERSONS ABOUT WHOM INQUIRY
WAS MADE WERE THEMSELVES ASSERTED TO HAVE COMMUNIST ASSOCIATIONS, THE
INTEREST IN POLITICAL AND ASSOCIATIONAL PRIVACY WAS NO STRONGER THERE
THAN HERE; IF ANYTHING, THE FACT THAT THE LEGITIMATE ORGANIZATION
ITSELF - RATHER THAN A WITNESS SUSPECTED OF SUBVERSIVE TIES - IS HERE
PUT TO QUESTIONING THROUGH ITS PRESIDENT AND THAT IT IS ITS OWN
MEMBERSHIP RECORDS WHICH ARE THE OBJECTS OF SCRUTINY MAKES THE CLAIMED
RIGHT WORTHY OF MORE - NOT LESS - PROTECTION. 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN THE COURT'S OPINION AND JUDGMENT REVERSING THE JUDGMENT
OF THE SUPREME COURT OF FLORIDA ALTHOUGH, FOR SUBSTANTIALLY THE SAME
REASONS STATED BY MR. JUSTICE DOUGLAS IN HIS CONCURRING OPINION, I
WOULD PREFER TO REACH OUR DECISION BY A DIFFERENT APPROACH.  I AGREE
WITH MR. JUSTICE DOUGLAS THAT THE FOURTEENTH AMENDMENT MAKES THE FIRST
AMENDMENT APPLICABLE TO THE STATES AND PROTECTS THE FREEDOMS OF
RELIGION, SPEECH, PRESS, ASSEMBLY, AND PETITION FROM STATE ABRIDGMENT
WITH THE SAME FORCE AND TO THE SAME DEGREE THAT THE FIRST AMENDMENT
PROTECTS THEM FROM FEDERAL ABRIDGEMENT.  THAT, AS THE CASES CITED BY
MR. JUSTICE DOUGLAS SHOW, IS WHAT THIS COURT HAS PREVIOUSLY HELD.  I
AGREE ALSO THAT THESE AMENDMENTS ENCOMPASS FREEDOM OF THE PEOPLE TO
ASSOCIATE IN AN INFINITE NUMBER OF ORGANIZATIONS INCLUDING THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, OF WHICH PETITIONER
HERE WAS PRESIDENT AT THE TIME IT WAS UNDER INVESTIGATION BY THE
FLORIDA COMMITTEE.  IN MY VIEW THE CONSTITUTIONAL RIGHT OF ASSOCIATION
INCLUDES THE PRIVILEGE OF ANY PERSON TO ASSOCIATE WITH COMMUNISTS OR
ANTI-COMMUNISTS, SOCIALISTS OR ANTI-SOCIALISTS, OR, FOR THAT MATTER,
WITH PEOPLE OF ALL KINDS OF BELIEFS, POLULAR OR UNPOPULAR.  I HAVE
EXPRESSED THESE VIEWS IN MANY OTHER CASES AND I ADHERE TO THEM NOW.*
SINCE, AS I BELIEVE, THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE AND ITS MEMBERS HAVE A CONSTITUTIONAL RIGHT TO CHOOSE
THEIR OWN ASSOCIATES, I CANNOT UNDERSTAND BY WHAT CONSTITUTIONAL
AUTHORITY FLORIDA CAN COMPEL ANSWERS TO QUESTIONS WHICH ABRIDGE THAT
RIGHT.  ACCORDINGLY, I WOULD REVERSE HERE ON THE GROUND THAT THERE HAS
BEEN A DIRECT ABRIDGMENT OF THE RIGHT OF ASSOCIATION OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE AND ITS MEMBERS. 
BUT, SINCE THE COURT ASSUMES FOR PURPOSES OF THIS CASE THAT THERE WAS
NO DIRECT ABRIDGMENT OF FIRST AMENDMENT FREEDOMS, I CONCUR IN THE
COURT'S OPINION, WHICH IS BASED ON CONSTITUTIONAL PRINCIPLES LAID DOWN
IN SCHNEIDER V. IRVINGTON, 308 U.S. 147, 161 (1939), AND LATER CASE OF
THIS COURT FOLLOWING SCHNEIDER. 

*E.G., AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 445
(1950); DENNIS V. UNITED STATES, 341 U.S. 494, 579 (1951); BARENBLATT
V. UNITED STATES, 360 U.S. 109, 134 (1959); COMMUNIST PARTY V.
SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1, 137, 147 (1961). 

MR. JUSTICE DOUGLAS, CONCURRING. 

I JOIN THE OPINION OF THE COURT, BECAUSE IT IS CAREFULLY WRITTEN
WITHIN THE FRAMEWORK OF OUR CURRENT DECISIONS.  BUT SINCE THE MATTERS
INVOLVED TOUCH CONSTITUTIONAL RIGHTS AND SINCE I SEE THE CONSTITUTION
IN SOMEWHAT DIFFERENT DIMENSIONS THAN ARE REFLECTED IN OUR DECISIONS,
IT SEEMS APPROPRIATE TO SET OUT MY VIEWS. 

WE DEAL HERE WITH THE AUTHORITY OF A STATE TO INVESTIGATE PEOPLE,
THEIR IDEAS, THEIR ACTIVITIES.  BY VIRTUE OF THE FOURTEENTH AMENDMENT
(FN1) THE STATE IS NOW SUBJECT TO THE SAME RESTRICTIONS (FN2) IN MAKING
THE INVESTIGATION AS THE FIRST AMENDMENT PLACES ON THE FEDERAL
GOVERNMENT. 

THE NEED OF A REFEREE IN OUR FEDERAL SYSTEM HAS INCREASED WITH THE
PASSAGE OF TIME, NOT ONLY IN MATTERS OF COMMERCE BUT IN THE FIELD OF
CIVIL RIGHTS AS WELL.  TODAY REVIEW OF BOTH FEDERAL AND STATE ACTION
THREATENING INDIVIDUALS' RIGHTS IS INCREASINGLY IMPORTANT IF THE FREE
SOCIETY ENVISIONED BY THE BILL OR RIGHTS IS TO BE OUR IDEAL.  FOR IN
TIMES OF CRISIS, WHEN IDEOLOGIES CLASH, IT IS NOT EASY TO ENGENDER
RESPECT FOR THE DIGNITY OF SUSPECT MINORITIES AND FOR DEBATE OF
UNPOPULAR ISSUES.  AS THE PRESIDENT OF YALE UNIVERSITY HAS STATED: 

"WE HAVE BECOME TOO MUCH A NATION OF LOOKERS AND LISTENERS, A NATION
OF SPECTATORS.  AMIDST THE EASY ARTIFICIALITY OF OUR LIFE, THE PLETHORA
OF SUBSTITUTES FOR LEARNING AND THINKING, THE INNUMERABLE DEVICES FOR
AVOIDING OR DELEGATING PERSONAL RESPONSIBILITY FOR OUR OPINIONS, EVEN
FOR HAVING ANY OPINIONS, THE FINE EDGE OF OUR FAITH HAS BEEN DULLED,
OUR CREATIVE POWER ATROPHIED."  A. WHITNEY GRISWOLD, BACCALAUREAT
ADDRESS, YALE UNIVERSITY, JUNE 8, 1958 (OVERBROOK PRESS).  (FN3) 

WHEN THE STATE OR FEDERAL GOVERNMENT IS PROHIBITED FROM DEALING WITH
A SUBJECT, IT HAS NO CONSTITUTIONAL PRIVILEGE TO INVESTIGATE IT.  AN
INVESTIGATION TO PERMIT A LEGISLATURE PROPERLY TO PERFORM ITS POWERS OF
INTERNAL MANAGEMENT IS OF COURSE ALLOWED.  SEE BARRY V. CUNNINGHAM, 279
U.S. 597, 613.  BUT OTHERWISE THE POWER TO INVESTIGATE IS ONLY AN
ADJUNCT OF THE POWER TO LEGISLATE - AN AUXILIARY POWER "NECESSARY AND
APPROPRIATE TO THAT END."  MCGRAIN V. DAUGHERTY, 273 U.S. 135, 175. 
INVESTIGATION TO DETERMINE HOW CONSTITUTIONAL LAWS ARE BEING
ADMINISTERED MARKS ONE LIMITATION.  THE OTHER IS AN INVESTIGATION TO
DETERMINE WHAT CONSTITUTIONAL LAWS SHOULD BE PASSED.  WHEN THE
CONSTITUTIONAL LIMITS OF LAWMAKING ARE PASSED, INVESTIGATION IS OUT OF
BOUNDS, APART FROM THE EXCEPTION NOTED.  SEE KILBOURN V. THOMPSON, 103
U.S. 168, 194-200; MCGRAIN V. DAUGHERTY, SUPRA, 171-175.  THAT IS TO
SAY, INVESTIGATIONS BY LEGISLATIVE COMMITTEE WHICH "COULD RESULT IN NO
VALID LEGISLATION ON THE SUBJECT" ARE BEYOND THE PALE.  KILBOURN V.
THOMPSON, SUPRA, P. 195.  FOR IT MISSES THE WHOLE POINT OF OUR
CONSTITUTIONAL HISTORY TO ASSUME THAT "GOVERNMENT," OR ANY BRANCH OF
GOVERNMENT, SOMEHOW HAS RIGHTS AND POWERS OF ITS OWN APART FROM THOSE
NECESSARILY ATTENDING THE PROPER PERFORMANCE OF ITS CONSTITUTIONAL
FUNCTIONS.    JOINING A LAWFUL ORGANIZATION, LIKE ATTENDING A CHURCH,
IS AN ASSOCIATIONAL ACTIVITY THAT COMES WITHIN THE PURVIEW OF THE FIRST
AMENDMENT, WHICH PROVIDES IN RELEVANT PART:  "CONGRESS SHALL MAKE NO
LAW  ...  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."  "PEACEABLY TO ASSEMBLE" AS
USED IN THE FIRST AMENDMENT NECESSARILY INVOLVES A COMING TOGETHER,
WHETHER REGULARLY OR SPASMODICALLY.  HISTORICALLY THE RIGHT TO ASSEMBLE
WAS SECONDARY TO THE RIGHT OF PETITION, THE LATTER BEING THE PRIMARY
RIGHT.  (FN4)  BUT TODAY, AS THE COURT STATED IN DE JONGE V OREGON, 299
U.S. 353, 364, "THE RIGHT OF PEACEABLE ASSEMBLY IS A RIGHT COGNATE TO
THOSE OF FREE SPEECH AND FREE PRESS AND IS EQUALLY FUNDAMENTAL." 
ASSEMBLY, LIKE SPEECH, IS INDEED ESSENTIAL "IN ORDER TO MAINTAIN THE
OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE END THAT GOVERNMENT
MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND THAT CHANGES, IF
DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS."  ID., P. 365.  "THE
HOLDING OF MEETINGS FOR PEACEABLE POLITICAL ACTION CANNOT BE
PROSCRIBED."  IBID.  A FREE SOCIETY IS MADE UP OF ALMOST INNUMERABLE
INSTITUTIONS THROUGH WHICH VIEWS AND OPINIONS ARE EXPRESSED, OPINION IS
MOBILIZED, AND SOCIAL, ECONOMIC, RELIGIOUS, EDUCATIONAL, AND POLITICAL
PROGRAMS ARE FORMULATED.  (FN5) 

JOINING GROUPS SEEMS TO BE A PASSION WITH AMERICANS. 

SCHLESINGER, THE RISE OF THE CITY (1933), REVIEWS THE ZEAL WITH WHICH
AMERICANS IN THE LAST CENTURY BECAME THE WORLD'S GREATEST "JOINERS": 

"NOW AMERICANS TURNED WITH FURIOUS ZEAL TO THE CREATION OF SECRET
SOCIETIES CUT TO THEIR OWN PATTERN.  IN THE LARGE CITIES SOME FORM OF
ORGANIZED SOCIAL COMMINGLING SEEMED CALLED FOR TO REPLACE THE
SPONTANEOUS FRIENDLINESS OF SMALL RURAL TOWNS.  LIBERTY AND EQUALITY
THIS GENERATION WAS WILLING TO TAKE FOR GRANTED, BUT FRATERNITY FILLED
A COMPELLING HUMAN NEED.  MOREOVER, THE ROMANTIC OPPORTUNITY TO POSTURE
BEFORE A MYSTIC BROTHERHOOD IN ALL THE GLORY OF ROBE, PLUME AND SWORD
RESTORED A SENSE OF SELF-IMPORTANCE BRUISED BY THE ANONYMITY OF LIFE
ADMIST GREAT CROWDS.  IF FURTHER INDUCEMENT WERE NEEDED, IT WAS
SUPPLIED BY THE PROVISION MADE BY MOST LODGES FOR SICKNESS AND DEATH
BENEFITS FOR THEIR MEMBERS. 

     *         *     *         *         * 

"AS WAS TO BE EXPECTED, MEMBERSHIP WAS GREATEST IN THE URBANIZED
NEGROES OF THE SOUTH APED THEIR WHITE BRETHREN AND THE INCREASING
INTEREST OF WESTERN FARMERS IN LODGE ACTIVITIES.  BY THE END OF THE
PERIOD THERE WERE OVER SIX MILLION NAMES ON THE ROSTERS OF FRATERNAL
BODIES.  AMERICA POSSESSED MORE SECRET SOCIETIES AND A LARGER NUMBER OF
'JOINERS' THAN ALL OTHER NATIONS."  ID., PP. 288-290. 

"IT IS NOT SURPRISING, THEREFORE, TO FIND THAT AT LEAST FIVE THOUSAND
NATIONAL ASSOCIATIONS EXIST IN THE UNITED STATES."  ROBISON, PROTECTION
OF ASSOCIATIONS FROM COMPULSORY DISCLOSURE OF MEMBERSHIP, 58 COL. L.
REV. 614, 622. 

A COMING TOGETHER IS OFTEN NECESSARY FOR COMMUNICATION - FOR THOSE
WHO LISTEN AS WELL AS FOR THOSE WHO SPEAK.  DEMOSTHENES, IT IS SAID,
WENT TO THE SEASHORE AND DECLAIMED THE THE WAVES IN ORDER TO CORRECT A
STAMMER.  BUT NORMALLY A SPEAKER IMPLIES AN AUDIENCE.  JOINING A GROUP
IS OFTEN AS VITAL TO FREEDOM OF EXPRESSION AS UTTERANCE ITSELF. 
REGISTERING AS A STUDENT IN A SCHOOL OR JOINING A FACULTY IS AS VITAL
TO FREEDOM OF EXPRESSION AS JOINING A CHURCH IS TO THE FREE EXERCISE OF
RELIGION.  JOINING A POLITICAL PARTY MAY BE AS CRITICAL TO EXPRESSION
OF ONE'S VIEWS AS HIRING REPORTERS IS TO THE ESTABLISHMENT OF A FREE
PRESS.  SOME HAVE THOUGHT THAT POLITICAL AND ACADEMIC AFFILIATIONS HAVE
PREFERRED POSITION UNDER THE DUE PROCESS VERSION OF THE FIRST
AMENDMENT.  SEE SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 261-267
(CONCURRING OPINION).  BUT THE ASSOCIATIONAL RIGHTS PROTECTED BY THE
FIRST AMENDMENT ARE IN MY VIEW MUCH BROADER AND COVER THE ENTIRE
SPECTRUM IN POLITICAL IDEOLOGY AS WELL AS IN ART, IN JOURNALISM, IN
TEACHING, AND IN RELIGION. 

IN MY VIEW, GOVERNMENT IS NOT ONLY POWERLESS TO LEGISLATE WITH
RESPECT TO MEMBERSHIP IN A LAWFUL ORGANIZATION; IT IS ALSO PRECLUDED
FROM PROBING THE INTIMACIES OF SPIRITUAL AND INTELLECTUAL RELATIONSHIPS
IN THE MYRIAD OF SUCH SOCIETIES AND GROUPS THAT EXIST IN THIS COUNTRY,
REGARDLESS OF THE LEGISLATIVE PURPOSE SOUGHT TO BE SERVED.  "THE
PROVISIONS OF THE FIRST AMENDMENT  ...  OF COURSE REACH AND LIMIT  ...
INVESTIGATIONS."  BARENBLATT V. UNITED STATES, 360 U.S. 109, 126.  IF
THAT IS NOT TRUE, I SEE NO BARRIER TO INVESTIGATION OF NEWSPAPERS,
CHURCHES, POLITICAL PARTIES, CLUBS, SOCIETIES, UNIONS, AND ANY OTHER
ASSOCIATION FOR THEIR POLITICAL, ECONOMIC, SOCIAL, PHILOSOPHICAL, OR
RELIGIOUS VIEWS.  IF, IN ITS QUEST TO DETERMINE WHETHER EXISTING LAWS
ARE BEING ENFORCED OR NEW LAWS ARE NEEDED, AN INVESTIGATING COMMITTEE
CAN ASCERTAIN WHETHER KNOWN COMMUNISTS OR CRIMINALS ARE MEMBERS OF AN
ORGANIZATION NOT SHOWN TO BE ENGAGED IN CONDUCT PROPERLY SUBJECT TO
REGULATION, IT IS BUT A SHORT AND INEXORABLE STEP TO THE CONCLUSION
THAT IT MAY ALSO PROBE TO ASCERTAIN WHAT EFFECT THEY HAVE HAD ON THE
OTHER MEMBERS.  FOR HOW MUCH MORE "NECESSARY AND APPROPRIATE" THIS
INFORMATION IS TO THE LEGISLATIVE PURPOSE BEING PURSUED] 

IT IS NO ANSWER TO THE CONCLUSION THAT ALL SUCH INVESTIGATIONS ARE
ILLEGAL TO SUGGEST THAT THE COMMITTEE IS PURSUING A LAWFUL OBJECTIVE IN
THE MANNER IT HAS DETERMINED MOST APPROPRIATE.  FOR, AS LAURENT FRANTZ,
THE FIRST AMENDMENT IN THE BALANCE, 71 YALE L.J.  1424, 1441, HAS SO
PERSUASIVELY SHOWN, "IT DOES NOT FOLLOW THAT ANY OBJECTIVE CAN EVER BE
WEIGHED AGAINST AN EXPRESS LIMITATION ON THE MEANS AVAILABLE FOR ITS
PURSUIT.  THE PUBLIC INTEREST IN THE SUPPRESSION OF CRIME, FOR EXAMPLE,
CANNOT BE WEIGHED AGAINST A CONSTITUTIONAL PROVISION THAT ACCUSED
PERSONS MAY NOT BE DENIED THE RIGHT TO COUNSEL."  WHEN OTHERWISE VALID
LEGISLATION IS SOUGHT TO BE APPLIED IN AN UNCONSTITUTIONAL MANNER WE DO
NOT SUSTAIN ITS APPLICATION.  SEE, E.G., YICK WO V. HOPKINS, 118 U.S.
356.  A DIFFERENT TEST SHOULD NOT OBTAIN FOR LEGISLATIVE
INVESTIGATIONS.  "ANY CONSTITUTIONAL LIMITATION SERVES A SIGNIFICANT
FUNCTION ONLY INSOFAR AS IT STANDS IN THE WAY OF SOMETHING WHICH
GOVERNMENT THINKS OUGHT TO BE DONE.  NOTHING ELSE NEEDS TO BE
PROHIBITED."  (FN6)  FRANTZ, SUPRA, AT 1445. 

FOR SOME OF US A PHASE OF THE PROBLEM EMERGED IN UNITED STATES V.
RUMLEY, 345 U.S. 41, 57-58 (CONCURRING OPINION), WHERE SEVERAL PROBLEMS
WERE POSED.  CAN THE GOVERNMENT DEMAND OF A PUBLISHER THE NAMES OF THE
PURCHASERS OF HIS PUBLICATIONS?  WOULD NOT THE SPECTRE OF A GOVERNMENT
AGENT THEN LOOK OVER THE SHOULDER OF EVERYONE WHO READS?  MIGHT NOT THE
PURCHASE OF A BOOK OR PAMPHLET TODAY RESULT IN A SUBPOENA TOMORROW? 
WOULD NOT THE FEAR OF CRITICISM GO WITH EVERY PERSON INTO THE
BOOKSTALL?  IF THE LIGHT OF PUBLICITY MAY REACH ANY STUDENT, ANY
TEACHER, WOULD NOT FREE INQUIRY BE DISCOURAGED?  FOR ARE THERE NOT
ALWAYS BOOKS AND PAMPHLETS THAT ARE CRITICAL OF THE ADMINISTRATION OR
THAT PREACH AN UNPOPULAR POLICY IN DOMESTIC OR FOREIGN AFFAIRS OR THAT
ARE IN DISREPUTE IN THE ORTHODOX SCHOOL OF THOUGHT?  IF THE PRESS AND
ITS READERS WERE SUBJECT TO THE HARASSMENT OF HEARINGS, INVESTIGATIONS,
REPORTS, AND SUBPOENAS, GOVERNMENT WOULD INDEED HOLD A CLUB OVER SPEECH
AND OVER THE PRESS.  RECOGNITION OF THESE DANGERS PROMPTED OUR DECISION
IN TALLEY V. CALIFORNIA, 362 U.S. 60, HOLDING UNCONSTITUTIONAL AN
ORDINANCE REQUIRING HANDBILLS TO DISCLOSE THE NAME AND ADDRESS OF THE
DISTRIBUTOR OR PRINTER.  PLAINLY A LEGISLATIVE COMMITTEE COULD NOT HAVE
OBTAINED THE SAME INFORMATION FROM THE PETITIONER IN THAT CASE MERELY
BECAUSE IT WAS SEEKING TO DETERMINE WHETHER COMMUNISTS WERE BEHIND THE
DISTRIBUTION AS PART OF A MASSIVE PROPAGANDA CAMPAIGN. 

THE PROBLEM WAS EXPOSED AGAIN IN RUSSELL V. UNITED STATES, 369 U.S.
749, WHERE THE PRESS WAS BEING INVESTIGATED.  WHAT I SAID THERE SEEMS
GERMANE HERE.  SINCE WHAT AN EDITOR WRITES OR THINKS IS NONE OF THE
GOVERNMENT'S BUSINESS - EXCEPT, OF COURSE, THAT CONGRESS COULD PUNISH
THE BREACH OF A CAREFULLY DRAWN SECURITY LAW; SEE NEAR V. MINNESOTA,
283 U.S. 697, 715-716 - IT HAS NO POWER TO INVESTIGATE THE CAPACITIES,
IDEOLOGY, PREJUDICES, OR POLITICS OF THOSE WHO WRITE THE NEWS. 

"IT IS SAID THAT CONGRESS HAS THE POWER TO DETERMINE THE EXTENT OF
COMMUNIST INFILTRATION SO THAT IT CAN KNOW HOW MUCH TIGHTER THE
'SECURITY' LAWS SHOULD BE MADE.  THIS PROVES TOO MUCH.  IT WOULD GIVE
CONGRESS A ROVING POWER TO INQUIRE INTO FIELDS IN WHICH IT COULD NOT
LEGISLATE.  IF CONGRESS CAN INVESTIGATE THE PRESS TO FIND OUT IF
COMMUNISTS HAVE INFILTRATED IT, IT COULD ALSO INVESTIGATE THE CHURCHES
FOR THE SAME REASON.  ARE THE PULPITS BEING USED TO PROMOTE THE
COMMUNIST CAUSE?  WERE ANY OF THE CLERGY EVER MEMBERS OF THE COMMUNIST
PARTY?  HOW ABOUT THE GOVERNING BOARD?  HOW ABOUT THOSE WHO ASSIST THE
PASTOR AND PERHAPS HELD PREPARE HIS SERMONS OR DO THE RESEARCH?  WHO
COMES TO THE CONFESSION AND DISCLOSES THAT HE OR SHE ONCE WAS A
COMMUNIST?"  369 U.S., AT 777. 

BRYANT V. ZIMMERMAN, 278 U.S. 63, 72, HELD THAT THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT PREVENT A STATE FROM
COMPELLING A DISCLOSURE OF THE MEMBERSHIP LISTS OF THE KU KLUX KLAN. 
THAT DECISION WAS MADE IN 1928 AND IT IS UNNECESSARY TO DECIDE NOW
WHETHER ITS VITALITY HAS SURVIVED SUCH CASES AS NAACP V. ALABAMA, 357
U.S. 449; BATES V. LITTLE ROCK, 361 U.S. 516; AND LOUISIANA V. NAACP,
366 U.S. 293, FOR WE DISTINGUISHED THAT CASE IN NAACP V. ALABAMA,
SUPRA, AT 465, SAYING, INTER ALIA, "THE DECISION WAS BASED ON THE
PARTICULAR CHARACTER OF THE KLAN'S ACTIVITIES, INVOLVING ACTS OF
UNLAWFUL INTIMIDATION AND VIOLENCE."  MOREOVER, THE INCORPORATION OF
THE FIRST AMENDMENT INTO THE FOURTEENTH HAD ONLY RECENTLY BEEN
ADUMBRATED (SEE GITLOW V. NEW YORK, 268 U.S. 652, 666) AND THE FULL
EXPOSITION OF THE RIGHT OF ASSOCIATION THAT IS PART OF THE PERIPHERY OF
THE FIRST AMENDMENT HAD NOT YET BEEN MADE.  INDEED PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510, WHICH SUSTAINED THE RIGHT OF PARENTS TO AVOID
PUBLIC SCHOOLS AND TO PUT THEIR CHILDREN IN PAROCHIAL SCHOOLS, RESTED
IN PART ON THE PROPERTY INTEREST OF THE PAROCHIAL SCHOOLS.  ID., PP.
534-535. 

THE RIGHT OF ASSOCIATION HAS BECOME A PART OF THE BUNDLE OF RIGHTS
PROTECTED BY THE FIRST AMENDMENT (SEE, E.G., NAACP V. ALABAMA, SUPRA),
AND THE NEED FOR A PERVASIVE RIGHT OF PRIVACY AGAINST GOVERNMENT
INTRUSION HAS BEEN RECOGNIZED, THOUGH NOT ALWAYS GIVEN THE RECOGNITION
IT DESERVES.  (FN7)  UNPOPULAR GROUPS (NAACP V. ALABAMA, SUPRA) LIKE
POPULAR ONES ARE PROTECTED.  UNPOPULAR GROUPS IF FORCED TO DISCLOSE
THEIR MEMBERSHIP LISTS MAY SUFFER REPRISALS OR OTHER FORMS OF PUBLIC
HOSTILITY.  NAACP V. ALABAMA, SUPRA, P. 462.  BUT WHETHER A GROUP IS
POPULAR OR UNPOPULAR, THE RIGHT OF PRIVACY IMPLICIT IN THE FIRST
AMENDMENT CREATES AN AREA INTO WHICH THE GOVERNMENT MAY NOT ENTER. 

"FREEDOM OF RELIGION AND FREEDOM OF SPEECH GUARANTEED BY THE FIRST
AMENDMENT GIVE MORE THAN THE PRIVILEGE TO WORSHIP, TO WRITE, TO SPEAK
AS ONE CHOOSES; THEY GIVE FREEDOM NOT TO DO NOR TO ACT AS THE
GOVERNMENT CHOOSES.  THE FIRST AMENDMENT IN ITS RESPECT FOR THE
CONSCIENCE OF THE INDIVIDUAL HONORS THE SANCTITY OF THOUGHT AND
BELIEF.  TO THINK AS ONE CHOOSES, TO BELIEVE WHAT ONE WISHES ARE
IMPORTANT ASPECTS OF THE CONSTITUTIONAL RIGHT TO BE LET ALONE."  PUBLIC
UTILITIES COMM'N V. POLLAK, 343 U.S. 451, 467-468 (DISSENTING
OPINION). 

THERE IS NO OTHER COURSE CONSISTENT WITH THE FREE SOCIETY ENVISIONED
BY THE FIRST AMENDMENT.  FOR THE VIEWS A CITIZEN ENTERTAINS, THE
BELIEFS HE HARBORS, THE UTTERANCES HE MAKES, THE IDEOLOGY HE EMBRACES
AND THE PEOPLE HE ASSOCIATES WITH ARE NO CONCERN OF GOVERNMENT.  (FN8)
THAT ARTICLE OF FAITH MARKS INDEED THE MAIN DIFFERENCE BETWEEN THE FREE
SOCIETY WHICH WE ESPOUSE AND THE DICTATORSHIPS BOTH ON THE LEFT AND ON
THE RIGHT. 

AS MR. JUSTICE BLACK SAID (DISSENTING) IN BARENBLATT V. UNITED
STATES, SUPRA, 150-151: 

"THE FACT IS THAT ONCE WE ALLOW ANY GROUP WHICH HAS SOME POLITICAL
AIMS OR IDEAS TO BE DRIVEN FROM THE BALLOT AND FROM THE BATTLE FOR
MEN'S MINDS BECAUSE SOME OF ITS MEMBERS ARE BAD AND SOME OF ITS TENETS
ARE ILLEGAL, NO GROUP IS SAFE.  TODAY WE DEAL WITH COMMUNISTS OR
SUSPECTED COMMUNISTS.  IN 1920, INSTEAD, THE NEW YORK ASSEMBLY
SUSPENDED DULY ELECTED LEGISLATORS ON THE GROUND THAT, BEING
SOCIALISTS, THEY WERE DISLOYAL TO THE COUNTRY'S PRINCIPLES.  IN THE
1830'S THE MASONS WERE HUNTED AS OUTLAWS AND SUBVERSIVES, AND
ABOLITIONISTS WERE CONSIDERED REVOLUTIONARIES OF THE MOST DANGEROUS
KIND IN BOTH NORTH AND SOUTH.  EARLIER STILL, AT THE TIME OF THE
UNIVERSALLY UNLAMENTED ALIEN AND SEDITION LAWS, THOMAS JEFFERSON'S
PARTY WAS ATTACKED AND ITS MEMBERS WERE DERISIVELY CALLED 'JACOBINS.' 
FISHER AMES DESCRIBED THE PARTY AS A 'FRENCH FACTION' GUILTY OF
'SUBVERSION' AND 'OFFICERED, REGIMENTED AND FORMED TO SUBORDINATION.' 
ITS MEMBERS, HE CLAIMED, INTENDED TO 'TAKE ARMS AGAINST THE LAWS AS
SOON AS THEY DARE.'  HISTORY SHOULD TEACH US THEN, THAT IN TIMES OF
HIGH EMOTIONAL EXCITEMENT MINORITY PARTIES AND GROUPS WHICH ADVOCATE
EXTREMELY UNPOPULAR SOCIAL OR GOVERNMENTAL INNOVATIONS WILL ALWAYS BE
TYPED AS CRIMINAL GANGS AND ATTEMPTS WILL ALWAYS BE MADE TO DRIVE THEM
OUT.  IT WAS KNOWLEDGE OF THIS FACT, AND OF ITS GREAT DANGERS, THAT
CAUSED THE FOUNDERS OF OUR LAND TO ENACT THE FIRST AMENDMENT AS A
GUARANTEE THAT NEITHER CONGRESS NOR THE PEOPLE WOULD DO ANYTHING TO
HINDER OR DESTROY THE CAPACITY OF INDIVIDUALS AND GROUPS TO SEEK
CONVERTS AND VOTES FOR ANY CAUSE, HOWEVER RADICAL OR UNPALATABLE THEIR
PRINCIPLES MIGHT SEEM UNDER THE ACCEPTED NOTIONS OF THE TIME."    IF A
GROUP IS ENGAGING IN ACTS OR A COURSE OF CONDUCT THAT IS CRIMINAL, IT
CAN BE PROSECUTED, AND IT AND ITS MEMBERS CAN BE INVESTIGATED, SAVE AS
THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT SETS UP A
BARRIER.  IN LOUISIANA V. NAACP, SUPRA, A STATE STATUTE REQUIRING THE
N.A.A.C.P. TO REGISTER AND DISCLOSE ITS MEMBERSHIP LISTS WAS INVOLVED. 
WE DENIED ENFORCEMENT OF THAT LAW, SAYING THAT WE ARE "IN AN AREA
WHERE, AS SHELTON V. TUCKER, 364 U.S. 479, EMPHASIZED, ANY REGULATION
MUST BE HIGHLY SELECTIVE IN ORDER TO SURVIVE CHALLENGE UNDER THE FIRST
AMENDMENT."  366 U.S., AT 296.  AND WE ADDED: 

"AT ONE EXTREME IS CRIMINAL CONDUCT WHICH CANNOT HAVE SHELTER IN THE
FIRST AMENDMENT.  AT THE OTHER EXTREME ARE REGULATORY MEASURES WHICH,
NO MATTER HOW SOPHISTICATED, CANNOT BE EMPLOYED IN PURPOSE OR IN EFFECT
TO STIFLE, PENALIZE, OR CURB THE EXERCISE OF FIRST AMENDMENT RIGHTS." 
ID., AT 297. 

THE FLORIDA COURT IN THIS CASE SAID THAT A REQUIREMENT OF
NONDISCLOSURE WOULD PROVIDE AN "IDEOLOGICAL ASYLUM FOR THOSE WHO WOULD
DESTROY BY VIOLENCE THE VERY FOUNDATIONS UPON WHICH THEIR GOVERNMENTAL
SANCTUARY STANDS."  126 SO. 2D 129, 132.  BUT THERE IS NO SHOWING HERE
THAT THE N.A.A.C.P. IS ENGAGED IN ANY CRIMINAL ACTIVITY OF ANY KIND
WHATSOEVER.  THE FLORIDA SUPREME COURT IN GRAHAM V. FLORIDA LEGISLATIVE
INVESTIGATION COMMITTEE, 126 SO. 2D 133, 136, CONCEDED THAT THE
N.A.A.C.P. IS "AN ORGANIZATION PERFECTLY LEGITIMATE BUT ALLEGEDLY
UNPOPULAR IN THE COMMUNITY."  WHETHER IT HAS MEMBERS WHO HAVE COMMITTED
CRIMES IS IMMATERIAL.  ONE MAN'S PRIVACY MAY NOT BE INVADED BECAUSE OF
ANOTHER'S PERVERSITY.  IF THE FILES OF THE N.A.A.C.P. CAN BE RANSACKED
BECAUSE SOME COMMUNISTS MAY HAVE JOINED IT, THEN ALL WALLS OF PRIVACY
ARE BROKEN DOWN.  BY THAT REASONING THE RECORDS OF THE CONFESSIONAL CAN
BE RANSACKED BECAUSE A "SUBVERSIVE" OR A CRIMINAL WAS IMPLICATED.  BY
THAT REASONING AN ENTIRE CHURCH CAN BE INVESTIGATED BECAUSE ONE MEMBER
WAS AN IDEOLOGICAL STRAY OR HAD ONCE BEEN A COMMUNIST OR BECAUSE THE
MINISTER'S SERMON PARALLELED THE PARTY LINE.  BY THAT REASONING THE
FILES OF ANY SOCIETY OR CLUB CAN BE SEIZED BECAUSE MEMBERS OF A
"SUBVERSIVE" GROUP HAD INFILTRATED IT. 

IN SUM, THE STATE AND THE FEDERAL GOVERNMENTS, BY FORCE OF THE FIRST
AMENDMENT, ARE BARRED FROM INVESTIGATING ANY PERSON'S FAITH OR IDEOLOGY
BY SUMMONING HIM OR BY SUMMONING OFFICERS OR MEMBERS OF HIS SOCIETY,
CHURCH, OR CLUB. 

GOVERNMENT CAN INTERVENE ONLY WHEN BELIEF, THOUGHT, OR EXPRESSION
MOVES INTO THE REALM OF ACTION THAT IS INIMICAL TO SOCIETY.  THAT WAS
JEFFERSON'S VIEW.  IN HIS BILL FOR ESTABLISHING RELIGIOUS FREEDOM HE
SPOKE PRIMARILY OF RELIGIOUS LIBERTY BUT IN TERMS APPLICABLE TO FREEDOM
OF THE MIND IN ALL OF ITS ASPECTS.  IT WAS HIS VIEW THAT IN THE FREE
SOCIETY MEN'S IDEAS AND BELIEFS, THEIR SPEECH AND ADVOCACY ARE NOT
PROPER CONCERN OF GOVERNMENT.  ONLY WHEN THEY BECOME BRIGADED WITH
ACTION CAN GOVERNMENT MOVE AGAINST THEM.  JEFFERSON SAID: (FN9) 

"  ...  THAT THE OPINIONS OF MEN ARE NOT THE OBJECT OF CIVIL
GOVERNMENT, NOR UNDER ITS JURISDICTION; THAT TO SUFFER THE CIVIL
MAGISTRATE TO INTRUDE HIS POWERS INTO THE FIELD OF OPINION AND TO
RESTRAIN THE PROFESSION OR PROPAGATION OF PRINCIPLES ON SUPPOSITION OF
THEIR ILL TENDENCY IS A DANGEROUS FALLACY, WHICH AT ONCE DESTROYS ALL
RELIGIOUS LIBERTY, BECAUSE HE BEING OF COURSE JUDGE OF THAT TENDENCY
WILL MAKE HIS OPINIONS THE RULE OF JUDGMENT, AND APPROVE OR CONDEMN THE
SENTIMENTS OF OTHERS ONLY AS THEY SHALL SQUARE WITH OR SUFFER FROM HIS
OWN; THAT IT IS TIME ENOUGH FOR THE RIGHTFUL PURPOSES OF CIVIL
GOVERNMENT FOR ITS OFFICERS TO INTERFERE WHEN PRINCIPLES BREAK OUT INTO
OVERT ACTS AGAINST PEACE AND GOOD ORDER; AND FINALLY, THAT TRUTH IS
GREAT AND WILL PREVAIL IF LEFT TO HERSELF; THAT SHE IS THE PROPER AND
SUFFICIENT ANTAGONIST TO ERROR, AND HAS NOTHING TO FEAR FROM THE
CONFLICT UNLESS BY HUMAN INTERPOSITION DISARMED OF HER NATURAL WEAPONS,
FREE ARGUMENT AND DEBATE; ERRORS CEASING TO BE DANGEROUS WHEN IT IS
PERMITTED FREELY TO CONTRADICT THEM." 

MADISON TOO KNEW THAT TOLERANCE FOR ALL IDEAS ACROSS THE SPECTRUM WAS
THE ONLY TRUE GUARANTEE OF FREEDOM OF THE MIND:  (FN10) 

"WHILST ALL AUTHORITY IN IT WILL BE DERIVED FROM AND DEPENDENT ON THE
SOCIETY, THE SOCIETY ITSELF WILL BE BROKEN INTO SO MANY PARTS,
INTERESTS AND CLASSES OF CITIZENS, THAT THE RIGHTS OF INDIVIDUALS, OR
OF THE MINORITY, WILL BE IN LITTLE DANGER FROM INTERESTED COMBINATIONS
OF THE MAJORITY.  IN A FREE GOVERNMENT THE SECURITY FOR CIVIL RIGHTS
MUST BE THE SAME AS THAT FOR RELIGIOUS RIGHTS.  IT CONSISTS IN THE ONE
CASE IN THE MULTIPLICITY OF INTERESTS, AND IN THE OTHER IN THE
MULTIPLICITY OF SECTS.  THE DEGREE OF SECURITY IN BOTH CASES WILL
DEPEND ON THE NUMBER OF INTERESTS AND SECTS  ...  ." 

ONCE THE INVESTIGATOR HAS ONLY THE CONSCIENCE OF GOVERNMENT AS A
GUIDE, THE CONSCIENCE CAN BECOME "RAVENOUS," AS CROMWELL, BENT ON
DESTROYING THOMAS MORE, SAID IN BOLT, A MAN FOR ALL SEASONS (1960), P.
120.  THE FIRST AMENDMENT MIRRORS MANY EPISODES WHERE MEN, HARRIED AND
HARASSED BY GOVERNMENT, SOUGHT REFUGE IN THEIR CONSCIENCE, AS THESE
LINES OF THOMAS MORE SHOW: 

"MORE:  AND WHEN WE STAND BEFORE GOD, AND YOU ARE SENT TO PARADISE
FOR DOING ACCORDING TO YOUR CONSCIENCE, AND I AM DAMNED FOR NOT DOING
ACCORDING TO MINE, WILL YOU COME WITH ME, FOR FELLOWSHIP? 

"CRANMER:  SO THOSE OF US WHOSE NAMES ARE THERE ARE DAMNED, SIR
THOMAS? 

"MORE:  I DON'T KNOW, YOUR GRACE.  I HAVE NO WINDOW TO LOOK INTO
ANOTHER MAN'S CONSCIENCE.  I CONDEMN NO ONE. 

"CRANMER:  THEN THE MATTER IS CAPABLE OF QUESTION? 

"MORE:  CERTAINLY. 

"CRANMER:  BUT THAT YOU OWE OBEDIENCE TO YOUR KING IS NOT CAPABLE OF
QUESTION.  SO WEIGH A DOUBT AGAINST A CERTAINTY - AND SIGN. 

"MORE:  SOME MEN THINK THE EARTH IS ROUND, OTHER THINK IT FLAT; IT IS
A MATTER CAPABLE OF QUESTION.  BUT IF IT IS FLAT, WILL THE KING'S
COMMAND MAKE IT ROUND?  AND IF IT IS ROUND, WILL THE KING'S COMMAND
FLATTEN IT?  NO, I WILL NOT SIGN."  ID., PP. 132-133. 

WHERE GOVERNMENT IS THE BIG BROTHER, (FN11) PRIVACY GIVES WAY TO
SURVEILLANCE.  BUT OUT COMMITMENT IS OTHERWISE.  BY THE FIRST AMENDMENT
WE HAVE STAKED OUR SECURITY ON FREEDOM TO PROMOTE A MULTIPLICY OF
IDEAS, TO ASSOCIATE AT WILL WITH KINDRED SPIRITS, AND TO DEFY
GOVERNMENTAL INTRUSION INTO THESE PRECINCTS.  (FN12) 

FN1  SEE BRENNAN, THE BILL OF RIGHTS AND THE STATES, 36 N.Y.U.L. REV.
761, 770-778. 

FN2  SOME HAVE BELIEVED THAT THESE RESTRAINTS AS APPLIED TO THE
STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ARE
LESS RESTRICTIVE ON THEM THAN THEY ARE ON THE FEDERAL GOVERNMENT.  THAT
IS THE VIEW OF MY BROTHER HARLAN.  SEE ROTH V. UNITED STATES, 354 U.S.
476, 501, 506; SMITH V. CALIFORNIA, 361 U.S. 147, 169.  MR. JUSTICE
JACKSON EXPRESSED THE SAME VIEW IN BEAUHARNAIS V. ILLINOIS, 343 U.S.
250, 288.  AND COMPARE THE OPINIONS OF JUSTICES HOLMES AND BRANDEIS IN
GITLOW V. NEW YORK, 268 U.S. 652, 672, AND WHITNEY V. CALIFORNIA, 274
U.S. 357, 372.  BUT THAT VIEW HAS NOT PREVAILED.  THE COURT HAS INDEED
APPLIED THE SAME FIRST AMENDMENT REQUIREMENTS TO THE STATES AS TO THE
FEDERAL GOVERNMENT. 

AS STATED BY MR. JUSTICE BLACK IN SPEISER V. RANDALL, 357 U.S. 513,
530 (CONCURRING OPINION): 

"THE FIRST AMENDMENT  ...  OF COURSE IS APPLICABLE IN ALL ITS
PARTICULARS TO THE STATES.  SEE, E.G., STAUB V. CITY OF BAXLEY, 355
U.S. 313; POULOS V. NEW HAMPSHIRE, 345 U.S. 395, 396-397; EVERSON V.
BOARD OF EDUCATION, 330 U.S. 1, 8; THOMAS V. COLLINS, 323 U.S. 516;
BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 639; DOUGLAS V.
JEANNETTE, 319 U.S. 157, 162; MARTIN V. STRUTHERS, 319 U.S. 141;
MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 109; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568, 571; BRIDGES V. CALIFORNIA, 314 U.S. 252, 263;
CANTWELL V. CONNECTICUT, 310 U.S. 296, 303; SCHNEIDER V. STATE, 308
U.S. 147, 160; LOVELL V. GRIFFIN, 303 U.S. 444, 450; DE JONGE V.
OREGON, 299 U.S. 353, 364; GITLOW V. NEW YORK, 268 U.S. 652, 666." 

THESE CASES ARE INCONSISTENT WITH THE VIEW THAT FIRST AMENDMENT
RIGHTS PROTECTED AGAINST STATE INVASION BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT ARE A WATERED-DOWN VERSION OF WHAT THE FIRST
AMENDMENT GUARANTEES. 

FN3  SEE REICH, MR. JUSTICE BLACK AND THE LIVING CONSTITUTION, 76
HARV. L. REV. 673, 727-750. 

FN4  CORWIN, THE CONSTITUTION AND WHAT IT MEANS TODAY (1958), P. 203;
ARENDT, ON REVOLUTION (1963), P. 25. 

FN5  JEFFERSON'S GRAND DESIGN INCLUDED A DIVISION "INTO HUNDREDS" - A
VIABLE WARD SYSTEM THROUGH WHICH THE PEOPLE EXERCISED THEIR RIGHTS OF
SOVEREIGNTY.  LETTER TO JOHN TYLER, MAY 26, 1810: 

"I HAVE INDEED TWO GREAT MEASURES AT HEART, WITHOUT WHICH NO REPUBLIC
CAN MAINTAIN ITSELF IN STRENGTH.  1.  THAT OF GENERAL EDUCATION, TO
ENABLE EVERY MAN TO JUDGE FOR HIMSELF WHAT WILL SECURE OR ENDANGER HIS
FREEDOM.  2.  TO DIVIDE EVERY COUNTY INTO HUNDREDS, OF SUCH SIZE THAT
ALL THE CHILDREN OF EACH WILL BE WITHIN REACH OF A CENTRAL SCHOOL IN
IT.  BUT THIS DIVISION LOOKS TO MANY OTHER FUNDAMENTAL PROVISIONS. 
EVERY HUNDRED, BESIDES A SCHOOL, SHOULD HAVE A JUSTICE OF THE PEACE, A
CONSTABLE AND A CAPTAIN OF MILITIA.  THESE OFFICERS, OR SOME OTHERS
WITHIN THE HUNDRED, SHOULD BE A CORPORATION TO MANAGE ALL ITS CONCERNS,
TO TAKE CARE OF ITS ROADS, ITS POOR, AND ITS POLICE BY PATROLS, ETC.
(AS THE SELECTMEN OF THE EASTERN TOWNSHIPS).  EVERY HUNDRED SHOULD
ELECT ONE OR TWO JURORS TO SERVE WHERE REQUISITE, AND ALL OTHER
ELECTIONS SHOULD BE MADE IN THE HUNDREDS SEPARATELY, AND THE VOTES OF
ALL THE HUNDREDS BE BROUGHT TOGETHER.  OUT PRESENT CAPTAINCIES MIGHT BE
DECLARED HUNDREDS FOR THE PRESENT, WITH A POWER TO THE COURTS TO ALTER
THEM OCCASIONALLY.  THESE LITTLE REPUBLICS WOULD BE THE MAIN STRENGTH
OF THE GREAT ONE.  WE OWE TO THEM THE VIGOR GIVEN TO OUR REVOLUTION IN
ITS COMMENCEMENT IN THE EASTERN STATES, AND BY THEM THE EASTERN STATES
WERE ENABLED TO REPEAL THE EMBARGO IN OPPOSITION TO THE MIDDLE,
SOUTHERN AND WESTERN STATES, AND THEIR LARGE AND LUBBERLY DIVISION INTO
COUNTIES WHICH CAN NEVER BE ASSEMBLED.  GENERAL ORDERS ARE GIVEN OUT
FROM A CENTRE TO THE FOREMAN OF EVERY HUNDRED, AS TO THE SERGEANTS OF
AN ARMY, AND THE WHOLE NATION IS THROWN INTO ENERGETIC ACTION, IN THE
SAME DIRECTION IN ONE INSTANCE AND AS ONE MAN, AND BECOMES ABSOLUTELY
IRRESISTIBLE.  COULD I ONCE SEE THIS I SHOULD CONSIDER IT AS THE DAWN
OF THE SALVATION OF THE REPUBLIC, AND SAY WITH OLD SIMEON, 'NUNC
DIMITTIS DOMINE.'"  12 WRITINGS OF THOMAS JEFFERSON (MEM. ED. 1904) 393
394. 

AND SEE LETTER TO JOHN CARTWRIGHT, JUNE 5, 1824, 16 JEFFERSON, OP
CIT., SUPRA, 42, 44-46; LETTER TO SAMUEL KERCHEVAL, JULY 12, 1816, 15
JEFFERSON, OP CIT., SUPRA, 32-44; AND LETTER TO SAMUEL KERCHEVAL,
SEPTEMBER 5, 1816.  ID., AT 70-71. 

FN6  "BUT THE ADVOCATE OF 'JUDICIAL RESTRAINT' WILL INSIST THAT WHERE
THERE IS ROOM FOR A REASONABLE DIFFERENCE OF OPINION BETWEEN  ...  (THE
LEGISLATIVE BODY) AND THE COURT AS TO WHETHER CERTAIN ACTION VIOLATES
THE FIRST AMENDMENT,  ...  (THE LEGISLATURE'S) VIEW SHOULD TAKE
PRECEDENCE.  THERE ARE EXCELLENT REASONS WHY IT SHOULD NOT.  FIRST OF
ALL, 'CONGRESS SHALL MAKE NO LAW  ...  ' IS AN OBVIOUS AND EXPRESS
EFFORT TO RESTRAIN  ...  (LEGISLATIVE) POWER.  IF THAT RESTRAINT IS TO
BE EFFECTIVE, THEN  ...  (THE LEGISLATURE) IS THE LEAST APPORPRIATE
BODY IN THE WORLD TO BE ACCORDED THE FINAL WORD AS TO WHAT IT MEANS. 
AND, WHILE I HAVE NO DESIRE TO RE-WAGE THE GENERAL BATTLE FOR JUDICIAL
REVIEW, THE EVIDENCE IS REASONABLY CLEAR THAT THE FIRST AMENDMENT WAS
PROPOSED WITH THE EXPRESS EXPECTATION AND INTENTION THAT THE COURTS
WOULD ENFORCE IT."  ID., AT 1447-1448. 

FN7  SEE GENERALLY BEANEY, THE CONSTITUTIONAL RIGHT TO PRIVACY IN THE
SUPREME COURT, 1962 SUPREME COURT REVIEW, 212; DYKSTRA, THE RIGHT MOST
VALUED BY CIVILIZED MAN, 6 UTAH L. REV. 305; ROBINSON, PROTECTION OF
ASSOCIATIONS FROM COMPULSORY DISCLOSURE OF MEMBERSHIP, 58 COL L. REV.
614; FRANTZ, THE FIRST AMENDMENT IN THE BALANCE, 71 YALE L.J. 1424. 

A PART OF THE PHILOSOPHICAL BASIS OF THIS RIGHT HAS ITS ROOTS IN THE
COMMON LAW.  AS WARREN AND BRANDEIS, THE RIGHT TO PRIVACY, 4 HARV. L.
REV. 193, 196, STATED: 

"THE INTENSITY AND COMPLEXITY OF LIFE, ATTENDANT UPON ADVANCING
CIVILIZATION, HAVE RENDERED NECESSARY SOME RETREAT FROM THE WORLD, AND
MAN, UNDER THE REFINING INFLUENCE OF CULTURE, HAS BECOME MORE SENSITIVE
TO PUBLICITY, SO THAT SOLITUDE AND PRIVACY HAVE BECOME MORE ESSENTIAL
TO THE INDIVIDUAL; BUT MODERN ENTERPRISE AND INVENTION HAVE, THROUGH
INVASIONS UPON HIS PRIVACY, SUBJECTED HIM TO MENTAL PAIN AND DISTRESS,
FAR GREATER THAN COULD BE INFLICTED BY MERE BODILY INJURY." 

SEE ALSO OLMSTEAD V. UNITED STATES, 277 U.S. 483, 471, 472-479
(DISSENTING OPINION, BRANDEIS, J.); POE V. ULLMAN, 367 U.S. 497, 509,
515-522 (DISSENTING OPINION). 

WHETHER THE PROBLEM INVOLVES THE RIGHT OF AN INDIVIDUAL TO BE LET
ALONE IN THE SANCTUARY OF HIS HOME OR HIS RIGHT TO ASSOCIATE WITH
OTHERS FOR THE ATTAINMENT OF LAWFUL PURPOSES, THE INDIVIDUAL'S INTEREST
IN BEING FREE FROM GOVERNMENTAL INTERFERENCE IS THE SAME, AND, EXCEPT
FOR THE LIMITED SITUATION WHERE THERE IS "PROBABLE CAUSE" FOR BELIEVING
THAT HE IS INVOLVED IN A CRIME, THE GOVERNMENT'S DISABILITY IS EQUALLY
COMPLETE. 

FN8  AS TO PROBLEMS RAISED WHEN DISCLOSURE OF MEMBERS OF A POLITICAL
ORGANIZATION WHICH REPRESENTS A FOREIGN GOVERNMENT IS REQUIRED, SEE
COMMUNIST PARTY V. CONTROL BOARD, 367, U.S. 1.    FN9  THE WORKS OF
THOMAS JEFFERSON (FED. ED 1904), VOL 2, PP. 440-441. 

FN10  FEDERALIST, NO. 51. 

FN11  "OUTSIDE, EVEN THROUGH THE SHUT WINDOW PANE, THE WORLD LOOKED
COLD.  DOWN IN THE STREET LITTLE EDDIES OF WIND WERE WHIRLING DUST AND
TORN PAPER INTO SPIRALS, AND THOUGH THE SUN WAS SHINING AND THE SKY A
HARSH BLUE, THERE SEEMED TO BE NO COLOR IN ANYTHING EXCEPT THE POSTERS
THAT WERE PLASTERED EVERYWHERE.  THE BLACK-MUSTACHIO'D FACE GAZED DOWN
FROM EVERY COMMANDING CORNER.  THERE WAS ONE ON THE HOUSE FRONT
IMMEDIATELY OPPOSITE.  BIG BROTHER IS WATCHING YOU, THE CAPTION SAID,
WHILE THE DARK EYES LOOKED DEEP INTO WINSTON'S OWN.  DOWN AT STREET
LEVEL ANOTHER POSTER, TORN AT ONE CORNER, FLAPPED FITFULLY IN THE WIND,
ALTERNATELY COVERING AND UNCOVERING THE SINGLE WORD INGSOC.  IN THE FAR
DISTANCE A HELICOPTER SKIMMED DOWN BETWEEN THE ROOFS, HOVERED FOR AN
INSTANT LIKE A BLUE-BOTTLE, AND DARTED AWAY AGAIN WITH A CURVING
FLIGHT.  IT WAS THE POLICE PATROL, SNOOPING INTO PEOPLE'S WINDOWS.  THE
PATROLS DID NOT MATTER, HOWEVER.  ONLY THE THOUGHT POLICE MATTERED." 
ORWELL, NINETEEN EIGHTY-FOUR (1949), 4. 

FN12  "THOSE WHO WON OUR INDEPENDENCE BELIEVED THAT THE FINAL END OF
THE STATE WAS TO MAKE MEN FREE TO DEVELOP THEIR FACULTIES; AND THAT IN
ITS GOVERNMENT THE DELIBERATIVE FORCES SHOULD PREVAIL OVER THE
ARBITRARY.  THEY VALUED LIBERTY BOTH AS AN END AND AS A MEANS.  THEY
BELIEVED LIBERTY TO BE THE SECRET OF HAPPINESS AND COURAGE TO BE THE
SECRET OF LIBERTY.  THEY BELIEVED THAT FREEDOM TO THINK AS YOU WILL AND
TO SPEAK AS YOU THINK ARE MEANS INDISPENSABLE TO THE DISCOVERY AND
SPREAD OF POLITICAL TRUTH; THAT WITHOUT FREE SPEECH AND ASSEMBLY
DISCUSSION WOULD BE FUTILE; THAT WITH THEM, DISCUSSION AFFORDS
ORDINARILY ADEQUATE PROTECTION AGAINST THE DISSEMINATION OF NOXIOUS
DOCTRINE; THAT THE GREATEST MENACE TO FREEDOM IS AN INERT PEOPLE; THAT
PUBLIC DISCUSSION IS A POLITICAL DUTY; AND THAT THIS SHOULD BE A
FUNDAMENTAL PRINCIPLE OF THE AMERICAN GOVERNMENT  ...  ." 

"THOSE WHO WON OUR INDEPENDENCE BY REVOLUTION WERE NOT COWARDS.  THEY
DID NOT FEAR POLITICAL CHANGE.  THEY DID NOT EXALT ORDER AT THE COST OF
LIBERTY.  TO COURAGEOUS, SELF-RELIANT MEN, WITH CONFIDENCE IN THE POWER
OF FREE AND FEARLESS REASONING APPLIED THROUGH THE PROCESSES OF POPULAR
GOVERNMENT, NO DANGER FLOWING FROM SPEECH CAN BE DEEMED CLEAR AND
PRESENT, UNLESS THE INCIDENCE OF THE EVIL APPREHENDED IS SO IMMINENT
THAT IT MAY BEFALL BEFORE THERE IS OPPORTUNITY FOR FULL DISCUSSION.  IF
THERE BE TIME TO EXPOSE THROUGH DISCUSSION THE FALSEHOOD AND FALLACIES,
TO AVERT THE EVIL BY THE PROCESSES OF EUCATION, THE REMEDY TO BE
APPLIED IS MORE SPEECH, NOT ENFORCED SILENCE.  ONLY AN EMERGENCY CAN
JUSTIFY REPRESSION.  SUCH MUST BE THE RULE IF AUTHORITY IS TO BE
RECONCILED WITH FREEDOM  ...  ."  WHITNEY V. CALIFORNIA, 274 U.S. 357,
375, 377 (CONCURRING OPINION OF MR. JUSTICE BRANDEIS). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK, MR. JUSTICE STEWART, AND
MR. JUSTICE WHITE, JOIN, DISSENTING. 

THE DIFFICULTIES WITH THIS DECISION WILL BECOME APPARENT ONCE THE
CASE IS DEFLATED TO ITS TRUE SIZE. 

THE ESSENTIAL FACTS ARE THESE.  FOR SEVERAL YEARS BEFORE PETITIONER
WAS CONVICTED OF THIS CONTEMPT, THIS RESPONDENT, A DULY AUTHORIZED
COMMITTEE OF THE FLORIDA LEGISLATURE, HAD BEEN INVESTIGATING ALLEGED
COMMUNIST "INFILTRATION" INTO VARIOUS ORGANIZATIONS IN DADE COUNTY,
FLORIDA, INCLUDING THE MIAMI BRANCH OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE.  (FN1)  THERE WAS NO SUGGESTION THAT THE
BRANCH ITSELF HAD ENGAGED IN ANY SUBVERSIVE OR OTHER ILLEGAL ACTIVITY,
BUT THE COMMITTEE HAD DEVELOPED INFORMATION INDICATING THAT 14 OF SOME
52 PRESENT OR PAST RESIDENTS OF DADE COUNTY, APPARENTLY AT ONE TIME OR
ANOTHER MEMBERS OF THE COMMUNIST PARTY OR CONNECTED ORGANIZATIONS,
(FN2) WERE OR HAD BEEN MEMBERS OR HAD "PARTICIPATED IN THE MEETINGS AND
OTHER AFFAIRS" OF THIS LOCAL BRANCH OF THE N.A.A.C.P. 

HAVING FAILED TO OBTAIN FROM PRIOR WITNESSES, OTHER THAN ITS OWN
INVESTIGATOR, ANY SIGNIFICANT DATA AS TO THE TRUTH OR FALSITY OF THIS
INFORMATION, THE COMMITTEE, IN 1959, SUMMONED THE PETITIONER TO
TESTIFY, ALSO REQUIRING THAT HE BRING WITH HIM THE MEMBERSHIP RECORDS
OF THE BRANCH.  PETITIONER, A NEGRO CLERGYMAN, WAS THEN AND FOR THE
PAST FIVE YEARS HAD BEEN PRESIDENT OF THE LOCAL BRANCH, AND HIS
CUSTODIANSHIP OF THE RECORDS STANDS CONCEDED. 

ON HIS APPEARANCE BEFORE THE COMMITTEE PETITIONER WAS ASKED TO
CONSULT THESE RECORDS HIMSELF AND, AFTER DOING SO, TO INFORM THE
COMMITTEE WHICH, IF ANY, OF THE 52 INDIVIDUALLY IDENTIFIED PERSONS WERE
OR HAD BEEN MEMBERS OF THE N.A.A.C.P. MIAMI BRANCH.  HE DECLINED TO DO
THIS ON TWO GROUNDS.  FIRST, HE SAID THAT THE N.A.A.C.P. ITSELF HAD
ALREADY UNDERTAKEN ACTION "EXCLUDING FROM OUR RANKS ANY AND ALL PERSONS
WHO MAY HAVE SUBVERSIVE TENDENCIES."  TO SUBSTANTIATE THIS, PETITIONER
FURNISHED THE COMMITTEE WITH COPIES OF "ANTI-COMMUNISM" RESOLUTIONS
WHICH HE STATED HAD BEEN ADOPTED EACH YEAR SINCE 1950 AT THE
ASSOCIATION'S ANNUAL CONVENTION.  SECOND, PETITIONER PROTESTED THAT
PRODUCTION OF THE MEMBERSHIP RECORDS WOULD VIOLATE 'A LEGAL RIGHT OF
OURS, THE RIGHT OF ASSOCIATION."  AT THE SAME TIME THE PETITIONER
EXPRESSED WILLINGNESS TO TESTIFY FROM RECOLLECTION AS TO THE MEMBERSHIP
OR NONMEMBERSHIP IN THE LOCAL BRANCH OF ANY PERSONS THAT THE COMMITTEE
MIGHT NAME TO HIM. 

THE PETITIONER WAS THEN ASKED TO STATE FROM RECOLLECTION THE
N.A.A.C.P. MEMBERSHIP VEL NON OF THE 14 PERSONS MENTIONED ABOVE,
PHOTOGRAPHS OF EACH BEING EXHIBITED TO HIM.  BUT HE WAS UNABLE TO
SUPPLY ANY INFORMATION, DISCLAIMING EVEN KNOWLEDGE OF MOST OF THE
NAMES.  HE WAS THEN AGAIN ASKED TO UTILIZE THE MEMBERSHIP RECORDS AS A
TESTIMONIAL AID, IT HAVING BEEN EARLIER MADE CLEAR TO HIM THAT THE
COMMITTEE ITSELF DID NOT PROPOSE TO LOOK AT THE RECORDS: 

"(BY COMMITTEE COUNSEL).  NOW, ARE YOU AWARE OF THE FACT, REVEREND,
THAT WE'RE NOT ACTUALLY ASKED YOU TO TURN OVER TO THIS COMMITTEE THOSE
RECORDS, BUT THAT WE'RE ASKING THAT YOU BRING THOSE RECORDS HERE FOR
THE PURPOSE OF CONSULTING THEM YOURSELF AND TELLING US, UNDER OATH,
AFTER CONSULTING THEM, WHETHER OR NOT CERTAIN PEOPLE WHO WE WILL NAME
ARE MEMBERS, OR HAVE BEEN MEMBERS OF YOUR ORGANIZATION? 

"(BY THE WITNESS).  I'M AWARE OF IT." 

PETITIONER PERSISTED IN HIS REFUSAL.  THIS CONTEMPT CHARGE AND
CONVICTION, AND ITS AFFIRMANCE BY THE SUPREME COURT OF FLORIDA, 126 SO.
2D 129, FOLLOWED. 

                                       I. 

THIS COURT RESTS REVERSAL ON ITS FINDING THAT THE COMMITTEE DID NOT
HAVE SUFFICIENT JUSTIFICATION FOR INCLUDING THE MIAMI BRANCH OF THE
N.A.A.C.P. WITHIN THE AMBIT OF ITS INVESTIGATION - THAT, IN THE
LANGUAGE OF OUR CASES (UPHAUS V. WYMAN, 360 U.S. 72, 79), AN ADEQUATE
"NEXUS" WAS LAKCING BETWEEN THE N.A.A.C.P. AND THE SUBJECT MATTER OF
THE COMMITTEE'S INQUIRY. 

THE COURT'S REASONING IS DIFFICULT TO GRASP.  I READ ITS OPINION AS
BASICALLY PROCEEDING ON THE PREMISE THAT THE GOVERNMENTAL INTEREST IN
INVESTIGATING COMMUNIST INFILTRATION INTO ADMITTEDLY NONSUBVERSIVE
ORGANIZATIONS, AS DISTINGUISHED FROM INVESTIGATING ORGANIZATIONS,
THEMSELVES SUSPECTED OF SUBVERSIVE ACTIVITIES, IS NOT SUFFICIENT TO
OVERCOME THE COUNTERVAILING RIGHT TO FREEDOM OF ASSOCIATION.  ANTE, PP.
547-549.  ON THIS BASIS "NEXUS" IS SEEMINGLY FOUND LACKING BECAUSE IT
WAS NEVER CLAIMED THAT THE N.A.A.C.P. MIAMI BRANCH HAD ITSELF ENGAGED
IN SUBVERSIVE ACTIVITY, ANTE, PP. 554-555, AND BECAUSE NONE OF THE
COMMITTEE'S EVIDENCE RELATING TO ANY OF THE 52 ALLEGED COMMUNIST PARTY
MEMBERS WAS SUFFICIENT TO ATTRIBUTE SUCH ACTIVITY TO THE LOCAL BRANCH
OR TO SHOW THAT IT WAS DOMINATED, INFLUENCED, OR USED "BY COMMUNISTS." 
ANTE, PP. 550-555. 

BUT, UNTIL TODAY, I HAD NEVER SUPPOSED THAT ANY OF OUR DECISIONS
RELATING TO STATE OR FEDERAL POWER TO INVESTIGATE IN THE FIELD OF
COMMUNIST SUBVERSION COULD POSSIBLY BE TAKEN AS SUGGESTING ANY
DIFFERENCE IN THE DEGREE OF GOVERNMENTAL INVESTIGATORY INTEREST AS
BETWEEN COMMUNIST INFILTRATION OF ORGANIZATIONS AND COMMUNIST ACTIVITY
BY ORGANIZATIONS.  SEE, E.G., BARENBLATT V. UNITED STATES, 360 U.S. 109
(INFILTRATION INTO EDUCATION); WILKINSON V. UNITED STATES, 365 U.S.
399, AND BRADEN V. UNITED STATES, 365 U.S. 431 (INFILTRATION INTO BASIC
INDUSTRIES); RUSSELL V. UNITED STATES, 369 U.S. 749, 773 (INFILTRATION
OF NEWSPAPER BUSINESS). 

CONSIDERING THE NUMBER OF CONGRESSIONAL INQUIRIES THAT HAVE BEEN
CONDUCTED IN THE FIELD OF "COMMUNIST INFILTRATION" SINCE THE CLOSE OF
WORLD WAR II, AFFECTING SUCH DIVERSE INTERESTS AS "LABOR, FARMER,
VETERAN, PROFESSIONAL, YOUTH, AND MOTION PICTURE GROUPS" (BARENBLATT,
SUPRA, AT 119), IT IS INDEED STRANGE TO FIND THE STRENGTH OF STATE
INTEREST IN THE SAME TYPE OF INVESTIGATIONS NOW IMPUGNED.  AND IT IS
NOT AMISS TO RECALL THAT GOVERNMENT EVIDENCE IN SMITH ACT PROSECUTIONS
HAS SHOWN THAT THE SENSITIVE AREA OF RACE RELATIONS HAS LONG BEEN A
PRIME TARGET OF COMMUNIST EFFORTS AT INFILTRATION.  SEE SCALES V.
UNITED STATES, 367 U.S. 203, 235, 245, 249 N. 26, 251, 255-256. 

GIVEN THE UNSOUNDNESS OF THE BASIC PREMISE UNDERLYING THE COURT'S
HOLDING AS TO THE ABSENCE OF "NEXUS," THIS DECISION SURELY FALLS OF ITS
OWN WEIGHT.  FOR UNLESS "NEXUS" REQUIRES AN INVESTIGATING AGENCY TO
PROVE IN ADVANCE THE VERY THINGS IT IS TRYING TO FIND OUT, I DO NOT
UNDERSTAND HOW IT CAN BE SAID THAT THE INFORMATION PRELIMINARILY
DEVELOPED BY THE COMMITTEE'S INVESTIGATOR WAS NOT SUFFICIENT TO
SATISFY, UNDER ANY REASONABLE TEST, THE REQUIREMENT OF "NEXUS." 

APART FROM THIS, THE ISSUE OF "NEXUS" IS SURELY LAID AT REST BY THE
N.A.A.C.P.'S OWN "ANIT-COMMUNISM" RESOLUTION, FIRST ADOPTED IN 1950,
WHICH PETITIONER HAD VOLUNTARILY FURNISHED THE COMMITTEE BEFORE THE
CURTAIN CAME DOWN ON HIS EXAMINATION:

   "ANTI-COMMUNISM 

"WHEREAS, CERTAIN BRANCHES OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE ARE BEING ROCKED BY INTERNAL CONFLICTS
BETWEEN GROUPS WHO FOLLOW THE COMMUNIST LINE AND THOSE WHO DO NOT,
WHICH THREATEN TO DESTROY THE CONFIDENCE OF THE PUBLIC IN THE
ASSOCIATION AND WHICH WILL INEVITABLY RESULT IN ITS EVENTUAL
DISRUPTION; AND: 

"WHEREAS, IT IS APPARENT FROM NUMEROUS ATTACKS BY COMMUNISTS IN THEIR
OFFICIAL ORGANS 'THE DAILY WORKER' AND 'POLITICAL AFFAIRS' UPON
OFFICIALS OF THE ASSOCIATION THAT THERE IS A WELL-ORGANIZED, NATIONWIDE
CONSPIRACY BY COMMUNISTS EITHER TO CAPTURE OR SPLIT AND WRECK THE
NAACP; THEREFORE BE IT:

"RESOLVED, THAT THIS FORTY-FIRST CONVENTION OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE GO ON RECORD AS
UNEQUIVOCALLY CONDEMNING ATTACKS BY COMMUNISTS AND THEIR FELLOW
TRAVELERS UPON THE ASSOCIATION AND ITS OFFICIALS, AND IN ORDER TO
SAFEGUARD THE GOOD-NAME OF THE ASSOCIATION, PROMOTE AND DEVELOP UNITY,
ELIMINATE INTERNAL IDEOLOGICAL FRICTION, INCREASE THE MEMBERSHIP AND
BUILD THE NECESSARY POWER EFFECTIVELY TO WAGE THE FIGHT FOR CIVIL
RIGHTS, HEREWITH, CALL UPON, DIRECT AND INSTRUCT THE NATIONAL BOARD OF
DIRECTORS TO APPOINT A COMMITTEE TO INVESTIGATE AND STUDY THE
IDEOLOGICAL CONPOSITION AND TRENDS OF THE MEMBERSHIP AND LEADERSHIP OF
THE LOCAL UNITS WITH A VIEW TO DETERMINING CAUSES OF THE AFOREMENTIONED
CONFLICTS, CONFUSION AND LOSS OF MEMBERSHIP; BE IT FURTHER: 

"RESOLVED, THAT THIS CONVENTION GO ON RECORD AS DIRECTING AND
INSTRUCTING THE BOARD OF DIRECTORS TO TAKE THE NECESSARY ACTION TO
ERADICATE SUCH INFILTRATION, AND IF NECESSARY TO SUSPEND AND
REORGANIZE, OR LIFT THE CHARTER AND EXPEL ANY UNIT, WHICH, IN THE
JUDGMENT OF THE BOARD OF DIRECTORS, UPON A BASIS OF THE FINDINGS OF THE
AFOREMENTIONED INVESTIGATION AND STUDY OF LOCAL UNITS COMES UNDER
COMMUNIST OR OTHER POLITICAL CONTROL AND COMBINATION." 

IT HARDLY MEETS THE POINT AT ISSUE TO SUGGEST, AS THE COURT DOES
(ANTE, P. 554), THAT THE RESOLUTION ONLY SERVES TO SHOW THAT THE MIAMI
BRANCH WAS IN FACT FREE OF ANY COMMUNIST INFLUENCES - UNLESS SELF
INVESTIGATION IS DEEMED CONSTITUTIONALLY TO BLOCK OFFICIAL INQUIRY. 

                              II. 

I ALSO FIND IT DIFFICULT TO SEE HOW THIS CASE REALLY PRESENTS ANY
SERIOUS QUESTION AS TO INTERFERENCE WITH FREEDOM OF ASSOCIATION.  GIVEN
THE WILLINGNESS OF THE PETITIONER TO TESTIFY FROM RECOLLECTION AS TO
INDIVIDUAL MEMBERSHIPS IN THE LOCAL BRANCH OF THE N.A.A.C.P., THE
GERMANENESS OF THE MEMBERSHIP RECORDS TO THE SUBJECT MATTER OF THE
COMMITTEE'S INVESTIGATION, AND THE LIMITED PURPOSE FOR WHICH THEIR USE
WAS SOUGHT - AS AN AID TO REFRESHING THE WITNESS' RECOLLECTION,
INVOLVING THEIR DIVULGENCE ONLY TO THE PETITIONER HIMSELF (SUPRA, PP.
577-578) - THIS CASE OF COURSE BEARS NO RESEMBLANCE WHATEVER TO NAACP
V. ALABAMA, 357 U.S. 449, OR BATES V. LITTLE ROCK, 361 U.S. 516.  IN
BOTH OF THOSE CASES THE STATE HAD SOUGHT GENERAL DIVULGENCE OF LOCAL
N.A.A.C.P. MEMBERSHIP LISTS WITHOUT ANY SHOWING OF A JUSTIFYING STATE
INTEREST.  IN EFFECT WHAT WE ARE ASKED TO HOLD HERE IS THAT THE
PETITIONER HAD A CONSTITUTIONAL RIGHT TO GIVE ONLY PARTIAL OR
INACCURATE TESTIMONY, AND THAT INDEED SEEMS TO ME THE TRUE EFFECT OF
THE COURT'S HOLDING TODAY. 

I HAVE SCRUTINIZED THIS RECORD WITH CARE TO ASCERTAIN WHETHER ANY
UNFAIRNESS IN THE COMMITTEE'S PROCEEDINGS COULD BE DETECTED.  I CAN
FIND NONE.  IN THE QUESTIONING AND TREATMENT OF WITNESSES, EXPLANATIONS
OF PERTINENCY, RULINGS, ON OBJECTIONS, AND GENERAL CONDUCT OF THE
INQUIRY, I PERCEIVE NOTHING IN THIS RECORD WHICH SAVORS OF OTHER THAN A
DECOROUS ATTITUDE ON THE PART OF THE COMMITTEE AND A LAWYERLIKE AND
CONSIDERATE DEMEANOR ON THE PART OF ITS COUNSEL.  NOR DO I FIND IN THE
OPINION OF THE FLORIDA SUPREME COURT THE SLIGHTEST INDICATION OF
ANYTHING OTHER THAN A CONSCIENTIOUS APPLICATION OF THE CONSTITUTIONAL
PRINCIPLES GOVERNING CASES SUCH AS THIS. 

THERE CAN BE NO DOUBT THAT THE JUDGING OF CHALLENGED RESPECTING
LEGISLATIVE OR EXECUTIVE INVESTIGATIONS IN THIS SENSITIVE AREA DEMANDS
THE UTMOST CIRCUMSPECTION ON THE PART OF THE COURTS, AS INDEED THE
FLORIDA SUPREME COURT HAD ITSELF RECOGNIZED.  SEE GRAHAM V. FLORIDA
LEGISLATIVE INVESTIGATION COMM., 126 SO. 2D 133, 135.  BUT THIS ALSO
SURELY CARRIES WITH IT THE RECIPROCAL RESPONSIBILITY OF RESPECTING
LEGITIMATE STATE AND LOCAL AUTHORITY IN THIS FIELD.  WITH ALL RESPECT,
I THINK THAT IN DECIDING THIS CASE AS IT HAS THE COURT HAS FAILED FULLY
TO KEEP IN MIND THAT RESPONSIBILITY.    I WOULD AFFIRM. 

FN1  WE ARE TOLD BY COUNSEL FOR THE COMMITTEE, WITHOUT CONTRADICTION
BY THE PETITIONER, THAT THE INVESTIGATIONS OF THE PREDECESSOR
COMMITTEES HAVE INCLUDED THE ACTIVITIES OF SUCH PERSONS AND
ORGANIZATIONS AS JOHN CASPER, THE KU KLUX KLAN, AND THE SEABOARD WHITE
CITIZENS COUNCIL. 

FN2  THE COMMITTEE'S INFORMATION AS TO SUCH MEMBERSHIP HAS NOT BEEN
CHALLENGED IN THIS CASE. 

MR. JUSTICE WHITE DISSENTING. 

IN MY VIEW, THE OPINION OF THE COURT REPRESENTS A SERIOUS LIMITATION
UPON THE COURT'S PREVIOUS CASES DEALING WITH THIS SUBJECT MATTER AND
UPON THE RIGHT OF THE LEGISLATURE TO INVESTIGATE THE COMMUNIST PARTY
AND ITS ACTIVITIES.  ALTHOUGH ONE OF THE CLASSIC AND RECURRING
ACTIVITIES OF THE COMMUNIST PARTY IS THE INFILTRATION AND SUBVERSION OF
OTHER ORGANIZATIONS, EITHER OPENLY OR IN A CLANDESTINE MANNER, THE
COURT HOLDS THAT EVEN WHERE A LEGISLATURE HAS EVIDENCE THAT A
LEGITIMATE ORGANIZATION IS UNDER ASSAULT AND EVEN THOUGH THAT
ORGANIZATION IS ITSELF SOUNDING OPEN AND PUBLIC ALARM, AN INVESTIGATING
COMMITTEE IS NEVERTHELESS FORBIDDEN TO COMPEL THE ORGANIZATION OR ITS
MEMBERS TO REVEAL THE FACT, OR NOT, OF MEMBERSHIP IN THAT ORGANIZATION
OF NAMED COMMUNISTS ASSIGNED TO THE INFILTRATING TASK. 

WHILE THE COURT PURPORTS TO BE SAVING SUCH A CASE FOR LATER
CONSIDERATION, IT IS DIFFICULT FOR ME TO UNDERSTAND HOW UNDER TODAY'S
DECISION A COMMUNIST IN THE PROCESS OF PERFORMING HIS ASSIGNED JOB
COULD BE REQUIRED TO DIVULGE NOT ONLY HIS MEMBERSHIP IN THE COMMUNIST
PARTY BUT HIS MEMBERSHIP OR ACTIVITIES IN THE TARGET ORGANIZATION AS
WELL.  THE COURT FAILS TO ARTICULATE WHY THE STATE'S INTEREST IS ANY
THE MORE COMPELLING OR THE ASSOCIATIONAL RIGHTS ANY THE LESS ENDANGERED
WHEN A KNOWN COMMUNIST IS ASKED WHETHER HE BELONGS TO A PROTECTED
ASSOCIATION THAN HERE WHEN THE ORGANIZATION IS ASKED TO CONFIRM OR DENY
THAT MEMBERSHIP.  AS I READ THE COURT'S OPINION THE EXPOSED COMMUNIST
MIGHT WELL, IN THE NAME OF THE ASSOCIATIONAL FREEDOM OF THE LEGITIMATE
ORGANIZATION AND OF ITS MEMBERS INCLUDING HIMSELF, SUCCESSFULLY SHIELD
HIS ACTIVITIES FROM LEGISLATIVE INQUIRY.  THUS TO ME THE DECISION TODAY
REPRESENTS A MARKED DEPARTURE FROM THE PRINCIPLES OF BARENBLATT V.
UNITED STATES, 360 U.S. 109, AND LIKE CASES. 

ON THE OTHER HAND, SHOULD A LEGISLATURE OBTAIN OSTENSIBLY RELIABLE
INFORMATION ABOUT THE PENETRATION OF COMMUNISTS INTO A PARTICULAR
ORGANIZATION, INFORMATION WHICH IN THE COURSE OF THINGS WOULD BE PLACED
ON PUBLIC RECORD LIKE THE TESTIMONY HERE, THERE COULD NO LONGER BE A
WEIGHTY INTEREST ON THE PART OF THAT ORGANIZATION TO REFUSE TO VERIFY
THAT INFORMATION OR TO BRAND IT AS FALSE.  THIS IS PARTICULARLY TRUE
HERE WHERE AN OFFICER OF THE ASSOCIATION IS WILLING TO IDENTIFY PERSONS
FROM MEMORY AND WHERE THE ORGANIZATION ITSELF HAS CALLED UPON ITS OWN
MEMBERS TO ROOT OUT COMMUNISTS WHO ARE BENT UPON USING THE ASSOCIATION
TO SERVE THE GOALS OF THE COMMUNIST PARTY.  UNBENDING RESISTANCE TO
ANSWERING, ONE WAY OR THE OTHER, A LEGISLATIVE COMMITTEE'S LIMITED
INQUIRIES IN THE FACE OF ALREADY PUBLIC INFORMATION TO THE SAME EFFECT
REDUCES THE ASSOCIATION'S INTEREST IN SECRECY TO STERILE DOCTRINE.  I
WOULD HAVE THOUGHT THAT THE FREEDOM OF ASSOCIATION WHICH IS AND SHOULD
BE ENTITLED TO CONSTITUTIONAL PROTECTION WOULD BE PROMOTED, NOT
HINDERED, BY DISCLOSURE WHICH PERMITS MEMBERS OF AN ORGANIZATION TO
KNOW WITH WHOM THEY ARE ASSOCIATING AND AFFORDS THEM THE OPPORTUNITY TO
MAKE AN INTELLIGENT CHOICE AS TO WHETHER CERTAIN OF THEIR ASSOCIATES
WHO ARE COMMUNISTS SHOULD BE ALLOWED TO CONTINUE THEIR MEMBERSHIP.  IN
THESE CIRCUMSTANCES, I CANNOT JOIN THE COURT IN ATTACHING GREAT WEIGHT
TO THE ORGANIZATION'S INTEREST IN CONCEALING THE PRESENCE OF
INFILTRATING COMMUNISTS, IF SUCH BE THE CASE. 

THE NET EFFECT OF THE COURT'S DECISION IS, OF COURSE, TO INSULATE
FROM EFFECTIVE LEGISLATIVE INQUIRY AND PREVENTIVE LEGISLATION THE TIME
PROVEN SKILLS OF THE COMMUNIST PARTY IN SUBVERTING AND EVENTUALLY
CONTROLLING LEGITIMATE ORGANIZATIONS.  UNTIL SUCH A GROUP, CHOSEN AS AN
OBJECT OF COMMUNIST PARTY ACTION, HAS BEEN EFFECTIVELY REDUCED TO
VASSALAGE, LEGISLATIVE BODIES MAY SEEK NO INFORMATION FROM THE
ORGANIZATION UNDER ATTACK BY DUTY-BOUND COMMUNISTS.  WHEN THE JOB HAS
BEEN DONE AND THE LEGISLATIVE COMMITTEE CAN PROVE IT, IT THEN HAS THE
HOLLOW PRIVILEGE OF RECORDING ANOTHER VICTORY FOR THE COMMUNIST PARTY,
WHICH BOTH CONGRESS AND THIS COURT HAVE FOUND TO BE AN ORGANIZATION
UNDER THE DIRECTION OF A FOREIGN POWER, DEDICATED TO THE OVERTHROW OF
THE GOVERNMENT IF NECESSARY BY FORCE AND VIOLENCE.  I RESPECTFULLY
DISSENT. 
..END :

















BUSH V. TEXAS 372 U.S. 586 


NO. 511.  ARGUED FEBRUARY 26, 1963.  - DECIDED MARCH 25, 1963.  -
REPORTED BELOW:  172 TEX.  CR. R. 54, 353 S.W.2D 855. 


AT HIS TRIAL IN A TEXAS STATE COURT FOR THE CRIME OF FELONY THEFT,
PETITIONER PLEADED NOT GUILTY BY REASON OF INSANITY; BUT HE WAS
CONVICTED AND SENTENCED TO IMPRISONMENT.  THE TEXAS COURT OF CRIMINAL
APPEALS AFFIRMED.  SUBSEQUENTLY, WHILE PETITIONER'S CLAIM THAT HIS
CONVICTION VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
WAS PENDING IN THIS COURT, HE WAS SENT TO A MENTAL HOSPITAL, WHERE IT
WAS FOUND THAT HE SUFFERS SIMPLE SCHIZOPHRENIA AND HAD BEEN ONLY
PARTLY, OR NOT AT ALL, RESPONSIBLE FOR HIS ACTS FOR MANY YEARS.  THE
STATE BROUGHT THIS INFORMATION TO THE ATTENTION OF THIS COURT; AND THE
ASSISTANT STATE ATTORNEY GENERAL STATED ON ORAL ARGUMENT THAT, IF THE
JUDGMENT AFFIRMING PETITIONER'S CONVICTION WERE VACATED, HE WOULD FAVOR
GRANTING PETITIONER A NEW TRIAL.  HELD:  THE JUDGMENT AFFIRMING
PETITIONER'S CONVICTION IS VACATED AND THE CASE IS REMANDED FOR
CONSIDERATION IN THE LIGHT OF SUBSEQUENT DEVELOPMENTS.  PP. 586-590. 

BUSH V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THIS CASE RAISES THE QUESTIONS OF DUE PROCESS UNDER THE FOURTEENTH
AMENDMENT GROWING OUT OF THE CONVICTION OF PETITIONER, AN INDIGENT, FOR
THE CRIME FELONY THEFT.  UPON PROOF OF TWO PRIOR THEFT CONVICTIONS,
PETITIONER WAS SENTENCED TO LIFE IMPRISONMENT AS AN HABITUAL OFFENDER. 
THE TEXAS COURT OF CRIMINAL APPEALS AFFIRMED.  172 TEX. CR. R. 54, 353
S.W.2D 855 (1962).  WE GRANTED CERTIORARI.  371 U.S. 859. 

PETITIONER, WHO IN 1924 HAD BEEN ADJUDGED INSANE, ENTERED A PLEA OF
NOT GUILTY BY REASON OF INSANITY.  HIS CLAIMS OF DENIAL OF DUE PROCESS
ARE BASED ON (1) THE TRIAL COURT'S REFUSAL PRIOR TO TRIAL EITHER TO
SEND HIM TO A STATE MENTAL INSTITUTION FOR OBSERVATION AND DIAGNOSIS
BEFORE REQUIRING HIM TO STAND TRIAL OR TO APPOINT AND PAY FOR A
COMPETENT PSYCHIATRIST FOR THAT PURPOSE; AND (2) THE ALLEGED DENIAL BY
THE TRIAL COURT OF ADEQUATE TIME FOR PROPER EXAMINATION AND DIAGNOSIS
BY A PSYCHOLOGIST WHO APPEARED AT THE TRIAL UPON REQUEST OF
PETITIONER'S COUNSEL. 

THREE DAYS BEFORE ARGUMENT HERE THE STATE COMMENDABLY FILED A
"SUPPLEMENTAL BRIEF FOR THE RESPONDENT" CALLING TO THE COURT'S
ATTENTION THE FOLLOWING "DIAGNOSTIC SUMMARY," RELATING TO THE
PETITIONER'S MENTAL CONDITION, PREPARED BY THE PSYCHIATRIC RESIDENT OF
THE HOUSTON STATE PSYCHIATRIC INSTITUTE AT HOUSTON: 

"WYNNE TREATMENT CENTER. 

"DIAGNOSTIC SUMMARY. 

"NAME:  BUSH, JAMES E. TDC NO. 165754. 

"LOCATION:  WYNNE FARM. 

"I, THE UNDERSIGNED, DOCTOR A. HUG, EXAMINED ON THIS DATE, JAMES E.
BUSH, TDC #165754, AN INMATE OF THE WYNNE FARM AND CAME TO THE
FOLLOWING CONCLUSIONS. 

"JAMES IS A 64 YEAR OLD WHITE WIDOWER.  HE WAS BORN AND RAISED IN A
STABLE FARM FAMILY SITUATION, TOGETHER WITH TWO BROTHERS AND FOUR
SISTERS.  NONE OF HIS IMMEDIATE RELATIVES AT ANY TIME WERE IN
PSYCHIATRIC CARE.  HE ATTENDED THE THIRD GRADE AND LATER WORKED MAINLY
AS A BLACKSMITH.  HE WAS MARRIED ONCE AND HAS TWO CHILDREN.  AS FAR AS
WE KNOW FROM HIS RECORD HE WAS SINCE 1937 SEVEN TIMES IN PRISON FOR
VARIOUS OFFENSES WITH ALSO EIGHT ESCAPES LISTED.  ACCORDING TO THE SAME
RECORD HE WAS IN TERRELL STATE HOSPITAL IN 1924 FOR MENTAL
OBSERVATION. 

"ON EXAMINATION PATIENT SHOWED MARKED PSYCHOMOTOR RETARDATION.  HE
APPEARS TO BE EXTREMELY WITHDRAWN, AUTISTIC, ISOLATED FROM REALITY AND
ENCAPSULATED IN HIMSELF.  HE APPEARS TO HAVE NO DRIVE OR INTERESTS.  IN
HIS VERBAL PRODUCTIONS HE IS VERY VAGUE.  HE IS ONLY POORLY ORIENTED,
GIVING THE DATE AS SOMEWHERE IN JANUARY OF 1963 AND SHOWED MARKED
DIFFICULTIES IN RECALLING HIS PAST HISTORY OR ATTENDING TO ANY TESTS OF
HIS PRESENT MEMORY CAPACITY.  HE SEEMS TO BE OF LOW BORDERLINE
INTELLIGENCE.  AS REASON FOR HIS VARIOUS CRIMES HE GIVES - 'I ALWAYS
LIKE TO HELP SOMEBODY.'  THERE ARE DEFINITE LAPSES IN HIS TREND OF
THOUGHT SO THAT HE AT TIMES APPEARS TO BE ODD IN HIS STATEMENTS OR
DIFFICULT TO UNDERSTAND, AS HE, ON THE OTHER HAND, SOMETIMES HAS
DIFFICULTIES TO UNDERSTAND THE EXAMINER. 

"ALL OF THE ABOVE EVIDENCE IF NOT OTHERWISE STATED WAS GIVEN BY JAMES
DURING A FORTY-FIVE MINUTE INTERVIEW. 

"FROM JAMES' HISTORY OF A SOCIAL FAILURE AND FROM THE PRESENT
EVIDENCE, MAINLY:  MARKED AUTISM AND INCOHERENT THINKING, WE COME TO
THE CONCLUSION THAT JAMES SUFFERS FROM SIMPLE SCHIZOPHRENIA. 

"IT IS COMMON KNOWLEDGE THAT PEOPLE WHO SUFFER FROM SIMPLE
SCHIZOPHRENIA MAY GO THROUGH LIFE WITHOUT CALLING THE ATTENTION OF A
PSYCHIATRIST, SINCE THEY MAY BE DISTINGUISHED AS HABITUAL CRIMINALS,
ALCOHOLICS, VAGABONDS, ETC.  THEY ALL TEND TO RUN A PROTRACTED COURSE
WHICH PRACTICALLY ALWAYS STARTS EARLY IN LIFE.  THEY MAY DETERIORATE,
BUT USUALLY THEY GO ON WITHOUT MUCH DETERIORATION.  WE HAVE NO DOUBTS
ABOUT THE DIAGNOSIS OF JAMES, THE ONLY QUESTION WE HAVE IS HOW MUCH OF
THE PSYCHOTIC PICTURE (MEMORY DIFFICULTIES) AT THE PRESENT TIME MAY BE
DUE TO ORGANIC DETERIORATION, THROUGH, FOR INSTANCE, ARTERIOSCLEROSIS
OR TO HIS AUTISM AND LACK OF INTEREST.  ON THE ASSUMPTION OF THE ABOVE
DIAGNOSIS WE WOULD HAVE TO ASSUME THAT JAMES WAS ONLY PARTLY OR NOT AT
ALL RESPONSIBLE FOR HIS ACTS, FOR VERY MANY YEARS. 

"ADOLF HUG, M.D. 

"PSYCHIATRIC RESIDENT, HOUSTON STATE PSYCHIATRIC INSTITUTE, HOUSTON,
TEXAS. 

"BORN 1926 IN ZURICH, SWITZERLAND. 

"TRAINED AT UNIVERSITY OF ZURICH. 

"HOLDING SWISS STATE BOARD AND BOARD FOR PSYCHIATRY IN SWITZERLAND. 

"AMERICAN TRAINING:  ONE YEAR INTERNSHIP, THREE YEARS PSYCHIATRIC
RESIDENCY. 

"AH:  RDM". 

AT ORAL ARGUMENT, WHEN THE ASSISTANT ATTORNEY GENERAL OF TEXAS WAS
AKSED THE VIEWS OF HIS OFFICE IN THE EVENT THE CASE SHOULD BE VACATED
AND REMANDED BY THIS COURT, THE FOLLOWING COLLOQUY TOOK PLACE: 

THE ASSISTANT ATTORNEY GENERAL: 

"  ...  IF THIS CASE WAS SENT BACK  ...  TO THE COURT OF CRIMINAL
APPEALS, MY PERSONAL POSITION, SPEAKING AS ASSISTANT ATTORNEY GENERAL
OF THE STATE OF TEXAS, WOULD BE THAT THE MAN SHOULD BE  ... EXAMINED IN
THIS HOSPITAL (WHERE HE IS PRESENTLY CONFINED AS A RESULT OF THE ABOVE
EXAMINATION) AND THAT EVIDENCE SHOULD BE PRESENTED TO THE TRIAL
COURT." 

THE CHIEF JUSTICE: 

"YOU WOULD GRANT HIM A NEW TRIAL?" 

THE ASSISTANT ATTORNEY GENERAL: 

"YES." 

WE OBSERVE THAT, AS A RULE OF CONSISTENT APPLICATION, "THIS COURT HAS
DECLINED TO ANTICIPATE A QUESTION OF CONSTITUTIONAL LAW IN ADVANCE OF
THE NECESSITY OF DECIDING IT."  PETERS V. HOBBY, 349 U.S. 331, 338
(1955).  SEE ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE CO., 329 U.S. 129,
136 (1946).  AT THE TIME ITS DECISION WAS RENDERED, THE COURT OF
CRIMINAL APPEALS HAD AVAILABLE TO IT NEITHER THE ABOVE PSYCHIATRIST'S
REPORT NOR THE VIEW OF THE ASSISTANT ATTORNEY GENERAL REGARDING
DISPOSITION OF THE CASE.  APPORPRIATE FEDERAL-STATE RELATIONS AND
PROPER REGARD FOR STATE PROCESSES REQUIRE THAT TEXAS' HIGHEST CRIMINAL
COURT BE AFFORDED THE OPPORTUNITY TO PASS UPON THE CASE WITH THESE
LATER DEVELOPMENTS BEFORE IT. 

THE JUDGMENT OF THE TEXAS COURT OF CRIMINAL APPEALS IS THEREFORE
VACATED, AND THE CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF
SUBSEQUENT DEVELOPMENTS.  REVERSED AND REMANDED. 
..END :





MICHIGAN NATIONAL BANK V. ROBERTSON 372 U.S. 591 


NO. 55.  DECIDED MARCH 25, 1963.* - REPORTED BELOW:  172 NEB. 370, 385,
109 N.W.2D 716, 739. 

*TOGETHER WITH NO. 64, MICHIGAN NATIONAL BANK V. HILLS ET UX., ALSO
ON PETITION FOR WRIT OF CERTIORARI TO THE SAME COURT. 


RESPONDENTS PURCHASED HOUSE TRAILERS IN NEBRASKA AND EXECUTED NOTES
AND LIEN INSTRUMENTS TO THE LOCAL DEALER, WHO NEGOTIATED THEM TO
PETITIONER, A NATIONAL BANK LOCATED IN MICHIGAN.  SUBSEQUENTLY,
RESPONDENTS SUED PETITIONER IN A NEBRASKA STATE COURT, ALLEGING
VIOLATIONS OF THE NEBRASKA INSTALLMENT LOAN ACT AND CHALLENGING THE
VALIDITY OF THE TRANSACTIONS AND THE DOCUMENTS EXECUTED IN CONNECTION
THEREWITH.  PETITIONER CLAIMED THAT IT COULD NOT BE SUED IN NEBRASKA
BECAUSE OF 12 U.S.C. SEC. 94, WHICH PROVIDES THAT ACTIONS AGAINST A
NATIONAL BANK "MAY BE HAD" IN ANY STATE COURT IN THE COUNTY OR CITY IN
WHICH IT IS LOCATED.  THIS CONTENTION WAS REJECTED BY THE NEBRASKA
COURTS, AND RESPONDENTS OBTAINED JUDGMENTS FOR THE RELIEF REQUESTED. 
HELD:  CERTIORARI WAS GRANTED; THE JUDGMENTS ARE VACATED; AND THE
CAUSES ARE REMANDED FOR FURTHER PROCEEDINGS.  PP.  591-594. 

(A)  UNDER MERCANTILE NAT. BANK V. LANGDEAU, 371 U.S. 555, 12 U.S.C.
SEC. 94 APPLIES TO THIS SUIT.   P. 593. 

(B)  IN THE CIRCUMSTANCES, THIS IS NOT A LOCAL ACTION WITHIN THE
MEANING OF CASEY V. ADAMS, 102 U.S. 66.  PP. 593-594. 

(C)  THIS SUIT CANNOT BE MAINTAINED IN NEBRASKA UNLESS PETITIONER HAS
WAIVED THE BENEFIT OF 12 U.S.C. SEC. 94.  P. 594. 

MICHIGAN NATIONAL BANK V. ROBERTSON ET UX. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

PER CURIAM. 

RESPONDENTS IN THESE TWO CASES PURCHASED HOUSE TRAILERS IN NEBRASKA,
EXECUTING AND DELIVERING NOTES AND LIEN INSTRUMENTS TO THE LOCAL DEALER
WHO IN TRUN NEGOTIATED THEM TO THE PETITIONER, A NATIONAL BANK LOCATED
IN MICHIGAN.  RESPONDENTS HAVE NOW SUED PETITIONER, ALLEGING VIOLATIONS
OF THE NEBRASKA INSTALLMENT LOAN ACT AND CHALLENGING THE VALIDITY OF
THE TRANSACTIONS AND OF THE DOCUMENTS EXECUTED IN CONNECTION
THEREWITH.  (FN1)  PETITIONER CLAIMED THAT IT COULD NOT BE SUED IN
NEBRASKA BECAUSE OF 12 U.S.C. SEC. 94 (FN2) AND THAT 12 U.S.C. SEC. 86,
THE FEDERAL USURY PROVISION, (FN3) APPLIED TO THE EXCLUSION OF THE
NEBRASKA STATUTES.  THESE CONTENTIONS WERE REJECTED BY THE NEBRASKA
COURTS AND RESPONDENTS OBTAINED JUDGMENTS FOR ALL OF THE RELIEF
REQUESTED.  (FN4)  THE PETITIONS FOR CERTIORARI PLACE BEFORE THE COURT
ONLY THE APPLICABILITY OF 12 U.S.C. SEC. 94 AND WE CONFINE OURSELVES TO
THAT MATTER. 

ALL OF THE REASONS, SAVE ONE, ADVANCED BY THE NEBRASKA SUPREME COURT
FOR NOT APPLYING 12 U.S.C. SEC. 94 IN THESE CASES WE HAVE ALREADY
REJECTED IN MERCANTILE NAT. BANK V. LANGDEAU, 371 U.S. 555.  THE
ADDITIONAL GROUND RELIED UPON IN NO. 55 WAS THAT "THE INSTANT ACTION
WAS A LOCAL ACTION, NOT A TRANSITORY ACTION, SEE SEC. 25-404 R.R.S.
1943; (FN5) SEC. 45-154, R.R.S. 1943," 172 NEB. 385, 394, 109 N.W.2D
716, 722, AND THUS WITHIN THE EXCEPTION TO 12 U.S.C. SEC. 94 CARVED OUT
BY CASEY V. ADAMS, 102 U.S. 66.  THIS GROUND IS LIKEWISE UNTENABLE. 
THE APPLICABLE NEBRASKA VENUE STATUTE ON ITS FACE ALLOWS SUIT IN MORE
THAN ONE COUNTY AND, IN THE CASE OF FOREIGN CORPORATIONS SUCH AS
PETITIONER, NEBRASKA REVISED STATUTE SEC. 25-408 (FN6) APPEARS TO
PERMIT SUIT IN ANY COUNTY WHERE THE DEFENDANT CAN BE FOUND.  BY ITS
VERY NATURE, THIS IS A CONSIDERABLY DIFFERENT KIND OF SUIT FROM THE ONE
TO DETERMINE INTERESTS IN PROPERTY AT ITS SITUS WHICH WAS INVOLVED IN
CASEY V. ADAMS.  MOREOVER, ALTHOUGH SEC. 94 BY ITS TERMS IS APPLICABLE
TO ALL ACTIONS AGAINST NATIONAL BANKS, WHEN IT WAS RE-ENACTED IN THE
ACT OF FEBRAURY 18, 1875, C. 80, 18 STAT.  320, IT WAS APPENDED TO THE
PROVISIONS DEALING WITH USURY ACTIONS AGAINST NATIONAL BANKS.  SEE
MERCANTILE NAT. BANK V. LANGDEAU, SUPRA, AT 561 AND 568.  WE THINK
CONGRESS CLEARLY INTENDED 12 U.S.C. SEC. 94 TO APPLY TO SUITS INVOLVING
USURY AND THE RELATED MATTERS AT ISSUE HERE. 

THE RESPONDENTS, NEVERTHELESS, WOULD HAVE US AFFIRM ON ANOTHER
GROUND, NAMELY, THAT THE DOCUMENTS IN QUESTION HERE PROVIDE THAT ALL
MATTERS RELATING TO EXECUTION, INTERPRETATION, VALIDITY AND PERFORMANCE
ARE TO BE DETERMINED BY THE LAW OF THE STATE OF NEBRASKA AND THAT THE
BANK HAS THEREFORE WAIVED THE BENEFITS OF SEC. 94, AS IT MAY DO.
CHARLOTTE NAT. BANK V. MORGAN, 132 U.S. 141.  BUT WE SHOULD NOT DEAL
WITH THIS MATTER IN THE FIRST INSTANCE.  THE NEBRASKA COURTS DO NOT
APPEAR TO HAVE ADDRESSED THEMSELVES TO THIS PARTICULAR ISSUE AND, IF
THE QUESTION IS STILL OPEN THERE, THEY MAY OR MAY NOT DECIDE THAT UNDER
THE APPLICABLE LAW, THE CONTRACTUAL PROVISION RELIED UPON REACHES THE
ISSUE OF VENUE IN THE EVENT OF SUIT. 

THE PETITIONS FOR CERTIORARI ARE GRANTED, THE JUDGMENTS ARE VACATED
AND THE CAUSES ARE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  "VIOLATION OF SECTIONS 45-114 TO 45-155 IN CONNECTION WITH ANY
INDEBTEDNESS, HOWEVER ACQUIRED, SHALL RENDER SUCH INDEBTEDNESS VOID AND
UNCOLLECTIBLE."  NEB. REV. STAT.  SEC. 45-155; SEE STATE EX REL. BECK
V. ASSOCIATES DISCOUNT CORP., 168 NEB. 298, 96 N.W.2D 55. 

FN2  VENUE OF SUITS. 

"ACTIONS AND PROCEEDINGS AGAINST ANY ASSOCIATION UNDER THIS CHAPTER
MAY BE HAD IN ANY DISTRICT OR TERRITORIAL COURT OF THE UNITED STATES
HELD WITHIN THE DISTRICT IN WHICH SUCH ASSOCIATION MAY BE ESTABLISHED,
OR IN ANY STATE, COUNTY, OR MUNICIPAL COURT IN THE COUNTY OR CITY IN
WHICH SAID ASSOCIATION IS LOCATED HAVING JURISDICTION IN SIMILAR
CASES." 

FN3  USURIOUS INTEREST; PENALTY FOR TAKING; LIMITATIONS. 

"THE TAKING, RECEIVING, RESERVING, OR CHARGING A RATE OF INTEREST
GREATER THAN IS ALLOWED BY SECTION 85 OF THIS TITLE, WHEN KNOWINGLY
DONE, SHALL BE DEEMED A FORFEITURE OF THE ENTIRE INTEREST WHICH THE
NOTE, BILL OR OTHER EVIDENCE OF DEBT CARRIES WITH IT, OR WHICH HAS BEEN
AGREED TO BE PAID THEREON.  IN CASE THE GREATER RATE OF INTEREST HAS
BEEN PAID, THE PERSON BY WHOM IT HAS BEEN PAID, FOR HIS LEGAL
REPRESENTATIVES, MAY RECOVER BACK, IN AN ACTION IN THE NATURE OF AN
ACTION OF DEBT, TWICE THE AMOUNT OF THE INTEREST THUS PAID FROM THE
ASSOCIATION TAKING OR RECEIVING THE SAME: PROVIDED, THAT SUCH ACTION IS
COMMENCED WITHIN TWO YEARS FROM THE TIME THE USURIOUS TRANSACTION
OCCURED." 

THE PRECEDING SECTION, 12 U.S.C. SEC. 85, PROVIDES IN PART: 

RATE OF INTEREST ON LOANS, DISCOUNTS, AND PURCHASES. 

"ANY ASSOCIATION MAY TAKE, RECEIVE, RESERVE, AND CHARGE ON ANY LOAN
OR DISCOUNT MADE, OR UPON ANY NOTES, BILLS OF EXCHANGE, OR OTHER
EVIDENCES OF DEBT, INTEREST AT THE RATE ALLOWED BY THE LAWS OF THE
STATE, TERRITORY, OR DISTRICT WHERE THE BANK IS LOCATED, OR AT A RATE
OF 1 PER CENTUM IN EXCESS OF THE DISCOUNT RATE ON NINETY-DAY COMMERCIAL
PAPER IN EFFECT AT THE FEDERAL RESERVE BANK IN THE FEDERAL RESERVE
DISTRICT WHERE THE BANK IS LOCATED, WHICHEVER MAY BE THE GREATER, AND
NO MORE, EXCEPT THAT WHERE BY THE LAWS OF ANY STATE A DIFFERENT RATE IS
LIMITED FOR BANKS ORGANIZED UNDER STATE LAWS, THE RATE SO LIMITED SHALL
BE ALLOWED FOR ASSOCIATIONS ORGANIZED OR EXISTING IN ANY SUCH STATE
UNDER THIS CHAPTER." 

FN4  RESPONDENTS SOUGHT THE RETURN OF ALL INSTALLMENTS HERETOFORE
PAID TO THE BANK, A DECLARATION THAT THE NOTE, CONTRACT AND MORTGAGE
WERE VOID AND UNCOLLECTIBLE AND AN ORDER DIRECTING THE BANK TO DELIVER
THE PURCHASERS A CERTIFICATE OF TITLE FREE AND CLEAR OF ENCUMBRANCES. 

FN5  25-404.  "LOCAL ACTIONS INVOLVING STATUTORY LIABILITY, ACTS, AND
BONDS OF PUBLIC OFFICERS.  ACTIONS FOR THE FOLLOWING CAUSES MUST BE
BROUGHT IN THE COUNTY WHERE THE CAUSE OR SOME PART THEREOF AROSE:  (1)
AN ACTION FOR THE RECOVERY OF A FINE, FORFEITURE, OR PENALTY, IMPOSED
BY A STATUTE  ... ." 

FN6  "AN ACTION, OTHER THAN ONE OF THOSE MENTIONED IN SECTIONS 25-401
TO 25-403, AGAINST A NONRESIDENT OF THIS STATE OR A FOREIGN CORPORATION
MAY BE BROUGHT IN ANY COUNTY IN WHICH THERE MAY BE PROPERTY OF, OR
DEBTS OWING TO SAID DEFENDANT, OR WHERE SAID DEFENDANT MAY BE FOUND;
BUT IF SUCH DEFENDANT BE A FOREIGN INSURANCE COMPANY, THE ACTION MAY
BROUGHT IN ANY COUNTY WHERE THE CAUSE, OR SOME PART THEREOF, AROSE." 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

I CONCUR IN THE COURT'S REMAND OF THESE CASES, AS I AGREE THAT, EVEN
IF THE BANK COULD UNDER 12 U.S.C. SEC. 94 BE SUED ONLY IN THE COUNTY
WHERE IT IS LOCATED, THE BANK MAY WAIVE THE BENEFITS OF THE STATUTE. 
CHARLOTTE NAT. BANK V. MORGAN, 132 U.S. 141.  BUT I CONCUR ONLY IN THE
RESULT, SINCE I AM IN TOTAL DISAGREEMENT WITH THE COURT'S
INTERPRETATION OF SEC. 94 AND WOULD PREFER TO AFFIRM THE JUDGMENTS
BELOW HOLDING THAT THE MICHIGAN NATIONAL BANK CAN BE SUED IN THE
NEBRASKA COURTS.  EACH LAWSUIT GREW OUT OF A BUSINESS TRANSACTION IN
WHICH THE MICHIGAN BANK FINANCED A NEBRASKA RESIDENT'S PURCHASE OF A
HOUSE TRAILER FROM A NEBRASKA DEALER.  NOW, UNDER THIS COURT'S HOLDING,
THESE PEOPLE IN NEBRASKA WHO ALLEGE THAT THEIR CONTRACTS WERE USURIOUS
UNDER NEBRASKA LAW MUST, UNLESS THE BANK BE HELD TO HAVE WAIVED
STATUTORY VENUE, GO ALL THE WAY TO MICHIGAN TO TRY TO VINDICATE THEIR
RIGHTS AGAINST THE BANK.  THIS HARSH RESULT IS HELD TO BE COMPELLED BY
A PROVISION OF THE ACT OF JUNE 3, 1864, C. 106, SEC. 30, 13 STAT. 108,
NOW CODIFIED IN 12 U.S.C. SEC. 94.  I DO NOT KNOW OF A SINGLE ACT
CONGRESS HAS PASSED IN A CENTURY WHICH CLEARLY AND EXPLICITLY DENIES A
PERSON IN ONE STATE THE PRIVILEGE OF FILING SUIT IN HIS OWN STATE
AGAINST AN OUT-OF-STATE COMPANY WHERE SERVICE CAN BE OBTAINED AND WHERE
THE SUIT ARISES OUT OF A TRANSACTION WITHIN THE STATE.  AND I AM NOT
WILLING TO FIND SUCH A CONGRESSIONAL PURPOSE IN SEC. 94.  I REALIZE
THAT THIS COURT DID HOLD SEVERAL WEEKS AGO IN MERCANTILE NAT. BANK V.
LANGDEAU, 371 U.S. 555, THAT THIS STATUTE REQUIRES A SUIT IN A STATE
COURT AGAINST A NATIONAL BANK TO BE BROUGHT IN THE COUNTY WHERE THE
BANK IS LOCATED.  LANGDEAU MERELY REQUIRED THAT THE PLAINTIFF SUE IN
ONE COUNTY OF THE STATE RATHER THAN IN ANOTHER.  FORMAL LOGIC STRICTLY
APPLIED MIGHT CALL FOR EXPANSION OF THAT HOLDING TO COVER THE DIFFERENT
FACUTAL SITUATION HERE.  BUT THAT WOULD REQUIRE A PLAINTIFF TO GO TO
ANOTHER STATE HUNDREDS OF MILES FROM HOME TO BRING SUIT FOR A WRONG
DONE HIM IN A TRANSACTION IN HIS OWN STATE, A RESULT WHICH I CANNOT
BELIEVE CONGRESS INTENDED. 
..END :




















PETERSON V. ALLEN CIRCUIT COURT 372 U.S. 596 


NO. 415, MISC.  DECIDED MARCH 25, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


PETERSON V. ALLEN CIRCUIT COURT ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF LANE V. BROWN,
ANTE, P. 477. 
..END :















TAR ASPHALT TRUCKING CO. V. UNITED STATES 372 U.S. 596 


NO. 762.  DECIDED MARCH 25, 1963.  - 208 F. SUPP. 611, AFFIRMED. 


TAR ASPHALT TRUCKING CO., INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















TOWNSEND V. SAIN 372 U.S. 293 


NO. 8.  ARGUED FEBRUARY 19, 1962.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED OCTOBER 8-9, 1962.  - DECIDED
MARCH 18, 1963.  - 276 F.2D 324, REVERSED. 


IN A JURY TRIAL IN A STATE COURT, PETITIONER WAS CONVICTED OF MURDER
AND SENTENCED TO DEATH.  AFTER EXHAUSTING ALL STATE REMEDIES, HE
PETITIONED A FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS CORPUS,
CLAIMING THAT HIS CONVICTION VIOLATED THE FOURTEENTH AMENDMENT BECAUSE
OF THE ADMISSION IN EVIDENCE OF A CONFESSION OBTAINED WHILE HE WAS
UNDER THE INFLUENCE OF DRUGS, INCLUDING A "TRUTH SERUM," ADMINISTERED
BY A POLICE PHYSICIAN.  ALTHOUGH THE EVIDENCE WAS CONFLICTING, THE
STATE COURT HAD FILED NO OPINION, CONCLUSIONS OF LAW OR FINDINGS OF
FACT.  RESPONDENTS CONCEDED IN THE DISTRICT COURT THAT A DISPUTE
EXISTED AS TO WHETHER THE DRUG ADMINISTERED TO PETITIONER WAS A "TRUTH
SERUM," AS TO ITS EFFECTS, AND AS TO WHETHER FACTS BEARING ON THESE
QUESTIONS HAD BEEN CONCEALED DURING THE STATE-COURT HEARING ON THE
ADMISSIBILITY OF THE CONFESSION.  NEVERTHELESS, THE DISTRICT COURT
DENIED PETITIONER AN OPPORTUNITY TO CALL WITNESSES OR TO PRODUCE OTHER
EVIDENCE IN SUPPORT OF HIS ALLEGATIONS.  IT DISMISSED HIS PETITION ON
THE GROUND THAT IT WAS SATISFIED FROM THE STATE-COURT RECORDS THAT THE
DECISION OF THE STATE COURT, HOLDING THAT THE CONFESSION HAD BEEN GIVEN
FREELY AND VOLUNTARILY, WAS CORRECT AND THAT THERE HAD BEEN NO DENIAL
OF FEDERAL DUE PROCESS OF LAW.  THE COURT OF APPEALS AFFIRMED.  HELD:
ON THE RECORD IN THIS CASE, THE DISTRICT COURT ERRED IN DENYING A WRIT
OF HABEAS CORPUS WITHOUT A PLENARY EVIDENTIARY HEARING.  PP. 295-322. 

1.  THE PETITION FOR HABEAS CORPUS ALLEGED A DEPRIVATION OF
CONSTITUTIONAL RIGHTS, BECAUSE PETITIONER'S CONFESSION WAS
CONSTITUTIONALLY INADMISSIBLE IF IT WAS ADDUCED BY POLICE QUESTIONING
DURING A PERIOD WHEN PETITIONER'S WILL WAS OVERBORNE BY A DRUG HAVING
THE PROPERTIES OF A "TRUTH SERUM."  PP. 307-309. 

2.  WHEN AN APPLICATION BY A STATE PRISONER TO A FEDERAL COURT FOR A
WRIT OF HABEAS CORPUS ALLEGES FACTS WHICH, IF PROVED, WOULD ENTITLE HIM
TO RELIEF, THE FEDERAL COURT TO WHICH THE APPLICATION IS MADE HAS THE
POWER TO RECEIVE EVIDENCE AND TRY THE FACTS ANEW.  PP.  310-312. 

3.  WHERE THE FACTS ARE IN DISPUTE, THE FEDERAL DISTRICT COURT MUST
GRANT AN EVIDENTIARY HEARING IF (1) THE MERITS OF THE FACTUAL DISPUTE
WERE NOT RESOLVED IN THE STATE HEARING, EITHER AT THE TIME OF THE TRIAL
OR IN A COLLATERAL PROCEEDING; (2) THE STATE FACTUAL DETERMINATION IS
NOT FAIRLY SUPPORTED BY THE RECORD AS A WHOLE; (3) THE FACT-FINDING
PROCEDURE EMPLOYED BY THE STATE COURT WAS NOT ADEQUATE TO AFFORD A FULL
AND FAIR HEARING; (4) THERE IS A SUBSTANTIAL ALLEGATION OF NEWLY
DISCOVERED EVIDENCE; (5) THE MATERIAL FACTS WERE NOT ADEQUATELY
DEVELOPED AT THE STATE-COURT HEARING; OR (6) FOR ANY REASON IT APPEARS
THAT THE STATE TRIER OF FACT DID NOT AFFORD THE APPLICANT A FULL AND
FAIR FACT HEARING.  PP. 312-318. 

(A)  WHEN THE STATE TRIER OF FACT HAS MADE NO EXPRESS FINDINGS, THE
DISTRICT COURT MUST HOLD AN EVIDENTIARY HEARING IF THE STATE COURT DID
NOT DECIDE THE ISSUES OF FACT TENDERED TO IT, IF THE STATE COURT
APPLIED AN INCORRECT STANDARD OF CONSTITUTIONAL LAW, OR IF, FOR ANY
OTHER REASON, THE DISTRICT COURT IS UNABLE TO RECONSTRUCT THE RELEVANT
FINDINGS OF THE STATE TRIER OF FACT.  PP. 313-316. 

(B)  THE FEDERAL DISTRICT COURT MUST CAREFULLY SCRUTINIZE THE STATE
COURT RECORD IN ORDER TO DETERMINE WHETHER THE FACTUAL DETERMINATIONS
OF THE STATE COURT ARE FAIRLY SUPPORTED BY THE RECORD.  P. 316. 

(C)  EVEN IF ALL THE RELEVANT FACTS WERE PRESENTED IN THE STATE-COURT
HEARING, IT IS THE FEDERAL JUDGE'S DUTY TO DISREGARD THE STATE FINDINGS
AND TAKE EVIDENCE ANEW, IF THE PROCEDURE EMPLOYED BY THE STATE COURT
APPEARS TO BE SERIOUSLY INADEQUATE FOR THE ASCERTAINMENT OF THE TRUTH. 
P. 316. 

(D)  WHERE NEWLY DISCOVERED EVIDENCE WHICH COULD NOT REASONABLY HAVE
BEEN PRESENTED TO THE STATE COURT IS ALLEGED, THE FEDERAL COURT MUST
GRANT AN EVIDENTIARY HEARING, UNLESS THE ALLEGATION OF NEWLY DISCOVERED
EVIDENCE IS IRRELEVANT, FRIVOLOUS OR INCREDIBLE.  P. 317. 

(E)  IF, FOR ANY REASON NOT ATTRIBUTABLE TO THE INEXCUSABLE NEGLECT
OF THE APPLICANT, EVIDENCE CRUCIAL TO THE ADEQUATE CONSIDERATION OF HIS
CONSTITUTIONAL CLAIM WAS NOT DEVELOPED AT THE STATE HEARING, THE
FEDERAL COURT MUST GRANT AN EVIDENTIARY HEARING.  P. 317. 

(F)  THE DUTY TO TRY THE FACTS ANEW EXISTS IN EVERY CASE IN WHICH THE
STATE COURT HAS NOT, AFTER A FULL HEARING, RELIABLY FOUND THE RELEVANT
FACTS.  PP. 317-318. 

4.  IN ALL OTHER CASES WHERE THE MATERIAL FACTS ARE IN DISPUTE, THE
HOLDING OF AN EVIDENTIARY HEARING IS IN THE DISCRETION OF THE FEDERAL
DISTRICT JUDGE.  P. 318. 

5.  WHERE THE STATE COURT HAS RELIABLY FOUND THE RELEVANT FACTS, THE
FEDERAL DISTRICT JUDGE MAY DEFER TO THE STATE COURT'S FINDINGS OF FACT;
BUT HE MAY NOT DEFER TO THE STATE COURT'S FINDINGS OF LAW.  P. 318. 

6.  A DISTRICT COURT SITTING IN HABEAS CORPUS HAS POWER TO COMPEL
PRODUCTION OF THE COMPLETE STATE-COURT RECORD OR TO HOLD AN EVIDENTIARY
HEARING FORTHWITH WITHOUT COMPELLING ITS PRODUCTION.  PP. 318-319. 

7.  IT RESTS LARGELY WITH THE FEDERAL DISTRICT JUDGES TO GIVE
PRACTICAL FORM TO THE ABOVE PRINCIPLES AND TO MAKE PROPER ACCOMMODATION
BETWEEN THE COMPETING FACTORS INVOLVED.  P. 319. 

8.  IN THIS CASE, THE COURT OF APPEALS ERRED IN HOLDING THAT, ON
HABEAS CORPUS, "THE DISTRICT COURT'S INQUIRY IS LIMITED TO A STUDY OF
THE UNDISPUTED PORTIONS OF THE RECORD."  PP. 319-320. 

9.  IN THE CIRCUMSTANCES OF THIS CASE, THE DISTRICT JUDGE SHOULD HAVE
HELD AN EVIDENTIARY HEARING, BECAUSE HE COULD NOT RECONSTRUCT THE
RELEVANT FINDINGS OF THE STATE TRIER OF FACT AND BECAUSE THE
CHARACTERIZATION OF THE DRUG ADMINISTERED AS A "TRUTH SERUM" WAS NOT
BROUGHT OUT AT THE STATE-COURT HEARING.  PP. 320-322. 

10.  THE STATE-COURT RECORD IS COMPETENT EVIDENCE AT THE DISTRICT
COURT HEARING, AND EITHER THE PETITIONER OR THE STATE MAY RELY SOLELY
UPON THE EVIDENCE CONTAINED IN THAT RECORD.  P. 322. 

TOWNSEND V. SAIN, SHERIFF, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, IN ITS PRESENT POSTURE RAISING QUESTIONS AS TO THE RIGHT
TO A PLENARY HEARING IN FEDERAL HABEAS CORPUS, COMES TO US ONCE AGAIN
AFTER A TANGLE OF PRIOR PROCEEDINGS.  IN 1955 THE PETITIONER, CHARLES
TOWNSEND, WAS TRIED BEFORE A JURY FOR MURDER IN THE CRIMINAL COURT OF
COOK COUNTY, ILLINOIS.  AT HIS TRIAL PETITIONER, THROUGH HIS COURT
APPOINTED COUNSEL, THE PUBLIC DEFENDER, OBJECTED TO THE INTRODUCTION OF
HIS CONFESSION ON THE GROUND THAT IT WAS THE PRODUCT OF COERCION.  A
HEARING WAS HELD OUTSIDE THE PRESENCE OF THE JURY, AND THE TRIAL JUDGE
DENIED THE MOTION TO SUPPRESS.  HE LATER ADMITTED THE CONFESSION INTO
EVIDENCE.  FURTHER EVIDENCE RELATING TO THE ISSUE OF VOLUNTARINESS WAS
INTRODUCED BEFORE THE JURY.  THE CHARGE PERMITTED THEM TO DISREGARD THE
CONFESSION IF THEY FOUND THAT IT WAS INVOLUNTARY.  UNDER ILLINOIS LAW
THE ADMISSIBILITY OF THE CONFESSION IS DETERMINED SOLELY BY THE TRIAL
JUDGE, BUT THE QUESTION OF VOLUNTARINESS, BECAUSE IT BEARS ON THE ISSUE
CREDIBILITY, MAY ALSO BE PRESENTED TO THE JURY.  SEE, E.G., PEOPLE V.
SCHWARTZ, 3 ILL. 2D 520, 523, 121 N.E.2D 758, 760; PEOPLE V. ROACH, 369
ILL.  95, 15 N.E.2D 873.  THE JURY FOUND PETITIONER GUILTY AND AFFIXED
THE DEATH PENALTY TO ITS VERDICT.  THE SUPREME COURT OF ILLINOIS
AFFIRMED THE CONVICTION, TWO JUSTICES DISSENTING.  PEOPLE V. TOWNSEND,
11 ILL. 2D 30, 141 N.E.2D 729.  THIS COURT DENIED A WRIT OF
CERTIORARI.  355 U.S. 850. 

PETITIONER NEXT SOUGHT POST-CONVICTION COLLATERAL RELIEF IN THE
ILLINOIS STATE COURTS.  THE COOK COUNTY CRIMINAL COURT DISMISSED HIS
PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING.  THE SUPREME COURT OF
ILLINOIS BY ORDER AFFIRMED, HOLDING THAT THE ISSUE OF COERCION WAS RES
JUDICATA, AND THIS COURT AGAIN DENIED CERTIORARI.  358 U.S. 887.  THE
ISSUE OF COERCION WAS PRESSED AT ALL STAGES OF THESE PROCEEDINGS. 

HAVING THOROUGHLY EXHAUSTED HIS STATE REMEDIES, TOWNSEND PETITIONED
FOR HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS.  THAT COURT, CONSIDERING ONLY THE PLEADINGS FILED
IN THE COURSE OF THAT PROCEEDING AND THE OPINION OF THE ILLINOIS
SUPREME COURT RENDERED ON DIRECT APPEAL, DENIED THE WRIT.  THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT DISMISSED AN APPEAL.  265 F.2D 660. 
HOWEVER, THIS COURT GRANTED A PETITION FOR CERTIORARI, VACATED THE
JUDGMENT AND REMANDED FOR A DECISION AS TO WHETHER, IN THE LIGHT OF THE
STATE-COURT RECORD, A PLENARY HEARING WAS REQUIRED.  359 U.S. 64. 

ON THE REMAND, THE DISTRICT COURT HELD NO HEARING AND DISMISSED THE
PETITION, FINDING ONLY THAT "JUSTICE WOULD NOT BE SERVED BY ORDERING A
FULL HEARING OR BY AWARDING ANY OR ALL OF THE RELIEF SOUGHT BY
PETITIONER."  THE JUDGE STATED THAT HE WAS SATISFIED FROM THE STATE
COURT RECORDS BEFORE HIM THAT THE DECISION OF THE STATE COURTS HOLDING
THE CHALLENGED CONFESSION TO HAVE BEEN FREELY AND VOLUNTARILY GIVEN BY
PETITIONER WAS CORRECT, AND THAT THERE HAD BEEN NO DENIAL OF FEDERAL
DUE PROCESS OF LAW.  ON APPEAL THE COURT OF APPEALS CONCLUDED THAT "ON
HABEAS CORPUS, THE DISTRICT COURT'S INQUIRY IS LIMITED TO A STUDY OF
THE UNDISPUTED PORTIONS OF THE RECORD" AND THAT THE UNDISPUTED PORTIONS
OF THIS RECORD SHOWED NO DEPRIVATION OF CONSTITUTIONAL RIGHTS.  276
F.2D 324, 329.  WE GRANTED CERTIORARI TO DETERMINE WHETHER THE COURTS
BELOW HAD CORRECTLY DETERMINED AND APPLIED THE STANDARDS GOVERNING
HEARINGS IN FEDERAL HABEAS CORPUS.  365 U.S. 866.  THE CASE WAS FIRST
ARGUED DURING THE OCTOBER TERM 1961.  TWO OF THE JUSTICES WERE UNABLE
TO PARTICIPATE IN A DECISION, AND WE SUBSEQUENTLY ORDERED IT REARGUED. 
369 U.S. 834.  WE NOW HAVE IT BEFORE US FOR DECISION. 

THE UNDISPUTED EVIDENCE ADDUCED AT THE TRIAL-COURT HEARING ON THE
MOTION TO SUPPRESS SHOWED THE FOLLOWING.  PETITIONER WAS ARRESTED BY
CHICAGO POLICE SHORTLY BEFORE OR AFTER 2 A.M. ON NEW YEAR'S DAY 1954. 
THEY HAD RECEIVED INFORMATION FROM ONE CAMPBELL, THEN IN THEIR CUSTODY
FOR ROBBERY, THAT PETITIONER WAS CONNECTED WITH THE ROBBERY AND MURDER
OF JACK BOONE, A CHICAGO STEELWORKER AND THE VICTIM IN THIS CASE. 
TOWNSEND WAS 19 YEARS OLD AT THE TIME, A CONFIRMED HEROIN ADDICT AND A
USER OF NARCOTICS SINCE AGE 15.  HE WAS UNDER THE INFLUENCE OF A DOSE
OF HEROIN ADMINISTERED APPROXIMATELY ONE AND ONE-HALF HOURS BEFORE HIS
ARREST.  IT WAS HIS PRACTICE TO TAKE INJECTIONS THREE TO FIVE HOURS
APART.  AT ABOUT 2:30 A.M. PETITIONER WAS TAKEN TO THE SECOND DISTRICT
POLICE STATION AND, SHORTLY AFTER HIS ARRIVAL, WAS QUESTIONED FOR A
PERIOD VARIOUSLY FIXED FROM ONE-HALF TO TWO HOURS.  DURING THIS PERIOD,
HE DENIED COMMITTING ANY CRIMES.  THEREAFTER AT ABOUT 5 A.M. HE WAS
TAKEN TO THE 19TH DISTRICT STATION WHERE HE REMAINED, WITHOUT BEING
QUESTIONED UNTIL ABOUT 8:15 P.M. THAT EVENING.  AT THAT TIME HE WAS
RETURNED TO THE SECOND DISTRICT STATION AND PLACED IN A LINE-UP WITH
SEVERAL OTHER MEN SO THAT HE COULD BE VIEWED BY ONE ANAGNOST, THE
VICTIM OF ANOTHER ROBBERY.  WHEN ANAGNOST IDENTIFIED ANOTHER MAN,
RATHER THAN PETITIONER, AS HIS ASSAILANT, A SCUFFLE ENSUED, THE DETAILS
OF WHICH WERE DISPUTED BY PETITIONER AND THE POLICE.  FOLLOWING THIS
INCIDENT PETITIONER WAS AGAIN SUBJECTED TO QUESTIONING.  HE WAS
INTERROGATED MORE OR LESS REGULARLY FROM ABOUT 8:45 UNTIL 9:30 BY
POLICE OFFICERS.  AT THAT TIME AN ASSISTANT STATE'S ATTORNEY ARRIVED. 
SOME TIME SHORTLY BEFORE OR AFTER NINE O'CLOCK, BUT BEFORE THE ARRIVAL
OF THE STATE'S ATTORNEY, PETITIONER COMPLAINED TO OFFICER CAGNEY THAT
HE HAD PAINS IN HIS STOMACH, THAT HE WAS SUFFERING FROM OTHER
WITHDRAWAL SYMPTOMS, THAT HE WANTED A DOCTOR, AND THAT HE WAS IN NEED
OF A DOSE OF NARCOTICS.  PETITIONER CLUTCHED CONVULSIVELY AT HIS
STOMACH A NUMBER OF TIMES.  CAGNEY, AWARE THAT PETITIONER WAS A
NARCOTIC ADDICT, TELEPHONED FOR A POLICE PHYSICIAN.  THERE WAS SOME
DISPUTE BETWEEN HIM AND THE STATE'S ATTORNEY, BOTH PROSECUTION
WITNESSES, AS TO WHETHER THE QUESTIONING CONTINUED UNTIL THE DOCTOR
ARRIVED.  CAGNEY TESTIFIED THAT IT DID AND THE STATE'S ATTORNEY TO THE
CONTRARY.  IN ANY EVENT, AFTER THE WITHDRAWAL SYMPTOMS COMMENCED IT
APPEARS THAT PETITIONER WAS UNRESPONSIVE TO QUESTIONING.  THE DOCTOR
APPEARED AT 9:45.  IN THE PRESENCE OF OFFICER CAGNEY HE GAVE TOWNSEND A
COMBINED DOSAGE BY INJECTION OF 1/8-GRAIN OF PHENOBARBITAL AND 1/230
GRAIN OF HYOSCINE.  HYOSCINE IS THE SAME AS SCOPOLAMINE AND IS CLAIMED
BY PETITIONER IN THIS PROCEEDING TO HAVE THE PROPERTIES OF A "TRUTH
SERUM."  THE DOCTOR ALSO LEFT PETITIONER FOUR OR FIVE 1/4-GRAIN TABLETS
OF PHENOBARBITAL.  TOWNSEND WAS TOLD TO TAKE TWO OF THESE THAT EVENING
AND THE REMAINDER THE FOLLOWING DAY.  THE DOCTOR TESTIFIED THAT THESE
MEDICATIONS WERE GIVEN TO PETITIONER FOR THE PURPOSE OF ALLEVIATING THE
WITHDRAWAL SYMPTOMS; THE POLICE OFFICERS AND THE STATE'S ATTORNEY
TESTIFIED THAT THEY DID NOT KNOW WHAT THE DOCTOR HAD GIVEN PETITIONER. 
THE DOCTOR DEPARTED BETWEEN 10 AND 10:30.  THE MEDICATION ALLEVIATED
THE DISCOMFORT OF THE WITHDRAWAL SYMPTOMS, AND PETITIONER PROMPTLY
RESPONDED TO QUESTIONING. 

AS TO EVENTS SUCCEEDING THIS POINT IN TIME ON JANUARY 1, THE
TESTIMONY OF THE PROSECUTION WITNESSES AND OF THE PETITIONER
IRRECONCILABLY CONFLICTS.  HOWEVER, FOR THE PURPOSES OF THIS PROCEEDING
BOTH SIDES AGREE THAT THE FOLLOWING OCCURRED.  AFTER THE DOCTOR LEFT,
OFFICER FITZGERALD AND THE ASSISTANT STATE'S ATTORNEY JOINED OFFICER
CAGNEY IN THE ROOM WITH THE PETITIONER, WHERE HE WAS QUESTIONED FOR
ABOUT 25 MINUTES.  THEY ALL THEN WENT TO ANOTHER ROOM; A COURT REPORTED
THERE TOOK DOWN PETITIONER'S STATEMENTS.  THE STATE'S ATTORNEY TURNED
THE QUESTIONING TO THE BOONE CASE ABOUT 11:15.  IN LESS THAN NINE
MINUTES A FULL CONFESSION WAS TRANSCRIBED.  AT ABOUT 11:45 THE
QUESTIONING WAS TERMINATED, AND PETITIONER WAS RETURNED TO HIS CELL. 

THE FOLLOWING DAY, SATURDAY, JANUARY 2, AT ABOUT 1 P.M. PETITIONER
WAS TAKEN TO THE OFFICE OF THE PROSECUTOR WHERE THE ASSISTANT STATE'S
ATTORNEY READ, AND PETITIONER SIGNED, TRANSCRIPTIONS OF THE STATEMENTS
WHICH HE HAD MADE THE NIGHT BEFORE.  WHEN TOWNSEND AGAIN EXPERIENCED
DISCOMFORT ON SUNDAY EVENING, THE DOCTOR WAS SUMMONED.  HE GAVE
PETITIONER MORE 1/4-GRAIN TABLETS OF PHENOBARBITAL.  ON MONDAY, JANUARY
4, TOWNSEND WAS TAKEN TO A CORONER'S INQUEST WHERE HE WAS CALLED TO THE
WITNESS STAND BY THE STATE AND, AFTER BEING ADVISED OF HIS RIGHT NOT TO
TESTIFY, AGAIN CONFESSED.  AT THE TIME OF THE INQUEST PETITIONER WAS
WITHOUT COUNSEL.  THE PUBLIC DEFENDER WAS NOT APPOINTED TO REPRESENT
HIM UNTIL HIS ARRAIGNMENT ON JANUARY 12. 

PETITIONER TESTIFIED AT THE MOTION TO SUPPRESS TO THE FOLLOWING
VERSION OF HIS DETENTION.  HE WAS INITIALLY QUESTIONED AT THE SECOND
DISTRICT POLICE STATION FOR A PERIOD IN EXCESS OF TWO HOURS.  UPON HIS
RETURN FROM THE 19TH DISTRICT AND AFTER ANAGNOST, THE ROBBERY VICTIM
WHO HAD VIEWED THE LINE-UP, HAD IDENTIFIED ANOTHER PERSON AS THE
ASSAILANT, OFFICER CAGNEY ACCOMPANIED ANAGNOST INTO THE HALL AND TOLD
HIM THAT HE HAD IDENTIFIED THE WRONG PERSON.  ANOTHER OFFICER THEN
ENTERED THE ROOM, HIT THE PETITIONER IN THE STOMACH AND STATED THAT
PETITIONER KNEW THAT HE HAD ROBBED ANAGNOST.   PETITIONER FELL TO THE
FLOOR AND VOMITED WATER AND A LITTLE BLOOD.  OFFICER CAGNEY SPOKE TO
TOWNSEND 5 OR 10 MINUTES LATER, TOWNSEND TOLD HIM THAT HE WAS SICK FROM
THE USE OF DRUGS, AND CAGNEY OFFERED TO CALL A DOCTOR IF PETITIONER
WOULD "COOPERATE" AND TELL THE TRUTH ABOUT THE BOONE MURDER.  FIVE
MINUTES LATER THE OFFICER HAD CHANGED HIS TACK; HE TOLD PETITIONER THAT
HE THOUGHT HIM INNOCENT AND THAT HE WOULD CALL THE DOCTOR, IMPLYING
THAT THE DOCTOR WOULD GIVE HIM A NARCOTIC.  THE DOCTOR GAVE PETITIONER
AN INJECTION IN THE ARM AND FIVE PILLS.  TOWNSEND TOOK THREE OF THESE
IMMEDIATELY.  ALTHOUGH HE FELT BETTER, HE FELT DIZZY AND SLEEPY AND HIS
DISTANCE VISION WAS IMPAIRED.  ANAGNOST WAS THEN BROUGHT INTO THE ROOM,
AND PETITIONER WAS ASKED BY SOMEONE TO TELL ANAGNOST THAT HE HAD ROBBED
HIM.  PETITIONER THEN ADMITTED THE ROBBERY, AND THE NEXT THING HE KNEW
WAS THAT HE WAS SITTING AT A DESK.  HE FELL ASLEEP BUT WAS AWAKENED AND
HANDED A PEN; HE SIGNED HIS NAME BELIEVING THAT HE WAS GOING TO BE
RELEASED ON BOND.  TOWNSEND WAS TAKEN TO HIS CELL BUT WAS LATER TAKEN
BACK TO THE ROOM IN WHICH HE HAD BEEN BEFORE.  HE COULD SEE "A LOT OF
LIGHTS FLICKERING," AND SOMEONE TOLD HIM TO HOLD HIS HEAD UP.  THIS
WENT ON FOR A MINUTE OR SO, AND PETITIONER WAS THEN AGAIN TAKEN BACK TO
HIS CELL.  THE NEXT MORNING PETITIONER'S HEAD WAS MUCH CLEARER,
ALTHOUGH HE COULD NOT REALLY REMEMBER WHAT HAD OCCURRED FOLLOWING THE
INJECTION ON THE PREVIOUS EVENING.  AN OFFICER THEN TOLD PETITIONER
THAT HE HAD CONFESSED.  TOWNSEND WAS TAKEN INTO A ROOM AND ASKED ABOUT
A NUMBER OF ROBBERIES AND MURDERS.  "I BELIEVE I SAID YES TO ALL OF
THEM."  HE COULD NOT HEAR VERY WELL AND FELT SLEEPY.  THAT AFTERNOON,
AFTER HE HAD TAKEN THE REMAINDER OF THE PHENOBARBITAL PILLS, HE WAS
TAKEN TO THE OFFICE OF THE STATE'S ATTORNEY.  HALF ASLEEP HE SIGNED
ANOTHER PAPER ALTHOUGH NOT AWARE OF ITS CONTENTS.  THE DOCTOR GAVE HIM
SIX OR SEVEN PILLS OF A DIFFERENT COLOR ON SUNDAY EVENING.  HE TOOK
SOME OF THESE IMMEDIATELY.  THEY KEPT HIM AWAKE ALL NIGHT.  THE
FOLLOWING MONDAY MORNING HE TOOK MORE OF THESE PILLS.  LATER THAT DAY
HE WAS TAKEN TO A CORONER'S INQUEST.  HE TESTIFIED AT THE INQUEST
BECAUSE THE OFFICERS HAD TOLD HIM TO DO SO. 

ESSENTIALLY THE PROSECUTION WITNESSES CONTRADICTED ALL OF THE ABOVE. 
THEY TESTIFIED THAT PETITIONER HAD BEEN QUESTIONED INITIALLY FOR ONLY
ONE-HALF HOUR, THAT HE HAD SCUFFLED WITH THE MAN IDENTIFIED BY
ANAGNOST, AND NOT AN OFFICER, AND THAT HE HAD NOT VOMITED.  THE
OFFICERS AND THE ASSISTANT STATE'S ATTORNEY ALSO TESTIFIED THAT
PETITIONER HAD APPEARED TO BE AWAKE AND COHERENT THROUGHOUT THE EVENING
OF THE 1ST OF JANUARY AND AT ALL RELEVANT TIMES THEREAFTER, AND THAT HE
HAD NOT TAKEN THE PILLS GIVEN TO HIM BY THE DOCTOR ON THE EVENING OF
THE 1ST.   THEY STATED THAT THE PETITIONER HAD APPEARED TO FOLLOW THE
STATEMENT WHICH HE SIGNED AND WHICH WAS READ TO HIM AT THE STATE'S
ATTORNEY'S OFFICE.  FINALLY THEY DENIED THAT ANY THREATS OR PROMISES OF
ANY SORT HAD BEEN MADE OR THAT TOWNSEND HAD BEEN TOLD TO TESTIFY AT THE
CORONER'S INQUEST.  AS STATED ABOVE COUNSEL WAS NOT PROVIDED FOR HIM AT
THIS INQUEST. 

THERE WAS CONSIDERABLE TESTIMONY AT THE MOTION TO SUPPRESS CONCERNING
THE PROBABLE EFFECTS OF HYOSCINE AND PHENOBARBITAL.  DR. MANSFIELD, WHO
HAD PRESCRIBED FOR PETITIONER ON THE EVENING WHEN HE HAD FIRST
CONFESSED, TESTIFIED FOR THE PROSECUTION.  HE STATED THAT A FULL
THERAPEUTIC DOSE OF HYOSCINE WAS 1/100 OF A GRAIN; THAT HE GAVE
TOWNSEND 1/230 OF A GRAIN; THAT "PHENOBARBITAL  ... REACTS VERY WELL
COMBINED WITH HYOSCINE WHEN  ...  YOU WANT TO QUIET" A PERSON; THAT THE
COMBINATION WILL "PACIFY" BECAUSE "IT HAS AN EFFECT ON THE MIND"; BUT
THAT THE DOSAGE ADMINISTERED WOULD NOT PUT A PERSON TO SLEEP AND WOULD
NOT CAUSE AMNESIA OR IMPAIRMENT OF EYESIGHT OR OF MENTAL CONDITION. 
THE DOCTOR DENIED THAT HE HAD ADMINISTERED ANY "TRUTH SERUM."  HOWEVER,
HE DID NOT DISCLOSE THAT HYOSCINE IS THE SAME AS SCOPOLAMINE OR THAT
THE LATTER IS FAMILIARLY KNOWN AS "TRUTH SERUM."  PETITIONER'S EXPERT
WAS A DOCTOR OF PHYSIOLOGY, PHARMACOLOGY AND TOXICOLOGY.  HE WAS
FORMERLY THE SENIOR TOXICOLOGICAL CHEMIST OF COOK COUNTY AND AT THE
TIME OF TRIAL WAS A PROFESSOR OF PHARMACOLOGY, CHEMOTHERAPY AND
TOXICOLOGY AT THE LOYOLA UNIVERSITY SCHOOL OF MEDICINE.  HE TESTIFIED
TO THE EFFECT OF THE INJECTION UPON A HYPOTHETICAL SUBJECT, OBVIOUSLY
THE PETITIONER.  THE EXPERT STATED THAT THE EFFECT OF THE PRESCRIBED
DOSAGE OF HYOSCINE UPON THE SUBJECT, ASSUMED TO BE A NARCOTIC ADDICT,
"WOULD BE OF SUCH A NATURE THAT IT COULD RANGE BETWEEN ABSOLUTE SLEEP
...  AND DROWSINESS, AS ONE EXTREME, AND THE OTHER EXTREME  ...  WOULD
INCORPORATE COMPLETE DISORIENTATION AND EXCITATION  ...  ."  AND,
ASSUMING THAT THE SUBJECT TOOK 1/8-GRAIN PHENOBARBITAL BY INJECTION AND
1/2-GRAIN ORALLY AT THE SAME TIME, THE EXPERT STATED THAT THE
DEPRESSIVE EFFECT WOULD BE ACCENTUATED.  THE EXPERT TESTIFIED THAT THE
SUBJECT WOULD SUFFER PARTIAL OR TOTAL AMNESIA FOR FIVE TO EIGHT HOURS
AND LOSS OF NEAR VISION FOR FOUR TO SIX HOURS. 

THE TRIAL JUDGE SUMMARILY DENIED THE MOTION TO SUPPRESS AND LATER
ADMITTED THE COURT REPORTER'S TRANSCRIPTION OF THE CONFESSION INTO
EVIDENCE.  HE MADE NO FINDINGS OF FACT AND WROTE NO OPINION STATING THE
GROUNDS OF HIS DECISION.  (FN1)  THEREAFTER, FOR THE PURPOSE OF TESTING
THE CREDIBILITY OF THE CONFESSION, THE EVIDENCE RELATING TO COERCION
WAS PLACED BEFORE THE JURY.  AT THAT TIME ADDITIONAL NOTEWORTHY
TESTIMONY WAS ELICITED.  THE IDENTITY OF HYOSCINE AND SCOPOLAMINE WAS
ESTABLISHED (BUT NO MENTION OF THE DRUG'S PROPERTIES AS A "TRUTH SERUM"
WAS MADE).  AN EXPERT WITNESS CALLED BY THE PROSECUTION TESTIFIED THAT
TOWNSEND HAD SUCH A LOW INTELLIGENCE THAT HE WAS A NEAR MENTAL
DEFECTIVE AND "JUST A LITTLE ABOVE MORON."  TOWNSEND TESTIFIED THAT THE
OFFICERS HAD SLAPPED HIM ON SEVERAL OCCASIONS AND HAD THREATENED TO
SHOOT HIM.  FINALLY, OFFICER CORCORAN TESTIFIED THAT ABOUT 9 P.M.,
FRIDAY EVENING BEFORE THE DOCTOR'S ARRIVAL, TOWNSEND HAD CONFESSED TO
THE BOONE ASSAULT AND ROBBERY IN RESPONSE TO A QUESTION PROPOUNDED BY
OFFICER CAGNEY IN THE PRESENCE OF OFFICERS FITZGERALD, MARTIN AND
HIMSELF.  BUT ALTHOUGH CORCORAN, CAGNEY AND MARTIN HAD TESTIFIED
EXTENSIVELY AT THE MOTION TO SUPPRESS, NONE HAD MENTIONED ANY SUCH
CONFESSION.  FURTHERMORE, BOTH TOWNSEND AND OFFICER FITZGERALD AT THE
MOTION TO SUPPRESS HAD FLATLY SAID THAT NO STATEMENT HAD BEEN MADE
BEFORE THE DOCTOR ARRIVED.  ALTHOUGH THE OTHER THREE OFFICERS TESTIFIED
AT THE TRIAL, NOT ONE OF THEM WAS ASKED TO CORROBORATE THIS PHASE OF
CORCORAN'S TESTIMONY. 

IT WAS ESTABLISHED THAT THE HOMICIDE OCCURRED AT ABOUT 6 P.M. ON
DECEMBER 18, 1963.  ESSENTIALLY THE ONLY EVIDENCE WHICH CONNECTED
PETITIONER WITH THE CRIME, OTHER THAN HIS CONFESSION, WAS THE TESTIMONY
OF CAMPBELL, THEN ON PROBATION FOR ROBBERY, AND OF THE PATHOLOGIST WHO
PERFORMED THE AUTOPSY ON BOONE.  CAMPBELL TESTIFIED THAT ABOUT THE
"MIDDLE" OF DECEMBER AT ABOUT 8:30 P.M. HE HAD SEEN TOWNSEND WALKING
DOWN A STREET IN THE VICINITY OF THE MURDER WITH A BRICK IN HIS HAND. 
HE WAS UNABLE TO FIX THE EXACT DATE, DID NOT KNOW OF THE BOONE MURDER
AT THE TIME AND, SO FAR AS HIS TESTIMONY REVEALED, HAD NO REASON TO
SUSPECT THAT TOWNSEND HAD DONE ANYTHING UNLAWFUL PREVIOUS TO THEIR
MEETING. 

THE PATHOLOGIST TESTIFIED THAT DEATH WAS CAUSED BY A "SEVERE BLOW TO
THE TOP OF HIS (BOONE'S) HEAD  ...  ."  CONTRARY TO THE STATEMENT IN
THE OPINION OF THE ILLINOIS SUPREME COURT ON DIRECT APPEAL THERE WAS NO
TESTIMONY THAT THE WOUNDS WERE "LOCATED IN SUCH A MANNER AS TO HAVE
BEEN INFLICTED BY A BLOW WITH A HOUSE BRICK  ...  ."  11 ILL. 2D, AT
45, 141 N.E.2D, AT 737.  IN ANY EVENT, THAT COURT CHARACTERIZED THE
EVIDENCE AS MEAGRE AND NOTED THAT "IT WAS BROUGHT OUT BY CROSS
EXAMINATION THAT CAMPBELL HAD INFORMED ON THE DEFENDANT TO OBTAIN HIS
OWN RELEASE FROM CUSTODY."  11 ILL. 2D, AT 44, 45, 141 N.E.2D, AT 737. 
PRIOR TO PETITIONER'S TRIAL CAMPBELL WAS PLACED ON PROBATION FOR
ROBBERY.  JUSTICE SCHAEFER, JOINED BY CHIEF JUSTICE KLINGBIEL IN
DISSENT, FOUND CAMPBELL'S TESTIMONY "INHERENTLY INCREDIBLE."  11 ILL.
2D, AT 49, 141 N.E.2D, AT 739. 

THE THEORY OF PETITIONER'S APPLICATION FOR HABEAS CORPUS DID NOT REST
UPON ALLEGATIONS OF PHYSICAL COERCION.  RATHER, IT RELIED UPON THE
HITHERTO UNDISPUTED TESTIMONY AND ALLEGED:  (1) THAT PETITIONER VOMITED
WATER AND BLOOD AT THE POLICE STATION WHEN HE BECAME ILL FROM THE
WITHDRAWAL OF NARCOTICS; (2) THAT SCOPOLAMINE IS A "TRUTH SERUM" AND
THAT THIS FACT WAS NOT BROUGHT OUT AT THE MOTION TO SUPPRESS OR AT THE
TRIAL; (3) THAT SCOPOLAMINE "EITHER ALONE OR COMBINED WITH
PHENOBARBITAL, IS NOT THE PROPER MEDICATION FOR A NARCOTIC ADDICT (AND
THAT)  ...  THE EFFECT OF THE INTRAVENOUS INJECTION OF HYOSCINE AND
PHENOBARBITAL  ...  IS TO PRODUCE A PHYSIOLOGICAL AND PSYCHOLOGICAL
CONDITION ADVERSELY AFFECTING THE MIND AND WILL ...  AND A PSYCHIC
EFFECT WHICH REMOVES THE SUBJECT THUS INJECTED FROM THE SCOPE OF
REALITY; SO THAT THE PERSON SO TREATED IS REMOVED FROM CONTACT WITH HIS
ENVIRONMENT, HE IS NOT ABLE TO SEE AND FEEL PROPERLY, HE LOSES PROPER
USE OF HIS EYE-SIGHT, HIS HEARING AND HIS SENSE OF PERCEPTION AND HIS
ABILITY TO WITHSTAND INTERROGATION"; (4) THAT THE POLICE DOCTOR
WILLFULLY SUPPRESSED THIS INFORMATION AND INFORMATION OF THE IDENTITY
OF HYOSCINE AND SCOPOLAMINE, OF HIS KNOWLEDGE OF THESE THINGS, AND OF
HIS INTENTION TO INJECT THE HYOSCINE FOR THE PURPOSE OF PRODUCING IN
TOWNSEND "A PHYSIOLOGICAL AND PSYCHOLOGICAL STATE  ...  SUSCEPTIBLE TO
INTERROGATION RESULTING IN  ...  CONFESSIONS  ...  "; (5) THAT THE
INJECTION CAUSED TOWNSEND TO CONFESS; (6) THAT ON THE EVENING OF
JANUARY 1, IMMEDIATELY AFTER THE INJECTION OF SCOPOLAMINE, THE TRIAL,
ONLY THE CONFESSION TO THE ANAGNOST ROBBERY WAS SPECIFICALLY TESTIFIED
TO.  AND THE ROBBERY OF ANAGNOST.  ALTHOUGH THERE WAS SOME MENTION OF
OTHER CONFESSIONS AT THE TRIAL, ONLY THE CONFESSION TO THE ANAGNOST
ROBBERY WAS SPECIFICALLY TESTIFIED TO. 

INITIALLY, IN THEIR ANSWER, RESPONDENTS STATED:  "RESPONDENTS ADMIT
THE FACTUAL ALLEGATIONS OF THE PETITION WELL PLEADED, BUT DENY THAT
PETITIONER IS HELD IN CUSTODY BY RESPONDENTS IN VIOLATION OF THE
CONSTITUTION OR LAWS OF THE UNITED STATES  ...  ."  HOWEVER, IN THE
COURSE OF THE FIRST ARGUMENT BEFORE THE DISTRICT COURT IT APPEARED THAT
RESPONDENTS ADMITTED NOTHING ALLEGED IN THE PETITION BUT MERELY TOOK
THE POSITION THAT THE PETITION, ON ITS FACE, WAS INSUFFICIENT TO
ENTITLE TOWNSEND EITHER TO A HEARING OR TO HIS RELEASE.  IN THE COURSE
OF THE SECOND ARGUMENT, AFTER THE REMAND BY THIS COURT, RESPONDENTS
ADMITTED THAT "IF THE ALLEGATIONS OF THE PETITION ARE TAKEN AS TRUE,
THEN THE PETITIONER IS ENTITLED TO THE RELIEF HE SEEKS  ...  ," AND
THAT TOWNSEND HAD CONFESSED TO AT LEAST FIVE CRIMES AFTER THE INJECTION
OF HYOSCINE.  BUT RESPONDENTS DENIED THAT "PETITIONER WAS ADVERSELY
INFLUENCED BY ITS (THE HYOSCINE'S) ADMINISTRATION TO THE EXTENT THAT
HIS CONFESSION WAS OBTAINED INVOLUNTARILY"; THAT HYOSCINE IS THE TRUTH
SERUM"; THAT "THE POLICE SURGEON OR THE PROSECUTION CONCEALED
PERTINENT, MATERIAL AND RELEVANT FACTS"; OR THAT HYOSCINE WAS AN
IMPROPER MEDICATION UNDER THE CIRCUMSTANCES.  DESPITE RESPONDENTS'
CONCESSION THAT A DISPUTE AS TO THESE FACTS EXISTED, THE DISTRICT JUDGE
DENIED TOWNSEND THE OPPORTUNITY TO CALL WITNESSES OR TO PRODUCE OTHER
EVIDENCE IN SUPPORT OF HIS ALLEGATIONS AND DISMISSED THE PETITION. 

BEFORE WE GRANTED THE MOST RECENT PETITION FOR CERTIORARI WE
REQUESTED RESPONDENTS TO SUBMIT AN ADDITIONAL RESPONSE DIRECTED TO
CERTAIN OF THE ALLEGATIONS OF THE PETITION FOR HABEAS CORPUS. 
RESPONDENTS SUBMITTED AN "ADDITIONAL ANSWER TO PETITION FOR HABEAS
CORPUS" IN WHICH THEY AGAIN ADMITTED THAT TOWNSEND HAD MADE CONFESSIONS
IMMEDIATELY AFTER THE INJECTION OF DRUGS.  SPECIFICALLY THEY ADMITTED
THAT PETITIONER CONFESSED TO THE ROBBERIES OF ANAGNOST AND ONE JOSEPH
MARTIN AND TO THE MURDERS OF BOONE, THOMAS JOHNSON, JOHNNY STINSON, AND
WILLIS THOMPSON.  THE ADDITIONAL ANSWER REVEALED THE FOLLOWING
ADDITIONAL INFORMATION RESPECTING TOWNSEND'S CONFESSIONS TO THESE
CRIMES.  ANAGNOST HAD IDENTIFIED ANOTHER PERSON, RATHER THAN
PETITIONER, AS HIS ASSAILANT.  THOMAS JOHNSON, BEFORE HIS DEATH, HAD
STATED THAT HIS INJURY HAD BEEN AN ACCIDENT.  THE ASSISTANT STATE'S
ATTORNEY DID NOT EVEN BOTHER TO TRANSCRIBE TOWNSEND'S STATEMENT WITH
RESPECT TO THOMPSON'S MURDER "BECAUSE THE DEFENDANT COULD NOT RECALL
THE DETAILS OF THE ASSAULT WHICH LED TO THE DEATH  ...  ."  AT THE
THOMPSON CORONER'S INQUEST, WHEN THE DEPUTY CORONER NOTED THAT TOWNSEND
WAS THEN UNABLE TO REMEMBER EVEN THAT HE HAD COMMITTED THE CRIME,
OFFICER CAGNEY COMPLAINED:  "WHY SHOULDN'T WE BE GIVEN CREDIT FOR THESE
CLEAN-UPS."  DESPITE THESE CIRCUMSTANCES WHICH MADE CONVICTION FOR THE
ANAGNOST ROBBERY AND THE JOHNSON AND THOMPSON MURDERS, AT BEST, A
REMOTE POSSIBILITY, PETITIONER WAS INDICTED FOR ALL OF THE CRIMES TO
WHICH HE HAD CONFESSED.  HOWEVER, AFTER A JURY TRIAL, HE WAS ACQUITTED
OF THE MURDER OF JOHNNY STINSON, AND ON THE VERY DAY THAT HE WAS
SENTENCED TO DEATH FOR THE BOONE MURDER, ON THE MOTION OF THE
PROSECUTOR, THE INDICTMENTS FOR THE MURDERS OF JOHNSON AND THOMPSON AND
FOR THE ROBBERIES OF ANAGNOST AND MARTIN WERE DISMISSED. 

ALTHOUGH THE PETITION FOR HABEAS CORPUS CONTAINS ALLEGATIONS WHICH
WOULD CONSTITUTE A CLAIM THAT THE POLICE DOCTOR, AT THE TRIAL, HAD
PERJURED HIMSELF, THE HEART OF TOWNSEND'S CLAIM IS THAT HIS CONFESSION
WAS INADMISSIBLE SIMPLY BECAUSE IT WAS CAUSED BY THE INJECTION OF
HYOSCINE.  WE MUST FIRST DETERMINE WHETHER PETITIONER'S ALLEGATIONS, IF
PROVED, WOULD ESTABLISH THE RIGHT TO HIS RELEASE. 

                                   I. 

NUMEROUS DECISIONS OF THIS COURT HAVE ESTABLISHED THE STANDARDS
GOVERNING THE ADMISSIBILITY OF CONFESSIONS INTO EVIDENCE.  IF AN
INDIVIDUAL'S "WILL WAS OVERBORNE" (FN2) OR IF HIS CONFESSION WAS NOT
"THE PRODUCT OF A RATIONAL INTELLECT AND A FREE WILL," (FN3) HIS
CONFESSION IS INADMISSIBLE BECAUSE COERCED.  THESE STANDARDS ARE
APPLICABLE WHETHER A CONFESSION IS THE PRODUCT OF PHYSICAL INTIMIDATION
OR PSYCHOLOGICAL PRESSURE AND, OF COURSE, ARE EQUALLY APPLICABLE TO A
DRUG-INDUCED STATEMENT.  IT IS DIFFICULT TO IMAGINE A SITUATION IN
WHICH A CONFESSION WOULD BE LESS THE PRODUCT OF A FREE INTELLECT, LESS
VOLUNTARY, THAN WHEN BROUGHT ABOUT BY A DRUG HAVING THE EFFECT OF A
"TRUTH SERUM."  (FN4)  IT IS NOT SIGNIFICANT THAT THE DRUG MAY HAVE
BEEN ADMINISTERED AND THE QUESTIONS ASKED BY PERSONS UNFAMILIAR WITH
HYOSCINE'S PROPERTIES AS A "TRUTH SERUM," IF THESE PROPERTIES EXIST. 
ANY QUESTIONING BY POLICE OFFICERS WHICH IN FACT PRODUCES A CONFESSION
WHICH IS NOT THE PRODUCT OF A FREE INTELLECT RENDERS THAT CONFESSION
INADMISSIBLE.  (FN5)  THE COURT HAS USUALLY SO STATED THE TEST.  SEE,
E.G., STROBLE V. CALIFORNIA, 343 U.S. 181, 190:  "IF THE CONFESSION
WHICH PETITIONER MADE  ...  WAS IN FACT INVOLUNTARY, THE CONVICTION
CANNOT STAND  ...  ."  AND IN BLACKBURN V. ALABAMA, 361 U.S. 199, WE
HELD IRRELEVANT THE ABSENCE OF EVIDENCE OF IMPROPER PURPOSE ON THE PART
OF THE QUESTIONING OFFICERS.  THERE THE EVIDENCE INDICATED THAT THE
INTERROGATING OFFICERS THOUGHT THE DEFENDANT SANE WHEN HE CONFESSED,
BUT WE JUDGED THE CONFESSION INADMISSIBLE BECAUSE THE PROBABILITY WAS
THAT THE DEFENDANT WAS IN FACT INSANE AT THE TIME. 

THUS WE CONCLUDE THAT THE PETITION FOR HABEAS CORPUS ALLEGED A
DEPRIVATION OF CONSTITUTIONAL RIGHTS.  THE REMAINING QUESTION BEFORE US
THEN IS WHETHER THE DISTRICT COURT WAS REQUIRED TO HOLD A HEARING TO
ASCERTAIN THE FACTS WHICH ARE A NECESSARY PREDICATE TO A DECISION OF
THE ULTIMATE CONSTITUTIONAL QUESTION. 

THE PROBLEM OF THE POWER AND DUTY OF FEDERAL JUDGES, ON HABEAS CORPUS,
TO HOLD EVIDENTIARY HEARINGS - THAT IS, TO TRY ISSUES OF FACT (FN6)
ANEW - IS A RECURRING ONE.  THE COURT LAST DEALT AT LENGTH WITH IT IN
BROWN V. ALLEN, 344 U.S. 443, IN OPINIONS BY JUSTICES REED AND
FRANKFURTER, BOTH SPEAKING FOR A MAJORITY OF THE COURT.  SINCE THEN, WE
HAVE BUT TOUCHED UPON IT.  (FN7) WE GRANTED CERTIORARI IN THE 1959 TERM
TO CONSIDER THE QUESTION, BUT ULTIMATELY DISPOSED OF THE CASE ON A MORE
IMMEDIATE GROUND.  ROGERS V. RICHMOND, 365 U.S. 534, 540.  IT HAS
BECOME APPARENT THAT THE OPINIONS IN BROWN V. ALLEN, SUPRA, DO NOT
PROVIDE ANSWERS FOR ALL ASPECTS OF THE HEARING PROBLEM FOR THE LOWER
FEDERAL COURTS, WHICH HAVE REACHED WIDELY DIVERGENT, IN FACT OFTEN
IRRECONCILABLE, RESULTS.  (FN8)  WE MEAN TO EXPRESS NO OPINION ON THE
CORRECTNESS OF PARTICULAR DECISIONS.  BUT WE THINK THAT IT IS
APPROPRIATE AT THIS TIME TO ELABORATE THE CONSIDERATIONS WHICH OUGHT
PROPERLY TO GOVERN THE GRANT OR DENIAL OF EVIDENTIARY HEARINGS IN
FEDERAL HABEAS CORPUS PROCEEDINGS. 

                          II. 

THE BROAD CONSIDERATIONS BEARING UPON THE PROPER INTERPRETATION OF
THE POWER OF THE FEDERAL COURTS ON HABEAS CORPUS ARE REVIEWED AT LENGTH
IN THE COURT'S OPINION IN FAY V. NOIA, POST, P. 391, AND NEED NOT BE
REPEATED HERE.  WE POINTED OUT THERE THAT THE HISTORIC CONCEPTION OF
THE WRIT, ANCHORED IN THE ANCIENT COMMON LAW AND IN OUR CONSTITUTION AS
AN EFFICACIOUS AND IMPERATIVE REMEDY FOR DETENTIONS OF FUNDAMENTAL
ILLEGALITY, HAS REMAINED CONSTANT TO THE PRESENT DAY.  WE POINTED OUT,
TOO, THAT THE ACT OF FEBRUARY 5, 1867, C. 28, SEC. 1, 14 STAT. 385-386,
WHICH IN EXTENDING THE FEDERAL WRIT TO STATE PRISONERS DESCRIBED THE
POWER OF THE FEDERAL COURTS TO TAKE TESTIMONY AND DETERMINE THE FACTS
DE NOVO IN THE LARGEST TERMS, RESTATED WHAT APPARENTLY WAS THE COMMON
LAW UNDERSTANDING.  FAY V. NOIA, POST, P. 416, N. 27.  THE HEARING
PROVISIONS OF THE 1867 ACT REMAIN SUBSTANTIALLY UNCHANGED IN THE
PRESENT CODIFICATION.  28 U.S.C. SEC. 2243.  IN CONSTRUING THE MANDATE
OF CONGRESS, SO PLAINLY DESIGNED TO AFFORD A TRIAL-TYPE PROCEEDING IN
FEDERAL COURT FOR STATE PRISONERS AGGRIEVED BY UNCONSTITUTIONAL
DETENTIONS, THIS COURT HAS CONSISTENTLY UPHELD THE POWER OF THE FEDERAL
COURTS ON HABEAS CORPUS TO TAKE EVIDENCE RELEVANT TO CLAIMS OF SUCH
DETENTION.  "SINCE FRANK V. MANGUM, 237 U.S. 309, 331, THIS COURT HAS
RECOGNIZED THAT HABEAS CORPUS IN THE FEDERAL COURTS BY ONE CONVICTED OF
A CRIMINAL OFFENSE IS A PROPER PROCEDURE 'TO SAFEGUARD THE LIBERTY OF
ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES AGAINST
INFRINGEMENT THROUGH ANY VIOLATION OF THE CONSTITUTION,' EVEN THOUGH
THE EVENTS WHICH WERE ALLEGED TO INFRINGE DID NOT APPEAR UPON THE FACE
OF THE RECORD OF HIS CONVICTION."  HAWK V. OLSON, 326 U.S. 271, 274. 
BROWN V. ALLEN AND NUMEROUS OTHER CASES HAVE RECOGNIZED THIS.    THE
RULE COULD NOT BE OTHERWISE.  THE WHOLE HISTORY OF THE WRIT - ITS
UNIQUE DEVELOPMENT - REFUTES A CONSTRUCTION OF THE FEDERAL COURTS'
HABEAS CORPUS POWERS THAT WOULD ASSIMILATE THEIR TASK TO THAT OF COURTS
OF APPELLATE REVIEW.  THE FUNCTION ON HABEAS IS DIFFERENT.  IT IS TO
TEST BY WAY OF AN ORIGINAL CIVIL PROCEEDING, INDEPENDENT OF THE NORMAL
CHANNELS OF REVIEW OF CRIMINAL JUDGMENTS, THE VERY GRAVEST
ALLEGATIONS.  STATE PRISONERS ARE ENTITLED TO RELIEF ON FEDERAL HABEAS
CORPUS ONLY UPON PROVING THAT THEIR DETENTION VIOLATES THE FUNDAMENTAL
LIBERTIES OF THE PERSON, SAFEGUARDED AGAINST STATE ACTION BY THE
FEDERAL CONSTITUTION.  SIMPLY BECAUSE DETENTION SO OBTAINED IS
INTOLERABLE, THE OPPORTUNITY FOR REDRESS, WHICH PRESUPPOSES THE
OPPORTUNITY TO BE HEARD, TO ARGUE AND PRESENT EVIDENCE, MUST NEVER BE
TOTALLY FORECLOSED.  SEE FRANK V. MANGUM, 237 U.S. 309, 345-350
(DISSENTING OPINION OF MR. JUSTICE HOLMES).  IT IS THE TYPICAL NOT THE
RARE, CASE IN WHICH CONSTITUTIONAL CLAIMS TURN UPON THE RESOLUTION OF
CONTESTED FACTUAL ISSUES.  THUS A NARROW VIEW OF THE HEARING POWER
WOULD TOTALLY SUBVERT CONGRESS' SPECIFIC AIM IN PASSING THE ACT OF
FEBRUARY 5, 1867, OF AFFORDING STATE PRISONERS A FORUM IN THE FEDERAL
TRIAL COURTS FOR THE DETERMINATION OF CLAIMS OF DETENTION IN VIOLATION
OF THE CONSTITUTION.  THE LANGUAGE OF CONGRESS, THE HISTORY OF THE
WRIT, THE DECISIONS OF THIS COURT, ALL MAKE CLEAR THAT THE POWER OF
INQUIRY ON FEDERAL HABEAS CORPUS IS PLENARY.  THEREFORE, WHERE AN
APPLICANT FOR A WRIT OF HABEAS CORPUS ALLEGES FACTS WHICH IF PROVED,
WOULD ENTITLE HIM TO RELIEF, THE FEDERAL COURT TO WHICH THE APPLICATION
IS MADE HAS THE POWER TO RECEIVE EVIDENCE AND TRY THE FACTS ANEW. 

                                  III. 

WE TURN NOW TO THE CONSIDERATIONS WHICH IN CERTAIN CASES MAY MAKE
EXERCISE OF THAT POWER MANDATORY.  THE APPROPRIATE STANDARD - WHICH
MUST BE CONSIDERED TO SUPERSEDE, TO THE EXTENT OF ANY INCONSISTENCIES,
THE OPINIONS IN BROWN V. ALLEN - IS THIS:  WHERE THE FACTS ARE IN
DISPUTE, THE FEDERAL COURT IN HABEAS CORPUS MUST HOLD AN EVIDENTIARY
HEARING IF THE HABEAS APPLICANT DID NOT RECEIVE A FULL AND FAIR
EVIDENTIARY HEARING IN A STATE COURT, EITHER AT THE TIME OF THE TRIAL
OR IN A COLLATERAL PROCEEDING.  IN OTHER WORDS A FEDERAL EVIDENTIARY
HEARING IS REQUIRED UNLESS THE STATE-COURT TRIER OF FACT HAS AFTER A
FULL HEARING RELIABLY FOUND THE RELEVANT FACTS.  (FN9) 

IT WOULD BE UNWISE TO OVERLY PARTICULARIZE THIS TEST.  THE FEDERAL
DISTRICT JUDGES ARE MORE INTIMATELY FAMILIAR WITH STATE CRIMINAL
JUSTICE, AND WITH THE TRIAL OF FACT, THAN ARE WE, AND TO THEIR SOUND
DISCRETION MUST BE LEFT IN VERY LARGE PART THE ADMINISTRATION OF
FEDERAL HABEAS CORPUS.  BUT EXPERIENCE PROVES THAT A TOO GENERAL
STANDARD - THE "EXCEPTIONAL CIRCUMSTANCES" AND "VITAL FLAW" TESTS OF
THE OPINIONS IN BROWN V. ALLEN - DOES NOT SERVE ADEQUATELY TO EXPLAIN
THE CONTROLLING CRITERIA FOR THE GUIDANCE OF THE FEDERAL HABEAS CORPUS
COURTS.  SOME PARTICULARIZATION MAY THEREFORE BY USEFUL.  WE HOLD THAT
A FEDERAL COURT MUST GRANT AN EVIDENTIARY HEARING TO A HABEAS APPLICANT
UNDER THE FOLLOWING CIRCUMSTANCES:  IF (1) THE MERITS OF THE FACTUAL
DISPUTE WERE NOT RESOLVED IN THE STATE HEARING; (2) THE STATE FACTUAL
DETERMINATION IS NOT FAIRLY SUPPORTED BY THE RECORD AS A WHOLE; (3) THE
FACT-FINDING PROCEDURE EMPLOYED BY THE STATE COURT WAS NOT ADEQUATE TO
AFFORD A FULL AND FAIR HEARING; (4) THERE IS A SUBSTANTIAL ALLEGATION
OF NEWLY DISCOVERED EVIDENCE; (5) THE MATERIAL FACTS WERE NOT
ADEQUATELY DEVELOPED AT THE STATE-COURT HEARING; OR (6) FOR ANY REASON
IT APPEARS THAT THE STATE TRIER OF FACT DID NOT AFFORD THE HABEAS
APPLICANT A FULL AND FAIR FACT HEARING. 

(1)  THERE CANNOT EVEN BE THE SEMBLANCE OF A FULL AND FAIR HEARING
UNLESS THE STATE COURT ACTUALLY REACHED AND DECIDED THE ISSUES OF FACT
TENDERED BY THE DEFENDANT.  THUS, IF NO EXPRESS FINDINGS OF FACT HAVE
BEEN MADE BY THE STATE COURT, THE DISTRICT COURT MUST INITIALLY
DETERMINE WHETHER THE STATE COURT HAS IMPLIEDLY FOUND MATERIAL FACTS. 
NO RELEVANT FINDINGS HAVE BEEN MADE UNLESS THE STATE COURT DECIDED THE
CONSTITUTIONAL CLAIM TENDERED BY THE DEFENDANT ON THE MERITS.  IF
RELIEF HAS BEEN DENIED IN PRIOR STATE COLLATERAL PROCEEDINGS AFTER A
HEARING BUT WITHOUT OPINION, IT IS OFTEN LIKELY THAT THE DECISION IS
BASED UPON A PROCEDURAL ISSUE - THAT THE CLAIM IS NOT COLLATERALY
COGNIZABLE - AND NOT ON THE MERITS.  ON THE OTHER HAND, IF THE PRIOR
STATE HEARING OCCURRED IN THE COURSE OF THE ORIGINAL TRIAL - FOR
EXAMPLE, ON A MOTION TO SUPPRESS ALLEGEDLY UNLAWFUL EVIDENCE, AS IN THE
INSTANT CASE - IT WILL USUALLY BE PROPER TO ASSUME THAT THE CLAIM WAS
REJECTED ON THE MERITS. 

IF THE STATE COURT HAS DECIDED THE MERITS OF THE CLAIM BUT HAS MADE
NO EXPRESS FINDINGS, IT MAY STILL BE POSSIBLE FOR THE DISTRICT COURT TO
RECONSTRUCT THE FINDINGS OF THE STATE TRIER OF FACT, EITHER BECAUSE HIS
VIEW OF THE FACTS IS PLAIN FROM HIS OPINION OR BECAUSE OF OTHER
INDICIA.  IN SOME CASES THIS WILL BE IMPOSSIBLE, AND THE FEDERAL
DISTRICT COURT WILL BE COMPELLED TO HOLD A HEARING. 

RECONSTRUCTION IS NOT POSSIBLE IF IT IS UNCLEAR WHETHER THE STATE
FINDING APPLIED CORRECT CONSTITUTIONAL STANDARDS IN DISPOSING OF THE
CLAIM.  UNDER SUCH CIRCUMSTANCES THE DISTRICT COURT CANNOT ASCERTAIN
WHETHER THE STATE COURT FOUND THE LAW OR THE FACTS ADVERSELY TO THE
PETITIONER'S CONTENTIONS.  SINCE THE DECISION OF THE STATE TRIER OF
FACT MAY REST UPON AN ERROR OF LAW RATHER THAN AN ADVERSE DETERMINATION
OF THE FACTS, A HEARING IS COMPELLED TO ASCERTAIN THE FACTS.  OF
COURSE, THE POSSIBILITY OF LEGAL ERROR MAY BE ELIMINATED IN MANY
SITUATIONS IF THE FACT FINDER HAS ARTICULATED THE CONSTITUTIONAL
STANDARDS WHICH HE HAS APPLIED.  FURTHERMORE, THE COEQUAL
RESPONSIBILITIES OF STATE AND FEDERAL JUDGES IN THE ADMINISTRATION OF
FEDERAL CONSTITUTIONAL LAW ARE SUCH THAT WE THINK THE DISTRICT JUDGE
MAY, IN THE ORDINARY CASE IN WHICH THERE HAS BEEN NO ARTICULATION,
PROPERLY ASSUME THAT THE STATE TRIER OF FACT APPLIED CORRECT STANDARDS
OF FEDERAL LAW TO THE FACTS, IN THE ABSENCE OF EVIDENCE, SUCH AS WAS
PRESENT IN ROGERS V. RICHMOND, THAT THERE IS REASON TO SUSPECT THAT AN
INCORRECT STANDARD WAS IN FACT APPLIED.  (FN10)  THUS, IF THIRD-DEGREE
METHODS OF OBTAINING A CONFESSION ARE ALLEGED AND THE STATE COURT
REFUSED TO EXCLUDE THE CONFESSION FROM EVIDENCE, THE DISTRICT JUDGE MAY
ASSUME THAT THE STATE TRIER FOUND THE FACTS AGAINST THE PETITIONER, THE
LAW BEING, OF COURSE, THAT THIRD-DEGREE METHODS NECESSARILY PRODUCE A
COERCED CONFESSION. 

IN ANY EVENT, EVEN IF IT IS CLEAR THAT THE STATE TRIER OF FACT
UTILIZED THE PROPER STANDARD, A HEARING IS SOMETIMES REQUIRED IF HIS
DECISION PRESENTS A SITUATION IN WHICH THE "SO-CALLED FACTS AND THEIR
CONSTITUTIONAL SIGNIFICANCE ARE  ...  SO BLENDED THAT THEY CANNOT BE
SEVERED IN CONSIDERATION."  ROGERS V. RICHMOND, SUPRA, AT 546.  SEE
FRANK V. MANGUM, SUPRA, AT 347 (HOLMES, J., DISSENTING).  UNLESS THE
DISTRICT JUDGE CAN BE REASONABLY CERTAIN THAT THE STATE TRIER WOULD
HAVE GRANTED RELIEF IF HE HAD BELIEVED PETITIONER'S ALLEGATIONS, HE
CANNOT BE SURE THAT THE STATE TRIER IN DENYING RELIEF DISBELIEVED THESE
ALLEGATIONS.  IF ANY COMBINATION OF THE FACTS ALLEGED WOULD PROVE A
VIOLATION OF CONSTITUTIONAL RIGHTS AND THE ISSUE OF LAW ON THOSE FACTS
PRESENTS A DIFFICULT OR NOVEL PROBLEM FOR DECISION, ANY HYPOTHESIS AS
TO THE RELEVANT FACTUAL DETERMINATIONS OF THE STATE TRIER INVOLVES THE
PUREST SPECULATION.  THE FEDERAL COURT CANNOT EXCLUDE THE POSSIBILITY
THAT THE TRIAL JUDGE BELIEVED FACTS WHICH SHOWED A DEPRIVATION OF
CONSTITUTIONAL RIGHTS AND YET (ERRONEOUSLY) CONCLUDED THAT RELIEF
SHOULD BE DENIED.  UNDER THESE CIRCUMSTANCES IT IS IMPOSSIBLE FOR THE
FEDERAL COURT TO RECONSTRUCT THE FACTS, AND A HEARING MUST BE HELD. 

(2)  THIS COURT HAS CONSISTENTLY HELD THAT STATE FACTUAL
DETERMINATIONS NOT FAIRLY SUPPORTED BY THE RECORD CANNOT BE CONCLUSIVE
OF FEDERAL RIGHTS.  FISKE V. KANSAS, 274 U.S. 380, 385; BLACKBURN V.
ALABAMA, 361 U.S. 199, 208-209.  WHERE THE FUNDAMENTAL LIBERTIES OF THE
PERSON ARE CLAIMED TO HAVE BEEN INFRINGED, WE CAREFULLY SCRUTINIZE THE
STATE-COURT RECORD.  SEE, E.G., BLACKBURN V. ALABAMA, SUPRA; MOORE V.
MICHIGAN, 355 U.S. 155.  THE DUTY OF THE FEDERAL DISTRICT COURT ON
HABEAS IS NO LESS EXACTING. 

(3)  HOWEVER, THE OBLIGATION OF THE FEDERAL DISTRICT COURT TO
SCRUTINIZE THE STATE-COURT FINDINGS OF FACT GOES FARTHER THAN THIS. 
EVEN IF ALL THE RELEVANT FACTS WERE PRESENTED IN THE STATE-COURT
HEARING, IT MAY BE THAT THE FACT-FINDING PROCEDURE THERE EMPLOYED WAS
NOT ADEQUATE FOR REACHING REASONABLY CORRECT RESULTS.  IF THE STATE
TRIAL JUDGE HAS MADE SERIOUS PROCEDURAL ERRORS (RESPECTING THE CLAIM
PRESSED IN FEDERAL HABEAS) IN SUCH THINGS AS THE BURDEN OF PROOF, A
FEDERAL HEARING IS REQUIRED.  EVEN WHERE THE PROCEDURE EMPLOYED DOES
NOT VIOLATE THE CONSTITUTION, IF IT APPEARS TO BE SERIOUSLY INADEQUATE
FOR THE ASCERTAINMENT OF THE TRUTH, IT IS THE FEDERAL JUDGE'S DUTY TO
DISREGARD THE STATE FINDINGS AND TAKE EVIDENCE ANEW.  OF COURSE, THERE
ARE PROCEDURAL ERRORS SO GRAVE AS TO REQUIRE AN APPROPRIATE ORDER
DIRECTING THE HABEAS APPLICANT'S RELEASE UNLESS THE STATE GRANTS A NEW
TRIAL FORTHWITH.  OUR PRESENT CONCERN IS WITH ERRORS WHICH, ALTHOUGH
LESS SERIOUS, ARE NEVERTHELESS GRAVE ENOUGH TO DEPRIVE THE STATE
EVIDENTIARY HEARING OF ITS ADEQUACY AS A MEANS OF FINALLY DETERMINING
FACTS UPON WHICH CONSTITUTIONAL RIGHTS DEPEND. 

(4)  WHERE NEWLY DISCOVERED EVIDENCE IS ALLEGED IN A HABEAS
APPLICATION, EVIDENCE WHICH COULD NOT REASONABLY HAVE BEEN PRESENTED TO
THE STATE TRIER OF FACTS, THE FEDERAL COURT MUST GRANT AN EVIDENTIARY
HEARING.  OF COURSE, SUCH EVIDENCE MUST BEAR UPON THE CONSTITUTIONALITY
OF THE APPLICANT'S DETENTION; THE EXISTENCE MERELY OF NEWLY DISCOVERED
EVIDENCE RELEVANT TO THE GUILT OF A STATE PRISONER IS NOT A GROUND FOR
RELIEF ON FEDERAL HABEAS CORPUS.  ALSO, THE DISTRICT JUDGE IS UNDER NO
OBLIGATION TO GRANT A HEARING UPON A FRIVOLOUS OR INCREDIBLE ALLEGATION
OF NEWLY DISCOVERED EVIDENCE. 

(5)  THE CONVENTIONAL NOTION OF THE KIND OF NEWLY DISCOVERED EVIDENCE
WHICH WILL PERMIT THE REOPENING OF A JUDGMENT IS, HOWEVER, IN SOME
RESPECTS TOO LIMITED TO PROVIDED COMPLETE GUIDANCE TO THE FEDERAL
DISTRICT JUDGE ON HABEAS.  IF, FOR ANY REASON NOT ATTRIBUTABLE TO THE
INEXCUSABLE NEGLECT OF PETITIONER, SEE FAY V. NOIA, POST, P. 438 (PART
V), EVIDENCE CRUCIAL TO THE ADEQUATE CONSIDERATION OF THE
CONSTITUTIONAL CLAIM WAS NOT DEVELOPED AT THE STATE HEARING, A FEDERAL
HEARING IS COMPELLED.  THE STANDARD OF INEXCUSABLE DEFAULT SET DOWN IN
FAY V. NOIA ADEQUATELY PROTECTS THE LEGITIMATE STATE INTEREST IN
ORDERLY CRIMINAL PROCEDURE, FOR IT DOES NOT SANCTION NEEDLESS PIECEMEAL
PRESENTATION OF CONSTITUTIONAL CLAIMS IN THE FORM OF DELIBERATE BY
PASSING OF STATE PROCEDURES.  COMPARE PRICE V. JOHNSTON, 334 U.S. 266,
291:  "THE PRIMARY PURPOSE OF A HABEAS CORPUS PROCEEDING IS TO MAKE
CERTAIN THAT A MAN IS NOT UNJUSTLY IMPRISONED.  AND IF FOR SOME
JUSTIFIABLE REASON HE WAS PREVIOUSLY UNABLE TO ASSERT HIS RIGHTS OR WAS
UNAWARE OF THE SIGNIFICANCE OF RELEVANT FACTS, IT IS NEITHER NECESSARY
NOR REASONABLE TO DENY HIM ALL OPPORTUNITY OF OBTAINING JUDICIAL
RELIEF." 

(6)  OUR FINAL CATEGORY IS INTENTIONALLY OPEN-ENDED BECAUSE WE CANNOT
HERE ANTICIPATE ALL THE SITUATIONS WHEREIN A HEARING IS DEMANDED.  IT
IS THE PROVINCE OF THE DISTRICT JUDGES FIRST TO DETERMINE SUCH
NECESSITIES IN ACCORDANCE WITH THE GENERAL RULES.  THE DUTY TO TRY THE
FACTS ANEW EXISTS IN EVERY CASE IN WHICH THE STATE COURT HAS NOT AFTER
A FULL HEARING RELIABLY FOUND THE RELEVANT FACTS. 

                                  IV. 

IT IS APPROPRIATE TO ADD A FEW OBSERVATIONS CONCERNING THE PROPER
APPLICATION OF THE TEST WE HAVE OUTLINED. 

FIRST.  THE PURPOSE OF THE TEST IS TO INDICATE THE SITUATIONS IN
WHICH THE HOLDING OF AN EVIDENTIARY HEARING IS MANDATORY.  IN ALL OTHER
CASES WHERE THE MATERIAL FACTS ARE IN DISPUTE, THE HOLDING OF SUCH A
HEARING IS IN THE DISCRETION OF THE DISTRICT JUDGE.  IF HE CONCLUDES
THAT THE HABEAS APPLICANT WAS AFFORDED A FULL AND FAIR HEARING BY THE
STATE COURT RESULTING IN RELIABLE FINDINGS, HE MAY, AND ORDINARILY
SHOULD, ACCEPT THE FACTS AS FOUND IN THE HEARING.  BUT HE NEED NOT. 
IN EVERY CASE HE HAS THE POWER, CONSTRAINED ONLY BY HIS SOUND
DISCRETION, TO RECEIVE EVIDENCE BEARING UPON THE APPLICANT'S
CONSTITUTIONAL CLAIM.  THERE IS EVERY REASON TO BE CONFIDENT THAT
FEDERAL DISTRICT JUDGES, MINDFUL OF THEIR DELICATE ROLE IN THE
MAINTENANCE OF PROPER FEDERAL-STATE RELATIONS, WILL NOT ABUSE THAT
DISCRETION.  WE HAVE NO FEAR THAT THE HEARING POWER WILL BE USED TO
SUBVERT THE INTEGRITY OF STATE CRIMINAL JUSTICE OR TO WASTE THE TIME OF
THE FEDERAL COURTS IN THE TRIAL OF FRIVOLOUS CLAIMS. 

SECOND.  ALTHOUGH THE DISTRICT JUDGE MAY, WHERE THE STATE COURT HAS
RELIABLY FOUND THE RELEVANT FACTS, DEFER TO THE STATE COURT'S FINDINGS
OF FACT, HE MAY NOT DEFER TO ITS FINDINGS OF LAW.  IT IS THE DISTRICT
JUDGE'S DUTY TO APPLY THE APPLICABLE FEDERAL LAW TO THE STATE COURT
FACT FINDINGS INDEPENDENTLY.  THE STATE CONCLUSIONS OF LAW MAY NOT BE
GIVEN BINDING WEIGHT ON HABEAS.  THAT WAS SETTLED IN BROWN V. ALLEN,
SUPRA, AT 506 (OPINION OF MR. JUSTICE FRANKFURTER).    THIRD.  A
DISTRICT COURT SITTING IN HABEAS CORPUS CLEARLY HAS THE POWER TO COMPEL
PRODUCTION OF THE COMPLETE STATE-COURT RECORD.  ORDINARILY SUCH A
RECORD - INCLUDING THE TRANSCRIPT OF TESTIMONY (OR IF UNAVAILABLE SOME
ADEQUATE SUBSTITUTE, SUCH AS A NARRATIVE RECORD), THE PLEADINGS, COURT
OPINIONS, AND OTHER PERTINENT DOCUMENTS - IS INDISPENSABLE TO
DETERMINING WHETHER THE HABEAS APPLICANT RECEIVED A FULL AND FAIR STATE
COURT EVIDENTIARY HEARING RESULTING IN RELIABLE FINDINGS.  SEE UNITED
STATES EX REL. JENNINGS V. RAGAN, 358 U.S. 276; TOWNSEND V. SAIN, 359
U.S. 64.  OF COURSE, IF BECAUSE NO RECORD CAN BE OBTAINED THE DISTRICT
JUDGE HAS NO WAY OF DETERMINING WHETHER A FULL AND FAIR HEARING WHICH
RESULTED IN FINDINGS OF RELEVANT FACT WAS VOUCHSAFED, HE MUST HOLD
ONE.  SO ALSO, THERE MAY BE CASES IN WHICH IT IS MORE CONVENIENT FOR
THE DISTRICT JUDGE TO HOLD AN EVIDENTIARY HEARING FORTHWITH RATHER THAN
COMPEL PRODUCTION OF THE RECORD.  IT IS CLEAR THAT HE HAS THE POWER TO
DO SO. 

FOURTH.  IT RESTS LARGELY WITH THE FEDERAL DISTRICT JUDGES TO GIVE
PRACTICAL FORM TO THE PRINCIPLES ANNOUNCED TODAY.  WE ARE AWARE THAT
THE TOO PROMISCUOUS GRANT OF EVIDENTIARY HEARINGS ON HABEAS COULD BOTH
SWAMP THE DOCKETS OF THE DISTRICT COURTS AND CAUSE ACUTE AND
UNNECESSARY FRICTION WITH STATE ORGANS OF CRIMINAL JUSTICE, WHILE THE
TOO LIMITED USE OF SUCH HEARINGS WOULD ALLOW MANY GRAVE CONSTITUTIONAL
ERRORS TO GO FOREVER UNCORRECTED.  THE ACCOMMODATION OF THESE COMPETING
FACTORS MUST BE MADE ON THE FRONT LINE, BY THE DISTRICT JUDGES WHO ARE
CONSCIOUS OF THEIR PARAMOUNT RESPONSIBILITY IN THIS AREA. 

       V. 

APPLICATION OF THE FOREGOING PRINCIPLES TO THE PARTICULAR LITIGATION
BEFORE US IS NOT DIFFICULT.  TOWNSEND RECEIVED AN EVIDENTIARY HEARING
AT HIS ORIGINAL TRIAL, WHERE HIS CONFESSION WAS HELD TO BE VOLUNTARY. 
HAVING EXHAUSTED HIS STATE REMEDIES WITHOUT RECEIVING ANY FURTHER SUCH
HEARING, HE TURNED TO THE FEDERAL DISTRICT COURT.  TWICE NOW, HABEAS
CORPUS RELIEF HAS BEEN DENIED WITHOUT AN EVIDENTIARY HEARING.  ON
APPEAL FROM THE SECOND DENIAL, THE COURT OF APPEALS HELD THAT "ON
HABEAS CORPUS, THE DISTRICT COURT'S INQUIRY IS LIMITED TO A STUDY OF
THE UNDISPUTED PORTIONS OF THE RECORD."  THAT FORMULATION WAS ERROR. 
AND WE BELIEVE THAT ON THIS RECORD IT WAS ALSO ERROR TO REFUSE TOWNSEND
AN EVIDENTIARY HEARING IN THE DISTRICT COURT.  THE STATE TRIAL JUDGE
RENDERED NEITHER AN OPINION, CONCLUSIONS OF LAW, NOR FINDINGS OF FACT. 
HE MADE NO CHARGE TO THE JURY SETTING FORTH THE CONSTITUTIONAL
STANDARDS GOVERNING THE ADMISSIBILITY OF CONFESSIONS.  IN SHORT, THERE
ARE NO INDICIA WHICH WOULD INDICATE WHETHER THE TRIAL JUDGE APPLIED THE
PROPER STANDARD OF FEDERAL LAW IN RULING UPON THE ADMISSIBILITY OF THE
CONFESSION.  THE ILLINOIS SUPREME COURT OPINION RENDERED AT THE TIME OF
DIRECT APPEAL CONTAINS STATEMENTS WHICH MIGHT INDICATE THAT THE COURT
THOUGHT THE CONFESSION WAS ADMISSIBLE IF IT SATISFIED THE "COHERENCY"
STANDARD.  UNDER THE TEST THE CONFESSION WOULD BE ADMISSIBLE "SO LONG
AS THE ACCUSED WAS  ...  CAPABLE OF MAKING A NARRATIVE OF PAST EVENTS
OR OF STATING HIS OWN PARTICIPATION IN THE CRIME  ...  ."  11 ILL. 2D,
AT 43, 141 N.E.2D, AT 736.  AS WE HAVE INDICATED IN PART I OF THIS
OPINION, THIS TEST IS NOT THE PROPER ONE.  POSSIBLY THE STATE TRIAL
JUDGE BELIEVED THAT THE ADMISSIBILITY OF ALLEGEDLY DRUG-INDUCED
CONFESSIONS WAS TO BE JUDGED BY THE "COHERENCY" STANDARD.  (FN11)
HOWEVER, EVEN IF THIS POSSIBILITY COULD BE ELIMINATED, AND IT COULD BE
ASCERTAINED THAT CORRECT STANDARDS OF LAW WERE APPLIED, IT IS STILL
UNCLEAR WHETHER THE STATE TRIAL JUDGE WOULD HAVE EXCLUDED TOWNSEND'S
CONFESSION AS INVOLUNTARY IF HE HAD BELIEVED THE EVIDENCE WHICH
TOWNSEND PRESENTED AT THE MOTION TO SUPPRESS.  THE PROBLEM WHICH THE
TRIAL JUDGE FACED WAS NOVEL AND BY NO MEANS WITHOUT DIFFICULTY.  WE
BELIEVE THAT THE FEDERAL DISTRICT COURT COULD NOT CONCLUDE THAT THE
STATE TRIAL JUDGE ADMITTED THE CONFESSION BECAUSE HE DISBELIEVED THE
EVIDENCE WHICH WOULD SHOW THAT IT WAS INVOLUNTARY.  WE BELIEVE THAT THE
FINDINGS OF FACT OF THE STATE TRIER COULD NOT BE SUCCESSFULLY
RECONSTRUCTED.  WE HOLD THAT, FOR THIS REASON, AN EVIDENTIARY HEARING
WAS COMPELLED.  (FN12) 

FURTHERMORE, A CRUCIAL FACT WAS NOT DISCLOSED AT THE STATE-COURT
HEARING:  THAT THE SUBSTANCE INJECTED INTO TOWNSEND BEFORE HE CONFESSED
HAS PROPERTIES WHICH MAY TRIGGER STATEMENTS IN A LEGAL SENSE
INVOLUNTARY.  (FN13)  THIS FACT WAS VITAL TO WHETHER HIS CONFESSION WAS
THE PRODUCT OF A FREE WILL AND THEREFORE ADMISSIBLE.  TO BE SURE, THERE
WAS MEDICAL TESTIMONY AS TO THE GENERAL PROPERTIES OF HYOSCINE, FROM
WHICH MIGHT HAVE BEEN INFERRED THE CONCLUSION THAT TOWNSEND'S POWER OF
RESISTANCE HAD BEEN DEBILITATED.  BUT THE CRUCIALLY INFORMATIVE
CHARACTERIZATION OF THE DRUG, THE CHARACTERIZATION WHICH WOULD HAVE
ENABLED THE JUDGE AND JURY, MERE LAYMEN, INTELLIGENTLY TO GRASP THE
NATURE OF THE SUBSTANCE UNDER INQUIRY, WAS INEXPLICABLY OMITTED FROM
THE MEDICAL EXPERTS' TESTIMONY.  UNDER THE CIRCUMSTANCES, DISCLOSURE OF
THE IDENTITY OF HYOSCINE AS A "TRUTH SERUM" WAS INDISPENSABLE TO A
FAIR, ROUNDED, DEVELOPMENT OF THE MATERIAL FACTS.  AND THE MEDICAL
EXPERTS' FAILURE TO TESTIFY FULLY CANNOT REALISTICALLY BE REGARDED AS
TOWNSEND'S INEXCUSABLE DEFAULT.  SEE FAY V. NOIA, POST, P. 438 (PART
V). 

ON THE REMAND IT WOULD NOT, OF COURSE, BE SUFFICIENT FOR THE DISTRICT
COURT MERELY TO HEAR NEW EVIDENCE AND TO READ THE STATE-COURT RECORD. 
WHERE AN UNRESOLVED FACTUAL DISPUTE EXISTS, DEMEANOR EVIDENCE IS A
SIGNIFICANT FACTOR IN ADJUDGING CREDIBILITY.  AND QUESTIONS OF
CREDIBILITY, OF COURSE, ARE BASIC TO RESOLUTION OF CONFLICTS IN
TESTIMONY.  TO BE SURE, THE STATE-COURT RECORD IS COMPETENT EVIDENCE,
(FN14) AND EITHER PARTY MAY CHOOSE TO RELY SOLELY UPON THE EVIDENCE
CONTAINED IN THAT RECORD, BUT THE PETITIONER, AND THE STATE, MUST BE
GIVEN THE OPPORTUNITY TO PRESENT OTHER TESTIMONIAL AND DOCUMENTARY
EVIDENCE RELEVANT TO THE DISPUTED ISSUES.  THIS WAS NOT DONE HERE. 

IN DECIDING THIS CASE AS WE DO, WE DO NOT MEAN TO PREJUDGE THE TRUTH
OF THE ALLEGATIONS OF THE PETITION FOR HABEAS CORPUS.  WE DECIDE ONLY
THAT ON THIS RECORD THE FEDERAL DISTRICT JUDGE WAS OBLIGED TO HOLD A
HEARING.  REVERSED AND REMANDED. 

FN1  THE FINAL DEFENSE WITNESS WHO TESTIFIED AT THE MOTION TO
SUPPRESS WAS EXCUSED.  THE FOLLOWING THEN TRANSPIRED: 

"MR. BRANION (A DEFENSE ATTORNEY):  THAT'S ALL WE HAVE, IF THE COURT
PLEASE. 

"THE COURT:  THE DEFENSE RESTS ON THIS HEARING? 

"MR. BRANION:  DEFENSE RESTS. 

"THE COURT:  ANYTHING FURTHER FROM THE STATE? 

"MR. MCGOVERN:  THE STATE RESTS FOR THE PURPOSE OF THIS HEARING,
JUDGE. 

"THE COURT:  GENTLEMEN, THE COURT WILL DENY THE MOTION TO SUPPRESS
AND ADMIT THE STATEMENT INTO EVIDENCE AND WE WILL PROCEED WITH THE
PRESENTATION OF THE EVIDENCE (TO THE JURY)." 

FN2  RECK V. PATE, 367 U.S. 433, 440. 

FN3  BLACKBURN V. ALABAMA, 361 U.S. 199, 208. 

FN4  OF COURSE, THERE ARE MANY RELEVANT CIRCUMSTANCES IN THIS CASE
WHICH A DISTRICT JUDGE WOULD BE REQUIRED TO CONSIDER IN DETERMINING
WHETHER THE INJECTION OF SCOPOLAMINE CAUSED TOWNSEND TO CONFESS. 
AMONG THESE ARE HIS LACK OF COUNSEL AT THE TIME, HIS DRUG ADDICTION,
THE FACT THAT HE WAS A "NEAR MENTAL DEFECTIVE," AND HIS YOUTH AND
INEXPERIENCE. 

FN5  RESPONDENTS DO NOT DISPUTE THIS.  IN FACT AT THE TIME OF THE
SECOND ARGUMENT BEFORE THE DISTRICT COURT RESPONDENTS STATED: 

"IF IT WAS A FACT - TO PUT IT VERY BLUNTLY AS WE WILL VERY SHORTLY,
AND ELABORATE UPON IT - IF A TRUTH SERUM WAS ADMINISTERED TO THE
PETITIONER AND HE WAS INFLUENCED BY THE TRUTH SERUM AND GAVE AN
INVOLUNTARY CONFESSION, UPON WHICH HIS CONVICTION OBTAINED, THEN THAT
IS IT." 

IT IS AT LEAST GENERALLY RECOGNIZED THAT THE ADMINISTRATION OF
SUFFICIENT DOSES OF SCOPOLAMINE WILL BREAK DOWN THE WILL.  THUS, IT IS
STATED IN THE DISPENSATORY OF THE UNITED STATES (25TH ED. 1955) 1223:
"MANY PERSONS ARE EXCESSIVELY SUSCEPTIBLE TO SCOPOLAMINE AND TOXIC
SYMPTOMS MAY OCCUR; SUCH SYMPTOMS ARE OFTEN VERY ALARMING.  THERE ARE
MARKED DISTURBANCES OF INTELLECTION, RANGING FROM COMPLETE
DISORIENTATION TO AN ACTIVE DELIRIUM  ...  ."  THE EARLY LITERATURE ON
THE SUBJECT DESIGNATED SCOPOLAMINE AS A "TRUTH SERUM."  IT WAS THOUGHT
TO PRODUCE TRUE CONFESSIONS BY CRIMINAL SUSPECTS.  E.G., HOUSE, WHY
TRUTH SERUM SHOULD BE MADE LEGAL, 42 MEDICO-LEGAL JOURNAL 138 (1925). 
AND AS RECENTLY AS 1940 DEAN WIGMORE SUGGESTED THAT SCOPOLAMINE MIGHT
BE USEFUL IN CRIMINAL INTERROGATION.  3 WIGMORE ON EVIDENCE (3D ED.
1940) SEC. 998, AT 642.  HOWEVER, SOME MORE RECENT COMMENTATORS SUGGEST
THAT SCOPOLAMINE'S USE IS NOT LIKELY TO PRODUCE TRUE CONFESSIONS.  ON
THE CONTRARY IT IS SAID: 

"UNFORTUNATELY, PERSONS UNDER THE INFLUENCE OF DRUGS ARE VERY
SUGGESTIBLE AND MAY CONFESS TO CRIMES WHICH THEY HAVE NOT COMMITTED. 
FALSE OR MISLEADING ANSWERS MAY BE GIVEN, ESPECIALLY WHEN QUESTIONS ARE
IMPROPERLY PHRASED.  FOR EXAMPLE, IF THE POLICE OFFICER ASSERTED IN A
CONFIDENT TONE 'YOU DID STEAL THE MONEY, DIDN'T YOU?', A SUGGESTIBLE
SUSPECT MIGHT EASILY GIVE A FALSE AFFIRMATIVE ANSWER."  MACDONALD,
TRUTH SERUM, 46 J. CRIM. L. 259, 259-260 (1955).  WE MAKE NO FINDINGS
AS TO EITHER THE MEDICAL PROPERTIES OF SCOPOLAMINE OR THE LIKELY EFFECT
OF THE DOSAGE ADMINISTERED TO TOWNSEND.  HOWEVER, WHETHER SCOPOLAMINE
PRODUCES TRUE CONFESSIONS OR FALSE CONFESSIONS, IF IT IN FACT CAUSED
TOWNSEND TO MAKE STATEMENTS, THOSE STATEMENTS WERE CONSTITUTIONALLY
INADMISSIBLE. 

FN6  BY "ISSUES OF FACT" WE MEAN TO REFER TO WHAT ARE TERMED BASIC,
PRIMARY, OR HISTORICAL FACTS: FACTS "IN THE SENSE OF A RECITAL OF
EXTERNAL EVENTS AND THE CREDIBILITY OF THEIR NARRATORS  ...  ."  BROWN
V. ALLEN, 344 U.S. 443, 506 (OPINION OF MR. JUSTICE FRANKFURTER).  SO
CALLED MIXED QUESTIONS OF FACT AND LAW, WHICH REQUIRE THE APPLICATION
OF A LEGAL STANDARD TO THE HISTORICAL-FACT DETERMINATIONS, ARE NOT
FACTS IN THIS SENSE. 

FN7  SEE THOMAS V. ARIZONA, 356 U.S. 390; ROGERS V. RICHMOND, 357
U.S. 220 (DENIAL OF CERTIORARI WITH ACCOMPANYING STATEMENT); UNITED
STATES EX REL. JENNINGS V. RAGEN, 358 U.S. 276 (PER CURIAM); TOWNSEND
V. SAIN, 359 U.S. 64 (PER CURIAM)(VACATING JUDGMENT ON AUTHORITY OF
JENNINGS V. RAGEN, SUPRA). 

FN8  SEE, E.G., UNITED STATES EX REL. TILLERY V. CAVELL, 294 F.2D 12
(C.A. 3D CIR.); SCHLETTE V. PEOPLE, 284 F.2D 827 (C.A. 9TH CIR.);
BOLLING V. SMYTH, 281 F.2D 192 (C.A.  4TH CIR.); CHAVEZ V. DICKSON, 280
F.2D 727 (C.A. 9TH CIR.); GAY V. GRAHAM, 269 F.2D 482 (C.A. 10TH CIR.);
UNITED STATES EX REL. ROGERS V. RICHMOND, 252 F.2D 807 (C.A.2D CIR.);
CERT. DENIED WITH ACCOMPANYING STATEMENT, 357 U.S. 220; UNITED STATES
EX REL.  ALVAREZ V. MURPHY, 246 F.2D 871 (C.A.2D CIR.), TYLER V.
PEPERSACK, 235 F.2D 29 (C.A.  4TH CIR.); CRANOR V. GONZALES, 226 F.2D
83 (C.A. 9TH CIR.); UNITED STATES EX REL. DEVITA V. MCCORKLE, 216 F.2D
743 (C.A. 3D CIR.).  SEE ALSO NOTE, HABEAS CORPUS: DEVELOPMENTS SINCE
BROWN V. ALLEN:  A SURVEY AND ANALYSIS, 53 NW. U.L. REV. 765; COMMENT,
FEDERAL HABEAS CORPUS REVIEW OF STATE CONVICTIONS:  AN INTERPLAY OF
APPELLATE AMBIGUITY AND DISTRICT COURT DISCRETION, 68 YALE L.J. 98. 

FN9  IN ANNOUNCING THIS TEST WE DO NOT MEAN TO IMPLY THAT THE STATE
COURTS ARE REQUIRED TO HOLD HEARINGS AND MAKE FINDINGS WHICH SATISFY
THIS STANDARD, BECAUSE SUCH HEARINGS ARE GOVERNED TO A LARGE EXTENT BY
STATE LAW. 

THE EXISTENCE OF THE EXHAUSTION OF STATE REMEDIES REQUIREMENT
(ANNOUNCED IN EX PARTE ROYALL, 117 U.S. 241, AND NOW CODIFIED IN 28
U.S.C. SEC. 2254) LENDS SUPPORT TO THE VIEW THAT A FEDERAL HEARING IS
NOT ALWAYS REQUIRED.  IT PRESUPPOSES THAT THE STATE'S ADJUDICATION OF
THE CONSTITUTIONAL ISSUE CAN BE OF AID TO THE FEDERAL COURT SITTING IN
HABEAS CORPUS. 

FN10 OF COURSE, UNDER ROGERS V. RICHMOND, A NEW TRIAL IS REQUIRED IF
THE TRIAL JUDGE OR THE JURY, IN FINDING THE FACTS, HAS BEEN GUIDED BY
AN ERRONEOUS STANDARD OF LAW.  HOWEVER, THERE WILL BE SITUATIONS IN
WHICH STATEMENTS OF THE TRIER OF FACT WILL DO NO MORE THAN CREATE DOUBT
AS TO WHETHER THE CORRECT STANDARD HAS BEEN APPLIED.  IN SUCH
SITUATIONS A DISTRICT COURT HEARING TO DETERMINE THE CONSTITUTIONAL
ISSUE WILL BE NECESSARY. 

FN11  THE CHARGE TO THE JURY DEALT ONLY WITH THE ISSUES OF
CREDIBILITY SO FAR AS THE CONFESSION WAS CONCERNED.  EVEN ACCEPTING THE
RELEVANCE OF THE INSTRUCTIONS, THERE IS NOTHING IN THE CHARGE TO THE
JURY TO SHOW THAT THE TRIAL JUDGE, LIKE THE SUPREME COURT, DID NOT
THINK THAT VOLUNTARINESS WAS CONCLUSIVELY ESTABLISHED BY A SHOWING THAT
THE DEFENDANT WAS COHERENT. 

FN12  THE DISSENT FAILS TO SAY WHY A HEARING WAS NOT REQUIRED FOR
THIS REASON.  AND "ACCEPTING THE COURT'S  ...  HEARING STANDARDS" AS
THE DISSENT DOES, IT CANNOT SERIOUSLY BE ARGUED THAT A HEARING WAS NOT
COMPELLED.  TRUE THE STATE TRIAL JUDGE INSTRUCTED THE JURY THAT IT
COULD DISREGARD THE CONFESSION ON GROUNDS OF CREDIBILITY IF IT BELIEVED
THE PETITIONER'S EXPERT.  BUT THIS HARDLY INDICATES WHETHER THE TRIAL
JUDGE, AT THE MOTION TO SUPPRESS, HIMSELF DISBELIEVED THE EXPERT OR
WHETHER HE THOUGH THAT, NOTWITHSTANDING THE TRUTH OF THE EXPERT'S
TESTIMONY, THE CONFESSION WAS VOLUNTARY.  MOTION TO SUPPRESS, HIMSELF
DISBELIEVED THE EXPERT OR WHETHER HE THOUGHT THAT, NOTWITHSTANDING (THE
SUBSTANCE INJECTED, ALONG WITH PHENOBARBITAL, INTO TOWNSEND) WAS
IDENTICAL TO SCOPOLAMINE, AND NEITHER WAS IT DISCLOSED THAT SCOPOLAMINE
IS FAMILIARLY KNOWN AS "TRUTH SERUM."  LATER ON IN THE TRIAL, THERE WAS
TESTIMONY THAT HYOSCINE IS IDENTICAL TO SCOPOLAMINE, BUT NOT THAT
SCOPOLAMINE (OR HYOSCINE) IS A "TRUTH SERUM." 

MR. JUSTICE GOLDBERG, CONCURRING. 

I JOIN IN THE OPINION AND JUDGMENT OF THE COURT AND ADD A FEW WORDS
BY WAY OF COMMENT ON THE DISSENTING OPINION OF MY BROTHER STEWART. 

I CANNOT AGREE WITH MR. JUSTICE STEWART THAT THE INSTRUCTIONS GIVEN
TO THE JURY BY THE TRIAL JUDGE ON THE ISSUE OF CREDIBILITY INDICATE THE
APPLICATION OF A PROPER CONSTITUTIONAL TEST TO MEASURE THE
VOLUNTARINESS - AND HENCE THE ADMISSIBILITY - OF THE PETITIONER'S
DISPUTED CONFESSION OF THE BOONE MURDER.  IN MY VIEW, THE VERY PORTIONS
OF THE INSTRUCTIONS EXCERPTED BY MY BROTHER STEWART SUPPORT, IF
ANYTHING, THE CONTRARY CONCLUSION THAT AN IMPROPER AND CONSTITUTIONALLY
IMPERMISSIBLE STANDARD WAS UTILIZED BY THE TRIAL JUDGE HIMSELF IN THE
SUPPRESSION HEARING.    IF, AS SUGGESTED BY MY BROTHER STEWART, THESE
INSTRUCTIONS ARE TAKEN TO EVIDENCE THE EXCLUSIONARY STANDARD APPLIED BY
THE TRIAL JUDGE IN RULING ON THE PETITIONER'S MOTION TO SUPPRESS, THEY
REFLECT ERROR OF CONSTITUTIONAL DIMENSION, AS DOES THE STANDARD OF
ADMISSIBILITY CONTAINED IN THE AFFIRMING OPINION OF THE ILLINOIS
SUPREME COURT.  WHILE THE APPELLATE COURT, AS POINTED OUT IN THE
OPINION OF THE CHIEF JUSTICE, SEE ANTE, PP. 319-321, APPEARS TO HAVE
ADOPTED A TEST OF "COHERENCY" TO MEASURE THE ADMISSIBILITY OF THE
CONFESSION, THE TRIAL COURT SEEMINGLY CONCLUDED THAT INDUCEMENT OF
AMNESIA WAS A PREREQUISITE TO DISREGARD OF THE CONFESSION.  BOTH
STANDARDS, WHETHER OR NOT INTENDED TO INCORPORATE SIMILAR ELEMENTS,
FAIL TO CONFORM TO THE REQUISITE TEST. 

THE THIRD PARAGRAPH OF THE INSTRUCTIONS QUOTED BY MY BROTHER STEWART
IN FOOTNOTE 2, POST, P. 330, ADVISES THE JURY THAT IT MIGHT DISCOUNT
THE CONFESSION IF IT FOUND THAT ADMINISTRATION OF THE DRUG CAUSED THE
PETITIONER TO "LOSE HIS MEMORY," TO SUFFER "A STATE OF AMNESIA" DURING
THE PERIOD OF QUESTIONING, AND TO BE UNABLE "TO CONTROL HIS ANSWERS OR
TO ASSERT HIS WILL BY DENYING THE CRIME CHARGED."  BY USE OF THE
CONJUNCTIVE TO INCORPORATE THE REQUIREMENT OF LOSS OF CONTROL, THIS
INSTRUCTION INDICATES THE TRIAL COURT'S APPARENT VIEW THAT IF THE DRUG
HAD THE EFFECT OF OVERBEARING THE PETITIONER'S WILL BUT DID NOT ALSO
CAUSE LOSS OF MEMORY, THE CONFESSION WOULD NONETHELESS REMAIN
ACCEPTABLE EVIDENCE OF GUILT.  THIS CONCLUSION IS BUTTRESSED BY THE
INSTRUCTION QUOTED IN THE CONCLUDING PARAGRAPH OF NOTE 2 IN MY BROTHER
STEWART'S DISSENTING OPINION, IN WHICH THE TRIAL COURT INDICATES THAT
THE CONFESSION MIGHT BE DISREGARDED BY THE JURY NOT SIMPLY IF THE DRUG
HAD THE EFFECT ASSERTED BY THE PETITIONER'S EXPERT IN RESPONSE TO A
HYPOTHETICAL QUESTION, BUT ONLY IF, IN ADDITION, THE DRUG SO AFFECTED
THE PETITIONER'S CONSCIOUSNESS THAT "HE DID NOT KNOW WHAT HE WAS
DOING."  THE PETITIONER MAY HAVE BEEN FULLY AWARE OF WHAT HE WAS DOING
IN CONFESSING AND MAY HAVE SUFFERED NO LOSS OF MEMORY, BUT THAT IS NOT
THE ISSUE.  THE CRUCIAL QUESTION, AND THE MEASURE OF EVIDENTIARY
PROPRIETY UNDER THE CONSTITUTION, IS WHETHER THE DRUG - WHATEVER THE
LABEL WAS OR WAS NOT AFFIXED TO IT - SO OVERBORE THE PETITIONER'S WILL
THAT HE WAS UNABLE TO RESIST CONFESSING.  WHETHER OR NOT HE WAS
CONSCIOUS OF WHAT HE WAS DOING, THE PETITIONER COULD, BECAUSE OF THE
DRUG, HAVE BEEN WHOLLY UNABLE TO STOP HIMSELF FROM ADMITTING GUILT.* 

*THE PETITIONER'S INITIAL RESISTANCE TO ADMITTING GUILT, HIS SUDDEN
CHANGE IN ATTITUDE, AND THE VERITABLE FLOOD OF CONFESSIONS SUCCEEDING
IMMEDIATELY UPON ADMINISTRATION OF THE DRUG TO HIM, SEE ANTE, PP. 306
307, ALL INDICATE THE REAL POSSIBILITY THAT HIS WILL WAS SO OVERBORNE. 
MOREOVER, THE RELIABILITY OF A NUMBER OF THESE CONFESSIONS IS SERIOUSLY
IMPAIRED.  SEE IBID. 

IN THE ABSENCE OF CONTRARY INDICATIONS, I THINK WE MUST RECOGNIZE
THAT THE MISCONCEPTION OF THE CONSTITUTIONAL STANDARD EVIDENCED BY
THESE INSTRUCTIONS MAY WELL HAVE INFECTED THE TRIAL JUDGE'S RULING AT
THE SUPPRESSION HEARING.  THE INFERENCE OF ERROR IS NOT NEGATIVED BY
THE REMAINDER OF THE INSTRUCTIONS, WHICH PERMIT DISREGARD OF THE
CONFESSION IF INDUCED BY FORCE, PHYSICAL OR MENTAL, DURESS, OR PROMISE
OF REWARD.  IN THE CONTEXT OF THE INSTRUCTIONS AS A WHOLE, THESE
REFERENCES TO "VOLUNTARINESS" DO NOT MEET THE PROBLEMS RAISED BY THE
ADMINISTRATION OF THE DRUG TO THE PETITIONER AND DO NOT VITIATE THE
CRUCIAL INFERENCE THAT THE TRIAL JUDGE VIEWED EXCLUSION AS DEPENDENT
UPON THE PRESENCE OF FACTS IN ADDITION TO A DRUG-INDUCED STERILIZATION
OF THE PETITIONER'S WILL. 

FOR THE REASONS CONTAINED IN THE OPINION OF THE COURT, AND ON THE
BASIS OF WHAT I BELIEVE TO BE THE WHOLLY FAIR INFERENCE THAT THE TRIAL
COURT MISCONCEIVED THE PROPER CONSTITUTIONAL MEASURE OF ADMISSIBILITY
OF THE PETITIONER'S CONFESSION, THE LACK OF ANY INDICATION THAT THE
TRIAL COURT DID UTILIZE THE CORRECT TEST, AND THE STATE APPELLATE
COURT'S APPARENT APPLICATION OF A SIMILARLY ERRONEOUS STANDARD, I AGREE
THAT A HEARING MUST BE HELD BELOW. 

FINALLY, THE COURT'S OPINION DOES NOT WARRANT MY BROTHER STEWART'S
CRITICISM AS TO THE PROPRIETY OR WISDOM OF ARTICULATING STANDARDS TO
GOVERN THE GRANT OF EVIDENTIARY HEARINGS IN HABEAS CORPUS PROCEEDINGS. 
THE SETTING OF CERTAIN STANDARDS IS ESSENTIAL TO DISPOSITION OF THIS
CASE AND A DEFINITION OF THEIR SCOPE AND APPLICATION IS AN APPROPRIATE
EXERCISE OF THIS COURT'S ADJUDICATORY OBLIGATIONS.  PARTICULARLY WHEN,
AS HERE, THE COURT IS DIRECTING THE FEDERAL JUDICIARY AS TO ITS ROLE IN
APPLYING THE HISTORIC REMEDY IN A DIFFICULT AND SENSITIVE AREA
INVOLVING LARGE ISSUES OF FEDERALISM, THE CAREFUL DISCHARGE OF OUR
FUNCTION COUNSELS THAT, "IN ORDER TO PRECLUDE INDIVIDUALIZED
ENFORCEMENT OF THE CONSTITUTION IN DIFFERENT PARTS OF THE NATION WE
...  LAY DOWN AS SPECIFICALLY AS THE NATURE OF THE PROBLEM PERMITS THE
STANDARDS OR DIRECTIONS THAT SHOULD GOVERN THE DISTRICT JUDGES IN THE
DISPOSITION OF APPLICATIONS FOR HABEAS CORPUS BY PRISONERS UNDER
SENTENCE OF STATE COURTS."  BROWN V. ALLEN, 344 U.S. 443, 501-502
(SEPARATE OPINION OF MR. JUSTICE FRANKFURTER). 

MR. JUSTICE STEWART, WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN, AND
MR. JUSTICE WHITE JOIN, DISSENTING. 

THE BASIS FOR MY DISAGREEMENT WITH THE COURT CAN PERHAPS BEST BE
EXPLAINED IF I DEFINE AT THE OUTSET THE SEVERAL AREAS IN WHICH I AM
ENTIRELY IN ACCORD WITH THE COURT'S OPINION.  FIRST, AS TO THE
UNDERLYING ISSUE OF CONSTITUTIONAL LAW, I COMPLETELY AGREE THAT A
CONFESSION INDUCED BY THE ADMINISTRATION OF DRUGS IS CONSTITUTIONALLY
INADMISSIBLE IN A CRIMINAL TRIAL.  SECONDLY, I AGREE THAT THE COURT OF
APPEALS IN THIS CASE STATED AN ERRONEOUS STANDARD WHEN IT SAID THAT "ON
HABEAS CORPUS, THE DISTRICT COURT'S INQUIRY IS LIMITED TO A STUDY OF
THE UNDISPUTED PORTIONS OF THE RECORD ...  ."  276 F.2D 324, 329. 
THIRDLY, I AGREE THAT WHERE AN APPLICANT FOR A WRIT OF HABEAS CORPUS
ALLEGES FACTS WHICH, IF PROVED, WOULD ENTITLE HIM TO RELIEF, THE
FEDERAL COURT TO WHICH THE APPLICATION IS MADE HAS THE POWER TO RECEIVE
EVIDENCE AND TRY THE FACTS ANEW.  (FN1) 

I DIFFER WITH THE COURT'S DISPOSITION OF THIS CASE IN TWO IMPORTANT
RESPECTS.  FIRST, I STRONGLY DOUBT THE WISDOM OF USING THIS CASE - OR
ANY OTHER - AS A VEHICLE FOR CATALOGUING IN ADVANCE A SET OF STANDARDS
WHICH ARE INFLEXIBLY TO COMPEL DISTRICT JUDGES TO GRANT EVIDENTIARY
HEARINGS IN HABEAS CORPUS PROCEEDINGS.  SECONDLY, I THINK THAT A DE
NOVO EVIDENTIARY HEARING IS NOT REQUIRED IN THE PRESENT CASE, EVEN
UNDER THE VERY STANDARDS WHICH THE COURT'S OPINION ELABORATES. 

                                   I. 

I HAVE NO QUARREL WITH THE COURT'S STATEMENT OF THE BASIC GOVERNING
PRINCIPLE WHICH SHOULD DETERMINE WHETHER A HEARING IS TO BE HAD IN A
FEDERAL HABEAS CORPUS PROCEEDING: "WHERE THE FACTS ARE IN DISPUTE, THE
FEDERAL COURT IN HABEAS CORPUS MUST HOLD AN EVIDENTIARY HEARING IF THE
HABEAS APPLICANT DID NOT RECEIVE A FULL AND FAIR EVIDENTIARY HEARING IN
A STATE COURT, EITHER AT THE TIME OF THE TRIAL OR IN A COLLATERAL
PROCEEDING."  ANTE, P. 312.  BUT THE COURT RIGHTLY SAYS THAT "IT WOULD
BE UNWISE TO OVERLY PARTICULARIZE THIS TEST," AND I THINK THAT IN
ATTEMPTING TO ERECT DETAILED HEARING STANDARDS FOR THE MYRIAD
SITUATIONS PRESENTED BY FEDERAL HABEAS CORPUS APPLICATIONS, THE COURT
DISREGARDS ITS OWN WISE ADMONITION. 

THE COURT HAS DONE LITTLE MORE TODAY THAN TO SUPPLY NEW PHRASES -
IMPRECISE IN SCOPE AND UNCERTAIN IN MEANING - FOR THE HABEAS CORPUS
VOCABULARY OF DISTRICT COURT JUDGES.  AND BECAUSE THEY PURPORT TO
ESTABLISH MANDATORY REQUIREMENTS RATHER THAN GUIDELINES, THE TESTS
ELABORATED IN THE COURT'S OPINION RUN THE SERIOUS RISK OF BECOMING
TALISMANIC PHRASES, THE MECHANISTIC INVOCATION OF WHICH WILL ALONE
DETERMINE WHETHER OR NOT A HEARING IS TO BE HAD. 

MORE FUNDAMENTALLY, THE ENUNCIATION OF AN ELABORATE SET OF STANDARDS
GOVERNING HABEAS CORPUS HEARINGS IS IN NO SENSE REQUIRED, OR EVEN
INVITED, IN ORDER TO DECIDE THE CASE BEFORE US, AND THE MANY PAGES OF
THE COURT'S OPINION WHICH SET THESE STANDARDS FORTH CANNOT, THEREFORE,
BE JUSTIFIED EVEN IN TERMS OF THE NORMAL FUNCTION OF DICTUM.  THE
REASONS FOR THE RULE AGAINST ADVISORY OPINIONS WHICH PURPORT TO DECIDE
QUESTIONS NOT ACTUALLY IN ISSUE ARE TOO WELL ESTABLISHED TO NEED
REPEATING AT THIS LATE DATE.  SEE, E.G., MARINE COOKS V. PANAMA S.S.
CO., 362 U.S. 365, 368, N. 5; MACHINISTS LOCAL V. LABOR BOARD, 362 U.S.
411, 415, N. 5.  I REGARD THESE REASONS AS PECULIARLY PERSUASIVE IN THE
PRESENT CONTEXT.  WE SHOULD NOT TRY TO HEDGE IN WITH INFLEXIBLE RULES
WHAT IS ESSENTIALLY AN EXTRAORDINARY WRIT, DESIGNED TO DO JUSTICE IN
EXTRAORDINARY AND OFTEN UNPREDICTABLE SITUATIONS. 

   II. 

EVEN ACCEPTING THE COURT'S DETAILED HEARING STANDARDS IN TOTO,
HOWEVER, I CANNOT AGREE THAT ANY ONE OF THEM REQUIRES THE DISTRICT
COURT TO HOLD A NEW EVIDENTIARY HEARING IN THE PRESENT CASE.  AND I
THINK, PUTTING THESE RIGID FORMULATIONS TO ONE SIDE, THAT ACCEPTED
PRINCIPLES GOVERNING THE FAIR AND PROMPT ADMINISTRATION OF CRIMINAL
JUSTICE WITHIN OUR FEDERAL SYSTEM AFFIRMATIVELY COUNSEL AGAINST A DE
NOVO FEDERAL COURT HEARING IN THIS CASE. 

THE COURT REFERS TO TWO SPECIFIC DEFECTS WHICH IT FEELS COMPEL A
HEARING IN THE DISTRICT COURT: THE ABSENCE OF "INDICIA WHICH WOULD
INDICATE WHETHER THE TRIAL JUDGE APPLIED THE PROPER STANDARDS OF
FEDERAL LAW IN RULING UPON THE ADMISSIBILITY OF THE CONFESSION" AND THE
FACT THAT IT WAS NOT DISCLOSED IN THE STATE HEARING THAT "THE SUBSTANCE
INJECTED INTO TOWNSEND BEFORE HE CONFESSED HAS PROPERTIES WHICH MAY
TRIGGER STATEMENTS IN A LEGAL SENSE INVOLUNTARY."  SINCE THE LENGTHY
EXTRACTS FROM THE TESTIMONY AND PLEADINGS IN THE COURT'S OPINION DO NOT
SEEM TO ME TO BEAR ON THESE ISSUES, IT BECOMES NECESSARY TO SKETCH THE
PRIOR PROCEEDINGS IN THIS CASE TO INDICATE WHY I THINK THE COURT IS
MISTAKEN IN CONCLUDING THAT A NEW HEARING IS REQUIRED. 

DURING THE EARLY MORNING HOURS OF JANUARY 1, 1954, THE PETITIONER WAS
ARRESTED BY THE CHICAGO POLICE.  HE ADMITTED HAVING GIVEN HIMSELF AN
INJECTION OF HEROIN 90 MINUTES BEFORE HIS ARREST.  WITHIN AN HOUR OF
HIS ARREST, HE WAS QUESTIONED FOR 30 MINUTES ABOUT VARIOUS CRIMES, ALL
OF WHICH HE DENIED HAVING COMMITTED.  HE WAS NOT QUESTIONED AGAIN UNTIL
THAT EVENING. 

SHORTLY AFTER THE EVENING QUESTIONING BEGAN, THE PETITIONER
COMPLAINED OF STOMACH PAINS AND REQUESTED A DOCTOR.  A POLICE SURGEON
WAS SUMMONED, AND HE ADMINISTERED AN INJECTION CONSISTING OF 2 CC.'S OF
A SALINE SOLUTION IN WHICH 1/230 GRAIN OF HYOSCINE HYDROBROMIDE AND 1/8
GRAIN OF PHENOBARBITAL WERE DISSOLVED.  SLIGHTLY MORE THAN AN HOUR
LATER, THE PETITIONER CONFESSED TO THE MURDER OF BOONE.  THE FOLLOWING
DAY, 15 HOURS AFTER THE POLICE SURGEON HAD ADMINISTERED THE HYOSCINE,
THE PETITIONER INITIALED A COPY OF HIS PREVIOUS NIGHT'S STATEMENT IN
THE OFFICES OF THE STATE'S ATTORNEY GENERAL.  AT THE CORONER'S HEARING
ON JANUARY 4, THE PETITIONER AGAIN CONFESSED TO THE BOONE KILLING. 

A. THE STANDARD OF FEDERAL LAW APPLIED BY THE STATE TRIAL COURT IN
RULING UPON THE ADMISSIBILITY OF THE CONFESSION. 

AT THE TRIAL, THE PETITIONER'S LAWYER OBJECTED TO INTRODUCTION OF THE
CONFESSION ON THE GROUND THAT IT WAS INVOLUNTARY.  IN ACCORDANCE WITH
ILLINOIS PRACTICE, THE MOTION TO SUPPRESS WAS ARGUED BEFORE THE JUDGE
IN THE ABSENCE OF THE JURY.  DURING THIS PROCEEDING, THE PETITIONER
TESTIFIED THAT THE INJECTION HAD PRODUCED A TEMPORARY STATE OF AMNESIA,
THAT HE COULD NOT REMEMBER MAKING ANY CONFESSION, AND THAT VARIOUS
OTHER PHYSICAL EFFECTS WERE PRODUCED.  THE POLICE OFFICERS PRESENT AT
THE PETITIONER'S QUESTIONING STATED THAT NO CHANGE IN THE PETITIONER'S
DEMEANOR SUGGESTING ANY LOSS OF HIS MENTAL FACULTIES HAD TAKEN PLACE AS
A RESULT OF THE INJECTION.  ON THE QUESTION OF THE POSSIBLE EFFECTS OF
THE INJECTION ADMINISTERED TO THE PETITIONER, DR. MANSFIELD, THE POLICE
SURGEON AND A LICENSED PHYSICIAN, TESTIFIED FOR THE STATE THAT HE HAD
TREATED THOUSANDS OF NARCOTICS ADDICTS SUFFERING FROM WITHDRAWAL
SYMPTOMS, THAT IN ABOUT 50% OF SUCH CASES HE HAD USED THE SAME
TREATMENT ADMINISTERED TO THE PETITIONER, AND THAT HE COULD RECALL NO
CASE IN HIS EXPERIENCE WHERE HIS USE OF HYOSCINE HAD PRODUCED LOSS OF
MEMORY.  A DOCTOR OF PHARMACOLOGY (WHO WAS NOT A LICENSED PHYSICIAN)
TESTIFIED ON BEHALF OF THE PETITIONER, AND IN ANSWER TO A HYPOTHETICAL
QUESTION STATED THAT A PERSON IN THE PETITIONER'S CONDITION AT THE TIME
OF INTERROGATION COULD HAVE BEEN SUFFERING AMNESIA AND PARTIAL LOSS OF
CONSCIOUSNESS AS THE RESULT OF THE TREATMENT WHICH HAD BEEN
ADMINISTERED TO RELIEVE THE NARCOTIC WITHDRAWAL SYMPTOMS.  ON CROSS
EXAMINATION, THIS WITNESS REVEALED THAT HE HAD NEVER ACTUALLY SEEN THE
EFFECTS OF HYOSCINE ON A HUMAN AND ADMITTED THAT HE WAS UNFAMILIAR WITH
ITS USE IN TREATING DRUG ADDICTS.  IT IS EVIDENT THAT A FINDER OF FACT
COULD WITH REASON HAVE ACCORDED MORE CREDIBILITY TO THE EVIDENCE
OFFERED BY THE PROSECUTION THAN TO THAT OFFERED BY THE DEFENSE. 

IT IS TRUE, AS THE COURT TODAY SAYS, THAT IN OVERRULING THE MOTION TO
SUPPRESS THE CONFESSION, THE TRIAL JUDGE DID NOT EXPLICITLY SPELL OUT
THE EXCLUSIONARY STANDARDS HE WAS APPLYING.  THE INSTRUCTIONS TO THE
JURY AT THE END OF THE CASE, HOWEVER, ALTHOUGH DIRECTED TO THE QUESTION
OF CREDIBILITY - SINCE THAT WAS THE ISSUE BEFORE THE JURY UNDER
ILLINOIS PROCEDURE - WERE COUCHED IN TERMS OF VOLUNTARINESS, AND THEY
CLEARLY ESTABLISHED THAT THE TRIAL JUDGE WAS AWARE OF THE CORRECT
CONSTITUTIONAL STANDARDS TO BE APPLIED.  (FN2)  NOTHING IN THE RECORD
INDICATES THAT AN INCORRECT STANDARD WAS APPLIED AT THE SUPPRESSION
HEARING.  GIVEN THESE CIRCUMSTANCES, I THINK IT COMPLETELY
IMPERMISSIBLE FOR US TO ASSUME THAT THE TRIAL JUDGE DID NOT APPLY "THE
PROPER STANDARD OF FEDERAL LAW IN RULING UPON THE ADMISSIBILITY OF THE
CONFESSION."  WHERE, AS HERE, A RECORD IS TOTALLY DEVOID OF ANY
INDICATION THAT A STATE TRIAL JUDGE EMPLOYED AN ERRONEOUS
CONSTITUTIONAL STANDARD, THE PRESUMPTION SHOULD SURELY BE THAT THE
JUDGE KNEW THE LAW AND CORRECTLY APPLIED IT.  CERTAINLY IT IS IMPROPER
TO PRESUME THAT THE TRIAL JUDGE DID NOT KNOW THE LAW WHICH THE
CONSTITUTION COMMANDS HIM TO FOLLOW.  YET THAT IS PRECISELY THE
PRESUMPTION WHICH THE COURT MAKES IN THIS CASE.    B. DISCLOSURE OF THE
"PROPERTIES" OF THE MEDICINE ADMINISTERED TO THE PETITIONER. 

MUCH OF THE EVIDENCE WHICH HAD BEEN PRESENTED TO THE JUDGE ALONE WAS
SUBSEQUENTLY BROUGHT BEFORE THE JURY BY DEFENSE COUNSEL IN AN ATTEMPT
TO DIMINISH THE WEIGHT TO BE GIVEN TO THE CONFESSION.  ADDITIONAL
EVIDENCE WAS ALSO ADDUCED BY THE PROSECUTION, INCLUDING TESTIMONY BY
ANOTHER LICENSED PHYSICIAN, WHO MADE CLEAR THAT HYOSCINE WAS IDENTICAL
WITH SCOPOLAMINE.  THE CASE WAS SUBMITTED TO THE JURY UNDER
UNEXCEPTIONABLE INSTRUCTIONS, (FN3) AND THE PETITIONER WAS CONVICTED
AND SENTENCED TO DEATH.  THE ILLINOIS SUPREME COURT, AFTER REVIEWING IN
DETAIL THE EVIDENCE BEARING ON THE VOLUNTARINESS OF THE CONFESSION,
AFFIRMED THE CONVICTION.  11 ILL. 2D 30, 141 N.E.2D 729.  THIS COURT
DENIED CERTIORARI, 355 U.S. 850; REHEARING DENIED, 355 U.S. 886. 

THE PETITIONER THEN INSTITUTED POST-CONVICTION PROCEEDINGS IN THE
STATE TRIAL COURT.  HIS CLAIM IN THESE PROCEEDINGS WAS THAT THE
CONFESSION HAD BEEN PROCURED AS A RESULT OF THE ADMINISTRATION OF
SCOPOLAMINE, THAT THE WITNESSES FOR THE STATE WERE AWARE OF THE
IDENTITY OF SCOPOLAMINE AND HYOSCINE AND HAD DELIBERATELY WITHHELD THE
FACT OF THIS IDENTITY AT TRIAL, AND THAT THE PETITIONER HAD
CONSEQUENTLY NOT BEEN AFFORDED AN OPPORTUNITY TO MAKE CLEAR THE BASIS
FOR HIS CLAIM THAT HIS CONFESSION HAD BEEN COERCED.  THE TRIAL COURT
DISMISSED THE PETITION, AND THE SUPREME COURT OF ILLINOIS AFFIRMED.  IN
AN UNPUBLISHED OPINION, THAT COURT CONCLUDED AS FOLLOWS: 

"A STUDY OF OUR OPINION ON THE ORIGINAL APPEAL DISCLOSES THAT ALL OF
THE EVIDENCE WITH RESPECT TO THE INJECTION OF HYOSCINE AND
PHENOBARBITAL WAS CAREFULLY CONSIDERED BY US IN RESOLVING THE ISSUE OF
THE VALIDITY OF PETITIONER'S CONFESSION.  (PEOPLE VS.  TOWNSEND, 11
ILL. 2D, 30, 35, 44).  THUS, IT IS CLEAR THAT THE ISSUE OF THE EFFECT
OF THE DRUG ON THE CONFESSION WAS BEFORE US  ...  .  THE ONLY MATTER
WHICH WAS NOT PRESENTED THEN WAS THE FACT THAT HYOSCINE AND SCOPOLAMINE
ARE IDENTICAL.  IN AN ATTEMPT TO ESCAPE FROM THE DOCTRINE OF RES
JUDICATA, THE PRESENT PETITION FOR A WRIT OF ERROR CONTENDS THAT THIS
FACT COULD NOT HAVE BEEN PRESENTED TO US BECAUSE IT WAS UNKNOWN TO
PETITIONER AND HIS COUNSEL AT THE TIME.  ASSUMING FOR THE MOMENT THE
TRUTH OF THIS STATEMENT, WE ARE OF THE OPINION THAT THE MERE FACT THAT
THE DRUG WHICH WAS ADMINISTERED TO PETITIONER IS KNOWN BY TWO DIFFERENT
NAMES PRESENTS NO CONSTITUTIONAL ISSUE.  AT THE ORIGINAL TRIAL THERE
WAS EXTENSIVE MEDICAL TESTIMONY AS TO THE PROPERTIES AND EFFECTS OF
HYOSCINE.  IF HYOSCINE AND SCOPOLAMINE ARE, IN FACT, IDENTICAL, THE
MEDICAL TESTIMONY AS TO THESE PROPERTIES AND EFFECTS WOULD BE THE SAME,
REGARDLESS OF THE NAME OF THE DRUG.  IN DETERMINING THE EFFECT OF THE
DRUG ON THE VALIDITY OF PETITIONER'S CONFESSION, THE VITAL ISSUE WAS
ITS NATURE AND ITS EFFECT, RATHER THAN ITS NAME.  THIS ISSUE WAS
THOROUGHLY PRESENTED, BOTH IN THE TRIAL COURT AND IN THIS COURT. 
FURTHERMORE, THE CLAIM BY PETITIONER NOW THAT THE STATE 'SUPPRESSED'
THIS IDENTITY OF HYOSCINE AND SCOPOLAMINE AT THE TRIAL IS DESTROYED BY
REFERENCE TO THE BILL OF EXCEPTIONS FROM THE ORIGINAL TRIAL.  A STATE
MEDICAL WITNESS, ON CROSS-EXAMINATION BY PETITIONER'S COUNSEL STATED:
'SCOPOLAMINE OR HYOSCINE ARE THE SAME.'" 

EVEN UNDER THE DETAILED HEARING REQUIREMENTS ANNOUNCED TODAY BY THE
COURT, THEREFORE, I THINK IT IS CLEAR THAT THE DISTRICT JUDGE HAD NO
CHOICE BUT TO CONCLUDE, ON THE BASIS OF HIS EXAMINATION OF THE FULL
RECORD OF THE STATE PROCEEDINGS, THAT A NEW HEARING ON HABEAS CORPUS
WOULD NOT BE PROPER.  FOR THE RECORD OF THE STATE PROCEEDINGS CLEARLY
SHOWS THAT THE PETITIONER RECEIVED A FULL AND FAIR HEARING AS TO THE
FACTUAL FOUNDATION FOR HIS CONSTITUTIONAL CLAIM - I.E., AS TO THE
PROPERTIES OF THE DRUG WHICH HAD BEEN ADMINISTERED TO HIM AND THE
CIRCUMSTANCES SURROUNDING HIS CONFESSION.  A TOTAL OF 3 MEDICAL EXPERTS
AND 17 LAY WITNESSES TESTIFIED.  THEIR TESTIMONY WAS IN CONFLICT.  THE
TRIAL COURT DETERMINED UPON THIS CONFLICTING EVIDENCE THAT THERE WAS NO
FACTUAL BASIS FOR THE PETITIONER'S CLAIM THAT HIS CONFESSION HAD BEEN
INVOLUNTARY.  THERE IS NOTHING WHATEVER IN THE RECORD TO SUPPORT AN
INFERENCE THAT THE TRIAL COURT DID NOT SCRUPULOUSLY APPLY A COMPLETELY
CORRECT CONSTITUTIONAL STANDARD IN DETERMINING THAT THE CONFESSION WAS
ADMISSIBLE.  (FN4)  THE TRIAL COURT'S DETERMINATION WAS FULLY REVIEWED
BY THE SUPREME COURT OF ILLINOIS ON APPEAL, AND REVIEWED AGAIN IN STATE
POST-CONVICTION PROCEEDINGS.  TO BE SURE, NO WITNESS AT THE TRIAL USED
THE PHRASE "TRUTH SERUM" - A PHRASE WHICH HAS NO PRECISE MEDICAL OR
SCIENTIFIC MEANING.  YET I CANNOT BUT AGREE WITH THE SUPREME COURT OF
ILLINOIS THAT THE MERE FACT THAT A DRUG MAY BE KNOWN BY MORE THAN ONE
NAME HARDLY PRESENTS A CONSTITUTIONAL ISSUE. 

UNDER OUR CONSTITUTION THE STATE OF ILLINOIS HAS THE POWER AND DUTY
TO ADMINISTER ITS OWN CRIMINAL JUSTICE.  IN CARRYING OUT THAT DUTY,
ILLINOIS MUST, AS MUST EACH STATE, CONFORM TO THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  I THINK ILLINOIS HAS CLEARLY ACCORDED THE
PETITIONER DUE PROCESS IN THIS CASE.  TO REQUIRE A FEDERAL COURT NOW TO
HOLD A NEW TRIAL OF FACTUAL CLAIMS WHICH WERE LONG AGO FULLY AND FAIRLY
DETERMINED IN THE COURTS OF ILLINOIS IS, I THINK, TO FRUSTRATE THE FAIR
AND PROMPT ADMINISTRATION OF CRIMINAL JUSTICE, TO DISRESPECT THE
FUNDAMENTAL STRUCTURE OF OUR FEDERAL SYSTEM, AND TO DEBASE THE GREAT
WRIT OF HABEAS CORPUS. 

I WOULD AFFIRM. 

FN1  INDEED, THE ORIGINAL VERSION OF 28 U.S.C. SEC. 2243 DIRECTED THE
COURT TO "PROCEED IN A SUMMARY WAY TO DETERMINE THE FACTS OF THE CASE,
BY HEARING THE TESTIMONY AND ARGUMENTS, AND THEREUPON TO DISPOSE OF THE
PARTY AS LAW AND JUSTICE REQUIRE."  SEE WALKER V. JOHNSTON, 312 U.S.
275, 283-284.  THE STATUTE WAS LATER REVISED SO THAT IT NOW PROVIDES
THAT "THE COURT SHALL SUMMARILY HEAR AND DETERMINE THE FACTS, AND
DISPOSE OF THE MATTER AS LAW AND JUSTICE REQUIRE."  THE REVISERS' NOTES
INDICATE THAT THE CHANGE WAS ONE OF "PHRASEOLOGY" AND NOT SUBSTANCE. 

WHERE THE STATE COURT HAS RELIABLY FOUND FACTS RELEVANT TO ANY ISSUE,
THE DISTRICT JUDGE IN SUCH A HEARING SHOULD, OF COURSE, GIVE
APPROPRIATE DEFERENCE TO SUCH FINDINGS.  SEE ANTE, P. 318. 

FN2  AMONG THE INSTRUCTIONS GIVEN WERE THE FOLLOWING: 

"THERE HAS BEEN ADMITTED INTO EVIDENCE A WRITTEN CONFESSION ALLEGED
TO HAVE BEEN MADE FREELY AND VOLUNTARILY BY THE DEFENDANT. 

"YOU ARE FURTHER INSTRUCTED THAT A CONFESSION MADE FREELY AND
VOLUNTARILY BY A PERSON CHARGED WITH A CRIME MAY BE CONSIDERED BY YOU,
BUT IF YOU FIND FROM THE EVIDENCE THAT ANY FORCE, PHYSICALLY OR
MENTALLY, HAS BEEN EXERTED UPON THE DEFENDANT BY THOSE HAVING THE
DEFENDANT IN CHARGE AFTER HIS ARREST IN ORDER TO OBTAIN A CONFESSION,
OR THAT THOSE PERSONS MADE ANY PROMISES TO REWARD HIM IF HE WOULD MAKE
SUCH A CONFESSION, THEN YOU MAY TOTALLY DISREGARD SUCH CONFESSION. 

"YOU ARE FURTHER INSTRUCTED THAT IF YOU FIND FROM THE EVIDENCE THAT
THE DEFENDANT WAS GIVEN DRUGS AND THAT SAID DRUGS CAUSED HIM TO LOSE
HIS MEMORY AND CREATE A STATE OF AMNESIA IN THE DEFENDANT DURING THE
QUESTIONING OF THIS DEFENDANT BY THE POLICE OR STATE'S ATTORNEY AND
THAT THE DEFENDANT WAS NOT ABLE TO CONTROL HIS ANSWERS OR TO ASSERT HIS
WILL BY DENYING THE CRIME CHARGED, THEN YOU MAY TOTALLY DISREGARD SUCH
CONFESSION. 

"YOU ARE INSTRUCTED THAT IF YOU FIND FROM THE EVIDENCE THAT ANY
INFLUENCE WAS USED ON THE DEFENDANT WHICH AMOUNTED TO DURESS UPON HIS
MIND OR BODY WHICH CAUSED HIM TO MAKE THE CONFESSION, THEN YOU MAY
TOTALLY DISREGARD THE CONFESSION. 

     *         *         * *         * 

"YOU ARE FURTHER INSTRUCTED THAT IF YOU BELIEVE FROM THE EVIDENCE IN
THIS CASE THAT DURESS OR INFLUENCE EITHER PHYSICALLY OR MENTALLY, WAS
EXERTED UPON THE DEFENDANT WHICH CAUSED HIM TO MAKE THE WRITTEN
CONFESSION WHICH HAS BEEN INTRODUCED INTO EVIDENCE, THEN YOU MAY
FURTHER CONSIDER WHETHER THIS INFLUENCE WAS STILL IN EXISTENCE AT THE
TIME THE DEFENDANT APPEARED AT THE CORONER'S INQUEST AND IS ALLEGED TO
HAVE MADE A CONFESSION THERE. 

"THERE HAS BEEN INTRODUCED INTO EVIDENCE THE TESTIMONY OF A WITNESS,
WHO IS IN THE CATEGORY KNOWN AS AN 'EXPERT WITNESS,' WHO TESTIFIED AS
TO WHAT INFLUENCE OR EFFECT CERTAIN DRUGS HAD UPON A HYPOTHETICAL
PERSON. 

"YOU ARE FURTHER INSTRUCTED THAT YOU MAY TAKE THIS TESTIMONY INTO
CONSIDERATION IN DETERMINING WHETHER THE DRUGS ALLEGED TO HAVE BEEN
ADMINISTERED TO THE DEFENDANT BY DR. MANSFIELD WOULD HAVE THE SAME
EFFECT UPON THE DEFENDANT THAT THE DRUG IN THE OPINION OF THE 'EXPERT
WITNESS' HAD UPON THE HYPOTHETICAL PERSON, AND IF YOU BELIEVE FROM ALL
THE EVIDENCE IN THIS CASE THAT THE DRUGS HAD THE EFFECT UPON THE
DEFENDANT TO CAUSE HIS CONSCIOUSNESS TO BE IMPAIRED TO THE EXTENT THAT
HE DID NOT KNOW THAT HE WAS DOING WHILE HE WAS BEING QUESTIONED BY
POLICE OFFICERS OR THE ASSISTANT STATE'S ATTORNEY, THEN YOU MAY TOTALLY
DISREGARD ANY STATEMENT OR CONFESSION THAT HE IS ALLEGED TO HAVE MADE
DURING THE TIME SUCH INFLUENCE, IF ANY, WAS EXERTED UPON HIM." 

FN3  SEE FOOTNOTE 2, SUPRA. 

FN4  SEE PP. 330-331, SUPRA.
..END :






GIDEON V. WAINWRIGHT 372 U.S. 335 


NO. 155.  ARGUED JANUARY 15, 1963.  - DECIDED MARCH 18, 1963.  -
REVERSED AND CAUSE REMANDED. 


CHARGED IN A FLORIDA STATE COURT WITH A NONCAPITAL FELONY, PETITIONER
APPEARED WITHOUT FUNDS AND WITHOUT COUNSEL AND ASKED THE COURT TO
APPOINT COUNSEL FOR HIM; BUT THIS WAS DENIED ON THE GROUND THAT THE
STATE LAW PERMITTED APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN
CAPITAL CASES ONLY.  PETITIONER CONDUCTED HIS OWN DEFENSE ABOUT AS WELL
AS COULD BE EXPECTED OF A LAYMAN; BUT HE WAS CONVICTED AND SENTENCED TO
IMPRISONMENT.  SUBSEQUENTLY, HE APPLIED TO THE STATE SUPREME COURT FOR
A WRIT OF HABEAS CORPUS, ON THE GROUND THAT HIS CONVICTION VIOLATED HIS
RIGHTS UNDER THE FEDERAL CONSTITUTION.  THE STATE SUPREME COURT DENIED
ALL RELIEF.  HELD:  THE RIGHT OF AN INDIGENT DEFENDANT IN A CRIMINAL
TRIAL TO HAVE THE ASSISTANCE OF COUNSEL IS A FUNDAMENTAL RIGHT
ESSENTIAL TO A FAIR TRIAL, AND PETITIONER'S TRIAL AND CONVICTION
WITHOUT THE ASSISTANCE OF COUNSEL VIOLATED THE FOURTEENTH AMENDMENT. 
BETTS V. BRADY, 316 U.S. 455, OVERRULED.  PP. 336-345. 

GIDEON V. WAINWRIGHT, CORRECTIONS DIRECTOR. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CHARGED IN A FLORIDA STATE COURT WITH HAVING BROKEN
AND ENTERED A POOLROOM WITH INTENT TO COMMIT A MISDEMEANOR.  THIS
OFFENSE IS A FELONY UNDER FLORIDA LAW.  APPEARING IN COURT WITHOUT
FUNDS AND WITHOUT A LAWYER, PETITIONER ASKED THE COURT TO APPOINT
COUNSEL FOR HIM, WHEREUPON THE FOLLOWING COLLOQUY TOOK PLACE: 

"THE COURT:  MR. GIDEON, I AM SORRY, BUT I CANNOT APPOINT COUNSEL TO
REPRESENT YOU IN THIS CASE.  UNDER THE LAWS OF THE STATE OF FLORIDA,
THE ONLY TIME THE COURT CAN APPOINT COUNSEL TO REPRESENT A DEFENDANT IS
WHEN THAT PERSON IS CHARGED WITH A CAPITAL OFFENSE.  I AM SORRY, BUT I
WILL HAVE TO DENY YOUR REQUEST TO APPOINT COUNSEL TO DEFEND YOU IN THIS
CASE. 

"THE DEFENDANT:  THE UNITED STATES SUPREME COURT SAYS I AM ENTITLED
TO BE REPRESENTED BY COUNSEL." 

PUT TO TRIAL BEFORE A JURY, GIDEON CONDUCTED HIS DEFENSE ABOUT AS
WELL AS COULD BE EXPECTED FROM A LAYMAN.  HE MADE AN OPENING STATEMENT
TO THE JURY, CROSS-EXAMINED THE STATE'S WITNESSES, PRESENTED WITNESSES
IN HIS OWN DEFENSE, DECLINED TO TESTIFY HIMSELF, AND MADE A SHORT
ARGUMENT "EMPHASIZING HIS INNOCENCE TO THE CHARGE CONTAINED IN THE
INFORMATION FILED IN THIS CASE."  THE JURY RETURNED A VERDICT OF
GUILTY, AND PETITIONER WAS SENTENCED TO SERVE FIVE YEARS IN THE STATE
PRISON.  LATER, PETITIONER FILED IN THE FLORIDA SUPREME COURT THIS
HABEAS CORPUS PETITION ATTACKING HIS CONVICTION AND SENTENCE ON THE
GROUND THAT THE TRIAL COURT'S REFUSAL TO APPOINT COUNSEL FOR HIM DENIED
HIM RIGHTS "GUARANTEED BY THE CONSTITUTION AND THE BILL OF RIGHTS BY
THE UNITED STATES GOVERNMENT."  (FN1)  TREATING THE PETITION FOR HABEAS
CORPUS AS PROPERLY BEFORE IT, THE STATE SUPREME COURT, "UPON
CONSIDERATION THEREOF" BUT WITHOUT AN OPINION, DENIED ALL RELIEF. 
SINCE 1942, WHEN BETTS V. BRADY, 316 U.S. 455, WAS DECIDED BY A DIVIDED
COURT, THE PROBLEM OF A DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO
COUNSEL IN A STATE COURT HAS BEEN A CONTINUING SOURCE OF CONTROVERSY
AND LITIGATION IN BOTH STATE AND FEDERAL COURTS.  (FN2)  TO GIVE THIS
PROBLEM ANOTHER REVIEW HERE, WE GRANTED CERTIORARI.  370 U.S. 908. 
SINCE GIDEON WAS PROCEEDING IN FORMA PAUPERIS, WE APPOINTED COUNSEL TO
REPRESENT HIM AND REQUESTED BOTH SIDES TO DISCUSS IN THEIR BRIEFS AND
ORAL ARGUMENTS THE FOLLOWING: "SHOULD THIS COURT'S HOLDING IN BETTS V.
BRADY, 316 U.S. 455, BE RECONSIDERED?" 

                    I. 

THE FACTS UPON WHICH BETTS CLAIMED THAT HE HAD BEEN
UNCONSTITUTIONALLY DENIED THE RIGHT TO HAVE COUNSEL APPOINTED TO ASSIST
HIM ARE STRIKINGLY LIKE THE FACTS UPON WHICH GIDEON HERE BASES HIS
FEDERAL CONSTITUTIONAL CLAIM.  BETTS WAS INDICTED FOR ROBBERY IN A
MARYLAND STATE COURT.  ON ARRAIGNMENT, HE TOLD THE TRIAL JUDGE OF HIS
LACK OF FUNDS TO HIRE A LAWYER AND ASKED THE COURT TO APPOINT ONE FOR
HIM.  BETTS WAS ADVISED THAT IT WAS NOT THE PRACTICE IN THAT COUNTY TO
APPOINT COUNSEL FOR INDIGENT DEFENDANTS EXCEPT IN MURDER AND RAPE
CASES.  HE THEN PLEADED NOT GUILTY, HAD WITNESSES SUMMONED, CROSS
EXAMINED THE STATE'S WITNESSES, EXAMINED HIS OWN, AND CHOSE NOT TO
TESTIFY HIMSELF.  HE WAS FOUND GUILTY BY THE JUDGE, SITTING WITHOUT A
JURY, AND SENTENCED TO EIGHT YEARS IN PRISON.  LIKE GIDEON, BETTS
SOUGHT RELEASE BY HABEAS CORPUS, ALLEGING THAT HE HAD BEEN DENIED THE
RIGHT TO ASSISTANCE OF COUNSEL IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  BETTS WAS DENIED ANY RELIEF, AND ON REVIEW THIS COURT
AFFIRMED.  IT WAS HELD THAT A REFUSAL TO APPOINT COUNSEL FOR AN
INDIGENT DEFENDANT CHARGED WITH A FELONY DID NOT NECESSARILY VIOLATE
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, WHICH FOR REASONS
GIVEN THE COURT DEEMED TO BE THE ONLY APPLICABLE FEDERAL CONSTITUTIONAL
PROVISION.  THE COURT SAID: 

"ASSERTED DENIAL (OF DUE PROCESS) IS TO BE TESTED BY AN APPRAISAL OF
THE TOTALITY OF FACTS IN A GIVEN CASE.  THAT WHICH MAY, IN ONE SETTING,
CONSTITUTE A DENIAL OF FUNDAMENTAL FAIRNESS, SHOCKING TO THE UNIVERSAL
SENSE OF JUSTICE, MAY, IN OTHER CIRCUMSTANCES, AND IN THE LIGHT OF
OTHER CONSIDERATIONS, FALL SHORT OF SUCH DENIAL."  316 U.S., AT 462. 

TREATING DUE PROCESS AS "A CONCEPT LESS RIGID AND MORE FLUID THAN
THOSE ENVISAGED IN OTHER SPECIFIC AND PARTICULAR PROVISIONS OF THE BILL
OF RIGHTS," THE COURT HELD THAT REFUSAL TO APPOINT COUNSEL UNDER THE
PARTICULAR FACTS AND CIRCUMSTANCES IN THE BETTS CASE WAS NOT SO
"OFFENSIVE TO THE COMMON AND FUNDAMENTAL IDEAS OF FAIRNESS" AS TO
AMOUNT TO A DENIAL OF DUE PROCESS.  SINCE THE FACTS AND CIRCUMSTANCES
OF THE TWO CASES ARE SO NEARLY INDISTINGUISHABLE, WE THINK THE BETTS V.
BRADY HOLDING IF LEFT STANDING WOULD REQUIRE US TO REJECT GIDEON'S
CLAIM THAT THE CONSTITUTION GUARANTEES HIM THE ASSISTANCE OF COUNSEL. 
UPON FULL RECONSIDERATION WE CONCLUDE THAT BETTS V. BRADY SHOULD BE
OVERRULED. 

                              II. 

THE SIXTH AMENDMENT PROVIDES, "IN ALL CRIMINAL PROSECUTIONS, THE
ACCUSED SHALL ENJOY THE RIGHT ...  TO HAVE THE ASSISTANCE OF COUNSEL
FOR HIS DEFENCE."  WE HAVE CONSTRUED THIS TO MEAN THAT IN FEDERAL
COURTS COUNSEL MUST BE PROVIDED FOR DEFENDANTS UNABLE TO EMPLOY COUNSEL
UNLESS THE RIGHT IS COMPETENTLY AND INTELLIGENTLY WAIVED.  (FN3)  BETTS
ARGUED THAT THIS RIGHT IS EXTENDED TO INDIGENT DEFENDANTS IN STATE
COURTS BY THE FOURTEENTH AMENDMENT.  IN RESPONSE THE COURT STATED THAT,
WHILE THE SIXTH AMENDMENT LAID DOWN "NO RULE FOR THE CONDUCT OF THE
STATES, THE QUESTION RECURS WHETHER THE CONSTRAINT LAID BY THE
AMENDMENT UPON THE NATIONAL COURTS EXPRESSES A RULE SO FUNDAMENTAL AND
ESSENTIAL TO A FAIR TRIAL, AND SO, TO DUE PROCESS OF LAW, THAT IT IS
MADE OBLIGATORY UPON THE STATES BY THE FOURTEENTH AMENDMENT."  316
U.S., AT 465.  IN ORDER TO DECIDE WHETHER THE SIXTH AMENDMENT'S
GUARANTEE OF COUNSEL IS OF THIS FUNDAMENTAL NATURE, THE COURT IN BETTS
SET OUT AND CONSIDERED "RELEVANT DATA ON THE SUBJECT  ...  AFFORDED BY
CONSTITUTIONAL AND STATUTORY PROVISIONS SUBSISTING IN THE COLONIES AND
THE STATES PRIOR TO THE INCLUSION OF THE BILL OF RIGHTS IN THE NATIONAL
CONSTITUTION, AND IN THE CONSTITUTIONAL, LEGISLATIVE AND JUDICIAL
HISTORY OF THE STATES TO THE PRESENT DATE."  316 U.S., AT 465.  ON THE
BASIS OF THIS HISTORICAL DATA THE COURT CONCLUDED THAT "APPOINTMENT OF
COUNSEL IS NOT A FUNDAMENTAL RIGHT, ESSENTIAL TO A FAIR TRIAL."  316
U.S., AT 471.  IT WAS FOR THIS REASON THE BETTS COURT REFUSED TO ACCEPT
THE CONTENTION THAT THE SIXTH AMENDMENT'S GUARANTEE OF COUNSEL FOR
INDIGENT FEDERAL DEFENDANTS WAS EXTENDED TO OR, IN THE WORDS OF THAT
COURT, "MADE OBLIGATORY UPON THE STATES BY THE FOURTEENTH AMENDMENT." 
PLAINLY, HAD THE COURT CONCLUDED THAT APPOINTMENT OF COUNSEL FOR AN
INDIGENT CRIMINAL DEFENDANT WAS "A FUNDAMENTAL RIGHT, ESSENTIAL TO A
FAIR TRIAL," IT WOULD HAVE HELD THAT THE FOURTEENTH AMENDMENT REQUIRES
APPOINTMENT OF COUNSEL IN A STATE COURT, JUST AS THE SIXTH AMENDMENT
REQUIRES IN A FEDERAL COURT. 

WE THINK THE COURT IN BETTS HAD AMPLE PRECEDENT FOR ACKNOWLEDGING
THAT THOSE GUARANTEES OF THE BILL OF RIGHTS WHICH ARE FUNDAMENTAL
SAFEGUARDS OF LIBERTY IMMUNE FROM FEDERAL ABRIDGMENT ARE EQUALLY
PROTECTED AGAINST STATE INVASION BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  THIS SAME PRINCIPLE WAS RECOGNIZED, EXPLAINED,
AND APPLIED IN POWELL V. ALABAMA, 287 U.S. 45 (1932), A CASE UPHOLDING
THE RIGHT OF COUNSEL, WHERE THE COURT HELD THAT DESPITE SWEEPING
LANGUAGE TO THE CONTRARY IN HURTADO V. CALIFORNIA, 110 U.S. 516 (1884),
THE FOURTEENTH AMENDMENT "EMBRACED" THOSE "FUNDAMENTAL PRINCIPLES OF
LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR CIVIL AND
POLITICAL INSTITUTIONS,'" EVEN THOUGH THEY HAD BEEN "SPECIFICALLY DEALT
WITH IN ANOTHER PART OF THE FEDERAL CONSTITUTION."  287 U.S., AT 67. 
IN MANY CASES OTHER THAN POWELL AND BETTS, THIS COURT HAS LOOKED TO THE
FUNDAMENTAL NATURE OF ORIGINAL BILL OF RIGHTS GUARANTEES TO DECIDE
WHETHER THE FOURTEENTH AMENDMENT MAKES THEM OBLIGATORY ON THE STATES. 
EXPLICITLY RECOGNIZED TO BE OF THIS "FUNDAMENTAL NATURE" AND THEREFORE
MADE IMMUNE FROM STATE INVASION BY THE FOURTEENTH, OR SOME PART OF IT,
ARE THE FIRST AMENDMENT'S FREEDOMS OF SPEECH, PRESS, RELIGION,
ASSEMBLY, ASSOCIATION, AND PETITION FOR REDRESS OF GRIEVANCES.  (FN4)
FOR THE SAME REASON, THOUGH NOT ALWAYS IN PRECISELY THE SAME
TERMINOLOGY, THE COURT HAS MADE OBLIGATORY ON THE STATES THE FIFTH
AMENDMENT'S COMMAND THAT PRIVATE PROPERTY SHALL NOT BE TAKEN FOR PUBLIC
USE WITHOUT JUST COMPENSATION, (FN5) THE FOURTH AMENDMENT'S PROHIBITION
OF UNREASONABLE SEARCHES AND SEIZURES, (FN6) AND THE EIGHTH'S BAN ON
CRUEL AND UNUSUAL PUNISHMENT.  (FN7)  ON THE OTHER HAND, THIS COURT IN
PALKO V. CONNECTICUT, 302 U.S. 319 (1937), REFUSED TO HOLD THAT THE
FOURTEENTH AMENDMENT MADE THE DOUBLE JEOPARDY PROVISION OF THE FIFTH
AMENDMENT OBLIGATORY TO THE STATES.  IN SO REFUSING, HOWEVER, THE
COURT, SPEAKING THROUGH MR. JUSTICE CARDOZO, WAS CAREFUL TO EMPHASIZE
THAT "IMMUNITIES THAT ARE VALID AS AGAINST THE FEDERAL GOVERNMENT BY
FORCE OF THE SPECIFIC PLEDGES OF PARTICULAR AMENDMENTS HAVE BEEN FOUND
TO BE IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY, AND THUS, THROUGH THE
FOURTEENTH AMENDMENT, BECOME VALID AS AGAINST THE STATES" AND THAT
GUARANTEES "IN THEIR ORIGIN  ...  EFFECTIVE AGAINST THE FEDERAL
GOVERNMENT ALONE" HAD BY PRIOR CASES "BEEN TAKEN OVER FROM THE EARLIER
ARTICLES OF THE FEDERAL BILL OF RIGHTS AND BROUGHT WITHIN THE
FOURTEENTH AMENDMENT BY A PROCESS OF ABSORPTION."  302 U.S., AT 324
325, 326. 

WE ACCEPT BETTS V. BRADY'S ASSUMPTION, BASED AS IT WAS ON OUR PRIOR
CASES, THAT A PROVISION OF THE BILL OF RIGHTS WHICH IS "FUNDAMENTAL AND
ESSENTIAL TO A FAIR TRIAL" IS MADE OBLIGATORY UPON THE STATES BY THE
FOURTEENTH AMENDMENT.  WE THINK THE COURT IN BETTS WAS WRONG, HOWEVER,
IN CONCLUDING THAT THE SIXTH AMENDMENT'S GUARANTEE OF COUNSEL IS NOT
ONE OF THESE FUNDAMENTAL RIGHTS.  TEN YEARS BEFORE BETTS V. BRADY, THIS
COURT, AFTER FULL CONSIDERATION OF ALL THE HISTORICAL DATA EXAMINED IN
BETTS, HAD UNEQUIVOCALLY DECLARED THAT "THE RIGHT TO THE AID OF COUNSEL
IS OF THIS FUNDAMENTAL CHARACTER."  POWELL V. ALAMAMA, 287 U.S. 45, 68
(1932).  WHILE THE COURT AT THE CLOSE OF ITS POWELL OPINION DID BY ITS
LANGUAGE, AS THIS COURT FREQUENTLY DOES, LIMIT ITS HOLDING TO THE
PARTICULAR FACTS AND CIRCUMSTANCES OF THAT CASE, ITS CONCLUSIONS ABOUT
THE FUNDAMENTAL NATURE OF THE RIGHT TO COUNSEL ARE UNMISTAKABLE. 
SEVERAL YEARS LATER, IN 1936, THE COURT REEMPHASIZED WHAT IT HAD SAID
ABOUT THE FUNDAMENTAL NATURE OF THE RIGHT TO COUNSEL IN THIS LANGUAGE: 

"WE CONCLUDED THAT CERTAIN FUNDAMENTAL RIGHTS, SAFEGUARDED BY THE
FIRST EIGHT AMENDMENTS AGAINST FEDERAL ACTION, WERE ALSO SAFEGUARDED
AGAINST STATE ACTION BY THE DUE PROCESS OF LAW CLAUSE OF THE FOURTEENTH
AMENDMENT, AND AMONG THEM THE FUNDAMENTAL RIGHT OF THE ACCUSED TO THE
AID OF COUNSEL IN A CRIMINAL PROSECUTION."  GROSJEAN V. AMERICAN PRESS
CO., 297 U.S. 233, 243-244 (1936). 

AND AGAIN IN 1938 THIS COURT SAID: 

"THE ASSISTANCE OF COUNSEL IS ONE OF THE SAFEGUARDS OF THE SIXTH
AMENDMENT DEEMED NECESSARY TO INSURE FUNDAMENTAL HUMAN RIGHTS OF LIFE
AND LIBERTY  ...  .  THE SIXTH AMENDMENT STANDS AS A CONSTANT
ADMONITION THAT IF THE CONSTITUTIONAL SAFEGUARDS IT PROVIDES BE LOST,
JUSTICE WILL NOT 'STILL BE DONE.'"  JOHNSON V. ZERBST, 304 U.S. 458,
462 (1938).  TO THE SAME EFFECT, SEE AVERY V. ALABAMA, 308 U.S. 444
(1940), AND SMITH V. O'GRADY, 312 U.S. 329 (1941). 

IN LIGHT OF THESE AND MANY OTHER PRIOR DECISIONS OF THIS COURT, IT IS
NOT SURPRISING THAT THE BETTS COURT, WHEN FACED WITH THE CONTENTION
THAT "ONE CHARGED WITH CRIME, WHO IS UNABLE TO OBTAIN COUNSEL, MUST BE
FURNISHED COUNSEL BY THE STATE," CONCEDED THAT "EXPRESSIONS IN THE
OPINIONS OF THIS COURT LEND COLOR TO THE ARGUMENT  ...  ."  316 U.S.,
AT 462-463.  THE FACT IS THAT IN DECIDING AS IT DID - THAT "APPOINTMENT
OF COUNSEL IS NOT A FUNDAMENTAL RIGHT, ESSENTIAL TO A FAIR TRIAL" - THE
COURT IN BETTS V. BRADY MADE AN ABRUPT BREAK WITH ITS OWN WELL
CONSIDERED PRECEDENTS.  IN RETURNING TO THESE OLD PRECEDENTS, SOUNDER
WE BELIEVE THAN THE NEW, WE BUT RESTORE CONSTITUTIONAL PRINCIPLES
ESTABLISHED TO ACHIEVE A FAIR SYSTEM OF JUSTICE.  NOT ONLY THESE
PRECEDENTS BUT ALSO REASON AND REFLECTION REQUIRE US TO RECOGNIZE THAT
IN OUR ADVERSARY SYSTEM OF CRIMINAL JUSTICE, ANY PERSON HALED INTO
COURT, WHO IS TOO POOR TO HIRE A LAWYER, CANNOT BE ASSURED A FAIR TRIAL
UNLESS COUNSEL IS PROVIDED FOR HIM.  THIS SEEMS TO US TO BE AN OBVIOUS
TRUTH.  GOVERNMENTS, BOTH STATE AND FEDERAL, QUITE PROPERLY SPEND VAST
SUMS OF MONEY TO ESTABLISH MACHINERY TO TRY DEFENDANTS ACCUSED OF
CRIME.  LAWYERS TO PROSECUTE ARE EVERYWHERE DEEMED ESSENTIAL TO PROTECT
THE PUBLIC'S INTEREST IN AN ORDERLY SOCIETY.  SIMILARLY, THERE ARE FEW
DEFENDANTS CHARGED WITH CRIME, FEW INDEED, WHO FAIL TO HIRE THE BEST
LAWYERS THEY CAN GET TO PREPARE AND PRESENT THEIR DEFENSES.  THAT
GOVERNMENT HIRES LAWYERS TO PROSECUTE AND DEFENDANTS WHO HAVE THE MONEY
HIRE LAWYERS TO DEFEND ARE THE STRONGEST INDICATIONS OF THE WIDESPREAD
BELIEF THAT LAWYERS IN CRIMINAL COURTS ARE NECESSITIES, NOT LUXURIES. 
THE RIGHT OF ONE CHARGED WITH CRIME TO COUNSEL MAY NOT BE DEEMED
FUNDAMENTAL AND ESSENTIAL TO FAIR TRIALS IN SOME COUNTRIES, BUT IT IS
IN OURS.  FROM THE VERY BEGINNING, OUR STATE AND NATIONAL CONSTITUTIONS
AND LAWS HAVE LAID GREAT EMPHASIS ON PROCEDURAL AND SUBSTANTIVE
SAFEGUARDS DESIGNED TO ASSURE FAIR TRIALS BEFORE IMPARTIAL TRIBUNALS IN
WHICH EVERY DEFENDANT STANDS EQUAL BEFORE THE LAW.  THIS NOBLE IDEAL
CANNOT BE REALIZED IF THE POOR MAN CHARGED WITH CRIME HAS TO FACE HIS
ACCUSERS WITHOUT A LAWYER TO ASSIST HIM.  A DEFENDANT'S NEED FOR A
LAWYER IS NOWHERE BETTER STATED THAN IN THE MOVING WORDS OF MR. JUSTICE
SUTHERLAND IN POWELL V. ALABAMA:    "THE RIGHT TO BE HEARD WOULD BE, IN
MANY CASES, OF LITTLE AVAIL IF IT DID NOT COMPREHEND THE RIGHT TO BE
HEARD BY COUNSEL.  EVEN THE INTELLIGENT AND EDUCATED LAYMAN HAS SMALL
AND SOMETIMES NO SKILL IN THE SCIENCE OF LAW.  IF CHARGED WITH CRIME,
HE IS INCAPABLE, GENERALLY, OF DETERMINING FOR HIMSELF WHETHER THE
INDICTMENT IS GOOD OR BAD.  HE IS UNFAMILIAR WITH THE RULES OF
EVIDENCE.  LEFT WITHOUT THE AID OF COUNSEL HE MAY BE PUT ON TRIAL
WITHOUT A PROPER CHARGE, AND CONVICTED UPON INCOMPETENT EVIDENCE, OR
EVIDENCE IRRELEVANT TO THE ISSUE OR OTHERWISE INADMISSIBLE.  HE LACKS
BOTH THE SKILL AND KNOWLEDGE ADEQUTELY TO PREPARE HIS DEFENSE, EVEN
THOUGH HE HAVE A PERFECT ONE.  HE REQUIRES THE GUIDING HAND OF COUNSEL
AT EVERY STEP IN THE PROCEEDINGS AGAINST HIM.  WITHOUT IT, THOUGH HE BE
NOT GUILTY, HE FACES THE DANGER OF CONVICTION BECAUSE HE DOES NOT KNOW
HOW TO ESTABLISH HIS INNOCENCE."  287 U.S., AT 68-69. 

THE COURT IN BETTS V. BRADY DEPARTED FROM THE SOUND WISDOM UPON WHICH
THE COURT'S HOLDING IN POWELL V. ALABAMA RESTED.  FLORIDA, SUPPORTED BY
TWO OTHER STATES, HAS ASKED THAT BETTS V. BRADY BE LEFT INTACT.  TWENTY
TWO STATES, AS FRIENDS OF THE COURT, ARGUE THAT BETTS WAS "AN
ANACHRONISM WHEN HANDED DOWN" AND THAT IT SHOULD NOW BE OVERRULED.  WE
AGREE. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE SUPREME
COURT OF FLORIDA FOR FURTHER ACTION NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

FN1  LATER IN THE PETITION FOR HABEAS CORPUS, SIGNED AND APPARENTLY
PREPARED BY PETITIONER HIMSELF, HE STATED "I, CLARENCE EARL GIDEON,
CLAIM THAT I WAS DENIED THE RIGHTS OF THE 4TH, 5TH AND 14TH AMENDMENTS
OF THE BILL OF RIGHTS." 

FN2  OF THE MANY SUCH CASES TO REACH THIS COURT, RECENT EXAMPLES ARE
CARNLEY V. COCHRAN, 369 U.S. 506 (1962); HUDSON V. NORTH CAROLINA, 363
U.S. 697 (1960); MOORE V. MICHIGAN, 355 U.S. 155 (1957).  ILLUSTIATIVE
CASES IN THE STATE COURTS ARE ARTRIP V. STATE, 136 SO. 2D 574 (CT. APP.
ALA. 1962); SHAFFER V. WARDEN, 211 MD. 635, 126 A.2D 573 (1956).  FOR
EXAMPLES OF COMMENTARY, SEE ALLEN, THE SUPREME COURT, FEDERALISM, AND
STATE SYSTEMS OF CRIMINAL JUSTICE, 8 DE PAUL L. REV. 213 (1959);
KAMISAR, THE RIGHT TO COUNSEL AND THE FOURTEENTH AMENDMENT:  A DIALOGUE
ON "THE MOST PERVASIVE RIGHT" OF AN ACCUSED, 30 U. OF CHI.  L. REV. 1
(1962); THE RIGHT TO COUNSEL, 45 MINN. L. REV. 693 (1961). 

FN3  JOHNSON V. ZERBST, 304 U.S. 458 (1938). 

FN4  E.G., GITLOW V. NEW YORK, 268 U.S. 652, 666 (1925)(SPEECH AND
PRESS); LOVELL V. CITY OF GRIFFIN, 303 U.S. 444, 450 (1938)(SPEECH AND
PRESS); STAUB V. CITY OF BAXLEY, 355 U.S. 313, 321 (1958)(SPEECH);
GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 244 (1936)(PRESS);
CANTWELL V. CONNECTICUT, 310 U.S. 296, 303 (1940)(RELIGION); DE JONGE
V. OREGON, 299 U.S. 353, 364 (1937)(ASSEMBLY); SHELTON V. TUCKER, 364
U.S. 479, 486, 488 (1960)(ASSOCIATION); LOUISIANA EX REL. GREMILLION V.
NAACP, 366 U.S. 293, 296 (1961)(ASSOCIATION); EDWARDS V. SOUTH
CAROLINA, 372 U.S. 229 (1963)(SPEECH, ASSEMBLY, PETITION FOR REDRESS OF
GRIEVANCES). 

FN5  E.G., CHICAGO, B.&Q.R. CO. V. CHICAGO, 166 U.S. 226, 235-241
(1897); SMYTH V. AMES, 169 U.S. 466, 522-526 (1898). 

FN6  E.G., WOLF V. COLORADO, 338 U.S. 25, 27-28 (1949); ELKINS V.
UNITED STATES, 364 U.S. 206, 213 (1960); MAPP V. OHIO, 367 U.S. 643,
655 (1961). 

FN7  ROBINSON V. CALIFORNIA, 370 U.S. 660, 666 (1962). 

MR. JUSTICE DOUGLAS. 

WHILE I JOIN THE OPINION OF THE COURT, A BRIEF HISTORICAL RESUME OF
THE RELATION BETWEEN THE BILL OF RIGHTS AND THE FIRST SECTION OF THE
FOURTEENTH AMENDMENT SEEMS PERTINENT.  SINCE THE ADOPTION OF THAT
AMENDMENT, TEN JUSTICES HAVE FELT THAT IT PROTECTS FROM INFRINGEMENT BY
THE STATES THE PRIVILEGES, PROTECTIONS, AND SAFEGUARDS GRANTED BY THE
BILL OF RIGHTS. 

JUSTICE FIELD, THE FIRST JUSTICE HARLAN, AND PROBABLY JUSTICE BREWER,
TOOK THAT POSITION IN O'NEIL V. VERMONT, 144 U.S. 323, 362-363, 370
371, AS DID JUSTICES BLACK, DOUGLAS, MURPHY AND RUTLEDGE IN ADAMSON V.
CALIFORNIA, 332 U.S. 46, 71-72, 124.  AND SEE POE V. ULLMAN, 367 U.S.
497, 515-522 (DISSENTING OPINION).  THAT VIEW WAS ALSO EXPRESSED BY
JUSTICES BRADLEY AND SWAYNE IN THE SLAUGHTER-HOUSE CASES, 16 WALL.  36,
118-119, 122, AND SEEMINGLY WAS ACCEPTED BY JUSTICE CLIFFORD WHEN HE
DISSENTED WITH JUSTICE FIELD IN WALKER V. SAUVINET, 92 U.S. 90, 92. 
(FN1)  UNFORTUNATELY IT HAS NEVER COMMANDED A COURT.  YET, HAPPILY, ALL
CONSTITUTIONAL QUESTIONS ARE ALWAYS OPEN.  ERIE R. CO. V. TOMPKINS, 304
U.S. 64.  AND WHAT WE DO TODAY DOES NOT FORECLOSE THE MATTER. 

MY BROTHER HARLAN IS OF THE VIEW THAT A GUARANTEE OF THE BILL OF
RIGHTS THAT IS MADE APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH AMENDMENT IS A LESSER VERSION OF THAT SAME GUARANTEE AS
APPLIED TO THE FEDERAL GOVERNMENT.  (FN2)  MR. JUSTICE JACKSON SHARED
THAT VIEW.  (FN3)  BUT THAT VIEW HAS NOT PREVAILED (FN4) AND RIGHTS
PROTECTED AGAINST STATE INVASION BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT ARE NOT WATERED-DOWN VERSIONS OF WHAT THE BILL OF
RIGHTS GUARANTEES. 

FN1  JUSTICES BRADLEY, SWAYNE AND FIELD EMPHASIZED THAT THE FIRST
EIGHT AMENDMENTS GRANTED CITIZENS OF THE UNITED STATES CERTAIN
PRIVILEGES AND IMMUNITIES THAT WERE PROTECTED FROM ABRIDGMENT BY THE
STATES BY THE FOURTEENTH AMENDMENT.  SEE SLAUGHER-HOUSE CASES, SUPRA,
AT 118-119; O'NEIL V. VERMONT, SUPRA, AT 363.  JUSTICE HARLAN AND
BREWER ACCEPTED THE SAME THEORY IN THE O'NEIL CASE (SEE ID., AT 370
371), THOUGH JUSTICE HARLAN INDICATED THAT ALL "PERSONS," NOT MERELY
"CITIZENS," WERE GIVEN THIS PROTECTION.  IBID.  IN TWINING V. NEW
JERSEY, 211 U.S. 78, 117, JUSTICE HARLAN'S POSITION WAS MADE CLEAR: 

"IN MY JUDGMENT, IMMUNITY FROM SELF-INCRIMINATION IS PROTECTED
AGAINST HOSTILE STATE ACTION, NOT ONLY BY  ...  (THE PRIVILEGES AND
IMMUNITIES CLAUSE), BUT (ALSO) BY  ...  (THE DUE PROCESS CLAUSE)." 

JUSTICE BREWER, IN JOINING THE OPINION OF THE COURT, ABANDONED THE
VIEW THAT THE ENTIRE BILL OF RIGHTS APPLIES TO THE STATES IN MAXWELL V.
DOW, 176 U.S. 581. 

FN2  SEE ROTH V. UNITED STATES, 354 U.S. 476, 501, 506; SMITH V.
CALIFORNIA, 361 U.S. 147, 169. 

FN3  BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 288.  CF. THE OPINIONS OF
JUSTICES HOLMES AND BRANDEIS IN GITLOW V. NEW YORK, 268 U.S. 652, 672,
AND WHITNEY V. CALIFORNIA, 274 U.S. 357, 372. 

FN4  THE CASES ARE COLLECTED BY MR. JUSTICE BLACK IN SPEISER V.
RANDALL, 357 U.S. 513, 530.  AND SEE, EATON V. PRICE, 364 U.S. 263, 274
276. 

MR. JUSTICE CLARK, CONCURRING IN THE RESULT. 

IN BUTE V. ILLINOIS, 333 U.S. 640 (1948), THIS COURT FOUND NO SPECIAL
CIRCUMSTANCES REQUIRING THE APPOINTMENT OF COUNSEL BUT STATED THAT "IF
THESE CHARGES HAD BEEN CAPITAL CHARGES, THE COURT WOULD HAVE BEEN
REQUIRED, BOTH BY THE STATE STATUTE AND THE DECISIONS OF THIS COURT
INTERPRETING THE FOURTEENTH AMENDMENT, TO TAKE SOME SUCH STEPS."  ID.,
AT 674.  PRIOR TO THAT CASE I FIND NO LANGUAGE IN ANY CASES IN THIS
COURT INDICATING THAT APPOINTMENT OF COUNSEL IN ALL CAPITAL CASES WAS
REQUIRED BY THE FOURTEENTH AMENDMENT.  (FN1)  AT THE NEXT TERM OF THE
COURT MR. JUSTICE REED REVEALED THAT THE COURT WAS DIVIDED AS TO
NONCAPITAL CASES BUT THAT "THE DUE PROCESS CLAUSE  ...  REQUIRES
COUNSEL FOR ALL PERSONS CHARGED WITH SERIOUS CRIMES  ...  ."  UVEGES V.
PENNSYLVANIA, 335 U.S. 437, 441 (1948).  FINALLY, IN HAMILTON V.
ALABAMA, 368 U.S. 52 (1961), WE SAID THAT "WHEN ONE PLEADS TO A CAPITAL
CHARGE WITHOUT BENEFIT OF COUNSEL, WE DO NOT STOP TO DETERMINE WHETHER
PREJUDICE RESULTED."  ID., AT 55. 

THAT THE SIXTH AMENDMENT REQUIRES APPOINTMENT OF COUNSEL IN "ALL
CRIMINAL PROSECUTIONS" IS CLEAR, BOTH FROM THE LANGUAGE OF THE
AMENDMENT AND FROM THIS COURT'S INTERPRETATION.  SEE JOHNSON V. ZERBST,
304 U.S. 458 (1938).  IT IS EQUALLY CLEAR FROM THE ABOVE CASES, ALL
DECIDED AFTER BETTS V. BRADY, 316 U.S. 455 (1942), THAT THE FOURTEENTH
AMENDMENT REQUIRES SUCH APPOINTMENT IN ALL PROSECUTIONS FOR CAPITAL
CRIMES.  THE COURT'S DECISION TODAY, THEN, DOES NO MORE THAN ERASE A
DISTINCTION WHICH HAS NO BASIS IN LOGIC AND AN INCREASINGLY ERODED
BASIS IN AUTHORITY.  IN KINSELLA V. UNITED STATES EX REL. SINGLETON,
361 U.S. 234 (1960), WE SPECIFICALLY REJECTED ANY CONSTITUTIONAL
DISTINCTION BETWEEN CAPITAL AND NONCAPITAL OFFENSES AS REGARDS
CONGRESSIONAL POWER TO PROVIDE FOR COURT-MARTIAL TRIALS OF CIVILIAN
DEPENDENTS OF ARMED FORCES PERSONNEL.  HAVING PREVIOUSLY HELD THAT
CIVILIAN DEPENDENTS COULD NOT CONSTITUTIONALLY BE DEPRIVED OF THE
PROTECTIONS OF ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS IN
CAPITAL CASES, REID V. COVERT, 354 U.S. 1 (1957), WE HELD THAT THE SAME
RESULT MUST FOLLOW IN NONCAPITAL CASES.  INDEED, OUR OPINION THERE
FORESHADOWED THE DECISION TODAY, (FN2) AS WE NOTED THAT: 

"OBVIOUSLY FOURTEENTH AMENDMENT CASES DEALING WITH STATE ACTION HAVE
NO APPLICATION HERE, BUT IF THEY DID, WE BELIEVE THAT TO DEPRIVE
CIVILIAN DEPENDENTS OF THE SAFEGUARDS OF A JURY TRIAL HERE  ...  WOULD
BE AS INVALID UNDER THOSE CASES AS IT WOULD BE IN CASES OF A CAPITAL
NATURE."  361 U.S., AT 246-247. 

I MUST CONCLUDE HERE, AS IN KINSELLA, SUPRA, THAT THE CONSTITUTION
MAKES NO DISTINCTION BETWEEN CAPITAL AND NONCAPITAL CASES.  THE
FOURTEENTH AMENDMENT REQUIRES DUE PROCESS OF LAW FOR THE DEPRIVAL OF
"LIBERTY" JUST AS FOR DEPRIVAL OF "LIFE," AND THERE CANNOT
CONSTITUTIONALLY BE A DIFFERENCE IN THE QUALITY OF THE PROCESS BASED
MERELY UPON A SUPPOSED DIFFERENCE IN THE SANCTION INVOLVED.  HOW CAN
THE FOURTEENTH AMENDMENT TOLERATE A PROCEDURE WHICH IT CONDEMNS IN
CAPITAL CASES ON THE GROUND THAT DEPRIVAL OF LIBERTY MAY BE LESS
ONEROUS THAN DEPRIVAL OF LIFE - A VALUE JUDGMENT NOT UNIVERSALLY
ACCEPTED (FN3) - OR THAT ONLY THE LATTER DEPRIVAL IS IRREVOCABLE?  I
CAN FIND NO ACCEPTABLE RATIONALIZATION FOR SUCH A RESULT, AND I
THEREFORE CONCUR IN THE JUDGMENT OF THE COURT. 

FN1  IT MIGHT, HOWEVER, BE SAID THAT THERE IS SUCH AN IMPLICATION IN
AVERY V. ALABAMA, 308 U.S. 444 (1940), A CAPITAL CASE IN WHICH COUNSEL
HAD BEEN APPOINTED BUT IN WHICH THE PETITIONER CLAIMED A DENIAL OF
"EFFECTIVE" ASSISTANCE.  THE COURT IN AFFIRMING NOTED THAT "HAD
PETITIONER BEEN DENIED ANY REPRESENTATION OF COUNSEL AT ALL, SUCH A
CLEAR VIOLATION OF THE FOURTEENTH AMENDMENT'S GUARANTEE OF ASSISTANCE
OF COUNSEL WOULD HAVE REQUIRED REVERSAL OF HIS CONVICTION."  ID., AT
445.  NO "SPECIAL CIRCUMSTANCES" WERE RECITED BY THE COURT, BUT IN
CITING POWELL V. ALABAMA, 287 U.S. 45 (1932), AS AUTHORITY FOR ITS
DICTUM IT APPEARS THAT THE COURT DID NOT RELY SOLELY ON THE CAPITAL
NATURE OF THE OFFENSE. 

FN2  PORTENTS OF TODAY'S DECISION MAY BE FOUND AS WELL IN GRIFFIN V.
ILLINOIS, 351 U.S. 12 (1956), AND FERGUSON V. GEORGIA, 365 U.S. 570
(1961).  IN GRIFFIN, A NONCAPITAL CASE, WE HELD THAT THE PETITIONER'S
CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE STATE'S PROCEDURE, WHICH
PROVIDED FREE TRANSCRIPTS FOR INDIGENT DEFENDANTS ONLY IN CAPITAL
CASES.  IN FERGUSON WE STRUCK DOWN A STATE PRACTICE DENYING THE
APPELLANT THE EFFECTIVE ASSISTANCE OF COUNSEL, CAUTIONING THAT "OUR
DECISION DOES NOT TURN ON THE FACTS THAT THE APPELLANT WAS TRIED FOR A
CAPITAL OFFENSE AND WAS REPRESENTED BY EMPLOYED COUNSEL.  THE COMMAND
OF THE FOURTEENTH AMENDMENT ALSO APPLIES IN THE CASE OF AN ACCUSED
TRIED FOR A NONCAPITAL OFFENSE, OR REPRESENTED BY APPOINTED COUNSEL." 
365 U.S., AT 596. 

FN3  SEE, E.G., BARZUM, IN FAVOR OF CAPITAL PUNISHMENT, 31 AMERICAN
SCHOLAR 181, 188-189 (1962). 

MR. JUSTICE HARLAN, CONCURRING. 

I AGREE THAT BETTS V. BRADY SHOULD BE OVERRULED, BUT CONSIDER IT
ENTITLED TO A MORE RESPECTFUL BURIAL THAN HAS BEEN ACCORDED, AT LEAST
ON THE PART OF THOSE OF US WHO WERE NOT ON THE COURT WHEN THAT CASE WAS
DECIDED. 

I CANNOT SUBSCRIBE TO THE VIEW THAT BETTS V. BRADY RESPRESENTED "AN
ABRUPT BREAK WITH ITS OWN WELL-CONSIDERED PRECEDENTS."  ANTE, P. 344. 
IN 1932, IN POWELL V. ALABAMA, 287 U.S. 45, A CAPITAL CASE, THIS COURT
DECLARED THAT UNDER THE PARTICULAR FACTS THERE PRESENTED - "THE
IGNORANCE AND ILLITERACY OF THE DEFENDANTS, THEIR YOUTH, THE
CIRCUMSTANCES OF PUBLIC HOSTILITY  ...  AND ABOVE ALL THAT THEY STOOD
IN DEADLY PERIL OF THEIR LIVES" (287 U.S., AT 71) - THE STATE COURT HAD
A DUTY TO ASSIGN COUNSEL FOR THE TRIAL AS A NECESSARY REQUISITE OF DUE
PROCESS OF LAW.  IT IS EVIDENT THAT THESE LIMITING FACTS WERE NOT ADDED
TO THE OPINION AS AN AFTERTHOUGHT; THEY WERE REPEATEDLY EMPHASIZED, SEE
287 U.S., AT 52, 57-58, 71, AND WERE CLEARLY REGARDED AS IMPORTANT TO
THE RESULT. 

THUS WHEN THIS COURT, A DECADE LATER, DECIDED BETTS V. BRADY, IT DID
NO MORE THAN TO ADMIT OF THE POSSIBLE EXISTENCE OF SPECIAL
CIRCUMSTANCES IN NONCAPITAL AS WELL AS CAPITAL TRIALS, WHILE AT THE
SAME TIME INSISTING THAT SUCH CIRCUMSTANCES BE SHOWN IN ORDER TO
ESTABLISH A DENIAL OF DUE PROCESS.  THE RIGHT TO APPOINTED COUNSEL HAD
BEEN RECOGNIZED AS BEING CONSIDERABLY BROADER IN FEDERAL PROSECUTIONS,
SEE JOHNSON V. ZERBST, 304 U.S. 458, BUT TO HAVE IMPOSED THESE
REQUIREMENTS ON THE STATES WOULD INDEED HAVE BEEN "AN ABRUPT BREAK"
WITH THE ALMOST IMMEDIATE PAST.  THE DECLARATION THAT THE RIGHT TO
APPOINTED COUNSEL IN STATE PROSECUTIONS, AS ESTABLISHED IN POWELL V.
ALABAMA, WAS NOT LIMITED TO CAPITAL CASES WAS IN TRUTH NOT A DEPARTURE
FROM, BUT AN EXTENSION OF, EXISTING PRECEDENT.    THE PRINCIPLES
DECLARED IN POWELL AND IN BETTS, HOWEVER, HAVE HAD A TROUBLED JOURNEY
THROUGHOUT THE YEARS THAT HAVE FOLLOWED FIRST THE ONE CASE AND THEN THE
OTHER.  EVEN BY THE TIME OF THE BETTS DECISION, DICTUM IN AT LEAST ONE
OF THE COURT'S OPINIONS HAD INDICATED THAT THERE WAS AN ABSOLUTE RIGHT
TO THE SERVICES OF COUNSEL IN THE TRIAL OF STATE CAPITAL CASES.  (FN1)
SUCH DICTA CONTINUED TO APPEAR IN SUBSEQUENT DECISIONS, (FN2) AND ANY
LINGERING DOUBTS WERE FINALLY ELIMINATED BY THE HOLDING OF HAMILTON V.
ALABAMA, 368 U.S. 52. 

IN NONCAPITAL CASES, THE "SPECIAL CIRCUMSTANCES" RULE HAS CONTINUED
TO EXIST IN FORM WHILE ITS SUBSTANCE HAS BEEN SUBSTANTIALLY AND
STEADILY ERODED.  IN THE FIRST DECADE AFTER BETTS, THERE WERE CASES IN
WHICH THE COURT FOUND SPECIAL CIRCUMSTANCES TO BE LACKING, BUT USUALLY
BY A SHARPLY DIVIDED VOTE.  (FN3)  HOWEVER, NO SUCH DECISION HAS BEEN
CITED TO US, AND I HAVE FOUND NONE, AFTER QUICKSALL V. MICHIGAN, 339
U.S. 660, DECIDED IN 1950.  AT THE SAME TIME, THERE HAVE BEEN NOT A FEW
CASES IN WHICH SPECIAL CIRCUMSTANCES WERE FOUND IN LITTLE OR NOTHING
MORE THAN THE "COMPLEXITY" OF THE LEGAL QUESTIONS PRESENTED, ALTHOUGH
THOSE QUESTIONS WERE OFTEN OF ONLY ROUTINE DIFFICULTY.  (FN4)  THE
COURT HAS COME TO RECOGNIZE, IN OTHER WORDS, THAT THE MERE EXISTENCE OF
A SERIOUS CRIMINAL CHARGE CONSTITUTED IN ITSELF SPECIAL CIRCUMSTANCES
REQUIRING THE SERVICES OF COUNSEL AT TRIAL.  IN TRUTH THE BETTS V.
BRADY RULE IS NO LONGER A REALITY. 

THIS EVOLUTION, HOWEVER, APPEARS NOT TO HAVE BEEN FULLY RECOGNIZED BY
MANY STATE COURTS, IN THIS INSTANCE CHARGED WITH THE FRONT-LINE
RESPONSIBILITY FOR THE ENFORCEMENT OF CONSTITUTIONAL RIGHTS.  (FN5)  TO
CONTINUE A RULE WHICH IS HONORED BY THIS COURT ONLY WITH LIP SERVICE IS
NOT A HEALTHY THING AND IN THE LONG RUN WILL DO DISSERVICE TO THE
FEDERAL SYSTEM. 

THE SPECIAL CIRCUMSTANCES RULE HAS BEEN FORMALLY ABANDONED IN CAPITAL
CASES, AND THE TIME HAS NOW COME WHEN IT SHOULD BE SIMILARLY ABANDONED
IN NONCAPITAL CASES, AT LEAST AS TO OFFENSES WHICH, AS THE ONE INVOLVED
HERE, CARRY THE POSSIBILITY OF A SUBSTANTIAL PRISON SENTENCE.  (WHETHER
THE RULE SHOULD EXTEND TO ALL CRIMINAL CASES NEED NOT NOW BE DECIDED.) 
THIS INDEED DOES NO MORE THAN TO MAKE EXPLICIT SOMETHING THAT HAS LONG
SINCE BEEN FORESHADOWED IN OUR DECISIONS. 

IN AGREEING WITH THE COURT THAT THE RIGHT TO COUNSEL IN A CASE SUCH
AS THIS SHOULD NOW BE EXPRESSLY RECOGNIZED AS A FUNDAMENTAL RIGHT
EMBRACED IN THE FOURTEENTH AMENDMENT, I WISH TO MAKE A FURTHER
OBSERVATION.  WHEN WE HOLD A RIGHT OR IMMUNITY, VALID AGAINST THE
FEDERAL GOVERNMENT, TO BE "IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY"
(FN6) AND THUS VALID AGAINST THE STATES, I DO NOT READ OUR PAST
DECISIONS TO SUGGEST THAT BY SO HOLDING, WE AUTOMATICALLY CARRY OVER AN
ENTIRE BODY OF FEDERAL LAW AND APPLY IT IN FULL SWEEP TO THE STATES. 
ANY SUCH CONCEPT WOULD DISREGARD THE FREQUENTLY WIDE DISPARITY BETWEEN
THE LEGITIMATE INTERESTS OF THE STATES AND OF THE FEDERAL GOVERNMENT,
THE DIVERGENT PROBLEMS THAT THEY FACE, AND THE SIGNIFICANTLY DIFFERENT
CONSEQUENCES OF THEIR ACTIONS.  CF. ROTH V. UNITED STATES, 354 U.S.
476, 496-508 (SEPARATE OPINION OF THIS WRITER).  IN WHAT IS DONE TODAY
I DO NOT UNDERSTAND THE COURT TO DEPART FROM THE PRINCIPLES LAID DOWN
IN PALKO V. CONNECTICUT, 302 U.S. 319, OR TO EMBRACE THE CONCEPT THAT
THE FOURTEENTH AMENDMENT "INCORPORATES" THE SIXTH AMENDMENT AS SUCH. 

ON THESE PREMISES I JOIN IN THE JUDGMENT OF THE COURT. 

FN1  AVERY V. ALABAMA, 308 U.S. 444, 445. 

FN2  E.G., BUTE V. ILLINOIS, 333 U.S. 640, 674; UVEGES V.
PENNSYLVANIA, 335 U.S. 437, 441. 

FN3  E.G., FOSTER V. ILLINOIS, 332 U.S. 134; BUTE V. ILLINOIS, 333
U.S. 640; GRYGER V. BURKE, 334 U.S. 728. 

FN4  E.G., WILLIAMS V. KAISER, 323 U.S. 471; HUDSON V. NORTH
CAROLINA, 363 U.S. 697; CHEWNING V. CUNNINGHAM, 368 U.S. 443. 

FN5  SEE, E.G., COMMONWEALTH EX REL. SIMON V. MARONEY, 405 PA. 562,
176 A.2D 94 (1961); SHAFFER V. WARDEN, 211 MD. 635, 126 A.2D 573
(1956); HENDERSON V. BANNAN, 256 F.2D 363 (C.A. 6TH CIR. 1958). 

FN6  PALKO V. CONNECTICUT, 302 U.S. 319, 325. 
..END :





















DOUGLAS V. CALIFORNIA 372 U.S. 353 


NO. 34.  ARGUED APRIL 17, 1962.  - RESTORED TO THE CALENDAR FOR
REARGUMENT JUNE 25, 1962.  - REARGUED JANUARY 16, 1963.  - DECIDED
MARCH 18, 1963.  - 187 CAL. APP. 2D 802, 10 CAL. RPTR.  188, JUDGMENT
VACATED AND CAUSE REMANDED. 


IN A CALIFORNIA STATE COURT, PETITIONERS WERE TRIED JOINTLY, CONVICTED
OF 13 FELONIES AND SENTENCED TO IMPRISONMENT.  EXERCISING THEIR ONLY
RIGHT TO APPEAL AS OF RIGHT, THEY APPEALED TO AN INTERMEDIATE COURT OF
APPEALS, AND, BEING INDIGENT, APPLIED TO IT FOR APPOINTMENT OF COUNSEL
TO ASSIST THEM ON APPEAL.  IN ACCORDANCE WITH A STATE RULE OF CRIMINAL
PROCEDURE, THAT COURT MADE AN EX PARTE EXAMINATION OF THE RECORD,
DETERMINED THAT APPOINTMENT OF COUNSEL FOR PETITIONERS WOULD NOT BE "OF
ADVANTAGE TO THE DEFENDANT OR HELPFUL TO THE APPELLATE COURT" AND
DENIED APPOINTMENT OF COUNSEL.   THEIR APPEAL WAS HEARD WITHOUT
ASSISTANCE OF COUNSEL AND THEIR CONVICTIONS WERE AFFIRMED.  THE STATE
SUPREME COURT DENIED A DISCRETIONARY REVIEW.  HELD:  WHERE THE MERITS
OF THE ONE AND ONLY APPEAL AN INDIGENT HAS AS OF RIGHT ARE DECIDED
WITHOUT BENEFIT OF COUNSEL IN A STATE CRIMINAL CASE, THERE HAS BEEN A
DISCRIMINATION BETWEEN THE RICH AND THE POOR WHICH VIOLATES THE
FOURTEENTH AMENDMENT.  PP. 353-358. 

DOUGLAS ET AL. V. CALIFORNIA. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, BENNIE WILL MEYES AND WILLIAM DOUGLAS, WERE JOINTLY
TRIED AND CONVICTED IN A CALIFORNIA COURT ON AN INFORMATION CHARGING
THEM WITH 13 FELONIES.  A SINGLE PUBLIC DEFENDER WAS APPOINTED TO
REPRESENT THEM.  AT THE COMMENCEMENT OF THE TRIAL, THE DEFENDER MOVED
FOR A CONTINUANCE, STATING THAT THE CASE WAS VERY COMPLICATED, THAT HE
WAS NOT AS PREPARED AS HE FELT HE SHOULD BE BECAUSE HE WAS HANDLING A
DIFFERENT DEFENSE EVERY DAY, AND THAT THERE WAS A CONFLICT OF INTEREST
BETWEEN THE PETITIONERS REQUIRING THE APPOINTMENT OF A SEPARATE COUNSEL
FOR EACH OF THEM.  THIS MOTION WAS DENIED.  THEREAFTER, PETITIONERS
DISMISSED THE DEFENDER, CLAIMING HE WAS UNPREPARED, AND AGAIN RENEWED
MOTIONS FOR SEPARATE COUNSEL AND FOR A CONTINUANCE.  THESE MOTIONS ALSO
WERE DENIED, AND PETITIONERS WERE ULTIMATELY CONVICTED BY A JURY OF ALL
13 FELONIES, WHICH INCLUDED ROBBERY, ASSAULT WITH A DEADLY WEAPON, AND
ASSAULT WITH INTENT TO COMMIT MURDER.  BOTH WERE GIVEN PRISON TERMS. 
BOTH APPEALED AS OF RIGHT TO THE CALIFORNIA DISTRICT COURT OF APPEAL. 
THAT COURT AFFIRMED THEIR CONVICTIONS.  187 CAL. APP. 2D 802, 10 CAL.
RPTR.  188.  BOTH MEYES AND DOUGLAS THEN PETITIONED FOR FURTHER
DISCRETIONARY REVIEW IN THE CALIFORNIA SUPREME COURT, BUT THEIR
PETITIONS WERE DENIED WITHOUT A HEARING.  (FN1)  187 CAL. APP. 2D, AT
813, 10 CAL. RPTR., AT 195.  WE GRANTED CERTIORARI.  368 U.S. 815. 

ALTHOUGH SEVERAL QUESTIONS ARE PRESENTED IN THE PETITION FOR
CERTIORARI, WE ADDRESS OURSELVES TO ONLY ONE OF THEM.  THE RECORD SHOWS
THAT PETITIONERS REQUESTED, AND WERE DENIED, THE ASSISTANCE OF COUNSEL
ON APPEAL, EVEN THOUGH IT PLAINLY APPEARED THEY WERE INDIGENTS.  IN
DENYING PETITIONERS' REQUESTS, THE CALIFORNIA DISTRICT COURT OF APPEAL
STATED THAT IT HAD "GONE THROUGH" THE RECORD AND HAD COME TO THE
CONCLUSION THAT "NO GOOD WHATEVER COULD BE SERVED BY APPOINTMENT OF
COUNSEL."  187 CAL. APP. 2D 802, 812, 10 CAL. RPTR.  188, 195.  THE
DISTRICT COURT OF APPEAL WAS ACTING IN ACCORDANCE WITH A CALIFORNIA
RULE OF CRIMINAL PROCEDURE WHICH PROVIDES THAT STATE APPELLATE COURTS,
UPON THE REQUEST OF AN INDIGENT FOR COUNSEL, MAY MAKE "AN INDEPENDENT
INVESTIGATION OF THE RECORD AND DETERMINE WHETHER IT WOULD BE OF
ADVANTAGE TO THE DEFENDANT OR HELPFUL TO THE APPELLATE COURT TO HAVE
COUNSEL APPOINTED  ...  .  AFTER SUCH INVESTIGATION, APPELLATE COURTS
SHOULD APPOINT COUNSEL IF IN THEIR OPINION IT WOULD BE HELPFUL TO THE
DEFENDANT OR THE COURT, AND SHOULD DENY THE APPOINTMENT OF COUNSEL ONLY
IF IN THEIR JUDGMENT SUCH APPOINTMENT WOULD BE OF NO VALUE TO EITHER
THE DEFENDANT OR THE COURT."  PEOPLE V. HYDE, 51 CAL. 2D 152, 154, 331
P.2D 42, 43. 

WE AGREE, HOWEVER, WITH JUSTICE TRAYNOR OF THE CALIFORNIA SUPREME
COURT, WHO SAID THAT THE "DENIAL OF COUNSEL ON APPEAL TO AN INDIGENT
WOULD SEEM TO BE A DISCRIMINATION AT LEAST AS INVIDIOUS AS THAT
CONDEMNED IN GRIFFIN V. ILLINOIS  ...  ."  PEOPLE V. BROWN, 55 CAL. 2D
64, 71, 357 P.2D 1072, 1076 (CONCURRING OPINION).  IN GRIFFIN V.
ILLINOIS 351 U.S. 12, WE HELD THAT A STATE MAY NOT GRANT APPELLATE
REVIEW IN SUCH A WAY AS TO DISCRIMINATE AGAINST SOME CONVICTED
DEFENDANTS ON ACCOUNT OF THEIR POVERTY.  THERE, AS IN DRAPER V.
WASHINGTON, POST, P. 487, THE RIGHT TO A FREE TRANSCRIPT ON APPEAL WAS
IN ISSUE.  HERE THE ISSUE IS WHETHER OR NOT AN INDIGENT SHALL BE DENIED
THE ASSISTANCE OF COUNSEL ON APPEAL.  IN EITHER CASE THE EVIL IS THE
SAME:  DISCRIMINATION AGAINST THE INDIGENT.  FOR THERE CAN BE NO EQUAL
JUSTICE WHERE THE KIND OF AN APPEAL A MAN ENJOYS "DEPENDS ON THE AMOUNT
OF MONEY HE HAS."  GRIFFIN V. ILLINOIS, SUPRA, AT P. 19. 

IN SPITE OF CALIFORNIA'S FORWARD TREATMENT OF INDIGENTS, UNDER ITS
PRESENT PRACTICE THE TYPE OF AN APPEAL A PERSON IS AFFORDED IN THE
DISTRICT COURT OF APPEALS HINGES UPON WHETHER OR NOT HE CAN PAY FOR THE
ASSISTANCE OF COUNSEL.  IF HE CAN THE APPELLATE COURT PASSES ON THE
MERITS OF HIS CASE ONLY AFTER HAVING THE FULL BENEFIT OF WRITTEN BRIEFS
AND ORAL ARGUMENT BY COUNSEL.  IF HE CANNOT THE APPELLATE COURT IS
FORCED TO PREJUDGE THE MERITS BEFORE IT CAN EVEN DETERMINE WHETHER
COUNSEL SHOULD BE PROVIDED.  AT THIS STAGE IN THE PROCEEDINGS ONLY THE
BARREN RECORD SPEAKS FOR THE INDIGENT, AND, UNLESS THE PRINTED PAGES
SHOW THAT AN INJUSTICE HAS BEEN COMMITTED, HE IS FORCED TO GO WITHOUT A
CHAMPION ON APPEAL.  ANY REAL CHANCE HE MAY HAVE HAD OF SHOWING THAT
HIS APPEAL HAS HIDDEN MERIT IS DEPRIVED HIM WHEN THE COURT DECIDES ON
AN EX PARTE EXAMINATION OF THE RECORD THAT THE ASSISTANCE OF COUNSEL IS
NOT REQUIRED. 

WE ARE NOT HERE CONCERNED WITH PROBLEMS THAT MIGHT ARISE FROM THE
DENIAL OF COUNSEL FOR THE PREPARATION OF A PETITION FOR DISCRETIONARY
OR MANDATORY REVIEW BEYOND THE STAGE IN THE APPELLATE PROCESS AT WHICH
THE CLAIMS HAVE ONCE BEEN PRESENTED BY A LAWYER AND PASSED UPON BY AN
APPELLATE COURT.  WE ARE DEALING ONLY WITH THE FIRST APPEAL, GRANTED AS
A MATTER OF RIGHT TO RICH AND POOR ALIKE (CAL. PENAL CODE SEC. 1235,
1237), FROM A CRIMINAL CONVICTION.  WE NEED NOT NOW DECIDE WHETHER
CALIFORNIA WOULD HAVE TO PROVIDE COUNSEL FOR AN INDIGENT SEEKING A
DISCRETIONARY HEARING FROM THE CALIFORNIA SUPREME COURT AFTER THE
DISTRICT COURT OF APPEAL HAD SUSTAINED HIS CONVICTION (SEE CAL. CONST.,
ART. VI, SEC. 4C; CAL. RULES ON APPEAL, RULES 28, 29), OR WHETHER
COUNSEL MUST BE APPOINTED FOR AN INDIGENT SEEKING REVIEW OF AN
APPELLATE AFFIRMANCE OF HIS CONVICTION IN THIS COURT BY APPEAL AS OF
RIGHT OR BY PETITION FOR A WRIT OF CERTIORARI WHICH LIES WITHIN THE
COURT'S DISCRETION.  BUT IT IS APPROPRIATE TO OBSERVE THAT A STATE CAN,
CONSISTENTLY WITH THE FOURTEENTH AMENDMENT, PROVIDE FOR DIFFERENCES SO
LONG AS THE RESULT DOES NOT AMOUNT TO A DENIAL OF DUE PROCESS OR AN
"INVIDIOUS DISCRIMINATION."  WILLIAMSON V. LEE OPTICAL CO., 348 U.S.
483, 489; GRIFFIN V. ILLINOIS, SUPRA, P. 18.  ABSOLUTE EQUALITY IS NOT
REQUIRED; LINES CAN BE AND ARE DRAWN AND WE OFTEN SUSTAIN THEM.  SEE
TIGNER V. TEXAS, 310 U.S. 141; GOESAERT V. CLEARY, 335 U.S. 464.  BUT
WHERE THE MERITS OF THE ONE AND ONLY APPEAL AN INDIGENT HAS AS OF RIGHT
ARE DECIDED WITHOUT BENEFIT OF COUNSEL, WE THINK AN UNCONSTITUTIONAL
LINE HAS BEEN DRAWN BETWEEN RICH AND POOR. 

WHEN AN INDIGENT IS FORCED TO RUN THIS GANTLET OF A PRELIMINARY
SHOWING OF MERIT, THE RIGHT TO APPEAL DOES NOT COMPORT WITH FAIR
PROCEDURE.  IN THE FEDERAL COURTS, ON THE OTHER HAND, AN INDIGENT MUST
BE AFFORDED COUNSEL ON APPEAL WHENEVER HE CHALLENGES A CERTIFICATION
THAT THE APPEAL IS NOT TAKEN IN GOOD FAITH.  JOHNSON V. UNITED STATES,
352 U.S. 565.  THE FEDERAL COURTS MUST HONOR HIS REQUEST FOR COUNSEL
REGARDLESS OF WHAT THEY THINK THE MERITS OF THE CASE MAY BE; AND
"REPRESENTATION IN THE ROLE OF AN ADVOCATE IS REQUIRED."  ELLIS V.
UNITED STATES, 356 U.S. 674, 675.  (FN2)  IN CALIFORNIA, HOWEVER, ONCE
THE COURT HAS "GONE THROUGH" THE RECORD AND DENIED COUNSEL, THE
INDIGENT HAS NO RECOURSE BUT TO PROSECUTE HIS APPEAL ON HIS OWN, AS
BEST HE CAN, NO MATTER HOW MERITORIOUS HIS CASE MAY TURN OUT TO BE.
THE PRESENT CASE, WHERE COUNSEL WAS DENIED PETITIONERS ON APPEAL, SHOWS
THAT THE DISCRIMINATION IS NOT BETWEEN "POSSIBLE GOOD AND OBVIOUSLY BAD
CASES," BUT BETWEEN CASES WHERE THE RICH MAN CAN REQUIRE THE COURT TO
LISTEN TO ARGUMENT OF COUNSEL BEFORE DECIDING ON THE MERITS, BUT A POOR
MAN CANNOT.  THERE IS LACKING THAT EQUALITY DEMANDED BY THE FOURTEENTH
AMENDMENT WHERE THE RICH MAN, WHO APPEALS AS OF RIGHT, ENJOYS THE
BENEFIT OF COUNSEL'S EXAMINATION INTO THE RECORD, RESEARCH OF THE LAW,
AND MARSHALLING OF ARGUMENTS ON HIS BEHALF, WHILE THE INDIGENT, ALREADY
BURDENED BY A PRELIMINARY DETERMINATION THAT HIS CASE IS WITHOUT MERIT,
IS FORCED TO SHIFT FOR HIMSELF.  THE INDIGENT, WHERE THE RECORD IS
UNCLEAR OR THE ERRORS ARE HIDDEN, HAS ONLY THE RIGHT TO A MEANINGLESS
RITUAL, WHILE THE RICH MAN HAS A MEANINGFUL APPEAL. 

WE VACATE THE JUDGMENT OF THE DISTRICT COURT OF APPEAL AND REMAND THE
CASE TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  WHILE THE NOTATION OF A DENIAL OF HEARING BY THE CALIFORNIA
SUPREME COURT INDICATES THAT ONLY MEYES PETITIONED THAT COURT FOR A
HEARING, AND IS SILENT AS TO DOUGLAS' ATTEMPTS AT FURTHER REVIEW, THE
RECORD SHOWS THAT THE PETITION FOR REVIEW WAS EXPRESSLY FILED ON BEHALF
OF DOUGLAS AS WELL.  BOTH MEYES AND DOUGLAS, THEREFORE, HAVE EXHAUSTED
THEIR STATE REMEDIES AND BOTH CASES ARE PROPERLY BEFORE US.  28 U.S.C.
SEC. 1257(3). 

FN2  "WHEN SOCIETY ACTS TO DEPRIVE ONE OF ITS MEMBERS OF HIS LIFE,
LIBERTY OR PROPERTY, IT TAKES ITS MOST AWESOME STEPS.  NO GENERAL
RESPECT FOR, NOR ADHERENCE TO, THE LAW AS A WHOLE CAN WELL BE EXPECTED
WITHOUT JUDICIAL RECOGNITION OF THE PARAMOUNT NEED FOR PROMPT,
EMINENTLY FAIR AND SOBER CRIMINAL LAW PROCEDURES.  THE METHODS WE
EMPLOY IN THE ENFORCEMENT OF OUR CRIMINAL LAW HAVE APTLY BEEN CALLED
THE MEASURES BY WHICH THE QUALITY OF OUR CIVILIZATION MAY BE JUDGED." 
COPPEDGE V. UNITED STATES, 369 U.S. 438, 449. 

MR. JUSTICE CLARK, DISSENTING. 

I ADHERE TO MY VOTE IN GRIFFIN V. ILLINOIS, 351 U.S. 12 (1956), BUT,
AS I HAVE ALWAYS UNDERSTOOD THAT CASE, IT DOES NOT CONTROL HERE.  IT
HAD TO DO WITH THE STATE'S OBLIGATION TO FURNISH A RECORD TO AN
INDIGENT ON APPEAL.  THERE WE TOOK PAINS TO POINT OUT THAT THE STATE
WAS FREE TO "FIND OTHER MEANS OF AFFORDING ADEQUATE AND EFFECTIVE
APPELLATE REVIEW TO INDIGENT DEFENDANTS."  ID., AT 20.  HERE CALIFORNIA
HAS DONE JUST THAT IN ITS PROCEDURE FOR FURNISHING ATTORNEYS FOR
INDIGENTS ON APPEAL.  WE ALL KNOW THAT THE OVERWHELMING PERCENTAGE OF
IN FORMA PAUPERIS APPEALS ARE FRIVOLOUS.  STATISTICS OF THIS COURT SHOW
THAT OVER 96% OF THE PETITIONS FILED HERE ARE OF THIS VARIETY.  (FN1)
CALIFORNIA, IN THE LIGHT OF A LIKE EXPERIENCE, HAS PROVIDED THAT UPON
THE FILING OF AN APPLICATION FOR THE APPOINTMENT OF COUNSEL THE
DISTRICT COURT OF APPEAL SHALL MAKE "AN INDEPENDENT INVESTIGATION OF
THE RECORD AND DETERMINE WHETHER IT WOULD BE OF ADVANTAGE TO THE
DEFENDANT OR HELPFUL TO THE APPELLATE COURT TO HAVE COUNSEL
APPOINTED."  PEOPLE V. HYDE, 51 CAL. 2D 152, 154, 331 P.2D 42, 43
(1958).  CALIFORNIA'S COURTS DID THAT HERE AND AFTER EXAMINING THE
RECORD CERTIFIED THAT SUCH AN APPOINTMENT WOULD BE NEITHER ADVANTAGEOUS
TO THE PETITIONERS NOR HELPFUL TO THE COURT.  IT, THEREFORE, REFUSED TO
GO THROUGH THE USELESS GESTURE OF APPOINTING AN ATTORNEY.  IN MY VIEW
NEITHER THE EQUAL PROTECTION CLAUSE NOR THE DUE PROCESS CLAUSE REQUIRES
MORE.  I CANNOT UNDERSTAND WHY THE COURT SAYS THAT THIS PROCEDURE
AFFORDED PETITIONERS "A MEANINGLESS RITUAL."  TO APPOINT AN ATTORNEY
WOULD NOT ONLY HAVE BEEN UTTER EXTRAVAGANCE AND A WASTE OF THE STATE'S
FUNDS BUT AS SURELY "MEANINGLESS" TO PETITIONERS. 

WITH THIS NEW FETISH FOR INDIGENCY THE COURT PILES AN INTOLERABLE
BURDEN ON THE STATE'S JUDICIAL MACHINERY.  INDEED, IF THE COURT IS
CORRECT IT MAY BE THAT WE SHOULD FIRST CLEAN UP OUR OWN HOUSE.  WE HAVE
AFFORDED INDIGENT LITIGANTS MUCH LESS PROTECTION THAN HAS CALIFORNIA. 
LAST TERM WE RECEIVED OVER 1,200 IN FORMA PAUPERIS APPLICATIONS IN NONE
OF WHICH HAD WE APPOINTED ATTORNEYS OR REQUIRED A RECORD.  SOME WERE
APPEALS OF RIGHT.  STILL WE DENIED THE PETITIONS OR DISMISSED THE
APPEALS ON THE MOVING PAPERS ALONE.  AT THE SAME TIME WE HAD HUNDREDS
OF PAID CASES IN WHICH WE PERMITTED PETITIONS OR APPEALS TO BE FILED
WITH NOT ONLY RECORDS BUT BRIEFS BY COUNSEL, AFTER WHICH THEY WERE
DISPOSED OF IN DUE COURSE.  ON THE OTHER HAND, CALIFORNIA FURNISHES THE
INDIGENT A COMPLETE RECORD AND IF COUNSEL IS REQUESTED REQUIRES ITS
APPELLATE COURTS EITHER TO (1) APPOINT COUNSEL OR (2) MAKE AN
INDEPENDENT INVESTIGATION OF THAT RECORD AND DETERMINE WHETHER IT WOULD
BE OF ADVANTAGE TO THE DEFENDANT OR HELPFUL TO THE COURT TO HAVE
COUNSEL APPOINTED.  UNLIKE LANE V. BROWN, DECIDED TODAY, POST, P. 477,
DECISION IN THESE MATTERS IS NOT PLACED IN THE UNREVIEWABLE DISCRETION
OF THE PUBLIC DEFENDER OR APPOINTED COUNSEL BUT IS MADE BY THE
APPELLATE COURT ITSELF.  (FN2) 

CALIFORNIA'S CONCERN FOR THE RIGHTS OF INDIGENTS IS CLEARLY REVEALED
IN PEOPLE V. HYDE, SUPRA. THERE, ALTHOUGH THE PUBLIC DEFENDER HAD NOT
UNDERTAKEN THE PROSECUTION OF THE APPEAL, THE DISTRICT COURT OF APPEAL
NEVERTHELESS REFERRED THE APPLICATION FOR COUNSEL AND THE RECORD TO THE
LOS ANGELES BAR ASSOCIATION.  ONE OF ITS MEMBERS REVIEWED THESE PAPERS,
AFTER WHICH HE CERTIFIED THAT NO MERITORIOUS GROUND FOR APPEAL WAS
DISCLOSED.  DESPITE THIS THE CALIFORNIA DISTRICT COURT OF APPEAL MADE
ITS OWN INDEPENDENT EXAMINATION OF THE RECORD. 

THERE IS AN OLD ADAGE WHICH MY GOOD MOTHER USED TO QUOTE TO ME, I.E.,
"PEOPLE WHO LIVE IN GLASS HOUSES HAD BEST NOT THROW STONES."  I
DISSENT. 

FN1  STATISTICS FROM THE OFFICE OF THE CLERK OF THIS COURT REVEAL
THAT IN THE 1961 TERM ONLY 38 OF 1,093 IN FORMA PAUPERIS PETITIONS FOR
CERTIORARI WERE GRANTED (3.4%).  OF 44 IN FORMA PAUPERIS APPEALS, ALL
BUT ONE WERE SUMMARILY DISMISSED (2.3%).    FN2  THE CRUCIAL QUESTION
HERE IS, OF COURSE, THE EFFECTIVENESS OF THE APPELLATE REVIEW WHICH WAS
UNQUESTIONABLY PROVIDED.  IN LANE V. BROWN, POST, P. 477, THE
UNREVIEWABLE DECISION OF THE PUBLIC DEFENDER PRECLUDED ANY APPELLATE
REVIEW UNDER INDIANA LAW.  AS TO THE FAIRNESS AND EFFECTIVENESS OF THE
APPELLATE REVIEW HERE AS COMPARED WITH GRIFFIN V. ILLINOIS, 351 U.S. 12
(1956), THE STATE CONCEDED THE NECESSITY OF A TRANSCRIPT FOR ADEQUATE
REVIEW OF THE ALLEGED TRIAL ERRORS IN THAT CASE.   ID., AT 16.  COMPARE
THE STATEMENT OF THE DISTRICT COURT OF APPEAL IN AFFIRMING HERE:
"FURTHER, THE BRIEFS FILED BY MEYES (WHICH DOUGLAS ADOPTED) CONFORM TO
THE RULES IN ALL RESPECTS, ARE WELL WRITTEN, PRESENT ALL POSSIBLE
POINTS CLEARLY AND ABLY WITH ABUNDANT CITATION OF PERTINENT
AUTHORITIES, AND WERE NO DOUBT PREPARED BY ONE WELL VERSED IN CRIMINAL
LAW AND PROCEDURE AND IN BRIEF WRITING.  THERE WAS NO PREJUDICIAL ERROR
IN NOT APPOINTING COUNSEL FOR DEFENDANTS ON THE APPEAL."  187 CAL. APP.
2D 802, 812, 10 CAL. RPTR.  188, 195. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

IN HOLDING THAT AN INDIGENT HAS AN ABSOLUTE RIGHT TO APPOINTED
COUNSEL ON APPEAL OF A STATE CRIMINAL CONVICTION, THE COURT APPEARS TO
RELY BOTH ON THE EQUAL PROTECTION CLAUSE AND ON THE GUARANTEES OF FAIR
PROCEDURE INHERENT IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, WITH OBVIOUS EMPHASIS ON "EQUAL PROTECTION."  IN MY VIEW THE
EQUAL PROTECTION CLAUSE IS NOT APPOSITE, AND ITS APPLICATION TO CASES
LIKE THE PRESENT ONE CAN LEAD ONLY TO MISCHIEVOUS RESULTS.  THIS CASE
SHOULD BE JUDGED SOLELY UNDER THE DUE PROCESS CLAUSE, AND I DO NOT
BELIEVE THAT THE CALIFORNIA PROCEDURE VIOLATES THAT PROVISION. 

                           EQUAL PROTECTION. 

TO APPROACH THE PRESENT PROBLEM IN TERMS OF THE EQUAL PROTECTION
CLAUSE IS, I SUBMIT, BUT TO SUBSTITUTE RESOUNDING PHRASES FOR
ANALYSIS.  I DISSENTED FROM THIS APPROACH IN GRIFFIN V. ILLINOIS, 351
U.S. 12, 29, 34-36, (FN1) AND I AM CONSTRAINED TO DISSENT FROM THE
IMPLICIT EXTENSION OF THE EQUAL PROTECTION APPROACH HERE - TO A CASE IN
WHICH THE STATE DENIES NO ONE AN APPEAL, BUT SEEKS ONLY TO KEEP WITHIN
REASONABLE BOUNDS THE INSTANCES IN WHICH APPELLATE COUNSEL WILL BE
ASSIGNED TO INDIGENTS. 

THE STATES, OF COURSE, ARE PROHIBITED BY THE EQUAL PROTECTION CLAUSE
FROM DISCRIMINATING BETWEEN "RICH" AND "POOR" AS SUCH IN THE
FORMULATION AND APPLICATION OF THEIR LAWS.  BUT IT IS A FAR DIFFERENT
THING TO SUGGEST THAT THIS PROVISION PREVENTS THE STATES FROM ADOPTING
A LAW OF GENERAL APPLICABILITY THAT MAY AFFECT THE POOR MORE HARSHLY
THAN IT DOES THE RICH, OR, ON THE OTHER HAND, FROM MAKING SOME EFFORT
TO REDRESS ECONOMIC IMBALANCES WHILE NOT ELIMINATING THEM ENTIRELY. 

EVERY FINANCIAL EXACTION WHICH THE STATE IMPOSES ON A UNIFORM BASIS
IS MORE EASILY SATISFIED BY THE WELL-TO-DO THAN BY THE INDIGENT.  YET I
TAKE IT THAT NO ONE WOULD DISPUTE THE CONSTITUTIONAL POWER OF THE STATE
TO LEVY A UNIFORM SALES TAX, TO CHARGE TUITION AT A STATE UNIVERSITY,
TO FIX RATES FOR THE PURCHASE OF WATER FROM A MUNICIPAL CORPORATION, TO
IMPOSE A STANDARD FINE FOR CRIMINAL VIOLATIONS, OR TO ESTABLISH MINIMUM
BAIL FOR VARIOUS CATEGORIES OF OFFENSES.  NOR COULD IT BE CONTENDED
THAT THE STATE MAY NOT CLASSIFY AS CRIMES ACTS WHICH THE POOR ARE MORE
LIKELY TO COMMIT THAN ARE THE RICH.  AND SURELY, THERE WOULD BE NO
BASIS FOR ATTACKING A STATE LAW WHICH PROVIDED BENEFITS FOR THE NEEDY
SIMPLY BECAUSE THOSE BENEFITS FELL SHORT OF THE GOODS OR SERVICES THAT
OTHERS COULD PURCHASE FOR THEMSELVES. 

LAWS SUCH AS THESE DO NOT DENY EQUAL PROTECTION TO THE LESS FORTUNATE
FOR ONE ESSENTIAL REASON: THE EQUAL PROTECTION CLAUSE DOES NOT IMPOSE
ON THE STATES "AN AFFIRMATIVE DUTY TO LIFT THE HANDICAPS FLOWING FROM
DIFFERENCES IN ECONOMIC CIRCUMSTANCES."  (FN2)  TO SO CONSTRUE IT WOULD
BE TO READ INTO THE CONSTITUTION A PHILOSOPHY OF LEVELING THAT WOULD BE
FOREIGN TO MANY OF OUR BASIC CONCEPTS OF THE PROPER RELATIONS BETWEEN
GOVERNMENT AND SOCIETY.  THE STATE MAY HAVE A MORAL OBLIGATION TO
ELIMINATE THE EVILS OF POVERTY, BUT IT IS NOT REQUIRED BY THE EQUAL
PROTECTION CLAUSE TO GIVE TO SOME WHATEVER OTHERS CAN AFFORD. 

THUS IT SHOULD BE APPARENT THAT THE PRESENT CASE, AS WITH DRAPER V.
WASHINGTON, POST, P. 487, AND LANE V. BROWN, POST, P. 477, BOTH DECIDED
TODAY, IS NOT ONE PROPERLY REGARDED AS ARISING UNDER THIS CLAUSE. 
CALIFORNIA DOES NOT DISCRIMINATE BETWEEN RICH AND POOR IN HAVING A
UNIFORM POLICY PERMITTING EVERYONE TO APPEAL AND TO RETAIN COUNSEL, AND
IN HAVING A SEPARATE RULE DEALING ONLY WITH THE STANDARDS FOR THE
APPOINTMENT OF COUNSEL FOR THOSE UNABLE TO RETAIN THEIR OWN ATTORNEYS. 
THE SOLE CLASSIFICATION ESTABLISHED BY THIS RULE IS BETWEEN THOSE CASES
THAT ARE BELIEVED TO HAVE MERIT AND THOSE REGARDED AS FRIVOLOUS.  AND,
OF COURSE, NO MATTER HOW FAR THE STATE RULE MIGHT GO IN PROVIDING
COUNSEL FOR INDIGENTS, IT COULD NEVER BE EXPECTED TO SATISFY AN
AFFIRMATIVE DUTY - IF ONE EXISTED - TO PLACE THE POOR ON THE SAME LEVEL
AS THOSE WHO CAN AFFORD THE BEST LEGAL TALENT AVAILABLE. 

PARENTHETICALLY, IT SHOULD BE NOTED THAT IF THE PRESENT PROBLEM MAY
BE VIEWED AS ONE OF EQUAL PROTECTION, SO MAY THE QUESTION OF THE RIGHT
TO APPOINTED COUNSEL AT TRIAL, AND THE COURT'S ANALYSIS OF THAT RIGHT
IN GIDEON V. WAINWRIGHT, ANTE, P. 335, DECIDED TODAY, IS WHOLLY
UNNECESSARY.  THE SHORT WAY TO DISPOSE OF GIDEON V. WAINWRIGHT, IN
OTHER WORDS, WOULD BE SIMPLY TO SAY THAT THE STATE DEPRIVES THE
INDIGENT OF EQUAL PROTECTION WHENEVER IT FAILS TO FURNISH HIM WITH
LEGAL SERVICES, AND PERHAPS WITH OTHER SERVICES AS WELL, EQUIVALENT TO
THOSE THAT THE AFFLUENT DEFENDANT CAN OBTAIN. 

THE REAL QUESTION IN THIS CASE, I SUBMIT, AND THE ONLY ONE THAT
PERMITS OF SATISFACTORY ANALYSIS, IS WHETHER OR NOT THE STATE RULE, AS
APPLIED IN THIS CASE, IS CONSISTENT WITH THE REQUIREMENTS OF FAIR
PROCEDURE GUARANTEED BY THE DUE PROCESS CLAUSE.  OF COURSE, IN
CONSIDERING THIS QUESTION, IT MUST NOT BE LOST SIGHT OF THAT THE
STATE'S RESPONSIBILITY UNDER THE DUE PROCESS CLAUSE IS TO PROVIDE
JUSTICE FOR ALL.  REFUSAL TO FURNISH CRIMINAL INDIGENTS WITH SOME
THINGS THAT OTHERS CAN AFFORD MAY FALL SHORT OF CONSTITUTIONAL
STANDARDS OF FAIRNESS.  THE PROBLEM BEFORE US IS WHETHER THIS IS SUCH A
CASE. 

          DUE PROCESS. 

IT BEARS REITERATION THAT CALIFORNIA'S PROCEDURE OF SCREENING ITS
CRIMINAL APPEALS TO DETERMINE WHETHER OR NOT COUNSEL OUGHT TO BE
APPOINTED DENIES TO NO ONE THE RIGHT TO APPEAL.  THIS IS NOT A CASE,
LIKE BURNS V. OHIO, 360 U.S. 252, IN WHICH A COURT RULE OR STATUTE BARS
ALL CONSIDERATION OF THE MERITS OF AN APPEAL UNLESS DOCKETING FEES ARE
PREPAID.  NOR IS IT LIKE GRIFFIN V. ILLINOIS, SUPRA, IN WHICH THE STATE
CONCEDED THAT "PETITIONERS NEEDED A TRANSCRIPT IN ORDER TO GET ADEQUATE
APPELLATE REVIEW OF THEIR ALLEGED TRIAL ERRORS."  351 U.S., AT 16. 
HERE IT IS THIS COURT WHICH FINDS, NOTWITHSTANDING CALIFORNIA'S
ASSERTIONS TO THE CONTRARY, THAT AS A MATTER OF CONSTITUTIONAL LAW
"ADEQUATE APPELLATE REVIEW" IS IMPOSSIBLE UNLESS COUNSEL HAS BEEN
APPOINTED.  AND WHILE GRIFFIN LEFT IT OPEN TO THE STATES TO DEVISE
"OTHER MEANS OF AFFORDING ADEQUATE AND EFFECTIVE APPELLATE REVIEW TO
INDIGENT DEFENDENTS," 351 U.S., AT 20, THE PRESENT DECISION ESTABLISHES
WHAT IS SEEMINGLY AN ABSOLUTE RULE UNDER WHICH THE STATE MAY BE LEFT
WITHOUT ANY MEANS OF PROTECTING ITSELF AGAINST THE EMPLOYMENT OF
COUNSEL IN FRIVOLOUS APPEALS.  (FN3) 

IT WAS PRECISELY TOWARDS PROVIDING ADEQUATE APPELLATE REVIEW - AS
PART OF WHAT THE COURT CONCEDES TO BE "CALIFORNIA'S FORWARD TREATMENT
OF INDIGENTS" - THAT THE STATE FORMULATED THE SYSTEM WHICH THE COURT
TODAY STRIKES DOWN.  THAT SYSTEM REQUIRES THE STATE APPELLATE COURTS TO
APPOINT COUNSEL ON APPEAL FOR ANY INDIGENT DEFENDANT EXCEPT "IF IN
THEIR JUDGMENT SUCH APPOINTMENT WOULD BE OF NO VALUE TO EITHER THE
DEFENDANT OR THE COURT."  PEOPLE V. HYDE, 51 CAL. 2D 152, 154, 331 P.2D
42, 43.  THIS JUDGMENT CAN BE REACHED ONLY AFTER AN INDEPENDENT
INVESTIGATION OF THE TRIAL RECORD BY THE REVIEWING COURT.  AND EVEN IF
COUNSEL IS DENIED, A FULL APPEAL ON THE MERITS IS ACCORDED TO THE
INDIGENT APPELLANT, TOGETHER WITH A STATEMENT OF THE REASONS WHY
COUNSEL WAS NOT ASSIGNED.  THERE IS NOTHING IN THE PRESENT CASE, OR IN
ANY OTHER CASE THAT HAS BEEN CITED TO US, TO INDICATE THAT THE SYSTEM
HAS RESULTED IN INJUSTICE.  QUITE THE CONTRARY, THERE IS EVERY REASON
TO BELIEVE THAT CALIFORNIA APPELLATE COURTS HAVE MADE A PAINSTAKING
EFFORT TO APPLY THE RULE FAIRLY AND TO LIVE UP TO THE STATE SUPREME
COURT'S MANDATE.  SEE, E.G., THE DISCUSSION IN PEOPLE V. VIGIL, 189
CAL. APP. 2D 478, 480-482, 11 CAL. RPTR.  319, 321-322. 

WE HAVE TODAY HELD THAT IN A CASE SUCH AS THE ONE BEFORE US, THERE IS
AN ABSOLUTE RIGHT TO THE SERVICES OF COUNSEL AT TRIAL.  GIDEON V.
WAINWRIGHT, ANTE, P. 335.  BUT THE APPELLATE PROCEDURES INVOLVED HERE
STAND ON AN ENTIRELY DIFFERENT CONSTITUTIONAL FOOTING.  FIRST,
APPELLATE REVIEW IS IN ITSELF NOT REQUIRED BY THE FOURTEENTH AMENDMENT,
MCKANE V. DURSTON, 153 U.S. 684; SEE GRIFFIN V. ILLINOIS, SUPRA, AT 18,
AND THUS THE QUESTION PRESENTED IS THE NARROW ONE WHETHER THE STATE'S
RULES WITH RESPECT TO THE APPOINTMENT OF COUNSEL ARE SO ARBITRARY OR
UNREASONABLE, IN THE CONTEXT OF THE PARTICULAR APPELLATE PROCEDURE THAT
IT HAS ESTABLISHED, AS TO REQUIRE THEIR INVALIDATION.  SECOND, THE
KINDS OF QUESTIONS THAT MAY ARISE ON APPEAL ARE CIRCUMSCRIBED BY THE
RECORD OF THE PROCEEDINGS THAT LED TO THE CONVICTION; THEY DO NOT
ENCOMPASS THE LARGE VARIETY OF TACTICAL AND STRATEGIC PROBLEMS THAT
MUST BE RESOLVED AT THE TRIAL.  THIRD, AS CALIFORNIA APPLIES ITS RULE,
THE INDIGENT APPELLANT RECEIVES THE BENEFIT OF EXPERT AND CONSCIENTIOUS
LEGAL APPRAISAL OF THE MERITS OF HIS CASE ON THE BASIS OF THE TRIAL
RECORD, AND WHETHER OR NOT HE IS ASSIGNED COUNSEL, IS GUARANTEED FULL
CONSIDERATION OF HIS APPEAL.  IT WOULD BE PAINTING WITH TOO BROAD A
BRUSH TO CONCLUDE THAT UNDER THESE CIRCUMSTANCES AN APPEAL IS JUST LIKE
A TRIAL. 

WHAT THE COURT FINDS CONSTITUTIONALLY OFFENSIVE IN CALIFORNIA'S
PROCEDURE BEARS A STRIKING RESEMBLANCE TO THE RULES OF THIS COURT AND
MANY STATE COURTS OF LAST RESORT ON PETITIONS FOR CERTIORARI OR FOR
LEAVE TO APPEAL FILED BY INDIGENT DEFENDANTS PRO SE.  UNDER THE
PRACTICE OF THIS COURT, ONLY IF IT APPEARS FROM THE PETITION FOR
CERTIORARI THAT A CASE MERITS REVIEW IS LEAVE TO PROCEED IN FORMA
PAUPERIS GRANTED, THE CASE TRANSFERRED TO THE APPELLATE DOCKET, AND
COUNSEL APPOINTED.  SINCE OUR REVIEW IS GENERALLY DISCRETIONARY, AND
SINCE WE ARE OFTEN NOT EVEN GIVEN THE BENEFIT OF A RECORD IN THE
PROCEEDINGS BELOW, THE DISADVANTAGES TO THE INDIGENT PETITIONER MIGHT
BE REGARDED AS MORE SUBSTANTIAL THAN IN CALIFORNIA.  BUT AS
CONSCIENTIOUSLY COMMITTED AS THIS COURT IS TO THE GREAT PRINCIPLE OF
"EQUAL JUSTICE UNDER LAW," IT HAS NEVER DEEMED ITSELF CONSTITUTIONALLY
REQUIRED TO APPOINT COUNSEL TO ASSIST IN THE PREPARATION OF EACH OF THE
MORE THAN 1,000 PRO SE PETITIONS FOR CERTIORARI CURRENTLY BEING FILED
EACH TERM.  WE SHOULD KNOW FROM OUR OWN EXPERIENCE THAT APPELLATE
COURTS GENERALLY GO OUT OF THEIR WAY TO GIVE FAIR CONSIDERATION TO
THOSE WHO ARE UNREPRESENTED. 

THE COURT DISTINGUISHES OUR REVIEW FROM THE PRESENT CASE ON THE
GROUNDS THAT THE CALIFORNIA RULE RELATES TO "THE FIRST APPEAL, GRANTED
AS A MATTER OF RIGHT."  ANTE, P. 356.  BUT I FAIL TO SEE THE
SIGNIFICANCE OF THIS DIFFERENCE.  SURELY, IT CANNOT BE CONTENDED THAT
THE REQUIREMENTS OF FAIR PROCEDURE ARE EXHAUSTED ONCE AN INDIGENT HAS
BEEN GIVEN ONE APPELLATE REVIEW.  CF. LANE V. BROWN, POST, P. 477.  NOR
CAN IT WELL BE SUGGESTED THAT HAVING APPOINTED COUNSEL IS MORE
NECESSARY TO THE FAIR ADMINISTRATION OF JUSTICE IN AN INITIAL APPEAL
TAKEN AS A MATTER OF RIGHT, WHICH THE REVIEWING COURT ON THE FULL
RECORD HAS ALREADY DETERMINED TO BE FRIVOLOUS, THAN IN A PETITION
ASKING A HIGHER APPELLATE COURT TO EXERCISE ITS DISCRETION TO CONSIDER
WHAT MAY BE A SUBSTANTIAL CONSTITUTIONAL CLAIM. 

FURTHER, THERE IS NO INDICATION IN THIS RECORD, OR IN THE STATE CASES
CITED TO US, THAT THE CALIFORNIA PROCEDURE DIFFERS IN ANY MATERIAL
RESPECT FROM THE SCREENING OF APPEALS IN FEDERAL CRIMINAL CASES THAT IS
PRESCRIBED BY 28 U.S.C. SEC. 1915.  AS RECENTLY AS LAST TERM, IN
COPPEDGE V. UNITED STATES, 369 U.S. 438, WE HAD OCCASION TO PASS UPON
THE APPLICATION OF THIS STATUTE.  ALTHOUGH THAT DECISION ESTABLISHED
STRINGENT RESTRICTIONS ON THE POWER OF FEDERAL COURTS TO REJECT AN
APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS, IT NONETHELESS
RECOGNIZED THAT THE FEDERAL COURTS COULD PREVENT THE NEEDLESS
EXPENDITURE OF PUBLIC FUNDS BY SUMMARILY DISPOSING OF FRIVOLOUS
APPEALS.  INDEED IN SOME RESPECTS, CALIFORNIA HAS OUTDONE THE FEDERAL
SYSTEM, SINCE IT PROVIDES A TRANSCRIPT AND AN APPEAL ON THE MERITS IN
ALL CASES, NO MATTER HOW FRIVOLOUS. 

I CANNOT AGREE THAT THE CONSTITUTION PROHIBITS A STATE, IN SEEKING TO
REDRESS ECONOMIC IMBALANCES AT ITS BAR OF JUSTICE AND TO PROVIDE
INDIGENTS WITH FULL REVIEW, FROM TAKING REASONABLE STEPS TO GUARD
AGAINST NEEDLESS EXPENSE.  THIS IS ALL THAT CALIFORNIA HAS DONE. 
ACCORDINGLY, I WOULD AFFIRM THE STATE JUDGMENT.  (FN4)    FN1  THE
MAJORITY IN GRIFFIN APPEARED TO RELY, AS HERE, ON A BLEND OF THE EQUAL
PROTECTION AND DUE PROCESS CLAUSES IN ARRIVING AT THE RESULT.  SO FAR
AS THE RESULT IN THAT CASE RESTED ON DUE PROCESS GROUNDS, I FULLY
ACCEPT THE AUTHORITY OF GRIFFIN. 

FN2  GRIFFIN V. ILLINOIS, SUPRA, AT 34 (DISSENTING OPINION OF THIS
WRITER). 

FN3  CALIFORNIA LAW PROVIDES THAT IF COUNSEL IS APPOINTED ON APPEAL,
THE COURT SHALL FIX A REASONABLE FEE TO BE PAID BY THE STATE. 
CALIFORNIA PENAL CODE SEC. 1241.  IT IS OF COURSE CLEAR THAT THIS COURT
MAY NOT REQUIRE THE STATE TO COMPEL ITS ATTORNEYS TO DONATE THEIR
SERVICES.    FN4  PETITIONERS ALSO CONTEND THAT THEY WERE DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.  THIS CLAIM, IN MY VIEW, IS
WITHOUT MERIT.  A READING OF THE RECORD LEAVES LITTLE DOUBT THAT
PETITIONERS' DISMISSAL OF THEIR APPOINTED COUNSEL AND THEIR EFFORTS TO
OBTAIN A CONTINUANCE WERE DESIGNED TO DELAY THE PROCEEDINGS AND, IN ALL
LIKELIHOOD, TO MANUFACTURE AN APPEALABLE ISSUE.  MOREOVER, THE TRIAL
COURT ACTED WELL WITHIN CONSTITUTIONAL BOUNDS IN DENYING THE CLAIM THAT
THERE WAS A CONFLICT OF INTEREST BETWEEN DOUGLAS AND MEYES THAT
REQUIRED A SEPARATE APPOINTED ATTORNEY FOR EACH. 
..END :

















GRAY V. SANDERS 372 U.S. 368 


NO. 112.  ARGUED JANUARY 17, 1963.  - DECIDED MARCH 18, 1963.  - 203 F.
SUPP. 158, JUDGMENT VACATED AND CASE REMANDED. 


APPELLEE, A QUALIFIED VOTER IN PRIMARY AND GENERAL ELECTIONS IN FULTON
COUNTY, GEORGIA, SUED IN A FEDERAL DISTRICT COURT TO RESTRAIN
APPELLANTS, THE SECRETARY OF STATE AND OFFICIALS OF THE STATE
DEMOCRATIC EXECUTIVE COMMITTEE, FROM USING GEORGIA'S COUNTY-UNIT SYSTEM
AS A BASIS FOR COUNTING VOTES IN A DEMOCRATIC PRIMARY ELECTION FOR THE
NOMINATION OF A UNITED STATES SENATOR AND STATEWIDE OFFICERS - WHICH
WAS PRACTICALLY EQUIVALENT TO ELECTION.  SUCH PRIMARY ELECTIONS ARE
GOVERNED BY A GEORGIA STATUTE, WHICH WAS AMENDED IN 1962 SO AS TO
ALLOCATE UNIT VOTES TO COUNTIES AS FOLLOWS: COUNTIES WITH POPULATIONS
NOT EXCEEDING 15,000, TWO UNITS; AN ADDITIONAL UNIT FOR THE NEXT 5,000
PERSONS; AN ADDITIONAL UNIT FOR THE NEXT 10,000; AN ADDITIONAL UNIT FOR
EACH OF THE NEXT TWO BRACKETS OF 15,000; AND, THEREAFTER, TWO MORE
UNITS FOR EACH INCREASE OF 30,000.  ALL CANDIDATES FOR STATEWIDE OFFICE
WERE REQUIRED TO RECEIVE A MAJORITY OF THE COUNTY-UNIT VOTES TO BE
ENTITLED TO NOMINATION IN THE FIRST PRIMARY.  THE PRACTICAL EFFECT OF
THIS SYSTEM IS THAT THE VOTE OF EACH CITIZEN COUNTS FOR LESS AND LESS
AS THE POPULATION OF HIS COUNTY INCREASES, AND A COMBINATION OF THE
UNITS FROM THE COUNTIES HAVING THE SMALLEST POPULATION GIVES COUNTIES
HAVING ONE-THIRD OF THE TOTAL POPULATION OF THE STATE A CLEAR MAJORITY
OF COUNTY VOTES.  HELD: 

1.  SINCE THE CONSTITUTIONALITY OF A STATE STATUTE WAS INVOLVED AND
THE QUESTION WAS A SUBSTANTIAL ONE, A THREE-JUDGE COURT WAS PROPERLY
CONVENED TO HEAR THIS CASE, AS REQUIRED UNDER 28 U.S.C. SEC. 2281.  P.
370. 

2.  STATE REGULATION OF THESE PRIMARY ELECTIONS MAKES THE ELECTION
PROCESS STATE ACTION WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT. 
PP. 374-375. 

3.  APPELLEE, LIKE ANY PERSON WHOSE RIGHT TO VOTE IS IMPAIRED, HAD
STANDING TO SUE.  P. 375. 

4.  THE CASE IS NOT MOOT BY REASON OF THE FACT THAT THE DEMOCRATIC
COMMITTEE VOTED TO HOLD THE 1962 PRIMARY ELECTION ON A POPULAR-VOTE
BASIS, SINCE THE 1962 ACT REMAINS IN FORCE AND IT WOULD GOVERN FUTURE
ELECTIONS IF THE COMPLAINT WERE DISMISSED.  PP. 375-376. 

5.  THE USE OF THIS ELECTION SYSTEM IN A STATEWIDE ELECTION VIOLATES
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 376-381. 

(A)  THE DISTRICT COURT CORRECTLY HELD THAT THE COUNTY-UNIT SYSTEM,
AS APPLIED IN A STATEWIDE ELECTION, VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT; BUT IT ERRED IN FRAMING ITS
INJUNCTION SO THAT A COUNTY-UNIT SYSTEM MIGHT BE USED IN WEIGHTING THE
VOTES IN A STATEWIDE ELECTION, IF THE SYSTEM SHOWED NO GREATER
DISPARITY AGAINST A COUNTY THAN EXISTS AGAINST ANY STATE IN THE CONDUCT
OF NATIONAL ELECTIONS.  PP. 373-374, 376-379. 

(B)  THE EQUAL PROTECTION CLAUSE REQUIRES THAT, ONCE A GEOGRAPHICAL
UNIT FOR WHICH A REPRESENTATIVE IS TO BE CHOSEN IS DESIGNATED, ALL WHO
PARTICIPATE IN THE ELECTION MUST HAVE AN EQUAL VOTE - WHATEVER THEIR
RACE; WHATEVER THEIR SEX; WHATEVER THEIR OCCUPATION; WHATEVER THEIR
INCOME AND WHEREVER THEIR HOME MAY BE IN THAT GEOGRAPHICAL UNIT.  PP.
379-380. 

(C)  THE ONLY WEIGHTING OF VOTES SANCTIONED BY THE CONSTITUTION
CONCERNS MATTERS OF REPRESENTATION, SUCH AS AN ALLOCATION OF SENATORS
IRRESPECTIVE OF POPULATION AND THE USE OF THE ELECTORAL COLLEGE IN THE
CHOICE OF A PRESIDENT.  PP. 380-381. 

(D)  THE CONCEPTION OF POLITICAL EQUALITY FROM THE DECLARATION OF
INDEPENDENCE, TO LINCOLN'S GETTYSBURG ADDRESS, TO THE FIFTEENTH,
SEVENTEENTH, AND NINETEENTH AMENDMENTS CAN MEAN ONLY ONE THING - ONE
PERSON, ONE VOTE.  P. 381. 

GRAY, CHAIRMAN OF THE GEORGIA STATE DEMOCRATIC EXECUTIVE COMMITTEE, ET
AL. V. SANDERS. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

                    I. 

THIS SUIT WAS INSTITUTED BY APPELLEE, WHO IS QUALIFIED TO VOTE IN
PRIMARY AND GENERAL ELECTIONS IN FULTON COUNTY, GEORGIA, TO RESTRAIN
APPELLANTS FROM USING GEORGIA'S COUNTY UNIT SYSTEM AS A BASIS FOR
COUNTING VOTES IN A DEMOCRATIC PRIMARY FOR THE NOMINATION OF A UNITED
STATES SENATOR AND STATEWIDE OFFICERS, AND FOR DECLARATORY RELIEF. 
APPELLANTS ARE THE CHAIRMAN AND SECRETARY OF THE GEORGIA STATE
DEMOCRATIC EXECUTIVE COMMITTEE, AND THE SECRETARY OF STATE OF GEORGIA. 
APPELLEE ALLEGES THAT THE USE OF THE COUNTY UNIT SYSTEM IN COUNTING,
TABULATING, CONSOLIDATING, AND CERTIFYING VOTES CAST IN PRIMARY
ELECTIONS FOR STATEWIDE OFFICES VIOLATES THE EQUAL PROTECTION CLAUSE
AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND THE
SEVENTEENTH AMENDMENT.  AS THE CONSTITUTIONALITY OF A STATE STATUTE WAS
INVOLVED AND THE QUESTION WAS A SUBSTANTIAL ONE, A THREE-JUDGE COURT
WAS PROPERLY CONVENED.  SEE 28 U.S.C. SEC. 2281; UNITED STATES V.
GEORGIA PUBLIC SERVICE COMM'N, 371 U.S. 285. 

APPELLANTS MOVED TO DISMISS; AND THEY ALSO FILED AN ANSWER DENYING
THAT THE COUNTY UNIT SYSTEM WAS UNCONSTITUTIONAL AND ALLEGING THAT IT
WAS DESIGNED "TO ACHIEVE A REASONABLE BALANCE AS BETWEEN URBAN AND
RURAL ELECTORAL POWER." 

UNDER GEORGIA LAW EACH COUNTY IS GIVEN A SPECIFIED NUMBER OF
REPRESENTATIVES IN THE LOWER HOUSE OF THE GENERAL ASSEMBLY.  (FN1) THIS
COUNTY UNIT SYSTEM AT THE TIME THIS SUIT WAS FILED WAS EMPLOYED AS
FOLLOWS IN STATEWIDE PRIMARIES:  (FN2)  (1) CANDIDATES FOR NOMINATIONS
WHO RECEIVED THE HIGHEST NUMBER OF POPULAR VOTES IN A COUNTY WERE
CONSIDERED TO HAVE CARRIED THE COUNTY AND TO BE ENTITLED TO TWO VOTES
FOR EACH REPRESENTATIVE TO WHICH THE COUNTY IS ENTITLED IN THE LOWER
HOUSE OF THE GENERAL ASSEMBLY; (2) THE MAJORITY OF THE COUNTY UNIT VOTE
NOMINATED A UNITED STATES SENATOR AND GOVERNOR; THE PLURALITY OF THE
COUNTY UNIT VOTE NOMINATED THE OTHERS. 

APPELLEE ASSERTED THAT THE TOTAL POPULATION OF GEORGIA IN 1960 WAS
3,943,116; THAT THE POPULATION OF FULTON COUNTY, WHERE HE RESIDES, WAS
556,326; THAT THE RESIDENTS OF FULTON COUNTY COMPRISED 14.11% OF
GEORGIA'S TOTAL POPULATION; BUT THAT, UNDER THE COUNTY UNIT SYSTEM, THE
SIX UNIT VOTES OF FULTON COUNTY CONSTITUTED 1.46% OF THE TOTAL OF 410
UNIT VOTES, OR ONE-TENTH OF FULTON COUNTY'S PERCENTAGE OF STATEWIDE
POPULATION.  THE COMPLAINT FURTHER ALLEGED THAT ECHOLS COUNTY, THE
LEAST POPULOUS COUNTY IN GEORGIA, HAD A POPULATION IN 1960 OF 1,876, OR
.05% OF THE STATE'S POPULATION, BUT THE UNIT VOTE OF ECHOLS COUNTY WAS
.48% OF THE TOTAL UNIT VOTE OF ALL COUNTIES IN GEORGIA, OR 10 TIMES
ECHOLS COUNTY'S STATEWIDE PERCENTAGE OF POPULATION.  ONE UNIT VOTE IN
ECHOLS COUNTY REPRESENTED 938 RESIDENTS, WHEREAS ONE UNIT VOTE IN
FULTON COUNTY REPRESENTED 92,721 RESIDENTS.  THUS, ONE RESIDENT IN
ECHOLS COUNTY HAD AN INFLUENCE IN THE NOMINATION OF CANDIDATES
EQUIVALENT TO 99 RESIDENTS OF FULTON COUNTY. 

ON THE SAME DAY AS THE HEARING IN THE DISTRICT COURT, GEORGIA AMENDED
THE STATUTES CHALLENGED IN THE COMPLAINT.  THIS AMENDMENT, (FN3)
MODIFIED THE COUNTY UNIT SYSTEM BY ALLOCATING UNITS TO COUNTIES IN
ACCORDANCE WITH A "BRACKET SYSTEM" INSTEAD OF DOUBLING THE NUMBER OF
REPRESENTATIVES OF EACH COUNTY IN THE LOWER HOUSE OF THE GEORGIA
ASSEMBLY.  COUNTIES WITH FROM 0 TO 15,000 PEOPLE WERE ALLOTTED TWO
UNITS; AN ADDITIONAL ONE UNIT WAS ALLOTTED FOR THE NEXT 5,000 PERSONS;
AN ADDITIONAL UNIT FOR THE NEXT 10,000 PERSONS; ANOTHER UNIT FOR EACH
OF THE NEXT TWO BRACKETS OF 15,000 PERSONS; AND, THEREAFTER, TWO MORE
UNITS FOR EACH INCREASE OF 30,000 PERSONS.  UNDER THE AMENDED ACT, ALL
CANDIDATES FOR STATEWIDE OFFICE (NOT MERELY FOR SENATOR AND GOVERNOR AS
UNDER THE EARLIER ACT) ARE REQUIRED TO RECEIVE A MAJORITY OF THE COUNTY
UNIT VOTES TO BE ENTITLED TO NOMINATION IN THE FIRST PRIMARY.  IN
ADDITION, IN ORDER TO BE NOMINATED IN THE FIRST PRIMARY, A CANDIDATE
HAS TO RECEIVE A MAJORITY OF THE POPULAR VOTES UNLESS THERE ARE ONLY
TWO CANDIDATES FOR THE NOMINATION AND EACH RECEIVES AN EQUAL NUMBER OF
UNIT VOTES, IN WHICH EVENT THE CANDIDATE WITH THE POPULAR MAJORITY
WINS.   IF NO CANDIDATE RECEIVES BOTH A MAJORITY OF THE UNIT VOTES AND
A MAJORITY OF THE POPULAR VOTES, A SECOND RUN-OFF PRIMARY IS REQUIRED
BETWEEN THE CANDIDATE RECEIVING THE HIGHEST NUMBER OF UNIT VOTES AND
THE CANDIDATE RECEIVING THE HIGHEST NUMBER OF POPULAR VOTES.  IN THE
SECOND PRIMARY, THE CANDIDATE RECEIVING THE HIGHEST NUMBER OF UNIT
VOTES IS TO PREVAIL.  BUT AGAIN, IF THERE IS A TIE IN UNIT VOTES, THE
CANDIDATE WITH THE POPULAR MAJORITY WINS. 

APPELLEE WAS ALLOWED TO AMEND HIS COMPLAINT SO AS TO CHALLENGE THE
AMENDED ACT.  THE DISTRICT COURT HELD THAT THE AMENDED ACT HAD SOME OF
THE VICES OF THE PRIOR ACT.  IT STATED THAT UNDER THE AMENDED ACT "THE
VOTE OF EACH CITIZEN COUNTS FOR LESS AND LESS AS THE POPULATION OF THE
COUNTY OF HIS RESIDENCE INCREASES."  203 F. SUPP. 158, 170, N. 10.  IT
WENT ON TO SAY: 

"THERE ARE 97 TWO-UNIT COUNTIES, TOTALLING 194 UNIT VOTES, AND 22
COUNTIES TOTALLING 66 UNIT VOTES, ALTOGETHER 260 UNIT VOTES, WITHIN 14
OF A MAJORITY; BUT NO COUNTY IN THE ABOVE HAS AS MUCH AS 20,000
POPULATION.  THE REMAINING 40 COUNTIES RANGE IN POPULATION FROM 20,481
TO 556,326, BUT THEY CONTROL ALTOGETHER ONLY 287 COUNTY UNIT VOTES. 
COMBINATION OF THE UNITS FROM THE COUNTIES HAVING THE SMALLEST
POPULATION GIVES COUNTIES HAVING POPULATION OF ONE-THIRD OF THE TOTAL
IN THE STATE A CLEAR MAJORITY OF COUNTY UNITS."  IBID. 

THE DISTRICT COURT HELD THAT AS A RESULT OF BAKER V. CARR, 369 U.S.
186, IT HAD JURISDICTION, THAT A JUSTICIABLE CASE WAS STATED, THAT
APPELLEE HAD STANDING, AND THAT THE DEMOCRATIC PRIMARY IN GEORGIA IS
"STATE" ACTION WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT.  IT HELD
THAT THE COUNTY UNIT SYSTEM AS APPLIED VIOLATES THE EQUAL PROTECTION
CLAUSE, AND IT ISSUED AN INJUNCTION, (FN4) NOT AGAINST CONDUCTING ANY
PARTY PRIMARY ELECTION UNDER THE COUNTY UNIT SYSTEM, BUT AGAINST
CONDUCTING SUCH AN ELECTION UNDER A COUNTY UNIT SYSTEM THAT DOES NOT
MEET THE REQUIREMENTS SPECIFIED BY THE COURT.  (FN5)  203 F. SUPP.
158.  IN OTHER WORDS, THE DISTRICT COURT DID NOT PROCEED ON THE BASIS
THAT IN A STATEWIDE ELECTION EVERY QUALIFIED PERSON WAS ENTITLED TO ONE
VOTE AND THAT ALL WEIGHTED VOTING WAS OUTLAWED.  RATHER, IT ALLOWED A
COUNTY UNIT SYSTEM TO BE USED IN WEIGHTING THE VOTES IF THE SYSTEM
SHOWED NO GREATER DISPARITY AGAINST A COUNTY THAN EXISTS AGAINST ANY
STATE IN THE CONDUCT OF NATIONAL ELECTIONS.  (FN6)  THEREAFTER THE
DEMOCRATIC COMMITTEE VOTED TO HOLD THE 1962 PRIMARY ELECTION FOR THE
STATEWIDE OFFICES MENTIONED ON A POPULAR VOTE BASIS.  WE NOTED PROBABLE
JURISDICTION.  370 U.S. 921. 

                     II. 

WE AGREE WITH THE DISTRICT COURT THAT THE ACTION OF THIS PARTY IN THE
CONDUCT OF ITS PRIMARY CONSTITUTES STATE ACTION WITHIN THE MEANING OF
THE FOURTEENTH AMENDMENT.  JUDGE SIBLEY, WRITING FOR THE COURT IN
CHAPMAN V. KING, 154 F.2D 460, SHOWED WITH METICULOUS DETAIL THE MANNER
IN WHICH GEORGIA REGULATES THE CONDUCT OF PARTY PRIMARIES (ID., PP. 463
464) AND HE CONCLUDED: 

"WE THINK THESE PROVISIONS SHOW THAT THE STATE, THROUGH THE MANAGERS
IT REQUIRES, COLLABORATES IN THE CONDUCT OF THE PRIMARY, AND PUTS ITS
POWER BEHIND THE RULES OF THE PARTY.  IT ADOPTS THE PRIMARY AS A PART
OF THE PUBLIC ELECTION MACHINERY.  THE EXCLUSIONS OF VOTERS MADE BY THE
PARTY BY THE PRIMARY RULES BECOME EXCLUSIONS ENFORCED BY THE STATE." 
ID., P. 464. 

WE AGREE WITH THAT RESULT AND CONCLUDE THAT STATE REGULATION OF THIS
PRELIMINARY PHASE OF THE ELECTION PROCESS MAKES IT STATE ACTION.  SEE
UNITED STATES V. CLASSIC, 313 U.S. 299; SMITH V. ALLWRIGHT, 321 U.S.
649. 

WE ALSO AGREE THAT APPELLEE, LIKE ANY PERSON WHOSE RIGHT TO VOTE IS
IMPAIRED (SMITH V. ALLWRIGHT, SUPRA; BAKER V. CARR, SUPRA, PP. 204
208), HAS STANDING TO SUE.  (FN7) 

MOREOVER, WE THINK THE CASE IS NOT MOOT BY REASON OF THE FACT THAT
THE DEMOCRATIC COMMITTEE VOTED TO HOLD THE 1962 PRIMARY ON A POPULAR
VOTE BASIS.  BUT FOR THE INJUNCTION ISSUED BELOW, THE 1962 ACT REMAINS
IN FORCE; AND IF THE COMPLAINT WERE DISMISSED IT WOULD GOVERN FUTURE
ELECTIONS.  IN ADDITION, THE VOLUNTARY ABANDONMENT OF A PRACTICE DOES
NOT RELIEVE A COURT OF ADJUDICATING ITS LEGALITY, PARTICULARLY WHERE
THE PRACTICE IS DEEPLY ROOTED AND LONG STANDING.  FOR IF THE CASE WERE
DISMISSED AS MOOT APPELLANTS WOULD BE "FREE TO RETURN TO  ...  THEIR
OLD WAYS."  UNITED STATES V. W.T. GRANT CO., 345 U.S. 629, 632. 

                                  III. 

ON THE MERITS WE TAKE A DIFFERENT VIEW OF THE NATURE OF THE PROBLEM
THAN DID THE DISTRICT COURT. 

THIS CASE, UNLIKE BAKER V. CARR, SUPRA, DOES NOT INVOLVE A QUESTION
OF THE DEGREE TO WHICH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT LIMITS THE AUTHORITY OF A STATE LEGISLATURE IN DESIGNING THE
GEOGRAPHICAL DISTRICTS FROM WHICH REPRESENTATIVES ARE CHOSEN EITHER FOR
THE STATE LEGISLATURE OR FOR THE FEDERAL HOUSE OF REPRESENTATIVES.  NOR
DOES IT INCLUDE THE RELATED PROBLEMS OF GOMILLION V. LIGHTFOOT, 364
U.S. 339, WHERE "GERRYMANDERING" WAS USED TO EXCLUDE A MINORITY GROUP
FROM PARTICIPATION IN MUNICIPAL AFFAIRS.  NOR DOES IT PRESENT THE
QUESTION, INHERENT IN THE BICAMERAL FORM OF OUR FEDERAL GOVERNMENT,
WHETHER A STATE MAY HAVE ONE HOUSE CHOSEN WITHOUT REGARD TO
POPULATION.  THE DISTRICT COURT, HOWEVER, ANALOGIZED GEORGIA'S USE OF
THE COUNTY UNIT SYSTEM IN DETERMINING THE RESULTS OF A STATEWIDE
ELECTION TO PHASES OF OUR FEDERAL SYSTEM.  IT POINTED OUT THAT UNDER
THE ELECTORAL COLLEGE, (FN8) REQUIRED BY ART. II, SEC. 1, OF THE
CONSTITUTION AND THE TWELFTH AMENDMENT IN THE ELECTION OF THE
PRESIDENT, VOTING STRENGTH "IS NOT IN EXACT PROPORTION TO POPULATION
...  .  RECOGNIZING THAT THE ELECTORAL COLLEGE WAS SET UP AS A
COMPROMISE TO ENABLE THE FORMATION OF THE UNION AMONG THE SEVERAL
SOVEREIGN STATES, IT STILL COULD HARDLY BE SAID THAT SUCH A SYSTEM USED
IN A STATE AMONG ITS COUNTIES, ASSUMING RATIONALITY AND ABSENCE OF
ARBITRARINESS IN END RESULT, COULD BE TERMED INVIDIOUS."  203 F. SUPP.,
AT 169. 

ACCORDINGLY THE DISTRICT COURT AS ALREADY NOTED (FN9) HELD THAT USE
OF THE COUNTY UNIT SYSTEM IN COUNTING THE VOTES IN A STATEWIDE ELECTION
WAS PERMISSIBLE "IF THE DISPARITY AGAINST ANY COUNTY IS NOT IN EXCESS
OF THE DISPARITY THAT EXISTS AGAINST ANY STATE IN THE MOST RECENT
ELECTORAL COLLEGE ALLOCATION."  203 F. SUPP., AT 170.  MOREOVER THE
DISTRICT COURT HELD THAT USE OF THE COUNTY UNIT SYSTEM IN COUNTING THE
VOTES IN A STATEWIDE ELECTION WAS PERMISSIBLE "IF THE DISPARITY AGAINST
ANY COUNTY IS NOT IN EXCESS OF THE DISPARITY THAT EXISTS  ...  UNDER
THE EQUAL PROPORTIONS FORMULA FOR REPRESENTATION OF THE SEVERAL STATES
IN THE CONGRESS."  IBID.  THE ASSUMPTION IMPLICIT IN THESE CONCLUSIONS
IS THAT SINCE EQUALITY IS NOT INHERENT IN THE ELECTORAL COLLEGE AND
SINCE PRECISE EQUALITY AMONG BLOCS OF VOTES IN ONE STATE OR IN THE
SEVERAL STATES WHEN IT COMES TO THE ELECTION OF MEMBERS OF THE HOUSE OF
REPRESENTATIVES IS NEVER POSSIBLE, PRECISE EQUALITY IS NOT NECESSARY IN
STATEWIDE ELECTIONS. 

WE THINK THE ANALOGIES TO THE ELECTORAL COLLEGE, TO DISTRICTING AND
REDISTRICTING, AND TO OTHER PHASES OF THE PROBLEMS OF REPRESENTATION IN
STATE OR FEDERAL LEGISLATURES OR CONVENTIONS (FN10) ARE INAPPOSITE. 
THE INCLUSION OF THE ELECTORAL COLLEGE IN THE CONSTITUTION, AS THE
RESULT OF SPECIFIC HISTORICAL CONCERNS, (FN11) VALIDATED THE COLLEGIATE
PRINCIPLE DESPITE ITS INHERENT NUMERICAL INEQUALITY, BUT IMPLIED
NOTHING ABOUT THE USE OF AN ANALOGOUS SYSTEM BY A STATE IN A STATEWIDE
ELECTION.  NO SUCH SPECIFIC ACCOMMODATION OF THE LATTER WAS EVER
UNDERTAKEN, AND THEREFORE NO VALIDATION OF ITS NUMERICAL INEQUALITY
ENSUED.  NOR DOES THE QUESTION HERE HAVE ANYTHING TO DO WITH THE
COMPOSITION OF THE STATE OR FEDERAL LEGISLATURE.  AND WE INTIMATE NO
OPINION ON THE CONSTITUTIONAL PHASES OF THAT PROBLEM BEYOND WHAT WE
SAID IN BAKER V. CARR, SUPRA.  THE PRESENT CASE IS ONLY A VOTING CASE. 
CF. NIXON V. HERNDON, 273 U.S. 536; NIXON V. CONDON, 286 U.S. 73; SMITH
V. ALLWRIGHT, SUPRA.  GEORGIA GIVES EVERY QUALIFIED VOTER ONE VOTE IN A
STATEWIDE ELECTION; BUT IN COUNTING THOSE VOTES SHE EMPLOYS THE COUNTY
UNIT SYSTEM WHICH IN END RESULT WEIGHTS THE RURAL VOTE MORE HEAVILY
THAN THE URBAN VOTE AND WEIGHTS SOME SMALL RURAL COUNTIES HEAVIER THAN
OTHER LARGER RURAL COUNTIES. 

STATES CAN WITHIN LIMITS SPECIFY THE QUALIFICATIONS OF VOTERS IN BOTH
STATE AND FEDERAL ELECTIONS; THE CONSTITUTION INDEED MAKES VOTERS'
QUALIFICATIONS REST ON STATE LAW EVEN IN FEDERAL ELECTIONS.  ART. I,
SEC. 2.  AS WE HELD IN LASSITER V. NORTHAMPTON ELECTION BOARD, 360 U.S.
45, A STATE MAY IF IT CHOOSES REQUIRE VOTERS TO PASS LITERACY TESTS,
PROVIDED OF COURSE THAT LITERACY IS NOT USED AS A CLOAK TO DISCRIMINATE
AGAINST ONE CLASS OR GROUP.  BUT WE NEED NOT DETERMINE ALL THE
LIMITATIONS THAT ARE PLACED ON THIS POWER OF A STATE TO DETERMINE THE
QUALIFICATIONS OF VOTERS, FOR APPELLEE IS A QUALIFIED VOTER.    THE
FIFTEENTH AMENDMENT PROHIBITS A STATE FROM DENYING OR ABRIDGING A
NEGRO'S RIGHT TO VOTE.  THE NINETEENTH AMENDMENT DOES THE SAME FOR
WOMEN.  IF A STATE IN A STATEWIDE ELECTION WEIGHTED THE MALE VOTE MORE
HEAVILY THAN THE FEMALE VOTE OR THE WHITE VOTE MORE HEAVILY THAN THE
NEGRO VOTE; NONE COULD SUCCESSFULLY CONTEND THAT THAT DISCRIMINATION
WAS ALLOWABLE.  SEE TERRY V. ADAMS, 345 U.S. 461.  HOW THEN CAN ONE
PERSON BE GIVEN TWICE OR TEN TIMES THE VOTING POWER OF ANOTHER PERSON
IN A STATEWIDE ELECTION MERELY BECAUSE HE LIVES IN A RURAL AREA OR
BECAUSE HE LIVES IN THE SMALLEST RURAL COUNTY?  ONCE THE GEOGRAPHICAL
UNIT FOR WHICH A REPRESENTATIVE IS TO BE CHOSEN IS DESIGNATED, ALL WHO
PARTICIPATE IN THE ELECTION ARE TO HAVE AN EQUAL VOTE - WHATEVER THEIR
RACE, WHATEVER THEIR SEX, WHATEVER THEIR OCCUPATION, WHATEVER THEIR
INCOME, AND WHEREVER THEIR HOME MAY BE IN THAT GEOGRAPHICAL UNIT.  THIS
IS REQUIRED BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE CONCEPT OF "WE THE PEOPLE" UNDER THE CONSTITUTION
VISUALIZES NO PREFERRED CLASS OF VOTERS BUT EQUALITY AMONG THOSE WHO
MEET THE BASIC QUALIFICATIONS.  THE IDEA THAT EVERY VOTER IS EQUAL TO
EVERY OTHER VOTER IN HIS STATE, WHEN HE CASTS HIS BALLOT IN FAVOR OF
ONE OF SEVERAL COMPETING CANDIDATES, UNDERLIES MANY OF OUR DECISIONS. 

THE COURT HAS CONSISTENTLY RECOGNIZED THAT ALL QUALIFIED VOTERS HAVE
A CONSTITUTIONALLY PROTECTED RIGHT "TO CAST THEIR BALLOTS AND HAVE THEM
COUNTED AT CONGRESSIONAL ELECTIONS."  UNITED STATES V. CLASSIC, 313
U.S. 299, 315; SEE EX PARTE YARBROUGH, 110 U.S. 651; WILEY V. SINKLER,
179 U.S. 58; SWAFFORD V. TEMPLETON, 185 U.S. 487.  EVERY VOTER'S VOTE
IS ENTITLED TO BE COUNTED ONCE.  IT MUST BE CORRECTLY COUNTED AND
REPORTED.  AS STATED IN UNITED STATES V. MOSLEY, 238 U.S. 383, 386,
"THE RIGHT TO HAVE ONE'S VOTE COUNTED" HAS THE SAME DIGNITY AS "THE
RIGHT TO PUT A BALLOT IN A BOX."  IT CAN BE PROTECTED FROM THE DILUTING
EFFECT OF ILLEGAL BALLOTS.  EX PARTE SIEBOLD, 100 U.S. 371; UNITED
STATES V. SAYLOR, 322 U.S. 385.  AND THESE RIGHTS MUST BE RECOGNIZED IN
ANY PRELIMINARY ELECTION THAT IN FACT DETERMINES THE TRUE WEIGHT A VOTE
WILL HAVE.  SEE UNITED STATES V. CLASSIC, SUPRA; SMITH V. ALLWRIGHT,
SUPRA.  THE CONCEPT OF POLITICAL EQUALITY IN THE VOTING BOOTH CONTAINED
IN THE FIFTEENTH AMENDMENT EXTENDS TO ALL PHASES OF STATE ELECTIONS,
SEE TERRY V. ADAMS, SUPRA; AND, AS PREVIOUSLY NOTED, THERE IS NO
INDICATION IN THE CONSTITUTION THAT HOMESITE OR OCCUPATION AFFORDS A
PERMISSIBLE BASIS FOR DISTINGUISHING BETWEEN QUALIFIED VOTERS WITHIN
THE STATE. 

THE ONLY WEIGHTING OF VOTES SANCTIONED BY THE CONSTITUTION CONCERNS
MATTERS OF REPRESENTATION, SUCH AS THE ALLOCATION OF SENATORS
IRRESPECTIVE OF POPULATION AND THE USE OF THE ELECTORAL COLLEGE IN THE
CHOICE OF A PRESIDENT.  YET WHEN SENATORS ARE CHOSEN, THE SEVENTEENTH
AMENDMENT STATES THE CHOICE MUST BE MADE "BY THE PEOPLE."  MINORS,
FELONS, AND OTHER CLASSES MAY BE EXCLUDED.  SEE LASSITER V. NORTHAMPTON
ELECTION BOARD, SUPRA, P. 51.  BUT ONCE THE CLASS OF VOTERS IS CHOSEN
AND THEIR QUALIFICATIONS SPECIFIED, WE SEE NO CONSTITUTIONAL WAY BY
WHICH EQUALITY OF VOTING POWER MAY BE EVADED.  AS WE STATED IN
GOMILLION V. LIGHTFOOT, SUPRA, P. 347: 

"WHEN A STATE EXERCISES POWER WHOLLY WITHIN THE DOMAIN OF STATE
INTEREST, IT IS INSULATED FROM FEDERAL JUDICIAL REVIEW.  BUT SUCH
INSULATION IS NOT CARRIED OVER WHEN STATE POWER IS USED AS AN
INSTRUMENT FOR CIRCUMVENTING A FEDERALLY PROTECTED RIGHT." 

THE CONCEPTION OF POLITICAL EQUALITY FROM THE DECLARATION OF
INDEPENDENCE, TO LINCOLN'S GETTYSBURG ADDRESS, TO THE FIFTEENTH,
SEVENTEENTH, AND NINETEENTH AMENDMENTS CAN MEAN ONLY ONE THING - ONE
PERSON, ONE VOTE. 

WHILE WE AGREE WITH THE DISTRICT COURT ON MOST PHASES OF THE CASE AND
THINK IT WAS RIGHT IN ENJOINING THE USE OF THE COUNTY UNIT SYSTEM
(FN12) IN TABULATING THE VOTES, WE VACATE ITS JUDGMENT AND REMAND THE
CASE SO THAT A DECREE IN CONFORMITY WITH OUR OPINION MAY BE ENTERED. 
IT IS SO ORDERED. 

FN1  GA. CONST., 1945, ART. III, SEC. III, PARA. I: 

"THE HOUSE OF REPRESENTATIVES SHALL CONSIST OF REPRESENTATIVES
APPORTIONED AMONG THE SEVERAL COUNTIES OF THE STATE AS FOLLOWS:  TO THE
EIGHT COUNTIES HAVING THE LARGEST POPULATION, THREE REPRESENTATIVES
EACH; TO THE THIRTY COUNTIES HAVING THE NEXT LARGEST POPULATION, TWO
REPRESENTATIVES EACH; AND TO THE REMAINING COUNTIES, ONE REPRESENTATIVE
EACH." 

FN2  GA. CODE ANN., SECS. 34-3212, 34-3213 (1936). 

FN3  GA. LAWS 1962, EX. SESS., NO. 1, P. 1217; GA. CODE ANN., SECS.
34-3212, 34-3213 (1962). 

FN4  THE ORDER, DATED APRIL 28, 1962, WAS NOT RESTRICTED TO THE PARTY
PRIMARY OF SEPTEMBER 12, 1962; NOR WAS THE RELIEF ASKED SO RESTRICTED. 

FN5  THE DISTRICT COURT IN ITS ORDER DEFINED THE TYPE OF COUNTY UNIT
SYSTEM WHICH VIOLATED THE EQUAL PROTECTION CLAUSE AS FOLLOWS: 

"A COUNTY UNIT SYSTEM FOR USE IN A PARTY PRIMARY IS INVIDIOUSLY
DISCRIMINATORY IF ANY UNIT HAS LESS THAN ITS SHARE TO THE NEAREST WHOLE
NUMBER PROPORTIONATE TO POPULATION, OR TO THE WHOLE OF THE VOTE IN A
RECENT PARTY GUBERNATORIAL PRIMARY, OR TO THE VOTE FOR ELECTORS OF THE
PARTY IN THE MOST RECENT PRESIDENTIAL ELECTION; PROVIDED, NO
DISCRIMINATION IS DEEMED TO BE INVIDIOUS UNDER SUCH SYSTEM IF THE
DISPARITY AGAINST ANY COUNTY IS NOT IN EXCESS OF THE DISPARITY THAT
EXISTS AS AGAINST ANY STATE IN THE MOST RECENT ELECTORAL COLLEGE
ALLOCATION, OR UNDER THE EQUAL PROPORTIONS FORMULA FOR REPRESENTATION
OF THE SEVERAL STATES IN THE CONGRESS OF THE UNITED STATES, AND,
PROVIDED PROVISION IS MADE FOR ALLOCATIONS TO BE ADJUSTED TO ACCORD
WITH CHANGES IN THE BASIS AT LEAST ONCE EACH TEN YEARS." 

FN6  SEE NOTE 5, SUPRA. 

FN7  CHIEF JUSTICE HOLT STATED OVER 250 YEARS AGO: 

"A RIGHT THAT A MAN HAS TO GIVE HIS VOTE AT THE ELECTION OF A PERSON
TO REPRESENT HIM IN PARLIAMENT, THERE TO CONCUR TO THE MAKING OF LAWS,
WHICH ARE TO BIND HIS LIBERTY AND PROPERTY, IS A MOST TRANSCENDENT
THING, AND OF AN HIGH NATURE  ...  .  IT IS A GREAT INJURY TO DEPRIVE
...  HIM OF IT  ...  . 

"  ...  IT WOULD LOOK VERY STRANGE, WHEN THE COMMONS OF ENGLAND ARE
SO FOND OF THEIR RIGHT OF SENDING REPRESENTATIVES TO PARLIAMENT, THAT
IT SHOULD BE IN THE POWER OF A SHERIFF, OR OTHER OFFICER, TO DEPRIVE
THEM OF THAT RIGHT, AND YET THAT THEY SHOULD HAVE NO REMEDY ...  .
THIS RIGHT OF VOTING IS A RIGHT IN THE PLAINTIFF BY THE COMMON LAW, AND
CONSEQUENTLY HE SHALL MAINTAIN AN ACTION FOR THE OBSTRUCTION OF IT  ...
. 

     *         *         *        *         * 

"BUT IN THE PRINCIPAL CASE MY BROTHER SAYS, WE CANNOT JUDGE OF THIS
MATTER, BECAUSE IT IS A PARLIAMENTARY THING.  O] BY ALL MEANS BE VERY
TENDER OF THAT.  BESIDES IT IS INTRICATE, AND THERE MAY BE CONTRARIETY
OF OPINIONS  ...  .  TO ALLOW THIS ACTION WILL MAKE PUBLICK OFFICERS
MORE CAREFUL TO OBSERVE THE CONSTITUTION OF CITIES AND BOROUGHS, AND
NOT TO BE SO PARTIAL AS THEY COMMONLY ARE IN ALL ELECTIONS, WHICH IS
INDEED A GREAT AND GROWING MISCHIEF, AND TENDS TO THE PREJUDICE OF THE
PEACE OF THE NATION.  BUT THEY SAY, THAT THIS IS A MATTER OUT OF OUR
JURISDICTION, AND WE OUGHT NOT TO INLARGE IT.  I AGREE WE OUGHT NOT TO
INCROACH OR INLARGE OUR JURISDICTION; ... BUT SURE WE MAY DETERMINE ON
A CHARTER GRANTED BY THE KING, OR ON A MATTER OF CUSTOM OR
PRESCRIPTION, WHEN IT COMES BEFORE US WITHOUT INCROACHING ON THE
PARLIAMENT.  AND IF IT BE A MATTER WITHIN OUR JURISDICTION, WE ARE
BOUND BY OUR OATHS TO JUDGE OF IT.  THIS IS A MATTER OF PROPERTY
DETERMINABLE BEFORE US.  WAS EVER SUCH A PETITION HEARD OF IN
PARLIAMENT, AS THAT A MAN WAS HINDERED OF GIVING HIS VOTE, AND PRAYING
THEM TO GIVE HIM REMEDY?  THE PARLIAMENT UNDOUBTEDLY WOULD SAY, TAKE
YOUR REMEDY AT LAW.  IT IS NOT LIKE THE CASE OF DETERMINING THE RIGHT
OF ELECTION BETWEEN THE CANDIDATES."  ASHBY V. WHITE, 2 LD. RAYM.  938,
953, 954, 956 (1702). 

FN8  THE ELECTORAL COLLEGE WAS DESIGNED BY MEN WHO DID NOT WANT THE
ELECTION OF THE PRESIDENT TO BE LEFT TO THE PEOPLE.  SEE S. DOC. NO.
97, SURVEY OF THE ELECTORAL COLLEGE IN THE POLITICAL SYSTEM OF THE
UNITED STATES, 79TH CONG., 1ST SESS.  "GEORGE WASHINGTON WAS ELECTED TO
THE OFFICE OF CHIEF MAGISTRATE OF THE NATION, BY 69 VOTES - THE TOTAL
NUMBER CAST BY THE ELECTORS.  AT THAT TIME, THREE STATES DID NOT VOTE. 
NEW YORK HAD NOT YET PASSED AN ELECTORAL LAW, AND NORTH CAROLINA AND
RHODE ISLAND HAD NOT YET RATIFIED THE CONSTITUTION.  THEREFORE, OF AN
ESTIMATED POPULATION OF 4,000,000 PEOPLE, A PRESIDENT WAS CHOSEN BY 69
VOTERS, WHO HAD NOT BEEN SELECTED BY THE PEOPLE, BUT APPOINTED BY STATE
LEGISLATURES, SAVE IN THE INSTANCES OF MARYLAND AND VIRGINIA."  ID., P.
4. 

HAMILTON EXPRESSED THE PHILOSOPHY BEHIND THE ELECTORAL COLLEGE IN THE
FEDERALIST NO. 68.  "THIS PROCESS OF ELECTION AFFORDS A MORAL
CERTAINTY, THAT THE OFFICE OF PRESIDENT, WILL SELDOM FALL TO THE LOT OF
ANY MAN, WHO IS NOT IN AN EMINENT DEGREE ENDOWED WITH THE REQUISITE
QUALIFICATIONS.  TALENTS FOR LOW INTRIGUE AND THE LITTLE ARTS OF
POPULARITY MAY ALONE SUFFICE TO ELEVATE A MAN TO THE FIRST HONORS IN A
SINGLE STATE; BUT IT WILL REQUIRE OTHER TALENTS AND A DIFFERENT KIND OF
MERIT TO ESTABLISH HIM IN THE ESTEEM AND CONFIDENCE OF THE WHOLE UNION,
OR OF SO CONSIDERABLE A PORTION OF IT AS WOULD BE NECESSARY TO MAKE HIM
A SUCCESSFUL CANDIDATE FOR THE DISTINGUISHED OFFICE OF PRESIDENT OF THE
UNITED STATES.  IT WILL NOT BE TOO STRONG TO SAY, THAT THERE WILL BE A
CONSTANT PROBABILITY OF SEEING THE STATION FILLED BY CHARACTERS PRE
EMINENT FOR ABILITY AND VIRTUE.  AND THIS WILL BE THOUGHT NO
INCONSIDERABLE RECOMMENDATION OF THE CONSTITUTION, BY THOSE, WHO ARE
ABLE TO ESTIMATE THE SHARE, WHICH THE EXECUTIVE IN EVERY GOVERNMENT
MUST NECESSARILY HAVE IN ITS GOOD OR ILL ADMINISTRATION." 

PASSAGE OF THE FIFTEENTH, SEVENTEENTH, AND NINETEENTH AMENDMENTS
SHOWS THAT THIS CONCEPTION OF POLITICAL EQUALITY BELONGS TO A BYGONE
DAY, AND SHOULD NOT BE CONSIDERED IN DETERMINING WHAT THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES IN STATEWIDE
ELECTIONS. 

FN9  SEE NOTE 5, SUPRA. 

FN10  WE DO NOT REACH HERE THE QUESTIONS THAT WOULD BE PRESENTED WERE
THE CONVENTION SYSTEM USED FOR NOMINATING CANDIDATES IN LIEU OF THE
PRIMARY SYSTEM. 

FN11  SEE NOTE 8, SUPRA. 

FN12  THE COUNTY UNIT SYSTEM, EVEN IN ITS AMENDED FORM (SEE NOTE 3,
SUPRA) WOULD ALLOW THE CANDIDATE WINNING THE POPULAR VOTE IN THE COUNTY
TO HAVE THE ENTIRE UNIT VOTE OF THAT COUNTY.  HENCE THE WEIGHTING OF
VOTES WOULD CONTINUE, EVEN IF UNIT VOTES WERE ALLOCATED STRICTLY IN
PROPORTION TO POPULATION.  THUS IF A CANDIDATE WON 6,000 OF 10,000
VOTES IN A PARTICULAR COUNTY, HE WOULD GET THE ENTIRE UNIT VOTE, THE
4,000 OTHER VOTES FOR A DIFFERENT CANDIDATE BEING WORTH NOTHING AND
BEING COUNTED ONLY FOR THE PURPOSE OF BEING DISCARDED. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE CLARK JOINS, CONCURRING. 

IN JOINING THE OPINION AND JUDGMENT OF THE COURT, I EMPHASIZE WHAT -
BUT FOR MY BROTHER HARLAN'S DISSENT - I SHOULD HAVE THOUGHT WOULD BE
APPARENT TO ALL WHO READ THE COURT'S OPINION.  THIS CASE DOES NOT
INVOLVE THE VALIDITY OF A STATE'S APPORTIONMENT OF GEOGRAPHIC
CONSTITUENCIES FROM WHICH REPRESENTATIVES TO THE STATE'S LEGISLATIVE
ASSEMBLY ARE CHOSEN, NOR ANY OF THE PROBLEMS UNDER THE EQUAL PROTECTION
CLAUSE WHICH SUCH LITIGATION WOULD PRESENT.  WE DO NOT DEAL HERE WITH
"THE BASIC GROUND RULES IMPLEMENTING BAKER V. CARR."  THIS CASE, ON THE
CONTRARY, INVOLVES STATEWIDE ELECTIONS OF A UNITED STATES SENATOR AND
OF STATE EXECUTIVE AND JUDICIAL OFFICERS RESPONSIBLE TO A STATEWIDE
CONSTITUENCY.  WITHIN A GIVEN CONSTITUENCY, THERE CAN BE ROOM FOR BUT A
SINGLE CONSTITUTIONAL RULE - ONE VOTER, ONE VOTE.  UNITED STATES V.
CLASSIC, 313 U.S. 299. 

MR. JUSTICE HARLAN, DISSENTING. 

WHEN BAKER V. CARR, 369 U.S. 186, WAS ARGUED AT THE LAST TERM WE WERE
ASSURED THAT IF THIS COURT WOULD ONLY REMOVE THE ROADBLOCKS OF
COLEGROVE V. GREEN, 328 U.S. 549, AND ITS PREDECESSORS TO JUDICIAL
REVIEW IN "ELECTORAL" CASES, THIS COURT IN ALL LIKELIHOOD WOULD NEVER
HAVE TO GET DEEPER INTO SUCH MATTERS.  STATE LEGISLATURES, IT WAS
PREDICTED, WOULD BE PRODDED INTO TAKING SATISFACTORY ACTION BY THE MERE
PROSPECT OF LEGAL PROCEEDINGS. 

THESE PREDICTIONS HAVE NOT PROVED TRUE.  AS OF NOVEMBER 1, 1962, THE
APPORTIONMENT OF SEATS IN AT LEAST 30 STATE LEGISLATURES HAD BEEN
CHALLENGED IN STATE AND FEDERAL COURTS, (FN1) AND, BESIDES THIS ONE, 10
ELECTORAL CASES OF ONE KIND OR ANOTHER ARE ALREADY ON THIS COURT'S
DOCKET.  (FN2)  THE PRESENT CASE IS THE FIRST OF THESE TO REACH PLENARY
CONSIDERATION. 

PRELIMINARILY, IT IS SYMPTOMATIC OF THE SWIFT PACE OF CURRENT
CONSTITUTIONAL ADJUDICATION THAT THE MAJORITY OPINION SHOULD HAVE
FAILED TO MENTION ANY OF THE FOUR OCCASIONS ON WHICH GEORGIA'S COUNTY
UNIT SYSTEM HAS PREVIOUSLY BEEN UNSUCCESSFULLY CHALLENGED IN THIS
COURT.  COOK V. FORTSON, DECIDED WITH TURMAN V. DUCKWORTH, 329 U.S. 675
(1946); SOUTH V. PETERS, 339 U.S. 276 (1950); COX V. PETERS, 342 U.S.
936 (1952); AND HARTSFIELD V. SLOAN, 357 U.S. 916 (1958). 

IT IS TRUE THAT NONE OF THESE CASES REACHED THE STAGE OF FULL PLENARY
CONSIDERATION BUT, IN LIGHT OF THE JUDICIAL HISTORY RECOUNTED BY MR.
JUSTICE FRANKFURTER IN HIS DISSENTING OPINION IN BAKER V. CARR, SUPRA,
AT 266, 278 ET SEQ., ONLY THE GUILELESS COULD FAIL TO RECOGNIZE THAT
THE PREVAILING VIEW THEN WAS THAT THE VALIDITY OF THIS COUNTY UNIT
SYSTEM WAS NOT OPEN TO SERIOUS CONSTITUTIONAL DOUBT.  (FN3)  THIS
ESTIMATE OF THE EARLIER SITUATION IS HIGHLIGHTED BY THE DISSENTING
OPINION OF JUSTICES BLACK AND DOUGLAS IN SOUTH V. PETERS, SUPRA, AT
277, IN WHICH THEY UNSUCCESSFULLY ESPOUSED THE VERY VIEWS WHICH NOW
BECOME THE LAW.  PRESUMABLY MY TWO BROTHERS ALSO REFLECTED THESE SAME
VIEWS IN NOTING THEIR DISSENTS IN THE COX AND HARTSFIELD CASES.  SEE
ALSO COOK V. FORTSON, ETC., SUPRA, IN WHICH MR. JUSTICE BLACK ALSO
NOTED HIS DISSENT.    BUT EVEN IF THE COURT'S PRESENT SILENCE ABOUT
THESE CASES CAN BE DEEMED JUSTIFIED ON THE PREMISE THAT THEIR SUMMARY
DISPOSITION CAN BE SATISFACTORILY ACCOUNTED FOR ON GROUNDS NOT
INVOLVING THE MERITS, I CONSIDER TODAY'S DECISION NOT SUPPORTABLE. 

IN THE CONTEXT OF A NOMINATING PRIMARY RESPECTING CANDIDATES FOR
STATEWIDE OFFICE, THE COURT CONSTRUES THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT AS REQUIRING THAT EACH PERSON'S VOTE BE GIVEN
EQUAL WEIGHT.  THE MAJORITY SAYS:  "THE CONCEPTION OF POLITICAL
EQUALITY FROM THE DECLARATION OF INDEPENDENCE, TO LINCOLN'S GETTYSBURG
ADDRESS, TO THE FIFTEENTH, SEVENTEENTH, AND NINETEENTH AMENDMENTS CAN
MEAN ONLY ONE THING - ONE PERSON, ONE VOTE."  ANTE, P. 381.  THE COURT
THEN STRIKES DOWN GEORGIA'S COUNTY UNIT SYSTEM AS SUCH, A HOLDING WHICH
THE DISTRICT COURT DECLINED TO MAKE.  203 F. SUPP., AT 170. 

THE COURT'S HOLDING SURELY FLIES IN THE FACE OF HISTORY.  FOR, AS
IMPRESSIVELY SHOWN BY THE OPINION OF FRANKFURTER, J., IN BAKER V. CARR
(369 U.S., AT 301-324), "ONE PERSON, ONE VOTE" HAS NEVER BEEN THE
UNIVERSALLY ACCEPTED POLITICAL PHILOSOPHY IN ENGLAND, THE AMERICAN
COLONIES, OR IN THE UNITED STATES.  THE SIGNIFICANCE OF THIS HISTORICAL
FACT SEEMS INDEED TO BE RECOGNIZED BY THE COURT, FOR IT IMPLIES THAT
ITS NEW-FOUND FORMULA MIGHT NOT OBTAIN IN A CASE INVOLVING THE
APPORTIONMENT OF SEATS IN THE "STATE LEGISLATURE OR FOR THE FEDERAL
HOUSE OF REPRESENTATIVES."  ANTE, P. 376. 

BUT, INDEPENDENTLY OF OTHER REASONS THAT WILL BE DISCUSSED IN A
MOMENT, ANY SUCH DISTINCTION FINDS PERSUASIVE REFUTATION IN THE FEDERAL
ELECTORAL COLLEGE WHEREBY THE PRESIDENT OF THE UNITED STATES IS CHOSEN
ON PRINCIPLES WHOLLY OPPOSED TO THOSE NOW HELD CONSTITUTIONALLY
REQUIRED IN THE ELECTORAL PROCESS FOR STATEWIDE OFFICE.  ONE NEED NOT
CLOSE HIS EYES TO THE CIRCUMSTANCE THAT THE ELECTORAL COLLEGE WAS BORN
IN COMPROMISE, NOR TAKE SIDES IN THE VARIOUS ATTEMPTS THAT HAVE BEEN
MADE TO CHANGE THE SYSTEM, (FN4) IN ORDER TO AGREE WITH THE COURT BELOW
THAT IT "COULD HARDLY BE SAID THAT SUCH A SYSTEM USED IN A STATE AMONG
ITS COUNTIES, ASSUMING RATIONALITY AND ABSENCE OF ARBITRARINESS IN END
RESULT, COULD BE TERMED INVIDIOUS."  203 F. SUPP., AT 169. 

INDEED THIS COURT ITSELF SOME 15 YEARS AGO REJECTED, IN A COMPARABLE
SITUATION, THE NOTION OF POLITICAL EQUALITY NOW PRONOUNCED.  IN
MACDOUGALL V. GREEN, 335 U.S. 281, CHALLENGE WAS MADE TO AN ILLINOIS
LAW REQUIRING THAT NOMINATING PETITIONS OF A NEW POLITICAL PARTY BE
SIGNED BY AT LEAST 25,000 VOTERS, INCLUDING A MINIMUM OF 200 VOTERS
FROM EACH OF AT LEAST 50 OF THE 102 COUNTIES IN THE STATE.  THE CLAIM
WAS THAT THE "200 REQUIREMENT" MADE IT POSSIBLE FOR "THE VOTERS OF THE
LESS POPULOUS COUNTIES  ...  TO BLOCK THE NOMINATION OF CANDIDATES
WHOSE SUPPORT IS CONFINED TO GEOGRAPHICALLY LIMITED AREAS."  ID., AT
283.  IN DISALLOWING THIS CLAIM, THE COURT SAID (ID., AT 283-284): 

"TO ASSUME THAT POLITICAL POWER IS A FUNCTION EXCLUSIVELY OF NUMBERS
IS TO DISREGARD THE PRACTICALITIES OF GOVERNMENT.  THUS, THE
CONSTITUTION PROTECTS THE INTERESTS OF THE SMALLER AGAINST THE GREATER
BY GIVING IN THE SENATE ENTIRELY UNEQUAL REPRESENTATION TO
POPULATIONS.  IT WOULD BE STRANGE INDEED, AND DOCTRINAIRE, FOR THIS
COURT, APPLYING SUCH BROAD CONSTITUTIONAL CONCEPTS AS DUE PROCESS AND
EQUAL PROTECTION OF THE LAWS, TO DENY A STATE THE POWER TO ASSURE A
PROPER DIFFUSION OF POLITICAL INITIATIVE AS BETWEEN ITS THINLY
POPULATED COUNTIES AND THOSE HAVING CONCENTRATED MASSES, IN VIEW OF THE
FACT THAT THE LATTER HAVE PRACTICAL OPPORTUNITIES FOR EXERTING THEIR
POLITICAL WEIGHT AT THE POLLS NOT AVAILABLE TO THE FORMER.  THE
CONSTITUTION - A PRACTICAL INSTRUMENT OF GOVERNMENT - MAKES NO SUCH
DEMANDS ON THE STATES." 

CERTAINLY NO SUPPORT FOR THIS EQUAL PROTECTION DOCTRINE CAN BE DRAWN
FROM THE FIFTEENTH, SEVENTEENTH, OR NINETEENTH AMENDMENT.  THE
FIFTEENTH AMENDMENT SIMPLY ASSURES THAT THE RIGHT TO VOTE SHALL NOT BE
IMPAIRED "ON ACCOUNT OF RACE, COLOR, OR PREVIOUS CONDITION OF
SERVITUDE."  THE SEVENTEENTH AMENDMENT PROVIDES THAT SENATORS SHALL BE
"ELECTED BY THE PEOPLE," WITH NO INDICATION THAT ALL PEOPLE MUST BE
ACCORDED A VOTE OF EQUAL WEIGHT.  THE NINETEENTH AMENDMENT MERELY GIVES
THE VOTE TO WOMEN.  AND IT IS HARD TO TAKE SERIOUSLY THE ARGUMENT THAT
"DILUTION" OF A VOTE IN CONSEQUENCE OF A LEGISLATIVELY SANCTIONED
ELECTORAL SYSTEM CAN, WITHOUT MORE, BE ANALOGIZED TO AN IMPAIRMENT OF
THE POLITICAL FRANCHISE BY BALLOT BOX STUFFING OR OTHER CRIMINAL
ACTIVITY, E.G., UNITED STATES V. MOSLEY, 238 U.S. 383, UNITED STATES V.
CLASSIC, 313 U.S. 299, UNITED STATES V. SAYLOR, 322 U.S. 385, OR TO THE
DISENFRANCHISEMENT OF QUALIFIED VOTERS ON PURELY RACIAL GROUNDS,
GOMILLION V. LIGHTFOOT, 364 U.S. 339. 

A VIOLATION OF THE EQUAL PROTECTION CLAUSE THUS CANNOT BE FOUND IN
THE MERE CIRCUMSTANCE THAT THE GEORGIA COUNTY UNIT SYSTEM RESULTS IN
DISPROPORTIONATE VOTE WEIGHTING.  IT "IS IMPORTANT FOR THIS COURT TO
AVOID EXTRACTING FROM THE VERY GENERAL LANGUAGE OF THE FOURTEENTH
AMENDMENT A SYSTEM OF DELUSIVE EXACTNESS  ...  ."  LOUISVILLE &
NASHVILLE R. CO. V. BARBER ASPHALT CO., 197 U.S. 430, 434 (HOLMES,
J.).  WHAT THEN REMAINS OF THE EQUAL PROTECTION CLAIM IN THIS CASE? 

AT THE CORE OF GEORGIA'S DIFFUSION OF VOTING STRENGTH WHICH FAVORS
THE SMALL AS AGAINST THE LARGE COUNTIES IS THE URBAN-RURAL PROBLEM, SO
FAMILIAR IN THE AMERICAN POLITICAL SCENE.  IN MY DISSENT IN BAKER V.
CARR, 369 U.S., AT 336, I EXPRESSED THE VIEW THAT A STATE MIGHT
RATIONALLY CONCLUDE THAT ITS GENERAL WELFARE WAS BEST SERVED BY
APPORTIONING MORE SEATS IN THE LEGISLATURE TO AGRICULTURAL COMMUNITIES
THAN TO URBAN CENTERS, LEST THE LEGITIMATE INTERESTS OF THE FORMER BE
SUBMERGED IN THE STRONGER ELECTORAL VOICE OF THE LATTER.  IN MY
OPINION, RECOGNITION OF THE SAME FACTOR CANNOT BE DEEMED IRRATIONAL IN
THE PRESENT SITUATION, EVEN THOUGH ALL OF THE CONSIDERATIONS SUPPORTING
ITS USE IN A LEGISLATIVE APPORTIONMENT CASE ARE NOT PRESENT HERE. 

GIVEN THE UNDENIABLY POWERFUL INFLUENCE OF A STATE GOVERNOR ON LAW
AND POLICY MAKING, (FN5) I DO NOT SEE HOW IT CAN BE DEEMED IRRATIONAL
FOR A STATE TO CONCLUDE THAT A CANDIDATE FOR SUCH OFFICE SHOULD NOT BE
ONE WHOSE CHOICE LIES WITH THE NUMERICALLY SUPERIOR ELECTORAL STRENGTH
OF URBAN VOTERS.  BY LIKE TOKEN, I CANNOT CONSIDER IT IRRATIONAL FOR
GEORGIA TO APPLY ITS COUNTY UNIT SYSTEM TO THE SELECTION OF CANDIDATES
FOR OTHER STATEWIDE OFFICES (FN6) IN ORDER TO ASSURE AGAINST A
PREDOMINANTLY "CITY POINT OF VIEW" IN THE ADMINISTRATION OF THE STATE'S
AFFAIRS. 

ON THE EXISTING RECORD, THIS LEAVES THE QUESTION OF "IRRATIONALITY"
IN THIS CASE TO BE JUDGED ON THE BASIS OF PURE ARITHMETIC.  THE COURT
BY ITS "ONE PERSON, ONE VOTE" THEORY IN EFFECT AVOIDS FACING UP TO THAT
PROBLEM, BUT THE DISTRICT COURT DID FACE IT, HOLDING THAT THE
DISPARITIES IN VOTING STRENGTH BETWEEN THE LARGEST COUNTY (FULTON) AND
THE FOUR SMALLEST COUNTIES (WEBSTER, GLASCOCK, QUITMAN, AND ECHOLS),
RUNNING RESPECTIVELY 8 TO 1, 10 TO 1, 11 TO 1, AND 14 TO 1 IN FAVOR OF
THE LATTER, (FN7) WERE INVIDIOUSLY DISCRIMINATORY.  BUT IT DID NOT TELL
US WHY.  I DO NOT UNDERSTAND HOW, ON THE BASIS OF THESE MERE NUMBERS,
UNILLUMINATED AS THEY ARE BY ANY OF THE COMPLEX AND SUBTLE POLITICAL
FACTORS INVOLVED, A COURT OF LAW CAN SAY, EXCEPT BY JUDICIAL FIAT, THAT
THESE DISPARITIES ARE IN THEMSELVES CONSTITUTIONALLY INVIDIOUS. 

THE DISPROPORTIONS IN THE GEORGIA COUNTY UNIT SYSTEM ARE INDEED NOT
GREATLY OUT OF LINE WITH THOSE EXISTING UNDER THE ELECTORAL COLLEGE
COUNT FOR THE PRESIDENCY.  THE DISPARITY IN POPULATION PER ELECTORAL
COLLEGE VOTE BETWEEN NEW YORK (THE LARGEST STATE IN THE 1960 CENSUS)
AND ALASKA (THE SMALLEST) WAS ABOUT 5 TO 1.  (FN8)  THERE ARE ONLY 15
GEORGIA COUNTIES, OUT OF A TOTAL OF 159, WHICH HAVE A GREATER DISPARITY
PER UNIT VOTE, AND OF THESE 15 COUNTIES 4 HAVE DISPARITY OF LESS THAN 6
TO 1.  IT IS THUS APPARENT THAT A SLIGHT MODIFICATION OF THE GEORGIA
PLAN COULD BRING IT WITHIN THE TOLERANCE PERMITTED IN THE FEDERAL
SCHEME. 

IT WAS OF COURSE IMPONDERABLES LIKE THESE THAT LAY AT THE ROOT OF THE
COURT'S STEADFAST PRE-BAKER V. CARR REFUSAL "TO ENTER THE POLITICAL
THICKET."  COLEGROVE V. GREEN, SUPRA, AT 556.  HAVING TURNED ITS BACK
ON THIS WISE CHAPTER IN ITS HISTORY, THE COURT, IN MY VIEW, CAN NO
LONGER ESCAPE THE NECESSITY OF COMING TO GRIPS WITH THE THORNY PROBLEMS
IT SO STUDIOUSLY STROVE TO AVOID IN BAKER V. CARR (SEE CONCURRING
OPINION OF STEWART, J., 369 U.S., AT 265, AND DISSENTING OPINION OF
HARLAN, J., ID., AT 339) AND IN TWO SUBSEQUENT CASES, SCHOLLE V. HARE,
369 U.S. 429, 430 (CONCURRING OPINION OF CLARK, J., AND STEWART, J.),
430-435 (DISSENTING OPINION OF HARLAN, J.); W.M.C.A., INC., V. SIMON,
370 U.S. 190, 191-194 (DISSENTING OPINION OF HARLAN, J.).  TO REGARD
THIS CASE AS BEING OUTSIDE THE GENERAL STREAM OF ELECTORAL CASES
BECAUSE ONLY TWO OTHER STATES, MARYLAND AND MISSISSIPPI, HAVE COUNTY
UNIT SYSTEMS, IS TO HIDE ONE'S HEAD IN THE SAND. 

WHAT THEN SHOULD BE THE TEST OF "RATIONALITY" IN THIS JUDICIALLY
UNFAMILIAR FIELD?  MY BROTHER CLARK HAS PERHAPS GIVEN US A CLUE IN THE
LEGISLATIVE INACTIVITY - ABSENCE OF ANY OTHER REMEDY - CRAZY QUILT
APPROACH CONTAINED IN HIS CONCURRING OPINION IN BAKER V. CARR, SUPRA,
AT 253-262.  BUT I THINK A FORMULATION OF THE BASIC GROUND RULES IN
THIS UNTROD AREA OF JUDICIAL COMPETENCE SHOULD AWAIT A FULLY DEVELOPED
RECORD.  THIS CASE IS HERE AT AN INTERLOCUTORY STAGE.  THE TEMPORARY
INJUNCTION BEFORE US ISSUED UPON A RECORD CONSISTING ONLY OF THE
PLEADINGS, ANSWERS TO INTERROGATORIES, AFFIDAVITS, STATISTICAL
MATERIAL, AND WHAT THE LOWER COURT DESCRIBED AS A "LIBERAL USE OF OUR
RIGHT TO TAKE JUDICIAL NOTICE OF MATTERS OF COMMON KNOWLEDGE AND PUBLIC
CONCERN."  203 F. SUPP., AT 160, N. 1.  NO FULL-DRESS EXPLORATION OF
ANY OF THE MANY INTRICATE QUESTIONS INVOLVED IN ESTABLISHING CRITERIA
FOR JUDGING "RATIONALITY" TOOK PLACE, THE OPINION AND DECREE BELOW
ISSUED THE DAY FOLLOWING THE HEARING, AND THE DISTRICT COURT OBSERVED
THAT, WHILE ITS STANDARDS OF EQUAL PROTECTION (WHICH THIS COURT NOW
PUTS ASIDE) "MAY APPEAR DOCTRINAIRE TO SOME EXTENT," IT WAS CONSTRAINED
TO ACT AS IT DID BECAUSE OF THE THEN (BUT NO LONGER EXISTING) (FN9)
URGENCY OF THE SITUATION.  203 F. SUPP., AT 170. 

SURELY, IF THE COURT'S "ONE PERSON, ONE VOTE" IDEOLOGY IS
CONSTITUTIONALLY UNTENABLE, AS I THINK IT CLEARLY IS, THE BASIC GROUND
RULES IMPLEMENTING BAKER V. CARR SHOULD AWAIT THE TRIAL OF THIS OR SOME
OTHER CASE IN WHICH WE HAVE BEFORE US A FULLY DEVELOPED RECORD.  ONLY
THEN CAN WE KNOW WHAT WE ARE DOING.  CF. WHITE MOTOR CO. V. UNITED
STATES, ANTE, P. 253.  A MATTER WHICH SO PROFOUNDLY TOUCHES THE
BARRIERS BETWEEN FEDERAL JUDICIAL AND STATE LEGISLATIVE AUTHORITY
DEMANDS NOTHING LESS. 

I WOULD VACATE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE CASE
FOR TRIAL. 

FN1  ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, REPORT ON
APPORTIONMENT OF STATE LEGISLATURES, DECEMBER 1962, P. A-21.  I HAVE
BEEN INFORMED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS
THAT, BY DECEMBER 31, 1962, OVER 25 SUITS HAD BEEN FILED IN THE FEDERAL
COURTS ALONE. 

FN2  NO. 460, WMCA, INC., V. SIMON; NO. 507, WESBERRY V. SANDERS; NO.
508, REYNOLDS V. SIMS; NO. 517, BEADLE V. SCHOLLE; NO. 540, VANN V.
FRINK; NO. 554, MARYLAND COMM.  FOR FAIR REPRESENTATION V. TAWES; NO.
610, MCCONNELL V. FRINK; NO. 688, PRICE V. MOSS; NO. 689, OKLAHOMA FARM
BUREAU V. MOSS; NO. 797, DAVIS V. MANN. 

FN3  ALTHOUGH THE SOLICITOR GENERAL, AS AMICUS, SUGGESTS THAT THE
COURT'S ACTION IN SOUTH V. PETERS RESTED SIMPLY ON A REFUSAL TO
EXERCISE FEDERAL EQUITY POWER, IT SHOULD BE NOTED THAT THE FIRST CASE
CITED IN THE COURT'S PER CURIAM AFFIRMANCE IS MACDOUGALL V. GREEN, 335
U.S. 281.  SEE INFRA, P. 385. 

FN4  SEE WECHSLER, PRESIDENTIAL ELECTIONS AND THE CONSTITUTION:  A
COMMENT ON PROPOSED AMENDMENT, 35 A.B.A.J. 181 (1949). 

FN5  THE GEORGIA CONSTITUTION VESTS IN THE GOVERNOR THE STATE'S
"EXECUTIVE POWER," AND AUTHORIZES HIM TO RECOMMEND LEGISLATION, MAKE
REPORTS TO AND CALL EXTRAORDINARY SESSIONS OF THE STATE GENERAL
ASSEMBLY, ISSUE WRITS OF ELECTION TO FILL VACANCIES IN THE GENERAL
ASSEMBLY, VETO OR APPROVE BILLS AND RESOLUTIONS, AND REQUIRE REPORTS
FROM THE VARIOUS DEPARTEMENTS OF THE STATE.  GA. CONST. OF 1945, ART.
V, SECS. 2-3001 TO 2-3017.  ALSO, BY STATUTE, PAYMENTS CANNOT BE MADE
FROM THE STATE TREASURY WITHOUT A WARRANT ISSUED BY THE GOVERNOR, GA.
CODE ANN., SEC. 40-204, AND IN THE EVENT OF A PUBLIC EMERGENCY THE
GOVERNOR IS AUTHORIZED TO PROMULGATE AND ENFORCE SUCH RULES AND
REGULATIONS AS ARE NECESSARY TO PREVENT, CONTROL, OR QUELL VIOLENCE,
THREATENED OR ACTUAL, GA. CODE ANN., SEC. 40-213. 

FN6  THOSE INVOLVED IN THIS CASE, BESIDES GOVERNOR, ARE UNITED STATES
SENATOR, LIEUTENANT GOVERNOR, SECRETARY OF STATE, JUSTICE OF THE
SUPREME COURT, JUDGE OF THE COURT OF APPEALS, ATTORNEY GENERAL,
COMPTROLLER GENERAL, COMMISSIONER OF LABOR, AND TREASURER.  THE
GOVERNOR HAS A GENERAL POWER TO FILL VACANCIES IN SUCH OFFICES, UNLESS
OTHERWISE PROVIDED BY LAW.  GA. CONST. OF 1945, ART. V, SEC. 2-3013. 

FN7                            POPULATION    RATIO TO

                                    PER    FULTON 

COUNTY      POPULATION  UNIT VOTE  UNIT VOTE COUNTY 

FULTON       556,326       40        13,908 

DEKALB       256,782       20        12,839 

CHATHAM      188,299       16        11,760 

MUSCOGEE     158,623       14    11,330 

WEBSTER        3,247        2         1,623  8 TO 1 

GLASCOCK       2,672        2         1,336      10 TO 1 

QUITMAN        2,432        2         1,216      11 TO 1 

ECHOLS         1,876        2           938      14 TO 1 

FN8  STATISTICAL ABSTRACT OF THE UNITED STATES 10, 366 (1962). 

FN9  FOLLOWING THE DISTRICT COURT'S INJUNCTION, A STATEWIDE DIRECT
PRIMARY WAS HELD. 
..END :









FAY V. NOIA 372 U.S. 391 


NO. 84.  ARGUED JANUARY 7-8, 1963.  - DECIDED MARCH 18, 1963.  - 300
F.2D 345, AFFIRMED ON OTHER GROUNDS. 


IN 1942, RESPONDENT AND TWO CODEFENDANTS WERE CONVICTED IN A NEW YORK
STATE COURT OF MURDER COMMITTED DURING A ROBBERY, AND EACH WAS
SENTENCED TO LIFE IMPRISONMENT.  THE SOLE EVIDENCE AGAINST EACH WAS HIS
CONFESSION.  RESPONDENT DID NOT APPEAL; BUT HIS CODEFENDANTS DID. 
THEIR APPEALS WERE UNSUCCESSFUL; BUT SUBSEQUENT PROCEEDINGS RESULTED IN
THEIR RELEASE ON THE GROUND THAT THEIR CONFESSIONS WERE COERCED AND
THEIR CONVICTIONS VIOLATED THE FOURTEENTH AMENDMENT.  THEREAFTER,
RESPONDENT APPLIED TO THE STATE COURT FOR A CORAM NOBIS REVIEW OF HIS
CONVICTION; BUT THIS WAS DENIED ULTIMATELY BECAUSE OF HIS FAILURE TO
APPEAL.  HE THEN APPLIED TO A FEDERAL DISTRICT COURT FOR A WRIT OF
HABEAS CORPUS, WHICH WAS DENIED ON THE GROUND THAT HIS FAILURE TO
APPEAL WAS A FAILURE TO EXHAUST AVAILABLE STATE REMEDIES, WITHIN THE
MEANING OF 28 U.S.C. SEC. 2254, ALTHOUGH IT WAS CONCEDED THAT
RESPONDENT'S CONFESSION HAD BEEN COERCED.  THE COURT OF APPEALS
REVERSED.  HELD:  THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED ON
OTHER GROUNDS.  PP. 394-441. 

1.  UNDER THE CONDITIONS OF MODERN SOCIETY, RESPONDENT'S IMPRISONMENT
UNDER A CONVICTION PROCURED BY A COERCED CONFESSION, WHICH THE STATE
CONCEDES WAS OBTAINED IN VIOLATION OF THE FOURTEENTH AMENDMENT, IS
INTOLERABLE; AND HABEAS CORPUS IS THE APPROPRIATE REMEDY.  PP. 399
415. 

(A)  THE BASIC PRINCIPLE OF THE GREAT WRIT OF HABEAS CORPUS IS THAT,
IN A CIVILIZED SOCIETY, GOVERNMENT MUST ALWAYS BE ACCOUNTABLE TO THE
JUDICIARY FOR A MAN'S IMPRISONMENT: IF THE IMPRISONMENT CANNOT BE SHOWN
TO CONFORM WITH THE FUNDAMENTAL REQUIREMENTS OF LAW, THE INDIVIDUAL IS
ENTITLED TO HIS IMMEDIATE RELEASE.  PP. 399-402. 

(B)  A REVIEW OF THE HISTORY OF HABEAS CORPUS SHOWS THAT, WHEN THE
SUSPENSION CLAUSE ART. I, SEC. 9, CL. 2, WAS WRITTEN INTO THE FEDERAL
CONSTITUTION AND THE FIRST JUDICIARY ACT WAS PASSED CONFERRING HABEAS
CORPUS JURISDICTION UPON THE FEDERAL JUDICIARY, THERE WAS RESPECTABLE
COMMON-LAW AUTHORITY FOR THE PROPOSITION THAT HABEAS CORPUS WAS
AVAILABLE TO REMEDY ANY KIND OF GOVERNMENTAL RESTRAINT CONTRARY TO THE
FUNDAMENTAL LAW; AND IT WOULD APPEAR THAT THE CONSTITUTION INVITES, IF
IT DOES NOT COMPEL, A GENEROUS CONSTRUCTION OF THE POWER OF THE FEDERAL
COURTS TO DISPENSE THE WRIT CONFORMABLY WITH COMMON-LAW PRACTICE.  PP.
402-406. 

(C)  CHANGED CONCEPTIONS OF THE KIND OF CRIMINAL PROCEEDINGS SO
FUNDAMENTALLY DEFECTIVE AS TO MAKE IMPRISONMENT UNDER THEM
CONSTITUTIONALLY INTOLERABLE SHOULD NOT BE ALLOWED TO OBSCURE THE BASIC
CONTINUITY IN THE CONCEPTION OF THE WRIT AS A REMEDY FOR SUCH
IMPRISONMENTS.  PP. 406-415. 

2.  THE EXIGENCIES OF FEDERALISM DO NOT COMPEL A DIFFERENT RESULT. 
PP. 415-426. 

(A)  THE RULE THAT A STATE PRISONER MUST EXHAUST HIS REMEDIES IN THE
STATE COURTS BEFORE APPLYING TO A FEDERAL COURT FOR A WRIT OF HABEAS
CORPUS, WHICH EVOLVED AS A MATTER OF ACCOMMODATION BETWEEN STATE AND
FEDERAL COURTS AND IS NOW CODIFIED IN 28 U.S.C. SEC.  2254, IS A
DOCTRINE OF COMITY BETWEEN COURTS.  IT IS NOT ONE DEFINING POWER BUT
ONE WHICH RELATES TO THE APPROPRIATE EXERCISE OF POWER.  PP. 415-420. 

(B)  SAVE IN ONE DECISION, WHICH HAS SINCE BEEN REPUDIATED, THIS
COURT HAS CONSISTENTLY HELD THAT, AFTER THE STATE COURTS HAD DECIDED
THE FEDERAL QUESTION ON THE MERITS AGAINST THE APPLICANT, HE COULD
APPLY TO THE FEDERAL COURTS FOR HABEAS CORPUS AND THERE RELITIGATE THE
QUESTION.  PP. 420-422. 

(C)  EVEN IF THE STATE COURT ADJUDICATION TURNS WHOLLY ON PRIMARY,
HISTORICAL FACTS, A FEDERAL DISTRICT COURT HAS A BROAD POWER ON HABEAS
CORPUS TO HOLD AN EVIDENTIARY HEARING AND DETERMINE THE FACTS.  P.
422. 

(D)  CONVENTIONAL NOTIONS OF FINALITY IN CRIMINAL LITIGATION CANNOT
BE PERMITTED TO DEFEAT THE MANIFEST FEDERAL POLICY THAT FEDERAL
CONSTITUTIONAL RIGHTS OF PERSONAL LIBERTY SHALL NOT BE DENIED WITHOUT
THE FULLEST OPPORTUNITY FOR PLENARY FEDERAL JUDICIAL REVIEW.  PP. 422
424. 

(E)  BY RELYING ON A RULE OF DISCRETION, AVOWEDLY FLEXIBLE AND ALWAYS
YIELDING TO "EXCEPTIONAL CIRCUMSTANCES," THIS COURT HAS REFUSED TO
CONCEDE JURISDICTIONAL SIGNIFICANCE TO ABORTIVE STATE-COURT
PROCEEDINGS.  PP. 424-426. 

3.  FEDERAL COURTS HAVE POWER UNDER THE FEDERAL HABEAS CORPUS
STATUTE, 28 U.S.C.  SECS. 2241 ET SEQ., TO GRANT RELIEF DESPITE THE
APPLICANT'S FAILURE TO HAVE PURSUED A STATE REMEDY NOT AVAILABLE TO HIM
AT THE TIME HE APPLIES.  THE DOCTRINE UNDER WHICH STATE PROCEDURAL
DEFAULTS ARE HELD TO CONSTITUTE AN ADEQUATE AND INDEPENDENT STATE LAW
GROUND BARRING DIRECT SUPREME COURT REVIEW IS NOT TO BE EXTENDED TO
LIMIT THE POWER GRANTED THE FEDERAL COURTS UNDER THE FEDERAL HABEAS
CORPUS STATUTE.  PP. 398-399, 426-434. 

(A)  FEDERAL COURT JURISDICTION IN A HABEAS CORPUS PROCEEDING IS
CONFERRED BY THE ALLEGATION OF AN UNCONSTITUTIONAL RESTRAINT, AND IT IS
NOT DEFEATED BY ANYTHING THAT MAY OCCUR IN THE STATE PROCEEDINGS.  PP.
426-427. 

(B)  DUE PROCESS DENIED IN THE STATE PROCEEDINGS LEADING TO A
CONVICTION IS NOT RESTORED JUST BECAUSE A STATE COURT DECLINES TO
ADJUDICATE ON THE MERITS THE CLAIM OF SUCH DENIAL.  P. 427. 

(C)  BY COMMITTING A PROCEDURAL DEFAULT, A DEFENDANT MAY BE DEBARRED
FROM CHALLENGING HIS CONVICTION IN THE STATE COURTS, EVEN ON FEDERAL
CONSTITUTIONAL GROUNDS; BUT FORFEITURE OF REMEDIES DOES NOT LEGITIMIZE
THE UNCONSTITUTIONAL CONDUCT BY WHICH HIS CONVICTION WAS PROCURED.  PP.
427-428. 

(D)  THE FEDERAL COURTS ARE NOT WITHOUT POWER TO GRANT HABEAS CORPUS
RELIEF TO AN APPLICANT WHOSE FEDERAL CLAIMS WOULD NOT BE HEARD ON
DIRECT REVIEW IN THIS COURT BECAUSE OF A PROCEDURAL DEFAULT FURNISHING
AN ADEQUATE AND INDEPENDENT GROUND OF STATE DECISION.  PP. 428-434. 

4.  RESPONDENT'S FAILURE TO APPEAL WAS NOT A FAILURE TO EXHAUST "THE
REMEDIES AVAILABLE IN THE COURTS OF THE STATE," AS REQUIRED BY 28
U.S.C. SEC. 2254.  THAT REQUIREMENT REFERS ONLY TO A FAILURE TO EXHAUST
STATE REMEDIES STILL OPEN TO THE APPLICANT AT THE TIME HE FILES HIS
APPLICATION FOR HABEAS CORPUS IN THE FEDERAL COURT.  PP. 434-435. 

5.  DARR V. BURFORD, 339 U.S. 200, IS OVERRULED TO THE EXTENT THAT IT
REQUIRED A STATE PRISONER TO SEEK CERTIORARI IN THIS COURT BEFORE
SEEKING FEDERAL HABEAS CORPUS RELIEF.  PP. 435-438. 

6.  RESPONDENT'S FAILURE TO APPEAL CANNOT, IN THE CIRCUMSTANCES OF
THIS CASE, BE DEEMED AN INTELLIGENT AND UNDERSTANDING WAIVER OF HIS
RIGHT TO APPEAL SUCH AS TO JUSTIFY THE WITHHOLDING OF FEDERAL HABEAS
CORPUS RELIEF.  PP. 399, 438-440. 

(A)  A FEDERAL JUDGE MAY, IN HIS DISCRETION, DENY RELIEF TO AN
APPLICANT FOR HABEAS CORPUS WHO HAS DELIBERATELY BY-PASSED THE ORDERLY
PROCEDURE OF STATE COURTS AND IN SO DOING HAS FORFEITED HIS STATE-COURT
REMEDIES.  P. 438. 

(B)  THIS GRANT OF DISCRETION IS NOT TO BE INTERPRETED AS PERMISSION
TO INTRODUCE LEGAL FICTIONS INTO FEDERAL HABEAS CORPUS PROCEEDINGS.  IT
IS APPLICABLE ONLY WHEN THE PETITIONER HIMSELF HAS UNDERSTANDINGLY AND
KNOWINGLY FOREGONE THE PRIVILEGE OF SEEKING TO VINDICATE HIS FEDERAL
CLAIMS IN THE STATE COURTS.  P. 439. 

(C)  IN THE CIRCUMSTANCES OF THIS CASE, IT CANNOT BE SAID THAT
RESPONDENT'S FAILURE TO APPEAL JUSTIFIED THE WITHHOLDING OF FEDERAL
HABEAS CORPUS RELIEF.  PP. 439-440. 

FAY, WARDEN, ET AL. V. NOIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS IMPORTANT QUESTIONS TOUCHING THE FEDERAL HABEAS
CORPUS JURISDICTION, 28 U.S.C. SECS. 2241 ET SEQ., IN ITS RELATION TO
STATE CRIMINAL JUSTICE.  THE NARROW QUESTION IS WHETHER THE RESPONDENT
NOIA MAY BE GRANTED FEDERAL HABEAS CORPUS RELIEF FROM IMPRISONMENT
UNDER A NEW YORK CONVICTION NOW ADMITTED BY THE STATE TO REST UPON A
CONFESSION OBTAINED FROM HIM IN VIOLATION OF THE FOURTEENTH AMENDMENT,
AFTER HE WAS DENIED STATE POST-CONVICTION RELIEF BECAUSE THE COERCED
CONFESSION CLAIM HAD BEEN DECIDED AGAINST HIM AT THE TRIAL AND NOIA HAD
ALLOWED THE TIME FOR A DIRECT APPEAL TO LAPSE WITHOUT SEEKING REVIEW BY
A STATE APPELLATE COURT. 

NOIA WAS CONVICTED IN 1942 WITH SANTO CAMINITO AND FRANK BONINO IN
THE COUNTY COURT OF KINGS COUNTY, NEW YORK, OF A FELONY MURDER IN THE
SHOOTING AND KILLING OF ONE HAMMEROFF DURING THE COMMISSION OF A
ROBBERY.  THE SOLE EVIDENCE AGAINST EACH DEFENDANT WAS HIS SIGNED
CONFESSION.  CAMINITO AND BONINO, BUT NOT NOIA, APPEALED THEIR
CONVICTIONS TO THE APPELLATE DIVISION OF THE NEW YORK SUPREME COURT. 
THESE APPEALS WERE UNSUCCESSFUL, BUT SUBSEQUENT LEGAL PROCEEDINGS
RESULTED IN THE RELEASES OF CAMINITO AND BONINO ON FINDINGS THAT THEIR
CONFESSIONS HAD BEEN COERCED AND THEIR CONVICTIONS THEREFORE PROCURED
IN VIOLATION OF THE FOURTEENTH AMENDMENT.  (FN1)  ALTHOUGH IT HAS BEEN
STIPULATED THAT THE COERCIVE NATURE OF NOIA'S CONFESSION WAS ALSO
ESTABLISHED, (FN2) THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK HELD IN NOIA'S FEDERAL HABEAS CORPUS PROCEEDING
THAT BECAUSE OF HIS FAILURE TO APPEAL HE MUST BE DENIED RELIEF UNDER
THE PROVISION OF 28 U.S.C. SEC. 2254 WHEREBY "AN APPLICATION FOR A WRIT
OF HABEAS CORPUS IN BEHALF OF A PERSON IN CUSTODY PURSUANT TO THE
JUDGMENT OF A STATE COURT SHALL NOT BE GRANTED UNLESS IT APPEARS THAT
THE APPLICANT HAS EXHAUSTED THE REMEDIES AVAILABLE IN THE COURTS OF THE
STATE  ...  ."  183 F. SUPP. 222 (1960).  (FN3)  THE COURT OF APPEALS
FOR THE SECOND CIRCUIT REVERSED, ONE JUDGE DISSENTING, AND ORDERED THAT
NOIA'S CONVICTION BE SET ASIDE AND THAT HE BE DISCHARGED FROM CUSTODY
UNLESS GIVEN A NEW TRIAL FORTHWITH.  300 F.2D 345 (1962).  THE COURT OF
APPEALS QUESTIONED WHETHER SEC. 2254 BARRED RELIEF ON FEDERAL HABEAS
CORPUS WHERE THE APPLICANT HAD FAILED TO EXHAUST STATE REMEDIES NO
LONGER AVAILABLE TO HIM AT THE TIME THE HABEAS PROCEEDING WAS COMMENCED
(HERE A DIRECT APPEAL FROM THE CONVICTION), BUT HELD THAT IN ANY EVENT
EXCEPTIONAL CIRCUMSTANCES WERE PRESENT WHICH EXCUSED COMPLIANCE WITH
THE SECTION.  THE COURT ALSO REJECTED OTHER ARGUMENTS ADVANCED IN
SUPPORT OF THE PROPOSITION THAT THE FEDERAL REMEDY WAS UNAVAILABLE TO
NOIA.  THE FIRST WAS THAT THE DENIAL OF STATE POST-CONVICTION CORAM
NOBIS RELIEF ON THE GROUND OF NOIA'S FAILURE TO APPEAL BARRED HABEAS
RELIEF BECAUSE SUCH FAILURE CONSTITUTED AN ADEQUATE AND INDEPENDENT
STATE GROUND OF DECISION, SUCH THAT THIS COURT ON DIRECT REVIEW OF THE
STATE CORAM NOBIS PROCEEDINGS WOULD HAVE DECLINED TO ADJUDICATE THE
FEDERAL QUESTIONS PRESENTED.  IN REJECTING THIS ARGUMENT, THE COURT -
WHILE EXPRESSING THE VIEW THAT "JUST AS IT WOULD BE AN ENCROACHMENT ON
THE PREROGATIVES OF THE STATE FOR THE SUPREME COURT UPON DIRECT REVIEW
TO DISREGARD THE STATE GROUND, EQUALLY - IF NOT MORE SO - WOULD IT BE A
TRESPASS AGAINST THE STATE FOR A LOWER FEDERAL COURT, UPON A PETITION
FOR HABEAS CORPUS, TO DISREGARD THE STATE GROUND IN GRANTING RELIEF TO
THE PRISONER,"  300 F.2D, AT 359 - HELD THAT THE EXCEPTIONAL
CIRCUMSTANCES EXCUSING COMPLIANCE WITH SEC. 2254 ALSO ESTABLISHED THAT
NOIA'S FAILURE TO APPEAL WAS NOT A STATE PROCEDURAL GROUND ADEQUATE TO
BAR THE FEDERAL HABEAS REMEDY:  "THE COINCIDENCE OF THESE FACTORS: THE
UNDISPUTED VIOLATION OF A SIGNIFICANT CONSTITUTIONAL RIGHT, THE
KNOWLEDGE OF THIS VIOLATION BROUGHT HOME TO THE FEDERAL COURT AT THE
INCIPIENCY OF THE HABEAS CORPUS PROCEEDING SO FORCIBLY THAT THE STATE
MADE NO EFFORT TO CONTRADICT IT, AND THE FREEDOM THE RELATOR'S
CODEFENDANTS NOW HAVE BY VIRTUE OF THEIR VINDICATIONS OF THE IDENTICAL
CONSTITUTIONAL RIGHT LEADS US TO CONCLUDE THAT THE STATE PROCEDURAL
GROUND, THAT OF A SIMPLE FAILURE TO APPEAL, REASONABLE ENOUGH TO
PREVENT FEDERAL JUDICIAL INTERVENTION IN MOST CASES, IS IN THIS
PARTICULAR CASE UNREASONABLE AND INADEQUATE."  300 F.2D, AT 362.  THE
SECOND ARGUMENT WAS THAT NOIA'S FAILURE TO APPEAL WAS TO BE DEEMED A
WAIVER OF HIS CLAIM THAT HE HAD BEEN UNCONSTITUTIONALLY CONVICTED.  THE
COURT OF APPEALS REJECTED THIS ARGUMENT ON THE GROUND THAT NO WAIVER
COULD BE INFERRED IN THE CIRCUMSTANCES.  ID., AT 351-352. 

WE GRANTED CERTIORARI.  369 U.S. 869.  WE AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS BUT REACH THAT COURT'S RESULT BY A DIFFERENT COURSE OF
REASONING.  WE HOLD:  (1) FEDERAL COURTS HAVE POWER UNDER THE FEDERAL
HABEAS STATUTE TO GRANT RELIEF DESPITE THE APPLICANT'S FAILURE TO HAVE
PURSUED A STATE REMEDY NOT AVAILABLE TO HIM AT THE TIME HE APPLIES; THE
DOCTRINE UNDER WHICH STATE PROCEDURAL DEFAULTS ARE HELD TO CONSTITUTE
AN ADEQUATE AND INDEPENDENT STATE LAW GROUND BARRING DIRECT SUPREME
COURT REVIEW IS NOT TO BE EXTENDED TO LIMIT THE POWER GRANTED THE
FEDERAL COURTS UNDER THE FEDERAL HABEAS STATUTE.  (2) NOIA'S FAILURE TO
APPEAL WAS NOT A FAILURE TO EXHAUST "THE REMEDIES AVAILABLE IN THE
COURTS OF THE STATE" AS REQUIRED BY SEC. 2254; THAT REQUIREMENT REFERS
ONLY TO A FAILURE TO EXHAUST STATE REMEDIES STILL OPEN TO THE APPLICANT
AT THE TIME HE FILES HIS APPLICATION FOR HABEAS CORPUS IN THE FEDERAL
COURT.  (3) NOIA'S FAILURE TO APPEAL CANNOT UNDER THE CIRCUMSTANCES BE
DEEMED AN INTELLIGENT AND UNDERSTANDING WAIVER OF HIS RIGHT TO APPEAL
SUCH AS TO JUSTIFY THE WITHHOLDING OF FEDERAL HABEAS CORPUS RELIEF. 

                                   I. 

THE QUESTION HAS BEEN MUCH MOOTED UNDER WHAT CIRCUMSTANCES, IF ANY,
THE FAILURE OF A STATE PRISONER TO COMPLY WITH A STATE PROCEDURAL
REQUIREMENT, AS A RESULT OF WHICH THE STATE COURTS DECLINE TO PASS ON
THE MERITS OF HIS FEDERAL DEFENSE, BARS SUBSEQUENT RESORT TO THE
FEDERAL COURTS FOR RELIEF ON HABEAS CORPUS.  (FN4)  PLAINLY IT IS A
QUESTION THAT HAS IMPORTANT IMPLICATIONS FOR FEDERAL-STATE RELATIONS IN
THE AREA OF THE ADMINISTRATION OF CRIMINAL JUSTICE.  IT CANNOT BE
ANSWERED WITHOUT A PRELIMINARY INQUIRY INTO THE HISTORICAL DEVELOPMENT
OF THE WRIT OF HABEAS CORPUS. 

WE DO WELL TO BEAR IN MIND THE EXTRAORDINARY PRESTIGE OF THE GREAT
WRIT, HABEAS CORPUS AD SUBJICIENDUM, (FN5) IN ANGLO-AMERICAN
JURISPRUDENCE:  "THE MOST CELEBRATED WRIT IN THE ENGLISH LAW."   3
BLACKSTONE COMMENTARIES 129.  IT IS "A WRIT ANTECEDENT TO STATUTE, AND
THROWING ITS ROOT DEEP INTO THE GENIUS OF OUR COMMON LAW  ...  .  IT IS
PERHAPS THE MOST IMPORTANT WRIT KNOWN TO THE CONSTITUTIONAL LAW OF
ENGLAND, AFFORDING AS IT DOES A SWIFT AND IMPERATIVE REMEDY IN ALL
CASES OF ILLEGAL RESTRAINT OR CONFINEMENT.  IT IS OF IMMEMORIAL
ANTIQUITY, AN INSTANCE OF ITS USE OCCURRING IN THE THIRTY-THIRD YEAR OF
EDWARD I."  SECRETARY OF STATE FOR HOME AFFAIRS V. O'BRIEN, (1923) A.C.
603, 609 (H.L.).  RECEIVED INTO OUR OWN LAW IN THE COLONIAL PERIOD,
(FN6) GIVEN EXPLICIT RECOGNITION IN THE FEDERAL CONSTITUTION, ART. I,
SEC. 9, CL. 2, (FN7) INCORPORATED IN THE FIRST GRANT OF FEDERAL COURT
JURISDICTION, ACT OF SEPTEMBER 24, 1789, C. 20, SEC.  14, 1 STAT. 81
82, HABEAS CORPUS WAS EARLY CONFIRMED BY CHIEF JUSTICE JOHN MARSHALL TO
BE A "GREAT CONSTITUTIONAL PRIVILEGE."  EX PARTE BOLLMAN AND SWARTWOUT,
4 CRANCH 75, 95.  ONLY TWO TERMS AGO THIS COURT HAD OCCASION TO
REAFFIRM THE HIGH PLACE OF THE WRIT IN OUR JURISPRUDENCE:  "WE REPEAT
WHAT HAS BEEN SO TRULY SAID OF THE FEDERAL WRIT: 'THERE IS NO HIGHER
DUTY THAN TO MAINTAIN IT UNIMPAIRED,' BOWEN V. JOHNSTON, 306 U.S. 19,
26 (1939), AND UNSUSPENDED, SAVE ONLY IN THE CASES SPECIFIED IN OUR
CONSTITUTION."  SMITH V. BENNETT, 365 U.S. 708, 713. 

THESE ARE NOT EXTRAVAGANT EXPRESSIONS.  BEHIND THEM MAY BE DISCERNED
THE UNCEASING CONTEST BETWEEN PERSONAL LIBERTY AND GOVERNMENTAL
OPPRESSION.  IT IS NO ACCIDENT THAT HABEAS CORPUS HAS TIME AND AGAIN
PLAYED A CENTRAL ROLE IN NATIONAL CRISES, WHEREIN THE CLAIMS OF ORDER
AND OF LIBERTY CLASH MOST ACUTELY, NOT ONLY IN ENGLAND IN THE
SEVENTEENTH CENTURY, (FN8) BUT ALSO IN AMERICA FROM OUR VERY
BEGINNINGS, AND TODAY.  (FN9)  ALTHOUGH IN FORM THE GREAT WRIT IS
SIMPLY A MODE OF PROCEDURE, ITS HISTORY IS INEXTRICABLY INTERTWINED
WITH THE GROWTH OF FUNDAMENTAL RIGHTS OF PERSONAL LIBERTY.  FOR ITS
FUNCTION HAS BEEN TO PROVIDE A PROMPT AND EFFICACIOUS REMEDY FOR
WHATEVER SOCIETY DEEMS TO BE INTOLERABLE RESTRAINTS.  ITS ROOT
PRINCIPLE IS THAT IN A CIVILIZED SOCIETY, GOVERNMENT MUST ALWAYS BE
ACCOUNTABLE TO THE JUDICIARY FOR A MAN'S IMPRISONMENT:  IF THE
IMPRISONMENT CANNOT BE SHOWN TO CONFORM WITH THE FUNDAMENTAL
REQUIREMENTS OF LAW, THE INDIVIDUAL IS ENTITLED TO HIS IMMEDIATE
RELEASE.  THUS THERE IS NOTHING NOVEL IN THE FACT THAT TODAY HABEAS
CORPUS IN THE FEDERAL COURTS PROVIDES A MODE FOR THE REDRESS OF DENIALS
OF DUE PROCESS OF LAW.  VINDICATION OF DUE PROCESS IS PRECISELY ITS
HISTORIC OFFICE.  IN 1593, FOR EXAMPLE, A BILL WAS INTRODUCED IN THE
HOUSE OF COMMONS, WHICH, AFTER DEPLORING THE FREQUENCY OF VIOLATIONS OF
"THE GREAT CHARTER AND AUNCIENT GOOD LAWES AND STATUTES OF THIS
REALME," PROVIDED: 

"FORE REMEDY WHEREOF BE IT ENACTED:  THAT THE PROVISIONS AND
PROHIBICIONS OF THE SAID GREAT CHARTER AND OTHER LAWES IN THAT BEHALFE
MADE BE DULIE AND INVIOLATELIE OBSERVED.  AND THAT NO PERSON OR PERSONS
BE HEREAFTER COMMITTED TO PRISON BUT YT BE BY SUFFICIENT WARRANT AND
AUTHORITIES AND BY DUE COURSE AND PROCEEDINGS IN LAWE  ...  . 

"AND THAT THE JUSTICE OF ANIE THE QUEENES MAJESTIES COURTS OF RECORDE
AT THE COMMON LAWE MAIE AWARDE A WRITT OF HABEAS CORPUS FOR THE
DELIVERYE OF ANYE PERSON SO IMPRISONED  ...  ."  (FN10) 

ALTHOUGH IT WAS NOT ENACTED, THIS BILL ACCURATELY PREFIGURED THE
UNION OF THE RIGHT TO DUE PROCESS DRAWN FROM MAGNA CHARTA AND THE
REMEDY OF HABEAS CORPUS ACCOMPLISHED IN THE NEXT CENTURY. 

OF COURSE STANDARDS OF DUE PROCESS HAVE EVOLVED OVER THE CENTURIES. 
BUT THE NATURE AND PURPOSE OF HABEAS CORPUS HAVE REMAINED REMARKABLY
CONSTANT.  HISTORY REFUTES THE NOTION THAT UNTIL RECENTLY THE WRIT WAS
AVAILABLE ONLY IN A VERY NARROW CLASS OF LAWLESS IMPRISONMENTS.  FOR
EXAMPLE, IT IS NOT TRUE THAT AT COMMON LAW HABEAS CORPUS WAS
EXCLUSIVELY DESIGNED AS A REMEDY FOR EXECUTIVE DETENTIONS; IT WAS EARLY
USED BY THE GREAT COMMON-LAW COURTS TO EFFECT THE RELEASE OF PERSONS
DETAINED BY ORDER OF INFERIOR COURTS.  (FN11)  THE PRINCIPLE THAT
JUDICIAL AS WELL AS EXECUTIVE RESTRAINTS MAY BE INTOLERABLE RECEIVED
DRAMATIC EXPRESSION IN BUSHELL'S CASE, VAUGHAN, 135, 124 ENG. REP.
1006, 6 HOWELL'S STATE TRIALS 999 (1670).  BUSHELL WAS ONE OF THE
JURORS IN THE TRIAL, HELD BEFORE THE COURT OF OYER AND TERMINER AT THE
OLD BAILEY, OF WILLIAM PENN AND WILLIAM MEAD ON CHARGES OF TUMULTUOUS
ASSEMBLY AND OTHER CRIMES.  WHEN THE JURY BROUGHT IN A VERDICT OF NOT
GUILTY, THE COURT ORDERED THE JURORS COMMITTED FOR CONTEMPT.  BUSHELL
SOUGHT HABEAS CORPUS, AND THE COURT OF COMMON PLEAS, IN A MEMORABLE
OPINION BY CHIEF JUSTICE VAUGHAN, ORDERED HIM DISCHARGED FROM CUSTODY. 
THE CASE IS BY NO MEANS ISOLATED, (FN12) AND WHEN HABEAS CORPUS
PRACTICE WAS CODIFIED IN THE HABEAS CORPUS ACT OF 1679, 31 CAR.  II, C.
2, NO DISTINCTION WAS MADE BETWEEN EXECUTIVE AND JUDICIAL DETENTIONS. 
(FN13) 

NOR IS IT TRUE THAT AT COMMON LAW HABEAS CORPUS WAS AVAILABLE ONLY TO
INQUIRE INTO THE JURISDICTION, IN A NARROW SENSE, OF THE COMMITTING
COURT.  BUSHELL'S CASE IS AGAIN IN POINT.  CHIEF JUSTICE VAUGHAN DID
NOT BASE HIS DECISION ON THE THEORY THAT THE COURT OF OYER AND TERMINER
HAD NO JURISDICTION TO COMMIT PERSONS FOR CONTEMPT, BUT ON THE PLAIN
DENIAL OF DUE PROCESS, VIOLATIVE OF MAGNA CHARTA, OF A COURT'S
IMPRISONING THE JURY BECAUSE IT DISAGREED WITH THE VERDICT: 

"  ...  WHEN A MAN IS BROUGHT BY HABEAS CORPUS TO THE COURT, AND UPON
RETORN OF IT, IT APPEARS TO THE COURT, THAT HE WAS AGAINST LAW
IMPRISON'D AND DETAIN'D,  ...  HE SHALL NEVER BE BY THE ACT OF THE
COURT REMANDED TO HIS UNLAWFUL IMPRISONMENT, FOR THEN THE COURT SHOULD
DO AN ACT OF INJUSTICE IN IMPRISONING HIM, DE NOVO, AGAINST LAW,
WHEREAS THE GREAT CHARTER IS QUOD NULLUS LIBET HOMO IMPRISONETUR NISI
PER LEGEM TERRAE; THIS IS THE PRESENT CASE, AND THIS WAS THE CASE UPON
ALL THE PRESIDENTS (PRECEDENTS) PRODUC'D AND MANY MORE THAT MIGHT BE
PRODUC'D, WHERE UPON HABEAS CORPUS, MANY HAVE BEEN DISCHARG'D  ...  . 

"THIS APPEARS PLAINLY BY MANY OLD BOOKS, IF THE REASON OF THEM BE
RIGHTLY TAKEN, FOR INSUFFICIENT CAUSES ARE AS NO CAUSES RETORN'D; AND
TO SEND A MAN BACK TO PRISON FOR NO CAUSE RETORN'D, SEEMS UNWORTHY OF A
COURT."  VAUGHAN, AT 156, 124 ENG. REP., AT 1016, 9 HOWELL'S STATE
TRIALS, AT 1023. 

TO THE SAME EFFECT, WE READ IN BACON'S ABRIDGMENT: 

"IF THE COMMITMENT BE AGAINST LAW, AS BEING MADE BY ONE WHO HAD NO
JURISDICTION OF THE CAUSE, OR FOR A MATTER FOR WHICH BY LAW NO MAN
OUGHT TO BE PUNISHED, THE COURT ARE TO DISCHARGE HIM  ...  ; AND THE
COMMITMENT IS LIABLE TO THE SAME OBJECTION WHERE THE CAUSE IS SO
LOOSELY SET FORTH, THAT THE COURT CANNOT ADJUDGE WHETHER IT WERE A
REASONABLE GROUND OF IMPRISONMENT OR NOT."  (FN14)   THUS, AT THE TIME
THAT THE SUSPENSION CLAUSE WAS WRITTEN INTO OUR FEDERAL CONSTITUTION
AND THE FIRST JUDICIARY ACT WAS PASSED CONFERRING HABEAS CORPUS
JURISDICTION UPON THE FEDERAL JUDICIARY, THERE WAS RESPECTABLE COMMON
LAW AUTHORITY FOR THE PROPOSITION THAT HABEAS WAS AVAILABLE TO REMEDY
ANY KIND OF GOVERNMENTAL RESTRAINT CONTRARY TO FUNDAMENTAL LAW.  IN
THIS CONNECTION IT IS SIGNIFICANT THAT NEITHER THE CONSTITUTION NOR THE
JUDICIARY ACT ANYWHERE DEFINES THE WRIT, ALTHOUGH THE ACT DOES
INTIMATE, 1 STAT. 82, THAT ITS ISSUANCE IS TO BE "AGREEABLE TO THE
PRINCIPLES AND USAGES OF LAW" - THE COMMON LAW, PRESUMABLY.  WE NEED
NOT PAUSE TO CONSIDER WHETHER IT WAS THE FRAMERS' UNDERSTANDING THAT
CONGRESSIONAL REFUSAL TO PERMIT THE FEDERAL COURTS TO ACCORD THE WRIT
ITS FULL COMMON-LAW SCOPE AS WE HAVE DESCRIBED IT MIGHT CONSTITUTE AN
UNCONSTITUTIONAL SUSPENSION OF THE PRIVILEGE OF THE WRIT.  THERE HAVE
BEEN SOME INTIMATIONS OF SUPPORT FOR SUCH A PROPOSITION IN DECISIONS OF
THIS COURT.  THUS MR. JUSTICE (LATER CHIEF JUSTICE) STONE WROTE FOR THE
COURT THAT "THE USE OF THE WRIT  ...  AS AN INCIDENT OF THE FEDERAL
JUDICIAL POWER IS IMPLICITLY RECOGNIZED BY ARTICLE I, SEC. 9, CLAUSE 2
OF THE CONSTITUTION."  MCNALLY V. HILL, 293 U.S. 131, 135.  TO THE SAME
EFFECT ARE THE WORDS OF CHIEF JUSTICE CHASE IN EX PARTE YERGER, 8
WALL.  85, 95:  "THE TERMS OF THIS PROVISION (THE SUSPENSION CLAUSE)
NECESSARILY IMPLY JUDICIAL ACTION."  AND SEE UNITED STATES EX REL.
TURNER V. WILLIAMS, 194 U.S. 279, 295 (CONCURRING OPINION).  (FN15)
BUT AT ALL EVENTS IT WOULD APPEAR THAT THE CONSTITUTION INVITES, IF IT
DOES NOT COMPEL, CF. BYRD V. BLUE RIDGE RURAL ELEC.  COOPERATIVE, 356
U.S. 525, 537, A GENEROUS CONSTRUCTION OF THE POWER OF THE FEDERAL
COURTS TO DISPENSE THE WRIT CONFORMABLY WITH COMMON-LAW PRACTICE. 

THE EARLY DECISION OF THIS COURT IN EX PARTE WATKINS, 3 PET. 193,
WHICH HELD THAT THE JUDGMENT OF A FEDERAL COURT OF COMPETENT
JURISDICTION COULD NOT BE IMPEACHED ON HABEAS, SEEMS TO HAVE VIEWED THE
POWER MORE NARROWLY; SEE ALSO EX PARTE KEARNEY, 7 WHEAT.  38.  BUT
WATKINS MAY HAVE BEEN COMPELLED BY FACTORS, AFFECTING PECULIARLY THE
JURISDICTION OF THIS COURT, WHICH ARE NOT GENERALLY APPLICABLE TO
FEDERAL HABEAS CORPUS POWERS.  IT WAS PLAIN FROM THE DECISION IN
MARBURY V. MADISON, 1 CRANCH 137, 174-175, WHICH HAD NARROWLY CONSTRUED
THE GRANT OF ORIGINAL JURISDICTION TO THE SUPREME COURT IN ARTICLE III,
THAT THE COURT WOULD HAVE THE POWER TO ISSUE WRITS OF HABEAS CORPUS
ONLY IF SUCH ISSUANCE COULD BE DEEMED AN EXERCISE OF APPELLATE
JURISDICTION.  CONFRONTED WITH THE QUESTION IN EX PARTE BOLLMAN AND
SWARTWOUT, 4 CRANCH 75 - LIKE WATKINS, A CASE OF DIRECT APPLICATION TO
THE COURT FOR THE WRIT - THE COURT HELD THAT THE JURISDICTION "WHICH
THE COURT IS NOW ASKED TO EXERCISE IS CLEARLY APPELLATE.  IT IS THE
REVISION OF A DECISION OF AN INFERIOR COURT, BY WHICH A CITIZEN HAS
BEEN COMMITTED TO GAOL."  4 CRANCH, AT 100.  THIS ANSWER SUFFICED TO
ENABLE THE DISCHARGE OF THE PETITIONERS, WHO HAD BEEN COMMITTED (BUT
NOT TRIED OR CONVICTED) FOR TREASON; BUT AT THE SAME TIME IT VIRTUALLY
DICTATED THE RESULT IN WATKINS.  THE COURT HAD NO GENERAL JURISDICTION
OF APPEALS FROM FEDERAL CRIMINAL JUDGMENTS, SEE PP. 412-413, INFRA; IF,
THEREFORE, THE WRIT OF HABEAS CORPUS WAS APPELLATE IN NATURE, ITS
ISSUANCE TO VACATE SUCH A JUDGMENT WOULD HAVE THE EFFECT OF
ACCOMPLISHING INDIRECTLY WHAT THE COURT HAD NO POWER TO DO DIRECTLY. 
THIS REASONING IS PROMINENT IN CHIEF JUSTICE MARSHALL'S OPINION FOR THE
COURT IN WATKINS.  SEE 3 PET., AT 203. 

STRICTLY, THEN, WATKINS IS AUTHORITY ONLY AS TO THIS COURT'S POWER TO
ISSUE THE WRIT; THE HABEAS JURISDICTION OF THE OTHER FEDERAL COURTS AND
JUDGES, INCLUDING THE INDIVIDUAL JUSTICES OF THE SUPREME COURT, HAS
GENERALLY BEEN DEEMED ORIGINAL.  IN RE KAINE, 14 HOW.  103; EX PARTE
YERGER, 8 WALL.  85, 101.  BUT CF. EX PARTE CLARKE, 100 U.S. 399.  BUT
EVEN AS TO THIS COURT'S POWER, THE LIFE OF THE PRINCIPLES ADVANCED IN
WATKINS WAS RELATIVELY BRIEF.  (FN16)  IN EX PARTE LANGE, 18 WALL. 
163, AGAIN A CASE OF DIRECT APPLICATION TO THIS COURT FOR THE WRIT, THE
COURT ORDERED THE RELEASE OF ONE DULY CONVICTED IN A FEDERAL CIRCUIT
COURT.  THE TRIAL JUDGE, AFTER INITIALLY IMPOSING UPON THE DEFENDANT A
SENTENCE IN EXCESS OF THE LEGAL MAXIMUM, HAD ATTEMPTED TO CORRECT THE
ERROR BY RESENTENCING HIM.  THE COURT HELD THIS DOUBLE-SENTENCING
PROCEDURE UNCONSTITUTIONAL, ON THE GROUND OF DOUBLE JEOPARDY, AND WHILE
CONCEDING THAT THE CIRCUIT COURT HAD A GENERAL COMPETENCE IN CRIMINAL
CASES, REASONED THAT IT HAD NO JURISDICTION TO RENDER A PATENTLY
LAWLESS JUDGMENT. 

THIS MARKED A RETURN TO THE COMMON-LAW PRINCIPLE THAT RESTRAINTS
CONTRARY TO FUNDAMENTAL LAW, BY WHATEVER AUTHORITY IMPOSED, COULD BE
REDRESSED BY WRIT OF HABEAS CORPUS.  SEE ALSO EX PARTE WELLS, 18 HOW. 
307; EX PARTE PARKS, 93 U.S. 18, 21.  THE PRINCIPLE WAS CLEARLY STATED
A FEW YEARS AFTER THE LANGE DECISION BY MR. JUSTICE BRADLEY, WRITING
FOR THE COURT IN EX PARTE SIEBOLD, 100 U.S. 371, 376-377: 

"THE VALIDITY OF THE JUDGMENTS IS ASSAILED ON THE GROUND THAT THE
ACTS OF CONGRESS UNDER WHICH THE INDICTMENTS WERE FOUND ARE
UNCONSTITUTIONAL.  IF THIS POSITION IS WELL TAKEN, IT AFFECTS THE
FOUNDATION OF THE WHOLE PROCEEDINGS.  AN UNCONSTITUTIONAL LAW IS VOID,
AND IS AS NO LAW.  AN OFFENCE CREATED BY IT IS NOT A CRIME.  A
CONVICTION UNDER IT IS NOT MERELY ERRONEOUS, BUT IS ILLEGAL AND VOID,
AND CANNOT BE A LEGAL CAUSE OF IMPRISONMENT.  IT IS TRUE, IF NO WRIT OF
ERROR LIES, THE JUDGMENT MAY BE FINAL, IN THE SENSE THAT THERE MAY BE
NO MEANS OF REVERSING IT.  BUT PERSONAL LIBERTY IS OF SO GREAT MOMENT
IN THE EYE OF THE LAW THAT THE JUDGMENT OF AN INFERIOR COURT AFFECTING
IT IS NOT DEEMED SO CONCLUSIVE BUT THAT  ...  THE QUESTION OF THE
COURT'S AUTHORITY TO TRY AND IMPRISON THE PARTY MAY BE REVIEWED ON
HABEAS CORPUS  ...  ." 

THE COURSE OF DECISIONS OF THIS COURT FROM LANGE AND SIEBOLD TO THE
PRESENT MAKES PLAIN THAT RESTRAINTS CONTRARY TO OUR FUNDAMENTAL LAW,
THE CONSTITUTION, MAY BE CHALLENGED ON FEDERAL HABEAS CORPUS EVEN
THOUGH IMPOSED PURSUANT TO THE CONVICTION OF A FEDERAL COURT OF
COMPETENT JURISDICTION.  (FN17) 

THE SAME PRINCIPLES HAVE CONSISTENTLY BEEN APPLIED IN CASES OF STATE
PRISONERS SEEKING HABEAS CORPUS IN THE FEDERAL COURTS, ALTHOUGH THE
DEVELOPMENT OF THE LAW IN THIS AREA WAS AT FIRST DELAYED FOR SEVERAL
REASONS.  THE FIRST JUDICIARY ACT DID NOT EXTEND FEDERAL HABEAS TO
PRISONERS IN STATE CUSTODY, EX PARTE DORR, 3 HOW.  103; AND SHORTLY
AFTER CONGRESS REMOVED THIS LIMITATION IN 1867, IT WITHDREW FROM THIS
COURT JURISDICTION OF APPEALS FROM HABEAS DECISIONS BY THE LOWER
FEDERAL COURTS AND DID NOT RESTORE IT FOR ALMOST 20 YEARS.  (FN18)
MOREOVER, IT WAS NOT UNTIL THIS CENTURY THAT THE FOURTEENTH AMENDMENT
WAS DEEMED TO APPLY SOME OF THE SAFEGUARDS OF CRIMINAL PROCEDURE
CONTAINED IN THE BILL OF RIGHTS TO THE STATES.  YET DURING THE PERIOD
OF THE WITHDRAWAL OF THE SUPREME COURT'S JURISDICTION OF HABEAS
APPEALS, THE LOWER FEDERAL COURTS DID NOT HESITATE TO DISCHARGE STATE
PRISONERS WHOSE CONVICTIONS RESTED ON UNCONSTITUTIONAL STATUTES OR HAD
OTHERWISE BEEN OBTAINED IN DEROGATION OF CONSTITUTIONAL RIGHTS.  (FN19)
AFTER ITS JURISDICTION HAD BEEN RESTORED, THIS COURT ADHERED TO THE
PATTERN SET BY THE LOWER FEDERAL COURTS AND TO THE PRINCIPLES
ENUNCIATED IN EX PARTE SIEBOLD AND THE OTHER FEDERAL-PRISONER CASES. 
(FN20)  MORE RECENTLY, FURTHER APPLICATIONS OF THE FOURTEENTH AMENDMENT
IN STATE CRIMINAL PROCEEDINGS HAVE LED THE COURT TO FIND
CORRESPONDINGLY MORE NUMEROUS OCCASIONS UPON WHICH FEDERAL HABEAS WOULD
LIE.  (FN21) 

MR. JUSTICE HOLMES EXPRESSED THE RATIONALE BEHIND SUCH DECISIONS IN
LANGUAGE THAT SUMS UP VIRTUALLY THE WHOLE HISTORY OF THE GREAT WRIT: 

"  ...  HABEAS CORPUS CUTS THROUGH ALL FORMS AND GOES TO THE VERY
TISSUE OF THE STRUCTURE.  IT COMES IN FROM THE OUTSIDE, NOT IN
SUBORDINATION TO THE PROCEEDINGS, AND ALTHOUGH EVERY FORM MAY HAVE BEEN
PRESERVED OPENS THE INQUIRY WHETHER THEY HAVE BEEN MORE THAN AN EMPTY
SHELL. 

"THE ARGUMENT FOR THE APPELLEE IN SUBSTANCE IS THAT THE TRIAL WAS IN
A COURT OF COMPETENT JURISDICTION  ...  .  BUT  ...  WHATEVER
DISAGREEMENT THERE MAY BE AS TO THE SCOPE OF THE PHRASE 'DUE PROCESS OF
LAW,' THERE CAN BE NO DOUBT THAT IT EMBRACES THE FUNDAMENTAL CONCEPTION
OF A FAIR TRIAL  ...  .  WE ARE NOT SPEAKING OF MERE DISORDER, OR MERE
IRREGULARITIES IN PROCEDURE, BUT OF A CASE WHERE THE PROCESSES OF
JUSTICE ARE ACTUALLY SUBVERTED.  IN SUCH A CASE, THE FEDERAL COURT HAS
JURISDICTION TO ISSUE THE WRIT.  THE FACT THAT THE STATE COURT STILL
HAS ITS GENERAL JURISDICTION AND IS OTHERWISE A COMPETENT COURT DOES
NOT MAKE IT IMPOSSIBLE TO FIND THAT A JURY HAS BEEN SUBJECTED TO
INTIMIDATION IN A PARTICULAR CASE.  THE LOSS OF JURISDICTION IS NOT
GENERAL BUT PARTICULAR, AND PROCEEDS FROM THE CONTROL OF A HOSTILE
INFLUENCE."  (FN22) 

WE DO NOT SUGGEST THAT THIS COURT HAS ALWAYS FOLLOWED AN UNWAVERING
LINE IN ITS CONCLUSIONS AS TO THE AVAILABILITY OF THE GREAT WRIT.  OUR
DEVELOPMENT OF THE LAW OF FEDERAL HABEAS CORPUS HAS BEEN ATTENDED,
SEEMINGLY, WITH SOME BACKING AND FILLING.  E.G., EX PARTE PARKS, 93
U.S. 18; EX PARTE BIGELOW, 113 U.S. 328; IN RE BELT, 159 U.S. 95; IN RE
MORAN, 203 U.S. 96; KNEWEL V. EGAN, 268 U.S. 442.  ALTHOUGH THE REMEDY
EXTENDS TO FEDERAL PRISONERS HELD IN VIOLATION OF FEDERAL LAW AND NOT
MERELY OF THE FEDERAL CONSTITUTION, MANY CASES HAVE DENIED RELIEF UPON
ALLEGATIONS MERELY OF ERROR OF LAW AND NOT OF A SUBSTANTIAL
CONSTITUTIONAL DENIAL.  E.G., EX PARTE PARKS, SUPRA, AT 20-21; IN RE
WIGHT, 134 U.S. 136, 148; HARLAN V. MCGOURIN, 218 U.S. 442, 448; EAGLES
V. UNITED STATES EX REL. SAMUELS, 329 U.S. 304.  SUCH DECISIONS ARE NOT
HOWEVER AUTHORITIES AGAINST APPLICATIONS WHICH INVOKE THE HISTORIC
OFFICE OF THE GREAT WRIT TO REDRESS DETENTIONS IN VIOLATION OF
FUNDAMENTAL LAW.  (FN23)

IN SOME OF THE CASES THE DENIAL OF THE REMEDY ON JURISDICTIONAL
GROUNDS SEEMS TO HAVE BEEN CHOSEN IN PREFERENCE TO DECISION OF THE
MERITS OF CONSTITUTIONAL CLAIMS FELT TO BE TENUOUS.  E.G., IN RE MORAN,
SUPRA; KNEWEL V. EGAN, SUPRA; GOTO V. LANE, 265 U.S. 393; UNITED STATES
V. VALANTE, 264 U.S. 563.  (FN24)  AND DOUBTLESS A POWERFUL INFLUENCE
AGAINST THE ALLOWANCE OF THE REMEDY TO STATE PRISONERS FLOWED FROM THE
AVAILABILITY OF REVIEW OF STATE CRIMINAL JUDGMENTS IN THIS COURT AS OF
RIGHT.  SEE, E.G., ANDREWS V. SWARTZ, 156 U.S. 272, 276.  BEFORE 1916
REVIEW OF SUCH JUDGMENTS WAS NOT DISCRETIONARY BY WRIT OF CERTIORARI
BUT OF RIGHT BY WRIT OF ERROR.  (FN25)  THE OCCASIONS ON WHICH THE
EXTRAORDINARY REMEDY OF HABEAS CORPUS WAS INDISPENSABLE WERE THEREFORE
FEW, SINCE THE PRACTICE OF THE COURT WAS TO PUT THE HABEAS CORPUS
APPLICANT TO HIS WRIT OF ERROR.  E.G., IN RE FREDERICH, 149 U.S. 70;
BERGEMANN V. BACKER, 157 U.S. 655.  AND WHEN THE COURT HAD NO GENERAL
APPELLATE JURISDICTION OF FEDERAL CRIMINAL JUDGMENTS, WHICH WAS THE
CASE UNTIL 1891, (FN26) THE WRIT WAS SPARINGLY ALLOWED FOR THE REASON
STATED BY CHIEF JUSTICE MARSHALL IN EX PARTE WATKINS, SUPRA. THUS, IN
BIGELOW THE COURT SAID:  "NO APPEAL OR WRIT OF ERROR  ...  LIES TO THIS
COURT.  THE ACT OF CONGRESS HAS MADE THE JUDGMENT OF THAT COURT (THE
SUPREME COURT OF THE DISTRICT OF COLUMBIA) CONCLUSIVE, AS IT HAD A
RIGHT TO DO, AND THE DEFENDANT, HAVING ONE REVIEW OF HIS TRIAL AND
JUDGMENT, HAS NO SPECIAL REASON TO COMPLAIN."  113 U.S., AT 329.  THE
SAME VIEW IS APPARENT IN EX PARTE PARKS, SUPRA, AT 20-21; EX PARTE
CURTIS, 106 U.S. 371, 375.  CF. HARLAN V. MCGOURIN, SUPRA, 218 U.S., AT
448. 

NEVERTHELESS, THE POSSIBLY GRUDGING SCOPE GIVEN THE GREAT WRIT IN
SUCH CASES IS OVERSHADOWED BY THE NUMEROUS AND VARIED ALLEGATIONS WHICH
THIS COURT HAS DEEMED COGNIZABLE ON HABEAS, NOT ONLY IN THE LAST
DECADES, BUT CONTINUOUSLY SINCE THE FETTERS OF THE WATKINS DECISION
WERE THROWN OFF IN EX PARTE LANGE.  E.G., EX PARTE WILSON, 114 U.S. 417
(FIFTH AMENDMENT GRAND JURY RIGHT); IN RE CONVERSE, 137 U.S. 624 (DUE
PROCESS CLAUSE OF FOURTEENTH AMENDMENT); ROGERS V. PECK, 199 U.S. 425
(SAME); FELTS V. MURPHY, 201 U.S. 123 (SAME); LOTT V. PITTMAN, 243 U.S.
588 (SAME); CALLAN V. WILSON, 127 U.S. 540, 557 (CONSTITUTIONAL RIGHT
TO JURY TRIAL IN FEDERAL CRIMINAL CASES); HAWAII V. MANKICHI, 190 U.S.
197 (SAME) (BY IMPLICATION); ARNDSTEIN V. MCCARTHY, 254 U.S. 71 (SELF
INCRIMINATION CLAUSE OF FIFTH AMENDMENT); MORGAN V. DEVINE, 237 U.S.
632 (DOUBLE JEOPARDY); ANDERSEN V. TREAT, 172 U.S. 24 (SIXTH AMENDMENT
RIGHT TO COUNSEL); AND SEE DECISIONS CITED AT NOTES 17, 20, AND 21,
SUPRA. 

AND SO, ALTHOUGH ALMOST 300 YEARS HAVE ELAPSED SINCE BUSHELL'S CASE,
CHANGED CONCEPTIONS OF THE KIND OF CRIMINAL PROCEEDINGS SO
FUNDAMENTALLY DEFECTIVE AS TO MAKE IMPRISONMENT PURSUANT TO THEM
CONSTITUTIONALLY INTOLERABLE SHOULD NOT BE ALLOWED TO OBSCURE THE BASIC
CONTINUITY IN THE CONCEPTION OF THE WRIT AS THE REMEDY FOR SUCH
IMPRISONMENTS. 

IT NOW REMAINS TO CONSIDER THIS PRINCIPLE IN THE APPLICATION TO THE
PRESENT CASE.  IT WAS SETTLED IN BROWN V. ALLEN, SUPRA, THAT THE USE OF
A COERCED CONFESSION IN A STATE CRIMINAL TRIAL COULD BE CHALLENGED IN A
FEDERAL HABEAS CORPUS PROCEEDING.  YET ACTUALLY THE PRINCIPLE HAD BEEN
FORESHADOWED MUCH EARLIER - INDEED, IN THE VERY FIRST CASE IN WHICH
THIS COURT REVERSED A STATE CONVICTION ON THE GROUND THAT COERCED
CONFESSIONS HAD BEEN USED IN EVIDENCE.  "THAT COMPLAINT IS  ...  OF A
WRONG SO FUNDAMENTAL THAT IT MADE THE WHOLE PROCEEDING A MERE PRETENSE
OF A TRIAL AND RENDERED THE CONVICTION AND SENTENCE WHOLLY VOID.  MOORE
V. DEMPSEY  ...  .  AND THE PROCEEDING THUS VITIATED COULD BE
CHALLENGED IN ANY APPROPRIATE MANNER."  BROWN V. MISSISSIPPI, 297 U.S.
278, 286-287.  UNDER THE CONDITIONS OF MODERN SOCIETY, NOIA'S
IMPRISONMENT, UNDER A CONVICTION PROCURED BY A CONFESSION HELD BY THE
COURT OF APPEALS IN CAMINITO V. MURPHY TO HAVE BEEN COERCED, AND WHICH
THE STATE HERE CONCEDES WAS OBTAINED IN VIOLATION OF THE FOURTEENTH
AMENDMENT, IS NO LESS INTOLERABLE THAN WAS BUSHELL'S UNDER THE
CONDITIONS OF A VERY DIFFERENT SOCIETY; AND HABEAS CORPUS IS NO LESS
THE APPROPRIATE REMEDY.                                        II. 

BUT, IT IS ARGUED, A DIFFERENT RESULT IS COMPELLED BY THE EXIGENCIES
OF FEDERALISM, WHICH PLAYED NO ROLE IN BUSHELL'S CASE. 

WE CAN APPRAISE THIS ARGUMENT ONLY IN LIGHT OF THE HISTORICAL
ACCOMMODATION THAT HAS BEEN WORKED OUT BETWEEN THE STATE AND FEDERAL
COURTS RESPECTING THE ADMINISTRATION OF FEDERAL HABEAS CORPUS.  OUR
STARTING POINT IS THE JUDICIARY ACT OF FEBRUARY 5, 1867, C. 28, SEC. 1,
14 STAT. 385-386, WHICH FIRST EXTENDED FEDERAL HABEAS CORPUS TO STATE
PRISONERS GENERALLY, AND WHICH SURVIVES, EXCEPT FOR SOME CHANGES IN
WORDING, IN THE PRESENT STATUTORY CODIFICATION.  THE ORIGINAL ACT AND
THE CURRENT PROVISIONS ARE SET OUT IN AN APPENDIX AT THE END OF THIS
OPINION, POST, PP. 441-445.  ALTHOUGH THE ACT OF 1867, LIKE ITS ENGLISH
AND AMERICAN PREDECESSORS, NOWHERE DEFINES HABEAS CORPUS, ITS EXPANSIVE
LANGUAGE AND IMPERATIVE TONE, VIEWED AGAINST THE BACKGROUND OF POST
CIVIL WAR EFFORTS IN CONGRESS TO DEAL SEVERELY WITH THE STATES OF THE
FORMER CONFEDERACY, WOULD SEEM TO MAKE INESCAPABLE THE CONCLUSION THAT
CONGRESS WAS ENLARGING THE HABEAS REMEDY AS PREVIOUSLY UNDERSTOOD, NOT
ONLY IN EXTENDING ITS COVERAGE TO STATE PRISONERS, BUT ALSO IN MAKING
ITS PROCEDURES MORE EFFICACIOUS.  IN 1867, CONGRESS WAS ANTICIPATING
RESISTANCE TO ITS RECONSTRUCTION MEASURES AND PLANNING THE
IMPLEMENTATION OF THE POST-WAR CONSTITUTIONAL AMENDMENTS.  DEBATED AND
ENACTED AT THE VERY PEAK OF THE RADICAL REPUBLICANS' POWER, SEE 2
WARREN, THE SUPREME COURT IN UNITED STATES HISTORY (1928), 455-497, THE
MEASURE THAT BECAME THE ACT OF 1867 SEEMS PLAINLY TO HAVE BEEN DESIGNED
TO FURNISH A METHOD ADDITIONAL TO AND INDEPENDENT OF DIRECT SUPREME
COURT REVIEW OF STATE COURT DECISIONS FOR THE VINDICATION OF THE NEW
CONSTITUTIONAL GUARANTEES.  CONGRESS SEEMS TO HAVE HAD NO THOUGHT,
THUS, THAT A STATE PRISONER SHOULD ABIDE STATE COURT DETERMINATION OF
HIS CONSTITUTIONAL DEFENSE - THE NECESSARY PREDICATE OF DIRECT REVIEW
BY THIS COURT - BEFORE RESORTING TO FEDERAL HABEAS CORPUS.  RATHER, A
REMEDY ALMOST IN THE NATURE OF REMOVAL FROM THE STATE TO THE FEDERAL
COURTS OF STATE PRISONERS' CONSTITUTIONAL CONTENTIONS SEEMS TO HAVE
BEEN ENVISAGED.  SEE EX PARTE BRIDGES, 2 WOODS 428, 432 (CIR. CT. N.D.
GA. 1875); EX PARTE MCCREADY, 1 HUGHES 598 (CIR. CT. E.D. VA. 1874). 
COMPARE REV. STAT., 1874, SEC. 641 (PROVIDING FOR REMOVAL TO FEDERAL
CIRCUIT COURT "WHEN ANY CIVIL SUIT OR CRIMINAL PROSECUTION IS COMMENCED
IN ANY STATE COURT, FOR ANY CAUSE WHATSOEVER, AGAINST ANY PERSON WHO IS
DENIED OR CANNOT ENFORCE IN THE JUDICIAL TRIBUNALS OF THE STATE  ...
ANY RIGHT SECURED TO HIM BY ANY LAW PROVIDING FOR THE EQUAL CIVIL
RIGHTS OF CITIZENS OF THE UNITED STATES"); VIRGINIA V. RIVES, 100 U.S.
313. 

THE ELABORATE PROVISIONS IN THE ACT FOR TAKING TESTIMONY AND TRYING
THE FACTS ANEW IN HABEAS HEARINGS (FN27) LEND SUPPORT TO THIS
CONCLUSION, AS DOES THE LEGISLATIVE HISTORY OF HOUSE BILL NO. 605,
WHICH BECAME, WITH SLIGHT CHANGES, THE ACT OF FEBRUARY 5, 1867.  THE
BILL WAS INTRODUCED IN RESPONSE TO A RESOLUTION OF THE HOUSE ON
DECEMBER 19, 1865, ASKING THE JUDICIARY COMMITTEE TO DETERMINE "WHAT
LEGISLATION IS NECESSARY TO ENABLE THE COURTS OF THE UNITED STATES TO
ENFORCE THE FREEDOM OF THE WIVES AND CHILDREN OF SOLDIERS OF THE UNITED
STATES  ...  AND ALSO TO ENFORCE THE LIBERTY OF ALL PERSONS UNDER THE
OPERATION OF THE CONSTITUTIONAL AMENDMENT ABOLISHING SLAVERY."  CONG.
GLOBE, 39TH CONG., 1ST SESS. 87.  THE TERMS IN WHICH IT WAS DESCRIBED
BY ITS PROPONENT, REPRESENTATIVE LAWRENCE OF OHIO, LEAVE LITTLE DOUBT
OF THE BREADTH OF ITS INTENDED SCOPE:  "THE EFFECT OF  ...  (BILL NO.
605) IS TO ENLARGE THE PRIVILEGE OF THE WRIT OF HOBEAS CORPUS, AND MAKE
THE JURISDICTION OF THE COURTS AND JUDGES OF THE UNITED STATES
COEXTENSIVE WITH ALL THE POWERS THAT CAN BE CONFERRED UPON THEM.  IT IS
A BILL OF THE LARGEST LIBERTY."  CONG.  GLOBE, 39TH CONG., 1ST SESS.
4151 (1866).  THIS COURT, SHORTLY AFTER THE PASSAGE OF THE ACT,
DESCRIBED IT IN EQUALLY BROAD TERMS:  "THIS LEGISLATION IS OF THE MOST
COMPREHENSIVE CHARACTER.  IT BRINGS WITHIN THE HABEAS CORPUS
JURISDICTION OF EVERY COURT AND OF EVERY JUDGE EVERY POSSIBLE CASE OF
PRIVATION OF LIBERTY CONTRARY TO THE NATIONAL CONSTITUTION, TREATIES,
OR LAWS.  IT IS IMPOSSIBLE TO WIDEN THIS JURISDICTION."  EX PARTE
MCCARDLE, 6 WALL.  318, 325-326. 

IN THUS EXTENDING THE HABEAS CORPUS POWER OF THE FEDERAL COURTS
EVIDENTLY TO WHAT WAS CONCEIVED TO BE ITS CONSTITUTIONAL LIMIT, THE ACT
OF FEBRUARY 5, 1867, CLEARLY ENOUGH PORTENDED DIFFICULT PROBLEMS
CONCERNING THE RELATIONSHIP OF THE STATE AND FEDERAL COURTS IN THE AREA
OF CRIMINAL ADMINISTRATION.  SUCH PROBLEMS WERE NOT SLOW TO MATURE. 
ONLY EIGHT YEARS AFTER PASSAGE OF THE ACT, MR. JUSTICE BRADLEY, SITTING
AS CIRCUIT JUSTICE, HELD THAT A CONVICTED STATE PRISONER WHO HAD NOT
SOUGHT ANY STATE APPELLATE OR COLLATERAL REMEDIES COULD NEVERTHELESS
WIN IMMEDIATE RELEASE ON FEDERAL HABEAS IF HE PROVED THE
UNCONSTITUTIONALITY OF HIS CONVICTION; ALTHOUGH THE JUDGMENT WAS NOT
FINAL WITHIN THE STATE COURT SYSTEM, THE FEDERAL COURT HAD THE POWER TO
INQUIRE INTO THE LEGALITY OF THE PRISONER'S DETENTION.  EX PARTE
BRIDGES, SUPRA.  ACCORD, EX PARTE MCCREADY, SUPRA.  THIS HOLDING FLOWED
INEXORABLY FROM THE CLEAR CONGRESSIONAL POLICY OF AFFORDING A FEDERAL
FORUM FOR THE DETERMINATION OF THE FEDERAL CLAIMS OF STATE CRIMINAL
DEFENDANTS, AND IT WAS EXPLICITLY APPROVED BY THE FULL COURT IN EX
PARTE ROYALL, 117 U.S. 241, 253, A CASE IN WHICH HABEAS HAD BEEN SOUGHT
IN ADVANCE OF TRIAL.  THE COURT HELD THAT EVEN IN SUCH A CASE THE
FEDERAL COURTS HAD THE POWER TO DISCHARGE A STATE PRISONER RESTRAINED
IN VIOLATION OF THE FEDERAL CONSTITUTION, SEE 117 U.S., AT 245, 250
251, BUT THAT ORDINARILY THE FEDERAL COURT SHOULD STAY ITS HAND ON
HABEAS PENDING COMPLETION OF THE STATE COURT PROCEEDINGS.  THIS
QUALIFICATION PLAINLY STEMMED FROM CONSIDERATIONS OF COMITY RATHER THAN
POWER, AND ENVISAGED ONLY THE POSTPONEMENT, NOT THE RELINQUISHMENT, OF
FEDERAL HABEAS CORPUS JURISDICTION, WHICH HAD ATTACHED BY REASON OF THE
ALLEGEDLY UNCONSTITUTIONAL DETENTION AND COULD NOT BE OUSTED BY WHAT
THE STATE COURT MIGHT DECIDE.  AS WELL STATED IN A LATER CASE: 

"  ...  WHILE THE FEDERAL COURTS HAVE THE POWER AND MAY DISCHARGE THE
ACCUSED IN ADVANCE OF HIS TRIAL, IF HE IS RESTRAINED OF HIS LIBERTY IN
VIOLATION OF THE FEDERAL CONSTITUTION OR LAWS,  ... THE PRACTICE OF
EXERCISING SUCH POWER BEFORE THE QUESTION HAS BEEN RAISED OR DETERMINED
IN THE STATE COURT IS ONE WHICH OUGHT NOT TO BE ENCOURAGED.  THE PARTY
CHARGED WAIVES NO DEFECT OF JURISDICTION BY SUBMITTING TO A TRIAL OF
HIS CASE UPON THE MERITS, AND WE THINK THAT COMITY DEMANDS THAT THE
STATE COURTS, UNDER WHOSE PROCESS HE IS HELD, AND WHICH ARE EQUALLY
WITH THE FEDERAL COURTS CHARGED WITH THE DUTY OF PROTECTING THE ACCUSED
IN THE ENJOYMENT OF HIS CONSTITUTIONAL RIGHTS, SHOULD BE APPEALED TO IN
THE FIRST INSTANCE.  SHOULD SUCH RIGHTS BE DENIED, HIS REMEDY IN THE
FEDERAL COURT WILL REMAIN UNIMPAIRED."  (FN28) 

THESE DECISIONS FASHIONED A DOCTRINE OF ABSTENTION, WHEREBY FULL PLAY
WOULD BE ALLOWED THE STATES IN THE ADMINISTRATION OF THEIR CRIMINAL
JUSTICE WITHOUT PREJUDICE TO FEDERAL RIGHTS ENWOVEN IN THE STATE
PROCEEDINGS.  THUS THE COURT HAS FREQUENTLY HELD THAT APPLICATION FOR A
WRIT OF HABEAS CORPUS SHOULD HAVE BEEN DENIED "WITHOUT PREJUDICE TO A
RENEWAL OF THE SAME AFTER THE ACCUSED HAD AVAILED HIMSELF OF SUCH
REMEDIES AS THE LAWS OF THE STATE AFFORDED  ...  ."  MINNESOTA V.
BRUNDAGE, 180 U.S. 499, 500-501.  SEE ALSO EX PARTE ROYALL, SUPRA, AT
254.  WITH REFINEMENTS, THIS DOCTRINE REQUIRING THE EXHAUSTION OF STATE
REMEDIES IS NOW CODIFIED IN 28 U.S.C. SEC. 2254.  (FN29)  BUT ITS
RATIONALE HAS NOT CHANGED:  "IT WOULD BE UNSEEMLY IN OUR DUAL SYSTEM OF
GOVERNMENT FOR A FEDERAL DISTRICT COURT TO UPSET A STATE COURT
CONVICTION WITHOUT AN OPPORTUNITY TO THE STATE COURTS TO CORRECT A
CONSTITUTIONAL VIOLATION  ...  .  SOLUTION WAS FOUND IN THE DOCTRINE OF
COMITY BETWEEN COURTS, A DOCTRINE WHICH TEACHES THAT ONE COURT SHOULD
DEFER ACTION ON CAUSES PROPERLY WITHIN ITS JURISDICTION UNTIL THE
COURTS OF ANOTHER SOVEREIGNTY WITH CONCURRENT POWERS, AND ALREADY
COGNIZANT OF THE LITIGATION, HAVE HAD AN OPPORTUNITY TO PASS UPON THE
MATTER."  DARR V. BURFORD, 339 U.S. 200, 204.  THE RULE OF EXHAUSTION
"IS NOT ONE DEFINING POWER BUT ONE WHICH RELATES TO THE APPROPRIATE
EXERCISE OF POWER."  BOWEN V. JOHNSTON, 306 U.S. 19, 27.  CF. STACK V.
BOYLE, 342 U.S. 1; FRISBIE V. COLLINS, 342 U.S. 519; DOUGLAS V. GREEN,
363 U.S. 192. 

THE REASONING OF EX PARTE ROYALL AND ITS PROGENY SUGGESTED THAT AFTER
THE STATE COURTS HAD DECIDED THE FEDERAL QUESTION ON THE MERITS AGAINST
THE HABEAS PETITIONER, HE COULD RETURN TO THE FEDERAL COURT ON HABEAS
AND THERE RELITIGATE THE QUESTION, ELSE A RULE OF TIMING WOULD BECOME A
RULE CIRCUMSCRIBING THE POWER OF THE FEDERAL COURTS ON HABEAS, IN
DEFIANCE OF UNMISTAKABLE CONGRESSIONAL INTENT.  AND SO THIS COURT HAS
CONSISTENTLY HELD, SAVE ONLY IN FRANK V. MANGUM, 237 U.S. 309.  IN THAT
CASE, THE STATE SUPREME COURT HAD REJECTED ON THE MERITS PETITIONER'S
CONTENTION OF MOB DOMINATION AT HIS TRIAL, AND THIS COURT HELD THAT
HABEAS WOULD NOT LIE BECAUSE THE STATE HAD AFFORDED PETITIONER
CORRECTIVE PROCESS.  HOWEVER, THE DECISION SEEMS GROUNDED NOT IN ANY
WANT OF POWER, FOR THE COURT DESCRIBED THE FEDERAL COURTS' HABEAS
POWERS IN THE BROADEST TERMS, 237 U.S., AT 330-331, BUT RATHER IN A
NARROW CONCEPTION OF DUE PROCESS IN STATE CRIMINAL JUSTICE.  THE COURT
FELT THAT SO LONG AS FRANK HAD HAD AN OPPORTUNITY TO CHALLENGE HIS
CONVICTION IN SOME IMPARTIAL TRIBUNAL, SUCH AS THE STATE SUPREME COURT,
HE HAD BEEN AFFORDED THE PROCESS HE WAS CONSTITUTIONALLY DUE. 

THE MAJORITY'S POSITION IN FRANK, HOWEVER, WAS SUBSTANTIALLY
REPUDIATED IN MOORE V. DEMPSEY, 261 U.S. 86, A CASE ALMOST IDENTICAL IN
ALL PERTINENT RESPECTS TO FRANK.  MR. JUSTICE HOLMES, WRITING FOR THE
COURT IN MOORE (HE HAD WRITTEN THE DISSENTING OPINION IN FRANK), SAID:
"IF IN FACT A TRIAL IS DOMINATED BY A MOB SO THAT THERE IS AN ACTUAL
INTERFERENCE WITH THE COURSE OF JUSTICE, THERE IS A DEPARTURE FROM DUE
PROCESS OF LAW; ...  IF THE STATE COURTS FAILED TO CORRECT THE WRONG,
... PERFECTION IN THE MACHINERY FOR CORRECTION  ...  CANNOT PREVENT
THIS COURT FROM SECURING TO THE PETITIONERS THEIR CONSTITUTIONAL
RIGHTS."  261 U.S., AT 90-91.  IT WAS SETTLED IN MOORE, RESTORING WHAT
EVIDENTLY HAD BEEN THE ASSUMPTION UNTIL FRANK, SEE, E.G., COOK V. HART,
146 U.S. 183, 194-195; AND CASES CITED IN NOTE 28, SUPRA, THAT THE
STATE COURTS' VIEW OF THE MERITS WAS NOT ENTITLED TO CONCLUSIVE
WEIGHT.  WE HAVE NOT DEVIATED FROM THAT POSITION.  (FN30)  THUS, WE
HAVE LEFT THE WEIGHT TO BE GIVEN A PARTICULAR STATE COURT ADJUDICATION
OF A FEDERAL CLAIM LATER PRESSED ON HABEAS SUBSTANTIALLY IN THE
DISCRETION OF THE FEDERAL DISTRICT COURT:  "THE STATE ADJUDICATION
CARRIES THE WEIGHT THAT FEDERAL PRACTICE GIVES TO THE CONCLUSION OF A
COURT  ...  OF ANOTHER JURISDICTION ON FEDERAL CONSTITUTIONAL ISSUES. 
IT IS NOT RES JUDICATA."  BROWN V. ALLEN, SUPRA, AT 458 (OPINION OF MR.
JUSTICE REED).  "  ...  NO BINDING WEIGHT IS TO BE ATTACHED TO THE
STATE DETERMINATION.  THE CONGRESSIONAL REQUIREMENT IS GREATER.  THE
STATE COURT CANNOT HAVE THE LAST SAY WHEN IT, THOUGH ON FAIR
CONSIDERATION AND WHAT PROCEDURALLY MAY BE DEEMED FAIRNESS, MAY HAVE
MISCONCEIVED A FEDERAL CONSTITUTIONAL RIGHT."  344 U.S., AT 508
(OPINION OF MR. JUSTICE FRANKFURTER).  EVEN IF THE STATE COURT
ADJUDICATION TURNS WHOLLY ON PRIMARY, HISTORICAL FACTS, THE FEDERAL
DISTRICT COURT HAS A BROAD POWER ON HABEAS TO HOLD AN EVIDENTIARY
HEARING AND DETERMINE THE FACTS.  (FN31) 

THE BREADTH OF THE FEDERAL COURTS' POWER OF INDEPENDENT ADJUDICATION
ON HABEAS CORPUS STEMS FROM THE VERY NATURE OF THE WRIT, AND CONFORMS
WITH THE CLASSIC ENGLISH PRACITCE.  (FN32)  AS PUT BY MR. JUSTICE
HOLMES IN HIS DISSENTING OPINION IN FRANK V. MANGUM, SUPRA, AT 348:
"IF THE PETITION DISCLOSES FACTS THAT AMOUNT TO A LOSS OF JURISDICTION
IN THE TRIAL COURT, JURISDICTION COULD NOT BE RESTORED BY ANY DECISION
ABOVE."  IT IS OF THE HISTORICAL ESSENCE OF HABEAS CORPUS THAT IT LIES
TO TEST PROCEEDINGS SO FUNDAMENTALLY LAWLESS THAT IMPRISONMENT PURSUANT
TO THEM IS NOT MERELY ERRONEOUS BUT VOID.  HENCE, THE FAMILIAR
PRINCIPLE THAT RES JUDICATA IS INAPPLICABLE IN HABEAS PROCEEDINGS, SEE,
E.G., DARR V. BURFORD, 339 U.S. 200, 214; SALINGER V. LOISEL, 265 U.S.
224, 230; FRANK V. MANGUM, 237 U.S. 309, 334; CHURCH, HABEAS CORPUS
(1884), SEC. 386, IS REALLY BUT AN INSTANCE OF THE LARGER PRINCIPLE
THAT VOID JUDGMENTS MAY BE COLLATERALLY IMPEACHED.  RESTATEMENT,
JUDGMENTS (1942), SECS. 7, 11; NOTE, RES JUDICATA, 65 HARV. L. REV.
818, 850 (1952).  CF. WINDSOR V. MCVEIGH, 93 U.S. 274, 282-283.  SO
ALSO, THE TRADITIONAL CHARACTERIZATION OF THE WRIT OF HABEAS CORPUS AS
AN ORIGINAL (SAVE PERHAPS WHEN ISSUED BY THIS COURT (FN33) ) CIVIL
REMEDY FOR THE ENFORCEMENT OF THE RIGHT TO PERSONAL LIBERTY, (FN34)
RATHER THAN AS A STAGE OF THE STATE CRIMINAL PROCEEDINGS OR AS AN
APPEAL THEREFROM, EMPHASIZES THE INDEPENDENCE OF THE FEDERAL HABEAS
PROCEEDINGS FROM WHAT HAS GONE BEFORE.  THIS IS NOT TO SAY THAT A STATE
CRIMINAL JUDGMENT RESTING ON A CONSTITUTIONAL ERROR IS VOID FOR ALL
PURPOSES.  BUT CONVENTIONAL NOTIONS OF FINALITY IN CRIMINAL LITIGATION
CANNOT BE PERMITTED TO DEFEAT THE MANIFEST FEDERAL POLICY THAT FEDERAL
CONSTITUTIONAL RIGHTS OF PERSONAL LIBERTY SHALL NOT BE DENIED WITHOUT
THE FULLEST OPPORTUNITY FOR PLENARY FEDERAL JUDICIAL REVIEW.    DESPITE
THE COURT'S REFUSAL TO GIVE BINDING WEIGHT TO STATE COURT
DETERMINATIONS OF THE MERITS IN HABEAS, IT HAS NOT INFREQUENTLY
SUGGESTED THAT WHERE THE STATE COURT DECLINES TO REACH THE MERITS
BECAUSE OF A PROCEDURAL DEFAULT, THE FEDERAL COURTS MAY BE FORECLOSED
FROM GRANTING THE RELIEF SOUGHT ON HABEAS CORPUS.  (FN35)  BUT THE
COURT'S PRACTICE IN THIS AREA HAS BEEN FAR FROM UNIFORM, (FN36) AND
EVEN GREATER DIVERGENCY HAS CHARACTERIZED THE PRACTICE OF THE LOWER
FEDERAL COURTS.  (FN37) 

FOR THE PRESENT, HOWEVER, IT SUFFICES TO NOTE THAT RARELY, IF EVER,
HAS THE COURT PREDICATED ITS DEFERENCE TO STATE PROCEDURAL RULES ON A
WANT OF POWER TO ENTERTAIN A HABEAS APPLICATION WHERE A PROCEDURAL
DEFAULT WAS COMMITTED BY THE DEFENDANT IN THE STATE COURTS.  TYPICALLY,
THE COURT, LIKE THE DISTRICT COURT IN THE INSTANT CASE, HAS APPROACHED
THE PROBLEM AS AN ASPECT OF THE RULE REQUIRING EXHAUSTION OF STATE
REMEDIES, WHICH IS NOT A RULE DISTRIBUTING POWER AS BETWEEN THE STATE
AND FEDERAL COURTS.  SEE PP. 417-420, SUPRA.  THAT WAS THE APPROACH
TAKEN IN THE SPENCER AND DANIELS DECISIONS, THE MOST EMPHATIC IN THEIR
STATEMENT OF DEFERENCE TO STATE RULES OF PROCEDURE.  THE SAME
CONSIDERATIONS OF COMITY THAT LED THE COURT TO REFUSE RELIEF TO ONE WHO
HAD NOT YET AVAILED HIMSELF OF HIS STATE REMEDIES LIKEWISE PROMPTED THE
REFUSAL OF RELIEF TO ONE WHO HAD INEXCUSABLY FAILED TO TENDER THE
FEDERAL QUESTIONS TO THE STATE COURTS.  EITHER SITUATION POSES A THREAT
TO THE ORDERLY ADMINISTRATION OF CRIMINAL JUSTICE THAT OUGHT IF
POSSIBLE TO BE AVERTED.  WHETHER IN FACT THE CONDUCT OF A SPENCER OR A
DANIELS WAS INEXCUSABLE IN THIS SENSE IS BESIDE THE POINT, AS IS THE
ARGUABLE ILLOGICALITY OF TURNING A RULE OF TIMING INTO A DOCTRINE OF
FORFEITURES.  THE POINT IS THAT THE COURT, BY RELYING UPON A RULE OF
DISCRETION, AVOWEDLY FLEXIBLE, FRISBIE V. COLLINS, 342 U.S. 519,
YIELDING ALWAYS TO "EXCEPTIONAL CIRCUMSTANCES," BOWEN V. JOHNSTON, 306
U.S. 19, 27, HAS REFUSED TO CONCEDE JURISDICTIONAL SIGNIFICANCE TO THE
ABORTIVE STATE COURT PROCEEDING. 

       III. 

WE HAVE REVIEWED THE DEVELOPMENT OF HABEAS CORPUS AT SOME LENGTH
BECAUSE THE QUESTION OF THE INSTANT CASE HAS OBVIOUS IMPORTANCE TO THE
PROPER ACCOMMODATION OF A GREAT CONSTITUTIONAL PRIVILEGE AND THE
REQUIREMENTS OF THE FEDERAL SYSTEM.  OUR SURVEY DISCLOSES NOTHING TO
SUGGEST THAT THE FEDERAL DISTRICT COURT LACKED THE POWER TO ORDER NOIA
DISCHARGED BECAUSE OF A PROCEDURAL FORFEITURE HE MAY HAVE INCURRED
UNDER STATE LAW.  ON THE CONTRARY, THE NATURE OF THE WRIT AT COMMON
LAW, THE LANGUAGE AND PURPOSE OF THE ACT OF FEBRUARY 5, 1867, AND THE
COURSE OF DECISIONS IN THIS COURT EXTENDING OVER NEARLY A CENTURY ARE
WHOLLY IRRECONCILABLE WITH SUCH A LIMITATION.  AT THE TIME THE
PRIVILEGE OF THE WRIT WAS WRITTEN INTO THE FEDERAL CONSTITUTION IT WAS
SETTLED THAT THE WRIT LAY TO TEST ANY RESTRAINT CONTRARY TO FUNDAMENTAL
LAW, WHICH IN ENGLAND STEMMED ULTIMATELY FROM MAGNA CHARTA BUT IN THIS
COUNTRY WAS EMBODIED IN THE WRITTEN CONSTITUTION.  CONGRESS IN 1867
SOUGHT TO PROVIDE A FEDERAL FORUM FOR STATE PRISONERS HAVING
CONSTITUTIONAL DEFENSES BY EXTENDING THE HABEAS CORPUS POWERS OF THE
FEDERAL COURTS TO THEIR CONSTITUTIONAL MAXIMUM.  OBEDIENT TO THIS
PURPOSE, WE HAVE CONSISTENTLY HELD THAT FEDERAL COURT JURISDICTION IS
CONFERRED BY THE ALLEGATION OF AN UNCONSTITUTIONAL RESTRAINT AND IS NOT
DEFEATED BY ANYTHING THAT MAY OCCUR IN THE STATE COURT PROCEEDINGS. 
STATE PROCEDURAL RULES PLAINLY MUST YIELD TO THIS OVERRIDING FEDERAL
POLICY. 

A NUMBER OF ARGUMENTS ARE ADVANCED AGAINST THIS CONCLUSION.  ONE,
WHICH CONCEDES THE BREADTH OF FEDERAL HABEAS POWER, IS THAT A STATE
PRISONER WHO FORFEITS HIS OPPORTUNITY TO VINDICATE FEDERAL DEFENSES IN
THE STATE COURT HAS BEEN GIVEN ALL THE PROCESS THAT IS CONSTITUTIONALLY
DUE HIM, AND HENCE IS NOT RESTRAINED CONTRARY TO THE CONSTITUTION.  BUT
THIS WHOLLY MISCONCEIVES THE SCOPE OF DUE PROCESS OF LAW, WHICH
COMPREHENDS NOT ONLY THE RIGHT TO BE HEARD BUT ALSO A NUMBER OF
EXPLICIT PROCEDURAL RIGHTS - FOR EXAMPLE, THE RIGHT NOT TO BE CONVICTED
UPON EVIDENCE WHICH INCLUDES ONE'S COERCED CONFESSION - DRAWN FROM THE
BILL OF RIGHTS.  AS MR. JUSTICE HOLMES EXPLAINED IN MOORE V. DEMPSEY,
SEE PP. 421-422, SUPRA, A MOB-DOMINATED TRIAL IS NO LESS A DENIAL OF
DUE PROCESS BECAUSE THE STATE SUPREME COURT BELIEVED THAT THE TRIAL WAS
ACTUALLY A FAIR ONE.  A FORTIORI, DUE PROCESS DENIED IN PROCEEDINGS
LEADING TO CONVICTION IS NOT RESTORED JUST BECAUSE THE STATE COURT
DECLINES TO ADJUDICATE THE CLAIMED DENIAL ON THE MERITS. 

A VARIANT OF THIS ARGUMENT IS THAT IF THE STATE COURT DECLINES TO
ENTERTAIN A FEDERAL DEFENSE BECAUSE OF A PROCEDURAL DEFAULT, THEN THE
PRISONER'S CUSTODY IS ACTUALLY DUE TO THE DEFAULT RATHER THAN TO THE
UNDERLYING CONSTITUTIONAL INFRINGEMENT, SO THAT HE IS NOT IN CUSTODY IN
VIOLATION OF FEDERAL LAW.  (FN38)  BUT THIS IGNORES THE IMPORTANT
DIFFERENCE BETWEEN RIGHTS AND PARTICULAR REMEDIES.  CF. DOUGLAS V.
JEANNETTE, 319 U.S. 157; STEFANELLI V. MINARD, 342 U.S. 117; WOLF V.
COLORADO, 338 U.S. 25.  A DEFENDANT BY COMMITTING A PROCEDURAL DEFAULT
MAY BE DEBARRED FROM CHALLENGING HIS CONVICTION IN THE STATE COURTS
EVEN ON FEDERAL CONSTITUTIONAL GROUNDS.  BUT A FORFEITURE OF REMEDIES
DOES NOT LEGITIMIZE THE UNCONSTITUTIONAL CONDUCT BY WHICH HIS
CONVICTION WAS PROCURED.  WOULD NOIA'S FAILURE TO APPEAL HAVE PRECLUDED
HIM FROM BRINGING ACTION UNDER THE CIVIL RIGHTS ACTS AGAINST HIS
INQUISITORS?  THE ACT OF FEBRUARY 5, 1867, LIKE THE CIVIL RIGHTS ACTS,
WAS INTENDED TO FURNISH AN INDEPENDENT, COLLATERAL REMEDY FOR CERTAIN
PRIVATIONS OF LIBERTY.  THE CONCEPTUAL DIFFICULTY OF REGARDING A
DEFAULT AS EXTINGUISHING THE SUBSTANTIVE RIGHT IS INCREASED WHERE, AS
IN NOIA'S CASE, THE DEFAULT FORECLOSES EXTRAORDINARY REMEDIES.  IN WHAT
SENSE IS NOIA'S CUSTODY NOT IN VIOLATION OF FEDERAL LAW SIMPLY BECAUSE
NEW YORK WILL NOT ALLOW HIM TO CHALLENGE IT ON CORAM NOBIS OR ON
DELAYED APPEAL?  BUT CONCEPTUAL PROBLEMS ASIDE, IT SHOULD BE OBVIOUS
THAT TO TURN THE INSTANT CASE ON THE MEANING OF "CUSTODY IN VIOLATION
OF THE CONSTITUTION" IS TO REASON IN CIRCLES.  THE VERY QUESTION WE
FACE IS HOW COMPLETELY FEDERAL REMEDIES FALL WITH THE STATE REMEDIES;
WHEN WE HAVE ANSWERED THIS, WE SHALL KNOW IN WHAT SENSE CUSTODY MAY BE
RENDERED LAWFUL BY A SUPERVENING PROCEDURAL DEFAULT. 

IT IS A FAMILIAR PRINCIPLE THAT THIS COURT WILL DECLINE TO REVIEW
STATE COURT JUDGMENTS WHICH REST ON INDEPENDENT AND ADEQUATE STATE
GROUNDS, NOTWITHSTANDING THE COPRESENCE OF FEDERAL GROUNDS.  SEE, E.G.,
NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S. 449; FOX FILM CORP. V.
MULLER, 296 U.S. 207.  SECTION 25 OF THE JUDICIARY ACT OF 1789, C. 20,
1 STAT. 85-87, DENIED THIS COURT POWER TO BASE THE REVERSAL OF A STATE
COURT DECISION ON ANY ERROR OTHER "THAN SUCH AS  ...  IMMEDIATELY
RESPECTS  ... QUESTIONS OF VALIDITY OR CONSTRUCTION OF THE SAID
(FEDERAL) CONSTITUTION, TREATIES, STATUTES, COMMISSIONS, OR AUTHORITIES
IN DISPUTE."  THE DELETION OF THE EXPRESS RESTRICTION BY THE JUDICIARY
ACT OF FEBRUARY 5, 1867, C. 28, SEC. 2, 14 STAT. 386-387, DID NOT
ENLARGE THIS COURT'S POWER IN THAT REGARD.  MURDOCK V. MEMPHIS, 20
WALL.  590.  MURDOCK WAS A CASE INVOLVING STATE SUBSTANTIVE GROUNDS,
BUT THE PRINCIPLE IS ALSO APPLICABLE IN CASES INVOLVING PROCEDURAL
GROUNDS.  SEE, E.G., HERB V. PITCAIRN, 324 U.S. 117; DAVIS V. WECHSLER,
263 U.S. 22; WARD V. BOARD OF COUNTY COMM'RS, 253 U.S. 17.  THUS, A
DEFAULT SUCH AS NOIA'S, IF DEEMED ADEQUATE AND INDEPENDENT (A QUESTION
ON WHICH WE INTIMATE NO VIEW), WOULD CUT OFF REVIEW BY THIS COURT OF
THE STATE CORAM NOBIS PROCEEDING IN WHICH THE NEW YORK COURT OF APPEALS
REFUSED HIM RELIEF.  IT IS CONTENDED THAT IT FOLLOWS FROM THIS THAT THE
REMEDY OF FEDERAL HABEAS CORPUS IS LIKEWISE CUT OFF.  (FN39) 

THE FATAL WEAKNESS OF THIS CONTENTION IS ITS FAILURE TO RECOGNIZE
THAT THE ADEQUATE STATE-GROUND RULE IS A FUNCTION OF THE LIMITATIONS OF
APPELLATE REVIEW.  MOST OF THE OPINION IN THE MURDOCK CASE IS DEVOTED
TO DEMONSTRATING THE COURT'S LACK OF JURISDICTION ON DIRECT REVIEW TO
DECIDE QUESTIONS OF STATE LAW IN CASES ALSO RAISING FEDERAL QUESTIONS. 
IT FOLLOWED FROM THIS HOLDING THAT IF THE STATE QUESTION WAS
DISPOSITIVE OF THE CASE, THE COURT COULD NOT DECIDE THE FEDERAL
QUESTION.  THE FEDERAL QUESTION WAS MOOT; NOTHING TURNED ON ITS
RESOLUTION.  AND SO WE HAVE HELD THAT THE ADEQUATE STATE-GROUND RULE IS
A CONSEQUENCE OF THE COURT'S OBLIGATION TO REFRAIN FROM RENDERING
ADVISORY OPINIONS OR PASSING UPON MOOT QUESTIONS.  (FN40) 

BUT WHILE OUR APPELLATE FUNCTION IS CONCERNED ONLY WITH THE JUDGMENTS
OR DECREES OF STATE COURTS, THE HABEAS CORPUS JURISDICTION OF THE LOWER
FEDERAL COURTS IS NOT SO CONFINED.  THE JURISDICTIONAL PREREQUISITE IS
NOT THE JUDGMENT OF A STATE COURT BUT DETENTION SIMPLICITER.  THE
ENTIRE COURSE OF DECISIONS IN THIS COURT ELABORATING THE RULE OF
EXHAUSTION OF STATE REMEDIES IS WHOLLY INCOMPATIBLE WITH THE
PROPOSITION THAT A STATE COURT JUDGMENT IS REQUIRED TO CONFER FEDERAL
HABEAS JURISDICTION.  AND THE BROAD POWER OF THE FEDERAL COURTS UNDER
28 U.S.C. SEC. 2243 SUMMARILY TO HEAR THE APPLICATION AND TO "DETERMINE
THE FACTS, AND DISPOSE OF THE MATTER AS LAW AND JUSTICE REQUIRE," IS
HARDLY CHARACTERISTIC OF AN APPELLATE JURISDICTION.  HABEAS LIES TO
ENFORCE THE RIGHT OF PERSONAL LIBERTY; WHEN THAT RIGHT IS DENIED AND A
PERSON CONFINED, THE FEDERAL COURT HAS THE POWER TO RELEASE HIM. 
INDEED, IT HAS NO OTHER POWER; IT CANNOT REVISE THE STATE COURT
JUDGMENT; IT CAN ACT ONLY ON THE BODY OF THE PETITIONER.  MEDLEY,
PETITIONER, 134 U.S. 160, 173. 

TO BE SURE, THIS MAY NOT BE THE ENTIRE ANSWER TO THE CONTENTION THAT
THE ADEQUATE STATE-GROUND PRINCIPLE SHOULD APPLY TO THE FEDERAL COURTS
ON HABEAS CORPUS AS WELL AS TO THE SUPREME COURT ON DIRECT REVIEW OF
STATE JUDGMENTS.  THE MURDOCK DECISION MAY BE SUPPORTED NOT ONLY BY THE
FACTOR OF MOOTNESS, BUT IN ADDITION BY CERTAIN CHARACTERISTICS OF THE
FEDERAL SYSTEM.  THE FIRST QUESTION THE COURT HAD TO DECIDE IN MURDOCK
WAS WHETHER IT HAD THE POWER TO REVIEW STATE QUESTIONS IN CASES ALSO
RAISING FEDERAL QUESTIONS.  IT HELD THAT IT DID NOT, THUS AFFIRMING THE
INDEPENDENCE OF THE STATES IN MATTERS WITHIN THE PROPER SPHERE OF THEIR
LAWMAKING POWER FROM FEDERAL JUDICIAL INTERFERENCE.  FOR THE FEDERAL
COURTS TO REFUSE TO GIVE EFFECT IN HABEAS PROCEEDINGS TO STATE
PROCEDURAL DEFAULTS MIGHT CONCEIVABLY HAVE SOME EFFECT UPON THE STATES'
REGULATION OF THEIR CRIMINAL PROCEDURES.  BUT THE PROBLEM IS CRUCIALLY
DIFFERENT FROM THAT POSED IN MURDOCK OF THE FEDERAL COURTS' DECIDING
QUESTIONS OF SUBSTANTIVE STATE LAW.  IN NOIA'S CASE THE ONLY RELEVANT
SUBSTANTIVE LAW IS FEDERAL - THE FOURTEENTH AMENDMENT.  STATE LAW
APPEARS ONLY IN THE PROCEDURAL FRAMEWORK FOR ADJUDICATING THE
SUBSTANTIVE FEDERAL QUESTION.  THE PARAMOUNT INTEREST IS FEDERAL.  CF.
DICE V. AKRON, C.&Y.R. CO., 342 U.S. 359.  THAT IS NOT TO SAY THAT THE
STATES HAVE NOT A SUBSTANTIAL INTEREST IN EXACTING COMPLIANCE WITH
THEIR PROCEDURAL RULES FROM CRIMINAL DEFENDANTS ASSERTING FEDERAL
DEFENSES.  OF COURSE ORDERLY CRIMINAL PROCEDURE IS A DESIDERATUM, AND
OF COURSE THERE MUST BE SANCTIONS FOR THE FLOUTING OF SUCH PROCEDURE. 
BUT THAT STATE INTEREST "COMPETES  ...  AGAINST AN IDEAL  ...  THE
IDEAL OF FAIR PROCEDURE."  SCHAEFER, FEDERALISM AND STATE CRIMINAL
PROCEDURE, 70 HARV. L. REV. 1, 5 (1956).  AND THE ONLY CONCRETE IMPACT
THE ASSUMPTION OF FEDERAL HABEAS JURISDICTION IN THE FACE OF A
PROCEDURAL DEFAULT HAS ON THE STATE INTEREST WE HAVE DESCRIBED, IS THAT
IT PREVENTS THE STATE FROM CLOSING OFF THE CONVICTED DEFENDANT'S LAST
OPPORTUNITY TO VINDICATE HIS CONSTITUTIONAL RIGHTS, THEREBY PUNISHING
HIM FOR HIS DEFAULT AND DETERRING OTHERS WHO MIGHT COMMIT SIMILAR
DEFAULTS IN THE FUTURE. 

SURELY THIS STATE INTEREST IN AN AIRTIGHT SYSTEM OF FORFEITURES IS OF
A DIFFERENT ORDER FROM THAT, VINDICATED IN MURDOCK, IN THE AUTONOMY OF
STATE LAW WITHIN THE PROPER SPHERE OF ITS SUBSTANTIVE REGULATION.  THE
DIFFERENCE IS ILLUSTRATED IN THE SETTLED PRINCIPLE THAT IF A PRISONER
IS DETAINED LAWFULLY UNDER ONE COUNT OF THE INDICTMENT, HE CANNOT
CHALLENGE THE LAWFULNESS OF A SECOND COUNT ON FEDERAL HABEAS.  MCNALLY
V. HILL, 293 U.S. 131.  FOR THE FEDERAL COURT TO ORDER THE RELEASE OF
SUCH A PRISONER WOULD BE TO NULLIFY A PROCEEDING - THAT UNDER THE FIRST
COUNT - WHOLLY OUTSIDE THE ORBIT OF FEDERAL INTEREST.  CONTRARIWISE,
THE ONLY COUNT UNDER WHICH NOIA WAS CONVICTED AND IMPRISONED IS
ADMITTED TO BE VITIATED BY FORCE OF FEDERAL LAW. 

CERTAINLY THIS COURT HAS DIFFERENTIATED THE TWO SITUATIONS IN ITS
APPLICATION OF THE ADEQUATE STATE-GROUND RULE.  WHILE IT HAS DEFERRED
TO STATE SUBSTANTIVE GROUNDS SO LONG AS THEY ARE NOT PATENTLY EVASIVE
OF OR DISCRIMINATORY AGAINST FEDERAL RIGHTS, IT HAS SOMETIMES REFUSED
TO DEFER TO STATE PROCEDURAL GROUNDS ONLY BECAUSE THEY MADE BURDENSOME
THE VINDICATION OF FEDERAL RIGHTS.  (FN41)  THAT THE COURT NEVERTHELESS
ORDINARILY GIVES EFFECT TO STATE PROCEDURAL GROUNDS MAY BE ATTRIBUTED
TO CONSIDERATIONS WHICH ARE PECULIAR TO THE COURT'S ROLE AND FUNCTION
AND HAVE NO RELEVANCE TO HABEAS CORPUS PROCEEDINGS IN THE FEDERAL
DISTRICT COURTS:  THE UNFAMILIARITY OF MEMBERS OF THIS COURT WITH THE
MINUTIAE OF 50 STATES' PROCEDURES; THE WEB OF RULES AND STATUTES THAT
CIRCUMSCRIBES OUR APPELLATE JURISDICTION; AND THE INHERENT AND
HISTORICAL LIMITATIONS OF SUCH A JURISDICTION. 

A PRACTICAL APPRAISAL OF THE STATE INTEREST HERE INVOLVED PLAINLY
DOES NOT JUSTIFY THE FEDERAL COURTS' ENFORCING ON HABEAS CORPUS A
DOCTRINE OF FORFEITURES UNDER THE GUISE OF APPLYING THE ADEQUATE STATE
GROUND RULE.  WE FULLY GRANT, SEE P. 438, INFRA, THAT THE EXIGENCIES OF
FEDERALISM WARRANT A LIMITATION WHEREBY THE FEDERAL JUDGE HAS THE
DISCRETION TO DENY RELIEF TO ONE WHO HAS DELIBERATELY SOUGHT TO SUBVERT
OR EVADE THE ORDERLY ADJUDICATION OF HIS FEDERAL DEFENSES IN THE STATE
COURTS.  SURELY NO STRICTER RULE IS A REALISTIC NECESSITY.  A MAN UNDER
CONVICTION FOR CRIME HAS AN OBVIOUS INDUCEMENT TO DO HIS VERY BEST TO
KEEP HIS STATE REMEDIES OPEN, AND NOT STAKE HIS ALL ON THE OUTCOME OF A
FEDERAL HABEAS PROCEEDING WHICH, IN MANY RESPECTS, MAY BE LESS
ADVANTAGEOUS TO HIM THAN A STATE COURT PROCEEDING.  SEE ROGERS V.
RICHMOND, 365 U.S. 534, 547-548.  AND IF BECAUSE OF INADVERTENCE OR
NEGLECT HE RUNS AFOUL OF A STATE PROCEDURAL REQUIREMENT, AND AND
THEREBY FORFEITS HIS STATE REMEDIES, APPELLATE AND COLLATERAL, AS WELL
AS DIRECT REVIEW THEREOF IN THIS COURT, THOSE CONSEQUENCES SHOULD BE
SUFFICIENT TO VINDICATE THE STATE'S VALID INTEREST IN ORDERLY
PROCEDURE.  WHATEVER RESIDUUM OF STATE INTEREST THERE MAY BE UNDER SUCH
CIRCUMSTANCES IS MANIFESTLY INSUFFICIENT IN THE FACE OF THE FEDERAL
POLICY, DRAWN FROM THE ANCIENT PRINCIPLES OF THE WRIT OF HABEAS CORPUS,
EMBODIED BOTH IN THE FEDERAL CONSTITUTION AND IN THE HABEAS CORPUS
PROVISIONS OF THE JUDICIAL CODE, AND CONSISTENTLY UPHELD BY THIS COURT,
OF AFFORDING AN EFFECTIVE REMEDY FOR RESTRAINTS CONTRARY TO THE
CONSTITUTION.  FOR THESE SEVERAL REASONS WE REJECT AS UNSOUND IN
PRINCIPLE, AS WELL AS NOT SUPPORTED BY AUTHORITY, THE SUGGESTION THAT
THE FEDERAL COURTS ARE WITHOUT POWER TO GRANT HABEAS RELIEF TO AN
APPLICANT WHOSE FEDERAL CLAIMS WOULD NOT BE HEARD ON DIRECT REVIEW IN
THIS COURT BECAUSE OF A PROCEDURAL DEFAULT FURNISHING AN ADEQUATE AND
INDEPENDENT GROUND OF STATE DECISION. 

WHAT WE HAVE SAID SUBSTANTIALLY DISPOSES OF THE FURTHER CONTENTION
THAT 28 U.S.C.  SEC. 2254 EMBODIES A DOCTRINE OF FORFEITURES AND CUTS
OFF RELIEF WHEN THERE HAS BEEN A FAILURE TO EXHAUST STATE REMEDIES NO
LONGER AVAILABLE AT THE TIME HABEAS IS SOUGHT.  THIS CONTENTION IS
REFUTED BY THE LANGUAGE OF THE STATUTE AND BY ITS HISTORY.  (FN42)  IT
WAS ENACTED TO CODIFY THE JUDICIALLY EVOLVED RULE OF EXHAUSTION,
PARTICULARLY AS FORMULATED IN EX PARTE HAWK, 321 U.S. 114.  SEE THE
REVIEW OF THE LEGISLATIVE HISTORY IN DARR V. BURFORD, 339 U.S. 200, 211
213.  NOTHING IN THE HAWK OPINION POINTS TO PAST EXHAUSTION.  VERY
LITTLE SUPPORT CAN BE FOUND IN THE LONG COURSE OF PREVIOUS DECISIONS BY
THIS COURT ELABORATING THE RULE OF EXHAUSTION FOR THE PROPOSITION THAT
IT WAS REGARDED AT THE TIME OF THE REVISION OF THE JUDICIAL CODE AS
JURISDICTIONAL RATHER THAN MERELY AS A RULE ORDERING THE STATE AND
FEDERAL PROCEEDINGS SO AS TO ELIMINATE UNNECESSARY FEDERAL-STATE
FRICTION.  THERE IS THUS NO WARRANT FOR ATTRIBUTING TO CONGRESS, IN THE
TEETH OF THE LANGUAGE OF SEC. 2254, INTENT TO WORK A RADICAL INNOVATION
IN THE LAW OF HABEAS CORPUS.  WE HOLD THAT SEC. 2254 IS LIMITED IN ITS
APPLICATION TO FAILURE TO EXHAUST STATE REMEDIES STILL OPEN TO THE
HABEAS APPLICANT AT THE TIME HE FILES HIS APPLICATION IN FEDERAL
COURT.  (FN43)  PARENTHETICALLY, WE NOTE THAT OUR HOLDING IN IRVIN V.
DOWD, 359 U.S. 394, IS NOT INCONSISTENT.  OUR HOLDING THERE WAS THAT
SINCE THE INDIANA SUPREME COURT HAD REACHED THE MERITS OF IRVIN'S
FEDERAL CLAIM, THE DISTRICT COURT WAS NOT BARRED BY SEC.  2254 FROM
DETERMINING THE MERITS OF IRVIN'S CONSTITUTIONAL CONTENTIONS. 

                                  IV. 

NOIA TIMELY SOUGHT AND WAS DENIED CERTIORARI HERE FROM THE ADVERSE
DECISION OF THE NEW YORK COURT OF APPEALS ON HIS CORAM NOBIS
APPLICATION, AND THEREFORE THE CASE DOES NOT NECESSARILY DRAW IN
QUESTION THE CONTINUED VITALITY OF THE HOLDING IN DARR V. BURFORD,
SUPRA, THAT A STATE PRISONER MUST ORDINARILY SEEK CERTIORARI IN THIS
COURT AS A PRECONDITION OF APPLYING FOR FEDERAL HABEAS CORPUS.  BUT
WHAT WE HOLD TODAY NECESSARILY OVERRULES DARR V. BURFORD TO THE EXTENT
IT MAY BE THOUGHT TO HAVE BARRED A STATE PRISONER FROM FEDERAL HABEAS
RELIEF IF HE HAD FAILED TIMELY TO SEEK CERTIORARI IN THIS COURT FROM AN
ADVERSE STATE DECISION.  FURTHERMORE, OUR DECISION TODAY AFFECTS ALL
PROCEDURAL HURDLES TO THE ACHIEVEMENT OF SWIFT AND IMPERATIVE JUSTICE
ON HABEAS CORPUS, AND BECAUSE THE HURDLE ERECTED BY DARR V. BURFORD IS
UNJUSTIFIABLE UNDER THE PRINCIPLES WE HAVE EXPRESSED, EVEN INSOFAR AS
IT MAY BE DEEMED MERELY AN ASPECT OF THE STATUTORY REQUIREMENT OF
PRESENT EXHAUSTION, THAT DECISION IN THAT RESPECT ALSO IS HEREBY
OVERRULED. 

THE SOUNDNESS OF THE DECISION WAS QUESTIONED FROM THE BEGINNING.  SEE
POLLOCK, CERTIORARI AND HABEAS CORPUS, 42 J. OF CRIM. L. 356, 357-358,
N. 15, 364 (1951).  SECTION 2254 SPEAKS ONLY OF "REMEDIES AVAILABLE IN
THE COURTS OF THE STATE."  NEVERTHELESS, THE COURT IN DARR V. BURFORD
PUT A GLOSS UPON THESE WORDS TO INCLUDE PETITIONING FOR CERTIORARI IN
THIS COURT, WHICH IS NOT THE COURT OF ANY STATE, AMONG THE REMEDIES
THAT AN APPLICANT MUST EXHAUST BEFORE PROCEEDING IN FEDERAL HABEAS
CORPUS.  IT IS TRUE THAT BEFORE THE ENACTMENT OF SEC. 2254 THE COURT
HAD SPOKEN OF THE OBLIGATION TO SEEK REVIEW IN THIS COURT BEFORE
APPLYING FOR HABEAS.  E.G., BAKER V. GRICE, 169 U.S. 284; MARKUSON V.
BOUCHER, 175 U.S. 184.  BUT THAT WAS AT THE TIME WHEN REVIEW OF STATE
CRIMINAL JUDGMENTS IN THIS COURT WAS BY WRIT OF ERROR.  REVIEW HERE WAS
THUS A STAGE OF THE NORMAL APPELLATE PROCESS.  THE WRIT OF CERTIORARI,
WHICH TODAY PROVIDES THE USUAL MODE OF INVOKING THIS COURT'S APPELLATE
JURISDICTION OF STATE CRIMINAL JUDGMENTS, "IS NOT A MATTER OF RIGHT,
BUT OF SOUND JUDICIAL DISCRETION, AND WILL BE GRANTED ONLY WHERE THERE
ARE SPECIAL AND IMPORTANT REASONS THEREFOR."  SUPREME COURT RULE
19(1).  REVIEW ON CERTIORARI THEREFORE DOES NOT PROVIDE A NORMAL
APPELLATE CHANNEL IN ANY SENSE COMPARABLE TO THE WRIT OF ERROR. 

IT IS ALSO TRUE THAT EX PARTE HAWK, 321 U.S. 114, DECISION CITED IN
THE REVISER'S NOTE TO SEC. 2254, INTIMATED IN DICTUM THAT EXHAUSTION
MIGHT COMPREHEND SEEKING CERTIORARI HERE.  321 U.S., AT 116-117.  BUT
THAT PASSING REFERENCE CANNOT BE EXALTED INTO AN ATTRIBUTION TO
CONGRESS OF A DESIGN PATENTLY BELIED BY THE UNEQUIVOCAL STATUTORY
LANGUAGE. 

THE RATIONALE OF DARR V. BURFORD EMPHASIZED THE VALUES OF COMITY
BETWEEN THE STATE AND FEDERAL COURTS, AND ASSUMED THAT THESE VALUES
WOULD BE REALIZED BY REQUIRING A STATE CRIMINAL DEFENDANT TO AFFORD
THIS COURT AN OPPORTUNITY TO PASS UPON STATE ACTION BEFORE HE MIGHT
SEEK RELIEF IN FEDERAL HABEAS CORPUS.  BUT THE EXPECTATION HAS NOT BEEN
REALIZED IN EXPERIENCE.  ON THE CONTRARY THE REQUIREMENT OF DARR V.
BURFORD HAS PROVED ONLY TO BE AN UNNECESSARILY BURDENSOME STEP IN THE
ORDERLY PROCESSING OF THE FEDERAL CLAIMS OF THOSE CONVICTED OF STATE
CRIMES.  THE GOAL OF PROMPT AND FAIR CRIMINAL JUSTICE HAS BEEN IMPEDED
BECAUSE IN THE OVERWHELMING NUMBER OF CASES THE APPLICATIONS FOR
CERTIORARI HAVE BEEN DENIED FOR FAILURE TO MEET THE STANDARD OF RULE
19.  AND THE DEMANDS UPON OUR TIME IN THE EXAMINATION AND DECISION OF
THE LARGE VOLUME OF PETITIONS WHICH FAIL TO MEET THAT TEST HAVE
UNWARRANTABLY TAXED THE RESOURCES OF THIS COURT.  INDEED, IT HAS
HAPPENED THAT COUNSEL ON ORAL ARGUMENT HAS CONFESSED THAT THE RECORD
WAS INSUFFICIENT TO JUSTIFY OUR CONSIDERATION OF THE CASE BUT THAT HE
HAD FELT COMPELLED TO MAKE THE FUTILE TIME-CONSUMING APPLICATION IN
ORDER TO QUALIFY FOR PROCEEDING IN A FEDERAL DISTRICT COURT ON HABEAS
CORPUS TO MAKE A PROPER RECORD.  BULLOCK V. SOUTH CAROLINA, 365 U.S.
292.  AND SO IN A NUMBER OF CASES THE COURT HAS APPARENTLY EXCUSED
COMPLIANCE WITH THE REQUIREMENT.  SEE, E.G., WESTON V. SIGLER, 361 U.S.
37; BAILEY V. ARKANSAS, 358 U.S. 869; PORET V. SIGLER, 355 U.S. 60;
MASSEY V. MOORE, 348 U.S. 105.  CF. THOMAS V. ARIZONA, 356 U.S. 390,
392, N. 1.  THE SAME PRACTICE HAS SOMETIMES BEEN FOLLOWED IN THE
FEDERAL DISTRICT COURTS.  SEE REITZ, FEDERAL HABEAS CORPUS:
POSTCONVICTION REMEDY FOR STATE PRISONERS, 108 U. OF PA. L. REV. 461,
499 (1960). 

MOREOVER, COMITY DOES NOT DEMAND THAT SUCH A PRICE IN SQUANDERED
JUDICIAL RESOURCES BE PAID; THE NEEDS OF COMITY ARE ADEQUATELY SERVED
IN OTHER WAYS.  THE REQUIREMENT THAT THE HABEAS PETITIONER EXHAUST
STATE COURT REMEDIES AVAILABLE TO HIM WHEN HE APPLIES FOR FEDERAL
HABEAS CORPUS RELIEF GIVES STATE COURTS THE OPPORTUNITY TO PASS UPON
AND CORRECT ERRORS OF FEDERAL LAW IN THE STATE PRISONER'S CONVICTION. 
AND THE AVAILABILITY TO THE STATES OF EVENTUAL REVIEW ON CERTIORARI OF
SUCH DECISIONS OF LOWER FEDERAL COURTS AS MAY GRANT RELIEF IS ALWAYS
OPEN.  OUR FUNCTION OF MAKING THE ULTIMATE ACCOMMODATION BETWEEN STATE
CRIMINAL LAW ENFORCEMENT AND STATE PRISONERS' CONSTITUTIONAL RIGHTS
BECOMES MORE MEANINGFUL WHEN GROUNDED IN THE FULL AND COMPLETE RECORD
WHICH THE LOWER FEDERAL COURTS ON HABEAS CORPUS ARE IN A POSITION TO
PROVIDE. 

           V. 

ALTHOUGH WE HOLD THAT THE JURISDICTION OF THE FEDERAL COURTS ON
HABEAS CORPUS IS NOT AFFECTED BY PROCEDURAL DEFAULTS INCURRED BY THE
APPLICANT DURING THE STATE COURT PROCEEDINGS, WE RECOGNIZE A LIMITED
DISCRETION IN THE FEDERAL JUDGE TO DENY RELIEF TO AN APPLICANT UNDER
CERTAIN CIRCUMSTANCES.  DISCRETION IS IMPLICIT IN THE STATUTORY COMMAND
THAT THE JUDGE, AFTER GRANTING THE WRIT AND HOLDING A HEARING OF
APPROPRIATE SCOPE, "DISPOSE OF THE MATTER AS LAW AND JUSTICE REQUIRE,"
28 U.S.C. SEC. 2243; AND DISCRETION WAS THE FLEXIBLE CONCEPT EMPLOYED
BY THE FEDERAL COURTS IN DEVELOPING THE EXHAUSTION RULE.  FURTHERMORE,
HABEAS CORPUS HAS TRADITIONALLY BEEN REGARDED AS GOVERNED BY EQUITABLE
PRINCIPLES.  UNITED STATES EX REL. SMITH V. BALDI, 344 U.S. 561, 573
(DISSENTING OPINION).  AMONG THEM IS THE PRINCIPLE THAT A SUITOR'S
CONDUCT IN RELATION TO THE MATTER AT HAND MAY DISENTITLE HIM TO THE
RELIEF HE SEEKS.  NARROWLY CIRCUMSCRIBED, IN CONFORMITY TO THE
HISTORICAL ROLE OF THE WRIT OF HABEAS CORPUS AS AN EFFECTIVE AND
IMPERATIVE REMEDY FOR DETENTIONS CONTRARY TO FUNDAMENTAL LAW, THE
PRINCIPLE IS UNEXCEPTIONABLE.  WE THEREFORE HOLD THAT THE FEDERAL
HABEAS JUDGE MAY IN HIS DISCRETION DENY RELIEF TO AN APPLICANT WHO HAS
DELIBERATELY BY-PASSED THE ORDERLY PROCEDURE OF THE STATE COURTS AND IN
SO DOING HAS FORFEITED HIS STATE COURT REMEDIES. 

BUT WE WISH TO MAKE VERY CLEAR THAT THIS GRANT OF DISCRETION IS NOT
TO BE INTERPRETED AS A PERMISSION TO INTRODUCE LEGAL FICTIONS INTO
FEDERAL HABEAS CORPUS.  THE CLASSIC DEFINITION OF WAIVER ENUNCIATED IN
JOHNSON V. ZERBST, 304 U.S. 458, 464 - "AN INTENTIONAL RELINQUISHMENT
OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE" - FURNISHES THE
CONTROLLING STANDARD.  IF A HABEAS APPLICANT, AFTER CONSULTATION WITH
COMPETENT COUNSEL OR OTHERWISE, UNDERSTANDINGLY AND KNOWINGLY FOREWENT
THE PRIVILEGE OF SEEKING TO VINDICATE HIS FEDERAL CLAIMS IN THE STATE
COURTS, WHETHER FOR STRATEGIC, TACTICAL, OR ANY OTHER REASONS THAT CAN
FAIRLY BE DESCRIBED AS THE DELIBERATE BY-PASSING OF STATE PROCEDURES,
THEN IT IS OPEN TO THE FEDERAL COURT ON HABEAS TO DENY HIM ALL RELIEF
IF THE STATE COURTS REFUSED TO ENTERTAIN HIS FEDERAL CLAIMS ON THE
MERITS - THOUGH OF COURSE ONLY AFTER THE FEDERAL COURT HAS SATISFIED
ITSELF, BY HOLDING A HEARING OR BY SOME OTHER MEANS, OF THE FACTS
BEARING UPON THE APPLICANT'S DEFAULT.  CF. PRICE V. JOHNSTON, 334 U.S.
266, 291.  AT ALL EVENTS WE WISH IT CLEARLY UNDERSTOOD THAT THE
STANDARD HERE PUT FORTH DEPENDS ON THE CONSIDERED CHOICE OF THE
PETITIONER.  (FN44)  CF. CARNLEY V. COCHRAN, 369 U.S. 506, 513-517;
MOORE V. MICHIGAN, 355 U.S. 155, 162-165.  A CHOICE MADE BY COUNSEL NOT
PARTICIPATED IN BY THE PETITIONER DOES NOT AUTOMATICALLY BAR RELIEF. 
NOR DOES A STATE COURT'S FINDING OF WAIVER BAR INDEPENDENT
DETERMINATION OF THE QUESTION BY THE FEDERAL COURTS ON HABEAS, FOR
WAIVER AFFECTING FEDERAL RIGHTS IS A FEDERAL QUESTION.  E.G., RICE V.
OLSON, 324 U.S. 786. 

THE APPLICATION OF THE STANDARD WE HAVE ADUMBRATED TO THE FACTS OF
THE INSTANT CASE IS NOT DIFFICULT.  UNDER NO REASONABLE VIEW CAN THE
STATE'S VERSION OF NOIA'S REASON FOR NOT APPEALING SUPPORT AN INFERENCE
OF DELIBERATE BY-PASSING OF THE STATE COURT SYSTEM.  FOR NOIA TO HAVE
APPEALED IN 1942 WOULD HAVE BEEN TO RUN A SUBSTANTIAL RISK OF
ELECTROCUTION.  HIS WAS THE GRISLY CHOICE WHETHER TO SIT CONTENT WITH
LIFE IMPRISONMENT OR TO TRAVEL THE UNCERTAIN AVENUE OF APPEAL WHICH, IF
SUCCESSFUL, MIGHT WELL HAVE LED TO A RETRIAL AND DEATH SENTENCE.  SEE,
E.G., PALKO V. CONNECTICUT, 302 U.S. 319.  HE DECLINED TO PLAY RUSSIAN
ROULETTE IN THIS FASHION.  THIS WAS A CHOICE BY NOIA NOT TO APPEAL, BUT
UNDER THE CIRCUMSTANCES IT CANNOT REALISTICALLY BE DEEMED A MERELY
TACTICAL OR STRATEGIC LITIGATION STEP, OR IN ANY WAY A DELIBERATE
CIRCUMVENTION OF STATE PROCEDURES.  THIS IS NOT TO SAY THAT IN EVERY
CASE WHERE A HEAVIER PENALTY, EVEN THE DEATH PENALTY, IS A RISK
INCURRED BY TAKING AN APPEAL OR OTHERWISE FOREGOING A PROCEDURAL RIGHT,
WAIVER AS WE HAVE DEFINED IT CANNOT BE FOUND.  EACH CASE MUST STAND ON
ITS FACTS.  IN THE INSTANT CASE, THE LANGUAGE OF THE JUDGE IN
SENTENCING NOIA, SEE NOTE 3, SUPRA, MADE THE RISK THAT NOIA, IF
RECONVICTED, WOULD BE SENTENCED TO DEATH, PALPABLE AND INDEED UNUSUALLY
ACUTE. 

                           VI. 

IT SHOULD BE UNNECESSARY TO REPEAT WHAT SO OFTEN HAS BEEN SAID AND
WHAT SO PLAINLY IS THE CASE: THAT THE AVAILABILITY OF THE GREAT WRIT OF
HABEAS CORPUS IN THE FEDERAL COURTS FOR PERSONS IN THE CUSTODY OF THE
STATES OFFENDS NO LEGITIMATE STATE INTEREST IN THE ENFORCEMENT OF
CRIMINAL JUSTICE OR PROCEDURE.  OUR DECISION TODAY SWINGS OPEN NO
PRISON GATES.  TODAY AS ALWAYS FEW INDEED IS THE NUMBER OF STATE
PRISONERS WHO EVENTUALLY WIN THEIR FREEDOM BY MEANS OF FEDERAL HABEAS
CORPUS.  (FN45)  THOSE FEW WHO ARE ULTIMATELY SUCCESSFUL ARE PERSONS
WHOM SOCIETY HAS GRIEVOUSLY WRONGED AND FOR WHOM BELATED LIBERATION IS
LITTLE ENOUGH COMPENSATION.  SURELY NO FAIR-MINDED PERSON WILL CONTEND
THAT THOSE WHO HAVE BEEN DEPRIVED OF THEIR LIBERTY WITHOUT DUE PROCESS
OF LAW OUGHT NEVERTHELESS TO LANGUISH IN PRISON.  NOIA, NO LESS THAN
HIS CODEFENDANTS CAMINITO AND BONINO, IS CONCEDED TO HAVE BEEN THE
VICTIM OF UNCONSTITUTIONAL STATE ACTION.  NOIA'S CASE STANDS ON ITS
OWN; BUT SURELY NO JUST AND HUMANE LEGAL SYSTEM CAN TOLERATE A RESULT
WHEREBY A CAMINITO AND A BONINO ARE AT LIBERTY BECAUSE THEIR
CONFESSIONS WERE FOUND TO HAVE BEEN COERCED YET A NOIA, WHOSE
CONFESSION WAS ALSO COERCED, REMAINS IN JAIL FOR LIFE.  FOR SUCH
ANOMALIES, SUCH AFFRONTS TO THE CONSCIENCE OF A CIVILIZED SOCIETY,
HABEAS CORPUS IS PREDESTINED BY ITS HISTORICAL ROLE IN THE STRUGGLE FOR
PERSONAL LIBERTY TO BE THE ULTIMATE REMEDY.  IF THE STATES WITHHOLD
EFFECTIVE REMEDY, THE FEDERAL COURTS HAVE THE POWER AND THE DUTY TO
PROVIDE IT.  HABEAS CORPUS IS ONE OF THE PRECIOUS HERITAGES OF ANGLO
AMERICAN CIVILIZATION.  WE DO NO MORE TODAY THAN CONFIRM ITS CONTINUING
EFFICACY.  AFFIRMED.    FN1  THE APPELLATE DIVISION OF THE NEW YORK
SUPREME COURT AND THE NEW YORK COURT OF APPEALS, ON THE DIRECT APPEALS
OF CAMINITO AND BONINO, AFFIRMED THE CONVICTIONS.  PEOPLE V. BONINO,
PEOPLE V. CAMINITO, 265 APP. DIV. 960, 38 N.Y.S.2D 1019 (1942); 291
N.Y. 541 (1943), 50 N.E.2D 654.  CERTIORARI WAS NOT SOUGHT HERE. 
MOTIONS TO REARGUE APPEALS IN THE NEW YORK COURT OF APPEALS MAY BE MADE
AT ANY TIME.  CAMINITO FILED MOTIONS FOR REARGUMENT IN 1948 AND 1954. 
THE MOTIONS WERE DENIED.   297 N.Y. 882, 79 N.E.2D 277; 307 N.Y. 686,
120 N.E.2D 857; WE DENIED CERTIORARI FROM THE SECOND DENIAL.  348 U.S.
839.  BONINO FILED A SIMILAR MOTION IN 1947, WHICH WAS DENIED, 296 N.Y.
1004, 73 N.E.2D 579.  CERTIORARI WAS DENIED.  333 U.S. 849.  CAMINITO
THEN SOUGHT FEDERAL HABEAS CORPUS IN THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF NEW YORK.  THE APPLICATION WAS DENIED.  127 F.
SUPP. 689 (1955).  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
REVERSED, SUSTAINING CAMINITO'S CLAIM THAT HIS CONFESSION HAD BEEN
PROCURED IN VIOLATION OF THE FOURTEENTH AMENDMENT; HE WAS DIRECTED TO
BE DISCHARGED UNLESS THE STATE ACCORDED HIM A NEW TRIAL.  UNITED STATES
EX REL. CAMINITO V. MURPHY, 222 F.2D 698 (1955); CERTIORARI WAS DENIED,
350 U.S. 896.  AFTER CAMINITO'S SUCCESS BONINO FILED A MOTION FOR
REARGUMENT OF HIS APPEAL IN THE NEW YORK COURT OF APPEALS.  THE MOTION
WAS GRANTED AND HIS CONVICTION WAS ALSO SET ASIDE AND A NEW TRIAL
ORDERED ON THE GROUND THAT HIS CONFESSION HAD BEEN UNCONSITUTIONALLY
PROCURED.  PEOPLE V. BONINO, 1 N.Y.2D 752, 135 N.E.2D 51 (1956).  BOTH
CAMINITO AND BONINO ARE NOW AT LIBERTY.  IT WAS SAID BY THE DISTRICT
COURT IN THE OPINION DENYING NOIA RELIEF IN FEDERAL HABEAS, "EVEN
THOUGH BONINO AND CAMINITO STILL REMAIN UNDER INDICTMENT IT IS MOST
HIGHLY IMPROBABLE THAT THEY WILL EVER BE TRIED AGAIN SINCE THE STATE
PRESENTED NO EVIDENCE BUT THE PRESENTLY UNAVAILABLE COERCION
CONFESSIONS IN 1942.  THE OBTAINING OF NEW EVIDENCE WOULD APPEAR AT
THIS LATE DATE IMPOSSIBLE."  183 F. SUPP., AT 227, N. 6. 

FN2  THE STIPULATION IS AS FOLLOWS: 

"FOR PURPOSES OF THIS PROCEEDING, THE DISTRICT ATTORNEY OF KINGS
COUNTY CONCEDES THAT THE COERCIVE NATURE OF THE CONFESSION ELICITED
FROM THE RESPONDENT AND INTRODUCED IN EVIDENCE AGAINST HIM AT THE TRIAL
IN KINGS COUNTY COURT WAS ESTABLISHED AND, THEREFORE, THE RECORD OF
TRIAL NEED NOT BE PRINTED."  BRIEF FOR RESPONDENT, P. 15, STAR
FOOTNOTE. 

THE FACTS SURROUNDING THE TAKING OF THE THREE CONFESSIONS WERE
ESSENTIALLY THE SAME.  A VIVID STATEMENT OF THESE FACTS IS GIVEN IN
UNITED STATES EX REL. CAMINITO V. MURPHY, SUPRA.  THE COURT OF APPEALS
CONDEMNED IN STRONG TERMS THE METHODS USED TO OBTAIN THE CONFESSIONS. 
"ALL DECENT AMERICANS SOUNDLY CONDEMN SATANIC PRACTICES, LIKE THOSE
DESCRIBED ABOVE, WHEN EMPLOYED IN TOTALITARIAN REGIMES.  IT SHOULD
SHOCK US WHEN AMERICAN POLICE RESORT TO THEM, FOR THEY DO NOT COMPORT
WITH THE BAREST MINIMUM OF CIVILIZED PRINCIPLES OF JUSTICE  ...  ." 
222 F.2D, AT 701. 

FN3  AFTER CAMINITO AND BONINO WERE RELEASED, NOIA, UNABLE TO EMPLOY
THE PROCEDURE OF A MOTION FOR REARGUMENT SINCE HE HAD NOT APPEALED FROM
HIS CONVICTION, MADE AN APPLICATION TO THE SENTENCING COURT IN THE
NATURE OF CORAM NOBIS.  THE KINGS COUNTY COURT SET ASIDE HIS
CONVICTION.  PEOPLE V. NOIA, 3 MISC. 2D 447, 158 N.Y.S.2D 683 (1956). 
THE APPELLATE DIVISION OF THE SUPREME COURT REVERSED AND REINSTATED THE
JUDGMENT OF CONVICTION, 4 APP.  DIV. 2D 698, 163 N.Y.S.2D 796 (1957). 
THE NEW YORK COURT OF APPEALS AFFIRMED THE APPELLATE DIVISION SUB NOM.
PEOPLE V. CAMINITO, 3 N.Y.2D 596, 148 N.E.2D 139 (1958).  THE COURT OF
APPEALS HELD THAT "NOIA'S FAILURE TO PURSUE THE USUAL AND ACCEPTED
APPELLATE PROCEDURE TO GAIN A REVIEW OF THE CONVICTION DOES NOT ENTITLE
HIM LATER TO UTILIZE  ... CORAM NOBIS  ...  .  AND THIS IS SO EVEN
THOUGH THE ASSERTED ERROR OR IRREGULARITY RELATES TO A VIOLATION OF
CONSTITUTIONAL RIGHT  ...  ."  3 N.Y.2D, AT 601, 148 N.E.2D, AT 143. 
CERTIORARI WAS DENIED SUB NOM.  NOIA V. NEW YORK, 357 U.S. 905.  NOIA
THEN BROUGHT THE INSTANT FEDERAL HABEAS CORPUS PROCEEDING IN THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. 

THE DISTRICT COURT HELD A HEARING LIMITED TO AN INQUIRY INTO THE
FACTS SURROUNDING NOIA'S FAILURE TO APPEAL BUT MADE NO FINDINGS AS TO
NOIA'S REASONS.  NOIA AND THE LAWYER WHO DEFENDED HIM AT HIS TRIAL
TESTIFIED.  NOIA SAID THAT WHILE AWARE OF HIS RIGHT TO APPEAL, HE DID
NOT APPEAL BECAUSE HE DID NOT WISH TO SADDLE HIS FAMILY WITH AN
ADDITIONAL FINANCIAL BURDEN AND HAD NO FUNDS OF HIS OWN.  THE GIST OF
THE LAWYER'S TESTIMONY WAS THAT NOIA WAS ALSO MOTIVATED NOT TO APPEAL
BY FEAR THAT IF SUCCESSFUL HE MIGHT GET THE DEATH SENTENCE IF CONVICTED
ON A RETRIAL.  THE TRIAL JUDGE, NOT BOUND TO ACCEPT THE JURY'S
RECOMMENDATION OF A LIFE SENTENCE, HAD SAID WHEN SENTENCING HIM, "I
HAVE THOUGHT SERIOUSLY ABOUT REJECTING THE RECOMMENDATION OF THE JURY
IN YOUR CASE, NOIA, BECAUSE I FEEL THAT IF THE JURY KNEW WHO YOU WERE
AND WHAT YOU WERE AND YOUR BACKGROUND AS A ROBBER, THEY WOULD NOT HAVE
MADE A RECOMMENDATION.  BUT YOU HAVE GOT A GOOD LAWYER, THAT IS MY
WIFE.  THE LAST THING SHE TOLD ME THIS MORNING IS TO GIVE YOU A
CHANCE."  RECORD, FF. 2261-2262.  NOIA'S CONFESSION INCLUDED AN
ADMISSION THAT HE WAS THE ONE WHO HAD ACTUALLY SHOT THE VICTIM. 

FN4  E.G., REITZ, FEDERAL HABEAS CORPUS:  IMPACT OF AN ABORTIVE STATE
PROCEEDING, 74 HARV. L. REV. 1315 (1961); BRENNAN, FEDERAL HABEAS
CORPUS AND STATE PRISONERS:  AN EXERCISE IN FEDERALISM, 7 UTAH L. REV.
423 (1961); HART, FOREWORD, THE SUPREME COURT, 1958 TERM, 73 HARV. L.
REV. 84, 101-121 (1959). 

FN5  HABEAS CORPUS HAS ALWAYS HAD OTHER FUNCTIONS BESIDES INQUIRY INTO
ILLEGAL DETENTION WITH A VIEW TO AN ORDER RELEASING THE PETITIONER. 
BLACKSTONE NAMES FOUR:  HABEAS CORPUS AD RESPONDENDUM; AD
SATISFACIENDUM; AD PROSEQUENDUM, TESTIFICANDUM, DELIBERANDUM; AD
FACIENDUM ET RECIPIENDUM.  3 COMMENTARIES 129-132.  SEE, E.G., CARBO V.
UNITED STATES, 364 U.S. 611; PRICE V. JOHNSTON, 334 U.S. 266.  THE
PRESENT CASE, OF COURSE, CONCERNS ONLY THE AD SUBJICIENDUM FORM. 

FN6  CHURCH, HABEAS CORPUS (1884), SECS. 38-45; CARPENTER, HABEAS
CORPUS IN THE COLONIES, 8 AM. HIST. REV. 18 (1902). 

FN7  "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE
SUSPENDED UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC
SAFETY MAY REQUIRE IT." 

FN8  SEE 1 HOLDSWORTH, HISTORY OF ENGLISH LAW (1927), 227-228;
CHAFEE, THE MOST IMPORTANT HUMAN RIGHT IN THE CONSTITUTION, 32 B.U.L.
REV. 143, 146-159 (1952). 

FN9  SEE CHURCH, SUPRA, NOTE 6, SEC. 40; EX PARTE BOLLMAN AND
SWARTWOUT, SUPRA (PETITION FOR HABEAS BY ALLEGED SEDITIOUS CO
CONSPIRATORS OF AARON BURR); EX PARTE MILLIGAN, 4 WALL.  2
(PRESIDENTIAL POWER TO INSTITUTE TRIAL BY MILITARY TRIBUNAL DURING
CIVIL WAR); EX PARTE QUIRIN, 317 U.S. 1 (HABEAS SOUGHT BY GERMAN
SABOTEURS SENTENCED TO DEATH BY A SECRET MILITARY TRIBUNAL); EX PARTE
ENDO, 323 U.S. 283 (POWER TO HOLD LOYAL CITIZEN OF JAPANESE DESCENT IN
RELOCATION CENTER IN WORLD WAR II CHALLENGED ON HABEAS).  ALL THE
SIGNIFICANT STATUTORY CHANGES IN THE FEDERAL WRIT HAVE BEEN PROMPTED BY
GRAVE POLITICAL CRISES.  THE FIRST MODIFICATION OF THE PROVISIONS OF
THE JUDICIARY ACT OF 1789 WAS MADE IN THE FORCE ACT OF MARCH 2, 1833,
C. 57, SEC. 7, 4 STAT. 634-635, IN RESPONSE TO SOUTH CAROLINA'S
NULLIFICATION ORDINANCE.  THE ACT PROVIDED THAT FEDERAL COURTS AND
JUDGES COULD RELEASE FROM STATE CUSTODY PERSONS WHO HAD BEEN ACTING
UNDER FEDERAL AUTHORITY.  THE ACT OF AUGUST 29, 1842, C. 257, 5 STAT.
539-540, WHICH EXTENDED FEDERAL HABEAS TO FOREIGN NATIONALS ACTING
UNDER AUTHORITY OF A FOREIGN STATE, WAS PROMPTED BY BRITISH DIPLOMATIC
PROTEST FOLLOWING THE TRIAL OF A CANADIAN SOLDIER BY A NEW YORK STATE
COURT.  SEE PEOPLE V. MCLEOD, 25 WEND.  483 (N.Y. SUP. CT. 1841).  THE
ACT OF FEBRUARY 5, 1867, C. 28, SEC. 1, 14 STAT. 385-386, WHICH
EXTENDED FEDERAL HABEAS TO STATE PRISONERS GENERALLY, WAS PASSED IN
ANTICIPATION OF POSSIBLE SOUTHERN RECALCITRANCE TOWARD RECONSTRUCTION
LEGISLATION.  SEE P. 415, INFRA.  THAT WAS THE LAST IMPORTANT STATUTORY
CHANGE.  SEE REV. STAT., 1874, SECS. 751-766; 28 U.S.C. SECS. 451-466
(1940 ED.); 28 U.S.C. SECS.  2241-2255 (1958 ED.); LONGSDORF, THE
FEDERAL HABEAS CORPUS ACTS ORIGINAL AND AMENDED, 13 F.R.D. 407 (1953). 

FN10  QUOTED IN WALKER, THE CONSTITUTIONAL AND LEGAL DEVELOPMENT OF
HABEAS CORPUS AS THE WRIT OF LIBERTY (1960), 44-45. 

FN11  1 HOLDSWORTH, SUPRA, NOTE 8, AT 227.  SEE, E.G., DOLPHIN V.
SHUTFORD (1542), REPORTED IN 2 MARSDEN, SELECT PLEAS IN THE COURT OF
ADMIRALTY (1897), PP. XLVI-XLVII, DISCUSSED IN WALKER, SUPRA, NOTE 10,
AT 24 (KING'S BENCH ISSUED HABEAS TO REMOVE PRISONER HELD PURSUANT TO
ORDER OF THE ADMIRALTY COURT).  SEE FURTHER WALKER, SUPRA, AT 22-25. 
OF COURSE THE STATE COURTS ARE NOT INFERIOR COURTS IN ANY SENSE THOUGHT
(AT LEAST BY KING'S BENCH) TO BE TRUE OF THE ADMIRALTY COURT; THE
ISSUANCE OF WRITS OF HABEAS BY THE FEDERAL COURTS IS, RATHER, AN ASPECT
OF THE SUPREMACY OF FEDERAL LAW.  BROWN V. ALLEN, 344 U.S. 443, 510
(OPINION OF MR. JUSTICE FRANKFURTER). 

FN12  SEE, E.G., CREPPS V. DURDEN, 2 COWPER 640, 98 ENG. REP. 1283
(K.B. 1777); REX V. COLLYER, SAYER 44, 96 ENG. REP. 797 (K.B. 1752);
KING V. HAWKINS, FORT.  272, 92 ENG.  REP. 849 (K.B. 1715); INGERSOLL,
HISTORY AND LAW OF THE WRIT OF HABEAS CORPUS (1849), 29-31. 

FN13  TO BE SURE, THE ACT EXPRESSLY EXCEPTS JUDICIAL DETENTIONS THAT
HAVE RIPENED INTO CRIMINAL CONVICTIONS.  BUT THIS EXCEPTION WAS NOT
INTENDED TO HAVE THE EFFECT OF DENYING THE PROTECTION OF HABEAS CORPUS
FOR SUCH PERSONS IN APPROPRIATE CASES.  RATHER, SUCH PERSONS WERE
EXCLUDED SIMPLY FROM THE COVERAGE OF THE ACT AND REMITTED TO THEIR
COMMON-LAW RIGHTS TO HABEAS - AS CONSTRUED, FOR EXAMPLE, IN BUSHELL'S
CASE - BECAUSE THE ACT WAS DESIGNED TO MEET THE PROBLEM OF BAIL, WHICH
HAD PRINCIPAL RELEVANCE AT THE PRECONVICTION STAGE.  SEE BRIEF OF PAUL
A. FREUND, ASSIGNED COUNSEL, FOR RESPONDENT, UNITED STATES V. HAYMAN,
342 U.S. 205 (NO. 23, OCTOBER TERM 1951), PP. 31-32.  FURTHERMORE, THE
ENGLISH STATUTES GOVERNING HABEAS HAVE NEVER BEEN REGARDED AS
PREEMPTING COMMON-LAW RIGHTS TO THE WRIT.  ID., AT 32; 11 HALSBURY,
LAWS OF ENGLAND (3D ED. 1955), CROWN PROCEEDINGS, P. 28, N. (U). 

FN14  HABEAS CORPUS (BOUVIER ED., 1856), B 10.  SEE ALSO 2 HALE,
HISTORY OF THE PLEAS OF THE CROWN, 144:  "IF IT APPEAR UPON THE RETURN
TO THE WRIT OF HABEAS CORPUS, THAT THE PARTY IS WRONGFULLY COMMITTED,
OR BY ONE THAT HATH NOT JURISDICTION, OR FOR A CAUSE FOR WHICH A MAN
OUGHT NOT TO BE IMPRISONED, THE PRIVILEGE SHALL BE ALLOWD, AND THE
PERSON DISCHARGED FROM THAT IMPRISONMENT."  IN HALE'S ANALYSIS OF THE
CIVIL PART OF THE LAW (4TH ED.), 78, HABEAS CORPUS IS DESCRIBED AS A
REMEDY TO REMOVE OR AVOID IMPRISONMENT "WITHOUT LAWFUL OR JUST CAUSE,"
AND IS ELSEWHERE EXPRESSLY LINKED WITH DUE PROCESS OF LAW:  "HERE FALLS
IN ALL THE LEARNING UPON THE STAT. OF MAGNA CHARTA, AND CHARTA DE
FORESTA, WHICH CONCERNS THE LIBERTY OF THE SUBJECT; ESPECIALLY MAGNA
CHARTA, CAP.  29.  AND THOSE OTHER STATUTES THAT RELATE TO THE
IMPRISONMENT OF THE SUBJECT WITHOUT DUE PROCESS OF LAW; AS THE LEARNING
OF HABEAS CORPUS, AND THE RETURNS THEREUPON  ...  ."  ID., AT 31. 

FN15  "HAVING ESTABLISHED FEDERAL COURTS CONGRESS WOULD BE POWERLESS
TO DENY THE PRIVILEGE OF THE WRIT.  OTHERWISE ARTICLE I, SECTION 9
WOULD BE REDUCED TO A DEAD LETTER."  BRIEF, SUPRA, NOTE 13, AT 29.  IT
IS ALSO POINTED OUT THERE, ID., AT 28, THAT THE WITHDRAWAL OF THE
SUPREME COURT'S JURISDICTION OF FEDERAL HABEAS APPEALS, WHICH WAS
UPHELD IN EX PARTE MCCARDLE, 7 WALL.  506, DID NOT AFFECT THE POWER OF
THE LOWER FEDERAL COURTS TO GRANT HABEAS. 

A CONTRARY ARGUMENT IS PRESENTED IN COLLINGS, HABEAS CORPUS FOR
CONVICTS - CONSTITUTIONAL RIGHT OR LEGISLATIVE GRACE?  40 CALIF. L.
REV. 335 (1952).  WE INTIMATE NO VIEW ON ANY OF THESE CONSTITUTIONAL
QUESTIONS. 

FN16  THE PRESENT STATUS OF WATKINS WITH RESPECT TO PROBLEMS OF OUR
JURISDICTION TO ISSUE THE WRIT ON ORIGINAL APPLICATIONS TO THIS COURT
IS NOT OF COURSE AT ISSUE IN THE INSTANT CASE.  SEE OAKS, THE
"ORIGINAL" WRIT OF HABEAS CORPUS IN THE SUPREME COURT, 1962 SUPREME
COURT REVIEW (KURLAND ED.), 153.   CF. EX PARTE PERU, 318 U.S. 578. 

FN17 E.G., EX PARTE JACKSON, 96 U.S. 727; EX PARTE VIRGINIA, 100 U.S.
339; EX PARTE YARBROUGH, 110 U.S. 651; EX PARTE WILSON, 114 U.S. 417;
IN RE SNOW, 120 U.S. 274; EX PARTE BAIN, 121 U.S. 1; CALLAN V. WILSON,
127 U.S. 540; IN RE COY, 127 U.S. 731; UNITED STATES V. DEWALT, 128
U.S. 393; NIELSEN, PETITIONER, 131 U.S. 176; IN RE BONNER, 151 U.S.
242; ANDERSEN V. TREAT, 172 U.S. 24; HAWAII V. MANKICHI, 190 U.S. 197;
IN RE HEFF, 197 U.S. 488; MORGAN V. DEVINE, 237 U.S. 632; ARNDSTEIN V.
MCCARTHY, 254 U.S. 71; ESCOE V. ZERBST, 295 U.S. 490; JOHNSON V.
ZERBST, 304 U.S. 458; BOWEN V. JOHNSTON, 306 U.S. 19; HOLIDAY V.
JOHNSTON, 313 U.S. 342; WALEY V. JOHNSTON, 316 U.S. 101; ADAMS V.
UNITED STATES EX REL. MCCANN, 317 U.S. 269; VON MOLTKE V. GILLIES, 332
U.S. 708; UNITED STATES V. HAYMAN, 342 U.S. 205, 212. 

SINCE THE ENACTMENT OF 28 U.S.C. SEC. 2255 IN 1948 (MOTION TO THE
SENTENCING COURT, IN THE NATURE OF CORAM NOBIS; SEE UNITED STATES V.
HAYMAN, SUPRA), HABEAS CORPUS HAS BECOME OF LESS PRACTICAL SIGNIFICANCE
FOR FEDERAL PRISONERS.    FN18  ACT OF MARCH 27, 1868, C. 34, SEC. 2,
15 STAT. 44; ACT OF MARCH 3, 1885, C. 353, 23 STAT. 437.  SEE EX PARTE
MCCARDLE, 7 WALL.  506. 

FN19  E.G., EX PARTE MCCREADY, 1 HUGHES 598 (CIR. CT. E.D. VA. 1874);
EX PARTE BRIDGES, 2 WOODS 428 (CIR. CT. N.D. GA. 1875); IN RE WONG YUNG
QUY, 6 SAWYER 237 (CIR. CT. D. CAL. 1880); IN RE PARROTT, 6 ID., 349
(CIR. CT. D. CAL. 1880); IN RE AH LEE, 6 ID., 410 (D.C.D. ORE.  1880);
IN RE AH CHONG, 6 ID., 451 (CIR. CT. D. CAL. 1880); EX PARTE HOUGHTON,
7 FED. 657, 8 FED. 897 (D.C.D. VT. 1881).    FN20  E.G., EX PARTE
ROYALL, 117 U.S. 241; WO LEE V. HOPKINS, DECIDED WITH YICK WO V.
HOPKINS, 118 U.S. 356; MEDLEY, PETITIONER, 134 U.S. 160; SAVAGE,
PETITIONER, 134 U.S. 176; MINNESOTA V. BARBER, 136 U.S. 313
(DISAPPROVED IN MINNESOTA V. BRUNDAGE, 180 U.S. 499); CROWLEY V.
CHRISTENSEN, 137 U.S. 86; IN RE CONVERSE, 137 U.S. 624; IN RE RAHRER,
140 U.S. 545; MCELVAINE V. BRUSH, 142 U.S. 155; COOK V. HART, 146 U.S.
183; IN RE FREDERICH, 149 U.S. 70; FELTS V. MURPHY, 201 U.S. 123;
PETTIBONE V. NICHOLS, 203 U.S. 192; FRANK V. MANGUM, 237 U.S. 309, 331;
LOTT V. PITTMAN, 243 U.S. 588. 

FN21  E.G., MOORE V. DEMPSEY, 261 U.S. 86; MOONEY V. HOLOHAN, 294
U.S. 103; HOUSE V. MAYO, 324 U.S. 42; WHITE V. RAGEN, 324 U.S. 760;
DOWD V. UNITED STATES EX REL. COOK, 340 U.S. 206; BROWN V. ALLEN, 344
U.S. 443; UNITED STATES EX REL. SMITH V. BALDI, 344 U.S. 561; MASSEY V.
MOORE, 348 U.S. 105; CICENIA V. LAGAY, 357 U.S. 504; UNITED STATES EX
REL. JENNINGS V. RAGEN, 358 U.S. 276; DOUGLAS V. GREEN, 363 U.S. 192;
ROGERS V. RICHMOND, 365 U.S. 534; IRVIN V. DOWD, 366 U.S. 717. 

FN22  FRANK V. MANGUM, 237 U.S. 309, 346-347 (DISSENTING OPINION). 
THE PRINCIPLES ADVANCED BY MR. JUSTICE HOLMES IN HIS DISSENTING OPINION
IN FRANK WERE LATER ADOPTED BY THE COURT IN MOORE V. DEMPSEY, 261 U.S.
86, AND HAVE REMAINED THE LAW.  SEE PP. 420-422, INFRA. 

FN23  OBVIOUSLY IN A CASE OF SUCH MERE ERROR THE FACT THAT THIS COURT
HAD NO GENERAL APPELLATE JURISDICTION, NOTE 26, INFRA, OVER FEDERAL
CRIMINAL JUDGMENTS ARGUED WITH SPECIAL POWER AGAINST GRANTING RELIEF ON
HABEAS. 

FN24  IN MORAN, THE COURT PASSED ON THE MERITS OF ONE FIFTH AMENDMENT
GROUND TENDERED BY THE PETITIONER BUT REJECTED THE OTHER - WHETHER
PETITIONER'S BEING COMPELLED TO WALK UP AND DOWN BEFORE THE JURY
VIOLATED THE SELF-INCRIMINATION CLAUSE OF THE FIFTH - PERFUNCTORILY ON
THE BASIS OF LACK OF HABEAS JURISDICTION TO REVIEW ERRORS NOT GOING TO
THE JURISDICTION OF THE CONVICTING COURT.  IN KNEWEL THE BASIS OF THE
HABEAS PETITION WAS A CLAIM OF PLEADING DEFICIENCIES AND IMPROPER VENUE
UNDER STATE LAW.  PETITIONER'S ASSERTION THAT HIS CONSTITUTIONAL RIGHTS
HAD BEEN INFRINGED WAS THUS SCARCELY COLORABLE.  THE ALLEGATIONS IN
GOTO AND VALANTE WERE SIMILARLY INSUBSTANTIAL. 

FN25  SEE REV. STAT., 1874, SEC. 709; ACT OF SEPTEMBER 6, 1916, C.
448, SEC. 2, 39 STAT. 726-727; 28 U.S.C. SEC. 1257. 

FN26  SEE ACT OF MARCH 3, 1891, C. 517, SEC. 5, 26 STAT. 827.  THE
REVIEW THUS PROVIDED WAS BY WRIT OF ERROR.  THIS OBLIGATORY REVIEW WAS
WITHDRAWN BY THE ACT OF JANUARY 20, 1897, C. 68, 29 STAT. 492; SEE
FRANKFURTER AND LANDIS, THE BUSINESS OF THE SUPREME COURT (1927), 109
113, ALTHOUGH REVIEW AS OF RIGHT REMAINED FOR CAPITAL CASES UNTIL THE
ACT OF MARCH 3, 1911, C. 231, SECS. 128, 240, 36 STAT. 1133-1134,
1157.  SEE 28 U.S.C. SEC. 1254. 

FN27  IN MAKING PROVISION FOR THE TRIAL OF FACT ON HABEAS (SOMETHING
THAT HAD BEEN LEFT UNMENTIONED IN THE PREVIOUS STATUTES GOVERNING
FEDERAL HABEAS CORPUS), THE ACT OF 1867 SEEMS TO HAVE RESTORED RATHER
THAN EXTENDED THE COMMON-LAW POWERS OF THE HABEAS JUDGE.  FOR IT
APPEARS THAT THE COMMON-LAW DOCTRINE OF THE INCONTROVERTIBILITY OF THE
TRUTH OF THE RETURN WAS SUBJECT TO NUMEROUS EXCEPTIONS.  HURD, HABEAS
CORPUS (2D ED.  1876), 271; BACON, ABRIDGMENT, HABEAS CORPUS (BOUVIER
ED., 1856), B 11. 

FN28  COOK V. HART, 146 U.S. 183, 194-195.  SEE, E.G., EX PARTE
FONDA, 117 U.S. 516; IN RE WOOD, 140 U.S. 278; PEPKE V. CRONAN, 155
U.S. 100; IN RE FREDERICH, 149 U.S. 70; WHITTEN V. TOMLINSON, 160 U.S.
231; REID V. JONES, 187 U.S. 153; UNITED STATES EX REL.  DRURY V.
LEWIS, 200 U.S. 1; PETTIBONE V. NICHOLS, 203 U.S. 192; EX PARTE SIMON,
208 U.S. 144; JOHNSON V. HOY, 227 U.S. 245. 

FN29  "AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A
PERSON IN CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT
BE GRANTED UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE
REMEDIES AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER
AN ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER. 

"AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

THIS SECTION WAS ADDED IN THE REVISION OF THE JUDICIAL CODE IN 1948. 
THE REVISER'S NOTE READS: "THIS NEW SECTION IS DECLARATORY OF EXISTING
LAW AS AFFIRMED BY THE SUPREME COURT.  (SEE EX PARTE HAWK,  ...  321
U.S. 114  ...  ." 

FN30  SEE, E.G., EX PARTE HAWK, 321 U.S. 114, 118; JENNINGS V.
ILLINOIS, 342 U.S. 104, 109; BROWN V. ALLEN, 344 U.S. 443; UNITED
STATES EX REL. SMITH V. BALDI; 344 U.S. 561; LEYRA V. DENNO, 347 U.S.
556; CHESSMAN V. TEETS, 350 U.S. 3; THOMAS V. ARIZONA, 356 U.S. 390;
HAWK V. OLSON, 326 U.S. 271, 276 (DICTUM). 

THE ARGUMENT HAS RECENTLY BEEN ADVANCED THAT THE MOORE DECISION DID
NOT IN FACT DISCREDIT THE POSITION ADVANCED BY THE COURT IN FRANK V.
MANGUM (THAT HABEAS WOULD LIE ONLY IF THE STATE COURTS HAD FAILED TO
AFFORD PETITIONER CORRECTIVE PROCESS), AND THAT THIS POSITION WAS FIRST
UPSET IN BROWN V. ALLEN.  BATOR, FINALITY IN CRIMINAL LAW AND FEDERAL
HABEAS CORPUS FOR STATE PRISONERS, 76 HARV. L. REV. 441, 488-500
(1963).  THE ARGUMENT WOULD SEEM UNTENABLE IN LIGHT OF CERTAIN FACTORS:
(1) THE OPINION OF THE COURT IN MOORE, WRITTEN BY MR. JUSTICE HOLMES,
IS A VIRTUAL PARAPHRASE OF HIS DISSENTING OPINION IN FRANK.  (2) THE
THESIS OF THE FRANK MAJORITY FINDS NO SUPPORT IN OTHER DECISIONS OF THE
COURT; THOUGH THE AVAILABILITY OF CORRECTIVE PROCESS IS SOMETIMES
MENTIONED AS A FACTOR BEARING UPON GRANT OR DENIAL OF FEDERAL HABEAS,
SUCH LANGUAGE TYPICALLY APPEARS IN THE CONTEXT OF THE EXHAUSTION
PROBLEM; INDEED, "AVAILABLE STATE CORRECTIVE PROCESS" IS PART OF THE
LANGUAGE OF 28 U.S.C. SEC. 2254.  SEE, E.G., WHITE V. RAGEN, 324 U.S.
760, 764.  (3) NONE OF THE OPINIONS IN BROWN V. ALLEN EVEN REMOTELY
SUGGESTS THAT THE COURT WAS CHANGING THE EXISTING LAW IN ALLOWING
COERCED CONFESSIONS AND RACIAL DISCRIMINATION IN JURY SELECTION TO BE
CHALLENGED ON HABEAS NOTWITHSTANDING STATE COURT REVIEW OF THE MERITS
OF THESE CONSTITUTIONAL CLAIMS. 

FN31  SEE BROWN V. ALLEN, 344 U.S. 443, 478 (OPINION OF MR. JUSTICE
REED), 506 (OPINION OF MR. JUSTICE FRANKFURTER).  WE ACCOMPANIED OUR
DENIAL OF CERTIORARI IN ROGERS V. RICHMOND, 357 U.S. 220, WITH AN
OPINION IN WHICH WE SAID:  "  ...  WHILE THE DISTRICT JUDGE MAY, UNLESS
HE FINDS A VITAL FLAW IN THE STATE COURT PROCEEDINGS, ACCEPT THE
DETERMINATION IN SUCH PROCEEDINGS, HE NEED NOT DEEM SUCH DETERMINATION
BINDING, AND MAY TAKE TESTIMONY."  THE ROGERS CASE WAS ULTIMATELY
DECIDED ON OTHER GROUNDS.  365 U.S. 534. 

FN32  LORD HERSCHELL, IN COX V. HAKES, (1890) 15 A.C. 506, 527-528
(H.L.), DESCRIBED THE ENGLISH PRACTICE AS FOLLOWS:  "NO COURT WAS BOUND
BY THE VIEW TAKEN BY ANY OTHER, OR FELT ITSELF OBLIGED TO FOLLOW THE
LAW LAID DOWN BY IT.  EACH COURT EXERCISED ITS INDEPENDENT JUDGMENT
UPON THE CASE, AND DETERMINED FOR ITSELF WHETHER THE RETURN TO THE WRIT
ESTABLISHED THAT THE DETENTION OF THE APPLICANT WAS IN ACCORDANCE WITH
THE LAW.  A PERSON DETAINED IN CUSTODY MIGHT THUS PROCEED FROM COURT TO
COURT UNTIL HE OBTAINED HIS LIBERTY  ...  .  I NEED NOT DWELL UPON THE
SECURITY WHICH WAS THUS AFFORDED AGAINST ANY UNLAWFUL IMPRISONMENT.  IT
IS SUFFICIENT TO SAY THAT NO PERSON COULD BE DETAINED IN CUSTODY IF ANY
ONE OF THE TRIBUNALS HAVING POWER TO ISSUE THE WRIT OF HABEAS CORPUS
WAS OF OPINION THAT THE CUSTODY WAS UNLAWFUL."  THIS PRACTICE HAS
LATELY BEEN CHANGED BY STATUTE, ADMINISTRATION OF JUSTICE ACT, 1960, 8
& 9 ELIZ.  II, C. 65, SEC. 14(2). 

FN33  SEE NOTE 16, SUPRA. 

FN34  SEE IN RE FREDERICH, 149 U.S. 70, 75-76; EX PARTE CLARKE, 100
U.S. 399; EX PARTE TOM TONG, 108 U.S. 556; KURTZ V. MOFFITT, 115 U.S.
487; FISHER V. BAKER, 203 U.S. 174; RIDDLE V. DYCHE, 262 U.S. 333. 
"THE WRIT OF HABEAS CORPUS IS A NEW SUIT BROUGHT BY THE PETITIONER TO
ENFORCE A CIVIL RIGHT, WHICH HE CLAIMS AS AGAINST THOSE WHO ARE HOLDING
HIM IN CUSTODY.  THE PROCEEDING IS ONE INSTITUTED BY HIMSELF FOR HIS
LIBERTY, AND NOT BY THE GOVERNMENT TO PUNISH FOR HIS CRIME.  THE
JUDICIAL PROCEEDING, UNDER IT IS NOT TO INQUIRE INTO THE CRIMINAL ACT
WHICH IS COMPLAINED OF, BUT INTO THE RIGHT TO LIBERTY NOTWITHSTANDING
THE ACT.  IT IS NOT A PROCEEDING IN THE ORIGINAL ACTION."  1 BAILEY,
HABEAS CORPUS AND SPECIAL REMEDIES (1913), SEC. 4. 

FN35  SEE IN RE WOOD, 140 U.S. 278; MARKUSON V. BOUCHER, 175 U.S.
184; DAVIS V. BURKE, 179 U.S. 399; IN RE LINCOLN, 202 U.S. 178; EX
PARTE SPENCER, 228 U.S. 652; GOTO V. LANE, 265 U.S. 393; FRANK V.
MANGUM, 237 U.S. 309, 343; JENNINGS V. ILLINOIS, 342 U.S. 104; DARR V.
BURFORD, 339 U.S. 200; CICENIA V. LAGAY, 357 U.S. 504, 507-508, N. 2;
BROWN V. ALLEN, 344 U.S. 443, 503 (OPINION OF FRANKFURTER, J.); DANIELS
V. ALLEN, DECIDED WITH BROWN V. ALLEN, SUPRA, AT 485-487. 

IN SUNAL V. LARGE, 332 U.S. 174, THE COURT HELD THAT FEDERAL
PRISONERS WHO DID NOT APPEAL THEIR CONVICTIONS COULD NOT BE RELEASED ON
HABEAS.  HOWEVER, THE COURT EXPRESSLY EXCLUDED ERRORS SO GRAVE THAT
THEY "CROSS THE JURISDICTIONAL LINE," 332 U.S., AT 179, AND IMPLIED
THAT THE CLAIMED ERROR WAS NOT EVEN OF CONSTITUTIONAL DIMENSION, ID.,
AT 182-183.  SEE PP. 411-412, SUPRA. 

FN36  MOORE V. DEMPSEY, 261 U.S. 86, IS THE MOST STRIKING EXAMPLE OF
THE COURT'S SEEMING REFUSAL TO GIVE EFFECT TO A STATE PROCEDURAL
GROUND, THOUGH THE COURT'S LANGUAGE IS AMBIGUOUS.  261 U.S., AT 91-92. 

FN37  COMPARE, E.G., UNITED STATES EX REL. KOZICKY V. FAY, 248 F.2D
520 (C.A. 2D CIR. 1957); WHITLEY V. STEINER, 293 F.2D 895 (C.A. 4TH
CIR. 1961); UNITED STATES EX REL. STEWART V. RAGEN, 231 F.2D 312 (C.A.
7TH CIR. 1956); AND UNITED STATES EX REL. DOPKOWSKI V. RANDOLPH, 262
F.2D 10 (C.A. 7TH CIR. 1958), WITH, E.G., EX PARTE HOUGHTON, 7 FED.
657, 664, 8 FED. 897, 903 (D.C.D. VT. 1881); PENNSYLVANIA V. CAVELL,
157 F. SUPP. 272 (D.C.W.D.  PA. 1957), AFF'D MEM., 254 F.2D 816 (C.A.
3D CIR. 1958); JOHNS V. OVERLADE, 122 F. SUPP.  921 (D.C.N.D. IND.
1953); MORRISON V. SMYTH, 273 F.2D 544, 547 (C.A. 4TH CIR. 1960);
UNITED STATES EX REL. ROONEY V. RAGEN, 158 F.2D 346, 352 (C.A. 7TH CIR.
1946). 

FN38  THIS ARGUMENT DERIVES NO SUPPORT FROM THE STATUTORY
SPECIFICATION OF "CUSTODY," 28 U.S.C. SEC. 2241(C)(3).  OF COURSE
CUSTODY IN THE SENSE OF RESTRAINT OF LIBERTY IS A PREREQUISITE TO
HABEAS, FOR THE ONLY REMEDY THAT CAN BE GRANTED ON HABEAS IS SOME FORM
OF DISCHARGE FROM CUSTODY.  MCNALLY V. HILL, 293 U.S. 131; MEDLEY,
PETITIONER, 134 U.S. 160, 173-174; WALES V. WHITNEY, 114 U.S. 564,
571. 

FN39  SEE IRVIN V. DOWD, 359 U.S. 394, 410, 412-413 (DISSENTING
OPINIONS); HART, NOTE 4, SUPRA. PROFESSOR HART SEEMS TO CONCEDE,
HOWEVER, THAT THE CONVENTIONAL ADEQUATE STATE-GROUND RULE WOULD HAVE TO
BE MODIFIED TO DO SERVICE IN HABEAS, 73 HARV. L. REV., AT 112, N. 81,
AND FURTHER OPINES THAT THE COURT HAS "VACILLATED" IN ITS APPLICATION
OF THE RULE EVEN IN CONVENTIONAL SITUATIONS.  ID., AT 116.  IT HAS BEEN
SAID BY OTHERS ALSO THAT THE ADEQUATE STATE-GROUND RULE HAS NOT BEEN
CLEARLY ARTICULATED OR CONSISTENTLY APPLIED BY THIS COURT.  E.G., NOTE,
74 HARV. L. REV. 1375, 1394 (1961); COMMENT, 61 COL. L. REV. 255, 256,
277 (1961).  IN ANY EVENT, NO HABEAS DECISION HAS BEEN FOUND WHICH
EXPRESSLY RESTS UPON IT.  THUS, TO APPLY THE RULE IN HABEAS WOULD BE TO
SET SAIL ON QUITE UNCHARTED SEAS. 

FN40  "THE REASON (FOR THE ADEQUATE STATE-GROUND RULE) IS SO OBVIOUS
THAT IT HAS RARELY BEEN THOUGHT TO WARRANT STATEMENT.  IT IS FOUND IN
THE PARTITIONING OF POWER BETWEEN THE STATE AND FEDERAL JUDICIAL
SYSTEMS AND IN THE LIMITATIONS OF OUR OWN JURISDICTION.  OUR ONLY POWER
OVER STATE JUDGMENTS IS TO CORRECT THEM TO THE EXTENT THAT THEY
INCORRECTLY ADJUDGE FEDERAL RIGHTS.  AND OUR POWER IS TO CORRECT WRONG
JUDGMENTS, NOT TO REVISE OPINIONS.  WE ARE NOT PERMITTED TO RENDER AN
ADVISORY OPINION, AND IF THE SAME JUDGMENT WOULD BE RENDERED BY THE
STATE COURT AFTER WE CORRECTED ITS VIEWS OF FEDERAL LAWS, OUR REVIEW
COULD AMOUNT TO NOTHING MORE THAN AN ADVISORY OPINION."  HERB V.
PITCAIRN, 324 U.S. 117, 125-126.  SEE NOTE, NOTE 39, SUPRA, AT 1379 AND
N. 32. 

WE NEED NOT DECIDE WHETHER THE ADEQUATE STATE-GROUND RULE IS
CONSTITUTIONALLY COMPELLED OR MERELY A MATTER OF THE CONSTRUCTION OF
THE STATUTES DEFINING THIS COURT'S APPELLATE REVIEW.  MURDOCK ITSELF
WAS PREDICATED ON STATUTORY CONSTRUCTION, AND THE PRESENT STATUTE
GOVERNING OUR REVIEW OF STATE COURT DECISIONS, 28 U.S.C. SEC. 1257,
LIMITED AS IT IS TO "JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT
OF A STATE IN WHICH A DECISION COULD BE HAD", PROVIDES AMPLE STATUTORY
WARRANT FOR OUR CONTINUED ADHERENCE TO THE PRINCIPLES LAID DOWN IN
MURDOCK. 

FN41  SEE, E.G., STAUB V. BAXLEY, 355 U.S. 313; WILLIAMS V. GEORGIA,
349 U.S. 375, 389; NEW YORK CENT. R. CO. V. NEW YORK & PA. CO., 271
U.S. 124; DAVIS V. WECHSLER, 263 U.S. 22; CARTER V. TEXAS, 177 U.S.
442; NOTE, 74 HARV. L. REV. 1375, 1388-1391 (1961); COMMENT, 61 COL. L.
REV. 255 (1961).  "WHATEVER SPRINGES THE STATE MAY SET FOR THOSE WHO
ARE ENDEAVORING TO ASSERT RIGHTS THAT THE STATE CONFERS, THE ASSERTION
OF FEDERAL RIGHTS, WHEN PLAINLY AND REASONABLY MADE, IS NOT TO BE
DEFEATED UNDER THE NAME OF LOCAL PRACTICE."  DAVIS V. WECHSLER, SUPRA,
AT 24.  (MR. JUSTICE HOLMES.)    FN42  SEE NOTE 29, SUPRA.  PLAINLY,
THE WORDS OF SEC. 2254 FAVOR A CONSTRUCTION LIMITED TO PRESENTLY
AVAILABLE REMEDIES.  REITZ, SUPRA, N. 4, AT 1365.  THE ONLY TWO
DECISIONS OF THIS COURT PRIOR TO 1948 IN WHICH PAST EXHAUSTION WAS
STRONGLY SUGGESTED WERE EX PARTE SPENCER, 228 U.S. 652, AND FRANK V.
MANGUM, 237 U.S. 309, 343.  THE LATTER, OF COURSE, WAS SUBSTANTIALLY
OVERRULED IN MOORE V. DEMPSEY, THE LANGUAGE OF WHICH DOES NOT SUPPORT A
NOTION OF FORFEITURES.  SEE NOTE 36, SUPRA.  ON THE OTHER HAND, MOONEY
V. HOLOHAN, 294 U.S. 103, IS TYPICAL OF DECISIONS PLAINLY IMPLYING A
RULE LIMITED TO PRESENTLY AVAILABLE REMEDIES:  "BEFORE THIS COURT IS
ASKED TO ISSUE A WRIT OF HABEAS CORPUS, IN THE CASE OF A PERSON HELD
UNDER A STATE COMMITMENT, RECOURSE SHOULD BE HAD TO WHATEVER JUDICIAL
REMEDY AFFORDED BY THE STATE MAY STILL REMAIN OPEN  ...  . 

"ACCORDINGLY, LEAVE TO FILE THE PETITION IS DENIED, BUT WITHOUT
PREJUDICE."  294 U.S., AT 115. 

FN43  BY THUS STATING THE RULE, WE DO NOT MEAN TO DISTURB THE SETTLED
PRINCIPLES GOVERNING ITS APPLICATION IN CASES OF PRESENTLY AVAILABLE
STATE REMEDIES.  SEE, E.G., BROWN V. ALLEN, 344 U.S. 443, 447-450. 

FN44  TO THE EXTENT THAT ANY DECISIONS OF THIS COURT MAY BE READ TO
SUGGEST A STANDARD OF DISCRETION IN FEDERAL HABEAS CORPUS PROCEEDINGS
DIFFERENT FROM WHAT WE LAY DOWN TODAY, SUCH DECISIONS SHALL BE DEEMED
OVERRULED TO THE EXTENT OF ANY INCONSISTENCY. 

FN45  A STUDY IN 1958 BY THE ADMINISTRATIVE OFFICE OF THE UNITED
STATES COURTS REVEALED THAT IN THE PRECEDING NINE YEARS, A TOTAL OF 24
FEDERAL HABEAS CORPUS PETITIONERS HAD WON RELEASE FROM STATE
PENITENTIARIES.  IT SHOULD BE BORNE IN MIND THAT THE TYPICAL ORDER OF
THE DISTRICT COURT IN SUCH CIRCUMSTANCES IS A CONDITIONAL RELEASE,
PERMITTING THE STATE TO REARREST AND RETRY THE PETITIONER WITHOUT
ACTUALLY DISCHARGING HIM FROM CUSTODY.  BUT THE STUDY DOES NOT SHOW
WHAT NUMBER WERE SUCCESSFULLY RETRIED OR RECONVICTED BY THE STATE
AUTHORITIES.  REPORT NO. 2228 ON HABEAS CORPUS OF THE SENATE COMMITTEE
ON THE JUDICIARY, 85TH CONG., 2D SESS. 28.  THE INFORMATIVENESS OF THIS
STUDY HAS BEEN QUESTIONED.  REITZ, FEDERAL HABEAS CORPUS:
POSTCONVICTION REMEDY FOR STATE PRISONERS, 108 U. OF PA.  L. REV. 461,
479 AND N. 98 (1960).  PROFESSOR REITZ, FROM HIS STUDY OF REPORTED
OPINIONS, SUGGESTS THAT AT LEAST 39 HABEAS PETITIONERS WERE SUCCESSFUL
IN THE 10 YEARS PRECEDING 1960, AT LEAST SOME OF WHOM (IT IS NOT KNOWN
HOW MANY), HOWEVER, WERE LATER RETRIED AND RECONVICTED.  ID., AT 481. 

        APPENDIX TO OPINION OF THE COURT. 

THE JUDICIARY ACT OF FEBRUARY 5, 1867, C. 28, SEC. 1, 14 STAT. 385
386: 

...  THE SEVERAL COURTS OF THE UNITED STATES, AND THE SEVERAL
JUSTICES AND JUDGES OF SUCH COURTS, WITHIN THEIR RESPECTIVE
JURISDICTIONS, IN ADDITION TO THE AUTHORITY ALREADY CONFERRED BY LAW,
SHALL HAVE POWER TO GRANT WRITS OF HABEAS CORPUS IN ALL CASES WHERE ANY
PERSON MAY BE RESTRAINED OF HIS OR HER LIBERTY IN VIOLATION OF THE
CONSTITUTION, OR OF ANY TREATY OR LAW OF THE UNITED STATES; AND IT
SHALL BE LAWFUL FOR SUCH PERSON SO RESTRAINED OF HIS OR HER LIBERTY TO
APPLY TO EITHER OF SAID JUSTICES OR JUDGES FOR A WRIT OF HABEAS CORPUS,
WHICH APPLICATION SHALL BE IN WRITING AND VERIFIED BY AFFIDAVIT, AND
SHALL SET FORTH THE FACTS CONCERNING THE DETENTION OF THE PARTY
APPLYING, IN WHOSE CUSTODY HE OR SHE IS DETAINED, AND BY VIRTUE OF WHAT
CLAIM OR AUTHORITY, IF KNOWN; AND THE SAID JUSTICE OR JUDGE TO WHOM
SUCH APPLICATION SHALL BE MADE SHALL FORTHWITH AWARD A WRIT OF HABEAS
CORPUS, UNLESS IT SHALL APPEAR FROM THE PETITION ITSELF THAT THE PARTY
IS NOT DEPRIVED OF HIS OR HER LIBERTY IN CONTRAVENTION OF THE
CONSTITUTION OR LAWS OF THE UNITED STATES.  SAID WRIT SHALL BE DIRECTED
TO THE PERSON IN WHOSE CUSTODY THE PARTY IS DETAINED, WHO SHALL MAKE
RETURN OF SAID WRIT AND BRING THE PARTY BEFORE THE JUDGE WHO GRANTED
THE WRIT, AND CERTIFY THE TRUE CAUSE OF THE DETENTION OF SUCH PERSON
WITHIN THREE DAYS THEREAFTER, UNLESS SUCH PERSON BE DETAINED BEYOND THE
DISTANCE OF TWENTY MILES; AND IF BEYOND THE DISTANCE OF TWENTY MILES
AND NOT ABOVE ONE HUNDRED MILES, THEN WITHIN TEN DAYS; AND IF BEYOND
THE DISTANCE OF ONE HUNDRED MILES, THEN WITHIN TWENTY DAYS.  AND UPON
THE RETURN OF THE WRIT OF HABEAS CORPUS A DAY SHALL BE SET FOR THE
HEARING OF THE CAUSE, NOT EXCEEDING FIVE DAYS THEREAFTER, UNLESS THE
PARTY PETITIONING SHALL REQUEST A LONGER TIME.   THE PETITIONER MAY
DENY ANY OF THE MATERIAL FACTS SET FORTH IN THE RETURN, OR MAY ALLEGE
ANY FACT TO SHOW THAT THE DETENTION IS IN CONTRAVENTION OF THE
CONSTITUTION OR LAWS OF THE UNITED STATES, WHICH ALLEGATIONS OR DENIALS
SHALL BE MADE ON OATH.  THE SAID RETURN MAY BE AMENDED BY LEAVE OF THE
COURT OR JUDGE BEFORE OR AFTER THE SAME IS FILED, AS ALSO MAY ALL
SUGGESTIONS MADE AGAINST IT, THAT THEREBY THE MATERIAL FACTS MAY BE
ASCERTAINED.  THE SAID COURT OR JUDGE SHALL PROCEED IN A SUMMARY WAY TO
DETERMINE THE FACTS OF THE CASE, BY HEARING TESTIMONY AND THE ARGUMENTS
OF THE PARTIES INTERESTED, AND IF IT SHALL APPEAR THAT THE PETITIONER
IS DEPRIVED OF HIS OR HER LIBERTY IN CONTRAVENTION OF THE CONSTITUTION
OR LAWS OF THE UNITED STATES, HE OR SHE SHALL FORTHWITH BE DISCHARGED
AND SET AT LIBERTY.  AND IF ANY PERSON OR PERSONS TO WHOM SUCH WRIT OF
HABEAS CORPUS MAY BE DIRECTED SHALL REFUSE TO OBEY THE SAME, OR SHALL
NEGLECT OR REFUSE TO MAKE RETURN, OR SHALL MAKE A FALSE RETURN THERETO,
IN ADDITION TO THE REMEDIES ALREADY GIVEN BY LAW, HE OR THEY SHALL BE
DEEMED AND TAKEN TO BE GUILTY OF A MISDEMEANOR, AND SHALL, ON
CONVICTION BEFORE ANY COURT OF COMPETENT JURISDICTION, BE PUNISHED BY
FINE NOT EXCEEDING ONE THOUSAND DOLLARS, AND BY IMPRISONMENT NOT
EXCEEDING ONE YEAR, OR BY EITHER, ACCORDING TO THE NATURE AND
AGGRAVATION OF THE CASE.  FROM THE FINAL DECISION OF ANY JUDGE,
JUSTICE, OR COURT, INFERIOR TO THE CIRCUIT COURT, AN APPEAL MAY BE
TAKEN TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT IN
WHICH SAID CAUSE IS HEARD, AND FROM THE JUDGMENT OF SAID CIRCUIT COURT
TO THE SUPREME COURT OF THE UNITED STATES, ON SUCH TERMS AND UNDER SUCH
REGULATIONS AND ORDERS, AS WELL FOR THE CUSTODY AND APPEARANCE OF THE
PERSON ALLEGED TO BE RESTRAINED OF HIS OR HER LIBERTY, AS FOR SENDING
UP TO THE APPELLATE TRIBUNAL A TRANSCRIPT OF THE PETITION, WRIT OF
HABEAS CORPUS, RETURN THERETO, AND OTHER PROCEEDINGS, AS MAY BE
PRESCRIBED BY THE SUPREME COURT, OR, IN DEFAULT OF SUCH, AS THE JUDGE
HEARING SAID CAUSE MAY PRESCRIBE; AND PENDING SUCH PROCEEDINGS OR
APPEAL, AND UNTIL FINAL JUDGMENT BE RENDERED THEREIN, AND AFTER FINAL
JUDGMENT OF DISCHARGE IN THE SAME, ANY PROCEEDING AGAINST SUCH PERSON
SO ALLEGED TO BE RESTRAINED OF HIS OR HER LIBERTY IN ANY STATE COURT,
OR BY OR UNDER THE AUTHORITY OF ANY STATE, FOR ANY MATTER OR THING SO
HEARD AND DETERMINED, OR IN PROCESS OF BEING HEARD AND DETERMINED,
UNDER AND BY VIRTUE OF SUCH WRIT OF HABEAS CORPUS, SHALL BE DEEMED NULL
AND VOID. 

28 U.S.C. SEC. 2241: 

(A)  WRITS OF HABEAS CORPUS MAY BE GRANTED BY THE SUPREME COURT, ANY
JUSTICE THEREOF, THE DISTRICT COURTS AND ANY CIRCUIT JUDGE WITHIN THEIR
RESPECTIVE JURISDICTIONS  ...  . 

  *         *         *         *         * 

(C)  THE WRIT OF HABEAS CORPUS SHALL NOT EXTEND TO A PRISONER
UNLESS: 

   *         *         *         *         * 

(3)  HE IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS OR
TREATIES OF THE UNITED STATES ...  . 

28 U.S.C. SEC. 2243: 

A COURT, JUSTICE OR JUDGE ENTERTAINING AN APPLICATION FOR A WRIT OF
HABEAS CORPUS SHALL FORTHWITH AWARD THE WRIT OR ISSUE AN ORDER
DIRECTING THE RESPONDENT TO SHOW CAUSE WHY THE WRIT SHOULD NOT BE
GRANTED, UNLESS IT APPEARS FROM THE APPLICATION THAT THE APPLICANT OR
PERSON DETAINED IS NOT ENTITLED THERETO. 

THE WRIT, OR ORDER TO SHOW CAUSE SHALL BE DIRECTED TO THE PERSON
HAVING CUSTODY OF THE PERSON DETAINED.  IT SHALL BE RETURNED WITHIN
THREE DAYS UNLESS FOR GOOD CAUSE ADDITIONAL TIME, NOT EXCEEDING TWENTY
DAYS, IS ALLOWED. 

THE PERSON TO WHOM THE WRIT OR ORDER IS DIRECTED SHALL MAKE A RETURN
CERTIFYING THE TRUE CAUSE OF THE DETENTION. 

WHEN THE WRIT OR ORDER IS RETURNED A DAY SHALL BE SET FOR HEARING,
NOT MORE THAN FIVE DAYS AFTER THE RETURN UNLESS FOR GOOD CAUSE
ADDITIONAL TIME IS ALLOWED. 

UNLESS THE APPLICATION FOR THE WRIT AND THE RETURN PRESENT ONLY
ISSUES OF LAW THE PERSON TO WHOM THE WRIT IS DIRECTED SHALL BE REQUIRED
TO PRODUCE AT THE HEARING THE BODY OF THE PERSON DETAINED. 

THE APPLICANT OR THE PERSON DETAINED MAY, UNDER OATH, DENY ANY OF THE
FACTS SET FORTH IN THE RETURN OR ALLEGE ANY OTHER MATERIAL FACTS. 

THE RETURN AND ALL SUGGESTIONS MADE AGAINST IT MAY BE AMENDED, BY
LEAVE OF COURT, BEFORE OR AFTER BEING FILED. 

THE COURT SHALL SUMMARILY HEAR AND DETERMINE THE FACTS, AND DISPOSE
OF THE MATTER AS LAW AND JUSTICE REQUIRE. 

MR. JUSTICE CLARK, DISSENTING. 

I AGREE FULLY WITH AND JOIN THE OPINION OF MY BROTHER HARLAN.  BEYOND
QUESTION THE FEDERAL COURTS UNTIL TODAY HAVE HAD NO POWER TO RELEASE A
PRISONER IN RESPONDENT NOIA'S PREDICAMENT, THERE BEING NO BASIS FOR
SUCH POWER IN EITHER THE CONSTITUTION OR THE STATUTE.  BUT THE COURT
TODAY IN RELEASING NOIA MAKES AN "ABRUPT BREAK" NOT ONLY WITH THE
CONSTITUTION AND THE STATUTE BUT ALSO WITH ITS PAST DECISIONS,
DISRUPTING THE DELICATE BALANCE OF FEDERALISM SO FOREMOST IN THE MINDS
OF THE FOUNDING FATHERS AND SO UNIQUELY IMPORTANT IN THE FIELD OF LAW
ENFORCEMENT.  THE SHORT OF IT IS THAT NOIA'S INCARCERATION RESTS
ENTIRELY ON AN ADEQUATE AND INDEPENDENT STATE GROUND - NAMELY, THAT HE
KNOWINGLY FAILED TO PERFECT ANY APPEAL FROM HIS CONVICTION OF MURDER. 
WHILE IT MAY BE THAT THE COURT'S "DECISION TODAY SWINGS OPEN NO PRISON
GATES," THE COURT MUST ADMIT IN ALL CANDOR THAT IT EFFECTIVELY SWINGS
CLOSED THE DOORS OF JUSTICE IN THE FACE OF THE STATE, SINCE IT
CERTAINLY CANNOT PROVE ITS CASE 20 YEARS AFTER THE FACT.  IN VIEW OF
THIS UNFORTUNATE TURN OF EVENTS, IT APPEARS IMPORTANT THAT WE CANVASS
THE CONSEQUENCES OF TODAY'S ACTION ON STATE LAW ENFORCEMENT. 

FIRST, THERE CAN BE NO QUESTION BUT THAT A RASH OF NEW APPLICATIONS
FROM STATE PRISONERS WILL POUR INTO THE FEDERAL COURTS, AND 98% OF THEM
WILL BE FRIVOLOUS, IF HISTORY IS ANY GUIDE.  (FN1)  THIS INFLUX WILL
NECESSARILY HAVE AN ADVERSE EFFECT UPON THE DISPOSITION OF MERITORIOUS
APPLICATIONS, FOR, AS MY BROTHER JACKSON SAID, THEY WILL "BE BURIED IN
A FLOOD OF WORTHLESS ONES.  HE WHO MUST SEARCH A HAYSTACK FOR A NEEDLE
IS LIKELY TO END UP WITH THE ATTITUDE THAT THE NEEDLE IS NOT WORTH THE
SEARCH."  BROWN V. ALLEN, 344 U.S. 443, 537 (1953)(CONCURRING
OPINION).  IN FACT, THE COURTS ARE ALREADY SWAMPED WITH APPLICATIONS
WHICH CANNOT, BECAUSE OF SHEER NUMBERS, BE GIVEN MORE THAN CURSORY
ATTENTION.  (FN2) 

SECOND, THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE IN STATE
COURTS RECEIVES A STAGGERING BLOW.  HABEAS CORPUS IS IN EFFECT
SUBSTITUTED FOR APPEAL, SERIOUSLY DISTURBING THE ORDERLY DISPOSITION OF
STATE PROSECUTIONS AND JEOPARDIZING THE FINALITY OF STATE CONVICTIONS
IN DISREGARD OF THE STATES' COMPREHENSIVE PROCEDURAL SAFEGUARDS WHICH,
UNTIL TODAY, HAVE BEEN RESPECTED BY THE FEDERAL COURTS.  ESSENTIAL TO
THE ADMINISTRATION OF JUSTICE IS THE PROMPT ENFORCEMENT OF JUDICIAL
DECREES.  AFTER TODAY STATE JUDGMENTS WILL BE RELEGATED TO A JUDICIAL
LIMBO, SUBJECT TO FEDERAL COLLATERAL ATTACK - AS HERE - A SCORE OF
YEARS LATER DESPITE A DEFENDANT'S WILLFUL FAILURE TO APPEAL. 

THE RIGHTS OF THE STATES TO DEVELOP AND ENFORCE THEIR OWN JUDICIAL
PROCEDURES, CONSISTENT WITH THE FOURTEENTH AMENDMENT, HAVE LONG BEEN
RECOGNIZED AS ESSENTIAL TO THE CONCEPT OF A HEALTHY FEDERALISM.   THOSE
RIGHTS ARE TODAY ATTENUATED IF NOT OBLITERATED IN THE NAME OF A VICTORY
FOR THE "STRUGGLE FOR PERSONAL LIBERTY."  BUT THE CONSTITUTION
COMPREHENDS ANOTHER STRUGGLE OF EQUAL IMPORTANCE AND PLACES UPON OUR
SHOULDERS THE BURDEN OF MAINTAINING IT - THE STRUGGLE FOR LAW AND
ORDER.  I REGRET THAT THE COURT DOES NOT OFTEN RECOGNIZE THAT EACH
DEFEAT IN THAT STRUGGLE CHIPS AWAY INEXORABLY AT THE BASE OF THAT VERY
PERSONAL LIBERTY WHICH IT SEEKS TO PROTECT.  ONE IS REMINDED OF THE
EXCLAMATION OF PHRRHUS:  "ONE MORE SUCH VICTORY  ...  , AND WE ARE
UTTERLY UNDONE." 

THESE CONSIDERATIONS HAVE BEEN OF GREAT CONCERN TO THE JUDICIAL
CONFERENCE OF THE UNITED STATES, WHICH HAS FREQUENTLY SOUGHT TO HAVE
CONGRESS REPAIR THE JUDICIAL LOOPHOLES IN FEDERAL HABEAS CORPUS FOR
STATE PRISONERS.  (FN3)  LIKEWISE, THE CONFERENCE OF CHIEF JUSTICES AT
ITS ANNUAL MEETING HAS OFFICIALLY REGISTERED ITS DISMAY, (FN4) AS HAS
THE NATIONAL ASSOCIATION OF ATTORNEYS GENERAL.  (FN5)  PROPOSED
LEGISLATION SPONSORED BY ONE OR MORE OF THESE GROUPS HAS PASSED IN THE
HOUSE IN THREE SEPARATE SESSIONS, BUT INACTION BY THE SENATE CAUSED
EACH BILL TO DIE ON THE VINE.  (FN6)  THOSE PROPOSALS APPARENTLY WERE
SPARKED BY OUR DECISION IN BROWN V. ALLEN, SUPRA, (FN7) BUT THE COURT
TODAY GOES FAR BEYOND THAT DECISION BY NEGATING ITS COMPANION CASE,
DANIELS V. ALLEN, 344 U.S. 443, 482-487 (1953).  WHILE I HAVE
HERETOFORE OPPOSED SUCH LEGISLATION, I MUST NOW ADMIT THAT IT MAY BE
THE ONLY ALTERNATIVE IN RESTORING THE WRIT OF HABEAS CORPUS TO ITS
PROPER PLACE IN THE JUDICIAL SYSTEM.  THAT PLACE IS ONE OF GREAT
IMPORTANCE - A REMEDY AGAINST ILLEGAL RESTRAINT - BUT IT IS NOT A
SUBSTITUTE FOR OR AN ALTERNATIVE TO APPEAL, NOR IS IT A BURIAL GROUND
FOR VALID STATE PROCEDURES. 

FN1  IN THE 12-YEAR PERIOD FROM 1946 TO 1957 THE PETITIONERS WERE
SUCCESSFUL IN 1.4% OF THE CASES.   H.R. REP. NO. 548, 86TH CONG., 1ST
SESS. 37. 

FN2  THE INCREASE IN NUMBER OF HABEAS CORPUS APPLICATIONS FILED IN
FEDERAL DISTRICT COURTS BY STATE PRISONERS IS ILLUSTRATED BY THE
FOLLOWING FIGURES:    1941       127 

1945       536 

1950       560 

1955       660 

1960       872 

1961       906 

1962     1,232    1962 AND 1959 ANNUAL REPORTS, ADMINISTRATIVE OFFICE
OF U.S. COURTS, PP. II-23 AND 109, RESPECTIVELY. 

FN3  SEE REPORT OF THE COMMITTEE ON HABEAS CORPUS, JUDICIAL
CONFERENCE OF THE UNITED STATES, MARCH 14, 1959, REPRINTED IN H.R. REP.
NO. 548, 86TH CONG., 1ST SESS. 15-20. 

FN4  SEE REPORT OF THE HABEAS CORPUS COMMITTEE OF THE CONFERENCE OF
CHIEF JUSTICES, AUGUST 14, 1954, REPRINTED IN H.R. REP. NO. 1293, 85TH
CONG., 2D SESS. 6-10. 

FN5  SEE RESOLUTION OF NATIONAL ASSOCIATION OF ATTORNEYS GENERAL,
REPRINTED IN HEARINGS ON H.R. 6742, H.R. 4958, H.R. 3216 AND H.R. 2269
BEFORE SUBCOMMITTEE 3 OF THE HOUSE JUDICIARY COMMITTEE, 86TH CONG., 1ST
SESS. 44. 

FN6  SEE H.R. REP. NO. 548, 86TH CONG., 1ST SESS. 4; H.R. 3216
(PROPOSED BY THE JUDICIAL CONFERENCE) WAS PASSED BY THE HOUSE, 105
CONG. REC. 14637, AND REFERRED TO THE SENATE JUDICIARY COMMITTEE, 105
CONG. REC. 14689, BUT WAS NOT REPORTED BY THAT COMMITTEE.  IT WAS
INTRODUCED AGAIN IN THE EIGHTY-SEVENTH CONGRESS AS H.R. 466 AND WAS
REFERRED TO THE HOUSE JUDICIARY COMMITTEE, 107 CONG. REC. 45, BUT NO
FURTHER ACTION IS RECORDED. 

FN7  SEE REPORT OF THE COMMITTEE ON HABEAS CORPUS, NOTE 3, SUPRA, AT
16. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE STEWART
JOIN, DISSENTING. 

THIS DECISION, BOTH IN ITS ABRUPT BREAK WITH THE PAST AND IN ITS
CONSEQUENCES FOR THE FUTURE, IS ONE OF THE MOST DISQUIETING THAT THE
COURT HAS RENDERED IN A LONG TIME. 

"POWER TO GRANT WRIT," WHICH IS PART OF THE FEDERAL HABEAS CORPUS
STATUTE, PROVIDES AMONG OTHER THINGS: 

"(C)  THE WRIT OF HABEAS CORPUS SHALL NOT EXTEND TO A PRISONER
UNLESS: 

*         *         *         *         * 

"(3)  HE IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS OR
TREATIES OF THE UNITED STATES." 

I DISSENT FROM THE COURT'S OPINION AND JUDGMENT FOR THE REASON THAT
THE FEDERAL COURTS HAVE NO POWER, STATUTORY OR CONSTITUTIONAL, TO
RELEASE THE RESPONDENT NOIA FROM STATE DETENTION.  THIS IS BECAUSE HIS
CUSTODY BY NEW YORK DOES NOT VIOLATE ANY FEDERAL RIGHT, SINCE IT IS
PURSUANT TO A CONVICTION WHOSE VALIDITY RESTS UPON AN ADEQUATE AND
INDEPENDENT STATE GROUND WHICH THE FEDERAL COURTS ARE REQUIRED TO
RESPECT. 

A FULL EXPOSITION OF THE MATTER IS NECESSARY, AND I BELIEVE IT WILL
JUSTIFY THE STATEMENT THAT IN WHAT IT DOES TODAY THE COURT HAS TURNED
ITS BACK ON HISTORY AND STRUCK A HEAVY BLOW AT THE FOUNDATIONS OF OUR
FEDERAL SYSTEM. 

             I.

                         DEPARTURE FROM HISTORY. 

THE HISTORY OF FEDERAL HABEAS CORPUS JURISDICTION, I BELIEVE, LEAVES
NO DOUBT THAT TODAY'S DECISION CONSTITUTES A SQUARE REJECTION OF LONG
ACCEPTED PRINCIPLES GOVERNING THE NATURE AND SCOPE OF THE GREAT WRIT. 
(FN1) 

HABEAS CORPUS AD SUBJICIENDUM IS TODAY, AS IT HAS ALWAYS BEEN, A
FUNDAMENTAL SAFEGUARD AGAINST UNLAWFUL CUSTODY.  THE IMPORTANCE OF THIS
PREROGATIVE WRIT, REQUIRING THE BODY OF A PERSON RESTRAINED OF LIBERTY
TO BE BROUGHT BEFORE THE COURT SO THAT THE LAWFULNESS OF THE RESTRAINT
MAY BE DETERMINED, WAS RECOGNIZED IN THE CONSTITUTION, (FN2) AND THE
FIRST JUDICIARY ACT GAVE THE FEDERAL COURTS AUTHORITY TO ISSUE THE WRIT
"AGREEABLE TO THE PRINCIPLES AND USAGES OF LAW."  (FN3)  ALTHOUGH THE
WORDING OF EARLIER STATUTORY PROVISIONS HAS BEEN CHANGED, THE BASIC
QUESTION BEFORE THE COURT TO WHICH THE WRIT IS ADDRESSED HAS ALWAYS
BEEN THE SAME:  IN THE LANGUAGE OF THE PRESENT STATUTE, ON THE BOOKS
SINCE 1867, IS THE DETENTION COMPLAINED OF "IN VIOLATION OF THE
CONSTITUTION OR LAWS OR TREATIES OF THE UNITED STATES"?  SUPRA, P.
448. 

DETENTION CAN OCCUR IN MANY CONTEXTS, AND IN EACH THE SCOPE OF
JUDICIAL INQUIRY WILL DIFFER.  THUS A CHILD MAY BE DETAINED BY A
PARENT, AN ALIEN EXCLUDED BY AN IMMIGRATION OFFICIAL, OR A CITIZEN
ARRESTED BY A POLICEMAN AND HELD WITHOUT BEING BROUGHT TO A
MAGISTRATE.  BUT THE CUSTODY WITH WHICH WE ARE HERE CONCERNED IS THAT
RESULTING FROM A JUDGMENT OF CRIMINAL CONVICTION AND SENTENCE BY A
COURT OF LAW.  AND THE QUESTION BEFORE US IS THE CIRCUMSTANCES UNDER
WHICH THAT CUSTODY MAY BE HELD TO BE INCONSISTENT WITH THE COMMANDS OF
THE FEDERAL CONSTITUTION.  WHAT DOES HISTORY SHOW? 

1.  PRE-1915 PERIOD.  - THE FORMATIVE STAGE OF THE DEVELOPMENT OF
HABEAS CORPUS JURISDICTION MAY BE SAID TO HAVE ENDED IN 1915, THE YEAR
IN WHICH FRANK V. MANGUM, 237 U.S. 309, WAS DECIDED.  DURING THIS
PERIOD THE FEDERAL COURTS, ON APPLICATIONS FOR HABEAS CORPUS
COMPLAINING OF DETENTION PURSUANT TO A JUDGMENT OF CONVICTION AND
SENTENCE, PURPORTED TO EXAMINE ONLY THE JURISDICTION OF THE SENTENCING
TRIBUNAL.  IN THE LEADING CASE OF EX PARTE WATKINS, 3 PET. 193, THE
COURT STATED: 

"AN IMPRISONMENT UNDER A JUDGMENT CANNOT BE UNLAWFUL, UNLESS THAT
JUDGMENT BE AN ABSOLUTE NULLITY; AND IT IS NOT A NULLITY IF THE COURT
HAS GENERAL JURISDICTION OF THE SUBJECT, ALTHOUGH IT SHOULD BE
ERRONEOUS."  3 PET., AT 203. 

MANY SUBSEQUENT DECISIONS, DEALING WITH BOTH STATE AND FEDERAL
PRISONERS, AND INVOLVING BOTH ORIGINAL APPLICATIONS TO THIS COURT FOR
HABEAS CORPUS AND REVIEW OF LOWER COURT DECISIONS, REAFFIRMED THE
LIMITATION OF THE WRIT TO CONSIDERATION OF THE SENTENCING COURT'S
JURISDICTION OVER THE PERSON OF THE DEFENDANT AND THE SUBJECT MATTER OF
THE SUIT.  E.G., EX PARTE PARKS, 93 U.S. 18; ANDREWS V. SWARTZ, 156
U.S. 272; IN RE BELT, 159 U.S. 95; IN RE MORAN, 203 U.S. 96. 

THE CONCEPT OF JURISDICTION, HOWEVER, WAS SUBJECTED TO CONSIDERABLE
STRAIN DURING THIS PERIOD, AND THE STRAIN WAS NOT LESSENED BY THE FACT
THAT UNTIL THE LATTER PART OF THE LAST CENTURY, FEDERAL CRIMINAL
CONVICTIONS WERE NOT GENERALLY REVIEWABLE BY THE SUPREME COURT.  (FN4)
THE EXPANSION OF THE DEFINITION OF JURISDICTION OCCURRED PRIMARILY IN
TWO CLASSES OF CASES:  (1) THOSE IN WHICH THE CONVICTION WAS FOR
VIOLATION OF AN ALLEGEDLY UNCONSTITUTIONAL STATUTE, AND (2) THOSE IN
WHICH THE COURT VIEWED THE DETENTION AS BASED ON SOME CLAIMED
ILLEGALITY IN THE SENTENCE IMPOSED, AS DISTINGUISHED FROM THE JUDGMENT
OF CONVICTION.  AN EXAMPLE OF THE FORMER IS EX PARTE SIEBOLD, 100 U.S.
371, IN WHICH THE COURT CONSIDERED ON ITS MERITS THE CLAIM THAT THE
ACTS UNDER WHICH THE INDICTMENTS WERE FOUND WERE UNCONSTITUTIONAL,
REASONING THAT "AN UNCONSTITUTIONAL LAW IS VOID, AND IS AS NO LAW," AND
THEREFORE "IF THE LAWS ARE UNCONSTITUTIONAL AND VOID, THE CIRCUIT COURT
ACQUIRED NO JURISDICTION OF THE CAUSES."  100 U.S., AT 376-377.  (FN5)
AN EXAMPLE OF THE LATTER IS EX PARTE LANGE, 18 WALL.  163, IN WHICH
THIS COURT HELD THAT IF A VALID SENTENCE HAD BEEN CARRIED OUT, AND IF
THE GOVERNING STATUTE PERMITTED ONLY ONE SENTENCE, THE SENTENCING JUDGE
LACKED JURISDICTION TO IMPOSE FURTHER PUNISHMENT: 

"WHEN THE PRISONER  ...  BY REASON OF A VALID JUDGMENT, HAD FULLY
SUFFERED ONE OF THE ALTERNATIVE PUNISHMENTS TO WHICH ALONE THE LAW
SUBJECTED HIM, THE POWER OF THE COURT TO PUNISH FURTHER WAS GONE."  18
WALL., AT 176.  (FN6) 

IT WAS ALSO DURING THIS PERIOD THAT CONGRESS, IN 1867, FIRST MADE
HABEAS CORPUS AVAILABLE BY STATUTE TO PRISONERS HELD UNDER STATE
AUTHORITY.  ACT OF FEBRUARY 5, 1867, C. 28, SEC. 1, 14 STAT. 385.  IN
THIS 1867 ACT THE COURT NOW SEEMS TO FIND JUSTIFICATION FOR TODAY'S
DECISION, RELYING ON THE STATEMENT OF ONE OF ITS PROPONENTS THAT THE
BILL WAS "COEXTENSIVE WITH ALL THE POWERS THAT CAN BE CONFERRED" ON THE
COURTS AND JUDGES OF THE UNITED STATES.  CONG. GLOBE, 39TH CONG., 1ST
SESS. 4151.  BUT NEITHER THE STATUTE ITSELF, ITS LEGISLATIVE HISTORY,
NOR ITS SUBSEQUENT INTERPRETATION LENDS ANY SUPPORT TO THE VIEW THAT
HABEAS CORPUS JURISDICTION SINCE 1867 HAS BEEN EXERCISABLE WHETHER OR
NOT THE STATE DETENTION COMPLAINED OF RESTED ON DECISION OF A FEDERAL
QUESTION. 

FIRST, THERE IS NOTHING IN THE LANGUAGE OF THE ACT - WHICH SPOKE OF
THE AVAILABILITY OF THE WRIT TO PRISONERS "RESTRAINED OF  ...  LIBERTY
IN VIOLATION OF THE CONSTITUTION  ...  " - TO SUGGEST THAT THERE WAS
ANY CHANGE IN THE NATURE OF THE WRIT AS APPLIED TO ONE HELD PURSUANT TO
A JUDGMENT OF CONVICTION.  THE LANGUAGE WAS THAT TYPICALLY EMPLOYED IN
HABEAS CORPUS CASES, AND, AS WE HAVE SEEN, IT WAS NOT BELIEVED THAT A
PERSON SO HELD WAS RESTRAINED IN VIOLATION OF LAW IF THE SENTENCING
COURT HAD PERSONAL AND SUBJECT MATTER JURISDICTION.  RATHER, THE CHANGE
ACCOMPLISHED BY THE LANGUAGE OF THE ACT RELATED TO THE CLASSES OF
PRISONERS (IN PARTICULAR, STATE AS WELL AS FEDERAL) FOR WHOM THE WRIT
WOULD BE AVAILABLE. 

SECOND, WHAT LITTLE LEGISLATIVE HISTORY THERE IS DOES NOT SUGGEST ANY
CHANGE IN THE NATURE OF THE WRIT.  THE EXTREMELY BRIEF DEBATES
INDICATED ONLY A LACK OF UNDERSTANDING AS TO WHAT THE ACT WOULD
ACCOMPLISH, COUPLED WITH AN EFFORT BY THE PROPONENTS TO MAKE IT CLEAR
THAT THE PURPOSE WAS TO EXTEND THE AVAILABILITY OF THE WRIT TO PERSONS
NOT THEN COVERED; THERE WAS NO INDICATION OF ANY INTENT TO ALTER ITS
SUBSTANTIVE SCOPE.  (FN7)  THUS, LESS THAN 20 YEARS AFTER ENACTMENT, A
CONGRESSIONAL COMMITTEE COULD SAY OF THE 1867 ACT THAT IT WAS NOT
"CONTEMPLATED BY ITS FRAMERS OR  ...  PROPERLY ...  CONSTRUED TO
AUTHORIZE THE OVERTHROW OF THE FINAL JUDGMENTS OF THE STATE COURTS OF
GENERAL JURISDICTION, BY THE INFERIOR FEDERAL JUDGES  ...  ."  (FN8) 

THIRD, CASES DECIDED UNDER THE ACT DURING THIS PERIOD MADE IT CLEAR
THAT THE COURT DID NOT REGARD THE ACT AS CHANGING THE CHARACTER OF THE
WRIT.  IN CONSIDERING THE LAWFULNESS OF THE DETENTION OF STATE
PRISONERS, THE COURT CONTINUED TO CONFINE ITSELF TO QUESTIONS IT
REGARDED AS "JURISDICTIONAL."   SEE, E.G., IN RE RAHRER, 140 U.S. 545;
HARKRADER V. WADLEY, 172 U.S. 148; PETTIBONE V. NICHOLS, 203 U.S. 192. 
AND THE COURT REPEATEDLY HELD THAT HABEAS CORPUS WAS NOT AVAILABLE TO A
STATE PRISONER TO CONSIDER ERRORS, EVEN CONSTITUTIONAL ERRORS, THAT DID
NOT GO TO THE JURISDICTION OF THE SENTENCING COURT.  E.G., IN RE WOOD,
140 U.S. 278; ANDREWS V. SWARTZ, 156 U.S. 272; BERGEMANN V. BACKER, 157
U.S. 655. 

AT THE SAME TIME, IN DEALING WITH APPLICATIONS BY STATE PRISONERS THE
COURT DEVELOPED THE DOCTRINE OF EXHAUSTION OF STATE REMEDIES, A
DOCTRINE NOW EMBODIED IN 28 U.S.C. SEC.  2254.  IN EX PARTE ROYALL, 117
U.S. 241, THE PRISONER HAD BROUGHT FEDERAL HABEAS CORPUS SEEKING
RELEASE FROM HIS DETENTION PENDING A STATE PROSECUTION, AND ALLEGING
THAT THE STATUTE UNDER WHICH HE WAS TO BE TRIED WAS VOID UNDER THE
CONTRACT CLAUSE.  THE POWER OF THE FEDERAL COURT TO ACT IN THIS CASE,
IF THE ALLEGATIONS COULD BE ESTABLISHED, WAS CLEAR SINCE UNDER ACCEPTED
PRINCIPLES THE STATE WOULD HAVE LACKED "JURISDICTION" TO DETAIN THE
PRISONER.  BUT THE COURT OBSERVED THAT THE QUESTION OF
CONSTITUTIONALITY WOULD BE OPEN TO THE PRISONER AT HIS STATE TRIAL AND,
ABSENT ANY SHOWING OF URGENCY, CONSIDERATIONS OF COMITY COUNSELED THE
EXERCISE OF DISCRETION TO WITHHOLD THE WRIT AT THIS EARLY STAGE.  IN
SUBSEQUENT DECISIONS, THE COURT CONTINUED TO INSIST THAT STATE REMEDIES
BE EXHAUSTED, EVEN WHEN THE APPLICANT ALLEGED A LACK OF JURISDICTION IN
STATE AUTHORITIES WHICH, IF TRUE, WOULD HAVE ENABLED THE FEDERAL COURT
TO ACT ON THE APPLICATION IMMEDIATELY.  E.G., EX PARTE FONDA, 117 U.S.
516; COOK V. HART, 146 U.S. 183; NEW YORK V. ENO, 155 U.S. 89.  AS
STATED IN COOK V. HART, 146 U.S., AT 195, "THE PARTY CHARGED WAIVES NO
DEFECT OF JURISDICTION BY SUBMITTING TO A TRIAL OF HIS CASE UPON THE
MERITS  ...  .  SHOULD  ...  (HIS) RIGHTS BE DENIED, HIS REMEDY IN THE
FEDERAL COURT WILL REMAIN UNIMPAIRED."  THE QUESTION WHETHER THE
CONSTITUTION DEPRIVED THE STATE OF JURISDICTION, IN OTHER WORDS, WOULD
REMAIN OPEN UNDER TRADITIONAL DOCTRINE, ON COLLATERAL AS WELL AS DIRECT
ATTACK. 

THERE CAN BE NO DOUBT OF THE LIMITED SCOPE OF HABEAS CORPUS DURING
THIS FORMATIVE PERIOD, AND OF THE CONSISTENT EFFORTS TO CONFINE THE
WRIT TO QUESTIONS OF JURISDICTION.  BUT THE CARDINAL POINT FOR PRESENT
PURPOSES IS THAT IN NO CASE WAS IT HELD, OR EVEN SUGGESTED, THAT HABEAS
CORPUS WOULD BE AVAILABLE TO CONSIDER ANY CLAIMS BY A PRISONER HELD
PURSUANT TO A STATE COURT JUDGMENT WHOSE VALIDITY RESTED ON AN ADEQUATE
NONFEDERAL GROUND.  INDEED, SO LONG AS THE WRIT WAS CONFINED TO CLAIMS
BY STATE PRISONERS THAT THE STATE WAS CONSTITUTIONALLY PRECLUDED FROM
EXERCISING ITS JURISDICTION IN THE PARTICULAR CASE, IT IS DIFFICULT TO
CONCEIVE OF A DECISION TO DETAIN IN SUCH CASES RESTING ON AN ADEQUATE
STATE GROUND.  EVEN WHEN THE CONCEPT OF JURISDICTION WAS EXPANDED, AS
IN EX PARTE SIEBOLD, 100 U.S. 371, AND OTHER DECISIONS, THE MATTERS
OPEN ON HABEAS WERE STILL LIMITED TO THOSE WHICH WERE BELIEVED TO HAVE
DEPRIVED THE SENTENCING COURT OF ALL COMPETENCE TO ACT, AND WHICH
THEREFORE COULD ALWAYS BE RAISED ON COLLATERAL ATTACK.  IT IS FOR THIS
REASON THAT THE ROYALL LINE OF "EXHAUSTION" CASES, RELIED ON SO HEAVILY
BY THE COURT, HAS NO REAL BEARING ON THE PROBLEM BEFORE US.  FOR THOSE
CASES DEALT ONLY WITH THE DISCRETION OF THE COURT TO TAKE ACTION WHICH,
IF THE ALLEGATIONS OF LACK OF STATE JURISDICTION WERE UPHELD, IT WOULD
HAVE HAD POWER TO TAKE EITHER BEFORE OR AFTER STATE CONSIDERATION.  THE
ISSUE HERE, ON THE OTHER HAND, IS ONE OF POWER, AND WHOLLY DIFFERENT
CONSIDERATIONS ARE INVOLVED.    IN THOSE FEW INSTANCES DURING THIS
EARLY PERIOD WHEN THE COURT DISCUSSED QUESTIONS IT DID NOT REGARD AS
JURISDICTIONAL, IT OCCASIONALLY WENT SO FAR AS TO SUGGEST THAT A
CONSTITUTIONAL CLAIM COULD NOT BE RAISED ON HABEAS EVEN IF THE STATE
DECISION TO DETAIN RESTED ON AN INADEQUATE STATE GROUND - THAT THE ONLY
AVENUE OF RELIEF WAS DIRECT REVIEW.  THUS IN ANDREWS V. SWARTZ, 156
U.S. 272, WHERE THE CLAIM MADE ON FEDERAL HABEAS WAS THE SYSTEMATIC
EXCLUSION OF NEGROES FROM A STATE JURY, THE COURT HELD IT "A SUFFICIENT
ANSWER TO THIS CONTENTION THAT THE STATE COURT HAD JURISDICTION BOTH OF
THE OFFENCE CHARGED AND OF THE ACCUSED."  ID., AT 276.  IT CONTINUED: 

"EVEN IF IT BE ASSUMED THAT THE STATE COURT IMPROPERLY DENIED TO THE
ACCUSED  ...  THE RIGHT TO SHOW BY PROOF THAT PERSONS OF HIS RACE WERE
ARBITRARILY EXCLUDED  ...  IT WOULD NOT FOLLOW THAT THE COURT LOST
JURISDICTION OF THE CASE WITHIN THE MEANING OF THE WELL-ESTABLISHED
RULE THAT A PRISONER UNDER CONVICTION AND SENTENCE OF ANOTHER COURT
WILL NOT BE DISCHARGED ON HABEAS CORPUS UNLESS THE COURT THAT PASSED
THE SENTENCE WAS SO FAR WITHOUT JURISDICTION THAT ITS PROCEEDINGS MUST
BE REGARDED AS VOID."  IBID. 

2.  1915-1953 PERIOD.  - THE NEXT STAGE OF DEVELOPMENT MAY BE
DESCRIBED AS BEGINNING IN 1915 WITH FRANK V. MANGUM, 237 U.S. 309, AND
ENDING IN 1953 WITH BROWN V. ALLEN, 344 U.S. 443.  IN FRANK, THE
PRISONER HAD CLAIMED BEFORE THE STATE COURTS THAT THE PROCEEDINGS IN
WHICH HE HAD BEEN CONVICTED FOR MURDER HAD BEEN DOMINATED BY A MOB, AND
THE STATE SUPREME COURT, AFTER CONSIDERATION NOT ONLY OF THE RECORD BUT
OF EXTENSIVE AFFIDAVITS, HAD CONCLUDED THAT MOB DOMINATION HAD NOT BEEN
ESTABLISHED.  (FN9)  FRANK THEN SOUGHT FEDERAL HABEAS, AND THIS COURT
AFFIRMED THE DENIAL OF RELIEF.  BUT IN DOING SO THE COURT RECOGNIZED
THAT FRANK'S ALLEGATION OF MOB DOMINATION RAISED A CONSTITUTIONAL
QUESTION WHICH HE WAS ENTITLED TO HAVE CONSIDERED BY A COMPETENT
TRIBUNAL UNCOERCED BY POPULAR PRESSURES.  SUCH "CORRECTIVE PROCESS" HAD
BEEN AFFORDED BY THE STATE SUPREME COURT, HOWEVER, AND SINCE FRANK HAD
RECEIVED "NOTICE, AND A HEARING, OR AN OPPORTUNITY TO BE HEARD" ON HIS
CONSTITUTIONAL CLAIMS (237 U.S., AT 326), HIS DETENTION WAS NOT IN
VIOLATION OF FEDERAL LAW AND HABEAS CORPUS WOULD NOT LIE. 

IT IS CLEAR THAT A NEW DIMENSION WAS ADDED TO HABEAS CORPUS IN THIS
CASE, FOR IN ADDITION TO QUESTIONS PREVIOUSLY THOUGHT OF AS
"JURISDICTIONAL," THE FEDERAL COURTS WERE NOW TO CONSIDER WHETHER THE
APPLICANT HAD BEEN GIVEN AN ADEQUATE OPPORTUNITY TO RAISE HIS
CONSTITUTIONAL CLAIMS BEFORE THE STATE COURTS.  AND IF NO SUCH
OPPORTUNITY HAD BEEN AFFORDED IN THE STATE COURTS, THE FEDERAL CLAIM
WOULD BE HEARD ON ITS MERITS.  THE COURT THUS REJECTED THE VIEWS
EXPRESSED IN ANDREWS V. SWARTZ, SUPRA, P. 455, BY HOLDING, IN EFFECT,
THAT A CONSTITUTIONAL CLAIM COULD BE HEARD ON HABEAS IF THE STATE'S
REFUSAL TO GIVE IT PROPER CONSIDERATION RESTED ON AN INADEQUATE STATE
GROUND.  BUT HABEAS WOULD NOT LIE TO RECONSIDER CONSTITUTIONAL
QUESTIONS THAT HAD BEEN FAIRLY DETERMINED.  AND A FORTIORI IT WOULD NOT
LIE TO CONSIDER A QUESTION WHEN THE STATE COURT'S REFUSAL TO DO SO
RESTED ON AN ADEQUATE AND INDEPENDENT STATE GROUND. 

IN THIS CONNECTION, IT IS IMPORTANT TO NOTE THE SECTION OF THE
OPINION RELATING TO FRANK'S SEPARATE CONSTITUTIONAL CLAIM THAT HIS
INVOLUNTARY ABSENCE FROM THE COURTROOM AT THE TIME THE VERDICT WAS
RENDERED INVALIDATED THE CONVICTION.  FRANK HAD FAILED TO RAISE THIS
POINT IN HIS MOTION FOR A NEW TRIAL; THE STATE COURT HELD THAT IT HAD
BEEN "WAIVED"; AND THIS COURT DECIDED THAT THE STATE RULE BARRING
ASSERTION OF THE POINT AFTER FAILURE TO RAISE IT IN A MOTION FOR NEW
TRIAL WAS REASONABLE AND DID NOT VIOLATE DUE PROCESS.  (FN10)  CLEARLY,
THE SIGNIFICANCE OF THE COURT'S RULING WAS THAT AS TO THIS
CONSTITUTIONAL CLAIM, WHATEVER ITS MERITS IF THE POINT HAD BEEN
PROPERLY PRESERVED, THERE WAS AN ADEQUATE NONFEDERAL GROUND FOR THE
DETENTION. 

IN NO CASE PRIOR TO BROWN V. ALLEN, I SUBMIT, WAS THERE ANY
SUBSTANTIAL MODIFICATION OF THE CONCEPTS ARTICULATED IN THE FRANK
DECISION.  IN MOORE V. DEMPSEY, 261 U.S. 86, THIS COURT DID REQUIRE A
HEARING ON FEDERAL HABEAS OF A CLAIM SIMILAR TO THAT IN FRANK, OF MOB
DOMINATION OF THE TRIAL, EVEN THOUGH THE STATE APPELLATE COURT HAD
PURPORTED TO PASS ON THE CLAIM, BUT ONLY BY REFUSING TO "ASSUME THAT
THE TRIAL WAS AN EMPTY CEREMONY."  (FN11)  THE DECISION OF THIS COURT
IS SUFFICIENTLY AMBIGUOUS THAT IT SEEMS TO HAVE MEANT ALL THINGS TO ALL
MEN.  (FN12)  BUT I SUGGEST THAT THE DECISION CANNOT BE TAKEN TO HAVE
OVERRULED FRANK; IT DID NOT PURPORT TO DO SO, AND INDEED IT WAS JOINED
BY TWO JUSTICES WHO HAD JOINED IN THE FRANK OPINION.  RATHER, WHAT THE
COURT APPEARS TO HAVE HELD WAS THAT THE STATE APPELLATE COURT'S
PERFUNCTORY TREATMENT OF THE QUESTION OF MOB DOMINATION, AMOUNTING TO
NOTHING MORE THAN RELIANCE ON THE PRESUMPTIVE VALIDITY OF THE TRIAL,
WAS NOT IN FACT ACCEPTABLE CORRECTIVE PROCESS AND FEDERAL HABEAS WOULD
THEREFORE LIE TO CONSIDER THE MERITS OF THE CLAIM.  UNTIL TODAY, THE
COURT HAS CONSISTENTLY SO INTERPRETED THE OPINION, AS IN EX PARTE HAWK,
321 U.S. 114, 118, WHERE MOORE WAS CITED AS AN EXAMPLE OF A CASE IN
WHICH "THE REMEDY AFFORDED BY STATE LAW PROVES IN PRACTICE UNAVAILABLE
OR SERIOUSLY INADEQUATE."  SEE ALSO JENNINGS V. ILLINOIS, 342 U.S. 104,
111. 

CERTAINLY, THERE IS NO BASIS IN THE MOORE OPINION, WHATEVER IT MAY
FAIRLY BE TAKEN TO MEAN, FOR CONCLUDING THAT THE COURT REQUIRED
CONSIDERATION ON FEDERAL HABEAS OF A QUESTION WHICH THE STATE COURT HAD
HAD AN ADEQUATE STATE GROUND FOR REFUSING TO CONSIDER.  THE CLAIM OF
MOB DOMINATION WAS CONSIDERED, ALTHOUGH APPARENTLY INADEQUATELY, BY THE
STATE COURT, AND IT WAS ONLY ON THIS PREMISE THAT THE CLAIM WAS
REQUIRED TO BE HEARD ON HABEAS. 

SUBSEQUENT DECISIONS INVOLVING STATE PRISONERS CONTINUED TO INDICATE
THAT THE CONTROLLING QUESTION ON FEDERAL HABEAS - APART FROM MATTERS
GOING TO LACK OF STATE JURISDICTION IN LIGHT OF FEDERAL LAW - WAS
WHETHER OR NOT THE STATE HAD AFFORDED ADEQUATE OPPORTUNITY TO RAISE THE
FEDERAL CLAIM.  IF NOT, THE FEDERAL CLAIM COULD BE CONSIDERED ON ITS
MERITS.  SEE, E.G., MOONEY V. HOLOHAN, 294 U.S. 103; WHITE V. RAGEN,
324 U.S. 760; WOODS V. NIERSTHEIMER, 328 U.S. 211; CF. JENNINGS V.
ILLINOIS, 342 U.S. 104.  (FN13) 

A DEVELOPMENT PARALLELING THAT IN FRANK V. MANGUM TOOK PLACE DURING
THIS PERIOD WITH REGARD TO FEDERAL PRISONERS.  THE WRIT REMAINED
UNAVAILABLE TO CONSIDER QUESTIONS THAT WERE OR COULD HAVE BEEN RAISED
IN THE ORIGINAL PROCEEDINGS, OR ON DIRECT APPEAL, SEE SUNAL V. LARGE,
332 U.S. 174, BUT IT WAS EMPLOYED TO PERMIT CONSIDERATION OF
CONSTITUTIONAL QUESTIONS THAT COULD NOT OTHERWISE HAVE BEEN ADEQUATELY
PRESENTED TO THE COURTS.  E.G., JOHNSON V. ZERBST, 304 U.S. 458; WALKER
V. JOHNSTON, 312 U.S. 275; WALEY V. JOHNSTON, 316 U.S. 101.  THIS
LIMITED SCOPE OF HABEAS CORPUS, AND ITS STATUTORY SUBSTITUTE 28 U.S.C.
SEC. 2255, IN RELATION TO FEDERAL PRISONERS MAY HAVE SURVIVED BROWN V.
ALLEN AND MAY STILL SURVIVE TODAY.  SEE, E.G., FRANANO V. UNITED
STATES, 303 F.2D 470, CERT. DENIED, 371 U.S.  865.  COMPARE JORDAN V.
UNITED STATES, 352 U.S. 904. 

TO RECAPITULATE, THEN, PRIOR TO BROWN V. ALLEN, HABEAS CORPUS WOULD
NOT LIE FOR A PRISONER WHO WAS IN CUSTODY PURSUANT TO A STATE JUDGMENT
OF CONVICTION BY A COURT OF COMPETENT JURISDICTION IF HE HAD BEEN GIVEN
AN ADEQUATE OPPORTUNITY TO OBTAIN FULL AND FAIR CONSIDERATION OF HIS
FEDERAL CLAIM IN THE STATE COURTS.  CLEARLY, UNDER THIS APPROACH A
DETENTION WAS NOT IN VIOLATION OF FEDERAL LAW IF THE VALIDITY OF THE
STATE CONVICTION ON WHICH THAT DETENTION WAS BASED RESTED ON AN
ADEQUATE NONFEDERAL GROUND. 

3.  POST-1953, BROWN V. ALLEN, PERIOD.  - IN 1953, THIS COURT
RENDERED ITS LANDMARK DECISIONS IN BROWN V. ALLEN, 344 U.S. 443, AND
DANIELS V. ALLEN, REPORTED THEREWITH, 344 U.S., AT 482-487.  (FN14)
BOTH CASES INVOLVED APPLICATIONS FOR FEDERAL HABEAS CORPUS BY PRISONERS
WHO WERE AWAITING EXECUTION PURSUANT TO STATE CONVICTIONS.  IN BOTH
CASES, THE CONSTITUTIONAL CONTENTIONS MADE WERE THAT THE TRIAL COURT
HAD ERRED IN RULING CONFESSIONS ADMISSIBLE AND IN OVERRULING MOTIONS TO
QUASH THE INDICTMENT ON THE BASIS OF ALLEGED DISCRIMINATION IN THE
SELECTION OF JURORS. 

IN BROWN, THESE CONTENTIONS HAD BEEN PRESENTED TO THE HIGHEST COURT
OF THE STATE, ON DIRECT APPEAL FROM THE CONVICTION, AND HAD BEEN
REJECTED BY THAT COURT ON THE MERITS, STATE V. BROWN, 233 N.C. 202, 63
S.E.2D 99, AFTER WHICH THIS COURT HAD DENIED CERTIORARI, 341 U.S. 943. 
AT THIS POINT, THE COURT HELD, BROWN WAS ENTITLED TO FULL
RECONSIDERATION OF THESE CONSTITUTIONAL CLAIMS, WITH A HEARING IF
APPROPRIATE, IN AN APPLICATION TO A FEDERAL DISTRICT COURT FOR HABEAS
CORPUS. 

IT IS MANIFEST THAT THIS DECISION SUBSTANTIALLY EXPANDED THE SCOPE OF
INQUIRY ON AN APPLICATION FOR FEDERAL HABEAS CORPUS.  (FN15)  FRANK V.
MANGUM AND MOORE V. DEMPSEY HAD DENIED THAT THE FEDERAL COURTS IN
HABEAS CORPUS SAT TO DETERMINE WHETHER ERRORS OF LAW, EVEN
CONSTITUTIONAL LAW, HAD BEEN MADE IN THE ORIGINAL TRIAL AND APPELLATE
PROCEEDINGS.  UNDER THE DECISION IN BROWN, IF A PETITIONER COULD SHOW
THAT THE VALIDITY OF A STATE DECISION TO DETAIN RESTED ON A
DETERMINATION OF A CONSTITUTIONAL CLAIM, AND IF HE ALLEGED THAT
DETERMINATION TO BE ERRONEOUS, THE FEDERAL COURT HAD THE RIGHT AND THE
DUTY TO SATISFY ITSELF OF THE CORRECTNESS OF THE STATE DECISION. 

BUT WHAT IF THE VALIDITY OF THE STATE DECISION TO DETAIN RESTED NOT
ON THE DETERMINATION OF A FEDERAL CLAIM BUT RATHER ON AN ADEQUATE
NONFEDERAL GROUND WHICH WOULD HAVE BARRED DIRECT REVIEW BY THIS COURT? 
THAT WAS THE QUESTION IN DANIELS.  THE ATTORNEY FOR THE PETITIONERS IN
THAT CASE HAD FAILED TO MAIL THE APPEAL PAPERS ON THE LAST DAY FOR
FILING, AND ALTHOUGH HE DELIVERED THEM BY HAND THE NEXT DAY, THE STATE
SUPREME COURT REFUSED TO ENTERTAIN THE APPEAL, RULING THAT IT HAD NOT
BEEN FILED ON TIME.  THIS RULING, THIS COURT HELD, BARRED FEDERAL
HABEAS CORPUS CONSIDERATION OF THE CLAIMS THAT THE STATE APPELLATE
COURT HAD REFUSED TO CONSIDER.  LANGUAGE IN MR. JUSTICE REED'S OPINION
FOR THE COURT APPEARED TO SUPPORT THE RESULT ALTERNATIVELY IN TERMS OF
WAIVER, (FN16) FAILURE TO EXHAUST STATE REMEDIES, (FN17) AND THE
EXISTENCE OF AN ADEQUATE STATE GROUND.  (FN18) BUT WHILE THE
EXPLANATION MAY HAVE BEEN AMBIGUOUS, THE RESULT WAS CLEAR:  HABEAS
CORPUS WOULD NOT LIE FOR A PRISONER WHO WAS DETAINED PURSUANT TO A
STATE JUDGMENT WHICH, IN THE VIEW OF THE MAJORITY IN DANIELS, RESTED ON
A REASONABLE APPLICATION OF THE STATE'S OWN PROCEDURAL REQUIREMENTS. 
MOREOVER, THE ISSUE WAS PLAINLY VIEWED AS ONE OF AUTHORITY, NOT OF
DISCRETION.  344 U.S., AT 485. 

I DO NOT PAUSE TO RECONSIDER HERE THE QUESTION WHETHER THE STATE
GROUND IN DANIELS WAS AN ADEQUATE ONE; PERSUASIVE ARGUMENTS CAN BE MADE
THAT IT WAS NOT.  THE IMPORTANT POINT FOR PRESENT PURPOSES IS THAT THE
APPROACH IN DANIELS WAS WHOLLY CONSISTENT WITH ESTABLISHED PRINCIPLES
IN THE FIELD OF HABEAS CORPUS JURISDICTION.  THE PROBLEM, HOWEVER, HAD
BEEN BROUGHT INTO SHARPER FOCUS BY THE RESULT IN BROWN.  ONCE IT IS
MADE CLEAR THAT THE QUESTIONS OPEN ON FEDERAL HABEAS EXTEND TO SUCH
MATTERS AS THE ADMISSIBILITY OF CONFESSIONS, OR OF OTHER EVIDENCE, THE
POSSIBILITY THAT INQUIRY MAY BE PRECLUDED BY THE EXISTENCE OF A STATE
GROUND ADEQUATE TO SUPPORT THE JUDGMENT IS SUBSTANTIALLY INCREASED. 

ISSUES SIMILAR TO THOSE IN DANIELS NEXT CAME BEFORE THE COURT IN
IRVIN V. DOWD, 359 U.S. 394.  IN THAT CASE, THE STATE COURT'S DECISION
AFFIRMING IRVIN'S CONVICTION FOR MURDER WAS AMBIGUOUS AND IT COULD HAVE
BEEN INTERPRETED TO REST ON A STATE GROUND EVEN THOUGH IRVIN'S FEDERAL
CONSTITUTIONAL CLAIMS WERE CONSIDERED.  IRVIN V. STATE, 236 IND.  384,
139 N.E.2D 898; SEE ALSO THE DISSENTING OPINION OF THIS WRITER IN IRVIN
V. DOWD, SUPRA, 412.  THIS COURT, IN REVERSING A DISMISSAL OF AN
APPLICATION FOR FEDERAL HABEAS CORPUS, CONCLUDED THAT THE STATE COURT
DECISION HAD RESTED ON DETERMINATION OF IRVIN'S FEDERAL CLAIMS, AND
HELD THAT THOSE CLAIMS COULD THEREFORE BE CONSIDERED ON FEDERAL
HABEAS.  THE MAJORITY APPEARED TO APPROACH THE PROBLEM AS ONE OF
EXHAUSTION, (FN19) BUT THE BASIC DETERMINATION WAS THAT THE STATE COURT
JUDGMENT, PURSUANT TO WHICH IRVIN WAS DETAINED, DID NOT REST ON AN
APPLICATION OF THE STATE'S PROCEDURAL RULES. 

THIS BRINGS US TO THE PRESENT CASE.  THERE CAN, I THINK, BE NO DOUBT
THAT TODAY'S HOLDING - THAT FEDERAL HABEAS WILL LIE DESPITE THE
EXISTENCE OF AN ADEQUATE AND INDEPENDENT NONFEDERAL GROUND FOR THE
JUDGMENT PURSUANT TO WHICH THE APPLICANT IS DETAINED - IS WHOLLY
UNPRECEDENTED.  INDEED, IT CONSTITUTES A DIRECT REJECTION OF AUTHORITY
THAT IS SQUARELY TO THE CONTRARY.  THAT THE RESULT NOW REACHED IS A
NOVEL ONE DOES NOT, OF COURSE, MEAN THAT IT IS NECESSARILY INCORRECT OR
UNWISE.  BUT A DECISION WHICH FINDS VIRTUALLY NO SUPPORT IN MORE THAN A
CENTURY OF THIS COURT'S EXPERIENCE SHOULD CERTAINLY BE SUBJECT TO THE
MOST CAREFUL SCRUTINY. 

II.

                        CONSTITUTIONAL BARRIER. 

THE TRUE SIGNIFICANCE OF TODAY'S DECISION CAN PERHAPS BEST BE LAID
BARE IN TERMS OF A HYPOTHETICAL CASE PRESENTING QUESTIONS OF THE POWERS
OF THIS COURT ON DIRECT REVIEW, AND OF A FEDERAL DISTRICT COURT ON
HABEAS CORPUS. 

1.  ON DIRECT REVIEW.  - ASSUME THAT A MAN IS INDICTED, AND HELD FOR
TRIAL IN A STATE COURT, BY A GRAND JURY FROM WHICH MEMBERS OF HIS RACE
HAVE BEEN SYSTEMATICALLY EXCLUDED.  ASSUME FURTHER THAT THE STATE
REQUIRES ANY OBJECTION TO THE COMPOSITION OF THE GRAND JURY TO BE
RAISED PRIOR TO THE VERDICT, THAT NO SUCH OBJECTION IS MADE, AND THAT
THE DEFENDANT SEEKS TO RAISE THE POINT FOR THE FIRST TIME ON APPEAL
FROM HIS CONVICTION.  IF THE STATE APPELLATE COURT REFUSES TO CONSIDER
THE CLAIM BECAUSE IT WAS RAISED TOO LATE, AND IF CERTIORARI IS SOUGHT
AND GRANTED, THE INITIAL QUESTION BEFORE THIS COURT WILL BE WHETHER
THERE WAS AN ADEQUATE STATE GROUND FOR THE JUDGMENT BELOW.  IF THE
PETITIONER WAS REPRESENTED BY COUNSEL NOT SHOWN TO BE INCOMPETENT, AND
IF THE NECESSARY INFORMATION TO MAKE THE OBJECTION IS NOT SHOWN TO HAVE
BEEN UNAVAILABLE AT THE TIME OF TRIAL, IT IS CERTAIN THAT THE JUDGMENT
OF CONVICTION WILL STAND, DESPITE THE FACT THE INDICTMENT WAS OBTAINED
IN VIOLATION OF THE PETITIONER'S CONSTITUTIONAL RIGHTS.  (FN20)    WHAT
IS THE REASON FOR THE RULE THAT AN ADEQUATE AND INDEPENDENT STATE
GROUND OF DECISION BARS SUPREME COURT REVIEW OF THAT DECISION - A RULE
WHICH, OF COURSE, IS AS APPLICABLE TO PROCEDURAL AS TO SUBSTANTIVE
GROUNDS?  IN MURDOCK V. MEMPHIS, 20 WALL.  590, 632-636, IT WAS
CONCLUDED THAT UNDER THE GOVERNING STATUTE (I) THE COURT DID NOT HAVE
JURISDICTION, ON REVIEW OF A STATE DECISION, TO EXAMINE AND DECIDE
"QUESTIONS NOT OF A FEDERAL CHARACTER," ID., AT 633, AND (II) AN
ERRONEOUS DECISION OF A FEDERAL QUESTION BY A STATE COURT COULD NOT
WARRANT REVERSAL IF THERE WERE: 

"ANY OTHER MATTER OR ISSUE ADJUDGED BY THE STATE COURT, WHICH IS
SUFFICIENTLY BROAD TO MAINTAIN THE JUDGMENT OF THAT COURT,
NOTWITHSTANDING THE ERROR IN DECIDING THE ISSUE RAISED BY THE FEDERAL
QUESTION."  ID., AT 636. 

BUT AS THE COURT IN MURDOCK SO STRONGLY IMPLIED, AND AS EMPHASIZED IN
SUBSEQUENT DECISIONS, THE ADEQUATE STATE GROUND RULE HAS ROOTS FAR
DEEPER THAN THE STATUTES GOVERNING OUR JURISDICTION, AND RESTS ON
FUNDAMENTALS THAT TOUCH THIS COURT'S HABEAS CORPUS JURISDICTION EQUALLY
WITH ITS DIRECT REVIEWING POWER.  AN EXAMINATION OF THE ALTERNATIVES
THAT MIGHT CONCEIVABLY BE FOLLOWED WILL, I SUBMIT, CONFIRM THAT THE
RULE IS ONE OF CONSTITUTIONAL DIMENSIONS GOING TO THE HEART OF THE
DIVISION OF JUDICIAL POWERS IN A FEDERAL SYSTEM. 

ONE ALTERNATIVE TO THE PRESENT RULE WOULD BE FOR THE COURT TO REVIEW
AND DECIDE ANY FEDERAL QUESTIONS IN THE CASE, EVEN IF THE DETERMINATION
OF NONFEDERAL QUESTIONS WERE ADEQUATE TO SUSTAIN THE JUDGMENT BELOW,
AND THEN TO SEND THE CASE BACK TO THE STATE COURT FOR FURTHER
CONSIDERATION.  BUT IT NEEDS NO EXTENDED ANALYSIS TO DEMONSTRATE THAT
SUCH ACTION WOULD EXCEED THIS COURT'S POWERS UNDER ARTICLE III.  AS
STATED IN HERB V. PITCAIRN, 324 U.S. 117, 126: 

"OUR POWER IS TO CORRECT WRONG JUDGMENTS, NOT TO REVISE OPINIONS.  WE
ARE NOT PERMITTED TO RENDER AN ADVISORY OPINION, AND IF THE SAME
JUDGMENT WOULD BE RENDERED BY THE STATE COURT AFTER WE CORRECTED ITS
VIEWS OF FEDERAL LAWS, OUR REVIEW COULD AMOUNT TO NOTHING MORE THAN AN
ADVISORY OPINION." 

ANOTHER ALTERNATIVE, WHICH WOULD AVOID THE PROBLEM OF ADVISORY
OPINIONS, WOULD BE TO TAKE THE ENTIRE CASE AND TO REVIEW ON THE MERITS
THE STATE COURT'S DECISION OF EVERY QUESTION IN IT.  FOR EXAMPLE, IN
OUR HYPOTHETICAL CASE THE COURT MIGHT CONSIDER ON ITS MERITS THE
QUESTION WHETHER THE STATE COURT CORRECTLY RULED THAT UNDER STATE LAW
OBJECTIONS TO THE COMPOSITION OF THE GRAND JURY MUST BE MADE PRIOR TO
THE VERDICT. 

TO A LIMITED EXTENT, OF COURSE, THIS PROCEDURAL RULING OF THE STATE
COURT RAISES FEDERAL AS WELL AS STATE QUESTIONS.  IT IS CLEAR THAT A
STATE MAY NOT PRECLUDE SUPREME COURT REVIEW OF FEDERAL CLAIMS BY
DISCRIMINATING AGAINST OR EVADING THE ASSERTION OF A FEDERAL RIGHT, AND
INDEED THAT STATE PROCEDURAL GROUNDS FOR REFUSAL TO CONSIDER A FEDERAL
CLAIM MUST REST ON A "FAIR OR SUBSTANTIAL BASIS."  (FN21)  OCCASIONALLY
THIS MEANS THAT A STATE PROCEDURAL RULE WHICH MAY PROPERLY PRECLUDE THE
RAISING OF STATE CLAIMS IN A STATE COURT CANNOT THWART REVIEW OF
FEDERAL CLAIMS IN THIS COURT.  (FN22)  THESE PRINCIPLES ARE INHERENT IN
THE CONCEPT THAT A STATE GROUND, TO BE OF SUFFICIENT BREADTH TO SUPPORT
THE JUDGMENT, MUST BE BOTH "ADEQUATE" AND "INDEPENDENT." 

BUT DETERMINATION OF THE ADEQUACY AND INDEPENDENCE OF THE STATE
GROUND, I SUBMIT, MARKS THE CONSITUTIONAL LIMIT OF OUR POWER IN THIS
SPHERE.  THE REASON WHY THIS IS SO WAS PERHAPS MOST ARTICULATELY
EXPRESSED IN A DIFFERENT BUT CLOSELY RELATED CONTEXT BY MR. JUSTICE
FIELD IN HIS OPINION IN BALTIMORE & O.R. CO. V. BAUGH, 149 U.S. 368,
401.  HE STATED, IN A PASSAGE QUOTED WITH APPROVAL BY THE COURT IN THE
HISTORIC DECISION IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, 78-79: 

"THE CONSTITUTION OF THE UNITED STATES  ...  RECOGNIZES AND PRESERVES
THE AUTONOMY AND INDEPENDENCE OF THE STATES - INDEPENDENCE IN THEIR
LEGISLATIVE AND INDEPENDENCE IN THEIR JUDICIAL DEPARTMENTS. 
SUPERVISION OVER EITHER THE LEGISLATIVE OR THE JUDICIAL ACTION OF THE
STATES IS IN NO CASE PERMISSIBLE EXCEPT AS TO MATTERS BY THE
CONSTITUTION SPECIFICALLY AUTHORIZED OR DELEGATED TO THE UNITED
STATES.  ANY INTERFERENCE WITH EITHER, EXCEPT AS THUS PERMITTED, IS AN
INVASION OF THE AUTHORITY OF THE STATE AND, TO THAT EXTENT, A DENIAL OF
ITS INDEPENDENCE." 

FOR THIS COURT TO GO BEYOND THE ADEQUACY OF THE STATE GROUND AND TO
REVIEW AND DETERMINE THE CORRECTNESS OF THAT GROUND ON ITS MERITS
WOULD, IN OUR HYPOTHETICAL CASE, BE TO ASSUME FULL CONTROL OVER A
STATE'S PROCEDURES FOR THE ADMINISTRATION OF ITS OWN CRIMINAL JUSTICE. 
THIS IS AND MUST BE BEYOND OUR POWER IF THE FEDERAL SYSTEM IS TO EXIST
IN SUBSTANCE AS WELL AS FORM.  THE RIGHT OF THE STATE TO REGULATE ITS
OWN PROCEDURES GOVERNING THE CONDUCT OF LITIGANTS IN ITS COURTS, AND
ITS INTEREST IN SUPERVISION OF THOSE PROCEDURES, STAND ON THE SAME
CONSTITUTIONAL PLANE AS ITS RIGHT AND INTEREST IN FRAMING "SUBSTANTIVE"
LAWS GOVERNING OTHER ASPECTS OF THE CONDUCT OF THOSE WITHIN ITS
BORDERS. 

THERE IS STILL A THIRD POSSIBLE COURSE THIS COURT MIGHT FOLLOW IF IT
WERE TO REJECT THE ADEQUATE STATE GROUND RULE.  THE ACT OF 1867, WHICH
IN SEC. 1 EXTENDED THE HABEAS CORPUS JURISDICTION TO STATE PRISONERS
DETAINED IN VIOLATION OF FEDERAL LAW, IN SEC. 2 GAVE THE SUPREME COURT
THE AUTHORITY, IN CASES COMING FROM THE STATE COURTS, TO ORDER
EXECUTION DIRECTLY WITHOUT REMANDING THE CASE.  14 STAT. 385, 386-387. 
THAT AUTHORITY, WHICH HAS BEEN EXERCISED AT LEAST ONCE, (FN23) REMAINED
UNIMPAIRED THROUGH THE MODIFICATIONS OF APPELLATE AND CERTIORARI
JURISDICTION, (FN24) AND EXISTS TODAY.  (FN25)  ACTING PURSUANT TO THAT
AUTHORITY IN OUR HYPOTHETICAL CASE, THIS COURT MIGHT GRANT CERTIORARI,
"IGNORE" THE STATE GROUND OF DECISION, DECIDE THE FEDERAL QUESTION AND,
INSTEAD OF MERELY REMANDING THE CASE, ISSUE A WRIT REQUIRING THE
PETITIONER'S RELEASE FROM CUSTODY.  BY THIS SIMPLE DEVICE, THE COURT,
IT MIGHT BE ARGUED, WOULD AVOID PROBLEMS OF ADVISORY OPINIONS WHILE AT
THE SAME TIME REFRAINING FROM CONSIDERATIONS OF QUESTIONS OF STATE
LAW. 

BUT APART FROM THE UNSEEMLINESS OF SUCH A DISPOSITION, IT IS APPARENT
THAT WHAT THE COURT WOULD ACTUALLY BE DOING WOULD BE TO DECIDE THE
STATE LAW QUESTION SUB SILENTIO AND TO REVERSE THE STATE COURT JUDGMENT
ON THAT QUESTION.  FOR IF THE PETITIONER IS DETAINED PURSUANT TO THE
JUDGMENT, AND HIS DETENTION IS TO BE TERMINATED, THAT MUST MEAN THAT
THE STATE GROUND IS NOT ADEQUATE TO SUPPORT THE ONLY PURPOSE FOR WHICH
THE JUDGMENT WAS RENDERED.  THE JUDGMENT, IN OTHER WORDS, BECOMES A
NULLITY. 

MOREOVER, THE FUTURE EFFECT OF SUCH A DISPOSITION IS PRECISELY THE
SAME AS A REVERSAL ON THE MERITS OF THE QUESTION OF STATE LAW.  IF
NONCOMPLIANCE WITH A STATE RULE REQUIRING A PARTICULAR CONSTITUTIONAL
CLAIM TO BE RAISED BEFORE VERDICT DOES NOT PRECLUDE CONSIDERATION OF
THE CLAIM BY THIS COURT, THEN THE RULE IS INVALID IN EVERY SIGNIFICANT
SENSE, SINCE NO JUDGMENT BASED ON ITS APPLICATION CAN EVER BE
EFFECTIVE. 

IN SHORT, THE CONSTITUTIONAL INFIRMITIES OF SUCH A DISPOSITION BY
THIS COURT ARE THE SAME AS THOSE INHERENT IN REVIEW OF THE STATE
QUESTION ON ITS MERITS.  THE VICE, HOWEVER, IS GREATER BECAUSE THE
COURT WOULD, IN ACTUALITY, BE INVALIDATING A STATE RULE WITHOUT EVEN
PURPORTING TO CONSIDER IT. 

2.  ON HABEAS CORPUS.  - THE ADEQUATE STATE GROUND DOCTRINE THUS
FINDS ITS SOURCE IN BASIC CONSTITUTIONAL PRINCIPLES, AND THE QUESTION
BEFORE US IS WHETHER THIS IS AS TRUE IN A COLLATERAL ATTACK IN HABEAS
CORPUS AS ON DIRECT REVIEW.  ASSUME, THEN, THAT AFTER DISMISSAL OF THE
WRIT OF CERTIORARI IN OUR HYPOTHETICAL CASE, THE PRISONER SEEKS HABEAS
CORPUS IN A FEDERAL DISTRICT COURT, AGAIN COMPLAINING OF THE
COMPOSITION OF THE GRAND JURY THAT INDICTED HIM.  IS THAT FEDERAL COURT
CONSTITUTIONALLY MORE FREE THAN THE SUPREME COURT ON DIRECT REVIEW TO
"IGNORE" THE ADEQUATE STATE GROUND, PROCEED TO THE FEDERAL QUESTION,
AND ORDER THE PRISONER'S RELEASE? 

THE ANSWER MUST BE THAT IT IS NOT.  OF COURSE, AS THE MAJORITY
STATES, A JUDGMENT IS NOT A "JURISDICTIONAL PREREQUISITE" TO A HABEAS
CORPUS APPLICATION, ANTE, P. 430, BUT THAT IS WHOLLY IRRELEVANT.  THE
POINT IS THAT IF THE APPLICANT IS DETAINED PURSUANT TO A JUDGMENT,
TERMINATION OF THE DETENTION NECESSARILY NULLIFIES THE JUDGMENT.  THE
FACT THAT A DISTRICT COURT ON HABEAS HAS FEWER CHOICES THAN THE SUPREME
COURT, SINCE IT CAN ONLY ACT ON THE BODY OF THE PRISONER, DOES NOT
ALTER THE SIGNIFICANCE OF THE EXERCISE OF ITS POWER.  IN HABEAS AS ON
DIRECT REVIEW, ORDERING THE PRISONER'S RELEASE INVALIDATES THE JUDGMENT
OF CONVICTION AND RENDERS INEFFECTIVE THE STATE RULE RELIED UPON TO
SUSTAIN THAT JUDGMENT.  TRY AS THE MAJORITY DOES TO TURN HABEAS CORPUS
INTO A ROVING COMMISSION OF INQUIRY INTO EVERY POSSIBLE INVASION OF THE
APPLICANT'S CIVIL RIGHTS THAT MAY EVER HAVE OCCURRED, IT CANNOT DIVORCE
THE WRIT FROM A JUDGMENT OF CONVICTION IF THAT JUDGMENT IS THE BASIS OF
THE DETENTION. 

THUS IN THE PRESENT CASE IF THIS COURT HAD GRANTED CERTIORARI TO
REVIEW THE STATE'S DENIAL OF CORAM NOBIS, HAD CONSIDERED THE COERCED
CONFESSION CLAIM, AND HAD ORDERED NOIA'S RELEASE, THE NECESSARY EFFECTS
OF THAT DISPOSITION WOULD HAVE BEEN (1) TO SET ASIDE THE CONVICTION AND
(2) TO INVALIDATE APPLICATION OF THE NEW YORK RULE REQUIRING THE CLAIM
TO BE RAISED ON DIRECT APPEAL IN ORDER TO BE PRESERVED.  IT IS, I
THINK, BEYOND DISPUTE THAT THE COURT DOES EXACTLY THE SAME THING BY
AFFIRMING THE DECISION BELOW IN THIS CASE.  IN DOING SO, THE COURT
EXCEEDS ITS CONSTITUTIONAL POWER IF IN FACT THE STATE GROUND RELIED
UPON TO SUSTAIN THE JUDGMENT OF CONVICTION IS AN ADEQUATE ONE.  SEE PP.
472-476, INFRA.  THE EFFECT OF THE APPROACH ADOPTED BY THE COURT IS,
INDEED, TO DO AWAY WITH THE ADEQUATE STATE GROUND RULE ENTIRELY IN
EVERY STATE CASE, INVOLVING A FEDERAL QUESTION, IN WHICH DETENTION
FOLLOWS FROM A JUDGMENT. 

THE MAJORITY SEEMS TO RECOGNIZE AT LEAST SOME OF THE CONSEQUENCES OF
ITS DECISION WHEN IT ATTEMPTS TO FILL THE VOID CREATED BY ABOLITION OF
THE ADEQUATE STATE GROUND RULE IN STATE CRIMINAL CASES.  BUT THE
SUBSTITUTE IT HAS FASHIONED - THAT OF "CONSCIOUS WAIVER" OR "DELIBERATE
BYPASSING" OF STATE PROCEDURES - IS, AS I SHALL NEXT TRY TO SHOW,
WHOLLY UNSATISFACTORY. 

                                  III. 

                        ATTEMPTED PALLIATIVES. 

APPARENTLY ON THE BASIS OF A DOCTRINE ANALOGOUS TO THAT OF "UNCLEAN
HANDS," THE COURT STATES THAT A FEDERAL JUDGE, IN HIS DISCRETION, MAY
DENY RELIEF ON HABEAS CORPUS TO ONE WHO HAS UNDERSTANDINGLY AND
KNOWINGLY REFUSED TO AVAIL HIMSELF OF STATE PROCEDURES.  BUT SUCH A
TEST, IF IT IS MEANT TO CONSTITUTE A LIMITATION ON INTERFERENCE WITH
STATE ADMINISTRATION OF CRIMINAL JUSTICE, FALLS FAR SHORT OF THE MARK. 
IN FACT, AS EXPLAINED AND APPLIED IN THIS CASE, IT AMOUNTS TO NO
LIMITATION AT ALL. 

FIRST, THE COURT EXPLAINS THAT THE TEST IS ONE CALLING FOR THE
EXERCISE OF THE DISTRICT JUDGE'S DISCRETION, THAT THE JUDGE MAY, IN
OTHER WORDS, GRANT RELIEF EVEN WHEN A CONSCIOUS WAIVER HAS BEEN SHOWN. 
THUS THE COURT DOES NOT MERELY TELL THE STATES THAT, IF THEY WISH TO
DETAIN THOSE WHOM THEY CONVICT, THEY MUST REVAMP THEIR ENTIRE SYSTEMS
OF CRIMINAL PROCEDURES SO THAT NO FORFEITURE MAY BE IMPOSED IN THE
ABSENCE OF DELIBERATE CHOICE; THE STATES ARE ALSO WARNED THAT EVEN A
DELIBERATE, EXPLICIT, INTELLIGENT CHOICE NOT TO ASSERT A CONSTITUTIONAL
RIGHT MAY NOT PRECLUDE ITS ASSERTION ON FEDERAL HABEAS. 

SECOND, THE COURT STATES (AS IT MUST IF IT IS TO ADHERE TO ITS
DEFINITION) THAT "A CHOICE MADE BY COUNSEL NOT PARTICIPATED IN BY THE
PETITIONER DOES NOT AUTOMATICALLY BAR RELIEF."  ANTE, P. 439.  IT IS
TRUE THAT THERE ARE CASES IN WHICH THE ADEQUACY OF THE STATE GROUND
NECESSARILY TURNS ON THE QUESTION WHETHER THE DEFENDANT HIMSELF
EXPRESSLY AND INTELLIGENTLY WAIVED A CONSTITUTIONAL RIGHT.  FOREMOST
AMONG THESE ARE THE CASES INVOLVING RIGHT TO COUNSEL, FOR THE COURT HAS
MADE IT CLEAR THAT THIS RIGHT CANNOT BE FOREGONE WITHOUT DELIBERATE
CHOICE BY THE DEFENDANT.  SEE JOHNSON V. ZERBST, 304 U.S. 458; CARNLEY
V. COCHRAN, 369 U.S. 506.  BUT TO CARRY THIS PRINCIPLE OVER IN FULL
FORCE TO CASES IN WHICH A DEFENDANT IS REPRESENTED BY COUNSEL NOT SHOWN
TO BE INCOMPETENT IS TO UNDERMINE THE ENTIRE REPRESENTATIONAL SYSTEM. 
WE HAVE MANIFESTED AN EVERINCREASING AWARENESS OF THE FUNDAMENTAL
IMPORTANCE OF REPRESENTATION BY COUNSEL, SEE GIDEON V. WAINWRIGHT,
ANTE, P. 335, AND YET TODAY THE COURT SUGGESTS THAT THE STATE MAY NO
MORE HAVE A RULE OF FORFEITURE FOR ONE WHO IS COMPETENTLY REPRESENTED
THAN FOR ONE WHO IS NOT.  THE EFFECT ON STATE PROCEDURAL RULES MAY BE
DISASTROUS. 

THIRD, WHEN IT COMES TO APPLY "WAIVER" TEST IN THIS CASE, THE COURT
THEN IN EFFECT READS ITS OWN CREATION OUT OF EXISTENCE.  RECOGNIZING
THAT NOIA HIMSELF DECIDED NOT TO APPEAL, AND THAT HE APPARENTLY MADE
THIS CHOICE AFTER CONSULTATION WITH COUNSEL, THE COURT STATES THAT HIS
DECISION WAS NEVERTHELESS NOT A "WAIVER."  SINCE A NEW TRIAL MIGHT HAVE
RESULTED IN A DEATH SENTENCE, NOIA WAS, IN THE MAJORITY'S VIEW,
CONFRONTED WITH A "GRISLY CHOICE," AND HE QUITE PROPERLY DECLINED TO
PLAY "RUSSIAN ROULETTE" BY APPEALING HIS CONVICTION.  ANTE, PP. 439
440. 

DOES THE COURT MEAN BY THESE COLORFUL PHRASES THAT IT WOULD BE
UNCONSTITUTIONAL FOR THE STATE TO IMPOSE A HEAVIER SENTENCE IN A SECOND
TRIAL FOR THE SAME OFFENSE?  APPARENTLY NOT, SINCE THE MAJORITY ASSURES
US THAT THERE MAY BE SOME CASES IN WHICH A RISK OF A HEAVIER SENTENCE
MUST BE RUN.  WHAT DISTINGUISHES THIS CASE, WE ARE TOLD, IS THAT THE
RISK OF THE DEATH SENTENCE ON A NEW TRIAL WAS SUBSTANTIAL IN VIEW OF
THE TRIAL JUDGE'S STATEMENT THAT NOIA'S PAST RECORD AND HIS INVOLVEMENT
IN THE CRIME ALMOST LED THE JUDGE TO DISREGARD THE JURY'S
RECOMMENDATION AGAINST A DEATH SENTENCE.    WHAT THE COURT SEEMS TO BE
SAYING IN THIS EXERCISE IN FINE DISTINCTIONS IS THAT NO WAIVER OF A
RIGHT CAN BE EFFECTIVE IF SOME ADVERSE CONSEQUENCE MIGHT REASONABLY BE
EXPECTED TO FOLLOW FROM EXERCISE OF THAT RIGHT.  UNDER THIS APPROACH,
OF COURSE, THERE COULD NEVER BE A BINDING WAIVER, SINCE ONLY AN
INCOMPETENT WOULD GIVE UP A RIGHT WITHOUT ANY GOOD REASON, AND AN
INCOMPETENT CANNOT MAKE AN INTELLIGENT WAIVER.  THE COURT WHOLLY
IGNORES THE QUESTION WHETHER THE CHOICE MADE BY THE DEFENDANT IS ONE
THAT THE STATE COULD CONSTITUTIONALLY REQUIRE.    LOOKED AT FROM ANY
ANGLE, THE CONCEPT OF WAIVER WHICH THE COURT HAS CREATED MUST BE FOUND
WANTING.   OF GRAVEST IMPORTANCE, IT CARRIES THIS COURT INTO A SPHERE
IN WHICH IT HAS NO PROPER PLACE IN THE CONTEXT OF THE FEDERAL SYSTEM. 
THE TRUE LIMITATIONS ON OUR CONSTITUTIONAL POWER ARE THOSE INHERENT IN
THE RULE REQUIRING THAT A JUDGMENT RESTING ON AN ADEQUATE STATE GROUND
MUST BE RESPECTED. 

                                  IV.

              ADEQUACY OF THE STATE GROUND HERE INVOLVED. 

IT IS THE ADEQUACY, OR FAIRNESS, OF THE STATE GROUND THAT SHOULD BE
THE CONTROLLING QUESTION IN THIS CASE.  (FN26)  THIS CONTROLLING
QUESTION THE COURT DOES NOT DISCUSS. 

NEW YORK ASSERTS THAT A CLAIM OF THE KIND INVOLVED HERE MUST BE
RAISED ON TIMELY APPEAL IF IT IS TO BE PRESERVED, AND CONTENDS THAT IN
PERMITTING AN APPEAL IT HAS PROVIDED A REASONABLE OPPORTUNITY FOR THE
CLAIM TO BE MADE.  THE COLLATERAL POST-CONVICTION WRIT OF CORAM NOBIS,
THE STATE HAS SAID, REMAINS A REMEDY ONLY FOR THE CALLING UP OF FACTS
UNKNOWN AT THE TIME OF THE JUDGMENT.  SEE PEOPLE V. NOIA, DECIDED SUB
NOM.  PEOPLE V. CAMINITO, 3 N.Y.2D 596, 601, 148 N.E.2D 139, 143.  IN
OTHER WORDS, THE STATE CLAIMS THAT IT MAY CONSTITUTIONALLY DETAIN A MAN
PURSUANT TO A JUDGMENT OF CONVICTION, REGARDLESS OF ANY ERROR THAT MAY
HAVE LED TO THAT CONVICTION, IF THE RELEVANT FACTS WERE REASONABLY
AVAILABLE AND AN APPEAL WAS NOT TAKEN. 

UNDER THE CIRCUMSTANCES HERE - PARTICULARLY THE FACT THAT NOIA WAS
REPRESENTED BY COUNSEL WHOSE COMPETENCE IS NOT CHALLENGED - IS THIS A
REASONABLE GROUND FOR BARRING COLLATERAL ASSERTION OF THE FEDERAL
CLAIM?  CERTAINLY THE STATE HAS A VITAL INTEREST IN REQUIRING THAT
APPEALS BE TAKEN ON THE BASIS OF FACTS KNOWN AT THE TIME, SINCE THE
FIRST ASSERTION OF A CLAIM MANY YEARS LATER MIGHT OTHERWISE REQUIRE
RELEASE LONG AFTER IT WAS FEASIBLE TO HOLD A NEW TRIAL.  AND ALTHOUGH
IN DANIELS V. ALLEN IT MIGHT HAVE BEEN ARGUED THAT THE STATE'S REFUSAL
TO ENTERTAIN AN APPEAL ACTUALLY RECEIVED ON TIME AMOUNTED TO AN EVASION
OF THE FEDERAL CLAIM, NO SUCH ARGUMENT CAN BE MADE HERE, SINCE NO
APPEAL WAS EVER SOUGHT. 

MOREOVER, WE SHOULD BE SLOW TO REJECT - AS AN INVALID BARRIER TO THE
RAISING OF A FEDERAL RIGHT - A STATE DETERMINATION THAT ONE FORUM
RATHER THAN ANOTHER MUST BE RESORTED TO FOR THE ASSERTION OF THAT
RIGHT.  A FAR MORE RIGID RESTRICTION OF FEDERAL FORUMS WAS UPHELD IN
YAKUS V. UNITED STATES, 321 U.S. 414.  IN THAT CASE, THE COURT
SUSTAINED A FEDERAL STATUTE PERMITTING AN ATTACK ON THE VALIDITY OF AN
ADMINISTRATIVE PRICE REGULATION TO BE MADE ONLY ON TIMELY REVIEW OF THE
ADMINISTRATIVE ORDER, AND PRECLUDING THE DEFENSE OF INVALIDITY IN A
LATER CRIMINAL PROSECUTION FOR VIOLATION OF THE REGULATION.  WHAT THE
COURT THERE SAID BEARS REPETITION HERE: 

"NO PROCEDURAL PRINCIPLE IS MORE FAMILIAR TO THIS COURT THAN THAT A
CONSTITUTIONAL RIGHT MAY BE FORFEITED IN CRIMINAL AS WELL AS CIVIL
CASES BY THE FAILURE TO MAKE TIMELY ASSERTION OF THE RIGHT BEFORE A
TRIBUNAL HAVING JURISDICTION TO DETERMINE IT."  321 U.S., AT 444. 

BUT IS THERE SOME SPECIAL CIRCUMSTANCE HERE THAT OPERATES TO
INVALIDATE THE NONFEDERAL GROUND?  CERTAINLY IT CANNOT BE THAT THE
CLAIM OF A COERCED CONFESSION IS OF SUCH A NATURE THAT A STATE IS
CONSTITUTIONALLY COMPELLED TO PERMIT ITS ASSERTION AT ANY TIME EVEN IF
IT COULD HAVE BEEN, BUT WAS NOT, RAISES ON APPEAL.  MANY FEDERAL
DECISIONS HAVE HELD THAT A FEDERAL PRISONER HELD PURSUANT TO A FEDERAL
CONVICTION MAY NOT ASSERT SUCH A CLAIM IN COLLATERAL PROCEEDINGS WHEN
IT WAS NOT, BUT COULD HAVE BEEN, ASSERTED ON APPEAL.  E.G., DAVIS V.
UNITED STATES, 214 F.2D 594, CERT. DENIED, 353 U.S. 960; SMITH V.
UNITED STATES, 88 U.S. APP. D.C. 80, 187 F.2D 192, CERT. DENIED, 341
U.S. 927; SEE HODGES V. UNITED STATES, 108 U.S. APP. D.C. 375, 282 F.2D
858, CERT. DISMISSED, 368 U.S. 139. 

IS IT THEN A BASIS FOR INVALIDATING THE NONFEDERAL GROUND THAT NOIA'S
TWO CODEFENDANTS ARE TODAY FREE FROM CUSTODY ON FACTS WHICH NOIA SAYS
ARE IDENTICAL TO THOSE IN THIS CASE?  DOES THE NONFEDERAL GROUND FALL
WHEN THE FEDERAL CLAIM APPEARS TO HAVE OBVIOUS MERIT?  THERE MAY BE
SOME QUESTION WHETHER THE FACTS IN NOIA'S CASE AND THOSE IN BONINO'S
AND CAMINITO'S ARE IDENTICAL, (FN27) BUT ASSUMING THAT THEY ARE, I
THINK IT EVIDENT THAT THE NONFEDERAL GROUND MUST STILL STAND. 

AGAIN, THERE IS HIGHLY RELEVANT PRECEDENT DEALING WITH FEDERAL
PRISONERS.  IN SUNAL V. LARGE, 332 U.S. 174, SUNAL AND KULICK HAD BEEN
PROSECUTED FOR VIOLATION OF THE SELECTIVE SERVICE ACT, AND BOTH HAD
SOUGHT TO RAISE A DEFENSE THE COURT HAD REFUSED TO CONSIDER.  BOTH WERE
CONVICTED AND SENTENCED TO IMPRISONMENT BUT TOOK NO APPEAL, QUITE
EVIDENTLY BECAUSE SUCH AN APPEAL WOULD HAVE BEEN TO NO AVAIL UNDER THE
EXISTING STATE OF THE LAW.  SUBSEQUENTLY, IN ANOTHER CASE, THIS COURT
HELD ON COMPARABLE FACTS THAT THE DEFENSE IN QUESTION MUST BE
PERMITTED.  ESTEP V. UNITED STATES, 327 U.S. 114.  SUNAL AND KULICK
THEN SOUGHT RELIEF ON HABEAS CORPUS, AND THIS RELIEF WAS DENIED.  THE
OPINION OF THE COURT OBSERVED THAT THERE HAD BEEN NO BARRIER TO THE
PERFECTION OF APPEALS BY THESE PRISONERS AND NO FACTS WHICH WERE NOT
THEN KNOWN.  THAT AN APPEAL MAY HAVE APPEARED FUTILE AT THE TIME
(INDEED, FAR MORE FUTILE THAN WAS THE CASE HERE) WAS HELD NOT A
SUFFICIENT BASIS FOR COLLATERAL RELIEF.  THE PRESENT CASE, I SUBMIT,
WOULD BE LESS TROUBLESOME THAN SUNAL EVEN HAD IT INVOLVED A FEDERAL
PRISONER. 

SURELY, THE STATE GROUND IS NOT RENDERED INADEQUATE BECAUSE ON A NEW
TRIAL FOR THE SAME OFFENSE, NOIA MIGHT HAVE RECEIVED THE DEATH
SENTENCE.  THE STATE IS WELL WITHIN CONSTITUTIONAL LIMITS IN PERMITTING
SUCH A SENTENCE TO BE IMPOSED.  OF PARTICULAR RELEVANCE HERE IS THE
DECISION IN LARSON V. UNITED STATES, 275 F.2D 673.  TWO CRIMINAL
DEFENDANTS HAD BEEN TRIED AND SENTENCED TO IMPRISONMENT BY A FEDERAL
COURT.  ONE DEFENDANT, JUELICH, HAD MOVED FOR A CONTINUANCE OR A CHANGE
OF VENUE, ON THE GROUND OF COMMUNITY PREJUDICE, AND HIS MOTION HAD BEEN
DENIED.  BOTH DEFENDANTS WERE CONVICTED; JUELICH APPEALED FROM HIS
CONVICTION; AND THE COURT OF APPEALS REVERSED, JUELICH V. UNITED
STATES, 214 F.2D 950, HOLDING THAT THE CONSTITUTIONAL REQUIREMENT OF A
FAIR TRIAL HAD BEEN VIOLATED BY THE REFUSAL TO GRANT A CHANGE OF VENUE
OR A CONTINUANCE.  LARSON, THE OTHER DEFENDANT, HAD CHOSEN NOT TO
APPEAL, APPARENTLY BECAUSE HE FEARED THAT THE DEATH SENTENCE MIGHT BE
IMPOSED IN A NEW TRIAL, BUT AFTER HIS CONDEFENDANT'S SUCCESS, HE SOUGHT
A COLLATERAL RELIEF UNDER SEC. 2255.  THAT RELIEF WAS DENIED BY THE
DISTRICT COURT, AND THE COURT OF APPEALS AFFIRMED, STATING: 

"WE DO NOT SAY  ...  THAT IN EVERY INSTANCE, BEFORE RESORT CAN BE HAD
TO SECTION 2255 THERE MUST BE AN APPEAL.  WE SAY ONLY THAT, IN THE
CIRCUMSTANCES OF THIS CASE, LARSON, TAKING A CALCULATED RISK, MADE A
FREE CHOICE NOT TO JEOPARDIZE HIS LIFE, AND HE IS BOUND BY THAT
DECISION  ...  . WHATEVER ERRORS THERE WERE IN HIS TRIAL WERE KNOWN TO
LARSON AND TO HIS COUNSEL - FOR THE SAME ERRORS FORMED THE BASIS FOR
JUELICH'S APPEAL.  MANIFEST JUSTICE TO AN ACCUSED PERSON REQUIRES ONLY
THAT HE HAVE AN OPPORTUNITY TO CORRECT ERRORS THAT MAY HAVE LED TO AN
UNFAIR TRIAL.  THE ORDERLY ADMINISTRATION OF JUSTICE REQUIRES THAT EVEN
A CRIMINAL CASE SOME DAY COME TO AN END."  275 F.2D, AT 679-680. 

THIS COURT DENIED CERTIORARI.  363 U.S. 849. 

DECISIONS SUCH AS SUNAL AND LARSON ARE REASONED EXPRESSIONS BY THE
FEDERAL JUDICIARY OF ITS VIEWS ON THE FAIR AND PROPER ADMINISTRATION OF
FEDERAL CRIMINAL JUSTICE.  WE CANNOT TURN AROUND AND TELL THE STATE OF
NEW YORK THAT IT IS CONSTITUTIONALLY PROHIBITED FROM BEING GOVERNED BY
THE SAME CONSIDERATIONS. 

I RECOGNIZE THAT NOIA'S PREDICAMENT MAY WELL BE THOUGHT ONE THAT
STRONGLY CALLS FOR CORRECTION.  BUT THE PROPER COURSE TO THAT END LIES
WITH THE NEW YORK GOVERNOR'S POWERS OF EXECUTIVE CLEMENCY, NOT WITH THE
FEDERAL COURTS.  (FN28)  SINCE NOIA IS DETAINED PURSUANT TO A STATE
JUDGMENT WHOSE VALIDITY RESTS ON AN ADEQUATE AND INDEPENDENT STATE
GROUND, THE JUDGMENT BELOW SHOULD BE REVERSED. 

FN1  FOR A BROAD RANGE OF VIEWS, SEE THE ANALYTICAL DISCUSSIONS OF
THE DEVELOPMENT OF FEDERAL HABEAS CORPUS JURISDICTION IN HART,
FOREWORD, 73 HARV. L. REV. 84; REITZ, FEDERAL HABEAS CORPUS: IMPACT OF
AN ABORTIVE STATE PROCEEDING, 74 HARV. L. REV. 1315; BRENNAN, FEDERAL
HABEAS CORPUS AND STATE PRISONERS:  AN EXERCISE IN FEDERALISM, 7 UTAH
L. REV. 423; AND BATOR, FINALITY IN CRIMINAL LAW AND FEDERAL HABEAS
CORPUS FOR STATE PRISONERS, 76 HARV. L. REV. 441. 

FN2  U.S. CONST., ART. I, SEC. 9, CL. 2. 

FN3  SECTION 14 OF THE JUDICIARY ACT OF 1789, C. 20, 1 STAT. 73, 81
82. 

FN4  THE STATUTORY DEVELOPMENT RELATING TO REVIEW OF CRIMINAL CASES
BY THE SUPREME COURT IS DISCUSSED IN BATOR, SUPRA, NOTE 1, AT 473, N.
75. 

FN5  SEE ALSO, E.G., EX PARTE JACKSON, 96 U.S. 727; EX PARTE
YARBROUGH, 110 U.S. 651; MINNESOTA V. BRUNDAGE, 180 U.S. 499. 

FN6  SEE ALSO, E.G., EX PARTE WILSON, 114 U.S. 417; IN RE SNOW, 120
U.S. 274; IN RE BONNER, 151 U.S. 242.  COMPARE EX PARTE BIGELOW, 113
U.S. 328. 

IN ADDITION, THERE WERE A FEW CASES DURING THIS PERIOD IN WHICH THE
COURT REJECTED CLAIMS MADE IN HABEAS CORPUS, APPARENTLY ON THEIR
MERITS, WITHOUT CLEARLY LIMITING ITSELF TO QUESTIONS OF
"JURISDICTION."  SEE IN RE CONVERSE, 137 U.S. 624; FELTS V. MURPHY, 201
U.S. 123.  SEE ALSO BATOR, SUPRA, NOTE 1, AT 484.  THESE CASES WERE
INFREQUENT, HOWEVER, AND MUST BE CONSIDERED AS EXCEPTIONS TO THE
GENERAL RULES HELD TO BE APPLICABLE IN THIS FORMATIVE PERIOD. 

FN7  THE REMARKS OF CONGRESSMAN LAWRENCE QUOTED BY THE MAJORITY,
ANTE, P. 417, WERE IN RESPONSE TO A SUGGESTION BY CONGRESSMAN LEBLOND
THAT THE BILL WOULD NOT COVER CERTAIN CIVILIANS IN MILITARY CUSTODY. 
CONG. GLOBE, 39TH CONG., 1ST SESS. 4151.  SEE ALSO ID., AT 4229. 

FN8  H.R. REP. NO. 730, 48TH CONG., 1ST SESS. 5 (1884). 

FN9  FRANK V. STATE, 141 GA. 243, 280-281, 80 S.E. 1016, 1032-1033. 

FN10  SEE 237 U.S., AT 343.  THE DISSENTING OPINION, 237 U.S., AT
345, 346, DID NOT TAKE ISSUE WITH THIS HOLDING, BUT RATHER FOCUSED ON
THE ALLEGATIONS OF MOB DOMINATION. 

FN11  HICKS V. STATE, 143 ARK. 158, 162, 220 S.W. 308, 310. 

FN12  COMPARE HART, SUPRA, NOTE 1, AT 105; REITZ, SUPRA, NOTE 1, AT
1328-1329; BATOR, SUPRA, NOTE 1, AT 488-491. 

FN13  IT HAS BEEN SUGGESTED THAT LANGUAGE IN SUCH CASES AS WHITE V.
RAGEN, 324 U.S. 760, 765, AND HOUSE V. MAYO, 324 U.S. 42, 48, SUPPORTS
THE RESULT REACHED TODAY BY INDICATING THAT FEDERAL HABEAS WILL LIE
WHEN AN ADEQUATE STATE GROUND BARS DIRECT REVIEW BY THIS COURT.  SEE
BRENNAN, SUPRA, NOTE 1, AT 431-432, N. 51; REITZ, SUPRA, NOTE 1, AT
1359-1360.  BUT THESE CASES DO NOT STAND FOR THIS PROPOSITION.  IN EACH
OF THEM THE STATE COURT APPEARED TO HAVE DENIED THAT THE PARTICULAR
POST-CONVICTION REMEDY SOUGHT WAS AVAILABLE TO REDRESS A CLAIM OF
FEDERAL RIGHT THAT COULD NOT HAVE BEEN ADEQUATELY ASSERTED IN THE
ORIGINAL TRIAL.  IN EACH OF THEM, IT REMAINED POSSIBLE THAT OTHER STATE
REMEDIES MIGHT BE OPEN, IN WHICH EVENT IT SEEMED CLEAR THAT THE
PARTICULAR DENIAL OF RELIEF RESTED ON AN ADEQUATE STATE GROUND.  BUT IF
IT WAS SUBSEQUENTLY DETERMINED - EITHER BY FURTHER ATTEMPTS TO OBTAIN
STATE RELIEF OR BY PROOF IN A FEDERAL DISTRICT COURT - THAT NO STATE
REMEDIES OF ANY KIND WERE EVER AVAILABLE IN THE STATE COURTS, THEN
FEDERAL HABEAS WOULD LIE.  FOR, "IT IS NOT SIMPLY A QUESTION OF STATE
PROCEDURE," AND THERE IS NO TRULY ADEQUATE STATE GROUND, "WHEN A STATE
COURT OF LAST RESORT CLOSES THE DOOR TO ANY CONSIDERATION OF A CLAIM OF
DENIAL OF A FEDERAL RIGHT."  YOUNG V. RAGEN, 337 U.S. 235, 238; CF.
WARD V. LOVE COUNTY, 253 U.S. 17; GENERAL OIL CO. V. CRAIN, 209 U.S.
211.  IN OTHER WORDS, THE PROPOSITION THAT CASES SUCH AS WHITE V. RAGEN
DO STAND FOR IS THAT THIS COURT WILL, AS A MATTER OF SOUND JUDICIAL
ADMINISTRATION, ACCEPT WHAT APPEARS ON ITS FACE TO BE AN ADEQUATE STATE
GROUND BECAUSE THE FEDERAL DISTRICT COURT REMAINS OPEN FOR MORE
INTENSIVE CONSIDERATION OF THE PETITIONER'S CLAIM OF INADEQUACY.  CF.
28 U.S.C. SEC. 2241(B). 

FN14  A THIRD CASE, SPELLER V. ALLEN, WAS ALSO REPORTED AT THE SAME
TIME BUT WAS NOT SIGNIFICANTLY DIFFERENT, FOR PRESENT PURPOSES, FROM
BROWN V. ALLEN. 

FN15  BROWN V. MISSISSIPPI, 297 U.S. 278, CITED BY THE COURT, ANTE,
P. 414, AROSE ON DIRECT REVIEW OF A STATE CONVICTION, AND DID NOT
SUGGEST THAT A CLAIM OF A COERCED CONFESSION, ONCE DETERMINED BY THE
STATE COURTS, COULD BE REDETERMINED ON FEDERAL HABEAS. 

FN16  SEE 344 U.S., AT 486.  SEE ALSO MR. JUSTICE FRANKFURTER'S
SEPARATE OPINION, 344 U.S., AT 488, 503. 

FN17 "A FAILURE TO USE A STATE'S AVAILABLE REMEDY, IN THE ABSENCE OF
SOME INTERFERENCE OR INCAPACITY  ...  BARS FEDERAL HABEAS CORPUS.  THE
STATUTE REQUIRES THAT THE APPLICANT EXHAUST AVAILABLE STATE REMEDIES. 
TO SHOW THAT THE TIME HAS PASSED FOR APPEAL IS NOT ENOUGH TO EMPOWER
THE FEDERAL DISTRICT COURT TO ISSUE THE WRIT."  344 U.S., AT 487. 

FN18  "WHERE THE STATE ACTION WAS BASED ON AN ADEQUATE STATE GROUND,
NO FURTHER EXAMINATION IS REQUIRED, UNLESS NO STATE REMEDY FOR THE
DEPRIVATION OF FEDERAL CONSTITUTIONAL RIGHTS EVER EXISTED."   344 U.S.,
AT 458.    FN19  ANALYSIS OF THE PROBLEM IN TERMS OF EXHAUSTION OF
REMEDIES NO LONGER AVAILABLE HAS BEEN SEVERELY CRITICIZED.  HART,
SUPRA, NOTE 1, AT 112-114.  THIS "EXHAUSTION" APPROACH IS TODAY QUITE
PROPERLY INTERRED.  ANTE, PP. 434-435. 

FN20  SEE MICHEL V. LOUISIANA, 350 U.S. 91. 

FN21  LAWRENCE V. STATE TAX COMM'N, 286 U.S. 276, 282.  SEE, E.G.,
ROGERS V. ALABAMA, 192 U.S. 226; NAACP V. ALABAMA, 357 U.S. 449.  SEE
ALSO HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM,
501. 

FN22 SEE DAVIS V. WECHSLER, 263 U.S. 22; NEW YORK CENTRAL R. CO. V.
NEW YORK & PA.  CO., 271 U.S. 124; NAACP V. ALABAMA, SUPRA.  SEE ALSO
THE DISCUSSION IN THE DISSENTING OPINION IN WILLIAMS V. GEORGIA, 349
U.S. 375, 393, 399. 

FN23  IN TYLER V. MAGWIRE, 17 WALL.  253, 293, THE COURT ISSUED A
WRIT OF POSSESSION AND ORDERED ITS MARSHAL TO EXECUTE IT AGAINST THE
STATE DEFENDANT IN POSSESSION. 

FN24  THE SUCCESSIVE STATUTES ARE COLLECTED AND SET OUT IN FULL IN
ROBERTSON AND KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE UNITED
STATES (WOLFSON AND KURLAND ED. 1951), APPENDIX A. 

FN25  28 U.S.C. SEC. 2106 AUTHORIZES THE COURT TO VACATE, AS WELL AS
REVERSE, AFFIRM OR MODIFY, ANY JUDGMENT LAWFULLY BROUGHT BEFORE IT FOR
REVIEW.  28 U.S.C. SEC. 1651(A) PROVIDES THAT THE COURT "MAY ISSUE ALL
WRITS NECESSARY OR APPROPRIATE" IN AID OF ITS JURISDICTION.  SEE ALSO
28 U.S.C. SEC. 2241(A), GIVING THIS COURT SPECIFIC AUTHORITY TO ISSUE
WRITS OF HABEAS CORPUS.  SUCH WRITS ARE TO BE EXECUTED, UNDER 28 U.S.C.
SEC.  672, BY THE MARSHAL OF THIS COURT, WHO IS AUTHORIZED BY 28 U.S.C.
SEC. 549, WHEN ACTING WITHIN A STATE, TO "EXERCISE THE SAME POWERS
WHICH A SHERIFF OF SUCH STATE MAY EXERCISE IN EXECUTING THE LAWS
THEREOF."  THE POWER TO ENTER JUDGMENT AND, WHEN NECESSARY, TO ENFORCE
IT BY APPROPRIATE PROCESS, HAS BEEN SAID TO BE INHERENT IN THE COURT'S
APPELLATE JURISDICTION.  STANLEY V. SCHWALBY, 162 U.S. 255, 279-282. 
SEE ALSO HART AND WECHSLER, SUPRA, NOTE 21, AT 420-421. 

FN26  IN VIEW OF THE CONCESSION BY THE STATE, I ASSUME IN THIS
DISCUSSION THAT NOIA'S CONFESSION WAS COERCED.  A CONFESSION, OF
COURSE, MAY BE COERCED AND YET STILL BE A WHOLLY RELIABLE ADMISSION OF
GUILT.  SEE ROGERS V. RICHMOND, 365 U.S. 534.  WHETHER OR NOT NOIA WAS
GUILTY OF THE CRIME OF FELONY MURDER, AND WHETHER THE EVIDENCE OF HIS
GUILT WAS ACCURATE AND SUBSTANTIAL, ARE MATTERS IRRELEVANT TO THE
QUESTION OF COERCION AND ALSO IRRELEVANT HERE. 

FN27  SEE PEOPLE V. NOIA, 4 APP. DIV. 2D 698, 163 N.Y.S.2D 796. 

FN28  AT THE ORAL ARGUMENT THE STATE DISTRICT ATTORNEY ADVISED US
THAT HIS OFFICE WOULD SUPPORT AN APPLICATION FOR CLEMENCY ONCE THE CASE
HAD BEEN DISPOSED OF IN THIS COURT. 
..END :








LANE V. BROWN 372 U.S. 477 


NO. 283.  ARGUED JANUARY 16-17, 1963.  - DECIDED MARCH 18, 1963.  - 302
F.2D 537, JUDGMENT VACATED AND CAUSE REMANDED. 


IN AN INDIANA STATE COURT, RESPONDENT WAS CONVICTED OF MURDER AND
SENTENCED TO DEATH.  AFTER AN UNSUCCESSFUL APPEAL, HE FILED IN THE
TRIAL COURT A PETITION FOR WRIT OF ERROR CORAM NOBIS.  AFTER A HEARING,
AT WHICH RESPONDENT WAS REPRESENTED BY THE PUBLIC DEFENDER, THAT COURT
DENIED RELIEF.  RESPONDENT REQUESTED THE PUBLIC DEFENDER TO REPRESENT
HIM IN PERFECTING AN APPEAL TO THE INDIANA SUPREME COURT; BUT THE
PUBLIC DEFENDER REFUSED, BECAUSE HE BELIEVED THAT AN APPEAL WOULD BE
UNSUCCESSFUL.  RESPONDENT NEXT APPLIED TO THE TRIAL COURT FOR A
TRANSCRIPT OF THE CORAM NOBIS HEARING AND THE APPOINTMENT OF COUNSEL TO
PERFECT AN APPEAL, BUT THIS WAS DENIED.  THE SUPREME COURT OF INDIANA
REFUSED TO ORDER THE TRIAL COURT TO GRANT PETITIONER'S REQUEST FOR A
TRANSCRIPT AND APPOINTMENT OF COUNSEL, ON THE GROUND THAT, UNDER
INDIANA LAW, AN APPEAL FROM DENIAL OF A WRIT OF ERROR CORAM NOBIS CAN
BE PERFECTED ONLY BY FILING IN THE STATE SUPREME COURT A TRANSCRIPT OF
THE HEARING AND SUCH TRANSCRIPT CAN BE OBTAINED FOR AN INDIGENT ONLY BY
THE PUBLIC DEFENDER.  RESPONDENT APPLIED TO A FEDERAL DISTRICT COURT
FOR A WRIT OF HABEAS CORPUS.  HELD:  INDIANA HAS DEPRIVED RESPONDENT OF
A RIGHT SECURED BY THE FOURTEENTH AMENDMENT BY REFUSING HIM APPELLATE
REVIEW OF THE DENIAL OF WRIT OF ERROR CORAM NOBIS SOLELY BECAUSE OF HIS
POVERTY.  PP. 477-485. 

LANE, WARDEN V. BROWN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, GEORGE ROBERT BROWN, IS IN AN INDIANA PRISON UNDER
SENTENCE OF DEATH.  HE IS AN INDIGENT.  IN A FEDERAL HABEAS CORPUS
PROCEEDING THE DISTRICT COURT HELD THAT INDIANA HAS DEPRIVED BROWN OF A
RIGHT SECURED BY THE FOURTEENTH AMENDMENT BY REFUSING HIM APPELLATE
REVIEW OF THE DENIAL OF A WRIT OF ERROR CORAM NOBIS SOLELY BECAUSE OF
HIS POVERTY.  196 F. SUPP. 484.  THE COURT OF APPEALS AFFIRMED.  302
F.2D 537.  WE AGREE THAT THE INDIANA PROCEDURE AT ISSUE IN THIS CASE
FALLS SHORT OF THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT OF THE
UNITED STATES CONSTITUTION. 

IN THE ADMINISTRATION OF ITS CRIMINAL LAW, INDIANA SEEMS TO HAVE LONG
PURSUED A CONSPICUOUSLY ENLIGHTENED POLICY IN THE QUEST FOR EQUAL
JUSTICE TO THE DESTITUTE, AND IT IS NOT WITHOUT IRONY THAT THE
CONSTITUTIONAL PROBLEM IN THIS CASE STEMS FROM LEGISLATION EVIDENTLY
ENACTED TO ENLARGE THAT STATE'S EXISTING SYSTEM OF AID TO THE
INDIGENT.  FOR MORE THAN A HUNDRED YEARS THE INDIANA CONSTITUTION HAS
GUARANTEED THE ASSISTANCE OF COUNSEL TO EVERY DEFENDANT IN A CRIMINAL
TRIAL.  (FN1)  THIS RIGHT HAS BEEN EXTENDED TO INCLUDE THE RIGHT OF AN
INDIGENT TO CONSULT WITH A LAWYER PRIOR TO ARRAIGNMENT, (FN2) AS WELL
AS THE RIGHT TO BE REPRESENTED BY COUNSEL ON APPEAL FROM A CRIMINAL
CONVICTION.  (FN3)  IT HAS ALSO BEEN ESTABLISHED FOR MORE THAN A
CENTURY IN INDIANA THAT A POOR PERSON APPEALING A CRIMINAL CONVICTION
MAY SECURE A TRANSCRIPT OF THE TRIAL RECORD WITHOUT COST.  (FN4)  IN
1945 THE INDIANA LEGISLATURE ENACTED THE SOCALLED PUBLIC DEFENDER ACT,
A LAW TO DEAL WITH THE PROBLEM OF PROVIDING LEGAL ASSISTANCE TO
INDIGENT PRISONERS IN POSTCONVICTION PROCEEDINGS.  IT IS THE OPERATION
OF THE PROVISIONS OF THIS LAW, AS INTERPRETED BY THE SUPREME COURT OF
INDIANA, WHICH WE FIND CONSTITUTIONALLY DEFICIENT IN THE PRESENT CASE. 

THE 1945 LEGISLATION CREATED THE OFFICE OF PUBLIC DEFENDER, TO BE
APPOINTED BY THE STATE SUPREME COURT, (FN5) AND, AS LATER AMENDED,
AUTHORIZED HIM TO EMPLOY "SUCH DEPUTIES, STENOGRAPHERS OR OTHER
CLERICAL HELP AS MAY BE REQUIRED TO DISCHARGE HIS DUTIES  ...  ." 
(FN6)  THE PROVISIONS OF THE LAW WHICH ARE AT THE ROOT OF THE PROBLEM
IN THE CASE BEFORE US ARE THOSE WHICH DEFINE THE PUBLIC DEFENDER'S
BASIC DUTIES AND WHICH AUTHORIZE HIM TO ORDER HEARING TRANSCRIPTS, OR
THEIR EQUIVALENT, AT PUBLIC EXPENSE: 

"IT SHALL BE THE DUTY OF THE PUBLIC DEFENDER TO REPRESENT ANY PERSON
IN ANY PENAL INSTITUTION OF THIS STATE WHO IS WITHOUT SUFFICIENT
PROPERTY OR FUNDS TO EMPLOY HIS OWN COUNSEL, IN ANY MATTER IN WHICH
SUCH PERSON MAY ASSERT HE IS UNLAWFULLY OR ILLEGALLY IMPRISONED, AFTER
HIS TIME FOR APPEAL SHALL HAVE EXPIRED."  (FN7) 

"THE PUBLIC DEFENDER MAY ORDER ON BEHALF OF ANY PRISONER HE
REPRESENTS A TRANSCRIPT OF ANY COURT PROCEEDING, INCLUDING EVIDENCE
PRESENTED, HAD AGAINST ANY PRISONER, AND DEPOSITIONS, IF NECESSARY, AT
THE EXPENSE OF THE STATE, BUT THE PUBLIC DEFENDER SHALL HAVE AUTHORITY
TO STIPULATE FACTS CONTAINED IN THE RECORD OF ANY COURT, OR THE
SUBSTANCE OF TESTIMONY PRESENTED OR EVIDENCE HEARD INVOLVING ANY ISSUE
TO BE PRESENTED ON BEHALF OF ANY PRISONER, WITHOUT THE SAME BEING FULLY
TRANSCRIBED."  (FN8) 

THE RULES OF THE INDIANA SUPREME COURT EXPRESSLY PERMIT AN APPEAL
FROM THE DENIAL OF A WRIT OF ERROR CORAM NOBIS, BUT ALSO REQUIRE THAT A
TRANSCRIPT BE FILED IN ORDER TO CONFER JURISDICTION UPON THE COURT TO
HEAR SUCH AN APPEAL.  (FN9)  THE INDIANA COURT HAS HELD THAT UNDER THE
ABOVE-QUOTED PROVISIONS OF THE PUBLIC DEFENDER ACT, ONLY THE PUBLIC
DEFENDER CAN PROCURE A TRANSCRIPT OF A CORAM NOBIS HEARING FOR AN
INDIGENT; AN INDIGENT CANNOT PROCURE A TRANSCRIPT FOR HIMSELF AND
APPEAL PRO SE, NOR CAN HE SECURE THE APPOINTMENT OF ANOTHER LAWYER TO
GET THE TRANSCRIPT AND PROSECUTE THE APPEAL.  STATE EX REL. CASEY V.
MURRAY, 231 IND. 74, 106 N.E.2D 911; JACKSON V. REEVES, 238 IND. 708,
153 N.E.2D 604; WILLOUGHBY V. STATE, 242 IND. 183, 177 N.E.2D 465.  THE
UPSHOT IS THAT A PERSON WITH SUFFICIENT FUNDS CAN APPEAL AS OF RIGHT TO
THE SUPREME COURT OF INDIANA FROM THE DENIAL OF A WRIT OF ERROR CORAM
NOBIS, BUT AN INDIGENT CAN, AT THE WILL OF THE PUBLIC DEFENDER, BE
ENTIRELY CUT OFF FROM ANY APPEAL AT ALL. 

THE IMPACT OF THIS SYSTEM IS FULLY ILLUSTRATED BY THE HISTORY OF THE
PRESENT CASE.  BROWN WAS CONVICTED OF MURDER IN AN INDIANA TRIAL COURT
AND SENTENCED TO DEATH.  THE CONVICTION WAS AFFIRMED ON APPEAL, 239
IND. 184, 154 N.E.2D 720, AND THIS COURT DENIED A PETITION FOR A WRIT
OF CERTIORARI.  361 U.S. 936.  THEREAFTER, BROWN FILED IN THE FEDERAL
DISTRICT COURT AN APPLICATION FOR HABEAS CORPUS WHICH WAS DISMISSED
BECAUSE OF FAILURE TO EXHAUST AVAILABLE STATE REMEDIES.  BROWN THEN
FILED A PETITION FOR A WRIT OF ERROR CORAM NOBIS IN THE STATE TRIAL
COURT.  AFTER A HEARING AT WHICH BROWN WAS REPRESENTED BY THE PUBLIC
DEFENDER, THE COURT DENIED RELIEF.  BROWN REQUESTED THE PUBLIC DEFENDER
TO REPRESENT HIM IN PERFECTING AN APPEAL TO THE INDIANA SUPREME COURT. 
THIS REQUEST WAS REFUSED BECAUSE OF THE PUBLIC DEFENDER'S STATED BELIEF
THAT AN APPEAL WOULD BE UNSUCCESSFUL.  (FN10)  BROWN NEXT APPLIED TO
THE STATE TRIAL COURT FOR A TRANSCRIPT OF THE CORAM NOBIS HEARING AND
THE APPOINTMENT OF COUNSEL TO PERFECT AN APPEAL.  THIS APPLICATION WAS
DENIED.  THE SUPREME COURT OF INDIANA REFUSED TO ORDER THE TRIAL COURT
TO GRANT THE PETITIONER'S REQUEST FOR A TRANSCRIPT AND APPOINTMENT OF
COUNSEL, STATING: 

"UNDER THE CIRCUMSTANCES PRESENTED, THE PUBLIC DEFENDER WAS UNDER NO
DUTY TO REQUEST A TRANSCRIPT OF THE PROCEEDINGS IN ERROR CORAM NOBIS
AND, IN THE ABSENCE OF A REQUEST FROM SAID OFFICE, THE TRIAL COURT WAS
UNDER NO DUTY TO PROVIDE A CERTIFIED COPY OF SAID PROCEEDINGS AT PUBLIC
EXPENSE."  BROWN V. INDIANA, 241 IND. 298, 302, 171 N.E.2D 825, 827. 

BROWN AGAIN SOUGHT A WRIT OF CERTIORARI IN THIS COURT, AND HIS
PETITION WAS AGAIN DENIED, "WITHOUT PREJUDICE TO AN APPLICATION FOR A
WRIT OF HABEAS CORPUS IN THE APPROPRIATE UNITED STATES DISTRICT COURT
...  ."  366 U.S. 954. 

BROWN FINALLY INSTITUTED IN THE FEDERAL DISTRICT COURT THE HABEAS
CORPUS PROCEEDINGS WE NOW REVIEW.  HIS PETITION ALLEGED, IN ADDITION TO
FOUR SUBSTANTIVE GROUNDS FOR RELIEF, (FN11) "THAT RELATOR HAS BEEN
DENIED EQUAL PROTECTION OF THE LAW IN THAT HE WAS EFFECTIVELY DENIED AN
APPEAL FROM THE ORDER OF THE LAKE COUNTY, INDIANA CRIMINAL COURT,
DENYING HIS PETITION FOR WRIT OF ERROR CORAM NOBIS BECAUSE OF HIS
POVERTY AND INABILITY TO SECURE A TRANSCRIPT, WHICH RIGHT OF APPEAL IS
AVAILABLE TO ALL DEFENDENTS IN INDIANA WHO CAN AFFORD THE EXPENSE OF A
TRANSCRIPT."  THE COURT, DIRECTING ITS ATTENTION ONLY TO THIS LAST
ISSUE, HELD "THAT THE ACTIONS OF THE STATE OF INDIANA HAVE DENIED
PETITIONER EQUAL PROTECTION OF THE LAWS," AND ORDERED THAT BROWN "BE
GIVEN A FULL, APPELLATE REVIEW OF HIS CORAM NOBIS DENIAL" WITHIN 90
DAYS OR SUCH ADDITIONAL TIME AS THE COURT MIGHT THEREAFTER DETERMINE. 
196 F. SUPP., AT 488.  UPON THE FAILURE OF INDIANA TO PROVIDE SUCH A
REVIEW, THE DISTRICT COURT ORDERED BROWN'S DISCHARGE FROM CUSTODY, BUT
GRANTED A STAY PENDING APPELLATE REVIEW.  THE COURT OF APPEALS AFFIRMED
THE DISTRICT COURT'S JUDGMENT, DIRECTING, HOWEVER, THAT BROWN CONTINUE
TO BE HELD IN CUSTODY PENDING FINAL DISPOSITION OF THE CASE BY THIS
COURT.  302 F.2D, AT 540. 

BOTH THE DISTRICT COURT AND THE COURT OF APPEALS WERE OF THE OPINION
THAT THE ISSUE IN THE PRESENT CASE IS CONTROLLED BY RECENT DECISIONS OF
THIS COURT WHICH HAVE HELD CONSTITUTIONALLY INVALID PROCEDURES OF OTHER
STATES FOUND SUBSTANTIALLY TO DENY INDIGENT DEFENDANTS THE BENEFITS OF
AN EXISTING SYSTEM OF APPELLATE REVIEW.  WE ARE IN COMPLETE AGREEMENT. 

IN GRIFFIN V. ILLINOIS, 351 U.S. 12, THE COURT HELD THAT A STATE WITH
AN APPELLATE SYSTEM WHICH MADE AVAILABLE TRIAL TRANSCRIPTS TO THOSE WHO
COULD AFFORD THEM WAS CONSTITUTIONALLY REQUIRED TO PROVIDE "MEANS OF
AFFORDING ADEQUATE AND EFFECTIVE APPELLATE REVIEW TO INDIGENT
DEFENDENTS."  ID., AT 20.  "DESTITUTE DEFENDANTS," THE COURT HELD,
"MUST BE AFFORDED AS ADEQUATE APPELLATE REVIEW AS DEFENDANTS WHO HAVE
MONEY ENOUGH TO BUY TRANSCRIPTS."  ID., AT 19.  IN BURNS V. OHIO, 360
U.S. 252, INVOLVING A $20 FEE FOR FILING A MOTION FOR LEAVE TO APPEAL A
FELONY CONVICTION TO THE SUPREME COURT OF OHIO, THIS COURT REAFFIRMED
THE GRIFFIN DOCTRINE, SAYING THAT "ONCE THE STATE CHOOSES TO ESTABLISH
APPELLATE REVIEW IN CRIMINAL CASES, IT MAY NOT FORECLOSE INDIGENTS FROM
ACCESS TO ANY PHASE OF THAT PROCEDURE BECAUSE OF THEIR POVERTY  ...  .
THIS PRINCIPLE IS NO LESS APPLICABLE WHERE THE STATE HAS AFFORDED AN
INDIGENT DEFENDANT ACCESS TO THE FIRST PHASE OF ITS APPELLATE PROCEDURE
BUT HAS EFFECTIVELY FORECLOSED ACCESS TO THE SECOND PHASE OF THAT
PROCEDURE SOLELY BECAUSE OF HIS INDIGENCY."  ID., AT 257.  IN SMITH V.
BENNETT, 365 U.S. 708, THE COURT MADE CLEAR THAT THESE PRINCIPLES WERE
NOT TO BE LIMITED TO DIRECT APPEALS FROM CRIMINAL CONVICTIONS, BUT
EXTENDED ALIKE TO STATE POSTCONVICTION PROCEEDINGS.  "RESPECTING THE
STATE'S GRANT OF A RIGHT TO TEST THEIR DETENTION," THE COURT SAID, "THE
FOURTEENTH AMENDMENT WEIGHS THE INTERESTS OF RICH AND POOR CRIMINALS IN
EQUAL SCALE, AND ITS HAND EXTENDS AS FAR TO EACH."  ID., AT 714.  IN
ESKRIDGE V. WASHINGTON PRISON BOARD, 357 U.S. 214, THE COURT HELD
INVALID A PROVISION OF WASHINGTON'S CRIMINAL APPELLATE SYSTEM WHICH
CONFERRED UPON THE TRIAL JUDGE THE POWER TO WITHHOLD A TRIAL TRANSCRIPT
FROM AN INDIGENT UPON THE FINDING THAT "JUSTICE WOULD NOT BE PROMOTED
...  IN THAT DEFENDANT HAS BEEN ACCORDED A FAIR AND IMPARTIAL TRIAL,
AND IN THE COURT'S OPINION NO GRAVE OR PREJUDICIAL ERRORS OCCURRED
THEREIN."  ID., AT 215.  THERE IT WAS SAID THAT "THE CONCLUSION OF THE
TRIAL JUDGE THAT THERE WAS NO REVERSIBLE ERROR IN THE TRIAL CANNOT BE
AN ADEQUATE SUBSTITUTE FOR THE RIGHT TO FULL APPELLATE REVIEW AVAILABLE
TO ALL DEFENDANTS IN WASHINGTON WHO CAN AFFORD THE EXPENSE OF A
TRANSCRIPT."  ID., AT 216. 

THE PRESENT CASE FALLS CLEARLY WITHIN THE AREA STAKED OUT BY THE
COURT'S DECISIONS IN GRIFFIN, BURNS, SMITH, AND ESKRIDGE.  TO BE SURE,
THIS CASE DOES NOT INVOLVE, AS DID GRIFFIN, A DIRECT APPEAL FROM A
CRIMINAL CONVICTION, BUT SMITH MAKES CLEAR THAT THE GRIFFIN PRINCIPLE
ALSO APPLIES TO STATE COLLATERAL PROCEEDINGS, AND BURNS LEAVES NO DOUBT
THAT THE PRINCIPLE APPLIES EVEN THOUGH THE STATE HAS ALREADY PROVIDED
ONE REVIEW ON THE MERITS. 

IN ESKRIDGE THE COURT HELD CONSTITUTIONALLY INVALID A PROVISION WHICH
PERMITTED A TRIAL JUDGE TO PREVENT AN INDIGENT FROM TAKING AN EFFECTIVE
APPEAL.  THE PROVISION BEFORE US CONFERS UPON A STATE OFFICER OUTSIDE
THE JUDICIAL SYSTEM POWER TO TAKE FROM AN INDIGENT ALL HOPE OF ANY
APPEAL AT ALL.  SUCH A PROCEDURE, BASED ON INDIGENCY ALONE, DOES NOT
MEET CONSTITUTIONAL STANDARDS.  (FN12)  WE HAVE NO DOUBT THAT INDIANA,
WITH ITS HISTORIC CONCERN FOR EQUAL JUSTICE UNDER LAW, WILL FIND NO
PRACTICAL DIFFICULTY IN CORRECTING THE CONSTITUTIONAL DEFICIENCY WHICH
THIS CASE EXPOSES. 

THE JUDGMENTS OF THE COURT OF APPEALS AND OF THE DISTRICT COURT ARE
VACATED AND THE CASE REMANDED TO THE LATTER, SO THAT APPROPRIATE ORDERS
MAY BE ENTERED ORDERING BROWN'S DISCHARGE FROM CUSTODY, UNLESS WITHIN A
REASONABLE TIME THE STATE OF INDIANA PROVIDES HIM AN APPEAL ON THE
MERITS TO THE SUPREME COURT OF INDIANA FROM THE DENIAL OF THE WRIT OF
ERROR CORAM NOBIS.  IT IS SO ORDERED. 

FN1  IND. CONST., ART. 1, SEC. 13 (1851).  IN 1854 THE SUPREME COURT
OF INDIANA SAID: "IT IS NOT TO BE THOUGHT OF, IN A CIVILIZED COMMUNITY,
FOR A MOMENT, THAT ANY CITIZEN PUT IN JEOPARDY OF LIFE OR LIBERTY,
SHOULD BE DEBARRED OF COUNSEL BECAUSE HE WAS TOO POOR TO EMPLOY SUCH
AID.  NO COURT COULD BE RESPECTED, OR RESPECT ITSELF, TO SIT AND HEAR
SUCH A TRIAL."  WEBB V. BAIRD, 6 IND. 13, 18.   (QUOTED IN THE
DISSENTING OPINION IN BETTS V. BRADY, 316 U.S. 455, AT 476-477.) 

FN2  BATCHELOR V. STATE, 189 IND. 69, 125 N.E. 773 (1920). 

FN3  STATE V. HILGEMANN, 218 IND. 572, 34 N.E.2D 129 (1941); STATE EX
REL. GRECCO V. ALLEN CIRCUIT COURT, 238 IND. 571, 575, 153 N.E.2D 914,
916 (1958).  BUT SEE STATE EX REL. MACON V. ORANGE CIRCUIT COURT, 243
IND. 429, 185 N.E.2D 619. 

FN4  FALKENBURGH V. JONES, 5 IND. 296 (1854); STATE EX REL. MORRIS V.
WALLACE, 41 IND. 445 (1872).   SINCE 1893, THE RIGHT TO A TRANSCRIPT
HAS BEEN CONFERRED BY STATUTE.  BURNS IND. ANN. STAT., 1946, SEC. 4
3511. 

FN5  "THERE IS HEREBY CREATED THE OFFICE OF PUBLIC DEFENDER.  THE
PUBLIC DEFENDER SHALL BE APPOINTED BY THE SUPREME COURT OF THE STATE OF
INDIANA TO SERVE AT THE PLEASURE OF SAID COURT, FOR A TERM OF FOUR (4)
YEARS.  HE SHALL BE A RESIDENT OF THE STATE OF INDIANA, AND A
PRACTICING LAWYER OF THIS STATE FOR AT LEAST THREE (3) YEARS.  THE
SUPREME COURT IS AUTHORIZED TO GIVE SUCH TESTS AS IT MAY DEEM PROPER TO
DETERMINE THE FITNESS OF ANY APPLICANT FOR APPOINTMENT."  INDIANA ACTS
1945, C. 38, SEC. 1, BURNS IND. ANN.  STAT., 1956, SEC. 13-1401. 

FN6  "THE PUBLIC DEFENDER SHALL BE PAID AN ANNUAL SALARY TO BE FIXED
BY THE SUPREME COURT OF THIS STATE.  HE MAY, WITH THE CONSENT OF SAID
COURT, APPOINT OR EMPLOY SUCH DEPUTIES, STENOGRAPHERS OR OTHER CLERICAL
HELP AS MAY BE REQUIRED TO DISCHARGE HIS DUTIES AT COMPENSATION TO BE
FIXED BY THE COURT.  HE SHALL BE PROVIDED WITH AN OFFICE AT A PLACE TO
BE LOCATED AND DESIGNATED BY THE SUPREME COURT, AND HE SHALL BE PAID
HIS ACTUAL NECESSARY AND REASONABLE TRAVELING EXPENSES, INCLUDING COST
OF FOOD AND LODGING WHEN AWAY FROM THE MUNICIPALITY IN WHICH HIS OFFICE
IS LOCATED ON BUSINESS OF THE OFFICE OF THE PUBLIC DEFENDER, AND HE
SHALL BE PROVIDED WITH OFFICE FURNITURE, FIXTURES AND EQUIPMENT, BOOKS,
STATIONERY, PRINTING SERVICES, POSTAGE AND SUPPLIES."  INDIANA ACTS
1945, C. 38, SEC. 4, AS AMENDED, BURNS IND. ANN. STAT., 1956, SEC. 13
1404.    FN7  INDIANA ACTS 1945, C. 38, SEC. 2, BURNS IND. ANN. STAT.,
1956, SEC. 13-1402.    FN8  INDIANA ACTS 1945, C. 38, SEC. 5, BURNS
IND. ANN. STAT., 1956, SEC. 13-1405. 

FN9  "RULE 2-40 OF THIS COURT, 1958 EDITION, PROVIDES, IN RELEVANT
PART: 

"'AN APPEAL MAY BE TAKEN TO THE SUPREME COURT FROM A JUDGMENT
GRANTING OR DENYING A PETITION FOR A WRIT OF ERROR CORAM NOBIS.  THE
SUFFICIENCY OF THE PLEADINGS AND OF THE EVIDENCE TO ENTITLE THE
PETITIONER TO A VACATION OF THE JUDGMENT WILL BE CONSIDERED UPON AN
ASSIGNMENT OF ERROR THAT THE FINDING IS CONTRARY TO LAW.  THE
TRANSCRIPT OF SO MUCH OF THE RECORD AS IS NECESSARY TO PRESENT ALL
QUESTIONS RAISED BY APPELLANT'S PROPOSITIONS SHALL BE FILED WITH THE
CLERK OF THE SUPREME COURT WITHIN NINETY (90) DAYS AFTER THE DATE OF
THE DECISION.  THE PROVISIONS OF THE RULES OF THIS COURT APPLICABLE TO
APPEALS FROM FINAL JUDGMENTS SHALL GOVERN AS TO THE FORM AND TIME OF
FILING BRIEFS.'"   MCCRARY V. STATE, 241 IND. 518, 533-534, 173 N.E.2D
300, 307. 

"RULE 2-6 OF THIS COURT, 1958 EDITION, PROVIDES, IN RELEVANT PART: 

"'THERE SHALL BE ATTACHED TO THE FRONT OF THE TRANSCRIPT, IMMEDIATELY
FOLLOWING THE INDEX, A SPECIFIC ASSIGNMENT OF THE ERRORS RELIED UPON BY
THE APPELLANT IN WHICH EACH SPECIFICATION OF ERROR SHALL BE COMPLETE
AND SEPARATELY NUMBERED.'"  241 IND., AT 533, 173 N.E.2D, AT 307. 

FN10  "AFTER A CAREFUL REVIEW OF YOUR HEARING HAD ON JUNE 1 ON YOUR
PETITION FOR WRIT OF ERROR CORAM NOBIS IN THE CRIMINAL COURT OF LAKE
COUNTY, WILL ADVISE THAT I AM UNABLE TO FIND ANY ERROR OR ERRORS THAT
WOULD HAVE ANY MERIT TO ASSIGN UPON AN APPEAL; THEREFORE, I AM HEREBY
INFORMING YOU THAT MY OFFICE WILL NOT APPEAL THE JUDGMENT DENYING YOUR
PETITION FOR WRIT OF ERROR CORAM NOBIS." 

FN11  "(1)  INADEQUATE REPRESENTATION BY COURT-APPOINTED COUNSEL AT
HIS TRIAL IN LAKE COUNTY, INDIANA CRIMINAL COURT. 

"(2)  PROCUREMENT BY STATE AUTHORITIES OF A CONFESSION FROM
PETITIONER THROUGH FEAR PRODUCED BY THREATS AND PROLONGED QUESTIONING
DURING AN ILLEGAL DETENTION. 

"(3)  ADMISSION OF CONFESSION BEFORE PROOF OF THE CORPUS DELICTI. 

"(4)  ADMISSION INTO EVIDENCE OF EXHIBITS AND TESTIMONY OF
PETITIONER'S PRIOR COMMITMENT TO A MENTAL INSTITUTION AND CRIMES OF
RAPE AND ATTEMPTED RAPE ALLEGED TO HAVE BEEN COMMITTED BY THE
PETITIONER." 

FN12  WE DO NOT DEAL HERE WITH A PRELIMINARY SCREENING PROCEDURE
APPLICABLE ALIKE TO ALL CORAM NOBIS APPEALS.  NOR NEED WE DETERMINE IN
THIS CASE WHAT PROCEDURAL MEASURES INDIANA MIGHT CONSTITUTIONALLY TAKE
TO REDUCE THE PUBLIC EXPENSE OF INDIGENTS' APPEALS.  SEE GRIFFIN V.
ILLINOIS, 351 U.S., AT 20. 

SEPARATE OPINION OF MR. JUSTICE HARLAN, IN WHICH MR. JUSTICE CLARK
CONCURS. 

I THINK IT FALLS SHORT OF THE REQUIREMENTS OF DUE PROCESS FOR A STATE
TO FORECLOSE AN INDIGENT FROM APPEALING IN A CASE SUCH AS THIS AT THE
UNREVIEWABLE DISCRETION OF A PUBLIC DEFENDER BY WHOM, OR BY WHOSE
OFFICE, THE INDIGENT HAS BEEN REPRESENTED AT THE TRIAL.  IT IGNORES THE
HUMAN EQUATION NOT TO RECOGNIZE THE POSSIBILITY THAT A PUBLIC DEFENDER
SO CIRCUMSCRIBED MAY DECIDE NOT TO APPEAL QUESTIONS WHICH A LAWYER WHO
HAS HAD NO PREVIOUS CONNECTION WITH THE CASE MIGHT CONSIDER WORTHY OF
APPELLATE REVIEW.  (I DO NOT OF COURSE REMOTELY INTIMATE THAT SUCH IS
THE SITUATION HERE.) 

WERE IT CLEAR THAT THE DECISION OF THIS PUBLIC DEFENDER NOT TO APPEAL
HAD BEEN SUBJECT TO JUDICIAL REVIEW AT THE INSTANCE OF THE PRISONER, I
SHOULD HAVE VOTED TO SUSTAIN THIS CONVICTION.  HOWEVER, THE STATE
ATTORNEY GENERAL HAS CANDIDLY INFORMED US THAT THE INDIANA LAW IS
UNCLEAR ON THIS SCORE. 

ACCORDINGLY, WHILE AGREEING WITH THE COURT'S ACTION IN REMANDING THIS
CASE, I WOULD INSTRUCT THE DISTRICT COURT TO DISCHARGE THE PRISONER
ONLY IF THE INDIANA SUPREME COURT FAILS, WITHIN A REASONABLE TIME, TO
ACCORD HIM A REVIEW OF THE PUBLIC DEFENDER'S DECISION NOT TO APPEAL THE
DENIAL OF CORAM NOBIS. 
..END :























DRAPER V. WASHINGTON 372 U.S. 487 


NO. 201.  ARGUED JANUARY 16, 1963.  - DECIDED MARCH 18, 1963.  - 58
WASH. 2D 830, 365 P.2D 31, REVERSED AND CAUSE REMANDED. 


IN A TRIAL IN A STATE COURT, IN WHICH THEY WERE REPRESENTED BY COURT
APPOINTED COUNSEL, PETITIONERS WERE CONVICTED OF ROBBERY AND SENTENCED
TO IMPRISONMENT.  THEIR MOTIONS FOR A NEW TRIAL WERE DENIED.  BEING
INDIGENTS AND ACTING PRO SE, THEY FILED NOTICES OF APPEAL AND MOTIONS
FOR A FREE TRANSCRIPT OF THE RECORD.  AFTER A HEARING BEFORE THE TRIAL
JUDGE, AT WHICH PETITIONERS REPRESENTED THEMSELVES AND ALSO HAD THE
BENEFIT OF COURT-DIRECTED ARGUMENT BY THEIR TRIAL COUNSEL, THE TRIAL
JUDGE ENTERED FINDINGS OF FACT AND CONCLUSIONS OF LAW RESPECTING EACH
ERROR CLAIMED BY PETITIONERS.  HE THEN DENIED THEIR REQUEST FOR A
TRANSCRIPT, ON THE GROUND THAT THEIR ASSIGNMENTS OF ERROR WERE PATENTLY
FRIVOLOUS, THEIR GUILT HAD BEEN ESTABLISHED BY OVERWHELMING EVIDENCE,
AND THE FURNISHING OF A TRANSCRIPT WOULD WASTE PUBLIC FUNDS.  SOLELY ON
THE BASIS OF A RECORD OF THE HEARING ON THIS MOTION, THE STATE SUPREME
COURT SUSTAINED THE TRIAL JUDGE'S RULING ON THE MOTION.  HELD:  THE
RULES OF THE STATE OF WASHINGTON GOVERNING THE PROVISION OF TRANSCRIPTS
TO INDIGENT CRIMINAL DEFENDANTS FOR PURPOSES OF APPEAL WERE APPLIED IN
THIS CASE SO AS TO DEPRIVE PETITIONERS OF RIGHTS GUARANTEED TO THEM BY
THE FOURTEENTH AMENDMENT.  PP. 488-500. 

(A)  A STATE NEED NOT PURCHASE A STENOGRAPHER'S TRANSCRIPT IN EVERY
CASE WHERE A DEFENDANT CANNOT BUY IT.  ALTERNATIVE METHODS OF REPORTING
TRIAL PROCEEDINGS ARE PERMISSIBLE IF THEY PLACE BEFORE THE APPELLATE
COURT AN EQUIVALENT REPORT OF THE EVENTS AT TRIAL FROM WHICH THE
APPELLANT'S CONTENTIONS ARISE.  PP. 495-496. 

(B)  IN THIS CASE, THE MATERIALS BEFORE THE STATE SUPREME COURT WHEN
IT REVIEWED THE TRIAL JUDGE'S DENIAL OF A FREE TRANSCRIPT DID NOT
CONSTITUTE A RECORD OF SUFFICIENT COMPLETENESS FOR ADEQUATE
CONSIDERATION OF THE ERRORS ASSIGNED BY PETITIONERS ON THEIR APPEAL. 
PP. 496-497. 

(C)  BY ALLOWING THE TRIAL JUDGE TO PREVENT PETITIONERS FROM HAVING
STENOGRAPHIC SUPPORT OR ITS EQUIVALENT FOR PRESENTATION OF EACH OF
THEIR SEPARATE CONTENTIONS TO THE APPELLATE TRIBUNAL, THE STATE DENIED
THEM RIGHTS ASSURED THEM UNDER THE FOURTEENTH AMENDMENT.  PP. 497-499. 

(D)  THE CONCLUSION OF THE TRIAL JUDGE THAT AN INDIGENT'S APPEAL IS
FRIVOLOUS IS AN INADEQUATE SUBSTITUTE FOR THE FULL APPELLATE REVIEW
AVAILABLE TO NONINDIGENTS IN WASHINGTON, WHEN THE EFFECT OF THAT
FINDING IS TO PREVENT AN APPELLATE EXAMINATION BASED UPON A
SUFFICIENTLY COMPLETE RECORD OF THE TRIAL PROCEEDINGS THEMSELVES.  PP.
499-500. 

DRAPER ET AL. V. WASHINGTON ET AL. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS GRANTED IN THIS CASE, 370 U.S. 935, IN ORDER THAT THE
COURT MIGHT CONSIDER WHETHER THE STATE OF WASHINGTON'S RULES GOVERNING
THE PROVISION OF TRANSCRIPTS TO INDIGENT CRIMINAL DEFENDANTS FOR
PURPOSES OF APPEAL WERE APPLIED IN THIS CASE SO AS TO DEPRIVE
PETITIONERS OF RIGHTS GUARANTEED THEM BY THE FOURTEENTH AMENDMENT. 

THIS COURT HAS DEALT RECENTLY WITH THE CONSTITUTIONAL RIGHTS OF
INDIGENTS TO FREE TRANSCRIPTS ON APPEAL IN GRIFFIN V. ILLINOIS, 351
U.S. 12, AND ESKRIDGE V. WASHINGTON STATE BOARD OF PRISON TERMS AND
PAROLES, 357 U.S. 214.  THE PRINCIPLE OF GRIFFIN IS THAT "DESTITUTE
DEFENDANTS MUST BE AFFORDED AS ADEQUATE APPELLATE REVIEW AS DEFENDANTS
WHO HAVE MONEY ENOUGH TO BUY TRANSCRIPTS," 351 U.S., AT 19, A HOLDING
RESTATED IN ESKRIDGE TO BE "THAT A STATE DENIES A CONSTITUTIONAL RIGHT
GUARANTEED BY THE FOURTEENTH AMENDMENT IF IT ALLOWS ALL CONVICTED
DEFENDANTS TO HAVE APPELLATE REVIEW EXCEPT THOSE WHO CANNOT AFFORD TO
PAY FOR THE RECORDS OF THEIR TRIALS," 357 U.S., AT 216.  IN ESKRIDGE
THE QUESTION WAS THE VALIDITY OF WASHINGTON'S LONG-STANDING PROCEDURE
WHEREBY AN INDIGENT DEFENDANT WOULD RECEIVE A STENOGRAPHIC TRANSCRIPT
AT PUBLIC EXPENSE ONLY IF, IN THE OPINION OF THE TRIAL JUDGE, "JUSTICE
WILL THEREBY BE PROMOTED."  ID., AT 215.  THIS COURT HELD PER CURIAM
THAT, GIVEN WASHINGTON'S GUARANTEE OF THE RIGHT TO APPEAL TO THE
ACCUSED IN ALL CRIMINAL PROSECUTIONS, WASH. CONST., ART. I, SEC. 22 AND
AMEND. 10, "THE CONCLUSION OF THE TRIAL JUDGE THAT THERE WAS NO
REVERSIBLE ERROR IN THE TRIAL CANNOT BE AN ADEQUATE SUBSTITUTE FOR THE
RIGHT TO FULL APPELLATE REVIEW AVAILABLE TO ALL DEFENDANTS IN
WASHINGTON WHO CAN AFFORD THE EXPENSE OF A TRANSCRIPT," ID., AT 216,
AND REMANDED THE CAUSE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THE OPINION.  IN RESPONSE, IN WOODS V. RHAY, 54 WASH. 2D 36, 338 P.2D
332 (1959), A CASE WHICH WAS REMANDED BY THIS COURT FOR RECONSIDERATION
IN LIGHT OF ESKRIDGE TWO WEEKS AFTER THAT CASE WAS DECIDED, 357 U.S.
575, THE SUPREME COURT OF WASHINGTON FORMULATED A NEW SET OF RULES TO
GOVERN TRIAL JUDGES IN PASSING UPON INDIGENTS' REQUESTS FOR FREE
STENOGRAPHIC TRANSCRIPTS: 

"1.  AN INDIGENT DEFENDANT IN HIS MOTION FOR A FREE STATEMENT OF
FACTS MUST SET FORTH: 

"A.  THE FACT OF HIS INDIGENCY. 

"B.  THE ERRORS WHICH HE CLAIMS WERE COMMITTED; AND IF IT IS CLAIMED
THAT THE EVIDENCE IS INSUFFICIENT TO JUSTIFY THE VERDICT, HE SHALL
SPECIFY WITH PARTICULARITY IN WHAT RESPECT HE BELIEVES THE EVIDENCE IS
LACKING.  (THE ALLEGATIONS OF ERROR NEED NOT BE EXPRESSED IN ANY
TECHNICAL FORM BUT MUST CLEARLY INDICATE WHAT IS INTENDED.) 

"2.  IF THE STATE IS OF THE OPINION THAT THE ERRORS ALLEGED CAN
PROPERLY BE PRESENTED ON APPEAL WITHOUT A TRANSCRIPT OF ALL THE
TESTIMONY: 

"A.  IT MAY MAKE A SHOWING OF WHAT PORTION OF THE TRANSCRIPT WILL BE
ADEQUATE, OR: 

"B.  IF IT BELIEVES THAT A NARRATIVE STATEMENT WILL BE ADEQUATE, IT
MUST SHOW THAT SUCH A STATEMENT IS OR WILL BE AVAILABLE TO THE
DEFENDANT. 

"3.  THE TRIAL COURT IN DISPOSING OF AN INDIGENT'S MOTION FOR A
STATEMENT OF FACTS AT COUNTY EXPENSE SHALL ENTER FINDINGS OF FACT UPON
THE FOLLOWING MATTERS: 

"A.  THE DEFENDENT'S INDIGENCY: 

"B.  WHICH OF THE ERRORS, IF ANY, ARE FRIVOLOUS AND THE REASONS WHY
THEY ARE FRIVOLOUS: 

"C.  WHETHER A NARRATIVE FORM OF STATEMENT OF FACTS WILL BE ADEQUATE
TO PRESENT THE CLAIMED ERRORS FOR REVIEW AND WILL BE AVAILABLE TO THE
DEFENDANT; AND, IF NOT: 

"D.  WHAT PORTION OF THE STENOGRAPHIC TRANSCRIPT WILL BE NECESSARY TO
EFFECTUATE THE INDIGENT'S APPEAL. 

"4.  THE TRIAL COURT'S DISPOSITION OF THE MOTION SHALL BE BY
DEFINITIVE ORDER."  54 WASH. 2D, AT 44-45, 338 P.2D, AT 337. 

IT IS THE APPLICATION OF THESE RULES WHICH IS ASSERTED BY PETITIONERS
IN THE PRESENT CASE TO BE INCONSISTENT WITH THEIR CONSTITUTIONAL RIGHTS
AS DECLARED IN THE GRIFFIN AND ESKRIDGE CASES.  PETITIONERS, WHO ARE
CONCEDEDLY INDIGENT, WERE EACH CONVICTED OF TWO COUNTS OF ROBBERY BY A
JURY AND SENTENCED TO TWO CONSECUTIVE 20-YEAR TERMS AFTER A THREE-DAY
TRIAL ENDING ON SEPTEMBER 14, 1960, DURING WHICH THEY WERE REPRESENTED
BY COURT-APPOINTED COUNSEL.  THEIR MOTIONS FOR NEW TRIALS WERE DENIED. 
ON OCTOBER 20, ACTING PRO SE, THEY FILED TIMELY NOTICES OF APPEAL FROM
THE JUDGMENTS OF CONVICTION, AND THEN FILED IDENTICAL MOTIONS
REQUESTING THE TRIAL JUDGE TO ORDER PREPARATION OF A FREE TRANSCRIPT OF
THE RECORD AND STATEMENT OF FACTS.  (FN1)  DRAWN INARTISTICALLY, THESE
REQUESTS ASSERTED PETITIONERS' INDIGENCY AND THEN SET FORTH 12
ALLEGATIONS OF ERROR IN THE TRIAL, RELATING TO ADMISSION OF TESTIMONY
AND EXHIBITS, PERJURED AND SELF-CONTRADICTORY TESTIMONY, PREJUDICE OF
THE TRIAL JUDGE IN THE CONDUCT OF THE TRIAL, FAILURE TO ENFORCE THE
RULE AS TO EXCLUSION OF WITNESSES, AND FAILURE OF THE EVIDENCE TO
ESTABLISH THE ELEMENTS OF THE CRIME CHARGED.  EACH CONCLUDED THAT
"UNLESS DEFENDANT IS PROVIDED WITH A TRANSCRIPT AND STATEMENT OF FACTS
AT THE COUNTY EXPENSE, HE WILL BE UNABLE TO PROSECUTE THIS APPEAL." 

PETITIONERS' MOTIONS WERE HEARD ON NOVEMBER 28 BY THE JUDGE WHO HAD
PRESIDED AT THE JURY TRIAL.  PETITIONERS WERE PRESENT AT THE HEARING,
HAVING BEEN BROUGHT FROM THE STATE PENITENTIARY WHERE THEY WERE AND
STILL ARE INCARCERATED.  ALTHOUGH THEY NO LONGER WISHED THE AID OF
COUNSEL, THE JUDGE, IN ACCORDANCE WITH A STATEMENT IN WOODS V. RHAY,
(FN2) DIRECTED TRIAL COUNSEL TO SPEAK IN PETITIONERS' BEHALF.  COUNSEL
ATTEMPTED, AS BEST HE COULD FROM HIS RECOLLECTION OF A TRIAL WHICH HAD
OCCURRED TWO AND ONE-HALF MONTHS EARLIER, TO ELABORATE UPON THE
SPECIFICATIONS OF ERROR IN PETITIONERS' MOTIONS.  THE OBJECTIONS TO
EXHIBITS, HE STATED, RELATED TO A GUN INTRODUCED AGAINST PETITIONER
DRAPER, AND A JACKET, CLAIMED TO HAVE BEEN FOUND WITH MONEY IN IT,
INTRODUCED AS BELONGING TO PETITIONER LORENTZEN.  COUNSEL EXPLAINED AT
LENGTH THAT HE RAGARDED THE FOUNDATION LAID FOR INTRODUCING THESE ITEMS
TO HAVE BEEN EXTREMELY WEAK, AND THAT RECEIPT OF THE EVIDENCE ON SUCH A
SLIM FOUNDATION WAS PREJUDICIAL.  HE SUGGESTED THAT PETITIONER DRAPER
HAD BEEN IDENTIFIED ONLY BY AN ALLEGED ACCOMPLICE, JENNINGS, WHOSE
TESTIMONY WAS ALSO CONTRADICTORY AND PERJURIOUS.  COUNSEL ALSO ARGUED
THAT THE PROSECUTION HAD FAILED TO PROVE BOTH THE EXISTENCE OF THE
CORPORATION WHICH THE INDICTMENT DESCRIBED AS OWNING ONE OF THE ROBBED
MOTELS, AND THE POSSESSORY RIGHT OF ITS AGENT TO THE MONEY TAKEN.  "IN
MY OPINION," HE SAID, "THOSE TWO OMISSIONS ARE VERY IMPORTANT, IF NOT
FATAL IN THIS CASE."  FURTHER, COUNSEL REFERRED TO PETITIONERS'
CONTENTION THAT TWO WITNESSES WERE IMPROPERLY ALLOWED TO SIT IN THE
COURTROOM PRIOR TO TESTIFYING, AND SAID THAT HE HAD NO PERSONAL
KNOWLEDGE OF THE FACTS SUPPORTING THE CONTENTION BUT THAT SINCE
DEFENDANTS HAD INVOKED THE EXCLUSION-OF-WITNESSES RULE AT TRIAL THERE
WAS PERHAPS SOMETHING TO THE CONTENTION.  FINALLY, COUNSEL ARGUED THAT
PETITIONERS' CONTENTION THAT THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN
THE CONVICTION WAS, UNDER WOODS V. RHAY AND ANALOGOUS DECISIONS OF THIS
COURT GOVERNING THE RIGHTS OF FEDERAL PRISONERS, ENOUGH IN ITSELF TO
ENTITLE THEM TO A TRANSCRIPT. 

SINCE PETITIONERS HAD NOT DESIRED COUNSEL'S ASSISTANCE, PETITIONER
DRAPER WAS ALLOWED TO ARGUE WHEN COUNSEL FINISHED.  HE STATED IN A
LAYMAN'S WAY WHAT HE BELIEVED WERE THE TRIAL ERRORS, BUT WHEN
INTERROGATED BY THE TRIAL JUDGE FOR SUPPORTING DETAILS HE ASSERTED HIS
INABILITY TO GIVE ANY WITHOUT A TRANSCRIPT. 

THE PROSECUTOR OPPOSED THE MOTION BOTH BY AFFIDAVIT AND BY ARGUMENT
AT THE HEARING.  HIS AFFIDAVIT SUMMARIZED IN SEVERAL PARAGRAPHS HIS
CONTRARY INTERPRETATION OF THE EVIDENCE, WHICH ACCORDING TO HIM PLAINLY
ESTABLISHED THE DEFENDANTS' GUILT.  IN HIS ARGUMENT HE UNDERTOOK TO
REFUTE EACH OF PETITIONERS' ASSIGNMENTS OF ERROR.  HE CONTENDED,
THEREFORE, THAT PETITIONERS' MOTIONS FOR FREE TRANSCRIPTS AND
STATEMENTS OF FACTS SHOULD BE DENIED BECAUSE "THERE IS NOTHING HERE TO
SUPPORT ANY SUBSTANTIAL CLAIM OF ERROR WHATSOEVER." 

THE TRIAL JUDGE, UPON CONCLUSION OF THE PROSECUTOR'S ARGUMENT,
REVIEWED PETITIONERS' ASSIGNMENTS OF ERROR AND INDICATED ORALLY THAT HE
WOULD DENY THEIR MOTIONS.  ON DECEMBER 12 HE ENTERED AN ORDER, COUPLED
WITH FORMAL FINDINGS OF FACT AND CONCLUSIONS OF LAW, IN WHICH HE
CONCLUDED: 

"THAT THE ASSIGNMENTS OF ERROR AS SET OUT BY EACH DEFENDANT ARE
PATENTLY FRIVOLOUS; THAT THE GUILT OF EACH DEFENDANT AS TO EACH COUNT
OF ROBBERY WAS ESTABLISHED BY OVERWHELMING EVIDENCE, AND THAT
ACCORDINGLY THE FURNISHED OF A STATEMENT OF FACTS WOULD RESULT IN A
WASTE OF PUBLIC FUNDS." 

HIS FINDINGS SUMMARIZED IN SIX PARAGRAPHS THE FACTS WHICH HE THOUGHT
HAD BEEN PROVEN AT THE THREE-DAY TRIAL.  THIS SUMMARY CONSTITUTED ONLY
THE TRIAL JUDGE'S CONCLUSIONS ABOUT THE OPERATIVE FACTS, WITHOUT ANY
DESCRIPTION WHATSOEVER OF THE EVIDENCE UPON WHICH THOSE CONCLUSIONS
WERE BASED.  AFTER STATING THESE FACTUAL CONCLUSIONS, THE JUDGE
SPECIFICALLY REJECTED EACH OF PETITIONERS' 12 ASSIGNMENTS OF ERROR WITH
A SUMMARY STATEMENT - ALMOST WHOLLY CONCLUSORY - CONCERNING EACH. 

PETITIONERS SOUGHT REVIEW BY CERTIORARI OF THE TRIAL COURT'S ORDER IN
THE SUPREME COURT OF WASHINGTON.  DEPARTMENT ONE OF THAT COURT QUASHED
THE WRIT, HOLDING THAT THE TRIAL COURT HAD PROPERLY APPLIED THE
PRINCIPLES OF WOODS V. RHAY AND HAD CORRECTLY FOUND THE APPEAL TO BE
FRIVOLOUS.   58 WASH. 2D 830, 365 P.2D 31.  BY THE VERY NATURE OF THE
PROCEDURE, THE SUPREME COURT'S RULING WAS MADE WITHOUT BENEFIT OF
REFERENCE TO ANY PORTION OF A STENOGRAPHIC TRANSCRIPT OF THE JURY
TRIAL.  SOLELY ON THE BASIS OF THE STENOGRAPHIC RECORD OF THE HEARING
ON THE MOTION, THE SUPREME COURT STATED THAT "IT WOULD SERVE NO USEFUL
PURPOSE TO SET FORTH  ...  THE EVIDENCE IN DETAIL," 58 WASH. 2D, AT
832, 365 P.2D, AT 33, AND INSTEAD PURPORTED TO SUMMARIZE THE OPERATIVE
FACTS BRIEFLY, BASED ENTIRELY AND UNCRITICALLY ON THE TRIAL JUDGE'S
CONCLUSIONS AS TO WHAT HAD OCCURRED.  THESE CONCLUSORY STATEMENTS,
ARRIVED AT WITHOUT ANY EXAMINATION OF THE UNDERLYING EVIDENCE, WERE
THEN (INEVITABLY, GIVEN THE NATURE OF THE TRIAL JUDGE'S CONCLUSIONS)
CHARACTERIZED AS SUFFICIENT TO SHOW THAT ALL OF THE ELEMENTS OF THE
CRIME OF ROBBERY WERE ESTABLISHED BY THE EVIDENCE.  (FN3)  THE COURT
CONCLUDED BY BRIEFLY DEALING WITH AND REJECTING PETITIONERS' SPECIFIC
ASSIGNMENTS OF ERROR, JUST AS THE TRIAL JUDGE HAD DONE. 

PETITIONERS CONTEND THAT THE PRESENT WASHINGTON PROCEDURE FOR
INDIGENT APPEALS HAS NOT CURED THE CONSTITUTIONAL DEFECTS DISAPPROVED
IN ESKRIDGE.  THEY ARGUE THAT A STANDARD WHICH CONDITIONS EFFECTIVE
APPEAL ON A TRIAL JUDGE'S FINDING, EVEN THOUGH IT BE ONE OF
NONFRIVOLITY INSTEAD OF PROMOTION OF JUSTICE, DENIES THEM ADEQUATE
APPELLATE REVIEW.  UNDER THE PRESENT STANDARD, JUST AS UNDER THE
DISAPPROVED ONE, THEY MUST CONVINCE THE TRIAL JUDGE THAT THEIR
CONTENTIONS OF ERROR HAVE MERIT BEFORE THEY CAN OBTAIN THE FREE
TRANSCRIPT NECESSARY TO PROSECUTE THEIR APPEAL.  FAILING TO CONVINCE
THE TRIAL JUDGE, THEY CONTINUE, THEY ARE DENIED ADEQUATE APPELLATE
REVIEW BECAUSE THE SUPREME COURT THEN PASSES UPON THEIR ASSIGNMENTS OF
ERROR WITHOUT CONSIDERATION OF THE RECORD OF THE TRIAL PROCEEDINGS,
WHEREAS DEFENDANTS WITH MONEY TO BUY A TRANSCRIPT ARE ALLOWED A DIRECT
APPEAL TO THE SUPREME COURT, WHICH AFFORDS THEM FULL REVIEW OF THEIR
CONTENTIONS.  THE STATE ARGUES THAT THIS DIFFERENCE IN PROCEDURE IS
JUSTIFIABLE BECAUSE IT SAFEGUARDS AGAINST FRIVOLOUS APPEALS BY
INDIGENTS WHILE GUARANTEEING THEM APPELLATE REVIEW IN CASES WHERE SUCH
REVIEW IS EVEN OF POTENTIAL UTILITY.  (FN4) 

IN CONSIDERING WHETHER PETITIONERS HERE RECEIVED AN ADEQUATE
APPELLATE REVIEW, WE REAFFIRM THE PRINCIPLE, DECLARED BY THE COURT IN
GRIFFIN, THAT A STATE NEED NOT PURCHASE A STENOGRAPHER'S TRANSCRIPT IN
EVERY CASE WHERE A DEFENDANT CANNOT BUY IT.  351 U.S., AT 20. 
ALTERNATIVE METHODS OF REPORTING TRIAL PROCEEDINGS ARE PERMISSIBLE IF
THEY PLACE BEFORE THE APPELLATE COURT AN EQUIVALENT REPORT OF THE
EVENTS AT TRIAL FROM WHICH THE APPELLANT'S CONTENTIONS ARISE.  A
STATEMENT OF FACTS AGREED TO BY BOTH SIDES, A FULL NARRATIVE STATEMENT
BASED PERHAPS ON THE TRIAL JUDGE'S MINUTES TAKEN DURING TRIAL OR ON THE
COURT REPORTER'S UNTRANSCRIBED NOTES, OR A BYSTANDER'S BILL OF
EXCEPTIONS MIGHT ALL BE ADEQUATE SUBSTITUTES, EQUALLY AS GOOD AS A
TRANSCRIPT.  MOREOVER, PART OR ALL OF THE STENOGRAPHIC TRANSCRIPT IN
CERTAIN CASES WILL NOT BE GERMANE TO CONSIDERATION OF THE APPEAL, AND A
STATE WILL NOT BE REQUIRED TO EXPEND ITS FUNDS NECESSARILY IN SUCH
CIRCUMSTANCES.  IF, FOR INSTANCE, THE POINTS URGED RELATE ONLY TO THE
VALIDITY OF THE STATUTE OR THE SUFFICIENCY OF THE INDICTMENT UPON WHICH
CONVICTION WAS PREDICATED, THE TRANSCRIPT IS IRRELEVANT AND NEED NOT BE
PROVIDED.  IF THE ASSIGNMENTS OF ERROR GO ONLY TO RULINGS ON EVIDENCE
OR TO ITS SUFFICIENCY, THE TRANSCRIPT PROVIDED MIGHT WELL BE LIMITED TO
THE PORTIONS RELEVANT TO SUCH ISSUES.  EVEN AS TO THIS KIND OF ISSUE,
HOWEVER, IT IS UNNECESSARY TO AFFORD A RECORD OF THE PROCEEDINGS
PERTAINING TO AN ALLEGED FAILURE OF PROOF ON A POINT WHICH IS
IRRELEVANT AS A MATTER OF LAW TO THE ELEMENTS OF THE CRIME FOR WHICH
THE DEFENDANT HAS BEEN CONVICTED.  (FN5)  IN THE EXAMPLES GIVEN, THE
FACT THAT AN APPELLANT WITH FUNDS MAY CHOOSE TO WASTE HIS MONEY BY
UNNECESSARILY INCLUDING IN THE RECORD ALL OF THE TRANSCRIPT DOES NOT
MEAN THAT THE STATE MUST WASTE ITS FUNDS BY PROVIDING WHAT IS
UNNECESSARY FOR ADEQUATE APPELLATE REVIEW.  IN ALL CASES THE DUTY OF
THE STATE IS TO PROVIDE THE INDIGENT AS ADEQUATE AND EFFECTIVE AN
APPELLATE REVIEW AS THAT GIVEN APPELLANTS WITH FUNDS - THE STATE MUST
PROVIDE THE INDIGENT DEFENDANT WITH MEANS OF PRESENTING HIS CONTENTIONS
TO THE APPELLATE COURT WHICH ARE AS GOOD AS THOSE AVAILABLE TO A
NONINDIGENT DEFENDANT WITH SIMILAR CONTENTIONS.    PETITIONERS'
CONTENTIONS IN THE PRESENT CASE WERE SUCH THAT THEY COULD NOT BE
ADEQUATELY CONSIDERED BY THE STATE SUPREME COURT ON THE LIMITED RECORD
BEFORE IT.  THE ARGUMENTS ABOUT IMPROPER FOUNDATION FOR INTRODUCTION OF
THE GUN AND COAT, FOR EXAMPLE, COULD NOT BE DETERMINED ON THEIR MERITS
AS THEY WOULD HAVE BEEN ON A NONINDIGENT'S APPEAL - WITHOUT RECOURSE,
AT A MINIMUM, TO THE PORTIONS OF THE RECORD OF THE TRIAL PROCEEDINGS
RELATING TO THIS POINT.  (FN6)  AGAIN, THE ASSERTED FAILURE OF PROOF
WITH RESPECT TO IDENTIFICATION OF THE DEFENDANTS AND THE ALLEGATIONS OF
PERJURY AND INCONSISTENT TESTIMONY WERE SIMILARLY IMPOSSIBLE TO PASS
UPON WITHOUT DIRECT STUDY OF THE RELEVANT PORTIONS OF THE TRIAL
RECORD.  FINALLY, THE ALLEGED FAILURE OF THE EVIDENCE TO SUSTAIN THE
CONVICTION COULD NOT BE DETERMINED ON THE INADEQUATE INFORMATION BEFORE
THE WASHINGTON SUPREME COURT. 

THE MATERIALS BEFORE THE STATE SUPREME COURT IN THIS CASE DID NOT
CONSTITUTE A "RECORD OF SUFFICIENT COMPLETENESS," SEE COPPEDGE V.
UNITED STATES, 369 U.S. 438, 446, AND P. 498, INFRA, FOR ADEQUATE
CONSIDERATION OF THE ERRORS ASSIGNED.  NO RELEVANT PORTIONS OF THE
STENOGRAPHIC TRANSCRIPT WERE BEFORE IT.  THE ONLY AVAILABLE DESCRIPTION
OF WHAT OCCURRED AT THE TRIAL WAS THE SUMMARY FINDINGS OF THE TRIAL
COURT AND THE COUNTER-AFFIDAVIT FILED BY THE PROSECUTOR.  THE FORMER
WAS NOT IN ANY SENSE LIKE A FULL NARRATIVE STATEMENT BASED UPON THE
DETAILED MINUTES OF A JUDGE KEPT DURING TRIAL.  IT WAS, SO FAR AS WE
KNOW, PREMISED UPON RECOLLECTIONS AS OF A TIME NEARLY THREE MONTHS
AFTER TRIAL AND, FAR FROM BEING A NARRATIVE OR SUMMARY OF THE ACTUAL
TESTIMONY AT THE TRIAL, WAS MERELY A SET OF CONCLUSIONS.  THE
PROSECUTOR'S AFFIDAVIT CAN BY NO STRETCH OF THE IMAGINATION BE
ANALOGIZED TO A BYSTANDER'S BILL OF EXCEPTIONS.  THE FACT RECITALS IN
IT WERE IN MOST SUMMARY FORM, WERE PREPARED BY AN ADVOCATE SEEKING
DENIAL OF A MOTION FOR FREE TRANSCRIPT, AND WERE CONTESTED BY
PETITIONERS AND THEIR COUNSEL AT THE HEARING ON THAT MOTION. 

BY ALLOWING THE TRIAL COURT TO PREVENT PETITIONERS FROM HAVING
STENOGRAPHIC SUPPORT OR ITS EQUIVALENT FOR PRESENTATION OF EACH OF
THEIR SEPARATE CONTENTIONS TO THE APPELLATE TRIBUNAL, THE STATE OF
WASHINGTON HAS DENIED THEM THE RIGHTS ASSURED THEM BY THIS COURT'S
DECISIONS IN GRIFFIN AND ESKRIDGE.  THE RULES SET OUT IN WOODS V. RHAY
CONTEMPLATE A PROCEDURE WHICH COULD HAVE BEEN FOLLOWED HERE TO AFFORD
THE PETITIONERS WHAT THE CONSTITUTION REQUIRES.  THUS, IN ACCORDANCE
WITH THOSE RULES, THE STATE COULD HAVE ENDEAVORED TO SHOW THAT A
NARRATIVE STATEMENT OR ONLY A PORTION OF THE TRANSCRIPT WOULD BE
ADEQUATE AND AVAILABLE FOR APPELLATE CONSIDERATION OF PETITIONERS'
CONTENTIONS.  THE TRIAL JUDGE WOULD HAVE COMPLIED WITH BOTH THE
CONSTITUTIONAL MANDATE AND THE RULES IN LIMITING THE GRANT ACCORDINGLY
ON THE BASIS OF SUCH A SHOWING BY THE STATE.  WHAT WAS IMPERMISSIBLE
WAS THE TOTAL DENIAL TO PETITIONERS OF ANY MEANS OF GETTING ADEQUATE
REVIEW ON THE MERITS IN THE STATE SUPREME COURT, WHEN NO SUCH CLOG ON
THE PROCESS OF GETTING CONTENTIONS BEFORE THE STATE SUPREME COURT
ATTENDS THE APPEALS OF DEFENDANTS WITH MONEY. 

THE WASHINGTON RULES AS APPLIED HERE COME TO THIS:  AN INDIGENT
DEFENDANT WISHING TO APPEAL AND NEEDING A TRANSCRIPT TO DO SO MAY ONLY
OBTAIN IT IF THE JUDGE WHO HAS PRESIDED AT HIS TRIAL AND HAS ALREADY
OVERRULED HIS MOTION FOR A NEW TRIAL AS WELL AS HIS OBJECTIONS TO
EVIDENCE AND TO CONDUCT OF THE TRIAL FINDS THAT THESE CONTENTIONS, UPON
WHICH HE HAS ALREADY RULED, ARE NOT FRIVOLOUS.  THE PREDICTABLE FINDING
OF FRIVOLITY IS SUBJECT TO REVIEW WITHOUT ANY DIRECT SCRUTINY OF THE
RELEVANT ASPECTS OF WHAT ACTUALLY OCCURRED AT THE TRIAL, BUT RATHER
WITH EXAMINATION ONLY OF WHAT THE PARTIES ARGUED AT THE HEARING ON THE
TRANSCRIPT MOTION AND WHAT THE JUDGE RECALLED AND THEREAFTER SUMMARILY
FOUND AS TO WHAT WENT ON AT THE TRIAL. 

THIS COURT, IN COPPEDGE V. UNITED STATES, 369 U.S. 438, 446, DEALT
WITH SIMILAR VICES IN THE FEDERAL COURTS BY REQUIRING THAT WHEN A
DEFENDANT DENIED LEAVE TO APPEAL IN FORMA PAUPERIS BY THE DISTRICT
COURT APPLIES TO THE COURT OF APPEALS FOR LEAVE TO APPEAL, THAT COURT,
WHEN THE SUBSTANCE OF THE APPLICANT'S CLAIMS CANNOT BE ADEQUATELY
ASCERTAINED FROM THE FACE OF HIS APPLICATION (AS IN THE PRESENT CASE),
MUST PROVIDE A "RECORD OF SUFFICIENT COMPLETENESS TO ENABLE HIM TO
ATTEMPT TO MAKE A SHOWING THAT THE DISTRICT COURT'S CERTIFICATE OF LACK
OF 'GOOD FAITH' IS IN ERROR AND THAT LEAVE TO PROCEED  ...  IN FORMA
PAUPERIS SHOULD BE ALLOWED."  HERE, SIMILARLY, THE WASHINGTON SUPREME
COURT COULD NOT DENY PETITIONERS' REQUEST FOR REVIEW OF THE DENIAL OF
THE TRANSCRIPT MOTION WITHOUT FIRST GRANTING THEM A "RECORD OF
SUFFICIENT COMPLETENESS" TO PERMIT PROPER CONSIDERATION OF THEIR
CLAIMS.  SUCH A GRANT WOULD HAVE ENSURED PETITIONERS A RIGHT TO REVIEW
OF THEIR CONVICTIONS AS ADEQUATE AND EFFECTIVE AS THAT WHICH WASHINGTON
GUARANTEES TO NONINDIGENTS.  MOREOVER, SINCE NOTHING WE SAY TODAY
MILITATES AGAINST A STATE'S FORMULATION AND APPLICATION OF OPERATIVELY
NONDISCRIMINATORY RULES TO BOTH INDIGENTS AND NONINDIGENTS IN ORDER TO
GUARD AGAINST FRIVOLOUS APPEALS, THE AFFORDING OF A "RECORD OF
SUFFICIENT COMPLETENESS" TO INDIGENTS WOULD ENSURE THAT, IF THE APPEALS
OF BOTH INDIGENTS AND NONINDIGENTS ARE TO BE TESTED FOR FRIVOLITY, THEY
WILL BE TESTED ON THE SAME BASIS BY THE REVIEWING COURT.  COMPARE ELLIS
V. UNITED STATES, 356 U.S. 674; COPPEDGE V. UNITED STATES, SUPRA, 369
U.S., AT 447-448. 

IN ESKRIDGE THIS COURT HELD THAT "THE CONCLUSION OF THE TRIAL JUDGE
THAT THERE WAS NO REVERSIBLE ERROR IN THE TRIAL CANNOT BE AN ADEQUATE
SUBSTITUTE FOR THE RIGHT TO FULL APPELLATE REVIEW AVAILABLE TO ALL
DEFENDANTS IN WASHINGTON WHO CAN AFFORD THE EXPENSE OF A TRANSCRIPT." 
357 U.S., AT 216.  WE HOLD TODAY THAT THE CONCLUSION OF THE TRIAL JUDGE
THAT AN INDIGENT'S APPEAL IS FRIVOLOUS IS A SIMILARLY INADEQUATE
SUBSTITUTE FOR THE FULL APPELLATE REVIEW AVAILABLE TO NONINDIGENTS IN
WASHINGTON, WHEN THE EFFECT OF THAT FINDING IS TO PREVENT AN APPELLATE
EXAMINATION BASED UPON A SUFFICIENTLY COMPLETE RECORD OF THE TRIAL
PROCEEDINGS THEMSELVES. 

THE JUDGMENT OF THE WASHINGTON SUPREME COURT IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  WASHINGTON PRACTICE REFERS TO COPIES OF THE VARIOUS DOCUMENTS
FILED WITH THE CLERK OF THE TRIAL COURT AS THE "TRANSCRIPT OF THE
RECORD," RULE 44 OF THE RULES ON APPEAL, AND TO THE COURT REPORTER'S
TRANSCRIPTION OF TRIAL PROCEEDINGS AS THE "STATEMENT OF FACTS," RULE 35
OF THE RULES ON APPEAL.  IN ACCORDANCE WITH COMMON USAGE, THE LATTER
WILL OFTEN BE REFERRED TO HEREIN AS THE "TRANSCRIPT" AND THE
"STENOGRAPHIC TRANSCRIPT." 

FN2  "WHERE COURT-APPOINTED COUNSEL HAS REPRESENTED THE DEFENDANT AT
THE TRIAL, HIS SERVICES SHOULD BE MADE AVAILABLE TO THE DEFENDANT FOR
THE PURPOSE OF PRESENTING THE MOTION."  54 WASH. 2D, AT 44, N. 3, 338
P.2D, AT 337, N. 2. 

FN3  THE STATE SUPREME COURT TWICE DECLARED THAT THE DEFENDANTS HAD
NOT CHALLENGED THE TRIAL COURT'S RECOLLECTION OF THE EVIDENCE,
APPARENTLY IMPLYING THAT DEFENDANTS HAD ABANDONED ANY CLAIMS RESTING ON
INSUFFICIENCY OF OR INCONSISTENCIES IN THE EVIDENCE.  HOWEVER, THE
RECORD, INCLUDING THE BRIEFS FILED IN THE STATE SUPREME COURT, DOES NOT
SUPPORT THIS CONCLUSION.  PETITIONERS' PRO SE BRIEF IN THE STATE
SUPREME COURT, SUCH AS IT WAS, WAS BASED ON THE BROAD PROPOSITION THAT
UNDER GRIFFIN AND ESKRIDGE THEY WERE ENTITLED TO A TRANSCRIPT IN ORDER
TO APPEAL, A POINTLESS CONTENTION IF BY SO STATING THE ARGUMENT THEY
MEANT TO WAIVE THE RIGHT TO HAVE THE STATE SUPREME COURT CONSIDER SOME
OR POSSIBLY ALL OF THE UNDERLYING ALLEGATIONS OF ERROR.  THEIR VIGOROUS
ARGUMENTS AT THE HEARING ON THE TRANSCRIPT MOTION WERE MEANINGLESS IF
THEY WERE WILLING TO ACCEPT THE PROSECUTION'S VERSION OF THE FACTS.  IT
SHOULD BE NOTED, HOWEVER, THAT THE STATE SUPREME COURT DID,
NOTWITHSTANDING ITS COMMENTS, CONSIDER PETITIONERS' ASSIGNMENTS OF
ERROR. 

FN4  THE STATE ALSO ARGUES THAT IN PRACTICAL EFFECT THERE IS NO
DIFFERENCE AT ALL BETWEEN THE RIGHTS IT AFFORDS INDIGENTS AND
NONINDIGENTS, BECAUSE A MONEYED DEFENDANT MOTIVATED BY A "SENSE OF
THRIFT," WILL CHOOSE NOT TO APPEAL IN EXACTLY THE SAME CIRCUMSTANCES
THAT AN INDIGENT WILL BE DENIED A TRANSCRIPT.  WE REJECT THIS
CONTENTION AS UNTENABLE.  IT DEFIES COMMON SENSE TO THINK THAT A
MONEYED DEFENDENT FACED WITH LONG-TERM IMPRISONMENT AND ADVISED BY
COUNSEL THAT HE HAS SUBSTANTIAL GROUNDS FOR APPEAL, AS PETITIONERS WERE
HERE, WILL CHOOSE NOT TO APPEAL MERELY TO SAVE THE COST OF A
TRANSCRIPT.  THE STATE'S PROCEDURE FOR INDIGENTS, THEREFORE, CANNOT BE
JUSTIFIED AS AN ATTEMPT TO EQUALIZE THE INCIDENCE OF APPEAL AS BETWEEN
INDIGENTS AND NONINDIGENTS. 

FN5  FOR EXAMPLE, THE STATE SUPREME COURT HERE HELD THAT, UNDER
WASHINGTON LAW, PROOF OF THE EXISTENCE OF THE CORPORATION ROBBED IS
UNNECESSARY TO A CONVICTION FOR ROBBERY, THUS OBVIATING THE NEED FOR A
RECORD OF THE TESTIMONY RELEVANT TO THIS POINT. 

FN6  THE WASHINGTON COURTS STATED THAT THE ASSERTED LACK OF
FOUNDATION WENT TO THE WEIGHT OF THE EVIDENCE AND NOT TO ITS
ADMISSIBILITY.  THIS CONCLUSION, HOWEVER, IN CONTRAST TO THE HOLDING
THAT THE EXISTENCE OF THE ROBBED CORPORATION WAS IRRELEVANT AS A MATTER
OF LAW, NECESSARILY DEPENDED UPON AN EXAMINATION - NEVER MADE - OF THE
APPROPRIATE PORTIONS OF THE RECORD TO TEST WHETHER THE EVIDENCE CLAIMED
TO ESTABLISH THE FOUNDATION WAS IN FACT SUFFICIENT TO MEET THE
THRESHOLD STANDARD OF ADMISSIBILITY. 

MR. JUSTICE WHITE, WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR.
JUSTICE STEWART JOIN, DISSENTING. 

THE SUPREME COURT OF WASHINGTON IN THIS CASE DETERMINED THAT THE
ISSUES RAISED BY PETITIONERS IN THAT COURT WERE WITHOUT MERIT AND
FRIVOLOUS.  IN MY JUDGMENT PETITIONERS WERE AFFORDED AN ADEQUATE
APPELLATE REVIEW UPON A SATISFACTORY RECORD.  CONSEQUENTLY, WITH ALL
DUE DEFERENCE, I DISSENT. 

                       I. 

THE COURT, AS IT SHOULD, GRIFFIN V. ILLINOIS, 351 U.S. 12, 20;
ESKRIDGE V. WASHINGTON STATE BOARD, 357 U.S. 214, 216; CF. JOHNSON V.
UNITED STATES, 352 U.S. 565; COPPEDGE V. UNITED STATES, 369 U.S. 438,
446, CAREFULLY AVOIDS REQUIRING THE STATE TO SUPPLY AN INDIGENT WITH A
STENOGRAPHIC TRANSCRIPT OF PROCEEDINGS IN EVERY CASE.  IT WOULD PERMIT
THE STATE TO FURNISH AN ADEQUATE RECORD SUBSTANTIALLY EQUIVALENT TO THE
TRANSCRIPT WHICH COULD BE PURCHASED BY AN APPELLANT WITH RESOURCES AND
WOULD ACCEPT A NARRATIVE STATEMENT BASED UPON THE JUDGE'S NOTES OR A
BYSTANDER'S BILL OF EXCEPTIONS.  BY ANY OF THESE STANDARDS ARTICULATED
BY THE COURT, HOWEVER, I AM QUITE UNABLE TO FATHOM WHY AND IN WHAT
RESPECTS THE RECORD PLACED BEFORE THE WASHINGTON SUPREME COURT WAS NOT
WHOLLY SATISFACTORY, JUST AS THE WASHINGTON SUPREME COURT DETERMINED
THAT IT WAS. 

FOLLOWING PETITIONERS' CONVICTION AND THE DENIAL OF THE MOTION FOR A
NEW TRIAL, PETITIONERS FILED A MOTION BEFORE THE TRIAL COURT SETTING
FORTH THEIR CLAIMED ERRORS AND REQUESTING A TRANSCRIPT FOR PURPOSES OF
APPEAL.  THE STATE, OPPOSING THE REQUEST FOR A TRANSCRIPT, RESPONDED BY
PRESENTING THE EVIDENCE AT THE TRIAL IN A NARRATIVE FORM BY AFFIDAVIT
OF THE PROSECUTING ATTORNEY.  A HEARING WAS HELD AT WHICH BOTH THE
ATTORNEY WHO REPRESENTED THE PETITIONERS AT THE TRIAL AND THE
PETITIONERS THEMSELVES WERE FREE TO CHALLENGE THE ACCURACY OF THE
STATE'S NARRATIVE OF THE FACTS OR TO SUPPLEMENT IT IN ANY WAY.  THE
STATEMENTS AND ARGUMENTS OF PETITIONERS AND THEIR ATTORNEY AT THE
HEARING WERE INCLUDED IN THE MATERIAL BEFORE THE SUPREME COURT AND
ADDED CONSIDERABLY TO THE STATE'S SUMMARY, AS DID THE COURT'S ORAL
OPINION AND THE COLLOQUIES BETWEEN THE COURT AND PETITIONER DRAPER. 
FINALLY, THE COURT, AS IT WAS REQUIRED TO DO, ENTERED FINDINGS OF FACT
SETTING FORTH THE EVIDENCE AT THE TRIAL AND RULING UPON EACH ERROR
CLAIMED BY PETITIONERS.  THE FINDINGS, AS WELL AS THE COURT'S
STATEMENTS DURING THE CONDUCT OF THE HEARING, WENT SUBSTANTIALLY BEYOND
THE SUMMARY PRESENTED BY THE STATE AND WERE EXPRESSLY INTENDED BY THE
TRIAL JUDGE TO SET FORTH THE "SUBSTANCE OF THE TESTIMONY" SO THAT THE
MATTERS RELIED UPON BY PETITIONERS COULD BE PRESENTED TO THE WASHINGTON
SUPREME COURT. 

WE THUS HAVE A SITUATION WHERE THE COURT, IN GOOD FAITH, UTILIZING
ITS OWN KNOWLEDGE AND INFORMATION ABOUT THE TRIAL AND WITH THE HELP OF
THE STATE, THE DEFENDANTS AND THEIR COUNSEL, IN EFFECT PREPARED AND
SETTLED A NARRATIVE STATEMENT OF THE EVIDENCE FOR THE USE OF THE
APPELLATE COURT IN PASSING UPON THE MERITS OF THE ALLEGED ERRORS.  THE
RECORD BEFORE THE WASHINGTON SUPREME COURT CONTAINED NOT ONLY THE
FINDINGS MADE BY THE TRIAL JUDGE AFTER A HEARING, BUT ALSO EVERYTHING
SAID AT THE HEARING BY THE DEFENDANTS, BY THEIR ATTORNEY AND BY THE
PROSECUTOR.  FURTHERMORE, BRIEFS WERE FILED IN THE SUPREME COURT OF
WASHINGTON AND THE COURT HEARD ORAL ARGUMENT BY APPOINTED COUNSEL. 

IF THE COURT WOULD ACCEPT A NARRATIVE STATEMENT BASED UPON THE
JUDGE'S NOTES, I AM AT A LOSS TO UNDERSTAND WHY THE ABOVE PROCEDURE
DOES NOT SATISFY THE COURT'S OWN REQUIREMENTS, PARTICULARLY WHEN
THROUGHOUT THIS ENTIRE PROCEEDING NEITHER THE PETITIONERS NOR THEIR
ATTORNEY CHALLENGED THE ACCURACY OF ANY STATEMENT IN THE SUMMARY
PREPARED BY THE TRIAL COURT AND WHEN EVERY OPPORTUNITY WAS GIVEN THEM
TO ADD TO THIS RECORD.  WHILE CLAIMING GENERALLY THAT A TRANSCRIPT WAS
REQUIRED AND IN EFFECT INSISTING THAT THE JURY SHOULD NOT HAVE BELIEVED
THE EVIDENCE, NOT ONCE DID THE PETITIONERS OR THEIR ATTORNEY IN THE
TRIAL COURT OR IN THIS COURT INDICATE IN WHAT PARTICULARS THE RECORD
MADE BY THE JUDGE WITH THE PARTICIPATION OF THE PARTIES WAS INACCURATE
OR INADEQUATE FOR THE PURPOSES OF APPEAL.    THE COURT ALSO SAYS THAT A
BYSTANDER'S BILL OF EXCEPTIONS WOULD SUFFICE.  BUT A BYSTANDER'S BILL
IS NOTHING MORE THAN A BILL OF EXCEPTIONS PREPARED BY THE PARTY
APPEALING AND CERTIFIED BY A BYSTANDER WHERE THE JUDGE REFUSES OR IS
UNABLE SO TO CERTIFY.  SEE, E.G., CARTWRIGHT V. BARNETT, 192 ARK. 206,
90 S.W.2D 485; MCKEE V. ELWELL, 67 COLO. 149, 186 P. 714.  AND, AS SAID
BY A UNANIMOUS COURT: 

"HISTORICALLY A BILL OF EXCEPTIONS DOES NOT EMBODY A VERBATIM
TRANSCRIPT OF THE EVIDENCE BUT, ON THE CONTRARY, A STATEMENT WITH
RESPECT TO THE EVIDENCE ADEQUATE TO PRESENT THE CONTENTIONS MADE IN THE
APPELLATE COURT.  SUCH A BILL MAY BE PREPARED FROM NOTES KEPT BY
COUNSEL, FROM THE JUDGE'S NOTES, FROM THE RECOLLECTION OF WITNESSES AS
TO WHAT OCCURRED AT THE TRIAL, AND, IN SHORT, FROM ANY AND ALL SOURCES
WHICH WILL CONTRIBUTE TO A VERACIOUS ACCOUNT OF THE TRIAL JUDGE'S
ACTION AND THE BASIS ON WHICH HIS RULING WAS INVOKED."  MILLER V.
UNITED STATES, 317 U.S. 192, 198. 

FURTHERMORE, IN THE MILLER CASE THE COURT EXPRESSLY OBSERVED THAT
"COUNSEL FOR PETITIONERS COULD, THEREFORE, HAVE PREPARED AND PRESENTED
TO THE TRIAL JUDGE, AS WAS HIS DUTY, A BILL OF EXCEPTIONS SO PREPARED,
AND IT WOULD THEN HAVE BECOME THE DUTY OF THE TRIAL JUDGE TO APPROVE
IT, IF ACCURATE, OR, IF NOT, TO ASSIST IN MAKING IT ACCURATELY REFLECT
THE TRIAL PROCEEDINGS."  ID., AT 199.  THE STATE OF WASHINGTON HERE DID
NOT LEAVE IT SOLELY TO THE DEFENDANT OR HIS COUNSEL TO PREPARE THE
APPELLATE RECORD IN THE FIRST INSTANCE.  UPON MOTION BY THE DEFENDANTS,
THE COURT PROCEEDED, GIVING EVERY OPPORTUNITY TO THE PARTIES TO
PARTICIPATE, TO PREPARE A "STATEMENT WITH RESPECT TO THE EVIDENCE
ADEQUATE TO PRESENT THE CONTENTIONS MADE IN THE APPELLATE COURT."  ID.,
AT 198. 

UNDER ANY STANDARD ENUNCIATED BY THIS COURT, THEN, THE MATERIALS
BEFORE THE SUPREME COURT AFFORDED AMPLE BASIS FOR PASSING UPON
PETITIONERS' CLAIMS.  THE CONCLUSION OF THE SUPREME COURT OF
WASHINGTON, LIKEWISE, WAS THAT THE RECORD BEFORE IT WAS ADEQUATE FOR
REVIEW.  ITS JUDGMENT WAS THAT THE APPEAL WAS FRIVOLOUS AND THAT NO
STENOGRAPHIC TRANSCRIPT WAS REQUIRED TO DISPOSE OF IT.  I THINK THE
COURT WAS CORRECT - AS AN EXAMINATION OF THE ALLEGED ERRORS IN THE
LIGHT OF THE RECORD SUPPLIED WILL DEMONSTRATE. 

                            II. 

THE ERRORS ALLEGED BY PETITIONERS WERE AS FOLLOWS: 

"(1)  TESTIMONY OF WITNESSES CONTRADICT EACH OTHER ON THE
IDENTIFICATION OF THE DEFENDANTS. 

"(2)  IDENTIFICATION OF CLOTHES AND WEAPONS IN ERROR, NO CONTINUENCY
OF POSSESSION SHOWN, NOR OWNERSHIP ESTABLISHED, NOR WAS OWNERSHIP OF
THESE ARTICLES BY THE DEFENDANTS PROVEN. 

"(3)  TESTIMONY OF MANY WITNESSES IN DIRECT CONFLICT WITH EACH OTHER
AND AT TIMES CONTRADICT EACH OTHER, AS TO WHAT HAPPENED AND HOW IT
HAPPENED AND BY WHOM IT WAS DONE. 

"(4)  THAT ONE WITNESS PERJURED HIMSELF REPEATEDLY AND THAT HIS
TESTIMONY WAS NOT STRICKEN OR THROWN OUT. 

"(5)  THAT THE PRESUMPTION OF INNOCENCE WAS NEVER AFFORDED THE
DEFENDANTS. 

"(6)  THAT THE TRIAL JUDGE WAS PREJUDICED AGAINST THE DEFENDANTS
THROUGHOUT THE ENTIRE TRIAL. 

"(7)  THAT THE TRIAL JUDGE SHOULD HAVE DISMISSED THE CASE AS THE
DEFENDANTS ARE NOT GUILTY AS CHARGED. 

"(8)  THAT EXHIBITS WERE ENTERED OVER OBJECTIONS THAT SHOULD NOT HAVE
BEEN ALLOWED TO BE ENTERED. 

"(9)  THAT TESTIMONY WAS ALLOWED OVER OBJECTIONS THAT SHOULD NOT HAVE
BEEN ALLOWED. 

"(10)  THAT DEFENDANT WAS CHARGED WITH ROBBING TWO SPECIFIC COMPANIES
THAT IN FACT WERE NEVER PROVEN TO HAVE BEEN ROBBED. 

"(11)  THAT THE DEFENDANT WAS FORCED TO SIT AT THE SAME TABLE WITH
THE TWO PROSECUTORS AND A POLICEMAN THAT WAS SUBPOENAED AS A WITNESS. 

"(12)  THAT AFTER AN ORDER EXCLUDING WITNESSES FROM THE COURTROOM THE
TWO MAIN WITNESSES SAT IN THE COURTROOM PRIOR TO TESTIFYING WHICH HAD A
SUBSTANTIAL BEARING ON THEIR TESTIMONY. 

"(13)  UNLESS DEFENDANT IS PROVIDED WITH A TRANSCRIPT AND STATEMENT
OF FACTS AT THE COUNTY EXPENSE, HE WILL BE UNABLE TO PROSECUTE THIS
APPEAL." 

THE COURT PLACES SPECIAL EMPHASIS ON POINTS 1, 2, 3, 4 AND 7 AS
REQUIRING CONSIDERABLY MORE THAN THE WASHINGTON SUPREME COURT HAD
BEFORE IT IF A CONSTITUTIONALLY ADEQUATE REVIEW WAS TO BE AFFORDED THE
PETITIONERS. 

HOWEVER, POINT 1 MERELY ASSERTS CONTRADICTIONS IN THE TESTIMONY ABOUT
THE IDENTIFICATION OF THE PETITIONERS.  INCONSISTENCY IN THE EVIDENCE
IS NO STRANGER TO CRIMINAL TRIALS AND IT IS THE TASK OF THE JURY TO
SORT OUT THE TESTIMONY AND DETERMINE THE FACTS AND THE GUILT OR
INNOCENCE OF THE DEFENDANTS.  A CONFLICT OF TESTIMONY "PRESENTS BUT A
MERE QUESTION OF FACT, UPON WHICH THE VERDICT OF THE JURY IS
CONCLUSIVE.  IT IS ENOUGH TO SUSTAIN THE VERDICT THAT THERE WAS
POSITIVE, DIRECT TESTIMONY TO THE EXISTENCE OF THE FACTS AS FOUND." 
CORINNE MILL, CANAL & STOCK CO. V. TOPONCE, 152 U.S. 405, 408.  SEE
GENERALLY GALLOWAY V. UNITED STATES, 319 U.S. 372; GUNNING V. COOLEY,
281 U.S. 90.  ACCORDINGLY, IF A COMPLETE TRANSCRIPT OF THE TRIAL HAD
BEEN PLACED BEFORE THE WASHINGTON SUPREME COURT, THE BARE FACT OF
INCONSISTENCY BETWEEN WITNESSES WOULD BE QUITE BESIDE THE POINT.  THE
GOVERNING QUESTION WOULD BE WHETHER THERE WAS ADEQUATE EVIDENCE TO
SUPPORT THE JURY'S CONCLUSION THAT THE PETITIONERS HAD INDEED BEEN
IDENTIFIED AND WERE GUILTY AS CHARGED.  HERE THE RECORD SUPPLIED SHOWS
THAT THE ACCOMPLICE JENNINGS IDENTIFIED THE PETITIONERS AND THIS WAS
EVEN CONFIRMED BY HIS MOTHER.  THUS NEITHER POINT 1 NOR POINT 3 WOULD
RAISE ANY PROBLEM FOR AN APPELLATE REVIEW OF THE FINDING OF GUILT BY
THE JURY. 

POINT 2 QUESTIONS THE ADMISSIBILITY OF A GUN AND A JACKET BECAUSE OF
INSUFFICIENT IDENTIFICATION.  BUT AS PETITIONERS' OWN ATTORNEY POINTED
OUT, THE GUN WAS IDENTIFIED BY THE ACCOMPLICE JENNINGS, AND PETITIONER
LORENTZEN'S JACKET WAS FOUND IN THE GET-AWAY CAR WHICH BELONGED TO
LORENTZEN AND WAS IDENTIFIED AS LOOKING LIKE THE ONE WHICH LORENTZEN
WORE DURING THE COMMISSION OF THE CRIMES.  THE TRIAL COURT RULED THAT
THE ITEMS HAD BEEN ADEQUATELY IDENTIFIED AND WERE ADMISSIBLE UNDER
WASHINGTON LAW AND THAT THE OBJECTIONS OF THE DEFENDANTS, AS TO THE
POSITIVENESS OF THE IDENTIFICATION, WENT TO THE WEIGHT, RATHER THAN TO
THE ADMISSIBILITY OF THE EVIDENCE.  THE SUPREME COURT OF WASHINGTON
AGREED.  I DOUBT SERIOUSLY THE PROPRIETY AND WISDOM OF QUESTIONING THE
JUDGMENT OF THE WASHINGTON SUPREME COURT AS TO WHAT EVIDENCE IS
NECESSARY TO SUPPORT THE ADMISSIBILITY OF AN EXHIBIT UNDER WASHINGTON
LAW. 

THE COURT APPARENTLY MAKES MUCH OF POINT 4, A GENERAL ALLEGATION OF
PERJURY, AS NOT BEING INTELLIGENTLY REVIEWABLE UPON THE RECORD MADE. 
THIS APPEARS WHOLLY UNTENABLE IN THE CIRCUMSTANCES OF THIS CASE.  HERE
THE TRIAL WAS OVER, THE EVIDENCE WAS CONCLUDED AND THE RECORD CLOSED. 
THE JURY HAD HEARD ANY ATTACK THE PETITIONERS HAD TO OFFER UPON THE
CREDIBILITY OF THE STATE'S WITNESSES AND HAD WEIGHED THE EVIDENCE AND
CONVICTED THE PETITIONERS.  A MOTION FOR A NEW TRIAL HAD BEEN DENIED. 
ON THE RECORD MADE AT THE TRIAL IT WAS THE JURY'S TASK TO DETERMINE
WHETHER ANY WITNESS WAS TELLING THE TRUTH AND TO ACCEPT OR DISCARD HIS
TESTIMONY.  THE PETITIONERS RAISED NO ISSUE OF PERJURY AT THE TRIAL OR
IN THEIR MOTION FOR A NEW TRIAL.  IN THESE CIRCUMSTANCES, IT WOULD TAKE
EVIDENCE OUTSIDE THE NORMAL REPORTER'S TRANSCRIPT TO PROVE PERJURY,
EVIDENCE WHICH THE TRIAL COURT FOUND THEY DID NOT HAVE, SEE UNITED
STATES V. JOHNSON, 327 U.S. 106, AND EVIDENCE WHICH COULD NOT BE
PRESENTED FOR THE FIRST TIME ON DIRECT APPEAL UPON THE RECORD OF A
TRIAL ALREADY MADE.  "NEW EVIDENCE WHICH IS 'MERELY CUMULATIVE OR
IMPEACHING' IS NOT, ACCORDING TO THE OFTEN-REPEATED STATEMENT OF THE
COURTS, AN ADEQUATE BASIS FOR THE GRANT OF A NEW TRIAL."  MESAROSH V.
UNITED STATES, 352 U.S. 1, 9; STATE V. BROOKS, 89 WASH.  427, 154 P.
795.  A REPORTER'S TRANSCRIPT MIGHT HELP PETITIONERS PROVE THAT PERJURY
HAD BEEN COMMITTED AT THEIR TRIAL BUT SUCH PROOF WOULD HAVE TO BE MADE,
IF AT ALL, NOT ON DIRECT APPEAL, BUT IN SOME OTHER PROCEEDING. 

POINT 4 ALSO SHARES THE DIFFICULTIES INHERENT IN POINTS 3, 8 AND 9,
ALL OF WHICH ARE BLANKET ALLEGATIONS LACKING ANY SPECIFICITY.  IT WOULD
SEEM THAT IN ORDER TO MAKE THESE GENERAL ASSERTIONS AT ALL, IT WAS
NECESSARY FOR PETITIONERS TO HAVE AT LEAST SOME SPECIFIC INSTANCES IN
MIND, BUT NEITHER THE PETITIONERS NOR THEIR ATTORNEY IN ANY WAY (EXCEPT
AS POINT 2 ILLUMINATES POINT 8) BROUGHT TO THE COURT'S ATTENTION ANY
PARTICULAR INSTANCES OF THE KIND GENERALLY ALLEGED IN THESE POINTS. 
THESE CONTENTIONS PLACED NOTHING BEFORE THE APPELLATE COURT FOR REVIEW,
SEE, E.G., SEABOARD AIR LINE R. CO. V. WATSON, 287 U.S. 86; ERDMANN V.
HENDERSON, 50 WASH. 2D 296, 311 P.2D 423; NORDLUND V. PEARSON, 91 WASH.
358, 157 P. 875, AND IF THEY ARE NOT TO BE DISREGARDED THE NET EFFECT
WOULD BE TO REQUIRE A COMPLETE TRANSCRIPT IN EVERY CASE, CONTRARY TO
THE COURT'S OWN STANDARDS AND CONTRARY TO THE RULES OF WOODS V. RHAY,
54 WASH. 2D 36, 338 P.2D 332, WHICH THE COURT IN GENERAL APPROVES. 

AS FOR POINT 7, WHICH ESSENTIALLY CHALLENGES THE SUFFICIENCY OF THE
EVIDENCE TO SUPPORT A CONVICTION, THE TRIAL COURT FOUND THE EVIDENCE
OVERWHELMING AND THE WASHINGTON SUPREME COURT CONSIDERED THE EVIDENCE
IN THE RECORD PLACED BEFORE IT AS WHOLLY ADEQUATE.  THE FINDINGS OF THE
TRIAL COURT ARE ATTACHED AS AN APPENDIX, POST, P. 509, AND IT IS
INCREDIBLE TO ME THAT THE COURT WOULD HOLD THIS STATEMENT OF THE
EVIDENCE AT THE TRIAL TO BE AN INSUFFICIENT RECORD UPON WHICH TO AFFIRM
A JURY'S CONCLUSION THAT THE PETITIONERS WERE GUILTY OF ROBBING TWO
MOTELS. 

THE WASHINGTON SUPREME COURT DETERMINED AS A MATTER OF LAW THAT POINT
10 WAS WITHOUT MERIT SINCE TO PROVE THE CRIME IN THIS CASE IT WAS
UNNECESSARY TO PROVE THE EXISTENCE OF THE CORPORATION AND THE OWNERSHIP
OF THE MONEY.  SEE NOTE 5 OF THE COURT'S OPINION, ANTE, P. 496. 
SIMILARLY, POINT 6 WAS UNTENABLE SINCE THE ONLY GROUND FOR THE
ASSERTION OF PREJUDICE WAS THAT THE TRIAL JUDGE MADE RULINGS ADVERSE TO
THEM AT THE TRIAL AND SINCE THE CHALLENGE FOR PREJUDICE WAS NEITHER
WITHIN THE TIME NOR IN THE FORM REQUIRED BY WASHINGTON LAW.  AS TO
POINT 5, THE TRIAL COURT FOUND THAT THE JURY WAS SPECIFICALLY
INSTRUCTED IN TWO DIFFERENT INSTRUCTIONS AS TO THE PRESUMPTION OF
INNOCENCE AND THE BURDEN OF PROOF, THE JURY ALSO BEING FURTHER REMINDED
BY COUNSEL OF THE PRESUMPTION OF INNOCENCE IN THE SELECTION OF THE
JURY.  THE SUPREME COURT OF WASHINGTON HELD THAT THIS WAS ENOUGH UNDER
WASHINGTON LAW. 

IT IS ALSO READILY APPARENT THAT THE TRANSCRIPT DEMANDED BY
PETITIONERS WOULD BE OF NO AID AT ALL IN DISPOSING OF POINTS 11 AND 12,
SINCE A TRANSCRIPT WOULD NOT SHOW WHO WAS OR WAS NOT IN THE COURTROOM
OR WHAT PREJUDICE, IF ANY, WAS SUFFERED BY THE DEFENDANTS BY BEING
SEATED AT THE SAME TABLE WITH THE PROSECUTOR, WHICH PHYSICAL
ARRANGEMENT IS NORMAL IN THE TRIAL COURT WHICH TRIED PETITIONERS. 

FINALLY, IT WAS FOUND BY THE TRIAL COURT THAT POINTS 1, 3, 4, 5, 6,
11 AND 12 WERE NEVER PRESENTED TO THE TRIAL COURT AT ANY STAGE OF THE
TRIAL OR JUDGMENT AND SENTENCE IN ANY FORM OR FASHION AND, THEREFORE,
AS THE SUPREME COURT OF WASHINGTON RULED, "EVEN IF THESE ASSIGNMENTS
WERE MERITORIOUS, OUR RULES WOULD PRECLUDE A CONSIDERATION OF THEM." 

I THINK THE RECORD WAS ADEQUATE IN THIS CASE.  IF IT COULD HAVE BEEN
BETTER, IT SHOULD NOT PASS WITHOUT COMMENT THAT IT IS NORMALLY THE LOT
OF THE APPELLANT TO TAKE THE INITIATIVE IN PREPARING AND PRESENTING A
RECORD FOR APPEAL.  IF PETITIONERS' COUNSEL COULD HAVE BEEN OF MORE
HELP IN PREPARING THIS RECORD - AND THIS DOES NOT APPEAR TO HAVE BEEN
TRUE HERE - THE PETITIONERS THEMSELVES MUST SHOULDER THE BLAME, SINCE
THEY REPEATEDLY STATED THAT THEY DID NOT WANT THE HELP OF APPOINTED
COUNSEL, GIVING NO REASON WHATSOEVER OTHER THAN THAT THEY DESIRED TO
REPRESENT THEMSELVES.  PETITIONERS WERE NOTIFIED PRIOR TO THE HEARING
ON THEIR MOTION FOR A TRANSCRIPT THAT TRIAL COUNSEL WAS AVAILABLE. 
THEIR IMMEDIATE RESPONSE TO THE JUDGE WAS THAT THEY DID NOT DESIRE
COUNSEL'S HELP AND THAT THEY WOULD REPRESENT THEMSELVES.  PETITIONER
DRAPER REPEATED THESE ASSERTIONS AT THE HEARING.  WHILE THE COURT GAVE
DRAPER EVERY OPPORTUNITY TO REPRESENT HIMSELF AND THE OTHER PETITIONERS
IN CONNECTION WITH MAKING THIS RECORD, HE ALSO REQUIRED PETITIONERS'
TRIAL COUNSEL TO BE PRESENT TO SUPPORT THE PETITIONERS' POSITION.  THIS
COUNSEL DID AND IT APPEARS THAT BOTH AT THE HEARING AND UPON APPEAL
WHERE HE ORALLY ARGUED, HE PLACED HIS RESOURCES AND ABILITIES AT THE
DISPOSAL OF PETITIONERS. 

                                  III. 

I AM SATISFIED THEREFORE THAT THERE HAS BEEN NO CONSTITUTIONAL
INFIRMITY IN THE REVIEW AFFORDED THESE PETITIONERS BY THE STATE OF
WASHINGTON.  THE CONTRARY RULING OF THE COURT SEVERELY LIMITS THE POWER
OF THE STATES TO AVOID UNDUE EXPENSE IN DEALING WITH CRIMINAL APPEALS. 
IT PLACES THEIR APPELLATE PROCESSES IN AN INFLEXIBLE PROCEDURAL
STRAITJACKET.  NO GREATER HARM COULD BEFALL THE PRINCIPLES OF THE
GRIFFIN AND ESKRIDGE CASES THAN TO REQUIRE THEIR INDISCRIMINATE
APPLICATION TO SITUATIONS WHERE THEY ARE INAPPOSITE.  THE PRINCIPLES OF
THESE CASES WILL NOT BE SERVED BY AN INQUISITORIAL APPROACH IN THIS
COURT TO THEIR ADMINISTRATION BY STATE COURTS.  TO ME THE CASE BEFORE
US AMPLY DEMONSTRATES THAT THE WASHINGTON COURTS HAVE BEEN FAITHFUL TO
THE MANDATE OF GRIFFIN AND ESKRIDGE AND I WOULD AFFIRM. 
  APPENDIX TO OPINION OF MR. JUSTICE WHITE. 

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE
COUNTY OF SPOKANE. 

                              NO. 16603

                     STATE OF WASHINGTON, PLAINTIFF. 

                                  V.

          RAYMOND L. LORENTZEN, ROBERT DRAPER AND JAMES D. LONG,
DEFENDANTS. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW. 

DECEMBER 12, 1960.    THE ABOVE ENTITLED CAUSE CAME REGULARLY ON FOR
HEARING ON THE 28TH DAY OF NOVEMBER, 1960, ON THE MOTION OF EACH
DEFENDANT IN FORMA PAUPERIS FOR A FREE TRANSCRIPT AND STATEMENT OF
FACTS, EACH DEFENDANT BEING PERSONALLY PRESENT IN COURT AND THOMAS F.
LYNCH APPEARING AS COURT APPOINTED COUNSEL FOR EACH DEFENDANT, AND
FRANK H. JOHNSON, DEPUTY PROSECUTING ATTORNEY APPEARING AS COUNSEL FOR
THE PLAINTIFF, AND THE COURT HAVING EXAMINED THE FILES AND AFFIDAVITS
AND HAVING HEARD THE ARGUMENT OF COUNSEL AND THE INDIVIDUAL ARGUMENT OF
THE DEFENDANT, ROBERT A. DRAPER, THE COURT BEING FULLY ADVISED IN THE
PREMISES, NOW, MAKES FINDINGS OF FACT AS FOLLOWS:

                           FINDINGS OF FACT. 

                                  I. 

THAT EACH DEFENDANT WAS JOINTLY CHARGED BY INFORMATION FILED IN THE
SUPERIOR COURT OF SPOKANE COUNTY, WITH TWO COUNTS OF ROBBERY AND SAID
DEFENDANTS WERE JOINTLY TRIED BEFORE JURY IN THE ABOVE ENTITLED COURT
ON SEPTEMBER 12TH, 13TH AND 14TH, 1960. 

                                 II. 

THAT ON SEPTEMBER 14, 1960, THE JURY RENDERED VERDICTS OF GUILTY AS
TO EACH DEFENDANT ON BOTH COUNTS OF THE INFORMATION; THAT EACH OF SAID
DEFENDANTS WERE THEREAFTER ON SEPTEMBER 30, 1960, SENTENCED TO SERVE
NOT MORE THAN 20 YEARS IN THE WASHINGTON STATE PENITENTIARY ON EACH
COUNT, SAID SENTENCES TO RUN CONSECUTIVELY. 

                       III. 

THAT THE EVIDENCE ESTABLISHED THAT THE TRAVELODGE MOTEL IS OWNED AND
OPERATED AS A MOTEL BUSINESS IN SPOKANE, WASHINGTON, BY A PARTNERSHIP
CONSISTING OF H.E. SWANSON, DR. C.M. ANDERSON, AND THE TRAVELODGE
CORPORATION, INC., A CORPORATION, WHO DO BUSINESS AS A CO-PARTNERSHIP
UNDER THE NAME OF THE TRAVELODGE MOTEL; THAT AT APPROXIMATELY 1:50
A.M., OF JULY 5, 1960, ROBERT DEURBROUCK WAS THE EMPLOYEE OF THE
TRAVELODGE MOTEL AND THE NIGHT CLERK IN CHARGE OF THE PROPERTY AND
BUSINESS OF THE TRAVELODGE MOTEL; THAT AT THAT TIME AND PLACE THE
DEFENDANTS, RAYMOND LORENTZEN AND JAMES D. LONG, ENTERED THE TRAVELODGE
MOTEL EACH ARMED WITH A LOADED GUN AND AT GUNPOINT TOOK FROM ROBERT
DEURBROUCK THE APPROXIMATE SUM OF $500.00 IN LAWFUL MONEY OF THE UNITED
STATES WHICH WAS THE PROPERTY OF AND BELONGED TO THE TRAVELODGE MOTEL;
AND THE DEFENDANT, JAMES D. LONG, THEN STRUCK ROBERT DEURBROUCK ON THE
BACK OF THE HEAD WITH THE GUN HELD BY THE SAID JAMES D. LONG, AND
INFLICTED UPON THE SAID ROBERT DEURBROUCK, A SCALP WOUND WHICH REQUIRED
FOUR STITCHES TO CLOSE. 

                                  IV. 

THAT THE DEFENDANTS, RAYMOND LORENTZEN AND JAMES D. LONG, THEN RAN TO
AN AUTOMOBILE WAITING OUTSIDE THE TRAVELODGE MOTEL IN WHICH BY
PREARRANGEMENT, THE DEFENDANT, ROBERT DRAPER, WAS DRIVING SAID
AUTOMOBILE, WHICH BELONGED TO THE DEFENDANT, RAYMOND LORENTZEN, AND IN
WHICH THE ACCOMPLICE ROBERT JENNINGS, ALSO WAITED; THAT THE DEFENDANT
ROBERT DRAPER BY PREARRANGEMENT THEN DROVE SAID AUTOMOBILE TO THE
DOWNTOWNER MOTEL WHICH IS A CORPORATION ENGAGED IN THE MOTEL BUSINESS;
THAT THE DEFENDANT JAMES LONG AND THE ACCOMPLICE ROBERT JENNINGS, THEN
ENTERED THE DOWNTOWNER MOTEL EACH ARMED WITH A LOADED GUN AND THE
ACCOMPLICE HELD UP THE NIGHT CLERK AND EMPLOYEE OF THE DOWNTOWNER
MOTEL, ONE BARRY ROFF, WHO WAS THEN IN CHARGE OF, THE BUSINESS AND
PROPERTY OF THE DOWNTOWNER MOTEL AND TOOK BY FORCE AND VIOLENCE, THE
APPROXIMATE SUM OF $1800.00 IN LAWFUL MONEY OF THE UNITED STATES, THE
PROPERTY OF THE DOWNTOWNER MOTEL, INC., A CORPORATION; THAT THE
ACCOMPLICE, ROBERT JENNINGS, THEN STRUCK THE SAID BARRY ROFF OVER THE
BACK OF THE HEAD WITH THE GUN HELD AND USED BY THE SAID ROBERT
JENNINGS; THAT THE DEFENDANT, JAMES LONG, AND THE SAID ACCOMPLICE,
ROBERT JENNINGS THEREUPON RAN TO THE WAITING AUTOMOBILE WHICH THE
DEFENDANT ROBERT DRAPER WAS DRIVING, AND IN WHICH THE DEFENDANT RAYMOND
LORENTZEN WAS WAITING. 

                           V. 

THAT AS RAYMOND LORENTZEN AND ROBERT JENNINGS RAN FROM THE DOWNTOWNER
MOTEL TO THE AFOREMENTIONED WAITING AUTOMOBILE, THEY WERE OBSERVED BY
POLICE OFFICER DONALD RAFFERTY, WHO WAS ON DUTY AS A POLICE OFFICER IN
THE DOWNTOWN AREA OF SPOKANE AT THAT TIME; THAT OFFICER RAFFERTY THEN
FOLLOWED SAID DEFENDANTS FOR A FEW BLOCKS UNTIL HE WAS ADVISED BY THE
POLICE RADIO ON HIS VEHICLE, OF THE ABOVE DESCRIBED ROBBERY OF THE
DOWNTOWNER MOTEL; THAT HE THEREUPON ATTEMPTED TO STOP THE VEHICLE IN
WHICH THE ABOVE THREE DEFENDANTS AND THE ACCOMPLICE ROBERT JENNINGS
WERE RIDING, BUT THE DEFENDANT, ROBERT DRAPER, ACCELERATED HIS VEHICLE
AND ATTEMPTED TO FLEE; THAT OFFICER RAFFERTY THEN GAVE CHASE TO THIS
VEHICLE THROUGH DOWNTOWN STREETS OF SPOKANE AT SPEEDS UP TO 60 MILES
PER HOUR AND WAS JOINED IN THIS PURSUIT BY ANOTHER POLICE CAR DRIVEN BY
OFFICER ROBERT BAILOR; THAT IN THE COURSE OF THIS PURSUIT, THE
DEFENDANTS FIRED AN UNKNOWN NUMBER OF SHOTS AT THE PURSUING POLICE
VEHICLES; THAT AT THE INTERSECTION OF THIRD AND WALL STREETS IN
SPOKANE, THE VEHICLE OCCUPIED BY THE DEFENDANTS WAS RAMMED FROM BEHIND
BY THE POLICE CAR DRIVEN BY OFFICER BAILOR WHICH CAUSED THE DEFENDANTS'
VEHICLE TO GO OUT OF CONTROL AND STOP IN A PARKING LOT ON THE NORTHEAST
CORNER OF THIRD AND WALL STREETS IN SPOKANE. 

                                  VI. 

THAT THE DEFENDANTS, JAMES LONG AND RAYMOND LORENTZEN, WERE EACH
APPREHENDED IN THIS VEHICLE WITH THE PROCEEDS OF THE AFOREMENTIONED
ROBBERIES INCLUDING ENVELOPES, RECEIPTS, AND PAPERS IDENTIFIED AS
BELONGING TO AND COMING FROM THE SAID MOTELS RECOVERED IN SAID
VEHICLE.  THE DEFENDANT JAMES D. LONG IMMEDIATELY THEREAFTER ADMITTED
HIS PARTICIPATION IN THE ABOVE DESCRIBED ROBBERIES. 

                                VII. 

THAT THE DEFENDANT, ROBERT DRAPER, AND THE ACCOMPLICE, ROBERT
JENNINGS, FLED FROM SAID VEHICLE AND RETURNED TO THE DAVENPORT HOTEL IN
SPOKANE, WASHINGTON, IN WHICH ROBERT DRAPER HAD RENTED A ROOM UNDER THE
NAME "J. RADDE;" THAT AT APPROXIMATELY NOON OF JULY 5, 1960, THE
DEFENDANT, ROBERT DRAPER, LEFT THE DAVENPORT HOTEL AND FLEW TO SEATTLE
ON A NORTHWEST AIR LINES, COMMERCIAL PLANE, WHERE HE WAS APPREHENDED
SEVERAL DAYS LATER WITH THE PASSENGER'S FLIGHT COUPON STILL IN HIS
POSSESSION; THAT SAID PASSENGER'S FLIGHT COUPON IS IN EVIDENCE AS
EXHIBIT 26 AND 26A, AND THAT THE DAVENPORT HOTEL REGISTRATION OF THE
DEFENDANTS, RAYMOND LORENTZEN, JAMES LONG, AND ROBERT DRAPER, THE
LATTER USING THE NAME OF "J. RADDE," IS IN EVIDENCE AS EXHIBITS 23, 24
AND 25. 

                   VIII. 

THAT THE ACCOMPLICE, ROBERT JENNINGS, ENTERED A PLEA OF GUILTY TO THE
AFOREMENTIONED TWO COUNTS OF ROBBERY IN THE SUPERIOR COURT OF SPOKANE
COUNTY, ON JULY 19, 1960, AND WAS SENTENCED BY THE HONORABLE LOUIS F.
BUNGE, JUDGE OF THE ABOVE ENTITLED COURT, TO NOT MORE THAN 20 YEARS
CONFINEMENT IN THE WASHINGTON STATE PENITENTIARY ON EACH COUNT, SAID
SENTENCE TO RUN CONSECUTIVELY; THAT THE SAID ROBERT JENNINGS TESTIFIED
AS A WITNESS FOR THE STATE AT THE TRIAL OF THE THREE CO-DEFENDANTS, AND
TESTIFIED THAT THE THREE DEFENDANTS HAD DRIVEN TO ROBERT JENNINGS' HOME
NEAR ADDY, WASHINGTON, APPROXIMATELY 60 MILES NORTH OF SPOKANE, IN THE
LATE AFTERNOON OF JULY 4, 1960, AND THAT THE DEFENDANTS PERSUADED HIM
TO RETURN TO SPOKANE WITH SAID DEFENDANTS; THAT SAID TESTIMONY WAS
CONFIRMED BY TESTIMONY OF MRS. GLADYS ALLEN, THE MOTHER OF THE SAID
ROBERT JENNINGS; THAT SAID ROBERT JENNINGS FURTHER TESTIFIED THAT THE
ROBBERIES OF THE TRAVELODGE MOTEL AND THE DOWNTOWNER MOTEL WERE JOINTLY
PLANNED BY THE THREE DEFENDANTS AND HIMSELF IN THE DAVENPORT HOTEL ROOM
OCCUPIED BY THE DEFENDANT ROBERT DRAPER, APPROXIMATELY SEVERAL HOURS
BEFORE THE ROBBERIES; THAT THE FOUR MEN THEN TRAVELLED THE ROUTE LATER
TAKEN IN THE ACTUAL ROBBERIES FOR THE PURPOSE OF PLANNING AND TIMING
SAID ROBBERIES. 

                       IX. 

THAT WHEN THE STATE RESTED ITS CASE IN CHIEF, THE DEFENDANTS RESTED
THEIR CASE WITHOUT TAKING THE WITNESS STAND OR OFFERING ANY EVIDENCE. 

                    X. 

THAT THE MOTIONS OF EACH DEFENDANT FOR FREE TRANSCRIPT AND STATEMENT
OF FACT ARE IDENTICAL IN SUBSTANCE AND THE COURT FINDS EACH ASSIGNMENT
OF ERROR BY EACH DEFENDANT WITHOUT MERIT AS FOLLOWS: 

"A.  THAT, AS TO ASSIGNMENTS OF ERROR ONE AND THREE, NO SHOWING
WHATEVER HAS BEEN MADE OF ANY CONFLICT OR CONTRADICTION IN THE
TESTIMONY OF ANY WITNESS AND THE COURT FINDS THAT NO SUCH MATERIAL
CONFLICT OR CONTRADICTION WAS PRESENT IN THE TRIAL. 

"B.  AS TO ASSIGNMENTS OF ERROR TWO AND EIGHT, RELATING TO
IDENTIFICATION AND ADMISSION OF EXHIBITS, EACH EXHIBIT WAS PROPERLY
IDENTIFIED AT THE TRIAL AND WAS MATERIAL AND RELEVANT TO THE ISSUES AND
THAT THE OBJECTION TO EXHIBIT TWO, THE GUN IDENTIFIED BY THE ACCOMPLICE
ROBERT JENNINGS, AS ONE USED IN THE HOLDUP, AS WELL AS THE OBJECTIONS
TO REMAINING EXHIBITS OFFERED, GOES TO THE WEIGHT THE JURY SHOULD PLACE
UPON THE EXHIBITS RATHER THAN THEIR ADMISSIBILITY. 

"C.  AS TO ASSIGNMENT OF ERROR NUMBER FOUR, NO SHOWING OF ANY PERJURY
HAS BEEN MADE BEYOND THE BARE ASSERTION BY THE DEFENDANTS OF PERJURY,
AND THE COURT FINDS THERE IS NO BASIS IN FACT THAT HAS BEEN PRESENTED
TO ESTABLISH SUCH CLAIM. 

"D.  AS TO ASSIGNMENT OF ERROR FIVE, THE COURT FINDS THAT THE JURY
WAS SPECIFICALLY INSTRUCTED IN INSTRUCTIONS NUMBER TWO AND FOUR, AS TO
THE PRESUMPTION OF INNOCENCE AND THE BURDEN OF PROOF, AND THE JURY WAS
FURTHER REMINDED BY COUNSEL IN THE SELECTION OF THE JURY OF SAID
MATTERS. 

"E.  AS TO ASSIGNMENT OF ERROR NUMBER SIX, NO SHOWING WHATEVER HAS
BEEN MADE OF ANY PREJUDICE AGAINST THE DEFENDANTS, AND NO SUCH
PREJUDICE EXISTED. 

"F.  AS TO ASSIGNMENT OF ERROR NUMBER SEVEN, THE COURT FINDS THE
EVIDENCE OFFERED BY THE STATE AGAINST THESE DEFENDANTS OVERWHELMING AS
TO THEIR GUILT OF THE CRIMES CHARGED. 

"G.  AS TO ASSIGNMENT OF ERROR NUMBER NINE, NO SHOWING HAS BEEN MADE
BY THESE DEFENDANTS AS TO ANY TESTIMONY THAT WAS IMPROPERLY ADMITTED,
AND THE COURT FINDS THAT NO SUCH TESTIMONY WAS ADMITTED. 

"H.  AS TO ASSIGNMENT OF ERROR NUMBER TEN, THE COURT FINDS THAT THE
UNCONTRADICTED EVIDENCE OF THE STATE HAS ESTABLISHED THE LEGAL NATURE
OF EACH MOTEL BUSINESS AND THE OWNERSHIP OF THE PROPERTY THAT WAS TAKEN
IN THE ROBBERIES, BY THE EMPLOYEES OF SAID BUSINESS, AND ONE OF THE
OWNERS AND CO-PARTNERS OF THE TRAVELODGE MOTEL, MR. H.E. SWANSON. 

"I.  AS TO ASSIGNMENT OF ERROR NUMBER ELEVEN; THAT ALL COUNSEL AND
DEFENDANTS AT THIS TRIAL PARTICIPATED THEREIN FROM ONE COUNSEL TABLE
ADEQUATE TO PROVIDE ALL PARTIES WITH NECESSARY WORKING ROOM, AND THAT
NO CONCEIVABLE PREJUDICES RESULTED TO THESE DEFENDANTS FROM SUCH FACT,
AND THAT NO DEMONSTRATION BY ANY PARTICIPANT IN THE TRIAL WAS EVIDENT
TO THE COURT OR EVER BROUGHT TO THE ATTENTION OF THE COURT DURING ANY
TIME OF THE TRIAL. 

"J.  AS TO ASSIGNMENT OF ERROR NUMBER TWELVE, THE COURT FINDS THAT
ITS ATTENTION WAS NEVER CALLED TO THE PRESENCE OF ANY WITNESSES IN THE
COURTROOM AFTER THE RULE OF EXCLUSION HAD BEEN INVOKED, AND TO THE
COURT'S KNOWLEDGE, NO SUCH WITNESSES WERE PRESENT IN COURT EXCEPT WHEN
THEY TESTIFIED AND THAT, IF SUCH PRESENCE WERE ESTABLISHED, NO SHOWING
OF PREJUDICE TO THE DEFENDANTS HAS BEEN MADE." 

        XI. 

THE COURT FURTHER FINDS THAT ASSIGNMENTS OF ERROR, ONE, THREE, FOUR,
FIVE, SIX, ELEVEN AND TWELVE WERE NEVER PRESENTED TO THE COURT AT ANY
STAGE OF THE TRIAL OR JUDGMENT AND SENTENCE IN ANY FORM OR FASHION. 

FROM THE FOREGOING FINDINGS OF FACT, THE COURT MAKES THE FOLLOWING:

             CONCLUSIONS OF LAW. 

            I. 

THAT THE CLAIMS OF ERROR OF EACH DEFENDANT ARE FRIVOLOUS, GROUNDLESS
AND WITHOUT ANY BASIS IN FACT OR LAW. 

                                   II. 

THAT THE DEFENDANTS DO NOT ALLEGE OR SUBSTANTIATE ANY FACTUAL BASIS
FOR THEIR ASSIGNMENTS OF ERROR BEYOND THE BARE ASSERTION OF SUCH
CLAIMS. 

                                   III. 

THAT THE ASSIGNMENTS OF ERROR AS SET OUT BY EACH DEFENDANT ARE
PATENTLY FRIVOLOUS; THAT THE GUILT OF EACH DEFENDANT AS TO EACH COUNT
OF ROBBERY WAS ESTABLISHED BY OVERWHELMING EVIDENCE, AND THAT
ACCORDINGLY THE FURNISHING OF A STATEMENT OF FACTS WOULD RESULT IN A
WASTE OF PUBLIC FUNDS. 

DONE IN OPEN COURT THIS 12TH DAY OF DECEMBER, 1960. 

               HUGH E. EVANS:

                 JUDGE. 
..END :









GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL UNION NO. 89 V. RISS &
CO. 372 U.S. 517 


NO. 180.  ARGUED FEBRUARY 19, 1963.  - DECIDED MARCH 18, 1963.  - 298
F.2D 341, REVERSED AND CAUSE REMANDED. 


PREDICATING JURISDICTION ON SEC. 301 OF THE LABOR MANAGEMENT RELATIONS
ACT, 1947, PETITIONERS, A UNION AND SIX OF ITS MEMBERS, SUED IN A
FEDERAL DISTRICT COURT TO COMPEL RESPONDENT TO COMPLY WITH A RULING OF
THE JOINT AREA CARTAGE COMMITTEE DIRECTING THAT THE INDIVIDUAL
PETITIONERS BE REINSTATED WITH FULL SENIORITY AND BACK PAY.  THEY
ALLEGED THAT THE COMMITTEE'S RULING HAD BEEN HANDED DOWN IN ACCORDANCE
WITH GRIEVANCE PROCEDURES ESTABLISHED IN A COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE UNION AND THE EMPLOYER AND THAT IT WAS FINAL AND
BINDING.  AFTER FILING ITS ANSWER, RESPONDENT MOVED TO DISMISS THE
COMPLAINT FOR WANT OF JURISDICTION.  THE DISTRICT COURT GRANTED THE
MOTION ON THE PLEADINGS AS SUPPLEMENTED AT PRETRIAL CONFERENCE BY
EXCERPTS FROM THE LOCAL CARTAGE AGREEMENT BETWEEN THE UNION AND THE
EMPLOYER.  HELD:  IT ERRED IN DOING SO, SINCE THE DISTRICT COURT WOULD
HAVE JURISDICTION UNDER SEC. 301, IF THE AWARD OF THE JOINT AREA
CARTAGE COMMITTEE IS FINAL AND BINDING UNDER THE COLLECTIVE BARGAINING
AGREEMENT, AS PETITIONERS ALLEGE; AND THIS ALLEGATION CANNOT BE
REJECTED ON THE BASIS MERELY OF WHAT THE PRESENT RECORD SHOWS.  PP. 517
520. 

GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL UNION NO. 89, ET AL. V.
RISS & COMPANY, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

PETITIONERS ARE A UNION AND SIX OF ITS MEMBERS EMPLOYED BY THE
RESPONDENT INTERSTATE MOTOR FREIGHT COMMON CARRIER.  THE PRESENT ACTION
WAS BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF KENTUCKY, AND JURISDICTION WAS PREDICATED ON SEC. 301 OF
THE LABOR MANAGEMENT RELATIONS ACT, 1947, 29 U.S.C. SEC. 185.  IN THEIR
COMPLAINT, PETITIONERS ALLEGED THAT THE RESPONDENT HAD REFUSED TO
COMPLY WITH A RULING OF THE JOINT AREA CARTAGE COMMITTEE, DIRECTING
THAT THE INDIVIDUAL PETITIONERS BE REINSTATED WITH FULL SENIORITY AND
BACK PAY.  THE COMMITTEE'S RULING WAS ASSERTED TO HAVE BEEN HANDED DOWN
IN ACCORDANCE WITH THE GRIEVANCE PROCEDURES ESTABLISHED IN THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE UNION AND THE EMPLOYER. 
THE RELIEF DEMANDED IN THE COMPLAINT INCLUDED THE REINSTATEMENT OF THE
INDIVIDUAL PETITIONERS, WITH FULL BACK PAY AND FRINGE BENEFITS TO THE
TIME OF REINSTATEMENT. 

RESPONDENT, AFTER FILING ITS ANSWER, MOVED TO DISMISS THE COMPLAINT. 
THE DISTRICT COURT GRANTED THE MOTION ON THE PLEADINGS AS SUPPLEMENTED
AT PRETRIAL CONFERENCE BY EXCERPTS FROM THE LOCAL CARTAGE AGREEMENT
BETWEEN THE UNION AND THE EMPLOYER.  THE DISTRICT COURT'S GROUND FOR
DISMISSING THE COMPLAINT WAS WANT OF FEDERAL JURISDICTION, A RESULT
DEEMED COMPELLED BY OUR DECISION IN ASSOCIATION OF WESTINGHOUSE
SALARIED EMPLOYEES V. WESTINGHOUSE ELEC.  CORP., 348 U.S. 437.  THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED, 298 F.2D 341, BUT
ADDED TWO MORE GROUNDS IN SUPPORT OF THE ORDER OF DISMISSAL: (1) THAT
THE DETERMINATION OF THE JOINT AREA CARTAGE COMMITTEE WAS NOT AN
ARBITRATION AWARD AND SO NOT ENFORCEABLE UNDER SEC. 301; (2) THAT ON
THE MERITS PETITIONERS WERE NOT ENTITLED TO THE RELIEF ORDERED BY THE
JOINT AREA CARTAGE COMMITTEE.  WE GRANTED CERTIORARI, 371 U.S. 810.  WE
REVERSE AND REMAND TO THE DISTRICT COURT FOR TRIAL. 

ACCORDING TO THE ALLEGATIONS OF THE COMPLAINT, THE SIX INDIVIDUAL
PETITIONERS WERE DISCHARGED BECAUSE THEY CHOSE TO RESPECT AND DID
RESPECT A PICKET LINE ESTABLISHED BY ANOTHER UNION AT A PLACE OF
BUSINESS OF RESPONDENT.  CONTENDING THAT SUCH DISCHARGE VIOLATED
ARTICLE IX OF THE LOCAL CARTAGE AGREEMENT, WHICH PROVIDES IN PART THAT
"IT SHALL NOT BE CAUSE FOR DISCHARGE IF ANY EMPLOYEE OR EMPLOYEES
REFUSE TO GO THROUGH THE PICKET LINE OF A UNION  ...  ," PETITIONERS
INVOKED THE GRIEVANCE MACHINERY SET UP BY THE AGREEMENT, AND PROCESSED
THEIR GRIEVANCES THROUGH THE PROVIDED CHANNELS CULMINATING IN THE JOINT
AREA CARTAGE COMMITTEE'S DETERMINATION.  ARTICLE VIII, SEC. 1(E), OF
THE AGREEMENT PROVIDES:  "IT IS AGREED THAT ALL MATTERS PERTAINING TO
THE INTERPRETATION OF ANY PROVISIONS OF THIS CONTRACT SHALL BE
REFERRED, AT THE REQUEST OF ANY PARTY AT ANY TIME, FOR FINAL DECISION
TO THE JOINT AREA CARTAGE COMMITTEE  ...  ." 

IF, AS PETITIONERS ALLEGE, THE AWARD OF THE JOINT AREA CARTAGE
COMMITTEE IS UNDER THE COLLECTIVE BARGAINING AGREEMENT FINAL AND
BINDING, THE DISTRICT COURT HAS JURISDICTION UNDER SEC. 301 TO ENFORCE
IT, NOTWITHSTANDING OUR WESTINGHOUSE DECISION.  SEE TEXTILE WORKERS V.
LINCOLN MILLS, 353 U.S. 448, 456, N. 6; UNITED STEELWORKERS V. PULLMAN
STANDARD CAR MFG. CO., 241 F.2D 547, 551-552 (C.A. 3D CIR. 1957). 
PLAINLY, THIS ALLEGATION CANNOT BE REJECTED ON THE BASIS MERELY OF WHAT
THE PRESENT RECORD SHOWS.  IT IS NOT ENOUGH THAT THE WORD "ARBITRATION"
DOES NOT APPEAR IN THE COLLECTIVE BARGAINING AGREEMENT, FOR WE HAVE
HELD THAT THE POLICY OF THE LABOR ACT "CAN BE EFFECTUATED ONLY IF THE
MEANS CHOSEN BY THE PARTIES FOR SETTLEMENT OF THEIR DIFFERENCES UNDER A
COLLECTIVE BARGAINING AGREEMENT IS GIVEN FULL PLAY."  UNITED
STEELWORKERS V. AMERICAN MFG. CO., 363 U.S. 564, 566; CF. RETAIL CLERKS
V. LION DRY GOODS, INC., 369 U.S. 17.  THUS, IF THE AWARD AT BAR IS THE
PARTIES' CHOSEN INSTRUMENT FOR THE DEFINITIVE SETTLEMENT OF GRIEVANCES
UNDER THE AGREEMENT, IT IS ENFORCEABLE UNDER SEC. 301.  AND IF THE
JOINT AREA CARTAGE COMMITTEE'S AWARD IS THUS ENFORCEABLE, IT IS OF
COURSE NOT OPEN TO THE COURTS TO REWEIGH THE MERITS OF THE GRIEVANCE. 
AMERICAN MFG. CO., SUPRA, AT 567-568. 

OF COURSE, IF IT SHOULD BE DECIDED AFTER TRIAL THAT THE GRIEVANCE
AWARD INVOLVED HERE IS NOT FINAL AND BINDING UNDER THE COLLECTIVE
BARGAINING AGREEMENT, NO ACTION UNDER SEC.  301 TO ENFORCE IT WILL
LIE.  THEN, SHOULD PETITIONERS SEEK TO PURSUE THE ACTION AS A SEC. 301
SUIT FOR BREACH OF CONTRACT, THERE MAY HAVE TO BE CONSIDERED QUESTIONS
UNRESOLVED BY OUR PRIOR DECISIONS.  WE NEED NOT REACH THOSE QUESTIONS
HERE.  BUT SINCE THE COURTS BELOW PLACED SO MUCH RELIANCE ON THE
WESTINGHOUSE DECISION, WE DEEM IT APPROPRIATE TO REPEAT OUR CONCLUSION
IN SMITH V. EVENING NEWS ASSN., 371 U.S. 195, 199, THAT "SUBSEQUENT
DECISIONS  ...  HAVE REMOVED THE UNDERPINNINGS OF WESTINGHOUSE AND ITS
HOLDING IS NO LONGER AUTHORITATIVE AS A PRECEDENT."  REVERSED AND
REMANDED. 
..END :







CRAIG V. BENNETT 372 U.S. 521 


NO. 841, MISC.  DECIDED MARCH 18, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


CRAIG V. BENNETT, WARDEN. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















COLE V. MANNING 372 U.S. 521 


NO. 610, MISC.  DECIDED MARCH 18, 1963.  - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  240 S.C. 260, 125
S.E.2D 621. 


COLE ET AL. V. MANNING, PENITENTIARY SUPERINTENDENT. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















FIELDS V. SOUTH CAROLINA 372 U.S. 522 


NO. 399.  DECIDED MARCH 18, 1963.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  240 S.C. 366, 367, 368,
369, 370, 371, 372, 126 S.E.2D 6, 7, 8, 9. 


FIELDS ET AL. V. SOUTH CAROLINA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH
CAROLINA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
SUPREME COURT OF SOUTH CAROLINA IS VACATED AND THE CASE IS REMANDED FOR
CONSIDERATION IN LIGHT OF EDWARDS V. SOUTH CAROLINA, 372 U.S. 229. 

MR. JUSTICE CLARK DISSENTS FOR THE REASONS EXPRESSED IN HIS
DISSENTING OPINION IN EDWARDS V. SOUTH CAROLINA, SUPRA.
..END :











LOCAL LODGE NO. 1836, DISTRICT 38, INTERNATIONAL ASSOCIATION OF
MACHINISTS, AFL-CIO V. LOCAL NO. 1505, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO 372 U.S. 523 


NO. 419.  DECIDED MARCH 18, 1963.  - REPORTED BELOW:  304 F.2D 365. 


JUDGMENT VACATED AND CASE REMANDED TO DISTRICT COURT WITH DIRECTIONS
TO DISMISS THE CAUSE AS MOOT. 

LOCAL LODGE NO. 1836, DISTRICT 38, INTERNATIONAL ASSOCIATION OF
MACHINISTS, AFL-CIO, ET AL V. LOCAL NO. 1505, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

PER CURIAM. 

THE MOTION TO VACATE IS GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT IS VACATED AND THE CASE IS
REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS WITH DIRECTIONS TO DISMISS THE CAUSE AS MOOT.  BLACK V.
AMEN, 355 U.S. 600. 
..END :






BIRMINGHAM ICE & COLD STORAGE CO. V. SOUTHERN RAILWAY CO. 372 U.S. 524 


NO. 425.  DECIDED MARCH 18, 1963.  - APPEAL DISMISSED.  - REPORTED
BELOW:  205 F. SUPP. 640. 


BIRMINGHAM ICE & COLD STORAGE CO. ET AL. V. SOUTHERN RAILWAY CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














JEFFERSON WAREHOUSE & COLD STORAGE CO. V. UNITED STATES 372 U.S. 525 


NO. 617.  DECIDED MARCH 18, 1963.  - 205 F. SUPP. 640, AFFIRMED. 


JEFFERSON WAREHOUSE & COLD STORAGE CO. ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















WALKER V. UNITED STATES 372 U.S. 526 


NO. 657.  DECIDED MARCH 18, 1963.  - 208 F. SUPP. 388, AFFIRMED. 


WALKER V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :















ROBINSON V. UNITED STATES 372 U.S. 527 


NO. 425, MISC.  DECIDED MARCH 18, 1963.  - REPORTED BELOW:  304 F.2D
805. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED WITH
DIRECTIONS TO ALLOW APPEAL IN FORMA PAUPERIS. 

ROBINSON V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  ON WRIT OF CERTIORARI THE JUDGMENT
IS VACATED AND, IN ACCORDANCE WITH THE SUGGESTION OF THE SOLICITOR
GENERAL, THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT WITH DIRECTIONS TO ALLOW THE APPEAL IN FORMA
PAUPERIS.  COPPEDGE V. UNITED STATES, 369 U.S. 438. 
..END :








WHITE MOTOR CO. V. UNITED STATES 372 U.S. 253 


NO. 54.  ARGUED JANUARY 14-15, 1963.  - DECIDED MARCH 4, 1963.  - 194 F.
SUPP. 562, REVERSED. 


THE UNITED STATES BROUGHT THIS CIVIL SUIT TO RESTRAIN ALLEGED
VIOLATIONS OF THE SHERMAN ACT BY APPELLANT, A MANUFACTURER OF TRUCKS,
AND MOVED FOR A SUMMARY JUDGMENT, CONTENDING THAT APPELLANT'S FRANCHISE
CONTRACTS CONSTITUTED PER SE VIOLATIONS OF SECS. 1 AND 3.  SUCH
CONTRACTS RESTRICTED THE GEOGRAPHIC AREAS WITHIN WHICH DISTRIBUTORS AND
DEALERS WERE PERMITTED TO SELL TRUCKS AND PARTS, RESTRICTED THE PERSONS
TO WHOM DISTRIBUTORS AND DEALERS WERE PERMITTED TO SELL TRUCKS FOR
RESALE, PRECLUDED DISTRIBUTORS AND DEALERS FROM SELLING TRUCKS TO ANY
FEDERAL OR STATE GOVERNMENT OR SUBDIVISION THEREOF AND OTHER LARGE
CUSTOMERS WITHOUT PERMISSION OF APPELLANT, FIXED THE RESALE PRICE FOR
TRUCKS AND PARTS SOLD BY DISTRIBUTORS TO DEALERS FOR RETAIL SALE, AND
FIXED THE RETAIL PRICE OF PARTS AND ACCESSORIES SOLD BY DISTRIBUTORS
AND DEALERS TO CERTAIN DESIGNATED CUSTOMERS.  APPELLANT DID NOT FILE
ANY AFFIDAVIT DENYING THE GOVERNMENT'S ALLEGATIONS; BUT IT DID FILE A
BRIEF CONTAINING ALLEGATIONS OF FACT, DENYING THAT ITS AGREEMENTS WERE
ILLEGAL, AND CONTENDING THAT IT SHOULD BE ALLOWED TO PRESENT, AT TRIAL,
EVIDENCE OF THE REASONABLENESS OF ITS CONTRACTS WHEN CONSIDERED IN
THEIR OWN UNIQUE BUSINESS AND ECONOMIC CONTEXT.  THE DISTRICT COURT
GRANTED SUMMARY JUDGMENT FOR THE GOVERNMENT.  APPELLANT APPEALED
DIRECTLY TO THIS COURT FROM ALL BUT THE PRICE-FIXING ASPECTS OF THE
JUDGMENT.  HELD:  APART FROM THE PRICE-FIXING ASPECTS OF THE CASE,
SUMMARY JUDGMENT WAS IMPROPERLY GRANTED, AND THE LEGALITY OF THE
TERRITORIAL AND CUSTOMER LIMITATIONS OF APPELLANT'S FRANCHISE CONTRACTS
SHOULD BE DETERMINED ONLY AFTER A TRAIL.  PP. 254-264. 

(A)  SUMMARY JUDGMENTS HAVE A PLACE IN THE ANTITRUST FIELD; BUT THEY
ARE NOT APPROPRIATE "WHERE MOTIVE AND INTENT PLAY LEADING ROLES." 
POLLER V. COLUMBIA BROADCASTING SYSTEM, 368 U.S. 464.  PP. 259-261. 

(B)  THIS IS THE FIRST CASE INVOLVING A TERRITORIAL RESTRICTION IN A
VERTICAL ARRANGEMENT; AND THIS COURT KNOWS TOO LITTLE OF THE ACTUAL
IMPACT OF THAT RESTRICTION AND THE ONE RESPECTING CUSTOMERS TO REACH A
CONCLUSION ON THE BARE BONES OF THE DOCUMENTARY EVIDENCE BEFORE IT.
PP. 261-264. 

WHITE MOTOR CO. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL SUIT UNDER THE ANTITRUST LAWS THAT WAS DECIDED BELOW
ON A MOTION FOR SUMMARY JUDGMENT.  RULE 56 OF THE RULES OF CIVIL
PROCEDURE AT THE TIME OF THE HEARING BELOW PERMITTED SUMMARY JUDGMENT
TO BE ENTERED "IF THE PLEADINGS, DEPOSITIONS, AND ADMISSIONS ON FILE,
TOGETHER WITH THE AFFIDAVITS, IF ANY, SHOW THAT THERE IS NO GENUINE
ISSUE AS TO ANY MATERIAL FACT AND THAT THE MOVING PARTY IS ENTITLED TO
A JUDGMENT AS A MATTER OF LAW."  SINCE THAT TIME, AN AMENDMENT TO RULE
56, WHICH IS INCLUDED IN PROPOSED CHANGES SUBMITTED TO CONGRESS
PURSUANT TO 28 U.S.C. SEC. 2072, WOULD ADD THE FOLLOWING REQUIREMENT: 

"WHEN A MOTION FOR SUMMARY JUDGMENT IS MADE AND SUPPORTED AS PROVIDED
IN THIS RULE, AN ADVERSE PARTY MAY NOT REST UPON THE MERE ALLEGATIONS
OR DENIALS OF HIS PLEADING, BUT HIS RESPONSE, BY AFFIDAVITS OR AS
OTHERWISE PROVIDED IN THIS RULE, MUST SET FORTH SPECIFIC FACTS SHOWING
THAT THERE IS A GENUINE ISSUE FOR TRIAL.  IF HE DOES NOT SO RESPOND,
SUMMARY JUDGMENT, IF APPROPRIATE, SHALL BE ENTERED AGAINST HIM." 

BUT NO SUCH REQUIREMENT WAS PRESENT WHEN THE PRESENT CASE WAS
DECIDED; AND APPELLANT, THOUGH STRENUOUSLY OPPOSING SUMMARY JUDGMENT
AND DEMANDING A TRIAL, SUBMITTED NO SUCH AFFIDAVITS.  IT DID, HOWEVER,
IN ITS BRIEF IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT, MAKE
ALLEGATIONS CONCERNING FACTUAL MATTERS WHICH THE DISTRICT COURT THOUGHT
WERE PROPERLY RAISED AND WHICH WE THINK WERE RELEVANT TO A DECISION ON
THE MERITS. 

APPELLANT MANUFACTURES TRUCKS AND SELLS THEM (AND PARTS) TO
DISTRIBUTORS, (FN1) TO DEALERS, AND TO VARIOUS LARGE USERS.  BOTH THE
DISTRIBUTORS AND DEALERS SELL TRUCKS (AND PARTS) TO USERS.  MOREOVER,
SOME DISTRIBUTORS RESELL TRUCKS (AND PARTS) TO DEALERS, SELECTED WITH
APPELLANT'S CONSENT.  ALL OF THE DEALERS SELL TRUCKS (AND PARTS) ONLY
TO USERS.  THE PRINCIPAL PRACTICES CHARGED AS VIOLATIONS OF SECS. 1 AND
3 OF THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C. SECS. 1, 3, CONCERN
LIMITATIONS OR RESTRICTIONS ON THE TERRITORIES WITHIN WHICH
DISTRIBUTORS OR DEALERS MAY SELL AND LIMITATIONS OR RESTRICTIONS ON THE
PERSONS OR CLASSES OF PERSONS TO WHOM THEY MAY SELL.  TYPICAL OF THE
TERRITORIAL CLAUSE IS THE FOLLOWING: 

"DISTRIBUTOR IS HEREBY GRANTED THE EXCLUSIVE RIGHT, EXCEPT AS
HEREINAFTER PROVIDED, TO SELL DURING THE LIFE OF THIS AGREEMENT, IN THE
TERRITORY DESCRIBED BELOW, WHITE AND AUTOCAR TRUCKS PURCHASED FROM
COMPANY HEREUNDER. 

"STATE OF CALIFORNIA:  TERRITORY TO CONSIST OF ALL OF SONOMA COUNTY,
SOUTH OF A LINE STARTING AT THE WESTERN BOUNDARY, OR PACIFIC COAST,
PASSING THROUGH THE CITY OF BODEGA, AND EXTENDING DUE EAST TO THE EAST
BOUNDARY LINE OF SONOMA COUNTY, WITH THE EXCEPTION OF THE SALE OF FIRE
TRUCK CHASSIS TO THE STATE OF CALIFORNIA AND ALL POLITICAL SUBDIVISIONS
THEREOF. 

"DISTRIBUTOR AGREES TO DEVELOP THE AFOREMENTIONED TERRITORY TO THE
SATISFACTION OF COMPANY, AND NOT TO SELL ANY TRUCKS PURCHASED HEREUNDER
EXCEPT IN ACCORDANCE WITH THIS AGREEMENT, AND NOT TO SELL SUCH TRUCKS
EXCEPT TO INDIVIDUALS, FIRMS, OR CORPORATIONS HAVING A PLACE OF
BUSINESS AND/OR PURCHASING HEADQUARTERS IN SAID TERRITORY." 

TYPICAL OF THE CUSTOMER CLAUSE IS THE FOLLOWING: 

"DISTRIBUTOR FURTHER AGREES NOT TO SELL NOR TO AUTHORIZE HIS DEALERS
TO SELL SUCH TRUCKS TO ANY FEDERAL OR STATE GOVERNMENT OR ANY
DEPARTMENT OR POLITICAL SUBDIVISION THEREOF, UNLESS THE RIGHT TO DO SO
IS SPECIFICALLY GRANTED BY COMPANY IN WRITING." 

THESE PROVISIONS, APPLICABLE TO DISTRIBUTORS AND DEALERS ALIKE, ARE
CLAIMED BY APPELLEE TO BE PER SE VIOLATIONS OF THE SHERMAN ACT.  (FN2)
THE DISTRICT COURT ADOPTED THAT VIEW AND GRANTED SUMMARY JUDGMENT
ACCORDINGLY.  194 F. SUPP. 562.  WE NOTED PROBABLE JURISDICTION.  369
U.S. 858.  SEE 15 U.S.C. SEC. 29. 

APPELLANT, IN ARGUING FOR A TRIAL OF THE CASE ON THE MERITS, MADE THE
FOLLOWING REPRESENTATIONS TO THE DISTRICT COURT:  THE TERRITORIAL
CLAUSES ARE NECESSARY IN ORDER FOR APPELLANT TO COMPETE WITH THOSE WHO
MAKE OTHER COMPETITORY KINDS OF TRUCKS; APPELLANT COULD THEORETICALLY
HAVE ITS OWN RETAIL OUTLETS THROUGHOUT THE COUNTRY AND SELL TO USERS
DIRECTLY; THAT METHOD, HOWEVER, IS NOT FEASIBLE AS IT ENTAILS A COSTLY
AND EXTENSIVE SALES ORGANIZATION; THE ONLY FEASIBLE METHOD IS THE
DISTRIBUTOR OR DEALER SYSTEM; FOR THAT SYSTEM TO BE EFFECTIVE AGAINST
THE EXISTING COMPETITION OF THE LARGER COMPANIES, A DISTRIBUTOR OR
DEALER MUST MAKE VIGOROUS AND INTENSIVE EFFORTS IN A RESTRICTED
TERRITORY, AND IF HE IS TO BE HELD RESPONSIBLE FOR ENERGETIC
PERFORMANCE, IT IS FAIR, REASONABLE, AND NECESSARY THAT APPELLANT
PROTECT HIM AGAINST INVASIONS OF HIS TERRITORY BY OTHER DISTRIBUTORS OR
DEALERS OF APPELLANT; THAT APPELLANT IN ORDER TO OBTAIN MAXIMUM SALES
IN A GIVEN AREA MUST INSIST THAT ITS DISTRIBUTORS AND DEALERS
CONCENTRATE ON TRYING TO TAKE SALES AWAY FROM OTHER COMPETING TRUCK
MANUFACTURERS RATHER THAN FROM EACH OTHER.  APPELLANT WENT ON TO SAY: 

"THE PLAIN FACT IS, AS WE EXPECT TO BE ABLE TO SHOW TO THE
SATISFACTION OF THE COURT AT A TRIAL OF THIS CASE ON THE MERITS, THAT
THE OUTLAWING OF EXCLUSIVE DISTRIBUTORSHIPS AND DEALERSHIPS IN
SPECIFIED TERRITORIES WOULD REDUCE COMPETITION IN THE SALE OF MOTOR
TRUCKS AND NOT FOSTER SUCH COMPETITION." 

AS TO THE CUSTOMER CLAUSES, APPELLANT REPRESENTED TO THE DISTRICT
COURT THAT ONE OF THEIR PURPOSES WAS TO ASSURE APPELLANT "THAT
'NATIONAL ACCOUNTS,' 'FLEET ACCOUNTS' AND FEDERAL AND STATE GOVERNMENTS
AND DEPARTMENTS AND POLITICAL SUBDIVISIONS THEREOF, WHICH ARE CLASSES
OF CUSTOMERS WITH RESPECT TO WHICH THE DEFENDANT IS IN ESPECIALLY
SEVERE COMPETITION WITH THE MANUFACTURERS OF OTHER MAKES OF TRUCKS AND
WHICH ARE LIKELY TO HAVE A CONTINUING VOLUME OF ORDERS TO PLACE, SHALL
NOT BE DEPRIVED OF THEIR APPROPRIATE DISCOUNTS ON THEIR PURCHASES OF
REPAIR PARTS AND ACCESSORIES FROM ANY DISTRIBUTOR OR DEALER, WITH THE
RESULT OF BECOMING DISCONTENTED WITH THE WHITE MOTOR COMPANY AND THE
TREATMENT THEY RECEIVE WITH REFERENCE TO THE PRICES OF REPAIR PARTS AND
ACCESSORIES FOR WHITE TRUCKS." 

THE AGREEMENTS FIXING PRICES OF PARTS AND ACCESSORIES TO THESE
CUSTOMERS (FN3) WERE, ACCORDING TO APPELLANT, ONLY AN ADJUNCT TO THE
CUSTOMER RESTRICTION CLAUSES AND AMOUNTED MERELY TO AN AGREEMENT TO
GIVE THESE CLASSES OF CUSTOMERS THEIR PROPER DISCOUNTS.  "IN A WAY THIS
AFFECTS THE PRICES WHICH THESE CLASSES OF CUSTOMERS HAVE TO PAY FOR
SUCH PARTS AND ACCESSORIES, BUT IT AFFECTS, AS A PRACTICAL MATTER, ONLY
SPARE AND REPAIR PARTS AND ACCESSORIES AND IT AFFECTS ONLY THE
DISCOUNTS TO BE GIVEN TO THESE PARTICULAR CLASSES OF CUSTOMERS.  THE
PROVISIONS ARE NECESSARY IF THE DEFENDANT'S FUTURE SALES TO 'NATIONAL
ACCOUNTS,' 'FLEET ACCOUNTS' AND FEDERAL AND STATE GOVERNMENTS AND
DEPARTMENTS AND POLITICAL SUBDIVISIONS THEREOF, IN COMPETITION WITH
OTHER TRUCK MANUFACTURERS, ARE NOT TO BE SERIOUSLY JEOPARDIZED." 

WHITE ALSO ARGUED BELOW: 

"ON PRINCIPLE, THERE IS NO REASON WHATSOEVER WHY A MANUFACTURER
SHOULD NOT HAVE ONE DISTRIBUTOR WHO IS LIMITED TO SELLING TO ONE CLASS
OF CUSTOMERS AND ANOTHER DISTRIBUTOR WHO IS LIMITED TO SELLING TO
ANOTHER CLASS OF CUSTOMERS OR WHY A DISTRIBUTOR SHOULD NOT BE LIMITED
TO ONE CLASS OF CUSTOMERS AND THE MANUFACTURER RESERVE THE RIGHT TO
SELL TO ANOTHER CLASS OF CUSTOMERS.  THERE ARE MANY CIRCUMSTANCES UNDER
WHICH THERE COULD BE NO POSSIBLE OBJECTION TO LIMITING THE CLASS OF
CUSTOMERS TO WHICH DISTRIBUTORS OR DEALERS RESELL GOODS, AND THERE ARE
MANY REASONS WHY IT WOULD BE REASONABLE AND FOR THE PUBLIC INTEREST
THAT DISTRIBUTORS OR DEALERS SHOULD BE LIMITED TO RESELLING TO CERTAIN
CLASSES OF CUSTOMERS. 

"IN THE INSTANT CASE, IT IS BOTH REASONABLE AND NECESSARY THAT THE
DISTRIBUTORS (EXCEPT FOR SALES TO APPROVED DEALERS) AND DIRECT DEALERS
AND DEALERS BE LIMITED TO SELLING TO THE PURCHASING PUBLIC, IN ORDER
THAT THEY MAY BE COMPELLED TO DEVELOP PROPERLY THE FULL POTENTIAL OF
SALES OF WHITE TRUCKS IN THEIR RESPECTIVE TERRITORIES, AND TO ASSURE
THE WHITE MOTOR COMPANY THAT THE PERSONS SELLING WHITE TRUCKS TO THE
PURCHASING PUBLIC SHALL BE FAIR AND HONEST, TO THE END OF INCREASING
AND PERPETUATING SALES OF WHITE TRUCKS IN COMPETITION WITH OTHER MAKES
OF TRUCKS; AND IT IS REASONABLE AND NECESSARY THAT THE WHITE MOTOR
COMPANY RESERVE TO ITSELF THE EXCLUSIVE RIGHT TO SELL WHITE TRUCKS TO
FEDERAL AND STATE GOVERNMENTS OR ANY DEPARTMENT OR POLITICAL
SUBDIVISION THEREOF RATHER THAN TO SELL SUCH TRUCKS TO SUCH GOVERNMENTS
OR DEPARTMENTS OR POLITICAL SUBDIVISIONS THEREOF THROUGH DISTRIBUTORS
OR DEALERS, AND THE WHITE MOTOR COMPANY SHOULD HAVE A PERFECT RIGHT SO
TO DO. 

"THEREFORE, BASED BOTH ON THE DECISIONS OF THE FEDERAL COURTS AND ON
PRINCIPLE, THE LIMITATIONS ON THE CLASSES OF CUSTOMERS TO SHOM
DISTRIBUTORS OR DEALERS MAY SELL WHITE TRUCKS ARE NOT ONLY NOT ILLEGAL
PER SE, AS THE PLAINTIFF MUST PROVE TO SUCCEED ON ITS MOTION FOR
SUMMARY JUDGMENT, BUT THESE LIMITATIONS HAVE PROPER PURPOSES AND
EFFECTS AND ARE FAIR AND REASONABLE AND NOT VIOLATIVE OF THE ANTITRUST
LAWS AS BEING IN UNREASONABLE RESTRAINT OF COMPETITION OR TRADE AND
COMMERCE." 

IN THIS COURT APPELLANT DEFENDS THE CUSTOMER CLAUSES ON THE GROUND
THAT "THE ONLY SURE WAY TO MAKE CERTAIN THAT SOMETHING REALLY IMPORTANT
IS DONE RIGHT, IS TO DO IT FOR ONESELF.  THE SIZE OF THE ORDERS, THE
TECHNICALITIES OF BIDDING AND DELIVERY, AND OTHER FACTORS ALL PLAY A
PART IN THIS DECISION." 

SUMMARY JUDGMENTS HAVE A PLACE IN THE ANTITRUST FIELD, AS ELSEWHERE,
THOUGH, AS WE WARNED IN POLLER V. COLUMBIA BROADCASTING SYSTEM, 368
U.S. 464, 473, THEY ARE NOT APPROPRIATE "WHERE MOTIVE AND INTENT PLAY
LEADING ROLES."  SOME OF THE LAW IN THIS AREA IS SO WELL DEVELOPED THAT
WHERE, AS HERE, THE GIST OF THE CASE TURNS ON DOCUMENTARY EVIDENCE, THE
RULE AT TIMES CAN BE DIVINED WITHOUT A TRIAL. 

WHERE THE SALE OF AN UNPATENTED PRODUCT IS TIED TO A PATENTED
ARTICLE, THAT IS A PER SE VIOLATION SINCE IT IS A BALD EFFORT TO
ENLARGE THE MONOPOLY OF THE PATENT BEYOND ITS TERMS.  MERCOID CORP. V.
HONEYWELL CO., 320 U.S. 680, 684; INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392, 395-396.  AND SEE ETHYL GASOLINE CORP. V. UNITED
STATES, 309 U.S. 436.  IF COMPETITORS AGREE TO DIVIDE MARKETS, THEY RUN
AFOUL OF THE ANTITRUST LAWS.  TIMKEN ROLLER BEARING CO. V. UNITED
STATES, 341 U.S. 593.  GROUP BOYCOTTS ARE ANOTHER EXAMPLE OF A PER SE
VIOLATION.  FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N, 312
U.S. 457; KLOR'S V. BROADWAY-HALE STORES, 359 U.S. 207.  PRICE-FIXING
ARRANGEMENTS, BOTH VERTICAL (UNITED STATES V. PARKE, DAVIS & CO., 362
U.S. 29; DR. MILES MEDICAL CO. V. PARK & SONS, 220 U.S. 373) AND
HORIZONTAL (UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150;
KIEFER-STEWART CO. V. SEAGRAM & SONS, 340 U.S. 211), HAVE ALSO BEEN
HELD TO BE PER SE VIOLATIONS OF THE ANTITRUST LAWS; AND A TRIAL TO SHOW
THEIR NATURE, EXTENT, AND DEGREE IS NO LONGER NECESSARY. 

AS ALREADY STATED, THERE WAS PRICE FIXING HERE AND THAT PART OF THE
INJUNCTION ISSUED BY THE DISTRICT COURT IS NOT NOW CHALLENGED.  IN ANY
PRICE-FIXING CASE RESTRICTIVE PRACTICES ANCILLARY TO THE PRICE-FIXING
SCHEME ARE ALSO QUITE PROPERLY RESTRAINED.  SUCH WAS UNITED STATES V.
BAUSCH & LOMB CO., 321 U.S. 707, WHERE PRICE FIXING WAS "AN INTEGRAL
PART OF THE WHOLE DISTRIBUTING SYSTEM" (ID., 720) INCLUDING CUSTOMER
RESTRICTIONS.  NO SUCH FINDING WAS MADE IN THIS CASE; AND WHETHER OR
NOT THE FACTS WOULD PERMIT ONE WE DO NOT STOP TO INQUIRE. 

APPELLANT APPARENTLY MAINTAINED TWO TYPES OF PRICE-FIXING
AGREEMENTS.  UNDER THE FIRST, A DISTRIBUTOR WAS ALLOWED TO APPOINT
DEALERS UNDER HIM, BUT EACH DISTRIBUTOR HAD TO AGREE WITH APPELLANT
THAT HE WOULD CHARGE THE DEALERS THE SAME PRICE FOR TRUCKS THAT
APPELLANT CHARGED ITS DIRECT DEALERS.  THE AGREEMENT AFFECTED ONLY FIVE
PERCENT OF THE TRUCKS SOLD BY APPELLANT.  AND THERE WERE NO PRICE
FIXING PROVISIONS PERTAINING TO TRUCK SALES TO ULTIMATE PURCHASERS. 
THE OTHER PRICE-FIXING ARRANGEMENT REQUIRED ALL DISTRIBUTORS AND
DEALERS TO GIVE "NATIONAL ACCOUNTS," "FLEET ACCOUNTS," AND GOVERNMENTAL
AGENCIES THE SAME DISCOUNT ON PARTS AND ACCESSORIES AS WHITE GAVE
THEM.  NO FIGURES ARE GIVEN, BUT IT WAS ASSUMED BY THE DISTRICT COURT
THAT THE AMOUNT OF COMMERCE INVOLVED UNDER THIS AGREEMENT WAS
RELATIVELY SMALL.  WITHOUT MORE DETAILED FINDINGS WE THEREFORE CANNOT
SAY THAT THE CASE IS GOVERNED BY UNITED STATES V. BAUSCH & LOMB CO.,
SUPRA. 

WE ARE ASKED TO EXTEND THE HOLDING IN TIMKEN ROLLER BEARING CO. V.
UNITED STATES, SUPRA (WHICH BANNED HORIZONTAL ARRANGEMENTS AMONG
COMPETITORS TO DIVIDE TERRITORY), TO A VERTICAL ARRANGEMENT BY ONE
MANUFACTURER RESTRICTING THE TERRITORY OF HIS DISTRIBUTORS OR DEALERS. 
WE INTIMATE NO VIEW ONE WAY OR THE OTHER ON THE LEGALITY OF SUCH AN
ARRANGEMENT, FOR WE BELIEVE THAT THE APPLICABLE RULE OF LAW SHOULD BE
DESIGNED AFTER A TRIAL. 

THIS IS THE FIRST CASE INVOLVING A TERRITORIAL RESTRICTION IN A
VERTICAL ARRANGEMENT; AND WE KNOW TOO LITTLE OF THE ACTUAL IMPACT OF
BOTH THAT RESTRICTION AND THE ONE RESPECTING CUSTOMERS TO REACH A
CONCLUSION ON THE BARE BONES OF THE DOCUMENTARY EVIDENCE BEFORE US. 
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 62, READ INTO THE
SHERMAN ACT THE "RULE OF REASON."  THAT "RULE OF REASON" NORMALLY
REQUIRES AN ASCERTAINMENT OF THE FACTS PECULIAR TO THE PARTICULAR
BUSINESS.  AS STATED IN CHICAGO BOARD OF TRADE V. UNITED STATES, 246
U.S. 231, 238: 

"EVERY AGREEMENT CONCERNING TRADE, EVERY REGULATION OF TRADE,
RESTRAINS.  TO BIND, TO RESTRAIN, IS OF THEIR VERY ESSENCE.  THE TRUE
TEST OF LEGALITY IS WHETHER THE RESTRAINT IMPOSED IS SUCH AS MERELY
REGULATES AND PERHAPS THEREBY PROMOTES COMPETITION OR WHETHER IT IS
SUCH AS MAY SUPPRESS OR EVEN DESTROY COMPETITION.  TO DETERMINE THAT
QUESTION THE COURT MUST ORDINARILY CONSIDER THE FACTS PECULIAR TO THE
BUSINESS TO WHICH THE RESTRAINT IS APPLIED; ITS CONDITION BEFORE AND
AFTER THE RESTRAINT WAS IMPOSED; THE NATURE OF THE RESTRAINT AND ITS
EFFECT, ACTUAL OR PROBABLE.  THE HISTORY OF THE RESTRAINT, THE EVIL
BELIEVED TO EXIST, THE REASON FOR ADOPTING THE PARTICULAR REMEDY, THE
PURPOSE OR END SOUGHT TO BE ATTAINED, ARE ALL RELEVANT FACTS.  THIS IS
NOT BECAUSE A GOOD INTENTION WILL SAVE AN OTHERWISE OBJECTIONABLE
REGULATION OR THE REVERSE; BUT BECAUSE KNOWLEDGE OF INTENT MAY HELP THE
COURT TO INTERPRET FACTS AND TO PREDICT CONSEQUENCES." 

WE RECENTLY REVIEWED PER SE VIOLATIONS OF THE ANTITRUST LAWS IN
NORTHERN PAC. R. CO. V. UNITED STATES, 356 U.S. 1.  THAT CATEGORY OF
ANTITRUST VIOLATIONS IS MADE UP OF "AGREEMENTS OR PRACTICES WHICH
BECAUSE OF THEIR PERNICIOUS EFFECT ON COMPETITION AND LACK OF ANY
REDEEMING VIRTUE ARE CONCLUSIVELY PRESUMED TO BE UNREASONABLE AND
THEREFORE ILLEGAL WITHOUT ELABORATE INQUIRY AS TO THE PRECISE HARM THEY
HAVE CAUSED OR THE BUSINESS EXCUSE FOR THEIR USE."  ID., P. 5.  TYING
ARRANGEMENTS OR AGREEMENTS BY A PARTY "TO SELL ONE PRODUCT BUT ONLY ON
THE CONDITION THAT THE BUYER ALSO PURCHASES A DIFFERENT (OR TIED)
PRODUCT, OR AT LEAST AGREES THAT HE WILL NOT PURCHASE THAT PRODUCT FROM
ANY OTHER SUPPLIER" (ID., PP. 5-6) MAY FALL IN THAT CATEGORY, THOUGH
NOT NECESSARILY SO. 

"THEY ARE UNREASONABLE IN AND OF THEMSELVES WHENEVER A PARTY HAS
SUFFICIENT ECONOMIC POWER WITH RESPECT TO THE TYING PRODUCT TO
APPRECIABLY RESTRAIN FREE COMPETITION IN THE MARKET FOR THE TIED
PRODUCT AND A 'NOT INSUBSTANTIAL' AMOUNT OF INTERSTATE COMMERCE IS
AFFECTED  ...  .  OF COURSE WHERE THE SELLER HAS NO CONTROL OR
DOMINANCE OVER THE TYING PRODUCT SO THAT IT DOES NOT REPRESENT AN
EFFECTUAL WEAPON TO PRESSURE BUYERS INTO TAKING THE TIED ITEM ANY
RESTRAINT OF TRADE ATTRIBUTABLE TO SUCH TYING ARRANGEMENTS WOULD
OBVIOUSLY BE INSIGNIFICANT AT MOST.  AS A SINGLE EXAMPLE, IF ONE OF A
DOZEN FOOD STORES IN A COMMUNITY WERE TO REFUSE TO SELL FLOUR UNLESS
THE BUYER ALSO TOOK SUGAR IT WOULD HARDLY TEND TO RESTRAIN COMPETITION
IN SUGAR IF ITS COMPETITORS WERE READY AND ABLE TO SELL FLOUR BY
ITSELF."  ID., PP. 6-7. 

WE RECENTLY NOTED THE IMPORTANCE OF THE NATURE OF THE TYING
ARRANGEMENTS IN ITS FACTUAL SETTING: 

"THUS, UNLESS THE TYING DEVICE IS EMPLOYED BY A SMALL COMPANY IN AN
ATTEMPT TO BREAK INTO A MARKET, CF. HARLEY-DAVIDSON MOTOR CO., 50
F.T.C. 1047, 1066, THE USE OF A TYING DEVICE CAN RARELY BE HARMONIZED
WITH THE STRICTURES OF THE ANTITRUST LAWS, WHICH ARE INTENDED PRIMARILY
TO PRESERVE AND STIMULATE COMPETITION."  BROWN SHOE CO. V. UNITED
STATES, 370 U.S. 294, 330. 

HORIZONTAL TERRITORIAL LIMITATIONS, LIKE "GROUP BOYCOTTS, OR
CONCERTED REFUSALS BY TRADERS TO DEAL WITH OTHER TRADERS" (KLOR'S V.
BROADWAY-HALE STORES, SUPRA, 212), ARE NAKED RESTRAINTS OF TRADE WITH
NO PURPOSE EXCEPT STIFLING OF COMPETITION.  A VERTICAL TERRITORIAL
LIMITATION MAY OR MAY NOT HAVE THAT PURPOSE OR EFFECT.  WE DO NOT KNOW
ENOUGH OF THE ECONOMIC AND BUSINESS STUFF OUT OF WHICH THESE
ARRANGEMENTS EMERGE TO BE CERTAIN.  THEY MAY BE TOO DANGEROUS TO
SANCTION OR THEY MAY BE ALLOWABLE PROTECTIONS AGAINST AGGRESSIVE
COMPETITORS OR THE ONLY PRACTICABLE MEANS A SMALL COMPANY HAS FOR
BREAKING INTO OR STAYING IN BUSINESS (CF. BROWN SHOE, SUPRA, AT 330;
UNITED STATES V. JERROLD ELECTRONICS CORP., 187 F. SUPP. 545, 560-561,
AFF'D, 365 U.S. 567) AND WITHIN THE "RULE OF REASON."  WE NEED TO KNOW
MORE THAN WE DO ABOUT THE ACTUAL IMPACT OF THESE ARRANGEMENTS ON
COMPETITION TO DECIDE WHETHER THEY HAVE SUCH A "PERNICIOUS EFFECT ON
COMPETITION AND LACK  ...  ANY REDEEMING VIRTUE" (NORTHERN PAC. R. CO.
V. UNITED STATES, SUPRA, P. 5) AND THEREFORE SHOULD BE CLASSIFIED AS
PER SE VIOLATIONS OF THE SHERMAN ACT. 

THERE IS AN ANALOGY FROM THE MERGER FIELD THAT LEADS US TO CONCLUDE
THAT A TRIAL SHOULD BE HAD.  A MERGER THAT WOULD OTHERWISE OFFEND THE
ANTITRUST LAWS BECAUSE OF A SUBSTANTIAL LESSENING OF COMPETITION HAS
BEEN GIVEN IMMUNITY WHERE THE ACQUIRED COMPANY WAS A FAILING ONE.  SEE
INTERNATIONAL SHOE CO. V. COMMISSION, 280 U.S. 291, 302-303.  BUT IN
SUCH A CASE, AS IN CASES INVOLVING THE QUESTION WHETHER A PARTICULAR
MERGER WILL TEND "SUBSTANTIALLY TO LESSEN COMPETITION" (BROWN SHOE CO.
V. UNITED STATES, SUPRA, PP. 328-329), A TRIAL RATHER THAN THE USE OF
THE SUMMARY JUDGMENT IS NORMALLY NECESSARY.  UNITED STATES V. DIEBOLD,
INC., 369 U.S. 654. 

WE CONCLUDE THAT THE SUMMARY JUDGMENT, APART FROM THE PRICE-FIXING
PHASE OF THE CASE, WAS IMPROPERLY EMPLOYED IN THIS SUIT.  APART FROM
PRICE FIXING, WE DO NOT INTIMATE ANY VIEW ON THE MERITS.  WE ONLY HOLD
THAT THE LEGALITY OF THE TERRITORIAL AND CUSTOMER LIMITATIONS SHOULD BE
DETERMINED ONLY AFTER A TRIAL.  REVERSED. 

FN1  WE ARE ADVISED BY APPELLANT THAT SINCE THE JUDGMENT BELOW, WHITE
"NO LONGER USES DISTRIBUTORS AS A SEPARATE TIER IN ITS SYSTEM, BUT
SELLS DIRECTLY TO DEALERS INSTEAD." 

FN2  APPELLANT DOES NOT APPEAL FROM THE DISTRICT COURT'S RULING THAT
THE PROVISIONS OF THE CONTRACTS FIXING RESALE PRICES WERE UNLAWFUL. 

FN3  SEE NOTE 2, SUPRA. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, THE NOVELTY OF THE ANTITRUST
QUESTIONS PROMPTS ME TO ADD A FEW WORDS.  I FULLY AGREE THAT IT WOULD
BE PREMATURE TO DECLARE EITHER THE TERRITORIAL OR THE CUSTOMER
RESTRICTIONS ILLEGAL PER SE, SINCE "WE KNOW TOO LITTLE OF THE ACTUAL
IMPACT (OF EITHER FORM OF RESTRAINT)  ...  TO REACH A CONCLUSION ON THE
BARE BONES OF THE  ...  EVIDENCE BEFORE US."  BUT IT SEEMS TO ME THAT
DISTINCT PROBLEMS ARE RAISED BY THE TWO TYPES OF RESTRICTIONS AND THAT
THE DISTRICT COURT WILL WISH TO HAVE THIS DISTINCTION IN MIND AT THE
TRIAL. 

                                   I. 

I DISCUSS FIRST THE TERRITORIAL LIMITATIONS.  THE INSULATION OF A
DEALER OR DISTRIBUTOR THROUGH TERRITORIAL RESTRAINTS AGAINST SALES BY
NEIGHBORING DEALERS WHO WOULD OTHERWISE BE HIS COMPETITIORS INVOLVES A
FORM OF RESTRAINT UPON ALIENATION, WHICH IS THEREFORE HISTORICALLY AND
INHERENTLY SUSPECT UNDER THE ANTITRUST LAWS.  (FN1)  SEE DR. MILES
MEDICAL CO. V. JOHN D. PARK & SONS CO., 220 U.S. 373, 404-408.  THAT
PROPOSITION DOES NOT, HOWEVER, TELL US THAT EVERY FORM OF SUCH
RESTRAINT IS UTTERLY WITHOUT JUSTIFICATION AND IS THEREFORE TO BE
DEEMED UNLAWFUL PER SE.  THAT IS TRUE ONLY OF THOSE "AGREEMENTS OR
PRACTICES WHICH BECAUSE OF THEIR PERNICIOUS EFFECT ON COMPETITION AND
LACK OF ANY REDEEMING VIRTUE ARE CONCLUSIVELY PRESUMED TO BE
UNREASONABLE AND THEREFORE ILLEGAL WITHOUT ELABORATE INQUIRY AS TO THE
PRECISE HARM THEY HAVE CAUSED OR THE BUSINESS EXCUSE FOR THEIR USE." 
NORTHERN PAC. R. CO. V. UNITED STATES, 356 U.S. 1, 5.  SPECIFICALLY,
THE PER SE RULE OF PROHIBITION HAS BEEN APPLIED TO PRICE-FIXING
AGREEMENTS, GROUP BOYCOTTS, TYING ARRANGEMENTS, AND HORIZONTAL
DIVISIONS OF MARKETS.  AS TO EACH OF THESE PRACTICES, EXPERIENCE AND
ANALYSIS HAVE ESTABLISHED THE UTTER LACK OF JUSTIFICATION TO EXCUSE ITS
INHERENT THREAT TO COMPETITION.  (FN2)  TO GAUGE THE APPROPRIATENESS OF
A PER SE TEST FOR THE FORMS OF RESTRAINT INVOLVED IN THIS CASE, THEN,
WE MUST DETERMINE WHETHER EXPERIENCE WARRANTS, AT THIS STAGE, A
CONCLUSION THAT INQUIRY INTO EFFECT UPON COMPETITION AND ECONOMIC
JUSTIFICATION WOULD BE SIMILARLY IRRELEVANT.  (FN3)  WITH RESPECT TO
THE TERRITORIAL LIMITATIONS OF THE TYPE AT BAR, I AGREE THAT THE COURTS
HAVE AS YET BEEN SHOWN NO SUFFICIENT EXPERIENCE TO WARRANT SUCH A
CONCLUSION. 

THE GOVERNMENT URGES, AND THE DISTRICT COURT FOUND, THAT THESE
RESTRICTIONS SO CLOSELY RESEMBLE TWO TRADITIONALLY OUTLAWED FORMS OF
RESTRAINT - HORIZONTAL MARKET DIVISION AND RESALE PRICE MAINTENANCE -
THAT THEY OUGHT TO BE GOVERNED BY THE SAME ABSOLUTE LEGAL TEST.  BOTH
ANALOGIES ARE SURELY INSTRUCTIVE, AND ALL THE MORE SO BECAUSE THE
PRACTICES AT BAR ARE SUI GENERIS; BUT BOTH ARE, AT THE SAME TIME,
MISLEADING.  IT SEEMS TO ME THAT CONSIDERATION OF THE SIMILARITIES HAS
THUS FAR OBSCURED CONSIDERATION OF THE EQUALLY IMPORTANT DIFFERENCES,
WHICH SERVE IN MY VIEW TO DISTINGUISH THE PRACTICE HERE FROM OTHERS AS
TO WHICH WE HAVE HELD A PER SE TEST CLEARLY APPROPRAITE. 

TERRITORIAL LIMITATIONS BEAR AT LEAST A SUPERFICIAL RESEMBLANCE TO
HORIZONTAL DIVISIONS OF MARKETS AMONG COMPETITIORS, WHICH WE HAVE HELD
TO BE TANTAMOUNT TO AGREEMENTS NOT TO COMPETE, AND HENCE INEVITABLY
VIOLATIVE OF THE SHERMAN ACT, (FN4) TIMKEN ROLLER BEARING CO. V. UNITED
STATES, 341 U.S. 593.  IF IT WERE CLEAR THAT THE TERRITORIAL
RESTRICTIONS INVOLVED IN THIS CASE HAD BEEN INDUCED SOLELY OR EVEN
PRIMARILY BY APPELLANT'S DEALERS AND DISTRIBUTORS, IT WOULD MAKE NO
DIFFERENCE TO THEIR LEGALITY THAT THE RESTRICTIONS WERE FORMALLY
IMPOSED BY THE MANUFACTURER RATHER THAN THROUGH INTER-DEALER
AGREEMENT.  (FN5)  CF. INTERSTATE CIRCUIT, INC., V. UNITED STATES, 306
U.S. 208; UNITED STATES V. MASONITE CORP., 316 U.S. 265, 275-276.  BUT
FOR AUGHT THAT THE PRESENT RECORD DISCLOSES, AN EQUALLY PLAUSIBLE
INFERENCE IS THAT THE TERRITORIAL RESTRAINTS WERE IMPOSED UPON
UNWILLING DISTRIBUTORS BY THE MANUFACTURER TO SERVE EXCLUSIVELY HIS OWN
INTERESTS.  THAT INFERENCE GAINS SOME CREDIBILITY FROM THE FACT THAT
THESE LIMITATIONS - UNLIKE, FOR EXAMPLE, EXCLUSIVE FRANCHISE AGREEMENTS
- BIND THE DEALERS TO A RATHER HARSH BARGAIN WHILE LEAVING THE
MANUFACTURER UNFETTERED.  IN ANY EVENT, NEITHER THE SOURCE NOR THE
PURPOSE OF THESE RESTRAINTS CAN BE CONCLUSIVELY DETERMINED ON THE
PLEADINGS OR THE SUPPORTING AFFIDAVITS.  THE CRUCIAL QUESTION WHETHER,
DESPITE THE DIFFERENCES IN FORM, THESE RESTRAINTS SERVE THE SAME
PERNICIOUS PURPOSE AND HAVE THE SAME INHIBITORY EFFECTS UPON
COMPETITION AS HORIZONTAL DIVISIONS OF MARKETS, IS ONE WHICH CANNOT BE
ANSWERED WITHOUT A TRIAL.  (FN6) 

THE ANALOGY TO RESALE PRICE MAINTENANCE AGREEMENTS IS ALSO APPEALING,
BUT IS NO LESS DECEPTIVE.  RESALE PRICE MAINTENANCE IS NOT ONLY
DESIGNED TO, BUT ALMOST INVARIABLY DOES IN FACT, REDUCE PRICE
COMPETITION NOT ONLY AMONG SELLERS OF THE AFFECTED PRODUCT, BUT QUITE
AS MUCH BETWEEN THAT PRODUCT AND COMPETING BRANDS.  SEE UNITED STATES
V. PARKE, DAVIS & CO., 362 U.S. 29, 45-47.  WHILE TERRITORIAL
RESTRICTIONS MAY INDIRECTLY HAVE A SIMILAR EFFECT UPON INTRA-BRAND
COMPETITION, THE EFFECT UPON INTER-BRAND COMPETITION IS NOT NECESSARILY
THE SAME AS THAT OF RESALE PRICE MAINTENANCE.   (FN7) 

INDEED, THE PRINCIPAL JUSTIFICATION WHICH THE APPELLANT OFFERS FOR
THE USE OF THESE LIMITATIONS IS THAT THEY FOSTER A VIGOROUS INTER-BRAND
COMPETITION WHICH MIGHT OTHERWISE BE ABSENT.  THUS, IN ORDER TO
DETERMINE THE LAWFULNESS OF THIS FORM OF RESTRAINT, IT BECOMES
NECESSARY TO ASSESS THE MERIT OF THIS AND OTHER EXTENUATIONS OFFERED BY
THE APPELLANT.  SURELY IT WOULD BE SIGNIFICANT TO THE DISPOSITION OF
THIS CASE IF, AS APPELLANT CLAIMS, SOME SUCH ARRANGEMENT WERE A
PREREQUISITE FOR EFFECTIVE COMPETITION ON THE PART OF INDEPENDENT
MANUFACTURERS OF TRUCKS.  WHATEVER RELATIONSHIP SUCH RESTRAINTS MAY
BEAR TO THE ULTIMATE SURVIVAL OF PRODUCERS LIKE WHITE SHOULD BE FULLY
EXPLORED BY THE DISTRICT COURT IF WE ARE PROPERLY TO APPRAISE THIS
EXCUSE FOR RESORT TO THESE PRACTICES. 

THERE ARE OTHER SITUATIONS, NOT PRESENTED DIRECTLY BY THIS CASE, IN
WHICH THE POSSIBILITY OF JUSTIFICATION CAUTIONS AGAINST A TOO HASTY
CONCLUSION THAT TERRITORIAL LIMITATIONS ARE INVARIABLY UNLAWFUL. 
ARGUMENTS HAVE BEEN SUGGESTED AGAINST THAT CONCLUSION, FOR EXAMPLE, IN
THE CASE OF A MANUFACTURER STARTING OUT IN BUSINESS OR MARKETING A NEW
AND RISKY PRODUCT; THE SUGGESTION IS THAT SUCH A MANUFACTURER MAY FIND
IT ESSENTIAL, SIMPLY IN ORDER TO ACQUIRE AND RETAIN OUTLETS, TO
GUARANTEE HIS DISTRIBUTORS SOME DEGREE OF TERRITORIAL INSULATION AS
WELL AS EXCLUSIVE FRANCHISES.  IT HAS ALSO BEEN SUGGESTED THAT IT MAY
REASONABLY APPEAR NECESSARY FOR A MANUFACTURER TO SUBDIVIDE HIS SALES
TERRITORY IN ORDER TO ENSURE THAT HIS PRODUCT WILL BE ADEQUATELY
ADVERTISED, PROMOTED, AND SERVICED.  (FN8)  IT IS, I THINK, THE
INAPPROPRIATENESS OR IRRELEVANCE OF SUCH JUSTIFICATIONS AS THESE TO THE
PRACTICES TRADITIONALLY CONDEMNED UNDER THE PER SE TEST THAT
PRINCIPALLY DISTINGUISHES THE TERRITORIAL RESTRAINTS INVOLVED IN THE
PRESENT CASE FROM HORIZONTAL MARKET DIVISIONS AND RESALE PRICE
MAINTENANCE. 

ANOTHER ISSUE WHICH SEEMS TO ME PARTICULARLY TO REQUIRE A FULL
INQUIRY INTO THE PROS AND CONS OF THESE TERRITORIAL RESTRICTIONS IS
WHETHER, ASSUMING THAT SOME JUSTIFICATION FOR THESE LIMITATIONS CAN BE
SHOWN, THEIR OPERATION IS REASONABLY RELATED TO THE NEEDS WHICH BROUGHT
THEM INTO BEING.  TO PUT THE QUESTION ANOTHER WAY, THE PROBLEM IS NOT
SIMPLY WHETHER SOME JUSTIFICATION CAN BE FOUND, BUT WHETHER THE
RESTRAINT SO JUSTIFIED IS MORE RESTRICTIVE THAN NECESSARY, OR
EXCESSIVELY ANTICOMPETITIVE, WHEN VIEWED IN LIGHT OF THE EXTENUATING
INTERESTS.  (FN9)  THAT QUESTION IS ONE WHICH CAN BE ADEQUATELY TREATED
ONLY BY EXAMINING THE OPERATION AND PRACTICAL EFFECT OF THE RESTRAINTS,
WHATEVER MAY BE THEIR FORM.  AND IN ORDER TO APPRAISE THAT EFFECT, IT
IS NECESSARY TO KNOW WHAT SANCTIONS ARE IMPOSED AGAINST DISTRIBUTORS
WHO "RAID," OR SELL ACROSS TERRITORIAL BOUNDARIES IN VIOLATION OF THE
AGREEMENTS.  IF, FOR EXAMPLE, SUCH A CROSS-SALE INCURS ONLY AN
OBLIGATION TO SHARE (OR "PASS OVER") THE PROFIT WITH THE DEALER WHOSE
TERRITORY HAS BEEN INVADED - AS IS MOST OFTEN, AND APPARENTLY HERE, THE
CASE (FN10) - THEN THE PRACTICAL EFFECT UPON COMPETITION OF A
TERRITORIAL LIMITATION MAY BE NO MORE HARMFUL THAN THAT OF THE TYPICAL
EXCLUSIVE FRANCHISE - THE LAWFULNESS OF WHICH THE GOVERNMENT DOES NOT
DISPUTE HERE.  IF, ON THE OTHER HAND, THE DEALER WHO CROSS-SELLS RUNS
THE RISK UNDER THE AGREEMENT OF LOSING HIS FRANCHISE ALTOGETHER, INTRA
BRAND COMPETITION ACROSS TERRITORIAL BOUNDARIES INVOLVES SERIOUS
HAZARDS WHICH MIGHT WELL DETER ANY EFFORT TO COMPETE.    ANOTHER
PERTINENT INQUIRY WOULD EXPLORE THE AVAILABILITY OF LESS RESTRICTIVE
ALTERNATIVES.  IN THE PRESENT CASE, FOR EXAMPLE, AS THE GOVERNMENT
SUGGESTS, IT MAY APPEAR AT THE TRIAL THAT WHATEVER LEGITIMATE BUSINESS
NEEDS WHITE ADVANCES FOR TERRITORIAL LIMITATIONS COULD BE ADEQUATELY
SERVED, WITH LESS DAMAGE TO COMPETITION, THROUGH OTHER DEVICES - FOR
EXAMPLE, AN EXCLUSIVE FRANCHISE, (FN11) AN ASSIGNMENT OF AREAS OF
PRIMARY RESPONSIBILITY TO EACH DISTRIBUTOR, (FN12) OR A REVISION OF THE
LEVELS OF PROFIT PASS-OVER SO AS TO MINIMIZE THE DETERRENCE TO CROSS
SELLING BY NEIGHBORING DEALERS WHERE COMPETITION IS FEASIBLE.  (FN13)
BUT NO SUCH INQUIRY AS THIS INTO THE QUESTION OF ALTERNATIVES COULD
MEANINGFULLY BE UNDERTAKEN UNTIL THE DISTRICT COURT HAS ASCERTAINED THE
EFFECT UPON COMPETITION OF THE PARTICULAR TERRITORIAL RESTRAINTS IN
SUIT, AND OF THE PARTICULAR SANCTIONS BY WHICH THEY ARE ENFORCED. 

                         II. 

I TURN NEXT TO THE CUSTOMER RESTRICTIONS.  THESE PRESENT A PROBLEM
QUITE DISTINCT FROM THAT OF THE TERRITORIAL LIMITATIONS.  THE CUSTOMER
RESTRAINTS WOULD SEEM INHERENTLY THE MORE DANGEROUS OF THE TWO, FOR
THEY SERVE TO SUPPRESS ALL COMPETITION BETWEEN MANUFACTURER AND
DISTRIBUTORS FOR THE CUSTOM OF THE MOST DESIRABLE ACCOUNTS.  AT THE
SAME TIME THEY SEEM TO LACK ANY OF THE COUNTERVAILING TENDENCIES TO
FOSTER COMPETITION BETWEEN BRANDS WHICH MAY ACCOMPANY THE TERRITORIAL
LIMITATIONS.  IN SHORT, THERE IS FAR MORE DIFFICULTY IN SUPPOSING THAT
SUCH CUSTOMER RESTRICTIONS CAN BE JUSTIFIED. 

THE CRUCIAL QUESTION TO ME IS WHETHER, IN ANY MEANINGFUL SENSE, THE
DISTRIBUTORS COULD, BUT FOR THE RESTRICTIONS, COMPETE WITH THE
MANUFACTURER FOR THE RESERVED OUTLETS.  (FN14)  IF THEY COULD, BUT ARE
PREVENTED FROM DOING SO ONLY BY THE RESTRICTIONS, THEN IN THE ABSENCE
OF SOME JUSTIFICATION NEITHER PRESENTED NOR SUGGESTED BY THIS RECORD,
THEIR INVALIDITY WOULD SEEM TO BE APPARENT.  CF. UNITED STATES V.
MCKESSON & ROBBINS, INC., 351 U.S. 305, 312; UNITED STATES V. KLEARFLAX
LINEN LOOMS, INC., 63 F. SUPP. 32.  IF, ON THE OTHER HAND, IT TURNS OUT
THAT AS A PRACTICAL MATTER THE RESTRICTED DEALERS COULD NEITHER FILL
THE ORDERS NOR SERVICE THE FLEETS OF THE GOVERNMENTAL AND FLEET
CUSTOMERS, THEN THE DISTRICT COURT MIGHT CONCLUDE THAT BECAUSE THERE
WOULD OTHERWISE BE NO MEANINGFUL COMPETITION, THE RESTRICTIVE
AGREEMENTS DO NO MORE THAN CODIFY THE ECONOMICALLY OBVIOUS.  IT MIGHT
EVEN BE THAT SUCH RESTRICTIONS WERE ORIGINALLY DESIGNED TO FORECLOSE
THE DISTRIBUTORS FROM SOLICITING THE RESERVED ACCOUNTS, BUT THAT NOW
THE RESTRICTIONS HAVE BECOME MEANINGLESS BECAUSE THE DISTRIBUTORS WOULD
IN ANY EVENT BE UNABLE TO COMPETE. 

THE REASONS GIVEN BY WHITE FOR THE USE OF CUSTOMER RESTRICTIONS
STRIKE ME AS UNTENABLE IF IN OPERATION AND EFFECT THE RESTRICTIONS ARE
FOUND TO STIFLE COMPETITION.  THESE JUSTIFICATIONS ARE OF THREE TYPES. 
FIRST, WHITE ARGUES THAT SUCH RESTRICTIONS ARE REQUIRED BECAUSE "A
DISTRIBUTOR OR DEALER IS NOT COMPETENT TO HANDLE THIS INTRICATE PROCESS
(OF SERVICING LARGE ACCOUNTS) UNTIL HE HAS HAD MANY MONTHS OF
SPECIALIZED WHITE TRAINING"; AND THAT THERE IS A CONSEQUENT DANGER OF
"UNAUTHORIZED DEALERS" WHO "WILL BE UNQUALIFIED TO WORK OUT
SPECIFICATIONS FOR TRUCKS TO MEET CUSTOMERS' PECULIAR REQUIREMENTS." 
TO THE EXTENT THAT THESE FEARS ARE WELL FOUNDED, THEY REPRESENT THE
CONCERNS WHICH ANY MANUFACTURER MAY LEGITIMATELY HAVE ABOUT HIS
DISTRIBUTORS' ABILITY TO DEAL EFFECTIVELY WITH LARGE OR DEMANDING
CUSTOMERS.  BY THEIR VERY TERMS, HOWEVER, THESE CONCERNS SEEM TO CALL
NOT FOR CUTTING THE DISTRIBUTORS COMPLETELY OUT OF THIS SEGMENT OF THE
MARKET, BUT RATHER FOR SUCH LESS DRASTIC MEASURES AS, FOR EXAMPLE,
IMPROVED SUPERVISION AND TRAINING, OR PERHAPS A SPECIAL FORM OF
MANUFACTURER'S WARRANTY TO THE GOVERNMENTAL AND FLEET PURCHASERS TO
PROTECT AGAINST UNSATISFACTORY DISTRIBUTOR SERVICING. 

THE SECOND JUSTIFICATION WHITE OFFERS IS THAT "THE ONLY SURE WAY TO
MAKE CERTAIN THAT SOMETHING REALLY IMPORTANT IS DONE RIGHT, IS TO DO IT
FOR ONESELF."  THIS ARGUMENT SEEMS TO ME TO PROVE TOO MUCH, FOR IF THE
DISTRIBUTORS TRULY CANNOT BE COUNTED ON TO SOLICIT AND SERVICE THE
GOVERNMENTAL AND FLEET ACCOUNTS - NOT ALL OF WHICH ARE, IN FACT, LARGE
OR DEMANDING - THEN THIS SUGGESTS THAT THE ONLY ADEQUATE SOLUTION MAY
BE VERTICAL INTEGRATION, THE ELIMINATION OF ALL INDEPENDENT OR
FRANCHISED DISTRIBUTION.  BUT THAT WHITE IS EITHER UNWILLING OR UNABLE
TO DO.  INSTEAD, IT SEEKS THE BEST OF BOTH WORLDS - TO RETAIN A
DISTRIBUTION SYSTEM FOR THE GENERAL RUN OF ITS CUSTOMERS, WHILE
SKIMMING OFF THE CREAM OF THE TRADE FOR ITS OWN DIRECT SALES.  THAT, IT
SEEMS TO ME, THE ANTITRUST LAWS WOULD NOT PERMIT, CF. EASTMAN KODAK CO.
V. SOUTHERN PHOTO MATERIALS CO., 273 U.S. 359, 375, IF IN FACT THE
DISTRIBUTORS COULD COMPETE FOR THE RESERVED ACCOUNTS WITHOUT THE
RESTRICTIONS. 

THE THIRD JUSTIFICATION, WHICH WHITE OFFERED IN ITS JURISDICTIONAL
STATEMENT, IS THAT CUSTOMER LIMITATIONS ARE ESSENTIAL TO ENABLE IT TO
"MORE EFFECTIVELY COMPETE AGAINST ITS COMPETITORS BY SELLING TRUCKS
DIRECTLY" TO THE RESERVED CUSTOMERS RATHER THAN "THROUGH THE
INTERPOSITION OF DISTRIBUTORS OR DEALERS."  THIS ARGUMENT INVITES
CONSIDERATION OF WHAT TO ME IS THE ESSENTIAL VICE OF THE CUSTOMER
RESTRICTIONS.  THE MANUFACTURER'S VERY POSITION IN THE CHANNELS OF
DISTRIBUTION SHOULD AFFORD HIM AN INHERENT COST ADVANTAGE OVER HIS
DISTRIBUTORS.  IN THE NATURE OF THINGS, IT WOULD SEEM THAT THE LARGE
PURCHASERS WOULD BUY FROM WHICHEVER OUTLET GAVE THEM THE LOWEST
PRICES.  THUS, IF THE MANUFACTURER ALWAYS DID GRANT DISCOUNTS WHICH THE
DISTRIBUTORS WERE UNABLE TO GRANT, THERE WOULD SEEM TO BE NO REASON
WHATEVER FOR DENYING THE DISTRIBUTORS ABLE TO OVERCOME THAT ADVANTAGE
ACCESS TO THE PREFERRED CUSTOMERS.  CONVERSELY, THE PRESENCE OF SUCH
RESTRICTIONS IN THE AGREEMENTS BETWEEN WHITE AND ITS DISTRIBUTORS
SUGGESTS THAT THEY ARE DESIGNED, AT LEAST IN PART, TO PROTECT A
NONCOMPETITIVE PRICING STRUCTURE, IN WHICH THE MANUFACTURER IN FACT
DOES NOT ALWAYS CHARGE THE LOWEST PRICES. 

IN SUM, THE PROFFERED JUSTIFICATIONS DO NOT SEEM TO ME TO SANCTION
CUSTOMER RESTRICTIONS WHICH SUPPRESS ALL COMPETITION BETWEEN THE
MANUFACTURER AND HIS DISTRIBUTORS FOR THE MOST DESIRABLE CUSTOMERS.  ON
TRIAL, AS I SEE IT, THE GOVERNMENT WILL NECESSARILY PREVAIL UNLESS THE
PROOF WARRANTS A FINDING THAT, EVEN IN THE ABSENCE OF THE RESTRICTIONS,
THE ECONOMICS OF THE TRADE ARE SUCH THAT THE DISTRIBUTORS CANNOT
COMPETE FOR THE RESERVED ACCOUNTS. 

FN1  FOR A GENERAL CONSIDERATION OF THE HISTORY AND LEGALITY OF
RESTRAINTS UPON ALIENATION, BOTH AT COMMON LAW AND UNDER THE SHERMAN
ACT, SEE LEVI, THE PARKE, DAVIS-COLGATE DOCTRINE: THE BAN ON RESALE
PRICE MAINTENANCE, SUPREME COURT REVIEW (KURLAND ED. 1960), 258, 270
278. 

FN2  THE GENERAL PRINCIPLE WHICH THE COURT HAS STATED WITH RESPECT TO
PRICE-FIXING AGREEMENTS IS APPLICABLE ALIKE TO BOYCOTTS, DIVISIONS OF
MARKETS, AND TYING ARRANGEMENTS: "WHATEVER ECONOMIC JUSTIFICATION
PARTICULAR  ...  AGREEMENTS MAY BE THOUGHT TO HAVE, THE LAW DOES NOT
PERMIT AN INQUIRY INTO THEIR REASONABLENESS.  THEY ARE ALL BANNED
BECAUSE OF THEIR ACTUAL OR POTENTIAL THREAT TO THE CENTRAL NERVOUS
SYSTEM OF THE ECONOMY."  UNITED STATES V. SOCONY-VACUUM OIL CO., 310
U.S. 150, 224, N. 59, AT 226. 

FN3  OUTSIDE THE CATEGORIES OF RESTRAINT WHICH ARE PER SE UNLAWFUL,
THIS COURT HAS SAID THAT THE QUESTION TO BE ANSWERED IS "WHETHER THE
RESTRAINT IMPOSED IS SUCH AS MERELY REGULATES AND PERHAPS THEREBY
PROMOTES COMPETITION OR WHETHER IT IS SUCH AS MAY SUPPRESS OR EVEN
DESTROY COMPETITION.  TO DETERMINE THAT QUESTION THE COURT MUST
ORDINARILY CONSIDER THE FACTS PECULIAR TO THE BUSINESS TO WHICH THE
RESTRAINT IS APPLIED; ITS CONDITION BEFORE AND AFTER THE RESTRAINT WAS
IMPOSED; THE NATURE OF THE RESTRAINT AND ITS EFFECT, ACTUAL OR
PROBABLE.  THE HISTORY OF THE RESTRAINT, THE EVIL BELIEVED TO EXIST,
THE REASON FOR ADOPTING THE PARTICULAR REMEDY, THE PURPOSE OR END
SOUGHT TO BE ATTAINED, ARE ALL RELEVANT FACTS."  CHICAGO BOARD OF TRADE
V. UNITED STATES, 246 U.S. 231, 238. 

WHILE THE GOVERNMENT URGES UPON US THE ADOPTION OF A PER SE RULE OF
ILLEGALITY, IT NONETHELESS RECOGNIZES THAT NOT ALL THE CONSIDERATIONS
RELEVANT TO THE VALIDITY OF THIS PARTICULAR FORM OF RESTRAINT ARE OR
COULD BE PRESENTED BY THE PRESENT CASE:  "WHAT IS THE IMPORTANCE OF
INTERBRAND AS OPPOSED TO INTRABRAND COMPETITION?  ...  WILL WHITE'S
RESTRICTIONS REMAIN REASONABLE IF ITS SHARE OF THE MARKET INCREASES? 
...  THESE ARE ONLY A FEW OF THE ISSUES RELEVANT TO A TRIAL OF THE
'REASONABLENESS' OF ANY PARTICULAR SET OF TERRITORIAL RESTRICTIONS. 
NOR COULD ONE BE CONTENT WITH A SINGLE INVESTIGATION.  BUSINESS
CONDITIONS CHANGE.  THE EFFECT OF RESTRICTING COMPETITION AMONG DEALERS
TODAY MAY BE DIFFERENT TOMORROW."  BRIEF FOR THE UNITED STATES, PP. 31
32. 

FN4  SEE ADDYSTON PIPE & STEEL CO. V. UNITED STATES, 175 U.S. 211,
240-245; UNITED STATES V. NATIONAL LEAD CO., 63 F. SUPP. 513, AFF'D,
332 U.S. 319.  SEE ALSO REPORT OF THE ATTORNEY GENERAL'S NATIONAL
COMMITTEE TO STUDY THE ANTITRUST LAWS (1955), 26. 

FN5  FOR CONTRASTING VIEWS ON THIS QUESTION, COMPARE KESSLER AND
STERN, COMPETITION, CONTRACT, AND VERTICAL INTEGRATION, 69 YALE L.J. 1,
113 (1959), WITH ROBINSON, RESTRAINTS ON TRADE AND THE ORDERLY
MARKETING OF GOODS, 45 CORNELL L.Q. 254, 267-268 (1960). 

FN6  SEE, FOR AN ELABORATION AND DISCUSSION OF SOME OF THE FACTORS
WHICH MIGHT ENTER SUCH AN INQUIRY, SNAP-ON TOOLS CORP., FTC DOCKET
7116, 3 CCH TRADE REG. REP. PARA. 15,546; JORDAN, EXCLUSIVE AND
RESTRICTED SALES AREAS UNDER THE ANTITRUST LAWS, 9 U.C.L.A.L.  REV.
111, 125-129 (1962).  FOR FURTHER DISCUSSION OF THE REASONS WHICH MAKE
SUCH AN INQUIRY DESIRABLE WITH RESPECT TO RESTRAINTS OF THIS VERY KIND,
SEE TURNER, THE DEFINITION OF AGREEMENT UNDER THE SHERMAN ACT:
CONSCIOUS PARALLELISM AND REFUSALS TO DEAL, 75 HARV.  L. REV. 655, 698
699 (1962). 

FN7  SEE NOTE, RESTRICTED CHANNELS OF DISTRIBUTION UNDER THE SHERMAN
ACT, 75 HARV.  L. REV. 795, 800-801 (1962).  IT MAY BE RELEVANT TO THE
QUESTION WHETHER THE TERRITORIAL RESTRICTIONS WERE INTENDED TO SUPPRESS
PRICE COMPETITION THAT APPELLANT ALSO MAINTAINED A SCHEDULE OF RESALE
PRICES IN ITS DISTRIBUTOR AGREEMENTS, THOUGH THERE HAS BEEN NO
CHALLENGE HERE TO THE DISTRICT COURT'S FINDING THAT THOSE PROVISIONS
WERE UNLAWFUL PER SE. 

FN8  FOR SITUATIONS IN WHICH SUCH EXTENUATIONS MIGHT BE RELEVANT,
COMPARE, E.G., PACKARD MOTOR CAR CO. V. WEBSTER MOTOR CAR CO., 100 U.S.
APP. D.C. 161, 243 F.2D 418; SCHWING MOTOR CO. V. HUDSON SALES CORP.,
138 F. SUPP. 899 (D.C.D. MD.), AFF'D, 239 F.2D 176 (C.A. 4TH CIR.).  IN
THE FORMER CASE THE COURT OBSERVED, IN HOLDING AN EXCLUSIVE FRANCHISE
ARRANGEMENT NOT VIOLATIVE OF THE SHERMAN ACT: 

"THE SHORT OF IT IS THAT A RELATIVELY SMALL MANUFACTURER, COMPETING
WITH LARGE MANUFACTURERS, THOUGHT IT ADVANTAGEOUS TO RETAIN ITS LARGEST
DEALER IN BALTIMORE, AND COULD NOT DO SO WITHOUT AGREEING TO DROP ITS
OTHER BALTIMORE DEALERS.  TO PENALIZE THE SMALL MANUFACTURER FOR
COMPETING IN THIS WAY NOT ONLY FAILS TO PROMOTE THE POLICY OF THE
ANTITRUST LAWS BUT DEFEATS IT."  100 U.S. APP. D.C., AT 164, 243 F.2D,
AT 421.  THE DOCTRINE OF THE PACKARD AND SCHWING CASES IS, HOWEVER, OF
NECESSARILY LIMITED SCOPE; NOT ONLY WERE THE MANUFACTURERS INVOLVED
MUCH SMALLER THAN THE "BIG THREE" OF THE AUTOMOBILE INDUSTRY AGAINST
WHOM THEY COMPETED, BUT BOTH HAD EXPERIENCED DECLINES IN THEIR
RESPECTIVE MARKET SHARES.  AND THE EXCLUSIVE FRANCHISES INVOLVED IN
THOSE CASES APPARENTLY WERE NOT ACCOMPANIED BY TERRITORIAL
LIMITATIONS.  SEE JORDAN, SUPRA, NOTE 6, AT 135-139.  SEE, FOR
CONSIDERATION OF A SIMILAR PROBLEM BY THE FEDERAL TRADE COMMISSION,
COLUMBUS COATED FABRICS CORP., 55 F.T.C. 1500, 1503-1504. 

FN9  IF THE RESTRAINT IS SHOWN TO BE EXCESSIVE FOR THE MANUFACTURER'S
NEEDS, THEN ITS PRESENCE INVITES SUSPICION EITHER THAT DEALER PRESSURES
RATHER THAN MANUFACTURER INTERESTS BROUGHT IT ABOUT, OR THAT THE REAL
PURPOSE OF ITS ADOPTION WAS TO RESTRICT PRICE COMPETITION, CF. ETHYL
GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 457-459; UNITED STATES
V. MASONITE CORP., SUPRA.  SEE TURNER, SUPRA, NOTE 6, AT 698-699, 704
705. 

FN10  IN ITS COMPLAINT, THE GOVERNMENT CHARGED THAT ANY DEALER OR
DISTRIBUTOR WHO SELLS IN ANOTHER'S RESERVED TERRITORY MUST PAY TO THE
INJURED DISTRIBUTOR "A SPECIFIED AMOUNT OF MONEY FOR VIOLATION OF SAID
EXCLUSIVE TERRITORY  ...  ."  THERE HAS BEEN NO SUGGESTION IN THIS CASE
THAT MORE DRASTIC SANCTIONS, SUCH AS WITHDRAWAL OR CANCELLATION OF A
FRANCHISE, HAVE EVER BEEN INVOKED BY THE APPELLANT TO CHECK CROSS
SELLING.  THE PASS-OVER PROVISIONS CONTAINED IN THE TYPICAL WHITE
CONTRACT (IN A PROVISION GOVERNING "ADJUSTMENT ON OUTSIDE DELIVERIES")
SEEM REPRESENTATIVE OF EXCLUSIVE TERRITORY SANCTIONS GENERALLY
EMPLOYED.  SEE NOTE, RESTRICTED CHANNELS OF DISTRIBUTION UNDER THE
SHERMAN ACT, 75 HARV. L. REV. 795, 814-816 (1962). 

FN11  THE DISTRICT COURT SUGGESTED, 194 F. SUPP., AT 585-586, AND THE
GOVERNMENT SEEMS TO CONCEDE, THAT CERTAIN TYPES OF EXCLUSIVE FRANCHISES
WOULD NOT VIOLATE THE SHERMAN ACT, ALTHOUGH A DETERMINATION OF THE
LEGALITY OF SUCH ARRANGEMENTS WOULD SEEM ALSO TO REQUIRE AN EXAMINATION
OF THEIR OPERATION AND EFFECT.    FN12  SEE SNAP-ON TOOLS CORP., FTC
DOCKET NO. 7116, 3 CCH TRADE REG. REP. PARA. 15,546, P. 20,414.   A
NUMBER OF CONSENT DECREES HAVE RECENTLY RECOGNIZED THE LAWFULNESS OF
AREA-OF-PRIMARY-RESPONSIBILITY COVENANTS AS SUBSTITUTES FOR THE MORE
RESTRICTIVE EXCLUSIVE ARRANGEMENTS.  SEE, E.G., UNITED STATES V.
BOSTITCH, INC., CCH 1958 TRADE CASES PARA. 69,207 (D.C.D.R.I.); UNITED
STATES V. RUDOLPH WURLITZER CO., CCH 1958 TRADE CASES PARA. 69,011
(D.C.W.D.N.Y.).  THE THRUST OF SUCH PROVISIONS IS, HOWEVER, ONLY THAT
THE DEALER MUST ADEQUATELY REPRESENT THE MANUFACTURER IN THE ASSIGNED
AREA, NOT THAT HE MUST STAY OUT OF OTHER AREAS.  SEE GENERALLY 60 MICH.
L. REV. 1008 (1962). 

FN13  THE ESSENTIAL QUESTION WHETHER SUCH RESTRAINTS EXCEED THE
APPELLANT'S COMPETITIVE NEEDS CANNOT BE ANSWERED, AS THE GOVERNMENT
SUGGESTS, SIMPLY BY REFERENCE TO THE VIEWS OF MAJOR AUTOMOBILE
MANUFACTURERS THAT TERRITORIAL LIMITATIONS ARE UNNECESSARY TO ENSURE
EFFECTIVE PROMOTION AND SERVICING FOR THEIR PRODUCTS.  SEE HEARINGS
BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON AUTOMOBILE MARKETING LEGISLATION, 84TH CONG., PP. 160, 248,
285, 323. 

FN14  IN AN ANALOGOUS CASE, BROUGHT UNDER SEC. 5 OF THE FEDERAL TRADE
COMMISSION ACT, THE COMMISSION DISMISSED THE COMPLAINT BECAUSE OF
INSUFFICIENT EVIDENCE THAT CUSTOMER LIMITATIONS HAD FORECLOSED
MEANINGFUL COMPETITION.  IN THE MATTER OF ROUX DISTRIBUTING CO., 55
F.T.C. 1386.  THE FINDING THAT NON-CONTRACTUAL CUSTOMER RESTRICTIONS
HAD A CLEARLY ANTICOMPETITIVE EFFECT IN UNITED STATES V. KLEARFLAX
LINEN LOOMS, INC., 63 F. SUPP. 32, WAS ONE WHICH COULD SEEMINGLY NOT
HAVE BEEN MADE WITHOUT A TRIAL ON THE MERITS, EVEN THOUGH THE
MANUFACTURER INVOLVED HELD A POSITION OF VIRTUAL MONOPOLY.  SEE NOTE,
RESTRICTED CHANNELS OF DISTRIBUTION UNDER THE SHERMAN ACT, 75 HARV. L.
REV. 795, 817-818 (1962). 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE BLACK
JOIN, DISSENTING. 

THE COURT IS RELUCTANT TO DECLARE VERTICAL TERRITORIAL ARRANGEMENTS
ILLEGAL PER SE BECAUSE "THIS IS THE FIRST CASE INVOLVING A TERRITORIAL
RESTRICTION IN A VERTICAL ARRANGEMENT; AND WE KNOW TOO LITTLE OF THE
ACTUAL IMPACT  ...  OF THAT RESTRICTION  ...  TO REACH A CONCLUSION ON
THE BARE BONES OF THE DOCUMENTARY EVIDENCE BEFORE US."  THE "BARE
BONES" CONSIST OF THE COMPLAINT AND ANSWER, EXCERPTS FROM
INTERROGATORIES, EXHIBITS AND DEPOSITION OF THE SECRETARY OF WHITE
MOTOR ON BEHALF OF THE GOVERNMENT, TAKEN IN 1959, THE FORMAL MOTION OF
THE GOVERNMENT FOR SUMMARY JUDGMENT AND AN EXCERPT ENTITLED "ARGUMENT"
FROM THE BRIEF OF WHITE MOTOR IN OPPOSITION THERETO.  I BELIEVE THAT
THESE "BARE BONES" REALLY LAY BARE ONE OF THE MOST BRAZEN VIOLATIONS OF
THE SHERMAN ACT THAT I HAVE EXPERIENCED IN A QUARTER OF A CENTURY. 

THIS "ARGUMENT," WHICH THE APPELLANT HAS CONVINCED THE COURT RAISES A
FACTUAL ISSUE REQUIRING A TRIAL, POINTS OUT THAT EACH DISTRIBUTOR IS
REQUIRED TO MAINTAIN A SALES ROOM, SERVICE STATION AND A REPRESENTATIVE
NUMBER OF WHITE TRUCKS.  "IN RETURN FOR THESE AGREEMENTS OF THE
DISTRIBUTOR ...  IT IS ONLY FAIR AND REASONABLE AND, IN FACT, NECESSARY
...  THAT THE DISTRIBUTOR SHALL BE PROTECTED IN SAID DISTRIBUTOR'S
TERRITORY AGAINST SELLING THEREIN BY DEFENDANT'S OTHER DISTRIBUTORS ...
WHO HAVE NOT MADE THE INVESTMENT OF MONEY AND EFFORT  ... IN THE SAID
TERRITORY."  LIKEWISE, APPELLANT'S ARGUMENT CONTINUES, "SIMILAR
PROVISIONS IN DIRECT DEALERS' CONTRACTS AND IN CONTRACTS BETWEEN THE
DISTRIBUTORS AND THEIR RESPECTIVE DEALERS HAVE THE SAME PURPOSES AND
THE SAME EFFECTS."  THESE LIMITATIONS HAVE "THE PURPOSE AND EFFECT OF
PROMOTING THE BUSINESS AND INCREASING THE SALES OF WHITE TRUCKS IN
COMPETITION WITH THE WHITE MOTOR COMPANY'S POWERFUL COMPETITORS." 
EMPHASIZING THAT THE MOTOR-TRUCK MANUFACTURING INDUSTRY IS ONE OF "THE
MOST HIGHLY COMPETITIVE INDUSTRIES IN THIS COUNTRY," APPELLANT POINTS
UP THAT ITS SHARE "IS VERY SMALL" AND "BY NO STRETCH OF THE
IMAGINATION, COULD BE SAID TO DOMINATE THE MARKET IN TRUCKS."  IT
INSISTS THAT THERE ARE BUT TWO WAYS TO MARKET TRUCKS: (1) SELLING TO
THE PUBLIC THROUGH ITS OWN SALES AND SERVICE STATIONS, AND (2) THROUGH
THE DISTRIBUTOR-DEALER DISTRIBUTION SYSTEM WHICH IT PRESENTLY FOLLOWS. 
IT DISCARDS THE FIRST AS BEING "FEASIBLE ONLY FOR A VERY LARGE
COMPANY."  AS TO THE SECOND, THE DISTRUBUTORS AND DEALERS MUST NOT BE
ALLOWED TO SPREAD THEIR EFFORTS "TOO THINLY OVER MORE TERRITORY THAN
THEY CAN VIGOROUSLY AND INTENSIVELY WORK."  IT IS THEREFORE NECESSARY,
APPELLANT SAYS, "TO CONFINE THEIR EFFORTS TO A TERRITORY NO LARGER THAN
THEY HAVE THE FINANCIAL MEANS AND SALES AND SERVICE FACILITIES AND
CAPABILITIES TO INTENSIVELY CULTIVATE  ...  ."  IN RETURN "IT IS ONLY
FAIR AND REASONABLE, AND INDEED NECESSARY, THAT THE WHITE MOTOR COMPANY
PROTECT ITS DEALERS AND DISTRIBUTORS IN THEIR RESPECTIVE ALLOTTED
TERRITORIES AGAINST THE EXPLOITATION BY OTHER WHITE DISTRIBUTORS OR
DEALERS, AND INDEED BY THE COMPANY ITSELF  ...  ."  IN ORDER TO PROCURE
"DISTRIBUTORS AND DEALERS THAT WILL ADEQUATELY REPRESENT THE WHITE
MOTOR COMPANY'S LINE OF MOTOR TRUCKS, IT HAS TO AGREE THAT THESE MEN
SHALL BE EXCLUSIVE SALES REPRESENTATIVES IN A GIVEN TERRITORY."  FOR
THIS REASON APPELLANT "WILL NOT ALLOW ANY OTHER OF ITS DISTRIBUTORS OR
DEALERS TO COME INTO THE TERRITORY AND SCALP THE MARKET FOR WHITE
TRUCKS THEREIN."  RATHER THAN "CUTTING EACH OTHER'S THROATS" WHITE
MOTOR INSISTS THAT THEY "CONCENTRATE ON TRYING TO TAKE SALES AWAY FROM
OTHER COMPETING TRUCK MANUFACTURERS  ...  ."  THE NET EFFECT OF ITS
JUSTIFICATION FOR THE TERRITORIAL ALLOCATION IS THAT "THESE LIMITATIONS
HAVE PROPER PURPOSES AND EFFECTS AND ARE FAIR AND REASONABLE  ...  ." 

ON THE PRICE-FIXING REQUIREMENT IN THE CONTRACTS, WHICH WHITE MOTOR
HAS ABANDONED ON APPEAL, THE "ARGUMENT" POINTS OUT THAT THIS
REQUIREMENT WAS LIMITED TO ABOUT 5% OF ITS SALES AND WAS NOT FOLLOWED
IN SALES TO THE PUBLIC.  JUSTIFICATION FOR ITS USE OTHERWISE WAS THAT
IT INSURED THAT ALL OF ITS AGENTS "GET AN EQUAL BREAK PRICEWISE," WHICH
WAS A NECESSARY STEP TO HAVING "SATISFIED AND EFFICIENT DEALER
ORGANIZATIONS."  AS TO THE REQUIRED DISCOUNTS PROVISION ON REPAIR PARTS
AND ACCESSORIES, IT SAYS THAT THESE ARE NECESSARY "IF THE DEFENDANT'S
FUTURE SALES TO 'NATIONAL ACCOUNTS,' 'FLEET ACCOUNTS' AND FEDERAL AND
STATE GOVERNMENTS  ...  AND POLITICAL SUBDIVISIONS  ... ARE NOT TO BE
SERIOUSLY JEOPARDIZED."  AFTER ALL, IT SAYS, "PROBABLY NOTHING WILL
MAKE THE OWNER OF A MOTOR VEHICLE SO PEEVED AS TO BE OVERCHARGED FOR
REPAIR PARTS AND ACCESSORIES." 

THE SITUATION IN WHICH WHITE MOTOR FINDS ITSELF MAY BE SUMMED UP IN
ITS OWN WORDS, I.E., THAT ITS CONTRACTS ARE "THE ONLY FEASIBLE WAY FOR
(IT) TO COMPETE EFFECTIVELY WITH ITS BIGGER AND MORE POWERFUL
COMPETITORS  ...  ."  IN THIS JUSTIFICATION IT ATTEMPTS BUT TO MAKE A
VIRTUE OF BUSINESS NECESSITY, WHICH HAS LONG BEEN REJECTED AS A DEFENSE
IN SUCH CASES.  SEE DR. MILES MEDICAL CO. V. JOHN D. PARK & SONS CO.,
220 U.S. 373, 407-408 (1911); FASHION ORIGINATORS' GUILD V. FEDERAL
TRADE COMM'N, 312 U.S. 457, 467-468 (1941), AND NORTHERN PAC. R. CO. V.
UNITED STATES, 356 U.S. 1, 5 (1958).  THIS IS TRUE BECAUSE THE PURPOSE
OF THESE PROVISIONS IN ITS CONTRACTS AS SHOWN BY WHITE MOTOR'S OWN
"ARGUMENT" IS TO ENABLE IT TO COMPETE WITH ITS "POWERFUL COMPETITORS"
AND "PROTECT ITS DEALERS AND DISTRIBUTORS IN THEIR RESPECTIVE ALLOTTED
TERRITORIES AGAINST THE EXPLOITATION BY OTHER WHITE DISTRIBUTORS OR
DEALERS" AND THUS PREVENT THEM FROM "CUTTING EACH OTHER'S THROATS." 
THESE GROUNDS FOR ITS ACTION MAY BE GOOD FOR WHITE MOTOR BUT THEY ARE
DISASTROUS FOR FREE COMPETITIVE ENTERPRISE AND, IF PERMITTED, WILL
DESTROY THE EFFECTIVENESS OF THE SHERMAN ACT.  FOR UNDER THESE
CONTRACTS A PERSON WISHING TO BUY A WHITE TRUCK MUST DEAL WITH ONLY ONE
SELLER WHO BY VIRTUE OF HIS AGREEMENTS WITH DEALER COMPETITORS HAS THE
SOLE POWER AS TO THE PUBLIC TO SET PRICES, DETERMINE TERMS AND EVEN TO
REFUSE TO SELL TO A PARTICULAR CUSTOMER.  IN THE LATTER EVENT THE
CUSTOMER COULD NOT BUY A WHITE TRUCK BECAUSE A NEIGHBORING DEALER MUST
REJECT HIM UNDER THE WHITE MOTOR CONTRACT UNLESS HE HAS "A PLACE OF
BUSINESS AND/OR PURCHASING HEADQUARTERS" IN THE LATTER'S TERRITORY.  HE
MIGHT BUT ANOTHER BRAND OF TURCK, IT IS TRUE, BUT THE EXISTENCE OF
INTERBRAND COMPETITION HAS NEVER BEEN A JUSTIFICATION FOR AN EXPLICIT
AGREEMENT TO ELIMINATE COMPETITION.  SEE UNITED STATES V. MCKESSON &
ROBBINS, INC., 351 U.S. 305 (1956).  LIKEWISE EACH WHITE MOTOR DEALER
IS ISOLATED FROM ALL COMPETITION WITH OTHER WHITE MOTOR DEALERS.  ONE
CANNOT MAKE A SALE OR PURCHASE OF A WHITE MOTOR TRUCK OUTSIDE OF HIS
OWN TERRITORY.  HE IS CONFINED TO HIS OWN ECONOMIC ISLAND. 

I HAVE DILIGENTLY SEARCHED APPELLANT'S OFFER OF PROOF BUT FAIL TO
FIND ANY ALLEGATION BY IT THAT RAISES AN ISSUE OF FACT.  ALL OF ITS
STATEMENTS ARE ECONOMIC ARGUMENTS OR BUSINESS NECESSITIES NONE OF WHICH
HAVE ANY BEARING ON THE LEGAL ISSUE.  IT CLEARLY APPEARS FROM ITS
CONTRACTS THAT "ALL ROOM FOR COMPETITION BETWEEN RETAILERS (DEALERS),
WHO SUPPLY THE PUBLIC, IS MADE IMPOSSIBLE."  JOHN D. PARK & SONS CO. V.
HARTMAN, 153 F. 24, 42 (C.A. 6TH CIR.), OPINION BY MR. JUSTICE LURTON,
THEN CIRCUIT JUDGE, AND ADOPTED BY MR. JUSTICE HUGHES, LATER CHIEF
JUSTICE, IN DR. MILES MEDICAL CO. V. JOHN D. PARK & SONS CO., SUPRA, AT
400 (1911).  I HAVE READ AND RE-READ APPELLANT'S "ARGUMENT" AND EVEN
THOUGH I GIVE IT THE DIGNITY OF PROOF I RETURN TO THE CONCLUSION, AS
DID MR. JUSTICE LURTON, THAT "IF THESE CONTRACTS LEAVE ANY ROOM AT ANY
POINT OF THE LINE FOR THE USUAL PLAY OF COMPETITION BETWEEN THE DEALERS
...  IT IS NOT DISCOVERABLE."  IBID. 

THIS COURT, IT IS TRUE, HAS NEVER HELD WHETHER THERE IS A DIFFERENCE
BETWEEN MARKET DIVISIONS VOLUNTARILY UNDERTAKEN BY A MANUFACTURER SUCH
AS WHITE MOTOR AND THOSE OF DEALERS IN A COMMODITY, AGREED UPON BY
THEMSELVES, SUCH AS WERE CONDEMNED IN TIMKEN ROLLER BEARING CO. V.
UNITED STATES, 341 U.S. 593 (1951).  WHITE DOES NOT CONTEND THAT ITS
DISTRIBUTION SYSTEM HAS ANY LESS TENDENCY TO RESTRAIN COMPETITION AMONG
ITS DISTRIBUTORS AND DEALERS THAN A HORIZONTAL AGREEMENT AMONG SUCH
DISTRIBUTORS AND DEALERS THEMSELVES.  IT SEEMS TO PLACE SOME HALO
AROUND ITS AGREEMENTS BECAUSE THEY ARE VERTICAL.  BUT THE INTENDED AND
ACTUAL EFFECT IS THE SAME AS, IF NOT EVEN MORE DESTRUCTIVE THAN, A
PRICE-FIXING AGREEMENT OR ANY OF ITS PER SE COUNTERPARTS.  THIS IS TRUE
BECAUSE PRICE-FIXING AGREEMENTS, BEING MORE EASILY BREACHED, MUST BE
CONTINUALLY POLICED BY THOSE FORMING THE COMBINATION, WHILE CONTRACTS
FOR A DIVISION OF TERRITORY, BEING EASILY DETECTED, ARE PRACTICALLY
SELF-ENFORCING.  MOREOVER, WHITE MOTOR HAS ADMITTED THAT EACH OF ITS
DISTRIBUTORS AND DEALERS, NUMBERING SOME 300, HAS ENTERED INTO
IDENTICAL CONTRACTS.  IN ITS "ARGUMENT" IT SAYS THAT "IT HAS TO" AGREE
TO THESE EXCLUSIVE TERRITORIAL ARRANGEMENTS IN ORDER TO GET FINANCIALLY
ABLE AND CAPABLE DISTRIBUTORS AND DEALERS.  IT HAS NOWISE DENIED THAT
IT HAS BEEN REQUIRED BY THE DISTRIBUTORS OR DEALERS TO ENTER INTO THE
CONTRACTS.  INDEED THE CLEAR INFERENCE IS TO THE CONTRARY.  THE
MOTIVATIONS OF WHITE MOTOR AND ITS DISTRIBUTORS AND DEALERS ARE
INEXTRICABLY INTERTWINED; THE DISTRIBUTORS AND DEALERS ARE EACH
ACQUAINTED WITH THE CONTRACTS AND HAVE READILY COMPLIED WITH THEIR
REQUIREMENTS, WITHOUT WHICH THE CONTRACTS WOULD BE OF NO EFFECT.  IT IS
HARD FOR ME TO DRAW A DISTINCTION ON THE BASIS OF WHO INITIATES SUCH A
PLAN.  INDEED, UNDER INTERSTATE CIRCUIT, INC., V. UNITED STATES, 306
U.S. 208, 223 (1939), THE UNANIMITY OF ACTION BY SOME 300 PARTIES HERE
FORMS THE BASIS OF AN "UNDERSTANDING THAT ALL WERE TO JOIN" AND THE
ECONOMICS OF THE SITUATION WOULD CERTAINLY REQUIRE AS MUCH.  THERE THIS
COURT ON A MUCH WEAKER FACTUAL BASIS HELD: 

"IT TAXES CREDULITY TO BELIEVE THAT THE SEVERAL DISTRIBUTORS WOULD,
IN THE CIRCUMSTANCES, HAVE ACCEPTED AND PUT INTO OPERATION WITH
SUBSTANTIAL UNANIMITY SUCH  ...  METHODS WITHOUT SOME UNDERSTANDING
THAT ALL WERE TO JOIN, AND WE REJECT AS BEYOND THE RANGE OF PROBABILITY
THAT IT WAS THE RESULT OF MERE CHANCE." 

LIKEWISE, THE OTHER RESTRICTIONS IN THE CONTRACTS RUN COUNTER TO THE
SHERMAN ACT.  THIS COURT HAS HELD THE RESTRICTION ON THE WITHHOLDING OF
CUSTOMERS TO BE ILLEGAL AS A CONTRACT BETWEEN POTENTIAL COMPETITORS NOT
TO COMPETE, UNITED STATES V. MCKESSON & ROBBINS, INC., SUPRA, AT 312
(1956), AND WHITE MOTOR'S PROHIBITION ON RESALES WITHOUT ITS APPROVAL
IS CONDEMNED BY UNITED STATES V. BAUSCH & LOMB CO., 321 U.S. 707, 721
(1944).  EXPERIENCE, AS WELL AS OUR CASES, HAS SHOWN THAT THESE
RESTRICTIONS HAVE A "PERNICIOUS EFFECT ON COMPETITION AND LACK  ...
ANY REDEEMING VIRTUE  ...  ."  NORTHERN PAC. R. CO. V. UNITED STATES,
SUPRA, AT 5. 

THE COURT SAYS THAT PERHAPS THE REASONABLENESS OR THE EFFECT OF SUCH
ARRANGEMENTS MIGHT BE SUBJECT TO INQUIRY.  BUT THE RULE OF REASON IS
INAPPLICABLE TO AGREEMENTS MADE SOLELY FOR THE PURPOSE OF ELIMINATING
COMPETITION.  UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150
(1940)(PRICE FIXING); FASHION ORIGINATORS' GUILD V. FEDERAL TRADE
COMM'N, SUPRA (GROUP BOYCOTTS); INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392 (1947), AND UNITED STATES V. NATIONAL LEAD CO.,
332 U.S. 319 (1947)(TYING ARRANGEMENTS); TIMKEN ROLLER BEARING CO. V.
UNITED STATES, SUPRA; NATIONWIDE TRAILER RENTAL SYSTEM V. UNITED
STATES, 355 U.S. 10 (1957), AFFIRMING 156 F. SUPP. 800 (D.C.D. KAN.
1957), AND UNITED STATES V. NATIONAL LEAD CO., SUPRA (DIVISION OF
MARKETS).  THE SAME RULE APPLIES TO THE CONTRACTS HERE.  THE OFFERED
JUSTIFICATION MUST FAIL BECAUSE IT INVOLVES A CONTENTION CONTRARY TO
THE PUBLIC POLICY OF THE SHERMAN ACT, WHICH IS THAT THE SUPPRESSION OF
COMPETITION IS IN AND OF ITSELF A PUBLIC INJURY.  TO ADMIT, AS DOES THE
PETITIONER, THAT COMPETITION IS ELIMINATED UNDER ITS CONTRACTS IS,
UNDER OUR CASES, TO ADMIT A VIOLATION OF THE SHERMAN ACT.  NO
JUSTIFICATION, NO MATTER HOW BENEFICIAL, CAN SAVE IT FROM THAT
INTERDICTION.    THE THRUST OF APPELLANT'S CONTENTION SEEMS TO BE IN
ESSENCE THAT IT CANNOT MARKET ITS TRUCKS PROFITABLY WITHOUT THE
ADVANTAGE OF THE RESTRICTIVE COVENANTS.  I NOTE THAT OTHER MOTOR CAR
MANUFACTURERS - INCLUDING THE "BIG THREE" - ABANDONED THE PRACTICE OVER
A DECADE AGO.  ONE OF THESE, AMERICAN MOTORS, TOLD THE EIGHTY-FOURTH
CONGRESS, BEFORE WHICH LEGISLATION WAS PENDING TO PERMIT DIVISION OF
TERRITORY, (FN1) THAT IS WAS "NOT IN FAVOR OF ANY LEGISLATION,
PERMISSIVE OR OTHERWISE, THAT RESTRICTS THE RIGHT OF THE CUSTOMER TO
CHOOSE ANY DEALERS FROM WHOM HE DESIRES TO PURCHASE."  HEARINGS BEFORE
A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON AUTOMOBILE MARKETING LEGISLATION, 84TH CONG., P. 285. 
AMERICAN MOTORS SEEMS TO HAVE BEEN ABLE TO SURVIVE AND PROSPER AGAINST
"BIG THREE" COMPETITION.  BUT EVEN THOUGH WHITE MOTOR GAINS AN
ADVANTAGE THROUGH THE USE OF THE RESTRICTIONS, "THE QUESTION REMAINS
WHETHER IT IS ONE WHICH IT IS ENTITLED TO SECURE BY AGREEMENTS
RESTRICTING THE FREEDOM OF TRADE ON THE PART OF DEALERS WHO OWN WHAT
THEY SELL."  DR. MILES MEDICAL CO., SUPRA, AT 407-408.  AND, MR.
JUSTICE HUGHES CONTINUED: 

"AS TO THIS, THE COMPLAINANT CAN FARE NO BETTER WITH ITS PLAN OF
IDENTICAL CONTRACTS THEN COULD THE DEALERS THEMSELVES IF THEY FORMED A
COMBINATION AND ENDEAVORED TO ESTABLISH THE SAME RESTRICTIONS, AND THUS
TO ACHIEVE THE SAME RESULT, BY AGREEMENT WITH EACH OTHER.  IF THE
IMMEDIATE ADVANTAGE THEY WOULD THUS OBTAIN WOULD NOT BE SUFFICIENT TO
SUSTAIN SUCH A DIRECT AGREEMENT, THE ASSERTED ULTERIOR BENEFIT TO THE
COMPLAINANT CANNOT BE REGARDED AS SUFFICIENT TO SUPPORT ITS SYSTEM." 
ID., AT 408. 

THE MILK IN THE COCONUT IS THAT WHITE MOTOR "HAVING SOLD ITS PRODUCT
AT PRICES SATISFACTORY TO ITSELF, THE PUBLIC IS ENTITLED TO WHATEVER
ADVANTAGE MAY BE DERIVED FROM COMPETITION IN THE SUBSEQUENT TRAFFIC." 
ID., AT 409. 

TODAY THE COURT DOES A FUTILE ACT IN REMANDING THIS CASE FOR TRIAL. 
IN MY VIEW APPELLANT CANNOT PLEAD NOR PROVE AN ISSUE UPON WHICH A
SUCCESSFUL DEFENSE OF ITS CONTRACTS CAN BE PREDICATED.  NEITHER TIME (I
NOTE THE CASE IS NOW IN ITS SIXTH YEAR) NOR ALL OF THE ECONOMIC
ANALYSTS, THE STATISTICIANS, THE EXPERTS IN MARKETING, OR FOR THAT
MATTER THE INGENUITY OF LAWYERS, CAN ESCAPE THE UNALTERABLE FACT THAT
THESE CONTRACTS ELIMINATE COMPETITION AND UNDER OUR CASES ARE VOID. 
THE NET EFFECT OF THE REMAND IS THEREFORE BUT TO EXTEND FOR PERHAPS AN
ADDITIONAL FIVE YEARS WHITE MOTOR'S ENJOYMENT OF THE FRUITS OF ITS
ILLEGAL ACTION.  CERTAINLY THE DECISION HAS NO PRECEDENTIAL VALUE (FN2)
IN SUBSTANTIVE ANTITRUST LAW. 

FN1  H.R. 6544, 84TH CONG., 1ST SESS.  THE BILL WAS NEVER REPORTED
FROM THE COMMITTEE. 

FN2  OUR RECENT CERTIFICATION OF THE AMENDMENT TO THE SUMMARY
JUDGMENT PROCEDURE UNDER RULE 56, QUOTED IN THE COURT'S OPINION, WILL
ELIMINATE THE PROBLEM POSED HERE, I.E., THE SUFFICIENCY OF THE RECORD. 

..END :








BROTHERHOOD OF LOCOMOTIVE ENGINEERS V. BALTIMORE & OHIO RAILROAD CO. 372
U.S. 284 


NO. 730.  DECIDED MARCH 4, 1963.  - 310 F.2D 503, AFFIRMED. 


PURSUANT TO SEC. 6 OF THE RAILWAY LABOR ACT, RESPONDENT RAILROADS
SERVED ON PETITIONERS, UNIONS OF OPERATING EMPLOYEES, NOTICES OF
INTENDED CHANGES IN AGREEMENTS AFFECTING RATES OF PAY, RULES AND
WORKING CONDITIONS.  AFTER LENGTHY NEGOTIATIONS HAD FAILED TO PRODUCE
AGREEMENT CONCERNING THE PROPOSED CHANGES, THE PARTIES AGREED TO THE
CREATION OF A PRESIDENTIAL RAILROAD COMMISSION TO INVESTIGATE AND
REPORT ON THE CONTROVERSY AND TO USE ITS BEST EFFORTS TO BRING ABOUT AN
AMICABLE SETTLEMENT BY MEDIATION.  THE APPOINTMENT AND EFFORTS OF SUCH
A COMMISSION HAVING FAILED TO PRODUCE AGREEMENT, THE UNIONS APPLIED FOR
THE SERVICES OF THE NATIONAL MEDIATION BOARD UNDER SEC. 5.  MANY
MEETINGS BETWEEN THE PARTIES UNDER THE AUSPICES OF THAT BOARD HAVING
FAILED TO PRODUCE AGREEMENT, AND THE UNIONS HAVING REFUSED TO SUBMIT
THE DISPUTE TO ARBITRATION, THE BOARD TERMINATED ITS SERVICES.  THE
RAILROADS THEN SERVED NOTICE ON THE UNIONS THAT THE PROPOSED CHANGES
WOULD BE PLACED IN EFFECT 30 DAYS LATER.  THE UNIONS SUED IN A FEDERAL
DISTRICT COURT FOR A JUDGMENT THAT THE PROPOSED RULE CHANGES WOULD
VIOLATE THE ACT.  THE DISTRICT COURT DISMISSED THE COMPLAINT AFTER
FINDING THAT BOTH PARTIES HAD EXHAUSTED ALL PROCEDURES AVAILABLE UNDER
THE ACT AND THAT, THEREFORE, THEY WERE FREE TO RESORT TO SELF-HELP,
SUBJECT ONLY TO THE APPOINTMENT OF AN EMERGENCY BOARD BY THE PRESIDENT
UNDER SEC. 10.  THE COURT OF APPEALS AFFIRMED, AND THE UNIONS
PETITIONED THIS COURT FOR CERTIORARI.  HELD:  CERTIORARI IS GRANTED AND
THE JUDGMENT IS AFFIRMED.  PP. 285-291. 

(A)  THE COURTS BELOW CORRECTLY REJECTED THE CONTENTION OF THE UNIONS
THAT THE STANDARDS CONTAINED IN THE RAILROADS' NOTICES VIOLATED THE
ACT, SINCE THE ACT DOES NOT FIX AND DOES NOT AUTHORIZE ANYONE TO FIX
GENERALLY APPLICABLE STANDARDS FOR WORKING CONDITIONS.  PP. 289-290. 

(B)  THE RECORD SUSTAINS THE FINDINGS OF BOTH LOWER COURTS THAT THE
PARTIES HAVE EXHAUSTED THE PROCEDURES PROVIDED BY THE ACT FOR MAJOR
DISPUTES SUCH AS THAT INVOLVED HERE AND THAT THE PARTIES ARE RELEGATED
TO SELF-HELP IN ADJUSTING THIS DISPUTE, SUBJECT ONLY TO THE INVOCATION
OF THE PROVISIONS OF SEC. 10, PROVIDING FOR THE CREATION OF AN
EMERGENCY BOARD.  PP. 290-291. 

BROTHERHOOD OF LOCOMOTIVE ENGINEERS ET AL. V. BALTIMORE & OHIO RAILROAD
CO. ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

CERTIORARI IS GRANTED AND THE JUDGMENT OF THE COURT OF APPEALS IS
AFFIRMED FOR THE REASONS STATED IN THIS OPINION. 

THE PETITIONERS, HEREINAFTER REFERRED TO AS THE ORGANIZATIONS, ARE
THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS, BROTHERHOOD OF LOCOMOTIVE
FIREMEN AND ENGINEMEN, ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN,
BROTHERHOOD OF RAILROAD TRAINMEN, AND SWITCHMEN'S UNION OF NORTH
AMERICA.  THE RESPONDENTS, HEREINAFTER REFERRED TO AS THE CARRIERS, ARE
THE BALTIMORE & OHIO RAILROAD COMPANY AND 15 OTHER NAMED RAILROAD
COMPANIES, AS REPRESENTATIVES OF A CLASS OF MORE THAN 200 SUCH
COMPANIES. 

IN FEBRUARY OF 1959, THE ASSOCIATION OF AMERICAN RAILROADS PROPOSED
THE CREATION OF A PRESIDENTIAL COMMISSION TO INVESTIGATE AND REPORT ON
THE POSSIBILITY OF A RADICAL OVERHAUL OF WORKING RULES AFFECTING THE
ORGANIZATIONS AND THEIR MEMBERS IN THE LIGHT OF SUBSTANTIAL
TECHNOLOGICAL CHANGES IN THE RAILROAD INDUSTRY.  THE BASIS FOR THIS
PROPOSAL WAS THAT "  ...  DRAWING UP SOUND NEW WORK STANDARDS FOR THE
RAILROAD INDUSTRY HAS BECOME SO COMPLEX AND CHALLENGING THAT THE
MACHINERY PROVIDED FOR SETTLING ORDINARY DISPUTES APPEARS HOPELESSLY
INADEQUATE TO COPE WITH THIS TASK."  THE ORGANIZATIONS OPPOSED THIS
PROPOSAL, AND THE PRESIDENT OF THE UNITED STATES, IN SEPTEMBER OF 1959,
REFUSED TO APPOINT SUCH A COMMISSION. 

ON NOVEMBER 2 OF THAT YEAR, PURSUANT TO SEC. 6 OF THE RAILWAY LABOR
ACT, (FN1) THE CARRIERS SERVED ON THE ORGANIZATIONS NOTICES OF INTENDED
CHANGES IN AGREEMENTS AFFECTING RATES OF PAY, RULES, AND WORKING
CONDITIONS.  AFTER CONFERENCES BOTH ON INDIVIDUAL RAILROADS AND ON A
NATIONAL LEVEL HAD FAILED TO PRODUCE AGREEMENT CONCERNING THE PROPOSED
CHANGES, THE ORGANIZATIONS AND THE CARRIERS IN OCTOBER OF 1960, UNDER
THE AUSPICES OF THE SECRETARY OF LABOR, AGREED TO THE CREATION OF A
PRESIDENTIAL RAILROAD COMMISSION WHICH WAS TO INVESTIGATE AND REPORT ON
THE CONTROVERSY, AND WAS ALSO AUTHORIZED "TO USE ITS BEST EFFORTS, BY
MEDIATION, TO BRING ABOUT AN AMICABLE SETTLEMENT  ... ."  (FN2)  THE
PARTIES AGREED THAT THE PROCEEDINGS OF THE COMMISSION WERE TO BE
ACCEPTED "  ...  AS IN LIEU OF THE MEDIATION AND EMERGENCY BOARD
PROCEDURES PROVIDED BY SECTIONS 5 AND 10 OF THE RAILWAY LABOR ACT." 
THE COMMISSION WAS CREATED BY EXECUTIVE ORDER 10891 IN NOVEMBER OF
1960, AND ITS MEMBERS WERE APPOINTED IN DECEMBER OF THAT YEAR. 

THE REPORT AND RECOMMENDATIONS OF THE COMMISSION WERE DELIVERED TO
THE PRESIDENT ON FEBRUARY 28, 1962, AND NATIONAL CONFERENCES ON THE
ISSUES WHICH REMAINED IN DISPUTE RESUMED ON APRIL 2 AND CONTINUED
THROUGH MAY 17.  NO AGREEMENT HAVING BEEN REACHED, THE ORGANIZATIONS ON
MAY 21 MADE APPLICATION FOR THE MEDIATION SERVICES OF THE NATIONAL
MEDIATION BOARD PURSUANT TO SEC. 5 OF THE RAILWAY LABOR ACT.  (FN3)
BEWTEEN MAY 25 AND JUNE 22, APPROXIMATELY 32 MEETINGS WERE HELD BY THE
ORGANIZATIONS AND THE CARRIERS UNDER THE AUSPICES OF THE CHAIRMAN OF
THAT BOARD, BUT NO AGREEMENT WAS REACHED.  THE ORGANIZATIONS HAVING
REFUSED TO SUBMIT THE DISPUTE TO ARBITRATION, THE NATIONAL MEDIATION
BOARD ON JULY 16 TERMINATED ITS SERVICES UNDER THE PROVISIONS OF THE
RAILWAY LABOR ACT. 

ON THE FOLLOWING DAY, THE CARRIERS SERVED NOTICE ON THE ORGANIZATIONS
THAT, AS OF AUGUST 16, 1962, CHANGES IN RULES, RATES OF PAY, AND
WORKING CONDITIONS WOULD BE PLACED IN EFFECT BY THE CARRIERS.  ON JULY
26, THE ORGANIZATIONS BROUGHT THE PRESENT SUIT SEEKING A JUDGMENT THAT
THE PROPOSED RULE CHANGES WOULD VIOLATE THE RAILWAY LABOR ACT. 
SUBSEQUENTLY, THE CARRIERS, WITH LEAVE OF COURT AND WITHOUT OBJECTION
FROM THE ORGANIZATIONS, WITHDREW THEIR JULY 17, 1962, NOTICES, AND
SUBSTITUTED THEREFOR THE NOTICES WHICH HAD BEEN SERVED ON NOVEMBER 2,
1959, TO BECOME EFFECTIVE AUGUST 16, 1962.   THE ORGANIZATIONS'
COMPLAINT WAS THEN AMENDED TO SEEK SIMILAR RELIEF AGAINST THOSE
NOTICES. 

THE DISTRICT COURT FOUND THAT BOTH PARTIES HAD EXHAUSTED ALL OF THE
PROCEDURES AVAILABLE UNDER THE RAILWAY LABOR ACT, AND THAT THEY WERE
THEREFORE FREE TO RESORT TO SELF-HELP, RESTRICTED ONLY BY THE
POSSIBILITY OF THE APPOINTMENT OF AN EMERGENCY BOARD BY THE PRESIDENT
UNDER THE PROVISIONS OF SEC. 10 OF THE RAILWAY LABOR ACT.  (FN4)  IT
THEREFORE DISMISSED THE COMPLAINT FOR FAILURE TO STATE A CAUSE OF
ACTION.  THE COURT OF APPEALS AFFIRMED.  310 F.2D 503. 

THE PETITIONERS INSIST THAT, BECAUSE THE COURT OF APPEALS
CHARACTERIZED THE ORGANIZATIONS' ACTIONS AS REDUCING NEGOTIATIONS TO
"STERILE DISCUSSION," ITS OPINION MUST BE READ AS HOLDING THAT THE
RIGHT OF THE CARRIERS TO SERVE THE SEC. 6 NOTICES HERE AT ISSUE SOMEHOW
AROSE AS A PENALTY FOR THE ORGANIZATIONS' FAILURE TO BARGAIN IN GOOD
FAITH.  NO EVIDENCE WAS INTRODUCED BELOW AS TO THE GOOD FAITH OF EITHER
OF THE PARTIES DURING THE LENGTHY BARGAINING PROCEEDINGS PRIOR TO THE
INSTITUTION OF THIS SUIT, AND THERE IS NOTHING IN THE RECORD BEFORE US
TO INDICATE THAT EITHER PARTY ACTED IN BAD FAITH.  ANY CONTRARY
IMPLICATION IN THE OPINION OF THE COURT OF APPEALS IS DISAPPROVED. 

THE COURT OF APPEALS CONCLUDED, AS HAD THE DISTRICT COURT, THAT THE
RAILWAY LABOR ACT PROCEDURES HAD BEEN EXHAUSTED, AND THAT THEREFORE THE
SEC. 6 NOTICES SERVED BY THE CARRIERS WERE PROPER.  THE COURT OF
APPEALS CORRECTLY REJECTED THE CONTENTION OF THE ORGANIZATIONS THAT THE
STANDARDS CONTAINED IN THE NOTICES THEMSELVES VIOLATED THE RAILWAY
LABOR ACT.  AS THIS COURT HAS POINTED OUT, "THE RAILWAY LABOR ACT  ...
DOES NOT UNDERTAKE GOVERNMENTAL REGULATION OF WAGES, HOURS, OR WORKING
CONDITIONS.  INSTEAD IT SEEKS TO PROVIDE A MEANS BY WHICH AGREEMENT MAY
BE REACHED WITH RESPECT TO THEM.  THE NATIONAL INTEREST  ...  IS NOT
PRIMARILY IN THE WORKING CONDITIONS AS SUCH.  SO FAR AS THE ACT ITSELF
IS CONCERNED THESE CONDITIONS MAY BE AS BAD AS THE EMPLOYEES WILL
TOLERATE OR BE MADE AS GOOD AS THEY CAN BARGAIN FOR.  THE ACT DOES NOT
FIX AND DOES NOT AUTHORIZE ANYONE TO FIX GENERALLY APPLICABLE STANDARDS
FOR WORKING CONDITIONS.  THE FEDERAL INTEREST THAT IS FOSTERED IS TO
SEE THAT DISAGREEMENT ABOUT CONDITIONS DOES NOT REACH THE POINT OF
INTERFERING WITH INTERSTATE COMMERCE  ...  ."  TERMINAL ASSN. V.
TRAINMEN, 318 U.S. 1, 6.  SEE ALSO LABOR BOARD V. AMERICAN INS. CO.,
343 U.S. 395, 402. 

THE ONLY QUESTION PRESENTED, THEREFORE, IS WHETHER THE RECORD BEFORE
US SUSTAINS THE FINDING OF BOTH LOWER COURTS THAT THE PARTIES HAVE
EXHAUSTED THE PROCEDURES PROVIDED BY THE RAILWAY LABOR ACT FOR MAJOR
DISPUTES SUCH AS THAT INVOLVED HERE.  AS THIS COURT STATED IN ELGIN,
J.&E.R. CO. V. BURLEY, 325 U.S. 711, 725: 

"  ...  THE PARTIES ARE REQUIRED TO SUBMIT TO THE SUCCESSIVE
PROCEDURES DESIGNED TO INDUCE AGREEMENT.  SEC. 5 FIRST (B).  BUT
COMPULSIONS GO ONLY TO INSURE THAT THOSE PROCEDURES ARE EXHAUSTED
BEFORE RESORT CAN BE HAD TO SELF-HELP.  NO AUTHORITY IS EMPOWERED TO
DECIDE THE DISPUTE AND NO SUCH POWER IS INTENDED, UNLESS THE PARTIES
THEMSELVES AGREE TO ARBITRATION." 

THE 1960 AGREEMENT ESTABLISHING THE PRESIDENTIAL COMMISSION CONTAINED
A PROVISION PURPORTING TO ACCEPT THE COMMISSION'S PROCEEDINGS AS A
REPLACEMENT FOR THE PROCEDURES REQUIRED BY THE RAILWAY LABOR ACT. 
WHETHER OR NOT SUCH A PROVISION COULD EFFECTIVELY FORESTALL EITHER
PARTY FROM RESORTING TO THE PROCEDURES OF SEC. 5 OF THE ACT IS A
QUESTION WHICH WE NEED NOT DECIDE, BECAUSE THE SERVICES OF THE NATIONAL
MEDIATION BOARD WERE IN FACT SPECIFICALLY INVOKED BY THE ORGANIZATIONS,
AND THE BOARD'S PROCEDURES WERE EXHAUSTED.  SIMILARLY, ALTHOUGH
ARBITRATION PURSUANT TO SEC. 7 (FN5) WAS REFUSED BY THE ORGANIZATIONS,
THAT SECTION CLEARLY PROVIDES THAT "THE FAILURE OR REFUSAL OF EITHER
PARTY TO SUBMIT A CONTROVERSY TO ARBITRATION SHALL NOT BE CONSTRUED AS
A VIOLATION OF ANY LEGAL OBLIGATION IMPOSED UPON SUCH PARTY BY THE
TERMS OF THIS CHAPTER OR OTHERWISE." 

THERE IS, CONSEQUENTLY, NO QUESTION OF BAD FAITH OR MISCONDUCT ON THE
PART OF EITHER PARTY JUSTIFYING THE OTHER SIDE'S UNILATERAL IMPOSITION
OF CHANGES IN WORKING RULES.  WHAT IS CLEAR, RATHER, IS THAT BOTH
PARTIES, HAVING EXHAUSTED ALL OF THE STATUTORY PROCEDURES, ARE
RELEGATED TO SELF-HELP IN ADJUSTING THIS DISPUTE, SUBJECT ONLY TO THE
INVOCATION OF THE PROVISIONS OF SEC. 10 PROVIDING FOR THE CREATION OF
AN EMERGENCY BOARD.  (FN6)  AND ON THIS BASIS THE JUDGMENT BELOW MUST
BE, AND IS AFFIRMED. 

FN1  SECTION 6 OF THE RAILWAY LABOR ACT, AS AMENDED, 45 U.S.C. SEC.
156, PROVIDES: 

"CARRIERS AND REPRESENTATIVES OF THE EMPLOYEES SHALL GIVE AT LEAST
THIRTY DAYS' WRITTEN NOTICE OF AN INTENDED CHANGE IN AGREEMENTS
AFFECTING RATES OF PAY, RULES, OR WORKING CONDITIONS, AND THE TIME AND
PLACE FOR THE BEGINNING OF CONFERENCE BETWEEN THE REPRESENTATIVES OF
THE PARTIES INTERESTED IN SUCH INTENDED CHANGES SHALL BE AGREED UPON
WITHIN TEN DAYS AFTER THE RECEIPT OF SAID NOTICE, AND SAID TIME SHALL
BE WITHIN THIRTY DAYS PROVIDED IN THE NOTICE.  IN EVERY CASE WHERE SUCH
NOTICE OF INTENDED CHANGE HAS BEEN GIVEN, OR CONFERENCES ARE BEING HELD
WITH REFERENCE THERETO, OR THE SERVICES OF THE MEDIATION BOARD HAVE
BEEN REQUESTED BY EITHER PARTY, OR SAID BOARD HAS PROFFERED ITS
SERVICES, RATES OF PAY, RULES, OR WORKING CONDITIONS SHALL NOT BE
ALTERED BY THE CARRIER UNTIL THE CONTROVERSY HAS BEEN FINALLY ACTED
UPON, AS REQUIRED BY SECTION 155 OF THIS TITLE, BY THE MEDIATION BOARD,
UNLESS A PERIOD OF TEN DAYS HAS ELAPSED AFTER TERMINATION OF
CONFERENCES WITHOUT REQUEST FOR OR PROFFER OF THE SERVICES OF THE
MEDIATION BOARD." 

FN2  THIS AUTHORIZATION ECHOED THE WORDS OF SEC. 5 FIRST OF THE
RAILWAY LABOR ACT, AS AMENDED, 45 U.S.C. SEC. 155 FIRST: 

"FIRST.  THE PARTIES, OR EITHER PARTY, TO A DISPUTE BETWEEN AN
EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER MAY INVOKE THE SERVICES OF
THE MEDIATION BOARD IN ANY OF THE FOLLOWING CASES: 

"(A)  A DISPUTE CONCERNING CHANGES IN RATES OF PAY, RULES, OR WORKING
CONDITIONS NOT ADJUSTED BY THE PARTIES IN CONFERENCE. 

"(B)  ANY OTHER DISPUTE NOT REFERABLE TO THE NATIONAL RAILROAD
ADJUSTMENT BOARD AND NOT ADJUSTED IN CONFERENCE BETWEEN THE PARTIES OR
WHERE CONFERENCES ARE REFUSED. 

"THE MEDIATION BOARD MAY PROFFER ITS SERVICES IN CASE ANY LABOR
EMERGENCY IS FOUND BY IT TO EXIST AT ANY TIME. 

"IN EITHER EVENT THE SAID BOARD SHALL PROMPTLY PUT ITSELF IN
COMMUNICATION WITH THE PARTIES TO SUCH CONTROVERSY, AND SHALL USE ITS
BEST EFFORTS, BY MEDIATION, TO BRING THEM TO AGREEMENT.  IF SUCH
EFFORTS TO BRING ABOUT AN AMICABLE SETTLEMENT THROUGH MEDIATION SHALL
BE UNSUCCESSFUL, THE SAID BOARD SHALL AT ONCE ENDEAVOR AS ITS FINAL
REQUIRED ACTION (EXCEPT AS PROVIDED IN PARAGRAPH THIRD OF THIS SECTION
AND IN SECTION 160 OF THIS TITLE) TO INDUCE THE PARTIES TO SUBMIT THEIR
CONTROVERSY TO ARBITRATION, IN ACCORDANCE WITH THE PROVISIONS OF THIS
CHAPTER. 

"IF ARBITRATION AT THE REQUEST OF THE BOARD SHALL BE REFUSED BY ONE
OR BOTH PARTIES, THE BOARD SHALL AT ONCE NOTIFY BOTH PARTIES IN WRITING
THAT ITS MEDIATORY EFFORTS HAVE FAILED AND FOR THIRTY DAYS THEREAFTER,
UNLESS IN THE INTERVENING PERIOD THE PARTIES AGREE TO ARBITRATION, OR
AN EMERGENCY BOARD SHALL BE CREATED UNDER SECTION 160 OF THIS TITLE, NO
CHANGE SHALL BE MADE IN THE RATES OF PAY, RULES, OR WORKING CONDITIONS
OR ESTABLISHED PRACTICES IN EFFECT PRIOR TO THE TIME THE DISPUTE
AROSE." 

FN3  SEE NOTE 2, SUPRA. 

FN4  SECTION 10 OF THE RAILWAY LABOR ACT, AS AMENDED, 45 U.S.C. SEC.
160, PROVIDES: 

"IF A DISPUTE BETWEEN A CARRIER AND ITS EMPLOYEES BE NOT ADJUSTED
UNDER THE FOREGOING PROVISIONS OF THIS CHAPTER AND SHOULD, IN THE
JUDGMENT OF THE MEDIATION BOARD, THREATEN SUBSTANTIALLY TO INTERRUPT
INTERSTATE COMMERCE TO A DEGREE SUCH AS TO DEPRIVE ANY SECTION OF THE
COUNTRY OF ESSENTIAL TRANSPORTATION SERVICE, THE MEDIATION BOARD SHALL
NOTIFY THE PRESIDENT, WHO MAY THEREUPON, IN HIS DISCRETION, CREATE A
BOARD TO INVESTIGATE AND REPORT RESPECTING SUCH DISPUTE.  SUCH BOARD
SHALL BE COMPOSED OF SUCH NUMBER OF PERSONS AS TO THE PRESIDENT MAY
SEEM DESIRABLE:  PROVIDED, HOWEVER, THAT NO MEMBER APPOINTED SHALL BE
PECUNIARILY OR OTHERWISE INTERESTED IN ANY ORGANIZATION OF EMPLOYEES OR
ANY CARRIER.  THE COMPENSATION OF THE MEMBERS OF ANY SUCH BOARD SHALL
BE FIXED BY THE PRESIDENT.  SUCH BOARD SHALL BE CREATED SEPARATELY IN
EACH INSTANCE AND IT SHALL INVESTIGATE PROMPTLY THE FACTS AS TO THE
DISPUTE AND MAKE A REPORT THEREON TO THE PRESIDENT WITHIN THIRTY DAYS
FROM THE DATE OF ITS CREATION. 

     *  *         *         *         * 

"AFTER THE CREATION OF SUCH BOARD AND FOR THIRTY DAYS AFTER SUCH
BOARD HAS MADE ITS REPORT TO THE PRESIDENT, NO CHANGE, EXCEPT BY
AGREEMENT, SHALL BE MADE BY THE PARTIES TO THE CONTROVERSY IN THE
CONDITIONS OUT OF WHICH THE DISPUTE AROSE." 

FN5  SECTION 7 FIRST OF THE RAILWAY LABOR ACT, AS AMENDED, 45 U.S.C.
SEC. 157, PROVIDES: 

"FIRST.  WHENEVER A CONTROVERSY SHALL ARISE BETWEEN A CARRIER OR
CARRIERS AND ITS OR THEIR EMPLOYEES WHICH IS NOT SETTLED EITHER IN
CONFERENCE BETWEEN REPRESENTATIVES OF THE PARTIES OR BY THE APPROPRIATE
ADJUSTMENT BOARD OR THROUGH MEDIATION, IN THE MANNER PROVIDED IN
THE PARTIES TO SUCH CONTROVERSY, BE SUBMITTED TO THE ARBITRATION OF A
BOARD OF THREE (OR, IF THE PARTIES TO THE CONTROVERSY SO STIPULATE, OF
SIX) PERSONS:  PROVIDED, HOWEVER, THAT THE FAILURE OR REFUSAL OF EITHER
PARTY TO SUBMIT A CONTROVERSY TO ARBITRATION SHALL NOT BE CONSTRUED AS
A VIOLATION OF ANY LEGAL OBLIGATION IMPOSED UPON SUCH PARTY BY THE
TERMS OF THIS CHAPTER OR OTHERWISE."    FN6  SEE NOTE 4, SUPRA. 

THE 1960 AGREEMENT ESTABLISHING THE PRESIDENTIAL COMMISSION WAS
"APPROVED" BY SECRETARY OF LABOR MITCHELL.  IT PROVIDED THAT THE
PARTIES ACCEPTED ITS PROCEEDINGS "  ...  AS IN LIEU OF THE MEDIATION
AND EMERGENCY BOARD PROCEDURES PROVIDED BY SECTIONS 5 AND 10 OF THE
RAILWAY LABOR ACT."  IN ADDITION, THE AGREEMENT SOMEWHAT INCONSISTENTLY
MADE PROVISION FOR THE INVOCATION OF THE SERVICES OF THE NATIONAL
MEDIATION BOARD AND FOR NATIONAL BARGAINING CONFERENCES BETWEEN THE
PARTIES IMMEDIATELY FOLLOWING THE REPORT OF THE COMMISSION.  FINALLY,
IT PROVIDED THAT THE AGREEMENT WAS NOT TO BE CONSTRUED AS A WAIVER OF
ANY LEGAL RIGHT OF ANY OF THE PARTIES.  WE HAVE ALREADY NOTED THAT THE
PARTIES DID IN FACT EXHAUST SEC. 5 PROCEDURES.  NEITHER PARTY IN THIS
COURT HAS CONTENDED THAT THE 1960 AGREEMENT WOULD AFFECT THE
APPLICABILITY OF SEC. 10.  IN ANY EVENT, IT IS CLEAR THAT NO PRIVATE
AGREEMENT CAN INTERFERE WITH THE DUTY OF THE NATIONAL MEDIATION BOARD
OR THE POWER WHICH SEC. 10 CONFERS UPON THE PRESIDENT OF THE UNITED
STATES. 
..END :












EDWARDS V. SOUTH CAROLINA 372 U.S. 229 


NO. 86.  ARGUED DECEMBER 13, 1962.  - DECIDED FEBRUARY 25, 1963.  - 239
S.C. 339, 123 S.E.2D 247, REVERSED. 


FEELING AGGRIEVED BY LAWS OF SOUTH CAROLINA WHICH ALLEGEDLY
"PROHIBITED NEGRO PRIVILEGES," PETITIONERS, 187 NEGRO HIGH SCHOOL AND
COLLEGE STUDENTS, PEACEFULLY ASSEMBLED AT THE SITE OF THE STATE
GOVERNMENT AND THERE PEACEFULLY EXPRESSED THEIR GRIEVANCES "TO THE
CITIZENS OF SOUTH CAROLINA, ALONG WITH THE LEGISLATIVE BODIES OF SOUTH
CAROLINA."  WHEN TOLD BY POLICE OFFICIALS THAT THEY MUST DISPERSE
WITHIN 15 MINUTES ON PAIN OF ARREST, THEY FAILED TO DO SO AND SANG
PATRIOTIC AND RELIGIOUS SONGS AFTER ONE OF THEIR LEADERS HAD DELIVERED
A "RELIGIOUS HARANGUE."  THERE WAS NO VIOLENCE OR THREAT OF VIOLENCE ON
THEIR PART OR ON THE PART OF ANY MEMBER OF THE CROWD WATCHING THEM; BUT
PETITIONERS WERE ARRESTED AND CONVICTED OF THE COMMON-LAW CRIME OF
BREACH OF THE PEACE, WHICH THE STATE SUPREME COURT SAID "IS NOT
SUSCEPTIBLE OF EXACT DEFINITION."  HELD:  IN ARRESTING, CONVICTING AND
PUNISHING PETITIONERS UNDER THE CIRCUMSTANCES DISCLOSED BY THIS RECORD,
SOUTH CAROLINA INFRINGED THEIR RIGHTS OF FREE SPEECH, FREE ASSEMBLY AND
FREEDOM TO PETITION FOR A REDRESS OF GRIEVANCES - RIGHTS GUARANTEED BY
THE FIRST AMENDMENT AND PROTECTED BY THE FOURTEENTH AMENDMENT FROM
INVASION BY THE STATES.  PP. 229-238. 

EDWARDS ET AL. V. SOUTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS, 187 IN NUMBER, WERE CONVICTED IN A MAGISTRATE'S
COURT IN COLUMBIA, SOUTH CAROLINA, OF THE COMMON-LAW CRIME OF BREACH OF
THE PEACE.  THEIR CONVICTIONS WERE ULTIMATELY AFFIRMED BY THE SOUTH
CAROLINA SUPREME COURT, 239 S.C. 339, 123 S.E.2D 247.  WE GRANTED
CERTIORARI, 369 U.S. 870, TO CONSIDER THE CLAIM THAT THESE CONVICTIONS
CANNOT BE SQUARED WITH THE FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION. 

THERE WAS NO SUBSTANTIAL CONFLICT IN THE TRIAL EVIDENCE.  (FN1)  LATE
IN THE MORNING OF MARCH 2, 1961, THE PETITIONERS, HIGH SCHOOL AND
COLLEGE STUDENTS OF THE NEGRO RACE, MET AT THE ZION BAPTIST CHURCH IN
COLUMBIA.  FROM THERE, AT ABOUT NOON, THEY WALKED IN SEPARATE GROUPS OF
ABOUT 15 TO THE SOUTH CAROLINA STATE HOUSE GROUNDS, AN AREA OF TWO CITY
BLOCKS OPEN TO THE GENERAL PUBLIC.  THEIR PURPOSE WAS "TO SUBMIT A
PROTEST TO THE CITIZENS OF SOUTH CAROLINA, ALONG WITH THE LEGISLATIVE
BODIES OF SOUTH CAROLINA, OUR FEELINGS AND OUR DISSATISFACTION WITH THE
PRESENT CONDITION OF DISCRIMINATORY ACTIONS AGAINST NEGROES, IN
GENERAL, AND TO LET THEM KNOW THAT WE WERE DISSATISFIED AND THAT WE
WOULD LIKE FOR THE LAWS WHICH PROHIBITED NEGRO PRIVILEGES IN THIS STATE
TO BE REMOVED." 

ALREADY ON THE STATE HOUSE GROUNDS WHEN THE PETITIONERS ARRIVED WERE
30 OR MORE LAW ENFORCEMENT OFFICERS, WHO HAD ADVANCE KNOWLEDGE THAT THE
PETITIONERS WERE COMING.  (FN2) EACH GROUP OF PETITIONERS ENTERED THE
GROUNDS THROUGH A DRIVEWAY AND PARKING AREA KNOWN IN THE RECORD AS THE
"HORSESHOE."  AS THEY ENTERED, THEY WERE TOLD BY THE LAW ENFORCEMENT
OFFICIALS THAT "THEY HAD A RIGHT, AS A CITIZEN, TO GO THROUGH THE STATE
HOUSE GROUNDS, AS ANY OTHER CITIZEN HAS, AS LONG AS THEY WERE
PEACEFUL."  DURING THE NEXT HALF HOUR OR 45 MINUTES, THE PETITIONERS,
IN THE SAME SMALL GROUPS, WALKED SINGLE FILE OR TWO ABREAST IN AN
ORDERLY WAY (FN3) THROUGH THE GROUNDS, EACH GROUP CARRYING PLACARDS
BEARING SUCH MESSAGES AS "I AM PROUD TO BE A NEGRO" AND "DOWN WITH
SEGREGATION." 

DURING THIS TIME A CROWD OF SOME 200 TO 300 ONLOOKERS HAD COLLECTED
IN THE HORSESHOE AREA AND ON THE ADJACENT SIDEWALKS.  THERE WAS NO
EVIDENCE TO SUGGEST THAT THESE ONLOOKERS WERE ANYTHING BUT CURIOUS, AND
NO EVIDENCE AT ALL OF ANY THREATENING REMARKS, HOSTILE GESTURES, OR
OFFENSIVE LANGUAGE ON THE PART OF ANY MEMBER OF THE CROWD.  THE CITY
MANAGER TESTIFIED THAT HE RECOGNIZED SOME OF THE ONLOOKERS, WHOM HE DID
NOT IDENTIFY, AS "POSSIBLE TROUBLE MAKERS," BUT HIS SUBSEQUENT
TESTIMONY MADE CLEAR THAT NOBODY AMONG THE CROWD ACTUALLY CAUSED OR
THREATENED ANY TROUBLE.  (FN4)  THERE WAS NO OBSTRUCTION OF PEDESTRIAN
OR VEHICULAR TRAFFIC WITHIN THE STATE HOUSE GROUNDS.  (FN5)  NO VEHICLE
WAS PREVENTED FROM ENTERING OR LEAVING THE HORSESHOE AREA.  ALTHOUGH
VEHICULAR TRAFFIC AT A NEARBY STREET INTERSECTION WAS SLOWED DOWN
SOMEWHAT, AN OFFICER WAS DISPATCHED TO KEEP TRAFFIC MOVING.  THERE WERE
A NUMBER OF BYSTANDERS ON THE PUBLIC SIDEWALKS ADJACENT TO THE STATE
HOUSE GROUNDS, BUT THEY ALL MOVED ON WHEN ASKED TO DO SO, AND THERE WAS
NO IMPEDIMENT OF PEDESTRIAN TRAFFIC.  (FN6) POLICE PROTECTION AT THE
SCENE WAS AT ALL TIMES SUFFICIENT TO MEET ANY FORESEEABLE POSSIBILITY
OF DISORDER.  (FN7) 

IN THE SITUATION AND UNDER THE CIRCUMSTANCES THUS DESCRIBED, THE
POLICE AUTHORITIES ADVISED THE PETITIONERS THAT THEY WOULD BE ARRESTED
IF THEY DID NOT DISPERSE WITHIN 15 MINUTES.  (FN8) INSTEAD OF
DISPERSING, THE PETITIONERS ENGAGED IN WHAT THE CITY MANAGER DESCRIBED
AS "BOISTEROUS," "LOUD," AND "FLAMBOYANT" CONDUCT, WHICH, AS HIS LATER
TESTIMONY MADE CLEAR, CONSISTED OF LISTENING TO A "RELIGIOUS HARANGUE"
BY ONE OF THEIR LEADERS, AND LOUDLY SINGING "THE STAR SPANGLED BANNER"
AND OTHER PATRIOTIC AND RELIGIOUS SONGS, WHILE STAMPING THEIR FEET AND
CLAPPING THEIR HANDS.  AFTER 15 MINUTES HAD PASSED, THE POLICE ARRESTED
THE PETITIONERS AND MARCHED THEM OFF TO JAIL.  (FN9) 

UPON THIS EVIDENCE THE STATE TRIAL COURT CONVICTED THE PETITIONERS OF
BREACH OF THE PEACE, AND IMPOSED SENTENCES RANGING FROM A $10 FINE OR
FIVE DAYS IN JAIL, TO A $100 FINE OR 30 DAYS IN JAIL.  IN AFFIRMING THE
JUDGMENTS, THE SUPREME COURT OF SOUTH CAROLINA SAID THAT UNDER THE LAW
OF THAT STATE THE OFFENSE OF BREACH OF THE PEACE "IS NOT SUSCEPTIBLE OF
EXACT DEFINITION," BUT THAT THE "GENERAL DEFINITION OF THE OFFENSE" IS
AS FOLLOWS: 

"IN GENERAL TERMS, A BREACH OF THE PEACE IS A VIOLATION OF PUBLIC
ORDER, A DISTURBANCE OF THE PUBLIC TRANQUILITY, BY ANY ACT OR CONDUCT
INCITING TO VIOLENCE  ...  , IT INCLUDES ANY VIOLATION OF ANY LAW
ENACTED TO PRESERVE PEACE AND GOOD ORDER.  IT MAY CONSIST OF AN ACT OF
VIOLENCE OR AN ACT LIKELY TO PRODUCE VIOLENCE.  IT IS NOT NECESSARY
THAT THE PEACE BE ACTUALLY BROKEN TO LAY THE FOUNDATION FOR A
PROSECUTION FOR THIS OFFENSE.  IF WHAT IS DONE IS UNJUSTIFIABLE AND
UNLAWFUL, TENDING WITH SUFFICIENT DIRECTNESS TO BREAK THE PEACE, NO
MORE IS REQUIRED.  NOR IS ACTUAL PERSONAL VIOLENCE AN ESSENTIAL ELEMENT
IN THE OFFENSE  ...  . 

"BY 'PEACE,' AS USED IN THE LAW IN THIS CONNECTION, IS MEANT THE
TRANQUILITY ENJOYED BY CITIZENS OF A MUNICIPALITY OR COMMUNITY WHERE
GOOD ORDER REIGNS AMONG ITS MEMBERS, WHICH IS THE NATURAL RIGHT OF ALL
PERSONS IN POLITICAL SOCIETY."  239 S.C., AT 343-344, 123 S.E.2D, AT
249. 

THE PETITIONERS CONTEND THAT THERE WAS A COMPLETE ABSENCE OF ANY
EVIDENCE OF THE COMMISSION OF THIS OFFENSE, AND THAT THEY WERE THUS
DENIED ONE OF THE MOST BASIC ELEMENTS OF DUE PROCESS OF LAW.  THOMPSON
V. LOUISVILLE, 362 U.S. 199; SEE GARNER V. LOUISIANA, 368 U.S. 157;
TAYLOR V. LOUISIANA, 370 U.S. 154.  WHATEVER THE MERITS OF THIS
CONTENTION, WE NEED NOT PASS UPON IT IN THE PRESENT CASE.   THE STATE
COURTS HAVE HELD THAT THE PETITIONERS' CONDUCT CONSTITUTED BREACH OF
THE PEACE UNDER STATE LAW, AND WE MAY ACCEPT THEIR DECISION AS BINDING
UPON US TO THAT EXTENT.  BUT IT NEVERTHELESS REMAINS OUR DUTY IN A CASE
SUCH AS THIS TO MAKE AN INDEPENDENT EXAMINATION OF THE WHOLE RECORD. 
BLACKBURN V. ALABAMA, 361 U.S. 199, 205, N. 5; PENNEKAMP V. FLORIDA,
328 U.S. 331, 335; FISKE V. KANSAS, 274 U.S. 380, 385-386.  AND IT IS
CLEAR TO US THAT IN ARRESTING, CONVICTING, AND PUNISHING THE
PETITIONERS UNDER THE CIRCUMSTANCES DISCLOSED BY THIS RECORD, SOUTH
CAROLINA INFRINGED THE PETITIONERS' CONSTITUTIONALLY PROTECTED RIGHTS
OF FREE SPEECH, FREE ASSEMBLY, AND FREEDOM TO PETITION FOR REDRESS OF
THEIR GRIEVANCES. 

IT HAS LONG BEEN ESTABLISHED THAT THESE FIRST AMENDMENT FREEDOMS ARE
PROTECTED BY THE FOURTEENTH AMENDMENT FROM INVASION BY THE STATES. 
GITLOW V. NEW YORK, 268 U.S. 652; WHITNEY V. CALIFORNIA, 274 U.S. 357;
STROMBERG V. CALIFORNIA, 283 U.S. 359; DE JONGE V. OREGON, 299 U.S.
353; CANTWELL V. CONNECTICUT, 310 U.S. 296.  THE CIRCUMSTANCES IN THIS
CASE REFLECT AN EXERCISE OF THESE BASIC CONSTITUTIONAL RIGHTS IN THEIR
MOST PRISTINE AND CLASSIC FORM.  THE PETITIONERS FELT AGGRIEVED BY LAWS
OF SOUTH CAROLINA WHICH ALLEGEDLY "PROHIBITED NEGRO PRIVILEGES IN THIS
STATE."  THEY PEACEABLY ASSEMBLED AT THE SITE OF THE STATE GOVERNMENT
(FN10) AND THERE PEACEABLY EXPRESSED THEIR GRIEVANCES "TO THE CITIZENS
OF SOUTH CAROLINA, ALONG WITH THE LEGISLATIVE BODIES OF SOUTH
CAROLINA."  NOT UNTIL THEY WERE TOLD BY POLICE OFFICIALS THAT THEY MUST
DISPERSE ON PAIN OF ARREST DID THEY DO MORE.  EVEN THEN, THEY BUT SANG
PATRIOTIC AND RELIGIOUS SONGS AFTER ONE OF THEIR LEADERS HAD DELIVERED
A "RELIGIOUS HARANGUE."  THERE WAS NO VIOLENCE OR THREAT OF VIOLENCE ON
THEIR PART, OR ON THE PART OF ANY MEMBER OF THE CROWD WATCHING THEM. 
POLICE PROTECTION WAS "AMPLE." 

THIS, THEREFORE, WAS A FAR CRY FROM THE SITUATION IN FEINER V. NEW
YORK, 340 U.S. 315, WHERE TWO POLICEMEN WERE FACED WITH A CROWD WHICH
WAS "PUSHING, SHOVING AND MILLING AROUND," ID., AT 317, WHERE AT LEAST
ONE MEMBER OF THE CROWD "THREATENED VIOLENCE IF THE POLICE DID NOT
ACT," ID., AT 317, WHERE "THE CROWD WAS PRESSING CLOSER AROUND
PETITIONER AND THE OFFICER," ID., AT 318, AND WHERE "THE SPEAKER PASSES
THE BOUNDS OF ARGUMENT OR PERSUASION AND UNDERTAKES INCITEMENT TO
RIOT."  ID., AT 321.  AND THE RECORD IS BARREN OF ANY EVIDENCE OF
"FIGHTING WORDS."  SEE CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568. 

WE DO NOT REVIEW IN THIS CASE CRIMINAL CONVICTIONS RESULTING FROM THE
EVENHANDED APPLICATION OF A PRECISE AND NARROWLY DRAWN REGULATORY
STATUTE EVINCING A LEGISLATIVE JUDGMENT THAT CERTAIN SPECIFIC CONDUCT
BE LIMITED OR PROSCRIBED.  IF, FOR EXAMPLE, THE PETITIONERS HAD BEEN
CONVICTED UPON EVIDENCE THAT THEY HAD VIOLATED A LAW REGULATING
TRAFFIC, OR HAD DISOBEYED A LAW REASONABLY LIMITING THE PERIODS DURING
WHICH THE STATE HOUSE GROUNDS WERE OPEN TO THE PUBLIC, THIS WOULD BE A
DIFFERENT CASE.  (FN11)  SEE CANTWELL V. CONNECTICUT, 310 U.S. 296, 307
308; GARNER V. LOUISIANA, 368 U.S. 157, 202 (CONCURRING OPINION). 
THESE PETITIONERS WERE CONVICTED OF AN OFFENSE SO GENERALIZED AS TO BE,
IN THE WORDS OF THE SOUTH CAROLINA SUPREME COURT, "NOT SUSCEPTIBLE OF
EXACT DEFINITION."  AND THEY WERE CONVICTED UPON EVIDENCE WHICH SHOWED
NO MORE THAN THAT THE OPINIONS WHICH THEY WERE PEACEABLY EXPRESSING
WERE SUFFICIENTLY OPPOSED TO THE VIEWS OF THE MAJORITY OF THE COMMUNITY
TO ATTRACT A CROWD AND NECESSITATE POLICE PROTECTION. 

THE FOURTEENTH AMENDMENT DOES NOT PERMIT A STATE TO MAKE CRIMINAL THE
PEACEFUL EXPRESSION OF UNPOPULAR VIEWS.  "A FUNCTION OF FREE SPEECH
UNDER OUR SYSTEM OF GOVERNMENT IS TO INVITE DISPUTE.  IT MAY INDEED
BEST SERVE ITS HIGH PURPOSE WHEN IT INDUCES A CONDITION OF UNREST,
CREATES DISSATISFACTION WITH CONDITIONS AS THEY ARE, OR EVEN STIRS
PEOPLE TO ANGER.  SPEECH IS OFTEN PROVOCATIVE AND CHALLENGING.  IT MAY
STRIKE AT PREJUDICES AND PRECONCEPTIONS AND HAVE PROFOUND UNSETTLING
EFFECTS AS IT PRESSES FOR ACCEPTANCE OF AN IDEA.  THAT IS WHY FREEDOM
OF SPEECH  ...  IS ...  PROTECTED AGAINST CENSORSHIP OR PUNISHMENT,
UNLESS SHOWN LIKELY TO PRODUCE A CLEAR AND PRESENT DANGER OF A SERIOUS
SUBSTANTIVE EVIL THAT RISES FAR ABOVE PUBLIC INCONVENIENCE, ANNOYANCE,
OR UNREST  ...  .  THERE IS NO ROOM UNDER OUR CONSTITUTION FOR A MORE
RESTRICTIVE VIEW.  FOR THE ALTERNATIVE WOULD LEAD TO STANDARDIZATION OF
IDEAS EITHER BY LEGISLATURES, COURTS, OR DOMINANT POLITICAL OR
COMMUNITY GROUPS."  TERMINIELLO V. CHICAGO, 337 U.S. 1, 4-5.  AS IN THE
TERMINIELLO CASE, THE COURTS OF SOUTH CAROLINA HAVE DEFINED A CRIMINAL
OFFENSE SO AS TO PERMIT CONVICTION OF THE PETITIONERS IF THEIR SPEECH
"STIRRED PEOPLE TO ANGER, INVITED PUBLIC DISPUTE, OR BROUGHT ABOUT A
CONDITION OF UNREST.  A CONVICTION RESTING ON ANY OF THOSE GROUNDS MAY
NOT STAND."  ID., AT 5. 

AS CHIEF JUSTICE HUGHES WROTE IN STROMBERG V. CALIFORNIA, "THE
MAINTENANCE OF THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION TO THE END
THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND THAT
CHANGES MAY BE OBTAINED BY LAWFUL MEANS, AN OPPORTUNITY ESSENTIAL TO
THE SECURITY OF THE REPUBLIC, IS A FUNDAMENTAL PRINCIPLE OF OUR
CONSTITUTIONAL SYSTEM.  A STATUTE WHICH UPON ITS FACE, AND AS
AUTHORITATIVELY CONSTRUED, IS SO VAGUE AND INDEFINITE AS TO PERMIT THE
PUNISHMENT OF THE FAIR USE OF THIS OPPORTUNITY IS REPUGNANT TO THE
GUARANTY OF LIBERTY CONTAINED IN THE FOURTEENTH AMENDMENT  ...  ."  283
U.S. 359, 369. 

FOR THESE REASONS WE CONCLUDE THAT THESE CRIMINAL CONVICTIONS CANNOT
STAND.  REVERSED. 

FN1  THE PETITIONERS WERE TRIED IN GROUPS, AT FOUR SEPARATE TRIALS. 
IT WAS STIPULATED THAT THE APPEALS BE TREATED AS ONE CASE. 

FN2  THE POLICE CHIEF OF COLUMBIA TESTIFIED THAT ABOUT 15 OF HIS MEN
WERE PRESENT, AND THAT THERE WERE, IN ADDITION, "SOME STATE HIGHWAY
PATROLMEN; THERE WERE SOME SOUTH CAROLINA LAW ENFORCEMENT OFFICERS
PRESENT AND I BELIEVE, I'M NOT POSITIVE, I BELIEVE THERE WERE ABOUT
THREE DEPUTY SHERIFFS." 

FN3  THE POLICE CHIEF OF COLUMBIA TESTIFIED AS FOLLOWS: 

"Q.  DID YOU, CHIEF, WALK AROUND THE STATE HOUSE BUILDING WITH ANY OF
THESE PERSONS? 

"A.  I DID NOT.  I STAYED AT THE HORSESHOE.  I PLACED MEN OVER THE
GROUNDS. 

"Q. DID ANY OF YOUR MEN MAKE A REPORT THAT ANY OF THESE PERSONS WERE
DISORDERLY IN WALKING AROUND THE STATE HOUSE GROUNDS? 

"A.  THEY DID NOT. 

"Q.  UNDER NORMAL CIRCUMSTANCES YOUR MEN WOULD REPORT TO YOU WHEN YOU
ARE AT THE SCENE? 

"A.  THEY SHOULD. 

"Q.  IS IT REASONABLE TO ASSUME THEN THAT THERE WAS NO DISORDERLY
CONDUCT ON THE PART OF THESE PERSONS, SINCE YOU RECEIVED NO REPORT FROM
YOUR OFFICERS? 

"A.  I WOULD TAKE THAT FOR GRANTED, YES." 

THE CITY MANAGER TESTIFIED: 

"Q.  WERE THE NEGRO COLLEGE STUDENTS OR OTHER STUDENTS WELL
DEMEANED?  WERE THEY WELL DRESSED AND WERE THEY ORDERLY? 

"A.  YES, THEY WERE." 

FN4  "Q.  WHO WERE THOSE PERSONS? 

"A.  I CAN'T TELL YOU WHO THEY WERE.  I CAN TELL YOU THEY WERE
PRESENT IN THE GROUP.  THEY WERE RECOGNIZED AS POSSIBLE TROUBLE
MAKERS. 

"Q.  DID YOU AND YOUR POLICE CHIEF DO ANYTHING ABOUT PLACING THOSE
PEOPLE UNDER ARREST? 

"A.  NO, WE HAD NO OCCASION TO PLACE THEM UNDER ARREST. 

"Q.  NOW, SIR, YOU HAVE STATED THAT THERE WERE POSSIBLE TROUBLE
MAKERS AND YOUR WHOLE TESTIMONY HAS BEEN THAT, AS CITY MANAGER, AS
SUPERVISOR OF THE CITY POLICE, YOUR OBJECT IS TO PRESERVE THE PEACE AND
LAW AND ORDER?    "A.  THAT'S RIGHT. 

"Q.  YET YOU TOOK NO OFFICIAL ACTION AGAINST PEOPLE WHO WERE PRESENT
AND POSSIBLY MIGHT HAVE DONE SOME HARM TO THESE PEOPLE? 

"A.  WE TOOK NO OFFICIAL ACTION BECAUSE THERE WAS NONE TO BE TAKEN. 
THEY WERE NOT CREATING A DISTURBANCE, THOSE PARTICULAR PEOPLE WERE NOT
AT THAT TIME DOING ANYTHING TO MAKE TROUBLE BUT THEY COULD HAVE BEEN." 
FN5  THE POLICE CHIEF OF COLUMBIA TESTIFIED: 

"Q.  EACH GROUP OF STUDENTS WALKED ALONG IN COLUMN OF TWOS? 

"A.  SOMETIMES TWO AND I DID SEE SOME IN SINGLE-FILE. 

"Q.  THERE WAS AMPLE ROOM FOR OTHER PERSONS GOING IN THE SAME
DIRECTION OR THE OPPOSITE DIRECTION TO PASS ON THE SAME SIDEWALK? 

"A.  I WOULDN'T SAY THEY WERE BLOCKING THE SIDEWALK; NOW, THAT WAS
THROUGH THE STATE HOUSE GROUNDS." 

FN6  THE POLICE CHIEF OF COLUMBIA TESTIFIED: 

"A.  AT TIMES THEY BLOCKED THE SIDEWALK AND WE ASKED THEM TO MOVE
OVER AND THEY DID. 

"Q.  THEY OBEYED YOUR COMMANDS ON THAT? 

"A.  YES. 

"Q.  SO THAT NOBODY COMPLAINED THAT HE WANTED TO USE THE SIDEWALK AND
HE COULD NOT DO IT? 

"A. I DIDN'T HAVE ANY COMPLAINTS ON THAT." 

FN7  THE CITY MANAGER TESTIFIED: 

"Q.  YOU HAD AMPLE TIME, DIDN'T YOU, TO GET AMPLE POLICE PROTECTION,
IF YOU THOUGHT SUCH WAS NEEDED ON THE STATE HOUSE GROUNDS, DIDN'T YOU? 

"A.  YES, WE DID. 

"Q.  SO, IF THERE WERE NOT AMPLE POLICE PROTECTION THERE, IT WAS THE
FAULT OF THOSE PERSONS IN CHARGE OF THE POLICE DEPARTMENT, WASN'T IT? 

"A.  THERE WAS AMPLE POLICE PROTECTION THERE." 

FN8  THE CITY MANAGER TESTIFIED: 

"Q.  MR. MCNAYR, WHAT ACTION DID YOU TAKE? 

"A.  I INSTRUCTED DAVE CARTER TO TELL EACH OF THESE GROUPS, TO CALL
THEM UP AND TELL EACH OF THE GROUPS AND THE GROUP LEADERS THAT THEY
MUST DISPERSE, THEY MUST DISPERSE IN THE MANNER WHICH I HAVE ALREADY
DESCRIBED, THAT I WOULD GIVE THEM FIFTEEN MINUTES FROM THE TIME OF MY
CONVERSATION WITH HIM TO HAVE THEM DISPERSED AND, IF THEY WERE NOT
DISPERSED, I WOULD DIRECT MY CHIEF OF POLICE TO PLACE THEM UNDER
ARREST." 

FN9  THE CITY MANAGER TESTIFIED: 

"Q.  YOU HAVE ALREADY TESTIFIED, MR. MCNAYR, I BELIEVE, THAT YOU DID
ORDER THESE STUDENTS DISPERSED WITHIN FIFTEEN MINUTES? 

"A.  YES. 

"Q.  DID THEY DISPERSE IN ACCORDANCE WITH YOUR ORDER? 

"A.  THEY DID NOT. 

"Q.  WHAT THEN OCCURRED? 

"A.  I THEN ASKED CHIEF OF POLICE CAMPBELL TO DIRECT HIS MEN TO LINE
UP THE STUDENTS AND MARCH THEM OR PLACE THEM UNDER ARREST AND MARCH
THEM TO THE CITY JAIL AND THE COUNTY JAIL. 

"Q.  THEY WERE PLACED UNDER ARREST? 

"A.  THEY WERE PLACED UNDER ARREST." 

FN10  IT WAS STIPULATED AT TRIAL "THAT THE STATE HOUSE GROUNDS ARE
OCCUPIED BY THE EXECUTIVE BRANCH OF THE SOUTH CAROLINA GOVERNMENT, THE
LEGISLATIVE BRANCH AND THE JUDICIAL BRANCH, AND THAT, DURING THE PERIOD
COVERED IN THE WARRANT IN THIS MATTER, TO WIT: MARCH THE 2ND, THE
LEGISLATURE OF SOUTH CAROLINA WAS IN SESSION." 

FN11  SECTION 1-417 OF THE 1952 CODE OF LAWS OF SOUTH CAROLINA (CUM.
SUPP. 1960) PROVIDES AS FOLLOWS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON: 

"(1)  EXCEPT STATE OFFICERS AND EMPLOYEES AND PERSONS HAVING LAWFUL
BUSINESS IN THE BUILDINGS, TO USE ANY OF THE DRIVEWAYS, ALLEYS OR
PARKING SPACES UPON ANY OF THE PROPERTY OF THE STATE, BOUNDED BY
ASSEMBLY, GERVAIS, BULL AND PENDLETON STREETS IN COLUMBIA UPON ANY
REGULAR WEEKDAY, SATURDAYS AND HOLIDAYS EXCEPTED, BETWEEN THE HOURS OF
8:30 A.M.  AND 5:30 P.M., WHENEVER THE BUILDINGS ARE OPEN FOR BUSINESS;
OR: 

"(2)  TO PARK ANY VEHICLE EXCEPT IN THE SPACES AND MANNER MARKED AND
DESIGNATED BY THE STATE BUDGET AND CONTROL BOARD, IN COOPERATION WITH
THE HIGHWAY DEPARTMENT, OR TO BLOCK OR IMPEDE TRAFFIC THROUGH THE
ALLEYS AND DRIVEWAYS." 

THE PETITIONERS WERE NOT CHARGED WITH VIOLATING THIS STATUTE, AND THE
RECORD CONTAINS NO EVIDENCE WHATEVER THAT ANY POLICE OFFICIAL HAD THIS
STATUTE IN MIND WHEN ORDERING THE PETITIONERS TO DISPERSE ON PAIN OF
ARREST, OR INDEED THAT A CHARGE UNDER THIS STATUTE COULD HAVE BEEN
SUSTAINED BY WHAT OCCURRED. 

MR. JUSTICE CLARK, DISSENTING. 

THE CONVICTIONS OF THE PETITIONERS, NEGRO HIGH SCHOOL AND COLLEGE
STUDENTS, FOR BREACH OF THE PEACE UNDER SOUTH CAROLINA LAW ARE ACCEPTED
BY THE COURT "AS BINDING UPON US TO THAT EXTENT" BUT ARE HELD VIOLATIVE
OF "PETITIONERS' CONSTITUTIONALLY PROTECTED RIGHTS OF FREE SPEECH, FREE
ASSEMBLY, AND FREEDOM TO PETITION FOR REDRESS OF THEIR GRIEVANCES." 
PETITIONERS, OF COURSE, HAD A RIGHT TO PEACEABLE ASSEMBLY, TO ESPOUSE
THEIR CAUSE AND TO PETITION, BUT IN MY VIEW THE MANNER IN WHICH THEY
EXERCISED THOSE RIGHTS WAS BY NO MEANS THE PASSIVE DEMONSTRATION WHICH
THIS COURT RELATES; RATHER, AS THE CITY MANAGER OF COLUMBIA TESTIFIED,
"A DANGEROUS SITUATION WAS REALLY BUILDING UP" WHICH SOUTH CAROLINA'S
COURTS EXPRESSLY FOUND HAD CREATED "AN ACTUAL INTERFERENCE WITH TRAFFIC
AND AN IMMINENTLY THREATENED DISTURBANCE OF THE PEACE OF THE
COMMUNITY."  (FN1)  SINCE THE COURT DOES NOT ATTACK THE STATE COURTS'
FINDINGS AND ACCEPTS THE CONVICTIONS AS "BINDING" TO THE EXTENT THAT
THE PETITIONERS' CONDUCT CONSTITUTED A BREACH OF THE PEACE, IT IS
DIFFICULT FOR ME TO UNDERSTAND ITS UNDERSTATEMENT OF THE FACTS AND
REVERSAL OF THE CONVICTIONS. 

THE PRICELESS CHARACTER OF FIRST AMENDMENT FREEDOMS CANNOT BE
GAINSAID, BUT IT DOES NOT FOLLOW THAT THEY ARE ABSOLUTES IMMUNE FROM
NECESSARY STATE ACTION REASONABLY DESIGNED FOR THE PROTECTION OF
SOCIETY.  SEE CANTWELL V. CONNECTICUT, 310 U.S. 296, 304 (1940);
SCHNEIDER V. STATE, 308 U.S. 147, 160 (1939).  FOR THAT REASON IT IS
OUR DUTY TO CONSIDER THE CONTEXT IN WHICH THE ARRESTS HERE WERE MADE. 
CERTAINLY THE CITY OFFICIALS WOULD BE CONSTITUTIONALLY PROHIBITED FROM
REFUSING PETITIONERS ACCESS TO THE STATE HOUSE GROUNDS MERELY BECAUSE
THEY DISAGREED WITH THEIR VIEWS.  SEE NIEMOTKO V. MARYLAND, 340 U.S.
268 (1951).  BUT HERE SOUTH CAROLINA'S COURTS HAVE FOUND:  "THERE IS NO
INDICATION WHATEVER IN THIS CASE THAT THE ACTS OF THE POLICE OFFICERS
WERE TAKEN AS A SUBTERFUGE OR EXCUSE FOR THE SUPPRESSION OF THE
APPELLANTS' VIEWS AND OPINIONS."  (FN2)  IT IS UNDISPUTED THAT THE CITY
OFFICIALS SPECIFICALLY GRANTED PETITIONERS PERMISSION TO ASSEMBLE,
IMPOSING ONLY THE REQUIREMENT THAT THEY BE "PEACEFUL."  PETITIONERS
THEN GATHERED ON THE STATE HOUSE GROUNDS, DURING A GENERAL ASSEMBLY
SESSION, IN A LARGE NUMBER OF ALMOST 200, MARCHING AND CARRYING
PLACARDS WITH SLOGANS SUCH AS "DOWN WITH SEGREGATION" AND "YOU MAY JAIL
OUR BODIES BUT NOT OUR SOULS."  SOME OF THEM WERE SINGING. 

THE ACTIVITY CONTINUED FOR APPROXIMATELY 45 MINUTES, DURING THE BUSY
NOON-HOUR PERIOD, WHILE A CROWD OF SOME 300 PERSONS CONGREGATED IN
FRONT OF THE STATE HOUSE AND AROUND THE AREA DIRECTLY IN FRONT OF ITS
ENTRANCE, KNOWN AS THE "HORSESHOE," WHICH WAS USED FOR VEHICULAR AS
WELL AS PEDESTRIAN INGRESS AND EGRESS.  DURING THIS TIME THERE WERE NO
EFFORTS MADE BY THE CITY OFFICIALS TO HINDER THE PETITIONERS IN THEIR
RIGHTS OF FREE SPEECH AND ASSEMBLY; RATHER, THE POLICE DIRECTED THEIR
EFFORTS TO THE TRAFFIC PROBLEMS RESULTING FROM PETITIONERS'
ACTIVITIES.  IT WAS ONLY AFTER THE LARGE CROWD HAD GATHERED, AMONG
WHICH THE CITY MANAGER AND CHIEF OF POLICE RECOGNIZED POTENTIAL
TROUBLEMAKERS, AND WHICH TOGETHER WITH THE STUDENTS HAD BECOME MASSED
ON AND AROUND THE "HORSESHOE" SO CLOSELY THAT VEHICULAR AND PEDESTRIAN
TRAFFIC WAS MATERIALLY IMPEDED, (FN3) THAT ANY ACTION AGAINST THE
PETITIONERS WAS TAKEN.  THEN THE CITY MANAGER, IN WHAT BOTH THE STATE
INTERMEDIATE AND SUPREME COURT FOUND TO BE THE UTMOST GOOD FAITH,
DECIDED THAT DANGER TO PEACE AND SAFETY WAS IMMINENT.  EVEN AT THIS
JUNCTURE NO ORDERS WERE ISSUED BY THE CITY MANAGER FOR THE POLICE TO
BREAK UP THE CROWD, NOW ABOUT 500 PERSONS, AND NO ARRESTS WERE MADE. 
INSTEAD, HE APPROACHED THE RECOGNIZED LEADER OF THE PETITIONERS AND
REQUESTED HIM TO TELL THE VARIOUS GROUPS OF PETITIONERS TO DISPERSE
WITHIN 15 MINUTES, FAILING WHICH THEY WOULD BE ARRESTED.  EVEN THOUGH
THE CITY MANAGER MIGHT HAVE BEEN HONESTLY MISTAKEN AS TO THE IMMINENCE
OF DANGER, THIS WAS CERTAINLY A REASONABLE REQUEST BY THE CITY'S TOP
EXECUTIVE OFFICER IN AN EFFORT TO AVOID A PUBLIC BRAWL.  BUT THE
RESPONSE OF PETITIONERS AND THEIR LEADER WAS DEFIANCE RATHER THAN
COOPERATION.  THE LEADER IMMEDIATELY MOVED FROM GROUP TO GROUP AMONG
THE STUDENTS, DELIVERING A "HARANGUE" WHICH, ACCORDING TO TESTIMONY IN
THE RECORD, "AROUSED (THEM) TO A FEVER PITCH CAUSING THIS
BOISTEROUSNESS, THIS SINGING AND STOMPING." 

FOR THE NEXT 15 MINUTES THE PETITIONERS SANG "I SHALL NOT BE MOVED"
AND VARIOUS RELIGIOUS SONGS, STAMPED THEIR FEET, CLAPPED THEIR HANDS,
AND CONDUCTED WHAT THE SOUTH CAROLINA SUPREME COURT FOUND TO BE A
"NOISY DEMONSTRATION IN DEFIANCE OF THE DISPERSAL ORDERS."  239 S.C.
339, 345, 123 S.E.2D 247, 250.  ULTIMATELY, THE PETITIONERS WERE
ARRESTED, AS THEY APPARENTLY PLANNED FROM THE BEGINNING, AND CONVICTED
ON EVIDENCE THE SUFFICIENCY OF WHICH THE COURT DOES NOT CHALLENGE.  THE
QUESTION THUS SEEMS TO ME WHETHER A STATE IS CONSTITUTIONALLY
PROHIBITED FROM ENFORCING LAWS TO PREVENT BREACH OF THE PEACE IN A
SITUATION WHERE CITY OFFICIALS IN GOOD FAITH BELIEVE, AND THE RECORD
SHOWS, THAT DISORDER AND VIOLENCE ARE IMMINENT, MERELY BECAUSE THE
ACTIVITIES CONSTITUTING THAT BREACH CONTAIN CLAIMED ELEMENTS OF
CONSTITUTIONALLY PROTECTED SPEECH AND ASSEMBLY.  TO ME THE ANSWER UNDER
OUR CASES IS CLEARLY IN THE NEGATIVE. 

BEGINNING, AS DID THE SOUTH CAROLINA COURTS, WITH THE PREMISE THAT
THE PETITIONERS WERE ENTITLED TO ASSEMBLE AND VOICE THEIR
DISSATISFACTION WITH SEGREGATION, THE ENLARGEMENT OF CONSTITUTIONAL
PROTECTION FOR THE CONDUCT HERE IS AS FALLACIOUS AS WOULD BE THE
CONCLUSION THAT FREE SPEECH NECESSARILY INCLUDES THE RIGHT TO BROADCAST
FROM A SOUND TRUCK IN THE PUBLIC STREETS.  KOVACS V. COOPER, 336 U.S.
77 (1949).  THIS COURT SAID IN THORNHILL V. ALABAMA, 310 U.S. 88, 105
(1940), THAT "THE POWER AND THE DUTY OF THE STATE TO TAKE ADEQUATE
STEPS TO PRESERVE THE PEACE AND TO PROTECT THE PRIVACY, THE LIVES, AND
THE PROPERTY OF ITS RESIDENTS CANNOT BE DOUBTED."  SIGNIFICANTLY, IN
HOLDING THAT THE PETITIONER'S PICKETING WAS CONSTITUTIONALLY PROTECTED
IN THAT CASE THE COURT TOOK PAINS TO DIFFERENTIATE IT FROM "PICKETING
EN MASSE OR OTHERWISE CONDUCTED WHICH MIGHT OCCASION  ...  IMMINENT AND
AGGRAVATED DANGER  ...  ."  IBID.  HERE THE PETITIONERS WERE PERMITTED
WITHOUT HINDRANCE TO EXERCISE THEIR RIGHTS OF FREE SPEECH AND
ASSEMBLY.  THEIR ARRESTS OCCURRED ONLY AFTER A SITUATION AROSE IN WHICH
THE LAW-ENFORCEMENT OFFICIALS ON THE SCENE CONSIDERED THAT A DANGEROUS
DISTURBANCE WAS IMMINENT.  (FN4)  THE COUNTY COURT FOUND THAT "THE
EVIDENCE IS CLEAR THAT THE OFFICERS WERE MOTIVATED SOLELY BY A PROPER
CONCERN FOR THE PRESERVATION OF ORDER AND THE PROTECTION OF THE GENERAL
WELFARE IN THE FACE OF AN ACTUAL INTERFERENCE WITH TRAFFIC AND AN
IMMINENTLY THREATENED DISTURBANCE OF THE PEACE OF THE COMMUNITY." 
(FN5)  IN AFFIRMING, THE SOUTH CAROLINA SUPREME COURT SAID THE ACTION
OF THE POLICE WAS "REASONABLE AND MOTIVATED SOLELY BY A PROPER CONCERN
FOR THE PRESERVATION OF ORDER AND PREVENTION OF FURTHER INTERFERENCE
WITH TRAFFIC UPON THE PUBLIC STREETS AND SIDEWALKS."   239 S.C., AT
345, 123 S.E.2D, AT 249-250. 

IN CANTWELL V. CONNECTICUT, SUPRA, AT 308, THIS COURT RECOGNIZED THAT
"WHEN CLEAR AND PRESENT DANGER OF RIOT, DISORDER, INTERFERENCE WITH
TRAFFIC UPON THE PUBLIC STREETS, OR OTHER IMMEDIATE THREAT TO PUBLIC
SAFETY, PEACE, OR ORDER, APPEARS, THE POWER OF THE STATE TO PREVENT OR
PUNISH IS OBVIOUS."  AND IN FEINER V. NEW YORK, 340 U.S. 315 (1951), WE
UPHELD A CONVICTION FOR BREACH OF THE PEACE IN A SITUATION NO MORE
DANGEROUS THAN THAT FOUND HERE.  THERE THE DEMONSTRATION WAS CONDUCTED
BY ONLY ONE PERSON AND THE CROWD WAS LIMITED TO APPROXIMATELY 80, AS
COMPARED WITH THE PRESENT LINEUP OF SOME 200 DEMONSTRATORS AND 300
ONLOOKERS.  THERE THE PETITIONER WAS "ENDEAVORING TO AROUSE THE NEGRO
PEOPLE AGAINST THE WHITES, URGING THAT THEY RISE UP IN ARMS AND FIGHT
FOR EQUAL RIGHTS."  ID., AT 317.  ONLY ONE PERSON - IN A CITY HAVING AN
ENTIRELY DIFFERENT HISTORICAL BACKGROUND - WAS EXHORTING ADULTS.  HERE
200 YOUTHFUL NEGRO DEMONSTRATORS WERE BEING AROUSED TO A "FEVER PITCH"
BEFORE A CROWD OF SOME 300 PEOPLE WHO UNDOUBTEDLY WERE HOSTILE. 
PERHAPS THEIR SPEECH WAS NOT SO ANIMATED BUT IN THIS SETTING THEIR
ACTIONS, THEIR PLACARDS READING "YOU MAY JAIL OUR BODIES BUT NOT OUR
SOULS" AND THEIR CHANTING OF "I SHALL NOT BE MOVED," ACCOMPANIED BY
STAMPING FEET AND CLAPPING HANDS, CREATED A MUCH GREATER DANGER OF RIOT
AND DISORDER.  IT IS MY BELIEF THAT ANYONE CONVERSANT WITH THE ALMOST
SPONTANEOUS COMBUSTION IN SOME SOUTHERN COMMUNITIES IN SUCH A SITUATION
WILL AGREE THAT THE CITY MANAGER'S ACTION MAY WELL HAVE AVERTED A MAJOR
CATASTROPHE. 

THE GRAVITY OF THE DANGER HERE SURELY NEEDS NO FURTHER EXPLICATION. 
THE IMMINENCE OF THAT DANGER HAS BEEN EMPHASIZED AT EVERY STAGE OF THIS
PROCEEDING, FROM THE COMPLAINTS CHARGING THAT THE DEMONSTRATIONS
"TENDED DIRECTLY TO IMMEDIATE VIOLENCE" TO THE STATE SUPREME COURT'S
AFFIRMANCE ON THE AUTHORITY OF FEINER, SUPRA.  THIS RECORD, THEN, SHOWS
NO STEPS BACKWARD FROM A STANDARD OF "CLEAR AND PRESENT DANGER."  BUT
TO SAY THAT THE POLICE MAY NOT INTERVENE UNTIL THE RIOT HAS OCCURRED IS
LIKE KEEPING OUT THE DOCTOR UNTIL THE PATIENT DIES.  I CANNOT SUBSCRIBE
TO SUCH A DOCTRINE.  IN THE WORDS OF MY BROTHER FRANKFURTER: 

"THIS COURT HAS OFTEN EMPHASIZED THAT IN THE EXERCISE OF OUR
AUTHORITY OVER STATE COURT DECISIONS THE DUE PROCESS CLAUSE MUST NOT BE
CONSTRUED IN AN ABSTRACT AND DOCTRINAIRE WAY BY DISREGARDING LOCAL
CONDITIONS  ...  .  IT IS PERTINENT, THEREFORE, TO NOTE THAT ALL
MEMBERS OF THE NEW YORK COURT ACCEPTED THE FINDING THAT FEINER WAS
STOPPED NOT BECAUSE THE LISTENERS OR POLICE OFFICERS DISAGREED WITH HIS
VIEWS BUT BECAUSE THESE OFFICERS WERE HONESTLY CONCERNED WITH
PREVENTING A BREACH OF THE PEACE  ...  .    "AS WAS SAID IN HAGUE V.
C.I.O., SUPRA, UNCONTROLLED OFFICIAL SUPPRESSION OF THE SPEAKER 'CANNOT
BE MADE A SUBSTITUTE FOR THE DUTY TO MAINTAIN ORDER.'  307 U.S. AT
516.  WHERE CONDUCT IS WITHIN THE ALLOWABLE LIMITS OF FREE SPEECH, THE
POLICE ARE PEACE OFFICERS FOR THE SPEAKER AS WELL AS FOR HIS HEARERS. 
BUT THE POWER EFFECTIVELY TO PRESERVE ORDER CANNOT BE DISPLACED BY
GIVING A SPEAKER COMPLETE IMMUNITY.  HERE, THERE WERE TWO POLICE
OFFICERS PRESENT FOR 20 MINUTES.  THEY INTERFERED ONLY WHEN THEY
APPREHENDED IMMINENCE OF VIOLENCE.  IT IS NOT A CONSTITUTIONAL
PRINCIPLE THAT, IN ACTING TO PRESERVE ORDER, THE POLICE MUST PROCEED
AGAINST THE CROWD, WHATEVER ITS SIZE AND TEMPER, AND NOT AGAINST THE
DEMONSTRATORS."  340 U.S., AT 288-289 (CONCURRING OPINION IN FEINER V.
NEW YORK AND OTHER CASES DECIDED THAT DAY). 

I WOULD AFFIRM THE CONVICTIONS. 

FN1  UNREPORTED ORDER OF THE RICHLAND COUNTY COURT, JULY 10, 1961, ON
APPEAL FROM THE MAGISTRATE'S COURT OF COLUMBIA, SOUTH CAROLINA.  THE
SUPREME COURT'S AFFIRMANCE OF THAT ORDER, 239 S.C. 339, 123 S.E.2D 247,
IS NOW BEFORE US ON WRIT OF CERTIORARI. 

FN2  SUPRA, NOTE 1. 

FN3  THE CITY MANAGER TESTIFIED AS FOLLOWS: 

"Q.  NOW, WITH RELATION, MR. MCNAYR, TO THE SIDEWALKS AROUND THE
HORSESHOE AND THE LANE FOR VEHICULAR TRAFFIC, HOW WAS THE CROWD
DISTRIBUTED, WITH REGARD TO THOSE SIDEWALKS AND ROADWAYS? 

"A.  WELL, THE CONDITIONS VARIED FROM TIME TO TIME, BUT AT NUMEROUS
TIMES THEY WERE BLOCKED ALMOST COMPLETELY WITH PROBABLY AS MANY AS
THIRTY OR FORTY PERSONS, BOTH ON THE SIDEWALKS AND IN THE STREET AREA
...  . 

"Q.  DID YOU OBSERVE THE PEDESTRIAN TRAFFIC ON THE WALKWAY? 

"A.  YES, I DID. 

"Q.  WHAT WAS THE CONDITION THERE? 

"A.  THE CONDITION THERE WAS THAT IT WAS EXTREMELY DIFFICULT FOR A
PEDESTRIAN WANTING TO GET THROUGH, TO GET THROUGH.  MANY OF THEM TOOK
TO THE STREET AREA, EVEN TO GET THROUGH THE STREET AREA OR THE
SIDEWALK." 

THE CHIEF OF POLICE TESTIFIED AS FOLLOWS: 

"Q.  WAS THE STREET BLOCKED? 

"A.  WE HAD TO PLACE A TRAFFIC MAN AT THE INTERSECTION OF GERVAIS AND
MAIN TO HANDLE TRAFFIC AND PEDESTRIANS. 

"Q.  WAS A VEHICULAR TRAFFIC LANE BLOCKED? 

"A.  IT WAS, THAT WAS IN THE HORSESHOE." 

FN4  THE CITY MANAGER TESTIFIED AS FOLLOWS: 

"Q.  DID YOU HEAR ANY SINGING, CHANTING OR ANYTHING OF THAT NATURE
FROM THE STUDENT GROUP? 

"A.  YES. 

"Q.  DESCRIBE THAT AS BEST YOU CAN. 

"A.  WITH THE HARANGUES, WHICH I HAVE JUST DESCRIBED, WITNESSED
FRANKLY BY EVERYONE PRESENT AND IN THIS AREA, THE STUDENTS BEGAN
ANSWERING BACK WITH SHOUTS.  THEY BECAME BOISTEROUS.  THEY STOMPED
THEIR FEET.  THEY SANG IN LOUD VOICES TO THE POINT WHERE, AGAIN, IN MY
JUDGMENT, A DANGEROUS SITUATION WAS REALLY BUILDING UP." 

THE POLICE CHIEF TESTIFIED AS FOLLOWS: 

"Q.  CHIEF, YOU WERE QUESTIONED ON CROSS EXAMINATION AT LENGTH ABOUT
THE APPEARANCE AND ORDERLINESS OF THE STUDENT GROUP.  WERE THEY ORDERLY
AT ALL TIMES? 

"A.  NOT AT THE LAST. 

"Q.  WOULD YOU DESCRIBE THE ACTIVITIES AT THE LAST? 

"A.  AS I HAVE STATED, THEY WERE SINGING AND, ALSO, WHEN THEY WERE
GETTING CERTAIN INSTRUCTIONS, THEY WERE VERY LOUD AND BOISTEROUS." 

FN5  SUPRA, NOTE 1. 
..END :





NATIONAL MOTOR FREIGHT TRAFFIC ASSN. V. UNITED STATES 372 U.S. 246 


NO. 479.  DECIDED FEBRUARY 25, 1963.  - REPORTED BELOW:  205 F. SUPP.
592. 


1.  PETITION FOR REHEARING DENIED. 

2.  IN AFFIRMING, 371 U.S. 223, THE DISTRICT COURT'S JUDGMENT
DISMISSING APPELLANTS' ACTION TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION, THIS COURT AFFIRMED THE DISTRICT COURT'S JUDGMENT
INSOFAR AS IT UPHELD THE COMMISSION'S ORDER ON THE MERITS; BUT THIS
COURT DISAGREED WITH THE DISTRICT COURT'S VIEW THAT APPELLANTS LACKED
STANDING TO CHALLENGE THE COMMISSION'S ORDER IN THE DISTRICT COURT. 

3.  SINCE APPELLANTS, AUTHORIZED ASSOCIATIONS OF MOTOR CARRIERS UNDER
49 U.S.C. SEC. 5B, ARE APPROPRIATE REPRESENTATIVES OF THEIR MEMBERS,
AND THEIR MEMBERS WOULD BE AGGRIEVED BY THE COMMISSION'S ORDER,
APPELLANTS HAD STANDING TO CHALLENGE THE VALIDITY OF THE COMMISSION'S
ORDER IN THE DISTRICT COURT. 

NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, INC., ET AL. V. UNITED
STATES ET AL. 

ON PETITION FOR REHEARING. 

PER CURIAM. 

THE PETITION FOR REHEARING IS DENIED.  HOWEVER, WE THINK WE SHOULD
MAKE CLEAR THE BASIS UPON WHICH OUR PER CURIAM ORDER AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT.  371 U.S. 223.  THE DISTRICT COURT
DISMISSED APPELLANTS' ACTION TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION ON TWO GROUNDS:  (1) THAT THE APPELLANTS LACKED
STANDING TO CHALLENGE THE COMMISSION'S ORDER IN THE DISTRICT COURT; (2)
THAT THE APPELLANTS' CHALLENGE TO THE COMMISSION'S ORDER WAS WITHOUT
MERIT.  OUR PER CURIAM ORDER AFFIRMED THE DISTRICT COURT'S JUDGMENT
INSOFAR AS IT UPHELD THE VALIDITY OF THE COMMISSION'S ORDER ON THE
MERITS.  WE DISAGREED THAT APPELLANTS LACKED STANDING TO CHALLENGE THE
COMMISSION'S ORDER IN THE DISTRICT COURT.  THE APPELLANTS ARE
ASSOCIATIONS OF MOTOR CARRIERS, AUTHORIZED UNDER 49 U.S.C. SEC. 5B, AND
PERFORM SIGNIFICANT FUNCTIONS IN THE ADMINISTRATION OF THE INTERSTATE
COMMERCE ACT, INCLUDING THE REPRESENTATION OF MEMBER CARRIERS IN
PROCEEDINGS BEFORE THE COMMISSION.  SINCE INDIVIDUAL MEMBER CARRIERS OF
APPELLANTS WILL BE AGGRIEVED BY THE COMMISSION'S ORDER, AND SINCE
APPELLANTS ARE PROPER REPRESENTATIVES OF THE INTERESTS OF THEIR
MEMBERS, APPELLANTS HAVE STANDING TO CHALLENGE THE VALIDITY OF THE
COMMISSION'S ORDER IN THE DISTRICT COURT.  SEE ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. SEC. 1009(A); FCC V. SANDERS BROS. RADIO STATION, 309
U.S. 470; NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S. 449, 459. 

MR. JUSTICE HARLAN CONCURS IN THE DENIAL OF THE PETITION FOR
REHEARING AND IN THE AFFIRMANCE OF THE JUDGMENT OF THE DISTRICT COURT
INSOFAR AS THAT JUDGMENT REFUSED TO SET ASIDE THE ORDER OF THE
INTERSTATE COMMERCE COMMISSION.  HE BELIEVES, HOWEVER, THAT THE
QUESTION OF "STANDING" SHOULD NOT BE DECIDED WITHOUT PLENARY
CONSIDERATION. 

MR. JUSTICE STEWART WOULD GRANT THE PETITION FOR REHEARING. 
..END :
















HARRISON V. MISSOURI PACIFIC RAILROAD CO. 372 U.S. 248 


NO. 690.  DECIDED FEBRUARY 25, 1963.  - REVERSED. 


PETITIONER, A SECTION FOREMAN FOR A RAILROAD, SUED THE RAILROAD IN A
STATE COURT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT FOR INJURIES
SUSTAINED WHEN HE WAS ASSAULTED BY A MEMBER OF HIS SECTION GANG WHOM HE
ACCUSED OF STEALING A BALLAST FORK.  A JURY AWARDED DAMAGES TO
PETITIONER; BUT THE TRIAL JUDGE SET ASIDE THE VERDICT AND GRANTED THE
RAILROAD A JUDGMENT NOTWITHSTANDING THE VERDICT.  THE APPELLATE COURT
AFFIRMED.  HELD:  THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY'S
FINDING THAT THE ASSAULT WAS FORESEEABLE; THE TRIAL COURT AND THE
APPELLATE COURT IMPROPERLY INVADED THE FUNCTION AND PROVINCE OF THE
JURY; CERTIORARI IS GRANTED; THE JUDGMENT IS REVERSED; AND THE CASE IS
REMANDED.  PP. 248-250. 

HARRISON V. MISSOURI PACIFIC RAILROAD CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 

THE PETITIONER, A SECTION FOREMAN FOR RESPONDENT RAILROAD, WAS
ASSAULTED BY ONE OF HIS SECTION GANG WHOM HE ACCUSED OF STEALING A
BALLAST FORK.  IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, 45 U.S.C. SEC. 51 ET SEQ., THE PETITIONER WAS AWARDED DAMAGES BY A
JURY IN THE CIRCUIT COURT OF ST. CLAIR COUNTY, ILLINOIS.  THE TRIAL
JUDGE SET ASIDE THE VERDICT AND GRANTED RESPONDENT'S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT.  THE APPELLATE COURT AFFIRMED, 35
ILL. APP. 2D 66, 181 N.E.2D 737.  ITS JUDGMENT BECAME FINAL WHEN THE
ILLINOIS SUPREME COURT DENIED PETITIONER LEAVE TO APPEAL.  ILL.  REV.
STAT., 1961, C. 110, SEC. 75. 

THE TRIAL JUDGE GRANTED RESPONDENT'S MOTION ON THE GROUND THAT "THERE
WAS A LACK OF EVIDENCE TO SUSTAIN" THE JURY'S VERDICT.  THE APPELLATE
COURT, IN AFFIRMING, HELD THAT THERE WAS NO EVIDENCE SUFFICIENT TO
SUPPORT A FINDING THAT THE RESPONDENT KNEW OR SHOULD HAVE KNOWN PRIOR
TO THE ASSAULT OF PROPENSITIES OF THE ASSAILANT TO COMMIT SUCH
ASSAULTS. 

WE THINK THAT THE ILLINOIS COURTS IMPROPERLY INVADED THE FUNCTION AND
PROVINCE OF THE JURY IN THIS CASE.  WHILE  "  ...  REASONABLE
FORESEEABILITY OF HARM IS AN ESSENTIAL INGREDIENT OF FEDERAL EMPLOYERS'
LIABILITY ACT NEGLIGENCE," GALLICK V. BALTIMORE & OHIO R. CO., ANTE, P.
108, AT 117, WE HAVE HELD THAT THE FACT THAT "THE FORESEEABLE DANGER
WAS FROM INTENTIONAL OR CRIMINAL MISCONDUCT IS IRRELEVANT; RESPONDENT
NONETHELESS HAD A DUTY TO MAKE REASONABLE PROVISION AGAINST IT." 
LILLIE V. THOMPSON, 332 U.S. 459, 462.  THE PETITIONER'S EVIDENCE WAS
THAT HIS IMMEDIATE SUPERIOR, A ROADMASTER, ASSIGNED THE ASSAILANT TO
PETITIONER'S CREW AND AT THE TIME WARNED HIM:  "YOU WILL HAVE TO WATCH
HIM BECAUSE HE IS A BAD ACTOR AND A TROUBLE MAKER.  YOU WILL HAVE TO
WATCH HIM."  HE ALSO TESTIFIED TO HAVING SEVERAL TIMES COMPLAINED TO
THE ROADMASTER ABOUT THE ASSAILANT'S MISCONDUCT AND REFUSAL TO FOLLOW
HIS ORDERS DURING THE TWO MONTHS THE ASSAILANT WAS WITH HIS CREW. 
FINALLY, HE TESTIFIED THAT AFTER THE ASSAULT THE ROADMASTER SAID TO
HIM: "I TOLD YOU TO LOOK OUT FOR HIM.  NOW YOU GOT YOURSELF IN PLENTY
OF TROUBLE."  THIS TESTIMONY WAS DISPUTED BUT, IF BELIEVED BY THE JURY,
IT CONSTITUTED PROBATIVE FACTS SUFFICIENT TO SUPPORT THE JURY'S FINDING
OF FORESEEABILITY AND WITHSTAND THE RESPONDENT'S MOTION.  MCBRIDE V.
TOLEDO TERMINAL R. CO., 354 U.S. 517; RINGHISER V. CHESAPEAKE & O.R.
CO., 354 U.S. 901; SEE ALSO ROGERS V. MISSOURI PAC. R. CO., 352 U.S.
500. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART WOULD DENY CERTIORARI. 
SEE DISSENTING OPINION OF FRANKFURTER, J., AND SEPARATE OPINION OF
HARLAN, J., IN ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500, 524, 559;
CONCURRING OPINION OF STEWART, J., IN SENTILLES V. INTER-CARIBBEAN
SHIPPING CORP., 361 U.S. 107, 111; DISSENTING OPINION OF HARLAN, J., IN
GALLICK V. BALTIMORE & OHIO R. CO., ANTE, P. 122.  THE CASE HAVING BEEN
TAKEN, HOWEVER, THEY CONCUR IN THE JUDGMENT OF THE COURT.  352 U.S., AT
559-562; 361 U.S., AT 111. 
..END :




















PATTERSON V. CITY OF DALLAS 372 U.S. 251 


NO. 712.  DECIDED FEBRUARY 25, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  355 S.W.2D 838. 


PATTERSON ET AL. V. CITY OF DALLAS. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, FIFTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















WHITE STAG MANUFACTURING CO. V. ELLIS, MEMBERS OF THE STATE TAX
COMMISSION OF OREGON 372 U.S. 251 


NO. 708.  DECIDED FEBRUARY 25, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 232 ORE.  94, 373 P.2D 999. 


WHITE STAG MANUFACTURING CO. V. ELLIS ET AL., MEMBERS OF THE STATE TAX
COMMISSION OF OREGON. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














BEARDEN V. UNITED STATES 372 U.S. 252 


NO. 467, MISC.  DECIDED FEBRUARY 25, 1963.  - CERTIORARI GRANTED;
JUDGMENT VACATED; AND CASE REMANDED.  - REPORTED BELOW:  304 F.2D 532. 


BEARDEN V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR FURTHER CONSIDERATION IN LIGHT OF ELCHUK V. UNITED
STATES, 370 U.S. 722. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











NEW JERSEY V. NEW YORK, SUSQUEHANNA & WESTERN RAILROAD CO. 372 U.S. 1 


NO. 104.  ARGUED DECEMBER 11, 1962.  - DECIDED FEBRUARY 18, 1963.  - 200
F. SUPP. 860, REVERSED. 


APPELLEE RAILROAD OPERATES TRAINS SOLELY WITHIN THE STATE OF NEW
JERSEY; BUT IT ESTIMATES THAT NEARLY 90% OF ITS PASSENGERS TRAVEL TO
AND FROM NEW YORK CITY VIA CONNECTING BUSES OWNED AND OPERATED BY A
CORPORATION UNAFFILIATED BUT UNDER CONTRACT WITH APPELLEE.  AFTER
DISCONTINUING MOST OF ITS PASSENGER TRAINS WITH THE PERMISSION OF THE
PUBLIC UTILITIES COMMISSION OF NEW JERSEY, APPELLEE FILED WITH THE
INTERSTATE COMMERCE COMMISSION NOTICE OF ITS INTENTION TO DISCONTINUE
ALL PASSENGER SERVICE.  ON MOTION OF APPELLANTS, THE INTERSTATE
COMMERCE COMMISSION DISMISSED THE NOTICE FOR WANT OF JURISDICTION. 
HELD: THE PROCEEDING INVOLVED ONLY TRAINS "OPERATED WHOLLY WITHIN THE
BOUNDARIES OF A SINGLE STATE," WITHIN THE MEANING OF SEC. 13A(2) OF THE
INTERSTATE COMMERCE ACT, AND IT WAS PROPERLY DISMISSED FOR WANT OF
INITIAL JURISDICTION IN THE INTERSTATE COMMERCE COMMISSION.  PP. 2-9. 

NEW JERSEY ET AL. V. NEW YORK, SUSQUEHANNA & WESTERN RAILROAD CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS DIRECT APPEAL FROM A THREE-JUDGE DISTRICT COURT INVOLVES THE
JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION TO PERMIT
DISCONTINUANCE OF TRAINS OPERATED BY THE APPELLEE RAILROAD WHOLLY
WITHIN THE STATE OF NEW JERSEY.  AT ISSUE IS WHETHER THE DISCONTINUANCE
PROCEDURES OF SEC. 13A(1) OR SEC. 13A(2) OF THE INTERSTATE COMMERCE ACT
(72 STAT. 571-572, 49 U.S.C. SECS. 13A(1), 13A(2)) ARE TO BE FOLLOWED. 

APPELLEE, NEW YORK, SUSQUEHANNA & WESTERN RAILROAD CO., OPERATES
PASSENGER TRAINS BETWEEN BUTLER, NEW JERSEY, AND SUSQUEHANNA TRANSFER,
IN NORTH BERGEN, NEW JERSEY.  CONNECTING BUSES, CARRYING ONLY TRAIN
PASSENGERS, RUN BETWEEN NORTH BERGEN AND THE PORT OF NEW YORK AUTHORITY
BUS TERMINAL IN MANHATTAN.  THE BUSES ARE OWNED AND OPERATED BY PUBLIC
SERVICE COORDINATED TRANSPORT, A NEW JERSEY CORPORATION UNAFFILIATED
BUT UNDER CONTRACT WITH APPELLEE.  ACCORDING TO APPELLEE, NEARLY 90% OF
ITS PASSENGERS TRAVEL TO AND FROM NEW YORK. 

AS RECENTLY AS 1956, APPELLEE OPERATED 30 PASSENGER TRAINS EASTBOUND
AND 30 WESTBOUND ON WEEKDAYS AND 17 OR 18 IN EACH DIRECTION ON
WEEKENDS.  BECAUSE OF FINANCIAL DIFFICULTIES AND CONTINUED LOSSES ON
PASSENGER TRAIN OPERATIONS, APPELLEE HAS, WITH THE PERMISSION OF THE
PUBLIC UTILITIES COMMISSION OF NEW JERSEY, REDUCED THE NUMBER OF TRAINS
FROM TIME TO TIME SO THAT IT NOW OPERATES ONLY THREE TRAINS IN EACH
DIRECTION ON WEEKDAYS AND NONE ON WEEKENDS.  THE LAST REDUCTION WAS
AUTHORIZED ON JULY 14, 1960. 

ON DECEMBER 30, 1960, APPELLEE FILED A NOTICE WITH THE INTERSTATE
COMMERCE COMMISSION STATING THAT IT WOULD DISCONTINUE ALL PASSENGER
TRAIN SERVICE ON JANUARY 30, 1961.  ON JANUARY 9, 1961, APPELLANTS
PETITIONED THE INTERSTATE COMMERCE COMMISSION TO DISMISS THE CASE
WITHOUT PREJUDICE.  SINCE APPELLEE OPERATED TRAINS SOLELY IN NEW
JERSEY, APPELLANTS ARGUED THAT THE CASE WAS NOT, IN THE FIRST INSTANCE,
WITHIN THE JURISDICTION OF THE COMMISSION.  THE COMMISSION AGREED AND,
ON JANUARY 18, DISMISSED THE NOTICE FOR WANT OF JURISDICTION.  APPELLEE
THEN BROUGHT THIS SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY TO CHALLENGE THE DISMISSAL.  A THREE-JUDGE COURT
WAS DESIGNATED IN ACCORDANCE WITH 28 U.S.C. SECS. 2321-2325 AND 2284. 
THE COURT, ONE JUDGE DISSENTING, SET ASIDE THE COMMISSION'S ORDER.  200
F. SUPP. 860.  NEW JERSEY APPEALED DIRECTLY TO THIS COURT UNDER 28
U.S.C. SEC. 1253, AND WE NOTED PROBABLE JURISDICTION.  370 U.S. 933. 

THE QUESTION PRESENTED IS WHETHER THE PROCEDURE FOR DISCONTINUING
TRAINS SET FORTH IN SEC. 13A(1) OF THE INTERSTATE COMMERCE ACT IS
AVAILABLE TO THE APPELLEE RAILROAD AS THE COURT BELOW HELD, OR WHETHER
IT MUST FOLLOW THAT SET FORTH IN SEC. 13A(2) OF THE ACT.  SECTION
13A(1) RELATES TO "THE DISCONTINUANCE  ...  OF THE OPERATION OR SERVICE
OF ANY TRAIN OR FERRY OPERATING FROM A POINT IN ONE STATE TO A POINT IN
ANY OTHER STATE."  A RAILROAD PROCEEDING UNDER THIS SECTION MUST FIRST
FILE NOTICES OF THE PROPOSED DISCONTINUANCE WITH THE INTERSTATE
COMMERCE COMMISSION, WITH THE GOVERNORS OF THE STATES IN WHICH THE
TRAIN OPERATES, AND IN EVERY STATION SERVED BY THE TRAIN.  AFTER 30
DAYS, THE RAILROAD MAY DISCONTINUE THE TRAIN UNLESS THE COMMISSION HAS
DECIDED TO INVESTIGATE THE DISCONTINUANCE.  THE COMMISSION MAY REQUIRE
THE RAILROAD TO CONTINUE OPERATIONS, PENDING ITS INVESTIGATION, FOR AN
ADDITIONAL FOUR MONTHS.  IT ALSO MAY, AT THE CONCLUSION OF THE
INVESTIGATION, ORDER SERVICE CONTINUED FOR ANOTHER YEAR, IF IT IS
"REQUIRED BY PUBLIC CONVENIENCE AND NECESSITY" AND IF IT "WILL NOT
UNDULY BURDEN INTERSTATE  ...  COMMERCE." 

SERVICE OF ANY TRAIN OR FERRY OPERATED WHOLLY WITHIN THE BOUNDARIES OF
A SINGLE STATE."  UNDER THIS SECTION, THE RAILROAD IS FIRST REQUIRED TO
SEEK RELIEF FROM THE APPROPRIATE STATE AGENCY.  ONLY AFTER THE STATE
AGENCY HAS DENIED THE APPLICATION OF DISCONTINUANCE, OR HAS LET 120
DAYS ELAPSE FROM THE TIME THE APPLICATION WAS FILED WITHOUT ACTING, CAN
THE RAILROAD SEEK AUTHORITY FROM THE INTERSTATE COMMERCE COMMISSION TO
DISCONTINUE THE TRAIN.  THE COMMISSION "MAY GRANT SUCH AUTHORITY ONLY
AFTER FULL HEARING." 

A COMPARISON OF THE LANGUAGE OF SEC. 13A(1), WHICH APPLIES TO "ANY
TRAIN  ...  OPERATING FROM A POINT IN ONE STATE TO A POINT IN ANY OTHER
STATE", AND OF SEC. 13A(2), WHICH APPLIES TO "ANY TRAIN ...  OPERATED
WHOLLY WITHIN THE BOUNDARIES OF A SINGLE STATE", MAKES IT CLEAR THAT
THE STATUTE, ON ITS FACE, REQUIRES APPELLEE TO PROCEED UNDER THE LATTER
POINT IN ANY OTHER STATE."  THAT APPELLEE'S PASSENGERS, BY OTHER
CONVEYANCES, CROSS A STATE LINE DOES NOT ALTER THE CONCLUSION; THE
STATUTE SPEAKS NOT OF INTERSTATE COMMERCE BUT OF THE PHYSICAL LIMITS OF
A TRAIN'S OR FERRY'S OPERATIONS.  (FN1) 

ANY DOUBT ABOUT THIS CONSTRUCTION OF THE STATUTE IS DISPELLED BY AN
EXAMINATION OF ITS LEGISLATIVE HISTORY.  SECTION 13A WAS ENACTED BY
CONGRESS AS PART OF THE TRANSPORTATION ACT OF 1958.  THE LEGISLATIVE
HISTORY OF THAT ACT REVEALS CONGRESS' CONCERN ABOUT THE FINANCIAL
PLIGHT OF RAILROADS, ATTRIBUTABLE IN PART TO THE LOSSES SUSTAINED IN
OPERATING PASSENGER TRAINS.  TO DISCONTINUE THESE TRAINS BEFORE THE
ENACTMENT OF SEC. 13A, THE RAILROADS WERE REQUIRED IN ALL CASES TO SEEK
AUTHORITY FROM EACH OF THE STATES SERVED.  SEE 104 CONG. REC. 10842
10843, 10851.  WITHOUT CONCURRENCE OF ALL THE STATES AFFECTED, THE
RAILROAD MIGHT BE COMPELLED TO CONTINUE OPERATIONS DESPITE SERIOUS
LOSSES.  THE INTERSTATE COMMERCE COMMISSION WAS ABLE TO GIVE ONLY
PARTIAL RELIEF.  IT COULD AUTHORIZE THE TOTAL ABANDONMENT OF A LINE OF
RAILROAD UNDER SEC. 1(18) OF THE ACT, EVEN IF THE LINE WAS WHOLLY
WITHIN THE BOUNDARIES OF ONE STATE.  COLORADO V. UNITED STATES, 271
U.S. 153.  HOWEVER THE COMMISSION COULD NOT PERMIT PARTIAL
DISCONTINUANCE OF SERVICE OVER A LINE OF RAILROAD, WHETHER THE LINE
CROSSED STATE BOUNDARIES OR NOT.  BOARD OF PUBLIC UTILITY COMM'RS OF
NEW JERSEY V. UNITED STATES, 158 F. SUPP. 98, PROBABLE JURISDICTION
NOTED, 357 U.S. 917, DISMISSED AS MOOT, 359 U.S. 982.   (FN2)  SEE
PALMER V. MASSACHUSETTS, 308 U.S. 79, 84-85.  THUS THE COMMISSION COULD
NOT PERMIT DISCONTINUANCE OF PASSENGER OPERATIONS WHILE THE RAILROAD
CONTINUED TO CARRY FREIGHT OVER THE SAME LINE.  (FN3) 

AS INITIALLY PROPOSED IN THE SENATE, THE INTERSTATE COMMERCE
COMMISSION WOULD HAVE HAD POWER UNDER SEC. 13A TO PERMIT DISCONTINUANCE
"OF THE OPERATION OR SERVICE OF ANY TRAIN OR FERRY ENGAGED IN THE
TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE, FOREIGN AND
INTRASTATE COMMERCE  ...  OR OF THE OPERATION OR SERVICE OF ANY
STATION, DEPOT OR OTHER FACILITY."  S. 3778, 85TH CONG., 2D SESS.
OPPOSITION TO THE BILL FOCUSED UPON THE REDUCTION OF STATE POWERS TO
CONTROL LOCAL TRAIN OPERATIONS.   E.G., 104 CONG.  REC. 10850.  A
COMPROMISE AMENDMENT IN THE SENATE CHANGED SEC. 13A SO THAT THE
COMMISSION'S POWER WOULD EXTEND ONLY TO "ANY TRAIN OR FERRY ENGAGED IN
THE TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OF FOREIGN
COMMERCE."  104 CONG. REC. 10862-10866.  REFERENCE TO INTRASTATE
TRANSPORTATION WAS ELIMINATED.  AND AS FINALLY REPORTED OUT OF
CONFERENCE, THE ACT WAS IN ITS PRESENT FORM.  THE INTERSTATE COMMERCE
COMMISSION'S JURISDICTION WAS LIMITED, IN THE FIRST INSTANCE, TO THE
"DISCONTINUANCE  ...  OF THE OPERATION OR SERVICE OF ANY TRAIN OR FERRY
OPERATING FROM A POINT IN ONE STATE TO A POINT IN ANY OTHER STATE." 

SENATOR SMATHERS, THE CHAIRMAN OF THE SURFACE TRANSPORTATION
SUBCOMMITTEE OF THE SENATE INTERSTATE AND FOREIGN COMMERCE COMMITTEE,
SAID, IN DESCRIBING THE SENATE COMPROMISE AMENDMENT, THAT: 

"ANY TRAIN WHICH OPERATES WITHIN A STATE, WHOSE ORIGIN AND
DESTINATION ARE WITHIN THE STATE - THAT IS, ANY TRAIN WITH INTRASTATE
CHARACTERISTICS - TOGETHER WITH THE FACILITIES USE BY THE TRAIN, SHALL
BE COMPLETELY UNDER THE AUTHORITY OF THE STATE PUBLIC UTILITIES
COMMISSION."  104 CONG. REC. 10852.  (FN4) 

CONGRESSMAN HARRIS, CHAIRMAN OF THE HOUSE INTERSTATE AND FOREIGN
COMMERCE COMMITTEE, SIMILARLY INTERPRETED THE MORE RESTRICTIVE HOUSE
VERSION, H.R. 12832.  (FN5)  HE SAID THE INTERSTATE COMMERCE COMMISSION
WAS LIMITED TO AUTHORIZING THE DISCONTINUANCE: 

"OF A TRAIN OR FERRY ON A LINE OF RAILROAD NOT LOCATED WHOLLY WITHIN
A SINGLE STATE.  THIS LIMITATION IS CONTAINED IN THE BILL BEING
REPORTED BECAUSE THE COMMITTEE FEELS THAT THE RECORD AT THIS TIME DOES
NOT SUPPORT THE BROADER CHANGE IN VENUE, REQUESTED BY THE RAILROADS,
WHICH WOULD HAVE COVERED INTERSTATE COMMERCE COMMISSION JURISDICTION
ALSO OVER OPERATIONS MORE LOCAL IN CHARACTER, SUCH AS THOSE OF A BRANCH
LINE OR OTHER LINE OF RAILROAD LOCATED SOLELY WITHIN ONE STATE."  104
CONG. REC. 12533. 

CONGRESSMAN HARRIS REPEATEDLY STATED THAT EVEN IF THE TRAIN IN
QUESTION OPERATED ON AN INTERSTATE LINE, THE STATE REGULATORY AGENCY
WOULD HAVE JURISDICTION IF THE TRAIN STARTED AND ENDED WITHIN THE
STATE.  104 CONG. REC. 12530, 12542. 

FINALLY, SENATOR SMATHERS' COMMENTS, MADE AFTER THE SENATE-HOUSE
CONFERENCE CHANGED THE BILL TO ITS PRESENT FORM, SHOULD BE NOTED.  HE
SAID: 

"WE PROTECTED THE RIGHT OF THE STATES  ...  BY LEAVING TO THE STATE
REGULATORY AGENCIES THE RIGHT TO REGULATE AND HAVE A FINAL DECISION
WITH RESPECT TO THE DISCONTINUANCE OF TRAIN SERVICE WHICH ORIGINATED
AND ENDED WITHIN ONE PARTICULAR STATE, EXCEPT WHEN IT COULD BE
ESTABLISHED THAT INTRASTATE SERVICE WAS A BURDEN ON INTERSTATE
COMMERCE. 

"IN ADDITION, THE SENATE RECEDED ON A PROVISION UNDER WHICH WE HAD
GIVEN THE INTERSTATE COMMERCE COMMISSION JURISDICTION ALSO TO
DISCONTINUE SERVICE IN DEPOTS, TERMINALS, AND OTHER SUCH FACILITIES IN
CONNECTION WITH THE OPERATION OF RAILROADS.  WE LEFT THAT MATTER IN THE
HANDS OF THE STATE REGULATORY AGENCIES."  104 CONG. REC. 15528. 

IT IS CLEAR TO US FROM THIS HISTORY, AS IT WAS TO THE COMMISSION,
THAT CONGRESS INTENDED TO, AND DID, LEAVE "JURISDICTION OVER TRAINS
OPERATING WHOLLY WITHIN A SINGLE STATE  ...  WITH STATE REGULATORY
COMMISSIONS." 

THE COURT BELOW DISREGARDED THE PLAIN WORDS OF THE STATUTE AND WHAT
WE BELIEVE IS THE PERTINENT LEGISLATIVE HISTORY AND RESTED ITS DECISION
ON THE GROUND THAT TO APPLY SEC.  13A(1) SO RESTRICTIVELY WOULD "THWART
THE APPARENT PURPOSE OF THE CONGRESS IN ADOPTING IT."  200 F. SUPP., AT
864.  THAT PURPOSE WAS, AS THE COURT BELOW OBSERVED, REMEDIAL.  BUT IT
WAS CONDITIONED BY A DESIRE TO PROTECT STATE JURISDICTION OVER LOCAL
OPERATIONS.  TO IGNORE THIS WE CONCLUDE WAS ERROR.  THEREFORE THE
JUDGMENT OF THE COURT BELOW MUST BE REVERSED. 

FN1  APPARENTLY ONE GROUND FOR THE DECISION BELOW WAS THE BELIEF (1)
THAT "OPERATION OR SERVICE" OF A TRAIN INCLUDED BUS SERVICE OR (2) THAT
"TRAIN" INCLUDED A BUS EXTENSION.  AS TO THE FIRST, IT SHOULD BE NOTED
THAT THE INTERSTATE COMMERCE COMMISSION HAS DECIDED, IN INTERPRETING
SEC. 1(18) OF THE ACT, THAT APPELLEE'S BUS SERVICE TO NEW YORK IS NOT
PART OF A "LINE OF RAILROAD" AND THAT APPELLEE NEED NOT OBTAIN A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY BEFORE PROVIDING THE
BUS TRANSPORTATION.  NEW YORK, S.&W.R. CO. COMMON CARRIER APPLICATION,
46 M.C.C. 713, 725.  ADMITTEDLY "LINE OF RAILROAD" IS A DIFFERENT TERM
FROM "OPERATION OR SERVICE OF ANY TRAIN."  HOWEVER WE SHOULD BE LOATH
TO SUGGEST THAT A TRAIN COULD OPERATE WHERE NO LINE OF RAILROAD
EXISTED. 

AS TO THE SECOND ALTERNATIVE, IT IS ANSWER ENOUGH TO NOTE THAT THE
STATUTE READS "ANY TRAIN OR FERRY."  NO MENTION OF "BUS" IS MADE. 

FN2  THE RAILROADS APPEALING TO THIS COURT DID NOT TAKE ISSUE WITH
THE INTERSTATE COMMERCE COMMISSION DECISIONS HOLDING THAT THE
COMMISSION LACKED POWER TO AUTHORIZE PARTIAL DISCONTINUANCES.  THEY
ARGUED THAT INSTEAD OF PARTIALLY DISCONTINUING SERVICE THEY WERE
ABANDONING A LINE OF RAILROAD. 

FN3  IN THE BOARD OF PUBLIC UTILITY COMM'RS OF NEW JERSEY CASE THE
THREE-JUDGE DISTRICT COURT HELD THAT THE INTERSTATE COMMERCE COMMISSION
COULD NOT ALLOW THE NEW YORK CENTRAL RAILROAD TO DISCONTINUE ITS
PASSENGER FERRIES ACROSS THE HUDSON RIVER, WHILE CONTINUING TO OPERATE
FERRIES FOR FREIGHT, IF THE FERRIES WERE ALL PART OF THE SAME LINE OF
RAILROAD.  (UNDER SEC. 1(3) OF THE ACT, THE TERM "RAILROAD" INCLUDES
"FERRIES USED BY OR OPERATED IN CONNECTION WITH ANY RAILROAD.")  AFTER
CONGRESS PASSED SEC. 13A, THE NEW YORK CENTRAL RAILROAD, AMONG OTHERS,
SUCCEEDED IN ELIMINATING ITS HUDSON RIVER PASSENGER FERRIES.  SEE NEW
JERSEY V. UNITED STATES, 168 F. SUPP. 324, AFF'D PER CURIAM, 359 U.S.
27.  IN FACT, THE NEW YORK CENTRAL RAILROAD CLAIMED THAT ITS INABILITY
TO DISCONTINUE THE PASSENGER FERRIES WAS THE REASON CONGRESS ENACTED
SEC. 13A.  168 F. SUPP., AT 337, N. 1. 

FN4  APPARENTLY THOSE WHO WERE CONCERNED WITH THE PROTECTION OF THE
RIGHTS OF THE STATES WERE NOT SATISFIED WITH THE COMPROMISE AMENDMENT,
PERHAPS BECAUSE IT RETAINED THE PHRASE "ENGAGED IN THE TRANSPORTATION
OF PASSENGERS OR PROPERTY IN INTERSTATE  ...  COMMERCE."  IN ANY EVENT,
THEY WERE SUCCESSFUL IN OBTAINING THE OMISSION OF ANY REFERENCE TO
TRANSPORTATION IN INTERSTATE COMMERCE, SINCE THE ACT AS PASSED LIMITED
INTERSTATE COMMERCE COMMISSION JURISDICTION, IN THE FIRST INSTANCE, TO
THE DISCONTINUANCE OF "ANY TRAIN  ...  OPERATING FROM A POINT IN ONE
STATE TO A POINT IN ANY OTHER STATE."    FN5  H.R. 12832 PROVIDED THAT:
"THIS SECTION (SEC. 13A) SHALL NOT APPLY TO THE OPERATIONS OF OR
SERVICES PERFORMED BY ANY CARRIER BY RAILROAD ON A LINE OF RAILROAD
LOCATED WHOLLY WITHIN A SINGLE STATE."  104 CONG. REC. 12547.  ALSO,
THE HOUSE BILL ELIMINATED THE INTERSTATE COMMERCE COMMISSION'S
JURISDICTION OVER DISCONTINUANCE OF STATIONS, DEPOTS AND OTHER
FACILITIES, LEAVING THE STATE REGULATORY AGENCIES' POWER UNTOUCHED. 
THIS CHANGE, EMBODIED IN THE ACT, IS ADDITIONAL EVIDENCE OF CONGRESS'
INTENT TO LEAVE REGULATION OF LOCAL OPERATIONS TO THE STATES. 
..END :












MCCULLOCH V. SOCIEDAD NACIONAL DE MARINEROS DE HONDURAS 372 U.S. 10 


NO. 107.  ARGUED DECEMBER 11-12, 1962.  - DECIDED FEBRUARY 18, 1963.* -
201 F. SUPP. 82, AFFIRMED.  - 300 F.2D 222, JUDGMENT VACATED AND CASES
REMANDED. 

*TOGETHER WITH NO. 91, MCLEOD, REGIONAL DIRECTOR, NATIONAL LABOR
RELATIONS BOARD V. EMPRESA HONDURENA DE VAPORES, S.A., AND NO. 93,
NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, V. EMPRESA HONDURENA DE
VAPORES, S.A., BOTH ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT, ARGUED AND DECIDED ON THE SAME DATES. 


1.  A CORPORATION ORGANIZED AND DOING BUSINESS IN THE UNITED STATES
BENEFICIALLY OWNS VESSELS WHICH MAKE REGULAR SAILINGS BETWEEN THE
UNITED STATES, LATIN AMERICAN PORTS AND OTHER PORTS, TRANSPORTING THE
CORPORATION'S PRODUCTS AND OTHER SUPPLIES.  EACH OF THE VESSELS IS
LEGALLY OWNED BY A FOREIGN SUBSIDIARY OF THE AMERICAN CORPORATION,
FLIES THE FLAG OF A FOREIGN NATION, CARRIES A FOREIGN CREW REPRESENTED
BY A FOREIGN UNION AND HAS OTHER CONTACTS WITH THE NATION OF ITS FLAG. 
HELD:  THE JURISDICTIONAL PROVISIONS OF THE NATIONAL LABOR RELATIONS
ACT DO NOT EXTEND TO THE MARITIME OPERATIONS OF SUCH FOREIGN-FLAG SHIPS
EMPLOYING ALIEN SEAMEN.  PP. 11-22. 

2.  ALTHOUGH THE MEMBERS OF THE CREWS OF THESE VESSELS WERE ALREADY
REPRESENTED BY A FOREIGN UNION, THE NATIONAL LABOR RELATIONS BOARD HELD
THAT THE ACT EXTENDS TO THEM, AND IT ORDERED REPRESENTATION ELECTIONS. 
THIS ASSERTION OF POWER TO DETERMINE THE REPRESENTATION OF FOREIGN
SEAMEN ABOARD VESSELS UNDER FOREIGN FLAGS AROUSED VIGOROUS PROTESTS
FROM FOREIGN GOVERNMENTS AND CREATED INTERNATIONAL PROBLEMS FOR OUR
GOVERNMENT.  ON APPLICATION OF THE FOREIGN BARGAINING AGENT OF THE
VESSELS' CREWMEN, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA ENJOINED THE MEMBERS OF THE BOARD FROM CONDUCTING THE
ELECTIONS.  HELD:  THIS ACTION FALLS WITHIN THE LIMITED EXCEPTION
FASHIONED IN LEEDOM V. KYNE, 358 U.S. 184; THE DISTRICT COURT HAD
JURISDICTION OF THE ORIGINAL SUIT TO SET ASIDE THE BOARD'S
DETERMINATION BECAUSE IT WAS MADE IN EXCESS OF THE BOARD'S POWERS; AND
THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED.  PP. 14-17. 

MCCULLOCH, CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, ET AL. V. SOCIEDAD
NACIONAL DE MARINEROS DE HONDURAS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE COMPANION CASES, INVOLVING THE SAME FACTS, QUESTION THE
COVERAGE OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 61 STAT. 136,
73 STAT. 541, 29 U.S.C. SECS. 151 ET SEQ. A CORPORATION ORGANIZED AND
DOING BUSINESS IN THE UNITED STATES BENEFICIALLY OWNS SEAGOING VESSELS
WHICH MAKE REGULAR SAILINGS BETWEEN UNITED STATES, LATIN AMERICAN AND
OTHER PORTS TRANSPORTING THE CORPORATION'S PRODUCTS AND OTHER SUPPLIES;
EACH OF THE VESSELS IS LEGALLY OWNED BY A FOREIGN SUBSIDIARY OF THE
AMERICAN CORPORATION, FLIES THE FLAG OF A FOREIGN NATION, CARRIES A
FOREIGN CREW AND HAS OTHER CONTACTS WITH THE NATION OF ITS FLAG.  THE
QUESTION ARISING IS WHETHER THE ACT EXTENDS TO THE CREWS ENGAGED IN
SUCH A MARITIME OPERATION.  THE NATIONAL LABOR RELATIONS BOARD IN A
REPRESENTATION PROCEEDING ON THE APPLICATION OF THE NATIONAL MARITIME
UNION HELD THAT IT DOES AND ORDERED AN ELECTION.  134 N.L.R.B. 287. 
THE VESSELS' FOREIGN OWNER SOUGHT TO ENJOIN THE BOARD'S REGIONAL
DIRECTOR FROM HOLDING THE ELECTION, BUT THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK DENIED THE REQUESTED RELIEF.  200 F.
SUPP. 484.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED,
HOLDING THAT THE ACT DID NOT APPLY TO THE MARITIME OPERATIONS HERE AND
THUS THE BOARD HAD NO POWER TO DIRECT THE ELECTION.  300 F.2D 222.  THE
N.M.U.  HAD INTERVENED IN THE PROCEEDING, AND IT PETITIONED FOR A WRIT
OF CERTIORARI (NO. 93), AS DID THE REGIONAL DIRECTOR (NO. 91). 
MEANWHILE, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA, ON APPLICATION OF THE FOREIGN BARGAINING AGENT OF THE
VESSELS' CREWMEN, ENJOINED THE BOARD MEMBERS IN NO. 107.  201 F. SUPP.
82.  WE GRANTED EACH OF THE THREE PETITIONS FOR CERTIORARI, 370 U.S.
915, AND CONSOLIDATED THE CASES FOR ARGUMENT.  (FN1) 

WE HAVE CONCLUDED THAT THE JURISDICTIONAL PROVISIONS OF THE ACT DO
NOT EXTEND TO MARITIME OPERATIONS OF FOREIGN-FLAG SHIPS EMPLOYING ALIEN
SEAMEN. 

      I. 

THE NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, FILED A PETITION IN
1959 WITH THE NATIONAL LABOR RELATIONS BOARD SEEKING CERTIFICATION
UNDER SEC. 9(C) OF THE ACT, 29 U.S.C. SEC. 159(C), AS THE
REPRESENTATIVE OF THE UNLICENSED SEAMEN EMPLOYED UNDER CERTAIN HONDURAN
FLAG VESSELS OWNED BY EMPRESA HONDURENA DE VAPORES, S.A., A HONDURAN
CORPORATION.  THE PETITION WAS FILED AGAINST UNITED FRUIT COMPANY, A
NEW JERSEY CORPORATION WHICH WAS ALLEGED TO BE THE OWNER OF THE
MAJORITY OF EMPRESA'S STOCK.  EMPRESA INTERVENED AND ON HEARING IT WAS
SHOWN THAT UNITED FRUIT OWNS ALL OF ITS STOCK AND ELECTS ITS DIRECTORS,
THOUGH NO OFFICER OR DIRECTOR OF EMPRESA IS AN OFFICER OR DIRECTOR OF
UNITED FRUIT AND ALL ARE RESIDENTS OF HONDURAS.  IN TURN THE PROOF WAS
THAT UNITED FRUIT IS OWNED BY CITIZENS OF THE UNITED STATES AND
MAINTAINS ITS PRINCIPAL OFFICE AT BOSTON.  ITS BUSINESS WAS SHOWN TO BE
THE CULTIVATION, GATHERING, TRANSPORTING AND SALE OF BANANAS, SUGAR,
CACAO AND OTHER TROPICAL PRODUCE RAISED IN CENTRAL AND SOUTH AMERICAN
COUNTRIES AND SOLD IN THE UNITED STATES. 

UNITED FRUIT MAINTAINS A FLEET OF CARGO VESSELS WHICH IT UTILIZES IN
THIS TRADE.  A PORTION OF THE FLEET CONSISTS OF 13 HONDURAN-REGISTERED
VESSELS OPERATED (FN2) BY EMPRESA AND TIME CHARTERED TO UNITED FRUIT,
WHICH VESSELS WERE INCLUDED IN NATIONAL MARITIME UNION'S REPRESENTATION
PROCEEDING.  THE CREWS ON THESE VESSELS ARE RECRUITED BY EMPRESA IN
HONDURAS.  THEY ARE HONDURAN CITIZENS (SAVE ONE JAMAICAN) AND CLAIM
THAT COUNTRY AS THEIR RESIDENCE AND HOME PORT.  THE CREW ARE REQUIRED
TO SIGN HONDURAN SHIPPING ARTICLES, AND THEIR WAGES, TERMS AND
CONDITION OF EMPLOYMENT, DISCIPLINE, ETC., ARE CONTROLLED BY A
BARGAINING AGREEMENT BETWEEN EMPRESA AND A HONDURAN UNION, SOCIEDAD
NACIONAL DE MARINEROS DE HONDURAS.  UNDER THE HONDURAN LABOR CODE ONLY
A UNION WHOSE "JURIDIC PERSONALITY" IS RECOGNIZED BY HONDURAS AND WHICH
IS COMPOSED OF AT LEAST 90% OF HONDURAN CITIZENS CAN REPRESENT THE
SEAMEN ON HONDURAN-REGISTERED SHIPS.  THE N.M.U. FULFILS NEITHER
REQUIREMENT.  FURTHER, UNDER HONDURAN LAW RECOGNITION OF SOCIEDAD AS
THE BARGAINING AGENT COMPELS EMPRESA TO DEAL EXCLUSIVELY WITH IT ON ALL
MATTERS COVERED BY THE CONTRACT.  THE CURRENT AGREEMENT IN ADDITION TO
RECOGNITION OF SOCIEDAD PROVIDES FOR A UNION SHOP, WITH A NO-STRIKE-OR
LOCKOUT PROVISION, AND SETS UP WAGE SCALES, SPECIAL ALLOWANCES,
MAINTENANCE AND CURE PROVISIONS, HOURS OF WORK, VACATION TIME,
HOLIDAYS, OVERTIME, ACCIDENT PREVENTION, AND OTHER DETAILS OF
EMPLOYMENT AS WELL. 

UNITED FRUIT, HOWEVER, DETERMINES THE PORTS OF CALL OF THE VESSELS,
THEIR CARGOES AND SAILINGS, INTEGRATING THE SAME INTO ITS FLEET
ORGANIZATION.  WHILE THE VOYAGES ARE FOR THE MOST PART BETWEEN CENTRAL
AND SOUTH AMERICAN PORTS AND THOSE OF THE UNITED STATES, THE VESSELS
EACH CALL AT REGULAR INTERVALS AT HONDURAN PORTS FOR THE PURPOSE OF
TAKING ON AND DISCHARGING CARGO AND, WHERE NECESSARY, RENEWING THE
SHIP'S ARTICLES. 

                                  II. 

THE BOARD CONCLUDED FROM THESE FACTS THAT UNITED FRUIT OPERATED A
SINGLE, INTEGRATED MARITIME OPERATION WITHIN WHICH WERE THE EMPRESA
VESSELS, REASONING THAT UNITED FRUIT WAS A JOINT EMPLOYER WITH EMPRESA
OF THE SEAMEN COVERED BY N.M.U.'S PETITION.  CITING ITS OWN WEST INDIA
FRUIT & STEAMSHIP CO. OPINION, 130 N.L.R.B. 343 (1961), IT CONCLUDED
THAT THE MARITIME OPERATIONS INVOLVED SUBSTANTIAL UNITED STATES
CONTACTS, OUTWEIGHING THE NUMEROUS FOREIGN CONTACTS PRESENT.  THE BOARD
HELD THAT EMPRESA WAS ENGAGED IN "COMMERCE" WITHIN THE MEANING OF SEC.
2(6) OF THE ACT (FN3) AND THAT THE MARITIME OPERATIONS "AFFECTED
COMMERCE" WITHIN SEC. 2(7), (FN4) MEETING THE JURISDICTIONAL
REQUIREMENT OF SEC.  9(C)(1).  (FN5)  IT THEREFORE ORDERED AN ELECTION
TO BE HELD AMONG THE SEAMEN SIGNING ON EMPRESA'S VESSELS TO DETERMINE
WHETHER THEY WISHED N.M.U., SINDICATO MARITIMO NACIONAL DE HONDURAS,
(FN6) OR NO UNION TO REPRESENT THEM. 

AS WE HAVE INDICATED, BOTH EMPRESA AND SOCIEDAD BROUGHT SUITS IN
FEDERAL DISTRICT COURTS TO PREVENT THE ELECTION, EMPRESA PROCEEDING IN
NEW YORK AGAINST THE REGIONAL DIRECTOR - NOS. 91 AND 93 - AND SOCIEDAD
IN THE DISTRICT OF COLUMBIA AGAINST THE MEMBERS OF THE BOARD - NO.
107.  IN NOS. 91 AND 93 THE JURISDICTION OF THE DISTRICT COURT WAS
CHALLENGED ON TWO GROUNDS:  FIRST, THAT REVIEW OF REPRESENTATION
PROCEEDINGS IS LIMITED BY SEC. 9(D) OF THE ACT, 29 U.S.C. SEC. 159(D),
TO INDIRECT REVIEW AS PART OF A PETITION FOR ENFORCEMENT OR REVIEW OF
AN ORDER ENTERED UNDER SEC. 10(C), 29 U.S.C. SEC. 160(C); AND, SECOND,
THAT THE BOARD MEMBERS WERE INDISPENSABLE PARTIES TO THE ACTION.  THE
CHALLENGE BASED UPON SEC. 9(D) WAS NOT RAISED OR ADJUDICATED IN
SOCIEDAD'S ACTION AGAINST THE BOARD MEMBERS - NO. 107 - AND THE
INDISPENSABLE-PARTIES CHALLENGE IS OF COURSE NOT AN ISSUE.  SOCIEDAD IS
NOT A PARTY IN NOS. 91 AND 93, ALTHOUGH THE IMPACT OF THE BOARD ORDER -
THE SAME ORDER CHALLENGED IN NO. 107 - IS FELT BY IT.  THAT ORDER HAS
THE EFFECT OF CANCELING SOCIEDAD'S BARGAINING AGREEMENT WITH EMPRESA'S
SEAMEN, SINCE SOCIEDAD IS NOT ON THE BALLOT CALLED FOR BY THE BOARD. 
NO. 107, THEREFORE, PRESENTS THE QUESTION IN BETTER PERSPECTIVE, AND WE
HAVE CHOSEN IT AS THE VEHICLE FOR OUR ADJUDICATION ON THE MERITS.  THIS
OBVIATES OUR PASSING ON THE JURISDICTION QUESTIONS RAISED IN NOS. 91
AND 93, SINCE THE DISPOSITION OF THOSE CASES IS CONTROLLED BY OUR
DECISION IN NO. 107. 

WE ARE NOT OF COURSE PRECLUDED FROM REEXAMINING THE JURISDICTION OF
THE DISTRICT COURT IN SOCIEDAD'S ACTION, MERELY BECAUSE NO CHALLENGE
WAS MADE BY THE PARTIES.  MITCHELL V. MAURER, 293 U.S. 237, 244
(1934).  HAVING EXAMINED THE QUESTION WHETHER THE DISTRICT COURT HAD
JURISDICTION AT THE INSTANCE OF SOCIEDAD TO ENJOIN THE BOARD'S ORDER,
WE HOLD THAT THE ACTION FALLS WITHIN THE LIMITED EXCEPTION FASHIONED IN
LEEDOM V. KYNE, 358 U.S. 184 (1958).  IN THAT CASE JUDICIAL
INTERVENTION WAS PERMITTED SINCE THE BOARD'S ORDER WAS "IN EXCESS OF
ITS DELEGATED POWERS AND CONTRARY TO A SPECIFIC PROHIBITION IN THE
ACT."  ID., AT 188.  WHILE HERE THE BOARD HAS VIOLATED NO SPECIFIC
PROHIBITION IN THE ACT, THE OVERRIDING CONSIDERATION IS THAT THE
BOARD'S ASSERTION OF POWER TO DETERMINE THE REPRESENTATION OF FOREIGN
SEAMEN ABOARD VESSELS UNDER FOREIGN FLAGS HAS AROUSED VIGOROUS PROTESTS
FROM FOREIGN GOVERNMENTS AND CREATED INTERNATIONAL PROBLEMS FOR OUR
GOVERNMENT.  IMPORTANT INTERESTS OF THE IMMEDIATE PARTIES ARE OF COURSE
AT STAKE.  BUT THE PRESENCE OF PUBLIC QUESTIONS PARTICULARLY HIGH IN
THE SCALE OF OUR NATIONAL INTEREST BECAUSE OF THEIR INTERNATIONAL
COMPLEXION IS A UNIQUELY COMPELLING JUSTIFICATION FOR PROMPT JUDICIAL
RESOLUTION OF THE CONTROVERSY OVER THE BOARD'S POWER.  NO QUESTION OF
REMOTELY COMPARABLE URGENCY WAS INVOLVED IN KYNE, WHICH WAS A PURELY
DOMESTIC ADVERSARY SITUATION.  THE EXCEPTION RECOGNIZED TODAY IS
THEREFORE NOT TO BE TAKEN AS AN ENLARGEMENT OF THE EXCEPTION IN KYNE. 

                         III. 

SINCE THE PARTIES ALL AGREE THAT THE CONGRESS HAS CONSTITUTIONAL
POWER TO APPLY THE NATIONAL LABOR RELATIONS ACT TO THE CREWS WORKING
FOREIGN-FLAG SHIPS, AT LEAST WHILE THEY ARE IN AMERICAN WATERS, THE
EXCHANGE, 7 CRANCH 116, 143 (1812); WILDENHUS'S CASE, 120 U.S. 1, 11
(1887); BENZ V. COMPANIA NAVIERA HIDALGO, 353 U.S. 138, 142 (1957), WE
GO DIRECTLY TO THE QUESTION WHETHER CONGRESS EXERCISED THAT POWER.  OUR
DECISION ON THIS POINT BEING DISPOSITIVE OF THE CASE, WE DO NOT REACH
THE OTHER QUESTIONS RAISED BY THE PARTIES AND THE AMICI CURIAE. 

THE QUESTION OF APPLICATION OF THE LAWS OF THE UNITED STATES TO
FOREIGN-FLAG SHIPS AND THEIR CREWS HAS ARISEN OFTEN AND IN VARIOUS
CONTEXTS.  (FN7)  AS TO THE APPLICATION OF THE NATIONAL LABOR RELATIONS
ACT AND ITS AMENDMENTS, THE BOARD HAS EVOLVED A TEST RELYING ON THE
RELATIVE WEIGHT OF A SHIP'S FOREIGN AS COMPARED WITH ITS AMERICAN
CONTACTS.  THAT TEST LED THE BOARD TO CONCLUDE HERE, AS IN WEST INDIA
FRUIT & STEAMSHIP CO., SUPRA, THAT THE FOREIGN-FLAG SHIPS' ACTIVITIES
AFFECTED "COMMERCE" AND BROUGHT THEM WITHIN THE COVERAGE OF THE ACT. 
WHERE THE BALANCING OF THE VESSEL'S CONTACTS HAS RESULTED IN A CONTRARY
FINDING, THE BOARD HAS CONCLUDED THAT THE ACT DOES NOT APPLY.  (FN8) 

SIX YEARS AGO THIS COURT CONSIDERED THE QUESTION OF THE APPLICATION
OF THE TAFT-HARTLEY AMENDMENTS TO THE ACT IN A SUIT FOR DAMAGES
"RESULTING FROM THE PICKETING OF A FOREIGN SHIP OPERATED ENTIRELY BY
FOREIGN SEAMEN UNDER FOREIGN ARTICLES WHILE THE VESSEL WAS TEMPORARILY
IN AN AMERICAN PORT."  BENZ V. COMPANIA NAVIERA HIDALGO, SUPRA, AT
139.  WE HELD THAT THE ACT DID NOT APPLY, SEARCHING THE LANGUAGE AND
THE LEGISLATIVE HISTORY AND CONCLUDING THAT THE LATTER "INESCAPABLY
DESCRIBES THE BOUNDARIES OF THE ACT AS INCLUDING ONLY THE WORKINGMEN OF
OUR OWN COUNTRY AND ITS POSSESSIONS."  ID., AT 144.  SUBSEQUENTLY, IN
MARINE COOKS & STEWARDS V. PANAMA S.S. CO., 362 U.S. 365 (1960), WE
HELD THAT THE NORRIS-LAGUARDIA ACT, 29 U.S.C. SEC. 101, DEPRIVED A
FEDERAL DISTRICT COURT OF JURISDICTION TO ENJOIN PICKETING OF A FOREIGN
FLAG SHIP, SPECIFICALLY LIMITING THE HOLDING TO THE JURISDICTION OF THE
COURT "TO ISSUE THE INJUNCTION IT DID UNDER THE CIRCUMSTANCES SHOWN." 
ID., AT 372.  THAT CASE CANNOT BE REGARDED AS LIMITING THE EARLIER BENZ
HOLDING, HOWEVER, SINCE NO QUESTION AS TO "WHETHER THE PICKETING  ...
WAS TORTIOUS UNDER STATE OR FEDERAL LAW" WAS EITHER PRESENTED OR
DECIDED.  IBID.  INDEED, THE COURT SPECIFICALLY NOTED THAT THE
APPLICATION OF THE NORRIS-LAGUARDIA ACT "TO CURTAIL AND REGULATE THE
JURISDICTION OF COURTS" DIFFERS FROM THE APPLICATION OF THE TAFT
HARTLEY ACT "TO REGULATE THE CONDUCT OF PEOPLE ENGAGED IN LABOR
DISPUTES."  IBID.; SEE COMMENT, 69 YALE L. J. 498, 523-525 (1960). 

IT IS CONTENDED THAT THIS CASE IS NONETHELESS DISTINGUISHABLE FROM
BENZ IN TWO RESPECTS.  FIRST, HERE THERE IS A FLEET OF VESSELS NOT
TEMPORARILY IN UNITED STATES WATERS BUT OPERATING IN A REGULAR COURSE
OF TRADE BETWEEN FOREIGN PORTS AND THOSE OF THE UNITED STATES; AND,
SECOND, THE FOREIGN OWNER OF THE SHIPS IS IN TURN OWNED BY AN AMERICAN
CORPORATION.  WE NOTE THAT BOTH OF THESE POINTS RELY ON ADDITIONAL
AMERICAN CONTACTS AND THEREFORE NECESSARILY PRESUME THE VALIDITY OF THE
"BALANCING OF CONTACTS" THEORY OF THE BOARD.  BUT TO FOLLOW SUCH A
SUGGESTED PROCEDURE TO THE ULTIMATE MIGHT REQUIRE THAT THE BOARD
INQUIRE INTO THE INTERNAL DISCIPLINE AND ORDER OF ALL FOREIGN VESSELS
CALLING AT AMERICAN PORTS.  SUCH ACTIVITY WOULD RAISE CONSIDERABLE
DISTURBANCE NOT ONLY IN THE FIELD OF MARITIME LAW BUT IN OUR
INTERNATIONAL RELATIONS AS WELL.  IN ADDITION, ENFORCEMENT OF BOARD
ORDERS WOULD PROJECT THE COURTS INTO APPLICATION OF THE SANCTIONS OF
THE ACT TO FOREIGN-FLAG SHIPS ON A PURELY AD HOC WEIGHING OF CONTACTS
BASIS.  (FN9)  THIS WOULD INEVITABLY LEAD TO EMBARRASSMENT IN FOREIGN
AFFAIRS AND BE ENTIRELY INFEASIBLE IN ACTUAL PRACTICE.  THE QUESTION,
THEREFORE, APPEARS TO US MORE BASIC; NAMELY, WHETHER THE ACT AS WRITTEN
WAS INTENDED TO HAVE ANY APPLICATION TO FOREIGN REGISTERED VESSELS
EMPLOYING ALIEN SEAMEN.    PETITIONERS SAY THAT THE LANGUAGE OF THE ACT
MAY BE READ LITERALLY AS INCLUDING FOREIGN-FLAG VESSELS WITHIN ITS
COVERAGE.  BUT, AS IN BENZ, THEY HAVE BEEN UNABLE TO POINT TO ANY
SPECIFIC LANGUAGE IN THE ACT ITSELF OR IN ITS EXTENSIVE LEGISLATIVE
HISTORY THAT REFLECTS SUCH A CONGRESSIONAL INTENT.  INDEED, THE
OPPOSITE IS TRUE AS WE FOUND IN BENZ, WHERE WE POINTED TO THE LANGUAGE
OF CHAIRMAN HARTLEY CHARACTERIZING THE ACT AS "A BILL OF RIGHTS BOTH
FOR AMERICAN WORKINGMEN AND FOR THEIR EMPLOYERS."  353 U.S., AT 144. 
WE CONTINUE TO BELIEVE THAT IF THE SPONSORS OF THE ORIGINAL ACT OR OF
ITS AMENDMENTS CONCEIVED OF THE APPLICATION NOW SOUGHT BY THE BOARD
THEY FAILED TO TRANSLATE SUCH THOUGHTS INTO DESCRIBING THE BOUNDARIES
OF THE ACT AS INCLUDING FOREIGN-FLAG VESSELS MANNED BY ALIEN CREWS. 
(FN10)  THEREFORE, WE FIND NO BASIS FOR A CONSTRUCTION WHICH WOULD
EXERT UNITED STATES JURISDICTION OVER AND APPLY ITS LAWS TO THE
INTERNAL MANAGEMENT AND AFFAIRS OF THE VESSELS HERE FLYING THE HONDURAN
FLAG, CONTRARY TO THE RECOGNITION LONG AFFORDED THEM NOT ONLY BY OUR
STATE DEPARTMENT (FN11) BUT ALSO BY THE CONGRESS.  (FN12)  IN ADDITION,
OUR ATTENTION IS CALLED TO THE WELL-ESTABLISHED RULE OF INTERNATIONAL
LAW THAT THE LAW OF THE FLAG STATE ORDINARILY GOVERNS THE INTERNAL
AFFAIRS OF A SHIP.  SEE WILDENHUS'S CASE, SUPRA, AT 12; COLOMBOS, THE
INTERNATIONAL LAW OF THE SEA (3D REV. ED. 1954), 222-223.  THE
POSSIBILITY OF INTERNATIONAL DISCORD CANNOT THEREFORE BE GAINSAID. 
ESPECIALLY IS THIS TRUE ON ACCOUNT OF THE CONCURRENT APPLICATION OF THE
ACT AND THE HONDURAN LABOR CODE THAT WOULD RESULT WITH OUR APPROVAL OF
JURISDICTION.  SOCIEDAD, CURRENTLY THE EXCLUSIVE BARGAINING AGENT OF
EMPRESA UNDER HONDURAN LAW, WOULD HAVE A HEAD-ON COLLISION WITH N.M.U.
SHOULD IT BECOME THE EXCLUSIVE BARGAINING AGENT UNDER THE ACT.  THIS
WOULD BE AGGRAVATED BY THE FACT THAT UNDER HONDURAN LAW N.M.U. IS
PROHIBITED FROM REPRESENTING THE SEAMEN ON HONDURAN-FLAG SHIPS EVEN IN
THE ABSENCE OF A RECOGNIZED BARGAINING AGENT.   THUS EVEN THOUGH
SOCIEDAD WITHDREW FROM SUCH AN INTRAMURAL LABOR FIGHT - A HIGHLY
UNLIKELY CIRCUMSTANCE - QUESTIONS OF SUCH INTERNATIONAL IMPORT WOULD
REMAIN AS TO INVITE RETALIATORY ACTION FROM OTHER NATIONS AS WELL AS
HONDURAS. 

THE PRESENCE OF SUCH HIGHLY CHARGED INTERNATIONAL CIRCUMSTANCES
BRINGS TO MIND THE ADMONITION OF MR. CHIEF JUSTICE MARSHALL IN THE
CHARMING OF BETSY, 2 CRANCH 64, 118 (1804), THAT "AN ACT OF CONGRESS
OUGHT NEVER TO BE CONSTRUED TO VIOLATE THE LAW OF NATIONS IF ANY OTHER
POSSIBLE CONSTRUCTION REMAINS  ...  ."  WE THEREFORE CONCLUDE, AS WE
DID IN BENZ, THAT FOR US TO SANCTION THE EXERCISE OF LOCAL SOVEREIGNTY
UNDER SUCH CONDITIONS IN THIS "DELICATE FIELD OF INTERNATIONAL
RELATIONS THERE MUST BE PRESENT THE AFFIRMATIVE INTENTION OF THE
CONGRESS CLEARLY EXPRESSED."  353 U.S., AT 147.  SINCE NEITHER WE NOR
THE PARTIES ARE ABLE TO FIND ANY SUCH CLEAR EXPRESSION, WE HOLD THAT
THE BOARD WAS WITHOUT JURISDICTION TO ORDER THE ELECTION.  THIS IS NOT
TO IMPLY, HOWEVER, "ANY IMPAIRMENT OF OUR OWN SOVEREIGNTY, OR
LIMITATION OF THE POWER OF CONGRESS" IN THIS FIELD.  LAURITZEN V.
LARSEN, 345 U.S. 571, 578 (1953).  IN FACT, JUST AS WE DIRECTED THE
PARTIES IN BENZ TO THE CONGRESS, WHICH "ALONE HAS THE FACILITIES
NECESSARY TO MAKE FAIRLY SUCH AN IMPORTANT POLICY DECISION," 353 U.S.,
AT 147, WE CONCLUDE HERE THAT THE ARGUMENTS SHOULD BE DIRECTED TO THE
CONGRESS RATHER THAN TO US.  CF. LAURITZEN V. LARSEN, SUPRA, AT 593. 

THE JUDGMENT OF THE DISTRICT COURT IS THEREFORE AFFIRMED IN NO. 107. 
THE JUDGMENT OF THE COURT OF APPEALS IN NOS. 91 AND 93 IS VACATED AND
THE CASES ARE REMANDED TO THAT COURT, WITH INSTRUCTIONS THAT IT REMAND
TO THE DISTRICT COURT FOR DISMISSAL OF THE COMPLAINT IN LIGHT OF OUR
DECISION IN NO. 107.  IT IS SO ORDERED. 

FN1  IN NO. 107, APPEAL WAS PERFECTED TO THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT, TO WHICH COURT WE GRANTED A WRIT OF
CERTIORARI BEFORE JUDGMENT. 

FN2  TEN OF THE 13 VESSELS ARE OWNED AND OPERATED BY EMPRESA.  THREE
ARE OWNED BY BALBOA SHIPPING CO., INC., A PANAMANIAN SUBSIDIARY OF
UNITED FRUIT.  EMPRESA ACTS AS AN AGENT FOR BALBOA IN THE MANAGEMENT OF
THE LATTER VESSELS. 

FN3  29 U.S.C. SEC. 152(6): 

"THE TERM 'COMMERCE' MEANS TRADE, TRAFFIC, COMMERCE, TRANSPORTATION,
OR COMMUNICATION AMONG THE SEVERAL STATES, OR BETWEEN THE DISTRICT OF
COLUMBIA OR ANY TERRITORY OF THE UNITED STATES AND ANY STATE OR OTHER
TERRITORY, OR BETWEEN ANY FOREIGN COUNTRY AND ANY STATE, TERRITORY, OR
THE DISTRICT OF COLUMBIA, OR WITHIN THE DISTRICT OF COLUMBIA OR ANY
TERRITORY, OR BETWEEN POINTS IN THE SAME STATE BUT THROUGH ANY OTHER
STATE OR ANY TERRITORY OR THE DISTRICT OF COLUMBIA OR ANY FOREIGN
COUNTRY." 

FN4  29 U.S.C. SEC. 152(7): 

"THE TERM 'AFFECTING COMMERCE' MEANS IN COMMERCE, OR BURDENING OR
OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE, OR HAVING LED OR
TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE OR
THE FREE FLOW OF COMMERCE." 

FN5  29 U.S.C. SEC. 159(C)(1): 

"WHENEVER A PETITION SHALL HAVE BEEN FILED  ...  THE BOARD SHALL
INVESTIGATE SUCH PETITION AND IF IT HAS REASONABLE CAUSE TO BELIEVE
THAT A QUESTION OF REPRESENTATION AFFECTING COMMERCE EXISTS SHALL
PROVIDE FOR AN APPROPRIATE HEARING  ...  ." 

REQUIREMENT, EMPOWERING THE BOARD TO "PREVENT ANY PERSON FROM ENGAGING
IN ANY UNFAIR LABOR PRACTICE  ...  AFFECTING COMMERCE." 

FN6  SINDICATO, A HONDURAN UNION, HAD INTERVENED IN THE PROCEEDING. 
SOCIEDAD WAS INVITED TO INTERVENE BUT DECLINED TO DO SO. 

FN7  SEE GENERALLY COMMENT, 69 YALE L. J. 498, 506-511 (1960);
BOCZEK, FLAGS OF CONVENIENCE (1962). 

FN8  E.G., DALZELL TOWING CO., 137 N.L.R.B. NO. 48, 50 L.R.R.M. 1164
(1962). 

FN9  OUR CONCLUSION DOES NOT FORECLOSE SUCH A PROCEDURE IN DIFFERENT
CONTEXTS, SUCH AS THE JONES ACT, 46 U.S.C. SEC. 688, WHERE THE
PERVASIVE REGULATION OF THE INTERNAL ORDER OF A SHIP MAY NOT BE
PRESENT.  AS REGARDS APPLICATION OF THE JONES ACT TO MARITIME TORTS ON
FOREIGN SHIPS, HOWEVER, THE COURT HAS STATED THAT "PERHAPS THE MOST
VENERABLE AND UNIVERSAL RULE OF MARITIME LAW RELEVANT TO OUR PROBLEM IS
THAT WHICH GIVES CARDINAL IMPORTANCE TO THE LAW OF THE FLAG." 
LAURITZEN V. LARSEN, 345 U.S. 571, 584 (1953); SEE ROMERO V.
INTERNATIONAL TERMINAL OPERATING CO., 358 U.S. 354, 381-384 (1959);
BOCZEK, OP. CIT., SUPRA, NOTE 7, AT 178-180. 

FN10  IN 1959 CONGRESS ENACTED SEC. 14(C)(1) OF THE ACT, 29 U.S.C.
(SUPP. II) SEC.  164(C)(1), GRANTING THE BOARD DISCRETIONARY POWER TO
DECLINE JURISDICTION OVER LABOR DISPUTES WITH INSUBSTANTIAL EFFECTS,
WITH A PROVISO THAT: 

"  ...  THE BOARD SHALL NOT DECLINE TO ASSERT JURISDICTION OVER ANY
LABOR DISPUTE OVER WHICH IT WOULD ASSERT JURISDICTION UNDER THE
STANDARDS PREVAILING UPON AUGUST 1, 1959." 

IT IS ARGUED THAT THE BOARD WOULD HAVE EXERTED JURISDICTION OVER
EMPRESA'S VESSELS AND CREWMEN UNDER THOSE "STANDARDS," AS ILLUSTRATED
BY ITS ACTION IN PENINSULAR & OCCIDENTAL STEAMSHIP CO., 120 N.L.R.B.
1097 (1958), ABOUT WHICH CASE THE CONGRESS IS PRESUMED TO HAVE KNOWN. 
ASIDE FROM THE FACT THAT CONGRESS PRESUMABLY WAS AWARE ALSO OF OUR
DECISION IN BENZ, THE ARGUMENT IS UNCONVINCING.  NOTHING IN THE
LANGUAGE OR THE LEGISLATIVE HISTORY OF THE 1959 AMENDMENTS TO THE ACT
CLEARLY INDICATES A CONGRESSIONAL INTENT TO APPLY THE ACT TO FOREIGN
FLAG SHIPS AND THEIR CREWS.  THE "STANDARDS" TO WHICH SEC. 14(C)(1)
REFERS ARE THE MINIMUM DOLLAR AMOUNTS ESTABLISHED BY THE BOARD FOR
JURISDICTIONAL PURPOSES, AND THE PROBLEM TO WHICH SEC. 14(C) IS
ADDRESSED IS THE "NO-MAN'S LAND" CREATED BY GUSS V. UTAH LABOR
RELATIONS BOARD, 353 U.S. 1(1957).  SEE 25 N.L.R.B. ANN. REP. 18-19
(1960); II LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959 (1959), 1153-1154, 1720; 105 CONG. REC. 6548
6549, 18134. 

FN11  STATE DEPARTMENT REGULATIONS PROVIDE THAT A FOREIGN VESSEL
INCLUDES "ANY VESSEL REGARDLESS OF OWNERSHIP, WHICH IS DOCUMENTED UNDER
THE LAWS OF A FOREIGN COUNTRY."  22 CFR SEC. 81.1(F). 

FN12  ARTICLE X OF THE TREATY OF FRIENDSHIP, COMMERCE AND CONSULAR
RIGHTS BETWEEN HONDURAS AND THE UNITED STATES, 45 STAT. 2618 (1927),
PROVIDES THAT MERCHANT VESSELS FLYING THE FLAGS AND HAVING THE PAPERS
OF EITHER COUNTRY "SHALL, BOTH WITHIN THE TERRITORIAL WATERS OF THE
OTHER HIGH CONTRACTING PARTY AND ON THE HIGH SEAS, BE DEEMED TO BE THE
VESSELS OF THE PARTY WHOSE FLAG IS FLOWN." 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS, CONCURRING.  (FN1) 

I HAD SUPPOSED THAT THE ACTIVITIES OF AMERICAN LABOR ORGANIZATIONS
WHETHER RELATED TO DOMESTIC VESSELS OR TO FOREIGN ONES WERE COVERED BY
THE NATIONAL LABOR RELATIONS ACT, AT LEAST ABSENT A TREATY WHICH
EVINCES A DIFFERENT POLICY.  (FN2)  CF. COOK V. UNITED STATES, 288 U.S.
102, 118-120.  BUT MY VIEWS WERE REJECTED IN BENZ V. COMPANIA NAVIERA
HIDALGO, 353 U.S. 138; AND, HAVING LOST THAT CAUSE IN BENZ, I BOW TO
ITS INEXORABLE EXTENSION HERE.  THE PRACTICAL EFFECT OF OUR DECISION IS
TO SHIFT FROM ALL THE TAXPAYERS TO SEAMEN ALONE THE MAIN BURDEN OF
FINANCING AN EXECUTIVE POLICY OF ASSURING THE AVAILABILITY OF AN
ADEQUATE AMERICAN-OWNED MERCHANT FLEET FOR FEDERAL USE DURING NATIONAL
EMERGENCIES.  SEE NOTE, PANLIBHON REGISTRATION OF AMERICAN-OWNED
MERCHANT SHIPS: GOVERNMENT POLICY AND THE PROBLEM OF THE COURTS, 60
COL. L. REV. 711. 

FN1  (THIS OPINION APPLIES ALSO TO NO. 33, INCRES STEAMSHIP CO.,
LTD., V. INTERNATIONAL MARITIME WORKERS, POST, P. 24. 

FN2  IT IS AGREED THAT ARTICLE XXII OF THE TREATY OF FRIENDSHIP,
COMMERCE, AND CONSULAR RIGHTS BETWEEN THE UNITED STATES AND HONDURAS,
45 STAT. 2618 (1927), AND ARTICLE X OF THE CONVENTION WITH LIBERIA OF
OCTOBER 7, 1938, 54 STAT. 1751, 1756, GRANT THOSE NATIONS EXCLUSIVE
JURISDICTION OVER THE MATTERS HERE INVOLVED. 
..END :











INCRES S.S. CO. V. MARITIME WORKERS 372 U.S. 24 


NO. 33.  ARGUED DECEMBER 12, 1962.  - DECIDED FEBRUARY 18, 1963.  - 10
N.Y.2D 218, 176 N.E.2D 719, JUDGMENT VACATED AND CAUSE REMANDED. 


PETITIONER IS A LIBERIAN CORPORATION WHICH IS WHOLLY OWNED BY ITALIAN
NATIONALS.  IT OPERATES TWO LIBERIAN-REGISTERED SHIPS WHICH MAKE
REGULARLY SCHEDULED CRUISES BETWEEN NEW YORK CITY AND VARIOUS CARIBBEAN
PORTS FOR SEVEN MONTHS EACH YEAR AND ANNUAL CRUISES TO ITALY, WHERE
THEY UNDERGO REPAIRS AND THE CREWS TAKE THEIR LEAVES.  THE CREWS ARE
NONRESIDENT ALIENS, MOSTLY ITALIANS, AND THEY ARE RECRUITED AND HIRED
IN ITALY, WHERE THEY SIGN LIBERIAN ARTICLES.  RESPONDENT UNION IS AN
AMERICAN LABOR ORGANIZATION FORMED FOR THE PRIMARY PURPOSE OF
ORGANIZING FOREIGN SEAMEN ON FOREING-FLAG SHIPS, AND IT BEGAN PICKETING
PETITIONER'S SHIPS WHILE ONE WAS DOCKED IN NEW YORK AND THE OTHER
ANCHORED OFFSHORE.  PETITIONER SUED IN A NEW YORK STATE COURT FOR
INJUNCTIVE RELIEF, WHICH WAS GRANTED.  HELD:  THE NATIONAL LABOR
RELATIONS ACT IS INAPPLICABLE TO THE MARITIME OPERATIONS OF FOREIGN
FLAG SHIPS EMPLOYING ALIEN SEAMEN, MCCULLOCH V. SOCIEDAD NACIONAL,
ANTE, P. 10, AND IT DID NOT DEPRIVE THE STATE COURT OF JURISDICTION TO
GRANT SUCH RELIEF.  PP. 24-28. 

INCRES STEAMSHIP CO., LTD., V. INTERNATIONAL MARITIME WORKERS UNION ET
AL. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE BASIC ISSUE IN THIS CASE, THE APPLICATION OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, 61 STAT. 136, 73 STAT. 541, 29 U.S.C. SECS.
151 ET SEQ., IS DECIDED THIS DAY IN MCCULLOCH V. SOCIEDAD NACIONAL,
ANTE, P. 10.  IN VIEW OF FACTUAL DIFFERENCES AND PROCEDURAL
DISSIMILARITY FROM THAT CASE, HOWEVER, WE FIND IT APPROPRIATE TO WRITE
BRIEFLY. 

THE PETITIONER, INCRES STEAMSHIP COMPANY, LTD., IS A LIBERIAN
CORPORATION WHICH IS WHOLLY OWNED BY ITALIAN NATIONALS.  IT OPERATES
TWO LIBERIAN-REGISTERED PASSENGER SHIPS, THE NASSAU AND THE VICTORIA,
WHICH MAKE REGULARLY SCHEDULED CRUISES BETWEEN NEW YORK CITY AND
VARIOUS CARIBBEAN PORTS FOR SEVEN MONTHS EACH YEAR.  IN ADDITION,
ANNUAL CRUISES ARE MADE TO ITALY, WHERE THE VESSELS UNDERGO REPAIRS AND
THE CREWS TAKE THEIR LEAVES.  THE CREWS OF BOTH VESSELS ARE NONRESIDENT
ALIENS, MOST OF WHOM ARE ITALIANS, AND THEY ARE RECRUITED AND HIRED IN
ITALY, WHERE THEY SIGN LIBERIAN ARTICLES. 

INCRES MAINTAINS ITS PRINCIPAL OFFICE IN LONDON, AND IT HAS NO PLACE
OF BUSINESS IN LIBERIA.  IT SHARES AN OFFICE IN NEW YORK CITY WITH
INCRES LINE AGENCY, INC., A NEW YORK CORPORATION WHICH IS CONTROLLED BY
INCRES AND ACTS AS AGENTS FOR ITS CRUISE BUSINESS.  THE PRESIDENT OF
INCRES, AN ITALIAN NATIONAL, WHO IS A PART-TIME NEW YORK RESIDENT, IS
ALSO AN UNPAID OFFICER AND DIRECTOR OF INCRES LINE AGENCY.  HE CONDUCTS
BUSINESS OF INCRES FROM THE INCRES LINE AGENCY OFFICE WHEN HE IS IN NEW
YORK. 

THE RESPONDENT, INTERNATIONAL MARITIME WORKERS UNION, IS AN AMERICAN
LABOR ORGANIZATION FORMED BY TWO OTHER AMERICAN UNIONS FOR THE PRIMARY
PURPOSE OF ORGANIZING FOREIGN SEAMEN ON FOREIGN-FLAG SHIPS.  IN
FEBRUARY OF 1960 IT BEGAN A CAMPAIGN TO ORGANIZE THE SEAMEN ON INCRES'
VESSELS.  ON MAY 13, 1960, AS PART OF THIS CAMPAIGN, IMWU BEGAN
PICKETING AT THE PIER WHERE THE NASSAU WAS DOCKED.  TWO DAYS LATER THE
VICTORIA, WHILE ANCHORED OFFSHORE, WAS PICKETED BY IMWU REPRESENTATIVES
IN A LAUNCH.  THE IMWU REPRESENTATIVES PERSUADED SOME CREW MEMBERS OF
THE NASSAU NOT TO PERFORM THEIR DUTIES, AND LONGSHOREMEN AND TUGBOAT
CREWS WERE TEMPORARILY PERSUADED TO REFRAIN FROM SERVICING BOTH
VESSELS.  AS A RESULT OF THIS ACTIVITY, SEVERAL CRUISES WERE CANCELED. 

ON MAY 16, 1960, INCRES BROUGHT THIS ACTION FOR DAMAGES AND INJUNCTIVE
RELIEF AGAINST IMWU.  ON THE SAME DAY IMWU FILED UNFAIR LABOR PRACTICE
CHARGES AGAINST INCRES, ON WHICH THE NATIONAL LABOR RELATIONS BOARD HAS
CONDUCTED AN INVESTIGATION BUT HAS NOT RENDERED A DECISION.  THE
SUPREME COURT OF NEW YORK COUNTY GRANTED A TEMPORARY AND, AFTER TRIAL,
A PERMANENT INJUNCTION ENJOINING THE UNION FROM PICKETING INCRES'
VESSELS OR FROM ENCOURAGING CREW MEMBERS TO REFRAIN FROM WORKING ON
THOSE VESSELS.  THE APPELLATE DIVISION AFFIRMED.  11 APP. DIV. 2D 177,
202 N.Y.S.2D 692.  THE NEW YORK COURT OF APPEALS, BY A DIVIDED COURT,
REVERSED.  10 N.Y.2D 218, 176 N.E.2D 719.  APPLYING OUR DECISION IN SAN
DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236 (1959), IT HELD
THAT THE STATE COURTS HAD NO JURISDICTION UNTIL THE BOARD REFUSED TO
ACT IN THE DISPUTE, SINCE IT WAS "SURELY ARGUABLE" THAT THE BOARD WOULD
EXERCISE JURISDICTION UNDER THE CONTACTS THEORY AS APPLIED IN WEST
INDIA FRUIT & STEAMSHIP CO., 130 N.L.R.B. 343 (1961), AND OTHER BOARD
DECISIONS.  WE GRANTED CERTIORARI, 368 U.S. 924, AND THE CASE WAS
ARGUED WITH MCCULLOCH V. SOCIEDAD NACIONAL, SUPRA, AND ITS COMPANION
CASES. 

WE HELD TODAY IN SOCIEDAD NACIONAL THAT THE ACT DOES NOT APPLY TO
FOREIGN-REGISTERED SHIPS EMPLOYING ALIEN SEAMEN.  THE HOLDING AND
REASONING IN THAT CASE ARE EQUALLY APPLICABLE TO THE MARITIME
OPERATIONS HERE, LEADING TO THE CONCLUSION THAT THE ACT DOES NOT
APPLY.  IT IS TRUE THAT OUR DECISION IN GARMON, SUPRA, AS APPLIED IN
MARINE ENGINEERS BENEFICIAL ASSN. V. INTERLAKE S.S. CO., 370 U.S. 173
(1962), RESULTS IN PRE-EMPTION OF STATE COURT JURISDICTION IF A DISPUTE
IS ARGUABLY WITHIN THE JURISDICTION OF THE BOARD.  BUT, ALTHOUGH IT WAS
ARGUABLE THAT THE BOARD'S JURISDICTION EXTENDED TO THIS DISPUTE AT THE
TIME OF THE NEW YORK COURT OF APPEALS' DECISION, OUR DECISION IN
SOCIEDAD NACIONAL CLEARLY NEGATES SUCH JURISDICTION NOW.  IN THAT CASE
WE WERE IMMEDIATELY CONCERNED WITH THE BOARD'S JURISDICTION TO DIRECT
AN ELECTION, HOLDING THAT THE ACT HAD NO APPLICATION TO THE OPERATIONS
OF FOREIGN-FLAG SHIPS EMPLOYING ALIEN CREWS.  THEREFORE, NO DIFFERENT
RESULT AS TO BOARD JURISDICTION FOLLOWS FROM THE FACT THAT OUR
IMMEDIATE CONCERN HERE IS THE PICKETING OF A FOREIGN-FLAG SHIP BY AN
AMERICAN UNION.  SEE BENZ V. COMPANIA NAVIERA HIDALGO, 353 U.S. 138
(1957).  THE BOARD'S JURISDICTION TO PREVENT UNFAIR LABOR PRACTICES,
LIKE ITS JURISDICTION TO DIRECT ELECTIONS, IS BASED UPON CIRCUMSTANCES
"AFFECTING COMMERCE," AND WE HAVE CONCLUDED THAT MARITIME OPERATIONS OF
FOREIGN-FLAG SHIPS EMPLOYING ALIEN SEAMEN ARE NOT IN "COMMERCE" WITHIN
THE MEANING OF SEC. 2(6), 29 U.S.C. SEC. 152(6). 

NO DIFFERENT RESULT IS SUGGESTED BY OUR DECISION IN TEAMSTERS UNION
V. NEW YORK, N.H. & H.R. CO., 350 U.S. 155 (1956).  THERE WE HELD THAT
A RAILROAD, SUBJECT TO THE RAILWAY LABOR ACT AND THUS EXEMPT FROM THE
DEFINITION OF "EMPLOYER" IN THE NATIONAL LABOR RELATIONS ACT, WAS NOT
THEREBY PRECLUDED FROM "SEEKING THE AID OF THE BOARD IN CIRCUMSTANCES
UNRELATED TO ITS EMPLOYER-EMPLOYEE RELATIONS."  ID., AT 159. 
THEREFORE, IN A SITUATION WHERE A UNION "WAS IN NO WAY CONCERNED WITH
THE RAILROAD'S LABOR POLICY," ID., AT 160, BUT SOUGHT TO PREVENT MOTOR
CARRIER EMPLOYEES FROM DELIVERING TRUCK-TRAILERS TO THE RAILROAD FOR
"PIGGY-BACK" CARRIAGE, WE HELD THAT STATE COURT JURISDICTION WAS PRE
EMPTED BY THE ACT.  HERE, OF COURSE, THE IMWU'S ACTIVITIES ARE DIRECTLY
RELATED TO INCRES' EMPLOYER-EMPLOYEE RELATIONSHIPS, SINCE THE VERY
PURPOSE OF THOSE ACTIVITIES WAS THE ORGANIZATION OF ALIEN SEAMEN ON
INCRES' VESSELS. 

FOR THE REASONS STATED, THE JUDGMENT OF THE COURT OF APPEALS IS
VACATED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION AND THAT IN SOCIEDAD NACIONAL.  IT IS SO ORDERED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR CONCURRING OPINION OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 22. 
..END :







UNITED STATES V. NATIONAL DAIRY PRODUCTS CORP. 372 U.S. 29 


NO. 18.  ARGUED MARCH 21, 1962.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED DECEMBER 5, 1962.  - DECIDED
FEBRUARY 18, 1963.  - REVERSED AND REMANDED FOR TRIAL. 


AT "UNREASONABLY LOW PRICES FOR THE PURPOSE OF DESTROYING COMPETITION
OR ELIMINATING A COMPETITOR," IS NOT UNCONSTITUTIONALLY VAGUE OR
INDEFINITE AS APPLIED TO SALES MADE BELOW COST WITHOUT ANY LEGITIMATE
COMMERCIAL OBJECTIVE AND WITH SPECIFIC INTENT TO DESTROY COMPETITION. 
PP. 29-37. 

UNITED STATES V. NATIONAL DAIRY PRODUCTS CORP. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE QUESTION WHETHER SEC. 3 OF THE ROBINSON-PATMAN
ACT, 15 U.S.C.  SEC. 13A, MAKING IT A CRIME TO SELL GOODS AT
"UNREASONABLY LOW PRICES FOR THE PURPOSE OF DESTROYING COMPETITION OR
ELIMINATING A COMPETITOR," IS UNCONSTITUTIONALLY VAGUE AND INDEFINITE
AS APPLIED TO SALES MADE BELOW COST WITH SUCH PURPOSE.  NATIONAL DAIRY
AND RAYMOND J. WISE, A VICE-PRESIDENT AND DIRECTOR, UPON BEING CHARGED,
INTER ALIA, WITH VIOLATING SEC. 3 BY MAKING SALES BELOW COST FOR THE
PURPOSE OF DESTROYING COMPETITION, MOVED FOR DISMISSAL OF THE ROBINSON
PATMAN ACT COUNTS OF THE INDICTMENT ON THE GROUND THAT THE STATUTE IS
UNCONSTITUTIONALLY VAGUE AND INDEFINITE.  THE DISTIRCT COURT GRANTED
THE MOTION AND ORDERED DISMISSAL.  ON DIRECT APPEAL UNDER THE CRIMINAL
APPEALS ACT, 18 U.S.C. SEC. 3731, WE NOTED PROBABLE JURISDICTION, 368
U.S. 808, BECAUSE OF THE IMPORTANCE OF THE ISSUE IN THE ADMINISTRATION
OF THE ROBINSON-PATMAN ACT.  WE HAVE CONCLUDED THAT THE ORDER OF
DISMISSAL WAS ERROR AND THEREFORE REMAND THE CASE FOR TRIAL. 

           I. 

NATIONAL DAIRY IS ENGAGED IN THE BUSINESS OF PURCHASING, PROCESSING,
DISTRIBUTING AND SELLING MILK AND OTHER DAIRY PRODUCTS THROUGHOUT THE
UNITED STATES.  THROUGH ITS PROCESSING PLANT IN KANSAS CITY, MISSOURI,
NATIONAL DAIRY HAS FOR THE PAST SEVERAL YEARS BEEN IN COMPETITION WITH
NATIONAL CONCERNS AND VARIOUS LOCAL DAIRIES IN THE GREATER KANSAS CITY
AREA AND THE SURROUNDING AREAS OF KANSAS AND MISSOURI.  IN THE GREATER
KANSAS CITY MARKET NATIONAL DAIRY DISTRIBUTES ITS PRODUCTS DIRECTLY,
BUT CITIES AND TOWNS IN THE SURROUNDING KANSAS AND MISSOURI AREAS
OUTSIDE THIS MARKET ARE SERVED BY INDEPENDENT DISTRIBUTORS WHO PURCHASE
MILK FROM NATIONAL DAIRY AND RESELL ON THEIR OWN ACCOUNT. 

THE INDICTMENT CHARGED VIOLATIONS OF BOTH THE SHERMAN ACT, 15 U.S.C.
SEC. 1, AND THE ROBINSON-PATMAN ACT IN KANSAS CITY AND IN SIX LOCAL
MARKETS IN THE ADJACENT AREA.  (FN1)  THE ROBINSON-PATMAN COUNTS
CHARGED NATIONAL DAIRY AND WISE WITH SELLING MILK IN THOSE MARKETS "AT
UNREASONABLY LOW PRICES FOR THE PURPOSE OF DESTROYING COMPETITION." 
FURTHER SPECIFYING THE ACTS COMPLAINED OF, THE INDICTMENT CHARGED
NATIONAL DAIRY WITH HAVING "UTILIZED THE ADVANTAGES IT POSSESSES BY
REASON OF THE FACT THAT IT OPERATES IN A GREAT MANY DIFFERENT
GEOGRAPHICAL LOCALITIES IN ORDER TO FINANCE AND SUBSIDIZE A PRICE WAR
AGAINST THE SMALL DAIRIES SELLING MILK IN COMPETITION WITH IT  ... BY
INTENTIONALLY SELLING MILK (DIRECTLY OR TO A DISTRIBUTOR) AT PRICES
BELOW NATIONAL'S COST."  IN FIVE OF THE MARKETS NATIONAL DAIRY'S
PRICING PRACTICE WAS ALLEGED TO HAVE RESULTED IN "SEVERE FINANCIAL
LOSSES TO SMALL DAIRIES,"  AND IN TWO OTHERS THE EFFECT WAS CLAIMED TO
HAVE BEEN TO "ELIMINATE COMPETITION" AND "DRIVE SMALL DAIRIES FROM" THE
MARKET. 

NATIONAL DAIRY AND WISE MOVED TO DISMISS ALL OF THE ROBINSON-PATMAN
COUNTS ON THE GROUNDS THAT THE STATUTORY PROVISION, "UNREASONABLY LOW
PRICES," IS SO VAGUE AND INDEFINITE AS TO VIOLATE THE DUE PROCESS
REQUIREMENT OF THE FIFTH AMENDMENT AND AN INDICTMENT BASED ON THIS
PROVISION IS VIOLATIVE OF THE SIXTH AMENDMENT IN THAT IT DOES NOT
ADEQUATELY APPRISE THEM OF THE CHARGES.  THE DISTRICT COURT, AFTER
RENDERING AN ORAL OPINION HOLDING THAT SEC. 3 OF THE ROBINSON-PATMAN
ACT IS UNCONSTITUTIONALLY VAGUE AND INDEFINITE, GRANTED THE MOTION AND
ORDERED DISMISSAL OF THE SEC. 3 COUNTS.  THE CASE CAME HERE ON DIRECT
APPEAL FROM THE ORDER OF DISMISSAL. 

                                  II. 

NATIONAL DAIRY AND WISE URGE THAT SEC. 3 IS TO BE TESTED SOLELY "ON
ITS FACE" RATHER THAN AS APPLIED TO THE CONDUCT CHARGED IN THE
INDICTMENT, I.E., SALES BELOW COST FOR THE PURPOSE OF DESTROYING
COMPETITION.  THE GOVERNMENT, ON THE OTHER HAND, PLACES GREATER
EMPHASIS ON THE LATTER, CONTENDING THAT WHETHER OR NOT THERE IS DOUBT
AS TO THE VALIDITY OF THE STATUTE IN ALL OF ITS POSSIBLE APPLICATIONS,
SEC. 3 IS PLAINLY CONSTITUTIONAL IN ITS APPLICATION TO THE CONDUCT
ALLEGED IN THE INDICTMENT. 

IT IS TRUE THAT A STATUTE ATTACKED AS VAGUE MUST INITIALLY BE
EXAMINED "ON ITS FACE," BUT IT DOES NOT FOLLOW THAT A READILY
DISCERNIBLE DIVIDING LINE CAN ALWAYS BE DRAWN, WITH STATUTES FALLING
NEATLY INTO ONE OF THE TWO CATEGORIES OF "VALID" OR "INVALID" SOLELY ON
THE BASIS OF SUCH AN EXAMINATION. 

WE DO NOT EVALUATE SEC. 3 IN THE ABSTRACT: 

"THE DELICATE POWER OF PRONOUNCING AN ACT OF CONGRESS
UNCONSTITUTIONAL IS NOT TO BE EXERCISED WITH REFERENCE TO HYPOTHETICAL
CASES  ...  .  A LIMITING CONSTRUCTION COULD BE GIVEN TO THE STATUTE BY
THE COURT RESPONSIBLE FOR ITS CONSTRUCTION IF ANY APPLICATION OF
DOUBTFUL CONSTITUTIONALITY WERE ...  PRESENTED.  WE MIGHT ADD THAT
APPLICATION OF THIS RULE FREES THE COURT NOT ONLY FROM UNNECESSARY
PRONOUNCEMENT ON CONSTITUTIONAL ISSUES, BUT ALSO FROM PREMATURE
INTERPRETATIONS OF STATUTES IN AREAS WHERE THEIR CONSTITUTIONAL
APPLICATION MIGHT BE CLOUDY."  UNITED STATES V. RAINES, 362 U.S. 17, 22
(1960). 

THE STRONG PRESUMPTIVE VALIDITY THAT ATTACHES TO AN ACT OF CONGRESS
HAS LED THIS COURT TO HOLD MANY TIMES THAT STATUTES ARE NOT
AUTOMATICALLY INVALIDATED AS VAGUE SIMPLY BECAUSE DIFFICULTY IS FOUND
IN DETERMINING WHETHER CERTAIN MARGINAL OFFENSES FALL WITHIN THEIR
LANGUAGE.  E.G., JORDAN V. DE GEORGE, 341 U.S. 223, 231 (1951), AND
UNITED STATES V. PETRILLO, 332 U.S. 1,7 (1947).  INDEED, WE HAVE
CONSISTENTLY SOUGHT AN INTERPRETATION WHICH SUPPORTS THE
CONSTITUTIONALITY OF LEGISLATION.  E.G., UNITED STATES V. RUMELY, 345
U.S. 41, 47 (1953); CROWELL V. BENSON, 285 U.S. 22, 62 (1932); SEE
SCREWS V. UNITED STATES, 325 U.S. 91 (1945). 

VOID FOR VAGUENESS SIMPLY MEANS THAT CRIMINAL RESPONSIBILITY SHOULD
NOT ATTACH WHERE ONE COULD NOT REASONABLY UNDERSTAND THAT HIS
CONTEMPLATED CONDUCT IS PROSCRIBED.  UNITED STATES V. HARRISS, 347 U.S.
612, 617 (1954).  IN DETERMINING THE SUFFICIENCY OF THE NOTICE A
STATUTE MUST OF NECESSITY BE EXAMINED IN THE LIGHT OF THE CONDUCT WITH
WHICH A DEFENDANT IS CHARGED.  ROBINSON V. UNITED STATES, 324 U.S. 282
(1945).  IN VIEW OF THESE PRINCIPLES WE MUST CONCLUDE THAT IF SEC. 3 OF
THE ROBINSON-PATMAN ACT GAVE NATIONAL DAIRY AND WISE SUFFICIENT WARNING
THAT SELLING BELOW COST FOR THE PURPOSE OF DESTROYING COMPETITION IS
UNLAWFUL, THE STATUTE IS CONSTITUTIONAL AS APPLIED TO THEM.  (FN2)
THIS IS NOT TO SAY THAT A BEAD-SIGHT INDICTMENT CAN CORRECT A
BLUNDERBUSS STATUTE, FOR THE LATTER ITSELF MUST BE SUFFICIENTLY FOCUSED
TO FOREWARN OF BOTH ITS REACH AND COVERAGE.  WE THEREFORE CONSIDER THE
VAGUENESS ATTACK SOLELY IN RELATION TO WHETHER THE STATUTE SUFFICIENTLY
WARNED NATIONAL DAIRY AND WISE THAT SELLING "BELOW COST" WITH PREDATORY
INTENT WAS WITHIN ITS PROHIBITION OF "UNREASONABLY LOW PRICES." 

            III. 

THE HISTORY OF SEC. 3 OF THE ROBINSON-PATMAN ACT INDICATES THAT
SELLING BELOW COST, UNLESS MITIGATED BY SOME ACCEPTABLE BUSINESS
EXIGENCY, WAS INTENDED TO BE PROHIBITED BY THE WORDS "UNREASONABLY LOW
PRICES."  THAT SALES BELOW COST WITHOUT A JUSTIFYING BUSINESS REASON
MAY COME WITHIN THE PROSCRIPTIONS OF THE SHERMAN ACT HAS LONG BEEN
ESTABLISHED.  SEE, E.G., STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1
(1911).  FURTHER, WHEN THE CLAYTON ACT WAS ENACTED IN 1914 TO
STRENGTHEN THE SHERMAN ACT, CONGRESS PASSED SEC. 2 TO COVER PRICE
DISCRIMINATION BY LARGE COMPANIES WHICH COMPETE BY LOWERING PRICES,
"OFTENTIMES BELOW THE COST OF PRODUCTION  ...  WITH THE INTENT TO
DESTROY AND MAKE UNPROFITABLE THE BUSINESS OF THEIR COMPETITORS."  H.R.
REP. NO. 627, 63D CONG., 2D SESS.  8.  THE 1936 ENACTMENT OF THE
ROBINSON-PATMAN ACT WAS FOR THE PURPOSE OF "STRENGTHENING THE CLAYTON
ACT PROVISIONS," FEDERAL TRADE COMM'N V. ANHEUSER-BUSCH, INC., 363 U.S.
536, 544 (1960), AND THE ACT WAS AIMED AT A SPECIFIC WEAPON OF THE
MONOPOLIST - PREDATORY PRICING.  MOREOVER, SEC. 3 WAS DESCRIBED BY
REPRESENTATIVE UTTERBACK, A HOUSE MANAGER OF THE JOINT CONFERENCE
COMMITTEE, AS ATTACHING "CRIMINAL PENALTIES IN ADDITION TO THE CIVIL
LIABILITIES AND REMEDIES ALREADY PROVIDED BY THE CLAYTON ACT."  80
CONG. REC. 9419. 

THIS COURT, IN MOORE V. MEAD'S FINE BREAD CO., 348 U.S. 115 (1954), A
CASE BASED IN PART ON SEC. 3, RECOGNIZED THE APPLICABILITY OF THE
ROBINSON-PATMAN ACT TO CONDUCT QUITE SIMILAR TO THAT WITH WHICH
NATIONAL DAIRY AND WISE ARE CHARGED HERE.  THE COURT SAID, "CONGRESS BY
THE CLAYTON ACT AND ROBINSON-PATMAN ACT BARRED THE USE OF INTERSTATE
BUSINESS TO DESTROY LOCAL BUSINESS" THROUGH PROGRAMS IN WHICH "PROFITS
MADE IN INTERSTATE ACTIVITIES WOULD UNDERWRITE THE LOSSES OF LOCAL
PRICE-CUTTING CAMPAIGNS."  ID., AT 120, 119. 

IN PROSCRIBING SALES AT "UNREASONABLY LOW PRICES FOR THE PURPOSE OF
DESTROYING COMPETITION OR ELIMINATING A COMPETITOR" WE BELIEVE THAT
CONGRESS CONDEMNED SALES MADE BELOW COST FOR SUCH PURPOSE.   AND WE
BELIEVE THAT NATIONAL DAIRY AND WISE COULD REASONABLY UNDERSTAND FROM
THE STATUTORY LANGUAGE THAT THE CONDUCT DESCRIBED IN THE INDICTMENT WAS
PROSCRIBED BY THE ACT.  THEY SAY, HOWEVER, THAT THIS IS BUT THE SAME
HORSE WITH A DIFFERENT BRIDLE BECAUSE THE PHRASE "BELOW COST" IS ITSELF
A VAGUE AND INDEFINITE EXPRESSION IN BUSINESS. 

WHETHER "BELOW COST" REFERS TO "DIRECT" OR "FULLY DISTRIBUTED" COST
OR SOME OTHER LEVEL OF COST COMPUTATION CANNOT BE DECIDED IN THE
ABSTRACT.  THERE IS NOTHING IN THE RECORD ON THIS POINT, AND IT MAY
WELL BE THAT THE ISSUE WILL BE RENDERED ACADEMIC BY A SHOWING THAT
NATIONAL DAIRY SOLD BELOW ANY OF THESE COST LEVELS.  THEREFORE, WE DO
NOT REACH THIS ISSUE HERE.  AS WE SAID IN AUTOMATIC CANTEEN CO. V.
FEDERAL TRADE COMM'N, 346 U.S. 61, 65 (1953):  "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." 

FINALLY, WE THINK THE ADDITIONAL ELEMENT OF PREDATORY INTENT ALLEGED
IN THE INDICTMENT AND REQUIRED BY THE ACT PROVIDES FURTHER DEFINITION
OF THE PROHIBITED CONDUCT.  WE BELIEVE THE NOTICE HERE IS MORE SPECIFIC
THAN THAT WHICH WAS HELD ADEQUATE IN SCREWS V. UNITED STATES, 325 U.S.
91 (1945), IN WHICH A REQUIREMENT OF INTENT SERVED TO "RELIEVE THE
STATUTE OF THE OBJECTION THAT IT PUNISHES WITHOUT WARNING AN OFFENSE OF
WHICH THE ACCUSED WAS UNAWARE."  ID., AT 102; SEE ID., AT 101-107. 
PROSCRIBED BY THE STATUTE IN SCREWS WAS THE INTENTIONAL ACHIEVEMENT OF
A RESULT, I.E., THE WILLFUL DEPRIVATION OF CERTAIN RIGHTS.  THE ACT
HERE, HOWEVER, IN PROHIBITING SALES AT UNREASONABLY LOW PRICES FOR THE
PURPOSE OF DESTROYING COMPETITION - BUT ALSO THE ACT - SELLING AT
UNREASONABLY LOW PRICES - DONE IN FURTHERANCE OF THAT DESIGN OR
PURPOSE.  IT SEEMS CLEAR THAT THE NECESSARY SPECIFICITY OF WARNING IS
AFFORDED WHEN, AS HERE, SEPARATE, THOUGH RELATED, STATUTORY ELEMENTS OF
PROHIBITED ACTIVITY COME TO FOCUS ON ONE COURSE OF CONDUCT. 

UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81 (1921), ON WHICH MUCH
RELIANCE IS PLACED, IS INAPPOSITE HERE.  IN COHEN THE ACT PROSCRIBED
"ANY UNJUST OR UNREASONABLE RATE OR CHARGE."  THE CHARGE IN THE
INDICTMENT WAS IN THE EXACT LANGUAGE OF THE STATUTE, AND, IN SPECIFYING
THE CONDUCT COVERED BY THE CHARGE, THE INDICTMENT DID NOTHING MORE THAN
STATE THE PRICE THE DEFENDANT WAS ALLEGED TO HAVE COLLECTED.  HENCE,
THE COURT HELD THAT A "SPECIFIC OR DEFINITE" ACT WAS NEITHER PROSCRIBED
BY THE ACT NOR ALLEGED IN THE INDICTMENT.  ID., AT 89.  MOREOVER, THE
STANDARD HELD TOO VAGUE IN COHEN WAS WITHOUT A MEANINGFUL REFERENT IN
BUSINESS PRACTICE OR USAGE.  "THERE WAS NO ACCEPTED AND FAIRLY STABLE
COMMERCIAL STANDARD WHICH COULD BE REGARDED AS IMPLIEDLY TAKEN UP AND
ADOPTED BY THE STATUTE  ...  ."  SMALL CO. V. AMERICAN SUGAR RFG.  CO.,
267 U.S. 233, 240-241 (1925).   IN VIEW OF THE BUSINESS PRACTICES
AGAINST WHICH SEC. 3 WAS UNMISTAKABLY DIRECTED AND THE SPECIFICITY OF
THE VIOLATIONS CHARGED IN THE INDICTMENT HERE, BOTH ABSENT IN COHEN,
THE PROFFERED ANALYOGY TO THAT CASE MUST BE REJECTED. 

IN THIS CONNECTION WE ALSO NOTE THAT THE APPROACH TO "VAGUENESS"
GOVERNING A CASE LIKE THIS IS DIFFERENT FROM THAT FOLLOWED IN CASES
ARISING UNDER THE FIRST AMENDMENT.  THERE WE ARE CONCERNED WITH THE
VAGUENESS OF THE STATUTE "ON ITS FACE" BECAUSE SUCH VAGUENESS MAY IN
ITSELF DETER CONSTITUTIONALLY PROTECTED AND SOCIALLY DESIRABLE
CONDUCT.  SEE THORNHILL V. ALABAMA, 310 U.S. 88, 98 (1940); NAACP V.
BUTTON, 371 U.S. 415.  NO SUCH FACTOR IS PRESENT HERE WHERE THE STATUTE
IS DIRECTED ONLY AT CONDUCT DESIGNED TO DESTROY COMPETITION, ACTIVITY
WHICH IS NEITHER CONSTITUTIONALLY PROTECTED NOR SOCIALLY DESIRABLE.  WE
ARE THUS PERMITTED TO CONSIDER THE WARNING PROVIDED BY SEC. 3 NOT ONLY
IN TERMS OF THE STATUTE "ON ITS FACE" BUT ALSO IN THE LIGHT OF THE
CONDUCT TO WHICH IT IS APPLIED.  THE RELIANCE OF NATIONAL DAIRY AND
WISE ON FIRST AMENDMENT CASES IS THEREFORE MISPLACED. 

                            IV.    THIS OPINION IS NOT TO BE
CONSTRUED, HOWEVER, AS HOLDING THAT EVERY SALE BELOW COST CONSTITUTES A
VIOLATION OF SEC. 3.  SUCH SALES ARE NOT CONDEMNED WHEN MADE IN
FURTHERANCE OF A LEGITIMATE COMMERCIAL OBJECTIVE, SUCH AS THE
LIQUIDATION OF EXCESS, OBSOLETE OR PERISHABLE MERCHANDISE, OR THE NEED
TO MEET A LAWFUL, EQUALLY LOW PRICE OF A COMPETITOR.  80 CONG. REC.
6332, 6334; SEE BEN HUR COAL CO. V. WELLS, 242 F.2D 481 (C.A. 10TH CIR.
1957).  SALES BELOW COST IN THESE INSTANCES WOULD NEITHER BE
"UNREASONABLY LOW" NOR MADE WITH PREDATORY INTENT.  BUT SALES MADE
BELOW COST WITHOUT LEGITIMATE COMMERCIAL OBJECTIVE AND WITH SPECIFIC
INTENT TO DESTROY COMPETITION WOULD CLEARLY FALL WITHIN THE
PROHIBITIONS OF SEC. 3.    SINCE THE INDICTMENT CHARGES THE LATTER
CONDUCT AND, AS NOTED, SUPRA, N. 2, WE ARE BOUND BY THE WELL-PLEADED
ALLEGATIONS OF THE INDICTMENT, WE MUST CONCLUDE THAT NATIONAL DAIRY AND
WISE WERE ADEQUATELY FOREWARNED OF THE ILLEGAL CONDUCT CHARGED AGAINST
THEM AND REMAND THE CASE FOR TRIAL.  OUR HOLDING, OF COURSE, DOES NOT
FORECLOSE PROOF ON THE MERITS AS TO THE REASONABLENESS OF THE ALLEGED
PRICING CONDUCT OR, FOR THAT MATTER, THE ABSENCE OF THE PREDATORY
INTENT NECESSARY TO CONVICTION.  REVERSED AND REMANDED. 

FN1  SEVEN COUNTS OF THE 15-COUNT INDICTMENT CHARGED VIOLATIONS OF
SEC. 3 OF THE ROBINSON-PATMAN ACT.  THE SHERMAN ACT AND ROBINSON-PATMAN
ACT COUNTS RELATE TO THE SAME COURSE OF CONDUCT. 

ONE ROBINSON-PATMAN COUNT, NUMBER 13, CHARGES RAYMOND J. WISE, A VICE
PRESIDENT AND DIRECTOR OF NATIONAL, WITH AUTHORIZING NATIONAL'S PRICING
PRACTICE AND ORDERING ITS EFFECTUATION IN THE KANSAS CITY MARKET. 
UNITED STATES V. WISE, 370 U.S. 405 (1962), INVOLVES TWO SHERMAN ACT
COUNTS OF THE INDICTMENT WHICH NAMES WISE AS A DEFENDANT. 

FN2  IT SHOULD BE NOTED THAT, IN REVIEWING A CASE IN WHICH A MOTION
TO DISMISS WAS GRANTED, WE ARE REQUIRED TO ACCEPT WELL-PLEADED
ALLEGATIONS OF THE INDICTMENT AS THE HYPOTHESIS FOR DECISION.  BOYCE
MOTOR LINES V. UNITED STATES, 342 U.S. 337, 343 (1952). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE STEWART AND MR. JUSTICE
GOLDBERG JOIN, DISSENTING. 

THE STATUTE HERE INVOLVED MAKES IT A CRIME TO SELL "GOODS AT
UNREASONABLY LOW PRICES FOR THE PURPOSE OF DESTROYING COMPETITION OR
ELIMINATING A COMPETITOR."  15 U.S.C. SEC.  13A.  IN UNITED STATES V.
COHEN GROCERY CO., 255 U.S. 81 (1921), THIS COURT HELD UNCONSTITUTIONAL
AND VOID FOR VAGUENESS A STATUTE WHICH MADE IT A CRIME "FOR ANY PERSON
WILLFULLY  ...  TO MAKE ANY UNJUST OR UNREASONABLE RATE OR CHARGE" IN
DEALING IN OR WITH ANY NECESSARIES.  THE RULE ESTABLISHED BY THAT CASE
HAS BEEN OFTEN FOLLOWED, (FN1) IS IN MY JUDGMENT SOUND, AND SHOULD
CONTROL THIS CASE.  ACCORDINGLY, I WOULD AFFIRM THE DISTRICT COURT'S
JUDGMENT HOLDING THE STATUTE INVALID.  THE COURT HERE ATTEMPTS BY
INTERPRETATION TO SUBSTITUTE UNAMBIGUOUS STANDARDS FOR THE VAGUE
STANDARD OF "UNREASONABLY LOW PRICES" USED BY CONGRESS IN THE STATUTE. 
IT SEEMS TO ME THAT IF THIS CRIMINAL STATUTE IS TO BE SO DRASTICALLY
RECONSTRUCTED IT SHOULD BE DONE BY CONGRESS, NOT BY US.  MOREOVER, I
AGREE WITH THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE
ANTITRUST LAWS, WHICH CONCLUDED: 

"DOUBTS BESETTING SECTION 3'S CONSTITUTIONALITY SEEM WELL FOUNDED; NO
GLOSS IMPARTED BY HISTORY OR ADJUDICATION HAS SETTLED THE VAGUE
CONTOURS OF THIS HARSH CRIMINAL LAW."  (FN2) 

FN1  E.G., CLINE V. FRINK DAIRY CO., 274 U.S. 445 (1927); LANZETTA V.
NEW JERSEY, 306 U.S. 451 (1939); CF. UNITED STATES V. CARDIFF, 344 U.S.
174 (1952). 

FN2  ATTY. GEN. NAT. COMM. ANTITRUST REP. 201 (1955)(RECOMMENDING
REPEAL OF SEC. 3). 
..END :















UNITED STATES V. GILMORE 372 U.S. 39 


NO. 21.  ARGUED MARCH 27-28, 1962.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED DECEMBER 5-6, 1962.  - DECIDED
FEBRUARY 18, 1963.  - CT. CL. - 290 F.2D 942, REVERSED AND CASE
REMANDED. 


RESPONDENT SUED FOR REFUND OF PART OF THE INCOME TAXES PAID BY HIM FOR
THE YEARS 1953 AND 1954, ON THE GROUND THAT LEGAL EXPENSES INCURRED BY
HIM IN DEFENDING DIVORCE LITIGATION WITH HIS FORMER WIFE WERE
DEDUCTIBLE UNDER SEC. 23(A)(2) OF THE INTERNAL REVENUE CODE OF 1939, AS
AMENDED, WHICH ALLOWS AS DEDUCTIONS FROM GROSS INCOME "ORDINARY AND
NECESSARY EXPENSES  ...  INCURRED  ...  FOR THE CONSERVATION  ...  OF
PROPERTY HELD FOR THE PRODUCTION OF INCOME."  HIS GROSS INCOME WAS
DERIVED ALMOST ENTIRELY FROM HIS SALARY AS PRESIDENT OF THREE
CORPORATIONS WHICH WERE FRANCHISED AUTOMOBILE DEALERS AND FROM
DIVIDENDS FROM HIS CONTROLLING STOCK IN SUCH CORPORATIONS.  HIS WIFE
HAD SUED FOR DIVORCE, ALIMONY AND AN ALLEGED COMMUNITY PROPERTY
INTEREST IN SUCH STOCK, AND HE ALLEGED THAT, HAD HE NOT SUCCEEDED IN
DEFEATING THESE CLAIMS, HE MIGHT HAVE LOST HIS STOCK, HIS CORPORATE
POSITIONS AND THE DEALER FRANCHISES, FROM WHICH NEARLY ALL OF HIS
INCOME WAS DERIVED.  HELD:  NONE OF RESPONDENT'S EXPENDITURES IN
RESISTING THESE CLAIMS IS DEDUCTIBLE UNDER SEC. 23(A)(2).  PP. 40-52. 

(A)  THE ORIGIN AND CHARACTER OF THE CLAIM WITH RESPECT TO WHICH AN
EXPENSE WAS INCURRED, RATHER THAN ITS POTENTIAL CONSEQUENCES UPON THE
FORTUNES OF THE TAXPAYER, IS THE CONTROLLING BASIC TEST OF WHETHER THE
EXPENSE WAS "BUSINESS" OR "PERSONAL" AND HENCE WHETHER OR NOT IT IS
DEDUCTIBLE UNDER SEC. 23(A)(2).  PP. 44-51. 

(B)  THE WIFE'S CLAIMS STEMMED ENTIRELY FROM THE MARITAL
RELATIONSHIP, AND NOT, UNDER ANY TENABLE VIEW OF THINGS, FROM INCOME
PRODUCING ACTIVITY.  THEREFORE, NONE OF RESPONDENT'S EXPENDITURES IN
RESISTING THESE CLAIMS CAN BE DEEMED "BUSINESS" EXPENSES DEDUCTIBLE
UNDER SEC. 23(A)(2).  PP. 51-52. 

UNITED STATES V. GILMORE ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN 1955 THE CALIFORNIA SUPREME COURT CONFIRMED THE AWARD TO THE
RESPONDENT TAXPAYER OF A DECREE OF ABSOLUTE DIVORCE, WITHOUT ALIMONY,
AGAINST HIS WIFE DIXIE GILMORE.  (FN1)  45 CAL. 2D 142, 287 P.2D 769. 
THE CASE BEFORE US INVOLVES THE DEDUCTIBILITY FOR FEDERAL INCOME TAX
PURPOSES OF THAT PART OF THE HUSBAND'S LEGAL EXPENSE INCURRED IN SUCH
PROCEEDINGS AS IS ATTRIBUTABLE TO HIS SUCCESSFUL RESISTANCE OF HIS
WIFE'S CLAIMS TO CERTAIN OF HIS ASSETS ASSERTED BY HER TO BE COMMUNITY
PROPERTY UNDER CALIFORNIA LAW.  (FN2)  THE CLAIM TO SUCH DEDUCTION,
WHICH HAS BEEN UPHELD BY THE COURT OF CLAIMS, - CT. CL. - , 290 F.2D
942, IS FOUNDED ON SEC. 23(A)(2) OF THE INTERNAL REVENUE CODE OF 1939,
26 U.S.C. (1952 ED.)  SEC.  23(A)(2), WHICH ALLOWS AS DEDUCTIONS FROM
GROSS INCOME: 

"  ...  ORDINARY AND NECESSARY EXPENSES  ...  INCURRED DURING THE
TAXABLE YEAR (FN3)  ...  FOR THE  ...  CONSERVATION  ...  OF PROPERTY
HELD FOR THE PRODUCTION OF INCOME." 

BECAUSE OF A CONFLICT OF VIEWS AMONG THE COURT OF CLAIMS, THE COURT
OF APPEALS, AND THE TAX COURT REGARDING THE PROPER APPLICATION OF THIS
PROVISION, (FN4) AND THE CONTINUING IMPORTANCE OF THE QUESTION IN THE
ADMINISTRATION OF THE FEDERAL INCOME TAX LAWS, WE GRANTED CERTIORARI ON
THE GOVERNMENT'S PETITION.  368 U.S. 816.  THE CASE WAS FIRST ARGUED AT
THE LAST TERM AND SET FOR REARGUMENT AT THIS ONE.  369 U.S. 835. 

AT THE TIME OF THE DIVORCE PROCEEDINGS, INSTITUTED BY THE WIFE BUT IN
WHICH THE HUSBAND ALSO CROSS-CLAIMED FOR DIVORCE, RESPONDENT'S PROPERTY
CONSISTED PRIMARILY OF CONTROLLING STOCK INTERESTS IN THREE
CORPORATIONS, EACH OF WHICH WAS A FRANCHISED GENERAL MOTORS AUTOMOBILE
DEALER.  (FN5)  AS PRESIDENT AND PRINCIPAL MANAGING OFFICER OF THE
THREE CORPORATIONS, HE RECEIVED SALARIES FROM THEM AGGREGATING ABOUT
$66,800 ANNUALLY, AND IN RECENT YEARS HIS TOTAL ANNUAL DIVIDENDS HAD
AVERAGED ABOUT $83,000.  HIS TOTAL ANNUAL INCOME DERIVED FROM THE
CORPORATIONS WAS THUS APPROXIMATELY $150,000.  HIS INCOME FROM OTHER
SOURCES WAS NEGLIGIBLE.  (FN6) 

AS FOUND BY THE COURT OF CLAIMS, THE HUSBAND'S OVERRIDING CONCERN IN
THE DIVORCE LITIGATION WAS TO PROTECT THESE ASSETS AGAINST THE CLAIMS
OF HIS WIFE.  THOSE CLAIMS HAD TWO ASPECTS: FIRST, THAT THE EARNINGS
ACCUMULATED AND RETAINED BY THESE THREE CORPORATIONS DURING THE
GILMORES' MARRIAGE (REPRESENTING AN AGGREGATE INCREASE IN CORPORATE NET
WORTH OF SOME $600,000) WERE THE PRODUCT OF RESPONDENT'S PERSONAL
SERVICES, AND NOT THE RESULT OF ACCRETION IN CAPITAL VALUES, THUS
RENDERING RESPONDENT'S STOCKHOLDINGS IN THE ENTERPRISES PRO TANTO
COMMUNITY PROPERTY UNDER CALIFORNIA LAW; (FN7) SECOND, THAT TO THE
EXTENT THAT SUCH STOCKHOLDINGS WERE COMMUNITY PROPERTY, THE WIFE,
ALLEGEDLY THE INNOCENT PARTY IN THE DIVORCE PROCEEDING, WAS ENTITLED
UNDER CALIFORNIA LAW TO MORE THAN A ONE-HALF INTEREST IN SUCH
PROPERTY.  (FN8) 

THE RESPONDENT WISHED TO DEFEAT THOSE CLAIMS FOR TWO IMPORTANT
REASONS.  FIRST, THE LOSS OF HIS CONTROLLING STOCK INTERESTS,
PARTICULARLY IN THE EVENT OF THEIR TRANSFER IN SUBSTANTIAL PART TO HIS
HOSTILE WIFE, MIGHT WELL COST HIM THE LOSS OF HIS CORPORATE POSITIONS,
HIS PRINCIPAL MEANS OF LIVELIHOOD.  SECOND, THERE WAS ALSO DANGER THAT
IF HE WERE FOUND GUILTY OF HIS WIFE'S SENSATIONAL AND REPUTATION
DAMAGING CHARGES OF MARITAL INFIDELITY, GENERAL MOTORS CORPORATION
MIGHT FIND IT EXPEDIENT TO EXERCISE ITS RIGHT TO CANCEL THESE DEALER
FRANCHISES. 

THE END RESULT OF THIS BITTERLY FOUGHT DIVORCE CASE WAS A COMPLETE
VICTORY FOR THE HUSBAND.  HE, NOT THE WIFE, WAS GRANTED A DIVORCE ON
HIS CROSS-CLAIM; THE WIFE'S COMMUNITY PROPERTY CLAIMS WERE DENIED IN
THEIR ENTIRETY; AND SHE WAS HELD ENTITLED TO NO ALIMONY.  45 CAL. 2D
142, 287 P.2D 769. 

RESPONDENT'S LEGAL EXPENSES IN CONNECTION WITH THIS LITIGATION
AMOUNTED TO $32,537.15 IN 1953 AND $8,074.21 IN 1954 - A TOTAL OF
$40,611.36 FOR THE TWO TAXABLE YEARS IN QUESTION.  THE COMMISSIONER OF
INTERNAL REVENUE FOUND ALL OF THESE EXPENDITURES "PERSONAL" OR "FAMILY"
EXPENSES AND AS SUCH NONE OF THEM DEDUCTIBLE.  26 U.S.C. (1952 ED.) 
SEC.  24(A)(1).  (FN9)  IN THE ENSUING REFUND SUIT, HOWEVER, THE COURT
OF CLAIMS HELD THAT 80% OF SUCH EXPENSE (SOME $32,500) WAS ATTRIBUTABLE
TO RESPONDENT'S DEFENSE AGAINST HIS WIFE'S COMMUNITY PROPERTY CLAIMS
RESPECTING HIS STOCKHOLDINGS AND HENCE DEDUCTIBLE UNDER SEC. 23(A)(2)
OF THE 1939 CODE AS AN EXPENSE "INCURRED  ...  FOR THE  ...
CONSERVATION  ...  OF PROPERTY HELD FOR THE PRODUCTION OF INCOME."  IN
SO HOLDING THE COURT OF CLAIMS STATED: 

"OF COURSE IT IS TRUE THAT IN EVERY DIVORCE CASE A CERTAIN AMOUNT OF
THE LEGAL EXPENSES ARE INCURRED FOR THE PURPOSE OF OBTAINING THE
DIVORCE AND A CERTAIN AMOUNT ARE INCURRED IN AN EFFORT TO CONSERVE THE
ESTATE AND ARE NOT NECESSARILY DEDUCTIBLE UNDER SECTION 23(A)(2), BUT
WHEN THE FACTS OF A PARTICULAR CASE CLEARLY INDICATE (AS HERE) THAT THE
PROPERTY, AROUND WHICH THE CONTROVERSY EVOLVES, IS HELD FOR THE
PRODUCTION OF INCOME AND WITHOUT THIS PROPERTY THE LITIGANT MIGHT BE
DENIED NOT ONLY THE PROPERTY ITSELF BUT THE MEANS OF EARNING A
LIVELIHOOD, THEN IT MUST COME UNDER THE PROVISIONS OF SECTION 23(A)(2)
...  .  THE ONLY QUESTION THEN IS THE ALLOCATION OF THE EXPENSES TO
THIS PHASE OF THE PROCEEDINGS."  (FN10)  - CT. CL., AT - , 290 F.2D, AT
947. 

THE GOVERNMENT DOES NOT QUESTION THE AMOUNT OR FORMULA FOR THE
EXPENSE ALLOCATION MADE BY THE COURT OF CLAIMS.  ITS SOLE CONTENTION
HERE IS THAT THE COURT BELOW MISCONCEIVED THE TEST GOVERNING SEC.
23(A)(2) DEDUCTIONS, IN THAT THE DEDUCTIBILITY OF THESE EXPENSES TURNS,
SO IT IS ARGUED, NOT UPON THE CONSEQUENCES TO RESPONDENT OF A FAILURE
TO DEFEAT HIS WIFE'S COMMUNITY PROPERTY CLAIMS BUT UPON THE ORIGIN AND
NATURE OF THE CLAIMS THEMSELVES.  SO VIEWING DIXIE GILMORE'S CLAIMS,
WHETHER RELATING TO THE EXISTENCE OR DIVISION OF COMMUNITY PROPERTY, IT
IS CONTENDED THAT THE EXPENSE OF RESISTING THEM MUST BE DEEMED
NONDEDUCTIBLE "PERSONAL" OR "FAMILY" EXPENSE UNDER SEC. 24(A)(1), NOT
DEDUCTIBLE EXPENSE UNDER SEC. 23(A)(2).  FOR REASONS GIVEN HEREAFTER WE
THINK THE GOVERNMENT'S POSITION IS SOUND AND THAT IT MUST BE
SUSTAINED. 

                                   I. 

FOR INCOME TAX PURPOSES CONGRESS HAS SEEN FIT TO REGARD AN INDIVIDUAL
AS HAVING TWO PERSONALITIES:  "ONE IS (AS) A SEEKER AFTER PROFIT WHO
CAN DEDUCT THE EXPENSES INCURRED IN THAT SEARCH; THE OTHER IS (AS) A
CREATURE SATISFYING HIS NEEDS AS A HUMAN AND THOSE OF HIS FAMILY BUT
WHO CANNOT DEDUCT SUCH CONSUMPTION AND RELATED EXPENDITURES."  (FN11)
THE GOVERNMENT REGARDS SEC. 23(A)(2) AS EMBODYING A CATEGORY OF THE
EXPENSES EMBRACED IN THE FIRST OF THESE ROLES. 

INITIALLY, IT MAY BE OBSERVED THAT THE WORDING OF SEC. 23(A)(2) MORE
READILY FITS THE GOVERNMENT'S VIEW OF THE PROVISION THAN THAT OF THE
COURT OF CLAIMS.  FOR IN CONTEXT "CONSERVATION OF PROPERTY" SEEMS TO
REFER TO OPERATIONS PERFORMED WITH RESPECT TO THE PROPERTY ITSELF, SUCH
AS SAFEGUARDING OR UPKEEP, RATHER THAN TO A TAXPAYER'S RETENTION OF
OWNERSHIP IN IT.  (FN2)  BUT MORE ILLUMINATING THAN THE MERE LANGAUGE
OF SEC. 23(A)(2) IS THE HISTORY OF THE PROVISION. 

PRIOR TO 1942 SEC. 23 ALLOWED DEDUCTIONS ONLY FOR EXPENSES INCURRED
"IN CARRYING ON ANY TRADE OR BUSINESS," THE DEDUCTION PRESENTLY
AUTHORIZED BY SEC. 23(A)(1).  IN HIGGINS V. COMMISSIONER, 312 U.S. 212,
THIS COURT GAVE THAT PROVISION A NARROW CONSTRUCTION, HOLDING THAT THE
ACTIVITIES OF AN INDIVIDUAL IN SUPERVISING HIS OWN SECURITIES
INVESTMENTS DID NOT CONSTITUTE THE "CARRYING ON OF A TRADE OR
BUSINESS," AND HENCE THAT EXPENSES INCURRED IN CONNECTION WITH SUCH
ACTIVITIES WERE NOT TAX DEDUCTIBLE.  SIMILAR RESULTS WERE REACHED IN
UNITED STATES V. PYNE, 313 U.S. 127, AND CITY BANK CO. V. HELVERING,
313 U.S. 121.  THE REVENUE ACT OF 1942 (56 STAT. 798, SEC. 121), BY
ADDING WHAT IS NOW SEC. 23(A)(2), SOUGHT TO REMEDY THE INEQUITY
INHERENT IN THE DISALLOWANCE OF EXPENSE DEDUCTIONS IN RESPECT OF SUCH
PROFIT-SEEKING ACTIVITIES, THE INCOME FROM WHICH WAS NONETHELESS
TAXABLE.  (FN13) 

AS NOTED IN MCDONALD V. COMMISSIONER, 323 U.S. 57, 62, THE PURPOSE OF
THE 1942 AMENDMENT WAS MERELY TO ENLARGE "THE CATEGORY OF INCOMES WITH
REFERENCE TO WHICH EXPENSES WERE DEDUCTIBLE."  AND COMMITTEE REPORTS
MAKE CLEAR THAT DEDUCTIONS UNDER THE NEW SECTION WERE SUBJECT TO THE
SAME LIMITATIONS AND RESTRICTIONS THAT ARE APPLICABLE TO THOSE
ALLOWABLE UNDER SEC. 23(A)(1).  (FN14) FURTHER, THIS COURT HAS SAID
THAT SEC. 23(A)(2) "IS COMPARABLE AND IN PARI MATERIA WITH SEC.
23(A)(1)," PROVIDING FOR A CLASS OF DEDUCTIONS "COEXTENSIVE WITH THE
BUSINESS DEDUCTIONS ALLOWED BY SEC. 23(A)(1), EXCEPT FOR" THE
REQUIREMENT THAT THE INCOME-PRODUCING ACTIVITY QUALIFY AS A TRADE OR
BUSINESS.  TRUST OF BINGHAM V. COMMISSIONER, 325 U.S. 365, 373, 374. 

A BASIC RESTRICTION UPON THE AVAILABILITY OF A SEC. 23(A)(1)
DEDUCTION IS THAT THE EXPENSE ITEM INVOLVED MUST BE ONE THAT HAS A
BUSINESS ORIGIN.  THAT RESTRICTION NOT ONLY INHERES IN THE LANGUAGE OF
SEC. 23(A)(1) ITSELF, CONFINING SUCH DEDUCTIONS TO "EXPENSES  ...
INCURRED  ...  IN CARRYING ON ANY TRADE OR BUSINESS," BUT ALSO FOLLOWS
FROM SEC. 24(A)(1), EXPRESSLY RENDERING NONDEDUCTIBLE "IN ANY CASE  ...
PERSONAL, LIVING, OR FAMILY EXPENSES."  SEE NOTE 9, SUPRA.  IN LIGHT
OF WHAT HAS ALREADY BEEN SAID WITH RESPECT TO THE ADVENT AND THRUST OF
SEC. 23(A)(2), IT IS CLEAR THAT THE "PERSONAL  ...  OR FAMILY EXPENSES"
RESTRICTION OF SEC. 24(A)(1) MUST IMPOSE THE SAME LIMITATION UPON THE
REACH OF SEC.  23(A)(2) - IN OTHER WORDS THAT THE ONLY KIND OF EXPENSES
DEDUCTIBLE UNDER SEC. 23(A)(2) ARE THOSE THAT RELATE TO A "BUSINESS,"
THAT IS, PROFIT-SEEKING, PURPOSE.  THE PIVOTAL ISSUE IN THIS CASE THEN
BECOMES:  WAS THIS PART OF RESPONDENT'S LITIGATION COSTS A "BUSINESS"
RATHER THAN A "PERSONAL" OR "FAMILY" EXPENSE? 

THE ANSWER TO THIS QUESTION HAS ALREADY BEEN INDICATED IN PRIOR
CASES.  IN LYKES V. UNITED STATES, 343 U.S. 118, THE COURT REJECTED THE
CONTENTION THAT LEGAL EXPENSES INCURRED IN CONTESTING THE ASSESSMENT OF
A GIFT TAX LIABILITY WERE DEDUCTIBLE.  THE TAXPAYER ARGUED THAT IF HE
HAD BEEN REQUIRED TO PAY THE ORIGINAL DEFICIENCY HE WOULD HAVE BEEN
FORCED TO LIQUIDATE HIS STOCKHOLDINGS, WHICH WERE HIS MAIN SOURCE OF
INCOME, AND THAT HIS LEGAL EXPENSES WERE THEREFORE INCURRED IN THE
"CONSERVATION" OF INCOME-PRODUCING PROPERTY AND HENCE DEDUCTIBLE UNDER
SEC. 23(A)(2).  THE COURT FIRST NOTED THAT THE "DEDUCTIBILITY (OF THE
EXPENSES) TURNS WHOLLY UPON THE NATURE OF THE ACTIVITIES TO WHICH THEY
RELATE" (343 U.S., AT 123), AND THEN STATED: 

"LEGAL EXPENSES DO NOT BECOME DEDUCTIBLE MERELY BECAUSE THEY ARE PAID
FOR SERVICES WHICH RELIEVE A TAXPAYER OF LIABILITY.  THAT ARGUMENT
WOULD CARRY US TOO FAR.  IT WOULD MEAN THAT THE EXPENSE OF DEFENDING
ALMOST ANY CLAIM WOULD BE DEDUCTIBLE BY A TAXPAYER ON THE GROUND THAT
SUCH DEFENSE WAS MADE TO HELP HIM KEEP CLEAR OF LIENS WHATEVER INCOME
PRODUCING PROPERTY HE MIGHT HAVE.  FOR EXAMPLE, IT SUGGESTS THAT THE
EXPENSE OF DEFENDING AN ACTION BASED UPON PERSONAL INJURIES CAUSED BY A
TAXPAYER'S NEGLIGENCE WHILE DRIVING AN AUTOMOBILE FOR PLEASURE SHOULD
BE DEDUCTIBLE.  SECTION 23(A)(2) NEVER HAS BEEN SO INTERPRETED BY US
...  . 

"WHILE THE THREATENED DEFICIENCY ASSESSMENT  ...  ADDED URGENCY TO
PETITIONER'S RESISTANCE OF IT, NEITHER ITS SIZE NOR ITS URGENCY
DETERMINED ITS CHARACTER.  IT RELATED TO THE TAX PAYABLE ON
PETITIONER'S GIFTS  ...  .  THE EXPENSE OF CONTESTING THE AMOUNT OF THE
DEFICIENCY WAS THUS AT ALL TIMES ATTRIBUTABLE TO THE GIFTS, AS SUCH,
AND ACCORDINGLY WAS NOT DEDUCTIBLE. 

"IF, AS SUGGESTED, THE RELATIVE SIZE OF EACH CLAIM, IN PROPORTION TO
THE INCOME-PRODUCING RESOURCES OF A DEFENDANT, WERE TO BE A TOUCHSTONE
OF THE DEDUCTIBILITY OF THE EXPENSE OF RESISTING THE CLAIM, SUBSTANTIAL
UNCERTAINTY AND INEQUITY WOULD INHERE IN THE RULE  ...  .  IT IS NOT A
GROUND FOR  ...  (DEDUCTION) THAT THE CLAIM, IF JUSTIFIED, WILL CONSUME
INCOME-PRODUCING PROPERTY OF THE DEFENDANT."  343 U.S., AT 125-126. 

IN KORNHAUSER V. UNITED STATES, 276 U.S. 145, THIS COURT CONSIDERED
THE DEDUCTIBILITY OF LEGAL EXPENSES INCURRED BY A TAXPAYER IN DEFENDING
AGAINST A CLAIM BY A FORMER BUSINESS PARTNER THAT FEES PAID TO THE
TAXPAYER WERE FOR SERVICES RENDERED DURING THE EXISTENCE OF THE
PARTNERSHIP.  IN HOLDING THAT THESE EXPENSES WERE DEDUCTIBLE EVEN
THOUGH THE TAXPAYER WAS NO LONGER A PARTNER AT THE TIME OF SUIT, THE
COURT FORMULATED THE RULE THAT "WHERE A SUIT OR ACTION AGAINST A
TAXPAYER IS DIRECTLY CONNECTED WITH, OR  ...  PROXIMATELY RESULTED
FROM, HIS BUSINESS EXPENSE, THE EXPENSE INCURRED IS A BUSINESS EXPENSE
...  ."  276 U.S., AT 153.  SIMILARLY, IN A CASE INVOLVING AN EXPENSE
INCURRED IN SATISFYING AN OBLIGATION (THOUGH NOT A LITIGATION EXPENSE),
IT WAS SAID THAT "IT IS THE ORIGIN OF THE LIABILITY OUT OF WHICH THE
EXPENSE ACCRUES" OR "THE KIND OF TRANSACTION OUT OF WHICH THE
OBLIGATION AROSE  ... WHICH (IS) CRUCIAL AND CONTROLLING."  DEPUTY V.
DUPONT, 308 U.S. 488, 494, 496.    THE PRINCIPLE WE DERIVE FROM THESE
CASES IS THAT THE CHARACTERIZATION, AS "BUSINESS" OR "PERSONAL," OF THE
LITIGATION COSTS OF RESISTING A CLAIM DEPENDS ON WHETHER OR NOT THE
CLAIM ARISES IN CONNECTION WITH THE TAXPAYER'S PROFIT-SEEKING
ACTIVITIES.  IT DOES NOT DEPEND ON THE CONSEQUENCES THAT MIGHT RESULT
TO A TAXPAYER'S INCOME-PRODUCING PROPERTY FROM A FAILURE TO DEFEAT THE
CLAIM, FOR, AS LYKES TEACHES, THAT "WOULD CARRY US TOO FAR" (FN15) AND
WOULD NOT BE COMPATIBLE WITH THE BASIC LINES OF EXPENSE DEDUCTIBILITY
DRAWN BY CONGRESS.  (FN16)  MOREOVER, SUCH A RULE WOULD LEAD TO
CAPRICIOUS RESULTS.  IF TWO TAXPAYERS ARE EACH SUED FOR AN AUTOMOBILE
ACCIDENT WHILE DRIVING FOR PLEASURE, DEDUCTIBILITY OF THEIR LITIGATION
COSTS WOULD TURN ON THE MERE CIRCUMSTANCE OF THE CHARACTER OF THE
ASSETS EACH HAPPENED TO POSSESS, THAT IS, WHETHER THE JUDGMENTS AGAINST
THEM STOOD TO BE SATISFIED OUT OF INCOME- OR NONINCOME-PRODUCING
PROPERTY.  WE SHOULD BE SLOW TO ATTRIBUTE TO CONGRESS A PURPOSE
PRODUCING SUCH UNEQUAL TREATMENT AMONG TAXPAYERS, RESTING ON NO
RATIONAL FOUNDATION. 

CONFIRMATION OF THESE CONCLUSIONS IS FOUND IN THE INCONGRUITIES THAT
WOULD FOLLOW FROM ACCEPTANCE OF THE COURT OF CLAIMS' REASONING IN THIS
CASE.  HAD THIS RESPONDENT TAXPAYER CONDUCTED HIS AUTOMOBILE-DEALER
BUSINESS AS A SOLE PROPRIETORSHIP, RATHER THAN IN CORPORATE FORM, AND
CLAIMED A DEDUCTION UNDER SEC. 23(A)(1), (FN17) THE POTENTIAL IMPACT OF
HIS WIFE'S CLAIMS WOULD HAVE BEEN NO DIFFERENT THAN IN THE PRESENT
SITUATION.  YET IT CANNOT WELL BE SUPPOSED THAT SEC. 23(A)(1) WOULD
HAVE AFFORDED HIM A DEDUCTION, SINCE HIS EXPENDITURES, MADE IN
CONNECTION WITH A MARITAL LITIGATION, COULD HARDLY BE DEEMED "EXPENSES
...  INCURRED  ...  IN CARRYING ON ANY TRADE OR BUSINESS."  THUS, UNDER
THE COURT OF CLAIMS' VIEW EXPENSES MAY BE EVEN LESS DEDUCTIBLE IF THE
TAXPAYER IS CARRYING ON A TRADE OR BUSINESS INSTEAD OF SOME OTHER
INCOME-PRODUCING ACTIVITY.  BUT IT WAS MANIFESTLY CONGRESS' PURPOSE
WITH RESPECT TO DEDUCTIBILITY TO PLACE ALL INCOME-PRODUCING ACTIVITIES
ON AN EQUAL FOOTING.  AND IT WOULD SURELY BE A SURPRISING RESULT WERE
IT NOW TO TURN OUT THAT A CHANGE DESIGNED TO ACHIEVE EQUALITY OF
TREATMENT IN FACT HAD SERVED ONLY TO REVERSE THE INEQUALITY OF
TREATMENT. 

FOR THESE REASONS, WE RESOLVE THE CONFLICT AMONG THE LOWER COURTS ON
THE QUESTION BEFORE US (NOTE 4, SUPRA) IN FAVOR OF THE VIEW THAT THE
ORIGIN AND CHARACTER OF THE CLAIM WITH RESPECT TO WHICH AN EXPENSE WAS
INCURRED, RATHER THAN ITS POTENTIAL CONSEQUENCES UPON THE FORTUNES OF
THE TAXPAYER, IS THE CONTROLLING BASIC TEST OF WHETHER THE EXPENSE WAS
"BUSINESS" OR "PERSONAL" AND HENCE WHETHER IT IS DEDUCTIBLE OR NOT
UNDER SEC. 23(A)(2).  WE FIND THE REASONING UNDERLYING THE CASES TAKING
THE "CONSEQUENCES" VIEW UNPERSUASIVE. 

BAER V. COMMISSIONER, 196 F.2D 646, UPON WHICH THE COURT OF CLAIMS
RELIED IN THE PRESENT CASE, IS THE LEADING AUTHORITY ON THAT SIDE OF
THE QUESTION.  (FN18)  THERE THE COURT OF APPEALS FOR THE EIGHTH
CIRCUIT ALLOWED A SEC. 23(A)(2) EXPENSE DEDUCTION TO A TAXPAYER HUSBAND
WITH RESPECT TO ATTORNEY'S FEES PAID IN A DIVORCE PROCEEDING IN
CONNECTION WITH AN ALIMONY SETTLEMENT WHICH HAD THE EFFECT OF
PRESERVING INTACT FOR THE HUSBAND HIS CONTROLLING STOCK INTEREST IN A
CORPORATION, HIS PRINCIPAL SOURCE OF LIVELIHOOD.  THE COURT REASONED
THAT SINCE THE EVIDENCE SHOWED THAT THE TAXPAYER WAS RELATIVELY
UNCONCERNED ABOUT THE DIVORCE ITSELF "THE CONTROVERSY DID NOT GO TO THE
QUESTION OF ...  (HIS) LIABILITY (FOR ALIMONY) (FN19) BUT TO THE MANNER
IN WHICH  ...  (THAT LIABILITY) MIGHT BE MET  ...  WITHOUT GREATLY
DISTURBING HIS FINANCIAL STRUCTURE"; THEREFORE THE LEGAL SERVICES WERE
"FOR THE PURPOSE OF CONSERVING AND MAINTAINING" HIS INCOME-PRODUCING
PROPERTY.  196 F.2D, AT 649-650, 651. 

IT IS DIFFICULT TO PERCEIVE ANY SIGNIFICANT DIFFERENCE BETWEEN THE
"QUESTION OF LIABILITY" AND "THE MANNER" OF ITS DISCHARGE, FOR IN BOTH
INSTANCES THE HUSBAND'S PURPOSE IS TO AVOID LOSING VALUABLE PROPERTY. 
INDEED MOST OF THE CASES WHICH HAVE FOLLOWED BAER HAVE PLACED LITTLE
RELIANCE ON THAT DISTINCTION, AND HAVE TENDED TO CONFINE THE DEDUCTION
TO SITUATIONS WHERE THE WIFE'S ALIMONY CLAIMS, IF SUCCESSFUL, MIGHT
HAVE COMPLETELY DESTROYED THE HUSBAND'S CAPACITY TO EARN A LIVING. 
(FN20)  SUCH MAY BE THE SITUATION WHERE LOSS OF CONTROL OF A PARTICULAR
CORPORATION IS THREATENED, IN CONTRAST TO INSTANCES WHERE THE IMPACT OF
A WIFE'S SUPPORT CLAIMS IS ONLY UPON DIVERSIFIED HOLDINGS OF INCOME
PRODUCING SECURITIES.  (FN21)  BUT THAT RATIONALE TOO IS
UNSATISFACTORY.  FOR DIVERSIFIED SECURITY HOLDINGS ARE NO LESS
"PROPERTY HELD FOR THE PRODUCTION OF INCOME" THAN A LARGE BLOCK OF
STOCK IN A SINGLE COMPANY.  AND AS WAS POINTED OUT IN LYKES, SUPRA, AT
126, IF THE RELATIVE IMPACT OF A CLAIM ON THE INCOME-PRODUCING
RESOURCES OF A TAXPAYER WERE TO DETERMINE DEDUCTIBILITY, SUBSTANTIAL
"UNCERTAINTY AND INEQUITY WOULD INHERE IN THE RULE." 

WE TURN THEN TO THE DETERMINATIVE QUESTION IN THIS CASE:  DID THE
WIFE'S CLAIMS RESPECTING RESPONDENT'S STOCKHOLDINGS ARISE IN CONNECTION
WITH HIS PROFIT-SEEKING ACTIVITIES? 

                                  II. 

IN CLASSIFYING RESPONDENT'S LEGAL EXPENSES THE COURT BELOW DID NOT
DISTINGUISH BETWEEN THOSE RELATING TO THE CLAIMS OF THE WIFE WITH
RESPECT TO THE EXISTENCE OF COMMUNITY PROPERTY AND THOSE INVOLVING THE
DIVISION OF ANY SUCH PROPERTY.  SUPRA, PP. 41-42.  NOR IS SUCH A
BREAKDOWN NECESSARY FOR A DISPOSITION OF THE PRESENT CASE.  IT IS
ENOUGH TO SAY THAT IN BOTH ASPECTS THE WIFE'S CLAIMS STEMMED ENTIRELY
FROM THE MARITAL RELATIONSHIP, AND NOT, UNDER ANY TENABLE VIEW OF
THINGS, FROM INCOME-PRODUCING ACTIVITY.  THIS IS OBVIOUSLY SO AS
REGARDS THE CLAIM TO MORE THAN AN EQUAL DIVISION OF ANY COMMUNITY
PROPERTY FOUND TO EXIST.  FOR ANY SUCH RIGHT DEPENDED ENTIRELY ON THE
WIFE'S MAKING GOOD HER CHARGES OF MARITAL INFIDELITY ON THE PART OF THE
HUSBAND.  THE SAME CONCLUSION IS NO LESS TRUE RESPECTING THE CLAIM
RELATING TO THE EXISTENCE OF COMMUNITY PROPERTY.  FOR NO SUCH PROPERTY
COULD HAVE EXISTED BUT FOR THE MARRIAGE RELATIONSHIP.  (FN22)  THUS
NONE OF RESPONDENT'S EXPENDITURES IN RESISTING THESE CLAIMS CAN BE
DEEMED "BUSINESS" EXPENSES, AND THEY ARE THEREFORE NOT DEDUCTIBLE UNDER
SEC. 23(A)(2). 

IN VIEW OF THIS CONCLUSION IT IS UNNECESSARY TO CONSIDER THE FURTHER
QUESTION SUGGESTED BY THE GOVERNMENT:  WHETHER THAT PORTION OF
RESPONDENT'S PAYMENTS ATTRIBUTABLE TO LITIGATING THE ISSUE OF THE
EXISTENCE OF COMMUNITY PROPERTY WAS A CAPITAL EXPENDITURE OR A PERSONAL
EXPENSE.  IN NEITHER EVENT WOULD THESE PAYMENTS BE DEDUCTIBLE FROM
GROSS INCOME. 

THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  DESPITE THE DIVORCE, DIXIE GILMORE IS REFERRED TO THROUGHOUT
THIS OPINION AS THE "WIFE." 

FN2  ALTHOUGH THE SECOND MRS. GILMORE, HAVING BEEN A PARTY TO ONE OF
THE TAX RETURNS INVOLVED IN THIS CASE, IS ALSO A RESPONDENT HERE, MR.
GILMORE WILL BE REFERRED TO HEREIN AS THE SOLE RESPONDENT. 

FN3  THE TAXABLE YEARS IN QUESTION ARE 1953 AND 1954.  THE YEAR 1954
IS GOVERNED BY THE 1954 CODE.  SINCE THE RELEVANT PROVISIONS, SEC. 212
AND 262, ARE SUBSTANTIALLY IDENTICAL WITH THOSE OF THE 1939 CODE, FOR
THE SAKE OF CLARITY WE SHALL REFER ONLY TO THE 1939 CODE. 

FN4  COMPARE LEWIS V. COMMISSIONER, 253 F.2D 821 (C.A.2D CIR.), AND
DOUGLAS V. COMMISSIONER, 33 T.C. 349, WITH GILMORE V. UNITED STATES, -
CT. CL. - , 290 F.2D 942 - THE PRESENT CASE - AND BAER V. COMMISSIONER,
196 F.2D 646 (C.A. 8TH CIR.).

FN5  HE OWNED 100% OF THE OUTSTANDING STOCK OF DON GILMORE-SAN
FRANCISCO, 73 1/3% OF THE OUTSTANDING STOCK OF DON GILMORE-HAYWARD, AND
60% OF THE OUTSTANDING STOCK OF DON GILMORE-RIVERSIDE. 

FN6  $1,024.90 IN 1953, AND $516.60 IN 1954. 

FN7  SEE PEREIRA V. PEREIRA, 156 CAL. 1, 103 P. 488; LENNINGER V.
LENNINGER, 167 CAL.  297, 139 P. 679; HUBER V. HUBER, 27 CAL. 2D 784,
167 P.2D 708. 

FN8  UNDER CALIFORNIA LAW A PARTY GRANTED A DIVORCE ON GROUNDS OF
EXTREME CRUELTY OR ADULTERY MAY, IN THE COURT'S DISCRETION, BE AWARDED
UP TO ALL OF THE COMMUNITY PROPERTY OF THE MARRIAGE.  CAL. CIV. CODE
SEC. 146.  SEE BARHAM V. BARHAM, 33 CAL. 2D 416, 202 P.2D 289; WILSON
V. WILSON, 159 CAL. APP. 2D 330, 323 P.2D 1017.  SUCH GROUNDS FOR
DIVORCE WERE ALLEGED BY EACH OF THESE SPOUSES AGAINST THE OTHER. 

FN9  SECTION 24(A)(1) PROVIDES:  "IN COMPUTING NET INCOME NO
DEDUCTION SHALL IN ANY CASE BE ALLOWED IN RESPECT OF - (1) PERSONAL,
LIVING, OR FAMILY EXPENSES  ...  ." 

FN10  SEVERAL OTHER ISSUES INVOLVING DEFICIENCY ASSESSMENTS FOR THE
YEARS 1953, 1954, AND 1955 WERE DECIDED BY THE COURT OF CLAIMS, BUT
THEY ARE NOT BEFORE THIS COURT. 

FN11  SURREY AND WARREN, CASES ON FEDERAL INCOME TAXATION, 272
(1960). 

FN12  SEE 4 MERTENS, LAW OF FEDERAL INCOME TAXATION (REV. ED. 1960),
SEC. 25A.09, AT 19-20. 

FN13  SEE H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 46. 

FN14  H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 75:  "A DEDUCTION
UNDER THIS SECTION IS SUBJECT, EXCEPT FOR THE REQUIREMENT OF BEING
INCURRED IN CONNECTION WITH A TRADE OR BUSINESS, TO ALL THE
RESTRICTIONS AND LIMITATIONS THAT APPLY IN THE CASE OF THE DEDUCTION
UNDER SECTION 23(A)(1)(A) OF AN EXPENSE PAID OR INCURRED IN CARRYING ON
ANY TRADE OR BUSINESS."  SEE ALSO S. REP. NO. 1631, 77TH CONG., 2D
SESS. 88. 

FN15  THE TREASURY REGULATIONS HAVE LONG PROVIDED:  "AN EXPENSE (NOT
OTHERWISE DEDUCTIBLE) PAID OR INCURRED BY AN INDIVIDUAL IN DETERMINING
OR CONTESTING A LIABILITY ASSERTED AGAINST HIM DOES NOT BECOME
DEDUCTIBLE BY REASON OF THE FACT THAT PROPERTY HELD BY HIM FOR THE
PRODUCTION OF INCOME MAY BE REQUIRED TO BE USED OR SOLD FOR THE PURPOSE
OF SATISFYING SUCH LIABILITY."  TREAS. REG. (1954 CODE) SEC. 1.212
1(M); SEE TREAS. REG.  118 (1939 CODE) SEC. 39.23(A)-15(K). 

FN16  EXPENSES OF CONTESTING TAX LIABILITIES ARE NOW DEDUCTIBLE UNDER
SEC. 212(3) OF THE 1954 CODE.  THIS PROVISION MERELY REPRESENTS A
POLICY JUDGMENT AS TO A PARTICULAR CLASS OF EXPENDITURES OTHERWISE NON
DEDUCTIBLE, LIKE EXTRAORDINARY MEDICAL EXPENSES, AND DOES NOT CAST ANY
DOUBT ON THE BASIC TAX STRUCTURE SET UP BY CONGRESS. 

FN17 WE FIND NO INDICATION THAT CONGRESS INTENDED SEC. 23(A)(2) TO
INCLUDE SUCH EXPENSES. 

FN18  BESIDES THE PRESENT CASE SEE TO THE SAME EFFECT, E.G., PATRICK
V. UNITED STATES, 288 F.2D 292 (C.A. 4TH CIR.), NO. 22, REVERSED TODAY,
POST, P. 53; OWENS V. COMMISSIONER, 273 F.2D 251 (C.A. 5TH CIR.);
BOWERS V. COMMISSIONER, 243 F.2D 904 (C.A. 6TH CIR.); MCMURTRY V.
UNITED STATES, 132 CT. CL. 418, 132 F. SUPP. 114. 

FN19  EXPENSES INCURRED IN DIVORCE LITIGATION HAVE GENERALLY BEEN
HELD TO BE NONDEDUCTIBLE.  SEE, E.G., RICHARDSON V. COMMISSIONER, 234
F.2D 248 (C.A. 4TH CIR.); SMITH'S ESTATE V. COMMISSIONER, 208 F.2D 349
(C.A. 3D CIR.); JOYCE V. COMMISSIONER, 3 B.T.A. 393.  SEE ALSO TREAS.
REG. (1954 CODE) SEC. 1.262-1(B)(7):  "GENERALLY, ATTORNEY'S FEES AND
OTHER COSTS PAID IN CONNECTION WITH A DIVORCE, SEPARATION, OR DECREE
FOR SUPPORT ARE NOT DEDUCTIBLE BY EITHER THE HUSBAND OR THE WIFE." 

FN20  SEE, E.G., THE PRESENT CASE, - CT. CL., AT - , 290 F.2D, AT
947; TRESSLER V. COMMISSIONER, 228 F.2D 356, 361 (C.A. 9TH CIR.);
HOWARD V. COMMISSIONER, 202 F.2D 28, 30 (C.A. 9TH CIR.). 

FN21  COMPARE, WITH THE PRESENT CASE, DAVIS V. UNITED STATES, 152 CT.
CL. 805, 287 F.2D 168, REVERSED IN PART ON OTHER GROUNDS, 370 U.S. 65,
IN WHICH THE COURT OF CLAIMS HELD TO BE NONDEDUCTIBLE THE LEGAL
EXPENSES OF RESISTING THE WIFE'S THREAT TO STOCK NOT ESSENTIAL TO
PROTECT THE HUSBAND'S EMPLOYMENT. 

FN22  THE RESPONDENT'S ATTEMPTED ANALOGY OF A MARITAL "PARTNERSHIP"
TO THE BUSINESS PARTNERSHIP INVOLVED IN THE KORNHAUSER CASE, SUPRA, IS
OF COURSE UNAVAILING.  THE MARRIAGE RELATIONSHIP CAN HARDLY BE DEEMED
AN INCOME-PRODUCING ACTIVITY. 
..END :














UNITED STATES V. PATRICK 372 U.S. 53 


NO. 22.  ARGUED MARCH 28, 1962.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED DECEMBER 6, 1962.  - DECIDED
FEBRUARY 18, 1963.  - 288 F.2D 292, REVERSED. 


RESPONDENT SUED FOR REFUND OF PART OF THE INCOME TAX PAID BY HIM FOR
THE YEAR 1956, CONTENDING THAT CERTAIN LEGAL FEES PAID BY HIM TO HIS
ATTORNEYS AND THOSE REPRESENTING HIS WIFE IN CONNECTION WITH A PROPERTY
SETTLEMENT INCIDENTAL TO DIVORCE PROCEEDINGS INSTITUTED BY HIS WIFE
WERE DEDUCTIBLE UNDER SEC. 212(2) OF THE INTERNAL REVENUE CODE OF 1954
AS "ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED  ...  FOR THE
MANAGEMENT, CONSERVATION, OR MAINTENANCE OF PROPERTY HELD FOR THE
PRODUCTION OF INCOME."  HE CONTENDED THAT THE PROPERTY SETTLEMENT WAS
DESIGNED TO SATISFY HIS MARITAL OBLIGATIONS TO HIS WIFE AND PROTECT THE
INTERESTS OF THEIR CHILDREN AND, AT THE SAME TIME, PRESERVE HIS CONTROL
OVER A NEWSPAPER PUBLISHING COMPANY TO WHICH HE HAD DEVOTED MANY YEARS
OF EFFORT.  HELD:  SINCE THE CLAIMS ASSERTED BY THE WIFE IN THE DIVORCE
ACTION AROSE FROM RESPONDENT'S MARITAL RELATIONSHIP WITH HER AND NOT
FROM ANY PROFIT-SEEKING ACTIVITY, NONE OF THE LEGAL FEES PAID BY
RESPONDENT IS DEDUCTIBLE AS "BUSINESS" EXPENSES.  UNITED STATES V.
GILMORE, ANTE, P. 39.  PP. 53-57. 

UNITED STATES V. PATRICK ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION, SIMILAR TO THAT DECIDED TODAY IN NO.
21, UNITED STATES V. GILMORE, ANTE, P. 39, AS TO THE DEDUCTIBILITY OF
CERTAIN LEGAL FEES PAID BY THE RESPONDENT TO HIS ATTORNEYS AND
ATTORNEYS REPRESENTING HIS WIFE IN CONNECTION WITH DIVORCE PROCEEDINGS
INSTITUTED BY THE WIFE.  IN A SUIT FOR REFUND CONTESTING THE
COMMISSIONER'S DISALLOWANCE OF SUCH A DEDUCTION CLAIMED IN THE
TAXPAYER'S 1956 FEDERAL INCOME TAX RETURN, THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF SOUTH CAROLINA HELD THESE EXPENSES TO
BE DEDUCTIBLE UNDER SEC. 212(2) OF THE INTERNAL REVENUE CODE OF 1954
(FN1) 186 F. SUPP. 48, THE COURT OF APPEALS AFFIRMED, 288 F.2D 292, AND
WE GRANTED CERTIORARI ON THE GOVERNMENT'S PETITION, 368 U.S. 817. 
(FN2) 

IN 1955 RESPONDENT'S WIFE (FN3) SUED FOR DIVORCE, ALLEGING ADULTERY
ON THE PART OF HER HUSBAND.  EXTENDED NEGOTIATIONS BY THE ATTORNEYS FOR
BOTH PARTIES RESULTED IN A PROPERTY SETTLEMENT AGREEMENT, AND
THEREAFTER RESPONDENT FILED HIS ANSWER TO THE COMPLAINT NEITHER
ADMITTING NOR DENYING THE ALLEGATIONS OF ADULTERY.  RESPONDENT DID NOT
TESTIFY AT THE TRIAL.  THE SOUTH CAROLINA DIVORCE COURT GRANTED THE
WIFE AN ABSOLUTE DIVORCE, APPROVED THE PROPERTY SETTLEMENT AGREEMENT,
AND IN ACCORDANCE THEREWITH ORDERED RESPONDENT TO PAY THE ATTORNEYS'
FEES FOR BOTH PARTIES. 

AT THE TIME OF THESE PROCEEDINGS, RESPONDENT WAS PRESIDENT OF THE
HERALD PUBLISHING COMPANY IN ROCK HILL, SOUTH CAROLINA, AND EDITOR OF
THE NEWSPAPER PUBLISHED BY IT.  HE OWNED 28% OF THE CORPORATION'S
OUTSTANDING STOCK, HIS WIFE OWNED 28%, THEIR OLDEST SON, HUGH PATRICK,
OWNED 9%, AND THE REMAINING 35% WAS HELD IN TRUSTS FOR HUGH AND THE
PARTIES' TWO MINOR CHILDREN.  THE REAL PROPERTY ON WHICH THE HERALD
COMPANY WAS SITUATED WAS OWNED BY RESPONDENT AND HIS WIFE, THE FORMER
HAVING AN 80% UNDIVIDED INTEREST AND THE LATTER A 20% UNDIVIDED
INTEREST.  THE COUPLE ALSO OWNED TWO HOUSES.  IN ADDITION, EACH
INDEPENDENTLY OWNED DIVERSIFIED SECURITIES AND OTHER ASSETS OF
SUBSTANTIAL VALUE. 

THE PROPERTY SETTLEMENT AGREEMENT RECITED THAT "BY VIRTUE OF THIS
AGREEMENT A FINAL AND LUMP SETTLEMENT HAS BEEN MADE OF ANY AND ALL
RIGHTS WHATSOEVER  ...  CONCERNING THE MATTER OF SUPPORT, SEPARATE
MAINTENANCE, ALIMONY OR ANY FINANCIAL OBLIGATION OF WHATSOEVER SORT DUE
TO (THE WIFE)  ... ON ACCOUNT OF AND GROWING OUT OF THE MARITAL
RELATIONSHIP OF THE PARTIES  ...  ."  BESIDES PROVISIONS FOR THE
CUSTODY AND SUPPORT OF THE MINOR CHILDREN AND A PROVISION GIVING ONE OF
THE TWO HOUSES TO EACH OF THE PARTIES, CERTAIN ARRANGEMENTS WERE MADE
CONCERNING THE RESPECTIVE INTERESTS IN THE NEWSPAPER PROPERTIES. 
RESPONDENT DELIVERED TO HIS WIFE HIGH-QUALITY SECURITIES WORTH
$112,000, THE AGREED VALUE OF HER 28% OF THE PUBLISHING COMPANY STOCK,
WHICH SHE TRANSFERRED TO HIM SUBJECT TO THE CONDITION THAT SUCH STOCK
SHOULD GO TO THEIR THREE CHILDREN IN THE EVENT OF HIS DEATH OR A SALE
OF THE ENTIRE BUSINESS.  A NEW LONG-TERM LEASE OF THE REAL PROPERTY
HOUSING THE NEWSPAPER WAS ENTERED INTO WITH THE CORPORATION, AND BOTH
PARTIES THEN TRANSFERRED THEIR INTERESTS IN THIS PROPERTY TO A TRUST,
THE INCOME THEREFROM BEING PAYABLE TO THE WIFE FOR LIFE AND THE
REMAINDER TO PASS IN EQUAL SHARES TO THE CHILDREN.  FINALLY, RESPONDENT
AGREED TO PAY ALL OF HIS WIFE'S ATTORNEYS' FEES FOR SERVICES RENDERED
IN CONNECTION WITH THE DIVORCE AND PROPERTY SETTLEMENT ARRANGEMENTS. 

THESE FEES, PAID BY RESPONDENT IN 1956, AMOUNTED TO $24,000 - $12,000
TO HIS ATTORNEYS AND $12,000 TO HIS WIFE'S ATTORNEYS.  THE $24,000
TOTAL WAS ALLOCATED BY AGREEMENT OF COUNSEL AND THE PARTIES AS FOLLOWS:
$4,000 FOR HANDLING THE DIVORCE ITSELF; $16,000 FOR REARRANGING THE
STOCK INTERESTS IN THE PUBLISHING COMPANY; AND $4,000 FOR LEASING THE
REAL PROPERTY AND TRANSFERRING IT TO A TRUST.  RESPONDENT CLAIMED A
DEDUCTION FOR THE $16,000 ITEM AND FOR 80% OF THE $4,000 ($3,200) ITEM
RELATING TO THE BUSINESS REAL ESTATE. 

BOTH COURTS BELOW HELD THAT THE ENTIRE $19,200 WAS DEDUCTIBLE UNDER
SEC. 212(2) OF THE 1954 CODE AS AN "ORDINARY AND NECESSARY (EXPENSE)
PAID OR INCURRED  ...  FOR THE MANAGEMENT, CONSERVATION, OR MAINTENANCE
OF PROPERTY HELD FOR THE PRODUCTION OF INCOME."  THE GOVERNMENT'S
CONTENTION THAT THIS WAS A PERSONAL EXPENSE, NONDEDUCTIBLE UNDER SEC.
262 OF THE CODE, (FN4) WAS REJECTED.  RELYING ON BAER V. COMMISSIONER,
196 F.2D 646, AND CASES FOLLOWING IT (SEE NO. 21, ANTE, PP. 49-51), THE
DISTRICT COURT AND THE COURT OF APPEALS FOUND THAT THE FEES WERE
INCURRED NOT TO RESIST A LIABILITY, BUT TO ARRANGE HOW IT COULD BE MET
WITHOUT DEPRIVING THE TAXPAYER OF INCOME-PRODUCING PROPERTY, THE LOSS
OF WHICH WOULD HAVE DESTROYED HIS CAPACITY TO EARN INCOME.  THE
PROPERTY SETTLEMENT PROVISIONS, SO THE LOWER COURTS HELD, WERE DESIGNED
TO SATISFY RESPONDENT'S MARITAL OBLIGATIONS TO HIS WIFE AND PROTECT THE
INTERESTS OF HIS CHILDREN, YET AT THE SAME TIME PRESERVE RESPONDENT'S
CONTROL OVER THE PUBLISHING COMPANY, TO WHICH HE HAD DEVOTED MANY YEARS
OF EFFORT. 

THE SITUATION, IN SHORT, IS COMPARABLE TO THAT IN UNITED STATES V.
GILMORE, SUPRA.  THE PRINCIPLES HELD GOVERNING IN THAT CASE ARE EQUALLY
APPLICABLE HERE.  IT IS EVIDENT THAT THE CLAIMS ASSERTED BY THE WIFE IN
THE DIVORCE ACTION AROSE FROM RESPONDENT'S MARITAL RELATIONSHIP WITH
HER AND WERE THUS THE PRODUCT OF RESPONDENT'S PERSONAL OR FAMILY LIFE,
NOT PROFIT-SEEKING ACTIVITY.  AS WE HAVE HELD IN GILMORE, PAYMENTS MADE
FOR THE PURPOSE OF DISCHARGING SUCH CLAIMS ARE NOT DEDUCTIBLE AS
"BUSINESS" EXPENSES. 

WE FIND NO SIGNIFICANT DISTINCTION IN THE FACT THAT THE LEGAL FEES
FOR WHICH DEDUCTION IS CLAIMED WERE PAID FOR ARRANGING A TRANSFER OF
STOCK INTERESTS, LEASING REAL PROPERTY, AND CREATING A TRUST RATHER
THAN FOR CONDUCTING LITIGATION.  THESE MATTERS WERE INCIDENTAL TO
LITIGATION BROUGHT BY RESPONDENT'S WIFE, WHOSE CLAIMS ARISING FROM
RESPONDENT'S PERSONAL AND FAMILY LIFE WERE THE ORIGIN OF THE PROPERTY
ARRANGEMENTS.  THE PROPERTY SETTLEMENT AGREEMENT ITSELF RECITED THAT IT
SETTLED RIGHTS "GROWING OUT OF THE MARITAL RELATIONSHIP," SUPRA, P. 55,
AND BOTH COURTS BELOW FOUND THAT, ALTHOUGH NOMINALLY AN AGREEMENT FOR
THE PURCHASE OF THE WIFE'S PROPERTY, IT SERVED ULTIMATELY TO PROTECT
RESPONDENT'S INCOME-PRODUCING PROPERTY FROM AN ASSERTION OF HIS WIFE'S
LATENT MARITAL RIGHTS.  IT WOULD BE UNSOUND TO MAKE DEDUCTIBILITY TURN
ON THE NATURE OF THE MEASURES TAKEN TO FORESTALL A CLAIM RATHER THAN
THE SOURCE OF THE CLAIM ITSELF. 

AS IN THE GILMORE CASE, WE NEED NOT PASS ON THE GOVERNMENT'S
ALTERNATIVE CONTENTION THAT PART OF THE LEGAL FEES SOUGHT TO BE
DEDUCTED HERE ARE NOT EXPENSES AT ALL, BUT RATHER ARE CAPITAL OUTLAYS. 
SINCE WE HOLD THAT THE PAYMENTS WERE NOT DEDUCTIBLE AS "BUSINESS"
EXPENSES, IT MAKES NO DIFFERENCE FOR PRESENT PURPOSES WHETHER THEY ARE
PERSONAL EXPENSES OR CAPITAL EXPENDITURES; IN EITHER CASE THEY WOULD
NOT BE DEDUCTIBLE.  (FN5) 

WE CONCLUDE THAT NONE OF THE LEGAL FEES PAID BY RESPONDENT IS
DEDUCTIBLE, AND THE JUDGMENT OF THE COURT OF APPEALS IS ACCORDINGLY
REVERSED. 

FN1  SECTION 212 PROVIDES, IN PERTINENT PART:  "IN THE CASE OF AN
INDIVIDUAL, THERE SHALL BE ALLOWED AS A DEDUCTION ALL THE ORDINARY AND
NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE YEAR - ...  (2)
FOR THE MANAGEMENT, CONSERVATION, OR MAINTENANCE OF PROPERTY HELD FOR
THE PRODUCTION OF INCOME  ...  ." 

FN2  THIS CASE WAS ARGUED AT THE 1961 TERM, AND WAS RESTORED TO THE
CALENDAR FOR REARGUMENT AT THIS TERM.  369 U.S. 835. 

FN3  MR. PATRICK WILL BE REFERRED TO AS THE SOLE RESPONDENT.  THE
ADMINISTRATOR OF THE ESTATE OF HIS SECOND WIFE IS A PARTY ONLY BECAUSE
A JOINT RETURN WAS FILED.  RESPONDENT'S FORMER WIFE WILL BE REFERRED TO
AS THE "WIFE" NOTWITHSTANDING THE DIVORCE. 

FN4  SECTION 262 PROVIDES:  "EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
IN THIS CHAPTER, NO DEDUCTION SHALL BE ALLOWED FOR PERSONAL, LIVING, OR
FAMILY EXPENSES." 

FN5  IN VIEW OF OUR CONCLUSION THAT THE LEGAL FEES WERE NOT
"BUSINESS" EXPENSES, WE DO NOT REACH THE GOVERNMENT'S SECOND
ALTERNATIVE CONTENTION THAT AT LEAST THE FEES PAID BY RESPONDENT TO HIS
WIFE'S ATTORNEYS WERE NOT DEDUCTIBLE UNDER PRIOR DECISIONS OF THIS
COURT.  SEE, E.G., MAGRUDER V. SUPPLEE, 316 U.S. 394; INTERSTATE
TRANSIT LINES V. COMMISSIONER, 319 U.S. 590. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :









BANTAM BOOKS, INC. V. SULLIVAN 372 U.S. 58 


NO. 118.  ARGUED DECEMBER 3-4, 1962.  - DECIDED FEBRUARY 18, 1963.  -
REVERSED AND CAUSE REMANDED. 


THE RHODE ISLAND LEGISLATURE CREATED A COMMISSION "TO EDUCATE THE
PUBLIC CONCERNING ANY BOOK  ... OR OTHER THING CONTAINING OBSCENE,
INDECENT OR IMPURE LANGUAGE, OR MANIFESTLY TENDING TO THE CORRUPTION OF
THE YOUTH AS DEFINED IN OTHER SECTIONS AND TO INVESTIGATE AND RECOMMEND
THE PROSECUTION OF ALL VIOLATIONS OF SAID SECTIONS."  THE COMMISSION'S
PRACTICE WAS TO NOTIFY A DISTRIBUTOR THAT CERTAIN BOOKS OR MAGAZINES
DISTRIBUTED BY HIM HAD BEEN REVIEWED BY THE COMMISSION AND HAD BEEN
DECLARED BY A MAJORITY OF ITS MEMBERS TO BE OBJECTIONABLE FOR SALE,
DISTRIBUTION OR DISPLAY TO YOUTHS UNDER 18 YEARS OF AGE.  SUCH NOTICES
REQUESTED THE DISTRIBUTOR'S "COOPERATION" AND ADVISED HIM THAT COPIES
OF THE LISTS OF "OBJECTIONABLE" PUBLICATIONS WERE CIRCULATED TO LOCAL
POLICE DEPARTMENTS AND THAT IT WAS THE COMMISSION'S DUTY TO RECOMMEND
PROSECUTION OF PURVEYORS OF OBSCENITY.  FOUR OUT-OF-STATE PUBLISHERS OF
BOOKS WIDELY DISTRIBUTED IN THE STATE SUED IN A RHODE ISLAND COURT FOR
INJUNCTIVE RELIEF AND A DECLARATORY JUDGMENT THAT THE LAW AND THE
PRACTICES THEREUNDER WERE UNCONSTITUTIONAL.  THE COURT FOUND THAT THE
EFFECT OF THE COMMISSION'S NOTICES WAS TO INTIMIDATE DISTRIBUTORS AND
RETAILERS AND THAT THEY HAD RESULTED IN THE SUPPRESSION OF THE SALE OF
THE BOOKS LISTED.  IN THIS COURT, THE STATE ATTORNEY GENERAL CONCEDED
THAT THE NOTICES LISTED SEVERAL PUBLICATIONS THAT WERE NOT OBSCENE
WITHIN THIS COURT'S DEFINITION OF THE TERM.  HELD:  THE SYSTEM OF
INFORMAL CENSORSHIP DISCLOSED BY THIS RECORD VIOLATES THE FOURTEENTH
AMENDMENT.  PP. 59-72. 

(A)  THE FOURTEENTH AMENDMENT REQUIRES THAT REGULATION BY THE STATES
OF OBSCENITY CONFORM TO PROCEDURES THAT WILL ENSURE AGAINST THE
CURTAILMENT OF CONSTITUTIONALLY PROTECTED EXPRESSION, WHICH IS OFTEN
SEPARATED FROM OBSCENITY ONLY BY A DIM AND UNCERTAIN LINE.  PP. 65-66. 

(B)  ALTHOUGH THE RHODE ISLAND COMMISSION IS LIMITED TO INFORMAL
SANCTIONS, THE RECORD AMPLY DEMONSTRATES THAT IT DELIBERATELY SET ABOUT
TO ACHIEVE THE SUPPRESSION OF PUBLICATIONS DEEMED "OBJECTIONABLE" AND
SUCCEEDED IN ITS AIM.  PP. 66-67. 

(C)  THE ACTS AND PRACTICES OF THE MEMBERS AND EXECUTIVE SECRETARY OF
THE COMMISSION WERE PERFORMED UNDER COLOR OF STATE LAW AND SO
CONSTITUTED ACTS OF THE STATE WITHIN THE MEANING OF THE FOURTEENTH
AMENDMENT.  P. 68. 

(D)  THE COMMISSION'S PRACTICE PROVIDES NO SAFEGUARDS WHATEVER
AGAINST THE SUPPRESSION OF NONOBSCENE AND CONSTITUTIONALLY PROTECTED
MATTER; AND IT IS A FORM OF REGULATION THAT CREATES HAZARDS TO
PROTECTED FREEDOMS MARKEDLY GREATER THAN THOSE THAT ATTEND RELIANCE
UPON CRIMINAL SANCTIONS, WHICH MAY BE APPLIED ONLY AFTER A
DETERMINATION OF OBSCENITY HAS BEEN MADE IN A CRIMINAL TRIAL HEDGED
ABOUT WITH THE PROCEDURAL SAFEGUARDS OF THE CRIMINAL PROCESS.  PP. 68
70. 

(E) WHAT RHODE ISLAND HAS DONE, IN FACT, HAS BEEN TO SUBJECT THE
DISTRIBUTION OF PUBLICATIONS TO A SYSTEM OF PRIOR ADMINISTRATIVE
RESTRAINTS WITHOUT ANY PROVISION FOR NOTICE AND HEARING BEFORE
PUBLICATIONS ARE LISTED AS "OBJECTIONABLE" AND WITHOUT ANY PROVISION
FOR JUDICIAL REVIEW OF THE COMMISSION'S DETERMINATION THAT SUCH
PUBLICATIONS ARE "OBJECTIONABLE."  PP. 70-72. 

BANTAM BOOKS, INC., ET AL. V. SULLIVAN ET AL. 

APPEAL FROM THE SUPERIOR COURT OF RHODE ISLAND. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE RHODE ISLAND LEGISLATURE CREATED THE "RHODE ISLAND COMMISSION TO
ENCOURAGE MORALITY IN YOUTH," WHOSE MEMBERS AND EXECUTIVE SECRETARY ARE
THE APPELLEES HEREIN, AND GAVE THE COMMISSION INTER ALIA "  ...  THE
DUTY ...  TO EDUCATE THE PUBLIC CONCERNING ANY BOOK, PICTURE, PAMPHLET,
BALLAD, PRINTED PAPER OR OTHER THING CONTAINING OBSCENE, INDECENT OR
IMPURE LANGUAGE, OR MANIFESTLY TENDING TO THE CORRUPTION OF THE YOUTH
AS DEFINED IN SECTIONS 13, 47, 48 AND 49 OF CHAPTER 610 OF THE GENERAL
LAWS, AS AMENDED, AND TO INVESTIGATE AND RECOMMEND THE PROSECUTION OF
ALL VIOLATIONS OF SAID SECTIONS  ...  ."  (FN1)  THE APPELLANTS BROUGHT
THIS ACTION IN THE SUPERIOR COURT OF RHODE ISLAND (1) TO DECLARE THE
LAW CREATING THE COMMISSION IN VIOLATION OF THE FIRST AND FOURTEENTH
AMENDMENTS, AND (2) TO DECLARE UNCONSTITUTIONAL AND ENJOIN THE ACTS AND
PRACTICES OF THE APPELLEES THEREUNDER.  THE SUPERIOR COURT DECLINED TO
DECLARE THE LAW CREATING THE COMMISSION UNCONSTITUTIONAL ON ITS FACE
BUT GRANTED THE APPELLANTS AN INJUNCTION AGAINST THE ACTS AND PRACTICES
OF THE APPELLEES IN PERFORMANCE OF THEIR DUTIES.  THE SUPREME COURT OF
RHODE ISLAND AFFIRMED THE SUPERIOR COURT WITH RESPECT TO APPELLANTS'
FIRST PRAYER BUT REVERSED THE GRANT OF INJUNCTIVE RELIEF.  - R.I. - ,
176 A.2D 393 (1961).  (FN2)  APPELLANTS BROUGHT THIS APPEAL AND WE
NOTED PROBABLE JURISDICTION, 370 U.S. 933.  (FN3) 

APPELLANTS ARE FOUR NEW YORK PUBLISHERS OF PAPERBACK BOOKS WHICH HAVE
FOR SOMETIME BEEN WIDELY DISTRIBUTED IN RHODE ISLAND.  MAX SILVERSTEIN
& SONS IS THE EXCLUSIVE WHOLESALE DISTRIBUTOR OF APPELLANTS'
PUBLICATIONS THROUGHOUT MOST OF THE STATE.  THE COMMISSION'S PRACTICE
HAS BEEN TO NOTIFY A DISTRIBUTOR ON OFFICIAL COMMISSION STATIONERY THAT
CERTAIN DESIGNATED BOOKS OR MAGAZINES DISTRIBUTED BY HIM HAD BEEN
REVIEWED BY THE COMMISSION AND HAD BEEN DECLARED BY A MAJORITY OF ITS
MEMBERS TO BE OBJECTIONABLE FOR SALE, DISTRIBUTION OR DISPLAY TO YOUTHS
UNDER 18 YEARS OF AGE.  SILVERSTEIN HAD RECEIVED AT LEAST 35 SUCH
NOTICES AT THE TIME THIS SUIT WAS BROUGHT.  AMONG THE PAPERBACK BOOKS
LISTED BY THE COMMISSION AS "OBJECTIONABLE" WERE ONE PUBLISHED BY
APPELLANT DELL PUBLISHING CO., INC., AND ANOTHER PUBLISHED BY APPELLANT
BANTAM BOOKS, INC. (FN4) 

THE TYPICAL NOTICE TO SILVERSTEIN EITHER SOLICITED OR THANKED
SILVERSTEIN, IN ADVANCE, FOR HIS "COOPERATION" WITH THE COMMISSION,
USUALLY REMINDING SILVERSTEIN OF THE COMMISSION'S DUTY TO RECOMMEND TO
THE ATTORNEY GENERAL PROSECUTION OF PURVEYORS OF OBSCENITY.  (FN5)
COPIES OF THE LISTS OF "OBJECTIONABLE" PUBLICATIONS WERE CIRCULATED TO
LOCAL POLICE DEPARTMENTS, AND SILVERSTEIN WAS SO INFORMED IN THE
NOTICES. 

SILVERSTEIN'S REACTION ON RECEIPT OF A NOTICE WAS TO TAKE STEPS TO
STOP FURTHER CIRCULATION OF COPIES OF THE LISTED PUBLICATIONS.  HE
WOULD NOT FILL PENDING ORDERS FOR SUCH PUBLICATIONS AND WOULD REFUSE
NEW ORDERS.  HE INSTRUCTED HIS FIELD MEN TO VISIT HIS RETAILERS AND TO
PICK UP ALL UNSOLD COPIES, AND WOULD THEN PROMPTLY RETURN THEM TO THE
PUBLISHERS.  A LOCAL POLICE OFFICER USUALLY VISITED SILVERSTEIN SHORTLY
AFTER SILVERSTEIN'S RECEIPT OF A NOTICE TO LEARN WHAT ACTION HE HAD
TAKEN.  SILVERSTEIN WAS USUALLY ABLE TO INFORM THE OFFICER THAT A
SPECIFIC NUMBER OF THE TOTAL OF COPIES RECEIVED FROM A PUBLISHER HAD
BEEN RETURNED.  ACCORDING TO THE TESTIMONY, SILVERSTEIN ACTED AS HE DID
ON RECEIPT OF THE NOTICE "RATHER THAN FACE THE POSSIBILITY OF SOME SORT
OF A COURT ACTION AGAINST OURSELVES, AS WELL AS THE PEOPLE THAT WE
SUPPLY."  HIS "COOPERATION" WAS GIVEN TO AVOID BECOMING INVOLVED IN A
"COURT PROCEEDING" WITH A "DULY AUTHORIZED ORGANIZATION." 

THE SUPERIOR COURT MADE FACT FINDINGS AND THE FOLLOWING TWO,
SUPPORTED BY THE EVIDENCE AND NOT REJECTED BY THE SUPREME COURT OF
RHODE ISLAND, ARE PARTICULARLY RELEVANT: 

"8.  THE EFFECT OF THE SAID NOTICES (THOSE RECEIVED BY SILVERSTEIN,
INCLUDING THE TWO LISTING PUBLICATIONS OF APPELLANTS) WERE CLEARLY TO
INTIMIDATE THE VARIOUS BOOK AND MAGAZINE WHOLESALE DISTRIBUTORS AND
RETAILERS AND TO CAUSE THEM, BY REASON OF SUCH INTIMIDATION AND THREAT
OF PROSECUTION, (A) TO REFUSE TO TAKE NEW ORDERS FOR THE PROSCRIBED
PUBLICATIONS, (B) TO CEASE SELLING ANY OF THE COPIES ON HAND, (C) TO
WITHDRAW FROM RETAILERS ALL UNSOLD COPIES, AND (D) TO RETURN ALL UNSOLD
COPIES TO THE PUBLISHERS. 

"9.  THE ACTIVITIES OF THE RESPONDENTS (APPELLEES HERE) HAVE RESULTED
IN THE SUPPRESSION OF THE SALE AND CIRCULATION OF THE BOOKS LISTED IN
SAID NOTICES  ...  ." 

IN ADDITION TO THESE FINDINGS IT SHOULD BE NOTED THAT THE ATTORNEY
GENERAL OF RHODE ISLAND CONCEDED ON ORAL ARGUMENT IN THIS COURT THAT
THE BOOKS LISTED IN THE NOTICES INCLUDED SEVERAL THAT WERE NOT OBSCENE
WITHIN THIS COURT'S DEFINITION OF THE TERM. 

APPELLANTS ARGUE THAT THE COMMISSION'S ACTIVITIES UNDER RESOLUTION
73, AS AMENDED, AMOUNT TO A SCHEME OF GOVERNMENTAL CENSORSHIP DEVOID OF
THE CONSTITUTIONALLY REQUIRED SAFEGUARDS FOR STATE REGULATION OF
OBSCENTIY, AND THUS ABRIDGE FIRST AMENDMENT LIBERTIES, PROTECTED BY THE
FOURTEENTH AMENDMENT FROM INFRINGEMENT BY THE STATES.  WE AGREE THAT
THE ACTIVITIES OF THE COMMISSION ARE UNCONSTITUTIONAL AND THEREFORE
REVERSE THE RHODE ISLAND COURT'S JUDGMENT AND REMAND THE CASE FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  (FN6) 

WE HELD IN ALBERTS V. CALIFORNIA, DECIDED WITH ROTH V. UNITED STATES,
354 U.S. 476, 485, THAT "OBSCENTIY IS NOT WITHIN THE AREA OF
CONSTITUTIONALLY PROTECTED SPEECH OR PRESS" AND MAY THEREFORE BE
REGULATED BY THE STATES.  BUT THIS PRINCIPLE CANNOT BE STATED WITHOUT
AN IMPORTANT QUALIFICATION:

"  ...  IN ROTH ITSELF WE EXPRESSLY RECOGNIZED THE COMPLEXITY OF THE
TEST OF OBSCENITY FASHIONED IN THAT CASE, AND THE VITAL NECESSITY IN
ITS APPLICATION OF SAFEGUARDS TO PREVENT DENIAL OF 'THE PROTECTION OF
FREEDOM OF SPEECH AND PRESS FOR MATERIAL WHICH DOES NOT TREAT SEX IN A
MANNER APPEALING TO PRURIENT INTEREST.'  (354 U.S., AT 488)  ...  .  IT
FOLLOWS THAT, UNDER THE FOURTEENTH AMENDMENT, A STATE IS NOT FREE TO
ADOPT WHATEVER PROCEDURES IT PLEASES FOR DEALING WITH OBSCENITY ...
WITHOUT REGARD TO THE POSSIBLE CONSEQUENCES FOR CONSTITUTIONALLY
PROTECTED SPEECH."  MARCUS V. SEARCH WARRANT, 367 U.S. 717, 730-731. 

THUS, THE FOURTEENTH AMENDMENT REQUIRES THAT REGULATION BY THE STATES
OF OBSCENITY CONFORM TO PROCEDURES THAT WILL ENSURE AGAINST THE
CURTAILMENT OF CONSTITUTIONALLY PROTECTED EXPRESSION, WHICH IS OFTEN
SEPARATED FROM OBSCENITY ONLY BY A DIM AND UNCERTAIN LINE.  IT IS
CHARACTERISTIC OF THE FREEDOMS OF EXPRESSION IN GENERAL THAT THEY ARE
VULNERABLE TO GRAVELY DAMAGING YET BARELY VISIBLE ENCROACHMENTS.  OUR
INSISTENCE THAT REGULATIONS OF OBSCENITY SCRUPULOUSLY EMBODY THE MOST
RIGOROUS PROCEDURAL SAFEGUARDS, SMITH V. CALIFORNIA, 361 U.S. 147;
MARCUS V. SEARCH WARRANT, SUPRA, IS THEREFORE BUT A SPECIAL INSTANCE OF
THE LARGER PRINCIPLE THAT THE FREEDOMS OF EXPRESSION MUST BE RINGED
ABOUT WITH ADEQUATE BULWARKS.  SEE, E.G., THORNHILL V. ALABAMA, 310
U.S. 88; WINTERS V. NEW YORK, 333 U.S. 507; NAACP V. BUTTON, 371 U.S.
415.  "THE LINE BETWEEN SPEECH UNCONDITIONALLY GUARANTEED AND SPEECH
WHICH MAY LEGITIMATELY BE REGULATED  ...  IS FINELY DRAWN  ...  .  THE
SEPARATION OF LEGITIMATE FROM ILLEGITIMATE SPEECH CALLS FOR  ...
SENSITIVE TOOLS  ...  ."  SPEISER V. RANDALL, 357 U.S. 513, 525. 

BUT, IT IS CONTENDED, THESE SALUTARY PRINCIPLES HAVE NO APPLICATION
TO THE ACTIVITIES OF THE RHODE ISLAND COMMISSION BECAUSE IT DOES NOT
REGULATE OR SUPPRESS OBSCENITY BUT SIMPLY EXHORTS BOOKSELLERS AND
ADVISES THEM OF THEIR LEGAL RIGHTS.  THIS CONTENTION, PREMISED ON THE
COMMISSION'S WANT OF POWER TO APPLY FORMAL LEGAL SANCTIONS, IS
UNTENABLE.  IT IS TRUE THAT APPELLANTS' BOOKS HAVE NOT BEEN SEIZED OR
BANNED BY THE STATE, AND THAT NO ONE HAS BEEN PROSECUTED FOR THEIR
POSSESSION OR SALE.  BUT THOUGH THE COMMISSION IS LIMITED TO INFORMAL
SANCTIONS - THE THREAT OF INVOKING LEGAL SANCTIONS AND OTHER MEANS OF
COERCION, PERSUASION, AND INTIMIDATION - THE RECORD AMPLY DEMONSTRATES
THAT THE COMMISSION DELIBERATELY SET ABOUT TO ACHIEVE THE SUPPRESSION
OF PUBLICATIONS DEEMED "OBJECTIONABLE" AND SUCCEEDED IN ITS AIM.  (FN7)
WE ARE NOT THE FIRST COURT TO LOOK THROUGH FORMS TO THE SUBSTANCE AND
RECOGNIZE THAT INFORMAL CENSORSHIP MAY SUFFICIENTLY INHIBIT THE
CIRCULATION OF PUBLICATIONS TO WARRANT INJUNCTIVE RELIEF.  (FN8) 

IT IS NOT AS IF THIS WERE NOT REGULATION BY THE STATE OF RHODE
ISLAND.  THE ACTS AND PRACTICES OF THE MEMBERS AND EXECUTIVE SECRETARY
OF THE COMMISSION DISCLOSED ON THIS RECORD WERE PERFORMED UNDER COLOR
OF STATE LAW AND SO CONSTITUTED ACTS OF THE STATE WITHIN THE MEANING OF
THE FOURTEENTH AMENDMENT.  EX PARTE YOUNG, 209 U.S. 123.  CF. TERRY V.
ADAMS, 345 U.S. 461.  THESE ACTS AND PRACTICES DIRECTLY AND DESIGNEDLY
STOPPED THE CIRCULATION OF PUBLICATIONS IN MANY PARTS OF RHODE ISLAND. 
IT IS TRUE, AS NOTED BY THE SUPREME COURT OF RHODE ISLAND, THAT
SILVERSTEIN WAS "FREE" TO IGNORE THE COMMISSION'S NOTICES, IN THE SENSE
THAT HIS REFUSAL TO "COOPERATE" WOULD HAVE VIOLATED NO LAW.  BUT IT WAS
FOUND AS A FACT - AND THE FINDING, BEING AMPLY SUPPORTED BY THE RECORD,
BINDS US - THAT SILVERSTEIN'S COMPLIANCE WITH THE COMMISSION'S
DIRECTIVES WAS NOT VOLUNTARY.  PEOPLE DO NOT LIGHTLY DISREGARD PUBLIC
OFFICERS' THINLY VEILED THREATS TO INSTITUTE CRIMINAL PROCEEDINGS
AGAINST THEM IF THEY DO NOT COME AROUND, AND SILVERSTEIN'S REACTION,
ACCORDING TO UNCONTROVERTED TESTIMONY, WAS NO EXCEPTION TO THIS GENERAL
RULE.  THE COMMISSION'S NOTICES, PHRASED VIRTUALLY AS ORDERS,
REASONABLY UNDERSTOOD TO BE SUCH BY THE DISTRIBUTOR, INVARIABLY
FOLLOWED UP BY POLICE VISITATIONS, IN FACT STOPPED THE CIRCULATION OF
THE LISTED PUBLICATIONS EX PROPRIO VIGORE.  IT WOULD BE NAIVE TO CREDIT
THE STATE'S ASSERTION THAT THESE BLACKLISTS ARE IN THE NATURE OF MERE
LEGAL ADVICE, WHEN THEY PLAINLY SERVE AS INSTRUMENTS OF REGULATION
INDEPENDENT OF THE LAWS AGAINST OBSCENITY.  (FN9)  CF. JOINT ANTI
FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123. 

HEREIN LIES THE VICE OF THE SYSTEM.  THE COMMISSION'S OPERATION IS A
FORM OF EFFECTIVE STATE REGULATION SUPERIMPOSED UPON THE STATE'S
CRIMINAL REGULATION OF OBSCENITY AND MAKING SUCH REGULATION LARGELY
UNNECESSARY.  IN THUS OBVIATING THE NEED TO EMPLOY CRIMINAL SANCTIONS,
THE STATE HAS AT THE SAME TIME ELIMINATED THE SAFEGUARDS OF THE
CRIMINAL PROCESS.  CRIMINAL SANCTIONS MAY BE APPLIED ONLY AFTER A
DETERMINATION OF OBSCENITY HAS BEEN MADE IN A CRIMINAL TRIAL HEDGED
ABOUT WITH THE PROCEDURAL SAFEGUARDS OF THE CRIMINAL PROCESS.  THE
COMMISSION'S PRACTICE IS IN STRIKING CONTRAST, IN THAT IT PROVIDES NO
SAFEGUARDS WHATEVER AGAINST THE SUPPRESSION OF NONOBSCENE, AND
THEREFORE CONSTITUTIONALLY PROTECTED, MATTER.  IT IS A FORM OF
REGULATION THAT CREATES HAZARDS TO PROTECTED FREEDOMS MARKEDLY GREATER
THAN THOSE THAT ATTEND RELIANCE UPON THE CRIMINAL LAW. 

WHAT RHODE ISLAND HAS DONE, IN FACT, HAS BEEN TO SUBJECT THE
DISTRIBUTION OF PUBLICATIONS TO A SYSTEM OF PRIOR ADMINISTRATIVE
RESTRAINTS, SINCE THE COMMISSION IS NOT A JUDICIAL BODY AND ITS
DECISIONS TO LIST PARTICULAR PUBLICATIONS AS OBJECTIONABLE DO NOT
FOLLOW JUDICIAL DETERMINATIONS THAT SUCH PUBLICATIONS MAY LAWFULLY BE
BANNED.  ANY SYSTEM OF PRIOR RESTRAINTS OF EXPRESSION COMES TO THIS
COURT BEARING A HEAVY PRESUMPTION AGAINST ITS CONSTITUTIONAL VALIDITY. 
SEE NEAR V. MINNESOTA, 283 U.S. 697; LOVELL V. GRIFFIN, 303 U.S. 444,
451; SCHNEIDER V. STATE, 308 U.S. 147, 164; CANTWELL V. CONNECTICUT,
310 U.S. 296, 306; NIEMOTKO V. MARYLAND, 340 U.S. 268, 273; KUNZ V. NEW
YORK, 340 U.S. 290, 293; STAUB V. BAXLEY, 355 U.S. 313, 321.  WE HAVE
TOLERATED SUCH A SYSTEM ONLY WHERE IT OPERATED UNDER JUDICIAL
SUPERINTENDENCE AND ASSURED AN ALMOST IMMEDIATE JUDICIAL DETERMINATION
OF THE VALIDITY OF THE RESTRAINT.  (FN10)  KINGSLEY BOOKS, INC., V.
BROWN, 354 U.S. 436.  THE SYSTEM AT BAR INCLUDES NO SUCH SAVING
FEATURES.  ON THE CONTRARY, ITS CAPACITY FOR SUPPRESSION OF
CONSTITUTIONALLY PROTECTED PUBLICATIONS IS FAR IN EXCESS OF THAT OF THE
TYPICAL LICENSING SCHEME HELD CONSTITUTIONALLY INVALID BY THIS COURT. 
THERE IS NO PROVISION WHATEVER FOR JUDICIAL SUPERINTENDENCE BEFORE
NOTICES ISSUE OR EVEN FOR JUDICIAL REVIEW OF THE COMMISSION'S
DETERMINATIONS OF OBJECTIONABLENESS.  THE PUBLISHER OR DISTRIBUTOR IS
NOT EVEN ENTITLED TO NOTICE AND HEARING BEFORE HIS PUBLICATIONS ARE
LISTED BY THE COMMISSION AS OBJECTIONABLE.  MOREOVER, THE COMMISSION'S
STATUTORY MANDATE IS VAGUE AND UNINFORMATIVE, AND THE COMMISSION HAS
DONE NOTHING TO MAKE IT MORE PRECISE.  PUBLICATIONS ARE LISTED AS
"OBJECTIONABLE" WITHOUT FURTHER ELUCIDATION.  THE DISTRIBUTOR IS LEFT
TO SPECULATE WHETHER THE COMMISSION CONSIDERS HIS PUBLICATION OBSCENE
OR SIMPLY HARMFUL TO JUVENILE MORALITY.  FOR THE COMMISSION'S DOMAIN IS
THE WHOLE OF YOUTHFUL MORALS.  FINALLY, WE NOTE THAT ALTHOUGH THE
COMMISSION'S SUPPOSED CONCERN IS LIMITED TO YOUTHFUL READERS, THE
"COOPERATION" IT SEEKS FROM DISTRIBUTORS INVARIABLY ENTAILS THE
COMPLETE SUPPRESSION OF THE LISTED PUBLICATIONS; ADULT READERS ARE
EQUALLY DEPRIVED OF THE OPPORTUNITY TO PURCHASE THE PUBLICATIONS IN THE
STATE.  CF. BUTLER V. MICHIGAN, 352 U.S. 380.    THE PROCEDURES OF THE
COMMISSION ARE RADICALLY DEFICIENT.  THEY FALL FAR SHORT OF THE
CONSTITUTIONAL REQUIREMENTS OF GOVERNMENTAL REGULATION OF OBSCENITY. 
WE HOLD THAT THE SYSTEM OF INFORMAL CENSORSHIP DISCLOSED BY THIS RECORD
VIOLATES THE FOURTEENTH AMENDMENT. 

IN HOLDING THAT THE ACTIVITIES DISCLOSED ON THIS RECORD ARE
CONSTITUTIONALLY PROSCRIBED, WE DO NOT MEAN TO SUGGEST THAT PRIVATE
CONSULTATION BETWEEN LAW ENFORCEMENT OFFICERS AND DISTRIBUTORS PRIOR TO
THE INSTITUTION OF A JUDICIAL PROCEEDING CAN NEVER BE CONSTITUTIONALLY
PERMISSIBLE.  WE DO NOT HOLD THAT LAW ENFORCEMENT OFFICERS MUST
RENOUNCE ALL INFORMAL CONTACTS WITH PERSONS SUSPECTED OF VIOLATING
VALID LAWS PROHIBITING OBSCENITY.  WHERE SUCH CONSULTATION IS GENUINELY
UNDERTAKEN WITH THE PURPOSE OF AIDING THE DISTRIBUTOR TO COMPLY WITH
SUCH LAWS AND AVOID PROSECUTION UNDER THEM, IT NEED NOT RETARD THE FULL
ENJOYMENT OF FIRST AMENDMENT FREEDOMS.  BUT THAT IS NOT THIS CASE.  THE
APPELLEES ARE NOT LAW ENFORCEMENT OFFICERS; THEY DO NOT PRETEND THAT
THEY ARE QUALIFIED TO GIVE OR THAT THEY ATTEMPT TO GIVE DISTRIBUTORS
ONLY FAIR LEGAL ADVICE.  THEIR CONDUCT AS DISCLOSED BY THIS RECORD
SHOWS PLAINLY THAT THEY WENT FAR BEYOND ADVISING THE DISTRIBUTORS OF
THEIR LEGAL RIGHTS AND LIABILITIES.  THEIR OPERATION WAS IN FACT A
SCHEME OF STATE CENSORSHIP EFFECTUATED BY EXTRALEGAL SANCTIONS; THEY
ACTED AS AN AGENCY NOT TO ADVISE BUT TO SUPPRESS.  REVERSED AND
REMANDED. 

FN1 RESOLUTION NO. 73 H 1000, R.I. ACTS AND RESOLVES, JANUARY SESSION
1956, 1102-1103.  THE RESOLUTION CREATED A "COMMISSION TO ENCOURAGE
MORALITY IN YOUTH," TO BE COMPOSED OF NINE MEMBERS APPOINTED BY THE
GOVERNOR OF THE STATE.  THE MEMBERS WERE TO SERVE FOR STAGGERED, FIVE
YEAR TERMS.  THEY WERE TO RECEIVE NO COMPENSATION, BUT THEIR EXPENSES,
AS WELL AS THE EXPENSES INCURRED IN THE OPERATION OF THE COMMISSION
GENERALLY, WERE TO BE DEFRAYED OUT OF ANNUAL APPROPRIATIONS.  THE
ORIGINAL MANDATE OF THE COMMISSION WAS SUPERSEDED IN PART BY RESOLUTION
NO. 95 S 444, R.I. ACTS AND RESOLVES, JANUARY SESSION 1959, 880, WHICH
READS AS FOLLOWS: 

"IT SHALL BE THE DUTY OF SAID COMMISSION TO EDUCATE THE PUBLIC
CONCERNING ANY BOOK, PICTURE, PAMPHLET, BALLAD, PRINTED PAPER OR OTHER
THING CONTAINING OBSCENE, INDECENT OR IMPURE LANGUAGE, AS DEFINED IN
CHAPTER 11-31 OF THE GENERAL LAWS, ENTITLED 'OBSCENE AND OBJECTIONABLE
PUBLICATIONS AND SHOWS,' AND TO INVESTIGATE AND RECOMMEND THE
PROSECUTION OF ALL VIOLATIONS OF SAID SECTIONS, AND IT SHALL BE THE
FURTHER DUTY OF SAID COMMISSION TO COMBAT JUVENILE DELINQUENCY AND
ENCOURAGE MORALITY IN YOUTH BY (A) INVESTIGATING SITUATIONS WHICH MAY
CAUSE, BE RESPONSIBLE FOR OR GIVE RISE TO UNDESIRABLE BEHAVIOR OF
JUVENILES, (B) EDUCATE THE PUBLIC AS TO THESE CAUSES AND (C) RECOMMEND
LEGISLATION, PROSECUTION AND/OR TREATMENT WHICH WOULD AMELIORATE OR
ELIMINATE SAID CAUSES." 

THE COMMISSION'S ACTIVITIES ARE NOT LIMITED TO THE CIRCULATION OF
LISTS OF OBJECTIONABLE PUBLICATIONS.  FOR EXAMPLE, THE ANNUAL REPORT OF
THE COMMISSION ISSUED IN JANUARY 1960, RECITES IN PART: 

"IN SEPTEMBER, 1959, BECAUSE OF THE MANY COMPLAINTS FROM OUTRAGED
PARENTS AT THE TYPE OF FILMS BEING SHOWN AT THE RHODE ISLAND DRIVE-INS
AND ALSO THE LACK OF TEEN-AGE SUPERVISION WHILE PARKED, THIS COMMISSION
INITIATED AND COMPLETED A SURVEY ON THE DRIVE-IN THEATRES IN THE
STATE.  HIGH POINTS OF THE SURVEY NOTE THAT THERE ARE II (2) DRIVE-IN
THEATRES IN RHODE ISLAND WHICH OPERATE THROUGH SUMMER MONTHS AND REMAIN
OPEN UNTIL NOVEMBER AND THEN FOR WEEKENDS DURING THE WINTER, PROVIDING
CAR-HEATERS. 

     *         *    *         *         * 

"ACTING ON ITS POWER TO INVESTIGATE CAUSES OF DELINQUENCY, THE
COMMISSION HAS MET WITH SEVERAL STATE OFFICIALS FOR A DISCUSSION OF
JUVENILE DRINKING, THE MYRIAD AND COMPLEX CAUSES OF DELINQUENCY, AND
LEGAL ASPECTS OF THE COMMISSION'S OPERATIONS.  IT ALSO HELD A SPECIAL
MEETING WITH RHODE ISLAND POLICE AND LEGAL OFFICIALS IN SEPTEMBER,
1959, FOR A DISCUSSION ON THE EXTENT OF DELINQUENCY IN RHODE ISLAND AND
THE POSSIBLE FORMATION OF STATE-WIDE ORGANIZATION TO COMBAT IT." 

FN2  THE ACTION WAS BROUGHT PURSUANT TO TITLE 9, C. 30, GEN. LAWS
R.I., 1956 ED., AS AMENDED (UNIFORM DECLARATORY JUDGMENTS ACT). 

FN3  OUR APPELLATE JURISDICTION IS PROPERLY INVOKED, SINCE THE STATE
COURT JUDGMENT SOUGHT TO BE REVIEWED UPHELD A STATE STATUTE AGAINST THE
CONTENTION THAT, ON ITS FACE AND AS APPLIED, THE STATUTE VIOLATED THE
FEDERAL CONSTITUTION.  28 U.S.C. SEC. 1257(2).  DAHNKE-WALKER MILLING
CO. V. BONDURANT, 257 U.S. 282. 

FN4  PEYTON PLACE, BY GRACE METALIOUS, PUBLISHED (IN PAPERBACK
EDITION) BY APPELLANT DELL PUBLISHING CO., INC.; THE BRAMBLE BUSH, BY
CHARLES MERGENDAHL, PUBLISHED (IN PAPERBACK EDITION) BY APPELLANT
BANTAM BOOKS, INC. MOST OF THE OTHER 106 PUBLICATIONS WHICH, AS OF
JANUARY 1960, HAD BEEN LISTED AS OBJECTIONABLE BY THE COMMISSION WERE
ISSUES OF SUCH MAGAZINES AS "PLAYBOY," "ROGUE," "FROLIC," AND SO
FORTH.  THE ATTORNEY GENERAL OF RHODE ISLAND DESCRIBED SOME OF THE 106
PUBLICATIONS AS "HORROR" COMICS WHICH HE SAID WERE NOT OBSCENE AS THIS
COURT HAS DEFINED THE TERM. 

FN5  THE FIRST NOTICE RECEIVED BY SILVERSTEIN READS, IN PART, AS
FOLLOWS: 

"THIS AGENCY WAS ESTABLISHED BY LEGISLATIVE ORDER IN 1956 WITH THE
IMMEDIATE CHARGE TO PREVENT THE SALE, DISTRIBUTION OR DISPLAY OF
INDECENT AND OBSCENE PUBLICATIONS TO YOUTHS UNDER EIGHTEEN YEARS OF
AGE. 

"THE COMMISSIONS HAVE REVIEWED THE FOLLOWING PUBLICATIONS AND BY
MAJORITY VOTE HAVE DECLARED THEY ARE COMPLETELY OBJECTIONABLE FOR SALE,
DISTRIBUTION OR DISPLAY FOR YOUTHS AND EIGHTEEN YEARS OF AGE. 

     *         *         *         *         * 

"THE CHIEFS OF POLICE HAVE BEEN GIVEN THE NAMES OF THE AFOREMENTIONED
MAGAZINES WITH THE ORDER THAT THEY ARE NOT TO BE SOLD, DISTRIBUTED OR
DISPLAYED TO YOUTHS UNDER EIGHTEEN YEARS OF AGE. 

"THE ATTORNEY GENERAL WILL ACT FOR US IN CASE OF NON-COMPLIANCE. 

"THE COMMISSIONERS TRUST THAT YOU WILL COOPERATE WITH THIS AGENCY IN
THEIR WORK  ...  . 

"ANOTHER LIST WILL FOLLOW SHORTLY. 

"THANKING YOU FOR YOUR ANTICIPATED COOPERATION, I AM:

                    "SINCERELY YOURS:

          "ALBERT J. MCALOON. 

"EXECUTIVE SECRETARY." 

ANOTHER NOTICE RECEIVED BY SILVERSTEIN READS IN PART: 

"THIS LIST SHOULD BE USED AS A GUIDE IN JUDGING OTHER SIMILAR
PUBLICATIONS NOT NAMED. 

"YOUR COOPERATION IN REMOVING THE LISTED AND OTHER OBJECTIONALBE
PUBLICATIONS FROM YOUR NEWSTANDS WILL BE APPRECIATED.  COOPERATIVE
ACTION WILL ELIMINATE THE NECESSITY OF OUR RECOMMENDING PROSECUTION TO
THE ATTORNEY GENERAL'S DEPARTMENT." 

AN UNDATED "NEWS LETTER" SENT TO SILVERSTEIN BY THE COMMISSION READS
IN PART:  "THE LISTS (OF OBJECTIONABLE PUBLICATIONS) HAVE BEEN SENT TO
DISTRIBUTORS AND POLICE DEPARTMENTS.  TO THE PRESENT COOPERATION HAS
BEEN GRATIFYING." 

FN6  APPELLANTS' STANDING HAS NOT BEEN, NOR COULD IT BE, SUCCESSFULLY
QUESTIONED.  THE APPELLANTS HAVE IN FACT SUFFERED A PALPABLE INJURY AS
A RESULT OF THE ACTS ALLEGED TO VIOLATE FEDERAL LAW, AND AT THE SAME
TIME THEIR INJURY HAS BEEN A LEGAL INJURY.  SEE JOINT ANTI-FASCIST
REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 151-152 (CONCURRING
OPINION).  THE FINDING THAT THE COMMISSION'S NOTICES IMPAIRED SALES OF
THE LISTED PUBLICATIONS, WHICH INCLUDE TWO BOOKS PUBLISHED BY
APPELLANTS, ESTABLISHES THAT APPELLANTS SUFFERED INJURY.  IT WAS A
LEGAL INJURY, ALTHOUGH MORE NEEDS BE SAID TO DEMONSTRATE THIS.  THE
COMMISSION'S NOTICES WERE CIRCULATED ONLY TO DISTRIBUTORS AND NOT, SO
FAR AS APPEARS, TO PUBLISHERS.  THE COMMISSION PURPORTS ONLY TO
REGULATE DISTRIBUTION; IT HAS MADE NO CLAIM TO HAVING JURISDICTION OF
OUT-OF-STATE PUBLISHERS.  HOWEVER, IF THIS WERE A PRIVATE ACTION, IT
WOULD PRESENT A CLAIM, PLAINLY JUSTICIABLE, OF UNLAWFUL INTERFERENCE IN
ADVANTAGEOUS BUSINESS RELATIONS.  AMERICAN MERCURY, INC., V. CHASE, 13
F.2D 224 (D.C.D.  MASS. 1926).  CF. 1 HARPER AND JAMES, TORTS (1956),
SECS. 6.11-6.12.  SEE ALSO POCKET BOOKS, INC., V. WALSH, 204 F. SUPP.
297 (D.C.D. CONN. 1962).  IT MAKES NO DIFFERENCE, SO FAR AS APPELLANTS'
STANDING IS CONCERNED, THAT THE ALLEGEDLY UNLAWFUL INTERFERENCE HERE IS
THE PRODUCT OF STATE ACTION.  SEE PIERCE V. SOCIETY OF SISTERS, 268
U.S. 510; TRUAX V. RAICH, 239 U.S. 33; TERRACE V. THOMPSON, 263 U.S.
197, 214-216; COLUMBIA BROADCASTING SYSTEM V. UNITED STATES, 316 U.S.
407, 422-423.  FURTHERMORE, APPELLANTS ARE NOT IN THE POSITION OF MERE
PROXIES ARGUING ANOTHER'S CONSTITUTIONAL RIGHTS.  THE CONSTITUTIONAL
GUARANTEE OF FREEDOM OF THE PRESS EMBRACES THE CIRCULATION OF BOOKS AS
WELL AS THEIR PUBLICATION, LOVELL V. GRIFFIN, 303 U.S. 444, 452, AND
THE DIRECT AND OBVIOUSLY INTENDED RESULT OF THE COMMISSION'S ACTIVITIES
WAS TO CURTAIL THE CIRCULATION IN RHODE ISLAND OF BOOKS PUBLISHED BY
APPELLANTS.  FINALLY, PRAGMATIC CONSIDERATIONS ARGUE STRONGLY FOR THE
STANDING OF PUBLISHERS IN CASES SUCH AS THE PRESENT ONE.  THE
DISTRIBUTOR WHO IS PREVENTED FROM SELLING A FEW TITLES IS NOT LIKELY TO
SUSTAIN SUFFICIENT ECONOMIC INJURY TO INDUCE HIM TO SEEK JUDICIAL
VINDICATION OF HIS RIGHTS.  THE PUBLISHER HAS THE GREATER ECONOMIC
STAKE, BECAUSE SUPPRESSION OF A PARTICULAR BOOK PREVENTS HIM FROM
RECOUPING HIS INVESTMENT IN PUBLISHING IT.  UNLESS HE IS PERMITTED TO
SUE, INFRINGEMENTS OF FREEDOM OF THE PRESS MAY TOO OFTEN GO
UNREMEDIED.  CF. NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S. 449,
459. 

FN7  FOR DISCUSSIONS OF THE PROBLEM OF "INFORMAL CENSORSHIP," SEE
LOCKHART AND MCCLURE, CENSORSHIP OF OBSCENITY:  THE DEVELOPING
CONSTITUTIONAL STANDARDS, 45 MINN. L. REV. 5, 6-9 AND N. 7-22 (1960);
NOTE, EXTRALEGAL CENSORSHIP OF LITERATURE, 33 N.Y.U.L. REV. 989 (1958);
NOTE, ENTERTAINMENT:  PUBLIC PRESSURES AND THE LAW, 71 HARV. L. REV.
326, 344-347 (1957); NOTE, REGULATION OF COMIC BOOKS, 68 HARV. L. REV.
489, 494-499 (1955); COMMENT, CENSORSHIP OF OBSCENE LITERATURE BY
INFORMAL GOVERNMENTAL ACTION, 22 UNIV.  OF CHI.  L. REV. 216 (1954);
LOCKHART AND MCCLURE, LITERATURE, THE LAW OF OBSCENITY, AND THE
CONSTITUTION, 38 MINN. L. REV. 295, 309-316 (1954). 

FN8  THREATS OF PROSECUTION OR OF LICENSE REVOCATION, OR LISTINGS OR
NOTIFICATIONS OF SUPPOSEDLY OBSCENE OR OBJECTIONABLE PUBLICATIONS OR
MOTION PICTURES, ON THE PART OF CHIEFS OF POLICE OR PROSECUTORS, HAVE
BEEN ENJOINED IN A NUMBER OF CASES.  SEE KINGSLEY INTERNATIONAL
PICTURES CORP. V. BLANC, 396 PA. 448, 153 A.2D 243 (1959); BUNIS V.
CONWAY, 17 APP. DIV. 2D 207, 234 N.Y.S.2D 435 (1962)(DICTUM); SUNSHINE
BOOK CO. V. MCCAFFREY, 4 APP. DIV. 2D 643, 168 N.Y.S.2D 268 (1957);
RANDOM HOUSE, INC., V. DETROIT, NO. 555684 CHANCERY, CIR. CT., WAYNE
COUNTY, MICH., MARCH 29, 1957; HMH PUBLISHING CO. V. GARRETT, 151 F.
SUPP. 903 (D.C.N.D. IND. 1957); NEW AMERICAN LIBRARY OF WORLD
LITERATURE V. ALLEN, 114 F. SUPP. 823 (D.C.N.D. OHIO 1953); BANTAM
BOOKS, INC., V. MELKO, 25 N.J. SUPER.  292, 96 A.2D 47 (CHANCERY 1953),
MODIFIED ON OTHER GROUNDS, 14 N.J. 524, 103 A.2D 256 (1954); DEARBORN
PUBLISHING CO., V. FITZGERALD, 271 F. 479 (D.C.N.D. OHIO 1921); EPOCH
PRODUCING CORP. V. DAVIS, 19 OHIO N.P. (N.S.)  465 (C.P. 1917).  CF. IN
RE LOUISIANA NEWS CO., 187 F. SUPP. 241 (D.C.E.D. LA. 1960); ROPER V.
WINNER, 244 S.W.2D 355, 357 (TEX. CIV. APP. 1951); AMERICAN MERCURY,
INC., V. CHASE, 13 F.2D 224 (D.C.D. MASS. 1926).  RELIEF HAS BEEN
DENIED IN THE FOLLOWING CASES: POCKET BOOKS, INC., V. WALSH, 204 F.
SUPP. 297 (D.C.D. CONN. 1962); DELL PUBLISHING CO. V. BEGGANS, 110 N.J.
EQ. 72, 158 A. 765 (CHANCERY 1932).  SEE ALSO MAGTAB PUBLISHING CORP.
V. HOWARD, 169 F. SUPP. 65 (D.C.W.D. LA. 1959).  NONE OF THE FOREGOING
CASES PRESENTS THE PRECISE FACTUAL SITUATION AT BAR, AND WE INTIMATE NO
VIEW ONE WAY OR THE OTHER AS TO THEIR CORRECTNESS. 

FN9  WE NOTE THAT THE COMMISSION ITSELF APPEARS TO HAVE UNDERSTOOD
ITS FUNCTION AS THE PROSCRIBING OF OBJECTIONABLE PUBLICATIONS, AND NOT
MERELY THE GIVING OF LEGAL ADVICE TO DISTRIBUTORS.  SEE THE FIRST
NOTICE RECEIVED BY SILVERSTEIN, QUOTED IN NOTE 5, SUPRA.  THE MINUTES
OF ONE OF THE COMMISSION'S MEETINGS READ IN PART: 

"  ...  FATHER FLANNERY (A MEMBER OF THE COMMISSION) NOTED THAT HE
HAD BEEN CALLED ABOUT MAGAZINES PROSCRIBED BY THE COMMISSION REMAINING
ON SALE AFTER LISTS HAD BEEN SENT TO DISTRIBUTORS AND POLICE, TO WHICH
MR. MCALOON SUGGESTED THAT IT COULD BE THAT THE SAME MAGAZINES WERE
SEEN, BUT THAT IT PROBABLY WAS NOT THE SAME EDITION PROSCRIBED BY THE
COMMISSION. 

"FATHER FLANNERY QUESTIONED THE STATE-WIDE COMPLIANCE BY THE POLICE,
OR ANYONE ELSE, TO GET THE PROSCRIBED MAGAZINES OFF THE STANDS.  MR.
MCALOON SHOWED THE COMMISSIONERS THE QUESTIONNAIRES SENT TO THE CHIEFS
OF POLICE FROM THIS OFFICE AND RETURNED TO US." 

THE MINUTES OF ANOTHER MEETING READ IN PART: 

"  ...  MR. SULLIVAN (MEMBER OF THE COMMISSION) SUGGESTED CALLING THE
CRANSTON CHIEF OF POLICE TO INQUIRE THE REASON PEYTON PLACE WAS STILL
BEING SOLD, DISTRIBUTED AND DISPLAYED SINCE THE POLICE DEPARTMENTS HAD
BEEN ADVISED OF THE COMMISSION'S VOTE." 

OF COURSE, IT IS IMMATERIAL WHETHER IN CARRYING ON THE FUNCTION OF
CENSOR, THE COMMISSION MAY HAVE BEEN EXCEEDING ITS STATUTORY
AUTHORITY.  ITS ACTS WOULD STILL CONSTITUTE STATE ACTION.  EX PARTE
YOUNG, 209 U.S. 123.  THE ISSUE OF STATUTORY AUTHORITY WAS NOT RAISED
OR ARGUED IN THIS LITIGATION. 

OUR HOLDING THAT THE SCHEME OF INFORMAL CENSORSHIP HERE CONSTITUTES
STATE ACTION IS IN NO WAY INCONSISTENT WITH STANDARD COMPUTING SCALE
CO. V. FARRELL, 249 U.S. 571.  IN THAT CASE IT WAS HELD THAT A BULLETIN
OF SPECIFICATIONS ISSUED BY THE STATE SUPERINTENDENT OF WEIGHTS AND
MEASURES COULD NOT BE DEEMED STATE ACTION FOR FOURTEENTH AMENDMENT
PURPOSES BECAUSE THE BULLETIN WAS PURELY ADVISORY; THE DECISION TURNED
ON THE FACT THAT THE BULLETIN WAS NOT COERCIVE IN PURPORT.    FN10
NOTHING IN THE COURT'S OPINION IN TIMES FILM CORP. V. CHICAGO, 365 U.S.
43, IS INCONSISTENT WITH THE COURT'S TRADITIONAL ATTITUDE OF DISFAVOR
TOWARD PRIOR RESTRAINTS OF EXPRESSION.  THE ONLY QUESTION TENDERED TO
THE COURT IN THAT CASE WAS WHETHER A PRIOR RESTRAINT WAS NECESSARILY
UNCONSTITUTIONAL UNDER ALL CIRCUMSTANCES.  IN DECLINING TO HOLD PRIOR
RESTRAINTS UNCONSTITUTIONAL PER SE, THE COURT DID NOT UPHOLD THE
CONSTITUTIONALITY OF ANY SPECIFIC SUCH RESTRAINT.  FURTHERMORE, THE
HOLDING WAS EXPRESSLY CONFINED TO MOTION PICTURES. 

MR. JUSTICE BLACK CONCURS IN THE RESULT.    MR. JUSTICE DOUGLAS,
CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I ADHERE TO THE VIEWS I
EXPRESSED IN ROTH V. UNITED STATES, 354 U.S. 476, 508-514, RESPECTING
THE VERY NARROW SCOPE OF GOVERNMENTAL AUTHORITY TO SUPPRESS
PUBLICATIONS ON THE GROUNDS OF OBSCENITY.  YET AS MY BROTHER BRENNAN
MAKES CLEAR, THE VICE OF RHODE ISLAND'S SYSTEM IS APPARENT WHATEVER
ONE'S VIEW OF THE CONSTITUTIONAL STATUS OF "OBSCENE" LITERATURE.  THIS
IS CENSORSHIP IN THE RAW; AND IN MY VIEW THE CENSOR AND FIRST AMENDMENT
RIGHTS ARE INCOMPATIBLE.  IF A VALID LAW HAS BEEN VIOLATED, AUTHORS AND
PUBLISHERS AND VENDORS CAN BE MADE TO ACCOUNT.  BUT THEY WOULD THEN
HAVE ON THEIR SIDE ALL THE PROCEDURAL SAFEGUARDS OF THE BILL OF RIGHTS,
INCLUDING TRIAL BY JURY.  FROM THE VIEWPOINT OF THE STATE THAT IS A
MORE CUMBERSOME PROCEDURE, ACTION ON THE MAJORITY VOTE OF THE CENSORS
BEING FAR EASIER.  BUT THE BILL OF RIGHTS WAS DESIGNED TO FENCE IN THE
GOVERNMENT AND MAKE ITS INTRUSIONS ON LIBERTY DIFFICULT AND ITS
INTERFERENCE WITH FREEDOM OF EXPRESSION WELL-NIGH IMPOSSIBLE. 

ALL NATIONS HAVE TRIED CENSORSHIP AND ONLY A FEW HAVE REJECTED IT.
ITS ABUSES MOUNT HIGH.  TODAY IRAN CENSORS NEWS STORIES IN SUCH A WAY
AS TO MAKE FALSE OR MISLEADING SOME REPORTS OF REPUTABLE NEWS
AGENCIES.  FOR THE IRANIAN WHO WRITES THE STORIES AND LIVES IN TEHERAN
GOES TO JAIL IF HE TELLS THE TRUTH.  THUS CENSORSHIP IN TEHERAN HAS AS
POWERFUL EXTRALEGAL SANCTIONS AS CENSORSHIP IN PROVIDENCE. 

THE PROVIDENCE REGIME IS PRODUCTIVE OF CAPRICIOUS ACTION.  A FIVE-TO
FOUR VOTE MAKES A BOOK "OBSCENE."  THE WRONG IS COMPOUNDED WHEN THE
ISSUE, THOUGH CLOSELY BALANCED IN THE MINDS OF SOPHISTICATED MEN, IS
RESOLVED AGAINST FREEDOM OF EXPRESSION AND ON THE SIDE OF CENSORSHIP. 
JUDGES, TO BE SURE, OFTEN DISAGREE AS TO THE DEFINITION OF OBSCENITY. 
BUT AN ESTABLISHED ADMINISTRATIVE SYSTEM THAT BANS BOOK AFTER BOOK,
EVEN THOUGH THEY MUSTER FOUR VOTES OUT OF NINE, MAKES FREEDOM OF
EXPRESSION MUST MORE PRECARIOUS THAN IT WOULD BE IF UNANIMITY WERE
REQUIRED.  THIS UNDERLINES MY BROTHER BRENNAN'S OBSERVATION THAT THE
PROVIDENCE REGIME "PROVIDES NO SAFEGUARDS WHATEVER AGAINST THE
SUPPRESSION OF NONOBSCENE, AND THEREFORE CONSTITUTIONALLY PROTECTED,
MATTER."  DOUBTS ARE RESOLVED AGAINST, FATHER THAN FOR, FREEDOM OF
EXPRESSION. 

THE EVILS OF UNREVIEWABLE ADMINISTRATIVE ACTION OF THIS CHARACTER ARE
AS ANCIENT AS DICTATORS.  GEORGE KENNAN, SIBERIA AND THE EXILE SYSTEM
(U. OF CHI.  1958) P. 60, GIVES INSIGHT INTO IT: 

"MR. BORODIN, ANOTHER RUSSIAN AUTHOR AND A WELL-KNOWN CONTRIBUTOR TO
THE RUSSIAN MAGAZINE ANNALS OF THE FATHERLAND, WAS BANISHED TO THE
TERRITORY OF YAKUTSK ON ACCOUNT OF THE ALLEGED 'DANGEROUS' AND
'PERNICIOUS' CHARACTER OF A CERTAIN MANUSCRIPT FOUND IN HIS HOUSE BY
THE POLICE DURING A SEARCH.   THIS MANUSCRIPT WAS A SPARE COPY OF AN
ARTICLE UPON THE ECONOMIC CONDITION OF THE PROVINCE OF VIATKA, WHICH
MR. BORODIN HAD WRITTEN AND SENT TO THE ABOVE-NAMED MAGAZINE, BUT
WHICH, UP TO THAT TIME, HAD NOT BEEN PUBLISHED.  THE AUTHOR WENT TO
EASTERN SIBERIA IN A CONVICT'S GRAY OVERCOAT WITH A YELLOW ACE OF
DIAMONDS ON HIS BACK, AND THREE OR FOUR MONTHS AFTER HIS ARRIVAL IN
YAKUTSK HE HAD THE PLEASURE OF READING IN THE ANNALS OF THE FATHERLAND
THE VERY SAME ARTICLE FOR WHICH HE HAD BEEN EXILED.  THE MINISTER OF
THE INTERIOR HAD SENT HIM TO SIBERIA MERELY FOR HAVING IN HIS
POSSESSION WHAT THE POLICE CALLED A 'DANGEROUS' AND 'PERNICIOUS'
MANUSCRIPT, AND THEN THE ST. PETERSBURG COMMITTEE OF CENSORSHIP HAD
CERTIFIED THAT ANOTHER COPY OF THAT SAME MANUSCRIPT WAS PERFECTLY
HARMLESS, AND HAD ALLOWED IT TO BE PUBLISHED, WITHOUT THE CHANGE OF A
LINE, IN ONE OF THE MOST POPULAR AND WIDELY CIRCULATED MAGAZINES IN THE
EMPIRE." 

THUS UNDER THE CZARS AN ALL-POWERFUL ELITE CONDEMNED TO THE SIBERIA
OF THAT DAY AN AUTHOR WHOM A MINORITY APPLAUDED.  ADMINISTRATIVE FIAT
IS AS DANGEROUS TODAY AS IT WAS THEN. 

MR. JUSTICE CLARK, CONCURRING IN THE RESULT. 

AS I READ THE OPINION OF THE COURT, IT DOES MUCH FINE TALKING ABOUT
FREEDOM OF EXPRESSION AND MUCH CONDEMNING OF THE COMMISSION'S
OVERZEALOUS EFFORTS TO IMPLEMENT THE STATE'S OBSCENITY LAWS FOR THE
PROTECTION OF RHODE ISLAND'S YOUTH BUT, AS IF SHEARING A HOG, COMES UP
WITH LITTLE WOOL.  IN SHORT, IT CREATES THE PROVERBIAL TEMPEST IN A
TEAPOT OVER A NUMBER OF NOTICES SENT OUT BY THE COMMISSION ASKING THE
COOPERATION OF MAGAZINE DISTRIBUTORS IN PREVENTING THE SALE OF OBSCENE
LITERATURE TO JUVENILES.  THE STORM WAS BREWED FROM CERTAIN INEPT
PHRASES IN THE NOTICES WHEREIN THE COMMISSION ASSUMED THE PREROGATIVE
OF ISSUING AN "ORDER" TO THE POLICE THAT CERTAIN PUBLICATIONS WHICH IT
DEEMED OBSCENE ARE "NOT TO BE SOLD, DISTRIBUTED OR DISPLAYED TO YOUTHS
UNDER EIGHTEEN YEARS OF AGE" AND STATED THAT "THE ATTORNEY GENERAL WILL
ACT FOR US IN CASE OF NON-COMPLIANCE."  BUT AFTER ALL THIS
EXPOSTULATION THE COURT, BEING UNABLE TO STRIKE DOWN RHODE ISLAND'S
STATUTE, SEE ALBERTS V. CALIFORNIA, 354 U.S. 476 (1957), DROPS A
DEMOLITION BOMB ON "THE COMMISSION'S PRACTICE" WITHOUT CLEARLY
INDICATING WHAT MIGHT BE SALVAGED FROM THE WRECKAGE.  THE COURT IN
CONDEMNING THE COMMISSION'S PRACTICE OWES RHODE ISLAND THE DUTY OF
ARTICULATING THE STANDARDS WHICH MUST BE MET, LEST THE RHODE ISLAND
SUPREME COURT BE LEFT AT SEA AS TO THE APPROPRIATE DISPOSITION ON
REMAND. 

IN MY VIEW THE COURT SHOULD SIMPLY DIRECT THE COMMISSION TO ABANDON
ITS DELUSIONS OF GRANDEUR AND LEAVE THE ISSUANCE OF "ORDERS" TO
ENFORCEMENT OFFICIALS AND "THE STATE'S CRIMINAL REGULATION OF
OBSCENITY" TO THE PROSECUTORS, WHO CAN SUBSTITUTE PROSECUTION FOR
"THINLY VEILED THREATS" IN APPROPRIATE CASES.  SEE ALBERTS V.
CALIFORNIA, SUPRA.  AS I READ THE OPINION THIS IS THE EXTENT OF THE
LIMITATIONS CONTEMPLATED BY THE COURT, LEAVING THE COMMISSION FREE, AS
MY BROTHER HARLAN INDICATES, TO PUBLICIZE ITS FINDINGS AS TO THE
OBSCENE CHARACTER OF ANY PUBLICATION; TO SOLICIT THE SUPPORT OF THE
PUBLIC IN PREVENTING OBSCENE PUBLICATIONS FROM REACHING JUVENILES; TO
FURNISH ITS FINDINGS TO PUBLISHERS, DISTRIBUTORS AND RETAILERS OF SUCH
PUBLICATIONS AND TO LAW ENFORCEMENT OFFICIALS; AND, FINALLY, TO SEEK
THE AID OF SUCH OFFICIALS IN PROSECUTING OFFENDERS OF THE STATE'S
OBSCENITY LAWS.  THIS COURT HAS LONG RECOGNIZED THAT "THE PRIMARY
REQUIREMENTS OF DECENCY MAY BE ENFORCED AGAINST OBSCENE PUBLICATIONS." 
NEAR V. MINNESOTA, 283 U.S. 697, 716 (1931); SEE KINGSLEY BOOKS, INC.,
V. BROWN, 354 U.S. 436 (1957).  CERTAINLY IN THE FACE OF RISING
JUVENILE CRIME AND LOWERING YOUTH MORALITY THE STATE IS EMPOWERED
CONSISTENT WITH THE CONSTITUTION TO USE THE ABOVE PROCEDURES IN
ATTEMPTING TO DISPEL THE DEFILEMENT OF ITS YOUTH BY OBSCENE
PUBLICATIONS.  WITH THIS UNDERSTANDING OF THE COURT'S HOLDING I JOIN IN
ITS JUDGMENT, BELIEVING THAT THE LIMITATIONS AS OUTLINED WOULD HAVE
LITTLE BEARING ON THE EFFICACY OF RHODE ISLAND'S LAW. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT'S OPINION FAILS TO GIVE DUE CONSIDERATION TO WHAT I REGARD
AS THE CENTRAL ISSUE IN THIS CASE - THE ACCOMMODATION THAT MUST BE MADE
BETWEEN RHODE ISLAND'S CONCERN WITH THE PROBLEM OF JUVENILE DELINQUENCY
AND THE RIGHT OF FREEDOM OF EXPRESSION ASSURED BY THE FOURTEENTH
AMENDMENT. 

THREE REASONS, AS I UNDERSTAND THE COURT'S OPINION, ARE GIVEN FOR
HOLDING THE PARTICULAR PROCEDURES ADOPTED BY THE RHODE ISLAND
COMMISSION UNDER THIS STATUTE, THOUGH NOT THE STATUTE ITSELF,
UNCONSTITUTIONAL:  (1) THE COMMISSION'S ACTIVITIES, CARRIED ON UNDER
COLOR OF STATE LAW, AMOUNT TO A SCHEME OF GOVERNMENTAL CENSORSHIP; (2)
ITS PROCEDURES LACK ADEQUATE SAFEGUARDS TO PROTECT NONOBSCENE MATERIAL
AGAINST SUPPRESSION; AND (3) THE GROUP'S OPERATIONS IN THE FIELD OF
YOUTH MORALITY MAY ENTAIL DEPRIVING THE ADULT PUBLIC OF ACCESS TO
CONSTITUTIONALLY PROTECTED MATERIAL. 

IN MY OPINION, NONE OF THESE REASONS IS OF OVERRIDING WEIGHT IN THE
CONTEXT OF WHAT IS OBVIOUSLY NOT AN EFFORT BY THE STATE TO OBSTRUCT
FREE EXPRESSION BUT AN ATTEMPT TO COPE WITH A MOST BAFFLING SOCIAL
PROBLEM. 

                      I. 

THIS RHODE ISLAND COMMISSION WAS FORMED FOR THE LAUDABLE PURPOSE OF
COMBATTING JUVENILE DELINQUENCY.  WHILE THERE IS AS YET NO CONSENSUS OF
SCIENTIFIC OPINION ON THE CAUSAL RELATIONSHIP BETWEEN YOUTHFUL READING
OR VIEWING OF "THE OBSCENE" AND DELINQUENT BEHAVIOR, SEE GREEN,
OBSCENITY, CENSORSHIP, AND JUVENILE DELINQUENCY, 14 U. OF TORONTO L.J.
229 (1962), RHODE ISLAND'S APPROACH TO THE PROBLEM IS NOT WITHOUT
RESPECTABLE SUPPORT, SEE S. REP. NO. 2381, 84TH CONG., 2D SESS. (1956);
KEFAUVER, OBSCENE AND PORNOGRAPHIC LITERATURE AND JUVENILE DELINQUENCY,
24 FED. PROB.  NO. 4, P. 3 (DEC. 1960).  THE STATES SHOULD HAVE A WIDE
RANGE OF CHOICE IN DEALING WITH SUCH PROBLEMS, ALBERTS V. CALIFORNIA,
DECIDED WITH ROTH V. UNITED STATES, 354 U.S. 476 (SEPARATE OPINION OF
THE WRITER, AT 500-502), AND THIS COURT SHOULD NOT INTERFERE WITH STATE
LEGISLATIVE JUDGMENTS ON THEM EXCEPT UPON THE CLEAREST SHOWING OF
UNCONSTITUTIONALITY. 

I CAN FIND NOTHING IN THIS RECORD THAT JUSTIFIES THE VIEW THAT RHODE
ISLAND HAS ATTEMPTED TO DEAL WITH THIS PROBLEM IN AN IRRESPONSIBLE
WAY.  I AGREE WITH THE COURT THAT THE TENOR OF SOME OF THE COMMISSION'S
LETTERS AND REPORTS IS SUBJECT TO SERIOUS CRITICISM, CARRYING AS THEY
DO AN AIR OF AUTHORITY WHICH THAT BODY DOES NOT POSSESS AND CONVEYING
AN IMPRESSION OF CONSEQUENCES WHICH BY NO MEANS MAY FOLLOW FROM
NONCOOPERATION WITH THE COMMISSION.  BUT THESE ARE THINGS WHICH COULD
SURELY BE CURED BY A WORD TO THE WISE.  THEY FURNISH NO OCCASION FOR
TODAY'S OPAQUE PRONOUNCEMENTS WHICH LEAVE THE COMMISSION IN THE DARK AS
TO THE PERMISSIBLE CONSTITUTIONAL SCOPE OF ITS FUTURE ACTIVITIES. 

GIVEN THE VALIDITY OF STATE OBSCENITY LAWS, ALBERTS V. CALIFORNIA,
SUPRA, I THINK THE COMMISSION IS CONSTITUTIONALLY ENTITLED (1) TO
EXPRESS ITS VIEWS ON THE CHARACTER OF ANY PUBLISHED READING OR OTHER
MATERIAL; (2) TO ENDEAVOR TO ENLIST THE SUPPORT OF LAW ENFORCEMENT
AUTHORITIES, OR THE COOPERATION OF PUBLISHERS AND DISTRIBUTORS, WITH
RESPECT TO ANY MATERIAL THE COMMISSION DEEMS OBSCENE; AND (3) TO NOTIFY
PUBLISHERS, DISTRIBUTORS, AND MEMBERS OF THE PUBLIC WITH RESPECT TO ITS
ACTIVITIES IN THESE REGARDS; BUT THAT IT MUST TAKE CARE TO REFRAIN FROM
THE KIND OF OVERBEARING UTTERANCES ALREADY REFERRED TO AND OTHERS THAT
MIGHT TEND TO GIVE ANY PERSON AN ERRONEOUS IMPRESSION AS TO EITHER THE
EXTENT OF THE COMMISSION'S AUTHORITY OR THE CONSEQUENCES OF A FAILURE
TO HEED ITS WARNINGS.  SINCE THE DECISION OF THE COURT DOES NOT REQUIRE
REINSTATEMENT OF THE BROAD INJUNCTION ISSUED BY THE TRIAL COURT, (FN1)
AND SINCE THE MAJORITY'S OPINION RESTS ON THE INVALIDITY OF THE
PARTICULAR PROCEDURES THE COMMISSION HAS PURSUED, I FIND NOTHING IN
THAT OPINION DENYING THE COMMISSION THE RIGHT TO CONDUCT THE
ACTIVITIES, JUST ENUMERATED, WHICH I BELIEVE IT IS CONSTITUTIONALLY
ENTITLED TO CARRY ON.

                                  II. 

IT IS SAID THAT THE RHODE ISLAND PROCEDURES LACK ADEQUATE SAFEGUARDS
AGAINST THE SUPPRESSION OF THE NONOBSCENE, IN THAT THE COMMISSION MAY
PRONOUNCE PUBLICATIONS OBSCENE WITHOUT ANY PRIOR JUDICIAL DETERMINATION
OR REVIEW.  BUT THE COMMISSION'S PRONOUNCEMENT IN ANY GIVEN INSTANCE IS
NOT SELF-EXECUTING.  ANY AFFECTED DISTRIBUTOR OR PUBLISHER WISHING TO
STAND HIS GROUND ON A PARTICULAR PUBLICATION MAY TEST THE COMMISSION'S
VIEWS BY WAY OF A DECLARATORY JUDGMENT ACTION (FN2) OR SUIT FOR
INJUNCTIVE RELIEF OR BY SIMPLY REFUSING TO ACCEPT THE COMMISSION'S
OPINION AND AWAITING CRIMINAL PROSECUTION IN RESPECT OF THE QUESTIONED
WORK. 

THAT THE CONSTITUTION REQUIRES NO MORE IS SHOWN BY THIS COURT'S
DECISION IN TIMES FILM CORP. V. CHICAGO, 365 U.S. 43.  THERE THE
PETITIONER REFUSED TO COMPLY WITH A CHICAGO ORDINANCE REQUIRING THAT
ALL MOTION PICTURES BE EXAMINED AND LICENSED BY A CITY OFFICIAL PRIOR
TO EXHIBITION.  IT WAS CONTENDED THAT REGARDLESS OF THE OBSCENITY VEL
NON OF ANY PARTICULAR PICTURE AND THE LICENSING STANDARDS EMPLOYED,
THIS REQUIREMENT IN ITSELF AMOUNTED TO AN UNCONSTITUTIONAL PRIOR
RESTRAINT ON FREE EXPRESSION.  STATING THAT THERE IS NO "ABSOLUTE
FREEDOM TO EXHIBIT, AT LEAST ONCE, ANY AND EVERY KIND OF MOTION
PICTURE," 365 U.S., AT 46, THIS COURT REJECTED THE CONTENTION AND
REMITTED THE PETITIONER TO A CHALLENGE OF AN APPLICATION OF THE CITY
ORDINANCE TO SPECIFIC FILMS.  THE COURT THUS REFUSED TO COUNTENANCE A
"BROADSIDE ATTACK" ON A SYSTEM OF REGULATION DESIGNED TO PREVENT THE
DISSEMINATION OF OBSCENE MATTER. 

CERTAINLY WITH RESPECT TO A SOPHISTICATED PUBLISHER OR DISTRIBUTOR,
(FN3) AND SHORN OF EMBELLISHING MANDATORY LANGUAGE, THIS COMMISSION'S
ADVISORY CONDEMNATION OF PARTICULAR PUBLICATIONS DOES NOT CREATE AS
GREAT A DANGER OF RESTRAINT ON EXPRESSION AS THAT INVOLVED IN TIMES
FILM, WHERE EXHIBITION OF A FILM WITHOUT A LICENSE WAS MADE A CRIME. 
(FN4)  NOR CAN SUCH DANGER BE REGARDED AS GREATER THAN THAT INVOLVED IN
THE PREADJUDICATION IMPACT OF THE SEQUESTRATION PROCEDURES SUSTAINED BY
THIS COURT IN KINGSLEY BOOKS, INC., V. BROWN, 354 U.S. 436.  FOR HERE
THE COMMISSION'S ACTION IS ATTENDED BY NO LEGAL SANCTIONS AND LEAVES
DISTRIBUTION OF THE QUESTIONED MATERIAL ENTIRELY UNDISTURBED.    THIS
CASE BEARS NO RESEMBLANCE TO WHAT THE COURT REFUSED TO SANCTION IN
MARCUS V. SEARCH WARRANT OF PROPERTY, 367 U.S. 717.  THERE POLICE
OFFICERS, PURSUANT TO MISSOURI PROCEDURES, SEIZED IN A ONE-DAY FORAY
UNDER SEARCH WARRANTS SOME 11,000 COPIES OF 280 PUBLICATIONS FOUND AT
THE APPELLANTS' VARIOUS PLACES OF BUSINESS AND BELIEVED BY THE OFFICERS
TO BE OBSCENE.  THE STATE COURT LATER FOUND THAT ONLY 100 OUT OF THE
280 PUBLICATIONS ACTUALLY WERE OBSCENE.  IN HOLDING "THAT MISSOURI'S
PROCEDURES AS APPLIED  ...  LACKED THE SAFEGUARDS WHICH DUE PROCESS
DEMANDS TO ASSURE NONOBSCENE MATERIAL THE CONSTITUTIONAL PROTECTION TO
WHICH IT IS ENTITLED," 367 U.S., AT 731, THE COURT EMPHASIZED THE
HISTORICAL CONNECTION BETWEEN THE SEARCH AND SEIZURE POWER AND THE
STIFLING OF LIBERTY OF EXPRESSION.  THE MISSOURI WARRANTS GAVE THE
BROADEST DISCRETION TO EACH EXECUTING OFFICER AND LEFT TO HIS AD HOC
JUDGMENT ON THE SPOT, WITH LITTLE OR NO OPPORTUNITY FOR DISCRIMINATING
DELIBERATION, WHICH PUBLICATIONS SHOULD BE SEIZED AS OBSCENE.  SINCE
"THERE WAS NO STEP IN THE PROCEDURE BEFORE SEIZURE DESIGNED TO FOCUS
SEARCHINGLY ON THE QUESTION OF OBSCENITY," 367 U.S., AT 732, IT WAS TO
BE EXPECTED THAT MUCH OF THE MATERIAL SEIZED UNDER THESE PROCEDURES
WOULD TURN OUT NOT TO BE OBSCENE, AS INDEED WAS LATER FOUND BY THE
STATE COURT IN THAT VERY CASE. 

NO SUCH HAZARDS TO FREE EXPRESSION EXIST IN THE PROCEDURES I REGARD
AS PERMISSIBLE IN THE PRESENT CASE.  OF CARDINAL IMPORTANCE,
DISSEMINATION OF A CHALLENGED PUBLICATION IS NOT PHYSICALLY OR LEGALLY
IMPEDED IN ANY WAY.  FURTHERMORE, THE ADVISORY CONDEMNATIONS COMPLAINED
OF ARE THE PRODUCT NOT OF HIT-OR-MISS POLICE ACTION BUT OF A
DELIBERATIVE BODY WHOSE JUDGMENTS ARE LIMITED BY STANDARDS EMBRACED IN
THE STATE'S GENERAL OBSCENITY STATUTE, THE CONSTITUTIONALITY OF WHICH
IS NOT QUESTIONED IN THIS CASE. 

THE VALIDITY OF THE FOREGOING CONSIDERATIONS IS NOT, IN MY OPINION,
AFFECTED BY THE STATE COURT FINDINGS THAT ONE OF APPELLANTS'
DISTRIBUTORS WAS LED TO WITHDRAW PUBLICATIONS, THOUGHT OBSCENE BY THE
COMMISSION, BECAUSE OF FEAR OF CRIMINAL PROSECUTION.  FOR THIS RECORD
LACKS AN ELEMENT WITHOUT WHICH THOSE FINDINGS ARE NOT OF CONTROLLING
CONSTITUTIONAL SIGNIFICANCE IN THE CONTEXT OF THE COMPETING STATE AND
INDIVIDUAL INTERESTS HERE AT STAKE:  THERE IS NO SHOWING THAT RHODE
ISLAND HAS PUT ANY ROADBLOCKS IN THE WAY OF ANY DISTRIBUTOR'S OR
PUBLISHER'S RECOURSE TO THE COURTS TO TEST THE VALIDITY OF THE
COMMISSION'S DETERMINATION RESPECTING ANY PUBLICATION, OR THAT THE
PURPOSE OF THESE PROCEDURES WAS TO STIFLE FREEDOM OF EXPRESSION. 

IT COULD NOT WELL BE SUGGESTED, AS I THINK THE COURT CONCEDES, THAT A
PROSECUTOR'S ANNOUNCEMENT THAT HE INTENDED TO ENFORCE STRICTLY THE
OBSCENITY LAWS OR THAT HE WOULD PROCEED AGAINST A PARTICULAR
PUBLICATION UNLESS WITHDRAWN FROM CIRCULATION AMOUNTED TO AN
UNCONSTITUTIONAL RESTRAINT UPON FREEDOM OF EXPRESSION, STILL LESS THAT
SUCH A RESTRAINT WOULD OCCUR FROM THE MERE EXISTENCE OF A CRIMINAL
OBSCENITY STATUTE.  CONCEDING THAT THE RESTRICTIVE EFFECT OF THE
COMMISSION'S PROCEDURES ON PUBLISHERS, AND A FORTIORI ON INDEPENDENT
DISTRIBUTORS, MAY BE GREATER THAN IN EITHER OF THOSE SITUATIONS, I DO
NOT BELIEVE THAT THE DIFFERENCES ARE OF CONSTITUTIONAL IMPORT, IN THE
ABSENCE OF EITHER OF THE TWO FACTORS INDICATED IN THE PRECEDING
PARAGRAPH.  THE CIRCUMSTANCE THAT PLACES THE COMMISSION'S PERMISSIBLE
PROCEDURES ON THE SAME CONSTITUTIONAL LEVEL AS THE ILLUSTRATIONS JUST
GIVEN IS THE FACT THAT IN EACH INSTANCE THE COURTS ARE OPEN TO THE
PERSON AFFECTED, AND THAT ANY MATERIAL, HOWEVER QUESTIONABLE, MAY BE
FREELY SPONSORED, CIRCULATED, READ, OR VIEWED UNTIL JUDICIALLY
CONDEMNED. 

IN ESSENCE WHAT THE COURT HOLDS IS THAT THESE PUBLISHERS OR THEIR
DISTRIBUTORS NEED NOT, WITH RESPECT TO ANY MATERIAL CHALLENGED BY THE
COMMISSION, VINDICATE THEIR RIGHT TO ITS PROTECTION IN ORDER TO BRING
THE CONSTITUTION TO THEIR AID.  THE EFFECT OF THIS HOLDING IS TO CUT
INTO THIS EFFORT OF THE STATE TO GET AT THE JUVENILE DELINQUENCY
PROBLEM, WITHOUT THIS COURT OR ANY OTHER EVER HAVING CONCRETELY FOCUSED
ON WHETHER ANY OF THE SPECIFIC MATERIAL CALLED IN QUESTION BY THE
COMMISSION IS OR IS NOT ENTITLED TO PROTECTION UNDER CONSTITUTIONAL
STANDARDS ESTABLISHED BY OUR DECISIONS.  (FN5)

THIS SEEMS TO ME TO WEIGHT THE ACCOMMODATION WHICH SHOULD BE MADE
BETWEEN THE COMPETING INTERESTS THAT THIS CASE PRESENTS ENTIRELY
AGAINST THE LEGITIMATE INTERESTS OF THE STATE.  I BELIEVE THAT THE
CORRECT COURSE IS TO REFUSE TO COUNTENANCE THIS "BROADSIDE ATTACK" ON
THESE STATE PROCEDURES AND, WITH AN APPROPRIATE CAVEAT AS TO THE
CHARACTER OF SOME OF THE COMMISSION'S PAST UTTERANCES, TO REMIT THE
APPELLANTS TO THEIR REMEDIES RESPECTING PARTICULAR PUBLICATIONS
CHALLENGED BY THE COMMISSION, AS WAS DONE IN THE TIMES FILM CASE. 
PUTTING THESE PUBLISHERS AND THEIR DISTRIBUTORS TO THE PAIN OF
VINDICATING CHALLENGED MATERIALS IS NOT TO PLACE THEM UNDER UNUSUAL
HARDSHIP, FOR AS THIS COURT HAS SAID IN ANOTHER CONTEXT, "BEARING THE
DISCOMFITURE AND COST" EVEN OF "A PROSECUTION FOR CRIME  ... (THOUGH)
BY AN INNOCENT PERSON IS ONE OF THE PAINFUL OBLIGATIONS OF
CITIZENSHIP."  COBBLEDICK V. UNITED STATES, 309 U.S. 323, 325. 

               III. 

THE COURT'S FINAL POINT - THAT THE COMMISSION'S ACTIVITIES MAY RESULT
IN KEEPING FROM THE ADULT PUBLIC PROTECTED MATERIAL, EVEN THOUGH
SUPPRESSIBLE SO FAR AS YOUTH IS CONCERNED - REQUIRES LITTLE ADDITIONAL
COMMENT.  IT IS ENOUGH TO SAY THAT SUCH A DETERMINATION SHOULD NOT BE
MADE AT LARGE, AS HAS BEEN DONE HERE.  IT SHOULD AWAIT A CASE WHEN
CIRCUMSPECT JUDGMENT CAN BE BROUGHT TO BEAR UPON PARTICULAR JUDICIALLY
SUPPRESSED PUBLICATIONS. 

BELIEVING THAT THE COMMISSION, ONCE ADVISED OF THE PERMISSIBLE
CONSTITUTIONAL SCOPE OF ITS ACTIVITIES, CAN BE COUNTED ON TO CONDUCT
ITSELF ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE RHODE ISLAND
SUPREME COURT.  CF. UNITED STATES V. HALEY, 371 U.S. 18. 

FN1  THE APPELLEES WERE ENJOINED "FROM DIRECTLY OR INDIRECTLY
NOTIFYING BOOK AND MAGAZINE WHOLESALE DISTRIBUTORS AND RETAILERS THAT
THE COMMISSION HAS FOUND OBJECTIONABLE ANY SPECIFIC BOOK OR MAGAZINE
FOR SALE, DISTRIBUTION OR DISPLAY; SAID INJUNCTION  ...  TO APPLY
WHETHER SUCH NOTIFICATION IS GIVEN DIRECTLY TO SAID BOOK AND MAGAZINE
WHOLESALE DISTRIBUTORS AND RETAILERS, OR ANY OF THEM, EITHER ORALLY OR
IN WRITING, OR THROUGH THE PUBLICATION OF LISTS OR BULLETINS, AND
IRRESPECTIVE OF THE MANNER OF DISSEMINATION OF SUCH LISTS OR
BULLETINS." 

FN2  RHODE ISLAND GEN. LAWS (SUPP. 1961), TIT. 9, C. 30 (UNIFORM
DECLARATORY JUDGMENTS ACT). 

FN3  THE PUBLISHERS AND DISTRIBUTORS INVOLVED IN THIS CASE ARE ALL,
SO FAR AS THIS RECORD SHOWS, SUBSTANTIAL BUSINESS CONCERNS, PRESUMABLY
REPRESENTED BY COMPETENT COUNSEL, AS WERE THE APPELLANTS HERE. 

FN4  IT SEEMS OBVIOUS THAT IN A NONLICENSING CONTEXT THE FORCE OF
TIMES FILM IS NOT LESSENED BY THE CIRCUMSTANCE THAT IN THIS CASE BOOKS
RATHER THAN MOTION PICTURES ARE INVOLVED. 

FN5  IN THEIR REPLY BRIEF (P. 4) APPELLANTS ACKNOWLEDGE:  "WE HAVE
NEVER ATTEMPTED TO DEAL WITH THE QUESTION OF OBSCENITY OR NONOBSCENITY
OF APPELLANTS' BOOKS." 
..END :
























NORTHERN NATURAL GAS CO. V. STATE CORPORATION COMMISSION OF KANSAS 372
U.S. 84 


NO. 62.  ARGUED DECEMBER 13, 1962.  - DECIDED FEBRUARY 18, 1963.  - 188
KAN. 351, 355, 362 P.2D 599, 609, REVERSED. 


ORDERS OF THE KANSAS STATE CORPORATION COMMISSION WHICH REQUIRE
APPELLANT, AN INTERSTATE PIPELINE COMPANY, TO PURCHASE NATURAL GAS
RATABLY FROM ALL WELLS CONNECTING WITH ITS PIPELINE SYSTEM IN EACH GAS
FIELD IN THE STATE HELD INVALID, BECAUSE THEY INVADE THE EXCLUSIVE
JURISDICTION WHICH THE NATURAL GAS ACT HAS CONFERRED UPON THE FEDERAL
POWER COMMISSION OVER THE SALE AND TRANSPORTATION OF NATURAL GAS IN
INTERSTATE COMMERCE FOR RESALE.  PP. 85-98. 

(A)  SINCE APPELLANT IS NOT A PRODUCER OF GAS BUT A PURCHASER OF GAS
FROM PRODUCERS, IT CANNOT BE SAID THAT THE ORDERS HERE INVOLVED
CONSTITUTE ONLY STATE REGULATION OF THE "PRODUCTION OR GATHERING" OF
NATURAL GAS, WHICH IS EXEMPTED FROM THE FEDERAL REGULATORY DOMAIN BY
SEC. 1(B) OF THE NATURAL GAS ACT.  PP. 89-90. 

(B)  SINCE THESE ORDERS ARE DIRECTED AT WHOLESALE PURCHASERS OF
NATURAL GAS IN KANSAS AND, SUBJECT TO CRIMINAL SANCTIONS FOR
NONCOMPLIANCE, REQUIRE THEM TO BALANCE THE OUTPUT OF ALL WELLS WITHIN
THE STATE FROM WHICH THEY TAKE, THEY NECESSARILY THREATEN THE ABILITY
OF THE FEDERAL POWER COMMISSION TO REGULATE COMPREHENSIVELY AND
UNIFORMLY THE INTRICATE RELATIONSHIP BETWEEN THE PURCHASERS' COST
STRUCTURES AND EVENTUAL COSTS TO WHOLESALE CUSTOMERS IN OTHER STATES. 
PP. 90-93. 

(C)  THESE ORDERS CANNOT BE SUSTAINED ON THE GROUND THAT THEY MERELY
CONSERVE SCARCE NATURAL RESOURCES.  ALTHOUGH CONSERVATION IS A
LEGITIMATE OBJECTIVE OF STATE REGULATION, IT CANNOT BE EFFECTUATED BY
MEANS SUCH AS THESE WHICH ENCROACH UPON A FEDERALLY PREEMPTED
REGULATORY DOMAIN.  PP. 93-96. 

(D)  THIS COURT REJECTS A SUGGESTION THAT THE CASE SHOULD BE REMANDED
TO THE KANSAS SUPREME COURT IN ORDER THAT THAT COURT MIGHT CONSTRUE THE
ORDERS AS RELIEVING THE APPELLANT OF A CONTRACTUAL OBLIGATION WHICH
CAUSED IT TO PURCHASE UNRATABLY, SINCE, AMONG OTHER REASONS, NO SUCH
ACCOMMODATION ON REMAND COULD AVOID OR POSTPONE THE FEDERAL QUESTION
PRESENTED BY THIS APPEAL.  PP. 96-98. 

NORTHERN NATURAL GAS CO. V. STATE CORPORATION COMMISSION OF KANSAS. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER ORDERS OF THE KANSAS STATE
CORPORATION COMMISSION WHICH REQUIRE THE APPELLANT, AN INTERSTATE
PIPELINE COMPANY, TO PURCHASE GAS RATABLY FROM ALL WELLS CONNECTING
WITH ITS PIPELINE SYSTEM IN EACH GAS FIELD WITHIN THE STATE (FN1)
INVALIDLY ENCROACH UPON THE EXCLUSIVE REGULATORY JURISDICTION OF THE
FEDERAL POWER COMMISSION CONFERRED BY THE NATURAL GAS ACT, 15 U.S.C.
SEC. 717-717W. 

THE APPELLANT'S PIPELINE SYSTEM IS CONNECTED TO SOME 1,100 NATURAL
GAS WELLS IN THE KANSAS HUGOTON FIELD (FN2) UNDER ABOUT 125 PURCHASE
CONTRACTS BETWEEN THE APPELLANT AND VARIOUS PRODUCERS.  THE CONTRACTS
HAVE BEEN DULY FILED WITH THE FEDERAL POWER COMMISSION.  UNDER THE
OLDEST CONTRACT, KNOWN AS THE REPUBLIC "A" CONTRACT, WHICH WAS MADE IN
1945 WITH REPUBLIC NATURAL GAS COMPANY, AND IS STILL IN FORCE AS
MODIFIED IN 1953, APPELLANT WAS OBLIGATED TO PURCHASE GAS FROM REPUBLIC
UP TO THE MAXIMUM PRODUCTION ALLOWABLES FOR REPUBLIC'S KANSAS WELLS
CONNECTED TO APPELLANT'S SYSTEM.  (FN3) APPELLANT'S CONTRACTS WITH ITS
OTHER PRODUCERS PROVIDE THAT APPELLANT'S PURCHASE COMMITMENTS
THEREUNDER ARE EXPRESSLY SUBJECT TO THE AGREEMENT WITH REPUBLIC.  THUS
APPELLANT WAS BOUND TO PURCHASE FROM ITS OTHER PRODUCERS ONLY SO MUCH
OF ITS REQUIREMENTS AS WERE NOT SATISFIED BY THE QUANTITIES WHICH THE
REPUBLIC CONTRACT REQUIRED TO BE TAKEN FROM REPUBLIC WELLS. 

APPELLANT'S REQUIREMENTS UNTIL 1958 WERE SUCH THAT ITS PURCHASES FROM
ITS VARIOUS PRODUCERS WERE NEVERTHELESS ROUGHLY RATABLE, THAT IS, IN
LIKE PROPORTION TO THE LEGALLY FIXED ALLOWABLES FOR EACH OF THE 1,100
WELLS IN THE HUGOTON FIELD.  HOWEVER, AFTER 1958 APPELLANT'S
REQUIREMENTS AGGREGATED SUBSTANTIALLY LESS THAN THE TOTAL ALLOWABLES
FOR THE HUGOTON WELLS.  (FN4)  THUS THE BALANCE OF THE TOTAL
REQUIREMENTS, AFTER THE CONTRACTUALLY REQUIRED PURCHASES FROM REPUBLIC
OF THE MAXIMUM ALLOWABLES FOR THE REPUBLIC WELLS, RESULTED IN
APPELLANT'S PURCHASES FROM APPELLANT'S OTHER PRODUCERS OF PROPORTIONS
SUBSTANTIALLY BELOW THE ALLOWABLES FOR THOSE PRODUCERS' WELLS.  THIS
IMBALANCE BROUGHT ABOUT THE ORDERS OF THE STATE COMMISSION OF WHICH
APPELLANT COMPLAINS. 

A KANSAS STATUTE (FN5) EMPOWERS THE STATE COMMISSION SO TO "REGULATE
THE TAKING OF NATURAL GAS FROM ANY AND ALL  ...  COMMON SOURCES OF
SUPPLY WITHIN THIS STATE AS TO PREVENT THE INEQUITABLE OR UNFAIR TAKING
FROM SUCH COMMON SOURCE OF SUPPLY  ...  AND TO PREVENT UNREASONABLE
DISCRIMINATION ...  IN FAVOR OF OR AGAINST ANY PRODUCER IN ANY SUCH
COMMON SOURCE OF SUPPLY."  THE COMMISSION ADOPTED IN 1944, AVOWEDLY AS
A CONSERVATION MEASURE, A BASIC PRORATION ORDER DESIGNED TO EFFECT
RATABLE PRODUCTION AND TO PROTECT CORRELATIVE RIGHTS IN THE HUGOTON
FIELD.  (FN6)  IN 1959, IN ORDER TO REQUIRE APPELLANT TO TAKE GAS FROM
REPUBLIC WELLS IN NO HIGHER PROPORTION TO THE ALLOWABLES THAN FROM THE
WELLS OF THE OTHER PRODUCERS, THE COMMISSION ENTERED THE ORDER
SPECIFICALLY DIRECTING APPELLANT TO PURCHASE GAS RATABLY FROM ALL 1,100
HUGOTON WELLS.  THAT ORDER WAS SUPERSEDED IN FEBRUARY 1960 BY THE
GENERAL ORDER, DIRECTED AT ALL NATURAL GAS PURCHASERS TAKING KANSAS
GAS.  THESE ORDERS PRESENTED THE APPELLANT WITH THE ALTERNATIVES OF
COMPLYING WITH THE OBLIGATIONS OF THE REPUBLIC CONTRACT AND INCREASING
ITS TAKES FROM THE OTHER PRODUCERS' WELLS - THUS TAKING MORE GAS FROM
KANSAS THAN IT COULD CURRENTLY USE - OR OF RISKING LIABILITY FOR A
BREACH OF THE REPUBLIC CONTRACT BY DECREASING ITS TAKES FROM THE
REPUBLIC WELLS BELOW THE ALLOWABLES.  (FN7) 

APPELLANT CHALLENGED THE TWO ORDERS IN THE KANSAS COURTS ON THE
GROUND, AMONG OTHERS, THAT THEY UNCONSTITUTIONALLY INVADED THE
EXCLUSIVE JURISDICTION OF THE FEDERAL POWER COMMISSION UNDER THE
NATURAL GAS ACT.  THE KANSAS SUPREME COURT SUSTAINED THE ORDERS, 188
KAN. 351, 355, 362 P.2D 599, 609; ON REHEARING, 188 KAN. 624, 364 P.2D
668.  WE NOTED PROBABLE JURISDICTION OF AN APPEAL TO THIS COURT, 370
U.S. 901.  WE DISAGREE WITH THE KANSAS SUPREME COURT, FOR WE HOLD THAT
THE STATE COMMISSION'S ORDERS DID INVADE THE EXCLUSIVE JURISDICTION
WHICH THE NATURAL GAS ACT HAS CONFERRED UPON THE FEDERAL POWER
COMMISSION OVER THE SALE AND TRANSPORTATION OF NATURAL GAS IN
INTERSTATE COMMERCE FOR RESALE. 

                                   I. 

WE CONSIDER FIRST THE GROUND RELIED UPON BY THE KANSAS SUPREME COURT,
THAT THE ORDERS CONSTITUTE ONLY STATE REGULATION OF THE "PRODUCTION OR
GATHERING" OF NATURAL GAS, WHICH IS EXEMPTED FROM THE FEDERAL
REGULATORY DOMAIN BY THE TERMS OF SEC. 1(B) OF THE NATURAL GAS ACT, 15
U.S.C. SEC. 717(B).  THESE ORDERS DO NOT REGULATE "PRODUCTION OR
GATHERING" WITHIN THAT EXEMPTION.  IN A LINE OF DECISIONS BEGINNING
WITH COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMM'N, 324 U.S. 581,
598, AND INTERSTATE NATURAL GAS CO. V. FEDERAL POWER COMM'N, 331 U.S.
682, 689-693, IT HAS BEEN CONSISTENTLY HELD THAT "PRODUCTION" AND
"GATHERING" ARE TERMS NARROWLY CONFINED TO THE PHYSICAL ACTS OF DRAWING
THE GAS FROM THE EARTH AND PREPARING IT FOR THE FIRST STAGES OF
DISTRIBUTION.  SEE PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672,
680-681; CONTINENTAL OIL CO. V. FEDERAL POWER COMM'N, 266 F.2D 208;
HUBER CORP. V. FEDERAL POWER COMM'N, 236 F.2D 550.  APPELLANT IS NOT A
PRODUCER BUT A PURCHASER OF GAS FROM PRODUCERS, AND NONE OF ITS
ACTIVITIES IN KANSAS SHOWN UPON THIS RECORD INVOLVES "PRODUCTION AND
GATHERING, IN THE SENSE THAT THOSE TERMS ARE USED IN SEC. 1(B)  ...
."  (FN8)  PHILLIPS PETROLEUM CO. V. WISCONSIN, SUPRA, AT 678. 

       II. 

THE KANSAS SUPREME COURT ALSO SUSTAINED THE ORDERS ON THE GROUND THAT
NEITHER ORDER THREATENED ANY ACTUAL INVASION OF THE REGULATORY DOMAIN
OF THE FEDERAL POWER COMMISSION SINCE IT "IN NO WAY INVOLVES THE PRICE
OF GAS."  188 KAN., AT 624, 364 P.2D, AT 668.  IT IS TRUE THAT IT WAS
SETTLED EVEN BEFORE THE PASSAGE OF THE NATURAL GAS ACT, THAT DIRECT
REGULATION OF THE PRICES OF WHOLESALES OF NATURAL GAS IN INTERSTATE
COMMERCE IS BEYOND THE CONSTITUTIONAL POWER OF THE STATES - WHETHER OR
NOT FRAMED TO ACHIEVE ENDS, SUCH AS CONSERVATION, ORDINARILY WITHIN THE
AMBIT OF STATE POWER.  SEE MISSOURI V. KANSAS NATURAL GAS CO., 265 U.S.
298; CF. PUBLIC UTILITIES COMM'N V. ATTLEBORO STEAM & ELECTRIC CO., 273
U.S. 83.  BUT OUR INQUIRY IS NOT AT AN END BECAUSE THE ORDERS DO NOT
DEAL IN TERMS WITH PRICES OR VOLUMES OF PURCHASES, CF. DAYTON-GOOSE
CREEK R. CO. V. UNITED STATES, 263 U.S. 456, 478.  THE NATURAL GAS ACT
PRECLUDES NOT MERELY DIRECT REGULATION BY THE STATES OF SUCH
CONTRACTUAL MATTERS.  SEE ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS
PUBLIC SERVICE CO., 314 U.S. 498, 506-509.  THE CONGRESS ENACTED A
COMPREHENSIVE SCHEME OF FEDERAL REGULATION OF "ALL WHOLESALES OF
NATURAL GAS IN INTERSTATE COMMERCE, WHETHER BY A PIPELINE COMPANY OR
NOT AND WHETHER OCCURRING BEFORE, DURING, OR AFTER TRANSMISSION BY AN
INTERSTATE PIPELINE COMPANY."  (FN9)  PHILLIPS PETROLEUM CO. V.
WISCONSIN, SUPRA, AT 682; SEE H.R. REP. NO. 709, 75TH CONG., 1ST SESS.
2. 

THE FEDERAL REGULATORY SCHEME LEAVES NO ROOM EITHER FOR DIRECT STATE
REGULATION OF THE PRICES OF INTERSTATE WHOLESALES OF NATURAL GAS,
NATURAL GAS PIPELINE CO. V. PANOMA CORP., 349 U.S. 44, OR FOR STATE
REGULATIONS WHICH WOULD INDIRECTLY ACHIEVE THE SAME RESULT.  (FN10)
THESE STATE ORDERS NECESSARILY DEAL WITH MATTERS WHICH DIRECTLY AFFECT
THE ABILITY OF THE FEDERAL POWER COMMISSION TO REGULATE COMPREHENSIVELY
AND EFFECTIVELY THE TRANSPORTATION AND SALE OF NATURAL GAS, AND TO
ACHIEVE THE UNIFORMITY OF REGULATION WHICH WAS AN OBJECTIVE OF THE
NATURAL GAS ACT.  THEY THEREFORE INVALIDLY INVADE THE FEDERAL AGENCY'S
EXCLUSIVE DOMAIN. 

THE DANGER OF INTERFERENCE WITH THE FEDERAL REGULATORY SCHEME ARISES
BECAUSE THESE ORDERS ARE UNMISTAKABLY AND UNAMBIGUOUSLY DIRECTED AT
PURCHASERS WHO TAKE GAS IN KANSAS FOR RESALE AFTER TRANSPORTATION IN
INTERSTATE COMMERCE.  IN EFFECT, THESE ORDERS SHIFT TO THE SHOULDERS OF
INTERSTATE PURCHASERS THE BURDEN OF PERFORMING THE COMPLEX TASK OF
BALANCING THE OUTPUT OF THOUSANDS OF NATURAL GAS WELLS WITHIN THE
STATE, CF. MILLER BROS. CO. V. MARYLAND, 347 U.S. 340 - A TASK WHICH
WOULD OTHERWISE PRESUMABLY BE THE STATE COMMISSION'S.  MOREOVER, ANY
READJUSTMENT OF PURCHASING PATTERNS WHICH SUCH ORDERS MIGHT REQUIRE OF
PURCHASERS WHO PREVIOUSLY TOOK UNRATABLY COULD SERIOUSLY IMPAIR THE
FEDERAL COMMISSION'S AUTHORITY TO REGULATE THE INTRICATE RELATIONSHIP
BETWEEN THE PURCHASERS' COST STRUCTURES AND EVENTUAL COSTS TO WHOLESALE
CUSTOMERS WHO SELL TO CONSUMERS IN OTHER STATES.  THIS RELATIONSHIP IS
A MATTER WITH RESPECT TO WHICH CONGRESS HAS GIVEN THE FEDERAL POWER
COMMISSION PARAMOUNT AND EXCLUSIVE AUTHORITY.  SEE FEDERAL POWER COMM'N
V. HOPE NATURAL GAS CO., 320 U.S. 591, 610.  THE PROSPECT OF
INTERFERENCE WITH THE FEDERAL REGULATORY POWER IN THIS AREA IS MADE
EVEN MORE ACUTE BY THE FACT THAT CRIMINAL SANCTIONS IMPOSED BY STATE
STATUTE FOR NONCOMPLIANCE FALL UPON SUCH PURCHASERS AND NOT UPON THE
LOCAL PRODUCERS.  THEREFORE, ALTHOUGH COLLISION BETWEEN THE STATE AND
FEDERAL REGULATION MAY NOT BE AN INEVITABLE CONSEQUENCE, THERE LURKS
SUCH IMMINENT POSSIBILITY OF COLLISION IN ORDERS PURPOSELY DIRECTED AT
INTERSTATE WHOLESALE PURCHASERS THAT THE ORDERS MUST BE DECLARED A
NULLITY IN ORDER TO ASSURE THE EFFECTUATION OF THE COMPREHENSIVE
FEDERAL REGULATION ORDAINED BY CONGRESS. 

IT MAY BE TRUE, AS THE STATE COMMISSION URGES, THAT ACCOMMODATION ON
THE PART OF THE FEDERAL POWER COMMISSION COULD AVOID DIRECT COLLISION -
BUT THIS ARGUMENT MISSES THE POINT.  NOT THE FEDERAL BUT THE STATE
REGULATION MUST BE SUBORDINATED, WHEN CONGRESS HAS SO PLAINLY OCCUPIED
THE REGULATORY FIELD.  CF. SAN DIEGO BUILDING TRADES COUNCIL V. GARMON,
359 U.S. 236.  WE HAVE ALREADY SAID THAT THE QUESTION TO BE ASKED UNDER
THIS STATUTE IS "WHETHER STATE AUTHORITY CAN PRACTICABLY REGULATE A
GIVEN AREA AND, IF WE FIND THAT IT CANNOT, THEN WE ARE IMPELLED TO
DECIDE THAT FEDERAL AUTHORITY GOVERNS."  FEDERAL POWER COMM'N V.
TRANSCONTINENTAL GAS PIPE LINE CORP., 365 U.S. 1, 19-20. 

                                  III. 

APPELLEE'S PRINCIPAL CONTENTION, SUSTAINED BY THE KANSAS SUPREME
COURT, IS THAT RATABLE TAKING IS ESSENTIAL FOR THE CONSERVATION OF
NATURAL GAS, AND THAT CONSERVATION IS TRADITIONALLY A FUNCTION OF STATE
POWER.  THERE IS NO DOUBT THAT THE STATES DO POSSESS POWER TO ALLOCATE
AND CONSERVE SCARCE NATURAL RESOURCES UPON AND BENEATH THEIR LANDS.  WE
HAVE RECOGNIZED SUCH POWER WITH PARTICULAR RESPECT TO NATURAL GAS. 
PATTERSON V. STANOLIND OIL & GAS CO., 305 U.S. 376; BANDINI PETROLEUM
CO. V. SUPERIOR COURT, 284 U.S. 8; WALLS V. MIDLAND CARBON CO., 254
U.S. 300.  BUT THE PROBLEM OF THIS CASE IS NOT AS TO THE EXISTENCE OR
EVEN THE SCOPE OF A STATE'S POWER TO CONSERVE ITS NATURAL RESOURCES;
THE PROBLEM IS ONLY WHETHER THE CONSTITUTION SANCTIONS THE PARTICULAR
MEANS CHOSEN BY KANSAS TO EXERCISE THE CONCEDED POWER IF THOSE MEANS
THREATEN EFFECTUATION OF THE FEDERAL REGULATORY SCHEME. 

WE HAVE ALREADY HELD THAT A PURPOSE, HOWEVER LEGITIMATE, TO CONSERVE
NATURAL RESOURCES, DOES NOT WARRANT DIRECT INTERFERENCE BY THE STATES
WITH THE PRICES OF NATURAL GAS WHOLESALES IN INTERSTATE COMMERCE,
CITIES SERVICE GAS CO. V. STATE CORPORATION COMM'N, 355 U.S. 391;
MICHIGAN WISCONSIN PIPE LINE CO. V. CORPORATION COMM'N, 355 U.S. 425. 
IT HAS BEEN SUGGESTED THAT THOSE DECISIONS ARE AT VARIANCE WITH
CHAMPLIN REFINING CO. V. CORPORATION COMM'N, 286 U.S. 210, IN WHICH WE
SUSTAINED A STATE PRORATION ORDER DESIGNED TO FURTHER CONSERVATION,
AGAINST A CHALLENGE UNDER THE COMMERCE CLAUSE.  (FN11)  WE REJECT THAT
SUGGESTION.  THE COURT IN CHAMPLIN CAREFULLY LIMITED THAT HOLDING TO
REGULATIONS WHICH, THE COURT OBSERVED PRECISELY, "APPLY ONLY TO
PRODUCTION AND NOT TO SALES OR TRANSPORTATION OF CRUDE OIL OR ITS
PRODUCTS."  THE COURT FURTHER NOTED, "SUCH PRODUCTION IS ESSENTIALLY A
MINING OPERATION AND THEREFORE IS NOT A PART OF INTERSTATE COMMERCE
...  ."  286 U.S., AT 235.  AND, AFTER ENACTMENT OF THE NATURAL GAS
ACT, IN CONFIRMING STATE POWER TO ACHIEVE CONSERVATION OBJECTIVES, THE
COURT TOOK CARE TO SAY, "THESE ENDS HAVE BEEN HELD TO JUSTIFY CONTROL
OVER PRODUCTION EVEN THOUGH THE USES TO WHICH PROPERTY MAY PROFITABLY
BE PUT ARE RESTRICTED."  CITIES SERVICE GAS CO. V. PEERLESS OIL & GAS
CO., SUPRA, AT 185-186.  THUS OUR CASES HAVE CONSISTENTLY RECOGNIZED A
SIGNIFICANT DISTINCTION, WHICH BEARS DIRECTLY UPON THE CONSTITUTIONAL
CONSEQUENCES, BETWEEN CONSERVATION MEASURES AIMED DIRECTLY AT
INTERSTATE PURCHASERS AND WHOLESALES FOR RESALE, AND THOSE AIMED AT
PRODUCERS AND PRODUCTION.  THE FORMER CANNOT BE SUSTAINED WHEN THEY
THREATEN, AS HERE, THE ACHIEVEMENT OF THE COMPREHENSIVE SCHEME OF
FEDERAL REGULATION. 

OF COURSE, THE KANSAS METHOD BEFORE US WOULD FAIL, FOR THE REASONS
GIVEN, EVEN IF IT WERE KANSAS' ONLY MEANS OF ATTAINING THESE ENDS.  THE
STATE DOES NOT, HOWEVER, APPEAR TO BE WITHOUT ALTERNATIVE MEANS OF
CHECKING WASTE AND DISPROPORTIONATE OR DISCRIMINATORY TAKING.  (FN12)
MOREOVER, THE INVALIDATION OF THIS PARTICULAR FORM OF STATE REGULATION
DOES NOT RESULT IN A REGULATORY "GAP" OF THE SORT WHICH THE ACT WAS
DESIGNED TO PREVENT.  PHILLIPS PETROLEUM CO. V. WISCONSIN, SUPRA, AT
682-683.  FOR EXAMPLE, WE HAVE VERY RECENTLY RECOGNIZED THAT THE
COMMISSION CAN AND SHOULD TAKE APPROPRIATE ACCOUNT OF CERTAIN
CONSERVATION FACTORS IN CERTIFICATION PROCEEDINGS.  FEDERAL POWER
COMM'N V. TRANSCONTINENTAL GAS PIPE LINE CORP., SUPRA, AT 20-22.  SEE
ALSO MCGRATH, FEDERAL REGULATION OF PRODUCERS IN RELATION TO
CONSERVATION OF NATURAL GAS, 44 GEO. L.J. 676 (1956). 
                IV. 

ALTHOUGH WHAT WE HAVE SAID ANSWERS THE QUESTION FOR DECISION, IT IS
APPROPRIATE THAT WE COMMENT UPON A SUGGESTION ADVANCED BOTH BY
APPELLANT AND BY THE FEDERAL POWER COMMISSION AS AMICUS CURIAE.  THAT
SUGGESTION WAS THAT IF WE SHOULD HOLD, AS WE DO HOLD, THAT THE ORDERS
INVALIDLY INVADE THE FEDERAL REGULATORY JURISDICTION, THE JUDGMENT
SHOULD NOT BE REVERSED BUT THE CASE SHOULD RATHER BE REMANDED TO THE
KANSAS SUPREME COURT.  THE THEORY IS THAT THE KANSAS SUPREME COURT
MIGHT, IN LIGHT OF OUR HOLDING, NOW HOLD THAT THE ORDERS EFFECTED A
MODIFICATION OF THE REPUBLIC "A" CONTRACT SUCH AS TO PERMIT PERFORMANCE
OF THE CONTRACT THROUGH TAKINGS FROM THE REPUBLIC WELLS IN SUCH LOWER
AMOUNTS AS MAY BE NECESSARY TO ACHIEVE RATABILITY WITH THE TAKINGS FROM
THE WELLS OF APPELLANT'S OTHER PRODUCERS.  IN SHORT, THE SUGGESTION IS
THAT THE STATE COURT, IF AFFORDED THE OPPORTUNITY, MIGHT NOW SO
HARMONIZE THE REPUBLIC CONTRACT WITH THE COMMISSION'S ORDER THAT THERE
WOULD RESULT NO MEASURABLE EFFECT UPON INTERSTATE TRANSMISSIONS OR
SALES. 

WE REJECT THIS SUGGESTION FOR SEVERAL REASONS.  FIRST, BOTH OPINIONS
OF THE KANSAS SUPREME COURT SHOW THAT THE COURT CLEARLY RECOGNIZED THE
SUBSTANTIALITY OF THE FEDERAL QUESTION IN THE ASSERTED ENCROACHMENT OF
THE ORDERS UPON THE FEDERAL REGULATORY SCHEME.  THE COURT SQUARELY
DECIDED THE FEDERAL QUESTION IN FAVOR OF THE VALIDITY OF THE ORDERS. 
NEITHER OPINION RESTS THIS HOLDING ON AN INDEPENDENT NONFEDERAL GROUND
OF DECISION, AND THE APPELLANT AND THE COMMISSION, BY SUGGESTING A
REMAND, IN EFFECT CONCEDE AS MUCH.  NOR IS THERE ANY UNDECIDED ASPECT
OF THE CASE UPON WHICH THE KANSAS SUPREME COURT MIGHT STILL SUSTAIN THE
ORDERS UPON A NONFEDERAL GROUND.  CF. INDIANA EX REL. ANDERSON V.
BRAND, 303 U.S. 95.  WE AND THE KANSAS SUPREME COURT ARE THEREFORE IN
COMPLETE AGREEMENT THAT THE FEDERAL QUESTION AS TO THE VALIDITY OF THE
ORDERS CANNOT BE AVOIDED.  IT WOULD HARDLY BE SEEMLY FOR US TO ASK THE
KANSAS SUPREME COURT TO RECONSIDER ITS HOLDING BECAUSE WE HAVE REACHED
A DIFFERENT CONCLUSION ON THAT QUESTION. 

FURTHERMORE WE HAVE DIFFICULTY PERCEIVING HOW WE COULD PROPERLY
INVITE THE KANSAS SUPREME COURT TO INTERPRET THE REPUBLIC "A" CONTRACT
IN LIGHT OF THE ORDERS WITH A VIEW TO POSSIBLE ABATEMENT OF THE FEDERAL
QUESTION.  THAT CONTRACT WAS NOT IN ANY RESPECT MADE AN ISSUE IN THIS
LAWSUIT - INDEED, REPUBLIC IS NOT A PARTY; THE CONTROVERSY IS SOLELY
BETWEEN THE APPELLANT AND THE STATE AND CONCERNS ONLY THE VALIDITY OF
THE ORDERS.  TO INVITE CONSIDERATION BY THE KANSAS SUPREME COURT OF THE
POSSIBLE ACCOMMODATION OF THE CONTRACT WITH THE ORDERS SO AS TO AVOID
THE ASSERTED INVALID TRESPASS ON THE FEDERAL REGULATORY AREA, IS
NECESSARILY TO ASK THE KANSAS COURT TO DO ONE OF TWO THINGS:  (1) TO
DETERMINE WHETHER THE ORDERS CAN BE ACCOMMODATED WITH A CONTRACT WHICH
IS IN NO SENSE BEFORE THE COURT AND IN THE ABSENCE OF ONE OF THE
CONTRACTING PARTIES; OR (2) TO VACATE ITS HOLDING THAT THE ORDERS ARE
NOT INVALID FOR ENCROACHMENT ON THE FEDERAL DOMAIN, AND ABSTAIN FROM
DECIDING THAT QUESTION PENDING THE DECISION OF SOME ACTION WHICH MAY
SQUARELY PIT THE CONTRACT AGAINST THE ORDERS.   IN THE CIRCUMSTANCES,
TO FOLLOW THE SUGGESTION TO REMAND WOULD ON OUR PART BE HIGHLY
IRREGULAR. 

IN ANY EVENT THE SUGGESTION MISCONCEIVES THE TRUE NATURE OF THE
QUESTION WHICH THE KANSAS SUPREME COURT AND THIS COURT WERE CALLED UPON
TO DECIDE.  THE FEDERAL QUESTION DOES NOT ARISE FROM AN ASSERTED ACTUAL
AND IMMEDIATE CONFLICT BETWEEN THE FEDERAL AND STATE REGULATIONS.  THE
QUESTION IS WHETHER THE STATE ORDERS MAY STAND IN THE FACE OF THE
PERVASIVE SCOPE OF FEDERAL OCCUPATION OF THE FIELD.  CF. SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, SUPRA, AT 241-244.  INDEED, EVEN IF
THE ISSUE OF THE ACCOMMODATION OF THE REPUBLIC "A" CONTRACT WITH THE
ORDERS HAD BEEN ACTUALLY FRAMED IN THE LAWSUIT, THE MERE FACT THAT THE
KANSAS COURT MIGHT MAKE THE SUGGESTED ACCOMMODATION WOULD NOT
NECESSARILY PERMIT THE KANSAS COURT OR THIS COURT TO AVOID DECISIONS OF
THE FEDERAL QUESTION, SINCE EVEN THEN IT WOULD HAVE TO BE DETERMINED
WHETHER THE ORDERS INVALIDLY JEOPARDIZE THE NATURAL GAS ACT'S OBJECTIVE
OF UNIFORMITY.  SEE FEDERAL POWER COMM'N V. TRANSCONTINENTAL GAS PIPE
LINE CORP., SUPRA, AT 28.  FOR, IF THE FEDERAL QUESTION COULD BE
AVOIDED OR POSTPONED JUST SHORT OF ACTUAL COLLISION, BY AD HOC
ACCOMMODATION ON THE PART OF EVERY STATE, THEN THE SCOPE OF FEDERAL
REGULATORY POWER WOULD VARY IN ACCORDANCE WITH THE KALEIDOSCOPIC
VARIATIONS OF LOCAL CONTRACT LAW. 

THE JUDGMENTS ARE REVERSED AND THE CAUSES ARE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  THE GENERAL ORDER OF THE COMMISSION, WHICH WAS EMBODIED IN RULE
82-2-219, PROVIDED: 

RATABLE PRODUCTION OF GAS FROM COMMON SOURCE OF SUPPLY. 

"IN EACH COMMON SOURCE OF SUPPLY UNDER PRORATION BY THIS COMMISSION,
EACH PURCHASER SHALL TAKE GAS IN PROPORTION TO THE ALLOWABLES FROM ALL
THE WELLS TO WHICH IT IS CONNECTED AND SHALL MAINTAIN ALL SUCH WELLS IN
SUBSTANTIALLY THE SAME PROPORTIONATE STATUS AS TO OVERPRODUCTION OR
UNDERPRODUCTION; PROVIDED, HOWEVER, THIS RULE SHALL NOT APPLY WHEN A
DIFFERENCE IN PROPORTIONATE STATUS RESULTS FROM THE INABILITY OF A WELL
TO PRODUCE PROPORTIONATELY WITH OTHER WELLS CONNECTED TO THE PURCHASER
(AUTHORIZED BY G.S. 1959, SUPP. 55-703; EFFECTIVE FEBRUARY 8, 1960)." 

THIS ORDER, DIRECTED GENERALLY AT ALL PURCHASERS WITHIN THE
COMMISSION'S JURISDICTION, SUPERSEDED AN ORDER OF OCTOBER 7, 1959,
WHICH SPECIFICALLY REQUIRED APPELLANT "TO TAKE GAS RATABLY FROM ALL
WELLS TO WHICH IT IS CONNECTED IN THE KANSAS HUGOTON GAS FIELD."  WHEN
THE GENERAL ORDER WAS PROMULGATED, THE SPECIFIC ORDER WAS RESCINDED. 
THE KANSAS SUPREME COURT, HOWEVER, CONSIDERED THE VALIDITY OF BOTH
ORDERS AS THOUGH BOTH WERE STILL IN FORCE.  FOR PURPOSES OF OUR
JURISDICTION AND CONSIDERATION OF THE MERITS, IT MAKES NO DIFFERENCE
WHETHER THE SPECIFIC ORDER SURVIVED, FOR THE SUPERSEDING GENERAL ORDER
WAS NO LESS CLEARLY DIRECTED AT THE APPELLANT. 

FN2  FOR A HISTORY OF THE DISCOVERY AND DEVELOPMENT OF THE HUGOTON
FIELD, AND THE KANSAS COMMISSION'S EARLIER EFFORTS TO INSURE
CORRELATIVE RIGHTS IN, AND TO REGULATE THE TAKING OF GAS FROM, THAT
FIELD, SEE GENERALLY AMERICAN BAR ASSOCIATION SECTION OF MINERAL LAW,
CONSERVATION OF OIL AND GAS - A LEGAL HISTORY, 1948 (1949), 165-183. 

FN3  THE ORIGINAL REPUBLIC "A" CONTRACT, AS AMENDED, FIXED THE
MINIMUM-TAKE REQUIREMENTS IN TERMS OF A PERCENTAGE OF APPELLANT'S
NATURAL GAS NEEDS FOR A PARTICULAR DISTRICT WHICH IT SERVED FROM THE
HUGOTON FIELD.  A DECISION OF THE KANSAS SUPREME COURT IN 1952 MODIFIED
THAT TERM OF THE CONTRACT BY HOLDING THAT APPELLANT'S TAKES FROM
PARTICULAR REPUBLIC WELLS COULD NOT EXCEED THE PRODUCTION ALLOWABLES
SET BY THE COMMISSION FOR THOSE WELLS, REGARDLESS OF WHETHER THE TOTAL
ALLOWABLES MIGHT BE LOWER THAN THE PERCENTAGE STIPULATED BY THE
CONTRACT.  NORTHERN NATURAL GAS CO. V. REPUBLIC NATURAL GAS CO., 172
KAN. 450, 241 P.2D 708. 

FN4  THE SUBSTANTIAL UNDERAGES IN APPELLANT'S PURCHASES WERE
ATTRIBUTED TO TWO FACTORS: FIRST, THE RATE OF INCREASE IN THE
ALLOWABLES FOR THE WELLS FROM WHICH APPELLANT WAS TAKING HAD EXCEEDED
THE INCREASES IN APPELLANT'S REQUIREMENTS FROM THE HUGOTON FIELD; AND
SECOND, APPELLANT'S PROJECTED EXPANSION OF ITS SYSTEM HAD BEEN DELAYED
UNEXPECTEDLY BY FAILURE TO SECURE THE REQUISITE CERTIFICATES OF
CONVENIENCE AND NECESSITY FROM THE FEDERAL POWER COMMISSION.  NEITHER
FACTOR IS MATERIAL TO THE QUESTIONS PRESENTED BY THIS APPEAL. 

FN5  THE STATUTE, AS AMENDED IN 1959, IS KAN. GEN. STAT., 1949 (SUPP.
1959), SEC.  55-703, CAPTIONED "PRODUCTION REGULATIONS; RULES AND
FORMULAS."  THE TERMS OF THE STATUTE SPEAK OF "TAKING" RATHER THAN
"PURCHASING" OF NATURAL GAS; THE COMMISSION HAS DECREED THAT THE TWO
TERMS ARE SYNONYMOUS.  IT WAS THE VIEW OF THE DISSENTING JUDGE IN THE
COURT BELOW, HOWEVER, THAT THE "TAKING" COMPREHENDED BY THE STATUTE,
NOWHERE DEFINED IN THE STATUTE ITSELF, REFERRED ONLY TO PRODUCTION SO
THAT THE COMMISSION LACKED AUTHORITY UNDER STATE LAW TO REGULATE
PURCHASING IN THE MANNER OF THE PRESENT ORDERS.  SEE 188 KAN. 355, 365,
362 P.2D 599, 606. 

FN6  THE OPERATIVE CLAUSE OF THIS ORDER DESIGNATED THE ORDER AS THE
BASIC GUIDE FOR "THE PRODUCTION OF NATURAL GAS" FROM THE HUGOTON
FIELD.  NO PROVISIONS OF THE ORDER IMPOSED ENFORCEABLE OBLIGATIONS OR
SANCTIONS UPON PURCHASERS, ALTHOUGH ONE SECTION ADMONISHED, "  ...
PURCHASERS  ... FROM ANY WELL, SHALL ENDEAVOR TO LIMIT THEIR TAKES OF
GAS TO THE QUANTITIES FIXED IN THE SCHEDULE AS THE ALLOWABLE PRODUCTION
FOR SUCH WELL  ...  ." 

FN7  PENDING IN A KANSAS TRIAL COURT ARE TWO SUITS BY REPUBLIC
AGAINST APPELLANT TO RECOVER DAMAGES FOR APPELLANT'S FAILURE TO
PURCHASE GAS IN THE QUANTITIES REQUIRED BY THE CONTRACTS. 

FN8  THUS WE HAVE NO NEED TO CONSIDER THE EFFECT OF THE "PRODUCTION
OR GATHERING" EXEMPTION UPON RATABLE-TAKE ORDERS DIRECTED EXCLUSIVELY
AT INDEPENDENT PRODUCERS OF NATURAL GAS.  FOR CONTRASTING VIEWS ON THAT
QUESTION, COMPARE KELLY, GAS PRORATION AND RATABLE TAKING IN TEXAS, 19
TEX. BAR J. 763, 797 (1956), WITH COMMENT, RATABLE TAKING OF NATURAL
GAS, 11 S.W.L.J. 358, 360-361 (1957). 

FN9  PERSISTENT EFFORTS TO NARROW THE SCOPE OF THE BROADER EXCLUSIVE
FEDERAL JURISDICTION CONFERRED BY THE STATUTE HAVE BEEN UNAVAILING. 
SEE, INTER ALIA, H.R. 4051, 80TH CONG., 1ST SESS.; H.R. 4099, 80TH
CONG., 1ST SESS.; H.R. 1758, 81ST CONG., 1ST SESS.; AND S. 1498, 81ST
CONG., 1ST SESS.  "ATTEMPTS TO WEAKEN THIS PROTECTION (OF CONSUMERS
AGAINST EXPLOITATION AT THE HANDS OF NATURAL-GAS COMPANIES) BY
AMENDATORY LEGISLATION EXEMPTING INDEPENDENT NATURAL-GAS PRODUCERS FROM
FEDERAL REGULATION HAVE REPEATEDLY FAILED, AND WE REFUSE TO ACHIEVE THE
SAME RESULT BY A STRAINED INTERPRETATION OF THE EXISTING STATUTORY
LANGUAGE."  PHILLIPS PETROLEUM CO. V. WISCONSIN, SUPRA, AT 685. 

FN10  OUR DECISIONS IN CITIES SERVICE GAS CO. V. PEERLESS OIL & GAS
CO., 340 U.S. 179, AND PHILLIPS PETROLEUM CO. V. OKLAHOMA, 340 U.S.
190, ARE NOT CONTRARY.  "IN THOSE CASES WE WERE DEALING WITH
CONSTITUTIONAL QUESTIONS AND NOT THE CONSTRUCTION OF THE NATURAL GAS
ACT."  NATURAL GAS PIPELINE CO. V. PANOMA CORP., SUPRA, AT 45. 

FN11  SEE AMERICAN BAR ASSOCIATION SECTION OF MINERAL AND NATURAL
RESOURCES LAW, CONSERVATION OF OIL AND GAS - A LEGAL HISTORY, 1958
(1960), 342. 

FN12  SEE, E.G., COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMM'N,
SUPRA, AT 602-603; CF. PATTERSON V. STANOLIND OIL & GAS CO., SUPRA.
THE AVAILABILITY OF REGULATORY ALTERNATIVES, PARTICULARLY IN THE FORM
OF PRORATION AND SIMILAR ORDERS DIRECTED AT PRODUCERS, HAS BEEN MUCH
DISCUSSED.  SEE THE VIEW OF A MEMBER OF THE KANSAS CORPORATION
COMMISSION, BYRD, CONTRACTUAL AND PROPERTY RIGHTS AS AFFECTED BY
CONSERVATION LAWS AND REGULATIONS, TENTH ANNUAL INSTITUTE ON OIL AND
GAS LAW AND TAXATION, 1, 6-7 (1959); SEE ALSO AMERICAN BAR ASSOCIATION
1948 (1949), 170-171; KULP, OIL AND GAS RIGHTS (1954), SEC. 10.100; 1
KUNTZ, TREATISE ON THE LAW OF OIL AND GAS (1962), SEC. 4.7. 

IT HAS BEEN URGED THAT AS A PRACTICAL MATTER RESTRICTIONS UPON
PURCHASERS MORE EFFECTIVELY AND EASILY ACHIEVE RATABLE TAKING, SEE 1A
SUMMERS, OIL AND GAS (1954), 139 AND N. 9.30.  ON THE CONTRARY, IT HAS
ALSO BEEN ARGUED THAT THE VERY OBJECTIVES SOUGHT TO BE ACHIEVED HERE
MAY BE ACHIEVED THROUGH RATABLE PRODUCTION ORDERS, COMMENT, RATABLE
TAKING OF NATURAL GAS, 11 S.W.L.J. 358, 359, 362 (1957).  WE NOTE TOO
THE SUGGESTION OF A WITNESS IN THE PROCEEDING BELOW THAT THE RESULT
SOUGHT BY THE ORDERS HEREIN MIGHT HAVE BEEN ACHIEVED BY REQUIRING
REPUBLIC TO DECREASE PRODUCTION FROM ITS WELLS RATHER THAN BY REQUIRING
APPELLANT TO INCREASE ITS PURCHASES FROM THOSE WELLS.  R. 33.  THIS
APPARENTLY WAS ALSO THE VIEW OF THE DISSENTING JUDGE BELOW, 188 KAN.,
AT 365, 362 P.2D, AT 606.  SEE, AS TO THE OBLIGATION OF THE STATES TO
PURSUE ALTERNATIVES WHICH AVOID INTERFERENCE WITH FEDERALLY PROTECTED
INTERSTATE COMMERCE, DEAN MILK CO. V. MADISON, 340 U.S. 349, 354-356. 

THERE IS NO OCCASION TO CONSIDER APPELLANT'S FURTHER ARGUMENT THAT
THE KANSAS COMMISSION'S ORDERS WERE TAINTED BY AN IMPROPER MOTIVE, THAT
IS, TO REQUIRE OVERPRODUCTION OF KANSAS HUGOTON WELLS IN ORDER TO
PREVENT DISADVANTAGEOUS DRAINAGE TO TEXAS AND OKLAHOMA, WHICH SHARE THE
HUGOTON FIELD WITH KANSAS.  THE RELEVANCY OF MOTIVE TO THE VALIDITY OF
SUCH REGULATIONS HAS BEEN QUESTIONED, STEPHENSON V. BINFORD, 287 U.S.
251, 276.  SEE, HOWEVER, THOMPSON V. CONSOLIDATED GAS UTILITIES CORP.,
300 U.S. 55, 69-70, WHERE THE COURT INVALIDATED A STATE PRORATION ORDER
"SHOWN TO BEAR NO REASONABLE RELATION EITHER TO THE PREVENTION OF WASTE
OR THE PROTECTION OF CORRELATIVE RIGHTS  ...  ." 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART AND MR. JUSTICE GOLDBERG
JOIN, DISSENTING. 

THE CONFLICT ASSERTED BETWEEN THE KANSAS COMMISSION'S "RATABLE TAKE"
ORDERS AND THE AUTHORITY OF THE FEDERAL POWER COMMISSION IS THAT BY
VIRTUE OF THE COMBINED EFFECT OF SUCH ORDERS AND THE MINIMUM "TAKE OR
PAY" PROVISIONS OF NORTHERN'S REPUBLIC "A" CONTRACT THE CONSUMER PRICE
OF NORTHERN'S GAS SOLD IN INTERSTATE COMMERCE WILL BE FORCED UP,
THEREBY POTENTIALLY EMBARRASSING THE FEDERAL POWER COMMISSION'S
EFFECTIVE EXERCISE OF ITS AUTHORITY OVER SUCH PRICES.  (FN1)  THE
PREMISE OF THIS ALLEGED CONFLICT IS OF COURSE THAT NORTHERN'S REPUBLIC
"A" CONTRACTUAL OBLIGATIONS REMAIN UNAFFECTED BY THE KANSAS
COMMISSION'S RATABLE TAKE ORDERS.    THE APPELLEE COMMISSION SAYS THAT
EVEN IF ALL THIS BE CORRECT ITS ORDERS ARE NONETHELESS VALID.  THE
FEDERAL POWER COMMISSION AS AMICUS, WHILE DENYING THIS CONCLUSION,
SAYS, HOWEVER, THAT NO SIGNIFICANT CONFLICT WITH FEDERAL AUTHORITY
WOULD ARISE IF THE EFFECT OF THE STATE COMMISSION'S ORDERS IS TO
ABROGATE TAKE OR PAY PROVISIONS SUCH AS THOSE CONTAINED IN THE REPUBLIC
"A" CONTRACT, AND SUGGESTS THAT THE CASE BE REMANDED TO THE KANSAS
SUPREME COURT FOR DETERMINATION OF THAT QUESTION OF STATE LAW.  THIS
WOULD OBVIATE THE NECESSITY OF OUR DECIDING AT THIS TIME ANY QUESTIONS
OF FEDERAL LAW. 

WITHOUT INTIMATING ANY VIEW UPON THE FEDERAL QUESTIONS, (FN2) IT
SEEMS TO ME THAT THE FEDERAL POWER COMMISSION'S SUGGESTION IS AN
OBVIOUSLY SENSIBLE ONE.  CF. NORTHERN NATURAL GAS CO. V. REPUBLIC
NATURAL GAS CO., 172 KAN. 450, 241 P.2D 708.  THE COURT'S OPINION, AS I
UNDERSTAND IT, GIVES THREE PRINCIPAL REASONS FOR REFUSING TO REMAND:
(1) THE STATE COMMISSION'S ORDERS ARE IN ANY EVENT INVALID PER SE
BECAUSE THEY BEAR UPON PURHCASERS AND NOT PRODUCERS OF NATURAL GAS; (2)
EVEN IF NORTHERN WERE NO LONGER BOUND BY THE QUANTITY OBLIGATIONS OF
ITS REPUBLIC "A" CONTRACT, THE KANSAS ORDERS WOULD STILL BE INVALID
BECAUSE THEY REQUIRE KANSAS PURCHASERS WHO PREVIOUSLY TOOK GAS
UNRATABLY TO READJUST THEIR PURCHASING PATTERNS, WHICH MIGHT POSSIBLY
AFFECT ULTIMATE CONSUMER PRICES; AND (3) THE KANSAS SUPREME COURT IN
FACT REACHED AND DECIDED THE FEDERAL QUESTIONS AND, APART FROM THAT,
THERE ARE OTHER REASONS THAT WOULD MAKE REMAND A "HIGHLY IRREGULAR"
COURSE.  I CAN SEE LITTLE OR NOTHING IN ANY OF THESE OBJECTIONS TO
REMAND. 

                            I. 

THAT THE KANSAS ORDERS ARE DIRECTED AT PURCHASERS SHOULD NOT BE
ALLOWED TO OBSCURE THEIR TRUE NATURE.  THE PRODUCTION OF NATURAL GAS
AND ITS MOVEMENT INTO INTERSTATE CHANNELS CONSTITUTE ONE AND THE SAME
PHYSICAL OPERATION.  THUS THE KANSAS ORDERS LIMITING THE VOLUME OF GAS
A PIPELINE MAY PURCHASE FROM A GIVEN WELL ARE TANTAMOUNT TO A
LIMITATION ON THE PRODUCTION OF THAT WELL.  INDEED AN ORDER DIRECTED TO
THE PURCHASER OF THE GAS RATHER THAN TO THE PRODUCER WOULD SEEM TO BE
THE MOST FEASIBLE METHOD OF PROVIDING FOR RATABLE TAKING, BECAUSE IT IS
THE PURCHASER ALONE WHO HAS A FIRST-HAND KNOWLEDGE AS TO WHETHER HIS
TAKES FROM EACH OF HIS CONNECTIONS IN THE FIELD ARE SUCH THAT
PRODUCTION OF THE WELLS IS RATABLE.  (FN3)  AN ORDER ADDRESSED SIMPLY
TO PRODUCERS REQUIRING EACH ONE TO PRODUCE RATABLY WITH OTHERS WITH
WHOSE ACTIVITIES IT IS UNFAMILIAR AND OVER WHOSE ACTIVITIES IT HAS NO
CONTROL WOULD CREATE OBVIOUS ADMINISTRATIVE PROBLEMS.  (FN4) 

THERE IS THUS NO WARRANT FOR CONCLUDING THAT JUST BECAUSE THE KANSAS
ORDERS READ "PURCHASER" RATHER THAN "PRODUCER" THEY ARE AN ATTEMPT TO
REGULATE THE INTERSTATE SALE OF NATURAL GAS.  THEIR PURPOSE AND EFFECT
ARE TO LIMIT PRODUCTION - THE PHYSICAL ACT OF DRAWING GAS FROM THE
EARTH.  TO THE EXTENT, THEN, THAT APPELLANT'S OPERATIONS CONTROL THE
VOLUME OF GAS PRODUCED, THEY INVOLVE "PRODUCTION AND GATHERING, IN THE
SENSE THAT THOSE TERMS ARE USED IN THE SEC. 1(B)" EXEMPTION OF THE
NATURAL GAS ACT.  PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672,
678. 

BUT REGARDLESS OF WHETHER THE SEC. 1(B) EXEMPTION IS APPLICABLE HERE,
THE ORDERS DO NOT NECESSARILY INVADE AREAS RESERVED TO EXCLUSIVE
FEDERAL AUTHORITY.  (FN5)  THE MERE FACT THAT THEY ARE DIRECTED AT
PURCHASERS DOES NOT, OF ITSELF, INTERFERE WITH THE FEDERAL POWER
COMMISSION'S FUNCTIONS OF CERTIFICATION (SEC. 7 OF THE ACT) OR RATE
REGULATION (SECS. 4 AND 5 OF THE ACT).  (FN6)  AND I FIND IT HARD TO
RECONCILE THE COURT'S HOLDING ON THIS SCORE WITH ITS STATEMENT THAT
"CONSERVATION MEASURES AIMED DIRECTLY AT INTERSTATE PURCHASERS  ...
CANNOT BE SUSTAINED WHEN THEY THREATEN, AS HERE, THE ACHIEVEMENT OF THE
COMPREHENSIVE SCHEME OF FEDERAL REGULATION."  ANTE, P. 94.   AS WILL BE
SHOWN (INFRA, PP. 103-106), THIS THREAT, IF IT EXISTS AT ALL IN THIS
CASE, IS NO DIFFERENT FROM THAT FLOWING FROM OTHER VALID CONSERVATION
MEASURES. 

THE FEDERAL POWER COMMISSION ITSELF ACKNOWLEDGES THAT IF THE KANSAS
ORDERS RELEASE APPELLANT AND OTHERS FROM CONTRACTUAL OBLIGATIONS OF THE
SORT IN QUESTION HERE, THEN SUCH ORDERS WOULD ENTAIL NO SIGNIFICANT
CONFLICT WITH FEDERAL AUTHORITY.  THE COMMISSION STATES:  "IN THAT
EVENT, DESPITE THE FACT THAT THE KANSAS REGULATION IS IN TERMS
ADDRESSED TO INTERSTATE PIPELINE COMPANIES RATHER THAN TO KANSAS
PRODUCERS, WE WOULD NOT URGE THAT IT SO IMPINGED UPON MATTERS OF
NATIONAL, AS OPPOSED TO LOCAL, CONCERN, OR THAT IT SO INTERFERED WITH
THE REGULATORY FUNCTIONS AND PURPOSES OF THE FEDERAL POWER COMMISSION
UNDER THE NATURAL GAS ACT, AS TO REQUIRE ITS INVALIDATION UNDER THE
SUPREMACY CLAUSE."  (FN7)  FOR THE FURTHER REASONS THAT WILL NOW BE
DISCUSSED, I THINK THIS IS A PERFECTLY SOUND POSITION. 

               II. 

OF COURSE A REMAND IS UNNECESSARY IF, AS IN THE COURT'S VIEW, THE
KANSAS COMMISSION'S ORDERS ARE INVALID EVEN THOUGH APPELLANT IS DEEMED
TO BE NO LONGER BOUND BY THE TAKE OR PAY PROVISIONS OF THE REPUBLIC
CONTRACT.  BUT THE REMOTE POSSIBILITY OF AN ADVERSE EFFECT ON THE COST
STRUCTURES OF KANSAS PURCHASERS FALLS FAR SHORT OF ESTABLISHING SUCH
INVALIDITY. 

THE RATABLE TAKE ORDERS HERE WERE INTENDED AS CONSERVATION MEASURES
(FN8) - TO PROTECT THE CORRELATIVE RIGHTS OF PRODUCERS TAKING GAS FROM
A COMMON SOURCE OF SUPPLY BY PREVENTING DRAINAGE FROM UNDERPRODUCED
WELLS TO OVERPRODUCED WELLS.  (FN9)  IT HAS ALWAYS BEEN RECOGNIZED THAT
THE STATES POSSESS THE POWER TO CONSERVE SCARCE RESOURCES SUCH AS
NATURAL GAS AND TO PREVENT UNFAIR AND DISCRIMINATORY PRODUCTION OF THIS
RESOURCE BY SOME WELLS AT THE EXPENSE OF OTHERS.  SEE, E.G., PATTERSON
V. STANOLIND OIL & GAS CO., 305 U.S. 376; LINDSLEY V. NATURAL CARBONIC
GAS CO., 220 U.S. 61; OHIO OIL CO. V. INDIANA, 177 U.S. 190.  IT IS
DIFFICULT TO IMAGINE ANY EXERCISE OF THIS CONSERVATION POWER THAT WOULD
NOT CARRY WITH IT THE POSSIBILITY OF AFFECTING THE COSTS INCURRED BY
THOSE WHO PURCHASE GAS FROM PRODUCERS.  REGULATIONS REQUIRING THE
CASING OF WELLS, PROHIBITING THE USE OF PUMPS, RESTRICTING PRODUCTION
TO A CERTAIN PERCENT OF A WELL'S "OPEN FLOW," IMPOSING A PARTICULAR GAS
OIL RATIO, CONTROLLING DRILLING OPERATIONS AND PIPELINE PRESSURE,
PRESCRIBING THE PERMISSIBLE SPACING OF WELLS, AND ENFORCING POOLING OR
UNITIZATION MAY REDUCE THE AMOUNT OF GAS AVAILABLE FOR SALE BY A
PARTICULAR PRODUCER (AT LEAST IN THE SHORT RUN) AND THUS FORCE A
PURCHASER TO BUY FROM IT OR SOMEONE ELSE PROBABLY AT GREATER COST.  YET
IT HAS NEVER BEEN SUGGESTED THAT SUCH STATE MEASURES ARE FOR THAT
REASON INVALID. 

INDEED, THE MOST DIRECT INTERFERENCE WITH THE AVAILABILITY OF GAS FOR
INTERSTATE SALE IS THE "ALLOWABLE" ORDER.  IT PLACES A CEILING ON THE
AMOUNT OF GAS THAT MAY BE PRODUCED BY A PARTICULAR WELL DURING A GIVEN
PERIOD OF TIME AND INEVITABLY MAKES PIPELINES SPREAD THEIR DEMAND AMONG
MANY WELLS.  OBVIOUSLY ITS POSSIBLE EFFECT ON COST IS PRECISELY THE
SAME AS THAT WHICH MAY BE CAUSED BY A RATABLE TAKE ORDER, FOR THE TWO
ORDERS ARE MERELY VARIATIONS OF THE SAME REGULATORY MEASURE; BOTH ARE
DESIGNED TO PREVENT THE DISPROPORTIONATE TAKING OF GAS FROM SOME WELLS
TO THE DISADVANTAGE OF OTHERS. 

IN CHAMPLIN REFINING CO. V. CORPORATION COMM'N, 286 U.S. 210 (1932),
THIS COURT SUSTAINED, AGAINST A CHALLENGE UNDER THE COMMERCE CLAUSE, A
STATE ALLOWABLE ORDER.  SINCE THE STATES HAD THE POWER TO ISSUE SUCH AN
ORDER AT THE TIME THE NATURAL GAS ACT WAS PASSED, NOTHING IN THAT ACT
CAN NOW BE CONSIDERED TO WITHDRAW IT.  THIS IS SO BECAUSE IT IS BEYOND
DISPUTE THAT WHEN CONGRESS ENACTED THE NATURAL GAS ACT IN 1938 IT DID
NOT INTENT TO DEPRIVE THE STATES OF ANY REGULATORY POWERS THEY WERE
THEN DEEMED TO POSSESS UNDER THE CONSTITUTION.  RATHER, THE ACT WAS
INTENDED ONLY TO FILL THE "GAP ...  THOUGHT TO EXIST AT THE TIME THE
NATURAL GAS ACT WAS PASSED" BY PROVIDING FOR FEDERAL REGULATION OF
THOSE ASPECTS OF THE NATURAL GAS BUSINESS THAT THE STATES WERE AT THAT
TIME BELIEVED TO BE CONSTITUTIONALLY INCAPABLE OF REGULATING.  PHILLIPS
PETROLEUM CO. V. WISCONSIN, 347 U.S. 672, 684, 685-687.  AS WAS
SPECIFICALLY STATED IN THE HOUSE COMMITTEE REPORT, THE ACT "TAKES NO
AUTHORITY FROM STATE COMMISSIONS, AND IS SO DRAWN AS TO COMPLEMENT AND
IN NO MANNER USURP STATE REGULATORY AUTHORITY."  H.R. REP. NO. 709,
75TH CONG., 1ST SESS., P. 2.  (FN10) 

IF AN ALLOWABLE ORDER IS NOW VALID, WHAT IS THE DISTINCTION BETWEEN
SUCH AN ORDER AND THE RATABLE TAKE ORDERS IN THE PRESENT CASE?  THE
COURT POINTS TO NO DIFFERENCE IN TERMS OF EFFECT ON COST STRUCTURE, BUT
ONLY TO THE FACT THAT THE ORDERS HERE ARE DIRECTED AT PURCHASERS AND
NOT PRODUCERS.  FOR REASONS ALREADY DISCUSSED, SUPRA, PP. 100-102, THIS
DIFFERENCE IS ILLUSORY. 

QUITE APART FROM THE ABSENCE OF ANY SIGNIFICANT DIFFERENCE BETWEEN
THE POSSIBLE GENERAL COST RAMIFICATIONS OF AN ALLOWABLE AND A RATABLE
TAKE ORDER, THE VERY FACTS OF THE CASE BEFORE US DEMONSTRATE THE FOLLY
OF DETERMINING WHETHER OR NOT THE JURISDICTION OF THE FEDERAL POWER
COMMISSION HAS BEEN INVADED ON THE BASIS OF GENERAL POSSIBILITIES
UNSUPPORTED BY SPECIFIC DATA.  APPELLANT IS PAYING A HIGHER PRICE FOR
GAS TO REPUBLIC THAN TO ANY OTHER PRODUCER IN THE KANSAS HUGOTON
FIELD.  IF APPELLANT COULD REDUCE ITS TAKE FROM REPUBLIC WELLS WITHOUT
CONTRACTUAL LIABILITY, THE OVER-ALL COST OF ITS GAS PURCHASES WOULD IN
ALL LIKELIHOOD DECREASE.  SURELY SUCH A BENEFICIAL EFFECT ON
APPELLANT'S COST STRUCTURE IS NOT INCONSISTENT WITH THE PURPOSES OF THE
NATURAL GAS ACT.  AND WE HAVE NO WAY OF KNOWING THE EXTENT TO WHICH THE
SAME IS TRUE OF OTHER KANSAS PURCHASERS.  THE LURKING DANGER OF
COLLISION WITH FEDERAL REGULATION THAT THE COURT FEARS MAY BE
COMPLETELY NONEXISTENT.  YET ON THIS INSECURE FOUNDATION THE COURT
BUILDS A RULE THAT, IF CONSISTENTLY APPLIED, MAY WELL DESTROY THE
CONSERVATION POWERS OF THE STATES.  AND THIS IN THE NAME OF AN ACT
EXPRESSLY INTENDED TO PRESERVE STATE POWERS. 

                                  III. 

THE COURT'S REMAINING ARGUMENTS AGAINST REMAND ARE EQUALLY
UNSATISFACTORY. 

IT IS SAID THAT THE KANSAS SUPREME COURT DID NOT REST ITS DECISION ON
A STATE GROUND (THE ABROGATION, BY VIRTUE OF THE COMMISSION'S ORDERS,
OF NORTHERN'S TAKE OR PAY OBLIGATIONS UNDER THE REPUBLIC CONTRACT), BUT
DECIDED THE FEDERAL QUESTIONS.  WHATEVER MAY HAVE PROMPTED THE STATE
COURT TO THIS COURSE - PERHAPS A DESIRE TO OBTAIN FROM THIS COURT A
BROAD DECISION ON THE FEDERAL QUESTION OR A MISTAKEN BELIEF AS TO THE
IRRELEVANCY OF THE CONTRACT QUESTION TO THE EXISTENCE OF THE STATE
POWER NOW QUESTIONED - THIS SURELY DOES NOT CONSTRICT THE GROUNDS OF
OUR ADJUDICATION OF THE CASE.  IT IS FAMILIAR PRACTICE FOR THIS COURT
TO REFUSE TO REACH FEDERAL CONSTITUTIONAL QUESTIONS ON WHICH THE STATE
COURTS HAVE PREDICATED DECISION.  IT IS ENOUGH TO REFER TO THE LANDMARK
CONCURRING OPINION OF MR. JUSTICE BRANDEIS IN ASHWANDER V. TENNESSEE
VALLEY AUTHORITY, 297 U.S. 288, 346-348, ENUMERATING PRINCIPLES
DESIGNED TO AVOID THE UNNECESSARY ADJUDICATION OF CONSTITUTIONAL
QUESTIONS - A TENET OF ADJUDICATION TO WHICH THIS COURT HAS ALWAYS
STRICTLY ADHERED. 

A REMAND, IT IS ALSO SAID, WOULD BE A "HIGHLY IRREGULAR" STEP FOR THE
FURTHER REASONS THAT THE EFFECT OF THE STATE COMMISSION'S ORDERS ON THE
REPUBLIC "A" CONTRACT WAS NOT DRAWN IN QUESTION IN THIS SUIT AND THE
REPUBLIC COMPANY ITSELF WAS NOT A PARTY TO THE LITIGATION.  HOWEVER, IN
LIGHT OF WHAT HAS ALREADY BEEN SAID THE GERMANENESS OF THAT CONTRACT
ISSUE TO THE QUESTION OF THE VALIDITY OF STATE POWER IN THE PREMISES IS
APPARENT.  AND APART FROM THE PRESUMED AVAILABILITY OF STATE PROCEDURES
FOR THE VOUCHING INTO THE CASE OF THE REPUBLIC COMPANY, WE ARE INFORMED
BY THE FEDERAL POWER COMMISSION THAT THERE IS NOW PENDING IN THE STATE
COURTS ANOTHER CASE AGAINST NORTHERN, TO WHICH REPUBLIC IS A PARTY,
THAT INVOLVES THE CONTINUING VALIDITY OF THE TAKE OR PAY PROVISIONS OF
THE "A" CONTRACT.  (FN11)  HENCE, IF NECESSARY, THE KANSAS SUPREME
COURT COULD ON REMAND OF THE PRESENT CASE HOLD ITS HAND PENDING
RESOLUTION OF THE CONTRACT ISSUE IN THE OTHER LITIGATION. 

IN SHORT, I CANNOT UNDERSTAND WHY THIS COURT SHOULD NOT REMAND FOR
DETERMINATION OF A STATE LAW ISSUE THAT MAY DISPOSE OF THIS CASE, AS
THE COURT HAS DONE IN OTHER COMPARABLE INSTANCES.  SEE, E.G., LEITER
MINERALS, INC., V. UNITED STATES, 352 U.S. 220, 228-230; AQUILINO V.
UNITED STATES, 363 U.S. 509, 515-516. 

I WOULD VACATE THE JUDGMENTS OF THE SUPREME COURT OF KANSAS AND
REMAND THE CASE TO THAT COURT FOR A DETERMINATION, IN ACCORDANCE WITH
KANSAS PROCEDURES, AS TO THE EFFECT OF THE STATE COMMISSION'S ORDERS ON
THE NORTHERN-REPUBLIC "A" CONTRACT. 

FN1  THESE EFFECTS, AS CLAIMED BY THE APPELLANT AND THE FEDERAL POWER
COMMISSION, ARE SUMMARIZED IN THE APPELLEE'S PRINCIPAL BRIEF ON THIS
APPEAL (P. 26) AS FOLLOWS: "TO COMPLY WITH THE KANSAS ORDERS BY TAKING
RATABLY IN THE KANSAS HUGOTON FIELD, APPELLANT, IT IS ARGUED, WOULD
HAVE TO DO ONE OF TWO THINGS:  (1) INCREASE ITS TAKES FROM ITS OTHER
CONNECTIONS IN THE FIELD UNTIL THEY BECOME RATABLE WITH ITS TAKES FROM
THE REPUBLIC A WELLS, OR (2) CONTINUE TO TAKE THE SAME AMOUNT FROM THE
FIELD AS A WHOLE BUT REALLOCATE ITS TAKES SO AS TO MAKE THEM RATABLE BY
DECREASING TAKES FROM REPUBLIC TO A FIGURE BELOW THE AMOUNT PROVIDED BY
THE CONTRACT AND INCREASING TAKES FROM OTHER WELLS.  IT IS CONTENDED
THAT THE FIRST OF THESE COURSES WOULD REQUIRE APPELLANT EITHER TO TAKE
FROM THE KANSAS HUGOTON FIELD GAS WHICH IT DOES NOT WANT AND FOR WHICH
IT HAS NO PRESENT MARKET OR TO REDUCE ITS TAKES IN OTHER FIELDS AND
THEREBY INCUR CONTRACTUAL LIABILITY TO PRODUCERS IN THOSE FIELDS, AND
THAT THE SECOND WOULD RESULT IN CONTRACTUAL LIABILITY TO REPUBLIC. 
EITHER COURSE, IT IS ARGUED, WILL NECESSARILY CAUSE AN INCREASE IN THE
PRICE OF GAS TO THE ULTIMATE CONSUMER, AND FOR THIS REASON THE KANSAS
ORDERS ARE INCONSISTENT WITH THE NATURAL GAS ACT."    FN2  AT THE 1958
TERM THE COURT DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION AN
APPEAL PRESENTING SUBSTANTIALLY THE SAME BROAD FEDERAL QUESTION WHICH
THE COURT DECIDES TODAY.  SEE PERMIAN BASIN PIPELINE CO. V. RAILROAD
COMM'N, 358 U.S. 37 (REPORTED BELOW AT 302 S.W.2D 238; AND SEE THE
JURISDICTIONAL STATEMENT IN THIS COURT, NO. 64, OCT. TERM, 1958). 
FN3  MOST OF THE MORE IMPORTANT OIL AND GAS PRODUCING STATES HAVE LONG
HAD STATUTES PROVIDING FOR RATABLE TAKING BY PURCHASERS TO PROTECT
CORRELATIVE RIGHTS.  SEE TEX.  STAT. ANN., TIT. 102, ART. 6049A, SECS.
8, 8A (ENACTED IN 1931); OKLA. STAT. ANN., TIT.  52, SEC. 240 (ENACTED
IN 1915); LA. REV. STAT., 1950, TIT. 30, SECS. 41-46 (ENACTED IN
1918). 

FN4  IN THESE CIRCUMSTANCES THE SITUATION HERE IS HARDLY COMPARABLE
TO ONE IN WHICH A STATE HAS ATTEMPTED TO IMPOSE UPON A FOREIGN
CORPORATION, NOT DOING BUSINESS IN THE STATE, LIABILITY FOR THE
COLLECTION OF A USE TAX WITH RESPECT TO GOODS PURCHASED BY RESIDENTS OF
THE TAXING STATE AT A STORE OF THE CORPORATION LOCATED IN THE STATE OF
ITS DOMICILE.  SEE MILLER BROS. CO. V. MARYLAND, 347 U.S. 340.  SURELY
THE NATURAL GAS ACT WAS NOT INTENDED TO RELIEVE INTERSTATE PIPELINES
DOING BUSINESS IN A PARTICULAR STATE FROM THE MERE MATHEMATICAL
COMPUTATION INVOLVED IN RATABLY DISTRIBUTING ITS OVER-ALL NEED FOR
NATURAL GAS AMONG THE PRODUCERS WITH WHICH IT HAS BUSINESS CONNECTIONS
IN THAT STATE. 

FN5  AS THIS COURT NOTED IN FEDERAL POWER COMM'N V. TRANSCONTINENTAL
GAS PIPE LINE CORP., 365 U.S. 1,8:  "  ...  CONGRESS, IN ENACTING THE
NATURAL GAS ACT, DID NOT GIVE THE COMMISSION COMPREHENSIVE POWERS OVER
EVERY INCIDENT OF GAS PRODUCTION, TRANSPORTATION AND SALE.  RATHER,
CONGRESS WAS 'METICULOUS' ONLY TO INVEST THE COMMISSION WITH AUTHORITY
OVER CERTAIN ASPECTS OF THIS FIELD, LEAVING THE RESIDUE FOR STATE
REGULATION." 

FN6  THAT CRIMINAL PENALTIES FOR NONCOMPLIANCE ARE IMPOSED ON
PURCHASERS ADDS NOTHING TO THE FACT THAT THE ORDERS ARE ADDRESSED TO
PURCHASERS. 

FN7  MEMORANDUM FOR THE FEDERAL POWER COMMISSION AS AMICUS CURIAE,
PP. 21-22. 

FN8  THE COURT DISCLAIMS ANY NEED TO CONSIDER THE CONTENTION THAT THE
TRUE PURPOSE OF THE KANSAS ORDERS WAS TO REQUIRE OVERPRODUCTION OF THE
KANSAS PART OF THE HUGOTON FIELD IN ORDER TO PREVENT ITS DRAINAGE INTO
TEXAS AND OKLAHOMA (ANTE, PP. 94-95, NOTE 12). 

FN9  WHEN ONE WELL IN A COMMON POOL PRODUCES A LARGE VOLUME OF GAS,
THE PRESSURE IS REDUCED AT THAT POINT; THE GAS IN THE COMMON POOL THEN
TENDS TO FLOW TOWARD THE LOW PRESSURE POINT, THEREBY REDUCING THE
AMOUNT OF GAS AVAILABLE FOR PRODUCTION BY OTHER WELLS. 

FN10  SEE ALSO PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE
COMM'N, 332 U.S. 507, 517 ("THE ACT, THOUGH EXTENDING FEDERAL
REGULATION, HAD NO PURPOSE OR EFFECT TO CUT DOWN STATE POWER"); FEDERAL
POWER COMM'N V. PANHANDLE EASTERN PIPE LINE CO., 337 U.S. 498, 502-503,
512-513; INTERSTATE NATURAL GAS CO. V. FEDERAL POWER COMM'N, 331 U.S.
682, 690. 

FN11  REPUBLIC NATURAL GAS CO. V. NORTHERN NATURAL GAS CO., NOS. 4165
AND 4235, DISTRICT COURT OF STEVENS COUNTY, KANSAS, IN WHICH, WE ARE
TOLD, REPUBLIC CLAIMS DAMAGES FROM NORTHERN FOR FAILURE TO OBSERVE THE
TAKE OR PAY PROVISIONS OF THE "A" CONTRACT. 
..END :






GALLICK V. BALTIMORE & OHIO RAILROAD CO. 372 U.S. 108 


NO. 76.  ARGUED DECEMBER 10, 1962.  - DECIDED FEBRUARY 18, 1963.  - 173
N.E.2D 382, REVERSED. 


WHILE WORKING ON A RAILROAD NEAR A STAGNANT, VERMIN-INFESTED POOL OF
WATER, PETITIONER SUFFERED AN INSECT BITE WHICH BECAME INFECTED AND
ULTIMATELY RESULTED IN THE LOSS OF BOTH OF HIS LEGS.  HE SUED THE
RAILROAD IN A STATE COURT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT,
ALLEGING THAT THE RAILROAD WAS NEGLIGENT IN MAINTAINING A STAGNANT POOL
THAT ATTRACTED VERMIN AND INSECTS.  UPON A SPECIAL VERDICT OF THE JURY,
THE TRIAL COURT ENTERED JUDGMENT AWARDING DAMAGES TO PETITIONER.  THE
STATE APPELLATE COURT REVERSED ON THE GROUND THAT PROOF OF A CAUSAL
CONNECTION BETWEEN THE NEGLIGENCE AND DAMAGE FELL SHORT OF THAT
REQUIRED FOR THE CONSIDERATION OF A JURY.  HELD:  THE STATE APPELLATE
COURT IMPROPERLY INVADED THE FUNCTION AND PROVINCE OF THE JURY, AND ITS
JUDGMENT IS REVERSED.  PP. 109-122. 

(A)  THE RECORD CONTAINS SUFFICIENT EVIDENCE TO WARRANT THE JURY'S
CONCLUSION THAT PETITIONER'S INJURIES WERE CAUSED BY THE ACTS OR
OMISSIONS OF THE RAILROAD, AND THE STATE APPELLATE COURT ERRED IN
REFUSING TO ACCEPT THE JURY'S VERDICT.  PP. 113-117. 

(B)  REASONABLE FORESEEABILITY OF HARM IS AN ESSENTIAL INGREDIENT OF
FEDERAL EMPLOYERS' LIABILITY ACT NEGLIGENCE; BUT THIS REQUIREMENT WAS
SATISFIED IN THE PRESENT CASE BY THE JURY'S FINDINGS OF NEGLIGENCE IN
MAINTAINING THE FILTHY POOL OF WATER.  PP. 117-119. 

(C)  THERE WAS NO FATAL INCONSISTENCY IN THE JURY'S FINDINGS.  PP. 119
122. 

GALLICK V. BALTIMORE & OHIO RAILROAD CO. 

CERTIORARI TO THE COURT OF APPEALS OF OHIO, CUYAHOGA COUNTY. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

UPON A SPECIAL VERDICT OF THE JURY, THE COMMON PLEAS COURT OF
CUYAHOGA COUNTY, OHIO, ENTERED JUDGMENT AWARDING DAMAGES TO PETITIONER
IN THIS FEDERAL EMPLOYERS' LIABILITY ACT (FN1) SUIT.  THE COURT OF
APPEALS REVERSED, 173 N.E.2D 382, AND THE OHIO SUPREME COURT REFUSED
FURTHER APPELLATE REVIEW, 172 OHIO ST. 488, 178 N.E.2D 597, MAKING THE
DECISION OF THE INTERMEDIATE APPELLATE COURT THE FINAL JUDGMENT
RENDERED BY THE STATE COURTS.  THIS COURT GRANTED CERTIORARI, 369 U.S.
848, TO CONSIDER THE QUESTION WHETHER THE DECISION BELOW IMPROPERLY
INVADED THE JURY'S FUNCTION.  WE HAVE CONCLUDED THAT THE DECISION BELOW
IS ERRONEOUS AND MUST BE REVERSED. 

PETITIONER WAS A SPOTTING CREW FOREMAN WORKING ON OR ABOUT AUGUST 10,
1954, ALONG THE RESPONDENT RAILROAD'S RIGHT OF WAY IN THE CUYAHOGA
RIVER "FLATS" SECTION OF CLEVELAND, OHIO.  AT THE PARTICULAR STRETCH OF
ROADBED WHERE PETITIONER WAS WORKING ON THAT AFTERNOON, THERE HAD BEEN
FOR MANY YEARS A POOL OF STAGNANT WATER, IN AND ABOUT WHICH WERE DEAD
AND DECAYED RATS AND PIGEONS, OR PORTIONS THEREOF.  INSECTS HAD BEEN
SEEN ON, OVER, AND ABOUT THIS STAGNANT POOL, AND THE EVIDENCE SHOWED,
AS THE COURT OF APPEALS STATED, THAT RESPONDENT HAD LONG BEEN AWARE OF
THE FETID CONDITION OF THIS POOL.  173 N.E.2D, AT 383.  WHILE HE WAS
TEMPORARILY WORKING NEAR THE POOL, PETITIONER EXPERIENCED A BITE ON HIS
LEFT LEG JUST ABOVE THE KNEE.  HE GRASPED THE SPOT WITH HIS HAND AND
FELT AN OBJECT UNDER HIS TROUSERS WHICH SEEMED TO BE A LARGE INSECT AND
WHICH, WHEN HE CRUSHED IT, DROPPED OUT OF HIS TROUSER LEG.  THE WOUND
SUBSEQUENTLY BECAME INFECTED.  THE INFECTION FAILED TO RESPOND TO
MEDICAL TREATMENT, AND WORSENED PROGRESSIVELY UNTIL IT SPREAD
THROUGHOUT PETITIONER'S BODY, CREATING PUS-FORMING LESIONS AND
EVENTUALLY NECESSITATING THE AMPUTATION OF BOTH HIS LEGS.  NONE OF THE
DOCTORS WHO TREATED AND STUDIED PETITIONER'S CASE COULD EXPLAIN THE
ETIOLOGY OF HIS PRESENT CONDITION, ALTHOUGH SOME OF THEM DIAGNOSED OR
CHARACTERIZED IT AS "PYODERMAGANGRENOSA, SECONDARY TO INSECT BITE." 
SEE ID., AT 384. 

THE FEDERAL EMPLOYERS' LIABILITY ACT MAKES RAILROADS LIABLE IN
DAMAGES TO ANY EMPLOYEE SUFFERING "INJURY OR DEATH RESULTING IN WHOLE
OR IN PART FROM THE NEGLIGENCE OF  ...  THE CARRIER, OR BY REASON OF
ANY DEFECT OR INSUFFICIENCY, DUE TO ITS NEGLIGENCE, IN ITS  ...
ROADBED  ...  OR OTHER EQUIPMENT."  45 U.S.C. SEC. 51.  IN HIS
COMPLAINT PETITIONER ALLEGED RESPONDENT'S NEGLIGENCE BOTH IN PERMITTING
THE STAGNANT POOL TO ACCUMULATE DEAD VERMIN AND ATTRACT INSECTS, AND IN
ITS FURNISHING A DEFECTIVE AND UNSAFE PLACE FOR PETITIONER'S WORK.  THE
RESPONDENT DENIED ANY NEGLIGENCE AND CONTENDED THAT IF PETITIONER'S
SERIOUS INJURIES RESULTED FROM AN INSECT BITE SUSTAINED WHILE WORKING
ON RAILROAD PROPERTY, SUCH CONSEQUENCES "WERE BEYOND THE REALM OF
REASONABLE PROBABILITY OR FORESEEABILITY, WITH THE RESULT THAT NO DUTY
AROSE" TO EXERCISE DUE CARE TO PROTECT PETITIONER "FROM ANY SUCH
RISK."  173 N.E.2D, AT 384. 

AFTER A LENGTHY TRIAL, THE COURT, PURSUANT TO THE STATE'S SPECIAL
VERDICT STATUTE, OHIO REV. CODE, SEC. 2315.15, UNDER WHICH NO GENERAL
VERDICT IS RENDERED BY THE JURY, SUBMITTED SOME TWO DOZEN
INTERROGATORIES TO THE JURY AND CHARGED THEM AS TO WHAT IT DEEMED THE
APPLICABLE LAW OF NEGLIGENCE.  THE SPECIAL VERDICT OF THE JURY, TO THE
EXTENT THAT IT IS RELEVANT HERE, FOLLOWS: 

"10.  ON APPROXIMATELY AUGUST 10, 1954, WAS PLAINTIFF BITTEN BY AN
INSECT?  YES. 

     *         *         *         *  * 

"13.  DID THE DEFENDANT B&O PROVIDE THE PLAINTIFF MR. GALLICK A
REASONABLY SAFE PLACE TO WORK UNDER THE FACTS AND CIRCUMSTANCES
EXISTING AT THE TIME?  JURY CAN'T DECIDE ON THIS QUESTION. 

"14.  DID THE DEFENDANT B&O KNOW THAT BY PERMITTING THE ACCUMULATION
OF SAID POOL OF STAGNANT WATER, DEAD PIGEONS, DEAD RATS, BUGS, AND
VERMIN WOULD BE ATTRACTED TO SAID AREA?  YES. 

"15.  IF THE ANSWER TO 14 IS YES, DID THE DEFENDANT B&O KNOW THAT ITS
EMPLOYEES WOULD HAVE TO WORK IN THIS AREA?  YES. 

"16.  WAS THE DEFENDANT NEGLIGENT IN ONE OR MORE OF THE PARTICULARS
ALLEGED IN THE PETITION?  YES. 

"17.  IF THE ANSWER TO QUESTION 16 IS YES, INDICATE IN THE WORDS OF
THE PETITION THE ACTS OR OMISSIONS WHICH CONSTITUTE DEFENDANT'S
NEGLIGENCE.  THERE EXISTED A POOL OF STAGNANT WATER ON THE PREMISES IN
THE POSSESSION OF AND UNDER THE CONTROL OF DEFENDANT INTO WHICH WAS
ACCUMULATED DEAD PIGEONS, RATS, AND VARIOUS FORMS OF BUGS AND VERMIN. 

"18.  WAS THE ILLNESS OR DISEASES FROM WHICH MR. GALLICK NOW SUFFERS
CAUSED IN WHOLE OR IN PART BY AN INSECT BITE SUSTAINED BY HIM ON
DEFENDANT B&O'S PREMISES?  YES. 

"19.  WERE THE INJURIES TO THE PLAINTIFF PROXIMATELY CAUSED  ...  BY
...  THE ACTS OR OMISSIONS OF THE DEFENDANT?  YES. 

"20.  WAS THERE ANY REASON FOR THE DEFENDANT B&O TO ANTICIPATE THAT
SUCH (MAINTAINING STAGNANT, INFESTED POOL) WOULD OR MIGHT PROBABLY
RESULT IN A MISHAP OR AN INJURY?  NO. 

"21.  IS THERE A PROXIMATE CAUSAL RELATIONSHIP TO THE STAGNANT WATER,
THE DEAD RATS, THE DEAD PIGEONS, THE INSECT BITE, AND THE PRESENT
PHYSICAL CONDITION OF THE PLAINTIFF?  YES. 

"22.  IF THE ANSWER TO QUESTION 21 IS YES, WAS IT WITHIN THE REALM OF
REASONABLE PROBABILITY OR FORESEEABILITY OF THE DEFENDANT B&O TO
APPRECIATE THIS PROXIMATE CAUSAL RELATIONSHIP BETWEEN THE STAGNANT
WATER, THE DEAD RATS, THE DEAD PIGEONS, THE INSECT BITE AND THE PRESENT
PHYSICAL CONDITION OF THE PLAINTIFF?  NO." 

THE TRIAL COURT ENTERED JUDGMENT FOR PETITIONER AND RESPONDENT
APPEALED, ASSIGNING AS ERROR VARIOUS TRIAL RULINGS, NONE OF WHICH THE
COURT OF APPEALS FOUND "PREJUDICIAL TO THE RIGHTS OF THE APPELLANT,"
EXCEPT THE FUNDAMENTAL ONE, IN THE COURT'S VIEW, THAT JUDGMENT FOR
RESPONDENT SHOULD HAVE BEEN ENTERED ON A DIRECTED VERDICT BECAUSE THE
TRIAL EVIDENCE WAS INSUFFICIENT TO SUPPORT A JUDGMENT FOR PETITIONER. 
(FN2)  THE COURT SAID THAT THE EVIDENCE SHOWED THAT AN INSECT BIT
PETITIONER AND CAUSED HIS SEVERE INJURIES.  IT ALSO FOUND THAT "TO
MAINTAIN FOR A PERIOD OF YEARS A STAGNANT, VERMIN-INFESTED POOL OF
WATER ON AND OVER WHICH INSECTS GATHER," ON PROPERTY WHERE THE
RAILROAD'S EMPLOYEES WERE REQUIRED TO WORK "COULD FURNISH THE GRAVAMEN
OF AN OFFENSE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT."  173 N.E.2D,
AT 387.  THE COURT EMPHASIZED, HOWEVER, THAT THERE WAS NO "DIRECT
EVIDENCE THAT THE EXISTENCE OF THE UNIDENTIFIED BUG AT THE TIME AND
PLACE HAD ANY CONNECTION WITH THE STAGNANT AND INFESTED POOL," OR HAD
BECOME INFECTED BY THE POOL WITH THE SUBSTANCE THAT CAUSED PETITIONER'S
INFECTION, EVIDENCE WHICH WOULD NEGATIVE THE ALTERNATIVE POSSIBILITY
THAT THE INSECT HAD EMANATED FROM "THE NEARBY PUTRID MOUTH OF THE
CUYAHOGA RIVER, OR FROM WEEDS, OR UNSANITARY PLACES SITUATED ON
PROPERTY NOT OWNED OR CONTROLLED BY THE RAILROAD."  THE COURT OF
APPEALS THEREFORE DEEMED THE EVIDENCE MERELY "A SERIES OF GUESSES AND
SPECULATIONS  ...  A CHAIN OF CAUSATION TOO TENUOUS TO SUPPORT A
CONCLUSION OF LIABILITY."  ID., AT 388.  "WE HAVE A CHAIN OF
POSSIBILITIES THAT THE NEGLIGENCE OF THE DEFENDANT MIGHT HAVE SHARED IN
SUBJECTING THE PLAINTIFF TO DAMAGE AND INJURY, BUT THE PROOF OF A LEGAL
CAUSAL CONNECTION BETWEEN THE NEGLIGENCE AND THE DAMAGE FALLS SHORT OF
THAT REQUIRED FOR THE CONSIDERATION OF A JURY."  IBID.  ACCORDINGLY, IT
REVERSED THE JUDGMENT OF THE COURT OF COMMON PLEAS AND ENTERED FINAL
JUDGMENT FOR RESPONDENT. 

                                   I. 

WE THINK THAT THE COURT OF APPEALS IMPROPERLY INVADED THE FUNCTION
AND PROVINCE OF THE JURY IN THIS FEDERAL EMPLOYERS' LIABILITY ACT
CASE.  ACCORDING TO THE COURT OF APPEALS, THE BREAK IN THE CAUSAL CHAIN
THAT TURNED IT INTO A MERE "SERIES OF GUESSES AND SPECULATIONS" WAS THE
WANT OF EVIDENCE FROM WHICH THE JURY COULD PROPERLY CONCLUDE THAT
RESPONDENT'S FETID POOL HAD HAD SOMETHING TO DO WITH THE INSECT THAT
BIT PETITIONER.  THE ONLY QUESTION WAS WHETHER OR NOT THE INSECT WAS
FROM OR HAD BEEN ATTRACTED BY THE POOL.  WE HOLD THAT THE RECORD SHOWS
SUFFICIENT EVIDENCE TO WARRANT THE JURY'S CONCLUSION THAT PETITIONER'S
INJURIES WERE CAUSED BY THE ACTS OR OMISSIONS OF RESPONDENT. 

AS THE COURT OF APPEALS STATED, "INSECTS WERE SEEN ON, OVER AND ABOUT
THIS STAGNANT POOL."  ACCORDING TO PETITIONER'S UNDISPUTED TESTIMONY,
HE STOOD NEAR THE POOL FOR ABOUT A HALF A MINUTE; THEN HE STARTED TO
WALK AWAY AND WAS BITTEN ON THE LEG AFTER HE TOOK A FEW STEPS, PERHAPS
ONE OR TWO SECONDS LATER.  PETITIONER ALSO TESTIFIED, ON CROSS
EXAMINATION, THAT HE HAD AT TIMES SEEN INSECTS OF ABOUT THE SAME SIZE
AS THAT WHICH BIT HIM CRAWLING OVER THE DEAD RATS AND PIGEONS IN THE
STAGNANT POOL.  AND ON CROSS-EXAMINATION BY RESPONDENT TWO MEDICAL
WITNESSES TESTIFIED THAT STAGNANT, RAT-INFESTED POOLS BREED AND ATTRACT
INSECTS.  (FN3)  MOREOVER, THE JURY SPECIFICALLY FOUND THAT THE POOL
ACCUMULATED AND ATTRACTED BUGS AND VERMIN. 

THE COURT OF APPEALS ERRED IN DEMANDING EITHER "DIRECT EVIDENCE THAT
THE EXISTENCE OF THE UNIDENTIFIED BUG AT THE TIME AND PLACE HAD ANY
CONNECTION WITH THE STAGNANT AND INFESTED POOL" OR ELSE MORE
SUBSTANTIAL CIRCUMSTANTIAL EVIDENCE THAN THAT ADDUCED HERE "THAT THE
POOL CREATED CONDITIONS AND INFLUENCES WHICH HELPED TO INCUBATE OR
FURNISH AN ENVIRONMENT FOR THE BUG  ...  OR THAT THE INSECT, HAVING
TRAVELED FROM OTHER AREAS, BECAME CONTAMINATED OR INFECTED BY THE
POOL."  173 N.E.2D, AT 388.  UNDER THE RULING CASES IN THIS COURT THE
EVIDENCE PRESENT WAS SUFFICIENT TO RAISE AN ISSUE FOR THE JURY'S
DETERMINATION AS TO WHETHER THE INSECT EMANATED FROM THE POOL. 

IN TENNANT V. PEORIA & P.U.R. CO., 321 U.S. 29, ONE OF THE LEADING
CASES, THE COURT GRANTED CERTIORARI "BECAUSE OF IMPORTANT PROBLEMS AS
TO PETITIONER'S RIGHT TO A JURY DETERMINATION OF THE ISSUE OF
CAUSATION."  THERE WAS NO DIRECT EVIDENCE OF HOW THE DECEDENT WAS
KILLED.  THERE WAS EVIDENCE THAT THE RESPONDENT RAILROAD HAD BEEN
NEGLIGENT OR CARELESS IN FAILING TO RING A WARNING BELL BEFORE MOVING
AN ENGINE, AND EVIDENCE THAT THE VICTIM WAS KILLED BY BEING RUN OVER BY
A TRAIN.  THE QUESTION OF HOW THE VICTIM MET HIS DEATH WAS SUSCEPTIBLE
TO VARIOUS ANSWERS, ALL SOMEWHAT CONJECTURAL BECAUSE OF THE WANT OF
DIRECT EVIDENCE, SOME OF WHICH SUPPORTED PETITIONER'S CLAIMS AND OTHERS
RESPONDENT'S.  THE COURT OF APPEALS SET ASIDE A JURY VERDICT FOR
PETITIONER FOR FAILURE OF THE EVIDENCE TO MAKE OUT PROXIMATE CAUSE, BUT
THIS COURT REVERSED: 

"IT IS NOT THE FUNCTION OF A COURT TO SEARCH THE RECORD FOR
CONFLICTING CIRCUMSTANTIAL EVIDENCE IN ORDER TO TAKE THE CASE AWAY FROM
THE JURY ON A THEORY THAT THE PROOF GIVES EQUAL SUPPORT TO INCONSISTENT
AND UNCERTAIN INFERENCES.  THE FOCAL POINT OF JUDICIAL REVIEW IS THE
REASONABLENESS OF THE PARTICULAR INFERENCE OR CONCLUSION DRAWN BY THE
JURY.  IT IS THE JURY, NOT THE COURT, WHICH IS THE FACT-FINDING BODY. 
IT WEIGHS THE CONTRADICTORY EVIDENCE AND INFERENCES, JUDGES THE
CREDIBILITY OF WITNESSES, RECEIVES EXPERT INSTRUCTIONS, AND DRAWS THE
ULTIMATE CONCLUSION AS TO THE FACTS.  THE VERY ESSENCE OF ITS FUNCTION
IS TO SELECT FROM AMONG CONFLICTING INFERENCES AND CONCLUSIONS THAT
WHICH IT CONSIDERS MOST REASONABLE.  WASHINGTON & GEORGETOWN R. CO. V.
MCDADE, 135 U.S. 554, 571, 572; TILLER V. ATLANTIC COAST LINE R. CO.,
SUPRA, 68; BAILEY V. CENTRAL VERMONT RY., 319 U.S. 350, 353, 354.  THAT
CONCLUSION, WHETHER IT RELATES TO NEGLIGENCE, CAUSATION OR ANY OTHER
FACTUAL MATTER, CANNOT BE IGNORED.  COURTS ARE NOT FREE TO REWEIGH THE
EVIDENCE AND SET ASIDE THE JURY VERDICT MERELY BECAUSE THE JURY COULD
HAVE DRAWN DIFFERENT INFERENCES OR CONCLUSIONS OR BECAUSE JUDGES FEEL
THAT OTHER RESULTS ARE MORE REASONABLE."  321 U.S., AT 35. 

LATER FEDERAL EMPLOYERS' LIABILITY ACT CASES INVOLVING SUFFICIENCY OF
THE EVIDENCE ON CAUSATION WHERE SEVERAL EXPLANATIONS ARE PLAUSIBLE
FOLLOW THE TEACHING OF THE TENNANT CASE.  IN SCHULZ V. PENNSYLVANIA R.
CO., 350 U.S. 523, A TUG FIREMAN WAS DROWNED IN UNDETERMINED
CIRCUMSTANCES ARISING FROM HIS "WORK ON  ...  DARK, ICY AND UNDERMANNED
BOATS"; THE LOWER COURT SAID:  "THERE IS SOME EVIDENCE OF NEGLIGENCE,
AND THERE IS AN ACCIDENTAL DEATH.  BUT THERE IS NOT A SHRED OF EVIDENCE
CONNECTING THE TWO."  THIS COURT HELD THAT THERE WAS SUFFICIENT
EVIDENCE OF CAUSATION TO REQUIRE SUBMISSION OF THE CASE TO THE JURY. 
LAVENDER V. KURN, 327 U.S. 645, WAS ANOTHER FEDERAL EMPLOYERS'
LIABILITY ACT CASE IN WHICH IT WAS UNCERTAIN WHICH OF VARIOUS
ALTERNATIVE EXPLANATIONS FOR THE CAUSE OF THE INJURY WAS CORRECT. 
PETITIONER'S THEORY WAS THAT A MAIL-HOOK PROTRUDING FROM A TRAIN HAD
HIT THE VICTIM, WHILE RESPONDENT'S THEORY WAS THAT AN UNKNOWN MURDERER
WAS RESPONSIBLE.  BOTH THEORIES WERE PLAUSIBLE; THE JURY FOUND FOR
PETITIONER, BUT THE LOWER COURT REVERSED FOR INSUFFICIENT EVIDENCE. 
THIS COURT REVERSED ON THE GROUND THAT THE LOWER APPELLATE COURT HAD
COMMITTED "AN UNDUE INVASION OF THE JURY'S HISTORIC FUNCTION." 

THESE CASES, AS DOES THE INSTANT CASE, ALL INVOLVED THE QUESTION OF
WHETHER THERE WAS EVIDENCE THAT ANY EMPLOYER NEGLIGENCE CAUSED THE
HARM, OR, MORE PRECISELY, ENOUGH TO JUSTIFY A JURY'S DETERMINATION THAT
EMPLOYER NEGLIGENCE HAD PLAYED ANY ROLE IN PRODUCING THE HARM.  IN THE
MORE RECENT CASE, ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500, ONE OF
THE QUESTIONS WAS WHETHER, GIVEN THE ANTECEDENT NEGLIGENCE OR
CARELESSNESS OF THE EMPLOYER IN MAINTAINING A ROADSIDE SURFACE WITH
LOOSE, SLIPPERY GRAVEL INSTEAD OF A FIRM, FLAT FOOTING, THE CAUSAL
IMPACT OF SUCH NEGLECTFULNESS WAS NEGATIVED BY THE SUBSEQUENT OR
CONCURRENT NEGLIGENCE OF THE EMPLOYEE IN FAILING TO PAY ATTENTION TO
WHAT HE WAS SUPPOSED TO BE DOING.  ALTHOUGH THE CONTEXT IS THUS
SOMEWHAT DISSIMILAR TO THE PRESENT ONE, THE LANGUAGE USED IN THE
OPINION IS MOST APPOSITE:    "UNDER THIS STATUTE THE TEST OF A JURY
CASE IS SIMPLY WHETHER THE PROOFS JUSTIFY WITH REASON THE CONCLUSION
THAT EMPLOYER NEGLIGENCE PLAYED ANY PART  ...  IN PRODUCING THE INJURY
...  .  IT DOES NOT MATTER THAT, FROM THE EVIDENCE, THE JURY MAY ALSO
WITH REASON, ON GROUNDS OF PROBABILITY, ATTRIBUTE THE RESULT TO OTHER
CAUSES  ...  .  JUDICIAL APPRAISAL OF THE PROOFS TO DETERMINE WHETHER A
JURY QUESTION IS PRESENTED IS NARROWLY LIMITED TO THE SINGLE INQUIRY
WHETHER, WITH REASON, THE CONCLUSION MAY BE DRAWN THAT NEGLIGENCE OF
THE EMPLOYER PLAYED ANY PART AT ALL IN THE INJURY OR DEATH.  JUDGES ARE
TO FIX THEIR SIGHTS PRIMARILY TO MAKE THAT APPRAISAL AND, IF THAT TEST
IS MET, ARE BOUND TO FIND THAT A CASE FOR THE JURY IS MADE OUT WHETHER
OR NOT THE EVIDENCE ALLOWS THE JURY A CHOICE OF OTHER PROBABILITIES." 
352 U.S., AT 506-507. 

THE FACTS BEFORE THE JURY FALL WITHIN THIS STANDARD AND THE COURT OF
APPEALS THEREFORE ERRED IN REFUSING TO ACCEPT THE JURY'S VERDICT. 

       II. 

ALTHOUGH WE HAVE CONCLUDED THAT THE JURY COULD PROPERLY FIND THAT
THERE WAS A CAUSAL RELATIONSHIP BETWEEN THE RAILROAD'S NEGLIGENCE AND
PETITIONER'S INJURIES, THAT DOES NOT END THE CASE.  (FN4) RESPONDENT
MAKES THE FURTHER ARGUMENT THAT THE JUDGMENT UNDER REVIEW MAY BE
SUSTAINED ON THE ALTERNATIVE GROUND, NOT ACCEPTED BY THE COURT OF
APPEALS, THAT THE INJURY WAS NOT REASONABLY FORESEEABLE, AND THAT
THEREFORE THERE WAS NO NEGLIGENCE. 

WE AGREE WITH RESPONDENT THAT REASONABLE FORSEEABILITY OF HARM IS AN
ESSENTIAL INGREDIENT OF FEDERAL EMPLOYERS' LIABILITY ACT NEGLIGENCE. 
INMAN V. BALTIMORE & O. R. CO., 361 U.S. 138, 140; SEE BRADY V.
SOUTHERN R. CO., 320 U.S. 476, 483-484; TILLER V. ATLANTIC C.L.R.  CO.,
318 U.S. 54, 67; RINGHISER V. CHESAPEAKE & O. R. CO., 354 U.S. 901, 903
905 (DISSENTING OPINIONS); ROGERS V. MISSOURI PAC. R. CO., 352 U.S.
500, 503; CF. MORALES V. CITY OF GALVESTON, 370 U.S. 165, 171; DALEHITE
V. UNITED STATES, 346 U.S. 15, 42.  (FN5)  BUT THIS REQUIREMENT HAS
BEEN SATISFIED IN THE PRESENT CASE BY THE JURY'S FINDINGS (NOS. 10, 14
19, 21) OF NEGLIGENCE IN MAINTAINING THE FILTHY POOL OF WATER.  THE
JURY HAD BEEN INSTRUCTED THAT NEGLIGENCE IS THE FAILURE TO OBSERVE THAT
DEGREE OF CARE WHICH PEOPLE OF ORDINARY PRUDENCE AND SAGACITY WOULD USE
UNDER THE SAME OR SIMILAR CIRCUMSTANCES, (FN6) AND THAT DEFENDANT'S
DUTY WAS MEASURED BY WHAT A REASONABLY PRUDENT PERSON WOULD ANTICIPATE
AS RESULTING FROM A PARTICULAR CONDITION - "DEFENDANT'S DUTIES ARE
MEASURED BY WHAT IS REASONABLY FORESEEABLE UNDER LIKE CIRCUMSTANCES" -
BY WHAT "IN THE LIGHT OF THE FACTS THEN KNOWN, SHOULD OR COULD
REASONABLY HAVE BEEN ANTICIPATED."  (FN7)  THUS WHEN THE JURY FOUND
THESE FACTS: PETITIONER WAS BITTEN BY AN INSECT; THE INSECT BITE CAUSED
ILLNESS OR DISEASE AND LED TO PETITIONER'S PRESENT PHYSICAL CONDITION;
THE STAGNANT POOL ATTRACTED BUGS AND VERMIN AND WAS RESPONSIBLE FOR THE
INSECT BITE AND THE INJURIES TO PETITIONER; AND RESPONDENT KNEW THAT
THE ACCUMULATION OF THE POOL OF WATER WOULD ATTRACT BUGS AND VERMIN TO
THE AREA - IT IS CLEAR THAT THE JURY CONCLUDED THAT RESPONDENT SHOULD
HAVE REALIZED THE INCREASED LIKELIHOOD OF AN INSECT'S BITING PETITIONER
WHILE HE WAS WORKING IN THE VICINITY OF THE POOL. 

RESPONDENT PLACES RELIANCE, HOWEVER, UPON TWO SPECIAL INTERROGATORIES
RETURNED BY THE JURY.  IN ONE, NO. 22, THE JURY FOUND THAT RESPONDENT
COULD NOT FORESEE THAT THE STAGNANT POOL WOULD SET INTO BEING A CHAIN
OF EVENTS THAT WOULD CULMINATE IN PETITIONER'S PRESENT PHYSICAL
CONDITION - LOSS OF TWO LIMBS, WIDESPREAD ULCERATIONS, AND PERMANENT
DISABILITY.  IN THE OTHER, NO. 20, THE JURY FOUND THAT RESPONDENT DID
NOT HAVE REASON TO ANTICIPATE THAT ITS MAINTENANCE OF THE POOL "WOULD
OR MIGHT PROBABLY RESULT IN A MISHAP OR AN INJURY."  IT IS SAID THAT
INTERROGATORIES NOS. 20 AND 22 ARE FINDINGS OF NO FORESEEABILITY, AND
THAT THERE IS THEREFORE A FATAL INCONSISTENCY AMONG THE JURY'S FINDINGS
AND THAT THEY CANCEL ONE ANOTHER OUT, NECESSITATING A JUDGMENT FOR THE
DEFENDANT, OR AT LEAST A NEW TRIAL.  SEE FREIGHTWAYS, INC., V.
STAFFORD, 217 F.2D 831, 835 (C.A.  8TH CIR.); FED. RULES CIV. PROC.
49(B).  SEE ALSO LARRISSEY V. NORWALK LINES, 155 OHIO ST. 207, 214-215,
98 N.E.2D 419, 423-424; KLEVER V. REID BROS., 151 OHIO ST. 467, 476, 86
N.E.2D 608, 612.  BUT IT IS THE DUTY OF THE COURTS TO ATTEMPT TO
HARMONIZE THE ANSWERS, IF IT IS POSSIBLE UNDER A FAIR READING OF THEM:
"WHERE THERE IS A VIEW OF THE CASE THAT MAKES THE JURY'S ANSWERS TO
SPECIAL INTERROGATORIES CONSISTENT, THEY MUST BE RESOLVED THAT WAY." 
ATLANTIC & GULF STEVEDORES, INC., V. ELLERMAN LINES, LTD., 369 U.S.
355, 364.  WE THEREFORE MUST ATTEMPT TO RECONCILE THE JURY'S FINDINGS,
BY EXEGESIS IF NECESSARY, AS IN ARNOLD V. PANHANDLE & S.F.R. CO., 353
U.S. 360; MCVEY V. PHILLIPS CO., 288 F.2D 53 (C.A. 5TH CIR.); MORRIS V.
PENNSYLVANIA R. CO., 187 F.2D 837 (C.A.2D CIR.)(COLLECTING
AUTHORITIES), BEFORE WE ARE FREE TO DISREGARD THE JURY'S SPECIAL
VERDICT AND REMAND THE CASE FOR A NEW TRIAL. 

WE DO NOT BELIEVE THAT THE CONCLUSION OF FATAL INCONSISTENCY IS
COMPELLED BY THESE FINDINGS.  IN THE FIRST PLACE, THE JURY MIGHT NOT
HAVE EQUATED A FORESEEABLE INSECT BITE WITH A MISHAP OR INJURY.  THE
TRIAL JUDGE MORE THAN ONCE IN HIS INSTRUCTIONS SEPARATED AN "INSECT
BITE" FROM "INJURY," "INFECTION," "ILLNESS" OR "DISEASE."  THE ANSWER
TO QUESTION 20 THUS MIGHT MEAN SIMPLY THAT WHILE AN INSECT BITE WAS
FORESEEABLE, THERE WAS NO REASON TO ANTICIPATE A "MISHAP" OR "INJURY"
FROM SUCH A BITE.  THIS ANSWER THEREFORE FALLS IN THE SAME CATEGORY AS
THE JURY'S RESPONSE TO QUESTION 22, WHERE THE JURY FOUND THAT THERE WAS
NO REASONABLY FORESEEABLE CAUSAL RELATIONSHIP BETWEEN THE INSECT BITE
AND THE PRESENT PHYSICAL CONDITION OF THE PLAINTIFF.  IT IS WIDELY HELD
THAT FOR A DEFENDANT TO BE LIABLE FOR CONSEQUENTIAL DAMAGES HE NEED NOT
FORESEE THE PARTICULAR CONSEQUENCES OF HIS NEGLIGENT ACTS:  ASSUMING
THE EXISTENCE OF A THRESHOLD TORT AGAINST THE PERSON, THEN WHATEVER
DAMAGES FLOW FROM IT ARE RECOVERABLE.  SEE, E.G., BOAL V. ELECTRIC
BATTERY CO., 98 F.2D 815, 819 (C.A. 3D CIR.); KOEHLER V. WAUKESHA MILK
CO., 190 WIS. 52, 57-63, 208 N.W. 901, 903-905 (COLLECTING AUTHORITIES
); RESTATEMENT, TORTS, SEC. 435; 2 HARPER AND JAMES, TORTS, 1139-1140;
PROSSER, TORTS, 260 (2D ED.); SEAVEY, MR. JUSTICE CARDOZO AND THE LAW
OF TORTS, 48 YALE L.J. 390, 402-403.  (FN8)  AND WE HAVE NO DOUBT THAT
UNDER A STATUTE WHERE THE TORTFEASOR IS LIABLE FOR DEATH OR INJURIES IN
PRODUCING WHICH HIS "NEGLIGENCE PLAYED ANY PART, EVEN THE SLIGHTEST"
(ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500, 506) SUCH A TORTFEASOR
MUST COMPENSATE HIS VICTIM FOR EVEN THE IMPROBABLE OR UNEXPECTEDLY
SEVERE CONSEQUENCES OF HIS WRONGFUL ACT.  CF. KERNAN V. AMERICAN
DREDGING CO., 355 U.S. 426; CORAY V. SOUTHERN PAC. CO., 335 U.S. 520;
LILLIE V. THOMPSON, 332 U.S. 459.  THE ANSWERS TO THESE TWO
INTERROGATORIES ARE THEREFORE NOT CONTROLLING FOR FEDERAL EMPLOYERS'
LIABILITY ACT PURPOSES. 

IN THE SECOND PLACE, IN DECIDING WHETHER RESPONDENT HAD REASON TO
ANTICIPATE AND FORESEE ANY HARM TO PETITIONER, THE TRIAL COURT
INSTRUCTED THE JURY TO TAKE INTO ACCOUNT "THE PAST EXPERIENCE
RESPECTING THE LOCATION AND CONDITIONS IN QUESTION" AND THE FACT "THAT
NO OCCURRENCE OF THE KIND HERE ALLEGED EITHER OCCURRED, OR WAS KNOWN BY
DEFENDANT TO HAVE OCCURRED, AT OR NEAR THIS PLACE BEFORE AUGUST OF
1954."  (FN9)  THE JURY THUS MIGHT HAVE DETERMINED THAT, SINCE THERE
HAD BEEN NO SIMILAR INCIDENTS AT THIS POOL IN THE PAST, THE RESPONDENT
HAD NO SPECIFIC "REASON" FOR ANTICIPATING A MISHAP OR INJURY TO
PETITIONER - A FAR TOO NARROW A CONCEPT OF FORESEEABLE HARM TO NEGATIVE
NEGLIGENCE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  THUS THERE IS A
SECOND AND INDEPENDENT GROUND FOR THE COURT TO HAVE PUT ASIDE NO. 20 AS
IMMATERIAL.  LOOKING AT NO. 20 IN THE CONTEXT OF THE CHARGE AND THE
TOTAL CONTEXT OF THE SPECIAL VERDICT, SEE MCVEY V. PHILLIPS CO., 288
F.2D 53, 59 (C.A. 5TH CIR.); HALPRIN V. MORA, 231 F.2D 197, 201 (C.A.
3D CIR.), WE CANNOT ASSIGN IT SUFFICIENT WEIGHT TO WARRANT OVERTURNING
THE JUDGMENT OF THE TRIAL COURT ENTERED PURSUANT TO THE JURY'S SPECIAL
VERDICT. 

WE HAVE EXAMINED RESPONDENT'S OTHER CONTENTIONS AND FOUND THEM
WITHOUT MERIT, INCLUDING THE CONTENTION THAT THERE WAS INSUFFICIENT
EVIDENCE TO SUPPORT THE FINDING OF NEGLIGENCE.  THE COURT OF APPEALS
ERRED IN DEPRIVING PETITIONER OF THE JUDGMENT ENTERED UPON THE SPECIAL
VERDICT OF THE JURY.  ARNOLD V. PANHANDLE & S.F.R. CO., 353 U.S. 360. 
THE JUDGMENT OF THE OHIO COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  35 STAT. 65, AS AMENDED, 45 U.S.C. SEC. 51. 

FN2  FOR THE SAME REASON THE COURT OF APPEALS FOUND ERROR IN THE
TRIAL COURT'S REFUSAL TO ENTER A JUDGMENT N.O.V.  SEE JOURNAL ENTRY, R.
629. 

FN3  THE COURT OF APPEALS EMPHASIZED THE FACT THAT NO SIMILAR BITE
WAS EVER COMPLAINED ABOUT, AS A FACTOR IN GAUGING THE PROBABILITY THAT
THE ACTUAL CAUSAL CHAIN CORRESPONDED TO PETITIONER'S THEORY OF THE
CASE, 173 N.E.2D, AT 387; IT ACCEPTED AS SUPPORTED BY "SUFFICIENT
CREDIBLE EVIDENCE" THE FINDING THAT AN INSECT BIT PETITIONER, BUT IT
DISAGREED WITH THE FINDING THAT POOL AND INSECT BITE WERE RELATED. 
ALTHOUGH THE RECORD DOES NOT SHOW THAT ANY COMPLAINT WAS EVER MADE TO
RESPONDENT ABOUT INSECT BITES, PETITIONER TESTIFIED THAT HE HAD
COMPLAINED TO THE SECTION FOREMAN ABOUT THE VERMIN-INFESTED POOL
SEVERAL TIMES AND ANOTHER WITNESS TESTIFIED THAT HE WAS BITTEN BY AN
INSECT NEAR IT IN OR ABOUT SEPTEMBER 1954. 

FN4  SEE B.F. GOODRICH CO. V. UNITED STATES, 321 U.S. 126, 127;
UNITED STATES V. AMERICAN R. EXP.  CO., 265 U.S. 425, 435; FREY & SON,
INC., V. CUDAHY PACKING CO., 256 U.S. 208, 210. 

FN5  KERNAN V. AMERICAN DREDGING CO., 355 U.S. 426, WAS CONCERNED
WITH THE BREACH OF A STATUTORY OR REGULATORY DUTY AND DOES NOT CONTROL
OR PURPORT TO DEFINE THE CONTENT OF NONSTATUTORY OR NONREGULATORY
DUTIES AMOUNTING TO NEGLIGENCE FOR THE PURPOSES OF THE FEDERAL
EMPLOYERS' LIABILITY ACT. 

FN6  "NEGLIGENCE IS SOMETIMES SAID TO BE A FAILURE TO OBSERVE FOR THE
PROTECTION OF THE RIGHTS OF OTHERS THAT DEGREE OF CARE, PRECAUTION, AND
VIGILANCE WHICH THE CIRCUMSTANCES JUSTLY DEMAND, AND SOMETIMES, IN
OTHER WORDS, IT IS SAID THAT NEGLIGENCE IS THE FAILURE TO OBSERVE
ORDINARY CARE, AND ORDINARY CARE IS THAT DEGREE OF CARE WHICH PEOPLE OF
ORDINARY PRUDENCE AND SAGACITY USE UNDER THE SAME OR SIMILAR
CIRCUMSTANCES.  WHAT WOULD ORDINARILY PRUDENT PERSONS HAVE DONE UNDER
LIKE CIRCUMSTANCES?" 

FN7  "THE B&O IN THIS CASE WAS NOT REQUIRED TO GUARD AGAINST THAT
WHICH A REASONABLY PRUDENT PERSON, UNDER THE CIRCUMSTANCES, WOULD NOT
ANTICIPATE AS LIKELY TO HAPPEN.  IF A PERSON HAS NO REASONABLE GROUND
TO ANTICIPATE THAT A PARTICULAR CONDITION  ... WOULD OR MIGHT RESULT IN
A MISHAP AND INJURY, THEN THE PARTY IS NOT REQUIRED TO DO ANYTHING TO
CORRECT SUCH A CONDITION.  YOU MUST APPLY THIS RULE TO THIS CASE  ...
.  DEFENDANT'S DUTIES ARE MEASURED BY WHAT IS REASONABLY FORESEEABLE
UNDER LIKE CIRCUMSTANCES  ...  .  IN MEASURING THE B&O'S CONDUCT HERE,
THE POINT OF VIEW TO BE TAKEN SHOULD BE THE VIEW BEFORE THE MISHAP
OCCURRED, TO SEE WHAT, IN THE LIGHT OF THE FACTS THEN KNOWN, SHOULD OR
COULD REASONALBY HAVE BEEN ANTICIPATED.  AND YOU MUST FOLLOW THIS RULE
IN THIS CASE." 

FN8  "IF THE ACTOR'S CONDUCT IS A SUBSTANTIAL FACTOR IN BRINGING
ABOUT HARM TO ANOTHER, THE FACT THAT THE ACTOR NEITHER FORESAW NOR
SHOULD HAVE FORESEEN THE EXTENT OF THE HARM OR THE MANNER IN WHICH IT
OCCURRED DOES NOT PREVENT HIM FROM BEING LIABLE."  RESTATEMENT, TORTS,
SEC. 435.  "IN THESE AND LIKE CASES OF WHAT WELL MAY BE CALLED DIRECT
CONSEQUENCES, THE COURTS GENERALLY HOLD DEFENDANT LIABLE FOR THE FULL
EXTENT OF THE INJURY WITHOUT REGARD TO FORESEEABILITY."  2 HARPER AND
JAMES, TORTS, P. 1140.  "THERE IS ALMOST UNIVERSAL AGREEMENT UPON  ...
LIABILITY FOR UNFORESEEABLE CONSEQUENCES WHEN THEY FOLLOW AN IMPACT
UPON THE PERSON OF THE PLAINTIFF."  PROSSER, TORTS, 260. 

FN9  "IN MEASURING THE B&O'S DUTY TO ANTICIPATE - THAT IS, IN
CONSIDERING HOW MUCH AND HOW FAR THE DEFENDANT OUGHT TO HAVE GONE IN
FORESEEING AND GUARDING AGAINST POSSIBLE MISHAPS AND DANGERS - THE PAST
EXPERIENCE RESPECTING THE LOCATION AND CONDITIONS IN QUESTION MAY
PROPERLY BE DRAWN UPON.  IT IS ENTIRELY PROPER IN THIS CASE TO TAKE
INTO ACCOUNT THE FACT  ...  THAT NO OCCURRENCE OF THE KIND HERE ALLEGED
EITHER OCCURRED, OR WAS KNOWN BY DEFENDANT TO HAVE OCCURRED, AT OR NEAR
THIS PLACE BEFORE AUGUST OF 1954, AS  ...  INDICATING WHAT THE
DEFENDANT HERE SHOULD REASONABLY HAVE FORESEEN FOR THE FUTURE." 

MR. JUSTICE HARLAN, DISSENTING. 

HEARTRENDING AS THE PETITIONER'S ACCIDENT HAS TURNED OUT TO BE, I
THINK THIS CASE SHOULD NOT HAVE BEEN BROUGHT HERE.  IT INVOLVES NO
UNSETTLED QUESTIONS OF FEDERAL LAW CALLING FOR DECISION BY THIS COURT,
NOR, IN ANY ACCEPTABLE SENSE, A DEPARTURE BY THE STATE COURTS FROM
LEGAL PRINCIPLES ALREADY DECIDED REQUIRING THIS COURT'S INTERVENTION. 
THE CASE THUS DOES NOT QUALIFY FOR REVIEW UNDER RULE 19.*  SEE THE
DISSENTING OPINION OF MR. JUSTICE FRANKFURTER IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, AND THE SEPARATE OPINION OF THIS
WRITER, P. 559.  THE CASE HAS NECESSARILY REQUIRED AN INORDINATE AMOUNT
OF TIME, WHICH THE COURT CAN ILL AFFORD IN THE PRESENT STATE OF ITS
DOCKET.    *IN PERTINENT PART, RULE 19 PROVIDES: 

"1.  A REVIEW ON WRIT OF CERTIORARI IS NOT A MATTER OF RIGHT, BUT OF
SOUND JUDICIAL DISCRETION, AND WILL BE GRANTED ONLY WHERE THERE ARE
SPECIAL AND IMPORTANT REASONS THEREFOR.  THE FOLLOWING, WHILE NEITHER
CONTROLLING NOR FULLY MEASURING THE COURT'S DISCRETION, INDICATE THE
CHARACTER OF REASONS WHICH WILL BE CONSIDERED: 

"(A)  WHERE A STATE COURT HAS DECIDED A FEDERAL QUESTION OF SUBSTANCE
NOT THERETOFORE DETERMINED BY THIS COURT, OR HAS DECIDED IT IN A WAY
PROBABLY NOT IN ACCORD WITH APPLICABLE DECISIONS OF THIS COURT  ...
." 

REACHING THE MERITS, HOWEVER, ID., PP. 559-562, I WOULD AFFIRM THE
JUDGMENT BELOW.  I AGREE WITH MY BROTHERS STEWART AND GOLDBERG AS TO
THE INCONSISTENCY OF THE JURY'S VERDICT.  BUT IN ADDITION, I CANNOT SAY
THAT THE VIEW OF THE RECORD TAKEN BY THE STATE COURTS, IN HOLDING THAT
THE EVIDENCE ON THE ISSUE OF CAUSATION WAS INSUFFICIENT TO MAKE A CASE
FOR THE JURY, WAS AN ARBITRARY OR UNREASONABLE ONE.  THE OPINION OF THE
OHIO COURT OF APPEALS EVINCES A CONSCIENTIOUS EFFORT TO FOLLOW THIS
COURT'S DECISIONS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, AND MORE
PARTICULARLY THE BROAD PRONOUNCEMENTS MADE IN THE ROGERS CASE, SUPRA.
ON THIS SCORE THE COURT'S REVERSAL SEEMS TO ME NO MORE THAN AN EXERCISE
IN SECOND-GUESSING THE STATE COURT'S ESTIMATE OF THE RECORD. 

FROM ANOTHER STANDPOINT THIS CASE DOES HAVE SIGNIFICANCE.  IT AFFORDS
A PARTICULARLY DRAMATIC EXAMPLE OF THE INADEQUACY OF ORDINARY
NEGLIGENCE LAW TO MEET THE SOCIAL OBLIGATIONS OF MODERN INDUSTRIAL
SOCIETY.  THE CURE FOR THAT, HOWEVER, LIES WITH THE LEGISLATURE AND NOT
WITH THE COURTS. 

MR. JUSTICE STEWART AND MR. JUSTICE GOLDBERG, DISSENTING. 

WE CANNOT AGREE WITH THE COURT'S DISPOSITION OF THIS CASE, IN VIEW OF
THE JURY'S EXPLICIT FINDING THAT INJURY TO THE PETITIONER WAS NOT
REASONABLY FORESEEABLE.  AS THE COURT CORRECTLY STATES, "FORESEEABILITY
OF HARM IS AN ESSENTIAL INGREDIENT OF FEDERAL EMPLOYERS' LIABILITY ACT
NEGLIGENCE."  INTERROGATORY NO. 20 WAS UNAMBIGUOUS:  "WAS THERE ANY
REASON FOR THE DEFENDANT B&O TO ANTICIPATE THAT SUCH MAINTENANCE OF A
STAGNANT, INFESTED POOL WOULD OR MIGHT PROBABLY RESULT IN A MISHAP OR
AN INJURY?"  IN OUR VIEW THE JURY'S ANSWER TO THIS INTERROGATORY,
FINDING THAT THE RAILROAD HAD NO REASON HERE TO ANTICIPATE MISHAP OR
INJURY, WAS IRRECONCILABLY INCONSISTENT WITH ITS FINDING OF NEGLIGENCE
IN ANSWER TO INTERROGATORY NO. 16, AND A NEW TRIAL SHOULD HAVE BEEN
ORDERED. 

THE COURT AGREES THAT THE ANSWER TO INTERROGATORY NO. 20 WAS
INCONSISTENT WITH THE JURY'S ANSWER TO INTERROGATORY NO. 16.  BUT
INSTEAD OF CONCLUDING THAT THIS INCONSISTENCY CANCELS OUT THE SEVERAL
FINDINGS INVOLVED AND THUS VOIDS THE ENTIRE VERDICT, THE COURT
UNDERTAKES TO SEARCH FOR AN ALTERNATIVE MEANING TO BE GIVEN TO
INTERROGATORY NO. 20 IN ORDER TO BRING IT INTO LINE WITH THE SPECIAL
FINDING WHICH FAVORS THE PETITIONER.  THE COURT SEEKS SUPPORT FOR THIS
PROCRUSTEAN EXERCISE IN THE OFTEN-REPEATED ADMONITION THAT COURTS
SHOULD MAKE EVERY EFFORT "TO RECONCILE THE JURY'S FINDINGS, BY EXEGESIS
IF NECESSARY,  ...  BEFORE WE ARE FREE TO DISREGARD THE JURY'S SPECIAL
VERDICT AND REMAND THE CASE FOR A NEW TRIAL."  WE THINK THIS GENERALLY
SOUND GUIDELINE IS MISAPPLIED IN THE PRESENT CASE. 

THE DUTY OF COURTS TO ATTEMPT TO RECONCILE INCONSISTENT JURY FINDINGS
HAS EMERGED FROM CASES IN WHICH THE JURY ANSWERED SPECIAL
INTERROGATORIES AND ALSO RETURNED A GENERAL VERDICT.  SEE, E.G., ARNOLD
V. PANHANDLE & S.F.R. CO., 353 U.S. 360.  (FN1) 

THE INCONSISTENCIES WHICH THE COURTS HAVE DEALT WITH IN THESE CASES
WERE INCONSISTENCIES BETWEEN A GENERAL VERDICT FOR ONE OF THE PARTIES
AND SEEMINGLY CONFLICTING SPECIAL FINDINGS IN ANSWER TO ADDED
INTERROGATORIES.  THE PURPOSE OF SUCH AN EFFORT HAS BEEN TO PRESERVE,
IF POSSIBLE, THE INTEGRITY OF THE JURY'S GENERAL VERDICT.  AS ONE
LEADING COMMENTATOR HAS EXPLAINED, IN THE CONTEXT OF FEDERAL RULE
49(B): 

"THE POWER TO ENTER JUDGMENT ON FINDINGS CONSISTENT WITH EACH OTHER
BUT INCONSISTENT WITH THE GENERAL VERDICT IS A CONSTITUTIONAL ONE AND
DOES NOT VIOLATE THE SEVENTH AMENDMENT SINCE THE JURY'S FINDINGS OF
FACT ARE NOT BEING RE-EXAMINED BUT, AS A REASONABLE REGULATION OF
PRACTICE, THEIR MORE SPECIFIC FINDINGS OF FACT ARE ALLOWED TO CONTROL
OVER THEIR GENERAL CONCLUSION EMBODIED IN THE GENERAL VERDICT.  EVERY
REASONABLE INTENDMENT SHOULD, HOWEVER, BE INDULGED IN FAVOR OF THE
GENERAL VERDICT IN AN EFFORT TO HARMONIZE IT WITH THE ANSWERS TO THE
INTERROGATORIES, AND THE LATTER SHOULD BE HELD CONTROLLING ONLY 'WHERE
THE CONFLICT ON A MATERIAL QUESTION IS BEYOND RECONCILIATION ON ANY
REASONABLE THEORY CONSISTENT WITH THE EVIDENCE AND ITS FAIR
INFERENCES.'  OF COURSE, IF THE ANSWERS ARE INCONSISTENT WITH EACH
OTHER, AND ONE OR MORE WITH THE GENERAL VERDICT, THE COURT CANNOT ENTER
JUDGMENT UPON THE BASIS OF ANY OF THE FINDINGS, AND AS PROVIDED BY THE
RULE, SHOULD NOT DIRECT THE ENTRY OF JUDGMENT AT ALL, BUT SHOULD RETURN
THE JURY FOR FURTHER DELIBERATION OR SHOULD ORDER A NEW TRIAL."  5
MOORE, FEDERAL PRACTICE, PARA. 49.04. 

ALTHOUGH THE COURT SEVERAL TIMES MENTIONS A "SPECIAL VERDICT" OF THE
JURY, THIS REFERS TO NO MORE THAN THE ANSWERS GIVEN TO THE
INTERROGATORIES.  THE FACT IS THAT THE JURY RETURNED NO GENERAL VERDICT
FOR EITHER PARTY.  THE JURY SIMPLY ANSWERED A LIST OF 23 SPECIFIC
QUESTIONS, AND THEIR ANSWERS NEITHER WERE, NOR UNDER ANY FAIR READING
CAN BE MADE, CONSISTENT.  NOTHING IN THE STRUCTURE OF THE JURY'S
SEVERAL FINDINGS MARKS THE ANSWER TO INTERROGATORY NO. 20 AS THE ONE
WHICH IS OBVIOUSLY OUT OF LINE.  IT WOULD BE AS PLAUSIBLE - AND AS
INCORRECT - TO SAY THAT THE FINDING IN RESPONSE TO INTERROGATORY NO. 16
MUST BE READ TO CONFORM TO THE ANSWER TO INTERROGATORY NO. 20, AND TO
ENTER JUDGMENT FOR THE RESPONDENT.  (FN2) 

WE AGREE WITH THE COURT, AND HENCE DISAGREE WITH OUR BROTHER HARLAN,
ABOUT THE SUFFICIENCY OF THE EVIDENCE ON THE ISSUE OF CAUSATION TO MAKE
A CASE FOR THE JURY UNDER THE STANDARDS LAID DOWN BY THIS COURT, E.G.,
ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500.  WE ALSO AGREE WITH THE
COURT THAT NO INCONSISTENCY WITH A FINDING OF NEGLIGENCE ARISES FROM
THE JURY'S ANSWER TO INTERROGATORY NO. 22, WHEREIN IT FOUND THAT THE
RAILROAD HAD NO REASON TO ANTICIPATE THE EXTENT OF THE PETITIONER'S
INJURIES.  IN OUR VIEW THE ANSWER TO INTERROGATORY NO. 22 WAS SIMPLY
IMMATERIAL, BECAUSE THE INTERROGATORY ASKED, IN EFFECT, WHETHER THE
EXTENT OF THE PETITIONER'S INJURIES WAS FORESEEABLE - AN ISSUE
IRRELEVANT TO THE MERITS OF THE CASE, AS THE COURT'S OPINION APTLY
POINTS OUT. 

OUR DISAGREEMENT WITH THE COURT ARISES, THEREFORE, ONLY FROM ITS
TREATMENT OF THE JURY'S ANSWER TO INTERROGATORY NO. 20.  SINCE, AS THE
COURT RECOGNIZES, FORESEEABILITY OF HARM (AS DISTINGUISHED FROM
FORESEEABILITY OF THE EXTENT OF INJURY COVERED BY INTERROGATORY NO. 22)
IS THE TEST OF LIABILITY IN FELA CASES, THE JURY'S ANSWER TO
INTERROGATORY NO. 20 IS PLAINLY AND IRRECONCILABLY INCONSISTENT WITH
ITS ANSWER TO INTERROGATORY NO. 16.  (FN3)  BECAUSE THE JURY IN ANSWER
TO NO. 16 FOUND THAT THE RAILROAD WAS NEGLIGENT, AND YET AT THE SAME
TIME SPECIFICALLY FOUND IN ANSWER TO NO. 20 THAT THE MISHAP WAS
UNFORESEEABLE, IT IS, IN OUR VIEW, IMPOSSIBLE TO ENTER A JUDGMENT FOR
EITHER PARTY BASED ON THESE FINDINGS.  BY UNDERTAKING TO RECONCILE
IRRETRIEVABLY CONFLICTING FINDINGS OF THE JURY, THE COURT, WE THINK,
HAS MADE THE SAME ERROR THAT IT CORRECTLY ATTRIBUTES TO THE OHIO COURT
OF APPEALS - IT HAS INVADED THE PROVINCE OF THE JURY UNDER THIS FEDERAL
STATUTE.  WE WOULD AVOID SUCH AN INTRUSION BY ORDERING THAT THE CAUSE
BE PUT TO ANOTHER JURY. 

FOR THESE REASONS WE WOULD SET ASIDE THE JUDGMENT AND REMAND THIS
CASE FOR A NEW TRIAL. 

FN1  ATLANTIC & GULF STEVEDORES, INC., V. ELLERMAN LINES, LTD., 369
U.S. 355, IS NOT TO THE CONTRARY.  IN THAT CASE IT WAS HELD THAT THE
COURT OF APPEALS HAD ERRONEOUSLY SYNTHESIZED A CONFLICT BETWEEN ANSWERS
TO SPECIAL INTERROGATORIES, WHEN NO CONFLICT APPEARED ON THE FACE OF
THE SEVERAL ANSWERS, AND NONE WAS COMPELLED BY THE THEORIES UNDERLYING
THE SEVERAL QUESTIONS. 

FN2  INDEED, WERE IT PROPER TO INDULGE IN A PROCESS OF SPECULATION TO
DERIVE MEANING FOR ONE ANSWER FROM THE CONTENT OF OTHERS - AS THE
MAJORITY DOES TO SUPPORT ITS CONCLUSION THAT THE ANSWER TO
INTERROGATORY NO. 16 IS THE OVERRIDING ONE - SUPPORT FOR PREFERRING THE
ANSWER TO INTERROGATORY NO. 20 AND ENTERING JUDGMENT FOR RESPONDENT
COULD BE GAINED FROM THE JURY'S RESPONSE TO INTERROGATORY NO. 13,
WHEREIN IT COULD NOT AGREE ON WHETHER PETITIONER HAD BEEN FURNISHED AN
UNSAFE PLACE TO WORK, THEREBY FURTHER CONTRADICTING THE EXISTENCE OF
NEGLIGENCE WHICH WAS FOUND IN ANSWER TO INTERROGATORY NO. 16. 

FN3  REFERENCE TO THE COURT'S ORAL INSTRUCTIONS TO THE JURY
CONCERNING INTERROGATORIES NOS. 16 AND 20 ADDITIONALLY NEGATIVES THE
COURT'S ATTEMPTED RECONCILIATION OF THE JURY'S ANSWERS TO THESE
QUESTIONS.  THE DESCRIPTION OF NEGLIGENCE IN NO. 16 WAS MERELY A
STATEMENT CAST IN TERMS OF A "FAILURE TO OBSERVE ORDINARY CARE,"
WITHOUT ANY SUGGESTION THAT THE "FAILURE TO OBSERVE FOR THE PROTECTION
OF THE RIGHTS OF OTHERS THAT DEGREE OF CARE, PRECAUTION, AND VIGILANCE
WHICH THE CIRCUMSTANCES JUSTLY DEMAND" HAD TO BE A FAILURE IN RELATION
TO THIS PLAINTIFF.  IN CONTRAST TO THE NEGLIGENCE IN THE ABSTRACT WHICH
THE JURY CAN BE SAID TO HAVE FOUND IN ANSWER TO INTERROGATORY NO. 16,
THE JUDGE INSTRUCTED WITH REFERENCE TO INTERROGATORY NO. 20 THAT "IN
ANSWERING THIS QUESTION YOU ARE INSTRUCTED THAT IT IS A MATTER OF LAW
(THAT) THE DEFENDANT B&O IS ONLY TO BE HELD TO A REASONABLE DEGREE OF
CARE, AND NOT TO THE PERFORMANCE OF PRACTICABLE IMPOSSIBILITIES, BUT
THAT WHERE THE PROOFS JUSTIFY WITH REASON THE CONCLUSION THAT THE
EMPLOYER'S NEGLIGENCE PLAYED ANY PART, EVEN THE SLIGHTEST, INTRODUCING
(IN PRODUCING?)  THE INJURY, THEN THE EMPLOYER HAS A DUTY TO ANTICIPATE
THAT SUCH INJURY WOULD OR MIGHT PROBABLY RESULT."  THIS INSTRUCTION
DEALT WITH THE DEFENDANT RAILROAD'S DUTIES AS AN EMPLOYER IN RELATION
TO THE PETITIONER IN A MANNER WHICH THE INSTRUCTION CONCERNING
INTERROGATORY NO. 16 HAD NOT.  MOREOVER, IT WAS, IF ANYTHING, UNDULY
FAVORABLE TO PETITIONER IN ITS EQUATION OF FORESEEABILITY WITH
CAUSATION IN FACT, AND YET THE JURY ANSWERED INTERROGATORY NO. 20 IN
THE NEGATIVE. 
..END :























SCHLUDE V. COMMISSIONER OF INTERNAL REVENUE 372 U.S. 128 


NO. 80.  ARGUED DECEMBER 10, 1962.  - DECIDED FEBRUARY 18, 1963.  - 296
F.2D 721, AFFIRMED IN PART, REVERSED IN PART AND REMANDED. 


PETITIONERS, WHO OPERATED DANCE STUDIOS, KEPT THEIR BOOKS AND MADE
THEIR INCOME TAX RETURNS ON A FISCAL-YEAR ACCRUAL BASIS.  THEY OBTAINED
FROM STUDENTS CONTRACTS FOR DANCING LESSONS OVER PERIODS OF YEARS, TO
BE PAID FOR PARTLY IN CASH AND PARTLY IN INSTALLMENTS, SOMETIMES
REPRESENTED BY NEGOTIABLE NOTES WHICH WERE DISCOUNTED AT BANKS.  FOR
THE YEARS 1952, 1953 AND 1954, THEY REPORTED AS GROSS INCOME ONLY THAT
PORTION OF THE ADVANCE PAYMENTS RECEIVED IN CASH AND THE AMOUNTS OF
NOTES AND CONTRACTS EXECUTED DURING THE RESPECTIVE YEARS WHICH
CORRESPONDED WITH THE NUMBER OF HOURS TAUGHT.  THE BALANCE WAS RESERVED
FOR ACCRUAL IN FUTURE YEARS WHEN ADDITIONAL LESSONS WERE TAUGHT, WAIVED
OR FORFEITED.  HELD:  IT WAS PROPER FOR THE COMMISSIONER, IN THE
EXERCISE OF HIS DISCRETION UNDER SEC. 41 OF THE INTERNAL REVENUE CODE
OF 1939 AND SEC. 446(B) OF THE INTERNAL REVENUE CODE OF 1954, TO REJECT
PETITIONERS' ACCOUNTING SYSTEM AS NOT CLEARLY REFLECTING INCOME AND TO
INCLUDE AS INCOME IN A PARTICULAR YEAR ADVANCE PAYMENTS BY WAY OF CASH,
NEGOTIABLE NOTES AND CONTRACT INSTALLMENTS FALLING DUE BUT REMAINING
UNPAID DURING THAT YEAR.  AMERICAN AUTOMOBILE ASSOCIATION V. UNITED
STATES, 367 U.S. 687.  PP. 129-137. 

SCHLUDE ET UX. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS IS STILL ANOTHER CHAPTER IN THE PROTRACTED PROBLEM OF THE TIME
CERTAIN ITEMS ARE TO BE RECOGNIZED AS INCOME FOR THE PURPOSES OF THE
FEDERAL INCOME TAX.  THE COMMISSIONER OF INTERNAL REVENUE INCREASED THE
1952, 1953 AND 1954 ORDINARY INCOME OF THE TAXPAYERS (FN1) BY INCLUDING
IN GROSS INCOME FOR THOSE YEARS AMOUNTS RECEIVED OR RECEIVABLE UNDER
CONTRACTS EXECUTED DURING THOSE YEARS DESPITE THE FACT THAT THE
CONTRACTS OBLIGATED TAXPAYERS TO RENDER PERFORMANCE IN SUBSEQUENT
PERIODS.  THESE INCREASES PRODUCED TAX DEFICIENCIES WHICH THE TAXPAYERS
UNSUCCESSFULLY CHALLENGED IN THE TAX COURT ON THE GROUND THAT THE
AMOUNTS COULD BE DEFERRED UNDER THEIR ACCOUNTING METHOD.  ON APPEAL,
THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT AGREED WITH THE TAXPAYERS
AND REVERSED THE TAX COURT, 283 F.2D 234, THE DECISION HAVING BEEN
RENDERED PRIOR TO OURS IN AMERICAN AUTOMOBILE ASSN. V. UNITED STATES,
367 U.S. 687.  FOLLOWING THE AMERICAN AUTOMOBILE ASSOCIATION CASE,
CERTIORARI IN THIS CASE WAS GRANTED, THE JUDGMENT OF THE LOWER COURT
VACATED, 367 U.S. 911, AND THE CAUSE REMANDED FOR FURTHER CONSIDERATION
IN LIGHT OF AMERICAN AUTOMOBILE ASSOCIATION.  368 U.S. 873.  IN A PER
CURIAM OPINION, THE COURT OF APPEALS HELD THAT IN VIEW OF AMERICAN
AUTOMOBILE ASSOCIATION, THE TAXPAYERS' ACCOUNTING METHOD "DOES NOT, FOR
INCOME TAX PURPOSES, CLEARLY REFLECT INCOME" AND AFFIRMED THE JUDGMENT
FOR THE COMMISSIONER, 296 F.2D 721.  WE BROUGHT THE CASE BACK ONCE
AGAIN TO CONSIDER WHETHER THE LOWER COURT MISAPPREHENDED THE SCOPE OF
AMERICAN AUTOMOBILE ASSOCIATION.  370 U.S. 902. 

TAXPAYERS, HUSBAND AND WIFE, FORMED A PARTNERSHIP TO OPERATE BALLROOM
DANCING STUDIOS (COLLECTIVELY REFERRED TO AS "STUDIO") PURSUANT TO
ARTHUR MURRAY, INC., FRANCHISE AGREEMENTS.  DANCING LESSONS WERE
OFFERED UNDER EITHER OF TWO BASIC CONTRACTS.  THE CASH PLAN CONTRACT
REQUIRED THE STUDENT TO PAY THE ENTIRE DOWN PAYMENT IN CASH AT THE TIME
THE CONTRACT WAS EXECUTED WITH THE BALANCE DUE IN INSTALLMENTS
THEREAFTER.  THE DEFERRED PAYMENT CONTRACT REQUIRED ONLY A PORTION OF
THE DOWN PAYMENT TO BE PAID IN CASH.  THE REMAINDER OF THE DOWN PAYMENT
WAS DUE IN STATED INSTALLMENTS AND THE BALANCE OF THE CONTRACT PRICE
WAS TO BE PAID AS DESIGNATED IN A NEGOTIABLE NOTE SIGNED AT THE TIME
THE CONTRACT WAS EXECUTED. 

BOTH TYPES OF CONTRACTS PROVIDED THAT (1) THE STUDENT SHOULD PAY
TUITION FOR LESSONS IN A CERATIN AMOUNT, (2) THE STUDENT SHOULD NOT BE
RELIEVED OF HIS OBLIGATION TO PAY THE TUITION, (3) NO REFUNDS WOULD BE
MADE, AND (4) THE CONTRACT WAS NONCANCELABLE.  (FN2)  THE CONTRACTS
PRESCRIBED A SPECIFIC NUMBER OF LESSON HOURS RANGING FROM FIVE TO 1,200
HOURS AND SOME CONTRACTS PROVIDED LIFETIME COURSES ENTITLING THE
STUDENT ADDITIONALLY TO TWO HOURS OF LESSONS PER MONTH PLUS TWO PARTIES
A YEAR FOR LIFE.  ALTHOUGH THE CONTRACTS DESIGNATED THE PERIOD DURING
WHICH THE LESSONS HAD TO BE TAKEN, THERE WAS NO SCHEDULE OF SPECIFIC
DATES, WHICH WERE ARRANGED FROM TIME TO TIME AS LESSONS WERE GIVEN. 

CASH PAYMENTS RECEIVED DIRECTLY FROM STUDENTS AND AMOUNTS RECEIVED
WHEN THE NEGOTIABLE NOTES WERE DISCOUNTED AT THE BANK OR FULLY PAID
(FN3) WERE DEPOSITED IN THE STUDIO'S GENERAL BANK ACCOUNT WITHOUT
SEGREGATION FROM ITS OTHER FUNDS.  THE FRANCHISE AGREEMENTS REQUIRED
THE STUDIO TO PAY TO ARTHUR MURRAY, INC., ON A WEEKLY BASIS, 10% OF
THESE CASH RECEIPTS AS ROYALTY AND 5% OF THE RECEIPTS IN ESCROW, THE
LATTER TO CONTINUE UNTIL A $20,000 INDEMNITY FUND WAS ACCUMULATED. 
SIMILARLY, SALES COMMISSIONS FOR LESSONS SOLD WERE PAID AT THE TIME THE
SALES RECEIPTS WERE DEPOSITED IN THE STUDIO'S GENERAL BANK ACCOUNT. 

THE STUDIO, SINCE ITS INCEPTION IN 1946, HAS KEPT ITS BOOKS AND
REPORTED INCOME FOR TAX PURPOSES (FN4) ON AN ACCRUAL SYSTEM OF
ACCOUNTING.  IN ADDITION TO THE BOOKS, INDIVIDUAL STUDENT RECORD CARDS
WERE MAINTAINED SHOWING THE NUMBER OF HOURS TAUGHT AND THE NUMBER STILL
REMAINING UNDER THE CONTRACT.  THE SYSTEM, IN SUBSTANCE, OPERATED AS
FOLLOWS.  WHEN A CONTRACT WAS ENTERED INTO, A "DEFERRED INCOME" ACCOUNT
WAS CREDITED FOR THE TOTAL CONTRACT PRICE.  AT THE CLOSE OF EACH FISCAL
PERIOD, THE STUDENT RECORD CARDS WERE ANALYZED AND THE TOTAL NUMBER OF
TAUGHT HOURS WAS MULTIPLIED BY THE DESIGNATED RATE PER HOUR OF EACH
CONTRACT.  THE RESULTING SUM WAS DEDUCTED FROM THE DEFERRED INCOME
ACCOUNT AND REPORTED AS EARNED INCOME ON THE FINANCIAL STATEMENTS AND
THE INCOME TAX RETURN.  IN ADDITION, IF THERE HAD BEEN NO ACTIVITY IN A
CONTRACT FOR OVER A YEAR, OR IF A COURSE WERE REDUCED IN AMOUNT, AN
ENTRY WOULD BE MADE CANCELING THE UNTAUGHT PORTION OF THE CONTRACT,
REMOVING THAT AMOUNT FROM THE DEFERRED INCOME ACCOUNT, AND RECOGNIZING
GAIN TO THE EXTENT THAT THE DEFERRED INCOME EXCEEDED THE BALANCE DUE ON
THE CONTRACT, I.E., THE AMOUNTS RECEIVED IN ADVANCE.  THE AMOUNTS
REPRESENTING LESSONS TAUGHT AND THE GAINS FROM CANCELLATIONS
CONSTITUTED THE CHIEF SOURCES OF THE PARTNERSHIP'S GROSS INCOME.  (FN5)
THE BALANCE OF THE DEFERRED INCOME ACCOUNT WOULD BE CARRIED FORWARD
INTO THE NEXT FISCAL YEAR TO BE INCREASED OR DECREASED IN ACCORDANCE
WITH THE NUMBER OF NEW CONTRACTS, LESSONS TAUGHT AND CANCELLATIONS
RECOGNIZED. 

DEDUCTIONS WERE ALSO REPORTED ON THE ACCRUAL BASIS EXCEPT THAT THE
ROYALTY PAYMENTS AND THE SALES COMMISSIONS WERE DEDUCTED WHEN PAID
IRRESPECTIVE OF THE PERIOD IN WHICH THE RELATED RECEIPTS WERE TAKEN
INTO INCOME.  THREE CERTIFIED PUBLIC ACCOUNTANTS TESTIFIED THAT IN
THEIR OPINION THE ACCOUNTING SYSTEM EMPLOYED TRULY REFLECTED NET INCOME
IN ACCORDANCE WITH COMMERCIAL ACCRUAL ACCOUNTING STANDARDS. 

THE COMMISSIONER INCLUDED IN GROSS INCOME FOR THE YEARS IN QUESTION
NOT ONLY ADVANCE PAYMENTS RECEIVED IN CASH BUT THE FULL FACE AMOUNTS OF
NOTES AND CONTRACTS EXECUTED DURING THE RESPECTIVE YEARS.  THE TAX
COURT AND THE COURT OF APPEALS UPHELD THE COMMISSIONER, BUT THE UNITED
STATES IN THIS COURT HAS RETREATED SOMEWHAT AND DOES NOT NOW CLAIM THE
INCLUDIBILITY IN GROSS INCOME OF FUTURE PAYMENTS WHICH WERE NOT
EVIDENCED BY A NOTE AND WHICH WERE NEITHER DUE BY THE TERMS OF THE
CONTRACT NOR MATURED BY PERFORMANCE OF THE RELATED SERVICES.  (FN6)
THE QUESTION REMAINING FOR DECISION, THEN, IS THIS:  WAS IT PROPER FOR
THE COMMISSIONER, EXERCISING HIS DISCRETION UNDER SEC. 41, (FN7) 1939
CODE, AND SEC. 446(B), (FN8) 1954 CODE, TO REJECT THE STUDIO'S
ACCOUNTING SYSTEM AS NOT CLEARLY REFLECTING INCOME AND TO INCLUDE AS
INCOME IN A PARTICULAR YEAR ADVANCE PAYMENTS BY WAY OF CASH, NEGOTIABLE
NOTES AND CONTRACT INSTALLMENTS FALLING DUE BUT REMAINING UNPAID DURING
THAT YEAR?  WE HOLD THAT IT WAS SINCE WE BELIEVE THE PROBLEM IS
SQUARELY CONTROLLED BY AMERICAN AUTOMOBILE ASSOCIATION, 367 U.S. 687. 

THE COURT THERE HAD OCCASION TO CONSIDER THE ENTIRE LEGISLATIVE
BACKGROUND OF THE TREATMENT OF PREPAID INCOME.  THE RETROACTIVE REPEAL
OF SEC. 452 OF THE 1954 CODE, "THE ONLY LAW INCONTESTABLY PERMITTING
THE PRACTICE UPON WHICH THE TAXPAYER DEPENDS," WAS REGARDED AS
REINSTATING LONG-STANDING ADMINISTRATIVE AND LOWER COURT RULINGS THAT
ACCOUNTING SYSTEMS DEFERRING PREPAID INCOME COULD BE REJECTED BY THE
COMMISSIONER. 

"THE FACT IS THAT SEC. 452 FOR THE FIRST TIME SPECIFICALLY DECLARED
PETITIONER'S SYSTEM OF ACCOUNTING TO BE ACCEPTABLE FOR INCOME TAX
PURPOSES, AND OVERRULED THE LONG-STANDING POSITION OF THE COMMISSIONER
AND COURTS TO THE CONTRARY.  AND THE REPEAL OF THE SECTION THE
FOLLOWING YEAR, UPON INSISTENCE BY THE TREASURY THAT THE PROPOSED
ENDORSEMENT OF SUCH TAX ACCOUNTING WOULD HAVE A DISASTROUS IMPACT ON
THE GOVERNMENT'S REVENUE, WAS JUST AS CLEARLY A MANDATE FROM THE
CONGRESS THAT PETITIONER'S SYSTEM WAS NOT ACCEPTABLE FOR TAX
PURPOSES."  367 U.S., AT 695. 

CONFIRMING THAT VIEW WAS THE STEP-BY-STEP APPROACH OF CONGRESS IN
GRANTING THE DEFERRAL PRIVILEGE TO ONLY LIMITED GROUPS OF TAXPAYERS
WHILE EXPLORING MORE DEEPLY THE RAMIFICATIONS OF THE ENTIRE PROBLEM. 

PLAINLY, THE CONSIDERATIONS EXPRESSED IN AMERICAN AUTOMOBILE
ASSOCIATION ARE APPOSITE HERE.  WE NEED ONLY ADD HERE THAT SINCE THE
AMERICAN AUTOMOBILE ASSOCIATION DECISION, A SPECIFIC PROVISION
EXTENDING THE DEFERRAL PRACTICE TO CERTAIN MEMBERSHIP CORPORATIONS WAS
ENACTED, SEC. 456, 1954 CODE, ADDED BY SEC. 1, ACT OF JULY 26, 1961, 75
STAT. 222, CONTINUING, AT LEAST SO FAR, THE CONGRESSIONAL POLICY OF
TREATING THIS PROBLEM BY PRECISE PROVISIONS OF NARROW APPLICABILITY. 
CONSEQUENTLY, AS IN THE AMERICAN AUTOMOBILE ASSOCIATION CASE, WE INVOKE
THE "LONG-ESTABLISHED POLICY OF THE COURT IN DEFERRING, WHERE POSSIBLE,
TO CONGRESSIONAL PROCEDURES IN THE TAX FIELD," AND, AS IN THAT CASE, WE
CANNOT SAY THAT THE COMMISSIONER'S REJECTION OF THE STUDIO'S DEFERRAL
SYSTEM WAS UNSOUND. 

THE AMERICAN AUTOMOBILE ASSOCIATION CASE RESTED UPON AN ADDITIONAL
GROUND WHICH IS ALSO CONTROLLING HERE.  RELYING UPON AUTOMOBILE CLUB OF
MICHIGAN V. COMMISSIONER, 353 U.S. 180, THE COURT REJECTED THE
TAXPAYER'S SYSTEM AS ARTIFICIAL SINCE THE ADVANCE PAYMENTS RELATED TO
SERVICES WHICH WERE TO BE PERFORMED ONLY UPON CUSTOMERS' DEMANDS
WITHOUT RELATION TO FIXED DATES IN THE FUTURE.  THE SYSTEM EMPLOYED
HERE SUFFERS FROM THAT VERY SAME VICE, FOR THE STUDIO SOUGHT TO DEFER
ITS CASH RECEIPTS ON THE BASIS OF CONTRACTS WHICH DID NOT PROVIDE FOR
LESSONS ON FIXED DATES AFTER THE TAXABLE YEAR, BUT LEFT SUCH DATES TO
BE ARRANGED FROM TIME TO TIME BY THE INSTRUCTOR AND HIS STUDENT.  UNDER
THE CONTRACTS, THE STUDENT COULD ARRANGE FOR SOME OR ALL OF THE
ADDITIONAL LESSONS OR COULD SIMPLY ALLOW THEIR RIGHTS UNDER THE
CONTRACTS TO LAPSE.  BUT EVEN THOUGH THE STUDENT DID NOT DEMAND THE
REMAINING LESSONS, THE CONTRACTS PERMITTED THE STUDIO TO INSIST UPON
PAYMENT IN ACCORDANCE WITH THE OBLIGATIONS UNDERTAKEN AND TO RETAIN
WHATEVER PREPAYMENTS WERE MADE WITHOUT RESTRICTION AS TO USE AND
WITHOUT OBLIGATION OF REFUND.  AT THE END OF EACH PERIOD, WHILE THE
NUMBER OF LESSONS TAUGHT HAD BEEN METICULOUSLY REFLECTED, THE STUDIO
WAS UNCERTAIN WHETHER NONE, SOME OR ALL OF THE REMAINING LESSONS WOULD
BE RENDERED.  CLEARLY, SERVICES WERE RENDERED SOLELY ON DEMAND IN THE
FASHION OF THE AMERICAN AUTOMOBILE ASSOCIATION AND AUTOMOBILE CLUB OF
MICHIGAN CASES.  (FN9) 

MOREOVER, PERCENTAGE ROYALTIES AND SALES COMMISSIONS FOR LESSONS
SOLD, WHICH WERE PAID AS CASH WAS RECEIVED FROM STUDENTS OR FROM ITS
NOTE TRANSACTIONS WITH THE BANK, WERE DEDUCTED IN THE YEAR PAID EVEN
THOUGH THE RELATED ITEMS OF INCOME HAD BEEN DEFERRED, AT LEAST IN PART,
TO LATER PERIODS.  IN VIEW OF ALL THESE CIRCUMSTANCES, WE HOLD THE
STUDIO'S ACCRUAL SYSTEM VULNERABLE UNDER SEC. 41 AND SEC. 446(B) WITH
RESPECT TO ITS DEFERRAL OF PREPAID INCOME.  CONSEQUENTLY, THE
COMMISSIONER WAS FULLY JUSTIFIED IN INCLUDING PAYMENTS IN CASH OR BY
NEGOTIABLE NOTE (FN10) IN GROSS INCOME FOR THE YEAR IN WHICH SUCH
PAYMENTS WERE RECEIVED.  IF THESE PAYMENTS ARE INCLUDIBLE IN THE YEAR
OF RECEIPT BECAUSE THEIR ALLOCATION TO A LATER YEAR DOES NOT CLEARLY
REFLECT INCOME, THE CONTRACT INSTALLMENTS ARE LIKEWISE INCLUDIBLE IN
GROSS INCOME, AS THE UNITED STATES NOW CLAIMS, IN THE YEAR THEY BECOME
DUE AND PAYABLE.  FOR AN ACCRUAL BASIS TAXPAYER "IT IS THE RIGHT TO
RECEIVE AND NOT THE ACTUAL RECEIPT THAT DETERMINES THE INCLUSION OF THE
AMOUNT IN GROSS INCOME," SPRING CITY CO. V. COMMISSIONER, 292 U.S. 182,
184; COMMISSIONER V. HANSEN, 360 U.S. 446, AND HERE THE RIGHT TO
RECEIVE THESE INSTALLMENTS HAD BECOME FIXED AT LEAST AT THE TIME THEY
WERE DUE AND PAYABLE. 

WE AFFIRM THE COURT OF APPEALS INSOFAR AS THAT COURT HELD INCLUDIBLE
THE AMOUNTS REPRESENTING CASH RECEIPTS, NOTES RECEIVED AND CONTRACT
INSTALLMENTS DUE AND PAYABLE.  BECAUSE OF THE COMMISSIONER'S
CONCESSION, WE REVERSE THAT PART OF THE JUDGMENT WHICH INCLUDED AMOUNTS
FOR WHICH SERVICES HAD NOT YET BEEN PERFORMED AND WHICH WERE NOT DUE
AND PAYABLE DURING THE RESPECTIVE PERIODS AND WE REMAND THE CASE WITH
DIRECTIONS TO RETURN THE CASE TO THE TAX COURT FOR A REDETERMINATION OF
THE PROPER INCOME TAX DEFICIENCIES NOW DUE IN LIGHT OF THIS OPINION. 
IT IS SO ORDERED. 

FN1  THE CONTROVERSY TURNS UPON THE ACCOUNTING METHOD EMPLOYED BY A
PARTNERSHIP IN WHICH THE TAXPAYERS WERE EQUAL PARTNERS.  SINCE A
PARTNERSHIP IS NOT A TAXABLE ENTITY, THE PARTNERS BEING LIABLE IN THEIR
INDIVIDUAL CAPACITIES FOR THEIR DISTRIBUTIVE SHARE OF PARTNERSHIP
INCOME, SEC. 181, INT. REV. CODE OF 1939; SEC. 701, INT. REV. CODE OF
1954, THE PROPER STATEMENT OF THE PARTNERSHIP'S INCOME AFFECTS ONLY THE
TAX LIABILITIES OF THE PARTNERS INDIVIDUALLY.  HOWEVER, AS THERE IS NO
OTHER DISPUTE IN THE CASE, FOR CONVENIENCE THE DISCUSSION WILL CENTER
UPON THE PARTNERSHIP'S ACCOUNTING METHOD WITHOUT FURTHER MENTION OF ITS
EFFECT UPON THE RESPECTIVE TAX LIABILITIES OF THE PARTNERS. 

FN2  ALTHOUGH THE CONTRACTS STATED THEY WERE NONCANCELABLE, THE
STUDIO FREQUENTLY REWROTE CONTRACTS REDUCING THE NUMBER OF LESSONS FOR
A SMALLER SUM OF MONEY.  ALSO, DESPITE THE FACT THAT THE CONTRACTS
PROVIDED THAT NO REFUNDS WOULD BE MADE, AND DESPITE THE FACT THAT THE
STUDIO DISCOURAGED REFUNDS, OCCASIONALLY A REFUND WOULD BE MADE ON A
CANCELED CONTRACT.    FN3  NOTES TAKEN FROM THE STUDENTS WERE
ORDINARILY TRANSFERRED, WITH FULL RECOURSE, TO A LOCAL BANK WHICH WOULD
DEDUCT THE INTEREST CHARGES AND CREDIT THE STUDIO WITH APPROXIMATELY
50% OF THE FACE AMOUNT.  THE REMAINING 50% WAS HELD IN A RESERVE
ACCOUNT UNAVAILABLE TO THE STUDIO, UNTIL THE NOTE WAS FULLY PAID, AT
WHICH TIME THE RESERVED AMOUNT WAS TRANSFERRED TO THE STUDIO'S GENERAL
BANK ACCOUNT. 

FN4  THOUGH THE STUDIO IS NOT A TAXABLE ENTITY, IT IS STILL REQUIRED
TO PREPARE AND FILE AN INFORMATION RETURN SHOWING, INTER ALIA, ITEMS OF
GROSS INCOME AND ALLOWABLE DEDUCTIONS.  SEC. 187, 1939 CODE; SEC. 6031,
1954 CODE.    FN5  THE FOLLOWING SCHEDULE REFLECTS ORDINARY NET INCOME
ON THE STUDIO'S BOOKS AND RETURNS: 

GROSS INCOME:      1952         1953          1954 

CONTRACT AMOUNTS TRANSFERRED TO EARNED 

INCOME                      $143,949.63  $243,277.46  $325,266.97 

GAINS FROM CANCELLATION       26,861.40    19,483.36    28,448.61 

OTHER INCOME    4,041.21    11,426.23    16,987.31 

TOTAL         174,852.24   274,187.05   370,702.89 

DEDUCTIONS                137,267.91   223,390.69   301,609.76 

ORDINARY NET INCOME           37,584.33    50,796.36    69,093.13 

FN6  "UPON RECONSIDERATION, HOWEVER, WE CONCEDE THE ERROR OF ACCRUING
FUTURE PAYMENTS WHICH ARE NEITHER DUE AS A MATTER OF CONTRACT, NOR
MATURED BY PERFORMANCE OF THE RELATED SERVICES.  INDEED, THE STUDIO'S
RIGHT TO COLLECT THE INSTALLMENT ON ITS DUE DATE DEPENDS ON ITS
CONTINUING ABILITY AND WILLINGNESS TO PERFORM.  UNTIL THAT TIME, ITS
RIGHT TO RECEIVE PAYMENT HAS NOT FULLY RIPENED."  BRIEF FOR THE UNITED
STATES, P. 67. 

FN7  "SEC.  41.  GENERAL RULE. 

"THE NET INCOME SHALL BE COMPUTED UPON THE BASIS OF THE TAXPAYER'S
ANNUAL ACCOUNTING PERIOD (FISCAL YEAR OR CALENDAR YEAR, AS THE CASE MAY
BE) IN ACCORDANCE WITH THE METHOD OF ACCOUNTING REGULARLY EMPLOYED IN
KEEPING THE BOOKS OF SUCH TAXPAYER; BUT IF NO SUCH METHOD OF ACCOUNTING
HAS BEEN SO EMPLOYED, OR IF THE METHOD EMPLOYED DOES NOT CLEARLY
REFLECT THE INCOME, THE COMPUTATION SHALL BE MADE IN ACCORDANCE WITH
SUCH METHOD AS IN THE OPINION OF THE COMMISSIONER DOES CLEARLY REFLECT
THE INCOME.  IF THE TAXPAYER'S ANNUAL ACCOUNTING PERIOD IS OTHER THAN A
FISCAL YEAR AS DEFINED IN SECTION 48 OR IF THE TAXPAYER HAS NO ANNUAL
ACCOUNTING PERIOD OR DOES NOT KEEP BOOKS, THE NET INCOME SHALL BE
COMPUTED ON THE BASIS OF THE CALENDAR YEAR." 

FN8  "SEC.  446.  GENERAL RULE FOR METHODS OF ACCOUNTING. 

"(A)  GENERAL RULE.  - TAXABLE INCOME SHALL BE COMPUTED UNDER THE
METHOD OF ACCOUNTING ON THE BASIS OF WHICH THE TAXPAYER REGULARLY
COMPUTES HIS INCOME IN KEEPING HIS BOOKS. 

"(B)  EXCEPTIONS.  - IF NO METHOD OF ACCOUNTING HAS BEEN REGULARLY
USED BY THE TAXPAYER, OR IF THE METHOD USED DOES NOT CLEARLY REFLECT
INCOME, THE COMPUTATION OF TAXABLE INCOME SHALL BE MADE UNDER SUCH
METHOD AS, IN THE OPINION OF THE SECRETARY OR HIS DELEGATE, DOES
CLEARLY REFLECT INCOME. 

"(C)  PERMISSIBLE METHODS.  - SUBJECT TO THE PROVISIONS OF
SUBSECTIONS (A) AND (B), A TAXPAYER MAY COMPUTE TAXABLE INCOME UNDER
ANY OF THE FOLLOWING METHODS OF ACCOUNTING: 

"(1)  THE CASH RECEIPTS AND DISBURSEMENTS METHOD: 

"(2)  AN ACCRUAL METHOD: 

"(3)  ANY OTHER METHOD PERMITTED BY THIS CHAPTER; OR: 

"(4)  ANY COMBINATION OF THE FOREGOING METHODS PERMITTED UNDER
REGULATIONS PRESCRIBED BY THE SECRETARY OR HIS DELEGATE." 

FN9  THE TREATMENT OF "GAINS FROM CANCELLATIONS" UNDERLINES THIS
ASPECT OF THE CASE.  THESE GAINS, REPRESENTING AMOUNTS PAID OR PROMISED
IN ADVANCE OF LESSONS GIVEN, WERE RECOGNIZED IN THOSE PERIODS IN WHICH
THE TAXPAYERS ARBITRARILY DECIDED THE CONTRACTS WERE TO BE DEEMED
CANCELED.  THE STUDIO MADE NO ATTEMPT TO REPORT ESTIMATED CANCELLATIONS
IN THE YEAR OF RECEIPT, CHOOSING INSTEAD TO DEFER THESE GAINS TO
PERIODS BEARING NO ECONOMIC RELATIONSHIP TO THE INCOME RECOGNIZED.  CF.
CONTINENTAL TIE & LUMBER CO. V. UNITED STATES, 286 U.S. 290. 

FN10  NEGOTIABLE NOTES ARE REGARDED AS THE EQUIVALENT OF CASH
RECEIPTS, TO THE EXTENT OF THEIR FAIR MARKET VALUE, FOR THE PURPOSES OF
RECOGNITION OF INCOME.  SEC. 39.22(A)-4, TREAS. REG. 118, 1939 CODE;
SEC. 1.61-2(D)(4), TREAS. REG., 1954 CODE; MERTENS, FEDERAL INCOME
TAXATION (1961), SEC. 11.07.  SEE PINELLAS ICE CO. V. COMMISSIONER, 287
U.S. 462. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
HARLAN, AND MR. JUSTICE GOLDBERG JOIN, DISSENTING. 

AS THE COURT NOTES, THIS CASE IS BUT THE MOST RECENT EPISODE IN A
PROTRACTED DISPUTE CONCERNING THE PROPER INCOME TAX TREATMENT OF
AMOUNTS RECEIVED AS ADVANCES FOR SERVICES TO BE PERFORMED IN A
SUBSEQUENT YEAR BY A TAXPAYER WHO IS ON AN ACCRUAL RATHER THAN A CASH
BASIS.  THE GOVERNMENT HAS CONSISTENTLY ARGUED THAT SUCH AMOUNTS ARE
TAXABLE IN THE YEAR OF RECEIPT, RELYING UPON TWO ALTERNATIVE ARGUMENTS:
IT HAS CLAIMED THAT DEFERRAL OF SUCH PAYMENTS WOULD VIOLATE THE
"ANNUAL ACCOUNTING" PRINCIPLE WHICH REQUIRES THAT INCOME NOT BE
POSTPONED FROM ONE YEAR TO THE NEXT TO REFLECT THE LONG-TERM ECONOMIC
RESULT OF A TRANSACTION.  ALTERNATIVELY, THE GOVERNMENT HAS ARGUED THAT
ADVANCE PAYMENTS MUST BE REPORTED AS INCOME IN THE YEAR OF RECEIPT
UNDER THE "CLAIM-OF-RIGHT DOCTRINE," WHICH REQUIRES OTHERWISE
REPORTABLE INCOME, HELD UNDER A CLAIM OF RIGHT WITHOUT RESTRICTION AS
TO USE, TO BE REPORTED WHEN RECEIVED DESPITE THE FACT THAT THE
TAXPAYER'S CLAIM TO THE FUNDS MAY BE DISPUTED.  (FN1) 

AS I HAVE ELSEWHERE POINTED OUT, NEITHER OF THESE DOCTRINES HAS ANY
RELEVANCE TO THE QUESTION WHETHER ANY REPORTABLE INCOME AT ALL HAS BEEN
DERIVED WHEN PAYMENTS ARE RECEIVED IN ADVANCE OF PERFORMANCE BY AN
ACCRUAL-BASIS TAXPAYER.  (FN2)  THE MOST ELEMENTARY PRINCIPLES OF
ACCRUAL ACCOUNTING REQUIRE THAT ADVANCES BE CONSIDERED REPORTABLE
INCOME ONLY IN THE YEAR THEY ARE EARNED BY THE TAXPAYER'S RENDITION OF
THE SERVICES FOR WHICH THE PAYMENTS WERE MADE.  THE GOVERNMENT'S
THEORIES WOULD FORCE UPON AN ACCRUAL-BASIS TAXPAYER A CASH BASIS FOR
ADVANCE PAYMENTS IN DISREGARD OF THE FEDERAL STATUTE WHICH EXPLICITLY
AUTHORIZES INCOME TAX RETURNS TO BE BASED UPON SOUND ACCRUAL ACCOUNTING
METHODS.  (FN3) 

APPARENTLY THE COURT AGREES THAT NEITHER THE ANNUAL ACCOUNTING
REQUIREMENT NOR THE CLAIM-OF-RIGHT DOCTRINE HAS ANY RELEVANCE OR
APPLICABILITY TO THE QUESTION INVOLVED IN THIS CASE.  FOR THE COURT
DOES NOT BASE ITS DECISION ON EITHER THEORY, BUT RATHER, AS IN TWO
PREVIOUS CASES, (FN4) UPON THE GROUND THAT THE SYSTEM OF ACCRUAL
ACCOUNTING USED BY THESE PARTICULAR TAXPAYERS DOES NOT "CLEARLY REFLECT
INCOME" IN ACCORD WITH THE STATUTORY COMMAND.  (FN5)  THIS RESULT IS
SAID TO BE COMPELLED BOTH BY A CONSIDERATION OF LEGISLATIVE HISTORY AND
BY AN ANALYSIS OF THE PARTICULAR ACCOUNTING SYSTEM WHICH THESE
TAXPAYERS EMPLOYED. 

FOR THE REASONS I HAVE ELSEWHERE STATED AT SOME LENGTH, (FN6) TO RELY
ON THE REPEAL OF SECS. 452 AND 462 AS INDICATING CONGRESSIONAL
DISAPPROVAL OF ACCRUAL ACCOUNTING PRINCIPLES IS CONSPICUOUSLY TO
DISREGARD CLEAR EVIDENCE OF LEGISLATIVE INTENT.  THE SECRETARY OF THE
TREASURY, WHO PROPOSED THE REPEAL OF THESE SECTIONS, MADE EXPLICITLY
CLEAR THAT NO INFERENCE OF DISAPPROVAL OF ACCRUAL ACCOUNTING PRINCIPLES
WAS TO BE DRAWN FROM THE REPEAL OF THE SECTIONS.  (FN7)  SO DID THE
SENATE REPORT.  (FN8)  THE REPEAL OF THESE SECTIONS WAS OCCASIONED
SOLELY BY THE FEAR OF TEMPORARY REVENUE LOSSES WHICH WOULD RESULT FROM
THE TAKING OF "DOUBLE DEDUCTIONS" DURING THE YEAR OF TRANSITION BY
TAXPAYERS WHO HAD NOT PREVIOUSLY MAINTAINED THEIR BOOKS ON AN ACCRUAL
BASIS.  (FN9) 

THE COURT'S DECISION CAN BE JUSTIFIED, THEN, ONLY UPON THE BASIS THAT
THE SYSTEM OF ACCRUAL ACCOUNTING USED BY THE TAXPAYERS IN THIS CASE DID
NOT "CLEARLY REFLECT INCOME" IN ACCORDANCE WITH THE COMMAND OF SEC.
41.  IN THE AUTOMOBILE CLUB OF MICHIGAN CASE (FN10) THE TAXPAYER
ALLOCATED YEARLY DUES RATABLY OVER 12 MONTHS, SO THAT ONLY A PORTION OF
THE DUES RECEIVED DURING ANY FISCAL YEAR WAS REPORTED AS INCOME FOR
THAT YEAR.  IN THE ABSENCE OF ANY PROOF THAT SERVICES DEMANDED BY THE
AUTOMOBILE CLUB MEMBERS WERE DISTRIBUTED IN THE SAME PROPORTION OVER
THE YEAR, THE COURT HELD THAT THE SYSTEM USED BY THE TAXPAYER DID NOT
CLEARLY REFLECT INCOME.  IN THE AMERICAN AUTOMOBILE ASSOCIATION CASE
(FN11) THE TAXPAYER OFFERED STATISTICAL PROOF TO SHOW THAT ITS
PRORATION OF DUES REASONABLY MATCHED THE PROPORTION OF ITS YEARLY COSTS
INCURRED EACH MONTH IN RENDERING SERVICES ATTRIBUTABLE TO THOSE DUES. 
THE COURT DISCOUNTED THE VALIDITY OF THIS STATISTICAL EVIDENCE BECAUSE
THE AMOUNT AND TIMING OF THE SERVICES DEMANDED WERE WHOLLY WITHIN THE
CONTROL OF THE INDIVIDUAL MEMBERS OF THE ASSOCIATION, AND THE COURT
THOUGHT THAT THE ASSOCIATION COULD NOT, THEREFORE, ESTIMATE WITH
ACCURACY THE COSTS ATTRIBUTABLE TO EACH INDIVIDUAL MEMBER'S DEMANDS. 

IN THE PRESENT CASE THE DIFFICULTIES WHICH THE COURT PERCEIVED IN
AUTOMOBILE CLUB OF MICHIGAN AND AMERICAN AUTOMOBILE ASSOCIATION HAVE
BEEN ENTIRELY ELIMINATED IN THE ACCOUNTING SYSTEM WHICH THESE TAXPAYERS
HAVE CONSISTENTLY EMPLOYED.  THE RECORDS KEPT ON INDIVIDUAL STUDENTS
ACCURATELY MEASURED THE AMOUNT OF SERVICES RENDERED - AND THEREFORE THE
COSTS INCURRED BY THE TAXPAYER - UNDER EACH INDIVIDUAL CONTRACT DURING
EACH TAXABLE YEAR.  BUT, WE ARE TOLD, THERE IS A FATAL FLAW IN THE
TAXPAYERS' ACCOUNTS IN THIS CASE TOO: THE INDIVIDUAL CONTRACTS DID NOT
PROVIDE "FOR LESSONS ON FIXED DATES  ...  , BUT LEFT SUCH DATES TO BE
ARRANGED FROM TIME TO TIME BY THE INSTRUCTOR AND HIS STUDENT."  YET
THIS "FIXED DATE OF PERFORMANCE" STANDARD, IT TURNS OUT, ACTUALLY HAS
NOTHING WHATEVER TO DO WITH THOSE ASPECTS OF THE TAXPAYERS' ACCOUNTING
SYSTEM WHICH THE COURT ULTIMATELY FINDS OBJECTIONABLE. 

THERE IS NOTHING IN THE COURT'S OPINION TO INDICATE DISAPPROVAL OF
THE BASIC METHOD BY WHICH INCOME EARNED BY THE RENDITION OF SERVICES
WAS RECORDED.  ON THE CONTRARY, THE TAXPAYERS' SYSTEM WAS ADMITTEDLY
WHOLLY ACCURATE IN RECORDING LESSONS GIVEN UNDER EACH INDIVIDUAL
CONTRACT.  IT WAS ONLY IN CONNECTION WITH LESSONS WHICH HAD NOT YET
BEEN TAUGHT THAT THE TAXPAYERS WERE "UNCERTAIN WHETHER NONE, SOME OR
ALL" OF THE CONTRACTUAL SERVICES WOULD BE RENDERED, AND THE CONDEMNED
"ARBITRARINESS" THEREFORE IS LIMITED SOLELY TO THE METHOD BY WHICH
CANCELLATIONS WERE RECOGNIZED.  (FN12)  IT IS, OF COURSE, TRUE OF ALL
BUSINESSES IN WHICH SERVICES ARE NOT RENDERED SIMULTANEOUSLY WITH
PAYMENT THAT THE NUMBER AND AMOUNT OF CANCELLATIONS ARE NECESSARILY
UNKNOWN AT THE TIME ADVANCES ARE RECEIVED.  BUT SURELY IT CANNOT BE
CONTENDED THAT A CONTRACT WHICH SPECIFIED THE TIMES AT WHICH LESSONS
WERE TO BE GIVEN WOULD MAKE ANY MORE CERTAIN HOW MANY OF THE REAMINING
LESSONS STUDENTS WOULD IN FACT DEMAND.  INDEED, THE COURT DOES NOT
SUGGEST THAT A SCHEDULE FIXING THE DATES OF ALL FUTURE LESSONS WOULD,
IF EMBODIED IN EACH CONTRACT, SUFFICE TO MAKE PETITIONERS' ACCOUNTING
SYSTEM "CLEARLY REFLECT INCOME." 

INSTEAD, THE CURE SUGGESTED BY THE COURT FOR THE DEFECT WHICH IT
FINDS IN THE ACCOUNTING SYSTEM USED BY THESE TAXPAYERS IS THAT
ESTIMATED CANCELLATIONS SHOULD BE REPORTED AS INCOME IN THE YEAR
ADVANCE PAYMENTS ARE RECEIVED.  I AGREE THAT SUCH ESTIMATES MIGHT MORE
"CLEARLY REFLECT INCOME" THAN THE SYSTEM ACTUALLY USED BY THE
TAXPAYERS.  BUT ANY SUCH ESTIMATES WOULD NECESSARILY HAVE TO BE BASED
ON PRECISELY THE TYPE OF STATISTICAL EVALUTATIONS WHICH THE COURT
STRUCK DOWN IN THE AMERICAN AUTOMOBILE ASSOCIATION CASE.  WHATEVER
OTHER ARTIFICIALITIES THE EXIGENCIES OF REVENUE COLLECTION MAY REQUIRE
IN THE FIELD OF TAX ACCOUNTING, IT HAS NEVER BEFORE TODAY BEEN
SUGGESTED THAT A CONSISTENT METHOD OF ACCRUAL ACCOUNTING, VALID FOR
PURPOSES OF RECOGNIZING INCOME, IS NOT EQUALLY VALID FOR PURPOSES OF
DEFERRING INCOME.  YET IN THIS CASE THE COURT SAYS THAT THE TAXPAYERS,
IN RECOGNIZING INCOME, SHOULD HAVE USED THE VERY SYSTEM OF STATISTICAL
ESTIMATES WHICH, FOR INCOME DEFERRAL PURPOSES, THE AMERICAN AUTOMOBILE
DECISION HELD IMPERMISSILBE. 

IT SEEMS TO ME THAT THIS DECISION, THE THIRD OF A TRILOGY OF CASES
PURPORTEDLY DECIDED ON THEIR OWN PECULIAR FACTS, IN TRUTH COMPLETES THE
MUTILATION OF A BASIC ELEMENT OF THE ACCRUAL METHOD OF REPORTING INCOME
- A METHOD WHICH HAS BEEN EXPLICITLY APPROVED BY CONGRESS FOR ALMOST
HALF A CENTURY.  (FN13) 

I RESPECTFULLY DISSENT. 

FN1  THE COMMISSIONER HAS SOMETIMES BEEN SUCCESSFUL IN URGING THE
"CLAIM-OF-RIGHT DOCTRINE" AS A BAR TO THE DEFERRAL OF ADVANCES BY
ACCRUAL-BASIS TAXPAYERS.  SEE, E.G., ANDREWS V. COMMISSIONER, 23 T.C.
1026, 1032-1033; SOUTH DADE FARMS V. COMMISSIONER, 138 F.2D 818 (C.A.
5TH CIR.); CLAY SEWER PIPE ASSN. V. COMMISSIONER, 139 F.2D 130 (C.A. 3D
CIR.); AUTOMOBILE CLUB OF MICHIGAN V. COMMISSIONER, 230 F.2D 585, 591
(C.A. 6TH CIR.), AFF'D ON OTHER GROUNDS, 353 U.S. 180. 

IN MORE RECENT CASES, ON THE OTHER HAND, THE COURTS OF APPEALS HAVE
HELD THE CLAIM-OF-RIGHT DOCTRINE IRRELEVANT TO THIS PROBLEM.  BRESSNER
RADIO, INC., V. COMMISSIONER, 267 F.2D 520, 524, 525-528 (C.A.2D CIR.);
SCHUESSLER V. COMMISSIONER, 230 F.2D 722, 725 (C.A. 5TH CIR.); BEACON
PUBLISHING CO. V. COMMISSIONER, 218 F.2D 697, 699-701 (C.A. 10TH
CIR.). 

IN THE PRESENT CASE THE COMMISSIONER URGED THAT THE "CLAIM-OF-RIGHT
DOCTRINE" WAS APPLICABLE EVEN TO ADVANCE FEES WHICH WERE DUE UNDER THE
CONTRACT BUT NOT YET PAID, A POSITION FROM WHICH HE RECEDED ONLY WHEN
THE CASE REACHED THIS COURT.  THE TAX COURT, AT LEAST IN ONE CASE, HAS
ACCEPTED THE ARGUMENT.  YOUR HEALTH CLUB, INC., V. COMMISSIONER, 4 T.C.
385. 

FN2  SEE AMERICAN AUTOMOBILE ASSN. V. UNITED STATES, 367 U.S. 687, AT
699-702 (DISSENTING OPINION). 

FN3  "SEC.  446.  GENERAL RULE FOR METHODS OF ACCOUNTING. 

"(A)  GENERAL RULE.  - TAXABLE INCOME SHALL BE COMPUTED UNDER THE
METHOD OF ACCOUNTING ON THE BASIS OF WHICH THE TAXPAYER REGULARLY
COMPUTES HIS INCOME IN KEEPING HIS BOOKS.    "(B)  EXCEPTIONS.  - IF NO
METHOD OF ACCOUNTING HAS BEEN REGULARLY USED BY THE TAXPAYER, OR IF THE
METHOD USED DOES NOT CLEARLY REFLECT INCOME, THE COMPUTATION OF TAXABLE
INCOME SHALL BE MADE UNDER SUCH METHOD AS, IN THE OPINION OF THE
SECRETARY OR HIS DELEGATE, DOES CLEARLY REFLECT INCOME. 

"(C)  PERMISSIBLE METHODS.  - SUBJECT TO THE PROVISIONS OF
SUBSECTIONS (A) AND (B), A TAXPAYER MAY COMPUTE TAXABLE INCOME UNDER
ANY OF THE FOLLOWING METHODS OF ACCOUNTING: 

     *         *         *        *         * 

"(2)  AN ACCRUAL METHOD; ...  ."    FN4  AUTOMOBILE CLUB OF MICHIGAN
V. COMMISSIONER, 353 U.S. 180, AND AMERICAN AUTOMOBILE ASSN. V. UNITED
STATES, 367 U.S. 687. 

FN5  SEE NOTE 3, SUPRA.  SEE ALSO SEC. 41, 1939 CODE. 

FN6 SEE AMERICAN AUTOMOBILE ASSN. V. UNITED STATES, 367 U.S., AT 703
711 (DISSENTING OPINION). 

FN7  H.R. REP. NO. 293, 84TH CONG., 1ST SESS. 5. 

FN8  S. REP. NO. 372, 84TH CONG., 1ST SESS. 5-6.  SEE ALSO H.R. REP.
NO. 293, 84TH CONG., 1ST SESS. 4-5. 

FN9  SINCE THE TAXPAYERS IN THE PRESENT CASE HAVE CONSISTENTLY
MAINTAINED THEIR BOOKS ON AN ACCRUAL BASIS, THEY COULD NOT HAVE TAKEN
ADVANTAGE OF A "DOUBLE DEDUCTION" EVEN UNDER THE REPEALED SECTIONS. 

FN10  353 U.S. 180. 

FN11  367 U.S. 687. 

FN12  THE COURT ALSO URGES THAT THE TAXPAYERS' TREATMENT OF THE
COMMISSIONS PAID TO SALES PERSONNEL AND ROYALTIES PAID TO ARTHUR
MURRAY, INC., WERE INCONSISTENT WITH AN ACCRUAL ACCOUNTING SYSTEM.  IT
SHOULD BE NOTED THAT SEC. 1.461-1(A)(3), TREAS. REG., 1954 CODE,
SPECIFICALLY PROVIDES: "  ...  HOWEVER, IN A GOING BUSINESS THERE ARE
CERTAIN OVERLAPPING DEDUCTIONS.  IF THESE OVERLAPPING ITEMS DO NOT
MATERIALLY DISTORT INCOME, THEY MAY BE INCLUDED IN THE YEARS IN WHICH
THE TAXPAYER CONSISTENTLY TAKES THEM INTO ACCOUNT."  IF, HOWEVER, THE
COURT IS HOLDING THAT THESE ITEMS DO "MATERIALLY DISTORT INCOME," THEN
THE CASE SHOULD BE REMANDED FOR RECOMPUTATION AS TO THESE ITEMS. 

FN13  SEE SEC. 13(D) OF THE REVENUE ACT OF 1916, 39 STAT. 771. 
..END :

















KENNEDY V. MENDOZA-MARTINEZ 372 U.S. 144 


NO. 2.  ARGUED OCTOBER 10-11, 1961.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED DECEMBER 4, 1962.  - DECIDED
FEBRUARY 18, 1963.* - 192 F. SUPP. 1 AND 187 F. SUPP. 683, AFFIRMED. 

*TOGETHER WITH NO. 3, RUSK, SECRETARY OF STATE, V. CORT, ON APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA,
ARGUED OCTOBER 11, 1961, DECIDED IN PART AND SET FOR REARGUMENT APRIL
2, 1962, REARGUED DECEMBER 4-5, 1962. 


BOTH APPELLEES ARE NATIVE-BORN CITIZENS OF THE UNITED STATES.  MENDOZA
MARTINEZ WAS ORDERED DEPORTED AS AN ALIEN AND CORT WAS DENIED A
PASSPORT TO ENABLE HIM TO RETURN TO THE UNITED STATES, BOTH ON THE
GROUND THAT THEY HAD LOST THEIR CITIZENSHIP BY REMAINING OUTSIDE OF THE
JURISDICTION OF THE UNITED STATES IN TIME OF WAR OR NATIONAL EMERGENCY
FOR THE PURPOSE OF EVADING OR AVOIDING TRAINING AND SERVICE IN THE
NATION'S ARMED FORCES.  BOTH SUED FOR RELIEF IN FEDERAL DISTRICT
COURTS, WHICH RENDERED JUDGMENTS DECLARING THAT THE RELEVANT STATUTES,
SEC. 401(J) OF THE NATIONALITY ACT OF 1940, AS AMENDED, AND SEC.
349(A)(10) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, ARE
UNCONSTITUTIONAL.  MENDOZA-MARTINEZ' CASE WAS TRIED BY A SINGLE-JUDGE
DISTRICT COURT, WHICH GRANTED NO INJUNCTION.  CORT'S CASE WAS TRIED BY
A THREE-JUDGE DISTRICT COURT, WHICH ENJOINED THE SECRETARY OF STATE
FROM DENYING HIM A PASSPORT ON THE GROUND THAT HE WAS NOT A CITIZEN. 
HELD:  THE JUDGMENTS ARE AFFIRMED.  PP. 146-186. 

1.  ALTHOUGH MENDOZA-MARTINEZ AMENDED HIS COMPLAINT SO AS TO ADD A
PRAYER FOR INJUNCTIVE RELIEF BEFORE THE THIRD TRIAL OF HIS CASE BY A
SINGLE-JUDGE DISTRICT COURT, IT IS CLEAR FROM THE TRIAL RECORD THAT THE
ISSUES WERE FRAMED AND THE CASE HANDLED SO AS ACTUALLY NOT TO
CONTEMPLATE ANY INJUNCTIVE RELIEF.  IN THESE CIRCUMSTANCES, IT WAS NOT
NECESSARY FOR THE CASE TO BE HEARD BY A THREE-JUDGE DISTRICT COURT
CONVENED PURSUANT TO 28 U.S.C.  SEC. 2282.  PP. 152-155. 

2.  THE TRIAL AND CONVICTION OF MENDOZA-MARTINEZ FOR VIOLATING SEC.
11 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 BY GOING TO MEXICO
"ON OR ABOUT NOVEMBER 15, 1942  ...  FOR THE PURPOSE OF EVADING
SERVICE" DID NOT INVOLVE ANY DETERMINATION OF HIS CITIZENSHIP STATUS,
AND THEREFORE DID NOT ESTOP THE GOVERNMENT FROM DENYING HIS CITIZENSHIP
SUBSEQUENTLY.  PP. 155-158. 

3.  SECTION 401(J) OF THE NATIONALITY ACT OF 1940, AS AMENDED, AND
SEC. 349(A)(10) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, WHICH
PURPORT TO DEPRIVE AN AMERICAN OF HIS CITIZENSHIP, AUTOMATICALLY AND
WITHOUT ANY PRIOR JUDICIAL OR ADMINISTRATIVE PROCEEDINGS, FOR
"DEPARTING FROM OR REMAINING OUTSIDE OF THE JURISDICTION OF THE UNITED
STATES IN TIME OF WAR OR  ...  NATIONAL EMERGENCY FOR THE PURPOSE OF
EVADING OR AVOIDING TRAINING AND SERVICE" IN THE NATION'S ARMED FORCES,
ARE UNCONSTITUTIONAL, BECAUSE THEY ARE ESSENTIALLY PENAL IN CHARACTER
AND WOULD INFLICT SEVERE PUNISHMENT WITHOUT DUE PROCESS OF LAW AND
WITHOUT THE SAFEGUARDS WHICH MUST ATTEND A CRIMINAL PROSECUTION UNDER
THE FIFTH AND SIXTH AMENDMENTS.  PP. 159-186. 

(A)  THE GREAT POWERS OF CONGRESS TO CONDUCT WAR AND TO REGULATE THE
NATION'S FOREIGN RELATIONS ARE SUBJECT TO THE CONSTITUTIONAL
REQUIREMENTS OF DUE PROCESS.  PP. 164-165. 

(B)  IT IS CONCEDED THAT SECS. 401(J) AND 349(A)(10) WOULD
AUTOMATICALLY STRIP AN AMERICAN OF HIS CITIZENSHIP, WITHOUT ANY
ADMINISTRATIVE OR JUDICIAL PROCEEDINGS WHATEVER, WHENEVER HE DEPARTS
FROM OR REMAINS OUTSIDE THE JURISDICTION OF THIS COUNTRY FOR THE
PURPOSE OF EVADING HIS MILITARY OBLIGATIONS.  PP. 166-167. 

(C)  THE PUNITIVE NATURE OF THE SANCTIONS IMPOSED BY THESE SECTIONS
IS EVIDENT UNDER THE TESTS TRADITIONALLY APPLIED TO DETERMINE WHETHER
AN ACT OF CONGRESS IS PENAL OR REGULATORY IN CHARACTER, AND IT IS CLEAR
FROM A CONSIDERATION OF THE LEGISLATIVE AND JUDICIAL HISTORY OF THESE
SANCTION OF FORFEITURE OF CITIZENSHIP AS A PUNISHMENT FOR THE OFFENSE
OF LEAVING OR REMAINING OUTSIDE THE COUNTRY TO EVADE MILITARY SERVICE. 
PP. 163-184. 

(D)  SUCH PUNISHMENT MAY NOT CONSTITUTIONALLY BE INFLICTED WITHOUT A
PRIOR CRIMINAL TRIAL WITH ALL THE SAFEGUARDS GUARANTEED BY THE FIFTH
AND SIXTH AMENDMENTS, INCLUDING INDICTMENT, NOTICE, CONFRONTATION, JURY
TRIAL, ASSISTANCE OF COUNSEL, AND COMPULSORY PROCESS FOR OBTAINING
WITNESSES.  PP. 167, 184, 186. 

KENNEDY, ATTORNEY GENERAL V. MENDOZA-MARTINEZ. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON IN THESE TWO CASES TO DECIDE THE GRAVE AND
FUNDAMENTAL PROBLEM, COMMON TO BOTH, OF THE CONSTITUTIONALITY OF ACTS
OF CONGRESS WHICH DIVEST AN AMERICAN OF HIS CITIZENSHIP FOR "DEPARTING
FROM OR REMAINING OUTSIDE OF THE JURISDICTION OF THE UNITED STATES IN
TIME OF WAR OR  ...  NATIONAL EMERGENCY FOR THE PURPOSE OF EVADING OR
AVOIDING TRAINING AND SERVICE" IN THE NATION'S ARMED FORCES.  (FN1)

              I. THE FACTS. 

                        A. MENDOZA-MARTINEZ - NO. 2. 

THE FACTS OF BOTH CASES ARE NOT IN DISPUTE.  MENDOZA-MARTINEZ, THE
APPELLEE IN NO. 2, WAS BORN IN THIS COUNTRY IN 1922 AND THEREFORE
ACQUIRED AMERICAN CITIZENSHIP BY BIRTH.  BY REASON OF HIS PARENTAGE, HE
ALSO, UNDER MEXICAN LAW, GAINED MEXICAN CITIZENSHIP, THEREBY POSSESSING
DUAL NATIONALITY.  IN 1942 HE DEPARTED FROM THIS COUNTRY AND WENT TO
MEXICO SOLELY, AS HE ADMITS, FOR THE PURPOSE OF EVADING MILITARY
SERVICE IN OUR ARMED FORCES.  HE CONCEDES THAT HE REMAINED THERE FOR
THAT SOLE PURPOSE UNTIL NOVEMBER 1946, WHEN HE VOLUNTARILY RETURNED TO
THIS COUNTRY.  IN 1947, IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA, HE PLEADED GUILTY TO AND WAS CONVICTED
OF EVASION OF HIS SERVICE OBLIGATIONS IN VIOLATION OF SEC. 11 OF THE
SELECTIVE TRAINING AND SERVICE ACT OF 1940.  (FN2)  HE SERVED THE
IMPOSED SENTENCE OF A YEAR AND A DAY.  FOR ALL THAT APPEARS IN THE
RECORD, HE WAS, UPON HIS RELEASE, ALLOWED TO RESIDE UNDISTURBED IN THIS
COUNTRY UNTIL 1953, WHEN, AFTER A LAPSE OF FIVE YEARS, HE WAS SERVED
WITH A WARRANT OF ARREST IN DEPORTATION PROCEEDINGS.  THIS WAS PREMISED
ON THE ASSERTION THAT, BY REMAINING OUTSIDE THE UNITED STATES TO AVOID
MILITARY SERVICE UNTIL SEPTEMBER 27, 1944, WHEN SEC. 401(J) TOOK
EFFECT, HE HAD LOST HIS AMERICAN CITIZENSHIP.  FOLLOWING HEARING, THE
ATTORNEY GENERAL'S SPECIAL INQUIRY OFFICER SUSTAINED THE WARRANT AND
ORDERED THAT MENDOZA-MARTINEZ BE DEPORTED AS AN ALIEN.  HE APPEALED TO
THE BOARD OF IMMIGRATION APPEALS OF THE DEPARTMENT OF JUSTICE, WHICH
DISMISSED HIS APPEAL. 

THEREAFTER, MENDOZA-MARTINEZ BROUGHT A DECLARATORY JUDGMENT ACTION IN
THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA,
SEEKING A DECLARATION OF HIS STATUS AS A CITIZEN, OF THE
UNCONSTITUTIONALITY OF SEC. 401(J), AND OF THE VOIDNESS OF ALL ORDERS
OF DEPORTATION DIRECTED AGAINST HIM.  A SINGLE-JUDGE DISTRICT COURT IN
AN UNREPORTED DECISION ENTERED JUDGMENT AGAINST MENDOZA-MARTINEZ IN
1955, HOLDING THAT BY VIRTUE OF SEC. 401(J), WHICH THE COURT HELD TO BE
CONSTITUTIONAL, HE HAD LOST HIS NATIONALITY BY REMAINING OUTSIDE THE
JURISDICTION OF THE UNITED STATES AFTER SEPTEMBER 27, 1944.  THE COURT
OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED THE JUDGMENT, 238 F.2D 239. 
THIS COURT, IN 1958, MENDOZA-MARTINEZ V. MACKEY, 356 U.S. 258, GRANTED
CERTIORARI, VACATED THE JUDGMENT, AND REMANDED THE CAUSE TO THE
DISTRICT COURT FOR RECONSIDERATION IN LIGHT OF ITS DECISION A WEEK
EARLIER IN TROP V. DULLES, 356 U.S. 86. 

ON SEPTEMBER 24, 1958, THE DISTRICT COURT ANNOUNCED ITS NEW DECISION,
ALSO UNREPORTED, THAT IN LIGHT OF TROP SEC. 401(J) IS UNCONSTITUTIONAL
BECAUSE NOT BASED ON ANY "RATIONAL NEXUS  ...  BETWEEN THE CONTENT OF A
SPECIFIC POWER IN CONGRESS AND THE ACTION OF CONGRESS IN CARRYING THAT
POWER INTO EXECUTION."  ON DIRECT APPEAL UNDER 28 U.S.C. SEC. 1252,
THIS COURT NOTED PROBABLE JURISDICTION, 359 U.S. 933, AND THEN OF ITS
OWN MOTION REMANDED THE CAUSE, THIS TIME WITH PERMISSION TO THE PARTIES
TO AMEND THE PLEADINGS TO PUT IN ISSUE THE QUESTION OF WHETHER THE
FACTS AS DETERMINED ON THE DRAFT-EVASION CONVICTION IN 1947
COLLATERALLY ESTOPPED THE ATTORNEY GENERAL FROM NOW CLAIMING THAT
MENDOZA-MARTINEZ HAD LOST HIS AMERICAN CITIZENSHIP WHILE IN MEXICO. 
MACKEY V. MENDOZA-MARTINEZ, 362 U.S. 384. 

THE DISTRICT COURT ON REMAND HELD THAT THE GOVERNMENT WAS NOT
COLLATERALLY ESTOPPED BECAUSE THE 1947 CRIMINAL PROCEEDINGS ENTAILED NO
DETERMINATION OF MENDOZA-MARTINEZ' CITIZENSHIP.  THE COURT, HOWEVER,
REAFFIRMED ITS PREVIOUS HOLDING THAT SEC. 401(J) IS UNCONSTITUTIONAL,
ADDING AS A FURTHER BASIS OF INVALIDITY THAT SEC. 401(J) IS
"ESSENTIALLY PENAL IN CHARACTER AND DEPRIVES THE PLAINTIFF OF
PROCEDURAL DUE PROCESS  ...  .  THE REQUIREMENTS OF PROCEDURAL DUE
PROCESS ARE NOT SATISFIED BY THE ADMINISTRATIVE HEARING OF THE
IMMIGRATION SERVICE NOR IN THIS PRESENT PROCEEDINGS."  (FN3)  THE
ATTORNEY GENERAL'S CURRENT APPEAL IS FROM THIS DECISION.  PROBABLE
JURISDICTION WAS NOTED ON FEBRUARY 20, 1961, 365 U.S. 809.  THE CASE
WAS ARGUED LAST TERM, AND RESTORED TO THE CALENDAR FOR REARGUMENT THIS
TERM, 369 U.S. 832. 

      B. CORT - NO. 3. 

CORT, THE APPELLEE IN NO. 3, IS ALSO A NATIVE-BORN AMERICAN, BORN IN
BOSTON IN 1927.  UNLIKE MENDOZA-MARTINEZ, HE HAS NO DUAL NATIONALITY. 
HIS WIFE AND TWO YOUNG CHILDREN ARE LIKEWISE AMERICAN CITIZENS BY
BIRTH.  FOLLOWING RECEIPT OF HIS M.D. DEGREE FROM THE YALE UNIVERSITY
SCHOOL OF MEDICINE IN 1951, HE WENT TO ENGLAND FOR THE PURPOSE OF
UNDERTAKING A POSITION AS A RESEARCH FELLOW AT CAMBRIDGE UNIVERSITY. 
HE HAD EARLIER REGISTERED IN TIMELY AND PROPER FASHION FOR THE DRAFT
AND SHORTLY BEFORE HIS DEPARTURE SUPPLEMENTED HIS REGULAR SELECTIVE
SERVICE REGISTRATION BY REGISTERING UNDER THE NEWLY ENACTED DOCTORS
DRAFT ACT.  (FN4)  IN LATE 1951 HE RECEIVED A SERIES OF LETTERS FROM
THE AMERICAN EMBASSY IN LONDON INSTRUCTING HIM TO DELIVER HIS PASSPORT
TO IT TO BE MADE "VALID ONLY FOR RETURN TO THE UNITED STATES."  HE DID
NOT RESPOND TO THESE DEMANDS BECAUSE, HE NOW SAYS IN AN AFFIDAVIT FILED
IN THE TRIAL COURT IN THIS PROCEEDING, "I BELIEVED THAT THEY WERE
UNLAWFUL AND I DID NOT WISH TO SUBJECT MYSELF TO THIS AND SIMILAR FORMS
OF POLITICAL PERSECUTION THEN PREVALENT IN THE UNITED STATES  ...  .  I
WAS ENGAGED IN IMPORTANT RESEARCH AND TEACHING WORK IN PHYSIOLOGY AND I
DESIRED TO CONTINUE EARNING A LIVELIHOOD FOR MY FAMILY."  CORT HAD BEEN
A MEMBER OF THE COMMUNIST PARTY WHILE HE WAS A MEDICAL STUDENT AT YALE
FROM 1946 TO 1951, EXCEPT FOR THE ACADEMIC YEAR 1948-1949 WHEN HE WAS
IN ENGLAND.  IN LATE 1952, WHILE STILL IN ENGLAND AT CAMBRIDGE, HE
ACCEPTED A TEACHING POSITION FOR THE FOLLOWING ACADEMIC YEAR AT HARVARD
UNIVERSITY MEDICAL SCHOOL.  WHEN, HOWEVER, THE SCHOOL DISCOVERED
THROUGH FURTHER CORRESPONDENCE THAT HE HAD NOT YET FULFILLED HIS
MILITARY OBLIGATIONS, IT ADVISED HIM THAT IT DID NOT REGARD HIS
TEACHING POSITION AS ESSENTIAL ENOUGH TO SUPPORT HIS DEFERMENT FROM
MILITARY SERVICE IN ORDER TO ENTER UPON IT.  THEREAFTER, HIS LOCAL
DRAFT BOARD IN BROOKLINE, MASSACHUSETTS, NOTIFIED HIM IN FEBRUARY 1953
THAT HIS REQUEST FOR DEFERMENT WAS DENIED AND THAT HE SHOULD REPORT
WITHIN 30 DAYS FOR A PHYSICAL EXAMINATION EITHER IN BROOKLINE OR IN
FRANKFURT, GERMANY.  ON JUNE 4 AND ON JULY 3 THE DRAFT BOARD AGAIN SENT
CORT NOTICES TO REPORT FOR A PHYSICAL EXAMINATION, THE FIRST NOTICE FOR
EXAMINATION ON JULY 1 IN BROOKLINE, AND THE SECOND FOR EXAMINATION
WITHIN 30 DAYS IN FRANKFURT.  HE DID NOT APPEAR AT EITHER PLACE, AND
THE BOARD ON AUGUST 13 ORDERED HIM TO REPORT FOR INDUCTION ON SEPTEMBER
14, 1953.  HE DID NOT REPORT, AND CONSEQUENTLY HE WAS INDICTED IN
DECEMBER 1954 FOR VIOLATION OF SEC. 12(A) OF THE SELECTIVE SERVICE ACT
OF 1948 (FN5) BY REASON OF HIS FAILURE TO REPORT FOR INDUCTION.  THIS
INDICTMENT IS STILL OUTSTANDING.  HIS COMPLAINT IN THIS ACTION STATES
THAT HE DID NOT REPORT FOR INDUCTION BECAUSE HE BELIEVED "THAT THE
INDUCTION ORDER WAS NOT ISSUED IN GOOD FAITH TO SECURE HIS MILITARY
SERVICES, THAT HIS PAST POLITICAL ASSOCIATIONS AND PRESENT PHYSICAL
DISABILITIES MADE HIM INELIGIBLE FOR SUCH SERVICE, AND THAT HE WAS
BEING ORDERED TO REPORT BACK TO THE UNITED STATES TO BE SERVED WITH A
CONGRESSIONAL COMMITTEE SUBPOENA OR INDICTED UNDER THE SMITH ACT  ...
."  MEANWHILE, THE BRITISH HOME OFFICE HAD REFUSED TO RENEW HIS
RESIDENCE PERMIT, AND IN MID-1954 HE AND HIS FAMILY MOVED TO PRAGUE,
CZECHOSLOVAKIA, WHERE HE TOOK A POSITION AS SENIOR SCIENTIFIC WORKER AT
THE CARDIOVASCULAR INSTITUTE.  HE HAS LIVED THERE SINCE. 

IN APRIL 1959, HIS PREVIOUS UNITED STATES PASSPORT HAVING LONG SINCE
EXPIRED, CORT APPLIED AT THE AMERICAN EMBASSY IN PRAGUE FOR A NEW ONE. 
HIS COMPLAINT IN THIS ACTION STATES THAT HE WANTED THE PASSPORT "IN
ORDER TO RETURN TO THE UNITED STATES WITH HIS WIFE AND CHILDREN SO THAT
HE MIGHT FULFILL HIS OBLIGATIONS UNDER THE SELECTIVE SERVICE LAWS AND
HIS WIFE MIGHT SECURE MEDICAL TREATMENT FOR MULTIPLE SCLEROSIS."  MRS.
CORT RECEIVED A PASSPORT AND CAME TO THIS COUNTRY TEMPORARILY IN LATE
1959, BOTH FOR PURPOSES OF MEDICAL TREATMENT AND TO FACILITATE
ARRANGEMENTS FOR HER HUSBAND'S RETURN.  CORT'S APPLICATION, HOWEVER,
WAS DENIED ON THE GROUND THAT HE HAD, BY HIS FAILURE TO REPORT FOR
INDUCTION ON SEPTEMBER 14, 1953, AS ORDERED, REMAINED OUTSIDE THE
COUNTRY TO AVOID MILITARY SERVICE AND THEREBY AUTOMATICALLY FORFEITED
HIS AMERICAN CITIZENSHIP BY VIRTUE OF SEC. 349(A)(10) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, WHICH HAD SUPERSEDED SEC.
401(J).  THE STATE DEPARTMENT'S PASSPORT BOARD OF REVIEW AFFIRMED THE
FINDING OF EXPATRIATION, AND THE DEPARTMENT'S LEGAL ADVISER AFFIRMED
THE DECISION.  CORT, THROUGH COUNSEL, THEREUPON BROUGHT THIS SUIT IN
THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR A DECLARATORY
JUDGMENT THAT HE IS A CITIZEN OF THE UNITED STATES, FOR AN INJUNCTION
AGAINST ENFORCEMENT OF SEC. 349(A)(10) BECAUSE OF ITS
UNCONSTITUTIONALITY, AND FOR AN ORDER DIRECTING REVOCATION OF THE
CERTIFICATE OF LOSS OF NATIONALITY AND ISSUANCE OF A UNITED STATES
PASSPORT TO HIM.  PURSUANT TO CORT'S DEMAND, A THREE-JUDGE COURT WAS
CONVENED.  THE COURT HELD THAT HE HAD REMAINED OUTSIDE THE UNITED
STATES TO EVADE MILITARY SERVICE, BUT THAT SEC. 349(A)(10) IS
UNCONSTITUTIONAL BECAUSE "WE PERCEIVE NO SUBSTANTIAL DIFFERENCE BETWEEN
THE CONSTITUTIONAL ISSUE IN THE TROP CASE AND THE ONE FACING US."  IT
THEREFORE CONCLUDED THAT CORT IS A CITIZEN OF THIS COUNTRY AND ENJOINED
THE SECRETARY OF STATE FROM WITHHOLDING A PASSPORT FROM CORT ON THE
GROUND THAT HE IS NOT A CITIZEN AND FROM OTHERWISE INTERFERING WITH HIS
RIGHTS OF CITIZENSHIP.  CORT V. HERTER, 187 F. SUPP. 683. 

THE SECRETARY OF STATE APPEALED DIRECTLY TO THIS COURT, 28 U.S.C.
SECS. 1252, 1253, WHICH POSTPONED THE QUESTION OF JURISDICTION TO THE
HEARING OF THE CASE ON THE MERITS.  365 U.S. 808.  THE PRELIMINARY
QUESTION OF JURISDICTION WAS AFFIRMATIVELY RESOLVED LAST TERM, RUSK V.
CORT, 369 U.S. 367, LEAVING THE ISSUE OF THE VALIDITY OF SEC.
349(A)(10) FOR DECISION NOW, AFTER REARGUMENT.  369 U.S., AT 380. 

BEFORE WE CONSIDER THE ESSENTIAL QUESTION IN THESE CASES, THE
CONSTITUTIONALITY OF SECS. 401(J) AND 349(A)(10), TWO PRELIMINARY
ISSUES PECULIAR TO NO. 2 MUST BE DISCUSSED. 

                    II.  THE THREE-JUDGE COURT ISSUE. 

AT THE THRESHOLD IN MENDOZA-MARTINEZ' CASE IS THE QUESTION WHETHER
THE PROCEEDING SHOULD HAVE BEEN HEARD BY A THREE-JUDGE DISTRICT COURT
CONVENED PURSUANT TO 28 U.S.C.  SEC. 2282, WHICH REQUIRES SUCH A
TRIBUNAL AS A PREREQUISITE TO THE GRANTING OF ANY "INTERLOCUTORY OR
PERMANENT INJUNCTION RESTRAINING THE ENFORCEMENT, OPERATION OR
EXECUTION OF ANY ACT OF CONGRESS FOR REPUGNANCE TO THE CONSTITUTION OF
THE UNITED STATES  ...  ."  IF SEC. 2282 GOVERNS THIS LITIGATION, WE
ARE ONCE AGAIN FACED WITH THE PROSPECT OF A REMAND AND A NEW TRIAL,
THIS TIME BY A THREE-JUDGE PANEL.  WE ARE, HOWEVER, SATISFIED THAT THE
CASE WAS PROPERLY HEARD BY A SINGLE DISTRICT JUDGE, AS BOTH PARTIES
URGE. 

IN THE COMPLAINT UNDER WHICH THE CASE WAS TRIED THE FIRST AND SECOND
TIMES, MENDOZA-MARTINEZ ASKED FOR NO INJUNCTIVE RELIEF, AND NONE WAS
GRANTED.  IN THE AMENDED COMPLAINT WHICH HE FILED IN 1960 TO PUT IN
ISSUE THE QUESTION OF COLLATERAL ESTOPPEL, HE ADDED A PRAYER ASKING THE
COURT TO ADJUDGE "THAT DEFENDANTS HEREIN ARE ENJOINED AND RESTRAINED
HENCEFORTH FROM ENFORCING" ALL DEPORTATION ORDERS AGAINST HIM. 
HOWEVER, IT IS ABUNDANTLY CLEAR FROM THE AMENDED TRIAL STIPULATION
WHICH WAS ENTERED INTO BY THE PARTIES AND APPROVED BY THE JUDGE TO
"GOVERN THE COURSE OF THE TRIAL," THAT THE ISSUES WERE FRAMED SO AS NOT
TO CONTEMPLATE ANY INJUNCTIVE RELIEF.  THE FIRST QUESTION WAS
ARTICULATED ONLY IN TERMS OF WHETHER THE GOVERNMENT WAS "HEREIN
ESTOPPED BY REASON OF THE INDICTMENT AND CONVICTION OF PLAINTIFF FOR
DRAFT EVASION  ...  FROM DENYING THAT THE PLAINTIFF IS NOW A NATIONAL
AND CITIZEN OF THE UNITED STATES."  THE SECOND QUESTION ASKED ONLY FOR
A DECLARATION AS TO WHETHER SEC. 401(J) WAS "UNCONSTITUTIONAL, EITHER
ON ITS FACE OR AS APPLIED TO THE PLAINTIFF HEREIN."  THE CONCLUSION
THAT NO REQUEST FOR INJUNCTIVE RELIEF NOR EVEN ANY CONTEMPLATION OF IT
ATTENDED THE CASE AS IT WENT TO TRIAL IS BORNE OUT BY THE TOTAL LACK OF
REFERENCE TO INJUNCTIVE RELIEF IN THE DISTRICT COURT'S MEMORANDUM
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND JUDGMENT.  SEE
192 F. SUPP. 1.  THE RELIEF GRANTED WAS MERELY A DECLARATION THAT THE
1944 AMENDMENT "IS UNCONSTITUTIONAL, BOTH ON ITS FACE AND AS APPLIED TO
THE PLAINTIFF HEREIN," AND "THAT THE PLAINTIFF IS NOW, AND EVER SINCE
THE DATE OF HIS BIRTH HAS BEEN, A NATIONAL AND CITIZEN OF THE UNITED
STATES."  THUS, DESPITE THE AMENDMENT TO MENDOZA-MARTINEZ' COMPLAINT
BEFORE THE THIRD TRIAL, IT IS CLEAR THAT NEITHER THE PARTIES NOR THE
JUDGE AT ANY RELEVANT TIME REGARDED THE ACTION AS ONE IN WHICH
INJUNCTIVE RELIEF WAS MATERIAL TO THE DISPOSITION OF THE CASE.  SINCE
NO INJUNCTION RESTRAINING THE ENFORCEMENT OF SEC. 401(J) WAS AT ISSUE,
SEC. 2282 WAS NOT IN TERMS APPLICABLE TO REQUIRE THE CONVENING OF A
THREE-JUDGE DISTRICT COURT.    WHETHER AN ACTION SOLELY FOR DECLARATORY
RELIEF WOULD UNDER ALL CIRCUMSTANCES BE INAPPROPRIATE FOR CONSIDERATION
BY A THREE-JUDGE COURT WE NEED NOT NOW DECIDE, FOR IT IS CLEAR THAT IN
THE PRESENT CASE THE CONGRESSIONAL POLICY UNDERLYING THE STATUTE WAS
NOT FRUSTRATED BY TRIAL BEFORE A SINGLE JUDGE.  THE LEGISLATIVE HISTORY
OF SEC. 2282 AND OF ITS COMPLEMENT, SEC. 2281, (FN6) REQUIRING THREE
JUDGES TO HEAR INJUNCTIVE SUITS DIRECTED AGAINST FEDERAL AND STATE
LEGISLATION, RESPECTIVELY, INDICATES THAT THESE SECTIONS WERE ENACTED
TO PREVENT A SINGLE FEDERAL JUDGE FROM BEING ABLE TO PARALYZE TOTALLY
THE OPERATION OF AN ENTIRE REGULATORY SCHEME, EITHER STATE OR FEDERAL,
BY ISSUANCE OF A BROAD INJUNCTIVE ORDER.  SECTION 2281 "WAS A MEANS OF
PROTECTING THE INCREASING BODY OF STATE LEGISLATION REGULATING ECONOMIC
ENTERPRISE FROM INVALIDATION BY A CONVENTIONAL SUIT IN EQUITY  ... .
THE CRUX OF THE BUSINESS IS PROCEDURAL PROTECTION AGAINST AN
IMPROVIDENT STATE-WIDE DOOM BY A FEDERAL COURT OF A STATE'S LEGISLATIVE
POLICY.  THIS WAS THE AIM OF CONGRESS  ...  ."  PHILLIPS V. UNITED
STATES, 312 U.S. 246, 250-251.  REPEATEDLY EMPHASIZED DURING THE
CONGRESSIONAL DEBATES ON SEC. 2282 WERE THE HEAVY PECUNIARY COSTS OF
THE UNFORESEEN AND DEBILITATING INTERRUPTIONS IN THE ADMINISTRATION OF
FEDERAL LAW WHICH COULD BE WROUGHT BY A SINGLE JUDGE'S ORDER, AND THE
GREAT BURDENS ENTAILED IN COPING WITH HARASSING ACTIONS BROUGHT ONE
AFTER ANOTHER TO CHALLENGE THE OPERATION OF AN ENTIRE STATUTORY SCHEME,
WHEREVER JURISDICTION OVER GOVERNMENT OFFICIALS COULD BE ACQUIRED,
UNTIL A JUDGE WAS ULTIMATELY FOUND WHO WOULD GRANT THE DESIRED
INJUNCTION.  81 CONG. REC. 479-481, 2142-2143 (1937). 

THE PRESENT ACTION, WHICH IN FORM WAS FOR DECLARATORY RELIEF AND
WHICH IN ITS AGREED SUBSTANCE DID NOT CONTEMPLATE INJUNCTIVE RELIEF,
INVOLVES NONE OF THE DANGERS TO WHICH CONGRESS WAS ADDRESSING ITSELF. 
THE RELIEF SOUGHT AND THE ORDER ENTERED AFFECTED AN ACT OF CONGRESS IN
A TOTALLY NONCOERCIVE FASHION.  THERE WAS NO INTERDICTION OF THE
OPERATION AT LARGE OF THE STATUTE.  IT WAS DECLARED UNCONSTITUTIONAL,
BUT WITHOUT EVEN AN INJUNCTIVE SANCTION AGAINST THE APPLICATION OF THE
STATUTE BY THE GOVERNMENT TO MENDOZA-MARTINEZ.  PENDING REVIEW IN THE
COURT OF APPEALS AND IN THIS COURT, THE GOVERNMENT HAS BEEN FREE TO
CONTINUE TO APPLY THE STATUTE.  THAT BEING THE CASE, THERE IS HERE NO
CONFLICT WITH THE PURPOSE OF CONGRESS TO PROVIDE FOR THE CONVOCATION OF
A THREE-JUDGE COURT WHENEVER THE OPERATION OF A STATUTORY SCHEME MAY BE
IMMEDIATELY DISRUPTED BEFORE A FINAL JUDICIAL DETERMINATION OF THE
VALIDITY OF THE TRIAL COURT'S ORDER CAN BE OBTAINED.  THUS THERE WAS NO
REASON WHATEVER IN THIS CASE TO INVOKE THE SPECIAL AND EXTRAORDINARY
PROCEDURE OF A THREE-JUDGE COURT.  COMPARE SCHNEIDER V. RUSK, POST, P.
224, DECIDED THIS DAY. 

         III.  THE COLLATERAL-ESTOPPEL ISSUE. 

MENDOZA-MARTINEZ' SECOND AMENDED COMPLAINT FILED IN 1960 PURSUANT TO
THE SUGGESTION OF THIS COURT EARLIER THAT YEAR, CHARGED THAT "THE
GOVERNMENT OF THE UNITED STATES HAS ADMITTED THE FACT OF HIS UNITED
STATES CITIZENSHIP BY VIRTUE OF THE INDICTMENT AND JUDGMENT OF
CONVICTION (IN 1947 FOR DRAFT EVASION)  ...  AND IS THEREFORE
COLLATERALLY ESTOPPED NOW TO DENY SUCH CITIZENSHIP  ...  ."  THE
DISTRICT COURT REJECTED THIS ASSERTION.  MENDOZA-MARTINEZ RENEWS IT
HERE AS AN ALTERNATIVE GROUND FOR UPHOLDING THE JUDGMENT ENTERED BELOW
"THAT THE PLAINTIFF IS NOW, AND EVER SINCE THE DATE OF HIS BIRTH HAS
BEEN, A NATIONAL AND CITIZEN OF THE UNITED STATES."  192 F. SUPP., AT
3. 

WE TOO REJECT MENDOZA-MARTINEZ' CONTENTION ON THIS POINT.  HIS
ARGUMENT, STATED MORE FULLY, IS AS FOLLOWS:  THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940 APPLIES ONLY TO CITIZENS AND RESIDENT ALIENS.  BOTH
THE INDICTMENT AND THE JUDGMENT SPOKE IN TERMS OF HIS HAVING REMAINED
IN MEXICO FOR THE ENTIRE PERIOD FROM NOVEMBER 15, 1942, UNTIL NOVEMBER
1, 1946, WHEN HE RETURNED TO THIS COUNTRY.  (FN7)  FOR THE PERIOD FROM
SEPTEMBER 27, 1944, WHEN SEC. 401(J) BECAME EFFECTIVE, UNTIL NOVEMBER
1, 1946, HE COULD NOT HAVE BEEN IN VIOLATION OF OUR DRAFT LAWS UNLESS
HE REMAINED A CITIZEN OF THE UNITED STATES, SINCE THE DRAFT LAWS DO NOT
APPLY TO NONRESIDENT ALIENS.  THEREFORE, HE CONCLUDES, THE GOVERNMENT
MUST BE TAKEN TO HAVE ADMITTED THAT HE DID NOT LOSE HIS CITIZENSHIP BY
REMAINING OUTSIDE THE COUNTRY AFTER SEPTEMBER 27, 1944, BECAUSE IT
CHARGED HIM WITH DRAFT EVASION FOR THAT PERIOD AS WELL AS FOR THE
PERIOD PRECEDING THAT DATE. 

IT IS TRUE THAT "AS TO THOSE MATTERS IN ISSUE OR POINTS CONTROVERTED,
UPON THE DETERMINATION OF WHICH THE FINDING OR VERDICT WAS RENDERED,"
CROMWELL V. COUNTY OF SAC, 94 U.S. 351, 353, THE FINDINGS IN A PRIOR
CRIMINAL PROCEEDING MAY ESTOP A PARTY IN A SUBSEQUENT CIVIL ACTION,
EMICH MOTORS CORP. V. GENERAL MOTORS CORP., 340 U.S. 558, 568-569, AND
THAT THE UNITED STATES MAY BE ESTOPPED TO DENY EVEN AN ERRONEOUS PRIOR
DETERMINATION OF STATUS, UNITED STATES V. MOSER, 266 U.S. 236. 
HOWEVER, MENDOZA-MARTINEZ' CITIZENSHIP STATUS WAS NOT AT ISSUE IN HIS
TRIAL FOR DRAFT EVASION.  PUTTING ASIDE THE FACT THAT HE PLEADED
GUILTY, WHICH IN ITSELF MAY SUPPORT THE CONCLUSION THAT HIS CITIZENSHIP
STATUS WAS NOT LITIGATED AND THEREBY WITHOUT MORE PRECLUDE HIS
ASSERTION OF ESTOPPEL, (FN8) THE BASIC FLAW IN HIS ARGUMENT IS IN THE
ASSERTION THAT HE WAS CHARGED WITH A CONTINUING VIOLATION OF THE DRAFT
LAWS WHILE HE REMAINED IN MEXICO, PARTICULARLY AFTER SEPTEMBER 27,
1944, THE DATE ON WHICH SEC. 401(J) BECAME EFFECTIVE.  HE WAS IN FACT
CHARGED WITH A VIOLATION "ON OR ABOUT NOVEMBER 15, 1942," BECAUSE HE
"DID KNOWINGLY EVADE SERVICE  ...  IN THAT HE DID KNOWINGLY DEPART FROM
THE UNITED STATES AND GO TO A FOREIGN COUNTRY, NAMELY:  MEXICO, FOR THE
PURPOSE OF EVADING SERVICE  ...  ."  THIS CONSTITUTED THE ALLEGED
VIOLATION.  THE ADDITIONAL LANGUAGE THAT HE "DID THERE REMAIN UNTIL ON
OR ABOUT NOVEMBER 1, 1946," WAS MERELY SURPLUSAGE IN RELATION TO THE
SUBSTANTIVE OFFENSE, ALTHOUGH IT MIGHT, FOR EXAMPLE, SERVE A PURPOSE IN
RELATION TO PROBLEMS CONNECTED WITH THE TOLLING OF THE STATUTE OF
LIMITATIONS.  NO LANGUAGE APPEARS CHARGING THE ELEMENTS OF VIOLATION -
KNOWLEDGE AND PURPOSE TO EVADE - IN CONNECTION WITH IT.  THE ONLY CRIME
CHARGED IS WHAT HAPPENED "ON OR ABOUT NOVEMBER 15, 1942," AND
CONVICTION THEREON, EVEN IF IT HAD ENTAILED A FINDING AS TO MENDOZA
MARTINEZ' CITIZENSHIP ON THAT DATE, (FN9) IN NOWISE ESTOPPED THE
GOVERNMENT WITH REFERENCE TO HIS STATUS AFTER SEPTEMBER 27, 1944. 

THE TRIAL COURT'S JUDGMENT WAS WORDED NO DIFFERENTLY.  MENDOZA
MARTINEZ WAS CONVICTED OF: 

"HAVING ON OR ABOUT NOVEMBER 15TH 1942, KNOWINGLY DEPARTED FROM THE
UNITED STATES TO MEXICO, FOR THE PURPOSE OF EVADING SERVICE IN THE LAND
OR NAVAL FORCES OF THE UNITED STATES AND HAVING REMAINED THERE UNTIL ON
OR ABOUT NOVEMBER 1ST 1946." 

AGAIN, THE LANGUAGE RELATING TO THE TIME DURING WHICH MENDOZA
MARTINEZ REMAINED IN MEXICO WAS NOT TIED TO THE WORDS STATING KNOWLEDGE
AND PURPOSE TO EVADE SERVICE.  THUS, THE CONVICTION ENTAILED NO ACTUAL
OR NECESSARY FINDING ABOUT MENDOZA-MARTINEZ' CITIZENSHIP STATUS BETWEEN
SEPTEMBER 27, 1944, AND NOVEMBER 1, 1946, AND THE GOVERNMENT WAS NOT
ESTOPPED FROM DENYING HIS CITIZENSHIP IN THE PRESENT PROCEEDINGS. 

                    IV.  THE CONSTITUTIONAL ISSUES. 

                          A. BASIC PRINCIPLES. 

SINCE THE VALIDITY OF AN ACT OF CONGRESS IS INVOLVED, WE BEGIN OUR
ANALYSIS MINDFUL THAT THE FUNCTION WE ARE NOW DISCHARGING IS "THE
GRAVEST AND MOST DELICATE DUTY THAT THIS COURT IS CALLED UPON TO
PERFORM."  BLODGETT V. HOLDEN, 275 U.S. 142, 148 (SEPARATE OPINION OF
HOLMES, J.).  THIS RESPONSIBILITY WE HERE FULFILL WITH ALL RESPECT FOR
THE POWERS OF CONGRESS, BUT WITH RECOGNITION OF THE TRANSCENDENT STATUS
OF OUR CONSTITUTION. 

WE DEAL WITH THE CONTENDING CONSTITUTIONAL ARGUMENTS IN THE CONTEXT
OF CERTAIN BASIC AND SOMETIMES CONFLICTING PRINCIPLES.  CITIZENSHIP IS
A MOST PRECIOUS RIGHT.  IT IS EXPRESSLY GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION, WHICH SPEAKS IN THE MOST POSITIVE
TERMS.  (FN10)  THE CONSTITUTION IS SILENT ABOUT THE PERMISSIBILITY OF
INVOLUNTARY FORFEITURE OF CITIZENSHIP RIGHTS.  (FN11)  WHILE IT
CONFIRMS CITIZENSHIP RIGHTS, PLAINLY THERE ARE IMPERATIVE OBLIGATIONS
OF CITIZENSHIP, PERFORMANCE OF WHICH CONGRESS IN THE EXERCISE OF ITS
POWERS MAY CONSTITUTIONALLY EXACT.   ONE OF THE MOST IMPORTANT OF THESE
IS TO SERVE THE COUNTRY IN TIME OF WAR AND NATIONAL EMERGENCY.  THE
POWERS OF CONGRESS TO REQUIRE MILITARY SERVICE FOR THE COMMON DEFENSE
ARE BROAD AND FAR-REACHING, (FN12) FOR WHILE THE CONSTITUTION PROTECTS
AGAINST INVASIONS OF INDIVIDUAL RIGHTS, IT IS NOT A SUICIDE PACT. 
SIMILARLY, CONGRESS HAS BROAD POWER UNDER THE NECESSARY AND PROPER
CLAUSE TO ENACT LEGISLATION FOR THE REGULATION OF FOREIGN AFFAIRS. 
LATITUDE IN THIS AREA IS NECESSARY TO ENSURE EFFECTUATION OF THIS
INDISPENSABLE FUNCTION OF GOVERNMENT.  (FN13) 

THESE PRINCIPLES, STEMMING ON THE ONE HAND FROM THE PRECIOUS NATURE
OF THE CONSTITUTIONALLY GUARANTEED RIGHTS OF CITIZENSHIP, AND ON THE
OTHER FROM THE POWERS OF CONGRESS AND THE RELATED OBLIGATIONS OF
INDIVIDUAL CITIZENS, ARE URGED UPON US BY THE PARTIES HERE.  THE
GOVERNMENT ARGUES THAT SECS. 401(J) AND 349(A)(10) ARE VALID AS AN
EXERCISE OF CONGRESS' POWER OVER FOREIGN AFFAIRS, OF ITS WAR POWER, AND
OF THE INHERENT SOVEREIGNTY OF THE GOVERNMENT.  APPELLEES URGE THE
PROVISIONS' INVALIDITY AS NOT WITHIN ANY OF THE POWERS ASSERTED, AND AS
IMPOSING A CRUEL AND UNUSUAL PUNISHMENT. 

WE RECOGNIZE AT THE OUTSET THAT WE ARE CONFRONTED HERE WITH AN ISSUE
OF THE UTMOST IMPORT.  DEPRIVATION OF CITIZENSHIP - PARTICULARLY
AMERICAN CITIZENSHIP, WHICH IS "ONE OF THE MOST VALUABLE RIGHTS IN THE
WORLD TODAY," REPORT OF THE PRESIDENT'S COMMISSION ON IMMIGRATION AND
NATURALIZATION (1953), 235 - HAS GRAVE PRACTICAL CONSEQUENCES.  AN
EXPATRIATE WHO, LIKE CORT, HAD NO OTHER NATIONALITY BECOMES A STATELESS
PERSON - A PERSON WHO NOT ONLY HAS NO RIGHTS AS AN AMERICAN CITIZEN,
BUT NO MEMBERSHIP IN ANY NATIONAL ENTITY WHATSOEVER.  "SUCH INDIVIDUALS
AS DO NOT POSSESS ANY NATIONALITY ENJOY, IN GENERAL, NO PROTECTION
WHATEVER, AND IF THEY ARE AGGRIEVED BY A STATE THEY HAVE NO MEANS OF
REDRESS, SINCE THERE IS NO STATE WHICH IS COMPETENT TO TAKE UP THEIR
CASE.  AS FAR AS THE LAW OF NATIONS IS CONCERNED, THERE IS, APART FROM
RESTRAINTS OF MORALITY OR OBLIGATIONS EXPRESSLY LAID DOWN BY TREATY
...  NO RESTRICTION WHATEVER TO CAUSE A STATE TO ABSTAIN FROM
MALTREATING TO ANY EXTENT SUCH STATELESS INDIVIDUALS."  1 OPPENHEIM,
INTERNATIONAL LAW (8TH ED., LAUTERPACHT, 1955), SEC. 291, AT 640. 
(FN14)  THE CALAMITY IS "NOT THE LOSS OF SPECIFIC RIGHTS, THEN, BUT THE
LOSS OF A COMMUNITY WILLING AND ABLE TO GUARANTEE ANY RIGHTS WHATSOEVER
...  ."  ARENDT, THE ORIGINS OF TOTALITARIANISM (1951), 294.  THE
STATELESS PERSON MAY END UP SHUNTED FROM NATION TO NATION, THERE BEING
NO ONE OBLIGATED OR WILLING TO RECEIVE HIM, (FN15) OR, AS IN CORT'S
CASE, MAY RECEIVE THE DUBIOUS SANCTUARY OF A COMMUNIST REGIME LACKING
THE ESSENTIAL LIBERTIES PRECIOUS TO AMERICAN CITIZENSHIP.  (FN16)

                    B. THE PEREZ AND TROP CASES. 

THE BASIC PRINCIPLES HERE INVOLVED, THE GRAVITY OF THE ISSUE, AND THE
ARGUMENTS BEARING UPON CONGRESS' POWER TO FORFEIT CITIZENSHIP WERE
CONSIDERED BY THE COURT IN RELATION TO DIFFERENT PROVISIONS OF THE
NATIONALITY ACT OF 1940 IN TWO CASES DECIDED ON THE SAME DAY LESS THAN
FIVE YEARS AGO:  PEREZ V. BROWNELL, 356 U.S. 44, AND TROP V. DULLES,
356 U.S. 86. 

IN PEREZ.  SEC.  401(E), WHICH IMPOSES LOSS OF NATIONALITY FOR
"VOTING IN A POLITICAL ELECTION IN A FOREIGN STATE OR PARTICIPATING IN
AN ELECTION OR PLEBISCITE TO DETERMINE THE SOVEREIGNTY OVER FOREIGN
TERRITORY," WAS UPHELD BY A CLOSELY DIVIDED COURT AS A CONSTITUTIONAL
EXERCISE OF CONGRESS' POWER TO REGULATE FOREIGN AFFAIRS.  THE COURT
REASONED THAT SINCE WITHDRAWAL OF CITIZENSHIP OF AMERICANS WHO VOTE IN
FOREIGN ELECTIONS IS REASONABLY CALCULATED TO EFFECT THE AVOIDANCE OF
EMBARRASSMENT IN THE CONDUCT OF FOREIGN RELATIONS, SUCH WITHDRAWAL IS
WITHIN THE POWER OF CONGRESS, ACTING UNDER THE NECESSARY AND PROPER
CLAUSE.  SINCE THE COURT SUSTAINED THE APPLICATION OF SEC. 401(E) TO
DENATIONALIZE PEREZ, IT DID NOT HAVE TO DEAL WITH SEC. 401(J), UPON
WHICH THE GOVERNMENT HAD ALSO RELIED, AND IT EXPRESSLY DECLINED TO RULE
ON THE CONSTITUTIONALITY OF THAT SECTION, 356 U.S., AT 62.  THERE WERE
THREE OPINIONS WRITTEN IN DISSENT.  THE PRINCIPAL ONE, THAT OF THE
CHIEF JUSTICE, RECOGNIZED "THAT CITIZENSHIP MAY NOT ONLY BE VOLUNTARILY
RENOUNCED THROUGH EXERCISE OF THE RIGHT OF EXPATRIATION BUT ALSO BY
OTHER ACTIONS IN DEROGATION OF UNDIVIDED ALLEGIANCE TO THIS COUNTRY,"
ID., AT 68, BUT CONCLUDED THAT "THE MERE ACT OF VOTING IN A FOREIGN
ELECTION, HOWEVER, WITHOUT REGARD TO THE CIRCUMSTANCES ATTENDING THE
PARTICIPATION, IS NOT SUFFICIENT TO SHOW A VOLUNTARY ABANDONMENT OF
CITIZENSHIP," ID., AT 78. 

IN TROP, SEC. 401(G), FORFEITING THE CITIZENSHIP OF ANY AMERICAN WHO
IS GUILTY OF "DESERTING THE MILITARY OR NAVAL FORCES OF THE UNITED
STATES IN TIME OF WAR, PROVIDED HE IS CONVICTED THEREOF BY COURT
MARTIAL AND AS THE RESULT OF SUCH CONVICTION IS DISMISSED OR
DISHONORABLY DISCHARGED  ...  ," WAS DECLARED UNCONSTITUTIONAL.  THERE
WAS NO OPINION OF THE COURT.  THE CHIEF JUSTICE WROTE AN OPINION FOR
FOUR MEMBERS OF THE COURT, CONCLUDING THAT SEC. 401(G) WAS INVALID FOR
THE SAME REASON THAT HE HAD URGED AS TO SEC. 401(E) IN HIS DISSENT IN
PEREZ, AND THAT IT WAS ALSO INVALID AS A CRUEL AND UNUSUAL PUNISHMENT
IMPOSED IN VIOLATION OF THE EIGHTH AMENDMENT.  JUSTICE BRENNAN CONCEDED
THAT IT IS "PARADOXICAL TO JUSTIFY AS CONSTITUTIONAL THE EXPATRIATION
OF THE CITIZEN WHO HAS COMMITTED NO CRIME BY VOTING IN A MEXICAN
POLITICAL ELECTION, YET FIND UNCONSTITUTIONAL A STATUTE WHICH PROVIDES
FOR THE EXPATRIATION OF A SOLDIER GUILTY OF THE VERY SERIOUS CRIME OF
DESERTION IN TIME OF WAR," 356 U.S., AT 105.  NOTWITHSTANDING, HE
CONCURRED BECAUSE "THE REQUISITE RATIONAL RELATION BETWEEN THIS STATUTE
AND THE WAR POWER DOES NOT APPEAR  ...  ," ID., AT 114.  JUSTICE
FRANKFURTER, JOINED BY THREE OTHER JUSTICES, DISSENTED ON THE GROUND
THAT SEC. 401(G) DID NOT IMPOSE PUNISHMENT AT ALL, LET ALONE CRUEL AND
UNUSUAL PUNISHMENT, AND WAS WITHIN THE WAR POWERS OF CONGRESS. 

          C. SECTIONS 401(J) AND 349(A)(10) AS PUNISHMENT. 

THE PRESENT CASES PRESENT FOR DECISION THE CONSTITUTIONALITY OF A
1944, AND ITS SUCCESSOR AND PRESENT COUNTERPART, SEC. 349(A)(10) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952.  WE HAVE COME TO THE
CONCLUSION THAT THERE IS A BASIC QUESTION IN THE PRESENT CASES, THE
ANSWER TO WHICH OBVIATES A CHOICE HERE BETWEEN THE POWERS OF CONGRESS
AND THE CONSTITUTIONAL GUARANTEE OF CITIZENSHIP.  THAT ISSUE IS WHETHER
THE STATUTES HERE, WHICH AUTOMATICALLY - WITHOUT PRIOR COURT OR
ADMINISTRATIVE PROCEEDINGS - IMPOSE FORFEITURE OF CITIZENSHIP, ARE
ESSENTIALLY PENAL IN CHARACTER, AND CONSEQUENTLY HAVE DEPRIVED THE
APPELLEES OF THEIR CITIZENSHIP WITHOUT DUE PROCESS OF LAW AND WITHOUT
ACCORDING THEM THE RIGHTS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS,
INCLUDING NOTICE, CONFRONTATION, COMPULSORY PROCESS FOR OBTAINING
WITNESSES, TRIAL BY JURY, AND ASSISTANCE OF COUNSEL.  THIS ISSUE WAS
NOT RELEVANT IN TROP BECAUSE, IN CONTRAST TO SECS. 401(J) AND
349(A)(10), SEC. 401(G) REQUIRED CONVICTION BY COURT-MARTIAL FOR
DESERTION BEFORE FORFEITURE OF CITIZENSHIP COULD BE INFLICTED.  IN
PEREZ THE CONTENTION THAT SEC. 401(E) WAS PENAL IN CHARACTER WAS
IMPLIEDLY REJECTED BY THE COURT'S HOLDING, BASED ON LEGISLATIVE HISTORY
TOTALLY DIFFERENT FROM THAT UNDERLYING SECS. 401(J) AND 349(A)(10),
THAT VOTING IN A POLITICAL ELECTION IN A FOREIGN STATE "IS REGULABLE BY
CONGRESS UNDER ITS POWER TO DEAL WITH FOREIGN AFFAIRS."  356 U.S., AT
59.  COMPARE DENT V. WEST VIRGINIA, 129 U.S. 114; HAWKER V. NEW YORK,
170 U.S. 189; FLEMMING V. NESTOR, 363 U.S. 603.  INDEED, IN TROP THE
CHIEF JUSTICE OBSERVED THAT "SECTION 401(J) DECREES LOSS OF CITIZENSHIP
WITHOUT PROVIDING ANY SEMBLANCE OF PROCEDURAL DUE PROCESS WHEREBY THE
GUILT OF THE DRAFT EVADER MAY BE DETERMINED BEFORE THE SANCTION IS
IMPOSED  ...  ," 356 U.S., AT 94, AND JUSTICE FRANKFURTER IN DISSENT
ALLUDED TO THE DUE PROCESS OVERTONES OF THE REQUIREMENT IN SEC.  401(G)
OF PRIOR CONVICTION FOR DESERTION BY COURT-MARTIAL, ID., AT 116-117. 

IT IS FUNDAMENTAL THAT THE GREAT POWERS OF CONGRESS TO CONDUCT WAR
AND TO REGULATE THE NATION'S FOREIGN RELATIONS ARE SUBJECT TO THE
CONSTITUTIONAL REQUIREMENTS OF DUE PROCESS.  (FN17)  THE IMPERATIVE
NECESSITY FOR SAFEGUARDING THESE RIGHTS TO PROCEDURAL DUE PROCESS UNDER
THE GRAVEST OF EMERGENCIES HAS EXISTED THROUGHOUT OUR CONSTITUTIONAL
HISTORY, FOR IT IS THEN, UNDER THE PRESSING EXIGENCIES OF CRISIS, THAT
THERE IS THE GREATEST TEMPTATION TO DISPENSE WITH FUNDAMENTAL
CONSTITUTIONAL GUARANTEES WHICH, IT IS FEARED, WILL INHIBIT
GOVERNMENTAL ACTION.  "THE CONSTITUTION OF THE UNITED STATES IS A LAW
FOR RULERS AND PEOPLE, EQUALLY IN WAR AND IN PEACE, AND COVERS WITH THE
SHIELD OF ITS PROTECTION ALL CLASSES OF MEN, AT ALL TIMES, AND UNDER
ALL CIRCUMSTANCES."  EX PARTE MILLIGAN, 4 WALL.  2, 120-121.  (FN18)
THE RIGHTS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS ARE "PRESERVED
TO EVERY ONE ACCUSED OF CRIME WHO IS NOT ATTACHED TO THE ARMY, OR NAVY,
OR MILITIA IN ACTUAL SERVICE."  ID., AT 123.  (FN19)  "IF SOCIETY IS
DISTURBED BY CIVIL COMMOTION - IF THE PASSIONS OF MEN ARE AROUSED AND
THE RESTRAINTS OF LAW WEAKENED, IF NOT DISREGARDED - THESE SAFEGUARDS
NEED, AND SHOULD RECEIVE, THE WATCHFUL CARE OF THOSE INTRUSTED WITH THE
GUARDIANSHIP OF THE CONSTITUTION AND LAWS.  IN NO OTHER WAY CAN WE
TRANSMIT TO POSTERITY UNIMPAIRED THE BLESSINGS OF LIBERTY, CONSECRATED
BY THE SACRIFICES OF THE REVOLUTION."  ID., AT 124. 

WE HOLD SECS. 401(J) AND 349(A)(10) INVALID BECAUSE IN THEM CONGRESS
HAS PLAINLY EMPLOYED THE SANCTION OF DEPRIVATION OF NATIONALITY AS A
PUNISHMENT - FOR THE OFFENSE OF LEAVING OR REMAINING OUTSIDE THE
COUNTRY TO EVADE MILITARY SERVICE - WITHOUT AFFORDING THE PROCEDURAL
SAFEGUARDS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS.  (FN20)  OUR
FOREFATHERS "INTENDED TO SAFEGUARD THE PEOPLE OF THIS COUNTRY FROM
PUNISHMENT WITHOUT TRIAL BY DULY CONSTITUTED COURTS  ...  .  AND EVEN
THE COURTS TO WHICH THIS IMPORTANT FUNCTION WAS ENTRUSTED WERE
COMMANDED TO STAY THEIR HANDS UNTIL AND UNLESS CERTAIN TESTED
SAFEGUARDS WERE OBSERVED.  AN ACCUSED IN COURT MUST BE TRIED BY AN
IMPARTIAL JURY, HAS A RIGHT TO BE REPRESENTED BY COUNSEL, AND MUST BE
CLEARLY INFORMED OF THE CHARGE AGAINST HIM  ...  ."  UNITED STATES V.
LOVETT, 328 U.S. 303, 317.  SEE ALSO CHAMBERS V. FLORIDA, 309 U.S. 227,
235-238. 

AS THE GOVERNMENT CONCEDES, SECS. 401(J) AND 349(A)(10) AUTOMATICALLY
STRIP AN AMERICAN OF HIS CITIZENSHIP, WITH CONCOMITANT DEPRIVATION "OF
ALL THAT MAKES LIFE WORTH LIVING," NG FUNG HO V. WHITE, 259 U.S. 276,
284-285, WHENEVER A CITIZEN DEPARTS FROM OR REMAINS OUTISDE THE
JURISDICTION OF THIS COUNTRY FOR THE PURPOSE OF EVADING HIS MILITARY
OBLIGATIONS.  CONVICTION FOR DRAFT EVASION, AS CORT'S CASE ILLUSTRATES,
IS NOT PREREQUISITE TO THE OPERATION OF THIS SANCTION.  (FN21)
INDEPENDENTLY OF PROSECUTION, FORFEITURE OF CITIZENSHIP ATTACHES WHEN
THE STATUTORY SET OF FACTS DEVELOPS.  IT IS ARGUED THAT THE
AVAILABILITY AFTER THE FACT OF ADMINISTRATIVE AND JUDICIAL PROCEEDINGS,
INCLUDING THE MACHINERY THE COURT APPROVED LAST TERM IN RUSK V. CORT,
369 U.S. 367, TO CONTEST THE VALIDITY OF THE SANCTION MEETS THE MEASURE
OF DUE PROCESS.  BUT THE LEGISLATIVE HISTORY AND JUDICIAL EXPRESSION
WITH RESPECT TO EVERY CONGRESSIONAL ENACTMENT RELATING TO THE
PROVISIONS IN QUESTION DATING BACK TO 1865 ESTABLISH THAT FORFEITURE OF
CITIZENSHIP IS A PENALTY FOR THE ACT OF LEAVING OR STAYING OUTSIDE THE
COUNTRY TO AVOID THE DRAFT.  THIS BEING SO, THE FIFTH AND SIXTH
AMENDMENTS MANDATE THAT THIS PUNISHMENT CANNOT BE IMPOSED WITHOUT A
PRIOR CRIMINAL TRIAL AND ALL ITS INCIDENTS, INCLUDING INDICTMENT,
NOTICE, CONFRONTATION JURY TRIAL, ASSISTANCE OF COUNSEL, AND COMPULSORY
PROCESS FOR OBTAINING WITNESSES.  IF THE SANCTION THESE SECTIONS IMPOSE
IS PUNISHMENT, AND IT PLAINLY IS, THE PROCEDURAL SAFEGUARDS REQUIRED AS
INCIDENTS OF A CRIMINAL PROSECUTION ARE LACKING.  WE NEED GO NO
FURTHER. 

THE PUNITIVE NATURE OF THE SANCTION HERE IS EVIDENT UNDER THE TESTS
TRADITIONALLY APPLIED TO DETERMINE WHETHER AN ACT OF CONGRESS IS PENAL
OR REGULATORY IN CHARACTER, EVEN THOUGH IN OTHER CASES THIS PROBLEM HAS
BEEN EXTREMELY DIFFICULT AND ELUSIVE OF SOLUTION.  WHETHER THE SANCTION
INVOLVES AN AFFIRMATIVE DISABILITY OR RESTRAINT, (FN22) WHETHER IT HAS
HISTORICALLY BEEN REGARDED AS A PUNISHMENT, (FN23) WHETHER IT COMES
INTO PLAY ONLY ON A FINDING OF SCIENTER, (FN24) WHETHER ITS OPERATION
WILL PROMOTE THE TRADITIONAL AIMS OF PUNISHMENT - RETRIBUTION AND
DETERRENCE, (FN25) WHETHER THE BEHAVIOR TO WHICH IT APPLIES IS ALREADY
A CRIME, (FN26) WHETHER AN ALTERNATIVE PURPOSE TO WHICH IT MAY
RATIONALLY BE CONNECTED IS ASSIGNABLE FOR IT, (FN27) AND WHETHER IT
APPEARS EXCESSIVE IN RELATION TO THE ALTERNATIVE PURPOSE ASSIGNED
(FN28) ARE ALL RELEVANT TO THE INQUIRY, AND MAY OFTEN POINT IN
DIFFERING DIRECTIONS.  ABSENT CONCLUSIVE EVIDENCE OF CONGRESSIONAL
INTENT AS TO THE PENAL NATURE OF A STATUTE, THESE FACTORS MUST BE
CONSIDERED IN RELATION TO THE STATUTE ON ITS FACE.  HERE, ALTHOUGH WE
ARE CONVINCED THAT APPLICATION OF THESE CRITERIA TO THE FACE OF THE
STATUTES SUPPORTS THE CONCLUSION THAT THEY ARE PUNITIVE, A DETAILED
EXAMINATION ALONG SUCH LINES IS UNNECESSARY, BECAUSE THE OBJECTIVE
MANIFESTATIONS OF CONGRESSIONAL PURPOSE INDICATE CONCLUSIVELY THAT THE
PROVISIONS IN QUESTION CAN ONLY BE INTERPRETED AS PUNITIVE.  (FN29)  A
STUDY OF THE HISTORY OF THE PREDECESSOR OF SEC. 401(J), WHICH "IS WORTH
A VOLUME OF LOGIC," NEW YORK TRUST CO. V. EISNER, 256 U.S. 345, 349,
COUPLED WITH A READING OF CONGRESS' REASONS FOR ENACTING SEC. 401(J),
COMPELS A CONCLUSION THAT THE STATUTE'S PRIMARY FUNCTION IS TO SERVE AS
AN ADDITIONAL PENALTY FOR A SPECIAL CATEGORY OF DRAFT EVADER.  (FN30)
COMPARE TROP V. DULLES, SUPRA, 356 U.S., AT 107-110 (BRENNAN, J.
CONCURRING.).

             1.  THE PREDECESSOR STATUTE AND JUDICIAL
CONSTRUCTION. 

THE SUBSECTIONS HERE IN QUESTION HAVE THEIR ORIGIN IN PART OF A CIVIL
WAR "ACT TO AMEND THE SEVERAL ACTS HERETOFORE PASSED TO PROVIDE FOR THE
ENROLLING AND CALLING OUT THE NATIONAL FORCES, AND FOR OTHER
PURPOSES."  ACT OF MARCH 3, 1865, 13 STAT. 487.  SECTION 21 OF THAT
ACT, DEALING WITH DESERTERS AND DRAFT EVADERS, WAS IN TERMS PUNITIVE,
PROVIDING THAT "IN ADDITION TO THE OTHER LAWFUL PENALTIES OF THE CRIME
OF DESERTION," PERSONS GUILTY THEREOF "SHALL BE DEEMED AND TAKEN TO
HAVE VOLUNTARILY RELINQUISHED AND FORFEITED THEIR RIGHTS OF CITIZENSHIP
AND THEIR RIGHTS TO BECOME CITIZENS  ...  AND ALL PERSONS WHO, BEING
DULY ENROLLEED, SHALL DEPART THE JURISDICTION OF THE DISTRICT IN WHICH
HE IS ENROLLED, OR GO BEYOND THE LIMITS OF THE UNITED STATES, WITH
INTENT TO AVOID ANY DRAFT INTO THE MILITARY OR NAVAL SERVICE, DULY
ORDERED, SHALL BE LIABLE TO THE PENALTIES OF THIS SECTION."  (FN31) 

THE DEBATES IN CONGRESS IN 1865 CONFIRM THAT THE USE OF PUNITIVE
LANGUAGE IN SEC. 21 WAS NOT ACCIDENTAL.  THE SECTION AS ORIGINALLY
PROPOSED INFLICTED LOSS OF RIGHTS OF CITIZENSHIP ONLY ON DESERTERS. 
SENATOR MORRILL OF MAINE PROPOSED AMENDING THE SECTION TO COVER PERSONS
WHO LEAVE THE COUNTRY TO AVOID THE DRAFT, STATING, "I DO NOT SEE WHY
THE SAME PRINCIPLE SHOULD NOT EXTEND TO THOSE WHO LEAVE THE COUNTRY TO
AVOID THE DRAFT."  CONG.  GLOBE, 38TH CONG., 2D SESS. 642 (1865).  THIS
"SAME PRINCIPLE" WAS PUNITIVE, BECAUSE SENATOR MORRILL WAS ALSO WORRIED
THAT INSOFAR AS THE SECTION AS ORIGINALLY PROPOSED "PROVIDES FOR A
PENALTY" TO BE IMPOSED ON PERSONS WHO HAD THERETOFORE DESERTED, THERE
WAS QUESTION "WHETHER IT IS NOT AN EX POST FACTO LAW, WHETHER IT IS NOT
FIXING A PENALTY FOR AN ACT ALREADY DONE."  IBID.  SENATOR JOHNSON OF
MARYLAND ATTEMPTED TO ALLAY SENATOR MORRILL'S CONCERN BY EXPLAINING
THAT: 

"THE PENALTIES ARE NOT IMPOSED UPON THOSE WHO HAVE DESERTED, IF
NOTHING ELSE OCCURS, BUT ONLY ON THOSE WHO HAVE DESERTED AND WHO SHALL
NOT RETURN WITHIN SIXTY DAYS.  THE CRIME FOR WHICH THE PUNISHMENT IS
INFLICTED IS MADE UP OF THE FACT OF AN ANTECEDENT DESERTION, AND A
FAILURE TO RETURN WITHIN SIXTY DAYS.  IT IS CLEARLY WITHIN THE POWER OF
CONGRESS."  IBID. 

THIS EXPLANATION SATISFIED THE SENATE SUFFICIENTLY SO THAT THEY
ACCEPTED THE SECTION, WITH SENATOR MORRILL'S AMENDMENT, ALTHOUGH
SENATOR HENDRICKS OF INDIANA MADE ONE LAST SPEECH IN AN EFFORT TO
CONVINCE HIS COLLEAGUES OF THE BILL'S EX POST FACTO NATURE AND, EVEN
APART FROM THAT, OF THE EXCESSIVENESS OF THE PUNISHMENT, PARTICULARLY
AS APPLIED TO DRAFT EVADERS: 

"IT SEEMS TO ME TO BE VERY CLEAR THAT THIS SECTION PROPOSES TO PUNISH
DESERTIONS WHICH HAVE ALREADY TAKEN PLACE, WITH A PENALTY WHICH THE LAW
DOES NOT ALREADY PRESCRIBE.  IN OTHER WORDS IT IS AN EX POST FACTO
CRIMINAL LAW WHICH I THINK WE CANNOT PASS  ...  .  ONE OF THE PENALTIES
KNOWN VERY WELL TO THE CRIMINAL LAWS OF THE COUNTRY IS THE DENIAL OF
THE RIGHT OF SUFFRAGE AND THE RIGHT TO HOLD OFFICES OF TRUST OR
PROFIT. 

"IT SEEMS TO ME THIS OBJECTION TO THE SECTION IS VERY CLEAR, BUT I
DESIRE TO SUGGEST FURTHER THAT THIS SECTION PUNISHES DESERTIONS THAT
MAY HEREAFTER TAKE PLACE IN THE SAME MANNER, AND IT IS KNOWN TO
SENATORS THAT ONE DESERTION RECENTLY CREATED IS NOT REPORTING WHEN
NOTIFIED OF THE DRAFT  ...  . I SUBMIT TO SENATORS THAT IT IS A
HORRIBLE THING TO DEPRIVE A MAN OF HIS CITIZENSHIP, OF THAT WHICH IS
HIS PRIDE AND HONOR, FROM THE MERE FACT THAT HE HAS BEEN UNABLE TO
REPORT UPON THE DAY SPECIFIED AFTER BEING NOTIFIED THAT HE HAS BEEN
DRAFTED.  CERTAINLY THE PUNISHMENT FOR DESERTION IS SEVERE ENOUGH.  IT
EXTENDS NOW FROM THE DENIAL OF PAY UP TO DEATH; THAT ENTIRE COMPASS IS
GIVEN FOR THE PUNISHMENT OF THIS OFFENSE.  WHY ADD THIS OTHER?  IT
CANNOT DO ANY GOOD."  ID., AT 643. 

IN THE HOUSE, THE MOTION OF NEW YORK'S REPRESENTATIVE TOWNSEND TO
STRIKE THE SECTION AS A "DESPOTIC MEASURE" WHICH WOULD "HAVE THE EFFECT
TO DEPRIVE FIFTY THOUSAND, AND I DO NOT KNOW BUT ONE HUNDRED THOUSAND,
PEOPLE OF THEIR RIGHTS AND PRIVILEGES," WAS MET BY THE ARGUMENT OF
REPRESENTATIVE SCHENCK OF OHIO, THE CHAIRMAN OF THE MILITARY COMMITTEE,
THAT "HERE IS A PENALTY THAT IS LAWFUL, WISE, PROPER, AND THAT SHOULD
BE ADDED TO THE OTHER LAWFUL PENALTIES THAT NOW EXIST AGAINST
DESERTERS."  ID., AT 1155.  AFTER REPRESENTATIVE WILSON OF IOWA
PROPOSED AN AMENDMENT, LATER ACCEPTED AND PLACED IN THE ENACTED VERSION
OF THE BILL, EXTENDING THE DRAFT-EVASION PORTION TO APPLY TO PERSONS
LEAVING "THE DISTRICT IN WHICH THEY ARE ENROLLED" IN ADDITION TO THOSE
LEAVING THE COUNTRY, REPRESENTATIVE J.C. ALLEN OF ILLINOIS RAISED THE
EX POST FACTO OBJECTION TO THE SECTION AS A WHOLE.  ID., AT 1155-1156. 
REPRESENTATIVE SCHENCK ANSWERED HIM MUCH AS SENATOR JOHNSON HAD REPLIED
IN THE SENATE:    "THE GENTLEMAN FROM ILLINOIS (MR. J.C. ALLEN)
MISAPPREHENDS THIS SECTION FROM NOT HAVING LOOKED CAREFULLY, AS I
THINK, INTO ITS LANGUAGE.  HE THINKS IT RETROACTIVE.  IT IS NOT SO.  IT
DOES NOT PROVIDE FOR PUNISHING THOSE WHO HAVE DESERTED IN THEIR
CHARACTER OF DESERTERS ACQUIRED BY HAVING GONE BEFORE THE PASSAGE OF
THE LAW, BUT OF THOSE ONLY, WHO, BEING DESERTERS, SHALL NOT RETURN AND
REPORT THEMSELVES FOR DUTY WITHIN SIXTY DAYS.  IF THE GENTLEMAN LOOKS
AT THE LANGUAGE OF THE SECTION, HE WILL FIND THAT WE HAVE CAREFULLY
AVOIDED MAKING IT RETROACTIVE.  WE GIVE THOSE WHO HAVE DESERTED THEIR
COUNTRY AND THEIR FLAG SIXTY DAYS FOR REPENTANCE AND RETURN. 

"MR. J.C. ALLEN.  WILL NOT THE INFLICTION OF THIS PENALTY ON THOSE
WHO HAVE FAILED TO RETURN TO THE ARMY BE AN ADDITIONAL PENALTY THAT DID
NOT EXIST AT THE TIME THEY DESERTED? 

"MR. SCHENCK.  YES, SIR. 

"MR. J.C. ALLEN.  DOES NOT THAT MAKE THE LAW RETROACTIVE? 

"MR. SCHENCK.  THEY ARE DESERTERS NOW.  WE TAKE THEM UP IN THEIR
PRESENT STATUS AND CHARACTER AS DESERTERS, AND PUNISH THEM FOR
CONTINUING IN THAT CHARACTER.  THE GENTLEMAN REFERS TO LAWYERS HERE.  I
BELIEVE HE IS A GOOD LAWYER HIMSELF.  DOES HE NOT KNOW THAT IF A MAN
STEALS A HORSE AND RUNS AWAY WITH IT TO THE NEXT COUNTY IT IS A
CONTINUAL ACT OF LARCENY UNTIL HE DELIVERS UP THE HORSE?"  ID., AT
1156. 

THE SIGNIFICANCE OF THESE DEBATES IS, AS THESE EXCERPTS PLAINLY SHOW,
THAT WHILE THERE WAS A DIFFERENCE IN BOTH HOUSES AS TO WHETHER THE
STATUTE WOULD BE AN EX POST FACTO LAW, THERE WAS AGREEMENT AMONG ALL
THE SPEAKERS ON BOTH SIDES OF THAT ISSUE, AS WELL AS ON BOTH SIDES OF
THE MERITS OF THE BILL GENERALLY, THAT DEPRIVATION OF RIGHTS OF
CITIZENSHIP FOR LEAVING THE COUNTRY TO EVADE THE DRAFT WAS A "PENALTY"
AND "PUNISHMENT" FOR A "CRIME" AND AN "OFFENSE" AND A VIOLATION OF
"CRIMINAL LAW." 

A NUMBER OF STATE COURT JUDICIAL DECISIONS RENDERED SHORTLY AFTER THE
CIVIL WAR LEND IMPRESSIVE SUPPORT TO THE CONCLUSION THAT THE
PREDECESSOR OF SECS. 401(J) AND 349(A)(10), SEC. 21 OF THE 1865
STATUTE, WAS A CRIMINAL STATUTE IMPOSING AN ADDITIONAL PUNISHMENT FOR
DESERTION AND DRAFT EVASION.  THE FIRST AND MOST IMPORTANT OF THESE WAS
HUBER V. REILY, 53 PA. 112 (1866), IN WHICH, AS IN MOST OF THE CASES
WHICH FOLLOWED, (FN32) THE PLAINTIFF HAD BROUGHT AN ACTION AGAINST THE
ELECTION JUDGE OF HIS HOME TOWNSHIP, ALLEGING THAT THE DEFENDANT HAD
REFUSED TO RECEIVE HIS BALLOT ON THE GROUND THAT PLAINTIFF WAS A
DESERTER AND THEREBY DISENFRANCHISED UNDER SEC. 21, AND THAT SUCH
REFUSAL WAS WRONGFUL BECAUSE SEC. 21 WAS UNCONSTITUTIONAL.  THE
ASSERTED GROUNDS OF INVALIDITY WERE THAT SEC. 21 WAS AN EX POST FACTO
LAW, THAT IT WAS AN ATTEMPT BY CONGRESS TO REGULATE SUFFRAGE IN THE
STATES AND THEREFORE OUTSIDE CONGRESS' SPHERE OF POWER, AND THAT IT
PROPOSED TO INFLICT PAINS AND PENALTIES WITHOUT A TRIAL AND CONVICTION,
AND WAS THEREFORE PROHIBITED BY THE BILL OF RIGHTS.  IN AN OPINION BY
JUSTICE STRONG, LATER A MEMBER OF THIS COURT, THE PENNSYLVANIA SUPREME
COURT FIRST CHARACTERIZED THE STATUTE IN A WAY WHICH COMPELLED
DISCUSSION OF THE ASSERTED GROUNDS OF UNCONSTITUTIONALITY: 

"THE ACT OF CONGRESS IS HIGHLY PENAL.  IT IMPOSES FORFEITURE OF
CITIZENSHIP AND DEPRIVATION OF THE RIGHTS OF CITIZENSHIP AS PENALTIES
FOR THE COMMISSION OF A CRIME.  ITS AVOWED PURPOSE IS TO ADD TO THE
PENALTIES WHICH THE LAW HAD PREVIOUSLY AFFIXED TO THE OFFENCE OF
DESERTION FROM THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, AND
IT DENOMINATES THE ADDITIONAL SANCTIONS PROVIDED AS PENALTIES."  53
PA., AT 114-115. 

IT THEN ANSWERED THE EX POST FACTO ARGUMENT AS IT HAD BEEN ANSWERED
ON THE FLOOR OF CONGRESS, THAT THE OFFENSE COULD AS WELL BE IN THE
CONTINUED REFUSAL TO RENDER SERVICE AS IN THE ORIGINAL DESERTION.  THE
SECOND CONTENTION WAS MET WITH THE STATEMENT THAT "THE ENACTMENT
OPERATES UPON AN INDIVIDUAL OFFENDER, PUNISHES HIM FOR VIOLATION OF THE
FEDERAL LAW BY DEPRIVATION OF HIS CITIZENSHIP OF THE UNITED STATES, BUT
IT LEAVES EACH STATE TO DETERMINE FOR ITSELF WHETHER SUCH AN INDIVIDUAL
MAY BE A VOTER.  IT DOES NO MORE THAN INCREASE THE PENALTIES OF THE LAW
UPON THE COMMISSION OF CRIME."  ID., AT 116.  "THE THIRD OBJECTION,"
THE COURT CONTINUED, "WOULD BE A VERY GRAVE ONE IF THE ACT DOES IN
REALITY IMPOSE PAINS AND PENALTIES BEFORE AND WITHOUT A CONVICTION BY
DUE PROCESS OF LAW."  ID., AT 116-117.  THE COURT THEN SUMMARIZED THE
PROTECTIONS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS, AND CONCLUDED
THAT IT WAS NOT CONSISTENT WITH THESE RIGHTS TO EMPOWER A "JUDGE OF
ELECTIONS OR A BOARD OF ELECTION OFFICERS CONSTITUTED UNDER STATE LAWS
...  TO ADJUDGE THE GUILT OR INNOCENCE OF AN ALLEGED VIOLATOR OF THE
LAWS OF THE UNITED STATES."  ID., AT 117.  HOWEVER, THE COURT DECIDED
THAT SINCE THE PENALTY CONTEMPLATED BY SEC. 21 "IS ADDED TO WHAT THE
LAW HAD PREVIOUSLY ENACTED TO BE THE PENALTY OF DESERTION, AS
IMPRISONMENT IS SOMETIMES ADDED TO PUNISHMENT BY FINE," IT MUST HAVE
BEEN INTENDED "THAT IT SHOULD BE INCURRED IN THE SAME WAY, AND IMPOSED
BY THE SAME TRIBUNAL THAT WAS AUTHORIZED TO IMPOSE THE OTHER PENALTIES
FOR THE OFFENCE."  ID., AT 119.  "THE FORFEITURE WHICH IT PRESCRIBES,
LIKE ALL OTHER PENALTIES FOR DESERTION, MUST BE ADJUDGED TO THE
CONVICTED PERSON, AFTER TRIAL BY A COURT-MARTIAL, AND SENTENCE
APPROVED.  FOR THE CONVICTION AND SENTENCE OF SUCH A COURT THERE CAN BE
NO SUBSTITUTE."  ID., AT 120.  ACCORDINGLY, SINCE THE PLAINTIFF HAD NOT
BEEN SO CONVICTED, THE COURT HELD THAT HE WAS NOT DISENFRANCHISED. 

SUBSEQUENT STATE COURT DECISIONS IN THE POST-CIVIL WAR PERIOD
FOLLOWED HUBER V. REILY, BOTH IN RESULT AND REASONING.  STATE V.
SYMONDS, 57 ME. 148 (1869); SEVERANCE V. HEALEY, 50 N.H. 448 (1870);
GOTCHEUS V. MATHESON, 58 BARB.  (N.Y.)  152 (1870); MCCAFFERTY V.
GUYER, 59 PA. 109 (1868). 

ULTIMATELY AND SIGNIFICANTLY, IN KURTZ V. MOFFITT, 115 U.S. 487, A
CASE DEALING WITH THE QUESTION WHETHER A CITY POLICE OFFICER HAD THE
POWER TO ARREST A MILITARY DESERTER, THIS COURT RECOGNIZED BOTH THE
NATURE OF THE SANCTION IMPOSED BY SEC. 21 AND THE ATTENDANT NECESSITY
OF PROCEDURAL SAFEGUARDS, APPROVINGLY CITING THE ABOVE DECISIONS: 

"THE PROVISIONS OF SECS. 1996 AND 1998, WHICH RE-ENACT THE ACT OF
MARCH 3, 1865, CH.  79, SEC. 21, 13 STAT. 490, AND SUBJECT EVERY PERSON
DESERTING THE MILITARY SERVICE OF THE UNITED STATES TO ADDITIONAL
PENALTIES, NAMELY, FORFEITURE OF ALL RIGHTS OF CITIZENSHIP, AND
DISQUALIFICATION TO HOLD ANY OFFICE OF TRUST OR PROFIT, CAN ONLY TAKE
EFFECT UPON CONVICTION BY A COURT MARTIAL, AS WAS CLEARLY SHOWN BY MR.
JUSTICE STRONG, WHEN A JUDGE OF THE SUPREME COURT OF PENNSYLVANIA, IN
HUBER V. REILY, 53 PENN.  ST. 12, AND HAS BEEN UNIFORMLY HELD BY THE
CIVIL COURTS AS WELL AS BY THE MILITARY AUTHORITIES.  STATE V. SYMONDS,
57 MAINE, 148; SEVERANCE V. HEALY, 50 N.H. 448; GOETCHEUS V.
MATTHEWSON, 61 N.Y. 420; WINTHROP'S DIGEST OF JUDGE ADVOCATE GENERAL'S
OPINIONS, 225."  115 U.S., AT 501-502. 

DISTRIBUTED IN THE REVISED STATUTES AS SECS. 1996 AND 1998, UNTIL 1912,
WHEN CONGRESS RE-ENACTED IT WITH AN AMENDMENT MAKING IT INAPPLICABLE TO
PEACETIME VIOLATIONS AND GIVING THE PRESIDENT POWER TO MITIGATE OR
REMIT PUNISHMENT PREVIOUSLY IMPOSED ON PEACETIME VIOLATORS, ACT OF
AUGUST 22, 1912, 37 STAT. 356.  THE LEGISLATIVE HISTORY OF THAT
AMENDMENT IS ALSO INSTRUCTIVE FOR OUR PRESENT INQUIRY.  THE DISCUSSION
IN BOTH HOUSES HAD REFERENCE ONLY TO THE PENALTIES AS OPERATIVE ON
DESERTERS, NO DOUBT BECAUSE THERE WAS NO PEACETIME DRAFT TO EVADE, BUT
SINCE THE 1865 STATUTE DEALT WITHOUT DISTINCTION WITH BOTH DESERTION
AND LEAVING THE JURISDICTION TO EVADE, THERE IS NO REASON TO SUPPOSE
THE DISCUSSION QUOTED BELOW TO BE ANY LESS APPLICABLE TO THE LATTER
TYPE OF MISCONDUCT.  THE HOUSE COMMITTEE REPORT, H.R.  REP. NO. 335,
62D CONG., 2D SESS. (1912), WHICH WAS QUOTED IN ITS ENTIRETY IN THE
SENATE COMMITTEE REPORT, S. REP. NO. 910, 62D CONG., 2D SESS. 3-6
(1912), STATED THAT "IN ADDITION TO THE SERVICE PENALTY IMPOSED BY THE
COURT-MARTIAL, THE LAW, AS IT NOW STANDS, IMPOSES THE FURTHER AND MOST
DRASTIC PUNISHMENT OF LOSS OF RIGHTS OF CITIZENSHIP  ...  .  THERE ARE
IN THE UNITED STATES TO-DAY THOUSANDS OF MEN WHO ARE LITERALLY MEN
WITHOUT A COUNTRY AND THEIR NUMBERS WILL BE CONSTANTLY ADDED TO UNTIL
THE DRASTIC CIVIL-WAR MEASURE WHICH ADDS THIS HEAVY PENALTY TO AN
ALREADY SEVERE PUNISHMENT IMPOSED BY MILITARY LAW, IS REPEALED."  H.R.
REP. NO. 335, SUPRA, AT 2.  IN REPORTING THE BILL OUT OF THE COMMITTEE
ON NAVAL AFFAIRS, REPRESENTATIVE ROBERTS OF MASSACHUSETTS, ITS AUTHOR,
STATED THAT "THE BILL NOW UNDER CONSIDERATION IS INTENDED TO REMOVE ONE
OF THE HARSHEST PENALTIES THAT CAN BE IMPOSED UPON A MAN FOR AN
OFFENSE, TO WIT, THE LOSS OF RIGHTS OF CITIZENSHIP  ...  .  SUCH A
DRASTIC PENALTY WAS ENTIRELY TOO SEVERE TO BE IMPOSED UPON AN AMERICAN
CITIZEN IN TIME OF PEACE."  HE DETAILED THE PENALTIES METED OUT BY
COURT-MARTIAL FOR DESERTION, AND THEN REFERRED TO THE "ADDITIONAL
PENALTY OF LOSS OF CITIZENSHIP," WHICH, HE CONCLUDED, IS "A BARBAROUS
PUNISHMENT."  48 CONG. REC. 2903 (1912).  SENATOR BRISTOW OF KANSAS, A
MEMBER OF HIS CHAMBER'S COMMITTEE ON MILITARY AFFAIRS, ALSO REFERRED IN
DISCUSSING THE BILL TO THE FORFEITURE OF RIGHTS OF CITIZENSHIP AS A
"PENALTY," AND SAID THAT THERE IS NO REASON WHY A PEACETIME OFFENDER
SHOULD BE "PUNISHED SO SEVERELY."  48 CONG. REC. 9542 (1912). 

A SOMEWHAT SIMILAR AMENDMENT HAD BEEN PASSED BY BOTH HOUSES OF
CONGRESS IN 1908 BUT VETOED BY THE PRESIDENT.  (FN33)  THE HOUSE
COMMITTEE REPORT ON THAT OCCASION, H.R.  REP. NO. 1340, 60TH CONG., 1ST
SESS. (1908), CONSISTED MAINLY OF A LETTER FROM THE SECRETARY OF THE
NAVY TO THE CONGRESS, AND OF HIS ANNUAL REPORT.  IN BOTH DOCUMENTS HE
REFERRED TO LOSS OF CITIZENSHIP AS A "PUNISHMENT," AND AS ONE OF THE
"PENALTIES" FOR DESERTION.  REPRESENTATIVE ROBERTS SPOKE IN 1908, AS HE
WAS TO DO ONCE MORE IN 1912, OF THE "ENORMITY OF THE PUNISHMENT" AND
THE "HORRIBLE PUNISHMENT," AND SAID, "CONVICTION ITSELF UNDER THE
EXISTING LAW FORFEITS CITIZENSHIP.  THAT IS THE MONSTROSITY OF THE
LAW."  43 CONG. REC. 111 (1908).  THE ENTIRE DISCUSSION, ID., AT 110
114, WAS BASED ON THE PREMISE THAT LOSS OF CITIZENSHIP IS A PUNISHMENT
FOR DESERTION, THE POINT AT ISSUE, AS IN 1912, BEING WHETHER IT WAS TOO
SEVERE A PUNISHMENT FOR PEACETIME IMPOSITION.  AT ONE POINT
REPRESENTATIVE ROBERTS SAID, "LOSS OF CITIZENSHIP IS A PUNISHMENT," TO
WHICH REPRESENTATIVE HULL OF IOWA REPLIED, "CERTAINLY."  ID., AT 114. 

THE PORTION OF THE 1865 STATUTE WHICH DEALT WITH FLIGHT FROM THE
JURISDICTION TO AVOID THE DRAFT.  HOWEVER, IN CONNECTION WITH THE
PROVISION GOVERNING LOSS OF CITIZENSHIP FOR DESERTION, WHICH WAS
ENACTED AS SEC. 401(G) AND DECLARED UNCONSTITUTIONAL IN TROP V. DULLES,
SUPRA, THE PRESIDENT'S COMMITTEE OF ADVISERS REPORTED THAT THE
PROVISIONS OF THE 1865 ACT HAD BEEN "DISTINCTLY PENAL IN CHARACTER,"
AND CONCLUDED THAT "THEY MUST, THEREFORE, BE CONSTRUED STRICTLY, AND
THE PENALTIES TAKE EFFECT ONLY UPON CONVICTION BY A COURT MARTIAL." 
(FN34)  CODIFICATION OF THE NATIONALITY LAWS OF THE UNITED STATES, 76TH
CONG., 1ST SESS. 68 (COMM. PRINT 1939).  SECTION 401(G) WAS THEREFORE
WORDED SO THAT LOSS OF NATIONALITY COULD ONLY OCCUR UPON CONVICTION FOR
DESERTION BY COURT-MARTIAL.  WHEN, HOWEVER, SEC. 401(J) WAS ENACTED IN
1944, NO SUCH PROCEDURAL SAFEGUARDS WERE BUILT IN.  SEE TROP V. DULLES,
SUPRA, AT 93-94.  THUS, WHEREAS FOR JUSTICE BRENNAN CONCURRING IN TROP
THE CONCLUSION THAT EXPATRIATION UNDER SEC. 401(G) WAS PUNISHMENT WAS
"BUT THE BEGINNING OF CRITICAL INQUIRY," 356 U.S., AT 110, A SIMILAR
CONCLUSION WITH REFERENCE TO SECS. 401(J) AND 349(A)(10) IS SUFFICIENT
TO SUSTAIN THE HOLDING THAT THEY ARE UNCONSTITUTIONAL. 

                           2.  THE PRESENT STATUTES. 

THE IMMEDIATE LEGISLATIVE HISTORY OF SEC. 401(J) CONFIRMS THE
CONCLUSION, BASED UPON STUDY OF THE EARLIER LEGISLATIVE AND JUDICIAL
HISTORY, (FN35) THAT IT IS PUNITIVE IN NATURE.  THE LANGUAGE OF THE
PREDECESSOR, AN UNDERSTANDABLE FACT SINCE THE DRAFT OF THE BILL WAS
SUBMITTED TO THE CONGRESS BY ATTORNEY GENERAL BIDDLE ALONG WITH A
LETTER TO CHAIRMAN RUSSELL OF THE SENATE IMMIGRATION COMMITTEE, IN
WHICH THE ATTORNEY GENERAL REFERRED FOR PRECEDENT TO THE 1912
REENACTMENT OF THE 1865 STATUTE.  THIS LETTER, WHICH WAS THE IMPETUS
FOR THE ENACTMENT OF THE BILL, WAS QUOTED IN FULL TEXT IN SUPPORT OF IT
IN BOTH THE HOUSE AND SENATE COMMITTEE REPORTS, H.R. REP. NO. 1229,
78TH CONG., 2D SESS. 2-3 (1944); S. REP. NO. 1075 , 78TH CONG., 2D
SESS. 2 (1944), AND IS SET OUT IN THE MARGIN.  (FN36) THE SENATE REPORT
STATED THAT IT "FULLY EXPLAINS THE PURPOSE OF THE BILL."  S. REP. NO.
1075, SUPRA, AT 1.  THE LETTER WAS COUCHED ENTIRELY IN TERMS OF AN
ARGUMENT THAT CITIZENS WHO HAD LEFT THE COUNTRY IN ORDER TO ESCAPE
MILITARY SERVICE SHOULD BE DEALT WITH, AND THAT LOSS OF CITIZENSHIP WAS
A PROPER WAY TO DEAL WITH THEM.  THERE WAS NO REFERENCE TO THE SOCIETAL
GOOD THAT WOULD BE WROUGHT BY THE LEGISLATION, NOR TO ANY IMPROVEMENT
IN SOLDIER MORALE OR IN THE CONDUCT OF WAR GENERALLY THAT WOULD BE
GAINED BY THE PASSAGE OF THE STATUTE.  THE HOUSE COMMITTEE REPORT AND
THE SPONSORS OF THE BILL ENDORSED IT ON THE SAME BASIS.  THE REPORT
REFERRED FOR SUPPORT TO THE FACT THAT THE FBI FILES SHOWED "OVER 800
DRAFT DELINQUENTS" IN THE EL PASO AREA ALONE WHO HAD CROSSED TO MEXICO
TO EVADE THE DRAFT.  H.R. REP. NO. 1229, SUPRA, AT 2.  THE OBVIOUS
INFERENCE TO BE DRAWN FROM THE REPORT, THE EXAMPLE IT CONTAINED, AND
THE LACK OF MENTION OF ANY BROADER PURPOSE IS THAT CONGRESS WAS
CONCERNED SOLELY WITH INFLICTING EFFECTIVE RETRIBUTION UPON THIS CLASS
OF DRAFT EVADERS AND, NO DOUBT, ON OTHERS SIMILARLY SITUATED.  THUS, ON
THE FLOOR OF THE HOUSE, REPRESENTATIVE DICKSTEIN OF NEW YORK, THE
CHAIRMAN OF THE HOUSE COMMITTEE ON IMMIGRATION AND NATURALIZATION,
EXPLAINED THE BILL SOLELY AS A MEANS OF DEALING WITH "DRAFT DODGERS WHO
LEFT THIS COUNTRY KNOWING THAT THERE WAS A POSSIBILITY THAT THEY MIGHT
BE DRAFTED IN THIS WAR AND THAT THEY MIGHT HAVE TO SERVE IN THE ARMED
FORCES  ...  ."  HE IMPLIED THAT THE BILL WAS NECESSARY TO FRUSTRATE
THEIR "IDEA OF EVADING MILITARY SERVICE AND OF RETURNING AFTER THE WAR
IS OVER, AND TAKING THEIR OLD PLACES IN OUR SOCIETY."  90 CONG. REC.
3261 (1944).  SENATOR RUSSELL, WHO WAS MANAGER OF THE BILL AS WELL AS
CHAIRMAN OF THE SENATE IMMIGRATION COMMITTEE, EXPLAINED IT IN SIMILAR
TERMS: 

"CERTAINLY THOSE WHO, HAVING ENJOYED THE ADVANTAGES OF LIVING IN THE
UNITED STATES, WERE UNWILLING TO SERVE THEIR COUNTRY OR SUBJECT
THEMSELVES TO THE SELECTIVE SERVICE ACT, SHOULD BE PENALIZED IN SOME
MEASURE  ...  .  ANY AMERICAN CITIZEN WHO IS CONVICTED OF VIOLATING THE
SELECTIVE SERVICE ACT LOSES HIS CITIZENSHIP.  THIS BILL WOULD MERELY
IMPOSE A SIMILAR PENALTY ON THOSE WHO ARE NOT SUBJECT TO THE
JURISDICTION OF OUR COURTS, THE PENALTY BEING THE SAME AS WOULD RESULT
IN THE CASE OF THOSE WHO ARE SUBJECT TO THE JURISDICTION OF OUR
COURTS."  90 CONG. REC. 7629 (1944).  (FN37) 

THE SENATE AND HOUSE DEBATES, TOGETHER WITH ATTORNEY GENERAL BIDDLE'S
LETTER, BROUGHT TO LIGHT NO ALTERNATIVE PURPOSE TO DIFFERENTIATE THE
NEW STATUTE FROM ITS PREDECESSOR.  INDEED, AS INDICATED, THE ATTORNEY
GENERAL'S LETTER SPECIFICALLY RELIED ON THE PREDECESSOR STATUTE AS
PRECEDENT FOR THIS ENACTMENT, AND BOTH THE LETTER AND THE DEBATES,
CONSISTENT WITH THE CHARACTER OF THE PREDECESSOR STATUTE, REFERRED TO
REASONS FOR THE ENACTMENT OF THE BILL WHICH WERE FUNDAMENTALLY
RETRIBUTIVE IN NATURE.  WHEN ALL OF THESE CONSIDERATIONS ARE WEIGHED,
AS THEY MUST BE, IN THE CONTEXT OF THE INCONTESTIBLY PUNITIVE NATURE OF
THE PREDECESSOR STATUTE, THE CONCLUSION THAT SEC. 401(J) WAS ITSELF
DOMINANTLY PUNITIVE BECOMES INESCAPABLE.  THE LEGISLATIVE HISTORY OF
SEC. 349(A)(10) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, WHICH
RE-ENACTED SEC. 401(J), ADDS NOTHING TO DISTURB THAT RESULT.  (FN38)
OUR CONCLUSION FROM THE LEGISLATIVE AND JUDICIAL HISTORY IS, THEREFORE,
THAT CONGRESS IN THESE SECTIONS DECREED AN ADDITIONAL PUNISHMENT FOR
THE CRIME OF DRAFT AVOIDANCE IN THE SPECIAL CATEGORY OF CASES WHEREIN
THE EVADER LEAVES THE COUNTRY.  IT CANNOT DO THIS WITHOUT PROVIDING THE
SAFEGUARDS WHICH MUST ATTEND A CRIMINAL PROSECUTION.  (FN39)

                       V. CONCLUSION. 

IT IS ARGUED THAT OUR HOLDING TODAY WILL HAVE THE UNFORTUNATE RESULT
OF IMMUNIZING THE DRAFT EVADER WHO HAS LEFT THE UNITED STATES FROM
HAVING TO SUFFER ANY SANCTION AGAINST HIS CONDUCT, SINCE HE MUST RETURN
TO THIS COUNTRY BEFORE HE CAN BE APPREHENDED AND TRIED FOR HIS CRIME. 
THE COMPELLING ANSWER TO THIS IS THAT THE BILL OF RIGHTS WHICH WE GUARD
SO JEALOUSLY AND THE PROCEDURES IT GUARANTEES ARE NOT TO BE ABROGATED
MERELY BECAUSE A GUILTY MAN MAY ESCAPE PROSECUTION OR FOR ANY OTHER
EXPEDIENT REASON.  MOREOVER, THE TRUTH IS THAT EVEN WITHOUT BEING
EXPATRIATED, THE EVADER LIVING ABROAD IS NOT IN A POSITION TO ASSERT
THE VAST MAJORITY OF HIS COMPONENT RIGHTS AS AN AMERICAN CITIZEN.  IF
HE WISHES TO ASSERT THOSE RIGHTS IN ANY REAL SENSE HE MUST RETURN TO
THIS COUNTRY, AND BY DOING THAT HE WILL SUBJECT HIMSELF TO
PROSECUTION.  IN FACT, WHILE HE IS OUTSIDE THE COUNTRY EVADING
PROSECUTION, THE UNITED STATES MAY, BY PROPER REFUSAL TO EXERCISE ITS
LARGELY DISCRETIONARY POWER TO AFFORD HIM DIPLOMATIC PROTECTION, (FN40)
DECLINE TO INVOKE ITS SOVEREIGN POWER ON HIS BEHALF.  SINCE THE
SUBSTANTIAL BENEFITS OF AMERICAN CITIZENSHIP ONLY COME INTO PLAY UPON
RETURN TO FACE PROSECUTION, THE DRAFT EVADER WHO WISHES TO EXERCISE HIS
CITIZENSHIP RIGHTS WILL INEVITABLY COME HOME AND PAY HIS DEBT, WHICH
WITHIN CONSTITUTIONAL LIMITS CONGRESS HAS THE POWER TO DEFINE.  THIS IS
WHAT MENDOZA-MARTINEZ DID, WHAT CORT SAYS HE IS WILLING TO DO, AND WHAT
OTHERS HAVE DONE.  (FN41)  THUS OUR HOLDING TODAY DOES NOT FRUSTRATE
THE EFFECTIVE HANDLING OF THE PROBLEM OF DRAFT EVADERS WHO LEAVE THE
UNITED STATES.  (FN42) 

WE CONCLUDE, FOR THE REASONS STATED, THAT SECS. 401(J) AND 349(A)(10)
ARE PUNITIVE AND AS SUCH CANNOT CONSTITUTIONALLY STAND, LACKING AS THEY
DO THE PROCEDURAL SAFEGUARDS WHICH THE CONSTITUTION COMMANDS.  (FN43)
WE RECOGNIZE THAT DRAFT EVASION, PARTICULARLY IN TIME OF WAR, IS A
HEINOUS OFFENSE, AND SHOULD AND CAN BE PROPERLY PUNISHED.  DATING BACK
TO MAGNA CARTA, HOWEVER, IT HAS BEEN AN ABIDING PRINCIPLE GOVERNING THE
LIVES OF CIVILIZED MEN THAT "NO FREEMAN SHALL BE TAKEN OR IMPRISONED OR
DISSEISED OR OUTLAWED OR EXILED  ...  WITHOUT THE JUDGMENT OF HIS PEERS
OR BY THE LAW OF THE LAND  ...  ."  (FN44)  WHAT WE HOLD IS ONLY THAT,
IN KEEPING WITH THIS CHERISHED TRADITION, PUNISHMENT CANNOT BE IMPOSED
"WITHOUT DUE PROCESS OF LAW."  ANY LESSER HOLDING WOULD IGNORE THE
CONSTITUTIONAL MANDATE UPON WHICH OUR ESSENTIAL LIBERTIES DEPEND. 
THEREFORE THE JUDGMENTS OF THE DISTRICT COURTS IN THESE CASES ARE
AFFIRMED. 

FN1  IN QUESTION IN NO. 2, KENNEDY V. MENDOZA-MARTINEZ, IS SEC.
401(J) OF THE NATIONALITY ACT OF 1940, ADDED IN 1944, 58 STAT. 746,
WHICH READS IN FULL AS FOLLOWS: 

"A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR
NATURALIZATION, SHALL LOSE HIS NATIONALITY BY  ...  : 

"(J)  DEPARTING FROM OR REMAINING OUTSIDE OF THE JURISDICTION OF THE
UNITED STATES IN TIME OF WAR OR DURING A PERIOD DECLARED BY THE
PRESIDENT TO BE A PERIOD OF NATIONAL EMERGENCY FOR THE PURPOSE OF
EVADING OR AVOIDING TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF
THE UNITED STATES." 

ITS SUCCESSOR AND COUNTERPART, SEC. 349(A)(10) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 163, 267-268, 8 U.S.C. SEC.
1481(A)(10), IS CHALLENGED IN NO. 3, RUSK V. CORT, AND READS AS
FOLLOWS: 

"FROM AND AFTER THE EFFECTIVE DATE OF THIS ACT A PERSON WHO IS A
NATIONAL OF THE UNITED STATES WHETHER BY BIRTH OR NATURALIZATION, SHALL
LOSE HIS NATIONALITY BY  ...  : 

"(10)  DEPARTING FROM OR REMAINING OUTSIDE OF THE JURISDICTION OF THE
UNITED STATES IN TIME OF WAR OR DURING A PERIOD DECLARED BY THE
PRESIDENT TO BE A PERIOD OF NATIONAL EMERGENCY FOR THE PURPOSE OF
EVADING OR AVOIDING TRAINING AND SERVICE IN THE MILITARY, AIR, OR NAVAL
FORCES OF THE UNITED STATES.   FOR THE PURPOSES OF THIS PARAGRAPH
FAILURE TO COMPLY WITH ANY PROVISION OF ANY COMPULSORY SERVICE LAWS OF
THE UNITED STATES SHALL RAISE THE PRESUMPTION THAT THE DEPARTURE FROM
OR ABSENCE FROM THE UNITED STATES WAS FOR THE PURPOSE OF EVADING OR
AVOIDING TRAINING AND SERVICE IN THE MILITARY, AIR, OR NAVAL FORCES OF
THE UNITED STATES." 

FN2  54 STAT. 894, AS AMENDED, 50 U.S.C. APP. (1946 ED.)  SEC.  311. 

FN3  THE MEMORANDUM OPINION IN WHICH THE QUOTED STATEMENT APPEARS IS
UNREPORTED, BUT THE FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
OF THE COURT ARE REPORTED AT 192 F. SUPP. 1. 

FN4  64 STAT. 826, 50 U.S.C. APP. SEC. 454 ET SEQ. 

FN5  62 STAT. 622, 50 U.S.C. APP. SEC. 462(A).  THE SHORT TITLE OF
THE ACT HAS SINCE 1951 BEEN THE UNIVERSAL MILITARY TRAINING AND SERVICE
ACT.  65 STAT. 75, 50 U.S.C. APP.  SEC. 451(A). 

FN6  IN MORE DETAIL, 28 U.S.C. SEC. 2281 REQUIRES A THREE-JUDGE COURT
TO BE CONVENED IN ORDER TO GRANT "AN INTERLOCUTORY OR PERMANENT
INJUNCTION RESTRAINING THE ENFORCEMENT, OPERATION OR EXECUTION OF ANY
STATE STATUTE BY RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN
THE ENFORCEMENT OR EXECUTION OF SUCH STATUTE OR OF AN ORDER MADE BY AN
ADMINISTRATIVE BOARD OR COMMISSION ACTING UNDER STATE STATUTES  ...
UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH STATUTE  ...  ." 

FN7  THE INDICTMENT WAS IN THREE COUNTS, BUT MENDOZA-MARTINEZ WAS
CONVICTED ONLY ON COUNT I, WHICH READS IN FULL AS FOLLOWS: 

"DEFENDANT FRANK MARTINEZ MENDOZA, A MALE PERSON WITHIN THE CLASS
MADE SUBJECT TO SELECTIVE SERVICE UNDER THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940, AS AMENDED, REGISTERED AS REQUIRED BY SAID ACT AND
THE REGULATIONS PROMULGATED THEREUNDER AND BECAME A REGISTRANT OF LOCAL
BOARD NO. 137, SAID BOARD BEING THEN AND THERE DULY CREATED AND ACTING,
UNDER THE SELECTIVE SERVICE SYSTEM ESTABLISHED BY SAID ACT, IN KERN
COUNTY, CALIFORNIA, IN THE NORTHERN DIVISION OF THE SOUTHERN DISTRICT
OF CALIFORNIA; AND ON OR ABOUT NOVEMBER 15, 1942, IN VIOLATION OF THE
PROVISIONS OF SAID ACT AND THE REGULATIONS PROMULGATED THEREUNDER, THE
DEFENDANT DID KNOWINGLY EVADE SERVICE IN THE LAND OR NAVAL FORCES OF
THE UNITED STATES OF AMERICA IN THAT HE DID KNOWINGLY DEPART FROM THE
UNITED STATES AND GO TO A FOREIGN COUNTRY, NAMELY:  MEXICO, FOR THE
PURPOSE OF EVADING SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED
STATES AND DID THERE REMAIN UNTIL ON OR ABOUT NOVEMBER 1, 1946." 

THE JUDGMENT AND COMMITMENT, SIMILARLY, STATED THAT MENDOZA-MARTINEZ
WAS CONVICTED OF: 

"HAVING ON OR ABOUT NOVEMBER 15TH, 1942, KNOWINGLY DEPARTED FROM THE
UNITED STATES TO MEXICO, FOR THE PURPOSE OF EVADING SERVICE IN THE LAND
OR NAVAL FORCES OF THE UNITED STATES AND HAVING REMAINED THERE UNTIL ON
OR ABOUT NOVEMBER 1ST 1946." 

FN8  COMPARE UNITED STATES V. INTERNATIONAL BUILDING CO., 345 U.S.
502, IN WHICH A PRIOR JUDICIAL DETERMINATION OF A TAX ISSUE, BASED ON
THE PARTIES' STIPULATION, WAS REFUSED COLLATERAL-ESTOPPEL EFFECT IN A
LATER ACTION.  SEE ALSO RESTATEMENT, JUDGMENTS, SEC. 68, COMMENTS G, H,
I. 

FN9  SINCE THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 APPLIED
BOTH TO CITIZENS AND RESIDENT ALIENS, THERE WAS NO NEED TO DETERMINE IN
WHICH CATEGORY MENDOZA-MARTINEZ FELL "ON OR ABOUT NOVEMBER 15, 1942." 
IN THE PRESENT PROCEEDING IT IS, OF COURSE, NOT DISPUTED THAT MENDOZA
MARTINEZ WAS AN AMERICAN CITIZEN ON THAT DATE. 

FN10  U.S. CONST., AMEND. XIV, SEC. 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  ...  ."  THIS CONSTITUTIONAL STATEMENT IS TO BE
INTERPRETED IN LIGHT OF PRE-EXISTING COMMON-LAW PRINCIPLES GOVERNING
CITIZENSHIP.  UNITED STATES V. WONG KIM ARK, 169 U.S. 649. 

FN11  THERE IS, HOWEVER, NO DISAGREEMENT THAT CITIZENSHIP MAY BE
VOLUNTARILY RELINQUISHED OR ABANDONED EITHER EXPRESSLY OR BY CONDUCT. 
SEE, E.G., PEREZ V. BROWNELL, 356 U.S. 44, 48-49; ID., AT 66-67
(WARREN, C.J., DISSENTING). 

FN12  EX PARTE QUIRIN, 317 U.S. 1, 25-26.  SEE ALSO HOME BLDG. & LOAN
ASSN. V. BLAISDELL, 290 U.S. 398, 426; HIRABAYASHI V. UNITED STATES,
320 U.S. 81, 93. 

FN13  MACKENZIE V. HARE, 239 U.S. 299, 311-312; PEREZ V. BROWNELL,
SUPRA, 356 U.S., AT 57-58. 

FN14  SEE ALSO GARNER, UNIFORMITY OF LAW IN RESPECT TO NATIONALITY,
19 AM. J. INT'L L. 547 (1925). 

FN15  SEE SECKLER-HUDSON, STATELESSNESS:  WITH SPECIAL REFERENCE TO
THE UNITED STATES (1934), 244-253; PREUSS, INTERNATIONAL LAW AND
DEPRIVATION OF NATIONALITY, 23 GEO.  L.J. 250 (1934); HOLBORN, THE
LEGAL STATUS OF POLITICAL REFUGEES, 1920-1938, 32 AM. J. INT'L L. 680
(1938).  SEE ALSO SHAUGHNESSY V. UNITED STATES EX REL. MEZEI, 345 U.S.
206. 

FN16  THE DRASTIC CONSEQUENCES OF STATELESSNESS HAVE LED TO
REAFFIRMATION IN THE UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN
RIGHTS, ARTICLE 15, OF THE RIGHT OF EVERY INDIVIDUAL TO RETAIN A
NATIONALITY.  U.N. DOC. NO. A/810, PP. 71, 74 (1948)(ADOPTED BY THE
U.N.  GENERAL ASSEMBLY ON DEC. 10, 1948), REPRINTED IN UNESCO, HUMAN
RIGHTS, A SYMPOSIUM, APP. III (1949).  SEE ALSO A STUDY ON
STATELESSNESS, U.N. DOC. NO. E/1112 (1949); SECOND REPORT ON THE
ELIMINATION OR REDUCTION OF STATELESSNESS, U.N. DOC. NO. A/CN. 4/75
(1953); WEIS, THE UNITED NATIONS CONVENTION ON THE REDUCTION OF
STATELESSNESS, 1961, 11 INT'L & COMP. L. Q. 1073 (1962), AND
AUTHORITIES CITED THEREIN. 

THE EVILS OF STATELESSNESS WERE RECOGNIZED IN THE REPORT OF THE
PRESIDENT'S COMMISSION ON IMMIGRATION AND NATURALIZATION (1953), 241,
AND THE TREATISE WRITERS HAVE UNANIMOUSLY DISAPPROVED OF STATUTES WHICH
DENATIONALIZE INDIVIDUALS WITHOUT REGARD TO WHETHER THEY HAVE DUAL
NATIONALITY.  BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD
(1916), SECS. 262, 334; FENWICK, INTERNATIONAL LAW (3D ED. 1948), 263;
1 OPPENHEIM, SUPRA, SECS. 313-313A; GETTYS, THE LAW OF CITIZENSHIP IN
THE UNITED STATES (1934), 137-138, 160. 

FN17  WAR POWERS:  UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81,
88; EX PARTE ENDO, 323 U.S. 283, 298-300.  FOREIGN-AFFAIRS POWERS:
KENT V. DULLES, 357 U.S. 116, 125-130; SHACHTMAN V. DULLES, 96 U.S.
APP. D.C. 287, 225 F.2D 938 (1955). 

FN18  SEE ALSO HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146,
156; UNITED STATES V. COHEN GROCERY CO., SUPRA; EX PARTE ENDO, SUPRA. 

FN19  COMPARE EX PARTE MASON, 105 U.S. 696; KAHN V. ANDERSON, 255
U.S. 1, 8-9; EX PARTE QUIRIN, 317 U.S. 1, 29, 38-46. 

FN20  "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."  U.S. CONST., AMEND. V.    "IN
ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE
BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE."  U.S.
CONST., AMEND. VI. 

FN21  THUS THE FACT THAT MENDOZA-MARTINEZ WAS, AS IT HAPPENED,
CONVICTED OF DRAFT EVASION BEFORE DEPORTATION PROCEEDINGS WERE BROUGHT
AGAINST HIM IS OF NO RELEVANCE.  EVEN IF THE INCIDENCE OF CONVICTION
FOR DRAFT EVASION WERE POTENTIALLY RELEVANT TO THE VALIDITY OF SECS.
401(J) AND 349(A)(10), THE FACT IS THAT THE "CRIME" CREATED BY THESE
OF SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 -
"DEPARTING FROM OR REMAINING OUTSIDE" THE COUNTRY "FOR THE PURPOSE OF
EVADING OR AVOIDING (MILITARY) TRAINING AND SERVICE  ...  ."  SEE
COMMENT, POWER OF CONGRESS TO EFFECT INVOLUNTARY EXPATRIATION, 56 MICH.
L. REV.  1142, 1166 N. 102 (1958).  MENDOZA-MARTINEZ WAS THUS NEVER
TRIED FOR ANY CRIME THE ELEMENTS OF WHICH ARE IDENTICAL WITH OR TOTALLY
INCLUSORY OF THOSE OF SEC. 401(J), AND HENCE WAS NOT EVEN ARGUABLY
ACCORDED THE PROCEDURAL PROTECTIONS WE HERE HOLD ESSENTIAL. 

FN22  EX PARTE GARLAND, 4 WALL.  333, 377; UNITED STATES V. LOVETT,
328 U.S. 303, 316; FLEMMING V. NESTOR, 363 U.S. 603, 617. 

FN23  CUMMINGS V. MISSOURI, 4 WALL.  277, 320-321; EX PARTE WILSON,
114 U.S. 417, 426-429; MACKIN V. UNITED STATES, 117 U.S. 348, 350-352;
WONG WING V. UNITED STATES, 163 U.S. 228, 237-238.  REFERENCE TO
HISTORY HERE IS PECULIARLY APPROPRIATE.  THOUGH NOT DETERMINATIVE, IT
SUPPORTS OUR HOLDING TO NOTE THAT FORFEITURE OF CITIZENSHIP AND RELATED
DEVICES OF BANISHMENT AND EXILE HAVE THROUGHOUT HISTORY BEEN USED AS
PUNISHMENT.  IN ANCIENT ROME, "THERE WERE MANY WAYS IN WHICH A MAN
MIGHT LOSE HIS FREEDOM, AND WITH HIS FREEDOM HE NECESSARILY LOST HIS
CITIZENSHIP ALSO.  THUS HE MIGHT BE SOLD INTO SLAVERY AS AN INSOLVENT
DEBTOR, OR CONDEMNED TO THE MINES FOR HIS CRIMES AS SERVUS POENAE." 
SALMOND, CITIZENSHIP AND ALLEGIANCE, 17 L.Q. REV. 270, 276 (1901). 
BANISHMENT WAS A WEAPON IN THE ENGLISH LEGAL ARSENAL FOR CENTURIES, 4
BL. COMM. *377, BUT IT WAS ALWAYS "ADJUDGED A HARSH PUNISHMENT EVEN BY
MEN WHO WERE ACCUSTOMED TO BRUTALITY IN THE ADMINISTRATION OF CRIMINAL
JUSTICE."  MAXEY, LOSS OF NATIONALITY:  INDIVIDUAL CHOICE OR GOVERNMENT
FIAT?  26 ALBANY L. REV. 151, 164 (1962). 

FN24  HELWIG V. UNITED STATES, 188 U.S. 605, 610-612; CHILD LABOR TAX
CASE, 259 U.S. 20, 37-38. 

FN25  UNITED STATES V. CONSTANTINE, 296 U.S. 287, 295; TROP V.
DULLES, SUPRA, 356 U.S., AT 96 (OPINION OF THE CHIEF JUSTICE); ID., AT
111-112 (BRENNAN, J., CONCURRING). 

FN26  LIPKE V. LEDERER, 259 U.S. 557, 562; UNITED STATES V. LA
FRANCA, 282 U.S. 568, 572-573; UNITED STATES V. CONSTANTINE, SUPRA, 296
U.S., AT 295. 

FN27  CUMMINGS V. MISSOURI, SUPRA, 4 WALL., AT 319; CHILD LABOR TAX
CASE, SUPRA, 259 U.S., AT 43; LIPKE V. LEDERER, SUPRA, 259 U.S., AT 561
562; UNITED STATES V. LA FRANCA, SUPRA, 282 U.S., AT 572; TROP V.
DULLES, SUPRA, 356 U.S., AT 96-97; FLEMMING V. NESTOR, SUPRA, 363 U.S.,
AT 615, 617. 

FN28  CUMMINGS V. MISSOURI, SUPRA, 4 WALL., AT 318; HELWIG V. UNITED
STATES, SUPRA, 188 U.S., AT 613; UNITED STATES V. CONSTANTINE, SUPRA,
296 U.S., AT 295; REX TRAILER CO. V. UNITED STATES, 350 U.S. 148, 154. 
BUT CF. CHILD LABOR TAX CASE, SUPRA, 259 U.S., AT 41; FLEMMING V.
NESTOR, SUPRA, AT 614, 616 AND N. 9. 

FN29  COMPARE CUMMINGS V. MISSOURI, 4 WALL.  277, 320, 322; UNITED
STATES V. LOVETT, 328 U.S. 303, 308-312; WORMUTH, LEGISLATIVE
DISQUALIFICATIONS AS BILLS OF ATTAINDER, 4 VAND.  L. REV. 603, 608
(1951); NOTE, PUNISHMENT:  ITS MEANING IN RELATION TO SEPARATION OF
POWER AND SUBSTANTIVE CONSTITUTIONAL RESTRICTIONS AND ITS USE IN THE
LOVETT, TROP, PEREZ, AND SPEISER CASES, 34 IND. L.J. 231, 249-253
(1959); COMMENT, THE COMMUNIST CONTROL ACT OF 1954, 64 YALE L.J. 712,
723 (1955). 

FN30  MACKENZIE V. HARE, 239 U.S. 299, AND SAVORGNAN V. UNITED
STATES, 338 U.S. 491, WHATEVER THE PROPOSITION FOR WHICH THEY STAND IN
CONNECTION WITH THE POWER OF CONGRESS TO IMPOSE LOSS OF CITIZENSHIP,
COMPARE PEREZ V. BROWNELL, SUPRA, 356 U.S., AT 51-52, 61-62 (OPINION OF
THE COURT), WITH ID., AT 68-73 (DISSENTING OPINION OF THE CHIEF
JUSTICE) AND ID., AT 80 (DISSENTING OPINION OF JUSTICE DOUGLAS), ARE
BOTH PLAINLY DISTINGUISHABLE, AS IN PEREZ.  THE STATUTES IN QUESTION IN
EACH OF THOSE CASES PROVIDED LOSS OF CITIZENSHIP FOR NONCRIMINAL
BEHAVIOR INSTEAD OF AS AN ADDITIONAL SANCTION ATTACHING TO BEHAVIOR
ALREADY A CRIME, AND CONGRESSIONAL EXPRESSION ATTENDING THEIR PASSAGE
LACKED THE OVERWHELMING INDICATIONS OF PUNITIVE PURPOSE WHICH
CHARACTERIZED THE ENACTMENTS HERE.  THUS, BASING DECISION AS WE DO ON
THE UNMISTAKABLE PENAL INTENT UNDERLYING THE STATUTES PRESENTLY AT
ISSUE, NOTHING IN OUR HOLDING IS INCONSISTENT WITH THESE OTHER CASES,
AND THERE IS NO OCCASION FOR US TO PASS UPON ANY QUESTION OF THE POWER
OF CONGRESS TO ACT AS IT DID IN THE STATUTES INVOLVED IN THOSE CASES. 
SEE NOTE 43, INFRA. 

FN31  THE ACTS OF MENDOZA-MARTINEZ AND CORT WOULD HAVE BEEN COVERED
BY THIS STATUTE AS WELL AS BY SECS. 401(J) AND 349(A)(10). 

FN32  SEE P. 176, INFRA. 

FN33  THE PRESIDENT'S VETO MESSAGE TO THE SENATE, S. DOC. NO. 708,
60TH CONG., 2D SESS. (1909), INDICATES THAT HIS REFUSAL TO APPROVE THE
MEASURE WAS PREMISED PARTLY ON THE FACT THAT IT PLACED THE DISCRETION
TO REMIT LOSS OF CITIZENSHIP RIGHTS IN THE SECRETARY OF THE NAVY AND
PARTLY ON THE PRESIDENT'S FEELING THAT IT "WOULD ACTUALLY ENCOURAGE
HARDENED OFFENDERS TO COMMIT A HEINOUS CRIME AGAINST THE FLAG AND THE
NATION."  ID., AT 2.  THE FORMER WAS A FAULT OF THE PARTICULAR FORM OF
THE MEASURE:  THE PRESIDENT WAS WORRIED THAT POWER TO PARDON COULD NOT
CONSTITUTIONALLY BE VESTED IN ANYONE OTHER THAN HIMSELF, AND HE WAS
FURTHER DISTURBED THAT PLACING THE POWER IN THE SECRETARY OF THE NAVY
WOULD RESULT IN DISCRIMINATION AGAINST ARMY PEOPLE.  THE PRESIDENT'S
SECOND REASON, HOWEVER, INDICATES THAT TO HIM RETENTION OF THE LAW AS
IT STOOD WOULD SERVE A PURPOSE ALWAYS SOUGHT TO BE FURTHERED BY THE
IMPOSITION OF PUNISHMENT FOR CRIME - DETERRENCE.  THIS IS BORNE OUT BY
THE STATEMENTS OF THE PRESIDENT'S ADVISERS IN RECOMMENDING THAT HE VETO
IT.  THE SECRETARY OF WAR SAID, "LOSS OF CITIZENSHIP IS A SUBSTANTIAL
PART OF THE PUNISHMENT, AND DOUBTLESS HAS A VERY CONSIDERABLE EFFECT IN
DETERRING DESERTIONS."  ID., AT 3.  THE SECRETARY OF THE NAVY STATED
THAT "IT IS BELIEVED THAT THE PRESENT LAW REGARDING THE LOSS OF
CITIZENSHIP AS A PENALTY FOR DESERTERS FROM THE NAVY ACTS AS A
DETERRENT TO MANY."  IBID.  THE ATTORNEY GENERAL INDICATED HIS
AGREEMENT WITH THE SECRETARY OF THE NAVY.  ID., AT 5. 

FN34  THE ADVISERS' CITATION OF HUBER V. REILY, SUPRA, AND KURTZ V.
MOFFITT, SUPRA, IN SUPPORT OF THE QUOTED STATEMENT SUGGESTS THEIR
AWARENESS THAT AN UNDERLYING CONVICTION IS CONSTITUTIONALLY MANDATED. 

FN35  THE RELEVANCE OF SUCH HISTORY IN ANALYZING THE CHARACTER OF A
PRESENT ENACTMENT IS ILLUSTRATED BY THE COURT'S APPROACH IN HELWIG V.
UNITED STATES, 188 U.S. 605, 613-619, WHEREIN AT CONSIDERABLE LENGTH IT
REVIEWED AND RELIED UPON THE CHARACTER OF PREVIOUS RELEVANT LEGISLATION
IN DETERMINING WHETHER THE STATUTE BEFORE IT, WHICH IMPOSED AN EXACTION
UPON IMPORTERS WHO UNDERVALUED IMPORTED GOODS FOR DUTY PURPOSES, WAS A
PENALTY. 

FN36  "MY DEAR SENATOR:  I INVITE YOUR ATTENTION TO THE DESIRABILITY
OF ENACTING LEGISLATION WHICH WOULD PROVIDE (1) FOR THE EXPATRIATION OF
CITIZENS OF THE UNITED STATES WHO IN TIME OF WAR OR DURING A NATIONAL
EMERGENCY LEAVE THE UNITED STATES OR REMAIN OUTSIDE THEREOF FOR THE
PURPOSE OF EVADING SERVICE IN THE ARMED FORCES OF THE UNITED STATES,
AND (2) FOR THE EXCLUSION FROM THE UNITED STATES OF ALIENS WHO LEAVE
THIS COUNTRY FOR THE ABOVE MENTIONED PURPOSE. 

"UNDER EXISTING LAW A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH
OR BY NATURALIZATION, BECOMES EXPATRIATED BY OPERATION OF LAW IF HE (1)
OBTAINS NATURALIZATION IN A FOREIGN STATE; (2) TAKES AN OATH OF
ALLEGIANCE TO A FOREIGN COUNTRY; (3) SERVES IN THE ARMED FORCES OF A
FOREIGN STATE IF HE THEREBY ACQUIRES THE NATIONALITY OF SUCH FOREIGN
STATE; (4) ACCEPTS EMPLOYMENT UNDER A FOREIGN STATE FOR WHICH ONLY
NATIONALS OF SUCH STATE ARE ELIGIBLE; (5) VOTES IN A POLITICAL ELECTION
IN A FOREIGN STATE OR PARTICIPATES IN AN ELECTION OR PLEBISCITE TO
DETERMINE THE SOVEREIGNTY OVER FOREIGN TERRITORY; (6) MAKES A FORMAL
RENUNCIATION OF NATIONALITY BEFORE A DIPLOMATIC OR CONSULAR OFFICER OF
THE UNITED STATES IN A FOREIGN STATE; (7) DESERTS FROM THE ARMED FORCES
OF THE UNITED STATES IN TIME OF WAR AND IS CONVICTED THEREOF BY A COURT
MARTIAL; OR (8) IS CONVICTED OF TREASON (U.S.C., TITLE 8, SEC. 801). 
MACHINERY IS PROVIDED WHEREBY A PERSON WHO IS DENIED ANY RIGHT OR
PRIVILEGE OF CITIZENSHIP ON THE GROUND THAT HE HAS BECOME EXPATRIATED
MAY SECURE A JUDICIAL DETERMINATION OF HIS STATUS; AND IF HE IS OUTSIDE
OF THE UNITED STATES HE IS ENTITLED TO A CERTIFICATE OF IDENTITY WHICH
PERMITS HIM TO ENTER AND REMAIN IN THE UNITED STATES UNTIL HIS STATUS
HAS BEEN DETERMINED BY THE COURTS (NATIONALITY ACT OF 1940, SEC. 503;
U.S.C., TITLE 8, SEC. 903). 

"THE FILES OF THIS DEPARTMENT DISCLOSE THAT AT THE PRESENT TIME THERE
ARE MANY CITIZENS OF THE UNITED STATES WHO HAVE LEFT THIS COUNTRY FOR
THE PURPOSE OF ESCAPING SERVICE IN THE ARMED FORCES.  WHILE SUCH
PERSONS ARE LIABLE TO PROSECUTION FOR VIOLATION OF THE SELECTIVE
SERVICE AND TRAINING ACT OF 1940, IF AND WHEN THEY RETURN TO THIS
COUNTRY, IT WOULD SEEM PROPER THAT IN ADDITION THEY SHOULD LOSE THEIR
UNITED STATES CITIZENSHIP.  PERSONS WHO ARE UNWILLING TO PERFORM THEIR
DUTY TO THEIR COUNTRY AND ABANDON IT DURING ITS TIME OF NEED ARE MUCH
LESS WORTHY OF CITIZENSHIP THAN ARE PERSONS WHO BECOME EXPATRIATED ON
ANY OF THE EXISTING GROUNDS. 

"ACCORDINGLY, I RECOMMEND THE ENACTMENT OF LEGISLATION WHICH WOULD
PROVIDE (1) FOR THE EXPATRIATION OF CITIZENS OF THE UNITED STATES WHO
IN TIME OF WAR OR DURING A NATIONAL EMERGENCY LEAVE THE UNITED STATES
OR REMAIN OUTSIDE THEREOF FOR THE PURPOSE OF EVADING SERVICE IN THE
ARMED FORCES OF THE UNITED STATES, AND (2) FOR THE EXCLUSION FROM THE
UNITED STATES OF ALIENS WHO LEAVE THIS COUNTRY FOR THAT PURPOSE.  ANY
PERSON WHO MAY BE DEEMED TO HAVE BECOME EXPATRIATED BY OPERATION OF THE
FOREGOING PROVISION, WOULD BE ENTITLED TO HAVE HIS STATUS DETERMINED BY
THE COURTS PURSUANT TO THE ABOVE-MENTIONED SECTION OF THE NATIONALITY
ACT OF 1940. 

"ADEQUATE PRECEDENT EXISTS FOR THE SUGGESTED LEGISLATION IN THAT
DURING THE FIRST WORLD WAR A STATUTE WAS IN FORCE WHICH PROVIDED FOR
THE EXPATRIATION OF ANY PERSON WHO WENT BEYOND THE LIMITS OF THE UNITED
STATES WITH INTENT TO AVOID ANY DRAFT INTO THE MILITARY OR NAVAL
SERVICE (37 STAT. 356).  THIS PROVISION WAS REPEALED BY SECTION 504 OF
THE NATIONALITY CODE OF 1940 (54 STAT. 1172; U.S.C., TITLE 8, SEC.
904). 

"A DRAFT OF A PROPOSED BILL TO EFFECTUATE THE FOREGOING PURPOSE IS
ENCLOSED HEREWITH. 

"I HAVE BEEN INFORMED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET
THAT THE PROPOSED LEGISLATION IS IN ACCORD WITH THE PROGRAM OF THE
PRESIDENT. 

                    "SINCERELY YOURS:

             "ATTORNEY GENERAL." 

FN37  THE SENATOR'S STATEMENT THAT "ANY AMERICAN CITIZEN WHO IS
CONVICTED OF VIOLATING THE SELECTIVE SERVICE ACT LOSES HIS CITIZENSHIP"
WAS APPARENTLY A REFERENCE TO SEC.  401(G), AND SHOULD ACCORDINGLY BE
READ IN THAT LIMITED FASHION. 

FN38  SECTION 349(A)(10) DID AMEND SEC. 401(J) BY ADDING A
PRESUMPTION THAT FAILURE TO COMPLY WITH ANY PROVISION OF THE COMPULSORY
SERVICE LAWS OF THE UNITED STATES MEANS THAT THE DEPARTURE FROM OR
ABSENCE FROM THE UNITED STATES IS FOR THE PURPOSE OF AVOIDING MILITARY
SERVICE.  SEE NOTE 1, SUPRA. OUR HOLDING TODAY OBVIATES ANY NECESSITY
FOR PASSING UPON THIS PROVISION. 

FN39  LIPKE V. LEDERER, 259 U.S. 557; UNITED STATES V. LA FRANCA, 282
U.S. 568.  SEE EX PARTE WILSON, 114 U.S. 417; MACKIN V. UNITED STATES,
117 U.S. 348; WONG WING V. UNITED STATES, 163 U.S. 228.  COMPARE WIEMAN
V. UPDEGRAFF, 344 U.S. 183; SLOCHOWER V. BOARD OF HIGHER EDUCATION, 350
U.S. 551, 554, 556; SPEISER V. RANDALL, 357 U.S. 513. 

FN40  BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD (1916),
SECS. 143, 341; SEE AUTHORITIES CITED IN KLUBOCK, EXPATRIATION - ITS
ORIGIN AND MEANING, 38 NOTRE DAME LAW.  1, 11, N. 68 (1962).  SEE ALSO
BLACKMER V. UNITED STATES, 284 U.S. 421. 

FN41  THE ASTONISHING STORY OF GROVER CLEVELAND BERGDOLL IS ONE
EXAMPLE.  SEE, E.G., N.Y. TIMES, SEPT. 23, 1927, P. 8, COL. 3; MAY 3,
1935, P. 3, COL. 4; AUG. 16, 1935, P. 9, COL. 3; APR. 11, 1939, P. 6,
COL. 4; MAY 26, 1939, P. 1, COL. 7; MAY 30, 1939, P. 36, COL. 4; OCT.
6, 1939, P. 1, COL. 3; DEC. 5, 1939, P. 3, COL. 6; 39 OP. ATTY. GEN.
303 (1939).  ANOTHER EXAMPLE IS THE RECENT VOLUNTARY RETURN OF EDWARD
M. GILBERT TO FACE TRIAL ON CHARGES FOR WHICH HE COULD NOT BE
EXTRADITED.  N.Y. TIMES, OCT. 27, 1962, P. 1, COL. 1; OCT. 30, 1962, P.
1, COL. 2. 

FN42  MOREOVER, THE PROBLEM IS, RELATIVELY, EXTREMELY SMALL.  OVER
16,000,000 MEN SERVED IN OUR ARMED FORCES DURING WORLD WAR II, AND
NEARLY 6,000,000 MORE SERVED DURING THE KOREAN CRISIS.  THE WORLD
ALMANAC (1963), 735.  YET BETWEEN THE TIME OF THE ENACTMENT OF SEC.
401(J) AND JUNE 30, 1961, ONLY ABOUT 1,750 PERSONS WERE DENATIONALIZED
FOR LEAVING THE COUNTRY TO AVOID THE DRAFT.  COMPARE FIGURES CITED IN
KLUBOCK, SUPRA, AT 49, TAKEN FROM IMMIGRATION AND NATURALIZATION
SERVICE ANNUAL REPORTS, WITH FIGURES CITED IN COMMENT, THE EXPATRIATION
ACT OF 1954, 64 YALE L.J. 1164, 1165, N. 9 (1955), DERIVED PARTIALLY
FROM CORRESPONDENCE WITH THE GENERAL COUNSEL TO THE IMMIGRATION AND
NATURALIZATION SERVICE.    FN43  THE CONCLUSION THAT THE
DENATIONALIZATION SANCTION, AS USED IN SECS. 401(J) AND 349(A)(10), IS
A PUNISHMENT, OBVIATES ANY NEED TO DETERMINE WHETHER THESE SECTIONS ARE
OTHERWISE WITHIN THE POWERS OF CONGRESS.  THAT QUESTION WOULD HAVE HAD
TO BE FACED ONLY IF THE FOREGOING INQUIRY HAD DISCLOSED REASONS OTHER
THAN PUNITIVE FOR THE INFLICTION OF LOSS OF NATIONALITY IN THE PRESENT
CONTEXT, NECESSITATING DECISION WHETHER THE SECTIONS IN QUESTION WERE
WITHIN THE POWERS OF CONGRESS AS A REGULATORY SCHEME, OR IF THE
PUNITIVE FORFEITURE OF CITIZENSHIP HAD BEEN SURROUNDED WITH APPROPRIATE
SAFEGUARDS, OBLIGING DECISION WHETHER THE SECTIONS WERE WITHIN THE
POWERS OF CONGRESS TO APPLY AS A CRIMINAL SANCTION. 

FN44  14 ENCYCLOPAEDIA BRITANNICA (1957 ED.)  630. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BLACK, WHILE JOINING THE OPINION
OF THE COURT, ADHERE TO THE VIEWS EXPRESSED IN THE DISSENT OF MR.
JUSTICE DOUGLAS, IN WHICH MR. JUSTICE BLACK JOINED, IN PEREZ V.
BROWNELL, 356 U.S. 44, 79, THAT CONGRESS HAS NO POWER TO DEPRIVE A
PERSON OF THE CITIZENSHIP GRANTED THE NATIVE-BORN BY SEC. 1, CL. 1, OF
THE FOURTEENTH AMENDMENT. 

MR. JUSTICE BRENNAN, CONCURRING. 

I JOIN THE COURT'S OPINION BECAUSE I FULLY AGREE WITH THE COURT'S
CONCLUSION THAT CONGRESS HAS HERE ATTEMPTED TO EMPLOY EXPATRIATION AS A
PENAL SANCTION IN RESPECT OF BEHAVIOR DEEMED INIMICAL TO AN OBJECTIVE
WHOSE PURSUIT IS WITHIN ITS ASSIGNED POWERS, AND WITH THE REASONING BY
WHICH THAT CONCLUSION IS REACHED.  SO TOO, I AGREE THAT CONGRESS IS
CONSTITUTIONALLY DEBARRED FROM SO EMPLOYING THE DRASTIC, THE TRULY
TERRIFYING REMEDY OF EXPATRIATION, CERTAINLY WHERE NO ATTEMPT HAS BEEN
MADE TO APPLY THE FULL PANOPLY OF PROTECTIVE SAFEGUARDS WHICH THE
CONSTITUTION REQUIRES AS A CONDITION OF IMPOSING PENAL SANCTIONS. 
HOWEVER, I DEEM IT APPROPRIATE TO ELABORATE SOMEWHAT THE CONSIDERATIONS
WHICH IMPEL ME TO AGREE WITH THE COURT. 

THIS COURT HAS NEVER GRANTED THE EXISTENCE IN CONGRESS OF THE POWER
TO EXPATRIATE EXCEPT WHERE ITS EXERCISE WAS INTRINSICALLY AND
PECULIARLY APPROPRIATE TO THE SOLUTION OF SERIOUS PROBLEMS INEVITABLY
IMPLICATING NATIONALITY.  WE HAVE RECOGNIZED THE ENTANGLEMENTS WHICH
MAY STEM FROM DUAL ALLEGIANCE, AND HAVE TWICE SUSTAINED STATUTES WHICH
PROVIDED FOR LOSS OF AMERICAN CITIZENSHIP UPON THE DELIBERATE
ASSUMPTION OF A FOREIGN ATTACHMENT.  MACKENZIE V. HARE, 239 U.S. 299;
SAVORGNAN V. UNITED STATES, 338 U.S. 491.  WE HAVE RECOGNIZED THAT
PARTICIPATION BY AMERICAN NATIONALS IN THE INTERNAL POLITICS OF FOREIGN
STATES COULD DANGEROUSLY PREJUDICE OUR DIPLOMACY, AND HAVE ALLOWED THE
USE OF EXPATRIATION AS A UNIQUELY POTENT CORRECTIVE WHICH PRECLUDES
RECRIMINATIONS BY DISOWNING, AT THE MOMENT OF HIS PROVOCATIVE ACT, HIM
WHO MIGHT OTHERWISE BE TAKEN AS OUR SPOKESMAN OR OUR OPERATIVE.  PEREZ
V. BROWNELL, 356 U.S. 44.  THE INSTANT CASES DO NOT REQUIRE ME TO
RESOLVE SOME FELT DOUBTS OF THE CORRECTNESS OF PEREZ, WHICH I JOINED. 
FOR THE COURT HAS NEVER HELD THAT EXPATRIATION WAS TO BE FOUND IN
CONGRESS' ARSENAL OF COMMON SANCTIONS, AVAILABLE FOR NO HIGHER PURPOSE
THAN TO CURB UNDESIRABLE CONDUCT, TO EXACT RETRIBUTION FOR IT, AND TO
STIGMATIZE IT.

                                   I. 

IN TROP V. DULLES, 356 U.S. 86, WE HAD BEFORE US SEC. 401(G) OF THE
NATIONALITY ACT OF 1940, WHICH IMPOSED LOSS OF AMERICAN NATIONALITY
FOLLOWING CONVICTION OF DESERTING THE ARMED FORCES IN TIME OF WAR.  WE
HELD THAT STATUTE UNCONSTITUTIONAL.  THREE OF MY BRETHREN JOINED IN THE
OPINION OF THE CHIEF JUSTICE, WHO ANALYZED THE CASE IN TERMS EQUALLY
APPLICABLE TO THE CASES AT BAR.  THAT PLURALITY OPINION IN TROP NOTED
THAT THE CONGRESSIONAL POWER TO WHICH EXPATRIATION UNDER SEC. 401(G)
WAS SAID TO BE RELEVANT WAS THE "WAR POWER."  IT CONCLUDED THAT
EXPATRIATION UNDER SEC. 401(G) COULD HAVE NO VALUE IN FURTHERANCE OF
THE WAR POWER EXCEPT AS A SANCTION, TO DETER OR PUNISH DESERTION; THAT
EXPATRIATION SO EMPLOYED WAS "PUNISHMENT" WITHIN THE MEANING OF THE
EIGHTH AMENDMENT; AND THAT SUCH PUNISHMENT WAS UNCONSTITUTIONAL BECAUSE
CRUEL AND UNUSUAL.  (FN1) 

MY CONCURRING VIEWS IN TROP, SEPARATELY EXPRESSED, WERE AKIN TO THOSE
OF THE PLURALITY.  I SHARED THE VIEW THAT EXPATRIATION COULD HAVE BEEN
EMPLOYED IN SEC. 401(G) ONLY AS A SANCTION, AND I CONSIDERED THIS AN
INSUFFICIENT PREDICATE FOR ITS USE - WHICH I BELIEVED ALLOWABLE ONLY
WHERE SOME AFFIRMATIVE AND UNIQUE RELATIONSHIP TO POLICY WAS APPARENT. 
MY PREMISE WAS THE SIMPLE AND FUNDAMENTAL ONE THAT LEGISLATION SO
PROFOUNDLY DESTRUCTIVE OF INDIVIDUAL RIGHTS MUST KEEP WITHIN THE LIMITS
OF PALPABLE REASON AND REST UPON SOME MODICUM OF DISCOVERABLE
NECESSITY.  I WAS UNABLE TO CONCLUDE THAT SEC. 401(G) MET THAT
ELEMENTARY TEST.  IT WAS EVIDENT THAT RECOGNIZABLE ACHIEVEMENT OF
LEGITIMATE CONGRESSIONAL PURPOSES THROUGH THE EXPATRIATION DEVICE WAS
AT BEST REMOTE; AND THAT FAR MORE PROMISING ALTERNATIVE METHODS EXISTED
AND HAD, IN FACT, BEEN EMPLOYED. 

MY BROTHER STEWART ATTEMPTS TO DISTINGUISH TROP ALONG TWO FRONTS:  HE
ARGUES THAT EXPATRIATION IS NOT HERE EMPLOYED AS "PUNISHMENT" IN THE
CONSTITUTIONAL SENSE SO THAT THE REASONING OF THE TROP PLURALITY HAS NO
APPLICATION; AND HE ARGUES THAT, THE QUESTION OF PUNISHMENT ASIDE,
EXPATRIATION AS HERE EMPLOYED IS A UNIQUELY NECESSARY DEVICE NOT
FALLING WITHIN THE RATIONALE OF MY VIEWS SEPARATELY EXPRESSED IN TROP. 

MY BROTHER STEWART DISCERNS IN SEC. 401(J) (FN2) AN AFFIRMATIVE
INSTRUMENT OF POLICY AND NOT SIMPLY A SANCTION WHICH MUST BE CLASSED AS
"PUNISHMENT."  THE POLICY OBJECTIVE IS THOUGHT TO BE THE MAINTENANCE OF
TROOP MORALE; A THREAT TO THAT OBJECTIVE IS THOUGHT TO BE THE SPECTACLE
OF PERSONS ESCAPING A MILITARY-SERVICE OBLIGATION BY FLIGHT; AND
EXPATRIATION OF SUCH PERSONS IS SUSTAINED AS A DEMONSTRATIVE COUNTER TO
THAT THREAT.  TO MY MIND THAT WOULD BE "PUNISHMENT" IN THE PUREST
SENSE; IT WOULD BE NAKED VENGEANCE.  SUCH AN EXACTION OF RETRIBUTION
WOULD NOT LOSE THAT QUALITY BECAUSE IT WAS UNDERTAKEN TO MAINTAIN
MORALE.  INDEED, IT IS ONLY THE SIGNIFICANCE OF EXPATRIATION AS
RETRIBUTION WHICH COULD RENDER IT EFFECTIVE TO BOOST MORALE - THE
PURPOSE WHICH, TO THE DISSENT, REMOVES EXPATRIATION AS HERE USED FROM
THE REALM OF THE PUNITIVE.  I DO NOT PERCEIVE HOW EXPATRIATION SO
EMPLOYED WOULD DIFFER ANALYTICALLY FROM THE STOCKS OR THE RACK. 
BECAUSE SUCH DEVICES MAY BE CALCULATED TO SHORE UP THE CONVICTIONS OF
THE LAW-ABIDING BY DEMONSTRATING THAT THE WICKED WILL NOT GO UNSCATHED,
THEY WOULD NOT, BY THE DISSENT'S VIEW, BE PUNITIVE OR, PRESUMABLY,
REACHABLE BY THE EIGHTH AMENDMENT.  (FN3)  I CANNOT AGREE TO ANY SUCH
PROPOSITION, AND I SEE NO ESCAPE FROM THE CONCLUSION THAT SEC. 410(J),
BEFORE US TODAY, IS IDENTICAL IN PURPOSE TO SEC. 401(G) AND IS QUITE AS
"PUNITIVE" AS WAS THAT STATUTE, WHICH WE CONDEMNED IN TROP. 

THE DISSENT FINDS OTHER DISTINCTIONS BETWEEN THIS CASE AND TROP,
QUITE APART FROM ITS UNTENABLE POSITION THAT SEC. 401(J) IS NOT
PUNITIVE.  IT IS SAID THAT FLIGHT FROM THE COUNTRY TO ESCAPE THE DRAFT,
IN CONTRAST WITH DESERTION, COULD NEVER BE A MERE TECHNICAL OFFENSE
EQUIVOCAL IN ITS IMPLICATIONS FOR THE LOYALTY OF THE OFFENDER.  BUT THE
UNSHAKABLE FEAR OF PHYSICAL STRESS OR HARM, THE INTELLECTUAL OR MORAL
AVERSION TO COMBAT, AND THE MENTAL ABERRATION WHICH MAY RESULT IN
FLIGHT ARE NO MORE INCONSISTENT WITH UNDERLYING LOYALTY THAN WAS TROP'S
UNAUTHORIZED ABANDONMENT OF HIS POST.  (FN4)  AGAIN, IT IS SUGGESTED
THAT THE ELEMENT OF CUMULATION OF PUNISHMENTS WHICH HELPED EXPOSE THE
FUTILITY OF EXPATRIATION IN TROP IS MISSING HERE, BECAUSE SEC. 401(J),
UNLIKE SEC. 401(G), BECOMES OPERATIVE WITHOUT A PRIOR CONVICTION, AND
APPLIES ONLY IN THE CASE OF FLIGHT BEYOND OUR BORDERS.  BUT THE MENDOZA
MARTINEZ CASE, IN ITS COLLATERAL ESTOPPEL ISSUE, PROMINENTLY DISPLAYS
WHAT WOULD IN ANY CASE BE OBVIOUS - THAT EXPATRIATION UNDER SEC. 401(J)
IS CUMULATIVE WITH CRIMINAL SANCTIONS FOR DRAFT EVASION, FOR THOSE
SANCTIONS APPLY TO FUGITIVES EQUALLY AS MUCH AS TO SEDENTARY
VIOLATORS.  (FN5) 

NOR CAN TROP RATIONALLY BE DISTINGUISHED ON THE GROUND THAT THE
APPLICATION OF SEC.  401(J) ONLY TO FUGITIVES PROVES THAT IT WAS
DESIGNED TO FILL A VOID NECESSARILY LEFT BY THE ORDINARY CRIMINAL DRAFT
EVASION SANCTIONS.  THE POINT, AS I UNDERSTAND IT, IS THAT THE ORDINARY
SANCTIONS CANNOT BE BROUGHT TO BEAR AGAINST A FUGITIVE WHO DECLINES TO
COME HOME; BUT HE CAN BE EXPATRIATED WHILE HE REMAINS ABROAD, WITHOUT
HAVING TO BE BROUGHT BEFORE A TRIBUNAL AND FORMALLY PROCEEDED AGAINST. 
THE SPECIAL VIRTUE OF EXPATRIATION, IT APPEARS, IS THAT IT MAY BE
ACCOMPLISHED IN ABSENTIA. 

ASIDE FROM THE DENIAL OF PROCEDURAL DUE PROCESS, WHICH THE COURT
RIGHTLY FINDS IN THE SCHEME, THE SURFACE APPEAL OF THE ARGUMENT
VANISHES UPON CLOSER SCRUTINY. 

IT SIMPLY IS NOT TRUE THAT EXPATRIATION PROVIDES AN INSTRUMENTALITY
SPECIALLY NECESSARY FOR IMPOSING THE CONGRESSIONAL WILL UPON FUGITIVE
DRAFT EVADERS.  OUR STATUTES NOW PROVIDE SEVERE CRIMINAL SANCTIONS FOR
THE BEHAVIOR IN QUESTION.  THE FUGITIVE CAN RETURN ONLY AT THE COST OF
SUFFERING THESE PUNISHMENTS; THE ONLY WAY TO AVOID THEM IS TO REMAIN
AWAY.  AS TO ANY DRAFT DELINQUENT FOR WHOM THE PROSPECT OF THIS DILEMMA
WOULD NOT ITSELF POSE A RECOGNIZABLE, FORMIDABLE DETERRENT, I FAIL TO
SEE HOW THE ADDITION OF EXPATRIATION COULD ENHANCE THE EFFECT AT ALL. 
(FN6) NOR CAN EXPATRIATION AFFECT THE FUGITIVE WHO WILL NOT RETURN TO
BE PUNISHED - FOR WHOM IT IS THOUGHT TO BE SPECIALLY DESIGNED.  FOR
THAT INDIVIDUAL HAS, EX HYPOTHESI, DETERMINED ON HIS OWN TO STAY AWAY
AND SO CANNOT BE AFFECTED BY THE WITHDRAWAL OF HIS RIGHT TO RETURN. 
THE STING OF THE MEASURE IS FELT ONLY BY THOSE LIKE MENDOZA-MARTINEZ,
WHO HAVE ALREADY RETURNED AND BEEN PUNISHED, AND THOSE LIKE CORT, WHO
DESIRE TO RETURN AND BE PUNISHED - THOSE, IN OTHER WORDS, AS TO WHOM
EXPATRIATION IS PATENTLY CUMULATIVE WITH OTHER SANCTIONS.  AS TO THE
UNREGENERATE FUGITIVE WHOM IT IS PARTICULARLY THOUGHT TO REACH,
EXPATRIATION IS BUT A DISPLAY OF CONGRESSIONAL DISPLEASURE.  I CANNOT
AGREE THAT IT IS WITHIN THE POWER OF CONGRESS SO TO EXPRESS ITS
DISPLEASURE WITH THOSE WHO WILL NOT RETURN AS TO DESTROY THE RIGHTS AND
THE STATUS OF THOSE WHO HAVE DEMONSTRATED THEIR UNDERLYING ATTACHMENT
TO THIS COUNTRY BY COMING HOME. 

IT IS APPARENT, THEN, THAT TODAY'S CASES ARE GOVERNED BY TROP NO
MATTER WHICH OF THE TWO CONTROLLING OPINIONS IS CONSULTED. 
EXPATRIATION IS HERE EMPLOYED AS "PUNISHMENT," CRUEL AND UNUSUAL HERE
IF IT WAS THERE.  NOR HAS EXPATRIATION AS EMPLOYED IN THESE CASES ANY
MORE RATIONAL OR NECESSARY A CONNECTION WITH THE WAR POWER THAN IT HAD
IN TROP. 

          II. 

MR. JUSTICE STEWART'S DISSENT WOULD SUSTAIN SEC. 401(J) AS A
PERMISSIBLE EXERCISE OF THE "WAR POWER."  THE APPELLANTS IN THESE
CASES, ON THE OTHER HAND, PLACE THEIR MAIN RELIANCE ON THE "FOREIGN
AFFAIRS POWER."  THE DISSENT SUMMARIZES THE APPELLANTS' ARGUMENTS UNDER
THIS HEADING BUT DOES NOT PURPORT TO PASS ON THEM.  BECAUSE OF MY
CONVICTION THAT SEC. 401(J) IS UNCONSTITUTIONAL NO MATTER WHAT
CONGRESSIONAL POWER IS INVOKED IN ITS SUPPORT, I FIND IT NECESSARY TO
DEAL WITH THE FOREIGN AFFAIRS ARGUMENTS ADVANCED BY THE APPELLANTS. 

INITIALLY, I NOTE THAT THE LEGISLATIVE HISTORY AS EXPOUNDED BY THE
DISSENT FAILS TO REVEAL THAT CONGRESS WAS MINDFUL OF ANY FOREIGN
AFFAIRS PROBLEM TO BE CORRECTED BY THE STATUTE.  THE PRIMARY PURPOSE
SEEMS TO ME TO HAVE BEEN RETRIBUTIVE, THE SECONDARY PURPOSE DETERRENT;
AND EVEN THE MORALE-BOOSTING PURPOSE DISCERNED BY THE DISSENT HAS
NOTHING TO DO WITH FOREIGN AFFAIRS.  WHILE THE OBVIOUS FACT THAT
CONGRESS WAS NOT CONSCIOUSLY PURSUING ANY FOREIGN AFFAIRS OBJECTIVE MAY
NOT NECESSARILY PRECLUDE RELIANCE ON THAT POWER AS A GROUND OF
CONSTITUTIONALITY, IT DOES RENDER SUCH RELIANCE INITIALLY
QUESTIONABLE. 

PROCEEDING TO THE APPELLANTS' ARGUMENTS, ONE ENCOUNTERS FIRST THE
SUGGESTION THAT A FUGITIVE DRAFT EVADER "CAN EASILY CAUSE INTERNATIONAL
COMPLICATIONS" WHILE HE REMAINS AN AMERICAN CITIZEN, BECAUSE THE UNITED
STATES CANNOT EXERCISE CONTROL OVER HIM WHILE HE IS ON FOREIGN SOIL. 

SUCH A "PROBLEM," OBVIOUSLY, EXISTS EQUALLY WITH RESPECT TO ANY
FUGITIVE FROM AMERICAN JUSTICE, AND CANNOT BE THOUGHT CONFINED TO DRAFT
EVADERS.  YET IT IS ONLY FUGITIVE DRAFT EVADERS WHO ARE EXPATRIATED. 
IT IS, THEREFORE, IMPOSSIBLE TO AGREE THAT CONGRESS WAS ACTING ON ANY
SUCH INHERENTLY UNLIKELY PREMISE AS THAT EXPATRIATION WAS NECESSARY SO
AS TO AVOID RESPONSIBILITY FOR THOSE DESCRIBED BY SEC. 401(J). 

BUT, CONTEND THE APPELLANTS, SEC. 401(J) IS DESIGNED TO PREVENT
EMBROILMENTS AS WELL AS EMBARRASSMENTS.  DURING WARTIME, IT IS ARGUED,
OUR GOVERNMENT WOULD VERY LIKELY FEEL IMPELLED TO DEMAND OF FOREIGN
HAVENS THE RETURN OF OUR FUGITIVE DRAFT EVADERS; AND SUCH A DEMAND
MIGHT SERIOUSLY OFFEND A "HOST" COUNTRY, LEADING TO EMBROILMENT.  THE
TRANSPARENT WEAKNESS OF THIS ARGUMENT - ITS MANIFEST INCONSISTENCY -
MUST BE IMMEDIATELY APPARENT.  SURELY THE UNITED STATES NEED NOT
DISABLE ITSELF FROM MAKING INJUDICIOUS DEMANDS IN ORDER TO RESTRAIN
ITSELF FROM DOING SO.  THE ARGUMENT RESTS ON THE POSSIBILITY THAT THERE
MAY BE AN URGENT NEED TO SECURE A FUGITIVE'S RETURN.  IF THAT IS SO, A
DEMAND MUST BE MADE WITH ITS ATTENDANT RISK OF EMBROILMENT.  IF
EXPATRIATING THE FUGITIVE MAKES A DEMAND IMPOSSIBLE, IT ALSO FOREVER
DEFEATS THE OBJECTIVE - HIS RETURN - WHICH WOULD HAVE IMPELLED THE
DEMAND IN THE FIRST PLACE.  IF RECAPTURING FUGITIVES MAY EVER BE
URGENTLY NECESSARY, IT IS OBVIOUS THAT AUTOMATIC EXPATRIATION COULD
ONLY BE DIRECTLY OPPOSED TO OUR INTEREST - WHICH REQUIRES THAT THE
GOVERNMENT BE FREE TO CHOOSE WHETHER OR NOT TO MAKE THE DEMAND, IN
LIGHT OF ALL THE ATTENDANT CIRCUMSTANCES.    THE APPELLANTS HAVE STILL
ANOTHER ARGUMENT.  IT IS THAT WHEREAS THE GOVERNMENT IS UNDER AN
OBLIGATION TO SEEK THE RETURN OF THE FUGITIVE AS LONG AS HE REMAINS A
CITIZEN, BY TERMINATING CITIZENSHIP "CONGRESS HAS ELIMINATED AT THE
OUTSET ANY FURTHER CLAIM THAT THIS COUNTRY WOULD HAVE TO THE SERVICES
OF THESE INDIVIDUALS, AND HAS REMOVED ALL BASIS FOR FURTHER DEMANDS
UPON THEM  ...  ."  THIS SIMPLY IS NOT SO.  EXPATRIATION MAY HAVE NO
EFFECT ON A CONTINUING MILITARY-SERVICE OBLIGATION.   (FN7)  AND IT IS
INCONTROVERTIBLE THAT THE POWER TO PUNISH THE INITIAL DRAFT-EVASION
OFFENSE CONTINUES ALTHOUGH CITIZENSHIP HAS MEANWHILE BECOME FORFEIT. 
THE GOVERNMENT HAS SO ARGUED IN ADDRESSING ITSELF TO THE COLLATERAL
ESTOPPEL ISSUE IN MENDOZA-MARTINEZ.  I CANNOT UNDERSTAND HOW ANY
OBLIGATION TO APPREHEND CAN BE OTHER THAN COEXTENSIVE WITH THE POWER TO
PUNISH.  THE GOVERNMENT CANNOT HAVE IT BOTH WAYS IN THE SAME CASE. 

           III. 

THE APPELLANTS URGE THAT, WHOLLY APART FROM ANY EXPLICIT
CONGRESSIONAL POWER, SEC.  401(J) MAY BE SUSTAINED AS AN EXERCISE OF A
POWER INHERENT IN UNITED STATES SOVEREIGNTY.  MY BRETHREN WHO WOULD
UPHOLD THE STATUTE HAVE NOT ADVERTED TO THIS POSSIBILITY EXCEPT, AS I
SHALL POINT OUT, AS THEY HAVE ADOPTED IN PASSING CERTAIN RELATED
ARGUMENTS. 

PRELIMINARILY, IT IS DIFFICULT TO SEE WHAT IS RESOLVED BY THE
ASSERTION THAT SOVEREIGNTY IMPLIES A POWER TO EXPATRIATE.  THAT
PROPOSITION MAY BE ADMITTED AND YET HAVE NO BEARING ON THE PROBLEM
FACING THE COURT. 

FOR, UNDER OUR CONSTITUTION, ONLY A DELIMITED PORTION OF SOVEREIGNTY
HAS BEEN ASSIGNED TO THE GOVERNMENT OF WHICH CONGRESS IS THE
LEGISLATIVE ARM.  TO SAY THAT THERE INHERES IN UNITED STATES
SOVEREIGNTY THE POWER TO SEVER THE TIE OF CITIZENSHIP DOES NOT ANSWER
THE INQUIRY INTO WHETHER THAT POWER HAS BEEN GRANTED TO CONGRESS.  ANY
ARGUMENT THAT IT HAS BEEN SO DELEGATED WHICH ESCHEWS REFERENCE TO THE
CONSTITUTIONAL TEXT MUST, IT APPEARS, MAKE ITS APPEAL TO SOME SENSE OF
THE INEVITABLE FITNESS OF THINGS.  THE CONTENTIONS HERE FALL FAR SHORT
OF ANY SUCH STANDARDS. 

IT IS TOO SIMPLE TO SUGGEST THAT IT IS FITTING THAT CONGRESS BE
EMPOWERED EITHER TO EXTINGUISH THE CITIZENSHIP OF ONE WHO REFUSES TO
PERFORM THE "ULTIMATE DUTY" OF RISING TO THE GOVERNMENT'S DEFENSE IN
TIME OF CRISIS.  I PAUSE TO NOTE THAT FOR THIS COURT TO LEND ANY
CREDENCE WHATEVER TO SUCH A CRITERION - AS THE DISSENT WOULD, SEE PP.
214-215, INFRA - IS FRAUGHT WITH THE MOST FAR-REACHING CONSEQUENCES. 
FOR IF CONGRESS NOW SHOULD DECLARE THAT A REFUSAL TO PAY TAXES, TO DO
JURY DUTY, TO TESTIFY, TO VOTE, IS NO LESS AN ABNEGATION OF ULTIMATE
DUTY - OR AN IMPLIED RENUNCIATION OF ALLEGIANCE - THAN A REFUSAL TO
PERFORM MILITARY SERVICE, I AM UNABLE TO PERCEIVE HOW THIS COURT, ON
THE DISSENT'S VIEW, COULD PRESUME TO GAINSAY SUCH A JUDGMENT.  BUT THE
ARGUMENT IS NOT SAVED EVEN BY A WILLINGNESS TO ACCEPT THESE
CONSEQUENCES.  THERE REALLY IS NO WAY TO DISTINGUISH BETWEEN THE
SEVERAL FAILURES OF A CITIZEN'S DUTY I HAVE JUST ENUMERATED, OR TO
EXPLAIN WHY EVASION OF MILITARY SERVICE SHOULD BE VISITED WITH THIS
SPECIALLY HARSH CONSEQUENCE, EXCEPT TO RECOGNIZE THAT THE LATTER
DEFECTION IS PALPABLY MORE PROVOCATIVE THAN THE OTHERS.  BUT, AS I HAVE
ARGUED IN ANOTHER CONTEXT, WHEN CONDUCT IS SINGLED OUT OF A CLASS FOR
SPECIALLY ADVERSE TREATMENT SIMPLY BECAUSE IT IS SPECIALLY PROVOCATIVE,
THERE IS NO ESCAPING THE CONCLUSION THAT PUNISHMENT IS BEING
ADMINISTERED.  SEE FLEMMING V. NESTOR, 363 U.S. 603, 635-640
(DISSENTING OPINION).  PURSUIT OF THE "ULTIMATE DUTY" CONCEPT, THEN,
SIMPLY REAFFIRMS MY CONVICTION THAT THIS CASE IS INDISTINGUISHABLE FROM
TROP. 

THE APPELLANTS, HOWEVER, ARGUE THAT IT IS FITTING THAT CONGRESS BE
EMPOWERED TO EXTINGUISH THE CITIZENSHIP OF ONE WHO NOT ONLY REFUSES TO
PERFORM HIS DUTY, BUT WHO ALSO "REPUDIATES HIS WIDER OBLIGATION AS A
CITIZEN TO SUBMIT TO THIS COUNTRY'S JURISDICTION AND AUTHORITY" BY
FLEEING THE COUNTRY IN ORDER TO ESCAPE THAT DUTY.  IT IS, ONCE AGAIN,
DIFFICULT TO SEE HOW THIS FLIGHT-REPUDIATION THEORY CAN BE CONFINED TO
DRAFT EVASION.  EVERY FUGITIVE FROM UNITED STATES JUSTICE REPUDIATES
AMERICAN AUTHORITY OVER HIM IN EQUAL MEASURE.  IF THE DIFFERENCE LIES
IN THE QUALITY OF THE ACT OF DRAFT EVASION, THEN WE ARE BACK ONCE AGAIN
TO PUNISHMENT. 

THE APPELLANTS ASSERT THAT "A GOVERNMENT WHICH CANNOT EXERT FORCE TO
COMPEL A CITIZEN TO PERFORM HIS LAWFUL DUTY IS, TO THAT EXTENT, NOT
SOVEREIGN AS TO HIM."  THE APPARENT COROLLARY IS THAT CONGRESSIONALLY
IMPOSED EXPATRIATION IS, UNDER SUCH CIRCUMSTANCES, IN EFFECT
DECLARATORY OF A CHANGE IN STATUS WHICH HAS ALREADY OCCURRED.  BUT THE
GOVERNMENT IS FAR FROM CONCEDING ITS LACK OF AUTHORITY OVER A FUGITIVE
DRAFT EVADER.  IT INFORMS US THAT "THE FEDERAL GOVERNMENT HAS THE POWER
TO ORDER OUR CITIZENS ABROAD TO RETURN, FOR ANY LAWFUL PURPOSE," CITING
BLACKMER V. UNITED STATES, 284 U.S. 421.  AND, IN ANY EVENT, THE
ARGUMENT PROVES FAR TOO MUCH, FOR IT WOULD JUSTIFY EXPATRIATION OF ANY
AMERICAN ABROAD FOR ANY REASON WHO WOULD, EQUALLY WITH PERSONS COVERED
BY SEC. 401(J), BE OUTSIDE OUR GOVERNMENT'S POWER TO COMPEL THE
PERFORMANCE OF DUTY. 

FN1 THE PLURALITY OPINION IN TROP RESTED ALTERNATIVELY ON THE
PROPOSITION THAT DIVESTITURE OF CITIZENSHIP CAN RESULT ONLY FROM A
CLEAR RENUNCIATION OR TRANSFER OF ALLEGIANCE ON THE PART OF THE
CITIZEN.  HOWEVER, SINCE THIS VIEW HAD BEEN REJECTED BY A MAJORITY OF
THE COURT IN PEREZ V. BROWNELL, SUPRA, THE TROP PLURALITY RELIED
PRINCIPALLY ON THE REASONING OUTLINED IN THE TEXT. 

FN2  MY DISCUSSION OF SEC. 401(J) IS EQUALLY APPLICABLE TO ITS RE
ENACTMENT AS SEC.  349(A)(10) OF THE IMMIGRATION AND NATIONALITY ACT OF
1952, INVOLVED IN THE CORT CASE. 

FN3  THE EXAMPLES I HAVE GIVEN MUST, OF COURSE, HAVE SOME DETERRENT
EFFECT UPON THE CONDUCT FOR WHICH THEY ARE ADMINISTERED.  BUT THIS
COULD NOT, IN THE DISSENT'S VIEW, RENDER THEM PUNITIVE.  FOR
EXPATRIATION AS EMPLOYED IN SEC. 401(J) MUST ALSO, IN THE DISSENT'S
VIEW, HAVE SOME DETERRENT EFFECT UPON DRAFT-EVADING FLIGHT, SINCE IF
EXPATRIATION WERE NOT THOUGHT BY THE DISSENT TO BE AN UNDESIRABLE
CONSEQUENCE, IT COULD NOT SERVE THE MORALE-BOOSTING PURPOSE WHICH IS
ATTRIBUTED TO IT. (BUT SEE PP. 192-193 AND N. 6, INFRA.)  AND, AS THE
DISSENT RECOGNIZES, THE LEGISLATIVE PURPOSE WAS AT LEAST IN PART A
DETERRENT ONE. 

FN4  THE "PURPOSE OF EVADING OR AVOIDING TRAINING AND SERVICE"
SPECIFIED IN SEC. 401(J) SEEMS NO GRAVER A REFLECTION UPON LOYALTY THAN
THE "INTENT TO REMAIN AWAY  ...  PERMANENTLY" OR THE "INTENT TO AVOID
HAZARDOUS DUTY OR TO SHIRK IMPORTANT SERVICE" SPECIFIED IN THE
DEFINITION OF DESERTION CODIFIED IN THE UNIFORM CODE OF MILITARY
JUSTICE, 10 U.S.C. SEC.  885.  THE MERE FACT THAT THE CONDUCT DESCRIBED
IN SEC. 401(J) REQUIRES THE CROSSING OF A FRONTIER DOES NOT GUARANTEE
THAT IT WILL BE ANY LESS EQUIVOCAL OR MORE SERIOUS THAN WAS TROP'S
DESERTION.  A RESIDENT OF TEXAS MIGHT, DURING TIME OF WAR, CROSS THE
BORDER INTO MEXICO INTENDING TO EVADE THE DRAFT, THEN CHANGE HIS MIND
AND RETURN THE NEXT DAY.  SUCH CONDUCT CLEARLY RESULTS IN EXPATRIATION
UNDER SEC. 401(J). 

FN5  IT IS OBVIOUS THAT SEC. 401(J) DOES NOT REACH ANY CONDUCT NOT
OTHERWISE MADE CRIMINAL BY THE SELECTIVE SERVICE LAWS.  62 STAT. 622,
50 U.S.C. APP. SEC. 462(A), IN RELEVANT PART IDENTICAL WITH SELECTIVE
TRAINING AND SERVICE ACT OF 1940, SEC. 11, UNDER WHICH MENDOZA-MARTINEZ
WAS PROSECUTED, PROVIDES:  "ANY PERSON WHO  ...  EVADES OR REFUSES
REGISTRATION OR SERVICE IN THE ARMED FORCES OR ANY OF THE REQUIREMENTS
OF THIS TITLE  ...  , 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  ... ." 

FN6  THE PROSPECTIVE FUGITIVE DRAFT EVADER MUST CONSIDER THAT IF HE
FLEES, EITHER (1) HE MUST EVENTUALLY FACE CRIMINAL FINE AND
IMPRISONMENT; OR (2) HE WILL NOT BE ABLE TO RETURN.  TO SAY THAT
PROSPECT (1) WILL NOT DETER IS SIMPLY TO REJECT OUR ENTIRE CRIMINAL
JUSTICE AS FRUITLESS SO FAR AS DETERRENCE IS AN OBJECT.  TO SAY THAT
PROSPECT (2) WILL NOT DETER IS SIMPLY TO CONCEDE THAT EXPATRIATION WILL
NOT DETER, EITHER - EXCEPT ON THE STRAINED ASSUMPTION THAT WITHDRAWAL
OF DIPLOMATIC PROTECTION CAN WORK THE DIFFERENCE. 

FN7  AS THE GOVERNMENT FORCEFULLY ARGUES ON THE COLLATERAL ESTOPPEL
POINT IN MENDOZA-MARTINEZ, THE SELECTIVE SERVICE REQUIREMENTS APPLY TO
RESIDENT ALIENS AS WELL AS TO CITIZENS.  SECTION 401(J), AS DISCUSSED
IN CONGRESS AND BY THE APPELLANTS AND IN MR. JUSTICE STEWART'S DISSENT
IN THESE CASES, SEEMS TO REFLECT A SPECIAL CONCERN WITH THOSE WHO FLEE
"FOR THE DURATION," INTENDING TO RETURN AFTER PEACE IS RESTORED.  THE
GOVERNMENT COULD WELL ARGUE THAT SUCH A FUGITIVE, ALTHOUGH EXPATRIATED,
IS A RESIDENT ALIEN SUBJECT TO COMPULSORY MILITARY SERVICE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

I AGREE WITH AND JOIN IN PARTS I, II, III, AND IV OF MY BROTHER
STEWART'S OPINION, LEADING TO THE CONCLUSION THAT SEC. 401(J) OF THE
NATIONALITY ACT OF 1940, APPLICABLE IN NO. 2 (MENDOZA), IS
CONSTITUTIONAL.  I ALSO AGREE WITH HIS CONCLUSION THAT, FOR THE SAME
REASONS, THE SUBSTANTIVE PROVISIONS OF SEC. 349(A)(10) OF THE 1952 ACT,
APPLICABLE IN NO. 3 (CORT), ARE CONSTITUTIONAL.  I DISAGREE, HOWEVER,
WITH HIS VIEW THAT THE EVIDENTIARY PRESUMPTION CONTAINED IN SEC.
349(A)(10) IS UNCONSTITUTIONAL.  I AM CONTENT TO STATE MY REASONS IN
SUMMARY FORM. 

1.  AS I READ THE OPINION BELOW IN THE CORT CASE I DO NOT THINK THE
DISTRICT COURT RELIED ON THE SEC. 349(A)(10) PRESUMPTION.  (FN1)  THIS
VIEW IS FORTIFIED BY SEVERAL CONSIDERATIONS:  (I) THE CONSTITUTIONALITY
OF THE PRESUMPTION WAS ATTACKED IN CORT'S COMPLAINT AND WAS BRIEFED BY
BOTH SIDES IN THE DISTRICT COURT; (II) THE TEXT OF THE PRESUMPTION
ITSELF WAS SET FORTH IN THE OPINION OF THE DISTRICT COURT (187 F.
SUPP., AT 684) AT ONLY A PAGE OR TWO BEFORE THE EXTRACT QUOTED IN THE
MARGIN (NOTE 1); AND (III) IN THESE CIRCUMSTANCES IT IS DIFFICULT TO
BELIEVE THAT THE LOWER COURT, COMPOSED OF THREE EXPERIENCED JUDGES,
EITHER INADVERTENTLY IGNORED THE PRESUMPTION OR UPHELD ITS VALIDITY SUB
SILENTIO.  THE MORE LIKELY CONCLUSION IS THAT FINDING THE EVIDENCE
SUFFICIENT WITHOUT THE AID OF THE PRESUMPTION, THE LOWER COURT SAW NO
NEED FOR REACHING A SECOND CONSTITUTIONAL ISSUE. 

SO VIEWING THE DISTRICT COURT'S OPINION, I THINK THE EVIDENCE WAS
QUITE SUFFICIENT UNDER THE "CLEAR, UNEQUIVOCAL, AND CONVINCING"
STANDARD OF SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 135, TO
SUPPORT THE FINDING BELOW THAT CORT HAD REMAINED ABROAD FOR THE PURPOSE
OF EVADING MILITARY SERVICE.  (FN2) 

2.  IN ADDITION, I SEE NOTHING CONSTITUTIONALLY WRONG WITH THIS
PRESUMPTION EITHER ON ITS FACE OR AS RELATED TO THIS CASE.  SIMILAR
PRESUMPTIONS HAVE BEEN CONSISTENTLY SUSTAINED IN CRIMINAL STATUTES,
WHERE THE STANDARD OF PROOF IS CERTAINLY NO LESS STRINGENT THAN IN
DENATIONALIZATION CASES.  SEE, E.G., YEE HEM V. UNITED STATES, 268 U.S.
178; CASEY V. UNITED STATES, 276 U.S. 413; HAWES V. GEORGIA, 258 U.S.
1; CF. FONG YUE TING V. UNITED STATES, 149 U.S. 698.  AS REGARDS THE
REQUIREMENT THAT THERE MUST BE A "RATIONAL CONNECTION BETWEEN THE FACT
PROVED AND THE ULTIMATE FACT PRESUMED," TOT V. UNITED STATES, 319 U.S.
463, 467, THIS PRESUMPTION IS SURELY A FAR CRY FROM THAT HELD
CONSTITUTIONALLY INVALID IN THE TOT CASE.  (FN3)  AND SINCE WE ARE
CONCERNED HERE ONLY WITH THE PRESUMPTION AS APPLIED IN THIS INSTANCE
(IF INDEED IT WAS IN FACT APPLIED BELOW OR MUST NOW BE RESORTED TO IN
THIS COURT), IT IS NO ANSWER TO SUGGEST THAT IN OTHER INSTANCES
APPLICATION OF THE PRESUMPTION MIGHT BE UNCONSTITUTIONAL. 

THUS WHETHER OR NOT THE SEC. 349(A)(10) PRESUMPTION IS INVOLVED IN
THE CORT CASE, I BELIEVE THAT THE ORDER OF DENATIONALIZATION THERE, AS
WELL AS IN THE MENDOZA CASE, SHOULD BE UPHELD.  (FN4) 

FN1  THE DISTRICT COURT SAID:  "WHEN, AS HERE, A CITIZENSHIP CLAIMANT
ESTABLISHES HIS BIRTH IN THE UNITED STATES THE BURDEN IS UPON THE
GOVERNMENT TO PROVE BY CLEAR, CONVINCING AND UNEQUIVOCAL EVIDENCE THE
ACT IT RELIES UPON TO SHOW EXPATRIATION.  NISHIKAWA V. DULLES, 356 U.S.
129, 133  ... .  WE THINK THE GOVERNMENT HAS MET THIS BURDEN.  IN 1951
WHEN THE PLAINTIFF WENT ABROAD IT WAS FOR A LIMITED PERIOD.  ON
DECEMBER 29, 1952, HE ACCEPTED A POSITION AT THE HARVARD MEDICAL SCHOOL
TO BEGIN THE LATTER PART OF 1953, AND INDICATED THAT HE HAD MADE
ARRANGEMENTS FOR PRIOR TRANSPORTATION TO THE UNITED STATES.  HIS
INTENTION TO RETURN TO THIS COUNTRY WAS STEADFAST UNTIL HE LEARNED
SHORTLY AFTER JANUARY 31, 1953, THAT THE SCHOOL AUTHORITIES FELT THAT
THEY COULD NOT DECLARE HIM 'ESSENTIAL' FOR TEACHING, AND THAT HE
PROBABLY WOULD BE DRAFTED.  HE WROTE THEM ON FEBRUARY 10, 1953, THAT
UNTIL HE HEARD 'SOMETHING DEFINITE' FROM THE DRAFT BOARD HE WAS
'RELUCTANT TO TAKE A DECISION THAT MAY PROVE TO BE FOOLISH OR
PREMATURE.'  ON FEBRUARY 9, JUNE 4, AND JULY 3 IN 1953 THE DRAFT BOARD
SENT HIM NOTICES TO REPORT FOR PHYSICAL EXAMINATION, AND THEREAFTER
ORDERED HIM TO REPORT FOR INDUCTION ON SEPTEMBER 14, 1953.  THE
PLAINTIFF MADE NO RESPONSE OR COMPLIANCE BUT REMAINED ABROAD.  WE ARE
CONVINCED THAT HIS PURPOSE WAS TO AVOID SERVICE IN THE ARMED FORCES. 

"THE ONLY QUESTION LEFT IN THIS CASE IS THE CONSTITUTIONALITY OF THE
LAW UNDER WHICH THE GOVERNMENT MAINTAINS THAT THE PLAINTIFF WAS
DIVESTED OF HIS CITIZENSHIP."  187 F. SUPP., AT 686. 

FN2  CORT WAS NOT CHARGED WITH GOING ABROAD IN ORDER TO AVOID
MILITARY SERVICE, BUT SOLELY WITH REMAINING ABROAD TO AVOID INDUCTION. 
THE EVIDENCE SHOWS CONVINCINGLY THAT CORT'S PURPOSE IN REMAINING
ABROAD, FIRST IN ENGLAND AND THEN IN CZECHOSLOVAKIA, WAS TO AVOID THE
DRAFT.    ON MAY 29, 1951, CORT LEFT THE UNITED STATES TO ACCEPT A
RESEARCH FELLOWSHIP AT THE UNIVERSITY OF CAMBRIDGE, ENGLAND.  A FEW
DAYS BEFORE HIS DEPARTURE HE REGISTERED AS A "SPECIAL REGISTRANT" UNDER
THE DOCTORS DRAFT ACT.  ON SEPTEMBER 11, 1952, HE WAS CLASSIFIED I-A
(MEDICAL), AVAILABLE FOR MILITARY SERVICE.  MEANWHILE, IN LATE 1951 THE
GOVERNMENT HAD REQUESTED CORT TO SURRENDER HIS PASSPORT FOR
INVALIDATION, EXCEPT FOR RETURN TO THE UNITED STATES.  HE DID NOT DO
THIS. 

ON DECEMBER 29, 1952, CORT ACCEPTED, BY A LETTER SENT FROM ENGLAND, A
TEACHING POSITION AT THE HARVARD MEDICAL SCHOOL, INDICATING HIS
INTENTION TO RETURN TO THE UNITED STATES IN LATE JUNE 1953 IN ORDER TO
START WORK ON AUGUST 1, 1953.  ON THE SAME DAY HE ALSO WROTE TO THE
MASSACHUSETTS MEDICAL ADVISORY COMMITTEE, STATING THAT HE WOULD BEGIN
TEACHING AT HARVARD IN JULY 1953, AND REQUESTING A DRAFT DEFERMENT ON
THE GROUND THAT THIS "CIVILIAN FUNCTION  ...  SHALL BE FAR MORE
ESSENTIAL TO MY COUNTRY THAN MILITARY SERVICE." 

ON JANUARY 29, 1953, HARVARD AUTHORITIES ADVISED THE MEDICAL ADVISORY
COMMITTEE THAT THEY DID NOT REGARD CORT'S TEACHING POSITION AS
ESSENTIAL TO MEDICAL TEACHING, AND ON FEBRUARY 4, 1953, THE COMMITTEE
RECOMMENDED TO THE LOCAL DRAFT BOARD THAT CORT BE CONSIDERED "AVAILABLE
FOR ACTIVE MILITARY SERVICE."  BETWEEN JANUARY 31, 1953, AND MAY 29,
1953, THE DEAN OF THE HARVARD MEDICAL SCHOOL AND CORT EXCHANGED SEVERAL
LETTERS - THE DEAN SUGGESTING THAT CORT APPLY FOR A COMMISSION, CORT
EXPRESSING SURPRISE THAT THE TEACHING POSITION WAS NOT CONSIDERED
ESSENTIAL, AND THAT UNTIL HE HAD HEARD FROM HIS DRAFT BOARD HE WAS
"RELUCTANT TO TAKE A DECISION THAT MAY PROVE TO BE FOOLISH OR
PREMATURE." 

ON FEBRUARY 9, 1953, CORT WAS INFORMED BY HIS LOCAL DRAFT BOARD THAT
HIS DEFERMENT REQUEST HAD BEEN DENIED, AND HE WAS ORDERED TO REPORT FOR
A PHYSICAL EXAMINATION WITHIN 30 DAYS OF THE RECEIPT OF THE LETTER.  ON
JUNE 4, 1953, AND ON JULY 3, 1953, HE WAS AGAIN SENT NOTICES DIRECTING
HIM TO REPORT FOR A PHYSICAL EXAMINATION.  ON AUGUST 13, 1953, CORT WAS
ORDERED TO REPORT FOR INDUCTION ON SEPTEMBER 14, 1953.  CORT DID NOT
REPORT NOTWITHSTANDING THAT IN THE INTERVAL, AS HE CONCEDES, HE HAD
RECEIVED THESE NOTICES FROM HIS DRAFT BOARD. 

ON AUGUST 8, 1954, AFTER HIS RESIDENCE PERMIT IN ENGLAND WAS NOT
RENEWED BY THE BRITISH HOME OFFICE, CORT TOOK UP RESIDENCE IN PRAGUE,
CZECHOSLOVAKIA, WHERE NOT UNTIL APRIL 7, 1959, DID HE MAKE ANY
APPLICATION FOR A UNITED STATES PASSPORT. 

AGAINST THIS BACKGROUND THE DISTRICT COURT WAS CERTAINLY ENTITLED TO
DISCREDIT CORT'S BELATED EFFORTS, LONG AFTER HIS INDICTMENT FOR DRAFT
EVASION, TO COME TO TERMS WITH THE MILITARY AUTHORITIES, AS WELL AS HIS
SELF-SERVING STATEMENTS THAT HE REMAINED ABROAD TO AVOID INVESTIGATION
AS TO HIS ALLEGED COMMUNIST AFFILIATIONS OR POSSIBLE PROSECUTION UNDER
THE SMITH ACT. 

FN3  A PRESUMPTION THAT ONE IS REMAINING ABROAD WITH A PURPOSE OF
AVOIDING MILITARY SERVICE, ARISING FROM CONTINUED SOJOURN ABROAD IN THE
FACE OF AN UNCONTROVERTED CALL TO MILITARY DUTY, CERTAINLY BEARS NO
RESEMBLANCE WHATEVER TO THE PRESUMPTION FOUND WANTING IN TOT.  THAT
PRESUMPTION WAS THAT FIREARMS OR AMMUNITION POSSESSED BY ONE PREVIOUSLY
CONVICTED OF A CRIME OF VIOLENCE, OR WHO WAS A FUGITIVE FROM JUSTICE,
WERE RECEIVED NOT ONLY IN INTERSTATE COMMERCE, BUT ALSO SUBSEQUENT TO
THE ENACTMENT OF THE RELEVANT STATUTE, THE PRESUMPTION ARISING SOLELY
FROM A SHOWING THAT SUCH PERSON HAD ALREADY ONCE BEEN BEEN CONVICTED OF
A CRIME OF VIOLENCE AND WAS PRESENTLY IN POSSESSION OF FIREARMS OR
AMMUNITION. 

FN4  EVEN ON THE PREMISES OF MY BROTHER STEWART, THE PROPER COURSE
WOULD BE TO REMAND THE CORT CASE TO THE DISTRICT COURT FOR A NEW TRIAL,
NOT, AS HE PROPOSES, TO SET ASIDE THE BASIC DENATIONALIZATION
PROCEEDING.  THIS IS NOT A CASE OF THE DISTRICT COURT BEING CALLED ON
SIMPLY TO REVIEW FOR ERROR AN ADMINISTRATIVE ISSUE DE NOVO.  IN THESE
CIRCUMSTANCES THERE WOULD BE NO NEED TO HAVE THE ADMINISTRATIVE
PROCEEDING START ALL OVER AGAIN. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE WHITE JOINS, DISSENTING. 

THE COURT'S OPINION IS LENGTHY, BUT ITS THESIS IS SIMPLE:  (1) THE
WITHDRAWAL OF CITIZENSHIP WHICH THESE STATUTES PROVIDE IS
"PUNISHMENT."  (2) PUNISHMENT CANNOT CONSTITUTIONALLY BE IMPOSED EXCEPT
AFTER A CRIMINAL TRIAL AND CONVICTION.  (3)  THE STATUTES ARE THEREFORE
UNCONSTITUTIONAL.  AS WITH ALL SYLLOGISMS, THE CONCLUSION IS
INESCAPABLE IF THE PREMISES ARE CORRECT.  BUT I CANNOT AGREE WITH THE
COURT'S MAJOR PREMISE - THAT THE DIVESTITURE OF CITIZENSHIP WHICH THESE
STATUTES PRESCRIBE IS PUNISHMENT IN THE CONSTITUTIONAL SENSE OF THAT
TERM.  (FN1)

                I. 

DESPITE THE BROAD SWEEP OF SOME OF THE LANGUAGE OF ITS OPINION, THE
COURT AS I UNDERSTAND IT DOES NOT HOLD THAT INVOLUNTARY DEPRIVATION OF
CITIZENSHIP IS INHERENTLY AND ALWAYS A PENAL SANCTION - REQUIRING THE
SAFEGUARDS OF A CRIMINAL TRIAL.  SUCH A DETERMINATION WOULD OVERRULE AT
LEAST THREE DECISIVE PRECEDENTS IN THIS COURT. 

NEARLY 50 YEARS AGO THE COURT HELD THAT CONGRESS HAD CONSTITUTIONAL
POWER TO DENATIONALIZE A NATIVE-BORN CITIZEN WHO MARRIED A FOREIGNER
BUT CONTINUED TO RESIDE HERE.  MACKENZIE V. HARE, 239 U.S. 299.  THE
COURT THERE EXPLICITLY REJECTED THE ARGUMENT "THAT THE CITIZENSHIP OF
PLAINTIFF WAS AN INCIDENT TO HER BIRTH IN THE UNITED STATES, AND, UNDER
THE CONSTITUTION AND LAWS OF THE UNITED STATES, IT BECAME A RIGHT,
PRIVILEGE AND IMMUNITY WHICH COULD NOT BE TAKEN AWAY FROM HER EXCEPT AS
A PUNISHMENT FOR CRIME OR BY HER VOLUNTARY EXPATRIATION."  239 U.S., AT
308.  THE POWER OF CONGRESS TO DENATIONALIZE A NATIVEBORN CITIZEN,
WITHOUT A CRIMINAL TRIAL, WAS REAFFIRMED IN SAVORGNAN V. UNITED STATES,
338 U.S. 491.  AND LESS THAN FIVE YEARS AGO, IN PEREZ V. BROWNELL, 356
U.S. 44, THE COURT AGAIN UPHELD THIS CONGRESSIONAL POWER IN AN OPINION
WHICH UNAMBIGUOUSLY REJECTED THE NOTION, ADVANCED IN THAT CASE BY THE
DISSENTERS, (FN2) THAT THE MACKENZIE AND SAVORGNAN DECISIONS STAND ONLY
FOR THE PROPOSITION THAT CITIZENSHIP MAY BE VOLUNTARILY RELINQUISHED OR
ABANDONED EITHER EXPRESSLY OR BY CONDUCT.  IN SHORT, IT HAS BEEN
ESTABLISHED FOR ALMOST 50 YEARS THAT CONGRESS UNDER SOME CIRCUMSTANCES
MAY, WITHOUT PROVIDING FOR A CRIMINAL TRIAL, MAKE EXPATRIATION THE
CONSEQUENCE OF THE VOLUNTARY CONDUCT OF A UNITED STATES CITIZEN,
IRRESPECTIVE OF THE CITIZEN'S SUBJECTIVE INTENTION TO RENOUNCE HIS
NATIONALITY, AND IRRESPECTIVE TOO OF HIS AWARENESS THAT
DENATIONALIZATION WILL BE THE RESULT OF HIS CONDUCT.  (FN3)

         II. 

THE POSITION TAKEN BY THE COURT TODAY IS SIMPLY THAT, UNLIKE THE
STATUTES INVOLVED IN MACKENZIE, SAVORGNAN AND PEREZ, THE STATUTES AT
ISSUE IN THE PRESENT CASE EMPLOY DEPRIVATION OF CITIZENSHIP AS A PENAL
SANCTION.  IN SUPPORT OF THIS POSITION, THE COURT DEVOTES MANY PAGES OF
ITS OPINION TO A DISCUSSION OF A QUITE DIFFERENT LAW, ENACTED IN 1865,
AMENDED IN 1912, AND REPEALED IN 1940.  THAT LAW (FN4) PROVIDED FOR
FORFEITURE OF THE "RIGHTS OF CITIZENSHIP" AS AN ADDITIONAL PENALTY FOR
DESERTERS FROM THE ARMED FORCES AND FOR ENROLLED DRAFTEES WHO DEPARTED
FROM THEIR DISTRICT OR FROM THE UNITED STATES "TO AVOID ANY DRAFT INTO
THE MILITARY OR NAVAL SERVICE, DULY ORDERED  ...  ."  THAT STATUTE, AS
THE COURT CORRECTLY SAYS, "WAS IN TERMS PUNITIVE," AND I AGREE WITH THE
COURT THAT THE STATUTE'S LEGISLATIVE HISTORY, AS WELL AS SUBSEQUENT
JUDICIAL DECISIONS CONSTRUING IT, MAKES IT CLEAR THAT THE LAW WAS
PUNITIVE - IMPOSING ADDITIONAL PUNISHMENT UPON THOSE CONVICTED OF
EITHER OF THE OFFENSES MENTIONED.  (FN5) 

IN THESE CASES, HOWEVER, WE HAVE BEFORE US STATUTES WHICH WERE
ENACTED IN 1944 AND 1952 RESPECTIVELY.  IN CONSTRUING THESE STATUTES, I
THINK NOTHING IS TO BE GAINED FROM THE LEGISLATIVE HISTORY OF A QUITE
DIFFERENT LAW ENACTED BY A QUITE DIFFERENT CONGRESS IN 1865, NOR FROM
THE REPORTS OF STILL ANOTHER CONGRESS WHICH AMENDED THAT LAW IN 1912. 
UNLIKE THE 1865 LAW, THE LEGISLATION AT ISSUE IN THE CASES BEFORE US IS
NOT "IN TERMS PUNITIVE."  AND THERE IS NOTHING IN THE HISTORY OF THIS
LEGISLATION WHICH PERSUADES ME THAT THESE STATUTES, THOUGH NOT IN TERMS
PENAL, NONETHELESS EMBODY A PURPOSE OF THE CONGRESSES WHICH ENACTED
THEM TO IMPOSE CRIMINAL PUNISHMENT WITHOUT THE SAFEGUARDS OF A CRIMINAL
TRIAL. 

UNLIKE THE TWO SECTIONS OF THE NATIONALITY ACT OF 1940 WHICH WERE IN
ISSUE IN PEREZ V. BROWNELL (FN6) AND TROP V. DULLES, (FN7) SEC. 401(J)
DID NOT HAVE ITS GENESIS IN THE CABINET COMMITTEE'S DRAFT CODE WHICH
PRESIDENT ROOSEVELT SUBMITTED TO CONGRESS IN 1938.  (FN8) INDEED, SEC.
401(J) WAS THE PRODUCT OF A TOTALLY DIFFERENT ENVIRONMENT - THE
EXPERIENCE OF A NATION ENGAGED IN A GLOBAL WAR. 

ON FEBRUARY 16, 1944, ATTORNEY GENERAL BIDDLE ADDRESSED A LETTER TO
THE CHAIRMAN OF THE SENATE IMMIGRATION COMMITTEE, CALLING ATTENTION TO
CIRCUMSTANCES WHICH HAD ARISEN AFTER THE INSTITUTION OF THE DRAFT IN
WORLD WAR II, AND SUGGESTING THE LEGISLATION WHICH SUBSEQUENTLY BECAME
SEC. 401(J).  THE ATTORNEY GENERAL'S LETTER STATED IN PART: 

"I INVITE YOUR ATTENTION TO THE DESIRABILITY OF ENACTING LEGISLATION
WHICH WOULD PROVIDE (1) FOR THE EXPATRIATION OF CITIZENS OF THE UNITED
STATES WHO IN TIME OF WAR OR DURING NATIONAL EMERGENCY LEAVE THE UNITED
STATES OR REMAIN OUTSIDE THEREOF FOR THE PURPOSE OF EVADING SERVICE IN
THE ARMED FORCES OF THE UNITED STATES AND (2) FOR THE EXCLUSION FROM
THE UNITED STATES OF ALIENS WHO LEAVE THIS COUNTRY FOR THE ABOVE
MENTIONED PURPOSE. 

"UNDER EXISTING LAW A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH
OR BY NATURALIZATION, BECOMES EXPATRIATED BY OPERATION OF LAW IF HE (1)
OBTAINS NATURALIZATION IN A FOREIGN STATE; (2) TAKES AN OATH OF
ALLEGIANCE TO A FOREIGN COUNTRY; (3) SERVES IN THE ARMED FORCES OF A
FOREIGN STATE IF HE THEREBY ACQUIRES THE NATIONALITY OF SUCH FOREIGN
STATE; (4) ACCEPTS EMPLOYMENT UNDER A FOREIGN STATE FOR WHICH ONLY
NATIONALS OF SUCH STATE ARE ELIGIBLE; (5) VOTES IN A POLITICAL ELECTION
IN A FOREIGN STATE OR PARTICIPATES IN AN ELECTION OR PLEBISCITE TO
DETERMINE THE SOVEREIGNTY OVER FOREIGN TERRITORY; (6) MAKES A FORMAL
RENUNCIATION OF NATIONALITY BEFORE A DIPLOMATIC OR CONSULAR OFFICER OF
THE UNITED STATES IN A FOREIGN STATE; (7) DESERTS FROM THE ARMED FORCES
OF THE UNITED STATES IN TIME OF WAR AND IS CONVICTED THEREOF BY A COURT
MARTIAL; OR (8) IS CONVICTED OF TREASON (U.S.C., TITLE 8, SEC. 801). 
MACHINERY IS PROVIDED WHEREBY A PERSON WHO IS DENIED ANY RIGHT OR
PRIVILEGE OF CITIZENSHIP ON THE GROUND THAT HE HAS BECOME EXPATRIATED
MAY SECURE A JUDICIAL DETERMINATION OF HIS STATUS; AND IF HE IS OUTSIDE
OF THE UNITED STATES HE IS ENTITLED TO A CERTIFICATE OF IDENTITY WHICH
PERMITS HIM TO ENTER AND REMAIN IN THE UNITED STATES UNTIL HIS STATUS
HAS BEEN DETERMINED BY THE COURTS (NATIONALITY ACT OF 1940, SEC. 503;
U.S.C., TITLE 8, SEC. 903). 

"THE FILES OF THIS DEPARTMENT DISCLOSE THAT AT THE PRESENT TIME THERE
ARE MANY CITIZENS OF THE UNITED STATES WHO HAVE LEFT THIS COUNTRY FOR
THE PURPOSE OF ESCAPING SERVICE IN THE ARMED FORCES.  WHILE SUCH
PERSONS ARE LIABLE TO PROSECUTION FOR VIOLATION OF THE SELECTIVE
SERVICE AND TRAINING ACT OF 1940, IF AND WHEN THEY RETURN TO THIS
COUNTRY, IT WOULD SEEM PROPER THAT IN ADDITION THEY SHOULD LOSE THEIR
UNITED STATES CITIZENSHIP.  PERSONS WHO ARE UNWILLING TO PERFORM THEIR
DUTY TO THEIR COUNTRY AND ABANDON IT DURING ITS TIME OF NEED ARE MUCH
LESS WORTHY OF CITIZENSHIP THAN ARE PERSONS WHO BECOME EXPATRIATED ON
ANY OF THE EXISTING GROUNDS. 

"ACCORDINGLY, I RECOMMEND THE ENACTMENT OF LEGISLATION WHICH WOULD
PROVIDE (1) FOR THE EXPATRIATION OF CITIZENS OF THE UNITED STATES WHO
IN TIME OF WAR OR DURING A NATIONAL EMERGENCY LEAVE THE UNITED STATES
OR REMAIN OUTSIDE THEREOF FOR THE PURPOSE OF EVADING SERVICE IN THE
ARMED FORCES OF THE UNITED STATES AND (2) FOR THE EXCLUSION FROM THE
UNITED STATES OF ALIENS WHO LEAVE THIS COUNTRY FOR THAT PURPOSE.  ANY
PERSON WHO MAY BE DEEMED TO HAVE BECOME EXPATRIATED BY OPERATION OF THE
FOREGOING PROVISION WOULD BE ENTITLED TO HAVE HIS STATUS DETERMINED BY
THE COURTS PURSUANT TO THE ABOVE-MENTIONED SECTION OF THE NATIONALITY
ACT OF 1940."  (FN9) 

THE BILL WAS PASSED UNANIMOUSLY BY BOTH THE HOUSE AND THE SENATE, AND
BECAME PUBLIC LAW NO. 431 OF THE SEVENTY-EIGHTH CONGRESS.  NEITHER THE
COMMITTEE REPORTS NOR THE LIMITED DEBATE ON THE MEASURE IN CONGRESS
ADDS ANY SUBSTANTIAL GLOSS TO THE LEGISLATIVE ACTION.  (FN10)  AND THE
LEGISLATIVE HISTORY OF SEC. 349(A)(10) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, THE STATUTE DIRECTLY INVOLVED IN THE SECOND OF
THE TWO CASES NOW BEFORE US, GIVES NO ADDITIONAL ILLUMINATION AS TO THE
PURPOSE OF THE EIGHTY-SECOND CONGRESS, SINCE THE SUBSTANTIVE PROVISIONS
OF THAT STATUTE WERE BUT A RECODIFICATION OF SEC. 401(J) OF THE 1940
ACT.  (FN11) 

THE QUESTION OF WHETHER OR NOT A STATUTE IS PUNITIVE ULTIMATELY
DEPENDS UPON WHETHER THE DISABILITY IT IMPOSES IS BUT AN INCIDENT TO
SOME BROADER REGULATORY OBJECTIVE.  SEE CUMMINGS V. MISSOURI, 4 WALL. 
277, 320, 322; UNITED STATES V. LOVETT, 328 U.S. 303, 308-312; TROP V.
DULLES, 356 U.S., AT 107-109.  SEE GENERALLY, FLEMMING V. NESTOR, 363
U.S. 603, 613-617; CF. DE VEAU V. BRAISTED, 363 U.S. 144, 160;
COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1, 83
88.  IN COMMENTING ON THE NATURE OF THIS KIND OF INQUIRY, THE COURT
SAID IN FLEMMING V. NESTOR, "WE OBSERVE INITIALLY THAT ONLY THE
CLEAREST PROOF COULD SUFFICE TO ESTABLISH THE UNCONSTITUTIONALITY OF A
STATUTE ON SUCH A GROUND.  JUDICIAL INQUIRIES INTO CONGRESSIONAL
MOTIVES ARE AT BEST A HAZARDOUS MATTER, AND WHEN THAT INQUIRY SEEKS TO
GO BEHIND OBJECTIVE MANIFESTATIONS IT BECOMES A DUBIOUS AFFAIR INDEED. 
MOREOVER, THE PRESUMPTION OF CONSTITUTIONALITY WITH WHICH THIS
ENACTMENT LIKE ANY OTHER, COMES TO US FORBIDS US LIGHTLY TO CHOOSE THAT
READING OF THE STATUTE'S SETTING WHICH WILL INVALIDATE IT OVER THAT
WHICH WILL SAVE IT."  363 U.S., AT 617.    IN THE LIGHT OF THE STANDARD
ENUNCIATED IN NESTOR, I CAN FIND NO CLEAR PROOF THAT THE PRIME PURPOSE
OF THIS LEGISLATION WAS PUNITIVE.  TO BE SURE, THERE IS EVIDENCE THAT
THE DETERRENT EFFECT OF THE LEGISLATION WAS CONSIDERED.  MOREOVER, THE
ATTITUDE OF SOME MEMBERS OF CONGRESS TOWARD THOSE WHOM THE LEGISLATION
WAS INTENDED TO REACH WAS OBVIOUSLY FAR FROM NEUTRAL.  BUT THE FACT
THAT THE WORD "PENALTY" WAS USED BY AN INDIVIDUAL SENATOR IN THE
CONGRESSIONAL DEBATES IS HARDLY CONTROLLING.   AS THE CHIEF JUSTICE HAS
SO WISELY REMARKED, "HOW SIMPLE WOULD BE THE TASKS OF CONSTITUTIONAL
ADJUDICATION AND OF LAW GENERALLY IF SPECIFIC PROBLEMS COULD BE SOLVED
BY INSPECTION OF THE LABELS PASTED ON THEM]"  (FN12) 

IT SEEMS CLEAR TO ME THAT THESE PUTATIVE INDICIA OF PUNITIVE INTENT
ARE FAR OVERBALANCED BY THE FACT THAT THIS LEGISLATION DEALT WITH A
BASIC PROBLEM OF WARTIME MORALE REACHING FAR BEYOND CONCERN FOR ANY
INDIVIDUAL AFFECTED.  THE LEGISLATION APPLIES ONLY TO THOSE WHO HAVE
LEFT THIS COUNTRY OR REMAINED OUTSIDE OF IT FOR THE PURPOSE OF AVOIDING
THE DRAFT.  CONGRESS CAN REASONABLY BE UNDERSTOOD TO HAVE BEEN SAYING
THAT THOSE WHO FLEE THE COUNTRY FOR SUCH EXPRESS PURPOSES DO MORE THAN
SIMPLY DISOBEY THE LAW AND AVOID THE IMPOSITION OF CRIMINAL SANCTIONS. 
THEY DISASSOCIATE THEMSELVES ENTIRELY FROM THEIR NATION, SEEKING REFUGE
FROM THEIR WARTIME OBLIGATIONS UNDER THE AEGIS OF ANOTHER SOVEREIGN. 
CONGRESS COULD REASONABLY HAVE CONCLUDED THAT THE EXISTENCE OF SUCH A
GROUP, WHO VOLUNTARILY AND DEMONSTRABLY PUT ASIDE THEIR UNITED STATES
CITIZENSHIP "FOR THE DURATION," COULD HAVE AN EXTREMELY ADVERSE EFFECT
UPON THE MORALE AND THUS THE WAR EFFORT NOT ONLY OF THE ARMED FORCES,
BUT THE MILLIONS ENLISTED IN THE DEFENSE OF THEIR NATION ON THE
CIVILIAN FRONT.  DURING THE CONSIDERATION OF SEC. 401(J) IN CONGRESS
THERE WERE REPEATED REFERENCES TO THE EXPECTATION THAT FUGITIVE DRAFT
EVADERS THEN LIVING ABROAD WOULD RETURN TO THIS COUNTRY AFTER THE WAR
TO RESUME CITIZENSHIP AND TO ENJOY THE FRUITS OF VICTORY.  THE EFFECT
UPON WARTIME MORALE OF THE KNOWN EXISTENCE OF SUCH A GROUP, WHILE
PERHAPS NOT PRECISELY MEASURABLE IN TERMS OF IMPAIRED MILITARY
EFFICIENCY, COULD OBVIOUSLY HAVE BEEN CONSIDERED SUBSTANTIAL. 
DENATIONALIZATION OF THIS CLASS OF VOLUNTARY EXPATRIATES WAS A RATIONAL
WAY OF DEALING WITH THIS PROBLEM BY REMOVING ITS VISIBLE CAUSE.   IN
LIGHT OF THIS BROADER PURPOSE, I CANNOT FIND, AS THE COURT DOES, THAT
SEC. 401(J) WAS MOTIVATED PRIMARILY BY THE DESIRE TO WREAK VENGEANCE
UPON THOSE INDIVIDUALS WHO FLED THE COUNTRY TO AVOID MILITARY SERVICE. 
RATHER, THE STATUTE SEEMS TO ME PRECISELY THE SAME KIND OF REGULATORY
MEASURE, RATIONAL AND EFFICACIOUS, WHICH THIS COURT UPHELD AGAINST
SIMILAR OBJECTIONS IN PEREZ V. BROWNELL, SUPRA.  (FN13)

                                  III. 

FOR THE REASONS STATED, I CANNOT FIND IN THE TERMS OF THESE STATUTES
OR IN THEIR LEGISLATIVE HISTORY ANYTHING CLOSE TO THE "CLEAREST PROOF"
THAT THE BASIC CONGRESSIONAL PURPOSE WAS TO IMPOSE PUNISHMENT.  BUT
THAT ALONE DOES NOT ANSWER THE CONSTITUTIONAL INQUIRY IN THESE CASES. 
AS WITH ANY OTHER EXERCISE OF CONGRESSIONAL POWER, A LAW WHICH IMPOSES
DEPRIVATION OF CITIZENSHIP, TO BE CONSTITUTIONALLY VALID, MUST BEAR A
RATIONAL RELATIONSHIP TO AN AFFIRMATIVE POWER POSSESSED BY CONGRESS
UNDER THE CONSTITUTION.  THE APPELLANTS SUBMIT THAT IN ENACTING THIS
LEGISLATION, CONGRESS COULD RATIONALLY HAVE BEEN DRAWING ON ANY ONE OF
THREE SOURCES OF RECOGNIZED CONSTITUTIONAL POWER: THE IMPLIED POWER TO
ENACT LEGISLATION FOR THE EFFECTIVE CONDUCT OF FOREIGN AFFAIRS; THE
EXPRESS POWER TO WAGE WAR, TO RAISE ARMIES, AND TO PROVIDE FOR THE
COMMON DEFENSE; AND THE INHERENT ATTRIBUTES OF SOVEREIGNTY. 

THE APPELLANTS ARGUE THAT THIS LEGISLATION, LIKE THE STATUTORY
PROVISION SUSTAINED IN PEREZ V. BROWNELL, SUPRA, HAS A DIRECT
RELATIONSHIP TO FOREIGN AFFAIRS.  THEY POINT OUT THAT INTERNATIONAL
COMPLICATIONS COULD ARISE IF THIS COUNTRY ATTEMPTED TO EFFECT THE
RETURN OF CITIZEN DRAFT EVADERS BY REQUESTS TO A FOREIGN SOVEREIGN
WHICH THAT NATION MIGHT BE UNWILLING TO GRANT.  THE APPELLANTS INSIST
THAT THE POSSIBILITY OF INTERNATIONAL EMBROILMENTS RESULTING FROM
PROBLEMS CAUSED BY FUGITIVE DRAFT EVADERS IS NOT FANCIFUL, POINTING TO
THE BACKGROUND OF INTERNATIONAL INCIDENTS PRECEDING THE WAR OF 1812,
AND THE LONG HISTORY, LATER IN THE NINETEENTH CENTURY, OF THIS
COUNTRY'S INVOLVEMENT WITH OTHER NATIONS OVER THE ASSERTED LIABILITY OF
OUR NATURALIZED CITIZENS TO MILITARY OBLIGATIONS IMPOSED BY THEIR
NATIVE COUNTRIES.  (FN14)  EXPATRIATION OF THOSE WHO LEAVE OR REMAIN
AWAY FROM THE UNITED STATES WITH DRAFT EVASION AS THEIR PURPOSE, THE
APPELLANTS SAY, MIGHT REASONALBY BE ATTRIBUTED TO A CONGRESSIONAL
BELIEF THAT THIS WAS THE ONLY PRACTICAL WAY TO NIP THESE POTENTIAL
INTERNATIONAL PROBLEMS IN THE BUD.  COMPARE PEREZ V. BROWNELL, 356
U.S., AT 60; TROP V. DULLES, 356 U.S., AT 106 (CONCURRING OPINION). 

IN THE VIEW I TAKE OF THIS CASE, IT IS UNNECESSARY TO PURSUE FURTHER
AN INQUIRY AS TO WHETHER THE POWER TO REGULATE FOREIGN AFFAIRS COULD
JUSTIFY DENATIONALIZATION FOR THE CONDUCT IN QUESTION.  FOR I THINK IT
APPARENT THAT CONGRESS IN ENACTING THE STATUTE WAS DRAWING UPON ANOTHER
POWER, BROAD AND FAR REACHING. 

A BASIC PURPOSE OF THE CONSTITUTION WAS TO "PROVIDE FOR THE COMMON
DEFENCE."  TO THAT END, THE FRAMERS EXPRESSLY CONFERRED UPON CONGRESS A
COMPENDIUM OF POWERS WHICH HAVE COME TO BE CALLED THE "WAR POWER." 
(FN15)  RESPONSIVE TO THE SCOPE AND MAGNITUDE OF ULTIMATE NATIONAL
NEED, THE WAR POWER IS "THE POWER TO WAGE WAR SUCCESSFULLY."  SEE
CHARLES EVANS HUGHES, WAR POWERS UNDER THE CONSTITUTION, 42 A.B.A. REP.
232, 238. 

IT SEEMS TO ME EVIDENT THAT CONGRESS WAS DRAWING UPON THIS POWER WHEN
IT ENACTED THE LEGISLATION BEFORE US.  TO BE SURE, THE UNDERLYING
PURPOSE OF THIS LEGISLATION CAN HARDLY BE REFINED TO THE POINT OF
ISOLATING ONE SINGLE, PRECISE OBJECTIVE.  THE DESIRE TO END A POTENTIAL
DRAIN UPON THIS COUNTRY'S MILITARY MANPOWER WAS CLEARLY PRESENT IN THE
MINDS OF THE LEGISLATORS AND WOULD ITSELF HAVE CONSTITUTED A PURPOSE
HAVING SUFFICIENT RATIONAL NEXUS TO THE EXERCISE OF THE WAR POWER. 
INDEED, THERE IS NO MORE FUNDAMENTAL ASPECT OF THIS BROAD POWER THAN
THE BUILDING AND MAINTAINING OF ARMED FORCES SUFFICIENT FOR THE COMMON
DEFENSE.  SELECTIVE DRAFT LAW CASES, 245 U.S. 366; SEE FALBO V. UNITED
STATES, 320 U.S. 549.  BUT, IN ANY EVENT, THE WAR POWER CLEARLY
SUPPORTS THE OBJECTIVE OF REMOVING A CORROSIVE INFLUENCE UPON THE
MORALE OF A NATION AT WAR.  AS THE COURT SAID IN HIRABAYASHI V. UNITED
STATES, 320 U.S. 81, 93, THE WAR POWER "EXTENDS TO EVERY MATTER AND
ACTIVITY SO RELATED TO WAR AS SUBSTANTIALLY TO AFFECT ITS CONDUCT AND
PROGRESS.  THE POWER IS NOT RESTRICTED TO THE WINNING OF VICTORIES IN
THE FIELD AND THE REPULSE OF ENEMY FORCES.  IT EMBRACES EVERY PHASE OF
THE NATIONAL DEFENSE, INCLUDING THE PROTECTION OF WAR MATERIALS AND THE
MEMBERS OF THE ARMED FORCES FROM INJURY AND FROM THE DANGERS WHICH
ATTEND THE RISE, PROSECUTION AND PROGRESS OF WAR."  SEE LICHTER V.
UNITED STATES, 334 U.S. 742. 

THIS LEGISLATION IS THUS QUITE DIFFERENT FROM THE STATUTE HELD
INVALID IN TROP V. DULLES, SUPRA. IN THAT CASE THERE WERE NOT FIVE
MEMBERS OF THE COURT WHO WERE ABLE TO FIND THE "REQUISITE RATIONAL
RELATION" BETWEEN THE WAR POWER OF CONGRESS AND SEC.  401(G) OF THE
1940 ACT IMPOSING DENATIONALIZATION UPON WARTIME DESERTERS FROM THE
ARMED FORCES.  AS THE CONCURRING OPINION POINTED OUT, THE STATUTE WAS
"NOT LIMITED IN ITS EFFECTS TO THOSE WHO DESERT IN A FOREIGN COUNTRY OR
WHO FLEE TO ANOTHER LAND."  356 U.S., AT 107.  INDEED, "THE SOLICITOR
GENERAL ACKNOWLEDGED THAT FORFEITURE OF CITIZENSHIP WOULD HAVE OCCURRED
IF THE ENTIRE INCIDENT HAD TRANSPIRED IN THIS COUNTRY."  356 U.S., AT
92.  IT WAS EMPHASIZED THAT CONDUCT FAR SHORT OF DISLOYALTY COULD
TECHNICALLY CONSTITUTE THE MILITARY OFFENSE OF DESERTION, 356 U.S., AT
112, 113, AND THAT THE HARSHNESS OF DENATIONALIZATION FOR CONDUCT SO
POTENTIALLY EQUIVOCAL WAS "AN IMPORTANT CONSIDERATION WHERE THE
ASSERTED POWER TO EXPATRIATE HAS ONLY A SLIGHT OR TENUOUS RELATION TO
THE GRANTED POWER."  356 U.S., AT 110. 

THE LEGISLATION NOW BEFORE US, ON THE OTHER HAND, IS BY ITS TERMS
COMPLETELY INAPPLICABLE TO THOSE GUILTY OF DRAFT EVASION WHO HAVE
REMAINED IN THE UNITED STATES; IT IS EXCLUSIVELY AIMED AT THOSE,
WHETHER OR NOT EVER CRIMINALLY CONVICTED, WHO HAVE GONE TO OR REMAINED
IN ANOTHER LAND TO ESCAPE THE DUTY OF MILITARY SERVICE.  MOREOVER, THE
CONDUCT WHICH THE LEGISLATION REACHES COULD NEVER BE EQUIVOCAL IN
NATURE, BUT IS ALWAYS AND CLEARLY A "REFUSAL TO PERFORM THIS ULTIMATE
DUTY OF AMERICAN CITIZENSHIP."  TROP V. DULLES, 356 U.S., AT 112
(CONCURRING OPINION). 

  IV. 

THERE IS ONE MORE POINT TO BE MADE AS TO THE SUBSTANTIVE PROVISIONS
OF THE LEGISLATION BEFORE US IN THESE CASES.  PREVIOUS DECISIONS HAVE
SUGGESTED THAT CONGRESSIONAL EXERCISE OF THE POWER TO EXPATRIATE MAY BE
SUBJECT TO A FURTHER CONSTITUTIONAL RESTRICTION - A LIMITATION UPON THE
KIND OF ACTIVITY WHICH MAY BE MADE THE BASIS OF DENATIONALIZATION. 
WITHDRAWAL OF CITIZENSHIP IS A DRASTIC MEASURE.  MOREOVER, THE POWER TO
EXPATRIATE ENDOWS GOVERNMENT WITH AUTHORITY TO DEFINE AND TO LIMIT THE
SOCIETY WHICH IT REPRESENTS AND TO WHICH IT IS RESPONSIBLE. 

THIS COURT HAS NEVER HELD THAT CONGRESS' POWER TO EXPATRIATE MAY BE
USED UNSPARINGLY IN EVERY AREA IN WHICH IT HAS GENERAL POWER TO ACT. 
OUR PREVIOUS DECISIONS UPHOLDING INVOLUNTARY DENATIONALIZATION ALL
INVOLVED CONDUCT INCONSISTENT WITH UNDILUTED ALLEGIANCE TO THIS
COUNTRY.  BUT I THINK THE LEGISLATION AT ISSUE IN THESE CASES COMES SO
CLEARLY WITHIN THE COMPASS OF THOSE DECISIONS AS TO MAKE UNNECESSARY IN
THIS CASE AN INQUIRY AS TO WHAT THE ULTIMATE LIMITATION UPON THE
EXPATRIATION POWER MAY BE. 

THE CONDUCT TO WHICH THIS LEGISLATION APPLIES, INVOLVING NOT ONLY THE
ATTRIBUTE OF FLIGHT OR ABSENCE FROM THIS COUNTRY IN TIME OF WAR OR
NATIONAL EMERGENCY, BUT FLIGHT OR ABSENCE FOR THE EXPRESS PURPOSE OF
EVADING THE DUTY OF HELPING TO DEFEND THIS COUNTRY, AMOUNTS TO AN
UNEQUIVOCAL AND CONSPICUOUS MANIFESTATION OF NONALLEGIANCE, WHETHER
CONSIDERED OBJECTIVELY OR SUBJECTIVELY.  OURS IS A TRADITION OF THE
CITIZEN SOLDIER.  AS THIS COURT HAS SAID, "THE VERY CONCEPTION OF A
JUST GOVERNMENT AND ITS DUTY TO THE CITIZEN INCLUDES THE RECIPROCAL
OBLIGATION OF THE CITIZEN TO RENDER MILITARY SERVICE IN CASE OF NEED
AND THE RIGHT TO COMPEL IT."  SELECTIVE DRAFT LAW CASES, 245 U.S. 366,
AT 378.  IT IS HARDLY AN IMPROVIDENT EXERCISE OF CONSTITUTIONAL POWER
FOR CONGRESS TO DISOWN THOSE WHO HAVE DISOWNED THIS NATION IN TIME OF
ULTIMATE NEED. 

  V. 

FOR THE REASONS STATED, I BELIEVE THE SUBSTANTIVE PROVISIONS OF SEC.
401(J) OF THE 1940 ACT AND OF SEC. 349(A)(10) OF THE 1952 ACT ARE
CONSTITUTIONALLY VALID.  IN ADDITION TO ITS SUBSTANTIVE PROVISIONS,
HOWEVER, SEC. 349(A)(10) DECLARES: 

"FOR THE PURPOSES OF THIS PARAGRAPH FAILURE TO COMPLY WITH ANY
PROVISION OF ANY COMPULSORY SERVICE LAWS OF THE UNITED STATES SHALL
RAISE THE PRESUMPTION THAT THE DEPARTURE FROM OR ABSENCE FROM THE
UNITED STATES WAS FOR THE PURPOSE OF EVADING OR AVOIDING TRAINING AND
SERVICE IN THE MILITARY, AIR, OR NAVAL FORCES OF THE UNITED STATES." 

I THINK THE EVIDENTIARY PRESUMPTION WHICH THE STATUTE CREATES IS
CLEARLY INVALID, AND THAT IT FATALLY INFECTED THE ADMINISTRATIVE
DETERMINATION THAT JOSEPH HENRY CORT HAD LOST HIS CITIZENSHIP. 

THE DISTRICT COURT DID NOT MENTION THIS STATUTORY PRESUMPTION, AND IT
IS, THEREFORE, IMPOSSIBLE TO KNOW HOW MUCH THE COURT RELIED UPON IT, IF
AT ALL.  INDEED, THE DISTRICT COURT'S ATTENTION IN THIS CASE WAS
ORIENTED PRIMARILY TOWARDS THE ISSUE OF ITS JURISDICTION AND THE BASIC
ISSUE OF THE CONSTITUTIONALITY OF THE SUBSTANTIVE PROVISIONS OF SEC.
349(A)(10).  IN VIEW OF ITS HOLDING THAT SEC. 349(A)(10) IS
UNCONSTITUTIONAL, THE COURT UNDERSTANDABLY DID NOT GIVE EXHAUSTIVE
ATTENTION TO THE FACTUAL ISSUES PRESENTED, DEVOTING BUT A SINGLE SHORT
PARAGRAPH TO THE QUESTION OF WHETHER CORT'S CONDUCT HAD BROUGHT HIM
WITHIN THE STATUTE.  187 F. SUPP., AT 686. 

BUT IT IS CLEAR THAT THE FINAL REVIEWING AGENCY IN THE STATE
DEPARTMENT RELIED HEAVILY UPON THIS PRESUMPTION IN DETERMINING THAT
CORT HAD LOST HIS CITIZENSHIP.  THE BOARD OF REVIEW ON THE LOSS OF
NATIONALITY, IN ITS MEMORANDUM AFFIRMING THE INITIAL ADMINISTRATIVE
DETERMINATION THAT CORT HAD LOST HIS CITIZENSHIP, STATED THAT "BY
FAILING TO COMPLY WITH THE NOTICES SENT TO HIM BY HIS LOCAL BOARD, DR.
CORT BROUGHT UPON HIMSELF THE PRESUMPTION MENTIONED IN SECTION
349(A)(10), THAT HIS CONTINUED ABSENCE FROM THE UNITED STATES WAS FOR
THE PURPOSE OF EVADING OR AVOIDING TRAINING AND SERVICE IN THE
MILITARY, AIR, OR NAVAL FORCES OF THE UNITED STATES.  EVEN IF THE BOARD
SHOULD CONSIDER THAT THE PRESUMPTION COULD BE OVERCOME BY SHOWING THAT
A PERSON REMAINED ABROAD FOR A PURPOSE OTHER THAN TO AVOID THE MILITARY
SERVICE, THE EVIDENCE IN DR. CORT'S CASE, TAKEN AS A WHOLE, DOES NOT
SHOW THAT HE REMAINED ABROAD FOR A PURPOSE OTHER THAN TO AVOID BEING
DRAFTED."  ONE OF THE BOARD'S SPECIFIC FINDINGS WAS "THAT DR. CORT HAS
NOT OVERCOME THE PRESUMPTION RAISED IN THE LAST SENTENCE OF SECTION
349(A)(10) OF THE IMMIGRATION AND NATIONALITY ACT." 

AS WAS SAID IN SPEISER V. RANDALL, 357 U.S. 513, AT 520-521, "IT IS
COMMONPLACE THAT THE OUTCOME OF A LAWFUIT - AND HENCE THE VINDICATION
OF LEGAL RIGHTS - DEPENDS MORE OFTEN ON HOW THE FACTFINDER APPRAISES
THE FACTS THAN ON A DISPUTED CONSTRUCTION OF A STATUTE OR
INTERPRETATION OF A LINE OF PRECEDENTS.  THUS THE PROCEDURES BY WHICH
THE FACTS OF THE CASE ARE DETERMINED ASSUME AN IMPORTANCE FULLY AS
GREAT AS THE VALIDITY OF THE SUBSTANTIVE RULE OF LAW TO BE APPLIED. 
AND THE MORE IMPORTANT THE RIGHTS AT STAKE THE MORE IMPORTANT MUST BE
THE PROCEDURAL SAFEGUARDS SURROUNDING THOSE RIGHTS."    THE PRESUMPTION
CREATED BY SEC. 349(A)(10) IS WHOLLY AT ODDS WITH THE DECISIONS OF THE
COURT WHICH HOLD THAT IN CASES SUCH AS THIS A HEAVY BURDEN IS UPON THE
GOVERNMENT TO PROVE AN ACT OF EXPATRIATION BY CLEAR, CONVINCING, AND
UNEQUIVOCAL EVIDENCE.  GONZALES V. LANDON, 350 U.S. 920; NISHIKAWA V.
DULLES, 356 U.S. 129.  THIS STANDARD COMMANDS THAT "EVIDENTIARY
AMBIGUITIES ARE NOT TO BE RESOLVED AGAINST THE CITIZEN."  NISHIKAWA V.
DULLES, 356 U.S., AT 136. 

WITHOUT PAUSING TO CONSIDER WHETHER THIS EVIDENTIARY STANDARD IS A
CONSTITUTIONAL ONE, IT IS CLEAR TO ME THAT THE STATUTORY PRESUMPTION
HERE IN QUESTION IS CONSTITUTIONALLY INVALID BECAUSE THERE IS
INSUFFICIENT "RATIONAL CONNECTION BETWEEN THE FACT PROVED AND THE
ULTIMATE FACT PRESUMED."  TOT V. UNITED STATES, 319 U.S. 463, 467.  "A
STATUTE CREATING A PRESUMPTION THAT IS ARBITRARY OR THAT OPERATES TO
DENY A FAIR OPPORTUNITY TO REPEL IT VIOLATES THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT."  MANLEY V. GEORGIA, 279 U.S. 1, 6.  A
FEDERAL STATUTE WHICH CREATES SUCH A PRESUMPTION IS NO LESS VIOLATIVE
OF FIFTH AMENDMENT DUE PROCESS.  "MERE LEGISLATIVE FIAT MAY NOT TAKE
THE PLACE OF FACT IN THE DETERMINATION OF ISSUES INVOLVING LIFE,
LIBERTY OR PROPERTY."  IBID.  IT IS "ESSENTIAL THAT THERE SHALL BE SOME
RATIONAL CONNECTION BETWEEN THE FACT PROVED AND THE ULTIMATE FACT
PRESUMED, AND THAT THE INFERENCE OF ONE FACT FROM PROOF OF ANOTHER
SHALL NOT BE SO UNREASONABLE AS TO BE A PURELY ARBITRARY MANDATE." 
MOBILE, J.&K.C.R.  CO. V. TURNIPSEED, 219 U.S. 35, 43.  CF. SPEISER V.
RANDALL, SUPRA. 

THE FAILURE OF A PERSON ABROAD TO COMPLY WITH NOTICES SENT BY HIS
DRAFT BOARD WOULD OBVIOUSLY BE RELEVANT EVIDENCE IN DETERMINING WHETHER
THAT PERSON HAD GONE OR REMAINED ABORAD FOR THE PURPOSE OF AVOIDING
MILITARY SERVICE.  BUT THE STATUTE GOES MUCH FURTHER.  IT CREATES A
PRESUMPTION OF AN EXPATRIATING ACT FROM FAILURE TO COMPLY WITH "ANY
PROVISION OF ANY COMPULSORY SERVICE LAWS" BY A CITIZEN ABROAD,
REGARDLESS OF THE NATURE OF THE VIOLATIONS AND REGARDLESS OF THE
INNOCENCE OF HIS PURPOSE IN ORIGINALLY LEAVING THE UNITED STATES.  THE
VARIOUS COMPULSORY SERVICE LAWS OF THE UNITED STATES CONTAIN A
MULTITUDE OF PROVISIONS, MANY OF THEM TECHNICAL OR RELATIVELY
INSIGNIFICANT.  TO DRAW FROM THE VIOLATION OF A SINGLE SUCH PROVISION A
PRESUMPTION OF EXPATRIATION, WITH ITS SOLEMN CONSEQUENCES, IS, I THINK,
TO ENGAGE IN IRRATIONALITY SO GROSS AS TO BE CONSTITUTIONALLY
IMPERMISSIBLE.  (FN18) 

IT IS CLEAR FROM THE RECORD IN THIS CASE THAT CORT'S SOLE PURPOSE IN
LEAVING THE UNITED STATES IN 1951 WAS TO ACCEPT A POSITION AS A
RESEARCH FELLOW AT THE UNIVERSITY OF CAMBRIDGE, ENGLAND.  THE RECORD
ALSO MAKES CLEAR THAT IN 1946 CORT WAS CALLED UP UNDER THE SELECTIVE
SERVICE LAW, PHYSICALLY EXAMINED, AND CLASSIFIED AS 4F BECAUSE OF
PHYSICAL DISABILITY.  THE RECORD FURTHER SHOWS THAT CORT VOLUNTARILY
REGISTERED UNDER THE DOCTORS DRAFT ACT, MAKING SPECIAL ARRANGEMENTS
WITH HIS DRAFT BOARD TO DO SO IN ADVANCE OF THE EFFECTIVE DATE FOR
REGISTRATION UNDER THE STATUTE, A FEW DAYS BEFORE HE LEFT FOR EUROPE. 
CORT FILED AN AFFIDAVIT IN WHICH HE SWORE THAT IT WAS HIS BELIEF, IN
THE LIGHT OF HIS PHYSICAL DISABILITY, THAT THE INDUCTION ORDER WHICH HE
RECEIVED IN ENGLAND WAS NOT ISSUED IN GOOD FAITH TO SECURE HIS MILITARY
SERVICE, BUT THAT ITS PURPOSE INSTEAD WAS TO FORCE HIM TO RETURN TO THE
UNITED STATES TO BE INVESTIGATED BY THE HOUSE COMMITTEE ON UN-AMERICAN
ACTIVITIES OR PROSECUTED UNDER THE SMITH ACT.  HE HAS MADE REPEATED
EFFORTS TO ARRANGE WITH SELECTIVE SERVICE OFFICIALS FOR THE
FULFILLMENT, ALBEIT BELATEDLY, OF HIS MILITARY OBLIGATIONS, IF ANY, AND
IN 1959 HIS WIFE CAME TO THE UNITED STATES AND MET WITH OFFICIALS OF
THE SELECTIVE SERVICE SYSTEM FOR THAT PURPOSE.  THE VERY REASON HE
APPLIED IN PRAGUE FOR A UNITED STATES PASSPORT WAS, AS HE SWORE, SO
THAT HE COULD RETURN TO THE UNITED STATES IN ORDER TO RESPOND TO THE
INDICTMENT FOR DRAFT EVASION NOW PENDING AGAINST HIM IN MASSACHUSETTS
AND TO FULFILL HIS SELECTIVE SERVICE OBLIGATIONS, IF ANY.  WHEN CORT
APPLIED IN PRAGUE FOR A PASSPORT, THE AMERICAN CONSUL THERE, WHO
INTERVIEWED HIM, STATED HIS OPINION IN WRITING THAT HE HAD NO REASON TO
DISBELIEVE CORT'S SWORN STATEMENT THAT HE HAD NOT REMAINED OUTSIDE THE
UNITED STATES TO AVOID MILITARY SERVICE.  (FN17)  I MENTION THIS
EVIDENCE AS DISCLOSED BY THE PRESENT RECORD ONLY TO INDICATE WHY I
THINK A NEW ADMINISTRATIVE HEARING FREED FROM THE WEIGHT OF THE
STATUTORY PRESUMPTION IS IN ORDER, NOT TO IMPLY ANY PREJUDGMENT OF WHAT
I THINK THE ULTIMATE ADMINISTRATIVE DECISION SHOULD BE. 

IN NO. 3, RUSK V. CORT, I WOULD VACATE THE JUDGMENT OF THE DISTRICT
COURT AND REMAND THE CASE WITH INSTRUCTIONS TO DECLARE NULL AND VOID
THE CERTIFICATE OF LOSS OF NATIONALITY ISSUED TO CORT BY THE SECRETARY
OF STATE, SO THAT UPON CORT'S RENEWED APPLICATION FOR A PASSPORT, AN
ADMINISTRATIVE HEARING COULD BE HAD, FREE OF THE EVIDENTIARY
PRESUMPTION OF SEC. 349(A)(10).  IN THE EVENT THAT SUCH ADMINISTRATIVE
PROCEEDINGS SHOULD RESULT IN A FINDING THAT CORT HAD LOST HIS UNITED
STATES CITIZENSHIP, HE WOULD BE ENTITLED TO A DE NOVO JUDICIAL HEARING
(FN18) IN WHICH THE GOVERNMENT WOULD HAVE THE BURDEN OF PROVING AN ACT
OF EXPATRIATION BY CLEAR, CONVINCING, AND UNEQUIVOCAL EVIDENCE. 
GONZALES V. LANDON, 350 U.S. 920; NISHIKAWA V. DULLES, 356 U.S. 129. 

IN NO. 2, KENNEDY V. MENDOZA-MARTINEZ, I WOULD REVERSE THE JUDGMENT
OF THE DISTRICT COURT. 

FN1  THE STATUTE INVOLVED IN NO. 2, KENNEDY V. MENDOZA-MARTINEZ, IS
SEC. 401(J) OF THE NATIONALITY ACT OF 1940, AS AMENDED, 58 STAT. 746. 
THE STATUTE INVOLVED IN NO. 3, RUSK V. CORT, IS SEC. 349(A)(10) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 8 U.S.C.  SEC. 1481(A)(10). 
THE SUBSTANTIVE PROVISIONS OF THESE STATUTES ARE PRACTICALLY
IDENTICAL.  I AGREE WITH THE COURT THAT THE JURISDICTIONAL OBJECTION
AND THE CLAIMS OF COLLATERAL ESTOPPEL IN NO. 2 ARE WITHOUT MERIT, AND
THAT THE CONSTITUTIONAL VALIDITY OF BOTH STATUTES MUST THEREFORE BE
DETERMINED. 

FN2  356 U.S., AT 62 (DISSENTING OPINION). 

FN3  IN PEREZ V. BROWNELL, THE COURT POINTED OUT THAT THE PROVISION
OF THE FOURTEENTH AMENDMENT THAT "ALL PERSONS BORN OR NATURALIZED IN
THE UNITED STATES, AND SUBJECT TO THE JURISDICTION THEREOF, ARE
CITIZENS OF THE UNITED STATES  ...  " DOES NOT RESTRICT THE POWER OF
CONGRESS TO ENACT DENATURALIZATION LEGISLATION.  IT WAS THERE STATED
THAT "THERE IS NOTHING IN THE TERMS, THE CONTEXT, THE HISTORY OR THE
MANIFEST PURPOSE OF THE FOURTEENTH AMENDMENT TO WARRANT DRAWING FROM IT
A RESTRICTION UPON THE POWER OTHERWISE POSSESSED BY CONGRESS TO
WITHDRAW CITIZENSHIP."  356 U.S., AT 58, N. 3. 

FN4  ACT OF MARCH 3, 1865, SEC. 21, 13 STAT. 490. 

FN5  THIS LAW WAS THE DIRECT PREDECESSOR OF SEC. 401(G) OF THE
NATIONALITY ACT OF 1940, PROVIDING THE ADDITIONAL PENALTY OF LOSS OF
CITIZENSHIP UPON THOSE CONVICTED BY COURT-MARTIAL OF DESERTING THE
ARMED OFRCES IN TIME OF WAR (A PROVISION SUBSEQUENTLY INVALIDATED IN
TROP V. DULLES, 356 U.S. 86). 

FN6  356 U.S. 44 (INVOLVING SEC. 401(E)). 

FN7  356 U.S. 86 (INVOLVING SEC. 401(G)). 

FN8  SEE PEREZ V. BROWNELL, 356 U.S., AT 52-57; TROP V. DULLES, 356
U.S., AT 94-95; CODIFICATION OF THE NATIONALITY LAWS OF THE UNITED
STATES, H.R. COMM. PRINT, PT. 1, 76TH CONG., 1ST SESS. 68-69. 

FN9  S. REP. NO. 1075, 78TH CONG., 2D SESS. 2. 

FN10  THE HOUSE COMMITTEE REPORT DOES CONTAIN SOME PARTICULARIZATION
OF THE PROBLEM TO WHICH THE LEGISLATION WAS ADDRESSED:  "IT IS, OF
COURSE, NOT KNOWN HOW MANY CITIZENS OR ALIENS HAVE LEFT THE UNITED
STATES FOR THE PURPOSE OF EVADING MILITARY SERVICE.  THE DEPARTMENT OF
JUSTICE DISCOVERED THAT IN THE WESTERN DISTRICT OF TEXAS, IN THE
VICINITY OF EL PASO ALONE, THERE WERE OVER 800 DRAFT DELINQUENTS
RECORDED IN THE LOCAL FEDERAL BUREAU OF INVESTIGATION OFFICE, BORN IN
THIS COUNTRY AND, THEREFORE CITIZENS, WHO HAD CROSSED THE BORDER INTO
MEXICO FOR THE PURPOSE OF EVADING THE DRAFT, BUT WITH THE EXPECTATION
OF RETURNING TO THE UNITED STATES TO RESUME RESIDENCE AFTER THE WAR." 
H.R. REP. NO. 1229, 78TH CONG., 2D SESS. 1-2.  IN EXPLAINING THE BILL
TO THE HOUSE COMMITTEE OF THE WHOLE, REPRESENTATIVE DICKSTEIN, THE
CHAIRMAN OF THE HOUSE COMMITTEE ON IMMIGRATION, STATED: "I WOULD
CLASSIFY THIS PIECE OF LEGISLATION AS A BILL TO DENATURALIZE AND
DENATIONALIZE ALL DRAFT DODGERS WHO LEFT THIS COUNTRY KNOWING THAT
THERE WAS A POSSIBILITY THAT THEY MIGHT BE DRAFTED IN THIS WAR AND THAT
THEY MIGHT HAVE TO SERVE IN THE ARMED FORCES, IN THE NAVAL FORCES, OR
THE MARINES, AND IN AN EFFORT TO GET OUT OF SUCH SERVICE.  WE ARE ALL
AMERICAN CITIZENS AND OUR COUNTRY HAS A GREAT STAKE IN THIS WAR;
NEVERTHELESS, WE HAVE FOUND HUNDREDS OF MEN WHO HAVE LEFT THIS COUNTRY
TO GO TO CERTAIN PARTS OF MEXICO AND OTHER SOUTH AMERICAN COUNTRIES
WITH THE IDEA OF EVADING MILITARY SERVICE AND OF RETURNING AFTER THE
WAR IS OVER, AND TAKING THEIR OLD PLACES IN OUR SOCIETY."  90 CONG.
REC. 3261. 

IN EXPLAINING THE BILL TO THE SENATE, SENATOR RUSSELL, THE CHAIRMAN
OF THE SENATE COMMITTEE ON IMMIGRATION, STATED:  "THE  ...  BILL  ...
RELATES TO THE CLASS OF PERSONS, WHETHER CITIZENS OF THE UNITED STATES
OR ALIENS, WHO DEPARTED FROM THE UNITED STATES IN ORDER TO AVOID
SERVICE IN THE ARMED FORCES OF THE UNITED STATES UNDER THE SELECTIVE
SERVICE ACT.  INFORMATION BEFORE THE COMMITTEE INDICATED THAT ON ONE
DAY SEVERAL HUNDRED PERSONS DEPARTED FROM THE UNITED STATES THROUGH THE
CITY OF EL PASO, TEX., ALONE, IN ORDER TO AVOID SERVICE IN EITHER THE
ARMY OR THE NAVY OF THE UNITED STATES, AND TO AVOID SELECTION UNDER THE
SELECTIVE-SERVICE LAW.  THIS BILL PROVIDES THAT ANY PERSON WHO IS A
NATIONAL OF THE UNITED STATES, OR AN AMERICAN CITIZEN, AND WHO IN TIME
OF NATIONAL STRESS DEPARTED FROM THE UNITED STATES TO ANOTHER COUNTRY
TO AVOID SERVING HIS COUNTRY, SHALL BE DEPRIVED OF HIS NATIONALITY. 

"IT FURTHER PROVIDES THAT ANY ALIEN WHO IS SUBJECT TO MILITARY
SERVICE UNDER THE TERMS OF THE SELECTIVE SERVICE ACT, AND WHO LEFT THIS
COUNTRY TO AVOID MILITARY SERVICE, SHALL THEREAFTER BE FOREVER BARRED
FROM ADMISSION TO THE UNITED STATES. 

"MR. PRESIDENT, I DO NOT SEE HOW ANYONE COULD OBJECT TO SUCH A BILL. 
AN ALIEN WHO REMAINS IN THE COUNTRY AND REFUSES TO SERVE IN THE ARMED
FORCES IN TIME OF WAR IS PROSECUTED UNDER OUR LAWS, AND IF FOUND GUILTY
HE IS COMPELLED TO SERVE A TERM IN THE PENITENTIARY.  UNDER THE TERMS
OF THE SELECTIVE SERVICE ACT AN AMERICAN CITIZEN WHO REFUSES TO SERVE
WHEN HE IS CALLED UPON TO DO SO IS LIKEWISE SUBJECT TO A PRISON TERM. 
CERTAINLY THOSE WHO, HAVING ENJOYED THE ADVANTAGES OF LIVING IN THE
UNITED STATES, WERE UNWILLING TO SERVE THEIR COUNTRY OR SUBJECT
THEMSELVES TO THE SELECTIVE SERVICE ACT, SHOULD BE PENALIZED IN SOME
MEASURE.  THIS BILL WOULD DEPRIVE SUCH PERSONS AS ARE CITIZENS OF THE
UNITED STATES OF THEIR CITIZENSHIP, AND, IN THE CASE OF ALIENS, WOULD
FOREVER BAR THEM FROM ADMISSION INTO THE UNITED STATES.  ANY AMERICAN
CITIZEN WHO IS CONVICTED OF VIOLATING THE SELECTIVE SERVICE ACT LOSES
HIS CITIZENSHIP.  THIS BILL WOULD MERELY IMPOSE A SIMILAR PENALTY ON
THOSE WHO ARE NOT SUBJECT TO THE JURISDICTION OF OUR COURTS, THE
PENALTY BEING THE SAME AS WOULD RESULT IN THE CASE OF THOSE WHO ARE
SUBJECT TO THE JURISDICTION OF OUR COURTS."  90 CONG. REC. 7628-7629. 

FN11  SECTION 349(A)(10) DID ADD A PRESUMPTION THAT FAILURE TO COMPLY
WITH ANY PROVISION OF THE COMPULSORY SERVICE LAWS OF THE UNITED STATES
MEANS THAT THE DEPARTURE FROM OR ABSENCE FROM THE UNITED STATES IS FOR
THE PURPOSE OF AVOIDING MILITARY SERVICE.  SEE PP. 215-219, INFRA. 

FN12  TROP V. DULLES, 356 U.S., AT 94. 

FN13  I CANNOT SUPPOSE THAT THE COURT TODAY IS SAYING THAT CONGRESS
CAN IMPOSE DENATIONALIZATION WITHOUT THE SAFEGUARDS OF A CRIMINAL TRIAL
FOR CONDUCT WHICH IS UNEXCEPTIONABLE - LIKE MARRYING AN ALIEN - OR
RELATIVELY INNOCUOUS - LIKE VOTING IN A FOREIGN ELECTION - BUT THAT
CONGRESS CANNOT DO SO FOR CONDUCT WHICH IS REPREHENSIBLE. 

FN14  SEE III MOORE, DIGEST OF INTERNATIONAL LAW (1906), SECS. 434,
436-438, 440; TSIANG, THE QUESTION OF EXPATRIATION IN AMERICA PRIOR TO
1907 (1942), 44-55, 71-72, 78-84. 

FN15  "THE CONGRESS SHALL HAVE POWER  ...  . 

  *         *         *         *         * 

"TO DECLARE WAR, GRANT LETTERS OF MARQUE AND REPRISAL, AND MAKE RULES
CONCERNING CAPTURES ON LAND AND WATER: 

"TO RAISE AND SUPPORT ARMIES, BUT NO APPROPRIATION OF MONEY TO THAT
USE SHALL BE FOR A LONGER TERM THAN TWO YEARS: 

"TO PROVIDE AND MAINTAIN A NAVY: 

"TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND
NAVAL FORCES: 

     *         *         *         *         * 

"TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING
INTO EXECUTION THE FOREGOING POWERS, AND ALL OTHER POWERS VESTED BY
THIS CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES, OR IN ANY
DEPARTMENT OR OFFICER THEREOF."  ART. I, SEC. 8, CLS.  11, 12, 13, 14,
18. 

FN16  MCFARLAND V. AMERICAN SUGAR RFG.  CO., 241 U.S. 79, 86; WESTERN
& ATLANTIC R. CO. V. HENDERSON, 279 U.S. 639, 642; MORRISON V.
CALIFORNIA, 291 U.S. 82, 90.  SEE BAILEY V. ALABAMA, 219 U.S. 219, 239;
LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 81. 

FN17 THE UNITED STATES CONSUL SAID, "WITHOUT EVIDENCE TO THE
CONTRARY, THE CONSULAR OFFICER HAS NO REASON TO DOUBT DR. CORT'S
STATEMENTS MADE IN THE ATTACHED AFFIDAVIT WHICH PURPORTS TO ANSWER THE
CHARGE THAT HE DEPARTED FROM AND REMAINED OUTSIDE THE JURISDICTION OF
THE UNITED STATES FOR THE PURPOSE OF EVADING OR AVOIDING TRAINING AND
SERVICE IN THE ARMED FORCES OF THE UNITED STATES." 

FN18  NG FUNG HO V. WHITE, 259 U.S. 276; KESSLER V. STRECKER, 307
U.S. 22, 35; FRANK V. ROGERS, 102 U.S. APP. D.C. 367, 253 F.2D 889. 
..END :


















SIMLER V. CONNER 372 U.S. 221 


NO. 59.  ARGUED JANUARY 9-10, 1963.  - DECIDED FEBRUARY 18, 1963.  - 295
F.2D 534, REVERSED. 


1.  IN A DIVERSITY OF CITIZENSHIP ACTION IN A FEDERAL DISTRICT COURT,
FEDERAL LAW GOVERNS IN DETERMINING WHETHER THE PLAINTIFF IS ENTITLED TO
A JURY TRIAL.  P. 222. 

2.  ALTHOUGH THE ACTION IN THIS CASE WAS IN FORM A DECLARATORY
JUDGMENT ACTION, IT WAS IN BASIC CHARACTER A SUIT TO DETERMINE AND
ADJUDICATE THE AMOUNT OF FEES OWING TO A LAWYER BY A CLIENT UNDER A
CONTINGENT FEE CONTRACT; IT WAS "LEGAL," NOT "EQUITABLE," IN CHARACTER,
AND THE PLAINTIFF WAS ENTITLED TO A JURY TRIAL.  P. 223. 

SIMLER V. CONNER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PER CURIAM. 

THIS COURT GRANTED CERTIORARI, 368 U.S. 966, TO REVIEW THE DECISION
OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT, HOLDING THAT IN A
DIVERSITY ACTION IN THE FEDERAL DISTRICT COURT, STATE LAW, HERE THAT OF
OKLAHOMA, GOVERNS IN DETERMINING WHETHER AN ACTION IS "LEGAL" OR
"EQUITABLE" FOR THE PURPOSE OF DECIDING WHETHER A CLAIMANT HAS A RIGHT
TO A JURY TRIAL.  APPLYING OKLAHOMA LAW, THE COURT OF APPEALS DECIDED
THAT A JURY TRIAL, ALTHOUGH ASKED FOR BY PETITIONER, WAS NOT HERE
APPROPRIATE.  295 F.2D 534. 

IN THIS COURT RESPONDENT FRANKLY CONCEDES THAT, CONTRARY TO THE COURT
OF APPEALS HOLDING, FEDERAL LAW GOVERNS IN DETERMINING THE RIGHT TO A
JURY TRIAL IN THE FEDERAL COURTS.  RESPONDENT SEEKS TO SUSTAIN THE
RESULT REACHED BY THE COURT OF APPEALS, HOWEVER, ON THE TWIN GROUNDS
THAT, APPLYING FEDERAL LAW, NO JURY WAS REQUIRED IN THIS CASE BECAUSE
(1) THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT FOR RESPONDENT
UNDER RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE AND (2) THE
PRESENT ACTION IS "EQUITABLE" AND NOT "LEGAL" IN CHARACTER. 

WE AGREE WITH RESPONDENT THAT THE RIGHT TO A JURY TRIAL IN THE
FEDERAL COURTS IS TO BE DETERMINED AS A MATTER OF FEDERAL LAW IN
DIVERSITY AS WELL AS OTHER ACTIONS.  THE FEDERAL POLICY FAVORING JURY
TRIALS IS OF HISTORIC AND CONTINUING STRENGTH.  PARSONS V. BEDFORD, 3
PET. 433, 446-449; SCOTT V. NEELY, 140 U.S. 106; BYRD V. BLUE RIDGE
RURAL ELECTRIC COOPERATIVE, INC., 356 U.S. 525, 537-539; BEACON
THEATRES, INC., V. WESTOVER, 359 U.S. 500; DAIRY QUEEN, INC., V. WOOD,
369 U.S. 469.  ONLY THROUGH A HOLDING THAT THE JURY-TRIAL RIGHT IS TO
BE DETERMINED ACCORDING TO FEDERAL LAW CAN THE UNIFORMITY IN ITS
EXERCISE WHICH IS DEMANDED BY THE SEVENTH AMENDMENT* BE ACHIEVED.  IN
DIVERSITY CASES, OF COURSE, THE SUBSTANTIVE DIMENSION OF THE CLAIM
ASSERTED FINDS ITS SOURCE IN STATE LAW, ERIE R. CO. V. TOMPKINS, 304
U.S. 64; SEE CITIES SERVICE OIL CO. V. DUNLAP, 308 U.S. 208; PALMER V.
HOFFMAN, 318 U.S. 109, BUT THE CHARACTERIZATION OF THAT STATE-CREATED
CLAIM AS LEGAL OR EQUITABLE FOR PURPOSES OF WHETHER A RIGHT TO JURY
TRIAL IS INDICATED MUST BE MADE BY RECOURSE TO FEDERAL LAW. 

*"IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED
TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED, AND NO
FACT TRIED BY A JURY, SHALL BE OTHERWISE RE-EXAMINED IN ANY COURT OF
THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW." 
U.S. CONST., AMEND. VII. 

HOWEVER, WE DO NOT AGREE WITH RESPONDENT THAT IN THIS CASE A SUMMARY
JUDGMENT WAS WARRANTED OR THAT THIS IS AN "EQUITABLE" ACTION NOT
REQUIRING A JURY TRIAL. 

IN TWO APPEALS IN THIS CASE, THE COURT OF APPEALS HAS RULED THAT IN
VIEW OF CONFLICTING FACTS PRESENTED BY AFFIDAVITS AND DEPOSITIONS TO
THE DISTRICT COURT, SUMMARY JUDGMENT WAS NOT WARRANTED.  WE ACCEPT AND
DO NOT DISTURB THE RULING OF THE COURT OF APPEALS ON THIS PHASE OF THE
CASE SINCE IT HAS AMPLE SUPPORT IN THE RECORD. 

ON THE QUESTION WHETHER, AS A MATTER OF FEDERAL LAW, THE INSTANT
ACTION IS LEGAL OR EQUITABLE, WE CONCLUDE THAT IT IS "LEGAL" IN
CHARACTER.  THE RECORD DISCLOSES THAT THE CONTROVERSY BETWEEN
PETITIONER AND RESPONDENT IN SUBSTANCE INVOLVES THE AMOUNT OF FEES
PETITIONER, A CLIENT, IS OBLIGATED TO PAY RESPONDENT, HIS LAWYER. 
PETITIONER ADMITS HIS OBLIGATION TO PAY A "REASONABLE" FEE UNDER A
CONTINGENT FEE RETAINER CONTRACT STIPULATING THAT REASONABLENESS MAY BE
SET IN A COURT TRIAL.  RESPONDENT RELIES ON A SUBSEQUENT CONTRACT
SPECIFYING 50% OF THE RECOVERY, UNDER CERTAIN CIRCUMSTANCES, AS THE
AMOUNT OF THE FEE.  PETITIONER COUNTERS THAT THE LATTER CONTRACT IS THE
PRODUCT OF FRAUD AND OVERREACHING BY THE LAWYER. 

THE CASE WAS IN ITS BASIC CHARACTER A SUIT TO DETERMINE AND
ADJUDICATE THE AMOUNT OF FEES OWING TO A LAWYER BY A CLIENT UNDER A
CONTINGENT FEE RETAINER CONTRACT, A TRADITIONALLY "LEGAL" ACTION.  SEE
TRIST V. CHILD, 21 WALL.  441, 447; STANTON V. EMBREY, 93 U.S. 548. 
THE FACT THAT THE ACTION IS IN FORM A DECLARATORY JUDGMENT CASE SHOULD
NOT OBSCURE THE ESSENTIALLY LEGAL NATURE OF THE ACTION.  THE QUESTIONS
INVOLVED ARE TRADITIONAL COMMON-LAW ISSUES WHICH CAN BE AND SHOULD HAVE
BEEN SUBMITTED TO A JURY UNDER APPROPRIATE INSTRUCTIONS AS PETITIONER
REQUESTED. 

ACCORDINGLY, THE COURTS BELOW ERRED IN DENYING PETITIONER THE JURY
TRIAL GUARANTEED HIM BY THE SEVENTH AMENDMENT AND THE JUDGMENT IS
REVERSED.  REVERSED. 
..END :



















SCHNEIDER V. RUSK 372 U.S. 224 


NO. 251.  DECIDED FEBRUARY 18, 1963.  - JUDGMENT VACATED AND CASE
REMANDED TO DISTRICT COURT. 


PETITIONER SUED IN A FEDERAL DISTRICT COURT FOR AN INJUNCTION
RESTRAINING ENFORCEMENT OF SEC. 352(A)(1) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, WHICH PROVIDES THAT A NATURALIZED AMERICAN
CITIZEN SHALL LOSE HIS NATIONALITY BY "HAVING A CONTINUOUS RESIDENCE
FOR THREE YEARS IN THE TERRITORY OF A FOREIGN STATE OF WHICH HE WAS
FORMERLY A NATIONAL OR IN WHICH THE PLACE OF HIS BIRTH IS SITUATED  ...
."  A SINGLE-JUDGE DISTRICT COURT REFUSED PETITIONER'S REQUEST TO
CONVENE A THREE-JUDGE COURT PURSUANT TO 28 U.S.C. SEC.  2282 AND
DISMISSED THE ACTION.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE
CONSTITUTIONAL QUESTION RAISED BY PETITIONER'S COMPLAINT WAS NOT
PLAINLY INSUBSTANTIAL; THE SINGLE-JUDGE DISTRICT COURT WAS POWERLESS TO
DISMISS THE ACTION ON THE MERITS; AND A THREE-JUDGE DISTRICT COURT
SHOULD HAVE BEEN CONVENED.  PP. 224-225. 

SCHNEIDER V. RUSK, SECRETARY OF STATE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

TRIAL OF THIS CASE SHOULD HAVE BEEN BEFORE A THREE-JUDGE DISTRICT
COURT CONVENED PURSUANT TO 28 U.S.C. SECS. 2282, 2284, AS PETITIONER
REQUESTED.  HER COMPLAINT EXPLICITLY SOUGHT AN "INJUNCTION RESTRAINING
THE ENFORCEMENT, OPERATION OR EXECUTION OF  ...  AN ACT OF CONGRESS" -
SEC. 352(A)(1) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 8 U.S.C.
SEC. 1484(A)(1), WHICH PROVIDES THAT A NATURALIZED AMERICAN CITIZEN
SHALL LOSE HIS NATIONALITY BY "HAVING A CONTINUOUS RESIDENCE FOR THREE
YEARS IN THE TERRITORY OF A FOREIGN STATE OF WHICH HE WAS FORMERLY A
NATIONAL OR IN WHICH THE PLACE OF HIS BIRTH IS SITUATED  ...  ."  THE
DISTRICT COURT CONCLUDED THAT PETITIONER'S COMPLAINT PRESENTED NO
SUBSTANTIAL CONSTITUTIONAL ISSUE AND DENIED PETITIONER'S MOTION TO
CONVENE A THREE-JUDGE COURT, RELYING ON LAPIDES V. CLARK, 85 U.S. APP.
D.C. 101, 176 F.2D 619 (1949), CERT. DENIED, 338 U.S. 860, IN WHICH THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT HAD DIRECTLY
UPHELD THE PREDECESSOR OF A COMPANION PROVISION, SEC. 352(A)(2) OF THE
1952 ACT, 8 U.S.C. SEC. 1484(A)(2), WHICH DEPRIVED THE NATURALIZED
AMERICAN OF HIS CITIZENSHIP FOR RESIDING FOR FIVE YEARS IN ANY FOREIGN
STATE.  THE COURT OF APPEALS' PER CURIAM AFFIRMANCE WAS ALSO BASED ON
LAPIDES.  ALTHOUGH NO VIEW IS HERE INTIMATED AS TO THE MERITS OF THE
CONSTITUTIONAL QUESTION IN THE PRESENT CASE, WE DISAGREE WITH THE
CONCLUSION OF THE COURTS BELOW AS TO THE SUBSTANTIALITY OF THAT ISSUE. 
THE INTERVENING DECISIONS OF THIS COURT IN PEREZ V. BROWNELL, 356 U.S.
44, AND TROP V. DULLES, 356 U.S.  86, REVEAL THAT THE CONSTITUTIONAL
QUESTIONS INVOLVING DEPRIVATION OF NATIONALITY WHICH WERE PRESENTED TO
THE DISTRICT JUDGE WERE NOT PLAINLY INSUBSTANTIAL.  THE SINGLE-JUDGE
DISTRICT COURT WAS THEREFORE POWERLESS TO DISMISS THE ACTION ON THE
MERITS, AND SHOULD HAVE CONVENED A THREE-JUDGE COURT.  EX PARTE
NORTHERN PAC. R. CO., 280 U.S. 142, 144; STRATTON V. ST. LOUIS S.W.R.
CO., 282 U.S. 10, 15; EX PARTE PORESKY, 290 U.S. 30; IDLEWILD BON
VOYAGE LIQUOR CORP. V. EPSTEIN, 370 U.S. 713.  THE JUDGMENTS BELOW ARE
VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR EXPEDITIOUS
ACTION CONSISTENT WITH THE VIEWS HERE EXPRESSED.  SO ORDERED. 
..END :















RUDNICKI V. COX 372 U.S. 226 


NO. 706.  DECIDED FEBRUARY 18, 1963. 


RUDNICKI V. COX ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY V. CITY AND COUNTY OF
DENVER 372 U.S. 226 


NO. 635.  DECIDED FEBRUARY 18, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  150 COLO. - , 372
P.2D 152. 


BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, COLORADO, ET AL. V.
CITY AND COUNTY OF DENVER, COLORADO, ET AL. 

APPEAL FROM THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











CHUPKA V. LORENZ-SCHNEIDER CO. 372 U.S. 227 


NO. 650.  DECIDED FEBRUARY 18, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  12 N.Y.2D 1, 186
N.E.2D 191. 


CHUPKA ET AL. V. LORENZ-SCHNEIDER CO., INC., ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















KING COUNTY V. F.L. HARTUNG GLASS CO., INC. 372 U.S. 227 


NO. 647.  DECIDED FEBRUARY 18, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  60 WASH. 2D 392, 374 P.2D 174. 


KING COUNTY ET AL. V. F.L. HARTUNG GLASS CO., INC. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SHELDON V. FANNIN 372 U.S. 228 


NO. 656.  DECIDED FEBRUARY 18, 1963.  - APPEAL DISMISSED.  - REPORTED
BELOW:  214 F. SUPP.  940. 


SHELDON ET AL. V. FANNIN ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
ARIZONA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :

















LOCAL NO. 438 CONSTRUCTION & GENERAL LABORERS' UNION, AFL-CIO V. CURRY
DBA S.J. CURRY & CO. 371 U.S. 542 


NO. 87.  ARGUED NOVEMBER 7-8, 1962.  - DECIDED JANUARY 21, 1963.  - 217
GA. 512, 123 S.E.2D 653, REVERSED. 


RESPONDENTS SUED IN A GEORGIA STATE COURT TO ENJOIN A LABOR UNION FROM
PICKETING THE SITE WHERE THEY WERE ENGAGED IN CONSTRUCTION WORK.  THEY
ALLEGED THAT THE PICKETING WAS FOR THE PURPOSE OF FORCING THEM TO HIRE
ONLY UNION LABOR AND THAT IT VIOLATED THE GEORGIA RIGHT-TO-WORK
STATUTE.  THE UNION CONTENDED THAT ITS PICKETING WAS FOR THE SOLE
PURPOSE OF PUBLICIZING THE FACTS ABOUT THE WAGES PAID BY RESPONDENTS
AND THAT ITS ACTIVITIES WERE WITHIN THE EXCLUSIVE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD.  IT WAS STIPULATED THAT RESPONDENTS HAD
PURCHASED MORE THAN $50,000 WORTH OF GOODS AND COMMODITIES FROM OUTSIDE
OF GEORGIA.  THE TRIAL COURT DENIED A TEMPORARY INJUNCTION.  THE
GEORGIA SUPREME COURT FOUND THAT THE PICKETING WAS PEACEFUL AND THAT
THE EVIDENCE WAS SUFFICIENT TO SUSTAIN A FINDING THAT RESPONDENTS WERE
NOT PAYING WAGES CONFORMING WITH THOSE PAID ON SIMILAR TYPES OF WORK IN
THE AREA, AS REQUIRED BY THEIR CONTRACT; BUT IT CONCLUDED THAT THE
PICKETING WAS FOR THE PURPOSE OF FORCING RESPONDENTS TO EMPLOY ONLY
UNION LABOR AND THAT, THEREFORE, IT VIOLATED THE GEORGIA STATUTE.  IT
HELD THAT THE TRIAL COURT HAD ERRED IN DENYING A TEMPORARY INJUNCTION. 
THIS COURT GRANTED CERTIORARI.  HELD: 

1.  THE ALLEGATIONS OF THE COMPLAINT, AS WELL AS THE FINDINGS OF THE
GEORGIA SUPREME COURT, MADE OUT AT LEAST AN ARGUABLE VIOLATION OF SEC.
8(B) OF THE NATIONAL LABOR RELATIONS ACT, AND THE STATE COURT HAD NO
JURISDICTION TO ISSUE AN INJUNCTION OR TO ADJUDICATE THIS CONTROVERSY,
WHICH WAS WITHIN THE EXCLUSIVE JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD.  PP. 543-548. 

2.  THE JUDGMENT OF THE SUPREME COURT OF GEORGIA WAS "FINAL," WITHIN
THE MEANING OF 28 U.S.C. SEC. 1257, AND THIS COURT HAS JURISDICTION TO
REVIEW IT.  PP. 548-552. 

(A)  THE JUDGMENT FALLS WITHIN THAT SMALL CLASS WHICH FINALLY
DETERMINES CLAIMS OF RIGHT SEPARABLE FROM, AND COLLATERAL TO, RIGHTS
ASSERTED IN THE MAIN ACTION, CLAIMS WHICH ARE TOO IMPORTANT TO BE
DENIED REVIEW AND TOO INDEPENDENT OF THE CAUSE ITSELF TO REQUIRE THAT
APPELLATE CONSIDERATION BE DEFERRED UNTIL THE WHOLE CASE IS
ADJUDICATED.  COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541.  PP. 548
549. 

(B)  THE POLICY OF 28 U.S.C. SEC. 1257 AGAINST PIECEMEAL REVIEWS OF
STATE COURT JUDGMENTS DOES NOT PREVENT THIS COURT HOLDING THAT THE
JUDGMENT WAS FINAL, PARTICULARLY WHEN POSTPONING REVIEW WOULD SERIOUSLY
ERODE THE NATIONAL LABOR POLICY REQUIRING THE SUBJECT MATTER OF
RESPONDENTS' CAUSE TO BE HEARD EXCLUSIVELY BY THE NATIONAL LABOR
RELATIONS BOARD, NOT BY STATE COURTS.  PP.  549-550. 

(C)  SINCE THE GEORGIA SUPREME COURT RESOLVED THE MERITS OF THE
ISSUES RAISED IN THE COURSE OF THE HEARING ON THE TEMPORARY INJUNCTION
AND LEFT NOTHING OF SUBSTANCE TO BE DECIDED IN THE TRIAL COURT, AS
PETITIONER CONCEDED, ITS JUDGMENT WAS "FINAL" WITHIN THE MEANING OF 28
U.S.C.  SEC. 1257.  PP. 550-551. 

(D)  MONTGOMERY BUILDING TRADES COUNCIL V. LEDBETTER ERECTION CO.,
344 U.S. 178, DOES NOT REQUIRE A DIFFERENT CONCLUSION.  P. 552. 

LOCAL NO. 438 CONSTRUCTION & GENERAL LABORERS' UNION, AFL-CIO, V. CURRY
ET AL., DOING BUSINESS AS S.J. CURRY & CO. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

IN THE FACE OF PETITIONER'S CLAIM THAT THE SUBJECT MATTER OF THIS
SUIT WAS WITHIN THE EXCLUSIVE JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD, THE SUPREME COURT OF GEORGIA REVERSED THE DENIAL BY
THE TRIAL COURT OF A TEMPORARY INJUNCTION SOUGHT BY RESPONDENTS.  217
GA. 512, 123 S.E.2D 653.  WE GRANTED CERTIORARI TO CONSIDER THE
JURISDICTION OF THE GEORGIA COURT TO AUTHORIZE THE ENTRY OF AN
INJUNCTION AND REQUESTED THE PARTIES TO BRIEF ALSO THE QUESTION OF OUR
OWN JURISDICTION TO REVIEW THE GEORGIA COURT'S JUDGMENT UNDER 28 U.S.C.
SEC. 1257.  369 U.S. 883. 

RESPONDENTS, PARTNERS IN THE CONTRACTING BUSINESS, ENTERED INTO A
CONSTRUCTION CONTRACT WITH THE CITY OF ATLANTA REQUIRING THAT WAGES
PAID BY RESPONDENTS "CONFORM WITH THOSE BEING PAID ON SIMILAR TYPES OF
WORK IN THE ATLANTA AREA."  SHORTLY AFTER THE BEGINNING OF
CONSTRUCTION, VARIOUS UNIONS IN THE ATLANTA AREA VISITED RESPONDENTS,
WHOSE PRACTICE IT WAS TO HIRE WITHOUT REGARD TO UNION MEMBERSHIP AND
WHOSE EMPLOYEES WERE NOT REPRESENTED BY A UNION.  ACCORDING TO
RESPONDENTS THE UNIONS STRONGLY URGED THE HIRING OF UNION LABOR,
WHEREAS THE UNIONS RECALLED ONLY THEIR REQUEST FOR RESPONDENTS TO RAISE
THEIR PAY SCALES TO THOSE PREVAILING IN THE AREA.  SOME MONTHS LATER,
FOLLOWING UNSUCCESSFUL EFFORTS BY THE UNIONS TO HAVE THE CITY OF
ATLANTA PERSUADE RESPONDENTS TO PAY HIGHER WAGES, PETITIONER PLACED A
SINGLE PICKET AT THE CONSTRUCTION SITE.  THEREUPON EMPLOYEES OF OTHER
CONTRACTORS NOT UNDER RESPONDENTS' SUPERVISION REFUSED TO WORK AND
RESPONDENTS EXPERIENCED DIFFICULTY IN HAVING MATERIALS AND SUPPLIES
DELIVERED.  CONSTRUCTION SLOWED, RESPONDENTS LAID OFF ALL BUT 37 OF THE
72 MEN WORKING FOR THEM, AND THEIR ABILITY TO FINISH THE JOB WITHIN THE
TIME PROVIDED IN THE CONTRACT WAS JEOPARDIZED. 

RESPONDENTS THEN BROUGHT THIS ACTION FOR AN INJUNCTION IN THE
SUPERIOR COURT OF FULTON COUNTY, GEORGIA, ALLEGING THAT PETITIONER'S
PICKETING WAS FOR THE PURPOSE OF FORCING RESPONDENTS TO HIRE ONLY UNION
LABOR, ALL IN VIOLATION OF THE GEORGIA RIGHT-TO-WORK STATUTE.  (FN1)  A
HEARING UPON RESPONDENTS' REQUEST FOR A TEMPORARY INJUNCTION WAS HELD. 
ACCORDING TO THE UNION ITS PICKETING WAS FOR THE SOLE PURPOSE OF
PUBLICIZING THE FACTS ABOUT THE WAGES BEING PAID BY RESPONDENTS, AND IN
ANY EVENT ITS ACTIVITIES WERE CLAIMED TO BE WITHIN THE EXCLUSIVE
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD.  IT WAS STIPULATED
THAT RESPONDENTS HAD PURCHASED MORE THAN $50,000 WORTH OF GOODS AND
COMMODITIES FROM OUTSIDE THE STATE OF GEORGIA.  (FN2)  THE TEMPORARY
INJUNCTION WAS DENIED WITHOUT OPINION AND RESPONDENTS APPEALED.  THE
GEORGIA SUPREME COURT FOUND THE PICKETING TO BE PEACEFUL AND THE
EVIDENCE SUFFICIENT TO SUSTAIN A FINDING THAT RESPONDENTS WERE NOT
PAYING WAGES CONFORMING WITH THOSE PAID ON SIMILAR TYPES OF WORK IN THE
ATLANTA AREA.  RELYING UPON AND QUOTING FROM AN EARLIER CASE, THE COURT
NEVERTHELESS CONCLUDED ON THE WHOLE RECORD THAT THE PICKET WAS PLACED
ON THE JOB FOR THE PURPOSE OF FORCING THE EMPLOYER "TO EMPLOY ONLY
UNION LABOR, OR BE UNABLE TO COMPLY WITH THE TERMS OF HIS CONTRACT  ...
SUCH PICKETING IS FOR AN UNLAWFUL PURPOSE, AND CLEARLY A VIOLATION OF
THE PROVISIONS OF CODE ANN.  SUPP. SEC. 54-804  ...  ."  (FN3)  THE
JUDGMENT OF THE COURT WAS THAT "THE TRIAL JUDGE ERRED IN REFUSING THE
INTERLOCUTORY INJUNCTION," THIS JUDGMENT LATER BEING ENTERED UPON THE
MINUTES OF THE TRIAL COURT AND MADE THE JUDGMENT OF THAT COURT. 

UPON SUCH A RECORD, WE HOLD THAT THIS COURT HAS APPELLATE
JURISDICTION UNDER SEC. 1257 AND WE REVERSE THE JUDGMENT BELOW AS
BEYOND THE POWER OF THE GEORGIA COURTS.  THE ALLEGATIONS OF THE
COMPLAINT, AS WELL AS THE FINDINGS OF THE GEORGIA SUPREME COURT, MADE
OUT AT LEAST AN ARGUABLE VIOLATION OF SEC. 8(B) OF THE NATIONAL LABOR
RELATIONS ACT, 29 U.S.C. SEC.  158(B).  (FN4) CONSEQUENTLY, THE STATE
COURT HAD NO JURISDICTION TO ISSUE AN INJUNCTION OR TO ADJUDICATE THIS
CONTROVERSY, WHICH LAY WITHIN THE EXCLUSIVE POWERS OF THE NATIONAL
LABOR RELATIONS BOARD.  PLUMBERS UNION V. DOOR COUNTY, 359 U.S. 354,
359; SAN DIEGO COUNCIL V. GARMON, 359 U.S. 236, 244-245; HOTEL
EMPLOYEES UNION V. SAX ENTERPRISES, INC., 358 U.S. 270; WEBER V.
ANHEUSER-BUSCH, INC., 348 U.S. 468, 478, 481; GARNER V. TEAMSTERS
UNION, 346 U.S. 485, 489-491.  NOR IS THE JURISDICTION OF THE GEORGIA
COURTS SUSTAINABLE, AS RESPONDENTS URGE, BY REASON OF THE GEORGIA RIGHT
TO-WORK LAW AND BY SEC. 14(B) OF THE NATIONAL LABOR RELATIONS ACT, 29
U.S.C. SEC. 164(B).  THIS PRECISE CONTENTION HAS BEEN PREVIOUSLY
CONSIDERED AND REJECTED BY THIS COURT.  LOCAL UNION 429 V. FARNSWORTH &
CHAMBERS CO., 353 U.S. 969, REVERSING 201 TENN. 329, 299 S.W.2D 8.  THE
GEORGIA SUPREME COURT CLEARLY EXCEEDED ITS POWER IN AUTHORIZING THE
ISSUANCE OF A TEMPORARY INJUNCTION. 

RESPONDENTS WOULD NEVERTHELESS HAVE US DISMISS THIS CASE AS BEYOND
OUR APPELLATE JURISDICTION SINCE 28 U.S.C. SEC. 1257 LIMITS OUR
AUTHORITY TO THE REVIEW OF FINAL JUDGMENTS OF STATE COURTS AND SINCE
THE GEORGIA SUPREME COURT AUTHORIZED THE ISSUANCE OF ONLY A TEMPORARY
INJUNCTION, THUS LEAVING A PERMANENT ORDER STILL TO BE ISSUED AFTER
FURTHER HEARINGS IN THE TRIAL COURT.  BUT WE BELIEVE OUR POWER TO
REVIEW THIS CASE RESTS UPON SOLID GROUND.  THE FEDERAL QUESTION RAISED
BY PETITIONER IN THE GEORGIA COURT, AND HERE, IS WHETHER THE GEORGIA
COURTS HAD POWER TO PROCEED WITH AND DETERMINE THIS CONTROVERSY.  THE
ISSUE RIPE FOR REVIEW IS NOT WHETHER A GEORGIA COURT HAS ERRONEOUSLY
DECIDED A MATTER OF FEDERAL LAW IN A CASE ADMITTEDLY WITHIN ITS
JURISDICTION (COMPARE GIBBONS V. OGDEN, 6 WHEAT.  448) NOR IS IT THE
QUESTION OF WHETHER FEDERAL OR STATE LAW GOVERNS A CASE PROPERLY BEFORE
THE GEORGIA COURTS.  COMPARE LOCAL 174 V. LUCAS FLOUR CO., 369 U.S.
95.  WHAT WE DO HAVE HERE IS A JUDGMENT OF THE GEORGIA COURT FINALLY
AND ERRONEOUSLY ASSERTING ITS JURISDICTION TO DEAL WITH A CONTROVERSY
WHICH IS BEYOND ITS POWER AND INSTEAD IS WITHIN THE EXCLUSIVE DOMAIN OF
THE NATIONAL LABOR RELATIONS BOARD. 

WHETHER OR NOT THE GEORGIA COURTS HAVE POWER TO ISSUE AN INJUNCTION
IS A MATTER WHOLLY SEPARATE FROM AND INDEPENDENT OF THE MERITS OF
RESPONDENTS' CAUSE.  THE ISSUE ON THE MERITS, NAMELY THE LEGALITY OF
THE UNION'S PICKETING, IS A MATTER ENTIRELY APART FROM THE
DETERMINATION OF WHETHER THE GEORGIA COURT OR THE NATIONAL LABOR
RELATIONS BOARD SHOULD CONDUCT THE TRIAL OF THE ISSUE. 

THE JURISDICTIONAL DETERMINATION HERE IS AS FINAL AND REVIEWABLE AS
WAS THE DISTRICT COURT'S DECISION IN COHEN V. BENEFICIAL LOAN CORP.,
337 U.S. 541, EXEMPTING PLAINTIFFS IN A STOCKHOLDER'S SUIT FILED IN A
FEDERAL COURT FROM FILING A BOND PURSUANT TO A STATE STATUTE.  THAT
RULING WAS HELD A FINAL JUDGMENT UNDER 28 U.S.C. SEC. 1291 EVEN THOUGH
THE TRIAL IN THE CASE WAS STILL TO TAKE PLACE.  THE JUDGMENT BEFORE US
NOW, LIKE THE JUDGMENT IN COHEN, FALLS "IN THAT SMALL CLASS WHICH
FINALLY DETERMINE CLAIMS OF RIGHT SEPARABLE FROM, AND COLLATERAL TO,
RIGHTS ASSERTED IN THE ACTION, TOO IMPORTANT TO BE DENIED REVIEW AND
TOO INDEPENDENT OF THE CAUSE ITSELF TO REQUIRE THAT APPELLATE
CONSIDERATION BE DEFERRED UNTIL THE WHOLE CASE IS ADJUDICATED.  THE
COURT HAS LONG GIVEN THIS PROVISION OF THE STATUTE THIS PRACTICAL
RATHER THAN A TECHNICAL CONSTRUCTION."  ID., AT 546.  AND IN RADIO
STATION WOW V. JOHNSON, 326 U.S. 120, THE AUTHORITY OF THE NEBRASKA
COURTS TO AWARD RELIEF ASSERTEDLY WITHIN THE EXCLUSIVE POWER OF THE
FEDERAL COMMUNICATIONS COMMISSION WAS HELD SEPARABLE FROM THE
ACCOUNTING WHICH WAS STILL TO TAKE PLACE IN THE STATE COURTS.  (FN5)
"IN EFFECT, SUCH A CONTROVERSY IS A MULTIPLE LITIGATION ALLOWING REVIEW
OF THE ADJUDICATION WHICH IS CONCLUDED BECAUSE IT IS INDEPENDENT OF,
AND UNAFFECTED BY, ANOTHER LITIGATION WITH WHICH IT HAPPENS TO BE
ENTANGLED."  ID., AT 126.  (FN6) 

THERE IS NO DOUBT THAT THE JURISDICTION OF THE GEORGIA COURTS HAS
BEEN FINALLY DETERMINED BY THE JUDGMENT BELOW AND IS NOT SUBJECT TO
FURTHER REVIEW IN THE STATE COURTS.  LANKFORD V. MILHOLLIN, 201 GA.
594, 599, 40 S.E.2D 376, 379; SMOOT V. ALEXANDER, 192 GA. 684, 686, 16
S.E.2D 544, 545; DIXON V. FEDERAL FARM MTG.  CORP., 187 GA. 660, 661, 1
S.E.2D 732, 733; BLACKWELL V. SOUTHLAND BUTANE CO., 95 GA. APP. 113,
115, 97 S.E.2D 191, 192.  UNLESS THIS JUDGMENT IS REVIEWABLE NOW,
PETITIONER WILL INEVITABLY REMAIN SUBJECT TO THE ISSUANCE OF A
TEMPORARY INJUNCTION AT THE REQUEST OF THE RESPONDENTS AND MUST FACE
FURTHER PROCEEDINGS IN THE STATE COURTS WHICH THE STATE COURTS HAVE NO
POWER TO CONDUCT.  IF THE PERMANENT INJUNCTION ISSUES, PETITIONER COULD
THEN COME HERE SEEKING THE DOUBTFUL PRIVILEGE OF RELITIGATING THE
ENTIRE MATTER BEFORE THE NATIONAL LABOR RELATIONS BOARD.  THE TRUTH IS
THAT AUTHORIZING THE ISSUANCE OF A TEMPORARY INJUNCTION, AS IS
FREQUENTLY TRUE OF TEMPORARY INJUNCTIONS IN LABOR DISPUTES, MAY
EFFECTIVELY DISPOSE OF PETITIONER'S RIGHTS AND RENDER ENTIRELY ILLUSORY
HIS RIGHT TO REVIEW HERE AS WELL AS HIS RIGHT TO A HEARING BEFORE THE
LABOR BOARD.  THE POLICY OF 28 U.S.C. SEC. 1257 AGAINST FRAGMENTING AND
PROLONGING LITIGATION AND AGAINST PIECEMEAL REVIEWS OF STATE COURT
JUDGMENTS DOES NOT PROHIBIT OUR HOLDING THE DECISION OF THE GEORGIA
SUPREME COURT TO BE A FINAL JUDGMENT, PARTICULARLY WHEN POSTPONING
REVIEW WOULD SERIOUSLY ERODE THE NATIONAL LABOR POLICY REQUIRING THE
SUBJECT MATTER OF RESPONDENTS' CAUSE TO BE HEARD BY THE NATIONAL LABOR
RELATIONS BOARD, NOT BY THE STATE COURTS. 

THERE IS ANOTHER ENTIRELY ADEQUATE REASON FOR SUSTAINING OUR
AUTHORITY TO REVIEW IN THIS CASE.  IN POPE V. ATLANTIC COAST LINE R.
CO., 345 U.S. 379, 382, THE GEORGIA SUPREME COURT REVERSED THE ORDER OF
A TRIAL COURT SUSTAINING A GENERAL DEMURRER TO A SUIT TO ENJOIN AN
EMPLOYEE FROM PROSECUTING A SUIT AGAINST HIS EMPLOYER IN THE ALABAMA
COURTS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  THE DEMURRER HAD
RAISED THE PROVISIONS OF THE FEDERAL STATUTE AS A BAR TO THE POWER OF
THE GEORGIA COURTS TO ISSUE THE INJUNCTION.  THE GEORGIA COURT'S DENIAL
OF THIS FEDERAL CLAIM WAS HELD REVIEWABLE HERE ALTHOUGH ORDINARILY THE
OVERRULING OF A DEMURRER IS NOT A FINAL JUDGMENT.  THIS COURT LOOKED TO
THE WHOLE RECORD, AS WE ARE ENTITLED TO DO IN DETERMINING QUESTIONS OF
FINALITY, DEPARTMENT OF BANKING V. PINK, 317 U.S. 264, 268; GOSPEL ARMY
V. LOS ANGELES, 331 U.S. 543, 547; RICHFIELD OIL CORP. V. STATE BOARD
OF EQUALIZATION, 329 U.S. 69, 72, AND CONCLUDED THAT FOR ALL PRACTICAL
PURPOSES THE LITIGATION IN THE GEORGIA COURTS WAS TERMINATED, SINCE THE
EMPLOYEE FREELY CONCEDED HE HAD NO FURTHER DEFENSES TO OFFER IN THE
STATE COURTS, RELYING UPON RICHFIELD OIL CORP. V. STATE BOARD OF
EQUALIZATION, 329 U.S. 69. 

WE HAVE A QUITE SIMILAR SITUATION HERE.  THE GEORGIA SUPREME COURT
NOT ONLY FINALLY ASSERTED ITS POWER TO DEAL WITH THE SUBJECT MATTER OF
THIS SUIT, BUT IT ALSO RESOLVED THE MERTIS OF THE ISSUES RAISED IN THE
COURSE OF THE HEARING UPON THE TEMPORARY INJUNCTION.  PETITIONER'S
CONDUCT WAS ADJUDGED TO BE IN VIOLATION OF THE GEORGIA RIGHT-TO-WORK
LAW AND AN INJUNCTION WAS AUTHORIZED.  PETITIONER CONCEDED BEFORE THIS
COURT THAT HE HAD NO FURTHER FACTUAL OR LEGAL ISSUES TO PRESENT TO THE
GEORGIA TRIAL COURT AND RESPONDENT DOES NOT SUGGEST THAT THE MATTERS
ADJUDICATED BY THE GEORGIA SUPREME COURT ARE NOT FINAL AND CONCLUSIVE
UPON PETITIONER AND THE LOWER COURT.  (FN7)  SINCE THERE WAS NOTHING
MORE OF SUBSTANCE TO BE DECIDED IN THE TRIAL COURT, THE JUDGMENT BELOW
WAS FINAL WITHIN THE MEANING OF 28 U.S.C. SEC. 1257 AND WITHIN THE
SCOPE OF THE POPE AND RICHFIELD CASES.  CF. CLARK V. WILLIARD, 292 U.S.
112.  (FN8) 

THERE REMAINS THE MATTER OF MONTGOMERY BUILDING & CONSTRUCTION TRADES
COUNCIL V. LEDBETTER ERECTION CO., INC., 344 U.S. 178, WHERE THE COURT
APPLIED THE SALUTARY AND LONG-STANDING RULE THAT DECISIONS UPON
INTERLOCUTORY INJUNCTIONS ARE NOT FINAL JUDGMENTS.  LEDBETTER, OF
COURSE, WAS DECIDED BEFORE GARNER V. TEAMSTERS UNION, 346 U.S. 485, AND
SUBSEQUENT PRE-EMPTION CASES (FN9) IN THIS COURT, AND AT A TIME WHEN
THE RESPECTIVE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD AND
THE STATE COURTS WAS A MUCH MOOTED ISSUE.  MOREOVER, THE ALABAMA COURT
DID NOT PASS UPON THE MERITS OF THE INJUNCTION CLAIM, THE UNION THERE
HAD WITHDRAWN AN ANSWER WHICH CONTROVERTED IMPORTANT ALLEGATIONS OF THE
COMPLAINT, AND IT WAS NOT AT ALL CLEAR THAT THERE WAS NOTHING LEFT TO
BE LITIGATED IN THE ALABAMA TRIAL COURT.  THIS COURT APPARENTLY
PREFERRED TO AVOID DECIDING THIS IMPORTANT MATTER OF FEDERAL AND STATE
RELATIONSHIPS WHERE THE DECISION BELOW DID NOT HAVE ALL OF THE
TRADITIONAL BADGES OF FINALITY.  CF. REPUBLIC NATURAL GAS CO. V.
OKLAHOMA, 334 U.S. 62.  IN ANY EVENT, HOWEVER, TO THE EXTENT THAT
LEDBETTER MAY BE SAID TO PROHIBIT OUR REVIEW OF A FINAL AND ERRONEOUS
ASSERTION OF JURISDICTION BY A STATE COURT TO ISSUE A TEMPORARY
INJUNCTION IN A LABOR DISPUTE, WHEN A SUBSTANTIAL CLAIM IS MADE THAT
THE JURISDICTION OF THE STATE COURT IS PRE-EMPTED BY FEDERAL LAW AND BY
THE EXCLUSIVE POWER OF THE NATIONAL LABOR RELATIONS BOARD, WE DECLINE
TO FOLLOW IT.    THE JUDGMENT IS REVERSED. 

FN1  THE GEORGIA RIGHT-TO-WORK LAW, GA. CODE, SEC. 54-804, PROVIDES: 

"COMPELLING PERSONS TO JOIN, OR REFRAIN FROM JOINING, LABOR
ORGANIZATION, OR TO STRIKE OR REFRAIN FROM STRIKING.  - IT SHALL BE
UNLAWFUL FOR ANY PERSON, ACTING ALONE OR IN CONCERT WITH ONE OR MORE
OTHER PERSONS TO COMPEL OR ATTEMPT TO COMPEL ANY PERSON TO JOIN OR
REFRAIN FROM JOINING ANY LABOR ORGANIZATION, OR TO STRIKE OR REFRAIN
FROM STRIKING AGAINST HIS WILL, BY ANY THREATENED OR ACTUAL
INTERFERENCE WITH HIS PERSON, IMMEDIATE FAMILY, OR PHYSICAL PROPERTY,
OR BY ANY THREATENED OR ACTUAL INTEREFERENCE WITH THE PURSUIT OF LAWFUL
EMPLOYMENT BY SUCH PERSON, OR BY HIS IMMEDIATE FAMILY." 

THE GEORGIA SUPREME COURT ALSO REFERRED TO GA. CODE, SEC. 66-9906,
WHICH PROVIDES: 

"UNLAWFULLY PREVENTING LABORERS, ETC., FROM PERFORMING DUTIES.  ANY
PERSON OR PERSONS, WHO, BY THREATS, VIOLENCE, INTIMIDATION, OR OTHER
UNLAWFUL MEANS, SHALL PREVENT OR ATTEMPT TO PREVENT ANY PERSON OR
PERSONS FROM ENGAGING IN, REMAINING IN, OR PERFORMING THE BUSINESS,
LABOR, OR DUTIES OF ANY LAWFUL EMPLOYMENT OR OCCUPATION, SHALL BE
GUILTY OF A MISDEMEANOR." 

FN2  ALTHOUGH RESPONDENTS POINT OUT THAT THERE HAS BEEN NO JUDICIAL
DETERMINATION OF EFFECT ON INTERSTATE COMMERCE, WE DO NOT UNDERSTAND
THAT THEY QUESTION THE ACCURACY OR VALIDITY OF THE STIPULATION OR THAT
THEIR PURCHASES FROM OUTSIDE GEORGIA MEET THE DIRECT INFLOW STANDARDS
SET BY THE NLRB FOR THE EXERCISE OF ITS JURISDICTION.  SEE TWENTY-THIRD
ANNUAL REPORT, NATIONAL LABOR RELATIONS BOARD, P. 8 (G.P.O., 1958). 

FN3  217 GA., AT 514, 123 S.E.2D, AT 655, QUOTING FROM POWERS V.
COURSON, 213 GA. 20, 96 S.E.2D 577. 

FN4  SECTIONS 8(B)(1)(A), 8(B)(2), 8(B)(4)(B), AND 8(B)(7)(C)
PROVIDE, IN PERTINENT PART: 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7 ...  : 

"(2)  TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE
AGAINST AN EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3) OR TO
DISCRIMINATE AGAINST AN EMPLOYEE WITH RESPECT TO WHOM MEMBERSHIP IN
SUCH ORGANIZATION HAS BEEN DENIED OR TERMINATED ON SOME GROUND OTHER
THAN HIS FAILURE TO TENDER THE PERIODIC DUES AND THE INITIATION FEES
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP: 

     *         *        *         *         * 

"(4)(I)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE ANY INDIVIDUAL
EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING
COMMERCE TO ENGAGE IN, A STRIKE OR A REFUSAL IN THE COURSE OF HIS
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE
OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM
ANY SERVICES; OR (II) TO THREATEN, COERCE, OR RESTRAIN ANY PERSON
ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE, WHERE IN
EITHER CASE AN OBJECT THEREOF IS: 

     *         *         *         *         * 

"(B)  FORCING OR REQUIRING ANY PERSON TO CEASE USING, SELLING,
HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY
OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING BUSINESS
WITH ANY OTHER PERSON, OR FORCING OR REQUIRING ANY OTHER EMPLOYER TO
RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE REPRESENTATIVE OF
HIS EMPLOYEES UNLESS SUCH LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE
REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS OF SECTION 9:
PROVIDED, THAT NOTHING CONTAINED IN THIS CLAUSE (B) SHALL BE CONSTRUED
TO MAKE UNLAWFUL, WHERE NOT OTHERWISE UNLAWFUL, ANY PRIMARY STRIKE OR
PRIMARY PICKETING: 

     *       *         *         *         * 

"(7)  TO PICKET OR CAUSE TO BE PICKETED, OR THREATEN TO PICKET OR
CAUSE TO BE PICKETED, ANY EMPLOYER WHERE AN OBJECT THEREOF IS FORCING
OR REQUIRING AN EMPLOYER TO RECOGNIZE OR BARGAIN WITH A LABOR
ORGANIZATION AS THE REPRESENTATIVE OF HIS EMPLOYEES, OR FORCING OR
REQUIRING THE EMPLOYEES OF AN EMPLOYER TO ACCEPT OR SELECT SUCH LABOR
ORGANIZATION AS THEIR COLLECTIVE BARGAINING REPRESENTATIVE, UNLESS SUCH
LABOR ORGANIZATION IS CURRENTLY CERTIFIED AS THE REPRESENTATIVE OF SUCH
EMPLOYEES: 

     *         *         *       *         * 

"(C)  WHERE SUCH PICKETING HAS BEEN CONDUCTED WITHOUT A PETITION
UNDER SECTION 9(C) BEING FILED WITHIN A REASONABLE PERIOD OF TIME NOT
TO EXCEED THIRTY DAYS FROM THE COMMENCEMENT OF SUCH PICKETING:
PROVIDED,  ...  THAT NOTHING IN THIS SUBPARAGRAPH (C) SHALL BE
CONSTRUED TO PROHIBIT ANY PICKETING OR OTHER PUBLICITY FOR THE PURPOSE
OF TRUTHFULLY ADVISING THE PUBLIC (INCLUDING CONSUMERS) THAT AN
EMPLOYER DOES NOT EMPLOY MEMBERS OF, OR HAVE A CONTRACT WITH, A LABOR
ORGANIZATION, UNLESS AN EFFECT OF SUCH PICKETING IS TO INDUCE ANY
INDIVIDUAL EMPLOYED BY ANY OTHER PERSON IN THE COURSE OF HIS
EMPLOYMENT, NOT TO PICK UP, DELIVER OR TRANSPORT ANY GOODS OR NOT TO
PERFORM ANY SERVICES. 

"NOTHING IN THIS PARAGRAPH (7) SHALL BE CONSTRUED TO PERMIT ANY ACT
WHICH WOULD OTHERWISE BE AN UNFAIR LABOR PRACTICE UNDER THIS SECTION
8(B)." 

SEE ALSO MEAT CUTTERS LOCAL 427 V. FAIRLAWN MEATS, INC., 353 U.S. 20,
23; RADIO UNION V. LABOR BOARD, 347 U.S. 17, 40-42, 52-53; LABOR BOARD
V. LOCAL UNION NO. 55, 218 F.2D 226, 232 (C.A. 10TH CIR.). 

FN5  THE COURT GRANTED CERTIORARI "BECAUSE OF THE IMPORTANCE OF THE
CONTENTION THAT THE STATE COURT'S DECISION HAD INVADED THE DOMAIN OF
THE FEDERAL COMMUNICATIONS COMMISSION" AND DIRECTED ATTENTION TO THE
QUESTION OF WHETHER OR NOT THE JUDGMENT OF THE NEBRASKA COURT WAS A
FINAL ONE.  326 U.S., AT 123. 

FN6  THIS, OF COURSE, WAS CONSISTENT WITH AND FOLLOWED OLDER CASES
RECOGNIZING A JUDGMENT AS FINAL EVEN THOUGH AN ACCOUNTING WAS STILL TO
TAKE PLACE.  FORGAY V. CONRAD, 6 HOW.  201; CARONDELET CANAL CO. V.
LOUISIANA, 233 U.S. 362. 

FN7  SEE CASES CITED IN TEXT, ANTE, P. 550. 

FN8  ACCORDING TO RESPONDENTS, THEY URGENTLY DESIRE TO LITIGATE AT
THE HEARING UPON A PERMANENT INJUNCTION THE QUESTION OF WHETHER THEY
VIOLATED THEIR CONTRACT WITH THE CITY, WHICH IN THEIR VIEW THE GEORGIA
SUPREME COURT DID NOT SQUARELY DECIDE.  BUT IN VIEW OF THE
CHARACTERIZATION OF THE PICKETING BY THE GEORGIA SUPREME COURT AS BEING
FOR THE PURPOSE OF COERCING THE HIRING OF ONLY UNION LABOR, IT IS STILL
TRUE THAT AS FAR AS PETITIONER IS CONCERNED, THERE IS NOTHING MORE OF
SUBSTANCE TO BE LITIGATED IN THE TRIAL COURT. 

FN9  E.G., SAN DIEGO COUNCIL V. GARMON, 359 U.S. 236, AND CASES CITED
IN TEXT, ANTE, P. 547. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I JOIN IN THE DETERMINATION THAT WE HAVE APPELLATE JURISDICTION IN
THIS CASE, AND IN THE REVERSAL OF THE JUDGMENT BELOW.  BUT I BELIEVE
THAT THE APPROACH TAKEN BY THE COURT TO THE QUESTION OF "FINALITY" IS
FAR BROADER THAN THE CASE DEMANDS, OR THAN PRECEDENT AND POLICY WOULD
WARRANT.* 

*MY VIEWS IN THIS AREA ARE MORE FULLY SET FORTH IN THE DISSENTING
OPINION I HAVE FILED IN MERCANTILE NATIONAL BANK V. LANGDEAU, POST, P.
572. 

AT LEAST UNTIL TODAY, NONE OF THIS COURT'S DECISIONS COULD BE
INTERPRETED TO SUGGEST THAT A STATE COURT'S DETERMINATION AS TO STATE
VERSUS FEDERAL JURISDICTION COULD, WITHOUT MORE, BE CONSIDERED A FINAL
JUDGMENT SUBJECT TO OUR REVIEW WHEN FURTHER PROCEEDINGS ON THE MERITS
WERE STILL PENDING.  INDEED, MONTGOMERY BUILDING & CONSTRUCTION TRADES
COUNCIL V. LEDBETTER ERECTION CO., 344 U.S. 178, HELD EXPRESSLY TO THE
CONTRARY, DESPITE THE FACT THAT THE DETERMINATION OF JURISDICTION HAD
BEEN COUPLED, AS IN THE PRESENT CASE, WITH THE ISSUANCE OF A TEMPORARY
INJUNCTION.  IN LEDBETTER, AS HERE, IT WAS CLAIMED THAT THE TEMPORARY
INJUNCTION MIGHT WELL HAVE THE PRACTICAL EFFECT OF MOOTING THE
UNDERLYING DISPUTE, THEREBY ABORTING ANY REVIEW OF THE JURISDICTIONAL
ISSUE. 

NEITHER COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541, NOR
RADIO STATION WOW, INC., V. JOHNSON, 326 U.S. 120, LENDS SUPPORT TO THE
VIEW THAT A DETERMINATION OF JURISDICTION AT THIS STAGE, SIMPLY BY
VIRTUE OF ITS SEPARABILITY FROM THE REST OF THE CASE, CAN BE DEEMED A
FINAL JUDGMENT.  FOR HERE, UNLIKE COHEN, THE QUESTION NOW RAISED WOULD
BE MERGED IN THE FINAL JUDGMENT AND WOULD BE OPEN TO REVIEW BY THIS
COURT AT THAT TIME.  AND UNLIKE RADIO STATION WOW, WHERE THE SUBSEQUENT
STATE PROCEEDINGS COULD NOT MOOT THE CONTROVERSY SOUGHT TO BE BROUGHT
BEFORE THE COURT, A VICTORY FOR THIS PETITIONER IN THE PERMANENT
INJUNCTION PROCEEDINGS WOULD EFFECTIVELY DISPOSE OF THE ENTIRE CASE. 

IN ANY EVENT, THERE IS NO NEED TO STRAIN THESE PRECEDENTS TO THE
BREAKING POINT, SINCE AS THE COURT ITSELF RECOGNIZES (ANTE, P. 550),
"THERE IS ANOTHER ENTIRELY ADEQUATE REASON FOR SUSTAINING OUR AUTHORITY
TO REVIEW IN THIS CASE."  DURING ORAL ARGUMENT BEFORE THE COURT,
PETITIONER CONCEDED THAT IN ANY PROCEEDINGS ON THE ISSUANCE OF A
PERMANENT INJUNCTION, IT WOULD HAVE NOTHING LEFT TO LITIGATE.  IN OTHER
WORDS, THE STATE COURTS HAVING DECIDED THAT THEY HAD JURISDICTION AND
THAT THE PICKETING WAS FOR AN UNLAWFUL PURPOSE, THE PETITIONER WOULD
HAVE NOTHING FURTHER TO OFFER ON THESE OR ANY OTHER ISSUES, AND THE
ISSUANCE OF A PERMANENT INJUNCTION WOULD FOLLOW AS A MATTER OF COURSE. 

IT BEING CLEAR THAT THE ENTIRE CASE MUST STAND OR FALL ON THE FEDERAL
CLAIM NOW PRESENTED, THE CASE IS SQUARELY GOVERNED BY POPE V. ATLANTIC
COAST LINE R. CO., 345 U.S. 379.  SINCE WHAT REMAINS TO BE DONE IS ONLY
A FORMALITY, THE JUDGMENT SOUGHT TO BE REVIEWED IS FINAL IN EVERY
SIGNIFICANT SENSE.  NO SUCH SHOWING WAS MADE IN LEDBETTER, SUPRA, AND
THE CASE IS READILY DISTINGUISHABLE ON THIS GROUND.  NO DOUBTS SHOULD
BE CAST ON THE VITALITY OF LEDBETTER; STILL LESS SHOULD IT BE
OVERRULED. 
..END :











MERCANTILE NATIONAL BANK AT DALLAS V. LANGDEAU 371 U.S. 555 


NO. 14.  ARGUED FEBRUARY 27-28, 1962.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED DECEMBER 5, 1962.  - DECIDED
JANUARY 21, 1963.* - 161 TEX. 349, 341 S.W.2D 161, REVERSED. 

*TOGETHER WITH NO. 15, REPUBLIC NATIONAL BANK OF DALLAS V. LANGDEAU,
RECEIVER, ALSO ON APPEAL FROM THE SAME COURT. 


APPELLEE, THE RECEIVER OF A TEXAS INSURANCE COMPANY IN LIQUIDATION IN
A TEXAS STATE COURT IN TRAVIS COUNTY, BROUGHT AN ACTION IN THAT COURT
AGAINST TWO NATIONAL BANKS AND 143 OTHER PARTIES, ALLEGING A CONSPIRACY
TO DEFRAUD THE INSURANCE COMPANY AND CLAIMING DAMAGES.  EACH NATIONAL
BANK FILED A PLEA OF PRIVILEGE UNDER TEXAS PRACTICE, ASSERTING THAT IT
WAS LOCATED IN DALLAS COUNTY AND, THEREFORE, WAS IMMUNE FROM SUIT IN A
STATE COURT ELSEWHERE UNDER SEC. 5198 OF THE REVISED STATUTES, WHICH
PROVIDES THAT ACTIONS AGAINST A NATIONAL BANK "MAY BE HAD" IN ANY STATE
COURT IN THE COUNTY OR CITY IN WHICH IT IS LOCATED.  ON AN APPEAL IN
WHICH IT WAS AGREED THAT THE ONLY ISSUE WAS WHETHER SEC. 5198 ENTITLED
THE NATIONAL BANKS TO HAVE THE ACTION TRANSFERRED TO THE STATE COURT IN
DALLAS COUNTY OR WHETHER VENUE WAS CONTROLLED BY A TEXAS STATUTE, THE
TEXAS SUPREME COURT REFUSED TO ACCEPT SEC. 5198 AS PROHIBITING A SUIT
AGAINST THE NATIONAL BANKS IN TRAVIS COUNTY, WHERE A STATE VENUE
STATUTE EXPRESSLY PERMITTED IT.  THE BANKS APPEALED TO THIS COURT. 
HELD: 

1.  THE JUDGMENTS OF THE TEXAS SUPREME COURT ARE "FINAL," WITHIN THE
MEANING OF 28 U.S.C.  SEC. 1257(2), AND THIS COURT HAS JURISDICTION OF
THE APPEALS.  PP. 557-558. 

2.  SECTION 5198 OF THE REVISED STATUTES IS CONTROLLING HERE, AND
THIS SUIT IN A STATE COURT AGAINST NATIONAL BANKS MAY NOT BE MAINTAINED
IN A COUNTY OR CITY OTHER THAN THAT IN WHICH THEY ARE LOCATED.  PP. 558
567. 

(A)  NATIONAL BANKS ARE INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT,
AND CONGRESS HAD AND EXERCISED THE AUTHORITY TO PRESCRIBE THE MANNER
AND CIRCUMSTANCES UNDER WHICH THEY COULD SUE OR BE SUED.  PP. 558-559. 

(B)  CONGRESS INTENDED THAT A NATIONAL BANK COULD NOT BE SUED AGAINST
ITS WILL IN ANY COURT OTHER THAN THOSE SPECIFIED IN SEC. 5198.  PP. 559
564. 

(C)  SECTION 5198 HAS NOT BEEN REPEALED, AND IT IS FULLY EFFECTIVE. 
PP. 565-567. 

MERCANTILE NATIONAL BANK AT DALLAS V. LANGDEAU, RECEIVER. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

APPELLEE, THE RECEIVER FOR A TEXAS INSURANCE COMPANY IN LIQUIDATION
IN THE NINETY-EIGHTH DISTRICT COURT OF TRAVIS COUNTY, TEXAS, BROUGHT AN
ACTION IN THAT COURT AGAINST THE TWO NATIONAL BANKS WHO ARE APPELLANTS
HERE AND AGAINST 143 OTHER PARTIES, ALLEGING A CONSPIRACY TO DEFRAUD
THE INSURANCE COMPANY AND CLAIMING DAMAGES JOINTLY AND SEVERALLY IN THE
AMOUNT OF 15 MILLION DOLLARS.  EACH APPELLANT FILED A PLEA OF
PRIVILEGE, AS PROVIDED BY THE TEXAS RULES OF CIVIL PROCEDURE, ASSERTING
THAT IT WAS LOCATED IN DALLAS COUNTY, TEXAS, AND WAS THEREFORE IMMUNE
FROM SUIT IN TRAVIS COUNTY UNDER THE PROVISIONS OF REV. STAT. SEC. 5198
(1878), 12 U.S.C. SEC. 94, WHICH PROVIDES: 

"ACTIONS AND PROCEEDINGS AGAINST ANY ASSOCIATION UNDER THIS CHAPTER
MAY BE HAD IN ANY DISTRICT OR TERRITORIAL COURT OF THE UNITED STATES
HELD WITHIN THE DISTRICT IN WHICH SUCH ASSOCIATION MAY BE ESTABLISHED,
OR IN ANY STATE, COUNTY, OR MUNICIPAL COURT IN THE COUNTY OR CITY IN
WHICH SAID ASSOCIATION IS LOCATED HAVING JURISDICTION IN SIMILAR
CASES."  (FN1) 

APPELLEE, ON THE OTHER HAND, RELIED UPON TEXAS INSURANCE CODE, ART.
21.28, SECTION 4 OF WHICH PROVIDES: 

"(F)  NEW LAWSUITS.  THE COURT OF COMPETENT JURISDICTION OF THE
COUNTY IN WHICH THE DELINQUENCY PROCEEDINGS ARE PENDING UNDER THIS
ARTICLE SHALL HAVE VENUE TO HEAR AND DETERMINE ALL ACTION OR
PROCEEDINGS INSTITUTED AFTER THE COMMENCEMENT OF DELINQUENCY
PROCEEDINGS BY OR AGAINST THE INSURER OR RECEIVER." 

THE PLEAS OF THE BANKS WERE OVERRULED AND THEY APPEALED, IT BEING
AGREED THAT THE ONLY ISSUE FOR REVIEW WAS WHETHER 12 U.S.C. SEC. 94
ENTITLED APPELLANTS TO HAVE THE ACTION TRANSFERRED TO THE STATE COURT
IN DALLAS COUNTY OR WHETHER THE STATE VENUE PROVISION CONTAINED IN SEC.
4(F) OF THE INSURANCE CODE WAS CONTROLLING.  THE COURT OF CIVIL APPEALS
REVERSED AND SUSTAINED THE PLEAS OF PRIVILEGE ON THE GROUND THAT 12
U.S.C. SEC. 94 REQUIRED AN ACTION AGAINST A NATIONAL BANK TO BE BROUGHT
IN THE COUNTY OF ITS LOCATION.  THE TEXAS SUPREME COURT, HOWEVER,
REFUSED TO ACCEPT SEC. 94 AS PROHIBITING A SUIT AGAINST PETITIONERS IN
TRAVIS COUNTY WHEN A STATE VENUE STATUTE EXPRESSLY PERMITTED IT.  161
TEX. 349, 341 S.W.2D 161.  ON THE ONE HAND, THE COURT INTERPRETED SEC.
94 AS PERMISSIVE ONLY, NOT MANDATORY, AND ON THE OTHER, AS HAVING BEEN
REPEALED BY AN OMNIBUS REPEALING CLAUSE IN AN 1882 STATUTE (FN2)
SUBSEQUENTLY ABSORBED INTO 28 U.S.C. SEC. 1348.  (FN3)  APPELLANTS
BROUGHT THE CASES HERE UNDER 28 U.S.C. SEC. 1257(2) AND, BECAUSE OF THE
FINALITY QUESTION, WE POSTPONED RULING UPON OUR JURISDICTION UNTIL THE
MERITS WERE CONSIDERED.  368 U.S. 809. 

                                             I. 

THE QUESTION OF OUR APPELLATE JURISDICTION IS QUITE SIMILAR TO THE
ONE CONSIDERED IN CONSTRUCTION LABORERS V. CURRY, ANTE, P. 542,
ALTHOUGH THERE THE JURISDICTION OF ANY AND ALL STATE COURTS WAS AT
ISSUE AND HERE THE INQUIRY IS ONLY AS TO WHICH STATE COURT HAS PROPER
VENUE TO ENTERTAIN AN ACTION AGAINST TWO NATIONAL BANKS.  NONETHELESS,
A SUBSTANTIAL CLAIM, APPEALABLE UNDER STATE LAW, IS MADE THAT A FEDERAL
STATUTE, RATHER THAN A STATE STATUTE, DETERMINES IN WHICH STATE COURT A
NATIONAL BANK MAY BE SUED AND, AS IN CURRY, PROHIBITS FURTHER
PROCEEDINGS AGAINST THE DEFENDANTS IN THE STATE COURT IN WHICH THE SUIT
IS NOW PENDING.  THIS IS A SEPARATE AND INDEPENDENT MATTER, ANTERIOR TO
THE MERITS AND NOT ENMESHED IN THE FACTUAL AND LEGAL ISSUES COMPRISING
THE PLAINTIFF'S CAUSE OF ACTION.  MOREOVER, WE BELIEVE THAT IT SERVES
THE POLICY UNDERLYING THE REQUIREMENT OF FINALITY IN 28 U.S.C. SEC.
1257 TO DETERMINE NOW IN WHICH STATE COURT APPELLANTS MAY BE TRIED
RATHER THAN TO SUBJECT THEM, AND APPELLEE, TO LONG AND COMPLEX
LITIGATION WHICH MAY ALL BE FOR NAUGHT IF CONSIDERATION OF THE
PRELIMINARY QUESTION OF VENUE IS POSTPONED UNTIL THE CONCLUSION OF THE
PROCEEDINGS.  ACCORDINGLY, WE NOTE OUR JURISDICTION TO HEAR THESE
APPEALS UNDER SEC. 1257(2) AND TURN NOW TO THE QUESTION OF WHETHER
APPELLANTS MAY BE SUED IN THE TRAVIS COUNTY COURT. 

II. 

THE ROOTS OF THIS PROBLEM REACH BACK TO THE NATIONAL BANKING ACT OF
1863, 12 STAT. 665, REPLACED A YEAR LATER BY THE ACT OF 1864, 13 STAT.
99.  (FN4)  NATIONAL BANKS ARE FEDERAL INSTRUMENTALITIES AND THE POWER
OF CONGRESS OVER THEM IS EXTENSIVE.  "NATIONAL BANKS ARE QUASI-PUBLIC
INSTITUTIONS, AND FOR THE PURPOSE FOR WHICH THEY ARE INSTITUTED ARE
NATIONAL IN THEIR CHARACTER, AND, WITHIN CONSTITUTIONAL LIMITS, ARE
SUBJECT TO THE CONTROL OF CONGRESS AND ARE NOT TO BE INTERFERED WITH BY
STATE LEGISLATIVE OR JUDICIAL ACTION, EXCEPT SO FAR AS THE LAWMAKING
POWER OF THE GOVERNMENT MAY PERMIT."  VAN REED V. PEOPLE'S NAT. BANK,
198 U.S. 554, 557.  UNQUESTIONABLY CONGRESS HAD AUTHORITY TO PRESCRIBE
THE MANNER AND CIRCUMSTANCES UNDER WHICH THE BANKS COULD SUE OR BE SUED
IN THE COURTS AND IT ADDRESSED ITSELF TO THIS MATTER IN THE 1863 ACT. 

BY SEC. 11 OF THAT ACT THE BANKING ASSOCIATIONS WERE GIVEN GENERAL
CORPORATE POWERS, AMONG THEM THE POWER TO "SUE AND BE SUED  ...  IN ANY
COURT OF LAW OR EQUITY AS FULLY AS NATURAL PERSONS."  (FN5)  THIS
CRANCH 61, IS OBSERVED, CONFERRED NO JURISDICTION UPON THE COURTS BUT
MERELY ENDOWED THE BANKS WITH POWER TO SUE AND BE SUED IN THE COURTS AS
CORPORATIONS.  CONGRESS, HOWEVER, HAD MORE TO SAY ABOUT THIS SUBJECT. 
ASSOCIATION UNDER THE ACT COULD BE HAD IN ANY FEDERAL COURT HELD WITHIN
THE DISTRICT IN WHICH THE ASSOCIATION WAS ESTABLISHED.   NO MENTION WAS
MADE OF SUITS IN STATE COURTS.  IF THE LAW HAD REMAINED IN THIS FORM,
THERE MIGHT WELL HAVE BEEN GRAVE DOUBT ABOUT THE SUABILITY OF NATIONAL
BANKS IN THE STATE COURTS, AS THIS COURT NOTED IN FIRST NAT. BANK V.
UNION TRUST CO., 244 U.S. 416, 428.  (FN7)  THE NEXT YEAR, HOWEVER,
CONGRESS EXPRESSLY EXERCISED ITS POWER TO PERMIT NATIONAL BANKS TO BE
SUED IN CERTAIN STATE COURTS AS WELL AS IN FEDERAL COURTS.  SECTION 57
OF THE 1864 ACT (FN8) CARRIED FORWARD THE FORMER SEC. 59 AND ALSO ADDED
THAT "SUITS  ...  MAY BE HAD  ...  IN ANY STATE, COUNTY, OR MUNICIPAL
COURT IN THE COUNTY OR CITY IN WHICH SAID ASSOCIATION IS LOCATED,
HAVING JURISDICTION IN SIMILAR CASES  ...  ."  THE PHRASE "SUITS  ...
MAY BE HAD" WAS, IN EVERY RESPECT, APPROPRIATE LANGUAGE FOR THE PURPOSE
OF SPECIFYING THE PRECISE COURTS IN WHICH CONGRESS CONSENTED TO HAVE
NATIONAL BANKS SUBJECT TO SUIT AND WE BELIEVE CONGRESS INTENDED THAT IN
THOSE COURTS ALONE COULD A NATIONAL BANK BE SUED AGAINST ITS WILL. 

WE WOULD NOT LIGHTLY CONCLUDE THAT A CONGRESSIONAL ENACTMENT HAS NO
PURPOSE OR FUNCTION.  WE MUST STRIVE TO GIVE APPROPRIATE MEANING TO
EACH OF THE PROVISIONS OF TITLE 12 AND ITS PREDECESSORS.  SEE UNITED
STATES V. MENASCHE, 348 U.S. 528, 539; MONTCLAIR V. RAMSDELL, 107 U.S.
147, 152.  APPELLEE, HOWEVER, WOULD HAVE US HOLD THAT ANY STATE COURT
COULD ENTERTAIN A SUIT AGAINST A NATIONAL BANK AS LONG AS STATE
JURISDICTIONAL AND VENUE REQUIREMENTS WERE OTHERWISE SATISFIED.  SUCH A
RULING, OF COURSE, WOULD RENDER ALTOGETHER MEANINGLESS A CONGRESSIONAL
ENACTMENT PERMITTING SUIT TO BE BROUGHT IN THE BANK'S HOME COUNTY. 
THIS WE ARE UNWILLING TO DO, PARTICULARLY IN LIGHT OF THE HISTORY OF
SEC. 57.  THAT SECTION WAS OMITTED FROM TITLE 62 (NATIONAL BANKS) OF
THE REVISED STATUTES OF 1873, BUT AT THE SAME TIME, THERE WERE INCLUDED
IN TITLE 13 (THE JUDICIARY) PROVISIONS GRANTING THE FEDERAL COURTS
JURISDICTION OVER SUITS BY AND AGAINST NATIONAL BANKS BROUGHT IN THE
DISTRICT OF THEIR RESIDENCE.  (FN9)  THESE EXPRESS PROVISIONS RELATING
TO THE JURISDICTION OF THE FEDERAL COURTS APPARENTLY DID NOT SOLVE THE
ENTIRE PROBLEM, FOR SEC. 5198 OF TITLE 62, REVISED STATUTES, WAS
AMENDED IN 1875 BY ADDING TO IT PROVISIONS SUBSTANTIALLY IDENTICAL TO
SEC. 57 OF THE 1864 ACT.  (FN10)  THUS FOR A SECOND TIME CONGRESS
SPECIFIED THE PRECISE FEDERAL AND STATE COURTS IN WHICH SUITS AGAINST
NATIONAL BANKS COULD BE BROUGHT. 

ALL OF THE CASES IN THIS COURT WHICH HAVE TOUCHED UPON THE ISSUE HERE
ARE IN ACCORD WITH OUR CONCLUSION THAT NATIONAL BANKS MAY BE SUED ONLY
IN THOSE STATE COURTS IN THE COUNTY WHERE THE BANKS ARE LOCATED. 
(FN11)  NOTABLE AMONG THESE IS CHARLOTTE NAT. BANK V. MORGAN, 132 U.S.
141, WHICH INVOLVED A SUIT AGAINST A NATIONAL BANK BROUGHT IN A COUNTY
OTHER THAN THAT IN WHICH THE BANK WAS LOCATED.  THIS COURT STATED THAT
SEC. 57 CONFERRED A PERSONAL PRIVILEGE ON THE BANKS EXEMPTING THEM FROM
SUITS IN STATE COURTS OUTSIDE THEIR HOME COUNTIES.  HOWEVER, SINCE THE
BANK IN THAT CASE HAD NOT OBJECTED AT THE TRIAL TO THE LOCATION OF THE
SUIT BUT RAISED THE ISSUE FOR THE FIRST TIME ON APPEAL, THE COURT HELD
THAT THE SEC. 57 PRIVILEGE HAD BEEN WAIVED.  (FN12) 

THUS, WE FIND NOTHING IN THE STATUTE, ITS HISTORY OR THE CASES IN
THIS COURT TO SUPPORT APPELLEE'S CONSTRUCTION OF THIS STATUTE.  ON THE
CONTRARY, ALL THESE SOURCES CONVINCE US THAT THE STATUTE MUST BE GIVEN
A MANDATORY READING.  (FN13) 

THE CONSEQUENCE OF OUR DECISION, APPELLEE SAYS, IS THAT A LITIGANT
WILL BE UNABLE TO JOIN TWO NATIONAL BANKS IN THE SAME ACTION IN THE
STATE COURTS IF THEY ARE LOCATED IN DIFFERENT COUNTIES OR IN THE
FEDERAL COURTS IF THEY ARE LOCATED IN DIFFERENT DISTRICTS.  BUT ASIDE
FROM NOT BEING PRESENTED BY THESE CASES, SUCH A SITUATION IS A MATTER
FOR CONGRESS TO CONSIDER.  CF. 28 U.S.C. SECS. 1391(A), (B), 1401;
GREENBERG V. GIANNINI, 140 F.2D 550, 552 (C.A.2D CIR.).  SEE ALSO,
BANKERS LIFE & CASUALTY CO. V. HOLLAND, 346 U.S. 379, 384. 

SIMILARLY, EVEN IF ALL OF THE 145 DEFENDANTS MAY NOT BE SUED IN ONE
PROCEEDING IN DALLAS COUNTY WITH THE SAME FACILITY AS THEY MAY IN
TRAVIS COUNTY, THIS, OF COURSE, IS INSUFFICIENT BASIS FOR DEPARTING
FROM THE COMMAND OF THE FEDERAL STATUTE.  NEVERTHELESS, THOUGH WE HAVE
NO INTENTION OF VENTURING AN OPINION ON MATTERS OF TEXAS PROCEDURE,
PARTICULARLY WHEN THE PARTIES WERE IN DISAGREEMENT ABOUT THEM IN
ARGUMENT BEFORE THIS COURT, WE ARE AWARE OF THE RECENT RULING OF THE
TEXAS SUPREME COURT, LANGDEAU V. BURKE INVESTMENT CO., - TEX. - , 358
S.W.2D 553, HOLDING TEXAS INSURANCE CODE, ART. 21.28(4), PERMISSIVE,
NOT MANDATORY, THUS NOT RESTRICTING THE RECEIVER TO SUITS IN THE
RECEIVERSHIP COURT.  WE HAVE ALSO NOTED THAT TEXAS PROCEDURAL RULES
MIGHT VERY WELL PERMIT THE TRANSFER OF THE ENTIRE CASE TO DALLAS
COUNTY.  TEX. RULES CIV.  PROC. 89; (FN14) TUNSTILL V. SCOTT, 138 TEX.
425, 160 S.W.2D 65; TERRELL V. KOHLER, 48 S.W.2D 531 (TEX. CIV. APP.).
MOREOVER, TEX. RULES CIV. PROC. 164 (FN15) APPEARS TO PERMIT DISMISSAL
OF SUITS WITHOUT PREJUDICE WHEN A PLEA OF IMPROPER VENUE IS SUSTAINED,
SEE LUCK V. WELCH, 243 S.W.2D 589 (TEX. CIV. APP., REF. N.R.E.); WILEY
V. JOINER, 223 S.W.2D 539 (TEX. CIV. APP.), OPENING THE WAY FOR A NEW
SUIT WHICH ARTICLE 1995(4) (FN16) INDICATES COULD BE BROUGHT IN DALLAS
COUNTY.  (FN17) 

APPELLEE, FINALLY, ATEMPTS TO AVOID HIS VENUE PROBLEM ENTIRELY BY
DENYING THE VERY EXISTENCE OF SEC. 5198, REV. STAT. (1878).  SECTION
5198, APPELLEE SAYS, WAS REPEALED BY THE PROVISO TO SEC. 4 OF THE ACT
OF JULY 12, 1882: 

"THE JURISDICTION FOR SUITS HEREAFTER BROUGHT BY OR AGAINST ANY
ASSOCIATION  ...  SHALL BE THE SAME AS, AND NOT OTHER THAN, THE
JURISDICTION FOR SUITS BY OR AGAINST BANKS NOT ORGANIZED UNDER ANY LAW
OF THE UNITED STATES  ...  .  AND ALL LAWS AND PARTS OF LAWS OF THE
UNITED STATES INCONSISTENT WITH THIS PROVISO BE, AND THE SAME ARE
HEREBY, REPEALED."  (FN18) 

IT IS ALSO SAID THAT 28 U.S.C. SEC. 1348, (FN19) DERIVED FROM THE ACT
OF MARCH 3, 1887, (FN20) RE-ENACTS SEC. 4 OF THE 1882 ACT, IN SOMEWHAT
MODIFIED FORM, THUS CONTINUING THE CONGRESSIONAL INTENT TO REPEAL SEC.
5198 TO THE EXTENT THAT IT PRESCRIBES THE VENUE OF SUITS IN STATE
COURTS.  SEE 161 TEX., AT 356, 341 S.W.2D, AT 166. 

SINCE SEC. 4 OF THE ACT OF 1882 AND ITS SUCCESSORS DO NOT EXPRESSLY
REPEAL SEC. 5198, APPELLEE'S CONTENTION IS NECESSARILY ONE OF IMPLIED
REPEAL REQUIRING SOME MANIFEST INCONSISTENCY OR POSITIVE REPUGNANCE
BETWEEN THE TWO STATUTES.  UNITED STATES V. BORDEN CO., 308 U.S. 188,
198-199.  WE FIND NEITHER HERE.  SECTION 5198, AS CONSTRUED IN THE
CHARLOTTE NAT. BANK CASE, IS ESSENTIALLY A VENUE STATUTE GOVERNING THE
PROPER LOCATION OF SUITS AGAINST NATIONAL BANKS IN EITHER FEDERAL OR
STATE COURTS, WHEREAS SEC. 4 OF THE 1882 ACT AND THE 1887 ACT WERE
DESIGNED TO OVERCOME THE EFFECT OF SECS. 563 AND 629 REV. STAT. (FN21)
WHICH ALLOWED NATIONAL BANKS TO SUE AND BE SUED IN THE FEDERAL DISTRICT
AND CIRCUIT COURTS SOLELY BECAUSE THEY WERE NATIONAL BANKS, WITHOUT
REGARD TO DIVERSITY, AMOUNT IN CONTROVERSY OR THE EXISTENCE OF A
FEDERAL QUESTION IN THE USUAL SENSE.  SECTION 4 APPARENTLY SOUGHT TO
LIMIT, WITH EXCEPTIONS, THE ACCESS OF NATIONAL BANKS TO, AND THEIR
SUABILITY IN, THE FEDERAL COURTS TO THE SAME EXTENT TO WHICH NON
NATIONAL BANKS ARE SO LIMITED.  (FN22) 

DECISIONS OF THIS COURT HAVE RECOGNIZED THAT SEC. 4 PURPORTED TO DEAL
WITH NO MORE THAN MATTERS OF FEDERAL JURISDICTION.  AS WE OBSERVED IN
CONTINENTAL NATIONAL BANK V. BUFORD, 191 U.S. 119, 123-124:   "THE
NECESSARY EFFECT OF THIS LEGISLATION WAS TO MAKE NATIONAL BANKS  ...
CITIZENS OF THE STATES IN WHICH THEY WERE RESPECTIVELY LOCATED, AND TO
WITHDRAW FROM THEM THE RIGHT TO INVOKE THE JURISDICTION OF THE CIRCUIT
COURTS OF THE UNITED STATES SIMPLY ON THE GROUND THAT THEY WERE CREATED
BY AND EXERCISED THEIR POWERS UNDER ACTS OF CONGRESS.  NO OTHER PURPOSE
CAN BE IMPUTED TO CONGRESS THAN TO EFFECT THAT RESULT." 

SEE ALSO LEATHER MANUFACTURERS' BANK V. COOPER, 120 U.S. 778. 
MOREOVER, NOTHING IN THE SUBSEQUENT HISTORY OF THIS STATUTE, NOW 28
U.S.C. SEC. 1348, WARRANTS THE CONCLUSION THAT CONGRESS SOUGHT, EVEN BY
IMPLICATION, TO RELAX THE VENUE RESTRICTIONS OF SEC. 5198. 

THE PROVISIONS OF SEC. 5198 ARE FULLY EFFECTIVE AND MUST BE
RECOGNIZED WHEN THEY ARE DULY RAISED.  THE JUDGMENTS OF THE TEXAS
SUPREME COURT ARE REVERSED AND THE CAUSES REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  SEE APPENDIX, NO. 4.  THE PERTINENT NATIONAL BANK LEGISLATION
APPEARS IN THE APPENDIX TO THIS OPINION, POST, P. 567. 

FN2  SEE APPENDIX, NO. 6. 

FN3  SEE APPENDIX, NO. 8. 

FN4  THE HISTORY OF NATIONAL BANKING IN THE UNITED STATES BEGINS WITH
THE FIRST BANK OF THE UNITED STATES, CHARTERED IN 1791 (1 STAT. 191;
SEE BANK OF THE UNITED STATES V. DEVEAUX, 5 CRANCH 61), WHICH CONTINUED
IN EXISTENCE UNTIL 1811.  1 DICTIONARY OF AMERICAN HISTORY 155 (1940). 
THE SECOND BANK WAS INCORPORATED IN 1816, 3 STAT. 266, SEE OSBORN V.
BANK OF THE UNITED STATES, 9 WHEAT.  738, AND TERMINATED IN 1836 WHEN
ITS CHARTER WAS PERMITTED TO EXPIRE.  IBID. 

FN5  SEE APPENDIX, NO. 1. 

FN6  IBID. 

FN7  "OUR CONCLUSION ON THIS SUBJECT IS FORTIFIED BY THE TERMS OF
SEC. 57, C. 106, 13 STAT.  116 (THE 1864 ACT, DISCUSSED INFRA), MAKING
CONTROVERSIES CONCERNING NATIONAL BANKS COGNIZABLE IN STATE COURTS
BECAUSE OF THEIR INTIMATE RELATION TO MANY STATE LAWS AND REGULATIONS,
ALTHOUGH WITHOUT THE GRANT OF THE ACT OF CONGRESS SUCH CONTROVERSIES
WOULD HAVE BEEN FEDERAL IN CHARACTER."  244 U.S., AT 428.  BUT CF.
CLAFLIN V. HOUSEMAN, 93 U.S. 130, 135. 

FN8  SEE APPENDIX, NO. 2. 

FN9  SEE APPENDIX, NO. 5. 

FN10  SEE APPENDIX, NO. 3. 

FN11  BANK OF BETHEL V. PAHQUIOQUE BANK, 14 WALL 383, WAS A SUIT IN
STATE COURTS AGAINST A NATIONAL BANK IN DEFAULT ON ITS NOTES.  THE
NATIONAL BANK CONTENDED THAT SINCE IT WAS AN INSTRUMENTALITY OF THE
FEDERAL GOVERNMENT, IT WAS NOT SUBJECT TO SUIT IN STATE COURTS.  THIS
COURT, NOTING THAT THE SUIT WAS IN A STATE COURT WHERE THE BANK WAS
LOCATED, SUSTAINED THE POWER OF THE STATE COURT SQUARELY UPON THE
PROVISIONS OF SEC. 57.  SUBSEQUENTLY, CASEY V. ADAMS, 102 U.S. 66,
REAFFIRMED THE MANDATE OF SEC. 57, THEN REV. STAT. SEC. 5198, AS
APPLIED TO ORDINARY TRANSITORY ACTIONS BUT HELD THAT CONGRESS DID NOT
INTEND IT TO APPLY TO LOCAL, IN REM ACTIONS.  MANY YEARS LATER, IN THE
COURSE OF DECIDING COPE V. ANDERSON, 331 U.S. 461, THIS COURT, IN
COMPELLING LANGUAGE, POINTED OUT:  "FOR JURISDICTIONAL PURPOSES, A
NATIONAL BANK IS A 'CITIZEN' OF THE STATE IN WHICH IT IS ESTABLISHED OR
LOCATED, 28 U.S.C. SEC. 41(16), AND IN THAT DISTRICT ALONE CAN IT BE
SUED.  12 U.S.C. SEC. 94."  331 U.S., AT 467. 

FN12  "THIS EXEMPTION OF NATIONAL BANKING ASSOCIATIONS FROM SUITS IN
STATE COURTS, ESTABLISHED ELSEWHERE THAN IN THE COUNTY OR CITY IN WHICH
SUCH ASSOCIATIONS WERE LOCATED, WAS, WE DO NOT DOUBT, PRESCRIBED FOR
THE CONVENIENCE OF THOSE INSTITUTIONS, AND TO PREVENT INTERRUPTION IN
THEIR BUSINESS THAT MIGHT RESULT FROM THEIR BOOKS BEING SENT TO DISTANT
COUNTIES IN OBEDIENCE TO PROCESS FROM STATE COURTS.  BANK OF BETHEL V.
PAHQUIOQUE BANK, 14 WALL.  383, 394; CROCKER V. MARINE NATIONAL BANK,
101 MASS. 200 (240).  BUT, WITHOUT INDULGING IN CONJECTURE AS TO THE
OBJECT OF THE EXEMPTION IN QUESTION, IT IS SUFFICIENT THAT IT WAS
GRANTED BY CONGRESS, AND, IF IT HAD BEEN CLAIMED BY THE DEFENDANT WHEN
APPEARING IN THE SUPERIOR COURT OF CLEVELAND COUNTY, MUST HAVE BEEN
RECOGNIZED.  THE DEFENDANT DID NOT, HOWEVER, CHOOSE TO CLAIM IMMUNITY
FROM SUIT IN THAT COURT.  IT MADE DEFENCE UPON THE MERITS, AND, HAVING
BEEN UNSUCCESSFUL, PROSECUTED A WRIT OF ERROR TO THE SUPREME COURT OF
THE STATE, AND IN THE LATTER TRIBUNAL, FOR THE FIRST TIME, CLAIMED THE
IMMUNITY GRANTED TO IT BY CONGRESS.  THIS WAS TOO LATE.  CONSIDERING
THE OBJECT AS WELL AS THE WORDS OF THE STATUTE AUTHORIZING SUIT AGAINST
A NATIONAL BANKING ASSOCIATION TO BE BROUGHT IN THE PROPER STATE COURT
OF THE COUNTY WHERE IT IS LOCATED, WE ARE OF OPINION THAT ITS EXEMPTION
FROM SUITS IN OTHER COURTS OF THE SAME STATE WAS A PERSONAL PRIVILEGE
THAT IT COULD WAIVE, AND WHICH, IN THIS CASE, THE DEFENDANT DID WAIVE,
BY APPEARING AND MAKING DEFENCE WITHOUT CLAIMING THE IMMUNITY GRANTED
BY CONGRESS.  NO REASON CAN BE SUGGESTED WHY ONE COURT OF A STATE,
RATHER THAN ANOTHER, BOTH BEING OF THE SAME DIGNITY, SHOULD TAKE
COGNIZANCE OF A SUIT AGAINST A NATIONAL BANK, EXCEPT THE CONVENIENCE OF
THE BANK.  AND THIS CONSIDERATION SUPPORTS THE VIEW THAT THE EXEMPTION
OF A NATIONAL BANK FROM SUIT IN ANY STATE COURT EXCEPT ONE OF THE
COUNTY OR CITY IN WHICH IT IS LOCATED IS A PERSONAL PRIVILEGE, WHICH IT
COULD CLAIM OR NOT, AS IT DEEMED NECESSARY."  132 U.S., AT 145. 

FN13  THE LOWER FEDERAL COURTS HAVE BEEN UNANIMOUS IN HOLDING THE
F.2D 58 (C.A. 7TH CIR. 1951), CERT. DENIED, 342 U.S. 944; LEONARDI V.
CHASE NAT. BANK, 81 F.2D 19 (C.A.2D CIR. 1936), CERT. DENIED, 298 U.S.
677; INTERNATIONAL REFUGEE ORGANIZATION V. BANK OF AMERICA, 86 F. SUPP.
884 (S.D.N.Y. 1949); SCHMITT V. TOBIN, 15 F. SUPP. 35 (D. NEV. 1935);
CADLE V. TRACY, 4 FED. CAS. 967, NO. 2279 (C.C.S.D.N.Y. 1873). 

THE STATE COURTS CONSIDERING THE PROBLEM ARE ABOUT EVENLY DIVIDED. 
SOME HOLD THAT A NATIONAL BANK MUST BE SUED IN THE COUNTY WHERE IT IS
SITUATED, MONARCH WINE CO. V. BUTTE, 113 CAL. APP.  2D 833, 249 P.2D
291 (1952); CROCKER V. MARINE NAT. BANK, 101 MASS. 240 (1869);
RABINOWITZ V. KAISER-FRAZER CORP., 198 MISC. 312, 96 N.Y.S.2D 638 (SUP.
CT. 1950); RAIOLA V. LOS ANGELES BANK, 133 MISC. 630, 233 N.Y. SUPP.
301 (SUP. CT. 1929); BURNS V. NORTHWESTERN NAT. BANK, 65 N.D. 473, 260
N.W. 253 (1935); ZARBELL V. BANK OF AMERICA NAT. TRUST & SAVINGS ASSN.,
52 WASH. 2D 549, 327 P.2D 436 (1958).   OTHERS HOLD THAT THERE IS NO
SUCH REQUIREMENT ON THE THEORY THAT SEC. 57 OF THE 1864 BANKING ACT WAS
IMPLIEDLY REPEALED, FRESNO NAT. BANK V. SUPERIOR COURT, 83 CAL. 491, 24
P. 157 (1890); LEVITAN V. HOUGHTON NAT. BANK, 174 MICH. 566, 140 N.W.
1019 (1913); DE COCK V. O'CONNELL, 188 MINN. 228, 246 N.W. 885 (1933);
STEWART V. FIRST NAT. BANK, 93 MONT. 390, 18 P.2D 801 (1933); GUERRA V.
LEMBURG, 22 S.W.2D 336 (TEX. CIV. 1929); BRUST V. FIRST NAT. BANK, 184
WIS. 15, 198 N.W. 749 (1924), OR THAT THE SECTION IS TO BE GIVEN A
PERMISSIVE CONSTRUCTION, FIRST NAT. BANK V. ALSTON, 231 ALA. 348, 165
SO. 241 (ALA. 1936); HILLS V. BURNETT, 172 NEB. 370, 109 N.W.2D 739
(NEB. 1961); TALMAGE V. THIRD NAT. BANK, 91 N.Y. 531 (1883); CURLEE V.
NATIONAL BANK, 187 N.C. 119, 121 S.E. 194 (1924).  SEE ALSO COUNTY OF
OKEECHOBEE V. FLORIDA NAT. BANK, 112 FLA. 309, 150 SO. 124 (1933);
CASSATT V. FIRST NAT. BANK, 9 N.J. MISC. 222, 153 A. 377 (SUP. CT.
1931); CHAFFEE V. GLENS FALLS NAT. BANK & TRUST CO., 204 MISC. 181; 123
N.Y.S.2D 635 (SUP. CT. 1953), AFF'D, 283 APP. DIV. 793, 128 N.Y.S.2D
539, APPEAL DENIED, 129 N.Y.S.2D 237. 

FN14  "TRANSFERRED IF PLEA IS SUSTAINED. 

"IF A PLEA OF PRIVILEGE IS SUSTAINED, THE CAUSE SHALL NOT BE
DISMISSED, BUT THE COURT SHALL TRANSFER SAID CAUSE TO THE PROPER COURT
...  ."  TEX. RULES CIV. PROC. 89 (VERNON 1955). 

FN15  "NON-SUIT. 

"AT ANY TIME BEFORE THE JURY HAS RETIRED, THE PLAINTIFF MAY TAKE A
NON-SUIT, BUT HE SHALL NOT THEREBY PREJUDICE THE RIGHT OF AN ADVERSE
PARTY TO BE HEARD ON HIS CLAIM FOR AFFIRMATIVE RELIEF.  WHEN THE CASE
IS TRIED BY THE JUDGE, SUCH NON-SUIT MAY BE TAKEN AT ANY TIME BEFORE
THE DECISION IS ANNOUNCED."  TEX. RULES CIV. PROC. 164 (VERNON 1955). 

FN16  "VENUE, GENERAL RULE: 

   *         *         *         *         * 

"4.  DEFENDANTS IN DIFFERENT COUNTIES.  - IF TWO OR MORE DEFENDANTS
RESIDE IN DIFFERENT COUNTIES, SUIT MAY BE BROUGHT IN ANY COUNTY WHERE
ONE OF THE DEFENDANTS RESIDES."  ART. 1995(4), TEX.  REV. CIV. STAT.
(VERNON 1950). 

FN17  TO BE SURE, TEXAS LAW DOES NOT PERMIT FRIVOLOUS JOINDER OF
DEFENDANTS TO INSURE A DESIRED VENUE, SEE STOCKYARDS NAT. BANK V.
MAPLES, 127 TEX. 633, 95 S.W.2D 1300, BUT NOTHING BEFORE US INDICATES
THAT APPELLEE WILL FIND ANY DIFFICULTY IN SUSTAINING HIS BURDEN TO
ESTABLISH THAT THE DEFENDANT NATIONAL BANKS ARE RESIDENTS OF DALLAS
COUNTY AND THAT, AS HE ALLEGES, HIS CAUSE OF ACTION AGAINST THEM HAS A
SUBSTANTIAL AND VALID BASIS. 

FN18  SEE APPENDIX, NO. 6.  SEE NOTE 13, SUPRA, FOR STATE CASES WHICH
HAVE REACHED THE SAME CONCLUSION. 

FN19  SEE APPENDIX, NO. 8. 

FN20  SEE APPENDIX, NO. 7. 

FN21  SEE APPENDIX, NO. 5. 

FN22  THE PROVISO TO SEC. 4 OF THE 1882 ACT FIRST APPEARED AS AN
AMENDMENT OFFERED ON THE FLOOR OF THE HOUSE OF REPRESENTATIVE HAMMOND,
PURSUANT TO THE ORDER OF THE HOUSE FIXING THE ASSIGNMENT OF THE BILL
H.R. 4167 AS A SPECIAL ORDER.  SEE 13 CONG. REC. 3900, 3901.  MR.
HAMMOND SUCCINCTLY STATED THE PURPOSE OF HIS AMENDMENT AS FOLLOWS: 

"MY AMENDMENT, THEREFORE, DECLARES THAT THE JURISDICTIONAL LIMITS FOR
AND AS TO A NATIONAL BANK SHALL BE THE SAME AS THEY WOULD BE IN REGARD
TO A STATE BANK ACTUALLY DOING OR WHICH MIGHT BE DOING BUSINESS BY ITS
SIDE; THAT THEY SHALL BE ONE AND THE SAME."  13 CONG. REC., AT 4049. 
MR. ROBINSON THEN ASKED, "AS I UNDERSTAND THE GENTLEMAN'S PROPOSED
AMENDMENT, IT IS SIMPLY TO THIS EFFECT, THAT A NATIONAL BANK DOING
BUSINESS WITHIN A CERTAIN STATE SHALL BE SUBJECT FOR ALL PURPOSES OF
JURISDICTION TO PRECISELY THE SAME REGULATIONS TO WHICH A STATE BANK,
IF ORGANIZED THERE, WOULD BE SUBJECT."  MR. HAMMOND REPLIED, "THAT IS
ALL."  IBID. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, WHILE AGREEING WITH THE
COURT THAT THE JUDGMENTS ARE "FINAL," DISSENT ON THE MERITS OF THE
CONTROVERSY. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 572. 

                              APPENDIX TO OPINION OF THE COURT. 

1.  THE ACT OF FEBRUARY 25, 1863, C. 58: 

"SEC. 11.  AND BE IT FURTHER ENACTED, THAT EVERY ASSOCIATION FORMED
PURSUANT TO THE PROVISIONS OF THIS ACT MAY MAKE AND USE A COMMON SEAL,
AND SHALL HAVE SUCCESSION BY THE NAME DESIGNATED IN ITS ARTICLES OF
ASSOCIATION AND FOR THE PRIOD LIMITED THEREIN, NOT, HOWEVER, EXCEEDING
TWENTY YEARS FROM THE PASSAGE OF THIS ACT; BY SUCH NAME MAY MAKE
CONTRACTS, SUE AND BE SUED, COMPLAIN AND DEFEND IN ANY COURT OF LAW OR
EQUITY AS FULLY AS NATURAL PERSONS  ...  ."  12 STAT. 668. 

"SEC. 59.  AND BE IT FURTHER ENACTED, THAT SUITS, ACTIONS, AND
PROCEEDINGS BY AND AGAINST ANY ASSOCIATION UNDER THIS ACT MAY BE HAD IN
ANY CIRCUIT, DISTRICT, OR TERRITORIAL COURT OF THE UNITED STATES HELD
WITHIN THE DISTRICT IN WHICH SUCH ASSOCIATION MAY BE ESTABLISHED."  12
STAT. 681. 

2.  THE ACT OF JUNE 3, 1864, C. 106: 

"SEC. 8.  ...  SUCH ASSOCIATION  ...  MAY MAKE CONTRACTS, SUE AND BE
SUED, COMPLAIN AND DEFEND, IN ANY COURT OF LAW AND EQUITY AS FULLY AS
NATURAL PERSONS."  13 STAT. 101; REV. STAT. SEC.  5136 (1873). 

"SEC. 57.  ...  THAT SUITS, ACTIONS, AND PROCEEDINGS, AGAINST ANY
ASSOCIATION UNDER THIS ACT, MAY BE HAD IN ANY CIRCUIT, DISTRICT, OR
TERRITORIAL COURT OF THE UNITED STATES HELD WITHIN THE DISTRICT IN
WHICH SUCH ASSOCIATION MAY BE ESTABLISHED; OR IN ANY STATE, COUNTY, OR
MUNICIPAL COURT IN THE COUNTY OR CITY IN WHICH SAID ASSOCIATION IS
LOCATED, HAVING JURISDICTION IN SIMILAR CASES: PROVIDED, HOWEVER, THAT
ALL PROCEEDINGS TO ENJOIN THE COMPTROLLER UNDER THIS ACT SHALL BE HAD
IN A CIRCUIT, DISTRICT, OR TERRITORIAL COURT OF THE UNITED STATES, HELD
IN THE DISTRICT IN WHICH THE ASSOCIATION IS LOCATED."  13 STAT. 116
117. 

3. SECTION 57 WAS OMITTED FROM TITLE 62, NATIONAL BANKS, IN THE
REVISED STATUTES OF 1873.  IT WAS ADDED TO SEC. 5198 OF TITLE 62,
NATIONAL BANKS, BY THE ACT OF FEBRUARY 18, 1875, C. 80, 18 STAT. 320. 

"SEC. 5198.  THE TAKING, RECEIVING, RESERVING, OR CHARGING A RATE OF
INTEREST GREATER THAN IS ALLOWED BY THE PRECEDING SECTION, WHEN
KNOWINGLY DONE, SHALL BE DEEMED A FORFEITURE OF THE ENTIRE INTEREST
WHICH THE NOTE, BILL, OR OTHER EVIDENCE OF DEBT CARRIES WITH IT, OR
WHICH HAS BEEN AGREED TO BE PAID THEREON.  IN CASE THE GREATER RATE OF
INTEREST HAS BEEN PAID, THE PERSON BY WHOM IT HAS BEEN PAID, OR HIS
LEGAL REPRESENTATIVES, MAY RECOVER BACK, IN AN ACTION IN THE NATURE OF
AN ACTION OF DEBT, TWICE THE AMOUNT OF THE INTEREST THUS PAID FROM THE
ASSOCIATION TAKING OR RECEIVING THE SAME; PROVIDED SUCH ACTION IS
COMMENCED WITHIN TWO YEARS FROM THE TIME THE USURIOUS TRANSACTION
OCCURRED.  THAT SUITS, ACTIONS, AND PROCEEDINGS AGAINST ANY ASSOCIATION
UNDER THIS TITLE MAY BE HAD IN ANY CIRCUIT, DISTRICT, OR TERRITORIAL
COURT OF THE UNITED STATES HELD WITHIN THE DISTRICT IN WHICH SUCH
ASSOCIATION MAY BE ESTABLISHED, OR IN ANY STATE, COUNTY, OR MUNICIPAL
COURT IN THE COUNTY OR CITY IN WHICH SAID ASSOCIATION IS LOCATED HAVING
JURISDICTION IN SIMILAR CASES." 

4.  THE PORTION OF SEC. 5198, REV. STAT. (1878), RELATING TO SUITS IN
FEDERAL AND STATE COURTS, DERIVED FROM SEC. 57 OF THE 1864 ACT, NOW
APPEARS AS 12 U.S.C. SEC. 94: 

"SEC. 94.  VENUE OF SUITS. 

"ACTIONS AND PROCEEDINGS AGAINST ANY ASSOCIATION UNDER THIS CHAPTER
MAY BE HAD IN ANY DISTRICT OR TERRITORIAL COURT OF THE UNITED STATES
HELD WITHIN THE DISTRICT IN WHICH SUCH ASSOCIATION MAY BE ESTABLISHED,
OR IN ANY STATE, COUNTY, OR MUNICIPAL COURT IN THE COUNTY OR CITY IN
WHICH SAID ASSOCIATION IS LOCATED HAVING JURISDICTION IN SIMILAR
CASES."    TITLE 12 HAS NOT AS YET BEEN ENACTED INTO POSITIVE LAW. 

5.  REVISED STATUTES OF 1873, TITLE 13, THE JUDICIARY, C. 3, DISTRICT
COURTS - JURISDICTION. 

"SEC. 563.  THE DISTRICT COURTS SHALL HAVE JURISDICTION AS FOLLOWS:
...  FIFTEENTH.  OF ALL SUITS BY OR AGAINST ANY ASSOCIATION ESTABLISHED
UNDER ANY LAW PROVIDING FOR NATIONAL BANKING ASSOCIATIONS WITHIN THE
DISTRICT FOR WHICH THE COURT IS HELD." 

REVISED STATUTES OF 1873, TITLE 13, THE JUDICIARY, C. 7, CIRCUIT
COURT - JURISDICTION.    "SEC. 629.  THE CIRCUIT COURTS SHALL HAVE
ORIGINAL JURISDICTION AS FOLLOWS:  ...  TENTH.  OF ALL SUITS BY OR
AGAINST ANY BANKING ASSOCIATION ESTABLISHED IN THE DISTRICT FOR WHICH
THE COURT IS HELD, UNDER ANY LAW PROVIDING FOR NATIONAL BANKING
ASSOCIATIONS." 

THESE PROVISIONS WERE DERIVED FROM THAT PART OF SEC. 57 OF THE 1864
ACT WHICH CONFERRED JURISDICTION ON THE FEDERAL COURTS. 

6.  ACT OF JULY 12, 1882, C. 290, 22 STAT. 162, AN ACT TO ENABLE
NATIONAL BANKING ASSOCIATIONS TO EXTEND THEIR CORPORATE EXISTENCE, AND
FOR OTHER PURPOSES.  SECTION 4 OF THAT ACT CONTAINED THE FOLLOWING
PROVISO: 

"  ...  PROVIDED, HOWEVER, THAT THE JURISDICTION FOR SUITS HEREAFTER
BROUGHT BY OR AGAINST ANY ASSOCIATION ESTABLISHED UNDER ANY LAW
PROVIDING FOR NATIONAL-BANKING ASSOCIATIONS, EXCEPT SUITS BETWEEN THEM
AND THE UNITED STATES, OR ITS OFFICERS AND AGENTS, SHALL BE THE SAME
AS, AND NOT OTHER THAN, THE JURISDICTION FOR SUITS BY OR AGAINST BANKS
NOT ORGANIZED UNDER ANY LAW OF THE UNITED STATES WHICH DO OR MIGHT DO
BANKING BUSINESS WHERE SUCH NATIONAL-BANKING ASSOCIATIONS MAY BE DOING
BUSINESS WHEN SUCH SUITS MAY BE BEGUN:  AND ALL LAWS AND PARTS OF LAWS
OF THE UNITED STATES INCONSISTENT WITH THIS PROVISO BE, AND THE SAME
ARE HEREBY, REPEALED."  (FN1) 22 STAT. 163. 

7.  ACT OF MARCH 3, 1887, C. 373, AS AMENDED BY THE ACT OF AUGUST 13,
1888, C. 866. 

"SEC. 4.  THAT ALL NATIONAL BANKING ASSOCIATIONS ESTABLISHED UNDER
THE LAWS OF THE UNITED STATES SHALL, FOR THE PURPOSES OF ALL ACTIONS BY
OR AGAINST THEM, REAL, PERSONAL, OR MIXED, AND ALL SUITS IN EQUITY, BE
DEEMED CITIZENS OF THE STATES IN WHICH THEY ARE RESPECTIVELY LOCATED;
AND IN SUCH CASES THE CIRCUIT AND DISTRICT COURTS SHALL NOT HAVE
JURISDICTION OTHER THAN SUCH AS THEY WOULD HAVE IN CASES BETWEEN
INDIVIDUAL CITIZENS OF THE SAME STATE. 

"THE PROVISIONS OF THIS SECTION SHALL NOT BE HELD TO AFFECT THE
JURISDICTION OF THE COURTS OF THE UNITED STATES IN CASES COMMENCED BY
THE UNITED STATES OR BY DIRECTION OF ANY OFFICER THEREOF, OR CASES FOR
WINDING UP THE AFFAIRS OF ANY SUCH BANK."  (FN2)  25 STAT. 436. 

8. 28 U.S.C. SEC. 1348 CONTAINS THE PRESENT VERSION OF THE MATTERS
COVERED IN THE ACTS OF 1882, 1887 AND 1888: 

"SEC. 1348.  BANKING ASSOCIATION AS PARTY. 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION COMMENCED BY THE UNITED STATES, OR BY DIRECTION OF ANY OFFICER
THEREOF, AGAINST ANY NATIONAL BANKING ASSOCIATION, ANY CIVIL ACTION TO
WIND UP THE AFFAIRS OF ANY SUCH ASSOCIATION, AND ANY ACTION BY A
BANKING ASSOCIATION ESTABLISHED IN THE DISTRICT FOR WHICH THE COURT IS
HELD, UNDER CHAPTER 2 OF TITLE 12, TO ENJOIN THE COMPTROLLER OF THE
CURRENCY, OR ANY RECEIVER ACTING UNDER HIS DIRECTION, AS PROVIDED BY
SUCH CHAPTER. 

"ALL NATIONAL BANKING ASSOCIATIONS SHALL, FOR THE PURPOSES OF ALL
OTHER ACTIONS BY OR AGAINST THEM, BE DEEMED CITIZENS OF THE STATES IN
WHICH THEY ARE RESPECTIVELY LOCATED." 

FN1  THE PROVISO TO SEC. 4 OF THE ACT OF 1882 IS INCLUDED IN THE
SUPPLEMENT TO THE REVISED STATUTES AT 354 (2D ED. 1891), DESPITE THE
APPARENT DUPLICATION OF THE ACTS OF 1887 AND 1888, APPEARING AT 614. 
IT DOES NOT APPEAR IN THE 1925 U.S.C.  THE FIRST OFFICIAL RESTATEMENT
SINCE 1878 OF ALL UNITED STATES STATUTES PRESUMPTIVELY IN EFFECT,
EVIDENTLY BECAUSE THE COMMITTEE ON REVISION CITED THE ENTIRE 1882 ACT
AS REPEALED, 44 STAT. 1833, BY THE ACT OF JULY 1, 1922, C. 257, SEC. 2,
42 STAT. 767.  WHEN THE 1948 CODIFICATION OF TITLE 28 WAS ENACTED, THE
PROVISO TO SEC. 4 OF THE ACT OF 1882 WAS EXPRESSLY REPEALED.  62 STAT.
992, SEC. 39 (1948). 

FN2  THE ACTS OF 1887 AND 1888 WERE REPEALED WHEN THE 1911
CODIFICATION OF THE JUDICIARY AND JUDICIAL PROCEDURE PROVISIONS WAS
ENACTED.  ACT OF MARCH 3, 1911, C. 231, SEC. 297, 36 STAT. 1168.  THESE
PROVISIONS BECAME SEC. 24 OF THE JUDICIAL CODE OF 1911, 28 U.S.C.
(1940 ED.)  SEC.  41(16), AND THEN SEC. 1348 OF TITLE 28 ENACTED IN
1948. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT'S OPINION IN THESE APPEALS, AND SOME OF THE THINGS SAID IN
CONSTRUCTION LABORERS V. CURRY, ANTE, P. 542, CUT DEEPLY INTO THE
STATUTORY REQUIREMENT OF "FINALITY" LIMITING OUR JURISDICTION TO REVIEW
STATE COURT JUDGMENTS.  (FN1) 

THAT REQUIREMENT IS MORE THAN A TECHNICAL RULE OF PROCEDURE, YIELDING
WHEN NEED BE TO THE EXIGENCIES OF PARTICULAR SITUATIONS.  RATHER, IT IS
A LONG-STANDING AND HEALTHY FEDERAL POLICY THAT PROTECTS LITIGANTS AND
COURTS FROM THE DISRUPTIONS OF PIECEMEAL REVIEW AND FORECLOSES THIS
COURT FROM PASSING ON CONSTITUTIONAL ISSUES THAT MAY BE DISSIPATED BY
THE FINAL OUTCOME OF A CASE, THUS HELPING TO KEEP TO A MINIMUM
UNDESIRABLE FEDERAL-STATE CONFLICTS.  IN THIS INSTANCE IT PRECLUDES, IN
MY OPINION, THE EXERCISE OF OUR APPELLATE JURISDICTION AT THIS STAGE OF
THE PROCEEDINGS. 

THE STATE COURT JUDGMENTS NOW SOUGHT TO BE REVIEWED ARE NOTHING MORE
THAN A DETERMINATION THAT VENUE WAS PROPERLY LAID IN THE COUNTY WHERE
SUIT AGAINST THESE APPELLANTS WAS BROUGHT.  SUCH A DETERMINATION, BEING
TANTAMOUNT TO A DENIAL OF A MOTION TO DISMISS, IS A CLASSIC EXAMPLE OF
AN INTERLOCUTORY RULING THAT IS ONLY A STEP TOWARDS ULTIMATE
DISPOSITION AND IS NOT IN ITSELF REVIEWABLE AS A FINAL JUDGMENT.  SEE
CATLIN V. UNITED STATES, 324 U.S. 229; 6 MOORE, FEDERAL PRACTICE PARAS.
54.12(1), 54.14; SEE ALSO CLINTON FOODS V. UNITED STATES, 188 F.2D 289,
291-292, AND CASES CITED THEREIN.  (FN2)  IT FITS SQUARELY WITHIN THE
GENERAL RULE THAT A JUDGMENT IS NOT FINAL UNLESS IT TERMINATES THE
LITIGATION AND LEAVES NOTHING TO BE DONE BUT TO ENFORCE BY EXECUTION
WHAT HAS BEEN DEMANDED.  SEE PARR V. UNITED STATES, 351 U.S. 513. 

IT IS TRUE THAT SEVERAL SPECIFIC, AND NARROWLY CIRCUMSCRIBED,
EXCEPTIONS TO THIS GENERAL RULE HAVE BEEN DEVELOPED IN ORDER TO DEAL
WITH EXTRAORDINARY SITUATIONS WHERE A JUDGMENT IS FINAL IN SUBSTANCE
ALTHOUGH NOT IN FORM.  BUT THESE APPEALS DO NOT FALL WITHIN ANY OF
THESE EXCEPTIONS. 

THUS THIS IS NOT A SITUATION IN WHICH WHAT REMAINS TO BE DONE IN THE
STATE COURTS IS A MERE FORMALITY, OR IN WHICH THE APPELLANTS CONCEDE
THAT THEIR WHOLE CASE MUST STAND OR FALL ON THE FEDERAL CLAIM.  COMPARE
RICHFIELD OIL CORP. V. STATE BOARD OF EQUALIZATION, 329 U.S. 69; POPE
V. ATLANTIC COAST LINE R. CO., 345 U.S. 379; CONSTRUCTION LABORERS V.
CURRY, ANTE, P. 542.  QUITE THE CONTRARY, APPELLANTS VIGOROUSLY DENY
THEIR LIABILITY ON THE MERITS OF THE APPELLEE'S CLAIM. 

NOR ARE THESE APPEALS LIKE RADIO STATION WOW V. JOHNSON, 326 U.S.
120, WHERE THE CHALLENGED ORDER REQUIRED AN IMMEDIATE TRANSFER OF
PROPERTY, AND WHERE THE REMAINING MATTERS LEFT TO BE DISPOSED OF IN THE
STATE COURT WERE WHOLLY UNRELATED, WOULD ALMOST CERTAINLY HAVE RAISED
NO FEDERAL QUESTION, AND COULD NOT HAVE MOOTED THE QUESTION SOUGHT TO
BE REVIEWED.  HERE, A VICTORY FOR APPELLANTS ON THE MERITS WOULD
CLEARLY MOOT THE FEDERAL QUESTION BEFORE US TODAY.  "IT IS OF COURSE
NOT OUR PROVINCE TO DISCOURAGE APPEALS.  BUT FOR THE SOUNDEST OF
REASONS WE OUGHT NOT TO PASS ON CONSTITUTIONAL ISSUES BEFORE THEY HAVE
REACHED A DEFINITIVE STOP."  REPUBLIC NATURAL GAS CO. V. OKLAHOMA, 334
U.S. 62, 71. 

ON THE OTHER HAND, IF APPELLANTS LOST ON THE MERITS, THE VENUE
QUESTION RAISED IN THE PRESENT APPEALS WOULD THEN BE OPEN FOR REVIEW BY
THIS COURT.  HENCE THE CONTROVERSY IS WHOLLY DIFFERENT FROM COHEN V.
BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541, 546, WHERE THE
CHALLENGED ORDER WOULD NOT HAVE BEEN MERGED IN THE FINAL JUDGMENT AND
WHERE, UNLESS IMMEDIATE REVIEW HAD BEEN GRANTED, NO APPELLATE
DETERMINATION OF THE RIGHT CLAIMED COULD EVER HAVE BEEN OBTAINED. 

FAILING TO COME WITHIN ANY OF THESE LIMITED EXCEPTIONS, APPELLANTS
FALL BACK ON THE FAMILIAR ASSERTION THAT THEY SHOULD NOT BE SUBJECTED
TO A BURDENSOME TRIAL IN THE WRONG FORUM, A CLAIM WHICH THE COURT FINDS
COMPELLING.  BUT SURELY SUCH A CLAIM CANNOT BE ACCEPTED, FOR THERE IS A
LARGE VARIETY OF SITUATIONS IN WHICH A RULING ON A PRELIMINARY MATTER
WILL DETERMINE WHETHER OR NOT THE CASE IS TO CONTINUE; YET A DECISION
THAT DOES NOT DEFINITIVELY TERMINATE THE CASE IS PLAINLY NOT FINAL.  TO
RELY ON THE HARDSHIP OF BEING SUBJECTED TO TRIAL IS TO DO AWAY WITH THE
DISTINCTION BETWEEN INTERLOCUTORY AND FINAL ORDERS.  IT IS FOR THIS
REASON THAT THE COURT HAS ALWAYS HELD THAT THE HAZARD OF BEING
SUBJECTED TO TRIAL DOES NOT INVEST A PRELIMINARY RULING WITH THE
FINALITY REQUISITE TO APPEAL.  E.G., PARR V. UNITED STATES, 351 U.S.
513, 519-520. 

THIS IS NOT A CASE OF FIRST IMPRESSION.  IN CINCINNATI STREET R. CO.
V. SNELL, 179 U.S. 395, THE RAILWAY COMPANY SOUGHT TO APPEAL FROM A
DETERMINATION BY THE HIGHEST COURT OF THE STATE DIRECTING A CHANGE OF
VENUE AND REMANDING THE CASE FOR FURTHER PROCEEDINGS.  THE RAILWAY
COMPANY CONTENDED THAT THE STATE LAW UNDER WHICH THE CHANGE OF VENUE
HAD BEEN ORDERED WAS UNCONSTITUTIONAL.  THE CASE IS THUS SQUARELY IN
POINT, SINCE THE APPELLANTS HERE ARE ALSO CHALLENGING THE
CONSTITUTIONALITY OF THE APPLICATION OF LOCAL VENUE PROVISIONS.  THIS
COURT UNANIMOUSLY DISMISSED THE WRIT OF ERROR FOR LACK OF FINALITY,
STATING: 

"IT IS TRUE THAT THE ORDER APPEALED FROM FINALLY ADJUDGES THAT A
CHANGE OF VENUE SHOULD HAVE BEEN ALLOWED; BUT THE SAME COMMENT MAY BE
MADE UPON DOZENS OF INTERLOCUTORY ORDERS MADE IN THE PROGRESS OF A
CAUSE.  INDEED, SCARCELY AN ORDER IS IMAGINABLE WHICH DOES NOT FINALLY
DISPOSE OF SOME PARTICULAR POINT ARISING IN THE CASE; BUT THAT DOES NOT
JUSTIFY A REVIEW OF SUCH ORDER, UNTIL THE ACTION ITSELF HAS BEEN
FINALLY DISPOSED OF.  IF EVERY ORDER WERE FINAL, WHICH FINALLY PASSES
UPON SOME MOTION MADE BY ONE OR THE OTHER OF THE PARTIES TO A CAUSE, IT
MIGHT IN SOME CASES REQUIRE A DOZEN WRITS OF ERROR TO DISPOSE FINALLY
OF THE CASE."  179 U.S., AT 397. 

THE CINCINNATI CASE ALSO SHOWS THE INVALIDITY OF THE ARGUMENT OF
THESE APPELLANTS THAT THEY MAY BE SPARED A TRIAL IF THEIR VENUE CLAIM
IS PRESENTLY SUSTAINED.  FOR THE COURT IN CINCINNATI WAS UNMOVED BY THE
CIRCUMSTANCE THAT THE RAILWAY COMPANY THERE HAD ALREADY WON A JURY
VERDICT WHICH HAD BEEN SET ASIDE BY THE STATE COURT BECAUSE OF FAULTY
VENUE.  A FORTIORI, IN A PROCEEDING WHERE THE ACTION HAS NOT YET BEEN
TRIED, THE COURT SHOULD BE DEAF TO THE SIMILAR CLAIMS OF THESE
APPELLANTS. 

THE COURT'S DECISION IN THESE APPEALS THROWS THE LAW OF FINALITY INTO
A STATE OF GREAT UNCERTAINTY AND WILL, I AM AFRAID, TEND TO INCREASE
FUTURE EFFORTS AT PIECEMEAL REVIEW.  (FN3) 

THESE APPEALS SHOULD BE DISMISSED. 

FN1  28 U.S.C. SEC. 1257 LIMITS THE APPELLATE JURISDICTION OF THIS
COURT TO REVIEW OF "FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST
COURT OF A STATE IN WHICH A DECISION COULD BE HAD." 

FN2  AS THE COURT STATED IN THE CATLIN CASE, 324 U.S., AT 236:
"DENIAL OF A MOTION TO DISMISS, EVEN WHEN THE MOTION IS BASED UPON
JURISDICTIONAL GROUNDS, IS NOT IMMEDIATELY REVIEWABLE  ...  . CERTAINLY
THIS IS TRUE WHENEVER THE QUESTION MAY BE SAVED FOR DISPOSITION UPON
REVIEW OF FINAL JUDGMENT DISPOSING OF ALL ISSUES INVOLVED IN THE
LITIGATION  ...  ." 

FN3  THE COURT APPEARS TO SUGGEST THAT THESE APPEALS ARE UNIQUE
BECAUSE THE DECISIONS WERE APPEALABLE UNDER STATE LAW AND BECAUSE
NATIONAL BANKS ARE MAKING A SUBSTANTIAL CLAIM OF A CONFLICT BETWEEN A
FEDERAL AND A STATE STATUTE.  BUT I FAIL TO SEE HOW THE APPEALABILITY
OF INTERLOCUTORY ORDERS UNDER STATE LAW, THE IDENTITY OF THE
APPELLANTS, OR THE SUBSTANTIALITY OF THE FEDERAL CLAIM ASSERTED CAN
HAVE ANY BEARING ON WHETHER THE JUDGMENTS APPEALED FROM ARE FINAL. 
..END :
























STUART V. WILSON 371 U.S. 576 


NO. 543.  DECIDED JANUARY 21, 1963.  - 211 F. SUPP. 700, AFFIRMED. 


STUART ET AL. V. WILSON, ATTORNEY GENERAL OF TEXAS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF TEXAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















BARDY V. UNITED STATES 371 U.S. 576 


NO. 603.  DECIDED JANUARY 21, 1963.  - APPEAL DISMISSED. 


BARDY V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 
..END :


















MISSOURI, JOHNSON V. CLAY 371 U.S. 577 


NO. 607.  DECIDED JANUARY 21, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  359 S.W.2D 790. 


MISSOURI EX REL. JOHNSON, ADMINISTRATRIX, ET AL. V. CLAY, SUPERINTENDENT
OF DIVISION OF INSURANCE, ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















BENDIX CORPORATION V. RADIO POSITION FINDING CORP. 371 U.S. 577 


NO. 645.  DECIDED JANUARY 21, 1963.  - 205 F. SUPP. 850, AFFIRMED. 


BENDIX CORPORATION V. RADIO POSITION FINDING CORP. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 
..END :


















JONES V. CUNNINGHAM 371 U.S. 236 


NO. 77.  ARGUED DECEMBER 3, 1962.  - DECIDED JANUARY 14, 1963.  - 294
F.2D 608, REVERSED. 


1.  A STATE PRISONER WHO HAS BEEN PLACED ON PAROLE, UNDER THE "CUSTODY
AND CONTROL" OF A PAROLE BOARD, IS "IN CUSTODY" WITHIN THE MEANING OF
28 U.S.C. SEC. 2241; AND, ON HIS PETITION FOR A WRIT OF HABEAS CORPUS,
A FEDERAL DISTRICT COURT HAS JURISDICTION TO HEAR AND DETERMINE HIS
CHARGE THAT HIS STATE SENTENCE WAS IMPOSED IN VIOLATION OF THE FEDERAL
CONSTITUTION.  PP.  236-243. 

2.  THE FACT THAT SUCH A PETITIONER HAS LEFT THE TERRITORIAL
JURISDICTION OF THE DISTRICT COURT DOES NOT DEPRIVE THAT COURT OF
JURISDICTION WHEN THE MEMBERS OF THE PAROLE BOARD ARE STILL WITHIN ITS
JURISDICTION AND CAN BE REQUIRED TO DO ALL THINGS NECESSARY TO BRING
THE CASE TO A FINAL ADJUDICATION.  PP. 243-244. 

JONES V. CUNNINGHAM, PENITENTIARY SUPERINTENDENT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A UNITED STATES DISTRICT COURT HAS JURISDICTION UNDER 28 U.S.C. SEC.
2241 TO GRANT A WRIT OF HABEAS CORPUS "TO A PRISONER  ...  IN CUSTODY
IN VIOLATION OF THE CONSTITUTION  ...  OF THE UNITED STATES."  THE
QUESTION IN THIS CASE IS WHETHER A STATE PRISONER WHO HAS BEEN PLACED
ON PAROLE IS "IN CUSTODY" WITHIN THE MEANING OF THIS SECTION SO THAT A
FEDERAL DISTRICT COURT HAS JURISDICTION TO HEAR AND DETERMINE HIS
CHARGE THAT HIS STATE SENTENCE WAS IMPOSED IN VIOLATION OF THE UNITED
STATES CONSTITUTION.  (FN1) 

IN 1953 PETITIONER WAS CONVICTED IN A VIRGINIA STATE COURT OF AN
OFFENSE REQUIRING CONFINEMENT IN THE STATE PENITENTIARY, AND AS THIS
WAS HIS THIRD SUCH OFFENSE HE WAS SENTENCED TO SERVE 10 YEARS IN THE
STATE PENITENTIARY.  IN 1961 HE FILED THIS PETITION FOR HABEAS CORPUS
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA, ALLEGING THAT HIS THIRD-OFFENDER SENTENCE WAS BASED IN PART
UPON A 1946 LARCENY CONVICTION WHICH WAS INVALID BECAUSE HIS FEDERAL
CONSTITUTIONAL RIGHT TO COUNSEL HAD BEEN DENIED AT THE 1946 TRIAL.  THE
DISTRICT COURT DISMISSED THE PETITION BUT THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT GRANTED A CERTIFICATE OF PROBABLE CAUSE AND LEAVE TO
APPEAL IN FORMA PAUPERIS.  SHORTLY BEFORE THE CASE CAME ON FOR ORAL
ARGUMENT BEFORE THE COURT OF APPEALS PETITIONER WAS PAROLED BY THE
VIRGINIA PAROLE BOARD.  THE PAROLE ORDER PLACED PETITIONER IN THE
"CUSTODY AND CONTROL" OF THE PAROLE BOARD AND DIRECTED HIM TO LIVE WITH
HIS AUNT AND UNCLE IN LAFAYETTE, GEORGIA.  IT PROVIDED THAT HIS PAROLE
WAS SUBJECT TO REVOCATION OR MODIFICATION AT ANY TIME BY THE PAROLE
BOARD AND THAT PETITIONER COULD BE ARRESTED AND RETURNED TO PRISON FOR
CAUSE.  AMONG OTHER RESTRICTIONS AND CONDITIONS, PETITIONER WAS
REQUIRED TO OBTAIN THE PERMISSION OF HIS PAROLE OFFICER TO LEAVE THE
COMMUNITY, TO CHANGE RESIDENCE, OR TO OWN OR OPERATE A MOTOR VEHICLE. 
HE WAS FURTHER REQUIRED TO MAKE MONTHLY REPORTS TO HIS PAROLE OFFICER,
TO PERMIT THE OFFICER TO VISIT HIS HOME OR PLACE OF EMPLOYMENT AT ANY
TIME, AND TO FOLLOW THE OFFICER'S INSTRUCTIONS AND ADVICE.  WHEN
PETITIONER WAS PLACED ON PAROLE, THE SUPERINTENDENT OF THE VIRGINIA
STATE PENITENTIARY, WHO WAS THE ONLY RESPONDENT IN THE CASE, ASKED THE
COURT OF APPEALS TO DISMISS THE CASE AS MOOT SINCE PETITIONER WAS NO
LONGER IN HIS CUSTODY.  PETITIONER OPPOSED THE MOTION TO DISMISS BUT,
IN VIEW OF HIS PAROLE TO THE CUSTODY OF THE VIRGINIA PAROLE BOARD,
MOVED TO ADD ITS MEMBERS AS RESPONDENTS.  THE COURT OF APPEALS
DISMISSED, HOLDING THAT THE CASE WAS MOOT AS TO THE SUPERINTENDENT
BECAUSE HE NO LONGER HAD CUSTODY OR CONTROL OVER PETITIONER "AT LARGE
ON PAROLE."  IT REFUSED TO PERMIT THE PETITIONER TO ADD THE PAROLE
BOARD MEMBERS AS RESPONDENTS BECAUSE THEY DID NOT HAVE "PHYSICAL
CUSTODY" OF THE PERSON OF PETITIONER AND WERE THEREFORE NOT PROPER
PARTIES.  294 F.2D 608.  WE GRANTED CERTIORARI TO DECIDE WHETHER A
PAROLEE IS "IN CUSTODY" WITHIN THE MEANING OF 28 U.S.C.  SEC. 2241 AND
IS THEREFORE ENTITLED TO INVOKE THE HABEAS CORPUS JURISDICTION OF THE
UNITED STATES DISTRICT COURT.  369 U.S. 809. 

THE HABEAS CORPUS JURISDICTIONAL STATUTE IMPLEMENTS THE
CONSTITUTIONAL COMMAND THAT THE WRIT OF HABEAS CORPUS BE MADE
AVAILABLE.  (FN2)  WHILE LIMITING ITS AVAILABILITY TO THOSE "IN
CUSTODY," THE STATUTE DOES NOT ATTEMPT TO MARK THE BOUNDARIES OF
"CUSTODY" NOR IN ANY WAY OTHER THAN BY USE OF THAT WORD ATTEMPT TO
LIMIT THE SITUATIONS IN WHICH THE WRIT CAN BE USED.  TO DETERMINE
WHETHER HABEAS CORPUS COULD BE USED TO TEST THE LEGALITY OF A GIVEN
RESTRAINT ON LIBERTY, THIS COURT HAS GENERALLY LOOKED TO COMMON-LAW
USAGES AND THE HISTORY OF HABEAS CORPUS BOTH IN ENGLAND AND IN THIS
COUNTRY.  (FN3) 

IN ENGLAND, AS IN THE UNITED STATES, THE CHIEF USE OF HABEAS CORPUS
HAS BEEN TO SEEK THE RELEASE OF PERSONS HELD IN ACTUAL, PHYSICAL
CUSTODY IN PRISON OR JAIL.  YET ENGLISH COURTS HAVE LONG RECOGNIZED THE
WRIT AS A PROPER REMEDY EVEN THOUGH THE RESTRAINT IS SOMETHING LESS
THAN CLOSE PHYSICAL CONFINEMENT.  FOR EXAMPLE, THE KING'S BENCH AS
EARLY AS 1722 HELD THAT HABEAS CORPUS WAS APPROPRIATE TO QUESTION
WHETHER A WOMAN ALLEGED TO BE THE APPLICANT'S WIFE WAS BEING
CONSTRAINED BY HER GUARDIANS TO STAY AWAY FROM HER HUSBAND AGAINST HER
WILL.  (FN4)  THE TEST USED WAS SIMPLY WHETHER SHE WAS "AT HER LIBERTY
TO GO WHERE SHE PLEASED."  (FN5)  SO ALSO, HABEAS CORPUS WAS USED IN
1763 TO REQUIRE THE PRODUCTION IN COURT OF AN INDENTURED 18-YEAR-OLD
GIRL WHO HAD BEEN ASSIGNED BY HER MASTER TO ANOTHER MAN "FOR BAD
PURPOSES."  (FN6)  ALTHOUGH THE REPORT INDICATES NO RESTRAINT ON THE
GIRL OTHER THAN THE COVENANTS OF THE INDENTURE, THE KING'S BENCH
ORDERED THAT SHE "BE DISCHARGED FROM ALL RESTRAINT, AND BE AT LIBERTY
TO GO WHERE SHE WILL."  (FN7)  AND MORE THAN A CENTURY AGO AN ENGLISH
COURT PERMITTED A PARENT TO USE HABEAS CORPUS TO OBTAIN HIS CHILDREN
FROM THE OTHER PARENT, EVEN THOUGH THE CHILDREN WERE "NOT UNDER
IMPRISONMENT, RESTRAINT, OR DURESS OF ANY KIND."  (FN8) THESE EXAMPLES
SHOW CLEARLY THAT ENGLISH COURTS HAVE NOT TREATED THE HABEAS CORPUS ACT
OF 1679, 31 CAR.  II, C. 2 - THE FORERUNNER OF ALL HABEAS CORPUS ACTS -
AS PERMITTING RELIEF ONLY TO THOSE IN JAIL OR LIKE PHYSICAL
CONFINEMENT. 

SIMILARLY, IN THE UNITED STATES THE USE OF HABEAS CORPUS HAS NOT BEEN
RESTRICTED TO SITUATIONS IN WHICH THE APPLICANT IS IN ACTUAL, PHYSICAL
CUSTODY.  THIS COURT ITSELF HAS REPEATEDLY HELD THAT HABEAS CORPUS IS
AVAILABLE TO AN ALIEN SEEKING ENTRY INTO THE UNITED STATES, (FN9)
ALTHOUGH IN THOSE CASES EACH ALIEN WAS FREE TO GO ANYWHERE ELSE IN THE
WORLD.  "HIS MOVEMENTS," THIS COURT SAID, "ARE RESTRAINED BY AUTHORITY
OF THE UNITED STATES, AND HE MAY BY HABEAS CORPUS TEST THE VALIDITY OF
HIS EXCLUSION."  (FN10)  HABEAS CORPUS HAS ALSO BEEN CONSISTENTLY
REGARDED BY LOWER FEDERAL COURTS AS THE APPROPRIATE PROCEDURAL VEHICLE
FOR QUESTIONING THE LEGALITY OF AN INDUCTION OR ENLISTMENT INTO THE
MILITARY SERVICE.  (FN11)  THE RESTRAINT, OF COURSE, IS CLEAR IN SUCH
CASES, BUT IT IS FAR INDEED FROM THE KIND OF "PRESENT PHYSICAL CUSTODY"
THOUGHT BY THE COURT OF APPEALS TO BE REQUIRED.  AGAIN, IN THE STATE
COURTS, AS IN ENGLAND, HABEAS CORPUS HAS BEEN WIDELY USED BY PARENTS
DISPUTING OVER WHICH IS THE FIT AND PROPER PERSON TO HAVE CUSTODY OF
THEIR CHILD, (FN12) ONE OF WHICH WE HAD BEFORE US ONLY A FEW WEEKS
AGO.  (FN13)  HISTORY, USAGE, AND PRECEDENT CAN LEAVE NO DOUBT THAT,
BESIDES PHYSICAL IMPRISONMENT, THERE ARE OTHER RESTRAINTS ON A MAN'S
LIBERTY, RESTRAINTS NOT SHARED BY THE PUBLIC GENERALLY, WHICH HAVE BEEN
THOUGHT SUFFICIENT IN THE ENGLISH-SPEAKING WORLD TO SUPPORT THE
ISSUANCE OF HABEAS CORPUS. 

RESPONDENT STRONGLY URGES UPON US THAT HOWEVER NUMEROUS THE
SITUATIONS IN WHICH HABEAS CORPUS WILL LIE PRIOR DECISIONS OF THIS
COURT CONCLUSIVELY DETERMINE THAT THE LIBERTY OF A PERSON RELEASED ON
PAROLE IS NOT SO RESTRAINED AS TO PERMIT THE PAROLEE TO ATTACK HIS
CONVICTION IN HABEAS CORPUS PROCEEDINGS.  IN SOME OF THOSE CASES, UPON
WHICH THE COURT OF APPEALS IN THIS CASE ALSO RELIED, THE PETITIONER HAD
BEEN COMPLETELY AND UNCONDITIONALLY RELEASED FROM CUSTODY; (FN14) SUCH
CASES ARE OBVIOUSLY NOT CONTROLLING HERE WHERE PETITIONER HAS NOT BEEN
UNCONDITIONALLY RELEASED.  OTHER CASES RELIED UPON BY RESPONDENT HELD
MERELY THAT THE DISPUTE BETWEEN THE PETITIONER AND THE NAMED RESPONDENT
IN EACH CASE HAD BECOME MOOT BECAUSE THAT PARTICULAR RESPONDENT NO
LONGER HELD THE PETITIONER IN HIS CUSTODY.  (FN15)  SO HERE, AS IN THE
CASES LAST MENTIONED, WHEN THE PETITIONER WAS PLACED ON PAROLE, HIS
CAUSE AGAINST THE SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY
BECAME MOOT BECAUSE THE SUPERINTENDENT'S CUSTODY HAD COME TO AN END, AS
MUCH AS IF HE HAD RESIGNED HIS POSITION WITH THE STATE.  BUT IT DOES
NOT FOLLOW THAT THIS PETITIONER IS WHOLLY WITHOUT REMEDY.  HIS MOTION
TO ADD THE MEMBERS OF THE VIRGINIA PAROLE BOARD AS PARTIES RESPONDENT
SQUARELY RAISES THE QUESTION, NOT PRESENTED IN OUR EARLIER CASES, OF
WHETHER THE PAROLE BOARD NOW HOLDS THE PETITIONER IN ITS "CUSTODY"
WITHIN THE MEANING OF 28 U.S.C. SEC. 2241 SO THAT HE CAN BY HABEAS
CORPUS REQUIRE THE PAROLE BOARD TO POINT TO AND DEFEND THE LAW BY WHICH
IS JUSTIFIES ANY RESTRAINT ON HIS LIBERTY. 

THE VIRGINIA STATUTE PROVIDES THAT A PAROLED PRISONER SHALL BE
RELEASED "INTO THE CUSTODY OF THE PAROLE BOARD," (FN16) AND THE PAROLE
ORDER ITSELF PLACES PETITIONER "UNDER THE CUSTODY AND CONTROL OF THE
VIRGINIA PAROLE BOARD."  AND IN FACT, AS WELL AS IN THEORY, (FN17) THE
CUSTODY AND CONTROL OF THE PAROLE BOARD INVOLVE SIGNIFICANT RESTRAINTS
ON PETITIONER'S LIBERTY BECAUSE OF HIS CONVICTION AND SENTENCE, WHICH
ARE IN ADDITION TO THOSE IMPOSED BY THE STATE UPON THE PUBLIC
GENERALLY.  PETITIONER IS CONFINED BY THE PAROLE ORDER TO A PARTICULAR
COMMUNITY, HOUSE, AND JOB AT THE SUFFERANCE OF HIS PAROLE OFFICER.  HE
CANNOT DRIVE A CAR WITHOUT PERMISSION.  HE MUST PERIODICALLY REPORT TO
HIS PAROLE OFFICER, PERMIT THE OFFICER TO VISIT HIS HOME AND JOB AT ANY
TIME, AND FOLLOW THE OFFICER'S ADVICE.  HE IS ADMONISHED TO KEEP GOOD
COMPANY AND GOOD HOURS, WORK REGULARLY, KEEP AWAY FROM UNDESIRABLE
PLACES, AND LIVE A CLEAN, HONEST, AND TEMPERATE LIFE.  PETITIONER MUST
NOT ONLY FAITHFULLY OBEY THESE RESTRICTIONS AND CONDITIONS BUT HE MUST
LIVE IN CONSTANT FEAR THAT A SINGLE DEVIATION, HOWEVER SLIGHT, MIGHT BE
ENOUGH TO RESULT IN HIS BEING RETURNED TO PRISON TO SERVE OUT THE VERY
SENTENCE HE CLAIMS WAS IMPOSED UPON HIM IN VIOLATION OF THE UNITED
STATES CONSTITUTION.   HE CAN BE REARRESTED AT ANY TIME THE BOARD OR
PAROLE OFFICER BELIEVES HE HAS VIOLATED A TERM OR CONDITION OF HIS
PAROLE, (FN18) AND HE MIGHT BE THROWN BACK IN JAIL TO FINISH SERVING
THE ALLEGEDLY INVALID SENTENCE WITH FEW, IF ANY, OF THE PROCEDURAL
SAFEGUARDS THAT NORMALLY MUST BE AND ARE PROVIDED TO THOSE CHARGED WITH
CRIME.  (FN19)  IT IS NOT RELEVANT THAT CONDITIONS AND RESTRICTIONS
SUCH AS THESE (FN20) MAY BE DESIRABLE AND IMPORTANT PARTS OF THE
REHABILITATIVE PROCESS; WHAT MATTERS IS THAT THEY SIGNIFICANTLY
RESTRAIN PETITIONER'S LIBERTY TO DO THOSE THINGS WHICH IN THIS COUNTRY
FREE MEN ARE ENTITLED TO DO.  SUCH RESTRAINTS ARE ENOUGH TO INVOKE THE
HELP OF THE GREAT WRIT.  OF COURSE, THAT WRIT ALWAYS COULD AND STILL
CAN REACH BEHIND PRISON WALLS AND IRON BARS.  BUT IT CAN DO MORE.  IT
IS NOT NOW AND NEVER HAS BEEN A STATIC, NARROW, FORMALISTIC REMEDY; ITS
SCOPE HAS GROWN TO ACHIEVE ITS GRAND PURPOSE - THE PROTECTION OF
INDIVIDUALS AGAINST EROSION OF THEIR RIGHT TO BE FREE FROM WRONGFUL
RESTRAINTS UPON THEIR LIBERTY.  WHILE PETITIONER'S PAROLE RELEASES HIM
FROM IMMEDIATE PHYSICAL IMPRISONMENT, IT IMPOSES CONDITIONS WHICH
SIGNIFICANTLY CONFINE AND RESTRAIN HIS FREEDOM; THIS IS ENOUGH TO KEEP
HIM IN THE "CUSTODY" OF THE MEMBERS OF THE VIRGINIA PAROLE BOARD WITHIN
THE MEANING OF THE HABEAS CORPUS STATUTE; IF HE CAN PROVE HIS
ALLEGATIONS THIS CUSTODY IS IN VIOLATION OF THE CONSTITUTION, AND IT
WAS THEREFORE ERROR FOR THE COURT OF APPEALS TO DISMISS HIS CASE AS
MOOT INSTEAD OF PERMITTING HIM TO ADD THE PAROLE BOARD MEMBERS AS
RESPONDENTS. 

RESPONDENT ALSO ARGUES THAT THE DISTRICT COURT HAD NO JURISDICTION
BECAUSE THE PETITIONER HAD LEFT THE TERRITORIAL CONFINES OF THE
DISTRICT.  BUT THIS CASE IS NOT LIKE AHRENS V. CLARK, 335 U.S. 188
(1948), UPON WHICH RESPONDENT RELIES, BECAUSE IN THAT CASE PETITIONERS
WERE NOT EVEN DETAINED IN THE DISTRICT WHEN THEY ORIGINALLY FILED THEIR
PETITION.  RATHER, THIS CASE IS CONTROLLED BY OUR DECISION IN EX PARTE
ENDO, 323 U.S. 283, 304-307 (1944), WHICH HELD THAT A DISTRICT COURT
DID NOT LOSE ITS JURISDICTION WHEN A HABEAS CORPUS PETITIONER WAS
REMOVED FROM THE DISTRICT SO LONG AS AN APPROPRIATE RESPONDENT WITH
CUSTODY REMAINED.  HERE THE MEMBERS OF THE PAROLE BOARD ARE STILL
WITHIN THE JURISDICTION OF THE DISTRICT COURT, AND THEY CAN BE REQUIRED
TO DO ALL THINGS NECESSARY TO BRING THE CASE TO A FINAL ADJUDICATION. 

THE CASE IS REVERSED AND REMANDED TO THE COURT OF APPEALS WITH
DIRECTIONS TO GRANT PETITIONER'S MOTION TO ADD THE MEMBERS OF THE
PAROLE BOARD AS RESPONDENTS AND PROCEED TO A DECISION ON THE MERITS OF
PETITIONER'S CASE.  REVERSED. 

FN1  PAROLE IN THIS CASE WAS GRANTED WHILE PETITIONER'S APPEAL WAS
PENDING IN THE COURT OF APPEALS. 

FN2  "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE
SUSPENDED, UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC
SAFETY MAY REQUIRE IT."  U.S. CONST., ART. I, SEC. 9. 

FN3  SEE, E.G., MCNALLY V. HILL, 293 U.S. 131, 136 (1934); EX PARTE
PARKS, 93 U.S. 18 (1876). 

FN4  REX V. CLARKSON, 1 STR.  444, 93 ENG. REP. 625 (K.B. 1722). 

FN5  ID., AT 445, 93 ENG. REP., AT 625. 

FN6  REX V. DELAVAL, 3 BURR.  1434, 97 ENG. REP. 913 (K.B. 1763). 

FN7  ID., AT 1437, 97 ENG. REP., AT 914. 

FN8  EARL OF WESTMEATH V. COUNTESS OF WESTMEATH, AS SET OUT IN A
REPORTER'S FOOTNOTE IN LYONS V. BLENKIN, 1 JAC.  245, 264, 37 ENG. REP.
842, 848 (CH. 1821); ACCORD EX PARTE M'CLELLAN, 1 DOWL.  81 (K.B.
1831).    FN9  E.G., BROWNELL V. TOM WE SHUNG, 352 U.S. 180, 183
(1956); SHAUGHNESSY V. UNITED STATES EX REL. MEZEI, 345 U.S. 206
(1953); UNITED STATES EX REL. KNAUFF V. SHAUGHNESSY, 338 U.S. 537
(1950); UNITED STATES V. JUNG AH LUNG, 124 U.S. 621, 626 (1888). 

FN10  SHAUGHNESSY V. UNITED STATES EX REL. MEZEI, SUPRA, NOTE 9, AT
213. 

FN11  E.G., EX PARTE FABIANI, 105 F. SUPP. 139 (D.C.E.D. PA. 1952);
UNITED STATES EX REL. STEINBERG V. GRAHAM, 57 F. SUPP. 938 (D.C.E.D.
ARK. 1944). 

FN12  E.G., BOARDMAN V. BOARDMAN, 135 CONN. 124, 138, 62 A.2D 521,
528 (1948); BARLOW V. BARLOW, 141 GA. 535, 536-537, 81 S.E. 433, 434
(1914); IN RE SWALL, 36 NEV. 171, 174, 134 P. 96, 97 (1913)("THE
QUESTION OF PHYSICAL RESTRAINT NEED BE GIVEN LITTLE OR NO CONSIDERATION
WHERE A LAWFUL RIGHT IS ASSERTED TO RETAIN POSSESSION OF THE CHILD"). 
SEE ALSO IN RE HOLLOPETER, 52 WASH. 41, 100 P. 159 (1909)(HUSBAND HELD
ENTITLED TO RELEASE OF HIS WIFE FROM RESTRAINT BY HER PARENTS); IN RE
CHACE, 26 R.I. 351, 358, 58 A. 978, 981 (1904)(WIFE HELD ENTITLED TO
HUSBAND'S SOCIETY FREE OF RESTRAINT BY HIS GUARDIAN). 

FN13  FORD V. FORD, 371 U.S. 187 (1962). 

FN14  PARKER V. ELLIS, 362 U.S. 574 (1960); ZIMMERMAN V. WALKER, 319
U.S. 744 (1943); TORNELLO V. HUDSPETH, 318 U.S. 792 (1943). 

FN15  UNITED STATES EX REL. LYNN V. DOWNER, 322 U.S. 756 (1944);
UNITED STATES EX REL.  INNES V. CRYSTAL, 319 U.S. 755 (1943); WEBER V.
SQUIER, 315 U.S. 810 (1942). 

FN16  VA. CODE ANN. SEC. 53-264. 

FN17  SEE ANDERSON V. CORALL, 263 U.S. 193, 196 (1923)("WHILE
(PAROLE) IS AN AMELIORATION OF PUNISHMENT, IT IS IN LEGAL EFFECT
IMPRISONMENT"); VON HENTIG, DEGREES OF PAROLE VIOLATION AND GRADED
REMEDIAL MEASURES, 33 J. CRIM. L. & CRIMINOLOGY 363 (1943). 

FN18  VA. CODE ANN. SECS. 53-258, 53-259.  IN FACT, ALL THE BOARD HAS
TO FIND IS THAT THERE WAS "A PROBABLE VIOLATION." 

FN19  EVEN THE CONDITION WHICH REQUIRES PETITIONER NOT TO VIOLATE ANY
PENAL LAWS OR ORDINANCES, AT FIRST BLUSH INNOCUOUS, IS A SIGNIFICANT
RESTRAINT BECAUSE IT IS THE PAROLE BOARD MEMBERS OR THE PAROLE OFFICER
WHO WILL DETERMINE WHETHER SUCH A VIOLATION HAS OCCURRED. 

FN20  THE CONDITIONS INVOLVED IN THIS CASE APPEAR TO BE COMMON ONES. 
SEE GIARDINI, THE PAROLE PROCESS, 12-16 (1959). 
..END :









PAUL V. UNITED STATES 371 U.S. 245 


NO. 19.  ARGUED OCTOBER 17-18, 1962.  - DECIDED JANUARY 14, 1963.  - 190
F. SUPP. 645, AFFIRMED IN PART AND VACATED AND REMANDED IN PART. 


CALIFORNIA ATTEMPTED TO ENFORCE HER MINIMUM WHOLESALE PRICE
REGULATIONS WITH RESPECT TO MILK SOLD TO THE UNITED STATES AT THREE
MILITARY INSTALLATIONS IN THE STATE.  SUCH MILK WAS PURCHASED FOR
STRICTLY MILITARY CONSUMPTION, FOR RESALE AT FEDERAL COMMISSARIES, FOR
USE AT VARIOUS MILITARY CLUBS OR FOR RESALE IN VARIOUS POST EXCHANGES. 
THE UNITED STATES SUED IN A FEDERAL DISTRICT COURT TO ENJOIN
ENFORCEMENT OF THE REGULATIONS ON THE GROUNDS THAT (A) THE MILITARY
INSTALLATIONS WERE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE UNITED
STATES, AND (B) SUCH REGULATIONS UNCONSTITUTIONALLY BURDENED THE UNITED
STATES IN THE EXERCISE OF ITS CONSTITUTIONAL POWER TO ESTABLISH AND
MAINTAIN THE ARMED FORCES AND TO ACQUIRE AND MANAGE FEDERAL ENCLAVES. 
A THREE-JUDGE COURT WAS CONVENED, AND IT ENJOINED CALIFORNIA OFFICIALS
FROM ENFORCING THE REGULATIONS AS TO SUCH MILK.  AN APPEAL WAS TAKEN
DIRECTLY TO THIS COURT.  HELD: 

1.  THE ISSUE AS TO WHETHER OR NOT THE STATE REGULATORY SCHEME
BURDENED THE EXERCISE BY THE UNITED STATES OF ITS CONSTITUTIONAL POWERS
TO MAINTAIN THE ARMED SERVICES AND TO REGULATE FEDERAL TERRITORY WAS A
SUBSTANTIAL FEDERAL QUESTION; THE SUIT WAS ONE "REQUIRED" TO BE HEARD
BY A THREE-JUDGE COURT; AND THE CASE WAS PROPERLY BROUGHT TO THIS COURT
BY DIRECT APPEAL UNDER 28 U.S.C. SEC. 1253.  PP. 249-250. 

2.  THE CALIFORNIA PRICE-FIXING REGULATIONS CANNOT CONSTITUTIONALLY
BE APPLIED TO PURCHASES OF MILK FOR STRICTLY MILITARY CONSUMPTION OR
FOR RESALE AT FEDERAL COMMISSARIES, SINCE THE STATE REGULATIONS ARE IN
CONFLICT WITH FEDERAL STATUTES AND REGULATIONS GOVERNING THE
PROCUREMENT WITH APPROPRIATED FUNDS OF GOODS FOR THE ARMED SERVICES. 
PP. 250-263. 

(A)  THE FEDERAL STATUTES AND REGULATIONS REQUIRE COMPETITIVE BIDDING
OR NEGOTIATIONS THAT REFLECT ACTIVE COMPETITION; WHEREAS THE STATE MILK
REGULATIONS WOULD DEFEAT THIS PURPOSE BY HAVING A STATE OFFICER FIX THE
PRICE ON THE BASIS OF FACTORS NOT SPECIFIED IN THE FEDERAL LAW.  PP.
250-255. 

(B)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY 10 U.S.C. SEC.
2306(F), AS AMENDED SEPT. 10, 1962, WHICH REQUIRES CONTRACTORS TO
SUBMIT COST OR PRICING DATA FOR ANY NEGOTIATED CONTRACT BUT MAKES THAT
REQUIREMENT INAPPLICABLE WHERE "PRICES ARE SET BY LAW OR REGULATION." 
P. 256. 

(C)  NOR IS A DIFFERENT CONCLUSION REQUIRED BY SEC. 2304(G), ALSO
ADDED IN 1962, WHICH REFERS TO NEGOTIATED PROCUREMENTS IN EXCESS OF
$2,500 "IN WHICH RATES OR PRICES ARE NOT FIXED BY LAW OR REGULATION." 
PP. 256-261. 

(D)  THE STATUTES AND REGULATIONS GOVERNING PROCUREMENTS FOR THE
ARMED SERVICES APPLY TO PURCHASES OF MILK FOR RESALE AT FEDERAL
COMMISSARIES, AS WELL AS TO PURCHASES OF MILK FOR MESS-HALL USE.  PP.
261-263. 

3.  INSOFAR AS THE JUDGMENT BELOW PERTAINS TO PURCHASES OF MILK WITH
NONAPPROPRIATED FUNDS FOR USE AT VARIOUS MILITARY CLUBS OR FOR RESALE
AT POST EXCHANGES, IT IS VACATED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS.  PP. 263-270. 

(A)  IF THE DISTRICT COURT FINDS THAT CALIFORNIA'S BASIC MILK PRICE
CONTROL LAW WAS IN EFFECT WHEN THE VARIOUS TRACTS OF LAND IN QUESTION
WERE ACQUIRED, JUDGMENT AS TO THIS CLASS OF PURCHASES AND SALES SHOULD
BE FOR APPELLANTS.  PP. 264-269. 

(B)  IF THE DISTRICT COURT FINDS THAT CALIFORNIA'S BASIC MILK PRICE
CONTROL LAW WAS NOT IN EFFECT WHEN SUCH TRACTS WERE ACQUIRED, THEN IT
MUST MAKE PARTICULARIZED FINDINGS AS TO WHERE THE PURCHASES AND SALE OF
MILK WITH NONAPPROPRIATED FUNDS ARE MADE AND WHETHER OR NOT SUCH TRACTS
ARE AREAS OVER WHICH THE UNITED STATES HAS "EXCLUSIVE" JURISDICTION,
WITHIN THE MEANING OF ART. I, SEC. 8, CL. 17, OF THE CONSTITUTION.  PP.
269-270. 

PAUL, DIRECTOR OF AGRICULTURE OF CALIFORNIA, ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE MAIN QUESTION IN THIS CASE IS WHETHER CALIFORNIA CAN ENFORCE HER
MINIMUM WHOLESALE PRICE REGULATIONS AS RESPECTS MILK SOLD TO THE UNITED
STATES AT THREE MILITARY INSTALLATIONS (FN1) (TRAVIS AIR FORCE BASE,
CASTLE AIR FORCE BASE, AND OAKLAND ARMY TERMINAL) LOCATED WITHIN
CALIFORNIA AND USED FOR STRICTLY MILITARY CONSUMPTION, FOR RESALE AT
FEDERAL COMMISSARIES AND FOR CONSUMPTION OR RESALE AT VARIOUS MILITARY
CLUBS AND POST EXCHANGES.  MILK USED FOR THE FIRST TWO CATEGORIES OF
USE IS PAID FOR WITH APPROPRIATED FUNDS, WHILE THAT USED IN THE CLUBS
AND EXCHANGES IS PURCHASED WITH NONAPPROPRIATED FUNDS.  PRIOR TO
JANUARY 1959, THE MILK SUPPLIES PURCHASED WITH APPROPRIATED FUNDS AND
USED AT THOSE INSTALLATIONS WERE OBTAINED AS A RESULT OF COMPETITIVE
BIDDING AND ON TERMS BELOW THE MINIMUM PRICES PRESCRIBED BY THE
DIRECTOR OF AGRICULTURE OF CALIFORNIA.  THE DIRECTOR ADVISED
DISTRIBUTORS THAT THE STATE'S MINIMUM PRICE REGULATIONS WERE APPLICABLE
TO SALES AT TRAVIS.  SUBSEQUENTLY BIDS FOR MILK-SUPPLY CONTRACTS AT
TRAVIS WERE IN STRICT COMPLIANCE WITH CALIFORNIA'S REGULATIONS, THE
ADDED COST TO THE FEDERAL GOVERNMENT BEING ABOUT $15,000 A MONTH. 
LATER THAT YEAR CALIFORNIA INSTITUTED A CIVIL ACTION IN THE STATE
COURTS AGAINST A COOPERATIVE THAT HAD SUPPLIED MILK AT TRAVIS BELOW THE
STATE MINIMUM PRICE, SEEKING CIVIL PENALTIES AND AN INJUNCTION. 
THEREAFTER THE UNITED STATES BROUGHT THIS SUIT IN THE DISTRICT COURT. 
THE COMPLAINT ALLEGED THAT STATE PRICE REGULATION OF MILK SALES AT
TRAVIS, A FEDERAL ENCLAVE, WAS BARRED BY THE CONSTITUTION, SINCE TRAVIS
IS SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES.  (FN2)
IT ALSO ALLEGED THAT SUCH REGULATION WAS AN UNCONSTITUTIONAL BURDEN ON
THE UNITED STATES IN THE EXERCISE OF ITS CONSTITUTIONAL POWER TO
ESTABLISH AND MAINTAIN THE ARMED FORCES AND TO ACQUIRE AND MANAGE A
FEDERAL ENCLAVE.  THE COMPLAINT ASKED THAT A THREE-JUDGE COURT BE
CONVENED. 

MEANWHILE, THE DIRECTOR OF AGRICULTURE OF CALIFORNIA WARNED
DISTRIBUTORS THAT THE CALIFORNIA REGULATION WOULD BE ENFORCED AT CASTLE
AND AT OAKLAND.  BIDS FOR MILK THEREAFTER RECEIVED AT CASTLE WERE ALL
AT OR ABOVE THE STATE MINIMUM PRICE; AND ACCORDINGLY THEY WERE
REJECTED.  A NEW INVITATION FOR BIDS WAS ISSUED, AND ONE OF THOSE
RECEIVED WAS BELOW THE STATE MINIMUM.  THEREUPON CALIFORNIA SUED THE
SUCCESSFUL BIDDER FOR AN INJUNCTION; AND LATER IT SUED OTHER LIKE
BIDDERS.  A SIMILAR EXPERIENCE WAS HAD AT OAKLAND; BIDS AT OR ABOVE THE
MINIMUM WERE REJECTED, AND A CONTRACT WITH A DISTRIBUTOR FOR A PRIOR
PERIOD WAS EXTENDED FOR THREE MONTHS WITH AN ESTIMATED SAVING TO THE
UNITED STATES OF OVER $30,000.  CALIFORNIA AGAIN INSTITUTED SUIT TO
ENJOIN THE SUPPLIER FROM SELLING AT BELOW ESTABLISHED MINIMUM WHOLESALE
PRICES.  THE UNITED STATES AMENDED ITS COMPLAINT TO INCLUDE ITS
PURCHASES AT CASTLE.  AS RESPECTS OAKLAND THE UNITED STATES COMMENCED A
SEPARATE ACTION BY A COMPLAINT SUBSTANTIALLY IDENTICAL WITH THE OTHER
ONE; AND THEY WERE LATER CONSOLIDATED. 

APPELLANTS DENIED THAT THESE THREE INSTALLATIONS WERE FEDERAL
ENCLAVES GIVING THE UNITED STATES EXCLUSIVE JURISDICTION AND THAT THERE
WAS ANY CONFLICT BETWEEN THE STATE REGULATORY SCHEME AND THE FEDERAL
PROCUREMENT POLICY.  APPELLANTS ALSO MOVED THAT THE DISTRICT COURT STAY
THESE ACTIONS PENDING DETERMINATION OF STATE-LAW QUESTIONS BY THE STATE
COURTS IN THE PENDING ACTIONS. 

THE THREE-JUDGE DISTRICT COURT REFUSED TO STAY THE PROCEEDINGS AND
GRANTED THE MOTION OF THE UNITED STATES FOR SUMMARY JUDGMENT.  190 F.
SUPP. 645.  WE POSTPONED A DETERMINATION OF JURISDICTION TO THE
MERITS.  368 U.S. 965. 

                           I. 

HERE, AS IN UNITED STATES V. GEORGIA PUBLIC SERVICE COMM'N, POST, P.
285, DECIDED THIS DAY, THE SUIT WAS ONE "REQUIRED" TO BE HEARD BY A
THREE-JUDGE COURT WITHIN THE MEANING OF 28 U.S.C.  SEC. 1253 AND
THEREFORE PROPERLY BROUGHT HERE BY DIRECT APPEAL.  APART FROM THE
QUESTION WHETHER THE THREE FEDERAL AREAS WERE SUBJECT TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES, THE ISSUE AS TO WHETHER OR NOT THE
STATE REGULATORY SCHEME BURDENED THE EXERCISE BY THE UNITED STATES OF
ITS CONSTITUTIONAL POWERS TO MAINTAIN THE ARMED SERVICES AND TO
REGULATE FEDERAL TERRITORY WAS A SUBSTANTIAL FEDERAL QUESTION, AS PENN
DAIRIES, INC., V. MILK COMM'N, 318 U.S. 261, PUBLIC UTILITIES COMM'N OF
CALIFORNIA V. UNITED STATES, 355 U.S. 534, AND UNITED STATES V. GEORGIA
PUBLIC SERVICE COMM'N, SUPRA, MAKE CLEAR.  A THREE-JUDGE COURT WAS
THEREFORE REQUIRED EVEN IF OTHER ISSUES THAT MIGHT NOT PASS MUSTER ON
THEIR OWN WERE ALSO TENDERED.  SEE 28 U.S.C.  SEC. 2281; FLORIDA LIME &
AVOCADO GROWERS, INC., V. JACOBSEN, 362 U.S. 73. 

                              II. 

THE CALIFORNIA ACT AUTHORIZES THE DIRECTOR OF AGRICULTURE TO
PRESCRIBE MINIMUM WHOLESALE AND RETAIL PRICES (FN3) "AT WHICH FLUID
MILK OR FLUID CREAM SHALL BE SOLD BY DISTRIBUTORS TO RETAIL STORES,
RESTAURANTS, CONFECTIONERIES AND OTHER PLACES FOR CONSUMPTION ON THE
PREMISES."  (FN4)  THE PROHIBITIONS RUN BOTH AGAINST SALES AND AGAINST
PURCHASES; (FN5) AND BOTH CRIMINAL AND CIVIL PENALTIES ARE PROVIDED. 
(FN6)  THE MINIMUM WHOLESALE PRICES, PROMULGATED BY THE DIRECTOR OF
AGRICULTURE, HAVE BEEN ENFORCED WITH RESPECT TO SALES TO THE UNITED
STATES, AS ALREADY NOTED. 

IN PUBLIC UTILITIES COMM'N OF CALIFORNIA V. UNITED STATES, SUPRA, WE
HELD THAT THE FEDERAL PROCUREMENT POLICY, WHICH REQUIRED COMPETITIVE
BIDDING AS THE GENERAL RULE AND NEGOTIATED PURCHASE OR CONTRACT AS THE
EXCEPTION, PREVAILED OVER CALIFORNIA'S REGULATED RATE SYSTEM.  THAT
CASE, LIKE UNITED STATES V. GEORGIA PUBLIC SERVICE COMM'N, SUPRA,
CONCERNED TRANSPORTATION OF COMMODITIES.  BUT THE FEDERAL POLICY AT THE
TIMES RELEVANT HERE WAS THE SAME FOR PROCUREMENT OF SUPPLIES AND
SERVICES.   THE STATUTES IN EFFECT AT THE TIME OF THE PUBLIC UTILITIES
COMM'N OF CALIFORNIA CASE ARE STILL THE BASIC PROVISIONS GOVERNING ALL
PROCUREMENT BY THE ARMED SERVICES OUT OF APPROPRIATED FUNDS.  THEY
REQUIRE THAT CONTRACTS BE PLACED BY COMPETITIVE BIDDING, THE AWARD TO
BE GRANTED "TO THE RESPONSIBLE BIDDER WHOSE BID  ...  WILL BE THE MOST
ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS
CONSIDERED."  (FN7)  THERE ARE STATUTORY EXCEPTIONS, THE RELEVANT ONES
BEING AS FOLLOWS: 

"(A)  PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY
THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING IN ALL CASES IN WHICH
THE USE OF SUCH METHOD IS FEASIBLE AND PRACTICABLE UNDER THE EXISTING
CONDITIONS AND CIRCUMSTANCES.  IF USE OF SUCH METHOD IS NOT FEASIBLE
AND PRACTICABLE, THE HEAD OF AN AGENCY, SUBJECT TO THE REQUIREMENTS FOR
DETERMINATIONS AND FINDINGS IN SECTION 2310, MAY NEGOTIATE SUCH A
PURCHASE OR CONTRACT, IF:

      *         *         *  *         * 

"(8)  THE PURCHASE OR CONTRACT IS FOR PROPERTY FOR AUTHORIZED
RESALE: 

"(9)  THE PURCHASE OR CONTRACT IS FOR PERISHABLE OR NONPERISHABLE
SUBSISTENCE SUPPLIES: 

"(10)  THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES FOR WHICH
IT IS IMPRACTICABLE TO OBTAIN COMPETITION:

      *   *         *         *         * 

"(15)  THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES FOR WHICH
HE DETERMINES THAT THE BID PRICES RECEIVED AFTER FORMAL ADVERTISING ARE
UNREASONABLE AS TO ALL OR PART OF THE REQUIREMENTS, OR WERE NOT
INDEPENDENTLY REACHED IN OPEN COMPETITION, AND FOR WHICH (A) HE HAS
NOTIFIED EACH RESPONSIBLE BIDDER OF INTENTION TO NEGOTIATE AND GIVEN
HIM REASONABLE OPPORTUNITY TO NEGOTIATE; (B) THE NEGOTIATED PRICE IS
LOWER THAN THE LOWEST REJECTED BID OF ANY RESPONSIBLE BIDDER, AS
DETERMINED BY THE HEAD OF THE AGENCY; AND (C) THE NEGOTIATED PRICE IS
THE LOWEST NEGOTIATED PRICE OFFERED BY ANY RESPONSIBLE SUPPLIER." 
(FN8) 

THE ARMED SERVICES PROCUREMENT REGULATION SPEAKS IN UNAMBIGUOUS TERMS
OF A POLICY "TO USE THAT METHOD OF PROCUREMENT WHICH WILL BE MOST
ADVANTAGEOUS TO THE GOVERNMENT - PRICE, QUALITY, AND OTHER FACTORS
CONSIDERED."  (FN9)  THE REGULATION STATES, "SUCH PROCUREMENT SHALL BE
MADE ON A COMPETITIVE BASIS, WHETHER BY FORMAL ADVERTISING OR BY
NEGOTIATION, TO THE MAXIMUM PRACTICABLE EXTENT  ...  ."  (FN10)
WHATEVER METHOD IS USED - FORMAL ADVERTISING OR NEGOTIATION -
"COMPETITIVE PROPOSALS" MUST BE "SOLICITED FROM ALL SUCH QUALIFIED
SOURCES OF SUPPLIES OR SERVICES AS ARE DEEMED NECESSARY BY THE
CONTRACTING OFFICER TO ASSURE SUCH FULL AND FREE COMPETITION AS ...  TO
OBTAIN FOR THE GOVERNMENT THE MOST ADVANTAGEOUS CONTRACT - PRICE,
QUALITY, AND OTHER FACTORS CONSIDERED."  (FN11)  IF ADVERTISING FOR
BIDS IS USED, THE CONTRACT IS TO BE AWARDED "TO THE LOWEST RESPONSIBLE
BIDDER."  (FN12)  MOREOVER, EVEN WHEN ADVERTISING FOR BIDS IS NOT USED,
COMPETITIVE STANDARDS ARE NOT RELAXED.   THE POLICY IS "TO PROCURE
SUPPLIES AND SERVICES FROM RESPONSIBLE SOURCES AT FAIR AND REASONABLE
PRICES CALCULATED TO RESULT IN THE LOWEST ULTIMATE OVER-ALL COST TO THE
GOVERNMENT."  (FN13)  "THE FACT THAT A PROCUREMENT IS TO BE NEGOTIATED
DOES NOT RELAX THE REQUIREMENTS FOR COMPETITION."  (FN14)  "WHENEVER
SUPPLIES  ...  ARE TO BE PROCURED BY NEGOTIATION, PRICE QUOTATIONS  ...
SHALL BE SOLICITED FROM ALL SUCH QUALIFIED SOURCES OF SUPPLIES OR
SERVICES AS ARE DEEMED NECESSARY  ...  TO ASSURE FULL AND FREE
COMPETITION  ...  TO THE END THAT THE PROCUREMENT WILL BE MADE TO THE
BEST ADVANTAGE OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED." 
(FN15)  THE REGULATION THEN SPECIFIES 20 SEPARATE CONSIDERATIONS FOR
THE SELECTION OF A SUPPLIER IN CASE OF A NEGOTIATED PROCUREMENT. 
(FN16)  THE FIRST OF THESE IS A "COMPARISON OF PRICES QUOTED."  (FN17) 

WE HAVE SAID ENOUGH TO SHOW THAT THE REGULATION DOES MORE THAN
AUTHORIZE PROCUREMENT OFFICERS TO NEGOTIATE FOR LOWER RATES.  IT
DIRECTS THAT NEGOTIATIONS OR, WHEREVER POSSIBLE, ADVERTISING FOR BIDS
SHALL REFLECT ACTIVE COMPETITION SO THAT THE UNITED STATES MAY RECEIVE
THE MOST ADVANTAGEOUS CONTRACT. 

WHILE THE FEDERAL PROCUREMENT POLICY DEMANDS COMPETITION, THE
CALIFORNIA POLICY, AS RESPECTS MILK, EFFECTIVELY ELIMINATES
COMPETITION.  THE CALIFORNIA POLICY DEFEATS THE COMMAND TO FEDERAL
OFFICERS TO PROCURE SUPPLIES AT THE LOWEST COST TO THE UNITED STATES BY
HAVING A STATE OFFICER FIX THE PRICE ON THE BASIS OF FACTORS NOT
SPECIFIED IN THE FEDERAL LAW.  MOREOVER, WHEN THE SUPPLY CONTRACT IS
NEGOTIATED BECAUSE "IT IS IMPRACTICABLE TO OBTAIN COMPETITION," TO USE
THE STATUTORY WORDS, (FN18) IT IS THE STATE AGENCY, NOT THE FEDERAL
PROCUREMENT OFFICER AND THE SELLER, THAT DETERMINES THE PRICE
PROVISIONS OF THE CONTRACT, IF STATE POLICY PREVAILS.  THE COLLISION
BETWEEN THE FEDERAL POLICY OF NEGOTIATED PRICES AND THE STATE POLICY OF
REGULATED PRICES IS AS CLEAR AND ACUTE HERE AS WAS THE CONFLICT BETWEEN
FEDERAL NEGOTIATED RATES AND STATE REGULATED RATES IN PUBLIC UTILITIES
COMM'N OF CALIFORNIA V. UNITED STATES, SUPRA.  IN THAT CASE WE SAID
THAT THE REGULATION THEN EXISTING, WHICH WAS PROMULGATED UNDER THE SAME
ACT HERE INVOLVED, "SANCTIONED THE POLICY OF NEGOTIATING RATES FOR
SHIPMENT OF FEDERAL PROPERTY AND ENTRUSTED THE PROCUREMENT OFFICERS
WITH THE DISCRETION TO DETERMINE WHEN EXISTING RATES WILL BE ACCEPTED
AND WHEN NEGOTIATION FOR LOWER RATES WILL BE UNDERTAKEN."  355 U.S., AT
542-543. 

PENN DAIRIES, INC., V. MILK CONTROL COMM'N, SUPRA, IS NOT OPPOSED. 
AS WE NOTED IN UNITED STATES V. GEORGIA PUBLIC SERVICE COMM'N, SUPRA,
CONGRESS, AFTER THE PENN DAIRIES DECISION AND BEFORE PUBLIC UTILITIES
COMM'N OF CALIFORNIA V. UNITED STATES, REVISED AND RESTATED THE FEDERAL
PROCUREMENT POLICY.  AS STATED IN THE HOUSE REPORT, (FN19) "  ... THE
BILL REPRESENTS A COMPREHENSIVE REVISION AND RESTATEMENT OF THE LAWS
GOVERNING THE PROCUREMENT OF SUPPLIES AND SERVICES BY THE WAR AND NAVY
DEPARTMENTS.  IT HOLDS TO THE TIME-TESTED METHOD OF COMPETITIVE
BIDDING.  AT THE SAME TIME IT PUTS WITHIN THE FRAMEWORK OF ONE LAW
ALMOST A CENTURY'S ACCUMULATION OF STATUTES AND INCORPORATES NEW
SAFEGUARDS DESIGNED TO ELIMINATE ABUSES, ASSURES THE GOVERNMENT OF FAIR
AND REASONABLE PRICES FOR THE SUPPLIES AND SERVICES PROCURED AND
AFFORDS AN EQUAL OPPORTUNITY TO ALL SUPPLIERS TO COMPETE FOR AND SHARE
IN THE GOVERNMENT'S BUSINESS." 

THE REGULATION CONTROLLING THE PENN DAIRIES DECISION STATED, AS DOES
THE PRESENT ACT, THAT SUPPLIES MIGHT BE PURCHASED ON THE OPEN MARKET
WHERE IT IS "IMPRACTICABLE TO SECURE COMPETITION."  318 U.S., AT 277. 
BUT, UNLIKE THE PRESENT REGULATION, THE EARLIER ONE DECLARED THAT SUCH
A SITUATION AROSE "WHEN THE PRICE IS FIXED BY FEDERAL, STATE, MUNICIPAL
OR OTHER COMPETENT LEGAL AUTHORITY."  IBID.  THE EARLIER REGULATION
FURTHER STATED THAT FEDERAL PROCUREMENT OFFICERS SHOULD NOT REQUIRE
SUPPLIERS TO COMPLY WITH STATE PRICE-FIXING LAWS BEFORE IT WAS
JUDICIALLY DETERMINED WHETHER THE LATTER WERE APPLICABLE TO GOVERNMENT
CONTRACTS (ID., AT 276), A PROVISION WHICH THE COURT SAID MANIFESTED A
FEDERAL "HANDS OFF" POLICY RESPECTING MINIMUM PRICE LAWS OF THE
STATES.  ID., AT 278.    THE PRESENT REGULATION MAKES NO SUCH
ALLOWANCES, CONTAINS NO SUCH QUALIFICATIONS, AND PROVIDES FOR NO SUCH
EXCEPTION.  ITS UNQUALIFIED COMMAND IS THAT PURCHASES FOR THE ARMED
SERVICES BE MADE ON A COMPETITIVE BASIS; AND IT HAS, OF COURSE, THE
FORCE OF LAW.  PUBLIC UTILITIES COMM'N OF CALIFORNIA V. UNITED STATES,
SUPRA, AT 542-543.  CALIFORNIA'S PRICE-FIXING POLICY FOR MILK IS AS
OPPOSED TO THIS FEDERAL PROCUREMENT POLICY AS WAS CALIFORNIA'S RATE
MAKING POLICY IN PUBLIC UTILITIES COMM'N OF CALIFORNIA V. UNITED
STATES, SUPRA. 

POLICY-WISE, IT MIGHT BE BETTER IF STATE PRICE-FIXING SYSTEMS WERE
HONORED BY FEDERAL PROCUREMENT OFFICIALS.  IT IS URGED THAT IF THAT
WERE DONE SUBSTANDARD PRODUCERS OF SOME SUPPLIERS WOULD LOSE THE
ADVANTAGE THEY MAY ENJOY IN COMPETITIVE BIDDING.  CONGRESS COULD OF
COURSE WRITE THAT REQUIREMENT INTO THE LAW.  CONGRESS HAS WRITTEN INTO
THE ACT CERTAIN PROVISIONS OF THAT CHARACTER.  IT HAS REQUIRED THAT
CONTRACTORS OR MANUFACTURERS PAY NOT LESS THAN THE MINIMUM WAGE AS
DETERMINED BY THE SECRETARY OF LABOR TO BE THE PREVAILING WAGE; THAT
BUILDING CONTRACTORS PAY SUCH MINIMUM WAGES TO LABORERS AND MECHANICS;
AND THAT NO LABORER OR MECHANIC DOING ANY WORK FOR CONTRACTORS AND
SUBCONTRACTORS ON GOVERNMENT CONTRACTS SHALL BE REQUIRED OR PERMITTED
TO WORK MORE THAN EIGHT HOURS A DAY, UNLESS ONE AND A HALF TIMES THE
BASIC RATE IS PAID FOR OVERTIME.  (FN20)  THE INCLUSION OF THESE
PROVISIONS, AIMED AS THEY ARE AT SUBSTANDARD WORKING CONDITIONS, SHOWS
THAT CONGRESS HAS BEEN ALERT TO THE PROBLEM.  THEIR INCLUSION MAKES
MORE ELOQUENT THE OMISSION OF ANY LIKE REQUIREMENT AS RESPECTS PRICES
OR RATES FIXED BY STATE LAW. 

IT IS ARGUED THAT THE ACT OF SEPTEMBER 10, 1962, 76 STAT. 528,
CHANGED THE SITUATION.  CALIFORNIA POINTS TO SEC. 2306(F), WHICH
REQUIRES CONTRACTORS TO SUBMIT COST OR PRICING DATA FOR ANY NEGOTIATED
CONTRACT, BUT GOES ON TO LIFT THAT REQUIREMENT WHERE "PRICES (ARE) SET
BY LAW OR REGULATION."  BUT THIS PROVISION DOES NOT SAY, EVEN
EQUIVOCALLY, THAT FEDERAL PROCUREMENT OFFICERS MUST ABANDON COMPETITIVE
BIDDING WHERE PRICES ARE "SET BY LAW OR REGULATION."  THE REGULATION
MAKES COMPETITIVE BIDDING THE RULE, AS WE HAVE SEEN.  SECTION 2306(F)
ONLY PROVIDES FOR WAIVER OF "COST OR PRICING DATA" UNDER CERTAIN KINDS
OF NEGOTIATED CONTRACTS IF THE PRICES OF SOME COMMODITIES INCLUDED IN
THE CONTRACT HAVE BEEN "SET BY LAW OR REGULATION."  THAT IS TO SAY, AS,
IF, AND WHEN THE PROCUREMENT OFFICER IS AUTHORIZED TO ACCEPT PRICES
"SET BY LAW OR REGULATION," HE NEED NOT FOLLOW THE REQUIREMENTS OF SEC.
2306(F) CONCERNING "COST OR PRICING DATA." 

CALIFORNIA CITES BUT BUILDS NO ARGUMENT AROUND SEC. 2304(G), ALSO
ADDED IN 1962.  IT IS NOW SUGGESTED FOR THE FIRST TIME THAT SEC.
2304(G) REQUIRES FEDERAL PROCUREMENT TO FOLLOW STATE RATE-FIXING AND
STATE PRICE-FIXING.  IT PROVIDES IN RELEVANT PART: 

"IN ALL NEGOTIATED PROCUREMENTS IN EXCESS OF $2,500 IN WHICH RATES OR
PRICES ARE NOT FIXED BY LAW OR REGULATION AND IN WHICH TIME OF DELIVERY
WILL PERMIT, PROPOSALS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF
QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE
SUPPLIES OR SERVICES TO BE PROCURED, AND WRITTEN OR ORAL DISCUSSIONS
SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS
WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED  ...
." 

HERE AGAIN, THE NEW STATUTORY PROVISION DOES NOT PURPORT TO SAY WHEN
RATES OR PRICES "FIXED BY LAW OR REGULATION" GOVERN FEDERAL
PROCUREMENT.  AT THE TIME SEC. 2304(G) WAS ADDED TO THE ACT, THE
REGULATION WHICH WE HAVE DISCUSSED AT LENGTH WAS IN FULL FORCE.  THAT
REGULATION, UNLIKE THE ONE IN PENN DAIRIES, ELIMINATED THE EARLIER
PROVISIONS WHICH HAD BEEN CONSTRUED TO MANIFEST A FEDERAL "HANDS OFF"
POLICY RESPECTING MINIMUM PRICE LAWS OF THE STATES.  318 U.S., AT 278. 
THE REGULATION IN FORCE WHEN THIS LITIGATION STARTED AND IN FORCE WHEN
THE 1962 ACT WAS PASSED PROVIDES UNEQUIVOCALLY FOR COMPETITIVE BIDDING
"TO THE MAXIMUM PRACTICABLE EXTENT," AS WE HAVE NOTED.  THAT MIGHT WELL
PERMIT PROCUREMENT OFFICERS UNDER SOME CIRCUMSTANCES TO PURCHASE AT
STATE-FIXED PRICES.  BUT COMPETITIVE BIDDING IS THE RULE, NOT THE
EXCEPTION.  THERE IS NOT A WORD IN THE LEGISLATIVE HISTORY OF THE 1962
ACT (FN21) WHICH INDICATES A CONGRESSIONAL POLICY TO UPROOT THE
REGULATION OR TO CHANGE IT.  IT WAS, INDEED, REPEATEDLY APPROVED.  SEE
S. REP.  NO. 1884, 87TH CONG., 2D SESS.; H.R. REP. NO. 1638, 87TH
CONG., 2D SESS., PARTS I AND II; CONG. REC., JUNE 7, 1962, P. 9231 ET
SEQ. FOUR YEARS BEFORE THE 1962 ACT WAS PASSED CALIFORNIA COMM'N HAD
HELD THAT STATE REGULATIONS CANNOT PRECLUDE THE FEDERAL GOVERNMENT FROM
NEGOTIATING LOWER RATES.  THIS RESULT WAS NOT ONCE QUESTIONED IN THE
LEGISLATIVE HISTORY OF THE 1962 ACT, EVEN THOUGH THE INSTANT CASE WAS
BEING LITIGATED DURING THIS ENTIRE PERIOD.  THAT ACT ONLY REFLECTS AN
EFFORT TO PROVIDE COLLATERAL ACCOMMODATIONS AS, IF, AND WHEN FEDERAL
PROCUREMENT FOLLOWS STATE PRICE-FIXING.  THE MANDATE OF 10 U.S.C. SEC.
2305(A) IS STILL UNEQUIVOCAL; AND THE STATUTORY EXCEPTIONS TO
COMPETITIVE BIDDING CONTAINED IN SEC. 2304(A), DISCUSSED ABOVE, REMAIN
UNCHANGED. 

THE 1962 ACT FAILS TO SHOW A CONGRESSIONAL PURPOSE TO ABANDON
COMPETITIVE BIDDING.  ON THE CONTRARY THE PURPOSE, AS STATED IN S. REP.
NO. 1884, 87TH CONG., 2D SESS., WAS TO INCREASE THE EFFICACY OF THE
COMPETITIVE BIDDING SYSTEM THEN IN FORCE. 

NOT ONLY WAS THE EXISTING REGULATION CITED REPEATEDLY WITH APPROVAL,
BUT THE AIM OF THE ACT WAS DESCRIBED IN UNAMBIGUOUS TERMS: 

"IN GENERAL, THE OBJECTIVES OF THE CHANGES ARE: 

"(1)  TO ENCOURAGE MORE EFFORT TO ACCOMPLISH PROCUREMENTS BY FORMAL
ADVERTISING: 

"(2)  TO REQUIRE A CLEARER JUSTIFICATION BEFORE CERTAIN AUTHORITIES
TO NEGOTIATE CONTRACTS ARE USED: 

"(3)  TO OBTAIN MORE COMPETITION IN NEGOTIATED PROCUREMENT: 

"(4)  TO PROVIDE SAFEGUARDS FOR THE GOVERNMENT AGAINST INFLATED COST
ESTIMATES IN NEGOTIATED CONTRACTS."  ID., P. 1. 

THE HOUSE RECEIVED AN EQUALLY UNAMBIGUOUS EXPLANATION FROM THE FLOOR
MANAGER OF THE BILL: 

"THIS BILL  ...  HAS FOR ITS CHIEF PURPOSE AN INCREASE IN COMPETITIVE
PURCHASING  ...  .  ONLY 13 PERCENT OF PURCHASING IS NOW DONE BY SEALED
COMPETITIVE BIDDING.  THAT IS CLEARLY NOT ENOUGH.  COMPETITION MUST BE
INCREASED; COMPETITION MUST BE HAD EVEN IN NEGOTIATED PURCHASING; AND
ALL NEGOTIATED PURCHASING MUST BE FURTHER REDUCED."  CONG. REC., JUNE
7, 1962, P. 9234. 

IF THERE HAD BEEN A DESIRE TO MAKE FEDERAL PROCUREMENT POLICY BOW TO
STATE PRICE-FIXING IN FACE OF THE CONTRARY POLICY EXPRESSED IN THE
REGULATION, WE CAN ONLY BELIEVE THAT THE OBJECTIVES OF THE ACT WOULD
HAVE BEEN DIFFERENTLY STATED.  IN SUM, THE REFERENCES TO RATES OR
PRICES "FIXED BY LAW OR REGULATION" ARE MERELY MINOR COLLATERAL
ACCOMMODATIONS TO THOSE SITUATIONS WHERE, WITHIN THE LIMITS OF THE
REGULATION AND THE 1962 ACT, THE FEDERAL PROCUREMENT OFFICIAL DECIDES
THAT THE PRACTICAL WAY TO OBTAIN THE SUPPLIES OR SERVICES IS BY
FOLLOWING THE STATE PRICE-FIXING OR RATE-FIXING SYSTEM. 

CALIFORNIA, HOWEVER, SAYS THAT WHATEVER MAY BE THE FEDERAL POLICY AS
TO PURCHASES OF MILK FOR MESS-HALL USE, PURCHASES OF MILK FOR RESALE AT
FEDERAL COMMISSARIES STAND ON A DIFFERENT FOOTING.  THESE COMMISSARIES
ARE "ARMS OF THE GOVERNMENT DEEMED BY IT ESSENTIAL FOR THE PERFORMANCE
OF GOVERNMENTAL FUNCTIONS" AND "PARTAKE OF WHATEVER IMMUNITIES" THE
ARMED SERVICES "MAY HAVE UNDER THE CONSTITUTION AND FEDERAL STATUTES." 
CF. STANDARD OIL CO. V. JOHNSON, 316 U.S. 481, 485.  PURCHASES FOR
RESALE AT THESE FEDERAL COMMISSARIES ARE MADE FROM APPROPRIATED FUNDS;
AND THE PROCUREMENT OFFICERS ACT UNDER THE SAME REGULATION WHEN THEY
PURCHASE MILK FOR THE COMMISSARIES AS THEY DO WHEN THEY PURCHASE IT FOR
MESS-HALL USE.  CALIFORNIA POINTS OUT, HOWEVER, THAT THE FEDERAL
STATUTE PROVIDES THAT WHERE COMMODITIES ARE PURCHASED FOR RESALE, THEY
MAY BE PROCURED BY NEGOTIATION RATHER THAN BY FORMAL ADVERTISING (FN22)
- A PROVISION WE HAVE QUOTED ABOVE AND WHICH WAS WRITTEN INTO THE LAW
BECAUSE PURCHASES FOR COMMISSARIES "ARE GENERALLY NOT MADE BY
SPECIFICATIONS BUT BY BRAND NAMES."  (FN23)  MILK, HOWEVER, DOES NOT
FIT THE CATEGORY OF COMMODITIES FOR WHICH THAT EXCEPTION WAS DESIGNED. 
MOREOVER, THE STATUTORY EXCEPTION TO FORMAL ADVERTISING IS MERELY
PERMISSIVE; THE PROCUREMENT OFFICER "MAY" NEGOTIATE FOR ARTICLES TO BE
RESOLD BUT HE IS NOT REQUIRED SO TO DO.  HE IS FREE TO PURCHASE BY
FORMAL ADVERTISING FROM THE RESPONSIBLE BIDDER WHOSE BID "WILL BE THE
MOST ADVANTAGEOUS TO THE UNITED STATES."  (FN24)  WHETHER HE NEGOTIATES
MILK CONTRACTS OR USES COMPETITIVE BIDDING IS MADE DEPENDENT BY THE
FEDERAL STATUTE ON HIS INFORMED DISCRETION, NOT ON STATE PRICE-FIXING
POLICIES.  MOREOVER, AS, IF, AND WHEN HE NEGOTIATES, THE REGULATION, AS
ALREADY NOTED, REQUIRES PRICE QUOTATIONS "FROM ALL SUCH QUALIFIED
SOURCES OF SUPPLIES OR SERVICES AS ARE DEEMED NECESSARY BY THE
CONTRACTING OFFICER TO ASSURE FULL AND FREE COMPETITION  ...  TO THE
END THAT THE PROCUREMENT WILL BE MADE TO THE BEST ADVANTAGE OF THE
GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED."  (FN25)  AND, TO
REPEAT, THE PROCUREMENT OFFICER WHEN HE NEGOTIATES IS CONTROLLED BY 20
SEPARATE FACTORS, ONE OF WHICH IS "COMPARISON OF PRICES QUOTED," (FN26)
AND NONE OF WHICH RELATES IN ANY MANNER WHATSOEVER TO THE PRICE-FIXING
POLICIES OF A STATE. 

THE FACT THAT THE COST OF PRODUCTS SOLD AT COMMISSARIES BENEFITS
COMMISSARY PURCHASERS DOES NOT MAKE THE COMMISSARY ANY THE LESS A
FEDERAL AGENCY.  CF. STANDARD OIL CO. V. JOHNSON, SUPRA. CONGRESS
AUTHORIZES THE PAYMENT FOR COMMISSARY SUPPLIES FROM APPROPRIATED
FUNDS.  (FN27)  THE FEDERAL STATUTES DEALING WITH PROCUREMENT POLICIES
EXPRESSLY MAKE THEM APPLICABLE TO ALL PURCHASES "FOR WHICH PAYMENT IS
TO BE MADE FROM APPROPRIATED FUNDS."  (FN28)  CONGRESS, TO BE SURE, HAS
PROVIDED THAT COMMISSARIES MAY NOT USE ANY APPROPRIATED FUNDS "UNLESS
THE SECRETARY OF DEFENSE HAS CERTIFIED THAT ITEMS NORMALLY PROCURED
FROM COMMISSARY STORES ARE NOT OTHERWISE AVAILABLE AT A REASONABLE
DISTANCE AND A REASONABLE PRICE IN SATISFACTORY QUALITY AND QUANTITY TO
THE MILITARY AND CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENSE." 
(FN29)  HERE AGAIN, HOWEVER, THE QUESTION OF WHAT IS A "REASONABLE
PRICE" IS LEFT TO THE DISCRETION OF A FEDERAL OFFICER.  CONGRESS HAS
NOT DIRECTED THAT COMMISSARIES BE REMOVED FROM THE PURVIEW OF FEDERAL
PROCUREMENT POLICIES; NOR HAS IT ADOPTED STATE PRICE-FIXING POLICIES AS
FEDERAL POLICIES WHEN IT COMES TO PURCHASES FOR COMMISSARIES OR
OTHERWISE. 

                                     III. 

WHAT WE HAVE SAID WOULD DISPOSE OF THE ENTIRE CASE BUT FOR THE FACT
THAT SOME OF THE MILK WAS PURCHASED OUT OF NONAPPROPRIATED FUNDS FOR
USE IN MILITARY CLUBS AND FOR RESALE AT POST EXCHANGES.  THIS BRINGS US
TO THE QUESTION WHETHER CONGRESS HAS POWER TO EXERCISE "EXCLUSIVE
LEGISLATION" OVER THESE ENCLAVES WITHIN THE MEANING OF ART. I, SEC. 8,
CL. 17, OF THE CONSTITUTION, WHICH READS IN RELEVANT PART:  "THE
CONGRESS SHALL HAVE POWER  ...  TO EXERCISE EXCLUSIVE LEGISLATION IN
ALL CASES WHATSOEVER" OVER THE DISTRICT OF COLUMBIA AND "TO EXERCISE
LIKE AUTHORITY OVER ALL PLACES PURCHASED BY THE CONSENT OF THE
LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION
OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL
BUILDINGS." 

THE POWER OF CONGRESS OVER FEDERAL ENCLAVES THAT COME WITHIN THE
SCOPE OF ART. I, SEC. 8, CL. 17, IS OBVIOUSLY THE SAME AS THE POWER OF
CONGRESS OVER THE DISTRICT OF COLUMBIA.  THE CASES MAKE CLEAR THAT THE
GRANT OF "EXCLUSIVE" LEGISLATIVE POWER TO CONGRESS OVER ENCLAVES THAT
MEET THE REQUIREMENTS OF ART. I, SEC. 8, CL. 17, BY ITS OWN WEIGHT,
BARS STATE REGULATION WITHOUT SPECIFIC CONGRESSIONAL ACTION.  THE
QUESTION WAS SQUARELY PRESENTED IN PACIFIC COAST DAIRY V. DEPARTMENT OF
AGRICULTURE, 318 U.S. 285, WHICH INVOLVED, AS DOES THE PRESENT
LITIGATION, CALIFORNIA'S ACT AND AN ATTEMPT TO FIX THE PRICES AT WHICH
MILK COULD BE SOLD AT MOFFETT FIELD.  WE HELD THAT "SALES CONSUMMATED
WITHIN THE ENCLAVE CANNOT BE REGULATED" BY CALIFORNIA BECAUSE OF THE
CONSTITUTIONAL GRANT OF "EXCLUSIVE LEGISLATION" RESPECTING LANDS
PURCHASED BY THE UNITED STATES WITH THE CONSENT OF THE STATE (ID., AT
294), EVEN THOUGH THERE WAS NO CONFLICTING FEDERAL REGULATION. 

THUS THE FIRST QUESTION HERE IS WHETHER THE THREE ENCLAVES IN
QUESTION WERE "PURCHASED BY THE CONSENT OF THE LEGISLATURE" OF
CALIFORNIA WITHIN THE MEANING OF ART. I, SEC. 8, CL. 17. 

THE POWER OF THE FEDERAL GOVERNMENT TO ACQUIRE LAND WITHIN A STATE BY
PURCHASE OR BY CONDEMNATION WITHOUT THE CONSENT OF THE STATE IS WELL
ESTABLISHED.  KOHL V. UNITED STATES, 91 U.S. 367, 371.  BUT WITHOUT THE
STATE'S "CONSENT" THE UNITED STATES DOES NOT OBTAIN THE BENEFITS OF
ART. I, SEC. 8, CL. 17, ITS POSSESSION BEING SIMPLY THAT OF AN ORDINARY
PROPRIETOR.  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 141-142.  IN
THAT EVENT, HOWEVER, IT WAS HELD IN FT. LEAVENWORTH R. CO. V. LOWE, 114
U.S. 525, 541, 542, THAT A STATE COULD COMPLETE THE "EXCLUSIVE"
JURISDICTION OF THE FEDERAL GOVERNMENT OVER SUCH AN ENCLAVE BY "A
CESSION OF LEGISLATIVE AUTHORITY AND POLITICAL JURISDICTION." 

THUS IF THE UNITED STATES ACQUIRES WITH THE "CONSENT" OF THE STATE
LEGISLATURE LAND WITHIN THE BORDERS OF THAT STATE BY PURCHASE OR
CONDEMNATION FOR ANY OF THE PURPOSES MENTIONED IN ART. I, SEC. 8, CL.
17, OR IF THE LAND IS ACQUIRED WITHOUT SUCH CONSENT AND LATER THE STATE
GIVES ITS "CONSENT," THE JURISDICTION OF THE FEDERAL GOVERNMENT BECOMES
"EXCLUSIVE."  SINCE 1940 CONGRESS HAS REQUIRED THE UNITED STATES TO
ASSENT TO THE TRANSFER OF JURISDICTION OVER THE PROPERTY, HOWEVER IT
MAY BE ACQUIRED.  (FN30)  IN EITHER EVENT - WHETHER THE LAND IS
ACQUIRED BY PURCHASE OR CONDEMNATION ON THE ONE HAND OR BY CESSION ON
THE OTHER - A STATE MAY CONDITION ITS "CONSENT" UPON ITS RETENTION OF
JURISDICTION OVER THE LANDS CONSISTENT WITH THE FEDERAL USE.  JAMES V.
DRAVO CONTRACTING CO., SUPRA, 146-149.  MOREOVER, AS STATED IN STEWART
& CO. V. SADRAKULA, 309 U.S. 94, 99-100:    "THE CONSTITUTION DOES NOT
COMMAND THAT EVERY VESTIGE OF THE LAWS OF THE FORMER SOVEREIGNTY MUST
VANISH.  ON THE CONTRARY ITS LANGUAGE HAS LONG BEEN INTERPRETED SO AS
TO PERMIT THE CONTINUANCE UNTIL ABROGATED OF THOSE RULES EXISTING AT
THE TIME OF THE SURRENDER OF SOVEREIGNTY WHICH GOVERN THE RIGHTS OF THE
OCCUPANTS OF THE TERRITORY TRANSFERRED.  THIS ASSURES THAT NO AREA
HOWEVER SMALL WILL BE LEFT WITHOUT A DEVELOPED LEGAL SYSTEM FOR PRIVATE
RIGHTS."    CALIFORNIA HAS HAD SEVERAL STATUTORY PROVISIONS RELEVANT TO
OUR PROBLEM UNDER ART. I, SEC.  8, CL. 17.  ONE PERTAINED TO
ACQUISITION OF LAND BY THE UNITED STATES THROUGH "PURCHASE OR
CONDEMNATION."  (FN31)  ANOTHER CONCERNED LAND "CEDED OR GRANTED" BY
CALIFORNIA TO THE UNITED STATES.  (FN32) 

THOSE PROVISIONS WERE CODIFIED IN 1943, ACQUISITIONS BY "PURCHASE OR
CONDEMNATION" APPEARING IN ONE SECTION (FN33) AND ACQUISITIONS BY
CESSION IN ANOTHER.  (FN34)  ANOTHER SECTION OF THE CODIFICATION, AFTER
STATING THAT CALIFORNIA "CEDES" TO THE UNITED STATES "EXCLUSIVE
JURISDICTION" OVER ALL LANDS "HELD, OCCUPIED, OR RESERVED" BY THE
UNITED STATES "FOR MILITARY PURPOSES OR DEFENSE," PROVIDES THAT A
DESCRIPTION OF THE LAND BY METES AND BOUNDS AND A MAP OR PLAT OF THE
LAND "SHALL FIRST BE FILED IN THE PROPER OFFICE OF RECORD IN THE COUNTY
IN WHICH THE LANDS ARE SITUATED."   (FN35) 

MOST OF THE TRANSACTIONS CREATING THESE THREE FEDERAL ENCLAVES TOOK
PLACE BETWEEN 1942 AND 1944, SOME IN 1946 (FN36) AND SOME EVEN LATER. 

WHETHER THE UNITED STATES HAS ACQUIRED EXCLUSIVE JURISDICTION OVER A
FEDERAL ENCLAVE IS A FEDERAL QUESTION.  AS STATED IN SILAS MASON CO. V.
TAX COMMISSION, 302 U.S. 186, 197: 

"THE QUESTION OF EXCLUSIVE TERRITORIAL JURISDICTION IS DISTINCT. 
THAT QUESTION ASSUMES THE ABSENCE OF ANY INTERFERENCE WITH THE EXERCISE
OF THE FUNCTIONS OF THE FEDERAL GOVERNMENT AND IS WHETHER THE UNITED
STATES HAS ACQUIRED EXCLUSIVE LEGISLATIVE AUTHORITY SO AS TO DEBAR THE
STATE FROM EXERCISING ANY LEGISLATIVE AUTHORITY, INCLUDING ITS TAXING
AND POLICE POWER, IN RELATION TO THE PROPERTY AND ACTIVITIES OF
INDIVIDUALS AND CORPORATIONS WITHIN THE TERRITORY.  THE ACQUISITION OF
TITLE BY THE UNITED STATES IS NOT SUFFICIENT TO EFFECT THAT EXCLUSION. 
IT MUST APPEAR THAT THE STATE, BY CONSENT OR CESSION, HAS TRANSFERRED
TO THE UNITED STATES THAT RESIDUUM OF JURISDICTION WHICH OTHERWISE IT
WOULD BE FREE TO EXERCISE  ...  .  IN THIS INSTANCE, THE SUPREME COURT
OF WASHINGTON HAS HELD THAT THE STATE HAS NOT YIELDED EXCLUSIVE
LEGISLATIVE AUTHORITY TO THE FEDERAL GOVERNMENT  ...  .  THAT QUESTION,
HOWEVER, INVOLVING THE EXTENT OF THE JURISDICTION OF THE UNITED STATES,
IS NECESSARILY A FEDERAL QUESTION." 

AS ALREADY NOTED, A CALIFORNIA STATUTE "CEDES TO THE UNITED STATES
EXCLUSIVE JURISDICTION" OVER DESCRIBED LANDS PROVIDED A DESCRIPTION OF
THE METES AND BOUNDS AND A MAP OF THE LAND FIRST BE FILED.   (FN37)
CALIFORNIA EARNESTLY ARGUES THAT "CEDES" IN THAT CONTEXT INCLUDES
"PURCHASES" AND "ACQUISITIONS BY CONDEMNATION."  BUT THE CALIFORNIA
STATUTES HAVE CONSISTENTLY DRAWN THE LINE BETWEEN ACQUISITIONS BY
CESSION ON THE ONE HAND AND ALL OTHER ACQUISITIONS ON THE OTHER.  THAT
IS THE GIST OF A RECENT OPINION OF THE ATTORNEY GENERAL OF CALIFORNIA,
IN WHICH HE TREATS AN ACQUISITION BY CESSION AS AN ALTERNATIVE TO
ACQUISITION IN OTHER WAYS AND RULES THAT WHEN THE ACQUISITION IS BY
MEANS OTHER THAN CESSION NO MAP OF THE LAND NEED FIRST BE FILED. 
(FN38)  THAT SEEMS TO US TO BE THE FAIR MEANING OF THE STATUTORY
PROVISIONS. 

THE CONDITIONS EXPRESSED IN THE CALIFORNIA ACTS, (FN39) BY WHICH
CALIFORNIA CONSENTED TO "THE PURCHASE OR CONDEMNATION" OF LAND BY THE
UNITED STATES FOR THE PRESCRIBED PURPOSES, DO NOT UNDERTAKE TO MAKE
APPLICABLE TO THE FEDERAL ENCLAVES ALL FUTURE LAWS OF CALIFORNIA. 
SINCE A STATE MAY NOT LEGISLATE WITH RESPECT TO A FEDERAL ENCLAVE
UNLESS IT RESERVED THE RIGHT TO DO SO WHEN IT GAVE ITS CONSENT TO THE
PURCHASE BY THE UNITED STATES, ONLY STATE LAW EXISTING AT THE TIME OF
THE ACQUISITION REMAINS ENFORCEABLE, NOT SUBSEQUENT LAWS.  SEE STEWART
& CO. V. SADRAKULA, SUPRA; ARLINGTON HOTEL V. FANT, 278 U.S. 439.  IF
THE PRICE-CONTROL LAWS CALIFORNIA IS NOW SEEKING TO APPLY TO SALES ON
FEDERAL ENCLAVES WERE NOT IN EFFECT WHEN THE UNITED STATES ACQUIRED
THESE LANDS, (FN40) THE CASE IS ON ALL FOURS WITH PACIFIC COAST DAIRY
V. DEPARTMENT OF AGRICULTURE, SUPRA.  THERE THE COURT HELD THAT THE
CALIFORNIA STATUTES UNDER WHICH SOME OF THE PRESENT ACQUISITIONS WERE
MADE GRANTED THE UNITED STATES EXCLUSIVE JURISDICTION OVER THE TRACTS
IN QUESTION IN SPITE OF THE EXPRESS CONDITIONS THEREIN CONTAINED (ID.,
AT 293) AND THAT THIS PRICE-CONTROL LAW WAS NOT ENFORCEABLE ON A
FEDERAL ENCLAVE IN CALIFORNIA BECAUSE IT WAS ADOPTED "LONG AFTER THE
TRANSFER OF SOVEREIGNTY."  318 U.S., AT 294.  THE UNITED STATES SEEKS
SHELTER UNDER THAT RULE, SAYING CALIFORNIA IS TRYING TO ENFORCE ITS
CURRENT REGULATORY SCHEME, NOT THE PRICE REGULATIONS IN EFFECT WHEN THE
PURCHASES WERE MADE.  YET IF THERE WERE PRICE CONTROL OF MILK AT THE
TIME OF THE ACQUISITION AND THE SAME BASIC SCHEME HAS BEEN IN EFFECT
SINCE THAT TIME, WE FAIL TO SEE WHY THE CURRENT ONE, ALBEIT IN THE FORM
OF DIFFERENT REGULATIONS, WOULD NOT REACH THOSE PURCHASES AND SALES OF
MILK ON THE FEDERAL ENCLAVE MADE FROM NONAPPROPRIATED FUNDS.  CONGRESS
COULD PROVIDE OTHERWISE AND HAS DONE SO AS RESPECTS PURCHASES AND SALES
OF MILK FROM APPROPRIATED FUNDS.  BUT SINCE THERE IS NO CONFLICTING
FEDERAL POLICY CONCERNING PURCHASES AND SALES FROM NONAPPROPRIATED
FUNDS, WE CONCLUDE THAT THE CURRENT PRICE CONTROLS OVER MILK ARE
APPLICABLE TO THESE SALES, PROVIDED THE BASIC STATE LAW AUTHORIZING
SUCH CONTROL HAS BEEN IN EFFECT SINCE THE TIMES OF THESE VARIOUS
ACQUISITIONS.  A REMAND WILL BE NECESSARY TO RESOLVE THAT QUESTION, AS
THE PRESENT RECORD DOES NOT SHOW THE PRECISE EVOLUTION OF THE PRESENT
REGULATORY SCHEME. 

THERE ALSO REMAINS ANOTHER UNCERTAINTY CONCERNING THE PURCHASES AND
SALES OF MILK OUT OF NONAPPROPRIATED FUNDS.  THERE IS A DISPUTE OVER
WHERE SOME OF THESE SALES ARE MADE.  EACH OF THE THREE ENCLAVES HAS
NUMEROUS UNITS ACQUIRED AT VARIOUS TIMES, SOME OF WHICH MAY BE SUBJECT
TO "EXCLUSIVE" FEDERAL JURISDICTION AND SOME OF WHICH MAY NOT BE.
CALIFORNIA EARNESTLY CLAIMS THAT SOME SALES OUT OF NONAPPROPRIATED
FUNDS WERE MADE ON UNITS OF LAND OVER WHICH THE UNITED STATES DOES NOT
HAVE "EXCLUSIVE" JURISDICTION.  SHE MAKES THE CLAIM AS RESPECTS SOME
MILK USED AT TRAVIS, SOME AT CASTLE, AND SOME AT OAKLAND. 

WE DO NOT RESOLVE THE QUESTION BUT VACATE THE JUDGMENT OF THE
DISTRICT COURT INSOFAR AS IT RELATES TO PURCHASES AND SALES OF MILK
MADE FROM NONAPPROPRIATED FUNDS AND REMAND THE CASE TO THE DISTRICT
COURT TO DETERMINE WHETHER AT THE RESPECTIVE TIMES WHEN THE VARIOUS
TRACTS IN QUESTION WERE ACQUIRED CALIFORNIA'S BASIC PRICE-CONTROL LAW
AS RESPECTS MILK WAS IN EFFECT.  IF SO, JUDGMENT ON THIS CLASS OF
PURCHASES AND SALES SHOULD BE FOR APPELLANTS.  IF NOT, THEN THE
DISTRICT COURT MUST MAKE PARTICULARIZED FINDINGS AS TO WHERE THE
PURCHASES AND SALES OF MILK FROM NONAPPROPRIATED FUNDS ARE MADE AND
WHETHER OR NOT THOSE TRACTS ARE AREAS OVER WHICH THE UNITED STATES HAS
"EXCLUSIVE" JURISDICTION WITHIN THE MEANING OF ART. I, SEC. 8, CL. 17
OF THE CONSTITUTION. 

MOREOVER, THE DECREE MUST BE MODIFIED TO REFLECT THE CHANGE IN
FEDERAL PROCUREMENT POLICY AS RESPECTS PRODUCERS, ALREADY NOTED. 
(FN41) 

ACCORDINGLY THE JUDGMENT IS AFFIRMED IN PART AND IN PART VACATED AND
REMANDED.  IT IS SO ORDERED. 

FN1  THE UNITED STATES HAS ABANDONED A FURTHER CLAIM THAT CALIFORNIA
CANNOT CONSTITUTIONALLY ENFORCE HER PRICE REGULATIONS AGAINST PRODUCERS
WITH RESPECT TO MILK SOLD TO DISTRIBUTORS FOR PROCESSING AND ULTIMATELY
RESOLD TO THE UNITED STATES.  THE ABANDONMENT OF THIS CLAIM IS NOT A
CONFESSION OF ERROR BUT ONLY A DECISION NOT TO ASSERT IMMUNITY FROM
THAT PRICE CONTROL AS A MATTER OF PROCUREMENT POLICY. 

IT APPEARS THAT WHILE CALIFORNIA HAS AUTHORIZED HER DIRECTOR OF
AGRICULTURE TO ESTABLISH MINIMUM WHOLESALE PRICES FOR BOTH "FLUID MILK"
AND "FLUID CREAM," AND THAT WHILE THE DIRECTOR HAS DONE SO FOR A
MARKETING AREA ENCOMPASSING ANOTHER BASE, ALL OF THE MINIMUM WHOLESALE
PRICE REGULATIONS APPEARING IN THE RECORD PERTAIN ONLY TO "FLUID
MILK." 

IN VIEW OF THESE FACTS, THE CASE NOW INVOLVES ONLY CALIFORNIA'S POWER
TO ENFORCE HER MINIMUM WHOLESALE PRICES FOR "FLUID MILK" WITH RESPECT
TO SALES TO THE UNITED STATES AT THE THREE BASES INVOLVED. 

FN2  ARTICLE I, SEC. 8, CL. 17, OF THE CONSTITUTION GIVES CONGRESS
POWER "TO EXERCISE EXCLUSIVE LEGISLATION  ...  OVER ALL PLACES
PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE
SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES, ARSENALS, DOCK
YARDS, AND OTHER NEEDFUL BUILDINGS." 

FN3  CALIF. AGR.  CODE, SEC. 4350. 

FN4  ID., SEC. 4352. 

FN5  ID., SEC. 4361. 

FN6  ID., SEC. 4410. 

FN7  10 U.S.C. SEC. 2305(C).  THIS STATUTE IS A RECODIFICATION
WITHOUT SUBSTANTIAL CHANGE OF THE ARMED SERVICES PROCUREMENT ACT OF
1947.  SEE S. REP. NO. 2484, 84TH CONG., 2D SESS.  19, 20-21. 

FN8  ID., SEC. 2304(A)(8)(9)(10)(15). 

FN9  ARMED SERVICES PROCUREMENT REGULATION (REVISED TO APRIL 20,
1959), PARA. 1-301. 

FN10  IBID. 

FN11  ID., PARA. 1-302.2. 

FN12  ID., PARA. 1-301. 

FN13  ID., PARA. 3-801.1. 

FN14  ID., PARA. 3-101(A) (ARMY PROCUREMENT PROCEDURE). 

FN15  ID., PARA. 3-101. 

FN16  IBID. 

FN17  IBID. 

FN18  10 U.S.C. SEC. 2304(A)(10). 

FN19  H.R. REP. NO. 109, 80TH CONG., 1ST SESS. 6. 

FN20  SECTION 2304(F), WHICH INCORPORATES THE WALSH-HEALEY ACT (41
U.S.C. SECS. 35-45), THE DAVIS-BACON ACT (40 U.S.C. SEC. 276A), AND THE
EIGHT HOUR LAW (40 U.S.C. SECS. 324, 325A). 

FN21  THE ILL WHICH SEC. 2304(G) WAS DESIGNED TO CURE WAS A SERVICE
EMPLOYED NEGOTIATING PROCESS WHICH DID NOT ALWAYS PRODUCE LOW ENOUGH
PRICES.  INFORMAL QUOTATIONS, USUALLY ACCOMPANIED BY A BREAKDOWN OF
COST ELEMENTS, WERE FIRST SECURED FROM AS MANY SOURCES AS PRACTICABLE. 
SEPARATE NEGOTIATIONS WITH ONLY A FEW LOW BIDDERS WERE THEN UNDERTAKEN
IN ORDER TO REDUCE THE PRICE BY ELIMINATING UNNECESSARY OR UNJUSTIFIED
CHARGES.  CONGRESS AND THE COMPTROLLER GENERAL CONDEMNED THIS KIND OF
"NEGOTIATION" BECAUSE: 

"IT IS OUR OPINION THAT THE AUTHORITY TO NEGOTIATE DOES NOT, OF
ITSELF, WARRANT THE CURTAILMENT OF COMPETITION.  YET THIS MAY BE THE
RESULT WHERE SEVERAL PROPOSALS ARE RECEIVED AND THE CONTRACTING OFFICER
DECIDES TO NEGOTIATE WITH ONLY ONE OFFEROR OR TO AWARD A CONTRACT
WITHOUT DISCUSSION WITH ANY OFFEROR  ...  .  WE BELIEVE THAT  ...
NEGOTIATIONS SHOULD BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO
SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS
CONSIDERED."  H.R. REP. NO. 1959, 86TH CONG., 2D SESS. 17.  SEE ALSO S.
REP. NO. 1900, 86TH CONG., 2D SESS. 27; S. REP. NO. 1884, 87TH CONG.,
2D SESS. 8-9, 21-22; H.R. REP. NO. 1638, 87TH CONG., 2D SESS. 4-5. 

THE EXACT MEANING OF THE "RATES OR PRICES ...  FIXED BY LAW OR
REGULATION" EXCEPTION TO THIS "DISCUSSION" REQUIREMENT IS NOT TOO
CLEAR.  THE ONE SHORT REFERENCE TO SEC. 2304(G) IN THE CONGRESSIONAL
DEBATES IMPLIES THAT A PROCUREMENT OFFICER COULD ACCEPT ANY PRICE SET
"BY LAW OR REGULATION" WITHOUT ATTEMPTING TO GET A BETTER PRICE FROM
THE OFFEROR: 

"SECTION (E) OF THE BILL SEC. 2304(G) DEFINES WHAT ACTIONS SHALL
CONSTITUTE A NEGOTIATION.  IT REQUIRES THAT THERE BE DISCUSSIONS
BETWEEN BIDDER AND GOVERNMENT EXCEPTING IN THOSE LIMITED INSTANCES
WHERE IT WOULD BE FUTILE TO HAVE DISCUSSIONS; FOR EXAMPLE, PRICES FIXED
BY RATEMAKING AUTHORITY OR WHERE THERE IS AN ESTABLISHED MARKET, AS IN
FOODSTUFFS."  CONG. REC., JUNE 7, 1962, P. 9234. 

BUT IN VIEW OF THE HISTORY OF THE "IMPRACTICABLE TO OBTAIN
COMPETITION" EXCEPTION IN SEC. 2304(A)(10), WITH WHICH THIS EXCEPTION
TO THE DISCUSSION REQUIREMENT IS LINKED (SEE S. REP. NO. 1900, 86TH
CONG., 2D SESS. 12), AND THE HOLDING IN CALIFORNIA COMM'N, 355 U.S., AT
542-543, IT IS IMPOSSIBLE TO READ THIS EXCEPTION EITHER AS REQUIRING
PROCUREMENT BY NEGOTIATION RATHER THAN BY COMPETITIVE BIDDING - OR AS
ABSOLUTELY PROHIBITING NEGOTIATION WHEN PRICES ARE FIXED BY STATE LAW. 

PROCUREMENT STATUTES.  SEE H.R.  REP. NO. 109, 80TH CONG., 1ST SESS.
8.  IT WAS "INTENDED TO PLACE THE MAXIMUM RESPONSIBILITY FOR DECISIONS
AS TO WHEN IT IS IMPRACTICABLE TO SECURE COMPETITION IN THE HANDS OF
THE AGENCY CONCERNED."  S. REP. NO. 571, 80TH CONG., 1ST SESS. 8.  THE
HOUSE FLOOR MANAGER EXPLAINED: 

"THIS SUBSECTION WILL PERMIT THE SERVICES TO NEGOTIATE CONTRACTS IN
SITUATIONS WHERE THERE IS AN ABSENCE OF COMPETITIVE CONDITIONS.  THE
MOST TYPICAL SITUATION INVOLVES AN ARTICLE WHICH CAN BE OBTAINED FROM
ONLY ONE SUPPLIER.  BUT THE AUTHORITY WILL BE AVAILABLE EVEN WHERE
THERE ARE MULTIPLE SOURCES IF REAL COMPETITION IS NONETHELESS
LACKING."  93 CONG. REC. 2319. 

NEGOTIATION WAS AUTHORIZED IN EXCEPTIONAL SITUATIONS, SUCH AS SEC.
2304(A)(10), TO "PROMOTE THE BEST INTERESTS OF THE GOVERNMENT."  IBID.
SEE ID., AT 2316. 

IN ORDER TO ALLAY FEARS BY SOME THAT "NEGOTIATION" "MEANS  ...  THE
SELECTION BY MORE OR LESS ARBITRARY METHODS OF A SUPPLIER AND THE
PAYMENT TO HIM OF A PRICE WHICH HE HAS BEEN ABLE TO SET WITHOUT FEAR OF
COMPETITION  ...  ," THE FLOOR MANAGER EXPLAINED THAT: 

"EXPERIENCE HAS SHOWN THAT BY CAREFUL NEGOTIATION AND BY DRAFTING A
SUITABLE CONTRACT IT IS FREQUENTLY POSSIBLE TO SECURE SUBSTANTIAL
SAVINGS FOR THE GOVERNMENT.  IN FACT, NEGOTIATION PROPERLY EMPLOYED
OFTEN PROMOTES AND INTENSIFIES COMPETITION."  ID., AT 2320.    IT IS
NOW SUGGESTED THAT CERTAIN STATEMENTS BY WITNESSES AT COMMITTEE
HEARINGS SHOW THAT BY ENACTING SEC. 2304(A)(10) CONGRESS INDICATED THAT
IT DID NOT INTEND TO ALLOW THE SERVICES TO SEEK PRICES LOWER THAN THOSE
ESTABLISHED BY STATE REGULATORY AGENCIES.  CLEARLY THOSE STATEMENTS
REINFORCE THE CONGRESSIONAL PURPOSE TO ALLOW "NEGOTIATION" "WHERE
PRICES ARE SET BY LAW OR REGULATION."  S. REP. NO. 571, 80TH CONG., 1ST
SESS. 8.  SEE HEARINGS ON H.R. 1366 BEFORE THE SENATE COMMITTEE ON
ARMED SERVICES, 80TH CONG., 1ST SESS. 15 (JULY 1, 1947); HEARINGS ON
H.R.  1366 AND H.R. 3394 BEFORE THE SENATE COMMITTEE ON ARMED SERVICES,
80TH CONG., 1ST SESS. 29; HEARINGS ON H.R. 1366 BEFORE SUBCOMMITTEE NO.
6 OF THE HOUSE COMMITTEE ON ARMED SERVICES, 80TH CONG., 1ST SESS., NO.
51, AT 521.  BUT THEY IN NO WAY SUGGEST THAT NEGOTIATIONS MUST BE HAD
UNLESS THEY WILL "PROMOTE THE BEST INTERESTS OF THE GOVERNMENT" (93
CONG. REC. 2319), AND THEY DO NOT IMPLY THAT THE REGULATED PRICE MUST
BE ACCEPTED. 

FROM THE COMMITTEE REPORTS AND CONGRESSIONAL DEBATES PREVIOUSLY
CITED, IT SEEMS THAT A RECENT SENATE REPORT, ISSUED AFTER CALIFORNIA
COMM'N WAS DECIDED, CORRECTLY INTERPRETS THE PURPOSE OF SEC.
2304(A)(10): 

"AN EXAMINATION OF THE 15 ILLUSTRATIVE CIRCUMSTANCES IN WHICH
EXCEPTION 10 MAY BE USED READILY REVEALS THAT SOME OF THESE
CIRCUMSTANCES NECESSARILY INVOLVE ONLY ONE SOURCE OF SUPPLY.  OTHERS
OFFER THE OPPORTUNITY FOR COMPETITION."  S. REP. NO. 1900, 86TH CONG.,
2D SESS. 12. 

ONE OF THE ILLUSTRATIONS WAS "STEVEDORING, TERMINAL SERVICES, WHEN
RATES ARE PRESCRIBED BY LAW."  IBID. 

FN22  10 U.S.C. SEC. 2304(A)(8). 

FN23  S. REP. NO. 571, 80TH CONG., 1ST SESS. 7. 

FN24  10 U.S.C. SEC. 2305(C). 

FN25  ARMED SERVICES PROCUREMENT REGULATION (REVISED TO APRIL 20,
1959), PARA. 3-101. 

FN26  IBID. 

FN27  SEE, E.G., 75 STAT. 377. 

FN28  10 U.S.C. SEC. 2303. 

FN29  75 STAT. 377-378. 

FN30  40 U.S.C. SEC. 255 PROVIDES IN PART: 

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE OBTAINING OF
EXCLUSIVE JURISDICTION IN THE UNITED STATES OVER LANDS OR INTERESTS
THEREIN WHICH HAVE BEEN OR SHALL HEREAFTER BE ACQUIRED BY IT SHALL NOT
BE REQUIRED; BUT THE HEAD OR OTHER AUTHORIZED OFFICER OF ANY DEPARTMENT
OR INDEPENDENT ESTABLISHMENT OR AGENCY OF THE GOVERNMENT MAY, IN SUCH
CASES AND AT SUCH TIMES AS HE MAY DEEM DESIRABLE, ACCEPT OR SECURE FROM
THE STATE IN WHICH ANY LANDS OR INTERESTS THEREIN UNDER HIS IMMEDIATE
JURISDICTION, CUSTODY, OR CONTROL ARE SITUATED, CONSENT TO OR CESSION
OF SUCH JURISDICTION, EXCLUSIVE OR PARTIAL, NOT THERETOFORE OBTAINED,
OVER ANY SUCH LANDS OR INTERESTS AS HE MAY DEEM DESIRABLE AND INDICATE
ACCEPTANCE OF SUCH JURISDICTION ON BEHALF OF THE UNITED STATES BY
FILING A NOTICE OF SUCH ACCEPTANCE WITH THE GOVERNOR OF SUCH STATE OR
IN SUCH OTHER MANNER AS MAY BE PRESCRIBED BY THE LAWS OF THE STATE
WHERE SUCH LANDS ARE SITUATED.  UNLESS AND UNTIL THE UNITED STATES HAS
ACCEPTED JURISDICTION OVER LANDS HEREAFTER TO BE ACQUIRED AS AFORESAID,
IT SHALL BE CONCLUSIVELY PRESUMED THAT NO SUCH JURISDICTION HAS BEEN
ACCEPTED." 

FN31  CAL. STAT. 1939, C. 710, SEC. 34, PROVIDES: 

"THE LEGISLATURE CONSENTS TO THE PURCHASE OR CONDEMNATION BY THE
UNITED STATES OF ANY TRACT OF LAND WITHIN THIS STATE FOR THE PURPOSE OF
ERECTING FORTS, MAGAZINES, ARSENALS, DOCKYARDS, AND OTHER NEEDFUL
BUILDINGS, UPON THE EXPRESS CONDITION THAT ALL CIVIL PROCESS ISSUED
FROM THE COURTS OF THIS STATE, AND SUCH CRIMINAL PROCESS AS MAY ISSUE
UNDER THE AUTHORITY OF THIS STATE, AGAINST ANY PERSON CHARGED WITH
CRIME, MAY BE SERVED AND EXECUTED THEREON IN THE SAME MODE AND MANNER
AND BY THE SAME OFFICERS AS IF THE PURCHASE OR CONDEMNATION HAD NOT
BEEN MADE AND UPON THE FURTHER EXPRESS CONDITION THAT THE STATE
RESERVES ITS ENTIRE POWER OF TAXATION WITH RESPECT TO SUCH TRACTS OF
LAND AND MAY LEVY AND COLLECT ALL TAXES NOW OR HEREAFTER IMPOSED IN THE
SAME MANNER AND TO THE SAME EXTENT AS IF THIS CONSENT HAD NOT BEEN
GRANTED." 

FN32  IBID.: 

"THE AUTHORITY TO SERVE CIVIL AND CRIMINAL PROCESS AND POWER TO TAX
HEREINABOVE RESERVED TO THE STATE IN THE CASE OF THE PURCHASE OR
CONDEMNATION BY THE UNITED STATES OF ANY TRACT OF LAND WITHIN THIS
STATE SHALL, ANY LAW TO THE CONTRARY NOTWITHSTANDING, ALSO BE RESERVED
TO THE STATE WITH RESPECT TO ANY TRACT OF LAND OVER WHICH ANY
JURISDICTION IS CEDED OR GRANTED BY THE STATE TO THE UNITED STATES
UNDER ANY LAW OF THIS STATE NOW IN EFFECT OR WHICH MAY HEREAFTER BE
ADOPTED, THE AUTHORITY AND POWER HEREIN RESERVED BY THE STATE TO BE
EXERCISED IN THE SAME MANNER AND TO THE SAME EXTENT AS IF SUCH
JURISDICTION HAD NOT BEEN CEDED OR GRANTED BY THE STATE TO THE UNITED
STATES." 

FN33  CALIF. GOV. CODE, SEC. 111. 

FN34  ID., SEC. 113. 

FN35  ID., SEC. 114. 

FN36  IN THE CASE OF OAKLAND, THE UNITED STATES HAVING FIRST ACCEPTED
JURISDICTION IN 1943, ACCEPTED AGAIN IN 1949 AFTER ENACTMENT IN 1946
(CALIF.  GOV.  CODE, SEC. 126) OF A NEW AND EXPANDED STATUTORY
PROVISION WHEREBY CALIFORNIA GAVE ITS CONSENT "TO THE ACQUISITION" BY
THE UNITED STATES OF LAND IN THAT STATE.  THIS PROVISION REQUIRED THAT
FINDINGS BE MADE BY THE STATE LANDS COMMISSION, AFTER HEARINGS, THAT
THE STATUTORY CONDITIONS HAD BEEN MET.  THE COMMISSION MADE THE
FINDINGS DESCRIBING BY METES AND BOUNDS THREE PARCELS OF LAND AT
OAKLAND AS RESPECTS WHICH CALIFORNIA CONSENTED TO THE "EXCLUSIVE"
JURISDICTION OF THE UNITED STATES. 

FN37  NOTE 35, SUPRA. 

FN38  23 OP. ATTY. GEN. CALIF. 14. 

FN39  NOTE 31, SUPRA. 

FN40  WE DO NOT REACH THE QUESTION THAT WOULD BE PRESENTED WHERE A
STATE LAW IN EFFECT AT THAT TIME WAS LATER REPEALED AND SUBSEQUENTLY
REENACTED. 

FN41  SEE NOTE 1, SUPRA. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE GOLDBERG
JOIN, DISSENTING IN PART. 

                               I. 

I DO NOT DOUBT THAT CONGRESS IN THE EXERCISE OF ITS WAR POWER (FN1)
COULD BY VIRTUE OF THE SUPREMACY CLAUSE (FN2) PROVIDE THAT AN OTHERWISE
VALID STATE LAW AFFECTING THE PRICE OF MILK SHALL NOT APPLY TO MILK
PURCHASED WITH FEDERAL FUNDS FOR USE AT THESE MILITARY INSTALLATIONS. 
BUT I CANNOT AGREE THAT CONGRESS HAS DONE SO.  I AM UNABLE TO FIND
EITHER IN THE TERMS OF THE RELEVANT LEGISLATION OR IN ITS HISTORY ANY
EVIDENCE OF A CONGRESSIONAL PURPOSE TO IMMUNIZE THESE FEDERAL PURCHASES
FROM THE GENERALLY APPLICABLE CALIFORNIA MINIMUM PRICE REGULATIONS. 
THE CALIFORNIA STATUTES REGULATING ITS MILK INDUSTRY ARE ADMITTEDLY A
VALID EXERCISE OF THAT STATE'S POWER TO LEGISLATE FOR THE GENERAL
HEALTH AND WELFARE OF ITS PEOPLE, AND SERVE THE IMPORTANT FUNCTION OF
INSURING STABILITY IN THE PRODUCTION AND SUPPLY OF A VITAL COMMODITY. 
IN PENN DAIRIES V. MILK CONTROL COMM'N, 318 U.S. 261, THE COURT
EMPHASIZED THAT "AN UNEXPRESSED PURPOSE OF CONGRESS TO SET ASIDE
STATUTES OF THE STATES REGULATING THEIR INTERNAL AFFAIRS IS NOT LIGHTLY
TO BE INFERRED AND OUGHT NOT TO BE IMPLIED WHERE THE LEGISLATIVE
COMMAND, READ IN THE LIGHT OF ITS HISTORY, REMAINS AMBIGUOUS."  318
U.S., AT 275.  I THINK THAT THE CONGRESSIONAL PURPOSE IN THE PRESENT
CASE IS LESS THAN AMBIGUOUS - THAT CONGRESS HAS IN FACT MANIFESTED A
PRESUMPTION AND A DESIRE THAT VALID STATE WELFARE LEGISLATION SUCH AS
THIS IS NOT TO BE UNDERMINED BY THE PROCUREMENT ACTIVITIES OF THE
FEDERAL GOVERNMENT.  (FN3) 

IN THE PENN DAIRIES CASE THE COURT HELD THAT THE STATE OF
PENNSYLVANIA COULD ENFORCE ITS MILK MARKETING STATUTE AGAINST SUPPLIERS
DEALING WITH THE FEDERAL MILITARY ESTABLISHMENT.  IT WAS HELD THAT THE
FEDERAL PROCUREMENT LEGISLATION THEN IN EFFECT CONTAINED NO EVIDENCE OF
A POLICY TO OVERRIDE STATE REGULATORY LEGISLATION OF THIS TYPE.  318
U.S., AT 272-275.  A DIFFERENT RESULT WAS REACHED IN CALIFORNIA COMM'N
V. UNITED STATES, 355 U.S. 534, WHERE THE COURT HELD THAT CALIFORNIA
COULD NOT APPLY ITS LAW REGULATING INTRASTATE TRANSPORTATION RATES TO
THE CARRIAGE OF STRATEGIC MILITARY SUPPLIES OF THE UNITED STATES.  THE
COURT DISCUSSED AT LENGTH THE PECULIARLY BURDENSOME EFFECT THAT THE
STATE REGULATION THERE INVOLVED WOULD HAVE UPON THE SHIPMENT OF THIS
KIND OF FREIGHT, STRESSING THE DIFFICULTY AND DELAYS INVOLVED IN
CLASSIFYING SUCH GOODS UNDER EXISTING STATE TARIFFS, AND THE IMPORTANCE
TO THE NATIONAL SECURITY OF SECRECY AND RAPID MOVEMENT.  355 U.S., AT
544-546.  REGARDLESS OF ANY IMPACT ON TRANSPORTATION COSTS, THEREFORE,
ENFORCEMENT OF THE STATE'S REGULATORY SCHEME WAS BARRED BECAUSE IT
CONSTITUTED A DIRECT INTERFERENCE WITH THE PERFORMANCE OF A VITAL
FEDERAL FUNCTION.  M'CULLOCH V. MARYLAND, 4 WHEAT.  316.  THE OPINION
IN THE CALIFORNIA COMMISSION CASE ALSO DISCUSSED THE 1947 ARMED
SERVICES PROCUREMENT ACT, (FN4) BUT NOWHERE SUGGESTED THAT THE 1947 ACT
HAD CHANGED THE LAW UPON WHICH THE DECISION IN PENN DAIRIES HAD
RESTED.  RATHER, THE COURT DISTINGUISHED THE PENN DAIRIES CASE ON THE
GROUND THAT THE PENNSYLVANIA MILK MARKETING STATUTE HAD NOT SUBJECTED
THE NATIONAL GOVERNMENT OR ITS OFFICERS TO ANY DIRECT RESTRAINTS, AS
DID THE CALIFORNIA LEGISLATION.  355 U.S. 543-544. 

THE COURT TODAY ABANDONS THAT DISTINCTION AND FOR THE FIRST TIME
SUGGESTS THAT THE 1947 ACT DID IN FACT CHANGE THE FEDERAL PROCUREMENT
POLICY IN EFFECT AT THE TIME OF THE PENN DAIRIES DECISION.  I THINK
THIS NOVEL INTERPRETATION OF THE STATUTE WHICH IS THE BASIS OF ALL
FEDERAL PROCUREMENT, CIVILIAN AS WELL AS MILITARY, (FN5) IS INCORRECT
AND THAT ANY DOUBT WHICH COULD EVER HAVE EXISTED ON THAT SCORE HAS BEEN
LAID TO REST BY THE AMENDMENT TO THE 1947 STATUTE ENACTED AT THE LAST
SESSION OF CONGRESS.  (FN6) 

THERE IS SIMPLY NO SUPPORT IN ANY OF THE PERTINENT LEGISLATIVE
MATERIALS FOR THE CONCLUSION THAT CONGRESS, SOLELY IN ORDER TO SAVE A
FEW DOLLARS, INTENDED TO PERMIT FEDERAL AGENCIES TO SUBVERT GENERAL AND
NONDISCRIMINATORY STATE REGULATORY MEASURES WHICH PROMOTE HEALTH,
SAFETY, OR BETTER WORKING OR ECONOMIC CONDITIONS.  INDEED, CONGRESS HAD
EVIDENCED A DIRECTLY CONTRARY INTENTION.  OF COURSE, AS THE DECISION IN
THE CALIFORNIA COMMISSION CASE DEMONSTRATES, STATE LAW CANNOT BE
ALLOWED TO IMPAIR FULFILLMENT OF APPROPRIATE FEDERAL FUNCTIONS, BE THEY
CIVIL OR MILITARY; SIMILARLY, STATE MEASURES CONTRARY TO NATIONAL
POLICY CANNOT BE ALLOWED TO BIND OR INHIBIT FEDERAL ACTIVITIES.  THIS
CASE, HOWEVER, PRESENTS NO SUCH PROBLEMS.  THE ONLY ISSUE IS WHETHER
CONGRESS HAS OR HAS NOT EXPRESSED A DESIRE TO BYPASS VALID STATE
REGULATORY LEGISLATION IN THE CONDUCT OF FEDERAL PROCUREMENT
ACTIVITIES. 

THE 1947 ARMED SERVICES PROCUREMENT ACT WAS PROPOSED TO CONGRESS
JOINTLY BY THE WAR AND NAVY DEPARTMENTS.  DURING WORLD WAR II, THESE
DEPARTMENTS HAD RUN THEIR PROCUREMENT OPERATIONS WITH A RELATIVELY FREE
HAND UNDER THE FIRST WAR POWERS ACT, 55 STAT. 838, WHICH AUTHORIZED
PLACEMENT OF CONTRACTS WITHOUT REGARD TO EXISTING PROVISIONS OF LAW
REGULATING PROCUREMENT PROCEDURES.  THE WAR PRODUCTION BOARD HAD EARLY
DETERMINED THAT THE TRADITIONAL METHOD OF PROCUREMENT BY ADVERTISING
FOR SEALED COMPETITIVE BIDS WAS UNSATISFACTORY DURING WARTIME, AND HAD
ADOPTED THE PRACTICE OF PLACING CONTRACTS BY DIRECT NEGOTIATION WITH
SUPPLIERS.  (FN7)  WHEN THE WAR ENDED, THE NEED AROSE TO RETURN TO A
PEACETIME SYSTEM OF PROCUREMENT, AND THE 1947 BILL WAS INTRODUCED TO
FILL THIS NEED.  AT THE SAME TIME, THE MILITARY DEPARTMENTS THOUGHT
THAT THE PREWAR PROCUREMENT STATUTES WERE "WOEFULLY INADEQUATE FOR
SUPPLYING THE TREMENDOUSLY EXPANDING NEEDS FOR MILITARY SUPPLIES AND
EQUIPMENT," (FN8) AND THAT "A TOTAL REVERSION TO PREWAR METHODS WOULD
BE UNFORTUNATE IN THE EXTREME AND WOULD SEVERELY HANDICAP THE WAR AND
NAVY DEPARTMENTS  ...  ."  (FN9) 

REFLECTING THIS ATTITUDE, THE DEPARTMENTS STRESSED THREE MAJOR
OBJECTIVES OF THE NEW LEGISLATION THEY PROPOSED: 

"1.  TO MODERNIZE PEACETIME MILITARY PROCUREMENT METHODS: 

"2.  TO UNIFY THE PROCUREMENT LEGISLATION UNDER WHICH THE WAR AND
NAVY DEPARTMENTS DO THEIR BUYING; AND: 

"3.  TO PERMIT SUSPENSION OF ADVERTISING AS A METHOD OF PROCUREMENT
UPON THE DECLARATION OF A NATIONAL EMERGENCY."  (FN10) 

THE THIRD PURPOSE, TO PROVIDE AUTHORITY TO SUSPEND COMPETITIVE
BIDDING IN A NATIONAL EMERGENCY, WAS SIMPLY INTENDED TO ELIMINATE THE
NEED FOR LEGISLATION IN TIME OF CRISIS AND THUS TO ENABLE THE DEFENSE
ESTABLISHMENT TO RESPOND IMMEDIATELY TO SUCH EMERGENCIES.  (FN11)  AS
FOR THE SECOND, PRIOR TO THE WAR EACH BRANCH OF THE ARMED SERVICES HAD
BEEN GOVERNED BY ITS OWN SEPARATE, AND SOMETIMES UNIQUE, PROCUREMENT
LEGISLATION.  THE 1947 ACT WAS INTENDED TO SUBSTITUTE A SINGLE STATUTE
FOR ALL MILITARY PROCUREMENT.  (FN12) 

THE PROPOSAL TO "MODERNIZE" THE LAW WAS PRIMARILY A PROPOSAL TO
RELAX, IN CERTAIN SITUATIONS, THE VERY STRICT RULE REQUIRING THAT
ALMOST ALL CONTRACTS BE PLACED THROUGH ADVERTISED COMPETITIVE BIDDING. 
EXPERIENCE HAD SHOWN THAT THE FORMALIZED RITUAL OF COMPETITIVE BIDDING
WAS OFTEN UNWIELDY AND UNECONOMICAL.  FOR EXAMPLE, COMPETITIVE BIDDING
WAS NOT SUITED TO CONTRACTS INVOLVING SECRET PROJECTS, NOR FOR
CONTRACTS INVOLVING ITEMS FOR WHICH THERE WAS NO EFFECTIVE COMPETITION
BETWEEN SELLERS.  FOR THESE TYPES OF PROCUREMENT, THE BILL PROPOSED
DIRECT NEGOTIATION BETWEEN THE GOVERNMENT AND AVAILABLE SUPPLIERS.  THE
HEART OF THE PROPOSED BILL WAS SEC. 2(C), NOW 10 U.S.C. SEC. 2304(A),
WHICH SET OUT A LIST OF 15 SPECIFIC EXCEPTIONS TO THE RULE OF
COMPETITIVE BIDDING.  (FN13) 

THE BILL WAS REPORTED OUT AND PASSED IN ESSENTIALLY THE SAME FORM AS
PROPOSED.  BOTH THE HOUSE AND SENATE REPORTS MADE CLEAR THAT THE
PURPOSES OF THE BILL REMAINED THE SAME.  THE HOUSE REPORT BEGAN BY
SAYING, "THIS BILL PROVIDES UNIFORM PURCHASE AUTHORITY FOR THE ARMY AND
NAVY, AND REESTABLISHES THE REQUIREMENT THAT THE ADVERTISING
COMPETITIVE BID METHOD SHALL BE FOLLOWED BY THOSE DEPARTMENTS IN
PLACING THE GREAT MAJORITY OF THEIR CONTRACTS FOR SUPPLIES AND
SERVICES."  (FN14)  THE REPORT WENT ON TO ACKNOWLEDGE THAT THERE ARE "A
LIMITED NUMBER OF SITUATIONS (IN WHICH) THE PUBLIC INTEREST REQUIRES
THAT PURCHASES BE MADE WITHOUT ADVERTISING," AND IT LISTED MOST OF THE
SPECIFIC EXCEPTIONS PROPOSED BY THE WAR AND NAVY DEPARTMENTS.  (FN15)
IT WAS AT THIS POINT, AFTER DESCRIBING THE PURPOSE TO UNIFY PROCUREMENT
LAWS AND TO RELAX THE PREVIOUSLY RIGID ADVERTISING REQUIREMENTS, THAT
THE HOUSE REPORT SUMMED UP BY DESCRIBING THE BILL AS "A COMPREHENSIVE
REVISION AND RESTATEMENT OF THE LAWS GOVERNING THE PROCUREMENT OF
SUPPLIES AND SERVICES BY THE WAR AND NAVY DEPARTMENTS."  ID., AT 6. 
(FN16)    THE BACKGROUND OF THE 1947 ACT THUS MAKES IT ABUNDANTLY CLEAR
THAT THE "REVISION AND RESTATEMENT" OF LAW INVOLVED IN ITS FORMULATION
HAD ABSOLUTELY NOTHING TO DO WITH THE ISSUE DEALT WITH IN PENN DAIRIES
AND PRESENTED BY THE CASE NOW BEFORE US.  THE DISSATISFACTION WITH
EXISTING PREWAR PROCUREMENT LAW CENTERED UPON ITS LACK OF UNIFORMITY
AND ITS APPARENT INSISTENCE UPON THE RITUAL OF COMPETITIVE BIDDING IN
SITUATIONS FOR WHICH SUCH PROCEDURES WERE UNSUITED.  NEITHER OF THESE
MAJOR CONCERNS TOUCHED UPON THE PROBLEM PRESENTED BY THE PRESENT CASE -
WHETHER FEDERAL PROCUREMENT TRANSACTIONS WERE TO UNDERMINE VALID STATE
LAWS REGULATING PRICE.  (FN17) 

EVIDENCE IS NOT LACKING, HOWEVER, OF THE ATTITUDE OF CONGRESS WITH
RESPECT TO THAT PROBLEM, AND I THINK SUCH EVIDENCE CLEARLY SHOWS THAT
CONGRESS PRESUMED AND INTENDED THAT FEDERAL PROCUREMENT WAS TO BE
CONDUCTED SUBJECT TO VALID STATE PRICE AND RATE REGULATION OF OTHERWISE
GENERAL APPLICABILITY. 

FIRST, IT IS CLEAR FROM THE ACT ITSELF THAT CONGRESS WAS NOT WILLING
TO OVERRIDE OTHER IMPORTANT SOCIAL AND ECONOMIC POLICIES IN BLIND
PURSUIT OF THE LOWEST POSSIBLE PURCHASING PRICE.  THE ACT COMMANDS
PROCUREMENT OFFICERS TO CONSIDER MANY OTHER FACTORS IN ADDITION TO
PRICE.  FOR INSTANCE, SEC. 8 DIRECTS COMPLIANCE WITH THE WALSH-HEALEY
ACT, THE DAVIS-BACON ACT AND THE EIGHT HOUR LAW.  (FN18) 

AND IN SEC. 2(B) CONGRESS DECLARED THAT A FAIR PROPORTION OF
PURCHASES AND CONTRACTS MADE UNDER THE CHAPTER SHOULD BE PLACED WITH
SMALL BUSINESS.  (FN19) 

SECONDLY, WHILE THE LEGISLATIVE HISTORY OF THE 1947 ACT CONTAINS ONLY
A FEW REFERENCES TO THE SPECIFIC PROBLEM OF PRICE-REGULATED INDUSTRIES,
THESE REFERENCES CLEARLY REFLECT AN ACKNOWLEDGMENT THAT STATE PRICE
REGULATIONS ARE TO APPLY TO SUPPLIERS DOING BUSINESS WITH THE
GOVERNMENT.  THE STATEMENTS IN QUESTION RELATE TO SEC. 2(C)(10) OF THE
BILL AS ENACTED, NOW 10 U.S.C. SEC. 2304(A)(10).  THE SUBSECTION
PROVIDES THAT THE HEAD OF AN AGENCY NEED NOT EMPLOY THE ADVERTISED BID
METHOD WHEN: 

"(10) THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES FOR WHICH
IT IS IMPRACTICABLE TO OBTAIN COMPETITION." 

THIS EXCEPTION TO THE NORMAL BIDDING PROCEDURE WAS FIRST ENACTED IN
THE ARMY APPROPRIATIONS ACT OF 1901, 31 STAT. 905.  UNTIL 1947 IT
APPLIED ONLY TO ARMY PROCUREMENT, AND ONE OF THE PURPOSES OF THE ACT
WAS TO MAKE THE EXCEPTION APPLICABLE TO ALL SERVICES.  (FN20)  IN
EXPLAINING THE EXISTING LAW ON THIS SUBJECT, UNDER SECRETARY ROYALL OF
THE WAR DEPARTMENT, CHIEF SPOKESMAN FOR THAT DEPARTMENT, MADE THE
FOLLOWING REMARKS: 

"AS TO THE EXCEPTION WHICH DEALS WITH SUPPLIES OR SERVICES FOR WHICH
IT IS IMPRACTICABLE TO SECURE COMPETITION, THIS LANGUAGE ORIGINALLY
APPEARED IN THE ACT OF MARCH 2, 1901 (31 STAT.  1905; 10 U.S.C. 1201),
AND HAS BEEN THE SUBJECT OF A NUMBER OF HIGHLY RESTRICTIVE
ADMINISTRATIVE INTERPRETATIONS.  IN MY OPINION, THIS EXCEPTION IS
INTENDED TO APPLY IN AT LEAST THESE THREE SITUATIONS: 

"1.  WHERE THE NATURE OF THE SUPPLY OR SERVICE IS SUCH THAT ONLY ONE
PERSON CAN FURNISH IT, FOR EXAMPLE, A PATENTED OR SECRET ARTICLE. 

"2.  WHERE THE PRICE OF THE SUPPLY OR SERVICE HAS BEEN LEGALLY
FIXED. 

"3.  WHERE THE PRACTICAL CIRCUMSTANCES ARE SUCH THAT IT WOULD BE
DIFFICULT TO SECURE REAL COMPETITIVE PROPOSALS BY MEANS OF ADVERTISING
FOR FORMAL BIDS."  (FN21) 

THE SENATE REPORT EXPRESSLY ACKNOWLEDGED THE APPLICABILITY TO FEDERAL
PROCUREMENT ACTIVITIES OF LAWS REGULATING PRICES: 

"THE EXPERIENCES OF THE WAR AND CONTRACTS NEGOTIATED SINCE THE WAR IN
THE FIELDS OF STEVEDORING, SHIP REPAIRS, CHARTERING OF VESSELS, WHERE
PRICES ARE SET BY LAW OR REGULATION, OR WHERE THERE IS A SINGLE SOURCE
OF SUPPLY, HAVE SHOWN CLEARLY THAT THE COMPETITIVE-BID-ADVERTISING
METHOD IS NOT ONLY FREQUENTLY IMPRACTICABLE BUT DOES NOT ALWAYS OPERATE
TO THE BEST INTERESTS OF THE GOVERNMENT."  (FN22) 

THE PLAIN MEANING OF THESE REFERENCES TO PRICE REGULATION IS THAT
BOTH CONGRESS AND THE DEPARTMENTS CONCERNED ASSUMED SUCH PRICE
REGULATION WOULD APPLY TO GOVERNMENT PURCHASES.  UNLESS THIS ASSUMPTION
IS MADE, THERE WOULD BE NO REASON FOR BELIEVING THAT COMPETITION WOULD
BE "IMPRACTICABLE" IN THESE AREAS.  FOR, ABSENT THE DUTY OF SUPPLIERS
TO COMPLY WITH UNIFORM PRICE REGULATIONS, IT WOULD NOT BE
"IMPRACTICABLE" TO ADVERTISE FOR BIDS AT COMPETITIVE PRICES. 

APART FROM THE CLEAR IMPORT OF THESE REFERENCES, IT IS ALSO
SIGNIFICANT TO NOTE THAT BOTH THE DEPARTMENTS AND THE SPONSORING
CONGRESSIONAL COMMITTEES WERE AWARE OF THE FACT THAT GOVERNMENTAL PRICE
FIXING WOULD AFFECT THE NATURE OF COMPETITION FOR PROCUREMENT
CONTRACTS.  YET NOT ONCE DID ANY SPOKESMEN FOR THE DEPARTMENTS QUESTION
OR EVEN MENTION THE RULE OF THE PENN DAIRIES DECISION, OF WHICH THEY
COULD HARDLY HAVE BEEN UNAWARE.  (FN23)  INDEED, THEY CONSISTENTLY
TESTIFIED THAT SEC. 2(C)(10) WAS, AS TO REGULATED PRICES, MERELY A
RESTATEMENT OF THE EXISTING LAW.  (FN24) 

DESPITE THIS CLEAR LEGISLATIVE HISTORY, IT IS SAID THAT THE STATUTORY
AUTHORIZATION TO "NEGOTIATE" IN CASES WHERE COMPETITIVE BIDDING IS NOT
APPROPRIATE REFLECTS A POLICY TO ALLOW PROCUREMENT OFFICERS TO BARGAIN
FOR PRICES LOWER THAN THOSE SET BY STATE REGULATORY AGENCIES.  (FN25)
IF ALL WE HAD TO GO ON WERE THIS PROVISION OF THE 1947 ACT, THERE MIGHT
BE AN ARGUABLE BASIS FOR AN INFERENCE OF SUCH A FEDERAL PROCUREMENT
POLICY, SINCE THE 1947 STATUTE NOWHERE DEFINED THE WORD "NEGOTIATION." 
(FN26)  JUST LAST YEAR, HOWEVER, CONGRESS ADDED AN AMENDMENT TO THE
ACT, IN WHICH IT DEFINED "NEGOTIATION" FOR THE FIRST TIME.  ALTHOUGH
THE DEFINITION GENERALLY ADOPTS AND IMPLEMENTS THE ORDINARY MEANING OF
THE WORD - TO BARGAIN FOR A LOWER PRICE - IT EXPRESSLY EXCEPTS PRICE
REGULATED TRANSACTIONS.  THE AMENDMENT PROVIDES IN PERTINENT PART: 

"(G)  IN ALL NEGOTIATED PROCUREMENTS IN EXCESS OF $2,500 IN WHICH
RATES OR PRICES ARE NOT FIXED BY LAW OR REGULATION AND IN WHICH TIME OF
DELIVERY WILL PERMIT, PROPOSALS SHALL BE SOLICITED FROM THE MAXIMUM
NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS
OF THE SUPPLIES OR SERVICES TO BE PROCURED, AND WRITTEN OR ORAL
DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT
PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS
CONSIDERED ... ."  (FN27) 

IN THE WORDS OF THE FLOOR MANAGER OF THE BILL IN THE HOUSE, PRICE
REGULATED TRANSACTIONS WERE EXCEPTED BECAUSE THEY WERE "INSTANCES WHERE
IT WOULD BE FUTILE TO HAVE DISCUSSIONS."  (FN28)  IN SHORT, IT IS CLEAR
THAT CONGRESS HAS NOW EXPLICITLY DECLARED WHAT WAS ADUMBRATED IN THE
LEGISLATIVE HISTORY OF THE 1947 ACT - THAT FEDERAL PROCUREMENT IS TO BE
CONDUCTED SUBJECT TO VALID STATE PRICE AND RATE REGULATIONS OF
OTHERWISE GENERAL APPLICABILITY.  (FN29) 

WHILE THE COURT'S OPINION DISCUSSES THIS LEGISLATIVE HISTORY, I READ
THE OPINION AS RESTING PRIMARILY ON THE COURT'S READING OF CERTAIN
EXECUTIVE REGULATIONS ISSUED UNDER THE AUTHORITY OF THE PROCUREMENT
LAW.  IN THIS I THINK THE COURT ERRS - FOR TWO REASONS.  FIRST, IF I AM
RIGHT IN THE VIEW THAT THE STATUTE RECOGNIZES THAT FEDERAL PROCUREMENT
IS NOT TO BE IMMUNIZED FROM THE IMPACT OF VALID STATE ECONOMIC
LEGISLATION, THEN ANY REGULATIONS TO THE CONTRARY ARE COMPLETELY
INVALID.  WILLIAMSON V. UNITED STATES, 207 U.S. 425, 462; LYNCH V.
TILDEN CO., 265 U.S. 315, 321-322; UNITED STATES V. BARNARD, 255 F.2D
583, 588-589.  SECONDLY, I THINK THAT THE REGULATIONS UPON WHICH THE
COURT RELIES DO NOT SPEAK WITH SO CLEAR A VOICE AS THE COURT WOULD HAVE
US BELIEVE.  THE COURT CAN FIND NOT A SINGLE REGULATION OF EITHER
GENERAL OR SPECIFIC APPLICATION WHICH SAYS, IN SO MANY WORDS, THAT A
PROCUREMENT OFFICER MAY IN HIS DISCRETION NEGOTIATE A CONTRACT IN
DISREGARD OF VALID STATE PRICE REGULATION. 

           II. 

I AGREE WITH THE CONCLUSION IN PART III OF THE COURT'S OPINION THAT
IT IS NOT NOW POSSIBLE TO UNDERTAKE FINAL RESOLUTION OF THE
GOVERNMENT'S CLAIM THAT THE SALES OF MILK INVOLVED IN THIS CASE TAKE
PLACE ON FEDERAL ENCLAVES WITHIN THE SCOPE OF ART. I, SEC. 8, CL. 17,
AND THEREFORE ARE IMMUNE FROM STATE REGULATION UNDER THE RULE OF
PACIFIC COAST DAIRY V. DEPARTMENT OF AGRICULTURE, 318 U.S. 285.  EVEN
IF THESE MILITARY INSTALLATIONS ARE NOW SUCH FEDERAL ENCLAVES, THIS
CLAIM WILL BE MOOT IF THE SUBSTANCE OF CALIFORNIA'S MILK REGULATION
SCHEME ANTEDATED THE ACQUISITION OF EXCLUSIVE JURISDICTION BY THE
FEDERAL GOVERNMENT.  THE CONCEPT OF EXCLUSIVE JURISDICTION "HAS LONG
BEEN INTERPRETED SO AS TO PERMIT THE CONTINUANCE UNTIL ABROGATED OF
THOSE RULES EXISTING AT THE TIME OF THE SURRENDER OF SOVEREIGNTY  ...
."  STEWART & CO. V. SADRAKULA, 309 U.S. 94, 99.  THIS QUESTION OF
PRIORITY CANNOT BE DECIDED ON THE RECORD BEFORE US, AND ITS RESOLUTION,
THEREFORE, FIRST REQUIRES A REMAND OF THE CASE TO THE DISTRICT COURT. 
IF I AM RIGHT IN MY VIEW OF THE FEDERAL PROCUREMENT LAW, A FINDING THAT
STATE REGULATION WAS IMPOSED BEFORE THESE MILITARY INSTALLATIONS BECAME
FEDERAL ENCLAVES WITHIN THE SCOPE OF THE CONSTITUTIONAL PROVISION WOULD
MEAN THAT ALL SALES OF MILK AT ISSUE IN THIS CASE, REGARDLESS OF THE
SOURCE OF FUNDS, WOULD BE SUBJECT TO THE LEGISLATION WHICH CALIFORNIA
HAS VALIDLY ENACTED TO STABILIZE AND MAKE ECONOMICALLY SOUND THE
BUSINESS OF PRODUCING AND MARKETING A COMMODITY VITAL TO THE HEALTH AND
WELFARE OF HER PEOPLE. 

FN1  U.S. CONST., ART. I, SEC. 8, CL. 12. 

FN2  U.S. CONST., ART. VI, CL. 2. 

FN3  IT IS TO BE EMPHASIZED THAT THE ISSUE IN THIS CASE IS NOT
WHETHER FEDERAL PROCUREMENT OFFICERS MUST THEMSELVES UNDERTAKE TO
ENFORCE REGULATORY STATE LAWS.  THE SCOPE OF THE STATE REGULATORY
SYSTEM AND ITS VALIDITY ARE QUESTIONS PROPERLY RESERVED FOR STATE
AGENCIES AND COURTS, ACTING UPON MEMBERS OF THE REGULATED INDUSTRY,
SUBJECT TO REVIEW BY THIS COURT OF ANY FEDERAL ISSUES PRESENTED.  THE
ONLY ISSUE IN THIS CASE IS WHETHER A STATE MAY ITSELF ENFORCE ITS
REGULATORY LEGISLATION AGAINST THOSE WHO DEAL WITH THE FEDERAL
GOVERNMENT. 

FN4  62 STAT. 21, AS AMENDED, 10 U.S.C. SECS. 2301-2314. 

FN5  IT SHOULD BE NOTED THAT THE COURT'S DECISION TODAY IS LIKELY TO
AFFECT FEDERAL AS WELL AS STATE PRICE REGULATION.  FOR EXAMPLE, A LARGE
PART OF THE MILK MARKETING REGULATION IN THE UNITED STATES IS PRESENTLY
ACCOMPLISHED UNDER FEDERAL MARKETING ORDERS PURSUANT TO SEC. 8C OF THE
AGRICULTURAL ADJUSTMENT ACT, AS AMENDED, 7 U.S.C. SEC. 608C.  SEE 7 CFR
SEC. 1001 ET SEQ. FEDERAL MARKETING ORDERS TYPICALLY MAINTAIN MINIMUM
PRODUCER PRICES, AND THIS REGULATION, IN TURN, HAS THE EFFECT OF
MAINTAINING A CERTAIN LEVEL OF HANDLER PRICES.  SEE, E.G., LEHIGH
VALLEY COOP.  V. UNITED STATES, 370 U.S. 76, 78-83.  IT IS PERHAPS FOR
THIS REASON THAT THE GOVERNMENT HAS ABANDONED ITS ATTACK UPON
CALIFORNIA'S PRODUCER PRICE REGULATION IN THE PRESENT CASE.  THE
GOVERNMENT'S CHANGE OF POSITION, HOWEVER, IS ONLY A MATTER OF
DISCRETION, AND IT CAN HARDLY BE CONTENDED THAT A SCHEME OF PRODUCER
PRICE MAINTENANCE WOULD BE ANY LESS IN CONFLICT WITH THE COURT'S VIEW
OF FEDERAL PROCUREMENT POLICY. 

I FAIL TO SEE HOW THE COURT CAN LIMIT ITS FINDING OF CONFLICT TO
STATE REGULATORY SYSTEMS.  ANY THOUGHT THAT FEDERAL MILK REGULATION MAY
SOMEHOW BE DISTINGUISHABLE NECESSARILY SUPPOSES THAT CONGRESS WOULD
HAVE DESIRED IMMUNITY FROM THE BURDENS OF STATE REGULATORY LAWS WHILE
AT THE SAME TIME ACQUIESCING TO THE VERY SAME ECONOMIC BURDENS WHEN
THEY ARISE UNDER A FEDERAL MARKETING ORDER - AN ASSUMPTION NOT ONLY
INCONGRUOUS BUT ALSO INCONSISTENT WITH EXPRESS CONGRESSIONAL POLICY TO
TREAT BOTH STATE AND FEDERAL MARKETING LEGISLATION AS COMPLEMENTARY
PARTS OF A SINGLE SCHEME. 

"IN ORDER TO OBTAIN UNIFORMITY IN THE FORMULATION, ADMINISTRATION,
AND ENFORCEMENT OF FEDERAL AND STATE PROGRAMS RELATING TO THE
REGULATION OF THE HANDLING OF AGRICULTURAL COMMODITIES OR PRODUCTS
THEREOF, THE SECRETARY IS DIRECTED TO CONFER WITH AND HOLD JOINT
HEARINGS WITH THE DULY CONSTITUTED AUTHORITIES OF ANY STATE, AND IS
AUTHORIZED TO COOPERATE WITH SUCH AUTHORITIES  ...  ."  7 U.S.C. SEC.
610(I). 

THE PROBLEM IS NOT ACADEMIC.  IT HAS ALREADY ARISEN IN ONE UNREPORTED
CASE IN WHICH A HANDLER SELLING TO A MILITARY INSTALLATION ASSERTED
IMMUNITY FROM AN OTHERWISE APPLICABLE FEDERAL MARKETING ORDER ON THE
GROUND THAT THE ORDER WAS IN CONFLICT WITH MILITARY PROCUREMENT
POLICY.  THE DISTRICT JUDGE REJECTED THE CONTENTION ON THE GROUND THAT
ANY INCREASE IN COST WOULD BE JUSTIFIED BY THE GOVERNMENT'S INTEREST IN
MAINTAINING A STABLE SUPPLY OF MILK.  KNUDSEN BROS. DAIRY, INC., V.
BENSON, CIVIL NO. 8145 (D.C.D. CONN., AUGUST 18, 1960). 

FN6  SINCE THE PRESENT CASE CALLS FOR AN IN FUTURO INJUNCTION AGAINST
ENFORCEMENT OF STATE REGULATORY STATUTES, ALL FEDERAL LAWS CURRENTLY IN
FORCE ARE RELEVANT TO OUR DECISION. 

FN7  W.P.B. DIRECTIVE NO. 2, MARCH 3, 1942.  SEE HEARINGS ON H.R.
1366 BEFORE SUBCOMMITTEE NO. 6 OF THE HOUSE COMMITTEE ON ARMED
SERVICES, 80TH CONG., 1ST SESS., NO. 51, AT 469 (FEBRUARY 4, 1947). 
(HEREINAFTER CITED AS FEBRUARY HOUSE HEARINGS.) 

FN8  FEBRUARY HOUSE HEARINGS, AT 469 (STATEMENT OF W.J. KENNEY,
ASSISTANT SECRETARY OF THE NAVY). 

FN9  HEARINGS ON H.R. 1366 AND H.R. 3394 BEFORE THE SENATE COMMITTEE
ON ARMED SERVICES, 80TH CONG., 1ST SESS. 8 (JUNE 24, 1947) (STATEMENT
OF SECRETARY KENNEY).  (HEREINAFTER CITED AS JUNE SENATE HEARINGS.) 
FN10  ID., AT 7. 

FN11  SEE, E.G., FEBRUARY HOUSE HEARINGS, AT 469. 

FN12  IBID. 

FN13  IBID.  SEE ALSO HEARINGS ON H.R. 1366 AND H.R. 1382 BEFORE
SUBCOMMITTEE NO. 6 OF THE HOUSE COMMITTEE ON ARMED SERVICES, 80TH
CONG., 1ST SESS., NO. 4, AT 27 (JANUARY 13, 1947) (STATEMENT OF ROBERT
P. PATTERSON, SECRETARY OF WAR).  (HEREINAFTER CITED AS JANUARY HOUSE
HEARINGS.) 

FN14  H.R. REP. NO. 109, 80TH CONG., 1ST SESS. 3. 

FN15  IBID.    FN16  ID., AT 6.  THE SENATE REPORT SAID SUBSTANTIALLY
THE SAME THING.  S. REP. NO. 571, 80TH CONG., 1ST SESS. 1-2.  SEE ALSO
93 CONG. REC. 2319. 

FN17  NOTHING TO THE CONTRARY CAN BE DERIVED FROM STATEMENTS
DESCRIBING THE BILL AS A RETURN TO A GENERAL RULE OF COMPETITIVE
BIDDING.  ANY LEGISLATION REACTIVATING PEACETIME PROCUREMENT METHODS
WOULD INEVITABLY BE A RETURN TO COMPETITIVE BIDDING AFTER A WARTIME
REGIME OF PROCUREMENT BY NEGOTIATION. 

FN18  62 STAT. 24, AS AMENDED, 10 U.S.C. SEC. 2304(F).  SEE S. REP.
NO. 571, 80TH CONG., 1ST SESS. 20. 

FN19  62 STAT. 21, AS AMENDED, 10 U.S.C. SEC. 2301. 

FN20  FEBRUARY HOUSE HEARINGS, AT 521 (STATEMENT OF COLONEL P.W.
SMITH); JUNE SENATE HEARINGS, AT 29 (STATEMENT OF SECRETARY KENNEY). 

FN21  HEARING ON H.R. 1366 BEFORE THE SENATE COMMITTEE ON ARMED
SERVICES, 80TH CONG., 1ST SESS. 15 (JULY 1, 1947).  (HEREINAFTER CITED
AS JULY SENATE HEARINGS.)  SECRETARY ROYALL REPEATED THE EXPLANATION IN
A COLLOQUY WITH SENATORS BYRD AND KILGORE.  ID., AT 23. 

FN22  S. REP. NO. 571, 80TH CONG., 1ST SESS. 8. 

FN23  THE DEPARTMENTS' REQUEST FOR AUTHORITY TO ATTACK BID PRICES
WHICH "WERE NOT INDEPENDENTLY REACHED IN OPEN COMPETITION," 10 U.S.C.
SEC. 2304(A)(15), DEALT WITH THE ALTOGETHER DIFFERENT PROBLEM OF
COLLUSIVE PRICING OF THE TYPE GENERALLY VIOLATIVE OF THE ANTITRUST
LAWS.  THE SENATE REPORT ON THE 1947 ACT EXPLAINS: 

"THIS PARAGRAPH WILL BE MOST USEFUL TO BREAK COLLUSIVE BIDDING,
FOLLOW-THE-LEADER PRICING, ROTATED LOW BIDS, IDENTICAL BIDS REQUIRING
DRAWING OF LOTS, UNIFORM ESTIMATING SYSTEMS, REFUSAL TO CLASSIFY THE
GOVERNMENT AS OTHER THAN A RETAIL BUYER REGARDLESS OF THE QUANTITY
PURCHASED, AND SIMILAR PRACTICES.  IN SUCH SITUATIONS THE GOVERNMENT
SHOULD HAVE THE POWER TO INQUIRE INTO THE REASONS WHY IT IS NOT
SECURING THE BENEFITS OF COMPETITION.  IT SHOULD BE ABLE TO CALL FOR
FACTS AND FIGURES AND TO NEGOTIATE TO ELIMINATE UNWARRANTED CHARGES,
EXCESSIVE RESERVES FOR CONTINGENCIES, COMMISSIONS OR BROKERAGE CHARGES,
AND UNWARRANTED PROFITS. 

     *         *         *       *         * 

"ON THIS SAME SUBJECT ANOTHER NEW SUBSECTION HAS BEEN ADDED.  IT WILL
REQUIRE REFERENCE OF BIDS SUSPECTED OF NOT BEING ARRIVED AT BY OPEN
COMPETITION TO THE ATTORNEY GENERAL FOR APPROPRIATE ACTION UNDER THE
ANTITRUST LAWS."  S. REP. NO. 571, 80TH CONG., 1ST SESS. 4-5.  SEE ALSO
JANUARY HOUSE HEARINGS, AT 26; JUNE SENATE HEARINGS, AT 9. 

FN24  SEE TESTIMONY CITED IN NOTES 20 AND 21, SUPRA. 

FN25  THE RELEVANT PROVISION OF THE 1947 ACT PROVIDED:  "ALL
PURCHASES AND CONTRACTS FOR SUPPLIES AND SERVICES SHALL BE MADE BY
ADVERTISING  ... EXCEPT THAT SUCH PURCHASES AND CONTRACTS MAY BE
NEGOTIATED BY THE AGENCY HEAD WITHOUT ADVERTISING IF: 

     *         *        *         *         * 

"(10)  FOR SUPPLIES OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO
SECURE COMPETITION  ...  ."  SEC.  2(C), 62 STAT. 21. 

FN26  THE ONLY APPROXIMATION OF A DEFINITION BY THE DEPARTMENTS
PROPOSING THE BILL WAS THE STATEMENT THAT:  "NEGOTIATION INCLUDES ANY
MANNER OF EFFECTING PROCUREMENT OTHER THAN ADVERTISING."  FEBRUARY
HOUSE HEARINGS, AT 427. 

FN27  PUBLIC LAW 87-653, 76 STAT. 528.  THE SENATE REPORT EXPLAINS
THAT THE AMENDMENT FILLS THE VOID CREATED BY THE FACT THAT "EXISTING
PROCUREMENT LAW DOES NOT DEFINE THE WORD 'NEGOTIATION' EXCEPT TO
INDICATE THAT IT MEANS 'MAKE WITHOUT FORMAL ADVERTISING.'"  S. REP. NO.
1884, 87TH CONG., 2D SESS. 2.  SEE ALSO H.R. REP. NO. 1638, 87TH CONG.,
2D SESS. 4-5. 

FN28  CONG. REC., JUNE 7, 1962, P. 9234.  IN EXPLAINING THE AMENDMENT
TO THE HOUSE SUBCOMMITTEE, COMMITTEE COUNSEL SIMILARLY DESCRIBED THE
EXCEPTION FOR PRICE REGULATED TRANSACTIONS AS ONE WHERE "NEGOTIATION
WOULD BE FUTILE OR MEANINGLESS."  HEARINGS ON H.R. 5532 BEFORE
SUBCOMMITTEE NO. 3 OF THE HOUSE COMMITTEE ON ARMED SERVICES, 87TH
CONG., 2D SESS., NO. 51, AT 5071 (APRIL 10, 1962). 

FN29  FURTHER ILLUMINATION OF THIS POLICY IS FURNISHED BY SUBSECTION
(E) OF THE 1962 ACT, 76 STAT. 528, AMENDING 10 U.S.C. SEC. 2306.  AFTER
PROVIDING THAT IN CERTAIN CIRCUMSTANCES CONTRACTORS MUST CERTIFY THE
CORRECTNESS OF THEIR COST OR PRICING DATA, SUBSECTION (E) THEN MAKES AN
EXCEPTION FOR SITUATIONS IN WHICH THERE WILL BE LITTLE QUESTION AS TO
ULTIMATE PRICE: 

"PROVIDED, THAT THE REQUIREMENTS OF THIS SUBSECTION NEED NOT BE
APPLIED TO CONTRACTS OR SUBCONTRACTS WHERE THE PRICE NEGOTIATED IS
BASED ON ADEQUATE PRICE COMPETITION, ESTABLISHED CATALOG OR MARKET
PRICES OF COMMERCIAL ITEMS SOLD IN SUBSTANTIAL QUANTITIES TO THE
GENERAL PUBLIC, PRICES SET BY LAW OR REGULATION OR, IN EXCEPTIONAL
CASES WHERE THE HEAD OF THE AGENCY DETERMINES THAT THE REQUIREMENTS OF
THIS SUBSECTION MAY BE WAIVED AND STATES IN WRITING HIS REASONS FOR
SUCH DETERMINATION." 
..END :





















UNITED STATES V. GEORGIA PUBLIC SERVICE COMMISSION 371 U.S. 285 


NO. 81.  ARGUED OCTOBER 18, 1962.  - DECIDED JANUARY 14, 1963.  - 197 F.
SUPP. 793, REVERSED. 


THE UNITED STATES SUED IN A FEDERAL DISTRICT COURT TO ENJOIN THE
GEORGIA PUBLIC SERVICE COMMISSION FROM PROHIBITING COMMON CARRIERS FROM
CONTRACTING WITH AGENCIES OF THE FEDERAL GOVERNMENT FOR THE MASS
TRANSPORTATION WITHIN THAT STATE OF THE HOUSEHOLD GOODS OF CIVILIAN
EMPLOYEES OF THE FEDERAL GOVERNMENT, AT RATES OTHER THAN THOSE
PRESCRIBED BY THE GEORGIA COMMISSION.  A THREE-JUDGE DISTRICT COURT
CONVENED TO HEAR THE CASE DENIED AN INJUNCTION, AND THE UNITED STATES
APPEALED DIRECTLY TO THIS COURT.  HELD: 

1.  THIS CASE IS ONE "REQUIRED" TO BE HEARD BY A THREE-JUDGE DISTRICT
COURT, AND A DIRECT APPEAL TO THIS COURT WAS PROPERLY TAKEN UNDER 28
U.S.C. SEC. 1253.  PP. 287-288. 

2.  FEDERAL PROCUREMENT STATUTES PROVIDE FOR THE NEGOTIATION OF
SPECIAL RATES FOR TRANSPORTING HOUSEHOLD GOODS OF FEDERAL EMPLOYEES AT
GOVERNMENT EXPENSE; AND THE STATE COULD NOT DEFEAT THE PURPOSE OF THIS
LEGISLATION BY PROHIBITING THE COMMON CARRIERS FROM TRANSPORTING SUCH
GOODS INTRASTATE AT RATES OTHER THAN THOSE PRESCRIBED BY THE GEORGIA
PUBLIC SERVICE COMMISSION.  PUBLIC UTILITIES COMMISSION OF CALIFORNIA
V. UNITED STATES, 355 U.S. 534.  PP. 288-293. 

UNITED STATES V. GEORGIA PUBLIC SERVICE COMMISSION. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT WERE REASSIGNED FROM
SAVANNAH TO ATLANTA, GEORGIA, AND THE GENERAL SERVICES ADMINISTRATION
SOUGHT TO ARRANGE BY COMPETITIVE BIDDING FOR THE INTRASTATE MASS
SHIPMENT OF THEIR HOUSEHOLD GOODS BETWEEN THOSE CITIES.  GEORGIA LAW,
HOWEVER, DOES NOT PERMIT A RATE FOR TRANSPORTING HOUSEHOLD GOODS OF
MORE THAN ONE FAMILY; IT REQUIRES CARRIERS TO QUOTE SCHEDULES OF
APPROVED RATES, THE TOTAL CHARGE TO BE THE SUM OF THE CHARGES FIGURED
FOR INDIVIDUAL FAMILIES.  (FN1)  FIVE CARRIERS SUBMITTED BIDS QUOTING
RATES LOWER THAN THOSE ALLOWED BY THE GEORGIA TARIFF.  AFTER THE
COMPETITIVE BIDDING WAS OVER AND THE CONTRACT AWARDED TO THE LOWEST
RESPONSIBLE BIDDER, THE GEORGIA PUBLIC SERVICE COMMISSION THREATENED
THESE FIVE CARRIERS WITH REVOCATION OF THEIR INTRASTATE OPERATING
CERTIFICATES SHOULD THEY PERFORM AT THE RATES QUOTED GSA.  THE
SUCCESSFUL BIDDER THEREUPON NOTIFIED GSA THAT IT WAS UNABLE TO PERFORM
THE CONTRACT.  APPELLEE INSTITUTED PROCEEDINGS AGAINST THE CARRIER,
LOOKING TOWARD THE REVOCATION OF ITS CERTIFICATE.  THE UNITED STATES
SOUGHT TO INTERVENE IN THAT PROCEEDING BUT IT WAS NOT ALLOWED TO DO SO.
APPELLEE ALSO REFUSED TO ALLOW A GSA OFFICIAL TO TESTIFY AS TO THE
CIRCUMSTANCES OF THE SHIPPING CONTRACT THAT THE COMMISSION CLAIMED
CONFLICTED WITH GEORGIA LAW. 

THEREUPON THE UNITED STATES FILED SUIT IN THE DISTRICT COURT AND
REQUESTED THE CONVOCATION OF A THREE-JUDGE COURT.  THE COMPLAINT
ALLEGED, INTER ALIA, THAT GEORGIA LAW BURDENED FEDERAL OFFICERS IN
CARRYING OUT THEIR FEDERAL FUNCTIONS AND CONFLICTED WITH FEDERAL
PROCUREMENT POLICY.  THE ISSUE AS FINALLY JOINED RAISES SQUARELY THOSE
QUESTIONS.  THE DISTRICT COURT HELD THAT THERE WAS NO CONFLICT BETWEEN
GEORGIA'S REGULATORY SCHEME AND THE FEDERAL ONE, CONCLUDING THAT THE
CASE IS GOVERNED BY PENN DAIRIES, INC., V. MILK CONTROL COMM'N, 318
U.S. 261.  SEE 197 F. SUPP. 793.  THE CASE IS HERE ON DIRECT APPEAL (28
U.S.C. SECS. 1253, 2101(B)); WE POSTPONED CONSIDERATION OF THE QUESTION
OF JURISDICTION UNTIL A HEARING ON THE MERTIS.  369 U.S. 882. 

WE HAVE JURISDICTION OF THIS APPEAL IF THE CASE WAS "REQUIRED  ...
TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES."  28
U.S.C. SEC. 1253.  THE QUESTION WHETHER THE GEORGIA REGULATORY SCHEME
IS UNCONSTITUTIONAL BECAUSE IT BURDENED THE EXERCISE BY THE UNITED
STATES OF ITS POWER TO MAINTAIN A CIVILIAN SERVICE AND TO CARRY OUT
OTHER CONSTITUTIONAL FUNCTIONS IS A SUBSTANTIAL ONE, AS OUR DECISIONS
IN PENN DAIRIES, INC., V. MILK CONTROL COMM'N, SUPRA; PUBLIC UTILITIES
COMM'N OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, AND PAUL V. UNITED
STATES, ANTE, P. 245, DECIDED THIS DAY, SHOW, AND THEREFORE REQUIRED A
THREE-JUDGE COURT TO ADJUDICATE IT.  28 U.S.C. SEC. 2281; IDLEWILD BON
VOYAGE LIQUOR CORP. V. EPSTEIN, 370 U.S. 713; FLORIDA LIME GROWERS V.
JACOBSEN, 362 U.S. 73.  WE HAVE PRESENTED HERE MORE THAN AN ISOLATED
ISSUE WHETHER A STATE LAW CONFLICTS WITH A FEDERAL STATUTE AND
THEREFORE MUST GIVE WAY BY REASON OF THE SUPREMACY CLAUSE.. CF. KESLER
V. DEPARTMENT OF PUBLIC SAFETY, 369 U.S. 153.  DIRECT CONFLICT BETWEEN
A STATE LAW AND FEDERAL CONSTITUTIONAL PROVISIONS RAISES OF COURSE A
QUESTION UNDER THE SUPREMACY CALUSE BUT ONE OF A BROADER SCOPE THAN
WHERE THE ALLEGED CONFLICT IS ONLY BETWEEN A STATE STATUTE AND A
FEDERAL STATUTE THAT MIGHT BE RESOLVED BY THE CONSTRUCTION GIVEN EITHER
THE STATE OR THE FEDERAL LAW.  ID., 157.  SO WE HAVE A CLEAR CASE FOR
CONVENING A THREE-JUDGE COURT.  ONCE CONVENED THE CASE CAN BE DISPOSED
OF BELOW OR HERE ON ANY GROUND, WHETHER OR NOT IT WOULD HAVE JUSTIFIED
THE CALLING OF A THREE-JUDGE COURT.  SEE STERLING V. CONSTANTIN, 287
U.S. 378, 393-394; RAILROAD COMM'N V. PACIFIC GAS CO., 302 U.S. 388,
391. 

THE DISTRICT COURT, ACTING ON MOTIONS FOR SUMMARY JUDGMENT FILED BY
EACH OF THE PARTIES, SAID THAT WERE THE PROPERTY BEING TRANSPORTED
"STRICTLY GOVERNMENTAL PROPERTY," THE CASE WOULD BE GOVERNED BY PUBLIC
UTILITIES COMM'N OF CALIFORNIA V. UNITED STATES, 355 U.S. 534.  BUT
SINCE THE PROPERTY INVOLVED HERE IS HOUSEHOLD GOODS, NOT MILITARY
SUPPLIES, THE COURT CONCLUDED THAT THE CASE IS CONTROLLED BY PENN
DAIRIES, INC., V. MILK CONTROL COMM'N, SUPRA. 

THE DISTINCTION DRAWN BY THE DISTRICT COURT BETWEEN THIS CASE AND
PUBLIC UTILITIES COMM'N OF CALIFORNIA V. UNITED STATES, SUPRA, IS NOT
TENABLE.  BETWEEN 1943, WHEN PENN DAIRIES WAS DECIDED, AND 1958, WHEN
PUBLIC UTILITIES COMM'N OF CALIFORNIA WAS DECIDED, CONGRESS ENACTED THE
ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, LATER CODIFIED
WITHOUT SUBSTANTIAL CHANGE, 70A STAT. 127, 10 U.S.C. SEC. 2301 ET SEQ.,
WHICH EXTENDED AND ELABORATED THE FEDERAL PROCUREMENT POLICY OF
NEGOTIATED RATES WHICH, AS WE NOTED IN THE PUBLIC UTILITIES COMM'N OF
CALIFORNIA CASE, CONFLICTED WITH CALIFORNIA'S POLICY OF REGULATED
RATES.  355 U.S., AT 544.  THE FEDERAL REGULATION INVOLVED IN THAT CASE
WAS SUPERSEDED IN 1958 BY THE MILITARY TRAFFIC MANAGEMENT REGULATION. 
(FN2)  THAT REGULATION INCLUDES THE "PROCEDURES TO GOVERN THE MOVEMENT
OF UNCRATED HOUSEHOLD GOODS."  (FN3) ANOTHER REGULATION PROVIDES THAT
THEIR TRANSPORTATION IS AUTHORIZED "BY THE MODE OF TRANSPORTATION ...
WHICH RESULTS IN THE LOWEST OVER-ALL COST TO THE GOVERNMENT AND WHICH
PROVIDES THE REQUIRED SERVICE SATISFACTORILY."  (FN4)  THIS ENTAILS
"NEGOTIATION" WITH CARRIERS FOR "RATES" (FN5) ON MILITARY TRAFFIC AND
"SPECIAL ARRANGEMENTS PERTAINING TO OTHER FREIGHT TRAFFIC."  (FN6)
EXAMPLES COULD BE MULTIPLIED BUT ENOUGH HAS BEEN SAID TO SHOW THAT THE
NEW MILITARY TRAFFIC MANAGEMENT REGULATION CONTINUES IN EFFECT THE
PROVISIONS OF THE EARLIER REGULATION IN FORCE WHEN THE PUBLIC UTILITIES
COMM'N OF CALIFORNIA CASE WAS DECIDED. 

THE SAME POLICY OF NEGOTIATING RATES FOR SHIPMENT OF FEDERAL PROPERTY
NOW GOVERNS NONDEFENSE AGENCIES.  THE BASIC STATUTE IS THE FEDERAL
PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 383, 40
U.S.C. SEC. 481, 63 STAT. 393, AS AMENDED, 41 U.S.C. SEC. 251 ET SEQ.
ITS PROCUREMENT PROVISIONS ARE SUBSTANTIALLY SIMILAR TO THOSE CONTAINED
IN THE ARMED SERVICES PROCUREMENT ACT OF 1947.  IT WAS, INDEED, ENACTED
TO EXTEND TO GSA "THE PRINCIPLES OF THE ARMED SERVICES PROCUREMENT ACT
OF 1947, WITH APPROPRIATE MODIFICATIONS PRINCIPALLY DESIGNED TO
ELIMINATE PROVISIONS APPLICABLE PRIMARILY TO THE MILITARY."  H.R. REP.
NO. 670, 81ST CONG., 1ST SESS., P. 6.  UNDER THE REGULATIONS
PROMULGATED PURSUANT TO THIS ACT, PROCUREMENT OF TRANSPORTATION AND
IMPROVEMENT OF TRANSPORTATION AND TRAFFIC PRACTICES OF EXECUTIVE
AGENCIES ARE ENTRUSTED TO THE COMMISSIONER OF THE TRANSPORTATION AND
PUBLIC UTILITIES SERVICE (TPUS).  (FN7)  HE IS TO REPRESENT THE
EXECUTIVE AGENCIES "IN NEGOTIATIONS OF RATES AND CONTRACTS FOR
TRANSPORTATION."  (FN8)  THE COMMISSIONER IN PROCUREMENT AND
CONTRACTING  (FN9)  : 

"(A) NEGOTIATES PURCHASES AND CONTRACTS FOR PROPERTY AND SERVICES
WITHOUT ADVERTISING, AND MAKES ANY DETERMINATIONS AND DECISIONS
REQUIRED IN CONNECTION THEREWITH  ...  . 

"(B) MAKES PURCHASES AND CONTRACTS FOR PROPERTY AND SERVICES BY
ADVERTISING, AND DETERMINES THAT THE REJECTION OF ALL BIDS IS IN THE
PUBLIC INTEREST. 

"(C) DETERMINES THE TYPE OF NEGOTIATED CONTRACT WHICH WILL PROMOTE
THE BEST INTERESTS OF THE GOVERNMENT  ...  ." 

THE REGULATION GOVERNING THE COMMISSIONER'S FUNCTIONS ENJOINS HIM: 

"TO EVALUATE MASS MOVEMENTS OF HOUSEHOLD GOODS AND PERSONAL EFFECTS
AND, WHEN FEASIBLE, TO NEGOTIATE WITH CARRIERS TO EFFECT THE MOST
ECONOMICAL BASIS FOR THE MOVEMENT OF SUCH HOUSEHOLD GOODS AND PERSONAL
EFFECTS."  (FN10) 

"EXCEPT WHEN THE EXIGENCY OF THE MOVEMENT PRECLUDES SUCH ACTION, ALL
REQUESTS FOR RATES FOR MASS MOVEMENTS  ...  SHALL BE MADE BY FORMAL
ADVERTISING (FOR BIDS)  ...  ."  (FN11) 

THAT REGULATION IS PLAINLY WITHIN THE PURVIEW OF THE ACT, WHICH
PROVIDES IN SEC. 302, AS AMENDED, 41 U.S.C. SEC. 252, AS FOLLOWS:

"ALL PURCHASES AND CONTRACTS FOR PROPERTY AND SERVICES SHALL BE
MADE BY ADVERTISING, AS PROVIDED IN SECTION 253 OF THIS TITLE, EXCEPT
THAT SUCH PURCHASES AND CONTRACTS MAY BE NEGOTIATED BY THE AGENCY HEAD
WITHOUT ADVERTISING IF: 

     *     *         *         *         * 

"(2) THE PUBLIC EXIGENCY WILL NOT ADMIT OF THE DELAY INCIDENT TO
ADVERTISING: 

*         *         *         *         * 

"(10) FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO
SECURE COMPETITION: 

     *         *         *         *         * 

"(14) FOR PROPERTY OR SERVICES AS TO WHICH THE AGENCY HEAD DETERMINES
THAT BID PRICES AFTER ADVERTISING THEREFOR ARE NOT REASONABLE  ...  OR
HAVE NOT BEEN INDEPENDENTLY ARRIVED AT IN OPEN COMPETITION: PROVIDED,
THAT  ...  (B) THE NEGOTIATED PRICE IS THE LOWEST NEGOTIATED PRICE
OFFERED BY ANY RESPONSIBLE SUPPLIER  ...  ." 

RESPONSIBLE BIDDER WHOSE BID  ...  WILL BE MOST ADVANTAGEOUS TO THE
GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED."  MOREOVER, 40 U.S.C.
SEC. 481(A)(4) DIRECTS GSA TO REPRESENT EXECUTIVE AGENCIES "IN
NEGOTIATIONS WITH CARRIERS" WITH RESPECT TO TRANSPORTATION "FOR THE USE
OF EXECUTIVE AGENCIES."  TRANSFER OF HOUSEHOLD GOODS OF FEDERAL
EMPLOYEES, WHETHER MILITARY (FN12) OR CIVILIAN, HAS BEEN MADE BY
CONGRESS A CHARGE AGAINST FEDERAL FUNDS WHEN EMPLOYEES ARE TRANSFERRED
FROM ONE OFFICIAL STATION TO ANOTHER.  (FN13) 

IT IS SAID THAT THE 1949 ACT GIVES THE ADMINISTRATOR POWER TO DEAL
ONLY WITH WHOEVER HAS AUTHORITY TO MAKE RATE DECISIONS, WHETHER IT BE
THE CARRIER ON INTERSTATE SHIPMENTS OR THE STATE REGULATORY AGENCY ON
INTRASTATE SHIPMENTS.  40 U.S.C. SEC. 481 DOES INDEED PROVIDE: 

"THE ADMINISTRATOR SHALL, IN RESPECT OF EXECUTIVE AGENCIES, AND TO
THE EXTENT THAT HE DETERMINES THAT SO DOING IS ADVANTAGEOUS TO THE
GOVERNMENT IN TERMS OF ECONOMY, EFFICIENCY, OR SERVICE, AND WITH DUE
REGARD TO THE PROGRAM ACTIVITIES OF THE AGENCIES CONCERNED: 

     *         *         *         *         * 

"(4) WITH RESPECT TO TRANSPORTATION AND OTHER PUBLIC UTILITY SERVICES
FOR THE USE OF EXECUTIVE AGENCIES, REPRESENT SUCH AGENCIES IN
NEGOTIATIONS WITH CARRIERS AND OTHER PUBLIC UTILITIES AND IN
PROCEEDINGS INVOLVING CARRIERS OR OTHER PUBLIC UTILITIES BEFORE FEDERAL
AND STATE REGULATORY BODIES ...  ." 

BUT THAT PROVISION DOES NOT SAY THAT STATE-FIXED RATES GOVERN THE
FEDERAL PROCUREMENT OFFICIAL UNLESS HE CAN GET THEM CHANGED.  IT IS
COMPARABLE TO SEC. 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
22, WHICH ALLOWS THE UNITED STATES TO OBTAIN PREFERRED RATES.  "THE
OBJECT OF THE SECTION WAS TO SETTLE, BEYOND DOUBT, THAT THE
PREFERENTIAL TREATMENT OF CERTAIN CLASSES OF SHIPPERS AND TRAVELERS
...  IS NOT NECESSARILY PROHIBITED."  NASHVILLE R. CO. V. TENNESSEE,
262 U.S. 318, 323.  AND SEE SOUTHERN R. CO. V. UNITED STATES, 322 U.S.
72; UNITED STATES V. INTERSTATE COMMERCE COMM'N, 352 U.S. 158, 174. 

BY SEC. 481(A) THE ADMINISTRATOR IS AUTHORIZED TO SEEK BEFORE STATE
AGENCIES PREFERENTIAL TREATMENT FOR FEDERAL SHIPMENTS.  BUT THERE IS
NOT A WORD SUGGESTING THAT, FAILING IN THAT REGARD, HE IS BOUND TO
ACCEPT THE STATE-FIXED RATE.  THE ACT AND THE REGULATION SPEAK TOO
CLEARLY IN TERMS OF THE "LOWEST OVER-ALL COST" TO THE GOVERNMENT,
EITHER THROUGH COMPETITIVE BIDDING OR NEGOTIATION WITH CARRIERS, FOR US
TO CONCLUDE THAT THE ONLY RELIEF AGAINST STATE FIXED RATES IS AN
ADMINISTRATIVE REMEDY BEFORE THE STATE AGENCY EITHER THROUGH
NEGOTIATION OR LITIGATION.  CONGRESS HAS NOT TIED THE HANDS OF THE
FEDERAL PROCUREMENT OFFICIALS SO TIGHTLY. 

WE HAVE THEN A FEDERAL PROCUREMENT POLICY OF NEGOTIATED RATES FOR
TRANSPORTING HOUSEHOLD GOODS OF FEDERAL EMPLOYEES - A POLICY AS CLEAR
AND AS EXPLICIT AS THE FEDERAL POLICY FOR TRANSPORTING MILITARY
SUPPLIES INVOLVED IN PUBLIC UTILITIES COMM'N OF CALIFORNIA V. UNITED
STATES, SUPRA.  THE GEORGIA POLICY, WHICH IS OPPOSED TO THIS FEDERAL
POLICY, MUST ACCORDINGLY GIVE WAY.  FOR AS WE NOTED IN PUBLIC UTILITIES
COMM'N OF CALIFORNIA V. UNITED STATES, SUPRA, AT 544, A STATE IS
WITHOUT POWER BY REASON OF THE SUPREMEACY CLAUSE TO PROVIDE THE
CONDITIONS ON WHICH THE FEDERAL GOVERNMENT WILL EFFECTUATE ITS
POLICIES.  WHETHER THE FEDERAL POLICY IS A WISE ONE IS FOR THE CONGRESS
AND THE CHIEF EXECUTIVE TO DETERMINE.  SEE PERKINS V. LUKENS STEEL CO.,
310 U.S. 113, 127 ET SEQ. ONCE THEY HAVE SPOKEN IT IS OUR FUNCTION TO
ENFORCE THEIR WILL.  REVERSED. 

FN1  SEE GA. HOUSEHOLD GOODS TARIFF NO. 1-B, GPSC-MF NO. 3, RULES 8
AND 15.  THE LATTER PROVIDES IN PART THAT "PROPERTY OF TWO OR MORE
FAMILIES OR ESTABLISHMENTS WILL NOT BE ACCEPTED FOR TRANSPORTATION AS A
SINGLE SHIPMENT." 

FN2  PROMULGATED MARCH, 1958, AS AMENDED TO OCTOBER 10, 1960. 

FN3  ID., C. 101, PARA. 101001. 

FN4  JOINT TRAVEL REGULATIONS, C. 8, APRIL 1, 1959, AS AMENDED TO
OCTOBER 1, 1961, PARA. 8001. 

FN5  MILITARY TRAFFIC MANAGEMENT REGULATION, AMENDED TO NOVEMBER 5,
1959, C. 201, PARA. 201001(B). 

FN6  ID., PARA. 201001(K).    FN7  GENERAL SERVICES ADM. ORDER, ADM
5450.3, CHANGE 4, PARA. 141A; TPS 7460.1, ATTACHMENT, PARA. 3, MARCH
15, 1960. 

FN8  ADM, SUPRA, PARA. 141B; TPS 7460.1, PARA. 4. 

FN9  ID., PARA. 142A. 

FN10  TPS 7460.1, PARA. 3. 

FN11  ID., ATTACHMENT, PARA. 7B(1). 

FN12  63 STAT. 813, AS AMENDED, 37 U.S.C. SEC. 253(C). 

FN13  60 STAT. 806, AS AMENDED, 5 U.S.C. SEC. 73B-1.    MR. JUSTICE
STEWART, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE GOLDBERG JOIN,
DISSENTING. 

THE GOVERNING LAW IN THIS CASE IS TITLE III OF THE FEDERAL PROPERTY
AND ADMINISTRATIVE SERVICES ACT OF 1949, (FN1) BUT THAT ACT SIMPLY
"EXTENDS TO THE GENERAL SERVICES AGENCY THE PRINCIPLES OF THE ARMED
SERVICES PROCUREMENT ACT OF 1947."  (FN2)  IN PAUL V. UNITED STATES,
ANTE, P. 270, I HAVE STATED WHY I THINK THOSE PRINCIPLES CLEARLY
CONTEMPLATE THAT GOVERNMENT PROCUREMENT IS TO BE CONDUCTED WITHIN THE
FRAMEWORK OF VALID STATE REGULATORY LEGISLATION.  FOR THE REASONS THERE
STATED, I ALSO DISSENT FROM THE COURT'S JUDGMENT IN THIS CASE. 

ONLY ONE ADDITIONAL CONSIDERATION NEEDS MENTION HERE.  THE COURT
PURPORTS TO FIND SOME ADDITIONAL SUPPORT FOR THE RESULT IN THIS CASE IN
ONE PROVISION OF THE 1949 ACT WHICH HAS NO COUNTERPART IN THE 1947
ACT.  SECTION 201(A) OF THE 1949 ACT (FN3) PROVIDES, IN PERTINENT
PART, 

"(A) THE ADMINISTRATOR SHALL  ... 

     *         *         *         *       * 

"(4) WITH RESPECT TO TRANSPORTATION AND OTHER PUBLIC UTILITY SERVICES
FOR THE USE OF EXECUTIVE AGENCIES, REPRESENT SUCH AGENCIES IN
NEGOTIATIONS WITH CARRIERS AND OTHER PUBLIC UTILITIES AND IN
PROCEEDINGS INVOLVING CARRIERS OR OTHER PUBLIC UTILITIES BEFORE FEDERAL
AND STATE REGULATORY BODIES ...  ." 

THE COURT SEIZES UPON THE WORDS "IN NEGOTIATIONS WITH CARRIERS" AS
EVIDENCE THAT CONGRESS AUTHORIZED THE ADMINISTRATOR TO BY-PASS STATE
SCHEDULES WHEN PLACING CONTRACTS FOR INTRASTATE TRANSPORTATION. 

FAR FROM SUPPORTING THE COURT'S POSITION, I THINK SEC. 201(A) IS
SIMPLY ANOTHER EXAMPLE OF CONGRESS' BASIC ASSUMPTION THAT STATE PRICE
REGULATION WILL REMAIN APPLICABLE TO FEDERAL PROCUREMENT TRANSACTIONS. 
THE SECTION REFERS BOTH TO NEGOTIATIONS WITH INDIVIDUAL CARRIERS AND TO
PROCEEDINGS BEFORE REGULATORY AGENCIES.  IT SEEMS TO ME THAT THE
AUTHORIZATION OF THESE ALTERNATIVE PROCEDURES MUST BE READ AGAINST THE
BACKGROUND OF SEC. 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
22, WHICH PROVIDES THAT I.C.C. RATE SCHEDULES GOVERNING INTERSTATE
SHIPMENTS ARE NOT TO APPLY TO TRANSPORTATION FOR THE FEDERAL
GOVERNMENT.  IN LIGHT OF THIS EXPRESS STATUTORY EXEMPTION FOR
INTERSTATE SHIPMENTS, IT APPEARS QUITE CLEAR THAT SEC. 201(A) SAYS
NOTHING MORE THAN THAT THE ADMINISTRATOR HAS POWER TO DEAL WITH WHOEVER
HAS AUTHORITY TO MAKE RATE DECISIONS - WITH THE CARRIER FOR INTERSTATE
SHIPMENTS, AND WITH STATE REGULATORY AGENCIES FOR INTRASTATE SHIPMENTS
WHEN REGULATED BY STATE LAW.  (FN4) 

FN1  63 STAT. 393, AS AMENDED, 41 U.S.C. SECS. 251-260. 

FN2  H.R. REP. NO. 670, 81ST CONG., 1ST SESS. 6. 

FN3  63 STAT. 383, AS AMENDED, 40 U.S.C. SEC. 481(A). 

FN4  THE SAME CONCLUSION MUST BE DRAWN FROM THE SEVERAL REGULATIONS
CITED BY THE COURT.  WHEN READ IN FULL, BOTH THE MILITARY AND CIVILIAN
TRANSPORTATION REGULATIONS SEEM TO ANTICIPATE THAT PROCUREMENT OFFICERS
WILL DEAL SOMETIMES DIRECTLY WITH INDIVIDUAL CARRIERS, AND SOMETIMES
WITH A REGULATORY BODY.  THE EXECUTIVE DIRECTOR, MILITARY TRAFFIC
MANAGEMENT AGENCY, IS MADE RESPONSIBLE FOR: 

"NEGOTIATION WITH ALL FOR-HIRE CARRIERS OF CARGO OR THEIR RATE-MAKING
AGENCIES FOR CLASSIFICATIONS, RATES, CHARGES, RULES AND REGULATIONS ON
MILITARY TRAFFIC  ...  ."  CHAPTER 201, MILITARY TRAFFIC MANAGEMENT
REGULATION, MARCH 1958, AS AMENDED TO NOVEMBER 5, 1959. 

SIMILARLY, REGULATIONS GOVERNING NONMILITARY TRANSPORTATION MAKE THE
TRANSPORTATION AND PUBLIC UTILITIES SERVICE RESPONSIBLE FOR: 

"THE PROVISION OF ADVICE AND EXPERT TESTIMONY ON BEHALF OF EXECUTIVE
AGENCIES IN PROCEEDINGS BEFORE FEDERAL AND STATE REGULATORY BODIES
INVOLVING TRANSPORTATION, PUBLIC UTILITIES AND COMMUNICATIONS  ...  ." 
GENERAL SERVICES ADM. ORDER, ADM 5450.3, CHANGE 4, JULY 31, 1959, SEC.
1, PARA. 141(B). 
..END :



PAN AMERICAN WORLD AIRWAYS, INC. V. UNITED STATES 371 U.S. 296 


NO. 23.  ARGUED NOVEMBER 8, 1962.  - DECIDED JANUARY 14, 1963.* - 193 F.
SUPP. 18, REVERSED AND CAUSE REMANDED. 

*TOGETHER WITH NO. 47, UNITED STATES V. PAN AMERICAN WORLD AIRWAYS,
INC., ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


CHARGING VIOLATIONS OF SECS. 1, 2, AND 3 OF THE SHERMAN ACT, THE
UNITED STATES BROUGHT THIS CIVIL SUIT AGAINST PAN AMERICAN WORLD
AIRWAYS, W.R. GRACE & CO. AND THEIR JOINTLY OWNED SUBSIDIARY, PAN
AMERICAN-GRACE AIRWAYS (PANAGRA).  THE COMPLAINT ALLEGED THAT, WHEN PAN
AMERICAN AND GRACE ORGANIZED PANAGRA IN 1928, THEY AGREED THAT PAN
AMERICAN AND PANAGRA WOULD NOT PARALLEL EACH OTHER'S AIR ROUTES, THAT
THIS WAS A COMBINATION AND CONSPIRACY IN RESTRAINT OF TRADE AND
MONOPOLIZATION AND ATTEMPTED MONOPOLIZATION OF AIR TRANSPORTATION
BETWEEN THE UNITED STATES AND SOUTH AMERICA AND ALSO THAT PAN AMERICAN
HAD USED ITS CONTROL OVER PANAGRA TO PREVENT IT FROM OBTAINING
AUTHORITY FROM THE CIVIL AERONAUTICS BOARD TO EXTEND ITS ROUTE FROM THE
CANAL ZONE TO THE UNITED STATES.  THE DISTRICT COURT FOUND THAT PAN
AMERICAN HAD VIOLATED SEC. 2 OF THE SHERMAN ACT BY SUPPRESSING
PANAGRA'S EFFORTS TO EXTEND ITS ROUTE FROM THE CANAL ZONE TO THIS
COUNTRY, AND IT ORDERED PAN AMERICAN TO DIVEST ITSELF OF ITS STOCK IN
PANAGRA; BUT IT DISMISSED THE COMPLAINT AGAINST GRACE AND PANAGRA,
HOLDING THAT NONE OF THEIR PRACTICES VIOLATED THE SHERMAN ACT.  HELD:
THE NARROW QUESTIONS PRESENTED BY THIS COMPLAINT HAD BEEN ENTRUSTED BY
CONGRESS TO THE CIVIL AERONAUTICS BOARD, AND THE ENTIRE COMPLAINT
SHOULD HAVE BEEN DISMISSED.  PP. 298-313. 

(A)  SINCE ENACTMENT OF THE CIVIL AERONAUTICS ACT IN 1938, THE
AIRLINE INDUSTRY HAS BEEN REGULATED UNDER A REGIME DESIGNED TO CHANGE
THE PRIOR COMPETITIVE SYSTEM, AND THE FEDERAL AVIATION ACT OF 1958 MADE
NO CHANGES RELEVANT TO THE PROBLEM PRESENTED BY THIS CASE.  PP. 300
301. 

(B)  UNDER SEC. 411 OF THE FEDERAL AVIATION ACT OF 1958, THE CIVIL
AERONAUTICS BOARD HAS JURISDICTION OVER "UNFAIR PRACTICES" AND "UNFAIR
METHODS OF COMPETITION," EVEN THOUGH THEY ORIGINATED PRIOR TO 1938. 
PP. 302-303. 

(C)  IN REGULATING AIR CARRIERS, THE BOARD IS TO DEAL WITH AT LEAST
SOME ANTITRUST PROBLEMS.  IN ADDITION TO ITS POWER UNDER SEC. 411, IT
IS GIVEN AUTHORITY BY SECS. 408, 409, AND 412 OVER CONSOLIDATIONS,
MERGERS, PURCHASES, LEASES, OPERATING CONTRACTS, ACQUISITION OF CONTROL
OF AN AIR CARRIER, INTERLOCKING RELATIONS, POOLING ARRANGEMENTS, ETC.;
AND THE CLAYTON ACT IS ENFORCED BY THE BOARD, INSOFAR AS IT IS
APPLICABLE TO AIR CARRIERS.  P. 304. 

(D)  THE LEGISLATIVE HISTORY INDICATES THAT THE CIVIL AERONAUTICS
BOARD WAS INTENDED TO HAVE BROAD JURISDICTION OVER AIR CARRIERS,
INSOFAR AS MOST FACETS OF FEDERAL CONTROL ARE CONCERNED.  P. 304. 

(E)  THIS COURT DOES NOT HOLD, HOWEVER, THAT THERE ARE NO ANTITRUST
VIOLATIONS LEFT TO THE DEPARTMENT OF JUSTICE TO ENFORCE.  PP. 304-305. 

(F)  THE ACTS CHARGED IN THIS SUIT AS ANTITRUST VIOLATIONS ARE
PRECISE INGREDIENTS OF THE BOARD'S AUTHORITY IN GRANTING, QUALIFYING,
OR DENYING CERTIFICATES TO AIR CARRIERS, IN MODIFYING, SUSPENDING, OR
REVOKING THEM, AND IN ALLOWING OR DISALLOWING AFFILIATIONS BETWEEN
COMMON CARRIERS AND AIR CARRIERS.  PP. 305-306. 

(G)  WHATEVER THE UNFAIR PRACTICE OR UNFAIR METHOD EMPLOYED, SEC. 411
OF THE ACT WAS DESIGNED TO BOLSTER AND STRENGTHEN ANTITRUST
ENFORCEMENT.  SECTION 411 IS PATTERNED AFTER SEC. 5 OF THE FEDERAL
TRADE COMMISSION ACT, AND CASES INTERPRETING SEC. 5 ARE RELEVANT IN
DETERMINING THE MEANING OF SEC. 411; BUT THE APPLICATION OF SEC. 411 IN
ANY GIVEN SITUATION MUST BE DETERMINED IN LIGHT OF THE STANDARDS SET BY
THE CIVIL AERONAUTICS ACT.  PP. 306-308. 

(H)  THE ACT LEAVES TO THE BOARD UNDER SEC. 411 ALL QUESTIONS OF
INJUNCTIVE RELIEF AGAINST THE DIVISION OF TERRITORIES OR THE ALLOCATION
OF ROUTES OR AGAINST COMBINATIONS BETWEEN COMMON CARRIERS AND AIR
CARRIERS.  PP. 308-310. 

(I)  THE BOARD'S POWER TO ISSUE A "CEASE AND DESIST" ORDER IS BROAD
ENOUGH TO INCLUDE THE POWER TO COMPEL DIVESTITURE WHERE THE PROBLEM
LIES WITHIN THE PURVIEW OF THE BOARD.  PP. 311-313. 

PAN AMERICAN WORLD AIRWAYS, INC., V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL SUIT BROUGHT BY THE UNITED STATES CHARGING VIOLATIONS
BY PAN AMERICAN, W.R.  GRACE & CO., AND PANAGRA OF SECS. 1, 2, AND 3 OF
THE SHERMAN ACT, 15 U.S.C. SECS. 1, 2, AND 3.  THIS SUIT, WHICH THE
CIVIL AERONAUTICS BOARD REQUESTED THE ATTORNEY GENERAL TO INSTITUTE
CHARGED TWO MAJOR RESTRAINTS OF TRADE.  FIRST, IT IS CHARGED THAT PAN
AMERICAN AND GRACE, EACH OF WHOM OWNS 50% OF THE STOCK OF PANAGRA,
FORMED THE LATTER UNDER AN AGREEMENT THAT PANAGRA WOULD HAVE THE
EXCLUSIVE RIGHT TO TRAFFIC ALONG THE WEST COAST OF SOUTH AMERICA FREE
FROM PAN AMERICAN COMPETITION AND THAT PAN AMERICAN WAS TO BE FREE FROM
COMPETITION OF PANAGRA IN OTHER AREAS IN SOUTH AMERICA AND BETWEEN THE
CANAL ZONE AND THE UNITED STATES.  SECOND, IT IS CHARGED THAT PAN
AMERICAN AND GRACE CONSPIRED TO MONOPOLIZE AND DID MONOPOLIZE AIR
COMMERCE BETWEEN THE EASTERN COASTAL AREAS OF THE UNITED STATES AND
WESTERN COASTAL AREAS OF SOUTH AMERICA AND BUENOS AIRES.  PAN AMERICAN
WAS ALSO CHARGED WITH USING ITS 50% CONTROL OVER PANAGRA TO PREVENT IT
FROM SECURING AUTHORITY FROM THE C.A.B. TO EXTEND ITS ROUTE FROM THE
CANAL ZONE TO THE UNITED STATES.  (FN1) 

IN 1928, WHEN PAN AMERICAN AND GRACE ENTERED INTO AN AGREEMENT TO
FORM PANAGRA, (FN2) AIR TRANSPORTATION WAS IN ITS INFANCY; AND THIS WAS
THE FIRST ENTRY OF AN AMERICAN AIR CARRIER ON SOUTH AMERICA'S WEST
COAST.  PAN AMERICAN IN 1930 ACQUIRED THE ASSETS OF AN AIRLINE
COMPETING WITH IT FOR AIR TRAFFIC FROM THIS COUNTRY TO THE NORTH AND
EAST COASTS OF SOUTH AMERICA AND RECEIVED A POST OFFICE AIR MAIL
SUBSIDY CONTRACT.  (FN3) 

THE DISTRICT COURT FOUND THAT THERE WAS NO VIOLATION BY PAN AMERICAN
AND GRACE OF SEC. 1 OF THE SHERMAN ACT THROUGH THE DIVISION OF SOUTH
AMERICAN TERRITORY BETWEEN PAN AMERICAN AND PANAGRA.  (FN4)  IT HELD,
HOWEVER, THAT PAN AMERICAN VIOLATED SEC. 2 OF THE SHERMAN ACT BY
SUPPRESSING PANAGRA'S EFFORTS TO EXTEND ITS ROUTE FROM THE CANAL ZONE
TO THIS COUNTRY - IN PARTICULAR, BY BLOCKING PANAGRA'S APPLICATION TO
THE CIVIL AERONAUTICS BOARD FOR A CERTIFICATE FOR OPERATION NORTH OF
THE CANAL ZONE.  (FN5)  IT INDICATED THAT PAN AMERICAN SHOULD DIVEST
ITSELF OF PANAGRA STOCK.  BUT IT DIRECTED DISMISSAL OF THE COMPLAINT
AGAINST GRACE AND AGAINST PANAGRA, HOLDING THAT NONE OF THEIR
RESPECTIVE PRACTICES VIOLATED THE SHERMAN ACT.  193 F. SUPP. 18.  BOTH
PAN AMERICAN AND THE UNITED STATES COME HERE ON DIRECT APPEALS (15
U.S.C.  SEC. 29); AND WE POSTPONED THE QUESTION OF JURISDICTION TO THE
MERITS.  368 U.S. 964, 966. 

WHEN THE TRANSACTIONS, NOW CHALLENGED AS RESTRAINTS OF TRADE AND
MONOPOLY, WERE FIRST CONSUMMATED, AIR CARRIERS WERE NOT SUBJECT TO
PERVASIVE REGULATION.  IN 1938 THE CIVIL AERONAUTICS ACT (52 STAT. 973)
WAS PASSED WHICH WAS SUPERSEDED IN 1958 BY THE FEDERAL AVIATION ACT, 72
STAT. 731, 49 U.S.C. SEC. 1301 ET SEQ., THE LATTER MAKING NO CHANGES
RELEVANT TO OUR PRESENT PROBLEM.  SINCE 1938, THE INDUSTRY HAS BEEN
REGULATED UNDER A REGIME DESIGNED TO CHANGE THE PRIOR COMPETITIVE
SYSTEM.  AS STATED IN S. REP. NO. 1661, 75TH CONG., 3D SESS., P. 2,
"COMPETITION AMONG AIR CARRIERS IS BEING CARRIED TO AN EXTREME, WHICH
TENDS TO JEOPARDIZE THE FINANCIAL STATUS OF THE AIR CARRIERS AND TO
JEOPARDIZE AND RENDER UNSAFE A TRANSPORTATION SERVICE APPROPRIATE TO
THE NEEDS OF COMMERCE AND REQUIRED IN THE PUBLIC INTEREST, IN THE
INTERESTS OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE." 

SOME PROVISIONS OF THE 1938 ACT DEAL ONLY WITH THE FUTURE, NOT THE
PAST.  SUCH, FOR EXAMPLE, ARE THE PROVISIONS DEALING WITH ABANDONMENT
OF ROUTES (SEC. 401(K)), WITH LOANS OR FINANCIAL AID FROM THE UNITED
STATES (SEC. 410), AND WITH CRIMINAL PENALTIES.  SEC. 902.  THE ACT,
HOWEVER, DID NOT FREEZE THE STATUS QUO NOR ATTEMPT TO LEGALIZE ALL
EXISTING PRACTICES.  THUS SEC. 401 REQUIRES EVERY "AIR CARRIER" TO
ACQUIRE A CERTIFICATE FROM THE BOARD, A PROCEDURE BEING PROVIDED
WHEREBY SOME COULD OBTAIN "GRANDFATHER" RIGHTS.  BY SEC. 401(H) THE
BOARD HAS AUTHORITY TO ALTER, AMEND, MODIFY, OR SUSPEND CERTIFICATES
WHENEVER IT FINDS SUCH ACTION TO BE IN THE PUBLIC INTEREST. 

CARRIERS AND OTHER COMMON CARRIERS OR BETWEEN AIR CARRIERS AND THOSE
"ENGAGED IN ANY PHASE OF AERONAUTICS," LOOKS NOT ONLY TO THE FUTURE BUT
TO THE PAST AS WELL.  FOR THE PROHIBITION IS THAT NO AIR CARRIER MAY
"HAVE AND RETAIN" OFFICERS OR DIRECTORS OF THE DESCRIBED CLASSES. 
ACQUISITION OF CONTROL OVER AN "AIR CARRIER," MAKES IT UNLAWFUL, UNLESS
APPROVED BY THE BOARD, FOR ANY "COMMON CARRIER" TO "PURCHASE, LEASE, OR
CONTRACT TO OPERATE THE PROPERTIES" OF AN "AIR CARRIER" OR TO "ACQUIRE
CONTROL OF ANY AIR CARRIER IN ANY MANNER WHATSOEVER" OR TO "CONTINUE TO
MAINTAIN ANY RELATIONSHIP ESTABLISHED IN VIOLATION OF ANY OF THE
FOREGOING" PROVISIONS OF SEC. 408(A).  BY SEC. 408(B) A COMMON CARRIER
IS TAKEN TO BE AN "AIR CARRIER" FOR THE PURPOSES OF SEC. 408; AND
TRANSACTIONS THAT LINK "COMMON CARRIERS" TO "AIR CARRIERS" SHALL NOT BE
APPROVED UNLESS THE BOARD FINDS THAT "THE TRANSACTION PROPOSED WILL
PROMOTE THE PUBLIC INTEREST BY ENABLING SUCH CARRIER OTHER THAN AN AIR
CARRIER TO USE AIRCRAFT TO PUBLIC ADVANTAGE IN ITS OPERATION AND WILL
NOT RESTRAIN COMPETITION." 

WE DO NOT SUGGEST THAT GRACE, A COMMON CARRIER, NEED GET THE BOARD'S
APPROVAL TO CONTINUE THE RELATIONSHIP IT HAD WITH PANAGRA WHEN THE 1938
ACT BECAME EFFECTIVE.  (FN6)  IT IS CLEAR, HOWEVER, THAT THE BOARD
UNDER SEC. 411 OF THE 1958 ACT HAS JURISDICTION OVER "UNFAIR PRACTICES"
AND "UNFAIR METHODS OF COMPETITION" EVEN THOUGH THEY ORIGINATED PRIOR
TO 1938. 

THAT SECTION PROVIDES: 

"THE BOARD MAY, UPON ITS OWN INITIATIVE OR UPON COMPLAINT BY ANY AIR
CARRIER, FOREIGN AIR CARRIER, OR TICKET AGENT, IF IT CONSIDERS THAT
SUCH ACTION BY IT WOULD BE IN THE INTEREST OF THE PUBLIC, INVESTIGATE
AND DETERMINE WHETHER ANY AIR CARRIER, FOREIGN AIR CARRIER, OR TICKET
AGENT HAS BEEN OR IS ENGAGED IN UNFAIR OR DECEPTIVE PRACTICES OR UNFAIR
METHODS OF COMPETITION IN AIR TRANSPORTATION OR THE SALE THEREOF.  IF
THE BOARD SHALL FIND, AFTER NOTICE AND HEARING, THAT SUCH AIR CARRIER,
FOREIGN AIR CARRIER, OR TICKET AGENT IS ENGAGED IN SUCH UNFAIR OR
DECEPTIVE PRACTICES OR UNFAIR METHODS OF COMPETITION, IT SHALL ORDER
SUCH AIR CARRIER, FOREIGN AIR CARRIER, OR TICKET AGENT TO CEASE AND
DESIST FROM SUCH PRACTICES OR METHODS OF COMPETITION."  49 U.S.C. SEC.
1381. 

THE WORDS "HAS BEEN OR IS ENGAGED IN UNFAIR  ...  PRACTICES OR UNFAIR
METHODS OF COMPETITION" PLAINLY INCLUDE PRACTICES STARTED BEFORE THE
1938 ACT AND CONTINUED THEREAFTER (FN7) AS WELL AS PRACTICES INSTITUTED
AFTER THE EFFECTIVE DATE OF THE ACT. 

THE PARENTAGE OF SEC. 411 IS ESTABLISHED.  AS THE COURT STATED IN
AMERICAN AIRLINES V. NORTH AMERICAN AIRLINES, 351 U.S. 79, 82, THIS
(FN8) AND "WE MAY PROFITABLY LOOK TO JUDICIAL INTERPRETATION OF SEC. 5
AS AN AID IN THE RESOLUTION OF  ...  QUESTIONS RAISED  ...  UNDER SEC.
411."  AS RESPECTS THE "PUBLIC INTEREST" UNDER SEC. 411, THE COURT
SAID: 

"  ...  THE AIR CARRIERS HERE CONDUCT THEIR BUSINESS UNDER A
REGULATED SYSTEM OF LIMITED COMPETITION.  THE BUSINESS SO CONDUCTED IS
OF ESPECIAL AND ESSENTIAL CONCERN TO THE PUBLIC, AS IS TRUE OF ALL
COMMON CARRIERS AND PUBLIC UTILITIES.  FINALLY, CONGRESS HAS COMMITTED
THE REGULATION OF THIS INDUSTRY TO AN ADMINISTRATIVE AGENCY OF SPECIAL
COMPETENCE THAT DEALS ONLY WITH THE PROBLEMS OF THE INDUSTRY."  ID.,
84. 

THE BOARD IN REGULATING AIR CARRIERS IS TO DEAL WITH AT LEAST SOME
ANTITRUST PROBLEMS.  APART FROM ITS POWER UNDER SEC. 411, IT IS GIVEN
AUTHORITY BY SECS. 408 AND 409, AS ALREADY NOTED, OVER CONSOLIDATIONS,
MERGERS, PURCHASES, LEASES, OPERATING CONTRACTS, ACQUISITION OF CONTROL
OF AN AIR CARRIER, AND INTERLOCKING RELATIONS.  POOLING AND OTHER LIKE
ARRANGEMENTS ARE UNDER THE BOARD'S JURISDICTION BY REASON OF SEC. 412. 
ANY PERSON AFFECTED BY AN ORDER UNDER SECS. 408, 409 AND 412 IS
"RELIEVED FROM THE OPERATIONS OF THE 'ANTITRUST LAWS,'" INCLUDING THE
SHERMAN ACT.  SEC. 414.  THE CLAYTON ACT, INSOFAR AS IT IS APPLICABLE
TO AIR CARRIERS, IS ENFORCEABLE BY THE BOARD.  52 STAT. 973, 1028, SEC.
1107(G); 15 U.S.C. SEC. 21. 

THERE ARE VARIOUS INDICATIONS IN THE LEGISLATIVE HISTORY THAT THE
CIVIL AERONAUTICS BOARD WAS TO HAVE BROAD JURISDICTION OVER AIR
CARRIERS, INSOFAR AS MOST FACETS OF FEDERAL CONTROL ARE CONCERNED. 

THE HOUSE REPORT STATED: 

"IT IS THE PURPOSE OF THIS LEGISLATION TO COORDINATE IN A SINGLE
INDEPENDENT AGENCY ALL OF THE EXISTING FUNCTIONS OF THE FEDERAL
GOVERNMENT WITH RESPECT TO CIVIL AERONAUTICS, AND, IN ADDITION, TO
AUTHORIZE THE NEW AGENCY TO PERFORM CERTAIN NEW REGULATORY FUNCTIONS
WHICH ARE DESIGNED TO STABILIZE THE AIR-TRANSPORTATION INDUSTRY IN THE
UNITED STATES."  H.R. REP. NO. 2254, 75TH CONG., 3D SESS., P. 1. 

NO MENTION IS MADE OF THE DEPARTMENT OF JUSTICE AND ITS ROLE IN THE
ENFORCEMENT OF THE ANTITRUST LAWS, YET WE HESITATE HERE, AS IN
COMPARABLE SITUATIONS, (FN9) TO HOLD THAT THE NEW REGULATORY SCHEME
ADOPTED IN 1938 WAS DESIGNED COMPLETELY TO DISPLACE THE ANTITRUST LAWS
ABSENT AN UNEQUIVOCALLY DECLARED CONGRESSIONAL PURPOSE SO TO DO.
WHILE THE BOARD IS EMPOWERED TO DEAL WITH NUMEROUS ASPECTS OF WHAT ARE
NORMALLY THOUGHT OF AS ANTITRUST PROBLEMS, THOSE EXPRESSLY ENTRUSTED TO
IT ENCOMPASS ONLY A FRACTION OF THE TOTAL.  APART FROM ORDERS WHICH
GIVE IMMUNITY FROM THE ANTITRUST LAWS BY REASON OF SEC. 414, THE WHOLE
CRIMINAL LAW ENFORCEMENT PROBLEM REMAINS UNAFFECTED BY THE ACT.  CF.
UNITED STATES V. PACIFIC & ARCTIC CO., 228 U.S. 87, 105.  MOREOVER, ON
THE CIVIL SIDE VIOLATIONS OF ANTITRUST LAWS OTHER THAN THOSE ENUMERATED
IN THE ACT MIGHT BE IMAGINED.  WE, THEREFORE, REFUSE TO HOLD THAT THERE
ARE NO ANTITRUST VIOLATIONS LEFT TO THE DEPARTMENT OF JUSTICE TO
ENFORCE. 

THAT DOES NOT, HOWEVER, END OUR INQUIRY.  LIMITATION OF ROUTES AND
DIVISIONS OF TERRITORIES AND THE RELATION OF COMMON CARRIERS TO AIR
CARRIERS ARE BASIC IN THIS REGULATORY SCHEME.  THE ACTS CHARGED IN THIS
CIVIL SUIT AS ANTITRUST VIOLATIONS ARE PRECISE INGREDIENTS OF THE
BOARD'S AUTHORITY IN GRANTING, QUALIFYING, OR DENYING CERTIFICATES TO
AIR CARRIERS, IN MODIFYING, SUSPENDING, OR REVOKING THEM, AND IN
ALLOWING OR DISALLOWING AFFILIATIONS BETWEEN COMMON CARRIERS AND AIR
CARRIERS.   (FN10)  THE CASE IS THEREFORE QUITE UNLIKE GEORGIA V.
PENNSYLVANIA R. CO., SUPRA, WHERE A CONSPIRACY AMONG CARRIERS FOR THE
FIXING OF THROUGH AND JOINT RATES WAS HELD TO CONSTITUTE A CAUSE OF
ACTION UNDER THE ANTITRUST LAWS, IN VIEW OF THE FACT THAT THE
INTERSTATE COMMERCE COMMISSION HAD NO POWER TO GRANT RELIEF AGAINST
SUCH COMBINATIONS.  (FN11)  AND SEE UNITED STATES V. R.C.A., 358 U.S.
334, 346.  AND THE PRESENT ACT DOES NOT HAVE ANYTHING COMPARABLE TO THE
HISTORY OF THE CAPPER-VOLSTEAD ACT, WHICH WE REVIEWED IN MILK PRODUCERS
ASSN V. UNITED STATES, 362 U.S. 458, AND WHICH SHOWED THAT FARMER
PRODUCERS WERE NOT MADE IMMUNE FROM THE CLASS OF PREDATORY PRACTICES
CHARGED IN THAT CIVIL SUIT AS ANTITRUST VIOLATIONS.  ID., PP. 464-467. 

THE WORDS "UNFAIR  ...  PRACTICES" AND "UNFAIR METHODS OF
COMPETITION" AS USED IN SEC. 411 CONTAIN A "BROADER" CONCEPT THAN "THE
COMMON-LAW IDEA OF UNFAIR COMPETITION."  AMERICAN AIRLINES V. NORTH
AMERICAN AIRLINES, SUPRA, 85.  THEY DERIVE, AS ALREADY NOTED, FROM THE
FEDERAL TRADE COMMISSION ACT; AND THEIR MEANING IN THE SETTING OF THAT
ACT HAS BEEN MUCH DISCUSSED.  THEY DO NOT EMBRACE A REMEDY FOR PRIVATE
WRONGS BUT ONLY A MEANS OF VINDICATING THE PUBLIC INTEREST.  FEDERAL
TRADE COMM'N V. KLESNER, 280 U.S. 19, 25-30.  THE SCOPE OF "UNFAIR
PRACTICES" AND "UNFAIR METHODS OF COMPETITION" WAS LEFT FOR CASE-BY
CASE DEFINITION.  THE SENATE REPORT STATED: 

"IT IS BELIEVED THAT THE TERM 'UNFAIR COMPETITION' HAS A LEGAL
SIGNIFICANCE WHICH CAN BE ENFORCED BY THE COMMISSION AND THE COURTS,
AND THAT IT IS NO MORE DIFFICULT TO DETERMINE WHAT IS UNFAIR
COMPETITION THAN IT IS TO DETERMINE WHAT IS A REASONABLE RATE OR WHAT
IS AN UNJUST DISCRIMINATION.  THE COMMITTEE WAS OF THE OPINION THAT IT
WOULD BE BETTER TO PUT IN A GENERAL PROVISION CONDEMNING UNFAIR
COMPETITION THAN TO ATTEMPT TO DEFINE THE NUMEROUS UNFAIR PRACTICES,
SUCH AS LOCAL PRICE CUTTING, INTERLOCKING DIRECTORATES, AND HOLDING
COMPANIES INTENDED TO RESTRAIN SUBSTANTIAL COMPETITION."  S. REP. NO.
597, 63D CONG., 2D SESS., P. 13. 

THE LEGISLATIVE HISTORY WAS REVIEWED IN FEDERAL TRADE COMM'N V.
RALADAM CO., 283 U.S. 643, 649-650, THE COURT CONCLUDING THAT "UNFAIR
COMPETITION WAS THAT PRACTICE WHICH DESTROYS COMPETITION AND
ESTABLISHES MONOPOLY."  ID., 650.  THE PROVISION WAS DESIGNED TO
SUPPLEMENT THE SHERMAN ACT BY STOPPING "IN THEIR INCIPIENCY THOSE
METHODS OF COMPETITION WHICH FALL WITHIN THE MEANING OF THE WORD
'UNFAIR.'  ...  ALL THREE STATUTES (THE SHERMAN AND CLAYTON ACTS AND
SEC. 5) SEEK TO PROTECT THE PUBLIC FROM ABUSES ARISING IN THE COURSE OF
COMPETITIVE INTERSTATE AND FOREIGN TRADE."  (FN12)  ID., 647.  SEE
FEDERAL TRADE COMM'N V. BEECH-NUT CO., 257 U.S. 441, 453-454; FEDERAL
TRADE COMM'N V. KEPPEL & BRO., 291 U.S. 304, 310-312; 2 TOULMIN'S ANTI
TRUST LAWS (1949) SEC. 43.6.  JOINT VENTURES MAY BE COMBINATIONS IN
VIOLATION OF THE ANTITRUST LAWS.  TIMKEN ROLLER BEARING CO. V. UNITED
STATES, 341 U.S. 593, 598.  WHATEVER THE UNFAIR PRACTICE OR UNFAIR
METHOD EMPLOYED, SEC. 411 OF THIS ACT, LIKE SEC. 5 OF THE FEDERAL TRADE
COMMISSION ACT (FEDERAL TRADE COMM'N V. MOTION PICTURE ADV.  CO., 344
U.S. 392, 394-395), WAS DESIGNED TO BOLSTER AND STRENGTHEN ANTITRUST
ENFORCEMENT.    WE HAVE SAID ENOUGH TO INDICATE THAT THE WORDS "UNFAIR
PRACTICES" AND "UNFAIR METHODS OF COMPETITION" ARE NOT LIMITED TO
PRECISE PRACTICES THAT CAN READILY BE CATALOGUED.  THEY TAKE THEIR
MEANING FROM THE FACTS OF EACH CASE AND THE IMPACT OF PARTICULAR
PRACTICES ON COMPETITION AND MONOPOLY. 

THESE WORDS, TRANSFERRED TO THE CIVIL AERONAUTICS ACT, GATHER MEANING
FROM THE CONTEXT OF THAT PARTICULAR REGULATORY MEASURE AND THE TYPE OF
COMPETITIVE REGIME WHICH IT VISUALIZES.  CF. AMERICAN POWER CO. V.
SECURITIES & EXCHANGE COMM'N, 329 U.S. 90, 104-105.  THAT REGIME HAS
ITS SPECIAL STANDARD OF THE "PUBLIC INTEREST" AS DEFINED BY CONGRESS. 
THE STANDARDS TO BE APPLIED BY THE BOARD IN ENFORCING THE ACT ARE
BROADLY STATED IN SEC. 2: 

"IN THE EXERCISE AND PERFORMANCE OF ITS POWERS AND DUTIES UNDER THIS
CHAPTER, THE BOARD SHALL CONSIDER THE FOLLOWING, AMONG OTHER THINGS, AS
BEING IN THE PUBLIC INTEREST, AND IN ACCORDANCE WITH THE PUBLIC
CONVENIENCE AND NECESSITY: 

"(A) THE ENCOURAGEMENT AND DEVELOPMENT OF AN AIR-TRANSPORTATION
SYSTEM PROPERLY ADAPTED TO THE PRESENT AND FUTURE NEEDS OF THE FOREIGN
AND DOMESTIC COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND
OF THE NATIONAL DEFENSE: 

"(B) THE REGULATION OF AIR TRANSPORTATION IN SUCH MANNER AS TO
RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF, ASSURE THE HIGHEST
DEGREE OF SAFETY IN, AND FOSTER SOUND ECONOMIC CONDITIONS IN, SUCH
TRANSPORTATION, AND TO IMPROVE THE RELATIONS BETWEEN, AND COORDINATE
TRANSPORTATION BY, AIR CARRIERS: 

"(C) THE PROMOTION OF ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE BY
AIR CARRIERS AT REASONABLE CHARGES, WITHOUT UNJUST DISCRIMINATIONS,
UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR DESTRUCTIVE COMPETITIVE
PRACTICES: 

"(D) COMPETITION TO THE EXTENT NECESSARY TO ASSURE THE SOUND
DEVELOPMENT OF AN AIR-TRANSPORTATION SYSTEM PROPERLY ADAPTED TO THE
NEEDS OF THE FOREIGN AND DOMESTIC COMMERCE OF THE UNITED STATES, OF THE
POSTAL SERVICE, AND OF THE NATIONAL DEFENSE: 

"(E) THE REGULATION OF AIR COMMERCE IN SUCH MANNER AS TO BEST PROMOTE
ITS DEVELOPMENT AND SAFETY; AND: 

"(F) THE ENCOURAGEMENT AND DEVELOPMENT OF CIVIL AERONAUTICS."  52
STAT. 980.  AND SEE 49 U.S.C. SEC. 1302. 

THE "PRESENT AND FUTURE NEEDS" OF OUR FOREIGN AND DOMESTIC COMMERCE,
REGULATIONS THAT FOSTER "SOUND ECONOMIC CONDITIONS," THE PROMOTION OF
SERVICE FREE OF "UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES,"
REGULATIONS THAT PRODUCE THE PROPER DEGREE OF "COMPETITION" - EACH OF
THESE IS PERTINENT TO THE PROBLEMS ARISING UNDER SEC. 411. 

IT WOULD BE STRANGE, INDEED, IF A DIVISION OF TERRITORIES OR AN
ALLOCATION OF ROUTES WHICH MET THE REQUIREMENTS OF THE "PUBLIC
INTEREST" AS DEFINED IN SEC. 2 WERE HELD TO BE ANTITRUST VIOLATIONS. 
IT WOULD ALSO BE ODD TO CONCLUDE THAT AN AFFILIATION BETWEEN A COMMON
CARRIER AND AN AIR CARRIER THAT PASSED MUSTER UNDER SEC. 408 SHOULD RUN
AFOUL OF THE ANTITRUST LAWS.  WHETHER OR NOT TRANSACTIONS OF THAT
CHARACTER MEET THE STANDARDS OF COMPETITION AND MONOPOLY PROVIDED BY
THE ACT IS PECULIARLY A QUESTION FOR THE BOARD, SUBJECT OF COURSE TO
JUDICIAL REVIEW AS PROVIDED IN 49 U.S.C. SEC. 1486.  CF. FEDERAL
MARITIME BD. V. ISBRANDTSEN CO., 356 U.S. 481; SCHAFFER TRANSPORTATION
CO. V. UNITED STATES, 355 U.S. 83. 

IN CASE OF A PROSPECTIVE APPLICATION OF THE ACT, THE BOARD'S ORDER,
AS NOTED, WOULD GIVE THE CARRIER IMMUNITY FROM ANTITRUST VIOLATIONS
"INSOFAR AS MAY BE NECESSARY TO ENABLE SUCH PERSON TO DO ANYTHING
AUTHORIZED, APPROVED, OR REQUIRED BY SUCH ORDER."  SEC. 414. 
ALTERNATIVELY, THE BOARD UNDER SEC. 411 CAN INVESTIGATE AND BRING TO A
HALT ALL "UNFAIR  ...  PRACTICES" AND ALL "UNFAIR METHODS OF
COMPETITION," INCLUDING THOSE WHICH STARTED PRIOR TO THE ACT.  (FN13)
IF THE COURTS WERE TO INTRUDE INDEPENDENTLY WITH THEIR CONSTRUCTION OF
THE ANTITRUST LAWS, TWO REGIMES MIGHT COLLIDE.  FURTHERMORE, MANY OF
THE PROBLEMS PRESENTED BY THIS CASE, WHICH INVOLVES AIR ROUTES TO AND
IN FOREIGN COUNTRIES, MAY INVOLVE MILITARY AND FOREIGN POLICY
CONSIDERATIONS THAT THE ACT, AS CONSTRUED BY A MAJORITY OF THE COURT IN
CHICAGO & SOUTHERN AIR LINES V. WATERMAN S.S. CORP., 333 U.S. 103,
SUBJECTS TO PRESIDENTIAL RATHER THAN JUDICIAL REVIEW.  IT SEEMS TO US,
THEREFORE, THAT THE ACT LEAVES TO THE BOARD UNDER SEC. 411 ALL
QUESTIONS OF INJUNCTIVE RELIEF AGAINST THE DIVISION OF TERRITORIES OR
THE ALLOCATION OF ROUTES OR AGAINST COMBINATIONS BETWEEN COMMON
CARRIERS AND AIR CARRIERS.  (FN14)  SEE TEXAS & PACIFIC R. CO. V.
ABILENE COTTON OIL CO., 204 U.S. 426; KEOGH V. CHICAGO & N.W.R. CO.,
260 U.S. 156. 

THE FACT THAT TRANSACTIONS OCCURRING BEFORE 1938 ARE INVOLVED IN THIS
CASE DOES NOT CHANGE OUR CONCLUSION.  THE PAST IS PROLOGUE AND THE
IMPACT OF PRE-1938 TRANSACTIONS ON PRESENT PROBLEMS OF AIR CARRIERS IS
ELOQUENTLY DEMONSTRATED IN A RECENT ORDER OF THE BOARD CONCERNING THE
UNITED STATES FLAG CARRIER ROUTE PATTERN BETWEEN THIS COUNTRY AND SOUTH
AMERICA WHICH IS SET FORTH IN PART IN THE APPENDIX TO THIS OPINION. 
THE STATUS OF PANAGRA - JOINTLY OWNED BY PAN AMERICAN AND GRACE - IS
CENTRAL TO THAT PROBLEM, (FN15) AS THAT ORDER MAKES CLEAR.  WHAT WAS
DONE IN THE PRE-1938 DAYS MAY BE SO DISRUPTIVE OF THE REGIME VISUALIZED
BY THE ACT OR SO OUT OF HARMONY WITH THE STATUTORY STANDARDS FOR
COMPETITION SET BY THE ACT (FN16) THAT IT SHOULD BE UNDONE IN
PROCEEDINGS UNDER SEC. 411.  THE TRANSACTIONS IN QUESTION ARE REACHED
BY THE TERMS OF SEC. 411.  BUT MORE IMPORTANT, THE PARTICULAR RELATION
OF THIS PROBLEM TO THE GENERAL PROCESS OF ENCOURAGING DEVELOPMENT OF
NEW FIELDS OF AIR TRANSPORTATION MAKES IT ALL THE MORE APPROPRIATE THAT
THE BOARD SHOULD DECIDE WHETHER THESE PARTICULAR TRANSACTIONS SHOULD BE
UNDONE IN WHOLE OR IN PART, OR WHETHER THEY SHOULD BE ALLOWED TO
CONTINUE. 

IT IS SUGGESTED THAT THE POWER OF THE BOARD TO ISSUE A "CEASE AND
DESIST" ORDER IS NOT BROAD ENOUGH TO INCLUDE THE POWER TO COMPEL
DIVESTITURE AND THAT IN ANY EVENT ITS POWER TO DO SO UNDER SEC. 411
RUNS SOLELY TO AIR CARRIERS, NOT TO COMMON CARRIERS OR OTHER
STOCKHOLDERS.  WE DO NOT READ THE ACT SO RESTRICTIVELY.  THE BOARD HAS
NO POWER TO AWARD DAMAGES OR TO BRING CRIMINAL PROSECUTIONS.  NOR DOES
IT, AS ALREADY NOTED, HAVE JURISDICTION OVER EVERY ANTITRUST VIOLATION
BY AIR CARRIERS.  BUT WHERE THE PROBLEM LIES WITHIN THE PURVIEW OF THE
BOARD, AS DO QUESTIONS OF DIVISION OF TERRITORIES, THE ALLOCATION OF
ROUTES, AND THE AFFILIATION OF COMMON CARRIERS WITH AIR CARRIERS,
CONGRESS MUST HAVE INTENDED TO GIVE IT AUTHORITY THAT WAS AMPLE TO DEAL
WITH THE EVIL AT HAND. 

WE NEED NOT NOW DETERMINE THE ULTIMATE SCOPE OF THE BOARD'S POWER TO
ORDER DIVESTITURE UNDER SEC. 411.  IT SEEMS CLEAR THAT SUCH POWER
EXISTS (FN17) AT LEAST WITH RESPECT TO THE PARTICULAR PROBLEMS INVOLVED
IN THIS CASE.  OF PRINCIPAL IMPORTANCE HERE, WE THINK, IS THE FACT THAT
THE BOARD COULD HAVE RETAINED SUCH POWER OVER THESE TRANSACTIONS, IF
THEY HAD OCCURRED AFTER 1938, BY SO CONDITIONING ITS GRANT OF
APPROVAL.  THE TERMS OF SEC. 411 DO NOT DISTINGUISH BETWEEN CONDUCT
BEFORE OR AFTER THAT DATE.  IF THE ACT IS TO BE ADMINISTERED AS A
COHERENT WHOLE, WE THINK SEC. 411 MUST INCLUDE AN EQUIVALENT POWER OVER
PRE-ENACTMENT EVENTS OF THE KIND INVOLVED IN THIS CASE (FN18)  -
ALTHOUGH, OF COURSE, THE BOARD MIGHT FIND THAT THE HISTORIC BACKGROUND
OF THESE PRE-1938 TRANSACTIONS INTRODUCES DIFFERENT CONSIDERATIONS IN
FORMULATING A SUITABLE RESOLUTION OF THE PROBLEM INVOLVED. 

WE THINK THE NARROW QUESTIONS PRESENTED BY THIS COMPLAINT HAVE BEEN
ENTRUSTED TO THE BOARD AND THAT THE COMPLAINT SHOULD HAVE BEEN
DISMISSED.  (FN19)  ACCORDINGLY WE REVERSE THE JUDGMENT AND REMAND THE
CASE FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  SO ORDERED. 

FN1  ANOTHER CHARGE RELATES TO ALLEGED RESTRAINTS ON PANAGRA BY ITS
TWO STOCKHOLDERS WHICH THE DISTRICT COURT SUMMARIZED AS FOLLOWS: 

"TO A LARGE EXTENT THE EVIDENCE OF RESTRAINTS ON PANAGRA IN THE
CATEGORIES OF JOINT OFFICES, COMMUNICATIONS, EQUIPMENT, PUBLICITY AND
SALES ARE MATTERS OF AGREEMENT THAT MUST BE INITIALLY APPROVED BY THE
C.A.B. AND TO A LARGE DEGREE HAVE BEEN APPROVED AND OTHERS ARE AWAITING
APPROVAL OR EXTENSION OF APPROVAL PREVIOUSLY GRANTED."  193 F. SUPP.
18, 22. 

FN2  PANAGRA WAS ORGANIZED JANUARY 25, 1929, AND RECEIVED ON MARCH 2,
1929, AN AIR MAIL CONTRACT FROM THE POSTMASTER GENERAL (SEE 45 STAT.
248, 1449) EVEN THOUGH IT WAS NOT THE LOWEST BIDDER.  SEE 36 OP. ATTY.
GEN. 33. 

FN3  THE DISTRICT COURT SAID: 

"THE AWARD OF A POST OFFICE CONTRACT FOR EACH SECTOR OF SOUTH
AMERICA, IN EFFECT, ASSURED THE AMERICAN CONTRACTOR OF A MONOPOLY IN
THAT SECTOR INSOFAR AS AMERICAN FLAG OPERATIONS WERE CONCERNED, AND THE
INVALUABLE ASSISTANCE OF THE STATE DEPARTMENT AND POST OFFICE
DEPARTMENT IN THE CARRIER'S RELATIONS WITH THE COUNTRIES ALONG ITS
ROUTE."  193 F. SUPP. 18, 31. 

FN4  THE DISTRICT COURT SAID: 

"THE STATE DEPARTMENT ACTIVELY ASSISTED DEFENDANTS IN DEFEATING THE
FOREIGN COMPANY DESIGNS FOR MONOPOLY CONCESSIONS AND IN SECURING
AMERICAN OPERATING RIGHTS ALONG THEIR ROUTES.  THE CONTRACTS AWARDED BY
THE POST OFFICE DEPARTMENT DEFINED THE INTERNATIONAL ROUTE OF THE
CONTRACTOR, AND SO TO A LARGE EXTENT DEFINED THE AREA OF DEVELOPMENT
AND EXPANSION OF ANY SUCH CONTRACTOR.  THE POST OFFICE POLICY DURING
THE YEARS 1928 TO 1938 WAS TO AWARD BUT ONE CONTRACT FOR EACH ROUTE, IN
EFFECT TO SUBSIDIZE ONE AMERICAN CARRIER IN A PARTICULAR SECTOR.  THE
IDEAL ROUTE PATTERN AS ENVISAGED BY THE C.A.B. TODAY IS TO HAVE TWO
CARRIERS, PAN AMERICAN AND A MERGED 'PANAGRA-BRANIFF,' AND THE ONLY
DIFFERENCE FROM THAT EXISTING PRIOR TO BRANIFF'S ENTRY WOULD BE THE
EXTENSION OF 'PANAGRA-BRANIFF' TO THE UNITED STATES.  COMPETITION AMONG
AMERICAN CARRIERS UNDER THE POLICY OF THE POST OFFICE DEPARTMENT UNDER
THE FOREIGN MAIL CONTRACTS, WAS ECONOMICALLY IMPOSSIBLE, AND MOST
LIKELY DETRIMENTAL TO THE SOUND DEVELOPMENT OF AMERICAN FLAG SERVICE,
WHICH WOULD HAVE COMPLICATED OR EMBARRASSED THE EFFECTIVE RENDITION OF
DIPLOMATIC ASSISTANCE FROM THE STATE DEPARTMENT, AND ACTUALLY CAUSE A
WASTE OF PUBLIC MONIES.  COMPETITION BETWEEN PANAGRA AND PAN AMERICAN
CERTAINLY WAS NOT ENCOURAGED BY THIS GOVERNMENT.  ON THE CONTRARY,
THERE APPEARS TO EMERGE FROM THE EVIDENCE PRESENTED A DEFINITE POLICY
OF THE GOVERNMENT APPROVING A SORT OF 'ZONING' FOR THE OPERATIONS OF
THE AMERICAN INTERNATIONAL CARRIERS IN THE NATURE OF EAST AND WEST
COAST SPHERES AS WAS ULTIMATELY ARRANGED BETWEEN PAN AMERICAN AND
PANAGRA.  AGREEMENT NOT TO PARALLEL EACH OTHER'S SERVICE IN SOUTH
AMERICA SEEMS PERFECTLY CONSISTENT WITH THE AIR TRANSPORTATION POLICY
OF THIS COUNTRY IN THOSE FORMATIVE YEARS."  193 F. SUPP. 18, 34. 

FN5  SEE PANAGRA TERMINAL INVESTIGATION, 4 C.A.B. 670, REMANDED, W.R.
GRACE & CO. V. C.A.B., 154 F.2D 271.  WE GRANTED CERTIORARI, 328 U.S.
832, AND LATER DISMISSED THE CASE AS MOOT, 332 U.S. 827, BECAUSE PAN
AMERICAN AND PANAGRA HAD SETTLED THEIR DISPUTE THROUGH AN AGREEMENT
APPROVED BY THE C.A.B. (SEE NOTE 15, INFRA), AFTER THE C.A.B. HAD SAID
THAT JOINT CONTROL OF PANAGRA BY PAN AMERICAN AND GRACE WAS "UNHEALTHY"
(4 C.A.B. 670, 678) AND THAT "THE JOINT OWNERS COOPERATIVELY SHOULD
ENABLE PANAGRA TO APPLY FOR ACCESS TO THE EAST COAST OF THE UNITED
STATES."  ADDITIONAL SERVICE TO LATIN AMERICA, 6 C.A.B. 857, 914. 

FN6  THE BOARD HAS HELD THAT SEC. 408(A) IS NOT RETROACTIVE. 
RAILROAD CONTROL OF NORTHEAST AIRLINES, 4 C.A.B. 379, 386.  AND SEE
NATIONAL AIR FREIGHT FORWARD CORP. V. C.A.B., 90 U.S. APP. D.C. 330,
335, 197 F.2D 384, 389. 

FN7  THE SHERMAN ACT WAS APPLIED TO PRE-1890 COMBINATIONS: UNITED
STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290, 342; WATERS
PIERCE OIL CO. V. TEXAS (NO. 1), 212 U.S. 86, 107-108 (TEXAS VERSION OF
THE SHERMAN ACT); SEE ALSO COX V. HART, 260 U.S. 427, 435; AMERICAN
P.&L.  CO. V. SECURITIES & EXCHANGE COMM'N, 141 F.2D 606, 625 (C.A. 1ST
CIR.), AFFIRMED, 329 U.S. 90. 

MOREOVER, AS WE RECENTLY STATED IN UNITED STATES V. DUPONT & CO., 353
U.S. 586, 607, "  ...  THE TEST OF A VIOLATION OF SEC. 7 IS WHETHER, AT
THE TIME OF SUIT, THERE IS A REASONABLE PROBABILITY THAT THE
ACQUISITION IS LIKELY TO RESULT IN THE CONDEMNED RESTRAINTS." 

FN8  THE ORIGINAL ACT TOOK OUT FROM UNDER THE JURISDICTION OF THE
FEDERAL TRADE COMMISSION, "AIR CARRIERS AND FOREIGN AIR CARRIERS
SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938."  52 STAT. 973, 1028,
SEC. 1107(F). 

FN9  CF. GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, HOLDING THAT
THE INTERSTATE COMMERCE ACT IS NO BAR TO AN ANTITRUST SUIT AGAINST A
CARRIER; UNITED STATES V. R.C.A., 358 U.S. 334, HOLDING THAT THE
FEDERAL COMMUNICATIONS ACT IS NO BAR TO AN ANTITRUST SUIT AGAINST TV
AND RADIO LICENSEES; UNITED STATES V. BORDEN CO., 308 U.S. 188, 195
199, HOLDING THAT NEITHER THE AGRICULTURAL ADJUSTMENT ACT NOR THE
CAPPER-VOLSTEAD ACT DISPLACED THE SHERMAN ACT; AND CALIFORNIA V.
FEDERAL POWER COMM'N, 369 U.S. 482, HOLDING THAT THE CLAYTON ACT WAS
NOT DISPLACED BY THE NATURAL GAS ACT.  AND SEE MILK PRODUCERS ASSN. V.
UNITED STATES, 362 U.S. 458. 

FN10  IN PAN AMERICAN-MATSON-INTER-ISLAND CONTRACT, 3 C.A.B. 540, THE
BOARD REJECTED A PROPOSAL FOR THE CREATION OF A JOINT COMPANY SIMILAR
TO PANAGRA FOR SERVICE TO HAWAII.  SUCH JOINT VENTURES, AS WE NOTE IN
THE OPINION, MAY BE COMBINATIONS IN VIOLATION OF THE ANTITRUST LAWS. 
SEE TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S. 593, 598. 
FN11  IT SHOULD BE NOTED THAT THE RESULT IN GEORGIA V. PENNSYLVANIA R.
CO., SUPRA, MIGHT TODAY BE DIFFERENT AS A RESULT OF THE ACT OF JUNE 17,
1948, 62 STAT. 472, WHICH GIVES THE INTERSTATE COMMERCE COMMISSION
AUTHORITY TO APPROVE COMBINATIONS OF THE CHARACTER INVOLVED IN THAT
CASE AND GIVE THEM IMMUNITY FROM THE ANTITRUST LAWS.  SEE S. REP. NO.
1511, 79TH CONG., 2D SESS.; H.R. REP. NO. 1212, 79TH CONG., 1ST SESS.;
H.R. REP. NO. 1100, 80TH CONG., 1ST SESS.  THIS ACT WAS PASSED OVER A
PRESIDENTIAL VETO.  SEE 94 CONG. REC. 8435, 8633. 

FN12  AND SEE THE DEBATES IN 51 CONG. REC. 11874-11876, 12022-12025;
12026-12032.  FN13  WE NOTE, IN ADDITION, THAT THE BOARD ITSELF HAS
ASSUMED JURISDICTION UNDER CHANGED CIRCUMSTANCES IN THOSE AREAS COVERED
BY SEC. 408, IN WHICH IT HAS FOUND ONLY PROSPECTIVE AUTHORITY. 
RAILROAD CONTROL OF NORTHEAST AIRLINES, SUPRA, NOTE 6. 

FN14  AN "AIR CARRIER" IS DEFINED IN SEC. 1(2) AS "ANY CITIZEN OF THE
UNITED STATES WHO UNDERTAKES, WHETHER DIRECTLY OR INDIRECTLY OR BY A
LEASE OR ANY OTHER ARRANGEMENT, TO ENGAGE IN AIR TRANSPORTATION:
PROVIDED, THAT THE AUTHORITY MAY BY ORDER RELIEVE AIR CARRIERS WHO ARE
NOT DIRECTLY ENGAGED IN THE OPERATION OF AIRCRAFT IN AIR TRANSPORTATION
FROM THE PROVISIONS OF THIS ACT TO THE EXTENT AND FOR SUCH PERIODS AS
MAY BE IN THE PUBLIC INTEREST."  WHETHER THERE MIGHT BE "A REASONABLE
BASIS IN LAW" (LABOR BOARD V. HEARST PUBLICATIONS, INC., 322 U.S. 111,
131) FOR A BOARD CONCLUSION THAT GRACE IS AN "AIR CARRIER" BY REASON OF
ITS NEGATIVE CONTROL OVER PANAGRA IS A MATTER ON WHICH WE INTIMATE NO
VIEW.  WE MENTION THE MATTER SO AS NOT TO FORECLOSE THE QUESTION BY ANY
IMPLICATION DRAWN FROM OUR SEPARATE TREATMENT OF COMMON CARRIERS AND
AIR CARRIERS. 

FN15  PHASES OF ISSUES RELATED TO THOSE IN THE PRESENT LITIGATION
HAVE INDEED BEEN BEFORE THE BOARD.  NOTE 5, SUPRA.  IT HELD IN AN
INVESTIGATION THAT IT HAD NO AUTHORITY TO ACCOMPLISH THE COMPULSORY
EXTENSION OF PANAGRA'S ROUTE TO THE UNITED STATES (PANAGRA TERMINAL
INVESTIGATION, 4 C.A.B. 670), A RULING REVIEWED BY THE COURT OF APPEALS
WHICH REMANDED THE MATTER TO THE BOARD FOR FURTHER CONSIDERATION.  W.R.
GRACE & CO. V. CIVIL AERONAUTICS BOARD, 154 F.2D 271.  BEFORE THAT
CONTROVERSY HAD BEEN RESOLVED, PAN AMERICAN AND PANAGRA ENTERED A
"THROUGH FLIGHT AGREEMENT" WHICH IN ESSENCE PROVIDED THAT PAN AMERICAN
WOULD CHARTER ANY AIRCRAFT OPERATED BY PANAGRA FROM THE SOUTH TO THE
CANAL ZONE AND OPERATE IT ON ITS SCHEDULES TO THE UNITED STATES.  THIS
AGREEMENT WITH EXCEPTIONS NOT MATERIAL HERE, WAS APPROVED BY THE
BOARD.  PAN AMERICAN-PANAGRA AGREEMENT, 8 C.A.B. 50. 

FN16  FOR A DISCUSSION OF THE BOARD'S POLICY IN ISSUING CERTIFICATES
TO COMPETING AIR CARRIERS, SEE HALE AND HALE, COMPETITION OR CONTROL
IV: AIR CARRIERS, 109 U. OF PA. L. REV. 311, 314-318. 

FN17  WE HAVE HERETOFORE ANALOGIZED THE POWER OF ADMINISTRATIVE
AGENCIES TO FASHION APPROPRIATE RELIEF TO THE POWER OF COURTS TO
FASHION SHERMAN ACT DECREES.  FEDERAL TRADE COMM'N V. MANDEL BROS., 359
U.S. 385, 392-393.  AUTHORITY TO MOLD ADMINISTRATIVE DECREES IS INDEED
LIKE THE AUTHORITY OF COURTS TO FRAME INJUNCTIVE DECREES (LABOR BOARD
V. EXPRESS PUB. CO., 312 U.S. 426, 433, 436; LABOR BOARD V. CHENEY
LUMBER CO., 327 U.S. 385) SUBJECT OF COURSE TO JUDICIAL REVIEW. 
DISSOLUTION OF UNLAWFUL COMBINATIONS, WHEN BASED ON APPROPRIATE
FINDINGS (SCHINE THEATRES V. UNITED STATES, 334 U.S. 110, 129-130), IS
AN HISTORIC REMEDY IN THE ANTITRUST FIELD, EVEN THOUGH NOT EXPRESSLY
AUTHORIZED.  UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173,
189.  LIKEWISE, THE POWER TO ORDER DIVESTITURE NEED NOT BE EXPLICITLY
INCLUDED IN THE POWERS OF AN ADMINISTRATIVE AGENCY TO BE PART OF ITS
ARSENAL OF AUTHORITY, AS WE HELD ONLY THE OTHER DAY IN GILBERTVILLE
TRUCKING CO. V. UNITED STATES, 371 U.S. 115.  CF. FEDERAL TRADE COMM'N
V. EASTMAN KODAK CO., 274 U.S. 619. 

FN18  THERE IS NO EXPRESS AUTHORITY FOR DIVESTITURE IN EITHER THE
SHERMAN OR CLAYTON ACT.  SEE 15 U.S.C. SECS. 4, 25.  THE REASONING THAT
SUPPORTS SUCH A REMEDY UNDER THOSE ACTS IS AS APPLICABLE TO THE BOARD
AS IT IS TO THE COURTS, AND IT IS AS VALID TODAY AS IT WAS WHEN
ORIGINALLY STATED BY THE FIRST JUSTICE HARLAN: 

"ALL WILL AGREE THAT IF THE  ...  ACT BE CONSTITUTIONAL, AND IF THE
COMBINATION IN QUESTION BE IN VIOLATION OF ITS PROVISIONS, THE COURTS
MAY ENFORCE THE PROVISIONS OF THE STATUTE BY SUCH ORDERS AND DECREES AS
ARE NECESSARY OR APPROPRIATE TO THAT END AND AS MAY BE CONSISTENT WITH
THE FUNDAMENTAL RULES OF LEGAL PROCEDURE."  NORTHERN SECURITIES CO. V.
UNITED STATES, 193 U.S. 197, 344. 

FN19  IF IT WERE CLEAR THAT THERE WAS A REMEDY IN THIS CIVIL
ANTITRUST SUIT THAT WAS NOT AVAILABLE IN A SEC. 411 PROCEEDING BEFORE
THE C.A.B., WE WOULD HAVE THE KIND OF PROBLEM PRESENTED IN HEWITT
ROBINS INC. V. EASTERN FREIGHT-WAYS, INC., ANTE, P. 84, WHERE
LITIGATION IS HELD BY A COURT UNTIL THE BASIC FACTS AND FINDINGS ARE
FIRST DETERMINED BY THE ADMINISTRATIVE AGENCY, SO THAT THE JUDICIAL
REMEDY, NOT AVAILABLE IN THE OTHER PROCEEDING, CAN BE GRANTED.  NOR IS
THIS A CASE WHERE A PROCEEDING BEFORE A SECOND TRIBUNAL IS DESIRABLE
(THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478) OR NECESSARY
(GENERAL AM. TANK CAR CORP. V. EL DORADO TERMINAL CO., 308 U.S. 422;
THOMPSON V. TEXAS MEXICAN R. CO., 328 U.S. 134, 150-151) FOR AN
AUTHORITATIVE DETERMINATION OF A LEGAL QUESTION CONTROLLING IN THE
FIRST TRIBUNAL. 

DISMISSAL OF ANTITRUST SUITS, WHERE AN ADMINISTRATIVE REMEDY HAS
SUPERSEDED THE JUDICIAL ONE, IS THE USUAL COURSE.  SEE UNITED STATES
NAV. CO. V. CUNARD S.S. CO., 284 U.S. 474; FAR EAST CONFERENCE V.
UNITED STATES, 342 U.S. 570, 577. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

FOR DISSENTING OPINION OF MR. JUSTICE BRENNAN, SEE POST, P. 319. 

                              APPENDIX TO OPINION OF THE COURT. 

       ORDER NO. E-17289

 UNITED STATES OF AMERICA

   CIVIL AERONAUTICS BOARD

       WASHINGTON, D.C.

                           ADOPTED BY THE CIVL AERONAUTICS BOARD

AT ITS OFFICE IN WASHINGTON, D.C. ON THE

               8TH DAY OF AUGUST, 1961. 

IN THE MATTER OF THE UNITED STATES-SOUTH AMERICAN ROUTE CASE.  -
DOCKET 12895. 

                              ORDER INSTITUTING INVESTIGATION 

THE BOARD HAS DECIDED THAT IT IS APPROPRIATE AT THIS TIME TO
INSTITUTE A COMPREHENSIVE REVIEW OF THE U.S. FLAG CARRIER ROUTE PATTERN
BETWEEN THE UNITED STATES AND SOUTH AMERICA.  THE MOST RECENT EXTENSIVE
STUDY OF THAT ROUTE STRUCTURE WAS UNDERTAKEN IN 1946, SOME 15 YEARS
AGO.  SINCE THEN CONSIDERABLE DEVELOPMENTS, HEREINAFTER REFERRED TO,
HAVE TAKEN PLACE WHICH AFFECT THESE SERVICES AND REQUIRE THE REVIEW
HERE CONTEMPLATED. 

THREE U.S. CARRIERS ARE PRESENTLY CERTIFICATED TO PROVIDE THE MAJOR
SERVICES TO POINTS IN SOUTH AMERICA.  PAN AMERICAN WORLD AIRWAYS, INC.
(PAN AMERICAN), IS AUTHORIZED TO PROVIDE SERVICE BETWEEN SAN FRANCISCO,
LOS ANGELES, HOUSTON, NEW ORLEANS, WASHINGTON, PHILADELPHIA AND NEW
YORK-NEWARK, ON THE ONE HAND, AND POINTS ON THE NORTH AND EAST COASTS
OF SOUTH AMERICA INCLUDING RIO DE JANEIRO AND BUENOS AIRES, ON THE
OTHER HAND, VIA POINTS IN CENTRAL AMERICA AND THE CARIBBEAN, ON ROUTE
136.  PAN AMERICAN-GRACE AIRWAYS, INC. (PANAGRA) IS AUTHORIZED TO
PROVIDE SERVICE BETWEEN BALBOA, GUAYAQUIL, LIMA, SANTIAGO AND BUENOS
AIRES, VIA INTERMEDIATE POINTS, PRIMARILY ALONG THE WEST COAST OF SOUTH
AMERICA, ON ROUTE 146.  BRANIFF AIRWAYS, INC. (BRANIFF) IS AUTHORIZED
TO PROVIDE SERVICE BETWEEN HOUSTON AND MIAMI, ON THE ONE HAND, AND
HAVANA, BALBOA, BOGOTA, GUAYAQUIL, LIMA, RIO DE JANEIRO AND BUENOS
AIRES, ON THE OTHER HAND, VIA INTERMEDIATE POINTS, ON ROUTE FAM-34. 
(FN1) 

AS PREVIOUSLY INDICATED, THE BASIC U.S. FLAG CARRIER ROUTE PATTERNS
BETWEEN THE UNITED STATES AND SOUTH AMERICA PRESENTLY IN EFFECT WERE
ESTABLISHED SOME YEARS AGO IN THE ADDITIONAL SERVICE TO LATIN AMERICA
CASE, 6 C.A.B. 857 (1946).  MATTERS INVOLVING SERVICE BETWEEN THE
UNITED STATES AND SOUTH AMERICA WERE, HOWEVER, FURTHER CONSIDERED IN
THE NEW YORK-BALBOA THROUGH SERVICE PROCEEDING, REOPENED, 18 C.A.B. 501
(1954), 20 C.A.B. 493 (1954), AND CERTAIN THROUGH-SERVICE AIRCRAFT
INTERCHANGE AGREEMENTS WERE APPROVED AS A RESULT OF THE NEW YORK-BALBOA
CASE BY ORDER E-9481, 21 C.A.B. 1005 (1955).  ALSO, THE CERTIFICATION
OF A LOS ANGELES/SAN FRANCISCO-GUATEMALA CITY ROUTE, LAST CONSIDERED IN
ORDER E-9514, AUGUST 3, 1955, PERMITTED PAN AMERICAN TO OPERATE BETWEEN
THE WEST COAST OF THE UNITED STATES AND POINTS IN SOUTH AMERICA. 

SINCE THE ORIGINAL ESTABLISHMENT OF THE BASIC SOUTH AMERICA ROUTE
STRUCTURE, THERE HAVE BEEN BASIC CHANGES IN TECHNOLOGY AND PATTERNS OF
SERVICE.  THUS, IN 1944, THE RANGE OF AIRCRAFT WAS RELATIVELY LIMITED
AND OPERATIONAL REQUIREMENTS, AS WELL AS ECONOMIC CONSIDERATIONS,
REQUIRED MULTIPLE STOPS ON THE LONG-HAUL SERVICE.  TODAY, AVAILABLE
AIRCRAFT CAN, AND DO, SERVE THE MOST DISTANT POINTS ON A NONSTOP
BASIS.  OF THE RELATIVE ATTRACTIVENESS OF NONSTOP TO MULTI-STOP SERVICE
IN COMPARABLE EQUIPMENT THERE CAN BE NO QUESTION; CONSEQUENTLY, THE
CHANGED TECHNOLOGY WHICH HAS MADE NONSTOP SERVICES OPERATIONALLY
FEASIBLE WARRANTS A CAREFUL REVIEW OF THE ECONOMICS OF SUCH SERVICE IN
RELATION TO THE EXISTING AND FUTURE ROUTE STRUCTURE.  SIMILARLY,
CHANGES HAVE TAKEN PLACE IN THE COMPETITIVE PICTURE.  PRIOR TO THE
DECISION IN THE LATIN AMERICA CASE, SUPRA, PAN AMERICAN AND PANAGRA
OPERATED IN COMPETITION WITH THREE FOREIGN AIR CARRIERS.  TODAY, 19
SOUTH AMERICAN FOREIGN AIR CARRIERS ARE AUTHORIZED TO SERVE THE UNITED
STATES-SOUTH AMERICA MARKET.  THERE HAS ALSO BEEN AN INCREASE IN
SERVICE WITHIN SOUTH AMERICA BY LOCAL CARRIERS.  NOT ONLY DO THESE
SERVICES RENDERED BY NON-U.S. FLAG CARRIERS DILUTE THE POTENTIAL
ECONOMIC SUPPORT FOR THE SERVICES OF THE U.S. CARRIERS, BUT ALSO THEY
BRING INTO QUESTION THE NEED FOR POINT-TO-POINT DUPLICATION OF SUCH
SERVICES.  IN THIS CONNECTION, WE CANNOT BE UNMINDFUL OF THE FACT THAT
THE U.S. FLAG CARRIERS' OPERATIONS ARE MARGINAL ECONOMICALLY. 

OUR CONCERN WITH THE CURRENT SOUTH AMERICA ROUTE PATTERN IS NOT A
RECENT ONE.  AS LONG AGO AS 1954, THE BOARD PUBLICLY SUGGESTED THAT THE
AVAILABLE TRAFFIC IN SOUTH AMERICA DID NOT WARRANT CONTINUATION OF
THREE UNITED STATES FLAG SERVICES.  (FN2)  IN THE INTERIM OPINION, IN
THE NEW YORK-BALBOA CASE, SUPRA, IT WAS NOTED THAT BRANIFF WAS NOT AN
EFFECTIVE COMPETITOR FOR SOUTH AMERICAN TRAFFIC AND THAT THE PUBLIC
INTEREST OF THE UNITED STATES WOULD BE SERVED BY THE ESTABLISHMENT OF A
SINGLE INDEPENDENT CARRIER OPERATION BETWEEN HOUSTON AND MIAMI, ON THE
ONE HAND, AND THE POINTS SERVED ON THE COMBINED ROUTES OF PANAGRA AND
BRANIFF, ON THE OTHER HAND.  THE BOARD THEN ALSO VOICED ITS INTEREST IN
MAKING SUCH A ROUTE AVAILABLE TO NORTHEASTERN UNITED STATES TRAFFIC. 
THE HOPE THEN WAS THAT THE CARRIERS CONCERNED WOULD VOLUNTARILY SEEK TO
RESOLVE THE PROBLEM ALONG THE LINES SUGGESTED.  (FN3)  IN THIS
CONNECTION, WE WERE FULLY COGNIZANT OF THE RECENT INSTITUTION OF A SUIT
BY THE ATTORNEY GENERAL AGAINST PAN AMERICAN, PANAGRA, AND W.R.  GRACE
AND COMPANY, WHICH, ON ANTITRUST GROUNDS, SOUGHT DIVESTITURE BY PAN
AMERICAN AND GRACE OF THEIR INTEREST IN PANAGRA.  HOWEVER, THE
PRINCIPALS DID NOT COME FORWARD WITH A PROPOSAL.  INSTEAD, THE SUIT WAS
PERMITTED TO PROCEED TO TRIAL AND JUDGMENT, AND IT IS CURRENTLY PENDING
POSSIBLE REVIEW BY THE UNITED STATES SUPREME COURT.  (FN4) 

ASSUMING THAT THE DISTRICT COURT'S JUDGMENT, AT LEAST INSOFAR AS IT
ORDERED DIVESTITURE BY PAN AMERICAN OF ITS INTEREST IN PANAGRA, IS
SUSTAINED, (FN5) IT IS CLEAR THAT THE BOARD WILL, IN THE NEAR FUTURE,
BE CALLED UPON TO CONSIDER FURTHER THE CONSEQUENCES OF DIVESTITURE WITH
RESPECT TO U.S. FLAG SERVICES IN SOUTH AMERICA.  AND IN ORDER FOR THE
BOARD TO BE ABLE PROMPTLY AND EFFECTIVELY TO TAKE SUCH FURTHER STEPS AS
MIGHT BE REQUIRED IN THE CIRCUMSTANCES, IT WOULD BE WELL FOR IT TO HAVE
CONSIDERED CAREFULLY THE OVERALL NEED FOR U.S. FLAG SERVICES IN SOUTH
AMERICA IN THE LIGHT OF A LITIGATED RECORD. 

SINCE THE SELECTION OF CARRIER ISSUES WILL REMAIN SOMEWHAT CLOUDED
UNTIL FINAL RESOLUTION OF THE PENDING ANTITRUST SUIT, IT APPEARS
APPROPRIATE AND IN THE INTEREST OF A SOUND AND ORDERLY DISPOSITION OF
THIS PROCEEDING TO CONSIDER SEPARATELY THE APPROPRIATE ROUTE STRUCTURE
PRIOR TO CONSIDERATION OF SELECTION OF CARRIER MATTERS.  WE RECOGNIZE
THAT FACTUAL MATTERS RELATIVE TO PUBLIC CONVENIENCE AND NECESSITY
ISSUES MAY ALSO HAVE THEIR CARRIER SELECTION ASPECTS; SIMILARLY, WE ARE
NOT UNMINDFUL OF THE FACT THAT, WHILE THE PRESCRIBED ROUTE PATTERN CAN
BE ESTABLISHED IN SUBSTANTIAL PART WITHOUT REGARD TO CARRIER SELECTION,
SOME ADJUSTMENT IN ROUTE PATTERN MAY BE FOUND NECESSARY AT THE TIME WE
DECIDE THE CARRIER SELECTION ISSUES.  WE ANTICIPATE, HOWEVER, THE FULL
COOPERATION OF ALL CONCERNED TO FACILITATE AN APPROPRIATE SEPARATION OF
THESE ISSUES. 

THE BOARD INTENDS THAT THE SCOPE OF THE PROCEEDING INSTITUTED HEREIN
INCLUDE ISSUES WITH RESPECT TO AUTHORIZATION OF SERVICES TO NEW POINTS,
THE DELETION OF PRESENTLY CERTIFICATED POINTS, AND THE CONSOLIDATION OF
SEPARATE ROUTES INTO SINGLE ROUTES.  (FN6)  CARIBBEAN POINTS WILL BE
CONSIDERED ONLY TO THE EXTENT THAT THEY ARE IN ISSUE AS POSSIBLE
INTERMEDIATE POINTS ON UNITED STATES-SOUTH AMERICA ROUTES, AND THE
PROCEEDING WILL NOT EXAMINE SERVICES WHOLLY WITHIN THE CARIBBEAN AREA,
OR BETWEEN POINTS IN THE UNITED STATES AND THE CARIBBEAN. 

IN ITS STUDY OF THE SOUTH AMERICAN ROUTE PATTERN, THE BOARD HAS
TENTATIVELY CONCLUDED THAT AN EAST COAST ROUTE AND A WEST COAST ROUTE
ARE REQUIRED.  THE DETAILS OF THE ROUTES ARE SET FORTH IN THE ATTACHED
ANALYSIS.  IN ADDITION, AND BECAUSE WE HAVE FOUND THAT CONSIDERABLE
ROUTE MODIFICATIONS ARE NECESSARY TO MEET PRESENT NEEDS AND PROBLEMS,
WE HAVE COMPILED AND ATTACHED HERETO DATA WHICH WE BELIEVE WILL
FACILITATE HEARING AND DECISION.  THE ATTACHED MATERIALS SHOULD SERVE
AS THE FOCAL POINT FOR THE TRIAL OF THIS CASE, AND WE DIRECT THAT THE
PRESENTATION OF PARTICIPANTS IN THE PROCEEDING, UNLESS OTHERWISE
ORDERED BY THE BOARD UPON GOOD CAUSE SHOWN THEREFOR, BE POINTED TO
SHOWING WHY AND IN WHAT MANNER THE CONCLUSIONS DERIVED FROM THE STUDY
SHOULD BE MODIFIED.  SUCH AN APPROACH CAN RESTRICT THE HEARING TO
RELEVANT AND MATERIAL FACTS AND OTHERWISE MINIMIZE PROCEDURAL DELAY. 

FN1  DELTA AIR LINES, INC. (DELTA) IS AUTHORIZED TO SERVE CARACAS AND
CERTAIN CARIBBEAN POINTS ON ITS CARIBBEAN ROUTE 114 FROM HOUSTON AND
NEW ORLEANS; AND AEROVIAS SUD AMERICANA, INC. (ASA) IS AUTHORIZED TO
PROVIDE CARGO AND MAIL SERVICE (ON A NONSUBSIDY BASIS) BETWEEN FLORIDA
POINTS AND POINTS IN CENTRAL AND SOUTH AMERICA.  THE ONLY SOUTH
AMERICAN POINTS PRESENTLY SERVED BY ASA ARE QUITO AND GUAYAQUIL,
ECUADOR. 

FN2  REOPENED NEW YORK-BALBOA THROUGH SERVICE CASE, 18 C.A.B. 501. 

FN3  THE POWERS GRANTED THE BOARD IN THE FEDERAL AVIATION ACT OF 1958
AND ITS PREDECESSOR, THE CIVIL AERONAUTICS ACT OF 1938, DO NOT INCLUDE
AUTHORITY TO COMPEL MERGER, OR TO TERMINATE THE ENTIRE ROUTE OF A
CARRIER. 

FN4  THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK HANDED
DOWN A DECISION ON MAY 8, 1961, U.S. V. PAN AMERICAN WORLD AIRWAYS,
INC., W.R. GRACE AND COMPANY, AND PAN AMERICAN-GRACE AIRWAYS, INC.,
CIV. 90-259.  PAN AMERICAN FILED A NOTICE OF APPEAL IN THE SUPREME
COURT ON MAY 11, 1961. 

FN5  THE ATTORNEY GENERAL HAD SOUGHT DIVESTITURE BY BOTH GRACE AND
PAN AMERICAN. 

FN6  PENDING CERTIFICATE APPLICATIONS INVOLVING SERVICE BETWEEN THE
UNITED STATES AND SOUTH AMERICA WILL BE CONSIDERED FOR CONSOLIDATION
UPON APPROPRIATE REQUEST SUBMITTED WITHIN 20 DAYS OF THE DATE OF
SERVICE OF THIS ORDER.  APPLICATIONS NOT MOVED FOR CONSOLIDATION WILL
BE SUBJECT TO DISMISSAL FOR LACK OF PROSECUTION. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

THE COURT HOLDS THAT THE "NARROW QUESTIONS PRESENTED BY THIS
COMPLAINT HAVE BEEN ENTRUSTED TO THE (CIVIL AERONAUTICS) BOARD AND THAT
THE COMPLAINT SHOULD HAVE BEEN DISMISSED."  THE GROUND OF THE DECISION
IS THAT THE PROVISIONS FOR ECONOMIC REGULATION IN THE CIVIL AERONAUTICS
ACT OF 1938, WHICH WERE REENACTED WITHOUT CHANGE IN THE FEDERAL
AVIATION ACT OF 1958, DISPLACED THE SHERMAN ACT INSOFAR AS "ALL
QUESTIONS OF INJUNCTIVE RELIEF AGAINST THE DIVISION OF TERRITORIES OR
THE ALLOCATION OF ROUTES OR AGAINST COMBINATIONS BETWEEN COMMON
CARRIERS AND AIR CARRIERS" IS CONCERNED.  WITH ALL RESPECT, I THINK
THIS CONCLUSION IS CONTRARY TO REASON AND PRECEDENT. 

                                            I. 

THE ROOT ERROR, AS I SEE IT, IN THE COURT'S DECISION IS THAT IT WORKS
AN EXTRAORDINARY AND UNWARRANTED DEPARTURE FROM THE SETTLED PRINCIPLES
BY WHICH THE ANTITRUST AND REGULATORY REGIMES OF LAW ARE ACCOMMODATED
TO EACH OTHER.  AS A RESULT OF TODAY'S DECISION, CERTAIN QUESTIONS
UNDER THE ANTITRUST LAWS ARE PLACED IN THE EXCLUSIVE COMPETENCE OF THE
BOARD AND WILL NOT BE THE SUBJECT OF ORIGINAL COURT ACTIONS TO ENFORCE
THE ANTITRUST LAWS.  IN EFFECT, A PRO TANTO REPEAL OF THE ANTITRUST
LAWS IS CONTEMPLATED, SINCE THE LAW TO BE APPLIED IN BOARD PROCEEDINGS
UNDER SEC. 411 IS BASED NOT UPON THE ANTITRUST LAWS BUT UPON THE
"PUBLIC INTEREST" AND "COMPETITION TO THE EXTENT NECESSARY" STANDARDS
OF THE BOARD'S OVERALL MANDATE.  SEE 49 U.S.C.  SEC. 1302.  AND THOUGH
THE BOARD'S DECISIONS UNDER SEC. 411 ARE SUBJECT TO JUDICIAL REVIEW,
PRESUMABLY SUCH REVIEW WILL BE LIMITED TO ENSURING THAT THE BOARD
ADHERES TO THE CRITERIA SET OUT IN ITS MANDATE.  SEE AMERICAN AIRLINES,
INC., V. NORTH AMERICAN AIRLINES, INC., 351 U.S. 79, 85. 

BUT OF THE INSTRUMENTS OF ACCOMMODATION THAT ARE AVAILABLE, PRO TANTO
REPEAL OF THE ANTITRUST LAWS BY IMPLICATION FROM A REGULATORY STATUTE
SUCH AS THE AERONAUTICS ACT IS SURELY THE VERY LAST THAT OUGHT TO BE
RESORTED TO.  IT CANNOT BE JUSTIFIED AS A MATTER OF STATUTORY
CONSTRUCTION.  SECTION 414 OF THE ACT IMMUNIZES FROM THE OPERATION OF
THE ANTITRUST LAWS TRANSACTIONS AS TO WHICH THE BOARD HAS ISSUED ORDERS
OF APPROVAL UNDER SECS. 408, 409, AND 412 (CONSOLIDATIONS AND MERGERS,
INTERLOCKING DIRECTORATES, AND COOPERATIVE WORKING ARRANGEMENTS).  THE
EXISTENCE OF THIS EXPRESS AND SPECIFIC PROVISION FOR EXEMPTION WOULD
SEEM TO PRESUPPOSE THE GENERAL APPLICABILITY OF THE ANTITRUST LAWS TO
THE AIRLINE INDUSTRY, AND TO LIMIT THE BOARD'S EXEMPTING POWER TO THE
ENUMERATED ORDERS, WHICH DO NOT INCLUDE ORDERS ISSUED UNDER SEC. 411;
THE COURT CONCEDES THAT THE BOARD HAS NO POWER UNDER SECS. 408, 409, OR
412 TO APPROVE THE TRANSACTIONS UPON WHICH THE INSTANT SUIT IS
PREDICATED.  FURTHERMORE, IT IS ODD INDEED THAT THE BOARD SHOULD HAVE
EXPRESS STATUTORY AUTHORIZATION TO ENFORCE SECS. 2, 3, 7, AND 8 OF THE
CLAYTON ACT (SEE 15 U.S.C. SEC. 21) WHILE THE SHERMAN ACT IS NOT
ENFORCEABLE BY ANY PROCEDURE WITH RESPECT TO THE WIDE RANGE OF
TRANSACTIONS COMPRISED IN THE RULE LAID DOWN BY THE COURT TODAY.  IT IS
ODD BECAUSE THE CLAYTON ACT WAS INTENDED TO SUPPLEMENT AND REINFORCE
THE BASIC ANTITRUST PROHIBITIONS OF THE SHERMAN ACT, RATHER THAN TO
FORM AN INDEPENDENT AND SELF-SUFFICIENT SCHEME OF REGULATION.  BY ITS
ACTION TODAY, THE COURT SUBJECTS THE AIRLINE INDUSTRY TO A CRAZY QUILT
OF ANTITRUST CONTROLS THAT CONGRESS CAN HARDLY HAVE CONTEMPLATED. 

TWO FURTHER ASPECTS OF THE AERONAUTICS ACT CUT AGAINST THE COURT'S
INTERPRETATION.  THE FIRST IS THE PRESENCE OF A SAVING CLAUSE: "NOTHING
CONTAINED IN THIS CHAPTER SHALL IN ANY WAY ABRIDGE OR ALTER THE
REMEDIES NOW EXISTING AT COMMON LAW OR BY STATUTE, BUT THE PROVISIONS
OF THIS CHAPTER ARE IN ADDITION TO SUCH REMEDIES."  49 U.S.C. SEC.
1506.  THE SECOND IS THE TOTAL ABSENCE FROM THE ACT OF ANY PROVISION
FOR DAMAGES OR REPARATIONS.  THIS LACUNA LEADS THE COURT, SOMEWHAT
UNUSUALLY IN LIGHT OF CERTAIN PRIOR DECISIONS, (FN1) TO INTIMATE THAT
THE DAMAGES REMEDY UNDER THE ANTITRUST LAWS SURVIVES WHERE THE
INJUNCTIVE REMEDY IS BARRED - AN IMPRACTICAL SOLUTION, AS I SHALL TRY
TO DEMONSTRATE, SEE INFRA, PP. 326-327.  THE MORE REASONABLE
INTERPRETATION OF THE ABSENCE OF A PROVISION FOR DAMAGES IS THAT THE
ACT WAS NOT INTENDED TO BE AN ABSOLUTELY ALL-INCLUSIVE SCHEME OF
REGULATION WHICH WOULD OUST EVERY REMEDY AFFORDED BY A DIFFERENT
STATUTE OR BY THE COMMON LAW.  THE ANTITRUST LAWS WERE TO BE ALLOWED TO
FUNCTION, SAVE AS REGARDS THE SPECIFIC EXEMPTIONS PROVIDED FOR IN SEC.
414, AND THESE LAWS WOULD SUPPORT ACTIONS FOR DAMAGES AND FOR EQUITABLE
RELIEF. 

I AM SATISFIED THAT THE SCHEME OF THE AERONAUTICS ACT REFUTES ANY
INFERENCE THAT PRO TANTO REPEAL OF THE ANTITRUST LAWS WAS INTENDED. 
NOR DOES THE LEGISLATIVE HISTORY FURNISH ANY SUPPORT FOR THE COURT'S
POSITION.  THE COURT CITES BUT A SINGLE SENTENCE: "IT IS THE PURPOSE OF
THIS LEGISLATION TO COORDINATE IN A SINGLE INDEPENDENT AGENCY ALL OF
THE EXISTING FUNCTIONS OF THE FEDERAL GOVERNMENT WITH RESPECT TO CIVIL
AERONAUTICS  ...  ."  H.R. REP. NO. 2254, 75TH CONG., 3D SESS., P. 1. 
PRIOR TO THE ENACTMENT OF THE AERONAUTICS ACT OF 1938, THE REGULATION
OF CIVIL AVIATION HAD BEEN DIVIDED BETWEEN THE INTERSTATE COMMERCE
COMMISSION, THE DEPARTMENT OF COMMERCE, AND THE POST OFFICE DEPARTMENT;
AND THE PLAIN MEANING OF THE QUOTED SENTENCE, ESPECIALLY IN LIGHT OF
THE DEBATES THAT PRECEDED PASSAGE OF THE ACT, IS THAT AS A RESULT OF
THE ACT REGULATION OF CIVIL AVIATION WOULD BE CENTRALIZED IN ONE
AGENCY, THE CAB.  SEE HEARINGS ON H.R. 9738 BEFORE THE HOUSE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE, 75TH CONG., 3D SESS., P. 37. 

BUT A STILL MORE CONCLUSIVE REFUTATION OF THE COURT'S READING OF THE
ACT IS PROVIDED BY AN UNBROKEN CHAIN OF DECISIONS BY THIS COURT
REJECTING, IN COMPARABLE SITUATIONS, CLAIMED PRO TANTO REPEALS BY
IMPLICATION OF THE ANTITRUST LAWS.  PERHAPS THE LEADING CASE IS UNITED
STATES V. BORDEN CO., 308 U.S. 188, 197-206, WHERE THE COURT HELD
EMPHATICALLY THAT THE ENACTMENT OF A REGULATORY STATUTE WOULD NOT BE
DEEMED TO WORK A PRO TANTO REPEAL OF THE ANTITRUST LAWS, SAVE ONLY IF
THERE WAS A PLAIN REPUGNANCY BETWEEN THE TWO REGIMES (WHICH THE COURT
DOES NOT SUGGEST, EXCEPT IN THE VAGUEST CONCLUSIONAL TERMS, IS THE CASE
HERE), IN WHICH CASE REPEAL WOULD BE IMPLIED ONLY TO THE EXTENT OF THE
REPUGNANCY.  BUT THE HOLDING OF THE BORDEN CASE HAD BEEN ANTICIPATED IN
MUCH EARLIER DECISIONS OF THE COURT.  SEE UNITED STATES V. TRANS
MISSOURI FREIGHT ASSN., 166 U.S. 290, 314-315; KEOGH V. CHICAGO &
N.W.R. CO., 260 U.S. 156, 161-162; CENTRAL TRANSFER CO. V. TERMINAL
RAILROAD ASSN., 288 U.S. 469, 474-475; TERMINAL WAREHOUSE CO. V.
PENNSYLVANIA R. CO., 297 U.S. 500, 513-515.  SEE ALSO UNITED STATES V.
JOINT TRAFFIC ASSN., 171 U.S. 505; UNITED STATES V. PACIFIC & ARCTIC
RY. & NAV. CO., 228 U.S. 87, 107-108.  AND THE CANON OF CONSTRUCTION
THAT REPEALS BY IMPLICATION ARE NOT FAVORED HAS EVEN A LONGER HISTORY
IN THIS COURT'S JURISPRUDENCE.  SEE, E.G., UNITED STATES V. TYNEN, 11
WALL.  88, 92; HENDERSON'S TOBACCO, 11 WALL.  652. 

GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 456-457, STRONGLY
REAFFIRMED THE BORDEN PRINCIPLE IN THE CONTEXT OF A REGULATORY SCHEME,
THE INTERSTATE COMMERCE ACT, NO LESS PERVASIVE THAN THAT WHICH GOVERNS
THE AIRLINE INDUSTRY.  I BELIEVE IT IS ACCURATE TO SAY THAT THE COURT
HAD NEVER UNTIL TODAY DEVIATED FROM THIS POSITION.  SEE UNITED STATES
ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S. 196, 205-206; ALLEN
BRADLEY CO. V. LOCAL UNION NO. 3, 325 U.S. 797; UNITED STATES V. RADIO
CORP. OF AMERICA, 358 U.S. 334; MARYLAND & VA. MILK PRODUCERS ASSN. V.
UNITED STATES, 362 U.S. 458, 464-466; CALIFORNIA V. FEDERAL POWER
COMM'N, 369 U.S. 482.  CF. UNITED STATES V. SOCONY-VACUUM OIL CO., 310
U.S. 150, 226-227; FEDERAL MARITIME BD. V. ISBRANDTSEN CO., 356 U.S.
481.  ONLY LAST TERM, IN CALIFORNIA V. FEDERAL POWER COMM'N, SUPRA, WE
WROTE: "IMMUNITY FROM THE ANTITRUST LAWS IS NOT LIGHTLY IMPLIED  ...  .
WE COULD NOT ASSUME THAT CONGRESS, HAVING GRANTED ONLY A LIMITED
EXEMPTION FROM THE ANTITRUST LAWS, NONETHELESS GRANTED AN OVERALL
INCLUSIVE ONE.  SEE UNITED STATES V. BORDEN CO., 308 U.S. 188, 198
202."  369 U.S., AT 485. 

FURTHERMORE, ALTHOUGH THIS COURT HAD NOT UNTIL TODAY PASSED ON THE
QUESTION WHETHER THE AERONAUTICS ACT REPEALED BY IMPLICATION ANY PART
OF THE ANTITRUST LAWS, THE LOWER FEDERAL COURTS HAVE UNIFORMLY HELD
THAT IT DID NOT.  SEE S.S.W., INC., V. AIR TRANSPORT ASSN., 89 U.S.
APP. D.C. 273, 191 F.2D 658 (1951), CERT. DENIED, 343 U.S. 955; APGAR
TRAVEL AGENCY, INC., V. INTERNATIONAL AIR TRANSPORT ASSN., 107 F. SUPP.
706 (D.C.S.D.N.Y. 1952); SLICK AIRWAYS, INC., V. AMERICAN AIRLINES,
INC., 107 F. SUPP. 199 (D.C.D.N.J. 1951), PETITION FOR PROHIBITION
DISMISSED SUB NOM. AMERICAN AIRLINES V. FORMAN, 204 F.2D 230 (C.A. 3D
CIR. 1953), CERT. DENIED SUB NOM. AMERICAN AIRLINES, INC., V. SLICK
AIRWAYS, INC., 346 U.S. 806. 

FINALLY, IT HAS BEEN HELD THAT SEC. 411 OF THE AERONAUTICS ACT WAS
MODELED ON SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, 15 U.S.C. SEC.
45, AND THAT DECISIONS UNDER SEC. 5 ARE PRECEDENTS FOR THE CONSTRUCTION
OF SEC. 411.  AMERICAN AIRLINES, INC., V. NORTH AMERICAN AIRLINES,
INC., 351 U.S. 79, 82.  AND SEC. 5 HAS UNIFORMLY BEEN CONSTRUED TO
PROVIDE FOR DUAL ENFORCEMENT BY COURTS AND AGENCY OF THE ANTITRUST
LAWS, NOT EXCLUSIVE ENFORCEMENT BY THE AGENCY.  UNITED STATES ALKALI
EXPORT ASSN. V. UNITED STATES, 325 U.S. 196, 205-211; FEDERAL TRADE
COMM'N V. CEMENT INSTITUTE, 333 U.S. 683, 692-695; UNITED STATES V.
CHARLES PFIZER & CO., 205 F. SUPP. 94 (D.C.S.D.N.Y. 1962); UNITED
STATES V. CEMENT INSTITUTE, 85 F. SUPP. 344 (D.C.D. COLO. 1949). 

IN LIGHT OF THIS DECISIONAL HISTORY, IT CANNOT BE SUPPOSED THAT
CONGRESS, WHEN IT FIRST ENACTED A SCHEME OF COMPREHENSIVE ECONOMIC
REGULATION OF THE AIRLINE INDUSTRY IN 1938 AND WHEN IT REENACTED THESE
ECONOMIC PROVISIONS WITHOUT CHANGE IN 1958, INTENDED ANY DISPLACEMENT
OF THE ANTITRUST LAWS BEYOND THAT SPECIFICALLY PROVIDED FOR IN SEC.
414.  NOR DID THE DECISIONS I HAVE CITED REST UPON THE MECHANICAL
APPLICATION OF ONE OF THE COMMON LAW'S CANONS OF STATUTORY
CONSTRUCTION.  HOWEVER QUESTIONABLE THE PRINCIPLE THAT REPEALS BY
IMPLICATION ARE NOT FAVORED MAY BE IN OTHER CONTEXTS, IT IS ENTIRELY
SOUND WHEN DEALING WITH THE ANTITRUST LAWS, AND ESPECIALLY THE SHERMAN
ACT.  FOR THIS ACT EMBODIES PERHAPS THE MOST BASIC ECONOMIC POLICY OF
OUR SOCIETY, BASIC AND CONTINUING: ABHORRENCE OF MONOPOLY.  THE KIND OF
CONDUCT PROSCRIBED BY THE SHERMAN ACT IS SIMPLY NOT SUCH THAT
CONGRESSIONAL SILENCE MAY BE INTERPRETED AS CONGRESSIONAL APPROVAL. 
WHERE, AS HERE, NEITHER THE SCHEME OF THE REGULATORY STATUTE NOR
ANYTHING IN THE LEGISLATIVE HISTORY SUPPORTS A PRO TANTO REPEAL BY
IMPLICATION OF THE SHERMAN ACT, IT SEEMS TO ME INESCAPABLE THAT WE MUST
REJECT SUCH A SOLUTION.  NOR CAN IT BE SERIOUSLY CONTENDED THAT ON THE
FACTS OF THE INSTANT CASE JUDICIAL ENFORCEMENT OF THE ANTITRUST LAWS
WOULD DISRUPT, EVEN SLIGHTLY, THE BOARD'S REGULATION OF CIVIL
AVIATION.  SEE PART III, P. 327, INFRA.  AND SINCE NO QUESTION OF
CERTIFICATION FOR FOREIGN AIR CARRIAGE IS INVOLVED, THERE IS NO DANGER
OF COURT INTERFERENCE IN MATTERS COMMITTED TO THE PRESIDENT'S
DISCRETION BY 49 U.S.C. SEC. 1461. 

                             II. 

THE DECISION TODAY IS, TO ME, NOT ONLY UNSOUND IN LAW, BUT
IMPRACTICAL.  THE COURT PURPORTS TO LAY DOWN A GENERAL RULE GOVERNING
THE DIVISION OF RESPONSIBILITIES BETWEEN THE COURTS AND THE CAB; AND
WHILE CERTAIN ANTITRUST QUESTIONS, INCLUDING THOSE AT BAR, ARE TO BE
WITHDRAWN FROM THE COURTS, OTHERS ARE TO REMAIN SUBJECT TO JUDICIAL
ENFORCEMENT.  I CONSIDER THE COURT'S PROPOSED LINE OF DEMARCATION
BETWEEN THE JUDICIAL AND ADMINISTRATIVE REGIMES UNSUPPORTABLE.  I SEE
NO BASIS UPON WHICH TO WITHDRAW QUESTIONS OF ROUTE ALLOCATION,
TERRITORIAL DIVISION, AND COMBINATIONS BETWEEN COMMON CARRIERS AND AIR
CARRIERS FROM JUDICIAL COGNIZANCE, YET LEAVE UNAFFECTED (AS THE COURT
APPEARS TO INTEND TO DO) QUESTIONS OF RATE FIXING, COMBINATIONS BETWEEN
AIR CARRIERS SIMPLICITER, AND OTHER SERIOUS ANTICOMPETITIVE PRACTICES. 
BY WHAT ARCANE LOGIC DOES A CONSPIRACY TO FIX ROUTES GO MORE TO THE
HEART OF THE REGULATORY SCHEME THAN A CONSPIRACY TO FIX RATES?  TRUE,
THE BOARD, WHILE IT HAS AUTHORITY TO FIX ROUTES IN FOREIGN AIR
TRANSPORTATION, HAS NO AUTHORITY TO FIX RATES THEREIN; BUT THE ACT
BROADLY PROHIBITS ALL FORMS OF UNJUST DISCRIMINATION, WHICH OF COURSE
WOULD EMBRACE MANY RATE-FIXING PRACTICES.  SEE 49 U.S.C. SEC. 1374(B);
GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 478, 480 (DISSENTING
OPINION).  AND WHAT JUSTIFICATION CAN THERE BE FOR THE BOARD'S HAVING
EXCLUSIVE JURISDICTION OF A COMBINATION ONE PARTY TO WHICH IS PROBABLY
OUTSIDE THE BOARD'S JURISDICTION, SEE INFRA, PP. 330-331, BUT NOT OF A
COMBINATION BOTH PARTIES TO WHICH ARE CLEARLY WITHIN THE BOARD'S
JURISDICTION?  THE ONLY EXPLANATION I CAN CONCEIVE FOR THESE DUBIOUS
DISTINCTIONS IS THAT THE COURT DOES NOT WANT TO GO SO FAR AS FLATLY TO
OVERRULE SOME WELL-ESTABLISHED DECISIONS OF THIS COURT.  (FN2) 

I FIND IT EQUALLY DIFFICULT TO UNDERSTAND THE COURT'S APPARENTLY
LIMITING ITS PRO TANTO REPEAL OF THE ANTITRUST LAWS TO QUESTIONS OF
INJUNCTIVE RELIEF.  IT IS TRUE THAT AN ORDER OF DIVESTITURE OR SOME
OTHER EQUITABLE REMEDY MAY BE MORE EFFECTIVE TO DETER CERTAIN ANTITRUST
VIOLATIONS THAN EITHER CRIMINAL OR DAMAGES SANCTIONS.  BUT THE
DIFFERENCE IN EFFECTIVENESS IS ONE ONLY OF DEGREE.  AN AIR CARRIER IS
NOT LIKELY TO PERSIST IN A COURSE OF CONDUCT IF HEAVY CRIMINAL
PENALTIES AND AWARDS OF TREBLE DAMAGES MAY BE VISITED UPON IT.  BUT
JUST THIS POSSIBILITY THE COURT SEEMS TO ALLOW.  I FIND IT HARD TO
FOLLOW THE COURT'S ATTEMPTED JUSTIFICATION FOR MUTILATING THE ANTITRUST
LAWS IN TERMS OF AVOIDING CLASHES BETWEEN TWO REGIMES OF LAW, THE
ADMINISTRATIVE AND THE JUDICAL, WHEN, THE MUTILATION ACHIEVED, THE
CLASHES REMAIN ACUTELY PRESENT.  IN PART, I MUST CONCLUDE THAT THE
COURT'S ARTIFICIAL DISTINCTION AGAIN WAS PROMPTED BY A DESIRE TO SKIRT,
HOWEVER DISINGENUOUSLY, PRIOR HOLDINGS.  (FN3)  IN ADDITION, THE COURT
HAD TO CONJURE WITH THE FACT THAT THE CAB'S STATUTE NOWHERE PROVIDES A
REMEDY, DAMAGES OR REPARATIONS, FOR PAST MISCONDUCT. 

                                     III. 

I SHOULD ALSO LIKE TO SUGGEST THE UNREALITY OF THE COURT'S DECISION
IN THE LIGHT OF THE PARTICULAR CIRCUMSTANCES OF THE INSTANT CASE.  BY
ITS DECISION TODAY THE COURT BRINGS TO NAUGHT NINE YEARS OF
LITIGATION.  YET THESE NINE YEARS ACTUALLY REPRESENT ONLY THE MOST
RECENT PHASE OF A CONTINUING PROBLEM FIRST PLACED BEFORE THE CIVIL
AERONAUTICS BOARD 22 YEARS AGO.  (FN4)  FOR 22 YEARS PAN AMERICAN WORLD
AIRWAYS HAS STAVED OFF THE DAY OF RECKONING IN RESPECT TO THE TACTICS
WHICH, JUDGE MURPHY FOUND BELOW, VIOLATED SEC. 2 OF THE SHERMAN ACT. 
TODAY'S DECISION VINDICATES THESE TACTICS BEYOND PAN AMERICAN'S FONDEST
EXPECTATIONS, FOR THE PROBLEM IS NOW BACK WITH THE CAB WHICH HAS FROM
THE OUTSET PROTESTED ITS INABILITY TO DEAL WITH IT. 

THIS SUIT WAS INSTITUTED BY THE GOVERNMENT AT THE URGING OF THE CAB,
WHICH IN ADDITION FILED AN AMICUS CURIAE BRIEF IN THE DISTRICT COURT IN
SUPPORT OF THE GOVERNMENT'S POSITION.  AND REPEATEDLY OVER A PERIOD OF
MANY YEARS, THE BOARD HAS ADVERTED TO ITS FELT HELPLESSNESS IN THE FACE
OF THE DIVIDED CONTROL OF PANAGRA BY TWO POWERFUL CORPORATIONS, ONE THE
DOMINANT UNITED STATES COMPANY IN THE FIELD OF FOREIGN TRANSPORTATION. 
(FN5)  TO BE SURE, WE ARE NOT OBLIGED TO HONOR THE BOARD'S
DISINCLINATION TO ASSUME JURISDICTION.  TRANS-PACIFIC AIRLINES, LTD.,
V. HAWAIIAN AIRLINES, LTD., 174 F.2D 63 (C.A. 9TH CIR. 1949).  BUT IT
IS ENTITLED TO SOME WEIGHT, SEE 3 DAVIS, ADMINISTRATIVE LAW (1958), 14,
AND INDEED, SINCE THE BOARD'S POSITION HAS BEEN LONG AND CONSISTENTLY
ADHERED TO, TO GREAT WEIGHT.  UNITED STATES V. RADIO CORP. OF AMERICA,
358 U.S. 334, 350, N. 18.  THE SEARCH FOR A PRACTICAL ACCOMMODATION OF
COURT AND AGENCY, WHICH IS THE PROBLEM OF THIS CASE, IS NOT ADVANCED BY
OUR IGNORING THE AGENCY'S CONSIDERED SENSE OF SELF-LIMITATION. 

IT IS NOT AS IF THE BOARD'S HESITANCY TO MOVE AGAINST THE ABUSES
DISCLOSED BY THE RECORD IN THIS CASE WERE NOT BASED UPON SUBSTANTIAL
CONSIDERATIONS.  WE MAY CONCEDE THE BREADTH OF THE BOARD'S POWER UNDER
SEC. 411 TO REMEDY UNFAIR METHODS OF COMPETITION, WHICH MAY SOMETIMES
BE VIOLATIONS OF THE SHERMAN ACT, YET STILL RECOGNIZE THE
UNSUITABLENESS OF SUCH A REMEDY IN THE PARTICULAR CIRCUMSTANCES OF THIS
CASE.  FOR ONE THING, I SHOULD THINK A PROCEEDING RESPECTING CONTROL OF
PANAGRA WOULD BE RATHER LOPSIDED UNLESS THE BOARD HAD JURISDICTION OF
GRACE; BUT I AM NOT SURE THAT COULD BE DONE.  SECTION 411 ONLY
PROSCRIBES UNFAIR METHODS OF COMPETITION BY AIR CARRIERS AND TICKET
AGENTS.  GRACE IS NEITHER, UNLESS IT FITS THE BROAD LANGUAGE IN WHICH
THE ACT DEFINES AN "AIR CARRIER" AS ANYONE "WHO UNDERTAKES, WHETHER
DIRECTLY OR INDIRECTLY OR BY A LEASE OR ANY OTHER ARRANGEMENT, TO
ENGAGE IN AIR TRANSPORTATION."  49 U.S.C. SEC. 1301(3).  IT IS NOT
ENTIRELY CLEAR THAT "AIR CARRIER" MAY BE READ AS INCLUDING A 50% OWNER
OF AN AIR CARRIER, FOR THE ACT IN GENERAL DOES NOT PURPORT TO REGULATE
STOCKHOLDERS OF ITS SUBJECT CARRIERS, AND WHERE IT DOES, NOTABLY IN
SEC. 408, IT DOES SO EXPLICITLY.  (FN6)  THE OPINION OF THE COURT SEES
FIT NOT TO RESOLVE THIS JURISDICTIONAL DIFFICULTY.  I FEAR THE BOARD
HAS SOLID JUSTIFICATION FOR NOT PROCEEDING AGAINST PAN AMERICAN UNLESS
IT CAN PROCEED AGAINST GRACE AS WELL.  BUT AT ALL EVENTS THE COURT'S
SILENCE IS SURE TO RESULT IN AN ADDED STEP IN THIS ALREADY INTOLERABLY
PROLONGED LITIGATION. 

A FURTHER BASIS FOR THE BOARD'S HESITANCY IS THAT THE BOARD HAS NO
EXPERIENCE IN THE ENFORCEMENT OF THE ANTITRUST LAWS, BECAUSE SEC. 411
HAS ONLY BEEN USED AGAINST COMMON-LAW UNFAIR COMPETITION, NEVER AGAINST
PRACTICES DEEMED UNFAIRLY COMPETITIVE BY VIRTUE OF THE ANTITRUST LAWS. 
HALE AND HALE, COMPETITION OR CONTROL IV: AIR CARRIERS, 109 U. OF PA.
L. REV. 311, 346-347 (1961).  (FN7)  MOST OF THE LEGAL ISSUES WHICH
HAVE ARISEN IN THE INSTANT LITIGATION - THE RIGHT OF A JOINT OWNER TO
EXERCISE HIS NEGATIVE CONTROL IN AN ANTICOMPETITIVE FASHION, THE
SUBSTANTIALITY OF THE COMMERCE RESTRAINED AS A RESULT OF THE
DEFENDANTS' CONDUCT, THE RELEVANT GEOGRAPHICAL AND SERVICES MARKETS,
THE APPROPRIATENESS OF DIVESTITURE AS A REMEDY, AND SO FORTH - ARE
TYPICAL ANTITRUST PROBLEMS AND NOT AT ALL TYPICAL AIRLINE LAW
PROBLEMS.  THE EXPERTNESS REQUIRED IS THAT OF THE JUDGE SKILLED IN
ANTITRUST ADJUDICATION - NOT THAT OF THE BOARD, WHICH, SO FAR AS I CAN
TELL, HAS NEVER DEALT WITH AN ANTITRUST PROBLEM. 

NOR IS REMISSION OF THE INSTANT CASE TO THE CAB NECESSARY TO PROTECT
THE INTEGRITY OF THE BOARD'S REGULATORY SCHEME FOR THE AIRLINE
INDUSTRY.  PAN AMERICAN ARGUES THAT IF ITS HOLDINGS IN PANAGRA ARE
DIVESTED, PANAGRA WILL APPLY FOR AND BE GRANTED TERMINAL POINTS IN THE
CONTINENTAL UNITED STATES, WITH THE RESULT THAT PAN AMERICAN WILL BE
DRIVEN OUT OF BUSINESS ON MANY ROUTES, TO THE SERIOUS DETRIMENT OF THE
AIRLINE INDUSTRY.  BUT THERE IS MORE TO ACQUIRING A ROUTE CERTIFICATE
THAN APPLYING FOR IT.  IF PANAGRA, FREED OF PAN AMERICAN'S NEGATIVE
CONTROL, APPLIES FOR A NORTHWARD EXTENSION OF ITS ROUTES, IT WILL BE
OPEN TO PAN AMERICAN TO ARGUE BEFORE THE BOARD THE UNWISDOM OF ITS
GRANTING THE APPLICATION.  A JUDICIAL ORDER IN THE INSTANT CASE WOULD
NOT AFFECT A SINGLE ROUTE, BUT WOULD SIMPLY FREE THE PROCESS WHEREBY
ROUTES ARE ESTABLISHED AND TERRITORIES ARE DIVIDED FROM THE OBSTRUCTIVE
EFFECTS OF MONOPOLISTIC TACTICS.  JUDICIAL ENFORCEMENT OF THE SHERMAN
ACT HERE WOULD THUS REMOVE THE CLOG OF MONOPOLIZATION FROM THE
ADMINISTRATIVE PROCESS - NOT DISRUPT THAT PROCESS.  CF. GEORGIA V.
PENNSYLVANIA R. CO., 324 U.S. 439.  THE COURT'S RELIANCE ON TEXAS &
PAC. R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, AND KEOGH V.
CHICAGO & N.W.R. CO., 260 U.S. 156, IS MISPLACED.   THE PLAINTIFF IN
KEOGH SOUGHT DAMAGES UNDER THE ANTITRUST LAWS, COMPLAINING THAT BUT FOR
THE CONSPIRACY THE RATES HE HAD PAID, THOUGH LAWFUL BECAUSE APPROVED BY
THE ICC, WOULD HAVE BEEN LOWER.  THE COURT HELD THAT THE EXCLUSIVE
REMEDY FOR EXCESSIVE RATES HAD BEEN VESTED BY CONGRESS IN THE ICC.   IT
DID NOT MATTER ON WHAT THEORY THE SHIPPER SOUGHT TO RECOVER; THE COURTS
HAD NO POWER TO UNDO A LAWFUL RATE BY GRANTING DAMAGES, WHETHER ON
COMMON-LAW GROUNDS (AS IN ABILENE) OR UNDER THE ANTITRUST LAWS.  THE
COURT IN KEOGH MADE VERY PLAIN, HOWEVER, THAT INJUNCTIVE RELIEF IN
RESPECT OF A CONSPIRACY TO RAISE RATES MIGHT LIE, AT LEAST IF SUCH
RELIEF WAS SOUGHT BY THE GOVERNMENT, AS HERE.  260 U.S., AT 161-162. 
FOR (AS GEORGIA SHOWS) AN INJUNCTION MAY BE GRANTED WITH NO DISTURBANCE
TO THE EXISTING RATE STRUCTURE. 

IT SHOULD ALSO BE NOTED THAT THE COURT'S DECISION TODAY VINDICATES
PAN AMERICAN'S HARDLY CREDITABLE "TACTIC  ...  CHARACTERISTIC OF ITS
LITIGIOUS NATURE" OF FIRST RAISING THE JURISDICTIONAL ISSUE IN A POST
TRIAL BRIEF FILED SIX YEARS AFTER THE COMPLAINT.  193 F. SUPP., AT 46. 
OF COURSE, WE ARE OBLIGED TO CONSIDER SUCH ISSUES SUA SPONTE.  UNITED
STATES V. WESTERN PACIFIC R. CO., 352 U.S. 59, 63; NOTE, REGULATED
INDUSTRIES AND THE ANTITRUST LAWS:  SUBSTANTIVE AND PROCEDURAL
COORDINATION, 58 COL. L. REV. 673, 690 AND N. 114 (1958).  BUT I FIND
IT A WRY COMMENTARY ON THE COURT'S RESULT THAT EVERY FACTOR OF FAIRNESS
AND PRACTICALITY ARGUES AGAINST OUR ABDICATING JURISDICTION OF THE
PRESENT CASE. 

                                             IV. 

IN SEEKING TO ACCOMMODATE THE REGULATORY AND ANTITRUST REGIMES BY
MEANS OF PRO TANTO REPEAL OF THE ANTITRUST LAWS, THE COURT DOES NOT
TELL US WHY IT HAS DEPARTED FROM THE USUAL PATTERN OF PREFERRING A MORE
FLEXIBLE TECHNIQUE OF ACCOMMODATION:  THAT AFFORDED BY THE DOCTRINE OF
PRIMARY JURISDICTION.  SEE GENERALLY 3 DAVIS, ADMINISTRATIVE LAW
(1958), 1-55.  THAT DOCTRINE REQUIRES THAT THE COURTS ABSTAIN FROM
PROCEEDING IN A CASE OF WHICH THEY HAVE ORIGINAL JURISDICTION,
REMITTING THE PARTIES IN THE FIRST INSTANCE TO THEIR RIGHTS AND
REMEDIES BEFORE THE AGENCY, WHERE NECESSARY TO PROTECT THE INTEGRITY OF
THE REGULATORY SCHEME ADMINISTERED BY THE AGENCY.  SUCH A REQUIREMENT
OF PRIOR RESORT DOES NOT PRECLUDE A LATER JUDICIAL ANTITRUST
PROCEEDING, BUT SIMPLY ENSURES THAT THE LATER PROCEEDING WILL FULLY
RECOGNIZE THE AGENCY'S INTEREST IN THE PREMISES.  THE ANTITRUST LAWS
ARE IN NO WISE REPEALED.  CF. FEDERAL MARITIME BD. V. ISBRANDTSEN CO.,
356 U.S. 481, 498-499.  THIS MODE OF RESOLVING CONFLICTS BETWEEN COURT
AND AGENCY AVOIDS THE PRACTICAL AND CONCEPTUAL DIFFICULTIES OF PRO
TANTO REPEALS BY IMPLICATION.  UNTIL TODAY, THE COURT HAD NEVER FAILED
TO INVOKE PRIMARY JURISDICTION IN PREFERENCE TO REPEAL BY IMPLICATION
AS A MEANS OF ACCOMMODATING THE ANTITRUST AND REGULATORY LAWS; I SEE NO
BASIS FOR DEVIATION IN THE INSTANT CASE FROM THAT SALUTARY APPROACH. 
CERTAINLY THE COURT SUGGESTS NONE. 

I MUST IN CANDOR ADD THAT TO APPLY THE DOCTRINE OF PRIMARY
JURISDICTION TO THE CASE AT BAR WOULD BE SOMEWHAT OF AN EXTENSION OF
OUR DECISIONS IN THE AREA, SO JEALOUSLY HAVE WE GUARDED THE OBLIGATION
OF JUDICIAL ENFORCEMENT OF THE ANTITRUST LAWS.  THE TENDENCY OF THE
CASES HAS BEEN TO INVOKE THE DOCTRINE NOT WHEN THERE ARE SIMPLY
OVERLAPPING JUDICIAL AND ADMINISTRATIVE REMEDIES FOR THE SAME CONDUCT,
AS IS THE CASE HERE, BUT ONLY WHEN "THERE IS A POSSIBILITY THAT A
SUBSEQUENT ADMINISTRATIVE DECISION WOULD APPROVE THE QUESTIONED
ACTIVITIES," AS IS NOT TRUE HERE, SINCE THE APPROVAL POWER VESTED IN
THE CAB BY SEC. 414 DOES NOT INCLUDE ORDERS UNDER SEC. 411.  SCHWARTZ,
LEGAL RESTRICTION OF COMPETITION IN THE REGULATED INDUSTRIES: AN
ABDICATION OF JUDICIAL RESPONSIBILITY, 67 HARV. L. REV. 436, 464
(1954).  COMPARE UNITED STATES NAV.  CO. V. CUNARD S.S. CO., 284 U.S.
474, AND FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570, WITH
UNITED STATES V. PACIFIC & ARCTIC RY. & NAV. CO., 228 U.S. 87; GEORGIA
V. PENNSYLVANIA R. CO., 324 U.S. 439; UNITED STATES V. RADIO CORP. OF
AMERICA, 358 U.S. 334; AND CALIFORNIA V. FEDERAL POWER COMM'N, 369 U.S.
482.  SEE GENERALLY JAFFE, PRIMARY JURISDICTION RECONSIDERED: THE ANTI
TRUST LAWS, 102 U. OF PA. L. REV. 577 (1954).  BUT EVEN IF IT WOULD
TAKE SOME STRAINING TO FIT THE INSTANT CASE WITHIN THE ESTABLISHED
FRAMEWORK OF THE LAW OF PRIMARY JURISDICTION, WHAT THE COURT HAS DONE
TODAY IS A FAR GRAVER DEPARTURE FROM HERETOFORE SETTLED GUIDEPOSTS OF
THE LAW.  (FN8) 

FN1  SEE T.I.M.E. INC. V. UNITED STATES, 359 U.S. 464, AND CASES
CITED THEREIN.  AT LEAST ONE FEDERAL COURT OF APPEALS HAS HELD THAT THE
CAB'S LACK OF POWER TO AWARD MONEY REPARATIONS LEAVES OPEN A COURT
ACTION FOR DAMAGES SOUNDING IN TORT.  FITZGERALD V. PAN AMERICAN WORLD
AIRWAYS, INC., 229 F.2D 499 (C.A.2D CIR. 1956). 

FN2  SEE UNITED STATES V. PACIFIC & ARCTIC RY. & NAV. CO., 228 U.S.
87, 107-108; GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439; KEOGH V.
CHICAGO & N.W.R. CO., 260 U.S. 156, 161-162; CENTRAL TRANSFER CO. V.
TERMINAL RAILROAD ASSN., 288 U.S. 469, 475; TERMINAL WAREHOUSE CO. V.
PENNSYLVANIA R. CO., 297 U.S. 500, 513-515.  THE COURT'S HANDLING OF
GEORGIA V. PENNSYLVANIA R. CO., SUPRA, SEEMS TO ME PARTICULARLY
DISINGENUOUS.  THE COURT CONCEDES THAT A CONSPIRACY TO SECURE CAB
APPROVAL OF ILLICIT AGREEMENTS MIGHT FORM THE PREDICATE OF AN ANTITRUST
SUIT, YET NOWHERE EXPLAINS WHY THE USE OF NEGATIVE CONTROL TO FURTHER A
SCHEME OF MONOPOLIZATION BY PREVENTING CAB APPROVAL OF A ROUTE
EXTENSION FOR PANAGRA CANNOT FORM SUCH A PREDICATE.  FURTHERMORE, IT IS
NOT THE CASE THAT THE ICC WAS HELPLESS TO GRANT THE RELIEF SOUGHT IN
GEORGIA V. PENNSYLVANIA R. CO. THE COURT CONCEDED THAT THE COMMISSION
HAD "AUTHORITY TO REMOVE DISCRIMINATORY RATES OF THE CHARACTER ALLEGED
TO EXIST HERE."  324 U.S., AT 459.  TO BE SURE, THE COMMISSION DID NOT
HAVE AUTHORITY TO REGULATE RATE-FIXING COMBINATIONS AS SUCH.  BUT
NEITHER HAS THE CAB AUTHORITY TO PROHIBIT VIOLATIONS OF THE ANTITRUST
LAWS AS SUCH; IT IS LIMITED BY ITS MANDATE, SO THE COURT HOLDS, TO
FACILITATING "COMPETITION TO THE EXTENT NECESSARY."    FN3  SEE UNITED
STATES V. PACIFIC & ARCTIC RY. & NAV. CO., 228 U.S. 87, 105; TERMINAL
WAREHOUSE CO. V. PENNSYLVANIA R. CO., 297 U.S. 500, 515. 

FN4  ON DECEMBER 16, 1941, GRACE FILED A PETITION WITH THE CAB
REQUESTING MODIFICATION OF PANAGRA'S CERTIFICATE SO AS TO PROVIDE FOR A
TERMINAL IN THE CONTINENTAL UNITED STATES; ON APRIL 29, 1942, GRACE
REQUESTED THE BOARD TO PROCEED UNDER SEC. 411 TO ORDER PAN AMERICAN TO
DIVEST ITSELF OF ITS HOLDINGS IN PANAGRA.  SEE W.R. GRACE & CO. V. CAB,
154 F.2D 271, 274 (C.A.2D CIR. 1946), CERT. DISMISSED FOR MOOTNESS SUB
NOM. PAN AMERICAN AIRWAYS CORP. V. W.R.  GRACE & CO., 332 U.S. 827. 

FN5  SEE PANAGRA TERMINAL INVESTIGATION, 4 C.A.B. 670, 678 (1944);
ADDITIONAL SERVICE TO LATIN AMERICA, 6 C.A.B. 857, 913-914 (1946); PAN
AMERICAN-PANAGRA AGREEMENT, 8 C.A.B. 50, 61 (1947); NEW YORK-BALBOA
THROUGH SERVICE PROCEEDING, REOPENED, 18 C.A.B. 501, 504-506 (1954);
REOPENED NEW YORK-BALBOA THROUGH SERVICE PROCEEDING, 20 C.A.B. 493, 516
517 (1954).  CF. NEW YORK-MEXICO CITY NONSTOP SERVICE CASE, 25 C.A.B.
323 (1957). 

FN6  FOR EXAMPLE: 

"IT SHALL BE UNLAWFUL UNLESS APPROVED BY ORDER OF THE BOARD AS
PROVIDED IN THIS SECTION: 

     *       *         *         *         * 

"(2) FOR ANY AIR CARRIER, ANY PERSON CONTROLLING AN AIR CARRIER, ANY
OTHER COMMON CARRIER, OR ANY PERSON ENGAGED IN ANY OTHER PHASE OF
AERONAUTICS, TO PURCHASE, LEASE, OR CONTRACT TO OPERATE THE PROPERTIES
...  OF ANY AIR CARRIER  ...  ."  49 U.S.C. SEC. 1378(A)(2). 

FN7  ALSO, ALTHOUGH THE CAB HAS EXPRESS AUTHORITY TO ENFORCE THE
CLAYTON ACT, SEE 15 U.S.C.  SEC. 21, I HAVE FOUND NO INSTANCE OF ITS
EVER HAVING ATTEMPTED TO DO SO. 

FN8  SINCE THE COURT DISPOSED OF THE CASE AT BAR ON JURISDICTIONAL
GROUNDS AND DID NOT REACH THE MERITS OF THE ANTITRUST ISSUES, I DEEM IT
INAPPROPRIATE FOR ME TO INTIMATE ANY VIEW OF THOSE MERITS. 
..END :























BEST V. HUMBOLDT PLACER MINING CO. 371 U.S. 334 


NO. 52.  ARGUED DECEMBER 10, 1962.  - DECIDED JANUARY 14, 1963.  - 293
F.2D 553, REVERSED. 


THE UNITED STATES SUED IN A FEDERAL DISTRICT COURT TO CONDEMN ANY
OUTSTANDING MINING CLAIMS ON CERTAIN PUBLIC LANDS NEEDED FOR THE
CONSTRUCTION OF A DAM, IN ORDER TO OBTAIN IMMEDIATE POSSESSION; AND THE
COMPLAINT ASKED THAT THE UNITED STATES BE ALLOWED TO RESERVE AUTHORITY
TO HAVE THE VALIDITY OF THE MINING CLAIMS DETERMINED IN ADMINISTRATIVE
PROCEEDINGS BEFORE THE BUREAU OF LAND MANAGEMENT OF THE DEPARTMENT OF
THE INTERIOR.  AFTER BEING GRANTED A WRIT OF POSSESSION, THE GOVERNMENT
INSTITUTED SUCH ADMINISTRATIVE PROCEEDINGS FOR A DETERMINATION AS TO
THE VALIDITY OF RESPONDENTS' UNPATENTED MINING CLAIMS.  RESPONDENTS
THEREUPON SUED TO ENJOIN CONDUCT OF THE ADMINISTRATIVE PROCEEDINGS; BUT
AN INJUNCTION WAS DENIED.  HELD:  INSTITUTION OF THE CONDEMNATION SUIT
IN THE DISTRICT COURT WAS AN APPROPRIATE WAY OF OBTAINING IMMEDIATE
POSSESSION; IT WAS NOT INCONSISTENT WITH THE ADMINISTRATIVE REMEDY FOR
DETERMINING THE VALIDITY OF THE MINING CLAIMS; AND THE DISTRICT COURT
ACTED PROPERLY IN HOLDING ITS HAND UNTIL THE ISSUE OF THE VALIDITY OF
THE MINING CLAIMS HAS BEEN RESOLVED BY THE AGENCY ENTRUSTED BY CONGRESS
WITH THAT TASK.  PP. 334-340. 

BEST ET AL. V. HUMBOLDT PLACER MINING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES SUED IN THE DISTRICT COURT TO CONDEMN CERTAIN
PROPERTY NEEDED FOR THE CONSTRUCTION OF THE TRINITY RIVER DAM AND
RESERVOIR IN CALIFORNIA, (FN1) TO OBTAIN IMMEDIATE POSSESSION OF IT,
AND TO SECURE TITLE TO IT, THE COMPLAINT ASKING THAT THE UNITED STATES
BE ALLOWED TO RESERVE AUTHORITY TO HAVE THE VALIDITY OF MINING CLAIMS
DETERMINED IN ADMINISTRATIVE PROCEEDINGS BEFORE THE BUREAU OF LAND
MANAGEMENT OF THE DEPARTMENT OF THE INTERIOR.  THE DISTRICT COURT
ALLOWED THE UNITED STATES A WRIT OF POSSESSION; BUT NO OTHER ISSUES IN
THE ACTION HAVE BEEN DETERMINED.  SEE 185 F. SUPP. 290. 

THE UNITED STATES LATER INSTITUTED A CONTEST PROCEEDING IN THE LOCAL
LAND OFFICE OF THE BUREAU SEEKING AN ADMINISTRATIVE DETERMINATION OF
THE VALIDITY OF RESPONDENTS' MINING CLAIMS (FN2) AND ALLEGED THAT THE
LAND EMBRACED WITHIN RESPONDENTS' CLAIMS IS NONMINERAL IN CHARACTER AND
THAT MINERALS HAVE NOT BEEN FOUND WITHIN THE LIMITS OF THE CLAIMS IN
SIFFICIENT QUANTITIES TO CONSTITUTE A VALID DISCOVERY.  RESPONDENTS,
WHO HAD 30 DAYS TO ANSWER TO ADMINISTRATIVE COMPLAINT OR HAVE THE
ALLEGATIONS TAKEN AS CONFESSED, (FN3) BROUGHT THE PRESENT SUIT TO
ENJOIN THE OFFICIALS OF THE DEPARTMENT OF THE INTERIOR FROM PROCEEDING
WITH THE ADMINISTRATIVE ACTION.  THE DISTRICT COURT GRANTED SUMMARY
JUDGMENT FOR THE UNITED STATES.  185 F. SUPP. 290.  THE COURT OF
APPEALS REVERSED, 293 F.2D 553.  THE CASE IS HERE ON A PETITION FOR
CERTIORARI WHICH WE GRANTED.  368 U.S. 983. 

WE DEAL HERE WITH A UNIQUE FORM OF PROPERTY.  A MINING CLAIM ON
PUBLIC LANDS IS A POSSESSORY INTEREST IN LAND THAT IS "MINERAL IN
CHARACTER" AND AS RESPECTS WHICH DISCOVERY "WITHIN THE LIMITS OF THE
CLAIM" HAS BEEN MADE.  CAMERON V. UNITED STATES, 252 U.S. 450, 456. 
THE DISCOVERY MUST BE OF SUCH A CHARACTER THAT "A PERSON OF ORDINARY
PRUDENCE WOULD BE JUSTIFIED IN THE FURTHER EXPENDITURE OF HIS LABOR AND
MEANS, WITH A REASONABLE PROSPECT OF SUCCESS, IN DEVELOPING A VALUABLE
MINE."  CASTLE V. WOMBLE, 19 L.D. 455, 457; CHRISMAN V. MILLER, 197
U.S. 313, 322; CAMERON V. UNITED STATES, SUPRA, P. 459.  A LOCATOR WHO
DOES NOT CARRY HIS CLAIM TO PATENT DOES NOT LOSE HIS MINERAL CLAIM,
THOUGH HE DOES TAKE THE RISK THAT HIS CLAIM WILL NO LONGER SUPPORT THE
ISSUANCE OF A PATENT.  UNITED STATES V. HOUSTON, 66 L.D. 161, 165.  IT
MUST BE SHOWN BEFORE A PATENT ISSUES THAT AT THE TIME OF THE
APPLICATION FOR PATENT "THE CLAIM IS VALUABLE FOR MINERALS," WORKED-OUT
CLAIMS NOT QUALIFYING.  UNITED STATES V. LOGOMARCINI, 60 L.D. 371,
373. 

RESPONDENTS' MINING CLAIMS ARE UNPATENTED, THE TITLE TO THE LANDS IN
CONTROVERSY STILL BEING IN THE UNITED STATES.  THE CLAIMS ARE, HOWEVER,
VALID AGAINST THE UNITED STATES IF THERE HAS BEEN A DISCOVERY OF
MINERAL WITHIN THE LIMITS OF THE CLAIM, IF THE LANDS ARE STILL MINERAL,
AND IF OTHER STATUTORY REQUIREMENTS HAVE BEEN MET.  (FN4)  CAMERON V.
UNITED STATES, SUPRA.  THE DETERMINATION OF THE VALIDITY OF CLAIMS
AGAINST THE PUBLIC LANDS WAS ENTRUSTED TO THE GENERAL LAND-OFFICE IN
1812 (2 STAT. 716) AND TRANSFERRED TO THE DEPARTMENT OF THE INTERIOR ON
ITS CREATION IN 1849.  9 STAT. 395.  (FN5)  SINCE THAT TIME, THE
DEPARTMENT HAS BEEN GRANTED PLENARY AUTHORITY OVER THE ADMINISTRATION
OF PUBLIC LANDS, INCLUDING MINERAL LANDS; AND IT HAS BEEN GIVEN BROAD
AUTHORITY TO ISSUE REGULATIONS CONCERNING THEM.  (FN6)  CAMERON V.
UNITED STATES, SUPRA - AN OPINION WRITTEN BY MR. JUSTICE VAN DEVANTER,
WHO, AS ASSISTANT ATTORNEY GENERAL FOR THE INTERIOR DEPARTMENT FROM
1897 TO 1903, DID MORE THAN ANY OTHER PERSON TO GIVE CHARACTER AND
DISTINCTION TO THE ADMINISTRATION OF THE PUBLIC LANDS - ILLUSTRATES THE
SPECIAL ROLE OF THE DEPARTMENT OF THE INTERIOR IN THAT FIELD.  CAMERON
CLAIMED A VALID MINERAL DISCOVERY ON PUBLIC LANDS.  HIS CLAIM WAS
REJECTED IN ADMINISTRATIVE PROCEEDINGS.  CAMERON, HOWEVER, WOULD NOT
VACATE THE LAND AND THE UNITED STATES SUED TO OUST HIM.  THE COURT
SAID:

"BY GENERAL STATUTORY PROVISIONS THE EXECUTION OF THE LAWS REGULATING
THE ACQUISITION OF RIGHTS IN THE PUBLIC LANDS AND THE GENERAL CARE OF
THESE LANDS IS CONFIDED TO THE LAND DEPARTMENT, AS A SPECIAL TRIBUNAL;
AND THE SECRETARY OF THE INTERIOR, AS THE HEAD OF THE DEPARTMENT, IS
CHARGED WITH SEEING THAT THIS AUTHORITY IS RIGHTLY EXERCISED TO THE END
THAT VALID CLAIMS MAY BE RECOGNIZED, INVALID ONES ELIMINATED, AND THE
RIGHTS OF THE PUBLIC PRESERVED  ...  . 

"A MINING LOCATION WHICH HAS NOT GONE TO PATENT IS OF NO HIGHER
QUALITY AND NO MORE IMMUNE FROM ATTACK AND INVESTIGATION THAN ARE
UNPATENTED CLAIMS UNDER THE HOMESTEAD AND KINDRED LAWS.  IF VALID, IT
GIVES TO THE CLAIMANT CERTAIN EXCLUSIVE POSSESSORY RIGHTS, AND SO DO
HOMESTEAD AND DESERT CLAIMS.   BUT NO RIGHT ARISES FROM AN INVALID
CLAIM OF ANY KIND.  ALL MUST CONFORM TO THE LAW UNDER WHICH THEY ARE
INITIATED; OTHERWISE THEY WORK AN UNLAWFUL PRIVATE APPROPRIATION IN
DEROGATION OF THE RIGHTS OF THE PUBLIC. 

"OF COURSE, THE LAND DEPARTMENT HAS NO POWER TO STRIKE DOWN ANY CLAIM
ARBITRARILY, BUT SO LONG AS THE LEGAL TITLE REMAINS IN THE GOVERNMENT
IT DOES HAVE POWER, AFTER PROPER NOTICE AND UPON ADEQUATE HEARING, TO
DETERMINE WHETHER THE CLAIM IS VALID AND, IF IT BE FOUND INVALID, TO
DECLARE IT NULL AND VOID."  252 U.S. 450, 459-460. 

"DUE PROCESS IN SUCH CASE IMPLIES NOTICE AND A HEARING.  BUT THIS
DOES NOT REQUIRE THAT THE HEARING MUST BE IN THE COURTS, OR FORBID AN
INQUIRY AND DETERMINATION IN THE LAND DEPARTMENT."  ORCHARD V.
ALEXANDER, 157 U.S. 372, 383.  IF A PATENT HAS NOT ISSUED,
CONTROVERSIES OVER THE CLAIMS" SHOULD BE SOLVED BY APPEAL TO THE LAND
DEPARTMENT AND NOT TO THE COURTS."  (FN7)  BROWN V. HITCHCOCK, 173 U.S.
473, 477.  AND SEE NORTHERN PACIFIC R. CO. V. MCCOMAS, 250 U.S. 387,
392. 

THE COURT OF APPEALS WROTE NOTHING IN DEROGATION OF THESE
PRINCIPLES.  IT CONCLUDED, HOWEVER, THAT SINCE THE UNITED STATES WENT
INTO THE DISTRICT COURT TO CONDEMN THESE PROPERTY INTERESTS AND TO GET
IMMEDIATE POSSESSION, THE VALIDITY OF THE CLAIMS WAS, OF NECESSITY,
LEFT TO JUDICIAL DETERMINATION.  ITS CONCLUSION RESTED PRIMARILY ON
RULE 71A OF THE FEDERAL RULES OF CIVIL PROCEDURE.  THAT RULE, AFTER
DESCRIBING THE WAY IN WHICH THE ISSUE OF COMPENSATION SHALL BE
DETERMINED, CONCLUDES WITH THE SENTENCE "TRIAL OF ALL ISSUES SHALL
OTHERWISE BE BY THE COURT." 

YET COURTS THAT TRY ISSUES SOMETIMES WAIT UNTIL THE ADMINISTRATIVE
AGENCY THAT HAS SPECIAL COMPETENCE IN THE FIELD HAS RULED ON THEM.  THE
CONTROVERSIES WITHIN THE COURT OVER THE APPROPRIATENESS OF THAT
PROCEDURE IN GIVEN SITUATIONS IS WELL KNOWN, THOUGH THERE IS NO DISPUTE
OVER THE SOUNDNESS OF THE ABILENE DOCTRINE, ADUMBRATED BY CHIEF JUSTICE
WHITE IN TEXAS & PAC. R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426. 
IT IS DIFFICULT TO IMAGINE A MORE APPROPRIATE CASE FOR INVOCATION OF
THE JURISDICTION OF AN ADMINISTRATIVE AGENCY FOR DETERMINATION OF ONE
OF THE ISSUES INVOLVED IN A JUDICIAL PROCEEDING.  CF. THOMPSON V.
MAGNOLIA PETROLEUM CO., 309 U.S. 478; THOMPSON V. TEXAS MEXICAN R. CO.,
328 U.S. 134, 146-151.  CONGRESS HAS ENTRUSTED THE DEPARTMENT OF THE
INTERIOR WITH THE MANAGEMENT OF THE PUBLIC DOMAIN AND PRESCRIBED THE
PROCESS BY WHICH CLAIMS AGAINST THE PUBLIC DOMAIN MAY BE PERFECTED. 
(FN8)  THE UNITED STATES, WHICH HOLDS LEGAL TITLE TO THE LANDS, PLAINLY
CAN PRESCRIBE THE PROCEDURE WHICH ANY CLAIMANT MUST FOLLOW TO ACQUIRE
RIGHTS IN THE PUBLIC SECTOR. 

RESPONDENTS PROTEST, SAYING THAT IF THEY ARE REMITTED TO THE
ADMINISTRATIVE PROCEEDING, THEY WILL SUFFER DISADVANTAGES IN THAT THE
PROCEDURES BEFORE THE DISTRICT COURT ARE MUST LESS ONEROUS ON CLAIMANTS
THAN THOSE BEFORE THE DEPARTMENT OF THE INTERIOR.  (FN9)  WE EXPRESS NO
VIEWS ON THOSE CONTENTIONS, AS EACH OF THEM CAN APPROPRIATELY BE RAISED
IN THE ADMINISTRATIVE PROCEEDINGS AND RESERVED FOR JUDICIAL REVIEW. 

THE UNITED STATES IS NOT FORECLOSED FROM INSISTING ON RESORT TO THE
ADMINISTRATIVE PROCEEDINGS FOR A DETERMINATION OF THE VALIDITY OF THOSE
CLAIMS.  IT MAY TAKE PROPERTY PURSUANT TO ITS POWER OF EMINENT DOMAIN,
EITHER BY ENTERING INTO PHYSICAL POSSESSION OF THE PROPERTY WITHOUT A
COURT ORDER, OR BY INSTITUTING CONDEMNATION PROCEEDINGS UNDER VARIOUS
ACTS OF CONGRESS.  UNITED STATES V. DOW, 357 U.S. 17, 21.  TITLE TO THE
PROPERTY PASSES LATER, THOUGH THE ENTRY INTO POSSESSION MARKS THE
TAKING, GIVES RISE TO THE CLAIM FOR COMPENSATION, AND FIXES THE DATE AS
OF WHICH THE PROPERTY IS TO BE VALUED.  ID., P. 22.  INSTITUTION OF
SUIT IS ONE WAY TO OBTAIN IMMEDIATE POSSESSION; AND WE SEE NOTHING
INCOMPATIBLE BETWEEN THE USE OF THAT MEANS TO OBTAIN POSSESSION AND THE
USE OF THE ADMINISTRATIVE PROCEEDINGS TO DETERMINE TITLE.  CF. UNITED
STATES V. 93.970 ACRES, 360 U.S. 328.  NO PURPOSE WOULD BE SERVED BY
FORCING THE UNITED STATES TO ABANDON THAT ORDERLY PROCEDURE IN FAVOR OF
PHYSICAL SEIZURE, LEAVING THE CLAIMANT TO A SUIT UNDER THE TUCKER ACT. 
SEE UNITED STATES V. DOW, SUPRA, P. 21. 

WE CONCLUDE THAT THE INSTITUTION OF THE SUIT IN THE DISTRICT COURT
WAS AN APPROPRIATE WAY OF OBTAINING IMMEDIATE POSSESSION, THAT IT WAS
NOT INCONSISTENT WITH THE ADMINISTRATIVE REMEDY FOR DETERMINING THE
VALIDITY OF THE MINING CLAIMS, AND THAT THE DISTRICT COURT ACTED
PROPERLY IN HOLDING ITS HAND UNTIL THE ISSUE OF THE VALIDITY OF THE
CLAIMS HAS BEEN RESOLVED BY THE AGENCY ENTRUSTED BY CONGRESS WITH THE
TASK.  REVERSED. 

FN1  SEE S. DOC. NO. 113, 81ST CONG., 1ST SESS. 120, STATING THAT THE
PROJECT WILL REQUIRE 10,000 ACRES. 

FN2  SEE APPEALS AND CONTESTS REGULATION OF THE BUREAU OF LAND
MANAGEMENT, 43 CFR, 1962 SUPP., SEC. 221.67. 

FN3  ID., SEC. 221.64. 

FN4  30 U.S.C. SECS. 21, 22, 26; GENERAL MINING REGULATION OF THE
BUREAU OF LAND MANAGEMENT, 43 CFR SECS. 185.1-185.3. 

FN5  SEE 5 U.S.C. SEC. 485; 43 U.S.C. SEC. 2. 

FN6  SEE 30 U.S.C. SEC. 22, 43 U.S.C. SEC. 1201. 

FN7  CLAIMANTS TODAY MAY APPEAL THE EXAMINER'S DECISION TO THE
DIRECTOR OF THE BUREAU (43 CFR, 1962 SUPP., SEC. 221.1), FROM HIM TO
THE SECRETARY (ID., SEC. 221.31), AND FROM THERE TO THE COURTS. 
FOSTER V. SEATON, 271 F.2D 836. 

FN8  WE ARE TOLD THAT NINE HEARING EXAMINERS ARE ASSIGNED TO MINING
CLAIM CASES, THAT MINING CLAIMS COMPRISE FROM 75% TO 85% OF THEIR
HEARINGS, AND THAT IN THE FISCAL YEAR 1960-1961, 322 MINING-LAW CASES
(INVOLVING 1,162 SEPARATE CLAIMS) WERE BROUGHT BEFORE THE HEARING
EXAMINERS.  OF THESE, 81 CASES (343 CLAIMS) WERE CLOSED ON PROCEDURAL
GROUNDS WITHOUT A HEARING; IN 241 CASES (INVOLVING 819 CLAIMS),
HEARINGS ON THE MERITS WERE HELD AND DECISIONS RENDERED BY THE HEARING
EXAMINER; IN 90 OF THESE CASES, APPEALS WERE TAKEN TO THE DIRECTOR OF
THE BUREAU OF LAND MANAGEMENT. 

IN THE FISCAL YEAR 1961 THERE WERE A TOTAL OF 27,228 MINING-CLAIM
ADJUDICATION CASES CLOSED DURING THE YEAR.  THESE INCLUDED 7,457 TITLE
TRANSFER CASES (E.G., PATENT APPLICATIONS AND LAND-DISPOSITION
CONFLICTS), AND APPROXIMATELY 20,000 MINING-CLAIM INVESTIGATIONS BY THE
BUREAU'S MINING ENGINEERS FOR THE PURPOSE OF DETERMINING VALIDITY OR
INVALIDITY.  SEE ANNUAL REPORT, DIRECTOR, BUREAU OF LAND MANAGEMENT,
1961, PT. 4, PP. 86-120 (STATISTICAL APPENDIX). 

FN9  RESPONDENTS SAY (1) THAT THE DISTRICT COURT VALUE WOULD BE
DETERMINED AS OF THE TIME OF THE TAKING, WHILE BEFORE THE AGENCY VALUE
IS DETERMINED AS OF THE DATE OF THE HEARING BEFORE THE EXAMINER; (2)
THAT THE STRICTURES ON PROOF OF "DISCOVERY" IN THE ADMINISTRATIVE
PROCEEDINGS ARE SO GREAT THAT THEY COULD NOT BE SATISFIED UNLESS THE
TRINITY BASIN RESERVOIR WERE DRAINED; (3) THAT IN THE DISTRICT COURT
VALUE COULD BE ESTABLISHED BY A SHOWING OF VALUABLE DEPOSITS OF GOLD,
WHILE BEFORE THE EXAMINER A CLAIM COULD BE ESTABLISHED ONLY ON PROOF
THAT MINES WERE ACTUALLY OPERATING AT A PROFIT. 
..END :


















SHOTWELL MANUFACTURING CO. V. UNITED STATES 371 U.S. 341 


NO. 16.  ARGUED OCTOBER 11, 15, 1962.  - DECIDED JANUARY 14, 1963.  -
287 F.2D 667, AFFIRMED. 


IN A JURY TRIAL IN A FEDERAL DISTRICT COURT, PETITIONERS WERE
CONVICTED IN 1953 OF WILLFULLY ATTEMPTING TO EVADE FEDERAL CORPORATE
INCOME TAXES.  THEY CLAIM THAT THEIR PRIVILEGE AGAINST SELF
INCRIMINATION WAS VIOLATED BY THE ADMISSION OF EVIDENCE OBTAINED AS A
RESULT OF VOLUNTARY DISCLOSURES MADE BY THEM IN GOOD FAITH IN RELIANCE
UPON THE TREASURY'S THEN "VOLUNTARY DISCLOSURE POLICY," I.E., THAT
DELINQUENT TAXPAYERS COULD ESCAPE POSSIBLE CRIMINAL PROSECUTION BY
DISCLOSING THEIR DERELICTIONS TO THE TAX AUTHORITIES BEFORE ANY
INVESTIGATION OF THEM HAD COMMENCED.  AFTER REMAND BY THIS COURT, 255
U.S. 233, THE DISTRICT COURT HELD AN ADDITIONAL FULL EVIDENTIARY
HEARING AND AGAIN DENIED SUPPRESSION OF SUCH EVIDENCE, FINDING THAT "NO
HONEST BONA FIDE VOLUNTARY DISCLOSURE" HAD EVER BEEN MADE AND THAT
FRAUD HAD "PERMEATED" PETITIONERS' DISCLOSURE SHOWING AT BOTH
SUPPRESSION HEARINGS AND AT THE TRIAL.  THE DISTRICT COURT ALSO DENIED
MOTIONS FOR A NEW TRIAL AND OVERRULED CHALLENGES, MADE FOR THE FIRST
TIME IN 1957, TO THE ORIGINAL GRAND JURY AND PETIT JURY ARRAYS.  THE
COURT OF APPEALS SUSTAINED THESE FINDINGS AND RULINGS, OVERRULED OTHER
CHALLENGES TO THE REMAND AND ORIGINAL TRIAL PROCEEDINGS, AND AFFIRMED
THE CONVICTIONS.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 343-367. 

1.  IN VIEW OF THE FACTS THAT NO BONA FIDE HONEST DISCLOSURE EVER HAD
BEEN MADE IN RELIANCE ON THE "VOLUNTARY DISCLOSURE POLICY" AND THAT THE
PURPORTED DISCLOSURE WAS A FURTHER EFFORT TO PERPETRATE A FRAUD ON THE
GOVERNMENT, ADMISSION OF THE EVIDENCE SO OBTAINED DID NOT VIOLATE
PETITIONERS' PRIVILEGE AGAINST SELF-INCRIMINATION.  PP. 346-352. 

(A)  REJECTED AS SPECIOUS IS PETITIONERS' SUGGESTION THAT THE
DISTRICT COURT'S FINDING OF FRAUD IF INFIRM BECAUSE THE FALSITY OF
SHOTWELL'S BLACK-MARKET PAYMENTS, ON WHICH THAT FINDING PRINCIPALLY
RESTED, WAS AN IMMATERIAL CONSIDERATION IN VIEW OF THE COMMISSIONER'S
THEN RULING THAT BLACK-MARKET PAYMENTS WERE NOT INCLUDIBLE IN THE COST
OF GOODS SOLD.  PP. 346-347. 

(B)  THE TREASURY'S "VOLUNTARY DISCLOSURE" POLICY, ADDRESSED TO THE
PUBLIC GENERALLY AND NOT TO PARTICULAR INDIVIDUALS, WAS NOT AN
INVITATION AIMED AT EXTRACTING CONFESSIONS OF GUILT FROM PARTICULAR
KNOWN OR SUSPECTED DELINQUENT TAXPAYERS, AND THE PRIVILEGE AGAINST SELF
INCRIMINATION DOES NOT APPLY TO DISCLOSURES MADE IN RELIANCE ON THAT
POLICY.  PP. 347-349. 

(C)  EVEN IF PETITIONERS HAD BEEN INITIALLY JUSTIFIED IN RELYING ON
THE TREASURY'S GENERAL OFFER OF IMMUNITY, THEY WERE NO LONGER ENTITLED
TO RELY UPON IT WHEN THEY DECIDED TO MAKE A FRAUDULENT DISCLOSURE.  PP.
349-350. 

(D)  WHAT IS INVOLVED HERE IS NOT A CASE OF INCRIMINATORY EVIDENCE
HAVING BEEN INDUCED BY THE GOVERNMENT, BUT ONE IN WHICH PETITIONERS
ATTEMPTED TO HOODWINK THE GOVERNMENT INTO WHAT WOULD HAVE BEEN A
FLAGRANT MISAPPLICATION OF ITS VOLUNTARY DISCLOSURE POLICY.  P. 352. 

2.  THE RECORD DOES NOT SUPPORT PETITIONERS' CONTENTION THAT THE
DISTRICT COURT SHOULD HAVE ORDERED A NEW TRIAL BECAUSE IT APPEARED AT
THE SECOND SUPPRESSION HEARING THAT AN IMPORTANT GOVERNMENT WITNESS HAD
TESTIFIED FALSELY AT THE TRIAL RESPECTING THE AMOUNT OF HIS BLACK
MARKET PAYMENTS TO THE CORPORATE PETITIONER.  PP. 352-357. 

3.  THERE IS NO TRUTH IN PETITIONERS' CHARGES THAT THE REMAND
PROCEEDINGS WERE THE PRODUCT OF FRAUD AND OTHER GROSS IMPROPRIETIES ON
THE PART OF THE GOVERNMENT AND THAT THEY SHOULD, THEREFORE, BE HELD FOR
NAUGHT.  PP. 357-361. 

4.  THE TWO LOWER COURTS CORRECTLY HELD THAT PETITIONERS' MOTIONS
ATTACKING THE GRAND AND PETIT JURY ARRAYS, FILED MORE THAN FOUR YEARS
AFTER THE TRIAL, WERE UNTIMELY UNDER FEDERAL RULE OF CRIMINAL PROCEDURE
12(B)(2); AND THEIR FURTHER FINDING THAT PETITIONERS WERE NOT
PREJUDICED IN ANY WAY BY THE ALLEGED ILLEGALITIES IN THE SELECTION OF
THE JURIES SUPPORTS THE CONCLUSION THAT A SUFFICIENT SHOWING HAD NOT
BEEN MADE TO WARRANT RELIEF FROM THE EFFECT OF THAT RULE.  PP. 361
364. 

5.  THE RECORD DOES NOT SUSTAIN THE CONTENTION OF PETITIONER SULLIVAN
THAT HE WAS DENIED A FAIR TRIAL BECAUSE (1) THE ONLY SPECIFIC EVIDENCE
AGAINST HIM WAS AN ALLEGED ADMISSION WHICH A GOVERNMENT WITNESS
TESTIFIED SULLIVAN HAD MADE TO HIM, AND THE GOVERNMENT WITNESS HAD
LATER RECANTED THAT TESTIMONY; AND (2) THE TRIAL JUDGE'S INSTRUCTIONS
ALLOWED THE JURY TO CONSIDER EVIDENCE THAT HAD NOT BEEN ADMITTED
AGAINST HIM.  PP. 364-367. 

(A)  THERE WAS AMPLE EVIDENCE IN THE RECORD TO CARRY THE CASE AGAINST
SULLIVAN TO THE JURY AND TO SUPPORT ITS VERDICT OF GUILT.  PP. 364
365. 

(B)  THERE WAS NO ERROR IN THE TRIAL JUDGE'S INSTRUCTIONS TO THE JURY
THAT CERTAIN EVIDENCE WAS NOT BEING ADMITTED AGAINST SULLIVAN AND
SHOULD NOT BE CONSIDERED AGAINST HIM, AND IT MUST BE PRESUMED THAT THE
JURY CONSCIENTIOUSLY OBSERVED SUCH INSTRUCTIONS.  PP. 365-367. 

SHOTWELL MANUFACTURING CO. ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE FOR THE SECOND TIME IN CONSEQUENCE OF THE REMAND
THAT WAS ORDERED AT THE 1957 TERM.  UNITED STATES V. SHOTWELL MFG. CO.,
355 U.S. 233. 

IN 1953 PETITIONERS WERE CONVICTED AFTER A JURY TRIAL IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS OF WILLFUL
ATTEMPTED EVASION OF FEDERAL INCOME TAXES OF THE SHOTWELL MANUFACTURING
COMPANY FOR THE YEARS 1945 AND 1946.  INT. REV. CODE OF 1939, SEC.
145(B), 53 STAT. 63.  THE INDIVIDUAL PETITIONERS, CAIN AND SULLIVAN,
WERE OFFICERS OF SHOTWELL, A CANDY MANUFACTURER.   THE CHARGE WAS THAT
THE COMPANY'S TAX RETURNS FOR THESE YEARS HAD NOT REPORTED SUBSTANTIAL
INCOME, RECEIVED FROM ONE LUBBEN, ON SALES OF CANDY ABOVE OPA (OFFICE
OF PRICE ADMINISTRATION) CEILING PRICES - SO-CALLED BLACK-MARKET
SALES. 

ON APPEAL THE CONVICTIONS WERE REVERSED AND A NEW TRIAL ORDERED BY A
DIVIDED COURT OF APPEALS ON THE GROUND THAT THE DISTRICT COURT SHOULD
HAVE ORDERED SUPPRESSED CERTAIN EVIDENCE, USED AT THE TRIAL, WHICH
PETITIONERS HAD FURNISHED THE GOVERNMENT IN RELIANCE ON THE TREASURY'S
THEN "VOLUNTARY DISCLOSURE POLICY."  225 F.2D 394.  IN SUBSTANCE THAT
POLICY AMOUNTED TO A REPRESENTATION BY THE TREASURY THAT DELINQUENT
TAXPAYERS COULD ESCAPE POSSIBLE CRIMINAL PROSECUTION BY DISCLOSING
THEIR DERELICTIONS TO THE TAXING AUTHORITIES BEFORE ANY INVESTIGATION
OF THEM HAD COMMENCED.  SEE 355 U.S., AT 235, NOTE 2; PP. 348-352,
INFRA. 

THE EVIDENCE HELD SUBJECT TO SUPPRESSION CONSISTED OF TABULATIONS
PURPORTING TO SHOW THE AMOUNT OF UNREPORTED BLACK-MARKET INCOME
RECEIVED BY SHOTWELL FROM LUBBEN DURING THE TWO TAX YEARS IN QUESTION,
AND OFFSETTING BLACK-MARKET PAYMENTS BY SHOTWELL FOR THE PURCHASE OF
RAW MATERIALS WHICH ALMOST MATCHED THE BLACK-MARKET RECEIPTS. 
CONCLUDING THAT PETITIONERS' DISCLOSURE HAD BEEN A GENUINE ONE
(CONTRARY TO THE DISTRICT COURT'S FINDING) AND THAT IT HAD BEEN MADE
BEFORE ANY INVESTIGATION OF SHOTWELL'S TAX RETURNS HAD STARTED AND WAS
THUS TIMELY (A QUESTION NOT REACHED BY THE DISTRICT COURT, 355 U.S., AT
236), THE COURT OF APPEALS HELD THAT THE DISCLOSURE WAS VALID AND THAT
THE GOVERNMENT COULD NOT, CONSISTENTLY WITH THE FIFTH AMENDMENT, USE
THE DISCLOSED MATERIAL AT PETITIONERS' TRIAL. 

THE MATTER THEN CAME HERE FOR REVIEW ON THE GOVERNMENT'S PETITION FOR
CERTIORARI, DURING THE PENDENCY OF WHICH THE THEN SOLICITOR GENERAL
MOVED TO REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
ON THE SUPPRESSION ISSUE - AN ISSUE WHICH BOTH SIDES RECOGNIZED HAD
PROPERLY BEEN ONE FOR THE COURT AND NOT FOR THE JURY.  355 U.S., AT
244; SEE UNITED STATES V. LUSTIG, 163 F.2D 85, 88-89, CERT. DENIED, 332
U.S. 775.  THE MOTION WAS BASED ON THE CLAIM THAT NEWLY DISCOVERED
EVIDENCE IN POSSESSION OF THE GOVERNMENT WOULD SHOW THAT THE COURT OF
APPEALS' DECISION AS TO THE BONA FIDES AND TIMELINESS OF THE ALLEGED
DISCLOSURE WAS THE PRODUCT OF A TAINTED RECORD, INVOLVING AN ATTEMPT ON
THE PART OF THESE PETITIONERS "TO PERPETRATE A FRAUD UPON THE COURTS." 
355 U.S., AT 241.  WITHOUT REACHING ANY OF THE QUESTIONS DECIDED BY THE
COURT OF APPEALS WE VACATED THE JUDGMENT OF THAT COURT AND REMANDED THE
CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO REEXAMINE THE
DISCLOSURE EPISODE IN LIGHT OF THE PARTIES' ADDITIONAL EVIDENCE AND
THAT ALREADY IN THE RECORD, TO DECIDE ANEW THE SUPPRESSION ISSUE, AND
DEPENDING UPON ITS DECISION TO ENTER A NEW JUDGMENT OF CONVICTION OR AN
ORDER FOR A NEW TRIAL, AS THE CASE MIGHT BE.  355 U.S., AT 245-246. 

THE DISTRICT COURT, AFTER A FULL EVIDENTIARY HEARING, AGAIN DENIED
SUPPRESSION, FINDING THAT "NO HONEST BONA FIDE VOLUNTARY DISCLOSURE"
HAD EVER BEEN MADE AND THAT FRAUD HAD "PERMEATED" THE PETITIONERS'
DISCLOSURE SHOWING AT BOTH SUPPRESSION HEARINGS AND AT THE TRIAL. 
(FN1)  THESE ULTIMATE FINDINGS RESTED PRIMARILY ON SUBSIDIARY FINDINGS
THAT ALTHOUGH SHOTWELL'S BLACK-MARKET RECEIPTS HAD NOT IN THEMSELVES
BEEN MISREPRESENTED, THE CLAIM THAT THEY HAD BEEN ALMOST ENTIRELY
OFFSET BY PAYMENTS FOR THE PURPORTED PURCHASE OF BLACK-MARKET SUPPLIES
WAS FALSE - THE TRUTH BEING (CONTRARY TO WHAT PETITIONERS CAIN AND
SULLIVAN HAD TESTIFIED IN THE EARLIER PROCEEDINGS) THAT MOST OF
SHOTWELL'S BLACK-MARKET RECEIPTS, "TOTALING BETWEEN THREE AND FOUR
HUNDRED THOUSAND DOLLARS," HAD FOUND THEIR WAY INTO THE POCKETS OF
CAIN, SULLIVAN AND HUEBNER, ALL SHOTWELL OFFICERS.  THE DISTRICT COURT
ALSO DENIED MOTIONS FOR A NEW TRIAL AND OVERRULED CHALLENGES, MADE FOR
THE FIRST TIME IN JULY 1957, TO THE ORIGINAL GRAND AND PETIT JURY
ARRAYS. 

THE COURT OF APPEALS, SUSTAINING THESE FINDINGS AND RULINGS (FN2) AND
OVERRULING OTHER CHALLENGES TO THE REMAND AND ORIGINAL TRIAL
PROCEEDINGS, HAS NOW AFFIRMED THESE CONVICTIONS, 287 F.2D 667.  THE
CASE IS AGAIN BEFORE US ON CERTIORARI.  368 U.S. 946.  WE AFFIRM THE
JUDGMENT BELOW. 

                                              I. 

THE PRINCIPAL CONTENTION IS THAT NOTWITHSTANDING THE FINDING THAT
SHOTWELL'S DISCLOSURE OF BLACK-MARKET RECEIPTS WAS FRAUDULENTLY
CONTRIVED, THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT BARRED
THE GOVERNMENT'S TRIAL USE OF ANY OF THE DISCLOSED MATERIAL.  (FN3) 

PRELIMINARILY WE REJECT AS SPECIOUS PETITIONERS' SUGGESTION THAT THE
DISTRICT COURT'S FINDING OF FRAUD IS INFIRM BECAUSE THE FALSITY OF
SHOTWELL'S BLACK-MARKET PAYMENTS, ON WHICH THAT FINDING PRINCIPALLY
RESTED, WAS AN IMMATERIAL CONSIDERATION IN VIEW OF THE COMMISSIONER'S
THEN RULING THAT BLACK-MARKET PAYMENTS WERE NOT INCLUDIBLE IN THE COST
OF GOODS SOLD - IN OTHER WORDS, THAT SHOTWELL'S TAX LIABILITY WOULD
HAVE REMAINED THE SAME WHETHER OR NOT SUCH EXPENDITURES WERE TRUTHFULLY
REPRESENTED.  (FN4)  THE FACT IS THAT AT THE TIME THE DISCLOSURE WAS
MADE THE COMMISSIONER'S RULING WAS EVEN THEN IN LITIGATION, AND SOME
SIX MONTHS THEREAFTER WAS REJECTED BY THE TAX COURT, SULLENGER V.
COMMISSIONER, 11 T.C. 1076, AS IT ALSO WAS LATER BY SEVERAL OF THE
COURTS OF APPEALS.  SEE COMMISSIONER V. WEISMAN, 197 F.2D 221 (C.A. 1ST
CIR.); COMMISSIONER V. GUMINSKI, 198 F.2D 265 (C.A. 5TH CIR.);
COMMISSIONER V. GENTRY, 198 F.2D 267 (C.A. 5TH CIR.); JONES V. HERBER,
198 F.2D 544 (C.A. 10TH CIR.). 

INDEED, THE RECORD HERE SHOWS THAT PETITIONERS, DESPITE THE
ADMINISTRATIVE RULING, ATTEMPTED TO NEGOTIATE A SETTLEMENT REFLECTING A
SUBSTANTIAL ALLOWANCE OF SUCH EXPENDITURES, AND THAT IN MAKING THEIR
DISCLOSURE THEY RESERVED THE RIGHT TO CONTEST THE RULING BY WAY OF A
SUIT FOR REFUND, IN WHOLE OR IN PART, OF THE ADDITIONAL TAXES TO BE
ASSESSED IN RESPECT OF THE UNREPORTED BLACK-MARKET INCOME.   BEYOND
THIS, HAD PETITIONERS BEEN ABLE TO CONVINCE THE TREASURY THAT
SHOTWELL'S FAILURE TO REPORT THE BLACK-MARKET RECEIPTS HAD BEEN DUE TO
AN HONEST, THOUGH MISTAKEN, BELIEF THAT SUCH INCOME COULD BE OFFSET BY
BLACK-MARKET EXPENDITURES, IT MIGHT WELL HAVE BORNE IMPORTANTLY ON
THEIR LIABILITY FOR CIVIL FRAUD PENALTIES.  INT. REV. CODE, 1939, SEC.
293(B).  (FN5)  IN SHORT, IN MAKING THEIR SUPPRESSION CONTENTION
PETITIONERS CANNOT ESCAPE THE CONSEQUENCES OF THE FINDING THAT THEIR
DISCLOSURE WAS FRAUDULENT. 

IT IS OF COURSE A CONSTITUTIONAL PRINCIPLE OF LONG STANDING THAT THE
PROSECUTION "MUST ESTABLISH GUILT BY EVIDENCE INDEPENDENTLY AND FREELY
SECURED AND MAY NOT BE COERCION PROVE ITS CHARGE AGAINST AN ACCUSED OUT
OF HIS OWN MOUTH."  ROGERS V. RICHMOND, 365 U.S. 534, 541.  WE HAVE NO
HESITATION IN SAYING THAT THIS PRINCIPLE ALSO REACHES EVIDENCE OF GUILT
INDUCED FROM A PERSON UNDER A GOVERNMENTAL PROMISE OF IMMUNITY, AND
WHERE THAT IS THE CASE SUCH EVIDENCE MUST BE EXCLUDED UNDER THE SELF
INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT.  SEE BRAM V. UNITED
STATES, 168 U.S. 532, 542-543; HARDY V. UNITED STATES, 186 U.S. 224,
229; WAN V. UNITED STATES, 266 U.S. 1, 14; SMITH V. UNITED STATES, 348
U.S. 147, 150.  THE CONTROLLING TEST IS THAT APPROVED IN BRAM:  "'A
CONFESSION, IN ORDER TO BE ADMISSIBLE, MUST BE FREE AND VOLUNTARY:
THAT IS,  ...  NOT  ...  OBTAINED BY ANY DIRECT OR IMPLIED PROMISES,
HOWEVER SLIGHT  ...  .'"  BRAM V. UNITED STATES, SUPRA, AT 542-543. 
EVIDENCE SO PROCURED CAN NO MORE BE REGARDED AS THE PRODUCT OF A FREE
ACT OF THE ACCUSED THAN THAT OBTAINED BY OFFICIAL PHYSICAL OR
PSYCHOLOGICAL COERCION.  BUT IN THIS INSTANCE WE FIND NOTHING IN THE
CIRCUMSTANCES UNDER WHICH THE CHALLENGED EVIDENCE WAS PROCURED THAT
WOULD RUN AFOUL OF THESE JEALOUSLY GUARDED CONSTITUTIONAL PRINCIPLES. 

A COERCED CONFESSION CLAIM, WHETHER FOUNDED ON A PROMISE OF IMMUNITY
OR OTHERWISE, ALWAYS INVOLVES THIS QUESTION:  DID THE GOVERNMENTAL
CONDUCT COMPLAINED OF "BRING ABOUT" A CONFESSION "NOT FREELY SELF
DETERMINED"?  ROGERS V. RICHMOND, SUPRA, AT 544.  UNDER ANY TENABLE
VIEW OF THE PRESENT SITUATION WE THINK IT CLEARLY DID NOT. 

THE INAPPLICABILITY HERE OF THE CONSTITUTIONAL PRINCIPLES RELIED ON
BY PETITIONERS INHERES IN BOTH THE ESSENTIAL CHARACTER OF THIS OFFER OF
IMMUNITY AND THE PARTICULAR RESPONSE OF THESE PETITIONERS TO THAT
OFFER.  THE OFFER WAS NOTHING MORE THAN PART OF A BROAD ADMINISTRATIVE
POLICY DESIGNED TO ACCOMPLISH THE EXPEDITIOUS AND ECONOMICAL COLLECTION
OF REVENUE BY ENLISTING TAXPAYER COOPERATION IN CLEARING UP AS YET
UNDETECTED UNDERPAYMENTS OF TAXES, THEREBY AVOIDING THE DELAYS AND
EXPENSE OF INVESTIGATION AND LITIGATION.  THE TREASURY'S "VOLUNTARY
DISCLOSURE POLICY," ADDRESSED TO THE PUBLIC GENERALLY AND NOT TO
PARTICULAR INDIVIDUALS, WAS NOT AN INVITATION AIMED AT EXTRACTING
CONFESSIONS OF GUILT FROM PARTICULAR KNOWN OR SUSPECTED DELINQUENT
TAXPAYERS.  PETITIONERS' POSITION IS NOT LIKE THAT OF A PERSON, ACCUSED
OR SUSPECTED OF CRIME, TO WHOM A POLICEMAN, A PROSECUTOR, OR AN
INVESTIGATING AGENCY HAS MADE A PROMISE OF IMMUNITY OR LENIENCY IN
RETURN FOR A STATEMENT.  IN THOSE CIRCUMSTANCES AN INCULPATORY
STATEMENT WOULD BE THE PRODUCT OF INDUCEMENT, AND THUS NOT AN ACT OF
FREE WILL.  NO SUCH INFERENCE, HOWEVER, IS ALLOWABLE IN THE CONTEXT OF
WHAT HAPPENED HERE.  PETITIONERS' RESPONSE, IT IS TRUE, MIGHT NOT HAVE
BEEN MADE IN THE ABSENCE OF THE TREASURY'S OFFER, BUT THAT IN ITSELF IS
NOT THE TEST.  THE VOLUNTARY DISCLOSURE POLICY LEFT THEM WHOLLY FREE TO
DISCLOSE OR NOT AS THEY PLEASED.  IN CHOOSING TO ACT AS THEY DID,
PETITIONERS, FAR FROM BEING THE VICTIMS OF THAT POLICY, WERE VOLUNTEERS
FOR ITS BENEFITS. 

MOREOVER, PETITIONERS WERE NOT SIMPLY VOLUNTEERS.  PLAINLY THE OFFER
OF IMMUNITY CONTAINED IN THE VOLUNTARY DISCLOSURE POLICY PRESUPPOSED,
AT THE VERY LEAST, THAT A DELINQUENT TAXPAYER WOULD MAKE A FULL "CLEAN
BREAST OF THINGS."  355 U.S., AT 235, NOTE 2.  NOTHING LESS SATISFIES
THE BASIC REASON FOR THE POLICY - "TAKING A SENSIBLE STEP TO PRODUCE
THE REVENUE CALLED FOR BY LAW WITH THE MINIMUM COST OF INVESTIGATION"
(FN6)  - AND ITS MOST RECENT OFFICIAL EXPRESSION AT THE TIME THIS
DISCLOSURE WAS MADE.  (FN7)  AND THE RECORD INDEED SHOWS THAT
PETITIONERS COULD NOT HAVE UNDERSTOOD OTHERWISE.  (FN8)  GIVEN THESE
FACTORS THE MATTER THEN PARSES DOWN TO THIS:  GRANTING THAT IN DECIDING
WHETHER TO DISCLOSE OR RUN THE RISK OF PROSECUTION PETITIONERS WERE
INITIALLY JUSTIFIED IN RELYING ON THE TREASURY'S GENERAL OFFER OF
IMMUNITY, ONCE A FRAUDULENT DISCLOSURE HAD BEEN DETERMINED UPON THEY
MUST BE DEEMED TO HAVE RECOGNIZED THAT SUCH OFFER HAD IN EFFECT BEEN
WITHDRAWN AS TO THEM OR, AMOUNTING TO THE SAME THING, THAT THEY WERE NO
LONGER ENTITLED TO PLACE RELIANCE ON IT.  PETITIONERS ARE THUS IN LEGAL
EFFECT LEFT IN NO BETTER POSITION THAN THEY WOULD HAVE BEEN HAD THE
TREASURY FORMALLY WITHDRAWN ITS OFFER OF IMMUNITY BEFORE THEIR
DISCLOSURE FIGURES WERE FURNISHED.  THE CASE, THEN, IS NOT MERELY ONE
OF VOLUNTEERS BUT ALSO ONE IN WHICH THE FACTS DISCLOSED WERE
DELIBERATELY MISREPRESENTED.  UNDER NO ACCEPTABLE STRETCH OF THE BRAM
TEST CAN PETITIONERS' DISCLOSURE IN THESE CIRCUMSTANCES BE REGARDED AS
THE PRODUCT OF UNLAWFUL INDUCEMENT.  (FN9)  ITS ADMISSION INTO EVIDENCE
DID NOT OFFEND THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT. 
(FN10) 

FINALLY, RELEVANT CASES IN THE LOWER FEDERAL COURTS CONFIRM THE VIEW
THAT MUST BE REACHED ON PRINCIPLE.  IN THE COMPARABLE SITUATION OF A
DISCLOSURE BY A TAXPAYER MADE ONLY AFTER HE KNEW AN INVESTIGATION OF
HIS TAX RETURNS HAD COMMENCED, SUCH COURTS HAVE CONSISTENTLY, AND
CORRECTLY WE THINK, REFUSED TO SUPPRESS THE GOVERNMENT'S USE OF
DISCLOSED EVIDENCE ON THE GROUND THAT THE DISCLOSURE COULD NOT HAVE
BEEN INDUCED BY THE OFFER OF IMMUNITY WHERE THE OFFER HAD LAPSED. 
UNITED STATES V. LUSTIG, 163 F.2D 85, 88-89 (C.A.2D CIR.), CERT.
DENIED, 332 U.S. 775; WHITE V. UNITED STATES, 194 F.2D 215, 217 (C.A.
5TH CIR.), CERT. DENIED, 343 U.S. 930; BATEMAN V. UNITED STATES, 212
F.2D 61, 65-66 (C.A. 9TH CIR.) (SUPPRESSION ALSO DENIED BECAUSE
DISCLOSURE NOT "FULL AND COMPLETE"); UNITED STATES V. WEISMAN, 78 F.
SUPP. 979 (D.C.  MASS.).  SIMILARLY A DISHONEST DISCLOSURE CANNOT BE
DEEMED TO HAVE BEEN SO INDUCED. 

PETITIONERS RELY ON REX V. BARKER, (1941) 2 K.B. 381, 3 ALL ENG. 33
(MORE FULLY REPORTED THERE), A DECISION OF THE KING'S BENCH DIVISION
HOLDING INADMISSIBLE IN A CRIMINAL TRIAL DOCUMENTS, IN PART FRAUDULENT,
WHICH THE DEFENDANT HAD PRODUCED UNDER A SIMILAR BRITISH DISCLOSURE
POLICY.  BUT THAT CASE DOES NOT SUPPORT THEIR POSITION.  FOR THOUGH THE
DEFENDANT THERE HAD FIRST MADE ONLY A PARTIAL AND MISLEADING
DISCLOSURE, HE HAD THEN FOLLOWED IT UP WITH A FULL AND HONEST ONE,
AFTER FURTHER DISCUSSIONS WITH THE INLAND REVENUE AND IN RELIANCE ON
ITS DISCLOSURE POLICY.  IN THE CASE BEFORE US NO FULL AND HONEST
DISCLOSURE WAS EVER MADE.    SINCE NO ELEMENT OF COERCION OR
INDUCEMENT, IN ANY TRUE SENSE OF THOSE TERMS, ATTENDED PETITIONERS'
DISCLOSURE, NO INROAD WHATEVER UPON CONSTITUTIONAL RIGHTS IS WROUGHT BY
OUR REJECTION OF THIS SUPPRESSION CLAIM.  ON THE CONTRARY, TO SUSTAIN
THE CLAIM WOULD AMOUNT TO TURNING AN IMPORTANT CONSTITUTIONAL PRINCIPLE
UPSIDE DOWN.  FOR WHAT WE HAVE HERE IS NOT A CASE OF INCRIMINATORY
EVIDENCE HAVING BEEN INDUCED BY THE GOVERNMENT, BUT ONE IN WHICH
PETITIONERS ATTEMPTED TO HOODWINK THE GOVERNMENT INTO WHAT WOULD HAVE
BEEN A FLAGRANT MISAPPLICATION OF ITS VOLUNTARY DISCLOSURE POLICY. 

   II. 

CLAIMING THAT IT APPEARED AT THE SECOND SUPPRESSION HEARING THAT
LUBBEN, WHOSE TRANSACTIONS WITH SHOTWELL FORMED THE BASIS OF THE
CHARGES IN THE INDICTMENT, HAD TESTIFIED FALSELY AT THE TRIAL
RESPECTING THE AMOUNT OF HIS BLACK-MARKET PAYMENTS, PETITIONERS CONTEND
THAT THE DISTRICT COURT SHOULD HAVE ORDERED A NEW TRIAL OF THE ENTIRE
CASE.  THE COURT OF APPEALS MADE SHORT SHRIFT OF THIS CONTENTION (287
F.2D, AT 675), AND WE TOO FIND NO SUBSTANCE IN IT. 

THE CORNERSTONE OF PETITIONERS' ARGUMENT IS A STATEMENT MADE BY THE
DISTRICT COURT IN THE COURSE OF ITS SUPPRESSION OPINION:  "  ...  THAT
LUBBEN MAY HAVE EXAGGERATED THE AMOUNTS OF THE PAYMENTS THAT HE AND HIS
CONFEDERATES MADE TO SHOTWELL IS ENTIRELY PROBABLE."  THIS STATEMENT IS
SOUGHT TO BE PORTRAYED AS A EUPHEMISM FOR A FINDING THAT LUBBEN'S TRIAL
TESTIMONY WAS PERJURIOUS.  WERE THAT SO A NEW TRIAL MIGHT WELL BE IN
ORDER, AS THE GOVERNMENT ACKNOWLEDGES, FOR LUBBEN WAS UNDOUBTEDLY A
CRUCIAL GOVERNMENT WITNESS.  BUT THE REOCRD BOTH DEMONSTRATES THE
HOLLOWNESS OF THAT CONTENTION AND AFFORDS NO OTHER BASIS FOR DISTURBING
THE CONCLUSIONS OF THE TWO LOWER COURTS THAT THESE PETITIONERS ARE NOT
ENTITLED TO A NEW TRIAL. 

FAR FROM CONSTITUTING A FINDING OF PERJURY, THE DISTRICT COURT'S
REMARK RESPECTING LUBBEN'S TRIAL TESTIMONY WAS NOTHING MORE THAN PART
OF A GENERAL OBSERVATION THAT THE PASSAGE OF TIME AND THE ABSENCE OF
ANY CONTEMPORARY RECORDS OF THE SHOTWELL-LUBBEN TRANSACTIONS MADE
DIFFICULT THE PIN-POINTING OF THE EXACT AMOUNT OF SHOTWELL'S UNREPORTED
BLACK-MARKET INCOME AND THE AMOUNT THEREOF THAT WAS PERSONALLY KEPT BY
ONE OR ANOTHER OF THE SHOTWELL OFFICERS.  THE SUPPRESSION RECORD MAKES
CLEAR THAT THE DISTRICT COURT DID NOT INITIALLY ADDRESS ITSELF TO THE
QUESTION WHETHER LUBBEN'S TRIAL TESTIMONY WAS PERJURIOUS, AND THAT IT
WAS NOT ASKED TO DO SO UNTIL AFTER ITS OPINION DENYING SUPPRESSION HAD
COME DOWN. 

TO THE CONTRARY, THE DISTRICT COURT HAD NOT CONSIDERED IT IMPORTANT
TO DETERMINE THE PRECISE AMOUNTS OF LUBBEN'S BLACK-MARKET PAYMENTS OR
OF THE MONEYS THAT WERE RETAINED BY HUEBNER, SULLIVAN AND CAIN.  IT WAS
ENOUGH THAT "THE EVIDENCE IS OVERWHELMINGLY CLEAR THAT NOT ONLY WERE"
SOME $300,000 TO $400,000 OF BLACK-MARKET PAYMENTS MADE TO SHOTWELL BY
LUBBEN IN THE PERIOD 1944-1946, BUT ALSO THAT "THE GREATER PART" OF
THIS MONEY "WAS APPROPRIATED BY CAIN, HUEBNER AND SULLIVAN FOR THEIR
OWN PERSONAL USE."  (FN11) 

PETITIONERS' MOTION FOR A NEW TRIAL, AND ITS DENIAL, FOLLOWED THE
FILING OF THE SUPPRESSION OPINION.  IN THEIR ARGUMENT BEFORE THE
DISTRICT COURT DEFENSE COUNSEL URGED, AMONG OTHER THINGS, THAT THE
COURT HAD "EUPHEMISTICALLY" FOUND LUBBEN'S TRIAL TESTIMONY TO HAVE BEEN
PERJURIOUS AND, MORE BROADLY, THAT THE SECOND SUPPRESSION HEARING AND
TRIAL VERSIONS OF THE DISCLOSURE EPISODE DIFFERED SO WIDELY AS TO
ENTITLE PETITIONERS TO A NEW JURY TRIAL OF THE MAIN CASE.  (FN12)  IN
DENYING THE MOTION THE DISTRICT JUDGE OBSERVED THAT HE HAD SIMPLY SAID
IN HIS SUPPRESSION OPINION "THAT THE AMOUNT THAT LUBBEN SAID HE PAID
MAY HAVE BEEN EXAGGERATED," AND THAT HE WOULD GRANT A NEW TRIAL IF HE
THOUGHT THERE "WAS A MISCARRIAGE OF JUSTICE," BUT THAT HE DID "NOT SO
FIND."  A CAREFUL STUDY OF THE RECORD SATISFIES US THAT THE DISTRICT
COURT DID NOT ABUSE ITS DISCRETION IN THUS RULING. 

PETITIONERS' ARGUMENT ON THIS SCORE CENTERS LARGELY AROUND THE
VARIANCES THEY CLAIM TO FIND BETWEEN THE TESTIMONY OF HUEBNER (WHO HAD
NOT TESTIFIED IN THE EARLIER PROCEEDINGS) AT THE SECOND SUPPRESSION
HEARING AND LUBBEN'S TRIAL TESTIMONY AS TO THE AMOUNT OF SHOTWELL'S
BLACK-MARKET RECEIPTS.  HUEBNER TESTIFIED TO SOME 16 OR 17 OCCASIONS ON
WHICH BLACK-MARKET MONEY HAD BEEN RECEIVED FROM LUBBEN, ALL OF WHICH HE
SAID HAD BEEN DIVIDED BETWEEN HIMSELF, CAIN AND SULLIVAN.  THESE
PAYMENTS AGGREGATED $272,000 IN 1945 AND 1946, THE YEARS INVOLVED IN
THE INDICTMENT, AS COMPARED WITH $454,000, LUBBEN'S TOTAL TRIAL
FIGURE.  (FN13)  BUT THE INDICATED DISPARITY OF $182,000 IS MORE
APPARENT THAN REAL, FOR, APART FROM THE FACT THAT HUEBNER WAS NOT THE
ONLY PERSON IN THE SHOTWELL ORGANIZATION WHO HAD RECEIVED LUBBEN MONEY,
AND THE FACT THAT HE WAS NEVER ASKED TO SAY WHETHER THESE WERE THE ONLY
LUBBEN PAYMENTS HE HIMSELF HAD RECEIVED, THERE MUST BE ADDED TO THIS
$272,000 TOTAL SOME $125,000 TO $150,000 THAT THE DEFENSE ASSERTED HAD
GONE INTO A "CORN BOX" (SAFE DEPOSIT BOX) AND WAS ACTUALLY USED FOR THE
PURCHASE OF BLACK-MARKET SUPPLIES OF CORN.  (FN14) HENCE, VIEWING
THINGS MOST FAVORABLY TO THE PETITIONERS, THE VARIANCE OF WHICH THEY
MAKE SO MUCH IS AT BEST NO MORE THAN FROM $32,000 TO $57,000.  (FN15) 

WE THINK THE DISTRICT COURT WAS FULLY JUSTIFIED IN FINDING THAT
HUEBNER'S TESTIMONY "AT THE SUPPLEMENTAL HEARING IS REASONABLY
CONSISTENT AND COMPATIBLE WITH THE TESTIMONY GIVEN BY THE GOVERNMENT
WITNESSES AT THE TRIAL REGARDING THESE (BLACK-MARKET) PAYMENTS," AND
THAT IT "TENDS TO CORROBORATE LUBBEN'S TESTIMONY."  (FN16)  SUCH
FINDINGS, MADE AS THEY WERE IN CONNECTION WITH WHAT IN EFFECT WAS A
MOTION FOR A NEW TRIAL ON NEWLY DISCOVERED EVIDENCE, MUST "REMAIN
UNDISTURBED EXCEPT FOR MOST EXTRAORDINARY CIRCUMSTANCES."  UNITED
STATES V. JOHNSON, 327 U.S. 106, 111.  WE FIND NONE HERE.  THIS IS NOT
A CASE, AS WERE MESAROSH V. UNITED STATES, 352 U.S. 1, AND COMMUNIST
PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S. 115, WHERE A
CONVICTION MAY BE REGARDED OR IS CONCEDED TO HAVE RESTED ON PERJURED
TESTIMONY.  (FN17)  TO OVERTURN THE DENIAL OF A NEW TRIAL IN THIS CASE
BY THE TWO LOWER COURTS WOULD BE TANTAMOUNT TO SAYING THAT ANY
SUBSEQUENTLY DISCOVERED INACCURACY IN THE TESTIMONY OF AN IMPORTANT
TRIAL WITNESS, WHICH MIGHT HAVE AFFECTED HIS CREDIBILITY IN THE EYES OF
THE JURY, WOULD ENTITLE A CONVICTED DEFENDANT TO A NEW TRIAL.  WE
CANNOT SO HOLD. 

                                      III. 

PETITIONERS NEXT ARGUE THAT THE REMAND PROCEEDINGS WERE THE PRODUCT
OF FRAUD AND OTHER GROSS IMPROPRIETIES ON THE PART OF THE GOVERNMENT
AND THAT THEY SHOULD THEREFORE BE HELD FOR NAUGHT.  THE CONTENTION HAS
THREE ASPECTS:  (1) THAT THE GOVERNMENT DID NOT DISCLOSE TO THIS COURT
THAT THE TESTIMONY OF THREE WITNESSES PROFFERED IN SUPPORT OF ITS
MOTION TO REMAND WAS CONTRARY IN SOME RESPECTS TO THAT WHICH THEY HAD
GIVEN, OR FAILED TO GIVE, ON PREVIOUS OCCASIONS; (2) THAT THE
GOVERNMENT FAILED TO ESTABLISH ON REMAND THAT THERE HAD BEEN ANY
PERJURY ON THE PART OF THE DEFENSE AT THE ORIGINAL SUPPRESSION HEARING,
AND ITSELF SUBORNED THREE OF ITS REMAND WITNESSES TO TESTIFY FALSELY;
AND (3) THAT THE PROSECUTION UTILIZED THE DELAY OCCASIONED BY THE
MOTION TO REMAND (355 U.S., 236-237, NOTE 6) TO DRAGOON WITNESSES INTO
TESTIFYING IN SUPPORT OF THE GOVERNMENT'S VIEW OF THINGS.  (FN18)  WE
FIND NO TRUTH IN ANY OF THESE SERIOUS CHARGES. 

THE MOST THAT COULD POSSIBLY BE CLAIMED RESPECTING THE ABSENCE OF ANY
REFERENCE IN THE REMAND PAPERS TO PRIOR INCONSISTENT STATEMENTS BY THE
PROFFERED WITNESSES (FN19) IS THAT IT WAS A MISTAKE OF JUDGMENT ON THE
PART OF THE GOVERNMENT NOT TO INCLUDE SUCH A REFERENCE.  BUT, WITHOUT
MINIMIZING THE UNQUALIFIED DUTY OF SCRUPULOUS CANDOR THAT RESTS UPON
GOVERNMENT COUNSEL IN ALL DEALINGS WITH THIS COURT, TO CHARACTERIZE
THIS EPISODE AS AMOUNTING TO A FRAUD UPON THE COURT IS, TO SAY THE
LEAST, UTTERLY EXTRAVAGANT. 

THE ISSUE TENDERED BY THE MOTION TO REMAND WAS OF COURSE NOT WHETHER
THE GOVERNMENT'S NEW EVIDENCE WAS TRUE OR FALSE, BUT WHETHER IT
WARRANTED A REEXAMINATION OF THE SUPPRESSION ISSUE BY THE DISTRICT
COURT.  THE EVALUATION OF THIS EVIDENCE, INCLUDING THE CREDIBILITY OF
THE THREE WITNESSES IN QUESTION, WAS AS THIS COURT RECOGNIZED (355
U.S., AT 241, 244-245) A MATTER FOR THE DISTRICT COURT.  IN THESE
CIRCUMSTANCES IT IS UNDERSTANDABLE THAT THE GOVERNMENT MIGHT HAVE
CONSIDERED THAT IF A REMAND WERE ORDERED THE DISTRICT COURT WAS THE
APPROPRIATE FORUM IN WHICH TO MAKE AVAILABLE ANY IMPEACHING MATERIAL IN
ITS POSSESSION.  CF., E.G., JENCKS V. UNITED STATES, 353 U.S. 657;
UNITED STATES V. ZBOROWSKI, 271 F.2D 661.  IN ANY EVENT THE GOVERNMENT
HAVING FULLY DISCLOSED ALL SUCH MATERIAL IN THE TRIAL COURT, AND THAT
COURT HAVING TAKEN IT INTO ACCOUNT IN MAKING ITS FINDINGS, INFRA, P.
360, IT WOULD BE CAPTIOUS TO HOLD THAT THE FAILURE TO ADVERT TO IT IN
THIS COURT NOW VITIATES THE REMAND. 

THE CLAIM THAT THE REMAND SHOULD BE SET ASIDE BECAUSE NO PERJURY WAS
FOUND IN CONNECTION WITH THE PETITIONERS' ORIGINAL TESTIMONY RELATING
TO THE DISCLOSURE BOTH MISCONCEIVES THE TERMS OF THE REMAND AND
MISPORTRAYS THE RECORD.  OUR REMAND DID NOT HAVE THE NARROW COMPASS
ATTRIBUTED TO IT, BUT BROADLY DIRECTED THE DISTRICT COURT TO REEXAMINE
THE WHOLE DISCLOSURE EPISODE (355 U.S., AT 245-246) - A DIRECTION TO
WHICH THE PROCEEDINGS BELOW WERE ENTIRELY RESPONSIVE.  AND THE DISTRICT
COURT PLAINLY FOUND THAT THE COURSE AND NATURE OF THE DISCLOSURE HAD
BEEN DELIBERATELY MISREPRESENTED BY PETITIONERS IN SIGNIFICANT RESPECTS
AT THE EARLIER SUPPRESSION HEARING.  (FN20)  ON THE OTHER SIDE OF THE
COIN THE DISTRICT COURT, AFTER FULL AND PAINSTAKING CONSIDERATION,
FOUND THAT THE FACTS, EXCEPT IN ONE PARTICULAR, WERE AS ANTICIPATORILY
REPRESENTED IN THE GOVERNMENT'S REMAND PAPERS, AND THAT HUEBNER,
GRAFLUND AND LIMA (NOTE 19) HAD TESTIFIED HONESTLY.  (FN21)  IT IS
CERTAINLY NOT FOR US TO REASSESS THEIR CREDIBILITY. 

FINALLY, AS TO THE GOVERNMENT'S ALLEGED DRAGOONING OF THESE
WITNESSES, IT APPEARS THAT IN CONNECTION WITH A  NEW GRAND JURY
INVESTIGATION THAT WAS CONDUCTED FROM APRIL 1956 TO FEBRUARY 1957 INTO
THESE SAME BLACK-MARKET TRANSACTIONS (RESULTING IN A FURTHER INDICTMENT
AGAINST THESE INDIVIDUAL PETITIONERS AND OTHERS), GRAFLUND, HUEBNER,
AND LIMA, AMONG SOME 64 WITNESSES, WERE CALLED FOR QUESTIONING ON MORE
THAN ONE OCCASION.  BUT THERE IS NOTHING IN THIS RECORD TO INDICATE
THAT THESE REPETITIVE APPEARANCES WERE OPPRESSIVE OR THAT ANY OF THEIR
QUESTIONING WAS ATTENDED BY IMPROPER METHODS OF INTERROGATION.  (FN22)
AND THE DISTRICT COURT, AFTER ELABORATE EXPLORATION, FOUND THE CHARGES
OF PROSECUTORIAL OVERREACHING BASELESS.  (FN23) 

WE NOW LEAVE THE REMAND PROCEEDINGS AND TURN TO THE ONLY TWO
CHALLENGES PRESSED HERE WITH RESPECT TO THE MAIN CASE ITSELF. 

                            IV. 

IN MARCH 1958, MORE THAN FOUR YEARS AFTER THE TRIAL, PETITIONERS
FILED AMENDED MOTIONS ATTACKING THE GRAND AND PETIT JURY ARRAYS.  THESE
MOTIONS, PREDICATED ON "NEWLY DISCOVERED EVIDENCE," ALLEGED THAT BOTH
JURIES WERE ILLEGALLY CONSTITUTED BECAUSE THE JURY COMMISSIONER
DELEGATED HIS SELECTION DUTIES TO ONE OF HIS PRIVATE EMPLOYEES;
VOLUNTEERS WERE PERMITTED TO SERVE ON THE JURIES; AND THE CLERK OF THE
DISTRICT COURT FAILED TO EMPLOY A SELECTION METHOD DESIGNED TO SECURE A
CROSS-SECTION OF THE POPULATION. 

WE THINK, AS THE TWO LOWER COURTS DID, THAT PETITIONERS HAVE LOST
THESE OBJECTIONS BY YEARS OF INACTION.  RULE 12(B)(2) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE PROVIDES:  "DEFENSES AND OBJECTIONS BASED
ON DEFECTS IN THE INSTITUTION OF THE PROSECUTION OR IN THE INDICTMENT
OR INFORMATION OTHER THAN THAT IT FAILS TO SHOW JURISDICTION IN THE
COURT OR TO CHARGE AN OFFENSE MAY BE RAISED ONLY BY MOTION BEFORE TRIAL
...  .  FAILURE TO PRESENT ANY SUCH DEFENSE OR OBJECTION AS HEREIN
PROVIDED CONSTITUTES A WAIVER THEREOF, BUT THE COURT FOR CAUSE SHOWN
MAY GRANT RELIEF FROM THE WAIVER."  PETITIONERS CONCEDE, AS THEY MUST,
THAT THIS RULE APPLIES TO THEIR OBJECTION TO THE GRAND JURY ARRAY,
(FN24) BUT DENY THAT IT APPLIES TO THEIR OBJECTION TO THE PETIT JURY
ARRAY.  ON THE LATTER POINT WE DO NOT AGREE.  IN FRAZIER V. UNITED
STATES, 335 U.S. 497, 503, THIS COURT STATED THAT A CHALLENGE TO THE
METHOD OF SELECTING THE PETIT JURY PANEL COMES TOO LATE WHEN NOT MADE
BEFORE TRIAL.  AND THE LOWER FEDERAL COURTS HAVE UNIFORMLY HELD THAT AN
OBJECTION TO THE PETIT JURY ARRAY IS NOT TIMELY IF IT IS FIRST RAISED
AFTER VERDICT.  SEE, E.G., HANRATTY V. UNITED STATES, 218 F.2D 358,
359, CERT. DENIED, 349 U.S. 928; UNITED STATES V. KLOCK, 210 F.2D 217,
220; HIGGINS V. UNITED STATES, 160 F.2D 222, 223, CERT. DENIED, 331
U.S. 822; UNITED STATES V. PETERSON, 24 F. SUPP. 470. 

PETITIONERS HAVE NOT ADVANCED ANY REASONS FOR OVERTURNING THIS
SETTLED COURSE OF DECISION.  RATHER, THEY ARGUE THAT WHEN PUBLIC
OFFICIALS VIOLATE CONSTITUTIONAL RIGHTS BY ACTIONS WHOSE ILLEGALITY IS
NOT READILY NOTICEABLE BY THE LITIGANTS OR THEIR COUNSEL, SUFFICIENT
CAUSE HAS BEEN SHOWN TO WARRANT RELIEF FROM APPLICATION OF THE RULE. 
BALLARD V. UNITED STATES, 329 U.S. 187, IS SAID TO STAND FOR THE BROAD
PROPOSITION THAT TECHNICAL RULES OF PROCEDURE DO NOT PREVENT THIS COURT
FROM CONSIDERING THE MERITS OF A BASIC CHALLENGE TO THE METHOD OF JURY
SELECTION. 

IN THE CIRCUMSTANCES OF THIS CASE, PETITIONERS' CONTENTIONS ARE
WITHOUT FOUNDATION.  IN DENYING THE MOTIONS THE DISTRICT COURT FOUND
THAT THE FACTS CONCERNING THE SELECTION OF THE GRAND AND PETIT JURIES
WERE NOTORIOUS AND AVAILABLE TO PETITIONERS IN THE EXERCISE OF DUE
DILIGENCE BEFORE THE TRIAL.  THE SAME METHOD OF SELECTING JURORS IN THE
DISTRICT HAD BEEN FOLLOWED BY THE CLERK AND THE JURY COMMISSIONER FOR
YEARS.  INQUIRY AS TO THE SYSTEM EMPLOYED COULD HAVE BEEN MADE AT ANY
TIME.  INDEED, THE ACCEPTANCE OF VOLUNTEERS FOR THE JURIES HAD RECEIVED
PUBLICITY IN THE NEWSPAPERS, AND THEIR PRESENCE ON THE PETIT JURY COULD
HAVE BEEN ASCERTAINED AT THE TIME IT WAS CONSTITUTED.  AND BALLARD
LENDS NO SUPPORT TO PETITIONERS' POSITION, FOR IN THAT CASE THE
CHALLENGE TO THE JURY PANEL HAD BEEN TIMELY MADE AND PRESERVED.  SEE
329 U.S., AT 190.    FINALLY, BOTH COURTS BELOW HAVE FOUND THAT
PETITIONERS WERE NOT PREJUDICED IN ANY WAY BY THE ALLEGED ILLEGALITIES
IN THE SELECTION OF THE JURIES.  NOR DO PETITIONERS POINT TO ANY
RESULTING PREJUDICE.  (FN25)  IN BALLARD IT WAS SAID (AT P. 195) THAT
"REVERSIBLE ERROR DOES NOT DEPEND ON A SHOWING OF PREJUDICE IN AN
INDIVIDUAL CASE."  HOWEVER, WHERE, AS HERE, OBJECTION TO THE JURY
SELECTION HAS NOT BEEN TIMELY RAISED UNDER RULE 12(B)(2), IT IS
ENTIRELY PROPER TO TAKE ABSENCE OF PREJUDICE INTO ACCOUNT IN
DETERMINING WHETHER A SUFFICIENT SHOWING HAS BEEN MADE TO WARRANT
RELIEF FROM THE EFFECT OF THAT RULE. 

WE NEED EXPRESS NO OPINION ON THE PROPRIETY OF THE PRACTICES
ATTACKED.  IT IS ENOUGH TO SAY THAT WE FIND NO ERROR IN THE TWO LOWER
COURTS' HOLDING THAT THE OBJECTION HAS BEEN LOST. 

                              V. 

PETITIONER SULLIVAN CONTENDS THAT HE WAS DENIED A FAIR TRIAL IN TWO
RESPECTS:  (1) THE ONLY SPECIFIC EVIDENCE AGAINST HIM WAS AN ALLEGED
ADMISSION WHICH LUBBEN TESTIFIED SULLIVAN MADE TO HIM - TESTIMONY WHICH
LUBBEN, IT IS ASSERTED, LATER RECANTED; AND (2) THE TRIAL JUDGE'S
INSTRUCTIONS ALLOWED THE JURY TO CONSIDER EVIDENCE THAT HAD NOT BEEN
ADMITTED AGAINST HIM. 

AT ONE POINT IN THE TRIAL LUBBEN TESTIFIED THAT, TO THE BEST OF HIS
RECOLLECTION, HE HAD A CONVERSATION WITH SULLIVAN ON OR ABOUT FEBRUARY
14, 1946, CONCERNING THE ADVISABILITY OF PAYING THE BLACK-MARKET
OVERAGES BY CHECK.  ACCORDING TO LUBBEN:  SULLIVAN ASKED "ARE YOU SURE
THIS (THE PAYMENT) IS NOT APPEARING ON YOUR BOOKS ANY PLACE?"  SULLIVAN
THEN PROCEEDED TO STATE:  "WELL, DAVE, YOU KNOW HOW IT IS.  YOU HAVE A
PLACE IN NEW JERSEY, A FARM IN NEW JERSEY.  THIS MONEY I HAVE BEEN
USING IN MY FARM  ...  .  I AM GETTING A NEW DRIVEWAY  ...  PUT IN  ...
.  THAT IS THE ONLY WAY I CAN DO IT TODAY, WITH THE TAX SITUATIONS THE
WAY THEY ARE."  WHEN THE TRIAL RESUMED THE FOLLOWING DAY, LUBBEN
VOLUNTEERED A CORRECTION OF HIS PREVIOUS TESTIMONY, STATING THAT THE
CONVERSATION HAD TAKEN PLACE AS DESCRIBED BUT NOT ON FEBRUARY 14, 1946;
IT HAD OCCURRED, HE THOUGHT, "SOME TIME AROUND SEPTEMBER OR OCTOBER OF
1946."  IT IS APPARENT, THEREFORE, THAT THE SUBSTANCE OF THE TESTIMONY
WAS NOT RECANTED. 

THERE WAS, MOREOVER, ADDITIONAL TESTIMONY AGAINST THIS PETITIONER. 
SULLIVAN HIMSELF ADMITTED AT THE TRIAL THAT HE HAD KNOWLEDGE OF THE
SHOTWELL BLACK-MARKET RECEIPTS, MAINTAINING, HOWEVER, THAT THE MONEY
WAS USED SOLELY FOR THE PURCHASE OF BLACK-MARKET SUPPLIES.  BUT ROESER,
COMPTROLLER OF SHOTWELL, TESTIFIED THAT, WHEN DIRECTED, HE TURNED OVER
CASH MONEYS RECEIVED FROM LUBBEN TO CAIN, HUEBNER, AND SULLIVAN. 
ERICSON, SHIPPING SUPERINTENDENT OF SHOTWELL IN 1945 AND 1946, STATED
THAT ALTHOUGH HIS MEMORY WAS NOT CLEAR AS TO THE PARTICULAR OFFICIALS
PRESENT WHEN THE DEVIOUS METHOD OF SHIPPING BLACK-MARKET CANDY TO
LUBBEN WAS INAUGURATED, (FN26) HE WOULD NOT HAVE SHIPPED IN THIS WAY
WITHOUT INSTRUCTIONS FROM CAIN, SULLIVAN, OR HUEBNER.  AND SULLIVAN'S
OWN ANSWERS ON CROSS-EXAMINATION RESPECTING HIS KNOWLEDGE OF THE
NECESSITY FOR KEEPING THE LUBBEN BLACK-MARKET TRANSACTIONS OFF
SHOTWELL'S BOOKS WERE, TO SAY THE LEAST, HIGHLY EQUIVOCAL.  (FN27) 

THE FOREGOING EVIDENCE, COUPLED WITH SULLIVAN'S STATUS AS EXECUTIVE
VICE-PRESIDENT OF SHOTWELL AND HIS GENERAL PROMINENCE AT THE POLICY
LEVEL OF THE COMPANY'S AFFAIRS, WAS AMPLY SUFFICIENT TO CARRY THE CASE
AS TO HIM TO THE JURY AND TO SUPPORT ITS VERDICT OF GUILT. 

THE TRIAL JUDGE REPEATEDLY CAUTIONED THE JURY THROUGHOUT THE TRIAL
THAT CERTAIN EVIDENCE, PARTICULARLY THE DISCLOSURE DOCUMENTS TURNED
OVER TO THE TREASURY, WAS NOT BEING ADMITTED AGAINST SULLIVAN AND
SHOULD NOT BE CONSIDERED AGAINST HIM.  IT IS CLAIMED, HOWEVER, THAT THE
COURT'S INSTRUCTIONS NEVERTHELESS ALLOWED THE JURY TO CONSIDER SUCH
EVIDENCE.  THE ALLEGEDLY ERRONEOUS PORTION OF THE CHARGE STATES: 

"YOU HAVE HEARD THE TESTIMONY REGARDING CAIN'S ALLEGED ADMISSION AS
TO THE FALSITY OR INCOMPLETENESS OF THESE TAX RETURNS, AND HIS
EXPLANATION AS TO WHY, IN HIS OPINION, AT THE TIME HE ASSUMED THEY WERE
FALSE AND INACCURATE. 

"THERE HAS ALSO BEEN RECEIVED IN EVIDENCE WORK SHEETS AND DATA
COMPILED BY MR. BUSBY, AND CERTAIN DATA COMPILED BY MR. CAIN WITH
RESPECT TO AN ALLEGED TENTATIVE COMPILATION OF THE OVERAGES, AND THE
DISPOSITION OF SUCH RECEIPTS BY SHOTWELL, FOR RAW MATERIALS, AND THE
NATURE AND CHARACTER OF THE DISPOSITION, WHICH WAS ALLEGEDLY MADE. 

"ALL OF THE TESTIMONY SHOULD BE CONSIDERED BY YOU, THAT IS, ALL THAT
TESTIMONY SHOULD BE CONSIDERED BY YOU IN VIEW OF THE CIRCUMSTANCES, AND
UNDERSTANDING OF THE PARTIES IN SO FAR AS IT MAY BEAR UPON ANY INTENT
OF THE PARTIES TO WILFULLY VIOLATE THE INCOME TAX LAWS OR THEIR GOOD
FAITH, OR LACK OF GOOD FAITH IN THE MATTER." 

THIS INSTRUCTION MUST BE READ IN CONTEXT.  SHORTLY AFTER IT WAS
GIVEN, THE COURT PROCEEDED TO CHARGE: 

"ANY STATEMENT OR ACT OF ANY OF THE DEFENDANTS NOT IN THE PRESENCE OF
ANOTHER DEFENDANT IS NOT BINDING UPON THE ABSENT DEFENDANTS, EVEN
THOUGH ONE OR MORE OF THE DEFENDANTS WERE MENTIONED IN THE
CONVERSATION, NOR ARE SUCH MATTERS COMPETENT EVIDENCE AGAINST ANY OTHER
DEFENDANT NOT PRESENT.  I HAVE LIMITED, YOU WILL OBSERVE, CERTAIN
EVIDENCE DURING THE TRIAL, FROM TIME TO TIME, AS BEING COMPETENT ONLY
AS TO CERTAIN DEFENDANT OR DEFENDANTS, THAT IS, BY WAY OF EXAMPLE, WHAT
MR. HUEBNER, OR MR. CAIN MAY HAVE SAID OR DONE IN THE ABSENCE OF MR.
SULLIVAN, WOULD NOT BE BINDING OR COMPETENT AS TO MR. SULLIVAN." 

THIS LIMITING INSTRUCTION IS CLEAR.  IT MUST BE PRESUMED THAT THE JURY
CONSCIENTIOUSLY OBSERVED IT.  UNITED STATES V. HARRIS, 211 F.2D 656,
659, CERT. DENIED, 348 U.S. 822.  SURELY IT WOULD HAVE BEEN
IMPRACTICABLE FOR THE TRIAL JUDGE, AS HE DISCUSSED THE EVIDENCE IN HIS
FINAL INSTRUCTIONS, TO HAVE REMINDED THE JURY WITH RESPECT TO EACH OF
THE MANY ITEMS OF PROOF MENTIONED THAT IT HAD BEEN ADMITTED ONLY
AGAINST CERTAIN NAMED DEFENDANTS AND SHOULD NOT BE CONSIDERED AGAINST
THE OTHERS.  WE FIND NO ERROR IN THE CHARGE. 

THE JUDGMENT OF THE COURT OF APPEALS AS TO ALL PETITIONERS MUST BE
AFFIRMED. 

FN1  THE COURT ALSO HELD THAT A "DISHONEST AND FALSE DISCLOSURE
CANNOT BE HELD TO BE A TIMELY VOLUNTARY DISCLOSURE." 

FN2  IN ITS EARLIER DECISION THE COURT OF APPEALS REJECTED
PETITIONERS' PLEA IN BAR GROUNDED ON A CLAIM OF IMMUNITY.  225 F.2D, AT
397.  THAT CLAIM HAS NOT BEEN RENEWED IN THEIR PRESENT PETITION FOR
CERTIORARI, AND IN ANY EVENT WOULD NOT BE AVAILING IN LIGHT OF THE
FINDINGS BELOW. 

FN3  THE FOURTH AMENDMENT IS ALSO RELIED ON, BUT THAT AMENDMENT IS
MANIFESTLY INAPPOSITE.  SEE CENTRACCHIO V. GARRITY, 198 F.2D 382, 387,
CERT. DENIED, 344 U.S. 866. 

FN4  THE SUFFICIENCY OF THE FINDING AS TO THE FALSITY OF THE
EXPENDITURES IS NOT ATTACKED. 

FN5  AT THE TRIAL OF THIS CRIMINAL CASE THE DISTRICT COURT CHARGED
THE JURY THAT IT SHOULD ACQUIT IF IT BELIEVED THAT SHOTWELL'S BLACK
MARKET RECEIPTS HAD BEEN USED FOR THE PURCHASE OF BLACK-MARKET
SUPPLIES.  SEE 287 F.2D, AT 671, NOTE 7. 

FN6  ADDRESS BY J.P. WENCHEL, CHIEF COUNSEL OF THE BUREAU OF INTERNAL
REVENUE, TO THE TAX EXECUTIVES INSTITUTE, MAY 14, 1947. 

FN7  "THIS (THE DISCLOSURE POLICY) PRESUMES, OF COURSE, THAT THE
REPENTANT TAXPAYER COOPERATES WITH AGENTS OF THE BUREAU IN DETERMINING
THE TRUE TAX LIABILITY."  PRESS RELEASE OF STATEMENT BY SECRETARY OF
THE TREASURY SNYDER, MAY 25, 1947.  IN CENTRACCHIO V. GARRITY, SUPRA,
AT 389, FORMER CHIEF JUDGE MAGRUDER, WRITING FOR THE FIRST CIRCUIT,
RECOGNIZED THAT "IT WOULD SEEM THAT THE TAXPAYER WOULD HAVE TO SATISFY
THE COURT THAT HE MADE A VOLUNTARY, GOOD FAITH DISCLOSURE OF ALL DATA
NECESSARY TO A CORRECT COMPUTATION OF HIS INCOME TAX DEFICIENCIES  ...
." 

FN8  BUSBY, SHOTWELL'S AUDITOR, TESTIFIED AT THE TRIAL THAT HE WAS
"ACQUAINTED WITH THE PUBLISHED STATEMENTS OF THE TREASURY" CONCERNING
THE VOLUNTARY DISCLOSURE POLICY AND THAT, IN PARTICULAR, HE HAD BROUGHT
TO PETITIONERS' ATTENTION THE ADDRESS BY THE CHIEF COUNSEL OF THE
INTERNAL REVENUE BUREAU QUOTED ABOVE IN PART.  CAIN ALSO TESTIFIED THAT
BUSBY HAD EXPLAINED THE TREASURY'S POLICY TO HIM AND SULLIVAN.  MORE
PARTICULARLY, SAUBER, THE BUREAU'S REPRESENTATIVE, TESTIFIED THAT AT
THE INITIAL DISCLOSURE DISCUSSION HE TOLD BUSBY THAT SHOTWELL HAD TO
RECONSTRUCT THE FIGURES RELATING TO THE BLACK-MARKET RECEIPTS AND
EXPENDITURES IN ORDER TO BE ABLE TO FILE AN ACCURATE AMENDED TAX
RETURN, AND THAT CAIN HAD REPRESENTED THAT "NO ONE IN SHOTWELL
MANUFACTURING COMPANY PROFITED BY THESE TRANSACTIONS." 

FN9  THE SAME CONSIDERATIONS DEPRIVE OF EVEN COLORABLE SIGNIFICANCE
THE SUGGESTION THAT SAUBER'S "ASSURANCES" TO PETITIONERS, ON THE
OCCASION OF THEIR PRELIMINARY INQUIRY RESPECTING THE AVAILABILITY OF
THE TREASURY'S DISCLOSURE POLICY TO AN UNKNOWN TAXPAYER IN SHOTWELL'S
CIRCUMSTANCES, SHOULD BE DEEMED SUFFICIENT TO BRING THEIR FIFTH
AMENDMENT CLAIM WITHIN THE BRAM TEST.  FOR APART FORM THE FACT THAT
SUCH ASSURANCES WERE NO MORE THAN AN AFFIRMATION OF THE TERMS OF THE
PUBLISHED DISCLOSURE POLICY OF WHICH PETITIONERS WERE THEN ALREADY WELL
AWARE, IT IS CLEAR THAT WHAT SAUBER SAID WAS EXPRESSLY CONDITIONED NOT
MERELY ON A DISCLOSURE BEING "TIMELY" BUT ALSO ON THE PREMISE THAT "THE
FACTS  ...  (THEN HYPOTHETICALLY) RELATED TO HIM WERE CORRECT."  AS
ALREADY SHOWN, THE FALSITY OF SHOTWELL'S OFFSETTING BLACK-MARKET
DISBURSEMENTS WAS NEVER REVEALED. 

FN10  A QUITE DIFFERENT CASE WOULD BE PRESENTED IF AN OFFER OF
IMMUNITY HAD BEEN SPECIFICALLY DIRECTED TO PETITIONERS IN THE CONTEXT
OF AN INVESTIGATION, ACCUSATION, OR PROSECUTION.  A DISCLOSURE MADE IN
SUCH CIRCUMSTANCES WOULD NOT HAVE FALLEN UNDER THE VOLUNTARY DISCLOSURE
POLICY, WHICH BY DEFINITION WAS APPLICABLE ONLY TO DISCLOSURES MADE
BEFORE ANY INVESTIGATION HAD COMMENCED, AND WOULD HAVE BEEN
INADMISSIBLE IN EVIDENCE UNDER THE BRAM TEST.  UNDER THE RULE OF ROGERS
V. RICHMOND, SUPRA, THE TRUTH OR FALSITY OF SUCH A DISCLOSURE WOULD
THEN BE IRRELEVANT TO THE QUESTION OF ITS ADMISSIBILITY.  WE AGREE THAT
THE RULE OF THAT CASE, INVOLVING A STATE TRIAL, IS EQUALLY APPLICABLE
IN A FEDERAL PROSECUTION. 

THE CASE WOULD ALSO BE DIFFERENT HAD THE PETITIONERS, ACTING UNDER
THE VOLUNTARY DISCLOSURE POLICY, MADE AN HONEST DISCLOSURE.  WHETHER OR
NOT DIFFERENT CONSTITUTIONAL PRINCIPLES OR OTHER CONSIDERATIONS WOULD
THEN PREVENT THE GOVERNMENT FROM RENEGING ON ITS PROMISE BY USING SUCH
MATERIAL AS EVIDENCE IN A CRIMINAL TRIAL NEED NOT NOW BE DECIDED.  CF.
SMITH V. UNITED STATES, 348 U.S. 147. 

FN11  THE FOLLOWING IS THE FULL TEXT OF THIS PORTION OF THE DISTRICT
COURT'S OPINION:  "SOME FOURTEEN YEARS HAVE ELAPSED SINCE THE BLACK
MARKET OPERATIONS OF SHOTWELL TOOK PLACE.  NO RECORD WAS KEPT BY
SHOTWELL OR ANY OF ITS OFFICIALS AS TO THE PREMIUM MONEYS PAID BY
LUBBEN AND HIS COMPANIES DURING THE YEARS IN QUESTION.  IT IS CONCEDED
THAT THOUSANDS OF DOLLARS WERE PAID TO SHOTWELL BY LUBBEN AND HIS
REPRESENTATIVES AS BLACK-MARKET PAYMENTS ON CANDY SOLD TO LUBBEN AND
HIS COMPANIES DURING 1945 AND 1946 WITHOUT ANY ATTEMPT ON THE PART OF
SHOTWELL TO MAKE ANY WRITTEN RECORD THEREOF.   CONSEQUENTLY, IT IS
PERFECTLY UNDERSTANDABLE THAT WHEN A WITNESS LIKE HUEBNER ATTEMPTS TO
RECOUNT THE SOME SIXTEEN INSTANCES WHEN HE RECEIVED SUBSTANTIAL SUMS OF
MONEY ON BEHALF OF SHOTWELL AS OVER-CEILING PAYMENTS ON CANDY SOLD BY
THAT COMPANY, THE AMOUNTS AND CIRCUMSTANCES AS TO THE DISPOSITION OF
THE MONEY MAY NOT BE TOO CLEAR IN HIS MEMORY.  HOWEVER, THE TESTIMONY
HE HAS GIVEN AT THE SUPPLEMENTAL HEARING IS REASONABLY CONSISTENT AND
COMPATIBLE WITH THE TESTIMONY GIVEN BY THE GOVERNMENT WITNESSES AT THE
TRIAL REGARDING THESE PAYMENTS.  HUEBNER DID NOT TAKE THE STAND AT THE
FIRST SUPPLEMENTAL HEARING NOR DURING THE TRIAL; HENCE, HIS TESTIMONY
AS TO THE AMOUNTS OF MONEY RECEIVED AND THE SIPHONING OF THESE PAYMENTS
TO VARIOUS OFFICIALS OF THE COMPANY IN MANY INSTANCES DISCLOSES FOR THE
FIRST TIME WHICH INDIVIDUALS WERE THE RECIPIENTS OF LUBBEN'S PAYMENTS. 
HOWEVER, HUEBNER MAY BE MISTAKEN AS TO THE EXACT AMOUNTS OF MONEY
RECEIVED AND WHEN THE PAYMENTS WERE MADE.  MOREOVER, THAT LUBBEN MAY
HAVE EXAGGERATED THE AMOUNTS OF THE PAYMENTS THAT HE AND HIS
CONFEDERATES MADE TO SHOTWELL IS ENTIRELY PROBABLE.  BUT THE EVIDENCE
IS OVERWHELMINGLY CLEAR THAT NOT ONLY WERE SUBSTANTIAL SUMS OF BLACK
MARKET MONEY PAID TO SHOTWELL AS PREMIUM PAYMENTS BY LUBBEN DURING
1944, 1945 AND 1946 TOTALING BETWEEN THREE AND FOUR HUNDRED THOUSAND
DOLLARS, BUT ALSO THAT THE GREATER PART OF THIS SO-CALLED BLACK-MARKET
MONEY WAS APPROPRIATED BY CAIN, HUEBNER AND SULLIVAN FOR THEIR OWN
PERSONAL USE.  THE QUESTION OF GOOD FAITH DOES NOT TURN ON THE EXACT
AMOUNT OF LUBBEN MONEY HUEBNER, SULLIVAN OR CAIN MAY HAVE RECEIVED FOR
THEIR OWN PERSONAL USE.  THAT CAIN PERSONALLY RECEIVED SUBSTANTIAL
AMOUNTS OF THE LUBBEN BLACK-MARKET PAYMENTS AND THAT SULLIVAN KNEW OF
THESE PAYMENTS AND RECEIVED A CERTAIN SHARE FOR HIS PERSONAL USE, BUT
IN A LESSER AMOUNT THAN CAIN AND HUEBNER, IS FULLY ESTABLISHED BY THE
RECORD." 

FN12  IN ADDITION, PETITIONERS'"SUPPLEMENT TO MOTION FOR NEW TRIAL"
ALLEGED NINE FURTHER GROUNDS FOR A NEW TRIAL, ONLY ONE OF WHICH (THE
OVERRULING OF THEIR CHALLENGE TO THE INDICTING GRAND JURY ARRAY) IS
PRESSED HERE.  INFRA, PP. 361-364.    FN13  OTHER MORE PARTICULAR
CHARGES AGAINST THE INTEGRITY OF LUBBEN'S TRIAL TESTIMONY ARE ALSO
MADE:  (1) THAT HUEBNER HAD CONTRADICTED LUBBEN WITH RESPECT TO A
PAYMENT OF $40,000 OVER-CEILING PRICES ON CERTAIN CHOCOLATE-COVERED
NUTS (BUT THE HUEBNER TESTIMONY TO WHICH PETITIONERS REFER IS CLOUDY ON
THIS SCORE); (2) THAT HUEBNER HAD TESTIFIED THAT LUBBEN HAD "LIED" WITH
RESPECT TO A $49,000 PAYMENT TO GRAFLUND (BUT THE RECORD SHOWS ONLY
THAT HUEBNER STATED THAT HE "THOUGHT IT WAS A MISTAKE ON LUBBEN'S
PART"); (3) THAT HUEBNER HAD TESTIFIED ON CROSS-EXAMINATION THAT HE
"THOUGH (LUBBEN) LIED ON THE STAND HERE" (BUT THE RECORD DOES NOT SHOW
IN WHAT RESPECTS HUEBNER THOUGHT THIS WAS SO); AND (4) THAT ONE TOBIAS,
NOT CALLED BY EITHER SIDE AT THE SUPPRESSION HEARING, HAD ALTERED
LUBBEN'S BOOKS, USED IN EVIDENCE AT THE TRIAL (BUT THE ONLY BASIS FOR
THIS ASSERTION IS HUEBNER'S HEARSAY TESTIMONY THAT HE HAD BEEN PRESENT
AT THE MEETING WHERE TOBIAS HAD SO STATED TO CAIN AND SULLIVAN;
MOREOVER, THIS MATTER HAD ALREADY BEEN TESTIFIED TO BY CAIN AND
SULLIVAN AT THE TRIAL). 

FN14  THE RECORD SHOWS THAT THE "CORN BOX" RECORDS HAD BEEN DESTROYED
ON CAIN'S INSTRUCTIONS. 

FN15  SUBSTANTIATION OF THE CHARGES IN THE INDICTMENT DID NOT OF
COURSE DEPEND ON THE PRECISE AMOUNTS OF SHOTWELL'S BLACK-MARKET
RECEIPTS, AND THE JURY MADE NO SPECIFIC FINDING ON THAT SCORE,
RETURNING A GENERAL VERDICT. 

FN16  HUEBNER'S TESTIMONY, GIVEN SOME 14 YEARS AFTER THE EVENTS HAD
OCCURRED AND WITHOUT THE USE OF ANY RECORDS, WAS QUITE GENERAL IN
REGARD TO THE AMOUNTS OF THE PAYMENTS MADE BY LUBBEN; THE FIGURES WERE
ALWAYS STATED IN ROUND NUMBERS, USUALLY PRECEDED BY A QUALIFYING
ADJECTIVE.  FOR EXAMPLE, HE TESTIFIED THAT "SOMETIME IN JANUARY, 1945"
HE RECEIVED "BETWEEN TEN AND ELEVEN THOUSAND DOLLARS" FROM LUBBEN, AND
THAT IN THE "FIRST PART OF MAY OF 1945" HE RECEIVED APPROXIMATELY
$30,000."  IN CONTRAST, LUBBEN'S TRIAL TESTIMONY WAS PRECISE AS TO THE
AMOUNTS PAID AND WAS SUPPORTED BY VARIOUS DOCUMENTARY EVIDENCE -
INVOICES, VOUCHERS, BOOK ENTRIES, RECAPITULATION SHEETS, CASH
AUTHORIZATION SHEETS, AND CHECKS TO CASH.  FOR EXAMPLE, LUBBEN
TESTIFIED THAT ON MAY 3, 1945, HE PAID $22,124.13 TO HUEBNER AT THE
SHERMAN HOTEL IN CHICAGO; THIS TESTIMONY WAS SUPPORTED BY AN EXPENSE
VOUCHER AND A CHECK TO CASH IN THAT AMOUNT, BOTH OF WHICH WERE PUT IN
EVIDENCE. 

FN17  IN STATING THIS WE HAVE NOT BEEN UNMINDFUL OF THE FACT THAT
SUBSEQUENT LITIGATION HAS SHOWN LUBBEN'S CHARACTER NOT TO BE A SAVORY
ONE.  SEE GIGLIO V. UNITED STATES, 355 U.S. 339; IN RE CARLSEN, 17 N.J.
338, 111 A.2D 393; STATE V. WELECK, 34 N.J. SUPER.  267, 112 A.2D 23. 
YET, SO FAR AS THIS TRIAL IS CONCERNED, A VIGOROUS CROSS-EXAMINATION OF
HIM, TO THE TUNE OF SOME 300 PAGES OF THE PRINTED RECORD, EVIDENTLY
FAILED TO SHAKE HIS CREDIBILITY IN THE ESTIMATION OF THE JURY. 

FN18  AT THE ORAL ARGUMENT PETITIONERS' COUNSEL OF COURSE DISCLAIMED
ANY INTENTION OF IMPLICATING THE THEN SOLICITOR GENERAL, AS WE PRESUME
THE MEMBERS OF HIS STAFF, IN THESE ACCUSATIONS OF WRONGDOING. 

FN19  THE WITNESSES WERE GRAFLUND, SHOTWELL'S COMPTROLLER, HUEBNER,
AND LIMA, A FORMER REVENUE AGENT.  SPECIFICALLY, THE GOVERNMENT IS
ACCUSED OF CONCEALING THE FOLLOWING CONTRADICTIONS: (1) GRAFLUND HAD
TOLD GOVERNMENT INVESTIGATORS AND THE 1956 GRAND JURY (INFRA, PP. 360
361) THAT (AS HE HAD TESTIFIED AT THE TRIAL) HE HAD FIRST DISCLOSED THE
BLACK-MARKET TRANSACTIONS TO BUSBY, SHOTWELL'S AUDITOR, IN JANUARY
1948, ALTHOUGH HIS REMAND AFFIDAVIT STATED THAT THIS CONVERSATION HAD
TAKEN PLACE IN JUNE 1948; (2) HUEBNER, PRIOR TO EXECUTING HIS
AFFIDAVIT, HAD NOT RECALLED HAVING ATTENDED A MEETING WITH SULLIVAN AND
ONE URBAN AT THE CHICAGO ATHLETIC CLUB FOR THE PURPOSE OF DISCUSSING A
PURCHASE OF LUBBEN'S BUSINESS SO AS TO ENABLE PETITIONERS TO GET THEIR
HANDS ON LUBBEN'S BOOKS AND RECORDS; (3) THE GOVERNMENT'S MOTION
INDICATED THAT LIMA WOULD TESTIFY ON REMAND THAT HE HAD PREPARED A
REPORT SHOWING A SHOTWELL DEFICIENCY OF $20,000 AND THEN DESTROYED IT
AT HIS SUPERVISOR'S DIRECTION, BUT IT WAS NOT REVEALED THAT IN HIS
PREVIOUS TESTIMONY AT THE TRIAL LIMA HAD NOT MENTIONED THE PREPARATION
OF SUCH A REPORT. 

FN20  IN ESSENCE THE DEFENSE POSITION AT THE FIRST SUPPRESSION
HEARING HAD BEEN (1) THAT A GENERAL DISCLOSURE HAD FIRST BEEN MADE TO
SAUBER, THE BUREAU'S REPRESENTATIVE, BY BUSBY AND CAIN IN LATE JANUARY
1948, SOME SIX MONTHS BEFORE THE BUREAU'S AGENT KRANE HAD COMMENCED AN
INVESTIGATION OF THE LUBBEN-SHOTWELL TRANSACTIONS ON JUNE 21, 1948; (2)
THAT PURSUANT TO THE JANUARY DISCUSSION WITH SAUBER THE DISCLOSURE
FIGURES HAD THEN BEEN PREPARED OVER A PERIOD OF SEVERAL MONTHS AND
FURNISHED TO THE BUREAU IN AUGUST 1948; AND (3) THAT NONE OF THE
SHOTWELL BLACK-MARKET RECEIPTS HAD BEEN POCKETED BY ANY OF THE
INDIVIDUAL PETITIONERS. 

AT THE SECOND SUPPRESSION HEARING THE DISTRICT COURT FOUND (1) THAT
THE BUSBY AND CAIN GENERAL DISCLOSURE HAD NOT BEEN MADE IN JANUARY
1948, BUT "MUCH LATER" THAN MARCH 15, 1948, THE DATE TESTIFIED TO BY
SAUBER IN THE EARLIER PROCEEDINGS, ALTHOUGH IT WAS BEFORE THE OPENING
OF KRANE'S INVESTIGATION ON JUNE 21, 1948; (2) THAT WHILE EFFORTS WERE
MADE BETWEEN JANUARY AND AUGUST 1948 TO GET FROM LUBBEN THE AMOUNTS OF
SHOTWELL'S BLACK-MARKET RECEIPTS, THE OFFSETTING BLACK-MARKET SUPPLY
PAYMENTS WERE NOT MADE UP UNTIL A DAY IN JULY 1948 AND WERE THEN
"CONCOCTED 'OUT OF THIN AIR,'" AS HAD BEEN REPRESENTED IN THE
GOVERNMENT'S MOTION TO REMAND; AND (3) THAT PETITIONERS' DENIALS OF
HAVING PERSONALLY POCKETED ANY OF THE BLACK-MARKET RECEIPTS WERE
FALSE. 

FN21  THE DISTRICT COURT FOUND IT "VERY PROBABLE" THAT GRAFLUND HAD
FIRST TALKED WITH BUSBY ABOUT SHOTWELL'S BLACK-MARKET RECEIPTS IN
JANUARY 1948, CONTRARY TO HIS REMAND AFFIDAVIT (NOTE 19, SUPRA) AND
TESTIMONY AT THE SECOND SUPPRESSION HEARING WHERE HE FIXED THE DATE AS
LATE JUNE 1948.  THE COURT, HOWEVER, FOUND THAT GRAFLUND HAD GIVEN THE
LATTER DATE "IN GOOD FAITH," AND THAT HIS ERROR WAS ATTRIBUTABLE TO
"LAPSE OF TIME" AND THE PROBABILITY THAT THERE HAD BEEN SUCH
CONVERSATIONS IN BOTH JANUARY AND JUNE, GRAFLUND HAVING BEEN LED TO
DISCARD THE JANUARY DATE BECAUSE OF THE "APPARENT FALSITY OF BUSBY'S
STATEMENT THAT HE FIRST SPOKE TO SAUBER IN JANUARY, 1948."  THE COURT
FURTHER OBSERVED:  "I BELIEVE GRAFLUND IS ATTEMPTING NOW TO TELL THE
TRUTH AS HE REMEMBERS THE EVENTS AFTER THE LAPSE OF THESE MANY YEARS." 

THE COURT ALSO BELIEVED LIMA'S TESTIMONY AS DESCRIBED IN THE
GOVERNMENT'S MOTION TO REMAND (NOTE 19, SUPRA), ALTHOUGH IT DOUBTED
WHETHER THE DESTROYED REPORT WAS INTENDED TO REPRESENT THE FINAL
DISPOSITION OF THE SHOTWELL AFFAIR.  AND AS TO HUEBNER, SEE PP. 355
356, SUPRA. 

FN22  BOTH HUEBNER AND GRAFLUND TESTIFIED UNDER CROSS-EXAMINATION BY
PETITIONERS' COUNSEL THAT THEY HAD NOT BEEN SUBJECTED TO PRESSURE OF
ANY KIND. 

FN23  THE COURT SAID:  "DEFENDANTS URGE THAT HUEBNER AND GRAFLUND,
CONCERNED WITH POSSIBLE FUTURE CRIMINAL PROSECUTION AGAINST THEM BY THE
GOVERNMENT, AND LIMA, WORRIED ABOUT HIS JOB, HAVE WITTINGLY OR
UNWITTINGLY FOLLOWED THE SUGGESTIONS AND PATTERN OF EVENTS WHICH
ZEALOUS GOVERNMENT OFFICIALS MAY HAVE ATTEMPTED TO INCULCATE.  I HAVE
ENDEAVORED TO MAKE REASONABLE ALLOWANCES FOR THE LAPSE OF THE YEARS
WHICH DIM MEMORIES, AND TO GIVE DUE CONSIDERATION TO THE CLAIM OF THE
DEFENDANTS AS TO THE INTEREST OF THE REVENUE OFFICERS, AND PERHAPS
OTHERS, TO ENCOURAGE THESE WITNESSES TO FOLLOW A CHRONOLOGY OF EVENTS
AND CIRCUMSTANCES WHICH MAY SUPPORT THE GOVERNMENT'S CONTENTIONS AS TO
WHAT OCCURRED DURING THE YEARS IN QUESTION.  HOWEVER, I DO NOT BELIEVE
THAT ANY GOVERNMENT OFFICIAL HAS ATTEMPTED TO HAVE ANY WITNESS HEREIN
TESTIFY FALSELY."  AND THE COURT FURTHER OBSERVED:  "THE FORTHRIGHT
ATTITUDE OF GOVERNMENT COUNSEL TO SUBMIT ALL PRIOR STATEMENTS AND GRAND
JURY TESTIMONY OF HUEBNER AND GRAFLUND TO DEFENDANTS' COUNSEL INDICATES
A COMMENDABLE FRANKNESS IN AFFORDING THE COURT ALL OF THE BACKGROUND
WHICH MAY BEAR UPON THEIR VERACITY." 

FN24  SEE SCALES V. UNITED STATES, 367 U.S. 203, 259; UNITED STATES
V. CLANCY, 276 F.2D 617, 631, REV'D ON OTHER GROUNDS, 365 U.S. 312;
MIRANDA V. UNITED STATES, 255 F.2D 9, 16. 

FN25  IT IS NOT SUGGESTED THAT THE CONTENTIONS MADE HERE GO TO THE
INDIVIDUAL QUALIFICATIONS OF ANY SEATED GRAND OR PETIT JUROR. 

FN26  WHEN SHIPPING CANDY TO LUBBEN, THE NAME "ABC COMPANY" WAS
ENTERED ON THE BILLS OF LADING AS THE SHIPPER INSTEAD OF SHOTWELL. 

FN27  "Q. DIDN'T YOU KNOW IT (LUBBEN PAYMENTS) WOULD HAVE TO BE KEPT
OFF THE BOOKS OR THE OPA INVESTIGATORS WOULD LOCATE IT? 

"A. THAT WAS TRUE AFTER - THAT WASN'T TRUE AFTER JUNE OF 1945 WHEN
THE OPA WENT OFF, OR AM I RIGHT - 1946, JUNE 30TH. 

"Q. HOW ABOUT THE PERIOD PRIOR TO THAT? 

"A. CERTAINLY IT HAD TO BE KEPT OFF THE BOOKS OR YOU WOULD BE SUBJECT
TO PERHAPS ADDITIONAL TROUBLE.  I KNOW THAT NOW.  I DIDN'T KNOW IT
THEN, I DON'T BELIEVE. 

"Q. WELL, ARE YOU SURE? 

"A. AM I SURE ABOUT WHAT? 

"Q. YOU SAID YOU DON'T BELIEVE YOU KNEW IT THEN.  ARE YOU SURE YOU
DIDN'T KNOW IT THEN? 

"A. I DON'T EVER REMEMBER DISCUSSING IT.  I AM NOT POSITIVE. 

"Q. OF COURSE, YOU KNEW THAT IF IT WAS OFF THE BOOKS FOR OPA
PURPOSES, IT WAS ALSO OFF THE BOOKS FOR INTERNAL REVENUE PURPOSES,
DIDN'T YOU.? 

"A. NOT NECESSARILY.  NOT NECESSARILY." 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

I THINK THESE CRIMINAL CONVICTIONS SHOULD BE REVERSED AND A NEW TRIAL
GRANTED BECAUSE OF SERIOUS ERRORS DENYING THE DEFENDANTS THE PROTECTION
OF TWO CONSTITUTIONAL GUARANTEES FOR A FAIR TRIAL. 

FIRST.  THE JURY VERDICTS REST IN PART ON CONFESSIONS OBTAINED FROM
THE DEFENDANTS BY GOVERNMENTAL PROMISES OF IMMUNITY FROM CRIMINAL
PROSECUTION, IN VIOLATION OF THE FIFTH AMENDMENT. 

SECOND.  IF THE GOVERNMENT'S CHIEF WITNESS ON THE REMAND HEARING GAVE
TRUTHFUL TESTIMONY, THE JURY'S CONVICTION OF THE DEFENDANTS RESTS IN
SUBSTANTIAL PART ON FALSE TESTIMONY OF THE GOVERNMENT'S CHIEF TRIAL
WITNESS. 

AN UNDERSTANDING OF THESE TWO QUESTIONS REQUIRES A STATEMENT OF THE
CIRCUMSTANCES OUT OF WHICH THEY ARISE.  THE SHOTWELL MANUFACTURING
COMPANY AND ITS PRINCIPAL OFFICERS WERE CONVICTED IN FEDERAL DISTRICT
COURT OF WILLFULLY ATTEMPTING TO EVADE SHOTWELL'S CORPORATE INCOME
TAXES FOR THE YEARS 1945 AND 1946.  THE MOST DAMAGING EVIDENCE THE
GOVERNMENT HAD AGAINST THE DEFENDANTS CONSISTED OF CONFESSIONS OF THE
INDIVIDUAL DEFENDANTS THAT THEY HAD FAILED TO REPORT CERTAIN AMOUNTS OF
THE CORPORATION'S 1945-1946 INCOME.  THE GOVERNMENT ALSO OFFERED DATA
IT OBTAINED FROM THE BOOKS AND RECORDS OF THE CORPORATE DEFENDANT AFTER
THESE CONFESSIONS WERE MADE.  AT THE TIME THESE CONFESSIONS WERE GIVEN,
THE TREASURY DEPARTMENT HAD IN EFFECT ITS WIDELY PUBLICIZED AND
PROCLAIMED "VOLUNTARY DISCLOSURE POLICY," WHICH, ACCORDING TO SECRETARY
OF THE TREASURY VINSON, PROMISED IMMUNITY FROM PROSECUTION TO ANY TAX
EVADER, EVEN A "WILLFUL EVADER," "WHO MAKES A DISCLOSURE BEFORE AN
INVESTIGATION IS UNDER WAY."  (FN1)  THIS WHOLE RECORD SHOWS BEYOND
DOUBT THAT BEFORE ANY INVESTIGATION OF THEM HAD BEEN INITIATED THE
DEFENDANTS LEARNED OF THE TREASURY'S PROMISE AND DISCLOSED THEIR
FAILURE TO REPORT INCOME WITH THE FULL EXPECTATION OF RECEIVING THE
BENEFITS OF THE PROMISE.  MOREOVER, THEY MADE THEIR CONFESSIONS AND
MADE THE DATA AVAILABLE ONLY AFTER ASSURANCES OF A CHIEF DEPUTY
COLLECTOR THAT "IF THE DISCLOSURE WAS TIMELY AND THE FACTS  ...
RELATED TO HIM WERE CORRECT, HE SAW NO REASON WHY THE IMMUNITY POLICY
OF THE BUREAU SHOULD NOT BE APPLIED IN THIS PARTICULAR MATTER."  AFTER
THE DEFENDANTS, SOLELY IN RELIANCE ON THE POLICY, HAD VOLUNTARILY GIVEN
GOVERNMENT AGENTS ENOUGH EVIDENCE TO SHOW A FAILURE TO REPORT A
SUBSTANTIAL PART OF SHOTWELL'S 1945-1946 INCOME, THE GOVERNMENT
NEVERTHELESS REFUSED THE PROMISED IMMUNITY AND SECURED THE INDICTMENTS
ON WHICH THESE PROSECUTIONS ARE BASED.  CHARGING THAT THE COURT SHOULD
NOT PERMIT THE GOVERMENT TO REAP ADVANTAGE FROM BROKEN PROMISES BUT
SHOULD COMPEL IT TO GRANT THE PROMISED IMMUNITY, THE DEFENDANTS FILED
MOTIONS TO DISMISS THE INDICTMENTS.  THE COURT REFUSED TO DISMISS,
HOWEVER, HOLDING THAT SINCE THE TREASURY DEPARTMENT'S PROMISES OF
IMMUNITY WERE NOT AUTHORIZED BY STATUTE, THE GOVERNMENT WAS NOT LEGALLY
BOUND TO KEEP THESE PROMISES AND COULD THEREFORE BREAK FAITH WITH ITS
TAXPAYERS WHENEVER IT CHOSE TO DO SO.  HAVING BEEN DENIED THE PROMISED
IMMUNITY, THE DEFENDANTS THEN MOVED TO SUPPRESS THEIR CONFESSIONS, THE
INCRIMINATING DOCUMENTARY EVIDENCE WHICH THEY HAD SPECIALLY PREPARED
AND DELIVERED TO TREASURY AGENTS, AND ALL DATA COMPILED BY THE TREASURY
FROM BOOKS AND RECORDS MADE AVAILABLE BY THE DEFENDANTS DURING THE TIME
THE GOVERNMENT WAS LEADING THEM TO BELIEVE THAT THEY WOULD BE GRANTED
THE IMMUNITY AS PROMISED.  THE GROUND FOR THE MOTION TO SUPPRESS WAS
THAT SINCE THE CONFESSIONS HAD BEEN OBTAINED BY PROMISES OF IMMUNITY
THEIR USE WOULD VIOLATE THE FIFTH AMENDMENT'S PROHIBITION AGAINST
COMPELLING A PERSON TO BE A WITNESS AGAINST HIMSELF.  THE DISTRICT
COURT REFUSED TO SUPPRESS, BUT THE COURT OF APPEALS REVERSED THE
CONVICTIONS BECAUSE THEY WERE BASED PARTLY ON THE CONFESSIONS AND
DOCUMENTS.  (FN2)  WHILE THE GOVERNMENT'S APPLICATION FOR CERTIORARI
WAS PENDING BEFORE US, THE GOVERNMENT FILED MOTIONS ASKING US TO DELAY
CONSIDERATION OF ITS APPLICATION.  THE GOVERNMENT ALLEGED THAT, SINCE
THE CONVICTIONS, IT HAD OBTAINED EVIDENCE INDICATING THAT THE
DEFENDANTS AND A GOVERNMENT OFFICIAL HAD GIVEN PERJURED TESTIMONY ABOUT
THE TIMELINESS AND COMPLETE TRUTHFULNESS OF THE DISCLOSURES.  LATER, WE
WERE ASKED TO REMAND THE WHOLE CASE TO THE DISTRICT JUDGE FOR HIM TO
GIVE NEW CONSIDERATION TO THE MOTION TO SUPPRESS, THE GROUNDS FOR THIS
MOTION BEING THAT THE GOVERNMENT HAD NEW EVIDENCE IN THE FORM OF
AFFIDAVITS TENDING TO SHOW THAT THE DEFENDANTS' DISCLOSURE OF THEIR TAX
DERELICTIONS HAD NEITHER BEEN "TIMELY" NOR "IN GOOD FAITH."  THE
GOVERNMENT CLAIMED TO HAVE AFFIDAVITS SHOWING (1) THE DISCLOSURES WERE
NOT "TIMELY" BECAUSE THEY HAD NOT BEEN MADE UNTIL AFTER AN
INVESTIGATION HAD BEEN INITIATED BY THE GOVERNMENT AND (2) THE
DISCLOSURES WERE NOT "IN GOOD FAITH" BECAUSE THE DEFENDANTS HAD DENIED
THEIR GUILT OF CRIMINAL TAX EVASION.  THIS COURT GRANTED THE MOTION AND
REMANDED THE CASE (FN3) OVER A DISSENT WHICH IN PART TOOK THE POSITION
THAT THE ALLEGED NEW FACTS BORE DIRECTLY ON THE GUILT OR INNOCENCE OF
THE DEFENDANTS AND THAT THE DEFENDANTS WERE ENTITLED TO HAVE THIS
EVIDENCE SUBMITTED TO A JURY INSTEAD OF TO A TRIAL JUDGE.  ON REMAND
THE EVIDENCE OFFERED BY THE GOVERNMENT BEFORE THE TRIAL JUDGE UTTERLY
FAILED TO SUPPORT THE GOVERNMENT'S CHARGE THAT THE DEFENDANTS WERE
GUILTY OF PERJURY IN TESTIFYING THAT THEIR DISCLOSURES TO THE TREASURY
DEPARTMENT WERE MADE BEFORE ANY INVESTIGATION HAD BEEN INITIATED.  AS
TO THE SECOND CHARGE THAT THE DEFENDANTS DID NOT ACT IN GOOD FAITH
BECAUSE THEY DENIED THEIR GUILT, THE TRIAL JUDGE FOUND WITH THE
GOVERNMENT.  IT IS OF GREAT IMPORTANCE, HOWEVER, THAT THE CHIEF
GOVERNMENT WITNESS ON REMAND (HUEBNER) TESTIFIED THAT THE CHIEF
GOVERNMENT WITNESS AT THE TRIAL BEFORE THE JURY (LUBBEN) HAD LIED TO
THE JURY IN GIVING EVIDENCE WHICH THE RECORD SHOWS WAS CRUCIAL TO THE
JURY'S FINDING OF GUILT.  ALTHOUGH THE DISTRICT JUDGE WAS COMPELLED TO
FIND FROM THE RECORD THAT IT WAS "ENTIRELY PROBABLE" THAT THIS
GOVERNMENT WITNESS LUBBEN HAD "EXAGGERATED" IN GIVING TESTIMONY BEFORE
THE JURY, HE NEVERTHELESS REAFFIRMED HIS REFUSAL TO SUPPRESS THE
INCRIMINATING EVIDENCE AND ALSO DENIED A MOTION FOR A NEW TRIAL BECAUSE
HE THOUGHT THE DEFENDANTS WERE GUILTY ANYWAY AND THERE WOULD THEREFORE
BE NO "MISCARRIAGE OF JUSTICE" IN DENYING THEM A NEW TRIAL BEFORE A NEW
JURY TO HEAR THE NEW EVIDENCE.  THIS TIME THE COURT OF APPEALS
AFFIRMED.  (FN4)  IT IS OUT OF THIS SITUATION THAT THE TWO ISSUES
ARISE, THE RIGHTS PROTECTED BY THE FIFTH AMENDMENT, AND THE RIGHT TO A
FAIR TRIAL BEFORE A JURY. 

                                    I. 

I THINK THE COURT OF APPEALS WAS WRONG IN AFFIRMING THE REFUSAL TO
SUPPRESS BUT WAS RIGHT THE FIRST TIME WHEN IT HELD THAT THE USE OF
THESE CONFESSIONS INDUCED BY THE GOVERNMENT'S PROMISE OF IMMUNITY "WAS
A VIOLATION OF EACH DEFENDANT'S PRIVILEGE AGAINST BEING COMPELLED IN
ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF, AS GUARANTEED BY THE
FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES."  (FN5) 

"THE CONSTITUTIONAL TEST FOR ADMISSION OF AN ACCUSED'S CONFESSION IN
FEDERAL COURTS FOR A LONG TIME HAS BEEN WHETHER IT WAS MADE 'FREELY,
VOLUNTARILY AND WITHOUT COMPULSION OR INDUCEMENT OF ANY SORT.'"  (FN6)
CONFESSIONS OF GUILT "ARE INADMISSIBLE IF MADE UNDER ANY THREAT,
PROMISE, OR ENCOURAGEMENT OF ANY HOPE OR FAVOR."  (FN7)  THIS COURT'S
LEADING DISCUSSION OF THE ADMISSIBILITY OF CONFESSIONS, ADMISSIONS, AND
INCRIMINATING STATEMENTS BOTH AT COMMON LAW AND UNDER THE FIFTH
AMENDMENT IS CONTAINED IN BRAM V. UNITED STATES, 168 U.S. 532 (1897). 
THAT OPINION WRITTEN BY MR. JUSTICE WHITE TRACES THE DEVELOPMENT OF THE
PROHIBITIONS AGAINST THE USE OF INVOLUNTARY CONFESSIONS BOTH IN ENGLAND
AND IN THIS COUNTRY.  IT CONCLUDES THAT IN UNITED STATES COURTS: 

"THE ISSUE IS CONTROLLED BY THAT PORTION OF THE FIFTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES, COMMANDING THAT NO PERSON 'SHALL
BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF.'" 
168 U.S., AT 542. 

TO EXPLAIN WHAT CONFESSIONS ARE ADMISSIBLE UNDER THE FIFTH AMENDMENT
BECAUSE NOT "COMPELLED," THE COURT QUOTED AND ADOPTED THIS PASSAGE FROM
3 RUSSELL ON CRIMES 478 (6TH ED.): 

"'BUT A CONFESSION, IN ORDER TO BE ADMISSIBLE, MUST BE FREE AND
VOLUNTARY:  THAT IS, MUST NOT BE EXTRACTED BY ANY SORT OF THREATS OR
VIOLENCE, NOR OBTAINED BY ANY DIRECT OR IMPLIED PROMISES, HOWEVER
SLIGHT  ...  .  A CONFESSION CAN NEVER BE RECEIVED IN EVIDENCE WHERE
THE PRISONER HAS BEEN INFLUENCED BY ANY THREAT OR PROMISE; FOR THE LAW
CANNOT MEASURE THE FORCE OF THE INFLUENCE USED, OR DECIDE UPON ITS
EFFECT UPON THE MIND OF THE PRISONER, AND THEREFORE EXCLUDES THE
DECLARATION IF ANY DEGREE OF INFLUENCE HAS BEEN EXERTED.'"  168 U.S.,
AT 542-543.  SEE, TO THE SAME EFFECT, WILSON V. UNITED STATES, 162 U.S.
613, 622 (1896). 

THUS IT WAS CLEARLY POINTED OUT THAT A "COMPELLED" CONFESSION WITHIN
THE FIFTH AMENDMENT'S MEANING IS ONE INDUCED EITHER BY FEAR OF INJURY
OR HOPE OF REWARD.  IN ORDER TO EMPHASIZE THIS CONCLUSION, THE COURT IN
BRAM, TIME AFTER TIME, REPEATED FOR ITSELF OR QUOTED WITH APPROVAL
PRIOR STATEMENTS THAT CONFESSIONS TO BE "FREE AND VOLUNTARY" MUST NOT
HAVE BEEN INDUCED OR INFLUENCED BY "HOPE OR FEAR," (FN8) "COMPULSION
...  PHYSICAL OR MORAL," (FN9) "THREAT OR INDUCEMENT," (FN10) OR BY
"ANY INDUCEMENT."  (FN11)  A CAREFUL READING OF THE BRAM OPINION CAN
LEAVE NO DOUBT THAT A PROPER INTERPRETATION OF THE FIFTH AMENDMENT,
ACCORDING TO THAT CASE, WOULD PROHIBIT THE GOVERNMENT'S USE OF A
CONFESSION INDUCED BY A HOPE OF IMMUNITY SUCH AS THAT SOLEMNLY HELD OUT
BY THE GOVERNMENT HERE JUST AS MUCH AS IT WOULD BAR USE OF A CONFESSION
OBTAINED BY VIOLENCE OR THREATS OF VIOLENCE.  AND NO ONE OF THESE
STATEMENTS, WHICH THE COURT PROFESSES TODAY TO ACCEPT, LEAVES THIS
COURT WITH THE SLIGHTEST FREEDOM TO INVENT EXCEPTIONS TO THE FIFTH
AMENDMENT RULE THAT CONFESSIONS SO INDUCED ARE INADMISSIBLE.  NOT ONLY
HAS THE BRAM CASE BEEN REPEATEDLY CITED WITH APPROVAL BY THIS COURT
(FN12) BUT ALSO ITS DECLARATION THAT CONFESSIONS ARE EQUALLY
INVOLUNTARY WHETHER OBTAINED BY HOPE OR FEAR IS IN HARMONY WITH THE
RULE THAT HAS OBTAINED IN A MAJORITY OF THE STATE COURTS FOR MORE THAN
A CENTURY.  (FN13)  INDEED, IT IS A COMMONPLACE, KNOWN PERHAPS TO ANY
LAWYER WHO HAS EVER TRIED HALF A DOZEN CRIMINAL CASES, THAT BEFORE
OFFERING A CONFESSION AGAINST A DEFENDANT A PROPER PREDICATE MUST BE
LAID, THAT IS, PROOF THAT THE CONFESSION WAS NOT THE RESULT OF ANY
THREAT OR PROMISE OF REWARD.  (FN14) 

THE CONTINUING VITALITY OF THE FIFTH AMENDMENT'S PROTECTION AS
DEFINED IN BRAM WAS SPECIFICALLY RECOGNIZED IN SMITH V. UNITED STATES,
348 U.S. 147 (1954), WHICH INVOLVED CIRCUMSTANCES STARTLINGLY LIKE
THOSE IN THIS CASE.  SMITH WAS PROSECUTED FOR ATTEMPTED TAX EVASION. 
HE CONTENDED THAT A CONFESSION OF HIS SHOULD NOT HAVE BEEN ADMITTED
INTO EVIDENCE BECAUSE HE GAVE IT ON AN UNDERSTANDING WITH A GOVERNMENT
AGENT THAT HE WOULD BE GRANTED IMMUNITY.  SMITH'S ACCOUNTANT TESTIFIED
THAT THE AGENT HAD PROMISED THIS IMMUNITY AND THAT THE DATA SHOWING
GUILT WOULD NOT HAVE BEEN GIVEN HAD THESE GOVERNMENTAL PROMISES NOT
BEEN MADE.  THE TRIAL JUDGE SUBMITTED THIS ISSUE TO THE JURY WITH THE
INSTRUCTION THAT IT SHOULD REJECT THE CONFESSION IF "TRICKERY, FRAUD OR
DECEIT" HAD BEEN "PRACTICED ON PETITIONER OR HIS ACCOUNTANT."  THIS
COURT HELD THAT ON THOSE FACTS THE ISSUE WAS PROPERLY SUBMITTED TO THE
JURY AND THAT "THE JURY, IN ARRIVING AT ITS GENERAL VERDICT (OF GUILT),
COULD HAVE FOUND FROM THE CONFLICTING EVIDENCE THAT NO FRAUDULENT
INDUCEMENT HAD BEEN OFFERED PETITIONER OR HIS ACCOUNTANT."  348 U.S.,
AT 151.  IN THE PRESENT CASE, THE UNDISPUTED EVIDENCE GIVEN BOTH BY THE
GOVERNMENT'S TAX AGENT HIMSELF AND BY DEFENDANTS' ACCOUNTANT WAS THAT
THE AGENT HAD ASSURED THE DEFENDANTS THAT THE GOVERNMENT'S GENERAL
POLICY OF IMMUNITY WOULD BE APPLICABLE TO THEM.  THE CIRCUIT COURT
FOUND AS A FACT THAT THIS PROMISE WAS MADE BY THE GOVERNMENT AGENT. 
(FN15)  ON REMAND, THE DISTRICT COURT FOUND IT "ENTIRELY PROBABLE" THAT
THE PROMISE HAD BEEN MADE.  THE COURT OF APPEALS IN ITS SECOND OPINION
DID NOT DISTURB ITS EARLIER FINDINGS, AND INDEED NO ONE, NOT EVEN THE
GOVERNMENT OR THIS COURT, APPEARS TO CHALLENGE THESE FINDINGS.  THUS,
THE FACTS PROVED IN THIS CASE WOULD, HAD THEY BEEN PRESENT IN THE SMITH
CASE, HAVE RESULTED IN THE EXCLUSION OF SMITH'S INCRIMINATING STATEMENT
AS "TRICKERY, FRAUD OR DECEIT."  (FN16) 

ALTHOUGH THE COURT PURPORTS TO ACCEPT THE BRAM HOLDING THAT THE FIFTH
AMENDMENT OF ITSELF FORBIDS THE USE OF A DEFENDANT'S CONFESSION
"OBTAINED BY ANY DIRECT OR IMPLIED PROMISES, HOWEVER SLIGHT," ITS
OPINION MOST DECIDEDLY REJECTS THIS INTERPRETATION OF THE AMENDMENT. 
THE REJECTION LIES MAINLY IN THE COURT'S ATTEMPT TO PROVE WHAT I DEEM
TO BE THE UNPROVABLE, NAMELY, THAT ALTHOUGH THESE CONFESSIONS "MIGHT
NOT HAVE BEEN MADE IN THE ABSENCE OF THE TREASURY'S OFFER" OF IMMUNITY,
THEY NEVERTHELESS WERE NOT INDUCED OR INFLUENCED BY THAT OFFER.  IN
ORDER TO REACH ITS ASTONISHING CONCLUSION, THE COURT USES VARIOUS
ALTERNATIVE FORMULAS, EACH OF WHICH IN TURN LOPS OFF A SIGNIFICANT PART
OF THE PROTECTIONS THE FIFTH AMENDMENT HAS ALWAYS BEEN THOUGHT TO
AFFORD. 

THE COURT SAYS THAT BECAUSE THE SECRETARY OF THE TREASURY ADDRESSED
HIS PROMISE OF IMMUNITY "TO THE PUBLIC GENERALLY AND NOT TO PARTICULAR
INDIVIDUALS" THE FIFTH AMENDMENT LEAVES THE GOVERNMENT WHOLLY FREE TO
USE ALL CONFESSIONS INDUCED BY THIS GENERAL DEVICE.  CERTAINLY THIS
EXCUSE FOR DENYING THE PROTECTION OF THE FIFTH AMENDMENT CANNOT BE
INFERRED EITHER FROM THE LANGUAGE OF THE AMENDMENT OR FROM ANYTHING
SAID IN THE BRAM CASE.  IT IS IMPOSSIBLE FOR ME TO UNDERSTAND WHY A
CONFESSION OBTAINED BY PROMISES ADDRESSED TO THE PUBLIC GENERALLY IS
ANY MORE "VOLUNTARY" THAN ONE OBTAINED BY PROMISES ADDRESSED TO
IDENTIFIED TAXPAYERS KNOWN OR SUSPECTED TO BE DELINQUENT.  INDEED, A
GENERAL PROMISE OF IMMUNITY ANNOUNCED BY A MEMBER OF THE PRESIDENT'S
CABINET IS LIKELY TO BE FAR MORE AUTHORITATIVE AND COMPELLING THAN IS
AN ISOLATED PROMISE BY A SUBORDINATE OFFICIAL.  SURELY THE GOVERNMENT
CANNOT ESCAPE THE COMMAND OF THE FIFTH AMENDMENT NOT TO USE GOVERNMENT
INDUCED CONFESSIONS SIMPLY BY MULTIPLYING THE NUMBER OF PEOPLE WHO ARE
PROMISED IMMUNITY.  MOREOVER, EVEN IF SPECIFIC STATEMENTS TO
INDIVIDUALS ARE REQUIRED, THE CONFESSIONS IN THIS CASE WOULD STILL BE
BARRED BY THE FIFTH AMENDMENT.  THIS IS BECAUSE, AS HAS BEEN POINTED
OUT, A CHIEF DEPUTY COLLECTOR FOR THE GOVERNMENT ASSURED THE
DEFENDANTS' ACCOUNTANT THAT HE SAW NO REASON WHY THEIR DISCLOSURES
SHOULD NOT ENTITLE THEM TO IMMUNITY UNDER THE GENERAL POLICY. 

THE COURT ALSO SEEMS TO STATE THAT THE FIFTH AMENDMENT DOES NOT BAR
THE ADMISSION OF CONFESSIONS INDUCED BY PROMISES OF IMMUNITY UNLESS
GIVEN WHILE UNDER SUSPICION OF CRIME IN RESPONSE TO A SPECIFIC PROMISE
BY A PARTICULAR OFFICER LIKE A POLICEMAN.  THERE IS NO SUPPORT FOR THIS
IN THE BRAM CASE.  THE COURT IN THAT CASE, IN STATING THAT A CONFESSION
INDUCED BY A PROMISE, HOWEVER SLIGHT, WAS INVOLUNTARY AND THEREFORE
INADMISSIBLE UNDER THE FIFTH AMENDMENT, IN NO WAY INTIMATED THAT THE
FACT OF INVOLUNTARINESS DEPENDS UPON THE PRESENCE OF A POLICEMAN OR
UPON ANY CIRCUMSTANCE OTHER THAN THAT A PROMISE HAS BEEN MADE WHICH
INDUCED A CONFESSION.  IT SEEMS TO ME THAT A TAXPAYER, UNEASY ABOUT
POSSIBLE CRIMINAL PROSECUTION AND WORRIED ABOUT ITS DESTRUCTIVE EFFECT
ON HIS FAMILY, REPUTATION, AND BUSINESS, WOULD BE SUSCEPTIBLE TO AN
OFFICIAL PROMISE OF IMMUNITY JUST AS ANY OTHER PERSON FEARFUL OF
PROSECUTION FOR SOME OTHER OFFENSE.  (FN17)  AND IF INDEPENDENT
COERCIVE CIRCUMSTANCES - LIKE THE PRESENCE OF A POLICEMAN, WITH OR
WITHOUT CLUB - ARE NECESSARY TO BAR THE USE OF A CONFESSION, AS THE
COURT INDICATES, THEN THE COURT IS DENYING THAT A PROMISE BY ITSELF, NO
MATTER HOW AUTHORITATIVE, CAN EVER RESULT IN A COMPELLED CONFESSION
PROHIBITED BY THE FIFTH AMENDMENT. 

THE COURT CONCLUDES THAT 'THE VOLUNTARY DISCLOSURE POLICY LEFT
(PETITIONERS) WHOLLY FREE TO DISCLOSE OR NOT AS THEY PLEASED.  IN
CHOOSING TO ACT AS THEY DID, PETITIONERS, FAR FROM BEING THE VICTIMS OF
THAT POLICY, WERE VOLUNTEERS FOR ITS BENEFITS."  LABELING PETITIONERS
AS "VOLUNTEERS" PROVES NOTHING.  OF COURSE THEY WERE "VOLUNTEERS."  IT
WAS TO GET "VOLUNTEERS" THAT THE GOVERNMENT ESTABLISHED THE POLICY. 
PETITIONERS LEARNED THAT THEIR GOVERNMENT HAD PROMISED IMMUNITY FOR
DISCLOSURES AND THEY VOLUNTEERED TO MAKE THEM BECAUSE OF THAT PROMISE. 
BUT PETITIONERS' CONFESSIONS ARE NO MORE "VOLUNTARY" - IN THE SENSE OF
NOT BEING INDUCED BY A PROMISE - THAN THOSE OF SUSPECTS WHO CHOOSE TO
ACCEPT THE BENEFITS OF A POLICEMAN'S PROMISE OF IMMUNITY RATHER THAN
RUN THE RISK OF BEING CONVICTED ON INDEPENDENTLY SECURED EVIDENCE.  THE
COURT'S INTERPRETATION OF THE FIFTH AMENDMENT AS PERMITTING THE USE OF
CONFESSIONS OBTAINED BY PROMISES BECAUSE THOSE WHO RELIED ON THE
PROMISES WERE "VOLUNTEERS" EFFECTIVELY SCUTTLES THE PROTECTION OF THAT
AMENDMENT. 

WHILE THE COURT USES LANGUAGE WHICH PURPORTS TO GIVE THE SAME FULL
SCOPE THAT BRAM DID TO "JEALOUSLY GUARDED CONSTITUTIONAL PRINCIPLES" OF
THE FIFTH AMENDMENT, IT IS WITH REGRET THAT I AM COMPELLED TO SAY THAT
I THINK THE COURT PROMISES MORE THAN IT PERFORMS.  THE COURT TREATS THE
CASES OF ROGERS V. RICHMOND, 365 U.S. 534 (1961), AND BRAM V. UNITED
STATES, SUPRA, AS IF BOTH WERE RESTED ON THE FIFTH AMENDMENT.  ROGERS,
HOWEVER, RELATED TO A CONFESSION USED IN A STATE COURT, THE
ADMISSIBILITY OF WHICH DEPENDED ON THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  WHILE SOME OF US BELIEVE THAT THE DUE PROCESS
CLAUSE MADE THE FIFTH AMENDMENT APPLICABLE TO THE STATES, ROGERS WAS
OBVIOUSLY WRITTEN ON THE PREMISE THAT THE DUE PROCESS CLAUSE FORBIDS
THE USE OF CONFESSIONS ONLY IF THE CIRCUMSTANCES UNDER WHICH THEY ARE
USED ARE SO OFFENSIVE OR UNREASONABLE AS TO "SHOCK THE CONSCIENCE" OR
OFFEND "CIVILIZED STANDARDS OF DECENCY."  (FN18)  BRAM, ON THE OTHER
HAND, RESTED EXCLUSIVELY ON AN INTERPRETATION OF THE FIFTH AMENDMENT'S
SPECIFIC LANGUAGE FORBIDDING THE GOVERNMENT TO COMPEL A DEFENDANT TO BE
A WITNESS AGAINST HIMSELF.  THIS DISTINCTION IS IMPORTANT BECAUSE THE
MORE PRECISE WORDS OF THE FIFTH AMENDMENT AS CONSTRUED IN BRAM ARE A
FAR MORE CERTAIN SAFEGUARD AGAINST THE USE OF COMPELLED CONFESSIONS
THAN THE TRACTABLE AND PLIABLE PROTECTIONS WHICH THE COURT MAY OR MAY
NOT AFFORD UNDER THE DUE PROCESS "SHOCK THE CONSCIENCE" TEST.  THE
FIFTH AMENDMENT, AS CONSTRUED IN BRAM AND AS RECOGNIZED IN SMITH V.
UNITED STATES, SUPRA, FORBIDS THE USE OF CONFESSIONS OBTAINED BY
GOVERNMENTAL PROMISES OF IMMUNITY ON THE THEORY THAT SUCH PROMISES
ALONE RENDER CONFESSIONS INVOLUNTARY WITHOUT REQUIRING THE PRESENCE OF
ANY OTHER COERCIVE CIRCUMSTANCES.  (FN19)  MOREOVER, IF THE
ADMISSIBILITY OF THE CONFESSION IS TO BE MEASURED BY STANDARDS OF
DECENCY IT IS DIFFICULT TO RECONCILE WITH THOSE STANDARDS A HOLDING
THAT THE CONSTITUTION FORBIDS THE GOVERNMENT TO USE A CONFESSION
INDUCED BY THE PROMISE OF A POLICE OFFICER OR OTHER SUBORDINATE AGENT
BUT THAT IT IS WHOLLY PERMISSIBLE TO USE A CONFESSION INDUCED BY THE
SECRETARY OF THE TREASURY, ONE OF THE HIGHEST-RANKING MEN IN THE
GOVERNMENT.  I CANNOT DENY THAT SUCH A STANDARD FOR GOVERNMENTAL
CONDUCT SHOCKS MY CONSCIENCE.  THIS IS PARTICULARLY TRUE WHEN I
CONSIDER THE NATURE OF THE ASSURANCES SOLEMNLY GIVEN TO DELINQUENT
TAXPAYERS BY SECRETARY OF THE TREASURY FRED M. VINSON, WHO LATER BECAME
CHIEF JUSTICE OF THE UNITED STATES.  HE SAID THAT THE: 

"MAN WHO MAKES A DISCLOSURE BEFORE AN INVESTIGATION IS UNDER WAY
PROTECTS HIMSELF AND HIS FAMILY FROM THE STIGMA OF A FELONY
CONVICTION.  AND THERE IS NOTHING COMPLICATED ABOUT GOING TO A
COLLECTOR OR OTHER REVENUE OFFICER AND SIMPLY SAYING, 'THERE IS
SOMETHING WRONG WITH MY RETURN AND I WANT TO STRAIGHTEN IT OUT.'" 
(FN20) 

THIS SIMPLE DESCRIPTION OF ALL THE TAXPAYER HAD TO DO TO SAVE HIMSELF
AND HIS FAMILY FROM THE STIGMA OF A PROSECUTION IS NO LONGER
RECOGNIZABLE IN THE EX POST FACTO QUAGMIRE OF COMPLICATED RESTRICTIONS
AND CONDITIONS CREATED BY THE COURT TODAY. 

ANOTHER THEORY OF THE COURT, WHICH ALSO DEPARTS FROM THE BRAM CASE,
SEEMS TO BE THAT THERE WAS A CONSTRUCTIVE WITHDRAWAL OF THE PROMISED
IMMUNITY BECAUSE OF THE COURT'S FINDINGS THAT THE DEFENDANTS FAILED TO
COMPLY WITH THE PROMISE'S CONDITION OF COMPLETE TRUTHFULNESS.  WITH
THIS LEGAL FICTION AS A PREMISE, THE COURT MOVES INEXORABLY TO THE
CONCLUSION THAT THE CONFESSIONS WERE NOT INDUCED BY ANY PROMISE TO THE
DEFENDANTS.  NOTHING THAT I CAN FIND IN THE RECORD AFTER A CAREFUL
READING FURNISHES A BASIS FOR THE MOST ATTENUATED INFERENCE THAT THESE
DEFENDANTS WOULD HAVE COME FORWARD AND DISCLOSED ANY TAX DERELICTIONS
HAD THE GOVERNMENT NOT ANNOUNCED ITS VOLUNTARY DISCLOSURE POLICY AND
MADE IT CLEAR THAT THESE PARTICULAR DEFENDANTS COULD EXPECT ITS
BENEFITS.  THE COURT IS HERE DEPARTING FROM THE PROPER TEST AS LAID
DOWN IN BRAM FOR DETERMINING WHETHER A DISCLOSURE IS INDUCED BY A
GOVERNMENTAL PROMISE.  IT WAS THERE SAID THAT A PERSON IS
"INVOLUNTARILY IMPELLED TO MAKE A STATEMENT, WHEN BUT FOR THE IMPROPER
INFLUENCES HE WOULD HAVE REMAINED SILENT."  168 U.S., AT 549.  BUT FOR
THE IMMUNITY PROMISED TO THE DEFENDANTS IN THIS CASE, IT IS
INCONCEIVABLE THAT THEY WOULD HAVE VOLUNTEERED EVIDENCE UPON WHICH THEY
COULD BE TRIED AND PERHAPS CONVICTED OF TAX EVASION.  MOREOVER, EVERY
PROMISE HELD OUT BY THE GOVERNMENT IS INTENDED TO BE CONDITIONED ON
FULL AND TRUTHFUL DISCLOSURE.  THE MAJORITY'S RULE WOULD REQUIRE THAT
ANY CONFESSION OBTAINED BY A GOVERNMENTAL PROMISE BE ADMITTED IF IT
CONTAINS SOMETHING LESS THAN THE WHOLE TRUTH. 

WHAT THE COURT IS IN FACT HOLDING HERE IS THAT THE DEFENDANTS SHOULD
BE DENIED THEIR RIGHT TO HAVE THEIR CONFESSIONS EXCLUDED BECAUSE WHILE
THE CONFESSIONS WERE IN PART TRUTHFUL THEY WERE NOT TRUTHFUL AS A
WHOLE.  (FN21)  THIS COURT HAS HELD UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT THAT A CONFESSION'S TRUTH OR FALSITY IS NOT
RELEVANT TO THE QUESTION OF ITS ADMISSIBILITY.   (FN22) I DO NOT
BELIEVE THE COURT SHOULD ADOPT A NEW FIFTH AMENDMENT SHRINKING DEVICE
UNDER WHICH A DEFENDANT'S LACK OF "GOOD FAITH" AND FAILURE TO BE 100%
TRUTHFUL IN HIS INDUCED CONFESSION WORKS A FORFEITURE OF HIS FIFTH
AMENDMENT RIGHTS.  PROBABLY FEW CONFESSIONS IN CRIMINAL CASES ARE EVER
WHOLLY TRUTHFUL.  EVEN A CURSORY EXAMINATION OF SUCH CASES IN THIS AND
OTHER COUNTRIES WOULD SHOW THAT DEFENDANTS WHO CONFESS NEARLY ALWAYS
LAY ALL THE BLAME POSSIBLE ON SOMEONE ELSE OR IN SOME WAY SEEK TO
JUSTIFY THEIR CONDUCT IN WHOLE OR IN PART.  (FN23)  CERTAINLY THIS
COURT COULD NOT, CONSISTENTLY WITH ITS PRIOR CASES, HOLD ADMISSIBLE A
CONFESSION OBTAINED BY A PROMISE OR THREAT FROM A PERSON WHO CONFESSED
THAT HE HAD ASSAULTED ANOTHER BUT FALSELY AND FRAUDULENTLY CLAIMED THAT
HE HAD DONE SO IN SELF-DEFENSE.  NOR COULD IT ADMIT THE CONFESSION OF A
PERSON SUSPECTED OF RECEIVING STOLEN GOODS WHO, AFTER BEATINGS,
ADMITTED POSSESSION OF THE GOODS BUT FALSELY CLAIMED HE DID NOT KNOW
THEY WERE STOLEN.  YET, BY THE MAJORITY'S VIEW HERE, SUCH COMPELLED
CONFESSIONS WILL BE ADMISSIBLE BECAUSE, BEING PARTLY FALSE, THEY ARE
"FRAUDULENT," NOT MADE IN "GOOD FAITH."  THIS IS THE FIRST TIME, TO MY
KNOWLEDGE, THAT A DEFENDANT'S CONSTITUTIONAL RIGHT NOT TO BE COMPELLED
TO BE A WITNESS AGAINST HIMSELF HAS EVER BEEN CONDITIONED ON HIS
FAILURE TO COME INTO COURT WITH "CLEAN HANDS."  I CANNOT AGREE TO THIS
NEW DOCTRINE THAT A COMPELLED CONFESSION CAN BE ADMITTED BECAUSE PARTLY
UNTRUTHFUL.  SUCH A STEP BACKWARDS IS PARTICULARLY DANGEROUS BECAUSE OF
THE EASE WITH WHICH THIS CASE CAN BE EXTENDED TO ADMIT CONFESSIONS
OBTAINED NOT BY PHYSICAL VIOLENCE OR THREATS OF VIOLENCE BUT BY MORE
"CIVILIZED" TECHNIQUES OF COMPULSION, WHICH WE HAVE CHARACTERIZED AS
INHERENTLY COERCIVE (FN24) - TECHNIQUES OF PHYSICAL EXHAUSTION,
PSYCHOLOGICAL PRESSURE, TRICKERY, PROMISES OF LENIENCY, AND THE LIKE
WHICH SOMETIMES SUBTLY BUT ALWAYS CERTAINLY UNDERMINE AN ACCUSED'S
FREEDOM TO CONFESS OR NOT, AS HE CHOOSES.  (FN25) 

TO MY WAY OF THINKING, IT IS THE COURT ITSELF, INSTEAD OF THE
DEFENDANTS, WHICH TURNS "AN IMPORTANT CONSTITUTIONAL PRINCIPLE UPSIDE
DOWN."  IT DOES THIS BY PERMITTING THE GOVERNMENT TO PROVE ITS CASE
WITH CONFESSIONS OBTAINED BY SOLEMN PROMISES OF IMMUNITY ON THE THEORY
THAT THE CONFESSIONS WERE NOT GIVEN IN "GOOD FAITH" AND WERE THEREFORE
FRAUDULENT.  THIS CONCLUSION IS BASED ON A FINDING THAT, WHILE THE
DEFENDANTS CONFESSED A FAILURE TO REPORT INCOME, THEY FALSELY STATED AT
THE SAME TIME THAT THEIR RECEIPTS WERE OFFSET BY BUSINESS
EXPENDITURES.  IN SHORT, THE COURT BELIEVES THAT THE DEFENDANTS ARE
GUILTY OF THE TAX EVASION CHARGED AND THEREFORE HAVE FORFEITED THEIR
FIFTH AMENDMENT RIGHTS.  I CANNOT AGREE THAT THE COURT IS RIGHT IN
MAKING THE ADMISSIBILITY OF THE CONFESSIONS TURN ON THE GUILT OR
INNOCENCE OF THE DEFENDANTS.  THE DENIAL OF THE BENEFITS OF THE FIFTH
AMENDMENT ON THE COURT'S BELIEF THAT THE DEFENDANTS ARE GUILTY IS A
HIGH PRICE TO PAY FOR A CONVICTION AND A NEW, DANGEROUS INROAD ON THE
PROTECTIONS OF THAT AMENDMENT.  BUT IF THIS IS TO BE THE STANDARD, THEN
I CAN SEE NO ESCAPE FROM THE CONCLUSION THAT THE ADMISSIBILITY OF THE
CONFESSIONS SHOULD ULTIMATELY BE DETERMINED BY A JURY - NOT BY THE
JUDGES OF THIS OR ANY OTHER COURT.  (FN26) MOREOVER, IF IT BE ASSUMED
THAT THE COURT IS CORRECT IN CONCLUDING THAT THESE DEFENDANTS HAVE BEEN
GUILTY OF FRAUD OR PERJURY IN THEIR CONFESSIONS, THEN UNDER NORMAL
IDEAS OF DUE PROCESS THE PROPER PROCEDURE WOULD BE TO INDICT THEM ON
THESE CHARGES AND LET THEM BE TRIED.  BUT THIS COURT SHOULD NOT USE ITS
JUDGMENT OF THE DEFENDANTS' GUILT OF ANY CRIMES AS AN EXCUSE FOR
DEPRIVING THEM OF THE CONSTITUTIONAL GUARANTEES OF THE BILL OF RIGHTS. 

WHATEVER THE COURT'S REASONS FOR AFFIRMING THIS JUDGMENT, IT IS PLAIN
THAT SMITH V. UNITED STATES, SUPRA, HAS BEEN UNDERMINED, THE BRAM CASE
HAS BEEN PRACTICALLY REPUDIATED, AND, WORSE STILL, THE FIFTH
AMENDMENT'S PROHIBITION AGAINST INVOLUNTARY CONFESSIONS HAS BECOME FAR
LESS OF A CONSTITUTIONAL PROTECTION THAN IT EVER WAS BEFORE.  THERE IS
NO BASIS IN THE AMENDMENT ITSELF FOR REDUCING ITS SCOPE AS THE COURT
DOES TODAY, AND NO PRECEDENT, WEAK OR STRONG, OLD OR NEW, CAN BE FOUND
TO SUPPORT IT.  IT IS THIS COURT'S OWN INVENTION.  THIS COURT ALONE
THEREFORE, THIS 14TH DAY OF JANUARY 1963, IS ENTITLED TO WHATEVER
CREDIT IS DUE FOR ENFEEBLING OUR BILL OF RIGHTS IN THIS WAY.  IT EARNS
THAT CREDIT BY IGNORING THE WISE AND SOLEMN WARNING GIVEN IN BOYD V.
UNITED STATES, 116 U.S. 616, 635 (1886): 

"IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS MILDEST AND LEAST
REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET
THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT APPROACHES AND
SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE.  THIS CAN ONLY BE
OBVIATED BY ADHERING TO THE RULE THAT CONSTITUTIONAL PROVISIONS FOR THE
SECURITY OF PERSON AND PROPERTY SHOULD BE LIBERALLY CONSTRUED.  A CLOSE
AND LITERAL CONSTRUCTION DEPRIVES THEM OF HALF THEIR EFFICACY, AND
LEADS TO GRADUAL DEPRECIATION OF THE RIGHT, AS IF IT CONSISTED MORE IN
SOUND THAN IN SUBSTANCE.  IT IS THE DUTY OF COURTS TO BE WATCHFUL FOR
THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST ANY STEALTHY
ENCROACHMENTS THEREON." 

TO CONSTRUE THE FIFTH AMENDMENT'S PROHIBITION AGAINST THE USE OF
COMPELLED TESTIMONY AS NOT PROTECTING THESE CONFESSIONS INDUCED BY
PROMISES OF IMMUNITY IS CERTAINLY NO LIBERAL CONSTRUCTION OF THAT PART
OF OUR BILL OF RIGHTS.  I CANNOT AGREE TO THIS HOLDING BECAUSE I STILL
BELIEVE THAT CONSTITUTIONAL PROVISIONS DESIGNED TO PROTECT INDIVIDUAL
LIBERTY FROM OPPRESSIVE PROCEDURAL TACTICS BY GOVERNMENT SHOULD BE
LIBERALLY CONSTRUED IN ORDER TO PREVENT THEIR EROSION AND OBLITERATION
BY INSIDIOUS LEGISLATIVE, EXECUTIVE, AND JUDICIAL ENCROACHMENTS. 
(FN27)  THE COURT'S HOLDING TODAY WILL PROBABLY GIVE GREAT AID AND
COMFORT TO MANY EARNEST PEOPLE WHO SINCERELY BELIEVE THAT THIS
PROVISION OF THE FIFTH AMENDMENT AGAINST THE USE OF GOVERNMENT-INDUCED
CONFESSIONS IS AN UNWORTHY BARNACLE ON THE LAW, A SIXTEENTH CENTURY
STRAIT JACKET, WHICH SHOULD BE REMOVED AS AN OUTWORN TECHNICALITY OF A
BYGONE AGE.  EVEN IF THIS IS A SOUND VIEW, WHICH I DO NOT BELIEVE, IT
SHOULD NOT BE PUT INTO EFFECT BY JUDICIAL DECISIONS LIKE THIS GRADUALLY
NARROWING THE PROTECTIVE SCOPE OF THAT AMENDMENT BUT ONLY BY THE
CONSTITUTIONALLY ORDAINED AMENDING PROCESS SO THAT THE PEOPLE OF THIS
NATION CAN DETERMINE FOR THEMSELVES WHETHER THEY WISH TO ABANDON THIS
PART OF THEIR HERITAGE OF FREEDOM. 

                                             II. 

SINCE THE RECORD NOW CONTAINS NEW TESTIMONY OFFERED BY THE GOVERNMENT
ON REMAND WHICH THOROUGHLY DISCREDITS THE GOVERNMENT'S MAIN TRIAL
WITNESS UPON WHOSE TESTIMONY THE JURY'S VERDICT OF GUILTY IN LARGE PART
RESTED, THE DEFENDANTS ARE BEING DENIED THEIR CONSTITUTIONAL RIGHT TO A
FAIR JURY TRIAL BY THE FAILURE TO GRANT THEM A NEW TRIAL BEFORE A NEW
JURY WHICH CAN HEAR THIS NEW EVIDENCE IN DETERMINING THEIR GUILT OR
INNOCENCE. 

THIS EXTRAORDINARY SITUATION ARISES OUT OF THE FOLLOWING
CIRCUMSTANCES: 

SHOTWELL MANUFACTURING COMPANY WAS IN THE CANDY BUSINESS.  DURING THE
O.P.A. DAYS IT SOLD CANDY AT OVER-THE-CEILING PRICES TO COMPANIES
WHOLLY OR IN PART OPERATED BY ONE LUBBEN.  SHOTWELL DID NOT REPORT AS
INCOME THE AMOUNT BY WHICH THE PRICE IT RECEIVED EXCEEDED THE O.P.A.
CEILING.  THE DEFENDANTS CLAIMED IN THEIR CONFESSIONS AND AT THEIR
TRIAL THAT THEY HAD TO MAKE THESE OVER-CEILING CHARGES FOR CANDY TO
COMPENSATE FOR OVER-CEILING PRICES THEY PAID FOR CORN USED IN MAKING
CORN SYRUP AND OTHER BY-PRODUCTS NECESSARY TO THE OPERATION OF THEIR
CANDY FACTORY.  THE DEFENDANTS' DEFENSE, THEREFORE, WAS THAT ALL THE
OVERAGES PAID TO SHOTWELL BY LUBBEN AND HIS COMPANIES WERE PAID OUT BY
SHOTWELL FOR RAW CORN AND THAT, SINCE THE UNREPORTED INCOME WAS
VIRTUALLY OFFSET BY UNREPORTED EXPENSES, THEY WERE NOT GUILTY OF THE
TAX VIOLATIONS CHARGED.  THE TRIAL JUDGE AGREED WITH THIS VIEW OF THE
LAW AND CHARGED THE JURY THAT DEFENDANTS WERE NOT GUILTY IF THE
UNREPORTED INCOME FROM CANDY WAS OFFSET BY UNREPORTED EXPENDITURES FOR
CORN.  THE CRUCIAL QUESTIONS FOR THE JURY TO DETERMINE, THEREFORE, WERE
HOW MUCH MONEY WAS PAID BY LUBBEN FOR CANDY AND HOW MUCH WAS PAID BY
SHOTWELL FOR CORN.  THE GOVERNMENT RELIED CHIEFLY ON THE TESTIMONY AND
RECORDS OF LUBBEN HIMSELF TO SHOW HOW MUCH HE HAD PAID SHOTWELL.  THUS,
LUBBEN'S TRUTHFULNESS WAS A VITAL ISSUE FOR THE JURY TO CONSIDER.  THE
PROSECUTOR IN ADDRESSING THE JURY VOUCHED FOR THE RELIABILITY OF LUBBEN
AS AN "HONEST, HONORABLE AMERICAN CITIZEN," (FN28) THE TRIAL JUDGE IN
PASSING SENTENCE STATED THAT HE BELIEVED LUBBEN WAS TELLING THE TRUTH
AND THAT THE 12 JURORS HAD BELIEVED LUBBEN, AND MOST IMPORTANTLY, IT IS
CLEAR THAT LUBBEN'S TESTIMONY BEFORE THE JURY WAS SIGNIFICANT AND
WEIGHTY EVIDENCE TENDING TO PEG THE OVERPAYMENTS TO SHOTWELL AT A HIGH
LEVEL - WELL ABOVE THE AMOUNT DEFENDANTS CLAIMED THEY RECEIVED - AND
THUS BUTTRESS A JURY FINDING THAT MORE OVER-CEILING MONEY WAS PAID IN
FOR CANDY THAN WENT OUT FOR CORN. 

WHEN THIS CASE WAS BROUGHT HERE THE FIRST TIME BY THE GOVERNMENT TO
SECURE REVERSAL OF THE COURT OF APPEALS HOLDING THAT THE FIFTH
AMENDMENT RIGHTS OF THE DEFENDANTS HAD BEEN VIOLATED, THE CASE WAS
REMANDED BECAUSE THE GOVERNMENT PRESENTED "NEW EVIDENCE" IN THE FORM OF
AFFIDAVITS WHICH TENDED TO SHOW THAT THE INDIVIDUAL DEFENDANTS HAD
GIVEN PERJURIOUS TESTIMONY AT THE SUPPRESSION HEARING.  (FN29)  THE
DISTRICT COURT WAS INSTRUCTED TO HOLD NEW HEARINGS AND TO MAKE NEW
FINDINGS OF FACT ON THE TIMELINESS OF THE DEFENDANTS' DISCLOSURE OF
UNREPORTED INCOME AND ON THE "GOOD FAITH" OF THE DEFENDANTS IN SO
DISCLOSING.  AT THESE HEARINGS ON REMAND, THE GOVERNMENT'S STAR WITNESS
WAS ONE HUEBNER, A FORMER SHOTWELL OFFICER, WHO WAS SUPPOSED TO HAVE
RECEIVED MOST OF THE PAYMENTS MADE TO SHOTWELL BY LUBBEN.  HUEBNER
TESTIFIED THAT HE THOUGHT LUBBEN HAD "LIED ON THE STAND" AT THE TRIAL
BEFORE THE JURY.  SPECIFICALLY, HE STATED THAT WHEN LUBBEN RECOUNTED AN
INSTANCE IN WHICH HE HAD PAID ONE SHOTWELL OFFICER $49,000, "IT WAS A
MISTAKE ON LUBBEN'S PART," THAT THE OFFICER HAD NEVER RECEIVED
$49,000.  AGAIN, HUEBNER TESTIFIED THAT NO OVERAGES HAD BEEN PAID ON
SOME CHOCOLATE-COVERED NUTS ON WHICH LUBBEN HAD CLAIMED TO HAVE PAID
"IN THE NEIGHBORHOOD OF $40,000."  HUEBNER ALSO TESTIFIED, AND THERE IS
OTHER EVIDENCE IN THE RECORD TENDING TO SHOW, (FN30) THAT ONE TOBIAS
SAID HE HAD HELPED LUBBEN DOCTOR HIS BOOKS WHICH WERE USED AGAINST THE
DEFENDANTS AT THE TRIAL.  IN HIS WRITTEN OPINION, AT THE CONCLUSION OF
THE HEARING, THE JUDGE ADMITTED:    "  ...  THAT LUBBEN MAY HAVE
EXAGGERATED THE AMOUNTS OF THE PAYMENTS THAT HE AND HIS CONFEDERATES
MADE TO SHOTWELL IS ENTIRELY PROBABLE." 

ALTHOUGH THE JUDGE MADE THIS FINDING, AS THE RECORD COMPELLED HIM TO
FIND, HE NEVERTHELESS REFUSED TO GRANT THE DEFENDANTS A NEW TRIAL
BEFORE A NEW JURY BECAUSE HE BELIEVED THE OTHER EVIDENCE PROVED THE
DEFENDANTS GUILTY AND THAT THERE HAD THEREFORE BEEN NO "MISCARRIAGE OF
JUSTICE."    THE EFFECT OF THIS ACTION BY THE JUDGE WAS TO DENY THE
DEFENDANTS THE RIGHT TO HAVE THEIR GUILT OR INNOCENCE DETERMINED BY A
JURY FROM ALL THE EVIDENCE, INCLUDING THIS NEW EVIDENCE DISCOVERED BY
THE GOVERNMENT ITSELF WHICH SO SERIOUSLY IMPEACHES THE CREDIBILITY OF
THE MAIN WITNESS UPON WHOSE TESTIMONY THE JURY'S VERDICTS OF GUILTY
RESTED.  THOSE VERDICTS HAVE NOW BEEN SHOWN TO BE TAINTED, SOMEWHAT
LIKE THE VERDICT IN MESAROSH V. UNITED STATES, 352 U.S. 1 (1956). 
WHILE THAT CASE WAS PENDING HERE ON CERTIORARI, THE GOVERNMENT CALLED
OUR ATTENTION TO THE FACT THAT ONE OF THE SEVEN WITNESSES WHO HAD
TESTIFIED AGAINST THE DEFENDANTS HAD LIED IN OTHER PROCEEDINGS
SUBSEQUENT TO THE DEFENDANTS' CONVICTIONS.  THE GOVERNMENT INSISTED,
HOWEVER, THAT THE WITNESS' TESTIMONY HAD BEEN TRUTHFUL IN ITS CASE AND
ON THAT BASIS OBJECTED TO THE GRANTING OF A NEW TRIAL BUT RECOMMENDED A
REMAND TO THE TRIAL JUDGE TO DETERMINE WHETHER THE WITNESS HAD IN FACT
BEEN TRUTHFUL.  WE REJECTED THAT RECOMMENDATION AND HELD THAT THE NEW
EVIDENCE WHICH UNDERMINED THE CREDIBILITY OF THE WITNESS AND WHICH WAS
PRODUCED BY THE GOVERNMENT ITSELF REQUIRED A NEW TRIAL BECAUSE THE
DEFENDANTS' TRIAL HAD BECOME FATALLY TAINTED BY THESE NEW DISCLOSURES. 
IN THE PRESENT CASE, AFTER THE DEFENDANTS HAD BEEN CONVICTED, THE
GOVERNMENT CAME FORWARD WITH EVIDENCE TENDING TO SHOW NOT MERELY THAT
ONE AMONG MANY WITNESSES BUT THAT ITS MAJOR WITNESS HAD LIED, NOT IN
OTHER PROCEEDINGS BUT ON THE CENTRAL AND DETERMINATIVE ISSUE IN THIS
VERY CASE.  MOREOVER, UNLIKE MESAROSH, WE HAVE HERE AN ACKNOWLEDGMENT
BY THE DISTRICT JUDGE THAT THE TESTIMONY LUBBEN GAVE TO THE JURY WAS
PROBABLY EXAGGERATED.  IN ANOTHER CASE INVOLVING A CHARGE BY THE
DEFENDANTS THAT IT HAD DISCOVERED THAT THE GOVERNMENT'S WITNESSES WERE
COMPLETELY UNTRUSTWORTHY AND SHOULD BE ACCORDED NO CREDENCE, THIS COURT
REMANDED ON THESE MERE ALLEGATIONS IN ORDER TO ASSURE "FINDINGS UPON
UNTAINTED EVIDENCE," AND SAID: 

"THE UNTAINTED ADMINISTRATION OF JUSTICE IS CERTAINLY ONE OF THE MOST
CHERISHED ASPECTS OF OUR INSTITUTIONS.  ITS OBSERVANCE IS ONE OF OUR
PROUDEST BOASTS.  THIS COURT IS CHARGED WITH SUPERVISORY FUNCTIONS IN
RELATION TO PROCEEDINGS IN THE FEDERAL COURTS.  SEE MCNABB V. UNITED
STATES, 318 U.S. 332.  THEREFORE, FASTIDIOUS REGARD FOR THE HONOR OF
THE ADMINISTRATION OF JUSTICE REQUIRES THE COURT TO MAKE CERTAIN THAT
THE DOING OF JUSTICE BE MADE SO MANIFEST THAT ONLY IRRATIONAL OR
PERVERSE CLAIMS OF ITS DISREGARD CAN BE ASSERTED."  COMMUNIST PARTY OF
THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S. 115,
124 (1956).  COMPARE MOONEY V. HOLOHAN, 294 U.S. 103 (1935). 

I FEAR THAT THE COURT DOES NOT MANIFEST THAT SAME "FASTIDIOUS REGARD
FOR THE HONOR OF THE ADMINISTRATION OF JUSTICE" WHEN IT HOLDS TODAY
THAT THE DEFENDANTS ARE NOT ENTITLED TO A NEW TRIAL EVEN THOUGH THERE
ARE STRONG, COMPELLING REASONS TO BELIEVE THAT THE JURY IN THIS CASE
DID NOT BASE ITS GUILTY "FINDINGS UPON UNTAINTED EVIDENCE." 

IT IS TRUE THAT IN REFUSING TO ORDER A NEW TRIAL WHEN THIS POINT WAS
ARGUED TO IT, THE COURT OF APPEALS STATED THAT IT COULD NOT SAY THAT
THE DISTRICT JUDGE'S OBSERVATION THAT LUBBEN HAD EXAGGERATED AMOUNTED
TO A CHARGE OF PERJURY.  (FN31)  AND THIS COURT LIKEWISE PUTS EMPHASIS
ON THE CONCLUSION THAT THERE WAS NO ACTUAL FINDING OF PERJURY.  BUT
WHETHER LUBBEN ORIGINALLY TESTIFIED BEFORE THE JURY AS A WILLFUL AND
DELIBERATE PERJURER OR WHETHER HE SOMEHOW JUST INADVERTENTLY
"EXAGGERATED" THE AMOUNTS HE CLAIMED TO HAVE PAID THESE DEFENDANTS, THE
EFFECT ON THE JURY WAS THE SAME.  NO HUMAN BEING, NOT EVEN THE TRIAL
JUDGE, IS CAPABLE OF SAYING THAT THIS JURY WOULD HAVE CONVICTED THESE
DEFENDANTS HAD LUBBEN SWORN THE WHOLE TRUTH WHEN THE JURY LISTENED TO
HIM.  MOREOVER, IN MESAROSH THE SOLICITOR GENERAL CONCEDED ONLY THAT HE
BELIEVED THAT A WITNESS AGAINST DEFENDANTS HAD GIVEN TESTIMONY IN OTHER
PROCEEDINGS THAT WAS "UNTRUE."  THERE WAS NO EVIDENCE THAT THE WITNESS
HAD COMMITTED PERJURY, AND THE SOLICITOR GENERAL SPECIFICALLY REFUSED
TO CONCEDE THAT HE HAD.  THIS COURT NEVERTHELESS HELD THAT THE WITNESS'
TESTIMONY WAS TAINTED BECAUSE IT WAS UNTRUTHFUL, AND IT SET THE
CONVICTIONS ASIDE SO THAT THE DEFENDANTS COULD GET A NEW TRIAL.  (FN32)
THE COURT HERE IS THEREFORE WRONG IN STATING THAT THE MASAROSH
"CONVICTION MAY BE REGARDED OR IS CONCEDED TO HAVE RESTED ON PERJURED
TESTIMONY."  THE COURT, AS I SEE IT, IS SIMPLY REFUSING TO FOLLOW
MESAROSH WITHOUT SAYING WHY. 

IN REFUSING TO REMAND THIS CASE FOR A NEW TRIAL, THE COURT OF APPEALS
RELIED ON ITS CONCLUSION THAT THERE WAS ENOUGH OTHER INNOCENT EVIDENCE
IN THE RECORD TO SUPPORT THE CONVICTION AND ON ITS OBSERVATION THAT
CREDIBILITY OF LUBBEN WAS A QUESTION FOR THE JURY.  (FN33)  AS STATED
EARLIER, THE DISTRICT JUDGE ALSO HAD DENIED A NEW TRIAL BECAUSE HE WAS
SATISFIED THAT THE OTHER EVIDENCE SHOWED THAT THE DEFENDANTS WERE
GUILTY.  BUT AGAIN, WE HAVE HELD THAT "IT DOES NOT REMOVE THE TAINT FOR
A REVIEWING COURT TO FIND THAT THERE IS AMPLE INNOCENT TESTIMONY TO
SUPPORT THE  ...  FINDINGS."  (FN34)  FURTHER, IN MESAROSH WE SAID,
"THE DISTRICT JUDGE IS NOT THE PROPER AGENCY TO DETERMINE THAT THERE
WAS SUFFICIENT EVIDENCE AT THE TRIAL, OTHER THAN THAT GIVEN BY MASSEI,
TO SUSTAIN A CONVICTION OF ANY OF THE PETITIONERS.  ONLY THE JURY CAN
DETERMINE WHAT IT WOULD DO ON A DIFFERENT BODY OF EVIDENCE, AND THE
JURY CAN NO LONGER ACT IN THIS CASE."  (FN35)  FOR THIS REASON A NEW
TRIAL WAS ORDERED.  A NEW TRIAL IS NECESSARY IN THIS CASE AT WHICH A
JURY WILL BE PRIVILEGED TO HEAR ALL THE RELEVANT TESTIMONY AND WILL BE
FREE TO DETERMINE FROM AN HONEST RECORD WHETHER THESE DEFENDANTS ARE
GUILTY.  IT ADVANCES NOTHING TO SAY, AS THE COURT OF APPEALS SAID, THAT
CREDIBILITY IS FOR THE JURY.   IN THIS CASE, THE NEW EVIDENCE OFFERED
BY THE GOVERNMENT WITNESS CONCLUSIVELY DEMONSTRATES THAT EVEN THE JURY
COULD NOT PROPERLY WEIGH CREDIBILITY AT THE TIME OF THE TRIAL BECAUSE
THESE DAMAGING SWORN ACCUSATIONS AGAINST LUBBEN DID NOT EXIST AT THAT
TIME. 

PROPER RESPECT FOR THE FAIRNESS AND INTEGRITY OF OUR JUDICIAL SYSTEM
DEMANDS THAT THESE DEFENDANTS NOT BE ALLOWED TO STAND CONVICTED UPON A
RECORD CONTAINING EVIDENCE, THE TRUTHFULNESS OF WHICH HAS NOW BEEN SO
THOROUGHLY DISCREDITED.  NEITHER THE DISTRICT COURT, THE COURT OF
APPEALS, NOR THIS COURT SHOULD USURP THE CONSTITUTIONAL FUNCTION OF THE
JURY TO DETERMINE THE GUILT OR INNOCENCE OF THESE DEFENDANTS ON
UNTAINTED EVIDENCE.  THERE IS ONLY ONE WAY THE DEFENDANTS CAN BE GIVEN
THE CONSTITUTIONAL RIGHTS THAT HAVE BEEN DENIED THEM IN THIS CASE, AND
THAT IS TO REVERSE THE CASE AND REMAND FOR A NEW JURY TRIAL. 

MOREOVER, BY GRANTING A NEW TRIAL THE COURT WOULD NOT ONLY ASSURE
DEFENDANTS THE FAIR TRIAL TO WHICH THEY ARE ENTITLED BUT WOULD ALSO
MAKE IT UNNECESSARY FOR THE COURT TO REACH THE IMPORTANT, GRAVE, AND
DIFFICULT FIFTH AMENDMENT QUESTIONS (FN36) DISCUSSED IN PART I OF THIS
OPINION.  THE GENERAL RULE OF THIS COURT IS TO AVOID REACHING SUCH
CONSTITUTIONAL ISSUES WHEN A CASE CAN BE FAIRLY DISPOSED OF ON
ALTERNATIVE GROUNDS.  (FN37)  ALTHOUGH I HAVE SOMETIMES THOUGHT THE
RULE HAS BEEN CARRIED TO "A WHOLLY UNJUSTIFIABLE EXTREME," (FN38) THIS
CASE, IT SEEMS TO ME, OFFERS TO THE STRONG ADHERENTS OF THAT RULE AN
IDEAL OCCASION FOR ITS APPLICATION IN THE INTERESTS OF JUSTICE, WHICH
WOULD REQUIRE THAT A NEW TRIAL BE GRANTED. 

FN1  HEARINGS ON PROPOSALS FOR STRENGTHENING TAX ADMINISTRATION
BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON WAYS AND MEANS, 82D
CONG., 2D SESS. 143-144 (1952) (STATEMENT OF SECRETARY VINSON,
REPRINTED FROM WASHINGTON POST, AUG. 21, 1945).  SOME FORM OF VOLUNTARY
DISCLOSURE POLICY HAD EXISTED SINCE 1919.  IN 1945, HOWEVER, THE POLICY
TOOK THE FORM OF A CLEAR AND DIRECT INVITATION TO TAXPAYERS TO COME
FORWARD AND DISCLOSE THEIR TAX DERELICTIONS IN RELIANCE ON THE
GOVERNMENT'S UNEQUIVOCAL PROMISE OF IMMUNITY.  HEARINGS, SUPRA, AT 78
79 (PRESS RELEASE OF TREASURY DEPARTMENT, DEC. 11, 1951).  SECRETARY
VINSON'S STATEMENT "CRYSTALLIZED" THE EARLIER PRACTICE INTO "DEFINITE
POLICY," ACCORDING TO TURNER L. SMITH, CHIEF OF CRIMINAL TAX SECTION,
DEPT. OF JUSTICE, IN AN ADDRESS REPRINTED IN SECTION OF TAXATION, ABA,
SYMPOSIUM ON PROCEDURE IN TAX FRAUD CASES 29, 38-39 (1951). 

FN2  UNITED STATES V. SHOTWELL MFG. CO., 225 F.2D 394 (C.A. 7TH CIR.
1955). 

FN3  355 U.S. 233 (1957). 

FN4  287 F.2D 667 (C.A. 7TH CIR. 1961). 

FN5  225 F.2D 394, 406 (C.A. 7TH CIR. 1955). 

FN6  UNITED STATES V. CARIGNAN, 342 U.S. 36, 41 (1951). 

FN7  WILSON V. UNITED STATES, 162 U.S. 613, 622 (1896). 

FN8  168 U.S., AT 548, 549, 550, 558, 562. 

FN9  ID., AT 548. 

FN10 ID., AT 554. 

FN11  ID., AT 556. 

FN12  SEE, E.G., HARDY V. UNITED STATES, 186 U.S. 224, 229 (1902);
WAN V. UNITED STATES, 266 U.S. 1, 15 (1924); LISENBA V. CALIFORNIA, 314
U.S. 219, 236 N. 16 (1941); WALEY V. JOHNSTON, 316 U.S. 101, 104
(1942); ASHCRAFT V. TENNESSEE, 322 U.S. 143, 154 N. 9 (1944); SMITH V.
UNITED STATES, 348 U.S. 147, 150 (1954); GALLEGOS V. COLORADO, 370 U.S.
49, 52 (1962).  BUT SEE STEIN V. NEW YORK, 346 U.S. 156, 190 N. 35
(1953).  THE GENERAL VALIDITY OF BRAM HAD BEEN ASSUMED IN MANY OTHER
CASES.  SEE MAPP V. OHIO, 367 U.S. 643, 656-657 (1961), WHERE THE COURT
QUOTED BRAM IN STATING, "WE FIND THAT, AS TO THE FEDERAL GOVERNMENT,
THE FOURTH AND FIFTH AMENDMENTS AND, AS TO THE STATES, THE FREEDOM FROM
UNCONSCIONABLE INVASIONS OF PRIVACY AND THE FREEDOM FROM CONVICTIONS
BASED UPON COERCED CONFESSIONS DO ENJOY AN 'INTIMATE RELATION' IN THEIR
PERPETUATION OF 'PRINCIPLES OF HUMANITY AND CIVIL LIBERTY (SECURED)
...  ONLY AFTER YEARS OF STRUGGLE.'" 

FN13  SEE 28 L. ED. 262, NOTE.  CASES COLLECTED, 20 AM. JUR., EVID.,
SECS. 506, 511; 18 L.R.A. (N.S.)  820-824; 50 L.R.A. (N.S.)  1086
1087. 

FN14  IT IS INTERESTING TO NOTE THAT IN THE PROCEEDINGS ON REMAND,
GOVERNMENT COUNSEL, IN CALLING THE WITNESS HUEBNER WHO TESTIFIED AS TO
MATTERS THAT INCRIMINATED HIM, WAS EAGER TO HAVE HUEBNER STATE THAT NO
ONE CONNECTED WITH THE FEDERAL GOVERNMENT HAD THREATENED OR COERCED HIM
OR MADE HIM "ANY PROMISES OF REWARD OR IMMUNITY." 

FN15  225 F.2D, AT 400. 

FN16  CF. SMITH V. O'GRADY, 312 U.S. 329 (1941). 

FN17  ACCORDING TO THE CHIEF DEPUTY COLLECTOR'S TESTIMONY, ONE OF THE
DEFENDANTS IN THIS CASE WAS PARTICULARLY WORRIED ABOUT THE PUBLICITY
THAT WOULD ATTEND A CRIMINAL CASE BECAUSE HE HAD TWO BOYS IN SCHOOL. 
IT WAS AT THIS POINT THAT THE COLLECTOR ASSURED HIM THAT THIS WAS A
CIVIL CASE AND "HE HAD NOTHING TO WORRY ABOUT SO FAR AS PUBLICITY WAS
CONCERNED." 

FN18  CF. REID V. COVERT, 354 U.S. 1, 41, 44, 65, 77
(1957)(CONCURRING OPINIONS); ROCHIN V. CALIFORNIA, 342 U.S. 165, 169
(1952); ADAMSON V. CALIFORNIA, 332 U.S. 46, 59, 67-68 (1947)
(CONCURRING OPINION).  BUT CF. MAPP V. OHIO, 367 U.S. 643, 661, 666
(1961)(CONCURRING OPINION); KINSELLA V. UNITED STATES EX REL.
SINGLETON, 361 U.S. 234, 246-247 (1960). 

FN19  SIMILARLY THERE CAN BE NO QUESTION OF "BALANCING" FIFTH
AMENDMENT RIGHTS AGAINST ANY KIND OF "COMPETING INTERESTS."  SEE
FRANTZ, "THE FIRST AMENDMENT IN THE BALANCE," 71 YALE L.J.  1424, 1436
1437 (1962). 

FN20  HEARINGS, SUPRA NOTE 1, AT 144. 

FN21  NOWHERE IS THIS MADE MORE CLEAR THAN IN THE GOVERNMENT'S
ARGUMENT IN ITS BRIEF, IN EFFECT ADOPTED BY THE COURT, THAT: 

"IT IS INCONCEIVABLE  ...  THAT THE RULE BARRING THE USE OF
INVOLUNTARY CONFESSIONS SHOULD OPERATE TO EXCLUDE A DECLARATION IN
WHICH DAMAGING ADMISSIONS ARE INEXTRICABLY INTERTWINED WITH FALSE SELF
SERVING EXCULPATORY STATEMENTS  ...  ."  BRIEF FOR THE UNITED STATES,
P. 42. 

FN22  ROGERS V. RICHMOND, 365 U.S. 534, 543-545 (1961).  SEE
BLACKBURN V. ALABAMA, 361 U.S. 199, 206 (1960); SPANO V. NEW YORK, 360
U.S. 315, 324 (1959); PAYNE V. ARKANSAS, 356 U.S. 560, 567-568 (1958);
CF. LEE V. MISSISSIPPI, 332 U.S. 742, 745-746 (1948); ASHCRAFT V.
TENNESSEE, 322 U.S. 143, 152 N. 7 (1944); WHITE V. TEXAS, 310 U.S. 530,
531-532 (1940).  WHILE THESE CASES WERE STATE CASES DECIDED UNDER THE
FOURTEENTH AMENDMENT, THE FIFTH AMENDMENT'S SPECIFIC PROHIBITION
AGAINST THE USE OF COMPELLED TESTIMONY SHOULD CERTAINLY BE NO LESS
COMPREHENSIVE THAN THE BAR AGAINST A STATE'S USE OF SUCH TESTIMONY
UNDER THE FOURTEENTH. 

COMPARE MAPP V. OHIO, 367 U.S. 643, 656 (1961)(SEARCH AND SEIZURE). 

FN23  SEE, FOR EXAMPLE, THE CONFESSION IN RECK V. PATE, 367 U.S. 433,
438 (1961). 

FN24  SEE ASHCRAFT V. TENNESSEE, 322 U.S. 143, 154 (1944). 

FN25  SEE, E.G., CHAMBERS V. FLORIDA, 309 U.S. 227 (1940); HALEY V.
OHIO, 332 U.S. 596 (1948); LEYRA V. DENNO, 347 U.S. 556 (1954); FIKES
V. ALABAMA, 352 U.S. 191 (1957); SPANO V. NEW YORK, 360 U.S. 315
(1959); BLACKBURN V. ALABAMA, 361 U.S. 199 (1960); GALLEGOS V.
COLORADO, 370 U.S. 49 (1962). 

FN26  I HAVE PREVIOUSLY EXPRESSED THE VIEW, TO WHICH I ADHERE, THAT
THE ADMISSIBILITY OF ALL CONFESSIONS SHOULD BE A JURY QUESTION.  UNITED
STATES V. SHOTWELL MFG. CO., 355 U.S. 233, 246, 248-250
(1957)(DISSENTING OPINION). 

FN27  SEE HOFFMAN V. UNITED STATES, 341 U.S. 479, 486 (1951); GOULED
V. UNITED STATES, 255 U.S. 298, 303-304 (1921); COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 562 (1892).    FN28  "I WILL TELL YOU WHO
DAVID LUBBEN IS.  HE IS AN HONEST, HONORABLE AMERICAN CITIZEN, WHO IS
DOWN HERE DOING HIS DUTY, JUST THE WAY YOU PEOPLE ARE DOING YOUR
DUTY."  THIS IS IN MARKED CONTRAST TO A GOVERNMENT PROSECUTOR'S
ARGUMENT TO THE JURY IN ANOTHER CASE, WHERE HE SAID THAT LUBBEN WAS "A
PERJURER AND A BLACK MARKETEER AND PRACTICALLY ANYTHING ELSE YOU WANT
TO TALK ABOUT."  R. 2589, GIGLIO V. UNITED STATES, 355 U.S. 339
(1958). 

FN29  355 U.S. 233 (1957). 

FN30  R. 2556-2557, 2678-2679. 

FN31  287 F.2D 667, 675 (C.A. 7TH CIR. 1961).    FN32  352 U.S., AT 9
12. 

FN33  287 F.2D, AT 675. 

FN34  COMMUNIST PARTY OF THE UNITED STATES V. SUBVERSIVE ACTIVITIES
CONTROL BOARD, 351 U.S. 115, 124 (1956). 

FN35  352 U.S., AT 12. 

FN36  SEE UNITED STATES V. SHOTWELL MFG. CO., 355 U.S. 233, 246, 247
(1957) (DISSENTING OPINION). 

FN37  E.G., COMMUNIST PARTY, U.S.A., V. CATHERWOOD, 367 U.S. 389, 392
395 (1961); UNITED STATES V. INTERNATIONAL UNION UNITED AUTOMOBILE
WORKERS, 352 U.S. 567, 589-592 (1957).  SEE ALSO MAPP V. OHIO, 367 U.S.
643, 672, 675-677 (1961)(DISSENTING OPINION). 

FN38  CLAY V. SUN INS. OFFICE LTD., 363 U.S. 207, 213
(1960)(DISSENTING OPINION). 
..END :












CLEARY V. BOLGER 371 U.S. 392 


NO. 57.  ARGUED NOVEMBER 14-15, 1962.  - DECIDED JANUARY 14, 1963.  -
293 F.2D 368, REVERSED. 


WHILE A STATE CRIMINAL PROSECUTION AND A STATE ADMINISTRATIVE
PROCEEDING FOR REVOCATION OF HIS LICENSE WERE PENDING AGAINST
RESPONDENT, HE BROUGHT THIS SUIT IN A FEDERAL DISTRICT COURT TO ENJOIN
A STATE OFFICER AND CERTAIN FEDERAL OFFICERS FROM TESTIFYING IN EITHER
PROCEEDING ABOUT INCRIMINATING STATEMENTS ELICITED FROM RESPONDENT
WHILE HE WAS BEING ILLEGALLY DETAINED AND INTERROGATED BY THE FEDERAL
OFFICERS.  THE STATE OFFICER HAD BEEN PRESENT DURING PART OF THE
INTERROGATION BUT HAD NOT PARTICIPATED THEREIN.  FINDING THAT THE
INCRIMINATING STATEMENTS HAD BEEN PROCURED BY THE FEDERAL OFFICERS IN
VIOLATION OF FEDERAL RULE OF CRIMINAL PROCEDURE 5(A), THE COURT GRANTED
THE INJUCTION AGAINST THEM AND THE STATE OFFICER.  ONLY THE STATE
OFFICER SOUGHT REVIEW IN THIS COURT.  HELD:  THE INJUNCTION AGAINST THE
STATE OFFICER WAS IMPROVIDENTLY GRANTED.  STEFANELLI V. MINARD, 342
U.S. 117, FOLLOWED.  REA V. UNITED STATES, 350 U.S. 214,
DISTINGUISHED.  PP. 392-401. 

CLEARY V. BOLGER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE DRAWS IN QUESTION THE PROPRIETY OF THE ISSUANCE OF A
FEDERAL INJUNCTION RESTRAINING PETITIONER, A STATE OFFICER, FROM GIVING
EVIDENCE IN A PENDING STATE CRIMINAL PROSECUTION AND A STATE
ADMINISTRATIVE PROCEEDING. 

THE FACTS, AS FOUND BY THE TWO LOWER COURTS, ARE AS FOLLOWS.  ABOUT
8:30 ONE SATURDAY MORNING IN SEPTEMBER 1959 FEDERAL CUSTOMS OFFICERS
OBSERVED RESPONDENT, A HIRING AGENT AND LONGSHOREMAN LICENSED BY THE
WATERFRONT COMMISSION OF NEW YORK HARBOR, ENTER A DESERTED PIER, CARRY
OUT A CARDBOARD CARTON, AND PLACE IT IN A CAR PARKED AT THE PIER
ENTRANCE.  THE OFFICERS, WHO WERE CONCERNED ABOUT THE RECENT FREQUENCY
OF THEFTS, PARTICULARLY OF LIQUOR, IN THE NEW YORK WATERFRONT AREA,
FOLLOWED RESPONDENT'S CAR FOR A SHORT DISTANCE AND THEN ORDERED HIM TO
STOP.  A SEARCH OF THE AUTOMOBILE REVEALED THAT THE CARDBOARD CARTON
CONTAINED ONLY EMPTY SODA BOTTLES, BUT THAT THE GLOVE COMPARTMENT
CONTAINED A NUMBER OF SPARK PLUGS AND WINDSHIELD WIPERS, SOME OF WHICH
WERE STAMPED "MADE IN ENGLAND."  RESPONDENT WAS ASKED WHETHER HE HAD
OBTAINED ANY LIQUOR FROM THE PIERS, AND HE ADMITTED THAT HE HAD SIX OR
EIGHT BOTTLES AT HOME WHICH HE HAD PURCHASED FROM MEMBERS OF SHIPS'
CREWS WHO IN TURN, HE SAID, HAD BOUGHT THEM FROM SHIPS' STORES. 

THE AGENTS THEN TOOK RESPONDENT INTO CUSTODY; HE WAS BROUGHT TO THE
CUSTOMS OFFICE, DENIED PERMISSION TO USE THE TELEPHONE, AND QUESTIONED
UNTIL SHORTLY BEFORE 11 A.M.  DURING THIS PERIOD HE SIGNED A DOCUMENT
CONSENTING TO A SEARCH OF HIS HOME BY THE CUSTOMS OFFICERS, WHO HAD
TOLD HIM THAT THE CONSENT FORM WAS UNNECESSARY SINCE THEY ALREADY HAD
ENOUGH INFORMATION TO WARRANT A SEARCH BUT THAT HE MIGHT AS WELL SIGN
IT TO SAVE THEM TROUBLE.  HE HAD AT FIRST REFUSED TO SIGN SUCH A
CONSENT WITHOUT CONSULTING A LAWYER.  THE AGENTS THEN DROVE RESPONDENT
TO HIS HOME IN NEW JERSEY AND, WITHOUT A SEARCH WARRANT, GAVE IT A
THOROUGH SEARCH, WHICH UNCOVERED SOME 75 BOTTLES OF LIQUOR, A
STENORETTE TAPE RECORDING MACHINE MADE IN WEST GERMANY, AND VARIOUS
OTHER ITEMS OF APPARENT FOREIGN ORIGIN, SUCH AS PERFUMES, LINENS,
COSTUME JEWELRY, ETC.  THESE ARTICLES, THOUGHT TO HAVE BEEN ILLEGALLY
ACQUIRED, WERE BROUGHT BACK TO CUSTOMS HEADQUARTERS IN NEW YORK, WHERE,
STARTING ABOUT 4 P.M., RESPONDENT WAS AGAIN QUESTIONED. 

BY THIS TIME THE WATERFRONT COMMISSION, A BI-STATE AGENCY OF NEW YORK
AND NEW JERSEY (FN1) WHICH WORKED IN CLOSE COOPERATION WITH THE CUSTOMS
SERVICE IN MATTERS OF LAW ENFORCEMENT ON THE WATERFRONT, HAD BEEN
INFORMED OF RESPONDENT'S ARREST, AND TWO COMMISSION DETECTIVES WERE
PRESENT WHEN THE INTERROGATION RESUMED.  PETITIONER CLEARY WAS ONE OF
THESE DETECTIVES.  AFTER RESPONDENT HAD REVEALED THAT HE MAINTAINED A
TOOL ROOM IN THE BASEMENT OF AN APARTMENT HOUSE IN NEW YORK, PETITIONER
AND A CUSTOMS OFFICER ACCOMPANIED RESPONDENT TO THIS TOOL ROOM, BUT
NOTHING SUSPICIOUS WAS DISCOVERED AND THEY RETURNED TO CUSTOMS
HEADQUARTERS AT 5:45 P.M. 

AFTER HE HAD BEEN TOLD THAT HE DID NOT HAVE TO MAKE A STATEMENT,
RESPONDENT WAS SWORN AND INTERROGATED BY CUSTOMS OFFICERS IN THE
PRESENCE OF A CUSTOMS SERVICE REPORTER, WHO RECORDED THE QUESTIONS AND
ANSWERS VERBATIM.  PETITIONER WAS PRESENT AND COULD HAVE PARTICIPATED
IN THE QUESTIONING, THOUGH HE DID NOT DO SO.  (FN2)  RESPONDENT
ADMITTED THAT WITH THE EXCEPTION OF A FEW ITEMS THAT HE HAD PURCHASED
FROM CREW MEMBERS MOST OF THE ARTICLES SEIZED AT HIS HOME HAD BEEN
TAKEN BY HIM FROM PIERS WHERE HE WORKED.  HE ALSO SAID THAT HE HAD
TAKEN THE STENORETTE TAPE RECORDER FROM A LIGHTER MOORED AT ONE OF THE
PIERS.  AT 7:30 P.M. RESPONDENT WAS RELEASED. 

NO CHARGES WERE LODGED AGAINST RESPONDENT BY THE FEDERAL
AUTHORITIES.  BUT A MONTH LATER HE WAS ARRESTED BY THE NEW YORK CITY
POLICE ON A CHARGE OF GRAND LARCENY FOR THE THEFT OF THE STENORETTE
TAPE RECORDER, AND SHORTLY THEREAFTER THE WATERFRONT COMMISSION
TEMPORARILY SUSPENDED HIS LICENSES AS HIRING AGENT AND LONGSHOREMAN. 
THE CRIMINAL CHARGE WAS SUBSEQUENTLY REDUCED TO PETIT LARCENY AND
SCHEDULED FOR TRIAL IN THE COURT OF SPECIAL SESSIONS OF NEW YORK CITY. 
A HEARING LOOKING TO THE REVOCATION OF RESPONDENT'S LICENSES WAS
DEFERRED BY THE WATERFRONT COMMISSION PENDING THE OUTCOME OF THE
CRIMINAL CASE. 

AFTER THE PETIT LARCENY CHARGE HAD BEEN SET FOR TRIAL, RESPONDENT
INSTITUTED THE PRESENT ACTION IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK SEEKING TO ENJOIN THE FEDERAL CUSTOMS
OFFICERS AND PETITIONER FROM USING IN EVIDENCE ANY OF THE SEIZED
PROPERTY OR HIS INCRIMINATING STATEMENT, AND FROM TESTIFYING WITH
RESPECT THERETO, IN THE STATE CRIMINAL TRIAL OR WATERFRONT COMMISSION
PROCEEDING.  HE ALSO SOUGHT RETURN OF THE SEIZED PROPERTY.  (FN3)  THE
BASIS FOR THE ACTION WAS THE CLAIM THAT THE SEIZED PROPERTY AND THE
INCRIMINATING STATEMENT WERE THE PRODUCTS OF ILLEGAL CONDUCT ON THE
PART OF THE FEDERAL OFFICERS. 

THE DISTRICT COURT GRANTED SUCH RELIEF, LIMITED HOWEVER, TO THE
PROPERTY SEIZED AT RESPONDENT'S HOME, TO THE INCRIMINATORY STATEMENT
MADE FOLLOWING HIS ARREST, AND TO TESTIMONY RESPECTING THESE MATTERS. 
(FN4)  IT HELD THAT THE SEARCH AND SEIZURE AT RESPONDENT'S HOME
VIOLATED RULE 41(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, (FN5)
IN THAT IT HAD BEEN MADE WITHOUT A SEARCH WARRANT, AND THAT HIS
INCRIMINATING STATEMENT HAD BEEN PROCURED IN VIOLATION OF RULE 5(A) OF
THOSE RULES, (FN6) IN THAT RESPONDENT HAD NOT BEEN TAKEN BEFORE A
UNITED STATES COMMISSIONER WITHIN A REASONABLE TIME AFTER HIS ARREST,
AND WAS ALSO "THE RESULT  ...  OF THE ILLEGAL SEARCH AND SEIZURE."  IN
CONSEQUENCE OF THESE ILLEGALITIES AN INJUNCTION AGAINST THE FEDERAL
OFFICERS WAS THOUGHT TO FOLLOW.  AN INJUNCTION AGAINST PETITIONER WAS
DEEMED NECESSARY TO MAKE THE INJUNCTION AGAINST THE FEDERAL OFFICIALS
EFFECTIVE.  189 F. SUPP. 237.  THE COURT OF APPEALS AFFIRMED BY A
DIVIDED VOTE.  293 F.2D 368.  SINCE THE USE OF FEDERAL EQUITY POWER IN
THE PREMISES PRESENTED IMPORTANT QUESTIONS TOUCHING UPON FEDERAL-STATE
RELATIONSHIPS IN THE REALM OF STATE CRIMINAL PROSECUTIONS, WE BROUGHT
THE CASE HERE.  368 U.S. 984. 

ACCEPTING FOR PRESENT PURPOSES THE HOLDINGS OF THE TWO LOWER COURTS
WITH RESPECT TO THE CONDUCT AND ENJOINABILITY OF THE FEDERAL OFFICERS,
WE NEVERTHELESS CONCLUDE THAT THE INJUNCTION AGAINST THIS PETITIONER
WAS IMPROVIDENTLY ISSUED.  (FN7) 

COURTS OF EQUITY TRADITIONALLY HAVE REFUSED, EXCEPT IN RARE
INSTANCES, TO ENJOIN CRIMINAL PROSECUTIONS.  THIS PRINCIPLE "IS
IMPRESSIVELY REINFORCED WHEN NOT MERELY THE RELATIONS BETWEEN
COORDINATE COURTS BUT BETWEEN COORDINATE POLITICAL AUTHORITIES ARE IN
ISSUE."  STEFANELLI V. MINARD, 342 U.S. 117, 120.  IT HAS BEEN
MANIFESTED IN NUMEROUS DECISIONS OF THIS COURT INVOLVING A STATE'S
ENFORCEMENT OF ITS CRIMINAL LAW.  E.G., PUGACH V. DOLLINGER, 365 U.S.
458; DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157; WATSON V. BUCK, 313
U.S. 387; BEAL V. MISSOURI PAC. R. CO., 312 U.S. 45.  THE
CONSIDERATIONS THAT HAVE PROMPTED DENIAL OF FEDERAL INJUNCTIVE RELIEF
AFFECTING STATE PROSECUTIONS WERE EPITOMIZED IN THE STEFANELLI CASE, IN
WHICH THIS COURT REFUSED TO SANCTION AN INJUNCTION AGAINST STATE
OFFICIALS TO PREVENT THEM FROM USING IN A STATE CRIMINAL TRIAL EVIDENCE
SEIZED BY STATE POLICE IN ALLEGED VIOLATION OF THE FOURTEENTH
AMENDMENT: 

"WE WOULD EXPOSE EVERY STATE CRIMINAL PROSECUTION TO INSUPPORTABLE
DISRUPTION.  EVERY QUESTION OF PROCEDURAL DUE PROCESS OF LAW - WITH ITS
FAR-FLUNG AND UNDEFINED RANGE - WOULD INVITE A FLANKING MOVEMENT
AGAINST THE SYSTEM OF STATE COURTS BY RESORT TO THE FEDERAL FORUM, WITH
REVIEW IF NEED BE TO THIS COURT, TO DETERMINE THE ISSUE.  ASSERTED
UNCONSTITUTIONALITY IN THE IMPANELING AND SELECTION OF THE GRAND AND
PETIT JURIES, IN THE FAILURE TO APPOINT COUNSEL, IN THE ADMISSION OF A
CONFESSION, IN THE CREATION OF AN UNFAIR TRIAL ATMOSPHERE, IN THE
MISCONDUCT OF THE TRIAL COURT - ALL WOULD PROVIDE READY OPPORTUNITIES,
WHICH CONSCIENTIOUS COUNSEL MIGHT BE BOUND TO EMPLOY, TO SUBVERT THE
ORDERLY, EFFECTIVE PROSECUTION OF LOCAL CRIME IN LOCAL COURTS.  TO
SUGGEST THESE DIFFICULTIES IS TO RECOGNIZE THEIR SOLUTION."  342 U.S.,
AT 123-124. 

THE TWO COURTS BELOW RECOGNIZED THE VALIDITY OF THESE CONSIDERATIONS
BUT THOUGHT THAT INJUNCTIVE RELIEF WAS NONETHELESS REQUIRED BY REA V.
UNITED STATES, 350 U.S. 214.  IN THAT CASE THE ACCUSED HAD BEEN
INDICTED IN A FEDERAL COURT AND HAD MOVED FOR AN ORDER UNDER RULE 41(E)
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE SUPPRESSING THE USE IN
EVIDENCE OF CERTAIN NARCOTICS SEIZED UNDER A SEARCH WARRANT INVALID ON
ITS FACE.  THE DISTRICT COURT GRANTED THE MOTION.  DESPITE THE ORDER,
HOWEVER, ONE OF THE FEDERAL OFFICERS WHO HAD SECURED THE SEARCH WARRANT
CAUSED THE ACCUSED TO BE REARRESTED AND CHARGED, IN A STATE COURT, WITH
POSSESSION OF THE SAME NARCOTICS IN VIOLATION OF A STATE STATUTE, AND
THREATENED TO MAKE THE STATE'S CASE BY HIS TESTIMONY BASED ON THE
EVIDENCE SEIZED UNDER THE ILLEGAL FEDERAL WARRANT.  THE ACCUSED THEN
MOVED IN THE FEDERAL DISTRICT COURT TO ENJOIN THE FEDERAL AGENT FROM
TESTIFYING IN THE STATE PROCEEDING.  THIS COURT, INVOKING ITS
"SUPERVISORY POWERS OVER FEDERAL LAW ENFORCEMENT AGENCIES" (ID., AT 216
217), REVERSED THE DENIAL OF AN INJUNCTION AND DIRECTED THAT THE
REQUESTED RELIEF BE GRANTED IN ORDER TO PREVENT FRUSTRATION OF THE
FEDERAL RULES UNDER WHICH SUPPRESSION HAD BEEN ORDERED.  (FN8)  BOTH
LOWER COURTS IN THE PRESENT CASE EVIDENTLY TOOK REA TO MEAN THAT
FEDERAL OFFICERS TRANSGRESSING THE FEDERAL RULES OF CRIMINAL PROCEDURE
MAY ALWAYS BE ENJOINED FROM UTILIZING THEIR ILL-GOTTEN GAINS IN A STATE
CRIMINAL PROSECUTION AGAINST THE VICTIM OR FROM DIRECTLY OR INDIRECTLY
PASSING THEM ALONG TO STATE AUTHORITIES FOR SUCH USE.  (FN9) 

WE NEED NOT, HOWEVER, DETERMINE IN THIS INSTANCE THE CORRECTNESS OF
THE LOWER COURTS' BROAD READING OF THE REA CASE, CF. WILSON V.
SCHNETTLER, 365 U.S. 381, ON THE BASIS OF WHICH THE FEDERAL OFFICERS
HERE WERE ENJOINED.  (FN10)  FOR IN ANY EVENT REA DOES NOT SUPPORT THE
INJUNCTION AGAINST THIS PETITIONER, A STATE OFFICIAL.  THE COURT IN REA
WAS AT SPECIAL PAINS TO POINT OUT THAT THE FEDERAL COURTS WERE NOT
THERE "ASKED TO ENJOIN STATE OFFICIALS NOR IN ANY WAY TO INTERFERE WITH
STATE AGENCIES IN ENFORCEMENT OF STATE LAW," 350 U.S., AT 216, AND
FURTHER THAT "NO INJUNCTION IS SOUGHT AGAINST A STATE OFFICIAL," ID.,
AT 217.  THE OPINION IS BARREN OF ANY SUGGESTION THAT ANY INROADS ON
STEFANELLI WERE INTENDED. 

IT IS NO ANSWER TO SAY, AS THE COURT OF APPEALS DID, THAT THIS
PETITIONER "IS NOT BEING ENJOINED IN HIS CAPACITY AS A STATE OFFICIAL,
BUT AS A WITNESS INVITED TO OBSERVE ILLEGAL ACTIVITY BY FEDERAL
AGENTS," 293 F.2D, AT 369.  FOR IT IS ABUNDANTLY CLEAR THAT THE
PETITIONER WAS PRESENT AT THESE OCCURRENCES PRECISELY AND ONLY BECAUSE
OF HIS OFFICIAL CONNECTION WITH THE WATERFRONT COMMISSION.  THE
DISTRICT COURT EXPRESSLY FOUND THAT IT WAS "THE WATERFRONT COMMISSION,"
NOT PETITIONER, WHICH "HAD BEEN INFORMED OF (RESPONDENT) BOLGER'S
DETENTION," 189 F. SUPP., AT 244, AND THAT PETITIONER "WAS PRESENT AT
THE QUESTIONING (OF BOLGER) AS A REPRESENTATIVE OF THE WATERFRONT
COMMISSION."  ID., AT 255. 

NOR CAN THE INJUNCTIVE RELIEF AGAINST THIS PETITIONER FIND
JUSTIFICATION IN THE RATIONALE THAT IT WAS REQUIRED IN ORDER TO MAKE
THE INJUNCTION AGAINST THE FEDERAL OFFICERS EFFECTIVE.  SUCH RELIEF AS
TO HIM MUST STAND ON ITS OWN BOTTOM.  WE NEED NOT DECIDE WHETHER
PETITIONER'S STATUS AS A STATE OFFICIAL MIGHT BE IGNORED HAD IT BEEN
SHOWN THAT HE HAD MISCONDUCTED HIMSELF IN THIS AFFAIR, THAT HE HAD BEEN
UTILIZED BY THE FEDERAL OFFICIALS AS A MEANS OF SHIELDING THEIR OWN
ALLEGED ILLEGAL CONDUCT, OR THAT HE HAD RECEIVED THE EVIDENCE IN DIRECT
VIOLATION OF A FEDERAL COURT ORDER.  HERE THE DISTRICT COURT FOUND THAT
PETITIONER WAS NOT A FACTOR IN THE FEDERAL INVESTIGATION (FN11) AND
THAT HIS PRESENCE THERE WAS SIMPLY "THE RESULT OF THE COMMENDABLE
COOPERATION BETWEEN THE CUSTOMS SERVICE AND THE COMMISSION WHO WERE
BOTH CONCERNED WITH LAW ENFORCEMENT ON THE WATERFRONT."  189 F. SUPP.,
AT 255.  (FN12)  ON THIS RECORD THE UPSHOT OF THE MATTER IS THAT,
INSOFAR AS THIS STATE OFFICIAL IS CONCERNED, NOTHING IN REA JUSTIFIES
DISREGARD OF THE TEACHINGS OF STEFANELLI.  NOR IS THE VITALITY OF THE
PRINCIPLES ON WHICH THE LATTER CASE RESTED SAPPED BY THIS COURT'S
DECISION IN MAPP V. OHIO, 367 U.S. 643, OVERRULING WOLF V. COLORADO,
338 U.S. 25, WHICH HAD REFUSED TO EXTEND TO THE STATES THE EXCLUSIONARY
RULE OF WEEKS V. UNITED STATES, 232 U.S. 383.  FOR IN DENYING THE
INJUNCTIVE RELIEF THERE SOUGHT STEFANELLI EXPRESSLY LAID TO ONE SIDE
ANY POSSIBLE IMPACT OF WOLF.  342 U.S., AT 119-120. 

THE WITHHOLDING OF INJUNCTIVE RELIEF AGAINST THIS STATE OFFICIAL DOES
NOT DEPRIVE RESPONDENT OF THE OPPORTUNITY FOR FEDERAL CORRECTION OF ANY
DENIAL OF FEDERAL CONSTITUTIONAL RIGHTS IN THE STATE PROCEEDINGS.  TO
THE EXTENT THAT SUCH RIGHTS HAVE BEEN VIOLATED, CF., E.G., MAPP V.
OHIO, SUPRA, HE MAY RAISE THE OBJECTION IN THE STATE COURTS AND THEN
SEEK REVIEW IN THIS COURT OF AN ADVERSE DETERMINATION BY THE NEW YORK
COURT OF APPEALS.  TO PERMIT SUCH CLAIMS TO BE LITIGATED COLLATERALLY,
AS IS SOUGHT HERE, WOULD IN EFFECT FRUSTRATE THE DEEP-SEATED FEDERAL
POLICY AGAINST PIECEMEAL REVIEW.    TO THE EXTENT THAT RESPONDENT'S
CLAIMS INVOLVE INFRACTIONS MERELY OF THE FEDERAL CRIMINAL RULES, WE
NEED NOT DECIDE WHETHER AN ADVERSE STATE DETERMINATION UPON SUCH CLAIMS
WOULD BE REVERSIBLE HERE.   CF., E.G., GALLEGOS V. NEBRASKA, 342 U.S.
55.  FOR IN ANY EVENT WE DO NOT THINK THAT AN INJUNCTION AGAINST THIS
STATE OFFICIAL IS JUSTIFIED IN THE CIRCUMSTANCES OF THIS CASE. 
ASSUMING THAT SUCH RELIEF WAS PROPERLY GRANTED HERE AS TO THE FEDERAL
OFFICIALS IN THE EXERCISE OF FEDERAL-COURT SUPERVISORY POWER OVER THEM,
WE CONSIDER THAT A SUPPLEMENTING INJUNCTION SHOULD NOT ISSUE AGAINST A
STATE OFFICIAL, AT LEAST WHERE, AS HERE, THERE IS NO EVIDENCE OF A
PURPOSE TO AVOID FEDERAL REQUIREMENTS AND THE INFORMATION HAS NOT BEEN
ACQUIRED BY THE STATE OFFICIAL IN VIOLATION OF A FEDERAL COURT ORDER. 
SUCH DIRECT INTRUSION IN STATE PROCESSES DOES NOT COMPORT WITH PROPER
FEDERAL-STATE RELATIONSHIPS. 

WE CONCLUDE THAT THE INJUNCTION AS TO THIS PETITIONER SHOULD NOT HAVE
BEEN GRANTED, AND THAT THE JUDGMENT OF THE COURT OF APPEALS MUST
ACCORDINGLY BE REVERSED. 

FN1  SEE DE VEAU V. BRAISTED, 363 U.S. 144. 

FN2  THE OTHER WATERFRONT COMMISSION DETECTIVE, MACHRY, HAD
APPARENTLY LEFT THE SCENE AT AN EARLIER STAGE.  HE WAS NOT JOINED AS A
DEFENDANT IN THE PRESENT ACTION. 

FN3  RESPONDENT ALSO INSTITUTED A SECOND FEDERAL ACTION AGAINST THE
WATERFRONT COMMISSION AND ITS MEMBERS, SEEKING TO ENJOIN THE USE OF THE
SAME EVIDENCE IN THE LICENSE-REVOCATION PROCEEDING.  THAT SUIT WAS
DISMISSED BY THE DISTRICT COURT AND IS NOT INVOLVED HERE. 

FN4  THE DISTRICT COURT HELD THAT RESPONDENT'S ARREST AND THE SEARCH
OF HIS AUTOMOBILE BY THE FEDERAL AGENTS WERE NOT ILLEGAL, AND ALSO
DENIED RETURN OF ANY OF THE PROPERTY SEIZED AT RESPONDENT'S HOME ON THE
PREMISE THAT IT WAS CONTRABAND.  NEITHER OF THOSE DETERMINATIONS IS
BEFORE US. 

FN5  RULE 41(A):  "AUTHORITY TO ISSUE WARRANT.  A SEARCH WARRANT
AUTHORIZED BY THIS RULE MAY BE ISSUED BY A JUDGE OF THE UNITED STATES
OR OF A STATE, COMMONWEALTH OR TERRITORIAL COURT OF RECORD OR BY A
UNITED STATES COMMISSIONER WITHIN THE DISTRICT WHEREIN THE PROPERTY
SOUGHT IS LOCATED." 

FN6 RULE 5(A):  "APPEARANCE BEFORE THE COMMISSIONER.  AN OFFICER
MAKING AN ARREST UNDER A WARRANT ISSUED UPON A COMPLAINT OR ANY PERSON
MAKING AN ARREST WITHOUT A WARRANT SHALL TAKE THE ARRESTED PERSON
WITHOUT UNNECESSARY DELAY BEFORE THE NEAREST AVAILABLE COMMISSIONER OR
BEFORE ANY OTHER NEARBY OFFICER EMPOWERED TO COMMIT PERSONS CHARGED
WITH OFFENSES AGAINST THE LAWS OF THE UNITED STATES.  WHEN A PERSON
ARRESTED WITHOUT A WARRANT IS BROUGHT BEFORE A COMMISSIONER OR OTHER
OFFICER, A COMPLAINT SHALL BE FILED FORTHWITH."  SEE MCNABB V. UNITED
STATES, 318 U.S. 332. 

FN7  IT SHOULD BE NOTED THAT RESPONDENT DID NOT ALLEGE IN HIS
COMPLAINT THAT THE MATTER IN CONTROVERSY EXCEEDED THE SUM OR VALUE OF
$10,000, OR THAT DIVERSITY OF CITIZENSHIP EXISTED.  SEE 28 U.S.C. SECS.
1331, 1332.  NOR DID HE ALLEGE THAT THE DISTRICT COURT HAD JURISDICTION
TO ENJOIN PETITIONER INCIDENTAL TO ITS SUPERVISORY POWER OVER FEDERAL
LAW ENFORCEMENT AGENCIES, CF. REA V. UNITED STATES, 350 U.S. 214, 217,
OR THE 28 U.S.C. SEC. 1343 CONFERRED JURISDICTION.  BUT, IN VIEW OF OUR
DETERMINATION THAT EQUITABLE POWER SHOULD NOT HAVE BEEN EXERCISED WITH
RESPECT TO THIS PETITIONER, IT IS NOT NECESSARY TO RESOLVE THE
QUESTIONS WHETHER THE COMPLAINT STATED A CAUSE OF ACTION AS TO HIM OR
WHETHER FEDERAL JURISDICTION EXISTED OR WAS ADEQUATELY INVOKED.  SEE
STEFANELLI V. MINARD, 342 U.S. 117, 120. 

FN8  RULE 41(E) PROVIDES THAT THE MATERIAL SUPPRESSED "SHALL NOT BE
ADMISSIBLE IN EVIDENCE AT ANY HEARING OR TRIAL." 

FN9  THE COURT OF APPEALS WAS ALSO DISPOSED TO THINK THAT THE
PROPRIETY OF THE DISTRICT COURT'S INJUNCTION WAS NOT AFFECTED BY THIS
COURT'S DECISION IN MAPP V. OHIO, 367 U.S. 643, WHICH CAME DOWN AFTER
THIS CASE HAD LEFT THE DISTRICT COURT. 

FN10  NONE OF THE FEDERAL OFFICERS INVOLVED IN THIS ACTION HAS SOUGHT
REVIEW IN THIS COURT.  AND FOR REASONS STATED IN THIS OPINION THERE IS
OTHERWISE NO NEED FOR DETERMINING THE PROPRIETY OF THE INJUNCTION AS TO
THEM IN ORDER TO DISPOSE OF THE CASE BEFORE US. 

FN11  "IN THE CASE AT BAR THE WRONGFUL ACTIVITIES WERE ALL THOSE OF
FEDERAL OFFICERS AND WERE CONDUCTED OR DIRECTED BY THEM.  ALL THAT WAS
DONE DURING THE PERIOD OF UNLAWFUL DETENTION, AND PARTICULARLY THE
TAKING OF THE INCRIMINATING STATEMENT FROM BOLGER, WAS BEING DONE ON
BEHALF OF THE UNITED STATES.  CLEARY WAS MERELY A WITNESS TO THEM." 
189 F. SUPP., AT 256. 

FN12  WE ATTACH NO SIGNIFICANCE TO THE DISTRICT COURT'S REMARK THAT
PETITIONER'S "PRESENCE MIGHT HAVE BEEN AN ADDITIONAL INDUCEMENT TO
BOLGER TO ANSWER QUESTIONS MORE FREELY" (189 F. SUPP., AT 255) BECAUSE
BOLGER, WHEN ORIGINALLY PICKED UP BY THE FEDERAL OFFICERS, HAD
EXHIBITED CONCERN ABOUT THE POSSIBLE EFFECT OF HIS TRANSGRESSIONS ON
HIS LONGSHOREMAN'S LICENSE.  THE RECORD IS BARREN OF ANY EVIDENCE
INDICATING THAT PETITIONER WAS BROUGHT INTO THE SITUATION FOR THE
PURPOSE OF INTIMIDATING BOLGER OR THAT HE IN FACT DID SO. 

MR. JUSTICE GOLDBERG, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT.  I CANNOT, HOWEVER, JOIN THE COURT'S OPINION,
BECAUSE I DO NOT FIND IT NECESSARY IN THE PRESENT CIRCUMSTANCES TO PASS
UPON THE QUESTION WHETHER REA V. UNITED STATES, 350 U.S. 214, MAY EVER
SUPPORT AN INJUNCTION AGAINST A STATE OFFICIAL WHO HAS RECEIVED
EVIDENCE ILLEGALLY OBTAINED BY FEDERAL OFFICERS EVEN THOUGH "THERE IS
NO EVIDENCE OF A PURPOSE TO AVOID FEDERAL REQUIREMENTS AND THE
INFORMATION HAS NOT BEEN ACQUIRED BY THE STATE OFFICIAL IN VIOLATION OF
A FEDERAL COURT ORDER."  FOR ME CONSIDERATION OF THAT QUESTION IS
OBVIATED BY THE COMMENDABLY BROAD READING WHICH THE NEW YORK COURT OF
APPEALS HAS GIVEN THIS COURT'S DECISION IN MAPP V. OHIO, 367 U.S. 643. 
(FN1)  BECAUSE I STRONGLY ADHERE TO THE PRINCIPLE, STATED WITH CLARITY
IN STEFANELLI V. MINARD, 342 U.S. 117, 120, THAT THE CONSIDERATIONS
GOVERNING WHETHER A FEDERAL EQUITY COURT SHOULD EXERCISE ITS POWER HERE
"TOUCH PERHAPS THE MOST SENSITIVE SOURCE OF FRICTION BETWEEN STATES AND
NATION, NAMELY, THE ACTIVE INTRUSION OF THE FEDERAL COURTS IN THE
ADMINISTRATION OF THE CRIMINAL LAW FOR THE PROSECUTION OF CRIMES SOLELY
WITHIN THE POWER OF THE STATES," I WOULD AVOID GRANTING OF INJUNCTIVE
RELIEF IN CASES SUCH AS THIS WHERE, BECAUSE THERE IS A SUBSTANTIAL
LIKELIHOOD THAT THE STATE COURTS WILL EXCLUDE THE EVIDENCE AT ISSUE,
SUCH RELIEF IS NOT ESSENTIAL TO VINDICATION OF AN OVERRIDING FEDERAL
POLICY GOVERNING CONDUCT OF FEDERAL OFFICERS.  THE VIRTUAL CERTAINTY OF
EXCLUSION IN THE NEW YORK CRIMINAL PROCEEDINGS AND THE LIKELIHOOD OF
EXCLUSION IN THE STATE ADMINISTRATIVE PROCEEDINGS SATISFY ME THAT
DENIAL OF THE INJUNCTION HERE WILL NOT ENCOURAGE FEDERAL OFFICERS TO
ENGAGE IN ILLEGAL CONDUCT.  THUS, DETERRENCE OF SUCH ILLEGALITY, THE
CONSIDERATION WHICH IN SUBSTANTIAL PART UNDERLAY THE DECISION IN REA,
IS NOT A DETERMINING FACTOR HERE AND THERE IS NO NEED TO GRANT
INUUNCTIVE RELIEF TO EFFECTUATE THAT POLICY. 

IN STATING MY POSITION I RELY ON THE NEW YORK COURT OF APPEALS'
ANNOUNCED VIEW THAT IT REGARDS MAPP AS EXTENDING TO THE "FRUIT OF THE
POISONOUS TREE," A HOLDING ARRIVED AT ON FACTS SIMILAR TO THOSE
INVOLVED HERE.  PEOPLE V. RODRIGUEZ, 11 N.Y.2D 279, 286, 183 N.E.2D
651, 653-654 (1962).  IT THEREFORE APPEARS THAT NEW YORK WILL EXCLUDE
ALL THE EVIDENCE HERE IN QUESTION IN THE PENDING CRIMINAL PROCEEDINGS. 
WITH REFERENCE TO THE WATERFRONT COMMISSION HEARING, I AM WELL AWARE
THAT THE NEW YORK COURT OF APPEALS HAS AS YET TAKEN NO POSITION ON THE
APPLICABILITY OF MAPP IN CIVIL AND ADMINISTRATIVE PROCEEDINGS, (FN2)
AND THAT, INDEED, THE EFFECT OF THE FOURTH AMENDMENT IN CIVIL CASES IN
THE FEDERAL COURTS IS NOT TOTALLY SETTLED.  (FN3)  HOWEVER, IN VIEW OF
THE ENCOURAGINGLY CONSTRUCTIVE APPROACH OF THE NEW YORK COURTS TO
APPLICATION OF THE MAPP DECISION AND OF THE "QUASI-CRIMINAL" CHARACTER
OF THE PENDING WATERFRONT COMMISSION PROCEEDINGS, I NEVERTHELESS TAKE
THE VIEW, BASED UPON STEFANELLI, THAT THE ORDERLY WAY TO PROCEED IN
THIS CASE IS FOR NEW YORK TO PASS UPON RESPONDENT'S CLAIMS FIRST. 

THE COURT'S OPINION STATES THAT "TO THE EXTENT THAT RESPONDENT'S
CLAIMS INVOLVE INFRACTIONS MERELY OF THE FEDERAL CRIMINAL RULES, WE
NEED NOT DECIDE WHETHER AN ADVERSE STATE DETERMINATION UPON SUCH CLAIMS
WOULD BE REVERSIBLE HERE."  I, LIKE THE COURT, DO NOT REACH THIS ISSUE,
BUT I SO CONCLUDE BECAUSE OF MY STATED BELIEF THAT NEW YORK WILL, UNDER
MAPP, LIKELY EXCLUDE ALL THE EVIDENCE IN QUESTION HERE, A POSSIBILITY
WHICH FOR ME, BECAUSE OF MY FIRM BELIEF IN THE PRINCIPLES OF STEFANELLI
V. MINARD, SUPRA, IS SUFFICIENT TO MAKE THE GRANTING OF INJUNCTIVE
RELIEF HERE AN UNWISE EXERCISE OF FEDERAL POWER.  WHETHER IT WOULD BE
SIMILARLY EXCLUDIBLE IN SUCH STATE PROCEEDINGS WERE RESPONDENT'S CLAIMS
PREMISED SOLELY UPON FEDERAL OFFICERS' MISBEHAVIOR IN CONTRAVENTION OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE IS A QUESTION WHICH THIS COURT
HAS NOT DECIDED.  (FN4)  THERE IS A STONG INTEREST, WHICH MANY
DECISIONS OF THIS COURT REFLECT, E.G., MCNABB V. UNITED STATES, 318
U.S. 332; MALLORY V. UNITED STATES, 354 U.S. 449, IN ENSURING
COMPLIANCE BY FEDERAL OFFICERS WITH RULES HAVING THE FORCE OF FEDERAL
LAW, DESIGNED TO SAFEGUARD THE RIGHTS OF CITIZENS CHARGED WITH CRIMINAL
ACTS.  WHETHER THE SUPREMACY CLAUSE OF THE CONSTITUTION COMPELS STATE
COURTS TO ENFORCE THAT INTEREST BY EXCLUDING EVIDENCE OBTAINED BY
FEDERAL OFFICERS IN VIOLATION OF THE FEDERAL CRIMINAL RULES, INCLUDING
REVERSE "SILVER PLATTER" SITUATIONS WHEREIN ILLEGALLY PROCURED EVIDENCE
HAS BEEN HANDED OVER TO STATE OFFICERS, WILL WARRANT SERIOUS
CONSIDERATION IN AN APPROPRIATE CASE.  WE NEED NOT AND THEREFORE DO NOT
DECIDE THAT QUESTION HERE. 

FN1  SEE, E.G., PEOPLE V. LORIA, 10 N.Y.2D 368, 179 N.E.2D 478
(1961); PEOPLE V. O'NEILL, 11 N.Y.2D 148, 182 N.E.2D 95 (1962); PEOPLE
V. RODRIGUEZ, 11 N.Y.2D 279, 183 N.E.2D 651 (1962). 

FN2  COMPARE BLOODGOOD V. LYNCH, 293 N.Y. 308, 56 N.E.2D 718 (1944),
WITH SACKLER V. SACKLER, 16 APP. DIV. 2D 423, 229 N.Y.S.2D 61 (2D DEPT.
1962). 

FN3  COMPARE ROGERS V. UNITED STATES, 97 F.2D 691 (C.A. 1ST CIR.
1938), UNITED STATES V. BUTLER, 156 F.2D 897 (C.A. 10TH CIR. 1946), AND
UNITED STATES V. PHYSIC, 175 F.2D 338 (C.A.2D CIR. 1949), WITH UNITED
STATES V. ONE 1956 FORD TUDOR SEDAN, 253 F.2D 725 (C.A. 4TH CIR.
1958). 

FN4  NOTHING IN GALLEGOS V. NEBRASKA, 342 U.S. 55, WHICH DID NOT
INVOLVE ACTIVITIES OF FEDERAL OFFICERS IN VIOLATION OF THE FEDERAL
CRIMINAL RULES, DECIDES THAT QUESTION. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

I WOULD AGREE WITH THE JUDGMENT OF THE COURT IF WE HAD HERE NOTHING
BUT A QUESTION CONCERNING THE USE OF EVIDENCE OBTAINED IN VIOLATION OF
THE FOURTH AMENDMENT.  THAT QUESTION CAN NOW BE RAISED IN THE STATE
PROSECUTION AS A RESULT OF MAPP V. OHIO, 367 U.S. 643.  MY DIFFICULTIES
STEM FROM A FLAGRANT VIOLATION BY FEDERAL OFFICERS OF RULE 5(A) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE AND THE THREATENED USE OF THE
FRUITS OF THAT VIOLATION BY A STATE OFFICIAL IN STATE CASES.  IF THE
COURT, AS IS STRONGLY SUGGESTED, MAKES UNREVIEWABLE HERE ANY ADVERSE
STATE DETERMINATION ON THAT CLAIM, THE ONLY OPPORTUNITY TO CORRECT THE
ABUSE OF FEDERAL AUTHORITY IS HERE AND NOW. 

FEDERAL CUSTOMS AGENTS SUSPECTED THAT THEFTS OF LIQUOR WERE OCCURRING
ON THE NEW YORK WATERFRONT.  TWO AGENTS STOPPED RESPONDENT BOLGER ON
SUSPICION OF THEFT AT ABOUT 8 A.M. ON SATURDAY, SEPTEMBER 12, 1959. 
THEIR SEARCH OF BOLGER'S CAR PRODUCED ONLY A COUPLE OF WINDSHIELD
WIPERS AND SIX SPARK PLUGS STAMPED "MADE IN ENGLAND," ITEMS THAT EASILY
COULD HAVE BEEN PURCHASED IN NEW YORK.  BUT, IN RESPONSE TO THE AGENTS'
QUESTIONING, BOLGER ADMITTED THAT HE HAD AT HIS HOME SEVERAL BOTTLES OF
LIQUOR PURCHASED FROM SEAMEN.  ON THE BASIS OF THIS INFORMATION THE
AGENTS ARRESTED BOLGER AT 9 A.M.  INSTEAD OF TAKING HIM BEFORE A
COMMISSIONER AS REQUIRED BY RULE 5(A), FEDERAL RULES OF CRIMINAL
PROCEDURE, THEY TOOK HIM TO HEADQUARTERS FOR FURTHER QUESTIONING. 
THERE, AFTER REFUSING HIS REQUEST TO CONSULT A LAWYER AND BY EMPLOYING
TRICKERY, THE AGENTS GOT BOLGER TO CONSENT TO A SEARCH OF HIS HOME. 
THE ENSUING SEARCH, CONDUCTED AT ABOUT 11 A.M., PRODUCED SEVERAL ITEMS
TENDING TO INCRIMINATE BOLGER.  UPON RETURNING TO HEADQUARTERS, FURTHER
QUESTIONING PRODUCED DAMAGING STATEMENTS FROM HIM.  PETITIONER CLEARY,
AN INVESTIGATOR FOR THE WATERFRONT COMMISSION OF NEW YORK HARBOR, WAS
PRESENT AT THIS LATER QUESTIONING AT THE INVITATION OF THE FEDERAL
AGENTS.  THOUGH HE DID NOT PARTICIPATE IN THIS QUESTIONING, HE WAS FREE
TO DO SO. 

NO FEDERAL PROSECUTION WAS EVER BROUGHT AGAINST BOLGER.  NEW YORK,
HOWEVER, INSTITUTED BOTH A CRIMINAL PROSECUTION AND AN ADMINISTRATIVE
PROCEEDING TO REVOKE HIS LICENSE AS A HIRING AGENT.  BOLGER BROUGHT
SUIT IN THE FEDERAL DISTRICT COURT TO ENJOIN THE FEDERAL AGENTS AND
CLEARY FROM PRODUCING ANY OF THE MATERIAL SEIZED FROM HIM OR TESTIFYING
AS TO ANY OF HIS STATEMENTS IN EITHER OF THE STATE PROCEEDINGS. 

THE DISTRICT COURT GRANTED THE RELIEF REQUESTED WITH RESPECT TO ALL
STATEMENTS OBTAINED AFTER 11 A.M., AT WHICH TIME A FEDERAL COMMISSIONER
WAS IN HIS OFFICE A FEW BLOCKS FROM HEADQUARTERS, AND ALSO ALL EVIDENCE
OBTAINED AT BOLGER'S HOME.  IT HELD THAT THE STATEMENTS OBTAINED BOTH
PRIOR TO AND AFTER THE SEARCH WERE IN VIOLATION OF RULE 5(A), AND THAT
THE SEARCH AND SEIZURE VIOLATED BOTH THE FOURTH AMENDMENT AND RULE
41(A).  189 F. SUPP. 237.  THE DISTRICT COURT RELIED ON REA V. UNITED
STATES, 350 U.S. 214, INSOFAR AS THE FEDERAL AGENTS WERE CONCERNED; AND
IT ADDED THAT IF THE REMEDY DID NOT EXTEND TO CLEARY, WHOM IT
CHARACTERIZED AS A "HUMAN RECORDER," FEDERAL AGENTS WOULD BE FREE TO
FLOUT THE STRICTURES IMPOSED ON THEM BY REA AND THE FEDERAL RULES.  THE
DISTRICT COURT CONCLUDED, "CLEARY WILL BE RESTRAINED NOT IN HIS
CAPACITY AS A STATE OFFICIAL BUT BECAUSE HE PARTICIPATED AS A WITNESS
IN THE UNLAWFUL ACTS OF THE FEDERAL OFFICERS ACTING ON BEHALF OF THE
UNITED STATES."  189 F. SUPP., AT 256.    ONLY CLEARY APPEALED; AND THE
COURT OF APPEALS AFFIRMED ON THE AUTHORITY OF REA V. UNITED STATES,
SUPRA.  293 F.2D 368.  IT SAID THAT THE ONLY DIFFERENCE BETWEEN THIS
CASE AND REA "IS THE TIME AT WHICH THE FEDERAL OFFICIALS ATTEMPT TO
MAKE THE RESULTS OF THEIR LAWBREAKING AVAILABLE TO THE STATE."  ID., AT
369. 

I THINK THE COURT OF APPEALS WAS CORRECT IN SAYING THAT "THE REA CASE
IS AMPLE AUTHORITY FOR HOLDING THAT THE ORDER APPEALED FROM IS NOT
BARRED BY 28 U.S.C. SEC. 2283 AS AN INJUNCTION TO STAY PROCEEDINGS IN A
STATE COURT."  ID., AT 370.  THE PROCEEDINGS THEMSELVES ARE NOT
ENJOINED.  ENJOINING A STATE AGENT FROM OFFERING AS A WITNESS
UNLAWFULLY OBTAINED EVIDENCE HAS NO DIFFERENT EFFECT ON THE
"PROCEEDINGS IN A STATE COURT" THAN ENJOINING A FEDERAL OFFICER.  TO BE
SURE, IN REA THERE HAD BEEN AN EARLIER SUPPRESSION ORDER IN A FEDERAL
PROSECUTION; AND SO IT IS NOW SAID THAT THE INJUNCTION AGAINST
TESTIFYING WAS NECESSARY TO PROTECT OR EFFECTUATE THAT SUPPRESSION
ORDER.  THAT ANSWER PROVES TOO MUCH, FOR IT WOULD ENABLE FEDERAL AGENTS
THEMSELVES TO VIOLATE THE FEDERAL RULES AND, WITHOUT FEAR OF A FEDERAL
INJUNCTION, PRODUCE ALL THEIR ILLEGALLY OBTAINED EVIDENCE IN A STATE
PROSECUTION. 

A STATE AGENT SHOULD BE ENJOINED FROM PRODUCING, AS A WITNESS IN A
STATE COURT PROCEEDING, EVIDENCE HE ACQUIRED SOLELY AS A RESULT OF
FEDERAL AGENTS' VIOLATION OF THE FEDERAL RULES. 

SUCH AN INJUNCTION SHOULD ISSUE LEST FEDERAL AGENTS ACCOMPLISH
ILLEGAL RESULTS BY BOOSTING OLIVER TWISTS THROUGH WINDOWS BUILT TOO
NARROW BY THOSE RULES FOR THEIR OWN INGRESS.*  IT IS NO ANSWER TO SAY
THAT THE STATE AGENT WAS MERELY A NONPARTICIPATING OBSERVER, OR THAT
OLIVER TWIST WAS AN INNOCENT CHILD.  THE RESULT PRODUCED, VIZ., THE
OLIVER TWIST METHOD OF OBTAINING EVIDENCE IN VIOLATION OF THE FEDERAL
RULES, IS ILLEGAL AND SHOULD NOT GO UNCHECKED. 

*"IT WAS A LITTLE LATTICE WINDOW, ABOUT FIVE FEET AND A HALF ABOVE
THE GROUND:  AT THE BACK OF THE HOUSE:  WHICH BELONGED TO A SCULLERY,
OR SMALL BREWING-PLACE, AT THE END OF THE PASSAGE.  THE APERTURE WAS SO
SMALL, THAT THE INMATES HAD PROBABLY NOT THOUGHT IT WORTH WHILE TO
DEFEND IT MORE SECURELY; BUT IT WAS LARGE ENOUGH TO ADMIT A BOY OF
OLIVER'S SIZE, NEVERTHELESS.  A VERY BRIEF EXERCISE OF MR. SIKE'S ART,
SUFFICED TO OVERCOME THE FASTENING OF THE LATTICE; AND IT SOON STOOD
WIDE OPEN ALSO."  DICKENS, THE ADVENTURES OF OLIVER TWIST (N.Y.:
THOMAS Y. CROWELL & CO.), P. 184. 

"FREE AND OPEN COOPERATION BETWEEN STATE AND FEDERAL LAW ENFORCEMENT
OFFICERS IS TO BE COMMENDED AND ENCOURAGED.  YET THAT KIND OF
COOPERATION IS HARDLY PROMOTED BY A RULE THAT IMPLICITLY INVITES
FEDERAL OFFICERS  ...  (TO VIOLATE THE PROVISIONS OF THE FEDERAL
RULES).  IF, ON THE OTHER HAND, IT IS UNDERSTOOD THAT THE FRUIT OF  ...
UNLAWFUL  ...  (CONDUCT) BY  ...  (FEDERAL) AGENTS WILL BE
INADMISSIBLE IN A  ...  (STATE) TRIAL, THERE CAN BE NO INDUCEMENT TO
SUBTERFUGE AND EVASION WITH RESPECT TO FEDERAL-STATE COOPERATION IN
CRIMINAL INVESTIGATION" - TO PARAPHRASE AN EARLIER OPINION IN A RELATED
AREA.  SEE ELKINS V. UNITED STATES, 364 U.S. 206, 221-222.  UNLESS A
FEDERAL COURT CAN ENJOIN A STATE AGENT UNDER THE FACTS OF THIS CASE,
THE PROVISIONS OF THE FEDERAL RULES WILL BE SUBVERTED AND AN UNHEALTHY
FORM OF STATE-FEDERAL COOPERATION WILL BE ENCOURAGED. 

WHAT IS INVOLVED IS NOT AN ATTEMPT BY A FEDERAL COURT TO INTERJECT
ITSELF INTO A STATE CRIMINAL PROSECUTION TO PROTECT A DEFENDANT'S
FEDERAL RIGHTS AGAINST STATE INFRINGEMENT, AS WAS THE CASE IN PUGACH V.
DOLLINGER, 365 U.S. 458, AND STEFANELLI V. MINARD, 342 U.S. 117.  IN
BOTH OF THOSE CASES THE UNLAWFULLY OBTAINED EVIDENCE HAD BEEN OBTAINED
BY STATE POLICE.  HERE THE EVIDENCE WAS OBTAINED BY FEDERAL AGENTS IN
VIOLATION OF THE FEDERAL RULES.  IT THEREFORE INVOLVES NO ENTRENCHMENT
ON PRINCIPLES OF FEDERALISM TO HOLD THAT A FEDERAL DISTRICT COURT MAY
ENJOIN THE PRODUCTION OF SUCH EVIDENCE IN A STATE PROCEEDING,
REGARDLESS OF WHO SEEKS TO INTRODUCE IT.  THE FEDERAL COURTS, RATHER
THAN THE STATE COURTS, HAVE THE RESPONSIBILITY OF ASSURING THAT FEDERAL
LAW-ENFORCEMENT OFFICERS ADHERE TO THE PROCEDURES PRESCRIBED BY THE
FEDERAL RULES.  THIS RESPONSIBILITY CANNOT BE MET IF THE FEDERAL
COURTS' POWER CAN BE THWARTED BY FEDERAL EMPLOYMENT OF A STATE OLIVER
TWIST. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

I JOIN IN THE DISSENTING OPINION OF MY BROTHER DOUGLAS AND ADD A FEW
WORDS IN SUPPORT OF HIS CONCLUSION. 

                                           I. 

THE COURT CONCEDES ARGUENDO THAT IT WAS PROPER TO ENJOIN THE FEDERAL
OFFICERS FROM TESTIFYING IN STATE PROCEEDINGS AGAINST RESPONDENT AS TO
THE FRUITS OF THEIR VIOLATIONS OF RULES 5 AND 41 OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE.  BUT HAVING MADE THIS CONCESSION - COMPELLED, I
SHOULD THINK, BY REA V. UNITED STATES, 350 U.S. 214 (FN1)  - THE COURT
THEN EXCLUDES PETITIONER FROM THE INJUNCTION:  "INJUNCTIVE RELIEF
AGAINST THIS PETITIONER (CANNOT) FIND JUSTIFICATION IN THE RATIONALE
THAT IT WAS REQUIRED IN ORDER TO MAKE THE INJUNCTION AGAINST THE
FEDERAL OFFICERS EFFECTIVE.  SUCH RELIEF AS TO HIM MUST STAND ON ITS
OWN BOTTOM."  THE COURT FINDS NO "BOTTOM," BECAUSE PETITIONER DID NOT
HIMSELF VIOLATE THE FEDERAL RULES OR OTHERWISE MISCONDUCT HIMSELF. 
THIS REASONING, I SUBMIT, CANNOT WITHSTAND SCRUTINY. 

IN SO REFUSING INCIDENTAL RELIEF AGAINST PETITIONER, SURELY THE COURT
FLOUTS SETTLED PRINCIPLES OF EQUITY.  EQUITY DOES NOT DO JUSTICE BY
HALVES; ITS REMEDIES ARE FLEXIBLE.  "A WRIT OF INJUNCTION MAY BE SAID
TO BE A PROCESS CAPABLE OF MORE MODIFICATIONS THAN ANY OTHER IN THE
LAW; IT IS SO MALLEABLE THAT IT MAY BE MOULDED TO SUIT THE VARIOUS
CIRCUMSTANCES AND OCCASIONS PRESENTED TO A COURT OF EQUITY.  IT IS AN
INSTRUMENT IN ITS HANDS CAPABLE OF VARIOUS APPLICATIONS FOR THE
PURPOSES OF DISPENSING COMPLETE JUSTICE BETWEEN PARTIES."  TUCKER V.
CARPENTER, 24 FED. CAS. NO. 14217 (CIR. CT. D. ARK. 1841); SEE 1 JOYCE,
INJUNCTIONS (1909), SEC. 2; 1 POMEROY, EQUITY JURISPRUDENCE (5TH ED.,
SYMONS, 1941), SEC. 114.  (FN2)  "COMPLETE JUSTICE" HAS NOT BEEN DONE
IF THE FRUITS OF THE VIOLATIONS OF FEDERAL LAW BY FEDERAL OFFICERS MAY
NEVERTHELESS BE USED AGAINST RESPONDENT IN STATE PROCEEDINGS BY A STATE
OFFICER WHO WITNESSED, INDEED ABETTED, THOSE VIOLATIONS. 

THE VACATION OF THE INJUNCTION AGAINST THE STATE OFFICER ON THE
GROUND THAT HE HIMSELF WAS NOT A WRONGDOER WHOLLY MISCONCEIVES THE
NATURE OF EQUITABLE RELIEF.  SUCH RELIEF IS NOT PUNITIVE BUT REMEDIAL,
AND IT IS MEASURED NOT BY THE DEFENDANT'S TRANSGRESSIONS BUT BY THE
PLAINTIFF'S NEEDS.  THUS, TO PROTECT A TRADE SECRET, EQUITY WILL ENJOIN
THIRD PERSONS TO WHOM THE SECRET HAS BEEN DIVULGED IF THEY HAVE NOTICE
OF THE BREACH OF TRUST.  SEE, E.G., COLGATE-PALMOLIVE CO. V. CARTER
PRODUCTS, INC., 230 F.2D 855, 864-865 (C.A. 4TH CIR. 1956).  SUCH THIRD
PERSONS ARE NOT THEMSELVES MALEFACTORS, ANY MORE THAN THIS STATE
OFFICER IS; THEY ARE ENJOINED IN ORDER TO GIVE THE VICTIM OF THE WRONG
EFFECTIVE PROTECTION.  THE RESPONDENT HEREIN IS ENTITLED TO EFFECTIVE
PROTECTION AGAINST THE FEDERAL OFFICERS' VIOLATIONS OF FEDERAL LAW,
WHICH COMPREHENDS ANCILLARY RELIEF AGAINST PETITIONER QUA WITNESS TO
THE UNLAWFUL CONDUCT.  THOUGH INNOCENT OF THE FEDERAL OFFICERS'
MISCONDUCT, THE STATE OFFICER MAY NOT AVAIL HIMSELF OF ITS FRUITS TO
THE HARM OF RESPONDENT.  I REPEAT:  THE COURT ERRS IN ASSERTING THAT
THE INJUNCTION AGAINST THE STATE OFFICER MUST STAND ON ITS OWN BOTTOM;
SUCH A SUPPLEMENTAL DECREE IS FULLY JUSTIFIED, IN ACCORDANCE WITH THE
CONVENTIONAL PRINCIPLES OF EQUITY, BY THE ISSUANCE OF AN INJUNCTION
AGAINST THE FEDERAL OFFICERS. 

THE INCIDENTAL NATURE OF THE RELIEF GRANTED AGAINST THE STATE OFFICER
SHOULD DISPEL ANY FEAR THAT SUCH RELIEF THREATENS IMPAIRMENT OF THE
HARMONIOUS WORKINGS OF FEDERALISM.  TO BE SURE, IT WAS PART OF THE
STATE OFFICER'S OFFICIAL DUTIES TO COOPERATE FULLY WITH FEDERAL
OFFICERS.  BUT IT WAS NO PART OF HIS DUTY TO ABET AND FACILITATE
FEDERAL OFFICERS' UNLAWFUL CONDUCT.  TO ENJOIN HIM AS A WITNESS TO SUCH
CONDUCT DOES NO MORE THAN FORBID HIM TO PROFIT FROM IT.  IN OVERRULING
THE "SILVER PLATTER" DOCTRINE A FEW TERMS AGO, WE ANCHORED OUR HOLDING
IN THE DISRUPTIVE EFFECT UPON THE FEDERAL SYSTEM OF ALLOWING THE
INTRODUCTION INTO FEDERAL COURTS OF EVIDENCE UNLAWFULLY SEIZED BY STATE
OFFICERS.  ELKINS V. UNITED STATES, 364 U.S. 206, 221.  SURELY THE
CONVERSE SITUATION IS NO LESS PRODUCTIVE OF NEEDLESS CONFLICT.  IN
TRUTH, TO ENJOIN THE INTRODUCTION INTO STATE COURTS OF EVIDENCE
UNLAWFULLY SEIZED BY FEDERAL OFFICERS IS TO PROMOTE, NOT RETARD, A
HEALTHY FEDERALISM. 

IN INVOKING THE BOGEY OF FEDERAL DISRUPTION OF STATE CRIMINAL
PROCESSES, THE COURT RELIES HEAVILY ON STEFANELLI V. MINARD, 342 U.S.
117, WHERE IT WAS HELD TO BE IMPROPER TO ENJOIN THE INTRODUCTION IN A
STATE CRIMINAL TRIAL OF EVIDENCE SEIZED BY STATE OFFICERS IN VIOLATION
OF THE FOURTEENTH AMENDMENT.  BUT STEFANELLI IS MANIFESTLY INAPT.  THAT
DECISION WAS COMPELLED BY WOLF V. COLORADO, 338 U.S. 25, WHERE THE
COURT, WHILE CONFIRMING THAT THE FOURTH AMENDMENT HAD BEEN ABSORBED
INTO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, NEVERTHELESS
LEFT THE STATES FREE TO DEVISE APPROPRIATE REMEDIES FOR VIOLATIONS OF
THIS CONSTITUTIONAL PROTECTION.  TO HAVE AUTHORIZED THE FEDERAL
DISTRICT COURTS TO ORDER THE EXCLUSION IN STATE CRIMINAL TRIALS OF
EVIDENCE UNLAWFULLY OBTAINED BY STATE OFFICIALS WOULD HAVE SANCTIONED
ACCOMPLISHING INDIRECTLY WHAT WOLF FORBADE DIRECTLY.  BUT WOLF HAS BEEN
OVERRULED IN THIS PARTICULAR, MAPP V. OHIO, 367 U.S. 643, AND THE
ACCOMMODATION OF WOLF WHICH REQUIRED THE DECISION IN STEFANELLI IS NO
LONGER A CONCERN. 

MOREOVER, THE INSTANT PETITIONER IS NOT SOUGHT TO BE ENJOINED AS A
STATE OFFICER WHOSE MISCONDUCT OUGHT TO BE REMEDIED BY THE STATE, AS
WAS THE CASE IN STEFANELLI, BUT AS A WITNESS TO THE MISCONDUCT OF
FEDERAL OFFICERS.  THE FEDERAL RULES ARE NOT DIRECTED AT STATE
OFFICERS, NOR WAS THIS STATE OFFICER FOUND TO HAVE ENGAGED IN CONDUCT
VIOLATIVE OF THEM.  RESPONSIBILITY FOR ENFORCING THE FEDERAL RULES LIES
PRECISELY WITH THE FEDERAL COURTS, WHEREAS UNDER THE REGIME OF WOLF
RESPONSIBILITY FOR ENFORCING THE FOURTEENTH AMENDMENT'S RIGHT OF
PRIVACY LAY EXCLUSIVELY WITH THE STATE COURT.  INDEED, IT IS IN LIGHT
OF THE DIFFERENCE BETWEEN VIOLATIONS OF THE FEDERAL RULES AND
VIOLATIONS OF THE FOURTEENTH AMENDMENT THAT THE STEFANELLI AND REA
DECISIONS EMERGE AS PERFECTLY CONSISTENT; AND IT IS SIGNIFICANT THAT
THE AUTHOR OF THE COURT'S OPINION IN STEFANELLI JOINED THE COURT'S
OPINION IN REA. 

IT IS ALSO WORTH OBSERVING THAT CONGRESS HAS TAKEN PAINS TO SPECIFY
THE CONDITIONS UNDER WHICH A FEDERAL COURT SHALL WITHHOLD INJUNCTIVE
RELIEF IN RESPECT OF A PENDING STATE COURT PROCEEDING.  SEE 28 U.S.C.
SEC. 2283.  THE COURT NOWHERE MENTIONS THIS PROVISION, SURELY BECAUSE
ITS TOTAL INAPPLICABILITY TO THE CASE AT HAND IS PLAIN: AN INJUNCTION
AGAINST THIS STATE OFFICER WOULD NOT STAY THE STATE PROCEEDINGS AGAINST
RESPONDENT BUT ONLY PRECLUDE THE USE OF CERTAIN EVIDENCE IN THEM. 
SINCE CONGRESS IN SEC. 2283 SET OUT SPECIFIC CONDITIONS FOR WITHHOLDING
FEDERAL EQUITY RELIEF, AND THESE CONDITIONS HAVE NOT BEEN MET IN THE
CASE AT BAR, I SUBMIT THAT WE ARE OBLIGATED TO ALLOW SUCH RELIEF TO BE
GRANTED IN CONFORMITY WITH THE ACCEPTED USAGES OF EQUITY PROCEDURE. 

                                         II. 

WITH ALL RESPECT I CANNOT SHARE THE VIEW OF MY BROTHER GOLDBERG THAT
RELIEF SHOULD BE DENIED HERE BECAUSE THE PROBABLE EXCLUSION OF THE
CHALLENGED EVIDENCE, IN WHOLE OR PART, BY THE NEW YORK COURTS WOULD
SUFFICIENTLY SERVE TO DETER LAWLESS CONDUCT BY FEDERAL OFFICERS.  MY
VIEW IS THAT EQUITABLE ACTIONS GROUNDED IN VIOLATIONS OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE SHOULD BE GOVERNED BY THE ACCEPTED
PRINCIPLES OF EQUITY.  AMONG THEM IS THE PRINCIPLE THAT AN ADEQUATE
REMEDY AT LAW BARS EQUITABLE RELIEF.  THIS PRINCIPLE SEEMS TO ME TO BE
APPLICABLE EVEN WHERE THE REMEDY IS GIVEN BY THE STATE COURTS, SO LONG
AS THE SOURCE OF THE REMEDY IS FEDERAL LAW.  SEE HENRIETTA MILLS V.
RUTHERFORD COUNTY, 281 U.S. 121, 126-127.  I FURTHER BELIEVE THAT ONE
WHO HAS AN ADEQUATE REMEDY BY WAY OF APPEAL, AS WELL AS ONE WHO HAS A
MORE CONVENTIONAL ADQUATE REMEDY AT LAW, IS THEREBY DISBARRED FROM
EQUITABLE RELIEF.  1 JOYCE, SUPRA, SEC. 29.  BUT FOR A REMEDY TO BE
ADEQUATE, IT MUST HAVE MORE THAN A MERELY THEORETICAL AVAILABILITY.  IF
"A COURT OF LAW CAN DO AS COMPLETE JUSTICE TO THE MATTER IN CONTROVERSY
...  AS COULD BE DONE BY A COURT OF EQUITY, EQUITY WILL NOT INTERFERE
...  .  BUT IN ORDER THAT THE GENERAL PRINCIPLE MAY APPLY, THE
SUFFICIENCY AND COMPLETENESS OF THE LEGAL REMEDY MUST BE CERTAIN; IF IT
IS DOUBTFUL, EQUITY MAY TAKE COGNIZANCE."  1 POMEROY, SUPRA, SEC. 176. 
HOW CERTAIN, COMPLETE, AND SUFFICIENT IS THE REMEDY BY WAY OF APPEAL IN
THE INSTANT CASE?  MY BROTHER GOLDBERG CONCEDES UNCERTAINTY AS TO
WHETHER THE NEW YORK COURTS, THOUGH THEY HAVE GENEROUSLY INTERPRETED
MAPP V. OHIO, SUPRA, WILL EXCLUDE ALL THE CHALLENGED EVIDENCE INVOLVED
IN THIS CASE, OR WHETHER MAPP OR ANY OTHER DECISION OF THIS COURT
COMPELS SUCH EXCLUSION.  NOR IS IT CERTAIN THAT A STATE IS OBLIGED TO
EXCLUDE EVIDENCE WHICH IS THE PRODUCT OF VIOLATIONS OF THE FEDERAL
RULES - NO DECISION OF THIS COURT HAS YET SO HELD AND REA WAS PREMISED
ON A CONTRARY ASSUMPTION, SEE 350 U.S., AT 217; WILSON V. SCHNETTLER,
SUPRA, AT 391 (DISSENTING OPINION) - AND FINALLY, WHILE PETITIONER
HEREIN WAS ENJOINED FROM TESTIFYING IN THE STATE ADMINISTRATIVE
PROCEEDING AGAINST RESPONDENT, AS WELL AS IN THE CRIMINAL PROCEEDING,
IT HAS NOT YET BEEN SETTLED WHETHER MAPP APPLIES TO ADMINISTRATIVE
PROCEEDINGS.  THUS, TO REMIT RESPONDENT TO HIS REMEDY BY APPEAL IN THE
STATE COURTS IS TO SET HIM ADRIFT ON A SEA OF LEGAL UNCERTAINTIES, AND
VERY POSSIBLY TO DEPRIVE HIM, IN THE END, OF ANY REMEDY WHATEVER. 
SINCE RESPONDENT'S REMEDY BY LAW IS UNCERTAIN, CONVENTIONAL EQUITY
PRINCIPLES REQUIRE THAT THE INJUNCTION ISSUE AGAINST THIS STATE
OFFICER, PREMISED NOT ON CONSTITUTIONAL GROUNDS BUT ON VIOLATIONS OF
THE FEDERAL RULES BY FEDERAL OFFICERS.  (FN3)    FN1  IN WILSON V.
SCHNETTLER, 365 U.S. 381, I JOINED THE DISSENTING OPINION OF MY BROTHER
DOUGLAS BECAUSE I THOUGHT (AND STILL DO) THAT THE COURT WAS MAKING
DANGEROUS INROADS UPON THE REA DECISION.  HAPPILY, THE COURT IN THE
INSTANT CASE MAKES NO SUGGESTION THAT THE AUTHORITY OF REA HAS BEEN
IMPAIRED BY WILSON.  AT ALL EVENTS WILSON IS DISTINGUISHABLE FROM THE
CASE AT BAR, FOR HERE THERE WAS NO FAILURE TO ALLEGE A VIOLATION OF
FEDERAL LAW AND A LACK OF AN ADEQUATE REMEDY AT LAW. 

FN2  "THE GOVERNING MOTIVE OF EQUITY IN THE ADMINISTRATION OF ITS
REMEDIAL SYSTEM IS TO GRANT FULL RELIEF, AND TO ADJUST IN THE ONE SUIT
THE RIGHTS AND DUTIES OF ALL THE PARTIES, WHICH REALLY GROW OUT OF OR
ARE CONNECTED WITH THE SUBJECT-MATTER OF THAT SUIT  ...  .  ITS
FUNDAMENTAL PRINCIPLE CONCERNING PARTIES IS, THAT ALL PERSONS IN WHOSE
FAVOR OR AGAINST WHOM THERE MIGHT BE A RECOVERY, HOWEVER PARTIAL, AND
ALSO ALL PERSONS WHO ARE SO INTERESTED, ALTHOUGH INDIRECTLY, IN THE
SUBJECTMATTER AND THE RELIEF GRANTED, THAT THEIR RIGHTS OR DUTIES MIGHT
BE AFFECTED BY THE DECREE, ALTHOUGH NO SUBSTANTIAL RECOVERY CAN BE
OBTAINED EITHER FOR OR AGAINST THEM, SHALL BE MADE PARTIES TO THE SUIT
...  .  THE PRIMARY OBJECT IS, THAT ALL PERSONS SUFFICIENTLY INTERESTED
MAY BE BEFORE THE COURT, SO THAT THE RELIEF MAY BE PROPERLY ADJUSTED
AMONG THOSE ENTITLED, THE LIABILITIES PROPERLY APPORTIONED, AND THE
INCIDENTAL OR CONSEQUENTIAL CLAIMS OR INTERESTS OF ALL MAY BE FIXED,
AND ALL MAY BE BOUND IN RESPECT THERETO BY THE SINGLE DECREE."  1
POMEROY, SUPRA. 

FN3  THE COURT'S INTIMATION, IN NOTE 7 OF THE OPINION, OF DOUBT AS TO
THE EXISTENCE OF FEDERAL JURISDICTION IN THE INSTANT CASE SEEMS TO ME
TOTALLY UNWARRANTED.  THE COURT WAS UNANIMOUS IN REA AS TO THE
EXISTENCE OF FEDERAL JURISDICTION; THE ONLY DISPUTE WAS AS TO THE
PROPRIETY OF EXERCISING IT.  SEE 350 U.S., AT 219 (DISSENTING
OPINION).  TO PREDICATE FEDERAL JURISDICTION IN THE INSTANT CASE, WE
NEED NOT DECIDE WHETHER THE FEDERAL RULES ARE CIVIL RIGHTS STATUTES
WITHIN THE INTENT OF 28 U.S.C. SEC. 1343(4), NOR NEED WE RESORT TO ANY
OTHER JURISDICTIONAL STATUTE.  FOR THE FEDERAL COURTS HAVE THE INHERENT
AUTHORITY TO ISSUE ORDERS TO PROTECT THEIR PROCESSES, HERE, AS IN REA,
GOVERNED BY THE FEDERAL RULES OF CRIMINAL PROCEDURE.  SEE 350 U.S., AT
217; WISE V. HENKEL, 220 U.S. 556, 558. 
..END :
























NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. BUTTON 371
U.S. 415 


NO. 5.  ARGUED NOVEMBER 8, 1961.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED OCTOBER 9, 1962.  - DECIDED
JANUARY 14, 1963.  - 202 VA. 142, 116 S.E.2D 55, REVERSED. 


1.  PETITIONER SUED IN A FEDERAL DISTRICT COURT TO ENJOIN ENFORCEMENT
OF A VIRGINIA STATUTE ON THE GROUND THAT, AS APPLIED TO IT, THE STATUTE
VIOLATED THE FOURTEENTH AMENDMENT.  THE DISTRICT COURT ABSTAINED FROM
PASSING ON THE VALIDITY OF THE STATUTE PENDING AN AUTHORITATIVE
INTERPRETATION OF IT BY THE STATE COURTS; BUT IT RETAINED
JURISDICTION.  PETITIONER THEN APPLIED TO A STATE COURT FOR A BINDING
ADJUDICATION OF ALL OF ITS CLAIMS AND A PERMANENT INJUNCTION AND
DECLARATORY RELIEF, AND IT MADE NO RESERVATION TO THE DISPOSITION OF
THE ENTIRE CASE BY THE STATE COURTS.  A STATE TRIAL COURT HELD THE
STATUTE TO BE BOTH CONSTITUTIONAL AND APPLICABLE TO PETITOIONER, AND
THIS DECISION WAS AFFIRMED BY THE VIRGINIA SUPREME COURT OF APPEALS. 
PETITIONER THEN PETITIONED THIS COURT FOR A WRIT OF CERTIORARI TO
REVIEW THE DECISION OF THE VIRGINIA SUPREME COURT OF APPEALS, AND THIS
COURT GRANTED CERTIORARI.  HELD:  THE DISTRICT COURT'S RESERVATION OF
JURISDICTION WAS PURELY FORMAL; IT DID NOT IMPAIR THE JURISDICTION OF
THIS COURT TO REVIEW AN OTHERWISE FINAL STATE COURT JUDGMENT; THE
JUDGMENT BELOW WAS "FINAL," WITHIN THE MEANING OF 28 U.S.C. SEC. 1257;
AND THE CASE IS PROPERLY BEFORE THIS COURT.  PP. 427-428. 

2.  CHAPTER 33 OF THE VIRGINIA ACTS OF ASSEMBLY, EXTRA SESS. 1956,
AMENDED FORMER STATUTES DEFINING AND PUNISHING MALPRACTICE BY ATTORNEYS
SO AS TO BROADEN THE DEFINITION OF SOLICITATION OF LEGAL BUSINESS TO
INCLUDE ACCEPTANCE OF EMPLOYMENT OR COMPENSATION FROM ANY PERSON OR
ORGANIZATION NOT A PARTY TO A JUDICIAL PROCEEDING AND HAVING NO
PECUNIARY RIGHT OR LIABILITY IN IT.  IT ALSO MADE IT AN OFFENSE FOR ANY
SUCH PERSON OR ORGANIZATION TO SOLICIT BUSINESS FOR ANY ATTORNEY. 
PETITIONER, A CORPORATION WHOSE MAJOR PURPOSE WAS THE ELIMINATION OF
RACIAL DISCRIMINATION, SUED IN A STATE COURT TO ENJOIN ENFORCEMENT OF
THIS CHAPTER AND FOR A DECLARATORY JUDGMENT THAT, AS APPLIED TO
PETITIONER, ITS AFFILIATES, OFFICERS, MEMBERS, ATTORNEYS RETAINED OR
PAID BY IT, AND LITIGANTS TO WHOM IT MIGHT GIVE ASSISTANCE IN CASES
INVOLVING RACIAL DISCRIMINATION, THE CHAPTER VIOLATED THE FOURTEENTH
AMENDMENT.  THE COURT FOUND THAT PETITIONER, THROUGH ITS STATE
CONFERENCE, HAD FORMED A LEGAL STAFF TO DIRECT ACTIONS PERTAINING TO
RACIAL DISCRIMINATION; URGED THE INSTITUTION OF SUITS TO CHALLENGE
RACIAL DISCRIMINATION; OFFERED THE SERVICES OF ATTORNEYS SELECTED AND
PAID BY IT AND ITS AFFILIATES; AND, WITH ITS AFFILIATES, CONTROLLED THE
CONDUCT OF SUCH LITIGATION.  HELD:  THE ACTIVITIES OF PETITIONER, ITS
AFFILIATES AND LEGAL STAFF SHOWN ON THIS RECORD ARE MODES OF EXPRESSION
AND ASSOCIATION, PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS WHICH
VIRGINIA MAY NOT PROHIBIT, UNDER ITS POWER TO REGULATE THE LEGAL
PROFESSION, AS IMPROPER SOLICITATION OF LEGAL BUSINESS VIOLATIVE OF
CHAPTER 33 AND THE CANONS OF PROFESSIONAL ETHICS.  PP. 417-445. 

(A)  ALTHOUGH PETITIONER IS A CORPORATION, IT MAY ASSERT ITS RIGHT
AND THAT OF ITS MEMBERS AND LAWYERS TO ASSOCIATE FOR THE PURPOSE OF
ASSISTING PERSONS WHO SEEK LEGAL REDRESS FOR INFRINGEMENT OF THEIR
CONSTITUTIONALLY GUARANTEED RIGHTS.  P. 428. 

(B)  ABSTRACT DISCUSSION IS NOT THE ONLY SPECIES OF COMMUNICATION
WHICH THE CONSTITUTION PROTECTS; THE FIRST AMENDMENT ALSO PROTECTS
VIGOROUS ADVOCACY, CERTAINLY OF LAWFUL ENDS, AGAINST GOVERNMENTAL
INTRUSION.  P. 429. 

(C)  IN THE CONTEXT OF PETITIONER'S OBJECTIVES, LITIGATION IS NOT A
MEANS OF RESOLVING PRIVATE DIFFERENCES; IT IS A FORM OF POLITICAL
EXPRESSION AND A MEANS FOR ACHIEVING THE LAWFUL OBJECTIVES OF EQUALITY
OF TREATMENT BY ALL GOVERNMENTS, FEDERAL, STATE AND LOCAL, FOR THE
MEMBERS OF THE NEGRO COMMUNITY.  PP. 429-430. 

(D)  IN ORDER TO FIND CONSTITUTIONAL PROTECTION FOR THE KIND OF
COOPERATIVE, ORGANIZATIONAL ACTIVITY DISCLOSED BY THIS RECORD, IT IS
NOT NECESSARY TO SUBSUME SUCH ACTIVITY UNDER A NARROW, LITERAL
CONCEPTION OF FREEDOM OF SPEECH, PETITION OR ASSEMBLY, FOR THERE IS NO
LONGER ANY DOUBT THAT THE FIRST AND FOURTEENTH AMENDMENTS PROTECT
CERTAIN FORMS OF ORDERLY GROUP ACTIVITY.  PP.  430-431. 

(E)  UNDER CHAPTER 33, AS AUTHORITATIVELY CONSTRUED BY THE VIRGINIA
SUPREME COURT OF APPEALS, A PERSON WHO ADVISES ANOTHER THAT HIS LEGAL
RIGHTS HAVE BEEN INFRINGED AND REFERS HIM TO A PARTICULAR ATTORNEY OR
GROUP OF ATTORNEYS FOR ASSISTANCE HAS COMMITTED A CRIME, AS HAS THE
ATTORNEY WHO KNOWINGLY RENDERS ASSISTANCE UNDER SUCH CIRCUMSTANCES;
THERE THUS INHERES IN THE STATUTE THE GRAVEST DANGER OF SMOTHERING ALL
DISCUSSION LOOKING TO THE EVENTUAL INSTITUTION OF LITIGATION ON BEHALF
OF THE RIGHTS OF NEGROES; AND, AS SO CONSTRUED, CHAPTER 33 VIOLATES THE
FOURTEENTH AMENDMENT BY UNDULY INHIBITING PROTECTED FREEDOMS OF
EXPRESSION AND ASSOCIATION.  PP. 431-438. 

(F)  IT IS NO ANSWER TO THE CONSTITUTIONAL CLAIMS ASSERTED BY
PETITIONER TO SAY, AS DID THE VIRGINIA SUPREME COURT OF APPEALS, THAT
THE PURPOSE OF THIS STATUTE WAS MERELY TO INSURE HIGH PROFESSIONAL
STANDARDS AND NOT TO CURTAIL FREEDOM OF EXPRESSION, FOR A STATE MAY
NOT, UNDER THE GUISE OF PROHIBITING PROFESSIONAL MISCONDUCT, IGNORE
CONSTITUTIONAL RIGHTS.  PP. 438-439. 

(G)  HOWEVER VALID MAY BE VIRGINIA'S INTEREST IN REGULATING THE
TRADITIONALLY ILLEGAL PRACTICES OF BARRATRY, MAINTENANCE AND CHAMPERTY,
THAT INTEREST DOES NOT JUSTIFY THE PROHIBITION OF PETITIONER'S
ACTIVITIES DISCLOSED BY THIS RECORD.  PP. 439-443. 

(H)  RESORT TO THE COURTS TO SEEK VINDICATION OF CONSTITUTIONAL
RIGHTS IS A DIFFERENT MATTER FROM THE OPPRESSIVE, MALICIOUS, OR
AVARICIOUS USE OF THE LEGAL PROCESS FOR PURELY PRIVATE GAIN.  PP. 443
444. 

(I)  ALTHOUGH PETITIONER HAS AMPLY SHOWN THAT ITS ACTIVITIES FALL
WITHIN THE PROTECTION OF THE FIRST AMENDMENT, THE STATE HAS FAILED TO
ADVANCE ANY SUBSTANTIAL REGULATORY INTEREST, IN THE FORM OF SUBSTANTIVE
EVILS FLOWING FROM PETITIONER'S ACTIVITIES, WHICH CAN JUSTIFY THE BROAD
PROHIBITIONS WHICH IT HAS IMPOSED.  P. 444. 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. BUTTON,
ATTORNEY GENERAL OF VIRGINIA ET AL. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE ORIGINATED IN COMPANION SUITS BY THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE, INC. (NAACP), AND THE NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC. (DEFENSE FUND), BROUGHT IN
1957 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA.  THE SUITS SOUGHT TO RESTRAIN THE ENFORCEMENT OF CHAPTERS 31,
32, 33, 35 AND 36 OF THE VIRGINIA ACTS OF ASSEMBLY, 1956 EXTRA SESSION,
ON THE GROUND THAT THE STATUTES, AS APPLIED TO THE ACTIVITIES OF THE
PLAINTIFFS, VIOLATED THE FOURTEENTH AMENDMENT.  A THREE-JUDGE COURT
CONVENED PURSUANT TO 28 U.S.C. SEC. 2281, AFTER HEARING EVIDENCE AND
MAKING FACT-FINDINGS, STRUCK DOWN CHAPTERS 31, 32 AND 35 BUT ABSTAINED
FROM PASSING UPON THE VALIDITY OF CHAPTERS 33 AND 36 PENDING AN
AUTHORITATIVE INTERPRETATION OF THESE STATUTES BY THE VIRGINIA COURTS. 
(FN1)  THE COMPLAINANTS THEREUPON PETITIONED IN THE CIRCUIT COURT OF
THE CITY OF RICHMOND TO DECLARE CHAPTERS 33 AND 36 INAPPLICABLE TO
THEIR ACTIVITIES, OR, IF APPLICABLE, UNCONSTITUTIONAL.  THE RECORD IN
THE CIRCUIT COURT WAS THAT MADE BEFORE THE THREE-JUDGE COURT
SUPPLEMENTED BY ADDITIONAL EVIDENCE.  THE CIRCUIT COURT HELD THE
CHAPTERS TO BE BOTH APPLICABLE AND CONSTITUTIONAL.  THE HOLDING WAS
SUSTAINED BY THE VIRGINIA SUPREME COURT OF APPEALS AS TO CHAPTER 33,
BUT REVERSED AS TO CHAPTER 36, WHICH WAS HELD UNCONSTITUTIONAL UNDER
BOTH STATE AND FEDERAL LAW.  (FN2)  THEREUPON THE DEFENSE FUND RETURNED
TO THE FEDERAL DISTRICT COURT, WHERE ITS CASE IS PRESENTLY PENDING,
WHILE THE NAACP FILED THE INSTANT PETITION.  WE GRANTED CERTIORARI. 
365 U.S. 842.  (FN3)  WE HEARD ARGUMENT IN THE 1961 TERM AND ORDERED
REARGUMENT THIS TERM.  369 U.S. 833.  SINCE NO CROSS-PETITION WAS FILED
TO REVIEW THE SUPREME COURT OF APPEALS' DISPOSITION OF CHAPTER 36, THE
ONLY ISSUE BEFORE US IS THE CONSTITUIONALITY OF CHAPTER 33 AS APPLIED
TO THE ACTIVITIES OF THE NAACP. 

THERE IS NO SUBSTANTIAL DISPUTE AS TO THE FACTS; THE DISPUTE CENTERS
ABOUT THE CONSTITUTIONALITY UNDER THE FOURTEENTH AMENDMENT OF CHAPTER
33, AS CONSTRUED AND APPLIED BY THE VIRGINIA SUPREME COURT OF APPEALS
TO INCLUDE NAACP'S ACTIVITIES WITHIN THE STATUTE'S BAN AGAINST "THE
IMPROPER SOLICITATION OF ANY LEGAL OR PROFESSIONAL BUSINESS." 

THE NAACP WAS FORMED IN 1909 AND INCORPORATED UNDER NEW YORK LAW AS A
NONPROFIT MEMBERSHIP CORPORATION IN 1911.  IT MAINTAINS ITS
HEADQUARTERS IN NEW YORK AND PRESENTLY HAS SOME 1,000 ACTIVE
UNINCORPORATED BRANCHES THROUGHOUT THE NATION.  THE CORPORATION IS
LICENSED TO DO BUSINESS IN VIRGINIA, AND HAS 89 BRANCHES THERE.  THE
VIRGINIA BRANCHES ARE ORGANIZED INTO THE VIRGINIA STATE CONFERENCE OF
NAACP BRANCHES (THE CONFERENCE), AN UNINCORPORATED ASSOCIATION, WHICH
IN 1957 HAD SOME 13,500 MEMBERS.  THE ACTIVITIES OF THE CONFERENCE ARE
FINANCED JOINTLY BY THE NATIONAL ORGANIZATION AND THE LOCAL BRANCHES
FROM CONTRIBUTIONS AND MEMBERSHIP DUES.  NAACP POLICY, BINDING UPON
LOCAL BRANCHES AND CONFERENCES, IS SET BY THE ANNUAL NATIONAL
CONVENTION. 

THE BASIC AIMS AND PURPOSES OF NAACP ARE TO SECURE THE ELIMINATION OF
ALL RACIAL BARRIERS WHICH DEPRIVE NEGRO CITIZENS OF THE PRIVILEGES AND
BURDENS OF EQUAL CITIZENSHIP RIGHTS IN THE UNITED STATES.  TO THIS END
THE ASSOCIATION ENGAGES IN EXTENSIVE EDUCATIONAL AND LOBBYING
ACTIVITIES.  IT ALSO DEVOTES MUCH OF ITS FUNDS AND ENERGIES TO AN
EXTENSIVE PROGRAM OF ASSISTING CERTAIN KINDS OF LITIGATION ON BEHALF OF
ITS DECLARED PURPOSES.  FOR MORE THAN 10 YEARS, THE VIRGINIA CONFERENCE
HAS CONCENTRATED UPON FINANCING LITIGATION AIMED AT ENDING RACIAL
SEGREGATION IN THE PUBLIC SCHOOLS OF THE COMMONWEALTH. 

THE CONFERENCE ORDINARILY WILL FINANCE ONLY CASES IN WHICH THE
ASSISTED LITIGANT RETAINS AN NAACP STAFF LAWYER TO REPRESENT HIM. 
(FN4)  THE CONFERENCE MAINTAINS A LEGAL STAFF OF 15 ATTORNEYS, ALL OF
WHOM ARE NEGROES AND MEMBERS OF THE NAACP.  THE STAFF IS ELECTED AT THE
CONFERENCE'S ANNUAL CONVENTION.  EACH LEGAL STAFF MEMBER MUST AGREE TO
ABIDE BY THE POLICIES OF THE NAACP, WHICH, INSOFAR AS THEY PERTAIN TO
PROFESSIONAL SERVICES, LIMIT THE KINDS OF LITIGATION WHICH THE NAACP
WILL ASSIST.  THUS THE NAACP WILL NOT UNDERWRITE ORDINARY DAMAGES
ACTIONS, CRIMINAL ACTIONS IN WHICH THE DEFENDANT RAISES NO QUESTION OF
POSSIBLE RACIAL DISCRIMINATION, OR SUITS IN WHICH THE PLAINTIFF SEEKS
SEPARATE BUT EQUAL RATHER THAN FULLY DESEGREGATED PUBLIC SCHOOL
FACILITIES.  THE STAFF DECIDES WHETHER A LITIGANT, WHO MAY OR MAY NOT
BE AN NAACP MEMBER, IS ENTITLED TO NAACP ASSISTANCE.  THE CONFERENCE
DEFRAYS ALL EXPENSES OF LITIGATION IN AN ASSISTED CASE, AND USUALLY,
ALTHOUGH NOT ALWAYS, PAYS EACH LAWYER ON THE CASE A PER DIEM FEE NOT TO
EXCEED $60, PLUS OUT-OF-POCKET EXPENSES.  THE ASSISTED LITIGANT
RECEIVES NO MONEY FROM THE CONFERENCE OR THE STAFF LAWYERS.  THE STAFF
MEMBER MAY NOT ACCEPT, FROM THE LITIGANT OR ANY OTHER SOURCE, ANY OTHER
COMPENSATION FOR HIS SERVICES IN AN NAACP-ASSISTED CASE.  NONE OF THE
STAFF RECEIVES A SALARY OR RETAINER FROM THE NAACP; THE PER DIEM FEE IS
PAID ONLY FOR PROFESSIONAL SERVICES IN A PARTICULAR CASE.  THIS PER
DIEM PAYMENT IS SMALLER THAN THE COMPENSATION ORDINARILY RECEIVED FOR
EQUIVALENT PRIVATE PROFESSIONAL WORK.  THE ACTUAL CONDUCT OF ASSISTED
LITIGATION IS UNDER THE CONTROL OF THE ATTORNEY, ALTHOUGH THE NAACP
CONTINUES TO BE CONCERNED THAT THE OUTCOME OF THE LAWSUIT SHOULD BE
CONSISTENT WITH NAACP'S POLICIES ALREADY DESCRIBED.  A CLIENT IS FREE
AT ANY TIME TO WITHDRAW FROM AN ACTION. 

THE MEMBERS OF THE LEGAL STAFF OF THE VIRGINIA CONFERENCE AND OTHER
NAACP OR DEFENSE FUND LAWYERS CALLED IN BY THE STAFF TO ASSIST ARE
DRAWN INTO LITIGATION IN VARIOUS WAYS.  ONE IS FOR AN AGGRIEVED NEGRO
TO APPLY DIRECTLY TO THE CONFERENCE OR THE LEGAL STAFF FOR ASSISTANCE. 
HIS APPLICATION IS REFERRED TO THE CHAIRMAN OF THE LEGAL STAFF.  THE
CHAIRMAN, WITH THE CONCURRENCE OF THE PRESIDENT OF THE CONFERENCE, IS
AUTHORIZED TO AGREE TO GIVE LEGAL ASSISTANCE IN AN APPROPRIATE CASE. 
IN LITIGATION INVOLVING PUBLIC SCHOOL SEGREGATION, THE PROCEDURE TENDS
TO BE DIFFERENT.  TYPICALLY, A LOCAL NAACP BRANCH WILL INVITE A MEMBER
OF THE LEGAL STAFF TO EXPLAIN TO A MEETING OF PARENTS AND CHILDREN THE
LEGAL STEPS NECESSARY TO ACHIEVE DESEGREGATION.  THE STAFF MEMBER WILL
BRING PRINTED FORMS TO THE MEETING AUTHORIZING HIM, AND OTHER NAACP OR
DEFENSE FUND ATTORNEYS OF HIS DESIGNATION, TO REPRESENT THE SIGNERS IN
LEGAL PROCEEDINGS TO ACHIEVE DESEGREGATION.  ON OCCASION, BLANK FORMS
HAVE BEEN SIGNED BY LITIGANTS, UPON THE UNDERSTANDING THAT A MEMBER OR
MEMBERS OF THE LEGAL STAFF, WITH OR WITHOUT ASSISTANCE FROM OTHER NAACP
LAWYERS, OR FROM THE DEFENSE FUND, WOULD HANDLE THE CASE.  IT IS USUAL,
AFTER OBTAINING AUTHORIZATIONS, FOR THE STAFF LAWYER TO BRING INTO THE
CASE THE OTHER STAFF MEMBERS IN THE AREA WHERE SUIT IS TO BE BROUGHT,
AND SOMETIMES TO BRING IN LAWYERS FROM THE NATIONAL ORGANIZATION OR THE
DEFENSE FUND.  (FN5)  IN EFFECT, THEN, THE PROSPECTIVE LITIGANT RETAINS
NOT SO MUCH A PARTICULAR ATTORNEY AS THE "FIRM" OF NAACP AND DEFENSE
FUND LAWYERS, WHICH HAS A CORPORATE REPUTATION FOR EXPERTNESS IN
PRESENTING AND ARGUING THE DIFFICULT QUESTIONS OF LAW THAT FREQUENTLY
ARISE IN CIVIL RIGHTS LITIGATION. 

THESE MEETINGS ARE SOMETIMES PROMPTED BY LETTERS AND BULLETINS FROM
THE CONFERENCE URGING ACTIVE STEPS TO FIGHT SEGREGATION.  THE
CONFERENCE HAS ON OCCASION DISTRIBUTED TO THE LOCAL BRANCHES PETITIONS
FOR DESEGREGATION TO BE SIGNED BY PARENTS AND FILED WITH LOCAL SCHOOL
BOARDS, AND ADVISED BRANCH OFFICIALS TO OBTAIN, AS PETITIONERS, PERSONS
WILLING TO "GO ALL THE WAY" IN ANY POSSIBLE LITIGATION THAT MAY ENSUE. 
WHILE THE CONFERENCE IN THESE WAYS ENCOURAGES THE BRINGING OF LAWSUITS,
THE PLAINTIFFS IN PARTICULAR ACTIONS, SO FAR AS APPEARS, MAKE THEIR OWN
DECISIONS TO BECOME SUCH.  (FN6) 

STATUTORY REGULATION OF UNETHICAL AND NONPROFESSIONAL CONDUCT BY
ATTORNEYS HAS BEEN IN FORCE IN VIRGINIA SINCE 1849.  THESE PROVISIONS
OUTLAW, INTER ALIA, SOLICITATION OF LEGAL BUSINESS IN THE FORM OF
"RUNNING" OR "CAPPING."  PRIOR TO 1956, HOWEVER, NO ATTEMPT WAS MADE TO
PROSCRIBE UNDER SUCH REGULATIONS THE ACTIVITIES OF THE NAACP, WHICH HAD
BEEN CARRIED ON OPENLY FOR MANY YEARS IN SUBSTANTIALLY THE MANNER
DESCRIBED.  IN 1956, HOWEVER, THE LEGISLATURE AMENDED, BY THE ADDITION
OF CHAPTER 33, THE PROVISIONS OF THE VIRGINIA CODE FORBIDDING
SOLICITATION OF LEGAL BUSINESS BY A "RUNNER" OR "CAPPER" TO INCLUDE, IN
THE DEFINITION OF "RUNNER" OR "CAPPER," AN AGENT FOR AN INDIVIDUAL OR
ORGANIZATION WHICH RETAINS A LAWYER IN CONNECTION WITH AN ACTION TO
WHICH IT IS NOT A PARTY AND IN WHICH IT HAS NO PECUNIARY RIGHT OR
LIABILITY.  (FN7)  THE VIRGINIA SUPREME COURT OF APPEALS HELD THAT THE
CHAPTER'S PURPOSE "WAS TO STRENGTHEN THE EXISTING STATUTES TO FURTHER
CONTROL THE EVILS OF SOLICITATION OF LEGAL BUSINESS  ...  ."  202 VA.,
AT 154, 116 S.E.2D, AT 65.  THE COURT HELD THAT THE ACTIVITIES OF
NAACP, THE VIRGINIA CONFERENCE, THE DEFENSE FUND, AND THE LAWYERS
FURNISHED BY THEM, FELL WITHIN, AND COULD CONSTITUTIONALLY BE
PROSCRIBED BY, THE CHAPTER'S EXPANDED DEFINITION OF IMPROPER
SOLICITATION OF LEGAL BUSINESS, AND ALSO VIOLATED CANONS 35 AND 47 OF
THE AMERICAN BAR ASSOCIATION'S CANONS OF PROFESSIONAL ETHICS, WHICH THE
COURT HAD ADOPTED IN 1938.  (FN8)  SPECIFICALLY THE COURT HELD THAT,
UNDER THE EXPANDED DEFINITION, SUCH ACTIVITIES ON THE PART OF NAACP,
THE VIRGINIA CONFERENCE, AND THE DEFENSE FUND CONSTITUTED "FOMENTING
AND SOLICITING LEGAL BUSINESS IN WHICH THEY ARE NOT PARTIES AND HAVE NO
PECUNIARY RIGHT OR LIABILITY, AND WHICH THEY CHANNEL TO THE ENRICHMENT
OF CERTAIN LAWYERS EMPLOYED BY THEM, AT NO COST TO THE LITIGANTS AND
OVER WHICH THE LITIGANTS HAVE NO CONTROL."  202 VA., AT 155; 116
S.E.2D, AT 66.  FINALLY, THE COURT RESTATED THE DECREE OF THE RICHMOND
CIRCUIT COURT.  WE HAVE EXCERPTED THE PERTINENT PORTION OF THE COURT'S
HOLDING IN THE MARGIN.  (FN9)

                                          I. 

A JURISDICTIONAL QUESTION MUST FIRST BE RESOLVED:  WHETHER THE
JUDGMENT BELOW WAS "FINAL" WITHIN THE MEANING OF 28 U.S.C. SEC. 1257. 
THE THREE-JUDGE FEDERAL DISTRICT COURT RETAINED JURISDICTION OF THIS
CASE WHILE AN AUTHORITATIVE CONSTRUCTION OF CHAPTERS 33 AND 36 WAS
BEING SOUGHT IN THE VIRGINIA COURTS.  CF. CHICAGO V. FIELDCREST
DAIRIES, INC., 316 U.S. 168, 173.  THE QUESTION OF OUR JURISDICTION
ARISES BECAUSE, WHEN THE CASE WAS LAST HERE, WE OBSERVED THAT SUCH
ABSTENTION TO SECURE STATE COURT INTERPRETATION "DOES NOT, OF COURSE,
INVOLVE THE ABDICATION BY THE DISTRICT COURT OF FEDERAL JURISDICTION,
BUT ONLY THE POSTPONEMENT OF ITS EXERCISE  ...  ."  HARRISON V. NAACP,
360 U.S. 167, 177.  WE MEANT SIMPLY THAT THE DISTRICT COURT HAD
PROPERLY RETAINED JURISDICTION, SINCE A PARTY HAS THE RIGHT TO RETURN
TO THE DISTRICT COURT, AFTER OBTAINING THE AUTHORITATIVE STATE COURT
CONSTRUCTION FOR WHICH THE COURT ABSTAINED, FOR A FINAL DETERMINATION
OF HIS CLAIM.  WHERE, HOWEVER, THE PARTY REMITTED TO THE STATE COURTS
ELECTS TO SEEK A COMPLETE AND FINAL ADJUDICATION OF HIS RIGHTS IN THE
STATE COURTS, THE DISTRICT COURT'S RESERVATION OF JURISDICTION IS
PURELY FORMAL, AND DOES NOT IMPAIR OUR JURISDICTION TO REVIEW DIRECTLY
AN OTHERWISE FINAL STATE COURT JUDGMENT.  LASSITER V. NORTHAMPTON
COUNTY BD. OF ELECTIONS, 360 U.S. 45.  WE THINK IT CLEAR THAT
PETITIONER MADE SUCH AN ELECTION IN THE INSTANT CASE, BY SEEKING FROM
THE RICHMOND CIRCUIT COURT "A BINDING ADJUDICATION" OF ALL ITS CLAIMS
AND A PERMANENT INJUNCTION AS WELL AS DECLARATORY RELIEF, BY MAKING NO
RESERVATION TO THE DISPOSITION OF THE ENTIRE CASE BY THE STATE COURTS,
AND BY COMING HERE DIRECTLY ON CERTIORARI.  THEREFORE, THE JUDGMENT OF
THE VIRGINIA SUPREME COURT OF APPEALS WAS FINAL, AND THE CASE IS
PROPERLY BEFORE US.

     II. 

PETITIONER CHALLENGES THE DECISION OF THE SUPREME COURT OF APPEALS ON
MANY GROUNDS.  BUT WE REACH ONLY ONE:  THAT CHAPTER 33 AS CONSTRUED AND
APPLIED ABRIDGES THE FREEDOMS OF THE FIRST AMENDMENT, PROTECTED AGAINST
STATE ACTION BY THE FOURTEENTH.  (FN10)  MORE SPECIFICALLY, PETITIONER
CLAIMS THAT THE CHAPTER INFRINGES THE RIGHT OF THE NAACP AND ITS
MEMBERS AND LAWYERS TO ASSOCIATE FOR THE PURPOSE OF ASSISTING PERSONS
WHO SEEK LEGAL REDRESS FOR INFRINGEMENTS OF THEIR CONSTITUTIONALLY
GUARANTEED AND OTHER RIGHTS.  WE THINK PETITIONER MAY ASSERT THIS RIGHT
ON ITS OWN BEHALF, BECAUSE, THOUGH A CORPORATION, IT IS DIRECTLY
ENGAGED IN THOSE ACTIVITIES, CLAIMED TO BE CONSTITUTIONALLY PROTECTED,
WHICH THE STATUTE WOULD CURTAIL.  CF. GROSJEAN V. AMERICAN PRESS CO.,
297 U.S. 233.  WE ALSO THINK PETITIONER HAS STANDING TO ASSERT THE
CORRESPONDING RIGHTS OF ITS MEMBERS.  SEE NAACP V. ALABAMA EX REL.
PATTERSON, 357 U.S. 449, 458-460; BATES V. CITY OF LITTLE ROCK, 361
U.S. 516, 523, N. 9; LOUISIANA EX REL. GREMILLION V. NAACP, 366 U.S.
293, 296. 

WE REVERSE THE JUDGMENT OF THE VIRGINIA SUPREME COURT OF APPEALS.  WE
HOLD THAT THE ACTIVITIES OF THE NAACP, ITS AFFILIATES AND LEGAL STAFF
SHOWN ON THIS RECORD ARE MODES OF EXPRESSION AND ASSOCIATION PROTECTED
BY THE FIRST AND FOURTEENTH AMENDMENTS WHICH VIRGINIA MAY NOT PROHIBIT
UNDER ITS POWER TO REGULATE THE LEGAL PROFESSION, AS IMPROPER
SOLICITATION OF LEGAL BUSINESS VIOLATIVE OF CHAPTER 33 AND THE CANONS
OF PROFESSIONAL ETHICS.  (FN11)
     A. 

WE MEET AT THE OUTSET THE CONTENTION THAT "SOLICITATION" IS WHOLLY
OUTSIDE THE AREA OF FREEDOMS PROTECTED BY THE FIRST AMENDMENT.  TO THIS
CONTENTION THERE ARE TWO ANSWERS.  THE FIRST IS THAT A STATE CANNOT
FORECLOSE THE EXERCISE OF CONSTITUTIONAL RIGHTS BY MERE LABELS.  THE
SECOND IS THAT ABSTRACT DISCUSSION IS NOT THE ONLY SPECIES OF
COMMUNICATION WHICH THE CONSTITUTION PROTECTS; THE FIRST AMENDMENT ALSO
PROTECTS VIGOROUS ADVOCACY, CERTAINLY OF LAWFUL ENDS, AGAINST
GOVERNMENTAL INTRUSION.  THOMAS V. COLLINS, 323 U.S. 516, 537; HERNDON
V. LOWRY, 301 U.S. 242, 259-264.  CF. CANTWELL V. CONNECTICUT, 310 U.S.
296; STROMBERG V. CALIFORNIA, 283 U.S. 359, 369; TERMINIELLO V.
CHICAGO, 337 U.S. 1, 4.  IN THE CONTEXT OF NAACP OBJECTIVES, LITIGATION
IS NOT A TECHNIQUE OF RESOLVING PRIVATE DIFFERENCES; IT IS A MEANS FOR
ACHIEVING THE LAWFUL OBJECTIVES OF EQUALITY OF TREATMENT BY ALL
GOVERNMENT, FEDERAL, STATE AND LOCAL, FOR THE MEMBERS OF THE NEGRO
COMMUNITY IN THIS COUNTRY.  IT IS THUS A FORM OF POLITICAL EXPRESSION. 
GROUPS WHICH FIND THEMSELVES UNABLE TO ACHIEVE THEIR OBJECTIVES THROUGH
THE BALLOT FREQUENTLY TURN TO THE COURTS.  (FN12)  JUST AS IT WAS TRUE
OF THE OPPONENTS OF NEW DEAL LEGISLATION DURING THE 1930'S, (FN13) FOR
EXAMPLE, NO LESS IS IT TRUE OF THE NEGRO MINORITY TODAY.  AND UNDER THE
CONDITIONS OF MODERN GOVERNMENT, LITIGATION MAY WELL BE THE SOLE
PRACTICABLE AVENUE OPEN TO A MINORITY TO PETITION FOR REDRESS OF
GRIEVANCES. 

WE NEED NOT, IN ORDER TO FIND CONSTITUTIONAL PROTECTION FOR THE KIND
OF COOPERATIVE, ORGANIZATIONAL ACTIVITY DISCLOSED BY THIS RECORD,
WHEREBY NEGROES SEEK THROUGH LAWFUL MEANS TO ACHIEVE LEGITIMATE
POLITICAL ENDS, SUBSUME SUCH ACTIVITY UNDER A NARROW, LITERAL
CONCEPTION OF FREEDOM OF SPEECH, PETITION OR ASSEMBLY.  FOR THERE IS NO
LONGER ANY DOUBT THAT THE FIRST AND FOURTEENTH AMENDMENTS PROTECT
CERTAIN FORMS OF ORDERLY GROUP ACTIVITY.  THUS WE HAVE AFFIRMED THE
RIGHT "TO ENGAGE IN ASSOCIATION FOR THE ADVANCEMENT OF BELIEFS AND
IDEAS."  NAACP V. ALABAMA, SUPRA, AT 460.  WE HAVE DEEMED PRIVILEGED,
UNDER CERTAIN CIRCUMSTANCES, THE EFFORTS OF A UNION OFFICIAL TO
ORGANIZE WORKERS.  THOMAS V. COLLINS, SUPRA.  WE HAVE SAID THAT THE
SHERMAN ACT DOES NOT APPLY TO CERTAIN CONCERTED ACTIVITIES OF RAILROADS
"AT LEAST INSOFAR AS THOSE ACTIVITIES COMPRISED MERE SOLICITATION OF
GOVERNMENTAL ACTION WITH RESPECT TO THE PASSAGE AND ENFORCEMENT OF
LAWS" BECAUSE "SUCH A CONSTRUCTION OF THE SHERMAN ACT WOULD RAISE
IMPORTANT CONSTITUTIONAL QUESTIONS," SPECIFICALLY, FIRST AMENDMENT
QUESTIONS.  EASTERN R. PRESIDENTS CONFERENCE V. NOERR MOTOR FREIGHT,
INC., 365 U.S. 127, 138.  AND WE HAVE REFUSED TO COUNTENANCE COMPELLED
DISCLOSURE OF A PERSON'S POLITICAL ASSOCIATIONS IN LANGUAGE CLOSELY
APPLICABLE TO THE INSTANT CASE: 

"OUR FORM OF GOVERNMENT IS BUILT ON THE PREMISE THAT EVERY CITIZEN
SHALL HAVE THE RIGHT TO ENGAGE IN POLITICAL EXPRESSION AND
ASSOCIATION.  THIS RIGHT WAS ENSHRINED IN THE FIRST AMENDMENT OF THE
BILL OF RIGHTS.  EXERCISE OF THESE BASIC FREEDOMS IN AMERICA HAS
TRADITIONALLY BEEN THROUGH THE MEDIA OF POLITICAL ASSOCIATIONS.  ANY
INTERFERENCE WITH THE FREEDOM OF A PARTY IS SIMULTANEOUSLY AN
INTERFERENCE WITH THE FREEDOM OF ITS ADHERENTS.  ALL POLITICAL IDEAS
CANNOT AND SHOULD NOT BE CHANNELED INTO THE PROGRAMS OF OUR TWO MAJOR
PARTIES.  HISTORY HAS AMPLY PROVED THE VIRTUE OF POLITICAL ACTIVITY BY
MINORITY, DISSIDENT GROUPS  ...  ."  SWEEZY V. NEW HAMPSHIRE, 354 U.S.
234, 250-251 (PLURALITY OPINION).  CF. DE JONGE V. OREGON, 299 U.S.
353, 364-366. 

THE NAACP IS NOT A CONVENTIONAL POLITICAL PARTY; BUT THE LITIGATION
IT ASSISTS, WHILE SERVING TO VINDICATE THE LEGAL RIGHTS OF MEMBERS OF
THE AMERICAN NEGRO COMMUNITY, AT THE SAME TIME AND PERHAPS MORE
IMPORTANTLY, MAKES POSSIBLE THE DISTINCTIVE CONTRIBUTION OF A MINORITY
GROUP TO THE IDEAS AND BELIEFS OF OUR SOCIETY.  FOR SUCH A GROUP,
ASSOCIATION FOR LITIGATION MAY BE THE MOST EFFECTIVE FORM OF POLITICAL
ASSOCIATION. 

                                 B. 

OUR CONCERN IS WITH THE IMPACT OF ENFORCEMENT OF CHAPTER 33 UPON
FIRST AMENDMENT FREEDOMS.  WE START, OF COURSE, FROM THE DECREE OF THE
SUPREME COURT OF APPEALS.  ALTHOUGH THE ACTION BEFORE IT WAS ONE
BASICALLY FOR DECLARATORY RELIEF, THAT COURT NOT ONLY EXPOUNDED THE
PURPOSE AND REACH OF THE CHAPTER BUT HELD CONCRETELY THAT CERTAIN OF
PETITIONER'S ACTIVITIES HAD, AND CERTAIN OTHERS HAD NOT, VIOLATED THE
CHAPTER.  THESE ACTIVITIES HAD BEEN EXPLORED IN DETAIL AT THE TRIAL AND
WERE SPREAD OUT PLAINLY ON THE RECORD.  WE HAVE NO DOUBT THAT THE
OPINION OF THE SUPREME COURT OF APPEALS IN THE INSTANT CASE WAS
INTENDED AS A FULL AND AUTHORITATIVE CONSTRUCTION OF CHAPTER 33 AS
APPLIED IN A DETAILED FACTUAL CONTEXT.  THAT CONSTRUCTION BINDS US.
FOR US, THE WORDS OF VIRGINIA'S HIGHEST COURT ARE THE WORDS OF THE
STATUTE.  HEBERT V. LOUISIANA, 272 U.S. 312, 317.  WE ARE NOT LEFT TO
SPECULATE AT LARGE UPON THE POSSIBLE IMPLICATIONS OF BARE STATUTORY
LANGUAGE. 

BUT IT DOES NOT FOLLOW THAT THIS COURT NOW HAS ONLY A CLEAR-CUT TASK
TO DECIDE WHETHER THE ACTIVITIES OF THE PETITIONER DEEMED UNLAWFUL BY
THE SUPREME COURT OF APPEALS ARE CONSTITUTIONALLY PRIVILEGED.  IF THE
LINE DRAWN BY THE DECREE BETWEEN THE PERMITTED AND PROHIBITED
ACTIVITIES OF THE NAACP, ITS MEMBERS AND LAWYERS IS AN AMBIGUOUS ONE,
WE WILL NOT PRESUME THAT THE STATUTE CURTAILS CONSTITUTIONALLY
PROTECTED ACTIVITY AS LITTLE AS POSSIBLE.  FOR STANDARDS OF PERMISSIBLE
STATUTORY VAGUENESS ARE STRICT IN THE AREA OF FREE EXPRESSION.  SEE
SMITH V. CALIFORNIA, 361 U.S. 147, 151; WINTERS V. NEW YORK, 333 U.S.
507, 509-510, 517-518; HERNDON V. LOWRY, 301 U.S. 242; STROMBERG V.
CALIFORNIA, 283 U.S. 359; UNITED STATES V. C.I.O., 335 U.S. 106, 142
(RUTLEDGE, J., CONCURRING).  FURTHERMORE, THE INSTANT DECREE MAY BE
INVALID IF IT PROHIBITS PRIVILEGED EXERCISES OF FIRST AMENDMENT RIGHTS
WHETHER OR NOT THE RECORD DISCLOSES THAT THE PETITIONER HAS ENGAGED IN
PRIVILEGED CONDUCT.  FOR IN APPRAISING A STATUTE'S INHIBITORY EFFECT
UPON SUCH RIGHTS, THIS COURT HAS NOT HESITATED TO TAKE INTO ACCOUNT
POSSIBLE APPLICATIONS OF THE STATUTE IN OTHER FACTUAL CONTEXTS BESIDES
THAT AT BAR.  THORNHILL V. ALABAMA, 310 U.S. 88, 97-98; WINTERS V. NEW
YORK, SUPRA, AT 518-520.  CF. STAUB V. CITY OF BAXLEY, 355 U.S. 313. 
IT MAKES NO DIFFERENCE THAT THE INSTANT CASE WAS NOT A CRIMINAL
PROSECUTION AND NOT BASED ON A REFUSAL TO COMPLY WITH A LICENSING
REQUIREMENT.  THE OBJECTIONABLE QUALITY OF VAGUENESS AND OVERBREADTH
DOES NOT DEPEND UPON ABSENCE OF FAIR NOTICE TO A CRIMINALLY ACCUSED OR
UPON UNCHANNELED DELEGATION OF LEGISLATIVE POWERS, BUT UPON THE DANGER
OF TOLERATING, IN THE AREA OF FIRST AMENDMENT FREEDOMS, THE EXISTENCE
OF A PENAL STATUTE SUSCEPTIBLE OF SWEEPING AND IMPROPER APPLICATION. 
(FN14)  CF. MARCUS V. SEARCH WARRANT, 367 U.S. 717, 733.  THESE
FREEDOMS ARE DELICATE AND VULNERABLE, AS WELL AS SUPREMELY PRECIOUS IN
OUR SOCIETY.  THE THREAT OF SANCTIONS MAY DETER THEIR EXERCISE ALMOST
AS POTENTLY AS THE ACTUAL APPLICATION OF SANCTIONS.  CF. SMITH V.
CALIFORNIA, SUPRA, AT 151-154; SPEISER V. RANDALL, 357 U.S. 513, 526. 
BECAUSE FIRST AMENDMENT FREEDOMS NEED BREATHING SPACE TO SURVIVE,
GOVERNMENT MAY REGULATE IN THE AREA ONLY WITH NARROW SPECIFICITY. 
CANTWELL V. CONNECTICUT, 310 U.S. 296, 311. 

WE READ THE DECREE OF THE VIRGINIA SUPREME COURT OF APPEALS IN THE
INSTANT CASE AS PROSCRIBING ANY ARRANGEMENT BY WHICH PROSPECTIVE
LITIGANTS ARE ADVISED TO SEEK THE ASSISTANCE OF PARTICULAR ATTORNEYS. 
NO NARROWER READING IS PLAUSIBLE.  WE CANNOT ACCEPT THE READING
SUGGESTED ON BEHALF OF THE ATTORNEY GENERAL OF VIRGINIA ON THE SECOND
ORAL ARGUMENT THAT THE SUPREME COURT OF APPEALS CONSTRUED CHAPTER 33 AS
PROSCRIBING CONTROL ONLY OF THE ACTUAL LITIGATION BY THE NAACP AFTER IT
IS INSTITUTED.  IN THE FIRST PLACE, UPON A RECORD DEVOID OF ANY
EVIDENCE OF INTERFERENCE BY THE NAACP IN THE ACTUAL CONDUCT OF
LITIGATION, OR NEGLECT OR HARASSMENT OF CLIENTS, THE COURT NEVERTHELESS
HELD THAT PETITIONER, ITS MEMBERS, AGENTS AND STAFF ATTORNEYS HAD
PRACTICED CRIMINAL SOLICITATION.  THUS, SIMPLE REFERRAL TO OR
RECOMMENDATION OF A LAWYER MAY BE SOLICITATION WITHIN THE MEANING OF
CHAPTER 33.  IN THE SECOND PLACE, THE DECREE DOES NOT SEEM TO REST ON
THE FACT THAT THE ATTORNEYS WERE ORGANIZED AS A STAFF AND PAID BY
PETITIONER.  THE DECREE EXPRESSLY FORBIDS SOLICITATION ON BEHALF OF
"ANY PARTICULAR ATTORNEYS" IN ADDITION TO ATTORNEYS RETAINED OR
COMPENSATED BY THE NAACP.  IN THE THIRD PLACE, ALTHOUGH CHAPTER 33
PURPORTS TO PROHIBIT ONLY SOLICITATION BY ATTORNEYS OR THEIR "AGENTS,"
IT DEFINES AGENT BROADLY AS ANYONE WHO "REPRESENTS" ANOTHER IN HIS
DEALINGS WITH A THIRD PERSON.  SINCE THE STATUTE APPEARS TO DEPART FROM
THE COMMON-LAW CONCEPT OF THE AGENCY RELATIONSHIP AND SINCE THE
VIRGINIA COURT DID NOT CLARIFY THE STATUTORY DEFINITION, WE CANNOT SAY
THAT IT WILL NOT BE APPLIED WITH THE BROAD SWEEP WHICH THE STATUTORY
LANGUAGE IMPORTS. 

WE CONCLUDE THAT UNDER CHAPTER 33, AS AUTHORITATIVELY CONSTRUED BY
THE SUPREME COURT OF APPEALS, A PERSON WHO ADVISES ANOTHER THAT HIS
LEGAL RIGHTS HAVE BEEN INFRINGED AND REFERS HIM TO A PARTICULAR
ATTORNEY OR GROUP OF ATTORNEYS (FOR EXAMPLE, TO THE VIRGINIA
CONFERENCE'S LEGAL STAFF) FOR ASSISTANCE HAS COMMITTED A CRIME, AS HAS
THE ATTORNEY WHO KNOWINGLY RENDERS ASSISTANCE UNDER SUCH
CIRCUMSTANCES.  THERE THUS INHERES IN THE STATUTE THE GRAVEST DANGER OF
SMOTHERING ALL DISCUSSION LOOKING TO THE EVENTUAL INSTITUTION OF
LITIGATION ON BEHALF OF THE RIGHTS OF MEMBERS OF AN UNPOPULAR
MINORITY.  LAWYERS ON THE LEGAL STAFF OR EVEN MERE NAACP MEMBERS OR
SYMPATHIZERS WOULD UNDERSTANDABLY HESITATE, AT AN NAACP MEETING OR ON
ANY OTHER OCCASION, TO DO WHAT THE DECREE PURPORTS TO ALLOW, NAMELY,
ACQUAINT "PERSONS WITH WHAT THEY BELIEVE TO BE THEIR LEGAL RIGHTS AND
...  (ADVISE) THEM TO ASSERT THEIR RIGHTS BY COMMENCING OR FURTHER
PROSECUTING A SUIT  ...  ."  FOR IF THE LAWYERS, MEMBERS OR
SYMPATHIZERS ALSO APPEARED IN OR HAD ANY CONNECTION WITH ANY LITIGATION
SUPPORTED WITH NAACP FUNDS CONTRIBUTED UNDER THE PROVISION OF THE
DECREE BY WHICH THE NAACP IS NOT PROHIBITED "FROM CONTRIBUTING MONEY TO
PERSONS TO ASSIST THEM IN COMMENCING OR FURTHER PROSECUTING SUCH
SUITS," THEY PLAINLY WOULD RISK (IF LAWYERS) DISBARMENT PROCEEDINGS
AND, LAWYERS AND NONLAWYERS ALIKE, CRIMINAL PROSECUTION FOR THE OFFENSE
OF "SOLICITATION," TO WHICH THE VIRGINIA COURT GAVE SO BROAD AND
UNCERTAIN A MEANING.  IT MAKES NO DIFFERENCE WHETHER SUCH PROSECUTIONS
OR PROCEEDINGS WOULD ACTUALLY BE COMMENCED.  IT IS ENOUGH THAT A VAGUE
AND BROAD STATUTE LENDS ITSELF TO SELECTIVE ENFORCEMENT AGAINST
UNPOPULAR CAUSES.  WE CANNOT CLOSE OUR EYES TO THE FACT THAT THE
MILITANT NEGRO CIVIL RIGHTS MOVEMENT HAS ENGENDERED THE INTENSE
RESENTMENT AND OPPOSITION OF THE POLITICALLY DOMINANT WHITE COMMUNITY
OF VIRGINIA; (FN15) LITIGATION ASSISTED BY THE NAACP HAS BEEN BITTERLY
FOUGHT.  (FN16)  IN SUCH CIRCUMSTANCES, A STATUTE BROADLY CURTAILING
GROUP ACTIVITY LEADING TO LITIGATION MAY EASILY BECOME A WEAPON OF
OPPRESSION, HOWEVER EVEN-HANDED ITS TERMS APPEAR.  ITS MERE EXISTENCE
COULD WELL FREEZE OUT OF EXISTENCE ALL SUCH ACTIVITY ON BEHALF OF THE
CIVIL RIGHTS OF NEGRO CITIZENS. 

IT IS APPARENT, THEREFORE, THAT CHAPTER 33 AS CONSTRUED LIMITS FIRST
AMENDMENT FREEDOMS.  AS THIS COURT SAID IN THOMAS V. COLLINS, 323 U.S.
516, 537, "'FREE TRADE IN IDEAS' MEANS FREE TRADE IN THE OPPORTUNITY TO
PERSUADE TO ACTION, NOT MERELY TO DESCRIBE FACTS."  THOMAS WAS
CONVICTED FOR DELIVERING A SPEECH IN CONNECTION WITH AN IMPENDING UNION
ELECTION UNDER NATIONAL LABOR RELATIONS BOARD AUSPICES, WITHOUT HAVING
FIRST REGISTERED AS A "LABOR ORGANIZER."  HE URGED WORKERS TO EXERCISE
THEIR RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT AND JOIN THE UNION
HE REPRESENTED.  THIS COURT HELD THAT THE REGISTRATION REQUIREMENT AS
APPLIED TO HIS ACTIVITIES WAS CONSTITUTIONALLY INVALID.  IN THE INSTANT
CASE, MEMBERS OF THE NAACP URGED NEGROES AGGRIEVED BY THE ALLEGEDLY
UNCONSTITUTIONAL SEGREGATION OF PUBLIC SCHOOLS IN VIRGINIA TO EXERCISE
THEIR LEGAL RIGHTS AND TO RETAIN MEMBERS OF THE ASSOCIATION'S LEGAL
STAFF.  LIKE THOMAS, THE ASSOCIATION AND ITS MEMBERS WERE ADVOCATING
LAWFUL MEANS OF VINDICATING LEGAL RIGHTS. 

WE HOLD THAT CHAPTER 33 AS CONSTRUED VIOLATES THE FOURTEENTH AMENDMENT
BY UNDULY INHIBITING PROTECTED FREEDOMS OF EXPRESSION AND ASSOCIATION. 
IN SO HOLDING, WE REJECT TWO FURTHER CONTENTIONS OF RESPONDENTS.  THE
FIRST IS THAT THE VIRGINIA SUPREME COURT OF APPEALS HAS GUARANTEED FREE
EXPRESSION BY EXPRESSLY CONFIRMING PETITIONER'S RIGHT TO CONTINUE ITS
ADVOCACY OF CIVIL-RIGHTS LITIGATION.  BUT IN LIGHT OF THE WHOLE DECREE
OF THE COURT, THE GUARANTEE IS OF PURELY SPECULATIVE VALUE.  AS
CONSTRUED BY THE COURT, CAHPTER 33, AT LEAST POTENTIALLY, PROHIBITS
EVERY COOPERATIVE ACTIVITY THAT WOULD MAKE ADVOCACY OF LITIGATION
MEANINGFUL.  IF THERE IS AN INTERNAL TENSION BETWEEN PROSCRIPTION AND
PROTECTION IN THE STATUTE, WE CANNOT ASSUME THAT, IN ITS SUBSEQUENT
ENFORCEMENT, AMBIGUITIES WILL BE RESOLVED IN FAVOR OF ADEQUATE
PROTECTION OF FIRST AMENDMENT RIGHTS.  BROAD PROPHYLACTIC RULES IN THE
AREA OF FREE EXPRESSION ARE SUSPECT.  SEE, E.G., NEAR V. MINNESOTA, 283
U.S. 697; SHELTON V. TUCKER, 364 U.S. 479; LOUISIANA EX REL. GREMILLION
V. NAACP, 366 U.S. 293.  CF. SCHNEIDER V. IRVINGTON, 308 U.S. 147,
162.  PRECISION OF REGULATION MUST BE THE TOUCHSTONE IN AN AREA SO
CLOSELY TOUCHING OUR MOST PRECIOUS FREEDOMS. 
                   C. 

THE SECOND CONTENTION IS THAT VIRGINIA HAS A SUBORDINATING INTEREST
IN THE REGULATION OF THE LEGAL PROFESSION, EMBODIED IN CHAPTER 33,
WHICH JUSTIFIES LIMITING PETITIONER'S FIRST AMENDMENT RIGHTS. 
SPECIFICALLY, VIRGINIA CONTENDS THAT THE NAACP'S ACTIVITIES IN
FURTHERANCE OF LITIGATION, BEING "IMPROPER SOLICITATION" UNDER THE
STATE STATUTE, FALL WITHIN THE TRADITIONAL PURVIEW OF STATE REGULATION
OF PROFESSIONAL CONDUCT.  HOWEVER, THE STATE'S ATTEMPT TO EQUATE THE
ACTIVITIES OF THE NAACP AND ITS LAWYERS WITH COMMON-LAW BARRATRY,
MAINTENANCE AND CHAMPERTY, (FN17) AND TO OUTLAW THEM ACCORDINGLY,
CANNOT OBSCURE THE SERIOUS ENCROACHMENT WORKED BY CHAPTER 33 UPON
PROTECTED FREEDOMS OF EXPRESSION.  THE DECISIONS OF THIS COURT HAVE
CONSISTENTLY HELD THAT ONLY A COMPELLING STATE INTEREST IN THE
REGULATION OF A SUBJECT WITHIN THE STATE'S CONSTITUTIONAL POWER TO
REGULATE CAN JUSTIFY LIMITING FIRST AMENDMENT FREEDOMS.  THUS IT IS NO
ANSWER TO THE CONSTITUTIONAL CLAIMS ASSERTED BY PETITIONER TO SAY, AS
THE VIRGINIA SUPREME COURT OF APPEALS HAS SAID, THAT THE PURPOSE OF
THESE REGULATIONS WAS MERELY TO INSURE HIGH PROFESSIONAL STANDARDS AND
NOT TO CURTAIL FREE EXPRESSION.  FOR A STATE MAY NOT, UNDER THE GUISE
OF PROHIBITING PROFESSIONAL MISCONDUCT, IGNORE CONSTITUTIONAL RIGHTS. 
SEE SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232; KONIGSBERG V.
STATE BAR, 353 U.S. 252.  CF. IN RE SAWYER, 360 U.S. 622.  IN NAACP V.
ALABAMA EX REL. PATTERSON, 357 U.S. 449, 461, WE SAID "IN THE DOMAIN OF
THESE INDISPENSABLE LIBERTIES, WHETHER OF SPEECH, PRESS, OR
ASSOCIATION, THE DECISIONS OF THIS COURT RECOGNIZE THAT ABRIDGEMENT OF
SUCH RIGHTS, EVEN THOUGH UNINTENDED, MAY INEVITABLY FOLLOW FROM VARIED
FORMS OF GOVERNMENTAL ACTION."  LATER, IN BATES V. LITTLE ROCK, 361
U.S. 516, 524, WE SAID, "WHERE THERE IS A SIGNIFICANT ENCROACHMENT UPON
PERSONAL LIBERTY, THE STATE MAY PREVAIL ONLY UPON SHOWING A
SUBORDINATING INTEREST WHICH IS COMPELLING."  MOST RECENTLY, IN
LOUISIANA EX REL. GREMILLION V. NAACP, 366 U.S. 293, 297, WE REAFFIRMED
THIS PRINCIPLE: "  ...  REGULATORY MEASURES  ...  NO MATTER HOW
SOPHISTICATED, CANNOT BE EMPLOYED IN PURPOSE OR IN EFFECT TO STIFLE,
PENALIZE, OR CURB THE EXERCISE OF FIRST AMENDMENT RIGHTS." 

HOWEVER VALID MAY BE VIRGINIA'S INTEREST IN REGULATING THE
TRADITIONALLY ILLEGAL PRACTICES OF BARRATRY, MAINTENANCE AND CHAMPERTY,
THAT INTEREST DOES NOT JUSTIFY THE PROHIBITION OF THE NAACP ACTIVITIES
DISCLOSED BY THIS RECORD.  MALICIOUS INTENT WAS OF THE ESSENCE OF THE
COMMON-LAW OFFENSES OF FOMENTING OR STIRRING UP LITIGATION.  (FN18)
AND WHATEVER MAY BE OR MAY HAVE BEEN TRUE OF SUITS AGAINST GOVERNMENT
IN OTHER COUNTRIES, THE EXERCISE IN OUR OWN, AS IN THIS CASE, OF FIRST
AMENDMENT RIGHTS TO ENFORCE CONSTITUTIONAL RIGHTS THROUGH LITIGATION,
AS A MATTER OF LAW, CANNOT BE DEEMED MALICIOUS.  EVEN MORE MODERN,
SUBTLER REGULATIONS OF UNPROFESSIONAL CONDUCT OR INTERFERENCE WITH
PROFESSIONAL RELATIONS, NOT INVOLVING MALICE, WOULD NOT TOUCH THE
ACTIVITIES AT BAR; REGULATIONS WHICH REFLECT HOSTILITY TO STIRRING UP
LITIGATION HAVE BEEN AIMED CHIEFLY AT THOSE WHO URGE RECOURSE TO THE
COURTS FOR PRIVATE GAIN, SERVING NO PUBLIC INTEREST.  (FN19)  HOSTILITY
STILL EXISTS TO STIRRING UP PRIVATE LITIGATION WHERE IT PROMOTES THE
USE OF LEGAL MACHINERY TO OPPRESS:  AS, FOR EXAMPLE, TO SOW DISCORD IN
A FAMILY; (FN20) TO EXPOSE INFIRMITIES IN LAND TITLES, AS BY HUNTING UP
CLAIMS OF ADVERSE POSSESSION; (FN21) TO HARASS LARGE COMPANIES THROUGH
A MULTIPLICITY OF SMALL CLAIMS; (FN22) OR TO OPPRESS DEBTORS AS BY
SEEKING OUT UNSATISFIED JUDGMENTS.  (FN23)  FOR A MEMBER OF THE BAR TO
PARTICIPATE, DIRECTLY OR THROUGH INTERMEDIARIES, IN SUCH MISUSES OF THE
LEGAL PROCESS IS CONDUCT TRADITIONALLY CONDEMNED AS INJURIOUS TO THE
PUBLIC.  AND BEYOND THIS, FOR A LAWYER TO ATTEMPT TO REAP GAIN BY
URGING ANOTHER TO ENGAGE IN PRIVATE LITIGATION HAS ALSO BEEN CONDEMNED:
THAT SEEMS TO BE THE IMPORT OF CANON 28, WHICH THE VIRGINIA SUPREME
COURT OF APPEALS HAS ADOPTED AS ONE OF ITS RULES.  (FN24) 

OBJECTION TO THE INTERVENTION OF A LAY INTERMEDIARY, WHO MAY CONTROL
LITIGATION OR OTHERWISE INTERFERE WITH THE RENDERING OF LEGAL SERVICES
IN A CONFIDENTIAL RELATIONSHIP, ALSO DERIVES FROM THE ELEMENT OF
PECUNIARY GAIN.  FEARFUL OF DANGERS THOUGHT TO ARISE FROM THAT ELEMENT,
THE COURTS OF SEVERAL STATES HAVE SUSTAINED REGULATIONS AIMED AT THESE
ACTIVITIES.  (FN25)  WE INTIMATE NO VIEW ONE WAY OR THE OTHER AS TO THE
MERITS OF THOSE DECISIONS WITH RESPECT TO THE PARTICULAR ARRANGEMENTS
AGAINST WHICH THEY ARE DIRECTED.  IT IS ENOUGH THAT THE SUPERFICIAL
RESEMBLANCE IN FORM BETWEEN THOSE ARRANGEMENTS AND THAT AT BAR CANNOT
OBSCURE THE VITAL FACT THAT HERE THE ENTIRE ARRANGEMENT EMPLOYES
CONSTITUTIONALLY PRIVILEGED MEANS OF EXPRESSION TO SECURE
CONSTITUTIONALLY GUARANTEED CIVIL RIGHTS.  (FN26)  THERE HAS BEEN NO
SHOWING OF A SERIOUS DANGER HERE OF PROFESSIONALLY REPREHENSIBLE
CONFLICTS OF INTEREST WHICH RULES AGAINST SOLICITATION FREQUENTLY SEEK
TO PREVENT.  THIS IS SO PARTLY BECAUSE NO MONETARY STAKES ARE INVOLVED,
AND SO THERE IS NO DANGER THAT THE ATTORNEY WILL DESERT OR SUBVERT THE
PARAMOUNT INTERESTS OF HIS CLIENT TO ENRICH HIMSELF OR AN OUTSIDE
SPONSOR.  AND THE AIMS AND INTERESTS OF NAACP HAVE NOT BEEN SHOWN TO
CONFLICT WITH THOSE OF ITS MEMBERS AND NONMEMBER NEGRO LITIGANTS;
COMPARE NAACP V. ALABAMA EX REL. PATTERSON, 357 U.S. 449, 459, WHERE WE
SAID: 

"(THE NAACP) AND ITS MEMBERS ARE IN EVERY PRACTICAL SENSE IDENTICAL. 
THE ASSOCIATION, WHICH PROVIDES IN ITS CONSTITUTION THAT 'ANY PERSON
WHO IS IN ACCORDANCE WITH (ITS) PRINCIPLES AND POLICIES  ...  'MAY
BECOME A MEMBER, IS BUT THE MEDIUM THROUGH WHICH ITS INDIVIDUAL MEMBERS
SEEK TO MAKE MORE EFFECTIVE THE EXPRESSION OF THEIR OWN VIEWS."  SEE
ALSO HARRISON V. NAACP, 360 U.S. 167, 177. 

RESORT TO THE COURTS TO SEEK VINDICATION OF CONSTITUTIONAL RIGHTS IS
A DIFFERENT MATTER FROM THE OPPRESSIVE, MALICIOUS, OR AVARICIOUS USE OF
THE LEGAL PROCESS FOR PURELY PRIVATE GAIN.  LAWSUITS ATTACKING RACIAL
DISCRIMINATION, AT LEAST IN VIRGINIA, ARE NEITHER VERY PROFITABLE NOR
VERY POPULAR.   THEY ARE NOT AN OBJECT OF GENERAL COMPETITION AMONG
VIRGINIA LAWYERS; (FN27) THE PROBLEM IS RATHER ONE OF AN APPARENT
DEARTH OF LAWYERS WHO ARE WILLING TO UNDERTAKE SUCH LITIGATION.  THERE
HAS BEEN NEITHER CLAIM NOR PROOF THAT ANY ASSISTED NEGRO LITIGANTS HAVE
DESIRED, BUT HAVE BEEN PREVENTED FROM RETAINING, THE SERVICES OF OTHER
COUNSEL.  WE REALIZE THAT AN NAACP LAWYER MUST DERIVE PERSONAL
SATISFACTION FROM PARTICIPATION IN LITIGATION ON BEHALF OF NEGRO
RIGHTS, ELSE HE WOULD HARDLY BE INCLINED TO PARTICIPATE AT THE RISK OF
FINANCIAL SACRIFICE.  BUT THIS WOULD NOT SEEM TO BE THE KIND OF
INTEREST OR MOTIVE WHICH INDUCES CRIMINAL CONDUCT. 

WE CONCLUDE THAT ALTHOUGH THE PETITIONER HAS AMPLY SHOWN THAT ITS
ACTIVITIES FALL WITHIN THE FIRST AMENDMENT'S PROTECTIONS, THE STATE HAS
FAILED TO ADVANCE ANY SUBSTANTIAL REGULATORY INTEREST, IN THE FORM OF
SUBSTANTIVE EVILS FLOWING FROM PETITIONER'S ACTIVITIES, WHICH CAN
JUSTIFY THE BROAD PROHIBITIONS WHICH IT HAS IMPOSED.  NOTHING THAT THIS
RECORD SHOWS AS TO THE NATURE AND PURPOSE OF NAACP ACTIVITIES PERMITS
AN INFERENCE OF ANY INJURIOUS INTERVENTION IN OR CONTROL OF LITIGATION
WHICH WOULD CONSTITUTIONALLY AUTHORIZE THE APPLICATION OF CHAPTER 33 TO
THOSE ACTIVITIES.  A FORTIORI, NOTHING IN THIS RECORD JUSTIFIES THE
BREADTH AND VAGUENESS OF THE VIRGINIA SUPREME COURT OF APPEALS'
DECREE. 

A FINAL OBSERVATION IS IN ORDER.  BECAUSE OUR DISPOSITION IS RESTED
ON THE FIRST AMENDMENT AS ABSORBED IN THE FOURTEENTH, WE DO NOT REACH
THE CONSIDERATIONS OF RACE OR RACIAL DISCRIMINATION WHICH ARE THE
PREDICATE OF PETITIONER'S CHALLENGE TO THE STATUTE UNDER THE EQUAL
PROTECTION CLAUSE.  THAT THE PETITIONER HAPPENS TO BE ENGAGED IN
ACTIVITIES OF EXPRESSION AND ASSOCIATION ON BEHALF OF THE RIGHTS OF
NEGRO CHILDREN TO EQUAL OPPORTUNITY IS CONSTITUTIONALLY IRRELEVANT TO
THE GROUND OF OUR DECISION.  THE COURSE OF OUR DECISIONS IN THE FIRST
AMENDMENT AREA MAKES PLAIN THAT ITS PROTECTIONS WOULD APPLY AS FULLY TO
THOSE WHO WOULD AROUSE OUR SOCIETY AGAINST THE OBJECTIVES OF THE
PETITIONER.  SEE, E.G., NEAR V. MINNESOTA, 283 U.S. 697; TERMINIELLO V.
CHICAGO, 337 U.S. 1; KUNZ V. NEW YORK, 340 U.S. 290.  FOR THE
CONSTITUTION PROTECTS EXPRESSION AND ASSOCIATION WITHOUT REGARD TO THE
RACE, CREED, OR POLITICAL OR RELIGIOUS AFFILIATION OF THE MEMBERS OF
THE GROUP WHICH INVOKES ITS SHIELD, OR TO THE TRUTH, POPULARITY, OR
SOCIAL UTILITY OF THE IDEAS AND BELIEFS WHICH ARE OFFERED.  REVERSED. 

FN1  NAACP V. PATTY, 159 F. SUPP. 503 (D.C.E.D. VA. 1958).  ON DIRECT
APPEAL UNDER 28 U.S.C.  SEC. 1253, FROM THE JUDGMENT STRIKING DOWN
CHAPTERS 31, 32 AND 35, THIS COURT REVERSED, REMANDING WITH
INSTRUCTIONS TO PERMIT THE COMPLAINANTS TO SEEK AN AUTHORITATIVE
INTERPRETATION OF THE STATUTES IN THE VIRGINIA COURTS.  HARRISON V.
NAACP, 360 U.S. 167.  IN ENSUING LITIGATION, THE CIRCUIT COURT OF THE
CITY OF RICHMOND HELD MOST OF THE PROVISIONS OF THE THREE CHAPTERS
UNCONSTITUTIONAL.  NAACP V. HARRISON, CHANCERY CAUSES NO. B-2879 AND
NO. B-2880, AUG. 31, 1962. 

FN2  NAACP V. HARRISON, 202 VA. 142, 116 S.E.2D 55 (1960).  CHAPTER
36, WHICH IS CODIFIED IN SEC. 18.1-394 ET SEQ., CODE OF VIRGINIA (1960
REPL.  VOL.), PROHIBITS THE ADVOCACY OF SUITS AGAINST THE COMMONWEALTH
AND THE GIVING OF ANY ASSISTANCE, FINANCIAL OR OTHERWISE, TO SUCH
SUITS. 

FN3  CERTIORARI WAS FIRST GRANTED SUB NOM. NAACP V. GRAY.  THE
LITIGATION BEGAN SUB NOM.  NAACP V. PATTY, ATTORNEY GENERAL OF
VIRGINIA.  DURING THE COURSE OF THE LITIGATION THE NAMES OF SUCCESSIVE
HOLDERS OF THAT OFFICE HAVE BEEN SUBSTITUTED AS PARTY RESPONDENT.  SEE
SUPREME COURT RULE 48, PAR. 3, AS AMENDED.  366 U.S. 979. 

FN4  HOWEVER, THE RECORD CONTAINS TWO INSTANCES WHERE NEGRO LITIGANTS
HAD RETAINED ATTORNEYS, NOT ON THE LEGAL STAFF, PRIOR TO SEEKING
FINANCIAL ASSISTANCE FROM THE CONFERENCE.  THE CONFERENCE RENDERED
SUBSTANTIAL FINANCIAL ASSISTANCE IN BOTH CASES.  IN ONE CASE THE
CONFERENCE PAID THE ATTORNEY'S FEE. 

FN5  THE DEFENSE FUND, WHICH IS NOT INVOLVED IN THE PRESENT PHASE OF
THE LITIGATION, IS A COMPANION BODY TO THE NAACP.  IT IS ALSO A
NONPROFIT NEW YORK CORPORATION LICENSED TO DO BUSINESS IN VIRGINIA, AND
HAS THE SAME GENERAL PURPOSES AND POLICIES AS THE NAACP.  THE FUND
MAINTAINS A LEGAL STAFF IN NEW YORK CITY AND RETAINS REGIONAL COUNSEL
ELSEWHERE, ONE OF WHOM IS IN VIRGINIA.  SOCIAL SCIENTISTS, LAW
PROFESSORS AND LAW STUDENTS THROUGHOUT THE COUNTRY DONATE THEIR
SERVICES TO THE FUND WITHOUT COMPENSATION.  WHEN REQUESTED BY THE
NAACP, THE DEFENSE FUND PROVIDES ASSISTANCE IN THE FORM OF LEGAL
RESEARCH AND COUNSEL. 

FN6  SEVEN PERSONS WHO WERE OR HAD BEEN PLAINTIFFS IN VIRGINIA PUBLIC
SCHOOL SUITS DID TESTIFY THAT THEY WERE UNAWARE OF THEIR STATUS AS
PLAINTIFFS AND IGNORANT OF THE NATURE AND PURPOSE OF THE SUITS TO WHICH
THEY WERE PARTIES.  IT DOES NOT APPEAR, HOWEVER, THAT THE NAACP HAD
BEEN RESPONSIBLE FOR THEIR INVOLVEMENT IN LITIGATION.  THESE PLAINTIFFS
TESTIFIED THAT THEY HAD ATTENDED MEETINGS OF PARENTS WITHOUT GRASPING
THE MEANING OF THE DISCUSSIONS, HAD SIGNED AUTHORIZATIONS EITHER
WITHOUT READING OR WITHOUT UNDERSTANDING THEM, AND THEREAFTER HAD PAID
NO HEED TO THE FREQUENT MEETINGS OF PARENTS CALLED TO KEEP THEM ABREAST
OF LEGAL DEVELOPMENTS.  THEY ALSO TESTIFIED THAT THEY WERE NOT
ACCUSTOMED TO READ NEWSPAPERS OR LISTEN TO THE RADIO.  THUS THEY SEEM
TO HAVE HAD LITTLE GRASP OF WHAT WAS GOING ON IN THE COMMUNITIES.  TWO
OF THESE SEVEN PLAINTIFFS HAD BEEN PERSUADED TO SIGN AUTHORIZATIONS BY
THEIR OWN CHILDREN, WHO HAD PICKED UP FORMS AT NAACP MEETINGS.  FIVE
WERE PLAINTIFFS IN THE PRINCE EDWARD COUNTY SCHOOL LITIGATION, IN WHICH
186 PERSONS WERE JOINED AS PLAINTIFFS.  SEE NAACP V. PATTY, 159 F.
SUPP. 503, 517 (D.C.E.D. VA. 1958). 

FN7  CODE OF VIRGINIA, 1950, SECS. 54-74, 54-78, AND 54-79, AS
AMENDED BY ACTS OF 1956, EX. SESS., C. 33 (REPL.  VOL.  1958), READ IN
PERTINENT PART AS FOLLOWS: 

"SEC. 54-74.  ...  IF THE SUPREME COURT OF APPEALS, OR ANY COURT OF
RECORD OF THIS STATE, OBSERVES, OR IF COMPLAINT, VERIFIED BY AFFIDAVIT,
BE MADE BY ANY PERSON TO SUCH COURT OF ANY MALPRACTICE OR OF ANY
UNLAWFUL OR DISHONEST OR UNWORTHY OR CORRUPT OR UNPROFESSIONAL CONDUCT
ON THE PART OF ANY ATTORNEY, OR THAT ANY PERSON PRACTICING LAW IS NOT
DULY LICENSED TO PRACTICE IN THIS STATE, SUCH COURT SHALL, IF IT DEEMS
THE CASE A PROPER ONE FOR SUCH ACTION, ISSUE A RULE AGAINST SUCH
ATTORNEY OR OTHER PERSON TO SHOW CAUSE WHY HIS LICENSE TO PRACTICE LAW
SHALL NOT BE REVOKED OR SUSPENDED. 

     *         *         * *         * 

"UPON THE HEARING, IF THE DEFENDANT BE FOUND GUILTY BY THE COURT, HIS
LICENSE TO PRACTICE LAW IN THIS STATE SHALL BE REVOKED, OR SUSPENDED
FOR SUCH TIME AS THE COURT MAY PRESCRIBE; PROVIDED, THAT THE COURT, IN
LIEU OF REVOCATION OR SUSPENSION, MAY, IN ITS DISCRETION, REPRIMAND
SUCH ATTORNEY. 

  *         *         *         *         * 

"'ANY MALPRACTICE OR ANY UNLAWFUL OR DISHONEST OR UNWORTHY OR CORRUPT
OR UNPROFESSIONAL CONDUCT,' AS USED IN THIS SECTION, SHALL BE CONSTRUED
TO INCLUDE THE IMPROPER SOLICITATION OF ANY LEGAL OR PROFESSIONAL
BUSINESS OR EMPLOYMENT, EITHER DIRECTLY OR INDIRECTLY, OR THE
ACCEPTANCE OF EMPLOYMENT, RETAINER, COMPENSATION OR COSTS FROM ANY
PERSON, PARTNERSHIP, CORPORATION, ORGANIZATION OR ASSOCIATION WITH
KNOWLEDGE THAT SUCH PERSON, PARTNERSHIP, CORPORATION, ORGANIZATION OR
ASSOCIATION HAS VIOLATED ANY PROVISION OF ARTICLE 7 OF THIS CHAPTER
(SECS. 54-78 TO 54-83.1), OR THE FAILURE, WITHOUT SUFFICIENT CAUSE,
WITHIN A REASONABLE TIME AFTER DEMAND, OF ANY ATTORNEY AT LAW, TO PAY
OVER AND DELIVER TO THE PERSON ENTITLED THERETO, ANY MONEY, SECURITY OR
OTHER PROPERTY, WHICH HAS COME INTO HIS HANDS AS SUCH ATTORNEY;
PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS ARTICLE SHALL BE
CONSTRUED TO IN ANY WAY PROHIBIT ANY ATTORNEY FROM ACCEPTING EMPLOYMENT
TO DEFEND ANY PERSON, PARTNERSHIP, CORPORATION, ORGANIZATION OR
ASSOCIATION ACCUSED OF VIOLATING THE PROVISIONS OF ARTICLE 7 OF THIS
CHAPTER.           *         *         *         *         * 

"SEC. 54-78.  ...  (1) A 'RUNNER' OR 'CAPPER' IS ANY PERSON,
CORPORATION, PARTNERSHIP OR ASSOCIATION ACTING IN ANY MANNER OR IN ANY
CAPACITY AS AN AGENT FOR AN ATTORNEY AT LAW WITHIN THIS STATE OR FOR
ANY PERSON, PARTNERSHIP, CORPORATION, ORGANIZATION OR ASSOCIATION WHICH
EMPLOYS RETAINS OR COMPENSATES ANY ATTORNEY AT LAW IN CONNECTION WITH
ANY JUDICIAL PROCEEDING IN WHICH SUCH PERSON, PARTNERSHIP, CORPORATION,
ORGANIZATION OR ASSOCIATION IS NOT A PARTY AND IN WHICH IT HAS NO
PECUNIARY RIGHT OR LIABILITY, IN THE SOLICITATION OR PROCUREMENT OF
BUSINESS FOR SUCH ATTORNEY AT LAW * OR FOR SUCH PERSON, PARTNERSHIP,
CORPORATION, ORGANIZATION OR ASSOCIATION IN CONNECTION WITH ANY
JUDICIAL PROCEEDINGS FOR WHICH SUCH ATTORNEY OR SUCH PERSON,
PARTNERSHIP, CORPORATION, ORGANIZATION OR ASSOCIATION IS EMPLOYED,
RETAINED OR COMPENSATED. 

"THE FACT THAT ANY PERSON, PARTNERSHIP, CORPORATION, ORGANIZATION OR
ASSOCIATION IS A PARTY TO ANY JUDICIAL PROCEEDING SHALL NOT AUTHORIZE
ANY RUNNER OR CAPPER TO SOLICIT OR PROCURE BUSINESS FOR SUCH PERSON,
PARTNERSHIP, CORPORATION, ORGANIZATION OR ASSOCIATION OR ANY ATTORNEY
AT LAW EMPLOYED, RETAINED OR COMPENSATED BY SUCH PERSON, PARTNERSHIP,
CORPORATION, ORGANIZATION OR ASSOCIATION. 

"(2)  AN 'AGENT' IS ONE WHO REPRESENTS ANOTHER IN DEALING WITH A
THIRD PERSON OR PERSONS. 

"SEC. 54-79.  ...  IT SHALL BE UNLAWFUL FOR ANY PERSON, CORPORATION,
PARTNERSHIP OR ASSOCIATION TO ACT AS A RUNNER OR CAPPER * AS DEFINED IN
SEC. 54-78 TO SOLICIT ANY BUSINESS FOR * AN ATTORNEY AT LAW OR SUCH
PERSON, PARTNERSHIP, CORPORATION, ORGANIZATION OR ASSOCIATION, IN AND
ABOUT THE STATE PRISONS, COUNTY JAILS, CITY JAILS, CITY PRISONS, OR
OTHER PLACES OF DETENTION OF PERSONS, CITY RECEIVING HOSPITALS, CITY
AND COUNTY RECEIVING HOSPITALS, COUNTY HOSPITALS, POLICE COURTS, *
COUNTY COURTS, MUNICIPAL COURTS, * COURTS OF RECORD, OR IN ANY PUBLIC
INSTITUTION OR IN ANY PUBLIC PLACE OR UPON ANY PUBLIC STREET OR HIGHWAY
OR IN AND ABOUT PRIVATE HOSPITALS, SANITARIUMS OR IN AND ABOUT ANY
PRIVATE INSTITUTION OR UPON PRIVATE PROPERTY OF ANY CHARACTER
WHATSOEVER."  CODE OF VIRGINIA, 1950, SECS. 54-82, 54-83.1 , AS AMENDED
(REPL.  VOL.  1958), PROVIDE: 

"SEC. 54.82.  PENALTY FOR VIOLATION:  ANY PERSON, CORPORATION,
PARTNERSHIP OR ASSOCIATION VIOLATING ANY OF THE PROVISIONS OF THIS
ARTICLE SHALL BE GUILTY OF A MISDEMEANOR, AND SHALL BE PUNISHABLE BY A
FINE OF NOT LESS THAN ONE HUNDRED DOLLARS NOR MORE THAN FIVE HUNDRED
DOLLARS, OR BY IMPRISONMENT FOR NOT LESS THAN ONE MONTH NOR MORE THAN
SIX MONTHS, OR BY BOTH SUCH FINE AND IMPRISONMENT  ...  . 

"SEC. 54-83.1.  INJUNCTION AGAINST RUNNING, CAPPING, SOLICITING AND
MAINTENANCE:  THE COMMONWEALTH'S ATTORNEY, OR ANY PERSON, FIRM OR
CORPORATION AGAINST WHOM ANY CLAIM FOR DAMAGE TO PROPERTY OR DAMAGES
FOR PERSONAL INJURIES OR FOR DEATH RESULTING THEREFROM, IS OR HAS BEEN
ASSERTED, MAY MAINTAIN A SUIT IN EQUITY AGAINST ANY PERSON WHO HAS
SOLICITED EMPLOYMENT FOR HIMSELF OR HAS INDUCED ANOTHER TO SOLICIT OR
ENCOURAGE HIS EMPLOYMENT, OR AGAINST ANY PERSON, FIRM, PARTNERSHIP OR
ASSOCIATION WHICH HAS ACTED FOR ANOTHER IN THE CAPACITY OF A RUNNER OR
CAPPER OR WHICH HAS BEEN STIRRING UP LITIGATION IN SUCH A WAY AS TO
CONSTITUTE MAINTENANCE WHETHER SUCH SOLICITATION WAS SUCCESSFUL OR NOT,
TO ENJOIN AND PERMANENTLY RESTRAIN SUCH PERSON, HIS AGENTS,
REPRESENTATIVES AND PRINCIPALS FROM SOLICITING ANY SUCH CLAIMS AGAINST
ANY PERSON, FIRM OR CORPORATION SUBSEQUENT TO THE DATE OF THE
INJUNCTION." 

FN8  171 VA., PP. XXXII-XXXIII, XXXV (1938).  CANON 35 READS IN PART
AS FOLLOWS: 

"INTERMEDIARIES:  THE PROFESSIONAL SERVICES OF A LAWYER SHOULD NOT BE
CONTROLLED OR EXPLOITED BY ANY LAY AGENCY, PERSONAL OR CORPORATE, WHICH
INTERVENES BETWEEN CLIENT AND LAWYER.  A LAWYER'S RESPONSIBILITIES AND
QUALIFICATIONS ARE INDIVIDUAL.  HE SHOULD AVOID ALL RELATIONS WHICH
DIRECT THE PERFORMANCE OF HIS DUTIES BY OR IN THE INTEREST OF SUCH
INTERMEDIARY.  A LAWYER'S RELATION TO HIS CLIENT SHOULD BE PERSONAL,
AND THE RESPONSIBILITY SHOULD BE DIRECT TO THE CLIENT.  CHARITABLE
SOCIETIES RENDERING AID TO THE INDIGENT ARE NOT DEEMED SUCH
INTERMEDIARIES."  CANON 47 READS AS FOLLOWS: 

"AIDING THE UNAUTHORIZED PRACTICE OF LAW:  NO LAWYER SHALL PERMIT HIS
PROFESSIONAL SERVICES, OR HIS NAME, TO BE USED IN AID OF, OR TO MAKE
POSSIBLE, THE UNAUTHORIZED PRACTICE OF LAW BY ANY LAY AGENCY, PERSONAL
OR CORPORATE." 

FN9  "THE SOLICITATION OF LEGAL BUSINESS BY THE APPELLANTS, THEIR
OFFICERS, MEMBERS, AFFILIATES, VOLUNTARY WORKERS AND ATTORNEYS, AS
SHOWN BY THE EVIDENCE, VIOLATES CHAPTER 33 AND THE CANONS OF LEGAL
ETHICS: 

"  ...  ATTORNEYS WHO ACCEPT EMPLOYMENT BY APPELLANTS TO REPRESENT
LITIGANTS IN SUITS SOLICITED BY THE APPELLANTS, OR THOSE ASSOCIATED
WITH THEM, ARE VIOLATING CHAPTER 33 AND THE CANONS OF LEGAL ETHICS: 

     *         *         *         *      * 

"  ...  APPELLANTS AND THOSE ASSOCIATED WITH THEM MAY NOT BE
PROHIBITED FROM ACQUAINTING PERSONS WITH WHAT THEY BELIEVE TO BE THEIR
LEGAL RIGHTS AND ADVISING THEM TO ASSERT THEIR RIGHTS BY COMMENCING OR
FURTHER PROSECUTING A SUIT AGAINST THE COMMONWEALTH OF VIRGINIA, ANY
DEPARTMENT, AGENCY OR POLITICAL SUBDIVISION THEREOF, OR ANY PERSON
ACTING AS AN OFFICER OR EMPLOYEE OF SUCH, BUT IN SO ADVISING PERSONS TO
COMMENCE OR FURTHER PROSECUTE SUCH SUITS THE APPELLANTS, OR THOSE
ASSOCIATED WITH THEM, SHALL NOT SOLICIT LEGAL BUSINESS FOR THEIR
ATTORNEYS OR ANY PARTICULAR ATTORNEYS; AND: 

"(B)  THE APPELLANTS AND THOSE ASSOCIATED WITH THEM MAY NOT BE
PROHIBITED FROM CONTRIBUTING MONEY TO PERSONS TO ASSIST THEM IN
COMMENCING OR FURTHER PROSECUTING SUCH SUITS, WHICH HAVE NOT BEEN
SOLICITED BY THE APPELLANTS OR THOSE ASSOCIATED WITH THEM, AND
CHANNELED BY THEM TO THEIR ATTORNEYS OR ANY OTHER ATTORNEYS."  202 VA.,
AT 164-165, 116 S.E.2D, AT 72. 

FN10  PETITIONER ALSO CLAIMS THAT CHAPTER 33 AS CONSTRUED DENIES
EQUAL PROTECTION OF THE LAWS, AND IS SO ARBITRARY AND IRRATIONAL AS TO
DEPRIVE PETITIONER OF PROPERTY WITHOUT DUE PROCESS OF LAW. 

FN11  IT IS UNCLEAR - AND IMMATERIAL - WHETHER THE VIRGINIA COURT'S
OPINION IS TO BE READ AS HOLDING THAT NAACP'S ACTIVITIES VIOLATED THE
CANONS BECAUSE THEY VIOLATED CHAPTER 33, OR AS REINFORCING ITS HOLDING
THAT CHAPTER 33 WAS VIOLATED BY FINDING AN INDEPENDENT VIOLATION OF THE
CANONS.  OUR HOLDING THAT PETITIONER'S ACTIVITIES ARE CONSTITUTIONALLY
PROTECTED APPLIES EQUALLY WHATEVER THE SOURCE OF VIRGINIA'S ATTEMPTED
PROHIBITION. 

FN12  MURPHY, THE SOUTH COUNTERATTACKS:  THE ANTI-NAACP LAWS, 12 W.
POL.  Q. 371 (1959).  SEE BENTLEY, THE PROCESS OF GOVERNMENT:  A STUDY
OF SOCIAL PRESSURES (1908); ROSENBLUM, LAW AS A POLITICAL INSTRUMENT
(1955); PELTASON, FEDERAL COURTS IN THE POLITICAL PROCESS (1955);
TRUMAN, THE GOVERNMENTAL PROCESS:  POLITICAL INTERESTS AND PUBLIC
OPINION (1955); VOSE, THE NATIONAL CONSUMER'S LEAGUE AND THE BRANDEIS
BRIEF, 1 MIDW.  J. OF POL.  SCI.  267 (1957); COMMENT, PRIVATE
ATTORNEYS-GENERAL:  GROUP ACTION IN THE FIGHT FOR CIVIL LIBERTIES, 58
YALE L.J. 574 (1949). 

FN13  CF. OPINION 148, COMMITTEE ON PROFESSIONAL ETHICS AND
GRIEVANCES, AMERICAN BAR ASSOCIATION (1935), RULING THAT THE LIBERTY
LEAGUE'S PROGRAM OF ASSISTING LITIGATION CHALLENGING NEW DEAL
LEGISLATION DID NOT CONSTITUTE UNPROFESSIONAL CONDUCT. 

FN14  AMSTERDAM, NOTE, THE VOID-FOR-VAGUENESS DOCTRINE IN THE SUPREME
COURT, 109 U. OF PA.  L. REV. 67, 75-76, 80-81, 96-104 (1960). 

FN15  SEE NAACP V. PATTY, 159 F. SUPP. 503, 516-517 (D.C.E.D. VA.
1958); DAVIS V. COUNTY SCHOOL BOARD, 149 F. SUPP. 431, 438-439
(D.C.E.D. VA. 1957), REV'D ON OTHER GROUNDS SUB NOM.  ALLEN V. COUNTY
SCHOOL BOARD, 249 F.2D 462 (C.A. 4TH CIR.); MUSE, VIRGINIA'S MASSIVE
RESISTANCE (1961), PASSIM. 

FN16  SEE, E.G., COUNTY SCHOOL BD. V. THOMPSON, 240 F.2D 59, 64 (C.A.
4TH CIR. 1956)(CONDUCT OF DEFENDANT TERMED A "CLEAR MANIFESTATION OF AN
ATTITUDE OF INTRANSIGENCE  ...  "); JAMES V. DUCKWORTH, 170 F. SUPP.
342, 350 (D.C.E.D. VA. 1959), AFF'D, 267 F.2D 224 (C.A. 4TH CIR.);
ALLEN V. COUNTY SCHOOL BD., 266 F.2D 507 (C.A. 4TH CIR. 1959); ALLEN V.
COUNTY SCHOOL BD., 198 F. SUPP. 497, 502 (D.C.E.D. VA. 1961).  MOST
NAACP-ASSISTED LITIGATION IN VIRGINIA IN RECENT YEARS HAS BEEN
LITIGATION CHALLENGING PUBLIC SCHOOL SEGREGATION.  THE SHEER MASS OF
SUCH (AND RELATED) LITIGATION IS AN INDICATION OF THE INTENSITY OF THE
STRUGGLE:  ALEXANDRIA:  JONES V. SCHOOL BD., 179 F. SUPP. 280 (D.C.E.D.
VA. 1959); JONES V. SCHOOL BD., 278 F.2D 72 (C.A. 4TH CIR. 1960);
ARLINGTON:  COUNTY SCHOOL BD. V. THOMPSON, 240 F.2D 59 (C.A. 4TH CIR.
1956); THOMPSON V. COUNTY SCHOOL BD., 144 F. SUPP. 239 (D.C.E.D. VA.
1956); 159 F. SUPP. 567 (D.C.E.D. VA. 1957); 166 F. SUPP. 529 (D.C.E.D.
VA. 1958); 252 F.2D 929 (C.A. 4TH CIR. 1958); 2 RACE REL. 810 (D.C.E.D.
VA. 1957); 4 RACE REL. 609 (D.C.E.D. VA. 1959); 4 RACE REL. 880
(D.C.E.D. VA. 1959); HAMM V. SCHOOL BD. OF ARLINGTON CO., 263 F.2D 226
(C.A. 4TH CIR. 1959); 264 F.2D 945 (C.A. 4TH CIR. 1959). 
CHARLOTTESVILLE:  SCHOOL BD. V. ALLEN, 240 F.2D 59 (C.A.  4TH CIR.
1956); ALLEN V. SCHOOL BD., 1 RACE REL. 886 (D.C.W.D. VA. 1956); 2 RACE
REL. 986 (D.C.W.D. VA. 1957); 3 RACE REL. 937 (D.C.W.D. VA. 1958); 4
RACE REL. 881 (D.C.W.D. VA. 1959); 263 F.2D 295 (C.A. 4TH CIR. 1959);
203 F. SUPP. 225 (D.C.W.D. VA. 1961); DODSON V. SCHOOL BD., 289 F.2D
439 (C.A. 4TH CIR. 1961); DILLARD V. SCHOOL BD., 308 F.2D 920 (C.A. 4TH
CIR. 1962).  FAIRFAX COUNTY:  BLACKWELL V. FAIRFAX CO. SCHOOL BD., 5
RACE REL. 1056 (D.C.E.D. VA. 1960).  FLOYD COUNTY:  WALKER V. FLOYD CO.
SCHOOL BD., 5 RACE REL. 1060 (D.C.W.D. VA. 1960); 5 RACE REL. 714
(D.C.W.D. VA. 1960).  GRAYSON COUNTY:  GOINS V. COUNTY SCHOOL BD., 186
F. SUPP. 753 (D.C.W.D. VA. 1960); 282 F.2D 343 (C.A. 4TH CIR. 1960). 
NORFOLK:  BECKETT V. SCHOOL BD., 2 RACE REL. 337 (D.C.E.D. VA. 1957);
148 F. SUPP. 430 (D.C.E.D. VA. 1957); 3 RACE REL. 942-964 (D.C.E.D. VA.
1958); 260 F.2D 18 (C.A. 4TH CIR. 1958); 246 F.2D 325 (C.A. 4TH CIR.
1957); 181 F. SUPP. 870 (D.C.E.D. VA. 1959); 185 F. SUPP. 459 (D.C.E.D.
VA. 1959); FARLEY V. TURNER, 281 F.2D 131 (C.A. 4TH CIR. 1960); HILL V.
SCHOOL BD., 282 F.2D 473 (C.A. 4TH CIR. 1960); JAMES V. DUCKWORTH, 170
F. SUPP. 342 (D.C.E.D. VA. 1959); 267 F.2D 224 (C.A. 4TH CIR. 1959);
ADKINSON V. SCHOOL BD. OF NEWPORT NEWS, 3 RACE REL. 938 (D.C.E.D. VA.
1958); ADKINS V. SCHOOL BD. OF NEWPORT NEWS, 148 F. SUPP. 430 (D.C.E.D.
VA. 1957); 2 RACE REL. 334 (D.C.E.D. VA. 1957); 246 F.2D 325 (C.A. 4TH
CIR. 1957); HARRISON V. DAY, 200 VA. 439, 106 S.E.2D 636 (1959); JAMES
V. ALMOND, 170 F. SUPP. 331 (D.C.E.D. VA. 1959).  PRINCE EDWARD COUNTY:
DAVIS V. SCHOOL BD.  OF PRINCE EDWARD CO., 347 U S. 483; 349 U.S. 294;
1 RACE REL. 82 (D.C.E.D. VA. 1955); 142 F. SUPP. 616 (D.C.E.D. VA.
1956); 149 F. SUPP. 431 (D.C.E.D. VA. 1957); ALLEN V. SCHOOL BD., 164
F. SUPP. 786 (D.C.E.D. VA. 1958); 249 F.2D 462 (C.A. 4TH CIR. 1957);
266 F.2D 507 (C.A.  4TH CIR. 1959); 6 RACE REL. 432 (D.C.E.D. VA.
1961); 198 F. SUPP. 497 (D.C.E.D. VA. 1961); SOUTHERN SCHOOL NEWS, AUG.
1962, P. 1.  PULASKI COUNTY:  CRISP V. PULASKI CO. SCHOOL BD., 5 RACE
REL. 721 (D.C.W.D. VA. 1960).  RICHMOND:  CALLOWAY V. FARLEY, 2 RACE
REL. 1121 (D.C.E.D.  VA. 1957); WARDEN V. RICHMOND SCHOOL BD., 3 RACE
REL. 971 (D.C.E.D. VA. 1958).  WARREN COUNTY:  KILBY V. COUNTY SCHOOL
BD., 3 RACE REL. 972-973 (D.C.W.D. VA. 1958); COUNTY SCHOOL BD. V.
KILBY, 259 F.2D 497 (C.A. 4TH CIR. 1958). 

DESPITE THIS VOLUME OF LITIGATION, ONLY 1/2 OF 1% OF VIRGINIA'S NEGRO
PUBLIC SCHOOL PUPILS ATTEND SCHOOL WITH WHITES.  SOUTHERN SCHOOL NEWS,
SEPT. 1962, P. 3. 

FN17  SEE 4 BLACKSTONE, COMMENTARIES, 134-136.  SEE GENERALLY RADIN,
MAINTENANCE BY CHAMPERTY, 24 CAL. L. REV. 48 (1935). 

FN18  SEE, E.G., COMMONWEALTH V. MCCULLOCH, 15 MASS. 227 (1818);
BROWN V. BEAUCHAMP, 5 T.B.  MON.  413 (KY. 1827); PERKINS, CRIMINAL
LAW, 449-454 (1957); NOTE, 3 RACE REL. 1257-1259 (1958). 

THE EARLIEST REGULATION OF SOLICITATION OF LEGAL BUSINESS IN ENGLAND
WAS AIMED AT THE PRACTICE WHEREBY HOLDERS OF CLAIMS TO LAND CONVEYED
THEM TO GREAT FEUDAL LORDS, WHO USED THEIR POWER OR INFLUENCE TO HARASS
THE TITLEHOLDERS.  SEE WINFIELD, THE HISTORY OF CONSPIRACY AND ABUSE OF
LEGAL PROCEDURE, 152 (1921). 

FN19  SEE COMMENT:  A CRITICAL ANALYSIS OF RULES AGAINST SOLICITATION
BY LAWYERS, 25 U. OF CHI.  L. REV. 674 (1958).  BUT TRULY NONPECUNIARY
ARRANGEMENTS INVOLVING THE SOLICITATION OF LEGAL BUSINESS HAVE BEEN
FREQUENTLY UPHELD.  SEE IN RE ADES, 6 F. SUPP. 467 (D.C.D. MD.
1934)(LAWYER'S VOLUNTEERING HIS SERVICES TO A LITIGANT, WITHOUT BEING
ASKED, HELD NOT UNPROFESSIONAL WHERE "IMPORTANT ISSUES" WERE AT STAKE);
GUNNELS V. ATLANTA BAR ASSN., 191 GA.  366, 12 S.E.2D 602
(1940)(ARRANGEMENT WHEREBY A LOCAL BAR ASSOCIATION PUBLICLY OFFERED TO
REPRESENT, FREE OF CHARGE, PERSONS VICTIMIZED BY USURERS, UPHELD).  OF
PARTICULAR PERTINENCE TO THE INSTANT CASE IS OPINION 148, SUPRA, NOTE
13.  IN THE 1930'S, A NATIONAL LAWYERS COMMITTEE WAS FORMED UNDER THE
AUSPICES OF THE LIBERTY LEAGUE.  THE COMMITTEE PROPOSED (1) TO PREPARE
AND DISSEMINATE THROUGH THE PUBLIC MEDIA OF COMMUNICATIONS OPINIONS ON
THE CONSTITUTIONALITY OF STATE AND FEDERAL LEGISLATION (IT APPEARS,
PARTICULARLY NEW DEAL LEGISLATION); (2) TO OFFER COUNSEL, WITHOUT FEE
OR CHARGE, TO ANYONE FINANCIALLY UNABLE TO RETAIN COUNSEL WHO FELT THAT
SUCH LEGISLATION WAS VIOLATING HIS CONSTITUTIONAL RIGHTS.  THE ABA'S
COMMITTEE ON PROFESSIONAL ETHICS AND GRIEVANCES UPHELD THE
ARRANGEMENT.  OPINION 148, OPINIONS OF THE COMMITTEE ON PROFESSIONAL
ETHICS AND GRIEVANCES, AMERICAN BAR ASSOCIATION, 308-312 (1957); SEE
COMMENT, 36 COL. L. REV. 993.    ALSO, FOR EXAMPLE, THE AMERICAN CIVIL
LIBERTIES UNION HAS FOR MANY YEARS FURNISHED COUNSEL IN MANY CASES IN
MANY DIFFERENT PARTS OF THE COUNTRY, WITHOUT GOVERNMENTAL
INTERFERENCE.  ALTHOUGH THIS INTERVENTION IS MOSTLY IN THE FORM OF
AMICUS CURIAE BRIEFS, OCCASIONALLY COUNSEL EMPLOYED BY THE UNION
APPEARS DIRECTLY ON BEHALF OF THE LITIGANT.  SEE COMMENT, PRIVATE
ATTORNEYS-GENERAL: GROUP ACTION IN THE FIGHT FOR CIVIL LIBERTIES, 58
YALE L.J. 574, 576 (1949); ACLU REPORT ON CIVIL LIBERTIES 1951-1953,
PP. 9-10.    FN20  SEE ENCOURAGING DIVORCE LITIGATION AS GROUND FOR
DISBARMENT OR SUSPENSION, 9 A.L.R. 1500 (1920); "HEIR-HUNTING" AS
GROUND FOR DISCIPLINARY ACTION AGAINST ATTORNEY, 171 A.L.R. 351, 352
355 (1947). 

FN21  SEE BACKUS V. BYRON, 4 MICH. 535, 551-552 (1857). 

FN22  SEE MATTER OF CLARK, 184 N.Y. 222, 77 N.E. 1 (1906); GAMMONS V.
JOHNSON, 76 MINN.  76, 78 N.W. 1035 (1899). 

FN23  SEE PETITION OF HUBBARD, 267 S.W.2D 743 (KY. CT. APP. 1954). 

FN24  SEE 171 VA., P. XXIX, FOLLOWING THE AMERICAN BAR ASSOCIATION'S
CANONS OF PROFESSIONAL ETHICS, NO. 28:  "IT IS UNPROFESSIONAL FOR A
LAWYER TO VOLUNTEER ADVICE TO BRING A LAWSUIT, EXCEPT IN RARE CASES
WHERE TIES OF BLOOD, RELATIONSHIP OR TRUST MAKE IT HIS DUTY TO DO SO
...  .  IT IS DISREPUTABLE  ...  TO BREED LITIGATION BY SEEKING OUT
THOSE WITH CLAIMS FOR PERSONAL INJURIES OR THOSE HAVING ANY OTHER
GROUNDS OF ACTION IN ORDER TO SECURE THEM AS CLIENTS, OR TO EMPLOY
AGENTS OR RUNNERS FOR LIKE PURPOSES  ...  ." 

FN25  SEE PEOPLE EX REL. COURTNEY V. ASSOCIATION OF REAL ESTATE
TAXPAYERS, 354 ILL. 102, 187 N.E. 823 (1933)(ASSOCIATION TO CONTEST
CONSTITUTIONALITY OF TAX STATUTES IN WHICH PARTIES AND ASSOCIATION
ATTORNEYS HAD LARGE SUMS OF MONEY AT STAKE); IN THE MATTER OF MACLUB OF
AMERICA, INC., 295 MASS. 45, 3 N.E.2D 272 (1936)(MOTORISTS' ASSOCIATION
RECOMMENDED AND PAID THE FEES OF LAWYERS TO PROSECUTE OR DEFEND CLAIMS
ON BEHALF OF MOTORIST MEMBERS); SEE ALSO PEOPLE EX REL. CHICAGO BAR
ASSN. V. CHICAGO MOTOR CLUB, 362 ILL. 50, 199 N.E. 1 (1935).  ONE
ASPECT OF THE LAY INTERMEDIARY PROBLEM WHICH INVOLVED THE ABSENCE OF
EVIDENCE OF PALPABLE CONTROL OR INTERFERENCE WAS AN ARRANGEMENT ADOPTED
BY THE BROTHERHOOD OF RAILROAD TRAINMEN IN 1930 UNDER WHICH UNION
MEMBERS HAVING CLAIMS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT WERE
INDUCED TO RETAIN LAWYERS SELECTED BY THE BROTHERHOOD AND TO MAKE 25%
CONTINGENT FEE AGREEMENTS WITH SUCH LAWYERS.  THE ARRANGEMENT WAS
STRUCK DOWN BY SEVERAL STATE COURTS.  TO THE COURTS WHICH CONDEMNED THE
ARRANGEMENT IT APPEARED IN PRACTICAL EFFECT TO CONFER A MONOPOLY OF
FELA LEGAL BUSINESS UPON LAWYERS CHOSEN BY THE BROTHERHOOD.  THESE
COURTS ALSO SAW IT AS TENDING TO EMPOWER THE BROTHERHOOD TO EXCLUDE
LAWYERS FROM PARTICIPATION IN A LUCRATIVE PRACTICE, AND TO CAUSE THE
LOYALTIES OF THE UNION-RECOMMENDED LAWYERS TO BE DIVIDED BETWEEN THE
UNION AND THEIR CLIENTS.  E.G., HILDEBRAND V. STATE BAR, 36 CAL. 2D
504, 225 P.2D 508 (1950); DOUGHTY V. GRILLS, 37 TENN. APP. 63, 260
S.W.2D 379 (1952); IN RE BROTHERHOOD OF RAILROAD TRAINMEN, 13 ILL. 2D
391, 150 N.E.2D 163 (1958); SEE STUDENT SYMPOSIUM, 107 U. OF PA. L.
REV. 387 (1959); 11 STAN.  L. REV. 394 (1959).  THESE DECISIONS HAVE
BEEN VIGOROUSLY CRITICIZED.  SEE TRAYNOR, J., DISSENTING IN HILDEBRAND,
SUPRA; DRINKER, LEGAL ETHICS, 161-167 (1953). 

FN26  COMPARE OPINION 148, SUPRA, N. 13, 19, AT 312 (1957):  "THE
QUESTION PRESENTED, WITH ITS IMPLICATIONS, INVOLVES PROBLEMS OF
POLITICAL, SOCIAL AND ECONOMIC CHARACTER THAT HAVE LONG SINCE ASSUMED
THE PROPORTIONS OF NATIONAL ISSUES, ON ONE SIDE OR THE OTHER WHICH
MULTITUDES OF PATRIOTIC CITIZENS HAVE ALIGNED THEMSELVES.  THESE ISSUES
TRANSCEND THE RANGE OF PROFESSIONAL ETHICS." 

FN27  IMPROPER COMPETITION AMONG LAWYERS IS ONE OF THE IMPORTANT
CONSIDERATIONS RELIED UPON TO JUSTIFY REGULATIONS AGAINST
SOLICITATION.  SEE NOTE, ADVERTISING, SOLICITATION AND LEGAL ETHICS, 7
VAND.  L. REV. 677, 684 (1954). 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I ADD A FEW WORDS.  THIS
VIRGINIA ACT IS NOT APPLIED ACROSS THE BOARD TO ALL GROUPS THAT USE
THIS METHOD OF OBTAINING AND MANAGING LITIGATION, BUT INSTEAD REFLECTS
A LEGISLATIVE PURPOSE TO PENALIZE THE N.A.A.C.P. BECAUSE IT PROMOTES
DESEGREGATION OF THE RACES.  OUR DECISION IN BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, HOLDING THAT MAINTENANCE OF PUBLIC SCHOOLS
SEGREGATED BY RACE VIOLATED THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, WAS ANNOUNCED MAY 17, 1954.  THE AMENDMENTS TO
VIRGINIA'S CODE, HERE IN ISSUE, WERE ENACTED IN 1956.   ARKANSAS,
FLORIDA, GEORGIA, MISSISSIPPI, SOUTH CAROLINA, AND TENNESSEE* ALSO
PASSED LAWS FOLLOWING OUR 1954 DECISION WHICH BROUGHT WITHIN THEIR
BARRATRY STATUTES ATTORNEYS PAID BY AN ORGANIZATION SUCH AS THE
N.A.A.C.P. AND REPRESENTING LITIGANTS WITHOUT CHARGE. 

*ARK. STAT. ANN., 1947 (CUM. SUPP. 1961), SECS. 41-703 TO 41-713;
FLA. STAT. ANN., 1944 (CUM. SUPP. 1962), SECS. 877.01 TO 877.02; GA.
CODE ANN., 1953 (CUM. SUPP. 1961), SECS. 26-4701, 26-4703; MISS.  CODE
ANN., 1956, SECS. 2049-01 TO 2049-08; S.C. CODE, 1952 (CUM. SUPP.
1960), SECS. 56-147 TO 56-147.6; TENN. CODE ANN., 1956 (CUM. SUPP.
1962), SECS. 39-3405 TO 39-3410. 

THE BILL, HERE INVOLVED, WAS ONE OF FIVE THAT VIRGINIA ENACTED "AS
PARTS OF THE GENERAL PLAN OF MASSIVE RESISTANCE TO THE INTEGRATION OF
SCHOOLS OF THE STATE UNDER THE SUPREME COURT'S DECREES."  THOSE ARE THE
WORDS OF JUDGE SOPER, WRITING FOR THE COURT IN N.A.A.C.P. V. PATTY, 159
F. SUPP. 503, 515.  HE DID NOT INDULGE IN GUESSWORK.  HE REVIEWED THE
VARIOUS STEPS TAKEN BY VIRGINIA TO RESIST OUR BROWN DECISION, STARTING
WITH THE REPORT OF THE GRAY COMMISSION ON NOVEMBER 11, 1955.  ID., AT
512.  HE MENTIONED THE "INTERPOSITION RESOLUTION" PASSED BY THE GENERAL
ASSEMBLY ON FEBRUARY 1, 1956, THE CONSTITUTIONAL AMENDMENT MADE TO
CARRY OUT THE RECOMMENDATION OF THE REPORT OF THE GRAY COMMISSION, AND
THE ADDRESS OF THE GOVERNOR BEFORE THE GENERAL ASSEMBLY THAT ENACTED
THE FIVE LAWS, INCLUDING THE PRESENT ONE.  ID., AT 513-515.  THESE ARE
TOO LENGTHY TO REPEAT HERE.  BUT THEY MAKE CLEAR THE PURPOSE OF THE
PRESENT LAW - AS CLEAR A PURPOSE TO EVADE OUR PRIOR DECISIONS AS WAS
THE LEGISLATION IN LANE V. WILSON, 307 U.S. 268, ANOTHER INSTANCE OF A
DISCRIMINATORY STATE LAW.  THE FACT THAT THE CONTRIVANCE USED IS SUBTLE
AND INDIRECT IS NOT MATERIAL TO THE QUESTION.  "THE AMENDMENT NULLIFIES
SOPHISTICATED AS WELL AS SIMPLE-MINDED MODES OF DISCRIMINATION."  ID.,
AT 275.  THERE WE LOOKED TO THE ORIGINS OF THE STATE LAW AND THE
SETTING IN WHICH IT OPERATED TO FIND ITS DISCRIMINATORY NATURE.  IT IS
PROPER TO DO THE SAME HERE. 

DISCRIMINATION ALSO APPEARS ON THE FACE OF THIS ACT.  THE LINE DRAWN
IN SEC. 54-78 IS BETWEEN AN ORGANIZATION WHICH HAS "NO PECUNIARY RIGHT
OR LIABILITY" IN A JUDICIAL PROCEEDING AND ONE THAT DOES.   AS WE SAID
IN N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 459, THE N.A.A.C.P. AND ITS
MEMBERS ARE "IN EVERY PRACTICAL SENSE IDENTICAL.  THE ASSOCIATION  ...
IS BUT THE MEDIUM THROUGH WHICH ITS INDIVIDUAL MEMBERS SEEK TO MAKE
MORE EFFECTIVE THE EXPRESSION OF THEIR OWN VIEWS."  UNDER THE STATUTE
THOSE WHO PROTECT A "PECUNIARY RIGHT OR LIABILITY" AGAINST
UNCONSTITUTIONAL INVASIONS MAY INDULGE IN "THE SOLICITATION  ...  OF
BUSINESS FOR  ...  AN ATTORNEY," WHILE THOSE WHO PROTECT OTHER CIVIL
RIGHTS MAY NOT.  THIS DISTINCTION HELPS MAKE CLEAR THE PURPOSE OF THE
LEGISLATION, WHICH, AS JUDGE SOPER SAID, WAS PART OF THE PROGRAM OF
"MASSIVE RESISTANCE" AGAINST BROWN V. BOARD OF EDUCATION, SUPRA. 

MR. JUSTICE WHITE, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE THAT AS CONSTRUED BY THE VIRGINIA SUPREME COURT, CHAPTER 33
DOES NOT PROSCRIBE ONLY THE ACTUAL CONTROL OF LITIGATION AFTER ITS
COMMENCEMENT, THAT IT DOES FORBID, UNDER THREAT OF CRIMINAL PUNISHMENT,
ADVISING THE EMPLOYMENT OF PARTICULAR ATTORNEYS, AND THAT AS SO
CONSTRUED THE STATUTE IS UNCONSTITUTIONAL. 

NOR MAY THE STATUTE BE SAVED SIMPLY BY SAYING IT PROHIBITS ONLY THE
"CONTROL" OF LITIGATION BY A LAY ENTITY, FOR IT SEEMS TO ME THAT UPON
THE RECORD BEFORE US THE FINDING OF "CONTROL" BY THE VIRGINIA SUPREME
COURT MUST REST TO A GREAT EXTENT UPON AN INFERENCE FROM THE EXERCISE
OF THOSE VERY RIGHTS WHICH THIS COURT OR THE VIRGINIA SUPREME COURT, OR
BOTH, HOLD TO BE CONSTITUTIONALLY PROTECTED:  ADVISING NEGROES OF THEIR
CONSTITUTIONAL RIGHTS, URGING THEM TO INSTITUTE LITIGATION OF A
PARTICULAR KIND, RECOMMENDING PARTICULAR LAWYERS AND FINANCING SUCH
LITIGATION.  SURELY IT IS BEYOND THE POWER OF ANY STATE TO PREVENT THE
EXERCISE OF CONSTITUTIONAL RIGHTS IN THE NAME OF PREVENTING A LAY
ENTITY FROM CONTROLLING LITIGATION.  CONSEQUENTLY, I CONCUR IN THE
JUDGMENT OF THE COURT, BUT NOT IN ALL OF ITS OPINION. 

IF WE HAD BEFORE US, WHICH WE DO NOT, A NARROWLY DRAWN STATUTE
PROSCRIBING ONLY THE ACTUAL DAY-TO-DAY MANAGEMENT AND DICTATION OF THE
TACTICS, STRATEGY AND CONDUCT OF LITIGATION BY A LAY ENTITY SUCH AS THE
NAACP, THE ISSUE WOULD BE CONSIDERABLY DIFFERENT, AT LEAST FOR ME; FOR
IN MY OPINION NEITHER THE PRACTICE OF LAW BY SUCH AN ORGANIZATION NOR
ITS MANAGEMENT OF THE LITIGATION OF ITS MEMBERS OR OTHERS IS
CONSTITUTIONALLY PROTECTED.  BOTH PRACTICES ARE WELL WITHIN THE
REGULATORY POWER OF THE STATE.  IN THIS REGARD I AGREE WITH MY BROTHER
HARLAN. 

IT IS NOT AT ALL CLEAR TO ME, HOWEVER, THAT THE OPINION OF THE
MAJORITY WOULD NOT ALSO STRIKE DOWN SUCH A NARROWLY DRAWN STATUTE.  TO
THE EXTENT THAT IT WOULD, I AM IN DISAGREEMENT.  CERTAINLY THE NAACP,
AS I UNDERSTAND ITS POSITION BEFORE THIS COURT, DENIED THAT IT HAD
MANAGED OR CONTROLLED THE LITIGATION WHICH IT HAD URGED ITS MEMBERS OR
OTHERS TO BRING, DISCLAIMED ANY DESIRE TO DO SO AND DENIED ANY ADVERSE
EFFECTS UPON ITS OPERATIONS IF LAWYERS REPRESENTING CLIENTS IN SCHOOL
DESEGREGATION OR OTHER LITIGATION FINANCED BY THE NAACP REPRESENTED
ONLY THOSE CLIENTS AND WERE UNDER NO OBLIGATION TO FOLLOW THE DICTATES
OF THE NAACP IN THE CONDUCT OF THAT LITIGATION.  I WOULD AVOID DECIDING
A CASE NOT BEFORE THE COURT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE STEWART
JOIN, DISSENTING. 

NO MEMBER OF THIS COURT WOULD DISAGREE THAT THE VALIDITY OF STATE
ACTION CLAIMED TO INFRINGE RIGHTS ASSURED BY THE FOURTEENTH AMENDMENT
IS TO BE JUDGED BY THE SAME BASIC CONSTITUTIONAL STANDARDS WHETHER OR
NOT RACIAL PROBLEMS ARE INVOLVED.  NO WORSE SETBACK COULD BEFALL THE
GREAT PRINCIPLES ESTABLISHED BY BROWN V. BOARD OF EDUCATION, 347 U.S.
483, THAN TO GIVE FAIR-MINDED PERSONS REASON TO THINK OTHERWISE.  WITH
ALL RESPECT, I BELIEVE THAT THE STRIKING DOWN OF THIS VIRGINIA STATUTE
CANNOT BE SQUARED WITH ACCEPTED CONSTITUTIONAL DOCTRINE IN THE DOMAIN
OF STATE REGULATORY POWER OVER THE LEGAL PROFESSION. 

      I. 

AT THE OUTSET THE FACTUAL PREMISES ON WHICH THE VIRGINIA SUPREME
COURT OF APPEALS UPHELD THE APPLICATION OF CHAPTER 33 TO THE ACTIVITIES
OF THE NAACP IN THE AREA OF LITIGATION, AS WELL AS THE SCOPE OF THAT
COURT'S HOLDING, SHOULD BE DELINEATED. 

FIRST, THE LAWYERS WHO PARTICIPATE IN LITIGATION SPONSORED BY
PETITIONER ARE, ALMOST WITHOUT EXCEPTION, MEMBERS OF THE LEGAL STAFF OF
THE NAACP VIRGINIA STATE CONFERENCE.  (IT IS, IN FACT, AGAINST
CONFERENCE POLICY TO GIVE FINANCIAL SUPPORT TO LITIGATION NOT HANDLED
BY A STAFF LAWYER.)  AS SUCH, THEY ARE SELECTED BY PETITIONER, ARE
COMPENSATED BY IT FOR WORK IN LITIGATION (WHETHER OR NOT PETITIONER IS
A PARTY THERETO), AND SO LONG AS THEY REMAIN ON THE STAFF, ARE
NECESSARILY SUBJECT TO ITS DIRECTIONS.  AS THE COURT RECOGNIZES, IT IS
INCUMBENT ON STAFF MEMBERS TO AGREE TO ABIDE BY NAACP POLICIES. 

SECOND, IT IS EQUALLY CLEAR THAT THE NAACP'S DIRECTIONS, OR THOSE OF
ITS OFFICERS AND DIVISIONS, TO STAFF LAWYERS COVER MANY SUBJECTS
RELATING TO THE FORM AND SUBSTANCE OF LITIGATION.  THUS, IN 1950, IT
WAS RESOLVED AT A BOARD OF DIRECTORS MEETING THAT: 

"PLEADINGS IN ALL EDUCATIONAL CASES - THE PRAYER IN THE PLEADING AND
PROOF BE AIMED AT OBTAINING EDUCATION ON A NON-SEGREGATED BASIS AND
THAT NO RELIEF OTHER THAN THAT WILL BE ACCEPTABLE AS SUCH. 

"FURTHER, THAT ALL LAWYERS OPERATING UNDER SUCH RULE WILL URGE THEIR
CLIENT AND THE BRANCHES OF THE ASSOCIATION INVOLVED TO INSIST ON THIS
FINAL RELIEF." 

THE MINUTES OF THE MEETING WENT ON TO STATE: 

"MR. WEBER INQUIRED IF THIS MEANT THAT THE BRANCHES WOULD BE
PROHIBITED FROM STARTING EQUAL FACILITY CASES AND THE SPECIAL COUNSEL
SAID IT DID." 

IN 1955, SOUTHWIDE NAACP CONFERENCE ISSUED DIRECTIONS TO ALL NAACP
BRANCHES OUTLINING THE PROCEDURE FOR OBTAINING DESEGREGATION OF SCHOOLS
AND INDICATING THE POINT IN THE PROCEDURE AT WHICH LITIGATION SHOULD BE
BROUGHT AND THE MATTER TURNED OVER TO THE "LEGAL DEPARTMENT."  AT
APPROXIMATELY THE SAME TIME, THE EXECUTIVE SECRETARY OF THE VIRGINIA
STATE CONFERENCE ISSUED A DIRECTIVE URGING THAT IN VIEW OF THE
POSSIBILITY OF AN EXTENDED COURT FIGHT, "DISCRETION AND CARE SHOULD BE
EXERCISED TO SECURE PETITIONERS WHO WILL - IF NEED BE - GO ALL THE
WAY." 

A REPORT ISSUED SEVERAL YEARS LATER, PURPORTING TO GIVE AN "UP TO
DATE PICTURE" OF ACTION TAKEN IN VIRGINIA BY PETITIONER STATED:
"SELECTION OF SUIT SITES RESERVED FOR LEGAL STAFF"; "STATE LEGAL STAFF
READY FOR ACTION IN SELECTED AREAS"; AND "THE MAJORITY OF OUR BRANCHES
ARE WILLING TO SUPPORT LEGAL ACTION OR ANY OTHER PROGRAM LEADING TO
EARLY DESEGREGATION OF SCHOOLS THAT MAY BE SUGGESTED BY THE NATIONAL
AND STATE CONFERENCE OFFICERS." 

IN SHORT, AS THESE AND OTHER MATERIALS IN THE RECORD SHOW, THE FORM
OF PLEADING, THE TYPE OF RELIEF TO BE REQUESTED, AND THE PROPER TIMING
OF SUITS HAVE TO A CONSIDERABLE EXTENT, IF NOT ENTIRELY, BEEN
DETERMINED BY THE CONFERENCE IN COORDINATION WITH THE NATIONAL OFFICE. 
THIRD, CONTRARY TO THE CONCLUSION OF THE FEDERAL DISTRICT COURT IN THE
ORIGINAL FEDERAL PROCEEDING, NAACP V. PATTY, 159 F. SUPP. 503, 508-509,
THE PRESENT RECORD ESTABLISHES THAT THE PETITIONER DOES A GREAT DEAL
MORE THAN TO ADVOCATE LITIGATION AND TO WAIT FOR PROSPECTIVE LITIGANTS
TO COME FORWARD.  IN SEVERAL INSTANCES, ESPECIALLY IN LITIGATION
TOUCHING RACIAL DISCRIMINATION IN PUBLIC SCHOOLS, SPECIFIC DIRECTIONS
WERE GIVEN AS TO THE TYPES OF PROSPECTIVE PLAINTIFFS TO BE SOUGHT, AND
STAFF LAWYERS BROUGHT BLANK FORMS TO MEETINGS FOR THE PURPOSE OF
OBTAINING SIGNATURES AUTHORIZING THE PROSECUTION OF LITIGATION IN THE
NAME OF THE SIGNER.    FOURTH, THERE IS SUBSTANTIAL EVIDENCE INDICATING
THAT THE NORMAL INCIDENTS OF THE ATTORNEY-CLIENT RELATIONSHIP WERE
OFTEN ABSENT IN LITIGATION HANDLED BY STAFF LAWYERS AND FINANCED BY
PETITIONER.  FORMS SIGNED BY PROSPECTIVE LITIGANTS HAVE ON OCCASION NOT
CONTAINED THE NAME OF THE ATTORNEY AUTHORIZED TO ACT.  IN MANY CASES,
WHETHER OR NOT THE FORM CONTAINED SPECIFIC AUTHORIZATION TO THAT
EFFECT, ADDITIONAL COUNSEL HAVE BEEN BROUGHT INTO THE ACTION BY STAFF
COUNSEL.  THERE WERE SEVERAL LITIGANTS WHO TESTIFIED THAT AT NO TIME
DID THEY HAVE ANY PERSONAL DEALINGS WITH THE LAWYERS HANDLING THEIR
CASES NOR WERE THEY AWARE UNTIL LONG AFTER THE EVENT THAT SUITS HAD
BEEN FILED IN THEIR NAMES.  THIS IS NOT TO SUGGEST THAT THE PETITIONER
HAS BEEN SHOWN TO HAVE SOUGHT PLAINTIFFS UNDER FALSE PRETENSES OR BY
INACCURATE STATEMENTS.  BUT THERE IS NO BASIS FOR CONCLUDING THAT THESE
ISOLATED INCIDENTS, OR THAT PETITIONER'S METHODS OF OPERATION HAVE BEEN
SUCH AS TO RENDER THESE HAPPENINGS OUT OF THE ORDINARY. 

ON THESE FACTUAL PREMISES, AMPLY SUPPORTED BY THE EVIDENCE, THE
VIRGINIA SUPREME COURT OF APPEALS HELD THAT PETITIONER AND THOSE
ASSOCIATED WITH IT: 

"SOLICIT PROSPECTIVE LITIGANTS TO AUTHORIZE THE FILING OF SUITS BY
NAACP AND FUND (EDUCATIONAL DEFENSE FUND) LAWYERS, WHO ARE PAID BY THE
CONFERENCE AND CONTROLLED BY NAACP POLICIES  ...  ."  (202 VA., AT 159;
116 S.E.2D, AT 68-69). 

AND CONCLUDED THAT THIS CONDUCT VIOLATED CHAPTER 33 AS WELL AS CANONS
35 AND 47 OF THE  CANONS OF PROFESSIONAL ETHICS OF THE AMERICAN BAR
ASSOCIATION, WHICH HAD BEEN ADOPTED BY THE VIRGINIA COURTS MORE THAN 20
YEARS AGO. 

AT THE SAME TIME THE VIRGINIA COURT DEMONSTRATED A RESPONSIBLE
AWARENESS OF TWO IMPORTANT LIMITATIONS ON THE STATE'S POWER TO REGULATE
SUCH CONDUCT.  THE FIRST OF THESE IS THE LONG-STANDING RECOGNITION,
INCORPORATED IN THE CANONS, OF THE DIFFERENT TREATMENT TO BE ACCORDED
TO THOSE AIDING THE INDIGENT IN PROSECUTING OR DEFENDING AGAINST LEGAL
PROCEEDINGS.  THE SECOND, WHICH COUPLED WITH THE FIRST LED THE COURT TO
STRIKE DOWN CHAPTER 36 (ANTE, P. 418), IS THE CONSTITUTIONAL RIGHT OF
ANY PERSON TO EXPRESS HIS VIEWS, TO DISSEMINATE THOSE VIEWS TO OTHERS,
AND TO ADVOCATE ACTION DESIGNED TO ACHIEVE LAWFUL OBJECTIVES, WHICH IN
THE PRESENT CASE ARE ALSO CONSTITUTIONALLY DUE.  MINDFUL OF THESE
LIMITATIONS, THE STATE COURT CONSTRUED CHAPTER 33 NOT TO PROHIBIT
PETITIONER AND THOSE ASSOCIATED WITH IT FROM ACQUAINTING COLORED
PERSONS WITH WHAT IT BELIEVES TO BE THEIR RIGHTS, OR FROM ADVISING THEM
TO ASSERT THOSE RIGHTS IN LEGAL PROCEEDINGS, BUT ONLY FROM "SOLICITING
LEGAL BUSINESS FOR THEIR ATTORNEYS OR ANY PARTICULAR ATTORNEYS." 
FURTHER, THE COURT DETERMINED THAT CHAPTER 33 DID NOT PRECLUDE
PETITIONER FROM CONTRIBUTING MONEY TO PERSONS TO ASSIST THEM IN
PROSECUTING SUITS, IF THE SUITS "HAVE NOT BEEN SOLICITED BY THE
APPELLANTS (THE NAACP AND DEFENSE FUND) OR THOSE ASSOCIATED WITH THEM,
AND CHANNELED BY THEM TO THEIR ATTORNEYS OR ANY OTHER ATTORNEYS." 

IN MY OPINION THE LITIGATION PROGRAM OF THE NAACP, AS SHOWN BY THIS
RECORD, FALLS WITHIN AN AREA OF ACTIVITY WHICH A STATE MAY
CONSTITUTIONALLY REGULATE.  (WHETHER IT WAS WISE FOR VIRGINIA TO
EXERCISE THAT POWER IN THIS INSTANCE IS NOT, OF COURSE, FOR US TO
SAY.)  THE COURT'S CONTRARY CONCLUSION RESTS UPON THREE BASIC LINES OF
REASONING:  (1) THAT IN THE CONTEXT OF THE RACIAL PROBLEM THE NAACP'S
LITIGATING ACTIVITIES ARE A FORM OF POLITICAL EXPRESSION WITHIN THE
PROTECTION OF THE FIRST AMENDMENT, AS EXTENDED TO THE STATES BY THE
FOURTEENTH; (2) THAT NO SUFFICIENTLY COMPELLING SUBORDINATING STATE
INTEREST HAS BEEN SHOWN TO JUSTIFY VIRGINIA'S PARTICULAR REGULATION OF
THESE ACTIVITIES; AND (3) THAT IN ANY EVENT CHAPTER 33 MUST FALL
BECAUSE OF VAGUENESS, IN THAT AS CONSTRUED BY THE STATE COURT THE LINE
BETWEEN THE PERMISSIBLE AND IMPERMISSIBLE UNDER THE STATUTE IS SO
UNCERTAIN AS POTENTIALLY TO WORK A STIFLING OF CONSTITUTIONALLY
PROTECTED RIGHTS.  EACH OF THESE PROPOSITIONS WILL BE CONSIDERED IN
TURN. 

                                        II. 

FREEDOM OF EXPRESSION EMBRACES MORE THAN THE RIGHT OF AN INDIVIDUAL
TO SPEAK HIS MIND.  IT INCLUDES ALSO HIS RIGHT TO ADVOCATE AND HIS
RIGHT TO JOIN WITH HIS FELLOWS IN AN EFFORT TO MAKE THAT ADVOCACY
EFFECTIVE.  THOMAS V. COLLINS, 323 U.S. 516; NAACP V. ALABAMA, 357 U.S.
449; BATES V. LITTLE ROCK, 361 U.S. 516.  AND JUST AS IT INCLUDES THE
RIGHT JOINTLY TO PETITION THE LEGISLATURE FOR REDRESS OF GRIEVANCES,
SEE EASTERN R. PRESIDENTS CONFERENCE V. NOERR MOTOR FREIGHT, INC., 365
U.S. 127, 137-138, SO IT MUST INCLUDE THE RIGHT TO JOIN TOGETHER FOR
PURPOSES OF OBTAINING JUDICIAL REDRESS.  WE HAVE PASSED THE POINT WHERE
LITIGATION IS REGARDED AS AN EVIL THAT MUST BE AVOIDED IF SOME
ACCOMMODATION SHORT OF A LAWSUIT CAN POSSIBLY BE WORKED OUT. 
LITIGATION IS OFTEN THE DESIRABLE AND ORDERLY WAY OF RESOLVING DISPUTES
OF BROAD PUBLIC SIGNIFICANCE, AND OF OBTAINING VINDICATION OF
FUNDAMENTAL RIGHTS.  THIS IS PARTICULARLY SO IN THE SENSITIVE AREA OF
RACIAL RELATIONSHIPS. 

BUT TO DECLARE THAT LITIGATION IS A FORM OF CONDUCT THAT MAY BE
ASSOCIATED WITH POLITICAL EXPRESSION DOES NOT RESOLVE THIS CASE. 
NEITHER THE FIRST AMENDMENT NOR THE FOURTEENTH CONSTITUTES AN ABSOLUTE
BAR TO GOVERNMENT REGULATION IN THE FIELDS OF FREE EXPRESSION AND
ASSOCIATION.  THIS COURT HAS REPEATEDLY HELD THAT CERTAIN FORMS OF
SPEECH ARE OUTSIDE THE SCOPE OF THE PROTECTION OF THOSE AMENDMENTS, AND
THAT, IN ADDITION, "GENERAL REGULATORY STATUTES, NOT INTENDED TO
CONTROL THE CONTENT OF SPEECH BUT INCIDENTALLY LIMITING ITS UNFETTERED
EXERCISE," ARE PERMISSIBLE "WHEN THEY HAVE BEEN FOUND JUSTIFIED BY
SUBORDINATING VALID GOVERNMENTAL INTERESTS."  (FN1)  THE PROBLEM IN
EACH SUCH CASE IS TO WEIGH THE LEGITIMATE INTEREST OF THE STATE AGAINST
THE EFFECT OF THE REGULATION ON INDIVIDUAL RIGHTS. 

AN ANALOGY MAY BE DRAWN BETWEEN THE PRESENT CASE AND THE RIGHTS OF
WORKINGMEN IN LABOR DISPUTES.  AT THE HEART OF THESE RIGHTS ARE THOSE
OF A LABORER OR A LABOR REPRESENTATIVE TO SPEAK:  TO INFORM THE PUBLIC
OF HIS DISPUTES AND TO URGE HIS FELLOW WORKERS TO JOIN TOGETHER FOR
MUTUAL AID AND PROTECTION.  SO IMPORTANT ARE THESE PARTICULAR RIGHTS
THAT ABSENT A CLEAR AND PRESENT DANGER OF THE GRAVEST EVIL, THE STATE
NOT ONLY IS WITHOUT POWER TO IMPOSE A BLANKET PROHIBITION ON THEIR
EXERCISE, THORNHILL V. ALABAMA, 310 U.S. 88, BUT ALSO MAY NOT PLACE ANY
SIGNIFICANT OBSTACLE IN THEIR PATH, THOMAS V. COLLINS, 323 U.S. 516. 

BUT AS WE MOVE AWAY FROM SPEECH ALONE AND INTO THE SPHERE OF CONDUCT
EVEN CONDUCT ASSOCIATED WITH SPEECH OR RESULTING FROM IT - THE AREA OF
LEGITIMATE GOVERNMENTAL INTEREST EXPANDS.  A REGULATION NOT DIRECTLY
SUPPRESSING SPEECH OR PEACEABLE ASSEMBLY, BUT HAVING SOME IMPACT ON THE
FORM OR MANNER OF THEIR EXERCISE WILL BE SUSTAINED IF THE REGULATION
HAS A REASONABLE RELATIONSHIP TO A PROPER GOVERNMENTAL OBJECTIVE AND
DOES NOT UNDULY INTEREFERE WITH SUCH INDIVIDUAL RIGHTS.  THUS, ALTHOUGH
THE STATE MAY NOT PROHIBIT ALL INFORMATIONAL PICKETING, IT MAY PREVENT
MASS PICKETING, ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740,
AND PICKETING FOR AN UNLAWFUL OBJECTIVE, GIBONEY V. EMPIRE STORAGE &
ICE CO., 336 U.S. 490.  ALTHOUGH IT MAY NOT PREVENT ADVOCACY OF UNION
MEMBERSHIP, IT CAN TO SOME DEGREE INQUIRE INTO AND DEFINE THE
QUALIFICATIONS OF THOSE WHO SOLICIT FUNDS FROM PROSPECTIVE MEMBERS OR
WHO HOLD OTHER POSITIONS OF RESPONSIBILITY.  (FN2)  A LEGISLATURE MAY
NOT WHOLLY ELIMINATE THE RIGHT OF COLLECTIVE ACTION BY WORKINGMEN,
(FN3) BUT IT MAY TO A SIGNIFICANT EXTENT DICTATE THE FORM THEIR
ORGANIZATION SHALL TAKE (FN4) AND MAY LIMIT THE DEMANDS THAT THE
ORGANIZATION MAY MAKE ON EMPLOYERS AND OTHERS, SEE, E.G., INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS V. LABOR BOARD, 341 U.S. 694, 705. 

TURNING TO THE PRESENT CASE, I THINK IT EVIDENT THAT THE BASIC RIGHTS
IN ISSUE ARE THOSE OF THE PETITIONER'S MEMBERS TO ASSOCIATE, TO
DISCUSS, AND TO ADVOCATE.  ABSENT THE GRAVEST DANGER TO THE COMMUNITY,
THESE RIGHTS MUST REMAIN FREE FROM FRONTAL ATTACK OR SUPPRESSION, AND
THE STATE COURT HAS RECOGNIZED THIS IN STRIKING DOWN CHAPTER 36 AND IN
CAREFULLY LIMITING THE IMPACT OF CHAPTER 33.  BUT LITIGATION, WHETHER
OR NOT ASSOCIATED WITH THE ATTEMPT TO VINDICATE CONSTITUTIONAL RIGHTS,
IS CONDUCT; IT IS SPEECH PLUS.  ALTHOUGH THE STATE SURELY MAY NOT
BROADLY PROHIBIT INDIVIDUALS WITH A COMMON INTEREST FROM JOINING
TOGETHER TO PETITION A COURT FOR REDRESS OF THEIR GRIEVANCES, IT IS
EQUALLY CERTAIN THAT THE STATE MAY IMPOSE REASONABLE REGULATIONS
LIMITING THE PERMISSIBLE FORM OF LITIGATION AND THE MANNER OF LEGAL
REPRESENTATION WITHIN ITS BORDERS.  THUS THE STATE MAY, WITHOUT
VIOLATING PROTECTED RIGHTS, RESTRICT THOSE UNDERTAKING TO REPRESENT
OTHERS IN LEGAL PROCEEDINGS TO PROPERLY QUALIFIED PRACTITIONERS.  AND
IT MAY DETERMINE THAT A CORPORATION OR ASSOCIATION DOES NOT ITSELF HAVE
STANDING TO LITIGATE THE INTERESTS OF ITS SHAREHOLDERS OR MEMBERS -
THAT ONLY INDIVIDUALS WITH A DIRECT INTEREST OF THEIR OWN MAY JOIN TO
PRESS THEIR CLAIMS IN ITS COURTS.  BOTH KINDS OF REGULATION ARE
UNDENIABLY MATTERS OF LEGITIMATE CONCERN TO THE STATE AND THEIR
POSSIBLE IMPACT ON THE RIGHTS OF EXPRESSION AND ASSOCIATION IS FAR TOO
REMOTE TO CAUSE ANY DOUBT AS TO THEIR VALIDITY. 

SO HERE, THE QUESTION IS WHETHER THE PARTICULAR REGULATION OF CONDUCT
CONCERNING LITIGATION HAS A REASONABLE RELATION TO THE FURTHERANCE OF A
PROPER STATE INTEREST, AND WHETHER THAT INTEREST OUTWEIGHS ANY
FORESEEABLE HARM TO THE FURTHERANCE OF PROTECTED FREEDOMS. 

                          III. 

THE INTEREST WHICH VIRGINIA HAS HERE ASSERTED IS THAT OF MAINTAINING
HIGH PROFESSIONAL STANDARDS AMONG THOSE WHO PRACTICE LAW WITHIN ITS
BORDERS.  THIS COURT HAS CONSISTENTLY RECOGNIZED THE BROAD RANGE OF
JUDGMENTS THAT A STATE MAY PROPERLY MAKE IN REGULATING ANY PROFESSION. 
SEE, E.G., DENT V. WEST VIRGINIA, 129 U.S. 114; SEMLER V. OREGON STATE
BOARD OF DENTAL EXAMINERS, 294 U.S. 608; WILLIAMSON V. LEE OPTICAL CO.,
348 U.S. 483.  BUT THE REGULATION OF PROFESSIONAL STANDARDS FOR MEMBERS
OF THE BAR COMES TO US WITH EVEN DEEPER ROOTS IN HISTORY AND POLICY,
SINCE COURTS FOR CENTURIES HAVE POSSESSED DISCIPLINARY POWERS INCIDENT
TO THE ADMINISTRATION OF JUSTICE.  SEE COHEN V. HURLEY, 366 U.S. 117,
123-124; KONIGSBERG V. STATE BAR, 366 U.S. 36; MARTIN V. WALTON, 368
U.S. 25. 

THE REGULATION BEFORE US HAS ITS ORIGINS IN THE LONG-STANDING COMMON
LAW PROHIBITIONS OF CHAMPERTY, BARRATRY, AND MAINTENANCE, THE CLOSELY
RELATED PROHIBITIONS IN THE CANONS OF ETHICS AGAINST SOLICITATION AND
INTERVENTION BY A LAY INTERMEDIARY, AND STATUTORY PROVISIONS FORBIDDING
THE UNAUTHORIZED PRACTICE OF LAW.  (FN5)  THE COURT RECOGNIZES THIS
FORMIDABLE HISTORY, BUT PUTS IT ASIDE IN THE PRESENT CASE ON THE
GROUNDS THAT THERE IS HERE NO ELEMENT OF MALICE OR OF PECUNIARY GAIN,
THAT THE INTERESTS OF THE NAACP ARE NOT TO BE REGARDED AS SUBSTANTIALLY
DIFFERENT FROM THOSE OF ITS MEMBERS, AND THAT WE ARE SAID TO BE DEALING
HERE WITH A MATTER THAT TRANSCENDS MERE LEGAL ETHICS - THE SECURING OF
FEDERALLY GUARANTEED RIGHTS.  BUT THESE DISTINCTIONS ARE TOO FACILE. 
THEY DO NOT ACCOUNT FOR THE FULL SCOPE OF THE STATE'S LEGITIMATE
INTEREST IN REGULATING PROFESSIONAL CONDUCT.  FOR ALTHOUGH THESE
PROFESSIONAL STANDARDS MAY HAVE BEEN BORN IN A DESIRE TO CURB MALICE
AND SELF-AGGRANDIZEMENT BY THOSE WHO WOULD USE CLIENTS AND THE COURTS
FOR THEIR OWN PECUNIARY ENDS, THEY HAVE ACQUIRED A FAR BROADER
SIGNIFICANCE DURING THEIR LONG DEVELOPMENT. 

FIRST, WITH REGARD TO THE CLAIMED ABSENCE OF THE PECUNIARY ELEMENT,
IT CANNOT WELL BE SUGGESTED THAT THE ATTORNEYS HERE ARE DONATING THEIR
SERVICES, SINCE THEY ARE IN FACT COMPENSATED FOR THEIR WORK.  NOR CAN
IT TENABLY BE ARGUED THAT PETITIONER'S LITIGATING ACTIVITIES FALL INTO
THE ACCEPTED CATEGORY OF AID TO INDIGENT LITIGANTS.  (FN6)  THE
REFERENCE IS PRESUMABLY TO THE FACT THAT PETITIONER ITSELF IS A
NONPROFIT ORGANIZATION NOT MOTIVATED BY DESIRE FOR FINANCIAL GAIN BUT
BY PUBLIC INTEREST AND TO THE FACT THAT NO MONETARY STAKES ARE INVOLVED
IN THE LITIGATION. 

BUT A STATE'S FELT NEED FOR REGULATION OF PROFESSIONAL CONDUCT MAY
REASONABLY EXTEND BEYOND MERE "AMBULANCE CHASING."  IN PEOPLE EX REL.
COURTNEY V. ASSOCIATION OF REAL ESTATE TAX-PAYERS, 354 ILL. 102, 187
N.E. 823, A NONPROFIT CORPORATION WAS HELD IN CONTEMPT FOR ENGAGING IN
THE UNAUTHORIZED PRACTICE OF LAW.  THE ASSOCIATION WAS FORMED BY
CITIZENS DESIRING TO MOUNT AN ATTACK ON THE CONSTITUTIONALITY OF
CERTAIN TAX ROLLS.  MEMBERSHIP WAS SOLICITED BY THE CIRCULATION OF
BLANK FORMS AUTHORIZING EMPLOYMENT OF COUNSEL ON THE APPLICANT'S BEHALF
AND ASKING THAT PROPERTY BE LISTED FOR LITIGATION.  THE ATTORNEYS WERE
SELECTED, PAID, AND CONTROLLED BY THE CORPORATION, WHICH MADE THEIR
SERVICES AVAILABLE TO THE TAXPAYER MEMBERS AT NO COST.  (FN7) 

SIMILARLY, SEVERAL DECISIONS HAVE CONDEMNED THE PROVISION OF COUNSEL
FOR THEIR MEMBERS BY NONPROFIT AUTOMOBILE CLUBS, EVEN IN INSTANCES
INVOLVING CHALLENGES TO THE VALIDITY OF A STATUTE OR ORDINANCE.  IN RE
MACLUB OF AMERICA, INC., 295 MASS. 45, 3 N.E.2D 272; (FN8) PEOPLE EX
REL.  CHICAGO BAR ASSN. V. CHICAGO MOTOR CLUB, 362 ILL. 50, 199 N.E. 1;
SEE OPINION 8, OPINIONS OF THE COMMITTEE ON PROFESSIONAL ETHICS AND
GRIEVANCES, AMERICAN BAR ASSN.    OF PARTICULAR RELEVANCE HERE IS A
SERIES OF NATIONWIDE ADJUDICATIONS CULMINATING IN 1958 IN IN RE
BROTHERHOOD OF RAILROAD TRAINMEN, 13 ILL. 2D 391, 150 N.E.2D 163.  THAT
WAS A PROCEEDING, REMARKABLY SIMILAR TO THE PRESENT ONE, FOR A
DECLARATORY JUDGMENT THAT THE ACTIVITIES OF THE BROTHERHOOD IN
ASSISTING WITH THE PROSECUTION OF ITS MEMBERS' PERSONAL INJURY CLAIMS
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT (FN9) WERE NOT INCONSISTENT
WITH A STATE LAW FORBIDDING LAY SOLICITATION OF LEGAL BUSINESS.  THE
COURT FOUND THAT EACH LODGE OF THE BROTHERHOOD APPOINTED A MEMBER TO
FILE ACCIDENT REPORTS WITH THE CENTRAL OFFICE, AND THESE REPORTS WERE
SENT BY THE CENTRAL OFFICE TO A REGIONAL INVESTIGATOR, WHO, EQUIPPED
WITH A CONTRACT FORM FOR THE PURPOSE, WOULD URGE THE INJURED MEMBER TO
CONSULT AND EMPLOY ONE OF THE 16 REGIONAL ATTORNEYS RETAINED BY THE
BROTHERHOOD.  THE REGIONAL COUNSEL OFFERED HIS SERVICES TO THE INJURED
PERSON ON THE BASIS OF A CONTINGENT FEE, THE AMOUNT OF WHICH WAS FIXED
BY THE BROTHERHOOD.  THE COUNSEL THEMSELVES BORE THE COSTS OF
INVESTIGATION AND SUIT AND OF OPERATING THE UNION'S LEGAL AID
DEPARTMENT. 

THE UNION ARGUED THAT IT WAS NOT MOTIVATED BY ANY DESIRE FOR PROFIT;
THAT IT HAD AN INTEREST COMMENSURATE WITH THAT OF ITS MEMBERS IN
ENFORCEMENT OF THE FEDERAL STATUTE; AND THAT THE ADVANTAGE TAKEN OF
INJURED PARTIES BY UNSCRUPULOUS CLAIMS ADJUSTORS MADE IT ESSENTIAL TO
FURNISH ECONOMICAL RECOURSE TO DEPENDABLE LEGAL ASSISTANCE.  THE COURT
RULED AGAINST THE UNION ON EACH OF THESE POINTS.   IT PERMITTED THE
ORGANIZATION TO MAINTAIN AN INVESTIGATIVE STAFF, TO ADVISE ITS MEMBERS
REGARDING THEIR LEGAL RIGHTS AND TO RECOMMEND PARTICULAR ATTORNEYS, BUT
IT REQUIRED THE UNION TO STOP FIXING FEES, TO SEVER ALL FINANCIAL
CONNECTIONS WITH COUNSEL, AND TO CEASE THE DISTRIBUTION OF CONTRACT
FORMS. 

THE PRACTICES OF THE BROTHERHOOD, SIMILAR IN SO MANY RESPECTS TO
THOSE ENGAGED IN BY THE PETITIONER HERE, HAVE BEEN CONDEMNED BY EVERY
STATE COURT WHICH HAS CONSIDERED THEM.  PETITION OF COMMITTEE ON RULE
28 OF THE CLEVELAND BAR ASSN., 15 OHIO L. ABS.  106; IN RE O'NEILL, 5
F. SUPP. 465 (D.C.E.D.N.Y.); HILDEBRAND V. STATE BAR, 36 CAL. 2D 504,
225 P.2D 508; DOUGHTY V. GRILLS, 37 TENN. APP. 63, 260 S.W.2D 379; AND
SEE ATCHISON, T.&S.F.R. CO. V. JACKSON, 235 F.2D 390, 393 (C.A. 10TH
CIR.).  AND FOR SIMILAR OPINIONS ON RELATED QUESTIONS BY BAR
ASSOCIATION COMMITTEES, SEE OPINION A. OPINIONS OF THE COMMITTEE ON
UNAUTHORIZED PRACTICE OF THE LAW, AMERICAN BAR ASSN., 36 A.B.A.J. 677;
OPINION 773, COMMITTEE ON PROFESSIONAL ETHICS, ASSN. OF THE BAR OF THE
CITY OF NEW YORK. 

UNDERLYING THIS IMPRESSIVE ARRAY OF RELEVANT PRECEDENT IS THE WIDELY
SHARED CONVICTION THAT AVOIDANCE OF IMPROPER PECUNIARY GAIN IS NOT THE
ONLY RELEVANT FACTOR IN DETERMINING STANDARDS OF PROFESSIONAL CONDUCT. 
RUNNING PERHAPS EVEN DEEPER IS THE DESIRE OF THE PROFESSION, OF COURTS,
AND OF LEGISLATURES TO PREVENT ANY INTERFERENCE WITH THE UNIQUELY
PERSONAL RELATIONSHIP BETWEEN LAWYER AND CLIENT AND TO MAINTAIN
UNTRAMMELED BY OUTSIDE INFLUENCES THE RESPONSIBILITY WHICH THE LAWYER
OWES TO THE COURTS HE SERVES. 

WHEN AN ATTORNEY IS EMPLOYED BY AN ASSOCIATION OR CORPORATION TO
REPRESENT INDIVIDUAL LITIGANTS, TWO PROBLEMS ARISE, WHETHER OR NOT THE
ASSOCIATION IS ORGANIZED FOR PROFIT AND NO MATTER HOW UNIMPEACHABLE ITS
MOTIVES.  THE LAWYER BECOMES SUBJECT TO THE CONTROL OF A BODY THAT IS
NOT ITSELF A LITIGANT AND THAT, UNLIKE THE LAWYERS IT EMPLOYES, IS NOT
SUBJECT TO STRICT PROFESSIONAL DISCIPLINE AS AN OFFICER OF THE COURT. 
IN ADDITION, THE LAWYER NECESSARILY FINDS HIMSELF WITH A DIVIDED
ALLEGIANCE - TO HIS EMPLOYER AND TO HIS CLIENT - WHICH MAY PREVENT FULL
COMPLIANCE WITH HIS BASIC PROFESSIONAL OBLIGATIONS.  THE MATTER WAS
WELL STATED, IN A DIFFERENT BUT RELATED CONTEXT, BY THE NEW YORK COURT
OF APPEALS IN IN RE CO-OPERATIVE LAW CO., 198 N.Y.  479, 483-484, 92
N.E. 15, 16: 

"THE RELATION OF ATTORNEY AND CLIENT IS THAT OF MASTER AND SERVANT IN
A LIMITED AND DIGNIFIED SENSE, AND IT INVOLVES THE HIGHEST TRUST AND
CONFIDENCE.  IT CANNOT BE DELEGATED WITHOUT CONSENT AND IT CANNOT EXIST
BETWEEN AN ATTORNEY EMPLOYED BY A CORPORATION TO PRACTICE LAW FOR IT,
AND A CLIENT OF THE CORPORATION, FOR HE WOULD BE SUBJECT TO THE
DIRECTIONS OF THE CORPORATION AND NOT TO THE DIRECTIONS OF THE
CLIENT." 

THERE HAS, TO BE SURE, BEEN PROFESSIONAL CRITICISM OF CERTAIN
APPLICATIONS OF THESE POLICIES.  (FN10)  BUT THE CONTINUED VITALITY OF
THE PRINCIPLES INVOLVED IS BEYOND DISPUTE, (FN11) AND AT THIS WRITING
IT IS HAZARDOUS AT BEST TO PREDICT THE DIRECTION OF THE FUTURE.  FOR
US, HOWEVER, ANY SUCH DEBATE IS WITHOUT RELEVANCE, SINCE IT RAISES
QUESTIONS OF SOCIAL POLICY WHICH HAVE NOT BEEN DELEGATED TO THIS COURT
FOR DECISION.  OUR RESPONSIBILITY IS SIMPLY TO DETERMINE THE EXTENT OF
THE STATE'S LEGITIMATE INTEREST AND TO DECIDE WHETHER THE COURSE
ADOPTED BEARS A SUFFICIENT RELATION TO THAT INTEREST TO FALL WITHIN THE
BOUNDS SET BY THE CONSTITUTION. 

SECOND, IT IS CLAIMED THAT THE INTERESTS OF PETITIONER AND ITS
MEMBERS ARE SUFFICIENTLY IDENTICAL TO ELIMINATE ANY "SERIOUS DANGER" OF
"PROFESSIONALLY REPREHENSIBLE CONFLICTS OF INTEREST."  ANTE, P. 443. 
SUPPORT FOR THIS CLAIM IS SOUGHT IN OUR PROCEDURAL HOLDING IN NAACP V.
ALABAMA, 357 U.S. 449, 458-459.  BUT FROM RECOGNIZING, AS IN THAT CASE,
THAT THE NAACP HAS STANDING TO ASSERT THE RIGHTS OF ITS MEMBERS WHEN IT
IS A REAL PARTY IN INTEREST, IT IS PLAINLY TOO LARGE A JUMP TO CONCLUDE
THAT WHENEVER INDIVIDUALS ARE ENGAGED IN LITIGATION INVOLVING CLAIMS
THAT THE ORGANIZATION PROMOTES, THERE CANNOT BE ANY SIGNIFICANT
DIFFERENCE BETWEEN THE INTEREST OF THE INDIVIDUAL AND THOSE OF THE
GROUP. 

THE NAACP MAY BE NO MORE THAN THE SUM OF THE EFFORTS AND VIEWS
INFUSED IN IT BY ITS MEMBERS; BUT THE TOTALITY OF THE SEPARATE
INTERESTS OF THE MEMBERS AND OTHERS WHOSE CAUSES THE PETITIONER
CHAMPIONS, EVEN IN THE FIELD OF RACE RELATIONS, MAY FAR EXCEED IN SCOPE
AND VARIETY THAT BODY'S VIEWS OF POLICY, AS EMBODIED IN LITIGATING
STRATEGY AND TACTICS.  THUS IT MAY BE IN THE INTEREST OF THE
ASSOCIATION IN EVERY CASE TO MAKE A FRONTAL ATTACK ON SEGREGATION, TO
PRESS FOR AN IMMEDIATE BREAKING DOWN OF RACIAL BARRIERS, AND TO
SACRIFICE MINOR POINTS THAT MAY WIN A GIVEN CASE FOR THE MAJOR POINTS
THAT MAY WIN OTHER CASES TOO.  BUT IN A PARTICULAR LITIGATION, IT IS
NOT IMPOSSIBLE THAT AFTER AUTHORIZING ACTION IN HIS BEHALF, A NEGRO
PARENT, CONCERNED THAT A CONTINUED FRONTAL ATTACK COULD RESULT IN
SCHOOLS CLOSED FOR YEARS, MIGHT PREFER TO WAIT WITH HIS FELLOWS A
LONGER TIME FOR GOOD-FAITH EFFORTS BY THE LOCAL SCHOOL BOARD THAN IS
PERMITTED BY THE CENTRALLY DETERMINED POLICY OF THE NAACP.  OR HE MIGHT
SEE A GREATER PROSPECT OF SUCCESS THROUGH DISCUSSIONS WITH LOCAL SCHOOL
AUTHORITIES THAN THROUGH THE LITIGATION DEEMED NECESSARY BY THE
ASSOCIATION.  THE PARENT, OF COURSE, IS FREE TO WITHDRAW HIS
AUTHORIZATION, BUT IS HIS LAWYER, RETAINED AND PAID BY PETITIONER AND
SUBJECT TO ITS DIRECTIONS ON MATTERS OF POLICY, ABLE TO ADVISE THE
PARENT WITH THAT UNDIVIDED ALLEGIANCE THAT IS THE HALLMARK OF THE
ATTORNEY-CLIENT RELATION?  I AM AFRAID NOT. 

INDEED, THE POTENTIAL CONFLICT IN THE PRESENT SITUATION IS PERHAPS
GREATER THAN THOSE IN THE UNION, AUTOMOBILE CLUB, AND SOME OF THE OTHER
CASES DISCUSSED ABOVE, PP. 457-460.  FOR HERE, THE INTERESTS OF THE
NAACP GO WELL BEYOND THE PROVIDING OF COMPETENT COUNSEL FOR THE
PROSECUTION OR DEFENSE OF INDIVIDUAL CLAIMS; THEY EMBRACE BROADLY FIXED
SUBSTANTIVE POLICIES THAT MAY WELL OFTEN DEVIATE FROM THE IMMEDIATE, OR
EVEN LONG-RANGE, DESIRES OF THOSE WHO CHOOSE TO ACCEPT ITS OFFERS OF
LEGAL REPRESENTATIONS.  THIS SERVES TO UNDERSCORE THE CLOSE
INTERDEPENDENCE BETWEEN THE STATE'S CONDEMNATION OF SOLICITATION AND
ITS PROHIBITION OF THE UNAUTHORIZED PRACTICE OF LAW BY A LAY
ORGANIZATION. 

THIRD, IT IS SAID THAT THE PRACTICES INVOLVED HERE MUST STAND ON A
DIFFERENT FOOTING BECAUSE THE LITIGATION THAT PETITIONER SUPPORTS
CONCERNS THE VINDICATION OF CONSTITUTIONALLY GUARANTEED RIGHTS. 
(FN12) 

BUT SURELY STATE LAW IS STILL THE SOURCE OF BASIC REGULATION OF THE
LEGAL PROFESSION, WHETHER AN ATTORNEY IS PRESSING A FEDERAL OR A STATE
CLAIM WITHIN ITS BORDERS.  SEE IN RE BROTHERHOOD OF RAILROAD TRAINMEN,
SUPRA.  THE TRUE QUESTION IS WHETHER THE STATE HAS TAKEN ACTION WHICH
UNREASONABLY OBSTRUCTS THE ASSERTION OF FEDERAL RIGHTS.  HERE, IT
CANNOT BE SAID THAT THE UNDERLYING STATE POLICY IS INEVITABLY
INCONSISTENT WITH FEDERAL INTERESTS.  THE STATE HAS SOUGHT TO PROHIBIT
THE SOLICITATION AND SPONSORING OF LITIGATION BY THOSE WHO HAVE NO
STANDING TO INITIATE THAT LITIGATION THEMSELVES AND WHO ARE NOT SIMPLY
COMING TO THE ASSISTANCE OF INDIGENT LITIGANTS.  THUS THE STATE POLICY
IS NOT UNRELATED TO THE FEDERAL RULES OF STANDING - THE INSISTENCE THAT
FEDERAL COURT LITIGANTS BE CONFINED TO THOSE WHO CAN DEMONSTRATE A
PRESSING PERSONAL NEED FOR RELIEF.  SEE MCCABE V. ATCHISON, T.&S.F.R.
CO., 235 U.S. 151, 162; MASSACHUSETTS V. MELLON, 262 U.S. 447, 488; CF.
STARK V. WICKARD, 321 U.S. 288, 304-305, AND CASES CITED THEREIN.  THIS
IS A REQUIREMENT OF SUBSTANCE AS WELL AS FORM.  IT RECOGNIZES THAT,
ALTHOUGH LITIGATION IS NOT SOMETHING TO BE AVOIDED AT ALL COSTS, IT
SHOULD NOT BE RESORTED TO IN UNDUE HASTE, WITHOUT ANY EFFORT AT
EXTRAJUDICIAL RESOLUTION, AND THAT THOSE LACKING IMMEDIATE PRIVATE NEED
MAY MAKE UNNECESSARY BROAD ATTACKS BASED ON INADEQUATE RECORDS.  NOR IS
THE FEDERAL INTEREST IN IMPEDING PRECIPITATE RESORT TO LITIGATION
DIMINISHED WHEN THAT LITIGATION CONCERNS CONSTITUTIONAL ISSUES; IF
ANYTHING, IT IS INTENSIFIED.  UNITED PUBLIC WORKERS V. MITCHELL, 330
U.S. 75, 86-91. 

THERE REMAINS TO BE CONSIDERED ON THIS BRANCH OF THE ARGUMENT THE
QUESTION WHETHER THIS PARTICULAR EXERCISE OF STATE REGULATORY POWER
BEARS A SUFFICIENT RELATION TO THE ESTABLISHED AND SUBSTANTIAL INTEREST
OF THE STATE TO OVERCOME WHATEVER INDIRECT IMPACT THIS STATUTE MAY HAVE
ON RIGHTS OF FREE EXPRESSION AND ASSOCIATION. 

CHAPTER 33 AS CONSTRUED DOES NO MORE THAN PROHIBIT PETITIONER AND
THOSE ASSOCIATED WITH IT FROM SOLICITING LEGAL BUSINESS FOR ITS STAFF
ATTORNEYS OR, UNDER A FAIR READING OF THE STATE COURT'S OPINION AND
AMOUNTING TO THE SAME THING, FOR "OUTSIDE" ATTORNEYS WHO ARE SUBJECT TO
THE ASSOCIATION'S CONTROL IN THE HANDLING OF LITIGATION WHICH IT REFERS
TO THEM.  SEE PP. 466-468, INFRA.  SUCH PROHIBITIONS BEAR A STRONG AND
DIRECT RELATION TO THE AREA OF LEGITIMATE STATE CONCERN.  IN MATTERS OF
POLICY, INVOLVING THE FORM, TIMING, AND SUBSTANCE OF LITIGATION, SUCH
ATTORNEYS ARE SUBJECT TO THE DIRECTIONS OF PETITIONER AND NOT OF THOSE
NOMINALLY THEIR CLIENTS.  FURTHER, THE METHODS USED TO OBTAIN LITIGANTS
ARE NOT CONDUCIVE TO ENCOURAGING THE KIND OF ATTORNEY-CLIENT
RELATIONSHIPS WHICH THE STATE REASONABLY MAY DEMAND.  THERE INHERES IN
THESE ARRANGEMENTS, THEN, THE POTENTIALITIES OF DIVIDED ALLEGIANCE AND
DILUTED RESPONSIBILITY WHICH THE STATE MAY PROPERLY UNDERTAKE TO
PREVENT. 

THE IMPACT OF SUCH A PROHIBITION ON THE RIGHTS OF PETITIONER AND ITS
MEMBERS TO FREE EXPRESSION AND ASSOCIATION CANNOT WELL BE DEEMED SO
GREAT AS TO REQUIRE THAT IT BE STRUCK DOWN IN THE FACE OF THIS
SUBSTANTIAL STATE INTEREST.  THE IMPORTANT FUNCTION OF ORGANIZATIONS
LIKE PETITIONER IN VINDICATING CONSTITUTIONAL RIGHTS IS NOT OF COURSE
TO BE MINIMIZED, BUT THAT FUNCTION IS NOT, IN MY OPINION, SUBSTANTIALLY
IMPAIRED BY THIS STATUTE.  OF CARDINAL IMPORTANCE, THIS REGULATORY
ENACTMENT AS CONSTRUED DOES NOT IN ANY WAY SUPPRESS ASSEMBLY, OR
ADVOCACY OF LITIGATION IN GENERAL OR IN PARTICULAR.  MOREOVER, CONTRARY
TO THE MAJORITY'S SUGGESTION, IT DOES NOT, IN MY VIEW, PREVENT
PETITIONER FROM RECOMMENDING THE SERVICES OF ATTORNEYS WHO ARE NOT
SUBJECT TO ITS DIRECTIONS AND CONTROL.  SEE PP. 460-468, INFRA.  AND
SINCE PETITIONER MAY CONTRIBUTE TO THOSE WHO NEED ASSISTANCE, THE
PROHIBITION SHOULD NOT SIGNIFICANTLY DISCOURAGE ANYONE WITH SUFFICIENT
INTEREST FROM PRESSING HIS CLAIMS IN LITIGATION OR FROM JOINING WITH
OTHERS SIMILARLY SITUATED TO PRESS THOSE CLAIMS.  IT PREVENTS ONLY THE
SOLICITATION OF BUSINESS FOR ATTORNEYS SUBJECT TO PETITIONER'S CONTROL,
AND AS SO LIMITED, SHOULD BE SUSTAINED. 

                                             IV. 

THE COURT'S REMAINING LINE OF REASONING IS THAT CHAPTER 33 AS
CONSTRUED (HEREAFTER SOMETIMES SIMPLY "THE STATUTE") MUST BE STRUCK
DOWN ON THE SCORE OF VAGUENESS AND AMBIGUITY.  I THINK THAT THIS
"VAGUENESS" CONCEPT HAS NO PROPER PLACE IN THIS CASE AND ONLY SERVES TO
OBSCURE RATHER THAN ILLUMINATE THE TRUE QUESTIONS PRESENTED. 

THE COURT'S FINDING OF AMBIGUITY RESTS ON THE PREMISE THAT THE
STATUTE MAY PROHIBIT MERE RECOMMENDATION OF "ANY PARTICULAR ATTORNEY,"
WHETHER OR NOT A MEMBER OF THE NAACP'S LEGAL STAFF OR OTHERWISE SUBJECT
TO THE ASSOCIATION'S DIRECTION AND CONTROL.  PROCEEDING FROM THIS
PREMISE THE COURT ENDS BY INVALIDATING THE ENTIRE STATUTE ON THE BASIS
THAT THIS ALLEGED VAGUENESS TOO READILY LENDS ITSELF TO THE STIFLING OF
PROTECTED ACTIVITY. 

THE CARDINAL DIFFICULTY WITH THIS ARGUMENT IS THAT THERE SIMPLY IS NO
REAL UNCERTAINTY IN THE STATUTE, AS THE STATE COURT FOUND, 202 VA., AT
154, 116 S.E.2D, AT 65, OR IN THAT COURT'S CONSTRUCTION OF IT.  IT IS
TRUE THAT THE CONCEPT OF VAGUENESS HAS BEEN USED TO GIVE "BREATHING
SPACE" TO "FIRST AMENDMENT FREEDOMS," SEE AMSTERDAM, NOTE, THE VOID-FOR
VAGUENESS DOCTRINE IN THE SUPREME COURT, 109 U. OF PA. L. REV. 67, BUT
IT IS ALSO TRUE AS THAT SAME COMMENTATOR HAS WELL STATED, THAT
"VAGUENESS IS NOT AN EXTRANEOUS PLOY OR A JUDICIAL DEUS EX MACHINA." 
ID., AT 88.  THERE IS, IN OTHER WORDS, "AN ACTUAL VAGUENESS COMPONENT
IN THE VAGUENESS DECISIONS."  IBID.  AND THE TEST IS WHETHER THE LAW IN
QUESTION HAS ESTABLISHED STANDARDS OF GUILT SUFFICIENTLY ASCERTAINABLE
THAT MEN OF COMMON INTELLIGENCE NEED NOT GUESS AT ITS MEANING. 
CONNALLY V. GENERAL CONSTR.  CO., 269 U.S. 385; WINTERS V. NEW YORK,
333 U.S. 507.  LAWS THAT HAVE FAILED TO MEET THIS STANDARD ARE, ALMOST
WITHOUT EXCEPTION, THOSE WHICH TURN ON LANGUAGE CALLING FOR THE
EXERCISE OF SUBJECTIVE JUDGMENT, UNAIDED BY OBJECTIVE NORMS.  E.G.,
UNITED STATES V. L. COHEN GROCERY CO., 255 U.S. 81 ("UNREASONABLE"
CHARGES); WINTERS V. NEW YORK, SUPRA ("SO MASSED AS TO BECOME VEHICLES
FOR INCITING"); JOSEPH BURSTYN, INC., V. WILSON, 343 U.S. 495
("SACRILEGIOUS").  NO SUCH LANGUAGE IS TO BE FOUND HERE.    AMBIGUITY
IN THE PRESENT STATUTE CAN BE MADE TO APPEAR ONLY AT THE PRICE OF
STRAINED READING OF THE STATE COURT'S OPINION.  AS CONSTRUED, THE
STATUTE CONTAINS TWO TYPES OF PROHIBITION RELATING TO SOLICITATION. 
THE FIRST PROHIBITS SUCH GROUPS AS THE NAACP AND THE EDUCATIONAL
DEFENSE FUND, "THEIR OFFICERS, MEMBERS, AFFILIATES, VOLUNTARY WORKERS
AND ATTORNEYS" FROM SOLICITING LEGAL BUSINESS FOR "THEIR ATTORNEYS." 
(FN13)  AND THE STATE COURTS MADE IT CLEAR THAT "THEIR ATTORNEYS"
REFERRED TO "ATTORNEYS WHOM THEY (THE NAACP AND THE FUND) PAY, AND WHO
ARE SUBJECT TO THEIR DIRECTIONS."  202 VA., AT 164, 116 S.E.2D, AT 72. 
THIS IS THE PRACTICE WITH WHICH THE STATE COURT'S OPINION IS
PREDOMINANTLY CONCERNED AND WHICH GAVE RISE TO THE INTENSIVE
CONSIDERATION BY THAT COURT OF THE RELATIONS BETWEEN PETITIONER AND ITS
LEGAL STAFF.  SURELY THERE IS NO ELEMENT OF UNCERTAINTY INVOLVED IN
THIS PROHIBITION.  THE STATE COURT HAS MADE IT PLAIN THAT THE
SOLICITATION INVOLVED IS NOT THE ADVOCACY OF LITIGATION IN GENERAL OR
IN PARTICULAR BUT ONLY THAT INVOLVED IN THE HANDLING OF LITIGATION BY
PETITIONER'S OWN PAID AND CONTROLLED STAFF ATTORNEYS.  COMPARE THOMAS
V. COLLINS, 323 U.S. 516. 

THE SECOND PROHIBITION IN THE STATUTE IS THE SOLICITATION BY
PETITIONER OF LEGAL BUSINESS FOR "ANY PARTICULAR ATTORNEYS" OR THE
CHANNELING OF LITIGATION WHICH IT SUPPORTS TO "ANY OTHER ATTORNEYS,"
WHETHER OR NOT THEY ARE PETITIONER'S STAFF ATTORNEYS.  THIS LANGUAGE OF
THE STATE COURT, COUPLED PRIMARILY WITH THIS COURT'S OWN NOTION THAT
CHAPTER 33 IN DEFINING "AGENTS" HAS DEPARTED FROM COMMON-LAW
PRINCIPLES, LEAD THE MAJORITY TO CONCLUDE THAT THE STATUTE MAY HAVE
BEEN INTERPRETED AS PRECLUDING ORGANIZATIONS SUCH AS PETITIONER FROM
SIMPLY ADVISING PROSPECTIVE LITIGANTS TO ENGAGE FOR THEMSELVES
PARTICULAR ATTORNEYS, WHETHER MEMBERS OF THE ORGANIZATION'S LEGAL STAFF
OR NOT. 

SURELY SUCH AN IDEA CANNOT BE ENTERTAINED WITH RESPECT TO THE STATE
COURT'S DISCUSSION OF THE NAACP AND ITS STAFF ATTORNEYS.  THE RECORD IS
BARREN OF ALL EVIDENCE THAT ANY LITIGANT, IN THE TYPE OF LITIGATION
WITH WHICH THIS CASE IS CONCERNED, EVER ATTEMPTED TO RETAIN FOR HIS OWN
ACCOUNT ONE OF THOSE ATTORNEYS, AND INDEED STRONGLY INDICATES THAT SUCH
AN ARRANGEMENT WOULD NOT HAVE BEEN ACCEPTABLE TO THE NAACP SO LONG AS
SUCH A LAWYER REMAINED ON ITS LEGAL STAFF.  AND THE STATE COURT'S
OPINION MAKES IT CLEAR THAT THAT COURT WAS NOT DIRECTING ITSELF TO ANY
SUCH SITUATION. 

NOR DO I THINK IT MAY REASONABLY BE CONCLUDED THAT THE STATE COURT
MEANT TO PRECLUDE THE NAACP FROM RECOMMENDING "OUTSIDE" ATTORNEYS TO
PROSPECTIVE LITIGANTS, SO LONG AS IT RETAINED NO POWER OF DIRECTION
OVER SUCH LAWYERS.  BOTH IN THEIR IMMEDIATE CONTEXT AND IN LIGHT OF THE
ENTIRE OPINION AND RECORD BELOW, IT SEEMS TO ME VERY CLEAR THAT THE
PHRASES "OR ANY PARTICULR ATTORNEYS" AND "OR ANY OTHER ATTORNEYS" BOTH
HAVE REFERENCE ONLY TO THOSE "OUTSIDE" ATTORNEYS WITH RESPECT TO WHOM
THE NAACP OR THE DEFENSE FUND BORE A RELATIONSHIP EQUIVALENT TO THAT
EXISTING BETWEEN THEM AND "THEIR ATTORNEYS."  (FN14)  IT SAVORS ALMOST
OF DISRESPECT TO THE VIRGINIA SUPREME COURT OF APPEALS, WHOSE OPINION
MANIFESTS FULL AWARENESS OF THE CONSIDERATIONS THAT HAVE TRADITIONALLY
MARKED THE LINE BETWEEN PROFESSIONAL AND UNPROFESSIONAL CONDUCT, TO
READ THIS PART OF ITS OPINION OTHERWISE.  INDEED THE AMBIGUITY WHICH
THIS COURT NOW FINDS QUITE EVIDENTLY ESCAPED THE NOTICE OF BOTH
PETITIONER AND ITS COUNSEL FOR THEY DID NOT SO MUCH AS SUGGEST SUCH AN
ARGUMENT IN THEIR BRIEFS.  MOREOVER, THE KIND OF APPROACH THAT THE
MAJORITY TAKES TO THE STATUTE IS QUITE INCONSISTENT WITH THE PRECEPT
THAT OUR DUTY IS TO CONSTRUE LEGISLATION, IF POSSIBLE, "TO SAVE AND NOT
TO DESTROY."  LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1,
30, AND CASES CITED; UNITED STATES V. RUMELY, 345 U.S. 41, 47. 

BUT EVEN IF THE STATUTE JUSTLY LENT ITSELF TO THE NOW ATTRIBUTED
AMBIGUITY, THE COURT SHOULD EXCISE ONLY THE AMBIGUOUS PART OF IT, NOT
STRIKE DOWN THE ENACTMENT IN ITS ENTIRETY.  OUR DUTY TO RESPECT STATE
LEGISLATION, AND TO GO NO FURTHER THAN WE MUST IN DECLINING TO SUSTAIN
ITS VALIDITY, HAS LED TO A DOCTRINE OF SEPARABILITY IN CONSTITUTIONAL
ADJUDICATION, ALWAYS FOLLOWED EXCEPT IN INSTANCES WHEN ITS EFFECT WOULD
BE TO LEAVE STANDING A STATUTE THAT WAS STILL UNCERTAIN IN ITS
POTENTIAL APPLICATION.  (FN15)  SEE SMITH V. CALIFORNIA, 361 U.S. 147,
151.  GIVEN THE "AMBIGUITY" VIEW OF THE COURT, THE SEPARABILITY
DOCTRINE SHOULD AT LEAST HAVE BEEN APPLIED HERE, SINCE WHAT WOULD THEN
REMAIN OF CHAPTER 33 COULD NOT CONCEIVABLY BE DEEMED AMBIGUOUS.  (FN16)
IN MY VIEW, HOWEVER, THE STATUTE AS CONSTRUED BELOW IS NOT AMBIGUOUS
AT ALL. 

V. 

SINCE THE MAJORITY HAS FOUND IT UNNECESSARY TO CONSIDER THEM, ONLY A
FEW WORDS NEED BE SAID WITH RESPECT TO PETITIONER'S CONTENTIONS THAT
CHAPTER 33 DEPRIVES IT OF PROPERTY WITHOUT DUE PROCESS OF LAW AND
DENIES IT EQUAL PROTECTION. 

THE DUE PROCESS CLAIM IS DISPOSED OF ONCE IT APPEARS THAT THIS
STATUTE FALLS WITHIN THE RANGE OF PERMISSIBLE STATE REGULATION IN
PURSUANCE OF A LEGITIMATE GOAL.  PP. 455-465, SUPRA. 

AS TO EQUAL PROTECTION, THIS POSITION IS PREMISED ON THE CLAIM THAT
THE LAW WAS DIRECTED SOLELY AT PETITIONER'S ACTIVITIES ON BEHALF OF
NEGRO LITIGANTS.  BUT CHAPTER 33 AS IT COMES TO US, WITH A NARROWING
CONSTRUCTION BY THE STATE COURT THAT ANCHORS THE STATUTE FIRMLY TO THE
COMMON LAW AND TO THE COURT'S OWN INDEPENDENTLY EXISTING SUPERVISORY
POWERS OVER THE VIRGINIA LEGAL PROFESSION, LEAVES NO ROOM FOR ANY
FINDING OF DISCRIMINATORY PURPOSE.  PETITIONER IS MERELY ONE OF A
VARIETY OF ORGANIZATIONS THAT MAY COME WITHIN THE SCOPE OF THE LONG
STANDING PROHIBITIONS AGAINST SOLICITATION AND UNAUTHORIZED PRACTICE. 
IT WOULD OF COURSE BE OPEN TO THE PETITIONER, IF THE FACTS SHOULD
WARRANT, TO CLAIM THAT CHAPTER 33 WAS BEING ENFORCED DISCRIMINATORILY
AS TO IT AND NOT AGAINST OTHERS SIMILARLY CIRCUMSTANCED.  SEE YICK WO
V. HOPKINS, 118 U.S. 356, 373-374.  BUT THE PRESENT RECORD IS BARREN OF
ANY EVIDENCE SUGGESTING SUCH UNEQUAL APPLICATION, AND WE MAY NOT
PRESUME THAT IT WILL OCCUR.  LIEBERMAN V. VAN DE CARR, 199 U.S. 552,
562-563; DOUGLAS V. NOBLE, 261 U.S. 165, 170.  (FN17)  I WOULD AFFIRM. 

FN1  KONIGSBERG V. STATE BAR, 366 U.S. 36, 50-51; AND SEE CASES CITED
THEREIN, INCLUDING COX V. NEW HAMPSHIRE, 312 U.S. 569; CHAPLINSKY V.
NEW HAMPSHIRE, 315 U.S. 568; BREARD V. ALEXANDRIA, 341 U.S. 622; ROTH
V. UNITED STATES, 354 U.S. 476; BATES V. LITTLE ROCK, 361 U.S. 516,
524; WILKINSON V. UNITED STATES, 365 U.S. 399. 

FN2  SEE THOMAS V. COLLINS, 323 U.S. 516, 544-545 (CONCURRING
OPINION); AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382; DE VEAU
V. BRAISTED, 363 U.S. 144. 

FN3  SEE THE DISCUSSION IN HAGUE V. C.I.O., 307 U.S. 496, 518, 523
525 (OPINION OF MR. JUSTICE STONE). 

FN4  SEE, E.G., THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF
1959, 73 STAT. 519, 29 U.S.C. (SUPP. III) SECS. 401 ET SEQ.

FN5  SEE 4 BLACKSTONE, COMMENTARIES, 134-136.  EVEN APART FROM ANY
STATE STATUTORY PROVISIONS, STATE JUDICIARIES NORMALLY CONSIDER
THEMSELVES FREE, IN THE EXERCISE OF THEIR SUPERVISORY AUTHORITY OVER
THE BAR, TO ENFORCE THESE PROHIBITIONS DERIVED FROM THE COMMON LAW. 
SEE, E.G., IN RE CO-OPERATIVE LAW CO., 198 N.Y. 479, 92 N.E. 15; PEOPLE
EX REL. COURTNEY V. ASSOCIATION OF REAL ESTATE TAX-PAYERS, 354 ILL.
102, 187 N.E. 823; IN RE MACLUB OF AMERICA, INC., 295 MASS.  45, 3
N.E.2D 272, AND CASES CITED THEREIN.  MANY STATES, HOWEVER, ALSO HAVE
STATUTES DEALING WITH THESE MATTERS.  SOME MERELY INCORPORATE THE
COMMON-LAW PROSCRIPTIONS OF BARRATRY AND MAINTENANCE.  E.G., DEL. CODE
ANN., 1953, TIT. 11, SEC. 371; MO. STAT. ANN., SEC. 557.470 (VERNON,
1953).  SEVERAL SPECIFICALLY PROHIBIT THE SOLICITATION OF LEGAL
BUSINESS FOR A LAWYER BY AN AGENT OR "RUNNER."  E.G., CONN. GEN. STAT.,
1958, SEC. 51-87; N.C. GEN. STAT., SEC. 84-38 (1958 REPL.  VOL.); WIS.
STAT. ANN., SEC. 256.295(1).  ABOUT 25 STATES PROHIBIT THE UNAUTHORIZED
PRACTICE OF LAW BY CORPORATIONS.  AMERICAN BAR FOUNDATION, UNAUTHORIZED
PRACTICE STATUTE BOOK (1961), 78-90. 

VIRGINIA'S CONCERN WITH THESE PROBLEMS DATES BACK TO THE BEGINNING OF
THE COMMONWEALTH.  ACT OF DECEMBER 8, 1792, 1 VA. STAT. 110 (SHEPHERD,
1835).  SECTIONS 54-74 AND 54-78, WHICH AS AMENDED ARE BEFORE US TODAY,
WERE ORIGINALLY ENACTED IN 1932, VA. ACTS 1932, CC. 129, 284, AND THE
VIRGINIA SUPREME COURT OF APPEALS ADOPTED THE AMERICAN BAR ASSOCIATION
CANONS OF ETHICS IN HAEC VERBA IN 1938.  VIRGINIA CANONS OF
PROFESSIONAL ETHICS, 171 VA. XVIII-XXXV.  AS IN MANY OTHER STATES, THE
JUDICIARY OF VIRGINIA HAS DECLARED ITS INHERENT AUTHORITY TO ASSURE
PROPER ETHICAL DEPORTMENT.  SEE, E.G., RICHMOND ASSN. OF CREDIT MEN,
INC., V. BAR ASSN., 167 VA. 327, 335-336, 189 S.E. 153, 157. 

FN6  VIRGINIA'S POLICY OF PROMOTING AID TO INDIGENT SUITORS IS OF
LONG STANDING, SEE 2 THE PAPERS OF THOMAS JEFFERSON (BOYD ED. 1950),
628, AND THE DECISION OF THE STATE COURT IN THIS CASE FULLY IMPLEMENTS
THAT POLICY. 

FN7  THE COURT, P. 442, N. 25, ANTE, DEALS WITH THE REAL ESTATE TAX
PAYERS CASE SIMPLY BY REFERRING TO IT AS ONE IN WHICH THE "PARTIES AND
ASSOCIATION ATTORNEYS HAD LARGE SUMS OF MONEY AT STAKE."  IT IS TRUE
THAT THE ATTORNEYS THERE (AS HERE) WERE PAID FOR THEIR SERVICES BY THE
ASSOCIATION ALTHOUGH WE ARE NOT TOLD THE AMOUNT OF THE PAYMENT TO ANY
ATTORNEY.  IT IS ALSO TRUE THAT THE CONSTITUTIONAL RIGHTS WHICH THE
MEMBERS WERE THERE SEEKING TO ASSERT THROUGH THE NONPROFIT ASSOCIATION
WERE PROPERTY RIGHTS, HAVING MONETARY VALUE.  BUT I FAIL TO SEE HOW
THESE FACTORS CAN BE DEEMED TO CREATE AN "ELEMENT OF PECUNIARY GAIN"
WHICH DISTINGUISHES THE REAL ESTATE TAX-PAYERS CASE FROM THE PRESENT
ONE IN ANY SIGNIFICANT RESPECT. 

FN8  THE ACTIVITIES OF THE ASSOCIATION IN THIS MACLUB CASE WERE MORE
LIMITED THAN THOSE OF THE ASSOCIATION IN THE REAL ESTATE TAX-PAYERS
CASE.  THE ATTORNEYS IN MACLUB WERE SELECTED AND RETAINED DIRECTLY BY
THE MEMBERS AND BILLS WERE THEN SUBMITTED TO AND PAID BY THE
ASSOCIATION. 

FN9  35 STAT. 65 (1908), AS AMENDED, 45 U.S.C. SECS. 51-60. 

FN10  SEE, E.G., WEIHOFEN, "PRACTICE OF LAW" BY NON-PECUNIARY
CORPORATIONS:  A SOCIAL UTILITY, 2 U. OF CHI.  L. REV. 119; DRINKER,
LEGAL ETHICS, 161-167; TRAYNOR, J., DISSENTING IN HILDEBRAND V. STATE
BAR, SUPRA. 

FN11  IN ADDITION TO THE DECISIONS DISCUSSED IN THE TEXT, FURTHER
EVIDENCE OF THE ATTITUDE OF THE BENCH AND BAR IS FOUND IN A SURVEY
DESCRIBED IN MCCRACKEN, REPORT ON OBSERVANCE BY THE BAR OF STATED
PROFESSIONAL STANDARDS, 37 VA. L. REV. 399, 400-401 (1951). 

FN12  IT IS INTERESTING TO NOTE THE COURT'S RELIANCE ON OPINION 148,
OPINIONS OF THE COMMITTEE ON PROFESSIONAL ETHICS AND GRIEVANCES,
AMERICAN BAR ASSN.  THIS OPINION, ISSUED IN 1935 AT THE HEIGHT OF THE
RESENTMENT IN CERTAIN QUARTERS AGAINST THE NEW DEAL, APPROVED THE
PRACTICE OF THE NATIONAL LAWYERS COMMITTEE OF THE LIBERTY LEAGUE IN
PUBLICLY OFFERING FREE LEGAL SERVICES (WITHOUT COMPENSATION FROM ANY
SOURCE) TO ANYONE WHO WAS UNABLE TO AFFORD TO CHALLENGE THE
CONSTITUTIONALITY OF LEGISLATION WHICH HE BELIEVED WAS VIOLATING HIS
RIGHTS.  THE OPINION MAY WELL BE DEBATABLE AS A MATTER OF
INTERPRETATION OF THE CANONS.  BUT IN ANY EVENT I THINK IT WHOLLY
UNTENABLE TO SUGGEST (AS THE COURT DOES IN ITS HOLDING TODAY) THAT A
CONTRARY OPINION REGARDING PAID LEGAL SERVICES TO NONINDIGENT LITIGANTS
WOULD BE UNCONSTITUTIONAL. 

FN13  AS A COROLLARY, ATTORNEYS ARE PROHIBITED, BY THE LAW AS
CONSTRUED, FROM ACCEPTING EMPLOYMENT BY PETITIONER IN SUITS SOLICITED
BY PETITIONER. 

FN14 THE FULL TEXT OF THOSE PORTIONS OF THE STATE COURT OPINION IN
WHICH THESE PHRASES APPEAR IS QUOTED IN FOOTNOTE 9 OF THE MAJORITY
OPINION, ANTE, P. 426. 

FN15  OF COURSE, IF WE REFUSE TO SUSTAIN ONE PART OF A STATE STATUTE,
THE STATE COURT ON REMAND MAY DECIDE THAT THE REMAINDER OF THE STATUTE
CAN NO LONGER STAND, BUT INSOFAR AS THAT CONCLUSION IS REACHED AS A
MATTER OF STATE LAW, IT IS OF NO CONCERN TO US. 

FN16  CF. STROMBERG V. CALIFORNIA, 283 U.S. 359, IN WHICH THE STATE
LAW CONDEMNED THE DISPLAYING OF A RED FLAG FOR ANY OF THREE PURPOSES
AND THIS COURT SUSTAINED THE VALIDITY OF THE LAW AS TO TWO OF THESE
PURPOSES BUT STRUCK IT DOWN FOR VAGUENESS AS TO THE THIRD. 

FN17  IT HAS BEEN SUGGESTED THAT THE STATE LAW MAY CONTAIN AN
INVIDIOUS DISCRIMINATION BECAUSE IT TREATS THOSE ORGANIZATION THAT HAVE
A PECUNIARY INTEREST IN LITIGATION (FOR EXAMPLE, AN INSURANCE COMPANY)
DIFFERENTLY FROM THOSE THAT DO NOT.  BUT SURELY IT CANNOT BE SAID THAT
THIS DISTINCTION, WHICH IS SO CLOSELY RELATED TO TRADITIONAL CONCEPTS
OF PRIVITY, LACKS ANY RATIONAL BASIS.  THE IMPORTANCE OF THE EXISTENCE
OF A PECUNIARY INTEREST IN DETERMINING THE PROPRIETY OF SPONSORING
LITIGATION HAS LONG BEEN RECOGNIZED AT COMMON LAW, BOTH IN ENGLAND, SEE
FINDON V. PARKER, 11 M.&W. 675, 152 ENG. REP. 976 (EXCH.  1843), AND IN
THE UNITED STATES, SEE, E.G., DORWIN V. SMITH, 35 VT. 69; VAUGHAN V.
MARABLE, 64 ALA. 60, 66-67; SMITH V. HARTSELL, 150 N.C. 71, 63 S.E.
172.  THE DISTINCTION DRAWN BY THE VIRGINIA LAW IS NOT WITHOUT PARALLEL
IN THE REQUIREMENT THAT IN THE ABSENCE OF A STATUTE OR RULE A SUIT IN A
FEDERAL COURT ATTACKING THE VALIDITY OF A LAW MAY BE BROUGHT ONLY BY
ONE WHO IS IN IMMEDIATE DANGER OF SUSTAINING SOME DIRECT AND
SUBSTANTIAL INJURY AS THE RESULT OF ITS ENFORCEMENT, AND NOT BY ONE WHO
MERELY "SUFFERS IN SOME INDEFINITE WAY IN COMMON WITH PEOPLE
GENERALLY," OR EVEN IN COMMON WITH MEMBERS OF THE SAME RACE OR CLASS. 
MASSACHUSETTS V. MELLON, 262 U.S. 447, 487-488.  SEE MCCABE V.
ATCHISON, T.&S.F.R. CO., 235 U.S. 151, 162.  AND OF COURSE THE MOTIVES
OF THE VIRGINIA LEGISLATORS IN ENACTING CHAPTER 33 ARE BYOND THE
PURVIEW OF THIS COURT'S RESPONSIBILITIES.  FLETCHER V. PECK, 6 CRANCH
87, 130; SEE ARIZONA V. CALIFORNIA, 283 U.S. 423, 455; CF. TENNEY V.
BRANDHOVE, 341 U.S. 367, 377. 
..END :









WONG SUN V. UNITED STATES 371 U.S. 471 


NO. 36.  ARGUED MARCH 29 AND APRIL 2, 1962.  - RESTORED TO CALENDAR FOR
REARGUMENT JUNE 4, 1962.  - REARGUED OCTOBER 8, 1962.  - DECIDED
JANUARY 14, 1963.  - 288 F.2D 366, REVERSED AND CAUSE REMANDED. 


IN A TRIAL IN A FEDERAL DISTRICT COURT WITHOUT A JURY, PETITIONERS
WERE CONVICTED OF FRAUDULENT AND KNOWING TRANSPORTATION AND CONCEALMENT
OF ILLEGALLY IMPORTED HEROIN, IN VIOLATION OF 21 U.S.C. SEC. 174. 
ALTHOUGH THE COURT OF APPEALS HELD THAT THE ARRESTS OF BOTH PETITIONERS
WITHOUT WARRANTS WERE ILLEGAL, BECAUSE NOT BASED ON "PROBABLE CAUSE"
WITHIN THE MEANING OF THE FOURTH AMENDMENT NOR "REASONABLE GROUNDS"
WITHIN THE MEANING OF THE NARCOTICS CONTROL ACT OF 1956, IT AFFIRMED
THEIR CONVICTIONS, NOTWITHSTANDING THE ADMISSION IN EVIDENCE OVER THEIR
TIMELY OBJECTIONS OF (1) STATEMENTS MADE ORALLY BY PETITIONER TOY IN
HIS BEDROOM AT THE TIME OF HIS ARREST; (2) HEROIN SURRENDERED TO THE
AGENTS BY A THIRD PARTY AS A RESULT OF THOSE STATEMENTS; AND (3)
UNSIGNED STATEMENTS MADE BY EACH PETITIONER SEVERAL DAYS AFTER HIS
ARREST, AND AFTER BEING LAWFULLY ARRAIGNED AND RELEASED ON HIS OWN
RECOGNIZANCE.  THE COURT OF APPEALS HELD THAT THESE ITEMS WERE NOT THE
FRUITS OF THE ILLEGAL ARRESTS, AND, THEREFORE, WERE PROPERLY ADMITTED
IN EVIDENCE.  HELD: 

1.  ON THE RECORD IN THIS CASE, THERE WAS NEITHER REASONABLE GROUNDS
NOR PROBABLE CAUSE FOR TOY'S ARREST, SINCE THE INFORMATION UPON WHICH
IT WAS BASED WAS TOO VAGUE AND CAME FROM TOO UNTESTED A SOURCE TO
ACCEPT IT AS PROBABLE CAUSE FOR THE ISSUANCE OF AN ARREST WARRANT; AND
THIS DEFECT WAS NOT CURED BY THE FACT THAT TOY FLED WHEN A SUPPOSED
CUSTOMER AT HIS DOOR EARLY IN THE MORNING REVEALED THAT HE WAS A
NARCOTICS AGENT.  PP. 479-484. 

2.  ON THE RECORD IN THIS CASE, THE STATEMENTS MADE BY TOY IN HIS
BEDROOM AT THE TIME OF HIS UNLAWFUL ARREST WERE THE FRUITS OF THE
AGENTS' UNLAWFUL ACTION, AND THEY SHOULD HAVE BEEN EXCLUDED FROM
EVIDENCE.  PP. 484-487. 

3.  THE NARCOTICS TAKEN FROM A THIRD PARTY AS A RESULT OF STATEMENTS
MADE BY TOY AT THE TIME OF HIS ARREST WERE LIKEWISE FRUITS OF THE
UNLAWFUL ARREST, AND THEY SHOULD NOT HAVE BEEN ADMITTED AS EVIDENCE
AGAINST TOY.  PP. 487-488. 

4.  AFTER EXCLUSION OF THE FOREGOING ITEMS OF IMPROPERLY ADMITTED
EVIDENCE, THE ONLY PROOFS REMAINING TO SUSTAIN TOY'S CONVICTION ARE HIS
AND HIS CODEFENDANT'S UNSIGNED STATEMENTS; ANY ADMISSIONS OF GUILT IN
TOY'S STATEMENT REQUIRE CORROBORATION; NO REFERENCE TO TOY IN HIS
CODEFENDANT'S STATEMENT CONSTITUTES ADMISSIBLE EVIDENCE CORROBORATING
ANY ADMISSION BY TOY; AND TOY'S CONVICTION MUST BE SET ASIDE FOR LACK
OF COMPETENT EVIDENCE TO SUPPORT IT.  PP. 488-491. 

5.  IN VIEW OF THE FACT THAT, AFTER HIS UNLAWFUL ARREST, PETITIONER
WONG SUN HAD BEEN LAWFULLY ARRAIGNED AND RELEASED ON HIS OWN
RECOGNIZANCE AND HAD RETURNED VOLUNTARILY SEVERAL DAYS LATER WHEN HE
MADE HIS UNSIGNED STATEMENT, THE CONNECTION BETWEEN HIS UNLAWFUL ARREST
AND THE MAKING OF THAT STATEMENT WAS SO ATTENUATED THAT THE UNSIGNED
STATEMENT WAS NOT THE FRUIT OF THE UNLAWFUL ARREST AND, THEREFORE, IT
WAS PROPERLY ADMITTED IN EVIDENCE.  P. 491. 

6.  THE SEIZURE OF THE NARCOTICS ADMITTED IN EVIDENCE INVADED NO
RIGHT OF PRIVACY OF PERSON OR PREMISES WHICH WOULD ENTITLE WONG SUN TO
OBJECT TO ITS USE AT HIS TRIAL.  PP. 491-492. 

7.  ANY REFERENCE TO WONG SUN IN HIS CODEFENDANT'S STATEMENT WERE
INCOMPETENT TO CORROBORATE WONG SUN'S ADMISSIONS, AND WONG SUN IS
ENTITLED TO A NEW TRIAL, BECAUSE IT IS NOT CLEAR FROM THE RECORD
WHETHER OR NOT THE TRIAL COURT RELIED UPON HIS CODEFENDANT'S STATEMENT
AS A SOURCE OF CORROBORATION OF WONG SUN'S CONFESSION.  PP. 492-493. 

WONG SUN ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE TRIED WITHOUT A JURY IN THE DISTRICT COURT FOR
THE NORTHERN DISTRICT OF CALIFORNIA UNDER A TWO-COUNT INDICTMENT FOR
VIOLATION OF THE FEDERAL NARCOTICS LAWS, 21 U.S.C. SEC. 174.  (FN1)
THEY WERE ACQUITTED UNDER THE FIRST COUNT WHICH CHARGED A CONSPIRACY,
BUT CONVICTED UNDER THE SECOND COUNT WHICH CHARGED THE SUBSTANTIVE
OFFENSE OF FRAUDULENT AND KNOWING TRANSPORTATION AND CONCEALMENT OF
ILLEGALLY IMPORTED HEROIN.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT,
ONE JUDGE DISSENTING, AFFIRMED THE CONVICTIONS.  288 F.2D 366.  WE
GRANTED CERTIORARI.  368 U.S. 817.  WE HEARD ARGUMENT IN THE 1961 TERM
AND REARGUMENT THIS TERM.  370 U.S. 908. 

ABOUT 2 A.M. ON THE MORNING OF JUNE 4, 1959, FEDERAL NARCOTICS AGENTS
IN SAN FRANCISCO, AFTER HAVING HAD ONE HOM WAY UNDER SURVEILLANCE FOR
SIX WEEKS, ARRESTED HIM AND FOUND HEROIN IN HIS POSSESSION.  HOM WAY,
WHO HAD NOT BEFORE BEEN AN INFORMANT, STATED AFTER HIS ARREST THAT HE
HAD BOUGHT AN OUNCE OF HEROIN THE NIGHT BEFORE FROM ONE KNOWN TO HIM
ONLY AS "BLACKIE TOY," PROPRIETOR OF A LAUNDRY ON LEAVENWORTH STREET. 

ABOUT 6 A.M. THAT MORNING SIX OR SEVEN FEDERAL AGENTS WENT TO A
LAUNDRY AT 1733 LEAVENWORTH STREET.  THE SIGN ABOVE THE DOOR OF THIS
ESTABLISHMENT SAID "OYE'S LAUNDRY."  IT WAS OPERATED BY THE PETITIONER
JAMES WAH TOY.  THERE IS, HOWEVER, NOTHING IN THE RECORD WHICH
IDENTIFIES JAMES WAH TOY AND "BLACKIE TOY" AS THE SAME PERSON.  THE
OTHER FEDERAL OFFICERS REMAINED NEARBY OUT OF SIGHT WHILE AGENT ALTON
WONG, WHO WAS OF CHINESE ANCESTRY, RANG THE BELL.  WHEN PETITIONER TOY
APPEARED AND OPENED THE DOOR, AGENT WONG TOLD HIM THAT HE WAS CALLING
FOR LAUNDRY AND DRY CLEANING.  TOY REPLIED THAT HE DIDN'T OPEN UNTIL 8
O'CLOCK AND TOLD THE AGENT TO COME BACK AT THAT TIME.  TOY STARTED TO
CLOSE THE DOOR.  AGENT WONG THEREUPON TOOK HIS BADGE FROM HIS POCKET
AND SAID, "I AM A FEDERAL NARCOTICS AGENT."  TOY IMMEDIATELY "SLAMMED
THE DOOR AND STARTED RUNNING" DOWN THE HALLWAY THROUGH THE LAUNDRY TO
HIS LIVING QUARTERS AT THE BACK WHERE HIS WIFE AND CHILD WERE SLEEPING
IN A BEDROOM.  AGENT WONG AND THE OTHER FEDERAL OFFICERS BROKE OPEN THE
DOOR AND FOLLOWED TOY DOWN THE HALLWAY TO THE LIVING QUARTERS AND INTO
THE BEDROOM.  TOY REACHED INTO A NIGHTSTAND DRAWER.  AGENT WONG
THEREUPON DREW HIS PISTOL, PULLED TOY'S HAND OUT OF THE DRAWER, PLACED
HIM UNDER ARREST AND HANDCUFFED HIM.  THERE WAS NOTHING IN THE DRAWER
AND A SEARCH OF THE PREMISES UNCOVERED NO NARCOTICS. 

ONE OF THE AGENTS SAID TO TOY "  ...  (HOM WAY) SAYS HE GOT NARCOTICS
FROM YOU."  TOY RESPONDED, "NO, I HAVEN'T BEEN SELLING ANY NARCOTICS AT
ALL.  HOWEVER, I DO KNOW SOMEBODY WHO HAS."  WHEN ASKED WHO THAT WAS,
TOY SAID, "I ONLY KNOW HIM AS JOHNNY.  I DON'T KNOW HIS LAST NAME." 
HOWEVER, TOY DESCRIBED A HOUSE ON ELEVENTH AVENUE WHERE HE SAID JOHNNY
LIVED; HE ALSO DESCRIBED A BEDROOM IN THE HOUSE WHERE HE SAID "JOHNNY
KEPT ABOUT A PIECE" (FN2) OF HEROIN, AND WHERE HE AND JOHNNY HAD SMOKED
SOME OF THE DRUG THE NIGHT BEFORE.  THE AGENTS LEFT IMMEDIATELY FOR
ELEVENTH AVENUE AND LOCATED THE HOUSE.  THEY ENTERED AND FOUND ONE
JOHNNY YEE IN THE BEDROOM.  AFTER A DISCUSSION WITH THE AGENTS, YEE
TOOK FROM A BUREAU DRAWER SEVERAL TUBES CONTAINING IN ALL JUST LESS
THAN ONE OUNCE OF HEROIN, AND SURRENDERED THEM.  WITHIN THE HOUR YEE
AND TOY WERE TAKEN TO THE OFFICE OF THE BUREAU OF NARCOTICS.  YEE THERE
STATED THAT THE HEROIN HAD BEEN BROUGHT TO HIM SOME FOUR DAYS EARLIER
BY PETITIONER TOY AND ANOTHER CHINESE KNOWN TO HIM ONLY AS "SEA DOG." 

TOY WAS QUESTIONED AS TO THE IDENTITY OF "SEA DOG" AND SAID THAT "SEA
DOG" WAS WONG SUN.  SOME AGENTS, INCLUDING AGENT ALTON WONG, TOOK TOY
TO WONG SUN'S NEIGHBORHOOD WHERE TOY POINTED OUT A MULTIFAMILY DWELLING
WHERE HE SAID WONG SUN LIVED.  AGENT WONG RANG A DOWNSTAIRS DOOR BELL
AND A BUZZER SOUNDED, OPENING THE DOOR.  THE OFFICER IDENTIFIED HIMSELF
AS A NARCOTICS AGENT TO A WOMAN ON THE LANDING AND ASKED "FOR MR.
WONG."  THE WOMAN WAS THE WIFE OF PETITIONER WONG SUN.  SHE SAID THAT
WONG SUN WAS "IN THE BACK ROOM SLEEPING."  ALTON WONG AND SOME SIX
OTHER OFFICERS CLIMBED THE STAIRS AND ENTERED THE APARTMENT.  ONE OF
THE OFFICERS WENT INTO THE BACK ROOM AND BROUGHT PETITIONER WONG SUN
FROM THE BEDROOM IN HANDCUFFS.  A THOROUGH SEARCH OF THE APARTMENT
FOLLOWED, BUT NO NARCOTICS WERE DISCOVERED. 

PETITIONER TOY AND JOHNNY YEE WERE ARRAIGNED BEFORE A UNITED STATES
COMMISSIONER ON JUNE 4 ON A COMPLAINT CHARGING A VIOLATION OF 21 U.S.C.
SEC. 174.  LATER THAT DAY, EACH WAS RELEASED ON HIS OWN RECOGNIZANCE. 
PETITIONER WONG SUN WAS ARRAIGNED ON A SIMILAR COMPLAINT FILED THE NEXT
DAY AND WAS ALSO RELEASED ON HIS OWN RECOGNIZANCE.  (FN3)  WITHIN A FEW
DAYS, BOTH PETITIONERS AND YEE WERE INTERROGATED AT THE OFFICE OF THE
NARCOTICS BUREAU BY AGENT WILLIAM WONG, ALSO OF CHINESE ANCESTRY. 
(FN4)  THE AGENT ADVISED EACH OF THE THREE OF HIS RIGHT TO WITHHOLD
INFORMATION WHICH MIGHT BE USED AGAINST HIM, AND STATED TO EACH THAT HE
WAS ENTITLED TO THE ADVICE OF COUNSEL, THOUGH IT DOES NOT APPEAR THAT
ANY ATTORNEY WAS PRESENT DURING THE QUESTIONING OF ANY OF THE THREE. 
THE OFFICER ALSO EXPLAINED TO EACH THAT NO PROMISES OR OFFERS OF
IMMUNITY OR LENIENCY WERE BEING OR COULD BE MADE. 

THE AGENT INTERROGATED EACH OF THE THREE SEPARATELY.  AFTER EACH HAD
BEEN INTERROGATED THE AGENT PREPARED A STATEMENT IN ENGLISH FROM ROUGH
NOTES.  THE AGENT READ PETITIONER TOY'S STATEMENT TO HIM IN ENGLISH AND
INTERPRETED CERTAIN PORTIONS OF IT FOR HIM IN CHINESE.  TOY ALSO READ
THE STATEMENT IN ENGLISH ALOUD TO THE AGENT, SAID THERE WERE
CORRECTIONS TO BE MADE, AND MADE THE CORRECTIONS IN HIS OWN HAND.  TOY
WOULD NOT SIGN THE STATEMENT, HOWEVER; IN THE AGENT'S WORDS "HE WANTED
TO KNOW FIRST IF THE OTHER PERSONS INVOLVED IN THE CASE HAD SIGNED
THEIRS."  WONG SUN HAD CONSIDERABLE DIFFICULTY UNDERSTANDING THE
STATEMENT IN ENGLISH AND THE AGENT RESTATED ITS SUBSTANCE IN CHINESE. 
WONG SUN REFUSED TO SIGN THE STATEMENT ALTHOUGH HE ADMITTED THE
ACCURACY OF ITS CONTENTS.  (FN5) 

HOM WAY DID NOT TESTIFY AT PETITIONERS' TRIAL.  THE GOVERNMENT
OFFERED JOHNNY YEE AS ITS PRINCIPAL WITNESS BUT EXCUSED HIM AFTER HE
INVOKED THE PRIVILEGE AGAINST SELF-INCRIMINATION AND FLATLY REPUDIATED
THE STATEMENT HE HAD GIVEN TO AGENT WILLIAM WONG.  THAT STATEMENT WAS
NOT OFFERED IN EVIDENCE NOR WAS ANY TESTIMONY ELICITED FROM HIM
IDENTIFYING EITHER PETITIONER AS THE SOURCE OF THE HEROIN IN HIS
POSSESSION, OR OTHERWISE TENDING TO SUPPORT THE CHARGES AGAINST THE
PETITIONERS. 

THE STATUTE EXPRESSLY PROVIDES THAT PROOF OF THE ACCUSED'S POSSESSION
OF THE DRUG WILL SUPPORT A CONVICTION UNDER THE STATUTE UNLESS THE
ACCUSED SATISFACTORILY EXPLAINS THE POSSESSION.  THE GOVERNMENT'S
EVIDENCE TENDING TO PROVE THE PETITIONERS' POSSESSION (THE PETITIONERS
OFFERED NO EXCULPATORY TESTIMONY) CONSISTED OF FOUR ITEMS WHICH THE
TRIAL COURT ADMITTED OVER TIMELY OBJECTIONS THAT THEY WERE INADMISSIBLE
AS "FRUITS" OF UNLAWFUL ARRESTS OR OF ATTENDANT SEARCHES:  (1) THE
STATEMENTS MADE ORALLY BY PETITIONER TOY IN HIS BEDROOM AT THE TIME OF
HIS ARREST; (2) THE HEROIN SURRENDERED TO THE AGENTS BY JOHNNY YEE; (3)
PETITIONER TOY'S PRETRIAL UNSIGNED STATEMENT; AND (4) PETITIONER WONG
SUN'S SIMILAR STATEMENT.  THE DISPUTE BELOW AND HERE HAS CENTERED
AROUND THE CORRECTNESS OF THE RULINGS OF THE TRIAL JUDGE ALLOWING THESE
ITEMS IN EVIDENCE. 

THE COURT OF APPEALS HELD THAT THE ARRESTS OF BOTH PETITIONERS WERE
ILLEGAL BECAUSE NOT BASED ON " 'PROBABLE CAUSE' WITHIN THE MEANING OF
THE FOURTH AMENDMENT" NOR "REASONABLE GROUNDS" WITHIN THE MEANING OF
THE NARCOTIC CONTROL ACT OF 1956.  (FN6)  THE COURT SAID AS TO TOY'S
ARREST, "THERE IS NO SHOWING IN THIS CASE THAT THE AGENT KNEW HOM WAY
TO BE RELIABLE," AND, FURTHERMORE, FOUND "NOTHING IN THE CIRCUMSTANCES
OCCURRING AT TOY'S PREMISES THAT WOULD PROVIDE SUFFICIENT JUSTIFICATION
FOR HIS ARREST WITHOUT A WARRANT."  288 F.2D, AT 369, 370.  AS TO WONG
SUN'S ARREST, THE COURT SAID "THERE IS NO SHOWING THAT JOHNNIE YEE WAS
A RELIABLE INFORMER."  THE COURT OF APPEALS NEVERTHELESS HELD THAT THE
FOUR ITEMS OF PROOF WERE NOT THE "FRUITS" OF THE ILLEGAL ARRESTS AND
THAT THEY WERE THEREFORE PROPERLY ADMITTED IN EVIDENCE. 

THE COURT OF APPEALS REJECTED TWO ADDITIONAL CONTENTIONS OF THE
PETITIONERS.  THE FIRST WAS THAT THERE WAS INSUFFICIENT EVIDENCE TO
CORROBORATE THE PETITIONERS' UNSIGNED ADMISSIONS OF POSSESSION OF
NARCOTICS.  THE COURT HELD THAT THE NARCOTICS IN EVIDENCE SURRENDERED
BY JOHNNY YEE, TOGETHER WITH TOY'S STATEMENTS IN HIS BEDROOM AT THE
TIME OF ARREST CORROBORATED PETITIONERS' ADMISSIONS.  THE SECOND
CONTENTION WAS THAT THE CONFESSIONS WERE INADMISSIBLE BECAUSE THEY WERE
NOT SIGNED.  THE COURT OF APPEALS HELD ON THIS POINT THAT THE
PETITIONERS WERE NOT PREJUDICED, SINCE THE AGENT MIGHT PROPERLY HAVE
TESTIFIED TO THE SUBSTANCE OF THE CONVERSATIONS WHICH PRODUCED THE
STATEMENTS. 

WE BELIEVE THAT SIGNIFICANT DIFFERENCES BETWEEN THE CASES OF THE TWO
PETITIONERS REQUIRE SEPARATE DISCUSSION OF EACH.  WE SHALL FIRST
CONSIDER THE CASE OF PETITIONER TOY. 

                                              I. 

THE COURT OF APPEALS FOUND THERE WAS NEITHER REASONABLE GROUNDS NOR
PROBABLE CAUSE FOR TOY'S ARREST.  GIVING DUE WEIGHT TO THAT FINDING, WE
THINK IT IS AMPLY JUSTIFIED BY THE FACTS CLEARLY SHOWN ON THIS RECORD. 
IT IS BASIC THAT AN ARREST WITH OR WITHOUT A WARRANT MUST STAND UPON
FIRMER GROUND THAN MERE SUSPICION, SEE HENRY V. UNITED STATES, 361 U.S.
98, 101, THOUGH THE ARRESTING OFFICER NEED NOT HAVE IN HAND EVIDENCE
WHICH WOULD SUFFICE TO CONVICT.  THE QUANTUM OF INFORMATION WHICH
CONSTITUTES PROBABLE CAUSE - EVIDENCE WHICH WOULD "WARRANT A MAN OF
REASONABLE CAUTION IN THE BELIEF" THAT A FELONY HAS BEEN COMMITTED,
CARROLL V. UNITED STATES, 267 U.S. 132, 162 - MUST BE MEASURED BY THE
FACTS OF THE PARTICULAR CASE.  THE HISTORY OF THE USE, AND NOT
INFREQUENT ABUSE, OF THE POWER TO ARREST CAUTIONS THAT A RELAXATION OF
THE FUNDAMENTAL REQUIREMENTS OF PROBABLE CAUSE WOULD "LEAVE LAW-ABIDING
CITIZENS AT THE MERCY OF THE OFFICERS' WHIM OR CAPRICE."  (FN7)
BRINEGAR V. UNITED STATES, 338 U.S. 160, 176. 

WHETHER OR NOT THE REQUIREMENTS OF RELIABILITY AND PARTICULARITY OF
THE INFORMATION ON WHICH AN OFFICER MAY ACT ARE MORE STRINGENT WHERE AN
ARREST WARRANT IS ABSENT, THEY SURELY CANNOT BE LESS STRINGENT THAN
WHERE AN ARREST WARRANT IS OBTAINED.  OTHERWISE, A PRINCIPAL INCENTIVE
NOW EXISTING FOR THE PROCUREMENT OF ARREST WARRANTS WOULD BE
DESTROYED.  (FN8)  THE THRESHOLD QUESTION IN THIS CASE, THEREFORE, IS
WHETHER THE OFFICERS COULD, ON THE INFORMATION WHICH IMPELLED THEM TO
ACT, HAVE PROCURED A WARRANT FOR THE ARREST OF TOY.  WE THINK THAT NO
WARRANT WOULD HAVE ISSUED ON EVIDENCE THEN AVAILABLE. 

THE NARCOTICS AGENTS HAD NO BASIS IN EXPERIENCE FOR CONFIDENCE IN THE
RELIABILITY OF HOM WAY'S INFORMATION; HE HAD NEVER BEFORE GIVEN
INFORMATION.  AND YET THEY ACTED UPON HIS IMPRECISE SUGGESTION THAT A
PERSON DESCRIBED ONLY AS "BLACKIE TOY," THE PROPRIETOR OF A LAUNDRY
SOMEWHERE ON LEAVENWORTH STREET, HAD SOLD ONE OUNCE OF HEROIN.  WE HAVE
HELD THAT IDENTIFICATION OF THE SUSPECT BY A RELIABLE INFORMANT MAY
CONSTITUTE PROBABLE CAUSE FOR ARREST WHERE THE INFORMATION GIVEN IS
SUFFICIENTLY ACCURATE TO LEAD THE OFFICERS DIRECTLY TO THE SUSPECT. 
DRAPER V. UNITED STATES, 358 U.S. 307.  THAT RULE DOES NOT, HOWEVER,
FIT THIS CASE.  FOR AUGHT THAT THE RECORD DISCLOSES, HOM WAY'S
ACCUSATION MERELY INVITED THE OFFICERS TO ROAM THE LENGTH OF
LEAVENWORTH STREET (SOME 30 BLOCKS) IN SEARCH OF ONE "BLACKIE TOY'S"
LAUNDRY - AND WHETHER BY CHANCE OR OTHER MEANS (THE RECORD DOES NOT
SAY) THEY CAME UPON PETITIONER TOY'S LAUNDRY, WHICH BORE NOT HIS NAME
OVER THE DOOR, BUT THE UNREVEALING LABEL "OYE'S."  NOT THE SLIGHTEST
INTIMATION APPEARS ON THE RECORD, OR WAS MADE ON ORAL ARGUMENT, TO
SUGGEST THAT THE AGENTS HAD INFORMATION GIVING THEM REASON TO EQUATE
"BLACKIE" TOY AND JAMES WAH TOY - E.G., THAT THEY HAD A CRIMINAL RECORD
OF A TOY, OR THAT THEY HAD CONSULTED SOME OTHER KIND OF OFFICIAL RECORD
OR LIST, OR HAD SOME INFORMATION OF SOME KIND WHICH HAD NARROWED THE
SCOPE OF THEIR SEARCH TO THIS PARTICULAR TOY. 

IT IS CONCEDED THAT THE OFFICERS MADE NO ATTEMPT TO OBTAIN A WARRANT
FOR TOY'S ARREST.  THE SIMPLE FACT IS THAT ON THE SPARSE INFORMATION AT
THE OFFICERS' COMMAND, NO ARREST WARRANT COULD HAVE ISSUED CONSISTENTLY
WITH RULES 3 AND 4 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 
GIORDENELLO V. UNITED STATES, 357 U.S. 480, 486.  (FN9)  THE ARREST
WARRANT PROCEDURE SERVES TO INSURE THAT THE DELIBERATE, IMPARTIAL
JUDGMENT OF A JUDICIAL OFFICER WILL BE INTERPOSED BETWEEN THE CITIZEN
AND THE POLICE, TO ASSESS THE WEIGHT AND CREDIBILITY OF THE INFORMATION
WHICH THE COMPLAINING OFFICER ADDUCES AS PROBABLE CAUSE.  CF. JONES V.
UNITED STATES, 362 U.S. 257, 270.  TO HOLD THAT AN OFFICER MAY ACT IN
HIS OWN, UNCHECKED DISCRETION UPON INFORMATION TOO VAGUE AND FROM TOO
UNTESTED A SOURCE TO PERMIT A JUDICIAL OFFICER TO ACCEPT IT AS PROBABLE
CAUSE FOR AN ARREST WARRANT, WOULD SUBVERT THIS FUNDAMENTAL POLICY. 
THE GOVERNMENT CONTENDS, HOWEVER, THAT ANY DEFECTS IN THE INFORMATION
WHICH SOMEHOW TOOK THE OFFICERS TO PETITIONER TOY'S LAUNDRY WERE
REMEDIED BY EVENTS WHICH OCCURRED AFTER THEY ARRIVED.  SPECIFICALLY, IT
IS URGED THAT TOY'S FLIGHT DOWN THE HALL WHEN THE SUPPOSED CUSTOMER AT
THE DOOR REVEALED THAT HE WAS A NARCOTICS AGENT ADEQUATELY CORROBORATES
THE SUSPICION GENERATED BY HOM WAY'S ACCUSATION.  OUR HOLDING IN MILLER
V. UNITED STATES, 357 U.S. 301, IS RELEVANT HERE, AND EXPOSES THE
FALLACY OF THIS CONTENTION.  WE NOTED IN THAT CASE THAT THE LAWFULNESS
OF AN OFFICER'S ENTRY TO ARREST WITHOUT A WARRANT "MUST BE TESTED BY
CRITERIA IDENTICAL WITH THOSE EMBODIED IN 18 U.S.C. SEC. 3109, WHICH
DEALS WITH ENTRY TO EXECUTE A SEARCH WARRANT."  357 U.S., AT 306.  THAT
STATUTE REQUIRES THAT AN OFFICER MUST STATE HIS AUTHORITY AND HIS
PURPOSE AT THE THRESHOLD, AND BE REFUSED ADMITTANCE, BEFORE HE MAY
BREAK OPEN THE DOOR.  WE HELD THAT WHEN AN OFFICER INSUFFICIENTLY OR
UNCLEARLY IDENTIFIES HIS OFFICE OR HIS MISSION, THE OCCUPANT'S FLIGHT
FROM THE DOOR MUST BE REGARDED AS AMBIGUOUS CONDUCT.  WE EXPRESSLY
RESERVED THE QUESTION "WHETHER THE UNQUALIFIED REQUIREMENTS OF THE RULE
ADMIT OF AN EXCEPTION JUSTIFYING NONCOMPLIANCE IN EXIGENT
CIRCUMSTANCES."  357 U.S., AT 309.  IN THE INSTANT CASE, TOY'S FLIGHT
FROM THE DOOR AFFORDED NO SURER AN INFERENCE OF GUILTY KNOWLEDGE THAN
DID THE SUSPECT'S CONDUCT IN THE MILLER CASE.  AGENT WONG DID
EVENTUALLY DISCLOSE THAT HE WAS A NARCOTICS OFFICER.  HOWEVER, HE
AFFIRMATIVELY MISREPRESENTED HIS MISSION AT THE OUTSET, BY STATING THAT
HE HAD COME FOR LAUNDRY AND DRY CLEANING.  AND BEFORE TOY FLED, THE
OFFICER NEVER ADEQUATELY DISPELLED THE MISIMPRESSION ENGENDERED BY HIS
OWN RUSE.  CF. GOULED V. UNITED STATES, 255 U.S. 298; GATEWOOD V.
UNITED STATES, 209 F.2D 789. 

MOREOVER, HE MADE NO EFFORT AT THAT TIME, NOR INDEED AT ANY TIME
THEREAFTER, TO ASCERTAIN WHETHER THE MAN AT THE DOOR WAS THE "BLACKIE
TOY" NAMED BY HOM WAY.  THEREFORE, THIS IS NOT THE CASE WE HYPOTHESIZED
IN MILLER WHERE "WITHOUT AN EXPRESS ANNOUNCEMENT OF PURPOSE, THE FACTS
KNOWN TO OFFICERS WOULD JUSTIFY THEM IN BEING VIRTUALLY CERTAIN" THAT
THE PERSON AT THE DOOR KNOWS THEIR PURPOSE.  357 U.S., AT 310.  TOY'S
REFUSAL TO ADMIT THE OFFICERS AND HIS FLIGHT DOWN THE HALLWAY THUS
SIGNIFIED A GUILTY KNOWLEDGE NO MORE CLEARLY THAN IT DID A NATURAL
DESIRE TO REPEL AN APPARENTLY UNAUTHORIZED INTRUSION.  (FN10)  HERE, AS
IN MILLER, THE GOVERNMENT CLAIMS NO EXTRAORDINARY CIRCUMSTANCES - SUCH
AS THE IMMINENT DESTRUCTION OF VITAL EVIDENCE, OR THE NEED TO RESCUE A
VICTIM IN PERIL - SEE 357 U.S., AT 309 - WHICH EXCUSED THE OFFICER'S
FAILURE TRUTHFULLY TO STATE HIS MISSION BEFORE HE BROKE IN. 

A CONTRARY HOLDING HERE WOULD MEAN THAT A VAGUE SUSPICION COULD BE
TRANSFORMED INTO PROBABLE CAUSE FOR ARREST BY REASON OF AMBIGUOUS
CONDUCT WHICH THE ARRESTING OFFICERS THEMSELVES HAVE PROVOKED.  CF.
HENRY V. UNITED STATES, 361 U.S. 98, 104.  THAT RESULT WOULD HAVE THE
SAME ESSENTIAL VICE AS A PROPOSITION WE HAVE CONSISTENTLY REJECTED -
THAT A SEARCH UNLAWFUL AT ITS INCEPTION MAY BE VALIDATED BY WHAT IT
TURNS UP.  BYARS V. UNITED STATES, 273 U.S. 28; UNITED STATES V. DI RE,
332 U.S. 581, 595.  THUS WE CONCLUDE THAT THE COURT OF APPEALS' FINDING
THAT THE OFFICERS' UNINVITED ENTRY INTO TOY'S LIVING QUARTERS WAS
UNLAWFUL AND THAT THE BEDROOM ARREST WHICH FOLLOWED WAS LIKEWISE
UNLAWFUL, WAS FULLY JUSTIFIED ON THE EVIDENCE.  IT REMAINS TO BE SEEN
WHAT CONSEQUENCES FLOW FROM THIS CONCLUSION. 

                                   II. 

IT IS CONCEDED THAT TOY'S DECLARATIONS IN HIS BEDROOM ARE TO BE
EXCLUDED IF THEY ARE HELD TO BE "FRUITS" OF THE AGENTS' UNLAWFUL
ACTION. 

IN ORDER TO MAKE EFFECTIVE THE FUNDAMENTAL CONSTITUTIONAL GUARANTEES
OF SANCTITY OF THE HOME AND INVIOLABILITY OF THE PERSON, BOYD V. UNITED
STATES, 116 U.S. 616, THIS COURT HELD NEARLY HALF A CENTURY AGO THAT
EVIDENCE SEIZED DURING AN UNLAWFUL SEARCH COULD NOT CONSTITUTE PROOF
AGAINST THE VICTIM OF THE SEARCH.  WEEKS V. UNITED STATES, 232 U.S.
383.  THE EXCLUSIONARY PROHIBITION EXTENDS AS WELL TO THE INDIRECT AS
THE DIRECT PRODUCTS OF SUCH INVASIONS.  SILVERTHORNE LUMBER CO. V.
UNITED STATES, 251 U.S. 385.  MR. JUSTICE HOLMES, SPEAKING FOR THE
COURT IN THAT CASE, IN HOLDING THAT THE GOVERNMENT MIGHT NOT MAKE USE
OF INFORMATION OBTAINED DURING AN UNLAWFUL SEARCH TO SUBPOENA FROM THE
VICTIMS THE VERY DOCUMENTS ILLEGALLY VIEWED, EXPRESSED SUCCINCTLY THE
POLICY OF THE BROAD EXCLUSIONARY RULE: 

"THE ESSENCE OF A PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE IN
A CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE USED
BEFORE THE COURT BUT THAT IT SHALL NOT BE USED AT ALL.   OF COURSE THIS
DOES NOT MEAN THAT THE FACTS THUS OBTAINED BECOME SACRED AND
INACCESSIBLE.  IF KNOWLEDGE OF THEM IS GAINED FROM AN INDEPENDENT
SOURCE THEY MAY BE PROVED LIKE ANY OTHERS, BUT THE KNOWLEDGE GAINED BY
THE GOVERNMENT'S OWN WRONG CANNOT BE USED BY IT IN THE WAY PROPOSED." 
251 U.S., AT 392. 

THE EXCLUSIONARY RULE HAS TRADITIONALLY BARRED FROM TRIAL PHYSICAL,
TANGIBLE MATERIALS OBTAINED EITHER DURING OR AS A DIRECT RESULT OF AN
UNLAWFUL INVASION.  IT FOLLOWS FROM OUR HOLDING IN SILVERMAN V. UNITED
STATES, 365 U.S. 505, THAT THE FOURTH AMENDMENT MAY PROTECT AGAINST THE
OVERHEARING OF VERBAL STATEMENTS AS WELL AS AGAINST THE MORE
TRADITIONAL SEIZURE OF "PAPERS AND EFFECTS."  SIMILARLY, TESTIMONY AS
TO MATTERS OBSERVED DURING AN UNLAWFUL INVASION HAS BEEN EXCLUDED IN
ORDER TO ENFORCE THE BASIC CONSTITUTIONAL POLICIES.  MCGINNIS V. UNITED
STATES, 227 F.2D 598.  THUS, VERBAL EVIDENCE WHICH DERIVES SO
IMMEDIATELY FROM AN UNLAWFUL ENTRY AND AN UNAUTHORIZED ARREST AS THE
OFFICERS' ACTION IN THE PRESENT CASE IS NO LESS THE "FRUIT" OF OFFICIAL
ILLEGALITY THAN THE MORE COMMON TANGIBLE FRUITS OF THE UNWARRANTED
INTRUSION.  (FN11)  SEE NUESLEIN V. DISTRICT OF COLUMBIA, 115 F.2D
690.  NOR DO THE POLICIES UNDERLYING THE EXCLUSIONARY RULE INVITE ANY
LOGICAL DISTINCTION BETWEEN PHYSICAL AND VERBAL EVIDENCE.  EITHER IN
TERMS OF DETERRING LAWLESS CONDUCT BY FEDERAL OFFICERS, REA V. UNITED
STATES, 350 U.S. 214, OR OF CLOSING THE DOORS OF THE FEDERAL COURTS TO
ANY USE OF EVIDENCE UNCONSTITUTIONALLY OBTAINED, ELKINS V. UNITED
STATES, 364 U.S. 206, THE DANGER IN RELAXING THE EXCLUSIONARY RULES IN
THE CASE OF VERBAL EVIDENCE WOULD SEEM TOO GREAT TO WARRANT INTRODUCING
SUCH A DISTINCTION. 

THE GOVERNMENT ARGUES THAT TOY'S STATEMENTS TO THE OFFICERS IN HIS
BEDROOM, ALTHOUGH CLOSELY CONSEQUENT UPON THE INVASION WHICH WE HOLD
UNLAWFUL, WERE NEVERTHELESS ADMISSIBLE BECAUSE THEY RESULTED FROM "AN
INTERVENING INDEPENDENT ACT OF A FREE WILL."  THIS CONTENTION, HOWEVER,
TAKES INSUFFICIENT ACCOUNT OF THE CIRCUMSTANCES.  SIX OR SEVEN OFFICERS
HAD BROKEN THE DOOR AND FOLLOWED ON TOY'S HEELS INTO THE BEDROOM WHERE
HIS WIFE AND CHILD WERE SLEEPING.  HE HAD BEEN ALMOST IMMEDIATELY
HANDCUFFED AND ARRESTED.  UNDER SUCH CIRCUMSTANCES IT IS UNREASONABLE
TO INFER THAT TOY'S RESPONSE WAS SUFFICIENTLY AN ACT OF FREE WILL TO
PURGE THE PRIMARY TAINT OF THE UNLAWFUL INVASION.  (FN12) 

THE GOVERNMENT ALSO CONTENDS THAT TOY'S DECLARATIONS SHOULD BE
ADMISSIBLE BECAUSE THEY WERE OSTENSIBLY EXCULPATORY RATHER THAN
INCRIMINATING.  THERE ARE TWO ANSWERS TO THIS ARGUMENT.  FIRST, THE
STATEMENTS SOON TURNED OUT TO BE INCRIMINATING, FOR THEY LED DIRECTLY
TO THE EVIDENCE WHICH IMPLICATED TOY.  SECOND, WHEN CIRCUMSTANCES ARE
SHOWN SUCH AS THOSE WHICH INDUCED THESE DECLARATIONS, IT IS IMMATERIAL
WHETHER THE DECLARATIONS BE TERMED "EXCULPATORY."  (FN13)  THUS WE FIND
NO SUBSTANTIAL REASON TO OMIT TOY'S DECLARATIONS FROM THE PROTECTION OF
THE EXCLUSIONARY RULE. 

                                            III. 

WE NOW CONSIDER WHETHER THE EXCLUSION OF TOY'S DECLARATIONS REQUIRES
ALSO THE EXCLUSION OF THE NARCOTICS TAKEN FROM YEE, TO WHICH THOSE
DECLARATIONS LED THE POLICE.  THE PROSECUTOR CANDIDLY TOLD THE TRIAL
COURT THAT "WE WOULDN'T HAVE FOUND THOSE DRUGS EXCEPT THAT MR. TOY
HELPED US TO."  HENCE THIS IS NOT THE CASE ENVISIONED BY THIS COURT
WHERE THE EXCLUSIONARY RULE HAS NO APPLICATION BECAUSE THE GOVERNMENT
LEARNED OF THE EVIDENCE "FROM AN INDEPENDENT SOURCE," SILVERTHORNE
LUMBER CO. V. UNITED STATES, 251 U.S. 385, 392; NOR IS THIS A CASE IN
WHICH THE CONNECTION BETWEEN THE LAWLESS CONDUCT OF THE POLICE AND THE
DISCOVERY OF THE CHALLENGED EVIDENCE HAS "BECOME SO ATTENUATED AS TO
DISSIPATE THE TAINT."  NARDONE V. UNITED STATES, 308 U.S. 338, 341.  WE
NEED NOT HOLD THAT ALL EVIDENCE IS "FRUIT OF THE POISONOUS TREE" SIMPLY
BECAUSE IT WOULD NOT HAVE COME TO LIGHT BUT FOR THE ILLEGAL ACTIONS OF
THE POLICE.  RATHER, THE MORE APT QUESTION IN SUCH A CASE IS "WHETHER,
GRANTING ESTABLISHMENT OF THE PRIMARY ILLEGALITY, THE EVIDENCE TO WHICH
INSTANT OBJECTION IS MADE HAS BEEN COME AT BY EXPLOITATION OF THAT
ILLEGALITY OR INSTEAD BY MEANS SUFFICIENTLY DISTINGUISHABLE TO BE
PURGED OF THE PRIMARY TAINT."  MAGUIRE, EVIDENCE OF GUILT, 221 (1959). 
WE THINK IT CLEAR THAT THE NARCOTICS WERE "COME AT BY THE EXPLOITATION
OF THAT ILLEGALITY" AND HENCE THAT THEY MAY NOT BE USED AGAINST TOY. 

                                             IV. 

IT REMAINS ONLY TO CONSIDER TOY'S UNSIGNED STATEMENT.  WE NEED NOT
DECIDE WHETHER, IN LIGHT OF THE FACT THAT TOY WAS FREE ON HIS OWN
RECOGNIZANCE WHEN HE MADE THE STATEMENT, THAT STATEMENT WAS A FRUIT OF
THE ILLEGAL ARREST.  CF. UNITED STATES V. BAYER, 331 U.S. 532.  SINCE
WE HAVE CONCLUDED THAT HIS DECLARATIONS IN THE BEDROOM AND THE
NARCOTICS SURRENDERED BY YEE SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE
AGAINST HIM, THE ONLY PROOFS REMAINING TO SUSTAIN HIS CONVICTION ARE
HIS AND WONG SUN'S UNSIGNED STATEMENTS.  WITHOUT SCRUTINIZING THE
CONTENTS OF TOY'S AMBIGUOUS RECITALS, WE CONCLUDE THAT NO REFERENCE TO
TOY IN WONG SUN'S STATEMENT CONSTITUTES ADMISSIBLE EVIDENCE
CORROBORATING ANY ADMISSION BY TOY.  WE ARRIVE AT THIS CONCLUSION UPON
TWO CLEAR LINES OF DECISIONS WHICH CONVERGE TO REQUIRE IT.  ONE LINE OF
OUR DECISIONS ESTABLISHES THAT CRIMINAL CONFESSIONS AND ADMISSIONS OF
GUILT REQUIRE EXTRINSIC CORROBORATION; THE OTHER LINE OF PRECEDENTS
HOLDS THAT AN OUT-OF-COURT DECLARATION MADE AFTER ARREST MAY NOT BE
USED AT TRIAL AGAINST ONE OF THE DECLARANT'S PARTNERS IN CRIME. 

IT IS A SETTLED PRINCIPLE OF THE ADMINISTRATION OF CRIMINAL JUSTICE
IN THE FEDERAL COURTS THAT A CONVICTION MUST REST UPON FIRMER GROUND
THAN THE UNCORROBORATED ADMISSION OR CONFESSION OF THE ACCUSED.  (FN14)
WE OBSERVED IN SMITH V. UNITED STATES, 348 U.S. 147, 153, THAT THE
REQUIREMENT OF CORROBORATION IS ROOTED IN "A LONG HISTORY OF JUDICIAL
EXPERIENCE WITH CONFESSIONS AND IN THE REALIZATION THAT SOUND LAW
ENFORCEMENT REQUIRES POLICE INVESTIGATIONS WHICH EXTEND BEYOND THE
WORDS OF THE ACCUSED."  IN OPPER V. UNITED STATES, 348 U.S. 84, 89-90,
WE ELABORATED THE REASONS FOR THE REQUIREMENT: 

"IN OUR COUNTRY THE DOUBT PERSISTS THAT THE ZEAL OF THE AGENCIES OF
PROSECUTION TO PROTECT THE PEACE, THE SELF-INTEREST OF THE ACCOMPLICE,
THE MALICIOUSNESS OF AN ENEMY OR THE ABERRATION OR WEAKNESS OF THE
ACCUSED UNDER THE STRAIN OF SUSPICION MAY TINGE OR WARP THE FACTS OF
THE CONFESSION.   ADMISSIONS, RETOLD AT A TRIAL, ARE MUCH LIKE HEARSAY,
THAT IS, STATEMENTS NOT MADE AT THE PENDING TRIAL.  THEY HAD NEITHER
THE COMPULSION OF THE OATH NOR THE TEST OF CROSS-EXAMINATION." 

IT IS TRUE THAT IN SMITH V. UNITED STATES, SUPRA, WE HELD THAT
ALTHOUGH "CORROBORATION IS NECESSARY FOR ALL ELEMENTS OF THE OFFENSE
ESTABLISHED BY ADMISSIONS ALONE," EXTRINSIC PROOF WAS SUFFICIENT WHICH
"MERELY FORTIFIES THE TRUTH OF THE CONFESSION, WITHOUT INDEPENDENTLY
ESTABLISHING THE CRIME CHARGED  ...  ."  348 U.S., AT 156.  (FN15)
HOWEVER, WONG SUN'S UNSIGNED CONFESSION DOES NOT FURNISH COMPETENT
CORROBORATIVE EVIDENCE.  THE SECOND GOVERNING PRINCIPLE, LIKEWISE WELL
SETTLED IN OUR DECISIONS, IS THAT AN OUT-OF-COURT DECLARATION MADE
AFTER ARREST MAY NOT BE USED AT TRIAL AGAINST ONE OF THE DECLARANT'S
PARTNERS IN CRIME.  WHILE SUCH A STATEMENT IS "ADMISSIBLE AGAINST THE
OTHERS WHERE IT IS IN FURTHERANCE OF THE CRIMINAL UNDERTAKING  ...  ALL
SUCH RESPONSIBILITY IS AT AN END WHEN THE CONSPIRACY ENDS."  FISWICK V.
UNITED STATES, 329 U.S. 211, 217.  WE HAVE CONSISTENTLY REFUSED TO
BROADEN THAT VERY NARROW EXCEPTION TO THE TRADITIONAL HEARSAY RULE
WHICH ADMITS STATEMENTS OF A CODEFENDANT MADE IN FURTHERANCE OF A
CONSPIRACY OR JOINT UNDERTAKING.  (FN16)  SEE KRULEWITCH V. UNITED
STATES, 336 U.S. 440, 443-445.  AND WHERE POSTCONSPIRACY DECLARATIONS
HAVE BEEN ADMITTED, WE HAVE CAREFULLY ASCERTAINED THAT LIMITING
INSTRUCTIONS KEPT THE JURY FROM CONSIDERING THE CONTENTS WITH RESPECT
TO THE GUILT OF ANYONE BUT THE DECLARANT.  LUTWAK V. UNITED STATES, 344
U.S. 604, 618-619; DELLI PAOLI V. UNITED STATES, 352 U.S. 232, 236
237.  WE HAVE NEVER RULED SQUARELY ON THE QUESTION PRESENTED HERE,
WHETHER A CODEFENDANT'S STATEMENT MIGHT SERVE TO CORROBORATE EVEN WHERE
IT WILL NOT SUFFICE TO CONVICT.  (FN17)  WE SEE NO WARRANT FOR A
DIFFERENT RESULT SO LONG AS THE RULE WHICH REGULATES THE USE OF OUT-OF
COURT STATEMENTS IS ONE OF ADMISSIBILITY, RATHER THAN SIMPLY OF WEIGHT,
OF THE EVIDENCE.  THE IMPORT OF OUR PREVIOUS HOLDINGS IS THAT A CO
CONSPIRATOR'S HEARSAY STATEMENTS MAY BE ADMITTED AGAINST THE ACCUSED
FOR NO PURPOSE WHATEVER, UNLESS MADE DURING AND IN FURTHERANCE OF THE
CONSPIRACY.  THUS AS TO TOY THE ONLY POSSIBLE SOURCE OF CORROBORATION
IS REMOVED AND HIS CONVICTION MUST BE SET ASIDE FOR LACK OF COMPETENT
EVIDENCE TO SUPPORT IT.

                               V. 

WE TURN NOW TO THE CASE OF THE OTHER PETITIONER, WONG SUN.  WE HAVE
NO OCCASION TO DISAGREE WITH THE FINDING OF THE COURT OF APPEALS THAT
HIS ARREST, ALSO, WAS WITHOUT PROBABLE CAUSE OR REASONABLE GROUNDS.  AT
ALL EVENTS NO EVIDENTIARY CONSEQUENCES TURN UPON THAT QUESTION.  FOR
WONG SUN'S UNSIGNED CONFESSION WAS NOT THE FRUIT OF THAT ARREST, AND
WAS THEREFORE PROPERLY ADMITTED AT TRIAL.  ON THE EVIDENCE THAT WONG
SUN HAD BEEN RELEASED ON HIS OWN RECOGNIZANCE AFTER A LAWFUL
ARRAIGNMENT, AND HAD RETURNED VOLUNTARILY SEVERAL DAYS LATER TO MAKE
THE STATEMENT, WE HOLD THAT THE CONNECTION BETWEEN THE ARREST AND THE
STATEMENT HAD "BECOME SO ATTENUATED AS TO DISSIPATE THE TAINT." 
NARDONE V. UNITED STATES, 308 U.S. 338, 341.  THE FACT THAT THE
STATEMENT WAS UNSIGNED, WHATEVER BEARING THIS MAY HAVE UPON ITS WEIGHT
AND CREDIBILITY, DOES NOT RENDER IT INADMISSIBLE; WONG SUN UNDERSTOOD
AND ADOPTED ITS SUBSTANCE, THOUGH HE COULD NOT COMPREHEND THE ENGLISH
WORDS.  THE PETITIONER HAS NEVER SUGGESTED ANY IMPROPRIETY IN THE
INTERROGATION ITSELF WHICH WOULD REQUIRE THE EXCLUSION OF THIS
STATEMENT. 

WE MUST THEN CONSIDER THE ADMISSIBILITY OF THE NARCOTICS SURRENDERED
BY YEE.  OUR HOLDING, SUPRA, THAT THIS OUNCE OF HEROIN WAS INADMISSIBLE
AGAINST TOY DOES NOT COMPEL A LIKE RESULT WITH RESPECT TO WONG SUN. 
THE EXCLUSION OF THE NARCOTICS AS TO TOY WAS REQUIRED SOLELY BY THEIR
TAINTED RELATIONSHIP TO INFORMATION UNLAWFULLY OBTAINED FROM TOY, AND
NOT BY ANY OFFICIAL IMPROPRIETY CONNECTED WITH THEIR SURRENDER BY YEE. 
THE SEIZURE OF THIS HEROIN INVADED NO RIGHT OF PRIVACY OF PERSON OR
PREMISES WHICH WOULD ENTITLE WONG SUN TO OBJECT TO ITS USE AT HIS
TRIAL.  CF. GOLDSTEIN V. UNITED STATES, 316 U.S. 114.  (FN18)

HOWEVER, FOR THE REASONS THAT WONG SUN'S STATEMENT WAS INCOMPETENT TO
CORROBORATE TOY'S ADMISSIONS CONTAINED IN TOY'S OWN STATEMENT, ANY
REFERENCES TO WONG SUN IN TOY'S STATEMENT WERE INCOMPETENT TO
CORROBORATE WONG SUN'S ADMISSIONS.  THUS, THE ONLY COMPETENT SOURCE OF
CORROBORATION FOR WONG SUN'S STATEMENT WAS THE HEROIN ITSELF.  WE
CANNOT BE CERTAIN, HOWEVER, ON THIS STATE OF THE RECORD, THAT THE TRIAL
JUDGE MAY NOT ALSO HAVE CONSIDERED THE CONTENTS OF TOY'S STATEMENT AS A
SOURCE OF CORROBORATION.  PETITIONERS RAISED AS ONE GROUND OF OBJECTION
TO THE INTRODUCTION OF THE STATEMENTS THE CLAIM THAT EACH STATEMENT,
"EVEN IF IT WERE A PURPORTED ADMISSION OR CONFESSION OR DECLARATION
AGAINST INTEREST OF A DEFENDANT  ...  WOULD NOT BE BINDING UPON THE
OTHER DEFENDANT."  THE TRIAL JUDGE, IN ALLOWING THE STATEMENTS IN,
APPARENTLY OVERRULED ALL OF PETITIONERS' OBJECTIONS, INCLUDING THIS
ONE.  THUS WE PRESUME THAT HE CONSIDERED ALL PORTIONS OF BOTH
STATEMENTS AS BEARING UPON THE GUILT OF BOTH PETITIONERS. 

WE INTIMATE NO VIEW ONE WAY OR THE OTHER AS TO WHETHER THE TRIAL
JUDGE MIGHT HAVE FOUND IN THE NARCOTICS ALONE SUFFICIENT EVIDENCE TO
CORROBORATE WONG SUN'S ADMISSIONS THAT HE DELIVERED HEROIN TO YEE AND
SMOKED HEROIN AT YEE'S HOUSE AROUND THE DATE IN QUESTION.  BUT BECAUSE
HE MIGHT, AS THE FACTFINDER, HAVE FOUND INSUFFICIENT CORROBORATION FROM
THE NARCOTICS ALONE, WE CANNOT BE SURE THAT THE SCALES WERE NOT TIPPED
IN FAVOR OF CONVICTION BY RELIANCE UPON THE INADMISSIBLE TOY
STATEMENT.  THIS IS PARTICULARLY IMPORTANT BECAUSE OF THE NATURE OF THE
OFFENSE INVOLVED HERE. 

SURELY, UNDER THE NARCOTICS STATUTE, THE DISCOVERY OF HEROIN RAISES A
PRESUMPTION THAT SOMEONE - GENERALLY THE POSSESSOR - VIOLATED THE LAW. 
AS TO HIM, ONCE POSSESSION ALONE IS PROVED, THE OTHER ELEMENTS OF THE
OFFENSE - TRANSPORTATION AND CONCEALMENT WITH KNOWLEDGE OF THE ILLEGAL
IMPORTATION OF THE DRUG - NEED NOT BE SEPARATELY DEMONSTRATED, MUCH
LESS CORROBORATED.  21 U.S.C. SEC. 174.  THUS PARTICULAR CARE OUGHT TO
BE TAKEN IN THIS AREA, WHEN THE CRUCIAL ELEMENT OF THE ACCUSED'S
POSSESSION IS PROVED SOLELY BY HIS OWN ADMISSIONS, THAT THE REQUISITE
CORROBORATION BE FOUND AMONG THE EVIDENCE WHICH IS PROPERLY BEFORE THE
TRIER OF FACTS.  WE THEREFORE HOLD THAT PETITIONER WONG SUN IS ALSO
ENTITLED TO A NEW TRIAL. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  21 U.S.C. SEC. 174: 

"WHOEVER FRAUDULENTLY OR KNOWINGLY IMPORTS OR BRINGS ANY NARCOTIC
DRUG INTO THE UNITED STATES OR ANY TERRITORY UNDER ITS CONTROL OR
JURISDICTION, CONTRARY TO LAW, OR RECEIVES, CONCEALS, BUYS, SELLS, OR
IN ANY MANNER FACILITATES THE TRANSPORTATION, CONCEALMENT, OR SALE OF
ANY SUCH NARCOTIC DRUG AFTER BEING IMPORTED OR BROUGHT IN, KNOWING THE
SAME TO HAVE BEEN IMPORTED OR BROUGHT INTO THE UNITED STATES CONTRARY
TO LAW, OR CONSPIRES TO COMMIT ANY OF SUCH ACTS IN VIOLATION OF THE
LAWS OF THE UNITED STATES, SHALL BE IMPRISONED NOT LESS THAN FIVE OR
MORE THAN TWENTY YEARS AND, IN ADDITION, MAY BE FINED NOT MORE THAN
$20,000.  FOR A SECOND OR SUBSEQUENT OFFENSE (AS DETERMINED UNDER
SHALL BE IMPRISONED NOT LESS THAN TEN OR MORE THAN FORTY YEARS AND, IN
ADDITION, MAY BE FINED NOT MORE THAN $20,000. 

"WHENEVER ON TRIAL FOR A VIOLATION OF THIS SECTION THE DEFENDANT IS
SHOWN TO HAVE OR TO HAVE HAD POSSESSION OF THE NARCOTIC DRUG, SUCH
POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION
UNLESS THE DEFENDANT EXPLAINS THE POSSESSION TO THE SATISFACTION OF THE
JURY." 

FN2  A "PIECE" IS APPROXIMATELY ONE OUNCE. 

FN3  THE RECORD OF THE ARRAIGNMENT PROCEEDINGS RECITES THAT ARREST
WARRANTS WERE ISSUED, ON THE ARRAIGNMENT DATES, FOR THE ARREST OF BOTH
PETITIONERS AND YEE.  IT WAS CONCEDED IN THE TRIAL COURT, HOWEVER, THAT
NO ARREST WARRANTS WERE OUTSTANDING AT THE TIME OF THE ACTUAL ARRESTS
ON JUNE 4. 

THE RECORD ALSO STATES THAT BOND WAS INITIALLY FIXED FOR EACH OF THE
PETITIONERS AND FOR YEE IN THE AMOUNT OF $5,000, ON THE RECOMMENDATION
OF THE UNITED STATES ATTORNEY.  LATER ON THE RESPECTIVE ARRAIGNMENT
DAYS, AGAIN ON MOTION OF THE UNITED STATES ATTORNEY, IT WAS ORDERED
THAT EACH OF THE THREE BE RELEASED ON HIS OWN RECOGNIZANCE. 

FN4  BECAUSE NEITHER STATEMENT WAS EVER SIGNED, THE BLANKS IN WHICH
THE DATES WERE TO HAVE BEEN INSERTED WERE NEVER FILLED IN.  THE HEADING
OF TOY'S STATEMENT SUGGESTS THAT IT WAS MADE ON JUNE 5, ALTHOUGH AGENT
WILLIAM WONG AT THE TRIAL SUGGESTED HE HAD ONLY TALKED INFORMALLY WITH
TOY ON THAT DATE, THE FORMAL STATEMENT NOT BEING MADE UNTIL JUNE 9. 
THE AGENT ALSO TESTIFIED THAT WONG SUN'S STATEMENT WAS MADE JUNE 9,
ALTHOUGH A RUBBER-STAMP DATE BENEATH THE AGENT'S OWN SIGNATURE AT THE
FOOT OF THE STATEMENT READS, "JUNE 15, 1959." 

FN5  THE FULL TEXTS OF BOTH STATEMENTS ARE SET FORTH IN AN APPENDIX
TO THIS OPINION. 

FN6  26 U.S.C. SEC. 7607: 

"THE COMMISSIONER, DEPUTY COMMISSIONER, ASSISTANT TO THE
COMMISSIONER, AND AGENTS, OF THE BUREAU OF NARCOTICS OF THE DEPARTMENT
OF THE TREASURY, AND OFFICERS OF THE CUSTOMS (AS DEFINED IN SECTION
401(1) OF THE TARIFF ACT OF 1930, AS AMENDED; 19 U.S.C., SEC. 1401(1)),
MAY: 

"(1)  CARRY FIREARMS, EXECUTE AND SERVE SEARCH WARRANTS AND ARREST
WARRANTS, AND SERVE SUBPENAS AND SUMMONSES ISSUED UNDER THE AUTHORITY
OF THE UNITED STATES, AND: 

"(2)  MAKE ARRESTS WITHOUT WARRANT FOR VIOLATIONS OF ANY LAW OF THE
UNITED STATES RELATING TO NARCOTIC DRUGS (AS DEFINED IN SECTION 4731)
OR MARIHUANA (AS DEFINED IN SECTION 4761) WHERE THE VIOLATION IS
COMMITTED IN THE PRESENCE OF THE PERSON MAKING THE ARREST OR WHERE SUCH
PERSON HAS REASONABLE GROUNDS TO BELIEVE THAT THE PERSON TO BE ARRESTED
HAS COMMITTED OR IS COMMITTING SUCH VIOLATION." 

THE TERMS "PROBABLE CAUSE" FOR PURPOSES OF THE FOURTH AMENDMENT AND
"REASONABLE GROUNDS" AS USED IN THE STATUTE, MEAN SUBSTANTIALLY THE
SAME.  DRAPER V. UNITED STATES, 358 U.S. 307, 310, N. 3; UNITED STATES
V. WALKER, 246 F.2D 519, 526. 

FN7  SEE GIORDENELLO V. UNITED STATES, 357 U.S. 480, 485-487; JOHNSON
V. UNITED STATES, 333 U.S. 10, 16-17.  SEE GENERALLY WILGUS, ARREST
WITHOUT A WARRANT, 22 MICH. L. REV. 541, 673, 693-701 (1924). 

FN8  OUR DISCUSSION IMPLIES NO VIEW WHETHER A SEARCH WARRANT SHOULD
BE OBTAINED WHERE A SEARCH IS CONDUCTED INCIDENT TO A VALID ARREST, CF.
UNITED STATES V. RABINOWITZ, 339 U.S. 56, FOR NOTHING IN THIS CASE
TURNS ON THE PRESENCE OR ABSENCE OF A SEARCH WARRANT.  SINCE THE
OFFICERS HAD OBTAINED AN ARREST WARRANT IN RABINOWITZ, THE QUESTION
BEFORE US HERE WAS NOT THERE PRESENTED.  AS TO THE QUESTION BEFORE US,
SEE WRIGHTSON V. UNITED STATES, 222 F.2D 556, 559-560: 

"BUT, IF OFFICERS CAN ARREST WITHOUT A WARRANT AND NEVER BE REQUIRED
TO DISCLOSE THE FACTS UPON WHICH THEY BASED THEIR BELIEF OF PROBABLE
CAUSE - IF, IN OTHER WORDS, THEY HAVE AN UNTOUCHABLE POWER TO ARREST
WITHOUT A WARRANT, - WHY WOULD THEY EVER BOTHER TO GET A WARRANT?  AND
THE SAME OBVIOUS CONCLUSION FOLLOWS IF THE COURTS, WHEN AN ARREST IS
ATTACKED AS ILLEGAL, WILL ASSUME, WITHOUT FACTS, THAT AN ARREST WITHOUT
A WARRANT WAS FOR PROBABLE CAUSE.  TO STRIKE DOWN ALL FACTUAL
REQUIREMENTS IN RESPECT TO PROBABLE CAUSE FOR ARRESTS WITHOUT A
WARRANT, WHILE MAINTAINING THEM FOR THE ISSUANCE OF A WARRANT, WOULD BE
TO BLAST ONE OF THE SUPPORT COLUMNS OF JUSTICE BY LAW." 

FN9  WE NOTED IN GIORDENELLO THAT RULES 3 AND 4 OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE PROVIDE THAT AN ARREST WARRANT SHALL ISSUE ONLY
UPON A SWORN COMPLAINT SETTING FORTH "THE ESSENTIAL FACTS CONSTITUTING
THE OFFENSE CHARGED," AND SHOWING "THAT THERE IS PROBABLE CAUSE TO
BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED AND THAT THE DEFENDANT HAS
COMMITTED IT  ...  ."  THE FOURTH AMENDMENT, FROM WHICH THE
REQUIREMENTS OF THE RULES DERIVE, PROVIDES THAT "  ...  NO WARRANTS
SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION,
AND PARTICULARLY DESCRIBING  ...  THE PERSONS OR THINGS TO BE SEIZED." 
THE REQUIREMENT APPLIES BOTH TO ARREST AND SEARCH WARRANTS.  A
DESCRIPTION OF A SUSPECT MERELY AS "BLACKIE TOY," OPERATOR OF A LAUNDRY
SOMEWHERE ON LEAVENWORTH STREET, HARDLY IS INFORMATION "PARTICULARLY
DESCRIBING  ...  THE PERSON  ...  TO BE SEIZED."  SUCH INFORMATION IS
NO BETTER THAN THE WHOLESALE OR "DRAGNET" SEARCH WARRANT, WHICH WE HAVE
CONDEMNED.  SEE, E.G., MARRON V. UNITED STATES, 275 U.S. 192, 196; SEE
GENERALLY KAPLAN, SEARCH AND SEIZURE:  A NO-MAN'S LAND IN THE CRIMINAL
LAW, 49 CALIF.  L. REV. 474, 480-482 (1961). 

FN10  ALTHOUGH THE QUESTION PRESENTED HERE IS ONLY WHETHER THE
PETITIONER'S FLIGHT JUSTIFIED AN INFERENCE OF GUILT SUFFICIENT TO
GENERATE PROBABLE CAUSE FOR HIS ARREST, AND NOT WHETHER HIS FLIGHT
WOULD SERVE TO CORROBORATE PROOF OF HIS GUILT AT TRIAL, THE TWO
QUESTIONS ARE INESCAPABLY RELATED.  THUS IT IS RELEVANT TO THE PRESENT
CASE THAT WE HAVE CONSISTENTLY DOUBTED THE PROBATIVE VALUE IN CRIMINAL
TRIALS OF EVIDENCE THAT THE ACCUSED FLED THE SCENE OF AN ACTUAL OR
SUPPOSED CRIME.  IN ALBERTY V. UNITED STATES, 162 U.S. 499, 511, THIS
COURT SAID: 

"  ...  IT IS NOT UNIVERSALLY TRUE THAT A MAN, WHO IS CONSCIOUS THAT
HE HAS DONE A WRONG, 'WILL PURSUE A CERTAIN COURSE NOT IN HARMONY WITH
THE CONDUCT OF A MAN WHO IS CONSCIOUS OF HAVING DONE AN ACT WHICH IS
INNOCENT, RIGHT AND PROPER;' SINCE IT IS A MATTER OF COMMON KNOWLEDGE
THAT MEN WHO ARE ENTIRELY INNOCENT DO SOMETIMES FLY FROM THE SCENE OF A
CRIME THROUGH FEAR OF BEING APPREHENDED AS THE GUILTY PARTIES, OR FROM
AN UNWILLINGNESS TO APPEAR AS WITNESSES.  NOR IS IT TRUE AS AN ACCEPTED
AXIOM OF CRIMINAL LAW THAT 'THE WICKED FLEE WHEN NO MAN PURSUETH, BUT
THE RIGHTEOUS ARE AS BOLD AS A LION.'" 

SEE ALSO HICKORY V. UNITED STATES, 160 U.S. 408; ALLEN V. UNITED
STATES, 164 U.S. 492; STARR V. UNITED STATES, 164 U.S. 627; AND FOR THE
VIEWS OF TWO COURTS OF APPEALS SEE VICK V. UNITED STATES, 216 F.2D 228,
233 (C.A. 5TH CIR.)("ONE MOTIVE IS ABOUT AS LIKELY AS ANOTHER. 
APPELLANT MAY BE GUILTY, BUT HIS CONVICTION CANNOT REST UPON MERE
CONJECTURE AND SUSPICION"); CF. COOPER V. UNITED STATES, 218 F.2D 39,
41 (C.A.D.C. CIR.)("AFTER ALL, INNOCENT PEOPLE CAUGHT IN A WEB OF
CIRCUMSTANCES FREQUENTLY BECOME TERROR-STRICKEN").  BUT CF. UNITED
STATES V. HEITNER, 149 F.2D 105 (C.A.2D CIR.). 

FN11  SEE KAMISAR, ILLEGAL SEARCHES OR SEIZURES AND CONTEMPORANEOUS
INCRIMINATING STATEMENTS: A DIALOGUE ON A NEGLECTED AREA OF CRIMINAL
PROCEDURE, 1961 U. OF ILL. LAW FORUM 78, 84-96.  BUT COMPARE MAGUIRE,
EVIDENCE OF GUILT (1959), 187-190. 

FN12  SEE LORD DEVLIN'S COMMENT:  "IT IS PROBABLE THAT EVEN TODAY,
WHEN THERE IS MUCH LESS IGNORANCE ABOUT THESE MATTERS THAN FORMERLY,
THERE IS STILL A GENERAL BELIEF THAT YOU MUST ANSWER ALL QUESTIONS PUT
TO YOU BY A POLICEMAN, OR AT LEAST THAT IT WILL BE THE WORSE FOR YOU IF
YOU DO NOT."  DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND (1958), 32. 
EVEN IN THE ABSENCE OF SUCH OPPRESSIVE CIRCUMSTANCES, AND WHERE AN
EXCLUSIONARY RULE RESTS PRINCIPALLY ON NONCONSTITUTIONAL GROUNDS, WE
HAVE SOMETIMES REFUSED TO DEFFERENTIATE BETWEEN VOLUNTARY AND
INVOLUNTARY DECLARATIONS.  SEE HOGAN AND SNEE, THE MCNABB-MALLORY RULE:
ITS RISE, RATIONALE AND RESCUE, 47 GEO. L.J. 1, 26-27 (1958).  FOR
ILLUSTRATIVE SITUATIONS WHERE A VOLUNTARY ACT OF THE ACCUSED HAS BEEN
HELD INSUFFICIENT TO CURE THE OTHERWISE UNLAWFUL ACQUISITION OF
EVIDENCE, SEE BYNUM V. UNITED STATES, 262 F.2D 465 (HOLDING
INADMISSIBLE FINGERPRINTS MADE BY DEFENDANT AFTER UNLAWFUL ARREST);
UNITED STATES V. WATSON, 189 F. SUPP. 776 (EXCLUDING NARCOTICS
VOLUNTARILY SURRENDERED BY ACCUSED IN THE COURSE OF AN UNAUTHORIZED
SEARCH).  THE NINTH CIRCUIT COURT OF APPEALS FROM WHICH THE INSTANT
CASE COMES HAS RECOGNIZED IN AN ANALOGOUS CONTEXT, THAT "ALL
DECLARATIONS AND STATEMENTS UNDER THE COMPULSION OF THE THINGS SO
SEIZED, ARE AFFECTED BY THE VICE OF PRIMARY ILLEGALITY  ...  ." 
TAKAHASHI V. UNITED STATES, 143 F.2D 118, 122. 

FN13  MOREOVER, WE HELD IN OPPER V. UNITED STATES, 348 U.S. 84, 92,
THAT EVEN WHERE EXCULPATORY STATEMENTS ARE VOLUNTARY AND THUS CLEARLY
ADMISSIBLE, THEY REQUIRE AT LEAST THE DEGREE OF CORROBORATION REQUIRED
OF INCRIMINATING STATEMENTS. 

FN14  FOR THE HISTORY AND DEVELOPMENT OF THE CORROBORATION
REQUIREMENT, SEE 7 WIGMORE, EVIDENCE (3D ED. 1940), SECS. 2070-2071;
NOTE, PROOF OF THE CORPUS DELICTI ALIUNDE THE DEFENDANT'S CONFESSION,
103 U. OF PA. L. REV. 638-649 (1955).  FOR THE PRESENT SCOPE AND
APPLICATION OF THE RULE, SEE 2 UNDERHILL, CRIMINAL EVIDENCE (5TH ED.
1956), SECS. 402-403.  FOR A COMPREHENSIVE COLLECTION OF CASES, SEE
ANNOT., 45 A.L.R.2D 1316 (1956).    FN15  WHERE THE CRIME INVOLVES
PHYSICAL DAMAGE TO PERSON OR PROPERTY, THE PROSECUTION MUST GENERALLY
SHOW THAT THE INJURY FOR WHICH THE ACCUSED CONFESSES RESPONSIBILITY DID
IN FACT OCCUR, AND THAT SOME PERSON WAS CRIMINALLY CULPABLE.  A NOTABLE
EXAMPLE IS THE PRINCIPLE THAT AN ADMISSION OF HOMICIDE MUST BE
CORROBORATED BY TANGIBLE EVIDENCE OF THE DEATH OF THE SUPPOSED VICTIM. 
SEE 7 WIGMORE, EVIDENCE (3D ED. 1940), SEC. 2072, N. 5.  THERE NEED IN
SUCH A CASE BE NO LINK, OUTSIDE THE CONFESSION, BETWEEN THE INJURY AND
THE ACCUSED WHO ADMITS HAVING INFLICTED IT.  BUT WHERE THE CRIME
INVOLVES NO TANGIBLE CORPUS DELICTI, WE HAVE SAID THAT "THE
CORROBORATIVE EVIDENCE MUST IMPLICATE THE ACCUSED IN ORDER TO SHOW THAT
A CRIME HAS BEEN COMMITTED."  348 U.S., AT 154.  FINALLY, WE HAVE SAID
THAT ONE UNCORROBORATED ADMISSION BY THE ACCUSED DOES NOT, STANDING
ALONE, CORROBORATE AN UNVERIFIED CONFESSION.  UNITED STATES V.
CALDERON, 348 U.S. 160, 165. 

FN16  SEE DEVELOPMENTS IN THE LAW - CRIMINAL CONSPIRACY, 72 HARV. L.
REV. 922, 989-990 (1959). 

FN17  CF. WILLIAMS, THE PROOF OF GUILT (1958), 135:  "EVEN WHERE  ...
THE EVIDENCE OF AN ACCOMPLICE BECOMES ADMISSIBLE AGAINST HIS FELLOWS,
IT REMAINS SUSPECT EVIDENCE, BECAUSE OF THE TAINTED SOURCE FROM WHICH
IT COMES.  THE ACCOMPLICE MAY NO LONGER HAVE ANYTHING TO FEAR OR HOPE
FROM THE WAY IN WHICH HE GIVES HIS EVIDENCE; YET HE MAY MISTAKENLY
ENTERTAIN SUCH A FEAR OR HOPE, OR HE MAY WISH BY HIS EVIDENCE AGAINST
OTHERS TO GRATIFY SOME SPITE AGAINST THEM." 

FN18  THIS CASE IS NOT LIKE JONES V. UNITED STATES, 362 U.S. 257,
WHERE THE PERSON CHALLENGING THE SEIZURE OF EVIDENCE WAS LAWFULLY ON
THE PREMISES AT THE TIME OF THE SEARCH.  NOR IS IT LIKE CHAPMAN V.
UNITED STATES, 365 U.S. 610, WHERE WE HELD THAT A LANDLORD COULD NOT
LAWFULLY CONSENT TO A SEARCH OF HIS TENANT'S PREMISES.  SEE GENERALLY
EDWARDS, STANDING TO SUPPRESS UNREASONABLY SEIZED EVIDENCE, 47 N.W.U.L.
REV. 471 (1952). 

FOR CONCURRING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 497. 

FOR DISSENTING OPINION OF MR. JUSTICE CLARK, SEE POST, P. 498. 

                              APPENDIX TO OPINION OF THE COURT. 

                             STATEMENT OF JAMES WAH TOY TAKEN ON

                          JUNE 5, 1959, CONCERNING HIS KNOWLEDGE OF

  WONG SUN'S NARCOTIC TRAFFICKING. 

I HAVE KNOWN WONG SUN FOR ABOUT 3 MONTHS.  I KNOW HIM AS SEA DOG
WHICH IS WHAT EVERYONE CALLS HIM.   I FIRST MET HIM IN MARYSVILLE,
CALIFORNIA, DURING A CHINESE HOLIDAY.  I DROVE HIM BACK TO SAN
FRANCISCO ON THAT OCCASION.  SOMETIMES HE ASKS ME TO DRIVE HIM HOME AND
TO DIFFERENT PLACES IN SAN FRANCISCO. 

SOMETIME DURING APRIL OR MAY OF THIS YEAR, HE ASKED ME TO DRIVE HIM
OUT TO JOHNNY YEE'S HOUSE, AT 11TH AND BALBOA STREETS.  HE ASKED ME TO
CALL JOHNNY AND TELL HIM WE WERE COMING.  WHEN WE GOT THERE WE WENT
INTO THE HOUSE AND WONG SUN TOOK A PAPER PACKAGE OUT OF HIS POCKET AND
PUT IT ON THE TABLE.  THEN BOTH WONG SUN AND JOHNNY YEE OPENED THE
PACKAGE.  I DON'T KNOW HOW MUCH HEROIN WAS IN IT, BUT I KNOW IT WAS
MORE THAN 10 SPOONS.  I ASKED THEM IF I COULD HAVE SOME FOR MYSELF AND
THEY SAID YES.  I TOOK A LITTLE BIT AND WENT ACROSS THE ROOM AND SMOKED
IT IN A CIGARETTE. 

WONG SUN AND JOHNNY YEE TALKED FOR ABOUT 10 OR 15 MINUTES, BUT THEY
WERE TALKING IN LOW TONES SO THAT I COULD NOT HEAR WHAT THEY WERE
SAYING.  I DIDN'T SEE ANY MONEY CHANGE HANDS, BECAUSE I WASN'T PAYING
TOO MUCH ATTENTION.  WONG SUN AND I THEN LEFT THE HOUSE AND DROVE.  I
DROVE WONG SUN TO HIS HOME AND HE GAVE ME $15.00.  HE SAID THE MONEY
WAS FOR DRIVING HIM OUT THERE. 

I HAVE DRIVEN WONG SUN OUT TO JOHNNY YEE'S HOUSE ABOUT 5 TIMES
ALTOGETHER.  EACH TIME WONG SUN GAVE ME $10 OR $15 FOR DOING IT AND
ALSO, JOHNNY GAVE ME A LITTLE HEROIN - ENOUGH TO PUT IN 3 OR 4
CIGARETTES.  THE LAST TIME I DROVE WONG SUN OUT TO YEE'S HOUSE WAS LAST
TUESDAY, MAY 26, 1959.  ON WEDNESDAY NIGHT JUNE 3, 1959, AT ABOUT 10:00
P.M., I CALLED JOHNNY YEE AND TOLD HIM THAT "I'M COMING OUT PRETTY SOON
- I DON'T HAVE ANYTHING."  HE SAID OKAY, SO I DROVE OUT THERE.  WHEN I
GOT THERE I WENT IN THE HOUSE AND JOHNNY GAVE ME A PAPER OF HEROIN. 
THE BINDLE HAD ABOUT ENOUGH FOR 5 OR 6 CIGARETTES.  I DIDN'T GIVE HIM
ANY MONEY AND HE DIDN'T ASK FOR ANY.  HE GIVES IT TO ME JUST OUT OF
FRIENDSHIP.  HE HAS GIVEN ME HEROIN LIKE THIS QUITE A FEW TIMES.  I
DON'T REMEMBER HOW MANY TIMES.  I HAVE KNOWN HOM WEI ABOUT 2 OR 3 YEARS
BUT I HAVE NEVER DEALT IN NARCOTICS WITH HIM.  I HAVE KNOWN ED FONG
ABOUT 1 YEAR AND I HAVE NEVER DEALT IN NARCOTICS WITH HIM, EITHER.  I
HAVE HEARD PEOPLE THAT I KNOW IN THE HOP SING TONG CLUB TALK ABOUT HOM
WEI DEALING IN NARCOTICS BUT NOTHING ABOUT ED FONG.  I DO NOT KNOW JOHN
MOW LIM OR BILL FONG.  THE ONLY CONNECTION I HAVE NOW IS JOHNNY YEE. 

I HAVE CAREFULLY READ THE FOREGOING STATEMENT, WHICH WAS MADE OF MY
OWN FREE WILL, WITHOUT PROMISE OF REWARD OR IMMUNITY AND NOT UNDER
DURESS.  I HAVE BEEN GIVEN AMPLE OPPORTUNITY TO MAKE CORRECTIONS HAVE
INITIALED OR SIGNED EACH PAGE AS EVIDENCE THEREOF AND HEREBY STATE THAT
THIS STATEMENT IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. 

                                                     JAMES WAH TOY 

     *         *         *         *         * 

JAMES WAH TOY DID NOT WISH TO SIGN THIS STATEMENT AT THIS TIME.  HE
STATED HE MAY CHANGE HIS MIND AT A LATER DATE.  HOWEVER, I READ THIS
STATEMENT TO HIM AND IN ADDITION HE READ IT ALSO AND STATED THAT THE
CONTENTS THEREOF WERE TRUE TO THE BEST OF HIS KNOWLEDGE.  CORRECTIONS
MADE WERE BY JAMES WAH TOY WITHOUT HIS INITIALS. 

 /S/ WILLIAM WONG

              WILLIAM WONG, NARCOTIC AGENT

                    STATEMENT OF WONG SUN 

I MET JAMES TOY APPROXIMATELY THE MIDDLE OF MARCH, THIS YEAR, AT
MARYSVILLE, CALIFORNIA, DURING A CHINESE CELEBRATION.  WE RETURNED TO
SAN FRANCISCO TOGETHER AND WE DISCUSSED THE POSSIBLE SALE OF HEROIN.  I
TOLD JAMES THAT I COULD GET A PIECE OF HEROIN FOR $450 FROM A PERSON
KNOWN AS BILL. 

SHORTLY AFTER RETURNING TO SAN FRANCISCO, JAMES TOLD ME HE WANTED ME
TO GET A PIECE.  I ASKED HIM WHO IT WAS FOR AND HE TOLD ME IT WAS FOR
JOHNNY.  HE GAVE ME $450 AND I OBTAINED A PIECE OF HEROIN FROM BILL.  I
DID THIS ON APPROXIMATELY 8 OCCASIONS, HOWEVER, AT LEAST ONE OF THESE
TIMES THE HEROIN WAS NOT FOR JOHNNY - FOR ANOTHER FRIEND OF JAMES TOY. 
JOHNNY WOULD PAY JAMES $600 FOR EACH PIECE. 

ON SEVERAL OCCASIONS AFTER I HAD OBTAINED THE PIECE FOR JAMES I WOULD
DRIVE WITH HIM TO JOHNNY'S HOUSE, 606 11TH AVENUE, AND WE WOULD GO
UPSTAIRS TO THE BEDROOM.  THERE, ALL THREE OF US WOULD SMOKE SOME OF
THE HEROIN AND JAMES WOULD GIVE THE PIECE TO JOHNNY.  I ALSO WENT WITH
JAMES ON APPROXIMATELY 3 OTHER OCCASIONS WHEN HE DID NOT TAKE ANY
HEROIN AND THEN WE SMOKED AT JOHNNY'S AND WE WOULD ALSO GET SOME FOR
OUR OWN USE. 

ABOUT 4 DAYS BEFORE I WAS ARRESTED (ARRESTED ON JUNE 4, 1959) JAMES
CALLED ME AT HOME ABOUT 7 O'CLOCK IN THE EVENING AND TOLD ME TO COME
BY.  I WENT TO THE LAUNDRY AND JAMES TOLD ME TO GET A PIECE.  I CALLED
BILL AND ARRANGED TO MEET HIM.  JAMES GAVE ME $450 WHICH I GAVE TO BILL
WHEN I MET HIM.  BILL CALLED ME ABOUT ONE HOUR LATER AT THE LAUNDRY AND
I MET HIM.  HE GAVE ME ONE PIECE, WHICH I GAVE TO JAMES, AND JAMES
IMMEDIATELY THEREAFTER CALLED JOHNNY.  WE DROVE TO 606 11TH AVE. AT
APPROXIMATELY MIDNIGHT AND JAMES GAVE THE PIECE TO JOHNNY.  IT WAS
CONTAINED IN A RUBBER CONTRACEPTIVE IN A SMALL BROWN PAPER BAG. 

AGAIN ON JUNE 3RD, THE NIGHT BEFORE I WAS ARRESTED, I MET JAMES AT
THE LAUNDRY, PRIOR TO 11 O'CLOCK IN THE EVENING, AND JAMES TELEPHONED
JOHNNY AT EV6-9336.  THEN WE WENT OUT TO JOHNNY'S AND SMOKED HEROIN AND
ALSO HAD ONE PAPER FOR OUR OWN USE LATER.  WE WERE THERE APPROXIMATELY
1/2 HOUR AND THEN LEFT. 

THE LAUNDRY MENTIONED IS OYE'S LAUNDRY, 1733 LEAVENWORTH STREET,
WHICH IS RUN BY JAMES TOY.  I DO NOT KNOW JOHNNY'S LAST NAME AND KNOW
HIM ONLY THROUGH JAMES TOY.  AS WELL AS THE FEW TIMES AT JOHNNY'S HOME,
I HAVE SEEN JOHNNY ON A NUMBER OF OCCASIONS AT THE LAUNDRY. 

I HAVE CAREFULLY READ THE FOREGOING STATEMENT, CONSISTING OF 2 PAGES
WHICH WAS MADE OF MY OWN FREE WILL, WITHOUT PROMISE OF REWARD OR
IMMUNITY AND NOT UNDER DURESS.  I HAVE BEEN GIVEN AMPLE OPPORTUNITY TO
MAKE CORRECTIONS, HAVE INITIALED OR SIGNED EACH PAGE AS EVIDENCE
THEREOF AND HEREBY STATE THAT THIS STATEMENT IS TRUE TO THE BEST OF MY
KNOWLEDGE AND BELIEF. 

                             WONG SUN 

     *         *         *         *         * 

WONG SUN, BEING UNABLE TO READ ENGLISH, DID NOT SIGN THIS STATEMENT. 
HOWEVER, I READ THIS STATEMENT TO HIM AND HE STATED THAT THE CONTENTS
THEREOF WERE TRUE TO THE BEST OF HIS KNOWLEDGE. 

                             /S/ WILLIAM WONG

                                               WILLIAM WONG,
NARCOTIC AGENT 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE COURT'S OPINION I DO SO BECAUSE NOTHING THE COURT
HOLDS IS INCONSISTENT WITH MY BELIEF THAT THERE HAVING BEEN TIME TO GET
A WARRANT, PROBABLE CAUSE ALONE COULD NOT HAVE JUSTIFIED THE ARREST OF
PETITIONER TOY WITHOUT A WARRANT. 

I ADHERE TO THE VIEWS I EXPRESSED IN JONES V. UNITED STATES, 362 U.S.
257, 273.  WHAT I SAID IN THE JONES CASE HAD BEEN EARLIER STATED BY MR.
JUSTICE JACKSON, WRITING FOR THE COURT IN JOHNSON V. UNITED STATES, 333
U.S. 10 (ANOTHER NARCOTICS CASE): 

"THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT GRASPED BY
ZEALOUS OFFICERS, IS NOT THAT IT DENIES LAW ENFORCEMENT THE SUPPORT OF
THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM EVIDENCE.  ITS
PROTECTION CONSISTS IN REQUIRING THAT THOSE INFERENCES BE DRAWN BY A
NEUTRAL AND DETACHED MAGISTRATE INSTEAD OF BEING JUDGED BY THE OFFICER
ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING OUT CRIME. 
ANY ASSUMPTION THAT EVIDENCE SUFFICIENT TO SUPPORT A MAGISTRATE'S
DISINTERESTED DETERMINATION TO ISSUE A SEARCH WARRANT WILL JUSTIFY THE
OFFICERS IN MAKING A SEARCH WITHOUT A WARRANT WOULD REDUCE THE
AMENDMENT TO A NULLITY AND LEAVE THE PEOPLE'S HOMES SECURE ONLY IN THE
DISCRETION OF POLICE OFFICERS."  PP. 13-14.  AND SEE CHAPMAN V. UNITED
STATES, 365 U.S. 610, 615-616. 

THE COURT FINDS IT UNNECESSARY TO REACH THAT CONSTITUTIONAL
QUESTION.  I MENTION IT ONLY TO REITERATE THAT THE JOHNSON CASE
REPRESENTS THE LAW AND IS IN NO WAY ERODED BY WHAT WE FAIL TO DECIDE
TODAY. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN, MR. JUSTICE STEWART
AND MR. JUSTICE WHITE JOIN, DISSENTING. 

THE COURT HAS MADE A CHINESE PUZZLE OUT OF THIS SIMPLE CASE INVOLVING
FOUR PARTICIPANTS: HOM WAY, BLACKIE TOY, JOHNNY YEE AND "SEA DOG" SUN. 
IN SETTING ASIDE THE CONVICTIONS OF TOY AND SUN IT HAS DASHED TO PIECES
THE HERETOFORE RECOGNIZED STANDARDS OF PROBABLE CAUSE NECESSARY TO
SECURE AN ARREST WARRANT OR TO MAKE AN ARREST WITHOUT ONE.  INSTEAD OF
DEALING WITH PROBABLE CAUSE AS INVOLVING "PROBABILITIES," "THE FACTUAL
AND PRACTICAL CONSIDERATIONS OF EVERYDAY LIFE ON WHICH REASONABLE AND
PRUDENT MEN, NOT LEGAL TECHNICIANS, ACT," BRINEGAR V. UNITED STATES,
338 U.S. 160, 175 (1949), THE COURT SETS UP RIGID, MECHANICAL
STANDARDS, APPLYING THE 20-20 VISION OF HINDSIGHT IN AN AREA WHERE THE
AMBIGUITY AND IMMEDIACY INHERENT IN UNEXPECTED ARREST ARE PRESENT. 
WHILE PROBABLE CAUSE MUST BE BASED ON MORE THAN MERE SUSPICION, HENRY
V. UNITED STATES, 361 U.S. 98, 104 (1959), IT DOES NOT REQUIRE PROOF
SUFFICIENT TO ESTABLISH GUILT.  DRAPER V. UNITED STATES, 358 U.S. 307,
312 (1959).  THE SOLE REQUIREMENT HERETOFORE HAS BEEN THAT THE
KNOWLEDGE IN THE HANDS OF THE OFFICERS AT THE TIME OF ARREST MUST
SUPPORT A "MAN OF REASONABLE CAUTION IN THE BELIEF" THAT THE SUBJECT
HAD COMMITTED NARCOTIC OFFENSES.  CARROLL V. UNITED STATES, 267 U.S.
132, 162 (1925).  THAT DECISION IS FACED INITIALLY NOT IN THE COURTROOM
BUT AT THE SCENE OF ARREST WHERE THE TOTALITY OF THE CIRCUMSTANCES
FACING THE OFFICER IS WEIGHED AGAINST HIS SPLIT-SECOND DECISION TO MAKE
THE ARREST.  THIS IS AN EVERYDAY OCCURRENCE FACING LAW ENFORCEMENT
OFFICERS, AND THE UNREALISTIC, ENLARGED STANDARDS ANNOUNCED HERE PLACE
AN UNNECESSARILY HEAVY HAND UPON THEM.  I THEREFORE DISSENT. 

                        I. 

THE FIRST CHARACTER IN THIS AFFAIR IS HOM WAY, WHO WAS ARRESTED IN
POSSESSION OF NARCOTICS AND TOLD THE OFFICERS EARLY THAT MORNING THAT
HE HAD PURCHASED AN OUNCE OF HEROIN ON THE PREVIOUS NIGHT FROM BLACKIE
TOY, WHO OPERATED A LAUNDRY ON LEAVENWORTH STREET.  NARCOTICS AGENTS,
ARMED WITH THIS INFORMATION FROM A PERSON THEY HAD KNOWN FOR SIX WEEKS
AND WHO WAS UNDER ARREST FOR POSSESSION OF NARCOTICS, IMMEDIATELY
SOUGHT OUT BLACKIE TOY, THE SECOND CHARACTER.  THE LAUNDRY WAS LOCATED
WITHOUT DIFFICULTY (AS FAR AS THE RECORD SHOWS) FROM THE INFORMATION
FURNISHED BY HOM WAY.  THE COURT GRATUITOUSLY READS INTO THE RECORD ITS
SUPPOSITION THAT HOM WAY "MERELY INVITED THE OFFICERS TO ROAM THE
LENGTH OF LEAVENWORTH STREET (SOME 30 BLOCKS) IN SEARCH OF ONE 'BLACKIE
TOY'S' LAUNDRY ... ."  ON THE CONTRARY, THE IDENTIFICATION OF "BLACKIE"
AND THE DIRECTIONS TO HIS LAUNDRY WERE SUFFICIENTLY ACCURATE FOR THE
OFFICERS - TWO OF WHOM WERE OF CHINESE ANCESTRY - TO FIND BLACKIE AT
HIS LAUNDRY WITHIN AN HOUR.  I CANNOT SAY IN THE FACE OF THIS RECORD
THAT THIS WAS A "ROAMING" PERFORMANCE UP AND DOWN LEAVENWORTH STREET. 
TO ME IT WAS EFFICIENT POLICE WORK BY OFFICERS FAMILIAR WITH SAN
FRANCISCO AND THE HABITS AND PRACTICES OF ITS CHINESE-AMERICAN
INHABITANTS.  INDEED, THE INFORMATION WAS MUCH MORE EXPLICIT THAN THAT
APPROVED BY THIS COURT IN DRAPER V. UNITED STATES, SUPRA.    THERE ARE
OTHER INDICIA OF RELIABILITY, HOWEVER.  HERE THE INFORMER, BELIEVED BY
THE OFFICERS TO BE RELIABLE*, WAS UNDER ARREST WHEN HE IMPLICATED
HIMSELF IN THE PURCHASE OF AN OUNCE OF HEROIN THE PREVIOUS NIGHT. 
SINCE HE WAS IN POSSESSION OF NARCOTICS AND HIS INFORMATION RELATED TO
A NARCOTICS SALE IN WHICH HE WAS THE BUYER, THE OFFICERS HAD GOOD
REASON TO RELY ON HOM WAY'S KNOWLEDGE.  SEE RODGERS V. UNITED STATES,
267 F.2D 79 (C.A. 9TH CIR. 1959), AND THOMAS V. UNITED STATES, 281 F.2D
132 (C.A. 8TH CIR.), CERT. DENIED, 364 U.S. 904 (1960).  AS TO HIS
CREDIBILITY, HE WAS CONFRONTED WITH PROSECUTION FOR POSSESSION OF
NARCOTICS AND WELL KNEW THAT ANY DISCREPANCIES IN HIS STORY MIGHT GO
HARD WITH HIM.  FURTHERMORE, THE STATEMENT WAS A DECLARATION AGAINST
INTEREST WHICH STRIPPED HOM WAY OF ANY EXPLANATION FOR HIS POSSESSION
OF NARCOTICS AND MADE CERTAIN THE PRESUMPTION OF 21 U.S.C. SEC. 174.  I
DO NOT SEE WHAT STRONGER AND MORE RELIABLE INFORMATION ONE COULD HAVE
TO ESTABLISH PROBABLE CAUSE FOR THE ARREST WITHOUT WARRANT OF BLACKIE
TOY. 

*ONE OF THE OFFICERS TESTIFIED AT THE TRIAL THAT HE HAD KNOWN HOM WAY
FOR SIX WEEKS.  IN RESPONSE TO THE QUESTION WHETHER HOM WAY WAS A
RELIABLE INFORMER, THE OFFICER REPLIED, "I BELIEVE SO, YES, SIR." 

BUT EVEN ASSUMING THERE WAS NO PROBABLE CAUSE AT THIS POINT, THE
GOVERNMENT PRODUCED ADDITIONAL EVIDENCE TO SUPPORT THE LAWFULNESS OF
BLACKIE'S ARREST.  IN BROAD DAYLIGHT, ABOUT 6:30 ON THE SAME MORNING
THAT HOM WAY WAS ARRESTED, ONE OF THE OFFICERS OF CHINESE ANCESTRY,
AGENT ALTON WONG, KNOCKED ON BLACKIE TOY'S LAUNDRY DOOR.  WHEN WONG
TOLD HIM THAT HE WANTED LAUNDRY, BLACKIE OPENED THE DOOR AND ADVISED
HIM TO RETURN AT 8 A.M.  WONG TESTIFIED THAT HE THEN "PULLED OUT HIS
BADGE" AND ANNOUNCED THAT HE WAS A NARCOTICS AGENT.  BLACKIE SLAMMED
THE DOOR IN WONG'S FACE AND RAN DOWN THE HALL OF THE LAUNDRY.  WONG
BROKE THROUGH THE DOOR AFTER HIM - CALLING AGAIN THAT HE WAS "A
NARCOTICS TREASURY AGENT."  ONLY WHEN BLACKIE REACHED THE FAMILY
BEDROOM WAS WONG ABLE TO ARREST HIM, AS HE REACHED INTO A NIGHTSTAND
DRAWER, APPARENTLY LOOKING FOR NARCOTICS.  AGENT WONG IMMEDIATELY
CONFRONTED HIM WITH HOM WAY'S ACCUSATION THAT BLACKIE TOY HAD SOLD HIM
NARCOTICS.  BLACKIE DENIED SELLING NARCOTICS, BUT HE DID NOT DENY
KNOWING HOM WAY AND LATER ADMITTED KNOWING HIM.  THERE IS NO BASIS IN
MILLER V. UNITED STATES, 357 U.S. 301 (1958), FOR THE COURT'S
CONCLUSION THAT BLACKIE'S FLIGHT "SIGNIFIED  ...  A NATURAL DESIRE (BY
TOY) TO REPEL AN APPARENTLY UNAUTHORIZED INTRUSION  ...  ."  AS I SEE
IT THIS IS INCREDIBLE IN THE LIGHT OF THE RECORD.  NOR IS THERE ANY
SUPPORT IN THE RECORD THAT "BEFORE TOY FLED, THE OFFICER NEVER
ADEQUATELY DISPELLED THE MISIMPRESSION ENGENDERED BY HIS OWN RUSE."  ON
THE CONTRARY THE OFFICER'S SHOWING OF HIS BADGE AND ANNOUNCEMENT THAT
HE WAS A NARCOTICS AGENT IMMEDIATELY PUT BLACKIE IN FLIGHT BEHIND THE
SLAMMING DOOR.  TO CONCLUDE OTHERWISE TAKES ALL PRIZES AS A NON
SEQUITUR.  AS HE PURSUED, WONG CONTINUED TO IDENTIFY HIMSELF AS A
NARCOTICS AGENT.  I ASK, HOW COULD HE MORE CLEARLY ANNOUNCE HIMSELF AND
HIS PURPOSE? 

THIS COURT HAS OFTEN HELD UNEXPLAINED FLIGHT - AS HERE - FROM AN
OFFICER TO BE STRONG EVIDENCE OF GUILT.  E.G., HUSTY V. UNITED STATES,
282 U.S. 694 (1931); BRINEGAR V. UNITED STATES, SUPRA, AT P. 166, N. 7;
SEE HENRY V. UNITED STATES, SUPRA, WHERE THE COURT WAS CAREFUL TO
DISTINGUISH ITS FACTS FROM THOSE OF "FLEEING MEN OR MEN ACTING
FURTIVELY."  361 U.S., AT 103.  MOREOVER, AS THE GOVERNMENT HAS ALWAYS
EMPHASIZED, THIS IS PARTICULARLY TRUE IN NARCOTICS CASES WHERE DELAY
MAY HAVE SERIOUS CONSEQUENCES, I.E., THE HIDING OR DESTRUCTION OF THE
DRUGS.  THIS COURT NOTED WITHOUT DISAPPROVAL IN MILLER V. UNITED
STATES, SUPRA, THE STATE DECISIONS HOLDING THAT "JUSTIFICATION FOR
NONCOMPLIANCE (WITH THE RULE) EXISTS IN EXIGENT CIRCUMSTANCES, AS, FOR
EXAMPLE, WHEN THE OFFICERS MAY IN GOOD FAITH BELIEVE  ...  THAT THE
PERSON TO BE ARRESTED IS FLEEING OR ATTEMPTING TO DESTROY EVIDENCE. 
PEOPLE V. MADDOX, 46 CAL. 2D 301, 294 P.2D 6."  357 U.S., AT 309.  AND
THE COURT CONTINUED, "IT MAY BE THAT, WITHOUT AN EXPRESS ANNOUNCEMENT
OF PURPOSE, THE FACTS KNOWN TO OFFICERS WOULD JUSTIFY THEM IN BEING
VIRTUALLY CERTAIN THAT THE PETITIONER ALREADY KNOWS THEIR PURPOSE SO
THAT AN ANNOUNCEMENT WOULD BE A USELESS GESTURE.  CF. PEOPLE V. MARTIN,
45 CAL. 2D 755, 290 P.2D 855; WILGUS, ARREST WITHOUT A WARRANT, 22
MICH. L. REV. 541, 798, 802 (1924)."  ID., AT 310. 

THE COURT PLACES ENTIRE RELIANCE ON THE DECISION IN MILLER.  I SUBMIT
THAT IT IS INAPPOSITE.  THAT CASE INVOLVED INTERPRETATION OF THE LAW OF
THE DISTRICT OF COLUMBIA.  ID., AT 306.  THE ARREST WAS AT NIGHT, AND
THE DOOR WAS BROKEN IN JUST AS THE DEFENDANT BEGAN TO CLOSE IT.  THUS
THERE WAS NO FLIGHT BUT ONLY WHAT THE OFFICERS BELIEVED TO BE AN
ATTEMPT TO BAR THEIR ENTRANCE.  THE ONLY IDENTIFICATION GIVEN BY THE
OFFICERS OCCURRED BEFORE THE DEFENDANT OPENED THE DOOR, WHEN "IN A LOW
VOICE" THROUGH THE CLOSED DOOR THEY ANSWERED THE DEFENDANT'S QUERY AS
TO WHO WAS THERE BY SAYING, "POLICE."  ID., AT 303.  THE FACTS IN
MILLER DIFFER SIGNIFICANTLY FROM THIS CASE BOTH IN THE CLARITY OF
IDENTIFICATION BY THE OFFICERS AND IN THE CHARACTER AND EXTENT OF THE
DEFENDANT'S CONDUCT.  FOR THAT REASON, THE CONCLUSIONS THAT BLACKIE'S
FLIGHT IS EVIDENCE TO SUPPORT PROBABLE CAUSE AND THAT THE OFFICERS GAVE
SUFFICIENT NOTICE TO PERMIT LAWFUL ENTRY ARE SUPPORTED RATHER THAN
WEAKENED BY THE COURT'S DECISION IN MILLER. 

THE INFORMATION FROM HOM WAY AND BLACKIE TOY'S UNEXPLAINED FLIGHT
CANNOT BE VIEWED "IN TWO SEPARATE, LOGIC-TIGHT COMPARTMENTS  ...  .
TOGETHER THEY COMPOSED A PICTURE MEANINGFUL TO A TRAINED, EXPERIENCED
OBSERVER."  CHRISTENSEN V. UNITED STATES, 104 U.S. APP. D.C. 35, 36,
259 F.2D 192, 193 (1958).  I SUBMIT THAT THE OFFICERS AS REASONABLE MEN
PROPERLY CONCLUDED THAT THE PETITIONER WAS THE "BLACKIE TOY" WHO HOM
WAY INFORMED THEM HAD COMMITTED A FELONY AND THAT HIS IMMEDIATE ARREST
AS HE RAN THROUGH HIS HALL - WAS LAWFUL AND WAS IMPERATIVE IN ORDER TO
PREVENT HIS ESCAPE.  IN VIEW OF THIS THERE IS NO "POISONOUS TREE" WHOSE
FRUITS WE MUST EVALUATE, AND BLACKIE'S DECLARATION AT THE TIME OF THE
ARREST AND THE NARCOTICS FOUND IN YEE'S POSSESSION ARE ADMISSIBLE IN
EVIDENCE.  THE TRIAL COURT FOUND THAT EVIDENCE SUFFICIENTLY
CORROBORATIVE OF TOY'S CONFESSION, AND THE COURT OF APPEALS AFFIRMED. 
FOR THE SAME REASONS DISCUSSED, INFRA, AS TO WONG SUN, I SEE NO
OCCASION TO OVERTURN THESE CONSISTENT FINDINGS OF TWO COURTS. 

           II. 

AS TO "SEA DOG," WONG SUN, THERE IS NO DISAGREEMENT THAT HIS
CONFESSION AND THE NARCOTICS FOUND IN YEE'S POSSESSION WERE ADMISSIBLE
IN EVIDENCE AGAINST HIM.  THE QUESTION REMAINS AS TO WHETHER THERE WAS
SUFFICIENT INDEPENDENT EVIDENCE TO CORROBORATE THE CONFESSION.  SUCH
EVIDENCE "DOES NOT HAVE TO PROVE THE OFFENSE BEYOND A REASONABLE DOUBT,
OR EVEN BY A PREPONDERANCE  ...  ."  SMITH V. UNITED STATES, 348 U.S.
147, 156 (1954).  THE REQUIREMENT IS SATISFIED "IF THE CORROBORATION
MERELY FORTIFIES THE TRUTH OF THE CONFESSION, WITHOUT INDEPENDENTLY
ESTABLISHING THE CRIME CHARGED  ...  ."   IBID.; SEE ALSO OPPER V.
UNITED STATES, 348 U.S. 84 (1954).  WONG SUN'S CONFESSION STATED IN
PART THAT ABOUT FOUR DAYS BEFORE HIS ARREST HE AND TOY DELIVERED AN
OUNCE OF HEROIN TO YEE AND THAT ON THE NIGHT BEFORE HIS ARREST - THE
NIGHT OF JUNE 3, 1959 - HE AND TOY SMOKED SOME HEROIN AT YEE'S HOUSE. 
ON JUNE 4, 1959, THE OFFICERS FOUND AT YEE'S RESIDENCE QUANTITIES OF
HEROIN TOTALING "JUST LESS THAN ONE OUNCE."  IN LIGHT OF THIS EVIDENCE,
I AM UNABLE TO SAY THAT THE TRIAL COURT AND THE COURT OF APPEALS ERRED
IN HOLDING THAT WONG SUN'S CONFESSION WAS SUFFICIENTLY CORROBORATED. 

THE COURT DOES NOT REACH A CONTRARY CONCLUSION AS TO CORROBORATION,
BUT IT GRANTS WONG SUN A NEW TRIAL ON THE GROUND THAT THE TRIAL COURT
"MAY" ALSO "HAVE CONSIDERED THE CONTENTS OF TOY'S STATEMENT AS A SOURCE
OF CORROBORATION" OF IT.  THIS POINT WAS NOT RAISED AS A QUESTION HERE
NOR WAS IT DISCUSSED IN THE BRIEFS.  DESPITE THIS THE COURT GOES TO
SOME LENGTHS TO DEVELOP A CHAIN OF INFERENCES IN FINDING PREJUDICIAL
ERROR.  THIS MIGHT BE PLAUSIBLE WHERE THE CASE WAS TRIED TO A JURY, AS
WERE ALL THE CASES CITED BY THE COURT.  INDEED, I FIND NO CASE WHERE
SUCH PRESUMPTION OF ERROR WAS APPLIED, AS HERE, TO A TRIAL BEFORE A
JUDGE.  THE COURT ADMITS THAT THE HEROIN FOUND IN JOHNNY YEE'S
POSSESSION MIGHT ITSELF BE SUFFICIENT CORROBORATION, BUT IT REVERSES ON
THE EXCUSE THAT THE JUDGE "MAY" HAVE CONSIDERED TOY'S CONFESSION AS
WELL.  I SEE NO REASON FOR THIS ASSUMPTION WHERE A FEDERAL JUDGE IS THE
TRIER OF THE FACT, AND I WOULD THEREFORE AFFIRM THE JUDGMENT AS TO BOTH
PETITIONERS. 
..END :





FEDERAL TRADE COMMISSION V. SUN OIL CO. 371 U.S. 505 


NO. 56.  ARGUED NOVEMBER 15, 1962.  - DECIDED JANUARY 14, 1963.  - 294
F.2D 465, REVERSED. 


RESPONDENT, A REFINER-SUPPLIER OF ITS OWN BRANDED GASOLINE, WAS
CHARGED WITH PRICE DISCRIMINATION IN VIOLATION OF SEC. 2(A) OF THE
CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT, WHEN IT GRANTED A
REDUCTION IN PRICE TO ONE OF ITS INDEPENDENTLY OWNED RETAIL STATION
CUSTOMERS, BUT NOT TO OTHERS OF ITS SIMILARLY OWNED STATION CUSTOMERS
WHO WERE LOCATED NEARBY AND WHO WERE SHOWN TO HAVE BEEN COMPETITIVELY
HARMED BY THE DISCRIMINATORY REDUCTION.  THE ALLOWANCE TO THE FAVORED
STATION WAS GIVEN IN ORDER TO ENABLE IT TO MEET THE PRICE REDUCTIONS OF
A COMPETING SERVICE STATION OWNED AND OPERATED BY A RETAIL CHAIN
SELLING A DIFFERENT BRAND OF GASOLINE.  HELD:  RESPONDENT IS NOT
ENTITLED UNDER SEC. 2(B) OF THE ACT TO THE DEFENSE THAT ITS
DISCRIMINATORY LOWER PRICE WAS GIVEN "IN GOOD FAITH TO MEET THE EQUALLY
LOW PRICE OF A COMPETITOR," SINCE THE COMPETING STATION IS NOT A
"COMPETITOR" OF RESPONDENT WITHIN THE MEANING OF SEC. 2(B), WHICH
CONTEMPLATES THAT A SELLER MAY MEET THE LOWER PRICE OF ITS OWN, AND NOT
ITS CUSTOMER'S, COMPETITOR.  PP. 506-529. 

FEDERAL TRADE COMMISSION V. SUN OIL CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THIS CASE GROWS OUT OF A GASOLINE "PRICE WAR" IN JACKSONVILLE,
FLORIDA.  THE QUESTION PRESENTED IS WHETHER A REFINER-SUPPLIER OF
GASOLINE CHARGED WITH THE GRANTING OF A PRICE DISCRIMINATION IN
VIOLATION OF SEC. 2(A) OF THE CLAYTON ACT, (FN1) AS AMENDED BY THE
ROBINSON-PATMAN ACT, HAS AVAILABLE TO IT, UNDER SEC. 2(B) OF THE ACT,
(FN2) THE DEFENSE THAT THE DISCRIMINATORY LOWER PRICE WAS GIVEN "IN
GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR," WHEN THE
GASOLINE REFINER-SUPPLIER SHOWS THAT IT GAVE THE DISCRIMINATORY PRICE
TO ONLY ONE OF A NUMBER OF ITS INDEPENDENTLY OWNED RETAIL STATION
CUSTOMERS IN A PARTICULAR REGION IN ORDER TO ENABLE THAT STATION TO
MEET PRICE REDUCTIONS OF A COMPETING SERVICE STATION OWNED AND OPERATED
BY A RETAIL CHAIN SELLING A DIFFERENT BRAND OF GASOLINE. 

THE FEDERAL TRADE COMMISSION HELD THE SEC. 2(B) DEFENSE TO BE
AVAILABLE UNDER SUCH CIRCUMSTANCES.  55 F.T.C. 955.  THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT REVERSED, 294 F.2D 465, AND THIS COURT
GRANTED CERTIORARI, 368 U.S. 984, TO REVIEW THIS DIFFICULT AND
IMPORTANT QUESTION CONCERNING THE SCOPE AND APPLICATION OF THE SEC.
2(B) DEFENSE. 

                                              I. 

THE RELEVANT FACTS ARE NOT SERIOUSLY DISPUTED. 

RESPONDENT, SUN OIL COMPANY ("SUN"), IS A NEW JERSEY CORPORATION AND
A MAJOR INTEGRATED REFINER AND DISTRIBUTOR OF PETROLEUM PRODUCTS,
INCLUDING GASOLINE.  AT THE TIME OF THE ALLEGED VIOLATION HERE IN
ISSUE, SUN MARKETED IN 18 STATES A SINGLE GRADE OF GASOLINE SOLD UNDER
THE TRADE NAME "SUNOCO."  SUN DOES NOT ORDINARILY SELL DIRECTLY TO THE
MOTORIST, BUT USUALLY DISTRIBUTES ITS GASOLINE AND OTHER RELATED
PRODUCTS TO THE CONSUMING PUBLIC THROUGH RETAIL SERVICE STATION
OPERATORS WHO LEASE THEIR STATIONS FROM IT.  (FN3) 

IN 1955, GILBERT MCLEAN WAS THE LESSEE AND OPERATOR OF A SUNOCO GAS
STATION LOCATED ON THE CORNER OF 19TH AND PEARL STREETS IN
JACKSONVILLE, FLORIDA.  HE WAS ONE OF SUN'S 38 RETAIL DEALERS IN THE
JACKSONVILLE AREA, WHICH SUN DIVIDED INTO THREE SALES TERRITORIES;
MCLEAN OPERATED IN A SALES TERRITORY COMPOSED OF EIGHT SUN STATIONS,
ONE OF WHICH WAS ONLY ABOUT 11 BLOCKS AWAY FROM MCLEAN.  LIKE ALMOST
ALL RETAIL SELLERS OF BRANDED GASOLINE, MCLEAN BOUGHT AND SOLD ONLY THE
PETROLEUM PRODUCTS OF A SINGLE SUPPLIER, HERE SUN.  NOTWITHSTANDING, HE
WAS, AS FOUND BELOW, AND CONCEDED HERE, AN INDEPENDENT CONTRACTOR AND
BORE THE DIRECT AND IMMEDIATE RISK OF PROFITABILITY OF THE STATION. 

COMMENCING OPERATION OF THE STATION IN FEBRUARY 1955, MCLEAN BOUGHT
GASOLINE FROM SUN AT 24.1 CENTS PER GALLON AND RESOLD IT AT 28.9 CENTS
PER GALLON TO THE MOTORING PUBLIC; THE OTHER SUN DEALERS IN
JACKSONVILLE PURCHASED FROM SUN AT THE SAME PRICE AND OBTAINED THE SAME
4.8-CENT-PER-GALLON MARGIN OF GROSS PROFIT. 

IN JUNE 1955, ABOUT FOUR MONTHS AFTER MCLEAN BEGAN BUSINESS, THE
SUPER TEST OIL COMPANY, WHICH OPERATED ABOUT 65 RETAIL SERVICE
STATIONS, OPENED A SUPER TEST STATION DIAGONALLY ACROSS THE STREET FROM
MCLEAN AND BEGAN SELLING ITS "REGULAR" GRADE OF GASOLINE AT 26.9 CENTS
PER GALLON.  IT APPEARS THAT THIS WAS SUPER TEST'S FIRST AND ONLY
STATION IN JACKSONVILLE.  THE RECORD DOES NOT DISCLOSE THAT SUPER TEST
WAS ANYTHING MORE THAN A RETAIL DEALER; NOR DOES IT INDICATE THE SOURCE
FROM WHICH SUPER TEST OBTAINED ITS GASOLINE. 

THE TWO-CENT-PER-GALLON DIFFERENCE IN PRICE BETWEEN MCLEAN AND SUPER
TEST REPRESENTED THE "NORMAL" PRICE DIFFERENTIAL THEN PREVAILING IN THE
AREA BETWEEN "MAJOR" AND "NON-MAJOR" BRANDS OF GASOLINE.  THIS "NORMAL"
DIFFERENTIAL REPRESENTS THE PRICE SPREAD WHICH CAN OBTAIN BETWEEN THE
TWO TYPES OF GASOLINE WITHOUT MAJOR COMPETITIVE REPERCUSSIONS.  THUS,
MCLEAN WAS APPARENTLY NOT ADVERSELY AFFECTED TO ANY SUBSTANTIAL DEGREE
BY THIS FIRST-POSTED PRICE OF SUPER TEST. 

THEREAFTER, HOWEVER, SUPER TEST SPORADICALLY REDUCED ITS PRICE AT ITS
JACKSONVILLE STATION, USUALLY ON WEEKENDS.  SOME OF THE PRICE CUTS WERE
ADVERTISED IN THE LOCAL NEWSPAPER AND ALL WERE POSTED ON CURBSIDE
SIGNS.  FOR EXAMPLE, ON AUGUST 27, 1955, THE SUPER TEST STATION REDUCED
ITS PRICE TO 21.9 CENTS A GALLON AND ON THE FOLLOWING DAY TO 20.9 CENTS
PER GALLON.  WHILE THESE LOWER PRICES WERE NORMALLY SHORT-LIVED, AT
LEAST ONE WAS MAINTAINED FOR A WEEK.  ON THE OCCASION OF EACH PRICE
REDUCTION BY THE SUPER TEST STATION, MCLEAN'S SALES OF SUNOCO DECLINED
SUBSTANTIALLY. 

WHEN SUPER TEST BEGAN LOWERING ITS PRICE BELOW THE NORMAL TWO-CENT
DIFFERENTIAL, MCLEAN, WHO WAS MAINTAINING HIS PRICE OF 28.9 CENTS PER
GALLON, FROM TIME TO TIME PROTESTED TO SUN AND SOUGHT RELIEF IN THE
FORM OF A PRICE CONCESSION FROM IT.  FOR ABOUT FOUR MONTHS, SUN TOOK NO
ACTION, BUT IN DECEMBER 1955, AFTER FURTHER PERIODIC PRICE REDUCTIONS
BY SUPER TEST AND A COMPLAINT BY MCLEAN THAT HE WOULD BE FORCED OUT OF
BUSINESS ABSENT HELP FROM SUN, SUN TOLD MCLEAN THAT IT WOULD COME TO
HIS AID IN THE EVENT OF FURTHER PRICE CUTS.  WHEN, ON DECEMBER 27,
1955, SUPER TEST DROPPED ITS PRICE FOR "REGULAR" GASOLINE TO 24.9 CENTS
PER GALLON, MCLEAN TOLD SUN THAT HE WOULD HAVE TO POST A PRICE OF 25.9
CENTS IN ORDER TO MEET THE COMPETITION.  ON THE SAME DAY, SUN GAVE
MCLEAN A PRICE ALLOWANCE OR DISCOUNT OF 1.7 CENTS PER GALLON.  MCLEAN
ACCORDINGLY DROPPED HIS RETAIL PRICE THREE CENTS PER GALLON, FROM 28.9
CENTS TO 25.9 CENTS, THUS REDUCING HIS GROSS MARGIN FROM THE PRIOR 4.8
CENTS PER GALLON TO 3.5 CENTS PER GALLON, THE AMOUNT REGARDED BY SUN AS
THE MINIMUM GROSS MARGIN WHICH SHOULD BE EARNED BY ITS RETAIL DEALERS. 
IN LOWERING HIS PRICE TO WITHIN ONE CENT OF SUPER TEST'S, MCLEAN
ABSORBED 1.3 CENTS AND SUN 1.7 CENTS OF THE PER GALLON PRICE
REDUCTION.  NO CORRESPONDING PRICE REDUCTION WAS GIVEN BY SUN TO ANY OF
ITS OTHER DEALERS IN THE AREA. 

WITHIN A FEW DAYS, SUPER TEST FURTHER LOWERED ITS PRICE TO 23.9 CENTS
PER GALLON.  NO FURTHER PRICE CUTS WERE MADE BY EITHER MCLEAN OR SUPER
TEST UNTIL MID-FEBRUARY 1956, WHEN SUPER TEST CUT ITS PRICE FOR
"REGULAR" GASOLINE TO 22.9 CENTS PER GALLON.  AT ABOUT THE SAME TIME, A
GENERAL PRICE WAR DEVELOPED IN THE JACKSONVILLE AREA AND SEVERAL OTHER
SUPPLIERS MADE PRICE REDUCTIONS.  SUN THEN DROPPED ITS PRICE EQUALLY TO
ALL OF ITS DEALERS IN THE AREA.  NOTWITHSTANDING A REMARKABLE INCREASE
IN HIS GALLON SALES AFTER THE DECEMBER 27, 1955, PRICE ALLOWANCE TO HIM
AND THE REDUCTION IN HIS OWN RESALE PRICE, MCLEAN WENT OUT OF BUSINESS
ON FEBRUARY 18, 1956, TWO DAYS AFTER THE OUTBREAK OF THE GENERAL PRICE
WAR.  (FN4)  THE EXACT REASON FOR THE FAILURE OF MCLEAN'S BUSINESS DOES
NOT APPEAR; IT IS NOT CLEAR THAT IT WAS BECAUSE OF THE PRICE WAR. 

DURING THE PERIOD BETWEEN THE DECEMBER 27, 1955, PRICE REDUCTION BY
MCLEAN AND THE FEBRUARY 1956 DATE ON WHICH SUN EXTENDED ITS DISCOUNT TO
ALL OF ITS AREA DEALERS, A NUMBER OF SUN DEALERS LOCATED AT DISTANCES
VARYING FROM LESS THAN A MILE (ABOUT 11 BLOCKS) TO ABOUT THREE AND ONE
HALF MILES FROM MCLEAN'S STATION SUFFERED SUBSTANTIAL DECLINES IN SALES
OF SUNOCO GASOLINE.  SOME OF THESE SUN DEALERS WHO TESTIFIED BELOW SAID
THAT THEY SAW FORMER CUSTOMERS OF THEIRS BUYING GAS FROM MCLEAN AND TWO
DECLARED THAT THEIR CUSTOMERS HAD TOLD THEM THAT THEY SWITCHED TO
MCLEAN BECAUSE OF HIS LOWER PRICE.  SOME OF THESE DEALERS COMPLAINED TO
SUN ABOUT THE FAVORED TREATMENT ACCORDED MCLEAN AND, PRIOR TO THE
FEBRUARY GENERAL PRICE REDUCTIONS, UNSUCCESSFULLY SOUGHT COMPENSATING
DISCOUNTS FROM SUN FOR THEMSELVES.  THOUGH THREE OF THESE OTHER SUN
DEALERS ULTIMATELY WENT OUT OF BUSINESS, THERE IS NO INDICATION THAT
THEY DID SO AS A RESULT OF THE DECEMBER PRICE REDUCTION TO MCLEAN. 

IN SEPTEMBER 1956 THE FEDERAL TRADE COMMISSION FILED A COMPLAINT
AGAINST SUN CHARGING IT WITH ILLEGAL PRICE DISCRIMINATION IN VIOLATION
OF SEC. 2(A) OF THE CLAYTON ACT, AS AMENDED, AND WITH ENTRY INTO A
PRICE-FIXING AGREEMENT WITH MCLEAN IN VIOLATION OF SEC. 5 OF THE
FEDERAL TRADE COMMISSION ACT.  (FN5)  THE COMMISSION ADOPTED THE
FINDINGS, CONCLUSIONS AND PROPOSED ORDER OF THE TRIAL EXAMINER AND
AFFIRMED HIS INITIAL DETERMINATION THAT SUN HAD VIOLATED THE PROVISIONS
OF BOTH ACTS, AS CHARGED.  THE COMMISSION ALSO FOUND THAT THERE HAD
BEEN ACTUAL COMPETITIVE INJURY TO THE NONFAVORED SUN DEALERS BY VIRTUE
OF SUN'S DISCRIMINATORY DECEMBER 27 PRICE ALLOWANCE TO MCLEAN AND
REJECTED SUN'S ASSERTED DEFENSE UNDER SEC. 2(B) OF THE CLAYTON ACT
BECAUSE SUN WAS NOT MEETING ITS OWN COMPETITION, THAT IS A PRICE CUT BY
ANOTHER WHOLESALE SELLER, AND BECAUSE THE ALLOWANCE TO MCLEAN "WAS NOT
MADE TO MEET A LOWER PRICE MADE TO (MCLEAN)  ...  BY ANOTHER SUPPLIER"
BUT "TO MEET THE COMPETITION OF THE SUPER-TEST STATION ACROSS THE
STREET." 

CONSIDERING SUPER TEST TO BE AN INTEGRATED SUPPLIER-RETAILER OF
GASOLINE, THE COURT OF APPEALS REVERSED, REASONING:  FIRST, THAT MCLEAN
WAS BUT A "CONDUIT" FOR THE MARKETING OF SUN'S PRODUCTS AND THEREFORE
SUN, AS A PRACTICAL MATTER, WAS REALLY COMPETING WITH SUPER TEST FOR
SALES OF ITS GASOLINE; AND SECOND, THAT THE PRICE COMPETITION OF SUPER
TEST WAS AS MUCH A THREAT TO THE CONTINUED EXISTENCE OF MCLEAN AS A
CUSTOMER OF SUN AS A DIRECT COMPETING LOWER OFFER TO MCLEAN WOULD HAVE
BEEN AND IT WAS NOT REALISTIC TO EXPECT SUCH AN OFFER TO BE MADE TO
MCLEAN.  THE COURT OF APPEALS CONCLUDED THAT SUN WAS ENTITLED, UNDER
THE CIRCUMSTANCES, TO "ASSERT THE (SEC. 2(B)) DEFENSE OF MEETING
COMPETITION IN GOOD FAITH."  294 F.2D, AT 481.  THE COURT OF APPEALS
DID NOT OVERTURN THE COMMISSION'S FINDING THAT SUN'S DISCRIMINATORY
PRICE CONCESSION TO MCLEAN HAD RESULTED IN COMPETITIVE INJURY TO THE
OTHER SUN DEALERS IN MCLEAN'S AREA. 

THE COMMISSION PETITIONED FOR A WRIT OF CERTIORARI TO REVIEW THE
COURT OF APPEALS HOLDING THAT THE SEC. 2(B) DEFENSE WAS AVAILABLE TO
SUN UNDER THE CIRCUMSTANCES OF THIS RECORD; NO REVIEW WAS SOUGHT OF THE
COURT OF APPEALS REVERSAL OF THE COMMISSION'S FINDINGS THAT SUN HAD
ENTERED A PRICE-FIXING AGREEMENT ILLEGAL UNDER SEC. 5 OF THE FEDERAL
TRADE COMMISSION ACT AND THAT SUN'S PURPOSE IN GRANTING THE LOWER PRICE
TO MCLEAN WAS TO UNDERCUT, NOT MEET, THE PRICE OF SUPER TEST. 

THE ONLY ISSUE THUS BEFORE THE COURT IS WHETHER SUN IS HERE ENTITLED
TO AVAIL ITSELF OF THE SEC. 2(B) DEFENSE THAT ITS DECEMBER 27 "LOWER
PRICE" TO MCLEAN WAS EXTENDED "IN GOOD FAITH TO MEET AN EQUALLY LOW
PRICE OF A COMPETITOR."  IF THE DEFENSE IS UNAVAILABLE, THERE IS NO
ISSUE AS TO VIOLATION OF SEC. 2(A) OF THE CLAYTON ACT; RESPONDENT SUN
DOES NOT DISPUTE THAT THE REQUISITE ELEMENTS OF A PRICE DISCRIMINATION
OTHERWISE ILLEGAL UNDER SEC. 2(A) HAVE BEEN SHOWN. 

AS INDICATED, THE COURT OF APPEALS ASSUMED, AS HAVE A NUMBER OF
COMMENTATORS ON THE CASE, (FN6) THAT SUPER TEST WAS AN INTEGRATED
SUPPLIER-RETAILER OF GASOLINE.  THE RECORD DOES NOT SUPPORT THIS
CONCLUSION, HOWEVER, AND THEREFORE, AS THE CASE COMES TO US,
AVAILABILITY OF THE SEC. 2(B) DEFENSE TO SUN IS DETERMINED ON THE
ASSUMPTION THAT SUPER TEST WAS ENGAGED SOLELY IN RETAIL OPERATIONS;
SIMILARLY, SINCE THERE IS IN THE RECORD NO EVIDENCE AS TO SUPER TEST'S
SOURCE OF SUPPLY OR THE PRICE AT WHICH IT BOUGHT GASOLINE, WE ASSUME
THAT SUPER TEST WAS NOT THE BENEFICIARY OF ANY ENABLING PRICE CUT FROM
ITS OWN SUPPLIER.  (FN7) 

THE PRECISE QUESTION PRESENTED HAS NOT HERETOFORE BEEN RESOLVED BY
THIS COURT.  THE ONLY REPORTED JUDICIAL DECISION (OTHER THAN THAT OF
THE COURT OF APPEALS IN THIS CASE) CONSIDERING THE ISSUE IS A DISTRICT
COURT OPINION SUPPORTING THE VIEW OF THE COMMISSION.  ENTERPRISE
INDUSTRIES, INC., V. TEXAS CO., 136 F. SUPP. 420, REVERSED ON OTHER
GROUNDS, 240 F.2D 457, CERT. DENIED, 353 U.S. 965.  THE COMMISSION
ITSELF HAS IN THE PAST TAKEN A VIEW CONTRARY TO THE ONE URGED HERE, BUT
SINCE 1956 HAS BEEN MAINTAINING ITS PRESENT POSITION. 

            II. 

THE CONTEXT IN WHICH THE CONFLICTING CONTENTIONS OF BOTH THE
COMMISSION AND RESPONDENT SUN MUST FIRST BE CONSIDERED IS THAT FRAMED
BY THE LANGUAGE OF THE STATUTE ITSELF.  SECTION 2(A) OF THE CLAYTON
ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT, MAKES IT UNLAWFUL FOR "ANY
PERSON  ...  TO DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF
COMMODITIES OF LIKE GRADE AND QUALITY  ... WHERE THE EFFECT OF SUCH
DISCRIMINATION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION TO 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."  (FN8)  OF COURSE APPLICABILITY OF THE STATUTE DEPENDS
UPON THE REQUISITE INVOLVEMENT IN INTERSTATE COMMERCE.  AS HAS BEEN
NOTED, THERE IS NO CHALLENGE HERE TO THE FINDING THAT SUN'S ACTIONS
WERE WITHIN THE PROHIBITIONS OF SEC. 2(A); THE DISCRIMINATION WAS FOUND
TO HAVE THE STATUTORILY REQUISITE ANTICOMPETITIVE EFFECTS. 

REBUT A PRIMA FACIE CASE OF DISCRIMINATION IN VIOLATION OF SEC. 2(A) 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."  (FN9)  THIS PROVISO IS USUALLY
REFERRED TO AS THE "GOOD FAITH MEETING COMPETITION" DEFENSE.  THE
SELLER HAS THE BURDEN OF BRINGING HIMSELF WITHIN THE EXCULPATING
PROVISION OF SEC. 2(B), WHICH HAS BEEN INTERPRETED TO AFFORD AN
ABSOLUTE DEFENSE TO A CHARGE OF VIOLATING SEC. 2(A), NOTWITHSTANDING
THE EXISTENCE OF THE STATUTORILY PROHIBITED ANTICOMPETITIVE EFFECT,
STANDARD OIL CO. V. FEDERAL TRADE COMM'N, 340 U.S. 231.    READING THE
WORDS TO HAVE "THEIR NORMAL AND CUSTOMARY MEANING," SCHWEGMANN BROS. V.
CALVERT CORP., 341 U.S. 384, 388, THE SEC. 2(B) PHRASE "EQUALLY LOW
PRICE OF A COMPETITOR" WOULD SEEM TO REFER TO THE PRICE OF A COMPETITOR
OF THE SELLER WHO GRANTS, AND NOT OF THE BUYER WHO RECEIVES, THE
DISCRIMINATORY PRICE CUT.  (IN THIS CASE, THIS WOULD MEAN A COMPETITOR
OF SUN, THE REFINER-SUPPLIER, AND NOT A COMPETITOR OF MCLEAN, THE
RETAIL DEALER.)  WERE SOMETHING MORE INTENDED BY CONGRESS, WE WOULD
HAVE EXPECTED A MORE EXPLICIT RECITATION AS, FOR EXAMPLE, IS THE CASE
IN SEC. 2(A) IN WHICH THE INTENT TO GIVE BROADER SCOPE WAS EXPRESSLY
EFFECTED BY THE PROHIBITION OF PRICE DISCRIMINATIONS WHICH, INTER ALIA,
ADVERSELY AFFECTED COMPETITION NOT ONLY WITH THE SELLER (IN THIS CASE
SUN) WHO GRANTS THE FAVORED PRICE, BUT WITH THE KNOWING RECIPIENT
THEREOF (IN THIS CASE MCLEAN) AND "WITH CUSTOMERS OF EITHER OF THEM." 
THUS, SINCE CONGRESS EXPRESSLY DEMONSTRATED IN THE IMMEDIATELY
PRECEDING PROVISION OF THE ACT THAT IT KNEW HOW TO EXPAND THE
APPLICABLE CONCEPT OF COMPETITION BEYOND THE SOLE LEVEL OF THE SELLER
GRANTING THE DISCRIMINATORY PRICE, IT IS REASONABLE TO CONCLUDE THAT
LIKE CLARITY OF EXPRESSION WOULD BE PRESENT IN SEC. 2(B) IF THE DEFENSE
AVAILABLE THEREUNDER WERE SIMILARLY INTENDED TO BE BROADLY READ TO
ENCOMPASS, AS IS URGED, THE MEETING OF LOWER PRICES SET NOT ONLY BY THE
OFFENDING SELLER'S COMPETITOR, BUT ALSO BY THE PURCHASER'S COMPETITOR. 
THERE IS NO REASON APPEARING ON THE FACE OF THE STATUTE TO ASSUME THAT
CONGRESS INTENDED TO INVOKE BY OMISSION IN SEC. 2(B) THE SAME BROAD
MEANING OF COMPETITION OR COMPETITOR WHICH IT EXPLICITLY PROVIDED BY
INCLUSION IN SEC. 2(A); THE REASONABLE INFERENCE IS QUITE THE
CONTRARY. 

THE FACT THAT SEC. 2(B) PERMITS A SELLER TO MEET THE COMPETITOR'S
"EQUALLY LOW" PRICE IS SIMILARLY SUGGESTIVE OF AN INTERPRETATION WHICH
LIMITS APPLICATION OF THE PROVISO TO SITUATIONS IN WHICH THE SELLER'S
REDUCTION IN PRICE IS MADE IN RESPONSE TO A PRICE CUT BY ITS OWN
COMPETITOR RATHER THAN BY A COMPETITOR OF ITS CUSTOMER.  LINGUISTICALLY
AND PRACTICALLY, IT MAKES BUT LITTLE SENSE TO TALK, FOR EXAMPLE, OF A
WHOLESALER'S MEETING OF THE "EQUALLY LOW" PRICE OF ONE OF HIS
PURCHASER'S RETAIL COMPETITORS.  THE REDUCED RETAIL PRICE OF THE
PURCHASER'S COMPETITOR WILL ALMOST INVARIABLY BE HIGHER THAN THE
SUPPLIER'S WHOLESALE PRICE; EVEN IN THOSE INSTANCES IN WHICH THIS IS
NOT SO, IT CANNOT SERIOUSLY BE SUGGESTED THAT UNDER SEC. 2(B) THE
WHOLESALER IS ENTITLED TO REDUCE DISCRIMINATORILY HIS WHOLESALE PRICE
TO THE LOWER RETAIL LEVEL.  SUCH A RESULT IS NOT ONLY ECONOMICALLY
UNREALISTIC, BUT STRAINS NORMAL LANGUAGE USE.  MOREOVER, IT IS
DIFFICULT TO SEE WHAT APPROPRIATELY COGNIZABLE COMPETITIVE INTEREST
CONGRESS MIGHT BE THOUGHT TO HAVE BEEN SERVING IN ENACTING A STATUTE
PRODUCTIVE OF SUCH AN ANOMALOUS RESULT. 

RECOGNIZING THE INCONGRUITY OF SUCH AN INTERPRETATION, AND HAVING NO
NEED TO GO QUITE SO FAR, RESPONDENT ARGUES MERELY THAT AS A WHOLESALER
IT IS PROTECTED UNDER SEC. 2(B) WHEN IT LOWERS ITS OWN PRICE
SUFFICIENTLY TO ALLOW ITS RETAIL DEALER, IN TURN, TO REDUCE HIS RETAIL
PRICE TO MEET A COMPETITIVE RETAIL OFFER.  BUT THIS TOO EXTENDS THE
STATUTE BEYOND ITS IMMEDIATELY APPARENT MEANING; THE LANGUAGE OF THE
REDUCTION EFFECTED BY TWO SEPARATE ECONOMIC UNITS AT DIFFERENT LEVELS
OF DISTRIBUTION AS THE MEASURE OF SETTING THE "EQUALLY LOW" PRICE. 
(FN10) 

ENOUGH HAS BEEN SAID TO DEMONSTRATE THAT A READING IN CONTEXT OF THE
SEC. 2(B) PROVISO TO GIVE ITS WORDS THEIR NORMAL AND USUAL MEANING
STRONGLY SUGGESTS, THOUGH IT DOES NOT INEXORABLY COMPEL, AN
INTERPRETATION OF THE DEFENSE CONTRARY TO THAT URGED BY RESPONDENT. 
MOREOVER, THE NARROWER INTERPRETATION OF THE STATUTE IS CONSONANT WITH
OVERALL RATIONALITY AND BROADER STATUTORY CONSISTENCY AND PURPOSE, AND
EFFECTS A RESULT COMPATIBLE WITH LEGISLATIVE HISTORY AND ECONOMIC
REALITY.  WE NOW TURN TO CONSIDERATION OF SUCH OTHER FACTORS. 

                                            III. 

PRIOR TO PASSAGE OF THE 1936 ROBINSON-PATMAN ACT, SEC. 2 OF THE
CLAYTON ACT PROHIBITED PRICE DISCRIMINATIONS AND ALLOWED AS ONE DEFENSE
A DEMONSTRATION THAT THE PRICE CONCESSION WAS "MADE IN GOOD FAITH TO
MEET COMPETITION."  38 STAT. 730.  BECAUSE OF CONGRESS' GROWING CONCERN
THAT THIS EXEMPTION WAS OVERLY BROAD AND DID NOT SUFFICIENTLY INHIBIT
BUSINESS CONCENTRATION THOUGHT TO BE FOSTERED IN SUBSTANTIAL PART BY
UNWARRANTED PRICE FAVORITISM SHOWN BY SUPPLIERS TO LARGE BUYERS,
PARTICULARLY LARGE RETAIL CHAINS THEN THREATENING SMALLER LOCAL
MERCHANTS, THE ROBINSON-PATMAN ACT WAS PASSED TO STRENGTHEN THE CLAYTON
ACT PROHIBITIONS ON PRICE DISCRIMINATION.  SEE, E.G., H.R. REP. NO.
2287, 74TH CONG., 2D SESS. 3-6; ROWE, PRICE DISCRIMINATION UNDER THE
ROBINSON-PATMAN ACT (1962), PP. 3-24.  NOT ONLY WAS SEC. 2(A) AMENDED
TO ELIMINATE CERTAIN WEAKNESSES, BUT THE SEC. 2(B) PROVISO
LEGITIMATIZING DISCRIMINATIONS MADE TO "MEET COMPETITION" WAS LIMITED
TO PROTECT ONLY DISCRIMINATIONS MADE "TO MEET AN EQUALLY LOW PRICE OF A
COMPETITOR." 

THE HOUSE COMMITTEE, IN ITS REPORT ON THE BILL, SAID OF THE NEWLY
WORDED SEC. 2(B) PROVISO: 

"THIS PROVISO REPRESENTS A CONTRACTION OF AN EXEMPTION NOW CONTAINED
IN SECTION 2 OF THE CLAYTON ACT WHICH PERMITS DISCRIMINATIONS WITHOUT
LIMIT WHERE MADE IN GOOD FAITH TO MEET COMPETITION.  IT SHOULD BE NOTED
THAT WHILE THE SELLER IS PERMITTED TO MEET LOCAL COMPETITION, IT DOES
NOT PERMIT HIM TO CUT LOCAL PRICES UNTIL HIS COMPETITOR HAS FIRST
OFFERED LOWER PRICES, AND THEN HE CAN GO NO FURTHER THAN TO MEET THOSE
PRICES.  IF HE GOES FURTHER, HE MUST DO SO LIKEWISE WITH ALL HIS OTHER
CUSTOMERS, OR MAKE HIMSELF LIABLE TO ALL OF THE PENALTIES OF THE ACT,
INCLUDING TREBLE DAMAGES.  IN OTHER WORDS, THE PROVISO PERMITS THE
SELLER TO MEET THE PRICE ACTUALLY PREVIOUSLY OFFERED BY A LOCAL
COMPETITOR.  IT PERMITS HIM TO GO NO FURTHER."  H.R. REP. NO. 2287,
74TH CONG., 2D SESS. 16. 

WHILE SUCH LANGUAGE IN THE CONGRESSIONAL MATERIALS SUGGESTS THE
READING LIMITING SEC. 2(B) TO THE MEETING OF THE SELLER'S OWN
COMPETITION, IT IS, OF COURSE, NOT CONCLUSIVE SINCE NOT DIRECTED TO THE
SPECIFIC PROBLEM HERE PRESENTED.  NEITHER THE BRIEFS NOR THE ARGUMENTS
OF THE PARTIES NOR OF THE AMICI HAVE POINTED TO ANY MORE EXPLICIT
CONGRESSIONAL GUIDE TO RESOLUTION OF THE PRECISE QUESTION BEFORE US.
NO MORE CAN BE SAID THAN THAT THERE APPEARS TO BE NOTHING IN THE
LEGISLATIVE HISTORY TO DIRECTLY CONTRADICT WHAT WE DEEM TO BE THE
ORDINARY MEANING OF THE STATUTORY LANGUAGE OR TO INDICATE THAT A
DEFFERENT READING WAS SPECIFICALLY INTENDED; WHAT FEW GUIDES THERE ARE
SUPPORT THE INTERPRETATION WE HERE ADOPT. 

                                   IV. 

WE THUS TURN TO THE FUNDAMENTAL PURPOSES OF THE ROBINSON-PATMAN ACT
AND THE ANTITRUST LAWS IN GENERAL FOR GUIDANCE MORE IMPRESSIVE THAN
THAT FOUND IN THE RECITED LEGISLATIVE HISTORY. 

RELYING ON THE GENERAL PURPOSE OF THE ACT TO PROTECT THE SMALL
INDEPENDENT BUSINESSMAN, RESPONDENT SUN ARGUES THAT THE STATUTORY
POLICY SUPPORTS ITS PRICE-CUTTING ACTION, EVEN THOUGH DISCRIMINATORY,
BECAUSE THAT ACTION WAS DESIGNED TO PROTECT AND PRESERVE A SMALL
INDEPENDENT BUSINESSMAN, MCLEAN.  IT IS ASSERTED THAT THE LIMITED
RESOURCES AVAILABLE TO MCLEAN BAR HIS SURVIVAL IN A GASOLINE PRICE WAR
OF ANY DURATION.  MCLEAN'S SMALL MARGIN OF PROFIT, HIS RELATIVE
INABILITY TO LOWER HIS RETAIL PRICE BECAUSE A DIRECT FUNCTION OF THE
PRICE HE PAYS HIS SUPPLIER, HERE SUN, AND OTHER FACTORS MAKE HIS
CONTINUED INDEPENDENT EXISTENCE IN A PRESENT-DAY PRICE WAR WHOLLY
DEPENDENT UPON RECEIPT OF AID - IN THE FORM OF A PRICE REDUCTION - FROM
HIS SUPPLIER.  WHATEVER THEIR ACCURACY, THESE ASSERTIONS IGNORE THE
OTHER STATION OPERATORS - THE NEARBY SUN DEALERS COMPETING WITH MCLEAN
WHO WERE ALSO VITALLY INTERESTED IN THE PARTICULAR COMPETITIVE
STRUGGLE TO WHICH SUN WAS MOVED TO RESPOND BY MAKING PRICE CONCESSIONS
ONLY TO MCLEAN.  THESE DEALERS WERE HURT, IT WAS FOUND BELOW, BY SUN'S
DISCRIMINATORY PRICE TO MCLEAN AND THIS FINDING IS NOT CHALLENGED HERE
BY SUN.  THEIR SALES DECLINED APPRECIABLY AFTER THE DECEMBER 27, 1955,
CUT IN PRICE BY SUN TO MCLEAN, AND WHILE PERHAPS NOT ALL OF THE
ATTRITION IN SALES WAS ATTRIBUTABLE TO THE FACT THAT MCLEAN WAS THEREBY
ENABLED TO DROP HIS PRICE, CERTAIN OF THE DEALERS WERE ABLE TO IDENTIFY
CUSTOMERS WHO, APPARENTLY RETAINING A PREFERENCE FOR SUN PRODUCTS,
SHIFTED THEIR PATRONAGE FROM THE COMPETING SUN STATIONS TO MCLEAN. 

IT IS ASSERTED, IN RESPONSE, THAT THE HARM TO COMPETITORS OF MCLEAN
MUST BE SUFFERED AS A CONSEQUENCE OF THE VERY COMPETITION WHICH IS THE
PERVASIVE ESSENCE OF OUR OVERALL ANTITRUST POLICIES.  AS HAS BEEN SAID
IN ANOTHER CONTEXT: 

"IN ANY COMPETITIVE ECONOMY WE CANNOT AVOID INJURY TO SOME OF THE
COMPETITORS.  THE LAW DOES NOT, AND UNDER THE FREE ENTERPRISE SYSTEM IT
CANNOT, GUARANTEE BUSINESSMEN AGAINST LOSS.  THAT BUSINESSMEN LOSE
MONEY OR EVEN GO BANKRUPT DOES NOT NECESSARILY MEAN THAT COMPETITION
HAS BEEN INJURED."  H.R. REP. NO. 1422, 81ST CONG., 1ST SESS. 5-6. 

BUT THE MERE RECOGNITION THAT HARM SOMETIMES MAY BE A BY-PRODUCT OF
COMPETITION IS THE BEGINNING, NOT THE END, OF ANALYSIS.  WHATEVER THE
RESULT HERE, SOMEONE MAY BE HURT - TO ALLOW SUN TO PURSUE ITS
DISCRIMINATORY PRICING POLICY WILL, AS HAS BEEN INDICATED, HARM OTHER
SUN DEALERS WHO COMPETE WITH MCLEAN; TO PREVENT SUN FROM MAKING
DISCRIMINATORY PRICE ALLOWANCES, IT IS ASSERTED, WILL INJURE THE
MCLEANS OF THE COMPETITIVE WORLD.  THE ALTERNATIVE COMPETITIVE INJURY
TO MCLEAN, HOWEVER, IS NOT INEVITABLE; SUN MAY HAVE AVAILABLE TO IT
COURSES OF ACTION WHICH WOULD AFFORD PROTECTION TO BOTH MCLEAN AND THE
OTHER SUN STATIONS.  SEE PP. 526-527, INFRA.  EVEN IF THIS WERE NOT SO,
WE ARE NOT FREE ON THE BASIS OF OUR OWN ECONOMIC PREDILECTIONS TO MAKE
THE CHOICE BETWEEN HARM TO MCLEAN, ON THE ONE HAND, AND TO THE OTHER
SUN OPERATORS, ON THE OTHER, OR TO BALANCE THE COMPARATIVE DEGREE OF
INDIVIDUAL INJURY IN EACH INSTANCE; THAT CHOICE IS FORECLOSED BY THE
DETERMINATION IN THE STATUTE ITSELF IN FAVOR OF EQUALITY OF TREATMENT. 
IT IS THE VERY OPERATORS OF THE OTHER SUN STATIONS WHICH COMPETE WITH
MCLEAN WHO ARE THE DIRECT OBJECTS OF PROTECTION UNDER THE ROBINSON
PATMAN ACT.  THE BASIC PURPOSE OF THE ACT WAS TO INSURE THAT SUCH
PURCHASERS FROM A SINGLE SUPPLIER, SUN, WOULD NOT BE INJURED BY THAT
SUPPLIER'S DISCRIMINATORY PRACTICES.  TO BE SURE, THE SEC. 2(B)
EXCEPTION IS OPERATIVE NOTWITHSTANDING THE INCIDENCE OF DAMAGE TO
NONFAVORED PURCHASERS, STANDARD OIL CO. V. FEDERAL TRADE COMM'N, SUPRA,
BUT, GIVEN THE BASIC STATUTORY PURPOSE TO PREVENT PRECISELY SUCH
DAMAGE, THE DEFENSE DOES NOT BECOME APPLICABLE SIMPLY BECAUSE THE
FAVORED PURCHASER WOULD BE HURT ABSENT THE DISCRIMINATORY PRICE CUT TO
HIM.  IF A THREAT OF HARM TO THE FAVORED CUSTOMER WAS ITSELF ENOUGH,
UNDER SEC. 2(B), TO IMMUNIZE A DISCRIMINATION, THE SEC. 2(B) EXCEPTION
COULD LARGELY NULLIFY THE PROHIBITIONS OF SEC. 2(A). 

SIMILARLY, THE MERE FACT THAT MCLEAN WAS A SMALL RETAILER DOES NOT
MAKE THE GOOD FAITH DEFENSE APPLICABLE.  WHILE, AS NOTED, THE IMMEDIATE
AND GENERATING CAUSE OF THE ROBINSON-PATMAN AMENDMENTS MAY HAVE BEEN A
CONGRESSIONAL REACTION TO WHAT WERE BELIEVED TO BE PREDATORY USES OF
MASS PURCHASING POWER BY CHAIN STORES, NEITHER THE SCOPE NOR THE INTENT
OF THE STATUTE WAS LIMITED TO THAT PRECISE SITUATION OR SET OF
CIRCUMSTANCES.  CONGRESS SOUGHT GENERALLY TO OBVIATE PRICE
DISCRIMINATION PRACTICES THREATENING INDEPENDENT MERCHANTS AND
BUSINESSMEN, PRESUMABLY FROM WHATEVER SOURCE.  THE HOUSE COMMITTEE
DECLARED ITS "GUIDING IDEAL" IN PROPOSING THE AMENDMENTS TO BE "THE
PRESERVATION OF EQUALITY OF OPPORTUNITY AS FAR AS POSSIBLE TO ALL WHO
ARE USEFULLY EMPLOYED IN THE SERVICE OF DISTRIBUTION AND PRODUCTION
...  ."  H.R. REP. NO. 2287, 74TH CONG., 2D SESS. 6.  IN SHORT,
CONGRESS INTENDED TO ASSURE, TO THE EXTENT REASONABLY PRACTICABLE, THAT
BUSINESSMEN AT THE SAME FUNCTIONAL LEVEL WOULD START ON EQUAL
COMPETITIVE FOOTING SO FAR AS PRICE IS CONCERNED. 

AN EXAMPLE WILL BE HELPFUL.  ASSUME THAT A SINGLE STORE IN A LARGE
RETAIL GROCERY CHAIN REDUCES, WITHOUT THE BENEFIT OF ANY CORRESPONDING
REDUCTION IN PRICE FROM ITS SUPPLIER, THE PRICE OF A SINGLE AND WIDELY
ADVERTISED STAPLE FOOD PRODUCT.  IS IT TO BE SUPPOSED THAT THE CONGRESS
WHICH PASSED THE ACT WOULD VIEW THIS REDUCTION AS JUSTIFYING, UNDER
SEC. 2(B), ANOTHER SUPPLIER'S CUT IN HIS WHOLESALE PRICE OF THE SAME
PRODUCT TO A LARGE COMPETING RETAIL CHAIN OUTLET, WITHOUT THAT
SUPPLIER'S OFFERING THE SAME PRICE CONCESSION TO OTHER SMALLER RETAIL
OUTLETS WHICH COMPETE WITH BOTH CHAIN STORES?  EVEN ASSUMING THAT THE
SECOND CHAIN DID NOT PREDATORILY SEEK THE PRICE CONCESSION FROM ITS OWN
SUPPLIER, THERE CAN BE BUT ONE ANSWER TO THIS QUESTION UNDER THE
STATUTE SINCE ALLOWANCE OF SUCH A DISCRIMINATION WOULD NULLIFY THE VERY
EQUALITY WHICH IS SOUGHT TO BE PROTECTED BY THE ACT.  TO ALLOW THE SEC.
2(B) DEFENSE TO BE SO ASSERTED WOULD BE DIRECTLY CONTRARY TO THE INTENT
OF CONGRESS. 

STRIPPED OF THE INITIAL APPEAL ARISING FROM THE FACT THAT SUN WAS
ATTEMPTING TO PRESERVE, NOT A RETAIL CHAIN, BUT RATHER ITS OWN SMALL
DEALER, MCLEAN, THE INSTANT FACTS PRESENT, WE THINK, NO CRUCIAL
VARIATION FROM THE EXAMPLE GIVEN.    THE ARGUMENT THAT IF THE PROBLEM
ACTUALLY POSED BY "SMALL" MCLEAN COMPETING WITH "BIG" SUPER TEST WERE
PUT TO CONGRESS IT WOULD APPROVE THE COURSE FOLLOWED BY SUN IS NOT
PERSUASIVE.  EVEN IF SUCH CONGRESSIONAL APPROVAL MIGHT BE ASSUMED - A
PERHAPS UNWARRANTED CONCLUSION (FN11)  - IT IS CLEAR THAT CONGRESS DID
NOT WRITE OR PASS A STATUTE WHICH ALLOWED OR PROVIDED FOR DISTINCTION
BETWEEN THE POSITED GROCERY PRODUCT CASE AND THE ONE NOW BEFORE US.  TO
MAKE THE INCIDENCE OF THE SEC. 2(B) DEFENSE TURN ON THE RELATIVE
COMPETITIVE STRENGTH OF THE PARTICULAR FAVORED CUSTOMER VIS-A-VIS HIS
PRICE-CUTTING COMPETITOR IS NOT ONLY INAPPOSITE BUT WITHOUT STATUTORY
WARRANT.  THE ACT IS OF GENERAL APPLICABILITY AND PROHIBITS
DISCRIMINATIONS GENERALLY, SUBJECT ONLY TO DEFENSES NOT BASED UPON
SIZE.  COMPETITIVE ABILITY OR BUSINESS SIZE MAY PROPERLY BE A MEASURE
OF ANTITRUST APPLICATION IN OTHER CONTEXTS, BUT THERE IS NO BASIS FOR
READING SUCH A STANDARD INTO SEC. 2(B) OF THIS STATUTE. 

LIMITING INVOCATION OF THE SEC. 2(B) DEFENSE TO THOSE SITUATIONS IN
WHICH THE DISCRIMINATORY PRICE CUT IS MADE IN RESPONSE TO A LOWER PRICE
OF THE SELLER'S OWN COMPETITOR COMPORTS, WE THINK, NOT ONLY WITH THE
OBJECTIVES OF THE ROBINSON-PATMAN ACT BUT WITH THE GENERAL ANTITRUST
POLICY OF PRESERVING THE BENEFITS OF COMPETITION. 

TO ALLOW A SUPPLIER TO INTERVENE AND GRANT DISCRIMINATORY PRICE
CONCESSIONS DESIGNED TO ENABLE ITS CUSTOMERS TO MEET THE LOWER PRICE OF
A RETAIL COMPETITOR WHO IS UNAIDED BY HIS SUPPLIER WOULD DISCOURAGE
RATHER THAN PROMOTE COMPETITION.  SO LONG AS THE PRICE CUTTER DOES NOT
RECEIVE A PRICE "BREAK" FROM HIS OWN SUPPLIER, HIS LAWFUL REDUCTIONS IN
PRICE ARE PRESUMABLY A FUNCTION OF HIS OWN SUPERIOR MERIT AND
EFFICIENCY.  TO PERMIT A COMPETITOR'S SUPPLIER TO BRING HIS OFTEN
SUPERIOR ECONOMIC POWER TO BEAR NARROWLY AND DISCRIMINATORILY TO
DEPRIVE THE OTHERWISE RESOURCEFUL RETAILER OF THE VERY FRUITS OF HIS
EFFICIENCY AND CONVERT THE NORMAL COMPETITIVE STRUGGLE BETWEEN
RETAILERS INTO AN UNEQUAL CONTEST BETWEEN ONE RETAILER AND THE
COMBINATION OF ANOTHER RETAILER AND HIS SUPPLIER IS HARDLY AN ELEMENT
OF REASONABLE AND FAIR COMPETITION.  WE SEE NO JUSTIFICATION FOR SUCH A
RESULT IN SEC. 2(B).  RESTRICTION OF THE DEFENSE TO THOSE SITUATIONS IN
WHICH A SUPPLIER RESPONDS TO THE PRICE CONCESSIONS OF ITS OWN
COMPETITOR - ANOTHER SUPPLIER - MAINTAINS GENERAL COMPETITIVE
EQUITIES.  FAIRNESS DEMANDS NEITHER MORE NOR LESS.  WE DISCERN IN SEC.
2 NEITHER A PURPOSE TO INSULATE RETAILERS FROM LAWFUL AND NORMAL
COMPETITIVE PRESSURES GENERATED BY OTHER RETAILERS, NOR AN INTENT TO
AUTHORIZE SUPPLIERS, IN RESPONSE TO SUCH PRESSURES CREATED SOLELY AT
THE RETAIL LEVEL, TO PROTECT, DISCRIMINATORILY, SALES TO ONE CUSTOMER
AT THE EXPENSE OF OTHER CUSTOMERS. 

IT IS ARGUED, HOWEVER, THAT TO DENY SUN THE RIGHT TO REDUCE ITS
PRICES AS IT DID HERE IS TO IMPAIR PRICE FLEXIBILITY AND PROMOTE PRICE
RIGIDITY, THE VERY ANTITHESIS OF COMPETITION.  WE THINK THAT THE
CONTRARY IS THE CASE.  WHILE ALLOWANCE OF THE DISCRIMINATORY PRICE CUT
HERE MAY PRODUCE LOCALIZED AND TEMPORARY FLEXIBILITY, IT INEVITABLY
ENCOURAGES MAINTENANCE OF THE LONG-RANGE AND GENERALIZED PRICE RIGIDITY
WHICH THE DISCRIMINATION IN FACT PROTECTS.  SO LONG AS THE WHOLESALER
CAN MEET CHALLENGES TO HIS PRICING STRUCTURE BY WHOLLY LOCAL AND
INDIVIDUALIZED RESPONSES, IT HAS NO INCENTIVE TO ALTER ITS OVERALL
PRICING POLICY.  MOREOVER, AS INDICATED, THE LARGE SUPPLIER'S ABILITY
TO "SPOT PRICE" WILL DISCOURAGE THE ENTERPRISING AND RESOURCEFUL
RETAILER FROM SEEKING TO INITIATE PRICE REDUCTIONS ON HIS OWN.  SUCH
REASONING MAY BE PARTICULARLY APPLICABLE IN THE OLIGOPOLISTIC
ENVIRONMENT OF THE OIL INDUSTRY.  (FN12) 

WE SEE NO REASON TO PERMIT SUN DISCRIMINATORILY TO PIT ITS GREATER
STRENGTH AT THE SUPPLIER LEVEL AGAINST SUPER TEST, WHICH, SO FAR AS
APPEARS FROM THE RECORD, IS ABLE TO SELL ITS GASOLINE AT A LOWER PRICE
SIMPLY BECAUSE IT IS A MORE EFFICIENT MERCHANDISER, PARTICULARLY WHEN
SUPER TEST'S CHALLENGE AS AN "INDEPENDENT" MAY BE THE ONLY MEANINGFUL
SOURCE OF PRICE COMPETITION OFFERED THE "MAJOR" OIL COMPANIES, OF WHICH
SUN IS ONE. 

                    V. 

RESPONDENT SUN MAKES SEVERAL OTHER ARGUMENTS IN SUPPORT OF ITS
POSITION.  FIRST, IT ASSERTS THAT THE INTERPRETATION OF SEC. 2(B) URGED
HERE BY THE COMMISSION COMPLETELY IGNORES THE COMPETITIVE REALITIES OF
THE GASOLINE VENDING BUSINESS.  IN ESSENCE, SUN ARGUES THAT,
PRACTICALLY VIEWED, SUPER TEST WAS NOT MERELY A COMPETITOR OF MCLEAN,
BUT ALSO A COMPETITOR OF SUN.  OIL COMPANIES, WHETHER MAJOR OR MINOR,
INTEGRATED OR NONINTEGRATED, IT IS ASSERTED, COMPETE NOT AT THE
WHOLESALE OR JOBBER LEVEL, BUT ALMOST EXCLUSIVELY AT THE RETAIL LEVEL. 
(FN13)  ALL COMPETITION, SUN SAYS, IS DIRECTED TO SALES OF THE FINAL
PRODUCT - GASOLINE - TO THE MOTORING CONSUMER, AND ANYTHING THAT
THREATENS TO REDUCE THE SALES OF A BRANDED GASOLINE AT THE RETAILER'S
PUMP IS A THREAT TO THE SUPPLIER WHOSE BUSINESS IS A DIRECT FUNCTION OF
ITS STATIONS' MARKETING SUCCESS OR FAILURE.  IT IS CONTENDED THAT THE
INDIVIDUAL STATION IS BUT A "CONDUIT" FOR THE SUPPLIER AND THAT SUN IS
THUS IN COMPETITION WITH SUPER TEST, CONSIDERED EVEN ONLY AS A
RETAILER.  (FN14) 

IN A VERY REAL SENSE, HOWEVER, EVERY RETAILER IS BUT A "CONDUIT" FOR
THE GOODS WHICH IT SELLS AND EVERY SUPPLIER COULD, IN THE SAME SENSE,
BE CONSIDERED A COMPETITOR OF RETAILERS SELLING COMPETING GOODS.  WE
ARE SURE CONGRESS HAD NO SUCH BROAD CONCEPTION OF COMPETITION IN MIND
WHEN IT ESTABLISHED THE SEC. 2(B) DEFENSE AND, CERTAINLY, IT INTENDED
NO SPECIAL EXCEPTION FOR THE PETROLEUM INDUSTRY.  IT IS DIFFICULT TO
PERCEIVE CONVINCING REASONS RATIONALLY CONFINING THE THRUST OF
RESPONDENT'S ARGUMENT TO AN AREA NARROW ENOUGH TO PRECLUDE EFFECTIVE
EMASCULATION OF THE PROHIBITIONS ON DISCRIMINATION CONTAINED IN SEC.
2(A).  ONLY DIFFERENCES OF DEGREE DISTINGUISH THE SITUATION OF THE
GASOLINE STATION OPERATOR FROM THAT OF MANY OTHER RETAIL OUTLETS, AND
IN NUMEROUS INSTANCES THE DISTINCTION, IF ANY, IS SLIGHT.  THE
"CONDUIT" THEORY CONTAINS NO INHERENT LIMITATIONS AND ITS ACCEPTANCE
WOULD SO EXPAND THE SEC. 2(B) DEFENSE AS TO EFFECT A RETURN TO THE
BROADER "MEETING COMPETITION" PROVISION OF THE CLAYTON ACT, WHICH THE
ROBINSON-PATMAN ACT AMENDMENTS SUPERSEDED. 

SUN ALSO ARGUES THAT THE EFFECT OF A DECISION HOLDING THE SEC. 2(B)
DEFENSE UNAVAILABLE TO IT IN THESE CIRCUMSTANCES WILL BE TO PROLONG AND
AGGRAVATE THE DESTRUCTIVE PRICE WARS WHICH PERIODICALLY REOCCUR IN THE
MARKETING OF GASOLINE.  WHETHER RELEVANT OR NOT, THIS CONTENTION IS
BEST PUT WHOLLY TO ONE SIDE.  SUCH PRICE WARFARE APPEARS TO BE CAUSED
BY A NUMBER OF BASIC FACTORS, NOT THE LEAST OF WHICH ARE INDUSTRY
OVERCAPACITY AND THE PROPENSITY OF SOME MAJOR REFINERS TO ENGAGE IN SO
CALLED "DUAL MARKETING" UNDER WHICH, IN ORDER TO INCREASE THEIR OVERALL
SALES AND UTILIZE IDLE FACILITIES, THEY NOT ONLY SELL BRANDED GASOLINE
TO THEIR OWN DEALERS BUT ALSO SELL UNBRANDED GASOLINE TO INDEPENDENT
RETAILERS OR JOBBERS, OFTEN AT A LOWER PRICE.  SEE.  S. REP. NO. 2810,
84TH CONG., 2D SESS. 16-19.  WHATEVER WE DO HERE CAN NEITHER ELIMINATE
NOR MITIGATE THE MAJOR ECONOMIC FORCES WHICH ARE PRODUCTIVE OF THESE
PRICE WARS.  MOREOVER, IT IS WHOLLY UNCLEAR WHETHER ALLOWANCE OF THE
PRICE DISCRIMINATION PROLONGS OR SHORTENS THE WAR'S DURATION.  (IT
MIGHT BE NOTED THAT THE WAR WAS NOT NARROWLY CONTAINED BY SUN'S ACTIONS
HERE.)  THERE ARE LOGICAL ARGUMENTS ON BOTH SIDES OF THE QUESTION AND
NONE ARE WHOLLY PERSUASIVE.  EXTENSIVE DISCUSSION OF THE VARIOUS
REASONING WOULD SERVE NO USEFUL PURPOSE.  AS ONE STUDY CONCLUDES AFTER
CANVASSING THE CONTENTIONS:  "ONE SIMPLY CANNOT BE CERTAIN."  DE
CHAZEAU AND KAHN, INTEGRATION AND COMPETITION IN THE PETROLEUM INDUSTRY
(1959), 481; AND SEE GENERALLY, ID., PP. 477-483; S. REP. NO. 2810,
84TH CONG., 2D SESS. 19-23. 

RESPONDENT URGES THAT THE INTERPRETATION OF SEC. 2(B) WHICH WE HAVE
ADOPTED UNFAIRLY FORCES ITS SMALL RETAILER, MCLEAN, TO BEAR ALONE WHAT
TO HIM IS THE ECONOMICALLY INSUFFERABLE BURDEN OF THE ENTIRE RETAIL
PRICE REDUCTION.  THIS, HOWEVER, ERRONEOUSLY POSES THE CHOICE AS MERELY
TWOFOLD - AID TO THE RETAILER BY AN UNLAWFULLY DISCRIMINATORY PRICE
REDUCTION, OR NO AID AT ALL - AND MISCONCEIVES THE AVAILABILITY OF
OTHER ALTERNATIVES. 

PRELIMINARILY, IT MUST BE RECOGNIZED THAT WE ARE NOT DEALING HERE
WITH THE SITUATION IN WHICH ONE SUPPLIER REDUCES ITS PRICES AND ANOTHER
SUPPLIER THEREUPON REDUCES ITS PRICES TO PREVENT ITS CUSTOMER FROM
SHIFTING HIS BUSINESS TO THE COMPETING SUPPLIER; THIS IS THE MORE
NORMAL CIRCUMSTANCE AND THE SEC. 2(B) DEFENSE IS USUALLY AVAILABLE. 

EVEN IN THE LIMITED SITUATION WITH WHICH WE HERE DEAL - IN WHICH THE
COMPETING RETAILER CUTS HIS PRICE WITHOUT HIS SUPPLIER'S AID - SUN, AS
A WHOLESALER, MAY REDUCE ITS PRICE UNIFORMLY AND NONDISCRIMINATORILY TO
COMPETING PURCHASERS FROM IT SO AS TO PRECLUDE THE PROBABLE INCIDENCE
OF THE SUBSTANTIAL ANTICOMPETITIVE EFFECTS UPON WHICH VIOLATION OF SEC.
2(A) IS HERE GROUNDED.  SUN RECOGNIZES, AS IT MUST, THAT IT HAS THIS
CHOICE, BUT ARGUES THAT IN ORDER TO ELIMINATE THE POSSIBILITY OF HAVING
EVEN A BROAD PRICE CUT DEEMED ILLEGAL UNDER SEC. 2(A), IT WOULD OF
NECESSITY HAVE TO EXTEND THE BENEFITS OF THE CONCESSIONS TO ALL OF ITS
DEALERS IN AN UNWARRANTEDLY WIDE GEOGRAPHIC AREA, PERHAPS NATIONWIDE. 
THIS, IT ASSERTS, IS REQUIRED BECAUSE WHATEVER LINE IT SEEKS TO DRAW,
THERE WILL INEVITABLY BE SOME DEALER WHO BECAUSE OF GEOGRAPHIC
PROXIMITY WILL BE DEEMED TO HAVE BEEN ILLEGALLY DISCRIMINATED AGAINST. 
THE MERE EXISTENCE OF A COMPETITIVE CONTINUUM, HOWEVER, DOES NOT
REQUIRE THAT MARKET LIMITS BE INDEFINITELY EXTENDED WITH ABSURD RESULTS
IN THE FORM OF UNWARRANTED NATIONWIDE OR OTHERWISE OVERLY BROAD
MEASURES OF COMPETITIVE IMPACT.  IN APPRAISING THE EFFECTS OF ANY PRICE
CUT OR THE CORRESPONDING RESPONSE TO IT, BOTH THE FEDERAL TRADE
COMMISSION AND THE COURTS MUST MAKE REALISTIC APPRAISALS OF RELEVANT
COMPETITIVE FACTS.  INVOCATION OF MECHANICAL WORD FORMULAS CANNOT BE
MADE TO SUBSTITUTE FOR ADEQUATE PROBATIVE ANALYSIS.  (FN15)  IN CASES
IN WHICH THE ECONOMIC FACTS SO INDICATE, CAREFULLY DRAWN AREA
SUBMARKETS MAY BE THE PROPER MEASURE OF COMPETITIVE IMPACT AMONG
PURCHASERS.  (FN16) 

ALTERNATIVELY, SINCE SUNOCO STATIONS, THOUGH LARGELY INDEPENDENTLY
OWNED, OPERATE UNDER LEASING, MERCHANDISING, ADVERTISING AND OTHER
POLICIES SET BY SUN, OTHER OPPORTUNITIES ARE AVAILABLE TO SUN TO
STRENGTHEN ITS DEALERS IN COMPETING WITH OTHER STATIONS. 

REJECTING THESE AND OTHER ACTIONS (FN17) AS REASONABLE BUSINESS
ALTERNATIVES, (FN18) SUN ASSERTS THAT THE ONLY COURSE REALISTICALLY
OPEN TO IT IS TO CHANGE THE NATURE OF ITS DISTRIBUTION SYSTEM BY
EFFECTING SOME SORT OF FURTHER FORWARD VERTICAL INTEGRATION, ALL AT THE
EXPENSE AND TO THE DETRIMENT OF THE VERY INDEPENDENT MERCHANTS - THE
INDIVIDUAL STATION OPERATORS - WHOM THE ROBINSON-PATMAN ACT WAS
INTENDED TO PRESERVE AND PROTECT.  IT MAY BE THAT ACTIVE PURSUIT OF
SUCH A COURSE BY SUN, INVOLVING THE ELIMINATION OF INDEPENDENT RETAIL
DEALERS, WOULD BE A GREATER EVIL THAN ALLOWANCE OF DISCRIMINATIONS SUCH
AS ARE HERE INVOLVED; SUCH A BROAD DETERMINATION OF ECONOMIC POLICY,
HOWEVER, IS NOT FOR US TO MAKE HERE.  WE ARE NOT INTERPRETING A BROADLY
PHRASED CONSTITUTIONAL PROVISION, BUT RATHER A NARROWLY WORDED
STATUTORY ENACTMENT WITH SPECIFIC PROHIBITIONS AND SPECIFIC
EXCEPTIONS.  COMPARE STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293,
311-312. 

IN ANY EVENT, WE SEE NO EVIDENCE THAT SUCH FORWARD INTEGRATION IS
INEVITABLE OR REQUIRED AS THE ONLY FEASIBLE ALTERNATIVE.  IT HAS NOT
YET OCCURRED AND SUPPLIERS SUCH AS SUN HAVE DISCERNED SOUND AND
APPARENTLY PERSUASIVE REASONS FOR HERETOFORE REJECTING DIRECT OWNERSHIP
AND OPERATION OF THEIR STATIONS; IT IS WHOLLY REASONABLE TO BELIEVE
THAT SUCH INCENTIVES PERSIST. 

HAVING CONSCIOUSLY CHOSEN NOT TO EFFECT DIRECT DISTRIBUTION THROUGH
WHOLLY OWNED AND OPERATED STATIONS, SUN CANNOT NOW CLAIM FOR ITSELF THE
BENEFITS OF SUCH A SYSTEM AND SEEK TO INJECT ITSELF AS A SUPPLIER INTO
WHAT ON THIS RECORD APPEARS AS A STRUGGLE WHOLLY BETWEEN RETAILERS,
WHEN SUCH INTERFERENCE FAVORS ONE OF SUN'S CUSTOMERS AT THE EXPENSE OF
OTHERS. 

THUS, CONSISTENT WITH OVERALL ANTITRUST POLICY AND THE LANGUAGE AND
VERY PURPOSES OF THE ROBINSON-PATMAN AMENDMENTS, WE CONCLUDE THAT SEC.
2(B) OF THE ACT CONTEMPLATES THAT THE LOWER PRICE WHICH MAY BE MET BY
ONE WHO WOULD DISCRIMINATE MUST BE THE LOWER PRICE OF HIS OWN
COMPETITOR; SINCE THERE IS IN THIS RECORD NO EVIDENCE OF ANY SUCH PRICE
HAVING BEEN SET, OR OFFERED TO ANYONE, BY ANY COMPETITOR OF SUN, WITHIN
THE MEANING OF SEC. 2(B), (FN19) SUN'S CLAIM TO THE BENEFIT OF THE GOOD
FAITH MEETING OF COMPETITION DEFENSE MUST FAIL.  ACCORDINGLY, THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  38 STAT. 730, AS AMENDED, 49 STAT. 1526, 15 U.S.C. SEC. 13(A). 

FN2  49 STAT. 1526, 15 U.S.C. SEC. 13(B). 

FN3  IN 1956, SUN HAD A TOTAL OF APPROXIMATELY 6,980 DOMESTIC
DEALERS.  IN 1954, THE YEAR PRECEDING THE ALLEGED VIOLATION, SUN WAS
THE THIRTEENTH LARGEST OF THE INTEGRATED OIL COMPANIES.  H.R. REP. NO.
1423, 84TH CONG., 1ST SESS. 23.  AMONG UNITED STATES INDUSTRIAL
CORPORATIONS OF ALL TYPES, IT RANKED FORTY-FOURTH IN ASSETS, THIRTY
SIXTH IN NET PROFITS, AND THIRTY-EIGHTH IN SALES.  S. REP. NO. 2810,
84TH CONG., 2D SESS. 7. 

FN4  DURING THE PERIOD FROM JULY THROUGH NOVEMBER 1955, MCLEAN'S
MONTHLY SALES IN GALLONS VARIED FROM A HIGH OF ABOUT 7,400 (JULY) TO A
LOW OF APPROXIMATELY 5,900 (NOVEMBER).  MCLEAN CUT HIS PRICE ON
DECEMBER 27, 1955; HIS DECEMBER SALES WERE 8,300 GALLONS.  HIS SALES IN
JANUARY 1956 JUMPED TO OVER 32,000 GALLONS AND CONTINUED AT ABOUT THE
SAME RATE INTO FEBRUARY UNTIL HE DISCONTINUED BUSINESS. 

IN JULY 1955, THE MONTH FOLLOWING ITS OPENING, SUPER TEST SOLD JUST
OVER 5,000 GALLONS OF "REGULAR" GASOLINE AT ITS JACKSONVILLE STATION;
ITS MONTHLY SALES OF "REGULAR" THEREAFTER VARIED FROM ABOUT 10,700
GALLONS (SEPTEMBER) TO SLIGHTLY UNDER 19,000 (DECEMBER).  IN JANUARY
AND FEBRUARY 1956, SUPER TEST'S SALES OF REGULAR EXCEEDED 61,000 AND
67,000 GALLONS, RESPECTIVELY.    FN5  38 STAT. 719, AS AMENDED BY 52
STAT. 111, 15 U.S.C. SEC. 45. 

FN6  SEE, E.G., NOTE, 62 COL. L. REV. 171 (1962); NOTE, 1962 DUKE
L.J. 300; NOTE, 75 HARV.  L. REV. 429 (1961). 

FN7  WERE IT OTHERWISE, I.E., IF IT APPEARED EITHER THAT SUPER TEST
WERE AN INTEGRATED SUPPLIER-RETAILER, OR THAT IT HAD RECEIVED A PRICE
CUT FROM ITS OWN SUPPLIER - PRESUMABLY A COMPETITOR OF SUN - WE WOULD
BE PRESENTED WITH A DIFFERENT CASE, AS TO WHICH WE HEREIN NEITHER
EXPRESS NOR INTIMATE ANY OPINION. 

FN8  SECTION 2(A) PROVIDES IN MORE EXTENSIVE PART: 

"THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY, WHERE EITHER OR ANY OF THE PURCHASES INVOLVED IN SUCH
DISCRIMINATION ARE IN COMMERCE, WHERE SUCH COMMODITIES ARE SOLD FOR
USE, CONSUMPTION, OR RESALE WITH 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  ...  ." 

FN9  SECTION 2(B) PROVIDES IN FULL TEXT: 

"UPON PROOF BEING MADE, AT ANY HEARING ON A COMPLAINT UNDER THIS
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." 

FN10  A READING OF SEC. 2(B) SUCH AS SUN CONTENDS FOR WOULD ALSO MAKE
IT DIFFICULT, IF NOT IMPOSSIBLE, TO READ SENSIBLY THE SECTION'S
REFERENCE TO THE "SERVICES OR FACILITIES" OF A COMPETITOR. 

FN11  WHILE SUBSEQUENT LEGISLATIVE MATERIALS ARE NEITHER APPROPRIATE
NOR RELEVANT GUIDES TO INTERPRETATION OF PRIOR ENACTMENTS, IT IS
INTERESTING TO NOTE THAT A SENATE SELECT COMMITTEE ON SMALL BUSINESS,
REPORTING IN 1956 ON A NEW JERSEY GASOLINE PRICE WAR, CONCLUDED THAT
THE FEDERAL TRADE COMMISSION SHOULD ENFORCE THE ACT AGAINST "ALL
INSTANCES OF PRICE DISCRIMINATION," THAT SUCH ACTION MIGHT HAVE STOPPED
THE PRICE WAR IN "ITS INCIPIENCY," AND THAT THE SEC. 2(B) DEFENSE
SHOULD NOT BE AVAILABLE TO PROTECT A SUPPLIER WHO DISCRIMINATORILY
LOWERED HIS PRICE "NOT FOR THE PURPOSE OF MEETING THE EQUALLY LOW PRICE
OF A COMPETITOR BUT, RATHER, TO ENABLE SOME OF HIS DEALERS TO MEET THE
PRICES CHARGED BY COMPETITIVE GASOLINE RETAILERS."  S. REP.  NO. 2810,
84TH CONG., 2D SESS. 28-29. 

FN12  SEE GENERALLY H.R. REP. NO. 1423, 84TH CONG., 1ST SESS.; SEE
NOTE, 29 U. OF CHI.  L. REV. 355, 365-366 (1962). 

FN13  IT APPEARS THAT THERE MAY BE SOME COMPETITION, AT LEAST AMONG
THE "MAJOR" OIL COMPANIES, TO WIN THE MORE EFFICIENT JOBBERS AND
RETAILERS TO DISTRIBUTION OF THEIR BRANDS OF GASOLINE; A SIMILAR
COMPETITION MAY EXIST FOR PREFERRED LOCATIONS. 

FN14  THE "LOWER OFFER" WHICH, UNDER THIS ANALYSIS, SUN WAS MEETING
BY ITS PRICE CUT TO MCLEAN WAS THE RETAIL PRICE POSTED BY SUPER TEST. 
OBVIOUSLY, TO THE EXTENT THAT UNDER ANY SUCH THEORY THE SUPPLIER
ATTEMPTED TO SET, OR WAS RESPONSIBLE FOR SETTING, THE RETAIL PRICE,
THERE WOULD BE INHERENT ANTITRUST PROBLEMS ARISING FROM POSSIBLE
EXISTENCE OF ILLEGAL PRICE-FIXING AGREEMENTS. 

FN15  CF. AMERICAN OIL CO., - F.T.C. - , F.T.C. DKT. NO. 8183, CCH
TRADE REG. REP. PARA. 15,961 (JUNE 27, 1962)(DISSENTING OPINION OF
COMMISSIONER ELMAN). 

FN16 NOTHING WE SAY IN THIS CASE - INVOLVING INJURY ONLY TO SO-CALLED
"SECONDARY-LINE" COMPETITION, THAT IS, COMPETITION AMONG BUYERS - IS
INCONSISTENT WITH FEDERAL TRADE COMM'N V. ANHEUSER-BUSCH, INC., 363
U.S. 536, IN WHICH, IN THE CONTEXT OF ASSERTED INJURY TO "PRIMARY-LINE"
COMPETITION, THAT IS, COMPETITION WITH THE SELLER, IT WAS HELD THAT A
"DISCRIMINATION" UNDER SEC. 2(A) OF THE ACT COMPREHENDS A "DIFFERENCE
IN PRICE" AMONG EVEN NON-COMPETING PURCHASERS, THE LEGALITY OR
ILLEGALITY OF WHICH DEPENDS UPON WHETHER OR NOT THERE IS LIKELY TO BE
SUBSTANTIAL INJURY TO COMPETITION AMONG SELLERS. 

FN17  SINCE SUN MADE NO ATTEMPT HERE TO UTILIZE A SO-CALLED
"FEATHERED" DISCOUNT TO ITS DEALERS, UNDER WHICH THE AMOUNT OF THE
PRICE ALLOWANCE DIMINISHES AS IT REACHES STATIONS FURTHER AWAY FROM THE
CENTER OF THE PRICE WAR, WE NEED NOT EXPRESSLY PASS UPON SUCH
PRACTICE.  HOWEVER, IT MAY BE NOTED THAT A PROPERLY DESIGNED AND
LIMITED PRICE REDUCTION SYSTEM FASHIONED IN SUCH A MANNER MIGHT, UNDER
APPROPRIATE CIRCUMSTANCES, BE FOUND TO HAVE OBVIATED SUBSTANTIAL
COMPETITIVE HARM TO THE OTHER SUN DEALERS AND THEREBY NEGATED A
VIOLATION OF SEC. 2(A) SUCH AS IS HERE CHARGED.  OF COURSE, IMPROPERLY
DESIGNED OR TOO SHARPLY DRAWN "FEATHERING" GRADATIONS MAY PRODUCE
PRECISELY THE SAME EFFECT AS NO GRADATION AT ALL, AND CONSEQUENTLY FALL
WITHIN THE SAME BAN AS AN OUTRIGHT ILLEGAL DISCRIMINATION. 

FN18  INSOFAR AS SUN IS FREE TO PURSUE CERTAIN ALTERNATIVE COURSES OF
ACTION, IT MAY CONVERT WHAT WAS A COMPETITIVE STRUGGLE SIMPLY AT THE
RETAIL LEVEL INTO ONE INVOLVING A SUPPLIER.  BUT, BY DEFINITION, SUN
WILL NOT HAVE ACTED IN SUCH A MANNER AS TO PRODUCE SUBSTANTIAL
ANTICOMPETITIVE EFFECTS AT THE SECONDARY LEVEL, I.E., AMONG SUN'S
CUSTOMERS.  MOREOVER, NOT ONLY WILL THERE BE NO PRICE CUT BY SUN AT THE
EXPENSE OF NONFAVORED DEALERS, BUT THE BROADER NATURE OF THE RESPONSE
REQUIRED WILL SERVE AS AN INHIBITION ON UTILIZATION OF PRICE REDUCTIONS
TO PURSUE ESSENTIALLY ANTICOMPETITIVE OBJECTIVES AND WILL PRECLUDE
UNDUE RESTRAINT UPON THE ENTERPRISING RETAILER WHO IS WILLING, AND
PRESUMABLY ABLE, TO LOWER HIS PRICE WITHOUT THE AID OF HIS SUPPLIER. 

FN19  IN THIS POSTURE OF THE CASE, WE FIND IT UNNECESSARY TO PASS
UPON THE COMMISSION'S APPARENTLY ALTERNATIVE THEORY THAT A LOWER
COMPETITIVE OFFER TO MCLEAN HIMSELF WAS A PREREQUISITE TO SUN'S
INVOCATION OF THE SEC. 2(B) DEFENSE. 

SEPARATE MEMORANDUM OF MR. JUSTICE HARLAN, IN WHICH MR. JUSTICE
STEWART JOINS. 

I AGREE WITH THE CONCLUSION REACHED BY THE COURT THAT, ON THE PRESENT
RECORD, SUN HAS FAILED TO MAKE OUT A DEFENSE UNDER SEC. 2(B) OF THE
CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT. 

HOWEVER, INSTEAD OF REVERSING THE JUDGMENT BELOW I WOULD REMAND THE
CASE TO THE COMMISSION SO AS TO AFFORD OPPORTUNITY FOR THE INTRODUCTION
OF FURTHER EVIDENCE.  THE COURT RECOGNIZES, ANTE, P. 512, NOTE 7, THAT
A DIFFERENT CASE WOULD BE PRESENTED "IF IT APPEARED EITHER THAT SUPER
TEST WERE AN INTEGRATED SUPPLIER-RETAILER, OR THAT IT HAD RECEIVED A
PRICE CUT FROM ITS OWN SUPPLIER - PRESUMABLY A COMPETITOR OF SUN."  IT
IS TRUE THAT THE BURDEN OF PROOF IN ESTABLISHING A SEC. 2(B) DEFENSE
RESTS ON SUN, AND THAT IT MUST THEREFORE BEAR THE RESPONSIBILITY FOR
ANY GAPS IN THE RECORD.  BUT IT IS EQUALLY TRUE THAT WE ARE HERE
DEALING WITH AN EXTREMELY DIFFICULT QUESTION ARISING UNDER A SINGULARLY
OPAQUE AND ELUSIVE STATUTE. 

IF, AS THE COURT ACKNOWLEDGES, IT MAY BE IMPORTANT TO KNOW WHETHER
SUPER TEST WAS INTEGRATED, OR WHETHER IT RECEIVED A PRICE CUT FROM ITS
SUPPLIER, I SEE NO REASON TO FORECLOSE DEVELOPMENT OF THE RELEVANT
FACTS IN THIS PROCEEDING.  THIS CASE IS ONE OF FAR-REACHING IMPORTANCE
IN THE ADMINISTRATION OF THE ROBINSON-PATMAN ACT, AND YET BY OUR FINAL
DISPOSITION OF IT WE LEAVE UNANSWERED AS MANY QUESTIONS AS WE HAVE
RESOLVED.  IF A MORE COMPLETE RECORD WOULD PERMIT RESOLUTION OF THESE
ADDITIONAL QUESTIONS, WE DO BOTH LITIGANTS AN INJUSTICE BY REFUSING TO
ALLOW SUCH A RECORD TO BE MADE.  FOR THE COMMISSION, WHICH HAS HAD
TROUBLE MAKING UP ITS OWN MIND IN THIS AREA,* HAS AS MUCH INTEREST AS
THE RESPONDENT IN DEFINITIVE ANSWERS TO THESE PERPLEXING PROBLEMS. 

*AT ONE TIME, AS INDICATED BY VARIOUS LETTERS WRITTEN BY THE THEN
DIRECTOR OF THE BUREAU OF INVESTIGATION IN 1954, THE COMMISSION TOOK
THE POSITION THAT THE SEC. 2(B) DEFENSE WAS AVAILABLE UNDER THE FACTS
BEFORE US TODAY.  SEE HEARINGS ON DISTRIBUTION PROBLEMS BEFORE
SUBCOMMITTEE NO. 5 OF THE HOUSE SELECT COMMITTEE ON SMALL BUSINESS,
84TH CONG., 1ST SESS.  459-463, 852-853 (1955). 
..END :
























WILLIAMS V. ZUCKERT 371 U.S. 531 


NO. 133.  ARGUED DECEMBER 13, 1962.  - DECIDED JANUARY 14, 1963.  - 111
U.S. APP. D.C. 294, 296 F.2D 416, CERTIORARI DISMISSED. 


CERTIORARI WAS GRANTED IN THIS CASE TO CONSIDER WHETHER, UNDER THE
PRINCIPLES ENUNCIATED IN VITARELLI V. SEATON, 359 U.S. 535, THE
DISCHARGE OF PETITIONER, A VETERAN WITH CIVIL SERVICE STATUS, FROM THE
UNITED STATES AIR FORCE FOR ALLEGED MISCONDUCT WAS VITIATED BY AN
IMPROPER DENIAL OF A RIGHT TO CROSS-EXAMINATION AT HIS HEARING BEFORE
THE CIVIL SERVICE COMMISSION ON APPEAL PURSUANT TO SEC. 14 OF THE
VETERANS' PREFERENCE ACT AND THE COMMISSION'S REGULATIONS THEREUNDER. 
REVIEW OF THE RECORD AND ARGUMENT OF COUNSEL, HOWEVER, DISCLOSED THAT
PETITIONER'S REQUEST FOR CROSS-EXAMINATION OF WITNESSES WAS NEITHER
TIMELY NOR IN CONFORMITY WITH THE APPLICABLE REGULATIONS.  HELD: THE
VITARELLI ISSUE IS NOT ADEQUATELY PRESENTED BY THIS CASE, AND THE WRIT
OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED.  PP. 531-533. 
(BUT SEE 372 U.S. 765.) 

WILLIAMS V. ZUCKERT, SECRETARY OF THE AIR FORCE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

PETITIONER, A VETERAN WITH CIVIL SERVICE STATUS, WAS DISCHARGED FROM
HIS CIVILIAN POSITION WITH THE UNITED STATES AIR FORCE FOR ALLEGED
MISCONDUCT.  SUBSEQUENT TO UNSUCCESSFUL PROSECUTION OF APPROPRIATE
ADMINISTRATIVE PROCEEDINGS FOR REVIEW OF HIS DISCHARGE, HE BROUGHT SUIT
IN THE DISTRICT COURT, WHICH GRANTED SUMMARY JUDGMENT TO THE RESPONDENT
AIR FORCE.  THE COURT OF APPEALS AFFIRMED.  111 U.S. APP. D.C. 294, 296
F.2D 416.  CERTIORARI WAS GRANTED, 369 U.S. 884, TO CONSIDER WHETHER,
UNDER THE PRINCIPLES ENUNCIATED BY THIS COURT IN VITARELLI V. SEATON,
359 U.S. 535, 544-545, PETITIONER'S DISCHARGE WAS VITIATED BY AN
IMPROPER DENIAL OF A RIGHT TO CROSS-EXAMINE AT HIS HEARING BEFORE THE
CIVIL SERVICE COMMISSION ON APPEAL PURSUANT TO SEC. 14 OF THE VETERANS'
PREFERENCE ACT OF 1944 (FN1) AND THE IMPLEMENTING REGULATIONS (FN2)
PROMULGATED BY THE COMMISSION. 

REVIEW OF THE RECORD AND ARGUMENT OF COUNSEL DISCLOSE, HOWEVER, THAT
THE VITARELLI ISSUE IS NOT ADQUATELY PRESENTED BY THIS CASE;
ACCORDINGLY, WE CONCLUDE THAT THE WRIT OF CERTIORARI SHOULD BE
DISMISSED AS IMPROVIDENTLY GRANTED. 

ALTHOUGH AMPLY NOTIFIED IN ADVANCE OF THE NATURE OF THE CHARGES, THE
NAMES OF THE WITNESSES WHOSE AFFIDAVITS HAD SUPPLIED THE FACTUAL BASIS
FOR HIS DISMISSAL, AND THE DATE OF THE HEARING, NEITHER PETITIONER NOR
HIS COUNSEL MADE ANY REQUEST, PRIOR TO THE HEARING, OF THE AIR FORCE,
OF THE COMMISSION OR ITS EXAMINER, OR OF THE WITNESSES THEMSELVES, FOR
THEIR APPEARANCE FOR CROSS-EXAMINATION.  THE REQUEST FOR PRODUCTION OF
THE WITNESSES, MADE ONLY AT THE HEARING BY PETITIONER'S COUNSEL, WAS
NEITHER TIMELY NOR IN CONFORMITY WITH THE APPLICABLE REGULATIONS, WHICH
CONTEMPLATE THAT THE PARTY DESIRING THE PRESENCE OF WITNESSES, EITHER
FOR DIRECT EXAMINATION OR CROSS-EXAMINATION, SHALL ASSUME THE INITIAL
BURDEN OF PRODUCING THEM.  (FN3) 

HAD PETITIONER DISCHARGED THIS BURDEN BY TIMELY ATTEMPT TO OBTAIN THE
ATTENDANCE OF THE DESIRED WITNESSES AND THROUGH NO FAULT OF HIS OWN
FAILED, THEN, TO GIVE MEANING TO THE LANGUAGE CONTAINED IN THE
REGULATIONS AFFORDING THE "OPPORTUNITY  ...  FOR THE CROSS-EXAMINATION
OF WITNESSES," (FN4) THE AIR FORCE WOULD HAVE BEEN REQUIRED, UPON
PROPER AND TIMELY REQUEST, TO PRODUCE THEM, SINCE THEY WERE READILY
AVAILABLE AND UNDER THE AIR FORCE'S CONTROL.  VITARELLI V. SEATON, 359
U.S. 535, 544-545, WOULD SO REQUIRE.  HERE, HOWEVER, THOUGH PETITIONER
SEEKS TO RELY UPON THE REGULATIONS, HE HAS FAILED TO BRING HIMSELF
WITHIN THEM. 

PETITIONER WAS ACCORDED AMPLE OPPORTUNITY TO PRESENT HIS OWN CASE AND
REBUT THE CHARGES AGAINST HIM AT SEVERAL LEVELS OF THE PROCEEDINGS
BEFORE THE AIR FORCE AND THE CIVIL SERVICE COMMISSION. 

THE WRIT OF CERTIORARI IS DISMISSED. 

FN1  58 STAT. 390, AS AMENDED, 5 U.S.C. SEC. 863. 

FN2  5 CFR, PART 22. 

FN3  5 CFR SEC. 22.607 TITLED "APPEARANCE OF WITNESSES," PROVIDES: 

"THE COMMISSION IS NOT AUTHORIZED TO SUBPOENA WITNESSES.  THE
EMPLOYEE AND HIS DESIGNATED REPRESENTATIVE, AND THE EMPLOYING AGENCY,
MUST MAKE THEIR OWN ARRANGEMENTS FOR THE APPEARANCE OF WITNESSES." 

FN4  5 CFR SEC. 22.603 PROVIDES: 

"OPPORTUNITY WILL BE AFFORDED FOR THE INTRODUCTION OF EVIDENCE
(INCLUDING TESTIMONY AND STATEMENTS BY THE EMPLOYEE AND HIS DESIGNATED
REPRESENTATIVE AND WITNESSES AND BY REPRESENTATIVES OF THE AGENCY AND
ITS WITNESSES) AND FOR THE CROSS-EXAMINATION OF WITNESSES." 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

AFTER 16 YEARS OF FAITHFUL GOVERNMENT SERVICE, PETITIONER HAS BEEN
BRANDED WITH A STIGMA AND DISCHARGED ON THE STRENGTH OF THREE
AFFIDAVITS.  THOUGH HE ASKED THAT THESE AFFIANTS BE PRODUCED AT HIS
HEARING, NONE WAS CALLED TO CONFRONT HIM.  THE COURT SAYS THAT
PETITIONER'S REQUEST CAME TOO LATE TO CONFORM WITH THE APPLICABLE
REGULATION.  (FN1)  DUE PROCESS DICTATES A DIFFERENT RESULT.  WE HAVE
HERETOFORE ANALOGIZED THESE ADMINISTRATIVE PROCEEDINGS THAT CAST THE
CITIZEN INTO THE OUTER DARKNESS TO PROCEEDINGS THAT "INVOLVE THE
IMPOSITION OF CRIMINAL SANCTIONS"; AND WE HAVE LOOKED TO "DEEPLY
ROOTED" PRINCIPLES OF CRIMINAL LAW FOR GUIDANCE IN CONSTRUING
REGULATIONS OF THIS CHARACTER.  PETERS V. HOBBY, 349 U.S. 331, 344-345;
GREENE V. MCELROY, 360 U.S. 474, 496.  BY THAT ANALOGY WE SHOULD
CONSTRUE THE PRESENT REGULATION AS BEING PROTECTIVE OF THE RIGHT OF
CONFRONTATION, NOT AS PROVIDING A TECHNICAL WAY IN WHICH THE RIGHT IS
EITHER SAVED OR LOST. 

CONFRONTATION AND CROSS-EXAMINATION ARE, AS I UNDERSTAND THE LAW,
VITAL WHEN ONE'S EMPLOYMENT RIGHTS ARE INVOLVED.  SEE GREENE V.
MCELROY, SUPRA, 496; BEARD V. STAHR, 370 U.S. 41, 43 (DISSENTING
OPINION).  PETITIONER IS NOT MERELY BEING "DENIED  ...  THE OPPORTUNITY
TO WORK AT ONE ISOLATED AND SPECIFIC MILITARY INSTALLATION."  CAFETERIA
WORKERS V. MCELROY, 367 U.S. 886, 896.  THE STIGMA NOW ATTACHED TO HIM
WILL FOLLOW HIM, WHATEVER EMPLOYMENT HE SEEKS.  THE REQUIREMENTS OF DUE
PROCESS PROVIDED BY THE FIFTH AMENDMENT SHOULD PROTECT HIM AGAINST THIS
HARSH RESULT BY GIVING HIM THE SAME RIGHT TO CONFRONT HIS ACCUSERS AS
HE WOULD HAVE IN A CRIMINAL TRIAL.  SEE MATTOX V. UNITED STATES, 156
U.S. 237; (FN2) KIRBY V. UNITED STATES, 174 U.S. 47, 55; CURTIS V.
RIVES, 123 F.2D 936, 938.  FOR THIS DISCHARGE WILL CERTIANLY HAUNT HIS
LATER LIFE AS MUCH AS WOULD A CONVICTION FOR WILLFUL EVASION OF TAXES. 

A TRIAL FOR MISCONDUCT INVOLVING CHARGES OF IMMORALITY, LIKE ONE FOR
DISLOYALTY, IS LIKELY TO BE "THE MOST CRUCIAL EVENT IN THE LIFE OF A
PUBLIC SERVANT.  IF CONDEMNED, HE IS BRANDED FOR LIFE AS A PERSON
UNWORTHY OF TRUST OR CONFIDENCE.  TO MAKE THAT CONDEMNATION WITHOUT
METICULOUS REGARD FOR THE DECENCIES OF A FAIR TRIAL IS ABHORRENT TO
FUNDAMENTAL JUSTICE."  ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 123,
180 (CONCURRING OPINION). 

PETITIONER HAS BEEN DEPRIVED OF HIS JOB AND PERMANENTLY STIGMATIZED
WITHOUT BEING CONFRONTED BY HIS ACCUSERS, EVEN THOUGH HE REQUESTED THAT
THEY BE CALLED AND EVEN THOUGH THEY COULD EASILY HAVE BEEN PRODUCED. 
PETITIONER DOES MORE THAN RELY ON THE REGULATION.  HE RELIES ON THE
FIFTH AMENDMENT AND THE SIXTH AMENDMENT.  TO BE SURE, HIS REQUEST AT
THE HEARING WAS NOT PHRASED IN CONSTITUTIONAL TERMS.  BUT
ADMINISTRATIVE PROCEDURES ARE NOT GAMES IN WHICH RIGHTS ARE WON OR LOST
ON THE TURN OF A PHRASE.  IN THE DISTRICT COURT HE CLAIMED THAT THIS
PROCEDURE "WAS ARBITRARY AND CAPRICIOUS AND VIOLATIVE OF THE FIFTH AND
SIXTH AMENDMENTS OF THE CONSTITUTION."  THAT ADEQUATELY RAISED THE
ISSUE.  SEE TERMINIELLO V. CHICAGO, 337 U.S. 1, 6; CF. WILLIAMS V.
GEORGIA, 349 U.S. 375.  IT SHOULD BE REMEMBERED THAT WHILE A VETERAN'S
PROCEEDING BEFORE THE CIVIL SERVICE COMMISSION IS CALLED AN "APPEAL,"
IT IS USUALLY THE FIRST OPPORTUNITY THE EMPLOYEE HAS FOR A "HEARING" ON
THE CHARGES AGAINST HIM.  IN VITARELLI V. SEATON, 359 U.S. 535, 544
545, WE CONSTRUED A REGULATION SUBSTANTIALLY SIMILAR TO THE PRESENT ONE
AS REQUIRING THE INTERIOR DEPARTMENT TO CALL AS WITNESSES ALL "NON
CONFIDENTIAL" INFORMANTS.  THE GOVERNMENT ADVANCES NO PERSUASIVE REASON
WHY THAT CASE DOES NOT CONTROL THIS ONE.  AT THE HEARING, WHEN
PETITIONER REQUESTED THAT THE WITNESSES BE CALLED, HIS REQUEST WAS
REJECTED BECAUSE "THE AIR FORCE ACADEMY SAW NO NEED FOR THEIR
ATTENDANCE."  BUT ONE WHO DESIRES CONFRONTATION WITH THE ACCUSER HAS
SUCH A CONFLICT OF INTEREST WITH HIS ADVERSARY THAT HE, RATHER THAN HIS
OPPONENT, CAN BETTER DETERMINE WHAT WOULD OR MIGHT BE USEFUL TO HIS
DEFENSE.  (FN3) WOULD NOT SAY THAT THIS IMPORTANT CONSTITUTIONAL RIGHT
WAS LOST ON THE TECHNICALITY THE COURT NOW EMBRACES. 

WE SHOULD NOT SADDLE THESE ADMINISTRATIVE PROCEEDINGS WITH STRICT
FORMALITIES CONCERNING THE MANNER IN WHICH EXCEPTIONS OR OBJECTIONS ARE
MADE.  THEY HAVE NO PLACE IN CRIMINAL PROCEEDINGS, AS RULE 51 OF THE
FEDERAL RULES (FN4) MAKES CLEAR; AND IT IS UNHEALTHY TO LET THEM TAKE
ROOT IN ADMINISTRATIVE HEARINGS WHERE HUMAN RIGHTS ARE INVOLVED THAT
ARE AS PRECIOUS TO "LIBERTY," WITHIN THE MEANING OF THE FIFTH
AMENDMENT, AS A PERSON'S RIGHT NOT TO BE FINED OR IMPRISONED UNLESS
PRESCRIBED PROCEDURES ARE FOLLOWED. 

THE JUDGMENT BELOW SHOULD BE REVERSED AND THE CASE REMANDED FOR A
FULL HEARING. 

FN1  SEE 5 CFR, PT. 22, SECS. 22.603, 22.607. 

FN2  "THE PRIMARY OBJECT OF THE CONSTITUTIONAL PROVISION  ...  IS TO
PREVENT DEPOSITIONS OR EX PARTE AFFIDAVITS  ...  BEING USED  ...  IN
LIEU OF A PERSONAL EXAMINATION AND CROSS-EXAMINATION OF THE WITNESS IN
WHICH THE ACCUSED HAS AN OPPORTUNITY, NOT ONLY OF TESTING THE
RECOLLECTION AND SIFTING THE CONSCIENCE OF THE WITNESS, BUT OF
COMPELLING HIM TO STAND FACE TO FACE WITH THE JURY IN ORDER THAT THEY
MAY LOOK AT HIM, AND JUDGE BY HIS DEMEANOR UPON THE STAND AND THE
MANNER IN WHICH HE GIVES HIS TESTIMONY WHETHER HE IS WORTHY OF
BELIEF."  156 U.S., AT 242-243. 

FN3  A RELATED PROBLEM REVEALING THE MANNER IN WHICH BUSINESS FIRMS
ARE BARRED FROM PARTICIPATING DIRECTLY OR INDIRECTLY IN GOVERNMENT
CONTRACTS WITHOUT NOTICE, OPPORTUNITY TO BE HEARD, AND CONFRONTATION IS
DISCUSSED IN THE COMMITTEE REPORT ON DEBARMENT AND SUSPENSION OF
PERSONS FROM GOVERNMENT CONTRACTING AND FEDERALLY ASSISTED CONSTRUCTION
WORK PREPARED FOR THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES BY
THE COMMITTEE ON ADJUDICATION OF CLAIMS, OCTOBER 1, 1962. 

FN4  RULE 51 PROVIDES: 

"EXCEPTIONS TO RULINGS OR ORDERS OF THE COURT ARE UNNECESSARY AND FOR
ALL PURPOSES FOR WHICH AN EXCEPTION HAS HERETOFORE BEEN NECESSARY IT IS
SUFFICIENT THAT A PARTY, AT THE TIME THE RULING OR ORDER OF THE COURT
IS MADE OR SOUGHT, MAKES KNOWN TO THE COURT THE ACTION WHICH HE DESIRES
THE COURT TO TAKE OR HIS OBJECTION TO THE ACTION OF THE COURT AND THE
GROUNDS THEREFOR; BUT IF A PARTY HAS NO OPPORTUNITY TO OBJECT TO A
RULING OR ORDER, THE ABSENCE OF AN OBJECTION DOES NOT THEREAFTER
PREJUDICE HIM." 
..END :
























RIDDELL V. MONOLITH PORTLAND CEMENT CO. 371 U.S. 537 


NO. 528.  DECIDED JANUARY 14, 1963.  - 301 F.2D 488, REVERSED. 


THE INTERNAL REVENUE CODE OF 1939 PERMITTED TAXPAYERS TO DEDUCT AS A
DEPLETION ALLOWANCE A PERCENTAGE OF "GROSS INCOME FROM MINING" AND
DEFINED "MINING" AS INCLUDING THE "ORDINARY TREATMENT PROCESSES
NORMALLY APPLIED BY MINE OWNERS  ...  TO OBTAIN THE COMMERCIALLY
MARKETABLE MINERAL PRODUCT OR PRODUCTS."  DURING THE TAXABLE YEAR 1952,
RESPONDENT MINED LIMESTONE FROM ITS OWN QUARRY, CRUSHED IT, TRANSPORTED
THE CRUSHED PRODUCT TWO MILES TO ITS PLANT, AND THERE, THROUGH THE
ADDITION OF OTHER MATERIALS AND FURTHER PROCESSING, MANUFACTURED THE
LIMESTONE INTO CEMENT, WHICH IT SOLD.  HELD:  RESPONDENT'S DEPLETION
ALLOWANCE MUST BE BASED, NOT UPON THE VALUE OF THE FINISHED CEMENT, BUT
UPON THE VALUE OF THE PRODUCT OF THE "MINING" WHEN IT REACHED THE
CRUSHED LIMESTONE STAGE.  UNITED STATES V. CANNELTON SEWER PIPE CO.,
364 U.S. 76.  PP. 537-539. 

RIDDELL, DISTRICT DIRECTOR OF INTERNAL REVENUE, V. MONOLITH PORTLAND
CEMENT CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE TAXPAYER RESPONDENT DURING THE TAXABLE YEAR 1952 MINED LIMESTONE
FROM ITS OWN QUARRY, CRUSHED IT, TRANSPORTED THE CRUSHED PRODUCT TWO
MILES TO ITS PLANT, AND THERE, THROUGH THE ADDITION OF OTHER MATERIALS
AND FURTHER PROCESSING, MANUFACTURED THE LIMESTONE INTO CEMENT WHICH IT
SOLD.  IT PAID TAXES FOR THE YEAR MENTIONED, BASED ON A DEPLETION
ALLOWANCE COMPUTED IN ACCORDANCE WITH TREASURY REGULATIONS.  THEREAFTER
TAXPAYER FILED CLAIM FOR REFUND AND NOW PROSECUTES THIS SUIT ON THE
GROUND THAT THE DEPLETION ALLOWANCE SHOULD NOT HAVE BEEN BASED UPON
CONSTRUCTIVE INCOME AT THE CRUSHED LIMESTONE STAGE, BUT RATHER UPON
GROSS RECEIPTS FROM SALES OF THE MINING PRODUCT AFTER ITS "TREATMENT
PROCESSES" WERE COMPLETED AND IT BECAME FINISHED CEMENT.  (FN1)  THE
DISTRICT COURT FOUND THAT THE TAXPAYER'S DEPLETION BASE WAS THE INCOME
FROM THE SALE OF FINISHED CEMENT, AND THE COURT OF APPEALS AFFIRMED. 
301 F.2D 488. 

PROVIDED THAT IN COMPUTING TAXABLE NET INCOME CERTAIN PERCENTAGE
DEDUCTIONS FROM GROSS INCOME SHOULD BE ALLOWED FOR DEPLETION OF MINES. 
THE CONGRESS FURTHER PROVIDED, SEC. 114(B)(4) OF THE CODE, AS AMENDED,
C. 63, SEC. 124(C)(B), 58 STAT. 45 (1944), THAT INCLUDED WITHIN THE
TERM "MINING" WERE "THE ORDINARY TREATMENT PROCESSES NORMALLY APPLIED
BY MINE OWNERS OR OPERATORS IN ORDER TO OBTAIN THE COMMERCIALLY
MARKETABLE MINERAL PRODUCT  ...  ." 

IN UNITED STATES V. CANNELTON SEWER PIPE CO., 364 U.S. 76 (1960), WE
CONSIDERED AT SOME LENGTH THE APPLICATION OF THIS TERM TO THE MINING
INDUSTRY AND HELD THAT THE STATUTORY PERCENTAGE DEPLETION ALLOWANCE ON
THE GROSS INCOME OF AN INTEGRATED MINING OPERATOR SHOULD BE CUT OFF AT
THE POINT WHERE THE MINERAL FIRST BECAME SUITABLE FOR INDUSTRIAL USE OR
CONSUMPTION.  AFTER CAREFUL STUDY OF THE RECORD HERE WE BELIEVE THAT
THIS CASE IS CONTROLLED BY CANNELTON.  WE CONCLUDED THERE "THAT
CONGRESS INTENDED TO GRANT MINERS A DEPLETION ALLOWANCE BASED ON THE
CONSTRUCTIVE INCOME FROM THE RAW MINERAL PRODUCT, IF MARKETABLE IN THAT
FORM, AND NOT ON THE VALUE OF THE FINISHED ARTICLES."  364 U.S., AT
86.  WE FOUND THAT "THE CUT-OFF POINT WHERE 'GROSS INCOME FROM MINING'
STOPPED HAS BEEN THE SAME" EVER SINCE THE FIRST DEPLETION STATUTE,
NAMELY, "WHERE THE ORDINARY MINER SHIPPED THE PRODUCT OF HIS MINE." 
ID., AT 87.  IT THEREFORE APPEARS FROM THIS RECORD THAT THE "PRODUCT"
WITH WHICH THE CODE DEALS HERE IS THE TAXPAYER'S PRODUCT AT THE POINT
WHEN "MINING" TERMINATED, I.E., WHEN IT REACHED THE CRUSHED LIMESTONE
STAGE.  (FN2)  THIS RESULTS IN LIMITING THE TAXPAYER'S BASIS FOR
DEPLETION TO ITS CONSTRUCTIVE INCOME FROM CRUSHED LIMESTONE, RATHER
THAN FROM FINISHED CEMENT. 

THE PETITION FOR CERTIORARI IS THEREFORE GRANTED, THE JUDGMENT
REVERSED, AND THE CASE IS REMANDED FOR DISPOSITION IN ACCORDANCE WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  THERE IS NO QUESTION HERE UNDER THE ACT OF SEPTEMBER 14, 1960,
74 STAT. 1017, SINCE TAXPAYER ELECTED TO PURSUE HIS CLAIM FOR DEPLETION
ON THE FINISHED CEMENT PRODUCT RATHER THAN ACCEPT AS A CORRECT CUT-OFF
POINT FOR DEPLETION THE PREKILN FEED STATE OF MANUFACTURE AS PERMITTED
BY THAT ACT. 

FN2  IN THIS CONNECTION CRUSHED LIMESTONE WAS NOT ONLY "MARKETABLE IN
THAT FORM" BUT, ACCORDING TO THE PREPRINT FROM BUREAU OF MINES MINERALS
YEARBOOK, 1952, STONE, P. 26, AN EXHIBIT IN THE RECORD, IT WAS ACTUALLY
SOLD IN CALIFORNIA IN 1952 IN AN AMOUNT EXCEEDING 1,500,000 TONS. 
SALES IN THE UNITED STATES FOR THAT YEAR EXCEEDED 216,000,000 TONS. 
BOTH OF THESE FIGURES EXCLUDE THE TONNAGE USED IN THE MANUFACTURE OF
CEMENT.  A STIPULATION IN THE RECORD SHOWS THAT LIMESTONE SOLD OR USED
FOR ALL PURPOSES TOTALED ALMOST 300,000,000 TONS IN 1952. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




SHENANDOAH VALLEY BROADCASTING V. AMERICAN SOCIETY OF COMPOSERS, AUTHORS
& PUBLISHERS 371 U.S. 540 


NO. 592.  DECIDED JANUARY 14, 1963.  - APPEAL DISMISSED FOR WANT OF
JURISDICTION.  - REPORTED BELOW: 208 F. SUPP. 896. 


SHENANDOAH VALLEY BROADCASTING, INC., ET AL. V. AMERICAN SOCIETY OF
COMPOSERS, AUTHORS & PUBLISHERS. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF JURISDICTION. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :











DITSON V. CALIFORNIA 371 U.S. 541 


NO. 729, MISC.  DECIDED JANUARY 14, 1963.  - CERTIORARI GRANTED;
JUDGMENT VACATED; AND CAUSE REMANDED. 


DITSON V. CALIFORNIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  IN VIEW OF THE SUGGESTION OF
MOOTNESS BY REASON OF THE EXECUTION OF THE PETITIONER, THE JUDGMENT OF
THE SUPREME COURT OF CALIFORNIA IS VACATED AND THE CAUSE IS REMANDED
FOR SUCH PROCEEDINGS AS THAT COURT MAY DEEM APPROPRIATE. 

NOTE: UPON PETITION BY THE STATE FOR REHEARING OR CLARIFICATION, THE
ABOVE OPINION WAS WITHDRAWN AND, UPON THE PRIOR SUGGESTION OF MOOTNESS,
THE PETITION FOR WRIT OF CERTIORARI WAS DISMISSED.  372 U.S. 933. 
..END :









NATIONAL LABOR RELATIONS BOARD V. RELIANCE FUEL OIL CORP. 371 U.S. 224 


NO. 88.  ARGUED DECEMBER 3, 1962.  - DECIDED JANUARY 7, 1963.  - 297
F.2D 94, REVERSED. 


RESPONDENT, A LOCAL DISTRIBUTOR OF FUEL OIL, PURCHASED A SUBSTANTIAL
AMOUNT OF FUEL OIL AND RELATED PRODUCTS FROM A SUPPLIER WHO HAD
IMPORTED THEM FROM OUTSIDE THE STATE AND WHO WAS CONCEDEDLY ENGAGED IN
INTERSTATE COMMERCE.  HELD:  RESPONDENT'S ACTIVITIES AND RELATED UNFAIR
LABOR PRACTICES "AFFECTED" COMMERCE WITHIN THE MEANING OF THE NATIONAL
LABOR RELATIONS ACT, AND, THEREFORE, WERE WITHIN THE JURISDICTION OF
THE NATIONAL LABOR RELATIONS BOARD.  PP. 224-227. 

NATIONAL LABOR RELATIONS BOARD V. RELIANCE FUEL OIL CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE RELIANCE FUEL OIL CORPORATION, RESPONDENT HEREIN, WAS FOUND BY
THE NATIONAL LABOR RELATIONS BOARD TO HAVE COMMITTED CERTAIN UNFAIR
LABOR PRACTICES IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT, 49
STAT. 449, AS AMENDED, 29 U.S.C. SEC. 151 ET SEQ. JURISDICTION BEFORE
THE BOARD WAS PREDICATED UPON THE FACT THAT RELIANCE, A NEW YORK
DISTRIBUTOR OF FUEL OIL WHOSE OPERATIONS WERE LOCAL, (FN1) PURCHASED
WITHIN THE STATE A "SUBSTANTIAL AMOUNT" OF FUEL OIL AND RELATED
PRODUCTS FROM THE GULF OIL CORPORATION, A SUPPLIER CONCEDEDLY ENGAGED
IN INTERSTATE COMMERCE.  MOST OF THE PRODUCTS SOLD TO RELIANCE BY GULF
WERE DELIVERED TO GULF FROM WITHOUT THE STATE OF NEW YORK AND PRIOR TO
SALE AND DELIVERY TO RELIANCE WERE STORED, WITHOUT SEGREGATION AS TO
CUSTOMER, IN GULF'S TANKS LOCATED WITHIN THE STATE.  DURING THE FISCAL
YEAR ENDING JUNE 30, 1959, RELIANCE HAD GROSS SALES IN EXCESS OF
$500,000 (FN2) AND, DURING THE CALENDAR YEAR 1959, IT PURCHASED IN
EXCESS OF $650,000 WORTH OF FUEL OIL AND RELATED PRODUCTS FROM GULF. 

THE BOARD ADOPTED ITS TRIAL EXAMINER'S FINDINGS THAT THE OPERATIONS
OF RELIANCE "AFFECTED" COMMERCE WITHIN THE MEANING OF THE ACT AND THAT
THE UNFAIR LABOR PRACTICES FOUND TENDED "TO LEAD TO LABOR DISPUTES
BURDENING AND OBSTRUCTING COMMERCE AND THE FREE FLOW OF COMMERCE  ...
."  129 N.L.R.B. 1166, 1171, 1182.  THE COURT OF APPEALS REVERSED, 297
F.2D 94, BECAUSE, IN ITS VIEW, THE RECORD BEFORE THE BOARD DID NOT
ADEQUATELY DEMONSTRATE THE EXISTENCE OF JURISDICTION AND REMANDED THE
CASE TO THE BOARD SO THAT IT MIGHT "TAKE FURTHER EVIDENCE AND MAKE
FURTHER FINDINGS ON THE MANNER IN WHICH A LABOR DISPUTE AT RELIANCE
AFFECTS OR TENDS TO AFFECT COMMERCE."  THE ONLY ISSUE BEFORE THIS COURT
IS WHETHER ON THE RECORD BEFORE IT THE BOARD PROPERLY FOUND THAT IT HAD
JURISDICTION TO ENTER AN ORDER AGAINST RELIANCE; THE SUBSTANTIVE
FINDINGS AS TO THE EXISTENCE OF THE UNFAIR LABOR PRACTICES ARE NOT HERE
IN DISPUTE. 

UNDER SEC. 10(A) OF THE ACT, THE BOARD IS EMPOWERED "TO PREVENT ANY
PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED IN SECTION 8)
AFFECTING COMMERCE."  SECTION 2(6) DEFINES "COMMERCE" TO MEAN "TRADE,
TRAFFIC, COMMERCE, TRANSPORTATION, OR COMMUNICATION AMONG THE  ...
STATES  ...  " AND SEC. 2(7) DECLARES: 

"THE TERM 'AFFECTING COMMERCE' MEANS IN COMMERCE, OR BURDENING OR
OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE, OR HAVING LED OR
TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE OR
THE FREE FLOW OF COMMERCE." 

THIS COURT HAS CONSISTENTLY DECLARED THAT IN PASSING THE NATIONAL
LABOR RELATIONS ACT, CONGRESS INTENDED TO AND DID VEST IN THE BOARD THE
FULLEST JURISDICTIONAL BREADTH CONSTITUTIONALLY PERMISSIBLE UNDER THE
COMMERCE CLAUSE.  SEE, E.G., GUSS V. UTAH LABOR BOARD, 353 U.S. 1, 3;
POLISH ALLIANCE V. LABOR BOARD, 322 U.S. 643, 647-648; LABOR BOARD V.
FAINBLATT, 306 U.S. 601, 607.  COMPARE WEBER V. ANHEUSER-BUSCH, INC.,
348 U.S. 468, 480.  THE ACT ESTABLISHES A FRAMEWORK WITHIN WHICH THE
BOARD IS TO DETERMINE "WHETHER PROSCRIBED PRACTICES WOULD IN PARTICULAR
SITUATIONS ADVERSELY AFFECT COMMERCE WHEN JUDGED BY THE FULL REACH OF
THE CONSTITUTIONAL POWER OF CONGRESS.  WHETHER OR NO PRACTICES MAY BE
DEEMED BY CONGRESS TO AFFECT INTERSTATE COMMERCE IS NOT TO BE
DETERMINED BY CONFINING JUDGMENT TO THE QUANTITATIVE EFFECT OF THE
ACTIVITIES IMMEDIATELY BEFORE THE BOARD.  APPROPRIATE FOR JUDGMENT IS
THE FACT THAT THE IMMEDIATE SITUATION IS REPRESENTATIVE OF MANY OTHERS
THROUGHOUT THE COUNTRY, THE TOTAL INCIDENCE OF WHICH IF LEFT UNCHECKED
MAY WELL BECOME FAR-REACHING IN ITS HARM TO COMMERCE."  POLISH ALLIANCE
V. LABOR BOARD, 322 U.S., AT 648.  SEE ALSO LABOR BOARD V. FAINBLATT,
306 U.S., AT 607-608. 

THAT ACTIVITIES SUCH AS THOSE OF RELIANCE AFFECT COMMERCE AND ARE
WITHIN THE CONSTITUTIONAL REACH OF CONGRESS IS BEYOND DOUBT.  SEE,
E.G., WICKARD V. FILBURN, 317 U.S. 111.  THROUGH THE NATIONAL LABOR
RELATIONS ACT, "  ...  CONGRESS HAS EXPLICITLY REGULATED NOT MERELY
TRANSACTIONS OR GOODS IN INTERSTATE COMMERCE BUT ACTIVITIES WHICH IN
ISOLATION MIGHT BE DEEMED TO BE MERELY LOCAL BUT IN THE INTERLACINGS OF
BUSINESS ACROSS STATE LINES ADVERSELY AFFECT SUCH COMMERCE."  POLISH
ALLIANCE V. LABOR BOARD, 322 U.S., AT 648.  THIS BEING SO, THE
JURISDICTIONAL TEST IS MET HERE:  THE BOARD PROPERLY FOUND THAT BY
VIRTUE OF RELIANCE'S PURCHASES FROM GULF, RELIANCE'S OPERATIONS AND THE
RELATED UNFAIR LABOR PRACTICES "AFFECTED" COMMERCE, WITHIN THE MEANING
OF THE ACT.  THE JUDGMENT OF THE COURT OF APPEALS ACCORDINGLY MUST BE
AND IS REVERSED. 

FN1  IN 1959 RELIANCE PURCHASED A FEW HUNDRED DOLLARS WORTH OF TRUCK
PARTS IN NEW JERSEY, BUT THE BOARD DID NOT RELY ON SUCH TRANSACTIONS TO
SUSTAIN ITS ASSERTION OF JURISDICTION. 

FN2  SINCE THE BOARD APPARENTLY TREATED RELIANCE AS A "RETAIL"
CONCERN, THIS AMOUNT OF GROSS SALES MET ITS SELF-IMPOSED STANDARD FOR
EXERCISE OF JURISDICTION.  129 N.L.R.B. 1166, 1170-1171. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :













UNITED STATES V. BUFFALO SAVINGS BANK 371 U.S. 228 


NO. 96.  ARGUED DECEMBER 3, 1962.  - DECIDED JANUARY 7, 1963.  - 11
N.Y.2D 31, 181 N.E.2D 413, REVERSED. 


A BANK MADE A LOAN SECURED BY A MORTGAGE ON REAL ESTATE. 
SUBSEQUENTLY, THE UNITED STATES FILED NOTICE OF A FEDERAL TAX LIEN
AGAINST THE MORTGAGOR'S PROPERTY.  THEREAFTER LIENS FOR UNPAID REAL
ESTATE TAXES AND OTHER LOCAL ASSESSMENTS ATTACHED TO THE PROPERTY.  THE
BANK INSTITUTED FORECLOSURE PROCEEDINGS, NAMING THE UNITED STATES AS A
PARTY.  HELD:  IN DISTRIBUTING THE PROCEEDS OF A FORECLOSURE SALE OF
THE PROPERTY, THE FEDERAL TAX LIEN SHOULD BE GIVEN PRIORITY OVER THE
LIENS FOR UNPAID REAL ESTATE TAXES AND OTHER LOCAL ASSESSMENTS,
NOTWITHSTANDING A STATE LAW PROVIDING THAT PAYMENTS TO DISCHARGE SUCH
STATE TAX LIENS SHALL BE DEEMED "EXPENSES" OF A MORTGAGE FORECLOSURE
SALE.  PP. 228-230. 

UNITED STATES V. BUFFALO SAVINGS BANK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

IN 1946, RESPONDENT BUFFALO SAVINGS BANK MADE A LOAN SECURED BY A
REAL ESTATE MORTGAGE.  THE UNITED STATES FILED NOTICE OF A FEDERAL TAX
LIEN AGAINST THE MORTGAGOR'S PROPERTY IN 1953.  THEREAFTER, IN 1957 AND
1958, LIENS FOR UNPAID REAL ESTATE TAXES AND OTHER LOCAL ASSESSMENTS
ATTACHED TO THE PROPERTY.  THE BANK INSTITUTED FORECLOSURE PROCEEDINGS,
NAMING THE UNITED STATES AS A PARTY.  THE TRIAL COURT'S DECREE ORDERED
THE PROPERTY SOLD AND THE PAYMENT OF LOCAL REAL ESTATE TAXES AND OTHER
ASSESSMENTS AS PART OF THE EXPENSES OF THE SALE PRIOR TO THE
SATISFACTION OF THE TAX LIEN OF THE UNITED STATES.  THE UNITED STATES
APPEALED AND THE NEW YORK SUPREME COURT, APPELLATE DIVISION, REVERSED,
ONLY TO BE REVERSED IN TURN BY THE NEW YORK COURT OF APPEALS, WHICH
REINSTATED THE TRIAL COURT'S JUDGMENT ON THE GROUND THAT THE FEDERAL
TAX LIEN ATTACHED ONLY TO THE MORTGAGOR'S INTEREST IN THE SURPLUS AFTER
THE FORECLOSURE SALE AND THEREFORE WAS SUBORDINATE TO THE LOCAL TAXES
AS "EXPENSE OF SALE."  11 N.Y.2D 31, 181 N.E.2D 413. 

WE MUST REVERSE THE JUDGMENT OF THE NEW YORK COURT OF APPEALS FOR
FAILURE TO TAKE PROPER ACCOUNT OF UNITED STATES V. NEW BRITAIN, 347
U.S. 81.  THAT CASE RULES THIS ONE, FOR THERE THE COURT QUITE CLEARLY
HELD THAT FEDERAL TAX LIENS HAVE PRIORITY OVER SUBSEQUENTLY ACCRUING
LIENS FOR LOCAL REAL ESTATE TAXES, EVEN THOUGH THE BURDEN OF THE LOCAL
TAXES IN THE EVENT OF A SHORTAGE WOULD FALL UPON THE MORTGAGEE WHOSE
CLAIM UNDER STATE LAW IS SUBORDINATE TO LOCAL TAX LIENS. 

A SIMILAR ARGUMENT BASED ON THE GENERAL CHARACTER OF THE FEDERAL TAX
LIEN WAS MADE AND SPECIFICALLY REJECTED IN NEW BRITAIN.  MOREOVER, THE
STATE MAY NOT AVOID THE PRIORITY RULES OF THE FEDERAL TAX LIEN BY THE
FORMALISTIC DEVICE OF CHARACTERIZING SUBSEQUENTLY ACCRUING LOCAL LIENS
AS EXPENSES OF SALE.  CF. UNITED STATES V. GILBERT ASSOCIATES, INC.,
345 U.S. 361.  FINALLY, RESPONDENT'S RELIANCE ON UNITED STATES V.
BROSNAN, 363 U.S. 237, AND CREST FINANCE CO. V. UNITED STATES, 368 U.S.
347, IS MISPLACED.  BROSNAN WAS CONCERNED WITH FORECLOSURE PROCEDURES,
NOT WITH PRIORITIES, AND IN CONNECTION WITH THE LATTER SUBJECT RELIED
UPON NEW BRITAIN AMONG OTHER CASES.  CREST IS WHOLLY INAPPOSITE HERE. 

THE JUDGMENT IS THEREFORE REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :










SOUTHERN CALIFORNIA EDISON CO. V. PUBLIC UTILITIES COMMISSION OF
CALIFORNIA 371 U.S. 231 


NO. 445.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


SOUTHERN CALIFORNIA EDISON CO. V. PUBLIC UTILITIES COMMISSION OF
CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION OF SOUTHERN CALIFORNIA GAS COMPANY AND SOUTHERN COUNTIES
GAS COMPANY OF CALIFORNIA TO CORRECT TITLE AND CAPTION IS GRANTED. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :











THOMAS V. CALIFORNIA 371 U.S. 231 


NO. 635, MISC.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW: 58 CAL. 2D 121, 373 P.2D 97. 


THOMAS V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















JAMIESON V. CHICAGO TITLE & TRUST CO. 371 U.S. 232 


NO. 545.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


JAMIESON V. CHICAGO TITLE & TRUST CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















VOLTAGGIO V. CAPUTO 371 U.S. 232 


NO. 559.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED AS MOOT. 


VOLTAGGIO V. CAPUTO, COUNTY CLERK OF ESSEX COUNTY, NEW JERSEY, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED AS
MOOT. 
..END :

















BLAUSTEIN V. AIELLO 371 U.S. 233 


NO. 570.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  229 MD. 131, 182 A.2D 353. 


BLAUSTEIN V. AIELLO, SUBSTITUTE TRUSTEE. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















VICKERS V. TOWNSHIP COMMITTEE OF GLOUCESTER TOWNSHIP 371 U.S. 233 


NO. 572.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  37 N.J. 232, 181 A.2D 129. 


VICKERS V. TOWNSHIP COMMITTEE OF GLOUCESTER TOWNSHIP ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















LAMB V. CALIFORNIA 371 U.S. 234 


NO. 578.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  204 CAL. APP. 2D 255, 22 CAL. RPTR.  284. 


LAMB V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WILLIAMSON V. HOPEWELL REDEVELOPMENT & HOUSING AUTHORITY 371 U.S. 234 


NO. 582.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  203 VA. 653, 125
S.E.2D 849. 


WILLIAMSON ET AL. V. HOPEWELL REDEVELOPMENT & HOUSING AUTHORITY. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















EASTER V. DEPARTMENT OF ASSESSMENTS OF BALTIMORE CITY 371 U.S. 235 


NO. 584.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  228 MD. 547, 180 A.2D 700. 


EASTER V. DEPARTMENT OF ASSESSMENTS OF BALTIMORE CITY. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















JOHNSON V. MISSISSIPPI 371 U.S. 235 


NO. 625, MISC.  DECIDED JANUARY 7, 1963.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


JOHNSON V. MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















SCHROEDER V. CITY OF NEW YORK 371 U.S. 208 


NO. 75.  ARGUED NOVEMBER 15, 1962.  - DECIDED DECEMBER 17, 1962.  - 10
N.Y.2D 522, 180 N.E.2D 568, REVERSED. 


UNDER THE NEW YORK CITY WATER SUPPLY ACT, THE CITY INSTITUTED
PROCEEDINGS TO ACQUIRE THE RIGHT TO DIVERT A PORTION OF A RIVER SOME 25
MILES UPSTREAM FROM APPELLANT'S SUMMER HOME, WHICH WAS ON THE BANK OF
THE RIVER AND WAS OCCUPIED ONLY DURING THE MONTHS OF JULY AND AUGUST
EACH YEAR.  ALTHOUGH APPELLANT'S NAME AND ADDRESS COULD EASILY HAVE
BEEN ASCERTAINED FROM DEED RECORDS AND TAX ROLLS, NO ATTEMPT WAS MADE
TO GIVE NOTICE TO APPELLANT EXCEPT BY PUBLICATION IN NEWSPAPERS AND BY
POSTING NOTICES DURING THE MONTH OF JANUARY ON TREES AND POLES ALONG
THE RIVER.  ALLEGING THAT SHE HAD NO ACTUAL KNOWLEDGE OF THE
PROCEEDINGS UNTIL AFTER THE STATUTORY PERIOD FOR FILING DAMAGE CLAIMS
HAD EXPIRED, APPELLANT SOUGHT REDRESS IN THE NEW YORK COURTS.  HELD:
IN THE CIRCUMSTANCES OF THIS CASE, THE NEWSPAPER PUBLICATIONS AND
POSTED NOTICES DID NOT MEASURE UP TO THE QUALITY OF NOTICE WHICH THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES.  PP.  208
214. 

SCHROEDER V. CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE CITY OF NEW YORK
DEPRIVED THE APPELLANT OF DUE PROCESS OF LAW BY FAILING TO GIVE HER
ADEQUATE NOTICE OF CONDEMNATION PROCEEDINGS AFFECTING CERTAIN PROPERTY
SHE OWNED ON THE NEVERSINK RIVER IN ORANGE COUNTY, NEW YORK.  THE
PROPERTY IN QUESTION CONSISTED OF A HOUSE AND THREE AND ONE-HALF ACRES
OF LAND, WHICH THE APPELLANT AND HER FAMILY OCCUPIED ONLY DURING THE
MONTHS OF JULY AND AUGUST EACH YEAR. 

IN 1952 THE CITY INSTITUTED A PROCEEDING UNDER THE PROVISIONS OF THE
NEW YORK CITY WATER SUPPLY ACT (FN1) TO ACQUIRE THE RIGHT TO DIVERT A
PORTION OF THE NEVERSINK RIVER AT A POINT IN SULLIVAN COUNTY, NEW YORK,
SOME 25 MILES UPSTREAM FROM THE APPELLANT'S PROPERTY.  THE WATER SUPPLY
ACT, WHICH SETS OUT THE PROCEDURE TO BE FOLLOWED BY THE NEW YORK BOARD
OF WATER SUPPLY IN CONDEMNING LAND, EASEMENTS, AND RIGHTS AFFECTING
REAL PROPERTY REQUIRED FOR THE NEW YORK CITY WATER SYSTEM, PROVIDES
THAT NOTICE OF SUCH CONDEMNATION PROCEEDINGS BE GIVEN TO AFFECTED
LANDOWNERS IN THE FOLLOWING MANNER: 

"THE CORPORATION COUNSEL SHALL GIVE NOTICE IN THE CITY RECORD, AND IN
TWO PUBLIC NEWSPAPERS PUBLISHED IN THE CITY OF NEW YORK AND IN TWO
PUBLIC NEWSPAPERS PUBLISHED IN EACH OTHER COUNTY IN WHICH ANY REAL
ESTATE LAID OUT ON SUCH MAPS MAY BE LOCATED, AND WHICH IT IS PROPOSED
TO ACQUIRE IN THE PROCEEDING, OF HIS INTENTION TO MAKE APPLICATION TO
SUCH COURT FOR THE APPOINTMENT OF COMMISSIONERS OF APPRAISAL  ...  .
SUCH NOTICE SHALL BE SO PUBLISHED, ONCE IN EACH WEEK, IN EACH OF SUCH
NEWSPAPERS, FOR SIX WEEKS IMMEDIATELY PREVIOUS TO THE PRESENTATION OF
SUCH PETITION; AND THE CORPORATION COUNSEL SHALL IN ADDITION TO SUCH
ADVERTISEMENT CAUSE COPIES OF THE SAME IN HAND BILLS TO BE POSTED UP,
FOR THE SAME SPACE OF TIME IN AT LEAST TWENTY CONSPICUOUS PLACES ON THE
LINE OF THE AQUEDUCT OR IN THE VICINITY OF THE REAL ESTATE SO TO BE
TAKEN OR AFFECTED."  (FN2) 

THE ACT FURTHER PROVIDES THAT ALL CLAIMS FOR DAMAGES RESULTING FROM
THE CITY'S ACQUISITION ARE BARRED AFTER THREE YEARS.  (FN3) 

PROCEEDING IN ACCORDANCE WITH THE STATUTE, THE CITY CAUSED NOTICE OF
ITS ACQUISITION OF THE RIGHT TO DIVERT THE NEVERSINK TO BE PUBLISHED
THE REQUISITE NUMBER OF TIMES IN THE CITY RECORD OF THE CITY OF NEW
YORK, IN TWO NEW YORK CITY NEWSPAPERS, AND IN TWO NEWSPAPERS PUBLISHED
IN ORANGE COUNTY, AND IN ADDITION POSTED 22 NOTICES ON TREES AND POLES
ALONG A SEVEN- OR EIGHT-MILE STRETCH OF THE RIVER IN THE GENERAL
VICINITY OF THE APPELLANT'S PREMISES.  NO NOTICE WAS POSTED ANYWHERE ON
THE APPELLANT'S PROPERTY ITSELF.  THE TWO ORANGE COUNTY NEWSPAPERS IN
WHICH PUBLICATION WAS MADE WERE PUBLISHED IN SMALL COMMUNITIES MANY
MILES FROM THE APPELLANT'S PROPERTY, ALTHOUGH AT THE TIME THERE WERE
NEWSPAPERS BEING PUBLISHED IN LARGER ORANGE COUNTY TOWNS NEARBY.  THE
NOTICES WERE POSTED ON THE TREES AND POLES DURING THE MONTH OF JANUARY,
WHEN THE APPELLANT'S PREMISES WERE VACANT.  ALTHOUGH THE APPELLANT'S
NAME AND ADDRESS WERE READILY ASCERTAINABLE FROM BOTH DEED RECORDS AND
TAX ROLLS, NEITHER THE NEWSPAPER PUBLICATIONS NOR THE POSTED NOTICES
CONTAINED THE NAME OF THE APPELLANT OR OF ANY OTHER AFFECTED PROPERTY
OWNER.  NEITHER THE NEWSPAPER PUBLICATIONS NOR THE POSTED NOTICES
EXPLAINED WHAT ACTION A PROPERTY OWNER MIGHT TAKE TO RECOVER FOR
DAMAGES CAUSED BY THE CITY'S ACQUISITION, NOR DID THEY INTIMATE ANY
TIME LIMIT UPON THE FILING OF A CLAIM BY AN AFFECTED PROPERTY OWNER. 

THE APPELLANT DID NOT FILE A CLAIM FOR DAMAGES TO HER PROPERTY WITHIN
THE THREE-YEAR PERIOD PRESCRIBED BY THE WATER SUPPLY ACT.  IN JANUARY
1960, HOWEVER, SHE BROUGHT THE PRESENT EQUITABLE ACTION IN A NEW YORK
TRIAL COURT.  HER COMPLAINT ALLEGED THAT SHE HAD NEVER BEEN NOTIFIED OF
THE CONDEMNATION PROCEEDINGS, AND KNEW NOTHING ABOUT THEM, NOR OF HER
RIGHT TO MAKE A CLAIM AGAINST THE CITY FOR DAMAGES TO HER PROPERTY,
UNTIL AFTER SHE HAD CONSULTED A LAWYER IN 1959.  SHE ALLEGED THAT BY
FAILING TO GIVE HER ADEQUATE NOTICE OF THE CONDEMNATION PROCEEDINGS,
THE CITY HAD DEPRIVED HER OF PROPERTY IN VIOLATION OF DUE PROCESS OF
LAW.  THE TRIAL COURT GRANTED THE CITY'S MOTION FOR JUDGMENT ON THE
PLEADINGS IN AN UNREPORTED OPINION HOLDING THAT "THE NOTICE PROVISIONS
OF SECTION K41-8.0 OF THE WATER SUPPLY ACT - ADMITTEDLY FULLY COMPLIED
WITH BY THE DEFENDANT" - WERE NOT "VIOLATIVE OF THE DUE PROCESS
PROVISIONS OF THE FEDERAL AND STATE CONSTITUTIONS  ...  ."  THIS
JUDGMENT WAS AFFIRMED BY THE APPELLATE DIVISION, (FN4) AND BY THE NEW
YORK COURT OF APPEALS, TWO JUDGES DISSENTING.  (FN5)  THE CASE IS
PROPERLY HERE ON APPEAL UNDER 28 U.S.C. SEC. 1257(2). 

WE HOLD THAT THE NEWSPAPER PUBLICATIONS AND POSTED NOTICES IN THE
CIRCUMSTANCES OF THIS CASE DID NOT MEASURE UP TO THE QUALITY OF NOTICE
WHICH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES. 

"AN ELEMENTARY AND FUNDAMENTAL REQUIREMENT OF DUE PROCESS IN ANY
PROCEEDING WHICH IS TO BE ACCORDED FINALITY IS NOTICE REASONABLY
CALCULATED, UNDER ALL THE CIRCUMSTANCES, TO APPRISE INTERESTED PARTIES
OF THE PENDENCY OF THE ACTION AND AFFORD THEM AN OPPORTUNITY TO PRESENT
THEIR OBJECTIONS.  MILLIKEN V. MEYER, 311 U.S. 457; GRANNIS V. ORDEAN,
234 U.S. 385; PRIEST V. LAS VEGAS, 232 U.S. 604; ROLLER V. HOLLY, 176
U.S. 398."  MULLANE V. CENTRAL HANOVER TR. CO., 339 U.S. 306, 314.  IN
THE MULLANE CASE, WHICH INVOLVED NOTICE BY PUBLICATION TO THE
BENEFICIARIES OF A COMMON TRUST FUND, THE COURT THOROUGHLY CANVASSED
THE PROBLEM OF SUFFICIENCY OF NOTICE UNDER THE DUE PROCESS CLAUSE,
POINTING OUT THE REASONS BEHIND THE BASIC CONSTITUTIONAL RULE, AS WELL
AS THE PRACTICAL CONSIDERATIONS WHICH MAKE IT IMPOSSIBLE TO DRAW A
STANDARD SET OF SPECIFICATIONS AS TO WHAT IS CONSTITUTIONALLY ADEQUATE
NOTICE, TO BE MECHANICALLY APPLIED IN EVERY SITUATION. 

AS WAS EMPHASIZED IN MULLANE, THE REQUIREMENT THAT PARTIES BE
NOTIFIED OF PROCEEDINGS AFFECTING THEIR LEGALLY PROTECTED INTERESTS IS
OBVIOUSLY A VITAL COROLLARY TO ONE OF THE MOST FUNDAMENTAL REQUISITES
OF DUE PROCESS - THE RIGHT TO BE HEARD.  "THIS RIGHT  ...  HAS LITTLE
REALITY OR WORTH UNLESS ONE IS INFORMED THAT THE MATTER IS PENDING AND
CAN CHOOSE FOR HIMSELF WHETHER TO APPEAR OR DEFAULT, ACQUIESCE OR
CONTEST."  339 U.S., AT 314.  THE COURT RECOGNIZED THE PRACTICAL
IMPOSSIBILITY OF GIVING PERSONAL NOTICE IN SOME CASES, SUCH AS THOSE
INVOLVING MISSING OR UNKNOWN PERSONS.  BUT THE INADEQUACIES OF "NOTICE"
BY PUBLICATION WERE DESCRIBED IN WORDS THAT BEAR REPEATING HERE: 

"CHANCE ALONE BRINGS TO THE ATTENTION OF EVEN A LOCAL RESIDENT AN
ADVERTISEMENT IN SMALL TYPE INSERTED IN THE BACK PAGES OF A NEWSPAPER,
AND IF HE MAKES HIS HOME OUTSIDE THE AREA OF THE NEWSPAPER'S NORMAL
CIRCULATION THE ODDS THAT THE INFORMATION WILL NEVER REACH HIM ARE
LARGE INDEED.  THE CHANCE OF ACTUAL NOTICE IS FURTHER REDUCED WHEN, AS
HERE, THE NOTICE REQUIRED DOES NOT EVEN NAME THOSE WHOSE ATTENTION IT
IS SUPPOSED TO ATTRACT, AND DOES NOT INFORM ACQUAINTANCES WHO MIGHT
CALL IT TO ATTENTION."  339 U.S., AT 315. 

THE GENERAL RULE THAT EMERGES FROM THE MULLANE CASE IS THAT NOTICE BY
PUBLICATION IS NOT ENOUGH WITH RESPECT TO A PERSON WHOSE NAME AND
ADDRESS ARE KNOWN OR VERY EASILY ASCERTAINABLE AND WHOSE LEGALLY
PROTECTED INTERESTS ARE DIRECTLY AFFECTED BY THE PROCEEDINGS IN
QUESTION.  "WHERE THE NAMES ANND POST-OFFICE ADDRESSES OF THOSE
AFFECTED BY A PROCEEDING ARE AT HAND, THE REASONS DISAPPEAR FOR RESORT
TO MEANS LESS LIKELY THAN THE MAILS TO APPRISE THEM OF ITS PENDENCY." 
339 U.S., AT 318. 

THIS RULE WAS APPLIED IN NEW YORK V. NEW YORK, N.H.&H.R. CO., 344
U.S. 293, 296, WHERE THE COURT POINTED OUT THAT "NOTICE BY PUBLICATION
IS A POOR AND SOMETIMES A HOPELESS SUBSTITUTE FOR ACTUAL SERVICE OF
NOTICE," AND THAT "ITS JUSTIFICATION IS DIFFICULT AT BEST."  THE RULE
WAS APPLIED AGAIN IN WALKER V. HUTCHINSON CITY, 352 U.S. 112, IN A
FACTUAL SITUATION MUCH AKIN TO THAT IN THE PRESENT CASE.  IN WALKER
PART OF THE APPELLANT'S LAND HAD BEEN TAKEN IN CONDEMNATION
PROCEEDINGS, AND HE HAD BEEN GIVEN "NOTICE" OF A PROCEEDING TO FIX HIS
COMPENSATION ONLY BY PUBLICATION IN THE OFFICIAL CITY NEWSPAPER.  THE
COURT HELD THAT SUCH NOTICE WAS CONSTITUTIONALLY INSUFFICIENT, NOTING
THAT THE APPELLANT'S NAME "WAS KNOWN TO THE CITY AND WAS ON THE
OFFICIAL RECORDS," AND THAT "EVEN A LETTER WOULD HAVE APPRISED HIM THAT
HIS PROPERTY WAS ABOUT TO BE TAKEN AND THAT HE MUST APPEAR IF HE WANTED
TO BE HEARD AS TO ITS VALUE."  352 U.S., AT 116. 

DECISION IN THE CASE BEFORE US WE THINK IS CLEARLY CONTROLLED BY THE
RULE STATED IN THE MULLANE CASE, AND BY THE SPECIFICALLY RELEVANT
APPLICATION OF THAT RULE IN THE WALKER CASE.  IT IS TRUE THAT IN
ADDITION TO PUBLISHING IN NEWSPAPERS, THE CITY IN THE PRESENT CASE DID
PUT SOME SIGNS ON TREES AND POLES ALONG THE BANKS OF THE RIVER.  BUT NO
SUCH SIGN WAS PLACED ANYWHERE ON THE APPELLANT'S PROPERTY, OR EVER SEEN
BY HER.  THE POSTING OF THESE SIGNS, THEREFORE, DID NOT CONSTITUTE THE
PERSONAL NOTICE THAT THE RULE ENUNCIATED IN THE MULLANE CASE REQUIRES. 

THE MAJORITY OPINION IN THE NEW YORK COURT OF APPEALS SEEMS
ADDITIONALLY TO HAVE DRAWN SUPPORT FROM AN ASSUMPTION THAT THE EFFECT
OF THE CITY'S DIVERSION OF THE RIVER MUST HAVE BEEN APPARENT TO THE
APPELLANT BEFORE THE EXPIRATION OF THE THREE-YEAR PERIOD WITHIN WHICH
THE STATUTE REQUIRED THAT HER CLAIM BE FILED.  10 N.Y.2D, AT 526-527,
180 N.E.2D, AT 569-570.  THERE WAS NO SUCH ALLEGATION IN THE PLEADINGS,
UPON WHICH THE CASE WAS DECIDED BY THE TRIAL COURT.  BUT EVEN PUTTING
THIS CONSIDERATION ASIDE, KNOWLEDGE OF A CHANGE IN THE APPEARANCE OF
THE RIVER IS FAR SHORT OF NOTICE THAT THE CITY HAD DIVERTED IT AND THAT
THE APPELLANT HAD A RIGHT TO BE HEARD ON A CLAIM FOR COMPENSATION FOR
DAMAGES RESULTING FROM THE DIVERSION.  (FN6)  THAT WAS THE INFORMATION
WHICH THE CITY WAS CONSTITUTIONALLY OBLIGED TO MAKE AT LEAST A GOOD
FAITH EFFORT TO GIVE PERSONALLY TO THE APPELLANT - AN OBLIGATION WHICH
THE MAILING OF A SINGLE LETTER WOULD HAVE DISCHARGED. 

THE JUDGMENT OF THE NEW YORK COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  ADMINISTRATIVE CODE OF CITY OF NEW YORK, TITLE K41. 

FN2  ADMINISTRATIVE CODE OF CITY OF NEW YORK, TITLE K41-8.0. 

FN3  ADMINISTRATIVE CODE OF CITY OF NEW YORK, TITLE K41-18.0. 

FN4  14 APP. DIV. 2D 183, 217 N.Y.S.2D 975. 

FN5  10 N.Y.2D 522, 180 N.E.2D 568.  ALTHOUGH THE COMPLAINT PRAYED
FOR A JUDGMENT ENJOINING THE CITY FROM DIVERTING THE WATERS OF THE
NEVERSINK, THE NEW YORK COURTS CONSTRUED THE PLEADING AS THE
APPROPRIATE WAY TO RAISE THE QUESTION OF THE ADEQUACY OF THE NOTICE
PROVISIONS AND TO ASSERT THE RIGHT TO BE HEARD ON THE ISSUE OF
DAMAGES.  IN HER BRIEF THE APPELLANT HAS CONCEDED THAT SHE IS NOT
ENTITLED TO AN INJUNCTION.  CF. WALKER V. HUTCHINSON CITY, 352 U.S.
112, 114, N. 3. 

FN6  THE COMPLAINT ALLEGED DAMAGES BASED UPON THE IMPAIRMENT OF THE
RIVER'S VALUE TO THE APPELLANT FOR "BATHING, SWIMMING, FISHING AND
BOATING."  THIS CLAIMED IMPAIRMENT ALLEGEDLY RESULTED NOT FROM ANY
CHANGE IN THE RIVER'S COURSE, DEPTH, OR CONFIGURATION, BUT FROM A
DECREASE IN THE VELOCITY OF ITS FLOW. 
..END :













HARRIS TRUCK LINES V. CHERRY MEAT PACKERS 371 U.S. 215 


NO. 435.  DECIDED DECEMBER 17, 1962.  - 303 F.2D 609, JUDGMENT VACATED
AND CASE REMANDED. 


A FEDERAL DISTRICT COURT RENDERED A JUDGMENT AGAINST PETITIONER, A
DEFUNCT CORPORATION, AND DENIED A MOTION FOR A NEW TRIAL WHILE ITS
GENERAL COUNSEL, TO WHOM HAD BEEN DELEGATED SOLE RESPONSIBILITY FOR ALL
CORPORATE DECISIONS WITH RESPECT TO PENDING LITIGATION, WAS IN MEXICO
AND COULD NOT BE REACHED.  WITHIN THE 30-DAY PERIOD FOR APPEAL
PERMITTED UNDER FEDERAL RULE OF CIVIL PROCEDURE 73(A), PETITIONER'S
LOCAL COUNSEL APPLIED TO THE DISTRICT COURT FOR AN EXTENSION OF TIME
WITHIN WHICH TO APPEAL.  THE DISTRICT COURT GRANTED AN EXTENSION OF TWO
WEEK, AND NOTICE OF APPEAL WAS FILED WITHIN THAT TIME.  THE COURT OF
APPEALS DISMISSED THE APPEAL, ON THE GROUND THAT NO SHOWING OF
"EXCUSABLE NEGLECT BASED ON A FAILURE OF A PARTY TO LEARN OF THE ENTRY
OF THE JUDGMENT," WITHIN THE MEANING OF RULE 73(A), HAD BEEN MADE TO
THE DISTRICT COURT, THAT THERE WAS NO BASIS FOR WAIVING THE 30-DAY RULE
AND THAT, THEREFORE, THE APPEAL WAS UNTIMELY FILED.  HELD:  SINCE
PETITIONER HAD RELIED ON THE DISTRICT COURT'S RULING EXTENDING THE TIME
WITHIN WHICH TO APPEAL AND PETITIONER WOULD SUFFER A HARDSHIP IF IT
WERE SET ASIDE, THE COURT OF APPEALS SHOULD HAVE LET IT STAND.  PP. 215
217. 

HARRIS TRUCK LINES, INC., V. CHERRY MEAT PACKERS, INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
VACATED.  PETITIONER, A PRESENTLY DEFUNCT INTERSTATE MOTOR CARRIER
WHICH HAD ITS PRINCIPAL PLACE OF BUSINESS IN CALIFORNIA, SUED
RESPONDENT, A SHIPPER, IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS FOR UNDERPAYMENT OF FREIGHT CHARGES.  RESPONDENT
COUNTERCLAIMED FOR DAMAGES TO ITS FREIGHT.  LOCAL TRIAL COUNSEL WAS
ENGAGED FOR THE SUIT BY PETITIONER'S GENERAL COUNSEL IN LOS ANGELES. 
THE TRIAL COURT ULTIMATELY DISMISSED PETITIONER'S COMPLAINT AND ENTERED
JUDGMENT FOR RESPONDENT FOR $11,347.52 ON ITS COUNTERCLAIM.  PETITIONER
FILED A MOTION FOR NEW TRIAL, WHICH WAS DENIED ON JUNE 28, 1961.  ON
THAT DATE PETITIONER'S GENERAL COUNSEL, WHO BY VIRTUE OF THE FACT THAT
PETITIONER WAS WINDING UP ITS BUSINESS DURING 1961 HAD BEEN DELEGATED
SOLE RESPONSIBILITY FOR ALL CORPORATE DECISIONS WITH RESPECT TO PENDING
LITIGATION, WAS VACATIONING IN MEXICO AND COULD NOT BE REACHED.  HE DID
NOT RETURN TO THIS COUNTRY UNTIL JULY 20.  IN VIEW OF TRIAL COUNSEL'S
INABILITY TO CONTACT THE GENERAL COUNSEL IN ORDER TO ASK WHETHER TO
APPEAL, HE INSTEAD CAME BEFORE THE DISTRICT COURT IN ILLINOIS ON JULY
13, STATED HIS PROBLEM, AND ASKED FOR AN EXTENSION OF TIME WITHIN WHICH
TO APPEAL BEYOND THE 30-DAY LIMIT PRESCRIBED BY FED. RULES CIV.  PROC.,
73(A), AN EXTENSION WHICH BY THE TERMS OF THE RULE IS LIMITED TO A
PERIOD "NOT EXCEEDING 30 DAYS FROM THE EXPIRATION OF THE ORIGINAL TIME
HEREIN PRESCRIBED."  OPPOSING COUNSEL, HAVING BEEN GIVEN NOTICE, WAS
PRESENT.  THE MOTION JUDGE GRANTED AN EXTRA TWO WEEKS, UNTIL AUGUST
11.  NOTICE OF APPEAL WAS FILED ON AUGUST 11.  THE COURT OF APPEALS
INITIALLY DENIED A MOTION OF RESPONDENT TO DISMISS THE APPEAL, AND
CALLED FOR BRIEFS ON THE MERITS.  THE COURT THEREAFTER RECONSIDERED AND
DISMISSED THE APPEAL, HOLDING THAT A SHOWING OF "EXCUSABLE NEGLECT
BASED ON A FAILURE OF A PARTY TO LEARN OF THE ENTRY OF THE JUDGMENT,"
FED. RULES CIV. PROC., 73(A), HAD NOT BEEN MADE OUT TO THE MOTION
JUDGE, THAT THERE WAS HENCE NO BASIS FOR WAIVING THE 30-DAY LIMIT, AND
THAT THE APPEAL WAS UNTIMELY FILED AND HAD TO BE DISMISSED FOR LACK OF
APPELLATE JURISDICTION.  303 F.2D 609. 

THE DISTRICT COURT PROPERLY ENTERTAINED THE MOTION HERE IN QUESTION
TO EXTEND PETITIONER'S TIME TO APPEAL TO THE COURT OF APPEALS BEFORE
THE INITIAL 30 DAYS ALLOWED FOR DOCKETING THE APPEAL HAD ELAPSED.  FED.
RULES CIV. PROC., 73(A), WHICH GOVERNS HERE, IS NOT LIMITED TO MOTIONS
MADE AFTER THE 30 DAYS HAVE EXPIRED.  SEE 7 MOORE, FEDERAL PRACTICE (2D
ED. 1955), PARA. 73.09(3); NORTH UMBERLAND MINING CO. V. STANDARD ACC. 
INS.  CO., 193 F.2D 951, 952 (C.A. 9TH CIR. 1952); PLANT ECONOMY, INC.,
V. MIRROR INSULATION CO., 308 F.2D 275, 276-277 (C.A. 3D CIR. 1962). 
THE STANDARD APPLICABLE ON SUCH A MOTION, WHETHER IT IS MADE BEFORE OR
AFTER THE 30 DAYS HAVE RUN, IS THAT THE MOVANT MUST SHOW "EXCUSABLE
NEGLECT BASED ON A FAILURE OF A PARTY TO LEARN OF THE ENTRY OF THE
JUDGMENT," FED. RULES CIV. PROC., 73(A).  COMPARE 7 MOORE, SUPRA, PARA.
73.09(3); NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO RULE 73(A),
QUOTED IN 7 MOORE, SUPRA, PARA. 73.01(5), AT P. 3111; KNOWLES V. UNITED
STATES, 260 F.2D 852, 854 (C.A. 5TH CIR. 1958).  IN VIEW OF THE OBVIOUS
GREAT HARDSHIP TO A PARTY WHO RELIES UPON THE TRIAL JUDGE'S FINDING OF
"EXCUSABLE NEGLECT" PRIOR TO THE EXPIRATION OF THE 30-DAY PERIOD AND
THEN SUFFERS REVERSAL OF THE FINDING, IT SHOULD BE GIVEN GREAT
DEFERENCE BY THE REVIEWING COURT.  WHATEVER THE PROPER RESULT AS AN
INITIAL MATTER ON THE FACTS HERE, THE RECORD CONTAINS A SHOWING OF
UNIQUE CIRCUMSTANCES SUFFICIENT THAT THE COURT OF APPEALS OUGHT NOT TO
HAVE DISTURBED THE MOTION JUDGE'S RULING.  THE JUDGMENT IS VACATED AND
THE CASE IS REMANDED TO THE COURT OF APPEALS SO THAT PETITIONER'S
APPEAL MAY BE HEARD ON ITS MERITS. 

MR. JUSTICE HARLAN, DISSENTING. 

I WOULD HAVE DENIED CERTIORARI ON THE GROUND THAT THIS CASE DOES NOT
QUALIFY FOR REVIEW UNDER RULE 19 OF THIS COURT. 

REACHING THE MERITS, HOWEVER, I WOULD AFFIRM THE JUDGMENT BELOW
SUBSTANTIALLY FOR THE REASONS GIVEN BY THE COURT OF APPEALS.  HARRIS
TRUCK LINES, INC., V. CHERRY MEAT PACKERS, INC., 303 F.2D 609.  CF.
LINK V. WABASH RAILROAD CO., 370 U.S. 626, 633-634; UNITED STATES V.
ROBINSON, 361 U.S. 220. 
..END :


















ARLAN'S DEPARTMENT STORE OF LOUISVILLE V. KENTUCKY 371 U.S. 218 


NO. 503.  DECIDED DECEMBER 17, 1962.  - REPORTED BELOW:  357 S.W.2D
708. 


THE OWNERS OF THREE RETAIL STORES IN KENTUCKY WERE FINED FOR EMPLOYING
PERSONS IN THEIR BUSINESSES ON SUNDAY IN VIOLATION OF A KENTUCKY
STATUTE, AND THE CONVICTIONS WERE SUSTAINED AGAINST THEIR CLAIM THAT
THE STATUTE VIOLATED THE FIRST AMENDMENT, APPLICABLE TO THE STATES BY
REASON OF THE FOURTEENTH AMENDMENT.  HELD:  AN APPEAL TO THIS COURT IS
DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

ARLAN'S DEPARTMENT STORE OF LOUISVILLE, INC., ET AL. V. KENTUCKY. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS IS A CRIMINAL PROSECUTION OF THE OWNERS OF THREE RETAIL STORES
FOR EMPLOYING PERSONS IN THEIR BUSINESSES ON SUNDAY.  (FN1)  EACH WAS
FINED $20 AND COSTS AND THE CONVICTIONS WERE SUSTAINED (357 S.W.2D 708)
AGAINST THE CLAIM THAT THE LAWS VIOLATED THE FIRST AMENDMENT,
APPLICABLE TO THE STATES BY REASON OF THE FOURTEENTH AMENDMENT.  THE
CASE DIFFERS FROM BRAUNFELD V. BROWN, 366 U.S. 599, AND GALLAGHER V.
CROWN KOSHER MARKET, 366 U.S. 617, IN THAT THOSE WHO ACTUALLY OBSERVE
THE SABBATH ON A DAY OF THE WEEK OTHER THAN SUNDAY ARE EXEMPT FROM THE
PENAL PROVISIONS.  (FN2)  BUT AS I INDICATED IN MY DISSENT IN MCGOWAN
V. MARYLAND, 366 U.S. 420, 561, THE UNCONSTITUTIONALITY OF SUNDAY LAWS
STRIKES MUCH DEEPER.  BY WHAT AUTHORITY CAN GOVERNMENT COMPEL ONE
PERSON NOT TO WORK ON SUNDAY BECAUSE THE MAJORITY OF THE POPULACE DEEMS
SUNDAY TO BE A HOLY DAY?  MOSLEMS MAY SOMEDAY CONTROL A STATE
LEGISLATURE.  COULD THEY MAKE CRIMINAL THE OPENING OF A SHOP ON
FRIDAY?  WOULD NOT WE CHRISTIANS FERVENTLY BELIEVE, IF THAT CAME TO
PASS, THAT GOVERNMENT HAD NO AUTHORITY TO MAKE US BOW TO THE SCRUPLES
OF THE MOSLEM MAJORITY? 

I SAID IN MY DISSENT IN THE MCGOWAN CASE: 

"  ...  IT IS A STRANGE BILL OF RIGHTS THAT MAKES IT POSSIBLE FOR THE
DOMINANT RELIGIOUS GROUP TO BRING THE MINORITY TO HEEL BECAUSE THE
MINORITY, IN THE DOING OF ACTS WHICH INTRINSICALLY ARE WHOLESOME AND
NOT ANTISOCIAL, DOES NOT DEFER TO THE MAJORITY'S RELIGIOUS BELIEFS. 
SOME HAVE RELIGIOUS SCRUPLES AGAINST EATING PORK.  THOSE SCRUPLES, NO
MATTER HOW BIZARRE THEY MIGHT SEEM TO SOME, ARE WITHIN THE AMBIT OF THE
FIRST AMENDMENT  ...  .  IS IT POSSIBLE THAT A MAJORITY OF A STATE
LEGISLATURE HAVING THOSE RELIGIOUS SCRUPLES COULD MAKE IT CRIMINAL FOR
THE NONBELIEVER TO SELL PORK?   SOME HAVE RELIGIOUS SCRUPLES AGAINST
SLAUGHTERING CATTLE.  COULD A STATE LEGISLATURE, DOMINATED BY THAT
GROUP, MAKE IT CRIMINAL TO RUN AN ABATTOIR?  ...  A LEGISLATURE OF
CHRISTIANS CAN NO MORE MAKE MINORITIES CONFORM TO THEIR WEEKLY REGIME
THAN A LEGISLATURE OF MOSLEMS, OR A LEGISLATURE OF HINDUS.   THE
RELIGIOUS REGIME OF EVERY GROUP MUST BE RESPECTED - UNLESS IT CROSSES
THE LINE OF CRIMINAL CONDUCT.  BUT NO ONE CAN BE FORCED TO COME TO A
HALT BEFORE IT, OR REFRAIN FROM DOING THINGS THAT WOULD OFFEND IT.
THAT IS MY READING OF THE ESTABLISHMENT CLAUSE AND THE FREE EXERCISE
CLAUSE."  366 U.S., AT 575. 

THE RELIGIOUS NATURE OF THIS STATE REGULATION IS EMPHASIZED BY THE
FACT THAT IT EXEMPTS "MEMBERS OF A RELIGIOUS SOCIETY" WHO ACTUALLY
OBSERVE THE SABBATH ON A DAY OTHER THAN SUNDAY.  THE LAW IS THUS
PLAINLY AN AID TO ALL ORGANIZED RELIGIONS, BRINGING TO HEEL ANYONE WHO
VIOLATES THE RELIGIOUS SCRUPLES OF THE MAJORITY BY SEEKING HIS
SALVATION NOT THROUGH ORGANIZED RELIGION BUT ON HIS OWN. 

I SEE NO POSSIBLE WAY BY WHICH THIS LAW CAN BE SUSTAINED UNDER THE
FIRST AMENDMENT. 

"  ...  IF A RELIGIOUS LEAVEN IS TO BE WORKED INTO THE AFFAIRS OF OUR
PEOPLE, IT IS TO BE DONE BY INDIVIDUALS AND GROUPS, NOT BY THE
GOVERNMENT.  THIS NECESSARILY MEANS, FIRST, THAT THE DOGMA, CREED,
SCRUPLES, OR PRACTICES OF NO RELIGIOUS GROUP OR SECT ARE TO BE
PREFERRED OVER THOSE OF ANY OTHERS; SECOND, THAT NO ONE SHALL BE
INTERFERED WITH BY GOVERNMENT FOR PRACTICING THE RELIGION OF HIS
CHOICE; THIRD, THAT THE STATE MAY NOT REQUIRE ANYONE TO PRACTICE A
RELIGION OR EVEN ANY RELIGION; AND FOURTH, THAT THE STATE CANNOT COMPEL
ONE SO TO CONDUCT HIMSELF AS NOT TO OFFEND THE RELIGIOUS SCRUPLES OF
ANOTHER.  THE IDEA, AS I UNDERSTAND IT, WAS TO LIMIT THE POWER OF
GOVERNMENT TO ACT IN RELIGIOUS MATTERS  ...  NOT TO LIMIT THE FREEDOM
OF RELIGIOUS MEN TO ACT RELIGIOUSLY NOR TO RESTRICT THE FREEDOM OF
ATHEISTS OR AGNOSTICS."  366 U.S., AT 563-564. 

FN1  KENTUCKY REV. STAT. SEC. 436.160 READS IN RELEVANT PART AS
FOLLOWS: 

"(1)  ANY PERSON WHO WORKS ON SUNDAY AT HIS OWN OR AT ANY OTHER
OCCUPATION OR EMPLOYS ANY OTHER PERSON, IN LABOR OR OTHER BUSINESS,
WHETHER FOR PROFIT OR AMUSEMENT, UNLESS HIS WORK OR THE EMPLOYMENT OF
OTHERS IS IN THE COURSE OF ORDINARY HOUSEHOLD DUTIES, WORK OF NECESSITY
OR CHARITY OR WORK REQUIRED IN THE MAINTENANCE OR OPERATION OF A PUBLIC
SERVICE OR PUBLIC UTILITY PLANT OR SYSTEM, SHALL BE FINED NOT LESS THAN
TWO DOLLARS NOR MORE THAN FIFTY DOLLARS.  THE EMPLOYMENT OF EVERY
PERSON EMPLOYED IN VIOLATION OF THIS SUBSECTION SHALL BE DEEMED A
SEPARATE OFFENSE. 

"(2)  PERSONS WHO ARE MEMBERS OF A RELIGIOUS SOCIETY WHICH OBSERVICES
AS A SABBATH ANY OTHER DAY IN THE WEEK THAN SUNDAY SHALL NOT BE LIABLE
TO THE PENALTY PRESCRIBED IN SUBSECTION (1) OF THIS SECTION, IF THEY
OBSERVE AS A SABBATH ONE DAY IN EACH SEVEN. 

"(3)  SUBSECTION (1) OF THIS SECTION SHALL NOT APPLY TO AMATEUR
SPORTS, ATHLETIC GAMES, OPERATION OF MOVING PICTURE SHOWS, CHAUTAUQUAS,
FILLING STATIONS OR OPERA." 

FN2  ID., SUBSECTION (2). 
..END :








JOHN J. CASALE, INC. V. UNITED STATES 371 U.S. 222 


NO. 483.  DECIDED DECEMBER 17, 1962.  - 208 F. SUPP. 55, AFFIRMED. 


JOHN J. CASALE, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















CLARK V. LOUISIANA 371 U.S. 222 


NO. 626, MISC.  DECIDED DECEMBER 17, 1962.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  242 LA. 914, 140 SO. 2D 1. 


CLARK V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, INC. V. UNITED STATES 371
U.S. 223 


NO. 479.  DECIDED DECEMBER 17, 1962.  - 205 F. SUPP. 592, AFFIRMED. 


NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, INC., ET AL. V. UNITED
STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE STEWART IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :













FORD V. FORD 371 U.S. 187 


NO. 63.  ARGUED NOVEMBER 15, 1962.  - DECIDED DECEMBER 10, 1962.  - 239
S.C. 305, 123 S.E.2D 33, REVERSED. 


AFTER BEING INFORMED THAT A HUSBAND AND HIS ESTRANGED WIFE HAD REACHED
AN AGREEMENT CONCERNING THE CUSTODY OF THEIR CHILDREN, A VIRGINIA COURT
DISMISSED A PETITION FOR HABEAS CORPUS WHICH HAD BEEN FILED BY THE
HUSBAND IN ORDER TO OBTAIN THEIR CUSTODY.  SUBSEQUENTLY, WHILE THE
CHILDREN WERE WITH THEIR MOTHER IN SOUTH CAROLINA, SHE SUED IN A COURT
OF THAT STATE TO HAVE FULL CUSTODY AWARDED TO HER, AND THAT WAS DONE IN
A PROCEEDING IN WHICH THE HUSBAND APPEARED AND CONTENDED THAT IT WAS A
VIOLATION OF THE AGREEMENT REACHED IN VIRGINIA WHICH WAS THE BASIS OF
THE VIRGINIA COURT'S ORDER OF DISMISSAL.  THE SUPREME COURT OF SOUTH
CAROLINA REVERSED, ON THE GROUND THAT THE JUDGMENT OF THE VIRGINIA
COURT WAS RES JUDICATA AND BINDING ON THE SOUTH CAROLINA COURTS UNDER
THE FULL FAITH AND CREDIT CLAUSE OF THE FEDERAL CONSTITUTION, IN THE
ABSENCE OF A CHANGE OF CIRCUMSTANCES WARRANTING A CHANGE OF THE CUSTODY
OF THE CHILDREN.  HELD: EVEN IF THE FULL FAITH AND CREDIT CALUSE IS
APPLICABLE TO CASES INVOLVING CUSTODY OF CHILDREN, THE COURTS OF SOUTH
CAROLINA WERE NOT BOUND BY THE VIRGINIA ORDER OF DISMISSAL HERE, SINCE
THAT ORDER WAS NOT RES JUDICATA IN VIRGINIA.  PP. 187-194. 

FORD V. FORD. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A CONTROVERSY BETWEEN A HUSBAND AND WIFE OVER THE CUSTODY OF
THEIR THREE YOUNG CHILDREN WHICH RAISES QUESTIONS UNDER THE FULL FAITH
AND CREDIT CLAUSE OF THE UNITED STATES CONSTITUTION.  (FN1)  THEIR
FIRST LITIGATION WAS IN 1959 WHEN THE HUSBAND FILED IN THE RICHMOND
VIRGINIA LAW AND EQUITY COURT A PETITION FOR HABEAS CORPUS ALLEGING
THAT THE WIFE HAD THE CHILDREN BUT WAS NOT A SUITABLE PERSON TO KEEP
THEM AND ASKING THAT THEY BE PRODUCED BEFORE THE COURT AND CUSTODY
AWARDED TO HIM.  THE WIFE PROMPTLY ANSWERED, ALLEGING THAT SHE WAS THE
PROPER PERSON TO HAVE CUSTODY OF THE CHILDREN AND ASKING THAT THE WRIT
BE DISMISSED.  THEREAFTER NEGOTIATIONS TOOK PLACE BETWEEN THE PARENTS,
BOTH BEING REPRESENTED BY COUNSEL, AND THEY AGREED THAT THE HUSBAND
WAS, WITH MINOR EXCEPTIONS, TO HAVE CUSTODY OF THE CHILDREN DURING THE
SCHOOL YEAR AND THE WIFE WAS TO HAVE CUSTODY DURING SUMMER VACATION AND
OTHER HOLIDAYS.  WHEN NOTIFIED OF THIS AGREEMENT, THE RICHMOND COURT
ENTERED THE FOLLOWING ORDER: 

"IT BEING REPRESENTED TO THE COURT BY COUNSEL THAT THE PARTIES HERETO
HAVE AGREED CONCERNING THE CUSTODY OF THE INFANT CHILDREN, IT IS
ORDERED THAT THIS CASE BE DISMISSED." 

SOME NINE MONTHS LATER, AUGUST 10, 1960, WHILE THE THREE CHILDREN
WERE WITH THEIR MOTHER IN GREENVILLE, SOUTH CAROLINA, SHE BEGAN THIS
SUIT FOR FULL CUSTODY IN THE GREENVILLE COUNTY JUVENILE AND DOMESTIC
RELATIONS COURT, AGAIN ALLEGING THAT SHE WAS THE PROPER PERSON TO HAVE
CUSTODY AND THAT THE HUSBAND WAS NOT.  SERVICE WAS HAD UPON THE
HUSBAND, WHO ANSWERED, CHARGING THAT FOR REASONS SET OUT THE MOTHER WAS
NOT FIT TO HAVE CUSTODY OF THE CHILDREN AND ASSERTING THAT HE WAS.  HE
ALSO SET UP AS A DEFENSE THAT: 

"  ...  PLAINTIFF HAS VIOLATED AND BREACHED THE AGREEMENT MADE
BETWEEN THE PARTIES BY AND WITH THEIR RESPECTIVE LEGAL COUNSEL AND
FURTHER VIOLATED THE ORDER OF THE COURT OF RECORD IN RICHMOND, VIRGINIA
THAT WAS DULY ISSUED AND BASED UPON SAID AGREEMENT." 

AFTER HEARING TESTIMONY FROM 11 WITNESSES INCLUDING THE HUSBAND AND
WIFE, THE TRIAL JUDGE FOUND AS A FACT THAT WHILE BOTH THE FATHER AND
MOTHER WERE FIT PERSONS TO HAVE THE CHILDREN, IT WAS "TO THE BEST
INTEREST OF THE CHILDREN THAT THE MOTHER HAVE CUSTODY AND CONTROL." 
THE JUDGE ALSO REJECTED THE HUSBAND'S ARGUMENT THAT THE ORDER OF
DISMISSAL IN THE VIRGINIA COURT SHOULD BE TREATED AS RES JUDICATA OF
THE ISSUE OF FITNESS BEFORE THE SOUTH CAROLINA COURT. 

ON APPEAL THE COURT OF COMMON PLEAS, LIKE THE JUDGE OF THE JUVENILE
COURT, HELD THAT UNDER THE LAW OF SOUTH CAROLINA THE INTERESTS OF THE
CHILDREN WERE "PARAMOUNT" AND THAT IT WAS THEIR WELFARE WHICH HAD TO BE
PROTECTED.  IT DECIDED THAT, WHILE BOTH PARENTS WOULD BE SUITABLE
CUSTODIANS, THE BEST INTERESTS OF THE CHILDREN REQUIRED THAT THE WIFE
HAVE CUSTODY DURING THE SCHOOL MONTHS AND THE HUSBAND DURING THE OTHER
PARTS OF THE YEAR, IN EFFECT INVERTING THE ARRANGEMENT PREVIOUSLY MADE
IN THE PARENTS' AGREEMENT.  IN REJECTING THE HUSBAND'S CONTENTION THAT
SOUTH CAROLINA COURTS SHOULD BE BOUND BY THE DISMISSAL OF THE HABEAS
CORPUS PROCEEDINGS IN VIRGINIA WHICH WAS BASED ON THE PARENTS'
AGREEMENT, THE COURT SAID: 

"TO HOLD THAT THE CUSTODY OF THESE THREE CHILDREN WAS FULLY AND
FINALLY DETERMINED IN RICHMOND, VIRGINIA, BY THE AGREEMENT REACHED
BETWEEN THE PLAINTIFF'S ATTORNEYS AND THE DEFENDANT'S ATTORNEYS WOULD
BE UNFAIR TO THE CHILDREN AND TOO HARSH A RULE TO FOLLOW." 

ON APPEAL THE SUPREME COURT OF SOUTH CAROLINA REVERSED.  239 S.C.
305, 123 S.E.2D 33 (1961).  THAT COURT, AFTER A REVIEW OF CERTAIN
VIRGINIA CASES, SAID: 

"IF THE RESPONDENT (THE WIFE) HERE HAD INSTITUTED IN THE COURTS OF
VIRGINIA THE ACTION COMMENCED BY HER IN THE COURTS OF THIS STATE, THE
APPELLANT COULD HAVE SUCCESSFULLY INTERPOSED A PLEA OF RES JUDICATA AS
A DEFENSE TO SAID ACTION.  SINCE THE JUDGMENT ENTERED IN THE VIRGINIA
COURT BY AGREEMENT OR CONSENT IS RES JUDICATA IN THAT STATE, IT IS RES
JUDICATA AND ENTITLED TO FULL FAITH AND CREDIT IN THIS STATE.  WE ARE
REQUIRED UNDER ART. IV, SEC. 1 OF THE CONSTITUTION OF THE UNITED STATES
TO GIVE THE SAME FAITH AND CREDIT IN THIS STATE TO THE 'DISMISSED
AGREED' ORDER OR JUDGMENT AS 'BY LAW OR USAGE' THE COURTS OF VIRGINIA
WOULD GIVE TO SUCH ORDER OR JUDGMENT."  239 S.C., AT 317, 123 S.E.2D,
AT 39. 

WE GRANTED CERTIORARI TO CONSIDER THIS QUESTION OF FULL FAITH AND
CREDIT UPON WHICH THE SOUTH CAROLINA SUPREME COURT'S JUDGMENT RESTS. 
369 U.S. 801 (1962). 

THE HUSBAND HAS ARGUED THAT WE NEED NOT REACH THE FULL FAITH AND
CREDIT QUESTION BECAUSE THE STATE SUPREME COURT RESTED ITS DECISION ON
SOUTH CAROLINA LAW RATHER THAN ON THE FULL FAITH AND CREDIT CLAUSE OF
THE FEDERAL CONSTITUTION.  THIS ARGUMENT IS BASED ON LANGUAGE IN THE
CLOSING PART OF THE COURT'S OPINION, WHERE IT WAS SAID THAT "A JUDICIAL
AWARD OF THE CUSTODY OF A CHILD IS NEVER FINAL" AND THAT A SOUTH
CAROLINA COURT MAY "EVEN ON ITS OWN MOTION" RECONSIDER THE CUSTODY OF A
CHILD IF NEW FACTS AND CIRCUMSTANCES MAKE IT NECESSARY OR DESIRABLE FOR
THE CHILD'S WELFARE TO DO SO.  THE COURT CONCLUDED, HOWEVER, THAT IT
FOUND IN THE PLEADINGS AND THE RECORD "NEITHER ALLEGATION NOR PROOF OF
ANY CHANGED CIRCUMSTANCES AUTHORIZING A CHANGE OF THE CUSTODY OF THE
MINOR CHILDREN OF THE PARTIES TO THIS ACTION."  239 S.C., AT 317-318,
123 S.E.2D, AT 39.  IT SEEMS CLEAR TO US THAT THE STATE SUPREME COURT
WAS MERELY STATING THAT UNDER ITS OWN LAW IT COULD MODIFY CUSTODY
DECREES IF THE CIRCUMSTANCES HAD CHANGED.  (FN2)  IT SEEMS EQUALLY
CLEAR TO US THAT THE COURT WAS NOT ATTEMPTING TO RELY ON SOUTH CAROLINA
LAW FOR ITS CONCLUSION THAT, SINCE THERE WERE NO CHANGED CIRCUMSTANCES,
IT HAD TO GIVE EFFECT TO THE PRIOR VIRGINIA DECREE.  IN PREVIOUSLY
STATING THE ISSUE SUBMITTED IN THE CASE, THE COURT HAD SAID THIS: 

"IT WAS FURTHER SUBMITTED THAT THE JUVENILE AND DOMESTIC RELATIONS
COURT OF GREENVILLE COUNTY MUST RECOGNIZE, IN ACCORDANCE WITH THE FULL
FAITH AND CREDIT CLAUSE OF THE CONSTITUTION OF THE UNITED STATES, THE
AGREED ORDER OF DISMISSAL OF THE VIRGINIA COURT AND THAT SUCH WAS RES
JUDICATA, UNLESS THERE WAS EVIDENCE OF SUBSEQUENT MISCONDUCT ON THE
PART OF THE APPELLANT OR A CHANGE OF CONDITIONS WARRANTING A CHANGE OF
THE CUSTODY OF THE CHILDREN."  239 S.C., AT 309, 123 S.E.2D, AT 34-35. 

WHAT THE COURT THEN WENT ON TO DISCUSS WAS NOT WHETHER THE VIRGINIA
DECREE WAS RES JUDICATA UNDER SOUTH CAROLINA LAW BUT WHETHER IT WAS RES
JUDICATA UNDER VIRGINIA LAW AND THEREFORE ENTITLED TO FULL FAITH AND
CREDIT IN SOUTH CAROLINA.  WE ARE CONVINCED THAT THE COURT RESTED ITS
DECISION SQUARELY AND SOLELY ON ITS READING OF VIRGINIA LAW AND OF THE
FULL FAITH AND CREDIT CLAUSE AS REQURING SOUTH CAROLINA, IN THE ABSENCE
OF A CHANGE OF CIRCUMSTANCES, TO GIVE FULL EFFECT TO THE PRIOR VIRGINIA
DECREE.  NOTHING IN THE COURT'S OPINION SUGGESTS WHAT IT MIGHT HAVE
DONE UNDER SOUTH CAROLINA LAW HAD IT NOT SO INTERPRETED THE FULL FAITH
AND CREDIT CLAUSE. 

WHETHER THE SOUTH CAROLINA COURT'S INTERPRETATION OF THE FULL FAITH
AND CREDIT CLAUSE IS A CORRECT ONE IS A QUESTION WE HAVE PREVIOUSLY
RESERVED.  (FN3)  WE NEED NOT REACH THAT QUESTION HERE.  THE FULL FAITH
AND CREDIT CLAUSE, IF APPLICABLE TO A CUSTODY DECREE, WOULD REQUIRE
SOUTH CAROLINA TO RECOGNIZE THE VIRGINIA ORDER AS BINDING ONLY IF A
VIRGINIA COURT WOULD BE BOUND BY IT.  RECOGNIZING THIS, THE SOUTH
CAROLINA SUPREME COURT'S OPINION WAS LARGELY DEVOTED TO A REVIEW OF
VIRGINIA CASES TO DETERMINE THE EFFECT IN VIRGINIA OF THE ORDER OF
DISMISSAL.  THE CASES RELIED ON BY THE SOUTH CAROLINA COURT DO HOLD
THAT THE PARTIES TO SOME ACTIONS MAY AGREE TO A DISMISSAL AND THAT IN
SUCH CASES A "DISMISSED AGREED" ORDER IS RES JUDICATA BETWEEN THE
PARTIES.  ALL OF THE VIRGINIA CASES DISCUSSED BY THE SOUTH CAROLINA
COURT, HOWEVER, INVOLVED PURELY PRIVATE CONTROVERSIES (FN4) WHICH
PRIVATE LITIGANTS CAN SETTLE, AND NONE INVOLVED THE CUSTODY OF CHILDREN
WHERE THE PUBLIC INTEREST IS STRONG.  IN EACH CASE THE VIRGINIA
DISMISSAL WAS THE RESULT OF AN AGREEMENT BETWEEN THE PARTIES EQUIVALENT
TO A COMPROMISE INTENDED TO SETTLE A CAUSE OF ACTION.  (FN5)  WHATEVER
THE EFFECT GIVEN SUCH DISMISSALS WHERE ONLY PRIVATE INTERESTS OF
PARTIES ARE INVOLVED, CASES INVOLVING CUSTODY OF CHILDREN RAISE VERY
DIFFERENT CONSIDERATIONS.  WE ARE OF THE OPINION THAT VIRGINIA LAW,
WHICH DOES NOT TREAT A CONTRACT BETWEEN THE PARENTS AS A BAR TO THE
COURT'S JURISDICTION IN CUSTODY CASES, (FN6) WOULD SIMILARLY NOT TREAT
AS RES JUDICATA THE DISMISSAL IN THIS CASE. 

THE VIRGINIA COURT HELD NO HEARINGS AS TO THE CUSTODY OF THE
CHILDREN.  IN ENTERING ITS ORDER OF DISMISSAL, THE COURT NEITHER
EXAMINED THE TERMS OF THE PARENTS' AGREEMENT NOR EXERCISED ITS OWN
JUDGMENT OF WHAT WAS BEST FOR THE CHILDREN.  THE COURT'S ORDER MEANT NO
MORE THAN THAT THE PARENTS HAD MADE AN AGREEMENT BETWEEN THEMSELVES. 
VIRGINIA LAW, LIKE THAT OF PROBABLY EVERY STATE IN THE UNION, (FN7)
REQUIRES THE COURT TO PUT THE CHILD'S INTEREST FIRST.  THE SUPREME
COURT OF APPEALS OF VIRGINIA HAS STATED THIS POLICY WITH UNMISTAKABLE
CLARITY: 

"IN VIRGINIA, WE HAVE ESTABLISHED THE RULE THAT THE WELFARE OF THE
INFANT IS THE PRIMARY, PARAMOUNT, AND CONTROLLING CONSIDERATION OF THE
COURT IN ALL CONTROVERSIES BETWEEN PARENTS OVER THE CUSTODY OF THEIR
MINOR CHILDREN.  ALL OTHER MATTERS ARE SUBORDINATE."  MULLEN V. MULLEN,
188 VA. 259, 269, 49 S.E.2D 349, 354 (1948). 

UNFORTUNATELY, EXPERIENCE HAS SHOWN THAT THE QUESTION OF CUSTODY, SO
VITAL TO A CHILD'S HAPPINESS AND WELL-BEING, FREQUENTLY CANNOT BE LEFT
TO THE DISCRETION OF PARENTS.  THIS IS PARTICULARLY TRUE WHERE, AS
HERE, THE ESTRANGEMENT OF HUSBAND AND WIFE BECLOUDS PARENTAL JUDGMENT
WITH EMOTION AND PREJUDICE.  IN VIRGINIA, THE PARENTS CANNOT MAKE
AGREEMENTS WHICH WILL BIND COURTS TO DECIDE A CUSTODY CASE ONE WAY OR
THE OTHER.  THE VIRGINIA SUPREME COURT OF APPEALS HAS EMPHASIZED THIS
DEEP-ROOTED VIRGINIA POLICY BY DECLARING: "THE CUSTODY AND WELFARE OF
CHILDREN ARE NOT THE SUBJECT OF BARTER."  BUCHANAN V. BUCHANAN, 170 VA.
458, 477, 197 S.E. 426, 434 (1938). 

WHATEVER A VIRGINIA COURT MIGHT DO IN A CASE WHERE ANOTHER COURT HAD
EXERCISED ITS CONSIDERED JUDGMENT BEFORE AWARDING CUSTODY, (FN8) WE DO
NOT BELIEVE THAT, IN VIEW OF VIRGINIA'S STRONG POLICY OF SAFEGUARDING
THE WELFARE OF THE CHILD, A COURT OF THAT STATE WOULD CONSIDER ITSELF
BOUND BY A MERE ORDER OF DISMISSAL WHERE, AS HERE, THE TRIAL JUDGE
NEVER EVEN SAW, MUCH LESS PASSED UPON, THE PARENTS' PRIVATE AGREEMENT
FOR CUSTODY AND HEARD NO TESTIMONY WHATEVER UPON WHICH TO BASE A
JUDGMENT AS TO WHAT WOULD BE BEST FOR THE CHILDREN. 

WE HOLD THAT THE COURTS OF SOUTH CAROLINA WERE NOT PRECLUDED BY THE
FULL FAITH AND CREDIT CLAUSE FROM DETERMINING THE BEST INTEREST OF
THESE CHILDREN AND ENTERING A DECREE ACCORDINGLY.  IN HOLDING
OTHERWISE, THE SOUTH CAROLINA SUPREME COURT WAS IN ERROR.  THE CASE IS
REVERSED AND REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  U.S. CONST., ART. IV, SEC. 1, STATES: 

"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."  THE
STATUTE PASSED UNDER THIS AUTHORITY IS FOUND AT 28 U.S.C. SEC. 1738. 

FN2  WE HAVE HELD THAT A COURT IN ONE STATE CAN SO MODIFY A CUSTODY
DECREE MADE IN ANOTHER STATE.  NEW YORK EX REL. HALVEY V. HALVEY, 330
U.S. 610 (1947). 

FN3  KOVACS V. BREWER, 356 U.S. 604, 607 (1958); NEW YORK EX REL.
HALVEY V. HALVEY, 330 U.S. 610, 615-616 (1947). 

FN4  MURDEN V. WILBERT, 189 VA. 358, 53 S.E.2D 42 (1949) (NEGLIGENCE
ACTION ARISING OUT OF AUTOMOBILE ACCIDENT); HINTON V. NORFOLK & W.R.
CO., 137 VA. 605, 120 S.E. 135 (1923)(PERSONAL INJURY SUIT); BARDACH
IRON & STEEL CO. V. TENENBAUM, 136 VA. 163, 118 S.E. 502
(1923)(SELLER'S SUIT FOR BUYER'S BREACH OF CONTRACT). 

FN5  IBID.  IN A FOURTH CASE MENTIONED IN THE SOUTH CAROLINA OPINION,
VIRGINIA CONCRETE CO. V. BOARD OF SUPERVISORS, 197 VA. 821, 91 S.E.2D
415 (1956), THE DISMISSAL WAS AT THE MOTION OF PLAINTIFF'S COUNSEL AND
WAS "WITH PREJUDICE." 

FN6  GLOTH V. GLOTH, 154 VA. 511, 551, 153 S.E. 879, 892 (1930). 

FN7  SEE 17A AM. JUR., DIVORCE AND SEPARATION, SEC. 818 (1957) AND
CASES THERE COLLECTED. 

FN8  A CUSTODY DECREE ENTERED BY A VIRGINIA COURT "ORDINARILY" WILL
NOT BE ALTERED IN THE ABSENCE OF CHANGED CIRCUMSTANCES.  E.G., COLLINS
V. COLLINS, 183 VA. 408, 32 S.E.2D 657 (1945); DARNELL V. BARKER, 179
VA. 86, 18 S.E.2D 271 (1942).  EVEN WHERE THERE IS SUCH A DECREE, IT IS
ARGUABLE THAT VIRGINIA COURTS DO IN FACT MAKE DE NOVO REVIEWS OF THE
CORRECTNESS OF THE ORIGINAL DECREES.  SEE SEMMES V. SEMMES, 201 VA.
117, 109 S.E.2D 545 (1959); ANDREWS V. GEYER, 200 VA. 107, 104 S.E.2D
747 (1958). 
..END :


















SMITH V. EVENING NEWS ASSOCIATION 371 U.S. 195 


NO. 13.  ARGUED OCTOBER 10, 1962.  - DECIDED DECEMBER 10, 1962.  - 362
MICH. 350, 106 N.W.2D 785, REVERSED. 


AN EMPLOYEE BROUGHT SUIT IN A STATE COURT AGAINST HIS EMPLOYER,
SEEKING DAMAGES FOR BREACH OF A COLLECTIVE BARGAINING CONTRACT BETWEEN
HIS UNION AND THE EMPLOYER.  HE ALLEGED THAT THE EMPLOYER HAD VIOLATED
A CLAUSE IN THE CONTRACT PROHIBITING DISCRIMINATION AGAINST ANY
EMPLOYEE BECAUSE OF HIS MEMBERSHIP OR ACTIVITY IN THE UNION.  IT WAS
CONCEDED THAT SUCH CONDUCT WOULD CONSTITUTE AN UNFAIR LABOR PRACTICE
PROHIBITED BY SEC. 8 OF THE NATIONAL LABOR RELATIONS ACT.  HELD: THE
SUIT COULD BE MAINTAINED BY AN INDIVIDUAL EMPLOYEE, AND THE STATE
COURT'S JURISDICTION WAS NOT PRE-EMPTED UNDER THE RULE OF SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236.  PP. 195-201. 

SMITH V. EVENING NEWS ASSOCIATION. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS A BUILDING MAINTENANCE EMPLOYEE OF RESPONDENT EVENING
NEWS ASSOCIATION, A NEWSPAPER PUBLISHER ENGAGED IN INTERSTATE COMMERCE,
AND IS A MEMBER OF THE NEWSPAPER GUILD OF DETROIT, A LABOR ORGANIZATION
HAVING A COLLECTIVE BARGAINING CONTRACT WITH RESPONDENT.  PETITIONER,
INDIVIDUALLY AND AS ASSIGNEE OF 49 OTHER SIMILAR EMPLOYEES WHO WERE
ALSO GUILD MEMBERS, SUED RESPONDENT FOR BREACH OF CONTRACT IN THE
CIRCUIT COURT OF WAYNE COUNTY, MICHIGAN.  (FN1)  THE COMPLAINT STATED
THAT IN DECEMBER 1955 AND JANUARY 1956 OTHER EMPLOYEES OF RESPONDENT,
BELONGING TO ANOTHER UNION, WERE ON STRIKE AND RESPONDENT DID NOT
PERMIT PETITIONER AND HIS ASSIGNORS TO REPORT TO THEIR REGULAR SHIFTS,
ALTHOUGH THEY WERE READY ABLE AND AVAILABLE FOR WORK.  (FN2)  DURING
THE SAME PERIOD, HOWEVER, EMPLOYEES OF THE EDITORIAL, ADVERTISING AND
BUSINESS DEPARTMENTS, NOT COVERED BY COLLECTIVE BARGAINING AGREEMENTS,
WERE PERMITTED TO REPORT FOR WORK AND WERE PAID FULL WAGES EVEN THOUGH
THERE WAS NO WORK AVAILABLE.  RESPONDENT'S REFUSAL TO PAY FULL WAGES TO
PETITIONER AND HIS ASSIGNORS WHILE PAYING THE NONUNION EMPLOYEES, THE
COMPLAINT ASSERTED, VIOLATED A CLAUSE IN THE CONTRACT PROVIDING THAT
"THERE SHALL BE NO DISCRIMINATION AGAINST ANY EMPLOYEE BECAUSE OF HIS
MEMBERSHIP OR ACTIVITY IN THE GUILD." 

THE TRIAL COURT SUSTAINED RESPONDENT'S MOTION TO DISMISS FOR WANT OF
JURISDICTION ON THE GROUND THAT THE ALLEGATIONS, IF TRUE, WOULD MAKE
OUT AN UNFAIR LABOR PRACTICE UNDER THE NATIONAL LABOR RELATIONS ACT AND
HENCE THE SUBJECT MATTER WAS WITHIN THE EXCLUSIVE JURISIDCTION OF THE
NATIONAL LABOR RELATIONS BOARD.  THE MICHIGAN SUPREME COURT AFFIRMED,
362 MICH. 350, 106 N.W.2D 785, RELYING UPON SAN DIEGO TRADES COUNCIL V.
GARMON, 359 U.S. 236, AND LIKE PRE-EMPTION CASES.  (FN3) CERTIORARI WAS
GRANTED, 369 U.S. 827, AFTER THE DECISIONS OF THIS COURT IN LOCAL 174,
TEAMSTERS V. LUCAS FLOUR CO., 369 U.S. 95, AND DOWD BOX CO. V.
COURTNEY, 368 U.S. 502. 

LUCAS FLOUR AND DOWD BOX, AS WELL AS THE LATER ATKINSON V. SINCLAIR
REFINING CO., 370 U.S. 238, WERE SUITS UPON COLLECTIVE BARGAINING
CONTRACTS BROUGHT OR HELD TO ARISE UNDER SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT (FN4) AND IN THESE CASES THE JURISDICTION OF
THE COURTS WAS SUSTAINED ALTHOUGH IT WAS SERIOUSLY URGED THAT THE
CONDUCT INVOLVED WAS ARGUABLY PROTECTED OR PROHIBITED BY THE NATIONAL
LABOR RELATIONS ACT AND THEREFORE WITHIN THE EXCLUSIVE JURISDICTION OF
THE NATIONAL LABOR RELATIONS BOARD.  IN LUCAS FLOUR AS WELL AS IN
ATKINSON THE COURT EXPRESSLY REFUSED TO APPLY THE PRE-EMPTION DOCTRINE
OF THE GARMON CASE; AND WE LIKEWISE REJECT THAT DOCTRINE HERE WHERE THE
ALLEGED CONDUCT OF THE EMPLOYER, NOT ONLY ARGUABLY, BUT CONCEDEDLY, IS
AN UNFAIR LABOR PRACTICE WITHIN THE JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD.  (FN5)  THE AUTHORITY OF THE BOARD TO DEAL WITH AN
UNFAIR LABOR PRACTICE WHICH ALSO VIOLATES A COLLECTIVE BARGAINING
CONTRACT IS NOT DISPLACED BY SEC. 301, BUT IT IS NOT EXCLUSIVE AND DOES
NOT DESTROY THE JURISDICTION OF THE COURTS IN SUITS UNDER SEC. 301. 
IF, AS RESPONDENT STRONGLY URGES, THERE ARE SITUATIONS IN WHICH SERIOUS
PROBLEMS WILL ARISE FROM BOTH THE COURTS AND THE BOARD HAVING
JURISDICTION OVER ACTS WHICH AMOUNT TO AN UNFAIR LABOR PRACTICE, WE
SHALL FACE THOSE CASES WHEN THEY ARISE.  THIS IS NOT ONE OF THEM, IN
OUR VIEW, AND THE NATIONAL LABOR RELATIONS BOARD IS IN ACCORD.  (FN6) 

WE ARE LEFT WITH RESPONDENT'S CLAIM THAT THE PREDICATE FOR ESCAPING
THE GARMON RULE IS NOT PRESENT HERE BECAUSE THIS ACTION BY AN EMPLOYEE
TO COLLECT WAGES IN THE FORM OF DAMAGES IS NOT AMONG THOSE "SUITS FOR
VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION
...  ," AS PROVIDED IN SEC. 301.  THERE IS SUPPORT FOR RESPONDENT'S
POSITION IN DECISIONS OF THE COURT OF APPEALS, (FN7) AND IN ASSOCIATION
OF WESTINGHOUSE SALARIED EMPLOYEES V. WESTINGHOUSE CORP., 348 U.S. 437,
A MAJORITY OF THE COURT IN THREE SEPARATE OPINIONS CONCLUDED THAT SEC.
301 DID NOT GIVE THE FEDERAL COURTS JURISDICTION OVER A SUIT BROUGHT BY
A UNION TO ENFORCE EMPLOYEE RIGHTS WHICH WERE VARIOUSLY CHARACTERIZED
AS "PECULIAR IN THE INDIVIDUAL BENEFIT WHICH IS THEIR SUBJECT MATTER,"
"UNIQUELY PERSONAL" AND ARISING "FROM SEPARATE HIRING CONTRACTS BETWEEN
THE EMPLOYER AND EACH EMPLOYEE."  ID., AT 460, 461, 464. 

HOWEVER, SUBSEQUENT DECISIONS HERE HAVE REMOVED THE UNDERPINNINGS OF
WESTINGHOUSE AND ITS HOLDING IS NO LONGER AUTHORITATIVE AS A
PRECEDENT.  THREE OF THE JUSTICES IN THAT CASE WERE DRIVEN TO THEIR
CONCLUSION BECAUSE IN THEIR VIEW SEC. 301 WAS PROCEDURAL ONLY, NOT
SUBSTANTIVE, AND THEREFORE GRAVE CONSTITUTIONAL QUESTIONS WOULD BE
RAISED IF SEC. 301 WAS HELD TO EXTEND TO THE CONTROVERSY THERE
INVOLVED.  (FN8)  HOWEVER, THE SAME THREE JUSTICES OBSERVED THAT IF,
CONTRARY TO THEIR BELIEF, "CONGRESS HAS ITSELF DEFINED THE LAW OR
AUTHORIZED THE FEDERAL COURTS TO FASHION THE JUDICIAL RULES GOVERNING
THIS QUESTION, IT WOULD BE SELF-DEFEATING TO LIMIT THE SCOPE OF THE
POWER OF THE FEDERAL COURTS TO LESS THAN IS NECESSARY TO ACCOMPLISH
THIS CONGRESSIONAL AIM."  ID., AT 442.  TEXTILE WORKERS V. LINCOLN
MILLS, 353 U.S. 448, OF COURSE, HAS LONG SINCE SETTLED THAT SEC. 301
HAS SUBSTANTIVE CONTENT AND THAT CONGRESS HAS DIRECTED THE COURTS TO
FORMULATE AND APPLY FEDERAL LAW TO SUITS FOR VIOLATION OF COLLECTIVE
BARGAINING CONTRACTS.  THERE IS NO CONSTITUTIONAL DIFFICULTY AND SEC.
301 IS NOT TO BE GIVEN A NARROW READING.  ID., AT 456, 457.  SECTION
301 HAS BEEN APPLIED TO SUITS TO COMPEL ARBITRATION OF SUCH INDIVIDUAL
GRIEVANCES AS RATES OF PAY, HOURS OF WORK AND WRONGFUL DISCHARGE,
TEXTILE WORKERS V. LINCOLN MILLS, SUPRA; GENERAL ELECTRIC CO. V. LOCAL
205, UEW, 353 U.S. 547; TO OBTAIN SPECIFIC ENFORCEMENT OF AN
ARBITRATOR'S AWARD ORDERING REINSTATEMENT AND BACK PAY TO INDIVIDUAL
EMPLOYEES, UNITED STEELWORKERS V. ENTERPRISE WHEEL & CAR CORP., 363
U.S. 593; TO RECOVER WAGE INCREASES IN A CONTEST OVER THE VALIDITY OF
THE COLLECTIVE BARGAINING CONTRACT, DOWD BOX CO. V. COURTNEY, SUPRA;
AND TO SUITS AGAINST INDIVIDUAL UNION MEMBERS FOR VIOLATION OF A NO
STRIKE CLAUSE CONTAINED IN A COLLECTIVE BARGAINING AGREEMENT.  ATKINSON
V. SINCLAIR REFINING CO., SUPRA. 

THE CONCEPT THAT ALL SUITS TO VINDICATE INDIVIDUAL EMPLOYEE RIGHTS
ARISING FROM A COLLECTIVE BARGAINING CONTRACT SHOULD BE EXCLUDED FROM
THE COVERAGE OF SEC. 301 HAS THUS NOT SURVIVED.  THE RIGHTS OF
INDIVIDUAL EMPLOYEES CONCERNING RATES OF PAY AND CONDITIONS OF
EMPLOYMENT ARE A MAJOR FOCUS OF THE NEGOTIATION AND ADMINISTRATION OF
COLLECTIVE BARGAINING CONTRACTS.  INDIVIDUAL CLAIMS LIE AT THE HEART OF
THE GRIEVANCE AND ARBITRATION MACHINERY, ARE TO A LARGE DEGREE
INEVITABLY INTERTWINED WITH UNION INTERESTS AND MANY TIMES PRECIPITATE
GRAVE QUESTIONS CONCERNING THE INTERPRETATION AND ENFORCEABILITY OF THE
COLLECTIVE BARGAINING CONTRACT ON WHICH THEY ARE BASED.  TO EXCLUDE
THESE CLAIMS FROM THE AMBIT OF SEC. 301 WOULD STULTIFY THE
CONGRESSIONAL POLICY OF HAVING THE ADMINISTRATION OF COLLECTIVE
BARGAINING CONTRACTS ACCOMPLISHED UNDER A UNIFORM BODY OF FEDERAL
SUBSTANTIVE LAW.  THIS WE ARE UNWILLING TO DO. 

THE SAME CONSIDERATIONS FORECLOSE RESPONDENT'S READING OF SEC. 301 TO
EXCLUDE ALL SUITS BROUGHT BY EMPLOYEES INSTEAD OF UNIONS.  THE WORD
"BETWEEN," IT SUGGESTS, REFERS TO "SUITS," NOT "CONTRACTS," AND
THEREFORE ONLY SUITS BETWEEN UNIONS AND EMPLOYERS ARE WITHIN THE
PURVIEW OF SEC. 301.  ACCORDING TO THIS VIEW, SUITS BY EMPLOYEES FOR
BREACH OF A COLLECTIVE BARGAINING CONTRACT WOULD NOT ARISE UNDER SEC.
301 AND WOULD BE GOVERNED BY STATE LAW, IF NOT PRE-EMPTED BY GARMON, AS
THIS ONE WOULD BE, WHEREAS A SUIT BY A UNION FOR THE SAME BREACH OF THE
SAME CONTRACT WOULD BE A SEC. 301 SUIT RULED BY FEDERAL LAW.  NEITHER
THE LANGUAGE AND STRUCTURE OF SEC. 301 NOR ITS LEGISLATIVE HISTORY
REQUIRES OR PERSUASIVELY SUPPORTS THIS RESTRICTIVE INTERPRETATION,
WHICH WOULD FRUSTRATE RATHER THAN SERVE THE CONGRESSIONAL POLICY
EXPRESSED IN THAT SECTION.  "THE POSSIBILITY THAT INDIVIDUAL CONTRACT
TERMS MIGHT HAVE DIFFERENT MEANINGS UNDER STATE AND FEDERAL LAW WOULD
INEVITABLY EXERT A DISRUPTIVE INFLUENCE UPON BOTH THE NEGOTIATION AND
ADMINISTRATION OF COLLECTIVE AGREEMENTS."  LOCAL 174, TEAMSTERS V.
LUCAS FLOUR CO., SUPRA, AT 103. 

WE CONCLUDE THAT PETITIONER'S ACTION ARISES UNDER SEC. 301 AND IS NOT
PRE-EMPTED UNDER THE GARMON RULE.  (FN9)  THE JUDGMENT OF THE SUPREME
COURT OF MICHIGAN IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  THERE WAS NO GRIEVANCE ARBITRATION PROCEDURE IN THIS CONTRACT
WHICH HAD TO BE EXHAUSTED BEFORE RECOURSE COULD BE HAD TO THE COURTS. 
COMPARE ATKINSON V. SINCLAIR REFINING CO., 370 U.S. 238; DRAKE BAKERIES
INC. V. LOCAL 50, AMERICAN BAKERY WORKERS, 370 U.S. 254. 

FN2  A SMALL NUMBER OF THESE EMPLOYEES WERE PERMITTED TO DO SOME WORK
DURING THE STRIKE. 

FN3  GARNER V. TEAMSTERS UNION, 346 U.S. 485; WEBER V. ANHEUSER
BUSCH, 348 U.S. 468. 

FN4  "SUITS FOR VIOLATIONS OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THIS ACT, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES."  LABOR MANAGEMENT RELATIONS ACT, SEC. 301(A), 29 U.S.C. SEC.
185(A). 

FN5  "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER  ...  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  ...  ."  NATIONAL LABOR RELATIONS ACT, SEC.
8(A)(3), 29 U.S.C. SEC. 158(A)(3).  AN UNFAIR LABOR PRACTICE CHARGE
COULD HAVE BEEN FILED UNDER SEC. 10, BUT THAT REMEDY WAS NOT PURSUED
AND THE PRESENT PROCEEDING WAS COMMENCED AFTER THE SIX-MONTH LIMITATION
PERIOD PRESCRIBED IN SEC. 10(B) HAD EXPIRED. 

FN6  THE VIEW OF THE NATIONAL LABOR RELATIONS BOARD, MADE KNOWN TO
THIS COURT IN AN AMICUS CURIAE BRIEF FILED BY THE SOLICITOR GENERAL, IS
THAT OUSTING THE COURTS OF JURISDICTION UNDER SEC. 301 IN THIS CASE
WOULD NOT ONLY FAIL TO PROMOTE, BUT WOULD ACTUALLY OBSTRUCT, THE
PURPOSES OF THE LABOR MANAGEMENT RELATIONS ACT. 

THE BOARD HAS, ON PRIOR OCCASIONS, DECLINED TO EXERCISE ITS
JURISDICTION TO DEAL WITH UNFAIR LABOR PRACTICES IN CIRCUMSTANCES
WHERE, IN ITS JUDGMENT, FEDERAL LABOR POLICY WOULD BEST BE SERVED BY
LEAVING THE PARTIES TO OTHER PROCESSES OF THE LAW.  SEE, E.G.,
CONSOLIDATED AIRCRAFT CORP., 47 N.L.R.B. 694; SPIELBERG MFG. CO., 112
N.L.R.B. 1080. 

FN7  E.G., LOCAL LODGE 2040, I.A.M., V. SERVEL, INC., 268 F.2D 692
(C.A. 7TH CIR.); COPRA V. SURO, 236 F.2D 107 (C.A. 1ST CIR.); UNITED
PROTECTIVE WORKERS V. FORD MOTOR CO., 194 F.2D 997 (C.A. 7TH CIR.).
SEE ALSO DIMECO V. FISHER, 185 F. SUPP. 213 (D.N.J.)  AND CASES CITED
THEREIN. 

FN8  TWO OTHER JUSTICES, IN A SEPARATE OPINION, CONCLUDED THAT UNDER
SEC. 301 A UNION AS A PARTY PLAINTIFF MAY NOT ENFORCE THE WAGE CLAIMS
OF INDIVIDUAL EMPLOYEES. 

FN9  THE ONLY PART OF THE COLLECTIVE BARGAINING CONTRACT SET OUT IN
THIS RECORD IS THE NO-DISCRIMINATION CLAUSE.  RESPONDENT DOES NOT ARGUE
HERE AND WE NEED NOT CONSIDER THE QUESTION OF FEDERAL LAW OF WHETHER
PETITIONER, UNDER THIS CONTRACT, HAS STANDING TO SUE FOR BREACH OF THE
NO-DISCRIMINATION CLAUSE NOR DO WE DEAL WITH THE STANDING OF OTHER
EMPLOYEES TO SUE UPON OTHER CLAUSES IN OTHER CONTRACTS. 

MR. JUSTICE BLACK, DISSENTING. 

I WOULD AFFIRM THE MICHIGAN SUPREME COURT'S HOLDING THAT MICHIGAN
COURTS ARE WITHOUT JURISDICTION TO ENTERTAIN SUITS BY EMPLOYEES AGAINST
THEIR EMPLOYERS FOR DAMAGES MEASURED BY "BACK PAY" BASED ON
DISCRIMINATION, WHICH DISCRIMINATION SEC. 8(A) OF THE NATIONAL LABOR
RELATIONS ACT MAKES AN UNFAIR LABOR PRACTICE AND WHICH SEC. 10(B) AND
(C) SUBJECT TO THE JURISDICTION OF THE LABOR BOARD WITH POWER AFTER
HEARINGS TO AWARD "BACK PAY."  IT IS TRUE THAT THERE HAVE BEEN
EXPRESSIONS IN RECENT CASES WHICH INDICATE THAT A SUIT FOR THE
VIOLATION OF A COLLECTIVE BARGAINING CONTRACT MAY BE BROUGHT IN A STATE
OR FEDERAL COURT EVEN THOUGH THE CONDUCT OBJECTED TO WAS ALSO ARGUABLY
AN UNFAIR LABOR PRACTICE WITHIN THE LABOR BOARD'S JURISDICTION.  (FN1)
IT SEEMS CLEAR TO ME THAT THESE EXPRESSIONS OF OPINION WERE NOT
NECESSARY TO THE DECISIONS IN THOSE CASES (FN2) AND THAT NEITHER THESE
PRIOR DECISIONS NOR SEC. 301 OF THE LABOR MANAGEMENT RELATIONS ACT
REQUIRES US TO HOLD THAT EITHER EMPLOYERS OR UNIONS CAN BE MADE TO
DEFEND THEMSELVES AGAINST GOVERNMENTAL REGULATION AND SANCTIONS OF THE
SAME TYPE FOR THE SAME CONDUCT BY BOTH COURTS AND THE LABOR BOARD. 
SUCH DUPLICATION OF GOVERNMENTAL SUPERVISION OVER INDUSTRIAL
RELATIONSHIPS IS BOUND TO CREATE THE SAME UNDESIRABLE CONFUSION,
CONFLICTS, AND BURDENSOME PROCEEDINGS THAT THE NATIONAL LABOR RELATIONS
ACT WAS DESIGNED TO PREVENT, AS WE HAVE INTERPRETED THAT ACT IN PRIOR
CASES LIKE SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236
(1959).    ONE EXAMPLE IS ENOUGH TO SHOW HOW CONGRESS' POLICY OF
CONFINING CONTROVERSIES OVER UNFAIR LABOR PRACTICES TO THE LABOR BOARD
MIGHT WELL BE FRUSTRATED BY PERMITTING UNFAIR LABOR PRACTICE CLAIMANTS
TO CHOOSE WHETHER THEY WILL SEEK RELIEF IN THE COURTS OR BEFORE THE
BOARD.  SECTION 10(B) OF THE ACT PROVIDES THAT "NO COMPLAINT SHALL
ISSUE BASED UPON ANY UNFAIR LABOR PRACTICE OCCURRING MORE THAN SIX
MONTHS PRIOR TO THE FILING OF THE CHARGE WITH THE BOARD  ...  ."  IN
CONTRAST, THE STATUTE OF LIMITATIONS IN MICHIGAN GOVERNING BREACH OF
CONTRACT SUITS LIKE THIS IS SIX YEARS.  (FN3)  THE COURT'S HOLDING THUS
OPENS UP A WAY TO DEFEAT THE CONGRESSIONAL PLAN, ADOPTED OVER VIGOROUS
MINORITY OBJECTION, TO EXPEDITE INDUSTRIAL PEACE BY REQUIRING THAT BOTH
THE COMPLAINING PARTY AND THE BOARD ACT PROMPTLY IN THE INITIATION OF
UNFAIR LABOR PRACTICE PROCEEDINGS.  (FN4)  INSTEAD, BY PERMITTING SUITS
LIKE THIS ONE TO BE FILED, IT IS NOW NOT ONLY POSSIBLE BUT HIGHLY
PROBABLE THAT UNFAIR LABOR PRACTICE DISPUTES WILL HANG ON LIKE
FESTERING SORES THAT GROW WORSE AND WORSE WITH THE YEARS.  (FN5)  OF
COURSE THIS COURT COULD LATER, BY ANOTHER MAJOR STATUTORY SURGICAL
OPERATION, APPLY THE SIX-MONTHS LABOR BOARD STATUTE OF LIMITATIONS TO
ACTIONS FOR BREACH OF COLLECTIVE BARGAINING CONTRACTS UNDER SEC. 301. 
BUT IF SUCH DRASTIC CHANGES ARE TO BE WROUGHT IN THE ACT THAT CONGRESS
PASSED, IT SEEMS IMPORTANT TO ME THAT THIS COURT SHOULD WAIT FOR
CONGRESS TO PERFORM THAT OPERATION. 

THERE IS ANOTHER REASON WHY I CANNOT AGREE WITH THE COURT'S
DISPOSITION OF THIS CASE.  IN THE LAST NOTE ON THE LAST PAGE OF ITS
OPINION, THE COURT SAYS: 

"THE ONLY PART OF THE COLLECTIVE BARGAINING CONTRACT SET OUT IN THIS
RECORD IS THE NO-DISCRIMINATION CLAUSE.  RESPONDENT DOES NOT ARGUE HERE
AND WE NEED NOT CONSIDER THE QUESTION OF FEDERAL LAW OF WHETHER
PETITIONER, UNDER THIS CONTRACT, HAS STANDING TO SUE FOR BREACH OF THE
NO-DISCRIMINATION CLAUSE NOR DO WE DEAL WITH THE STANDING OF OTHER
EMPLOYEES TO SUE UPON OTHER CLAUSES IN OTHER CONTRACTS." 

UNLESS MY READING OF THIS NOTE IS WRONG, THE COURT PURPORTS TO
RESERVE THE QUESTION OF WHETHER AN EMPLOYEE WHO HAS SUFFERED THE KIND
OF DAMAGES HERE ALLEGED ARISING FROM BREACH OF A COLLECTIVE BARGAINING
AGREEMENT CAN FILE A LAWSUIT FOR HIMSELF UNDER SEC. 301.  EARLIER IN
ITS OPINION THE COURT DECIDES THAT A CLAIM FOR INDIVIDUAL WAGES OR BACK
PAY IS WITHIN THE SUBJECT-MATTER JURISDICTION OF COURTS UNDER SEC. 301,
THAT IS, THAT SUCH A CLAIM IS OF THE TYPE THAT THE COURTS ARE EMPOWERED
TO DETERMINE.  THE COURT THEN REJECTS RESPONDENT'S ARGUMENT THAT AN
INDIVIDUAL EMPLOYEE CAN NEVER UNDER ANY CIRCUMSTANCES BRING A SEC. 301
SUIT.  BUT IT SEEMS TO ME THAT THE COURT STUDIOUSLY REFRAINS FROM
SAYING WHEN, FOR WHAT KINDS OF BREACH, OR UNDER WHAT CIRCUMSTANCES AN
INDIVIDUAL EMPLOYEE CAN BRING A SEC. 301 ACTION AND WHEN HE MUST STEP
ASIDE FOR THE UNION TO PROSECUTE HIS CLAIM.  NOR DOES THE COURT DECIDE
WHETHER THE SUIT BROUGHT IN THIS CASE IS ONE OF THE TYPES WHICH AN
INDIVIDUAL CAN BRING.  THIS PUZZLES ME.  THIS COURT USUALLY REFRAINS
FROM DECIDING IMPORTANT QUESTIONS OF FEDERAL LAW SUCH AS ARE INVOLVED
IN THIS CASE WITHOUT FIRST SATISFYING ITSELF THAT THE PARTY RAISING
THOSE QUESTIONS IS ENTITLED (HAS STANDING) TO PROSECUTE THE CASE.  IT
SEEMS TO ME TO BE AT LEAST A SLIGHT DEVIATION FROM THE COURT'S NORMAL
PRACTICE TO DETERMINE THE LAW THAT WOULD BE APPLICABLE IN A PARTICULAR
LAWSUIT WHILE LEAVING OPEN THE QUESTION OF WHETHER SUCH A LAWSUIT HAS
EVEN BEEN BROUGHT IN THE PARTICULAR CASE THE COURT IS DECIDING.  THIS
COURT HAS NOT HERETOFORE THOUGHT ITSELF AUTHORIZED TO RENDER ADVISORY
OPINIONS.  MOREOVER, I AM WHOLLY UNABLE TO AGREE THAT THE RIGHT OF
THESE INDIVIDUALS TO BRING THIS LAWSUIT UNDER SEC. 301 WAS NOT ARGUED
HERE. 

FINALLY, SINCE THE COURT IS DECIDING THAT THIS TYPE OF ACTION CAN BE
BROUGHT TO VINDICATE WORKERS' RIGHTS, I THINK IT SHOULD ALSO DECIDE
CLEARLY AND UNEQUIVOCALLY WHETHER AN EMPLOYEE INJURED BY THE
DISCRIMINATION OF EITHER HIS EMPLOYER OR HIS UNION CAN FILE AND
PROSECUTE HIS OWN LAWSUIT IN HIS OWN WAY.  I CANNOT BELIEVE THAT
CONGRESS INTENDED BY THE NATIONAL LABOR RELATIONS ACT EITHER AS
ORIGINALLY PASSED OR AS AMENDED BY SEC. 301 TO TAKE AWAY RIGHTS TO SUE
WHICH INDIVIDUALS HAVE FREELY EXERCISED IN THIS COUNTRY AT LEAST SINCE
THE CONCEPT OF DUE PROCESS OF LAW BECAME RECOGNIZED AS A GUIDING
PRINCIPLE IN OUR JURISPRUDENCE.  AND SURELY THE LABOR ACT WAS NOT
INTENDED TO RELEGATE WORKERS WITH LAWSUITS TO THE STATUS OF WARDS
EITHER OF COMPANIES OR OF UNIONS. 

FN1  ATKINSON V. SINCLAIR RFG.  CO., 370 U.S. 238, 245, N. 5 (1962);
LOCAL 174, TEAMSTERS UNION V. LUCAS FLOUR CO., 369 U.S. 95, 101, N. 9
(1962); DOWD BOX CO. V. COURTNEY, 368 U.S. 502, 513 (1962). 

FN2  ATKINSON V. SINCLAIR RFG.  CO., SUPRA, NOTE 1, INVOLVED A STRIKE
BY UNION MEMBERS OVER PAY CLAIMS, IN VIOLATION OF AN AGREEMENT TO
ARBITRATE GRIEVANCES.  LOCAL 174, TEAMSTERS UNION V. LUCAS FLOUR CO.,
SUPRA, NOTE 1, CONCERNED A STRIKE BY THE UNION OVER THE DISCHARGE OF AN
EMPLOYEE, IN VIOLATION OF AN AGREEMENT TO ARBITRATE SUCH DISPUTES. 
DOWD BOX CO. V. COURTNEY, SUPRA, NOTE 1, WAS AN ACTION BY UNION
OFFICERS AGAINST A COMPANY FOR FAILURE TO PUT INTO EFFECT PAY INCREASES
AND VACATION BENEFITS PROVIDED IN A COLLECTIVE BARGAINING AGREEMENT. 
IN MY VIEW, NONE OF THE ACTIVITIES IN ANY OF THESE CASES WERE EVEN
ARGUABLY UNFAIR LABOR PRACTICES SUBJECT TO THE LABOR BOARD'S
JURISDICTION, AND THE COURT DID NOT SUGGEST THAT THEY WERE. 

FN3  MICH. COMP. LAWS, 1948, SEC. 609.13. 

FN4  COMPARE H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 40 (1947)
(MAJORITY VIEW), WITH ID., AT 90 (MINORITY VIEW). 

FN5  THE GOVERNMENT SUGGESTS THAT THESE YEARS BE FURTHER EXTENDED BY
REQUIRING THAT, WHEN CASES ARE BROUGHT IN A COURT, QUESTIONS WITHIN THE
LABOR BOARD'S COMPETENCE SHALL BE REFERRED TO THE BOARD.  DIVIDING INTO
TWO WHAT SHOULD BE A SINGLE PROCEEDING WILL RESULT IN A SHUTTLING
OPERATION WHICH PRIOR EXPERIENCE SHOWS MIGHT NOT BE SETTLED FOR A
DECADE.  SEE, E.G., THE PROTRACTED LITIGATION WHICH WAS FINALLY
CONCLUDED IN EL DORADO OIL WORKS V. UNITED STATES, 328 U.S. 12 (1946). 

..END :
















STOCK V. TERRENCE, STATE HOSPITAL DIRECTOR 371 U.S. 206 


NO. 437.  DECIDED DECEMBER 10, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW: 11 N.Y.2D 362, 183
N.E.2D 752. 


STOCK V. TERRENCE, STATE HOSPITAL DIRECTOR. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SPAHOS V. MAYOR OF SAVANNAH BEACH, TYBEE ISLAND, GEORGIA 371 U.S. 206 


NO. 474.  DECIDED DECEMBER 10, 1962.  - 207 F. SUPP. 688, AFFIRMED. 


SPAHOS ET AL. V. MAYOR OF SAVANNAH BEACH, TYBEE ISLAND, GEORGIA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF GEORGIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















LEVER BROTHERS V. UNITED STATES 371 U.S. 207 


NO. 487.  DECIDED DECEMBER 10, 1962.  - APPEAL DISMISSED. 


LEVER BROTHERS CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















GILBERTVILLE TRUCKING CO., INC. V. UNITED STATES 371 U.S. 115 


NO. 40.  ARGUED OCTOBER 15, 1962.  - DECIDED DECEMBER 3, 1962.  - 196 F.
SUPP. 351, AFFIRMED IN PART AND REVERSED IN PART. 


APPELLANTS, TWO INCORPORATED COMMON CARRIERS BY MOTOR VEHICLE AND
THEIR STOCKHOLDERS, APPLIED TO THE INTERSTATE COMMERCE COMMISSION UNDER
SEC. 5(2) OF THE INTERSTATE COMMERCE ACT FOR APPROVAL OF A MERGER OF
THE TWO CORPORATIONS.  ACTING UNDER SEC. 5(7), THE COMMISSION INITIATED
AN INVESTIGATION INTO THE POSSIBILITY OF A VIOLATION OF SEC. 5(4), AND
THE TWO PROCEEDINGS WERE CONSOLIDATED.  AFTER HEARINGS AND FURTHER
PROCEEDINGS, THE COMMISSION FOUND THAT INFORMAL DE FACTO MANAGEMENT AND
CONTROL OF THE TWO CORPORATIONS IN A COMMON INTEREST HAD BEEN
UNLAWFULLY EFFECTUATED IN VIOLATION OF SEC. 5(4); IT DENIED APPROVAL OF
THE MERGER; ORDERED THE VIOLATION TERMINATED; AND ORDERED ONE OF THE
INDIVIDUAL APPELLANTS TO DIVEST HIMSELF OF HIS STOCK IN ONE OF THE
CORPORATIONS.  A SUIT BY APPELLANTS TO ENJOIN AND SET ASIDE THE
COMMISSION'S ORDERS WAS DISMISSED BY THE DISTRICT COURT, ON THE GROUND
THAT THE ORDERS WERE REASONABLE AND SUPPORTED BY SUBSTANTIAL EVIDENCE. 
HELD: THE ORDER DENYING APPROVAL OF THE MERGER IS AFFIRMED; BUT THE
JUDGMENT IS REVERSED IN PART, AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS.  PP. 116-131. 

(A)  ON THE RECORD IN THIS CASE, THE COMMISSION WAS JUSTIFIED IN
CONCLUDING THAT THE TWO APPELLANT COMMON CARRIERS BY MOTOR VEHICLE WERE
IN FACT BEING MANAGED AND CONTROLLED IN A COMMON INTEREST.  PP. 117
122. 

(B)  SECTION 5(4) IS NOT LIMITED TO THE PROSCRIPTION OF HOLDING
COMPANIES AND OTHER CORPORATE DEVICES; IT APPLIES TO THE ACCOMPLISHMENT
OR EFFECTUATION OF CONTROL OR MANAGEMENT IN A COMMON INTEREST OF TWO OR
MORE CARRIERS, "HOWEVER SUCH RESULT IS ATTAINED"; AND THE COMMISSION'S
CONCLUSION THAT THE INFORMAL DE FACTO RELATIONSHIPS FOUND TO EXIST IN
THIS CASE RESULTED IN CONTROL OR MANAGEMENT OF THE TWO CORPORATIONS IN
A COMMON INTEREST WHICH VIOLATED SEC. 5(4) IS SUSTAINED.  PP. 122-126. 

(C)  THE COMMISSION DID NOT ACT ARBITRARILY IN DENYING APPROVAL OF
THE PROPOSED MERGER BECAUSE OF THE VIOLATION OF SEC. 5(4), AND ITS
ORDER DENYING SUCH APPROVAL IS AFFIRMED.  PP. 127-129. 

(D)  SINCE THE RECORD CONTAINS NO EVIDENCE THAT THE PARTIES WERE
HEARD ON THE ISSUE OF DIVESTITURE OR THAT PROPER STANDARDS WERE APPLIED
IN DETERMINING THAT IT WAS THE APPROPRIATE REMEDY FOR THE VIOLATION OF
SEC. 5(4) FOUND TO EXIST IN THIS CASE, THE JUDGMENT OF THE DISTRICT
COURT IS REVERSED IN PART, AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS.  PP. 129-131. 

GILBERTVILLE TRUCKING CO., INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS DISAPPROVAL BY THE INTERSTATE COMMERCE COMMISSION
OF A PROPOSED MERGER ON THE GROUND THAT "CONTROL AND MANAGEMENT IN A
COMMON INTEREST" OVER THE TWO APPLICANT-CARRIERS HAD BEEN UNLAWFULLY
EFFECTUATED PRIOR TO THE MERGER APPLICATION IN VIOLATION OF SEC. 5(4)
OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 54 STAT. 907, 49 U.S.C.
SEC. 5(4).  (FN1) 

THE APPLICANT-CARRIERS ARE L. NELSON & SONS TRANSPORTATION CO. AND
GILBERTVILLE TRUCKING CO., BOTH OF WHOM ARE CERTIFICATED BY THE
COMMISSION AS COMMON CARRIER MOTOR CARRIERS.  THE PRINCIPAL
STOCKHOLDERS OF NELSON CO. ARE TWO HALF BROTHERS, CHARLES CHILBERG AND
CLIFFORD NELSON; GILBERTVILLE CO. IS WHOLLY OWNED BY A THIRD BROTHER,
KENNETH NELSON. 

THE MERGER APPLICATION WAS FILED OCTOBER 6, 1955, BY THE TWO CARRIERS
AND THEIR STOCKHOLDERS PURSUANT TO SEC. 5(2) OF THE ACT.  TWO AND A
HALF MONTHS LATER THE COMMISSION INITIATED AN INVESTIGATION INTO THE
POSSIBILITY OF A SEC. 5(4) VIOLATION PURSUANT TO AUTHORITY GRANTED BY
SEC. 5(7) OF THE ACT.  THE TWO PROCEEDINGS WERE CONSOLIDATED FOR
HEARING.  THE TRIAL EXAMINER DETERMINED THAT SEC. 5(4) WAS BEING
VIOLATED, BUT RECOMMENDED THAT THE MERGER BE APPROVED ON THE GROUND
THAT THE VIOLATION WAS NEITHER INTENTIONAL NOR FLAGRANT.  DIVISION 4
AFFIRMED THE FINDING OF A VIOLATION, BUT DISAPPROVED THE MERGER, AND
ORDERED THE VIOLATION TERMINATED.  75 M.C.C. 45.  ON RECONSIDERATION,
THE FULL COMMISSION AFFIRMED THE DIVISION, BUT FURTHER ORDERED THAT
KENNETH NELSON DIVEST HIMSELF OF GILBERTVILLE CO. 80 M.C.C. 257.  A
SUIT BEFORE A THREE-JUDGE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF MASSACHUSETTS TO ENJOIN AND SET ASIDE THE COMMISSION'S ORDERS WAS
DISMISSED ON THE GROUND THAT THE ORDERS WERE REASONABLE AND SUPPORTED
BY SUBSTANTIAL EVIDENCE.  196 F. SUPP. 351.  AN APPEAL WAS TAKEN TO
THIS COURT CONTESTING (1) THE FINDING OF A SEC. 5(4) VIOLATION, (2) THE
DENIAL OF THE MERGER, AND (3) THE ORDER OF DIVESTITURE.  WE NOTED
PROBABLE JURISDICTION.  368 U.S. 983. 

THE FACTUAL ISSUE IN THIS CASE TURNS UPON THE DEVELOPMENT OF FAMILY,
MANAGEMENT, AND OPERATIONAL RELATIONSHIPS BETWEEN NELSON, GILBERTVILLE,
AND A THIRD CARRIER, R.A. BYRNES, INC., WHICH IS OWNED BY THE PRINCIPAL
STOCKHOLDERS OF NELSON. 

THE NELSON TRANSPORTATION BUSINESS WAS FIRST ORGANIZED IN 1930 AS A
PARTNERSHIP.  IN 1947 IT WAS INCORPORATED AS L. NELSON & SONS
TRANSPORTATION CO. AND STOCK ISSUED TO MRS. NELSON (FORMERLY MRS.
CHILBERG) AND FOUR OF HER SEVEN CHILDREN (INCLUDING KENNETH NELSON,
CLIFFORD NELSON, AND CHARLES CHILBERG).  UPON MRS. NELSON'S DEATH IN
1950, EQUAL NUMBERS OF SHARES OF HER STOCK IN NELSON CO. WERE DEVISED
TO HER SEVEN CHILDREN.  IN 1951, KENNETH NELSON SOLD HIS ORIGINAL
SHARES RECEIVED IN 1947 TO CHARLES CHILBERG AND CLIFFORD NELSON, AND
AGREED TO SELL TO THEM THE REMAINDER TO WHICH HE WAS ENTITLED ON
DISTRIBUTION OF THE ESTATE.  THE DISTRIBUTION AND TRANSFER WERE MADE ON
JANUARY 23, 1953.  SINCE THAT DATE, CHARLES AND CLIFFORD HAVE BEEN THE
PRINCIPAL STOCKHOLDERS IN NELSON CO. CHARLES IS NOW PRESIDENT AND
TREASURER; CLIFFORD IS SECRETARY AND ASSISTANT TREASURER. 

UPON THE SALE OF HIS STOCK IN 1951, KENNETH NELSON RESIGNED AS AN
OFFICER AND DIRECTOR OF NELSON CO.  HOWEVER, HE KEPT HIS OFFICE AT
NELSON CO. HEADQUARTERS IN ELLINGTON, CONNECTICUT, AND WAS RETAINED BY
THE COMPANY AS A "FREE-LANCE TARIFF CONSULTANT."  IN SUCH CAPACITY HE
WAS PAID APPROXIMATELY $15,000 IN 1952 AND $13,000 IN 1953.  WHILE HE
CLAIMS TO HAVE BEEN AN INDEPENDENT CONTRACTOR, HIS ONLY CLIENT WAS
NELSON CO. IN THE THIRD WEEK OF JANUARY 1953, KENNETH NELSON WROTE TO
NELSON CO.'S ACCOUNTANT, MR. SANOL SOLOMON, REQUESTING ADVICE ON THE
ACQUISITION OF GILBERTVILLE TRUCKING CO. SOON THEREAFTER KENNETH BEGAN
NEGOTIATIONS WITH GILBERTVILLE'S OWNER, AND ON MARCH 3, 1953, TOOK OVER
CONTROL.  SINCE JULY 1953, ALL THE STOCK IN GILBERTVILLE HAS BEEN
CONTROLLED BY KENNETH. 

IN APRIL OF 1954 CHARLES CHILBERG AND CLIFFORD NELSON OBTAINED
TEMPORARY AUTHORITY FROM THE COMMISSION TO TAKE OVER THE OPERATIONS OF
R.A. BYRNES, INC.; THEIR ACQUISITION OF BYRNES STOCK WAS APPROVED IN
AUGUST 1956. 

THE ROUTES OF THESE THREE CARRIERS FORM A COHESIVE NETWORK ALONG THE
EASTERN SEABOARD FROM MASSACHUSETTS TO THE DISTRICT OF COLUMBIA. 
GILBERTVILLE IS PRESENTLY CERTIFICATED BY THE COMMISSION AS A COMMON
CARRIER FOR GENERAL COMMODITIES OVER REGULAR AND IRREGULAR ROUTES
BETWEEN POINTS IN MASSACHUSETTS, CONNECTICUT, RHODE ISLAND, AND NEW
YORK CITY.  BYRNES IS CERTIFICATED AS A COMMON CARRIER FOR GENERAL
COMMODITIES OVER IRREGULAR ROUTES BETWEEN NEW YORK CITY, PHILADELPHIA,
THE DISTRICT OF COLUMBIA, AND POINTS ADJACENT TO THESE CITIES.  IT IS
ALSO CERTIFICATED AS A CONTRACT CARRIER OF CANNED GOODS IN
MASSACHUSETTS, CONNECTICUT, AND RHODE ISLAND.  NELSON IS CERTIFICATED
AS A COMMON CARRIER FOR TEXTILE COMMODITIES OVER IRREGULAR ROUTES
BETWEEN POINTS IN MASSACHUSETTS, NEW HAMPSHIRE, RHODE ISLAND,
CONNECTICUT, AND AREAS ADJACENT TO NEW YORK AND PHILADELPHIA.  IT IS
ALSO CERTIFICATED FOR GENERAL COMMODITIES IN INTRASTATE TRAFFIC IN
CONNECTICUT AND MASSACHUSETTS.  THUS, THE GILBERTVILLE AND BYRNES
GENERAL-COMMODITY ROUTES COMPLEMENT EACH OTHER PERFECTLY AND OVERLAP TO
A CONSIDERABLE DEGREE THE TEXTILES ROUTES OF NELSON. 

SOON AFTER HIS ACQUISITION OF GILBERTVILLE, KENNETH NELSON INSTITUTED
A NUMBER OF PERMANENT CHANGES IN THE CARRIER'S OPERATIONS TENDING TO
INTEGRATE THE TERMINAL FACILITIES OF NELSON AND GILBERTVILLE; HE
RECEIVED WHERE NECESSARY THE COOPERATION OF NELSON CO. KENNETH OBTAINED
PERMISSION FROM THE COMMISSION TO MOVE THE BUSINESS RECORDS AND HEAD
OFFICES OF THE ACQUIRED COMPANY FROM GILBERTVILLE, MASSACHUSETTS, THE
PLACE OF INCORPORATION, TO ELLINGTON, CONNECTICUT, AND TOOK OVER THE
SECOND FLOOR OF THE NELSON CO. OFFICE BUILDING.  WHERE POSSIBLE
GILVERTVILLE USED THE NELSON TERMINALS, SUBLETTING FROM NELSON IN
ELLINGTON, CONNECTICUT; NEW YORK CITY; NEWTON, MASSACHUSETTS; AND
WOONSOCKET, RHODE ISLAND.  ITS ONLY OTHER TERMINAL WAS AT GILBERTVILLE,
MASSACHUSETTS.  IN SEVEN CITIES, GILBERTVILLE AND NELSON WERE LISTED
UNDER THE SAME TELEPHONE NUMBER, AND THEY SHARED INTERTERMINAL
TELEPHONE LINES.  ALMOST IDENTICAL CHANGES TOOK PLACE IN 1954 UPON
COMMISSION APPROVAL OF CHARLES CHILBERG AND CLIFFORD NELSON'S
ACQUISITION OF BYRNES.  BYRNES' OFFICES WERE MOVED FROM MULLICA HILL,
NEW JERSEY, TO THE NELSON CO. HEADQUARTERS IN ELLINGTON, CONNECTICUT;
BYRNES SHARED THE NELSON TERMINAL IN NEW YORK; IT LISTED UNDER THE
NELSON TELEPHONE NUMBER; IT SHARED INTERTERMINAL TELEPHONE LINES. 
SINCE THE BYRNES CHANGES WERE THE DIRECT RESULT OF CONTROL AND
MANAGEMENT IN A COMMON INTEREST OF BYRNES AND NELSON IN THE HANDS OF
CHARLES AND CLIFFORD, IT MIGHT BE INFERRED THAT THE GILBERTVILLE
CHANGES WERE SIMILARLY INDICATIVE OF CONTROL AND MANAGEMENT IN A COMMON
INTEREST OF NELSON AND GILBERTVILLE. 

FURTHER SUBSTANTIATION OF THIS TERMINAL INTEGRATION IS PROVIDED BY A
FOURTH CORPORATION, BERGSON COMPANY, A REAL ESTATE CORPORATION FORMED
TO RECEIVE THE RESIDUAL PROPERTIES OF MRS. LINNEA NELSON'S ESTATE. 
BERGSON OWNS THE TERMINALS LEASED TO NELSON CO. AT PHILADELPHIA,
ELLINGTON, WOONSOCKET, AND NEWTON, THREE OF WHICH ARE SUBLET TO
GILBERTVILLE.  SINCE BERGSON IS OWNED IN EQUAL SHARES BY ALL SEVEN
CHILDREN, ALL OF WHOM ARE DIRECTORS, IT PROVIDES A DIRECT CORPORATE TIE
IN BETWEEN KENNETH NELSON AND HIS BROTHERS. 

WHILE IT IS NOT UNUSUAL FOR INDEPENDENT CARRIERS TO SHARE TERMINAL
FACILITIES, AS INDEED GILBERTVILLE AND NELSON DO WITH UNRELATED
CARRIERS IN NEW YORK AND WOONSOCKET, THE REPETITION OF SUCH PRACTICES
THROUGHOUT THEIR RESPECTIVE SYSTEMS MAKES THEIR ALLEGED INDEPENDENCE
SUSPECT.  WHEN THESE PRACTICES ARE THEN SUPPLEMENTED BY FURTHER DAY-TO
DAY PRACTICES INTEGRATING BUSINESS, EQUIPMENT, AND MANAGERIAL POLICIES,
THE COMMISSION IS JUSTIFIED IN CONCLUDING THE CARRIERS ARE IN FACT
BEING MANAGED AND CONTROLLED IN A COMMON INTEREST.  SUCH ADDITIONAL
PRACTICES ARE READILY FOUND IN THE RECORD OF THIS CASE. 

MOST SIGNIFICANT IS THE EQUIPMENT INTERDEPENDENCE BETWEEN NELSON AND
GILBERTVILLE.  WHEN ACQUIRED FOR $35,000 IN 1953, GILBERTVILLE HAD A
DEFICIT ABOUT EQUAL TO THE PURCHASE PRICE, ASSETS OF ONLY $69,000, AND
A 1953 OPERATING REVENUE OF ONLY $75,000.  BY 1956 KENNETH NELSON HAD
INCREASED THE OPERATING REVENUE TO A SEVEN-MONTH FIGURE OF $444,777. 
THIS IMPRESSIVE GROWTH WAS MADE IN THE FACE OF A CONTINUAL SHORT-TERM
CREDIT SQUEEZE AND LACK OF WORKING CAPITAL AND EQUIPMENT.  NELSON CO.,
HOWEVER, WAS OPERATING IN A DECLINING TEXTILE MARKET IN THE NORTHEAST
WITH HIGHLY PERIODIC DEMANDS FOR CARRIAGE.  AS A RESULT, NELSON HAD A
FLUCTUATING OVERCAPACITY IN EQUIPMENT WHICH WAS LEASED ONLY TO
GILBERTVILLE AND OCCASIONALLY BYRNES.  KENNETH NELSON ESTIMATED THAT
GILBERTVILLE HAD FROM ONE TO SIX TRACTOR-TRAILER UNITS ON TRIP-LEASE
FROM NELSON CO. EVERY DAY AND UP TO FIVE OTHER PIECES OF EQUIPMENT ON
PERMANENT LEASE, AN AMOUNT EQUAL AT TIMES TO OVER ONE-HALF OF
GILBERTVILLE'S OWN CARRIAGE CAPACITY.  ADDED TO THIS EQUIPMENT
INTERDEPENDENCE BETWEEN NELSON AND GILBERTVILLE WERE CERTAIN
INTERLINING PRACTICES.  (FN2)  GILBERTVILLE INTERLINED BETWEEN 25% AND
30% OF ITS BUSINESS.  OVER ONE-THIRD OF THIS INTERLINE BUSINESS WAS
WITH NELSON CO. AND BYRNES, THE MAJORITY BEING IN TRUCKLOAD
QUANTITIES.  OWING TO ITS EQUIPMENT SHORTAGE, GILBERTVILLE INTERLINED
WITH NELSON PURSUANT TO A PRACTICE WHEREBY A TRIP-LEASE WAS MADE OUT AT
THE START OF A RUN TO TAKE EFFECT AT THE POINT OF TRANSFER TO
GILBERTVILLE ROUTES SO THAT THE NELSON TRACTOR-TRAILER OPERATED
THROUGHOUT THE TRIP; MOREOVER, THE SAME DRIVER MIGHT STAY WITH THE
UNIT, CHANGING EMPLOYERS AT THE POINT OF TRANSFER.  (FN3) 

FINALLY, THE RECORD INCLUDES EVIDENCE THAT ON FOUR OCCASIONS
COMMISSION EMPLOYEES DISCOVERED ON HIGHWAY SPOT CHECKS THAT ONE OF THE
CARRIERS CARRIED SMALL SHIPMENTS BELONGING TO THE OTHER; THAT NELSON
DID ABOUT ONE-QUARTER OF THE GILBERTVILLE REPAIRS; AND THAT CHARLES
CHILBERG AND KENNETH NELSON EACH EXERCISED MANAGERIAL CONTROL OVER
EMPLOYEES OF BOTH NELSON AND GILBERTVILLE.  (FN4) 

THIS EVIDENCE IS SUFFICIENT TO SHOW THAT NELSON AND GILBERTVILLE WERE
IN FACT BEING CONTROLLED AND MANAGED IN A COMMON INTEREST TO A
CONSIDERABLE DEGREE.  IF SEC. 5(4) WAS INTENDED BY CONGRESS TO REACH
SUCH DE FACTO RELATIONSHIPS, THE COMMISSION WAS WARRANTED IN CONCLUDING
THE SECTION WAS BEING VIOLATED. 

                                           I. 

TO PLACE OWNERSHIP, MANAGEMENT, AND OPERATIONAL CONTROL OVER COMMON
CARRIERS WITHIN THE REGULATORY JURISDICTION OF THE COMMISSION.  SIMPLY,
SEC. 5(2)(A) GIVES THE COMMISSION POWER TO AUTHORIZE AND APPROVE THE
JOINT OPERATION OF PROPERTIES BELONGING TO TWO OR MORE COMMON CARRIERS
OR THE MERGER OF SUCH CARRIERS; SEC. 5(4) THEN DECLARES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, EXCEPT AS PROVIDED IN PARAGRAPH
(2), TO ENTER INTO ANY TRANSACTION WITHIN THE SCOPE OF SUBPARAGRAPH (A)
THEREOF, OR TO ACCOMPLISH OR EFFECTUATE, OR TO PARTICIPATE IN
ACCOMPLISHING OR EFFECTUATING, THE CONTROL OR MANAGEMENT IN A COMMON
INTEREST OF ANY TWO OR MORE CARRIERS, HOWEVER SUCH RESULT IS ATTAINED,
WHETHER DIRECTLY OR INDIRECTLY, BY USE OF COMMON DIRECTORS, OFFICERS,
OR STOCKHOLDERS, A HOLDING OR INVESTMENT COMPANY OR COMPANIES, A VOTING
TRUST OR TRUSTS, OR IN ANY OTHER MANNER WHATSOEVER  ...  . AS USED IN
THIS PARAGRAPH  ...  THE WORDS 'CONTROL OR MANAGEMENT' SHALL BE
CONSTRUED TO INCLUDE THE POWER TO EXERCISE CONTROL OR MANAGEMENT." 

THE COMPLEMENTARY CHARACTER OF THESE TWO SECTIONS WAS DISCUSSED AT
SOME LENGTH IN UNITED STATES V. MARSHALL TRANSPORT CO., 322 U.S. 31. 
AS ORIGINALL ENACTED IN THE EMERGENCY RAILROAD TRANSPORTATION ACT OF
1933, 48 STAT. 217, SEC. 5(4) WAS APPLICABLE ONLY TO RAILROADS; IT WAS
EXTENDED TO COVER MOTOR CARRIERS IN THE TRANSPORTATION ACT OF 1940, 54
STAT. 905, 907-908.  AS THE APPELLANTS CORRECTLY STATE, CONGRESS, IN
PASSING SEC. 5(4) AND THE SUPPLEMENTARY SEC. 5(5) AND (6), (FN5) WAS
PRIMARILY CONCERNED WITH REACHING THE ELABORATE CORPORATE DEVICES USED
TO CENTRALIZE CONTROL OVER THE RAILROADS "WITHOUT COMMISSION
SUPERVISION AND IN DEFIANCE OF THE WILL OF CONGRESS."  (FN6) ALTHOUGH
CONGRESS HAD INTENDED THE TRANSPORTATION ACT OF 1920 TO PROVIDE
COMPLETE SUPERVISION, THE ACT PROVED INADEQUATE TO REACH THE HOLDING
COMPANY SYSTEM.  (FN7)  ON THE BASIS OF THIS HISTORY, THE APPELLANTS
ARGUE THAT SEC. 5(4) IS LIMITED TO PROSCRIPTION OF CORPORATE DEVICES
AND WILL NOT REACH THE INFORMAL RELATIONSHIPS SHOWN ON THIS RECORD. 

SUCH A NARROW INTERPRETATION OF THE STATUTE, HOWEVER, CONFUSES THE
PARTICULAR MANIFESTATION OF THE PROBLEM WITH WHICH CONGRESS WAS FACED
IN 1933 WITH THE ULTIMATE CONGRESSIONAL INTENTION OF EFFECTUATING THE
COMMISSION'S JURISDICTION UNDER SEC. 5(2).  ON ITS FACE, SEC. 5(4)
PROSCRIBES NOT JUST CORPORATE AND LEGAL DEVICES, BUT CONTROL
EFFECTUATED "IN ANY OTHER MANNER WHATSOEVER."  ANY DOUBT AS TO THE
SCOPE OF THIS PHRASE WAS REMOVED WHEN CONGRESS ADDED THE DEFINITION OF
"CONTROL" TO SEC. 1(3)(B) OF THE ACT IN THE TRANSPORTATION ACT OF 1940,
54 STAT. 899-900.  THIS SECTION STATES THAT FOR PURPOSES OF SEC. 5 AND
OTHER SECTIONS, "CONTROL" "SHALL BE CONSTRUED TO INCLUDE ACTUAL AS WELL
AS LEGAL CONTROL, WHETHER MAINTAINED OR EXERCISED THROUGH OR BY REASON
OF THE METHOD OF OR CIRCUMSTANCES SURROUNDING ORGANIZATION OR OPERATION
...  ."  WE HAVE CONSTRUED THIS LANGUAGE TO ENCOMPASS EVERY TYPE OF
CONTROL IN FACT AND HAVE LEFT TO THE AGENCY CHARGED WITH ENFORCEMENT
THE DETERMINATION FROM THE FACTS WHETHER "CONTROL" EXISTS, SUBJECT TO
NORMAL STANDARDS OF REVIEW.  MARSHALL TRANSPORT CO., SUPRA, P. 38;
ALLEGHANY CORP. V. BRESWICK & CO., 353 U.S. 151, 163-165; ROCHESTER
TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 145-146.  IN THIS
MANNER, THE COMMISSION MAY ADAPT SEC. 5(4) TO THE ACTUALITIES AND
CURRENT PRACTICES OF THE INDUSTRY INVOLVED AND APPLY IT TO THE EXTENT
IT FEELS NECESSARY TO PROTECT ITS JURISDICTION UNDER SEC. 5(2) WITHOUT
HAVING TO RETURN TO CONGRESS FOR ADDITIONAL AUTHORITY EVERY TIME
INDUSTRY PRACTICES CHANGE. 

A CURSORY GLANCE AT COMMISSION EXPERIENCE SHOWS THE TYPE OF INFORMAL
PRACTICES IN THE MOTOR CARRIER INDUSTRY WHICH THE COMMISSION HAS
DECIDED ARE COVERED BY SEC. 5(4) AND MUST BE APPROVED UNDER SEC. 5(2). 
TYPICAL OF THESE PRACTICES HAVE BEEN ATTEMPTS BY ACTIVE CARRIERS TO
EFFECTIVELY LEASE THE ROUTES OF A DORMANT CARRIER BY INTERLINING AND
TRIP-LEASING THEIR EQUIPMENT CONTINUOUSLY OVER THE DORMANT CARRIER'S
ROUTES, E.G., NIGRO FREIGHT LINES, INC. - PURCHASE - COADY TRUCKING
CO., 90 M.C.C. 113; ATTEMPTS BY CARRIERS TO ACQUIRE OTHER CARRIERS BY
SUPPLYING FUNDS TO ALLEGEDLY INDEPENDENT THIRD-PARTY PURCHASERS, E.G.,
BLACK - INVESTIGATION OF CONTROL - COLONY MOTOR TRANSPORTATION, 75
M.C.C. 275; COLDWAY FOOD EXPRESS, INC. - CONTROL AND MERGER - FOODWAY
EXPRESS, INC., 87 M.C.C. 123; ATTEMPTS BY INACTIVE OWNERS TO ALLOW AN
EMPLOYEE OF ANOTHER CARRIER TO MANAGE AND MERGE OPERATIONS OF THE TWO
CARRIERS, E.G., GATE CITY TRANSPORT CO. - CONTROL - SQUARE DEAL CARTAGE
CO., 87 M.C.C. 591.  IN THE PRESENT CASE, THE TRIAL EXAMINER HELD THAT
THE FACTS IN THIS RECORD "REQUIRE A FINDING" OF CONTROL AND MANAGEMENT
IN A COMMON INTEREST IN VIOLATION OF SEC. 5(4).   DIVISION 4, AFTER A
SIMILAR REVIEW OF THE FACTS, CONCURRED.  ON RECONSIDERATION, THE FULL
COMMISSION AFFIRMED THE FINDING AND CONCLUSION OF THE EXAMINER AND
DIVISION 4.  JUDICIAL REVIEW OF THIS CONCLUSION IS LIMITED TO
CONSIDERATION OF WHETHER IT HAS A RATIONAL BASIS AND IS SUPPORTED BY
SUBSTANTIAL EVIDENCE.  UNITED STATES V. PIERCE AUTO LINES, INC., 327
U.S. 515; MISSISSIPPI-BARGE LINE CO. V. UNITED STATES, 292 U.S. 282,
286-287.  (FN8)  AFTER OUR REVIEW OF THE FACTS AND STATUTORY SECTIONS
INVOLVED, WE DETECT NO REASON TO DISTURB THIS FINDING.  (FN9)

                              II. 

HOWEVER, EVEN ADMITTING A SEC. 5(4) VIOLATION, THE APPELLANTS PROTEST
AS ARBITRARY THE DENIAL OF THEIR APPLICATION FOR APPROVAL OF THE
PROPOSED MERGER OF NELSON AND GILBERTVILLE.  SECTION 5(2) PROVIDES THAT
A TRANSACTION WITHIN ITS SCOPE IS TO BE APPROVED IF FOUND TO BE
"CONSISTENT WITH THE PUBLIC INTEREST."  THE STATUTE ENTRUSTS THE
COMMISSION WITH THE DUTY TO DECIDE WHAT CONSIDERATIONS OTHER THAN THOSE
SPECIFICALLY MENTIONED IN SEC. 5(2)(C) SHALL BE GIVEN WEIGHT.  CF.
MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 86-88; SCHWABACHER
V. UNITED STATES, 334 U.S. 182, 193.  AS IN THE CASE OF AN ORIGINAL
APPLICATION FOR A CERTIFICATE, THE COMMISSION HAS CHOSEN TO GIVE WEIGHT
TO AN APPLICANT'S FITNESS.  E.G., TRANSAMERICAN FREIGHT LINES, INC. -
CONTROL AND MERGER - THE CUMBERLAND MOTOR EXPRESS CORP., 75 M.C.C. 423,
428; CF. INTERSTATE COMMERCE ACT, SEC. 207, 49 STAT. 551, 49 U.S.C.
SEC. 307.  INTEGRAL TO A DETERMINATION OF FITNESS IS THE APPLICANT'S
WILLINGNESS AND ABILITY TO FULFILL ITS OBLIGATIONS TO THE COMMISSION,
CONSIDERATIONS WHICH MAY BE DEMONSTRATED IN PART BY PAST OR CONTINUING
VIOLATIONS OF COMMISSION REGULATIONS.  E.G., POWELL - PURCHASE - RAMPY,
57 M.C.C. 597.  THIS HAS NOT BEEN CONTESTED BY THE APPELLANTS, AND ITS
RELEVANCE TO A FINDING OF CONSISTENCY WITH THE PUBLIC INTEREST IS SELF
EVIDENT.  NOR DO THEY DISPUTE THE PRINCIPLE RECENTLY STATED BY THE
COMMISSION IN CENTRAL OF GEORGIA R. CO. CONTROL, 307 I.C.C. 39, 43,
THAT A SEC. 5(4) VIOLATION MAY ALONE BAR APPROVAL OF A MERGER UNLESS,
"UPON CONSIDERATION OF ALL THE FACTS, IT CLEARLY APPEARS THAT THE
PUBLIC INTEREST WILL BE SERVED BEST BY SUCH APPROVAL."  RATHER, THEY
CONTEND THAT IN THIS CASE THE COMMISSION REFUSED TO CONSIDER ALL THE
FACTS PRESENTED AND, IN EFFECT, MADE A SEC. 5(4) VIOLATION AN AUTOMATIC
BAR TO APPROVAL OF A SUBSEQUENT MERGER.  TO SUPPORT THIS ALLEGATION,
THE APPELLANTS POINT TO THE UNDISPUTED FINDINGS OF THE TRIAL EXAMINER
THAT THE VIOLATION IN THIS CASE WAS NEITHER WILLFUL, FLAGRANT, NOR THE
RESULT OF PERSISTENT DISREGARD FOR REGULATION.  THEY COMPARE THESE
FINDINGS WITH PAST COMMISSION HOLDINGS THAT VIOLATIONS WILL BE
OVERLOOKED IN THE ABSENCE OF WILLFULNESS, E.G., GATE CITY TRANSPORT CO.
- CONTROL - SQUARE DEAL CARTAGE CO., SUPRA, AND CONCLUDE THAT THE RULE
APPLIED IN THE PRESENT CASE MUST HAVE BEEN AUTOMATIC. 

HOWEVER, EVEN AN AUTOMATIC RULE IS NOT NECESSARILY ARBITRARY.  AS
ALREADY NOTED, SEC. 5(4) IS INTEGRAL TO THE SUCCESS OF THE REGULATORY
SCHEME.  TO APPROVE A MERGER IN THE FACE OF A SEC. 5(4) VIOLATION MAY
ENCOURAGE OTHERS WHOSE MERGER MAY OR MAY NOT BE CONSISTENT WITH THE
PUBLIC INTEREST TO EITHER PRESENT THE COMMISSION WITH A FAIT ACCOMPLI
OR AVOID ITS JURISDICTION ALTOGETHER.  AS THE COMMISSION POINTED OUT IN
CENTRAL OF GEORGIA, IF SUCH PRACTICES WERE ENCOURAGED, "OUR
ADMINISTRATION OF THE STATUTE IN THE PUBLIC INTEREST WOULD BE SERIOUSLY
HINDERED, IF NOT DEFEATED."  307 I.C.C., AT 44.  THIS ADDITIONAL
INTEREST IN THE PROPER ADMINISTRATION OF THE STATUTE PLACES UPON THE
APPLICANT A HEAVIER BURDEN THAN MAY BE THE CASE FOR OTHER REGULATORY
VIOLATIONS, AND MERE LACK OF WILLFULNESS OR ALLEGED INNOCENCE NEED NOT
SUFFICE. 

IN FACT, THE COMMISSION'S RULE IS NOT AUTOMATIC AND WILL GIVE WAY TO
A CLEAR SHOWING OF PUBLIC INTEREST IN APPROVAL.  HOWEVER, THE
APPELLANTS CANNOT ATTACK THE COMMISSION'S ORDER UNDER EVEN THIS LESS
STRINGENT RULE SINCE THEY MADE NO CLEAR SHOWING OF A PUBLIC INTEREST IN
APPROVAL SUCH AS A PUBLIC NEED FOR THE MERGED SERVICE OR FOR LARGER
CONSOLIDATED CARRIERS.  THE ORDER DENYING THE MERGER IS THEREFORE
AFFIRMED. 

                          III. 

THE COMMISSION'S FINAL ORDER REQUIRES KENNETH NELSON TO DIVEST
HIMSELF OF HIS STOCK IN GILBERTVILLE CO. IN ORDER TO TERMINATE THE SEC.
5(4) VIOLATION.  NO OTHER REFERENCE TO DIVESTITURE CAN BE FOUND.  IN
VIEW OF HIS RECOMMENDATION THAT THE MERGER BE APPROVED, THE TRIAL
EXAMINER MADE NO FINDINGS OR RECOMMENDATIONS ON A REMEDY FOR THE
VIOLATION.  DIVISION 4, UPON DENIAL OF THE MERGER, SIMPLY ORDERED THAT
EACH OF THE APPLICANTS IS HEREBY "REQUIRED TO TERMINATE THE
VIOLATION."  ON RECONSIDERATION, THE FULL COMMISSION REINSTATED
DIVISION 4'S ORDER, BUT ADDED, WITHOUT EXPLANATION IN ITS REPORT, THE
ORDER TO DIVEST.  THE DISTRICT COURT ATTEMPTED TO PROVIDE THE RATIONALE
BY SUGGESTING THAT DIVESTITURE WAS SO PERFECTLY SUITED TO THE NATURE OF
THE VIOLATION, AN UNLAWFUL ACQUISITION, THAT NO EXPLANATION WAS
NECESSARY. 

THERE IS LITTLE QUESTION THAT DIVESTITURE IS WITHIN THE SCOPE OF THE
COMMISSION'S POWER SINCE, WITH RESPECT TO A SEC. 5(4) VIOLATION, IT MAY
ORDER ANY PARTY TO "TAKE SUCH ACTION AS MAY BE NECESSARY, IN THE
OPINION OF THE COMMISSION, TO PREVENT CONTINUANCE OF SUCH VIOLATION." 
SEC.  5(7). WHERE THE UNLAWFUL CONTROL IS THE RESULT OF AN ACQUISITION,
DIVESTITURE MAY BE THE ONLY EFFECTIVE REMEDY.  HOWEVER, AS SEC. 5(7)
ITSELF IMPLIES, THE COMMISSION'S POWER IS CORRECTIVE, NOT PUNITIVE. 
THE JUSTIFICATION FOR THE REMEDY IS THE REMOVAL OF THE VIOLATION. 

THE USE OF EQUITABLE POWERS TO EXPUNGE A STATUTORY VIOLATION HAS BEEN
FULLY DEVELOPED IN THE CONTEXT OF THE ANTITRUST LAWS AND IS, IN MANY
RESPECTS, APPLICABLE TO SEC. 5(7).  THE "MOST DRASTIC, BUT MOST
EFFECTIVE" OF THESE REMEDIES IS DIVESTITURE.  AND "IF THE COURT
CONCLUDES THAT OTHER MEASURES WILL NOT BE EFFECTIVE TO REDRESS A
VIOLATION, AND THAT COMPLETE DIVESTITURE IS A NECESSARY ELEMENT OF
EFFECTIVE RELIEF, THE GOVERNMENT CANNOT BE DENIED THE LATTER REMEDY
BECAUSE ECONOMIC HARDSHIP, HOWEVER SEVERE, MAY RESULT."  UNITED STATES
V. E.I. DU PONT DE NEMOURS & CO., 366 U.S. 316, 326-327.  OUR DUTY IS
TO GIVE "COMPLETE AND EFFICACIOUS EFFECT TO THE PROHIBITIONS OF THE
STATE" WITH AS LITTLE INJURY AS POSSIBLE TO THE INTERESTS OF PRIVATE
PARTIES OR THE GENERAL PUBLIC.  UNITED STATES V. AMERICAN TOBACCO CO.,
221 U.S. 106, 185.  AS THESE CASES INDICATE, THE CHOICE OF REMEDY IS AS
IMPORTANT A DECISION AS THE INITIAL CONSTRUCTION OF THE STATUTE AND
FINDING OF A VIOLATION.  THE COURT OR AGENCY CHARGED WITH THIS CHOICE
HAS A HEAVY RESPONSIBILITY TO TAILOR THE REMEDY TO THE PARTICULAR FACTS
OF EACH CASE SO AS TO BEST EFFECTUATE THE REMEDIAL OBJECTIVES JUST
DESCRIBED.  CF. HECHT CO. V. BOWLES, 321 U.S. 321, 329-331. 

AS SEC. 5(7) EXPRESSLY STATES, THE COMMISSION IS CHARGED WITH
CHOOSING THE PROPER REMEDY IN THIS CASE.  JUDICIAL REVIEW IS
ACCORDINGLY LIMITED.  "IT EXTENDS NO FURTHER THAN TO ASCERTAIN WHETHER
THE COMMISSION MADE AN ALLOWABLE JUDGMENT IN ITS CHOICE OF THE
REMEDY."  JACOB SIEGEL CO. V. FEDERAL TRADE COMM'N, 327 U.S. 608, 612. 
BUT PREREQUISITE TO SUCH REVIEW IS EVIDENCE THAT A JUDGMENT WAS IN FACT
MADE, THAT THE PARTIES WERE HEARD ON THE ISSUE, THAT THE PROPER
STANDARDS WERE APPLIED.  WE FIND NO SUCH EVIDENCE IN THIS RECORD. 
RATHER WE ARE FACED WITH EVIDENCE THAT THE STATUTORY VIOLATION OCCURRED
NOT JUST FROM KENNETH NELSON'S ACT OF ACQUIRING GILBERTVILLE, BUT FROM
THE ACQUISITION PLUS SUBSEQUENT PRACTICES INTEGRATING THE MANAGEMENT
AND OPERATIONS OF NELSON AND GILBERTVILLE, PRACTICES THAT COULD
CONCEIVABLY BE DISCONTINUED WITHOUT DIVESTITURE.  IN ADDITION THE TRIAL
EXAMINER FOUND THAT THE VIOLATION WAS NOT WILLFUL AND THAT THE PARTIES'
EXPERIENCE IN THIS PROCEEDING WOULD MAKE THEM MORE RESPONSIVE TO
REGULATION IN THE FUTURE. 

BY REFERRING TO THESE MITIGATING CONSIDERATIONS, WE HAVE NO INTENTION
OF PREJUDGING THE COMMISSION OR IMPLYING THAT DIVESTITURE WOULD BE
UNWARRANTED AFTER PROPER TREATMENT OF THE ISSUE.  THESE CONSIDERATIONS
MERELY INDICATE THAT A DOUBT CAN BE RAISED AND THAT A REMAND TO THE
COMMISSION IS NOT PURELY ACADEMIC FOR THE SAKE OF PROCEDURAL
REGULARITY.  WHEN THE COMMISSION HAS EXERCISED ITS JUDGMENT AND ISSUED
ITS CONSIDERED OPINION, THE PROPRIETY OF THE REMEDY CHOSEN WILL BE RIPE
FOR REVIEW.  JACOB SIEGEL CO. V. FEDERAL TRADE COMM'N, SUPRA;
ADMINISTRATIVE PROCEDURE ACT, SEC. 8(B), 60 STAT. 242, 5 U.S.C. SEC.
1007(B). 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED IN PART AND THE CASE
REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT
IS SO ORDERED. 

FN1  THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 1 ET SEQ., IS
HEREINAFTER REFERRED TO AS "THE ACT" OR BY THE SECTION NUMBER ALONE. 

FN2  "INTERLINING" IS THE PRACTICE WHEREBY A CARRIER, WHOSE
CERTIFICATED ROUTES DO NOT REACH THE SHIPMENT DESTINATION, TRANSFERS
THE SHIPMENT TO ANOTHER CARRIER FOR DELIVERY.  "INTERCHANGING" IS A
FORM OF INTERLINING WHEREBY THE TWO INTERLINING CARRIERS SWITCH
TRAILERS AT THE POINT OF TRANSFER.  AN INTERCHANGE IS MOST COMMON WHERE
THE SHIPMENT INVOLVES A TRUCKLOAD QUANTITY, AND THE EXCHANGE OF
TRAILERS OBVIATES THE NECESSITY OF UNLOADING THE SHIPMENT FROM THE
TRAILER OF THE TRANSFEROR AND LOADING IT ON THE TRAILER OF THE
TRANSFEREE.  THE TRAILER TAKEN IN EXCHANGE FOR THE SHIPMENT-TRAILER MAY
BE EITHER EMPTY OR LOADED WITH AN INTERLINE SHIPMENT IN THE OTHER
DIRECTION.  A FURTHER FORM OF INTERLINING INVOLVES THE USE OF A TRIP
LEASE FOR THE TRANSFEREE'S LEG OF THE JOURNEY.  THERE THE SHIPMENT
TRAILER IS TAKEN BY THE TRANSFEREE, BUT NO TRAILER IS GIVEN IN
EXCHANGE; INSTEAD THE TRANSFEROR WILL LEASE THE SHIPMENT-TRAILER TO THE
TRANSFEREE FOR THE COMPLETION OF THE TRIP. 

FN3  COMMISSION EMPLOYEE EDWARD D. SHEA TESTIFIED THAT GILBERTVILLE'S
TERMINAL MANAGER, JOHN KASHADY, HAD INFORMED HIM THAT BOTH THESE
PRACTICES WERE REGULARLY EMPLOYED.  GILBERTVILLE RECORDS ALSO INDICATE
THAT GILBERTVILLE LISTS THE NAMES OF ALL NELSON DRIVERS AND KEEPS THEIR
DOCTOR'S CERTIFICATES ON FILE.  OTHER RECORDS INDICATE THAT NELSON
DRIVERS ARE OFTEN HIRED BY GILBERTVILLE DURING THE SAME WEEK AND
SOMETIMES ON THE SAME DAY.  THE TRIP-LEASE ARRANGEMENT IS ALSO
SUPPORTED BY THE FACT THAT THE MAJORITY OF NELSON-GILBERTVILLE
INTERLINING IS AT MONSON, CONNECTICUT, WHERE GILBERTVILLE CO. KEEPS
ONLY AN OPEN LOT AND, WHEN POSSIBLE, AN EMPTY, UNGUARDED TRAILER FOR
THE RECEIPT OF LESS-THAN-TRUCKLOAD SHIPMENTS.  KENNETH NELSON'S
TESTIMONY ON THESE PRACTICES IS AMBIGUOUS BUT, IF ANYTHING, SUPPORTS
THEIR OCCURRENCE. 

FN4  EDWARD D. SHEA TESTIFIED THAT HE OBSERVED CHARLES CHILBERG HIRE
AND DISPATCH A GILBERTVILLE DRIVER AT NEWTON. 

HE ALSO TESTIFIED THAT HE OBSERVED KENNETH NELSON RECEIVE A TELETYPE
MESSAGE IN THE NELSON CO. OFFICES IN ELLINGTON, CONNECTICUT, AND DIRECT
NELSON CO. EMPLOYEES.  THE INCIDENT IS DISPUTED ON THE GROUND THAT SHEA
DID NOT HEAR ALL THE REMARKS MADE.  ON THE OTHER HAND, IT IS TO BE
NOTED THAT KENNETH NELSON REFUSED TO TURN OVER UPON REQUEST THE
TELETYPE MESSAGE HE RECEIVED ON THAT OCCASION, AN ACTION IN VIOLATION
OF COMMISSION REGULATIONS. 

FN5  SECTION 5(4) IS SUPPLEMENTED BY SEC. 5(5) AND (6) TO COVER
SPECIFIC INSTANCES WHERE CONTROL OVER ANOTHER CARRIER IS ACCOMPLISHED
WITH THE AID OF AN INTERMEDIARY.  SECTION 5(5) PROVIDES IN PART THAT
CONTROL OR MANAGEMENT IN A COMMON INTEREST IS CONCLUSIVELY PRESUMED
WHENEVER A PERSON "AFFILIATED" WITH A CARRIER JOINS WITH THAT CARRIER
TO ACQUIRE, OR ON HIS OWN ACQUIRES, CONTROL OVER ANOTHER CARRIER. 
PERSON SHALL BE HELD TO BE AFFILIATED WITH A CARRIER IF, BY REASON OF
THE RELATIONSHIP OF SUCH PERSON TO SUCH CARRIER  ...  , IT IS
REASONABLE TO BELIEVE THAT THE AFFAIRS OF ANY CARRIER OF WHICH CONTROL
MAY BE ACQUIRED BY SUCH PERSON WILL BE MANAGED IN THE INTEREST OF SUCH
OTHER CARRIER." 

PARENTHETICALLY, SEC. 5(6) STATES THAT THE RELATIONSHIP MAY BE SHOWN
"BY REASON OF THE METHOD OF, OR CIRCUMSTANCES SURROUNDING ORGANIZATION
OR OPERATION  ...  ." 

FN6  THE COMMITTEE REPORTS ON THESE SECTIONS PRIOR TO THEIR PASSAGE
IN THE EMERGENCY RAILROAD TRANSPORTATION ACT OF 1933 STATED THEIR
PURPOSE AS FOLLOWS: 

"THESE PARAGRAPHS HAVE BEEN PLANNED IN THE LIGHT OF WHAT HAS ALREADY
BEEN DONE THROUGH MYRIAD DEVICES WITHOUT COMMISSION SUPERVISION AND IN
DEFIANCE OF THE WILL OF CONGRESS  ...  .  THE PROVISIONS OF PARAGRAPH
(4)  ...  WOULD BE OF LITTLE EFFECT UNLESS THE LANGUAGE CONTAINED
THEREIN WERE CONSTRUED TO INCLUDE CONTROL OR MANAGEMENT EFFECTUATED OR
EXERCISED INDIRECTLY THROUGH THE USE OF LEGAL DEVICES SUCH AS HOLDING
COMPANIES, VOTING TRUSTS, AND COMBINATIONS OF AFFILIATED INTERESTS. 
IT IS THEREFORE INTENDED BY THE PROVISIONS OF PARAGRAPHS (5), (6)  ...
TO MAKE SURE THAT PARAGRAPH (4)  ...  COVERS SUCH TYPES OF CONTROL AND
MANAGEMENT."  S. REP. NO. 87, 73D CONG., 1ST SESS., PP. 9-10; H.R. REP.
NO. 193, 73D CONG., 1ST SESS., PP. 16-17. 

THE HOUSE MANAGER OF THE BILL SIMILARLY OBSERVED, 77 CONG. REC.
4857: 

"THE IMPORTANT POINT IS THAT UNIFICATIONS AND GROUPINGS OF RAILROADS
HAVE BEEN ACCOMPLISHED ENTIRELY WITHOUT SUPERVISION BY THE COMMISSION
AND WITHOUT ANY OPPORTUNITY TO CONSIDER THE QUESTION OF PUBLIC INTEREST
...  .  IT IS TO CORRECT THIS CONDITION, AND TO PREVENT THROUGH THE
USE OF HOLDING COMPANIES AND OTHER DEVICES THE DEFEAT OF THE
CONGRESSIONAL WILL, THAT THIS BILL HAS BEEN DRAWN." 

CONCRETE EXAMPLES OF THE DEVICES CONGRESS INTENDED TO REACH ARE FOUND
IN THE TESTIMONY OF COMMITTEE COUNSEL MR. WALTER SPLAWN AND INTERSTATE
COMMERCE COMMISSIONER JOSEPH EASTMAN DURING THE HEARINGS ON H.R. 9059
BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 72D
CONG., 1ST SESS., AT 21-25, 34, 48-50, 61, 69-74 (1932). 

FN7  HEARINGS OP. CIT., SUPRA, NOTE 6, PP. 16-19, 24-26; H.R. REP.
NO. 650, 66TH CONG., 2D SESS., PP. 63-64 (1920). 

FN8  IN ROCHESTER TELEPHONE CORP. V. UNITED STATES, SUPRA, PP. 145
146, THIS COURT GAVE THE FOLLOWING TEST FOR REVIEWING A SIMILAR FINDING
OF "CONTROL" BY THE FEDERAL COMMUNICATIONS COMMISSION AS THAT WORD IS
USED IN THE FEDERAL COMMUNICATIONS ACT, 48 STAT. 1064, 47 U.S.C.  SEC.
152(B): "THIS IS AN ISSUE OF FACT TO BE DETERMINED BY THE SPECIAL
CIRCUMSTANCES OF EACH CASE.  SO LONG AS THERE IS WARRANT IN THE RECORD
FOR THE JUDGMENT OF THE EXPERT BODY IT MUST STAND." 

FN9  IN VIEW OF THE DIRECT FINDING OF A SEC. 5(4) VIOLATION BY THE
COMMISSION AND OUR DETERMINATION THAT SUCH A FINDING WAS WARRANTED BY
THE STATUTE AND EVIDENCE, WE FIND IT UNNECESSARY TO CONSIDER THE
COMMISSION'S ALTERNATIVE HOLDING THAT KENNETH NELSON WAS "AFFILIATED"
WITH NELSON WITHIN THE MEANING OF SEC. 5(6) AND IS THEREFORE PRESUMED
TO HAVE EFFECTUATED CONTROL OR MANAGEMENT IN A COMMON INTEREST PURSUANT
TO SEC. 5(5) WHEN HE ACQUIRED GILBERTVILLE. 

THE APPELLANTS ATTACK THE OPINION OF THE DISTRICT COURT ON THE GROUND
THAT THERE ARE VARIATIONS BETWEEN ITS STATEMENT OF FACTS AND THE
FINDINGS OF THE COMMISSION.  SUCH VARIATIONS ARE INSIGNIFICANT IN LIGHT
OF THE FACT THAT THE COURT THEN QUOTES THE FINDINGS OF THE COMMISSION
GIVING RECORD CITATIONS FOR EACH STATEMENT.  THE APPELLANTS ALSO
CONTEND THAT WHEN THE DISTRICT COURT FOUND CERTAIN OF THE COMMISSION'S
FINDINGS TO BE "TRIVIAL" AND "IRRELEVANT," IT SHOULD HAVE REMANDED FOR
FURTHER FINDINGS.  HOWEVER, AS THE COURT ITSELF POINTED OUT, ITS
DISAGREEMENTS WITH THE COMMISSION WERE MINOR AND DID NOT AFFECT THE
SUBSTANCE OF THE COMMISSION'S ULTIMATE FINDING OF A VIOLATION.  CF.
COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 367 U.S. 1,
67. 
..END :








PEARLMAN V. RELIANCE INSURANCE CO. 371 U.S. 132 


NO. 78.  ARGUED OCTOBER 9-10, 1962.  - DECIDED DECEMBER 3, 1962.  - 298
F.2D 655, AFFIRMED. 


WHEN, BY REASON OF THE CONTRACTOR'S DEFAULT, A SURETY ON A PAYMENT
BOND GIVEN BY A CONTRACTOR UNDER THE MILLER ACT, 49 STAT. 793, HAS BEEN
COMPELLED TO PAY DEBTS OF THE CONTRACTOR FOR LABOR AND MATERIALS, THE
SURETY IS ENTITLED BY SUBROGATION TO REIMBURSEMENT FROM A FUND
OTHERWISE DUE TO THE CONTRACTOR BUT WITHHELD BY THE GOVERNMENT PURSUANT
TO THE TERMS OF THE CONTRACT - EVEN THOUGH THE CONTRACTOR HAS BECOME
BANKRUPT AND THE GOVERNMENT HAS TURNED THE WITHHELD FUND OVER TO THE
CONTRACTOR'S TRUSTEE IN BANKRUPTCY.  PP. 133-142. 

(A)  THIS FUND NEVER BECAME A PART OF THE BANKRUPTCY ESTATE AND ITS
DISPOSITION IS NOT CONTROLLED BY THE BANKRUPTCY ACT.  PP. 135-136. 

(B)  PRAIRIE STATE BANK V. UNITED STATES, 164 U.S. 227, AND
HENNINGSEN V. UNITED STATES FID.  & GUAR.  CO., 208 U.S. 404,
FOLLOWED.  PP. 137-139. 

(C)  THE MILLER ACT, WHICH REQUIRES SEPARATE PERFORMANCE AND PAYMENT
BONDS ON GOVERNMENT CONTRACTS, DID NOT CHANGE THE LAW AS DECLARED IN
THE PRAIRIE STATE BANK AND HENNINGSEN CASES.  PP. 139-140. 

(D)  THE PRAIRIE STATE BANK AND HENNINGSEN CASES WERE NOT OVERRULED
BY UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234.  PP. 140-142. 

PEARLMAN, TRUSTEE IN BANKRUPTCY, V. RELIANCE INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A DISPUTE BETWEEN THE TRUSTEE IN BANKRUPTCY OF A GOVERNMENT
CONTRACTOR AND THE CONTRACTOR'S PAYMENT BOND SURETY OVER WHICH HAS THE
SUPERIOR RIGHT AND TITLE TO A FUND WITHHELD BY THE GOVERNMENT OUT OF
EARNINGS DUE THE CONTRACTOR. 

THE PETITIONER, PEARLMAN, IS TRUSTEE OF THE BANKRUPT ESTATE OF THE
DUTCHER CONSTRUCTION CORPORATION, WHICH IN APRIL 1955 ENTERED INTO A
CONTRACT WITH THE UNITED STATES TO DO WORK ON THE GOVERNMENT'S ST.
LAWRENCE SEAWAY PROJECT.  AT THE SAME TIME THE RESPONDENT, RELIANCE
INSURANCE COMPANY, (FN1) EXECUTED TWO SURETY BONDS REQUIRED OF THE
CONTRACTOR BY THE MILLER ACT, ONE TO GUARANTEE PERFORMANCE OF THE
CONTRACT, THE OTHER TO GUARANTEE PAYMENT TO ALL PERSONS SUPPLYING LABOR
AND MATERIAL FOR THE PROJECT.  (FN2)  UNDER THE TERMS OF THE CONTRACT,
WHICH WAS ATTACHED TO AND MADE A PART OF THE PAYMENT BOND, THE UNITED
STATES WAS AUTHORIZED TO RETAIN AND HOLD A PERCENTAGE OF ESTIMATED
AMOUNTS DUE MONTHLY UNTIL FINAL COMPLETION AND ACCEPTANCE OF ALL WORK
COVERED BY THE CONTRACT.  BEFORE COMPLETION DUTCHER HAD FINANCIAL
TROUBLE AND THE UNITED STATES TERMINATED ITS CONTRACT BY AGREEMENT. 
ANOTHER CONTRACTOR COMPLETED THE JOB, WHICH WAS FINALLY ACCEPTED BY THE
GOVERNMENT.  AT THIS TIME THERE WAS LEFT IN THE GOVERNMENT'S WITHHELD
FUND $87,737.35, WHICH WOULD HAVE BEEN DUE TO BE PAID TO DUTCHER HAD IT
CARRIED OUT ITS OBLIGATION TO PAY ITS LABORERS AND MATERIALMEN.  SINCE
IT HAD NOT MET THIS OBLIGATION, ITS SURETY HAD BEEN COMPELLED TO PAY
ABOUT $350,000 TO DISCHARGE DEBTS OF THE CONTRACTOR FOR LABOR AND
MATERIALS.  IN THIS SITUATION THE GOVERNMENT WAS HOLDING OVER $87,000
WHICH PLAINLY BELONGED TO SOMEONE ELSE, AND THE FUND WAS TURNED OVER TO
THE BANKRUPT'S TRUSTEE, WHO HELD IT ON THE ASSUMPTION THAT IT HAD BEEN
PROPERTY OF THE BANKRUPT AT THE TIME OF ADJUDICATION AND THEREFORE HAD
VESTED IN THE TRUSTEE "BY OPERATION OF LAW" UNDER SEC. 70 OF THE
BANKRUPTCY ACT.  (FN3)  THE SURETY THEN FILED A PETITION IN THE
DISTRICT COURT DENYING THAT THE FUND HAD VESTED IN THE TRUSTEE,
ALLEGING THAT IT, THE SURETY, WAS "THE OWNER OF SAID SUM" OF $87,737.35
"FREE AND CLEAR OF THE CLAIMS OF THE TRUSTEE IN BANKRUPTCY OR ANY OTHER
PERSON, FIRM OR CORPORATION," AND SEEKING AN ORDER DIRECTING THE
TRUSTEE TO PAY OVER THE FUND TO THE SURETY FORTHWITH.  (FN4)  THE
REFEREE IN BANKRUPTCY, RELYING CHIEFLY ON THIS COURT'S OPINION IN
UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234 (1947), HELD THAT THE
SURETY HAD NO SUPERIOR RIGHTS IN THE FUND, REFUSED TO DIRECT PAYMENT TO
THE SURETY, AND ACCORDINGLY ORDERED THE SURETY'S CLAIM TO BE ALLOWED AS
THAT OF A GENERAL CREDITOR ONLY TO SHARE ON AN EQUALITY WITH THE
GENERAL RUN OF UNSECURED CREDITORS.  (FN5)  THE DISTRICT COURT VACATED
THE REFEREE'S ORDER AND HELD THAT CASES DECIDED PRIOR TO MUNSEY HAD
ESTABLISHED THE RIGHT OF A SURETY UNDER CIRCUMSTANCES LIKE THIS TO BE
ACCORDED PRIORITY OVER GENERAL CREDITORS AND THAT MUNSEY HAD NOT
CHANGED THAT RULE.  (FN6)  THE SECOND CIRCUIT AFFIRMED.  (FN7)  OTHER
FEDERAL COURTS HAVE REACHED A CONTRARY RESULT, (FN8) AND AS THE
QUESTION IS AN IMPORTANT AND RECURRING ONE, WE GRANTED CERTIORARI TO
DECIDE IT.  (FN9) 

ONE ARGUMENT AGAINST THE SURETY'S CLAIM IS THAT THIS CONTROVERSY IS
GOVERNED ENTIRELY BY THE BANKRUPTCY ACT AND THAT SEC. 64, 11 U.S.C.
SEC. 104, WHICH PRESCRIBES PRIORITIES FOR DIFFERENT CLASSES OF
CREDITORS, GIVES NO PRIORITY TO A SURETY'S CLAIM FOR REIMBURSEMENT. 
BUT THE PRESENT DISPUTE - WHO HAS THE PROPERTY INTERESTS IN THE FUND,
AND HOW MUCH - IS NOT SO SIMPLY SOLVED.  OWNERSHIP OF PROPERTY RIGHTS
BEFORE BANKRUPTCY IS ONE THING; PRIOITY OF DISTRIBUTION IN BANKRUPTCY
OF PROPERTY THAT HAS PASSED UNENCUMBERED INTO A BANKRUPT'S ESTATE IS
QUITE ANOTHER.  PROPERTY INTERESTS IN A FUND NOT OWNED BY A BANKRUPT AT
THE TIME OF ADJUDICATION, WHETHER COMPLETE OR PARTIAL, LEGAL OR
EQUITABLE, MORTGAGES, LIENS, OR SIMPLE PRIORITY OF RIGHTS, ARE OF
COURSE NOT A PART OF THE BANKRUPT'S PROPERTY AND DO NOT VEST IN THE
TRUSTEE.  THE BANKRUPTCY ACT SIMPLY DOES NOT AUTHORIZE A TRUSTEE TO
DISTRIBUTE OTHER PEOPLE'S PROPERTY AMONG A BANKRUPT'S CREDITORS. 
(FN10)  SO HERE IF THE SURETY AT THE TIME OF ADJUDICATION WAS, AS IT
CLAIMED, EITHER THE OUTRIGHT LEGAL OR EQUITABLE OWNER OF THIS FUND, OR
HAD AN EQUITABLE LIEN OR PRIOR RIGHT TO IT, THIS PROPERTY INTEREST OF
THE SURETY NEVER BECAME A PART OF THE BANKRUPTCY ESTATE TO BE
ADMINISTERED, LIQUIDATED, AND DISTRIBUTED TO GENERAL CREDITORS OF THE
BANKRUPT.  THIS COURT HAS RECENTLY REAFFIRMED THAT SUCH PROPERTY RIGHTS
EXISTING BEFORE BANKRUPTCY IN PERSONS OTHER THAN THE BANKRUPT MUST BE
RECOGNIZED AND RESPECTED IN BANKRUPTCY.  (FN11)  CONSEQUENTLY OUR
QUESTION IS NOT WHO WAS ENTITLED TO PRIORITY IN DISTRIBUTIONS UNDER
SEC. 64, BUT WHETHER THE SURETY HAD, AS IT CLAIMED, OWNERSHIP OF, AN
EQUITABLE LIEN ON, OR A PRIOR RIGHT TO THIS FUND BEFORE BANKRUPTCY
ADJUDICATION. 

SINCE THERE IS NO STATUTE WHICH EXPRESSLY DECLARES THAT A SURETY DOES
ACQUIRE A PROPERTY INTEREST IN A FUND LIKE THIS UNDER THE CIRCUMSTANCES
HERE, WE MUST SEEK AN ANSWER IN PRIOR JUDICIAL DECISIONS.  SOME OF THE
RELEVANT FACTORS IN DETERMINING THE QUESTION ARE BEYOND DISPUTE. 
TRADITIONALLY SURETIES COMPELLED TO PAY DEBTS FOR THEIR PRINCIPAL HAVE
BEEN DEEMED ENTITLED TO REIMBURSEMENT, EVEN WITHOUT A CONTRACTUAL
PROMISE SUCH AS THE SURETY HERE HAD.  (FN12)  AND PROBABLY THERE ARE
FEW DOCTRINES BETTER ESTABLISHED THAN THAT A SURETY WHO PAYS THE DEBT
OF ANOTHER IS ENTITLED TO ALL THE RIGHTS OF THE PERSON HE PAID TO
ENFORCE HIS RIGHT TO BE REIMBURSED.  (FN13) THIS RULE, WIDELY APPLIED
IN THIS COUNTRY (FN14) AND GENERALLY KNOWN AS THE RIGHT OF SUBROGATION,
WAS RELIED ON BY THE COURT OF APPEALS IN THIS CASE.  IT SEEMS RATHER
PLAIN THAT AT LEAST TWO PRIOR DECISIONS OF THIS COURT HAVE HELD THAT
THERE IS A SECURITY INTEREST IN A WITHHELD FUND LIKE THIS TO WHICH THE
SURETY IS SUBROGATED, UNLESS, AS IS ARGUED, THE RULE LAID DOWN IN THOSE
CASES HAS BEEN CHANGED BY PASSAGE OF THE MILLER ACT OR BY OUR HOLDING
IN THE MUNSEY CASE.  THOSE TWO CASES ARE PRAIRIE STATE BANK V. UNITED
STATES, 164 U.S. 227 (1896), AND HENNINGSEN V. UNITED STATES FID.  &
GUAR.  CO., 208 U.S. 404 (1908). 

IN THE PRAIRIE BANK CASE A SURETY WHO HAD BEEN COMPELLED TO COMPLETE
A GOVERNMENTAL CONTRACT UPON THE CONTRACTOR'S DEFAULT IN PERFORMANCE
CLAIMED THAT HE WAS ENTITLED TO BE REIMBURSED FOR HIS EXPENDITURE OUT
OF A FUND THAT AROSE FROM THE GOVERNMENT'S RETENTION OF 10% OF THE
ESTIMATED VALUE OF THE WORK DONE UNDER THE TERMS OF THE CONTRACT
BETWEEN THE ORIGINAL CONTRACTOR AND THE GOVERNMENT.   THAT CONTRACT
CONTAINED ALMOST THE SAME PROVISIONS FOR RETENTION OF THE FUND AS THE
CONTRACT PRESENTLY BEFORE US.  THE PRAIRIE BANK, CONTESTING THE
SURETY'S CLAIM, ASSERTED THAT IT HAD A SUPERIOR EQUITABLE LIEN ARISING
FROM MONEYS ADVANCED BY THE BANK TO THE CONTRACTOR BEFORE THE SURETY
BEGAN TO COMPLETE THE WORK.  THE COURT, IN A WELL-REASONED OPINION BY
MR. JUSTICE WHITE, HELD THAT THIS FUND MATERIALLY TENDED TO PROTECT THE
SURETY, THAT IS CREATION RAISED AN EQUITY IN THE SURETY'S FAVOR, THAT
THE UNITED STATES WAS ENTITLED TO PROTECT ITSELF OUT OF THE FUND, AND
THAT THE SURETY, BY ASSERTING THE RIGHT OF SUBROGATION, COULD PROTECT
ITSELF BY RESORT TO THE SAME SECURITIES AND SAME REMEDIES WHICH HAD
BEEN AVAILABLE TO THE UNITED STATES FOR ITS PROTECTION AGAINST THE
CONTRACTOR.  THE COURT THEN WENT ON TO QUOTE WITH OBVIOUS APPROVAL THIS
STATEMENT FROM A STATE CASE:

"THE LAW UPON THIS SUBJECT SEEMS TO BE, THE RESERVED PER CENT TO BE
WITHHELD UNTIL THE COMPLETION OF THE WORK TO BE DONE IS AS MUCH FOR THE
INDEMNITY OF HIM WHO MAY BE A GUARANTOR OF THE PERFORMANCE OF THE
CONTRACT AS FOR HIM FOR WHOM IT IS TO BE PERFORMED.  AND THERE IS GREAT
JUSTNESS IN THE RULE ADOPTED.  EQUITABLY, THEREFORE, THE SURETIES IN
SUCH CASES ARE ENTITLED TO HAVE THE SUM AGREED UPON HELD AS A FUND OUT
OF WHICH THEY MAY BE INDEMNIFIED, AND IF THE PRINCIPAL RELEASES IT
WITHOUT THEIR CONSENT IT DISCHARGES THEM FROM THEIR UNDERTAKING."  164
U.S., AT 239, QUOTING FROM FINNEY V. CONDON, 86 ILL. 78, 81 (1877). 

THE PRAIRIE BANK CASE THUS FOLLOWED AN ALREADY ESTABLISHED DOCTRINE
THAT A SURETY WHO COMPLETES A CONTRACT HAS AN "EQUITABLE RIGHT" TO
INDEMNIFICATION OUT OF A RETAINED FUND SUCH AS THE ONE CLAIMED BY THE
SURETY IN THE PRESENT CASE.  THE ONLY DIFFERENCE IN THE TWO CASES IS
THAT HERE THE SURETY INCURRED HIS LOSSES BY PAYING DEBTS FOR THE
CONTRACTOR RATHER THAN BY FINISHING THE CONTRACT. 

THE HENNINGSEN CASE, DECIDED 12 YEARS LATER IN 1908, CARRIED THE
PRAIRIE BANK CASE STILL CLOSER TO OURS.  HENNINGSEN HAD CONTRACTS WITH
THE UNITED STATES TO CONSTRUCT PUBLIC BUILDINGS.  HIS SURETY STIPULATED
NOT ONLY THAT THE CONTRACTOR WOULD PERFORM AND CONSTRUCT THE BUILDINGS,
BUT ALSO, AS STATED BY THE COURT, THAT HE WOULD "PAY PROMPTLY AND IN
FULL ALL PERSONS SUPPLYING LABOR AND MATERIAL IN THE PROSECUTION OF THE
WORK CONTRACTED FOR."  (FN15)  HENNINGSEN COMPLETED THE BUILDINGS
ACCORDING TO CONTRACT BUT FAILED TO PAY HIS LABORERS AND MATERIALMEN. 
THE SURETY PAID.  THIS COURT APPLIED THE EQUITABLE PRINCIPLES DECLARED
IN THE PRAIRIE BANK CASE SO AS TO ENTITLE THE SURETY TO THE SAME
EQUITABLE CLAIM TO THE RETAINED FUND THAT THE SURETY IN THE PRAIRIE
BANK CASE WAS HELD TO HAVE.  THUS THE SAME EQUITABLE RULES AS TO
SUBROGATION AND PROPERTY INTERESTS IN A RETAINED FUND WERE HELD TO
EXIST WHETHER A SURETY COMPLETES A CONTRACT OR WHETHER, THOUGH NOT
CALLED UPON TO COMPLETE THE CONTRACT, IT PAYS THE LABORERS AND
MATERIALMEN.  THESE TWO CASES THEREFORE, TOGETHER WITH OTHER CASES THAT
HAVE FOLLOWED THEM, (FN16) ESTABLISH THE SURETY'S RIGHT TO SUBROGATION
IN SUCH A FUND WHETHER ITS BOND BE FOR PERFORMANCE OR PAYMENT.  UNLESS
THIS RULE HAS BEEN CHANGED, THE SURETY HERE HAS A RIGHT TO THIS
RETAINED FUND. 

IT IS ARGUED THAT THE MILLER ACT (FN17) CHANGED THE LAW AS DECLARED
IN THE PRAIRIE BANK AND HENNINGSEN CASES.  WE THINK NOT.  CERTAINLY NO
LANGUAGE OF THE ACT DOES, AND WE HAVE BEEN POINTED TO NO LEGISLATIVE
HISTORY THAT INDICATES SUCH A PURPOSE.  THE SUGGESTION IS, HOWEVER,
THAT A CONGRESSIONAL PURPOSE TO REPUDIATE THE EQUITABLE DOCTRINE OF THE
TWO CASES SHOULD BE IMPLIED FROM THE FACT THAT THE MILLER ACT REQUIRED
A PUBLIC CONTRACT SURETY TO EXECUTE TWO BONDS INSTEAD OF THE ONE
FORMERLY REQUIRED.  IT IS TRUE THAT THE MILLER ACT DID REQUIRE BOTH A
PERFORMANCE BOND AND AN ADDITIONAL PAYMENT BOND, THAT IS, ONE TO ASSURE
COMPLETION OF THE CONTRACT AND ONE TO ASSURE PAYMENTS BY THE CONTRACTOR
FOR MATERIALS AND LABOR.  BUT THE PRIOR ACTS ON THIS SUBJECT, WHILE
REQUIRING ONLY ONE BOND, MADE IT COVER BOTH PERFORMANCE AND PAYMENT. 
(FN18)  NEITHER THIS SLIGHT DIFFERENCE IN THE NEW AND THE OLD ACTS NOR
ANY OTHER ARGUMENT PRESENTED PERSUADES US THAT CONGRESS IN PASSING THE
MILLER ACT INTENDED TO REPUDIATE EQUITABLE PRINCIPLES SO DEEPLY
IMBEDDED IN OUR COMMERCIAL PRACTICES, OUR ECONOMY, AND OUR LAW AS THOSE
SPELLED OUT IN THE PRAIRIE BANK AND HENNINGSEN CASES.  (FN19) 

THE FINAL ARGUMENT IS THAT THE PRAIRIE BANK AND HENNINGSEN CASES WERE
IN EFFECT OVERRULED BY OUR HOLDING AND OPINION IN UNITED STATES V.
MUNSEY TRUST CO., SUPRA.  THE POINT AT ISSUE IN THAT CASE WAS WHETHER
THE UNITED STATES WHILE HOLDING A FUND LIKE THE ONE IN THIS CASE COULD
OFFSET AGAINST THE CONTRACTOR A CLAIM BEARING NO RELATIONSHIP TO THE
CONTRACTOR'S CLAIM THERE AT ISSUE.  WE HELD THAT THE GOVERNMENT COULD
EXERCISE THE WELL-ESTABLISHED COMMON-LAW RIGHT OF DEBTORS TO OFFSET
CLAIMS OF THEIR OWN AGAINST THEIR CREDITORS.  THIS WAS ALL WE HELD. 
THE OPINION CONTAINED STATEMENTS WHICH SOME HAVE INTERPRETED (FN20) AS
MEANING THAT WE WERE ABANDONING THE ESTABLISHED LEGAL AND EQUITABLE
PRINCIPLES OF THE PRAIRIE BANK AND HENNINGSEN CASES UNDER WHICH
SURETIES CAN INDEMNIFY THEMSELVES AGAINST LOSSES.  BUT THE EQUITABLE
RIGHTS OF A SURETY DECLARED IN THE PRAIRIE BANK CASE AS TO SURETIES WHO
COMPLETE THE PERFORMANCE OF A CONTRACT WERE EXPRESSLY RECOGNIZED AND
APPROVED IN MUNSEY, (FN21) AND THE HENNINGSEN RULE AS TO SURETIES WHO
HAD NOT COMPLETED THE CONTRACT BUT HAD PAID LABORERS WAS NOT
MENTIONED.  HENNINGSEN WAS NOT EVEN CITED IN THE MUNSEY OPINION.  WE
HOLD THAT MUNSEY LEFT THE RULE IN PRAIRIE BANK AND HENNINGSEN
UNDISTURBED.  WE CANNOT SAY THAT SUCH A FIRMLY ESTABLISHED RULE WAS SO
CASUALLY OVERRULED.  (FN22) 

WE THEREFORE HOLD IN ACCORD WITH THE ESTABLISHED LEGAL PRINCIPLES
STATED ABOVE THAT THE GOVERNMENT HAD A RIGHT TO USE THE RETAINED FUND
TO PAY LABORERS AND MATERIALMEN; THAT THE LABORERS AND MATERIALMEN HAD
A RIGHT TO BE PAID OUT OF THE FUND; THAT THE CONTRACTOR, HAD HE
COMPLETED HIS JOB AND PAID HIS LABORERS AND MATERIALMEN, WOULD HAVE
BECOME ENTITLED TO THE FUND; AND THAT THE SURETY, HAVING PAID THE
LABORERS AND MATERIALMEN, IS ENTITLED TO THE BENEFIT OF ALL THESE
RIGHTS TO THE EXTENT NECESSARY TO REIMBURSE IT.  (FN23)  CONSEQUENTLY,
SINCE THE SURETY IN THIS CASE HAS PAID OUT MORE THAN THE AMOUNT OF THE
EXISTING FUND, IT HAS A RIGHT TO ALL OF IT.  ON THIS BASIS THE JUDGMENT
OF THE COURT OF APPEALS IS AFFIRMED.    FN1  THE COMPANY WAS THEN KNOWN
AS FIRE ASSOCIATION OF PHILADELPHIA. 

FN2  40 U.S.C. SEC. 270A PROVIDES IN PART AS FOLLOWS: 

"(A) BEFORE ANY CONTRACT, EXCEEDING $2,000 IN AMOUNT, FOR THE
CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC
WORK OF THE UNITED STATES IS AWARDED TO ANY PERSON, SUCH PERSON SHALL
FURNISH TO THE UNITED STATES THE FOLLOWING BONDS, WHICH SHALL BECOME
BINDING UPON THE AWARD OF THE CONTRACT TO SUCH PERSON, WHO IS
HEREINAFTER DESIGNATED AS 'CONTRACTOR': 

"(1) A PERFORMANCE BOND WITH A SURETY OR SURETIES SATISFACTORY TO THE
OFFICER AWARDING SUCH CONTRACT, AND IN SUCH AMOUNT AS HE SHALL DEEM
ADEQUATE, FOR THE PROTECTION OF THE UNITED STATES. 

"(2) A PAYMENT BOND WITH A SURETY OR SURETIES SATISFACTORY TO SUCH
OFFICER FOR THE PROTECTION OF ALL PERSONS SUPPLYING LABOR AND MATERIAL
IN THE PROSECUTION OF THE WORK PROVIDED FOR IN SAID CONTRACT FOR THE
USE OF EACH SUCH PERSON." 

FN3  30 STAT. 565 (1898), 11 U.S.C. SEC. 110. 

FN4  THE SURETY APPEARS ALSO TO HAVE CLAIMED SOME GENERAL PRIORITY
OVER ALL CREDITORS FOR THE ENTIRE $350,000 IT HAD PAID OUT FOR THE
CONTRACTOR, BASED ON "LIENS, SUBROGATION AND ASSIGNMENT," BUT HERE ITS
PETITION FOR CERTIORARI AND BRIEFS SEEM TO LIMIT ITS CLAIM TO THE NET
AMOUNT OF THE RETAINED FUND TURNED OVER TO THE TRUSTEE BY THE
GOVERNMENT. 

FN5  35 J.N.A. REF. BANKR.  81 (1961). 

FN6  IN RE DUTCHER CONSTR.  CORP., 197 F. SUPP. 441 (D.C.W.D.N.Y.
1961). 

FN7  298 F.2D 655 (C.A.2D CIR. 1962). 

FN8  SEE, E.G., AMERICAN SUR.  CO. V. HINDS, 260 F.2D 366 (C.A. 10TH
CIR. 1958); PHOENIX INDEM.  CO. V. EARLE, 218 F.2D 645 (C.A. 9TH CIR.
1955). 

FN9  369 U.S. 847 (1962). 

FN10  SEE JUSTICE HOLMES' DISCUSSION IN SEXTON V. KESSLER & CO., 225
U.S. 90, 98-99 (1912).  AS TO THE DIFFICULTIES INHERENT IN PHRASES LIKE
"EQUITABLE LIEN," SEE GLENN, THE "EQUITABLE PLEDGE", CREDITORS' RIGHTS,
AND THE CHANDLER ACT, 25 VA. L. REV. 422, 423 (1939). 

FN11  UNITED STATES V. DURHAM LUMBER CO., 363 U.S. 522 (1960).  SEE
ALSO SECURITY MORTGAGE CO. V. POWERS, 278 U.S. 149 (1928), AND CASES
COLLECTED IN 6 AM. JUR., BANKRUPTCY, SEC. 949 (REV. ED. 1950).  CF.
AQUILINO V. UNITED STATES, 363 U.S. 509 (1960). 

FN12  "THE RIGHT OF SUBROGATION IS NOT FOUNDED ON CONTRACT.  IT IS A
CREATURE OF EQUITY; IS ENFORCED SOLELY FOR THE PURPOSE OF ACCOMPLISHING
THE ENDS OF SUBSTANTIAL JUSTICE; AND IS INDEPENDENT OF ANY CONTRACTUAL
RELATIONS BETWEEN THE PARTIES."  MEMPHIS & L.R.R. CO. V. DOW, 120 U.S.
287, 301-302 (1887). 

FN13  SEE, E.G., HAMPTON V. PHIPPS, 108 U.S. 260, 263 (1883);
LIDDERDALE'S EXECUTORS V. ROBINSON'S EXECUTOR, 12 WHEAT.  594 (1827);
DUNCAN, FOX, & CO. V. NORTH AND SOUTH WALES BANK, 6 APP. CAS. 1 (H.L.
1880).  SEE GENERALLY SHELDON, SUBROGATION, SEC. 11 (1882). 

FN14  SEE CASES COLLECTED IN 50 AM. JUR., SUBROGATION, SEC. 49
(1944). 

FN15  208 U.S., AT 410. 

FN16  SEE, E.G., MARTIN V. NATIONAL SUR.  CO., 85 F.2D 135 (C.A. 8TH
CIR. 1936), AFF'D, 300 U.S. 588 (1937); IN RE SCOFIELD CO., 215 F. 45
(C.A.2D CIR. 1914); NATIONAL SUR.  CORP.  V. UNITED STATES, 132 CT. CL.
724, 133 F. SUPP. 381, CERT. DENIED SUB NOM. FIRST NAT. BANK V. UNITED
STATES, 350 U.S. 902 (1955). 

FN17  SEE NOTE 2, SUPRA. 

FN18  28 STAT. 278 (1894), AMENDED, 33 STAT. 811 (1905). 

FN19  AMONG THE PROBLEMS WHICH WOULD BE RAISED BY A CONTRARY RESULT
WOULD BE THE UNSETTLING OF THE USUAL VIEW, GROUNDED IN COMMERCIAL
PRACTICE, THAT SURETYSHIP IS NOT INSURANCE.  THIS DISTINCTION IS
DISCUSSED IN CUSHMAN, SURETY BONDS ON PUBLIC AND PRIVATE CONSTRUCTION
PROJECTS, 46 A.B.A.J. 649, 652-653 (1960). 

FN20  SEE NOTE 8, SUPRA. 

FN21  332 U.S., AT 240. 

FN22  STATE COURTS LIKEWISE APPLY THE RULE THAT SURETIES ON PUBLIC
CONTRACTS ARE ENTITLED TO THE BENEFITS OF SUBROGATION.  SEE CASES
COLLECTED IN 43 AM. JUR., PUBLIC WORKS AND CONTRACTS, SEC. 197 (1942). 

FN23  SEE THE SOMEWHAT DIFFERENT BUT CLOSELY RELATED DISCUSSION BY
WHICH MR. JUSTICE CARDOZO, SPEAKING FOR THIS COURT, REACHED A SIMILAR
RESULT IN MARTIN V. NATIONAL SUR.  CO., 300 U.S. 588, 597-598 (1937). 

OUR RESULT HAS ALSO BEEN REACHED BY THE COURT OF CLAIMS IN CASES
SUBSTANTIALLY LIKE OURS.  CONTINENTAL CAS. CO. V. UNITED STATES, 145
CT. CL. 99, 169 F. SUPP. 945 (1959); NATIONAL SUR.  CORP. V. UNITED
STATES, 132 CT. CL. 724, 133 F. SUPP. 381, CERT. DENIED SUB NOM. FIRST
NAT.  BANK V. UNITED STATES, 350 U.S. 902 (1955); ROYAL INDEM.  CO. V.
UNITED STATES, 117 CT. CL.  736, 93 F. SUPP. 891 (1950).  SEE GENERALLY
SPEIDEL, "STAKEHOLDER" PAYMENTS UNDER FEDERAL CONSTRUCTION CONTRACTS:
PAYMENT BOND SURETY VS. ASSIGNEE, 47 VA. L. REV. 640, 646-648 (1961);
NOTE, RECONSIDERATION OF SUBROGATIVE RIGHTS OF THE MILLER ACT PAYMENT
BOND SURETY, 71 YALE L.J. 1274 (1962); COMMENT, 33 CORNELL L.Q. 443
(1948). 

MR. JUSTICE WHITE DISSENTS. 

MR. JUSTICE CLARK WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, CONCURRING IN THE RESULT. 

THE COURT HOLDS THAT THE SURETY COMPANY HERE IS ENTITLED TO THE FUNDS
THE GOVERNMENT HAS PAID INTO COURT ON THE THEORY THAT THE SURETY IS
SUBROGATED TO THE CLAIMS OF THE LABORERS AND MATERIALMEN WHICH IT HAS
PAID.  I CANNOT AGREE.  NONE OF THE CASES IN THIS COURT SO HOLD. 
INDEED, IN UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234 (1947), THIS
COURT SAID: 

"BUT NOTHING IS MORE CLEAR THAN THAT LABORERS AND MATERIALMEN DO NOT
HAVE ENFORCEABLE RIGHTS AGAINST THE UNITED STATES FOR THEIR
COMPENSATION  ...  .  THEY CANNOT ACQUIRE A LIEN ON PUBLIC BUILDINGS
...  AND AS A SUBSTITUTE FOR THAT MORE CUSTOMARY PROTECTION, THE
VARIOUS STATUTES WERE PASSED WHICH REQUIRE THAT A SURETY GUARANTEE
THEIR PAYMENT.  OF THESE, THE LAST AND THE ONE NOW IN FORCE IS THE
MILLER ACT UNDER WHICH THE BONDS HERE WERE DRAWN."  ID., AT P. 241. 

"IT IS ELEMENTARY THAT ONE CANNOT ACQUIRE BY SUBROGATION WHAT ANOTHER
WHOSE RIGHTS HE CLAIMS DID NOT HAVE  ...  ."  ID., AT P. 242. 

SINCE THE LABORERS AND MATERIALMEN HAVE NO RIGHT AGAINST THE FUNDS,
IT FOLLOWS AS CLEAR AS RAIN THAT THE SURETY COULD HAVE NONE.  IT
APPEARS TO ME THAT TODAY'S HOLDING THAT LABORERS AND MATERIALMEN HAD
"RIGHTS" TO FUNDS IN THE GOVERNMENT'S HANDS MIGHT JEOPARDIZE THE RIGHTS
OF THE UNITED STATES AND HAVE SERIOUS CONSEQUENCES FOR ITS BUILDING
OPERATIONS.  THE CONGRESS HAS NOT SO PROVIDED AND I WOULD NOT SO HOLD. 

HOWEVER, THIS COURT HAS HELD IN TWO CASES NOT NECESSARY TO THE
DECISION IN MUNSEY THAT THE SURETY WHO PAYS LABORERS' AND MATERIALMEN'S
CLAIMS STANDS IN THE SHOES OF THE UNITED STATES AND IS ENTITLED TO
SURPLUS FUNDS REMAINING IN ITS HANDS AFTER THE CONTRACT IS COMPLETED. 
THE FIRST IS PRAIRIE STATE BANK V. UNITED STATES, 164 U.S. 227 (1896),
AND THE OTHER HENNINGSEN V. U.S. FID.  & GUAR.  CO., 208 U.S. 404
(1908).  IN NEITHER OF THOSE CASES, HOWEVER, DID THE COURT FIND THAT
LABORERS AND MATERIALMEN HAD ANY RIGHT AGAINST THE UNITED STATES BUT
ONLY THAT THE "GUARANTY COMPANY WAS ENTITLED TO SUBROGATION TO ANY
RIGHT OF THE UNITED STATES GOVERNMENT ARISING THROUGH THE BUILDING
CONTRACT."  HENNINGSEN, SUPRA, AT P. 410. 

SINCE THE FUNDS HERE HAVE BEEN PAID INTO COURT BY THE GOVERNMENT,
THERE IS SOME QUESTION WHETHER THE DOCTRINE OF THOSE CASES WOULD
APPLY.  IN EACH OF THEM THE MONEY WAS IN THE HANDS OF THE UNITED STATES
AT THE TIME THE SUIT WAS COMMENCED AND WAS CLEARLY APPLICABLE TO
PAYMENT OF ANY DEBT UNDER THE CONTRACT.  IT WOULD, THEREFORE, BE MY
VIEW THAT THE EQUITIES EXISTING HERE IN FAVOR OF THE SURETY GROW OUT OF
THE CONTRACT BETWEEN IT AND THE CONTRACTOR (IN WHOSE SHOES THE TRUSTEE
NOW STANDS), WHICH WAS MADE IN CONSIDERATION OF THE EXECUTION OF THE
BOND.  UNDER THAT AGREEMENT IN THE EVENT OF ANY BREACH OR DEFAULT IN
THE CONSTRUCTION CONTRACT ALL SUMS BECOMING DUE THEREUNDER WERE
ASSIGNED TO THE SURETY TO BE CREDITED AGAINST ANY LOSS OR DAMAGE IT
MIGHT SUFFER THEREBY.  IN MARTIN V. NATIONAL SURETY CO., 300 U.S. 588
(1937), THIS COURT IN AN IDENTICAL SITUATION* AWARDED SUCH A FUND TO
THE SURETY.  MR. JUSTICE CARDOZO, FOR A UNANIMOUS COURT, SAID:  "IN OUR
VIEW OF THE LAW, THE EQUITIES IN FAVOR OF MATERIALMEN GROWING OUT OF
THAT AGREEMENT (BETWEEN THE SURETY AND THE CONTRACTOR) WERE IMPRESSED
UPON THE FUND IN THE POSSESSION OF THE COURT."  ID., AT PP. 593-594. 
IT IS WELL TO NOTE ALSO THAT THE COURT OF APPEALS IN MARTIN HAD BASED
ITS DECISION ON THE THEORY ANNOUNCED BY THE COURT TODAY, BUT MR.
JUSTICE CARDOZO FOR A UNANIMOUS COURT CHOSE THE "NARROWER" GROUND OF
THE ASSIGNMENT IN AFFIRMING THE JUDGMENT FOR THE SURETY.  I AGREE WITH
MARTIN AS TO THE "NARROWER" GROUND AND BELIEVE THE COURT SHOULD KEEP
THE OPINION TODAY "WITHIN THE NECESSITIES OF THE SPECIFIC CONTROVERSY"
RATHER THAN ENLARGING UPON THE RULES OF HENNINGSEN AND PRAIRIE STATE
BANK.  IN SO DOING THE COURT WOULD BUT FULFILL THE PROPHECY MADE IN
MARTIN THAT "THE GROUNDS CHOSEN  ...  MAY BE EXPECTED TO BE HELPFUL AS
A GUIDE IN OTHER CASES."  ID., AT P. 593. 

* IN MARTIN THE CONTRACTOR ASSIGNED TO THE SURETY "ALL THE DEFERRED
PAYMENTS AND RETAINED PERCENTAGES, AND ANY AND ALL MONEYS AND
PROPERTIES THAT MAY BE DUE AND PAYABLE TO THE UNDERSIGNED AT THE TIME
OF ANY BREACH OR DEFAULT IN SAID CONTRACT, OR  ... THEREAFTER  ...  ." 
ID., AT PP. 590-591.  HERE THE ASSIGNMENT WAS OF, INTER ALIA, "ANY AND
ALL PERCENTAGES OF THE CONTRACT PRICE RETAINED ON ACCOUNT OF SAID
CONTRACT, AND ANY AND ALL SUMS THAT MAY BE DUE UNDER SAID CONTRACT AT
THE TIME OF SUCH  ...  FORFEITURE OR BREACH, OR THAT THEREAFTER MAY
BECOME DUE  ...  ." 

I WOULD AFFIRM THE JUDGMENT ON THIS BASIS. 
..END :



















FEDERAL POWER COMMISSION V. TENNESSEE GAS TRANSMISSION CO. 371 U.S. 145 



NO. 48.  ARGUED OCTOBER 17, 1962.  - DECIDED DECEMBER 3, 1962.* - 293
F.2D 761, AFFIRMED IN PART AND REVERSED IN PART. 

*TOGETHER WITH NO. 50, PITTSBURGH V. TENNESSEE GAS TRANSMISSION CO.
ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


UNDER SEC. 4 OF THE NATURAL GAS ACT, A NATURAL GAS PIPELINE COMPANY
FILED INCREASED RATE SCHEDULES FOR ITS 6 DIFFERENT RATE ZONES.  ALL
SUCH INCREASED RATES WERE PREDICATED, IN PART, ON A COST OF SERVICE
WHICH INCLUDED A CLAIM TO A 7% RATE OF RETURN ON INVESTMENT.  AFTER
SUSPENSION BY THE FEDERAL POWER COMMISSION FOR THE FULL 5 MONTHS
PERMITTED BY LAW, THE NEW RATES WENT INTO EFFECT, SUBJECT TO REFUND OF
ANY PORTION NOT ULTIMATELY JUSTIFIED IN PROCEEDINGS BEFORE THE
COMMISSION.  SEVERAL MONTHS LATER, AFTER HEARINGS, THE COMMISSION
TREATED SEPARATELY THE ISSUE OF THE RATE OF RETURN ON INVESTMENT, FOUND
THAT 7% WAS EXCESSIVE AND THAT 6 1/8% WOULD BE PROPER, AND ORDERED AN
INTERIM RATE REDUCTION AND AN IMMEDIATE REFUND OF THE AMOUNTS COLLECTED
IN EXCESS OF THE RESULTING LOWER RATES.  IT DEFERRED DETERMINATION OF
OTHER ISSUES IN THE PROCEEDING, INCLUDING THE ALLOCATION OF OVER-ALL
COSTS OF THE COMPANY'S SERVICES AMONG ITS 6 RATE ZONES.  HELD:  THIS
WAS AN APPROPRIATE EXERCISE OF THE POWER GRANTED THE COMMISSION BY THE
ACT.  PP. 146-155. 

FEDERAL POWER COMMISSION V. TENNESSEE GAS TRANSMISSION CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE AUTHORITY OF THE FEDERAL POWER COMMISSION
AFTER HEARING TO ORDER AN INTERIM RATE REDUCTION AS WELL AS A REFUND OF
AMOUNTS COLLECTED IN EXCESS THEREOF WHERE A PORTION OF A PREVIOUSLY
FILED INCREASED RATE IS FOUND UNJUSTIFIED BUT THE REMAINDER OF THE
PROCEEDING IS DEFERRED.  RESPONDENT TENNESSEE GAS TRANSMISSION COMPANY,
A NATURAL GAS COMPANY, INCLUDED WITHIN ITS FILED INCREASED RATE
SCHEDULE A 7% OVER-ALL RETURN ON ITS NET INVESTMENT.  IN CONSIDERING
THIS ITEM (FN1) ALONG WITH OTHERS INVOLVED IN THE FILING, INCLUDING THE
ALLOCATION OF THE OVER-ALL COST OF SERVICE AMONG ITS RATE ZONES, THE
COMMISSION CONCLUDED, AFTER A FULL HEARING, THAT 6 1/8% RATHER THAN THE
FILED 7% WOULD BE A JUST AND REASONABLE RETURN.  IT ACCORDINGLY
REQUIRED TENNESSEE GAS TO FILE REDUCED RATES, BASED ON THE LOWER RETURN
FIGURE, RETROACTIVE TO THE END OF A FIVE-MONTH SUSPENSION PERIOD, AND
ORDERED A REFUND OF THE EXCESSIVE AMOUNTS COLLECTED SINCE THAT DATE. 
24 F.P.C. 204.  THE COURT OF APPEALS, 293 F.2D 761, FOUND THAT THE 6
1/8% RETURN WAS JUST AND REASONABLE.  IT HELD, HOWEVER, BY A DIVIDED
VOTE, THAT THE COMMISSION ERRED IN ORDERING AN IMMEDIATE REDUCTION AND
REFUND SINCE IT HAD NOT DETERMINED OTHER ISSUES IN THE PROCEEDING,
PARTICULARLY THAT OF THE PROPER ALLOCATION OF THE OVER-ALL COSTS OF THE
COMPANY'S SERVICES AMONG ITS SIX ZONES.  THE LATTER, THE COURT
REASONED, MIGHT BE DETERMINATIVE OF THE ULTIMATE QUESTION OF WHETHER
THE OVER-ALL FILED RATES IN EACH ZONE WERE JUST AND REASONABLE;
THEREFORE, THE INTERIM ORDER MIGHT RESULT IN IRRETRIEVABLE LOSS TO THE
COMPANY.  THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE
NATURAL GAS ACT LED US TO GRANT CERTIORARI, 368 U.S. 974.  WE HAVE
CONCLUDED THAT THE ISSUANCE OF THE ORDER WAS AN APPROPRIATE EXERCISE OF
THE POWER GRANTED THE COMMISSION BY THE ACT. 

         I. 

TENNESSEE GAS DOES NOT HAVE A SYSTEM-WIDE RATE APPLICABLE TO ALL
SERVICES REGARDLESS OF WHERE PERFORMED.  IT HAS SINCE THE EARLY 1950'S,
WITH COMMISSION APPROVAL, DIVIDED ITS EXTENSIVE PIPELINE SYSTEM INTO
SIX RATE ZONES WITH RATE DIFFERENTIALS.  THE APPROPRIATE ALLOCATION OF
ITS COSTS OF SERVICE AMONG THESE ZONES AND TYPES OF CUSTOMERS WAS NOT
THEN DECIDED BY THE COMMISSION NOR AGREED UPON BETWEEN THE PARTIES, BUT
WAS LEFT FOR FUTURE DECISION.  IT WAS IN THIS POSTURE THAT IN 1959
TENNESSEE GAS, PURSUANT TO SEC. 4(D) OF THE NATURAL GAS ACT, (FN2)
FILED WITH THE COMMISSION PROPOSED INCREASED RATES FOR ITS SIX RATE
ZONES.  THE RATES WERE PREDICATED UPON A COST OF SERVICE WHICH INCLUDED
A CLAIM TO A 7% RATE OF RETURN ON NET INTESTMENT.  AT THE INCEPTION OF
HEARINGS ON THE REASONABLENESS OF THE FILED RATES THE COMMISSION UNDER
ITS SEC. 4(E) (FN3) AUTHORITY, IMPOSED A FIVE-MONTH SUSPENSION PERIOD
ON THE PROPOSED INCREASE AFTER WHICH THE RATES BECAME EFFECTIVE SUBJECT
TO REFUND OF ANY PORTION NOT ULTIMATELY JUSTIFIED BY TENNESSEE GAS IN
THE PROCEEDINGS. 

HEARINGS COMMENCED ON FEBRUARY 2, 1960, AND TENNESSEE GAS PRESENTED
ITS EVIDENCE ON COST OF SERVICE AND RATE OF RETURN.  THE COMMISSION
STAFF PRESENTED EVIDENCE ON THE LATTER ALONE AND THEN PROPOSED THAT THE
RATE OF RETURN ISSUE BE TREATED SEPARATELY FROM COST OF SERVICE AND
ALLOCATION OF RATES AMONG ZONES.  AT THE TIME OF THIS PROPOSAL TO THE
COMMISSION THE ZONE ALLOCATION ISSUE WAS ALSO PENDING IN ANOTHER DOCKET
IN A PROCEEDING INVOLVING TENNESSEE GAS.  BY MOTION TENNESSEE GAS
REQUESTED THAT THE ALLOCATION ISSUE BE DECIDED SIMULTANEOUSLY WITH THAT
INVOLVING THE RATE OF RETURN.  ON AUGUST 5, 1960, THIS MOTION WAS
DENIED, AND FOUR DAYS LATER THE COMMISSION ISSUED THE INTERIM ORDER
UNDER ATTACK HERE.  IT FOUND THAT A 7% RETURN WAS EXCESSIVE AND THAT A
6 1/8% RATE OF RETURN WAS JUST AND REASONABLE.  THIS FINDING WAS BASED
ON THE COMMISSION'S DETERMINATION THAT TENNESSEE GAS HAD FAILED TO
JUSTIFY A RATE OF RETURN GREATER THAN 6 1/8%.  ACCORDINGLY, THE
COMMISSION ISSUED AN INTERIM ORDER WHICH DISALLOWED THE 7% RETURN,
REQUIRED TENNESSEE GAS TO FILE APPROPRIATE LOWER RATES RETROACTIVELY TO
THE EFFECTIVE DATE OF THE INCREASED RATES AND ORDERED REFUNDS OF THE
DIFFERENCES COLLECTED SINCE THAT TIME.  TENNESSEE GAS DOES NOT CONTEST
THE COMMISSION'S DETERMINATION THAT A 6 1/8% RETURN ON ITS NET
INVESTMENT IS JUST AND REASONABLE.  IT DOES CONTEND THAT TO REQUIRE THE
REFUNDS PRIOR TO A DETERMINATION OF COST ALLOCATION AMONG ITS ZONES OF
OPERATION MIGHT RESULT IN ITS BEING UNABLE TO REALIZE THIS RETURN
DURING THE REFUND PERIOD.  IN THIS CONNECTION IT POINTS OUT THAT THE
RATES AS FINALLY DETERMINED MIGHT, IN SOME OF ITS ZONES, BE ABOVE THE
RATES COLLECTED LESS THE REFUND ORDERED.  THIS WOULD RESULT IN
TENNESSEE GAS NOT BEING ABLE TO RECOUP A RETURN OF 6 1/8% SINCE IT
WOULD BE UNABLE TO COLLECT RETROACTIVELY THE HIGHER RATES FOUND
APPROPRIATE IN THOSE ZONES WHILE IT WOULD BE REQUIRED TO MAKE FULL
REFUNDS IN THE REMAINING LOWER RATE ZONES. 

THE COURT OF APPEALS, IN SETTING ASIDE THE COMMISSION'S ORDER OF
IMMEDIATE REDUCTION AND REFUND, FOUND THAT IT WAS UNREASONABLE AND AN
ABUSE OF DISCRETION TO THUS SPLINTER THE ISSUES, ESPECIALLY SINCE THE
COST ALLOCATION AMONG ZONES ISSUE WAS DEEMED "RIPE FOR DECISION," (FN4)
AND A RULING ON IT WAS AN "ESSENTIAL ELEMENT IN DETERMINING WHETHER THE
FILED RATES ARE EXCESSIVE."  THE COURT ALSO QUESTIONED WHETHER A
HEARING CONFINED TO THE ISSUE OF RATE OF RETURN WAS SUCH A "FULL
HEARING" AS SEC. 4(E) DEMANDS PREREQUISITE TO A RATE-CHANGE AND REFUND
ORDER. 

THE FEDERAL POWER COMMISSION AND THE CITY OF PITTSBURGH, WHICH IS
ACTING IN BEHALF OF RESIDENT CONSUMERS OF NATURAL GAS, ARE HERE IN
SEPARATE CASES.  SINCE THEY RAISE IDENTICAL FACTUAL AND LEGAL ISSUES,
WE CONSIDER THE TWO CASES TOGETHER.  (FN5)

                                             II. 

AS ALL OF THE RESPONDENTS ADMIT, THERE IS "NO QUESTION" AS TO THE
COMMISSION'S AUTHORITY TO ISSUE INTERIM RATE ORDERS.  INDEED, SUCH
GENERAL AUTHORITY IS WELL ESTABLISHED BY CASES IN THIS COURT, FEDERAL
POWER COMM'N V. NATURAL GAS PIPELINE CO., 315 U.S. 575 (1942); NEW
ENGLAND DIVISIONS CASE, 261 U.S. 184 (1923), AS WELL AS IN THE COURTS
OF APPEALS.  PANHANDLE EASTERN PIPE LINE CO. V. FEDERAL POWER COMM'N,
236 F.2D 606 (C.A. 3D CIR. 1956); STATE CORPORATION COMM'N OF KANSAS V.
FEDERAL POWER COMM'N, 206 F.2D 690 (C.A. 8TH CIR. 1953).  IT IS TRUE
THAT NONE OF THESE CASES INVOLVED AN UNDECIDED COST ALLOCATION ISSUE
APPLICABLE RETROACTIVELY.  HOWEVER, IN NATURAL GAS PIPELINE CO. THIS
COURT TOOK PAINS TO POINT OUT THE FACT THAT "ESTABLISHMENT OF A RATE
FOR A REGULATED INDUSTRY OFTEN INVOLVES TWO STEPS OF DIFFERENT
CHARACTER, ONE OF WHICH MAY APPROPRIATELY PRECEDE THE OTHER."  315
U.S., AT P. 584.  SIGNIFICANTLY, THAT CASE ALSO INVOLVED THE ISSUE OF A
FAIR RATE OF RETURN AND "THE ADJUSTMENT OF A RATE SCHEDULE  ...  SO AS
TO ELIMINATE DISCRIMINATIONS AND UNFAIRNESS FROM ITS DETAILS."  IBID.
AND THE COURT SPECIFICALLY FOUND POWER TO ORDER A DECREASE IN RATES
"WITHOUT ESTABLISHING A SPECIFIC SCHEDULE."  IT DECLARED THAT THE
PROVISO OF SEC. 5 (FN6) AUTHORIZED THE COMMISSION TO "ORDER A DECREASE
WHERE EXISTING RATES ARE UNJUST  ...  OR ARE NOT THE LOWEST REASONABLE
RATES."  FINALLY, THE COURT CONCLUDED THAT SEC. 16 (FN7) PLACED
DISCRETION IN THE COMMISSION TO "ISSUE  ...  SUCH ORDERS  ... AS IT MAY
FIND NECESSARY OR APPROPRIATE TO CARRY OUT THE PROVISIONS OF THIS
CHAPTER."  HERE THE COMMISSION TOOK SIMILAR ACTION DIRECTING TENNESSEE
GAS TO FILE A NEW SCHEDULE WHICH WOULD REFLECT THE PRESCRIBED 7/8%
REDUCTION IN THE RATE OF RETURN AND, IN ADDITION, TO REFUND UNDER SEC.
4(E) THE AMOUNTS COLLECTED IN EXCESS OF THE LOWER, SUBSTITUTED CHARGES
REFLECTING THE LAWFUL RATE OF RETURN.  THE FACT THAT THE NATURAL GAS
PIPELINE CO. CASE WAS INITIATED UNDER SEC. 5 OF THE ACT AND THE REFUND
PROVISIONS OF SEC. 4(E) WERE NOT AVAILABLE WAS, IN OUR OPINION, OF NO
CONSEQUENCE SINCE THE HAZARD OF NOT MAKING A PROFIT REMAINS ON THE
COMPANY IN EACH INSTANCE.  "DISCRIMINATIONS AND UNFAIRNESS" IF LATER
FOUND PRESENT IN NATURAL GAS PIPELINE'S SCHEDULE MIGHT HAVE CAUSED IT
LOSSES JUST AS THE REFUNDS MIGHT HERE.  IN ADDITION, AN ANALYSIS OF THE
POLICY OF THE ACT CLEARLY INDICATES THAT A NATURAL GAS COMPANY
INITIATING AN INCREASE IN RATES UNDER SEC. 4(D) ASSUMES THE HAZARDS
INVOLVED IN THAT PROCEDURE.  IT BEARS THE BURDEN OF ESTABLISHING ITS
RATE SCHEDULE AS BEING "JUST AND REASONABLE."  IN ADDITION, THE COMPANY
CAN NEVER RECOUP THE INCOME LOST WHEN THE FIVE-MONTH SUSPENSION POWER
OF THE COMMISSION IS EXERCISED UNDER SEC. 4(E).  THE COMPANY IS ALSO
REQUIRED TO REFUND ANY SUMS THEREAFTER COLLECTED SHOULD IT NOT SUSTAIN
ITS BURDEN OF PROVING THE REASONABLENESS OF AN INCREASED RATE, AND IT
MAY SUFFER FURTHER LOSS WHEN THE COMMISSION UPON A FINDING OF
EXCESSIVENESS MAKES ADJUSTMENTS IN THE RATE DETAIL OF THE COMPANY'S
FILING.  IN THIS LATTER RESPECT A RATE FOR ONE CLASS OR ZONE OF
CUSTOMERS MAY BE FOUND BY THE COMMISSION TO BE TOO LOW, BUT THE COMPANY
CANNOT RECOUP ITS LOSSES BY MAKING RETROACTIVE THE HIGHER RATE
SUBSEQUENTLY ALLOWED; ON THE OTHER HAND, WHEN ANOTHER CLASS OR ZONE OF
CUSTOMERS IS FOUND TO BE SUBJECTED TO EXCESSIVE RATES AND A LOWER RATE
IS ORDERED, THE COMPANY MUST MAKE REFUNDS TO THEM.  THE COMPANY'S
LOSSES IN THE FIRST INSTANCE DO NOT JUSTIFY ITS ILLEGAL GAIN IN THE
LATTER.  SUCH SITUATIONS ARE ENTIRELY CONSISTENT WITH THE POLICY OF THE
ACT AND, WE ARE TOLD, OCCUR WITH FREQUENCY.  THE COMPANY HAVING
INITIALLY FILED THE RATES AND EITHER COLLECTED AN ILLEGAL RETURN OR
FAILED TO COLLECT A SUFFICIENT ONE MUST, UNDER THE THEORY OF THE ACT,
SHOULDER THE HAZARDS INCIDENT TO ITS ACTION INCLUDING NOT ONLY THE
REFUND OF ANY ILLEGAL GAIN BUT ALSO ITS LOSSES WHERE ITS FILED RATE IS
FOUND TO BE INADEQUATE. 

NOR DO WE SHARE THE DOUBTS OF THE COURT OF APPEALS CONCERNING THE
PRACTICALITIES OF THE TWO-STEP PROCEDURE INVOKED BY THE COMMISSION.  WE
CANNOT SEE HOW THE SEVERANCE OF THE TWO ISSUES LEFT TENNESSEE GAS
WITHOUT GUIDANCE AS TO "THE EXTENT TO WHICH INDIVIDUAL RATES SHOULD BE
REDUCED, OR TO WHOM REFUNDS ARE DUE."  293 F.2D, AT P. 767.  THE
COMMISSION HAS FOUND THAT THE REVISED OVER-ALL RATE SCHEDULE SHOULD
HAVE BEEN CALCULATED ON A RATE OF RETURN OF 6 1/8% RATHER THAN 7%.  AS
A RESULT THE OVER-ALL RATE WAS TO THAT EXTENT UNLAWFUL AND REFUNDS WERE
DUE ACROSS THE BOARD TO ALL CUSTOMERS IN THE TENNESSEE GAS SYSTEM.  THE
INTERIM ORDER DIRECTED THEIR PAYMENT.  TRUE, THE OLD AND UNDECIDED ZONE
RATE STRUCTURE UNDER ATTACK AS DISCRIMINATORY WAS LEFT IN EFFECT BY
THIS ORDER AND SURVIVES A BIT LONGER.  BUT THE PROBABILITIES PRESENT IN
THAT SITUATION ARE MORE THAN OFFSET BY THE CERTAINTY OF THE
COMMISSION'S ACTIONS IN FINDING THE 7% RATE UNLAWFUL, FIXING THE 6 1/8%
LAWFUL RETURN AND GIVING TIMELY EFFECTIVENESS, INCLUDING REFUNDS, TO
THE LATTER.  PERHAPS DISCRIMINATION MAY LATER BE FOUND IN THE
ALLOCATION OF COST BETWEEN SOME ZONES, BUT IT WOULD AFFECT ONLY THE
CUSTOMERS IN THOSE ZONES WHILE THE POSTPONEMENT OF THE INTERIM ORDER
HERE WOULD BE OF CONTINUING DETRIMENT TO ALL CUSTOMERS IN ALL ZONES. 
MOREOVER, IF DECREASED RATES AND RESULTANT REFUNDS ARE LATER FOUND TO
BE NECESSARY IN THOSE ISOLATED INSTANCES THE COMMISSION HAS THE POWER
TO SO ORDER UPON SUCH FINDING AND THE INDIVIDUAL LAWFUL RATES COULD AT
THAT TIME BE FIXED. 

MOREOVER, THE USE OF THE INTERIM ORDER TECHNIQUE IS IN KEEPING WITH
THE PURPOSES OF THE ACT "TO PROTECT CONSUMERS AGAINST EXPLOITATION AT
THE HANDS OF NATURAL GAS COMPANIES  ...  ," FEDERAL POWER COMM'N V.
HOPE NATURAL GAS CO., 320 U.S. 591, 610 (1944), AND "TO UNDERWRITE JUST
AND REASONABLE RATES TO THE CONSUMERS OF NATURAL GAS  ...  ."  ATLANTIC
REFINING CO. V. PUBLIC SERVICE COMM'N OF NEW YORK, 360 U.S. 378, 388
(1959).  FACED WITH THE FINDING THAT THE RATE OF RETURN WAS EXCESSIVE,
THE COMMISSION ACTED PROPERLY WITHIN ITS STATUTORY POWER IN ISSUING THE
INTERIM ORDER OF REDUCTION AND REFUND, SINCE THE PURPOSE OF THE ACT IS
"TO AFFORD CONSUMERS A COMPLETE, PERMANENT AND EFFECTIVE BOND OF
PROTECTION FROM EXCESSIVE RATES AND CHARGES  ...  ."  ID., AT P. 388. 
TO DO OTHERWISE WOULD HAVE PERMITTED TENNESSEE GAS TO COLLECT THE
ILLEGAL RATE FOR AN ADDITIONAL 18 MONTHS (FN8) AT A COST OF OVER
$16,500,000 TO CONSUMERS.  TRUE, THE EXACTION WOULD HAVE BEEN SUBJECT
TO REFUND, BUT EXPERIENCE HAS SHOWN THIS TO BE SOMEWHAT ILLUSORY IN
VIEW OF THE TRICKLING DOWN PROCESS NECESSARY TO BE FOLLOWED, THE
INCIDENTAL COST OF WHICH IS OFTEN BORNE BY THE CONSUMER, AND IN VIEW OF
THE TRANSIENT NATURE OF OUR SOCIETY WHICH OFTEN PREVENTS REFUNDS FROM
REACHING THOSE TO WHOM THEY ARE DUE.  (FN9)  IT IS, THEREFORE, THE DUTY
OF THE COMMISSION TO LOOK AT "THE BACKDROP OF THE PRACTICAL
CONSEQUENCES (RESULTING)  ...  AND THE PURPOSES OF THE ACT," SUNRAY MID
CONTINENT OIL CO. V. FEDERAL POWER COMM'N, 364 U.S. 137, 147 (1960), IN
EXERCISING ITS DISCRETION UNDER SEC. 16 TO ISSUE INTERIM ORDERS AND,
WHERE REFUNDS ARE FOUND DUE, TO DIRECT THEIR PAYMENT AT THE EARLIEST
POSSIBLE MOMENT CONSISTENT WITH DUE PROCESS.  IN SO DOING UNDER THE
CIRCUMSTANCES HERE THE COMMISSION'S ULTIMATE ACTION IN DIRECTING THE
SEVERANCE AND IN ENTERING THE INTERIM ORDER WAS NOT ONLY ENTIRELY
APPROPRIATE BUT IN THE BEST TRADITION OF EFFECTIVE ADMINISTRATIVE
PRACTICE.    THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED INSOFAR
AS IT SET ASIDE THE INTERIM ORDER; OTHERWISE IT IS AFFIRMED.  REVERSED
IN PART. 

FN1  ON MOTION OF THE COMMISSION'S STAFF COUNSEL, THE PROCEEDING WAS
DIVIDED INTO TWO PHASES:  (1) DETERMINATION OF RATE OF RETURN; (2)
DETERMINATION OF OTHER FACTORS, INCLUDING ALLOCATION OF RATES AMONG
ZONES.    FN2  15 U.S.C. SEC. 717CD): 

"UNLESS THE COMMISSION OTHERWISE ORDERS, NO CHANGE SHALL BE MADE BY
ANY NATURAL-GAS COMPANY IN ANY SUCH RATE, CHARGE, CLASSIFICATION, OR
SERVICE, OR IN ANY RULE, REGULATION, OR CONTRACT RELATING THERETO,
EXCEPT AFTER THIRTY DAYS' NOTICE TO THE COMMISSION AND TO THE PUBLIC. 
SUCH NOTICE SHALL BE GIVEN BY FILING WITH THE COMMISSION AND KEEPING
OPEN FOR PUBLIC INSPECTION NEW SCHEDULES STATING PLAINLY THE CHANGE OR
CHANGES TO BE MADE IN THE SCHEDULE OR SCHEDULES THEN IN FORCE AND THE
TIME WHEN THE CHANGE OR CHANGES WILL GO INTO EFFECT.  THE COMMISSION,
FOR GOOD CAUSE SHOWN, MAY ALLOW CHANGES TO TAKE EFFECT WITHOUT
REQUIRING THE THIRTY DAYS' NOTICE HEREIN PROVIDED FOR BY AN ORDER
SPECIFYING THE CHANGES SO TO BE MADE AND THE TIME WHEN THEY SHALL TAKE
EFFECT AND THE MANNER IN WHICH THEY SHALL BE FILED AND PUBLISHED." 

FN3  15 U.S.C. SEC. 717CE): 

"WHENEVER ANY SUCH NEW SCHEDULE IS FILED THE COMMISSION SHALL HAVE
AUTHORITY  ...  TO ENTER UPON A HEARING CONCERNING THE LAWFULNESS OF
SUCH RATE, CHARGE, CLASSIFICATION, OR SERVICE; AND, PENDING SUCH
HEARING AND THE DECISION THEREON, THE COMMISSION, UPON FILING WITH SUCH
SCHEDULES AND DELIVERING TO THE NATURAL-GAS COMPANY AFFECTED THEREBY A
STATEMENT IN WRITING OF ITS REASONS FOR SUCH SUSPENSION, MAY SUSPEND
THE OPERATION OF SUCH SCHEDULE AND DEFER THE USE OF SUCH RATE, CHARGE,
CLASSIFICATION, OR SERVICE, BUT NOT FOR A LONGER PERIOD THAN FIVE
MONTHS BEYOND THE TIME WHEN IT WOULD OTHERWISE GO INTO EFFECT  ...  ." 

FN4  IN THIS CONNECTION WE NOTE THE COMMISSION FOUND: 

"HEARINGS ON THE COST ALLOCATION ISSUE, SEVERED FROM THE OTHER ISSUES
IN DOCKET NO. G-11980 BY COMMISSION ORDER, WERE CONCLUDED ON DECEMBER
17, 1959, AND BRIEFING THEREON WAS CONCLUDED ON APRIL 11, 1960. 
TENNESSEE'S MOTION FOR OMISSION OF THE INTERMEDIATE DECISION ON THAT
ISSUE IS NEITHER TIMELY NOR CONCURRED IN BY THE OTHER PARTIES TO THE
PROCEEDING.  FURTHER, WHILE WE RECOGNIZE THAT AN EARLY DECISION ON THAT
ISSUE IS DESIRABLE, THE NATURE AND CONSIDERABLE SIZE OF THE RECORD,
INDICATES THAT IT WOULD BE MORE PRACTICABLE IN THE INTERESTS OF AN
EARLY DECISION AND IN THE INTEREST OF EFFECTIVE ADMINISTRATION OF THE
NATURAL GAS ACT, THAT THE PRESIDING EXAMINER, WHO HAS AVAILABLE
KNOWLEDGE OF THAT RECORD, SHOULD PROCEED WITH CONSIDERATION OF THE
EVIDENCE AND RENDER DECISION THEREON."  UNREPORTED ORDER OF THE
COMMISSION ISSUED AUG. 5, 1960. 

FN5  RESPONDENTS COLUMBIA GAS COMPANIES RAISE A SEPARATE POINT AS TO
THEIR NOT BEING PERMITTED TO OFFER EVIDENCE IN THIS CASE AS TO COST
ALLOCATION.  WE NOTE THAT THEY HAD A FULL OPPORTUNITY TO DO SO IN
ANOTHER PROCEEDING INVOLVING THE SAME PARTIES.  THIS CONTENTION,
THEREFORE, HAS NO MERIT.  THIS HEARING, INSOFAR AS IT DETERMINED THAT
THE RATE OF RETURN WAS UNREASONABLE, WAS TO THAT EXTENT AND FOR THE
PURPOSE OF THE INTERIM ORDER THE "FULL HEARING" CONTEMPLATED BY THE
STATUTE, EVEN THOUGH IT DID NOT AT THAT TIME DISPOSE OF THE ENTIRE
CASE. 

FN6  15 U.S.C. SEC. 717DA): 

"  ... PROVIDED, HOWEVER, THAT THE COMMISSION SHALL HAVE NO POWER TO
ORDER ANY INCREASE IN ANY RATE CONTAINED IN THE CURRENTLY EFFECTIVE
SCHEDULE OF SUCH NATURAL GAS COMPANY ON FILE WITH THE COMMISSION,
UNLESS SUCH INCREASE IS IN ACCORDANCE WITH A NEW SCHEDULE FILED BY SUCH
NATURAL GAS COMPANY; BUT THE COMMISSION MAY ORDER A DECREASE WHERE
EXISTING RATES ARE UNJUST, UNDULY DISCRIMINATORY, PREFERENTIAL,
OTHERWISE UNLAWFUL, OR ARE NOT THE LOWEST REASONABLE RATES." 

FN7  15 U.S.C. SEC. 717O: 

"THE COMMISSION SHALL HAVE POWER TO PERFORM ANY AND ALL ACTS, AND TO
PRESCRIBE, ISSUE, MAKE, AMEND, AND RESCIND SUCH ORDERS, RULES, AND
REGULATIONS AS IT MAY FIND NECESSARY OR APPROPRIATE TO CARRY OUT THE
PROVISIONS OF THIS CHAPTER.  AMONG OTHER THINGS, SUCH RULES AND
REGULATIONS MAY DEFINE ACCOUNTING, TECHNICAL, AND TRADE TERMS USED IN
THIS CHAPTER; AND MAY PRESCRIBE THE FORM OR FORMS OF ALL STATEMENTS,
DECLARATIONS, APPLICATIONS, AND REPORTS TO BE FILED WITH THE
COMMISSION, THE INFORMATION WHICH THEY SHALL CONTAIN, AND THE TIME
WITHIN WHICH THEY SHALL BE FILED.  UNLESS A DIFFERENT DATE IS SPECIFIED
THEREIN, RULES AND REGULATIONS OF THE COMMISSION SHALL BE EFFECTIVE
THIRTY DAYS AFTER PUBLICATION IN THE MANNER WHICH THE COMMISSION SHALL
PRESCRIBE.  ORDERS OF THE COMMISSION SHALL BE EFFECTIVE ON THE DATE AND
IN THE MANNER WHICH THE COMMISSION SHALL PRESCRIBE.  FOR THE PURPOSES
OF ITS RULES AND REGULATIONS, THE COMMISSION MAY CLASSIFY PERSONS AND
MATTERS WITHIN ITS JURISDICTION AND PRESCRIBE DIFFERENT REQUIREMENTS
FOR DIFFERENT CLASSES OF PERSONS OR MATTERS.  ALL RULES AND REGULATIONS
OF THE COMMISSION SHALL BE FILED WITH ITS SECRETARY AND SHALL BE KEPT
OPEN IN CONVENIENT FORM FOR PUBLIC INSPECTION AND EXAMINATION DURING
REASONABLE BUSINESS HOURS.  (JUNE 21, 1938, CH. 556, SEC. 16, 52 STAT.
830.)" 

FN8  THE COST ALLOCATION ISSUE WAS DECIDED 18 MONTHS FOLLOWING THE
COMMISSION'S DECISION ON RATE OF RETURN, AND SUBSTANTIAL ISSUES ON THE
COST-OF-SERVICE QUESTION ARE STILL UNRESOLVED.  IF THE INTERIM ORDER
HAD NOT BEEN ENTERED THE ILLEGAL RATE WOULD HAVE BEEN IN EFFECT 22
MONTHS, WITH AN EXCESSIVE RETURN OF SOME $20,000,000. 

FN9  IN SOME OF THE STATES REFUNDS DUE UNFOUND FORMER CUSTOMERS
REMAIN WITH THE COMPANY IN SEPARATE ACCOUNTS SUBJECT TO FUTURE ORDER; A
LARGER GROUP ESCHEATS SUCH AMOUNTS TO THE STATE; OTHERS PERMIT THEM TO
BE USED IN DEFRAYING THE COST OF THE REFUND; A FOURTH GROUP HAS NO
PROBLEM REGARDING TRANSIENTS SINCE REFUNDS ARE PRORATED AMONG COMPANY
CUSTOMERS AND CREDITED ON FUTURE BILLS; AND ONE STATE INCLUDES ALL
REFUNDS IN FUTURE RATE REDUCTIONS.  WHILE REFUNDS ARE PERMISSIBLE IN
CASH, MOST OF THE STATES APPROVE PLANS WHEREBY CREDITS ARE PERMITTED ON
FUTURE GAS BILLS IN PROPORTION TO AVERAGE CONSUMPTION. 
..END :













BURLINGTON TRUCK LINES, INC. V. UNITED STATES 371 U.S. 156 


NO. 27.  ARGUED OCTOBER 15-16, 1962.  - DECIDED DECEMBER 3, 1962.* - 194
F. SUPP. 31, REVERSED AND CAUSE REMANDED. 

*TOGETHER WITH NO. 28, GENERAL DRIVERS & HELPERS UNION, LOCAL 554,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA, V. UNITED STATES ET AL., ALSO ON APPEAL FROM THE
SAME COURT. 


BECAUSE OF A LABOR DISPUTE, ARRANGEMENTS BETWEEN NONUNIONIZED
SHORTLINE MOTOR CARRIERS IN NEBRASKA FOR THE INTERCHANGE OF TRAFFIC
WITH UNIONIZED TRUNK-LINE MOTOR CARRIERS FOR MOVEMENT TO AND FROM
POINTS BEYOND NEBRASKA WERE DISRUPTED BY A UNION-INDUCED BOYCOTT OF
SUCH TRAFFIC UNDER "HOT CARGO" CLAUSES IN CONTRACTS BETWEEN THE UNIONS
AND THE TRUNK-LINE CARRIERS WHICH PROTECTED THE EMPLOYEES' RIGHT TO
REFUSE TO HANDLE "UNFAIR GOODS."  TO MEET THIS SITUATION, THE SHORT
LINE CARRIERS ORGANIZED A CORPORATION WHICH APPLIED TO THE INTERSTATE
COMMERCE COMMISSION UNDER SEC. 207(A) OF THE INTERSTATE COMMERCE ACT
FOR AUTHORITY TO ACT AS AN INTERSTATE MOTOR CARRIER.  THE COMMISSION
FOUND THAT THE UNION-INDUCED BOYCOTT OF THE SHORT-LINE CARRIERS BY THE
TRUNK-LINE CARRIERS HAD RESULTED IN SERIOUS INADEQUACIES IN THE
SERVICES AVAILABLE TO A LARGE SECTION OF THE PUBLIC, AND IT GRANTED THE
APPLICANT PART OF THE OPERATING AUTHORITY REQUESTED.  IT MADE NO
FINDINGS TO JUSTIFY THE CHOICE OF THIS REMEDY INSTEAD OF OTHER FORMS OF
RELIEF UNDER OTHER SECTIONS OF THE ACT.  FOUR MONTHS LATER, CONGRESS
ENACTED THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959,
WHICH AT LEAST RAISED SERIOUS QUESTIONS AS TO THE VALIDITY OF THE UNION
INDUCED BOYCOTT.  SUBSEQUENTLY, THE DISTRICT COURT SUSTAINED THE
COMMISSION'S ORDER AS WITHIN THE SCOPE OF ITS AUTHORITY, BASED ON
ADEQUATE FINDINGS AND SUPPORTED BY SUBSTANTIAL EVIDENCE.  HELD: THE
JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT
WITH INSTRUCTIONS TO SET ASIDE THE COMMISSION'S ORDER AND REMAND THE
CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS.  PP. 158-174. 

1.  THE COMMISSION'S ORDER MUST BE SET ASIDE AS AN IMPROVIDENT
EXERCISE OF ITS DISCRETION AS TO THE CHOICE OF REMEDIES.  PP. 165-170. 

(A)  WHEN, AS HERE, THE PARTICULAR DEVIATIONS FROM AN OTHERWISE
COMPLETELY ADEQUATE SERVICE (WHICH HAS ECONOMIC NEED FOR THE TRAFFIC)
CONSIST SOLELY OF ILLEGAL AND DISCRIMINATORY REFUSALS TO ACCEPT OR
DELIVER TRAFFIC FROM OR TO PARTICULAR CARRIERS OR SHIPPERS, THE POWERS
OF THE COMMISSION UNDER SECS. 204, 212 AND 216 BEAR HEAVILY ON THE
PROPRIETY OF RELIEF UNDER SEC. 207.  PP. 165-166. 

(B)  IN SUCH A CASE, THE CHOICE OF THE CERTIFICATION REMEDY MAY NOT
BE AUTOMATIC; IT MUST BE RATIONAL AND BASED UPON CONSCIOUS CHOICE THAT,
IN THE CIRCUMSTANCES, THE PUBLIC INTEREST IN "ADEQUATE, ECONOMICAL, AND
EFFICIENT SERVICE" OUTBALANCES WHATEVER PUBLIC INTEREST THERE IS IN
PROTECTING THE REVENUES OF EXISTING CARRIERS, IN ORDER TO "FOSTER SOUND
ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL CARRIERS,"
AND THE OTHER OPPOSING INTERESTS.  PP. 166-167. 

(C) THE COMMISSION MADE NO FINDINGS OR ANALYSIS TO JUSTIFY ITS CHOICE
OF REMEDIES AND GAVE NO INDICATION OF THE BASIS ON WHICH IT EXERCISED
ITS EXPERT DISCRETION.  SUCH ADJUDICATORY PRACTICE IS NOT ACCEPTABLE TO
THIS COURT NOR PERMISSILBE UNDER THE ADMINISTRATIVE PROCEDURE ACT.  PP.
167-168. 

(D)  THE COMMISSION ERRED IN DISREGARDING THE SUGGESTION THAT THE
REFUSALS OF THE TRUNK-LINE CARRIERS TO SERVE COULD BE TERMINATED
THROUGH COMPLAINT PROCEDURES, THUS OBVIATING THE NEED FOR ADDITIONAL
SERVICE; AND THAT ERROR CANNOT NOW BE JUSTIFIED ON THE GROUND THAT A
CEASE-AND-DESIST ORDER WOULD HAVE BEEN INEFFECTIVE, SINCE THE
COMMISSION MADE NO FINDINGS TO SUPPORT SUCH A CONCLUSION.  SECURITIES &
EXCHANGE COMM'N V. CHENERY CORP., 332 U.S. 194.  PP. 168-169. 

(E)  MOREOVER, THERE WAS NOT SUBSTANTIAL EVIDENCE OF RECORD UPON
WHICH TO BASE A FINDING THAT COMPLAINT PROCEDURES WOULD HAVE BEEN
INEFFECTIVE, AND THERE WAS EVERY INDICATION AT THE TIME THAT SUCH
PROCEDURES WOULD HAVE BEEN EFFECTIVE UNDER THE LAW AS IT THEN STOOD. 
PP. 169-170. 

2.  IN VIEW OF THE ENACTMENT OF THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959, FOUR MONTHS AFTER THE COMMISSION'S DECISION AND
OVER A YEAR BEFORE THE DISTRICT COURT HANDED DOWN ITS DECISION, THE
DISTRICT COURT SHOULD NOT HAVE AFFIRMED THE COMMISSION'S ORDER; IN THE
EXERCISE OF ITS DISCRETION, IT SHOULD HAVE VACATED THE ORDER AND
REMANDED THE CASE TO THE COMMISSION FOR FURTHER CONSIDERATION IN THE
LIGHT OF CHANGED CIRCUMSTANCES.  PP. 171-172. 

3. UPON REMAND, THE COMMISSION SHOULD BE PARTICULARLY CAREFUL IN ITS
CHOICE OF REMEDY (IF ANY STILL BE NEEDED), BECAUSE OF THE POSSIBLE
EFFECTS OF ITS DECISION ON THE FUNCTIONING OF THE NATIONAL LABOR
RELATIONS POLICY.  PP. 172-174. 

BURLINGTON TRUCK LINES, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THESE ARE DIRECT APPEALS UNDER 28 U.S.C. SEC. 1253 FROM THE JUDGMENT
OF A THREE-JUDGE DISTRICT COURT, 194 F. SUPP. 31 (S.D. ILL.), WHICH
UPHELD AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, 79 M.C.C. 599,
GRANTING A MOTOR COMMON CARRIER APPLICATION.  THIS COURT NOTED PROBABLE
JURISDICTION BECAUSE OF IMPORTANT QUESTIONS RAISED AS TO THE
RELATIONSHIP AND INTERPLAY BETWEEN REMEDIES AVAILABLE UNDER THE
INTERSTATE COMMERCE ACT AND UNDER THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT.  368 U.S. 951. 

APPELLEE NEBRASKA SHORT LINE CARRIERS, INC., IS A NEBRASKA
CORPORATION, ORGANIZED IN JUNE 1956.  ALL OF ITS STOCK IS OWNED BY 12
MOTOR CARRIERS SERVING EASTERN AND CENTRAL NEBRASKA AND INTERCHANGING
INTERSTATE TRAFFIC AT OMAHA AND OTHER GATEWAY POINTS WITH OVER 20
LARGER TRUNK-LINE CARRIERS, AMONG WHOM ARE THE APPELLANT CARRIERS, WITH
WHOM THROUGH-ROUTE, JOINT-RATE, INTERLINE ARRANGEMENTS HAVE BEEN
ESTABLISHED.  SOME OF THE STOCKHOLDER CARRIERS SERVE NEBRASKA
COMMUNITIES WITHOUT OTHER MOTOR CARRIER OR RAIL SERVICE. 

FOR SOME TIME PRIOR TO MAY 1956, THE STOCKHOLDER CARRIERS HAD
RESISTED EFFORTS BY THE TEAMSTERS UNION TO UNIONIZE THEIR OPERATIONS. 
EVENTUALLY, THE UNION SOUGHT TO BRING ECONOMIC PRESSURE TO BEAR UPON
THE STOCKHOLDER CARRIERS BY A SECONDARY BOYCOTT AGAINST THEIR TRAFFIC
THROUGH THE LARGER, UNIONIZED, TRUNK-LINE CARRIERS UPON WHOM THE
STOCKHOLDER CARRIERS WERE DEPENDENT FOR INTERCHANGING TRAFFIC TO AND
FROM POINTS BEYOND NEBRASKA.  THE COLLECTIVE BARGAINING CONTRACT
BETWEEN THE TRUNK-LINE CARRIERS AND THE UNION CONTAINED PROTECTION OF
RIGHTS OR SO-CALLED "HOT CARGO" CLAUSES WHICH RESERVED TO THE UNION AND
ITS MEMBERS "THE RIGHT TO REFUSE TO HANDLE GOODS FROM OR TO ANY FIRM OR
TRUCK" INVOLVED IN ANY CONTROVERSY WITH THE UNION AND PROVIDED THAT IT
SHOULD NOT BE A CAUSE FOR DISCHARGE IF AN EMPLOYEE OF THE CARRIER
REFUSED TO HANDLE "UNFAIR" GOODS.  (FN1) 

IN MAY 1956, SOME OF THE STOCKHOLDER CARRIERS BEGAN EXPERIENCING
DIFFICULTIES IN RECEIVING AND DELIVERING FREIGHT FROM AND TO MANY OF
THEIR NORMAL AND LOGICAL CONNECTIONS AT OMAHA AND, TO SOME EXTENT, AT
SIOUX CITY, LINCOLN, AND GRAND ISLAND.  THE DIFFICULTY CONSISTED
PRIMARILY OF THE REFUSAL ON THE PART OF MANY OF THE LARGER CARRIERS TO
ACCEPT INTERLINE TRAFFIC TENDERED TO THEM BY THE STOCKHOLDER CARRIERS
AND THE REFUSAL TO TURN OVER TO THEM INBOUND TRAFFIC ROUTED OVER THEIR
LINES OR NORMALLY TURNED OVER TO THEM FOR DELIVERY TO ULTIMATE
DESTINATIONS IN NEBRASKA.  THE STOCKHOLDER CARRIERS, SHIPPERS, AND
CONSIGNEES THUS EXPERIENCED CONSIDERABLE DELAY, INCONVENIENCE, AND
UNFORESEEN EXPENSE IN THE MOVEMENT OF TRAFFIC TO AND FROM INTERIOR
NEBRASKA POINTS.  AT THE SAME TIME, HOWEVER, SOME OF THE LARGER
INTERLINING CARRIERS, PARTICULARLY APPELLANTS BURLINGTON TRUCK LINES,
INC., AND SANTA FE TRAIL TRANSPORTATION COMPANY, GENERALLY MAINTAINED
NORMAL INTERLINE RELATIONSHIPS WITH THE STOCKHOLDER CARRIERS. 

THE STOCKHOLDER CARRIERS THEREUPON ORGANIZED SHORT LINE AND ON JUNE
22, 1956, SHORT LINE FILED AN APPLICATION WITH THE INTERSTATE COMMERCE
COMMISSION FOR COMMON CARRIER AUTHORITY TO TRANSPORT COMMODITIES ON A
REGULARLY SCHEDULED BASIS BETWEEN CERTAIN NEBRASKA AND IOWA POINTS AND
POINTS IN OTHER STATES.  A FURTHER APPLICATION FOR OPERATING AUTHORITY
OVER IRREGULAR ROUTES BETWEEN OMAHA AND POINTS IN 32 DIFFERENT STATES
WAS FILED SIX MONTHS LATER.  THE APPLICATIONS WERE ASSIGNED TO TWO
DIFFERENT EXAMINERS, EACH OF WHOM RECOMMENDED THAT THE APPLICATION
BEFORE HIM BE DENIED.  THE COMMISSION STATED THAT "THE PERTINENT FACTS
ARE ACCURATELY AND ADEQUATELY STATED" IN THE EXAMINERS' REPORTS AND
ADOPTED THE STATEMENTS AS ITS OWN (79 M.C.C., AT 605, 608), BUT IT
CONCLUDED THAT THE FIRST APPLICATION SHOULD BE GRANTED IN PART.  (FN2)
THE COMMISSION FOUND THAT ALTHOUGH SERVICE IN THE AREA WAS SATISFACTORY
BEFORE MAY 1956, AFTER THAT DATE THE UNION-INDUCED BOYCOTT OF THE
STOCKHOLDER CARRIERS CAUSED "A SUBSTANTIAL DISRUPTION" AND "SERIOUS
INADEQUACIES IN THE SERVICE AVAILABLE."  79 M.C.C., AT 612, 613. 
ACCORDINGLY, IT FOUND THAT GRANT OF SHORT LINE'S APPLICATION WAS
REQUIRED BY "THE PRESENT AND FUTURE PUBLIC CONVENIENCE AND NECESSITY." 
ID., AT 613.  THE COMMISSION DECLARED THAT IT WAS NOT ATTEMPTING TO
ADJUDICATE A LABOR DISPUTE OR TRENCH UPON THE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD, AND IT CONCEDED ITS LACK OF
JURISDICTION TO LOOK BEYOND THE DUTIES OF CARRIERS TO THE PUBLIC UNDER
THE TERMS OF THE INTERSTATE COMMERCE ACT.  ID., AT 611.  IT STRONGLY
CRITICIZED THE CARRIER APPELLANTS FOR YIELDING TO UNION SECONDARY
BOYCOTT DEMANDS, HOWEVER, AND IT DECLARED THAT THE CARRIERS' FAILURE TO
FULFILL THEIR DUTIES AS COMMON CARRIERS WAS PARTICULARLY INEXCUSABLE
SINCE THERE HAD BEEN NO VIOLENCE OR IMMINENT THREATS OF DANGER TO
PROPERTY OR PERSON.  THE COMMISSION EXPRESSED THE OPINION THAT ALLEGED
"APPREHENSIONS OF CERTAIN OF THE ORGANIZED CARRIERS THAT ANY OPPOSITION
TO THE DEMANDS OF THE UNION WOULD HAVE RESULTED IN REPRISALS AGAINST
THEM" WERE "GREATLY EXAGGERATED," AND IT NOTED THAT SOME OF THE
INTERLINING CARRIERS HAD SUCCESSFULLY CONTINUED TO DEAL WITH THE
STOCKHOLDER CARRIERS, WITH AT LEAST ONE OF THEM ENCOUNTERING NO
DIFFICULTIES WITH ITS EMPLOYEES WHEN IT CHANGED ITS POLICY AND CARRIED
OUT ITS STATUTORY DUTIES AS A COMMON CARRIER AND INTERLINED WITH THE
SHORT LINE CARRIERS.  (FN3)  ID., AT 612. 

FINALLY, THE COMMISSION CONSIDERED THE REMEDY APPROPRIATE TO THE
SITUATION.  SHORT LINE HAD APPLIED FOR OPERATING AUTHORITY UNDER SEC.
207 (CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY).  AS THE
COMMISSION NOTED, THE ACT PROVIDES OTHER MEANS OF CORRECTING
DEFICIENCIES OF SERVICE.  SECTION 204(C) EMPOWERS THE COMMISSION TO
ORDER CARRIERS TO COMPLY WITH THE TRANSPORTATION LAWS, AND THE
COMMISSION MAY ACT UPON COMPLAINT OR UPON ITS OWN MOTION WITHOUT
COMPLAINT, IN EACH CASE AFTER NOTICE AND HEARING, AND SANCTIONS ARE
AVAILABLE TO ENFORCE ITS ORDERS; (FN4) SEC.  212(A) EMPOWERS THE
COMMISSION TO SUSPEND CERTIFICATES FOR FAILURE TO COMPLY WITH DUTIES
UNDER THE ACT.  THE COMMISSION PROCEEDED TO DISPOSE OF THE REMEDY
PROBLEM IN THE FOLLOWING MANNER: 

"WE DO NOT AGREE WITH THOSE OF THE PARTIES WHO INSIST THAT THE
PROCEDURE HERE ADOPTED; NAMELY, THE FILING OF THE INSTANT APPLICATIONS
UNDER THE PROVISIONS OF SECTION 207 OF THE ACT, IS IN ANY MANNER
INAPPROPRIATE.  REGARDLESS OF THE INJECTION OF THE LABOR SITUATION INTO
THE MATTER, THE INSTANT APPLICATIONS ARE BASED UPON CLAIMED
DEFICIENCIES IN THE MOTOR SERVICE AVAILABLE TO THE SHIPPING PUBLIC OF
NEBRASKA.  WHERE, AS HERE, THE EXISTING CARRIERS ARE SHOWN TO HAVE SO
CONDUCTED THEIR OPERATIONS AS TO RESULT IN SERIOUS INADEQUACIES IN THE
SERVICE AVAILABLE TO A LARGE SECTION OF THE PUBLIC, ONE EFFECTIVE
METHOD OF CORRECTING THE SITUATION IS BY THE GRANTING OF AUTHORITY FOR
SUFFICIENT ADDITIONAL SERVICE, AND, IN FACT, WE ARE CHARGED WITH THE
DUTY OF PROCURING SUCH ADDITIONAL FACILITIES AS MAY BE NECESSARY TO
CARRY OUT THE PURPOSES OF THE NATIONAL TRANSPORTATION POLICY.  THE FACT
THAT OTHER REMEDIES ARE AVAILABLE, SUCH AS THE SUGGESTED FILING OF
COMPLAINTS BY THE AGGRIEVED CARRIERS AND SHIPPERS DOES NOT ALTER THE
SITUATION OR DEPRIVE ANY CARRIER OF THE RIGHT TO FOLLOW THE COURSE HERE
CHOSEN."  ID., AT 613. 

THE COMMISSION THEREFORE GRANTED THE APPLICATION.  (FN5) 

THE PROTESTING CARRIERS AND THE AFFECTED UNION SOUGHT JUDICIAL REVIEW
BEFORE A THREE-JUDGE DISTRICT COURT (28 U.S.C. SECS. 1336, 1398, 2321
2325), WHICH UPHELD THE ORDER AS WITHIN THE SCOPE OF THE COMMISSION'S
STATUTORY AUTHORITY, BASED ON ADEQUATE FINDINGS, AND SUPPORTED BY
SUBSTANTIAL EVIDENCE.  194 F. SUPP. 31.  THE COURT REVIEWED THE
EVIDENCE AND CONCLUDED THAT ALTHOUGH THERE WAS "NO DOUBT THAT THEIR
(THE PROTESTING CARRIERS') ABILITY TO PERFORM SERVICE PRIOR TO MAY 1956
WAS ADEQUATE," THE RECORD SHOWED THAT UNION PRESSURE MADE IT INADEQUATE
THEREAFTER.  194 F. SUPP., AT 45.  THE COURT RECOGNIZED THAT A CEASE
AND-DESIST ORDER MIGHT HAVE BEEN UTILIZED, BUT STATED THAT ADDITIONAL
CERTIFICATION WAS ALSO A PERMISSIBLE REMEDY WHICH WAS NOT MADE
UNAVAILABLE MERELY BECAUSE THE REASON FOR INADEQUACY OF SERVICE WAS
THAT "EXISTING CARRIERS WERE SUBORDINATING THEIR PUBLIC SERVICE
OBLIGATIONS TO THEIR COLLECTIVE BARGAINING AGREEMENTS."  ID., AT 54. 

IN REGARD TO THE CHOICE OF REMEDY, THE COURT REJECTED THE CONTENTION
THAT THE PASSAGE OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT
OF 1959, WHICH ADDED SEC. 8(E) TO THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 73 STAT. 543, 29 U.S.C.
(SUPP. III) SEC. 158(E), SOME FOUR MONTHS AFTER THE ENTRY OF THE ORDER,
MOOTED THE CASE BY MAKING THE UNION ACTIVITIES IN INDUCING THE
ORGANIZED CARRIERS TO BOYCOTT THE SHORT LINE STOCKHOLDER CARRIERS
ILLEGAL AND THEREFORE UNLIKELY TO BE RESUMED.  THE DISTRICT COURT
EXPRESSED DOUBTS AS TO WHETHER SEC. 8(E) "EFFECTIVELY OUTLAWS 'HOT
CARGO' CLAUSES," AND MAINTAINED THAT, EVEN IF IT DID, THE COMMISSION'S
ORDER SHOULD STILL STAND.  ID., AT 58.  TO THE UNION'S CONTENTION THAT
GRANT OF A CERTIFICATE HERE INJECTED THE INTERSTATE COMMERCE COMMISSION
INTO THE PROVINCE OF THE NATIONAL LABOR RELATIONS BOARD, OR AT LEAST
UNDERCUT TO SOME EXTENT THE POLICIES OF SEC. 7 OF THE NATIONAL LABOR
RELATIONS ACT, THE COURT REPLIED THAT THE UNION'S FAILURE TO ORGANIZE
THE EMPLOYEES OF THE SHORT LINE CARRIERS "EFFECTIVELY DESTROYED ANY
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD UNDER THE ACT OF ITS
CREATION."  ID., AT 59.  (FN6)  THE CASE IS NOW BEFORE US ON DIRECT
APPEALS FROM THIS JUDGMENT. 

WE HAVE CONCLUDED THAT THE JUDGMENT OF THE DISTRICT COURT MUST BE
REVERSED AND THE COMMISSION'S ORDER SET ASIDE AS AN IMPROVIDENT
EXERCISE OF ITS DISCRETION.  THE COMMISSION FOUND FROM THE FACTS OF
RECORD THAT THE REFUSALS TO HANDLE INTERCHANGE TRAFFIC AND TO ACCEPT
FREIGHT FROM CERTAIN SHIPPERS (FN7) CAUSED A SUBSTANTIAL DISRUPTION IN
MOTOR SERVICE AND SERIOUS INADEQUACIES IN THE SERVICE AVAILABLE,
DESPITE THE EFFORTS OF SOME OF THE LARGER TRUNK-LINE CARRIERS TO
MAINTAIN NORMAL INTERLINE RELATIONSHIPS.  THERE WAS AMPLE EVIDENCE TO
SUPPORT THESE FINDINGS AND WE DO NOT DISTURB THEM. 

THE DIFFICULTY WITH THE ORDER ARISES IN CONNECTION WITH THE FINDINGS
AND CONCLUSIONS RELEVANT TO THE CHOICE OF REMEDY.  THE ASSUMPTION OF
THE COMMISSION WAS THAT THE DEFICIENCIES OF SERVICE MADE EITHER OF TWO
REMEDIES AVAILABLE - ADDITIONAL CERTIFICATION OR ENTRY OF A CEASE-AND
DESIST ORDER - AND THAT IT HAD UNLIMITED DISCRETION TO APPLY EITHER
REMEDY SIMPLY BECAUSE EITHER MIGHT BE EFFECTIVE.  IT IS UNMISTAKABLY
CLEAR FROM THE OPINION OF THE COMMISSION AND FROM THE FACT-FINDINGS IT
MADE OR ADOPTED, (FN8) THAT THE DISRUPTION IN SERVICE RESULTED SOLELY
FROM REFUSALS TO SERVE, WHICH IN TURN AROSE FROM UNION PRESSURE APPLIED
TO OBTAIN UNION OBJECTIVES.  IT IS EQUALLY CLEAR THAT ABSENT UNION
PRESSURE THERE WOULD HAVE BEEN NO REFUSALS TO SERVE AND THAT IN SUCH
NORMAL CIRCUMSTANCES THE FACILITIES AND THE SERVICES OF THE EXISTING
CARRIERS WERE ADEQUATE.  (FN9) MOREOVER, THE TRUNK-LINE CARRIERS WERE
OPERATING BELOW CAPACITY, (FN10) WERE IN A POSITION AND ANXIOUS TO
TRANSPORT ADDITIONAL TRAFFIC, (FN11) AND HAD BEEN ENJOYING THE
PREVIOUSLY INTERLINED TRAFFIC WHICH THE GRANT WOULD DIVERT TO SHORT
LINE.  (FN12)  IN THIS FACTUAL CONTEXT WE MAY PUT ASIDE AT THE OUTSET
THE AUTHORITY WHICH THE APPELLEES RELY UPON THAT HOLDS THAT ADDITIONAL
CERTIFICATION IS THE NORMAL AND PERMISSIBLE WAY TO DEAL WITH
GENERALIZED INADEQUACY IN SERVICE.  SEE, E.G., DAVIDSON TRANSFER CO. V.
UNITED STATES, 42 F. SUPP. 215, 219-220 (E.D. PA.), AFF'D, 317 U.S.
587.  (FN13)  WHEN, AS HERE, THE PARTICULAR DEVIATIONS FROM AN
OTHERWISE COMPLETELY ADEQUATE SERVICE (WHICH HAS ECONOMIC NEED FOR THE
TRAFFIC) CONSIST SOLELY OF ILLEGAL AND DISCRIMINATORY REFUSALS TO
ACCEPT OR DELIVER TRAFFIC FROM OR TO PARTICULAR CARRIERS OR SHIPPERS,
THE POWERS OF THE COMMISSION UNDER SECS. 204, 212, AND 216 BEAR HEAVILY
ON THE PROPRIETY OF SEC. 207 RELIEF.  AND IN SUCH A CASE THE CHOICE OF
THE CERTIFICATION REMEDY MAY NOT BE AUTOMATIC; IT MUST BE RATIONAL AND
BASED UPON CONSCIOUS CHOICE THAT IN THE CIRCUMSTANCES THE PUBLIC
INTEREST IN "ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE" OUTBALANCES
WHATEVER PUBLIC INTEREST THERE IS IN PROTECTING EXISTING CARRIERS'
REVENUES IN ORDER TO "FOSTER SOUND ECONOMIC CONDITIONS IN
TRANSPORTATION AND AMONG THE SEVERAL CARRIERS" (NATIONAL TRANSPORTATION
POLICY, 49 U.S.C. PRECEDING SECS. 1, 301, 901, 1001), (FN14) AND THE
OTHER OPPOSING INTERESTS. 

THERE ARE NO FINDINGS AND NO ANALYSIS HERE TO JUSTIFY THE CHOICE
MADE, NO INDICATION OF THE BASIS ON WHICH THE COMMISSION EXERCISED ITS
EXPERT DISCRETION.  WE ARE NOT PREPARED TO AND THE ADMINISTRATIVE
PROCEDURE ACT (FN15) WILL NOT PERMIT US TO ACCEPT SUCH ADJUDICATORY
PRACTICE.  SEE SIEGEL CO. V. FEDERAL TRADE COMM'N, 327 U.S. 608, 613
614.  EXPERT DISCRETION IS THE LIFEBLOOD OF THE ADMINISTRATIVE PROCESS,
BUT "UNLESS WE MAKE THE REQUIREMENTS FOR ADMINISTRATIVE ACTION STRICT
AND DEMANDING, EXPERTISE, THE STRENGTH OF MODERN GOVERNMENT, CAN BECOME
A MONSTER WHICH RULES WITH NO PRACTICAL LIMITS ON ITS DISCRETION."  NEW
YORK V. UNITED STATES, 342 U.S. 882, 884 (DISSENTING OPINION). 
"CONGRESS DID NOT PURPORT TO TRANSFER ITS LEGISLATIVE POWER TO THE
UNBOUNDED DISCRETION OF THE REGULATORY BODY."  FEDERAL COMMUNICATIONS
COMM'N V. RCA COMMUNICATIONS, INC., 346 U.S. 86, 90.  THE COMMISSION
MUST EXERCISE ITS DISCRETION UNDER SEC. 207(A) WITHIN THE BOUNDS
EXPRESSED BY THE STANDARD OF "PUBLIC CONVENIENCE AND NECESSITY." 
COMPARE ID., AT 91.  AND FOR THE COURTS TO DETERMINE WHETHER THE AGENCY
HAS DONE SO, IT MUST "DISCLOSE THE BASIS OF ITS ORDER" AND "GIVE CLEAR
INDICATION THAT IT HAS EXERCISED THE DISCRETION WITH WHICH CONGRESS HAS
EMPOWERED IT."  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 197. 
THE AGENCY MUST MAKE FINDINGS THAT SUPPORT ITS DECISION, AND THOSE
FINDINGS MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE.  INTERSTATE
COMMERCE COMM'N V. J-T TRANSPORT CO., 368 U.S. 81, 93; UNITED STATES V.
CAROLINA CARRIERS CORP., 315 U.S. 475, 488-489; UNITED STATES V.
CHICAGO, M., ST. P.&P.R. CO., 294 U.S. 499, 511.  HERE THE COMMISSION
MADE NO FINDINGS SPECIFICALLY DIRECTED TO THE CHOICE BETWEEN TWO VASTLY
DIFFERENT REMEDIES WITH VASTLY DIFFERENT CONSEQUENCES TO THE CARRIERS
AND THE PUBLIC.  NOR DID IT ARTICULATE ANY RATIONAL CONNECTION BETWEEN
THE FACTS FOUND AND THE CHOICE MADE.  THE COMMISSION ADDRESSED ITSELF
NEITHER TO THE POSSIBLE SHORTCOMINGS OF SEC. 204 PROCEDURES, TO THE
ADVANTAGES OF CERTIFICATION, NOR TO THE SERIOUS OBJECTIONS TO THE
LATTER.  AS WE SHALL PRESENTLY SHOW, THESE OBJECTIONS ARE PARTICULARLY
IMPORTANT IN THE PRESENT CONTEXT AND THEY SHOULD HAVE BEEN TAKEN INTO
ACCOUNT. 

APPELLANTS' POSITION IS AND WAS THAT THE REFUSALS TO SERVE COULD BE
TERMINATED THROUGH COMPLAINT PROCEDURES AND THUS THE NEED FOR
ADDITIONAL SERVICE OBVIATED.  THE COMMISSION WAS, AS INDICATED,
UNRESPONSIVE TO THESE ARGUMENTS IN ITS ORDER, DEEMING THAT THE
AVAILABILITY OF THE OTHER REMEDY "(DID) NOT ALTER THE SITUATION."  THIS
WAS ERROR.  COMMISSION COUNSEL NOW ATTEMPT TO JUSTIFY THE COMMISSION'S
"CHOICE" OF REMEDY ON THE GROUND THAT A CEASE-AND-DESIST ORDER WOULD
HAVE BEEN INEFFECTIVE.  THE SHORT ANSWER TO THIS ATTEMPTED
JUSTIFICATION IS THAT THE COMMISSION DID NOT SO FIND.  SECURITIES &
EXCHANGE COMM'N V. CHENERY CORP., 332 U.S. 194, 196.  THE COURTS MAY
NOT ACCEPT APPELLATE COUNSEL'S POST HOC RATIONALIZATIONS FOR AGENCY
ACTION; CHENERY REQUIRES THAT AN AGENCY'S DISCRETIONARY ORDER BE
UPHELD, IF AT ALL, ON THE SAME BASIS ARTICULATED IN THE ORDER BY THE
AGENCY ITSELF: 

"A SIMPLE BUT FUNDAMENTAL RULE OF ADMINISTRATIVE LAW  ...  IS  ...
THAT A REVIEWING COURT, IN DEALING WITH A DETERMINATION OR JUDGMENT
WHICH AN ADMINISTRATIVE AGENCY ALONE IS AUTHORIZED TO MAKE, MUST JUDGE
THE PROPRIETY OF SUCH ACTION SOLELY BY THE GROUNDS INVOKED BY THE
AGENCY.  IF THOSE GROUNDS ARE INADEQUATE OR IMPROPER, THE COURT IS
POWERLESS TO AFFIRM THE ADMINISTRATIVE ACTION  ... ."  IBID. 

FOR THE COURTS TO SUBSTITUTE THEIR OR COUNSEL'S DISCRETION FOR THAT
OF THE COMMISSION IS INCOMPATIBLE WITH THE ORDERLY FUNCTIONING OF THE
PROCESS OF JUDICIAL REVIEW.  THIS IS NOT TO DEPRECATE, BUT TO VINDICATE
(SEE PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 197), THE
ADMINISTRATIVE PROCESS, FOR THE PURPOSE OF THE RULE IS TO AVOID
"PROPELLING THE COURT INTO THE DOMAIN WHICH CONGRESS HAS SET ASIDE
EXCLUSIVELY FOR THE ADMINISTRATIVE AGENCY."  332 U.S., AT 196. 

THE SECOND AND LONGER ANSWER TO THE ATTEMPTED JUSTIFICATION IS THAT
THERE IS NOT SUBSTANTIAL EVIDENCE OF RECORD UPON WHICH TO BASE A
FINDING THAT A CEASE-AND-DESIST ORDER WOULD HAVE BEEN INEFFECTIVE. 
THERE WAS EVERY INDICATION AT THE TIME THAT A CEASE-AND-DESIST ORDER
WOULD RENDER THE DEFICIENCIES IN SERVICE PURELY TEMPORARY PHENOMENA AND
WOULD THUS BE EFFECTIVE IN PROMOTING ADEQUATE, ECONOMICAL, AND
EFFICIENT SERVICE AND IN FOSTERING SOUND ECONOMIC CONDITIONS AMONG THE
CARRIERS AFFECTED. 

IT IS SAID THAT ATTEMPTED COMPLIANCE BY THE UNIONIZED CARRIERS MIGHT
IN SOME WAY "SO AGGRAVATE THEIR LABOR DIFFICULTIES AS TO CAUSE A
COMPLETE CESSATION OF OPERATIONS."  BUT THIS IGNORES THE COMMISSION'S
CONCLUSION THAT CARRIER APPREHENSIONS OF TEAMSTER REPRISALS WERE
EXAGGERATED AND UNWARRANTED.  IT FURTHER IGNORES THE FACT THAT, AS THE
COMMISSION WAS AWARE, THE NATIONAL LABOR RELATIONS BOARD HAD ORDERED
THE UNION TO CEASE BOYCOTTING ANY OF THE STOCKHOLDER CARRIERS BY
APPEALS TO THE EMPLOYEES OF ANY OTHER CARRIER.  INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, LOCAL 554, 116 N.L.R.B. 1891.  TO BE SURE,
THE BOARD HAD NOT ORDERED THE UNION NOT TO MAKE APPEALS DIRECTLY TO THE
TRUNK-LINE CARRIERS.  THE UNION WAS FREE TO MAKE SUCH APPEALS, ABSENT
INDUCEMENT OF EMPLOYEES, AND, AS FAR AS THE LABOR LAWS AND THE
COLLECTIVE AGREEMENT (FN16) WERE CONCERNED, THE EMPLOYER WAS FREE TO
REJECT OR ACCEDE TO SUCH REQUESTS.  BUT IT WAS PRECISELY AT THIS POINT
THAT THE SAND DOOR CASE (LOCAL 1976 V. LABOR BOARD, 357 U.S. 93)
RECOGNIZED THE POWER OF THE COMMISSION TO ENTER CEASE-AND-DESIST ORDERS
AGAINST THE CARRIERS' VIOLATING THE TRANSPORTATION LAW AND THEIR
TARIFFS.  (FN17)  THUS, AS THE APPELLANT UNION ARGUES, (FN18) THERE WAS
NO REASON TO HAVE ASSUMED THAT THE ORDINARY PROCESSES OF THE LAW (FN19)
WERE INCAPABLE OF REMEDYING THE SITUATION.  (FN20) 

BUT DISCUSSION OF THE EFFECTIVENESS OF CEASE-AND-DESIST ORDERS IN
TERMS OF THE JUNE 1959 STATUS OF HOT CARGO ARRANGEMENTS IS NOW LARGELY
ACADEMIC: CONGRESS ADDED SEC. 8(E) TO THE ACT FOUR MONTHS AFTER THE
COMMISSION'S DECISION IN THIS CASE AND OVER A YEAR BEFORE THE DISTRICT
COURT SUSTAINED THE COMMISSION.  UNDER THIS SECTION CONGRESS DECLARED
IT TO "BE AN UNFAIR LABOR PRACTICE FOR ANY LABOR ORGANIZATION AND ANY
EMPLOYER TO ENTER INTO ANY CONTRACT OR AGREEMENT, EXPRESS OR IMPLIED,
WHEREBY SUCH EMPLOYER CEASES OR REFRAINS OR AGREES TO CEASE OR REFRAIN
FROM HANDLING, USING, SELLING, TRANSPORTING OR OTHERWISE DEALING IN ANY
OF THE PRODUCTS OF ANY OTHER EMPLOYER, OR TO CEASE DOING BUSINESS WITH
ANY OTHER PERSON, AND ANY CONTRACT OR AGREEMENT ENTERED INTO HERETOFORE
OR HEARAFTER CONTAINING SUCH AN AGREEMENT SHALL BE TO SUCH EXTENT
UNENFORCIBLE AND VOID  ...  ."  IN THE ABSENCE OF AUTHORITATIVE
JUDICIAL INTERPRETATION OF SEC. 8(E), HOWEVER, THE DISTRICT COURT WAS
UNWILLING TO ATTACH ANY SIGNIFICANCE TO THE NEW LAW IN THE PRESENT
CASE.  IN THIS THE DISTRICT COURT ERRED.  THE PLAIN WORDS OF THE
STATUTE AT THE VERY LEAST RAISED SERIOUS QUESTIONS ABOUT THE LEGALITY
OF DIRECT UNION-EMPLOYER AGREEMENTS TO BOYCOTT ANOTHER EMPLOYER.  NOT
ONLY WOULD THE DELINQUENT INTERLINING CARRIERS IN THIS CASE BE SUBJECT
TO THE INJUNCTIVE AND OTHER PROCESSES OF THE NATIONAL LABOR RELATIONS
BOARD IF THEIR CONDUCT VIOLATED SEC. 8(E), BUT THE UNIONS THEMSELVES
WOULD BE VULNERABLE (FN21) AND THE PRESSURES WHICH GENERATED THE
REFUSALS TO SERVE MIGHT WELL BE EFFECTIVELY REMOVED.  THESE INTERVENING
FACTS SO CHANGED THE COMPLEXION OF THE CASE THAT (EVEN PUTTING ASIDE
THE CONSIDERATIONS DISCUSSED ABOVE) THE REVIEWING EQUITY COURT, IN THE
EXERCISE OF ITS SOUND DISCRETION, SHOULD NOT HAVE AFFIRMED THE ORDER,
AS IT DID, BUT SHOULD HAVE VACATED IT AND REMANDED IT TO THE COMMISSION
FOR FURTHER CONSIDERATION IN THE LIGHT OF THE CHANGED CONDITIONS.  SEE
FORD MOTOR CO. V. LABOR BOARD, 305 U.S. 364, 373-374; WABASH R. CO. V.
PUBLIC SERV. COMM'N, 273 U.S. 126, 130-131; GULF, C.&S.F.R. CO. V.
DENNIS, 224 U.S. 503, 506-509.  (FN22) 

FINALLY, ALTHOUGH WE DO NOT WISH TO FETTER THE COMMISSION'S EXPERT,
DISCRETIONARY POWERS BY SPECIFICALLY PRESCRIBING THAT CEASE-AND-DESIST
ORDER RELIEF BE GRANTED (IF, INDEED, ANY RELIEF IS STILL NEEDED) RATHER
THAN ADDITIONAL CERTIFICATION, NEVERTHELESS THE COMMISSION SHOULD BE
PARTICULARLY CAREFUL IN ITS CHOICE OF REMEDY, AND SHOULD HAVE BEEN
PARTICULARLY CAREFUL, BECAUSE OF THE POSSIBLE EFFECTS OF ITS DECISION
ON THE FUNCTIONING OF THE NATIONAL LABOR RELATIONS POLICY.  THE
COMMISSION ACTS IN A MOST DELICATE AREA HERE, BECAUSE WHATEVER IT DOES
AFFIRMATIVELY (WHETHER IT GRANTS A CERTIFICATE OR ENTERS A CEASE-AND
DESIST ORDER) MAY HAVE IMPORTANT CONSEQUENCES UPON THE COLLECTIVE
BARGAINING PROCESSES BETWEEN THE UNION AND THE EMPLOYER.  THE POLICIES
OF THE INTERSTATE COMMERCE ACT AND THE LABOR ACT NECESSARILY MUST BE
ACCOMODATED, ONE TO THE OTHER.  WRITING BEFORE THE 1959 AMENDMENTS TO
THE LABOR LAW, THIS COURT SAID IN THE SAND DOOR CASE: 

"BUT IT IS SAID THAT THE BOARD IS NOT ENFORCING THE INTERSTATE
COMMERCE ACT OR INTERFERING WITH THE COMMISSION'S ADMINISTRATION OF
THAT STATUTE, BUT SIMPLY INTERPRETING THE PROHIBITIONS OF ITS OWN
STATUTE IN A WAY CONSISTENT WITH THE CARRIER'S OBLIGATIONS UNDER THE
INTERSTATE COMMERCE ACT.  BECAUSE OF THAT ACT A CARRIER CANNOT
EFFECTIVELY CONSENT NOT TO HANDLE THE GOODS OF A SHIPPER  ... .  BUT
THE FACT THAT THE CARRIER'S CONSENT IS NOT EFFECTIVE TO RELIEVE HIM
FROM CERTAIN OBLIGATIONS UNDER THE INTERSTATE COMMERCE ACT DOES NOT
NECESSARILY MEAN THAT IT IS INEFFECTIVE FOR ALL PURPOSES, NOR SHOULD A
DETERMINATION UNDER ONE STATUTE BE MECHANICALLY CARRIED OVER IN THE
INTERPRETATION OF ANOTHER STATUTE INVOLVING SIGNIFICANTLY DIFFERENT
CONSIDERATIONS AND LEGISLATIVE PURPOSES."  357 U.S., AT 110. 

THE COURT CONCLUDED THAT ALTHOUGH "COMMON FACTORS MAY EMERGE IN THE
ADJUDICATION OF THESE QUESTIONS" UNDER THE TWO ACTS BY THE TWO
DIFFERENT AGENCIES, NEVERTHELESS INDEPENDENT CONSIDERATION AND
RESOLUTION WERE POSSIBLE, THE NATIONAL LABOR RELATIONS BOARD DIRECTING
ITSELF TO CONSIDERATION OF WHETHER THE EMPLOYEES VIOLATED THEIR DUTIES
UNDER SEC. 8(B) AND THE INTERSTATE COMMERCE COMMISSION DIRECTING ITS
ATTENTION TO WHETHER THE CARRIER "MAY HAVE FAILED IN HIS OBLIGATIONS
UNDER THE INTERSTATE COMMERCE ACT." 

IMPLICIT IN THIS ANALYSIS IS A RECOGNITION THAT IF EITHER AGENCY IS
NOT CAREFUL IT MAY TRENCH UPON THE OTHER'S JURISDICTION, AND, BECAUSE
OF LACK OF EXPERT COMPETENCE, CONTRAVENE THE NATIONAL POLICY AS TO
TRANSPORTATION OR LABOR RELATIONS.  IN SUCH A CONTEXT, CHOICE OF THE
SWEEPING RELIEF OF CERTIFICATION RATHER THAN THE MORE PRECISE AND
NARROWLY DRAWN CEASE-AND-DESIST ORDER REMEDY WAS IMPROVIDENT, ABSENT A
COMPELLING JUSTIFICATION.  AND THE FACT THAT SEC. 8(E) OF THE ACT NOW
EXPOSES THE EMPLOYER AS WELL AS THE UNION TO LABOR BOARD INJUNCTIVE
PROCESSES ONLY UNDERLINES THE NECESSITY FOR CAREFUL ANALYSIS IN
FASHIONING A REMEDY TO TERMINATE UNLAWFUL ACTION BY DELINQUENT
CARRIERS.  THIS IS NOT TO SAY THAT CIRCUMSTANCES CAN NEVER PERMIT THE
COMMISSION TO AUTHORIZE ADDITIONAL SERVICE TO REMEDY REFUSALS TO SERVE,
BUT THE COMMISSION MUST ACT WITH A DISCRIMINATING AWARENESS OF THE
CONSEQUENCES OF ITS ACTION.  IT HAS NOT DONE SO HERE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED.  THE CASE IS REMANDED
TO IT WITH INSTRUCTIONS TO ENTER AN ORDER ENJOINING, ANNULLING, AND
SETTING ASIDE THE ORDER OF THE INTERSTATE COMMERCE COMMISSION, AND
REMANDING THE CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE HOT CARGO CLAUSE PROVIDED, IN PERTINENT PART: 

"IT SHALL NOT BE A VIOLATION OF THIS AGREEMENT AND IT SHALL NOT BE
CAUSE FOR DISCHARGE IF ANY EMPLOYEE OR EMPLOYEES REFUSE TO GO THROUGH
THE PICKET LINE OF A UNION OR REFUSE TO HANDLE UNFAIR GOODS.  NOR SHALL
THE EXERCISE OF ANY RIGHTS PERMITTED BY LAW BE A VIOLATION OF THIS
AGREEMENT.  THE UNION AND ITS MEMBERS, INDIVIDUALLY AND COLLECTIVELY,
RESERVE THE RIGHT TO REFUSE TO HANDLE GOODS FROM OR TO ANY FIRM OR
TRUCK WHICH IS ENGAGED OR INVOLVED IN ANY CONTROVERSY WITH THIS OR ANY
OTHER UNION; AND RESERVE THE RIGHT TO REFUSE TO ACCEPT FREIGHT FROM OR
TO MAKE PICKUPS FROM, OR DELIVERIES TO ESTABLISHMENTS WHERE PICKET
LINES, STRIKES, WALK-OUTS OR LOCKOUTS EXIST. 

"THE TERM 'UNFAIR GOODS' AS USED IN THIS ARTICLE INCLUDES, BUT IS NOT
LIMITED TO, ANY GOODS OR EQUIPMENT TRANSPORTED, INTERCHANGED, HANDLED,
OR USED BY ANY CARRIER, WHETHER PARTY TO THIS AGREEMENT OR NOT, AT ANY
OF WHOSE TERMINALS OR PLACES OF BUSINESS THERE IS A CONTROVERSY BETWEEN
SUCH CARRIER OR ITS EMPLOYEES ON THE ONE HAND, AND A LABOR UNION ON THE
OTHER HAND; AND SUCH GOODS OR EQUIPMENT SHALL CONTINUE TO BE 'UNFAIR'
WHILE BEING TRANSPORTED, HANDLED OR USED BY INTERCHANGING OR SUCCEEDING
CARRIERS, WHETHER PARTIES TO THIS AGREEMENT OR NOT, UNTIL SUCH
CONTROVERSY IS SETTLED. 

*         *         *         *         * 

"THE INSISTENCE BY ANY EMPLOYER THAT HIS EMPLOYEES) HANDLE UNFAIR
GOODS OR GO THROUGH A PICKET LINE AFTER THEY HAVE ELECTED NOT TO, AND
IF SUCH REFUSAL HAS BEEN APPROVED IN WRITING BY THE RESPONSIBLE
OFFICIALS OF THE CENTRAL STATES DRIVERS COUNCIL, SHALL BE SUFFICIENT
CAUSE FOR AN IMMEDIATE STRIKE OF ALL SUCH EMPLOYER'S OPERATIONS WITHOUT
ANY NEED OF THE UNION TO GO THROUGH THE GRIEVANCE PROCEDURE HEREIN." 

FN2  THE GRANT WAS LIMITED TO AN OMAHA-CHICAGO AND OMAHA-KANSAS CITY
ST. LOUIS ROUTE, FOR TRAFFIC ORIGINATING IN OR DESTINED TO NEBRASKA
POINTS.  79 M.C.C., AT 606, 614.  NO APPELLATE REVIEW HAS BEEN SOUGHT
FOR THE DENIAL OF THE SECOND APPLICATION. 

FN3  APPARENTLY, IN SOME INSTANCES IT WAS NECESSARY TO HANDLE
INTERLINED TRAFFIC BY OFFICIALS OR SUPERVISORY PERSONNEL WHEN EMPLOYEES
REFUSED TO TOUCH IT.  SEE R. 82. 

FN4  SEE SECS. 212(A) (REVOCATION), 222(A) (FINE), 222(B)
(INJUNCTION).  THAT THE INADEQUACY IN SERVICE INVOLVED HERE WAS FIRST
BROUGHT TO THE COMMISSION'S ATTENTION BY APPELLEE'S APPLICATION FOR A
CERTIFICATE IN NO WAY, OF COURSE, LIMITED THE AGENCY'S POWER TO INVOKE
SECS. 204(C), 212, 222. 

FN5  IN THIS CONNECTION THE COMMISSION NOTED THAT IT HAD REFUSED A
GRANT IN A SIMILAR CASE DECIDED CONCURRENTLY WITH THE PRESENT
APPLICATION (GALVESTON TRUCK LINE CORPORATION EXTENSION, 79 M.C.C.
619). THE COMMISSION STATED THAT THE CIRCUMSTANCES THERE WERE DIFFERENT
BECAUSE THE LABOR DIFFICULTIES WHICH HAD LED TO COMMISSION ISSUANCE OF
A CEASE-AND-DESIST ORDER AGAINST CARRIER OBEDIENCE TO HOT CARGO CLAUSES
(GALVESTON TRUCK LINE CORP. V. ADA MOTOR LINES, INC., 73 M.C.C. 617;
SEE NOTE 17, INFRA) HAD "CEASED TO EXIST FOR SOME TIME PRIOR TO THE
HEARING, WHEREAS IN THE INSTANT PROCEEDING SUCH DIFFICULTIES WERE OF
MORE RECENT ORIGIN AND WERE CONTINUING TO BE EXPERIENCED UP TO AND
INCLUDING THE TIME OF THE HEARING."  79 M.C.C., AT 613.  BUT
APPROXIMATELY 21 MONTHS INTERVENED BETWEEN THE EXAMINER'S REPORT AND
THE COMMISSION'S ORDER, AND OVER TWO YEARS BETWEEN HEARINGS AND ORDER. 
DURING AT LEAST 18 MONTHS OF THIS TIME THE CASE APPEARS TO HAVE BEEN
ARGUED TO THE COMMISSION, REMAINING ON THE DOCKET PENDING DECISION. 
SEE 73 M.C.C., AT 617, N. 1.    FN6  COMPARE DUPLEX PRINTING PRESS CO.
V. DEERING, 254 U.S. 443, 471-472.  BUT SEE NATIONAL LABOR RELATIONS
ACT, SECS. 2(3), 9; NORRIS-LAGUARDIA ACT, SEC. 13(C). 

FN7  THERE WERE FINDINGS THAT SECONDARY BOYCOTTS WERE IMPOSED NOT
ONLY AGAINST THE STOCKHOLDER CARRIERS BUT AGAINST CERTAIN SHIPPERS WHO
WERE ENGAGED IN THEIR OWN LABOR DISPUTES. 

FN8  THE COMMISSION ADOPTED THE STATEMENTS OF FACTS IN BOTH
RECOMMENDED REPORTS.  79 M.C.C., AT 605, 608. 

FN9  R. 87-89, 95. 

FN10  R. 54. 

FN11  IBID., R. 95. 

FN12  R. 68-69. 

FN13  AND SEE ATCHISON, T.&S.F.R. CO. V. REDDISH, 368 U.S. 81, 91,
WHERE THE COURT REJECTED THE ARGUMENT THAT COMPLAINT PROCEEDINGS MUST
BE RESORTED TO BEFORE ADDITIONAL OPERATING AUTHORITY COULD BE HAD TO
REPLACE A COMMON CARRIER SERVICE INADEQUATE FOR THE SHIPPERS'
PARTICULARIZED PHYSICAL OR ECONOMIC NEEDS.  THIS CASE, LIKE THE MANY
CASES APPELLEES CITE IN WHICH THE COMMISSION GRANTED THROUGH-ROUTE
CERTIFICATION TO OVERCOME INADEQUACY OF EXISTING JOINT-LINE SERVICE
(E.G., PENN OHIO NEW YORK EXP.  CORP.  EXT. - N.Y., 27 M.C.C. 269;
MALONE FREIGHT LINES, INC., EXT. - TEXTILES, 61 M.C.C. 501; DALLAS &
MAVIS FWDG.  CO. EXT. - MONT., 64 M.C.C.  511; BRASWELL EXT. - CALIF.,
68 M.C.C. 664; KENOSHA CORP. EXT. - KENOSHA, 72 M.C.C. 289), IS CLEARLY
INAPPOSITE HERE, WHERE THERE IS NOTHING INHERENTLY WRONG WITH THE
APPELLANT CARRIERS' SERVICE, EITHER BECAUSE OF ITS PARTICULAR NATURE OR
BECAUSE OF LACK OF CAPACITY, INFREQUENCY OF PICKUPS, DELAYS IN
DELIVERY, OR THE LIKE. 

FN14  IN THIS CONNECTION IT SHOULD BE NOTED THAT CERTIFICATION OF
SHORT LINE WOULD DIVERT TRAFFIC BOTH FROM DELINQUENT TRUNK-LINE
CARRIERS AND FROM CARRIERS WHO DID NOT VIOLATE THEIR DUTIES BY ACCEDING
TO THE SECONDARY BOYCOTT, E.G., BURLINGTON AND SANTA FE.  SEE 79
M.C.C., AT 603. 

FN15  SECTION 8(B), 5 U.S.C. SEC. 1007(B), PROVIDES THAT ALL
DECISIONS SHALL "INCLUDE A STATEMENT OF  ...  FINDINGS AND CONCLUSIONS,
AS WELL AS THE REASONS OR BASIS THEREFORE, UPON ALL THE MATERIAL ISSUES
OF FACT, LAW, OR DISCRETION PRESENTED ON THE RECORD." 

FN16  SEE NOTE 1, SUPRA, SETTING FORTH THE RELEVANT PROVISIONS, UNDER
WHICH THE EMPLOYEES RESERVED THE RIGHT TO REFUSE TO HANDLE HOT CARGO,
BUT UNDER WHICH THE EMPLOYER WAS LEFT TO HIS OWN DEVICES.  CF. NOTE 3,
SUPRA. 

FN17  THE COURT CITED WITH APPROVAL THE FIRST GALVESTON CASE
(GALVESTON TRUCK LINE CORP. V. ADA MOTOR LINES, INC., 73 M.C.C. 617),
IN WHICH THE COMMISSION ENTERED A CEASE-AND-DESIST ORDER AGAINST
CARRIER OBEDIENCE TO HOT CARGO CLAUSES.  357 U.S., AT 109-110. 

FN18  THE UNION CONTENDS IN ITS BRIEF AND WE AGREE THAT THE SEC.
212(A) COMPLAINT PROCEDURE, IF FOLLOWED BY THE STOCKHOLDER CARRIERS,
"WOULD HAVE PROVIDED A MORE ADEQUATE REMEDY" AT THE TIME THE CASE WAS
BEFORE THE COMMISSION IN 1956-1959. 

FN19  IT IS FURTHER CONTENDED, BUT WE NEED NOT CONSIDER IT HERE, THAT
THE EFFICACY OF A CEASE-AND-DESIST ORDER IS SEVERELY LIMITED BY THE
AGENCY'S SELF-IMPOSED LIMITATION AGAINST ORDERING CARRIERS TO CEASE
FROM DISCRIMINATORILY REFUSING TO INTERLINE AT JOINT RATES.  BUT CF.
DIXIE CARRIERS, INC., V. UNITED STATES, 351 U.S. 56; INTERSTATE
COMMERCE COMM'N V. MECHLING, 330 U.S. 567.  THE COMMISSION DID NOT
FIND, NOR COULD IT HAVE FOUND ON THIS RECORD, THAT THE PROTESTING
CARRIERS WERE LIKELY TO REFUSE TO INTERLINE WITH THE STOCKHOLDER
CARRIERS EXCEPT AT DISCRIMINATORILY HIGHER, COMBINATION RATES. 

FN20  WE DO NOT IMPLY THAT SERVICE DEFICIENCIES OF THE KIND FOUND IN
THIS RECORD COULD NEVER JUSTIFY THE ISSUANCE OF PERMANENT OPERATING
AUTHORITY.  A TOTALLY DIFFERENT CASE MIGHT BE PRESENTED IF OTHER
REMEDIAL ACTION BY THE COMMISSION AND THE BOARD PROVED FRUITLESS,
HOPELESSLY TIME-CONSUMING, OR OTHERWISE INADEQUATE TO TERMINATE THE
INTERRUPTIONS IN SERVICE.  NOR DO WE INTEND TO PASS UPON THE
COMMISSION'S DISCRETION UNDER SEC. 210A TO PROVIDE TEMPORARY AUTHORITY,
PENDING DETERMINATION OF AN APPLICATION FOR AUTHORITY OR CEASE-AND
DESIST ORDER, OR AS AN ALTERNATIVE TO PERMANENT AUTHORITY TO REMEDY
SERVICE DEFICIENCIES OF THE KIND PRESENT HERE.  SEE PAN-ATLANTIC S.S.
CORP. V. ATLANTIC COAST LINE R. CO., 353 U.S. 436. 

FN21  FOR THE VIEW OF THE NATIONAL LABOR RELATIONS BOARD, SEE
AMALGAMATED LITHOGRAPHERS OF AMERICA (IND.), 130 N.L.R.B. 985;
AMALGAMATED LITHOGRAPHERS OF AMERICA, 130 N.L.R.B. 968, AFF'D, 301 F.2D
20 (C.A. 5TH CIR.); AMERICAN FEED CO., 129 N.L.R.B. 321. 

FN22  THIS WAS, OF COURSE, THE DISTRICT COURT'S, AND NOT THE
COMMISSION'S, ERROR. 

MR. JUSTICE BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN THE COURT'S JUDGMENT SETTING ASIDE THE COMMISSION'S ORDER
GRANTING A PERMANENT CERTIFICATE TO A NEW CARRIER TO COMPETE WITH
EXISTING CARRIERS WHO BUT FOR TEMPORARY INTERRUPTIONS CAUSED BY LAWFUL
LABOR UNION ACTIVITIES WOULD ADEQUATELY MEET THE NEEDS OF COMMERCE.  I
DO NOT CONCUR, HOWEVER, IN THE REMAND TO THE COMMISSION FOR FURTHER
PROCEEDINGS.  CONGRESS HAS VESTED POWER TO REGULATE THE EMPLOYER
EMPLOYEE RELATIONSHIP IN THE NATIONAL LABOR RELATIONS BOARD, NOT IN THE
INTERSTATE COMMERCE COMMISSION, AND I THINK THE COMMISSION'S GRANT OF A
PERMANENT CERTIFICATE HERE, WHICH STEMS WHOLLY FROM TEMPORARY
TRANSPORTATION DELAYS OWING TO A LABOR DISPUTE WITHIN THE LABOR BOARD'S
JURISDICTION AND WHICH IN EFFECT PUNISHES CARRIERS FOR HONORING THEIR
THEN LAWFUL COLLECTIVE BARGAINING CONTRACTS, AMOUNTS TO AN
IMPERMISSIBLE ENCROACHMENT ON THE BOARD'S DOMAIN.  WE ARE NOT CALLED
UPON AT THIS TIME TO DECIDE WHETHER THE COMMISSION IS WHOLLY WITHOUT
POWER UNDER ANY AND ALL CIRCUMSTANCES TO GRANT TEMPORARY RELIEF FROM A
TEMPORARY STOPPAGE OF COMMERCE IN ORDER TO REMEDY ACUTE EMERGENCY
SITUATIONS SUCH, FOR ILLUSTRATION, AS A SHORTAGE OF FOOD OR SUPPLIES
URGENTLY NEEDED IN PARTICULAR LOCALITIES.  IT WILL BE TIME ENOUGH TO
DECIDE WHAT ARE THE POWERS OF THE COMMISSION TO MEET SUCH SITUATIONS
WHEN THEY ARISE; IT IS CONCEDED THAT THEY ARE NOT PRESENTED IN THIS
CASE. 

SINCE IT IS MY VIEW THAT UNDER THE FACTS HERE THE COMMISSION HAS NO
POWER TO GRANT A PERMANENT CERTIFICATE TO A COMPETITOR, I SEE NO REASON
TO DIRECT THAT THIS MATTER BE REFERRED BACK TO THE COMMISSION FOR
FURTHER PROCEEDINGS.  SUCH A REMAND ASSUMES THAT THERE IS SOME FURTHER
ACTION BY WAY OF A CEASE-AND-DESIST ORDER THE COMMISSION CAN OR SHOULD
TAKE.  MY VIEW IS THAT THE FACTS IN THIS RECORD PROVIDE NO POSSIBLE
BASIS FOR PERMITTING THE COMMISSION TO ORDER THE CARRIERS TO CEASE AND
DESIST FROM CARRYING OUT THEIR AGREEMENT WITH THE UNIONS.  NOTHING IN
THE INTERSTATE COMMERCE ACT GIVES THE COMMISSION POWER TO PROHIBIT
CARRIERS OR UNIONS UNDER THE CIRCUMSTANCES SHOWN BY THIS RECORD FROM
DOING THAT WHICH THE LABOR ACT PERMITS THEM TO DO.  MOREOVER, AS THE
COURT POINTS OUT, FOUR MONTHS AFTER THE COMMISSION'S ORDER CONGRESS
OUTLAWED THE KIND OF CONDUCT WHICH HERE INTERFERED WITH
TRANSPORTATION.  SINCE CONGRESS HAS, BY THIS ENACTMENT, SO CLEARLY
TAKEN THIS MATTER IN HAND IN A WAY THAT DOES NOT RELY FOR ENFORCEMENT
ON THE INTERSTATE COMMERCE COMMISSION, THE OLD COMMISSION PROCEEDINGS
HAVE ALL THE EARMARKS OF MOOTNESS, WHETHER TECHNICALLY MOOT OR NOT.  IF
THE UNION OR THE TRUCK LINES SHOULD HEREAFTER VIOLATE THIS NEW LAW THE
LABOR BOARD, BACKED BY THE COURTS, IS VESTED WITH AMPLE POWER TO FORCE
BOTH CARRIERS AND UNIONS TO OBEY THAT LAW.  THE INTERSTATE COMMERCE
COMMISSION HAS ENOUGH TO DO WITHIN ITS CONGRESSIONALLY APPOINTED FIELD
WITHOUT STEPPING OVER INTO THE FIELD OF LABOR REGULATION.  THE
COMMISSION SHOULD NO MORE THAN A STATE* INVADE REGULATORY TERRITORY
CONGRESS HAS PREEMPTED FOR AGENCIES OF ITS OWN CHOICE. 

* CF. SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236
(1959). 

MR. JUSTICE CLARK, CONCURRING IN THE RESULT. 

FOUR MONTHS AFTER ENTRY OF THE COMMISSION'S ORDER CONGRESS ENACTED
SEC. 8(E) AS AN AMENDMENT TO THE NATIONAL LABOR RELATIONS ACT, 29
U.S.C. (SUPP. III) SEC. 158(E).  SINCE THE LANGUAGE OF THAT SECTION
RAISED SERIOUS QUESTIONS AS TO THE LEGALITY OF THE UNIONS'"HOT CARGO"
PRESSURES, WHICH IN TURN RAISED QUESTIONS AS TO ANY CONTINUATION OF THE
"SUBSTANTIAL DISRUPTION" IN SERVICE, IT APPEARS TO ME THAT THE DISTRICT
COURT SHOULD HAVE VACATED THE ORDER AND REMANDED THE CASE TO THE
COMMISSION FOR RECONSIDERATION IN LIGHT OF THE LIKELIHOOD OF CHANGED
CIRCUMSTANCES.  THE GRANT OF PERMANENT CERTIFICATION TO A NEW CARRIER
IN AN AREA WHERE THERE ARE EXISTING CERTIFICATIONS IS A DRASTIC REMEDY
TO WHICH RESORT SHOULD NOT BE MADE EXCEPT IN THE MOST COMPELLING
CIRCUMSTANCES. 

FOR THIS REASON I CONCUR IN THE COURT'S REVERSAL AND REMAND TO THE
DISTRICT COURT.  IN VIEW OF THE LAPSE OF TIME AND THE FACT THAT THE
CONDUCT WHICH CAUSED THE DISRUPTION OF SERVICE HAS BEEN OUTLAWED* BY
CONGRESS, HOWEVER, IT APPEARS THAT THE ISSUE HAS BEEN MOOTED, AND THE
COMMISSION MAY DETERMINE THAT FURTHER PROCEEDINGS WOULD SERVE NO
PURPOSE. 

*ALTHOUGH THE EFFECTIVENESS OF THE SEC. 8(E) BAN ON "HOT CARGO"
CLAUSES MAY HAVE BEEN SUBJECT TO DOUBT WHEN THE DISTRICT COURT
ADJUDICATED THIS CASE, SUBSEQUENT CASES TEND TO REMOVE ANY SUCH DOUBT. 
SEE, E.G., LABOR BOARD V. LOCAL 294, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, 298 F.2D 105 (C.A.2D CIR. 1961). 

MR. JUSTICE GOLDBERG, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE BRENNAN JOIN, CONCURRING. 

I JOIN IN THE OPINION AND ADD ONLY A FEW WORDS TO STATE MY CONVICTION
THAT THE "DISCRIMINATING AWARENESS OF THE CONSEQUENCES OF ITS ACTION"
REQUIRED OF THE COMMISSION BY THE OPINION, INEVITABLY MUST LEAD, IF ANY
RELIEF IS NOW WARRANTED (WHICH I DOUBT), TO A REJECTION OF THE REMEDY
OF ADDITIONAL CERTIFICATION IN FAVOR OF AN APPROPRIATELY LIMITED CEASE
AND-DESIST ORDER. 

AS THE MATTER WAS PRESENTED TO THE COMMISSION AND TO THE DISTRICT
COURT, THE ADDITIONAL CERTIFICATION, AS THE FACTS HERE PLAINLY
DEMONSTRATE, INVOLVED THE COMMISSION IN INTERVENTION IN THE UNDERLYING
LABOR DISPUTE TO A DEGREE UNDULY TRENCHING UPON THE LABOR BOARD'S
JURISDICTION AND THE RIGHTS AND DUTIES OF THE AFFECTED PARTIES.  MOST
CERTAINLY AFTER THE 1959 AMENDMENTS TO THE LABOR LAW, THE COMMISSION,
HAD THE CASE THEN BEEN REMANDED TO IT BY THE DISTRICT COURT AS IT
SHOULD HAVE BEEN, COULD HAVE ENTERED A CEASE-AND-DESIST ORDER UNDER
WHICH NO CONFLICT COULD OR WOULD HAVE ARISEN BETWEEN THE I.C.C. AND THE
N.L.R.B. IN THE RESPECTIVE EXERCISE OF THEIR POWERS AND IN THE
DISCHARGE OF THEIR RESPONSIBILITIES.  SUCH A CEASE-AND-DESIST ORDER
SHOULD HAVE BEEN APPROPRIATELY LIMITED TO REQUIRING THE CARRIERS TO
PROVIDE SERVICE IN A MANNER AND TO THE EXTENT COMPATIBLE WITH THEIR
LABOR AGREEMENTS AND WITH BOTH THE CARRIERS' AND THE UNION'S RIGHTS AND
DUTIES UNDER FEDERAL LABOR LAW.  THAT SUCH AN ORDER WOULD HAVE BEEN
SUFFICIENT IN PRACTICAL EFFECT IS DEMONSTRATED BY THE FACT THAT BOTH
BURLINGTON AND SANTA FE, PARTIES TO THE HOT CARGO AGREEMENTS, WERE ABLE
TO CARRY OUT THEIR DUTIES UNDER THE MOTOR CARRIER ACT WITHOUT CREATING
ANY SERIOUS PROBLEMS UNDER THEIR UNION AGREEMENTS OR UNDER THE NATIONAL
LABOR RELATIONS ACT.  THIS BEING SO IN THE ABSENCE OF A CEASE-AND
DESIST ORDER, IT IS DIFFICULT TO UNDERSTAND WHY ENTRY OF SUCH AN ORDER
AGAINST THE CARRIERS WOULD HAVE BEEN INEFFECTIVE. 
..END :














FOMAN V. DAVIS, EXECUTRIX 371 U.S. 178 


NO. 41.  ARGUED NOVEMBER 14, 1962.  - DECIDED DECEMBER 3, 1962.  - 292
F.2D 85, REVERSED. 


A FEDERAL DISTRICT COURT DISMISSED PETITIONER'S COMPLAINT IN A CIVIL
ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MIGHT BE
GRANTED.  PETITIONER PROMPTLY MOVED TO VACATE THE JUDGMENT AND AMEND
THE COMPLAINT SO AS TO STATE AN ALTERNATIVE THEORY FOR RECOVERY. 
BEFORE THE COURT RULED ON THOSE MOTIONS, PETITIONER FILED NOTICE OF
APPEAL FROM THE JUDGMENT OF DISMISSAL.  SUBSEQUENTLY, THE DISTRICT
COURT DENIED THE MOTIONS TO VACATE THE JUDGMENT AND TO AMEND THE
COMPLAINT, AND PETITIONER FILED NOTICE OF APPEAL FROM THAT DENIAL.  ON
APPEAL, THE PARTIES BRIEFED AND ARGUED THE MERITS OF BOTH THE DISMISSAL
OF THE COMPLAINT AND THE DENIAL OF PETITIONER'S MOTIONS.  THE COURT OF
APPEALS TREATED THE FIRST NOTICE OF APPEAL AS PREMATURE, BECAUSE OF THE
THEN PENDING MOTION TO VACATE, AND IT DISMISSED THAT APPEAL.  IT HELD
THAT THE SECOND NOTICE OF APPEAL WAS INEFFECTIVE TO REVIEW THE JUDGMENT
OF DISMISSAL, BECAUSE IT FAILED TO SPECIFY THAT THE APPEAL WAS FROM
THAT JUDGMENT, AND IT AFFIRMED DENIAL OF PETITIONER'S MOTIONS, ON THE
GROUND THAT THERE WAS NOTHING IN THE RECORD TO SUPPORT A FINDING THAT
THE DISTRICT COURT HAD ABUSED ITS DISCRETION IN REFUSING TO ALLOW
AMENDMENT OF THE COMPLAINT.  HELD: 

1.  ON THE RECORD IN THIS CASE, THE COURT OF APPEALS ERRED IN
NARROWLY READING THE SECOND NOTICE OF APPEAL AS APPLYING ONLY TO THE
DENIAL OF PETITIONER'S MOTIONS, SINCE PETITIONER'S INTENTION TO SEEK
REVIEW OF BOTH THE DISMISSAL OF THE COMPLAINT AND THE DENIAL OF HER
MOTIONS WAS MANIFEST FROM THE RECORD AS A WHOLE.  PP. 181-182. 

2.  THE COURT OF APPEALS ALSO ERRED IN AFFIRMING THE DISTRICT COURT'S
DENIAL OF PETITIONER'S MOTION TO VACATE THE JUDGMENT OF DISMISSAL IN
ORDER TO ALLOW AMENDMENT OF THE COMPLAINT, SINCE IT APPEARS FROM THE
RECORD THAT THE AMENDMENT WOULD HAVE DONE NO MORE THAN STATE AN
ALTERNATIVE THEORY OF RECOVERY, FEDERAL RULE OF CIVIL PROCEDURE 15(A)
DECLARES THAT LEAVE TO AMEND "SHALL BE FREELY GIVEN WHEN JUSTICE SO
REQUIRES," AND DENIAL OF THE MOTION WITHOUT ANY APPARENT JUSTIFYING
REASON WAS AN ABUSE OF DISCRETION.  P. 182. 

FOMAN V. DAVIS, EXECUTRIX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

PETITIONER FILED A COMPLAINT IN THE DISTRICT COURT ALLEGING THAT, IN
EXCHANGE FOR PETITIONER'S PROMISE TO CARE FOR AND SUPPORT HER MOTHER,
PETITIONER'S FATHER HAD AGREED NOT TO MAKE A WILL, THEREBY ASSURING
PETITIONER OF AN INTESTATE SHARE OF THE FATHER'S ESTATE; IT WAS FURTHER
ALLEGED THAT PETITIONER HAD FULLY PERFORMED HER OBLIGATIONS UNDER THE
ORAL AGREEMENT, BUT THAT CONTRARY THERETO THE FATHER HAD DEVISED HIS
PROPERTY TO RESPONDENT, HIS SECOND WIFE AND EXECUTRIX.  PETITIONER
SOUGHT RECOVERY OF WHAT WOULD HAVE BEEN HER INTESTATE SHARE OF THE
FATHER'S ESTATE.  RESPONDENT MOVED TO DISMISS THE COMPLAINT ON THE
GROUND THAT THE ORAL AGREEMENT WAS UNENFORCEABLE UNDER THE APPLICABLE
STATE STATUTE OF FRAUDS.  ACCEPTING RESPONDENT'S CONTENTION, THE
DISTRICT COURT ENTERED JUDGMENT ON DECEMBER 19, 1960, DISMISSING
PETITIONER'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF
MIGHT BE GRANTED.  ON DECEMBER 20, 1960, PETITIONER FILED MOTIONS TO
VACATE THE JUDGMENT AND TO AMEND THE COMPLAINT TO ASSERT A RIGHT OF
RECOVERY IN QUANTUM MERUIT FOR PERFORMANCE OF THE OBLIGATIONS WHICH
WERE THE CONSIDERATION FOR THE ASSERTEDLY UNENFORCEABLE ORAL CONTRACT. 
ON JANUARY 17, 1961, PETITIONER FILED A NOTICE OF APPEAL FROM THE
JUDGMENT OF DECEMBER 19, 1960.  ON JANUARY 23, 1961, THE DISTRICT COURT
DENIED PETITIONER'S MOTIONS TO VACATE THE JUDGMENT AND TO AMEND THE
COMPLAINT.  ON JANUARY 26, 1961, PETITIONER FILED A NOTICE OF APPEAL
FROM DENIAL OF THE MOTIONS. 

ON APPEAL, THE PARTIES BRIEFED AND ARGUED THE MERITS OF DISMISSAL OF
THE COMPLAINT AND DENIAL OF PETITIONER'S MOTIONS BY THE DISTRICT
COURT.  NOTWITHSTANDING, THE COURT OF APPEALS OF ITS OWN ACCORD
DISMISSED THE APPEAL INSOFAR AS TAKEN FROM THE DISTRICT COURT JUDGMENT
OF DECEMBER 19, 1960, AND AFFIRMED THE ORDERS OF THE DISTRICT COURT
ENTERED JANUARY 23, 1961.  292 F.2D 85.  THIS COURT GRANTED
CERTIORARI.  368 U.S. 951. 

THE COURT OF APPEALS REASONED THAT IN THE ABSENCE OF A SPECIFIC
DESIGNATION OF THE PROVISION OF THE FEDERAL RULES OF CIVIL PROCEDURE
UNDER WHICH THE DECEMBER 20, 1960, MOTION TO VACATE WAS FILED, THE
MOTION WOULD BE TREATED AS FILED PURSUANT TO RULE 59(E), RATHER THAN
UNDER RULE 60(B); (FN1) SINCE, UNDER RULE 73(A), (FN2) A MOTION UNDER
RULE 59 SUSPENDS THE RUNNING OF TIME WITHIN WHICH AN APPEAL MAY BE
PERFECTED, THE FIRST NOTICE OF APPEAL WAS TREATED AS PREMATURE IN VIEW
OF THE THEN PENDING MOTION TO VACATE AND OF NO EFFECT.  THE COURT OF
APPEALS HELD THE SECOND NOTICE OF APPEAL, FILED JANUARY 26, 1961,
INEFFECTIVE TO REVIEW THE DECEMBER 19, 1960, JUDGMENT DISMISSING THE
COMPLAINT BECAUSE THE NOTICE FAILED TO SPECIFY THAT THE APPEAL WAS
BEING TAKEN FROM THAT JUDGMENT AS WELL AS FROM THE ORDERS DENYING THE
MOTIONS.  CONSIDERING THE SECOND NOTICE OF APPEAL, THEREFORE, ONLY AS
AN APPEAL FROM THE DENIAL BY THE DISTRICT COURT OF THE MOTIONS TO
VACATE AND AMEND, THE COURT OF APPEALS HELD THAT THERE WAS NOTHING IN
THE RECORD TO SHOW THE CIRCUMSTANCES WHICH WERE BEFORE THE DISTRICT
COURT FOR CONSIDERATION IN RULING ON THOSE MOTIONS; CONSEQUENTLY IT
REGARDED ITSELF AS PRECLUDED FROM FINDING ANY ABUSE OF DISCRETION IN
THE REFUSAL OF THE COURT BELOW TO ALLOW AMENDMENT. 

THE COURT OF APPEALS' TREATMENT OF THE MOTION TO VACATE AS ONE UNDER
RULE 59(E) WAS PERMISSIBLE, AT LEAST AS AN ORIGINAL MATTER, AND WE WILL
ACCEPT THAT CHARACTERIZATION HERE.  EVEN IF THIS MADE THE FIRST NOTICE
OF APPEAL PREMATURE, WE MUST NONETHELESS REVERSE FOR WE BELIEVE THE
COURT OF APPEALS TO HAVE BEEN IN ERROR IN SO NARROWLY READING THE
SECOND NOTICE. 

THE DEFECT IN THE SECOND NOTICE OF APPEAL DID NOT MISLEAD OR
PREJUDICE THE RESPONDENT.  WITH BOTH NOTICES OF APPEAL BEFORE IT (EVEN
GRANTING THE ASSERTED INEFFECTIVENESS OF THE FIRST), THE COURT OF
APPEALS SHOULD HAVE TREATED THE APPEAL FROM THE DENIAL OF THE MOTIONS
AS AN EFFECTIVE, ALTHOUGH INEPT, ATTEMPT TO APPEAL FROM THE JUDGMENT
SOUGHT TO BE VACATED.  TAKING THE TWO NOTICES AND THE APPEAL PAPERS
TOGETHER, PETITIONER'S INTENTION TO SEEK REVIEW OF BOTH THE DISMISSAL
AND THE DENIAL OF THE MOTIONS WAS MANIFEST.  NOT ONLY DID BOTH PARTIES
BRIEF AND ARGUE THE MERITS OF THE EARLIER JUDGMENT ON APPEAL, BUT
PETITIONER'S STATEMENT OF POINTS ON WHICH SHE INTENDED TO RELY ON
APPEAL, SUBMITTED TO BOTH RESPONDENT AND THE COURT PURSUANT TO RULE,
SIMILARLY DEMONSTRATED THE INTENT TO CHALLENGE THE DISMISSAL. 

IT IS TOO LATE IN THE DAY AND ENTIRELY CONTRARY TO THE SPIRIT OF THE
FEDERAL RULES OF CIVIL PROCEDURE FOR DECISIONS ON THE MERITS TO BE
AVOIDED ON THE BASIS OF SUCH MERE TECHNICALITIES.  "THE FEDERAL RULES
REJECT THE APPROACH THAT PLEADING IS A GAME OF SKILL IN WHICH ONE
MISSTEP BY COUNSEL MAY BE DECISIVE TO THE OUTCOME AND ACCEPT THE
PRINCIPLE THAT THE PURPOSE OF PLEADING IS TO FACILITATE A PROPER
DECISION ON THE MERITS."  CONLEY V. GIBSON, 355 U.S. 41, 48.  THE RULES
THEMSELVES PROVIDE THAT THEY ARE TO BE CONSTRUED "TO SECURE THE JUST,
SPEEDY, AND INEXPENSIVE DETERMINATION OF EVERY ACTION."  RULE 1. 

THE COURT OF APPEAL ALSO ERRED IN AFFIRMING THE DISTRICT COURT'S
DENIAL OF PETITIONER'S MOTION TO VACATE THE JUDGMENT IN ORDER TO ALLOW
AMENDMENT OF THE COMPLAINT.  AS APPEARS FROM THE RECORD, THE AMENDMENT
WOULD HAVE DONE NO MORE THAN STATE AN ALTERNATIVE THEORY FOR RECOVERY. 

RULE 15(A) DECLARES THAT LEAVE TO AMEND "SHALL BE FREELY GIVEN WHEN
JUSTICE SO REQUIRES"; THIS MANDATE IS TO BE HEEDED.  SEE GENERALLY, 3
MOORE, FEDERAL PRACTICE (2D ED. 1948), PARAS. 15.08, 15.10.  IF THE
UNDERLYING FACTS OR CIRCUMSTANCES RELIED UPON BY A PLAINTIFF MAY BE A
PROPER SUBJECT OF RELIEF, HE OUGHT TO BE AFFORDED AN OPPORTUNITY TO
TEST HIS CLAIM ON THE MERITS.  IN THE ABSENCE OF ANY APPARENT OR
DECLARED REASON - SUCH AS UNDUE DELAY, BAD FAITH OR DILATORY MOTIVE ON
THE PART OF THE MOVANT, REPEATED FAILURE TO CURE DEFICIENCIES BY
AMENDMENTS PREVIOUSLY ALLOWED, UNDUE PREJUDICE TO THE OPPOSING PARTY BY
VIRTUE OF ALLOWANCE OF THE AMENDMENT, FUTILITY OF AMENDMENT, ETC. - THE
LEAVE SOUGHT SHOULD, AS THE RULES REQUIRE, BE "FREELY GIVEN."  OF
COURSE, THE GRANT OR DENIAL OF AN OPPORTUNITY TO AMEND IS WITHIN THE
DISCRETION OF THE DISTRICT COURT, BUT OUTRIGHT REFUSAL TO GRANT THE
LEAVE WITHOUT ANY JUSTIFYING REASON APPEARING FOR THE DENIAL IS NOT AN
EXERCISE OF DISCRETION; IT IS MERELY ABUSE OF THAT DISCRETION AND
INCONSISTENT WITH THE SPIRIT OF THE FEDERAL RULES. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF
APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  RULE 59(E) PROVIDES: 

"A MOTION TO ALTER OR AMEND THE JUDGMENT SHALL BE SERVED NOT LATER
THAN 10 DAYS AFTER ENTRY OF THE JUDGMENT." 

RULE 60(B) PROVIDES IN RELEVANT PART: 

"ON MOTION AND UPON SUCH TERMS AS ARE JUST, THE COURT MAY RELIEVE A
PARTY OR HIS LEGAL REPRESENTATIVE FROM A FINAL JUDGMENT, ORDER, OR
PROCEEDING FOR THE FOLLOWING REASONS: (1) MISTAKE, INADVERTENCE,
SURPRISE, OR EXCUSABLE NEGLECT  ...  OR (6) ANY OTHER REASON JUSTIFYING
RELIEF FROM THE OPERATION OF THE JUDGMENT  ...  .  A MOTION UNDER THIS
SUBDIVISION (B) DOES NOT AFFECT THE FINALITY OF A JUDGMENT OR SUSPEND
ITS OPERATION  ...  ." 

FN2  RULE 73(A) PROVIDES IN RELEVANT PART: 

"THE RUNNING OF THE TIME FOR APPEAL IS TERMINATED BY A TIMELY MOTION
MADE PURSUANT TO ANY OF THE RULES HEREINAFTER ENUMERATED, AND THE FULL
TIME FOR APPEAL FIXED IN THIS SUBDIVISION COMMENCES TO RUN AND IS TO BE
COMPUTED FROM THE ENTRY OF ANY OF THE FOLLOWING ORDERS MADE UPON A
TIMELY MOTION UNDER SUCH RULES  ...  GRANTING OR DENYING A MOTION UNDER
RULE 59 TO ALTER OR AMEND THE JUDGMENT ...  ." 

SEPARATE MEMORANDUM OF MR. JUSTICE HARLAN, IN WHICH MR. JUSTICE
WHITE, JOINS. 

I AGREE WITH THE COURT AS TO THE DISMISSAL OF PETITIONER'S APPEAL BY
THE COURT OF APPEALS.  HOWEVER, AS TO HER MOTION TO VACATE THE ORDER OF
THE DISTRICT COURT AND FOR LEAVE TO AMEND THE COMPLAINT, I BELIEVE SUCH
MATTERS ARE BEST LEFT WITH THE COURTS OF APPEALS, AND I WOULD DISMISS
THE WRIT OF CERTIORARI, IN THAT RESPECT, AS IMPROVIDENTLY GRANTED. 
..END :




















PENSICK & GORDON, INC. V. CALIFORNIA MOTOR EXPRESS 371 U.S. 184 


NO. 222.  DECIDED DECEMBER 3, 1962.  - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW: 302 F.2D 391. 


PENSICK & GORDON, INC., V. CALIFORNIA MOTOR EXPRESS ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
CONSIDERATION IN LIGHT OF HEWITT-ROBINS INC. V. EASTERN FREIGHT-WAYS,
INC., ANTE, P. 84. 

MR. JUSTICE HARLAN, MR. JUSTICE STEWART, AND MR. JUSTICE WHITE WOULD
AFFIRM THE JUDGMENT BELOW FOR THE REASONS GIVEN IN THE DISSENTING
OPINION IN HEWITT-ROBINS. 
..END :










LEE V. PEEK 371 U.S. 184 


NO. 426.  DECIDED DECEMBER 3, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 240 S.C. 203, 125 S.E.2D 353. 


LEE V. PEEK ET AL. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

PER CURIAM 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BUCKLES V. PEOPLES GAS LIGHT & COKE CO. 371 U.S. 185 


NO. 442.  DECIDED DECEMBER 3, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 24 ILL. 2D 520, 182 N.E.2D 169. 


BUCKLES ET AL. V. PEOPLES GAS LIGHT & COKE CO. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















STONYBROOK, INC., V. CONNECTICUT 371 U.S. 185. 


NO. 470.  DECIDED DECEMBER 3, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 149 CONN. 492, 181 A.2D 601. 


STONYBROOK, INC., V. CONNECTICUT. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















AHOYIAN V. MASSACHUSETTS TURNPIKE AUTHORITY 371 U.S. 186 


NO. 473.  DECIDED DECEMBER 3, 1962.  - 211 F. SUPP. 668, AFFIRMED. 


AHOYIAN ET AL. V. MASSACHUSETTS TURNPIKE AUTHORITY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















NAPIER V. UNITED STATES 371 U.S. 186 


NO. 452, MISC.  DECIDED DECEMBER 3, 1962.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW: 298 F.2D 445. 


NAPIER V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















UNITED STATES V. SAMPSON 371 U.S. 75. 


NO. 69.  ARGUED OCTOBER 18, 1962.  - DECIDED NOVEMBER 19, 1962.  -
REVERSED. 


APPELLEES WERE INDICTED IN A FEDERAL DISTRICT COURT FOR USING THE
MAILS TO DEFRAUD AND CONSPIRING TO DO SO, IN VIOLATION OF 18 U.S.C.
SECS. 1341 AND 371.  THE INDICTMENT ALLEGED THAT, AFTER APPELLEES'
SALESMEN HAD FRAUDULENTLY REPRESENTED THAT APPELLEES WOULD HELP
BUSINESSMEN TO OBTAIN LOANS OR SELL THEIR BUSINESSES AND HAD OBTAINED
APPLICATIONS FOR SUCH SERVICES AND ADVANCE PAYMENTS THEREFOR, APPELLEES
MAILED ACCEPTANCES OF SUCH APPLICATIONS TO THE VICTIMS, IN ORDER TO
LULL THEM INTO BELIEVING THAT THE SERVICES WOULD BE PERFORMED.  THE
DISTRICT COURT DISMISSED THE INDICTMENT ON THE GROUND THAT, SINCE THE
MONEY HAD ALREADY BEEN OBTAINED BEFORE THE ACCEPTANCES WERE MAILED,
THESE MAILINGS COULD NOT HAVE BEEN "FOR THE PURPOSE OF EXECUTING" THE
FRAUDULENT SCHEME, WITHIN THE MEANING OF SEC. 1341.  HELD:  THE
JUDGMENT IS REVERSED.  PP. 76-81. 

(A)  THIS CASE IS PROPERLY IN THIS COURT ON DIRECT APPEAL BY THE
GOVERNMENT UNDER 18 U.S.C.  SEC. 3731.  P. 76. 

(B)  IT CANNOT BE HELD THAT SUCH A DELIBERATE AND PLANNED USE OF THE
MAILS BY DEFENDANTS ENGAGED IN A FRAUDULENT SCHEME IN PURSUANCE OF A
PREVIOUSLY FORMULATED PLAN COULD NOT, IF ESTABLISHED BY EVIDENCE, BE
FOUND BY A JURY UNDER PROPER INSTRUCTIONS TO BE "FOR THE PURPOSE OF
EXECUTING" A FRAUDULENT SCHEME, WITHIN THE MEANING OF SEC. 1341, AND
THE DISTRICT COURT ERRED IN DISMISSING THE SUBSTANTIVE COUNTS.  KANN V.
UNITED STATES, 323 U.S. 88, AND PARR V. UNITED STATES, 363 U.S. 370,
DISTINGUISHED.  PP. 76-81. 

(C)  SINCE THE CONSPIRACY COUNT ON ITS FACE PROPERLY CHARGED A
SEPARATE OFFENSE AGAINST EACH OF THE DEFENDANTS, ITS DISMISSAL ALSO WAS
ERROR.  P. 81. 

UNITED STATES V. SAMPSON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE APPELLEES WERE INDICTED IN A UNITED STATES DISTRICT COURT ON
CHARGES THAT THEY HAD USED THE MAILS "FOR THE PURPOSE OF EXECUTING" A
FRAUDULENT SCHEME IN VIOLATION OF 18 U.S.C. SEC.  1341 (FN1) AND THAT
THEY HAD CONSPIRED TO SO USE THE MAILS.  (FN2)  IT IS CLEAR THAT THE
ALLEGATIONS, IF PROVED, WOULD SHOW THAT A FRAUDULENT SCHEME EXISTED AND
THAT THE MAILINGS CHARGED IN FACT OCCURRED.  THE DISTRICT COURT
DISMISSED 34 OF THE COUNTS, HOWEVER, ON THE GROUND THAT THE FACTS
ALLEGED SHOWED THAT THE MAILS WERE NOT USED "FOR THE PURPOSE OF
EXECUTING" THE ALLEGED SCHEME, AS REQUIRED BY THE STATUTE.  THE COURT
ALSO DISMISSED THE CONSPIRACY COUNT WITHOUT GIVING ADDITIONAL REASONS. 
THE CASE IS PROPERLY HERE ON DIRECT APPEAL BY THE GOVERNMENT UNDER 18
U.S.C. SEC. 3731.  THE ONLY QUESTION WE MUST DECIDE WITH REFERENCE TO
THE 34 SUBSTANTIVE COUNTS IS WHETHER THE ALLEGATIONS IN THE INDICTMENT
WERE SUFFICIENT TO PERMIT A JURY TO FIND THAT THE MAILS WERE USED "FOR
THE PURPOSE OF EXECUTING" THE FRAUDULENT SCHEME.  WHETHER THE
INDICTMENT SUFFICIENTLY CHARGES THAT THE MAILS WERE SO USED DEPENDS
UPON ITS ALLEGATIONS. 

IN BRIEF SUMMARY, THESE ALLEGATIONS ARE: 

THE INDIVIDUAL DEFENDANTS WERE OFFICERS, DIRECTORS, AND EMPLOYEES OF
A LARGE, NATIONWIDE CORPORATION, ALSO A DEFENDANT, WITH REGIONAL
OFFICES IN VARIOUS STATES.  THE DEFENDANTS PURPORTED TO BE ABLE TO HELP
BUSINESSMEN OBTAIN LOANS OR SELL OUT THEIR BUSINESSES.  ALTHOUGH LAVISH
PROMISES WERE FREELY GIVEN, THE DEFENDANTS DID NOT INTEND TO AND IN
FACT DID NOT MAKE ANY SUBSTANTIAL EFFORTS TO PERFORM THESE PROMISED
SERVICES.  AS A PART OF THIS SCHEME, THE DEFENDANTS SECURED SALESMEN
WHO WERE TRAINED TO DECEIVE THOSE WITH WHOM THEY DEALT BY INNUENDOS,
HALF-TRUTHS, AND FALSE STATEMENTS.  (FN3)  THESE DEFENDANTS, ACCORDING
TO THE ALLEGATIONS, WERE NOT MERE SMALL-TIME, SPORADIC SWINDLERS BUT
RATHER THEY HAVE DELIBERATELY PLANNED AND DEVISED A WELL-INTEGRATED,
LONG-RANGE, AND EFFECTIVE SCHEME FOR THE USE OF PROPAGANDA, SALESMEN,
AND OTHER TECHNIQUES TO SOFTEN UP AND THEN CHEAT THEIR VICTIMS ONE BY
ONE.  UNDER THE PLAN, PERSONAL CALLS WERE MADE UPON PROSPECTS WHO WERE
URGED BY FALSE AND FRAUDULENT REPRESENTATIONS TO SIGN APPLICATIONS
ASKING DEFENDANTS TO HELP THEM OBTAIN LOANS OR SELL THEIR BUSINESSES. 
THE SALESMEN FURTHER URGED PROSPECTS, MANY TIMES SUCCESSFULLY, TO GIVE
A CHECK FOR AN "ADVANCE FEE," ALL BEING ASSURED THAT IF THEIR
APPLICATIONS WERE NOT ACCEPTED AT THE REGIONAL OFFICE THE "ADVANCE FEE"
WOULD BE REFUNDED.  PAYMENTS OF THE FEES WERE PROMPTLY CONVERTED BY THE
SALESMEN INTO CASHIERS' CHECKS ON LOCAL BANKS AND THEN FORWARDED WITH
THE APPLICATIONS TO THE CORPORATE REGIONAL OFFICES WHERE ALL
APPLICATIONS, AS A PART OF THE PLAN, WERE ACCEPTED IF SIGNED AND
ACCOMPANIED BY A CHECK FOR THE RIGHT AMOUNT.  THE FEES WERE IMMEDIATELY
DEPOSITED IN THE DEFENDANTS' BANK ACCOUNT.  ALTHOUGH THE MONEY HAD
ALREADY BEEN OBTAINED, THE PLAN STILL CALLED FOR A MAILING OF THE
ACCEPTED APPLICATION TOGETHER WITH A FORM LETTER TO THE VICTIMS "FOR
THE PURPOSE OF LULLING SAID VICTIMS BY REPRESENTING THAT THEIR
APPLICATIONS HAD BEEN ACCEPTED AND THAT THE DEFENDANTS WOULD THEREFORE
PERFORM FOR SAID VICTIMS THE VALUABLE SERVICES WHICH THE DEFENDANTS HAD
FALSELY AND FRAUDULENTLY REPRESENTED THAT THEY WOULD PERFORM."  (FN4)
IT WAS FURTHER A PART OF THE SCHEME TO COMPILE RUDIMENTARY FINANCIAL
DATA AND FORWARD IT TO VARIOUS LENDING AGENCIES AND TO INFORM THE
VICTIMS OF THIS FACT IN AN ATTEMPT TO CONVINCE THEM THAT THEY HAD NOT
BEEN DEFRAUDED AND THAT THE DEFENDANTS WERE PERFORMING MEANINGFUL
SERVICES ON THEIR BEHALVES.  MOREOVER, UNDER THE PLAN DEFENDANTS, WHILE
REFUSING TO REFUND THE FEE, PRETENDED TO INVESTIGATE COMPLAINTS FROM
THEIR VICTIMS AND ENCOURAGED THEIR SALESMEN TO DENY HAVING MADE FALSE
REPRESENTATIONS, ALL THE TIME SEEKING BY FALSE AND FRAUDULENT
STATEMENTS TO MAKE THE VICTIMS BELIEVE THAT THE DEFENDANTS HAD
FAITHFULLY PERFORMED AND WOULD CONTINUE TO PERFORM THE PROMISED
SERVICES.  IN SHORT, THE INDICTMENT ALLEGED THAT THE SCHEME, AS
ORIGINALLY PLANNED BY THE DEFENDANTS AND AS ACTUALLY CARRIED OUT,
INCLUDED FRAUDULENT ACTIVITIES BOTH BEFORE AND AFTER THE VICTIMS HAD
ACTUALLY GIVEN OVER THEIR MONEY TO THE DEFENDANTS.  OF COURSE, NONE OF
THESE CHARGES HAVE BEEN ESTABLISHED BY EVIDENCE, BUT AT THIS STAGE OF
THE PROCEEDINGS THE INDICTMENT MUST BE TESTED BY ITS SUFFICIENCY TO
CHARGE AN OFFENSE. 

THE USE OF THE MAILS RELIED ON IN THE 34 DISMISSED COUNTS WAS THE
MAILING BY THE DEFENDANTS OF THEIR ACCEPTANCES OF THE VICTIMS'
APPLICATIONS FOR THEIR SERVICES.  AS CONCEDED BY THE GOVERNMENT, PRIOR
TO EACH MAILING OF AN ACCEPTANCE TO A VICTIM THE DEFENDANTS HAD
OBTAINED ALL THE MONEY THEY EXPECTED TO GET FROM THAT VICTIM.  THE
DISTRICT JUDGE'S REASON FOR HOLDING THAT THESE COUNTS DID NOT CHARGE A
FEDERAL OFFENSE WAS THAT, SINCE THE MONEY HAD ALREADY BEEN OBTAINED BY
THE DEFENDANTS BEFORE THE ACCEPTANCES WERE MAILED, THESE MAILINGS COULD
NOT HAVE BEEN "FOR THE PURPOSE OF EXECUTING" THE SCHEME.  FOR THIS
HOLDING THE COURT RELIED CHIEFLY ON KANN V. UNITED STATES, 323 U.S. 88
(1944), AND PARR V. UNITED STATES, 363 U.S. 370 (1960). 

IN KANN, THE DEFENDANTS DEFRAUDED THEIR CORPORATE EMPLOYER IN MATTERS
CONFINED TO THEIR LOCAL REGION.  AS A PART OF THEIR SCHEME, THE
DEFENDANTS HAD FRAUDULENTLY OBTAINED CHECKS PAYABLE TO THEM WHICH WERE
CASHED OR DEPOSITED AT A BANK.  THE USE OF THE MAILS CHARGED AS A
VIOLATION OF THE FEDERAL STATUTE WAS THE MAILING OF THE CHECKS FOR
COLLECTION BY THE BANKS WHICH CASHED THEM TO THE BANKS UPON WHICH THEY
WERE DRAWN.  PRIOR TO THAT MAILING, THE COURT FOUND, THE DEFENDANTS HAD
OBTAINED THE MONEY THEY SOUGHT, AND AS FAR AS THEY WERE CONCERNED THEIR
PLAN HAD REACHED ITS FRUITION AND COME TO A COMPLETE REST.  THE SCHEME,
AS THE COURT VIEWED IT, HAD CONTEMPLATED NO MORE.   THE MAILING WAS
DONE BY OUTSIDERS, THE BANKS, WHICH HAD NO CONNECTION WHATSOEVER WITH
THE FRAUD.  THE CHECKS WERE MAILED FOR THE BANKS' OWN PURPOSES AND NOT
IN ANY WAY FOR THE FURTHERING OF THE FRAUDULENT SCHEME.  IN THE COURT'S
VIEW IT WAS IMMATERIAL TO THE CONSUMMATION OF THE DEFENDANTS' SCHEME
HOW OR WHETHER THE BANKS WHICH HAD CASHED THE CHECKS SOUGHT TO COLLECT
THEM. 

IN PARR, THE SECOND CASE UPON WHICH THE DISTRICT COURT RELIED, THE
DEFENDANTS HAD OBTAINED GASOLINE AND OTHER PRODUCTS AND SERVICES FOR
THEMSELVES BY THE USE OF THE CREDIT CARD OF A SCHOOL DISTRICT WHICH HAD
AUTHORIZED THE DEFENDANTS TO USE THE CARD FOR THE DISTRICT'S PURPOSES
ONLY.  THE MAILINGS COMPLAINED OF IN THE PARR CASE WERE TWO INVOICES
SENT BY THE OIL COMPANY TO THE DISTRICT AND THE DISTRICT'S CHECK MAILED
BACK IN PAYMENT.  AGAIN THE COURT WAS ABLE TO FIND THAT THE MAILINGS BY
THE OUTSIDERS WERE NOT AN INTEGRAL PART OF THE SCHEME AS PLANNED AND
EXECUTED BY THE DEFENDANTS AND THAT, AS A MATTER OF FACT, IT WAS
COMPLETELY IMMATERIAL TO THEM WHAT THE OIL COMPANY DID ABOUT COLLECTING
ITS BILL. 

WE ARE UNABLE TO FIND ANYTHING IN EITHER THE KANN OR THE PARR CASE
WHICH SUGGESTS THAT THE COURT WAS LAYING DOWN AN AUTOMATIC RULE THAT A
DELIBERATE, PLANNED USE OF THE MAILS AFTER THE VICTIMS' MONEY HAD BEEN
OBTAINED CAN NEVER BE "FOR THE PURPOSE OF EXECUTING" THE DEFENDANTS'
SCHEME.  RATHER THE COURT FOUND ONLY THAT UNDER THE FACTS IN THOSE
CASES THE SCHEMES HAD BEEN FULLY EXECUTED BEFORE THE MAILS WERE USED. 
AND COURT OF APPEALS DECISIONS RENDERED BOTH BEFORE AND AFTER KANN HAVE
FOLLOWED THE VIEW THAT SUBSEQUENT MAILINGS CAN IN SOME CIRCUMSTANCES
PROVIDE THE BASIS FOR AN INDICTMENT UNDER THE MAIL FRAUD STATUTES. 
(FN5) 

MOREOVER, AS POINTED OUT ABOVE, THE INDICTMENT IN THIS CASE ALLEGED
THAT THE DEFENDANTS' SCHEME CONTEMPLATED FROM THE START THE COMMISSION
OF FRAUDULENT ACTIVITIES WHICH WERE TO BE AND ACTUALLY WERE CARRIED OUT
BOTH BEFORE AND AFTER THE MONEY WAS OBTAINED FROM THE VICTIMS.  THE
INDICTMENT SPECIFICALLY ALLEGED THAT THE SIGNED COPIES OF THE ACCEPTED
APPLICATIONS AND THE COVERING LETTERS WERE MAILED BY THE DEFENDANTS TO
THE VICTIMS FOR THE PURPOSE OF LULLING THEM BY ASSURANCES THAT THE
PROMISED SERVICES WOULD BE PERFORMED.  WE CANNOT HOLD THAT SUCH A
DELIBERATE AND PLANNED USE OF THE UNITED STATES MAILS BY DEFENDANTS
ENGAGED IN A NATIONWIDE, FRAUDULENT SCHEME IN PURSUANCE OF A PREVIOUSLY
FORMULATED PLAN COULD NOT, IF ESTABLISHED BY EVIDENCE, BE FOUND BY A
JURY UNDER PROPER INSTRUCTIONS TO BE "FOR THE PURPOSE OF EXECUTING" A
SCHEME WITHIN THE MEANING OF THE MAIL FRAUD STATUTE.  FOR THESE
REASONS, WE HOLD THAT IT WAS ERROR FOR THE DISTRICT COURT TO DISMISS
THESE 34 SUBSTANTIVE COUNTS. 

AT THE TIME THE TRIAL COURT DISMISSED THE SUBSTANTIVE COUNTS IT ALSO
DISMISSED THE CONSPIRACY COUNT WITHOUT STATING ADDITIONAL REASONS.  IN
THIS COURT, HOWEVER, IT IS CONTENDED THAT THE CONSPIRACY COUNT
DUPLICATES THE 34 SUBSTANTIVE COUNTS BECAUSE EACH SUBSTANTIVE COUNT IS
IN REALITY A CONSPIRACY COUNT.  ON THIS BASIS, IT IS ARGUED THAT THERE
IS AN UNJUSTIFIED PYRAMIDING OF CONSPIRACY COUNTS WHICH COULD BE USED
BY THE GOVERNMENT IN SUCH A WAY AS TO DENY THE DEFENDANTS, IN
PARTICULAR THE SALESMEN, A FAIR TRIAL.  WE CANNOT ANTICIPATE ARGUMENTS
THAT WOULD BE MORE APPROPRIATELY ADDRESSED TO THE TRIAL COURT SHOULD
THE CONDUCT OR THE RESULT OF THE TRIAL DENY ANY OF THE DEFENDANTS THEIR
RIGHTS.  SINCE THE CONSPIRACY COUNT ON ITS FACE, LIKE THE SUBSTANTIVE
COUNTS ON THEIR FACES, PROPERLY CHARGES A SEPARATE OFFENSE AGAINST EACH
OF THE DEFENDANTS, IT WAS ALSO ERROR TO DISMISS THE CONSPIRACY COUNT. 
REVERSED. 

FN1  "SEC.  1341.  FRAUDS AND SWINDLES. 

"WHOEVER, HAVING DEVISED OR INTENDING TO DEVISE ANY SCHEME OR
ARTIFICE TO DEFRAUD, OR FOR OBTAINING MONEY OR PROPERTY BY MEANS OF
FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS, OR PROMISES,  ...  FOR
THE PURPOSE OF EXECUTING SUCH SCHEME OR ARTIFICE OR ATTEMPTING SO TO
DO, PLACES IN ANY POST OFFICE OR AUTHORIZED DEPOSITORY FOR MAIL MATTER,
ANY MATTER OR THING WHATEVER TO BE SENT OR DELIVERED BY THE POST OFFICE
DEPARTMENT,  ...  OR KNOWINGLY CAUSES TO BE DELIVERED BY MAIL ACCORDING
TO THE DIRECTION THEREON,  ...  ANY SUCH MATTER OR THING, SHALL BE
FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR
BOTH." 

FN2  18 U.S.C. SEC. 371. 

FN3  "IT WAS A FURTHER PART OF THE SAID SCHEME AND ARTIFICE TO
DEFRAUD THAT THE DEFENDANTS WOULD SECURE SALESMEN  ...  WHO WOULD BE
AGREEABLE TO THE USE OF UNETHICAL SALES TALKS AND HIRE AND USE THEM AS
FIELD REPRESENTATIVES, AND IT WAS A FURTHER PART OF THE SCHEME TO TEACH
SUCH SALESMEN THAT PROSPECTIVE VICTIMS WERE AT A COMPLETE DISADVANTAGE
AND WOULD JUMP AND ACT LIKE PUPPETS IF THE SALESMAN HANDLED THE CLIENT
RIGHT, AND TO TEACH THEM TO TRY AND IMPRESS UPON THE VICTIMS THAT SAID
SALESMAN WAS AN EXPERT; TO TEACH SALESMEN TO TRY AND CONFUSE VICTIMS
AND TO LEAD THEM INTO BELIEVING THAT LSC WAS A LENDING COMPANY  ...
AND TO TEACH SAID SALESMEN THAT LSC AND THE DEFENDANTS DID NOT CARE HOW
SUCH SALESMEN SOLD A CONTRACT TO A VICTIM AND THAT IT WAS PERFECTLY ALL
RIGHT FOR A SALESMAN TO USE INNUENDOS AND HALF-TRUTHS  ...  ."  RECORD,
PP. 4-5. 

FN4  RECORD, P. 8.  IT WAS ALSO CHARGED THAT A FURTHER PURPOSE OF THE
MAILING WAS TO INFORM THE VICTIMS THAT THEY COULD NOT OBTAIN A REFUND
OF THEIR FEES, THAT THE CONTRACT WAS NOT CANCELLABLE, AND THAT THE
VICTIM HAD NO RECOURSE FOR RETRIEVING HIS MONEY.  IBID. 

FN5  SEE, E.G., UNITED STATES V. LOWE, 115 F.2D 596 (C.A. 7TH CIR.
1940), CERT. DENIED, 311 U.S. 717 (1941); UNITED STATES V. RIEDEL, 126
F.2D 81 (C.A. 7TH CIR. 1942); CLARK V. UNITED STATES, 93 U.S. APP. D.C.
61, 208 F.2D 840, CERT. DENIED, 346 U.S. 865 (1953). 

MR. JUSTICE DOUGLAS, DISSENTING. 

I THINK THAT TODAY THE COURT MATERIALLY QUALIFIES PARR V. UNITED
STATES, 363 U.S. 370.  THERE, IN THE FACE OF THE JURY'S VERDICT, WE
HELD THAT A CHECK ON A THIRD PARTY'S FUNDS, MAILED TO PAY FOR PROPERTY
AFTER THE PROPERTY HAD BEEN FRAUDULENTLY "OBTAINED," COULD NOT BE "FOR
THE PURPOSE OF EXECUTING" A SCHEME TO OBTAIN THE PROPERTY.  AS THE
STATUTE MAKES CLEAR, (FN1) THERE IS ONLY ONE FOUNDATION FOR PROSECUTION
UNDER THE STATUTE AND THAT IS USING THE MAILS "FOR THE PURPOSE OF
EXECUTING" THE VARIOUS SCHEMES DESCRIBED IN THE ACT.  SO FAR AS IS
RELEVANT HERE, THOSE SCHEMES ARE EITHER TO DEFRAUD OR TO OBTAIN MONEY
BY FALSE OR FRAUDULENT REPRESENTATIONS. 

IT IS POSSIBLE THAT IN THIS CASE INDICTMENTS COULD BE DRAWN WHICH
CHARGE THE USE OF MAILS TO LULL EXISTING VICTIMS INTO A FEELING OF
SECURITY SO THAT A SCHEME TO OBTAIN MONEY FROM OTHER VICTIMS COULD BE
SUCCESSFULLY CONSUMMATED.  THE OPINION DOES NOT SO CONSTRUE THE
INDICTMENT BUT CONCLUDES, AS I READ IT, THAT THE MERE LULLING OF
EXISTING VICTIMS INTO A SENSE OF SECURITY IS ENOUGH.  (FN2) IF THAT IS
ENOUGH, THEN IN THE PARR CASE IT WOULD SEEM THAT WE SHOULD HAVE
SUSTAINED THE CONVICTION BECAUSE THE DEFENDANTS THERE MAY WELL HAVE
WANTED THE THIRD PARTY TO PAY FOR THE PROPERTY THAT HAD BEEN
FRAUDULENTLY OBTAINED SO THAT THEY WOULD NOT BE APPREHENDED.  IN THE
PARR CASE, AS HERE, THERE WAS "A CONTINUING COURSE OF CONDUCT" (TO
BORROW A PHRASE FROM THE DISSENT, 363 U.S., AT 402) NOT ONLY TO OBTAIN
MONEY FRAUDULENTLY BUT ALSO TO CONCEAL THE FRAUD SO THAT FUTURE
PECULATIONS MIGHT BE POSSIBLE.  IN PARR, FUTURE PECULATIONS FROM THE
SAME TAXPAYERS WERE PART OF THE SCHEME.  HERE THERE IS NO SUGGESTION
THAT THOSE PREVIOUSLY DEFRAUDED WERE TO BE DEFRAUDED A SECOND TIME. 
(FN3)  THE MAILS WERE USED ONLY TO TRANQUILIZE THOSE ALREADY
DEFRAUDED.  OR AT LEAST THAT IS THE ONLY WAY I CAN READ THIS
INDICTMENT.  IT IS THEREFORE A MUCH WEAKER CASE THAN PARR.    WE SHOULD
NOT STRUGGLE TO UPHOLD POORLY DRAWN COUNTS.  TO DO SO ONLY ENCOURAGES
MORE FEDERAL PROSECUTION IN FIELDS THAT ARE ESSENTIALLY LOCAL.    FN1
"WHOEVER, HAVING DEVISED  ...  A SCHEME  ...  TO DEFRAUD, OR FOR
OBTAINING MONEY  ...  BY MEANS OF FALSE OR FRAUDULENT  ...
REPRESENTATIONS, OR PROMISES,  ...  FOR THE PURPOSE OF EXECUTING SUCH
SCHEME  ...  PLACES IN ANY POST OFFICE  ...  ANY MATTER  ...  TO BE
SENT  ...  BY THE POST OFFICE DEPARTMENT  ...  SHALL BE GUILTY OF A
CRIME  ...  ."  18 U.S.C. SEC. 1341. 

FN2  THE INDICTMENT, AS I READ IT, CHARGES ON THIS PHASE ONLY
"LULLING SAID VICTIMS" INTO A SENSE OF SECURITY. 

FN3  THE SOLICITOR GENERAL STATES IN HIS BRIEF: 

"THE GOVERNMENT CONCEDED THAT, AFTER OBTAINING THE ADVANCE FEE, THE
DEFENDANTS HAD NO INTENTION OF EARNING THE BALANCE DUE ON THE SERVICE
CONTRACTS.  NO FURTHER PAYMENTS WERE EXPECTED TO BE GOT FROM THE
VICTIM." 
..END :










HEWITT-ROBINS INCORPORATED V. EASTERN FREIGHT-WAYS, INC. 371 U.S. 84 


NO. 37.  ARGUED OCTOBER 11, 1962.  - DECIDED NOVEMBER 19, 1962.  - 293
F.2D 205, REVERSED. 


PETITIONER BROUGHT A COMMON LAW ACTION IN A FEDERAL DISTRICT COURT
AGAINST RESPONDENT, A COMMON CARRIER BY MOTOR VEHICLE, TO RECOVER THE
DIFFERENCE BETWEEN CHARGES MADE BY RESPONDENT AT ITS ESTABLISHED
INTERSTATE RATE AND LOWER CHARGES ESTABLISHED BY ITS INTRASTATE RATE ON
SHIPMENTS FROM BUFFALO, N.Y., TO NEW YORK CITY.  PETITIONER ALLEGED
THAT IT MADE THE SHIPMENTS WITHOUT SPECIFYING THE ROUTES AND THAT
RESPONDENT VIOLATED ITS DUTY BY SHIPPING THE GOODS OVER ITS ESTABLISHED
INTERSTATE ROUTE AT ITS HIGHER RATE RATHER THAN OVER ITS ESTABLISHED
INTRASTATE ROUTE AT ITS LOWER RATE.  THE INTERSTATE COMMERCE COMMISSION
FOUND THAT THE PRACTICE WAS UNREASONABLE.  HELD:  THE COMPLAINT STATED
A CAUSE OF ACTION UPON WHICH RELIEF COULD BE GRANTED, AND SUCH RIGHT OF
ACTION WAS SAVED BY SEC. 216(J) OF THE MOTOR CARRIER ACT.  T.I.M.E.
INC. V. UNITED STATES, 359 U.S. 464, DISTINGUISHED.  PP. 84-89. 

HEWITT-ROBINS INCORPORATED V. EASTERN FREIGHT-WAYS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BY A SHIPPER TO RECOVER FROM A MOTOR CARRIER THE
DIFFERENCE IN RATE CHARGES RESULTING FROM A PRACTICE OF THE LATTER OF
CARRYING UNROUTED INTRASTATE SHIPMENTS ON ITS INTERSTATE ROUTES AT
HIGHER RATES THAN THOSE APPLICABLE TO ITS AVAILABLE INTRASTATE ROUTES. 
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK STAYED THE
ACTION AWAITING A FINDING BY THE INTERSTATE COMMERCE COMMISSION AS TO
THE REASONABLENESS OF THE PRACTICE.  THE COMMISSION FOUND IT
UNREASONABLE* UNDER THE MOTOR CARRIER ACT, 49 U.S.C. SECS. 301-327, AND
SUBSEQUENTLY THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND
THAT THE ACT NEITHER PROVIDED ANY REPARATION REMEDY NOR PRESERVED ONE
AT COMMON LAW.  187 F. SUPP. 722.  THE COURT OF APPEALS, ONE JUDGE
DISSENTING, AFFIRMED ON THE SAME GROUNDS.  293 F.2D 205.  EACH COURT
BOTTOMED ITS DECISION UPON T.I.M.E. INC. V. UNITED STATES, 359 U.S. 464
(1959).  HAVING SOME DOUBTS AS TO THE APPOSITENESS OF THAT CASE AND
BECAUSE OF THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE
ACT, WE GRANTED CERTIORARI.  368 U.S. 951.  WE HAVE CONCLUDED THAT
T.I.M.E. INC., SUPRA, DOES NOT CONTROL THE ISSUE HERE AND THEREFORE
REVERSE THE JUDGMENTS. 

*302 I.C.C. 173.  RESPONDENT BROUGHT AN ACTION AGAINST THE UNITED
STATES AND THE COMMISSION IN THE DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY, SEEKING TO SET ASIDE THE REPORT AND THE CEASE-AND-DESIST ORDER
ENTERED BY THE COMMISSION.  AFTER THE COMPLAINT WAS FILED THE
COMMISSION AMENDED ITS DISPOSITION BY STRIKING OUT THE CEASE-AND-DESIST
ORDER, LEAVING ONLY ITS DECLARATORY FINDINGS AS TO PAST PRACTICES.  THE
THREE-JUDGE COURT, RELYING UPON OUR DECISION IN UNITED STATES V.
INTERSTATE COMMERCE COMMISSION, 337 U.S. 426 (1949), HELD THAT AS A
THREE-JUDGE COURT IT HAD NO AUTHORITY TO ADJUDICATE THE CONTROVERSY
SINCE NO ORDER WAS UNDER ATTACK.  170 F. SUPP. 848.  DECISION IN THE
ACTION IS NOW HELD IN ABEYANCE BY A SINGLE JUDGE PENDING DISPOSITION OF
THIS LITIGATION.  THUS THE LITIGATION HAS BEEN BIFURCATED INTO TWO
DISTRICT COURTS, WHOSE FURTHER PROCEEDINGS MAY YET BE SEPARATELY
APPEALABLE.  THIS MIGHT HAVE BEEN AVOIDED HAD THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK FOLLOWED THIS COURT'S ADMONITION THAT
"THE COURTS, WHILE RETAINING THE FINAL AUTHORITY TO EXPOUND THE
STATUTE, SHOULD AVAIL THEMSELVES OF THE AID IMPLICIT IN THE AGENCY'S
SUPERIORITY IN GATHERING THE RELEVANT FACTS AND IN MARSHALING THEM INTO
A MEANINGFUL PATTERN," FEDERAL MARITIME BOARD V. ISBRANDTSEN CO., 356
U.S. 481, 498 (1958), RATHER THAN RELYING UPON THE SHIPPER TO FILE AN
ADVERSARY PROCEEDING WITH THE COMMISSION. 

THE PETITIONER ALLEGES THAT BETWEEN JANUARY 1, 1953, AND FEBRUARY 1,
1955, IT DELIVERED NUMEROUS SHIPMENTS OF FOAM RUBBER PADS TO
RESPONDENT, A COMMON CARRIER BY MOTOR VEHICLE, FOR TRANSPORTATION FROM
BUFFALO, N.Y., TO NEW YORK CITY.  IT CLAIMS THAT WHILE THE SHIPMENTS
WERE TENDERED WITHOUT SPECIFYING THE ROUTES OF SHIPMENT THE RESPONDENT,
CONTRARY TO ITS DUTY AS A COMMON CARRIER, SHIPPED THE PADS OVER ITS
INTERSTATE ROUTE AT THE HIGHER TARIFF THAT IT HAD ON FILE WITH THE
INTERSTATE COMMERCE COMMISSION RATHER THAN OVER ITS INTRASTATE ROUTE AT
THE LOWER TARIFF THAT IT HAD ON FILE WITH THE PUBLIC SERVICE COMMISSION
OF NEW YORK.  EXCESS CHARGES IN THE SUM OF $10,000 HAVE BEEN COLLECTED
BY RESPONDENT FOR WHICH PETITIONER PRAYS JUDGMENT. 

THE SOLE ISSUE BEFORE US IS WHETHER THE COMPLAINT STATES A CAUSE OF
ACTION UPON WHICH THE DISTRICT COURT MAY GRANT RELIEF.  THE GIST OF THE
ACTION AS ALLEGED IS THAT THE SHIPPER HAD THE COMMON-LAW RIGHT AND THE
CARRIER OWED IT THE DUTY TO SHIP THE PADS OVER THE CHEAPEST AVAILABLE
ROUTE, NO ADEQUATE JUSTIFICATION FOR NOT SO DOING BEING SHOWN. 
NEVERTHELESS, PETITIONER SAYS, THE CARRIER IN DEROGATION OF THIS
RESPONSIBILITY TRANSPORTED THE PADS AT THE HIGHER RATE AND SUBJECTED
THE SHIPPER TO THE $10,000 DAMAGE. 

NO ATTACK IS MADE UPON EITHER OF THE CARRIER'S PUBLISHED TARIFFS -
BOTH ARE ADMITTEDLY REASONABLE.   THE CONTROVERSY HINGES ENTIRELY UPON
WHETHER THE CARRIER VIOLATED ITS DUTY TO THE SHIPPER IN SELECTING THE
INTERSTATE ROUTE AND THE ACCOMPANYING HIGHER RATE WHICH SUBJECTED THE
SHIPPER TO THE LOSS, I.E., THE DIFFERENCE BETWEEN THE TWO LAWFUL
RATES.  WE BELIEVE THAT THE COMPLAINT STATED A JUSTICIABLE CAUSE OF
ACTION.  THE ISSUE HERE IS A FAR CRY FROM THAT IN T.I.M.E. INC. V.
UNITED STATES, SUPRA.  THERE THE QUESTION, AS STATED BY THE COURT, WAS,
"CAN A SHIPPER OF GOODS BY A CERTIFICATED MOTOR CARRIER CHALLENGE IN
POST-SHIPMENT LITIGATION THE REASONABLENESS OF THE CARRIER'S CHARGES
WHICH WERE MADE IN ACCORDANCE WITH THE TARIFF GOVERNING THE SHIPMENT?" 
359 U.S. 464, 465.  THE COURT DETERMINED THAT SUCH AN ATTACK WAS
FORECLOSED BY THE "SAVING CLAUSE" OF THE ACT, SEC. 216(J), 49 U.S.C.
SEC. 316(J), AS BEING INCONSISTENT WITH THE STATUTORY SCHEME OF
REGULATION.  WE EMPHASIZED THE BUILT-IN PROTECTIONS GIVEN SHIPPERS
AGAINST UNREASONABLE RATES, AT PP. 478-480, CITING THE 30-DAY-NOTICE
PROVISION OF THE ACT, SEC. 217(C), AS WELL AS THE POWER GRANTED THE
COMMISSION UNDER SEC. 216(G) TO SUSPEND RATES FOR SEVEN MONTHS.  THE
COURT CONCLUDED THAT THOSE REMEDIES AMPLY PROTECTED THE SHIPPER AND
THAT THE ALLOWANCE OF A JUDICIAL REMEDY WOULD RESULT IN UNDERCUTTING
THE STABILITY OF THE RATE STRUCTURE WHICH THE STATUTORY PROCEDURES
SOUGHT TO INSURE. 

HERE THE CHALLENGE IS DIRECTED NOT AT THE "REASONABLENESS" OF THE
RATES BUT AT THE CARRIER'S MISROUTING PRACTICE.  THE QUESTION,
THEREFORE, IS NOT ONE OF RATES BUT OF ROUTES.  THE DETERMINATION OF
RAIL CARRIERS' ROUTING PRACTICES HAS LONG BEEN WITHIN THE PRIMARY
JURISDICTION OF THE COMMISSION.   NORTHERN PACIFIC R. CO. V. SOLUM, 247
U.S. 477 (1918).  THIS JURISDICTION IS THE MORE IMPORTANT IN THE CASE
OF MOTOR CARRIER ROUTING WHERE ALTERNATIVE ROUTES ARE GREATER IN BOTH
NUMBER AND VARIETY.  FURTHERMORE, SELECTION OF THE ROUTE IS USUALLY
MADE ON AN AD HOC BASIS, PRECLUDING PRESHIPMENT DETERMINATION OF ITS
REASONABLENESS.  UNLIKE RATE MAKING THERE IS NO STATUTORY PROCEDURE BY
WHICH ROUTING PRACTICES MAY BE CHALLENGED IN ADVANCE OF SHIPMENT.  NOR
IS THE SHIPPER BY TRUCK ACCORDED EVEN THE RIGHT GIVEN THE SHIPPER BY
RAIL, UNDER 49 U.S.C. SEC. 15(8), TO SELECT AND REQUEST A PARTICULAR
ROUTE OF THE CARRIER.  IN VIEW OF THESE WEIGHTY STATUTORY DIFFERENCES
BETWEEN RATE MAKING AND ROUTING PRACTICES THE SURVIVAL OF A DAMAGE
CLAIM FOR MISROUTING APPEARS ENTIRELY CONSISTENT WITH THE ACT.  IT,
THEREFORE, MEETS THE PROVISO OF THE "SAVING CLAUSE" AS WELL AS THE
TEACHING OF T.I.M.E. INC. 

THIS CONCLUSION IS BUTTRESSED BY THE FACT THAT THE ALLOWANCE HERE OF
A DAMAGE ACTION NOWISE HAMPERS THE EFFICIENT ADMINISTRATION OF THE ACT,
UNLIKE THE ALLOWANCE OF SUCH AN ACTION AS TO UNREASONABLE RATES.  A
MISROUTING CLAIM DOES NOT JEOPARDIZE THE STABILITY OF TARIFFS OR OF
CERTIFICATED ROUTES, THE SOLE ISSUE BEING WHETHER THE CARRIER ROUTED
THE SHIPMENT OVER THE CHEAPEST AVAILABLE ROUTE, OR MADE A SHOWING OF
ADEQUATE JUSTIFICATION FOR NOT DOING SO.  MOREOVER, THE ALLOWANCE OF
MISROUTING ACTIONS WOULD HAVE A HEALTHY DETERRENT EFFECT UPON THE
UTILIZATION OF MISROUTING PRACTICES IN THE MOTOR CARRIER FIELD, WHICH,
IN TURN, WOULD MINIMIZE "CEASE AND DESIST" PROCEEDINGS BEFORE THE
COMMISSION.  FINALLY, AND NOT TO BE OVERLOOKED, THE ABSENCE OF ANY
JUDICIAL REMEDY PLACES THE SHIPPER ENTIRELY AT THE MERCY OF THE
CARRIER, CONTRARY TO THE OVERRIDING PURPOSE OF THE ACT.  THE ALLOWANCE
OF SUCH ACTIONS WOULD, ON THE CONTRARY, GIVE NEITHER AN UNFAIR
ADVANTAGE. 

THOSE WHO CONTEND THAT NO JUDICIAL REMEDY IS AVAILABLE PLACE MUCH
WEIGHT ON THE FACT THAT, AS WE HAVE SAID, THE INTERSTATE COMMERCE
COMMISSION HAS PRIMARY JURISDICTION IN ROUTING PRACTICES.  WE PUT NO
SIGNIFICANCE IN WHETHER ONE TAGS THE CLAIM AS "OVERCHARGES" AS
COMMISSIONER EASTMAN APPARENTLY DID IN HIS TESTIMONY BEFORE THE SENATE,
SEE T.I.M.E. INC., SUPRA, AT 477-478, N. 18, OR WHETHER IT IS A
PROCEEDING INVOLVING THE "REASONABLENESS" OF ROUTING PRACTICES.  IN
EITHER CASE THE PROBLEM IS ONE ORIGINALLY WITHIN THE JURISDICTION OF
THE COMMISSION.  TO SAY, HOWEVER, THAT SUCH PRIMARY JURISDICTION
COMPELS THE CONCLUSION THAT THE COURTS ARE WITHOUT POWER TO AWARD
DAMAGES IN EVERY INSTANCE WHERE THE COMMISSION MAY NOT AWARD
REPARATIONS BY NO MEANS FOLLOWS.  INDEED, THE DOCTRINE OF PRIMARY
JURISDICTION IS DESIGNED TO APPLY "WHERE A CLAIM IS ORIGINALLY
COGNIZABLE IN THE COURTS, AND  ...  ENFORCEMENT OF THE CLAIM REQUIRES
THE RESOLUTION OF ISSUES  ...  PLACED WITHIN THE SPECIAL COMPETENCE OF
AN ADMINISTRATIVE BODY  ...  ."  UNITED STATES V. WESTERN PACIFIC R.
CO., 352 U.S. 59, 64 (1956); SEE DAVIS, ADMINISTRATIVE LAW TREATISE,
SEC. 19.01 (1958).  THE PRACTICE OF THE COMMISSION IN MAKING SUCH
DETERMINATION IN THE FIRST INSTANCE, EVEN THOUGH IT HAS NO POWER TO
AWARD REPARATIONS IN A GIVEN CASE, HAS LONG BEEN EXERCISED, BELL POTATO
CHIP CO. V. ABERDEEN TRUCK LINE, 43 M.C.C. 337, 343 (1944), AND IS
SUPPORTED BY A LONG LINE OF CASES.  SEE THOMPSON V. TEXAS MEXICAN R.
CO., 328 U.S. 134 (1946), AND CASES THERE CITED.  BE THIS AS IT MAY,
THE SURVIVAL OF A JUDICIAL REMEDY UNDER THE SAVING CLAUSE OF SEC.
216(J) CANNOT BE DETERMINED ON THE PRESENCE OR ABSENCE IN THE
COMMISSION OF PRIMARY JURISDICTION TO DECIDE THE BASIC QUESTION ON
WHICH RELIEF DEPENDS.  SURVIVAL DEPENDS ON THE EFFECT OF THE EXERCISE
OF THE REMEDY UPON THE STATUTORY SCHEME OF REGULATION.  ACCORDING TO
SEC. 216(J), IF THE REMEDY IS INCONSISTENT WITH THAT SCHEME IT DOES NOT
SURVIVE.  IN T.I.M.E. INC., WE FOUND INCONSISTENCIES AND HENCE NO
JUDICIAL REMEDY SURVIVED.  HERE, AS WE HAVE INDICATED, RATHER THAN
RUNNING INTERFERENCE AGAINST THE ACT THE EXERCISE OF THE JUDICIAL
REMEDY SUPPORTS ITS OVERALL PURPOSES AND IS NOWISE INCONSISTENT WITH
THE CONGRESSIONAL SCHEME EMBODIED WITHIN ITS FOUR CORNERS.  THE REMEDY,
THEREFORE, SURVIVES AND THE JUDGMENT IS REVERSED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART AND MR. JUSTICE WHITE
JOIN, DISSENTING. 

WITH DEFERENCE, I CONSIDER THAT THE T.I.M.E. CASE, 359 U.S. 464,
PLAINLY CONTROLS THIS ONE.  THAT IT DOES CONTROL IS NOT AND COULD
HARDLY BE GAINSAID TO THE EXTENT THAT THE COMPLAINT PURPORTS TO ALLEGE
A STATUTORY CAUSE OF ACTION, THAT IS, ONE BASED ON THE TERMS OF THE
MOTOR CARRIER ACT ITSELF.   T.I.M.E., AT 468-472.  HOWEVER, CONSTRUING
THE COMPLAINT AS ALLEGING ALSO A COMMON-LAW CAUSE OF ACTION, THE COURT
HOLDS THAT SUCH AN ACTION IS "NOT INCONSISTENT" WITH THE MOTOR CARRIER
ACT AND IS THEREFORE PRESERVED BY SEC. 216(J) OF THE STATUTE. 

THE COURT'S DECISION RESTS PRIMARILY ON THE SIGNIFICANCE IT ACCORDS
TO THE EXISTENCE OF CERTAIN ADMINISTRATIVE PROCEDURES AVAILABLE TO
SHIPPERS TO CHALLENGE RATES IN ADVANCE OF THEIR APPLICATION, SEE SECS.
216(G) AND 217(C) OF THE ACT, AND THE LACK OF SUCH PROTECTIVE REMEDIES
IN THE CASE OF ROUTING PRACTICES.  IN ADDITION, THREE FURTHER
CONSIDERATIONS ARE ASSERTED TO SUPPORT ITS CONCLUSION:  (1) A
MISROUTING CLAIM DOES NOT JEOPARDIZE THE STABILITY OF TARIFFS OR OF
CERTIFICATED ROUTES, WHEREAS TO PERMIT ACTIONS ATTACKING THE
REASONABLENESS OF RATES WOULD HAMPER THE EFFICIENT ADMINISTRATION OF
THE ACT; (2) THE ALLOWANCE OF MISROUTING ACTIONS WILL DETER MISROUTING
PRACTICES AND DECREASE THE NUMBER OF "CEASE AND DESIST" PROCEEDINGS
BEFORE THE I.C.C.; (3) THE ABSENCE OF ANY JUDICIAL REMEDY WOULD PUT THE
SHIPPER ENTIRELY AT THE MERCY OF THE CARRIER, CONTRARY TO THE PURPOSE
OF THE MOTOR CARRIER ACT.  THIS REASONING, I SUBMIT, ENTIRELY
MISCONCEIVES THE BASIS OF THE T.I.M.E. DECISION. 

THE RESULT REACHED IN T.I.M.E. BASICALLY RESTED ON TWO INTERDEPENDENT
CONSIDERATIONS: (1) THE COURTS MAY NOT ADJUDICATE A MATTER OVER WHICH
THE COMMISSION HAS BEEN GIVEN PRIMARY JURISDICTION, 359 U.S., AT 473
474; (2) SINCE THE COMMISSION MUST DECIDE WHETHER A RATE IS REASONABLE
AND CONGRESS HAS DENIED IT THE AUTHORITY TO AWARD REPARATIONS FOR PAST
UNREASONABLE CHARGES, TO ALLOW A JUDICIAL REMEDY FOR RECOVERY OF PAST
RATE CHARGES WOULD "PERMIT THE I.C.C. TO ACCOMPLISH INDIRECTLY WHAT
CONGRESS HAS NOT CHOSEN TO GIVE IT THE AUTHORITY TO ACCOMPLISH
DIRECTLY," ID., AT 475. 

BOTH OF THESE FACTORS ARE PRESENT HERE.  THERE CAN BE NO DOUBT THAT
UNDER SEC. 216(B) AND (E) OF THE INTERSTATE COMMERCE ACT THE COMMISSION
HAS PRIMARY JURISDICTION OVER THE COMPLAINED OF MISROUTING PRACTICES,
(FN1) AS INDEED THE COMMISSION'S ACTION TAKEN WITH RESPECT TO THESE
VERY PRACTICES, HEWITT-ROBINS, INC., V. EASTERN FREIGHT-WAYS, INC., 302
I.C.C. 173, AND THE COURT'S OPINION IN THIS CASE SHOW.  NOR IS IT
SUGGESTED THAT THE COMMISSION POSSESSES ANY REPARATIONS AUTHORITY WITH
RESPECT TO SUCH MISROUTING.  THE CONJUNCTION OF THESE FACTORS THUS
BRINGS T.I.M.E., DECIDED ONLY FOUR TERMS AGO, INTO FULL PLAY. 

1.  IT IS TRUE THAT IN THIS INSTANCE THE ACT DOES NOT CONTAIN CERTAIN
PROTECTIVE PROVISIONS AS IN THE CASE OF RATE MAKING.  THIS CANNOT,
HOWEVER, SERVE TO DISTINGUISH T.I.M.E., WHOSE DETERMINATION OF THE
CONGRESSIONAL PURPOSE UNDERLYING THE MOTOR CARRIER ACT WAS BASED ON
CONSIDERATIONS THAT STAND QUITE INDEPENDENTLY OF THE IMPACT OF
PARTICULAR PROVISIONS OF THE STATUTE.  IT SHOULD ALSO BE NOTED THAT THE
ABSENCE OF SUCH PROVISIONS DOES NOT MEAN THAT CARRIERS MAY FOLLOW
MISROUTING PRACTICES WITH IMPUNITY.  SECTION 212(A) OF THE ACT PROVIDES
THAT THE COMMISSION MAY, ON ITS OWN INITIATIVE OR ON COMPLAINT, SUSPEND
OR REVOKE CERTIFICATES, PERMITS, OR LICENSES FOR WILLFUL FAILURE TO
COMPLY WITH ANY PROVISION OF THE ACT OR ANY ORDER OR REGULATION OF THE
COMMISSION.  UNDER SEC. 216(E) THE COMMISSION MAY ORDER THE TERMINATION
OF AN UNJUST PRACTICE AND PRESCRIBE THE LAWFUL PRACTICE TO BE
FOLLOWED.  SECTION 222(A) IMPOSES FINES FOR VIOLATIONS OF THE ACT, AND
SEC. 222(B) CONFERS JURISDICTION ON THE DISTRICT COURTS TO ENJOIN
VIOLATIONS OF THE ACT WHEN APPLICATION IS MADE BY THE COMMISSION. 

2.  IF THE ISSUE AS TO THE REASONABLENESS OF A ROUTING PRACTICE IS
REFERRED TO THE COMMISSION, A PROCEDURE THE COURT RECOGNIZES AS
ESSENTIAL, ALLOWANCE OF A JUDICIAL REMEDY FOR MISROUTING WILL NOT
JEOPARDIZE THE STABILITY OF TARIFFS OR OF CERTIFICATED ROUTES.  BUT THE
SUGGESTION THAT SUCH A DANGER WAS PRESENTED BY A COURT ACTION
CHALLENGING UNREASONABLE RATES AND THAT THIS CONTRIBUTED TO THE
DECISION IN T.I.M.E. IS MANIFESTLY UNTENABLE.  IT WAS CONCEDED THERE,
AS OF COURSE IT HAD TO BE UNDER PRIOR DECISIONS OF THIS COURT, (FN2)
THAT THE PRIMARY JURISDICTION DOCTRINE COMPELLED REFERRAL TO THE
COMMISSION OF ALL ISSUES AS TO THE REASONABLENESS OF THE RATES.  SINCE
EVEN IF A JUDICIAL REMEDY WERE ALLOWED THE COMMISSION WOULD HAVE BEEN
THE TRIBUNAL DECIDING THE BASIC QUESTION, THE COURSE OF DECISION WOULD
HAVE BEEN UNIFORM AND THERE WOULD NOT HAVE BEEN, ANY MORE THAN HERE,
INTERFERENCE WITH THE COMMISSION'S FUNCTIONING IN THE AREA OF ITS
SPECIAL COMPETENCE OR ANY THREAT TO THE STABILITY OF THE RATE
STRUCTURE.  MOREOVER, THE POSSIBILITY THAT RATE ACTIONS MIGHT
CONSTITUTE A THREAT TO THE RATE STRUCTURE THROUGH STIMULATING EXCESSIVE
LITIGATION COULD HARDLY HAVE BEEN REGARDED AS A SIGNIFICANT FACTOR IN
T.I.M.E., FOR IT WAS THERE OBSERVED THAT ONLY A HANDFUL OF ACTIONS TO
RECOVER FOR UNREASONABLE CHARGES HAD BEEN BROUGHT IN THE PREVIOUS 24
YEARS.  359 U.S., AT 479.  AND IF THE COURT NOW BELIEVES THAT TO HAVE
BEEN A RELEVANT CONSIDERATION IN T.I.M.E., IT SHOULD CERTAINLY BE OF
GREATER WEIGHT WITH RESPECT TO MISROUTING CLAIMS, WHICH ARE LIKELY TO
ARISE MORE FREQUENTLY BECAUSE, AS THE COURT POINTS OUT, "SELECTION OF
THE ROUTE IS USUALLY MADE ON AN AD HOC BASIS, PRECLUDING PRESHIPMENT
DETERMINATION OF ITS REASONABLENESS."  (FN3) 

3.  FINALLY, AS TO THE SUGGESTIONS THAT ACTIONS SUCH AS THIS SHOULD
BE ALLOWED BECAUSE OF THEIR INCIDENTAL DETERRENT EFFECT ON MISROUTING
PRACTICES AND IN THE INTEREST OF JUSTICE TO SHIPPERS, IT NEED ONLY BE
SAID THAT THESE ARE MATTERS FOR THE CONGRESS.  (FN4)  OUR DUTY IS TO
APPLY THE STATUTE AS WE FIND IT. 

I WOULD AFFIRM. 

FN1  SECTION 216(B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
316(B), PROVIDES IN PERTINENT PART; "IT SHALL BE THE DUTY OF EVERY
COMMON CARRIER OF PROPERTY BY MOTOR VEHICLE  ...  TO  ... OBSERVE  ...
REASONABLE  ...  PRACTICES  ...  RELATING TO OR CONNECTED WITH THE
TRANSPORTATION OF PROPERTY IN INTERSTATE  ...  COMMERCE."  SECTION
216(E) PROVIDES THAT WHENEVER "THE COMMISSION SHALL BE OF THE OPINION
THAT ANY  ...  PRACTICE  ...  IS OR WILL BE UNJUST OR UNREASONABLE  ...
IT SHALL DETERMINE  ...  THE LAWFUL  ...  PRACTICE." 

FN2  SEE, E.G., TEXAS & PACIFIC R. CO. V. AMERICAN TIE & TIMBER CO.,
234 U.S. 138; TEXAS & PACIFIC R. CO. V. ABILENE COTTON OIL CO., 204
U.S. 426. 

FN3  IF THE COURT'S REFERENCE TO COMMISSIONER EASTMAN'S STATEMENT
QUOTED IN T.I.M.E., AT 477-478, N. 18, IS INTENDED TO IMPLY THAT THE
PRESENT ACTION MAY BE CHARACTERIZED AS ONE FOR RATE "OVERCHARGES" AND
THUS IS PERMISSIBLE, IT SHOULD BE NOTED THAT THE "OVERCHARGES" TO WHICH
THE COMMISSIONER REFERRED WERE, AS HIS STATEMENT MAKES CLEAR, CHARGES
"ABOVE PUBLISHED TARIFF RATES," ID., AT 478, NOT THOSE RESULTING, AS
ALLEGED HERE, FROM THE APPLICATION OF A WRONG TARIFF.  IT IS ONLY THE
FORMER THAT THE COMMISSIONER THOUGHT COULD BE RECOVERED "IN COURT AS
THE LAW NOW STANDS."  ID., AT 478. 

FN4 SO FAR, CONGRESS HAS REFUSED TO ACT.  SEE H.R. 8031, 86TH CONG.,
1ST SESS. (1959); 359 U.S., AT 471-472 AND NOTES 10, 11. 
..END :








LOS ANGELES MEAT & PROVISION DRIVERS V. UNITED STATES 371 U.S. 94 


NO. 38.  ARGUED OCTOBER 10, 1962.  - DECIDED NOVEMBER 19, 1962.  - 196
F. SUPP. 12, AFFIRMED. 


THE GOVERNMENT BROUGHT THIS CIVIL ACTION AGAINST APPELLANTS, A LABOR
UNION, ONE OF ITS BUSINESS AGENTS AND FOUR SELF-EMPLOYED INDEPENDENT
CONTRACTORS, SO-CALLED GREASE PEDDLERS, WHO WERE MEMBERS OF THE UNION,
TO TERMINATE VIOLATIONS OF SEC. 1 OF THE SHERMAN ACT.  JUDGMENT WAS
ENTERED UPON FINDINGS BASED UPON A DETAILED STIPULATION OF FACTS IN
WHICH APPELLANTS ADMITTED ALL THE ALLEGATIONS OF THE COMPLAINT AND
AGREED TO THE ULTIMATE CONCLUSION THAT THEY HAD UNLAWFULLY COMBINED AND
CONSPIRED IN UNREASONABLE RESTRAINT OF FOREIGN TRADE AND COMMERCE IN
YELLOW GREASE.  THE DISTRICT COURT FOUND THAT ONLY THE SUPPORT OF THE
UNION AND THE POWERFUL WEAPONS AT ITS COMMAND HAD ENABLED THE PEDDLERS
AND THE UNION TO DESTROY FREE COMPETITION IN THE PURCHASE AND SALE OF
WASTE GREASE AND THAT TERMINATION OF MEMBERSHIP OF THE GREASE PEDDLERS
IN THE UNION APPEARED TO BE THE MOST EFFECTIVE, IF NOT THE ONLY, MEANS
OF PREVENTING A RECURRENCE OF APPELLANTS' UNLAWFUL ACTIVITIES.  IT NOT
ONLY ENJOINED THE PRACTICES FOUND TO BE UNLAWFUL BUT ALSO ORDERED THE
UNION TO EXPEL FROM MEMBERSHIP ALL SELF-EMPLOYED GREASE PEDDLERS. 
HELD:  THE JUDGMENT IS SUSTAINED.  PP. 95-103. 

(A)  A COURT OF EQUITY HAS POWER TO ORDER THE DISSOLUTION OF AN
ASSOCIATION OF BUSINESSMEN WHEN THE ASSOCIATION AND ITS MEMBERS HAVE
CONSPIRED AMONG THEMSELVES OR WITH OTHERS TO VIOLATE THE ANTITRUST
LAWS, AND THE CIRCUMSTANCES FOUND IN THIS CASE PROVIDE AMPLE SUPPORT
FOR A DECREE OF DISSOLUTION.  PP. 98-99. 

(B)  NOTHING IN THE ANTI-INJUNCTION PROVISIONS OF THE NORRIS
LAGUARDIA ACT NOR IN THE LABOR EXEMPTION PROVISIONS OF THE CLAYTON ACT
INSULATES A COMBINATION IN ILLEGAL RESTRAINT OF TRADE BETWEEN
BUSINESSMEN AND A LABOR UNION FROM THE SANCTIONS OF THE ANTITRUST
LAWS.  PP. 99-101. 

(C)  BUSINESSMEN WHO COMBINE IN AN ASSOCIATION WHICH OTHERWISE WOULD
BE PROPERLY SUBJECT TO DISSOLUTION UNDER THE ANTITRUST LAWS CANNOT
IMMUNIZE THEMSELVES FROM THAT SANCTION BY THE SIMPLE EXPEDIENT OF
CALLING THEMSELVES A LABOR UNION.  P. 101. 

(D)  THERE IS NOTHING IN THE NORRIS-LAGUARDIA ACT NOR IN THE CLAYTON
ACT NOR IN THE FEDERAL POLICY WHICH THESE STATUTES REFLECT TO PREVENT A
COURT FROM DISSOLVING THE TIES WHICH BOUND THESE BUSINESSMEN TOGETHER
AND WHICH BOUND THEM TO THE APPELLANT UNION IN THE CIRCUMSTANCES OF
THIS CASE.  PP. 101-103. 

(E)  THE DECREE DOES NOT VIOLATE APPELLANTS' FREEDOM OF ASSOCIATION
GUARANTEED BY THE FIRST AMENDMENT.  P. 101, N. 5. 

(F)  THOUGH THE DECREE DIRECTED THE UNION TO EXPEL FROM MEMBERSHIP
"ALL GREASE PEDDLERS" AND TO REFUSE MEMBERSHIP IN THE FUTURE TO "ANY
GREASE PEDDLER," IT WAS NOT VOID AS TO GREASE PEDDLERS WHO WERE NOT
JOINED AS DEFENDANTS, SINCE THE ORDER RAN ONLY AGAINST THE UNION.  P.
101, N. 5. 

LOS ANGELES MEAT & PROVISION DRIVERS UNION ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS ARE A LOS ANGELES LABOR UNION, ONE OF ITS BUSINESS
AGENTS, AND FOUR SELF-EMPLOYED INDEPENDENT CONTRACTORS, SO-CALLED
"GREASE PEDDLERS," WHO WERE MEMBERS OF THE UNION.  THEY APPEAL FROM A
JUDGMENT ENTERED AGAINST THEM BY A FEDERAL DISTRICT COURT IN A CIVIL
ACTION BROUGHT BY THE UNITED STATES TO TERMINATE VIOLATIONS OF SEC. 1
OF THE SHERMAN ACT.  (FN1)  THE JUDGMENT WAS ENTERED UPON FINDINGS
BASED UPON A DETAILED STIPULATION OF FACTS IN WHICH THE APPELLANTS
ADMITTED ALL THE ALLEGATIONS OF THE COMPLAINT AND AGREED TO THE
ULTIMATE CONCLUSION THAT THEY HAD UNLAWFULLY COMBINED AND CONSPIRED IN
UNREASONABLE RESTRAINT OF FOREIGN TRADE AND COMMERCE IN YELLOW GREASE. 
IN THE STIPULATION THE APPELLANTS ALSO AGREED TO THE ISSUANCE OF A
BROAD INJUNCTION AGAINST THEM.  THE DISTRICT COURT'S DECREE ENJOINED IN
SPECIFIC DETAIL THE PRACTICES FOUND TO BE UNLAWFUL, AND IN ADDITION
ORDERED THE UNION TO TERMINATE THE UNION MEMBERSHIP OF ALL SELF
EMPLOYED GREASE PEDDLERS.  196 F. SUPP. 12.  THE APPELLANTS ATTACK THE
JUDGMENT HERE UPON THE SINGLE GROUND THAT THE DISTRICT COURT WAS IN
ERROR IN ORDERING TERMINATION OF THE UNION MEMBERSHIP OF THESE
INDEPENDENT BUSINESSMEN.   (FN2)  CONSIDERATION OF THIS CLAIM REQUIRES
A SOMEWHAT DETAILED REVIEW OF THE NATURE OF THE ILLEGAL CONSPIRACY IN
WHICH THE APPELLANTS IN THIS CASE WERE CONCEDEDLY ENGAGED. 

DURING THE PERIOD BETWEEN 1954 AND 1959 THERE WERE IN LOS ANGELES
COUNTY EIGHT FIRMS ENGAGED AS PROCESSORS IN THE PRODUCTION OF YELLOW
GREASE, AN INEDIBLE GREASE PRODUCED BY REMOVING MOISTURE AND SOLID
IMPURITIES FROM SO-CALLED RESTAURANT GREASE - WASTE GREASE RESULTING
FROM THE PREPARATION OF FOOD IN RESTAURANTS, HOTELS AND INSTITUTIONS. 
A SUBSTANTIAL PART OF THE YELLOW GREASE SO PRODUCED WAS SOLD TO
OVERSEAS PURCHASERS AND TO PURCHASERS IN CALIFORNIA FOR PROMPT SHIPMENT
OVERSEAS. 

THE PROCESSORS PROCURED RESTAURANT GREASE IN TWO SEPARATE WAYS.  THEY
MADE DIRECT PURCHASES, USUALLY FROM LARGE RESTAURANTS, HOTELS AND OTHER
INSTITUTIONS, AND IN THESE TRANSACTIONS THE PROCESSORS PICKED UP THE
RESTAURANT GREASE FROM THE SELLERS THROUGH EMPLOYEES WHO WERE MEMBERS
OF THE UNION.  RESTAURANT GREASE FROM OTHER SOURCES WAS USUALLY
PURCHASED BY THE PROCESSORS FROM GREASE PEDDLERS, INDEPENDENT
ENTREPRENEURS WHOSE EARNINGS AS MIDDLEMEN CONSISTED OF THE DIFFERENCE
BETWEEN THE PRICE AT WHICH THEY BOUGHT THE RESTAURANT GREASE FROM
VARIOUS SOURCES AND THE PRICE AT WHICH THEY SOLD IT TO THE PROCESSORS,
LESS THE COST OF OPERATING AND MAINTAINING THEIR TRUCKS.  THERE WERE
SOME 35 TO 45 GREASE PEDDLERS IN THE LOS ANGELES AREA. 

IN 1954 MOST OF THE GREASE PEDDLERS BECAME MEMBERS OF THE APPELLANT
UNION, AT THE INSTIGATION OF THE APPELLANT BUSINESS AGENT, FOR THE
PURPOSE OF INCREASING THE MARGIN BETWEEN THE PRICES THEY PAID FOR
GREASE AND THE PRICES AT WHICH THEY SOLD IT TO THE PROCESSORS.  TO
ACCOMPLISH THIS PURPOSE, FIXED PURCHASE AND SALE PRICES WERE AGREED
UPON AND ENFORCED BY UNION AGENTS THROUGH THE EXERCISE OR THREATENED
EXERCISE OF UNION ECONOMIC POWER IN THE FORM OF STRIKES AND BOYCOTTS
AGAINST PROCESSORS WHO INDICATED ANY INCLINATION TO DEAL WITH GREASE
PEDDLERS WHO WERE NOT UNION MEMBERS.  THE UNION'S BUSINESS AGENT
ALLOCATED ACCOUNTS AND TERRITORIES FOR BOTH PURCHASES AND SALES AMONG
THE VARIOUS GREASE PEDDLERS, WHO AGREED TO REFRAIN FROM BUYING FROM OR
SOLICITING THE CUSTOMERS OF OTHER PEDDLERS, AND VIOLATIONS OF THIS
AGREEMENT COULD RESULT IN A GREASE PEDDLER'S SUSPENSION FROM THE UNION,
IN WHICH EVENT HE WAS, OF COURSE, PROHIBITED FROM CARRYING ON HIS
BUSINESS. 

FROM 1954 TO 1959 THIS BASIC PLAN OF PRICE FIXING AND ALLOCATION OF
BUSINESS WAS EFFECTIVELY CARRIED OUT BY ELIMINATION OF THE FEW PEDDLERS
WHO HAD NOT JOINED THE UNION, AND BY COERCION UPON THE PROCESSORS
THROUGH THREATS OF "UNION TROUBLE" IF THEY DID NOT COMPLY. 

WITHIN THE UNION THE GREASE PEDDLERS WERE TREATED AS A SEPARATE
GROUP, DISTINCT FROM THE SOME 2,400 EMPLOYEE MEMBERS.  THE MEETINGS OF
THE GREASE PEDDLERS WERE ALWAYS HELD APART FROM REGULAR UNION MEETINGS,
AND FROM 1955 ON, THE GREASE PEDDLERS WERE MEMBERS OF A SPECIAL
"SUBDIVISION" OF THE UNION - LOCAL 626-B.  THE AFFAIRS OF THIS SEPARATE
SUBDIVISION WERE ADMINISTERED NOT BY REGULAR UNION OFFICERS, BUT BY THE
APPELLANT BUSINESS AGENT WHO HAD ORIGINATED THE SCHEME, TOGETHER WITH A
COMMITTEE OF GREASE PEDDLERS TO ASSIST IN "POLICING, ENFORCING AND
CARRYING OUT THE PROGRAM TO SUPPRESS AND ELIMINATE COMPETITION." 

THERE WAS NO SHOWING OF ANY ACTUAL OR POTENTIAL WAGE OR JOB
COMPETITION, OR OF ANY OTHER ECONOMIC INTERRELATIONSHIP, BETWEEN THE
GREASE PEDDLERS AND THE OTHER MEMBERS OF THE UNION.  IT WAS STIPULATED
THAT NO PROCESSORS HAD EVER SUBSTITUTED PEDDLERS FOR EMPLOYEE-DRIVERS
IN ACQUIRING RESTAURANT GREASE, OR HAD EVER THREATENED TO DO SO.  THE
STIPULATION MADE CLEAR THAT THE PEDDLERS AND THE PROCESSORS HAD
ESSENTIALLY DIFFERENT SOURCES OF SUPPLY AND DIFFERENT CLASSES OF
CUSTOMERS.  BASED ON THESE STIPULATED FACTS, THE DISTRICT COURT
AFFIRMATIVELY FOUND THAT "THERE IS NO COMPETITION BETWEEN THE EMPLOYEE
AND PEDDLER GROUPS BECAUSE EACH IS ENGAGED IN A DIFFERENT LINE OF WORK
...  ." 

POINTING OUT THAT "THE STIPULATED FACTS CLEARLY SHOW THAT BEFORE THE
GREASE PEDDLERS JOINED THE DEFENDANT UNION, THERE WAS NO SUPPRESSION OF
COMPETITION AMONG THEM, AND THAT ONLY THE SUPPORT OF THE UNION AND THE
POWERFUL WEAPONS AT ITS COMMAND ENABLED THE PEDDLERS AND THE UNION
TOGETHER TO DESTROY FREE COMPETITION IN THE PURCHASE AND SALE OF WASTE
GREASE," THE DISTRICT COURT CONCLUDED THAT "A DECREE TERMINATING THE
MEMBERSHIP OF THE GREASE PEDDLERS IN DEFENDANT UNION APPEARS TO BE THE
MOST EFFECTIVE, IF NOT THE ONLY, MEANS OF PREVENTING A RECURRENCE OF
DEFENDANTS' UNLAWFUL ACTIVITIES."  THE COURT FURTHER CONCLUDED THAT
NOTHING IN THE CLAYTON ACT OR THE NORRIS-LAGUARDIA ACT PREVENTED THE
ISSUANCE OF A DECREE DIVESTING THE GREASE PEDDLERS OF UNION MEMBERSHIP
IN THE CIRCUMSTANCES OF THIS CASE.  WE AGREE WITH THESE BASIC
CONCLUSIONS. 

IT IS BEYOND QUESTION THAT A COURT OF EQUITY HAS POWER IN APPROPRIATE
CIRCUMSTANCES TO ORDER THE DISSOLUTION OF AN ASSOCIATION OF
BUSINESSMEN, WHEN THE ASSOCIATION AND ITS MEMBERS HAVE CONSPIRED AMONG
THEMSELVES OR WITH OTHERS TO VIOLATE THE ANTITRUST LAWS.  HARTFORD
EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 428.  AND THE CIRCUMSTANCES
STIPULATED AND FOUND IN THE PRESENT CASE PROVIDED AMPLE SUPPORT, WE
THINK, FOR A DECREE OF DISSOLUTION, AS A MATTER OF THE DISCREET
EXERCISE OF EQUITABLE POWER. 

IT IS ALSO BEYOND QUESTION THAT NOTHING IN THE ANTI-INJUNCTION
PROVISIONS OF THE NORRIS-LAGUARDIA ACT, (FN3) NOR IN THE LABOR
EXEMPTION PROVISIONS OF THE CLAYTON ACT, (FN4) INSULATES A COMBINATION
IN ILLEGAL RESTRAINT OF TRADE BETWEEN BUSINESSMEN AND A LABOR UNION
FROM THE SANCTIONS OF THE ANTITRUST LAWS.  ALLEN BRADLEY CO. V. LOCAL
UNION NO. 3, 325 U.S. 797.  INDEED, THE APPELLANTS HAVE CONCEDED THE
PROPRIETY OF THE ORDER IN THE PRESENT CASE WHICH BROADLY ENJOINS THE
ILLEGAL PRACTICES IN WHICH THEY WERE ENGAGED. 

THE NARROW QUESTION WHICH EMERGES IN THIS CASE, THEREFORE, IS WHETHER
BUSINESSMEN WHO COMBINE IN AN ASSOCIATION WHICH WOULD OTHERWISE BE
PROPERLY SUBJECT TO DISSOLUTION UNDER THE ANTITRUST LAWS CAN IMMUNIZE
THEMSELVES FROM THAT SANCTION BY THE SIMPLE EXPEDIENT OF CALLING
THEMSELVES "LOCAL 626-B" OF A LABOR UNION.  (FN5)  WE THINK THERE IS
NOTHING IN THE NORRIS-LAGUARDIA ACT NOR IN THE CLAYTON ACT, NOR IN THE
FEDERAL POLICY WHICH THESE STATUTES REFLECT, TO PREVENT A COURT FROM
DISSOLVING THE TIES WHICH BOUND THESE BUSINESSMEN TOGETHER, AND WHICH
BOUND THEM TO THE APPELLANT UNION, IN THE CIRCUMSTANCES OF THE PRESENT
CASE. 

THE PROVISIONS OF THE NORRIS-LAGUARDIA ACT PLACE SEVERE LIMITATIONS
UPON THE ISSUANCE OF AN INJUNCTION BY A FEDERAL COURT IN "ANY CASE
INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE," AND THE STATUTE
SPECIFICALLY FORBIDS A DISTRICT COURT IN SUCH A CASE TO PROHIBIT ANYONE
FROM "BECOMING OR REMAINING A MEMBER OF ANY LABOR ORGANIZATION."  BUT,
AS THE DISTRICT COURT CORRECTLY FOUND, THE PRESENT CASE WAS NOT ONE
"INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE," BUT ONE INVOLVING AN
ILLEGAL COMBINATION BETWEEN BUSINESSMEN AND A UNION TO RESTRAIN
COMMERCE.  IN SUCH A CASE, AS ALLEN BRADLEY CO. CLEARLY HELD, NEITHER
THE NORRIS-LAGUARDIA ACT NOR THE LABOR EXEMPTION PROVISIONS OF THE
CLAYTON ACT ARE APPLICABLE. 

THIS COURT'S DECISION IN COLUMBIA RIVER CO. V. HINTON, 315 U.S. 143,
IS VERY MUCH IN POINT.  THAT WAS A PRIVATE ANTITRUST SUIT BROUGHT BY A
PROCESSOR OF FISH TO ENJOIN AN ALLEGEDLY ILLEGAL COMBINATION OF
FISHERMEN, WHO HAD JOINED TOGETHER IN THE PACIFIC COAST FISHERMEN'S
UNION TO REGULATE THE TERMS UNDER WHICH FISH WOULD BE SOLD.  THE
ORGANIZATION WAS "AFFILIATED WITH THE C.I.O."  315 U.S., AT 144.  THE
DEFENDANTS CLAIMED THAT AN INJUNCTION AGAINST THEM WOULD VIOLATE THE
NORRIS-LAGUARDIA ACT.  THE COURT HELD THAT THE CONTROVERSY WAS NOT A
"LABOR DISPUTE" WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT,
POINTING OUT THAT THAT STATUTE WAS "NOT INTENDED TO HAVE APPLICATION TO
DISPUTES OVER THE SALE OF COMMODITIES."  315 U.S., AT 145.  HERE, AS IN
COLUMBIA RIVER CO., THE GREASE PEDDLERS WERE SELLERS OF COMMODITIES,
WHO BECAME "MEMBERS" OF THE UNION ONLY FOR THE PURPOSE OF BRINGING
UNION POWER TO BEAR IN THE SUCCESSFUL ENFORCEMENT OF THE ILLEGAL
COMBINATION IN RESTRAINT OF THE TRAFFIC IN YELLOW GREASE.  (FN6)  THE
DISTRICT COURT WAS NOT IN ERROR IN ORDERING THE COMPLETE TERMINATION OF
THAT ILLEGAL COMBINATION. 

WHAT HAS BEEN SAID IS NOT REMOTELY TO SUGGEST THAT A LABOR
ORGANIZATION MIGHT NOT OFTEN HAVE A LEGITIMATE INTEREST IN SOLICITING
SELF-EMPLOYED ENTREPRENEURS AS MEMBERS.  CF. MILK WAGON DRIVERS' UNION
V. LAKE VALLEY FARM PRODUCTS, 311 U.S. 91; BAKERY DRIVERS LOCAL V.
WOHL, 315 U.S. 769; LOCAL 24 V. OLIVER, 358 U.S. 283.  AND BOTH THE
NORRIS-LAGUARDIA ACT AND THE CLAYTON ACT ENSURE THAT THE ANTITRUST LAWS
CANNOT BE USED AS A VEHICLE TO STIFLE LEGITIMATE LABOR UNION
ACTIVITIES.  BUT HERE THE COURT FOUND UPON STIPULATED FACTS THAT THERE
WAS NO JOB OR WAGE COMPETITION OR ECONOMIC INTERRELATIONSHIP OF ANY
KIND BETWEEN THE GREASE PEDDLERS AND OTHER MEMBERS OF THE APPELLANT
UNION.  IF THAT SITUATION SHOULD CHANGE IN THE FUTURE, THE DISTRICT
COURT WILL HAVE AMPLE POWER TO AMEND ITS DECREE.  (FN7)  AFFIRMED. 

FN1  "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. SEC. 1. 

FN2  THE APPEAL WAS BROUGHT DIRECTLY TO THIS COURT UNDER THE
PROVISIONS OF THE EXPEDITING ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C.
SEC. 29. 

FN3  NORRIS-LAGUARDIA ACT, SEC. 4, 29 U.S.C. SEC. 104: 

"104.  ENUMERATION OF SPECIFIC ACTS NOT SUBJECT TO RESTRAINING ORDERS
OR INJUNCTIONS. 

"NO COURT OF THE UNITED STATES SHALL HAVE JURISDICTION TO ISSUE ANY
RESTRAINING ORDER OR TEMPORARY OR PERMANENT INJUNCTION IN ANY CASE
INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE TO PROHIBIT ANY PERSON OR
PERSONS PARTICIPATING OR INTERESTED IN SUCH DISPUTE (AS THESE TERMS ARE
HEREIN DEFINED) FROM DOING, WHETHER SINGLY OR IN CONCERT, ANY OF THE
FOLLOWING ACTS: 

"(A)  CEASING OR REFUSING TO PERFORM ANY WORK OR TO REMAIN IN ANY
RELATION OF EMPLOYMENT: 

"(B)  BECOMING OR REMAINING A MEMBER OF ANY LABOR ORGANIZATION OR OF
ANY EMPLOYER ORGANIZATION, REGARDLESS OF ANY SUCH UNDERTAKING OR
PROMISE AS IS DESCRIBED IN SECTION 103 OF THIS TITLE: 

"(C)  PAYING OR GIVING TO, OR WITHHOLDING FROM, ANY PERSON
PARTICIPATING OR INTERESTED IN SUCH LABOR DISPUTE, ANY STRIKE OR
UNEMPLOYMENT BENEFITS OR INSURANCE, OR OTHER MONEYS OR THINGS OF VALUE:

"(D)  BY ALL LAWFUL MEANS AIDING ANY PERSON PARTICIPATING OR
INTERESTED IN ANY LABOR DISPUTE WHO IS BEING PROCEEDED AGAINST IN, OR
IS PROSECUTING, ANY ACTION OR SUIT IN ANY COURT OF THE UNITED STATES OR
OF ANY STATE: 

"(E)  GIVING PUBLICITY TO THE EXISTENCE OF, OR THE FACTS INVOLVED IN,
ANY LABOR DISPUTE, WHETHER BY ADVERTISING, SPEAKING, PATROLLING, OR BY
ANY OTHER METHOD NOT INVOLVING FRAUD OR VIOLENCE: 

"(F)  ASSEMBLING PEACEABLY TO ACT OR TO ORGANIZE TO ACT IN PROMOTION
OF THEIR INTERESTS IN A LABOR DISPUTE: 

"(G)  ADVISING OR NOTIFYING ANY PERSON OF AN INTENTION TO DO ANY OF
THE ACTS HERETOFORE SPECIFIED:

"(H)  AGREEING WITH OTHER PERSONS TO DO OR NOT TO DO ANY OF THE ACTS
HERETOFORE SPECIFIED; AND: 

"(I)  ADVISING, URGING, OR OTHERWISE CAUSING OR INDUCING WITHOUT
FRAUD OR VIOLENCE THE ACTS HERETOFORE SPECIFIED, REGARDLESS OF ANY SUCH
UNDERTAKING OR PROMISE AS IS DESCRIBED IN SECTION 103 OF THIS TITLE." 
MARCH 23, 1932, C. 90, SEC. 4, 47 STAT. 70. 

FN4  CLAYTON ACT, SECS. 6 AND 20, 15 U.S.C. SEC. 17, AND 29 U.S.C.
SEC. 52: 

"17.  ANTITRUST LAWS NOT APPLICABLE TO LABOR ORGANIZATIONS. 

"THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR ARTICLE OF
COMMERCE.  NOTHING CONTAINED IN THE ANTITRUST LAWS SHALL BE CONSTRUED
TO FORBID THE EXISTENCE AND OPERATION OF LABOR, AGRICULTURAL, OR
HORTICULTURAL ORGANIZATIONS, INSTITUTED FOR THE PURPOSES OF MUTUAL
HELP, AND NOT HAVING CAPITAL STOCK OR CONDUCTED FOR PROFIT, OR TO
FORBID OR RESTRAIN INDIVIDUAL MEMBERS OF SUCH ORGANIZATIONS FROM
LAWFULLY CARRYING OUT THE LEGITIMATE OBJECTS THEREOF; NOR SHALL SUCH
ORGANIZATIONS, OR THE MEMBERS THEREOF, BE HELD OR CONSTRUED TO BE
ILLEGAL COMBINATIONS OR CONSPIRACIES IN RESTRAINT OF TRADE, UNDER THE
ANTITRUST LAWS."  OCT. 15, 1914, C. 323, SEC. 6, 38 STAT. 731.    "52.
STATUTORY RESTRICTION OF INJUNCTIVE RELIEF. 

"NO RESTRAINING ORDER OR INJUNCTION SHALL BE GRANTED BY ANY COURT OF
THE UNITED STATES, OR A JUDGE OR THE JUDGES THEREOF, IN ANY CASE
BETWEEN AN EMPLOYER AND EMPLOYEES, OR BETWEEN EMPLOYERS AND EMPLOYEES,
OR BETWEEN EMPLOYEES, OR BETWEEN PERSONS EMPLOYED AND PERSONS SEEKING
EMPLOYMENT, INVOLVING, OR GROWING OUT OF, A DISPUTE CONCERNING TERMS OR
CONDITIONS OF EMPLOYMENT, UNLESS NECESSARY TO PREVENT IRREPARABLE
INJURY TO PROPERTY, OR TO A PROPERTY RIGHT, OF THE PARTY MAKING THE
APPLICATION, FOR WHICH INJURY THERE IS NO ADEQUATE REMEDY AT LAW, AND
SUCH PROPERTY OR PROPERTY RIGHT MUST BE DESCRIBED WITH PARTICULARITY IN
THE APPLICATION, WHICH MUST BE IN WRITING AND SWORN TO BY THE APPLICANT
OR BY HIS AGENT OR ATTORNEY. 

"AND NO SUCH RESTRAINING ORDER OR INJUNCTION SHALL PROHIBIT ANY
PERSON OR PERSONS, WHETHER SINGLY OR IN CONCERT, FROM TERMINATING ANY
RELATION OF EMPLOYMENT, OR FROM CEASING TO PERFORM ANY WORK OR LABOR,
OR FROM RECOMMENDING, ADVISING, OR PERSUADING OTHERS BY PEACEFUL MEANS
TO DO SO; OR FROM ATTENDING AT ANY PLACE WHERE ANY SUCH PERSON OR
PERSONS MAY LAWFULLY BE, FOR THE PURPOSE OF PEACEFULLY OBTAINING OR
COMMUNICATING INFORMATION, OR FROM PEACEFULLY PERSUADING ANY PERSON TO
WORK OR TO ABSTAIN FROM WORKING; OR FROM CEASING TO PATRONIZE OR TO
EMPLOY ANY PARTY TO SUCH DISPUTE, OR FROM RECOMMENDING, ADVISING, OR
PERSUADING OTHERS BY PEACEFUL AND LAWFUL MEANS SO TO DO; OR FROM PAYING
OR GIVING TO, OR WITHHOLDING FROM, ANY PERSON ENGAGED IN SUCH DISPUTE,
ANY STRIKE BENEFITS OR OTHER MONEYS OR THINGS OF VALUE; OR FROM
PEACEABLY ASSEMBLING IN A LAWFUL MANNER, AND FOR LAWFUL PURPOSES; OR
FROM DOING ANY ACT OR THING WHICH MIGHT LAWFULLY BE DONE IN THE ABSENCE
OF SUCH DISPUTE BY ANY PARTY THERETO; NOR SHALL ANY OF THE ACTS
SPECIFIED IN THIS PARAGRAPH BE CONSIDERED OR HELD TO BE VIOLATIONS OF
ANY LAW OF THE UNITED STATES."  OCT. 15, 1914, C. 323, SEC. 20, 38
STAT. 738. 

FN5  THE APPELLANTS ALSO URGE THAT THE DECREE VIOLATES THEIR RIGHT OF
FREEDOM OF ASSOCIATION GUARANTEED BY THE FIRST AMENDMENT.  THIS
CONTENTION, CARRIED TO ITS LOGICAL CONCLUSION, WOULD RENDER
UNCONSTITUTIONAL NOT ONLY MANY OF THE PROVISIONS OF THE ANTITRUST LAWS,
BUT ALL GENERAL CRIMINAL CONSPIRACY STATUTES AS WELL.  SUCH A CLAIM WAS
EXPLICITLY REJECTED IN GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S.
490. 

THE APPELLANTS FURTHER CONTEND THAT THE DECREE IS VOID AS TO GREASE
PEDDLERS WHO WERE NOT JOINED AS DEFENDANTS.  BUT THE ORDER OF
DIVESTITURE RAN ONLY AGAINST THE UNION: 

"THE DEFENDANT LOCAL 626 IS ORDERED AND DIRECTED: 

"(A)  TO EXPEL PROMPTLY FROM MEMBERSHIP ALL GREASE PEDDLERS: 

"(B)  TO REFUSE MEMBERSHIP AT ANY TIME IN THE FUTURE TO ANY GREASE
PEDDLER: 

"(C)  TO EXPEL FROM MEMBERSHIP ANY MEMBER WHO BECOMES A GREASE
PEDDLER: 

"(D)  TO FURNISH A COPY OF THIS DECREE TO ALL GREASE PEDDLERS WHO ARE
NOW MEMBERS OF LOCAL 626." 

FN6  IN NOVEMBER 1954, THE GREASE PEDDLERS FORMED A TRADE ASSOCIATION
KNOWN AS THE LOS ANGELES GREASE BUYERS ASSOCIATION.  THIS ASSOCIATION
WAS UNSUCCESSFUL IN ITS EFFORTS TO CONTROL THE MARKET IN RESTAURANT
GREASE, AND IT WAS DISSOLVED IN EARLY 1955 AFTER A MEETING AT WHICH THE
APPELLANT UNION BUSINESS AGENT TOLD THE PEDDLERS TO CHOOSE BETWEEN THE
UNION AND THE ASSOCIATION, STATING THAT THE UNION COULD DO FOR THE
PEDDLERS WHAT THE ASSOCIATION COULD NOT DO. 

FN7 UNITED STATES V. SWIFT & CO., 286 U.S. 106, 114.  CF. DONALDSON
V. READ MAGAZINE, 333 U.S. 178, 184. 

MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE BRENNAN JOINS,
CONCURRING. 

I CONCUR IN TODAY'S OPINION AND JUDGMENT OF THE COURT BECAUSE THE
ABSENCE HERE OF ANY COUNTERVAILING UNION INTEREST IN RETAINING THE
GREASE PEDDLERS AS MEMBERS COUPLED WITH THE EGREGIOUS NATURE OF THE
CONDUCT INVOLVED SUPPORTS THE DISTRICT COURT'S EXERCISE OF DISCRETION
IN IMPOSING THE CONTESTED SANCTION AS THE "MOST EFFECTIVE  ...  MEANS
OF PREVENTING A RECURRENCE OF DEFENDANTS' UNLAWFUL ACTIVITIES."  ANTE,
P. 98.  AS I READ THE STIPULATED RECORD, THE PEDDLERS DID NOT ACT AND
WERE NOT VIEWED BY THE UNION AS PARTICIPANTS IN NORMAL UNION ACTIVITIES
DESIGNED TO BETTER THEIR ECONOMIC CONDITION, BUT INSTEAD WERE FROM THE
VERY BEGINNING USED BY UNION OFFICIALS TO EFFECT A CONCEDEDLY ILLEGAL
SCHEME TO CONTROL THE DISTRIBUTION AND PROCESSING OF GREASE. 

THIS DOES NOT MEAN, AND I DO NOT REGARD THE OPINION OF THE COURT AS
SAYING, THAT MEMBERS MAY BE EXPELLED FROM A UNION WHEN THE PURSUIT OF
GENUINE LABOR OBJECTIVES HAS COLLATERALLY RESULTED IN TRANSGRESSIONS OF
THE ANTITRUST LAWS. 

THE RELIEF GIVEN BY THE DISTRICT COURT IS NOT INCONSISTENT WITH THESE
EXPRESSIONS.  TO SUPPORT ITS ORDER, HOWEVER, THAT THE UNION MUST
TERMINATE THE MEMBERSHIP OF THE GREASE PEDDLERS, THE COURT BELOW
REASONED THAT THE EXPULSION WAS APPROPRIATE AND JUSTIFIED BECAUSE, IN
THE ABSENCE OF JOB OR WAGE COMPETITION BETWEEN THE PEDDLERS AND OTHER
UNION MEMBERS, THE PEDDLERS WERE NOT PROPER SUBJECTS OF UNIONIZATION. 
IN REACHING THIS CONCLUSION, THE COURT BELOW TOO NARROWLY CIRCUMSCRIBED
THE PERMISSIBLE AREA OF LEGITIMATE LABOR UNION ACTIVITY.  TO BELIEVE
THAT LABOR UNION INTERESTS MAY NOT PROPERLY EXTEND BEYOND MERE DIRECT
JOB AND WAGE COMPETITION IS TO IGNORE NOT ONLY ECONOMIC AND SOCIAL
REALITIES SO OBVIOUS AS NOT TO NEED MENTION, BUT ALSO THE GRAPHIC
LESSONS OF AMERICAN LABOR UNION HISTORY. 

TODAY'S OPINION OF THE COURT THUS PROPERLY NOTES THAT A LABOR
ORGANIZATION MAY "OFTEN HAVE A LEGITIMATE INTEREST IN SOLICITING SELF
EMPLOYED ENTREPRENEURS AS MEMBERS" AND RECOGNIZES THAT PERMISSIBLE
UNION INTEREST AND ACTION EXTENDS BEYOND JOB AND WAGE COMPETITION TO
OTHER "ECONOMIC INTERRELATIONSHIPS."  ANTE, P. 103.  IN MY VIEW, THERE
IS THEREFORE IMPLICIT IN THIS COURT'S OPINION A REJECTION OF THE
DISTRICT COURT'S OVERLY STRICT VIEW THAT JOB OR WAGE COMPETITION IS THE
SOLE MEASURE OF THE PROPRIETY OF UNION ORGANIZATIONAL EFFORTS. 

NOTWITHSTANDING WHAT I TAKE TO BE ITS DISAPPROVAL OF THE VIEWS OF THE
DISTRICT JUDGE, THE COURT CORRECTLY SUSTAINS THE JUDGMENT EXPELLING THE
PEDDLERS FROM MEMBERSHIP IN THE UNION, NOT BECAUSE THERE IS ABSENT THE
JOB OR WAGE COMPETITION ERRONEOUSLY CONSIDERED CRUCIAL BY THE DISTRICT
COURT, BUT BECAUSE THERE DOES NOT APPEAR IN THIS RECORD ANY OTHER
LEGITIMATE LABOR UNION INTEREST PRESENTLY BEING SERVED BY ORGANIZATION
OF THESE PEDDLERS. 

THE COURT IS NOT HERE REQUIRED TO PASS UPON, AND DOES NOT PASS UPON,
THE EXISTENCE OF THE ANTITRUST VIOLATION, OR WHETHER, AS AN ORIGINAL
MATTER, THE GREASE PEDDLERS MIGHT PROPERLY ASSOCIATE AMONG THEMSELVES
OR AFFILIATE WITH A SYMPATHETIC AND GENUINELY INTERESTED UNION TO
IMPROVE THEIR ECONOMIC CONDITION.  RESOLUTION OF SUCH ISSUES WOULD
REQUIRE CAREFUL AND DETAILED CONSIDERATION OF FEDERAL LABOR POLICY, THE
SCOPE OF THE ANTITRUST EXEMPTION AFFORDED LABOR ORGANIZATIONS BY SECS.
6 AND 20 OF THE CLAYTON ACT AND THE NORRIS-LAGUARDIA ACT, AS
INTERPRETED BY UNITED STATES V. HUTCHESON, 312 U.S. 219, AND, IN
ADDITION, THE APPLICABILITY HERE OF THE DOCTRINES ENUNCIATED BY THIS
COURT IN CASES SUCH AS COLUMBIA RIVER PACKERS ASSOCIATION, INC., V.
HINTON, 315 U.S. 143, AND ALLEN BRADLEY CO. V. LOCAL NO. 3, 325 U.S.
797.  IN THE PRESENT CASE, HOWEVER, APPELLANTS STIPULATED IN THE
DISTRICT COURT THAT THEY HAVE VIOLATED THE SHERMAN ACT AND ENGAGED IN A
PATTERN OF CONDUCT CALLING FOR REMEDIAL INJUNCTIVE RELIEF; THEY OFFERED
NO JUSTIFICATION FOR THEIR ADMITTEDLY ILLEGAL CONDUCT.  THESE
CONCESSIONS NECESSARILY FORFEIT ANY ANTITRUST EXEMPTION WHICH MIGHT
OTHERWISE HAVE BEEN CLAIMED TO ATTACH.  CONSEQUENTLY, THE ONLY QUESTION
REMAINING IS WHETHER, HAVING THUS NEGATIVED BY THEIR STIPULATIONS THE
EXISTENCE OF ANY EXONERATING LEGITIMATE UNION INTEREST, APPELLANTS MAY
NOW COMPLAIN THAT THE DISTRICT JUDGE ABUSED HIS DISCRETION IN
FASHIONING A REMEDY WHICH INCLUDED, IN ADDITION TO THE ENJOINING OF
FUTURE SIMILARLY ILLEGAL CONDUCT, EXPULSION OF THE PEDDLERS FROM THE
UNION.  ALTHOUGH, AS I HAVE INDICATED, I DO NOT AGREE WITH ALL OF HIS
VIEWS, I BELIEVE THAT THE DISTRICT JUDGE DID NOT EXCEED PERMISSIBLE
BOUNDS IN FRAMING THE DECREE. 

THE PARTICULAR NATURE OF THE CHALLENGED CONDUCT GIVING RISE TO THE
ULTIMATE ILLEGALITY (WHETHER ADJUDICATED AFTER CONTEST OR STIPULATED)
IS, OF COURSE, IMMEDIATELY AND DIRECTLY RELEVANT TO THE NATURE OF THE
RELIEF TO BE DECREED.  RELIEF SHOULD BE EFFECTIVE TO PRECLUDE FUTURE
VIOLATIONS AND, AT THE SAME TIME, SHOULD NOT UNDULY PENALIZE THE
PARTIES.  SINCE THE CONDUCT HERE GOES BEYOND THAT RECORDED IN THE
OPINION OF THE COURT, A BRIEF RECITAL OF ADDITIONAL FACTS IS
APPROPRIATE. 

THE STIPULATED ANTITRUST VIOLATION DOES NOT DEPEND UPON THE FACT OF
COMBINATION BETWEEN THE GREASE PEDDLERS AND THE UNION FOR THE PURPOSE
OF BETTERING THE ECONOMIC CONDITION OF THE FORMER THROUGH LIMITED USE
OF COLLECTIVE BARGAINING POWER - AN AFFILIATION WHICH STANDING ALONE
AND AS AN ORIGINAL MATTER MIGHT HAVE BEEN PROPER.  THOUGH NOT JOINED AS
DEFENDANTS BELOW, AT LEAST SOME OF THE PROCESSORS PURCHASING GREASE
FROM THE PEDDLERS WERE CONCEDED TO HAVE BEEN CO-CONSPIRATORS.  THE
UNION BUSINESS AGENT OPENLY ALLOCATED SALES AMONG THE PROCESSORS AND
CERTAIN PROCESSORS WERE COMPLETELY CUT OFF FROM SOURCES OF SUPPLY.  ON
AT LEAST ONE OCCASION, PROCESSORS WERE REQUIRED TO SUBMIT INFORMATION
CONCERNING THE VOLUME OF THEIR GREASE PURCHASES AND THE DATA SUPPLIED
WAS USED BY THE UNION AS A BASIS FOR ORDERING AN EQUALIZING SHIFT OF
BUSINESS TO A PROCESSOR OWNED BY A UNION MEMBER.  ONLY A MONTH EARLIER,
THE UNION BUSINESS AGENT HAD ARRANGED FOR A COMPETITOR TO "HELP OUT"
THIS SAME FAVORED PROCESSOR BY SELLING FOR IT GREASE WHICH IT WAS
HAVING TROUBLE SELLING.  THE ACCOMMODATING PROCESSOR UNDERTOOK THE SALE
SIMPLY BECAUSE IT FEARED "TROUBLE" WITH THE UNION AND ITS AGENT IF IT
REFUSED. 

BY VIRTUE OF THE UNION'S ACTIVITIES, THE PEDDLERS' SALES OF GREASE
WERE ULTIMATELY WHOLLY DIVERTED FROM THE SIX PROCESSORS ORIGINALLY
DEALING WITH THE PEDDLERS TO TWO PROCESSORS, ONE OF WHICH WAS OWNED BY
A UNION MEMBER AND IN THE OTHER OF WHICH A UNION MEMBER WAS A PARTNER. 
IN THE COURSE OF ACCOMPLISHING THIS SHIFT OF BUSINESS, AT LEAST ONE
NONCOOPERATIVE PROCESSOR WAS FORCED OUT OF BUSINESS.  (FN1) 

SUCH FACTS - ALL OF WHICH WERE STIPULATED - DEMONSTRATE A PATTERN OF
ALLOCATION OF SALES AMONG PROCESSORS AND OTHER IMPROPER PRACTICES
DESIGNED TO BENEFIT CERTAIN FAVORED PROCESSORS IN WHICH UNION MEMBERS
HAD A DIRECT FINANCIAL INTEREST. 

MOREOVER, AS INDICATED IN THE OPINION OF THE COURT, APPELLANTS
STIPULATED THAT THE PEDDLERS THEMSELVES ARE "INDEPENDENT BUSINESSMEN"
AND NOT "EMPLOYEES" OF THE PROCESSORS.  WE CANNOT OVERLOOK THE FORCE OF
THESE CONCESSIONS.  THIS CASE IS UNLIKE LABOR BOARD V. HEARST
PUBLICATIONS, 322 U.S. 111, IN WHICH NONEMPLOYEE STATUS WAS NOT MERELY
UNCONCEDED, BUT THE CONTRARY WAS ARGUED AND SHOWN.  HERE, THE SINGLE
PARAGRAPH IN THE STIPULATION OF FACTS DESCRIBING THE NATURE OF THE
PEDDLERS' ACTIVITIES DOES NOT OVERCOME THE ULTIMATE STIPULATION THAT
THEY WERE "BUSINESSMEN" AND NOT "EMPLOYEES."  CERTAINLY WE SHOULD NOT,
MERELY BY MECHANICALLY AFFIXING NAKED LABELS IMPORTED FROM OTHER
CONTEXTS, DECIDE CASES ON ABSTRACTIONS; BUT WE CANNOT IGNORE THE IMPACT
OF UNLIMITED, SELF-MADE CATEGORIZATIONS APPLIED BY AGREEMENT IN THE
VERY LAWSUIT BEFORE US. (FN2) 

THE IMPORT OF THE ENTIRE STIPULATED FACTUAL RECORD IS THAT THE UNION
NEITHER HAD NOR PURSUED ANY LEGITIMATE PRESENT INTEREST IN ORGANIZING
THE GREASE PEDDLERS.  WERE IT OTHERWISE, THAT PORTION OF THE DECREE
COMPELLING EXPULSION OF THE PEDDLERS FROM THE UNION, IN MY VIEW, COULD
NOT STAND.  THE SANCTION HERE INVOKED IS AN EXTREME ONE, AND, UNLESS
CONFINED TO USE BUT RARELY AND THEN ONLY IN THE MOST COMPELLING OF
CIRCUMSTANCES, MAY BECOME A DEVICE FOR UNFAIRLY AND IMPROPERLY
FRACTIONALIZING OR DECIMATING UNIONS. 

ON THE CIRCUMSTANCES PRESENTED TO THE COURT, THE JUDGMENT BELOW IS
PROPERLY AFFIRMED.  THE SITUATION MAY CHANGE, HOWEVER, AND I UNDERSTAND
THE OPINION OF THE COURT TO SAY THAT IF A LEGITIMATE UNION INTEREST IN
ORGANIZING THE PEDDLERS DOES HEREAFTER ARISE, THE DISTRICT COURT HAS
THE POWER, AND INDEED THE DUTY, TO MODIFY THE DECREE ON APPLICATION OF
THE APPELLANTS.  FOR THESE REASONS, I JOIN IN THE OPINION OF THE
COURT. 

FN1  THE UNION AGENT TOLD THE OWNER OF THE BUSINESS THAT "IF HE (THE
AGENT) COULD LEARN THE NAME OF (THE PROCESSOR'S)  ...  LANDLORD AND THE
BUYERS TO WHOM (THE PROCESSOR)  ...  WAS SELLING YELLOW GREASE  ...  HE
WOULD BRING PRESSURE THROUGH THE UNION TO HAVE (THE PROCESSOR'S)  ...
LEASE CANCELLED AND TO HAVE THE BUYERS STOP DEALING WITH (IT)  ...  ." 
THE AGENT SAID THAT HE DID NOT "WANT (THE PROCESSOR)  ...  IN THE
GREASE BUSINESS." 

FN2  THE STIPULATION OF NONEMPLOYEE STATUS PLUS THE ABSENCE OF
PURSUIT OF ANY GENUINE LABOR OBJECTIVE NEGATIVES THE EXISTENCE OF ANY
"LABOR DISPUTE" AND ELIMINATES THE NEED TO CONSIDER FURTHER THE
APPLICABILITY OF THE NORRIS-LAGUARDIA ACT PROHIBITIONS ON SPECIFIED
INJUNCTIVE RELIEF.  THERE IS INVOLVED NEITHER AN EXTENSION OF ALLEN
BRADLEY CO. V. LOCAL NO. 3, 325 U.S. 797, NOR A NARROWING OF THE
APPLICATION OF NORRIS-LAGUARDIA.  SIMILARLY OBVIATED IS THE RELATED
QUESTION WHETHER THE SUBSTANTIVE ANTITRUST EXEMPTION READ INTO THE
NORRIS-LAGUARDIA ACT BY UNITED STATES V. HUTCHESON, 312 U.S. 219, IS
COEXTENSIVE WITH THE ACT'S INJUNCTIVE INHIBITIONS, SO THAT APPELLANTS'
WAIVER OF THE FORMER WITH RESPECT TO THE ACTIVITIES AND COMBINATION
HERE CHALLENGED, SEE P. 105, SUPRA, IS ALSO EFFECTIVE TO WAIVE THE
LATTER.    MR. JUSTICE DOUGLAS, DISSENTING. 

IF WE TOOK HERE THE APPROACH WE TOOK IN LABOR BOARD V. HEARST
PUBLICATIONS, 322 U.S. 111, WE WOULD REVERSE THIS JUDGMENT.  THE
QUESTION THERE WAS WHETHER "NEWSBOYS," (WHO WERE INDEED MATURE MEN,
ID., 116) WHOSE COMPENSATION CONSISTED OF THE DIFFERENCE BETWEEN THE
PRICE AT WHICH THEY BOUGHT THEIR PAPERS FROM THE PUBLISHER AND THE
PRICE AT WHICH THEY SOLD THEM, WERE "EMPLOYEES" FOR PURPOSES OF THE
NATIONAL LABOR RELATIONS ACT.  THOUGH BY COMMON-LAW STANDARDS THEY WERE
"INDEPENDENT CONTRACTORS," WE HELD THAT THEY WERE "EMPLOYEES" UNDER THE
FEDERAL ACT.  WE NOTED THAT NUMEROUS TYPES OF "INDEPENDENT CONTRACTORS"
HAD FORMED OR JOINED UNIONS FOR COLLECTIVE BARGAINING - MUSICIANS,
ACTORS, WRITERS, ARTISTS, ARCHITECTS, ENGINEERS, AND INSURANCE AGENTS. 
ID., 127, N. 26.  WE POINTED OUT THAT THERE WERE MARGINAL GROUPS WHO,
THOUGH ENTREPRENEURIAL IN FORM, LACKED THE BARGAINING POWER NECESSARY
TO OBTAIN DECENT COMPENSATION, DECENT HOURS, AND DECENT WORKING
CONDITIONS.  ID., 126-128.  WE EMPHASIZED THAT "THE ECONOMIC FACTS OF
THE RELATION" (ID., 128) MAY MAKE IT "MORE NEARLY ONE OF EMPLOYMENT
THAN OF INDEPENDENT BUSINESS ENTERPRISE WITH RESPECT TO THE ENDS SOUGHT
TO BE ACCOMPLISHED BY THE LEGISLATION."  IBID. 

WE KNOW FROM OUR OWN CASES (WHICH ARE MUCH CLOSER ON THEIR FACTS TO
THE PRESENT CONTROVERSY THAN IS COLUMBIA RIVER CO. V. HINTON, 315 U.S.
143) THAT THE OWNER-DRIVER-PEDDLER SYSTEM IN THE TRANSPORTATION AND
SERVICE TRADES HAS LED TO WAGE AND JOB COMPETITION AND TO STRIFE OF ONE
KIND OR ANOTHER.  SENN V. TILE LAYERS UNION, 301 U.S. 468, SUSTAINED
PICKETING OF A TILE CONTRACTOR WHO DID MUCH OF THE MANUAL LABOR HIMSELF
BUT ALSO HIRED A FEW NONUNION HELPERS.  IN BAKERY DRIVERS LOCAL V.
WOHL, 315 U.S. 769, A CONFLICT AROSE BETWEEN A UNION AND SMALL PEDDLERS
OF BAKED GOODS WHO HAD INCREASED RANKS AS A RESULT OF SOCIAL SECURITY
AND UNEMPLOYMENT COMPENSATION LAWS.  ID., 770.  WE SUSTAINED UNDER THE
FIRST AMENDMENT THE UNION'S PICKETING OF THE PEDDLERS.  SEE ALSO LOCAL
24 V. OLIVER, 358 U.S. 283. 

DRIVERS' UNION V. LAKE VALLEY CO., 311 U.S. 91, IS EVEN MORE IN POINT
FOR IT PRESENTED, AS DOES THE PRESENT CASE, A QUESTION UNDER THE NORRIS
LAGUARDIA ACT.  SMALL MILK PEDDLERS WHO BOUGHT FROM WHOLESALERS AND
SOLD TO RETAILERS GREW SO FAST THAT UNION DAIRY EMPLOYEES LOST THEIR
JOBS AND RETAILERS STARTED CUTTING PRICES.  THE RESULT WAS A WEAKENING
OF THE UNION POSITION.  PICKETING STARTED AND AN INJUNCTION AGAINST IT
ISSUED.  WE HELD THAT THERE WAS A "LABOR DISPUTE" WITHIN THE MEANING OF
THE NORRIS-LAGUARDIA ACT AND THEREFORE THAT THE FEDERAL COURTS HAD NO
POWER TO ISSUE AN INJUNCTION.  CF. UNITED STATES V. AMERICAN FEDERATION
OF MUSICIANS, 318 U.S. 741. 

IT WAS STIPULATED IN THE PRESENT CASE THAT "GREASE PEDDLERS ARE
INDEPENDENT BUSINESSMEN WHO ARE ENGAGED IN THE BUSINESS OF BUYING,
TRANSPORTING, AND SELLING RESTAURANT GREASE FOR THEIR OWN ACCOUNT. 
THEY ARE NOT EMPLOYEES OF THE GREASE PROCESSORS." 

THIS IS THE BEGINNING NOT THE END OF THE PROBLEM.  AND IT IS NO
ANSWER TO SAY, AS DID THE DISTRICT COURT, THAT UNION MEMBERS AND THESE
GREASE PEDDLERS DO NOT COMPETE.  THAT IS, INDEED, DENIED BY THE RECORD
WHICH SHOWS THAT UNION MEMBERS DRIVE TRUCKS FOR GREASE PRODUCERS AND
PICK UP AND TRANSPORT GREASE. 

THE RECORD IN AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 344 U.S.
298, 304-306, MAKES CLEAR THAT MARGINAL OWNER-DRIVERS CAN DEMORALIZE
LARGE SEGMENTS OF THE TRANSPORTATION INDUSTRY.  MOREOVER, THE STARK
FACT IS THAT HERE, AS IN THE "NEWSBOYS" CASE, THE UNION'S EFFORT WAS TO
IMPROVE THE ECONOMIC STATUS OF THE GREASE PEDDLERS.  THIS IS MADE CLEAR
BY THE STIPULATED FACTS: 

"THESE SELF-EMPLOYED PEDDLERS HAVE NO ESTABLISHED PLACES OF BUSINESS;
NO EMPLOYEES, EXCEPT AN OCCASIONAL LOADER; NO CAPITAL INVESTMENT EXCEPT
A SMALL EQUITY IN A TRUCK; NO SKILL OR SPECIAL QUALIFICATIONS EXCEPT
THE ABILITY TO LOAD, UNLOAD AND DRIVE A TRUCK  ...  .  THEIR EARNINGS
REPRESENT THE DIFFERENCE BETWEEN THE BUY AND SELL PRICE OF THE WASTE
GREASE  ...  ." 

WHEN THE LEVEL OF PRICES PAID TO PEDDLERS BY PROCESSORS DROPPED IN
1952-1954 TO LESS THAN HALF OF THE PREVIOUS PRICE, THE INCOME OF
PEDDLERS WAS SUBSTANTIALLY REDUCED.  THIS LED TO INTENSIVE COMPETITION
BETWEEN PEDDLERS.  AS A RESULT, THE UNIONIZATION PROGRAM WAS DESIGNED
TO INCREASE THE PROFITS OF THE GREASE PEDDLERS BY ALLOCATING ROUTES AND
CUSTOMERS BETWEEN THEM AND BY INCREASING THE MARGIN BETWEEN THE PRICE
PAID BY THE PEDDLERS AND THE PRICE THEY WOULD RECEIVE. 

THE COURT SAID MANY YEARS BEFORE THIS AGE OF ENLIGHTENMENT THAT
UNIONS WERE RIGHTFULLY CONCERNED WITH "THE STANDARD OF WAGES OF THEIR
TRADE IN THE NEIGHBORHOOD."  AMERICAN FOUNDRIES V. TRI-CITY COUNCIL,
257 U.S. 184, 209.  THIS FACT UNDERLIES THE PRESENT CONTROVERSY.  ALL
WHO HAUL GREASE, WHETHER "EMPLOYEES" OR "PEDDLERS," ARE IN THE SAME
BOAT.  PROTECTION OF ONE PROTECTS ALL.  THE UNION PLAINLY HAS A
LEGITIMATE INTEREST IN THE CONDITIONS IN THE INDUSTRY WHICH INCREASE OR
REDUCE EMPLOYMENT OPPORTUNITIES OR INCREASE OR REDUCE LABOR'S REWARDS.*
THE FACT THAT ILLEGAL ACTS WERE COMMITTED DOES NOT ALTER THE FACT THAT
AT HEART WE HAVE HERE A "LABOR DISPUTE" WITHIN THE MEANING OF THE
NORRIS-LAGUARDIA ACT.  THAT DEFINITION IS BROAD AND INCLUDES "ANY
CONTROVERSY CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING
THE ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING,
MAINTAINING, CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF
EMPLOYMENT."  29 U.S.C. SEC. 113(C).  TO THE EXTENT THAT THE
STIPULATIONS IN THIS CASE TEND TO PRECLUDE THE CONCLUSION THAT THERE
WAS A "LABOR DISPUTE" THOSE STIPULATIONS SHOULD NOT CONTROL.  FOR OTHER
STIPULATIONS OF FACT COMPEL THE CONTRARY CONCLUSION, WHICH IS
ESSENTIALLY A LEGAL QUESTION.  ESTATE OF SANFORD V. COMMISSIONER, 308
U.S. 39.  "WE ARE NOT BOUND TO ACCEPT, AS CONTROLLING, STIPULATIONS AS
TO QUESTIONS OF LAW."  ID., 51. 

*"THE SMALL OWNER-OPERATOR OR 'GYPSY' NEEDS ONLY ENOUGH CAPITAL TO
MAKE A DOWN PAYMENT ON A TRUCK AND IS FREE TO OFFER HIS SERVICES AT
WHATEVER RATES HE MAY BE WILLING TO ACCEPT.  IN ORDER TO PROTECT HIS
EQUITY IN HIS TRUCK HE TENDS, UNDER COMPETITIVE PRESSURES, TO
PROGRESSIVELY LOWER HIS RATES UNTIL HE IS TAKING A BARE SUBSISTENCE FOR
HIS OWN WAGES AND IS PROVIDING INADEQUATE RESERVES FOR REPAIRS,
MAINTENANCE, OR REPLACEMENT.  HE WORKS LONG HOURS, ATTEMPTS TO DO HIS
OWN REPAIR WORK, OFTEN DISREGARDS HEALTH AND SAFETY REQUIREMENTS AND
LOAD RESTRICTIONS.  HE IS DIFFICULT TO ORGANIZE INTO TRADE ASSOCIATIONS
FOR PURPOSES OF SELF-REGULATION OF RATES AND STANDARDS; AND HE IS
LIKEWISE DIFFICULT TO ORGANIZE INTO A TRADE UNION.  HE OFTEN LOSES HIS
TRUCK THROUGH INABILITY TO MAINTAIN PAYMENTS; OR WHEN IT WEARS OUT HE
HAS NO FUNDS ACCUMULATED FOR ANOTHER.  BUT THERE ARE ALWAYS NEW
HOPEFULS TO REPLACE HIM, ESPECIALLY IN A PERIOD OF CONSIDERABLE
UNEMPLOYMENT (AS IN THE THIRTIES), WHEN AN ATTEMPT TO CREATE SELF
EMPLOYMENT APPEARS TO BE THE ONLY ALTERNATIVE TO NO EMPLOYMENT
WHATEVER.  UNLESS REGULATED IN SOME MANNER, THE SMALL OWNER-OPERATOR
CONSTITUTES A MENACE TO EMPLOYMENT CONDITIONS, STANDARDS, AND IN FACT
TO THE STABILITY OF THE ENTIRE INDUSTRY."  GILLINGHAM, THE TEAMSTERS
UNION ON THE WEST COAST, INSTITUTE OF INDUSTRIAL RELATIONS, U. OF
CALIF. (1956), PP. 35-36. 

THE FACT THAT ACTS WERE COMMITTED WHICH OVERSTEPPED THE BOUNDS SET BY
THE INTERLACING SHERMAN, CLAYTON AND NORRIS-LAGUARDIA ACTS MEANS THAT
THE FULL ARRAY OF ANTITRUST REMEDIES CAN BE BROUGHT AGAINST THE GREASE
PEDDLERS, INSOFAR AS THEY COMBINED WITH PROCESSORS, A NONLABOR GROUP. 
SEE ALLEN BRADLEY CO. V. LOCAL UNION, 325 U.S. 797, 812.  YET THAT DOES
NOT MEAN THAT THEY CAN BE EXPELLED FROM THE UNION.  SINCE THERE WAS A
"LABOR DISPUTE" WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT, FEDERAL
COURTS HAVE NO POWER TO COMPEL THE GREASE PEDDLERS TO RESIGN AS MEMBERS
OF THE UNION.  FOR THAT ACT EXPRESSLY BARS A FEDERAL COURT FROM
ENJOINING ANYONE FROM "BECOMING OR REMAINING A MEMBER OF ANY LABOR
ORGANIZATION."  29 U.S.C. SEC. 104(B). 

THE FACT THAT THE GREASE PEDDLERS MAY HAVE COMMITTED FEDERAL OFFENSES
OR OTHERWISE SHOWN THEMSELVES TO BE LAWLESS, NOT LAW-ABIDING, IN NO WAY
QUALIFIES THE ABSOLUTE COMMAND OF THE NORRIS-LAGUARDIA ACT.  INDEED, WE
HELD IN ALLEN BRADLEY CO. V. LOCAL UNION, SUPRA, 812, THAT A UNION THAT
COMBINES WITH BUSINESS INTERESTS TO VIOLATE THE ANTITRUST LAWS COULD BE
ENJOINED ONLY AS RESPECTS "THOSE PROHIBITED ACTIVITIES."  OTHERWISE WE
SAID THE INJUNCTION WOULD RUN "DIRECTLY COUNTER" TO THE NORRIS
LAGUARDIA ACT.  ID., 812.  WHEN WE SANCTION THE ADDITION OF THE PENALTY
OF EXPULSION FROM UNION MEMBERSHIP, WE QUALIFY THE ALLEN BRADLEY
DECISION. 
..END :





VITORATOS V. WALSH 371 U.S. 114 


NO. 507, MISC.  DECIDED NOVEMBER 19, 1962.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  173 OHIO ST. 467, 183 N.E.2D
917. 


VITORATOS V. WALSH, MUNICIPAL COURT CLERK. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















LA ROSE V. TAHASH 371 U.S. 114 


NO. 445, MISC.  DECIDED NOVEMBER 19, 1962.  - APPEAL DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  262 MINN. 552,
115 N.W.2D 687. 


LA ROSE V. TAHASH, WARDEN. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















PRESSER V. UNITED STATES 371 U.S. 71 


NO. 25.  ARGUED MARCH 22, 26, 1962.  - RESTORED TO THE CALENDAR FOR
REARGUMENT APRIL 2, 1962.  - REARGUED OCTOBER 8, 1962.  - DECIDED
NOVEMBER 13, 1962.  - JUDGMENT AFFIRMED BY AN EQUALLY DIVIDED COURT.  -
REPORTED BELOW:  292 F.2D 171. 


PRESSER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEAL FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












EX PARTE GEORGE 371 U.S. 72 


NO. 375.  DECIDED NOVEMBER 13, 1962.  - REPORTED BELOW:  163 TEX. - ,
358 S.W.2D 590. 


PETITIONER'S ACTION IN PEACEFULLY PICKETING PREMISES OF A WHOLLY OWNED
AND CONTROLLED SUBSIDIARY OF AN EMPLOYER INVOLVED IN A LABOR DISPUTE
WAS AT LEAST ARGUABLY PROTECTED BY SEC. 7 OF THE NATIONAL LABOR
RELATIONS ACT, AND A STATE COURT WAS WITHOUT JURISDICTION TO ENJOIN
SUCH PICKETING OR TO IMPRISON PETITIONER FOR VIOLATING ITS TEMPORARY
INJUNCTION AGAINST SUCH PICKETING.  THEREFORE, CERTIORARI IS GRANTED;
THE JUDGMENT OF THE SUPREME COURT OF TEXAS SETTING ASIDE ITS ORIGINAL
WRIT OF HABEAS CORPUS IS VACATED; AND THE CAUSE IS REMANDED TO THAT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  PP.
72-73. 

EX PARTE GEORGE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED.  WE VACATE THE JUDGMENT OF
THE SUPREME COURT OF TEXAS SETTING ASIDE THE ORIGINAL WRIT OF HABEAS
CORPUS ISSUED BY IT ON JULY 10, 1961, AND REMAND THE CAUSE TO THAT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

AMERICAN OIL COMPANY WAS INVOLVED IN A LABOR DISPUTE WITH THE
NATIONAL MARITIME UNION, WHICH REPRESENTED UNLICENSED CREW MEMBERS
ABOARD COMPANY VESSELS.  THE UNION PEACEFULLY PICKETED A REFINERY
OPERATED BY A SUBSIDIARY OF AMERICAN THAT HAD A VALID COLLECTIVE
BARGAINING AGREEMENT WITH THE OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION.  UPON FINDINGS THAT THE OBJECT OF THE NATIONAL
MARITIME UNION'S PICKETING OF THE REFINERY WAS TO SECURE THE DISREGARD,
BREACH OR VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT BY THE
REFINERY WORKERS AND THEIR UNION, IN VIOLATION OF ART. 5154D, SEC. 4,
VERNON'S TEX. REV. CIV. STAT., ANN., THE SUBSIDIARY OBTAINED A
TEMPORARY INJUNCTION FROM THE TENTH JUDICIAL DISTRICT COURT OF
GALVESTON COUNTY AGAINST PICKETING AT THE REFINERY.  THE INJUNCTION IN
EXPRESS TERMS BOUND THE PETITIONER, AN OFFICIAL OF THE NATIONAL
MARITIME UNION.  PETITIONER NEVERTHELESS PICKETED THE REFINERY AFTER
PUBLICLY ANNOUNCING HIS INTENTION SO TO DO, ON THE GROUND THAT HE DID
NOT BELIEVE THAT THE COURT HAD JURISDICTION TO ISSUE THE INJUNCTION. 
HE WAS ADJUDGED IN CONTEMPT. 

THE ONLY ISSUE MOOTED ON THE HABEAS CORPUS PROCEEDING WAS THE
JURISDICTION OF THE DISTRICT COURT TO ISSUE THE INJUNCTION.  UNDER
TEXAS LAW ONE MAY NOT BE PUNISHED FOR CONTEMPT FOR VIOLATING A
TEMPORARY INJUNCTION, AS HERE, GRANTED BY A COURT HAVING NO
JURISDICTION OF THE SUBJECT MATTER.  EX PARTE TWEDELL, 158 TEX. 214,
309 S.W.2D 834; EX PARTE DILLEY, 160 TEX. 522, 334 S.W.2D 425.  THE
DISTRICT COURT WAS WITHOUT JURISDICTION IF PETITIONER'S PICKETING WAS
ARGUABLY PROHIBITED OR ARGUABLY PROTECTED BY THE NATIONAL LABOR
RELATIONS ACT.  "IN THE ABSENCE OF THE BOARD'S CLEAR DETERMINATION THAT
AN ACTIVITY IS NEITHER PROTECTED NOR PROHIBITED OR OF COMPELLING
PRECEDENT APPLIED TO ESSENTIALLY UNDISPUTED FACTS, IT IS NOT FOR THIS
COURT TO DECIDE WHETHER SUCH ACTIVITIES ARE SUBJECT TO STATE
JURISDICTION."  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S.
236, 246.   THE TEXAS SUPREME COURT HELD THAT PETITIONER'S CONDUCT WAS
NEITHER ARGUABLY PROHIBITED NOR ARGUABLY PROTECTED BY THE ACT.  163
TEX. - , 358 S.W.2D 590.  WE DISAGREE.  EVEN ASSUMING, WITHOUT
DECIDING, THAT THE PICKETING WOULD NOT FALL WITHIN THE PROHIBITIONS OF
SEC. 8(B)(1)(A) OR SEC. 8(B)(4)(I)(B) OF THE NATIONAL LABOR RELATIONS
ACT, AS AMENDED, WE HOLD, IN LIGHT OF THE DISTRICT COURT'S FINDING THAT
AMERICAN WHOLLY OWNS THE SUBSIDIARY AND "DIRECTS AND CONTROLS ALL OF
...  ITS ACTIVITIES," THAT PETITIONER'S PICKETING WAS CONDUCT AT LEAST
ARGUABLY PROTECTED BY SEC. 7 OF THE ACT.  VACATED AND REMANDED. 
..END :






LANZA V. WAGNER 371 U.S. 74 


NO. 452.  DECIDED NOVEMBER 13, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  11 N.Y.2D 317, 183
N.E.2D 670. 


LANZA ET AL. V. WAGNER, MAYOR OF NEW YORK CITY, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















UNITED STATES V. LOEW'S INCORPORATED 371 U.S. 38 


NO. 42.  ARGUED OCTOBER 16, 1962.  - DECIDED NOVEMBER 5, 1962.* - 189 F.
SUPP. 373, JUDGMENTS VACATED AND CAUSES REMANDED. 

*TOGETHER WITH NO. 43, LOEW'S INCORPORATED ET AL V. UNITED STATES,
AND NO. 44, C&C SUPER CORP. V. UNITED STATES, ALSO ON APPEALS FROM THE
SAME COURT. 


1.  SECTION 1 OF THE SHERMAN ACT WAS VIOLATED WHEN INDIVIDUAL
DISTRIBUTORS OF COPYRIGHTED FEATURE MOTION PICTURE FILMS FOR TELEVISION
EXHIBITION ENGAGED IN BLOCK BOOKING SUCH FILMS TO TELEVISION
BROADCASTING STATIONS - I.E., CONDITIONING THE LICENSE OR SALE OF THE
RIGHT TO EXHIBIT ONE OR MORE FEATURE FILMS UPON ACCEPTANCE BY EACH
STATION OF A PACKAGE OR BLOCK OF FILMS CONTAINING ONE OR MORE UNWANTED
OR INFERIOR FILMS - EVEN IN THE ABSENCE OF ANY COMBINATION OR
CONSPIRACY BETWEEN THE DISTRIBUTORS AND ANY MONOPOLIZATION OR ATTEMPT
TO MONOPOLIZE.  PP. 39-50, 52. 

2.  THE FACT THAT, ON THE RECORDS IN THESE CASES, EACH DEFENDANT WAS
FOUND TO HAVE ENTERED INTO A COMPARATIVELY SMALL NUMBER OF ILLEGAL
CONTRACTS DID NOT MAKE IT IMPROPER FOR THE DISTRICT COURT TO GRANT
INJUNCTIVE RELIEF.  PP. 50-51. 

3.  THE BLOCK BOOKING ENGAGED IN BY ONE OF THE DEFENDANTS CANNOT BE
JUSTIFIED OR EXCUSED BY ITS PLEA OF BUSINESS NECESSITY, SINCE THE
THRUST OF THE ANTITRUST LAWS CANNOT BE AVOIDED MERELY BY CLAIMING THAT
THE OTHERWISE ILLEGAL CONDUCT WAS COMPELLED BY CONTRACTUAL OBLIGATIONS
TO A THIRD PARTY.  PP. 51-52. 

4.  THE DECREES ENTERED BY THE DISTRICT COURT SHOULD BE AMENDED SO AS
TO: 

(A)  REQUIRE THE DEFENDANTS TO PRICE FILMS INDIVIDUALLY AND OFFER
THEM ON A PICTURE-BY-PICTURE BASIS.  PP. 52-54. 

(B)  PROHIBIT DIFFERENTIALS IN PRICE BETWEEN A FILM WHEN SOLD
INDIVIDUALLY AND WHEN SOLD AS PART OF A PACKAGE, EXCEPT WHEN SUCH PRICE
DIFFERENTIALS ARE JUSTIFIED BY RELEVANT AND LEGITIMATE COST
CONSIDERATIONS.  PP. 54-55. 

(C)  PROSCRIBE "TEMPORARY" REFUSALS BY A DISTRIBUTOR TO DEAL ON LESS
THAN A BLOCK BASIS, EXCEPT THAT A DISTRIBUTOR MAY BRIEFLY DEFER
LICENSING OR SELLING TO A CUSTOMER PENDING THE EXPEDITIOUS CONCLUSION
OF BONA FIDE NEGOTIATIONS ALREADY BEING CONDUCTED WITH A COMPETING
STATION ON A PROPOSAL WHEREIN THE DISTRIBUTOR HAS SIMULTANEOUSLY
OFFERED TO LICENSE OR SELL FILMS EITHER INDIVIDUALLY OR IN A PACKAGE. 
P. 55. 

UNITED STATES V. LOEW'S INCORPORATED ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT. 

THESE CONSOLIDATED APPEALS PRESENT AS A KEY QUESTION THE VALIDITY
UNDER SEC. 1 OF THE SHERMAN ACT, (FN1) OF BLOCK BOOKING OF COPYRIGHTED
FEATURE MOTION PICTURES FOR TELEVISION EXHIBITION.  WE HOLD THAT THE
TYING AGREEMENTS HERE ARE ILLEGAL AND IN VIOLATION OF THE ACT. 

THE UNITED STATES BROUGHT SEPARATE CIVIL ANTITRUST ACTIONS IN THE
SOUTHERN DISTRICT OF NEW YORK IN 1957 AGAINST SIX MAJOR DISTRIBUTORS OF
PRE-1948 COPYRIGHTED MOTION PICTURE FEATURE FILMS FOR TELEVISION
EXHIBITION, ALLEGING THAT EACH DEFENDANT HAD ENGAGED IN BLOCK BOOKING
IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  THE COMPLAINTS ASSERTED
THAT THE DEFENDANTS HAD, IN SELLING TO TELEVISION STATIONS, CONDITIONED
THE LICENSE OR SALE OF ONE OR MORE FEATURE FILMS UPON THE ACCEPTANCE BY
THE STATION OF A PACKAGE OR BLOCK CONTAINING ONE OR MORE UNWANTED OR
INFERIOR FILMS.  NO COMBINATION OR CONSPIRACY AMONG THE DISTRIBUTORS
WAS ALLEGED; NOR WAS ANY MONOPOLIZATION OR ATTEMPT TO MONOPOLIZE UNDER
SEC. 2 OF THE SHERMAN ACT AVERRED.  THE SOLE CLAIM OF ILLEGALITY RESTED
ON THE MANNER IN WHICH EACH DEFENDANT HAD MARKETED ITS PRODUCT.  THE
SUCCESSFUL PRESSURE APPLIED TO TELEVISION STATION CUSTOMERS TO ACCEPT
INFERIOR FILMS ALONG WITH DESIRABLE PICTURES WAS THE GRAVAMEN OF THE
COMPLAINT. 

AFTER A LENGTHY CONSOLIDATED TRIAL, THE DISTRICT JUDGE FILED
EXHAUSTIVE FINDINGS OF FACT, CONCLUSIONS OF LAW, AND A CAREFULLY
REASONED OPINION, 189 F. SUPP. 373, IN WHICH HE FOUND THAT THE ACTIONS
OF THE DEFENDANTS CONSTITUTED VIOLATIONS OF SEC. 1 OF THE SHERMAN ACT. 
THE CONCLUSIONAL FINDING OF FACT AND LAW WAS THAT: 

"  ...  THE SEVERAL DEFENDANTS HAVE EACH, FROM TIME TO TIME AND TO
THE EXTENT SET FORTH IN THE SPECIFIC FINDINGS OF FACT, LICENSED OR
OFFERED TO LICENSE ONE OR MORE FEATURE FILMS TO TELEVISION STATIONS ON
CONDITION THAT THE LICENSEE ALSO LICENSE ONE OR MORE OTHER SUCH FEATURE
FILMS, AND HAVE, FROM TIME TO TIME AND TO THE EXTENT SET FORTH IN THE
SPECIFIC FINDINGS OF FACT, REFUSED, EXPRESSLY OR IMPLIEDLY, TO LICENSE
FEATURE FILMS TO TELEVISION STATIONS UNLESS ONE OR MORE OTHER SUCH
FEATURE FILMS WERE ACCEPTED BY THE LICENSEE."  189 F. SUPP., AT 397
398. 

THE JUDGE RECOGNIZED THAT THERE WAS KEEN COMPETITION BETWEEN THE
DEFENDANT DISTRIBUTORS, AND THEREFORE RESTED HIS CONCLUSION SOLELY ON
THE INDIVIDUAL BEHAVIOR OF EACH IN ENGAGING IN BLOCK BOOKING.  IN
REACHING HIS DECISION HE CAREFULLY CONSIDERED THE EVIDENCE RELATING TO
EACH OF THE 68 LICENSING AGREEMENTS THAT THE GOVERNMENT HAD CONTENDED
INVOLVED BLOCK BOOKING.  HE CONCLUDED THAT ONLY 25 OF THE CONTRACTS
WERE ILLEGALLY ENTERED INTO.  NINE OF THESE BELONGED TO DEFENDANT C&C
SUPER CORP., WHICH HAD AN ADMITTED POLICY OF INSISTING ON BLOCK BOOKING
THAT IT SOUGHT TO JUSTIFY ON SPECIAL GROUNDS. 

OF THE OTHERS, DEFENDANT LOEW'S, INCORPORATED, HAD IN TWO
NEGOTIATIONS THAT RESULTED IN LICENSING AGREEMENTS DECLINED TO FURNISH
STATIONS KWTV OF OKLAHOMA CITY AND WBRE OF WILKES-BARRE WITH INDIVIDUAL
FILM PRICES AND HAD REFUSED THEIR REQUESTS FOR PERMISSION TO SELECT
AMONG THE FILMS IN THE GROUPS.  LOEW'S EXACTED FROM KWTV A CONTRACT FOR
THE ENTIRE LOEW'S LIBRARY OF 723 FILMS, INVOLVING PAYMENTS OF
$314,725.20.  THE WBRE AGREEMENT WAS FOR A BLOCK OF 100 FILMS, PAYMENTS
TO TOTAL $15,000. 

DEFENDANT SCREEN GEMS, INC., WAS ALSO FOUND TO HAVE BLOCK BOOKED TWO
CONTRACTS, BOTH WITH WTOP OF WASHINGTON, D.C., ONE CALLING FOR A
PACKAGE OF 26 FILMS AND PAYMENTS OF $20,800 AND THE OTHER FOR 52 FILMS
AND PAYMENTS OF $40,000.  THE JUDGE ACCEPTED THE TESTIMONY OF STATION
OFFICIALS THAT THEY HAD REQUESTED THE RIGHT TO SELECT FILMS AND THAT
THEIR REQUESTS WERE REFUSED. 

ASSOCIATED ARTISTS PRODUCTIONS, INC., NEGOTIATED FOUR CONTRACTS THAT
WERE FOUND TO BE BLOCK BOOKED.  STATION WTOP WAS TO PAY $118,800 FOR
THE LICENSE OF 99 PICTURES, WHICH WERE DIVIDED INTO THREE GROUPS OF 33
FILMS, BASED ON DIFFERENCES IN QUALITY.  TO GET "TREASURE OF THE SIERRA
MADRE," "CASABLANCA," "JOHNNY BELINDA," "SERGEANT YORK," AND "THE MAN
WHO CAME TO DINNER," AMONG OTHERS, WTOP ALSO HAD TO TAKE SUCH FILMS AS
"NANCY DREW TROUBLESHOOTER," "TUGBOAT ANNIE SAILS AGAIN," "KID
NIGHTINGALE," "GORILLA MAN," AND "TEAR GAS SQUAD."  A SIMILAR CONTRACT
FOR 100 PICTURES, INVOLVING A LICENSE FEE OF $140,000, WAS ENTERED INTO
BY WMAR OF BALTIMORE.  TRIANGLE PUBLICATIONS, OWNER AND OPERATOR OF
FIVE STATIONS, WAS REFUSED THE RIGHT TO SELECT AMONG ASSOCIATED'S
PACKAGES, AND ULTIMATELY PURCHASED THE ENTIRE LIBRARY OF 754 FILMS FOR
A PRICE OF $2,262,000 PLUS 10% OF GROSS RECEIPTS.  STATION WJAR OF
PROVIDENCE, WHICH LICENSED A PACKAGE OF 58 FEATURES FOR A FEE OF
$25,230, HAD ASKED FIRST IF CERTAIN FILMS IT CONSIDERED UNDESIRABLE
COULD BE DROPPED FROM THE OFFERED PACKAGES AND WAS TOLD THAT THE
PACKAGES COULD NOT BE SPLIT. 

DEFENDANT NATIONAL TELEFILM ASSOCIATES WAS FOUND TO HAVE ENTERED INTO
FIVE BLOCK BOOKED CONTRACTS.   STATION WMAR WANTED ONLY 10 SELZNICK
FILMS, BUT WAS TOLD THAT IT COULD NOT HAVE THEM UNLESS IT ALSO BOUGHT
24 INFERIOR FILMS FROM THE "TNT" PACKAGE AND 12 UNWANTED "FABULOUS
40'S."  IT BOUGHT ALL OF THESE, FOR A TOTAL OF $62,240.  STATION WBRE,
BEFORE BUYING THE "FOX 52" PACKAGE IN ITS ENTIRETY FOR $7,358.50,
REQUESTED AND WAS REFUSED THE RIGHT TO ELIMINATE UNDESIRABLE FEATURES. 
STATION WWLP OF SPRINGFIELD, MASSACHUSETTS, INQUIRED ABOUT THE
POSSIBILITY OF SPLITTING TWO OF THE PACKAGES, WAS TOLD THIS WAS NOT
POSSIBLE, AND THEN BOUGHT A TOTAL OF 59 FILMS IN TWO PACKAGES FOR
$8,850.  A FULL PACKAGE CONTRACT FOR NATIONAL'S "ROCKET 86" GROUP OF 86
FILMS WAS ENTERED INTO BY KPIX OF SAN FRANCISCO, PAYMENTS TO TOTAL
$232,200, AFTER KPIX REQUESTED AND WAS DENIED PERMISSION TO ELIMINATE
UNDESIRABLE FILMS FROM THE PACKAGE.  STATION WJAR WANTED TO DROP 10 OR
12 BRITISH FILMS FROM THIS DEFENDANT'S "CHAMPAGNE 58" PACKAGE, WAS TOLD
THAT NONE COULD BE DELETED, AND THEN BOUGHT THE BLOCK FOR $31,000. 

THE JUDGE FOUND THAT DEFENDANT UNITED ARTISTS CORPORATION HAD IN
THREE CONSUMMATED NEGOTIATIONS CONDITIONED THE SALE OF FILMS ON THE
PURCHASE OF AN ENTIRE PACKAGE.  THE "TOP 39" WERE LICENSED BY WAAM OF
BALTIMORE FOR $40,000 ONLY AFTER RECEIPT OF A REFUSAL TO SELL 13 OF THE
39 FILMS IN THE PACKAGE.  STATION WHTN OF HUNTINGTON, WEST VIRGINIA,
PURCHASED "AWARD 52" FOR $16,900 AFTER UNITED ARTISTS REFUSED TO DEAL
ON ANY BASIS OTHER THAN PURCHASE OF THE ENTIRE 52 FILMS.  THIRTY-NINE
FILMS WERE PURCHASED BY WWLP FOR $5,850 AFTER AN INITIAL INQUIRY ABOUT
SELECTION OF TITLES WAS REFUSED. 

SINCE DEFENDANT C&C WAS FOUND TO HAVE HAD AN OVERALL POLICY OF BLOCK
BOOKING, THE COURT DID NOT ANALYZE THE PARTICULAR CIRCUMSTANCES OF THE
NINE NEGOTIATIONS WHICH HAD RESULTED IN THE LICENSING OF PACKAGES OF
FILMS.  C&C'S POLICIES RESULTED IN AT LEAST ONE STATION HAVING TO TAKE
A PACKAGE IN WHICH "CERTAIN OF THE FILMS WERE UNPLAYABLE SINCE THEY HAD
A FOREIGN LANGUAGE SOUND TRACK."  189 F. SUPP., AT 389. 

THE COURT ENTERED SEPARATE FINAL JUDGMENTS AGAINST THE DEFENDANTS,
WHEREIN EACH WAS ENJOINED FROM:

"(A) CONDITIONING OR TYING, OR ATTEMPTING TO CONDITION OR TIE, THE
PURCHASE OR LICENSE OF THE RIGHT TO EXHIBIT ANY FEATURE FILM OVER ANY
TELEVISION STATION UPON THE PURCHASE OR LICENSE OF ANY OTHER FILM; 

"(B) CONDITIONING THE PURCHASE OR LICENSE OF THE RIGHT TO EXHIBIT ANY
FEATURE FILM OVER ANY TELEVISION STATION UPON THE PURCHASE OR LICENSE
FOR EXHIBITION OVER ANY OTHER TELEVISION STATION OF THAT FEATURE FILM,
OR ANY OTHER FILM; 

"(C) ENTERING INTO ANY AGREEMENT TO SELL OR LICENSE THE RIGHT TO
EXHIBIT ANY FEATURE FILM OVER ANY TELEVISION STATION IN WHICH THE
DIFFERENTIAL BETWEEN THE PRICE OR FEE FOR SUCH FEATURE FILM WHEN SOLD
OR LICENSED ALONE AND THE PRICE OR FEE FOR THE SAME FILM WHEN SOLD OR
LICENSED WITH ONE OR MORE OTHER FILM HAS THE EFFECT OF CONDITIONING THE
SALE OR LICENSE OF SUCH FILM UPON THE SALE OR LICENSE OF ONE OR MORE
OTHER FILMS." 

ALL OF THE DEFENDANTS EXCEPT NATIONAL TELEFILM (FN2) APPEAL FROM THE
DECREE.  THE APPEALS OF DEFENDANTS LOEW'S, SCREEN GEMS, ASSOCIATED
ARTISTS, AND UNITED ARTISTS RAISE IDENTICAL ISSUES AND ARE CONSOLIDATED
AS NO. 43.  THE APPEAL OF DEFENDANT C&C RAISES ADDITIONAL ISSUES, AND
IS THEREFORE SEPARATELY NUMBERED AS NO. 44.  THE GOVERNMENT, ALTHOUGH
IT WON ON THE MERITS BELOW, ASSERTS IN A CROSS-APPEAL (NO. 42) THAT THE
SCOPE AND SPECIFICITY OF THE DECREE ENTERED BY THE DISTRICT COURT WERE
INADEQUATE TO PREVENT THE CONTINUED ATTAINMENT OF ILLEGAL OBJECTIVES. 
IT SEEKS TO HAVE THE DECREE BROADENED IN A NUMBER OF WAYS.  ALL OF THE
DEFENDANTS BELOW OPPOSE THESE MODIFICATIONS.  THE CASES ARE HERE ON
DIRECT APPEAL FROM THE DISTRICT COURT UNDER SEC. 2 OF THE EXPEDITING
ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29.  WE NOTED PROBABLE
JURISDICTION, 368 U.S. 973, AND CONSOLIDATED THE APPEALS.  WE SHALL
CONSIDER NO. 43 FIRST, SINCE APPELLANTS THERE RAISE THE FUNDAMENTAL
QUESTION WHETHER THEIR ACTIVITIES WERE IN VIOLATION OF THE ANTITRUST
LAWS.  WE SHALL THEREAFTER CONSIDER NO. 44, THE SPECIAL ARGUMENTS OF
APPELLANT C&C, AND FINALLY NO. 42, THE GOVERNMENT'S REQUEST FOR
BROADENING THE DECREE. 

                      I. 

THIS CASE RAISES THE RECURRING QUESTION OF WHETHER SPECIFIC TYING
ARRANGEMENTS VIOLATE SEC. 1 OF THE SHERMAN ACT.  (FN3)  THIS COURT HAS
RECOGNIZED THAT "TYING AGREEMENTS SERVE HARDLY ANY PURPOSE BEYOND THE
SUPPRESSION OF COMPETITION," STANDARD OIL CO. OF CALIFORNIA V. UNITED
STATES, 337 U.S. 293, 305-306.  THEY ARE AN OBJECT OF ANTITRUST CONCERN
FOR TWO REASONS - THEY MAY FORCE BUYERS INTO GIVING UP THE PURCHASE OF
SUBSTITUTES FOR THE TIED PRODUCT, SEE TIMES-PICAYUNE PUB. CO. V. UNITED
STATES, 345 U.S. 594, 605, AND THEY MAY DESTROY THE FREE ACCESS OF
COMPETING SUPPLIERS OF THE TIED PRODUCT TO THE CONSUMING MARKET, SEE
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 396.  A TIE-IN
CONTRACT MAY HAVE ONE OR BOTH OF THESE UNDESIRABLE EFFECTS WHEN THE
SELLER, BY VIRTUE OF HIS POSITION IN THE MARKET FOR THE TYING PRODUCT,
HAS ECONOMIC LEVERAGE SUFFICIENT TO INDUCE HIS CUSTOMERS TO TAKE THE
TIED PRODUCT ALONG WITH THE TYING ITEM.  THE STANDARD OF ILLEGALITY IS
THAT THE SELLER MUST HAVE "SUFFICIENT ECONOMIC POWER WITH RESPECT TO
THE TYING PRODUCT TO APPRECIABLY RESTRAIN FREE COMPETITION IN THE
MARKET FOR THE TIED PRODUCT  ...  ."  NORTHERN PACIFIC R. CO. V. UNITED
STATES, 356 U.S. 1, 6.  MARKET DOMINANCE - SOME POWER TO CONTROL PRICE
AND TO EXCLUDE COMPETITION - IS BY NO MEANS THE ONLY TEST OF WHETHER
THE SELLER HAS THE REQUISITE ECONOMIC POWER.  EVEN ABSENT A SHOWING OF
MARKET DOMINANCE, THE CRUCIAL ECONOMIC POWER MAY BE INFERRED FROM THE
TYING PRODUCT'S DESIRABILITY TO CONSUMERS OR FROM UNIQUENESS IN ITS
ATTRIBUTES.  (FN4) 

THE REQUISITE ECONOMIC POWER IS PRESUMED WHEN THE TYING PRODUCT IS
PATENTED OR COPYRIGHTED, INTERNATIONAL SALT CO. V. UNITED STATES, 332
U.S. 392; UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131. 
THIS PRINCIPLE GREW OUT OF A LONG LINE OF PATENT CASES WHICH HAD
EVENTUATED IN THE DOCTRINE THAT A PATENTEE WHO UTILIZED TYING
ARRANGEMENTS WOULD BE DENIED ALL RELIEF AGAINST INFRINGEMENTS OF HIS
PATENT.  MOTION PICTURE PATENTS CO. V. UNIVERSAL FILM MFG. CO., 243
U.S. 502; CARBICE CORP. V. AMERICAN PATENTS DEV.  CORP., 283 U.S. 27;
LEITCH MFG. CO. V. BARBER CO., 302 U.S. 458; ETHYL GASOLINE CORP. V.
UNITED STATES, 309 U.S. 436; MORTON SALT CO. V. G.S.  SUPPIGER CO., 314
U.S. 488; MERCOID CORP. V. MID-CONTINENT INVESTMENT CO., 320 U.S. 661. 
THESE CASES REFLECT A HOSTILITY TO USE OF THE STATUTORILY GRANTED
PATENT MONOPOLY TO EXTEND THE PATENTEE'S ECONOMIC CONTROL TO UNPATENTED
PRODUCTS.  THE PATENTEE IS PROTECTED AS TO HIS INVENTION, BUT MAY NOT
USE HIS PATENT RIGHTS TO EXACT TRIBUTE FOR OTHER ARTICLES. 

SINCE ONE OF THE OBJECTIVES OF THE PATENT LAWS IS TO REWARD
UNIQUENESS, THE PRINCIPLE OF THESE CASES WAS CARRIED OVER INTO
ANTITRUST LAW ON THE THEORY THAT THE EXISTENCE OF A VALID PATENT ON THE
TYPING PRODUCT, WITHOUT MORE, ESTABLISHES A DISTINCTIVENESS SUFFICIENT
TO CONCLUDE THAT ANY TYING ARRANGEMENT INVOLVING THE PATENTED PRODUCT
WOULD HAVE ANTICOMPETITIVE CONSEQUENCES.  E.G., INTERNATIONAL SALT CO.
V. UNITED STATES, 332 U.S. 392.  IN UNITED STATES V. PARAMOUNT
PICTURES, INC., 334 U.S. 131, 156-159, THE PRINCIPLE OF THE PATENT
CASES WAS APPLIED TO COPYRIGHTED FEATURE FILMS WHICH HAD BEEN BLOCK
BOOKED INTO MOVIE THEATERS.  THE COURT REASONED THAT: 

"THE COPYRIGHT LAW, LIKE THE PATENT STATUTES, MAKES REWARD TO THE
OWNER A SECONDARY CONSIDERATION.  IN FOX FILM CORP. V. DOYAL, 286 U.S.
123, 127, CHIEF JUSTICE HUGHES SPOKE AS FOLLOWS RESPECTING THE
COPYRIGHT MONOPOLY GRANTED BY CONGRESS, 'THE SOLE INTEREST OF THE
UNITED STATES AND THE PRIMARY OBJECT IN CONFERRING THE MONOPOLY LIE IN
THE GENERAL BENEFITS DERIVED BY THE PUBLIC FROM THE LABORS OF
AUTHORS.'  IT IS SAID THAT REWARD TO THE AUTHOR OR ARTIST SERVES TO
INDUCE RELEASE TO THE PUBLIC OF THE PRODUCTS OF HIS CREATIVE GENIUS. 
BUT THE REWARD DOES NOT SERVE ITS PUBLIC PURPOSE IF IT IS NOT RELATED
TO THE QUALITY OF THE COPYRIGHT.  WHERE A HIGH QUALITY FILM GREATLY
DESIRED IS LICENSED ONLY IF AN INFERIOR ONE IS TAKEN, THE LATTER
BORROWS QUALITY FROM THE FORMER AND STRENGTHENS IT MONOPOLY BY DRAWING
ON THE OTHER.  THE PRACTICE TENDS TO EQUALIZE RATHER THAN DIFFERENTIATE
THE REWARD FOR THE INDIVIDUAL COPYRIGHTS.  EVEN WHERE ALL THE FILMS
INCLUDED IN THE PACKAGE ARE OF EQUAL QUALITY, THE REQUIREMENT THAT ALL
BE TAKEN IF ONE IS DESIRED INCREASES THE MARKET FOR SOME.  EACH STANDS
NOT ON ITS OWN FOOTING BUT IN WHOLE OR IN PART ON THE APPEAL WHICH
ANOTHER FILM MAY HAVE.  AS THE DISTRICT COURT SAID, THE RESULT IS TO
ADD TO THE MONOPOLY OF THE COPYRIGHT IN VIOLATION OF THE PRINCIPLE OF
THE PATENT CASES INVOLVING TYING CLAUSES."  334 U.S., AT 158. 
APPELLANTS ATTEMPT TO DISTINGUISH THE PARAMOUNT DECISION IN ITS
RELATION TO THE PRESENT FACTS: THE BLOCK BOOKED SALE OF COPYRIGHTED
FEATURE FILMS TO EXHIBITORS IN A NEW MEDIUM - TELEVISION.  NOT
CHALLENGING THE DISTRICT COURT'S FINDING THAT THEY DID ENGAGE IN BLOCK
BOOKING, THEY CONTEND THAT THE UNIQUENESS ATTRIBUTABLE TO A COPYRIGHTED
FEATURE FILM, THOUGH RELEVANT IN THE MOVIE-THEATER CONTEXT, IS LOST
WHEN THE FILM IS BEING SOLD FOR TELEVISION USE.  FEATURE FILMS, THEY
POINT OUT, CONSTITUTE LESS THAN 8% OF TELEVISION PROGRAMMING, AND THEY
ASSERT THAT FILMS ARE "REASONABLY INTERCHANGEABLE" WITH OTHER TYPES OF
PROGRAMMING MATERIAL AND WITH OTHER FEATURE FILMS AS WELL.  THUS THEY
ARGUE THAT THEIR BEHAVIOR IS NOT TO BE JUDGED BY THE PRINCIPLE OF THE
PATENT CASES, AS APPLIED TO COPYRIGHTED MATERIALS IN PARAMOUNT
PICTURES, BUT BY THE GENERAL PRINCIPLES WHICH GOVERN THE VALIDITY OF
TYING ARRANGEMENTS OF NONPATENTED PRODUCTS, E.G., NORTHERN PACIFIC R.
CO. V. UNITED STATES, 356 U.S. 1, 6, 11.  THEY SAY THAT THE
GOVERNMENT'S PROOF DID NOT ESTABLISH THEIR "SUFFICIENT ECONOMIC POWER"
IN THE SENSE CONTEMPLATED FOR NONPATENTED PRODUCTS.  (FN5) 

APPELLANTS CANNOT ESCAPE THE APPLICABILITY OF PARAMOUNT PICTURES.  A
COPYRIGHTED FEATURE FILM DOES NOT LOSE ITS LEGAL OR ECONOMIC UNIQUENESS
BECAUSE IT IS SHOWN ON A TELEVISION RATHER THAN A MOVIE SCREEN. 

THE DISTRICT JUDGE FOUND THAT EACH COPYRIGHTED FILM BLOCK BOOKED BY
APPELLANTS FOR TELEVISION USE "WAS IN ITSELF A UNIQUE PRODUCT"; THAT
FEATURE FILMS "VARIED IN THEME, IN ARTISTIC PERFORMANCE, IN STARS, IN
AUDIENCE APPEAL, ETC.," AND WERE NOT FUNGIBLE; AND THAT SINCE EACH
DEFENDANT BY REASON OF ITS COPYRIGHT HAD A "MONOPOLISTIC" POSITION AS
TO EACH TYING PRODUCT, "SUFFICIENT ECONOMIC POWER" TO IMPOSE AN
APPRECIABLE RESTRAINT ON FREE COMPETITION IN THE TIED PRODUCT WAS
PRESENT, AS DEMANDED BY THE NORTHERN PACIFIC DECISION.  189 F. SUPP.,
AT 381.  (FN6)  WE AGREE.  THESE FINDINGS OF THE DISTRICT JUDGE,
SUPPORTED BY THE RECORD, CONFIRM THE PRESUMPTION OF UNIQUENESS
RESULTING FROM THE EXISTENCE OF THE COPYRIGHT ITSELF. 

MOREOVER, THERE CAN BE NO QUESTION IN THIS CASE OF THE ADVERSE
EFFECTS ON FREE COMPETITION RESULTING FROM APPELLANTS' ILLEGAL BLOCK
BOOKING CONTRACTS.  TELEVISION STATIONS FORCED BY APPELLANTS TO TAKE
UNWANTED FILMS WERE DENIED ACCESS TO FILMS MARKETED BY OTHER
DISTRIBUTORS WHO, IN TURN, WERE FORECLOSED FROM SELLING TO THE
STATIONS.  NOR CAN THERE BY ANY QUESTION AS TO THE SUBSTANTIALITY OF
THE COMMERCE INVOLVED.  THE 25 CONTRACTS FOUND TO HAVE BEEN ILLEGALLY
BLOCK BOOKED INVOLVED PAYMENTS TO APPELLANTS RANGING FROM $60,800 IN
THE CASE OF SCREEN GEMS TO OVER $2,500,000 IN THE CASE OF ASSOCIATED
ARTISTS.  A SUBSTANTIAL PORTION OF THE LICENSING FEES REPRESENTED THE
COST OF THE INFERIOR FILMS WHICH THE STATIONS WERE REQUIRED TO ACCEPT. 
THESE ANTICOMPETITIVE CONSEQUENCES ARE AN APT ILLUSTRATION OF THE
REASONS UNDERLYING OUR RECOGNITION THAT THE MERE PRESENCE OF COMPETING
SUBSTITUTES FOR THE TYING PRODUCT, HERE TAKING THE FORM OF OTHER
PROGRAMMING MATERIAL AS WELL AS OTHER FEATURE FILMS, IS INSUFFICIENT TO
DESTROY THE LEGAL, AND INDEED THE ECONOMIC, DISTINCTIVENESS OF THE
COPYRIGHTED PRODUCT.  STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES,
337 U.S. 293, 307; TIMES-PICAYUNE PUB. CO. V. UNITED STATES, 345 U.S.
594, 611 AND N. 30.  BY THE SAME TOKEN, THE DISTINCTIVENESS OF THE
COPYRIGHTED TIED PRODUCT IS NOT INCONSISTENT WITH THE FACT OF
COMPETITION, IN THE FORM OF OTHER PROGRAMMING MATERIAL AND OTHER FILMS,
WHICH IS SUPPRESSED BY THE TYING ARRANGEMENTS. 

IT IS THEREFORE CLEAR THAT THE TYING ARRANGEMENTS HERE BOTH BY THEIR
"INHERENT NATURE" AND BY THEIR "EFFECT" INJURIOUSLY RESTRAINED TRADE. 
UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 179. 
ACCOMMODATION BETWEEN THE STATUTORILY DISPENSED MONOPOLY IN THE
COMBINATION OF CONTENTS IN THE PATENTED OR COPYRIGHTED PRODUCT AND THE
STATUTORY PRINCIPLES OF FREE COMPETITION DEMANDS THAT EXTENSION OF THE
PATENT OR COPYRIGHT MONOPOLY BY THE USE OF TYING AGREEMENTS BE STRICTLY
CONFINED.  THERE MAY BE RARE CIRCUMSTANCES IN WHICH THE DOCTRINE WE
HAVE ENUNCIATED UNDER SEC. 1 OF THE SHERMAN ACT PROHIBITING TYING
ARRANGEMENTS INVOLVING PATENTED OR COPYRIGHTED TYING PRODUCTS IS
INAPPLICABLE.   HOWEVER, WE FIND IT DIFFICULT TO CONCEIVE OF SUCH A
CASE, AND THE PRESENT CASE IS CLEARLY NOT ONE. 

THE PRINCIPLES UNDERLYING OUR PARAMOUNT PICTURES DECISION HAVE
GENERAL APPLICATION TO TYING ARRANGEMENTS INVOLVING COPYRIGHTED
PRODUCTS, AND GOVERN HERE.  APPLICABILITY OF PARAMOUNT PICTURES BRINGS
WITH IT A MEETING OF THE TEST OF NORTHERN PACIFIC, SINCE PARAMOUNT
PICTURES IS BUT A PARTICULARIZED APPLICATION OF THE GENERAL DOCTRINE AS
REAFFIRMED IN NORTHERN PACIFIC.  ENFORCED BLOCK BOOKING OF FILMS IS A
VICE IN BOTH THE MOTION PICTURE AND TELEVISION INDUSTRIES, AND THAT THE
SIN IS MORE SERIOUS (IN DOLLAR AMOUNT) IN ONE THAN THE OTHER DOES NOT
EXPIATE THE GUILT FOR EITHER.  APPELLANTS' BLOCK BOOKED CONTRACTS ARE
COVERED BY THE FLAT HOLDING IN PARAMOUNT PICTURES, 334 U.S., AT 159,
THAT "A REFUSAL TO LICENSE ONE OR MORE COPYRIGHTS UNLESS ANOTHER
COPYRIGHT IS ACCEPTED" IS "ILLEGAL." 

APPELLANTS (OTHER THAN C&C) MAKE THE ADDITIONAL ARGUMENT THAT EACH OF
THEM WAS FOUND TO HAVE ENTERED INTO SUCH A SMALL NUMBER OF ILLEGAL
CONTRACTS AS TO MAKE IT IMPROPER TO ENTER INJUNCTIVE RELIEF. 
APPELLANTS URGE THAT THEIR OVER-ALL SALES POLICIES WERE TO ALLOW
SELECTIVE PURCHASING OF FILMS, AND THAT IN LIGHT OF THIS, THE FACT THAT
A FEW CONTRACTS WERE FOUND TO BE ILLEGAL DOES NOT JUSTIFY THE ENTERING
OF INJUNCTIVE RELIEF.  WE DISAGREE.  ILLEGALITY HAVING BEEN PROPERLY
FOUND, APPELLANTS CANNOT NOW COMPLAIN THAT ITS INCIDENCE WAS TOO
SCATTERED TO WARRANT INJUNCTIVE RELIEF.  THE TRIAL JUDGE, EXERCISING
SOUND JUDGMENT, HAS CONCLUDED THAT INJUNCTIVE RELIEF IS NECESSARY TO
PREVENT FURTHER VIOLATIONS.  WE THINK THAT FINDING WHOLLY WARRANTED. 
MOREOVER, THE RECORD SHOWS THAT LOEW'S ONLY INSTITUTED ITS POLICY OF
MAKING INDIVIDUAL FILMS AVAILABLE SHORTLY AFTER SUIT WAS BROUGHT, AND
THERE IS EVIDENCE THAT UNITED ARTISTS WAS CONSCIENTIOUS IN PUBLICIZING
ITS WILLINGNESS TO DEAL IN INDIVIDUAL FILMS ONLY AFTER THE COMMENCEMENT
OF SUIT WAS IMMINENT.  THERE IS NO REASON TO DISTURB THE JUDGE'S LEGAL
CONCLUSIONS AND DECREE MERELY BECAUSE HE DID NOT FIND MORE ILLEGAL
AGREEMENTS WHEN, AS HERE, THE ILLEGAL BEHAVIOR OF EACH DEFENDANT HAD
SUBSTANTIAL ANTICOMPETITIVE EFFECTS. 

 II. 

APPELLANT C&C IN ITS SEPARATE APPEAL RAISES CERTAIN ARGUMENTS WHICH
AMOUNT TO AN ATTEMPTED BUSINESS JUSTIFICATION FOR ITS ADMITTED BLOCK
BOOKING POLICY.  C&C PURCHASED THE TELECASTING RIGHTS IN SOME 742 FILMS
KNOWN AS THE "RKO LIBRARY."  IT DID SO WITH A BANK LOAN FOR THE TOTAL
PURCHASE PRICE, AND TO GET THE BANK LOAN IT NEEDED A GUARANTOR, WHICH
IT FOUND IN THE INTERNATIONAL LATEX CORPORATION.  LATEX, HOWEVER,
DEMANDED AND SECURED AN AGREEMENT FROM C&C THAT FILMS WOULD NOT BE SOLD
WITHOUT OBTAINING IN RETURN A COMMITMENT FROM TELEVISION STATIONS TO
SHOW A MINIMUM NUMBER OF LATEX SPOT ADVERTISEMENTS IN CONJUNCTION WITH
THE FILMS.  THUS, SINCE STATIONS COULD NOT FEASIBLY TELECAST THE
MINIMUM NUMBER OF SPOTS WITHOUT BUYING A LARGE NUMBER OF FILMS TO
SPREAD THEM OVER, C&C BY REQUIRING THE MINIMUM NUMBER OF ADVERTISEMENTS
EFFECTIVELY FORCED BLOCK BOOKING ON THOSE STATIONS WHICH PURCHASED ITS
FILMS.  C&C CONTENDS THE BLOCK BOOKING WAS MERELY THE BY-PRODUCT OF TWO
LEGITIMATE BUSINESS MOTIVES - LATEX' DESIRE FOR A SATURATION
ADVERTISING CAMPAIGN, AND C&C'S WISH TO BUY A LARGE FILM LIBRARY. 
HOWEVER, THE OBVIOUS ANSWER TO THIS CONTENTION IS THAT THE THRUST OF
THE ANTITRUST LAWS CANNOT BE AVOIDED MERELY BY CLAIMING THAT THE
OTHERWISE ILLEGAL CONDUCT IS COMPELLED BY CONTRACTUAL OBLIGATIONS. 
WERE IT OTHERWISE, THE ANTITRUST LAWS COULD BE NULLIFIED.  CONTRACTUAL
OBLIGATIONS CANNOT THUS SUPERSEDE STATUTORY IMPERATIVES.  HENCE, TYING
ARRANGEMENTS, ONCE FOUND TO EXIST IN A CONTEXT OF SUFFICIENT ECONOMIC
POWER, ARE ILLEGAL "WITHOUT ELABORATE INQUIRY AS TO  ... THE BUSINESS
EXCUSE FOR THEIR USE," NORTHERN PACIFIC R. CO. V. UNITED STATES, 356
U.S. 1, 5. 

IN NOS. 43 AND 44, THEREFORE, WE AGREE WITH THE MERITS OF THE
DISTRICT COURT'S DECISION.  IT CORRECTLY FOUND THAT THE CONDITIONING OF
THE SALE OF ONE OR MORE COPYRIGHTED FEATURE FILMS TO TELEVISION
STATIONS UPON THE PURCHASE OF ONE OR MORE OTHER FILMS IS ILLEGAL.  THE
ANTITRUST LAWS DO NOT PERMIT A COMPOUNDING OF THE STATUTORILY CONFERRED
MONOPOLY. 

III. 

THE TRIAL JUDGE'S ABILITY TO FORMULATE A DECREE TAILORED TO DEAL WITH
THE VIOLATIONS EXISTENT IN EACH CASE IS NORMALLY SUPERIOR TO THAT OF
ANY REVIEWING COURT, DUE TO HIS FAMILIARITY WITH TESTIMONY AND
EXHIBITS.  NOTWITHSTANDING OUR BELIEF THAT PRIMARY RESPONSIBILITY FOR
THE DECREE MUST REST WITH THE TRIAL JUDGE IF WORKABLE RESULTS ARE TO
OBTAIN, IT IS OUR DUTY TO EXAMINE THE DECREE IN LIGHT OF THE RECORD TO
SEE THAT THE RELIEF IT AFFORDS IS ADEQUATE TO PREVENT THE RECURRENCE OF
THE ILLEGALITY WHICH BROUGHT ON THE GIVEN LITIGATION.  UNITED STATES V.
UNITED STATES GYPSUM CO., 340 U.S. 76, 89. 

THE UNITED STATES CONTENDS THAT THE RELIEF AFFORDED BY THE FINAL
JUDGMENTS (FN7) IS INADEQUATE AND THAT TO BE ADEQUATE IT MUST ALSO:
(1) REQUIRE THE DEFENDANTS TO PRICE THE FILMS INDIVIDUALLY AND OFFER
THEM ON A PICTURE-BY-PICTURE BASIS; (2) PROHIBIT NONCOST-JUSTIFIED
DIFFERENTIALS IN PRICE BETWEEN A FILM WHEN SOLD INDIVIDUALLY AND WHEN
SOLD AS PART OF A PACKAGE; (3) PROSCRIBE "TEMPORARY" REFUSALS BY A
DISTRIBUTOR TO DEAL ON LESS THAN A BLOCK BASIS WHILE HE IS NEGOTIATING
WITH A COMPETING TELEVISION STATION FOR A PACKAGE SALE. 

SOME OF THE PRACTICES WHICH THE GOVERNMENT SEEKS TO HAVE ENJOINED
WITH ITS REQUESTED MODIFICATIONS ARE ACTS WHICH MAY BE ENTIRELY PROPER
WHEN VIEWED ALONE.  TO ENSURE, HOWEVER, THAT RELIEF IS EFFECTUAL,
OTHERWISE PERMISSIBLE PRACTICES CONNECTED WITH THE ACTS FOUND TO BE
ILLEGAL MUST SOMETIMES BE ENJOINED.  ETHYL GASOLINE CORP. V. UNITED
STATES, 309 U.S. 436, 461; UNITED STATES V. BAUSCH & LOMB OPTICAL CO.,
321 U.S. 707, 724; HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386,
409; INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 401; UNITED
STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 88-89.  WHEN THE
GOVERNMENT HAS WON THE LAWSUIT, IT IS ENTITLED TO WIN THE CAUSE AS
WELL, INTERNATIONAL SALT CO. V. UNITED STATES, SUPRA, 332 U.S., AT
401. 

                           A. INITIAL OFFER OF INDIVIDUAL FILMS,

    INDIVIDUALLY PRICED. 

UNDER THE FINAL JUDGMENTS ENTERED BY THE COURT, A DISTRIBUTOR WOULD
BE FREE TO OFFER FILMS IN A PACKAGE INITIALLY, WITHOUT STATING
INDIVIDUAL PRICES.  IF, HOWEVER, HE DELAYED AT ALL IN PRODUCING
INDIVIDUAL PRICES UPON REQUEST, HE WOULD SUBJECT HIMSELF TO A POSSIBLE
CONTEMPT SANCTION.  THE GOVERNMENT'S FIRST REQUEST WOULD PREVENT THIS
"FIRST BITE" POSSIBILITY, FORCING THE OFFER OF THE FILMS ON AN
INDIVIDUAL BASIS AT THE OUTSET (BUT, AS WE VIEW IT, NOT PRECLUDING A
SIMULTANEOUS PACKAGE OFFER, UNITED STATES V. PARAMOUNT PICTURES, INC.,
SUPRA, 334 U.S., AT 159). 

THIS IS A NECESSARY ADDITION TO THE DECREES, IN VIEW OF THE EVIDENCE
APPEARING IN THE RECORD.  TELEVISION STATIONS WHICH ASKED FOR THE
INDIVIDUAL PRICES OF SOME OF THE BETTER PICTURES "COULDN'T GET ANY SORT
OF A FIRM KIND OF AN ANSWER," ACCORDING TO ONE STATION OFFICIAL.  HE
STATED THAT THEY RECEIVED A "CERTAIN FORM OF EQUIVOCATION, LIKE THE
PRICE FOR THE BETTER PICTURES THAT WE WANTED WAS SO HIGH THAT IT
WOULDN'T BE WORTH OUR WHILE TO DISCUSS THE MATTER,  ...  THE
IMPLICATION BEING THAT IT WOULDN'T HAPPEN."  A SCREEN GEMS INTRACOMPANY
MEMORANDUM ABOUT A BATON ROUGE STATION'S PRICE REQUEST STATED THAT "I
TOLD HIM THAT I WOULD BE HAPPY TO TALK TO HIM ABOUT IT, FIGURING WE
COULD START THE OLD ROUND ROBIN THAT WORKED SO WELL IN HOUSTON & SAN
ANTONIO."  WITHOUT THE PROPOSED AMENDMENT TO THE DECREE, DISTRIBUTORS
MIGHT SURREPTITIOUSLY VIOLATE IT BY ALLOWING OR DIRECTING THEIR
SALESMEN TO BE RELUCTANT TO PRODUCE THE INDIVIDUAL PRICE LIST ON
REQUEST.  THIS SUBTLER FORM OF SALES PRESSURE, THOUGH NOT ACCOMPANIED
BY ANY OBSERVABLE DELAY OVER TIME, MIGHT WELL RESULT IN SOME TELEVISION
STATIONS BUYING THE BLOCK RATHER THAN TRYING TO TALK THE SELLER INTO
NEGOTIATING ON AN INDIVIDUAL BASIS.  REQUIRING THE PRODUCTION OF THE
INDIVIDUAL LIST ON FIRST APPROACH WILL OBVIATE THIS DANGER. 

                            B. PROHIBITION OF NONCOST-JUSTIFIED

                                    PRICE DIFFERENTIALS. 

THE FINAL JUDGMENTS AS ENTERED ONLY PROHIBIT A PRICE DIFFERENTIAL
BETWEEN A FILM OFFERED INDIVIDUALLY AND AS PART OF A PACKAGE WHICH "HAS
THE EFFECT OF CONDITIONING THE SALE OR LICENSE OF SUCH FILM UPON THE
SALE OR LICENSE OF ONE OR MORE OTHER FILMS."  THE GOVERNMENT CONTENDS
THAT THIS PROVISION APPEARING BY ITSELF IS TOO VAGUE AND WILL LEAD TO
UNNECESSARY LITIGATION.  DIFFERENTIALS UNJUSTIFIED BY COST SAVINGS MAY
ALREADY BE PROHIBITED UNDER THE DECREE AS IT NOW APPEARS. 
NEVERTHELESS, THE ADDITION OF A SPECIFIC PROVISION TO PREVENT SUCH
DIFFERENTIALS WILL PREVENT UNCERTAINTY IN THE OPERATION OF THE DECREE. 
TO ENSURE THAT LITIGATION OVER THE SCOPE AND APPLICATION OF THE DECREES
IS NOT LEFT UNTIL A CONTEMPT PROCEEDING IS BROUGHT, THE SECOND
REQUESTED MODIFICATION SHOULD BE ADDED.  THE GOVERNMENT, HOWEVER, SEEKS
TO MAKE DISTRIBUTION COSTS THE ONLY SAVING WHICH CAN LEGITIMATELY BE
THE BASIS OF A DISCOUNT.  WE WOULD NOT SO LIMIT THE RELEVANT COST
JUSTIFICATIONS.  TO PREVENT DEFINITIONAL ARGUMENTS, AND TO ENSURE THAT
ALL PROPER BASES OF QUANTITY DISCOUNT MAY BE USED, THE MODIFICATION
SHOULD BE WORDED IN TERMS OF ALLOWING ALL LEGITIMATE COST
JUSTIFICATIONS.                            C. PROHIBITION OF
"TEMPORARY" REFUSALS TO DEAL.    THE GOVERNMENT'S THIRD REQUEST IS,
LIKE THE FIRST, DESIGNED TO PREVENT DISTRIBUTORS FROM SUBJECTING
PROSPECTIVE PURCHASERS TO A "RUN-AROUND" ON THE PURCHASE OF INDIVIDUAL
FILMS.  NO DOUBT TEMPORARY REFUSAL TO SELL IN BROKEN LOTS TO ONE
CUSTOMER WHILE NEGOTIATING TO SELL THE ENTIRE BLOCK TO ANOTHER IS A
PROPER BUSINESS PRACTICE, VIEWED IN VACUO, BUT WE THINK THAT IF
PERMITTED HERE IT MAY TEND TO FORCE SOME STATIONS INTO BUYING PRE-SET
PACKAGES TO FORESTALL A COMPETITOR'S GETTING THE ENTIRE GROUP.  IN
RECOGNITION OF THIS THE GOVERNMENT SEEKS A BLANKET PROHIBITION AGAINST
ALL TEMPORARY REFUSALS TO DEAL.  WE AGREE IN THE MAIN, EXCEPT THAT THE
MODIFICATION PROPOSED BY THE GOVERNMENT FAILS TO GIVE FULL RECOGNITION
TO THAT PART OF THIS COURT'S HOLDING IN PARAMOUNT PICTURES WHICH SAID: 

"WE DO NOT SUGGEST THAT FILMS MAY NOT BE SOLD IN BLOCKS OR GROUPS,
WHEN THERE IS NO REQUIREMENT, EXPRESS OR IMPLIED, FOR THE PURCHASE OF
MORE THAN ONE FILM.  ALL WE HOLD TO BE ILLEGAL IS A REFUSAL TO LICENSE
ONE OR MORE COPYRIGHTS UNLESS ANOTHER COPYRIGHT IS ACCEPTED."  334
U.S., AT 159. 

WE THEREFORE GRANT THE GOVERNMENT'S REQUEST, BUT MODIFY IT ONLY TO
THE LIMITED DEGREE NECESSARY TO PERMIT A SELLER BRIEFLY TO DEFER
LICENSING OR SELLING TO A CUSTOMER PENDING THE EXPEDITIOUS CONCLUSION
OF BONA FIDE NEGOTIATIONS ALREADY BEING CONDUCTED WITH A COMPETING
STATION ON A PROPOSAL WHEREIN THE DISTRIBUTOR HAS SIMULTANEOUSLY
OFFERED TO LICENSE OR SELL FILMS EITHER INDIVIDUALLY OR IN A PACKAGE. 

THE MODIFICATIONS WE HAVE SPECIFIED WILL BRING ABOUT A GREATER
PRECISION IN THE OPERATION OF THE DECREES.  WE HAVE CONCLUDED THAT THEY
WILL PROPERLY PROTECT THE INTEREST OF THE GOVERNMENT IN GUARDING
AGAINST VIOLATIONS AND THE INTEREST OF THE DEFENDANTS IN SEEKING IN
GOOD FAITH TO COMPLY. 

THE JUDGMENTS ARE VACATED AND THE CAUSES ARE REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  VACATED
AND REMANDED. 

FN1  "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 ...  ."  26
STAT. 209 (1890), AS AMENDED, 15 U.S.C. SEC. 1. 

FN2  NATIONAL TELEFILM HAS, HOWEVER, FILED A BRIEF IN OPPOSITION TO
THE GOVERNMENT'S REQUESTS FOR MODIFICATIONS IN THE DECREE, DISCUSSED
BELOW. 

FN3  SEE INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392;
UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131; TIMES-PICAYUNE
PUB. CO. V. UNITED STATES, 345 U.S. 594; NORTHERN PACIFIC R. CO. V.
UNITED STATES, 356 U.S. 1. 

FN4  SINCE THE REQUISITE ECONOMIC POWER MAY BE FOUND ON THE BASIS OF
EITHER UNIQUENESS OR CONSUMER APPEAL, AND SINCE MARKET DOMINANCE IN THE
PRESENT CONTEXT DOES NOT NECESSITATE A DEMONSTRATION OF MARKET POWER IN
THE SENSE OF SEC. 2 OF THE SHERMAN ACT, IT SHOULD SELDOM BE NECESSARY
IN A TIE-IN SALE CASE TO EMBARK UPON A FULL-SCALE FACTUAL INQUIRY INTO
THE SCOPE OF THE RELEVANT MARKET FOR THE TYING PRODUCT AND INTO THE
COROLLARY PROBLEM OF THE SELLER'S PERCENTAGE SHARE IN THAT MARKET. 
THIS IS EVEN MORE OBVIOUSLY TRUE WHEN THE TYING PRODUCT IS PATENTED OR
COPYRIGHTED, IN WHICH CASE, AS APPEARS IN GREATER DETAIL BELOW,
SUFFICIENCY OF ECONOMIC POWER IS PRESUMED.  APPELLANTS' RELIANCE ON
UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 351 U.S. 377, IS
THEREFORE MISPLACED. 

FN5  APPELLANTS' FRAMING OF THEIR ARGUMENT IN TERMS OF EACH OF THEM
NOT HAVING DOMINANCE IN THE MARKET FOR TELEVISION EXHIBITION OF FEATURE
FILMS MISCONCEIVES THE APPLICABLE LEGAL STANDARD.  AS NOTED, SUPRA, P.
45, "SUFFICIENT ECONOMIC POWER" AS CONTEMPLATED BY THE NORTHERN PACIFIC
CASE IS A TERM MORE INCLUSIVE IN SCOPE THAN "MARKET DOMINANCE." 

FN6  TO USE THE TRIAL COURT'S APT EXAMPLE, FORCING A TELEVISION
STATION WHICH WANTS "GONE WITH THE WIND" TO TAKE "GETTING GERTIE'S
GARTER" AS WELL IS TAKING UNDUE ADVANTAGE OF THE FACT THAT TO
TELEVISION AS WELL AS MOTION PICTURE VIEWERS THERE IS BUT ONE "GONE
WITH THE WIND." 

FN7  THE OPERATIVE PORTION OF THE INJUNCTIONS APPEARS AT P. 43,
SUPRA. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE STEWART JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

I AGREE WITH AND JOIN IN PARTS I AND II OF THE COURT'S OPINION,
RELATING TO NO. 43 AND NO. 44, RESPECTIVELY.  AS TO PART III, RELATING
TO NO. 42, I DISSENT.  MY DISAGREEMENT GOES NOT SO MUCH TO THE
PARTICULAR ADDITIONAL RELIEF GRANTED, BUT TO THE FACT THAT THE COURT
HAS DEEMED IT APPROPRIATE TO CONCERN ITSELF AT ALL WITH SUCH
COMPARATIVELY TRIVIAL REMEDIAL GLOSSES UPON THE DISTRICT COURT'S
DECREE. 

I THINK IT DISTORTS THE PROPER RELATIONSHIP OF THIS COURT TO THE
LOWER FEDERAL COURTS, WHOSE ASSESSMENT OF A PARTICULAR SITUATION IS
BOUND TO BE MORE INFORMED THAN OURS, FOR US TO EXERCISE REVISORY POWER
OVER THE TERMS OF ANTITRUST RELIEF, EXCEPT IN INSTANCES WHERE THINGS
HAVE MANIFESTLY GONE AWRY.  THIS IS NOT SUCH A CASE, AS THE METICULOUS
HANDLING OF IT BY THE DISTRICT COURT ABUNDANTLY SHOWS.  IN MY VIEW ITS
DECREE SHOULD BE LEFT UNDISTURBED. 
..END :
















SOUTHERN CONSTRUCTION CO., INC. V. PICKARD, DBA PICKARD ENGINEERING CO.
371 U.S. 57 


NO. 46.  ARGUED OCTOBER 16, 1962.  - DECIDED NOVEMBER 5, 1962.  - 293
F.2D 493, REVERSED IN PART AND CASE REMANDED. 


IN THE CIRCUMSTANCES OF THIS CASE, IN WHICH TWO DIFFERENT SUITS UNDER
THE MILLER ACT WERE BROUGHT IN TWO DIFFERENT DISTRICT COURTS BY THE
SAME SUBCONTRACTOR AGAINST THE SAME GENERAL CONTRACTOR AND ITS SURETY,
BASED ON SEPARATE PROJECTS IN THE TWO DISTRICTS, FEDERAL RULE OF CIVIL
PROCEDURE 13(A) DID NOT COMPEL A COUNTERCLAIM, WHICH INVOLVED A PAYMENT
THAT HAD NOT BEEN ALLOCATED AS BETWEEN THE PROJECTS, TO BE MADE IN
WHICHEVER OF THE TWO SUITS THE FIRST RESPONSIVE PLEADING WAS FILED. 
ITS ASSERTION IN THE LATER OF THE TWO SUITS, TO WHICH THE GENERAL
CONTRACTOR, NOT WITHOUT REASON, CONSIDERED IT MORE APPURTENANT, DID NOT
VIOLATE RULE 13(A).  PP. 57-61. 

SOUTHERN CONSTRUCTION CO., INC., ET AL. V. PICKARD, DOING BUSINESS AS
PICKARD ENGINEERING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

SOUTHERN CONSTRUCTION COMPANY, ONE OF THE PETITIONERS HERE, WAS THE
PRIME CONTRACTOR ON CONTRACTS WITH THE UNITED STATES FOR THE
REHABILITATION OF CERTAIN BARRACKS AT FORT CAMPBELL, TENNESSEE, AND
FORT BENNING, GEORGIA.  THERE WERE THREE CONTRACTS COVERING THE GEORGIA
PROJECT AND ONE COVERING THE TENNESSEE PROJECT.  PURSUANT TO THE
PROVISIONS OF THE MILLER ACT, 49 STAT. 793, AS AMENDED, 40 U.S.C. SECS.
270A-270D, SOUTHERN FURNISHED PERFORMANCE AND PAYMENT BONDS, WITH
CONTINENTAL CASUALTY COMPANY, CO-PETITIONER HERE, AS SURETY.  THE
PLUMBING AND HEATING SUBCONTRACTOR ON BOTH PROJECTS WAS THE RESPONDENT
SAMUEL J. PICKARD, DOING BUSINESS AS PICKARD ENGINEERING COMPANY. 
PICKARD'S PRIMARY SUPPLIER ON BOTH PROJECTS WAS THE ATLAS SUPPLY
COMPANY. 

IN DECEMBER 1955, PICKARD'S MEN LEFT THE TENNESSEE JOB BEFORE IT WAS
FULLY COMPLETED, AND SHORTLY THEREAFTER LEFT THE GEORGIA PROJECT. 
ATLAS, PICKARD'S SUPPLIER, CLAIMED THAT $34,520 WAS DUE IT FOR
MATERIALS FURNISHED ON THE TENNESSEE JOB AND $104,000 FOR MATERIALS
FURNISHED ON THE GEORGIA PROJECT.  FOLLOWING A CONFERENCE IN AUGUST
1956 BETWEEN SOUTHERN OFFICIALS AND REPRESENTATIVES OF ATLAS, SOUTHERN
PAID ATLAS $35,000 IN EXCHANGE FOR A COMPLETE RELEASE OF ALL LIABILITY
OF SOUTHERN ON PICKARD'S ACCOUNTS WITH RESPECT TO BOTH THE GEORGIA AND
TENNESSEE PROJECTS.  (FN1) 

IN DECEMBER 1956, ACTING UNDER THE PROVISIONS OF THE MILLER ACT,
PICKARD BROUGHT SUIT, IN THE NAME OF THE UNITED STATES, IN THE UNITED
STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA AGAINST
SOUTHERN AND CONTINENTAL FOR RECOVERY OF AMOUNTS ALLEGEDLY OWING ON
BOTH THE GEORGIA AND TENNESSEE JOBS.  IN JANUARY 1957, SOUTHERN FILED
AN ANSWER AND A COUNTERCLAIM IN WHICH IT ALLEGED THAT SOUTHERN HAD PAID
OUT MORE THAN THE CONTRACT PRICE ON BOTH JOBS AND IN WHICH RECOVERY OF
THE EXCESS WAS SOUGHT.  THE $35,000 PAYMENT TO ATLAS WAS AT THAT TIME
INCLUDED IN THE COUNTERCLAIM. 

THE MILLER ACT, HOWEVER, REQUIRES THAT SUITS INSTITUTED UNDER ITS
PROVISIONS "SHALL BE BROUGHT ...  IN THE UNITED STATES DISTRICT COURT
FOR ANY DISTRICT IN WHICH THE CONTRACT WAS TO BE PERFORMED AND EXECUTED
AND NOT ELSEWHERE  ...  ."  40 U.S.C. SEC. 270BB).  SINCE THIS STATUTE
APPEARED TO PROHIBIT AN ACTION IN THE GEORGIA DISTRICT COURT ON THE
TENNESSEE PROJECT, PICKARD IN APRIL 1957 FILED THE PRESENT ACTION
AGAINST PETITIONERS IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE RELATING TO THE TENNESSEE PROJECT ONLY, AND BY
AMENDMENT ELIMINATED THIS PART OF HIS CLAIM FROM THE GEORGIA ACTION. 

THE GEORGIA ACTION PROCEEDED TO TRIAL IN 1959, AND ACCORDING TO THE
FINDINGS OF THE DISTRICT COURT IN THE PRESENT CASE THE $35,000 PAYMENT
TO ATLAS WAS "DROPPED" PRIOR TO TRIAL FROM THE COUNTERCLAIM ORIGINALLY
ASSERTED IN THAT ACTION.  THE GEORGIA SUIT HAS NOT YET PROCEEDED TO
FINAL JUDGMENT, THE GEORGIA DISTRICT COURT IN SEPTEMBER 1961 HAVING
GRANTED SOUTHERN'S MOTION FOR A NEW TRIAL ON ITS COUNTERCLAIM. 

IN THE TENNESSEE ACTION HERE INVOLVED SOUTHERN INCLUDED THE $35,000
PAYMENT AS PART OF ITS COUNTERCLAIM FOR AFFIRMATIVE RELIEF, AND PICKARD
ANSWERED THAT THE COUNTERCLAIM WAS BARRED BY "RES JUDICATA."  SOUTHERN
LATER WAIVED ANY CLAIM TO AFFIRMATIVE RELIEF IN THIS ACTION AND SOUGHT
ONLY A CREDIT OF $34,520 AGAINST PICKARD'S CONTRACT CLAIM ON THE
TENNESSEE PROJECT.  THIS FIGURE WAS THE PRECISE AMOUNT THAT HAD BEEN
CLAIMED BY ATLAS TO BE DUE IT FOR MATERIALS SUPPLIED ON THIS JOB. 

THE DISTRICT COURT, IN DECIDING THAT PICKARD WAS NOT ENTITLED TO ANY
RECOVERY, ALLOWED THIS $34,520 ITEM AS A CREDIT AGAINST PICKARD'S
CLAIM, BUT ON THIS POINT THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
REVERSED.  293 F.2D 493.  IT HELD THAT SINCE THERE HAD BEEN NO
ALLOCATION OF THE $35,000 PAYMENT AS BETWEEN THE GEORGIA AND TENNESSEE
PROJECTS THE ITEM, UNDER RULE 13(A) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, WAS A "POTENTIAL COMPULSORY COUNTERCLAIM" IN EITHER OF THE
TWO SUITS; (FN2) THAT WHEN THE RESPONSIVE PLEADING IN THE GEORGIA SUIT
WAS FILED THE COUNTERCLAIM WAS NOT THE SUBJECT OF ANY OTHER PENDING
ACTION AND WAS THEREFORE "COMPULSORY" IN THAT SUIT; AND, ACCORDINGLY,
THAT SUCH COUNTERCLAIM COULD NOT LATER BE ASSERTED IN THE PRESENT
ACTION.  WE GRANTED CERTIORARI TO CONSIDER THE APPLICABILITY OF RULE
13(A) IN THESE UNUSUAL CIRCUMSTANCES.  368 U.S. 975. 

WE ACCEPT FOR PRESENT PURPOSES THE RULING BELOW THAT THE $35,000
PAYMENT HAD NOT BEEN ALLOCATED AS BETWEEN THE TENNESSEE AND GEORGIA
PROJECTS AND THAT IT THEREFORE COULD HAVE BEEN ASSERTED IN EITHER
ACTION.  NEVERTHELESS, WE DO NOT BELIEVE THAT RULE 13(A) OPERATES TO
PROHIBIT ITS USE IN THE LATER TENNESSEE ACTION.  THE REQUIREMENT THAT
COUNTERCLAIMS ARISING OUT OF THE SAME TRANSACTION OR OCCURRENCE AS THE
OPPOSING PARTY'S CLAIM "SHALL" BE STATED IN THE PLEADINGS WAS DESIGNED
TO PREVENT MULTIPLICITY OF ACTIONS AND TO ACHIEVE RESOLUTION IN A
SINGLE LAWSUIT OF ALL DISPUTES ARISING OUT OF COMMON MATTERS.  THE RULE
WAS PARTICULARLY DIRECTED AGAINST ONE WHO FAILED TO ASSERT A
COUNTERCLAIM IN ONE ACTION AND THEN INSTITUTED A SECOND ACTION IN WHICH
THAT COUNTERCLAIM BECAME THE BASIS OF THE COMPLAINT.  SEE, E.G., UNITED
STATES V. EASTPORT S.S. CORP., 255 F.2D 795, 801-802. 

IT IS READILY APPARENT THAT THIS POLICY HAS NO APPLICATION HERE.  IN
THIS INSTANCE, THE PLAINTIFF-RESPONDENT, WHO ORIGINALLY SOUGHT TO
COMBINE ALL HIS CLAIMS IN A SINGLE SUIT, CORRECTLY CONCLUDED THAT HE
WAS REQUIRED BY STATUTE TO SPLIT THOSE CLAIMS AND TO BRING TWO SEPARATE
ACTIONS IN TWO DIFFERENT DISTRICTS.  THE FRAGMENTATION OF THESE CLAIMS,
THEREFORE, WAS COMPELLED BY FEDERAL LAW, AND THE PRIMARY DEFENDANT IN
BOTH ACTIONS WAS THUS FOR THE FIRST TIME CONFRONTED WITH THE CHOICE OF
WHICH OF THE TWO PENDING SUITS SHOULD BE RESORTED TO FOR THE ASSERTION
OF A COUNTERCLAIM COMMON TO BOTH.  UNDER THESE CIRCUMSTANCES, WE HOLD
THAT RULE 13(A) DID NOT COMPEL THIS COUNTERCLAIM TO BE MADE IN
WHICHEVER OF THE TWO SUITS THE FIRST RESPONSIVE PLEADING WAS FILED. 
(FN3)  ITS ASSERTION IN THE LATER SUIT, TO WHICH SOUTHERN, NOT WITHOUT
REASON, CONSIDERED IT MORE APPURTENANT (PP. 58-59, SUPRA), BY NO MEANS
INVOLVED THE CIRCUITY OF ACTION THAT RULE 13(A) WAS AIMED AT
PREVENTING.  ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS INSOFAR
AS IT RELATED TO THIS COUNTERCLAIM IS REVERSED, AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  UNDER THE MILLER ACT, 40 U.S.C. SEC. 270B, SOUTHERN AS A PRIME
CONTRACTOR WAS SECONDARILY LIABLE TO SUPPLIERS OF THE SUBCONTRACTOR. 

FN2  RULE 13(A) PROVIDES: 

"(A) COMPULSORY COUNTERCLAIMS.  A PLEADING SHALL STATE AS A
COUNTERCLAIM ANY CLAIM WHICH AT THE TIME OF SERVING THE PLEADING THE
PLEADER HAS AGAINST ANY OPPOSING PARTY, IF IT ARISES OUT OF THE
TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT MATTER OF THE OPPOSING
PARTY'S CLAIM AND DOES NOT REQUIRE FOR ITS ADJUDICATION THE PRESENCE OF
THIRD PARTIES OF WHOM THE COURT CANNOT ACQUIRE JURISDICTION, EXCEPT
THAT SUCH A CLAIM NEED NOT BE SO STATED IF AT THE TIME THE ACTION WAS
COMMENCED THE CLAIM WAS THE SUBJECT OF ANOTHER PENDING ACTION." 

FN3  WE ARE INFORMED THAT AFTER CERTIORARI WAS GRANTED IN THE PRESENT
CASE, SOUTHERN FILED AN AMENDED COUNTERCLAIM IN THE GEORGIA ACTION
WHICH INCLUDED THE $35,000 ITEM INVOLVED HERE.  FURTHER PROCEEDINGS IN
THE GEORGIA ACTION, HOWEVER, ARE AWAITING OUR DECISION IN THIS CASE. 
OF COURSE ONCE THIS COUNTERCLAIM HAS BEEN ADJUDICATED IN ONE OF THE
ACTIONS IT CANNOT BE REASSERTED IN THE OTHER. 
..END :











WETZEL V. OHIO 371 U.S. 62 


NO. 200.  DECIDED NOVEMBER 5, 1962.  - REPORTED BELOW:  173 OHIO ST. 16,
179 N.E.2D 773. 


IN THIS CASE, IN WHICH APPELLANT HAD BEEN CONVICTED IN AN OHIO COURT
OF A STATE CRIME, HAD BEEN SENTENCED TO IMPRISONMENT AND TO PAY THE
COSTS OF PROSECUTION, AND HAD DIED WHILE HIS APPEAL WAS PENDING, A
MOTION TO SUBSTITUTE THE ADMINISTRATRIX OF HIS ESTATE IS GRANTED AND
THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

WETZEL V. OHIO 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THIS IS AN APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF OHIO
AFFIRMING A JUDGMENT OF CONVICTION OF A CRIMINAL OFFENSE ENTERED IN THE
COURT OF COMMON PLEAS, WYANDOT COUNTY, OHIO. 

THE MOTION TO SUBSTITUTE MARGIE WETZEL, ADMINISTRATRIX OF THE ESTATE
OF EDWARD J. WETZEL, WHO DIED APRIL 26, 1962, AS APPELLANT IN PLACE OF
EDWARD J. WETZEL IS GRANTED.  THE MOTION OF APPELLEE TO DISMISS THE
APPEAL FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION IS GRANTED. 

MR. JUSTICE DOUGLAS, CONCURRING. 

APPELLANT WAS CONVICTED OF POSSESSING OBSCENE MATTER WITH INTENT TO
SELL IT UNDER OHIO STATUTES SEC. 2905.34.  ON MAY 25, 1960, HE WAS
"SENTENCED TO AN INDETERMINATE PERIOD  ...  OF NOT LESS THAN ONE YEAR
NOR MORE THAN SEVEN YEARS AND TO PAY COSTS OF PROSECUTION."  THE
SENTENCE WAS SUSPENDED PENDING APPEAL IN THE OHIO COURTS.  ON JANUARY
17, 1962, THE SUPREME COURT OF OHIO REVERSED THE COURT OF APPEALS,
WHICH HAD REVERSED APPELLANT'S CONVICTION, AND ON FEBRUARY 2, 1962,
ORDERED THE TRIAL COURT'S JUDGMENT EXECUTED.  ON THE SAME DAY A WARRANT
WAS ISSUED BY THE TRIAL COURT AUTHORIZING THE SHERIFF TO SELL ENOUGH OF
APPELLANT'S PROPERTY TO SATISFY COSTS OF $469.20.  THIS WAS IN
ACCORDANCE WITH REVISED CODE SEC. 2949.15.  ON FEBRUARY 27, 1962, THE
SUPREME COURT OF OHIO SUSPENDED SENTENCE "UNTIL FURTHER ORDER" OF THAT
COURT. 

APPELLANT DIED PENDING APPEAL TO THIS COURT.  HIS WIFE, AS
ADMINISTRATRIX, HAS MOVED TO BE SUBSTITUTED AS A PARTY. 

WHEN A CONVICTED AND FINED FEDERAL CRIMINAL DEFENDANT HAS DIED
PENDING REVIEW OF HIS CASE HERE IT HAS BEEN THE PRACTICE OF THIS COURT
TO DISMISS HIS CASE AND LEAVE THE DISPOSITION OF HIS FINE TO THE LOWER
FEDERAL COURTS.  SEE AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S.
781, 815; UNITED STATES V. JOHNSON, 310 U.S. 503, 520.  BUT THIS
PRACTICE IS PREMISED ON THE GROUND "THAT IN THE FEDERAL DOMAIN
PROSECUTIONS ABATE  ... ON THE DEATH OF A  ...  DEFENDANT."  MELROSE
DISTILLERS V. UNITED STATES, 359 U.S. 271, 272.  SEE DANIEL V. UNITED
STATES, 268 F.2D 849.  BUT SUCH IS NOT THE CASE IN OHIO.  THERE THE
APPEAL WILL BE DISMISSED AS MOOT (MAKLEY V. STATE, 128 OHIO ST. 571,
192 N.E. 738) BUT "THE DISMISSAL OF AN APPEAL, BECAUSE OF THE DEATH OF
THE DEFENDANT DURING THE PENDENCY THEREOF, LEAVES THE JUDGMENT AS IT
WAS BEFORE THE APPEAL PROCEEDING WAS INSTITUTED."  STATE V. SHOLITON,
128 N.E.2D 666, 667. 

IN THE SHOLITON CASE THE COURT EXPRESSLY REFUSED TO PASS ON WHETHER
DECEDENT'S ESTATE WOULD BE LIABLE FOR COSTS, BECAUSE THE ISSUE WAS NOT
PRESENTED.  IT IS APPARENTLY THE RULE IN OHIO, HOWEVER, THAT COSTS CAN
BE COLLECTED FROM A DECEASED CONVICTED CRIMINAL'S ESTATE.  CLARK COUNTY
V. KEIFER, 16 ONPNS 41.  SEE OHIO HUR.  2D, COSTS, SEC. 89.  UNDER THE
PRESENT SENTENCE COSTS SEEM TO BE A PENALTY WHICH IS PART OF THE
SENTENCE.  SEE HAYES V. PONTIUS, 2 OHIO OP. 453. 

THUS, UNDER EXISTING OHIO LAW IT APPEARS THAT WETZEL'S ESTATE WILL
HAVE TO PAY A $469.20 PENALTY TO THE STATE OF OHIO UNLESS THIS COURT
REVERSES HIS CONVICTION.  HIS ADMINISTRATRIX, AND PROBABLE HEIR, IS
RIGHTLY CONCERNED ABOUT THIS AND IS THE PROPER PARTY TO SUBSTITUTE. 

IT IS OFTEN STATED THAT "WHERE NO CONTROVERSY REMAINS EXCEPT AS TO
COSTS, THIS COURT WILL NOT PASS UPON THE MERITS."  HEITMULLER V.
STOKES, 256 U.S. 359; SEE PAPERBAG MACHINE CASES, 105 U.S. 766; ELASTIC
FABRICS CO. V. SMITH, 100 U.S. 110.  THE GENESIS OF THESE CASES WAS
CANTER V. AMERICAN INS. CO., 3 PET. 307, WHEREIN THE COURT STATED: 

"AS TO THE COSTS AND EXPENSES, WE PERCEIVE NO ERROR IN THE ALLOWANCE
OF THEM IN THE CIRCUIT COURT.   THEY ARE NOT MATTERS POSITIVELY LIMITED
BY LAW, BUT ARE ALLOWED IN THE EXERCISE OF A SOUND DISCRETION OF THE
COURT.  AND, BESIDES, IT MAY BE ADDED, THAT NO APPEAL LIES FROM A MERE
DECREE RESPECTING COSTS AND EXPENSES."  ID., AT 319. 

AS STATED BY CHIEF JUSTICE TAFT, WRITING FOR THE COURT IN NEWTON V.
CONSOLIDATED GAS CO., 265 U.S. 78, 82-83:

"THERE IS NO DOUBT THAT, AS A GENERAL RULE, AN APPEAL DOES NOT LIE
FROM A DECREE SOLELY FOR COSTS ...  .  THIS RULE IS EASILY DEDUCIBLE
FROM THE DISCRETION VESTED IN THE TRIAL COURT  ...  .  BUT THE RULE IS
NOT ABSOLUTE AND SHOULD NOT BE ENFORCED WHEN THE TRIAL COURT ASSUMES
THE POWER TO ASSESS ...  COSTS  ...   NOT LEGALLY ASSESSABLE AS SUCH." 

THOSE WERE ALL CIVIL CASES AND THIS IS A CRIMINAL ONE.  YET THE RULE
OF THE CIVIL CASES SHOULD OBTAIN HERE. 

IN THIS CASE THE TRIAL COURT HAD NO DISCRETION CONCERNING THE MATTER
OF COSTS.  UNDER OHIO LAW COSTS ARE AUTOMATICALLY ASSESSED AGAINST A
CONVICTED FELON.  SEE OHIO REVISED CODE, SECS.  2949.14, 2949.15.  THE
COSTS WERE NOT "LEGALLY ASSESSABLE" IF THE CONVICTION WAS INVALID. 

IN POLLARD V. UNITED STATES, 352 U.S. 354, THE QUESTION WAS RAISED AS
TO WHETHER OR NOT THE CASE WAS MOOT BECAUSE THE PETITIONER HAD BEEN
RELEASED FROM PRISON AFTER HIS PETITION FOR CERTIORARI HAD BEEN
GRANTED.  ID., P. 358.  THE ISSUE PRESENTED WAS NOT THAT OF GUILT, BUT
INSTEAD ONE THAT RELATED ONLY TO THE PROPRIETY OR LEGALITY OF THE
SENTENCE IMPOSED.  WE SAID "THE POSSIBILITY OF CONSEQUENCES COLLATERAL
TO THE IMPOSITION OF SENTENCE IS SUFFICIENTLY SUBSTANTIAL TO JUSTIFY
OUR DEALING WITH THE MERITS."  IBID.  THOUGH WE DIVIDED ON THE MERITS,
WE WERE UNANIMOUS ON THAT POINT. 

IN THE PRESENT CASE THERE IS A STRONG PROBABILITY OF COLLATERAL
CONSEQUENCES OR "PENALTIES OR DISABILITIES."  ST. PIERRE V. UNITED
STATES, 319 U.S. 41, 43.  IF THE CONVICTION STANDS, THOSE COLLATERAL
CONSEQUENCES OR PENALTIES WILL BE THE LIKELY REDUCTION OF APPELLANT'S
ESTATE THROUGH THE COLLECTION OF COSTS FROM IT. 

TO SUPPORT HER SUBSTITUTION MRS. WETZEL ASSERTS THAT THE DECEASED AND
HIS FAMILY HAVE A SUBSTANTIAL INTEREST IN CLEARING HIS NAME, THAT SHE
SHOULD BE ALLOWED TO PROTECT THE ESTATE FROM THE PENALTY THAT MAY BE
COLLECTED FROM IT, AND THAT THE IMPORTANCE OF THE ISSUES PRESENTED BY
THIS APPEAL JUSTIFIES REVIEW.  IT IS UNNECESSARY TO DECIDE IN THIS CASE
WHETHER THE DECEDENT'S OR HIS FAMILY'S INTEREST IN HIS GOOD NAME
SATISFIES THE CASE-OR-CONTROVERSY REQUIREMENT.  CF. ST. PIERRE V.
UNITED STATES, 319 U.S. 41, 43.  FOR I AM CONVINCED THAT UNDER EXISTING
PRECEDENT DECEDENT'S WIFE AND ADMINISTRATRIX HAS A SUFFICIENT INTEREST
IN PROTECTING HIS ESTATE FROM UNLAWFUL PENALTIES TO BE SUBSTITUTED AS A
PARTY AND MAINTAIN THIS APPEAL. 

FOR THESE REASONS I BELIEVE THE MOTION TO SUBSTITUTE IS PROPERLY
GRANTED.  BUT ON THE FACTS OF THIS RECORD I HAVE CONCLUDED THAT A
SUBSTANTIAL FEDERAL QUESTION IS NOT PRESENTED. 

MR. JUSTICE BLACK, WHILE JOINING THIS OPINION INSOFAR AS IT DEALS
WITH THE MOTION TO SUBSTITUTE, BELIEVES THAT A SUBSTANTIAL FEDERAL
QUESTION IS PRESENTED AND THAT PROBABLE JURISDICTION SHOULD BE NOTED. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTS, BELIEVING THAT THE APPEAL ABATED UPON THE DEATH
OF THE APPELLANT, EDWARD J. WETZEL.  MENKEN V. ATLANTA, 131 U.S. 405
(1889).  THIS COURT HAS HELD NUMEROUS TIMES THAT THE EXISTENCE OF A
JUDGMENT TAXING COSTS IN SUCH CASES CANNOT ALONE PREVENT DISMISSAL
HERE.  HEITMULLER V. STOKES, 256 U.S. 359, 362 (1921); WINGERT V. FIRST
NATIONAL BANK, 223 U.S. 670 (1912); PAPER-BAG MACHINE CO. V. NIXON, 105
U.S. 766, 772 (1881); ELASTIC FABRICS CO. V. SMITH, 100 U.S. 110
(1879).  ALTHOUGH SUCH JUDGMENTS MAY CONFER APPELLATE JURISDICTION TO
INQUIRE INTO THE LOWER COURT'S POWER TO TAX COSTS, NEWTON V.
CONSOLIDATED GAS CO., 265 U.S. 78, 82-83 (1924); CITIZENS' BANK V.
CANNON, 164 U.S. 319, 323-324 (1896); CF. INTERTYPE CORP. V. CLARK
CONGRESS CORP., 249 F.2D 626, 628 (1957), THE EXISTENCE OF SUCH A
JUDGMENT HAS BEEN HELD NOT TO CONFER JURISDICTION TO INQUIRE INTO THE
MERITS OF THE ORIGINAL CONTROVERSY, SMITH V. INDIANA, 191 U.S. 138, 149
(1903); DAVIS V. PRESTON, 280 U.S. 406, 408 (1930).  ACCORDINGLY, THE
MOTION TO SUBSTITUTE THE ADMINISTRATRIX AS A PARTY SHOULD BE DENIED,
THE APPEAL DISMISSED AND THE CASE REMANDED TO THE SUPREME COURT OF OHIO
FOR SUCH PROCEEDINGS AS MAY BE APPROPRIATE UNDER STATE LAW. 
..END :




CITIZENS UTILITIES CO. OF CALIFORNIA V. SUPERIOR COURT OF CALIFORNIA FOR
SACRAMENTO COUNTY 371 U.S. 67 


NO. 330.  DECIDED NOVEMBER 5, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


CITIZENS UTILITIES CO. OF CALIFORNIA V. SUPERIOR COURT OF CALIFORNIA FOR
SACRAMENTO COUNTY ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, THIRD
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














BROOKSHIRE V. MISSOURI 371 U.S. 67 


NO. 351.  DECIDED NOVEMBER 5, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  353 S.W.2D 681. 


BROOKSHIRE V. MISSOURI. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BROOKSHIRE V. CONTESTIBLE 371 U.S. 68 


NO. 352.  DECIDED NOVEMBER 5, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  355 S.W.2D 36. 


BROOKSHIRE V. CONTESTIBLE, ADMINISTRATRIX. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















GRISANTI V. CITY OF CLEVELAND 371 U.S. 68 


NO. 353.  DECIDED NOVEMBER 5, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  173 OHIO ST. 386, 182
N.E.2D 568. 


GRISANTI V. CITY OF CLEVELAND ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CHICAGO & EASTERN ILLINOIS RAILROAD V. UNITED STATES 371 U.S. 69 


NO. 360.  DECIDED NOVEMBER 5, 1962. 


CHICAGO & EASTERN ILLINOIS RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS WOULD NOTE PROBABLE
JURISDICTION. 
..END :















GLUCKSTERN V. NEW YORK 371 U.S. 69 


NO. 564, MISC.  DECIDED NOVEMBER 5, 1962. 


GLUCKSTERN V. NEW YORK. 

APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK,
FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















UNITED STATES V. BLISS & LAUGHLIN 371 U.S. 70 


NO. 367.  DECIDED NOVEMBER 5, 1962.  - REPORTED BELOW:  202 F. SUPP.
334. 


JUDGMENT VACATED AND CASE REMANDED FOR RECONSIDERATION IN LIGHT OF
BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294. 

UNITED STATES V. BLISS & LAUGHLIN, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR RECONSIDERATION
IN LIGHT OF BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294. 
..END :












WALTON V. ARKANSAS 371 U.S. 28 


NO. 18, MISC.  DECIDED OCTOBER 22, 1962.  - REPORTED BELOW:  233 ARK.
999, 350 S.W.2D 302. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED FOR
CONSIDERATION IN LIGHT OF HAMILTON V. ALABAMA, 368 U.S. 52. 

WALTON V. ARKANSAS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED. 

IN THIS CAPITAL CASE THE SUPREME COURT OF ARKANSAS SUSTAINED
PETITIONER'S CONVICTION AGAINST THE CLAIM, AMONG OTHERS, THAT IN
VIOLATION OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES HIS INVOLUNTARY CONFESSION OF THE CRIME WAS INTRODUCED IN
EVIDENCE AT THE TRIAL.  WALTON V. STATE, 233 ARK. 999, 350 S.W.2D 302. 
PETITIONER CONTENDS THAT INDEPENDENTLY OF THIS CLAIM HIS CONVICTION WAS
UNCONSTITUTIONAL BECAUSE HE WAS NOT REPRESENTED BY COUNSEL AT THE TIME
OF HIS ARRAIGNMENT IN THE COURSE OF WHICH HE ACKNOWLEDGED THE
VOLUNTARINESS OF HIS CONFESSION, SUCH ACKNOWLEDGMENT BEING LATER USED
IN EVIDENCE AGAINST HIM AT THE TRIAL. 

WHEN THE ARKANSAS SUPREME COURT DECIDED THIS CASE IT DID NOT HAVE THE
BENEFIT OF THIS COURT'S DECISION IN HAMILTON V. ALABAMA, 368 U.S. 52,
WHICH WAS RENDERED SUBSEQUENT TO THE STATE COURT'S DECISION AND ON THE
SAME DAY THAT IT DENIED REHEARING UPON A PETITION FILED PRIOR TO THE
ANNOUNCEMENT OF THE HAMILTON CASE.  FURTHER, WE ARE UNABLE TO CONCLUDE
FROM THE RECORD FILED IN THIS COURT EITHER THAT PETITIONER HAD COUNSEL
AT THE TIME OF THE ARRAIGNMENT PROCEEDINGS OR, IF NOT, THAT HE WAS
ADVISED OF HIS RIGHT TO HAVE COUNSEL AT SUCH PROCEEDINGS AND THAT HE
UNDERSTANDINGLY AND INTELLIGENTLY WAIVED THAT RIGHT. 

IN THESE CIRCUMSTANCES WE CONCLUDE THAT THE JUDGMENT OF THE SUPREME
COURT OF ARKANSAS SHOULD BE VACATED AND THE CASE REMANDED TO THAT COURT
FOR FURTHER CONSIDERATION IN LIGHT OF HAMILTON V. ALABAMA, SUPRA, OR
FOR SUCH OTHER APPROPRIATE PROCEEDINGS AS MAY BE AVAILABLE UNDER STATE
LAW FOR RESOLUTION OF THIS CONSTITUTIONAL CLAIM.  IT IS SO ORDERED. 
..END :








IOANNOU V. NEW YORK 371 U.S. 30 


NO. 191.  DECIDED OCTOBER 22, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  11 N.Y.2D 740, 181
N.E.2D 456. 


IOANNOU V. NEW YORK ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I THINK THIS APPEAL PRESENTS SUBSTANTIAL FEDERAL QUESTIONS AND THAT
JURISDICTION SHOULD BE NOTED. 

UNDER SEC. 269 OF THE NEW YORK SURROGATE'S COURT ACT (NOW SEC. 269-A)
A CZECHOSLOVAKIAN BENEFICIARY OF A NEW YORK ESTATE HAS BEEN DENIED THE
POWER TO MAKE A GIFT OF HER INTEREST IN THE ESTATE TO HER NIECE
RESIDING IN ENGLAND.  THIS RESULT FLOWS FROM A DETERMINATION BY THE
SURROGATE'S COURT OF BRONX COUNTY THAT UNDER ITS PRESENT GOVERNMENT
CONDITIONS ARE SUCH IN CZECHOSLOVAKIA THAT IT IS UNLIKELY THE
BENEFICIARY WOULD BE ABLE TO ENJOY HER INTEREST.  THEREFORE ITS USE WAS
DENIED HER ENTIRELY, THOUGH NONE OF IT, SO FAR AS THIS RECORD SHOWS,
WILL EVER REACH CZECHOSLOVAKIA. 

CZECHOSLOVAKIA, THOUGH COMMUNIST, IS A SOVEREIGN STATE RECOGNIZED BY
THE UNITED STATES.  THE DESCENT AND DISTRIBUTION OF PROPERTY IN ONE
STATE TO THE CITIZENS OF ANOTHER STATE IS CLEARLY A PROPER SUBJECT OF
INTERNATIONAL RELATIONS.  SEE GEOFROY V. RIGGS, 133 U.S. 258.  THE
CONSTITUTION BY ART. I, SEC. 10, IMPOSES SEVERE LIMITATIONS ON THE
SEVERAL STATES' POWER TO AFFECT THE FOREIGN RELATIONS OF THE UNITED
STATES.  "COMPLETE POWER OVER INTERNATIONAL AFFAIRS IS IN THE NATIONAL
GOVERNMENT AND IS NOT AND CANNOT BE SUBJECT TO ANY CURTAILMENT OR
INTERFERENCE ON THE PART OF THE SEVERAL STATES."  UNITED STATES V.
BELMONT, 301 U.S. 324, 331.  THUS, IF NEW YORK HAS, IN EFFECT,
REGULATED AN AREA OF OUR INTERNATIONAL RELATIONS THAT SHOULD BE
REGULATED ONLY BY THE FEDERAL GOVERNMENT, OR IF THE NEW YORK STATUTE
CONFLICTS WITH EXISTING FEDERAL POLICY, THEN THAT STATUTE CANNOT BE
GIVEN EFFECT.  FOR "IF STATE ACTION COULD DEFEAT OR ALTER OUR FOREIGN
POLICY, SERIOUS CONSEQUENCES MIGHT ENSUE.  THE NATION AS A WHOLE WOULD
BE HELD TO ANSWER IF A STATE CREATED DIFFICULTIES WITH A FOREIGN
POWER."  UNITED STATES V. PINK, 315 U.S. 203, 232.  CF. BROWN V.
MARYLAND, 12 WHEAT.  419. 

MANY AREAS OF OUR LAW REFLECT THE VIEW THAT FOREIGN POLICY CAN BE
SHAPED SOLELY BY THE FEDERAL GOVERNMENT.  OUR COURTS WILL NOT INQUIRE
INTO THE VALIDITY OF AN ACT OF A RECOGNIZED FOREIGN STATE (OETJEN V.
CENTRAL LEATHER CO., 246 U.S. 297), EVEN THOUGH THE ACT IS ATTACKED ON
THE GROUND THAT IT HAD BEEN ENACTED BY AN UNFRIENDLY NATION AND IS
VIOLATIVE OF UNITED STATES PUBLIC POLICY, BERNSTEIN V. VAN HEYGHEN
FRERES S.A., 163 F.2D 246; PONS V. REPUBLIC OF CUBA, 294 F.2D 925. 
LIKEWISE, A FOREIGN COUNTRY IS IMMUNE FROM SUIT FOR INJURIES CAUSED IN
ITS COMMERCIAL TRANSACTIONS (BERIZZI BROS. CO. V. THE PESARO, 271 U.S.
562), EVEN THOUGH THIS RESULT IS NOT REQUIRED BY INTERNATIONAL LAW
(RESTATEMENT, FOREIGN RELATIONS LAW OF THE UNITED STATES, PROPOSED
OFFICIAL DRAFT, 1962, SEC. 72).  BUT, IF THE EXECUTIVE DEPARTMENT OF
THE FEDERAL GOVERNMENT INDICATES ITS VIEWS ON WHETHER IMMUNITY SHOULD
BE ALLOWED, THOSE VIEWS WILL CONTROL.  REPUBLIC OF MEXICO V. HOFFMAN,
324 U.S. 30. 

ADMITTEDLY, THE SEVERAL STATES HAVE TRADITIONALLY REGULATED THE
DESCENT AND DISTRIBUTION OF ESTATES WITHIN THEIR BOUNDARIES.  THIS DOES
NOT MEAN, HOWEVER, THAT THEIR REGULATIONS MUST BE SUSTAINED IF THEY
IMPAIR THE EFFECTIVE EXERCISE OF THE NATION'S FOREIGN POLICY.  SEE
MILLER, THE CORPORATION AS A PRIVATE GOVERNMENT IN THE WORLD COMMUNITY,
46 VA. L. REV. 1539, 1542-1549.  WHERE THOSE LAWS CONFLICT WITH A
TREATY, THEY MUST GIVE WAY TO THE SUPERIOR FEDERAL POLICY.  SEE
KOLOVRAT V. OREGON, 366 U.S. 187.  YET, EVEN IN ABSENCE OF A TREATY, A
STATE'S POLICY MAY DISTURB FOREIGN RELATIONS.  AS WE STATED IN HINES V.
DAVIDOWITZ, 312 U.S. 52, 64:  "EXPERIENCE HAS SHOWN THAT INTERNATIONAL
CONTROVERSIES OF THE GRAVEST MOMENT, SOMETIMES EVEN LEADING TO WAR, MAY
ARISE FROM REAL OR IMAGINED WRONGS TO ANOTHER'S SUBJECTS INFLICTED, OR
PERMITTED, BY GOVERNMENT."  CERTAINLY A STATE COULD NOT DENY ADMISSION
TO A TRAVELER FROM CZECHOSLOVAKIA NOR BAR ITS CITIZENS FROM GOING
THERE.  PASSENGER CASES, 7 HOW.  283; CRANDALL V. NEVADA, 6 WALL.  35;
CF. KENT V. DULLES, 357 U.S. 116.  THE PRESENT RESTRAINTS ARE NOT AS
GROSS AN INTRUSION IN THE FEDERAL DOMAIN AS THOSE OTHERS WOULD BE.  YET
THEY AFFECT INTERNATIONAL RELATIONS IN A PERSISTENT AND SUBTLE WAY. 
THE PRACTICE OF STATE COURTS IN WITHHOLDING REMITTANCES TO LEGATEES
RESIDING IN COMMUNIST COUNTRIES OR IN PREVENTING THEM FROM ASSIGNING
THEM IS NOTORIOUS.  CHAITKIN, THE RIGHTS OF RESIDENTS OF RUSSIA AND ITS
SATELLITES TO SHARE IN ESTATES OF AMERICAN DECEDENTS, 25 SO. CALIF. L.
REV. 297. 

THE ISSUE IS OF IMPORTANCE TO OUR FOREIGN RELATIONS AND I THINK THIS
COURT SHOULD DECIDE WHETHER, UNDER EXISTING FEDERAL POLICY AND
PRACTICE, THE NEW YORK STATUTE SHOULD BE GIVEN EFFECT.  THE ISSUE WAS
RAISED IN NO. 123, 1953 TERM, WHERE THE APPEAL WAS DISMISSED.  IN RE
BRAIER, 305 N.Y. 148, 111 N.E.2D 424, APP. DISM.  SUB NOM. KALMANE V.
GREEN, 346 U.S. 802.  JUSTICES BLACK, DOUGLAS, AND BURTON VOTING TO
NOTE JURISDICTION.  THE QUESTION SEEMS SUBSTANTIAL AND DOES NOT SEEM TO
BE FORECLOSED BY CLARK V. ALLEN, 331 U.S. 503.  WE SHOULD NOTE
JURISDICTION AND ASK THE SOLICITOR GENERAL TO FILE A BRIEF. 

A SUBSTANTIAL QUESTION OF DUE PROCESS IS ALSO TENDERED.  IN NEW YORK
THE SURROGATE APPARENTLY HOLDS NO HEARING BUT SIMPLY DETERMINES THAT
ANY PAYMENTS TO OR BY PEOPLE BEHIND THE "IRON CURTAIN" ARE BARRED BY
THE STATUTE.  SEE IN RE GEIGER, 7 N.Y.2D 109, 164 N.E.2D 99.  BUT, AS
SAID BY JUDGE FROESSEL (AND JUDGE FULD) DISSENTING IN THAT CASE: 

"HAD THE SURROGATE HELD A HEARING, IT MIGHT WELL HAVE BEEN DEVELOPED,
AS ALLEGED IN THE PETITION, THAT THE BENEFICIARIES ARE 'ALL OF ADVANCED
AGE, WHO ARE NOW LIVING IN HUNGARY UNDER DIFFICULT CONDITIONS AND ARE
IN GREAT NEED OF ASSISTANCE', AND THAT MONETARY ASSISTANCE 'CAN BE
TRANSFERRED TO THEM BY SENDING FOOD AND CLOTHING PACKAGES TO EACH OF
THEM  ...  FREE OF DUTY AND OF ANY TAXATION'.  IT MIGHT WELL HAVE BEEN
FURTHER DEVELOPED THAT THESE NATIONALS HAVE NO WAY OF LEAVING HUNGARY;
THAT THEY ARE THE VERY VICTIMS OF THE 'EVENTS IN HUNGARY' TO WHICH THE
SURROGATE REFERRED; THAT THEY WILL PROBABLY DIE THERE AND NEVER RECEIVE
THE BENEFIT OF THEIR LEGACIES IF THE MONEYS ARE WITHHELD; AND THAT
THERE ARE AGENCIES WHICH CAN ASSURE DELIVERY OF FOOD AND CLOTHING
PACKAGES IN REASONABLE AMOUNTS TO NAMED INDIVIDUALS. 

"IT SEEMS TO ME THAT THE SURROGATE ABUSED HIS DISCRETION IN FAILING
TO GRANT A HEARING SO THAT THESE FACTS MIGHT HAVE BEEN DEVELOPED AND
THE MATTER DECIDED, NOT ON THE BASIS OF AN APPLICATION TO PAY LEGACIES
TO IRON-CURTAIN COUNTRY NATIONALS, BUT ON THE APPLICATION AS MADE,
NAMELY, TO ALLOW REASONABLE SUMS OF MONEY FOR CONVERSION INTO FOOD AND
CLOTHING PACKAGES UPON A PROPER SHOWING THAT THEY WOULD REACH THE
BENEFICIARIES."  7 N.Y.2D, AT 113-114, 164 N.E.2D, AT 101-102. 

THIS MEANS THAT NO ONE RESIDING IN CZECHOSLOVAKIA MAY RECEIVE OR MAKE
ANY DISPOSITION OF PROPERTY UNDER A WILL PROBATED IN NEW YORK, EVEN
THOUGH IT IS DONE WITHOUT THE INTERCESSION OF THE FOREIGN GOVERNMENT OR
IN FACT WITHOUT ITS KNOWLEDGE, AND EVEN THOUGH THERE IS NO DANGER OF
THE FUNDS BEING CONFISCATED OR IN FACT BEING WITHIN CZECHOSLOVAKIA'S
REACH.  IF NEW YORK'S PURPOSE IS TO PRECLUDE UNFRIENDLY FOREIGN
GOVERNMENTS FROM OBTAINING FUNDS THAT WILL ASSIST THEIR EFFORTS HOSTILE
TO THIS NATION'S INTERESTS, AS IN RE GETREAM'S ESTATE, 200 MISC. 543,
107 N.Y.S.2D 225, AND IN RE RENARD'S ESTATE, 179 MISC. 885, 39 N.Y.S.2D
968, SUGGEST, THE COMPLETE PROHIBITION OF ASSIGNMENTS MADE IN THOSE
COUNTRIES MAY HAVE SOME BASIS IN REASON.  BUT, IF THIS IS THE PURPOSE
BEHIND THE STATUTE, IT SEEMINGLY IS AN ATTEMPT TO REGULATE FOREIGN
AFFAIRS.  IF THE STATUTE IS DESIGNED TO EFFECTUATE THE TESTATOR'S
INTENT, AS APPELLEES SEEM TO ARGUE, IT WOULD SEEM TO HAVE NO BASIS IN
REASON. 

VIKTORIA MICULKA, WHO WAS A DISTRIBUTEE OF AN ESTATE OF A NEW YORK
DECEDENT, ASSIGNED AT THE AMERICAN EMBASSY IN PRAGUE HER INTEREST IN
THE ESTATE TO PETITIONER, HER NIECE WHO LIVES IN LONDON.  THERE IS NO
CONNECTION BETWEEN THE FUND IN NEW YORK AND CZECHOSLOVAKIA BECAUSE OF
THE FACT THAT VIKTORIA MICULKA RESIDES IN CZECHOSLOVAKIA.  THERE IS NO
EVIDENCE WHATSOEVER THAT ANY OF THE FUNDS WILL EVER REACH
CZECHOSLOVAKIA.  VIKTORIA MICULKA IS AN OLD WOMAN WHO WILL PROBABLY
NEVER LEAVE HER HOMELAND.  AN IRREBUTTABLE PRESUMPTION THAT THE
TESTATOR WOULD NOT HAVE WANTED HIS BENEFICIARY TO MAKE A VOLUNTARY
ASSIGNMENT OF HIS INTEREST UNDER THESE CIRCUMSTANCES FLIES IN THE FACE
OF REASON AND COMMON SENSE AND IS AS QUESTIONABLE AS THE ONE SOUGHT TO
BE SUSTAINED IN TOT V. UNITED STATES, 319 U.S. 463. 
..END :







KAVANAGH V. BROWN 371 U.S. 35 


NO. 299.  DECIDED OCTOBER 22, 1962.  - 206 F. SUPP. 479, AFFIRMED. 


KAVANAGH ET AL. V. BROWN, TREASURER OF MICHIGAN, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















AKRON V. OHIO EX REL. MCELROY 371 U.S. 35 


NO. 327.  DECIDED OCTOBER 22, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  173 OHIO ST. 189, 181
N.E.2D 26. 


CITY OF AKRON ET AL. V. OHIO EX REL. MCELROY, ATTORNEY GENERAL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















GEER V. BOWERS 371 U.S. 36 


NO. 304.  DECIDED OCTOBER 22, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 173 OHIO ST. 264, 181 N.E.2D 268. 


GEER, EXECUTOR, ET AL. V. BOWERS, TAX COMMISSIONER OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CONSOLIDATED ROCK PRODUCTS CO. V. LOS ANGELES 371 U.S. 36 


NO. 307.  DECIDED OCTOBER 22, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  57 CAL. 2D 515, 370
P.2D 342. 


CONSOLIDATED ROCK PRODUCTS CO. ET AL. V. CITY OF LOS ANGELES. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE HARLAN ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :













ALABAMA V. UNITED STATES 371 U.S. 37 


NO. 324.  DECIDED OCTOBER 22, 1962.  - CERTIORARI GRANTED AND JUDGMENT
AFFIRMED.  - REPORTED BELOW: 304 F.2D 583. 


ALABAMA ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
AFFIRMED.  UNITED STATES V. THOMAS, 362 U.S. 58. 
..END :
















UNITED STATES V. HALEY 371 U.S. 18 


NO. 148.  DECIDED OCTOBER 15, 1962.* 

*TOGETHER WITH NO. 139, MISC., UNITED STATES V. UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, ON MOTION FOR LEAVE
TO FILE PETITION FOR WRIT OF MANDAMUS AND ON PETITION FOR WRIT OF
MANDAMUS. 


1.  THIS COURT'S DECISION PER CURIAM, 358 U.S. 644, REVERSING THE
JUDGMENT BELOW ON THE GOVERNMENT'S EARLIER DIRECT APPEAL IN THIS CASE,
NECESSARILY ESTABLISHED THAT (1) THIS COURT HAD JURISDICTION OVER THAT
APPEAL, (2) THE RELEVANT PROVISIONS OF THE AGRICULTURAL ADJUSTMENT ACT
OF 1938 EMBRACED THE CONDUCT OF APPELLEE COMPLAINED OF, (3) THE ACT WAS
CONSTITUTIONAL AS APPLIED IN THE PREMISES, AND (4) THE GOVERNMENT WAS
ENTITLED TO THE RELIEF SOUGHT, SUBJECT ONLY TO THE DISTRICT COURT'S
RESOLUTION OF APPELLEE'S PROCEDURAL DEFENSE TO THE EFFECT THAT THE
GOVERNMENT HAD FAILED TO COMPLY WITH CONDITIONS REQUISITE TO THE
EFFECTIVE ESTABLISHMENT OF A WHEAT ACREAGE ALLOTMENT FOR APPELLEE.  PP.
19-20. 

2.  IN NO. 139, MISC., THE GOVERNMENT'S MOTION FOR LEAVE TO FILE A
PETITION FOR WRIT OF MANDAMUS AND ITS PETITION FOR WRIT OF MANDAMUS ARE
GRANTED; BUT THE FORMAL WRIT WILL NOT BE ISSUED IF THE DISTRICT COURT
PROMPTLY TAKES STEPS (1) TO SET ASIDE ITS ORDER OF FEBRUARY 26, 1962,
DENYING THE GOVERNMENT'S MOTION FOR JUDGMENT, (2) TO PROCEED TO RESOLVE
HALEY'S PROCEDURAL DEFENSE, (3) IF SUCH DEFENSE IS FOUND TO BE
INSUFFICIENT, TO ENTER FINAL JUDGMENT IN FAVOR OF THE UNITED STATES,
AND (4) IF SUCH DEFENSE IS FOUND SUFFICIENT, TO ENTER JUDGMENT
ACCORDINGLY.  P. 20. 

3.  IN VIEW OF THE DISPOSITION OF NO. 139, MISC., IT IS NOT NECESSARY
TO CONSIDER WHETHER THIS COURT HAS JURISDICTION OVER THE GOVERNMENT'S
APPEAL IN NO. 148, AND THAT APPEAL IS DISMISSED.  P. 20. 

UNITED STATES V. HALEY. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE ORDER OF THE DISTRICT COURT, DATED FEBRUARY 26, 1962, DENYING THE
MOTION OF THE UNITED STATES FOR JUDGMENT IN THIS ACTION EVIDENTLY
RESTED ON A MISCONCEPTION OF THE SCOPE AND EFFECT OF THIS COURT'S PER
CURIAM OPINION ON THE GOVERNMENT'S EARLIER APPEAL, 358 U.S. 644, AND OF
ITS JUDGMENT ISSUED FEBRUARY 24, 1959.  IN LIGHT OF THE ISSUES TENDERED
IN THE PAPERS FILED ON THAT APPEAL THERE CAN BE NO DOUBT THAT THIS
COURT'S JUDGMENT FINALLY ESTABLISHED THE GOVERNMENT'S RIGHT TO THE
RELIEF SOUGHT IN THIS ACTION, SUBJECT ONLY TO THE DISTRICT COURT'S
RESOLUTION OF HALEY'S PROCEDURAL DEFENSE, STILL UNADJUDICATED, TO THE
EFFECT THAT THE GOVERNMENT HAD FAILED TO COMPLY WITH CONDITIONS
REQUISITE TO THE EFFECTIVE ESTABLISHMENT OF A WHEAT ACREAGE ALLOTMENT
FOR HALEY.  SEE JURISDICTIONAL STATEMENT OF THE UNITED STATES AND
APPELLEE'S STATEMENT OPPOSING JURISDICTION AND MOTION TO DISMISS OR
AFFIRM IN NO. 587, OCTOBER TERM, 1958; APPELLEE'S MOTION TO VACATE THE
COURT'S JUDGMENT OF FEBRUARY 24, 1959, DENIED APRIL 27, 1959, 359 U.S.
977; AND APPELLEE'S MOTION FOR REHEARING, DENIED APRIL 27, 1959, 359
U.S. 981. 

MORE PARTICULARLY, THIS COURT THEN NECESSARILY DECIDED (1) THAT IT
HAD JURISDICTION OVER SUCH APPEAL; (2) THAT THE RELEVANT PROVISIONS OF
THE AGRICULTURAL ADJUSTMENT ACT OF 1938, 52 STAT. 31, AS AMENDED, 7
U.S.C. SEC. 1281 ET SEQ., EMBRACED THE CONDUCT OF HALEY COMPLAINED OF
IN THIS ACTION; AND (3) THAT THE ACT WAS CONSTITUTIONAL AS APPLIED IN
THE PREMISES.  UNDER THE REMAND ORDERED BY THIS COURT'S JUDGMENT OF
FEBRUARY 24, 1959, THERE WAS THUS LEFT OPEN TO THE DISTRICT COURT ONLY
THE ADJUDICATION OF HALEY'S ABOVE-MENTIONED PROCEDURAL DEFENSE.  THE
DISTRICT COURT ERRED IN BELIEVING THAT IT WAS NOT FORECLOSED FROM
INQUIRING INTO THIS COURT'S JURISDICTION OVER THE GOVERNMENT'S APPEAL
AND FROM REINSTATING ITS OWN ORIGINAL JUDGMENT IN THE CASE, WHICH
APPEARS TO HAVE BEEN THE EFFECT OF ITS DENIAL OF THE GOVERNMENT'S
MOTION FOR JUDGMENT FOLLOWING REMAND.  SEE IN RE SANFORD FORK & TOOL
CO., 160 U.S. 247, 255. 

THE DISTRICT COURT'S ERROR SHOULD BE RECTIFIED WITHOUT DELAY, AND WE
THINK THAT THE PROPER MEANS FOR ACCOMPLISHING THIS IS BY MANDAMUS.  28
U.S.C. SEC. 1651; SEE IN RE POTTS, 166 U.S. 263; UNITED STATES V.
UNITED STATES DISTRICT COURT, 334 U.S. 258, 263, 264.  ACCORDINGLY, IN
NO. 139, MISC., THE GOVERNMENT'S MOTION FOR LEAVE TO FILE A PETITION
FOR A WRIT OF MANDAMUS, AND ITS PETITION FOR A WRIT OF MANDAMUS, ARE
GRANTED. 

WE SHALL NOT, HOWEVER, ISSUE A FORMAL WRIT AT THIS TIME, SINCE WE ARE
CONFIDENT THAT THE DISTRICT COURT, ONCE ITS MISCONCEPTION OF OUR
JUDGMENT OF FEBRUARY 24, 1959, HAS BEEN CALLED TO ITS ATTENTION, WILL
PROMPTLY TAKE STEPS (1) TO SET ASIDE ITS ORDER OF FEBRUARY 26, 1962,
DENYING THE MOTION OF THE UNITED STATES FOR JUDGMENT; (2) TO PROCEED TO
RESOLVE HALEY'S AFORESAID PROCEDURAL DEFENSE; (3) IF SUCH DEFENSE IS
FOUND TO BE INSUFFICIENT, TO ENTER A FINAL JUDGMENT IN THIS ACTION IN
FAVOR OF THE UNITED STATES; AND (4) IF SUCH DEFENSE IS FOUND
SUFFICIENT, TO ENTER JUDGMENT ACCORDINGLY.  CF. EX PARTE NORTHERN PAC.
R. CO., 280 U.S. 142, 530. 

IN VIEW OF OUR DISPOSITION IN NO. 139, MISC., IT BECOMES UNNECESSARY
TO CONSIDER WHETHER THIS COURT HAS JURISDICTION OVER THE GOVERNMENT'S
APPEAL IN NO. 148, AND THE MOTION TO DISMISS THE APPEAL IN THAT CASE IS
ACCORDINGLY GRANTED AND THE APPEAL IS DISMISSED.  IT IS SO ORDERED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :
















UNITED STATES V. DEPT. OF REVENUE OF ILLINOIS 371 U.S. 21 


NO. 235.  DECIDED OCTOBER 15, 1962.  - 202 F. SUPP. 757, AFFIRMED. 


UNITED STATES ET AL. V. DEPARTMENT OF REVENUE OF ILLINOIS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 
..END :


















SOUTHEASTERN AVIATION, INC., DBA SOUTHEAST AIRLINES V. HURD 371 U.S. 21 



NO. 286.  DECIDED OCTOBER 15, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  209 TENN. 639, 355
S.W.2D 436. 


SOUTHEASTERN AVIATION, INC., DOING BUSINESS AS SOUTHEAST AIRLINES, V.
HURD, ADMINISTRATOR. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE, EASTERN DIVISION. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














PEERLESS STAGES V. UNITED STATES 371 U.S. 22 


NO. 262.  DECIDED OCTOBER 15, 1962.  - AFFIRMED. 


PEERLESS STAGES, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















PULLEY V. PULLEY 371 U.S. 22 


NO. 291.  DECIDED OCTOBER 15, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 256 N.C. 600, 124 S.E.2D 571. 


PULLEY V. PULLEY. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WASSERMANN V. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW
YORK 371 U.S. 23 A 


NO. 312.  DECIDED OCTOBER 15, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  11 N.Y.2D 173, 182
N.E.2D 264. 


WASSERMANN V. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW
YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















MILLER V. LAKE 371 U.S. 23 


NO. 415.  DECIDED OCTOBER 15, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


MILLER V. LAKE, SECRETARY OF STATE OF TEXAS. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















UTAH PHARMACEUTICAL ASSOCIATION V. UNITED STATES 371 U.S. 24 


NO. 277.  DECIDED OCTOBER 15, 1962.  - 201 F. SUPP. 29, AFFIRMED. 


UTAH PHARMACEUTICAL ASSOCIATION V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















DAVIDSON V. LAVALLEE 371 U.S. 24 


NO. 446, MISC.  DECIDED OCTOBER 15, 1962.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  301 F.2D 902. 


DAVIDSON V. LAVALLEE, WARDEN. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















JONES V. UNITED STATES 371 U.S. 25 


NO. 49, MISC.  DECIDED OCTOBER 15, 1962.  - CERTIORARI GRANTED; JUDGMENT
VACATED AND CASE REMANDED FOR CONSIDERATION IN LIGHT OF COPPEDGE V.
UNITED STATES, 369 U.S. 438. 


JONES V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR RECONSIDERATION IN LIGHT OF COPPEDGE V. UNITED
STATES, 369 U.S. 438. 
..END :













VITORATOS V. YACOBUCCI 371 U.S. 25 


NO. 408, MISC.  DECIDED OCTOBER 15, 1962.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


VITORATOS V. YACOBUCCI, CLERK. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BOSTON & MAINE RAILROAD V. UNITED STATES 371 U.S. 26 


NO. 230.  DECIDED OCTOBER 15, 1962.  - 208 F. SUPP. 661, AFFIRMED. 


BOSTON & MAINE RAILROAD ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















GARVIN V. COCHRAN 371 U.S. 27 


NO. 13, MISC., AND NO. 24, MISC.  DECIDED OCTOBER 15, 1962. 


CERTIORARI GRANTED.  IN VIEW OF SUGGESTION OF MOOTNESS BECAUSE OF
PETITIONER'S DEATH, JUDGMENTS VACATED AND CAUSES REMANDED. 

GARVIN V. COCHRAN, CORRECTIONS DIRECTOR. 

ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME COURT OF
FLORIDA. 

PER CURIAM. 

THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITIONS
FOR WRITS OF CERTIORARI ARE GRANTED.  IN VIEW OF THE REPRESENTATIONS OF
THE ATTORNEY GENERAL OF FLORIDA THAT THESE ACTIONS FOR HABEAS CORPUS
HAVE BECOME MOOT BY REASON OF THE DEATH OF THE PETITIONER, THE
JUDGMENTS OF THE SUPREME COURT OF FLORIDA ARE VACATED AND THE CAUSES
ARE REMANDED FOR SUCH PROCEEDINGS AS THAT COURT MAY DEEM APPROPRIATE. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :






HONEYWOOD V. ROCKEFELLER 371 U.S. 1 


NO. 177.  DECIDED OCTOBER 8, 1962.  - AFFIRMED. 


HONEYWOOD ET AL. V. ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF NEW YORK. 

PER CURIAM. 

SINCE WE AGREE WITH THE DISTRICT COURT, FROM OUR EXAMINATION OF THE
RECORD, "THAT NO GOOD CAUSE HAS BEEN SHOWN FOR THE GRANTING OF A
PRELIMINARY INJUNCTION IN ADVANCE OF A TRIAL UPON WHICH THE FACTS
NECESSARY FOR A DETERMINATION OF THE MERITS OF THIS ACTION CAN BE FULLY
DEVELOPED," THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT OF THE
DISTRICT COURT IS AFFIRMED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










BEL OIL CORP. V. COCREHAM 371 U.S. 2 


MO. 123.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  242 LA. 498, 137 SO.
2D 308. 


BEL OIL CORP. V. COCREHAM, COLLECTOR OF REVENUE OF LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














UNITED STATES V. BROWN 371 U.S. 2 


NO. 128.  DECIDED OCTOBER 8, 1962.  - 204 F. SUPP. 407, REVERSED. 


UNITED STATES V. BROWN ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  UNITED STATES V. WISE, 370 U.S. 405. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















RAGAN V. SEATTLE 371 U.S. 3 


NO. 121.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  58 WASH. 2D 779, 364
P.2D 916. 


RAGAN V. CITY OF SEATTLE ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













ERRINGTON V. MISSOURI 371 U.S. 3 


NO. 157.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  355 S.W.2D 952. 


ERRINGTON V. MISSOURI. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















CANNATA V. NEW YORK 371 U.S. 4 


NO. 163.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  11 N.Y.2D 210, 182
N.E.2D 395. 


CANNATA ET AL. V. CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













WAXMAN V. VIRGINIA 371 U.S. 4 


NO. 274.  DECIDED OCTOBER 8, 1962.  - 203 VA. 257, 123 S.E.2D 381,
REVERSED. 


WAXMAN ET AL. V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE JUDGMENTS ARE REVERSED.  SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














FAIRVIEW PUBLIC UTILITY DISTRICT NUMBER ONE V. ANCHORAGE 371 U.S. 5 


NO. 223.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  - ALASKA - , 368 P.2D 540. 


FAIRVIEW PUBLIC UTILITY DISTRICT NUMBER ONE ET AL. V. CITY OF
ANCHORAGE. 

APPEAL FROM THE SUPREME COURT OF ALASKA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












FULGHUM V. LOUISIANA 371 U.S. 5 


NO. 244, MISC.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  242 LA. 767, 138
SO. 2D 569. 


FULGHUM V. LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














ATLANTIC COAST LINE RAILROAD CO. V. UNITED STATES 371 U.S. 6 


NO. 247.  DECIDED OCTOBER 8, 1962.  - 205 F. SUPP. 360, AFFIRMED. 


ATLANTIC COAST LINE RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF GEORGIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















POINDEXTER V. MCGEE 371 U.S. 6 


NO. 297, MISC.  DECIDED OCTOBER 8, 1962. 


POINDEXTER V. MCGEE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















HARRIS V. FLORIDA REAL ESTATE COMMISSION 371 U.S. 7 


NO. 100.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  134 SO. 2D 785. 


HARRIS V. FLORIDA REAL ESTATE COMMISSION ET AL. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













READEY V. ST. LOUIS COUNTY WATER CO. 371 U.S. 8 


NO. 105.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 352 S.W.2D 622. 


READEY ET AL. V. ST. LOUIS COUNTY WATER CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













GEORGIA V. UNITED STATES 371 U.S. 9 


NO. 114.  DECIDED OCTOBER 8, 1962.  - 201 F. SUPP. 813, AFFIRMED. 


GEORGIA ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE WHITE AND MR. JUSTICE GOLDBERG TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :















LASSITER V. UNITED STATES 371 U.S. 10 


NO. 116.  DECIDED OCTOBER 8, 1962.  - 203 F. SUPP. 20, AFFIRMED. 


LASSITER ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE WHITE AND MR. JUSTICE GOLDBERG TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :















WELLENS V. DILLON 371 U.S. 11 


NO. 122.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  302 F.2D 442. 


WELLENS V. DILLON, SECRETARY OF THE TREASURY, ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













UNITED STATES V. WOODSON 371 U.S. 12 


NO. 162.  DECIDED OCTOBER 8, 1962.  - 198 F. SUPP. 582, REVERSED. 


UNITED STATES V. WOODSON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  UNITED STATES V. WISE, 370 U.S. 405. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















HOUSEHOLD FINANCE CORP. V. DIRECTOR OF THE DIVISION OF TAXATION,
DEPARTMENT OF THE TREASURY OF NEW JERSEY 371 U.S. 13 


NO. 237.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  36 N.J. 353, 177 A.2D 738. 


HOUSEHOLD FINANCE CORP. V. DIRECTOR OF THE DIVISION OF TAXATION,
DEPARTMENT OF THE TREASURY OF NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











CARR V. NEW YORK 371 U.S. 14 


NO. 265.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  15 APP. DIV. 2D 709,
223 N.Y.S.2D 229. 


CARR V. NEW YORK. 

APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK,
THIRD JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












BARTON V. DISTRICT COURT OF IOWA IN AND FOR UNION COUNTY 371 U.S. 15 


NO. 31, MISC.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


BARTON V. DISTRICT COURT OF IOWA IN AND FOR UNION COUNTY. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













FLEISCHER V. W.P.I.X., INC. 371 U.S. 16 


NO. 78, MISC.  DECIDED OCTOBER 8, 1962.  - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION. 


FLEISCHER V. W.P.I.X., INC., ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK AND THE APPELLATE
DIVISION OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













PACCIONE V. HERITAGE 371 U.S. 17 


NO. 98, MISC.  DECIDED OCTOBER 8, 1962.  - REPORTED BELOW:  301 F.2D
702. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CAUSE REMANDED FOR FURTHER
PROCEEDINGS ACCORDING PETITIONER AN OPPORTUNITY TO PRESENT ORAL
ARGUMENT ON MERITS. 

PACCIONE V. HERITAGE, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  UPON THE SUGGESTION OF THE
SOLICITOR GENERAL AND AN EXAMINATION OF THE ENTIRE RECORD, THE JUDGMENT
OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT IS VACATED
AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN WHICH
THE PETITIONER IS TO BE ACCORDED THE OPPORTUNITY TO PRESENT ORAL
ARGUMENT ON THE MERITS OF HIS APPEAL, EITHER PERSONALLY OR THROUGH
COUNSEL, TO THE SAME EXTENT AS SUCH OPPORTUNITY IS ACCORDED TO THE
UNITED STATES ATTORNEY. 

MR. JUSTICE GOLDBERG TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :























BROWN SHOE CO. V. UNITED STATES 370 U.S. 294 


NO. 4.  ARGUED DECEMBER 6, 1961 - DECIDED JUNE 25, 1962 - 179 F. SUPP.
721, AFFIRMED. 


THE GOVERNMENT BROUGHT SUIT TO ENJOIN CONSUMMATION OF A MERGER OF TWO
CORPORATIONS, ON THE GROUND THAT ITS EFFECT MIGHT BE SUBSTANTIALLY TO
LESSEN COMPETITION OR TO TEND TO CREATE A MONOPOLY IN THE PRODUCTION,
DISTRIBUTION AND SALE OF SHOES, IN VIOLATION OF SEC. 7 OF THE CLAYTON
ACT, AS AMENDED IN 1950.  THE DISTRICT COURT FOUND THAT THE MERGER
WOULD INCREASE CONCENTRATION IN THE SHOE INDUSTRY, BOTH IN
MANUFACTURING AND RETAILING, ELIMINATE ONE OF THE CORPORATIONS AS A
SUBSTANTIAL COMPETITOR IN THE RETAIL FIELD, AND ESTABLISH A
MANUFACTURER-RETAILER RELATIONSHIP WHICH WOULD DEPRIVE ALL BUT THE TOP
FIRMS IN THE INDUSTRY OF A FAIR OPPORTUNITY TO COMPETE, AND THAT,
THEREFORE, IT PROBABLY WOULD RESULT IN A FURTHER SUBSTANTIAL LESSENING
OF COMPETITION AND AN INCREASED TENDENCY TOWARD MONOPOLY.  IT ENJOINED
APPELLANT FROM HAVING OR ACQUIRING ANY FURTHER INTEREST IN THE
BUSINESS, STOCK, OR ASSETS OF THE OTHER CORPORATION, REQUIRED FULL
DIVESTITURE BY APPELLANT OF THE OTHER CORPORATION'S STOCK AND ASSETS,
AND ORDERED APPELLANT TO PROPOSE IN THE IMMEDIATE FUTURE A PLAN FOR
CARRYING INTO EFFECT THE COURT'S ORDER OF DIVESTITURE.  HELD:  THE
JUDGMENT IS AFFIRMED.  PP. 296-346. 

1.  THE DISTRICT COURT'S JUDGMENT WAS A "FINAL" JUDGMENT WITHIN THE
MEANING OF SEC. 2 OF THE EXPEDITING ACT, AND THIS COURT HAS
JURISDICTION OF THIS DIRECT APPEAL UNDER THAT ACT.  PP. 304-311. 

2.  THE LEGISLATIVE HISTORY OF THE 1950 AMENDMENTS TO SEC. 7 OF THE
CLAYTON ACT INDICATES THAT CONGRESS PROVIDED NO DEFINITE QUANTITATIVE
OR QUALITATIVE TESTS BY WHICH ENFORCEMENT AGENCIES WERE TO GAUGE THE
EFFECTS OF A GIVEN MERGER, BUT RATHER THAT CONGRESS INTENDED THAT A
VARIETY OF ECONOMIC AND OTHER FACTORS BE CONSIDERED IN DETERMINING
WHETHER THE MERGER WAS CONSISTENT WITH MAINTAINING COMPETITION IN THE
INDUSTRY IN WHICH THE MERGING COMPANIES OPERATED.  PP. 311-323. 

3.  THE RECORD SUPPORTS THE DISTRICT COURT'S FINDINGS AND ITS
CONCLUSION THAT THE SHOE INDUSTRY IS BEING SUBJECTED TO A CUMULATIVE
SERIES OF VERTICAL MERGERS WHICH, IF LEFT UNCHECKED, MAY SUBSTANTIALLY
LESSEN COMPETITION, WITHIN THE MEANING OF SEC. 7, AS AMENDED.  PP. 323
334. 

(A)  THE RECORD IN THIS CASE SUPPORTS THE DISTRICT COURT'S FINDING
THAT THE RELEVANT LINES OF COMMERCE ARE MEN'S, WOMEN'S AND CHILDREN'S
SHOES.  PP. 325-326. 

(B)  THE DISTRICT COURT PROPERLY FOUND THAT THE PREDOMINANTLY MEDIUM
PRICED SHOES WHICH APPELLANT MANUFACTURES DO NOT OCCUPY A PRODUCT
MARKET DIFFERENT FROM THE PREDOMINANTLY LOW-PRICED SHOES WHICH THE
OTHER CORPORATION SELLS.  P. 326. 

(C)  IN DEFINING THE PRODUCT MARKET, THE DISTRICT COURT WAS NOT
REQUIRED TO EMPLOY FINER "PRICE/QUALITY" OR "AGE/SEX" DISTINCTIONS THAN
THOSE RECOGNIZED BY ITS CLASSIFICATIONS OF "MEN'S," "WOMEN'S" AND
"CHILDREN'S" SHOES.  PP. 326-328. 

(D)  INSOFAR AS THE VERTICAL ASPECT OF THIS MERGER IS CONCERNED, THE
RELEVANT GEOGRAPHIC MARKET IS THE ENTIRE NATION, AND THE
ANTICOMPETITIVE EFFECTS OF THE MERGER ARE TO BE MEASURED WITHIN THAT
RANGE OF DISTRIBUTION.  P. 328. 

(E)  THE TREND TOWARD VERTICAL INTEGRATION IN THE SHOE INDUSTRY, WHEN
COMBINED WITH APPELLANT'S AVOWED POLICY OF FORCING ITS OWN SHOES UPON
ITS RETAIL SUBSIDIARIES, SEEMS LIKELY TO FORECLOSE COMPETITION FROM A
SUBSTANTIAL SHARE OF THE MARKETS FOR MEN'S, WOMEN'S AND CHILDREN'S
SHOES, WITHOUT PRODUCING ANY COUNTERVAILING COMPETITIVE, ECONOMIC OR
SOCIAL ADVANTAGES.  PP. 328-334. 

4.  THE DISTRICT COURT WAS CORRECT IN CONCLUDING THAT THIS MERGER MAY
TEND TO LESSEN COMPETITION SUBSTANTIALLY IN THE RETAIL SALE OF MEN'S,
WOMEN'S AND CHILDREN'S SHOES IN THE OVERWHELMING MAJORITY OF THE CITIES
AND THEIR ENVIRONS IN WHICH BOTH CORPORATIONS SELL THROUGH OWNED OR
CONTROLLED OUTLETS.  PP. 334-346. 

(A)  THE DISTRICT COURT CORRECTLY DEFINED MEN'S, WOMEN'S AND
CHILDREN'S SHOES AS THE RELEVANT LINES OF COMMERCE IN WHICH TO ANALYZE
THE HORIZONTAL ASPECTS OF THE MERGER.  P. 336. 

(B)  THE DISTRICT COURT PROPERLY DEFINED THE RELEVANT GEOGRAPHIC
MARKETS IN WHICH TO ANALYZE THE HORIZONTAL ASPECTS OF THIS MERGER AS
THOSE CITIES WITH POPULATIONS EXCEEDING 10,000 AND THEIR ENVIRONS IN
WHICH BOTH CORPORATIONS RETAILED SHOES THROUGH THEIR OWN OR CONTROLLED
OUTLETS.  PP. 336-339. 

(C)  THE EVIDENCE IS ADEQUATE TO SUPPORT THE FINDING OF THE DISTRICT
COURT THAT, AS A RESULT OF THE MERGER, COMPETITION IN THE RETAILING OF
MEN'S, WOMEN'S AND CHILDREN'S SHOES MAY BE LESSENED SUBSTANTIALLY IN
THOSE CITIES.  PP. 339-346. 

BROWN SHOE CO., INC., V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

                                          I. 

THIS SUIT WAS INITIATED IN NOVEMBER 1955 WHEN THE GOVERNMENT FILED A
CIVIL ACTION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF MISSOURI ALLEGING THAT A CONTEMPLATED MERGER BETWEEN THE
G.R. KINNEY COMPANY, INC. (KINNEY), AND THE BROWN SHOE COMPANY, INC.
(BROWN), THROUGH AN EXCHANGE OF KINNEY FOR BROWN STOCK, WOULD VIOLATE
SEC. 7 OF THE CLAYTON ACT, 15 U.S.C. SEC. 18.  THE ACT, AS AMENDED,
PROVIDES IN PERTINENT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
...  OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE
OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH
ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY." 

THE COMPLAINT SOUGHT INJUNCTIVE RELIEF UNDER SEC. 15 OF THE CLAYTON
ACT.  15 U.S.C. SEC. 25, TO RESTRAIN CONSUMMATION OF THE MERGER. 

A MOTION BY THE GOVERNMENT FOR A PRELIMINARY INJUNCTION PENDENTE LITE
WAS DENIED, AND THE COMPANIES WERE PERMITTED TO MERGE PROVIDED,
HOWEVER, THAT THEIR BUSINESSES BE OPERATED SEPARATELY AND THAT THEIR
ASSETS BE KEPT SEPARATELY IDENTIFIABLE.  THE MERGER WAS THEN EFFECTED
ON MAY 1, 1956. 

IN THE DISTRICT COURT, THE GOVERNMENT CONTENDED THAT THE EFFECT OF
THE MERGER OF BROWN - THE THIRD LARGEST SELLER OF SHOES BY DOLLAR
VOLUME IN THE UNITED STATES, A LEADING MANUFACTURER OF MEN'S, WOMEN'S,
AND CHILDREN'S SHOES, AND A RETAILER WITH OVER 1,230 OWNED, OPERATED OR
CONTROLLED RETAIL OUTLETS (FN1) - AND KINNEY - THE EIGHTH LARGEST
COMPANY, BY DOLLAR VOLUME, AMONG THOSE PRIMARILY ENGAGED IN SELLING
SHOES, ITSELF A LARGE MANUFACTURER OF SHOES, A RETAILER WITH OVER 350
RETAIL OUTLETS '"MAY BE SUBSTANTIALLY TO LESSEN COMPETITION OR TO TEND
TO CREATE A MONOPOLY" BY ELIMINATING ACTUAL OR POTENTIAL COMPETITION IN
THE PRODUCTION OF SHOES FOR THE NATIONAL WHOLESALE SHOE MARKET AND IN
THE SALE OF SHOES AT RETAIL IN THE NATION, BY FORECLOSING COMPETITION
FROM "A MARKET REPRESENTED BY KINNEY'S RETAIL OUTLETS WHOSE ANNUAL
SALES EXCEED $42,000,000" AND BY ENHANCING BROWN'S COMPETITIVE
ADVANTAGE OVER OTHER PRODUCERS, DISTRIBUTORS AND SELLERS OF SHOES.  THE
GOVERNMENT  ARGUED THAT THE "LINE OF COMMERCE" AFFECTED BY THIS MERGER
IS "FOOTWEAR," OR ALTERNATIVELY, THAT THE "LINES" ARE "MEN'S,"
"WOMEN'S," AND "CHILDREN'S" SHOES, SEPARATELY CONSIDERED, AND THAT THE
"SECTION OF THE COUNTRY," WITHIN WHICH THE ANTICOMPETITIVE EFFECT OF
THE MERGER IS TO BE JUDGED, IS THE NATION AS A WHOLE, OR ALTERNATIVELY,
EACH SEPARATE CITY OR CITY AND ITS IMMEDIATE SURROUNDING AREA IN WHICH
THE PARTIES SELL SHOES AT RETAIL. 

IN THE DISTRICT COURT, BROWN CONTENDED THAT THE MERGER WOULD BE SHOWN
NOT TO ENDANGER COMPETITION IF THE "LINES OF COMMERCE" AND THE
"SECTIONS OF THE COUNTRY" WERE PROPERLY DETERMINED.  BROWN URGED THAT
NOT ONLY WERE THE AGE AND SEX OF THE INTENDED CUSTOMERS TO BE
CONSIDERED IN DETERMINING THE RELEVANT LINE OF COMMERCE, BUT THAT
DIFFERENCES IN GRADE OF MATERIAL, QUALITY OF WORKMANSHIP, PRICE, AND
CUSTOMER USE OF SHOES RESULTED IN ESTABLISHING DIFFERENT LINES OF
COMMERCE.  WHILE AGREEING WITH THE GOVERNMENT THAT, WITH REGARD TO
MANUFACTURING, THE RELEVANT GEOGRAPHIC MARKET FOR ASSESSING THE EFFECT
OF THE MERGER UPON COMPETITION IS THE COUNTRY AS A WHOLE, BROWN
CONTENDED THAT WITH REGARD TO RETAILING, THE MARKET MUST VARY WITH
ECONOMIC REALITY FROM THE CENTRAL BUSINESS DISTRICT OF A LARGE CITY TO
A "STANDARD METROPOLITAN AREA" (FN2) FOR A SMALLER COMMUNITY.  BROWN
FURTHER CONTENDED THAT, BOTH AT THE MANUFACTURING LEVEL AND AT THE
RETAIL LEVEL, THE SHOE INDUSTRY ENJOYED HEALTHY COMPETITION AND THAT
THE VIGOR OF THIS COMPETITION WOULD NOT, IN ANY EVENT, BE DIMINISHED BY
THE PROPOSED MERGER BECAUSE KINNEY MANUFACTURED LESS THAN 0.5% AND
RETAILED LESS THAN 2% OF THE NATION'S SHOES. 

THE DISTRICT COURT REJECTED THE BROADEST CONTENTIONS OF BOTH
PARTIES.  THE DISTRICT COURT FOUND THAT "THERE IS ONE GROUP OF
CLASSIFICATIONS WHICH IS UNDERSTOOD AND RECOGNIZED BY THE ENTIRE
INDUSTRY AND THE PUBLIC - THE CLASSIFICATION INTO 'MEN'S,' 'WOMEN'S'
AND 'CHILDREN'S' SHOES SEPARATELY AND INDEPENDENTLY."  ON THE OTHER
HAND, "TO CLASSIFY SHOES AS A WHOLE COULD BE UNFAIR AND UNJUST; TO
CLASSIFY THEM FURTHER WOULD BE IMPRACTICAL, UNWARRANTED AND
UNREALISTIC." 

REALIZING THAT "THE AREAS OF EFFECTIVE COMPETITION FOR RETAILING
PURPOSES CANNOT BE FIXED WITH MATHEMATICAL PRECISION," THE DISTRICT
COURT FOUND THAT "WHEN DETERMINED BY ECONOMIC REALITY, FOR RETAILING, A
'SECTION OF THE COUNTRY' IS A CITY OF 10,000 OR MORE POPULATION AND ITS
IMMEDIATE AND CONTIGUOUS SURROUNDING AREA, REGARDLESS OF NAME
DESIGNATION, AND IN WHICH A KINNEY STORE AND A BROWN (OPERATED,
FRANCHISE, OR PLAN) (FN3) STORE ARE LOCATED." 

THE DISTRICT COURT REJECTED THE GOVERNMENT'S CONTENTION THAT THE
COMBINING OF THE MANUFACTURING FACILITIES OF BROWN AND KINNEY WOULD
SUBSTANTIALLY LESSEN COMPETITION IN THE PRODUCTION OF MEN'S, WOMEN'S,
OR CHILDREN'S SHOES FOR THE NATIONAL WHOLESALE MARKET.  HOWEVER, THE
DISTRICT COURT DID FIND THAT THE LIKELY FORECLOSURE OF OTHER
MANUFACTURERS FROM THE MARKET REPRESENTED BY KINNEY'S RETAIL OUTLETS
MAY SUBSTANTIALLY LESSEN COMPETITION IN THE MANUFACTURERS' DISTRIBUTION
OF "MEN'S," "WOMEN'S," AND "CHILDREN'S" SHOES, CONSIDERED SEPARATELY,
THROUGHOUT THE NATION.  THE DISTRICT COURT ALSO FOUND THAT THE MERGER
MAY SUBSTANTIALLY LESSEN COMPETITION IN RETAILING ALONE IN "MEN'S,"
"WOMEN'S," AND "CHILDREN'S" SHOES, CONSIDERED SEPARATELY, IN EVERY CITY
OF 10,000 OR MORE POPULATION AND ITS IMMEDIATE SURROUNDING AREA IN
WHICH BOTH A KINNEY AND A BROWN STORE ARE LOCATED. 

BROWN'S CONTENTIONS HERE DIFFER ONLY SLIGHTLY FROM THOSE MADE BEFORE
THE DISTRICT COURT.  IN ORDER FULLY TO UNDERSTAND AND APPRAISE THESE
ASSERTIONS, IT IS NECESSARY TO SET OUT IN SOME DETAIL THE DISTRICT
COURT'S FINDINGS COMCERNING THE NATURE OF THE SHOE INDUSTRY AND THE
PLACE OF BROWN AND KINNEY WITHIN THAT INDUSTRY. 

THE INDUSTRY. 

THE DISTRICT COURT FOUND THAT ALTHOUGH DOMESTIC SHOE PRODUCTION WAS
SCATTERED AMONG A LARGE NUMBER OF MANUFACTURERS, A SMALL NUMBER OF
LARGE COMPANIES OCCUPIED A COMMANDING POSITION.  THUS, WHILE THE 24
LARGEST MANUFACTURERS PRODUCED ABOUT 35% OF THE NATION'S SHOES, THE TOP
4 - INTERNATIONAL, ENDICOTT-JOHNSON, BROWN (INCLUDING KINNEY) AND
GENERAL SHOE - ALONE PRODUCED APPROXIMATELY 23% OF THE NATION'S SHOES
OR 65% OF THE PRODUCTION OF THE TOP 24. 

IN 1955, DOMESTIC PRODUCTION OF NONRUBBER SHOES WAS 509.2 MILLION
PAIRS, OF WHICH ABOUT 103.6 MILLION PAIRS WERE MEN'S SHOES, ABOUT 271
MILLION PAIRS WERE WOMEN'S SHOES, AND ABOUT 134.6 MILLION PAIRS WERE
CHILDREN'S SHOES.  (FN4)  THE DISTRICT COURT FOUND THAT MEN'S, WOMEN'S,
AND CHILDREN'S SHOES ARE NORMALLY PRODUCED IN SEPARATE FACTORIES. 

THE PUBLIC BUYS THESE SHOES THROUGH ABOUT 70,000 RETAIL OUTLETS, ONLY
22,000 OF WHICH, HOWEVER, DERIVE 50% OR MORE OF THEIR GROSS RECEIPTS
FROM THE SALE OF SHOES AND ARE CLASSIFIED AS "SHOE STORES" BY THE
CENSUS BUREAU.  (FN5)  THESE 22,000 SHOE STORES WERE FOUND GENERALLY TO
SELL (1) MEN'S SHOES ONLY, (2) WOMEN'S SHOES ONLY, (3) WOMEN'S AND
CHILDREN'S SHOES, OR (4) MEN'S, WOMEN'S, AND CHILDREN'S SHOES. 

THE DISTRICT COURT FOUND A "DEFINITE TREND" AMONG SHOE MANUFACTURERS
TO ACQUIRE RETAIL OUTLETS.  FOR EXAMPLE, INTERNATIONAL SHOE COMPANY HAD
NO RETAIL OUTLETS IN 1945, BUT BY 1956 HAD ACQUIRED 130; GENERAL SHOE
COMPANY HAD ONLY 80 RETAIL OUTLETS IN 1945 BUT HAD 526 BY 1956; SHOE
CORPORATION OF AMERICA, IN THE SAME PERIOD, INCREASED ITS RETAIL
HOLDINGS FROM 301 TO 842; MELVILLE SHOE COMPANY FROM 536 TO 947; AND
ENDICOTT-JOHNSON FROM 488 TO 540.  BROWN, ITSELF, WITH NO RETAIL
OUTLETS OF ITS OWN PRIOR TO 1951, HAD ACQUIRED 845 SUCH OUTLETS BY
1956.  MOREOVER, BETWEEN 1950 AND 1956 NINE INDEPENDENT SHOE STORE
CHAINS, OPERATING 1,114 RETAIL SHOE STORES, WERE FOUND TO HAVE BECOME
SUBSIDIARIES OF THESE LARGE FIRMS AND TO HAVE CEASED THEIR INDEPENDENT
OPERATIONS. 

AND ONCE THE MANUFACTURERS ACQUIRED RETAIL OUTLETS, THE DISTRICT
COURT FOUND THERE WAS A "DEFINITE TREND" FOR THE PARENT-MANUFACTURERS
TO SUPPLY AN EVER INCREASING PERCENTAGE OF THE RETAIL OUTLETS' NEEDS,
THEREBY FORECLOSING OTHER MANUFACTURERS FROM EFFECTIVELY COMPETING FOR
THE RETAIL ACCOUNTS.  MANUFACTURER-DOMINATED STORES WERE FOUND TO BE
"DRYING UP" THE AVAILABLE OUTLETS FOR INDEPENDENT PRODUCERS. 

ANOTHER "DEFINITE TREND" FOUND TO EXIST IN THE SHOE INDUSTRY WAS A
DECREASE IN THE NUMBER OF PLANTS MANUFACTURING SHOES.  AND THERE
APPEARS TO HAVE BEEN A CONCOMITANT DECREASE IN THE NUMBER OF PLANTS
MANUFACTURING SHOES.  IN 1947, THERE WERE 1,077 INDEPENDENT
MANUFACTURERS OF SHOES, BUT BY 1954 THEIR NUMBER HAD DECREASED ABOUT
10% TO 970.  (FN6) 

BROWN SHOE. 

BROWN SHOE WAS FOUND NOT ONLY TO HAVE BEEN A PARTICIPANT, BUT ALSO A
MOVING FACTOR, IN THESE INDUSTRY TRENDS.  ALTHOUGH BROWN HAD
EXPERIMENTED SEVERAL TIMES WITH OPERATING ITS OWN RETAIL OUTLETS, BY
1945 IT HAD DISPOSED OF THEM ALL.  HOWEVER, IN 1951, BROWN AGAIN BEGAN
TO SEEK RETAIL OUTLETS BY ACQUIRING THE NATION'S LARGEST OPERATOR OF
LEASED SHOE DEPARTMENTS, WOHL SHOE COMPANY (WOHL), WHICH OPERATED 250
SHOE DEPARTMENTS IN DEPARTMENT STORES THROUGHOUT THE UNITED STATES. 
BETWEEN 1952 AND 1955 BROWN MADE A NUMBER OF SMALLER ACQUISITIONS:
WETHERBY-KAYSER SHOE COMPANY (THREE RETAIL STORES), BARNES & COMPANY
(TWO STORES), REILLY SHOE COMPANY (TWO LEASED SHOE DEPARTMENTS),
RICHARDSON SHOE STORE (ONE STORE), AND WOHL SHOE COMPANY OF DALLAS (NOT
CONNECTED WITH WOHL) (LEASED SHOE DEPARTMENTS IN DALLAS).  IN 1954,
BROWN MADE ANOTHER MAJOR ACQUISITION: REGAL SHOE CORPORATION WHICH, AT
THE TIME, OPERATED ONE MANUFACTURING PLANT PRODUCING MEN'S SHOES AND
110 RETAIL OUTLETS. 

THE ACQUISITION OF THESE CORPORATIONS WAS FOUND TO LEAD TO INCREASED
SALES BY BROWN TO THE ACQUIRED COMPANIES.  THUS ALTHOUGH PRIOR TO
BROWN'S ACQUISITION OF WOHL IN 1951, WOHL BOUGHT FROM BROWN ONLY 12.8%
OF ITS TOTAL PURCHASES OF SHOES, IT SUBSEQUENTLY INCREASED ITS
PURCHASES TO 21.4% IN 1952 AND TO 32.6% IN 1955.  WETHERBY-KAYSER'S
PURCHASES FROM BROWN INCREASED FROM 10.4% BEFORE ACQUISITION TO OVER
50% AFTER.  REGAL, WHICH HAD PREVIOUSLY SOLD NO SHOES TO WOHL AND SHOES
WORTH ONLY $89,000 TO BROWN, IN 1956 SOLD SHOES WORTH $265,000 TO WOHL
AND $744,000 TO BROWN. 

DURING THE SAME PERIOD OF TIME, BROWN ALSO ACQUIRED THE STOCK OR
ASSETS OF SEVEN COMPANIES ENGAGED SOLELY IN SHOE MANUFACTURING.  AS A
RESULT, IN 1955, BROWN WAS THE FOURTH LARGEST SHOE MANUFACTURER IN THE
COUNTRY, PRODUCING ABOUT 25.6 MILLION PAIRS OF SHOES OR ABOUT 4% OF THE
NATION'S TOTAL FOOTWEAR PRODUCTION. 

KINNEY. 

KINNEY IS PRINCIPALLY ENGAGED IN OPERATING THE LARGEST FAMILY-STYLE
SHOE STORE CHAIN IN THE UNITED STATES.  AT THE TIME OF TRIAL, KINNEY
WAS FOUND TO BE OPERATING OVER 400 SUCH STORES IN MORE THAN 270
CITIES.  THESE STORES WERE FOUND TO MAKE ABOUT 1.2% OF ALL NATIONAL
RETAIL SHOE SALES BY DOLLAR VOLUME.  MOREOVER, IN 1955 THE KINNEY
STORES SOLD APPROXIMATELY 8 MILLION PAIRS OF NONRUBBER SHOES OR ABOUT
1.6% OF THE NATIONAL PAIRAGE SALES OF SUCH SHOES.  OF THESE SALES,
APPROXIMATELY 1.1 MILLION PAIRS WERE OF MEN'S SHOES OR ABOUT 1% OF THE
NATIONAL PAIRAGE SALES OF MEN'S SHOES; APPROXIMATELY 4.2 MILLION PAIRS
WERE OF WOMEN'S SHOES OR ABOUT 1.5% OF THE NATIONAL PAIRAGE SALES OF
WOMEN'S SHOES; AND APPROXIMATELY 2.7 MILLION PAIRS WERE OF CHILDREN'S
SHOES OR ABOUT 2% OF THE NATIONAL PAIRAGE SALES OF CHILDREN'S SHOES. 
(FN7) 

IN ADDITION TO THIS EXTENSIVE RETAIL ACTIVITY, KINNEY OWNED AND
OPERATED FOUR PLANTS WHICH MANUFACTURED MEN'S, WOMEN'S, AND CHILDREN'S
SHOES AND WHOSE COMBINED OUTPUT WAS 0.5% OF THE NATIONAL SHOE
PRODUCTION IN 1955, MAKING KINNEY THE TWELFTH LARGEST SHOE MANUFACTURER
IN THE UNITED STATES. 

KINNEY STORES WERE FOUND TO OBTAIN ABOUT 20% OF THEIR SHOES FROM
KINNEY'S OWN MANUFACTURING PLANTS.  AT THE TIME OF THE MERGER, KINNEY
BOUGHT NO SHOES FROM BROWN; HOWEVER, IN LINE WITH BROWN'S CONCEDED
REASONS (FN8) FOR ACQUIRING KINNEY, BROWN HAD, BY 1957, BECOME THE
LARGEST OUTSIDE SUPPLIER OF KINNEY'S SHOES, SUPPLYING 7.9% OF ALL
KINNEY'S NEEDS. 

IT IS IN THIS SETTING THAT THE MERGER WAS CONSIDERED AND HELD TO
VIOLATE SEC. 7 OF THE CLAYTON ACT.  THE DISTRICT COURT ORDERED BROWN TO
DIVEST ITSELF COMPLETELY OF ALL STOCK, SHARE CAPITAL, ASSETS OR OTHER
INTERESTS IT HELD IN KINNEY, TO OPERATE KINNEY TO THE GREATEST DEGREE
POSSIBLE AS AN INDEPENDENT CONCERN PENDING COMPLETE DIVESTITURE, TO
REFRAIN THEREAFTER FROM ACQUIRING OR HAVING ANY INTEREST IN KINNEY'S
BUSINESS OR ASSETS, AND TO FILE WITH THE COURT WITHIN 90 DAYS A PLAN
FOR CARRYING INTO EFFECT THE DIVESTITURE DECREED.  THE DISTRICT COURT
ALSO STATED IT WOULD RETAIN JURISDICTION OVER THE CAUSE TO ENABLE THE
PARTIES TO APPLY FOR SUCH FURTHER RELIEF AS MIGHT BE NECESSARY TO
ENFORCE AND APPLY THE JUDGMENT.  PRIOR TO ITS SUBMISSION OF A
DIVESTITURE PLAN, BROWN FILED A NOTICE OF APPEAL IN THE DISTRICT
COURT.  IT THEN FILED A JURISDICTIONAL STATEMENT IN THIS COURT, SEEKING
REVIEW OF THE JUDGMENT BELOW AS ENTERED. 
         II.

                JURISDICTION. 

APPELLANT'S JURISDICTIONAL STATEMENT CITES AS THE BASIS OF OUR
JURISDICTION OVER THIS APPEAL SEC. 2 OF THE EXPEDITING ACT OF FEBRUARY
11, 1903, 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29.  IN A CIVIL
ANTITRUST ACTION IN WHICH THE UNITED STATES IS THE COMPLAINANT THAT ACT
PROVIDES FOR A DIRECT APPEAL TO THIS COURT FROM "THE FINAL JUDGMENT OF
THE DISTRICT COURT."  (FN9)  THE GOVERNMENT DOES NOT CONTEST
APPELLANT'S CLAIM OF JURISDICTION; ON THE CONTRARY, IT MOVED TO HAVE
THE JUDGMENT BELOW SUMMARILY AFFIRMED, CONCEDING OUR PRESENT
JURISDICTION TO REVIEW THE MERITS OF THAT JUDGMENT.  WE DEFERRED RULING
ON THE GOVERNMENT'S MOTION FOR SUMMARY AFFIRMANCE AND NOTED PROBABLE
JURISDICTION OVER THE APPEAL.  363 U.S. 825.  (FN10) 

IT WAS SUGGESTED FROM THE BENCH DURING THE ORAL ARGUMENT THAT, SINCE
THE JUDGMENT OF THE DISTRICT COURT DOES NOT INCLUDE A SPECIFIC PLAN FOR
THE DISSOLUTION OF THE BROWN-KINNEY MERGER, BUT RESERVES SUCH A RULING
PENDING THE FILING OF SUGGESTED PLANS FOR IMPLEMENTING DIVESTITURE, THE
JUDGMENT BELOW IS NOT "FINAL" AS CONTEMPLATED BY THE EXPEDITING ACT. 
IN RESPONSE TO THAT SUGGESTION, BOTH PARTIES HAVE FILED BRIEFS
CONTENDING THAT WE DO HAVE JURISDICTION TO DISPOSE OF THE CASE ON THE
MERITS IN ITS PRESENT POSTURE.  HOWEVER, THE MERE CONSENT OF THE
PARTIES TO THE COURT'S CONSIDERATION AND DECISION OF THE CASE CANNOT,
BY ITSELF, CONFER JURISDICTION ON THE COURT.  SEE AMERICAN FIRE &
CASUALTY CO. V. FINN, 341 U.S. 6, 17-18; PEOPLE'S BANK V. CALHOUN, 102
U.S. 256, 260-261; CAPRON V. VAN NOORDEN, 2 CRANCH, 126, 127. 
THEREFORE, A REVIEW OF THE SOURCES OF THE COURT'S JURISDICTION IS
THRESHOLD INQUIRY APPROPRIATE TO THE DISPOSITON OF EVERY CASE THAT
COMES BEFORE US.  REVISED RULES OF THE SUPREME COURT, 15(1)(B),
23(1)(B); KESLER V. DEPARTMENT OF PUBLIC SAFETY, 369 U.S. 153; COLLINS
V. MILLER, 252 U.S. 364; UNITED STATES V. MORE, 3 CRANCH 159. 

THE REQUIREMENT THAT A FINAL JUDGMENT SHALL HAVE BEEN ENTERED IN A
CASE BY A LOWER COURT BEFORE A RIGHT OF APPEAL ATTACHES HAS AN ANCIENT
HISTORY IN FEDERAL PRACTICE, FIRST APPEARING IN THE JUDICIARY ACT OF
1789.  (FN11)  WITH OCCASSIONAL MODIFICATIONS, THE REQUIREMENT HAS
REMAINED A CORNERSTONE OF THE STRUCTURE OF APPEALS IN THE FEDERAL
COURTS.  (FN12)  THE COURT HAS ADOPTED ESSENTIALLY PRACTICAL TESTS FOR
IDENTIFYING THOSE JUDGMENTS WHICH ARE, AND THOSE WHICH ARE NOT, TO BE
CONSIDERED "FINAL."  SEE, E.G., COBBLEDICK V. UNITED STATES, 309 U.S.
323, 326; MARKET STREET R. CO. V. RAILROAD COMM'N, 324 U.S. 548, 552;
REPUBLIC NATURAL GAS CO. V. OKLAHOMA, 334 U.S. 62, 69; COHEN V.
BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541, 546; DIBELLA V. UNITED
STATES, 369 U.S. 121, 124, 129; CF. FEDERAL TRADE COMM'N V. MINNEAPOLIS
HONEYWELL REGULATOR CO., 344 U.S. 206, 212; UNITED STATES V. SCHAEFER
BREWING CO., 356 U.S. 227, 232.  A PRAGMATIC APPROACH TO THE QUESTION
OF FINALITY HAS BEEN CONSIDERED ESSENTIAL TO THE ACHIEVEMENT OF THE
"JUST, SPEEDY, AND INEXPENSIVE DETERMINATION OF EVERY ACTION":  (FN13)
THE TOUCHSTONES OF FEDERAL PROCEDURE. 

IN MOST CASES IN WHICH THE EXPEDITING ACT HAS BEEN CITED AS THE BASIS
OF THIS COURT'S JURISDICTION, THE ISSUE "FINALITY" HAS NOT BEEN RAISED
OR DISCUSSED BY THE PARTIES OR THE COURT.  ON BUT FEW OCCASIONS HAVE
PARTICULAR ORDERS IN SUITS TO WHICH THAT ACT IS APPLICABLE BEEN
CONSIDERED IN THE LIGHT OF CLAIMS THAT THEY WERE INSUFFICIENTLY "FINAL"
SO AS TO PRECLUDE APPEAL TO THIS COURT.  COMPARE SCHINE CHAIN THEATRES
V. UNITED STATES, 329 U.S. 686, WITH SCHINE CHAIN THEATRES V. UNITED
STATES, 334 U.S. 110.  THE QUESTION HAS GENERALLY BEEN PASSED OVER
WITHOUT COMMENT IN ADJUDICATIONS ON THE MERITS.  WHILE WE ARE NOT BOUND
BY PREVIOUS EXERCISES OF JURISDICTION IN CASES IN WHICH OUR POWER TO
ACT WAS NOT QUESTIONED BUT WAS PASSED SUB SILENTIO, UNITED STATES V.
TUCKER TRUCK LINES, 344 U.S. 33, 38; UNITED STATES EX REL. ARANT V.
LANE, 245 U.S. 166, 170, NEITHER SHOULD WE DISREGARD THE IMPLICATIONS
OF AN EXERCISE OF JUDICIAL AUTHORITY ASSUMED TO BE PROPER FOR OVER 40
YEARS.  (FN14)  CF. STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368, 379
380; RADIO STATION WOW V. JOHNSON, 326 U.S. 120, 125-126. 

WE THINK THE DECREE OF THE DISTRICT COURT IN THIS CASE HAD SUFFICIENT
INDICIA OF FINALITY FOR US TO HOLD THAT THE JUDGMENT IS PROPERLY
APPEALABLE AT THIS TIME.  WE NOTE, FIRST, THAT THE DISTRICT COURT
DISPOSED OF THE ENTIRE COMPLAINT FILED BY THE GOVERNMENT.  EVERY PRAYER
FOR RELIEF WAS PASSED UPON.  FULL DIVESTITURE BY BROWN OF KINNEY'S
STOCK AND ASSETS WAS EXPRESSLY REQUIRED.  APPELLANT WAS PERMANENTLY
ENJOINED FROM ACQUIRING OR HAVING ANY FURTHER INTEREST IN THE BUSINESS,
STOCK OR ASSETS OF THE OTHER DEFENDANT IN THE SUIT.  THE SINGLE
PROVISION OF THE JUDGMENT BY WHICH ITS FINALITY MAY BE QUESTIONED IS
THE ONE REQUIRING APPELLANT TO PROPOSE IN THE IMMEDIATE FUTURE A PLAN
FOR CARRYING INTO EFFECT THE COURT'S ORDER OF DIVESTITURE.  HOWEVER,
WHEN WE REACH THE MERITS OF, AND AFFIRM, THE JUDGMENT BELOW, THE SOLE
REMAINING TASK FOR THE DISTRICT COURT WILL BE ITS ACCEPTANCE OF A PLAN
FOR FULL DIVESTITURE, AND THE SUPERVISION OF THE PLAN SO ACCEPTED. 
FURTHER RULINGS OF THE DISTRICT COURT IN ADMINISTERING ITS DECREE,
FACILITATED BY THE FACT THAT THE DEFENDANTS BELOW HAVE BEEN REQUIRED TO
MAINTAIN SEPARATE BOOKS PENDENTE LITE, ARE SUFFICIENTLY INDEPENDENT OF,
AND SUBORDINATE TO, THE ISSUES PRESENTED BY THIS APPEAL TO MAKE THE
CASE IN ITS PRESENT POSTURE A PROPER ONE FOR REVIEW NOW.  (FN15)
APPELLANT HERE DOES NOT ATTACK THE FULL DIVESTITURE ORDERED BY THE
DISTRICT COURT AS SUCH; IT IS APPELLANT'S CONTENTION THAT UNDER THE
FACTS OF THE CASE, AS ALLEGED AND PROVED BY THE GOVERNMENT, NO ORDER OF
DIVESTITURE WAS CONSIDERED BELOW AND IS DISPUTED HERE ON AN "ALL OR
NOTHING" BASIS.  IT IS RIPE FOR REVIEW NOW, AND WILL, THEREAFTER, BE
FORECLOSED.  REPETITIVE JUDICIAL CONSIDERATION OF THE SAME QUESTION IN
A SINGLE SUIT WILL NOT OCCUR HERE.  CF. RADIO STATION WOW V. JOHNSON,
SUPRA, AT 127; CATLIN V. UNITED STATES, 324 U.S. 229, 233-234;
COBBLEDICK V. UNITED STATES, SUPRA, AT 325, 330. 

A SECOND CONSIDERATION SUPPORTING OUR VIEW IS THE CHARACTER OF THE
DECREE STILL TO BE ENTERED IN THIS SUIT.  IT WILL BE AN ORDER OF FULL
DIVESTITURE.  SUCH AN ORDER REQUIRES CAREFUL, AND OFTEN EXTENDED,
NEGOTIATION AND FORMULATION.  THIS PROCESS DOES NOT TAKE PLACE IN A
VACUUM, BUT, RATHER, IN A CHANGING MARKET PLACE, IN WHICH BUYERS AND
BANKERS MUST BE FOUND TO ACCOMPLISH THE ORDER OF FORCED SALE.  THE
UNSETTLING INFLUENCE OF UNCERTAINTY AS TO THE AFFIRMANCE OF THE
INITIAL, UNDERLYING DECISION COMPELLING DIVESTITURE WOULD ONLY MAKE
STILL MORE DIFFICULT THE TASK OF ASSURING EXPEDITIOUS ENFORCEMENT OF
THE ANTITRUST LAWS.  THE DELAY IN WITHHOLDING REVIEW OF ANY OF THE
ISSUES IN THE CASE UNTIL THE DETAILS OF A DIVESTITURE HAD BEEN APPROVED
BY THE DISTRICT COURT AND REVIEWED HERE COULD WELL MEAN A CHANGE IN
MARKET CONDITIONS SUFFICIENTLY PRONOUNCED TO RENDER IMPRACTICAL OR
OTHERWISE UNENFORCEABLE THE VERY PLAN OF ASSET DISPOSITION FOR WHICH
THE LITIGATION WAS HELD.  THE PUBLIC INTEREST, AS WELL AS THAT OF THE
PARTIES, WOULD LOSE BY SUCH PROCEDURE. 

LASTLY, HOLDING THE DECREE OF THE DISTRICT COURT IN THE INSTANT CASE
LESS THAN "FINAL" AND, THUS, NOT APPEALABLE, WOULD REQUIRE A DEPARTURE
FROM A SETTLED COURSE OF THE COURT'S PRACTICE.  IT HAS CONSISTENTLY
REVIEWED ANTITRUST DECREES CONTEMPLATING EITHER FUTURE DIVESTITURE OR
OTHER COMPARABLE REMEDIAL ACTION PRIOR TO THE FORMULATION AND ENTRY OF
THE PRECISE DETAILS OF THE RELIEF ORDERED.  NO INSTANCE HAS BEEN FOUND
IN WHICH THE COURT HAS REVIEWED A CASE FOLLOWING A DIVESTITURE DECREE
SUCH AS THE ONE WE ARE ASKED TO CONSIDER HERE, IN WHICH THE PARTY
SUBJECT TO THAT DECREE HAS LATER BROUGHT THE CASE BACK TO THIS COURT
WITH CLAIMS OF ERROR IN THE DETAILS OF THE DIVESTITURE FINALLY
APPROVED.  (FN16)  AND ONLY TWO YEARS AGO, WE WERE UNANIMOUS IN
ACCEPTING JURISDICTION, AND IN AFFIRMING THE JUDGMENT OF A DISTRICT
COURT SIMILAR TO THE ONE ENTERED HERE, IN THE ONLY CASE UNDER AMENDED
SEC. 7 OF THE CLAYTON ACT BROUGHT BEFORE US AT A JUNCTURE COMPARABLE TO
THE INSTANT LITIGATION.  SEE MARYLAND & VIRGINIA MILK PRODUCERS ASSN.
V. UNITED STATES, 362 U.S. 458, 472-473.  (FN17)  A FEAR OF PIECEMEAL
APPEALS BECAUSE OF OUR ADHERENCE TO EXISTING PROCEDURE CAN FIND NO
SUPPORT IN HISTORY.  THUS, THE SUBSTANTIAL BODY OF PRECEDENT FOR
ACCEPTING JURISDICTION OVER THIS CASE IN ITS PRESENT POSTURE SUPPORTS
THE PRACTICAL CONSIDERATIONS PREVIOUSLY DISCUSSED.  WE BELIEVE A
CONTRARY RESULT WOULD BE INCONSISTENT WITH THE VERY PURPOSES FOR WHICH
THE EXPEDITING ACT WAS PASSED AND THAT GAVE IT ITS NAME. 

                                      III. 

                               LEGISLATIVE HISTORY. 

THIS CASE IS ONE OF THE FIRST TO COME BEFORE US IN WHICH THE
GOVERNMENT'S COMPLAINT IS BASED UPON ALLEGATIONS THAT THE APPELLANT HAS
VIOLATED SEC. 7 OF THE CLAYTON ACT, AS THAT SECTION WAS AMENDED IN
1950.  (FN18)  THE AMENDMENTS ADOPTED IN 1950 CULMINATED EXTENSIVE
EFFORTS OVER A NUMBER OF YEARS, ON THE PARTS OF BOTH THE FEDERAL TRADE
COMMISSION AND SOME MEMBERS OF CONGRESS, TO SECURE REVISION OF A
INEFFECTIVE IN ITS THEN EXISTING FORM.  SIXTEEN BILLS TO AMEND SEC.  7
DURING THE PERIOD 1943 TO 1949 ALONE WERE INTRODUCED FOR CONSIDERATION
BY THE CONGRESS, AND FULL PUBLIC HEARINGS ON PROPOSED AMENDMENTS WERE
HELD IN THREE SEPARATE SESSIONS.  (FN19)  IN THE LIGHT OF THIS
EXTENSIVE LEGISLATIVE ATTENTION TO THE MEASURE, AND THE BROAD, GENERAL
LANGUAGE FINALLY SELECTED BY CONGRESS FOR THE EXPRESSION OF ITS WILL,
WE THINK IT APPROPRIATE TO REVIEW THE HISTORY OF THE AMENDED ACT IN
DETERMINING WHETHER THE JUDGMENT OF THE COURT BELOW WAS CONSISTENT WITH
THE INTENT OF THE LEGISLATURE.  SEE UNITED STATES V. E.I. DU PONT DE
NEMOURS & CO., 353 U.S. 586, 591-592; SCHWEGMANN BROS.  V. CALVERT
DISTILLERS CORP., 341 U.S. 384, 390-395; FEDERAL TRADE COMM'N V. MORTON
SALT CO., 334 U.S. 37, 43-46, 49; CORN PRODUCTS REFINING CO. V. FEDERAL
TRADE COMM'N, 324 U.S. 726, 734-737. 

AS ENACTED IN 1914, SEC. 7 OF THE ORIGINAL CLAYTON ACT PROHIBITED THE
ACQUISITION BY ONE CORPORAION OF THE STOCK OF ANOTHER CORPORATION WHEN
SUCH ACQUISITION WOULD RESULT IN A SUBSTANTIAL LESSENING OF COMPETITION
BETWEEN THE ACQUIRING AND THE ACQUIRED COMPANIES, OR TEND TO CREATE A
MONOPOLY IN ANY LINE OF COMMERCE.  THE ACT DID NOT, BY ITS EXPLICIT
TERMS, OR AS CONSTRUED BY THIS COURT, BAR THE ACQUISITION BY ONE
CORPORATION OF THE ASSETS OF ANOTHER.  (FN20)  NOR DID IT APPEAR TO
PRECLUDE THE ACQUISITION OF STOCK IN ANY CORPORATION OTHER THAN A
DIRECT COMPETITOR.  (FN21) ALTHOUGH PROPONENTS OF THE 1950 AMENDMENTS
TO THE ACT SUGGESTED THAT THE TERMINOLOGY EMPLOYED IN THESE PROVISIONS
WAS THE RESULT OF ACCIDENT OR AN UNAWARENESS THAT THE ACQUISITION OF
ASSETS COULD BE AS INIMICAL TO COMPETITION AS STOCK ACQUISITION, A
REVIEW OF THE LEGISLATIVE HISTORY OF THE ORIGINAL CLAYTON ACT FAILS TO
SUPPORT SUCH VIEWS.  (FN22)  THE POSSIBILITY OF ASSET ACQUISITION WAS
DISCUSSED, (FN23) BUT WAS NOT CONSIDERED IMPORTANT TO AN ACT THEN
CONCEIVED TO BE DIRECTED PRIMARILY AT THE DEVELOPMENT OF HOLDING
COMPANIES AND AT THE SECRET ACQUISITION OF COMPETITORS THROUGH THE
PURCHASE OF ALL OR PARTS OF SUCH COMPETITORS' STOCK.  (FN24) 

IT WAS, HOWEVER, NOT LONG BEFORE THE FEDERAL TRADE COMMISSION
RECOGNIZED DEFICIENCIES IN THE ACT AS FIRST ENACTED.  ITS ANNUAL
REPORTS FREQUENTLY SUGGESTED AMENDMENTS, PRINCIPALLY ALONG TWO LINES:
FIRST, TO "PLUG THE LOOPHOLE" EXEMPTING ASSET ACQUISITIONS FROM
COVERAGE UNDER THE ACT, AND SECOND, TO REQUIRE COMPANIES PROPOSING A
MERGER TO GIVE THE COMMISSION PRIOR NOTIFICATION OF THEIR PLANS. 
(FN25)  THE FINAL REPORT OF THE TEMPORARY NATIONAL ECONOMIC COMMITTEE
ALSO RECOMMENDED CHANGES FOCUSING ON THESE TWO PROPOSALS.  (FN26)
HEARINGS WERE HELD ON SOME BILLS INCORPORATING EITHER OR BOTH OF THESE
CHANGES BUT, PRIOR TO THE AMENDMENTS ADOPTED IN 1950, NONE REACHED THE
FLOOR OF CONGRESS FOR PLENARY CONSIDERATION.  ALTHOUGH THE BILL THAT
WAS EVENTUALLY TO BECOME AMENDED SEC. 7 WAS CONFINED TO EMBRACING
WITHIN THE ACT'S TERMS THE ACQUISITION OF ASSETS AS WELL AS STOCK, IN
THE COURSE OF THE HEARINGS CONDUCTED IN BOTH THE EIGHTIETH AND EIGHTY
FIRST CONGRESSES, A MORE FAR-REACHING EXAMINATION OF THE PURPOSES AND
PROVISIONS OF SEC. 7 WAS UNDERTAKEN.  A REVIEW OF THE LEGISLATIVE
HISTORY OF THESE AMENDMENTS PROVIDES NO UNMISTAKABLY CLEAR INDICATION
OF THE PRECISE STANDARDS THE CONGRESS WISHED THE FEDERAL TRADE
COMMISSION AND THE COURTS TO APPLY IN JUDGING THE LEGALITY OF
PARTICULAR MERGERS.  HOWEVER, SUFFICIENT EXPRESSIONS OF A CONSISTENT
POINT OF VIEW MAY BE FOUND IN THE HEARINGS, COMMITTEE REPORTS OF BOTH
THE HOUSE AND SENATE AND IN FLOOR DEBATE TO PROVIDE THOSE CHARGED WITH
ENFORCING THE ACT WITH A USABLE FRAME OF REFERENCE WITHIN WHICH TO
EVALUATE ANY GIVEN MERGER. 

THE DOMINANT THEME PERVADING CONGRESSIONAL CONSIDERATION OF THE 1950
AMENDMENTS WAS A FEAR OF WHAT WAS CONSIDERED TO BE A RISING TIDE OF
ECONOMIC CONCENTRATION IN THE AMERICAN ECONOMY.  APPREHENSION IN THIS
REGARD WAS BOLSTERED BY THE PUBLICATION IN 1948 OF THE FEDERAL TRADE
COMMISSION'S STUDY ON CORPORATE MERGERS.  STATISTICS FROM THIS AND
OTHER CURRENT STUDIES WERE CITED AS EVIDENCE OF THE DANGER TO THE
AMERICAN ECONOMY IN UNCHECKED CORPORATE EXPANSIONS THROUGH MERGERS. 
(FN27)  OTHER CONSIDERATIONS CITED IN SUPPORT OF THE BILL WERE THE
DESIRABILITY OF RETAINING "LOCAL CONTROL" OVER INDUSTRY AND THE
PROTECTION OF SMALL BUSINESSES.  (FN28)  THROUGHOUT THE RECORDED
DISCUSSION MAY BE FOUND EXAMPLES OF CONGRESS' FEAR NOT ONLY OF
ACCELERATED CONCENTRATION OF ECONOMIC POWER ON ECONOMIC GROUNDS, BUT
ALSO OF THE THREAT TO OTHER VALUES A TREND TOWARD CONCENTRATION WAS
THOUGHT TO POSE.    WHAT WERE SOME OF THE FACTORS, RELEVANT TO A
JUDGMENT AS TO THE VALIDITY OF A GIVEN MERGER, SPECIFICALLY DISCUSSED
BY CONGRESS IN REDRAFTING SEC. 7? 

FIRST, THERE IS NO DOUBT THAT CONGRESS DID WISH TO "PLUG THE
LOOPHOLE" AND TO INCLUDE WITHIN THE COVERAGE OF THE ACT THE ACQUISITION
OF ASSETS NO LESS THAN THE ACQUISITION OF STOCK.  (FN29) 

SECOND, BY THE DELETION OF THE "ACQUIRING-ACQUIRED" LANGUAGE IN THE
ORIGINAL TEST, (FN30) IT HOPED TO MAKE PLAIN THAT SEC. 7 APPLIED NOT
ONLY TO MERGERS BETWEEN ACTUAL COMPETITORS, BUT ALSO TO VERTICAL AND
CONGLOMERATE MERGERS WHOSE EFFECT MAY TEND TO LESSEN COMPETITION IN ANY
LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY.  (FN31) 

THIRD, IT IS APPARENT THAT A KEYSTONE IN THE ERECTION OF A BARRIER TO
WHAT CONGRESS SAW WAS THE RISING TIDE OF ECONOMIC CONCENTRATION, WAS
ITS PROVISION OF AUTHORITY FOR ARRESTING MERGERS AT A TIME WHEN THE
TREND TO A LESSENING OF COMPETITION IN A LINE OF COMMERCE WAS STILL IN
ITS INCIPIENCY.   CONGRESS SAW THE PROCESS OF CONCENTRATION IN AMERICAN
BUSINESS AS A DYNAMIC FORCE; IT SOUGHT TO ASSURE THE FEDERAL TRADE
COMMISSION AND THE COURTS THE POWER TO BRAKE THIS FORCE AT ITS OUTSET
AND BEFORE IT GATHERED MOMENTUM.  (FN32) 

FOURTH, AND CLOSELY RELATED TO THE THIRD, CONGRESS REJECTED, AS
INAPPROPRIATE TO THE PROBLEM IT SOUGHT TO REMEDY, THE APPLICATION TO
SEC. 7 CASES OF THE STANDARDS FOR JUDGING THE LEGALITY OF BUSINESS
COMBINATIONS ADOPTED BY THE COURTS IN DEALING WITH CASES ARISING UNDER
THE SHERMAN ACT, AND WHICH MAY HAVE BEEN APPLIED TO SOME EARLY CASES
ARISING UNDER ORIGINAL SEC. 7.  (FN33) 

FIFTH, AT THE SAME TIME THAT IT SOUGHT TO CREATE AN EFFECTIVE TOOL
FOR PREVENTING ALL MERGERS HAVING DEMONSTRABLE ANTICOMPETITIVE EFFECTS,
CONGRESS RECOGNIZED THE STIMULATION TO COMPETITION THAT MIGHT FLOW FROM
PARTICULAR MERGERS.  WHEN CONCERN AS TO THE ACT'S BREADTH WAS
EXPRESSED, SUPPORTERS OF THE AMENDMENTS INDICATED THAT IT WOULD NOT
IMPEDE, FOR EXAMPLE, A MERGER BETWEEN TWO SMALL COMPANIES TO ENABLE THE
COMBINATION TO COMPETE MORE EFFECTIVELY WITH LARGER CORPORATIONS
DOMINATING THE RELEVANT MARKET, NOR A MERGER BETWEEN A CORPORATION
WHICH IS FINANCIALLY HEALTHY AND A FAILING ONE WHICH NO LONGER CAN BE A
VITAL COMPETITIVE FACTOR IN THE MARKET.  (FN34) THE DELETION OF THE
WORD "COMMUNITY" IN THE ORIGINAL ACT'S DESCRIPTION OF THE RELEVANT
GEOGRAPHIC MARKET IS ANOTHER ILLUSTRATION OF CONGRESS' DESIRE TO
INDICATE THAT ITS CONCERN WAS WITH THE ADVERSE EFFECTS OF A GIVEN
MERGER ON COMPETITION ONLY IN AN ECONOMICALLY SIGNIFICANT "SECTION" OF
THE COUNTRY.  (FN35) TAKEN AS A WHOLE, THE LEGISLATIVE HISTORY
ILLUMINATES CONGRESSIONAL CONCERN WITH THE PROTECTION OF COMPETITION,
NOT COMPETITORS, AND ITS DESIRE TO RESTRAIN MERGERS ONLY TO THE EXTENT
THAT SUCH COMBINATIONS MAY TEND TO LESSEN COMPETITION. 

SIXTH, CONGRESS NEITHER ADOPTED NOR REJECTED SPECIFICALLY ANY
PARTICULAR TESTS FOR MEASURING THE RELEVANT MARKETS, EITHER AS DEFINED
IN TERMS OF PRODUCT OR IN TERMS OF GEOGRAPHIC LOCUS OF COMPETITION,
WITHIN WHICH THE ANTICOMPETITIVE EFFECTS OF A MERGER WERE TO BE
JUDGED.  NOR DID IT ADOPT A DEFINITION OF THE WORD "SUBSTANTIALLY,"
WHETHER IN QUANTITATIVE TERMS OF SALES OR ASSETS OR MARKET SHARES OR IN
DESIGNATED QUALITATIVE TERMS, BY WHICH A MERGER'S EFFECTS ON
COMPETITION WERE TO BE MEASURED.  (FN36) 

SEVENTH, WHILE PROVIDING NO DEFINITE QUANTITATIVE OR QUALITATIVE
TESTS BY WHICH ENFORCEMENT AGENCIES COULD GAUGE THE EFFECTS OF A GIVEN
MERGER TO DETERMINE WHETHER IT MAY "SUBSTANTIALLY" LESSEN COMPETITION
OR TEND TOWARD MONOPOLY, CONGRESS INDICATED PLAINLY THAT A MERGER HAD
TO BE FUNCTIONALLY VIEWED, IN THE CONTEXT OF ITS PARTICULAR INDUSTRY. 
(FN37)  THAT IS, WHETHER THE CONSOLIDATION WAS TO TAKE PLACE IN AN
INDUSTRY THAT WAS FRAGMENTED RATHER THAN CONCENTRATED, THAT HAD SEEN A
RECENT TREND TOWARD DOMINATION BY A FEW LEADERS OR HAD REMAINED FAIRLY
CONSISTENT IN ITS DISTRIBUTION OF MARKET SHARES AMONG THE PARTICIPATING
COMPANIES, THAT HAD EXPERIENCED EASY ACCESS TO MARKETS BY SUPPLIERS AND
EASY ACCESS TO SUPPLIERS BY BUYERS OR HAD WITNESSED FORECLOSURE OF
BUSINESS THAT HAD WITNESSED THE READY ENTRY OF NEW COMPETITION OR THE
ERECTION OF BARRIERS TO PROSPECTIVE ENTRANTS, ALL WERE ASPECTS, VARYING
IN IMPORTANCE WITH THE MERGER UNDER CONSIDERATION, WHICH WOULD PROPERLY
BE TAKEN INTO ACCOUNT.  (FN38) 

EIGHTH, CONGRESS USED THE WORDS "MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION" TO INDICATE THAT ITS CONCERN WAS WITH PROBABILITIES, NOT
CERTAINTIES.  (FN39)  STATUTES EXISTED FOR DEALING WITH CLEAR-CUT
MENACES TO COMPETITION; NO STATUTE WAS SOUGHT FOR DEALING WITH
EPHEMERAL POSSIBILITIES.  MERGERS WITH A PROBABLE ANTICOMPETITIVE
EFFECT WERE TO BE PROSCRIBED BY THIS ACT. 

IT IS AGAINST THIS BACKGROUND THAT WE RETURN TO THE CASE BEFORE US.

                                       IV.

            THE VERTICAL ASPECTS OF THE MERGER. 

ECONOMIC ARRANGEMENTS BETWEEN COMPANIES STANDING IN A SUPPLIER
CUSTOMER RELATIONSHIP ARE CHARACTERIZED AS "VERTICAL."  THE PRIMARY
VICE OF A VERTICAL MERGER OR OTHER ARRANGEMENT TYING A CUSTOMER TO A
SUPPLIER IS THAT, BY FORECLOSING THE COMPETITORS OF EITHER PARTY FROM A
SEGMENT OF THE MARKET OTHERWISE OPEN TO THEM, THE ARRANGEMENT MAY ACT
AS A "CLOG ON COMPETITION," STANDARD OIL CO. OF CALIFORNIA V. UNITED
STATES, 337 U.S. 293, 314, WHICH "DEPRIVES  ...  RIVALS OF A FAIR
OPPORTUNITY TO COMPETE."  (FN40)  H.R.  REP. NO. 1191, 81ST CONG., 1ST
SESS. 8.  EVERY EXTENDED VERTICAL ARRANGEMENT BY ITS VERY NATURE, FOR
AT LEAST A TIME, DENIES TO COMPETITORS OF THE SUPPLIER THE OPPORTUNITY
TO COMPETE FOR PART OR ALL OF THE TRADE OF THE CUSTOMER-PARTY TO THE
VERTICAL ARRANGEMENT.  HOWEVER, THE CLAYTON ACT DOES NOT RENDER
UNLAWFUL ALL SUCH VERTICAL ARRANGEMENTS, BUT FORBIDS ONLY THOSE WHOSE
EFFECT "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY" "IN ANY LINE OF COMMERCE IN ANY SECTION OF THE
COUNTRY."  THUS, AS WE HAVE PREVIOUSLY NOTED: 

"DETERMINATION OF THE RELEVANT MARKET IS A NECESSARY PREDICATE TO A
FINDING OF A VIOLATION OF THE CLAYTON ACT BECAUSE THE THREATENED
MONOPOLY MUST BE ONE WHICH WILL SUBSTANTIALLY LESSEN COMPETITION
'WITHIN THE AREA OF EFFECTIVE COMPETITION.'  SUBSTANTIALITY CAN BE
DETERMINED ONLY IN TERMS OF THE MARKET AFFECTED."  (FN41) 

THE "AREA OF EFFECTIVE COMPETITION" MUST BE DETERMINED BY REFERENCE
TO A PRODUCT MARKET (THE "LINE OF COMMERCE") AND A GEOGRAPHIC MARKET
(THE "SECTION OF THE COUNTRY"). 

THE PRODUCT MARKET. 

THE OUTER BOUNDARIES OF A PRODUCT MARKET ARE DETERMINED BY THE
REASONABLE INTERCHANGEABILITY OF USE OR THE CROSS-ELASTICITY OF DEMAND
BETWEEN THE PRODUCT ITSELF AND SUBSTITUTES FOR IT (FN42) HOWEVER,
WITHIN THIS BROAD MARKET, WELL-DEFINED SUBMARKETS MAY EXIST WHICH, IN
THEMSELVES, CONSTITUTE PRODUCT MARKETS FOR ANTITRUST PURPOSES.  UNITED
STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, 593-595.  THE
BOUNDARIES OF SUCH A SUBMARKET MAY BE DETERMINED BY EXAMINING SUCH
PRACTICAL INDICIA AS INDUSTRY OR PUBLIC RECOGNITION OF THE SUBMARKET AS
A SEPARATE ECONOMIC ENTITY, THE PRODUCT'S PECULIAR CHARACTERISTICS AND
USES, UNIQUE PRODUCTION FACILITIES, DISTINCT CUSTOMERS, DISTINCT
PRICES, SENSITIVITY TO PRICE CHANGES, AND SPECIALIZED VENDORS.  (FN43)
BECAUSE SEC. 7 OF THE CLAYTON ACT PROHIBITS ANY MERGER WHICH MAY
SUBSTANTIALLY LESSEN COMPETITION "IN ANY LINE OF COMMERCE" IT IS
NECESSARY TO EXAMINE THE EFFECTS OF A MERGER IN EACH SUCH ECONOMICALLY
SIGNIFICANT SUBMARKET TO DETERMINE IF THERE IS A REASONABLE PROBABILITY
THAT THE MERGER WILL SUBSTANTIALLY LESSEN COMPETITION.  IF SUCH A
PROBABILITY IS FOUND TO EXIST, THE MERGER IS PROSCRIBED.  (FN44) 

APPLYING THESE CONSIDERATIONS TO THE PRESENT CASE, WE CONCLUDE THAT
THE RECORD SUPPORTS THE DISTRICT COURT'S FINDING THAT THE RELEVANT
LINES OF COMMERCE ARE MEN'S, WOMEN'S, AND CHILDREN'S SHOES.  THESE
PRODUCT LINES ARE RECOGNIZED BY THE PUBLIC; EACH LINE IS MANUFACTURED
IN SEPARATE PLANTS; EACH HAS CHARACTERISTICS PECULIAR TO ITSELF
RENDERING IT GENERALLY NONCOMPETITIVE WITH THE OTHERS; AND EACH IS, OF
COURSE, DIRECTED TOWARD A DISTINCT CLASS OF CUSTOMERS. 

APPELLANT, HOWEVER, CONTENDS THAT THE DISTRICT COURT'S DEFINITIONS
FAIL TO RECOGNIZE SUFFICIENTLY "PRICE/QUALITY" AND "AGE/SEX"
DISTINCTIONS IN SHOES.  BROWN ARGUES THAT THE PREDOMINANTLY MEDIUM
PRICED SHOES WHICH IT MANUFACTURES OCCUPY A PRODUCT MARKET DIFFERENT
FROM THE PREDOMINANTLY LOW-PRICED SHOES WHICH KINNEY SELLS.  BUT
AGREEMENT WITH THAT ARGUMENT WOULD BE EQUIVALENT TO HOLDING THAT MEDIUM
PRICED SHOES DO NOT COMPETE WITH LOW-PRICED SHOES.  WE THINK THE
DISTRICT COURT PROPERLY FOUND THE FACTS TO BE OTHERWISE.  IT WOULD BE
UNREALISTIC TO ACCEPT BROWN'S CONTENTION THAT, FOR EXAMPLE, MEN'S SHOES
SELLING BELOW $8.99 ARE IN A DIFFERENT PRODUCT MARKET FROM THOSE
SELLING ABOVE $9.00. 

THIS IS NOT TO SAY, HOWEVER, THAT "PRICE/QUALITY" DIFFERENCES, WHERE
THEY EXIST, ARE UNIMPORTANT IN ANALYZING A MERGER; THEY MAY BE OF
IMPORTANCE IN DETERMINING THE LIKELY EFFECT OF A MERGER.  BUT THE
BOUNDARIES OF THE RELEVANT MARKET MUST BE DRAWN WITH SUFFICIENT BREADTH
TO INCLUDE THE COMPETING PRODUCTS OF EACH OF THE MERGING COMPANIES AND
TO RECOGNIZE COMPETITION WHERE, IN FACT, COMPETITION EXISTS.  THUS WE
AGREE WITH THE DISTRICT COURT THAT IN THIS CASE A FURTHER DIVISION OF
PRODUCT LINES BASED ON "PRICE/QUALITY" DIFFERENCES WOULD BE
"UNREALISTIC." 

BROWN'S CONTENTION THAT THE DISTRICT COURT'S PRODUCT MARKET
DEFINITIONS SHOULD HAVE RECOGNIZED FURTHER "AGE/SEX" DISTINCTIONS
RAISES A DIFFERENT PROBLEM.  BROWN'S SHARPEST CRITICISM IS DIRECTED AT
THE DISTRICT COURT'S FINDING THAT CHILDREN'S SHOES CONSTITUTED A SINGLE
LINE OF COMMERCE.  BROWN ARGUES, FOR EXAMPLE, THAT "A LITTLE BOY DOES
NOT WEAR A LITTLE GIRL'S BLACK PATENT LEATHER PUMP" AND THAT "A MALE
BABY CANNOT WEAR A GROWING BOY'S SHOES."  THUS BROWN ARGUES THAT
"INFANTS' AND BABIES' " SHOES, "MISSES' AND CHILDREN'S" SHOES AND
"YOUTHS' AND BOYS'" SHOES SHOULD EACH HAVE BEEN CONSIDERED A SEPARATE
LINE OF COMMERCE.  ASSUMING, ARGUENDO, THAT LITTLE BOYS' SHOES, FOR
EXAMPLE, DO HAVE SUFFICIENT PECULIAR CHARACTERISTICS TO CONSTITUTE ONE
OF THE MARKETS TO BE USED IN ANALYZING THE EFFECTS OF THIS MERGER, WE
DO NOT THINK THAT IN THIS CASE THE DISTRICT COURT WAS REQUIRED TO
EMPLOY FINER "AGE/SEX" DISTINCTIONS THAN THOSE RECOGNIZED BY ITS
CLASSIFICATIONS OF "MEN'S," "WOMEN'S," AND "CHILDREN'S" SHOES.  FURTHER
DIVISION DOES NOT AID US IN ANALYZING THE EFFECTS OF THIS MERGER. 
BROWN MANUFACTURES ABOUT THE SAME PERCENTAGE OF THE NATION'S CHILDREN'S
SHOES (5.8%) AS IT DOES OF THE NATION'S YOUTHS' AND BOYS' SHOES (6.5%),
OF THE NATION'S MISSES' AND CHILDREN'S SHOES (6.0%) AND OF THE NATION'S
INFANTS' AND BABIES' SHOES (4.9%).  SIMILARLY, KINNEY SELLS ABOUT THE
SAME PERCENTAGE OF THE NATION'S CHILDREN'S SHOES (2%) AS IT DOES OF THE
NATION'S YOUTHS' AND BOYS' SHOES (3.1%), OF THE NATION'S MISSES' AND
CHILDREN'S SHOES (1.9%), AND OF THE NATION'S INFANTS' AND BABIES' SHOES
(1.5%).  APPELLANT CAN POINT TO NO ADVANTAGE IT WOULD ENJOY WERE FINER
DIVISIONS THAN THOSE CHOSEN BY THE DISTRICT COURT EMPLOYED.  BROWN
MANUFACTURES SIGNIFICANT, COMPARABLE QUANTITIES OF VIRTUALLY EVERY TYPE
OF NONRUBBER MEN'S, WOMEN'S, AND CHILDREN'S SHOES, AND KINNEY SELLS
SUCH QUANTITIES OF VIRTUALLY EVERY TYPE OF MEN'S, WOMEN'S, AND
CHILDREN'S SHOES.  THUS, WHETHER CONSIDERED SEPARATELY OR TOGETHER, THE
PICTURE OF THIS MERGER IS THE SAME.  WE, THEREFORE, AGREE WITH THE
DISTRICT COURT'S CONCLUSION THAT IN THE SETTING OF THIS CASE TO
SUBDIVIDE THE SHOE MARKET FURTHER ON THE BASIS OF "AGE/SEX"
DISTINCTIONS WOULD BE "IMPRACTICAL" AND "UNWARRANTED." 

THE GEOGRAPHIC MARKET. 

WE AGREE WITH THE PARTIES AND THE DISTRICT COURT THAT INSOFAR AS THE
VERTICAL ASPECT OF THIS MERGER IS CONCERNED, THE RELEVANT GEOGRAPHIC
MARKET IS THE ENTIRE NATION.  THE RELATIONSHIPS OF PRODUCT VALUE, BULK,
WEIGHT AND CONSUMER DEMAND ENABLE MANUFACTURERS TO DISTRIBUTE THEIR
SHOES ON A NATIONWIDE BASIS, AS BROWN AND KINNEY, IN FACT, DO.  THE
ANTICOMPETITIVE EFFECTS OF THE MERGER ARE TO BE MEASURED WITHIN THIS
RANGE OF DISTRIBUTION. 

THE PROBABLE EFFECT OF THE MERGER. 

ONCE THE AREA OF EFFECTIVE COMPETITION AFFECTED BY A VERTICAL
ARRANGEMENT HAS BEEN DEFINED, AN ANALYSIS MUST BE MADE TO DETERMINE IF
THE EFFECT OF THE ARRANGEMENT "MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION, OR TO TEND TO CREATE A MONOPOLY" IN THIS MARKET. 

SINCE THE DIMINUTION OF THE VIGOR OF COMPETITION WHICH MAY STEM FROM
A VERTICAL ARRANGEMENT RESULTS PRIMARILY FROM A FORECLOSURE OF A SHARE
OF THE MARKET OTHERWISE OPEN TO COMPETITORS, AN IMPORTANT CONSIDERATION
IN DETERMINING WHETHER THE EFFECT OF A VERTICAL ARRANGEMENT "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY"
IS THE SIZE OF THE SHARE OF THE MARKET FORECLOSED.  HOWEVER, THIS
FACTOR WILL SELDOM BE DETERMINATIVE.  IF THE SHARE OF THE MARKET
FORECLOSED IS SO LARGE THAT IT APPROACHES MONOPOLY PROPORTIONS, THE
CLAYTON ACT WILL, OF COURSE, HAVE BEEN VIOLATED; BUT THE ARRANGEMENT
WILL ALSO HAVE RUN AFOUL OF THE SHERMAN ACT.  (FN45)  AND THE
LEGISLATIVE HISTORY OF SEC. 7 INDICATES CLEARLY THAT THE TESTS FOR
MEASURING THE LEGALITY OF ANY PARTICULAR ECONOMIC ARRANGEMENT UNDER THE
CLAYTON ACT ARE TO BE LESS STRINGENT THAN THOSE USED IN APPLYING THE
SHERMAN ACT.  (FN46)  ON THE OTHER HAND, FORECLOSURE OF A DE MINIMIS
SHARE OF THE MARKET WILL NOT TEND "SUBSTANTIALLY TO LESSEN
COMPETITION." 

BETWEEN THESE EXTREMES, IN CASES SUCH AS THE ONE BEFORE US, IN WHICH
THE FORECLOSURE IS NEITHER OF MONOPOLY NOR DE MINIMIS PROPORTIONS, THE
PERCENTAGE OF THE MARKET FORECLOSED BY THE VERTICAL ARRANGEMENT CANNOT
ITSELF BE DECISIVE.  IN SUCH CASES, IT BECOMES NECESSARY TO UNDERTAKE
AN EXAMINATION OF VARIOUS ECONOMIC AND HISTORICAL FACTORS IN ORDER TO
DETERMINE WHETHER THE ARRANGEMENT UNDER REVIEW IS OF THE TYPE CONGRESS
SOUGHT TO PROSCRIBE.  (FN47)    A MOST IMPORTANT SUCH FACTOR TO EXAMINE
IS THE VERY NATURE AND PURPOSE OF THE ARRANGEMENT.  (FN48)  CONGRESS
NOT ONLY INDICATED THAT "THE TESTS OF ILLEGALITY (UNDER SEC. 7) ARE
INTENDED TO BE SIMILAR TO THOSE WHICH THE COURTS HAVE APPLIED IN
INTERPRETING THE SAME LANGUAGE AS USED IN OTHER SECTIONS OF THE CLAYTON
ACT," (FN49) BUT ALSO CHOSE FOR SEC. 7 LANGUAGE VIRTUALLY IDENTICAL TO
THAT OF SEC. 3 OF THE CLAYTON ACT, 15 U.S.C.  SEC. 14, WHICH HAD BEEN
INTERPRETED BY THIS COURT TO REQUIRE AN EXAMINATION OF THE
INTERDEPENDENCE OF THE MARKET SHARE FORECLOSED BY, AND THE ECONOMIC
PURPOSE OF, THE VERTICAL ARRANGEMENT.  THUS, FOR EXAMPLE, IF A
PARTICULAR VERTICAL ARRANGEMENT, CONSIDERED UNDER SEC. 3, APPEARS TO BE
A LIMITED TERM EXCLUSIVE-DEALING CONTRACT, THE MARKET FORECLOSURE MUST
GENERALLY BE SIGNIFICANTLY GREATER THAN IF THE ARRANGEMENT IS A TYING
CONTRACT BEFORE THE ARRANGEMENT WILL BE HELD TO HAVE VIOLATED THE ACT. 
COMPARE TAMPA ELECTRIC CO. V. NASHVILLE COAL CO., 365 U.S. 320, AND
STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, SUPRA, WITH
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392.  (FN50)  THE
REASON FOR THIS IS READILY DISCERNIBLE.  THE USUAL TYING CONTRACT
FORCES THE CUSTOMER TO TAKE A PRODUCT OR BRAND HE DOES NOT NECESSARILY
WANT IN ORDER TO SECURE ONE WHICH HE DOES DESIRE.  BECAUSE SUCH AN
ARRANGEMENT IS INHERENTLY ANTICOMPETITIVE, WE HAVE HELD THAT ITS USE BY
AN ESTABLISHED COMPANY IS LIKELY "SUBSTANTIALLY TO LESSEN COMPETITION"
ALTHOUGH ONLY A RELATIVELY SMALL AMOUNT OF COMMERCE IS AFFECTED. 
INTERNATIONAL SALT CO. V. UNITED STATES, SUPRA.  THUS, UNLESS THE TYING
DEVICE IS EMPLOYED BY A SMALL COMPANY IN AN ATTEMPT TO BREAK INTO A
MARKET, CF. HARLEY-DAVIDSON MOTOR CO., 50 F.T.C. 1047, 1066, THE USE OF
A TYING DEVICE CAN RARELY (FN51) BE HARMONIZED WITH THE STRICTURES OF
THE ANTITRUST LAWS, WHICH ARE INTENDED PRIMARILY TO PRESERVE AND
STIMULATE COMPETITION.  SEE STANDARD OIL CO. OF CALIFORNIA V. UNITED
STATES, SUPRA, AT 305-306.  ON THE OTHER HAND, REQUIREMENT CONTRACTS
ARE FREQUENTLY NEGOTIATED AT THE BEHEST OF THE CUSTOMER WHO HAS CHOSEN
THE PARTICULAR SUPPLIER AND HIS PRODUCT UPON THE BASIS OF COMPETITIVE
MERIT.  SEE, E.G., TAMPA ELECTRIC CO. V. NASHVILLE COAL CO., SUPRA.  OF
COURSE, THE FACT THAT REQUIREMENT CONTRACTS ARE NOT INHERENTLY
ANTICOMPETITIVE WILL NOT SAVE A PARTICULAR AGREEMENT IF, IN FACT, IT IS
LIKELY "SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A
MONOPOLY."  E.G., STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES,
SUPRA.  YET A REQUIREMENT CONTRACT MAY ESCAPE CENSURE IF ONLY A SMALL
SHARE OF THE MARKET IS INVOLVED, IF THE PURPOSE OF THE AGREEMENT IS TO
INSURE TO THE CUSTOMER A SUFFICIENT SUPPLY OF A COMMODITY VITAL TO THE
CUSTOMER'S TRADE OR TO INSURE TO THE SUPPLIER A MARKET FOR HIS OUTPUT
AND IF THERE IS NO TREND TOWARD CONCENTRATION IN THE INDUSTRY.  TAMPA
ELECTRIC CO. V. NASHVILLE COAL CO., SUPRA.  SIMILAR CONSIDERATIONS ARE
PERTINENT TO A JUDGMENT UNDER SEC. 7 OF THE ACT. 

THE IMPORTANCE WHICH CONGRESS ATTACHED TO ECONOMIC PURPOSE IS FURTHER
DEMONSTRATED BY THE SENATE AND HOUSE REPORTS ON H.R. 2734, WHICH EVINCE
AN INTENTION TO PRESERVE THE "FAILING COMPANY" DOCTRINE OF
INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, 280 U.S. 291.  (FN52)
SIMILARLY, CONGRESS FORESAW THAT THE MERGER OF TWO LARGE COMPANIES OR A
LARGE AND A SMALL COMPANY MIGHT VIOLATE THE CLAYTON ACT WHILE THE
MERGER OF TWO SMALL COMPANIES MIGHT NOT, ALTHOUGH THE SHARE OF THE
MARKET FORECLOSED BE IDENTICAL, IF THE PURPOSE OF THE SMALL COMPANIES
IS TO ENABLE THEM IN COMBINATION TO COMPETE WITH LARGER CORPORATIONS
DOMINATING THE MARKET.  (FN53) 

THE PRESENT MERGER INVOLVED NEITHER SMALL COMPANIES NOR FAILING
COMPANIES.  IN 1955, THE DATE OF THIS MERGER, BROWN WAS THE FOURTH
LARGEST MANUFACTURER IN THE SHOE INDUSTRY WITH SALES OF APPROXIMATELY
25 MILLION PAIRS OF SHOES AND ASSETS OF OVER $72,000,000 WHILE KINNEY
HAD SALES OF ABOUT 8 MILLION PAIRS OF SHOES AND ASSETS OF ABOUT
$18,000,000.  NOT ONLY WAS BROWN ONE OF THE LEADING MANUFACTURERS OF
MEN'S, WOMEN'S, AND CHILDREN'S SHOES, BUT KINNEY, WITH OVER 350 RETAIL
OUTLETS, OWNED AND OPERATED THE LARGEST INDEPENDENT CHAIN OF FAMILY
SHOE STORES IN THE NATION.  THUS, IN THIS INDUSTRY, NO MERGER BETWEEN A
MANUFACTURER AND AN INDENPENDENT RETAILER COULD INVOLVE A LARGER
POTENTIAL MARKET FORECLOSURE.  MOREOVER, IT IS APPARENT BOTH FROM PAST
BEHAVIOR OF BROWN AND FROM THE TESTIMONY OF BROWN'S PRESIDENT, (FN54)
THAT BROWN WOULD USE ITS OWNERSHIP OF KINNEY TO FORCE BROWN SHOES INTO
KINNEY STORES.  THUS, IN OPERATION THIS VERTICAL ARRANGEMENT WOULD BE
QUITE ANALOGOUS TO ONE INVOLVING A TYING CLAUSE.  (FN55) 

ANOTHER IMPORTANT FACTOR TO CONSIDER IS THE TREND TOWARD
CONCENTRATION IN THE INDUSTRY.  (FN56) IT IS TRUE, OF COURSE, THAT THE
STATUTE PROHIBITS A GIVEN MERGER ONLY IF THE EFFECT OF THAT MERGER MAY
BE SUBSTANTIALLY TO LESSEN COMPETITION.  (FN57)  BUT THE VERY WORDING
OF SEC. 7 REQUIRES A PROGNOSIS OF THE PROBABLE FUTURE EFFECT OF THE
MERGER.  (FN58) 

THE EXISTENCE OF A TREND TOWARD VERTICAL INTEGRATION, WHICH THE
DISTRICT COURT FOUND, IS WELL SUBSTANTIATED BY THE RECORD.  MOREOVER,
THE COURT FOUND A TENDENCY OF THE ACQUIRING MANUFACTURERS TO BECOME
INCREASINGLY IMPORTANT SOURCES OF SUPPLY FOR THEIR ACQUIRED OUTLETS. 
THE NECESSARY COROLLARY OF THESE TRENDS IS THE FORECLOSURE OF
INDEPENDENT MANUFACTURERS FROM MARKETS OTHERWISE OPEN TO THEM.   AND
BECAUSE THESE TRENDS ARE NOT THE PRODUCT OF ACCIDENT BUT ARE RATHER THE
RESULT OF DELIBERATE POLICIES OF BROWN AND OTHER LEADING SHOE
MANUFACTURERS, ACCOUNT MUST BE TAKEN OF THESE FACTS IN ORDER TO PREDICT
THE PROBABLE FUTURE CONSEQUENCES OF THIS MERGER.  IT IS AGAINST THIS
BACKGROUND OF CONTINUING CONCENTRATION THAT THE PRESENT MERGER MUST BE
VIEWED. 

BROWN ARGUES, HOWEVER, THAT THE SHOE INDUSTRY IS AT PRESENT COMPOSED
OF A LARGE NUMBER OF MANUFACTURERS AND RETAILERS, AND THAT THE INDUSTRY
IS DYNAMICALLY COMPETITIVE.  BUT REMAINING VIGOR CANNOT IMMUNIZE A
MERGER IF THE TREND IN THAT INDUSTRY IS TOWARD OLIGOPOLY.  SEE
PILLSBURY MILLS, INC., 50 F.T.C. 555, 573.  IT IS THE PROBABLE EFFECT
OF THE MERGER UPON THE FUTURE AS WELL AS THE PRESENT WHICH THE CLAYTON
ACT COMMANDS THE COURTS AND THE COMMISSION TO EXAMINE.  (FN59) 

MOREOVER, AS WE HAVE REMARKED ABOVE, NOT ONLY MUST WE CONSIDER THE
PROBABLE EFFECTS OF THE MERGER UPON THE ECONOMICS OF THE PARTICULAR
MARKETS AFFECTED BUT ALSO WE MUST CONSIDER ITS PROBABLE EFFECTS UPON
THE ECONOMIC WAY OF LIFE SOUGHT TO BE PRESERVED BY CONGRESS.  (FN60)
CONGRESS WAS DESIROUS OF PREVENTING THE FORMATION OF FURTHER
OLIGOPOLIES WITH THEIR ATTENDANT ADVERSE EFFECTS UPON LOCAL CONTROL OF
INDUSTRY AND UPON SMALL BUSINESS.  WHERE AN INDUSTRY WAS COMPOSED OF
NUMEROUS INDEPENDENT UNITS, CONGRESS APPEARED ANXIOUS TO PRESERVE THIS
STRUCTURE.  THE SENATE REPORT, QUOTING WITH APPROVAL FROM THE FEDERAL
TRADE COMMISSION'S 1948 REPORT ON THE MERGER MOVEMENT, STATES
EXPLICITLY THAT AMENDED SEC. 7 IS ADDRESSED, INTER ALIA, TO THE
FOLLOWING PROBLEM: 

"UNDER THE SHERMAN ACT, AN ACQUISITION IS UNLAWFUL IF IT CREATES A
MONOPOLY OR CONSTITUTES AN ATTEMPT TO MONOPOLIZE.  IMMINENT MONOPOLY
MAY APPEAR WHEN ONE LARGE CONCERN ACQUIRES ANOTHER, BUT IT IS UNLIKELY
TO BE PERCEIVED IN A SMALL ACQUISITION BY A LARGE ENTERPRISE.  AS A
LARGE CONCERN GROWS THROUGH A SERIES OF SUCH SMALL ACQUISITIONS, ITS
ACCRETIONS OF POWER ARE INDIVIDUALLY SO MINUTE AS TO MAKE IT DIFFICULT
TO USE THE SHERMAN ACT TEST AGAINST THEM  ...  . 

"WHERE SEVERAL LARGE ENTERPRISES ARE EXTENDING THEIR POWER BY
SUCCESSIVE SMALL ACQUISITIONS, THE CUMULATIVE EFFECT OF THEIR PURCHASES
MAY BE TO CONVERT AN INDUSTRY FROM ONE OF INTENSE COMPETITION AMONG
MANY ENTERPRISES TO ONE IN WHICH THREE OR FOUR LARGE CONCERNS PRODUCE
THE ENTIRE SUPPLY."  S. REP. NO. 1775, 81ST CONG., 2D SESS.  5.  (FN61)
AND SEE H.R. REP NO. 1191, 81ST CONG., 1ST SESS. 8. 

THE DISTRICT COURT'S FINDINGS, AND THE RECORD FACTS, MANY OF THEM SET
FORTH IN PART I OF THIS OPINION, CONVINCE US THAT THE SHOE INDUSTRY IS
BEING SUBJECTED TO JUST SUCH A CUMULATIVE SERIES OF VERTICAL MERGERS
WHICH, IF LEFT UNCHECKED, WILL BE LIKELY "SUBSTANTIALLY TO LESSEN
COMPETITION." 

WE REACH THIS CONCLUSION BECAUSE THE TREND TOWARD VERTICAL
INTEGRATION IN THE SHOE INDUSTRY, WHEN COMBINED WITH BROWN'S AVOWED
POLICY OF FORCING ITS OWN SHOES UPON ITS RETAIL SUBSIDIARIES, MAY
FORECLOSE COMPETITION FROM A SUBSTANTIAL SHARE OF THE MARKETS FOR
MEN'S, WOMEN'S, AND CHILDREN'S SHOES, WITHOUT PRODUCING ANY
COUNTERVAILING COMPETITIVE, ECONOMIC, OR SOCIAL ADVANTAGES. 

                                        V.

       THE HORIZONTAL ASPECTS OF THE MERGER. 

AN ECONOMIC ARRANGEMENT BETWEEN COMPANIES PERFORMING SIMILAR
FUNCTIONS IN THE PRODUCTION OR SALE OF COMPARABLE GOODS OR SERVICES IS
CHARACTERIZED AS "HORIZONTAL."  THE EFFECT ON COMPETITION OF SUCH AN
ARRANGEMENT DEPENDS, OF COURSE, UPON ITS CHARACTER AND SCOPE.  THUS,
ITS VALIDITY IN THE FACE OF THE ANTITRUST LAWS WILL DEPEND UPON SUCH
FACTORS AS: THE RELATIVE SIZE AND NUMBER OF THE PARTIES TO THE
ARRANGEMENT; WHETHER IT ALLOCATES SHARES OF THE MARKET AMONG THE
PARTIES; WHETHER IT FIXES PRICES AT WHICH THE PARTIES WILL SELL THEIR
PRODUCT; OR WHETHER IT ABSORBS OR INSULATES COMPETITORS.   (FN62)
WHERE THE ARRANGEMENT EFFECTS A HORIZONTAL MERGER BETWEEN COMPANIES
OCCUPYING THE SAME PRODUCT AND GEOGRAPHIC MARKET, WHATEVER COMPETITION
PREVIOUSLY MAY HAVE EXISTED IN THAT MARKET BETWEEN THE PARTIES TO THE
MERGER IS ELIMINATED.  SECTION 7 OF THE CLAYTON ACT, PRIOR TO ITS
AMENDMENT, FOCUSED UPON THIS ASPECT OF HORIZONTAL COMBINATIONS BY
PROSCRIBING ACQUISITIONS WHICH MIGHT RESULT IN A LESSENING OF
COMPETITION BETWEEN THE ACQUIRING AND THE ACQUIRED COMPANIES.  (FN63)
THE 1950 AMENDMENTS MADE PLAIN CONGRESS' INTENT THAT THE VALIDITY OF
SUCH COMBINATIONS WAS TO BE GAUGED ON A BROADER SCALE:  THEIR EFFECT ON
COMPETITION GENERALLY IN AN ECONOMICALLY SIGNIFICANT MARKET. 

THUS, AGAIN, THE PROPER DEFINITION OF THE MARKET IS A "NECESSARY
PREDICATE" TO AN EXAMINATION OF THE COMPETITION THAT MAY BE AFFECTED BY
THE HORIZONTAL ASPECTS OF THE MERGER.  THE ACQUISITION OF KINNEY BY
BROWN RESULTED IN A HORIZONTAL COMBINATION AT BOTH THE MANUFACTURING
AND RETAILING LEVELS OF THEIR BUSINESSES.  ALTHOUGH THE DISTRICT COURT
FOUND THAT THE MERGER OF BROWN'S AND KINNEY'S MANUFACTURING FACILITIES
WAS ECONOMICALLY TOO INSIGNIFICANT TO COME WITHIN THE PROHIBITIONS OF
THE CLAYTON ACT, THE GOVERNMENT HAS NOT APPEALED FROM THIS PORTION OF
THE LOWER COURT'S DECISION.  THEREFORE, WE HAVE NO OCCASION TO EXPRESS
OUR VIEWS WITH RESPECT TO THAT FINDING.  ON THE OTHER HAND, APPELLANT
DOES CONTEST THE DISTRICT COURT'S FINDING THAT THE MERGER OF THE
COMPANIES' RETAIL OUTLETS MAY TEND SUBSTANTIALLY TO LESSEN
COMPETITION. 

THE PRODUCT MARKET. 

SHOES ARE SOLD IN THE UNITED STATES IN RETAIL SHOE STORES AND IN SHOE
DEPARTMENTS OF GENERAL STORES.  THESE OUTLETS SELL:  (1) MEN'S SHOES,
(2) WOMEN'S SHOES, (3) WOMEN'S OR CHILDREN'S SHOES, OR (4) MEN'S,
WOMEN'S OR CHILDREN'S SHOES.  PRIOR TO THE MERGER, BOTH BROWN AND
KINNEY SOLD THEIR SHOES IN COMPETITION WITH ONE ANOTHER THROUGH THE
ENUMERATED KINDS OF OUTLETS CHARACTERISTIC OF THE INDUSTRY. 

IN PART IV OF THIS OPINION WE HOLD THAT THE DISTRICT COURT CORRECTLY
DEFINED MEN'S, WOMEN'S, AND CHILDREN'S SHOES AS THE RELEVANT LINES OF
COMMERCE IN WHICH TO ANALYZE THE VERTICAL ASPECTS OF THE MERGER.  FOR
THE REASONS THERE STATED WE ALSO HOLD THAT THE SAME LINES OF COMMERCE
ARE APPROPRIATE FOR CONSIDERING THE HORIZONTAL ASPECTS OF THE MERGER. 

THE GEOGRAPHIC MARKET. 

THE CRITERIA TO BE USED IN DETERMINING THE APPROPRIATE GEOGRAPHIC
MARKET ARE ESSENTIALLY SIMILAR TO THOSE USED TO DETERMINE THE RELEVANT
PRODUCT MARKET.  SEE S. REP. NO. 1775, 81ST CONG., 2D SESS. 5-6; UNITED
STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, 593.  MOREOVER,
JUST AS A PRODUCT SUBMARKET MAY HAVE SEC. 7 SIGNIFICANCE AS THE PROPER
"LINE OF COMMERCE," SO MAY A GEOGRAPHIC SUBMARKET BE CONSIDERED THE
APPROPRIATE "SECTION OF THE COUNTRY."  ERIE SAND & GRAVEL CO. V.
FEDERAL TRADE COMM'N, 291 F.2D 279, 283 (C.A. 3D CIR.); UNITED STATES
V. BETHLEHEM STEEL CORP., 168 F. SUPP. 576, 595-603 (D.C.S.D.N.Y.). 
CONGRESS PRESCRIBED A PRAGMATIC, FACTUAL APPROACH TO THE DEFINITION OF
THE RELEVANT MARKET AND NOT A FORMAL, LEGALISTIC ONE.  THE GEOGRAPHIC
MARKET SELECTED MUST, THEREFORE, BOTH "CORRESPOND TO THE COMMERCIAL
REALITIES" (FN64) OF THE INDUSTRY AND BE ECONOMICALLY SIGNIFICANT. 
THUS, ALTHOUGH THE GEOGRAPHIC MARKET IN SOME INSTANCES MAY ENCOMPASS
THE ENTIRE NATION, UNDER OTHER CIRCUMSTANCES IT MAY BE AS SMALL AS A
SINGLE METROPOLITAN AREA.  UNITED STATES V. COLUMBIA PICTURES CORP.,
189 F. SUPP. 153, 193-194 (D.C.S.D.N.Y.); UNITED STATES V. MARYLAND &
VIRGINIA MILK PRODUCERS ASSN., 167 F. SUPP. 799 (D.C.D.C.), AFFIRMED,
362 U.S. 458.  THE FACT THAT TWO MERGING FIRMS HAVE COMPETED DIRECTLY
ON THE HORIZONTAL LEVEL IN BUT A FRACTION OF THE GEOGRAPHIC MARKETS IN
WHICH EITHER HAS OPERATED, DOES NOT, IN ITSELF, PLACE THEIR MERGER
OUTSIDE THE SCOPE OF SEC. 7.  THAT SECTION SPEAKS OF "ANY  ...  SECTION
OF THE COUNTRY," AND IF ANTICOMPETITIVE EFFECTS OF A MERGER ARE
PROBABLE IN "ANY" SIGNIFICANT MARKET, THE MERGER - AT LEAST TO THAT
EXTENT - IS PROSCRIBED.  (FN65)  THE PARTIES DO NOT DISPUTE THE
FINDINGS OF THE DISTRICT COURT THAT THE NATION AS A WHOLE IS THE
RELEVANT GEOGRAPHIC MARKET FOR MEASURING THE ANTICOMPETITIVE EFFECTS OF
THE MERGER VIEWED VERTICALLY OR OF THE HORIZONTAL MERGER OF BROWN'S AND
KINNEY'S MANUFACTURING FACILITIES.  AS TO THE RETAIL LEVEL, HOWEVER,
THEY DISAGREE.    THE DISTRICT COURT FOUND THAT THE EFFECTS OF THIS
ASPECT OF THE MERGER MUST BE ANALYZED IN EVERY CITY WITH A POPULATION
EXCEEDING 10,000 AND ITS IMMEDIATE CONTIGUOUS SURROUNDING TERRITORY IN
WHICH BOTH BROWN AND KINNEY SOLD SHOES AT RETAIL THROUGH STORES THEY
EITHER OWNED OR CONTROLLED.  (FN66) BY THIS DEFINITION OF THE
GEOGRAPHIC MARKET, LESS THAN ONE-HALF OF ALL THE CITIES IN WHICH EITHER
BROWN OR KINNEY SOLD SHOES THROUGH SUCH OUTLETS ARE REPRESENTED.   THE
APPELLANT RECOGNIZES THAT IF THE DISTRICT COURT'S CHARACTERIZATION OF
THE RELEVANT MARKET IS PROPER, THE NUMBER OF MARKETS IN WHICH BOTH
BROWN AND KINNEY HAVE OUTLETS IS SUFFICIENTLY NUMEROUS SO THAT THE
VALIDITY OF THE ENTIRE MERGER IS PROPERLY JUDGED BY TESTING ITS EFFECTS
IN THOSE MARKETS.  HOWEVER, IT IS APPELLANT'S CONTENTION THAT THE AREAS
OF EFFECTIVE COMPETITION IN SHOE RETAILING WERE IMPROPERLY DEFINED BY
THE DISTRICT COURT.  IT CLAIMS THAT SUCH AREAS SHOULD, IN SOME CASES,
BE DEFINED SO AS TO INCLUDE ONLY THE CENTRAL BUSINESS DISTRICTS OF
LARGE CITIES, AND IN OTHERS, SO AS TO ENCOMPASS THE "STANDARD
METROPOLITAN AREAS" WITHIN WHICH SMALLER COMMUNITIES ARE FOUND.  IT
ARGUES THAT ANY TEST FAILING TO DISTINGUISH BETWEEN THESE COMPETITIVE
SITUATIONS IS IMPROPER. 

WE BELIEVE, HOWEVER, THAT THE RECORD FULLY SUPPORTS THE DISTRICT
COURT'S FINDINGS THAT SHOE STORES IN THE OUTSKIRTS OF CITIES COMPETE
EFFECTIVELY WITH STORES IN CENTRAL DOWNTOWN AREAS, AND THAT WHILE THERE
IS UNDOUBTEDLY SOME COMMERCIAL INTERCOURSE BETWEEN SMALLER COMMUNITIES
WITHIN A SINGLE "STANDARD METROPOLITAN AREA," THE MOST INTENSE AND
IMPORTANT COMPETITION IN RETAIL SALES WILL BE CONFINED TO STORES WITHIN
THE PARTICULAR COMMUNITIES IN SUCH AN AREA AND THEIR IMMEDIATE
ENVIRONS.  (FN67) 

WE THEREFORE AGREE THAT THE DISTRICT COURT PROPERLY DEFINED THE
RELEVANT GEOGRAPHIC MARKETS IN WHICH TO ANALYZE THIS MERGER AS THOSE
CITIES WITH A POPULATION EXCEEDING 10,000 AND THEIR ENVIRONS IN WHICH
BOTH BROWN AND KINNEY RETAILED SHOES THROUGH THEIR OWN OUTLETS.  SUCH
MARKETS ARE LARGE ENOUGH TO INCLUDE THE DOWNTOWN SHOPS AND SUBURBAN
SHOPPING CENTERS IN AREAS CONTIGUOUS TO THE CITY, WHICH ARE THE
IMPORTANT COMPETITIVE FACTORS, AND YET ARE SMALL ENOUGH TO EXCLUDE
STORES BEYOND THE IMMEDIATE ENVIRONS OF THE CITY, WHICH ARE OF LITTLE
COMPETITIVE SIGNIFICANCE. 

THE PROBABLE EFFECT OF THE MERGER. 

HAVING DELINEATED THE PRODUCT AND GEOGRAPHIC MARKETS WITHIN WHICH THE
EFFECTS OF THIS MERGER ARE TO BE MEASURED, WE TURN TO AN EXAMINATION OF
THE DISTRICT COURT'S FINDING THAT AS A RESULT OF THE MERGER COMPETITION
IN THE RETAILING OF MEN'S, WOMEN'S AND CHILDREN'S SHOES MAY BE LESSENED
SUBSTANTIALLY IN THOSE CITIES IN WHICH BOTH BROWN AND KINNEY STORES ARE
LOCATED.  WE NOTE, INITIALLY, THAT APPELLANT CHALLENGES THIS FINDING ON
A NUMBER OF GROUNDS OTHER THAN THOSE DISCUSSED ABOVE AND ON GROUNDS
INDEPENDENT OF THE CRITICAL QUESTION OF WHETHER COMPETITION MAY, IN
FACT, BE LESSENED.  THUS, BROWN OBJECTS THAT THE DISTRICT COURT DID NOT
EXAMINE THE COMPETITIVE PICTURE IN EACH LINE OF COMMERCE AND EACH
COURT ERRED IN FAILING TO ENTER FINDINGS WITH RESPECT TO EACH RELEVANT
CITY ASSESSING THE ANTICOMPETITIVE EFFECT OF THE MERGER ON THE RETAIL
SALE OF, FOR EXAMPLE, MEN'S SHOES IN COUNCIL BLUFFS, MEN'S SHOES IN
TEXAS CITY, WOMEN'S SHOES IN TEXAS CITY AND CHILDREN'S SHOES IN ST.
PAUL.  EVEN ASSUMING A REPRESENTATIVE SAMPLE COULD PROPERLY BE USED,
BROWN ALSO OBJECTS THAT THE DISTRICT COURT'S DETAILED ANALYSIS OF
COMPETITION IN SHOE RETAILING WAS LIMITED TO A SINGLE CITY - ST. LOUIS
A CITY IN WHICH KINNEY DID NOT OPERATE.  THE APPELLANT SAYS THIS
ANALYSIS COULD NOT BE SUFFICIENTLY REPRESENTATIVE TO ESTABLISH A
STANDARD IMAGE OF THE SHOE TRADE WHICH COULD BE APPLIED TO EACH OF THE
MORE THAN 100 CITIES IN WHICH BROWN AND KINNEY SOLD SHOES, PARTICULARLY
AS SOME OF THOSE CITIES WERE MUCH SMALLER THAN ST. LOUIS, OTHERS WERE
LARGER, SOME WERE IN DIFFERENT CLIMATES AND OTHERS WERE IN AREAS HAVING
DIFFERENT MEDIAN PER CAPITA INCOMES. 

HOWEVER, WE BELIEVE THE RECORD IS ADEQUATE TO SUPPORT THE FINDINGS OF
THE DISTRICT COURT.  WHILE IT IS TRUE THAT THE COURT CONCENTRATED ITS
ATTENTION ON THE STRUCTURE OF COMPETITION IN THE CITY IN WHICH IT SAT
AND AS TO WHICH DETAILED EVIDENCE WAS MOST READILY AVAILABLE, IT ALSO
HEARD WITNESSES FROM NO LESS THAN 40 OTHER CITIES IN WHICH THE PARTIES
TO THE MERGER OPERATED.  THE COURT WAS CAREFUL TO POINT OUT THAT IT WAS
ON THE BASIS OF ALL THE EVIDENCE THAT IT REACHED ITS CONCLUSIONS
CONCERNING THE BOUNDARIES OF THE RELEVANT MARKETS AND THE MERGER'S
EFFECTS ON COMPETITION WITHIN THEM.  WE RECOGNIZE THAT VARIATIONS OF
SIZE, CLIMATE AND WEALTH AS ENUMERATED BY BROWN EXIST IN THE RELEVANT
MARKETS.  HOWEVER, WE AGREE WITH THE COURT BELOW THAT THE MARKETS WITH
RESPECT TO WHICH EVIDENCE WAS RECEIVED PROVIDE A FAIR SAMPLING OF ALL
THE AREAS IN WHICH THE IMPACT OF THIS MERGER IS TO BE MEASURED.  THE
APPELLANT HAS NOT SHOWN HOW THE VARIABLES IT HAS MENTIONED COULD AFFECT
THE STRUCTURE OF COMPETITION WITHIN ANY PARTICULAR MARKET SO AS TO
REQUIRE A CHANGE IN THE CONCLUSIONS DRAWN BY THE DISTRICT COURT.  EACH
COMPETITOR WITHIN A GIVEN MARKET IS EQUALLY AFFECTED BY THESE FACTORS,
EVEN THOUGH THE CITY IN WHICH HE DOES BUSINESS MAY DIFFER FROM ST.
LOUIS IN SIZE, CLIMATE OR WEALTH.  THUS, WE BELIEVE THE DISTRICT COURT
PROPERLY REACHED ITS CONCLUSIONS ON THE BASIS OF THE EVIDENCE AVAILABLE
TO IT.  THERE IS NO REASON TO PROTRACT ALREADY COMPLEX ANTITRUST
LITIGATION BY DETAILED ANALYSES OF PERIPHERAL ECONOMIC FACTS, IF THE
BASIC ISSUES OF THE CASE MAY BE DETERMINED THROUGH STUDY OF A FAIR
SAMPLE.  (FN68) 

IN THE CASE BEFORE US, NOT ONLY WAS A FAIR SAMPLE USED TO DEMONSTRATE
THE SOUNDNESS OF THE DISTRICT COURT'S CONCLUSIONS, BUT EVIDENCE OF
RECORD FULLY SUBSTANTIATES THOSE FINDINGS AS TO EACH RELEVANT MARKET. 
AN ANALYSIS OF UNDISPUTED STATISTICS OF SALES OF SHOES IN THE CITIES IN
WHICH BOTH BROWN AND KINNEY SELL SHOES AT RETAIL, SEPARATED INTO THE
APPROPRIATE LINES OF COMMERCE, PROVIDES A PERSUASIVE FACTUAL FOUNDATION
UPON WHICH THE REQUIRED PROGNOSIS OF THE MERGER'S EFFECTS MAY BE
BUILT.  ALTHOUGH BROWN OBJECTS TO SOME DETAILS IN THE GOVERNMENT'S
COMPUTATIONS USED IN DRAFTING THESE EXHIBITS, APPELLANT CONNOT DENY THE
CORRECTNESS OF THE MORE GENERAL PICTURE THEY REVEAL.  (FN69)  WE HAVE
APPENDED THE EXHIBITS TO THIS OPINION.  THEY SHOW, FOR EXAMPLE, THAT
DURING 1955 IN 32 SEPARATE CITIES, RANGING IN SIZE AND LOCATION FROM
TOPEKA, KANSAS, TO BATAVIA, NEW YORK, AND HOBBS, NEW MEXICO, THE
COMBINED SHARE OF BROWN AND KINNEY SALES OF WOMEN'S SHOES (BY UNIT
VOLUME) EXCEEDED 20%. (FN70)  IN 31 CITIES - SOME THE SAME AS THOSE
USED IN MEASURING THE EFFECT OF THE MERGER IN THE WOMEN'S LINE - THE
COMBINED SHARE OF CHILDREN'S SHOES SALES EXCEEDED 20%; IN 6 CITIES
THEIR SHARE EXCEEDED 40%.  IN DODGE CITY, KANSAS, THEIR COMBINED SHARE
OF THE MARKET FOR WOMEN'S SHOES WAS OVER 57%; THEIR SHARE OF THE
CHILDREN'S SHOE MARKET IN THAT CITY WAS 49%.  IN THE 7 CITIES IN WHICH
BROWN'S AND KINNEY'S COMBINED SHARES OF THE MARKET FOR WOMEN'S SHOES
WERE GREATEST (RANGING FROM 33% TO 57%) EACH OF THE PARTIES ALONE,
PRIOR TO THE MERGER, HAD CAPTURED SUBSTANTIAL PORTIONS OF THOSE MARKETS
(RANGING FROM 13% TO 34%); THE MERGER INTENSIFIED THIS EXISTING
CONCENTRATION.  IN 118 SEPARATE CITIES THE COMBINED SHARES OF THE
MARKET OF BROWN AND KINNEY IN THE SALE OF ONE OF THE RELEVANT LINES OF
COMMERCE EXCEEDED 5%.  IN 47 CITIES, THEIR SHARE EXCEEDED 5% IN ALL
THREE LINES. 

THE MARKET SHARE WHICH COMPANIES MAY CONTROL BY MERGING IS ONE OF THE
MOST IMPORTANT FACTORS TO BE CONSIDERED WHEN DETERMINING THE PROBABLE
EFFECTS OF THE COMBINATION ON EFFECTIVE COMPETITION IN THE RELEVANT
MARKET.  (FN71)  IN AN INDUSTRY AS FRAGMENTED AS SHOE RETAILING, THE
CONTROL OF SUBSTANTIAL SHARES OF THE TRADE IN A CITY MAY HAVE IMPORTANT
EFFECTS ON COMPETITION.  IF A MERGER ACHIEVING 5% CONTROL WERE NOW
APPROVED, WE MIGHT BE REQUIRED TO APPROVE FUTURE MERGER EFFORTS BY
BROWN'S COMPETITORS SEEKING SIMILAR MARKET SHARES.  THE OLIGOPOLY
CONGRESS SOUGHT TO AVOID WOULD THEN BE FURTHERED AND IT WOULD BE
DIFFICULT TO DISSOLVE THE COMBINATIONS PREVIOUSLY APPROVED. 
FURTHERMORE, IN THIS FRAGMENTED INDUSTRY, EVEN IF THE COMBINATION
CONTROLS BUT A SMALL SHARE OF A PARTICULAR MARKET, THE FACT THAT THIS
SHARE IS HELD BY A LARGE NATIONAL CHAIN CAN ADVERSELY AFFECT
COMPETITION.   TESTIMONY IN THE RECORD FROM NUMEROUS INDEPENDENT
RETAILERS, BASED ON THEIR ACTUAL EXPERIENCE IN THE MARKET, DEMONSTRATES
THAT A STRONG, NATIONAL CHAIN OF STORES CAN INSULATE SELECTED OUTLETS
FROM THE VAGARIES OF COMPETITION IN PARTICULAR LOCATIONS AND THAT THE
LARGE CHAINS CAN SET AND ALTER STYLES IN FOOTWEAR TO AN EXTENT THAT
RENDERS THE INDEPENDENTS UNABLE TO MAINTAIN COMPETITIVE INVENTORIES.  A
THIRD SIGNIFICANT ASPECT OF THIS MERGER IS THAT IT CREATES A LARGE
NATIONAL CHAIN WHICH IS INTEGRATED WITH A MANUFACTURING OPERATION.  THE
RETAIL OUTLETS OF INTEGRATED COMPANIES, BY ELIMINATING WHOLESALERS AND
BY INCREASING THE VOLUME OF PURCHASES FROM THE MANUFACTURING DIVISION
OF THE ENTERPRISE, CAN MARKET THEIR OWN BRANDS AT PRICES BELOW THOSE OF
COMPETING INDEPENDENT RETAILERS.  OF COURSE, SOME OF THE RESULTS OF
LARGE INTEGRATED OR CHAIN OPERATIONS ARE BENEFICIAL TO CONSUMERS. 
THEIR EXPANSION IS NOT RENDERED UNLAWFUL BY THE MERE FACT THAT SMALL
INDEPENDENT STORES MAY BE ADVERSELY AFFECTED.  IT IS COMPETITION, NOT
COMPETITORS, WHICH THE ACT PROTECTS.  BUT WE CANNOT FAIL TO RECOGNIZE
CONGRESS' DESIRE TO PROMOTE COMPETITION THROUGH THE PROTECTION OF
VIABLE, SMALL, LOCALLY OWNED BUSINESSES.  CONGRESS APPRECIATED THAT
OCCASIONAL HIGHER COSTS AND PRICES MIGHT RESULT FROM THE MAINTENANCE OF
FRAGMENTED INDUSTRIES AND MARKETS.  IT RESOLVED THESE COMPETING
CONSIDERATIONS IN FAVOR OF DECENTRALIZATION.  WE MUST GIVE EFFECT TO
THAT DECISION. 

OTHER FACTORS TO BE CONSIDERED IN EVALUATING THE PROBABLE EFFECTS OF
A MERGER IN THE RELEVANT MARKET LEND ADDITIONAL SUPPORT TO THE DISTRICT
COURT'S CONCLUSION THAT THIS MERGER MAY SUBSTANTIALLY LESSEN
COMPETITION.  ONE SUCH FACTOR IS THE HISTORY OF TENDENCY TOWARD
CONCENTRATION IN THE INDUSTRY.  (FN72)  AS WE HAVE PREVIOUSLY POINTED
OUT, THE SHOE INDUSTRY HAS, IN RECENT YEARS, BEEN A PRIME EXAMPLE OF
SUCH A TREND.  MOST COMBINATIONS HAVE BEEN BETWEEN MANUFACTURERS AND
RETAILERS, AS EACH OF THE LARGER PRODUCERS HAS SOUGHT TO CAPTURE AN
INCREASING NUMBER OF ASSURED OUTLETS FOR ITS WARES.  ALTHOUGH THESE
MERGERS HAVE BEEN PRIMARILY VERTICAL IN THEIR AIM AND EFFECT, TO THE
EXTENT THAT THEY HAVE BROUGHT EVER GREATER NUMBERS OF RETAIL OUTLETS
WITHIN FEWER AND FEWER HANDS, THEY HAVE HAD AN ADDITIONAL IMPORTANT
IMPACT ON THE HORIZONTAL PLANE.  BY THE MERGER IN THIS CASE, THE
LARGEST SINGLE GROUP OF RETAIL STORES STILL INDEPENDENT OF ONE OF THE
LARGE MANUFACTURERS WAS ABSORBED INTO AN ALREADY SUBSTANTIAL
AGGREGATION OF MORE OR LESS CONTROLLED RETAIL OUTLETS.  AS A RESULT OF
THIS MERGER, BROWN MOVED INTO SECOND PLACE NATIONALLY IN TERMS OF
RETAIL STORES DIRECTLY OWNED.  INCLUDING THE STORES ON ITS FRANCHISE
PLAN, THE MERGER PLACED UNDER BROWN'S CONTROL ALMOST 1,600 SHOE
OUTLETS, OR ABOUT 7.2% OF THE NATION'S RETAIL "SHOE STORES" AS DEFINED
BY THE CENSUS BUREAU, (FN73) AND 2.3% OF THE NATION'S TOTAL RETAIL SHOE
OUTLETS.  (FN74)  WE CANNOT AVOID THE MANDATE OF CONGRESS THAT
TENDENCIES TOWARD CONCENTRATION IN INDUSTRY ARE TO BE CURBED IN THEIR
INCIPIENCY, PARTICULARLY WHEN THOSE TENDENCIES ARE BEING ACCELERATED
THROUGH GIANT STEPS STRIDING ACROSS A HUNDRED CITIES AT A TIME.  IN THE
LIGHT OF THE TRENDS IN THIS INDUSTRY WE AGREE WITH THE GOVERNMENT AND
THE COURT BELOW THAT THIS IS AN APPROPRIATE PLACE AT WHICH TO CALL A
HALT. 

AT THE TIME APPELLANT HAS PRESENTED NO MITIGATING FACTORS, SUCH AS
THE BUSINESS FAILURE OR THE INADEQUATE RESOURCES OF ONE OF THE PARTIES
THAT MAY HAVE PREVENTED IT FROM MAINTAINING ITS COMPETITIVE POSITION,
NOR A DEMONSTRATED NEED FOR COMBINATION TO ENABLE SMALL COMPANIES TO
ENTER INTO A MORE MEANINGFUL COMPETITION WITH THOSE DOMINATING THE
RELEVANT MARKETS.  ON THE BASIS OF THE RECORD BEFORE US, WE BELIEVE THE
GOVERNMENT SUSTAINED ITS BURDEN OF PROOF.  WE HOLD THAT THE DISTRICT
COURT WAS CORRECT IN CONCLUDING THAT THIS MERGER MAY TEND TO LESSEN
COMPETITION SUBSTANTIALLY IN THE RETAIL SALE OF MEN'S, WOMEN'S, AND
CHILDREN'S SHOES IN THE OVERWHELMING MAJORITY OF THOSE CITIES AND THEIR
ENVIRONS IN WHICH BOTH BROWN AND KINNEY SELL THROUGH OWNED OR
CONTROLLED OUTLETS. 

THE JUDGMENT IS AFFIRMED. 

FN1  OF THESE OVER 1,230 OUTLETS UNDER BROWN'S CONTROL AT THE TIME OF
THE FILING OF THE COMPLAINT, BROWN OWNED AND OPERATED OVER 470, WHILE
OVER 570 WERE INDEPENDENTLY OWNED STORES OPERATING UNDER THE BROWN
"FRANCHISE PROGRAM" AND OVER 190 WERE INDEPENDENTLY OWNED OUTLETS
OPERATING UNDER THE "WOHL PLAN."  A STORE OPERATING UNDER THE FRANCHISE
PROGRAM AGREES NOT TO CARRY COMPETING LINES OF SHOES OF OTHER
MANUFACTURERS IN RETURN FOR CERTAIN AID FROM BROWN; A STORE UNDER THE
WOHL PLAN SIMILARLY AGREES TO CONCENTRATE ITS PURCHASES ON LINES WHICH
BROWN SELLS THROUGH WOHL IN RETURN FOR CREDIT AND MERCHANDISING AID. 
SEE NOTE 66, INFRA.  IN ADDITION, BROWN SHOES WERE SOLD THROUGH
NUMEROUS RETAILERS OPERATING ENTIRELY INDEPENDENTLY OF BROWN. 

FN2  "THE GENERAL CONCEPT ADOPTED IN DEFINING A STANDARD METROPOLITAN
AREA IS THAT OF AN INTEGRATED ECONOMIC AREA WITH A LARGE VOLUME OF
DAILY TRAVEL AND COMMUNICATION BETWEEN A CENTRAL CITY OF 50,000
INHABITANTS OR MORE AND THE OUTLYING PARTS OF THE AREA  ...  .  EACH
AREA (EXCEPT IN NEW ENGLAND) CONSISTS OF ONE OR MORE ENTIRE COUNTIES. 
IN NEW ENGLAND, METROPOLITAN AREAS HAVE BEEN DEFINED ON A TOWN BASIS
RATHER THAN A COUNTY BASIS."  II U.S. BUREAU OF THE CENSUS, UNITED
STATES CENSUS OF BUSINESS:  1954, P. 3.    FN3  SEE NOTE 1, SUPRA. 

FN4  U.S. BUREAU OF CENSUS, FACTS FOR INDUSTRY, PRODUCTION, BY KIND
OF FOOTWEAR: 1956 AND 1955, TABLE 1, PRODUCTION SERIES M31A-06,
INTRODUCED AS DEFENDANT'S EXHIBIT MM.  THE TERM "NONRUBBER SHOES"
INCLUDES LEATHER SHOES, SANDALS AND PLAY SHOES, BUT EXCLUDES CANVAS
UPPER, RUBBER-SOLED SHOES, ATHLETIC SHOES AND SLIPPERS.  IBID. 

FN5  THESE FIGURES ARE BASED ON THE 1954 CENSUS OF BUSINESS.  FOR
THAT ENUMERATION, THE CENSUS BUREAU CLASSIFICATION "SHOE STORES"
INCLUDED SEPARATELY OPERATED LEASED SHOE DEPARTMENTS OF GENERAL STORES,
AS DISTINGUISHED FROM THE SHOE DEPARTMENTS OF GENERAL STORES OPERATED
ONLY AS SECTIONS OF THE LATTER'S GENERAL BUSINESS.  U.S. BUREAU OF
CENSUS, RETAIL TRADE, SINGLE UNITS AND MULTIUNITS, BC58-RS3, P. I. AS
DESCRIBED, INFRA, BROWN OPERATED NUMEROUS LEASED SHOE DEPARTMENTS IN
GENERAL STORES WHICH WOULD BE INCLUDED IN THE CENSUS BUREAU'S TOTAL OF
"SHOE STORES." 

FN6  U.S. BUREAU OF THE CENSUS, 1958 CENSUS OF MANUFACTURERS, MC58(2)
31A-6.  BY 1958, THE NUMBER OF INDEPENDENT MANUFACTURERS HAD DECREASED
BY ANOTHER 10% TO 872.  IBID. 

FN7  KINNEY'S PAIRAGE SALES OF MEN'S, WOMEN'S, AND CHILDREN'S SHOES
WERE EXTRACTED FROM EXHIBITS SUBMITTED TO THE GOVERNMENT IN RESPONSE TO
ITS INTERROGATORIES.  SEE GX6, R. 48-53.  THESE STATISTICS ARE
VIRTUALLY IDENTICAL TO THOSE CITED IN APPELLANT'S BRIEF, WITH BUT ONE
EXCEPTION.  IN ITS INTERNAL OPERATIONS, APPELLANT CLASSIFIES CERTAIN
SHOES AS "GROWING GIRLS'" SHOES WHILE THE CITED FIGURES FOLLOW THE
CENSUS BUREAU'S TREATMENT OF SUCH SHOES AS "WOMEN'S" SHOES. 

FN8  AS STATED IN THE TESTIMONY OF CLARK R. GAMBLE, PRESIDENT OF
BROWN SHOE COMPANY: 

"IT WAS OUR FEELING, IN ADDITION TO GETTING A DISTRIBUTION INTO THE
FIELD OF PRICES WHICH WE WERE NOT COVERING, IT WAS ALSO THE FEELING
THAT AS KINNEY MOVED INTO THE SHOPPING CENTERS IN THESE FREE STANDING
STORES, THEY WERE GOING INTO A HIGHER INCOME NEIGHBORHOOD AND THEY
WOULD PROBABLY FIND THE NECESSITY OF UP-GRADING AND ADDING ADDITIONAL
LINES TO THEIR VERY SUCCESSFUL OPERATION THAT THEY HAD BEEN DOING AND
IT WOULD GIVE US AN OPPORTUNITY WE HOPED TO BE ABLE TO SELL THEM IN
THAT CATEGORY.  BESIDES THAT, IT WAS A VERY SUCCESSFUL OPERATION AND
WOULD GIVE US A GOOD DIVERSIFIED INVESTMENT TO STABILIZE OUR
EARNINGS."  T. 1323. 

FN9  CONGRESS THUS LIMITED THE RIGHT OF REVIEW IN SUCH CASES TO AN
APPEAL FROM A DECREE WHICH DISPOSED OF ALL MATTERS, AND IT PRECLUDED
THE POSSIBILITY OF AN APPEAL EITHER TO THIS COURT OR TO A COURT OF
APPEALS FROM AN INTERLOCUTORY DECREE.  UNITED STATES V. CALIFORNIA
COOPERATIVE CANNERIES, 279 U.S. 553, 558. 

FN10  AFTER PROBABLE JURISDICTION HAD BEEN NOTED, A JOINT MOTION OF
THE PARTIES TO POSTPONE ORAL ARGUMENT ON THE APPEAL TO THE PRESENT TERM
OF THE COURT WAS GRANTED.  365 U.S. 825. 

FN11  SECTION 22, 1 STAT. 84, IN ITS PRESENT FORM, 28 U.S.C. SEC.
1291. 

FN12  CF. 28 U.S.C. SEC. 1292; FED. RULES CIV. PROC., 54(B); 28
U.S.C. SEC. 1651; EX PARTE UNITED STATES, 226 U.S. 420; UNITED STATES
V. UNITED STATES DISTRICT COURT, 334 U.S. 258; BEACON THEATRES, INC.,
V. WESTOVER, 359 U.S. 500. 

FN13  FED. RULES CIV. PROC., 1. 

FN14  SEE, E.G., UNITED STATES V. READING CO., 226 F. 229, 286
(D.C.E.D. PA.), 1 DECREES & JUDGMENTS IN CIVIL FEDERAL ANTITRUST CASES
(HEREINAFTER CITED "D.&J.") 575, 576-577, AFFIRMED IN PERTINENT PART,
253 U.S. 26; UNITED STATES V. NATIONAL LEAD CO., 63 F. SUPP. 513, 534
535 (D.C.S.D.N.Y.), 4 D.&J. 2846, 2851, AFFIRMED, 332 U.S. 319; UNITED
STATES V. TIMKEN ROLLER BEARING CO., 83 F. SUPP. 284, 318 (D.C.N.D.
OHIO) (RELEVANT PORTIONS OF THE DECREE REPRINTED AT 341 U.S. 593, 602
N. 1), MODIFIED, 341 U.S. 593; UNITED STATES V. UNITED SHOE MACHINERY
CORP., 110 F. SUPP. 295, 352-353, 354 (D.C.D. MASS.), AFFIRMED, 347
U.S. 521; UNITED STATES V. MARYLAND & VIRGINIA MILK PRODUCERS ASSN.,
167 F. SUPP. 799, 809 (D.C.D.C.), AFFIRMED, 362 U.S. 458.  THE COURT
HAS ALSO APPROVED THE PRACTICE OF DISTRICT COURT'S OF RETAINING
JURISDICTION IN SUCH CASES FOR FUTURE MODIFICATIONS OF THEIR DECREES, A
PRACTICE WHICH HAS ALSO NOT BEEN CONSIDERED INCONSISTENT WITH THE
FINALITY OF THE ORIGINAL DECREES.  SEE ASSOCIATED PRESS V. UNITED
STATES, 326 U.S. 1, 22-23; LORAIN JOURNAL CO. V. UNITED STATES, 342
U.S. 143, 157.  BUT CF. UNITED STATES V. SCHINE CHAIN THEATRES, 63 F.
SUPP. 229, 241-242 (D.C.W.D.N.Y.), 2 D.&J. 1815, MODIFIED, 334 U.S.
110; UNITED STATES V. PARAMOUNT PICTURES, 70 F. SUPP. 53, 72, 75
(D.C.S.D.N.Y.), 2 D.&J. 1682, MODIFIED, 334 U.S. 131, REVISED IN
ACCORDANCE WITH THIS COURT'S MANDATE, 85 F. SUPP. 881-901, 2 D.&J.
1690, AFFIRMED SUB NOM.  LOEW'S, INC., V. UNITED STATES, 339 U.S. 974,
IN WHICH REVIEW DID AWAIT THE ENTRY OF SPECIFIC AND DETAILED PROVISIONS
FOR DISPOSITION OF THE DEFENDANTS' ASSETS. 

FN15  CF. FORGAY V. CONRAD, 6 HOW.  201; CARONDELET CANAL CO. V.
LOUISIANA, 233 U.S. 362; RADIO STATION WOW V. JOHNSON, 326 U.S. 120;
COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541.  THE DETAILS
OF THE DIVESTITURE WHICH THE DISTRICT COURT WILL APPROVE CANNOT AFFECT
THE OUTCOME OF THE BASIC LITIGATION IN THIS CASE, AS THE DETAILS OF AN
EMINENT DOMAIN SETTLEMENT MIGHT MOOT THE CLAIMS OF THE CONDEMNEE IN
THAT TYPE OF SUIT.  SEE REPUBLIC NATURAL GAS CO. V. OKLAHOMA, 334 U.S.
62; GRAYS HARBOR LOGGING CO. V. COATS-FORDNEY CO., 243 U.S. 251. 

FN16  THE COURT HAS, OF COURSE, OCCASIONALLY REVIEWED VARYING FACETS
OF SINGLE ANTITURST CASES ON SEPARATE APPEALS.  HOWEVER, SUCH CASES ARE
DISTINGUISHABLE FROM THE SITUATION AT BAR.  THUS, ONE GROUP INCLUDES
CASES IN WHICH THE GOVERNMENT FIRST SOUGHT APPELLATE REVIEW FROM
DISMISSALS OF ITS COMPLAINTS, WHEREAFTER THE COURT CONSIDERED THE
ORDERS ENTERED ON REMAND.  E.G., UNITED STATES V. TERMINAL R. ASSN. OF
ST. LOUIS, 224 U.S. 383; 236 U.S. 194; UNITED STATES V. E.I. DU PONT DE
NEMOURS & CO., 353 U.S. 586; 366 U.S. 316.  ANOTHER GROUP INCLUDES
CASES IN WHICH THE GOVERNMENT APPEALED FROM WHAT IT CONSIDERED TO BE
INADEQUATE DECREES, IN WHICH THE COURT LATER CONSIDERED THE FURTHER
RELIEF ORDERED ON REMAND.  E.G., UNITED STATES V. READING CO., 253 U.S.
26, LATER CONSIDERED SUB NOM.  CONTINENTAL INSURANCE CO. V. UNITED
STATES, 259 U.S. 156; UNITED STATES V. PARAMOUNT PICTURES, 334 U.S.
131, LATER CONSIDERED SUB NOM. LOEW'S, INC., V. UNITED STATES, 339 U.S.
974.  AND APPEALS IN WHICH THE DETAILS OF A DIVESTITURE WERE MADE A
PRIMARY ISSUE HAVE FOLLOWED THE ENTRY OF SUCH ORDERS UPON THE FILING OF
CONSENT DECREES, IN WHICH THE UNDERLYING REQUIREMENTS OF DIVESTITURE
WERE NEVER PREVIOUSLY PRESENTED.  E.G., SWIFT & CO. V. UNITED STATES,
276 U.S. 311; UNITED STATES V. SWIFT & CO., 286 U.S. 106; CHRYSLER
CORP. V. UNITED STATES, 316 U.S. 556; FORD MOTOR CO. V. UNITED STATES
335 U.S. 303.  CF. INTERNATIONAL HARVESTER CO. V. UNITED STATES, 248
U.S. 587; 274 U.S. 693. 

FN17  CF. JERROLD ELECTRONICS CORP. V. UNITED STATES, 365 U.S. 567,
AFFIRMING 187 F. SUPP. 545, 563-567 (D.C.E.D. PA.). 

FN18  MATERIAL IN ITALICS WAS ADDED BY THE AMENDMENTS; MATERIAL IN
BRACKETS WAS DELETED.  "NO CORPORATION ENGAGED IN COMMERCE SHALL
ACQUIRE, DIRECTLY OR INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR
OTHER SHARE CAPITAL AND NO CORPORATION SUBJECT TO THE JURISDICTION OF
THE FEDERAL TRADE COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE
ASSETS OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY
LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH
ACQUISITION MAY BE TO SUBSTANTIALLY TO LESSEN COMPETITION (BETWEEN THE
CORPORATION WHOSE STOCK IS SO ACQUIRED AND THE CORPORATION MAKING THE
ACQUISITION, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY),
OR TO TEND TO CREATE A MONOPOLY (OF ANY LINE OF COMMERCE)."  OTHER
PARAGRAPHS OF SEC. 7 WERE ALSO AMENDED IN DETAILS NOT RELEVANT TO THIS
CASE.  THE ONLY OTHER CASES TO REACH THIS COURT, IN WHICH THE
GOVERNMENT'S COMPLAINTS WERE BASED, IN PART, ON AMENDED SEC. 7, WERE
MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S.
458, AND JERROLD ELECTRONICS CORP. V. UNITED STATES, 365 U.S. 567. 
HOWEVER, A DETAILED ANALYSIS OF THE SCOPE AND PURPOSES OF THE 1950
AMENDMENTS WAS UNNECESSARY TO OUR DISPOSITION OF THE ISSUES RAISED IN
THOSE CASES. 

FN19 S. 2277, 67TH CONG., 1ST SESS. (1921); H.R. 7371, S. 2549, 75TH
CONG., 1ST SESS.  (1937); H.R. 10176, S. 3345, 75TH CONG., 2D SESS.
(1938); H.R. 1517, S. 577, 78TH CONG., 1ST SESS. (1943); H.R. 2357,
H.R. 4519, H.R. 4810, S. 615, 79TH CONG., 1ST SESS. (1945); H.R. 5535,
79TH CONG., 2D SESS. (1946); H.R. 515, H.R. 3736, S. 104, 80TH CONG.,
1ST SESS.  (1947); H.R. 7024, 80TH CONG., 2D SESS. (1948); H.R. 988,
H.R. 1240, H.R. 2006, H.R.  2734, S. 56, 81ST CONG., 1ST SESS. (1949). 

PUBLIC HEARINGS WERE HELD ON H.R. 2357, 79TH CONG., 1ST SESS. (1945);
S. 104, 80TH CONG., 1ST SESS. (1947); H.R. 515, 80TH CONG., 1ST SESS.
(1947), AND H.R. 2734, 81ST CONG., 1ST SESS. (1949-1950). 

FOR REVIEWS OF THE LEGISLATIVE HISTORY OF THE AMENDMENTS, SEE NOTES,
52 COL. L. REV.  766 (1952); 46 ILL. L. REV. 444 (1951); BOK, SECTION 7
OF THE CLAYTON ACT AND THE MERGING OF LAW AND ECONOMICS, 74 HARV. L.
REV. 226, 233-238 (1960); HANDLER AND ROBINSON, A DECADE OF
ADMINISTRATION OF THE CELLER-KEFAUVER ANTIMERGER ACT, 61 COL. L. REV.
629, 652-674 (1961); MARTIN, MERGERS AND THE CLAYTON ACT 221-310
(1959). 

FN20  SEE ARROW-HART & HEGEMAN ELECTRIC CO. V. FEDERAL TRADE COMM'N
291 U.S. 587; FEDERAL TRADE COMM'N V. WESTERN MEAT CO., 272 U.S. 554. 
SEE ALSO UNITED STATES V. CELANESE CORP., 91 F. SUPP. 14
(D.C.S.D.N.Y.); 1 F.T.C. 541-542; 33 OP. ATTY. GEN.  225, 241. 

FN21  THIS WAS THE MANNER IN WHICH THE FEDERAL TRADE COMMISSION HAD
VIEWED THE PROHIBITIONS OF ORIGINAL SEC. 7.  SEE F.T.C. ANN. REP. 6-7
(1929); STATEMENT BY GENERAL COUNSEL KELLEY IN HEARINGS BEFORE
SUBCOMMITTEE 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 2734,
81ST CONG., 1ST SESS. (HEREINAFTER CITED AS H.R. HEARINGS ON H.R. 2734)
38.  HOWEVER, WE HAVE HELD, SINCE THE ADOPTION OF THE 1950 AMENDMENTS,
THAT SUCH A CONSTRUCTION OF SEC. 7 WAS INCORRECT.  UNITED STATES V.
E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586. 

FN22  FOR EXPRESSIONS OF THIS QUESTIONABLE VIEW OF THE BACKGROUND OF
THE ORIGINAL ACT SEE F.T.C., THE MERGER MOVEMENT:  A SUMMARY REPORT 2
(1948); TESTIMONY OF THEN REPRESENTATIVE KEFAUVER, IN HEARINGS BEFORE
SUBCOMMITTEE 2 OF THE HOUSE COMMITTEE ON THE JUDICIARY OF H.R. 515,
80TH CONG., 1ST SESS. (HEREINAFTER CITED AS HEARINGS ON H.R. 515) 4-5;
REMARKS OF SENATOR O'MAHONEY, 96 CONG. REC. 16443; H.R. REP NO. 1191,
81ST CONG., 1ST SESS. 4-5.  FOR A CRITIQUE OF THIS UNDERSTANDING OF THE
ACT SEE UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586,
613-615 (DISSENT), AND REVIEWS CITED IN NOTE 19, SUPRA. 

FN23  SEE 51 CONG. REC. 14255, 14316, 14456-14457 (REMARKS OF
SENATORS CHILTON, CUMMINS, COLT, REED).  AN AMENDMENT OFFERED DURING
THE SENATE'S FLOOR DEBATE BY SENATOR CUMMINS WOULD HAVE PRECLUDED THE
ACQUISITION BY ONE CORPORATION OF THE STOCK "OR ANY OTHER MEANS OF
CONTROL OR PARTICIPATION IN THE CONTROL" OF TWO OR MORE OTHER
CORPORATIONS CARRYING ON BUSINESS OF THE SAME KIND OR COMPETITIVE IN
CHARACTER.  THE AMENDMENT WAS NOT DIRECTED AT ASSET ACQUISITIONS
SPECIFICALLY AND WAS, IN ANY EVENT, OVERWHELMINGLY DEFEATED.  51 CONG.
REC. 14315, 14473-14476. 

FN24 SEE 51 CONG. REC. 9073-9074, 9271, 14226, 14254, 14316, 14420,
14465-14466 (REMARKS OF REPRESENTATIVES WEBB AND CARLIN AND SENATORS
REED, CUMMINS AND POINDEXTER); H.R. REP. NO. 627, 63D CONG., 2D SESS.
17; S. REP. NO. 698, 63D CONG., 2D SESS. 13. 

FN25  SEE F.T.C. ANN. REP. FOR 1928, 19; ID. FOR 1929, AT 6, 59; ID.
FOR 1930, AT 50-51; ID. FOR 1935, AT 16, 48; ID. FOR 1936, AT 48; ID.
FOR 1937, AT 15; ID. FOR 1938, AT 11, 19, 29; ID. FOR 1939, AT 14, 16;
ID. FOR 1940, AT 12-13; ID. FOR 1941, AT 19-20; ID. FOR 1942, AT 9; ID.
FOR 1943, AT 9; ID. FOR 1944, AT 8; ID. FOR 1945, AT 8-9; ID. FOR 1946,
AT 12; ID. FOR 1947, AT 12; ID. FOR 1948, AT 11, 16.  THE COMMISSION
HAS CONTINUED UNSUCCESSFULLY TO URGE ADOPTION OF THE PRIOR NOTIFICATION
PROVISION.  SEE ID. FOR 1958, AT 7; ID. FOR 1960, AT 12. 

FN26  TEMPORARY NATIONAL ECONOMIC COMMITTEE, FINAL REPORT AND
RECOMMENDATIONS, S. DOC. NO. 35, 77TH CONG., 1ST SESS. 38-40 (1941). 

FN27  F.T.C., THE PRESENT TREND OF CORPORATE MERGERS AND
ACQUISITIONS, REPRINTED IN HEARINGS ON H.R. 515, AT 300-317; F.T.C.,
THE MERGER MOVEMENT:  A SUMMARY REPORT, PASSIM; 95 CONG. REC. 11500
11507; 96 CONG. REC. 16433, 16444, 16457; S. REP. NO. 1775, 81ST CONG.,
2D SESS. 3.  THE HOUSE REPORT ON THE AMENDMENTS SUMMARIZED ITS VIEW OF
THE SITUATION: 

"THAT THE CURRENT MERGER MOVEMENT (DURING THE YEARS 1940-1947) HAS
HAD A SIGNIFICANT EFFECT ON THE ECONOMY IS CLEARLY REVEALED BY THE FACT
THAT THE ASSET VALUE OF THE COMPANIES WHICH HAVE DISAPPEARED THROUGH
MERGERS AMOUNTS TO 5.2 BILLION DOLLARS, OR NO LESS THAN 5.5 PERCENT OF
THE TOTAL ASSETS OF ALL MANUFACTURING CORPORATIONS - A SIGNIFICANT
SEGMENT OF THE ECONOMY TO BE SWALLOWED UP IN SUCH A SHORT PERIOD OF
TIME."  H.R. REP.  NO. 1191, 81ST CONG., 1ST SESS. 3. 

FN28  SEE, E.G., 95 CONG. REC. 11486, 11489, 11494-11495, 11498; 96
CONG. REC.  16444, 16448, 16450, 16452, 16503 (REMARKS BY THE
COSPONSORS OF THE AMENDMENTS, REPRESENTATIVE CELLER AND SENATOR
KEFAUVER, AND BY REPRESENTATIVES BRYSON, KEATING AND PATMAN AND
SENATORS MURRAY AND AIKEN).  CF. UNITED STATES V. ALUMINUM CO. OF
AMERICA, 148 F.2D 416, 429 (C.A.2D CIR., PER LEARNED HAND, J.):
"THROUGHOUT THE HISTORY OF THESE ANTITRUST STATUTES IT HAS BEEN
CONSTANTLY ASSUMED THAT ONE OF THEIR PURPOSES WAS TO PERPETUATE AND
PRESERVE, FOR ITS OWN SAKE AND IN SPITE OF POSSIBLE COST, AN
ORGANIZATION OF INDUSTRY IN SMALL UNITS WHICH CAN EFFECTIVELY COMPETE
WITH EACH OTHER." 

FN29  VIRTUALLY EVERY MEMBER OF CONGRESS WHO SPOKE IN SUPPORT OF THE
AMENDMENTS, INDICATED THAT THIS ASPECT OF THE LEGISLATION WAS ITS
SALIENT CHARACTERISTIC.  REPRESENTATIVE KEFAUVER, ONE OF THE ACT'S
SPONSORS, TESTIFIED, "THE BILL IS NOT COMPLICATED.  IT PROPOSES SIMPLY
TO PLUG THE LOOPHOLE IN SECTIONS 7 AND 11 OF THE CLAYTON ACT." 
HEARINGS ON H.R. 515, AT 4.  THE SENATE REPORT ON THE MEASURE FINALLY
ADOPTED SUMMARIZED THE "PURPOSE" OF THE AMENDMENT WITH THIS SINGLE
PARAGRAPH:    "THE PURPOSE OF THE PROPOSED LEGISLATION IS TO PREVENT
CORPORATIONS FROM ACQUIRING ANOTHER CORPORATION BY MEANS OF THE
ACQUISITION OF ITS ASSETS, WHEREUNDER THE PRESENT LAW IT IS PROHIBITED
FROM ACQUIRING THE STOCK OF SAID CORPORATION.  SINCE THE ACQUISITION OF
STOCK IS SIGNIFICANT CHIEFLY BECAUSE IT IS LIKELY TO RESULT IN CONTROL
OF THE UNDERLYING ASSETS, FAILURE TO PROHIBIT DIRECT PURCHASE OF THE
SAME ASSETS HAS BEEN INCONSISTENT AND PARADOXICAL AS TO THE OVER-ALL
EFFECT OF EXISTING LAW."  S. REP.  NO. 1775, 81ST CONG., 2D SESS. 2. 

FN30  THE DELETION OF THE "ACQUIRING-ACQUIRED" TEST WAS THE DIRECT
RESULT OF AN AMENDMENT OFFERED BY THE FEDERAL TRADE COMMISSION.  IN
PRESENTING THE PROPOSED CHANGE, COMMISSION COUNSEL KELLEY MADE THE
FOLLOWING POINTS:  THIS COURT'S DECISIONS HAD IMPLIED THAT THE EFFECT
ON COMPETITION BETWEEN THE PARTIES TO THE MERGER WAS NOT THE ONLY TEST
OF THE ILLEGALITY OF A STOCK MERGER; THE COURT HAD APPLIED SHERMAN ACT
TESTS TO CLAYTON ACT CASES AND THUS JUDGED THE EFFECT OF A MERGER ON
THE INDUSTRY AS A WHOLE; THIS INCORPORATION OF SHERMAN ACT TESTS, WITH
THE ACCOMPANYING "RULE OF REASON," WAS INADEQUATE FOR REACHING SOME
MERGERS WHICH THE COMMISSION FELT WERE NOT IN THE PUBLIC INTEREST; AND
THE NEW AMENDMENT PROPOSED A MIDDLE GROUND BETWEEN WHAT APPEARED TO BE
AN OVERLY RESTRICTIVE TEST INSOFAR AS MERGERS BETWEEN COMPETITORS WERE
CONCERNED, AND WHAT APPEARED TO THE COMMISSION TO BE AN OVERLY LENIENT
TEST INSOFAR AS ALL OTHER MERGERS WERE CONCERNED.  CONGRESSMAN KEFAUVER
SUPPORTED THIS AMENDMENT AND THE COMMISSION'S PROPOSAL WAS THEN
INCORPORATED INTO THE BILL WHICH WAS EVENTUALLY ADOPTED BY THE
CONGRESS.  SEE HEARINGS ON H.R. 515, AT 23, 117-119, 238-240, 259;
HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE ON
H.R. 2734, 81ST CONG., 1ST SESS. (HEREINAFTER CITED AS S. HEARINGS ON
H.R. 2734) 147. 

FN31  THAT SEC. 7 WAS INTENDED TO APPLY TO ALL MERGERS - HORIZONTAL,
VERTICAL OR CONGLOMERATE - WAS SPECIFICALLY REITERATED BY THE HOUSE
REPORT ON THE FINAL BILL.  H.R.  REP. NO. 1191, 81ST CONG., 1ST SESS.
11.  AND SEE NOTE 21, SUPRA. 

FN32  THAT SEC. 7 OF THE CLAYTON ACT WAS INTENDED TO REACH INCIPIENT
MONOPOLIES AND TRADE RESTRAINTS OUTSIDE THE SCOPE OF THE SHERMAN ACT
WAS EXPLICITLY STATED IN THE SENATE REPORT ON THE ORIGINAL ACT.  S.
REP. NO. 698, 63D CONG., 2D SESS. 1.  SEE UNITED STATES V. E.I. DU PONT
DE NEMOURS & CO., 353 U.S. 586, 589.  THIS THEME WAS REITERATED IN
CONGRESSIONAL CONSIDERATION OF THE AMENDMENTS ADOPTED IN 1950, AND
FOUND EXPRESSION IN THE FINAL HOUSE AND SENATE REPORTS ON THE MEASURE. 
H.R. REP. NO. 1191, 81ST CONG., 1ST SESS. 8 ("ACQUISITIONS OF STOCK OR
ASSETS HAVE A CUMULATIVE EFFECT, AND CONTROL OF THE MARKET  ...  MAY BE
ACHIEVED NOT IN A SINGLE ACQUISITION BUT AS THE RESULT OF A SERIES OF
ACQUISITIONS.  THE BILL IS INTENDED TO PERMIT INTERVENTION IN SUCH A
CUMULATIVE PROCESS WHEN THE EFFECT OF AN ACQUISITION MAY BE A
SIGNIFICANT REDUCTION IN THE VIGOR OF COMPETITION."); S. REP.  NO.
1775, 81ST CONG., 2D SESS. 4-5 ("THE INTENT HERE  ...  IS TO COPE WITH
MONOPOLISTIC TENDENCIES IN THEIR INCIPIENCY AND WELL BEFORE THEY HAVE
ATTAINED SUCH EFFECTS AS WOULD JUSTIFY A SHERMAN ACT PROCEEDING.").
AND SEE F.T.C., THE MERGER MOVEMENT:  A SUMMARY REPORT 6-7. 

FN33  THE REPORT OF THE HOUSE JUDICIARY COMMITTEE ON H.R. 515
RECOMMENDED THE ADOPTION OF TESTS MORE STRINGENT THAN THOSE IN THE
SHERMAN ACT.  H.R. REP. NO. 596, 80TH CONG., 1ST SESS. 7.  A VIGOROUS
MINORITY THOUGHT NO NEW LEGISLATION WAS NEEDED.  ID., AT 11-18. 
BETWEEN THE ISSUANCE OF THIS REPORT AND THE COMMITTEE'S SUBSEQUENT
CONSIDERATION OF H.R.  2734, THIS COURT HAD DECIDED UNITED STATES V.
COLUMBIA STEEL CO., 334 U.S. 495, WHICH SOME UNDERSTOOD TO INDICATE
THAT EXISTING LAW MIGHT BE INADEQUATE TO PREVENT MERGERS THAT HAD
SUBSTANTIALLY LESSENED COMPETITION IN A SECTION OF THE COUNTRY, BUT
WHICH, NEVERTHELESS, HAD NOT RISEN TO THE LEVEL OF THOSE RESTRAINTS OF
TRADE OR MONOPOLY PROHIBITED BY THE SHERMAN ACT.  SEE 96 CONG. REC.
16502 (REMARKS OF SENATOR KEFAUVER); H.R. REP. NO. 1191, 81ST CONG.,
1ST SESS. 10-11.  NUMEROUS OTHER STATEMENTS BY CONGRESSMEN AND SENATORS
AND BY REPRESENTATIVES OF THE FEDERAL TRADE COMMISSION, THE DEPARTMENT
OF JUSTICE AND THE PRESIDENT'S COUNCIL OF ECONOMIC ADVISORS WERE MADE
TO THE CONGRESS SUGGESTING THAT A STANDARD OF ILLEGALITY STRICTER THAN
THAT IMPOSED BY THE SHERMAN ACT WAS NEEDED.  SEE, E.G., H.R. HEARINGS
ON H.R. 2734, AT 13, 29, 41, 117; S. HEARINGS ON H.R. 2734, AT 22, 23,
47, 66, 319.  THE HOUSE JUDICIARY COMMITTEE'S 1949 REPORT SUPPORTED
THIS CONCEPT UNANIMOUSLY ALTHOUGH FIVE OF THE NINE MEMBERS WHO HAD
DISSENTED TWO YEARS EARLIER IN H.R. REP. NO. 596 WERE STILL SERVING ON
THE COMMITTEE.  H.R. REP. NO. 1191, 81ST CONG., 1ST SESS. 7-8.  THE
SENATE REPORT WAS EXPLICIT:  "THE COMMITTEE WISH TO MAKE IT CLEAR THAT
THE BILL IS NOT INTENDED TO REVERT TO THE SHERMAN ACT TEST.  THE INTENT
HERE  ...  IS TO COPE WITH MONOPOLISTIC TENDENCIES IN THEIR INCIPIENCY
AND WELL BEFORE THEY HAVE ATTAINED SUCH EFFECTS AS WOULD JUSTIFY A
SHERMAN ACT PROCEEDING  ...  .  THE VARIOUS ADDITIONS AND DELETIONS -
SOME STRENGTHENING AND OTHERS WEAKENING THE BILL - ARE NOT CONFLICTING
IN PURPOSE AND EFFECT.  THEY MERELY ARE DIFFERENT STEPS TOWARD THE SAME
OBJECTIVE, NAMELY, THAT OF FRAMING A BILL WHICH, THOUGH DROPPING
PORTIONS OF THE SO-CALLED CLAYTON ACT TEST THAT HAVE NO ECONOMIC
SIGNIFICANCE (THE REFERENCE WOULD APPEAR TO BE PRIMARILY TO THE
"ACQUIRING-ACQUIRED" STANDARD OF THE ORIGINAL ACT), REACHES FAR BEYOND
THE SHERMAN ACT."  S. REP. NO. 1775, 81ST CONG., 2D SESS. 4-5. 

FN34  AS TO SMALL COMPANY MERGERS, SEE H.R. HEARINGS ON H.R. 2734, AT
41, 117; S. HEARINGS ON H.R. 2734, AT 6, 51; 95 CONG. REC. 11486,
11488, 11506; 96 CONG. REC. 16436; H.R. REP.  NO. 1191, 81ST CONG., 1ST
SESS. 6-8; S. REP. NO. 1775, 81ST CONG., 2D SESS. 4.  AS TO MERGERS
WITH FAILING COMPANIES, SEE S. HEARINGS ON H.R. 2734, AT 115, 134-135;
198; 96 CONG. REC. 16435, 16444; H.R. REP. NO. 1191, SUPRA, AT 6; S.
REP. NO. 1775, SUPRA, AT 7. 

FN35  THE FEDERAL TRADE COMMISSION'S AMENDMENT, SEE NOTE 30, SUPRA,
INCLUDED THE PHRASE "WHERE ...  IN ANY SECTION, COMMUNITY, OR TRADE
AREA, THERE IS REASONABLE PROBABILITY THAT THE EFFECT OF SUCH
ACQUISITION MAY BE TO SUBSTANTIALLY LESSEN COMPETITION."  CONGRESSMAN
KEFAUVER URGED DELETION OF THE WORD "COMMUNITY" ON THE GROUND THAT IT
MIGHT SUGGEST, FOR EXAMPLE, THAT A MERGER BETWEEN TWO SMALL FILLING
STATIONS IN A SECTION OF A CITY WAS PROSCRIBED.  HEARINGS ON H.R. 515,
AT 260.  AND SEE ALSO 96 CONG. REC. 16453.  THE FEAR OF LITERAL
PROHIBITION OF ALL BUT DE MINIMIS MERGERS THROUGH THE USE OF THE WORD
"COMMUNITY" WAS ALSO CITED BY THE SENATE REPORT ON THE BASIS FOR ITS
RETENTION SOLELY OF THE WORD "SECTION."  S. REP. NO. 1775, 81ST CONG.,
2D SESS. 4.  THE REFERENCE TO "TRADE AREA" WAS DELETED AS REDUNDANT,
WHEN IT BECAME CLEAR THAT THE "SECTION" OF THE COUNTRY TO WHICH THE ACT
WAS TO APPLY, REFERRED NOT TO A DEFINITE GEOGRAPHIC AREA OF THE
COUNTRY, BUT RATHER THE GEOGRAPHIC AREA OF EFFECTIVE COMPETITION IN THE
RELEVANT LINE OF COMMERCE.  SEE S. HEARINGS ON H.R. 2734, AT 38-52, 66
84, 101-102, 132, 133, 144, 145; H.R. REP. NO. 1191, 81ST CONG., 1ST
SESS. 8; S. REP. NO. 1775, 81ST CONG., 2D SESS. 4, 5-6.  THE SENATE
REPORT CITED WITH APPROVAL THE DEFINITION OF THE MARKET EMPLOYED BY THE
COURT IN STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, 337 U.S. 293,
299 N. 5. 

FN36  THE HOUSE REPORT ON H.R. 2734 STATED THAT TWO TESTS OF
ILLEGALITY WERE INCLUDED IN THE PROPOSED ACT:  WHETHER THE MERGER
SUBSTANTIALLY LESSENED COMPETITION OR TENDED TO CREATE A MONOPOLY.   IT
STATED THAT SUCH EFFECTS COULD BE PERCEIVED THROUGH FINDINGS, FOR
EXAMPLE, THAT A WHOLE OR MATERIAL PART OF THE COMPETITIVE ACTIVITY OF
AN ENTERPRISE, WHICH HAD BEEN A SUBSTANTIAL FACTOR IN COMPETITION, HAD
BEEN ELIMINATED; THAT THE RELATIVE SIZE OF THE ACQUIRING CORPORATION
HAD INCREASED TO SUCH A POINT THAT ITS ADVANTAGE OVER COMPETITORS
THREATENED TO BE "DECISIVE"; THAT AN "UNDUE" NUMBER OF COMPETING
ENTERPRISES HAD BEEN ELIMINATED; OR THAT BUYERS AND SELLERS IN THE
RELEVANT MARKET HAD ESTABLISHED RELATIONSHIPS DEPRIVING THEIR RIVALS OF
A FAIR OPPORTUNITY TO COMPETE.  H.R. REP. NO. 1191, 81ST CONG., 1ST
SESS. 8.  EACH OF THESE STANDARDS, COUCHED IN GENERAL LANGUAGE,
REFLECTS A CONSCIOUS AVOIDANCE OF EXCLUSIVELY MATHEMATICAL TESTS EVEN
THOUGH THE CASE OF STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, 337
U.S. 293, SAID TO HAVE CREATED A "QUANTITATIVE SUBSTANTIALITY" TEST FOR
SUITS ARISING UNDER SEC. 3 OF THE CLAYTON ACT, WAS DECIDED WHILE
CONGRESS WAS CONSIDERING H.R. 2734.  SOME DISCUSSION OF THE
APPLICABILITY OF THIS TEST TO SEC. 7 CASES ENSUED, SEE, E.G., S.
HEARINGS ON H.R. 2734, AT 31-32, 169-172; S. REP. NO. 1775, 81ST CONG.,
2D SESS. 21; 96 CONG. REC. 16443, BUT THIS ASPECT OF THE STANDARD OIL
DECISION WAS NEITHER SPECIFICALLY ENDORSED NOR IMPUGNED BY THE BILL'S
SUPPORTERS.  HOWEVER, THE HOUSE JUDICIARY COMMITTEE'S REPORT, ISSUED
TWO MONTHS AFTER STANDARD OIL HAD BEEN DECIDED, REMARKED THAT THE TESTS
OF ILLEGALITY UNDER THE NEW ACT WERE INTENDED TO BE "SIMILAR TO THOSE
WHICH THE COURTS HAVE APPLIED IN INTERPRETING THE SAME LANGUAGE AS USED
IN OTHER SECTIONS OF THE CLAYTON ACT."  H.R. REP. NO. 1191, 81ST CONG.,
1ST SESS. 8. 

FN37  A NUMBER OF THE SUPPORTERS OF THE AMENDMENTS VOICED THEIR
CONCERN THAT PASSAGE OF THE BILL WOULD AMOUNT TO LOCKING THE BARN DOOR
AFTER MOST OF THE HORSES HAD BEEN STOLEN, BUT URGED APPROVAL OF THE
MEASURE TO PREVENT THE THEFT OF THOSE STILL IN THE BARN.  WHICH WAS TO
SAY THAT, IF PARTICULAR INDUSTRIES HAD NOT YET BEEN SUBJECT TO THE
CONGRESSIONALLY PERCEIVED TREND TOWARD CONCENTRATION, ADOPTION OF THE
AMENDMENTS WAS URGED AS A WAY OF PREVENTING THE TREND FROM REACHING
THOSE INDUSTRIES AS YET UNAFFECTED.  SEE, E.G., 95 CONG. REC. 11489,
11494, 11498 (REMARKS OF REPRESENTATIVES KEATING, YATES, PATMAN); 96
CONG. REC. 16444 (REMARKS OF SENATORS O'MAHONEY, MURRAY). 

FN38  SUBSEQUENT TO THE ADOPTION OF THE 1950 AMENDMENTS, BOTH THE
FEDERAL TRADE COMMISSION AND THE COURTS HAVE, IN THE LIGHT OF CONGRESS'
EXPRESSED INTENT, RECOGNIZED THE RELEVANCE AND IMPORTANCE OF ECONOMIC
DATA THAT PLACES ANY GIVEN MERGER UNDER CONSIDERATION WITHIN AN
INDUSTRY FRAMEWORK ALMOST INEVITABLY UNIQUE IN EVERY CASE.  STATISTICS
REFLECTING THE SHARES OF THE MARKET CONTROLLED BY THE INDUSTRY LEADERS
AND THE PARTIES TO THE MERGER ARE, OF COURSE, THE PRIMARY INDEX OF
MARKET POWER; BUT ONLY A FURTHER EXAMINATION OF THE PARTICULAR MARKET -
ITS STRUCTURE, HISTORY AND PROBABLE FUTURE - CAN PROVIDE THE
APPROPRIATE SETTING FOR JUDGING THE PROBABLE ANTICOMPETITIVE EFFECT OF
THE MERGER.   SEE, E.G., PILLSBURY MILLS, INC., 50 F.T.C. 555; UNITED
STATES V. BETHLEHEM STEEL CORP., 168 F. SUPP. 576 (D.C.S.D.N.Y.);
UNITED STATES V. JERROLD ELECTRONICS CORP., 187 F. SUPP.  545 (D.C.E.D.
PA.), AFF'D, 365 U.S. 567.  AND SEE U.S. ATTY. GEN. NAT COMM. TO STUDY
THE ANTITRUST LAWS, REPORT 126 (1955). 

FN39  IN THE COURSE OF BOTH THE COMMITTEE HEARINGS AND FLOOR DEBATE,
ATTENTION WAS OCCASIONALLY FOCUSED ON THE ISSUE OF WHETHER "POSSIBLE,"
"PROBABLE" OR "CERTAIN" ANTICOMPETITIVE EFFECTS OF A PROPOSED MERGER
WOULD HAVE TO BE PROVEN TO ESTABLISH A VIOLATION OF THE ACT.  LANGUAGE
WAS QUOTED FROM PRIOR DECISIONS OF THE COURT IN ANTITRUST CASES IN
WHICH EACH OF THESE INTERPRETATIONS OF THE WORD "MAY" WAS SUGGESTED AS
APPROPRIATE.  H.R. HEARINGS ON H.R. 2734, AT 74; S. HEARINGS ON H.R.
2734, AT 32, 33, 160-168; 96 CONG. REC. 16453, 16502.  THE FINAL SENATE
REPORT ON THE QUESTION WAS EXPLICIT ON THE POINT: 

"THE USE OF THESE WORDS "MAY BE" MEANS THAT THE BILL, IF ENACTED,
WOULD NOT APPLY TO THE MERE POSSIBILITY BUT ONLY TO THE REASONABLE
PROBABILITY OF THE PRESCRIBED EFFECT  ...  .  THE WORDS 'MAY BE' HAVE
BEEN IN SECTION 7 OF THE CLAYTON ACT SINCE 1914.  THE CONCEPT OF
REASONABLE PROBABILITY CONVEYED BY THESE WORDS IS A NECESSARY ELEMENT
IN ANY STATUTE WHICH SEEKS TO ARREST RESTRAINTS OF TRADE IN THEIR
INCIPIENCY AND BEFORE THEY DEVELOP INTO FULL-FLEDGED RESTRAINTS
VIOLATIVE OF THE SHERMAN ACT.  A REQUIREMENT OF CERTAINTY AND ACTUALITY
OF INJURY TO COMPETITION IS INCOMPATIBLE WITH ANY EFFORT TO SUPPLEMENT
THE SHERMAN ACT BY REACHING INCIPIENT RESTRAINTS."  S. REP.  NO. 1775,
81ST CONG., 2D SESS. 6.  SEE ALSO 51 CONG. REC. 14464 (REMARKS OF
SENATOR REED). 

FN40  IN ADDITION, A VERTICAL MERGER MAY DISRUPT AND INJURE
COMPETITION WHEN THOSE INDEPENDENT CUSTOMERS OF THE SUPPLIER WHO ARE IN
COMPETITION WITH THE MERGING CUSTOMER, ARE FORCED EITHER TO STOP
HANDLING THE SUPPLIER'S LINES, THEREBY JEOPARDIZING THE GOODWILL THEY
HAVE DEVELOPED, OR TO RETAIN THE SUPPLIER'S LINES, THEREBY FORCING THEM
INTO COMPETITION WITH THEIR OWN SUPPLIER.  SEE UNITED STATES V.
BETHLEHEM STEEL CORP., 168 F. SUPP. 576, 613 (D.C.S.D.N.Y.).  SEE ALSO
GX 13, R. 215, A LETTER FROM SAM SULLIVAN, AN INDEPENDENT SHOE
RETAILER, TO CLARK GAMBLE, PRESIDENT OF BROWN SHOE CO. 

FN41  UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586,
593. 

FN42  THE CROSS-ELASTICITY OF PRODUCTION FACILITIES MAY ALSO BE AN
IMPORTANT FACTOR IN DEFINING A PRODUCT MARKET WITHIN WHICH A VERTICAL
MERGER IS TO BE VIEWED.  CF. UNITED STATES V. COLUMBIA STEEL CO., 334
U.S. 495, 510-511; UNITED STATES V. BETHLEHEM STEEL CORP., 168 F. SUPP.
576, 592 (D.C.S.D.N.Y.).  HOWEVER, THE DISTRICT COURT MADE BUT LIMITED
FINDINGS CONCERNING THE FEASIBILITY OF INTERCHANGING EQUIPMENT IN THE
MANUFACTURE OF NONRUBBER FOOTWEAR.  AT THE SAME TIME, THE RECORD
SUPPORTS THE COURT'S CONCLUSION THAT INDIVIDUAL PLANTS GENERALLY
PRODUCED SHOES IN ONLY ONE OF THE PRODUCT LINES THE COURT FOUND
RELEVANT.    FN43  SEE GENERALLY BOCK, MERGERS AND MARKETS, AN ECONOMIC
ANALYSIS OF CASE LAW 25-35 (1960). 

FN44  UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586,
592, 595; A.G. SPALDING & BROS. V. FEDERAL TRADE COMM'N, 301 F.2D 585,
603 (C.A.3D CIR.); AMERICAN CRYSTAL SUGAR CO. V. CUBAN-AMERICAN SUGAR
CO., 259 F.2D 524, 527 (C.A.2D CIR.); UNITED STATES V. BETHLEHEM STEEL
CORP., 168 F. SUPP. 576, 603 (D.C.S.D.N.Y.).  SEE ALSO NOTE 39, SUPRA. 

FN45  15 U.S.C. SECS. 1 AND 2.  SEE S. REP. NO. 1775, 81ST CONG., 2D
SESS. 4-5.    FN46  SEE NOTE 33, SUPRA. 

FN47  SEE NOTE 38, SUPRA, AND NOTE 55, INFRA, AND THE ACCOMPANYING
TEXT. 

FN48  ALTHOUGH IT IS "UNNECESSARY FOR THE GOVERNMENT TO SPECULATE AS
TO WHAT IS IN THE 'BACK OF THE MINDS' OF THOSE WHO PROMOTE A MERGER,"
H.R. REP. NO. 1191, 81ST CONG., 1ST SESS. 8, EVIDENCE INDICATING THE
PURPOSE OF THE MERGING PARTIES, WHERE AVAILABLE, IS AN AID IN
PREDICTING THE PROBABLE FUTURE CONDUCT OF THE PARTIES AND THUS THE
PROBABLE EFFECTS OF THE MERGER.  SWIFT & CO. V. UNITED STATES, 196 U.S.
375, 396; UNITED STATES V. MARYLAND & VIRGINIA MILK PRODUCERS ASSN.,
167 F. SUPP. 799, 804 (D.C.D.C.), AFF'D, 362 U.S. 458. 

FN49  SEE H.R. REP. NO. 1191, 81ST CONG., 1ST SESS 8. 

FN50  SEE ALSO COMMENT, 59 MICH. L. REV. 1236, 1239-1240 (1961). 

FN51  COMPARE STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, 337
U.S. 293, 306, WITH FEDERAL TRADE COMM'N V. SINCLAIR REFINING CO., 261
U.S. 463. 

FN52  H.R. REP. NO. 1191, 81ST CONG., 1ST SESS. 6; S. REP. NO. 1775,
81ST CONG., 2D SESS. 7. 

FN53  SEE NOTE 34, SUPRA.  COMPARE HARLEY-DAVIDSON CO., 50 F.T.C.
1047, 1066, AND U.S. ATTY. GEN. NAT. COMM. TO STUDY THE ANTITRUST LAWS,
REPORT 143 (1955). 

FN54  SEE NOTE 8, SUPRA. 

FN55  MOREOVER, OWNERSHIP INTEGRATION IS A MORE PERMANENT AND
IRREVERSIBLE TIE THAN IS CONTRACT INTEGRATION.  SEE KESSLER AND STERN,
COMPETITION, CONTRACT, AND VERTICAL INTEGRATION, 69 YALE L.J.1, 78
(1959). 

FN56  SEE GENERALLY PILLSBURY MILLS, INC., 50 F.T.C. 555, 572-573;
UNITED STATES V. BETHLEHEM STEEL CORP., 168 F. SUPP. 576, 606
(D.C.S.D.N.Y.); STIGLER, MERGERS AND PREVENTIVE ANTITRUST POLICY, 104
U. OF PA. L. REV. 176, 180 (1955); U.S. ATTY. GEN.  NAT. COMM. TO STUDY
THE ANTITRUST LAWS, REPORT 124 (1955). 

FN57  SEE HANDLER AND ROBINSON, A DECADE OF ADMINISTRATION OF THE
CELLER-KEFAUVER ANTIMERGER ACT, 61 COL. L. REV. 629, 668 (1961). 

FN58  SEE NOTE 39, SUPRA, AND ACCOMPANYING TEXT. 

FN59  UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586,
589, 597. 

FN60  SEE NOTE 28, SUPRA, AND ACCOMPANYING TEXT. 

FN61  SEE ALSO STIGLER, MERGERS AND PREVENTIVE ANTITRUST POLICY, 104
U. OF PA. L. REV.  176, 180 (1955). 

FN62  SEE, E.G., UNITED STATES V. TRENTON POTTERIES CO., 273 U.S.
392; SUGAR INSTITUTE, INC., V. UNITED STATES, 297 U.S. 553; UNITED
STATES V. PARAMOUNT PICTURES, 334 U.S. 131; TIMKEN ROLLER BEARING CO.
V. UNITED STATES, 341 U.S. 593. 

FN63  SEE NOTE 30, SUPRA. 

FN64  AMERICAN CRYSTAL SUGAR CO. V. CUBAN-AMERICAN SUGAR CO., 152 F.
SUPP. 387, 398 (D.C.S.D.N.Y.), AFF'D, 259 F.2D 524 (C.A.2D CIR.); S.
REP. NO. 1775, 81ST CONG., 2D SESS. 5-6. 

FN65  TO ILLUSTRATE:  IF TWO RETAILERS, ONE OPERATING PRIMARILY IN
THE EASTERN HALF OF THE NATION, AND THE OTHER OPERATING LARGELY IN THE
WEST, COMPETED IN BUT TWO MID-WESTERN CITIES, THE FACT THAT THE LATTER
OUTLETS REPRESENTED BUT A SMALL SHARE OF EACH COMPANY'S BUSINESS WOULD
NOT IMMUNIZE THE MERGER IN THOSE MARKETS IN WHICH COMPETITION MIGHT BE
ADVERSELY AFFECTED.  ON THE OTHER HAND, THAT FACT WOULD, OF COURSE, BE
PROPERLY CONSIDERED IN DETERMINING THE EQUITABLE RELIEF TO BE DECREED. 
CF. UNITED STATES V. JERROLD ELECTRONICS CORP., 187 F. SUPP. 545
(D.C.E.D. PA.), AFF'D, 365 U.S. 567. 

FN66  IN DESCRIBING THE GEOGRAPHIC MARKET IN WHICH BROWN AND KINNEY
COMPETED, THE DISTRICT COURT INCLUDED CITIES IN WHICH BROWN "FRANCHISE
PLAN" AND "WOHL PLAN" STORES WERE LOCATED.  ALTHOUGH SUCH STORES WERE
NOT OWNED OR DIRECTLY CONTROLLED BY BROWN, DID NOT SELL BROWN PRODUCTS
EXCLUSIVELY AND DID NOT FINANCE INVENTORY THROUGH BROWN, WE BELIEVE
THERE WAS ADEQUATE EVIDENCE BEFORE THE DISTRICT COURT TO SUPPORT ITS
FINDING THAT SUCH STORES WERE "BROWN STORES."  TO SUCH STORES BROWN
PROVIDED SUBSTANTIAL ASSISTANCE IN THE FORM OF MERCHANDISING AND
ADVERTISING AIDS, REPORTS ON MARKET AND MANAGEMENT RESEARCH, LOANS,
GROUP LIFE AND FIRE INSURANCE AND CENTRALIZED PURCHASE OF RUBBER
FOOTWEAR FROM MANUFACTURERS ON BROWN'S CREDIT.  FOR THESE SERVICES,
BROWN REQUIRED THE RETAILER TO DEAL ALMOST EXCLUSIVELY IN BROWN'S
PRODUCTS IN THE PRICE SCALE AT WHICH BROWN SHOES SOLD.  FURTHER, BROWN
RESERVED THE POWER TO TERMINATE SUCH FRANCHISE AGREEMENTS ON 30 DAYS'
NOTICE.  SINCE THE RETAILER WAS REQUIRED, UNDER THIS PLAN, TO INVEST
HIS OWN RESOURCES AND DEVELOP HIS GOOD WILL TO A SUBSTANTIAL EXTENT IN
THE SALE OF BROWN PRODUCTS, THE FLOW OF WHICH BROWN COULD READILY
TERMINATE, BROWN WAS ABLE TO EXERCISE SUFFICIENT CONTROL OVER THESE
STORES AND DEPARTMENTS TO WARRANT THEIR CHARACTERIZATION AS "BROWN"
OUTLETS FOR THE PURPOSE OF MEASURING THE SHARE AND EFFECT OF BROWN'S
COMPETITION AT THE RETAIL LEVEL.  CF. STANDARD OIL CO. OF CALIFORNIA V.
UNITED STATES, 337 U.S. 293. 

FN67  THE DISTRICT COURT LIMITED ITS FINDINGS TO CITIES HAVING A
POPULATION OF AT LEAST 10,000 PERSONS, SINCE KINNEY OPERATED ONLY IN
SUCH AREAS. 

FN68  SEE STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, 337 U.S.
293, 313; U.S. ATTY. GEN. NAT. COMM. TO STUDY THE ANTITRUST LAWS,
REPORT 126 (1955):  "WHILE SUFFICIENT DATA TO SUPPORT A CONCLUSION IS
REQUIRED, SUFFICIENT DATA TO GIVE THE ENFORCEMENT AGENCIES, THE COURTS
AND BUSINESS CERTAINTY AS TO COMPETITIVE CONSEQUENCES WOULD NULLIFY THE
WORDS 'WHERE THE EFFECT MAY BE' IN THE CLAYTON ACT AND CONVERT THEM
INTO 'WHERE THE EFFECT IS.'"  AND THE COMMITTEE OF THE JUDICIAL
CONFERENCE OF THE UNITED STATES ON PROCEDURE IN ANTITRUST AND OTHER
PROTRACTED CASES HAS ALSO EMPHASIZED THE NEED FOR LIMITING THE MASS OF
POSSIBLY RELEVANT EVIDENCE IN CASES OF THIS TYPE IN ORDER TO AVOID
CONFUSION AND ITS CONCOMITANT INCREASED POSSIBILITY OF ERROR.  13
F.R.D. 62, 64. 

FN69  BROWN OBJECTS, FOR EXAMPLE, TO THE FACT THAT THESE EXHIBITS ARE
DRAFTED ON THE BASIS OF THE CITIES CONCERNING WHICH CENSUS INFORMATION
WAS AVAILABLE, RATHER THAN ON THE BASIS OF THE CITIES AND THEIR
ENVIRONS - AS THE RELEVANT MARKETS WERE DEFINED BY THE DISTRICT COURT. 
HOWEVER, THE RECORD SHOWS THAT THE STATISTICS OF SHOE SALES IN CITIES
BY AND LARGE CONFORM TO STATISTICS OF SHOE SALES IN COUNTIES IN WHICH
THOSE CITIES ARE THE PRINCIPAL METROPOLITAN AREA.  SEE APPENDIX D,
INFRA.  THUS, WE FIND NO ERROR IN A CONCLUSION DRAWN AS TO A SLIGHTLY
LARGER MARKET FROM THE AVAILABLE RECORD OF SALES IN CITIES ALONE. 
BROWN ALSO OBJECTS TO THE USE OF PAIRAGE SALES, RATHER THAN DOLLAR
VOLUME, AS THE BASIS FOR DEFINING THE SIZE, AND MEASURING BROWN'S
SHARES, OF THE MARKET.  HOWEVER, SINCE BROWN AND KINNEY SOLD SHOES
PRIMARILY IN THE LOW AND MEDIUM PRICE RANGES, AND IN THE LIGHT OF THE
CONCEDED SPREAD IN SHOE PRICES, WE AGREE THAT SALES MEASURED BY PAIRAGE
PROVIDE A MORE ACCURATE PICTURE OF THE BROWN-KINNEY SHARES OF THE
MARKET THAN DO SALES MEASURED IN DOLLARS.  DETAILED STATISTICS OF SHOE
SALES WERE AVAILABLE ONLY IN TERMS OF DOLLAR VOLUME, HOWEVER, AND BROWN
OBJECTS TO THE METHOD BY WHICH THE GOVERNMENT HAS CONVERTED THOSE
FIGURES INTO THOSE REFLECTING SALES IN TERMS OF PAIRAGE.  THE
GOVERNMENT'S CONVERSION WAS, WITH SOME EXCEPTIONS, BASED ON NATIONAL
MEDIAN INCOME AND NATIONAL AVERAGES OF SHOE PRICES AND THE RATIO OF
MEN, WOMEN AND CHILDREN IN THE POPULATION.  THE DISTRICT COURT ACCEPTED
EXPERT TESTIMONY OFFERED BY THE GOVERNMENT TO THE EFFECT THAT SHOE
PRICE AND POPULATION AGE, SEX AND INCOME VARIATIONS IN THE RELEVANT
CITIES PRODUCED, AT MOST, A 6% ERROR IN THE CONVERTED STATISTICS, AND
THAT THIS ERROR WAS AS LIKELY TO FAVOR BROWN (BY INCREASING THE
UNIVERSE OF SALES AGAINST WHICH BROWN'S SHARES WERE TO BE MEASURED) AS
IT WAS TO DISFAVOR IT.  WE FIND NO ERROR IN THE DISTRICT COURT'S
ACCEPTANCE OF THE GOVERNMENT'S EVIDENCE AS TO THE PROPRIETY OF THE
ACCOUNTING METHODS ITS EXPERTS EMPLOYED.  LASTLY, BROWN OBJECTS THAT
THE STATISTICS CONCERNING ITS OWN PAIRAGE SALES WERE IMPROPERLY DERIVED
SINCE THEY INCLUDED SALES BY ITS WHOLESALE DISTRIBUTORS TO THE RETAIL
OUTLETS ON ITS FRANCHISE PLANS IN THE SAME CATEGORY AS SALES TO
ULTIMATE CONSUMERS BY ITS OWNED RETAIL STORES.  AGAIN, WHILE
RECOGNIZING A POSSIBLE MARGIN OF ERROR IN STATISTICS COMBINING SALES AT
TWO LEVELS OF DISTRIBUTION, WE BELIEVE THEY PROVIDE AN ADEQUATE BASIS
UPON WHICH TO GUAGE BROWN SALES THROUGH OUTLETS IT CONTROLLED. 
PARTICULARLY AS THE FRANCHISE STORES WERE REQUIRED TO FINANCE THEIR OWN
INVENTORY, DOES IT SEEM REASONABLE TO CONCLUDE THAT MOST OF THEIR
PURCHASES FROM BROWN'S DISTRIBUTORS WERE EVENTUALLY RESOLD.  IN
SUMMARY, ALTHOUGH APPELLANT MAY POINT TO TECHNICAL FLAWS IN THE
COMPILATION OF THESE STATISTICS, WE RECOGNIZE THAT IN CASES OF THIS
TYPE PRECISION IN DETAIL IS LESS IMPORTANT THAN THE ACCURACY OF THE
BROAD PICTURE PRESENTED.  WE BELIEVE THE PICTURE AS PRESENTED BY THE
GOVERNMENT IN THIS CASE IS ADEQUATE FOR MAKING THE DETERMINATION
REQUIRED BY SEC. 7:  WHETHER THIS MERGER MAY TEND TO LESSEN COMPETITION
SUBSTANTIALLY IN THE RELEVANT MARKETS. 

FN70  ALTHOUGH THE SUM OF THE PARTIES' PRE-EXISTING SHARES OF THE
MARKET WILL NORMALLY EQUAL THEIR COMBINED SHARE OF THE IMMEDIATE POST
MERGER MARKET, WE RECOGNIZE THAT THIS SHARE NEED NOT REMAIN STABLE IN
THE FUTURE.  NEVERTHELESS, SUCH STATISTICS PROVIDE A GRAPHIC PICTURE OF
THE IMMEDIATE IMPACT OF A MERGER, AND, AS SUCH, ALSO PROVIDE A
MEANINGFUL BASE UPON WHICH TO BUILD CONCLUSIONS OF THE PROBABLE FUTURE
EFFECTS OF THE MERGER. 

FN71  SEE UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S.
586, 595-596; A.G. SPAULDING & BROS. V. FEDERAL TRADE COMM'N, 301 F.2D
585, 612-615 (C.A.3D CIR.); UNITED STATES V. BETHLEHEM STEEL CORP., 168
F. SUPP. 576, 603-611 (D.C.S.D.N.Y.).  CF. BOK, SECTION 7 OF THE
CLAYTON ACT AND THE MERGING OF LAW AND ECONOMICS, 74 HARV. L. REV. 226,
279, 308-311 (1960). 

FN72 SEE NOTE 38, SUPRA.  A COMPANY'S HISTORY OF EXPANSION THROUGH
MERGERS PRESENTS A DIFFERENT ECONOMIC PICTURE THAN A HISTORY OF
EXPANSION THROUGH UNILATERAL GROWTH.  INTERNAL EXPANSION IS MORE LIKELY
TO BE THE RESULT OF INCREASED DEMAND FOR THE COMPANY'S PRODUCTS AND IS
MORE LIKELY TO PROVIDE INCREASED INVESTMENT IN PLANTS, MORE JOBS AND
GREATER OUTPUT.  CONVERSELY, EXPANSION THROUGH MERGER IS MORE LIKELY TO
REDUCE AVAILABLE CONSUMER CHOICE WHILE PROVIDING NO INCREASE IN
INDUSTRY CAPACITY, JOBS OR OUTPUT.  IT WAS FOR THESE REASONS, AMONG
OTHERS, CONGRESS EXPRESSED ITS DISAPPROVAL OF SUCCESSIVE ACQUISITIONS. 
CONCENTRATION IN AN INDUSTRY.  SEE S. REP. NO. 1775, 81ST CONG., 2D
SESS. 5.  CF. UNITED STATES V. JERROLD ELECTRONICS CORP., 187 F. SUPP.
545, 566 (D.C.E.D. PA.)  AFF'D, 365 U.S. 567; UNITED STATES V.
BETHLEHEM STEEL CORP., 168 F. SUPP. 576, 606 (D.C.S.D.N.Y.). 

FN73  SEE NOTE 5, SUPRA. 

FN74  ALTHOUGH STATISTICS CONCERNING THE DEGREE OF CONCENTRATION AND
THE RANK OF BROWN-KINNEY IN TERMS OF CONTROLLED RETAIL STORES IN EACH
OF THE RELEVANT PRODUCT AND GEOGRAPHIC MARKETS WOULD HAVE BEEN MORE
HELPFUL IN ANALYZING THE RESULTS OF THIS MERGER, NEITHER SIDE HAS
PRESENTED SUCH STATISTICS.  THE FIGURES IN THE RECORD, BASED ON
NATIONAL RANK, ARE, NEVERTHELESS, USEFUL IN DEPICTING THE TRENDS IN THE
INDUSTRY. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE CLARK, CONCURRING. 

I AGREE THAT SO LONG AS THE EXPEDITING ACT, 15 U.S.C. SEC. 29, IS ON
THE BOOKS WE HAVE NO ALTERNATIVE BUT TO ACCEPT JURISDICTION IN THIS
CASE.  THE ACT DECLARES THAT APPEALS IN CIVIL ANTITRUST CASES IN WHICH
THE UNITED STATES IS COMPLAINANT LIE ONLY TO THIS COURT.  IT THUS
DEPRIVES THE PARTIES OF AN INTERMEDIATE APPEAL AND THIS COURT OF THE
BENEFIT OF CONSIDERATION BY A COURT OF APPEALS.  UNDER OUR SYSTEM A
PARTY SHOULD BE ENTITLED TO AT LEAST ONE APPELLATE REVIEW, AND SINCE
THE SOLE OPPORTUNITY IN CASES UNDER THE EXPEDITING ACT IS IN THIS COURT
WE USUALLY NOTE JURISDICTION.  A FAIR CONSIDERATION OF THE ISSUES
REQUIRES US TO CARRY OUT THE FUNCTION OF A COURT OF APPEALS BY
EXAMINING THE WHOLE RECORD AND RESOLVING ALL QUESTIONS, WHETHER OR NOT
THEY ARE SUBSTANTIAL.  THIS IS A GREAT BURDEN ON THE COURT AND SELDOM
RESULTS IN MUCH EXPEDITION, AS IN THIS CASE WHERE 2 1/2 YEARS HAVE
PASSED SINCE THE DISTRICT COURT'S DECISION. 

ON THE MERITS THE CASE PRESENTS THE QUESTION OF WHETHER, UNDER SEC. 7
OF THE CLAYTON ACT, THE ACQUISITION BY BROWN OF THE KINNEY RETAIL
STORES MAY SUBSTANTIALLY LESSEN COMPETITION IN SHOES ON A NATIONAL
BASIS OR IN ANY SECTION OF THE COUNTRY.*  TO ME SEC. 7 IS DEFINITE AND
CLEAR.  IT PROHIBITS ACQUISITIONS, EITHER OF STOCK OR ASSETS, WHERE
COMPETITION IN ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY MAY
BE SUBSTANTIALLY LESSENED.  THE TEST AS STATED IN THE SENATE REPORT ON
THE BILL IS WHETHER THERE IS "A REASONABLE PROBABILITY" THAT
COMPETITION MAY BE LESSENED. 

*SINCE THE JUDGMENT BELOW CAN BE SUPPORTED ON THIS THEORY, THERE IS
NO NEED TO INQUIRE INTO ANY TENDENCY TO CREATE A MONOPOLY. 

AN ANALYSIS OF THE RECORD INDICATES (1) THAT BROWN, WHICH MAKES ALL
TYPES OF SHOES, IS THE FOURTH LARGEST MANUFACTURER IN THE COUNTRY; (2)
THAT KINNEY LIKEWISE MANUFACTURES SOME SHOES BUT DEALS PRIMARILY IN
RETAILING, HAVING ALMOST 400 STORES THAT HANDLE A SUBSTANTIAL VOLUME OF
SALES; (3) THAT ITS ACQUISITION WOULD GIVE BROWN A TOTAL OF SOME 1,600
RETAIL OUTLETS, MAKING IT THE SECOND LARGEST RETAILER IN THE NATION;
(4) THAT KINNEY'S STORES ARE ON BOTH A NATIONAL AND LOCAL BASIS
STRATEGICALLY PLACED FROM A RETAIL MARKET STANDPOINT IN SUBURBAN AREAS
OR TOWNS OF OVER 10,000 POPULATION; (5) THAT KINNEY'S SUPPLIERS ARE
SMALL SHOE MANUFACTURERS; (6) THAT BROWN'S EARLIER ACQUISITIONS, SEVEN
IN NUMBER IN FIVE YEARS, INDICATE A PATTERN TO INCREASE THE SALE OF
BROWN SHOES THROUGH THE ACQUISITION OF INDEPENDENT OUTLETS, RESULTING
IN THE LOSS OF SALES BY SMALL COMPETING MANUFACTURERS; (7) THAT
STATISTICS ON THESE OUTLETS INDICATE THAT BROWN, AFTER ACQUISITION, HAS
MATERIALLY INCREASED ITS SHIPMENTS OF BROWN SHOES TO THEM, SOME AS MUCH
AS 50%; AND (8) THAT THE ACQUISITION WOULD HAVE A DIRECT EFFECT ON THE
SMALL MANUFACTURERS WHO PREVIOUSLY ENJOYED THE KINNEY REQUIREMENTS
MARKET. 

IT WOULD APPEAR THAT THE RELEVANT LINE OF COMMERCE WOULD BE SHOES OF
ALL TYPES.  THIS IS EMPHASIZED BY THE NATURE OF BROWN'S MANUFACTURING
ACTIVITY AND ITS PLAN TO INTEGRATE THE KINNEY STORES INTO ITS
OPERATIONS.  THE COMPETITION AFFECTED THEREBY WOULD BE IN THE LINE
HANDLED BY THESE STORES WHICH IS THE FULL LINE OF SHOES MANUFACTURED BY
BROWN.  THIS CONCLUSION IS MORE IN KEEPING WITH THE RECORD AS I READ IT
AND AT THE SAME TIME AVOIDS THE CHARGE OF SPLINTERING THE PRODUCT
LINE.   LIKEWISE, THE LOCATION OF THE KINNEY STORES POINTS MORE TO A
NATIONAL MARKET IN SHOES THAN A NUMBER OF REGIONAL MARKETS STAKED BY
ARTIFICIAL MUNICIPAL BOUNDARIES.  BROWN'S BUSINESS IS ON A NATIONAL
SCALE AND ITS POLICY OF INTEGRATION OF MANUFACTURING AND RETAILING IS
ON THAT BASIS.  I WOULD CONCLUDE, THEREFORE, THAT IT WOULD BE MORE
REASONABLE TO DEFINE THE LINE OF COMMERCE AS SHOES - THOSE SOLD IN THE
ORDINARY RETAIL STORE - AND THE MARKET AS THE ENTIRE COUNTRY. 

ON THIS RECORD BUT ONE CONCLUSION CAN FOLLOW, I.E., THAT THE
ACQUISITION BY BROWN OF THE 400 KINNEY STORES FOR THE PURPOSES OF
INTEGRATING THEIR OPERATION INTO ITS MANUFACTURING ACTIVITY CREATED A
"REASONABLE PROBABILITY" THAT COMPETITION IN THE MANUFACTURE AND SALE
OF SHOES ON A NATIONAL BASIS MIGHT BE SUBSTANTIALLY LESSENED.  I WOULD
THEREFORE AFFIRM. 

MR. JUSTICE HARLAN, DISSENTING IN PART AND CONCURRING IN PART. 

I WOULD DISMISS THIS APPEAL FOR LACK OF JURISDICTION, BELIEVING THAT
THE CASE IN ITS PRESENT POSTURE IS PREMATURELY HERE BECAUSE THE
JUDGMENT SOUGHT TO BE REVIEWED IS NOT YET FINAL.  SINCE THE COURT,
HOWEVER, HOLDS THAT THE CASE IS PROPERLY BEFORE US, I CONSIDER IT
APPROPRIATE, AFTER NOTING MY DISSENT TO THIS HOLDING, TO EXPRESS MY
VIEWS ON THE MERITS BECAUSE THE ISSUES ARE OF GREAT IMPORTANCE.  ON
THAT ASPECT, I CONCUR IN THE JUDGMENT OF THE COURT BUT DO NOT JOIN ITS
OPINION, WHICH I CONSIDER TO GO FAR BEYOND WHAT IS NECESSARY TO DECIDE
THE CASE. 

          JURISDICTION. 

THE COURT'S AUTHORITY TO ENTERTAIN THIS APPEAL DEPENDS ON SEC. 2 OF
THE EXPEDITING ACT OF 1903.  THAT STATUTE, IN ITS PRESENT FORM,
PROVIDES (15 U.S.C. SEC. 29): 

"IN EVERY CIVIL ACTION BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES UNDER ANY OF SAID ANTITRUST ACTS, WHEREIN THE UNITED STATES IS
COMPLAINANT, AN APPEAL FROM THE FINAL JUDGMENT OF THE DISTRICT COURT
WILL LIE ONLY TO THE SUPREME COURT." 

THE ACT WAS PASSED BY A CONGRESS WHICH THEREBY "SOUGHT  ...  TO
ENSURE SPEEDY DISPOSITION OF SUITS IN EQUITY BROUGHT BY THE UNITED
STATES UNDER THE ANTITRUST ACT."  UNITED STATES V. CALIFORNIA
COOPERATIVE CANNERIES, 279 U.S. 553, 558.  THIS MAJOR POLICY
CONSIDERATION EMERGES CLEARLY FROM THE OTHERWISE MEAGER LEGISLATIVE
HISTORY OF THE ACT.  SEE H.R.  REP. NO. 3020, 57TH CONG., 2D SESS.
(1903); 36 CONG. REC. 1679, 1744, 1747.  IT WAS IN KEEPING WITH THIS
PURPOSE THAT "CONGRESS LIMITED THE RIGHT OF REVIEW TO AN APPEAL FROM
THE DECREE WHICH DISPOSED OF ALL MATTERS  ...  AND  ... PRECLUDED THE
POSSIBILITY OF AN APPEAL TO EITHER THE SUPREME COURT OR THE COURT OF
APPEALS  ... FROM AN INTERLOCUTORY DECREE."  UNITED STATES V.
CALIFORNIA COOPERATIVE CANNERIES, SUPRA.  FOR IT WAS ENTIRELY
CONSISTENT WITH ITS DESIRE TO EXPEDITE THESE CASES FOR CONGRESS TO HAVE
ELIMINATED THE TIME-CONSUMING DELAYS OCCASIONED BY INTERLOCUTORY
APPEALS EITHER TO INTERMEDIATE COURTS OR TO THIS COURT. 

BY TAKING JURISDICITON OVER THIS APPEAL AT THE PRESENT TIME, DESPITE
THE FACT THAT, EVEN IF AFFIRMED, THIS CASE WOULD DOUBTLESS REAPPEAR ON
THE COURT'S DOCKET IF THE TERMS OF THE DISTRICT COURT'S DIVESTITURE
DECREE ARE UNSATISFACTORY TO THE APPELLANT OR TO THE GOVERNMENT, THE
COURT IS PAVING THE WAY FOR DUAL APPEALS IN ALL GOVERNMENT ANTITRUST
CASES WHERE INTRICATE DIVESTITURE JUDGMENTS ARE INVOLVED.  WHETHER OR
NOT SUCH A PROCEDURE IS ADVISABLE FROM THE STANDPOINT OF JUDICIAL
ADMINISTRATION OR PRACTICAL BUSINESS CONSIDERATIONS - AND I THINK SUCH
QUESTIONS BY NO MEANS FREE FROM DOUBT - I BELIEVE THAT IT IS CONTRARY
TO THE PROVISIONS AND PURPOSES OF THE EXPEDITING ACT, AND THAT THE
CONSTRUCTION NOW GIVEN THE ACT DOES VIOLENCE TO THE ACCEPTED MEANING OF
"FINAL JUDGMENT" IN THE FEDERAL JUDICIAL SYSTEM. 

THE JUDGMENT FROM WHICH THIS APPEAL IS TAKEN DIRECTS THE APPELLANT TO
"RELINQUISH AND DISPOSE OF THE STOCK, SHARE CAPITAL AND ASSETS" OF THE
G.R. KINNEY COMPANY AND ENJOINS FURTHER INTERLOCKING INTERESTS BETWEEN
THE TWO CORPORATIONS.  IT DOES NOT SPECIFY HOW THE DIVESTITURE IS TO BE
CARRIED OUT, BUT DIRECTS APPELLANT TO FILE "A PROPOSED PLAN TO CARRY
INTO EFFECT THE DIVESTITURE ORDER" AND GRANTS THE GOVERNMENT 30 DAYS
FOLLOWING SUCH FILING IN WHICH TO SUBMIT "OPPOSITION OR SUGGESTIONS
THERETO."  WHEN CONSIDERED IN LIGHT OF THE DISTRICT COURT'S OPINION,
THIS RESERVATION EMERGES AS MUCH MORE THAN A MERE RETENTION OF
JURISDICTION FOR THE PURPOSE OF MINISTERIALLY EXECUTING A DEFINITE AND
PRECISE FINAL JUDGMENT.  SEE, E.G., RAY V. LAW, 3 CRANCH 179; FRENCH V.
SHOEMAKER, 12 WALL.  86, 98.  IN LIGHT OF THIS COURT'S REMARKS IN
UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, 607-608,
THE DISTRICT COURT CONCLUDED THAT THE PARTICULAR FORM WHICH THE
DIVESTITURE ORDER WAS TO TAKE WAS A MATTER WHICH "COULD HAVE FAR
REACHING EFFECTS AND CONSEQUENCES," 179 F. SUPP., AT 741, AND THAT IT
WOULD BE APPROPRIATE FOR THE COURT TO CONDUCT HEARINGS ON THE MANNER IN
WHICH THE KINNEY STOCK OUGHT TO BE DISPOSED OF BY THE APPELLANT.  HENCE
IT IS NOT FARFETCHED TO ASSUME THAT PARTICULAR TERMS OF THE REMEDY
ORDERED BY THE DISTRICT COURT WILL BE CONTESTED, AND THAT THIS COURT
MAY WELL BE ASKED TO EXAMINE THE DETAILS RELATING TO THE ANTICIPATED
DIVESTITURE.  E.G., UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 366
U.S. 316. 

THE EXACTING OBLIGATION WITH RESPECT TO THE TERMS OF ANTITRUST
DECREES CAST UPON THIS COURT BY THE EXPEDITING ACT WAS COMMENTED UPON
ONLY LAST TERM.  IN UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 366
U.S. 316, IT WAS NOTED THAT IT WAS THE COURT'S PRACTICE, "PARTICULARLY
IN CASES OF A DIRECT APPEAL FROM THE DECREE OF A SINGLE JUDGE,  ...  TO
EXAMINE THE DISTRICT COURT'S ACTION CLOSELY TO SATISFY OURSELVES THAT
THE RELIEF IS EFFECTIVE TO REDRESS THE ANTITRUST VIOLATION PROVED." 
366 U.S., AT 323; SEE INTERNATIONAL BOXING CLUB, INC., V. UNITED
STATES, 358 U.S. 242, 253.  IN THE PRESENT CASE THE COURT AND THE
PARTIES KNOW NOTHING MORE OF "THIS MOST SIGNIFICANT PHASE OF THE CASE,"
UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 89, THAN THAT
BROWN WILL GENERALLY BE REQUIRED TO DIVEST ITSELF OF ANY INTEREST IN
KINNEY.  EXACTLY HOW THIS SEPARATION IS TO BE ACCOMPLISHED HAS NOT YET
BEEN DETERMINED, AND THERE IS NO WAY OF KNOWING NOW WHETHER BOTH
PARTIES TO THE SUIT WILL FIND THE DECREE SATISFACTORY OR WHETHER ONE OR
BOTH WILL SEEK FURTHER REVIEW IN THIS COURT. 

DESPITE THE OPPORTUNITY THUS CREATED FOR SEPARATE REVIEWS OF THESE
KINDS OF CASES AT THEIR "MERITS" AND "RELIEF" STAGES, THE COURT HOLDS
THAT THE JUDGMENT NOW IN EFFECT HAS "SUFFICIENT INDICIA OF FINALITY"
(ANTE, P. 308) TO RENDER IT APPEALABLE NOW, NOTWITHSTANDING THAT THE
TERMS OF THE ORDERED DIVESTITURE HAVE NOT YET BEEN FIXED.  THIS
CONCLUSION IS BASED UPON THREE DISCRETE CONSIDERATIONS, NONE OF WHICH,
IN MY OPINION, SERVES TO OVERCOME THE "FINAL JUDGMENT" REQUIREMENT OF
THE EXPEDITING ACT, AS THAT TERM HAS HITHERTO BEEN UNDERSTOOD IN
FEDERAL LAW.  (FN1) 

FIRST.  THE COURT SUGGESTS THAT ANY FURTHER PROCEEDINGS TO BE
CONDUCTED IN THE DISTRICT COURT ARE "SUFFICIENTLY INDEPENDENT OF, AND
SUBORDINATE TO, THE ISSUES PRESENTED BY THIS APPEAL" TO PERMIT THEM TO
BE CONSIDERED AND REVIEWED SEPARATELY.  BUT THIS JUDICIALLY CREATED
EXCEPTION TO THE EMBRACING PRINCIPLE OF FINALITY HAS NEVER HERETOFORE
BEEN UTILIZED BY THIS COURT TO PERMIT SEPARATE REVIEW OF A DISTRICT
COURT'S DECISION ON THE UNDERLYING MERITS OF A CLAIM WHEN THE DETAILS
OF THE RELIEF THAT IS TO BE AWARDED ARE YET UNCERTAIN.  THE PRESENT
CASE DOES NOT PRESENT THE POSSIBILITY, AS DID COHEN V. BENEFICIAL
INDUSTRIAL LOAN CORP., 337 U.S. 541, AND FORGAY V. CONRAD, 6 HOW.  201,
THAT A DELAY IN APPELLATE REVIEW WOULD RESULT IN IRREPARABLE HARM,
EQUIVALENT IN EFFECT TO A DENIAL OF ANY REVIEW ON THE POINT AT ISSUE. 
SEE 337 U.S., AT 546; 6 HOW., AT 204.  NOR IS THIS A CASE IN WHICH THE
COMPLAINT'S PRAYERS FOR RELIEF ARE SO DIVERSIFIED THAT THE RESOLUTION
OF ONE BRANCH OF THE CASE "IS INDEPENDENT OF, AND UNAFFECTED BY,
ANOTHER LITIGATION WITH WHICH IT HAPPENS TO BE ENTANGLED."  RADIO
STATION WOW, INC., V. JOHNSON, 326 U.S. 120, 126; SEE CARONDELET CANAL
CO. V. LOUISIANA, 233 U.S. 362, 372-373; FORGAY V. CONRAD, SUPRA. 

IF THE APPELLANT WERE COMPELLED TO AWAIT THE ENTRY OF A
PARTICULARIZED DIVESTITURE ORDER BEFORE BEING GRANTED APPELLATE REVIEW,
IT WOULD SUFFER NO IRREMEDIABLE LOSS; INDEED, IN THIS CASE THE MERGER
WAS ALLOWED TO PROCEED PENDENTE LITE, SO ANY DELAY, TO THE EXTENT THAT
IT COULD AFFECT THE PARTIES, WOULD BENEFIT THE APPELLANT.  NOR CAN IT
WELL BE SUGGESTED THAT THE PARTICULAR CONDITIONS UNDER WHICH THE
DIVESTITURE IS TO BE EXECUTED ARE MATTERS THAT ARE ONLY FORTUITOUSLY
"ENTANGLED" WITH THE MERITS OF THE COMPLAINT.  DESPITE THE SEEMINGLY
MANDATORY TONE OF THE "DIVESTITURE" JUDGMENT NOW BEFORE US, THE PLAIN
FACT REMAINS THAT IT IS BY ITS OWN TERMS INOPERATIVE TO A SUBSTANTIAL
EXTENT UNTIL FURTHER PROCEEDINGS ARE HELD IN THE DISTRICT COURT. 
UNLIKE THE CASES RELIED UPON BY THE COURT, THEREFORE, THIS CASE COMES
UP ON APPEAL BEFORE THE APPELLANT KNOWS EXACTLY WHAT IT HAS BEEN
ORDERED TO DO OR NOT TO DO.  THIS IS SURELY NOT THE TYPE OF JUDGMENT
"WHICH ENDS THE LITIGATION ON THE MERITS AND LEAVES NOTHING FOR THE
COURT TO DO BUT EXECUTE THE JUDGMENT."  CATLIN V. UNITED STATES, 324
U.S. 229, 233; SEE COVINGTON V. COVINGTON FIRST NATIONAL BANK, 185 U.S.
270, 277. 

SECOND.  THE COURT FINDS SIGNIFICANT THE "CHARACTER OF THE DECREE
STILL TO BE ENTERED IN THIS SUIT."  ANTE, P. 309.  SINCE THE ORDER OF
FULL DIVESTITURE REQUIRES "CAREFUL, AND OFTEN EXTENDED, NEGOTIATION AND
FORMULATION," ANTE.  P. 309, IT IS SUGGESTED THAT A DELAY IN CARRYING
OUT ITS TERMS MIGHT RENDER THEM IMPRACTICAL OR UNENFORCEABLE.  APART
FROM THE FACT THAT THIS POLICY CONSIDERATION IS MORE APPROPRIATELY
ADDRESSED TO THE CONGRESS THAN TO THIS COURT, IT APPEARS TO ME TO CALL
FOR A RESULT DIRECTLY CONTRARY TO THAT REACHED BY THE COURT.  FOR IF
THE TERMS OF THE DIVESTITURE ARE INDEED SO DIFFICULT TO FORMULATE AND
SO INTERRELATED WITH MARKET CONDITIONS, IT IS MOST UNLIKELY THAT THE
DECREE TO BE ISSUED BY THE DISTRICT COURT WILL TURN OUT TO BE
SATISFACTORY TO BOTH PARTIES.   CONSEQUENTLY, ON THE COURT'S OWN
REASONING, A SECOND APPEARANCE OF THIS CASE ON OUR DOCKET IS NOT AN
IMAGINATIVE POSSIBILITY BUT A REASONABLE LIKELIHOOD.  IN STATING THAT
THE DIVESTITURE PORTION OF THIS JUDGMENT "IS DISPUTED HERE ON AN 'ALL
OR NOTHING' BASIS," AND THAT "IT IS RIPE FOR REVIEW NOW, AND WILL,
THEREAFTER, BE FORECLOSED," ANTE, P. 309, THE COURT CAN HARDLY MEAN
THAT EITHER THE APPELLANT OR THE GOVERNMENT WILL BE PRECLUDED FROM
SEEKING REVIEW OF THE DIVESTITURE TERMS IF IT DEEMS THEM
UNSATISFACTORY.  INDEED, NEITHER SIDE ON THIS APPEAL HAS ADDRESSED
ITSELF TO THE PROPRIETY OF THE DIVESTITURE REMEDY, AS SUCH, THAT IS
INDEPENDENTLY OF THE QUESTION WHETHER THE MERGER ITSELF RUNS AFOUL OF
THE CLAYTON ACT. 

MOREOVER, IF IT IS DELAY BETWEEN FORMULATION OF THE DECREE AND ITS
EXECUTION THAT IS THOUGHT TO BE DAMAGING, WHAT REASON IS THERE TO
BELIEVE THAT THIS DELAY OR ITS HAZARDS WILL BE ANY GREATER IF THE
ENTIRE CASE IS BROUGHT UP HERE ONCE THAN IF REVIEW IS SEPARATELY SOUGHT
FROM THE DIVESTITURE DECREE ONCE ITS TERMS HAVE BEEN SETTLED?  NOR CAN
IT BE MAINTAINED THAT IF THE MERITS ARE NOW AFFIRMED THEN AN APPEAL ON
THE QUESTION OF RELIEF IS IMPROBABLE.  FOR INSOFAR AS COMPLEX
"NEGOTIAITON AND FORMULATION" IS A FACTOR, THE PROBABILITY OF AN APPEAL
IS EQUALLY LIKELY IN EITHER INSTANCE. 

THIRD.  THE COURT'S FINAL REASON FOR HOLDING THIS JUDGMENT APPEALABLE
IS THAT SIMILAR JUDGMENTS HAVE OFTEN BEEN REVIEWED HERE IN THE PAST
WITH NO ISSUE EVER HAVING BEEN RAISED REGARDING JURISDICTION.  BUT THE
CASES ARE LEGION WHICH HAVE ECHOED THE ANSWER GIVEN BY CHIEF JUSTICE
MARSHALL TO A CONTENTION THAT THE COURT WAS BOUND ON A JURISDICTIONAL
POINT BY ITS CONSIDERATION ON THE MERITS OF A CASE IN WHICH THE
JURISDICTIONAL QUESTION HAD GONE UNNOTICED:  "NO QUESTION WAS MADE, IN
THAT CASE, AS TO THE JURISDICTION.  IT PASSED SUBSILENTIO, AND THE
COURT DOES NOT CONSIDER ITSELF AS BOUND BY THAT CASE."  UNITED STATES
V. MORE, 3 CRANCH 159, 172; SEE SNOW V. UNITED STATES, 118 U.S. 346,
354; CROSS V. BURKE, 146 U.S. 82, 87; LOUISVILLE TRUST CO. V. KNOTT,
191 U.S. 225, 236; NEW V. OKLAHOMA, 195 U.S. 252, 256; UNITED STATES EX
REL. ARANT V. LANE, 245 U.S. 166, 170; STAINBACK V. MO HOCK KE LOK PO,
336 U.S. 368, 379; UNITED STATES V. L.A. TUCKER TRUCK LINES, 344 U.S.
33, 38.  THE FACT THAT THE COURT MAY, IN THE PAST, HAVE OVERLOOKED THE
LACK OF FINALITY IN SOME OF THE JUDGMENTS THAT CAME HERE FOR REVIEW IN
SIMILAR POSTURE TO THIS ONE DOES NOT NOW FREE IT FROM THE REQUIREMENTS
OF THE EXPEDITING ACT.  NOR DOES THE FACT THAT NONE OF THE CASES
REVIEWED IN WHAT NOW APPEARS TO HAVE BEEN AN INTERLOCUTORY STAGE WAS
EVER APPEALED AGAIN JUSTIFY DISREGARD OF THE STATUTE.  THIS HISTORY
MIGHT POINT TO THE DESIRABILITY OF AN AMENDMENT TO THE EXPEDITING ACT,
BUT IT DOES NOT MAKE INTO A "FINAL JUDGMENT" A DECREE WHICH RESERVES
FOR FUTURE DETERMINATION THE TERMS OF THE PRECISE RELIEF TO BE
AFFORDED.    THE COURT SUGGESTS THAT A "PRAGMATIC APPROACH" TO FINALITY
IS CALLED FOR IN LIGHT OF THE POLICIES OF THE FEDERAL RULES OF CIVIL
PROCEDURE, WHICH DIRECT THE "JUST, SPEEDY, AND INEXPENSIVE
DETERMINATION OF EVERY ACTION."  ANTE, P. 306.  BUT THIS MISCONCEIVES
THE NATURE OF THE ISSUE THAT IS PRESENTED.  WHETHER THIS JUDGMENT IS
FINAL AND APPEALABLE IS NOT A QUESTION TURNING ON THE FEDERAL RULES OF
CIVIL PROCEDURE OR ON ANY BALANCE OF POLICIES BY THIS COURT.  CONGRESS
HAS SEEN FIT TO MAKE THIS COURT, FOR REASONS WHICH ARE LESS THAN
OBVIOUS, THE SOLE APPELLATE TRIBUNAL FOR CIVIL ANTITRUST SUITS
INSTITUTED BY THE UNITED STATES.  IN SO DOING, IT HAS CHOSEN TO LIMIT
THIS COURT'S REVIEWING POWER TO "FINAL JUDGMENTS."  WHETHER THE FIRST
OF THESE LEGISLATIVE DETERMINATIONS, MADE IN 1903, WHEN APPEAL AS OF
RIGHT TO THIS COURT WAS THE RULE RATHER THAN THE EXCEPTION, SHOULD
SURVIVE THE EXPANSION IN THE COURT'S DOCKET AND THE DEVELOPMENT,
PURSUANT TO THE JUDICIARY ACT OF 1925, OF THIS COURT'S DISCRETIONARY
CERTIORARI JURISDICTION, MAY NEVER HAVE BEEN GIVEN ADEQUATE
CONSIDERATION BY THE CONGRESS.  (FN2) 

AT THIS PERIOD OF MOUNTING DOCKETS THERE IS CERTAINLY MUCH TO BE SAID
IN FAVOR OF RELIEVING THIS COURT OF THE OFTEN ARDUOUS TASK OF SEARCHING
THROUGH VOLUMINOUS TRIAL TESTIMONY AND EXHIBITS TO DETERMINE WHETHER A
SINGLE DISTRICT JUDGE'S FINDINGS OF FACT ARE SUPPORTABLE.  THE LEGAL
ISSUES IN MOST CIVIL ANTITRUST CASES ARE NO LONGER SO NOVEL OR
UNSETTLED AS TO MAKE THEM ESPECIALLY APPROPRIATE FOR INITIAL APPELLATE
CONSIDERATION BY THIS COURT, AS COMPARED WITH THOSE IN A VARIETY OF
OTHER AREAS OF FEDERAL LAW.  AND UNDER MODERN CONDITIONS IT MAY WELL BE
DOUBTED WHETHER DIRECT REVIEW OF SUCH CASES BY THIS COURT TRULY SERVES
THE PURPOSE OF EXPEDITION WHICH UNDERLAY THE ORIGINAL PASSAGE OF THE
EXPEDITING ACT.  I VENTURE TO PREDICT THAT A CRITICAL REAPPRAISAL OF
THE PROBLEM WOULD LEAD TO THE CONCLUSION THAT "EXPEDITION" AND ALSO,
OVER-ALL, MORE SATISFACTORY APPELLATE REVIEW WOULD BE ACHIEVED IN THESE
CASES WERE PRIMARY APPELLATE JURISDICTION RETURNED TO THE COURT OF
APPEALS, LEAVING THIS COURT FREE TO EXERCISE ITS CERTIORARI POWER WITH
RESPECT TO PARTICULAR CASES DEEMED DESERVING OF FURTHER REVIEW.  AS
THINGS NOW STAND THIS COURT MUST DEAL WITH ALL GOVERNMENT CIVIL
ANTITRUST CASES, OFTEN EITHER AT THE UNNECESSARY EXPENDITURE OF ITS OWN
TIME OR AT THE RISK OF INADEQUATE APPELLATE REVIEW IF A SUMMARY
DISPOSITION OF THE APPEAL IS MADE.  FURTHER, SUCH A JURISDICTIONAL
CHANGE WOULD BID FAIR TO SATISFY THE VERY "POLICY" ARGUMENTS SUGGESTED
BY THE COURT IN THIS CASE.  FOR THE COURTS OF APPEALS, WHOSE DOCKETS
ARE GENERALLY LESS CROWDED THAN THOSE OF THIS COURT, WOULD THEN BE
AUTHORIZED TO HEAR APPEALS FROM ORDERS SUCH AS THE ONE HERE IN
QUESTION.  SINCE THIS ORDER GRANTS AN INJUNCTION AGAINST INTERLOCKING
INTERESTS BETWEEN BROWN AND KINNEY, IT WOULD COME WITHIN 28 U.S.C. SEC.
1292(A)(1) WERE THIS NOT A CASE "WHERE A DIRECT REVIEW MAY BE HAD IN
THE SUPREME COURT." 

SO LONG, HOWEVER, AS THE PRESENT EXPEDITING ACT CONTINUES TO COMMEND
ITSELF TO CONGRESS THIS COURT IS BOUND BY ITS LIMITATIONS, AND SINCE
FOR THE REASONS ALREADY GIVEN THE DECREE APPEALED CANNOT, IN MY
OPINION, BE PROPERLY CONSIDERED A "FINAL JUDGMENT," I THINK THE APPEAL,
AT THIS JUNCTURE, SHOULD HAVE BEEN DISMISSED. 

              THE MERITS. 

SINCE THE COURT NONETHELESS HOLDS THAT THE JUDGMENT IS APPEALABLE IN
ITS PRESENT FORM, AND SINCE THE UNDERLYING QUESTIONS ARE FAR-REACHING,
I CONSIDER IT A DUTY TO EXPRESS MY VIEW ON THE MERITS.  ON THIS ASPECT
OF THE CASE I JOIN THE DISPOSITION WHICH AFFIRMS THE JUDGMENT OF THE
DISTRICT COURT, THOUGH I AM NOT PREPARED TO SUBSCRIBE TO ALL THAT IS
SAID OR IMPLIED IN THE OPINION OF THIS COURT. 

THE QUESTION PRESENTED BY THIS CASE CAN BE STATED IN NARROW AND
CONCISE TERMS:  ARE THE DISTRICT COURT'S CONCLUSIONS THAT THE EFFECT OF
THE BROWN-KINNEY MERGER MAY BE, IN THE LANGUAGE OF SEC. 7 OF THE
CLAYTON ACT, "SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE
A MONOPOLY" IN "ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY"
SUSTAINABLE?  IN OTHER WORDS, DOES THE INDEFINITE AND GENERAL LANGUAGE
IN SEC. 7 MANIFEST A CONGRESSIONAL PURPOSE TO PROSCRIBE A COMBINATION
OF THIS SORT?   BROWN CONTENDS THAT IN FINDING THE MERGER ILLEGAL THE
DISTRICT COURT LUMPED TOGETHER WHAT ARE IN FACT DISCRETE "LINES OF
COMMERCE," THAT IT FAILED TO DEFINE AN APPROPRIATE "SECTION OF THE
COUNTRY," AND THAT WHEN THE CASE IS PROPERLY VIEWED ANY LESSENING OF
COMPETITION THAT MAY BE CAUSED BY THE MERGER IS NOT "SUBSTANTIAL."  FOR
REASONS STATED BELOW, I THINK THAT EACH OF THESE CONTENTIONS IS
UNTENABLE. 

THE DISPOSITIVE CONSIDERATIONS ARE, I THINK, FOUND IN THE "VERTICAL"
EFFECTS OF THE MERGER, THAT IS, THE EFFECTS REASONABLY TO BE FORESEEN
FROM COMBINING BROWN'S MANUFACTURING FACILITIES WITH KINNEY'S RETAIL
OUTLETS.  IN MY OPINION THE DISTRICT COURT'S CONCLUSIONS AS TO SUCH
EFFECTS ARE SUPPORTED BY THE RECORD, AND SUFFICE TO CONDEMN THE MERGER
UNDER SEC. 7, WITHOUT REGARD TO WHAT MIGHT BE DEEMED TO BE THE
"HORIZONTAL" EFFECTS OF THE TRANSACTION. 

1.  "LINE OF COMERCE."  - IN CONSIDERING BOTH THE HORIZONTAL AND
VERTICAL ASPECTS OF THIS MERGER, THE DISTRICT COURT ANALYZED THE
PROBABLE IMPACT ON COMPETITION IN TERMS OF THREE RELEVANT "LINES OF
COMMERCE" - MEN'S SHOES, WOMEN'S SHOES, AND CHILDREN'S SHOES.  IT
REJECTED BROWN'S CLAIM THAT SHOES OF DIFFERENT CONSTRUCTION OR OF
DIFFERENT PRICE RANGE CONSTITUTED DISTINCT LINES OF COMMERCE.  WHATEVER
MERIT THERE MIGHT BE TO BROWN'S CONTENTION THAT THE PRODUCT MARKET
SHOULD BE MORE NARROWLY DEFINED WHEN IT IS VIEWED FROM THE VANTAGE
POINT OF THE ULTIMATE CONSUMER (WHOSE POCKETBOOK, FOR EXAMPLE, MAY
LIMIT HIS PURCHASE TO A DEFINITE PRICE RANGE), THE SAME IS SURELY NOT
TRUE OF THE SHOE MANUFACTURER.  ALTHOUGH THE RECORD CONTAINS EVIDENCE
TENDING TO PROVE THAT A SHOE MANUFACTURING PLANT MAY BE MANAGED MORE
ECONOMICALLY IF ITS PRODUCTION IS LIMITED TO ONLY ONE TYPE AND GRADE OF
SHOE, THE HISTORY OF BROWN'S OWN FACTORIES REVEALS THAT A SINGLE PLANT
MAY BE USED IN SUCCESSIVE YEARS, OR EVEN AT THE SAME TIME, FOR THE
MANUFACTURE OF VARYING GRADES OF SHOES AND MAY, WITHOUT UNDUE
DIFFICULTY, BE SHIFTED FROM THE PRODUCTION OF CHILDREN'S SHOES TO MEN'S
OR WOMEN'S SHOES, OR VICE VERSA. 

BECAUSE OF THIS FLEXIBILITY OF MANUFACTURE, THE PRODUCT MARKET WITH
RESPECT TO THE MERGER BETWEEN BROWN'S MANUFACTURING FACILITIES AND
KINNEY'S RETAIL OUTLETS MIGHT MORE ACCURATELY BE DEFINED AS THE
COMPLETE WEARING-APPAREL SHOE MARKET, COMBINING IN ONE THE THREE
COMPONENTS WHICH THE DISTRICT COURT TREATED AS SEPARATE LINES OF
COMMERCE.  SUCH AN ANALYSIS, TAKING INTO ACCOUNT THE INTERCHANGEABILITY
OF PRODUCTION, WOULD SEEM A MORE REALISTIC GAUGE OF THE POSSIBLE
ANTICOMPETITIVE EFFECTS IN THE SHOE MANUFACTURING INDUSTRY OF A MERGER
BETWEEN A SHOE MANUFACTURER AND A RETAILER THAN THE DISTRICT COURT'S
COMPARTMENTALIZATION IN TERMS OF THE BUYING PUBLIC.  FOR IF A
MANUFACTURER OF WOMEN'S SHOES IS ABLE, ALBEIT AT SOME EXPENSE, TO
CONVERT HIS PLANT TO THE PRODUCTION OF MEN'S SHOES, THE POSSIBILITY OF
SUCH A SHIFT SHOULD BE CONSIDERED IN DECIDING WHETHER THE MARKET FOR
EITHER MEN'S SHOES OR WOMEN'S SHOES CAN BE MONOPOLIZED OR WHETHER A
PARTICULAR MERGER SUBSTANTIALLY LESSENS COMPETITION AMONG MANUFACTURERS
OF EITHER PRODUCT.  SEE ADELMAN, ECONOMIC ASPECTS OF THE BETHLEHEM
OPINION, 45 VA. L. REV. 684, 689-691; CF. UNITED STATES V. COLUMBIA
STEEL CO., 334 U.S. 495, 510-511; BUT SEE UNITED STATES V. BETHLEHEM
STEEL CORP., 168 F. SUPP. 576, 592. 

THE FACT THAT SEC. 7 SPEAKS OF THE LESSENING OF COMPETITION "IN ANY
LINE OF COMMERCE" DOES NOT, OF COURSE, MEAN THAT THE PRODUCT MARKET ON
WHICH THE EFFECT OF THE MERGER IS CONSIDERED MAY BE DEFINED AS NARROWLY
OR AS BROADLY AS THE GOVERNMENT CHOOSES TO DEFINE IT.  (FN3)  THE DUTY
RESTS WITH THE DISTRICT COURT, AND ULTIMATELY WITH THIS COURT, TO
DETERMINE WHAT IS THE APPROPRIATE MARKET ON AN APPRAISAL OF THE
RELEVANT ECONOMIC CONSIDERATIONS.  DISCOVERING THE PRODUCT MARKET IS "A
NECESSARY PREDICATE TO A FINDING OF A VIOLATION OF THE CLAYTON ACT,"
UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, 593, AND
THE BREADTH OF THE STATUTORY LANGUAGE PROVIDES NO LICENSE FOR AN
ABDICATION OF THIS NECESSARY FUNCTION.  IN LIGHT OF THE PRODUCTION
FLEXIBILITY DEMONSTRATED BY THE UNDISPUTED FACTS IN THIS CASE, I THINK
THE LINE OF COMMERCE BY WHICH THE VERTICAL ASPECTS OF THE BROWN-KINNEY
MERGER SHOULD BE JUDGED IS THE WEARING-APPAREL SHOE INDUSTRY
GENERALLY. 

2.  "SECTION OF THE COUNTRY."  - THIS MERGER INVOLVES NATIONWIDE
CONCERNS WHICH SELL AND PURCHASE SHOES IN VARIOUS LOCALITIES THROUGHOUT
THE COUNTRY, SO THAT IT APPEARS THAT THE MOST SUITABLE GEOGRAPHICAL
MARKET FOR APPRAISING THE ALLEGED ANTICOMPETITIVE EFFECTS OF THE
VERTICAL COMBINATION IS THE NATION AS A WHOLE.  THIS FINDING OF THE
DISTRICT COURT (LIMITED TO THE VERTICAL ASPECT OF THE MERGER) IS NOT
CONTESTED BY BROWN AND IS PROPERLY ACCEPTED HERE.  ONE CAVEAT IS IN
ORDER, HOWEVER.  IN JUDGING THE ANTICOMPETITIVE EFFECT OF THE MERGER ON
THE NATIONAL MARKET, IT MUST BE RECOGNIZED THAT ANY DECLINE IN
COMPETITION THAT MIGHT RESULT NEED NOT HAVE A UNIFORM EFFECT THROUGHOUT
THE ENTIRE COUNTRY.  IT IS SUFFICIENT IF THE RECORD PROVES THAT AS A
RESULT OF THE MERGER COMPETITION WILL GENERALLY BE LESSENED, THOUGH ITS
MOST SERIOUS IMPACT MAY BE FELT IN CERTAIN LOCALITIES. 

3.  "SUBSTANTIALLY TO LESSEN COMPETITION."  - THE REMAINING QUESTION
IS WHETHER THE MERGER OF BROWN'S MANUFACTURING FACILITIES WITH KINNEY'S
RETAIL OUTLETS "MAY  ...  SUBSTANTIALLY LESSEN COMPETITION" OR "TEND TO
CREATE A MONOPOLY" IN THE NATIONWIDE MARKET IN WHICH SHOE MANUFACTURERS
SELL TO SHOE RETAILERS.  THE FINDINGS OF THE DISTRICT COURT, SUPPORTED
BY THE EVIDENCE, WHEN TAKEN TOGETHER WITH UNDISPUTED FACTS APPEARING IN
THE RECORD, JUSTIFY THE CONCLUSION THAT A SUBSTANTIAL LESSENING OF
COMPETITION IN THE RELEVANT MARKET IS A "REASONBLE PROBABILITY."  S.
REP. NO. 1775, 81ST CONG., 2D SESS. 6 (1950). 

ON THE DATE OF THE MERGER KINNEY'S RETAIL STORES NUMBERED 352, AND
THIS FIGURE HAD INCREASED TO MORE THAN 400 BY THE TIME OF THE TRIAL. 
NEARLY ALL THESE STORES SELL MEN'S, WOMEN'S, AND CHILDREN'S SHOES AND
ARE LOCATED IN THE DOWNTOWN AREAS OF CITIES OF AT LEAST 10,000
POPULATION.  IN 116 OF THESE CITIES, KINNEY'S COMBINED PAIRAGE SALE OF
SHOES FOR 1955 EXCEEDED 10% OF ALL SHOES SOLD IN THE CITY DURING THE
YEAR.  ITS TOTAL RETAIL SHOE SALES DURING THE YEAR CONSTITUTED 1.2% OF
THE NATIONAL TOTAL IN TERMS OF DOLLAR VOLUME AND 1.6% IN TERMS OF
PAIRAGE.  OF THESE SHOES, ONLY 20% WERE SUPPLIED BY THE KINNEY
MANUFACTURING PLANTS, THE REMAINDER COMING FROM SOME 197 OTHER
SOURCES.  (FN4) 

PRIOR TO 1955 KINNEY HAD BOUGHT NONE OF ITS OUTSIDE-SOURCE SHOES FROM
BROWN, AND ITS RECORDS FOR 1955 REVEAL THAT THE YEAR'S PURCHASES WERE
MADE FROM A DIVERSE NUMBER OF INDEPENDENT SHOE MANUFACTURERS.  THERE
WERE 66 SUPPLIERS (INCLUDING BROWN) IN THAT YEAR EACH OF WHOSE TOTAL
SALES TO KINNEY EXCEEDED $50,000, AND ONLY THREE OF THESE (BROWN,
ENDICOTT-JOHNSON CO., AND GEORGIA SHOE MANUFACTURING CO.)  WERE LARGE
COMPANIES WHOSE OUTPUT PLACED THEM AMONG THE 25 MOST PRODUCTIVE
NONRUBBER SHOE MANUFACTURERS IN THE UNITED STATES.  CONSEQUENTLY, IT
APPEARS THAT KINNEY WAS A SUBSTANTIAL PURCHASER OF THE SHOES PRODUCED
BY MANY SMALL INDEPENDENT SHOE MANUFACTURERS THROUGHOUT THE COUNTRY. 
IN FACT, THE RECORD AFFIRMATIVELY SHOWS THAT AT LEAST FIVE OF KINNEY'S
SUPPLIERS, THREE OF WHICH ARE LOCATED IN THE STATE OF NEW YORK, ONE IN
PENNSYLVANIA, AND ONE IN NEW HAMPSHIRE, EACH RELIED UPON KINNEY TO
PURCHASE MORE THAN 40% OF ITS TOTAL PRODUCTION IN 1955. 

THAT THE MERGER BETWEEN BROWN'S SHOE PRODUCTION PLANTS AND KINNEY'S
RETAIL OUTLETS WILL TEND TO FORECLOSE SOME OF THE LARGE MARKET WHICH
SMALLER SHOE MANUFACTURERS FOUND IN SALES TO KINNEY HARDLY SEEMS OPEN
TO DOUBT.  THIS CONCLUSION IS SUPPORTED BY THE FOLLOWING FACTS WHICH
EMERGE INDISPUTABLY FROM THE RECORD:  (1) IN THE SHOE INDUSTRY, AS IN
MANY OTHERS, THE PURCHASE OF A RETAIL CHAIN BY A MANUFACTURER RESULTS
IN AN INCREASED FLOW OF THE PURCHASING MANUFACTURER'S SHOES TO THE
RETAIL STORE.  HENCE INDEPENDENT SHOE MANUFACTURERS FIND IT MORE
DIFFICULT TO SELL THEIR SHOES TO AN ACQUIRED RETAIL CHAIN THAN TO AN
INDEPENDENT ONE.  (2) THE RESULT OF BROWN'S EARLIER ACQUISITION OF TWO
RETAIL CHAINS WAS, IN EACH INSTANCE, A SUBSTANTIAL INCREASE IN THE
QUANTITY OF BROWN SHOE PURCHASES BY THE PREVIOUSLY INDEPENDENT CHAINS. 
(FN5)  (3) THE HISTORY OF MANY OF BROWN'S PLANTS PROVES THAT THEY MAY
BE READILY ADAPTED TO THE PRODUCTION OF THE GRADE AND STYLE OF SHOES
CUSTOMARILY SOLD IN KINNEY STORES.  (FN6)  (4) ALTHOUGH BROWN SUPPLIED
NONE OF KINNEY'S REQUIREMENTS BEFORE THE MERGER, IT WAS SUPPLYING
ALMOST 8% OF THESE REQUIREMENTS JUST TWO YEARS THEREAFTER. 

THE DOLLAR VOLUME OF KINNEY'S OUTSIDE SHOE PURCHASES IN 1955 WAS
BETWEEN 16 AND 17 MILLION DOLLARS, AND THIS AMOUNT HAD INCREASED TO
19.4 MILLION BY 1957.  WHILE KINNEY WAS MAKING ONLY ABOUT 1.2% OF THE
TOTAL RETAIL DOLLAR SALES IN THE UNITED STATES IN 1955, THAT PERCENTAGE
CAN HARDLY BE DEEMED AN ACCURATE REFLECTION OF ITS PROPORTION OF
NATIONWIDE SHOE PURCHASES BY RETAILERS SINCE THE RETAIL-SALES FIGURE IS
BASED ON A COMPUTATION THAT INCLUDES ALL RETAIL STORES, WHETHER OR NOT
THEY WERE VERTICALLY INTEGRATED OR OTHERWISE AFFILIATED.  IN TERMS OF
AVAILABLE MARKETS FOR INDEPENDENT SHOE MANUFACTURERS, THE PERCENTAGE OF
KINNEY'S PURCHASES MUST HAVE BEEN SUBSTANTIALLY LARGER - THOUGH THE
PRECISE FIGURE IS UNAVAILABLE ON THE RECORD BEFORE US.  (FN7)    IF THE
CONTROLLING TEST WERE, AS IT MAY BE UNDER THE SIMILAR LANGUAGE OF SEC.
3 OF THE CLAYTON ACT, ONE OF "QUANTITATIVE SUBSTANTIALITY," COMPARE
STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293, WITH TAMPA ELECTRIC
CO. V. NASHVILLE COAL CO., 365 U.S. 320, THE PROBABLE FORECLOSURE OF
INDEPENDENT MANUFACTURERS FROM THIS SUBSTANTIAL SHARE OF THE AVAILABLE
RETAIL SHOE MARKET WOULD BE ENOUGH TO RENDER THE VERTICAL ASPECT OF
THIS MERGER UNLAWFUL UNDER SEC. 7.  BUT SINCE THE MERGER CAN BE SHOWN
TO HAVE AN INJURIOUS EFFECT ON COMPETITION AMONG MANUFACTURERS AND
AMONG RETAILERS, IT IS UNNECESSARY TO CONSIDER WHETHER THE STANDARD
STATIONS FORMULA IS APPLICABLE. 

THE VERTICAL AFFILIATION BETWEEN THIS SHOE MANUFACTURER AND A
PRIMARILY RETAIL ORGANIZATION IS SURELY NOT, AS THE DISSENTERS THOUGHT
THE CONTRACTUAL TIE IN STANDARD STATIONS TO BE, "A DEVICE FOR WAGING
COMPETITION" RATHER THAN " DEVICE FOR SUPPRESSING COMPETITION."  337
U.S., AT 323.  SINCE BROWN IS ABLE BY REASON OF THIS MERGER TO TURN AN
INDEPENDENT PURCHASER INTO A CAPTIVE MARKET FOR ITS SHOES IT INEVITABLY
DIMINISHES THE AVAILABLE MARKET FOR WHICH SHOE MANUFACTURERS COMPETE. 
IF BROWN SHOES REPLACE THOSE WHICH HAD BEEN PREVIOUSLY PRODUCED BY
OTHERS, THE DISPLACED MANUFACTURERS HAVE NO CHOICE BUT TO ENTER SOME
OTHER MARKET OR GO OUT OF BUSINESS.  SINCE ALL MANUFACTURERS, INCLUDING
BROWN, HAD COMPETED FOR KINNEY'S PATRONAGE WHEN IT WAS UNAFFILIATED,
BROWN'S MERGER WITH KINNEY POTENTIALLY WITHDRAWS A SHARE OF THE MARKET
PREVIOUSLY AVAILABLE TO THE INDEPENDENT SHOE MANUFACTURERS. 

NOT ONLY MAY THIS MERGER, JUDGED FROM A VERTICAL STANDPOINT, AFFECT
MANUFACTURERS WHO COMPETE WITH BROWN; IT MAY ALSO ADVERSELY AFFECT
COMPETITION ON THE RETAILING LEVEL.  WITH A LARGE MANUFACTURER SUCH AS
BROWN BEHIND IT, THE KINNEY CHAIN WOULD HAVE A GREAT COMPETITIVE
ADVANTAGE OVER THE RETAIL STORES WITH WHICH IT VIES FOR CONSUMER
PATRONAGE.  AS A MANUFACTURER-OWNED OUTLET, THE KINNEY STORE WOULD
DOUBTLESS BE ABLE TO SELL ITS SHOES AT A LOWER PROFIT MARGIN AND
OUTLAST AN INDEPENDENT COMPETITOR.  THE MERGER WOULD ALSO EFFECTIVELY
PREVENT THE RETAIL COMPETITOR FROM DEALING IN BROWN SHOES, SINCE THESE
MIGHT BE OFFERED AT LOWER PRICES IN KINNEY STORES THAN ELSEWHERE. 
(FN8) 

BROWN CONTENDS THAT EVEN IF THESE ANTICOMPETITIVE EFFECTS ARE
PROBABLE, THEY TOUCH UPON AN INSIGNIFICANT SHARE OF THE MARKET AND ARE
NOT, THEREFORE, "SUBSTANTIAL" WITHIN THE MEANING OF SEC. 7.  OUR
DECISION IN TAMPA ELECTRIC CO. V. NASHVILLE COAL CO., 365 U.S. 320, IS
CITED AS AUTHORITY FOR THE PROPOSITION THAT A FORECLOSURE OF ABOUT 1%
OF THE RELEVANT MARKET IS NECESSARILY INSUBSTANTIAL.  BUT THE OPINION
IN TAMPA ELECTRIC CAREFULLY NOTED THAT "SUBSTANTIALITY IN A GIVEN CASE"
DEPENDS ON A VARIETY OF FACTORS.  365 U.S., AT 329.  TWO OF THE
CONSIDERATIONS THAT WERE MENTIONED WERE "THE RELATIVE STRENGTH OF THE
PARTIES" AND "THE PROBABLE IMMEDIATE AND FUTURE EFFECTS WHICH PRE
EMPTION OF THAT SHARE OF THE MARKET MIGHT HAVE ON EFFECTIVE COMPETITION
THEREIN."  IBID. WHEN, AS HERE, THE FORECLOSURE OF WHAT MAY BE
CONSIDERED A SMALL PERCENTAGE OF RETAILERS' PURCHASES MAY BE CAUSED BY
THE COMBINATION OF THE COUNTRY'S THIRD LARGEST SELLER OF SHOES WITH THE
COUNTRY'S LARGEST FAMILY-STYLE SHOE STORE CHAIN, AND WHEN THE VOLUME OF
THE LATTER'S PURCHASES FROM INDEPENDENT MANUFACTURERS IN VARIOUS PARTS
OF THE COUNTRY IS LARGE ENOUGH TO RENDER IT PROBABLE THAT THESE
SUPPLIERS, IF DISPLACED, WILL HAVE TO FALL BY THE WAYSIDE, IT CANNOT,
IN MY OPINION, BE SAID THAT THE EFFECT ON THE SHOE INDUSTRY IS "REMOTE"
OR "INSUBSTANTIAL." 

I REACH THIS RESULT WITHOUT CONSIDERING THE FINDINGS OF THE DISTRICT
COURT RESPECTING THE TREND IN THE SHOE INDUSTRY TOWARDS "OLIGOPOLY" AND
VERTICAL INTEGRATION.  THE STATISTICS IN THE RECORD FALL SHORT OF
CONVINCING ME THAT ANY SUCH TREND EXISTS.  (FN9)  I CONSIDER THE
DISTRICT COURT'S JUDGMENT WARRANTED APART FROM THESE FINDINGS. 

ACCORDINGLY, BOWING TO THE COURT'S DECISION THAT THE CASE IS PROPERLY
BEFORE US, I JOIN THE JUDGMENT OF AFFIRMANCE. 

FN1  "A FINAL JUDGMENT IS ONE WHICH DISPOSES OF THE WHOLE SUBJECT,
GIVES ALL THE RELIEF THAT WAS CONTEMPLATED, PROVIDES WITH REASONABLE
COMPLETENESS, FOR GIVING EFFECT TO THE JUDGMENT AND LEAVES NOTHING TO
BE DONE IN THE CAUSE SAVE TO SUPERINTEND, MINISTERIALLY, THE EXECUTION
OF THE DECREE."  CITY OF LOUISA V. LEVI, 140 F.2D 512, 514.  SEE, E.G.,
GRANT V. PHOENIX INS. CO., 106 U.S. 429; TAYLOR V. BOARD OF EDUCATION,
288 F.2D 600. 

FN2  FOR EXAMPLE, THE REPORT WHICH ACCOMPANIED THE 1925 ACT TO THE
FLOOR OF THE SENATE SAID OF THE CASES IN WHICH DIRECT APPEAL FROM A
DISTRICT COURT TO THE SUPREME COURT WAS RETAINED:  "AS IS WELL KNOWN,
THERE ARE CERTAIN CASES WHICH, UNDER THE PRESENT LAW, MAY BE TAKEN
DIRECTLY FROM THE DISTRICT COURT TO THE SUPREME COURT.  WITHOUT
ENTERING INTO A DESCRIPTION OF THESE FOUR CLASSES OF CASES, IT IS
SUFFICIENT TO SAY THAT UNDER THE EXISTING LAW THESE ARE CASES WHICH
MUST BE HEARD BY THREE JUDGES, ONE OF WHOM IS A CIRCUIT JUDGE."  S.
REP. NO. 362, 68TH CONG., 1ST SESS. 3 (1924).  THIS GENERALIZATION WAS
OBVIOUSLY ERRONEOUS SINCE THE EXPEDITING ACT PROVIDED FOR DIRECT REVIEW
IN THIS COURT OF GOVERNMENT ANTITRUST CASES DECIDED BY A SINGLE
DISTRICT JUDGE. 

FN3  AS THE COURT NOTED IN UNITED STATES V. E.I. DU PONT DE NEMOURS &
CO., 351 U.S. 377, 393, "ONE CAN THEORIZE THAT WE HAVE MONOPOLISTIC
COMPETITION IN EVERY NONSTANDARDIZED COMMODITY WITH EACH MANUFACTURER
HAVING POWER OVER THE PRICE AND PRODUCTION OF HIS OWN PRODUCT."  IF THE
GOVERNMENT WERE PERMITTED TO CHOOSE ITS "LINE OF COMMERCE" IT COULD
PRESUMABLY DRAW THE MARKET NARROWLY IN A CASE THAT TURNS ON THE
EXISTENCE VEL NON OF MONOPOLY POWER AND DRAW IT BROADLY WHEN THE
QUESTION IS WHETHER BOTH PARTIES TO A MERGER ARE WITHIN THE SAME
COMPETITIVE MARKET. 

FN4  THE SCHEDULE IN THE RECORD OF KINNEY'S OUTSIDE SHOE SUPPLIERS
FOR THE CALENDAR YEAR 1955 LISTS 319 VENDORS, BUT 122 OF THESE SUPPLIED
LESS THAN $1,000 WORTH OF GOODS DURING THE YEAR. 

FN5  IN 1951 BROWN PURCHASED THE WOHL SHOE COMPANY, WHICH OPERATED
LEASED SHOE DEPARTMENTS IN DEPARTMENT STORES THROUGHOUT THE COUNTRY. 
BEFORE ITS ACQUISITION OF WOHL, BROWN HAD SUPPLIED 12.8% OF WOHL'S SHOE
REQUIREMENTS; BY 1957, IT WAS SUPPLYING 33.6% OF WOHL'S NEEDS. 

IN 1953, BROWN PURCHASED A PARTIAL INTEREST IN A SMALL CHAIN OF
RETAIL STORES IN LOS ANGELES KNOWN AS WETHERBY-KAYSER.   BEFORE THIS
PURCHASE, BROWN HAD SUPPLIED 10.4% OF WETHERBY'S SHOES; WITHIN ONE YEAR
THIS PERCENTAGE INCREASED TO ALMOST 50%. 

FN6  IN ADDITION, IT APPEARS FROM THE RECORD THAT SHORTLY AFTER THE
MERGER WAS EFFECTED, KINNEY ABANDONED ITS EARLIER POLICY OF SELLING
ONLY KINNEY-BRAND SHOES (80% OF WHICH WERE "MADE UP" FOR IT BY ITS
MANUFACTURERS) AND BEGAN SELLING A CONSIDERABLE NUMBER OF BROWN'S
BRANDED AND ADVERTISED SHOES.  ALONG WITH THE INDICATIONS IN THE RECORD
THAT KINNEY WAS BEGINNING ALSO TO SELL HIGHER-PRICED SHOES IN ITS
SUBURBAN OUTLETS, THIS SUGGESTS THAT BROWN COULD SUPPLY MUCH OF
KINNEY'S NEEDS WITH ONLY A MINIMAL ADDITIONAL CAPITAL INVESTMENT. 

FN7  THE EXISTENCE OF SUCH GAPS IN THE RECORD MAKE A FAIR ASSESSMENT
OF THE EFFECTS OF THIS MERGER MORE DIFFICULT THAN IT WOULD OTHERWISE
BE.  ONE OF THE REASONS WHY I WOULD NOT CONSIDER THE HORIZONTAL ASPECT
OF THIS MERGER IS MY CONVICTION THAT THE DATA SUPPLIED BY THE
GOVERNMENT IS ENTIRELY INADEQUATE FOR A PROPER EVALUATION OF THE IMPACT
OF THE HORIZONTAL MERGER ON COMPETITION. 

FN8  THE CHANGE IN KINNEY POLICY WHEREBY IT NOW CARRIES SHOES BEARING
THE BROWN BRAND (SEE NOTE 6, SUPRA) TENDS TO MAKE RETAILER COMPETITION
STILL MORE DIFFICULT. 

FN9  IN TERMS OF BARE NUMBERS, THE QUANTITY OF RETAIL OUTLETS OWNED OR
CONTROLLED BY THE MAJOR MANUFACTURERS HAS UNDOUBTEDLY BEEN INCREASING
SINCE 1947.  BUT MUCH OF THE DATA IN THE RECORD IS INCOMPLETE IN THIS
REGARD BECAUSE IT IS BASED ON VARYING STANDARDS.  THUS, WHILE THE
GOVERNMENT ARGUES THAT THE INCREASE IN PERCENTAGE OF NATIONAL RETAIL
SALES BY SHOE CHAINS OWNING 101 OR MORE OUTELTS FROM 20.9% IN 1948 TO
25.5% IN 1954 PROVES THE TREND TOWARD "OLIGOPOLY," THE APPELLANT'S
STATISTICS, FOUNDED UPON RETAIL SALES BY ALL OUTLETS (INCLUDING GENERAL
MERCHANDISE AND CLOTHING STORES), SHOW THAT RETAIL SALES BY CHAINS OF
11 OR MORE STOOD AT A CONSTANT 19.5% OF NATIONAL DOLLAR VOLUME IN BOTH
1948 AND 1954.  MOREOVER, THE APPARENT DECLINE IN THE PROPORTIONAL
SHARE OF THE COUNTRY'S SHOE NEEDS SUPPLIED BY THE LARGEST MANUFACTURERS
BETWEEN 1947 AND 1955 BELIES ANY CLAIM THAT SHOE PRODUCTION IS BECOMING
"OLIGOPOLISTIC."  WHEREAS THE LARGEST FOUR MANUFACTURERS SUPPLIED 25.9%
OF THE NATION'S NEEDS IN 1947, THE LARGEST EIGHT SUPPLIED 31.4%, AND
THE LARGEST 15 SUPPLIED 36.2%, IN 1955 THE EQUIVALENT PERCENTAGES WERE
22%, 27%, AND 32.5%. 

THERE IS NO SUGGESTION IN THE RECORD AS TO WHETHER EARLIER PURCHASES
OF RETAIL CHAINS BY SHOE MANUFACTURERS REDUCED THE NUMBER OF
INDEPENDENT MANUFACTURERS OR OTHERWISE HARMED COMPETITION. 
CONSEQUENTLY, WHILE THE RECORD DOES ESTABLISH THAT MANUFACTURERS HAVE
BEEN INCREASING THE NUMBER OF THEIR RETAIL OUTLETS, IT IS ENTIRELY
SILENT ON THE EFFECTS OF THIS VERTICAL EXPANSION. 
..END :



















WOOD V. GEORGIA 370 U.S. 375 


NO. 369.  ARGUED MARCH 29, 1962.  - DECIDED JUNE 25, 1962.  - 103 GA.
APP. 305, 119 S.E.2D 261, REVERSED. 


IN THE MIDST OF A LOCAL POLITICAL CAMPAIGN, A COUNTY JUDGE, IN THE
PRESENCE OF REPRESENTATIVES OF NEWS MEDIA ASSEMBLED AT TH  JUDGE'S
REQUEST, ISSUED A CHARGE TO A GRAND JURY GIVING IT SPECIAL INSTRUCTIONS
TO INVESTIGATE RUMORS AND ACCUSATIONS OF ALLEGED BLOC VOTING BY NEGROES
AND THE RUMORED USE OF MONEY BY POLITICAL CANDIDATES TO OBTAIN THEIR
VOTES.  THE NEXT DAY, WHILE THE GRAND JURY WAS IN SESSION, PETITIONER,
AN ELECTED SHERIFF WHO WAS A CANDIDATE FOR REELECTION, ISSUED FROM HIS
OFFICE IN THE SAME BUILDING A PRESS STATEMENT CRITICIZING THE JUDGE'S
ACTION AND URGING CITIZENS TO TAKE NOTICE WHEN THEIR JUDGES THREATENED
POLITICAL INTIMIDATION AND PERSECUTION OF VOTERS UNDER THE GUISE OF LAW
ENFORCEMENT.  PETITIONER WAS CITED IN THE COUNTY COURT FOR CONTEMPT, ON
THE GROUND THAT HIS STATEMENT WAS CALCULATED TO BE CONTEMPTUOUS OF THE
COURT AND TO OBSTRUCT THE GRAND JURY IN ITS INVESTIGATION AND THAT IT
CONSTITUTED A "CLEAR, PRESENT AND IMMINENT DANGER" TO THE
ADMINISTRATION OF JUSTICE.  PETITIONER ISSUED A FURTHER STATEMENT
REPEATING SUBSTANTIALLY HIS EARLIER CHARGES AND ASSERTING THAT HIS
DEFENSE WOULD BE THAT HE HAD SPOKEN THE TRUTH.  THE CONTEMPT CITATION
WAS THEN AMENDED BY THE ADDITION OF ANOTHER COUNT BASED ON THIS LATTER
STATEMENT AND A CHARGE THAT IT CONSTITUTED A CLEAR AND PRESENT DANGER
TO THE GRAND JURY INVESTIGATION AND TO THE DISPOSITION OF THE CONTEMPT
CITATION AGAINST HIM.  WITHOUT MAKING ANY FINDINGS OR GIVING ANY
REASONS FOR ITS CONCLUSION THAT HIS CONDUCT ACTUALLY OBSTRUCTED THE
GRAND JURY OR CONTEMPT PROCEEDINGS, THE TRIAL COURT ADJUDGED PETITIONER
GUILTY OF CONTEMPT AND SENTENCED HIM TO FINE AND IMPRISONMENT.  HELD:
THE RECORD DOES NOT SUPPORT A FINDING THAT PETITIONER'S STATEMENTS
PRESENTED A CLEAR AND PRESENT DANGER TO THE ADMINISTRATION OF JUSTICE;
AND HIS CONVICTION VIOLATED HIS RIGHT TO FREEDOM OF SPEECH GUARANTEED
BY THE FIRST AND FOURTEENTH AMENDMENTS.  PP. 376-395. 

WOOD V. GEORGIA. 

CERTIORARI TO THE COURT OF APPEALS OF GEORGIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO CONSIDER THE SCOPE OF THE CONSTITUTIONAL
PROTECTION TO BE ENJOYED BY PERSONS WHEN THE PUBLICATION OF THEIR
THOUGHTS AND OPINIONS IS ALLEGED TO BE IN CONFLICT WITH THE FAIR
ADMINISTRATION OF JUSTICE IN STATE COURTS.  THE PETITIONER, AN ELECTED
SHERIFF IN BIBB COUNTY, GEORGIA, CONTENDS THAT THE GEORGIA COURTS, IN
HOLDING HIM IN CONTEMPT OF COURT FOR EXPRESSING HIS PERSONAL IDEAS ON A
MATTER THAT WAS PRESENTLY BEFORE THE GRAND JURY FOR ITS CONSIDERATION,
HAVE ABRIDGED HIS LIBERTY OF FREE SPEECH AS PROTECTED BY THE FIRST
AMENDMENT AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION. 

ON JUNE 6, 1960, A JUDGE OF THE BIBB SUPERIOR COURT ISSUED A CHARGE
TO A REGULARLY IMPANELED GRAND JURY, GIVING IT SPECIAL INSTRUCTIONS TO
CONDUCT AN INVESTIGATION INTO A POLITICAL SITUATION WHICH HAD ALLEGEDLY
ARISEN IN THE COUNTY.  THE JURY WAS ADVISED THAT THERE APPEARED TO BE
"AN INANE AND INEXPLICABLE PATTERN OF NEGRO BLOC VOTING" IN BIBB
COUNTY, AND THAT "RUMORS AND ACCUSATIONS" HAD BEEN MADE WHICH INDICATED
CANDIDATES FOR PUBLIC OFFICE HAD PAID LARGE SUMS OF MONEY IN AN EFFORT
TO GAIN FAVOR AND TO OBTAIN THE NEGRO VOTE.  THE CHARGE EXPLAINED THAT
CERTAIN NEGRO LEADERS, AFTER HAVING MET AND ENDORSED A CANDIDATE, HAD
SWITCHED THEIR SUPPORT TO AN OPPOSING CANDIDATE WHO PUT UP A LARGE SUM
OF MONEY, AND THAT THIS "CREATED AN UNHEALTHY, DANGEROUS, AND UNLAWFUL
SITUATION WHICH TENDED TO CORRUPT PUBLIC OFFICE HOLDERS AND SOME
CANDIDATES FOR PUBLIC OFFICE."  THE CHARGE CONTINUED BY INDICATING THE
VIOLATIONS OF LAW WHICH WOULD BE INVOLVED SHOULD THE GRAND JURY FIND
THE CHARGES TO BE FOUNDED IN TRUTH.  (FN1)  IN ADDITION, CERTAIN
QUESTIONS WERE POSED TO THE JURY WHICH IT WAS TO INVESTIGATE IN
INQUIRING INTO THE CHARGES OF ELECTION LAW VIOLATIONS.  (FN2)  THE
INSTRUCTIONS WERE GIVEN IN THE MIDST OF A LOCAL POLITICAL CAMPAIGN AND
THE JUDGE, IN ORDER TO PUBLICIZE THE INVESTIGATION, REQUESTED REPORTERS
FOR ALL LOCAL NEWS MEDIA TO BE PRESENT IN THE COURTROOM WHEN THE CHARGE
WAS DELIVERED. 

THE FOLLOWING DAY, WHILE THE GRAND JURY WAS IN SESSION INVESTIGATING
THE MATTERS SET FORTH IN THE INSTRUCTIONS DELIVERED BY THE COURT, THE
PETITIONER ISSUED TO THE LOCAL PRESS A WRITTEN STATEMENT IN WHICH HE
CRITICIZED THE JUDGES' ACTION AND IN WHICH HE URGED THE CITIZENRY TO
TAKE NOTICE WHEN THEIR HIGHEST JUDICIAL OFFICERS THREATENED POLITICAL
INTIMIDATION AND PERSECUTION OF VOTERS IN THE COUNTY UNDER THE GUISE OF
LAW ENFORCEMENT.  THIS NEWS RELEASE, WHICH WAS PUBLISHED AND
DISSEMINATED TO THE GENERAL PUBLIC, STATED: 

"WHATEVER THE JUDGES' INTENTION, THE ACTION  ...  ORDERING THE GRAND
JURY  ... TO INVESTIGATE 'NEGRO BLOCK VOTING' WILL BE CONSIDERED ONE OF
THE MOST DEPLORABLE EXAMPLES OF RACE AGITATION TO COME OUT OF MIDDLE
GEORGIA IN RECENT YEARS. 

"AT A TIME WHEN ALL THINKING PEOPLE WANT TO PRESERVE THE GOOD WILL
AND COOPERATION BETWEEN THE RACES IN BIBB COUNTY, THIS ACTION APPEARS
EITHER AS A CRUDE ATTEMPT AT JUDICIAL INTIMIDATION OF NEGRO VOTERS AND
LEADERS, OR, AT BEST, AS AGITATION FOR A 'NEGRO VOTE' ISSUE IN LOCAL
POLITICS. 

"NO ONE WOULD QUESTION THE DUTY OF A GRAND JURY TO INVESTIGATE ANY
AND ALL ELECTION LAW VIOLATIONS.  HOWEVER, SIMPLE JUSTICE WOULD DEMAND
THAT THE JUDGE NOT SINGLE OUT THE NEGRO PEOPLE FOR PARTICULAR
INVESTIGATION  ...  . 

     *         *         *         *         * 

"NEGRO PEOPLE WILL FIND LITTLE DIFFERENCE IN PRINCIPLE BETWEEN
ATTEMPTED INTIMIDATION OF THEIR PEOPLE BY JUDICIAL SUMMONS AND INQUIRY
AND ATTEMPTED INTIMIDATION BY PHYSICAL DEMONSTRATION SUCH AS USED BY
THE K.K.K. 

"IT IS HOPED THAT THE PRESENT GRAND JURY WILL NOT LET ITS HIGH OFFICE
BE A PARTY TO ANY POLITICAL ATTEMPT TO INTIMIDATE THE NEGRO PEOPLE IN
THIS COMMUNITY. 

"IT SEEMS INCREDIBLE THAT ALL THREE OF OUR SUPERIOR COURT JUDGES, WHO
THEMSELVES HOLD HIGH POLITICAL OFFICE, ARE SO POLITICALLY NAIVE AS TO
ACTUALLY BELIEVE THAT THE NEGRO VOTERS IN BIBB COUNTY SELL THEIR VOTES
IN ANY FASHION, EITHER TO CANDIDATES FOR OFFICE OR TO SOME NEGRO
LEADERS. 

"IF ANYONE IN THE COMMUNITY SHOULD BE FREE OF RACIAL PREJUDICE, IT
SHOULD BE OUR JUDGES.  IT IS SHOCKING TO FIND A JUDGE CHARGING A GRAND
JURY IN THE STYLE AND LANGUAGE OF A RACE BAITING CANDIDATE FOR
POLITICAL OFFICE. 

     *         *         *         *         * 

"HOWEVER POLITICALLY POPULAR THE JUDGES ACTION MAY BE AT THIS TIME,
THEY ARE EMPLOYING A PRACTICE FAR MORE DANGEROUS TO FREE ELECTIONS THAN
ANYTHING THEY WANT INVESTIGATED. 

                                             "JAMES I. WOOD." 

THE FOLLOWING DAY, THE PETITIONER DELIVERED TO THE BAILIFF OF THE
COURT, STATIONED AT THE ENTRANCE TO THE GRAND JURY ROOM, "AN OPEN
LETTER TO THE BIBB COUNTY GRAND JURY," WHICH WAS MADE AVAILABLE TO THE
GRAND JURY AT PETITIONER'S REQUEST.  THIS LETTER, IMPLYING THAT THE
COURT'S CHARGE WAS FALSE, ASSERTED THAT IN THE PETITIONER'S OPINION,
THE BIBB COUNTY DEMOCRATIC EXECUTIVE COMMITTEE WAS THE ORGANIZATION
RESPONSIBLE FOR CORRUPTION IN THE PURCHASING OF VOTES, AND THAT THE
GRAND JURY WOULD BE WELL-ADVISED ALSO TO INVESTIGATE THAT
ORGANIZATION. 

A MONTH LATER, ON JULY 7, 1960, THE PETITIONER WAS CITED IN TWO
COUNTS OF CONTEMPT BASED ON THE ABOVE STATEMENTS.  THE CITATION CHARGED
THAT THE LANGUAGE USED BY THE PETITIONER WAS DESIGNED AND CALCULATED TO
BE CONTEMPTUOUS OF THE COURT, TO RIDICULE THE INVESTIGATION ORDERED BY
THE CHARGE, AND "TO HAMPER, HINDER, INTERFERE WITH AND OBSTRUCT" THE
GRAND JURY IN ITS INVESTIGATION.  IT ALSO ALLEGED THAT THE NEWS RELEASE
WAS ISSUED FROM THE BIBB COUNTY SHERIFF'S OFFICE, LOCATED IN THE
COURTHOUSE IN WHICH THE GRAND JURY HAD BEEN CHARGED AND WHERE IT WAS
DELIBERATING, AND THAT THE LANGUAGE IMPUTED LACK OF JUDICIAL INTEGRITY
TO THE THREE JUDGES OF THE COURT RESPONSIBLE FOR THE CHARGE.  AN
AMENDMENT TO THE CITATION ALLEGED THAT THE STATEMENTS "IN AND OF
THEMSELVES CREATED  ...  A CLEAR, PRESENT AND IMMINENT DANGER TO THE
INVESTIGATION BEING CONDUCTED  ...  AND  ...  TO THE PROPER
ADMINISTRATION OF JUSTICE IN BIBB SUPERIOR COURT." 

THE NEXT DAY THE PETITIONER ISSUED A FURTHER PRESS RELEASE IN WHICH
HE REPEATED SUBSTANTIALLY THE CHARGES HE HAD MADE IN THE RELEASE ON
JUNE 7, AND IN WHICH HE ASSERTED THAT HIS DEFENSE TO THE CONTEMPT
CITATION WOULD BE THAT HE HAD SPOKEN THE TRUTH.  THE CONTEMPT CITATION
WAS THEREUPON AMENDED BY INCLUDING A THIRD COUNT BASED ON THIS LATTER
STATEMENT.  THE THIRD COUNT CONTAINED THE SAME ALLEGATIONS AS THE OTHER
COUNTS AND, IN ADDITION, CHARGED THAT THE PETITIONER'S ACTION PRESENTED
A CLEAR AND PRESENT DANGER TO THE HANDLING OF THE CONTEMPT CITATION
AGAINST THE PETITIONER. 

AT A HEARING BEFORE THE TRIAL JUDGE, (FN3) CERTAIN FACTS WERE
STIPULATED:  THAT THE PETITIONER'S STATEMENTS WERE MADE WHILE THE GRAND
JURY WAS IN SESSION INVESTIGATING MATTERS SUGGESTED IN THE CHARGE BY
THE COURT; THAT THE GRAND JURY HAD BEFORE IT THE VOTING TABULATIONS AND
OTHER DOCUMENTS, INCLUDING ENDORESEMENTS BY CERTAIN POLITICAL GROUPS
RELATING TO PRIMARIES AND ELECTIONS IN WHICH THE PETITIONER
PARTICIPATED AS A CANDIDATE AND AS AN ACTIVE SUPPORTER FOR OTHER
CANDIDATES; AND THAT THE MEMBERS OF THE GRAND JURY AND THE JUDGES
THEMSELVES HAD SEEN AND READ THE PRESS RELEASES ISSUED BY THE
PETITIONER.  IN ADDITION, IT WAS STIPULATED THAT THE PETITIONER'S SWORN
RESPONSE BE ADMITTED AS EVIDENCE.  THE ALLEGATIONS IN THIS RESPONSE,
WHICH MUST BE CONSIDERED AS TRUE IN THE ABSENCE OF CONTRARY EVIDENCE
AND IN THE ABSENCE OF FINDINGS OF FACT BY THE TRIAL JUDGE, INCLUDED THE
VERIFICATION THAT THE STATEMENTS WERE MADE BY PETITIONER IN HIS
CAPACITY AS A PRIVATE CITIZEN AND NOT AS SHERIFF OF THE COUNTY; THAT
PETITIONER WAS DIRECTLY AND PERSONALLY INTERESTED IN THE OUTCOME OF THE
CURRENT PRIMARY ELECTION NOT ONLY AS A PRIVATE CITIZEN BUT ALSO AS AN
ANNOUNCED CANDIDATE FOR PUBLIC OFFICE IN THE GENERAL ELECTION TO BE
HELD THE FOLLOWING NOVEMBER, AND IN WHICH ELECTION THE PETITIONER WOULD
BE RUNNING AGAINST THE CONTESTANT WHO PREVAILED IN THE DEMOCRATIC
PRIMARY; THAT HE BELIEVED THE LANGUAGE EMPLOYED IN THE CHARGE WAS OF
SUCH A NATURE THAT IT TENDED TO CREATE OR EMPHASIZE ISSUES LIKELY TO
HAVE A DRASTIC IMPACT UPON THE OUTCOME OF THE PRIMARY; THAT HIS PURPOSE
IN ISSUING THE STATEMENTS WAS SIMPLY TO INFORM THE PUBLIC OF WHAT HE
SINCERELY BELIEVED TO BE THE OTHER SIDE OF THE ISSUE CREATED BY THE
CHARGE; AND THAT THE STATEMENTS WERE NOT INTENDED TO BE CONTEMPTUOUS OF
THE COURT OR TO HINDER THE INVESTIGATION.  THE PETITIONER ALSO ASSERTED
THAT HE ADOPTED THE SAME METHOD OF DISTRIBUTING HIS VIEWS TO THE
GENERAL PUBLIC AS DID THE COURT IN DISSEMINATING THE GRAND JURY
CHARGE.  NO WITNESSES WERE PRESENTED AT THE HEARING AND NO EVIDENCE WAS
INTRODUCED TO SHOW THAT THE PUBLICATIONS RESULTED IN ANY ACTUAL
INTERFERENCE OR OBSTRUCTION OF THE COURT OR THE WORK OF THE GRAND
JURY.  THE GRAVAMEN OF THE CONTEMPT CITATION, AND OF THE STATE'S CASE
AGAINST THE PETITIONER, WAS THAT THE MERE PUBLISHING OF THE NEWS
RELEASE AND DEFENSE STATEMENT CONSTITUTED A CONTEMPT OF COURT, AND IN
AND OF ITSELF WAS A CLEAR AND PRESENT DANGER TO THE ADMINISTRATION OF
JUSTICE. 

THE TRIAL COURT, WITHOUT MAKING ANY FINDINGS AND WITHOUT GIVING ANY
REASONS, ADJUDGED PETITIONER GUILTY ON ALL COUNTS AND IMPOSED
CONCURRENT SENTENCES OF 20 DAYS AND SEPARATE FINES OF $200 ON EACH. 
ON WRIT OF ERROR TO THE COURT OF APPEALS THE CONVICTIONS ON COUNTS ONE
AND THREE WERE AFFIRMED AND THE CONVICTION ON COUNT TWO, BASED ON THE
OPEN LETTER TO THE GRAND JURY, WAS REVERSED.  WOOD V. GEORGIA, 103 GA.
APP. 305, 119 S.E.2D 261.  AFTER THE GEORGIA SUPREME COURT, WITHOUT
OPINION, DECLINED TO REVIEW THE CONVICTIONS ON THE FIRST AND THIRD
COUNTS, THE PETITIONER SOUGHT A WRIT OF CERTIORARI TO THIS COURT WHICH
WE GRANTED.  368 U.S. 894. 

WE START WITH THE PREMISE THAT THE RIGHT OF COURTS TO CONDUCT THEIR
BUSINESS IN AN UNTRAMMELED WAY LIES AT THE FOUNDATION OF OUR SYSTEM OF
GOVERNMENT AND THAT COURTS NECESSARILY MUST POSSESS THE MEANS OF
PUNISHING FOR CONTEMPT WHEN CONDUCT TENDS DIRECTLY TO PREVENT THE
DISCHARGE OF THEIR FUNCTIONS.  WHILE COURTS HAVE CONTINUOUSLY HAD THE
AUTHORITY AND POWER TO MAINTAIN ORDER IN THEIR COURTROOMS AND TO ASSURE
LITIGANTS A FAIR TRIAL, THE EXERCISE OF THAT BARE CONTEMPT POWER IS NOT
WHAT IS QUESTIONED IN THIS CASE.  HERE IT IS ASSERTED THAT THE EXERCISE
OF THE CONTEMPT POWER, TO COMMIT A PERSON TO JAIL FOR AN UTTERANCE OUT
OF THE PRESENCE OF THE COURT, HAS ABRIDGED THE ACCUSED'S LIBERTY OF
FREE EXPRESSION.  IN THIS SITUATION THE BURDEN UPON THIS COURT IS TO
DEFINE THE LIMITATIONS UPON THE CONTEMPT POWER ACCORDING TO THE TERMS
OF THE FEDERAL CONSTITUTION. 

IN BRIDGES V. CALIFORNIA, 314 U.S. 252, THIS COURT FOR THE FIRST TIME
HAD OCCASION TO REVIEW A STATE'S EXERCISE OF THE CONTEMPT POWER
UTILIZED TO PUNISH THE PUBLISHER OF AN OUT-OF-COURT STATEMENT.  THE
ACCUSED CONTENDED THAT THE EXERCISE ABRIDGED HIS RIGHT OF FREE SPEECH
GUARANTEED AGAINST STATE INFRINGEMENT BY THE FOURTEENTH AMENDMENT. 
(FN4)  TO DETERMINE THE SCOPE OF THIS CONSTITUTIONAL PROTECTION, THE
COURT REVIEWED THE HISTORY OF THE CONTEMPT POWER, BOTH IN ENGLAND AND
IN THIS COUNTRY.  IT HELD THAT "THE ONLY CONCLUSION SUPPORTED BY THAT
HISTORY IS THAT THE UNQUALIFIED PROHIBITIONS LAID DOWN BY THE FRAMERS
WERE INTENDED TO GIVE TO LIBERTY OF THE PRESS, AS TO THE OTHER
LIBERTIES, THE BROADEST SCOPE THAT COULD BE COUNTENANCED IN AN ORDERLY
SOCIETY."  ID., AT 265.  (FN5)  THUS CLARIFYING THE EXERCISE OF THIS
JUDICIAL POWER IN THE CONTEXT OF THE PROTECTIONS ASSURED BY THE FIRST
AMENDMENT, THE COURT HELD THAT OUT-OF-COURT PUBLICATIONS WERE TO BE
GOVERNED BY THE CLEAR AND PRESENT DANGER STANDARD, DESCRIBED AS "A
WORKING PRINCIPLE THAT THE SUBSTANTIVE EVIL MUST BE EXTREMELY SERIOUS
AND THE DEGREE OF IMMINENCE EXTREMELY HIGH BEFORE UTTERANCES CAN BE
PUNISHED."  ID., AT 263.  (FN6)  SUBSEQUENTLY, IN PENNEKAMP V. FLORIDA,
328 U.S. 331, AFTER NOTING THAT "FREE DISCUSSION OF THE PROBLEMS OF
SOCIETY IS A CARDINAL PRINCIPLE OF AMERICANISM - A PRINCIPLE WHICH ALL
ARE ZEALOUS TO PRESERVE" (ID., AT 346), THE COURT REAFFIRMED ITS BELIEF
THAT THE "ESSENTIAL RIGHT OF THE COURTS TO BE FREE OF INTIMIDATION AND
COERCION  ...  IS CONSONANT WITH A RECOGNITION THAT FREEDOM OF THE
PRESS MUST BE ALLOWED IN THE BROADEST SCOPE COMPATIBLE WITH THE
SUPREMACY OF ORDER."  ID., AT 334.  (FN7)  THE COURT'S LAST OCCASION TO
CONSIDER THE APPLICATION OF THE CLEAR AND PRESENT DANGER PRINCIPLE TO A
CASE OF THE TYPE UNDER REVIEW WAS IN CRAIG V. HARNEY, 331 U.S. 367. 
THERE THE COURT HELD THAT TO WARRANT A SANCTION "THE FIRES WHICH THE
EXPRESSION KINDLES MUST CONSTITUTE AN IMMINENT, NOT MERELY A LIKELY,
THREAT TO THE ADMINISTRATION OF JUSTICE.  THE DANGER MUST NOT BE REMOTE
OR EVEN PROBABLE; IT MUST IMMEDIATELY IMPERIL."  ID., AT 376.  (FN8) 

IT IS WITH THESE PRINCIPLES IN MIND THAT WE CONSIDER THE CASE BEFORE
US.  INITIALLY, HOWEVER, IT SHOULD BE NOTED THAT THE GEORGIA COURTS
HAVE DETERMINED THAT THE POWER TO PUNISH FOR CONTEMPT OF COURT IS
INHERENT IN ITS STATE JUDICIARY (FN9) AND THE COURT OF APPEALS THUS
IGNORED THE EXPRESS LIMITATIONS IMPOSED BY THE GEORGIA LEGISLATURE IN
PUNISHING OUT-OF-COURT STATEMENTS.  (FN10)  THIS HOLDING THUS DEPRIVES
THE JUDGMENT OF COMING TO THIS COURT "ENCASED IN THE ARMOR WROUGHT BY
PRIOR LEGISLATIVE DELIBERATION," BRIDGES V. CALIFORNIA, SUPRA, AT 261,
AND IT IS UPON THIS BASIS THAT WE PROCEED.    THIS CASE DIFFERS FROM
BRIDGES AND PENNEKAMP, FIRST, IN THAT THE COURT BELOW HAS UPHELD
PETITIONER'S CONVICTION ON THE BASIS THAT HIS CONDUCT PRESENTED A CLEAR
AND PRESENT DANGER TO THE PROCEEDINGS OF THE COURT AND GRAND JURY, A
STANDARD THIS COURT HAS HELD TO WARRANT PUNISHMENT FOR ALLEGED
CONTEMPTUOUS CONDUCT.  BUT STATE COURTS MAY NOT PRECLUDE US FROM OUR
RESPONSIBILITY TO EXAMINE "THE EVIDENCE TO SEE WHETHER IT FURNISHES A
RATIONAL BASIS FOR THE CHARACTERIZATION PUT ON IT" (IN RE SAWYER, 360
U.S. 622, 628) BY THE ENUNCIATION OF A CONSTITUTIONALLY ACCEPTABLE
STANDARD IN DESCRIBING THE EFFECT OF THE CONDUCT.  THE ULTIMATE
RESPONSIBILITY TO DEFINE THE LIMITS OF STATE POWER REGARDING FREEDOM OF
SPEECH AND EXPRESSION RESTS WITH THIS COURT, PENNEKAMP V. FLORIDA,
SUPRA, AT 335; SEE CHAMBERS V. FLORIDA, 309 U.S. 227, 228-229; FISKE V.
KANSAS, 274 U.S. 380, 385-386; AND WHEN IT IS CLAIMED THAT SUCH
LIBERTIES HAVE BEEN ABRIDGED, WE CANNOT ALLOW A PRESUMPTION OF VALIDITY
OF THE EXERCISE OF STATE POWER TO INTERFERE WITH OUR CLOSE EXAMINATION
OF THE SUBSTANTIVE CLAIM PRESENTED.  (FN11) 

DESPITE ITS CONCLUSION THAT THE PETITIONER'S CONDUCT CREATED A
SERIOUS EVIL TO THE FAIR ADMINISTRATION OF JUSTICE, THE COURT OF
APPEALS DID NOT CITE OR DISCUSS THE BRIDGES, PENNEKEMP OR HARNEY CASES,
NOR DID IT DISPLAY AN AWARENESS OF THE STANDARDS ENUNCIATED IN THOSE
CASES TO SUPPORT A FINDING OF CLEAR AND PRESENT DANGER.  (FN12)  IT
SIMPLY ADOPTED AS CONCLUSIONS OF LAW THE ALLEGATIONS MADE IN THE
CONTEMPT CITATION.  THE COURT DID NOT INDICATE IN ANY MANNER HOW THE
PUBLICATIONS INTERFERED WITH THE GRAND JURY'S INVESTIGATION, OR WITH
THE ADMINISTRATION OF JUSTICE.  UNLIKE THOSE CASES IN WHICH ELABORATE
FINDINGS HAVE BEEN MADE TO SUPPORT SUCH A CONCLUSION, (FN13) THIS
RECORD IS BARREN OF SUCH FINDINGS.  THE PROSECUTION CALLED NO WITNESSES
TO SHOW THAT THE FUNCTIONING OF THE JURY WAS IN ANY WAY DISTURBED; NO
SHOWING WAS MADE THAT THE MEMBERS OF THE GRAND JURY, UPON READING THE
PETITIONER'S COMMENTS IN THE NEWSPAPERS, FELT UNABLE OR UNWILLING TO
COMPLETE THEIR ASSIGNED TASK BECAUSE PETITIONER "INTERFERED" WITH ITS
COMPLETION.  (FN14)  THERE IS NOTHING IN THE RECORD TO INDICATE THAT
THE INVESTIGATION WAS NOT ULTIMATELY SUCCESSFUL OR, IF IT WAS NOT, THAT
THE PETITIONER'S CONDUCT WAS RESPONSIBLE FOR ITS FAILURE.  AND TO THE
EXTENT THAT THE CONVICTION ON THE THIRD COUNT WAS UPHELD BECAUSE
PETITIONER'S LAST STATEMENT PRESENTED A CLEAR AND PRESENT DANGER TO THE
CONTEMPT HEARING, IT IS INDEED NOVEL THAT UNDER THE CIRCUMSTANCES OF
THIS CASE THE PETITIONER MIGHT BE RESPONSIBLE FOR A SUBSTANTIAL
INTERFERENCE WITH HIS CONTEMPT HEARING BECAUSE HE HAD MADE PUBLIC HIS
DEFENSE TO THE CHARGES MADE AGAINST HIM.  WHAT INTERFERENCE TO
PETITIONER'S HEARING OR WHAT HARM THIS ASSERTION MIGHT INFLICT ON THE
ADMINISTRATION OF JUSTICE IS NOT STATED IN THE OPINION.  NOR IS THERE
ANY EVIDENCE OF EITHER IN THE RECORD.  (FN15) 

THUS WE HAVE SIMPLY BEEN TOLD, AS A MATTER OF LAW WITHOUT FACTUAL
SUPPORT, THAT IF A STATE IS UNABLE TO PUNISH PERSONS FOR EXPRESSING
THEIR VIEWS ON MATTERS OF GREAT PUBLIC IMPORTANCE WHEN THOSE MATTERS
ARE BEING CONSIDERED IN AN INVESTIGATION BY THE GRAND JURY, A CLEAR AND
PRESENT DANGER TO THE ADMINISTRATION OF JUSTICE WILL BE CREATED.  WE
FIND NO SUCH DANGER IN THE RECORD BEFORE US.  THE TYPE OF "DANGER"
EVIDENCED BY THE RECORD IS PRECISELY ONE OF THE TYPE OF ACTIVITY
ENVISIONED BY THE FOUNDERS IN PRESENTING THE FIRST AMENDMENT FOR
RATIFICATION.  "THOSE WHO WON OUR INDEPENDENCE HAD CONFIDENCE IN THE
POWER OF FREE AND FEARLESS REASONING AND COMMUNICATION OF IDEAS TO
DISCOVER AND SPREAD POLITICAL  ...  TRUTH."  THORNHILL V. ALABAMA, 310
U.S. 88, 95.  IN THORNHILL THE COURT ALSO REITERATED THE THINKING OF
THE FOUNDERS WHEN IT SAID THAT A BROAD CONCEPTION OF THE FIRST
AMENDMENT IS NECESSARY: 

"TO SUPPLY THE PUBLIC NEED FOR INFORMATION AND EDUCATION WITH RESPECT
TO THE SIGNIFICANT ISSUES OF THE TIMES.  (FOOTNOTE OMITTED.)  ...
FREEDOM OF DISCUSSION, IF IT WOULD FULFILL ITS HISTORIC FUNCTION IN
THIS NATION, MUST EMBRACE ALL ISSUES ABOUT WHICH INFORMATION IS NEEDED
OR APPROPRIATE TO ENABLE THE MEMBERS OF SOCIETY TO COPE WITH THE
EXIGENCIES OF THEIR PERIOD."  ID., AT 102.  (FN16) 

MEN ARE ENTITLED TO SPEAK AS THEY PLEASE ON MATTERS VITAL TO THEM;
ERRORS IN JUDGMENT OR UNSUBSTANTIATED OPINIONS MAY BE EXPOSED, OF
COURSE, BUT NOT THROUGH PUNISHMENT FOR CONTEMPT FOR THE EXPRESSION. 
UNDER OUR SYSTEM OF GOVERNMENT, COUNTERARGUMENT AND EDUCATION ARE THE
WEAPONS AVAILABLE TO EXPOSE THESE MATTERS, NOT ABRIDGMENT OF THE RIGHTS
OF FREE SPEECH AND ASSEMBLY.  CF. MR. JUSTICE BRANDEIS, CONCURRING IN
WHITNEY V. CALIFORNIA, 274 U.S. 357, 378.  HENCE, IN THE ABSENCE OF
SOME OTHER SHOWING OF A SUBSTANTIVE EVIL ACTUALLY DESIGNED TO IMPEDE
THE COURSE OF JUSTICE IN JUSTIFICATION OF THE EXERCISE OF THE CONTEMPT
POWER TO SILENCE THE PETITIONER, HIS UTTERANCES ARE ENTITLED TO BE
PROTECTED. 

THE RESPONDENT ATTEMPTS TO DISTINGUISH THIS CASE FROM BRIDGES BY
OFFERING, AS SUPPORT FOR THE GEORGIA COURT'S CONCLUSION THAT THE
PETITIONER'S CONDUCT PRESENTED A CLEAR AND PRESENT DANGER TO THE
ADMINISTRATION OF JUSTICE, THE FACT THAT HERE THERE WAS AN ALLEGED
INTERFERENCE WITH A GRAND JURY AND NOT AN ATTEMPT TO INFLUENCE OR
COERCE A JUDGE.  IN THE CIRCUMSTANCES OF THIS CASE, WE FIND THIS
ARGUMENT UNPERSUASIVE. 

FIRST, IT IS IMPORTANT TO EMPHASIZE THAT THIS CASE DOES NOT REPRESENT
A SITUATION WHERE AN INDIVIDUAL IS ON TRIAL; THERE WAS NO "JUDICIAL
PROCEEDING PENDING" IN THE SENSE THAT PREJUDICE MIGHT RESULT TO ONE
LITIGANT OR THE OTHER BY ILL-CONSIDERED MISCONDUCT AIMED AT INFLUENCING
THE OUTCOME OF A TRIAL OR A GRAND JURY PROCEEDING.  COMPARE SMITH V.
TEXAS, 311 U.S. 128; CHAMBERS V. FLORIDA, 309 U.S. 227; PIERRE V.
LOUISIANA, 306 U.S. 354; TUMEY V. OHIO, 273 U.S. 510; AND MOORE V.
DEMPSEY, 261 U.S. 86.  MOREOVER, WE NEED NOT PAUSE HERE TO CONSIDER THE
VARIANT FACTORS THAT WOULD BE PRESENT IN A CASE INVOLVING A PETIT
JURY.  NEITHER BRIDGES, PENNEKAMP NOR HARNEY INVOLVED A TRIAL BY JURY. 
IN BRIDGES IT WAS NOTED THAT "TRIALS ARE NOT LIKE ELECTIONS, TO BE WON
THROUGH THE USE OF THE MEETING-HALL, THE RADIO, AND THE NEWSPAPER" (314
U.S., AT 271), AND OF COURSE THE LIMITATIONS ON FREE SPEECH ASSUME A
DIFFERENT PROPORTION WHEN EXPRESSION IS DIRECTED TOWARD A TRIAL AS
COMPARED TO A GRAND JURY INVESTIGATION.  RATHER, THE GRAND JURY HERE
WAS CONDUCTING A GENERAL INVESTIGATION INTO A MATTER TOUCHING EACH
MEMBER OF THE COMMUNITY. 

HISTORICALLY, THIS BODY HAS BEEN REGARDED AS A PRIMARY SECURITY TO
THE INNOCENT AGAINST HASTY, MALICIOUS AND OPPRESSIVE PERSECUTION; IT
SERVES THE INVALUABLE FUNCTION IN OUR SOCIETY OF STANDING BETWEEN THE
ACCUSER AND THE ACCUSED, WHETHER THE LATTER BE AN INDIVIDUAL, MINORITY
GROUP, OR OTHER, TO DETERMINE WHETHER A CHARGE IS FOUNDED UPON REASON
OR WAS DICTATED BY AN INTIMIDATING POWER OR BY MALICE AND PERSONAL ILL
WILL.  (FN17)  PARTICULARLY IN MATTERS OF LOCAL POLITICAL CORRUPTION
AND INVESTIGATIONS IS IT IMPORTANT THAT FREEDOM OF COMMUNICATION BE
KEPT OPEN AND THAT THE REAL ISSUES NOT BECOME OBSCURED TO THE GRAND
JURY.  IT CANNOT EFFECTIVELY OPERATE IN A VACUUM.  IT HAS BEEN SAID
THAT THE "ANCESTORS OF OUR 'GRAND JURORS' ARE FROM THE FIRST NEITHER
EXACTLY ACCUSERS, NOR EXACTLY WITNESSES, THEY ARE TO GIVE VOICE TO
COMMON REPUTE."  2 POLLOCK AND MAITLAND, HISTORY OF THE ENGLISH LAW (2D
ED. 1909), 642.  THE NECESSITY TO SOCIETY OF AN INDEPENDENT AND
INFORMED GRAND JURY BECOMES READILY APPARENT IN THE CONTEXT OF THE
PRESENT CASE.  FOR HERE A PANEL OF JUDGES, THEMSELVES ELECTED OFFICERS
AND CHARGED UNDER STATE LAW WITH THE RESPONSIBILITY OF INSTRUCTING A
GRAND JURY TO INVESTIGATE POLITICAL CORRUPTION, HAVE EXERCISED THE
CONTEMPT POWER TO HOLD IN CONTEMPT ANOTHER ELECTED REPRESENTATIVE OF
THE PEOPLE FOR PUBLISHING VIEWS HONESTLY HELD AND CONTRARY TO THOSE
CONTAINED IN THE CHARGE.  AND, AN EFFORT BY THE PETITIONER TO PROVE THE
TRUTH OF HIS ALLEGATIONS WAS REJECTED, THE COURT HOLDING IRRELEVANT THE
TRUTH OR FALSITY OF THE FACTS AND OPINIONS EXPRESSED IN THE
PUBLICATIONS.  103 GA. APP. 305, 321, 119 S.E.2D 261, 273.  IF THE
PETITIONER COULD BE SILENCED IN THIS MANNER, THE PROBLEM TO THE PEOPLE
IN THE STATE OF GEORGIA AND INDEED IN ALL THE STATES BECOMES EVIDENT. 

THE ADMINISTRATION OF THE LAW IS NOT THE PROBLEM OF THE JUDGE OR
PROSECUTING ATTORNEY ALONE, BUT NECESSITATES THE ACTIVE COOPERATION OF
AN ENLIGHTENED PUBLIC.  NOTHING IS TO BE GAINED BY AN ATTITUDE ON THE
PART OF THE CITIZENRY OF CIVIC IRRESPONSIBILITY AND APATHY IN VOICING
THEIR SENTIMENTS ON COMMUNITY PROBLEMS.  THE PETITIONER'S ATTACK ON THE
CHARGE TO THE GRAND JURY WOULD HAVE BEEN LIKELY TO HAVE AN IMPEDING
INFLUENCE ON THE OUTCOME OF THE INVESTIGATION ONLY IF THE CHARGE WAS SO
MANIFESTLY UNJUST THAT IT COULD NOT STAND INSPECTION.  (FN18)  IN THIS
SENSE DISCUSSION SERVES AS A CORRECTIVE FORCE TO POLITICAL, ECONOMIC
AND OTHER INFLUENCES WHICH ARE INEVITABLY PRESENT IN MATTERS OF GRAVE
IMPORTANCE.  THE CHARGE GIVEN TO THE JURY INDICATED THAT THE MOTIVATION
FOR IT WAS FOUNDED ON RUMOR, BUT THAT THE SITUATION HAD EXISTED FOR
SEVERAL YEARS.  YET THE CHARGE WAS DIRECTED PRIMARILY AGAINST ONE GROUP
IN THE COMMUNITY AND WAS GIVEN AT THE HEIGHT OF THE HIGHLY IMPORTANT
DEMOCRATIC PRIMARY, IN WHICH, BECAUSE OF THEIR ELECTED POSITIONS, BOTH
THE JUDGES AND THE PETITIONER WERE INTERESTED PERSONALLY AND APART FROM
THEIR OFFICIAL STATUS.  THE FIRST AMENDMENT ENVISIONS THAT PERSONS BE
GIVEN THE OPPORTUNITY TO INFORM THE COMMUNITY OF BOTH SIDES OF THE
ISSUE UNDER SUCH CIRCUMSTANCES.  THAT THIS PRIVILEGE SHOULD NOT LIGHTLY
BE CURTAILED IS ABLY EXPRESSED IN A PASSAGE FROM JUDGE COOLEY'S 2
CONSTITUTIONAL LIMITATIONS (8TH ED. 1927) 885, WHERE HE STATED THAT THE
PURPOSE OF THE FIRST AMENDMENT INCLUDES THE NEED: 

"  ...  TO PROTECT PARTIES IN THE FREE PUBLICATION OF MATTERS OF
PUBLIC CONCERN, TO SECURE THEIR RIGHT TO A FREE DISCUSSION OF PUBLIC
EVENTS AND PUBLIC MEASURES, AND TO ENABLE EVERY CITIZEN AT ANY TIME TO
BRING THE GOVERNMENT AND ANY PERSON IN AUTHORITY TO THE BAR OF PUBLIC
OPINION BY ANY JUST CRITICISM UPON THEIR CONDUCT IN THE EXERCISE OF THE
AUTHORITY WHICH THE PEOPLE HAVE CONFERRED UPON THEM." 

MOREOVER, IT IS DIFFICULT TO IMAGINE HOW THE VOTING PROBLEM MAY BE
ALLEVIATED BY AN ABRIDGMENT OF TALK AND COMMENT REGARDING ITS
SOLUTION.  THIS PROBLEM IS IMPORTANT NOT ONLY TO AN INDIVIDUAL OR SOME
ISOLATED GROUP OR TO INDIVIDUAL LITIGANTS IN A PARTICULAR LAWSUIT, BUT
AFFECTS THE ENTIRE NATION.  WHEN THE GRAND JURY IS PERFORMING ITS
INVESTIGATORY FUNCTION INTO A GENERAL PROBLEM AREA, WITHOUT SPECIFIC
REGARD TO INDICTING A PARTICULAR INDIVIDUAL, SOCIETY'S INTEREST IS BEST
SERVED BY A THOROUGH AND EXTENSIVE INVESTIGATION, AND A GREATER DEGREE
OF DISINTERESTEDNESS AND IMPARTIALITY IS ASSURED BY ALLOWING FREE
EXPRESSION OF CONTRARY OPINION.  CONSISTENT SUPPRESSION OF DISCUSSION
LIKELY TO AFFECT PENDING INVESTIGATIONS WOULD MEAN THAT SOME CONTINUING
PUBLIC GRIEVANCES COULD NEVER BE DISCUSSED AT ALL, OR AT LEAST NOT AT
THE MOMENT WHEN PUBLIC DISCUSSION IS MOST NEEDED.  THE CONVICTION HERE
PRODUCES ITS "RESTRICTIVE RESULTS AT THE PRECISE TIME WHEN PUBLIC
INTEREST IN THE MATTERS DISCUSSED WOULD NATURALLY BE AT ITS HEIGHT,"
AND "NO SUGGESTION CAN BE FOUND IN THE CONSTITUTION THAT THE FREEDOM
THERE GUARANTEED FOR SPEECH AND THE PRESS BEARS AN INVERSE RATIO TO THE
TIMELINESS AND IMPORTANCE OF THE IDEAS SEEKING EXPRESSION."  BRIDGES V.
CALIFORNIA, SUPRA, AT 268, 269.  THUS, IN THE ABSENCE OF ANY SHOWING OF
AN ACTUAL INTERFERENCE WITH THE UNDERTAKINGS OF THE GRAND JURY, THIS
RECORD LACKS PERSUASION IN ILLUSTRATING THE SERIOUS DEGREE OF HARM TO
THE ADMINISTRATION OF LAW NECESSARY TO JUSTIFY EXERCISE OF THE CONTEMPT
POWER.  COMPARE CRAIG V. HARNEY, 331 U.S. 367, 376, 378; PENNEKAMP V.
FLORIDA, 328 U.S. 331, 349-350. 

FINALLY, WE ARE TOLD BY THE RESPONDENT THAT, BECAUSE THE PETITIONER
IS SHERIFF OF BIBB COUNTY AND THEREBY OWES A SPECIAL DUTY AND
RESPONSIBILITY TO THE COURT AND ITS JUDGES, HIS RIGHT TO FREEDOM OF
EXPRESSION MUST BE MORE SEVERELY CURTAILED THAN THAT OF AN AVERAGE
CITIZEN.  UNDER THE CIRCUMSTANCES OF THIS CASE, THIS ARGUMENT MUST BE
REJECTED. 

FIRST, ALTHOUGH WE DO NOT RELY ON THE POINT EXCLUSIVELY, WE NOTED AT
THE OUTSET OF THIS OPINION THAT THERE WAS NO FINDING BY THE TRIAL COURT
THAT THE PETITIONER ISSUED THE STATEMENTS IN HIS CAPACITY AS SHERIFF;
IN FACT, THE ONLY EVIDENCE IN THE RECORD ON THIS POINT IS THE
PETITIONER'S ALLEGATION IN HIS RESPONSE, ACCEPTED AS EVIDENCE BY THE
TRIAL COURT AND UNCONTROVERTED BY THE RESPONDENT, THAT THE STATEMENTS
WERE DISTRIBUTED BY PETITIONER AS A PRIVATE CITIZEN.  NOWHERE IN THE
RECORD, INCLUDING THE CONTEMPT CITATION AS TWICE AMENDED, CAN WE FIND
ONE WORD INDICATING THAT THE PROSECUTION RELIED ON THE FACT THAT
PETITIONER WAS SHERIFF TO SHOW A MORE SUBSTANTIAL LIKELIHOOD THAT HIS
CONDUCT WOULD DISRUPT THE ADMINISTRATION OF JUSTICE.  (FN19)  THE
OPINION OF THE COURT OF APPEALS DOES NOT ARTICULATE ANY SPECIFIC
RELIANCE ON THIS FACT, (FN20) AND RESPONSES TO OUR INQUIRIES ON THIS
SUBJECT DURING ORAL ARGUMENT WERE NOT ILLUMINATING.  MOREOVER, THE TWO
COUNTS BEFORE US WERE BASED ON OUT-OF-COURT PUBLICATIONS WHICH THE
PETITIONER SIGNED WITHOUT REFERENCE TO HIS OFFICIAL CAPACITY.  ONLY IN
THE LETTER SENT DIRECTLY TO THE GRAND JURY ROOM DID THE PETITIONER
INDICATE IN THE STATEMENT THAT HE WAS SHERIFF, AND THE COURT OF APPEALS
HELD THAT THIS STATEMENT DID NOT PRESENT A CLEAR AND PRESENT DANGER TO
THE ADMINISTRATION OF THE LAW.  IN THE LIGHT OF THIS FINDING IT IS
DIFFICULT TO UNDERSTAND HOW THE FACT THAT THE PETITIONER WAS SHERIFF OF
THE COUNTY CAN BE CONSIDERED SIGNIFICANT AS TO HIS NEWS RELEASES. 
HOWEVER, ASSUMING THAT THE COURT OF APPEALS DID CONSIDER TO BE
SIGNIFICANT THE FACT THAT PETITIONER WAS A SHERIFF, WE DO NOT BELIEVE
THIS FACT PROVIDES ANY BASIS FOR CURTAILING HIS RIGHT OF FREE SPEECH. 
THERE IS NO EVIDENCE THAT THE PUBLICATIONS INTERFERED WITH THE
PERFORMANCE OF HIS DUTIES AS SHERIFF OR WITH HIS DUTIES, IF ANY HE HAD,
IN CONNECTION WITH THE GRAND JURY'S INVESTIGATION.  WE ARE NOT DEALING
WITH A SITUATION WHERE A SHERIFF REFUSES TO ISSUE SUMMONSES OR TO
MAINTAIN ORDER IN THE COURT BUILDING; NOR, SO FAR AS THE RECORD SHOWS,
DID THE PETITIONER DO ANY ACT WHICH MIGHT PRESENT A SUBSTANTIVE HARM TO
THE JURY'S SOLUTION OF THE PROBLEM PLACED BEFORE IT.  WE ARE DEALING
HERE ONLY WITH PUBLIC EXPRESSION. 

THE PETITIONER WAS AN ELECTED OFFICIAL AND HAD THE RIGHT TO ENTER THE
FIELD OF POLITICAL CONTROVERSY, PARTICULARLY WHERE HIS POLITICAL LIFE
WAS AT STAKE.  (FN21)  CF.  IN RE SAWYER, 360 U.S. 622.  THE ROLE THAT
ELECTED OFFICIALS PLAY IN OUR SOCIETY MAKES IT ALL THE MORE IMPERATIVE
THAT THEY BE ALLOWED FREELY TO EXPRESS THEMSELVES ON MATTERS OF CURRENT
PUBLIC IMPORTANCE. 

OUR EXAMINATION OF THE CONTENT OF PETITIONER'S STATEMENTS AND THE
CIRCUMSTANCES UNDER WHICH THEY WERE PUBLISHED LEADS US TO CONCLUDE THAT
THEY DID NOT PRESENT A DANGER TO THE ADMINISTRATION OF JUSTICE THAT
SHOULD VITIATE HIS FREEDOM TO EXPRESS HIS OPINIONS IN THE MANNER
CHOSEN.  THE JUDGMENT IS REVERSED. 

FN1  THE GEORGIA LEGISLATURE HAS PROVIDED THAT IT SHALL BE A
MISDEMEANOR FOR ANY PERSON TO "BUY OR SELL, OR OFFER TO BUY OR SELL, A
VOTE, OR TO  ...  BE IN ANY WAY CONCERNED IN BUYING OR SELLING, OR
CONTRIBUTE MONEY OR ANY OTHER THING OF VALUE FOR THE PURPOSE OF BUYING
A VOTE AT ANY ELECTION  ... ."  GA. CODE ANN., SEC. 34-9907.  SEE ALSO
GA. CODE ANN., SEC. 34-1907, INCLUDED IN THE COURT'S CHARGE. 

FN2  MORE FULLY, THE CHARGE, IN RELEVANT PART, CONTAINED THE
FOLLOWING: 

"GENTLEMEN OF THE GRAND JURY: 

"THE SPECIAL INSTRUCTIONS NOW ABOUT TO BE GIVEN TO YOU WERE
DETERMINED UPON AND FORMULATED BY ALL OF THE JUDGES OF THIS COURT EN
BANC AFTER JOINT CONSULTATIONS AND ARE FULLY SANCTIONED BY ALL THE
JUDGES. 

 *         *         *         *         * 

"A SITUATION HAS ARISEN IN BIBB COUNTY OVER THE LAST FEW YEARS WHICH
THIS COURT FEELS SHOULD BE THOROUGHLY AND COMPLETELY INVESTIGATED BY
THE GRAND JURY  ...  . 

"IN ELECTION AFTER ELECTION WHERE NO RACIAL ISSUES ARE INVOLVED, AND
WHERE THERE ARE NO OTHER ISSUES INVOLVED WHICH COULD POSSIBLY CAUSE ANY
PARTICULAR GROUP TO BE HONESTLY CONCERNED ABOUT SUPPORTING OR OPPOSING
ANY PARTICULAR CANDIDATE, WE FIND WHAT APPEARS AN INANE AND
INEXPLICABLE PATTERN OF NEGRO BLOC VOTING. 

"NOW THERE IS AN ANSWER TO THE EXISTING SITUATION WHICH SHOULD BE
BROUGHT TO LIGHT SO THAT PEOPLE OF THIS COMMUNITY MAY UNDERSTAND WHAT
IS GOING ON IN SOME OF OUR ELECTIONS, AND DO SOMETHING ABOUT IT.  THE
PEOPLE ARE ENTITLED TO KNOW HOW ONE CANDIDATE OR ANOTHER IS ABLE TO
GATHER TO HIMSELF THOUSANDS OF NEGRO VOTES IN BLOC WHERE THERE IS NO
APPARENT REASON FOR IT. 

     *         *         *         *        * 

"THIS GRAND JURY IS HEREBY INSTRUCTED BY THE COURT TO INVESTIGATE AND
EXAMINE INTO THE FACTS OF EVERY ELECTION OF EVERY KIND IN THIS COUNTY
FOR THE PAST SEVERAL YEARS IN WHICH BLOC VOTING IS APPARENT.  ALTHOUGH
THERE ARE MANY INTELLIGENT AND INDEPENDENT VOTERS AMONG THE COLORED
PEOPLE WHO DEPLORE THIS SITUATION, IT IS NEVERTHELESS OBVIOUS THAT
ABOUT 80%TO 85% OF THE NEGRO VOTERS ENGAGE IN BLOC VOTING  ...  . 

     *      *         *         *         * 

"  ...  THE MATTER YOU ARE DIRECTED TO INVESTIGATE IS THE PERSISTENT
RUMORS AND ACCUSATIONS CONVERNING THE METHODS USED IN THE SOLICITATION
OF THE NEGRO VOTE AND THE ALLEGED BARTERING OF THE BLOC VOTE.  THERE
ARE ACCUSATIONS THAT CANDIDATES FOR PUBLIC OFFICE HAVE PAID LARGE SUMS
OF MONEY TO CERTAIN LEADERS OF THE NEGRO IN AN EFFORT TO GAIN THEIR
FAVOR AND GET THE NEGRO VOTE.  THERE ARE ACCUSATIONS THAT CANDIDATES
AND THEIR SUPPORTERS HAVE PAID, AND THESE LEADERS OF THE NEGROES HAVE
ACCEPTED, MONEY FOR THE PURPOSE OF INFLUENCING THE NEGRO PEOPLE TO BLOC
VOTE FOR CERTAIN CANDIDATES ...  . 

     *         *         *         *         * 

"THESE RUMORS BEING CIRCULATED, AND ABOUT WHICH YOU HAVE BEEN
CHARGED, ARE EITHER TRUE OR FALSE AND IT IS THE DUTY OF THIS GRAND JURY
TO DETERMINE WHEREIN THE TRUTH LIES. 

"SOME QUESTIONS WHICH THIS JURY SHOULD HAVE ANSWERED IN YOUR
INVESTIGATION OF ELECTIONS ARE:  WAS THE NEGRO VOTE DELIVERED IN BLOC
TO ANY CANDIDATE OR CANDIDATES?  IF SO, WHO DELIVERED IT AND HOW WAS IT
DONE?  WHAT CONTACT DID THE CANDIDATES OR THEIR SUPPORTERS HAVE WITH
THE NEGRO GROUP OR ITS LEADERS?  WHAT MONEY WAS INVOLVED, IF ANY?  HOW
WAS THE MONEY USED?  WHAT WORKERS WERE EMPLOYED?  WHAT PROMISES DID THE
CANDIDATES MAKE, IF ANY, IN ORDER TO OBTAIN THE BLOC VOTE? 

     *         *         *         *       * 

"NOW, GENTLEMEN, IT IS YOUR DUTY TO DEVELOP THE FACTS OF THIS
SITUATION AND IF THERE IS SUFFICIENT EVIDENCE OF UNLAWFUL ACTS, THEN
ALL PARTIES PARTICIPATING, WHITE AND COLORED, CANDIDATES OR NON
CANDIDATES, SHOULD BE INDICTED BY THIS GRAND JURY SO THAT THE GUILTY
PARTIES, IF THERE ARE ANY, MAY BE BROUGHT TO TRIAL. 

"FURTHERMORE, IT IS YOUR DUTY TO BRING TO LIGHT THOSE PRACTICES
WHICH, WHILE NOT TECHNICALLY IN VIOLATION OF ANY LAW, ARE YET SO
IMMORAL OR CORRUPT AS TO BE DESTRUCTIVE OF THE PURPOSES OF OUR SYSTEM
OF ELECTIONS.  IT IS FURTHER YOUR RIGHT AND DUTY TO DETERMINE WHAT
ADDITIONAL LAWS, OR AMENDMENTS TO EXISTING LAWS, ARE NEEDED TO
ADEQUATELY DEAL WITH THE SITUATION WITH WHICH WE ARE FACED AND TO
RECOMMEND ENACTMENT THEREOF BY THE LEGISLATURE. 

"THE ENORMITY OF THE TASK ASSIGNED YOU BY THESE INSTRUCTIONS IS
RECOGNIZED, BUT SURELY ALL GOOD CITIZENS, BOTH PUBLIC AND PRIVATE, WHO
STAND FOR GOOD GOVERNMENT AND AN HONEST ELECTIVE SYSTEM WILL BE WILLING
TO COME BEFORE THIS GRAND JURY AND DISCLOSE EVERY FACT CONCERNING THE
MATTERS ABOUT WHICH YOU ARE BEING INSTRUCTED." 

FN3  THE CHARGE THAT WAS DELIVERED TO THE GRAND JURY WAS PREPARED BY
THE THREE JUDGES OF THE BIBB COUNTY SUPERIOR COURT, AND WAS DELIVERED
BY ONE OF THEM.  ANOTHER ONE OF THE THREE PRESIDED AT PETITIONER'S
CONTEMPT HEARING. 

FN4  THORNHILL V. ALABAMA, 310 U.S. 88, 95; SCHNEIDER V. STATE, 308
U.S. 147, 160; DEJONGE V. OREGON, 299 U.S. 353; NEAR V. MINNESOTA, 283
U.S. 697, 707; GITLOW V. NEW YORK, 268 U.S. 652, 666. 

FN5  SPECIFICALLY, THE COURT, AFTER A THOROUGH REVIEW OF THE HISTORY
BEHIND BOTH THE EXERCISE OF THE CONTEMPT POWER AND THE ADOPTION OF THE
FIRST AMENDMENT, REJECTED THE IDEA THAT THE INTERESTS WERE TO BE
ACCOMMODATED BY APPLYING THE COMMON LAW OF ENGLAND AT THE TIME THE
CONSTITUTION WAS ADOPTED.  BRIDGES V. CALIFORNIA, 314 U.S. 252, 263
268.  FOR SOURCE MATERIALS ON THIS SUBJECT, SEE CHAFEE, FREE SPEECH IN
THE UNITED STATES (1941), C. 1; FOX, THE HISTORY OF CONTEMPT OF COURT
(1927), PASSIM; STANSBURY, TRIAL OF JAMES H. PECK (1833), PASSIM;
THAYER, LEGAL CONTROL OF THE PRESS (3D ED. 1956), 483 ET SEQ. SEE ALSO
DEUTSCH, LIBERTY OF EXPRESSION AND CONTEMPT OF COURT, 27 MINN. L. REV.
296 (1943); NELLES AND KING, CONTEMPT BY PUBLICATION IN THE UNITED
STATES, 28 COL. L. REV. 401, 525 (1928). 

FN6  THE COURT WENT ON TO SAY THAT THE CLEAR AND PRESENT DANGER
STANDARD DOES NOT "PURPORT TO MARK THE FURTHERMOST CONSTITUTIONAL
BOUNDARIES OF PROTECTED EXPRESSION  ...  AND THAT IT DOES NO MORE THAN
RECOGNIZE A MINIMUM COMPULSION OF THE BILL OF RIGHTS."  BRIDGES V.
CALIFORNIA, SUPRA, AT 263. 

FN7  IN PENNEKAMP THE COURT CONCLUDED THAT "THE DANGER UNDER  ...
THE RECORD TO FAIR JUDICIAL ADMINISTRATION HAS NOT THE CLEARNESS AND
IMMEDIACY NECESSARY TO CLOSE THE DOOR OF PERMISSIBLE PUBLIC COMMENT. 
WHEN THAT DOOR IS CLOSED, IT CLOSES ALL DOORS BEHIND IT."  328 U.S., AT
350. 

FN8  IN NONE OF THESE CASES, AS IS ALSO TRUE OF THE ONE PRESENTLY
UNDER REVIEW, DID THE COURT FIND IT NECESSARY TO DETERMINE THE FULL
POWER OF THE STATE TO PROTECT THE ADMINISTRATION OF JUSTICE BY USE OF
THE CONTEMPT POWER.  SEE CRAIG V. HARNEY, 331 U.S., AT 373. 

FN9  ATLANTA NEWSPAPERS, INC., V. STATE, 216 GA. 399, 116 S.E.2D 580;
MCGILL V. STATE, 209 GA. 500, 74 S.E.2D 78; BRADLEY V. STATE, 111 GA.
168, 36 S.E. 630.  BUT SEE TOWNSEND V. STATE, 54 GA. APP. 627, 188 S.E.
560. 

FN10  THE STATE LEGISLATURE HAS ENACTED A STATUTE DESIGNED TO LIMIT
THE COURTS IN THAT STATE IN THE EXERCISE OF THE CONTEMPT POWER.  GA.
CODE ANN. SEC. 24-105, PROVIDES: 

"POWERS OF COURTS TO PUNISH FOR CONTEMPT.  - THE POWERS OF THE
SEVERAL COURTS TO ISSUE ATTACHMENTS AND INFLICT SUMMARY PUNISHMENT FOR
CONTEMPT OF COURT SHALL EXTEND ONLY TO CASES OF MISBEHAVIOR OF ANY
PERSON OR PERSONS IN THE PRESENCE OF SAID COURTS OR SO NEAR THERETO AS
TO OBSTRUCT THE ADMINISTRATION OF JUSTICE, THE MISBEHAVIOR OF ANY OF
THE OFFICERS OF SAID COURTS IN THEIR OFFICIAL TRANSACTIONS, AND THE
DISOBEDIENCE OR RESISTANCE BY ANY OFFICER OF SAID COURTS, PARTY, JUROR,
WITNESS, OR OTHER PERSON OR PERSONS TO ANY LAWFUL WRIT, PROCESS, ORDER,
RULE, DECREE, OR COMMAND OF THE SAID COURTS  ...  ." 

COMPARE THE LEGISLATIVE DETERMINATION MADE BY THE STATE OF CALIFORNIA
DISCUSSED BRIEFLY IN BRIDGES V. CALIFORNIA, SUPRA, AT 260-261, N. 3. 

FN11  WHEN THE CLAIM IS THAT SUCH A RIGHT HAS BEEN ABRIDGED BY A
STATE COURT, "IT IS INCUMBENT UPON US TO ANALYZE THE FACTS IN ORDER
THAT THE APPROPRIATE ENFORCEMENT OF THE FEDERAL RIGHT MAY BE ASSURED." 
NORRIS V. ALABAMA, 294 U.S. 587, 590.  SEE HOOVEN & ALLISON CO. V.
EVATT, 324 U.S. 652, 659; TRUAX V. CORRIGAN, 257 U.S. 312, 325. 

FN12  COMPARE THE FINDINGS OF THE COURT OF CRIMINAL APPEALS OF TEXAS
IN EX PARTE CRAIG, 150 TEX. CR. 598, 193 S.W.2D 178.  SEE THIS COURT'S
DISCUSSION OF THESE FINDINGS AND OF THE CONCLUSION DRAWN BY THE TEXAS
COURT ON THE BASIS OF THOSE FINDINGS, CRAIG V. HARNEY, 331 U.S. 367,
370-371, 385-389. 

FN13  SEE, E.G., TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402,
414-416. 

FN14  GEORGIA LAW PRESUMABLY PERMITS GRAND JURORS TO SO TESTIFY:
"GRAND JURORS SHALL DISCLOSE EVERYTHING WHICH OCCURS IN THEIR SERVICE
WHENEVER IT BECOMES NECESSARY IN ANY COURT OF RECORD IN THIS STATE." 
GA. CODE ANN., SEC. 59-302. 

FN15  COMPARE TOLEDO NEWSPAPER CO. V. UNITED STATES, SUPRA, NOTE 13,
AT 425 (HOLMES, J., DISSENTING). 

FN16  SEE ALSO LOVELL V. CITY OF GRIFFIN, 303 U.S. 444; STROMBERG V.
CALIFORNIA, 283 U.S. 359.  SEE GENERALLY 2 BANCROFT, HISTORY OF THE
UNITED STATES (1885), 261. 

FN17  ORFIELD, CRIMINAL PROCEDURE FROM ARREST TO APPEAL (1947), 144
146.  SEE HALE V. HENKEL, 201 U.S. 43, 59-66.  SEE GENERALLY NOTE, THE
GRAND JURY AS AN INVESTIGATORY BODY, 74 HARV. L. REV. 590 (1961). 

FN18  COMPARE MR. JUSTICE HOLMES, DISSENTING IN GITLOW V. NEW YORK,
268 U.S. 652, 673.  SEE ALSO THORNHILL V. ALABAMA, 310 U.S. 88; WHITNEY
V. CALIFORNIA, 274 U.S. 357; PENNEKAMP V. FLORIDA, 328 U.S. 331, 370
(CONCURRING OPINION)("TO TALK OF A CLEAR AND PRESENT DANGER ARISING OUT
OF EVERY  ... CRITICISM IS IDLE UNLESS THE CRITICISM MAKES IT
IMPOSSIBLE IN A VERY REAL SENSE FOR A COURT TO CARRY ON THE
ADMINISTRATION OF JUSTICE"). 

FN19  THE AMENDED CITATION, IN RELEVANT PART, ALLEGED: 

"THE RESPONDENT, JAMES I. WOOD, SHERIFF OF BIBB COUNTY, IS A FULL
TIME EMPLOYEE OF THE COUNTY OF BIBB AND IS PAID A SALARY FOR HIS
SERVICES AS SUCH OFFICER.  RESPONDENT IS AN OFFICER OF THE BIBB
SUPERIOR COURT." 

THERE IS NO ALLEGATION THAT BECAUSE HE WAS SHERIFF HIS CONDUCT WAS
MORE LIKELY TO CAUSE A SUBSTANTIVE EVIL THAN WOULD THE SAME CONDUCT BY
A PRIVATE CITIZEN. 

FN20  THE DECISION OF THE COURT OF APPEALS, AFFIRMING THE OVERRULING
OF PETITIONER'S DEMURRER TO THE EFFECT THAT THE ALLEGATION QUOTED IN
NOTE 19 WAS IRRELEVANT AND SHOULD BE STRICKEN, IS OF NO WEIGHT IN LIGHT
OF THE TRIAL COURT'S FAILURE TO MAKE A FINDING OF FACT EITHER THAT THE
STATEMENTS WERE ISSUED IN PETITIONER'S OFFICIAL CAPACITY OR THAT THE
FACT HE WAS SHERIFF WAS RELEVANT. 

FN21  PETITIONER WAS NOT A CIVIL SERVANT, BUT AN ELECTED OFFICIAL,
AND HENCE THIS IS NOT A CASE LIKE UNITED PUBLIC WORKERS V. MITCHELL,
330 U.S. 75, IN WHICH THIS COURT HELD THAT CONGRESS HAS THE POWER TO
CIRCUMSCRIBE THE POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES IN THE
CAREER PUBLIC SERVICE. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

WHETHER OR NOT THE CLEAR AND PRESENT DANGER DOCTRINE OF BRIDGES V.
CALIFORNIA, 314 U.S. 252, 260-263, 271, SHOULD BE DEEMED TO LIMIT A
STATE OR FEDERAL COURT'S USE OF THE CONTEMPT POWER WHEN EMPLOYED
AGAINST A MEMBER OF ITS OFFICIAL ENTOURAGE WHO HAS SCANDALIZED THE
CONDUCT OF THE COURT IN RELATION TO AND DURING THE COURSE OF A PENDING
JUDICIAL PROCEEDING IS A QUESTION WHICH I NEED NOT REACH IN THIS CASE. 
FOR EVEN UNDER THE MOST EXPANSIVE VIEW OF BRIDGES AND ITS OFFSHOOTS THE
CONTEMPT JUDGMENT AGAINST THIS SHERIFF SHOULD BE UPHELD. 

OVER FIFTY YEARS AGO MR. JUSTICE HOLMES WROTE:  "THE THEORY OF OUR
JUDICIAL SYSTEM IS THAT THE CONCLUSIONS TO BE REACHED IN A CASE WILL BE
INDUCED ONLY BY EVIDENCE AND ARGUMENT IN OPEN COURT, AND NOT BY ANY
OUTSIDE INFLUENCE, WHETHER OF PRIVATE TALK OR PUBLIC PRINT."  PATTERSON
V. COLORADO, 205 U.S. 454, 462.  FOR THIS REASON THIS COURT HAS
REPEATEDLY HELD THAT A CRIMINAL CONVICTION BASED ON THE VERDICT OF
JURORS INFLUENCED BY EXTRAJUDICIAL STATEMENTS OF THE CASE CANNOT STAND
CONSISTENTLY WITH DUE PROCESS OF LAW.  E.G., IRVIN V. DOWD, 366 U.S.
717.  BUT INVALIDATION OF A PROCEEDING SO INFECTED IS NOT THE ONLY
REMEDY AVAILABLE TO COMBAT INTERFERENCE WITH JUDICIAL PROCESSES; SO TO
HOLD WOULD CONFER A RIGHT TO FRUSTRATE THOSE PROCESSES WITH IMPUNITY. 
AND SO IT IS THAT THIS COURT HAS UNIFORMLY UPHELD THE POWER OF COURTS
TO PROTECT THEMSELVES BY CITATIONS FOR CONTEMPT FROM IMPROPER INFLUENCE
UPON PROCEEDINGS BEFORE THEM.  SUSTAINING THIS POWER AGAINST A CLAIM OF
FREEDOM OF SPEECH IN PATTERSON V. COLORADO, SUPRA, 205 U.S., AT 463,
MR. JUSTICE HOLMES WROTE:  "WHEN A CASE IS FINISHED, COURTS ARE SUBJECT
TO THE SAME CRITICISM AS OTHER PEOPLE, BUT THE PROPRIETY AND NECESSITY
OF PREVENTING INTERFERENCE WITH THE COURSE OF JUSTICE BY PREMATURE
STATEMENT, ARGUMENT OR INTIMIDATION HARDLY CAN BE DENIED."  THE RIGHT
OF FREE SPEECH, STRONG THOUGH IT BE, IS NOT ABSOLUTE; WHEN THE RIGHT TO
SPEAK CONFLICTS WITH THE RIGHT TO AN IMPARTIAL JUDICIAL PROCEEDING, AN
ACCOMMODATION MUST BE MADE TO PRESERVE THE ESSENCE OF BOTH.  THUS IN
BRIDGES V. CALIFORNIA, SUPRA, 314 U.S., AT 271, THE COURT SAID: 

"THE VERY WORD 'TRIAL' CONNOTES DECISIONS ON THE EVIDENCE AND
ARGUMENTS PROPERLY ADVANCED IN OPEN COURT.  LEGAL TRIALS ARE NOT LIKE
ELECTIONS, TO BE WON THROUGH THE USE OF THE MEETING-HALL, THE RADIO,
AND THE NEWSPAPER  ...  .  WE MUST THEREFORE TURN TO THE PARTICULAR
UTTERANCES HERE IN QUESTION AND THE CIRCUMSTANCES OF THEIR PUBLICATION
TO DETERMINE TO WHAT EXTENT THE SUBSTANTIVE EVIL OF UNFAIR
ADMINISTRATION OF JUSTICE WAS A LIKELY CONSEQUENCE, AND WHETHER THE
DEGREE OF LIKELIHOOD WAS SUFFICIENT TO JUSTIFY SUMMARY PUNISHMENT." 

AND AGAIN IN PENNEKAMP V. FLORIDA, 328 U.S. 331, 347:  "COURTS MUST
HAVE POWER TO PROTECT THE INTERESTS OF PRISONERS AND LITIGANTS BEFORE
THEM FROM UNSEEMLY EFFORTS TO PERVERT JUDICIAL ACTION."  SEE CRAIG V.
HARNEY, 331 U.S. 367, 372-373. 

THE COURT PROFESSES TO RECOGNIZE THESE PRINCIPLES.  IT HOLDS
NEVERTHELESS THAT THE CONTEMPT SANCTION CANNOT BE APPLIED IN THIS CASE,
ARGUING BOTH THAT "THE LIMITATIONS ON FREE SPEECH ASSUME A DIFFERENT
PROPORTION WHEN EXPRESSION IS DIRECTED TOWARD A TRIAL AS COMPARED TO A
GRAND JURY INVESTIGATION," ANTE, P. 390, AND THAT THE FINDINGS OF CLEAR
AND PRESENT DANGER ARE UNSUPPORTED BY THE RECORD.  I CANNOT AGREE WITH
EITHER PROPOSITION. 

             I. 

THE GRAND JURY IS AN INTEGRAL PART OF THE JUDICIAL PROCESS, LEVINE V.
UNITED STATES, 362 U.S. 610, 617; GATES V. STATE, 73 GA. APP. 824, 826,
38 S.E.2D 311, 312; CONTEMPT SANCTIONS ARE AVAILABLE TO PROTECT ITS
FUNCTIONS.  LEVINE V. UNITED STATES, SUPRA.  CONGRESS HAS RECOGNIZED
THE NEED FOR SAFEGUARDING THE DELIBERATIONS OF FEDERAL GRAND JURIES BY
MAKING IT A CRIME TO ATTEMPT TO INFLUENCE A FEDERAL GRAND JUROR BY
EXTRAJUDICIAL COMMUNICATION.  (FN1)  EVEN ASSUMING THAT A STATE MAY
CONSTITUTIONALLY PERMIT A GRAND JURY, UNLIKE A PETIT JURY, TO BE
INFLUENCED BY EXTRAJUDICIAL STATEMENTS, A QUESTION EXPLICITLY LEFT OPEN
IN BECK V. WASHINGTON, 369 U.S. 541, 546, IT CERTAINLY DOES NOT COMPEL
THEM TO THAT COURSE. 

THE COURT DOES NOT DISPUTE THIS.  BUT, SAYS THE COURT, NO INDIVIDUAL
IS ON TRIAL HERE; AND "WHEN THE GRAND JURY IS PERFORMING ITS
INVESTIGATORY FUNCTION INTO A GENERAL PROBLEM AREA, WITHOUT SPECIFIC
REGARD TO INDICTING A PARTICULAR INDIVIDUAL, SOCIETY'S INTEREST IS BEST
SERVED BY A THOROUGH AND EXTENSIVE INVESTIGATION, AND A GREATER DEGREE
OF DISINTERESTEDNESS AND IMPARTIALITY IS ASSURED BY ALLOWING FREE
EXPRESSION OF CONTRARY OPINION."  ANTE, P. 392.  THIS, HOWEVER, IS
SURELY A POLICY DECISION WITH RESPECT TO WHICH A STATE MAY LEGITIMATELY
TAKE A DIFFERENT VIEW.  THE COURT DOES NOT SUGGEST THAT GEORGIA WAS
ATTEMPTING TO USE THE MANTLE OF JUDICIAL PROCEEDINGS IN ORDER TO
INSULATE THE TRANSACTION OF NONJUDICIAL BUSINESS FROM CRITICISM;
INVESTIGATION IS A TRADITIONAL FUNCTION OF THE GRAND JURY.  I SEE NO
REASON WHY THE STATE CANNOT DETERMINE FOR ITSELF WHAT SHALL AND WHAT
SHALL NOT BE CONSIDERED BY GRAND JURORS IN CONDUCTING ANY OF THEIR
TRADITIONAL TASKS.  MOREOVER, IT IS NOT THE FACT THAT INDIVIDUAL RIGHTS
WERE NOT AT STAKE IN THIS PROCEEDING.  THE JUDGE CHARGED THE JURY: 

"IF THERE IS SUFFICIENT EVIDENCE OF UNLAWFUL ACTS, THEN ALL PARTIES
PARTICIPATING, WHITE AND COLORED, CANDIDATES OR NON-CANDIDATES, SHOULD
BE INDICTED BY THIS GRAND JURY SO THAT THE GUILTY PARTIES, IF THERE ARE
ANY, MAY BE BROUGHT TO TRIAL." 

THAT PETITIONER'S STATEMENTS WOULD TEND TO AID RATHER THAN TO
PREJUDICE IMPLICATED INDIVIDUALS WAS EQUALLY TRUE IN BRIDGES V.
CALIFORNIA, SUPRA, BUT WAS RIGHTLY AFFORDED NO SIGNIFICANCE; THE STATE
AS WELL AS THE INDIVIDUAL IS ENTITLED TO A DAY IN COURT. 

IT IS NOT SUGGESTED THAT IN DECLARING THAT GRAND JURORS SHALL BE
PROTECTED FROM IMPROPER "OUTSIDE" INFLUENCE GEORGIA HAS IMPROPERLY
DEPARTED FROM HER OWN PRIOR LAW.  NOR COULD IT WELL BE MAINTAINED THAT
THE GEORGIA COURTS UNDERTOOK TO JUDGE PETITIONER'S CONDUCT IN TERMS OF
SOMETHING OTHER THAN THE BRIDGES CLEAR AND PRESENT DANGER STANDARD. 
THE GEORGIA COURT OF APPEALS HELD: 

"WITH RESPECT TO THE QUESTION AS TO WHETHER THESE ACTS OF THE
DEFENDANT CONSTITUTED A CLEAR, PRESENT, OR IMMINENT DANGER OR SERIOUS
THREAT TO THE ADMINISTRATION OF JUSTICE, IT IS TO BE NOTED THAT THE
CITATION AS AMENDED SO CHARGES, THE COURT BELOW HAS BY ITS CONVICTION
SO FOUND, AND THE EVIDENCE SUPPORTS THE FINDING."  103 GA. APP., AT
321; 119 S.E.2D, AT 273. 

TO BE SURE THIS HOLDING CANNOT PRECLUDE THIS COURT FROM EXAMINING THE
EVIDENCE FOR ITSELF.  BUT THIS DOES NOT MEAN THAT IT MAY DO SO WITH THE
SAME LATITUDE AS IF IT WERE SITTING AS A STATE COURT OF REVIEW.  THE
COURT'S FUNCTIONS ARE EXHAUSTED ONCE IT IS DETERMINED THAT FEDERAL
CONSTITUTIONAL STANDARDS HAVE BEEN MET.  IT IS OF COURSE NOT INCOMBENT
ON THE STATE COURTS TO DEAL IN DETAIL WITH THE FACTS OF THIS COURT'S
EARLIER DECISIONS IN ORDER TO "DISPLAY AN AWARENESS OF THE STANDARDS
ENUNCIATED IN THOSE CASES," OR TO MAKE "ELABORATE FINDINGS" TO
DEMONSTRATE "HOW THE PUBLICATIONS INTERFERED WITH THE GRAND JURY'S
INVESTIGATION."  ANTE, PP. 386-387. 

ACCEPTING AS I DO FOR PRESENT PURPOSES THE BRIDGES TEST, THIS
CONVICTION MUST BE UPHELD IF THE RECORD SUPPORTS THE INFERENCE OF CLEAR
AND PRESENT DANGER. 

                                    II. 

THAT TEST IS AMPLY MET HERE.  PETITIONER, A PUBLIC OFFICIAL CONNECTED
WITH THE COURT, ACCUSED, FROM HIS OFFICE IN THE COURTHOUSE, THE
SUPERIOR COURT JUDGES OF FOMENTING RACE HATRED; OF MISUSING THE
CRIMINAL LAW TO PERSECUTE AND TO INTIMIDATE POLITICAL AND RACIAL
MINORITIES; OF POLITICAL NAIVETE, RACIAL PREJUDICE, AND HYPOCRISY.  HE
COMPARED THE CALLING OF THE GRAND JURY TO THE ACTIVITIES OF THE KU KLUX
KLAN.  HE MADE AN UNDISGUISED EFFORT TO INFLUENCE THE OUTCOME OF THE
INVESTIGATION BY DECLARING THAT ONLY THE POLITICALLY NAIVE COULD
BELIEVE BIBB COUNTY NEGROES MIGHT BE GUILTY OF SELLING VOTES.  IT WAS
STIPULATED THAT BOTH OF PETITIONER'S FORMAL STATEMENTS WERE READ BY THE
GRAND JURORS DURING THE COURSE OF THEIR INVESTIGATION. 

THE COURT CONSIDERS THIS EVIDENCE INSUFFICIENT BECAUSE THERE WAS NO
SHOWING OF "AN ACTUAL INTERFERENCE WITH THE UNDERTAKINGS OF THE JURY,"
THAT THE JURORS "FELT UNABLE OR UNWILLING TO COMPLETE THEIR ASSIGNED
TASK BECAUSE PETITIONER 'INTERFERED' WITH ITS COMPLETION," THAT "THE
INVESTIGATION WAS NOT ULTIMATELY SUCCESSFUL OR, IF IT WAS NOT, THAT THE
PETITIONER'S CONDUCT WAS RESPONSIBLE FOR ITS FAILURE."  ANTE, P. 387. 
SURELY THE COURT CANNOT MEAN THAT ATTEMPTS TO INFLUENCE JUDICIAL
PROCEEDINGS ARE PUNISHABLE ONLY IF THEY ARE SUCCESSFUL.  SPEECH
CREATING SUFFICIENT DANGER OF AN EVIL WHICH THE STATE MAY PREVENT MAY
CERTAINLY BE PUNISHED REGARDLESS OF WHETHER THAT EVIL MATERIALIZES. 
SEE FEINER V. NEW YORK, 340 U.S. 315, 320-321.  INDEED, THE TEST
SUGGESTED BY THE COURT IS EVEN MORE STRINGENT THAN THAT WHICH APPLIES
IN DETERMINING WHETHER A CONVICTION SHOULD BE SET ASIDE BECAUSE OF
PREJUDICIAL "OUTSIDE" STATEMENTS REACHING A TRIAL JURY.  IN SUCH CASES,
ALTHOUGH THE QUESTION IS WHETHER THE RIGHTS OF THE ACCUSED HAVE BEEN
INFRINGED RATHER THAN WHETHER THERE HAS BEEN A CLEAR AND PRESENT DANGER
OF THEIR INFRINGEMENT, IT IS NECESSARY ONLY TO SHOW A SUBSTANTIAL
LIKELIHOOD THAT THE VERDICT WAS AFFECTED, AND IT IS NO ANSWER THAT EACH
JUROR EXPRESSES HIS BELIEF THAT HE REMAINS ABLE TO BE FAIR AND
IMPARTIAL.  IRVIN V. DOWD, SUPRA, 366 U.S., AT 728; CF. MARSHALL V.
UNITED STATES, 360 U.S. 310, 312-313; SPANO V. NEW YORK, 360 U.S. 315,
324.  THE TEST FOR PUNISHING ATTEMPTS TO INFLUENCE A GRAND OR PETIT
JURY SHOULD BE LESS RATHER THAN MORE STRINGENT. 

I CANNOT AGREE WITH THE COURT THAT PETITIONER'S STATEMENTS WOULD HAVE
BEEN LIKELY TO AFFECT THE OUTCOME OF THE INVESTIGATION "ONLY IF THE
CHARGE WAS SO MANIFESTLY UNJUST THAT IT COULD NOT STAND INSPECTION." 
ANTE, P. 391.  THIS IS TO DISCREDIT THE PERSUASIVENESS OF ARGUMENT,
WHICH THE COURT PURPORTS TO VALUE SO HIGHLY.  ANY EXPRESSION OF OPINION
ON THE MERITS OF A PENDING JUDICIAL PROCEEDING IS LIKELY TO HAVE AN
IMPACT ON DELIBERATIONS.  IN THIS INSTANCE THAT LIKELIHOOD WAS
INCREASED BY TWO FACTORS WHICH WERE NOT PRESENT IN BRIDGES, PENNEKAMP,
OR CRAIG, IN WHICH THE COURT HELD THE EVIDENCE INSUFFICIENT TO SHOW
CLEAR AND PRESENT DANGER.  NONE OF THOSE CASES INVOLVED STATEMENTS BY
OFFICERS OF THE COURT; AND ALL CONCERNED STATEMENTS WHOSE ALLEGED
INTERFERENCE WAS WITH THE DELIBERATIONS OF A JUDGE RATHER THAN A JURY. 
GEORGIA LAW REQUIRES THE SHERIFF TO EXECUTE AND RETURN COURT PROCESSES
AND ORDERS AND TO PRESERVE ORDER DURING SESSIONS OF THE COURTS.  GA.
CODE ANN., 1959, SEC. 24-2813.  PETITIONER WAS THUS A LAW-ENFORCEMENT
OFFICER, WHOSE OFFICE WAS IN THE VERY COURTHOUSE WHERE THE GRAND JURY
WAS SITTING.  WHETHER OR NOT HE ISSUED THE STATEMENTS "IN HIS CAPACITY
AS SHERIFF," AND WHETHER OR NOT THE CONTEMPT CITATION ALLEGED IT, HIS
WORDS ASSUMED AN OVERTONE OF OFFICIAL QUALITY AND AUTHORITY THAT LENT
THEM WEIGHT BEYOND THOSE OF AN ORDINARY CITIZEN. 

OF EQUAL IF NOT GREATER IMPORTANCE IS THE FACT THAT PETITIONER'S
STATEMENTS WERE CALCULATED TO INFLUENCE, NOT A JUDGE CHOSEN BECAUSE OF
HIS INDEPENDENCE, INTEGRITY, AND COURAGE AND TRAINED BY EXPERIENCE AND
THE DISCIPLINE OF LAW TO DEAL ONLY WITH EVIDENCE PROPERLY BEFORE HIM,
BUT A GRAND JURY OF LAYMEN CHOSEN TO SERVE FOR A LIMITED TERM FROM THE
GENERAL POPULATION OF BIBB COUNTY.  IT CANNOT BE ASSUMED WITH GRAND
JURORS, AS IT HAS BEEN WITH JUDGES, CRAIG V. HARNEY, SUPRA, 331 U.S.,
AT 376, THAT THEY ARE ALL "MEN OF FORTITUDE, ABLE TO THRIVE IN A HARDY
CLIMATE."  WHAT MAY NOT SERIOUSLY ENDANGER THE INDEPENDENT
DELIBERATIONS OF A JUDGE MAY WELL JEOPARDIZE THOSE OF A GRAND OR PETIT
JURY.  SEE MARYLAND V. BALTIMORE RADIO SHOW, INC., 338 U.S. 912, 920
(OPINION OF FRANKFURTER, J.). 

MOREOVER, THE STATEMENTS THEMSELVES WERE OF SUCH A NATURE AS TO
DISTINGUISH THIS CASE FROM BRIDGES, PENNEKAMP, AND CRAIG.  IT CANNOT BE
SAID HERE, AS IT WAS IN BRIDGES, THAT PETITIONER'S CHARGES OF RACIAL
BIAS, HYPOCRISY, POLITICAL INTIMIDATION, PERSECUTION, AND POLITICAL
NAIVETE, AND HIS COMPARISON OF THE JUDGES WITH THE KU KLUX KLAN, "DID
NO MORE THAN THREATEN FUTURE ADVERSE CRITICISM WHICH WAS REASONABLY TO
BE EXPECTED ANYWAY," OR THAT "IF THERE WAS ELECTRICITY IN THE
ATMOSPHERE, IT WAS GENERATED BY THE FACTS; THE CHARGE ADDED BY THE  ...
(PETITIONER'S STATEMENT) CAN BE DISMISSED AS NEGLIGIBLE."  314 U.S.,
AT 273, 278.  THE SHERIFF'S REMARKS WERE NOT, AS IN PENNEKAMP, 328
U.S., AT 348, GENERAL CRITICISMS WITH RESPECT TO RULINGS ALREADY MADE,
BUT SPECIFIC ATTACKS DIRECTED TOWARD THE DISPOSITION OF THE PENDING
INVESTIGATION.  THEY CANNOT BE CHARACTERIZED, AS IN CRAIG, 331 U.S., AT
374-375, AS MERELY UNFAIR REPORTS OF THE ACTIVITIES OF OTHERS; UNLIKE
THE EDITORIAL IN THAT CASE, ID., AT 376-377, PETITIONER'S CRITICISMS
WENT SQUARELY TO THE MERITS OF THE INVESTIGATION AND IMPUGNED AS WELL
THE MOTIVES AND HONESTY OF THOSE CONDUCTING IT.  I DO NOT UNDERSTAND
HOW IT CAN BE DENIED THAT A GRAND JUROR, READING IN THE COURSE OF THIS
INVESTIGATION THE SHERIFF'S STATEMENT THAT THE JUDGES WHO INSTRUCTED
THE GRAND JURY TO UNDERTAKE IT WERE RACIAL BIGOTS MAKING DISCRIMINATORY
USE OF THE LAWS FOR PURPOSES OF POLITICAL REPRESSION, AND THAT THE
CHARGES THEMSELVES WERE INCREDIBLY FALSE, MIGHT WELL BE INFLUENCED IN
HIS DELIBERATIONS. 

THE PETITIONER'S LAST FORMAL STATEMENT, WHICH HE AND THE COURT
CHARACTERIZE AS A "DEFENSE," WAS ALSO PROPERLY FOUND TO CONSTITUTE A
CONTEMPT.  DEFENSES, LIKE CHARGES, SHOULD BE PRESENTED TO A COURT
JUDICIALLY AND NOT THROUGH THE PUBLIC PRESS.  BUT IN FACT THE
AFFIRMANCE OF PETITIONER'S CONVICTION WAS NOT BASED AT ALL ON THE
ALLEGATION THAT THIS DEFENSE INTERFERED WITH HIS TRIAL FOR CONTEMPT. 
RATHER, THE COURT OF APPEALS HELD THAT THIS FURTHER STATEMENT HAD BEEN
MADE "IN AN APPARENT EFFORT TO HAMPER THE GRAND JURY WHICH WAS STILL
CONSIDERING THE CHARGES GIVEN IT BY THE COURT."  103 GA. APP., AT 321,
119 S.E.2D, AT 273.  THIS CONCLUSION, BASED ON THE REPETITION OF A
NUMBER OF PETITIONER'S PREVIOUS STATEMENTS AND THE ALLEGATION THAT THEY
WERE TRUE, (FN2) WAS CLEARLY JUSTIFIED. 

FINALLY, PETITIONER'S CASE IS NOT SAVED BY THE FACT THAT BOTH HE AND
THE JUDGES HE ATTACKED ARE ELECTED OFFICIALS, OR BY THE FACT THAT THE
STATEMENT CONCERNED AN ISSUE OF SOME POLITICAL MOMENT.  THERE WAS AMPLE
OPPORTUNITY TO BRING THE JUDGES' PERFORMANCE TO THE VOTERS AFTER THE
INVESTIGATION WAS CLOSED.  "POLITICAL INTEREST" CANNOT BE USED AS AN
EXCUSE FOR AFFECTING THE RESULT OF A JUDICIAL INQUIRY. 

I WOULD AFFIRM. 

FN1  "WHOEVER ATTEMPTS TO INFLUENCE THE ACTION OR DECISION OF ANY
GRAND OR PETIT JUROR OF ANY COURT OF THE UNITED STATES UPON ANY ISSUE
OR MATTER PENDING BEFORE SUCH JUROR, OR BEFORE THE JURY OF WHICH HE IS
A MEMBER, OR PERTAINING TO HIS DUTIES, BY WRITING OR SENDING TO HIM ANY
WRITTEN COMMUNICATION, IN RELATION TO SUCH ISSUE OR MATTER, SHALL BE
FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN SIX MONTHS, OR
BOTH.    "NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PROHIBIT THE
COMMUNICATION OF A REQUEST TO APPEAR BEFORE THE GRAND JURY."  18 U.S.C.
SEC. 1504. 

FN2  PETITIONER'S LAST STATEMENT WAS AS FOLLOWS: 

"MY DEFENSE WILL BE SIMPLY THAT I HAVE SPOKEN THE TRUTH.  ANYONE WHO
WILL READ, POINT BY POINT, MY STATEMENTS CONCERNING THE JUDGES' CHARGE
WILL FIND THOSE STATEMENTS TRUE. 

"THE JUDGES WERE WRONG TO USE 'NEGRO BLOC VOTING', THE CAMPAIGN
SLOGAN OF TALMADGE, AND SIMILAR PHRASES AS LANGUAGE WITH WHICH TO
INSTRUCT A GRAND JURY.  WHEN I STATED "IT IS SHOCKING TO FIND A JUDGE
CHARGING A GRAND JURY IN THE STYLE AND LANGUAGE OF A RACE BAITING
CANDIDATE FOR POLITICAL OFFICE' WAS IT CONTEMPT OF COURT OR WAS I
POINTING OUT THE TRUTH? 

"WHEN I SAID 'IF ANYONE IN THIS COMMUNITY BE FREE OF RACIAL
PREJUDICE, IT SHOULD BE OUR JUDGES' WAS THIS CONTEMPT OF COURT OR WAS I
STATING A TRUTH? 

"THE JUDGES WERE MORALLY WRONG TO SUDDENLY ORDER A GRAND JURY TO
SINGLE OUT THE NEGRO POLITICAL LEADERS FOR INDICTMENTS UNDER A
FORGOTTEN LAW WHICH EVEN JUDGES HAVE VIOLATED.  WHEN I SAID 'IT FURTHER
SEEMS THAT THE HEIGHT OF HYPOCRISY TO DUST OFF AN OLD BLUE LAW THAT HAS
BEEN IGNORED FOR FIFTY YEARS AND SUDDENLY ORDER ITS RIGID ENFORCEMENT
AGAINST A MINORITY GROUP OF VOTERS' WAS THIS CONTEMPT OF COURT OR WAS I
SPEAKING THE TRUTH? 

"THE JUDGES WERE PROFESSIONALLY WRONG IN INVOLVING THE COURT IN
POLITICAL AFFAIRS.  I STATED THAT THE JUDGES' CHARGES 'THREATEN
POLITICAL PERSECUTION CARRIED OUT UNDER THE GUISE OF LAW ENFORCEMENT'
AND FURTHER THAT 'THIS ACTION APPEARS EITHER AS A CRUDE ATTEMPT AT
JUDICIAL INTIMIDATION OF NEGRO VOTERS AND LEADERS, OR, AT BEST, AS
AGITATION FOR A "NEGRO VOTE" ISSUE IN LOCAL POLITICS.'  CAN ANYONE READ
THE JUDGES' INSTRUCTIONS FOR INDICTMENTS UNDER THE OLD 'INFLUENCING
VOTERS' LAW AND HONESTLY SAY NO POLITICAL PERSECUTION IS THREATENED
WHEN ALMOST ALL OFFICE HOLDERS HAVE VIOLATED THIS LAW?  CAN ANYONE READ
THE LONG CHARGE RECITING POLITICAL RUMORS AND CHARGES AGAINST NEGRO
LEADERS AND VOTERS AND HONESTLY SAY THERE IS NO APPEARANCE OF ANY
ATTEMPT AT INTIMIDATION OF NEGRO VOTERS AND LEADERS?  LIKEWISE CAN
ANYONE DENY SUCH A CHARGE AND SUCH AN INVESTIGATION IN THE MIDST OF
LOCAL POLITICAL RACES AGITATES A 'NEGRO VOTE' ISSUE? 

"IF THE COURT WILL PERMIT I BELIEVE THAT MANY THOUSANDS OF WITNESSES
WOULD TESTIFY IN MY BEHALF THAT THEY DREW THE SAME CONCLUSIONS AS I
FROM THE LANGUAGE USED BY THE JUDGES IN THEIR CHARGE. 

"IS IT JUST, OR EVEN FAIR PLAY, FOR THE JUDGES TO SAY THEY INTENDED
NO THREAT, NO INTIMIDATION, NO AGITATION AND THEREFORE IT IS CONTEMPT
OF COURT TO PUBLICLY STATE HONEST, SINCERE CONCLUSIONS AND PRACTICAL
EFFECTS CAUSED BY THE LANGUAGE OF THE CHARGE. 

"TWO WRONGS DO NOT MAKE A RIGHT, AND THE JUDGES ARE WRONG TO CITE ME
FOR CONTEMPT.  I CANNOT VIEW THE JUDGES' ACTION IN ANY LIGHT EXCEPT TO
BELIEVE I AM TO BE PROSECUTED FOR DARING TO CRITICISE THE JUDGES AND
FOR SPEAKING THE TRUTH. 

"I HAD HOPED THAT THE ENTIRE ILL-WILL AND RACE AGITATION STIRRED UP
BY THE JUDGES' CHARGE WOULD BE PERMITTED TO DIE AFTER A FACE-SAVING
PRESENTMENT BY THE COURTS' GRAND JURY.  TO THIS END I REMAINED SILENT
DESPITE GROSSLY FALSE AND DISCREDITING CONCLUSIONS PRESENTED.  NOW IT
APPEARS THAT THE JUDGES WANT THE SATISFACTION OF FINDING ME IN CONTEMPT
OF COURT, BUT IF THEY SO DO, THEY ARE IN EFFECT SAYING THAT THE COURT
HAS DONE NO WRONG BECAUSE THE COURT ITSELF FINDS IT HAS DONE NO WRONG. 

                                 "/S/JAMES I. WOOD"
..END :















UNITED STATES V. WISE 370 U.S. 405 


NO. 488.  ARGUED APRIL 16, 1962 - DECIDED JUNE 25, 1962 - 196 F. SUPP.
155, REVERSED. 


A GRAND JURY INDICTED APPELLEE AND A CORPORATION OF WHICH HE WAS AN
OFFICER FOR ENGAGING IN A COMBINATION AND CONSPIRACY TO ELIMINATE PRICE
COMPETITION IN THE SALE OF MILK IN THE KANSAS CITY AREA, IN VIOLATION
OF SEC. 1 OF THE SHERMAN ACT.  IN A BILL OF PARTICULARS, THE GOVERNMENT
CHARGED THAT APPELLEE HAD BEEN ACTING "SOLELY IN HIS CAPACITY AS AN
OFFICER, DIRECTOR, OR AGENT WHO AUTHORIZED, ORDERED, OR DID" SOME OF
THE ACTS CONSTITUTING A VIOLATION.  THE DISTRICT COURT DISMISSED THE
INDICTMENT AS TO APPELLEE, ON THE GROUND THAT SEC. 1 OF THE SHERMAN ACT
DOES NOT APPLY TO CORPORATE OFFICERS ACTING IN A REPRESENTATIVE
CAPACITY.  HELD:  A CORPORATE OFFICER IS SUBJECT TO PROSECUTION UNDER
SEC. 1 OF THE SHERMAN ACT WHENEVER HE KNOWINGLY PARTICIPATES IN
EFFECTING AN ILLEGAL CONTRACT, COMBINATION OR CONSPIRACY - BE HE ONE
WHO AUTHORIZES, ORDERS OR HELPS TO PERPETRATE THE CRIME - REGARDLESS OF
WHETHER HE IS ACTING IN A REPRESENTATIVE CAPACITY.  PP. 406-416. 

(A)  AN OFFICER OF A CORPORATION ACTING SOLELY IN HIS REPRESENTATIVE
CAPACITY IS A "PERSON" WITHIN THE MEANING OF SEC. 1 OF THE SHERMAN ACT,
WHICH IMPOSES CRIMINAL SANCTIONS UPON "EVERY PERSON" WHO VIOLATES ITS
PROVISIONS.  PP. 407-408. 

(B)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY SEC. 8, WHICH DEFINES
"PERSON" TO INCLUDE "CORPORATIONS AND ASSOCIATIONS."  PP. 408-411. 

(C)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY SEC. 14 OF THE CLAYTON
ACT OR ITS LEGISLATIVE HISTORY.  PP. 411-415. 

(D)  NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF THE 1955
AMENDMENT TO THE SHERMAN ACT, INCREASING THE PENALTY FOR VIOLATION
THEREOF FROM $5,000 TO $50,000 WITHOUT MAKING A CORRESPONDING INCREASE
IN THE $5,000 PENALTY UNDER THE CLAYTON ACT, INDICATES THAT CONGRESS
INTENDED TO RESTRICT THE APPLICABILITY OF THE INCREASED FINE TO
CORPORATIONS.  P. 415. 

UNITED STATES V. WISE 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

A GRAND JURY RETURNED AN INDICTMENT CHARGING THE NATIONAL DAIRY
PRODUCTS CORPORATION WITH ENGAGING "IN A COMBINATION AND CONSPIRACY TO
ELIMINATE PRICE COMPETITION IN THE SALE OF MILK IN THE GREATER KANSAS
CITY MARKET IN UNREASONABLE RESTRAINT OF  ...  TRADE AND COMMERCE, IN
VIOLATION OF SECTION 1" OF THE SHERMAN ACT, 15 U.S.C. SEC. 1.  TWO
COUNTS INCORPORATED BY REFERENCE THE ALLEGED ILLEGAL ACTS OF THE
CORPORATION AND NAMED THE APPELLEE AS CODEFENDANT.  IN A BILL OF
PARTICULARS THE GOVERNMENT CHARGED THAT THE APPELLEE HAD "BEEN ACTING
SOLELY IN HIS CAPACITY AS AN OFFICER, DIRECTOR, OR AGENT WHO
AUTHORIZED, ORDERED, OR DID SOME OF THE ACTS" CONSTITUTING THE
VIOLATION.  THE APPELLEE MOVED FOR A DISMISSAL ON THE GROUND THAT THE
INDICTMENT, AS PARTICULARIZED BY THE BILL, FAILED TO CHARGE A CRIME. 
ACCORDING TO APPELLEE, THE SHERMAN ACT DOES NOT APPLY TO CORPORATE
OFFICERS ACTING IN A REPRESENTATIVE CAPACITY; HE CONTENDS THAT THE
STATUTE EXCLUSIVELY APPLICABLE TO THESE OFFICERS IS SEC. 14 OF THE
CLAYTON ACT, 15 U.S.C.  SEC. 24.  OVER THE GOVERNMENT'S OPPOSITION THE
DISMISSAL WAS ORDERED BY THE DISTRICT JUDGE.  196 F. SUPP. 155.  AN
APPEAL WAS PERFECTED PURSUANT TO 18 U.S.C. SEC. 3731, AND WE NOTED
PROBABLE JURISDICTION.  368 U.S. 945. 

ALTHOUGH THE SHERMAN ACT HAS BEEN IN EXISTENCE FOR OVER 70 YEARS AND
ALTHOUGH CORPORATE OFFICERS HAVE BEEN INDICTED UNDER THAT ACT FOR
ALMOST AS LONG, SEE, E.G., UNITED STATES V. GREENHUT, 50 F. 469 (D.C.D.
MASS. 1892); UNITED STATES V. PATTERSON, 55 F. 605 (D.C.D. MASS. 1893),
(FN2) THIS QUESTION IS ONE OF FIRST IMPRESSION FOR THIS COURT.  THE
IMPETUS FOR RAISING THIS ISSUE AT SUCH A LATE DATE COMES FROM THE FACT
THAT IN 1955 THE CONGRESS RAISED THE PENALTY PROVISION IN THE SHERMAN
ACT FROM $5,000 TO $50,000 WITHOUT MAKING A CORRESPONDING INCREASE IN
THE $5,000 PENALTY FOUND IN THE CLAYTON ACT. 

PERSON" WHO VIOLATES THAT PROVISION, 15 U.S.C. SEC. 1.  (FN2)  THE
GOVERNMENT CONTENDS THAT A CORPORATE OFFICER IS OBVIOUSLY A "PERSON"
WITHIN THE ACT.  THE APPELLEE, HOWEVER, DISTINGUISHES BETWEEN A
CORPORATE OFFICER WHO REPRESENTS HIS CORPORATION AND ONE WHO ACTS ON
HIS OWN ACCOUNT.  IN THE LATTER CASE THE APPELLEE AGREES THAT THE
SHERMAN ACT APPLIES.  BUT, WHEN THE OFFICER IS ACTING SOLELY FOR HIS
CORPORATION, THE APPELLEE CONTENDS THAT HE IS NO LONGER A "PERSON"
WITHIN THE ACT.  THE RATIONALE FOR THIS DISTINCTION IS THAT THE
ACTIVITIES OF AN OFFICER, HOWEVER ILLEGAL AND CULPABLE, ARE CHARGEABLE
TO THE CORPORATION AS THE PRINCIPAL BUT NOT TO THE INDIVIDUAL WHO
PERPETRATES THEM. 

NO SUBSTANTIAL SUPPORT FOR SUCH AN ARTIFICIAL INTERPRETATION OF A
SEEMINGLY CLEAR STATUTE IS PROVIDED BY THE LEGISLATIVE HISTORY.  THE
MOST THAT CAN BE SAID FOR THE APPELLEE'S POSITION IS THAT THE REAGAN
BILL, AN UNSUCCESSFUL COMPETITOR OF THE SHERMAN BILL, SPECIFICALLY
INCLUDED CORPORATE OFFICERS IN ITS PENAL SECTION WHILE THE SHERMAN BILL
HAD NO PENAL SECTION AT ONE TIME.  THE PENAL PROVISION OF THE REAGAN
BILL WAS OFFERED AS AN AMENDMENT TO THE SHERMAN BILL, AND THE SENATE
COMMITTEE ON THE JUDICIARY THEN REDRAFTED AND RESUBMITTED A BILL IN THE
FORM WHICH BECAME THE SHERMAN ACT.  21 CONG. REC. 2731, 3152.  THAT ACT
OUTLAWED CERTAIN ACTS BY "PERSONS," AND THERE IS NOTHING TO INDICATE
THAT THE CONGRESS INTENDED TO RESTRICT THE MEANING AS APPLIED TO
CORPORATE OFFICERS.  SEE TRAILMOBILE CO. V. WHIRLS, 331 U.S. 40, 61. 

THE APPELLEE POINTS TO SEC. 8 OF THE SHERMAN ACT, 15 U.S.C. SEC. 7,
WHICH DEFINES "PERSON" "TO INCLUDE CORPORATIONS AND ASSOCIATIONS."  HE
ARGUES THAT, SINCE CORPORATIONS ARE INCLUDED WITHIN THE TERM,
INDIVIDUAL CORPORATE OFFICERS ARE THEREBY EXCLUDED.  THIS IS A NON
SEQUITUR.  THE MERE FACT THAT THE TERM IS GIVEN A BROAD CONSTRUCTION
DOES NOT ALTER ITS BASIC MEANING, AND NO SUCH INFERENCE CAN BE DRAWN
FROM THE EXPRESS INCLUSION OF CORPORATIONS AS "PERSONS."  THE REASON
FOR THIS INCLUSION IS READILY UNDERSTANDABLE.  THE DOCTRINE OF
CORPORATE CRIMINAL RESPONSIBILITY FOR THE ACTS OF THE OFFICERS WAS NOT
WELL ESTABLISHED IN 1890.  SEE NEW YORK CENTRAL & H.R.R. CO. V. UNITED
STATES, 212 U.S. 481.  WHEN A CRIMINAL STATUTE PROSCRIBED CONDUCT BY
"PERSONS," CORPORATE DEFENDANTS CONTENDED THAT ONLY NATURAL PERSONS
WERE INCLUDED.  UNITED STATES V. AMEDY, 11 WHEAT.  392.  THE SAME ISSUE
RAISED IN OTHER CASES WAS NOT ALWAYS RESOLVED BY A UNANIMOUS COURT. 
BEASTON V. FARMERS' BANK OF DELAWARE, 12 PET. 102.  CF. UNITED STATES
V. SHIREY, 359 U.S. 255.  THE DISSENT BY MR. JUSTICE STORY IN THE
BEASTON CASE WOULD BE SUFFICIENT REASON FOR A CAREFUL DRAFTSMAN TO
AVOID THE WHOLE PROBLEM OF A PROVISION SUCH AS SEC. 8.  FURTHER REASON
FOR CAUTION LAY IN THE LANGUAGE FOUND IN CASES THEN RECENT, SINKING
FUND CASES, 99 U.S. 700, 718-719, AND CANADA SOUTHERN R. CO. V.
GEBHARD, 109 U.S. 527, 542 (DISSENTING OPINION), WHICH DISTINGUISHED
BETWEEN PERSONS AND CORPORATIONS WHEN CONSIDERING THE APPLICATION OF
THE FOURTEENTH AMENDMENT'S PROTECTION TO "PERSONS."  SEE PHILADELPHIA
FIRE ASSN. V. NEW YORK, 119 U.S. 110, 120 (DISSENTING OPINION). 
THEREFORE, WE ATTRIBUTE NO SIGNIFICANCE TO THE SPECIFIC INCLUSION OF
CORPORATIONS IN THE DEFINITION OF "PERSONS" IN DETERMINING WHETHER A
CORPORATE OFFICER IS WITHIN THE TERM. 

THIS COURT WAS FACED WITH THE SAME PROBLEM IN UNITED STATES V.
DOTTERWEICH, 320 U.S. 277, INVOLVING THE CONSTRUCTION OF THE FEDERAL
FOOD, DRUG AND COSMETIC ACT, 21 U.S.C. SECS. 301-392.  AN EARLIER
VERSION OF THE ACT STATED THAT THE ACTS OF A CORPORATE OFFICER WOULD BE
CHARGEABLE BOTH TO HIM AND TO THE CORPORATION.  IN A 1938 REVISION THE
STATUTE MADE ANY "PERSON" RESPONSIBLE AND SPECIFICALLY INCLUDED
CORPORATIONS WITHIN THAT TERM.  52 STAT. 1040.  THE COURT OF APPEALS
REVERSED THE CONVICTION OF A CORPORATE OFFICER ON THE GROUND THAT ONLY
A CORPORATION WAS A "PERSON" WITHIN THE ACT.  THIS COURT REVERSED THE
COURT OF APPEALS, REJECTING SUBSTANTIALLY THE SAME ARGUMENT THAT IS
ADVANCED BY THE APPELLEE IN THIS CASE.  THE REASON FOR THE REJECTION IS
EQUALLY APPLICABLE TO THE CASE AT BAR.  NO INTENT TO EXCULPATE A
CORPORATE OFFICER WHO VIOLATES THE LAW IS TO BE IMPUTED TO CONGRESS
WITHOUT CLEAR COMPULSION; ELSE THE FINES ESTABLISHED BY THE SHERMAN ACT
TO DETER CRIME BECOME MERE LICENSE FEES FOR ILLEGITIMATE CORPORATE
BUSINESS OPERATIONS.  FOLLOWING DOTTERWEICH, WE CONSTRUE SEC. 1 OF THE
SHERMAN ACT IN ITS COMMON-SENSE MEANING TO APPLY TO ALL OFFICERS WHO
HAVE A RESPONSIBLE SHARE IN THE PROSCRIBED TRANSACTION.  CF. CAROLENE
PRODUCTS CO. V. UNITED STATES, 323 U.S. 18, 21. 

THIS CONSTRUCTION IS SUPPORTED BY THE DECISIONS OF THE LOWER FEDERAL
COURTS WHICH CONSIDERED THE PROBLEM OF WHETHER CORPORATE OFFICERS WERE
"PERSONS" WITHIN THE SHERMAN ACT IN THE INTERIM BEFORE THE PASSAGE OF
THE CLAYTON ACT.  THE MOST SIGNIFICANT CASE IS UNITED STATES V.
MACANDREWS & FORBES CO., 149 F. 823 (C.C.S.D.N.Y. 1906), IN WHICH THE
COURT CONSIDERED THE JOINT INDICTMENT OF A CORPORATION AND SOME OF ITS
OFFICERS FOR VIOLATIONS OF THE SHERMAN ACT.  THE DEFENDANTS DEMURRED TO
THE JOINDER, THE CORPORATION PLEADING THAT ONLY THE HUMAN AGENTS COULD
BE HELD RESPONSIBLE FOR THE MISDEMEANOR WHILE THE OFFICERS PLEADED THAT
ONLY THE CORPORATION WAS RESPONSIBLE.  THE COURT REFUSED TO HOLD AS A
MATTER OF LAW THAT EITHER PROPOSITION WAS CORRECT BECAUSE
RESPONSIBILITY WAS, IN EACH CASE, A MATTER OF FACT.  THE COURT NOTED
THAT THE OFFICERS MAY OR MAY NOT BE CONVICTED, DEPENDING UPON WHETHER
THEY WERE PERSONALLY RESPONSIBLE FOR THE CRIME.  (FN3) 

IN UNITED STATES V. WINSLOW, 195 F. 578 (D.C.D. MASS. 1912), THE SAME
CONTENTION BY CORPORATE OFFICERS WAS GIVEN SHORT DISPOSITION: 

"THE INDICTMENT, HOWEVER, EXPRESSLY CHARGES THEM (THE CORPORATE
OFFICERS) AS ACTORS, AND TWO FUNDAMENTAL PRINCIPLES ARE THOROUGHLY
SETTLED.  ONE IS THAT NEITHER IN THE CIVIL NOR THE CRIMINAL LAW CAN AN
OFFICER PROTECT HIMSELF BEHIND A CORPORATION WHERE HE IS THE ACTUAL,
PRESENT, AND EFFICIENT ACTOR; AND THE SECOND IS THAT ALL PARTIES ACTIVE
IN PROMOTING A MISDEMEANOR, WHETHER AGENTS OR NOT, ARE PRINCIPALS." 
195 F., AT 581. 

WE HAVE FOUND NO CASE BETWEEN 1890 AND 1914 IN WHICH A CORPORATE
OFFICER SUCCESSFULLY SECURED THE DISMISSAL OF AN INDICTMENT OR THE
REVERSAL OF A CONVICTION ON THE GROUND THAT HE WAS NOT A "PERSON"
WITHIN THE SHERMAN ACT WHEN HE ACTED SOLELY AS A REPRESENTATIVE OF THE
CORPORATION. 

UNLESS SUBSEQUENT STATUTES HAVE REPEALED OR AMENDED THIS ASPECT OF
THE SHERMAN ACT, OUR INQUIRY IS AT AN END. 

THE APPELLEE SEEKS SUCCOR IN THE SUBSEQUENT LEGISLATIVE HISTORY
ACCOMPANYING ATTEMPTS TO AMEND THE SHERMAN ACT BETWEEN 1890 AND 1914. 
HE PARTICULARLY RELIES UPON H.R. 10539, 56TH CONG., 1ST SESS. (1900). 
THIS BILL WOULD HAVE EXPRESSLY INCLUDED CORPORATE OFFICERS AND AGENTS
IN THE DEFINITION OF "PERSONS" FOUND IN SEC. 8.  THE REPORT
ACCOMPANYING THAT BILL STATED THAT THE EXISTING LAW DID NOT SUBJECT
AGENTS, OFFICERS, AND ATTORNEYS TO PENALTIES.  H.R. REP. NO. 1506, 56TH
CONG., 1ST SESS. HOWEVER, STATUTES ARE CONSTRUED BY THE COURTS WITH
REFERENCE TO THE CIRCUMSTANCES EXISTING AT THE TIME OF THE PASSAGE. 
THE INTERPRETATION PLACED UPON AN EXISTING STATUTE BY A SUBSEQUENT
GROUP OF CONGRESSMEN WHO ARE PROMOTING LEGISLATION AND WHO ARE
UNSUCCESSFUL HAS NO PERSUASIVE SIGNIFICANCE HERE.  UNITED STATES V.
PRICE, 361 U.S. 304, 313; UNITED STATES V. TURLEY, 352 U.S. 407, 415,
N. 14; FOGARTY V. UNITED STATES, 340 U.S. 8, 13-14; WONG YANG SUNG V.
MCGRATH, 339 U.S. 33, 47; UNITED STATES V. UNITED MINE WORKERS, 330
U.S. 258, 281-282; GEMSCO, INC., V. WALLING, 324 U.S. 244, 265. 
LOGICALLY, SEVERAL EQUALLY TENABLE INFERENCES COULD BE DRAWN FROM THE
FAILURE OF THE CONGRESS TO ADOPT AN AMENDMENT IN THE LIGHT OF THE
INTERPRETATION PLACED UPON THE EXISTING LAW BY SOME OF ITS MEMBERS,
INCUDING THE INFERENCE THAT THE EXISTING LEGISLATION ALREADY
INCORPORATED THE OFFERED CHANGE. 

IN 1914 THE CONGRESS PASSED "AN ACT TO SUPPLEMENT EXISTING LAWS
AGAINST UNLAWFUL RESTRAINTS AND MONOPOLIES, AND FOR OTHER PURPOSES,"
COMMONLY CALLED THE CLAYTON ACT.  SECTION 14 OF THAT ACT PROVIDED: 

"THAT WHENEVER A CORPORATION SHALL VIOLATE ANY OF THE PENAL
PROVISIONS OF THE ANTITRUST LAWS, SUCH VIOLATION SHALL BE DEEMED TO BE
ALSO THAT OF THE INDIVIDUAL DIRECTORS, OFFICERS, OR AGENTS OF SUCH
CORPORATION WHO SHALL HAVE AUTHORIZED, ORDERED, OR DONE ANY OF THE ACTS
CONSTITUTING IN WHOLE OR IN PART SUCH VIOLATION, AND SUCH VIOLATION
SHALL BE DEEMED A MISDEMEANOR, AND UPON CONVICTION THEREFOR OF ANY SUCH
DIRECTOR, OFFICER, OR AGENT HE SHALL BE PUNISHED BY A FINE OF NOT
EXCEEDING $5,000 OR BY IMPRISONMENT FOR NOT EXCEEDING ONE YEAR, OR BY
BOTH, IN THE DISCRETION OF THE COURT."  38 STAT. 736. 

THE APPELLEE CONTENDS THAT SEC. 14 IS AN ENTIRELY NEW PROVISION ADDED
BY CONGRESS TO PROVIDE FOR THE CRIMINAL RESPONSIBILITY OF CORPORATE
OFFICERS WHO ACT IN A REPRESENTATIVE CAPACITY.  THE GOVERNMENT CONTENDS
THAT SEC. 14 IS MERELY SUPPLEMENTAL AND THAT APPELLEE'S CONSTRUCTION
RESULTS IN AN IMPLIED REPEAL OF PART OF SEC. 1 OF THE SHERMAN ACT. 
(FN4) 

APPELLEE ASSERTS THAT SEC. 14 WOULD NOT LITERALLY APPLY TO THE
OFFICER WHO ACTED ON HIS OWN ACCOUNT BECAUSE HIS MISCONDUCT WOULD NOT
BE ATTRIBUTED TO THE CORPORATION.  FROM THIS PREMISE HE ARGUES THAT
SINCE SEC. 14 OF THE CLAYTON ACT APPLIES ONLY TO AN OFFICER ACTING IN A
REPRESENTATIVE CAPACITY, SEC. 1 OF THE SHERMAN ACT ONLY APPLIES TO AN
OFFICER ACTING ON HIS OWN ACCOUNT. 

WE DO NOT AGREE.  THE REASONS FOR SEC. 14 ARE SUFFICIENTLY REVEALED
BY THE LEGISLATIVE HISTORY.  THE PROVISION ORIGINATED IN THE HOUSE,
AND, AFTER CONFERENCES WITH THE SENATE, SURVIVED SUBSTANTIALLY INTACT. 
THE REPORTS PROVIDE NO ASSISTANCE, BUT THE DEBATES DO.  WHETHER ANY
SUPPLEMENTARY LEGISLATION WAS NECESSARY WAS THE ESSENCE OF THE
DEBATES.  AS SENATOR SHIELDS, AN OPPONENT, SAID, "SEC.  14 IS MERELY A
REENACTMENT OF THE SHERMAN LAW, SECTIONS 1, 2, AND 3.  IN OTHER WORDS,
IT HAS ALWAYS BEEN HELD THAT THE OFFICERS OF CORPORATIONS VIOLATING THE
LAW WERE PUNISHABLE UNDER THESE SECTIONS  ...  ."  51 CONG. REC.
14214.  SEE 51 CONG. REC. 9079, 9080, 9169, 9201, 9202, 9595, 9610,
14225, 15820, 16143.  THE PROPONENTS OF THE BILL AGREED THAT THE
SHERMAN ACT DID COVER OFFICERS WHOSE CONDUCT CONSTITUTED THE OFFENSE
(WITHOUT DISTINCTION AS TO THE CAPACITY IN WHICH THE OFFICER WAS
ACTING), BUT WERE DISAPPOINTED IN THE SYMPATHY SHOWN TO CORPORATE
OFFICERS BY JUDGES, JURIES, AND PROSECUTORS.  SECOND, THE PROPONENTS
FEARED THAT THE PRESENT SHERMAN ACT DID NOT COVER OFFICERS WHO MERELY
AUTHORIZED OR ORDERED THE COMMISSION OF THE OFFENSES.  THESE IDEAS WERE
CLEARLY EXPRESSED BY REPRESENTATIVE FLOYD, A HOUSE MANAGER: 

"THE PURPOSE WE HAD WAS TO MAKE IT CLEAR THAT, WHEN A CORPORATION HAD
BEEN GUILTY, THOSE OFFICERS, AGENTS, AND DIRECTORS OF THE CORPORATION
THAT EITHER AUTHORIZED, ORDERED, OR DID THE THING PROHIBITED SHOULD BE
GUILTY.  UNDER THE EXISTING LAW, AND WITHOUT THAT PROVISION OF THE
STATUTE, THE PERSON WHO DID THE THINGS WOULD UNDOUBTEDLY BE GUILTY; BUT
IN THE ENFORCEMENT OF THE CRIMINAL PROVISIONS OF THE SHERMAN LAW,
EXPERIENCE HAS DEMONSTRATED THAT BOTH JURIES AND COURTS ARE SLOW TO
CONVICT MEN WHO HAVE SIMPLY DONE ACTS AUTHORIZED OR ORDERED BY SOME
OFFICERS OF THE CONCERN HIGHER UP, AND THE WORDS 'AUTHORIZED' AND
'ORDERED' WERE INTRODUCED TO REACH THE REAL OFFENDERS, THE MEN WHO
CAUSED THE THINGS TO BE DONE  ...  ."  51 CONG. REC. 9609.  SEE 51
CONG. REC. 9074, 9185, 9676, 9677, 9678, 9679, 16317.    THIRD, THE
PROPONENTS WERE FEARFUL THAT THE SHERMAN ACT MIGHT NOT COVER THE
ACTIVITIES OF AN OFFICER WHICH MADE A SINGLE "LINK" IN THE "CHAIN" OF
EVENTS CONSTITUTING THE ANTITRUST VIOLATION.  HENCE, THE PROVISION
FIXING RESPONSIBILITY FOR AN ACT CONSTITUTING "IN WHOLE OR IN PART" THE
VIOLATIONS.  51 CONG. REC. 9679, 16275, 16317. 

WE EXAMINE THIS LEGISLATIVE HISTORY IN ORDER TO ASCERTAIN THE INTENT
OF CONGRESS AS TO THE ULTIMATE PURPOSE OF SEC. 14 OF THE CLAYTON ACT. 
UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, 591-592;
SCHWEGMANN BROS. V. CALVERT DISTILLERS CORP., 341 U.S. 384, 390-395;
FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37, 43-46, 49; CORN
PRODUCTS REFINING CO. V. FEDERAL TRADE COMM'N, 324 U.S. 726, 734-737. 
HOW MEMBERS OF THE 1914 CONGRESS MAY HAVE INTERPRETED THE 1890 ACT IS
NOT OF WEIGHT FOR THE PURPOSE OF CONSTRUING THE SHERMAN ACT.  FEDERAL
HOUSING ADMINISTRATION V. DARLINGTON, INC., 358 U.S. 84; RAINWATER V.
UNITED STATES, 356 U.S. 590; KOSHKONONG V. BURTON, 104 U.S. 668; OGDEN
V. BLACKLEDGE, 2 CRANCH 272, 277.  SEE UNITED STATES V. STAFOFF, 260
U.S. 477; PENN MUTUAL LIFE INS. CO. V. LEDERER, 252 U.S. 523; LEVINDALE
LEAD & ZINC MINING CO. V. COLEMAN, 241 U.S. 432; TALBOT V. SEEMAN, 1
CRANCH 1, 35.  BUT SEE SIOUX TRIBE V. UNITED STATES, 316 U.S. 317;
STOCKDALE V. INSURANCE CO., 20 WALL.  323, 331 (SEPARATE OPINION);
UNITED STATES V. FREEMAN, 3 HOW.  556.  CF. UNITED STATES V. E.I. DU
PONT DE NEMOURS & CO., 353 U.S. 586. 

BASIC PENAL PROVISIONS AND A MANDATE TO PROSECUTORS TO BRING ALL
RESPONSIBLE PERSONS TO JUSTICE.  IN THE LIGHT OF THE CONGRESSIONAL
PURPOSE REVEALED ON THE FACE OF THE STATUTE AND BY THE LEGISLATIVE
HISTORY, THIS COURT CANNOT CONSTRUE SEC. 14 AS A RESTRICTION OF SEC. 1
OF THE SHERMAN ACT.  THUS, INSOFAR AS SEC. 14 RELATES TO THE CORPORATE
OFFICER WHO PARTICIPATES IN THE SHERMAN ACT VIOLATION, WHETHER OR NOT
IN A REPRESENTATIVE CAPACITY, NO CHANGE WAS EITHER INTENDED OR
EFFECTED. 

THE CASES SUBSEQUENT TO THE CLAYTON ACT REVEAL AN UNDERSTANDING IN
ACCORD WITH OUR OWN.  THE GOVERNMENT CONTINUED TO SEEK INDICTMENTS OF
CORPORATE OFFICERS UNDER THE SHERMAN ACT, NOT THE CLAYTON ACT, AND MANY
CONVICTIONS WERE OBTAINED.  SEE, E.G., UNITED STATES V. SOCONY-VACUUM
OIL CO., 310 U.S. 150; UNITED STATES V. TRENTON POTTERIES CO., 273 U.S.
392; AMERICAN TOBACCO CO. V. UNITED STATES, 147 F.2D 93 (C.A. 6TH
CIR.), AFFIRMED, 328 U.S. 781. 

THE APPELLEE DOES NOT CALL TO OUR ATTENTION ANY CASE DURING THIS TIME
IN WHICH THE CONTENTION HE NOW MAKES WAS SUCCESSFULLY URGED.  HE
SUGGESTS THAT THE DEARTH OF CASES ON THIS POINT REFLECTS THE BELIEF ON
THE PART OF CORPORATE OFFICERS THAT, BECAUSE OF THE IDENTICAL PENALTIES
OF THE CLAYTON ACT, THE SUCCESSFUL CHALLENGE TO A SHERMAN ACT
INDICTMENT WOULD BE AN ACADEMIC VICTORY.  WE CANNOT EVEN ATTEMPT TO
EVALUATE THE MOTIVES OF INDIVIDUAL DEFENDANTS IN RAISING OR NOT RAISING
DEFENSES, EVEN IF WE REGARDED THE MATTER AS BEING SIGNIFICANT, WHICH WE
DO NOT. 

THE GOVERNMENT, ON THE OTHER HAND, RELIES UPON UNITED STATES V.
ATLANTIC COMM'N CO., 45 F. SUPP. 187 (D.C.E.D.N.C.); UNITED STATES V.
GENERAL MOTORS CORP., 26 F. SUPP. 353 (D.C.N.D. IND.), AFFIRMED, 121
F.2D 376 (C.A. 7TH CIR.); AND UNITED STATES V. NATIONAL MALLEABLE &
STEEL CASTINGS CO., 6 F.2D 40 (D.C.N.D. OHIO), HOLDING THAT NOTHING IN
SEC. 14 OF THE CLAYTON ACT ALTERED THE EXISTING LIABILITY FOR
PROSECUTION OF ALL OFFICERS WHO PARTICIPATE IN THE VIOLATION OF THE
SHERMAN ACT.  WITH THIS, WE AGREE. 

WE ALSO AGREE THAT THERE IS NOTHING IN THE 1955 AMENDMENT TO THE
SHERMAN ACT NOR IN ITS LEGISLATIVE HISTORY TO INDICATE THAT THE
CONGRESS INTENDED TO RESTRICT THE APPLICABILITY OF THE INCREASED FINE
TO CORPORATIONS.  SEE 69 STAT. 282; S. REP. NO. 618, 84TH CONG., 1ST
SESS.; H.R. REP. NO. 70, 84TH CONG., 1ST SESS. 

BASED UPON THE FOREGOING, WE HOLD THAT A CORPORATE OFFICER IS SUBJECT
TO PROSECUTION UNDER SEC. 1 OF THE SHERMAN ACT WHENEVER HE KNOWINGLY
PARTICIPATES IN EFFECTING THE ILLEGAL CONTRACT, COMBINATION, OR
CONSPIRACY - BE HE ONE WHO AUTHORIZES, ORDERS, OR HELPS PERPETRATE THE
CRIME - REGARDLESS OF WHETHER HE IS ACTING IN A REPRESENTATIVE
CAPACITY.  IT FOLLOWS THAT THE DISTRICT COURT ERRED WHEN IT DISMISSED
THE INDICTMENT AGAINST THE APPELLEE.  THE CASE IS REVERSED AND REMANDED
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  IN THE GOVERNMENT'S BRIEF THE SOLICITOR GENERAL CITES 40 CASES
IN WHICH CORPORATE OFFICERS WERE INDICTED UNDER THE SHERMAN ACT BETWEEN
1890 AND 1914.  BRIEF FOR APPELLANT, PP.  69-72. 

FN2  "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 ...  .
EVERY PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN ANY COMBINATION
OR CONSPIRACY DECLARED  ...  TO BE ILLEGAL SHALL BE DEEMED GUILTY OF A
MISDEMEANOR, AND, ON CONVICTION THEREOF, SHALL BE PUNISHED BY FINE NOT
EXCEEDING FIFTY THOUSAND DOLLARS, OR BY IMPRISONMENT NOT EXCEEDING ONE
YEAR, OR BY BOTH SAID PUNISHMENTS, IN THE DISCRETION OF THE COURT." 

FN3  "IT IS NOT WITHOUT SIGNIFICANCE THAT OFFENSES AS SERIOUS, IN
CONGRESSIONAL OPINION, AS THOSE CREATED BY THIS STATUTE ARE MADE
MISDEMEANORS.  WHEN THE STATUTE DECLARES THAT CERTAIN ACTS NOTORIOUSLY
TO BE ACCOMPLISHED UNDER MODERN BUSINESS CONDITIONS ONLY THROUGH
CORPORATE INSTRUMENTALITY SHALL BE MISDEMEANORS, AND FURTHER DECLARES
THAT THE WORD 'PERSON' AS USED THEREIN SHALL BE DEEMED TO INCLUDE
CORPORATIONS, SUCH STATUTE SEEMS TO ME CLEARLY PASSED IN CONTEMPLATION
OF THE ELEMENTARY PRINCIPLE THAT IN RESPECT OF A MISDEMEANOR ALL THOSE
WHO PERSONALLY AID OR ABET IN ITS COMMISSION ARE INDICTABLE AS
PRINCIPALS  ...  .  I AM COMPELLED TO THE CONCLUSION THAT, UNDER THIS
STATUTE, IF THE OFFICER OR AGENT OF A CORPORATION CHARGED WITH FAULT BE
ALSO CHARGED WITH PERSONAL PARTICIPATION, DIRECTION, OR ACTIVITY
THEREIN, BOTH MAY BE SO CHARGED IN THE SAME INDICTMENT."  149 F., AT
832. 

FN4  APPELLEE ALSO ARGUES, "THE GOVERNMENT IN THIS CASE HAS NOT
EXPRESSLY RELIED ON AN AIDER AND ABETTOR THEORY, BUT  ...  IT HAS
SOUGHT TACIT SUPPORT FROM THE THEORY."  BRIEF FOR APPELLEE, PP. 62-68. 
UNDER THE VIEW WE TAKE OF THE CASE, IT IS UNNECESSARY TO CONSIDER THE
APPLICATION OF THE GENERAL AIDER AND ABETTOR STATUTE, 18 U.S.C. SEC.
2. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN IN THE OPINION OF THE CHIEF JUSTICE WITH SOME ADDITIONAL
OBSERVATIONS, BELIEVED WARRANTED BY THE CIRCUMSTANCE THAT THE HOLDING
BELOW HAS SINCE BEEN FOLLOWED BY FIVE DISTRICT COURTS, WITH ONLY TWO
OTHERS TO THE CONTRARY.  (FN1) 

THE LANGUAGE OF SEC. 1 OF THE SHERMAN ACT, PROVIDING A PENALTY FOR
"EVERY PERSON" WHO ENGAGES IN A CONSPIRACY OR MAKES A CONTRACT IN
RESTRAINT OF TRADE, OF COURSE PRESENTS A SERIOUS OBSTACLE TO APPELLEE'S
CONTENTION THAT HE CANNOT BE PROSECUTED THEREUNDER.  I AGREE WITH THE
COURT THAT SEC. 8, DEFINING "PERSON" TO INCLUDE CORPORATIONS AND
ASSOCIATIONS, DOES NOT IMPLY THE EXCLUSION OF NATURAL PERSONS. 
MOREOVER, THE FICTION OF CORPORATE ENTITY, OPERATIVE TO PROTECT
OFFICERS FROM CONTRACT LIABILITY, HAD NEVER BEEN APPLIED AS A SHIELD
AGAINST CRIMINAL PROSECUTIONS WHEN THE SHERMAN ACT WAS PASSED.  IN FACT
I THINK THERE CAN HAVE BEEN NO SERIOUS DOUBT EVEN AS EARLY AS 1890 THAT
OFFICERS COULD BE PUNISHED FOR CRIMES COMMITTED FOR THEIR
CORPORATIONS.  UNTIL WELL INTO THE NINETEENTH CENTURY THE CORPORATION
ITSELF COULD NOT BE CONVICTED; THE INDIVIDUALS WHO ACTED IN ITS NAME OF
COURSE COULD BE.  SEE THE ANONYMOUS NOTE OF HOLT, C.J., 12 MOD. 559,
CASE 935, 88 ENG. REP. 1518 (K.B. 1701); REX V. MEDLEY, 6 CAR.  & P.
292, 297, 299, 172 ENG. REP. 1246, 1249-1250 (K.B. 1834); STATE V.
GREAT WORKS MILLING & MFG. CO., 20 ME.  41, 44 (1841); BALLANTINE,
CORPORATIONS (REV. ED. 1946), SEC. 113.  HOWEVER, IT WAS RECOGNIZED
THAT CORPORATE OFFICERS COULD BE CONVICTED FOR "REPRESENTATIVE" CRIMES
EVEN AFTER THE CORPORATION'S IMMUNITY WAS WORN AWAY, REGINA V. GREAT
NORTH OF ENGLAND R. CO., (1846) 9 Q.B. 315, 325-327, 115 ENG. REP.
1294, 1298; STATE V. MORRIS & E.R. CO., 23 N.J.L. 360, 369 (1852);
STATE V. PATTON, 26 N.C. 16 (1843), IN LINE WITH THE RULE STATED IN 1
BISHOP, CRIMINAL LAW (7TH ED. 1882), SEC. 892, THAT AN AGENT MIGHT BE
PUNISHED FOR CRIMES COMMITTED FOR HIS PRINCIPAL.  CF. UNITED STATES V.
MILLS, 7 PET. 138, 142.  A SUBSTANTIAL VOLUME OF CONVICTIONS OF
INDIVIDUALS FOR CORPORATE CRIMES HAD ACCUMULATED BY 1890.  (FN2)
CONGRESS LEGISLATED AGAINST THIS BACKGROUND; IT USED WORDS SUFFICIENTLY
BROAD THAT REPRESENTATIVE CRIMES FELL WITHIN THEIR ORDINARY MEANING;
AND THE NORMAL INFERENCE WOULD BE THAT CONGRESS INTENDED TO PUNISH
THOSE RESPONSIBLE FOR ACTS WHICH IT DECLARED UNLAWFUL. 

THE LEGISLATIVE HISTORY DISCLOSES NO INTENTION ON THE PART OF
CONGRESS TO EXEMPT THE REPRESENTATIVE OFFENSES OF CORPORATE OFFICERS. 
THE SHERMAN BILL, S. 1, 50TH CONG., 1ST SESS., WAS REPORTED TO THE
SENATE WITH CRIMINAL PENALTIES EXPRESSLY EXTENDING TO CORPORATE
OFFICERS AND AGENTS, BUT SENATOR SHERMAN SOON OMITTED THE CRIMINAL
PROVISIONS ALTOGETHER.  21 CONG. REC. 1765, 2455.  SENATOR REAGAN THEN
OFFERED A SUBSTITUTE BILL WHICH, AMONG OTHER THINGS, REINSTATED THE
CRIMINAL PROVISIONS, AGAIN EXPRESSLY NAMING CORPORATE AGENTS IN
SLIGHTLY DIFFERENT LANGUAGE.  ID., AT 2456.  APPELLEE RELIES ON
STATEMENTS MADE BY SENATOR SHERMAN IN THE DEBATE: 

"WHETHER THIS LAW SHOULD EXTEND TO MERE CLERKS, AS WAS PROPOSED IN
THE THIRD SECTION (AS REPORTED BY THE COMMITTEE), IS A MATTER OF GRAVE
DOUBT ...  .  TO RESTRAIN AND PREVENT THE ILLEGAL TENDENCY OF A
CORPORATION IS THE PROPER DUTY OF A COURT OF EQUITY.  TO PUNISH THE
CRIMINAL INTENTION OF AN OFFICER IS A MUCH MORE DIFFICULT PROCESS AND
MIGHT BE WELL LEFT TO THE FUTURE  ...  .  THESE CORPORATIONS DO NOT
CARE ABOUT YOUR CRIMINAL STATUTES AIMED AT THEIR SERVANTS  ...  ." 
ID., AT 2456, 2457, 2569. 

HOWEVER, THE ISSUE BEFORE THE SENATE AT THAT TIME WAS NOT WHETHER TO
EXEMPT CORPORATE OFFICERS FROM CRIMINAL PROSECUTION BUT WHETHER TO OMIT
CRIMINAL SANCTIONS ENTIRELY.  THE OBJECTIONS RAISED - THAT THE ADDITION
OF CRIMINAL PENALTIES WOULD RESULT IN STRICT CONSTRUCTION IN FAVOR OF
LEGALITY AND WOULD INFLICT PUNISHMENT FOR VIOLATIONS OF VAGUE AND
UNCERTAIN PROVISIONS - APPLIED AS WELL TO PERSONS ACTING FOR THEIR OWN
ACCOUNT, ADMITTEDLY INCLUDED WITHIN THE ACT AS PASSED, AS TO THOSE
ACTING FOR CORPORATIONS.  MOREOVER, SENATOR SHERMAN WAS PROMPTLY
OVERRULED BY A VOTE OF 34-12, ADOPTING THE REAGAN AMENDMENT AS AN
AMENDMENT TO THE SHERMAN BILL.  ID., AT 2611.  A NUMBER OF ADDITIONAL
AMENDMENTS RENDERED THE BILL QUITE UNWIELDY, SEE ID., AT 2655 (SENATOR
SHERMAN), AND IT WAS SUBMITTED TO THE COMMITTEE ON THE JUDICIARY FOR
TAILORING, ID., AT 2731.  THE BILL WAS REDRAFTED IN COMMITTEE TO ITS
APPROXIMATE PRESENT FORM AND PASSED BY A 52-1 VOTE, ID., AT 2901, 3145,
3153. 

I AM NOT PERSUADED, AS ARGUED BY THE APPELLEE, THAT THE GREATER
MARGIN OF SUPPORT FOR THE FINAL BILL THAN FOR THE REAGAN BILL INDICATES
THAT THE CRIMINAL LIABILITY OF CORPORATE OFFICERS WAS NARROWED. 
OPPOSITION TO THE REAGAN BILL WAS BASED IN PART ON ITS SPECIFICATION OF
UNLAWFUL PURPOSES THAT WOULD RENDER A COMBINATION A TRUST, ID., AT 2469
(SENATOR REAGAN), 2561 (SENATOR TELLER), WHICH WAS OMITTED BY THE
COMMITTEE, AND IN PART ON THE INCLUSION OF ANY CRIMINAL PENALTIES AT
ALL, A FEATURE COMMON TO THE REAGAN AND THE FINAL BILLS WHICH WAS
ACCEPTED AT THE END IN A SPIRIT OF COMPROMISE, AS IT WAS BY SENATOR
SHERMAN HIMSELF, ID., AT 2604, 2655.  NO SENATOR EVER  SUGGESTED, SO
FAR AS CAN BE FOUND, THAT CRIMINAL PENALTIES SHOULD BE PROVIDED FOR
CORPORATIONS AND FOR SELF-EMPLOYED OR "ULTRA VIRES" INDIVIDUALS ALONE. 
THIRTY-FOUR SENATORS - A MAJORITY OF THE WHOLE BODY - VOTED TO INCLUDE,
VIA THE REAGAN BILL, SANCTIONS AGAINST OFFICERS ACTING FOR THE
CORPORATION.   THE COMMITTEE'S REDUCTION OF THE EXPLICIT, BUT
CUMBERSOME, LANGUAGE OF THE REAGAN BILL TO THE SIMPLE AND ON ITS FACE
EQUALLY ALL-ENCOMPASSING "EVERY PERSON" APPEARS TO HAVE BEEN SIMPLY A
PART OF THE GENERAL STREAMLINING OF THE BILL THAT TOOK PLACE IN THE
COMMITTEE, WITH NO INTENTION OF CHANGING SUBSTANCE. 

THESE AND THE FURTHER CONSIDERATIONS DEALT WITH IN THE OPINION OF THE
CHIEF JUSTICE (FN3) LEAD TO THE CONCLUSION THAT THE INDICTMENT IN THIS
CASE MUST BE SUSTAINED. 

FN1  THE OPINION BELOW IS REPORTED AT 196 F. SUPP. 155 (W.D. MO.
1961).  IN ACCORD ARE UNITED STATES V. A.P. WOODSON CO., 198 F. SUPP.
582 (D.D.C. 1961), APPEAL PENDING, NO. 1019, O.T. 1961; UNITED STATES
V. MILK DISTRIBUTORS ASSN., 200 F. SUPP. 792 (D. MD. 1961); UNITED
STATES V. AMERICAN OPTICAL CO., 1961 TRADE CASES, PAR. 70,156 (E.D.
WIS. 1961), REVERSED SUB NOM. UNITED STATES V. KNISS, POST, P. 719;
UNITED STATES V. GENERAL MOTORS CORP., 1962 TRADE CASES, PAR. 70,203
(S.D. CAL. 1962), REVERSED SUB NOM. UNITED STATES V. STALEY, POST, P.
719; AND UNITED STATES V. ENGELHARD-HANOVIA, INC., 204 F. SUPP. 407
(S.D.N.Y. 1962), APPEAL PENDING SUB NOM.  UNITED STATES V. BROWN, NO.
983, O.T. 1961.    IN UNITED STATES V. NORTH AMERICAN VAN LINES, INC.,
202 F. SUPP. 639 (D.D.C. 1962), THE COURT REFUSED TO DISMISS AN
INDICTMENT OF CORPORATE OFFICERS, HOLDING THAT THEY WERE NOT CHARGED
WITH ACTING SOLELY IN A REPRESENTATIVE CAPACITY.  IT WENT ON TO SAY
THAT IN ANY EVENT THE SHERMAN ACT APPLIED TO REPRESENTATIVE ACTS.  WE
ARE INFORMED BY THE PARTIES HERE THAT IN UNITED STATES V. PACKARD-BELL
ELECTRONICS CORP., CR. NO. 30158, S.D. CAL., A MOTION TO DISMISS WAS
DENIED WITHOUT OPINION.  THE INDICTMENT, SEE 5 CCH TRADE REG. REP.
(1961), PAR. 45,061, CASE 1632, CHARGED VIOLATIONS OF SEC. 14 AS WELL
AS OF SEC. 1. 

FN2  MOORE V. STATE, 48 MISS.  147 (1873); ELSBERRY V. STATE, 52 ALA.
8, 10 (1875); EX PARTE SCHMIDT, 2 TEX. APP. 196 (1877); COWLEY V.
PEOPLE, 83 N.Y. 464, 469 (1881); STATE V. PARSONS, 12 MO. APP. 205
(1882); CITY OF WYANDOTTE V. CORRIGAN, 35 KAN. 21, 26, 10 P. 99, 102
(1886).  THE ONLY DECISION FOUND TO THE CONTRARY IS COMMONWEALTH V.
DEMUTH, 12 S.&R. 389, 392 (PA. 1825), IN WHICH A PARTICULAR STATUTE WAS
READ NOT TO IMPOSE A DUTY ON INDIVIDUAL OFFICERS.  THAT THIS DID NOT
STATE A GENERAL RULE EVEN IN PENNSYLVANIA WAS MADE CLEAR BY THE SUPREME
COURT OF THAT STATE IN COMMONWEALTH V. OHIO & P.R. CO., 1 GRANT 329,
350 (1856)(DICTUM). 

FN3  I FIND LITTLE SUPPORT, HOWEVER, FOR OUR CONCLUSION IN UNITED
STATES V. MACANDREWS & FORBES CO., 149 F. 823 (C.C.S.D.N.Y. 1906), OR
UNITED STATES V. WINSLOW, 195 F. 578 (D. MASS. 1912), DESPITE SOME OF
THE LANGUAGE IN THOSE OPINIONS.  NEITHER CASE SQUARELY UPHOLDS CRIMINAL
RESPONSIBILITY IN A "REPRESENTATIVE" CAPACITY.  AMONG OTHER THINGS THE
COURT IN MACANDREWS & FORBES DECLARED IT POSSIBLE TO INFER FROM THE
INDICTMENT THAT THE CORPORATIONS WERE "DOING ONE THING AND THE
INDIVIDUALS ANOTHER AT OR ABOUT THE SAME TIME, WHICH THINGS WERE
UTTERLY DIFFERENT  ...  .  IT IS CONCEIVABLE THAT THE EVIDENCE MAY SHOW
THAT THE INDIVIDUAL DEFENDANTS WERE NOT FREE AGENTS, BUT ACTED UNDER A
SPECIES OF CORPORATE COERCION, FOR WHICH THEY SHOULD NOT BE HELD
PERSONALLY RESPONSIBLE; BUT IT IS IMPOSSIBLE TO ARRIVE AT THIS
CONCLUSION ON DEMURRER."  149 F., AT 832.  IN WINSLOW, THE INDICTMENT
CHARGED THE OFFICERS WITH CONTROLLING THE INDUSTRY "BY THE DEVICE AND
MEANS OF AND THROUGH AND IN THE NAMES OF" CERTAIN CORPORATIONS.  195
F., AT 591.  THUS ALL THAT WAS HELD IN MACANDREWS & FORBES, AND ALL
THAT NEEDED TO BE HELD IN WINSLOW, WAS THAT CORPORATE OFFICERS ARE NOT
SHIELDED FROM CRIMINAL RESPONSIBILITY WHEN THEY ACT ON THEIR OWN
INDIVIDUAL ACCOUNT OR WHEN THEY USE A SHAM CORPORATION AS A MEANS OF
FURTHERING THEIR PERSONAL ENDS. 

NOR DO I FIND MUCH WEIGHT IN THE DECISIONS SINCE 1914 UPHOLDING THE
APPLICABILITY OF THE SHERMAN ACT TO REPRESENTATIVE CRIMES OF CORPORATE
OFFICERS; WHILE THE PENALTIES FOR VIOLATING THE TWO STATUTES WERE
IDENTICAL THERE WAS LITTLE INCENTIVE TO ARGUE TO THE CONTRARY.  THE
MOST THAT CAN BE SAID OF THE DECISIONS SINCE 1890 IS THAT THEY HAVE
SUGGESTED NO DOUBT OF THE APPLICABILITY OF THE SHERMAN ACT TO CORPORATE
OFFICERS ACTING ONLY IN A REPRESENTATIVE CAPACITY. 
..END :



















ENGEL V. VITALE 370 U.S. 421 


NO. 468.  ARGUED APRIL 3, 1962 - DECIDED JUNE 25, 1962 - 10 N.Y.2D 174,
176 N.E.2D 579, REVERSED. 


BECAUSE OF THE PROHIBITION OF THE FIRST AMENDMENT AGAINST THE
ENACTMENT OF ANY LAW "RESPECTING AN ESTABLISHMENT OF RELIGION," WHICH
IS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT, STATE
OFFICIALS MAY NOT COMPOSE AN OFFICIAL STATE PRAYER AND REQUIRE THAT IT
BE RECITED IN THE PUBLIC SCHOOLS OF THE STATE AT THE BEGINNING OF EACH
SCHOOL DAY - EVEN IF THE PRAYER IS DENOMINATIONALLY NEUTRAL AND PUPILS
WHO WISH TO DO SO MAY REMAIN SILENT OR BE EXCUSED FROM THE ROOM WHILE
THE PRAYER IS BEING RECITED.  PP. 422-436. 

ENGEL ET AL. V. VITALE ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO.
9, NEW HYDE PARK, NEW YORK, ACTING IN ITS OFFICIAL CAPACITY UNDER STATE
LAW, DIRECTED THE SCHOOL DISTRICT'S PRINCIPAL TO CAUSE THE FOLLOWING
PRAYER TO BE SAID ALOUD BY EACH CLASS IN THE PRESENCE OF A TEACHER AT
THE BEGINNING OF EACH SCHOOL DAY: 

"ALMIGHTY GOD, WE ACKNOWLEDGE OUR DEPENDENCE UPON THEE, AND WE BEG
THY BLESSINGS UPON US, OUR PARENTS, OUR TEACHERS AND OUR COUNTRY." 

THIS DAILY PROCEDURE WAS ADOPTED ON THE RECOMMENDATION OF THE STATE
BOARD OF REGENTS, A GOVERNMENTAL AGENCY CREATED BY THE STATE
CONSTITUTION TO WHICH THE NEW YORK LEGISLATURE HAS GRANTED BROAD
SUPERVISORY, EXECUTIVE, AND LEGISLATIVE POWERS OVER THE STATE'S PUBLIC
SCHOOL SYSTEM.  (FN1) THESE STATE OFFICIALS COMPOSED THE PRAYER WHICH
THEY RECOMMENDED AND PUBLISHED AS A PART OF THEIR "STATEMENT ON MORAL
AND SPIRITUAL TRAINING IN THE SCHOOLS," SAYING:  "WE BELIEVE THAT THIS
STATEMENT WILL BE SUBSCRIBED TO BY ALL MEN AND WOMEN OF GOOD WILL, AND
WE CALL UPON ALL OF THEM TO AID IN GIVING LIFE TO OUR PROGRAM." 

SHORTLY AFTER THE PRACTICE OF RECITING THE REGENTS' PRAYER WAS
ADOPTED BY THE SCHOOL DISTRICT, THE PARENTS OF TEN PUPILS BROUGHT THIS
ACTION IN A NEW YORK STATE COURT INSISTING THAT USE OF THIS OFFICIAL
PRAYER IN THE PUBLIC SCHOOLS WAS CONTRARY TO THE BELIEFS, RELIGIONS, OR
RELIGIOUS PRACTICES OF BOTH THEMSELVES AND THEIR CHILDREN.  AMONG OTHER
THINGS, THESE PARENTS CHALLENGED THE CONSTITUTIONALITY OF BOTH THE
STATE LAW AUTHORIZING THE SCHOOL DISTRICT TO DIRECT THE USE OF PRAYER
IN PUBLIC SCHOOLS AND THE SCHOOL DISTRICT'S REGULATION ORDERING THE
RECITATION OF THIS PARTICULAR PRAYER ON THE GROUND THAT THESE ACTIONS
OF OFFICIAL GOVERNMENTAL AGENCIES VIOLATE THAT PART OF THE FIRST
AMENDMENT OF THE FEDERAL CONSTITUTION WHICH COMMANDS THAT "CONGRESS
SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION" - A COMMAND
WHICH WAS "MADE APPLICABLE TO THE STATE OF NEW YORK BY THE FOURTEENTH
AMENDMENT OF THE SAID CONSTITUTION."  THE NEW YORK COURT OF APPEALS,
OVER THE DISSENTS OF JUDGES DYE AND FULD, SUSTAINED AN ORDER OF THE
LOWER STATE COURTS WHICH HAD UPHELD THE POWER OF NEW YORK TO USE THE
REGENTS' PRAYER AS A PART OF THE DAILY PROCEDURES OF ITS PUBLIC SCHOOLS
SO LONG AS THE SCHOOLS DID NOT COMPEL ANY PUPIL TO JOIN IN THE PRAYER
OVER HIS OR HIS PARENTS' OBJECTION.  (FN2)  WE GRANTED CERTIORARI TO
REVIEW THIS IMPORTANT DECISION INVOLVING RIGHTS PROTECTED BY THE FIRST
AND FOURTEENTH AMENDMENTS.  (FN3) 

WE THINK THAT BY USING ITS PUBLIC SCHOOL SYSTEM TO ENCOURAGE
RECITATION OF THE REGENTS' PRAYER, THE STATE OF NEW YORK HAS ADOPTED A
PRACTICE WHOLLY INCONSISTENT WITH THE ESTABLISHMENT CLAUSE.  THERE CAN,
OF COURSE, BE NO DOUBT THAT NEW YORK'S PROGRAM OF DAILY CLASSROOM
INVOCATION OF GOD'S BLESSINGS AS PRESCRIBED IN THE REGENTS' PRAYER IS A
RELIGIOUS ACTIVITY.  IT IS A SOLEMN AVOWAL OF DIVINE FAITH AND
SUPPLICATION FOR THE BLESSINGS OF THE ALMIGHTY.  THE NATURE OF SUCH A
PRAYER HAS ALWAYS BEEN RELIGIOUS, NONE OF THE RESPONDENTS HAS DENIED
THIS AND THE TRIAL COURT EXPRESSLY SO FOUND: 

"THE RELIGIOUS NATURE OF PRAYER WAS RECOGNIZED BY JEFFERSON AND HAS
BEEN CONCURRED IN BY THEOLOGICAL WRITERS, THE UNITED STATES SUPREME
COURT AND STATE COURTS AND ADMINISTRATIVE OFFICIALS, INCLUDING NEW
YORK'S COMMISSIONER OF EDUCATION.  A COMMITTEE OF THE NEW YORK
LEGISLATURE HAS AGREED. 

"THE BOARD OF REGENTS AS AMICUS CURIAE, THE RESPONDENTS AND
INTERVENORS ALL CONCEDE THE RELIGIOUS NATURE OF PRAYER, BUT SEEK TO
DISTINGUISH THIS PRAYER BECAUSE IT IS BASED ON OUR SPIRITUAL HERITAGE
...  ."  (FN4) 

THE PETITIONERS CONTEND AMONG OTHER THINGS THAT THE STATE LAWS
REQUIRING OR PERMITTING USE OF THE REGENTS' PRAYER MUST BE STRUCK DOWN
AS A VIOLATION OF THE ESTABLISHMENT CLAUSE BECAUSE THAT PRAYER WAS
COMPOSED BY GOVERNMENTAL OFFICIALS AS A PART OF A GOVERNMENTAL PROGRAM
TO FURTHER RELIGIOUS BELIEFS.  FOR THIS REASON, PETITIONERS ARGUE, THE
STATE'S USE OF THE REGENTS' PRAYER IN ITS PUBLIC SCHOOL SYSTEM BREACHES
THE CONSTITUTIONAL WALL OF SEPARATION BETWEEN CHURCH AND STATE.  WE
AGREE WITH THAT CONTENTION SINCE WE THINK THAT THE CONSTITUTIONAL
PROHIBITION AGAINST LAWS RESPECTING AN ESTABLISHMENT OF RELIGION MUST
AT LEAST MEAN THAT IN THIS COUNTRY IT IS NO PART OF THE BUSINESS OF
GOVERNMENT TO COMPOSE OFFICIAL PRAYERS FOR ANY GROUP OF THE AMERICAN
PEOPLE TO RECITE AS A PART OF A RELIGIOUS PROGRAM CARRIED ON BY
GOVERNMENT. 

IT IS A MATTER OF HISTORY THAT THIS VERY PRACTICE OF ESTABLISHING
GOVERNMENTALLY COMPOSED PRAYERS FOR RELIGIOUS SERVICES WAS ONE OF THE
REASONS WHICH CAUSED MANY OF OUR EARLY COLONISTS TO LEAVE ENGLAND AND
SEEK RELIGIOUS FREEDOM IN AMERICA.  THE BOOK OF COMMON PRAYER, WHICH
WAS CREATED UNDER GOVERNMENTAL DIRECTION AND WHICH WAS APPROVED BY ACTS
OF PARLIAMENT IN 1548 AND 1549, (FN5) SET OUT IN MINUTE DETAIL THE
ACCEPTED FORM AND CONTENT OF PRAYER AND OTHER RELIGIOUS CEREMONIES TO
BE USED IN THE ESTABLISHED, TAX-SUPPORTED CHURCH OF ENGLAND.  (FN6)
THE CONTROVERSIES OVER THE BOOK AND WHAT SHOULD BE ITS CONTENT
REPEATEDLY THREATENED TO DISRUPT THE PEACE OF THAT COUNTRY AS THE
ACCEPTED FORMS OF PRAYER IN THE ESTABLISHED CHURCH CHANGED WITH THE
VIEWS OF THE PARTICULAR RULER THAT HAPPENED TO BE IN CONTROL AT THE
TIME.  (FN7)  POWERFUL GROUPS REPRESENTING SOME OF THE VARYING
RELIGIOUS VIEWS OF THE PEOPLE STRUGGLED AMONG THEMSELVES TO IMPRESS
THEIR PARTICULAR VIEWS UPON THE GOVERNMENT AND OBTAIN AMENDMENTS OF THE
BOOK MORE SUITABLE TO THEIR RESPECTIVE NOTIONS OF HOW RELIGIOUS
SERVICES SHOULD BE CONDUCTED IN ORDER THAT THE OFFICIAL RELIGIOUS
ESTABLISHMENT WOULD ADVANCE THEIR PARTICULAR RELIGIOUS BELIEFS.  (FN8)
OTHER GROUPS, LACKING THE NECESSARY POLITICAL POWER TO INFLUENCE THE
GOVERNMENT ON THE MATTER, DECIDED TO LEAVE ENGLAND AND ITS ESTABLISHED
CHURCH AND SEEK FREEDOM IN AMERICA FROM ENGLAND'S GOVERNMENTALLY
ORDAINED AND SUPPORTED RELIGION. 

IT IS AN UNFORTUNATE FACT OF HISTORY THAT WHEN SOME OF THE VERY
GROUPS WHICH HAD MOST STRENUOUSLY OPPOSED THE ESTABLISHED CHURCH OF
ENGLAND FOUND THEMSELVES SUFFICIENTLY IN CONTROL OF COLONIAL
GOVERNMENTS IN THIS COUNTRY TO WRITE THEIR OWN PRAYERS INTO LAW, THEY
PASSED LAWS MAKING THEIR OWN RELIGION THE OFFICIAL RELIGION OF THEIR
RESPECTIVE COLONIES.  (FN9)  INDEED, AS LATE AS THE TIME OF THE
REVOLUTIONARY WAR, THERE WERE ESTABLISHED CHURCHES IN AT LEAST EIGHT OF
THE THIRTEEN FORMER COLONIES AND ESTABLISHED RELIGIONS IN AT LEAST FOUR
OF THE OTHER FIVE.  (FN10)  BUT THE SUCCESSFUL REVOLUTION AGAINST
ENGLISH POLITICAL DOMINATION WAS SHORTLY FOLLOWED BY INTENSE OPPOSITION
TO THE PRACTICE OF ESTABLISHING RELIGION BY LAW.  THIS OPPOSITION
CRYSTALLIZED RAPIDLY INTO AN EFFECTIVE POLITICAL FORCE IN VIRGINIA
WHERE THE MINORITY RELIGIOUS GROUPS SUCH AS PRESBYTERIANS, LUTHERANS,
QUAKERS AND BAPTISTS HAD GAINED SUCH STRENGTH THAT THE ADHERENTS TO THE
ESTABLISHED EPISCOPAL CHURCH WERE ACTUALLY A MINORITY THEMSELVES.  IN
1785-1786, THOSE OPPOSED TO THE ESTABLISHED CHURCH, LED BY JAMES
MADISON AND THOMAS JEFFERSON, WHO, THOUGH THEMSELVES NOT MEMBERS OF ANY
OF THESE DISSENTING RELIGIOUS GROUPS, OPPOSED ALL RELIGIOUS
ESTABLISHMENTS BY LAW ON GROUNDS OF PRINCIPLE, OBTAINED THE ENACTMENT
OF THE FAMOUS "VIRGINIA BILL FOR RELIGIOUS LIBERTY" BY WHICH ALL
RELIGIOUS GROUPS WERE PLACED ON AN EQUAL FOOTING SO FAR AS THE STATE
WAS CONCERNED.  (FN11)  SIMILAR THOUGH LESS FAR-REACHING LEGISLATION
WAS BEING CONSIDERED AND PASSED IN OTHER STATES.  (FN12) 

BY THE TIME OF THE ADOPTION OF THE CONSTITUTION, OUR HISTORY SHOWS
THAT THERE WAS A WIDESPREAD AWARENESS AMONG MANY AMERICANS OF THE
DANGERS OF A UNION OF CHURCH AND STATE.  THESE PEOPLE KNEW, SOME OF
THEM FROM BITTER PERSONAL EXPERIENCE, THAT ONE OF THE GREATEST DANGERS
TO THE FREEDOM OF THE INDIVIDUAL TO WORSHIP IN HIS OWN WAY LAY IN THE
GOVERNMENT'S PLACING ITS OFFICIAL STAMP OF APPROVAL UPON ONE PARTICULAR
KIND OF PRAYER OR ONE PARTICULAR FORM OF RELIGIOUS SERVICES.  THEY KNEW
THE ANGUISH, HARDSHIP AND BITTER STRIFE THAT COULD COME WHEN ZEALOUS
RELIGIOUS GROUPS STRUGGLED WITH ONE ANOTHER TO OBTAIN THE GOVERNMENT'S
STAMP OF APPROVAL FROM EACH KING, QUEEN, OR PROTECTOR THAT CAME TO
TEMPORARY POWER.  THE CONSTITUTION WAS INTENDED TO AVERT A PART OF THIS
DANGER BY LEAVING THE GOVERNMENT OF THIS COUNTRY IN THE HANDS OF THE
PEOPLE RATHER THAN IN THE HANDS OF ANY MONARCH.  BUT THIS SAFEGUARD WAS
NOT ENOUGH.  OUR FOUNDERS WERE NO MORE WILLING TO LET THE CONTENT OF
THEIR PRAYERS AND THEIR PRIVILEGE OF PRAYING WHENEVER THEY PLEASED BE
INFLUENCED BY THE BALLOT BOX THAN THEY WERE TO LET THESE VITAL MATTERS
OF PERSONAL CONSCIENCE DEPEND UPON THE SUCCESSION OF MONARCHS.  THE
FIRST AMENDMENT WAS ADDED TO THE CONSTITUTION TO STAND AS A GUARANTEE
THAT NEITHER THE POWER NOR THE PRESTIGE OF THE FEDERAL GOVERNMENT WOULD
BE USED TO CONTROL, SUPPORT OR INFLUENCE THE KINDS OF PRAYER THE
AMERICAN PEOPLE CAN SAY - THAT THE PEOPLE'S RELIGIONS MUST NOT BE
SUBJECTED TO THE PRESSURES OF GOVERNMENT FOR CHANGE EACH TIME A NEW
POLITICAL ADMINISTRATION IS ELECTED TO OFFICE.  UNDER THAT AMENDMENT'S
PROHIBITION AGAINST GOVERNMENTAL ESTABLISHMENT OF RELIGION, AS
REINFORCED BY THE PROVISIONS OF THE FOURTEENTH AMENDMENT, GOVERNMENT IN
THIS COUNTRY, BE IT STATE OR FEDERAL, IS WITHOUT POWER TO PRESCRIBE BY
LAW ANY PARTICULAR FORM OF PRAYER WHICH IS TO BE USED AS AN OFFICIAL
PRAYER IN CARRYING ON ANY PROGRAM OF GOVERNMENTALLY SPONSORED RELIGIOUS
ACTIVITY. 

THERE CAN BE NO DOUBT THAT NEW YORK'S STATE PRAYER PROGRAM OFFICIALLY
ESTABLISHES THE RELIGIOUS BELIEFS EMBODIED IN THE REGENTS' PRAYER.  THE
RESPONDENTS' ARGUMENT TO THE CONTRARY, WHICH IS LARGELY BASED UPON THE
CONTENTION THAT THE REGENTS' PRAYER IS "NON-DENOMINATIONAL" AND THE
FACT THAT THE PROGRAM, AS MODIFIED AND APPROVED BY STATE COURTS, DOES
NOT REQUIRE ALL PUPILS TO RECITE THE PRAYER BUT PERMITS THOSE WHO WISH
TO DO SO TO REMAIN SILENT OR BE EXCUSED FROM THE ROOM, IGNORES THE
ESSENTIAL NATURE OF THE PROGRAM'S CONSTITUTIONAL DEFECTS.  NEITHER THE
FACT THAT THE PRAYER MAY BE DENOMINATIONALLY NEUTRAL NOR THE FACT THAT
ITS OBSERVANCE ON THE PART OF THE STUDENTS IS VOLUNTARY CAN SERVE TO
FREE IT FROM THE LIMITATIONS OF THE ESTABLISHMENT CLAUSE, AS IT MIGHT
FROM THE FREE EXERCISE CLAUSE, OF THE FIRST AMENDMENT, BOTH OF WHICH
ARE OPERATIVE AGAINST THE STATES BY VIRTUE OF THE FOURTEENTH
AMENDMENT.  ALTHOUGH THESE TWO CLAUSES MAY IN CERTAIN INSTANCES
OVERLAP, THEY FORBID TWO QUITE DIFFERENT KINDS OF GOVERNMENTAL
ENCROACHMENT UPON RELIGIOUS FREEDOM.  THE ESTABLISHMENT CLAUSE, UNLIKE
THE FREE EXERCISE CLAUSE, DOES NOT DEPEND UPON ANY SHOWING OF DIRECT
GOVERNMENTAL COMPULSION AND IS VIOLATED BY THE ENACTMENT OF LAWS WHICH
ESTABLISH AN OFFICIAL RELIGION WHETHER THOSE LAWS OPERATE DIRECTLY TO
COERCE NONOBSERVING INDIVIDUALS OR NOT.  THIS IS NOT TO SAY, OF COURSE,
THAT LAWS OFFICIALLY PRESCRIBING A PARTICULAR FORM OF RELIGIOUS WORSHIP
DO NOT INVOLVE COERCION OF SUCH INDIVIDUALS.  WHEN THE POWER, PRESTIGE
AND FINANCIAL SUPPORT OF GOVERNMENT IS PLACED BEHIND A PARTICULAR
RELIGIOUS BELIEF, THE INDIRECT COERCIVE PRESSURE UPON RELIGIOUS
MINORITIES TO CONFORM TO THE PREVAILING OFFICIALLY APPROVED RELIGION IS
PLAIN.  BUT THE PURPOSES UNDERLYING THE ESTABLISHMENT CLAUSE GO MUCH
FURTHER THAN THAT.  ITS FIRST AND MOST IMMEDIATE PURPOSE RESTED ON THE
BELIEF THAT A UNION OF GOVERNMENT AND RELIGION TENDS TO DESTROY
GOVERNMENT AND TO DEGRADE RELIGION.  THE HISTORY OF GOVERNMENTALLY
ESTABLISHED RELIGION BOTH IN ENGLAND AND IN THIS COUNTRY, SHOWED THAT
WHENEVER GOVERNMENT HAD ALLIED ITSELF WITH ONE PARTICULAR FORM OF
RELIGION, THE INEVITABLE RESULT HAD BEEN THAT IT HAD INCURRED THE
HATRED, DISRESPECT AND EVEN CONTEMPT OF THOSE WHO HELD CONTRARY
BELIEFS.  (FN13)  THAT SAME HISTORY SHOWED THAT MANY PEOPLE HAD LOST
THEIR RESPECT FOR ANY RELIGION THAT HAD RELIED UPON THE SUPPORT OF
GOVERNMENT TO SPREAD ITS FAITH.  (FN14)  THE ESTABLISHMENT CLAUSE THUS
STANDS AS AN EXPRESSION OF PRINCIPLE ON THE PART OF THE FOUNDERS OF OUR
CONSTITUTION THAT RELIGION IS TOO PERSONAL, TOO SACRED, TOO HOLY, TO
PERMIT ITS "UNHALLOWED PERVERSION" BY A CIVIL MAGISTRATE.  (FN15)
ANOTHER PURPOSE OF THE ESTABLISHMENT CLAUSE RESTED UPON AN AWARENESS OF
THE HISTORICAL FACT THAT GOVERNMENTALLY ESTABLISHED RELIGIONS AND
RELIGIOUS PERSECUTIONS GO HAND IN HAND.  (FN16)  THE FOUNDERS KNEW THAT
ONLY A FEW YEARS AFTER THE BOOK OF COMMON PRAYER BECAME THE ONLY
ACCEPTED FORM OF RELIGIOUS SERVICES IN THE ESTABLISHED CHURCH OF
ENGLAND, AN ACT OF UNIFORMITY WAS PASSED TO COMPEL ALL ENGLISHMEN TO
ATTEND THOSE SERVICES AND TO MAKE IT A CRIMINAL OFFENSE TO CONDUCT OR
ATTEND RELIGIOUS GATHERINGS OF ANY OTHER KIND (FN17) - A LAW WHICH WAS
CONSISTENTLY FLOUTED BY DISSENTING RELIGIOUS GROUPS IN ENGLAND AND
WHICH CONTRIBUTED TO WIDESPREAD PERSECUTIONS OF PEOPLE LIKE JOHN BUNYAN
WHO PERSISTED IN HOLDING "UNLAWFUL RELIGIOUS MEETINGS  ... TO THE GREAT
DISTURBANCE AND DISTRACTION OF THE GOOD SUBJECTS OF THIS KINGDOM  ...
."  (FN18)  AND THEY KNEW THAT SIMILAR PERSECUTIONS HAD RECEIVED THE
SANCTION OF LAW IN SEVERAL OF THE COLONIES IN THIS COUNTRY SOON AFTER
THE ESTABLISHMENT OF OFFICIAL RELIGIONS IN THOSE COLONIES.  (FN19)  IT
WAS IN LARGE PART TO GET COMPLETELY AWAY FROM THIS SORT OF SYSTEMATIC
RELIGIOUS PERSECUTION THAT THE FOUNDERS BROUGHT INTO BEING OUR NATION,
OUR CONSTITUTION, AND OUR BILL OF RIGHTS WITH ITS PROHIBITION AGAINST
ANY GOVERNMENTAL ESTABLISHMENT OF RELIGION.  THE NEW YORK LAWS
OFFICIALLY PRESCRIBING THE REGENTS' PRAYER ARE INCONSISTENT BOTH WITH
THE PURPOSES OF THE ESTABLISHMENT CLAUSE AND WITH THE ESTABLISHMENT
CLAUSE ITSELF.    IT HAS BEEN ARGUED THAT TO APPLY THE CONSTITUTION IN
SUCH A WAY AS TO PROHIBIT STATE LAWS RESPECTING AN ESTABLISHMENT OF
RELIGIOUS SERVICES IN PUBLIC SCHOOLS IS TO INDICATE A HOSTILITY TOWARD
RELIGION OR TOWARD PRAYER.  NOTHING, OF COURSE, COULD BE MORE WRONG. 
THE HISTORY OF MAN IS INSEPARABLE FROM THE HISTORY OF RELIGION.  AND
PERHAPS IT IS NOT TOO MUCH TO SAY THAT SINCE THE BEGINNING OF THAT
HISTORY MANY PEOPLE HAVE DEVOUTLY BELIEVED THAT "MORE THINGS ARE
WROUGHT BY PRAYER THAN THIS WORLD DREAMS OF."  IT WAS DOUBTLESS LARGELY
DUE TO MEN WHO BELIEVED THIS THAT THERE GREW UP A SENTIMENT THAT CAUSED
MEN TO LEAVE THE CROSS-CURRENTS OF OFFICIALLY ESTABLISHED STATE
RELIGIONS AND RELIGIOUS PERSECUTION IN EUROPE AND COME TO THIS COUNTRY
FILLED WITH THE HOPE THAT THEY COULD FIND A PLACE IN WHICH THEY COULD
PRAY WHEN THEY PLEASED TO THE GOD OF THEIR FAITH IN THE LANGUAGE THEY
CHOSE.  (FN20)  AND THERE WERE MEN OF THIS SAME FAITH IN THE POWER OF
PRAYER WHO LED THE FIGHT FOR ADOPTION OF OUR CONSTITUTION AND ALSO FOR
OUR BILL OF RIGHTS WITH THE VERY GUARANTEES OF RELIGIOUS FREEDOM THAT
FORBID THE SORT OF GOVERNMENTAL ACTIVITY WHICH NEW YORK HAS ATTEMPTED
HERE.  THESE MEN KNEW THAT THE FIRST AMENDMENT, WHICH TRIED TO PUT AN
END TO GOVERNMENTAL CONTROL OF RELIGION AND OF PRAYER, WAS NOT WRITTEN
TO DESTROY EITHER.  THEY KNEW RATHER THAT IT WAS WRITTEN TO QUIET WELL
JUSTIFIED FEARS WHICH NEARLY ALL OF THEM FELT ARISING OUT OF AN
AWARENESS THAT GOVERNMENTS OF THE PAST HAD SHACKLED MEN'S TONGUES TO
MAKE THEM SPEAK ONLY THE RELIGIOUS THOUGHTS THAT GOVERNMENT WANTED THEM
TO SPEAK AND TO PRAY ONLY TO THE GOD THAT GOVERNMENT WANTED THEM TO
PRAY TO.  IT IS NEITHER SACRILEGIOUS NOR ANTIRELIGIOUS TO SAY THAT EACH
SEPARATE GOVERNMENT IN THIS COUNTRY SHOULD STAY OUT OF THE BUSINESS OF
WRITING OR SANCTIONING OFFICIAL PRAYERS AND LEAVE THAT PURELY RELIGIOUS
FUNCTION TO THE PEOPLE THEMSELVES AND TO THOSE THE PEOPLE CHOOSE TO
LOOK TO FOR RELIGIOUS GUIDANCE.  (FN21) 

IT IS TRUE THAT NEW YORK'S ESTABLISHMENT OF ITS REGENTS' PRAYER AS AN
OFFICIALLY APPROVED RELIGIOUS DOCTRINE OF THAT STATE DOES NOT AMOUNT TO
A TOTAL ESTABLISHMENT OF ONE PARTICULAR RELIGIOUS SECT TO THE EXCLUSION
OF ALL OTHERS - THAT, INDEED, THE GOVERNMENTAL ENDORSEMENT OF THAT
PRAYER SEEMS RELATIVELY INSIGNIFICANT WHEN COMPARED TO THE GOVERNMENTAL
ENCROACHMENTS UPON RELIGION WHICH WERE COMMONPLACE 200 YEARS AGO.  TO
THOSE WHO MAY SUBSCRIBE TO THE VIEW THAT BECAUSE THE REGENTS' OFFICIAL
PRAYER IS SO BRIEF AND GENERAL THERE CAN BE NO DANGER TO RELIGIOUS
FREEDOM IN ITS GOVERNMENTAL ESTABLISHMENT, HOWEVER, IT MAY BE
APPROPRIATE TO SAY IN THE WORDS OF JAMES MADISON, THE AUTHOR OF THE
FIRST AMENDMENT: 

"IT IS PROPER TO TAKE ALARM AT THE FIRST EXPERIMENT ON OUR LIBERTIES
...  .  WHO DOES NOT SEE THAT THE SAME AUTHORITY WHICH CAN ESTABLISH
CHRISTIANITY, IN EXCLUSION OF ALL OTHER RELIGIONS, MAY ESTABLISH WITH
THE SAME EASE ANY PARTICULAR SECT OF CHRISTIANS, IN EXCLUSION OF ALL
OTHER SECTS?  THAT THE SAME AUTHORITY WHICH CAN FORCE A CITIZEN TO
CONTRIBUTE THREE PENCE ONLY OF HIS PROPERTY FOR THE SUPPORT OF ANY ONE
ESTABLISHMENT, MAY FORCE HIM TO CONFORM TO ANY OTHER ESTABLISHMENT IN
ALL CASES WHATSOEVER?"  (FN22) 

THE JUDGMENT OF THE COURT OF APPEALS OF NEW YORK IS REVERSED AND THE
CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  SEE NEW YORK CONSTITUTION, ART. V, SEC. 4; NEW YORK EDUCATION
LAW, SECS. 101, 120 ET SEQ., 202, 214-219, 224, 245 ET SEQ., 704, AND
801 ET SEQ. 

FN2  10 N.Y.2D 174, 176 N.E.2D 579.  THE TRIAL COURT'S OPINION, WHICH
IS REPORTED AT 18 MISC.  2D 659, 191 N.Y.S.2D 453, HAD MADE IT CLEAR
THAT THE BOARD OF EDUCATION MUST SET UP SOME SORT OF PROCEDURES TO
PROTECT THOSE WHO OBJECTED TO RECITING THE PRAYER:  "THIS IS NOT TO SAY
THAT THE RIGHTS ACCORDED PETITIONERS AND THEIR CHILDREN UNDER THE 'FREE
EXERCISE' CLAUSE DO NOT MANDATE SAFEGUARDS AGAINST SUCH EMBARRASMENTS
AND PRESSURES.  IT IS ENOUGH ON THIS SCORE, HOWEVER, THAT REGULATIONS,
SUCH AS WERE ADOPTED BY NEW YORK CITY'S BOARD OF EDUCATION IN
CONNECTION WITH ITS RELEASED TIME PROGRAM, BE ADOPTED, MAKING CLEAR
THAT NEITHER TEACHERS NOR ANY OTHER SCHOOL AUTHORITY MAY COMMENT ON
PARTICIPATION OR NONPARTICIPATION IN THE EXERCISE NOR SUGGEST OR
REQUIRE THAT ANY POSTURE OR LANGUAGE BE USED OR DRESS BE WORN OR BE NOT
USED OR NOT WORN.  NON-PARTICIPATION MAY TAKE THE FORM EITHER OF
REMAINING SILENT DURING THE EXERCISE, OR IF THE PARENT OR CHILD SO
DESIRES, OF BEING EXCUSED ENTIRELY FROM THE EXERCISE.  SUCH REGULATIONS
MUST ALSO MAKE PROVISION FOR THOSE NONPARTICIPANTS WHO ARE TO BE
EXCUSED FROM THE PRAYER EXERCISE.  THE EXACT PROVISION TO BE MADE IS A
MATTER FOR DECISION BY THE BOARD, RATHER THAN THE COURT, WITHIN THE
FRAMEWORK OF CONSTITUTIONAL REQUIREMENTS.  WITHIN THAT FRAMEWORK WOULD
FALL A PROVISION THAT PRAYER PARTICIPANTS PROCEED TO A COMMON ASSEMBLY
WHILE NONPARTICIPANTS ATTEND OTHER ROOMS, OR THAT NONPARTICIPANTS BE
PERMITTED TO ARRIVE AT SCHOOL A FEW MINUTES LATE OR TO ATTEND SEPARATE
OPENING EXERCISES, OR ANY OTHER METHOD WHICH TREATS WITH EQUALITY BOTH
PARTICIPANTS AND NONPARTICIPANTS."  18 MISC. 2D, AT 696, 191 N.Y.S.2D,
AT 492-493.  SEE ALSO THE OPINION OF THE APPELLATE DIVISION AFFIRMING
THAT OF THE TRIAL COURT, REPORTED AT 11 APP. DIV. 2D 340, 206 N.Y.S. 2D
183. 

FN3  368 U.S. 924. 

FN4  18 MISC. 2D, AT 671-672, 191 N.Y.S.2D, AT 468-469. 

FN5  2 & 3 EDWARD VI, C. 1, ENTITLED "AN ACT FOR UNIFORMITY OF
SERVICE AND ADMINISTRATION OF THE SACRAMENTS THROUGHOUT THE REALM"; 3 &
4 EDWARD VI, C. 10, ENTITLED "AN ACT FOR THE ABOLISHING AND PUTTING
AWAY OF DIVERS BOOKS AND IMAGES." 

FN6  THE PROVISIONS OF THE VARIOUS VERSIONS OF THE BOOK OF COMMON
PRAYER ARE SET OUT IN BROAD OUTLNE IN THE ENCYCLOPAEDIA BRITANNICA,
VOL. 18 (1957 ED.), PP. 420-423.  FOR A MORE COMPLETE DESCRIPTION, SEE
PULLAN, THE HISTORY OF THE BOOK OF COMMON PRAYER (1900). 

FN7  THE FIRST MAJOR REVISION OF THE BOOK OF COMMON PRAYER WAS MADE
IN 1552 DURING THE REIGN OF EDWARD VI.  5 & 6 EDWARD VI, C. 1.  IN
1553, EDWARD VI DIED AND WAS SUCCEEDED BY MARY WHO ABOLISHED THE BOOK
OF COMMON PRAYER ENTIRELY.  1 MARY, C. 2.  BUT UPON THE ACCESSION OF
ELIZABETH IN 1558, THE BOOK WAS RESTORED WITH IMPORTANT ALTERATIONS
FROM THE FORM IT HAD BEEN GIVEN BY EDWARD VI.  1 ELIZABETH, C. 2.  THE
RESENTMENT TO THIS AMENDED FORM OF THE BOOK WAS KEPT FIRMLY UNDER
CONTROL DURING THE REIGN OF ELIZABETH BUT, UPON HER DEATH IN 1603, A
PETITION SIGNED BY MORE THAN 1,000 PURITAN MINISTERS WAS PRESENTED TO
KING JAMES I ASKING FOR FURTHER ALTERATIONS IN THE BOOK.  SOME
ALTERATIONS WERE MADE AND THE BOOK RETAINED SUBSTANTIALLY THIS FORM
UNTIL IT WAS COMPLETELY SUPPRESSED AGAIN IN 1645 AS A RESULT OF THE
SUCCESSFUL PURITAN REVOLUTION.  SHORTLY AFTER THE RESTORATION IN 1660
OF CHARLES II, THE BOOK WAS AGAIN REINTRODUCED, 13 & 14 CHARLES II, C.
4, AND AGAIN WITH ALTERATIONS.  RATHER THAN ACCEPT THIS FORM OF THE
BOOK SOME 2,000 PURITAN MINISTERS VACATED THEIR BENEFICES.  SEE
GENERALLY PULLAN, THE HISTORY OF THE BOOK OF COMMON PRAYER (1900), PP.
VII-XVI; ENCYCLOPAEDIA BRITANNICA (1957 ED.), VOL. 18, PP. 421-422. 

FN8  FOR EXAMPLE, THE PURITANS TWICE ATTEMPTED TO MODIFY THE BOOK OF
COMMON PRAYER AND ONCE ATTEMPTED TO DESTROY IT.  THE STORY OF THEIR
STRUGGLE TO MODIFY THE BOOK IN THE REIGN OF CHARLES I IS VIVIDLY
SUMMARIZED IN PULLAN, HISTORY OF THE BOOK OF COMMON PRAYER, AT P. XIII:
"THE KING ACTIVELY SUPPORTED THOSE MEMBERS OF THE CHURCH OF ENGLAND
WHO WERE ANXIOUS TO VINDICATE ITS CATHOLIC CHARACTER AND MAINTAIN THE
CEREMONIAL WHICH ELIZABETH HAD APPROVED.  LAUD, ARCHBISHOP OF
CANTERBURY, WAS THE LEADER OF THIS SCHOOL.  EQUALLY RESOLUTE IN HIS
OPPOSITION TO THE DISTINCTIVE TENETS OF ROME AND OF GENEVA, HE ENJOYED
THE HATRED OF BOTH JESUIT AND CALVINIST.  HE HELPED THE SCOTTISH
BISHOPS, WHO HAD MADE LARGE CONCESSIONS TO THE UNCOUTH HABITS OF
PRESBYTERIAN WORSHIP, TO DRAW UP A BOOK OF COMMON PRAYER FOR SCOTLAND. 
IT CONTAINED A COMMUNION OFFICE RESEMBLING THAT OF THE BOOK OF 1549. 
IT CAME INTO USE IN 1637, AND MET WITH A BITTER AND BARBAROUS
OPPOSITION.  THE VIGOUR OF THE SCOTTISH PROTESTANTS STRENGTHENED THE
HANDS OF THEIR ENGLISH SYMPATHISERS.  LAUD AND CHARLES WERE EXECUTED,
EPISCOPACY WAS ABOLISHED, THE USE OF THE BOOK OF COMMON PRAYER WAS
PROHIBITED." 

FN9  FOR A DESCRIPTION OF SOME OF THE LAWS ENACTED BY EARLY
THEOCRATIC GOVERNMENTS IN NEW ENGLAND, SEE PARRINGTON, MAIN CURRENTS IN
AMERICAN THOUGHT (1930), VOL. 1, PP. 5-50; WHIPPLE, OUR ANCIENT
LIBERTIES (1927), PP. 63-78; WERTENBAKER, THE PURITAN OLIGARCHY
(1947). 

FN10  THE CHURCH OF ENGLAND WAS THE ESTABLISHED CHURCH OF AT LEAST
FIVE COLONIES:  MARYLAND, VIRGINIA, NORTH CAROLINA, SOUTH CAROLINA AND
GEORGIA.  THERE SEEMS TO BE SOME CONTROVERSY AS TO WHETHER THAT CHURCH
WAS OFFICIALLY ESTABLISHED IN NEW YORK AND NEW JERSEY BUT THERE IS NO
DOUBT THAT IT RECEIVED SUBSTANTIAL SUPPORT FROM THOSE STATES.  SEE
COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA (1902), PP. 338, 408. 
IN MASSACHUSETTS, NEW HAMPSHIRE AND CONNECTICUT, THE CONGREGATIONALIST
CHURCH WAS OFFICIALLY ESTABLISHED.  IN PENNSYLVANIA AND DELAWARE, ALL
CHRISTIAN SECTS WERE TREATED EQUALLY IN MOST SITUATIONS BUT CATHOLICS
WERE DISCRIMINATED AGAINST IN SOME RESPECTS.  SEE GENERALLY COBB, THE
RISE OF RELIGIOUS LIBERTY IN AMERICA (1902).  IN RHODE ISLAND ALL
PROTESTANTS ENJOYED EQUAL PRIVILEGES BUT IT IS NOT CLEAR WHETHER
CATHOLICS WERE ALLOWED TO VOTE.  COMPARE FISKE, THE CRITICAL PERIOD IN
AMERICAN HISTORY (1899), P. 76 WITH COBB, THE RISE OF RELIGIOUS LIBERTY
IN AMERICA (1902), PP. 437-438. 

FN11  HENING, STATUTES OF VIRGINIA (1823), 84, ENTITLED "AN ACT FOR
ESTABLISHING RELIGIOUS FREEDOM."  THE STORY OF THE EVENTS SURROUNDING
THE ENACTMENT OF THIS LAW WAS REVIEWED IN EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1, BOTH BY THE COURT, AT PP. 11-13, AND IN THE
DISSENTING OPINION OF MR. JUSTICE RUTLEDGE, AT PP. 33-42.  SEE ALSO
FISKE, THE CRITICAL PERIOD IN AMERICAN HISTORY (1899), PP. 78-82;
JAMES, THE STRUGGLE FOR RELIGIOUS LIBERTY IN VIRGINIA (1900); THOM, THE
STRUGGLE FOR RELIGIOUS FREEDOM IN VIRGINIA:  THE BAPTISTS (1900); COBB,
THE RISE OF RELIGIOUS LIBERTY IN AMERICA (1902), PP. 74-115, 482-499. 

FN12  SEE COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA (1902), PP.
482-509. 

FN13  "ATTEMPTS TO ENFORCE BY LEGAL SANCTIONS, ACTS OBNOXIOUS TO SO
GREAT A PROPORTION OF CITIZENS, TEND TO ENERVATE THE LAWS IN GENERAL,
AND TO SLACKEN THE BANDS OF SOCIETY.  IF IT BE DIFFICULT TO EXECUTE ANY
LAW WHICH IS NOT GENERALLY DEEMED NECESSARY OR SALUTARY, WHAT MUST BE
THE CASE WHERE IT IS DEEMED INVALID AND DANGEROUS?  AND WHAT MAY BE THE
EFFECT OF SO STRIKING AN EXAMPLE OF IMPOTENCY IN THE GOVERNMENT, ON ITS
GENERAL AUTHORITY."  MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS
ASSESSMENTS, II WRITINGS OF MADISON 183, 190. 

FN14  "IT IS MOREOVER TO WEAKEN IN THOSE WHO PROFESS THIS RELIGION A
PIOUS CONFIDENCE IN ITS INNATE EXCELLENCE, AND THE PATRONAGE OF ITS
AUTHOR; AND TO FOSTER IN THOSE WHO STILL REJECT IT, A SUSPICION THAT
ITS FRIENDS ARE TOO CONSCIOUS OF ITS FALLACIES, TO TRUST IT TO ITS OWN
MERITS  ...  .  EXPERIENCE WITNESSETH THAT ECCLESIASTICAL
ESTABLISHMENTS, INSTEAD OF MAINTAINING THE PURITY AND EFFICACY OF
RELIGION, HAVE HAD A CONTRARY OPERATION.  DURING ALMOST FIFTEEN
CENTURIES, HAS THE LEGAL ESTABLISHMENT OF CHRISTIANITY BEEN ON TRIAL. 
WHAT HAVE BEEN ITS FRUITS?  MORE OR LESS IN ALL PLACES, PRIDE AND
INDOLENCE IN THE CLERGY; IGNORANCE AND SERVILITY IN THE LAITY; IN BOTH,
SUPERSTITION, BIGOTRY AND PERSECUTION.  ENQUIRE OF THE TEACHERS OF
CHRISTIANITY FOR THE AGES IN WHICH IT APPEARED IN ITS GREATEST LUSTRE;
THOSE OF EVERY SECT, POINT TO THE AGES PRIOR TO ITS INCORPORATION WITH
CIVIL POLICY."  ID., AT 187. 

FN15  MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS, II
WRITINGS OF MADISON, AT 187. 

FN16  "THE PROPOSED ESTABLISHMENT IS A DEPARTURE FROM THAT GENEROUS
POLICY, WHICH, OFFERING AN ASYLUM TO THE PERSECUTED AND OPPRESSED OF
EVERY NATION AND RELIGION, PROMISED A LUSTRE TO OUR COUNTRY, AND AN
ACCESSION TO THE NUMBER OF ITS CITIZENS.  WHAT A MELANCHOLY MARK IS THE
BILL OF SUDDEN DEGENERACY?  INSTEAD OF HOLDING FORTH AN ASYLUM TO THE
PERSECUTED, IT IS ITSELF A SIGNAL OF PERSECUTION  ...  .  DISTANT AS IT
MAY BE, IN ITS PRESENT FORM, FROM THE INQUISITION IT DIFFERS FROM IT
ONLY IN DEGREE.  THE ONE IS THE FIRST STEP, THE OTHER THE LAST IN THE
CAREER OF INTOLERANCE.  THE MAGNANIMOUS SUFFERER UNDER THIS CRUEL
SCOURGE IN FOREIGN REGIONS, MUST VIEW THE BILL AS A BEACON ON OUR
COAST, WARNING HIM TO SEEK SOME OTHER HAVEN, WHERE LIBERTY AND
PHILANTHROPY IN THEIR DUE EXTENT MAY OFFER A MORE CERTAIN REPOSE FROM
HIS TROUBLES."  ID., AT 188. 

FN17  5 & 6 EDWARD VI, C. 1, ENTITLED "AN ACT FOR THE UNIFORMITY OF
SERVICE AND ADMINISTRATION OF SACRAMENTS THROUGHOUT THE REALM."  THIS
ACT WAS REPEALED DURING THE REIGN OF MARY BUT REVIVED UPON THE
ACCESSION OF ELIZABETH.  SEE NOTE 7, SUPRA.  THE REASONS WHICH LED TO
THE ENACTMENT OF THIS STATUTE WERE SET OUT IN ITS PREAMBLE:  "WHERE
THERE HATH BEEN A VERY GODLY ORDER SET FORTH BY THE AUTHORITY OF
PARLIAMENT, FOR COMMON PRAYER AND ADMINISTRATION OF THE SACRAMENTS TO
BE USED IN THE MOTHER TONGUE WITHIN THE CHURCH OF ENGLAND, AGREEABLE TO
THE WORD OF GOD AND THE PRIMITIVE CHURCH, VERY COMFORTABLE TO ALL GOOD
PEOPLE DESIRING TO LIVE IN CHRISTIAN CONVERSATION, AND MOST PROFITABLE
TO THE ESTATE OF THIS REALM, UPON THE WHICH THE MERCY, FAVOUR AND
BLESSING OF ALMIGHTY GOD IS IN NO WISE SO READILY AND PLENTEOUSLY
POURED AS BY COMMON PRAYERS, DUE USING OF THE SACRAMENTS, AND OFTEN
PREACHING OF THE GOSPEL, WITH THE DEVOTION OF THE HEARERS:  (1) AND YET
THIS NOTWITHSTANDING, A GREAT NUMBER OF PEOPLE IN DIVERS PARTS OF THIS
REALM, FOLLOWING THEIR OWN SENSUALITY, AND LIVING EITHER WITHOUT
KNOWLEDGE OR DUE FEAR OF GOD, DO WILFULLY AND DAMNABLY BEFORE ALMIGHTY
GOD ABSTAIN AND REFUSE TO COME TO THEIR PARISH CHURCHES AND OTHER
PLACES WHERE COMMON PRAYER, ADMINISTRATION OF THE SACRAMENTS, AND
PREACHING OF THE WORD OF GOD, IS USED UPON SUNDAYS AND OTHER DAYS
ORDAINED TO BE HOLYDAYS." 

FN18  BUNYAN'S OWN ACCOUNT OF HIS TRIAL IS SET FORTH IN A RELATION OF
THE IMPRISONMENT OF MR. JOHN BUNYAN, REPRINTED IN GRACE ABOUNDING AND
THE PILGRIM'S PROGRESS (BROWN ED. 1907), AT 103-132. 

FN19  FOR A VIVID ACCOUNT OF SOME OF THESE PERSECUTIONS, SEE
WERTENBAKER, THE PURITAN OLIGARCHY (1947). 

FN20  PERHAPS THE BEST EXAMPLE OF THE SORT OF MEN WHO CAME TO THIS
COUNTRY FOR PRECISELY THAT REASON IS ROGER WILLIAMS, THE FOUNDER OF
RHODE ISLAND, WHO HAS BEEN DESCRIBED AS "THE TRUEST CHRISTIAN AMONGST
MANY WHO SINCERELY DESIRED TO BE CHRISTIAN."  PARRINGTON, MAIN CURRENTS
IN AMERICAN THOUGHT (1930), VOL. 1, AT P. 74.  WILLIAMS, WHO WAS ONE OF
THE EARLIEST EXPONENTS OF THE DOCTRINE OF SEPARATION OF CHURCH AND
STATE, BELIEVED THAT SEPARATION WAS NECESSARY IN ORDER TO PROTECT THE
CHURCH FROM THE DANGER OF DESTRUCTION WHICH HE THOUGHT INEVITABLY
FLOWED FROM CONTROL BY EVEN THE BEST-INTENTIONED CIVIL AUTHORITIES:
"THE UNKNOWING ZEALE OF CONSTANTINE AND OTHER EMPEROURS, DID MORE HURT
TO CHRIST JESUS HIS CROWNE AND KINGDOME, THEN THE RAGING FURY OF THE
MOST BLOODY NEROES.  IN THE PERSECUTIONS OF THE LATER, CHRISTIANS WERE
SWEET AND FRAGRANT, LIKE SPICE POUNDED AND BEATEN IN MORTERS:  BUT
THOSE GOOD EMPEROURS, PERSECUTING SOME ERRONEOUS PERSONS, ARRIUS, &C.
AND ADVANCING THE PROFESSOURS OF SOME TRUTHS OF CHRIST (FOR THERE WAS
NO SMALL NUMBER OF TRUTHS LOST IN THOSE TIMES) AND MAINTAINING THEIR
RELIGION BY THE MATERIALL SWORD, I SAY BY THIS MEANES CHRISTIANITY WAS
ECCLIPSED, AND THE PROFESSORS OF IT FELL ASLEEP  ...  ."  WILLIAMS, THE
BLOUDY TENENT, OF PERSECUTION, FOR CAUSE OF CONSCIENCE, DISCUSSED IN A
CONFERENCE BETWEEN TRUTH AND PEACE (LONDON, 1644), REPRINTED IN
NARRAGANSETT CLUB PUBLICATIONS, VOL. III, P. 184.  TO WILLIAMS, IT WAS
NO PART OF THE BUSINESS OR COMPETENCE OF A CIVIL MAGISTRATE TO
INTERFERE IN RELIGIOUS MATTERS:  "WHAT IMPRUDENCE AND INDISCRETION IS
IT IN THE MOST COMMON AFFAIRES OF LIFE, TO CONCEIVE THAT EMPEROURS,
KINGS AND RULERS OF THE EARTH MUST NOT ONLY BE QUALIFIED WITH
POLITICALL AND STATE ABILITIES TO MAKE AND EXECUTE SUCH CIVILL LAWES
WHICH MAY CONCERNE THE COMMON RIGHTS, PEACE AND SAFETY (WHICH IS WORKE
AND BUSINESSE, LOAD AND BURTHEN ENOUGH FOR THE ABLEST SHOULDERS IN THE
COMMONWEAL) BUT ALSO FURNISHED WITH SUCH SPIRITUALL AND HEAVENLY
ABILITIES TO GOVERNE THE SPIRITUALL AND CHRISTIAN COMMONWEALE  ...  ." 
ID., AT 366.  SEE ALSO ID., AT 136-137. 

FN21  THERE IS OF COURSE NOTHING IN THE DECISION REACHED HERE THAT IS
INCONSISTENT WITH THE FACT THAT SCHOOL CHILDREN AND OTHERS ARE
OFFICIALLY ENCOURAGED TO EXPRESS LOVE FOR OUR COUNTRY BY RECITING
HISTORICAL DOCUMENTS SUCH AS THE DECLARATION OF INDEPENDENCE WHICH
CONTAIN REFERENCES TO THE DEITY OR BY SINGING OFFICIALLY ESPOUSED
ANTHEMS WHICH INCLUDE THE COMPOSER'S PROFESSIONS OF FAITH IN A SUPREME
BEING, OR WITH THE FACT THAT THERE ARE MANY MANIFESTATIONS IN OUR
PUBLIC LIFE OF BELIEF IN GOD.  SUCH PATRIOTIC OR CEREMONIAL OCCASIONS
BEAR NO TRUE RESEMBLANCE TO THE UNQUESTIONED RELIGIOUS EXERCISE THAT
THE STATE OF NEW YORK HAS SPONSORED IN THIS INSTANCE. 

FN22  MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS, II
WRITINGS OF MADISON 183, AT 185-186. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IT IS CUSTOMARY IN DECIDING A CONSTITUTIONAL QUESTION TO TREAT IT IN
ITS NARROWEST FORM.  YET AT TIMES THE SETTING OF THE QUESTION GIVES IT
A FORM AND CONTENT WHICH NO ABSTRACT TREATMENT COULD GIVE.  THE POINT
FOR DECISION IS WHETHER THE GOVERNMENT CAN CONSTITUTIONALLY FINANCE A
RELIGIOUS EXERCISE.  OUR SYSTEM AT THE FEDERAL AND STATE LEVELS IS
PRESENTLY HONEYCOMBED WITH SUCH FINANCING.  (FN1)  NEVERTHELESS, I
THINK IT IS AN UNCONSTITUTIONAL UNDERTAKING WHATEVER FORM IT TAKES. 

FIRST, A WORD AS TO WHAT THIS CASE DOES NOT INVOLVE. 

PLAINLY, OUR BILL OF RIGHTS WOULD NOT PERMIT A STATE OR THE FEDERAL
GOVERNMENT TO ADOPT AN OFFICIAL PRAYER AND PENALIZE ANYONE WHO WOULD
NOT UTTER IT.  THIS, HOWEVER, IS NOT THAT CASE, FOR THERE IS NO ELEMENT
OF COMPULSION OR COERCION IN NEW YORK'S REGULATION REQUIRING THAT
PUBLIC SCHOOLS BE OPENED EACH DAY WITH THE FOLLOWING PRAYER: 

"ALMIGHTY GOD, WE ACKNOWLEDGE OUR DEPENDENCE UPON THEE, AND WE BEG
THY BLESSINGS UPON US, OUR PARENTS, OUR TEACHERS AND OUR COUNTRY." 

THE PRAYER IS SAID UPON THE COMMENCEMENT OF THE SCHOOL DAY,
IMMEDIATELY FOLLOWING THE PLEDGE OF ALLEGIANCE TO THE FLAG.  THE PRAYER
IS SAID ALOUD IN THE PRESENCE OF A TEACHER, WHO EITHER LEADS THE
RECITATION OR SELECTS A STUDENT TO DO SO.  NO STUDENT, HOWEVER, IS
COMPELLED TO TAKE PART.  THE RESPONDENTS HAVE ADOPTED A REGULATION
WHICH PROVIDES THAT "NEITHER TEACHERS NOR ANY SCHOOL AUTHORITY SHALL
COMMENT ON PARTICIPATION OR NON-PARTICIPATION  ...  NOR SUGGEST OR
REQUEST THAT ANY POSTURE OR LANGUAGE BE USED OR DRESS BE WORN OR BE NOT
USED OR NOT WORN."  PROVISION IS ALSO MADE FOR EXCUSING CHILDREN, UPON
WRITTEN REQUEST OF A PARENT OR GUARDIAN, FROM THE SAYING OF THE PRAYER
OR FROM THE ROOM IN WHICH THE PRAYER IS SAID.  A LETTER IMPLEMENTING
AND EXPLAINING THIS REGULATION HAS BEEN SENT TO EACH TAXPAYER AND
PARENT IN THE SCHOOL DISTRICT.  AS I READ THIS REGULATION, A CHILD IS
FREE TO STAND OR NOT STAND, TO RECITE OR NOT RECITE, WITHOUT FEAR OF
REPRISAL OR EVEN COMMENT BY THE TEACHER OR ANY OTHER SCHOOL OFFICIAL. 

IN SHORT, THE ONLY ONE WHO NEED UTTER THE PRAYER IS THE TEACHER; AND
NO TEACHER IS COMPLAINING OF IT.  STUDENTS CAN STAND MUTE OR EVEN LEAVE
THE CLASSROOM, IF THEY DESIRE.  (FN2) 

MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, DOES NOT DECIDE THIS
CASE.  IT INVOLVED THE USE OF PUBLIC SCHOOL FACILITIES FOR RELIGIOUS
EDUCATION OF STUDENTS.  STUDENTS EITHER HAD TO ATTEND RELIGIOUS
INSTRUCTION OR "GO TO SOME OTHER PLACE IN THE SCHOOL BUILDING FOR
PURSUIT OF THEIR SECULAR STUDIES  ...  .  REPORTS OF THEIR PRESENCE OR
ABSENCE WERE TO BE MADE TO THEIR SECULAR TEACHERS."  ID., AT 209.  THE
INFLUENCE OF THE TEACHING STAFF WAS THEREFORE BROUGHT TO BEAR ON THE
STUDENT BODY, TO SUPPORT THE INSTILLING OF RELIGIOUS PRINCIPLES.  IN
THE PRESENT CASE, SCHOOL FACILITIES ARE USED TO SAY THE PRAYER AND THE
TEACHING STAFF IS EMPLOYED TO LEAD THE PUPILS IN IT.  THERE IS,
HOWEVER, NO EFFORT AT INDOCTRINATION AND NO ATTEMPT AT EXPOSITION. 
PRAYERS OF COURSE MAY BE SO LONG AND OF SUCH CHARACTER AS TO AMOUNT TO
AN ATTEMPT AT THE RELIGIOUS INSTRUCTION THAT WAS DENIED THE PUBLIC
SCHOOLS BY THE MCCOLLUM CASE.  BUT NEW YORK'S PRAYER IS OF A CHARACTER
THAT DOES NOT INVOLVE ANY ELEMENT OF PROSELYTIZING AS IN THE MCCOLLUM
CASE. 

THE QUESTION PRESENTED BY THIS CASE IS THEREFORE AN EXTREMELY NARROW
ONE.  IT IS WHETHER NEW YORK OVERSTEPS THE BOUNDS WHEN IT FINANCES A
RELIGIOUS EXERCISE. 

WHAT NEW YORK DOES ON THE OPENING OF ITS PUBLIC SCHOOLS IS WHAT WE DO
WHEN WE OPEN COURT.  OUR CRIER HAS FROM THE BEGINNING ANNOUNCED THE
CONVENING OF THE COURT AND THEN ADDED "GOD SAVE THE UNITED STATES AND
THIS HONORABLE COURT."  THAT UTTERANCE IS A SUPPLICATION, A PRAYER IN
WHICH WE, THE JUDGES, ARE FREE TO JOIN, BUT WHICH WE NEED NOT RECITE
ANY MORE THAN THE STUDENTS NEED RECITE THE NEW YORK PRAYER. 

WHAT NEW YORK DOES ON THE OPENING OF ITS PUBLIC SCHOOLS IS WHAT EACH
HOUSE OF CONGRESS (FN3) DOES AT THE OPENING OF EACH DAY'S BUSINESS. 
(FN4)  REVEREND FREDERICK B. HARRIS IS CHAPLAIN OF THE SENATE; REVEREND
BERNARD BRASKAMP IS CHAPLAIN OF THE HOUSE.  GUEST CHAPLAINS OF VARIOUS
DENOMINATIONS ALSO OFFICIATE.  (FN5) 

IN NEW YORK THE TEACHER WHO LEADS IN PRAYER IS ON THE PUBLIC PAYROLL;
AND THE TIME SHE TAKES SEEMS MINUSCULE AS COMPARED WITH THE SALARIES
APPROPRIATED BY STATE LEGISLATURES AND CONGRESS FOR CHAPLAINS TO
CONDUCT PRAYERS IN THE LEGISLATIVE HALLS.  ONLY A BARE FRACTION OF THE
TEACHER'S TIME IS GIVEN TO RECITING THIS SHORT 22-WORD PRAYER, ABOUT
THE SAME AMOUNT OF TIME THAT OUR CRIER SPENDS ANNOUNCING THE OPENING OF
OUR SESSIONS AND OFFERING A PRAYER FOR THIS COURT.  YET FOR ME THE
PRINCIPLE IS THE SAME, NO MATTER HOW BRIEFLY THE PRAYER IS SAID, FOR IN
EACH OF THE INSTANCES GIVEN THE PERSON PRAYING IS A PUBLIC OFFICIAL ON
THE PUBLIC PAYROLL, PERFORMING A RELIGIOUS EXERCISE IN A GOVERNMENTAL
INSTITUTION.  (FN6)  IT IS SAID THAT THE ELEMENT OF COERCION IS
INHERENT IN THE GIVING OF THIS PRAYER.  IF THAT IS TRUE HERE, IT IS
ALSO TRUE OF THE PRAYER WITH WHICH THIS COURT IS CONVENED, AND OF THOSE
THAT OPEN THE CONGRESS.  FEW ADULTS, LET ALONE CHILDREN, WOULD LEAVE
OUR COURTROOM OR THE SENATE OR THE HOUSE WHILE THOSE PRAYERS ARE BEING
GIVEN.  EVERY SUCH AUDIENCE IS IN A SENSE A "CAPTIVE" AUDIENCE. 

AT THE SAME TIME I CANNOT SAY THAT TO AUTHORIZE THIS PRAYER IS TO
ESTABLISH A RELIGION IN THE STRICTLY HISTORIC MEANING OF THOSE WORDS. 
(FN7)  A RELIGION IS NOT ESTABLISHED IN THE USUAL SENSE MERELY BY
LETTING THOSE WHO CHOOSE TO DO SO SAY THE PRAYER THAT THE PUBLIC SCHOOL
TEACHER LEADS.  YET ONCE GOVERNMENT FINANCES A RELIGIOUS EXERCISE IT
INSERTS A DIVISIVE INFLUENCE INTO OUR COMMUNITIES.  (FN8)  THE NEW YORK
COURT SAID THAT THE PRAYER GIVEN DOES NOT CONFORM TO ALL OF THE TENETS
OF JEWISH, UNITARIAN, AND ETHICAL CULTURE GROUPS.  ONE OF THE
PETITIONERS IS AN AGNOSTIC. 

"WE ARE A RELIGIOUS PEOPLE WHOSE INSTITUTIONS PRESUPPOSE A SUPREME
BEING."  ZORACH V. CLAUSON, 343 U.S. 306, 313.  UNDER OUR BILL OF
RIGHTS FREE PLAY IS GIVEN FOR MAKING RELIGION AN ACTIVE FORCE IN OUR
LIVES.  (FN9)  BUT "IF A RELIGIOUS LEAVEN IS TO BE WORKED INTO THE
AFFAIRS OF OUR PEOPLE, IT IS TO BE DONE BY INDIVIDUALS AND GROUPS, NOT
BY THE GOVERNMENT."  MCGOWAN V. MARYLAND, 366 U.S. 420, 563 (DISSENTING
OPINION).  BY REASON OF THE FIRST AMENDMENT GOVERNMENT IS COMMANDED "TO
HAVE NO INTEREST IN THEOLOGY OR RITUAL" (ID., AT 564), FOR ON THOSE
MATTERS "GOVERNMENT MUST BE NEUTRAL."  IBID.  THE FIRST AMENDMENT
LEAVES THE GOVERNMENT IN A POSITION NOT OF HOSTILITY TO RELIGION BUT OF
NEUTRALITY.  THE PHILOSOPHY IS THAT THE ATHEIST OR AGNOSTIC - THE
NONBELIEVER - IS ENTITLED TO GO HIS OWN WAY.  THE PHILOSOPHY IS THAT IF
GOVERNMENT INTERFERES IN MATTERS SPIRITUAL, IT WILL BE A DIVISIVE
FORCE.  THE FIRST AMENDMENT TEACHES THAT A GOVERNMENT NEUTRAL IN THE
FIELD OF RELIGION BETTER SERVES ALL RELIGIOUS INTERESTS. 

MY PROBLEM TODAY WOULD BE UNCOMPLICATED BUT FOR EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1, 17, WHICH ALLOWED TAXPAYERS' MONEY TO BE USED TO
PAY "THE BUS FARES OF PAROCHIAL SCHOOL PUPILS AS A PART OF A GENERAL
PROGRAM UNDER WHICH" THE FARES OF PUPILS ATTENDING PUBLIC AND OTHER
SCHOOLS WERE ALSO PAID.  THE EVERSON CASE SEEMS IN RETROSPECT TO BE OUT
OF LINE WITH THE FIRST AMENDMENT.  ITS RESULT IS APPEALING, AS IT
ALLOWS AID TO BE GIVEN TO NEEDY CHILDREN.  YET BY THE SAME TOKEN,
PUBLIC FUNDS COULD BE USED TO SATISFY OTHER NEEDS OF CHILDREN IN
PAROCHIAL SCHOOLS - LUNCHES, BOOKS, AND TUITION BEING OBVIOUS
EXAMPLES.  MR. JUSTICE RUTLEDGE STATED IN DISSENT WHAT I THIK IS
DURABLE FIRST AMENDMENT PHILOSOPHY: 

"THE REASONS UNDERLYING THE AMENDMENT'S POLICY HAVE NOT VANISHED WITH
TIME OR DIMINISHED IN FORCE.   NOW AS WHEN IT WAS ADOPTED THE PRICE OF
RELIGIOUS FREEDOM IS DOUBLE.  IT IS THAT THE CHURCH AND RELIGION SHALL
LIVE BOTH WITHIN AND UPON THAT FREEDOM.  THERE CANNOT BE FREEDOM OF
RELIGION, SAFEGUARDED BY THE STATE, AND INTERVENTION BY THE CHURCH OR
ITS AGENCIES IN THE STATE'S DOMAIN OR DEPENDENCY ON ITS LARGESSE. 
MADISON'S REMONSTRANCE, PAR. 6, 8.  THE GREAT CONDITION OF RELIGIOUS
LIBERTY IS THAT IT BE MAINTAINED FREE FROM SUSTENANCE, AS ALSO FROM
OTHER INTERFERENCES, BY THE STATE.  FOR WHEN IT COMES TO REST UPON THAT
SECULAR FOUNDATION IT VANISHES WITH THE RESTING.  ID., PAR. 7, 8. 
PUBLIC MONEY DEVOTED TO PAYMENT OF RELIGIOUS COSTS, EDUCATIONAL OR
OTHER, BRINGS THE QUEST FOR MORE.  IT BRINGS TOO THE STRUGGLE OF SECT
AGAINST SECT FOR THE LARGER SHARE OR FOR ANY.  HERE ONE BY NUMBERS
ALONE WILL BENEFIT MOST, THERE ANOTHER.  THAT IS PRECISELY THE HISTORY
OF SOCIETIES WHICH HAVE HAD AN ESTABLISHED RELIGION AND DISSIDENT
GROUPS.  ID., PAR. 8, 11.  IT IS THE VERY THING JEFFERSON AND MADISON
EXPERIENCED AND SOUGHT TO GUARD AGAINST, WHETHER IN ITS BLUNT OR IN ITS
MORE SCREENED FORMS.  IBID.  THE END OF SUCH STRIFE CANNOT BE OTHER
THAN TO DESTROY THE CHERISHED LIBERTY.  THE DOMINATING GROUP WILL
ACHIEVE THE DOMINANT BENEFIT; OR ALL WILL EMBROIL THE STATE IN THEIR
DISSENSIONS.  ID., PAR. 11."  ID., PP.  53-54. 

WHAT NEW YORK DOES WITH THIS PRAYER IS A BREAK WITH THAT TRADITION. 
I THEREFORE JOIN THE COURT IN REVERSING THE JUDGMENT BELOW. 

FN1  "THERE ARE MANY 'AIDS' TO RELIGION IN THIS COUNTRY AT ALL LEVELS
OF GOVERNMENT.  TO MENTION BUT A FEW AT THE FEDERAL LEVEL, ONE MIGHT
BEGIN BY OBSERVING THAT THE VERY FIRST CONGRESS WHICH WROTE THE FIRST
AMENDMENT PROVIDED FOR CHAPLAINS IN BOTH HOUSES AND IN THE ARMED
SERVICES.  THERE IS COMPULSORY CHAPEL AT THE SERVICE ACADEMIES, AND
RELIGIOUS SERVICES ARE HELD IN FEDERAL HOSPITALS AND PRISONS.  THE
PRESIDENT ISSUES RELIGIOUS PROCLAMATIONS.  THE BIBLE IS USED FOR THE
ADMINISTRATION OF OATHS.  N.Y.A. AND W.P.A. FUNDS WERE AVAILABLE TO
PAROCHIAL SCHOOLS DURING THE DEPRESSION.  VETERANS RECEIVING MONEY
UNDER THE 'G.I.'  BILL OF 1944 COULD ATTEND DENOMINATIONAL SCHOOLS, TO
WHICH PAYMENTS WERE MADE DIRECTLY BY THE GOVERNMENT.  DURING WORLD WAR
II, FEDERAL MONEY WAS CONTRIBUTED TO DENOMINATIONAL SCHOOLS FOR THE
TRAINING OF NURSES.  THE BENEFITS OF THE NATIONAL SCHOOL LUNCH ACT ARE
AVAILABLE TO STUDENTS IN PRIVATE AS WELL AS PUBLIC SCHOOLS.  THE
HOSPITAL SURVEY AND CONSTRUCTION ACT OF 1946 SPECIFICALLY MADE MONEY
AVAILABLE TO NON-PUBLIC HOSPITALS.  THE SLOGAN 'IN GOD WE TRUST' IS
USED BY THE TREASURY DEPARTMENT, AND CONGRESS RECENTLY ADDED GOD TO THE
PLEDGE OF ALLEGIANCE.  THERE IS BIBLE-READING IN THE SCHOOLS OF THE
DISTRICT OF COLUMBIA, AND RELIGIOUS INSTRUCTION IS GIVEN IN THE
DISTRICT'S NATIONAL TRAINING SCHOOL FOR BOYS.  RELIGIOUS ORGANIZATIONS
ARE EXEMPT FROM THE FEDERAL INCOME TAX AND ARE GRANTED POSTAL
PRIVILEGES.  UP TO DEFINED LIMITS - 15 PER CENT OF THE ADJUSTED GROSS
INCOME OF INDIVIDUALS AND 5 PER CENT OF THE NET INCOME OF CORPORATIONS
CONTRIBUTIONS TO RELIGIOUS ORGANIZATIONS ARE DEDUCTIBLE FOR FEDERAL
INCOME TAX PURPOSES.  THERE ARE NO LIMITS TO THE DEDUCTIBILITY OF GIFTS
AND BEQUESTS TO RELIGIOUS INSTITUTIONS MADE UNDER THE FEDERAL GIFT AND
ESTATE TAX LAWS.  THIS LIST OF FEDERAL 'AIDS' COULD EASILY BE EXPANDED,
AND OF COURSE THERE IS A LONG LIST IN EACH STATE."  FELLMAN, THE LIMITS
OF FREEDOM (1959), PP. 40-41. 

FN2  WEST POINT CADETS ARE REQUIRED TO ATTEND CHAPEL EACH SUNDAY. 
REG., C. 21, SEC. 2101.  THE SAME REQUIREMENT OBTAINS AT THE NAVAL
ACADEMY (REG., C. 9, SEC. 0901, (1)(A)), AND AT THE AIR FORCE ACADEMY
EXCEPT FIRST CLASSMEN.  CATALOGUE, 1962-1963, P. 110.  AND SEE
HONEYWELL, CHAPLAINS OF THE UNITED STATES ARMY (1958); JORGENSEN, THE
SERVICE OF CHAPLAINS TO ARMY AIR UNITS, 1917-1946, VOL. I (1961). 

FN3  THE NEW YORK LEGISLATURE FOLLOWS THE SAME PROCEDURE.  SEE, E.G.,
VOL. 1, N.Y. ASSEMBLY JOUR., 184TH SESS., 1961, P. 8; VOL. 1, N.Y.
SENATE JOUR., 184TH SESS., 1961, P. 5. 

FN4  RULES OF THE SENATE PROVIDE THAT EACH CALENDAR DAY'S SESSION
SHALL OPEN WITH PRAYER.  SEE RULE III, SENATE MANUAL, S. DOC. NO. 2,
87TH CONG., 1ST SESS.  THE SAME IS TRUE OF THE RULES OF THE HOUSE.  SEE
RULE VII, RULES OF THE HOUSE OF REPRESENTATIVES, H.R. DOC. NO. 459,
86TH CONG., 2D SESS.  THE CHAPLAINS OF THE SENATE AND OF THE HOUSE
RECEIVE $8,810 ANNUALLY.  SEE 75 STAT. 320, 324. 

FN5  IT WOULD, I ASSUME, MAKE NO DIFFERENCE IN THE PRESENT CASE IF A
DIFFERENT PRAYER WERE SAID EVERY DAY OR IF THE MINISTERS OF THE
COMMUNITY ROTATED, EACH GIVING HIS OWN PRAYER.  FOR SOME OF THE
PETITIONERS IN THE PRESENT CASE PROFESS NO RELIGION. 

THE PLEDGE OF ALLEGIANCE, LIKE THE PRAYER, RECOGNIZES THE EXISTENCE
OF A SUPREME BEING.  SINCE 1954 IT HAS CONTAINED THE WORDS "ONE NATION
UNDER GOD, INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL."  36 U.S.C.
SEC. 172.  THE HOUSE REPORT RECOMMENDING THE ADDITION OF THE WORDS
"UNDER GOD" STATED THAT THOSE WORDS IN NO WAY RUN CONTRARY TO THE FIRST
AMENDMENT BUT RECOGNIZE "ONLY THE GUIDANCE OF GOD IN OUR NATIONAL
AFFAIRS."  H.R. REP. NO. 1693, 83D CONG., 2D SESS., P. 3.  AND SEE S.
REP. NO. 1287, 83D CONG., 2D SESS.  SENATOR FERGUSON, WHO SPONSORED THE
MEASURE IN THE SENATE, POINTED OUT THAT THE WORDS "IN GOD WE TRUST" ARE
OVER THE ENTRANCE TO THE SENATE CHAMBER.  100 CONG. REC. 6348.  HE
ADDED:

"I HAVE FELT THAT THE PLEDGE OF ALLEGIANCE TO THE FLAG WHICH STANDS
FOR THE UNITED STATES OF AMERICA SHOULD RECOGNIZE THE CREATOR WHO WE
REALLY BELIEVE IS IN CONTROL OF THE DESTINIES OF THIS GREAT REPUBLIC. 

"IT IS TRUE THAT UNDER THE CONSTITUTION NO POWER IS LODGED ANYWHERE
TO ESTABLISH A RELIGION.  THIS IS NOT AN ATTEMPT TO ESTABLISH A
RELIGION; IT HAS NOTHING TO DO WITH ANYTHING OF THAT KIND.  IT RELATES
TO BELIEF IN GOD, IN WHOM WE SINCERELY REPOSE OUR TRUST.  WE KNOW THAT
AMERICA CANNOT BE DEFENDED BY GUNS, PLANES, AND SHIPS ALONE. 
APPROPRIATIONS AND EXPENDITURES FOR DEFENSE WILL BE OF VALUE ONLY IF
THE GOD UNDER WHOM WE LIVE BELIEVES THAT WE ARE IN THE RIGHT.  WE
SHOULD AT ALL TIMES RECOGNIZE GOD'S PROVINCE OVER THE LIVES OF OUR
PEOPLE AND OVER THIS GREAT NATION."  IBID.  AND SEE 100 CONG. REC. 7757
ET SEQ. FOR THE DEBATES IN THE HOUSE. 

THE ACT OF MARCH 3, 1865, 13 STAT. 517, 518, AUTHORIZED THE PHRASE
"IN GOD WE TRUST" TO BE PLACED ON COINS.  AND SEE 17 STAT. 427.  THE
FIRST MANDATORY REQUIREMENT FOR THE USE OF THAT MOTTO ON COINS WAS MADE
BY THE ACT OF MAY 18, 1908, 35 STAT. 164.  SEE H.R. REP. NO. 1106, 60TH
CONG., 1ST SESS.; 42 CONG. REC. 3384 ET SEQ. THE USE OF THE MOTTO ON
ALL CURRENCY AND COINS WAS DIRECTED BY THE ACT OF JULY 11, 1955, 69
STAT. 290.  SEE H.R. REP. NO. 662, 84TH CONG., 1ST SESS.; S. REP. NO.
637, 84TH CONG., 1ST SESS.  MOREOVER, BY THE JOINT RESOLUTION OF JULY
30, 1956, OUR NATIONAL MOTTO WAS DECLARED TO BE "IN GOD WE TRUST."  70
STAT. 732.  IN REPORTING THE JOINT RESOLUTION, THE SENATE JUDICIARY
COMMITTEE STATED: 

"FURTHER OFFICIAL RECOGNITION OF THIS MOTTO WAS GIVEN BY THE ADOPTION
OF THE STAR-SPANGLED BANNER AS OUR NATIONAL ANTHEM.  ONE STANZA OF OUR
NATIONAL ANTHEM IS AS FOLLOWS: 

"'O, THUS BE IT EVER WHEN FREEMEN SHALL STAND 

BETWEEN THEIR LOV'D HOME AND THE WAR'S DESOLATION] 

BLEST WITH VICT'RY AND PEACE MAY THE HEAV'N RESCUED LAND 

PRAISE THE POWER THAT HATH MADE AND PRESERVED US A NATION] 

THEN CONQUER WE MUST WHEN OUR CAUSE IT IS JUST, 

AND THIS BE OUR MOTTO - "IN GOD IS OUR TRUST." 

AND THE STAR-SPANGLED BANNER IN TRIUMPH SHALL WAVE 

O'ER THE LAND OF THE FREE AND THE HOME OF THE BRAVE.' 

"IN VIEW OF THESE WORDS IN OUR NATIONAL ANTHEM, IT IS CLEAR THAT 'IN
GOD WE TRUST' HAS A STRONG CLAIM AS OUR NATIONAL MOTTO."  S. REP. NO.
2703, 84TH CONG., 2D SESS., P. 2. 

FN6  THE FACT THAT TAXPAYERS DO NOT HAVE STANDING IN THE FEDERAL
COURTS TO RAISE THE ISSUE (FROTHINGHAM V. MELLON, 262 U.S. 447) IS OF
COURSE NO JUSTIFICATION FOR DRAWING A LINE BETWEEN WHAT IS DONE IN NEW
YORK ON THE ONE HAND AND ON THE OTHER WHAT WE DO AND WHAT CONGRESS DOES
IN THIS MATTER OF PRAYER. 

FN7  THE COURT ANALOGIZES THE PRESENT CASE TO THOSE INVOLVING THE
TRADITIONAL ESTABLISHED CHURCH.  WE ONCE HAD AN ESTABLISHED CHURCH, THE
ANGLICAN.  ALL BAPTISMS AND MARRIAGES HAD TO TAKE PLACE THERE.  THE
CHURCH WAS SUPPORTED BY TAXATION.  IN THESE AND OTHER WAYS THE ANGLICAN
CHURCH WAS FAVORED OVER THE OTHERS.  THE FIRST AMENDMENT PUT AN END TO
PLACING ANY ONE CHURCH IN A PREFERRED POSITION.  IT ENDED SUPPORT OF
ANY CHURCH OR ALL CHURCHES BY TAXATION.  IT WENT FURTHER AND PREVENTED
SECULAR SANCTION TO ANY RELIGIOUS CEREMONY, DOGMA, OR RITE.  THUS, IT
PREVENTS CIVIL PENALTIES FROM BEING APPLIED AGAINST RECALCITRANTS OR
NONCONFORMISTS. 

FN8  SOME COMMUNITIES HAVE A CHRISTMAS TREE PURCHASED WITH THE
TAXPAYERS' MONEY.  THE TREE IS SOMETIMES DECORATED WITH THE WORDS
"PEACE ON EARTH, GOODWILL TO MEN."  AT OTHER TIMES THE AUTHORITIES DRAW
FROM A DIFFERENT VERSION OF THE BIBLE WHICH SAYS "PEACE ON EARTH TO MEN
OF GOODWILL."  CHRISTMAS, I SUPPOSE, IS STILL A RELIGIOUS CELEBRATION,
NOT MERELY A DAY PUT ON THE CALENDAR FOR THE BENEFIT OF MERCHANTS. 

FN9  RELIGION WAS ONCE DEEMED TO BE A FUNCTION OF THE PUBLIC SCHOOL
SYSTEM.  THE NORTHWEST ORDINANCE, WHICH ANTEDATED THE FIRST AMENDMENT,
PROVIDED IN ARTICLE III THAT "RELIGION, MORALITY, AND KNOWLEDGE BEING
NECESSARY TO GOOD GOVERNMENT AND THE HAPPINESS OF MANKIND, SCHOOLS AND
THE MEANS OF EDUCATION SHALL FOREVER BE ENCOURAGED." 

MR. JUSTICE STEWART, DISSENTING. 

A LOCAL SCHOOL BOARD IN NEW YORK HAS PROVIDED THAT THOSE PUPILS WHO
WISH TO DO SO MAY JOIN IN A BRIEF PRAYER AT THE BEGINNING OF EACH
SCHOOL DAY, ACKNOWLEDGING THEIR DEPENDENCE UPON GOD AND ASKING HIS
BLESSING UPON THEM AND UPON THEIR PARENTS, THEIR TEACHERS, AND THEIR
COUNTRY.  THE COURT TODAY DECIDES THAT IN PERMITTING THIS BRIEF
NONDENOMINATIONAL PRAYER THE SCHOOL BOARD HAS VIOLATED THE CONSTITUTION
OF THE UNITED STATES.  I THINK THIS DECISION IS WRONG. 

THE COURT DOES NOT HOLD, NOR COULD IT, THAT NEW YORK HAS INTERFERED
WITH THE FREE EXERCISE OF ANYBODY'S RELIGION.  FOR THE STATE COURTS
HAVE MADE CLEAR THAT THOSE WHO OBJECT TO RECITING THE PRAYER MUST BE
ENTIRELY FREE OF ANY COMPULSION TO DO SO, INCLUDING ANY "EMBARRASSMENTS
AND PRESSURES."  CF. WEST VIRGINIA STATE BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624.  BUT THE COURT SAYS THAT IN PERMITTING SCHOOL
CHILDREN TO SAY THIS SIMPLE PRAYER, THE NEW YORK AUTHORITIES HAVE
ESTABLISHED "AN OFFICIAL RELIGION." 

WITH ALL RESPECT, I THINK THE COURT HAS MISAPPLIED A GREAT
CONSTITUTIONAL PRINCIPLE.  I CANNOT SEE HOW AN "OFFICIAL RELIGION" IS
ESTABLISHED BY LETTING THOSE WHO WANT TO SAY A PRAYER SAY IT.  ON THE
CONTRARY, I THINK THAT TO DENY THE WISH OF THESE SCHOOL CHILDREN TO
JOIN IN RECITING THIS PRAYER IS TO DENY THEM THE OPPORTUNITY OF SHARING
IN THE SPIRITUAL HERITAGE OF OUR NATION. 

THE COURT'S HISTORICAL REVIEW OF THE QUARRELS OVER THE BOOK OF COMMON
PRAYER IN ENGLAND THROWS NO LIGHT FOR ME ON THE ISSUE BEFORE US IN THIS
CASE.  ENGLAND HAD THEN AND HAS NOW AN ESTABLISHED CHURCH.  EQUALLY
UNENLIGHTENING, I THINK, IS THE HISTORY OF THE EARLY ESTABLISHMENT AND
LATER REJECTION OF AN OFFICIAL CHURCH IN OUR OWN STATES.  FOR WE DEAL
HERE NOT WITH THE ESTABLISHMENT OF A STATE CHURCH, WHICH WOULD, OF
COURSE, BE CONSTITUTIONALLY IMPERMISSIBLE, BUT WITH WHETHER SCHOOL
CHILDREN WHO WANT TO BEGIN THEIR DAY BY JOINING IN PRAYER MUST BE
PROHIBITED FROM DOING SO. MOREOVER, I THINK THAT THE COURT'S TASK, IN
THIS AS IN ALL AREAS OF CONSTITUTIONAL ADJUDICATION, IS NOT RESPONSIBLY
AIDED BY THE UNCRITICAL INVOCATION OF METAPHORS LIKE THE "WALL OF
SEPARATION," A PHRASE NOWHERE TO BE FOUND IN THE CONSTITUTION.  WHAT IS
RELEVANT TO THE ISSUE HERE IS NOT THE HISTORY OF AN ESTABLISHED CHURCH
IN SIXTEENTH CENTURY ENGLAND OR IN EIGHTEENTH CENTURY AMERICA, BUT THE
HISTORY OF THE RELIGIOUS TRADITIONS OF OUR PEOPLE, REFLECTED IN
COUNTLESS PRACTICES OF THE INSTITUTIONS AND OFFICIALS OF OUR
GOVERNMENT. 

AT THE OPENING OF EACH DAY'S SESSION OF THIS COURT WE STAND, WHILE
ONE OF OUR OFFICIALS INVOKES THE PROTECTION OF GOD.  SINCE THE DAYS OF
JOHN MARSHALL OUR CRIER HAS SAID, "GOD SAVE THE UNITED STATES AND THIS
HONORABLE COURT."  (FN1)  BOTH THE SENATE AND THE HOUSE OF
REPRESENTATIVES OPEN THEIR DAILY SESSIONS WITH PRAYER.  (FN2)  EACH OF
OUR PRESIDENTS, FROM GEORGE WASHINGTON TO JOHN F. KENNEDY, HAS UPON
ASSUMING HIS OFFICE ASKED THE PROTECTION AND HELP OF GOD.  (FN3) 

THE COURT TODAY SAYS THAT THE STATE AND FEDERAL GOVERNMENTS ARE
WITHOUT CONSTITUTIONAL POWER TO PRESCRIBE ANY PARTICULAR FORM OF WORDS
TO BE RECITED BY ANY GROUP OF THE AMERICAN PEOPLE ON ANY SUBJECT
TOUCHING RELIGION.  (FN4)  ONE OF THE STANZAS OF "THE STAR-SPANGLED
BANNER," MADE OUR NATIONAL ANTHEM BY ACT OF CONGRESS IN 1931, (FN5)
CONTAINS THESE VERSES: 

"BLEST WITH VICTORY AND PEACE, MAY THE HEAV'N RESCUED LAND. 

PRAISE THE POW'R THAT HATH MADE AND PRESERVED US A NATION] 

THEN CONQUER WE MUST, WHEN OUR CAUSE IT IS JUST, AND THIS BE OUR
MOTTO 'IN GOD IS OUR TRUST.'" 

IN 1954 CONGRESS ADDED A PHRASE TO THE PLEDGE OF ALLEGIANCE TO THE
FLAG SO THAT IT NOW CONTAINS THE WORDS "ONE NATION UNDER GOD,
INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL."  (FN6)  IN 1952
CONGRESS ENACTED LEGISLATION CALLING UPON THE PRESIDENT EACH YEAR TO
PROCLAIM A NATIONAL DAY OF PRAYER.  (FN7)  SINCE 1865 THE WORDS "IN GOD
WE TRUST" HAVE BEEN IMPRESSED ON OUR COINS.  (FN8) 

COUNTLESS SIMILAR EXAMPLES COULD BE LISTED, BUT THERE IS NO NEED TO
BELABOR THE OBVIOUS.  (FN9) IT WAS ALL SUMMED UP BY THIS COURT JUST TEN
YEARS AGO IN A SINGLE SENTENCE: "WE ARE A RELIGIOUS PEOPLE WHOSE
INSTITUTIONS PRESUPPOSE A SUPREME BEING."  ZORACH V. CLAUSON, 343 U.S.
306, 313. 

I DO NOT BELIEVE THAT THIS COURT, OR THE CONGRESS, OR THE PRESIDENT
HAS BY THE ACTIONS AND PRACTICES I HAVE MENTIONED ESTABLISHED AN
"OFFICIAL RELIGION" IN VIOLATION OF THE CONSTITUTION.  AND I DO NOT
BELIEVE THE STATE OF NEW YORK HAS DONE SO IN THIS CASE.  WHAT EACH HAS
DONE HAS BEEN TO RECOGNIZE AND TO FOLLOW THE DEEPLY ENTRENCHED AND
HIGHLY CHERISHED SPIRITUAL TRADITIONS OF OUR NATION - TRADITIONS WHICH
COME DOWN TO US FROM THOSE WHO ALMOST TWO HUNDRED YEARS AGO AVOWED
THEIR "FIRM RELIANCE ON THE PROTECTION OF DIVINE PROVIDENCE" WHEN THEY
PROCLAIMED THE FREEDOM AND INDEPENDENCE OF THIS BRAVE NEW WORLD. 
(FN10) 

I DISSENT. 

FN1  SEE WARREN, THE SUPREME COURT IN UNITED STATES HISTORY, VOL. 1,
P. 469. 

FN2  SEE RULE III, SENATE MANUAL, S. DOC. NO. 2, 87TH CONG., 1ST
SESS.  SEE RULE VII, RULES OF THE HOUSE OF REPRESENTATIVES, H.R. DOC.
NO. 459, 86TH CONG., 2D SESS. 

FN3  FOR EXAMPLE: 

ON APRIL 30, 1789, PRESIDENT GEORGE WASHINGTON SAID: 

"  ... IT WOULD BE PECULIARLY IMPROPER TO OMIT IN THIS FIRST OFFICIAL
ACT MY FERVENT SUPPLICATIONS TO THAT ALMIGHT BEING WHO RULES OVER THE
UNIVERSE, WHO PRESIDES IN THE COUNCILS OF NATIONS, AND WHOSE
PROVIDENTIAL AIDS CAN SUPPLY EVERY HUMAN DEFECT, THAT HIS BENEDICTION
MAY CONSECRATE TO THE LIBERTIES AND HAPPINESS OF THE PEOPLE OF THE
UNITED STATES A GOVERNMENT INSTITUTED BY THEMSELVES FOR THESE ESSENTIAL
PURPOSES, AND MAY ENABLE EVERY INSTRUMENT EMPLOYED IN ITS
ADMINISTRATION TO EXECUTE WITH SUCCESS THE FUNCTIONS ALLOTTED TO HIS
CHARGE.  IN TENDERING THIS HOMAGE TO THE GREAT AUTHOR OF EVERY PUBLIC
AND PRIVATE GOOD, I ASSURE MYSELF THAT IT EXPRESSES YOUR SENTIMENTS NOT
LESS THAN MY OWN, NOT THOSE OF MY FELLOW-CITIZENS AT LARGE LESS THAN
EITHER.  NO PEOPLE CAN BE BOUND TO ACKNOWLEDGE AND ADORE THE INVISIBLE
HAND WHICH CONDUCTS THE AFFAIRS OF MEN MORE THAN THOSE OF THE UNITED
STATES  ...  . 

     *         *         *         *   * 

"HAVING THUS IMPARTED TO YOU MY SENTIMENTS AS THEY HAVE BEEN AWAKENED
BY THE OCCASION WHICH BRINGS US TOGETHER, I SHALL TAKE MY PRESENT
LEAVE; BUT NOT WITHOUT RESORTING ONCE MORE TO THE BENIGN PARENT OF THE
HUMAN RACE IN HUMBLE SUPPLICATION THAT, SINCE HE HAS BEEN PLEASED TO
FAVOR THE AMERICAN PEOPLE WITH OPPORTUNITIES FOR DELIBERATING IN
PERFECT TRANQUILITY, AND DISPOSITIONS FOR DECIDING WITH UNPARRALLELED
UNANIMITY ON A FORM OF GOVERNMENT FOR THE SECURITY OF THEIR UNION AND
THE ADVANCEMENT OF THEIR HAPPINESS, SO HIS DIVINE BLESSING MAY BE
EQUALLY CONSPICUOUS IN THE ENLARGED VIEWS, THE TEMPERATE CONSULTATIONS,
AND THE WISE MEASURES ON WHICH THE SUCCESS OF THIS GOVERNMENT MUST
DEPEND."    ON MARCH 4, 1797, PRESIDENT JOHN ADAMS SAID: 

"AND MAY THAT BEING WHO IS SUPREME OVER ALL, THE PATRON OF ORDER, THE
FOUNDATION OF JUSTICE, AND THE PROTECTOR IN ALL AGES OF THE WORLD OF
VIRTUOUS LIBERTY, CONTINUE HIS BLESSING UPON THE NATION AND ITS
GOVERNMENT AND GIVE IT ALL POSSIBLE SUCCESS AND DURATION CONSISTENT
WITH THE ENDS OF HIS PROVIDENCE." 

ON MARCH 4, 1805, PRESIDENT THOMAS JEFFERSON SAID: 

"  ...  I SHALL NEED, TOO, THE FAVOR OF THAT BEING IN WHOSE HANDS WE
ARE, WHO LED OUR FATHERS, AS ISRAEL OF OLD, FROM THEIR NATIVE LAND AND
PLANTED THEM IN A COUNTRY FLOWING WITH ALL THE NECESSARIES AND COMFORTS
OF LIFE; WHO HAS COVERED OUR INFANCY WITH HIS PROVIDENCE AND OUR RIPER
YEARS WITH HIS WISDOM AND POWER, AND TO WHOSE GOODNESS I ASK YOU TO
JOIN IN SUPPLICATIONS WITH ME THAT HE WILL SO ENLIGHTEN THE MINDS OF
YOUR SERVANTS, GUIDE THEIR COUNCILS, AND PROSPER THEIR MEASURES THAT
WHATSOEVER THEY DO SHALL RESULT IN YOUR GOOD, AND SHALL SECURE TO YOU
THE PEACE, FRIENDSHIP, AND APPROBATION OF ALL NATIONS." 

ON MARCH 4, 1809, PRESIDENT JAMES MADISON SAID: 

"BUT THE SOURCE TO WHICH I LOOK  ...  IS IN  ...  MY FELLOW-CITIZENS,
AND IN THE COUNSELS OF THOSE REPRESENTING THEM IN THE OTHER DEPARTMENTS
ASSOCIATED IN THE CARE OF THE NATIONAL INTERESTS.  IN THESE MY
CONFIDENCE WILL UNDER EVERY DIFFICULTY BE BEST PLACED, NEXT TO THAT
WHICH WE HAVE ALL BEEN ENCOURAGED TO FEEL IN THE GUARDIANSHIP AND
GUIDANCE OF THAT ALMIGHTY BEING WHOSE POWER REGULATES THE DESTINY OF
NATIONS, WHOSE BLESSINGS HAVE BEEN SO CONSPICUOUSLY DISPENSED TO THIS
RISING REPUBLIC, AND TO WHOM WE ARE BOUND TO ADDRESS OUR DEVOUT
GRATITUDE FOR THE PAST, AS WELL AS OUR FERVENT SUPPLICATIONS AND BEST
HOPES FOR THE FUTURE." 

ON MARCH 4, 1865, PRESIDENT ABRAHAM LINCOLN SAID: 

"  ...  FONDLY DO WE HOPE, FERVENTLY DO WE PRAY, THAT THIS MIGHTY
SCOURGE OF WAR MAY SPEEDILY PASS AWAY.  YET, IF GOD WILLS THAT IT
CONTINUE UNTIL ALL THE WEALTH PILED BY THE BONDSMAN'S TWO HUDNRED AND
FIFTY YEARS OF UNREQUITED TOIL SHALL BE SUNK, AND UNTIL EVERY DROP OF
BLOOD DRAWN WITH THE LASH SHALL BE PAID BY ANOTHER DRAWN WITH THE
SWORD, AS WE SAID THREE THOUSAND YEARS AGO, SO STILL IT MUST BE SAID
'THE JUDGMENTS OF THE LORD ARE TRUE AND RIGHTEOUS ALTOGETHER.' 

"WITH MALICE TOWARD NONE, WITH CHARITY FOR ALL, WITH FIRMNESS IN THE
RIGHT AS GOD GIVES US TO SEE THE RIGHT, LET US STRIVE ON TO FINISH THE
WORK WE ARE IN, TO BIND UP THE NATION'S WOUNDS, TO CARE FOR HIM WHO
SHALL HAVE BORNE THE BATTLE AND FOR HIS WIDOW AND HIS ORPHAN, TO DO ALL
WHICH MAY ACHIEVE AND CHERISH A JUST AND LASTING PEACE AMONG OURSELVES
AND WITH ALL NATIONS." 

ON MARCH 4, 1885, PRESIDENT GROVER CLEVELAND SAID: 

"  ...  AND LET US NOT TRUST TO HUMAN EFFORT ALONE, BUT HUMBLY
ACKNOWLEDGING THE POWER AND GOODNESS OF ALMIGHTY GOD, WHO PRESIDES OVER
THE DESTINY OF NATIONS, AND WHO HAS AT ALL TIMES BEEN REVEALED IN OUR
COUNTRY'S HISTORY, LET US INVOKE HIS AID AND HIS BLESSING UPON OUR
LABORS." 

ON MARCH 5, 1917, PRESIDENT WOODROW WILSON SAID: 

"  ...  I PRAY GOD I MAY BE GIVEN THE WISDOM AND THE PRUDENCE TO DO MY
DUTY IN THE TRUE SPIRIT OF THIS GREAT PEOPLE." 

ON MARCH 4, 1933, PRESIDENT FRANKLIN D. ROOSEVELT SAID: 

"IN THIS DEDICATION OF A NATION WE HUMBLY ASK THE BLESSING OF GOD. 
MAY HE PROTECT EACH AND EVERY ONE OF US.  MAY HE GUIDE ME IN THE DAYS
TO COME." 

ON JANUARY 21, 1957, PRESIDENT DWIGHT D. EISENHOWER SAID: 

"BEFORE ALL ELSE, WE SEEK, UPON OUR COMMON LABOR AS A NATION, THE
BLESSINGS OF ALMIGHTY GOD.  AND THE HOPES IN OUR HEARTS FASHION THE
DEEPEST PRAYERS OF OUR WHOLE PEOPLE." 

ON JANUARY 20, 1961, PRESIDENT JOHN F. KENNEDY SAID: 

"THE WORLD IS VERY DIFFERENT NOW  ...  .  AND YET THE SAME
REVOLUTIONARY BELIEFS FOR WHICH OUR FOREBEARS FOUGHT ARE STILL AT ISSUE
AROUND THE GLOBE - THE BELIEF THAT THE RIGHTS OF MAN COME NOT FROM THE
GENEROSITY OF THE STATE BUT FROM THE HAND OF GOD. 

     *         *         *         *         * 

"WITH A GOOD CONSCIENCE OUR ONLY SURE REWARD, WITH HISTORY THE FINAL
JUDGE OF OUR DEEDS, LET US GO FORTH TO LEAD THE LAND WE LOVE, ASKING
HIS BLESSING AND HIS HELP, BUT KNOWING THAT HERE ON EARTH GOD'S WORK
MUST TRULY BE OUR OWN." 

FN4  MY BROTHER DOUGLAS SAYS THAT THE ONLY QUESTION BEFORE US IS
WHETHER GOVERNMENT "CAN CONSTITUTIONALLY FINANCE A RELIGIOUS
EXERCISE."  THE OFFICIAL CHAPLAINS OF CONGRESS ARE PAID WITH PUBLIC
MONEY.  SO ARE MILITARY CHAPLAINS.  SO ARE STATE AND FEDERAL PRISON
CHAPLAINS. 

FN5  36 U.S.C. SEC. 170. 

FN6  36 U.S.C. SEC. 172. 

FN7  36 U.S.C. SEC. 185. 

FN8  13 STAT. 517, 518; 17 STAT. 427; 35 STAT. 164; 69 STAT. 290. 
THE CURRENT PROVISIONS ARE EMBODIED IN 31 U.S.C. SECS. 324, 324A. 

FN9  I AM AT A LOSS TO UNDERSTAND THE COURT'S UNSUPPORTED IPSE DIXIT
THAT THESE OFFICIAL EXPRESSIONS OF RELIGIOUS FAITH IN AND RELIANCE UPON
A SUPREME BEING "BEAR NO TRUE RESEMBLANCE TO THE UNQUESTIONED RELIGIOUS
EXERCISE THAT THE STATE OF NEW YORK HAS SPONSORED IN THIS INSTANCE." 
SEE ANTE, P. 435, N. 21.  I CAN HARDLY THINK THAT THE COURT MEANS TO
SAY THAT THE FIRST AMENDMENT IMPOSES A LESSER RESTRICTION UPON THE
FEDERAL GOVERNMENT THAN DOES THE FOURTEENTH AMENDMENT UPON THE STATES. 
OR IS THE COURT SUGGESTING THAT THE CONSTITUTION PERMITS JUDGES AND
CONGRESSMEN AND PRESIDENTS TO JOIN IN PRAYER, BUT PROHIBITS SCHOOL
CHILDREN FROM DOING SO? 

FN10  THE DECLARATION OF INDEPENDENCE ENDS WITH THIS SENTENCE:  "AND
FOR THE SUPPORT OF THIS DECLARATION, WITH A FIRM RELIANCE ON THE
PROTECTION OF DIVINE PROVIDENCE, WE MUTUALLY PLEDGE TO EACH OTHER OUR
LIVES, OUR FORTUNES AND OUR SACRED HONOR." 
..END :







STATE BOARD OF INSURANCE V. TODD SHIPYARDS CORP. 370 U.S. 451 


NO. 144.  ARGUED MARCH 21, 1962 - DECIDED JUNE 25, 1962 - 340 S.W.2D
339, AFFIRMED. 


RESPONDENT IS INCORPORATED AND DOMICILED IN NEW YORK; BUT IT DOES
BUSINESS AND OWNS REAL AND PERSONAL PROPERTY IN TEXAS.  IT SUED TO
RECOVER TAXES LEVIED AND COLLECTED BY TEXAS ON INSURANCE COVERING ITS
PROPERTY IN TEXAS.  ALL TRANSACTIONS PERTAINING TO SUCH INSURANCE TOOK
PLACE OUTSIDE OF TEXAS.  THE INSURERS WERE DOMICILED IN LONDON AND WERE
NOT LICENSED IN TEXAS AND DID NO BUSINESS AND HAD NO OFFICE OR AGENTS
IN TEXAS.  THE INSURANCE WAS BOUGHT AND ISSUED IN NEW YORK AND THE
PREMIUMS THEREON AND CLAIMS THEREUNDER WERE PAYABLE IN NEW YORK.  HELD:
IN THE LIGHT OF THE HISTORY AND PROVISIONS OF THE MCCARRAN-FERGUSON
ACT, 59 STAT. 33, THE TEXAS TAX ON THESE WHOLLY OUT-OF-STATE
TRANSACTIONS IS INVALID.  PP. 452-458. 

STATE BOARD OF INSURANCE ET AL. V. TODD SHIPYARDS CORP. 

CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, THIRD SUPREME
JUDICIAL DISTRICT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WHEN WE HELD IN UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN.,
322 U.S. 533, THAT THE MODERN BUSINESS OF INSURANCE WAS "INTERSTATE
COMMERCE," WE PUT IT IN A CATEGORY WHICH CONGRESS COULD REGULATE AND
WHICH, IF OUR PRIOR DECISIONS CONTROLLED, COULD NOT IN SOME RESPECTS BE
REGULATED BY THE STATES, EVEN IN ABSENCE OF FEDERAL REGULATION.  SEE
FRANKFURTER, THE COMMERCE CLAUSE (1937); RUTLEDGE, A DECLARATION OF
LEGAL FAITH (1947). 

CONGRESS PROMPTLY PASSED THE MCCARRAN-FERGUSON ACT, 59 STAT. 33, 15
U.S.C. SEC. 1011, WHICH PROVIDED THAT THE REGULATION AND TAXATION OF
INSURANCE SHOULD BE LEFT TO THE STATES, WITHOUT RESTRICTION BY REASON
OF THE COMMERCE CLAUSE.  (FN1)  SUBSEQUENTLY, BY FORCE OF THE MCCARRAN
FERGUSON ACT, WE UPHELD THE CONTINUED TAXATION AND REGULATION BY THE
STATES OF INTERSTATE INSURANCE TRANSACTIONS.  PRUDENTIAL INS. CO. V.
BENJAMIN, 328 U.S. 408. 

PRIOR TO THE SOUTH-EASTERN UNDERWRITERS DECISION, WE HAD GIVEN BROAD
SCOPE TO LOCAL REGULATION OF THE INSURANCE BUSINESS.  OSBORN V. OZLIN,
310 U.S. 53; HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313.  THE OSBORN
CASE UPHELD A VIRGINIA REQUIREMENT THAT INSURANCE COMPANIES AUTHORIZED
TO DO BUSINESS IN THAT STATE MUST WRITE POLICIES THROUGH RESIDENT
AGENTS.  THE HOOPESTON CASE, WHILE IT INVOLVED THE MAKING OF OUT-OF
STATE INSURANCE CONTRACTS, ALSO INVOLVED SERVICING OF POLICIES IN NEW
YORK, THE REGULATING STATE. 

HERE, UNLIKE THE OSBORN AND HOOPESTON CASES, THE INSURANCE COMPANIES
CARRY ON NO ACTIVITIES WITHIN THE STATE OF TEXAS.  OF COURSE, THE
INSURED DOES BUSINESS IN TEXAS AND THE PROPERTY INSURED IS LOCATED
THERE.  IT IS EARNESTLY ARGUED THAT, UNLESS THE PHILOSOPHY OF THE
OSBORN AND HOOPESTON DECISIONS IS TO BE RESTRICTED, THE PRESENT TEXAS
TAX (FN2) ON PREMIUMS PAID OUT-OF-STATE ON OUT-OF-STATE CONTRACTS
SHOULD BE SUSTAINED.  WE ARE URGED TO FOLLOW THE APPROACH OF THE OSBORN
AND HOOPESTON DECISIONS, LOOK TO THE ASPECTS OF THE INSURANCE
TRANSACTIONS TAKEN AS A WHOLE, AND DECIDE THAT THERE ARE SUFFICIENT
CONTACTS WITH TEXAS TO JUSTIFY THIS TAX UNDER THE REQUIREMENTS OF DUE
PROCESS. 

WERE THE OSBORN AND HOOPESTON CASES AND THE BARE BONES OF THE
MCCARRAN-FERGUSON ACT OUR ONLY CRITERIA FOR DECISION, WE WOULD HAVE
PRESENTED THE QUESTION WHETHER THREE PRIOR DECISIONS - ALLGEYER V.
LOUISIANA, 165 U.S. 578; ST. LOUIS COTTON COMPRESS CO. V. ARKANSAS, 260
U.S. 346; CONNECTICUT GENERAL LIFE INS. CO. V. JOHNSON, 303 U.S. 77 -
HAVE CONTINUING VITALITY.  THE FIRST TWO WERE DISTINGUISHED IN THE
OSBORN (310 U.S., AT 66-67) AND HOOPESTON (318 U.S., AT 318-319)
CASES.  THE ALLGEYER CASE HELD THAT LOUISIANA BY REASON OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT COULD NOT MAKE IT A
MISDEMEANOR TO EFFECT INSURANCE ON LOUISIANA RISKS WITH AN INSURANCE
COMPANY NOT LICENSED TO DO BUSINESS IN LOUISIANA, WHERE THE INSURED
THROUGH USE OF THE MAILS CONTRACTED IN NEW YORK FOR THE POLICY.  THE
ST. LOUIS COTTON COMPRESS CASE HELD INVALID UNDER THE DUE PROCESS
CLAUSE AN ARKANSAS TAX ON THE PREMIUMS PAID FOR A POLICY ON ARKANSAS
RISKS, MADE WITH AN OUT-OF-STATE COMPANY HAVING NO OFFICE OR AGENTS IN
ARKANSAS.  THE CONNECTICUT GENERAL LIFE INSURANCE CASE HELD INVALID
UNDER THE DUE PROCESS CLAUSE A CALIFORNIA TAX ON PREMIUMS PAID IN
CONNECTICUT BY ONE INSURANCE COMPANY TO ANOTHER FOR REINSURANCE OF LIFE
INSURANCE POLICIES WRITTEN IN CALIFORNIA ON CALIFORNIA RESIDENTS, EVEN
THOUGH BOTH INSURANCE COMPANIES WERE AUTHORIZED TO DO BUSINESS IN
CALIFORNIA.  THE COURT STATED: 

"ALL THAT APPELLANT DID IN EFFECTING THE REINSURANCE WAS DONE WITHOUT
THE STATE AND FOR ITS TRANSACTION NO PRIVILEGE OR LICENSE BY CALIFORNIA
WAS NEEDFUL.  THE TAX CANNOT BE SUSTAINED EITHER AS LAID ON PROPERTY,
BUSINESS DONE, OR TRANSACTIONS CARRIED ON WITHIN THE STATE, OR AS A TAX
ON A PRIVILEGE GRANTED BY THE STATE."  303 U.S., AT 82. 

THE TEXAS COURT OF CIVIL APPEALS, 340 S.W.2D 339, AND THE TEXAS
SUPREME COURT, FEELING BOUND BY THESE DECISIONS, HELD THE TAX ON
PREMIUMS UNCONSTITUTIONAL, 162 TEX. 8, 343 S.W.2D 241.  WE GRANTED
CERTIORARI, 368 U.S. 810. 

THE INSURANCE TRANSACTIONS INVOLVED IN THE PRESENT LITIGATION TAKE
PLACE ENTIRELY OUTSIDE TEXAS.  THE INSURANCE, WHICH IS PRINCIPALLY
INSURANCE AGAINST LOSS OR LIABILITY ARISING FROM DAMAGE TO PROPERTY, IS
NEGOTIATED AND PAID FOR OUTSIDE TEXAS.  THE POLICIES ARE ISSUED OUTSIDE
TEXAS.  ALL LOSSES ARISING UNDER THE POLICIES ARE ADJUSTED AND PAID
OUTSIDE TEXAS.  THE INSURERS ARE NOT LICENSED TO DO BUSINESS IN TEXAS,
HAVE NO OFFICE OR PLACE OF BUSINESS IN TEXAS, DO NOT SOLICIT BUSINESS
IN TEXAS, HAVE NO AGENTS IN TEXAS, AND DO NOT INVESTIGATE RISKS OR
CLAIMS IN TEXAS. 

THE INSURED IS NOT A DOMICILIARY OF TEXAS BUT A NEW YORK CORPORATION
DOING BUSINESS IN TEXAS.  LOSSES UNDER THE POLICIES ARE PAYABLE NOT TO
TEXAS RESIDENTS BUT TO THE INSURED AT ITS PRINCIPAL OFFICE IN NEW YORK
CITY.  THE ONLY CONNECTION BETWEEN TEXAS AND THE INSURANCE TRANSACTIONS
IS THE FACT THAT THE PROPERTY COVERED BY THE INSURANCE IS PHYSICALLY
LOCATED IN TEXAS. 

WE NEED NOT DECIDE DE NOVO WHETHER THE RESULTS (AND THE REASONS
GIVEN) IN THE ALLGEYER, ST. LOUIS COTTON COMPRESS, AND CONNECTICUT
GENERAL LIFE INSURANCE DECISIONS ARE SOUND AND ACCEPTABLE.  FOR WE HAVE
IN THE HISTORY OF THE MCCARRAN-FERGUSON ACT AN EXPLICIT, UNEQUIVOCAL
STATEMENT THAT THE ACT WAS SO DESIGNED AS NOT TO DISPLACE THOSE THREE
DECISIONS.  THE HOUSE REPORT STATED: 

"IT IS NOT THE INTENTION OF CONGRESS IN THE ENACTMENT OF THIS
LEGISLATION TO CLOTHE THE STATES WITH ANY POWER TO REGULATE OR TAX THE
BUSINESS OF INSURANCE BEYOND THAT WHICH THEY HAD BEEN HELD TO POSSESS
PRIOR TO THE DECISION OF THE UNITED STATES SUPREME COURT IN THE
SOUTHEASTERN UNDERWRITERS ASSOCIATION CASE.  BRIEFLY, YOUR COMMITTEE IS
OF THE OPINION THAT WE SHOULD PROVIDE FOR THE CONTINUED REGULATION AND
TAXATION OF INSURANCE BY THE STATES, SUBJECT ALWAYS, HOWEVER, TO THE
LIMITATIONS SET OUT IN THE CONTROLLING DECISIONS OF THE UNITED STATES
SUPREME COURT, AS, FOR INSTANCE, IN ALLGEYER V. LOUISIANA (165 U.S.
578), ST. LOUIS COTTON COMPRESS CO. V. ARKANSAS (260 U.S. 346), AND
CONNECTICUT GENERAL INSURANCE CO. V. JOHNSON (303 U.S. 77), WHICH HOLD,
INTER ALIA, THAT A STATE DOES NOT HAVE POWER TO TAX CONTRACTS OF
INSURANCE OR REINSURANCE ENTERED INTO OUTSIDE ITS JURISDICTION BY
INDIVIDUALS OR CORPORATIONS RESIDENT OR DOMICILED THEREIN COVERING
RISKS WITHIN THE STATE OR TO REGULATE SUCH TRANSACTIONS IN ANY WAY." 
H.R. REP. NO. 143, 79TH CONG., 1ST SESS., P. 3. 

SENATOR MCCARRAN, AFTER READING THE FOREGOING PART OF THE HOUSE
REPORT DURING THE SENATE DEBATE, STATED, "  ...  WE GIVE TO THE STATES
NO MORE POWERS THAN THOSE THEY PREVIOUSLY HAD, AND WE TAKE NONE FROM
THEM."  91 CONG. REC. 1442. 

SO, WHILE CONGRESS PROVIDED IN 15 U.S.C. SEC. 1012(A) THAT THE
INSURANCE BUSINESS "SHALL BE SUBJECT TO THE LAWS OF THE SEVERAL STATES
WHICH RELATE TO THE REGULATION OR TAXATION OF SUCH BUSINESS," (FN3) IT
INDICATED WITHOUT AMBIGUITY THAT SUCH STATE "REGULATION OR TAXATION"
SHOULD BE KEPT WITHIN THE LIMITS SET BY THE ALLGEYER, ST. LOUIS COTTON
COMPRESS, AND CONNECTICUT GENERAL LIFE INSURANCE DECISIONS. 

THE POWER OF CONGRESS TO GRANT PROTECTION TO INTERSTATE COMMERCE
AGAINST STATE REGULATION OR TAXATION (BETHLEHEM STEEL CO. V. STATE
BOARD, 330 U.S. 767, 775-776; RICE V. SANTA FE ELEVATOR CORP., 331 U.S.
218, 235-236) OR TO WITHHOLD IT (IN RE RAHRER, 140 U.S. 545, 560 ET
SEQ.; PRUDENTIAL INS. CO. V. BENJAMIN, SUPRA) IS SO COMPLETE (FN4) THAT
ITS IDEAS OF POLICY SHOULD PREVAIL. 

CONGRESS, OF COURSE, DOES NOT HAVE THE FINAL SAY AS TO WHAT
CONSTITUTES DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.  AND WHILE
CONGRESS HAS AUTHORITY BY SEC. 5 OF THAT AMENDMENT TO ENFORCE ITS
PROVISIONS (EX PARTE VIRGINIA, 100 U.S. 339; MONROE V. PAPE, 365 U.S.
167), THE MCCARRAN-FERGUSON ACT DOES NOT PURPORT TO DO SO.  WE HAVE, OF
COURSE, FREEDOM TO CHANGE OUR DECISIONS ON THE CONSTITUTIONALITY OF
LAWS.  SMITH V. ALLWRIGHT, 321 U.S. 649, 665.  BUT THE POLICY ANNOUNCED
BY CONGRESS IN THE MCCARRAN-FERGUSON ACT WAS ONE ON WHICH THE INDUSTRY
HAD REASON TO RELY SINCE 1897, WHEN THE ALLGEYER DECISION WAS
ANNOUNCED; AND WE ARE ADVISED BY AN AMICUS BRIEF HOW SEVERE THE IMPACT
WOULD BE ON SMALL INSURANCE COMPANIES SHOULD THE OLD RULE BE CHANGED. 
WHEN, THEREFORE, CONGRESS HAS POSITED A REGIME OF STATE REGULATION ON
THE CONTINUING VALIDITY OF SPECIFIC PRIOR DECISIONS (SEE FEDERAL TRADE
COMM'N V. TRAVELERS HEALTH ASSN., 362 U.S. 293, 301-302), WE SHOULD BE
LOATH TO CHANGE THEM. 

WE HAVE ACCEPTED THE STATUS QUO IN COMPARABLE SITUATIONS.  AFTER THIS
COURT HELD IN SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, THAT A
STATE COULD NOT PROVIDE COMPENSATION TO STEVEDORES DOING MARITIME WORK,
CONGRESS ENACTED THE LONGSHOREMEN'S ACT.  SEE S. REP. NO. 973, 69TH
CONG., 1ST SESS., P. 16; H.R. REP. NO. 1767, 69TH CONG., 2D SESS., P.
20.  IN DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249, WE TOOK NOTE OF THE
PASSAGE OF LAWS WHICH "ACCEPTED THE JENSEN LINE OF DEMARCATION BETWEEN
STATE AND FEDERAL JURISDICTION" (ID., AT 256), WHICH LINE WE ALSO
ACCEPTED IN SPITE OF THE FACT THAT THE JENSEN CASE HAD BECOME IN THE
EYES OF SOME A DERELICT IN THE STREAM OF THE LAW. 

IN TOOLSON V. NEW YORK YANKEES, INC., 346 U.S. 356, 357, WE REFUSED
TO RE-EXAMINE A PRIOR DECISION HOLDING BASEBALL NOT TO BE COVERED BY
THE ANTITRUST LAWS, STATING THAT "THE BUSINESS HAS THUS BEEN LEFT FOR
THIRTY YEARS TO DEVELOP, ON THE UNDERSTANDING THAT IT WAS NOT SUBJECT
TO EXISTING ANTITRUST LEGISLATION."  IN THAT CASE CONGRESS HAD REMAINED
SILENT, NOT CHANGING THE LAW.  HERE CONGRESS TAILORED THE NEW
REGULATIONS FOR THE INSURANCE BUSINESS WITH SPECIFIC REFERENCE TO OUR
PRIOR DECISIONS.  SINCE THESE EARLIER DECISIONS ARE PART OF THE ARCH ON
WHICH THE NEW STRUCTURE RESTS, WE REFRAIN FROM DISTURBING THEM LEST WE
CHANGE THE DESIGN THAT CONGRESS FASHIONED.  AFFIRMED. 

FN1  15 U.S.C. SEC. 1011 PROVIDES: 

"CONGRESS DECLARES THAT THE CONTINUED REGULATION AND TAXATION BY THE
SEVERAL STATES OF THE BUSINESS OF INSURANCE IS IN THE PUBLIC INTEREST,
AND THAT SILENCE ON THE PART OF THE CONGRESS SHALL NOT BE CONSTRUED TO
IMPOSE ANY BARRIER TO THE REGULATION OR TAXATION OF SUCH BUSINESS BY
THE SEVERAL STATES." 

15 U.S.C. SEC. 1012 PROVIDES, SO FAR AS RELEVANT HERE: 

"(A)  THE BUSINESS OF INSURANCE, AND EVERY PERSON ENGAGED THEREIN,
SHALL BE SUBJECT TO THE LAWS OF THE SEVERAL STATES WHICH RELATE TO THE
REGULATION OR TAXATION OF SUCH BUSINESS." 

FN2  14 VERNON'S TEX. CIV. STAT., 1952 (CUM. SUPP. 1961), ART. 21.38,
SEC. 2(E) PROVIDES: 

"IF ANY PERSON, FIRM, ASSOCIATION OR CORPORATION SHALL PURCHASE FROM
AN INSURER NOT LICENSED IN THE STATE OF TEXAS A POLICY OF INSURANCE
COVERING RISKS WITHIN THIS STATE IN A MANNER OTHER THAN THROUGH AN
INSURANCE AGENT LICENSED AS SUCH UNDER THE LAWS OF THE STATE OF TEXAS,
SUCH PERSON, FIRM, ASSOCIATION OR CORPORATION SHALL PAY TO THE BOARD A
TAX OF FIVE PER CENT (5%) OF THE AMOUNT OF THE GROSS PREMIUMS PAID BY
SUCH INSURED FOR SUCH INSURANCE.  SUCH TAX SHALL BE PAID NOT LATER THAN
THIRTY (30) DAYS FROM THE DATE ON WHICH SUCH PREMIUM IS PAID TO THE
UNLICENSED INSURER." 

FN3  SUPRA, NOTE 1. 

FN4  AS WE STATED IN PRUDENTIAL INS. CO. V. BENJAMIN, SUPRA, AT 434: 

"THE POWER OF CONGRESS OVER COMMERCE EXERCISED ENTIRELY WITHOUT
REFERENCE TO COORDINATED ACTION OF THE STATES IS NOT RESTRICTED, EXCEPT
AS THE CONSTITUTION EXPRESSLY PROVIDES, BY ANY LIMITATION WHICH FORBIDS
IT TO DISCRIMINATE AGAINST INTERSTATE COMMERCE AND IN FAVOR OF LOCAL
TRADE.  ITS PLENARY SCOPE ENABLES CONGRESS NOT ONLY TO PROMOTE BUT ALSO
TO PROHIBIT INTERSTATE COMMERCE, AS IT HAS DONE FREQUENTLY AND FOR A
GREAT VARIETY OF REASONS.  THAT POWER DOES NOT RUN DOWN A ONE-WAY
STREET OR ONE OF NARROWLY FIXED DIMENSIONS.  CONGRESS MAY KEEP THE WAY
OPEN, CONFINE IT BROADLY OR CLOSELY, OR CLOSE IT ENTIRELY, SUBJECT ONLY
TO THE RESTRICTIONS PLACED UPON ITS AUTHORITY BY OTHER CONSTITUTIONAL
PROVISIONS AND THE REQUIREMENT THAT IT SHALL NOT INVADE THE DOMAINS OF
ACTION RESERVED EXCLUSIVELY FOR THE STATES." 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

IN HOLDING THAT THE MCCARRAN-FERGUSON ACT WITHDREW FROM THE STATES
THE POWER TO TAX THE OWNERSHIP AND USE OF INSURANCE POLICIES ON
PROPERTY LOCATED WITHIN THEIR BORDERS MERELY BECAUSE THOSE POLICIES
WERE MADE BY REPRESENTATIVES OF THE INSURER AND THE INSURED IN ANOTHER
STATE, I THINK THE COURT PLACES AN UNWARRANTED CONSTRUCTION UPON THAT
ACT WHICH MAY SERIOUSLY IMPAIR THE CAPACITY OF TEXAS AND OTHER STATES
TO PROVIDE AND ENFORCE EFFECTIVE REGULATION OF THE INSURANCE BUSINESS. 
THE TEXAS STATUTE HELD INVALID WAS ENACTED BY THE STATE LEGISLATURE IN
1957 IN ORDER TO PROTECT THE STATE'S COMPREHENSIVE SUPERVISION OF
INSURANCE COMPANIES AND THEIR POLICIES FROM BEING UNDERCUT BY THE
PRACTICE OF INSURING TEXAS PROPERTY WITH INSURANCE COMPANIES NOT
AUTHORIZED TO DO BUSINESS IN THAT STATE.  PRIOR TO 1957, THE WHOLE COST
OF THE TEXAS PROGRAM HAD BEEN PLACED UPON THOSE INSURANCE COMPANIES
WHICH HAD SUBJECTED THEMSELVES TO TEXAS REGULATION AND TAXATION BY
QUALIFYING TO DO BUSINESS IN THE STATE.  THE 1957 STATUTE WAS PASSED
FOR THE EXPRESS PURPOSE OF EQUALIZING THAT BURDEN BY PLACING A TAX UPON
THE PURCHASERS OF UNREGULATED INSURANCE ROUGHLY EQUAL TO THAT IMPOSED
DIRECTLY UPON REGULATED COMPANIES.  IN THIS WAY THE STATE TRIED TO
PROTECT ITS QUALIFIED AND REGULATED COMPANIES FROM UNFAIR COMPETITION
BY COMPANIES WHICH COULD SELL INSURANCE ON TEXAS PROPERTY CHEAPER
BECAUSE THEY DID NOT HAVE TO PAY THEIR PART OF THE COST OF THE TEXAS
INSURANCE REGULATION PROGRAM.  THE COURT'S CONSTRUCTION OF THE MCCARRAN
FERGUSON ACT BARS TEXAS FROM PROVIDING THIS SORT OF PROTECTION TO
REGULATED COMPANIES.  THIS HOLDING SEEMS TO ME TO THREATEN THE WHOLE
FOUNDATION OF THE TEXAS REGULATORY PROGRAM FOR IT PLAINLY ENCOURAGES
TEXAS RESIDENTS TO INSURE THEIR PROPERTY WITH UNREGULATED COMPANIES AND
DISCOURAGES OUT-OF-STATE COMPANIES FROM QUALIFYING TO DO BUSINESS IN
AND SUBJECTING THEMSELVES TO REGULATION AND TAXATION BY THE STATE OF
TEXAS. 

I CANNOT BELIEVE THAT AN ACT WHICH WAS BASICALLY DESIGNED TO LEAVE
THE POWER TO REGULATE AND TAX INSURANCE COMPANIES TO THE STATES WAS
INTENDED TO HAVE ANY SUCH EFFECT.  THE MCCARRAN-FERGUSON ACT "DECLARES
THAT THE CONTINUED REGULATION AND TAXATION BY THE SEVERAL STATES OF THE
BUSINESS OF INSURANCE IS IN THE PUBLIC INTEREST, AND THAT SILENCE ON
THE PART OF THE CONGRESS SHALL NOT BE CONSTRUED TO IMPOSE ANY BARRIER
TO THE REGULATION OR TAXATION OF SUCH BUSINESS BY THE SEVERAL STATES" -
A DECLARATION WHICH IS NOT QUALIFIED BY ANY OTHER LANGUAGE OF THE ACT. 
NOTHING IN THE LEGISLATIVE HISTORY WHICH THE COURT RELIES UPON
PERSUADES ME THAT WE SHOULD READ THIS ACT IN A WAY WHICH SO SERIOUSLY
IMPAIRS THE POWER OF THE STATES TO DISCHARGE THEIR RESPONSIBILITIES
UNDER THE ACT TO PROVIDE A COMPREHENSIVE, EFFECTIVE, WELL-INTEGRATED
PROGRAM FOR REGULATING INSURANCE ON PROPERTY WITHIN THEIR BORDERS.  I
THINK THE MCCARRAN-FERGUSON ACT LEFT TEXAS WITH ADEQUATE POWER TO PLACE
A TAX ON THE OWNERSHIP AND USE OF INSURANCE POLICIES COVERING THE VAST
PROPERTIES OWNED AND OPERATED BY THIS RESPONDENT IN TEXAS, AND I
THEREFORE DISSENT. 
..END :



UNITED STATES V. BORDEN CO. 370 U.S. 460 


NO. 439.  ARGUED APRIL 24-25, 1962 - DECIDED JUNE 25, 1962 - REVERSED
AND REMANDED. 


THE GOVERNMENT BROUGHT THIS SUIT TO ENJOIN APPELLEES FROM SELLING
FLUID MILK IN THE CHICAGO AREA AT PRICES WHICH DISCRIMINATE BETWEEN
INDEPENDENTLY OWNED GROCERY STORES AND GROCERY STORE CHAINS, IN
VIOLATION OF SEC. 2(A) OF THE CLAYTON ACT.  THE DISTRICT COURT FOUND
THAT THE PRICING PLAN OF EACH APPELLEE WAS A PRIMA FACIE VIOLATION OF
SEC. 2(A); BUT IT CONCLUDED THAT THESE DISCRIMINATORY PRICES WERE
JUSTIFIED UNDER THE PROVISO OF SEC. 2(A) WHICH PERMITS PRICE
DIFFERENTIALS WHICH MAKE ONLY "DUE ALLOWANCE FOR DIFFERENCES IN THE
COST OF MANUFACTURE, SALE, OR DELIVERY."  IN DOING SO, IT RELIED UPON A
SHOWING BY APPELLEES THAT THE AVERAGE COST OF SALES AND DELIVERIES TO
ALL CHAIN STORES WAS LOWER THAN THE AVERAGE COST OF SALES AND
DELIVERIES TO ALL INDEPENDENT STORES.  HELD:  THE CLASS COST
JUSTIFICATIONS SUBMITTED TO THE DISTRICT COURT BY APPELLEES DID NOT
SATISFY THEIR BURDEN UNDER SEC. 2(B) OF SHOWING THAT THEIR RESPECTIVE
DISCRIMINATORY PRICING PLANS REFLECTED ONLY A "DUE ALLOWANCE" FOR
ACTUAL COST DIFFERENCES, SINCE THERE WAS NOT A SUFFICIENT RESEMBLANCE
OF THE INDIVIDUAL MEMBERS OF EACH CLASS IN THE ESSENTIAL COST
DETERMINATIVE FACTORS ON WHICH THE CLASSIFICATIONS WERE BASED.  PP. 461
472. 

?4 UNITED STATES V. BORDEN COMPANY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL (FN1) FROM A JUDGMENT DISMISSING THE
GOVERNMENT'S SECTION 2(A) CLAYTON ACT (FN2) SUIT IN WHICH IT SOUGHT AN
INJUNCTION AGAINST THE SELLING OF FLUID MILK PRODUCTS BY THE APPELLEES,
THE BORDEN COMPANY AND BOWMAN DAIRY COMPANY, AT PRICES WHICH
DISCRIMINATE BETWEEN INDEPENDENTLY OWNED GROCERY STORES AND GROCERY
STORE CHAINS.  THE DISTRICT COURT IN AN UNREPORTED DECISION FOUND THE
PRICING PLAN OF EACH DAIRY TO BE A PRIMA FACIE VIOLATION OF SEC. 2(A)
BUT CONCLUDED THAT THESE DISCRIMINATORY PRICES WERE LEGALIZED BY THE
COST JUSTIFICATION PROVISO OF SEC. 2(A), WHICH PERMITS PRICE
DIFFERENTIALS AS LONG AS THEY "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."  TO REVIEW THE GOVERNMENT'S CONTENTION
THAT THE DISTRICT COURT HAD IMPROPERLY PERMITTED COST JUSTIFICATIONS
BASED ON THE AVERAGE COST OF DEALING WITH BROAD GROUPS OF CUSTOMERS
UNRELATED IN COST-SAVING FACTORS, (FN3) WE NOTED PROBABLE JURISDICTION,
368 U.S. 924, AND DIRECTED THE PARTIES TO BRIEF AND ARGUE THE CASE
SEPARATELY AS TO EACH APPELLEE, 368 U.S. 963.  HOWEVER, FINDING THE
SAME PROBLEM AT THE ROOT OF THE COST JUSTIFICATIONS OF EACH APPELLEE,
WE HAVE DEALT WITH BOTH IN THIS SINGLE OPINION.  WE HAVE CONCLUDED THAT
THE CLASS COST JUSTIFICATIONS SUBMITTED TO THE DISTRICT COURT BY THE
APPELLEES DID NOT SATISFY THEIR BURDEN OF SHOWING THAT THEIR RESPECTIVE
DISCRIMINATORY PRICING PLANS REFLECTED ONLY A "DUE ALLOWANCE" FOR COST
DIFFERENCES. 

BY WAY OF BACKGROUND, WE FIRST POINT OUT THAT THE PRESENT APPEAL IS
MERELY A GLIMPSE OF PROTRACTED LITIGATION BETWEEN THE PARTIES WHICH
BEGAN IN 1951 AND WHICH HAS NOT YET SEEN ITS END.  THE ORIGINAL
COMPLAINT CHARGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT AND
SEC. 2(A) OF THE CLAYTON ACT.  THE DISTRICT COURT DISMISSED THE SUIT,
HOLDING THAT THERE WAS NO PROOF OF THE ALLEGED SHERMAN ACT VIOLATIONS
AND THAT NO EQUITABLE RELIEF WAS NECESSARY UNDER THE CLAYTON ACT CHARGE
BECAUSE APPELLEES WERE ALREADY RESTRAINED BY A CONSENT DECREE ENTERED
IN A PRIVATE ANTITRUST CASE.  111 F. SUPP. 562.  ON DIRECT APPEAL WE
AFFIRMED THE DISMISSAL OF THE SHERMAN ACT CHARGES BUT HELD ERRONEOUS
THE REFUSAL TO GRANT AN INJUNCTION ON THE CLAYTON ACT CLAIM SOLELY
BECAUSE OF THE EXISTENCE OF THE PRIVATE DECREE.  347 U.S. 514.  ON
REMAND THE CASE WAS REOPENED AND ON ITS PRIMA FACIE CASE THE GOVERNMENT
INTRODUCED RECENT GENERAL PRICE SCHEDULES AND ILLUSTRATED THEIR EFFECT
ON SAMPLE STORES TO SHOW THAT EACH APPELLEE WAS STILL ENGAGED IN
ILLEGAL PRICE DISCRIMINATIONS NOTWITHSTANDING THE CONSENT DECREE.   IN
DEFENSE THE APPELLEES EACH INTRODUCED VOLUMINOUS COST STUDIES IN
JUSTIFICATION OF THEIR PRICING SYSTEMS.  THE ENTIRE CASE WAS SUBMITTED
VIA STIPULATIONS, DEPOSITIONS, AND BRIEFS.  THERE WAS NO DISPUTE AS TO
THE EXISTENCE OF PRICE DISCRIMINATION; THE SOLE QUESTION WAS WHETHER
THE DIFFERENCES IN PRICE REFLECTED PERMISSIBLE ALLOWANCES FOR VARIANCES
IN COST. 

IN VIEW OF OUR DISPOSITION, WE NEED NOT RELATE THE FACTS IN DETAIL. 
BOTH APPELLEES ARE MAJOR DISTRIBUTORS OF FLUID MILK PRODUCTS IN
METROPOLITAN CHICAGO.  THE SALES OF BOTH DAIRIES TO RETAIL STORES
DURING THE PERIOD IN QUESTION WERE HANDLED UNDER PLANS WHICH GAVE MOST
OF THEIR CUSTOMERS - THE INDEPENDENTLY OWNED STORES - PERCENTAGE
DISCOUNTS OFF LIST PRICE WHICH INCREASED WITH THE VOLUME OF THEIR
PURCHASES TO A SPECIFIED MAXIMUM WHILE GRANTING A FEW CUSTOMERS - THE
GROCERY STORE CHAINS - A FLAT DISCOUNT WITHOUT REFERENCE TO VOLUME AND
SUBSTANTIALLY GREATER THAN THE MAXIMUM DISCOUNT AVAILABLE UNDER THE
VOLUME PLAN OFFERED INDEPENDENT STORES.  THESE DISCOUNTS WERE MADE
EFFECTIVE THROUGH SCHEDULES WHICH APPEARED TO COVER ALL STORES;
HOWEVER, THE SCHEDULES WERE MODIFIED BY PRIVATE LETTERS TO THE GROCERY
CHAINS CONFIRMING THEIR HIGHER DISCOUNTS.  (FN4)  ALTHOUGH THE TWO SETS
OF DISCOUNTS WERE NEVER OFFICIALLY LABELED "INDEPENDENT" AND "CHAIN"
PRICES, THEY WERE TREATED, CALLED, AND REGARDED AS SUCH THROUGHOUT THE
RECORD. 

TO SUPPORT THEIR DEFENSE THAT THE DISPARITIES IN PRICE BETWEEN
INDEPENDENTS AND CHAINS WERE ATTRIBUTABLE TO DIFFERENCES IN THE COST OF
DEALING WITH THE TWO TYPES OF CUSTOMERS, THE APPELLEES INTRODUCED COST
STUDIES WHICH WILL BE DESCRIBED SEPARATELY BECAUSE OF THEIR DIFFERING
CONTENT AND ANALYTICAL APPROACH. 

THE BORDEN PRICING SYSTEM PRODUCED TWO CLASSES OF CUSTOMERS.  THE TWO
CHAINS, A&P AND JEWEL, WITH THEIR COMBINED TOTAL OF 254 STORES
CONSTITUTED ONE CLASS.  THE 1,322 INDEPENDENT STORES, GROUPED IN FOUR
BRACKETS BASED ON THE VOLUME OF THEIR PURCHASES, MADE UP THE OTHER. 
BORDEN'S COST JUSTIFICATION WAS BUILT ON COMPARISONS OF ITS AVERAGE
COST PER $100 OF SALES TO THE CHAINS IN RELATION TO THE AVERAGE COST OF
SIMILAR SALES TO EACH OF THE FOUR GROUPS OF INDEPENDENTS.  THE COSTS
CONSIDERED WERE PERSONNEL (INCLUDING ROUTEMEN, CLERICAL AND SALES
EMPLOYEES), TRUCK EXPENSES, AND LOSSES ON BAD DEBTS AND RETURNED MILK. 
VARIOUS METHODS OF COST ALLOCATION WERE UTILIZED:  DRIVERS' TIME SPENT
AT EACH STORE WAS CHARGED DIRECTLY TO THAT STORE; CERTAIN CLERICAL
EXPENSES WERE ALLOCATED BETWEEN THE TWO GENERAL CLASSES; COSTS NOT
SUSCEPTIBLE OF EITHER OF THE FOREGOING WERE CHARGED TO THE VARIOUS
STORES ON A PER STOP, PER STORE, OR VOLUME BASIS. 

BOWMAN'S COST JUSTIFICATION WAS BASED ON DIFFERENCES IN VOLUME AND
METHODS OF DELIVERY.  IT RELIED HEAVILY UPON A STUDY OF THE COST PER
MINUTE OF ITS ROUTEMEN'S TIME.  IT DETERMINED THAT SUBSTANTIAL PORTIONS
OF THIS TIME WERE DEVOTED TO THREE OPERATIONS, NONE OF WHICH WERE EVER
PERFORMED FOR THE 163 STORES OPERATED BY ITS TWO MAJOR CHAIN
CUSTOMERS.  (FN5)  THESE ADDED WORK STEPS AROSE FROM THE METHOD OF
COLLECTION, I.E., CASH ON DELIVERY AND THE DELAYED COLLECTIONS
CONNECTED THEREWITH, AND THE PERFORMANCE OF "OPTIONAL CUSTOMER
SERVICES."  THE CUSTOMER SERVICES, PERFORMED WITH VARYING FREQUENCY
DEPENDING UPON THE CIRCUMSTANCES, INCLUDED "SERVICES THAT THE DRIVER
MAY BE REQUESTED TO DO, SUCH AS DELIVER THE ORDER INSIDE, PLACE THE
CONTAINERS IN A REFRIGERATOR, REARRANGE CONTAINERS SO THAT ANY PRODUCT
REMAINING UNSOLD FROM YESTERDAY WILL BE SOLD FIRST TODAY, LEAVE CASES
OF PRODUCTS AT DIFFERENT SPOTS IN THE STORE, ETC."  THE EXPERTS
CONDUCTING THE STUDY CALCULATED AS TO THESE ELEMENTS A "STANDARD" COST
PER UNIT OF PRODUCT DELIVERED:  THE AGGREGATE TIME REQUIRED TO PERFORM
THE SERVICES, AS DETERMINED BY SAMPLE TIME STUDIES, WAS DIVIDED BY THE
TOTAL NUMBER OF UNITS OF PRODUCT DELIVERED.  IN ESSENCE, THE BOWMAN
JUSTIFICATION WAS MERELY A COMPARISON OF THE COST OF THESE SERVICES IN
RELATION TO THE DISPARITY BETWEEN THE CHAIN AND INDEPENDENT PRICES. 
ALTHOUGH IT WAS SHOWN THAT THE FIVE SAMPLE INDEPENDENTS IN THE
GOVERNMENT'S PRIMA FACIE CASE RECEIVED THE ADDED SERVICES, (FN6) IT WAS
NOT SHOWN OR FOUND THAT ALL 2,500 INDEPENDENTS SUPPLIED BY BOWMAN
PARTOOK OF THEM.  ON THE BASIS OF ITS STUDIES BOWMAN ESTIMATED THAT
ABOUT TWO-THIRDS OF THE INDEPENDENT STORES RECEIVED THE "OPTIONAL
CUSTOMER SERVICES" ON A DAILY BASIS AND THAT "MOST STORE CUSTOMERS PAY
THE DRIVER IN CASH DAILY." 

ON THESE FACTS, STATED HERE IN RATHER SUMMARY FASHION, THE TRIAL
COURT HELD THAT APPELLEES HAD MET THE REQUIREMENTS OF THE PROVISO OF
SEC. 2(A) ON THE THEORY THAT THE GENERAL COST DIFFERENCES BETWEEN CHAIN
STORES AS A CLASS AND INDEPENDENTS AS A CLASS JUSTIFIED THE DISPARITIES
IN PRICE REFLECTED IN APPELLEES' SCHEDULES.  IN SO DOING THE TRIAL
COURT ITSELF FOUND "THE STUDIES  ...  IMPERFECT IN SOME RESPECTS  ...
."  IT NOTED THE "SEEMINGLY ARBITRARY" NATURE OF A CLASSIFICATION
RESULTING "IN PERCENTAGE DISCOUNTS WHICH DO NOT BEAR A DIRECT RATIO TO
DIFFERENCES IN VOLUME OF SALES."  BUT IT FOUND "THIS MODE OF
CLASSIFICATION IS NOT WHOLLY ARBITRARY - AFTER ALL, MOST CHAIN STORES
DO PURCHASE LARGER VOLUMES OF MILK THAN DO MOST INDEPENDENT STORES." 
(FN7)  WE BELIEVE IT WAS ERRONEOUS FOR THE TRIAL COURT TO PERMIT COST
JUSTIFICATIONS BASED UPON SUCH CLASSIFICATIONS. 

THE BURDEN, OF COURSE, WAS UPON THE APPELLEES TO PROVE THAT THE
ILLEGAL PRICE DISCRIMINATION, WHICH THE GOVERNMENT CLAIMED AND THE
TRIAL COURT FOUND PRESENT, WAS IMMUNIZED BY THE COST JUSTIFICATION
PROVISO OF SEC. 2(A).  SUCH IS THE MANDATE OF SEC. 2(B) AS INTERPRETED
BY THIS COURT IN FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37,
44-45 (1948).  (FN8)  THERE CAN BE NO DOUBT THAT THE SEC. 2(A) PROVISO
AS AMENDED BY THE ROBINSON-PATMAN ACT CONTEMPLATES, BOTH IN EXPRESS
WORDING AND LEGISLATIVE HISTORY, A SHOWING OF ACTUAL COST DIFFERENCES
RESULTING FROM THE DIFFERING METHODS OR QUANTITIES IN WHICH THE
COMMODITIES IN QUESTION ARE SOLD OR DELIVERED.  (FN9)  THE ONLY
QUESTION BEFORE US IS HOW ACCURATE THIS SHOWING MUST BE IN RELATION TO
EACH PARTICULAR PURCHASER. 

ALTHOUGH THE LANGUAGE OF THE PROVISO, WITH SOME SUPPORT IN THE
LEGISLATIVE HISTORY, (FN10) IS LITERALLY SUSCEPTIBLE OF A CONSTRUCTION
WHICH WOULD REQUIRE ANY DISCREPANCY IN PRICE BETWEEN ANY TWO PURCHASERS
TO BE INDIVIDUALLY JUSTIFIED, THE PROVISO HAS NOT BEEN SO CONSTRUED BY
THOSE CHARGED WITH ITS ENFORCEMENT.  THE GOVERNMENT CANDIDLY RECOGNIZES
IN ITS BRIEFS FILED IN THE INSTANT CASE THAT "AS A MATTER OF PRACTICAL
NECESSITY  ...  WHEN A SELLER DEALS WITH A VERY LARGE NUMBER OF
CUSTOMERS, HE CANNOT BE REQUIRED TO ESTABLISH DIFFERENT COST-REFLECTING
PRICES FOR EACH CUSTOMER."  IN THIS SAME VEIN, THE PRACTICE OF GROUPING
CUSTOMERS FOR PRICING PURPOSES HAS LONG HAD THE APPROVAL OF THE FEDERAL
TRADE COMMISSION.  (FN11)  WE OURSELVES HAVE NOTED THE "ELUSIVENESS OF
COST DATA" IN A ROBINSON-PATMAN ACT PROCEEDING.  AUTOMATIC CANTEEN CO.
V. FEDERAL TRADE COMM'N, 346 U.S. 61, 68 (1953).  IN SHORT, TO
COMPLETELY RENOUNCE CLASS PRICING AS JUSTIFIED BY CLASS ACCOUNTING
WOULD BE TO ELIMINATE IN PRACTICAL EFFECT THE COST JUSTIFICATION
PROVISO AS TO SELLERS HAVING A LARGE NUMBER OF PURCHASERS, THEREBY
PREVENTING SUCH SELLERS FROM PASSING ON ECONOMIES TO THEIR CUSTOMERS. 
IT SEEMS HARDLY NECESSARY TO SAY THAT SUCH A RESULT IS AT WAR WITH
CONGRESS' LANGUAGE AND PURPOSE. 

BUT THIS IS NOT TO SAY THAT PRICE DIFFERENTIALS CAN BE JUSTIFIED ON
THE BASIS OF ARBITRARY CLASSIFICATIONS OR EVEN CLASSIFICATIONS WHICH
ARE REPRESENTATIVE OF A NUMERICAL MAJORITY OF THE INDIVIDUAL MEMBERS. 
AT SOME POINT PRACTICAL CONSIDERATIONS SHADE INTO A CIRCUMVENTION OF
THE PROVISO.  A BALANCE IS STRUCK BY THE USE OF CLASSES FOR COST
JUSTIFICATION WHICH ARE COMPOSED OF MEMBERS OF SUCH SELFSAMENESS AS TO
MAKE THE AVERAGING OF THE COST OF DEALING WITH THE GROUP A VALID AND
REASONABLE INDICIUM OF THE COST OF DEALING WITH ANY SPECIFIC GROUP
MEMBER.  (FN12)  HIGH ON THE LIST OF "MUSTS" IN THE USE OF THE AVERAGE
COST OF CUSTOMER GROUPINGS UNDER THE PROVISO OF SEC. 2(A) IS A CLOSE
RESEMBLANCE OF THE INDIVIDUAL MEMBERS OF EACH GROUP ON THE ESSENTIAL
POINT OR POINTS WHICH DETERMINE THE COSTS CONSIDERED. 

IN THIS REGARD WE DO NOT FIND THE CLASSIFICATIONS SUBMITTED BY THE
APPELLEES TO HAVE BEEN SHOWN TO BE OF SUFFICIENT HOMOGENEITY. 
CERTAINLY, THE COST FACTORS CONSIDERED WERE NOT NECESSARILY ENCOMPASSED
WITHIN THE MANNER IN WHICH A CUSTOMER IS OWNED.  TURNING FIRST TO
BORDEN'S JUSTIFICATION, WE NOTE THAT IT NOT ONLY FAILED TO SHOW THAT
THE ECONOMIES RELIED UPON WERE ISOLATED WITHIN THE FAVORED CLASS BUT
AFFIRMATIVELY REVEALED THAT MEMBERS OF THE CLASSES UTILIZED WERE
SUBSTANTIALLY UNLIKE IN THE COST SAVING ASPECTS CONSIDERED.  FOR
INSTANCE, THE FAVORABLE COST COMPARISONS BETWEEN THE CHAINS AND THE
LARGER INDEPENDENTS WERE FOR THE GREATER PART CONTROLLED BY THE HIGHER
AVERAGE VOLUME OF THE CHAIN STORES IN COMPARISON TO THE AVERAGE VOLUME
OF THE 80-MEMBER CLASS TO WHICH THESE INDEPENDENTS WERE RELEGATED.  THE
DISTRICT COURT ALLOWED THIS MANNER OF JUSTIFICATION BECAUSE "MOST CHAIN
STORES DO PURCHASE LARGER VOLUMES OF MILK THAN DO MOST INDEPENDENT
STORES."  HOWEVER, SUCH A GROUPING FOR COST JUSTIFICATION PURPOSES,
COMPOSED AS IT IS OF SOME INDEPENDENTS HAVING VOLUMES COMPARABLE TO,
AND IN SOME CASES LARGER THAN, THAT OF THE CHAIN STORES, CREATED
ARTIFICIAL DISPARITIES BETWEEN THE LARGER INDEPENDENTS AND THE CHAIN
STORES.  IT IS LIKE AVERAGING ONE HORSE AND ONE RABBIT.  AS THE FEDERAL
TRADE COMMISSION SAID IN IN THE MATTER OF CHAMPION SPARK PLUG CO., 50
F.T.C. 30, 43 (1953):  "A COST JUSTIFICATION BASED ON THE DIFFERENCE
BETWEEN AN ESTIMATED AVERAGE COST OF SELLING TO ONE OR TWO LARGE
CUSTOMERS AND AN AVERAGE COST OF SELLING TO ALL OTHER CUSTOMERS CANNOT
BE ACCEPTED AS A DEFENSE TO A CHARGE OF PRICE DISCRIMINATION."   THIS
VOLUME GAP BETWEEN THE LARGER INDEPENDENTS AND THE CHAIN STORES WAS
FURTHER WIDENED BY GROUPING TOGETHER THE TWO CHAINS, THEREBY RAISING
THE AVERAGE VOLUME OF THE STORES OF THE SMALLER OF THE TWO CHAINS IN
RELATION TO THE LARGER INDEPENDENTS.  NOR IS THE VICE IN THE BORDEN
CLASS JUSTIFICATION SOLELY IN THE PAPER VOLUMES RELIED UPON, FOR IT
ATTRIBUTED TO MANY INDEPENDENTS COST FACTORS WHICH WERE NOT TRUE
INDICIA OF THE COST OF DEALING WITH THOSE PARTICULAR CONSUMERS.  TO
ILLUSTRATE, EACH INDEPENDENT WAS ASSIGNED A PORTION OF THE TOTAL
EXPENSES INVOLVED IN DAILY CASH COLLECTIONS, ALTHOUGH IT WAS NOT SHOWN
THAT ALL INDEPENDENTS PAID CASH AND IN FACT BORDEN ADMITTED ONLY THAT A
"LARGE MAJORITY" DID SO. 

LIKEWISE THE DETAILS OF BOWMAN'S COST STUDY SHOW A FAILURE IN
CLASSIFICATION.  ONLY ONE ADDITIONAL POINT NEED BE MADE.  ITS
JUSTIFICATION EMPHASIZED ITS COSTS FOR "OPTIONAL CUSTOMER SERVICE" AND
DAILY CASH COLLECTION WITH THE RESULTING "DELAY TO COLLECT."  AS SHOWN
BY ITS STUDY THESE ELEMENTS WERE CRUCIAL TO BOWMAN'S COST
JUSTIFICATION.  IN THE STUDY THE EXPERTS CHARGED ALL INDEPENDENTS AND
NO CHAIN STORE WITH THESE COSTS.  YET, IT WAS NOT SHOWN THAT ALL
INDEPENDENTS RECEIVED THESE SERVICES DAILY OR EVEN ON SOME LESSER
BASIS.  BOWMAN'S STUDIES INDICATED ONLY THAT A LARGE MAJORITY OF
INDEPENDENTS TOOK THESE SERVICES ON A DAILY BASIS.  UNDER SUCH
CIRCUMSTANCES THE USE OF THESE COST FACTORS ACROSS THE BOARD IN
CALCULATING INDEPENDENT STORE COSTS IS NOT A PERMISSIBLE JUSTIFICATION,
FOR IT POSSIBLY ALLOCATES COSTS TO SOME INDEPENDENTS WHOSE MODE OF
PURCHASING DOES NOT GIVE RISE TO THEM.  THE BURDEN WAS UPON THE
PROFFERER OF THE CLASSIFICATION TO NEGATE THIS POSSIBILITY, AND THIS
BURDEN HAS NOT BEEN MET HERE.  IF THESE FACTORS CONTROL THE COST OF
DEALING, THEN THEIR PRESENCE OR ABSENCE MIGHT WITH MORE JUSTIFICATION
BE THE PASSWORD FOR ADMISSION INTO THE VARIOUS PRICE CATEGORIES. 
(FN13) 

THE APPELLEES ARGUE IN THE ALTERNATIVE THAT THEIR COST JUSTIFICATIONS
CAN BE SUFFICIENTLY UNSCRAMBLED TO REMOVE ANY TAINT THE COURT MAY FIND
IN THEM AND STILL SHOW A COST GAP SUFFICIENT TO JUSTIFY THE PRICE
DISPARITY BETWEEN THE CHAINS AND ANY INDEPENDENT.  THIS MASS OF
UNDERLYING STATISTICAL DATA NOT CONSIDERED BY THE TRIAL COURT AND NOW
TIED TOGETHER BY UNTRIED THEORIES CAN BEST BE EVALUATED ON REMAND, AND
WE THEREFORE DO NOT CONSIDER ITS SUFFICIENCY HERE. 

IN SUM, THE RECORD HERE SHOWS THAT PRICE DISCRIMINATIONS HAVE BEEN
PERMITTED ON THE BASIS OF COST DIFFERENCES BETWEEN BROAD CUSTOMER
GROUPINGS, APPARENTLY BASED ON THE NATURE OF OWNERSHIP BUT IN ANY EVENT
NOT SHOWN TO BE SO HOMOGENEOUS AS TO PERMIT THE JOINING TOGETHER OF
THESE PURCHASERS FOR COST ALLOCATIONS PURPOSES.  IF THIS IS THE ONLY
JUSTIFICATION FOR APPELLEES' PRICING SCHEMES, THEY ARE ILLEGAL.  WE DO
NOT BELIEVE THAT AN APPROPRIATE DECREE WOULD REQUIRE THE TRIAL COURT
CONTINUOUSLY TO "PASS JUDGMENT ON THE PRICING PRACTICES OF THESE
DEFENDANTS."  AS TO THE ISSUANCE OF AN INJUNCTION, HOWEVER, THE CASE IS
NOW 11 YEARS OLD AND WE HAVE NO WAY OF KNOWING WHETHER EQUITABLE RELIEF
IS IN ORDER.  CERTAINLY A RELEVANT FACTOR IN SUCH CONSIDERATION WOULD
BE WHETHER THE PRACTICES DESCRIBED ABOVE ARE STILL BEING FOLLOWED IN
ANY FORM.  THIS THE RECORD HERE DOES NOT SHOW.  SUCH MATTERS CAN ONLY
BE ASCERTAINED UPON THE PRESENTLY EXISTING FACTS AND THE CAREFUL
APPLICATION OF THE PRINCIPLES WE HAVE ENUNCIATED.  FOR THAT PURPOSE THE
CASE IS REVERSED AND REMANDED. 

FN1  JURISDICTION IS CONFERRED UNDER SEC. 2 OF THE EXPEDITING ACT OF
FEBRUARY 11, 1903, 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29. 

FN2  "SEC.  2.  (A) THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED
IN COMMERCE, IN THE COURSE OF SUCH COMMERCE,  ...  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,  ...  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  ...  ."  38 STAT. 730, AS AMENDED, 49 STAT. 1526, 15 U.S.C.
SEC. 13(A). 

FN3  BOWMAN'S CONTENTION THAT THE GOVERNMENT BY STIPULATION LIMITED
ITSELF TO SPECIFIC OBJECTIONS WHICH DO NOT INCLUDE THE PRESENT ONE IS
WITHOUT FOUNDATION IN THE RECORD.  AT THE TIME THE STIPULATION WAS
PROPOSED, THE TRIAL COURT MADE IT QUITE CLEAR THAT THE GOVERNMENT BY SO
STIPULATING WAS NOT WAIVING ITS RIGHT TO ARGUE THE LEGAL SUFFICIENCY OF
THE PROFFERED COST STUDIES. 

FN4  BORDEN IN JUNE OF 1954 ISSUED THE FOLLOWING DISCOUNT SCHEDULE TO
"BE APPLIED TO ALL PURCHASES OF BORDEN'S FRESH MILK": 

AVERAGE CONVERTED UNITS PER DAY:
PERCENT OF DISCOUNTS

        0- 24                                0

       25- 74                                                  2

75-149     3

      150 AND OVER                       4 

AT THIS SAME TIME, LETTERS WERE SENT TO THE GREAT ATLANTIC AND
PACIFIC TEA COMPANY AND THE JEWEL FOOD STORES GRANTING THEM FLAT 8 1/2%
DISCOUNTS.  A FEW OF THE LARGER INDEPENDENTS BY SPECIAL ARRANGEMENT
WERE GIVEN AN ADDITIONAL 1 1/2% DISCOUNT, THEREBY RAISING THEIR TOTAL
DISCOUNT TO 5 1/2%. 

IN SEPTEMBER 1955, BORDEN DISCONTINUED THE ABOVE DISCOUNT SYSTEM AND
UTILIZED A NET PRICE SCHEME WHICH RESULTED IN EVEN GREATER DISPARITIES
BETWEEN CHAINS AND INDEPENDENTS. 

BOWMAN IN JUNE OF 1954 OPERATED UNDER THE FOLLOWING "RESALE STORE
DISCOUNT SCHEDULE": 

AVERAGE CONVERTED POINTS PER DAY:
PERCENT OF DISCOUNTS

0 TO  10                                                    3.0 TO 3.4

       10 TO  20                   3.4 TO 3.8

       20 TO  30                                        3.8 TO 4.2

       30 TO  40
4.2 TO 4.6

       40 TO  50                   4.6 TO 5.0

       50 TO  60                                        5.0 TO 5.2

       60 TO  70
5.2 TO 5.4

       70 TO  80                   5.4 TO 5.6

       80 TO  90                                        5.6 TO 5.8

       90 TO 100
5.8 TO 6.0

      100 TO 110                   6.0 TO 6.2

      110 TO 120                                        6.2 TO 6.4

      120 TO 130
6.4 TO 6.6

      130 TO 140                   6.6 TO 6.8

      140 TO 150                                        6.8 TO 7.0 

THIS SCHEDULE WAS MODIFIED IN AUGUST BY THE ADDITION OF THE FOLLOWING
DISCOUNTS: 

AVERAGE CONVERTED POINTS PER DAY:                  PERCENT OF
DISCOUNTS

      150 TO 200
7.0 TO 8.0

    OVER 200       8.0 

DURING THIS SAME PERIOD BOWMAN BY LETTER GRANTED THE GREAT ATLANTIC
AND PACIFIC TEA COMPANY AND THE KROGER COMPANY FLAT 11% DISCOUNTS. 
GOLDBLATT BROS., ALSO A MULTI-STORE OPERATION, WAS GRANTED A FLAT 8
1/2%. 

IN 1955 AND AGAIN IN 1956 BOWMAN MODIFIED THE BRACKETS AND
PERCENTAGES OF ITS DISCOUNT SCHEDULES, BUT NOT IN A MANNER WHICH
REDUCED THE DISPARITY BETWEEN INDEPENDENTS AND CHAINS. 

FN5  THE THIRD CHAIN, GOLDBLATT BROS., ALSO DID NOT TAKE THESE
SERVICES. 

FN6  THE CONTENTION IS MADE THAT THE GOVERNMENT LIMITED ITS PRIMA
FACIE CASE TO A FEW STORES ON SOME ROUTES AND THAT THEREFORE COST
JUSTIFICATION WAS ONLY NECESSARY AS TO THEM.  THIS OVERLOOKS THE FACT
THAT SAMPLING HAS LONG BEEN A RECOGNIZED TECHNIQUE IN PRICE
DISCRIMINATION CASES AND THAT THIS OFFERING WAS IN SUPPORT OF THE
GOVERNMENT'S POSITION, FOUND VALID BY THE TRIAL COURT, THAT THE ENTIRE
CHICAGO PRICING SCHEME OF EACH APPELLEE, AS EVIDENCED BY ITS PUBLISHED
PRICE LISTS, WAS IN VIOLATION OF SEC. 2(A).  IN ADDITION, APPELLEE'S
COST JUSTIFICATIONS WERE NOT LIMITED TO THE GOVERNMENT'S SAMPLE
STORES. 

FN7  EVEN THE TRIAL COURT WAS UNWILLING TO GIVE ITS "STAMP OF
APPROVAL TO ALL PRICING POLICIES AND PRACTICES REVEALED BY THE
EVIDENCE."  BUT IT CONCLUDED THAT TO ENJOIN SUCH PRACTICES WOULD LEAD
TO REGULATION AND WOULD REQUIRE THE COURT CONTINUALLY "TO PASS JUDGMENT
ON THE PRICING PRACTICES OF THESE DEFENDANTS," A MATTER WHICH MIGHT
BETTER BE HANDLED BY PROCEEDINGS BEFORE THE FEDERAL TRADE COMMISSION. 

FN8  SEC. 2(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  ...  ."  49 STAT. 1526, 15
U.S.C.  SEC. 13(B). 

FN9  FOR A COLLECTION AND DISCUSSION OF THE PERTINENT LEGISLATIVE
HISTORY AS WELL AS THE CASES AND TREATISES ON THE SEC. 2(A) PROVISO,
SEE ROWE, PRICE DISCRIMINATION UNDER THE ROBINSON-PATMAN ACT, C. 10
(1962). 

FN10  FOR INSTANCE, THE CHAIRMAN OF THE CONFERENCE ON THE BILL
REPORTED TO THE HOUSE:  "THE DIFFERENTIAL GRANTED A PARTICULAR CUSTOMER
MUST BE TRACEABLE TO SOME DIFFERENCE BETWEEN HIM AND OTHER PARTICULAR
CUSTOMERS, EITHER IN THE QUANTITIES PURCHASED BY THEM OR IN THE METHODS
BY WHICH THEY ARE PURCHASED OR THEIR DELIVERY TAKEN."  80 CONG. REC.
9417 (1936). 

FN11  FOR A DISCUSSION OF THE COMMISSION'S POSITION IN THIS REGARD,
SEE ROWE, OP. CIT., SUPRA, NOTE 9, SEC. 10.6. 

FN12  ADVISORY COMMITTEE ON COST JUSTIFICATION, REPORT TO THE UNITED
STATES FEDERAL TRADE COMMISSION (1956), P. 8. 

FN13  ANOTHER SUSPECT FEATURE IS THAT CLASSIFICATIONS BASED ON
SERVICES RECEIVED BY INDEPENDENTS WERE APPARENTLY FROZEN - MAKING IT
IMPOSSIBLE FOR THEM TO OBTAIN LARGER DISCOUNTS BY ELECTING NOT TO
RECEIVE THE COST-DETERMINATIVE SERVICES - WITH NO JUSTIFIABLE BUSINESS
REASON OFFERED IN SUPPORT OF THE PRACTICE. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THIS IS NOT A CASE THAT INVOLVES PROBLEMS OF CENTRALIZED PURCHASING
BY A LARGE ENTERPRISE FOR ALL ITS CONSTITUENT MEMBERS, WHERE THE VOLUME
INVOLVED REDUCES THE UNIT COST.  WE HAVE HERE PURCHASES BY CONSTITUENT
MEMBERS OF CHAIN STORES OF MILK AND MILK PRODUCTS THAT WILL BE SOLD AT
THE PARTICULAR STORE.  THE COMPETITOR IS NOT A MEMBER OF A COMPETING
CHAIN OR, IF IT IS, THE CHAIN OF WHICH IT IS A PART IS A SMALLER ONE. 
THE COSTS STUDIES HERE INVOLVED HAVE LITTLE, IF ANY, RELATION TO
CENTRALIZED MANAGEMENT.  THEY IN THE MAIN PERTAIN TO TWO FACTORS OF
COST.  FIRST, IS THE VOLUME OF SALES OF MILK AND MILK PRODUCTS TO THE
INDIVIDUAL STORE AND THE METHOD OF PAYMENT.  SECOND, THE DEGREE TO
WHICH THE STORE RELIEVES THE SELLER OF MILK AND MILK PRODUCTS FROM THE
COSTS OF HANDLING THE PRODUCT AS IT ENTERS THE STORE, OF STACKING OR
STORING THE PRODUCTS, AND OF RETURNING THE EMPTY BOTTLES OR CARTONS. 

THE CHANGES IN THE CLAYTON ACT MADE BY THE ROBINSON-PATMAN ACT NOW
BEFORE US WERE MADE TO LIMIT DISCOUNTS AS "INSTRUMENTS OF FAVOR AND
PRIVILEGE AND WEAPONS OF COMPETITIVE OPPRESSION."  S. REP. NO. 1502,
74TH CONG., 2D SESS., P. 5; H.R. REP. NO. 2287, 74TH CONG., 2D SESS.,
P. 9.  THE ALLOWANCE BY SEC. 2(A) OF "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" WAS EXPLAINED AS
FOLLOWS: 

"THIS LIMITS THE DIFFERENCES IN COST WHICH MAY JUSTIFY PRICE
DIFFERENTIALS STRICTLY TO THOSE ACTUAL DIFFERENCES TRACEABLE TO THE
PARTICULAR BUYER FOR AND AGAINST WHOM THE DISCRIMINATION IS GRANTED, TO
THE DIFFERENT METHODS OF SERVING THEM, AND TO THE DIFFERENT QUANTITIES
IN WHICH THEY BUY. 

"BUT SUCH DIFFERENTIALS WHETHER THEY ARISE IN OPERATING OR OVERHEAD
COST MUST, AS IS PLAINLY STATED IN THE PHRASE QUOTED ABOVE, BE THOSE
RESULTING FROM THE DIFFERING METHODS OR QUANTITIES IN WHICH SUCH
COMMODITIES ARE TO SUCH PURCHASERS SOLD OR DELIVERED. 

"THIS, IN ITS PLAIN MEANING, PERMITS DIFFERENCES IN OVERHEAD WHERE
THEY CAN ACTUALLY BE SHOWN AS BETWEEN THE CUSTOMERS OR CLASSES OF
CUSTOMERS CONCERNED, BUT IT PRECLUDES DIFFERENTIALS BASED ON THE
IMPUTATION OF OVERHEAD TO PARTICULAR CUSTOMERS, OR THE EXEMPTION OF
OTHERS FROM IT, WHERE SUCH OVERHEAD REPRESENTS FACILITIES OR ACTIVITIES
INSEPARABLE FROM THE SELLER'S BUSINESS AS A WHOLE AND NOT ATTRIBUTABLE
TO THE BUSINESS OF PARTICULAR CUSTOMERS OR OF THE PARTICULAR CUSTOMERS
CONCERNED IN THE DISCRIMINATION.  IT LEAVES OPEN AS A QUESTION OF FACT
IN EACH CASE WHETHER THE DIFFERENCES IN COST URGED IN JUSTIFICATION OF
A PRICE DIFFERENTIAL - WHETHER OF OPERATING OR OF OVERHEAD COSTS - IS
OF ONE KIND OR THE OTHER.  THAT IS, WHETHER OR NOT IT ANSWERS THE ABOVE
REQUIREMENTS AS TO DIFFERENCES RESULTING FROM DIFFERING METHODS OR
QUANTITIES IN WHICH SUCH COMMODITIES ARE TO SUCH PURCHASERS SOLD OR
DELIVERED."  H.R. REP. NO. 2287, SUPRA, P. 10.    WHILE IN SOME CASES
COSTS RELEVANT TO THE ISSUE OF DISCRIMINATION UNDER THE ROBINSON-PATMAN
ACT MAY BE COMPUTED CLASS BY CLASS, THE ONLY COSTS RELEVANT HERE ARE
THOSE COMPUTED STORE BY STORE.  THE QUESTION OF COST OF DELIVERY TO ALL
STORES IN THE FAVORED CHAIN IS IRRELEVANT, BECAUSE OVERHEAD COSTS
APPLICABLE TO A BUSINESS AS A UNIT HAVE NO BEARING ON ANY OF THE COST
FORMULAE PRESENTED BY THIS RECORD. 

IN THE CASE OF BOWMAN DAIRY CO., AS THE COURT POINTS OUT, THE COMPANY
CHARGED ALL INDEPENDENTS FOR CUSTOMER SERVICE RENDERED BY BOWMAN'S
DELIVERYMEN WHETHER THE INDEPENDENTS AVAILED THEMSELVES OF THE SERVICE
OR NOT.  BOWMAN ALSO CHARGED INDEPENDENTS FOR THE TIME AND EXPENSE OF
DAILY CASH COLLECTIONS AND FOR THE COSTS OF DELAYS IN COLLECTING. 
THESE ITEMS WERE CHARGED TO INDEPENDENTS EVEN THOUGH IT WAS NOT SHOWN
THAT THEIR SYSTEM OF PAYMENT WAS ALWAYS IN CASH, RATHER THAN BY CENTRAL
BILLINGS, THE SYSTEM USED BY THE CHAINS. 

IN THE BORDEN CASE AN INDEPENDENT WHO PURCHASED SUBSTANTIALLY LARGER
QUANTITIES THAN THE AVERAGE CHAIN STORE COULD NOT QUALIFY FOR THE
DISCOUNT THE CHAIN STORE OBTAINED.  THIS RESULTED BECAUSE THE
INDEPENDENTS WERE TREATED AS ONE CLASS, THE CHAIN STORES AS ANOTHER
CLASS.  AS IN BOWMAN THE INDEPENDENTS WHO DID NOT MAKE CASH PAYMENTS
WERE TREATED AS IF THEY DID; AND THEY WERE NOT GIVEN THE ADVANTAGE
WHICH THE CHAIN STORES ENJOYED BY REASON OF CENTRALIZED BILLING EVEN
THOUGH THEY WERE ON A CREDIT BASIS. 

WHAT WAS SAID IN CHAMPION SPARK PLUG CO., 50 F.T.C. 30, 43, IS
RELEVANT HERE: 

"RESPONDENT'S COST OF DOING BUSINESS UNDOUBTEDLY VARIED AS AMONG ITS
DIFFERENT CUSTOMERS.  ALL OF ITS SELLING EXPENSES WERE NOT APPLICABLE
ON A PROPORTIONATELY EQUAL BASIS TO SALES TO ALL OF ITS CUSTOMERS. 
HOWEVER, IN THE ABSENCE OF A SOUND BASIS FOR DETERMINING THE ACTUAL
COST OF SELLING TO PARTICULAR CUSTOMERS, THE SALES TO EACH CUSTOMER
MUST BEAR THEIR PROPORTIONATE SHARE OF THE ENTIRE SELLING EXPENSE.  A
COST JUSTIFICATION BASED ON THE DIFFERENCE BETWEEN AN ESTIMATED AVERAGE
COST OF SELLING TO ONE OR TWO LARGE CUSTOMERS AND AN AVERAGE COST OF
SELLING TO ALL OTHER CUSTOMERS CANNOT BE ACCEPTED AS A DEFENSE TO A
CHARGE OF PRICE DISCRIMINATION." 

WHERE CENTRALIZED PURCHASING FOR MANY STORES TAKES PLACE, THE COSTS
OF DEALING WITH THE GROUP AS A CLASS BECOME RELEVANT TO THE PROBLEM
UNDER SEC. 2(A).  BUT WHERE, AS HERE, NO CENTRALIZED PURCHASING IS
INVOLVED, THE STORE-BY-STORE COSTS ARE THE ONLY CRITERIA RELEVANT TO
THE SEC. 2(A) PROBLEM.  OTHERWISE THOSE WITH THE MOST PRESTIGE GET THE
LARGEST DISCOUNTS AND THE INDEPENDENT MERCHANTS ARE MORE AND MORE
FORCED TO THE WALL. 

THE CASE WAS ARGUED AS IF THE GRANT OF DISCOUNTS WAS A NATURAL RIGHT
AND THAT THE ACT SHOULD BE CONSTRUED SO AS TO MAKE THE GRANTING OF THEM
EASY.  THE ACT REFLECTS, HOWEVER, A PURPOSE TO CONTROL PRACTICES THAT
LEAD TO MONOPOLY AND AN IMPOVERISHMENT OF OUR MIDDLE CLASS.  I WOULD
THEREFORE READ IT IN A WAY THAT PRESERVES AS MUCH OF OUR TRADITIONAL
FREE ENTERPRISE AS POSSIBLE.  FREE ENTERPRISE IS NOT FREE WHEN MONOPOLY
POWER IS USED TO BREED MORE MONOPOLY.  THAT IS THE CASE HERE UNLESS
STORE-BY-STORE COSTS ARE USED AS THE CRITERIA FOR DISCOUNTS.  THIS CASE
IS THUS KIN TO THAT IN MOORE V. MEAD'S FINE BREAD CO., 348 U.S. 115,
WHERE THE LUSH TREASURY OF A CHAIN WAS USED TO BRING A LOCAL BAKERY TO
ITS KNEES.  HERE, AS THERE, THE CHAINS OBTAIN A "COMPETITIVE ADVANTAGE"
NOT AS A RESULT "OF THEIR SKILLS OR EFFICIENCY" BUT AS A CONSEQUENCE OF
OTHER INFLUENCES.*  THERE PRICE-CUTTING WAS THE WEAPON.  HERE IT IS THE
DISCOUNT.  EACH LEADS TO THE SAME END - THE AGGRANDIZEMENT OF POWER BY
THE CHAINS AND THE PLOUGHING UNDER OF THE INDEPENDENTS.  THE ANTITRUST
LAWS, OF WHICH THE ROBINSON-PATMAN ACT IS A PART, WERE DESIGNED TO
AVERT SUCH AN INQUEST ON FREE ENTERPRISE. 

*SEE CURTISS CANDY CO., 44 F.T.C. 237, 267-268, 274; INTERNATIONAL
SALT CO., 49 F.T.C. 138, 153-155, 157; CHAMPION SPARK PLUG CO., 50
F.T.C. 30, 43. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT TREATS THIS CASE AS IF THE DISTRICT COURT HAD INTRODUCED
NOVEL AND DISRUPTIVE PRINCIPLES INTO THE LAW OF "COST JUSTIFICATION"
UNDER SEC. 2(A) OF THE CLAYTON ACT. 

ALTHOUGH I CONSIDER THE RESPECTIVE COST STUDIES MUCH MORE ADEQUATE
THAN THE COURT CREDITS THEM WITH BEING, IT IS SUFFICIENT TO SAY THAT,
AS I READ THE OPINION BELOW, THE DISTRICT COURT JUDGED THEIR OVER-ALL
ADEQUACY IN ACCORDANCE WITH ACCEPTED PRINCIPLES OF LAW IN THIS FIELD. 
THE LOWER COURT INDEED CAREFULLY REFRAINED FROM GIVING UNQUALIFIED
APPROVAL TO EITHER SET OF COST STUDIES, IN SUBSTANCE MERELY HOLDING (1)
THAT THE STUDIES HAD BEEN CONSCIENTIOUSLY PREPARED AND PRIMA FACIE
APPEARED TO JUSTIFY GENERALLY THE PRICE DISCRIMINATIONS ARISING FROM
THE APPELLEES' DISCOUNT PRACTICES (AND MORE PARTICULARLY TO JUSTIFY
THOSE SPECIFICALLY RELIED ON BY THE GOVERNMENT AS "TRIAL" SAMPLES); AND
(2) THAT, IN LIGHT OF THE LONG-DRAWN-OUT HISTORY OF THIS LITIGATION,
THE APPROPRIATE DISPOSITION WAS TO DENY INJUNCTIVE RELIEF, ALLOWING THE
GOVERNMENT TO BRING TO THE ATTENTION OF THE FEDERAL TRADE COMMISSION
ANY OTHER SPECIFIC PRICE DIFFERENTIALS WHICH IT BELIEVED NOT
JUSTIFIABLE UNDER THESE OR OTHER COST STUDIES. 

THIS SEEMS TO ME AN EMINENTLY SENSIBLE AND FAIR DISPOSITION OF THIS
STALE LITIGATION WHICH HAS NOW BEEN IN THE COURTS FOR NEARLY 12 YEARS. 
I CAN SEE NO POINT WHATEVER IN THIS COURT SENDING THE CASE BACK TO THE
DISTRICT COURT FOR WHAT WILL PRESUMABLY AMOUNT TO A THIRD TRIAL,
ESPECIALLY WHEN IT IS APPARENT THAT DRASTIC CHANGES IN THE SITUATION
COMPLAINED OF BY THE GOVERNMENT HAVE TAKEN PLACE SINCE 1955. 

HAD WHAT THE RECORD NOW REVEALS BEEN FULLY APPRECIATED AT THE TIME
THE JURISDICTIONAL STATEMENT WAS CONSIDERED, A SUMMARY DISPOSITION OF
THE CASE WOULD HAVE BEEN CALLED FOR.* 

*THE DELAYS OCCASIONED BY THE OVERCROWDED DOCKET OF THIS COURT AS
WELL AS THE NATURE OF THE ISSUES IN THIS LITIGATION AGAIN POINT UP THE
INADVISABILITY OF VESTING SOLE APPELLATE JURISDICTION OVER THIS TYPE OF
CASE IN THIS COURT.  SEE BROWN SHOE CO. V. UNITED STATES, 370 U.S. 294,
357 (DISSENTING AND CONCURRING OPINION). 

I WOULD AFFIRM. 
..END :












MANUAL ENTERPRISES, INC., V. DAY 370 U.S. 478 


NO. 123.  ARGUED FEBRUARY 26-27, 1962 - DECIDED JUNE 25, 1962 - 110 U.S.
APP. D.C. 78, 289 F.2D 455, REVERSED. 


AFTER AN ADMINISTRATIVE HEARING, THE JUDICIAL OFFICER OF THE POST
OFFICE DEPARTMENT ISSUED A RULING BARRING A SHIPMENT OF PETITIONERS'
MAGAZINES FROM THE MAILS UNDER 18 U.S.C. SEC. 1461, ON THE GROUNDS THAT
(1) THEY WERE THEMSELVES "OBSCENE," AND (2) THEY GAVE INFORMATION AS TO
WHERE "OBSCENE" MATTER COULD BE OBTAINED.  THE MAGAZINES CONSISTED
LARGELY OF PHOTOGRAPHS OF NUDE, OR NEARLY NUDE, MALE MODELS AND GAVE
THE NAME OF EACH MODEL AND EACH PHOTOGRAPHER AND THE LATTER'S ADDRESS. 
THEY ALSO CONTAINED A NUMBER OF ADVERTISEMENTS BY INDEPENDENT
PHOTOGRAPHERS OFFERING FOR SALE PHOTOGRAPHS OF NUDE MEN.  THE JUDICIAL
OFFICER FOUND THAT THE MAGAZINES (1) WERE COMPOSED PRIMARILY, IF NOT
EXCLUSIVELY, FOR HOMOSEXUALS AND HAD NO LITERARY, SCIENTIFIC OR OTHER
MERIT; (2) WOULD APPEAL TO THE "PRURIENT INTEREST" OF SUCH SEXUAL
DEVIATES, BUT WOULD NOT HAVE ANY INTEREST FOR SEXUALLY NORMAL
INDIVIDUALS; (3) ARE READ ALMOST ENTIRELY BY HOMOSEXUALS, AND POSSIBLY
A FEW ADOLESCENT MALES; AND (4) WOULD NOT ORDINARILY BE BOUGHT BY
NORMAL MALE ADULTS.  IN A SUIT BY PETITIONERS, THE DISTRICT COURT
SUSTAINED THE ADMINISTRATIVE RULING AND DENIED INJUNCTIVE RELIEF.  THE
COURT OF APPEALS AFFIRMED.  HELD:  THE JUDGMENT IS REVERSED.  PP. 479
519. 

MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE STEWART, CONCLUDED THAT: 

1.  THESE MAGAZINES ARE NOT "OBSCENE" WITHIN THE MEANING OF 18 U.S.C.
SEC. 1461, BECAUSE, TAKEN AS A WHOLE, THEY CANNOT, UNDER ANY
PERMISSIBLE CONSTITUTIONAL STANDARD, BE DEEMED TO BE BEYOND THE PALE OR
CONTEMPORARY NOTIONS OF RUDIMENTARY DECENCY.  PP. 481-491. 

2.  THE OBSCENE-ADVERTISING PROSCRIPTION OF SEC. 1461 IS NOT
APPLICABLE UNLESS THE PUBLISHER KNEW THAT AT LEAST SOME OF HIS
ADVERTISERS WERE OFFERING TO SELL OBSCENE MATERIAL, AND THE EVIDENCE IN
THIS RECORD IS NOT SUFFICIENT TO SUPPORT A FINDING THAT PETITIONERS HAD
SUCH KNOWLEDGE.  PP. 491-495. 

MR. JUSTICE BRENNAN, JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS, CONCLUDED THAT 18 U.S.C. SEC. 1461 DOES NOT AUTHORIZE THE
POSTMASTER GENERAL TO EMPLOY ANY ADMINISTRATIVE PROCESS OF HIS OWN TO
CLOSE THE MAILS TO MATTER WHICH, IN HIS VIEW, FALLS WITHIN THE BAN OF
THAT SECTION.  PP. 495-519. 

MANUAL ENTERPRISES, INC., ET AL. V. DAY, POSTMASTER GENERAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH MR. JUSTICE STEWART JOINS. 

THIS CASE DRAWS IN QUESTION A RULING OF THE POST OFFICE DEPARTMENT,
SUSTAINED BOTH BY THE DISTRICT COURT AND THE COURT OF APPEALS, 110 U.S.
APP. D.C. 78, 289 F.2D 455, BARRING FROM THE MAILS A SHIPMENT OF
PETITIONERS' MAGAZINES.  THAT RULING WAS BASED ON ALTERNATIVE
DETERMINATIONS THAT THE MAGAZINES (1) WERE THEMSELVES "OBSCENE," AND
(2) GAVE INFORMATION AS TO WHERE OBSCENE MATTER COULD BE OBTAINED, THUS
RENDERING THEM NONMAILABLE UNDER TWO SEPARATE PROVISIONS OF 18 U.S.C.
SEC. 1461, KNOWN AS THE COMSTOCK ACT.  (FN1)  CERTIORARI WAS GRANTED
(368 U.S. 809) TO CONSIDER THE CLAIM THAT THIS RULING WAS INCONSISTENT
WITH THE PROPER INTERPRETATION AND APPLICATION OF SEC. 1461, AND WITH
PRINCIPLES ESTABLISHED IN TWO OF THIS COURT'S PRIOR DECISIONS.  ROTH V.
UNITED STATES, 354 U.S. 476; SMITH V. CALIFORNIA, 361 U.S. 147.  (FN2) 

PETITIONERS ARE THREE CORPORATIONS RESPECTIVELY ENGAGED IN PUBLISHING
MAGAZINES TITLED MANUAL, TRIM, AND GRECIAN GUILD PICTORIAL.  THEY HAVE
OFFICES AT THE SAME ADDRESS IN WASHINGTON, D.C., AND A COMMON
PRESIDENT, ONE HERMAN L. WOMACK.  THE MAGAZINES CONSIST LARGELY OF
PHOTOGRAPHS OF NUDE, OR NEAR-NUDE, MALE MODELS AND GIVE THE NAMES OF
EACH MODEL AND THE PHOTOGRAPHER, TOGETHER WITH THE ADDRESS OF THE
LATTER.  THEY ALSO CONTAIN A NUMBER OF ADVERTISEMENTS BY INDEPENDENT
PHOTOGRAPHERS OFFERING NUDIST PHOTOGRAPHS FOR SALE. 

ON MARCH 25, 1960, SIX PARCELS CONTAINING AN AGGREGATE OF 405 COPIES
OF THE THREE MAGAZINES, DESTINED FROM ALEXANDRIA, VIRGINIA, TO CHICAGO,
ILLINOIS, WERE DETAINED BY THE ALEXANDRIA POSTMASTER, PENDING A RULING
BY HIS SUPERIORS AT WASHINGTON AS TO WHETHER THE MAGAZINES WERE
"NONMAILABLE."  AFTER AN EVIDENTIARY HEARING BEFORE THE JUDICIAL
OFFICER OF THE POST OFFICE DEPARTMENT THERE ENSUED THE ADMINISTRATIVE
AND COURT DECISIONS NOW UNDER REVIEW. 

                                              I. 

ON THE ISSUE OF OBSCENITY, AS DISTINGUISHED FROM UNLAWFUL
ADVERTISING, THE CASE COMES TO US WITH THE FOLLOWING ADMINISTRATIVE
FINDINGS, WHICH ARE SUPPORTED BY SUBSTANTIAL EVIDENCE AND WHICH WE, AND
INDEED THE PARTIES, FOR THE MOST PART, THEMSELVES, ACCEPT:  (1) THE
MAGAZINES ARE NOT, AS ASSERTED BY PETITIONERS, PHYSICAL CULTURE OR
"BODY-BUILDING" PUBLICATIONS, BUT ARE COMPOSED PRIMARILY, IF NOT
EXCLUSIVELY, FOR HOMOSEXUALS, AND HAVE NOT LITERARY, SCIENTIFIC OR
OTHER MERIT; (FN3) (2) THEY WOULD APPEAL TO THE "PRURIENT INTEREST" OF
SUCH SEXUAL DEVIATES, BUT WOULD NOT HAVE ANY INTEREST FOR SEXUALLY
NORMAL INDIVIDUALS; AND (3) THE MAGAZINES ARE READ ALMOST ENTIRELY BY
HOMOSEXUALS, AND POSSIBLY A FEW ADOLESCENT MALES; THE ORDINARY MALE
ADULT WOULD NOT NORMALLY BUY THEM. 

ON THESE PREMISES, THE QUESTION WHETHER THESE MAGAZINES ARE
"OBSCENE," AS IT WAS DECIDED BELOW AND ARGUED BEFORE US, WAS THOUGHT TO
DEPEND SOLELY ON A DETERMINATION AS TO THE RELEVANT "AUDIENCE" IN TERMS
OF WHICH THEIR "PRURIENT INTEREST" APPEAL SHOULD BE JUDGED.  THIS VIEW
OF THE OBSCENITY ISSUE EVIDENTLY STEMMED FROM THE BELIEF THAT IN ROTH
V. UNITED STATES, 354 U.S. 476, 489, THIS COURT ESTABLISHED THE
FOLLOWING SINGLE TEST FOR DETERMINING WHETHER CHALLENGED MATERIAL IS
OBSCENE: "WHETHER TO THE AVERAGE PERSON, APPLYING CONTEMPORARY
COMMUNITY STANDARDS, THE DOMINANT THEME OF THE MATERIAL TAKEN AS A
WHOLE APPEALS TO PRURIENT INTEREST."  (FOOTNOTE OMITTED.)  ON THIS
BASIS THE COURT OF APPEALS, REJECTING THE PETITIONERS' CONTENTION THAT
THE "PRURIENT INTEREST" APPEAL OF THE MAGAZINES SHOULD BE JUDGED IN
TERMS OF THEIR LIKELY IMPACT ON THE "AVERAGE PERSON," EVEN THOUGH NOT
LIKELY RECIPIENT OF THE MAGAZINES, HELD THAT THE ADMINISTRATIVE FINDING
RESPECTING THEIR IMPACT ON THE "AVERAGE HOMOSEXUAL" SUFFICED TO
ESTABLISH THE GOVERNMENT'S CASE AS TO THEIR OBSCENTIY. 

WE DO NOT REACH THE QUESTION THUS THOUGHT BELOW TO BE DISPOSITIVE ON
THIS ASPECT OF THE CASE.  FOR WE FIND LACKING IN THESE MAGAZINES AN
ELEMENT WHICH, NO LESS THAN "PRURIENT INTEREST," IS ESSENTIAL TO A
VALID DETERMINATION OF OBSCENITY UNDER SEC. 1461, AND TO WHICH NEITHER
THE POST OFFICE DEPARTMENT NOR THE COURT OF APPEALS ADDRESSED ITSELF AT
ALL:  THESE MAGAZINES CANNOT BE DEEMED SO OFFENSIVE ON THEIR FACE AS TO
AFFRONT CURRENT COMMUNITY STANDARDS OF DECENCY - A QUALITY THAT WE
SHALL HEREAFTER REFER TO AS "PATENT OFFENSIVENESS" OR "INDECENCY." 
LACKING THAT QUALITY, THE MAGAZINES CANNOT BE DEEMED LEGALLY "OBSCENE,"
AND WE NEED NOT CONSIDER THE QUESTION OF THE PROPER "AUDIENCE" BY WHICH
THEIR "PRURIENT INTEREST" APPEAL SHOULD BE JUDGED. 

THE WORDS OF SEC. 1461, "OBSCENE, LEWD, LASCIVIOUS, INDECENT, FILTHY
OR VILE," CONNOTE SOMETHING THAT IS PORTRAYED IN A MANNER SO OFFENSIVE
AS TO MAKE IT UNACCEPTABLE UNDER CURRENT COMMUNITY MORES.   WHILE IN
COMMON USAGE THE WORDS HAVE DIFFERENT SHADES OF MEANING, (FN4) THE
STATUTE SINCE ITS INCEPTION HAS ALWAYS BEEN TAKEN AS AIMED AT
OBNOXIOUSLY DEBASING PORTRAYALS OF SEX.  (FN5)  ALTHOUGH THE STATUTE
CONDEMNS SUCH MATERIAL IRRESPECTIVE OF THE EFFECT IT MAY HAVE UPON
THOSE INTO WHOSE HANDS IT FALLS, THE EARLY CASE OF UNITED STATES V.
BENNETT, 24 FED. CAS. 1093 (NO. 14571), PUT A LIMITING GLOSS UPON THE
STATUTORY LANGUAGE:  THE STATUTE REACHES ONLY INDECENT MATERIAL WHICH,
AS NOW EXPRESSED IN ROTH V. UNITED STATES, SUPRA, AT 489, "TAKEN AS A
WHOLE APPEALS TO PRURIENT INTEREST."  THIS "EFFECT" ELEMENT, ORIGINALLY
CAST IN SOMEWHAT DIFFERENT LANGUAGE FROM THAT OF ROTH (SEE 354 U.S., AT
487, 489), WAS TAKEN INTO FEDERAL OBSCENITY LAW FROM THE LEADING
ENGLISH CASE OF REGINA V. HICKLIN, (1868) L.R. 3 Q.B. 360, OF WHICH A
DISTINGUISHED AUSTRALIAN JUDGE HAS GIVEN THE FOLLOWING ILLUMINATING
ANALYSIS: 

"AS SOON AS ONE REFLECTS THAT THE WORD 'OBSCENE,' AS AN ORDINARY
ENGLISH WORD, HAS NOTHING TO DO WITH CORRUPTING OR DEPRAVING
SUSCEPTIBLE PEOPLE, AND THAT IT IS USED TO DESCRIBE THINGS WHICH ARE
OFFENSIVE TO CURRENT STANDARDS OF DECENCY AND NOT THINGS WHICH MAY
INDUCE TO SINFUL THOUGHTS, IT BECOMES PLAIN, I THINK, THAT COCKBURN, C.
J., IN  ...  R. V. HICKLIN  ...  WAS NOT PROPOUNDING A LOGICAL
DEFINITION OF THE WORD 'OBSCENE,' BUT WAS MERELY EXPLAINING THAT
PARTICULAR CHARACTERISTIC WHICH WAS NECESSARY TO BRING AN OBSCENE
PUBLICATION WITHIN THE LAW RELATING TO OBSCENE LIBEL.  (FN6)  THE
TENDENCY TO DEPRAVE IS NOT THE CHARACTERISTIC WHICH MAKES A PUBLICATION
OBSCENE BUT IS THE CHARACTERISTIC WHICH MAKES AN OBSCENE PUBLICATION
CRIMINAL.  IT IS AT ONCE AN ESSENTIAL ELEMENT IN THE CRIME AND THE
JUSTIFICATION FOR THE INTERVENTION OF THE COMMON LAW.  BUT IT IS NOT
THE WHOLE AND SOLE TEST OF WHAT CONSTITUTES AN OBSCENE LIBEL.  THERE IS
NO OBSCENE LIBEL UNLESS WHAT IS PUBLISHED IS BOTH OFFENSIVE ACCORDING
TO CURRENT STANDARDS OF DECENCY AND CALCULATED OR LIKELY TO HAVE THE
EFFECT DESCRIBED IN R. V. HICKLIN  ...  ."  (FN7)  REGINA V. CLOSE,
(1948) VICT.  L.R. 445, 463, JUDGMENT OF FULLAGAR, J. 

THE THOUGHTFUL STUDIES OF THE AMERICAN LAW INSTITUTE REFLECT THE SAME
TWOFOLD CONCEPT OF OBSCENITY.  ITS EARLIER DRAFT OF A MODEL PENAL CODE
CONTAINS THE FOLLOWING DEFINITION OF "OBSCENE": "A THING IS OBSCENE IF,
CONSIDERED AS A WHOLE, ITS PREDOMINANT APPEAL IS TO PRURIENT INTEREST
... AND IF IT GOES SUBSTANTIALLY BEYOND CUSTOMARY LIMITS OF CANDOR IN
DESCRIPTION OR REPRESENTATION OF SUCH MATTERS."  A.L.I., MODEL PENAL
CODE, TENT.  DRAFT NO. 6 (1957), SEC. 207.10(2).  THE SAME
ORGANIZATION'S CURRENTLY PROPOSED DEFINITION READS:  "MATERIAL IS
OBSCENE IF, CONSIDERED AS A WHOLE, ITS PREDOMINANT APPEAL IS TO
PRURIENT INTEREST  ...  AND IF IN ADDITION IT GOES SUBSTANTIALLY BEYOND
CUSTOMARY LIMITS OF CANDOR IN DESCRIBING OR REPRESENTING SUCH
MATTERS."  A.L.I., MODEL PENAL CODE, PROPOSED OFFICIAL DRAFT (MAY 4,
1962), SEC. 251.4(1).  (FN8) 

OBSCENITY UNDER THE FEDERAL STATUTE THUS REQUIRES PROOF OF TWO
DISTINCT ELEMENTS:  (1) PATENT OFFENSIVENESS; AND (2) "PRURIENT
INTEREST" APPEAL.  BOTH MUST CONJOIN BEFORE CHALLENGED MATERIAL CAN BE
FOUND "OBSCENE" UNDER SEC. 1461.  IN MOST OBSCENTIY CASES, TO BE SURE,
THE TWO ELEMENTS TEND TO COALESCE, FOR THAT WHICH IS PATENTLY OFFENSIVE
WILL ALSO USUALLY CARRY THE REQUISITE "PRURIENT INTEREST" APPEAL.  IT
IS ONLY IN THE UNUSUAL INSTANCE WHERE, AS HERE, THE "PRURIENT INTEREST"
APPEAL OF THE MATERIAL IS FOUND LIMITED TO A PARTICULAR CLASS OF
PERSONS THAT OCCASION ARISES FOR A TRULY INDEPENDENT INQUIRY INTO THE
QUESTION WHETHER OR NOT THE MATERIAL IS PATENTLY OFFENSIVE. 

THE COURT OF APPEALS WAS MISTAKEN IN CONSIDERING THAT ROTH MADE
"PRURIENT INTEREST" APPEAL THE SOLE TEST OF OBSCENITY.  (FN9)  READING
THAT CASE AS DISPENSING WITH THE REQUISITE OF PATENTLY OFFENSIVE
PORTRAYAL WOULD BE NOT ONLY INCONSISTENT WITH SEC. 1461 AND ITS COMMON
LAW BACKGROUND, BUT OUT OF KEEPING WITH ROTH'S EVIDENT PURPOSE TO
TIGHTEN OBSCENITY STANDARDS.  THE COURT THERE BOTH REJECTED THE
"ISOLATED EXCERPT" AND "PARTICULARLY SUSCEPTIBLE PERSONS" TESTS OF THE
HICKLIN CASE, 354 U.S., AT 488-489, AND WAS AT PAINS TO POINT OUT THAT
NOT ALL PORTRAYALS OF SEX COULD BE REACHED BY OBSCENITY LAWS BUT ONLY
THOSE TREATING THAT SUBJECT "IN A MANNER APPEALING TO PRURIENT
INTEREST."   354 U.S., AT 487.  THAT, OF COURSE, WAS BUT A COMPENDIOUS
WAY OF EMBRACING IN THE OBSCENITY STANDARD BOTH THE CONCEPT OF PATENT
OFFENSIVENESS, MANIFESTED BY THE TERMS OF SEC. 1461 ITSELF, AND THE
ELEMENT OF THE LIKELY CORRUPTIVE EFFECT OF THE CHALLENGED MATERIAL,
BROUGHT INTO FEDERAL LAW VIA REGINA V. HICKLIN. 

TO CONSIDER THAT THE "OBSCENITY" EXCEPTION IN "THE AREA OF
CONSTITUTIONALLY PROTECTED SPEECH OR PRESS," ROTH, AT 485, DOES NOT
REQUIRE ANY DETERMINATION AS TO THE PATENT OFFENSIVENESS VEL NON OF THE
MATERIAL ITSELF MIGHT WELL PUT THE AMERICAN PUBLIC IN JEOPARDY OF BEING
DENIED ACCESS TO MANY WORTHWHILE WORKS IN LITERATURE, SCIENCE, OR ART.
FOR ONE WOULD NOT HAVE TO TRAVEL FAR EVEN AMONG THE ACKNOWLEDGED
MASTERPIECES IN ANY OF THESE FIELDS TO FIND WORKS WHOSE "DOMINANT
THEME" MIGHT, NOT BEYOND REASON, BE CLAIMED TO APPEAL TO THE "PRURIENT
INTEREST" OF THE READER OR OBSERVER.  WE DECLINE TO ATTRIBUTE TO
CONGRESS ANY SUCH QUIXOTIC AND DEADENING PURPOSE AS WOULD BAR FROM THE
MAILS ALL MATERIAL, NOT PATENTLY OFFENSIVE, WHICH STIMULATES IMPURE
DESIRES RELATING TO SEX.  INDEED SUCH A CONSTRUCTION OF SEC. 1461 WOULD
DOUBTLESS ENCOUNTER CONSTITUTIONAL BARRIERS.  ROTH, AT 487-489. 
CONSEQUENTLY WE CONSIDER THE POWER EXERCISED BY CONGRESS IN ENACTING
SEC. 1461 AS NO MORE EMBRACING THAN THE INTERDICTION OF "OBSCENITY" AS
IT HAD THERETOFORE BEEN UNDERSTOOD.  IT IS ONLY MATERIAL WHOSE
INDECENCY IS SELF-DEMONSTRATING AND WHICH, FROM THE STANDPOINT OF ITS
EFFECT, MAY BE SAID PREDOMINANTLY TO APPEAL TO THE PRURIENT INTEREST
THAT CONGRESS HAS CHOSEN TO BAR FROM THE MAILS BY THE FORCE OF SEC.
1461. 

WE COME THEN TO WHAT WE CONSIDER THE DISPOSITIVE QUESTION ON THIS
PHASE OF THE CASE.  ARE THESE MAGAZINES OFFENSIVE ON THEIR FACE? 
WHETHER THIS QUESTION BE DEEMED ONE OF FACT OR OF MIXED FACT AND LAW,
SEE LOCKHART AND MCCLURE, CENSORSHIP OF OBSCENITY:  THE DEVELOPING
CONSTITUTIONAL STANDARDS, 45 MINN. L. REV. 5, 114-115 (1960), WE SEE NO
NEED OF REMANDING THE CASE FOR INITIAL CONSIDERATION BY THE POST OFFICE
DEPARTMENT OR THE COURT OF APPEALS OF THIS MISSING FACTOR IN THEIR
DETERMINATIONS.  THAT ISSUE, INVOLVING FACTUAL MATTERS ENTANGLED IN A
CONSTITUTIONAL CLAIM, SEE GROVE PRESS, INC., V. CHRISTENBERRY, 276 F.2D
433, 436, IS ULTIMATELY ONE FOR THIS COURT.  THE RELEVANT MATERIALS
BEING BEFORE US, WE DETERMINE THE ISSUE FOR OURSELVES. 

THERE MUST FIRST BE DECIDED THE RELEVANT "COMMUNITY" IN TERMS OF
WHOSE STANDARDS OF DECENCY THE ISSUE MUST BE JUDGED.  WE THINK THAT THE
PROPER TEST UNDER THIS FEDERAL STATUTE, REACHING AS IT DOES TO ALL
PARTS OF THE UNITED STATES WHOSE POPULATION REFLECTS MANY DIFFERENT
ETHNIC AND CULTURAL BACKGROUNDS, IS A NATIONAL STANDARD OF DECENCY.  WE
NEED NOT DECIDE WHETHER CONGRESS COULD CONSTITUTIONALLY PRESCRIBE A
LESSER GEOGRAPHICAL FRAMEWORK FOR JUDGING THIS ISSUE (FN10) WHICH WOULD
NOT HAVE THE INTOLERABLE CONSEQUENCE OF DENYING SOME SECTIONS OF THE
COUNTRY ACCESS TO MATERIAL, THERE DEEMED ACCEPTABLE, WHICH IN OTHERS
MIGHT BE CONSIDERED OFFENSIVE TO PREVAILING COMMUNITY STANDARDS OF
DECENCY.  CF. BUTLER V. MICHIGAN, 352 U.S. 380. 

AS REGARDS THE STANDARD FOR JUDGING THE ELEMENT OF "INDECENCY," THE
ROTH CASE GIVES LITTLE GUIDANCE BEYOND INDICATING THAT THE STANDARD IS
A CONSTITUTIONAL ONE WHICH, AS WITH "PRURIENT INTEREST," REQUIRES
TAKING THE CHALLENGED MATERIAL "AS A WHOLE."  ROTH, AT 489.  BEING
ULTIMATELY CONCERNED ONLY WITH THE QUESTION WHETHER THE FIRST AND
FOURTEENTH AMENDMENTS PROTECT MATERIAL THAT IS ADMITTEDLY OBSCENE,
(FN11) THE COURT THERE HAD NO OCCASION TO EXPLORE THE APPLICATION OF A
PARTICULAR OBSCENITY STANDARD.  AT LEAST ONE IMPORTANT STATE COURT AND
SOME AUTHORITATIVE COMMENTATORS HAVE CONSIDERED ROTH AND SUBSEQUENT
CASES (FN12) TO INDICATE THAT ONLY "HARD-CORE" PORNOGRAPHY CAN
CONSTITUTIONALLY BE REACHED UNDER THIS OR SIMILAR STATE OBSCENITY
STATUTES.  SEE PEOPLE V. RICHMOND COUNTY NEWS, INC., 9 N.Y.2D 578, 175
N.E.2D 681; LOCKHART AND MCCLURE, SUPRA, AT 58-60.  WHETHER "HARD-CORE"
PORNOGRAPHY, OR SOMETHING LESS, BE THE PROPER TEST, WE NEED GO NO
FURTHER IN THE PRESENT CASE THAN TO HOLD THAT THE MAGAZINES IN
QUESTION, TAKEN AS A WHOLE, CANNOT, UNDER ANY PERMISSIBLE
CONSTITUTIONAL STANDARD, BE DEEMED TO BE BEYOND THE PALE OF
CONTEMPORARY NOTIONS OF RUDIMENTARY DECENCY.    WE CANNOT ACCEPT IN
FULL THE GOVERNMENT'S DESCRIPTION OF THESE MAGAZINES WHICH, CONTRARY TO
ROTH (354 U.S., AT 488-489), TENDS TO EMPHASIZE AND IN SOME RESPECTS
OVERDRAW CERTAIN FEATURES IN SEVERAL OF THE PHOTOGRAPHS, AT THE EXPENSE
OF WHAT THE MAGAZINES FAIRLY TAKEN AS A WHOLE DEPICT.  (FN13) OUR OWN
INDEPENDENT EXAMINATION OF THE MAGAZINES LEADS US TO CONCLUDE THAT THE
MOST THAT CAN BE SAID OF THEM IS THAT THEY ARE DISMALLY UNPLEASANT,
UNCOUTH, AND TAWDRY.  BUT THIS IS NOT ENOUGH TO MAKE THEM "OBSCENE." 
DIVORCED FROM THEIR "PRURIENT INTEREST" APPEAL TO THE UNFORTUNATE
PERSONS WHOSE PATRONAGE THEY WERE AIMED AT CAPTURING (A SEPARATE
ISSUE), THESE PORTRAYALS OF THE MALE NUDE CANNOT FAIRLY BE REGARDED AS
MORE OBJECTIONABLE THAN MANY PORTRAYALS OF THE FEMALE NUDE THAT SOCIETY
TOLERATES.  OF COURSE NOT EVERY PORTRAYAL OF MALE OR FEMALE NUDITY IS
OBSCENE.  SEE PARMELEE V. UNITED STATES, 72 APP. D.C. 203, 206-208, 113
F.2D 729, 732-734; SUNSHINE BOOK CO. V. SUMMERFIELD, 355 U.S. 372;
MOUNCE V. UNITED STATES, 355 U.S. 180.  WERE WE TO HOLD THAT THESE
MAGAZINES, ALTHOUGH THEY DO NOT TRANSCEND THE PREVAILING BOUNDS OF
DECENCY, MAY BE DENIED ACCESS TO THE MAILS BY SUCH UNDIFFERENTIATED
LEGISLATION AS THAT BEFORE US, WE WOULD BE IGNORING THE ADMONITION THAT
"THE DOOR ...  INTO THIS AREA (THE FIRST AMENDMENT) CANNOT BE LEFT
AJAR; IT MUST BE KEPT TIGHTLY CLOSED AND OPENED ONLY THE SLIGHTEST
CRACK NECESSARY TO PREVENT ENCROACHMENT UPON MORE IMPORTANT INTERESTS"
(FOOTNOTE OMITTED).  ROTH, AT 488.  (FN14) 

WE CONCLUDE THAT THE ADMINISTRATIVE RULING RESPECTING NONMAILABILITY
IS IMPROVIDENT INSOFAR AS IT DEPENDS ON A DETERMINATION THAT THESE
MAGAZINES ARE OBSCENE. 

                              II. 

THERE REMAINS THE QUESTION OF THE ADVERTISING.  IT IS NOT CONTENDED
THAT THE PETITIONERS HELD THEMSELVES OUT AS PURVEYORS OF OBSCENE
MATERIAL, OR THAT THE ADVERTISEMENTS, AS DISTINGUISHED FROM THE OTHER
CONTENTS OF THE MAGAZINES, WERE OBSCENE ON THEIR OWN ACCOUNT.  THE
ADVERTISEMENTS WERE ALL BY INDEPENDENT THIRD-PARTY PHOTOGRAPHERS.  AND,
NEITHER WITH RESPECT TO THE ADVERTISEMENTS NOR THE MAGAZINES
THEMSELVES, DO WE UNDERSTAND THE GOVERNMENT TO SUGGEST THAT THE
"ADVERTISING" PROVISIONS OF SEC. 1461 ARE VIOLATED IF THE MAILED
MATERIAL MERELY "GIVES THE LEER THAT PROMISES THE CUSTOMER SOME OBSCENE
PICTURES."  UNITED STATES V. HORNICK, 229 F. 2D 120, 121.  SUCH AN
APPROACH TO THE STATUTE COULD NOT WITHSTAND THE UNDERLYING PRECEPTS OF
ROTH.  SEE POSS V. CHRISTENBERRY, 179 F. SUPP. 411, 415; CF. UNITED
STATES V. SCHILLACI, 166 F. SUPP. 303, 306.  THE CLAIM ON THIS BRANCH
OF THE CASE RESTS, THEN, ON THE FACT THAT SOME OF THE THIRD-PARTY
ADVERTISERS WERE FOUND IN POSSESSION OF WHAT UNDOUBTEDLY MAY BE
REGARDED AS "HARD-CORE" PHOTOGRAPHS, (FN15) AND THAT POSTAL OFFICIALS,
ALTHOUGH NOT OBTAINING THE NAMES OF THE ADVERTISERS FROM THE LISTS IN
PETITIONERS' MAGAZINES, RECEIVED SOMEWHAT LESS OFFENSIVE MATERIAL
THROUGH THE MAILS FROM CERTAIN STUDIOS WHICH WERE ADVERTISING IN
PETITIONERS' MAGAZINES. 

A QUESTION OF LAW MUST FIRST BE DEALT WITH.  SHOULD THE "OBSCENE
ADVERTISING" PROSCRIPTION OF SEC. 1461 BE CONSTRUED AS NOT REQUIRING
PROOF THAT THE PUBLISHER KNEW THAT AT LEAST SOME OF HIS ADVERTISERS
WERE OFFERING TO SELL OBSCENE MATERIAL?  IN OTHER WORDS, ALTHOUGH THE
CRIMINAL PROVISIONS OF SEC. 1461 DO REQUIRE SCIENTER (NOTE 1, SUPRA),
CAN THE POST OFFICE DEPARTMENT IN CIVIL PROCEEDINGS UNDER THAT SECTION
ESCAPE WITH A LESSER BURDEN OF PROOF?  WE ARE CONSTRAINED TO A NEGATIVE
ANSWER.  FIRST, CONGRESS HAS REQUIRED SCIENTER IN RESPECT OF ONE
INDICTED FOR MAILING MATERIAL PROSCRIBED BY THE STATUTE.  IN THE
CONSTITUTIONAL CLIMATE IN WHICH THIS STATUTE FINDS ITSELF, WE SHOULD
HESITATE TO ATTRIBUTE TO CONGRESS A PURPOSE TO RENDER A PUBLISHER
CIVILLY RESPONSIBLE FOR THE INNOCUOUS ADVERTISEMENTS OF THE MATERIAL OF
OTHERS, IN THE ABSENCE OF ANY SHOWING THAT HE KNEW THAT THE CHARACTER
OF SUCH MATERIALS WAS OFFENSIVE.  AND WITH NO EXPRESS GRANT OF
AUTHORITY TO THE POST OFFICE DEPARTMENT TO KEEP OBSCENE MATTER FROM THE
MAILS (SEE NOTE 2, SUPRA), WE SHOULD BE SLOW TO ACCEPT THE SUGGESTION
THAT AN ELEMENT OF PROOF EXPRESSLY REQUIRED IN A CRIMINAL PROCEEDING
MAY BE OMITTED IN AN ALTOGETHER PARALLEL CIVIL PROCEEDING.  SECOND,
THIS COURT'S GROUND OF DECISION IN SMITH V. CALIFORNIA, 361 U.S. 147,
INDICATES THAT A SUBSTANTIAL CONSTITUTIONAL QUESTION WOULD ARISE WERE
WE TO CONSTRUE SEC. 1461 AS NOT REQUIRING PROOF OF SCIENTER IN CIVIL
PROCEEDINGS.  FOR THE POWER OF THE POST OFFICE TO BAR A MAGAZINE FROM
THE MAILS, IF EXERCISED WITHOUT PROOF OF THE PUBLISHER'S KNOWLEDGE OF
THE CHARACTER OF THE ADVERTISEMENTS INCLUDED IN THE MAGAZINE, WOULD AS
EFFECTIVELY "IMPOSE A SEVERE LIMITATION ON THE PUBLIC'S ACCESS TO
CONSTITUTIONALLY PROTECTED MATTER," 361 U.S., AT 153, AS WOULD A STATE
OBSCENITY STATUTE WHICH MAKES CRIMINAL THE POSSESSION OF OBSCENE
MATERIAL WITHOUT PROOF OF SCIENTER.  SINCE PUBLISHERS CANNOT
PRACTICABLY BE EXPECTED TO INVESTIGATE EACH OF THEIR ADVERTISERS, AND
SINCE THE ECONOMIC CONSEQUENCES OF AN ORDER BARRING EVEN A SINGLE ISSUE
OF A PERIODICAL FROM THE MAILS MIGHT ENTAIL HEAVY FINANCIAL SACRIFICE,
A MAGAZINE PUBLISHER MIGHT REFRAIN FROM ACCEPTING ADVERTISEMENTS FROM
THOSE WHOSE OWN MATERIALS COULD CONCEIVABLY BE DEEMED OBJECTIONABLE BY
THE POST OFFICE DEPARTMENT.  THIS WOULD DEPRIVE SUCH MATERIALS, WHICH
MIGHT OTHERWISE BE ENTITLED TO CONSTITUTIONAL PROTECTION, OF A
LEGITIMATE AND RECOGNIZED AVENUE OF ACCESS TO THE PUBLIC.  TO BE SURE,
THE COURT FOUND IT UNNECESSARY IN SMITH TO DELINEATE THE SCOPE OF
SCIENTER WHICH WOULD SATISFY THE FOURTEENTH AMENDMENT.  YET IT MAY
SAFELY BE SAID THAT A FEDERAL STATUTE WHICH, AS WE CONSTRUE IT,
REQUIRES THE PRESENCE OF THAT ELEMENT IS NOT SATISFIED, AS THE
GOVERNMENT SUGGESTS IT MIGHT BE, MERELY BY SHOWING THAT A DEFENDANT DID
NOT MAKE A "GOOD FAITH EFFORT" TO ASCERTAIN THE CHARACTER OF HIS
ADVERTISER'S MATERIALS. 

ON THESE PREMISES WE TURN TO THE RECORD IN THIS CASE.  ALTHOUGH
POSTAL OFFICIALS HAD INFORMED PETITIONERS' PRESIDENT, WOMACK, THAT
THEIR DEPARTMENT WAS PROSECUTING SEVERAL OF HIS ADVERTISERS FOR SENDING
OBSCENE MATTER THROUGH THE MAILS, THERE IS NO EVIDENCE THAT ANY OF THIS
MATERIAL WAS SHOWN TO HIM.  HE THUS WAS AFFORDED NO OPPORTUNITY TO
JUDGE FOR HIMSELF AS TO ITS ALLEGED OBSCENITY.  CONTRARIWISE, ONE OF
THE GOVERNMENT WITNESSES AT THE ADMINISTRATIVE HEARING ADMITTED THAT
THE PETITIONERS HAD DELETED THE ADVERTISEMENTS OF SEVERAL PHOTOGRAPHIC
STUDIOS AFTER BEING INFORMED BY THE POST OFFICE THAT THE PROPRIETORS
HAD BEEN CONVICTED OF MAILING OBSCENE MATERIAL.  (FN16)  THE RECORD
REVEALS THAT NONE OF THE POSTAL OFFICIALS WHO RECEIVED ALLEGEDLY
OBSCENE MATTER FROM SOME OF THE ADVERTISERS OBTAINED THEIR NAMES FROM
PETITIONERS' MAGAZINES; THIS MATERIAL WAS RECEIVED AS A RESULT OF
INDEPENDENT TEST CHECKS.  NOR ON THE RECORD BEFORE US CAN PETITIONERS
BE LINKED WITH THE MATERIAL SEIZED BY THE POLICE.  NOTE 15, SUPRA.  THE
ONLY SUCH ASSERTED CONNECTION - THAT "HARD CORE" MATTER WAS SEIZED AT
THE STUDIO OF ONE OF PETITIONERS' ADVERTISERS - FALLS SHORT OF AN
ADEQUATE SHOWING THAT PETITIONERS KNEW THAT THE ADVERTISER WAS OFFERING
FOR SALE OBSCENE MATTER.  WOMACK'S OWN CONVICTION FOR SENDING OBSCENE
MATERIAL THROUGH THE MAILS, WOMACK V. UNITED STATES, 111 U.S. APP. D.C.
8, 294 F.2D 204, IS REMOTE FROM PROOF OF LIKE CONDUCT ON THE PART OF
THE ADVERTISERS.   AT THAT TIME HE WAS ACTING AS PRESIDENT OF ANOTHER
STUDIO; THE VENDEE OF THE MATERIAL, WHILE AN ADVERTISER IN PETITIONERS'
MAGAZINES, HAD CLOSED HIS OWN STUDIO BEFORE THE PRESENT ISSUES WERE
PUBLISHED.  FINALLY, THE GENERAL TESTIMONY BY ONE POSTAL INSPECTOR TO
THE EFFECT THAT IN HIS EXPERIENCE ADVERTISERS OF THIS CHARACTER, AFTER
FIRST LEADING THEIR CUSTOMERS ON WITH BORDERLINE MATERIAL, USUALLY
FOLLOWED UP WITH "HARD-CORE" MATTER, CAN HARDLY BE DEEMED OF PROBATIVE
SIGNIFICANCE ON THE ISSUE AT HAND. 

AT BEST THE GOVERNMENT'S PROOF SHOWED NO MORE THAN THAT PETITIONERS
WERE CHARGEABLE WITH KNOWLEDGE THAT THESE ADVERTISERS WERE OFFERING
PHOTOGRAPHS OF THE SAME CHARACTER, AND WITH THE SAME PURPOSES, AS THOSE
REFLECTED IN THEIR OWN MAGAZINES.  THIS IS NOT ENOUGH TO SATISFY THE
GOVERNMENT'S BURDEN OF PROOF ON THIS SCORE.  (FN17) 

IN CONCLUSION, NOTHING IN THIS OPINION OF COURSE REMOTELY IMPLIES
APPROVAL OF THE TYPE OF MAGAZINES PUBLISHED BY THESE PETITIONERS, STILL
LESS OF THE SORDID MOTIVES WHICH PROMPTED THEIR PUBLICATION.  ALL WE
DECIDE IS THAT ON THIS RECORD THESE PARTICULAR MAGAZINES ARE NOT
SUBJECT TO REPRESSION UNDER SEC. 1461.  REVERSED. 

FN1  SECTION 1461 OF 18 U.S.C. PROVIDES IN PART: 

"EVERY OBSCENE, LEWD, LASCIVIOUS, INDECENT, FILTHY OR VILE ARTICLE,
MATTER, THING, DEVICE OR SUBSTANCE; AND: 

  *         *         *         *         * 

"EVERY WRITTEN OR PRINTED CARD, LETTER, CIRCULAR, BOOK, PAMPHLET,
ADVERTISEMENT, OR NOTICE OF ANY KIND GIVING INFORMATION, DIRECTLY OR
INDIRECTLY, WHERE, OR HOW, OR FROM WHOM, OR BY WHAT MEANS ANY OF SUCH
MENTIONED MATTERS, ARTICLES, OR THINGS MAY BE OBTAINED OR MADE  ...  . 

     *         *         *         * * 

"IS DECLARED TO BE NONMAILABLE MATTER AND SHALL NOT BE CONVEYED IN
THE MAILS OR DELIVERED FROM ANY POST OFFICE OR BY ANY LETTER CARRIER. 

"WHOEVER KNOWINGLY USES THE MAILS FOR THE MAILING, CARRIAGE IN THE
MAILS, OR DELIVERY OF ANYTHING DECLARED BY THIS SECTION TO BE
NONMAILABLE, OR KNOWINGLY CAUSES TO BE DELIVERED BY MAIL ACCORDING TO
THE DIRECTION THEREON, OR AT THE PLACE AT WHICH IT IS DIRECTED TO BE
DELIVERED BY THE PERSON TO WHOM IT IS ADDRESSED, OR KNOWINGLY TAKES ANY
SUCH THING FROM THE MAILS FOR THE PURPOSE OF CIRCULATING OR DISPOSING
THEREOF, OR OF AIDING IN THE CIRCULATION OR DISPOSITION THEREOF, SHALL
BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE YEARS
...  ." 

FN2  BECAUSE OF OUR VIEW OF THE CASE, WE NEED NOT REACH PETITIONERS'
THIRD CONTENTION THAT, AS APPLIED IN THIS INSTANCE, THESE POST OFFICE
PROCEDURES AMOUNTED TO AN UNCONSTITUTIONAL "PRIOR RESTRAINT" ON THE
PUBLICATION OF THESE MAGAZINES.  THE PETITIONER IN THIS CASE HAS NOT
QUESTIONED THE POST OFFICE DEPARTMENT'S GENERAL AUTHORITY UNDER SEC.
1461 TO WITHHOLD THESE MAGAZINES FROM THE MAILS IF THEY ARE OBSCENE. 
IF THAT QUESTION, DISCUSSED IN THE OPINION OF MR. JUSTICE BRENNAN,
POST, P. 495, MAY STILL BE DEEMED OPEN IN THIS COURT, SEE MILWAUKEE
PUBLISHING CO. V. BURLESON, 255 U.S. 407, 421-422 (BRANDEIS, J.,
DISSENTING); CF.  HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, WE DO NOT
THINK IT SHOULD BE DECIDED EXCEPT UPON FULL-DRESS ARGUMENT AND
BRIEFING, WHICH HAVE NOT BEEN AFFORDED US HERE. 

FN3  THE JUDICIAL OFFICER FOUND THAT "THE PUBLISHER HAS ADMITTED THAT
THE MAGAZINES ARE KNOWINGLY PUBLISHED TO APPEAL TO THE MALE HOMOSEXUAL
GROUP," AND THAT "THE PUBLISHER OF THE ISSUES HERE INVOLVED HAS
DELIBERATELY PLANNED THESE PUBLICATIONS SO THAT THEY WOULD APPEAL TO
THE MALE HOMOSEXUAL AUDIENCE  ...  ." 

FN4  THE WORDS OF THE STATUTE ARE DEFINED IN WEBSTER'S NEW
INTERNATIONAL DICTIONARY (UNABRIDGED, 2D ED., 1956) AS FOLLOWS: 

OBSCENE 

"1.  OFFENSIVE TO TASTE; FOUL; LOATHSOME; DISGUSTING. 

     *         *         *         *         * 

"2.  A  OFFENSIVE TO CHASTITY OF MIND OR TO MODESTY; EXPRESSING OR
PRESENTING TO THE MIND OR VIEW SOMETHING THAT DELICACY, PURITY, AND
DECENCY FORBID TO BE EXPOSED; LEWD; INDECENT; AS, OBSCENE LANGUAGE,
DANCES, IMAGES." 

LEWD 

"4.  LUSTFUL, LIBIDINOUS; LASCIVIOUS; UNCHASTE  ...  . 

"SYN. - LICENTIOUS, LECHEROUS, DISSOLUTE, SENSUAL; DEBAUCHED, IMPURE;
OBSCENE, SALACIOUS, PORNOGRAPHIC." 

LASCIVIOUS 

"1.  WANTON; LEWD; LUSTFUL. 

     *         *         *         *         * 

"SYN. - LICENTIOUS, LECHEROUS, LIBIDINOUS, SALACIOUS." 

INDECENT 

"NOT DECENT; SPECIF.:  A  UNBECOMING OR UNSEEMLY; INDECOROUS  ...  . 

"SYN. - IMMODEST, IMPURE; GROSS, OBSCENE." 

FILTHY 

"1.  DEFILED WITH FILTH, WHETHER MATERIAL OR MORAL; NASTY;
DISGUSTINGLY DIRTY; POLLUTING; FOUL; IMPURE; OBSCENE. 

  *         *         *         *         * 

"SYN. - SQUALID, UNCLEAN, GROSS, LICENTIOUS." 

VILE 

"2.  MORALLY CONTAMINATED; BEFOULED BY OR AS IF BY SIN; MORALLY BASE
OR IMPURE; WICKED; EVIL; SINFUL  ... . 

"3.  ...  UNCLEAN; FILTHY; REPULSIVE; ODIOUS  ...  . 

     *         *         *  *         * 

"SYN. - CHEAP (DESPICABLE), DEBASED; DEPRAVED; CORRUPT, SORDID,
VICIOUS; DISGUSTING, LOATHSOME, FOUL."  TO THE SAME EFFECT SEE
WEBSTER'S NEW INTERNATIONAL DICTIONARY (UNABRIDGED, 3D ED. 1961). 

FN5  THE FIRST FEDERAL STATUTE BEARING ON OBSCENITY WAS THE TARIFF
ACT OF 1842 WHICH FORBADE THE IMPORTATION OF "INDECENT AND OBSCENE"
PICTORIAL MATTER AND AUTHORIZED CONFISCATION.  5 STAT. 566-567.  IN
1865 THE CONGRESS PASSED THE FIRST POSTAL ACT TOUCHING ON THE MAILING
OF OBSCENE MATTER, MAKING IT A CRIME TO DEPOSIT AN "OBSCENE BOOK  ...
OR OTHER PUBLICATION OF A VULGAR AND INDECENT CHARACTER" IN THE MAILS. 
13 STAT. 507.  THE REENACTMENT OF THE 1865 ACT IN THE CODIFICATION OF
THE POSTAL LAWS IN 1872 DID NOT CHANGE THE SEVERAL ADJECTIVES
DESCRIBING THE OBJECTIONABLE MATTER.  17 STAT. 302.  THE COMSTOCK ACT,
17 STAT. 598, ADDED THE DESCRIPTIVE TERMS "LEWD" AND "LASCIVIOUS" SO
THAT THE PROSCRIPTION THEN INCLUDED ANY "OBSCENE, LEWD, OR LASCIVIOUS
BOOK  ...  OR OTHER PUBLICATION OF AN INDECENT CHARACTER," BUT THIS
COURT IN SWEARINGEN V. UNITED STATES, 161 U.S. 446, 450, HELD THAT THE
WORDS "OBSCENE, LEWD OR LASCIVIOUS" DESCRIBED A SINGLE OFFENSE.  IN
1909 THE PHRASE "AND EVERY FILTHY" AS WELL AS THE WORD "VILE" WERE
INCLUDED IN THE PROVISIONS OF THE COMSTOCK ACT, 35 STAT. 1129.  IN 1955
THE WORDS WERE ARRANGED IN THEIR PRESENT ORDER.  69 STAT. 183.  THE
COURT OF APPEALS FOR THE FIRST CIRCUIT NOTED THAT THE WORDS "INDECENT,
FILTHY OR VILE" ARE LIMITED IN THEIR MEANING BY THE PRECEDING WORDS
"OBSCENE, LEWD, LASCIVIOUS," AND THAT ALL HAVE REFERENCE TO MATTERS OF
SEX.  FLYING EAGLE PUBLICATIONS, INC. V. UNITED STATES, 273 F.2D 799,
803.    FN6  "OBSCENE LIBEL" IN ENGLISH USAGE SIMPLY MEANS OBSCENE
MATERIAL, BEING DERIVED FROM LIBELLUS, "LITTLE BOOK."  SEE ST. JOHN
STEVAS, OBSCENITY AND THE LAW, 24. 

FN7  THE PASSAGE REFERRED TO IN REGINA V. HICKLIN WAS THE FOLLOWING:
"I THINK THE TEST OF OBSCENITY IS THIS, WHETHER THE TENDENCY OF THE
MATTER CHARGED AS OBSCENITY IS TO DEPRAVE AND CORRUPT THOSE WHOSE MINDS
ARE OPEN TO SUCH IMMORAL INFLUENCES, AND INTO WHOSE HANDS A PUBLICATION
OF THIS SORT MAY FALL.  NOW, WITH REGARD TO THIS WORK, IT IS QUITE
CERTAIN THAT IT WOULD SUGGEST TO THE MINDS OF THE YOUNG OF EITHER SEX,
OR EVEN TO PERSONS OF MORE ADVANCED YEARS, THOUGHTS OF A MOST IMPURE
AND LIBIDINOUS CHARACTER."  (1868) L.R. 3 Q.B., AT 371. 

THE QUOTATIONS FROM REGINA V. CLOSE AND THE HICKLIN CASE ARE NOT
INTENDED TO SIGNIFY OUR APPROVAL OF EITHER THE "TENDENCY TO DEPRAVE" OR
"SEXUAL THOUGHTS" TEST, BUT ONLY TO EMPHASIZE THE TWO ELEMENTS IN THE
LEGAL DEFINITION OF "OBSCENE." 

FN8  THIS DEFINITION WAS APPROVED BY THE INSTITUTE, AS PART OF THE
"PROPOSED OFFICIAL DRAFT," AT ITS ANNUAL MEETING IN WASHINGTON, D.C.,
IN MAY 1962. 

FN9  IT IS ALSO EVIDENT THAT THE JUDICIAL OFFICER OF THE POST OFFICE
DEPARTMENT AND ITS COUNSEL ENTERTAINED THE SAME MISTAKEN VIEW OF ROTH. 
THE REPORT OF THE JUDICIAL OFFICER DID NOT ADDRESS ITSELF DIRECTLY TO
THE INHERENT INDECENCY ASPECT OF THE MAGAZINES, EXCEPT TO THE EXTENT
THAT SUCH FACTOR WAS TANGENTIALLY INVOLVED IN THE FINDINGS ALREADY
SUMMARIZED (SUPRA, P. 481).  THE SAME IS TRUE OF THE EXPERT TESTIMONY
ADDUCED BY GOVERNMENT COUNSEL AT THE ADMINISTRATIVE HEARING. 

FN10  THE 1958 AMENDMENTS TO 18 U.S.C. SEC. 1461, 72 STAT. 962,
AUTHORIZING CRIMINAL PROSECUTION AT THE PLACE OF DELIVERY EVINCE NO
PURPOSE TO MAKE THE STANDARD LESS THAN NATIONAL. 

FN11  NO ISSUE WAS PRESENTED IN ROTH AS TO THE OBSCENITY OF ANY OF
THE MATERIALS INVOLVED.  354 U.S., AT 481, N.8. 

FN12  SEE CASES CITED, INFRA, P. 490. 

FN13  "THE MAGAZINES CONTAINED LITTLE TEXTUAL MATERIAL, WITH PICTURES
OF MALE MODELS DOMINATING ALMOST EVERY PAGE  ...  .  THE TYPICAL PAGE
CONSISTED OF A PHOTOGRAPH, WITH THE NAME OF THE MODEL AND THE
PHOTOGRAPHER AND OCCASIONAL REFERENCES TO THE MODEL'S AGE (USUALLY
UNDER 26), COLOR OF EYES, PHYSICAL DIMENSIONS AND OCCUPATION.  THE
MAGAZINES CONTAINED LITTLE, EITHER IN TEXT OR PICTURES, THAT COULD BE
CONSIDERED AS RELATING IN ANY WAY TO WEIGHT LIFTING, MUSCLE BUILDING OR
PHYSICAL CULTURE  ...  . 

"MANY OF THE PHOTOGRAPHS WERE OF NUDE MALE MODELS, USUALLY POSED WITH
SOME OBJECT IN FRONT OF THEIR GENITALS  ...  ; A NUMBER WERE OF NUDE OR
PARTIALLY NUDE MALES WITH EMPHASIS ON THEIR BARE BUTTOCKS  ...  .
ALTHOUGH NONE OF THE PICTURES DIRECTLY EXPOSED THE MODEL'S GENITALS,
SOME SHOWED HIS PUBIC HAIR AND OTHERS SUGGESTED WHAT APPEARED TO BE A
SEMI-ERECT PENIS  ...  ; OTHERS SHOWED MALE MODELS RECLINING WITH THEIR
LEGS (AND SOMETIMES THEIR ARMS AS WELL) SPREAD WIDE APART  ...  . MANY
OF THE PICTURES SHOWED MODELS WEARING ONLY LOIN CLOTHS, 'V GOWNS,' OR
POSING STRAPS ...  ; SOME SHOWED THE MODEL APPARENTLY REMOVING HIS
CLOTHING ...  .  TWO OF THE MAGAZINES HAD PICTURES OF PAIRS OF MODELS
POSED TOGETHER SUGGESTIVELY  ...  . 

"EACH OF THE MAGAZINES CONTAINED PHOTOGRAPHS OF MODELS WITH SWORDS OR
OTHER LONG POINTED OBJECTS ...  .  THE MAGAZINES ALSO CONTAINED
PHOTOGRAPHS OF VIRTUALLY NUDE MODELS WEARING ONLY SHOES, BOOTS, HELMETS
OR LEATHER JACKETS  ...  .  THERE WERE ALSO PICTURES OF MODELS POSED
WITH CHAINS OR OF ONE MODEL BEATING ANOTHER WHILE A THIRD HELD HIS FACE
IN HIS HANDS AS IF WEEPING  ...  ." 

FN14  SINCE CONGRESS HAS SOUGHT TO BAR FROM THE MAILS ONLY MATERIAL
THAT IS "OBSCENE, LEWD, LASCIVIOUS, INDECENT, FILTHY OR VILE," AND IT
IS WITHIN THIS STATUTORY FRAMEWORK THAT WE MUST JUDGE THE MATERIALS
BEFORE US, WE NEED NOT CONSIDER WHETHER THESE MAGAZINES COULD
CONSTITUTIONALLY BE REACHED UNDER "A STATUTE NARROWLY DRAWN TO DEFINE
AND PUNISH SPECIFIC CONDUCT AS CONSTITUTING A CLEAR AND PRESENT
DANGER."  CANTWELL V. CONNECTICUT, 310 U.S. 296, 311. 

FN15  A NUMBER OF SUCH PHOTOGRAPHS WERE SEIZED BY THE POLICE,
POSSESSING SEARCH OR ARREST WARRANTS, BUT KNOWLEDGE THAT THESE
ADVERTISERS WERE SELLING, OR WOULD SELL, SUCH PHOTOGRAPHS WAS NEVER
BROUGHT HOME TO ANY OF THESE PETITIONERS. 

FN16  GRECIAN GUILD PICTORIAL CARRIED A NOTICE THAT IT "DOES NOT
KNOWINGLY USE THE WORK OF ANY STUDIO WHICH TAKES OR SELLS NUDE,
UNDRAPED FRONT OR SIDE VIEW PHOTOGRAPHS.  THE PHOTOGRAPHERS LISTED
ABOVE DO NOT OFFER SUCH PHOTOGRAPHS."  TO BE SURE THIS MAGAZINE, AS DID
THE OTHERS, ALSO CARRIED A NOTATION THAT THE PUBLISHER WAS FAMILIAR
WITH THE WORK OF THE ADVERTISERS AND URGED THE READER TO SUPPORT THEM;
BUT THIS CANNOT WELL BE TAKEN AS AN ADMISSTION OF KNOWLEDGE THAT THE
ADVERTISERS' WORKS WERE OBSCENE. 

FN17  WE DO NOT THINK IT WOULD BE APPROPRIATE AT THIS LATE STAGE TO
REMAND THE CASE FOR FURTHER PROCEEDINGS ON THE ISSUE OF SCIENTER. 
ALTHOUGH SUGGESTING THAT "IT IS ARGUABLE" THAT SCIENTER IS NOT A
NECESSARY ELEMENT UNDER THIS PART OF THE STATUTE, THE GOVERNMENT
UNDERTAKES TO DEFEND THIS ASPECT OF THE JUDGMENT PRIMARILY ON THE
PREMISE THAT IT WAS.  THE RECORD SHOWS THAT AT THE ADMINISTRATIVE
HEARING GOVERNMENT COUNSEL SOUGHT TO FASTEN THE PETITIONERS WITH
KNOWLEDGE THAT THE THIRD-PARTY ADVERTISERS WERE SELLING "OBSCENE"
MATERIAL.  THE JUDICIAL OFFICER INDEED REJECTED THE PETITIONERS'
PROPOSED FINDINGS THAT "THE PUBLISHERS OF EACH OF THE MAGAZINES IN
EVIDENCE  ...  HAD NO PERSONAL KNOWLEDGE OF THE MATERIAL SOLD BY THE
ADVERTISERS  ...  ."  TO BE SURE, THE RECORD DOES NOT DISCLOSE WHETHER
THIS WAS BECAUSE "KNOWLEDGE" WAS DEEMED PROVED RATHER THAN THAT SUCH
ELEMENT WAS NOT CONSIDERED RELEVANT.  BUT ON THE CROSS MOTIONS FOR
SUMMARY JUDGMENT, BASED UPON THE ADMINISTRATIVE RECORD, THE GOVERNMENT
DID NOT UNDERTAKE TO CONTROVERT PETITIONERS' ALLEGATIONS THAT SCIENTER
WAS A NECESSARY ELEMENT UNDER THIS PART OF THE STATUTE. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, CONCURRING IN THE REVERSAL. 

I AGREE THAT THE JUDGMENT BELOW MUST BE REVERSED, THOUGH FOR A REASON
DIFFERENT FROM MY BROTHER HARLAN'S.  THIS IS THE FIRST OCCASION ON
WHICH THE COURT HAS GIVEN PLENARY REVIEW (FN1) TO A POST OFFICE
DEPARTMENT ORDER HOLDING MATTER "NONMAILABLE" BECAUSE OBSCENE. 

PETITIONERS, PUBLISHERS OF CERTAIN MAGAZINES, EMPLOY THE MAILS IN THE
DISTRIBUTION OF ABOUT HALF OF THEIR CLAIMED CIRCULATION OF 25,000.  ON
MARCH 25, 1960, PETITIONERS DEPOSITED 405 COPIES OF THEIR PUBLICATIONS
FOR TRANSMISSION AS SECOND CLASS MAIL FROM ALEXANDRIA, VIRGINIA, TO
CHICAGO.  HOWEVER, THE ALEXANDRIA POSTMASTER, ACTING, APPARENTLY
WITHOUT NOTICE TO PETITIONERS, ON HIS BELIEF THAT THE MAGAZINES MIGHT
BE OBSCENE AND THEREFORE "NONMAILABLE" UNDER 18 U.S.C. SEC. 1461,
WITHHELD DELIVERY AND FORWARDED SAMPLES TO THE GENERAL COUNSEL OF THE
POST OFFICE DEPARTMENT.  ON APRIL 5 AND 7 THAT OFFICIAL NOTIFIED
PETITIONERS NOT ONLY THAT THE MAGAZINES WERE BEING WITHHELD FROM
DELIVERY BECAUSE OF HIS OPINION THAT THEY WERE NONMAILABLE, BUT ALSO
THAT NO FORMAL HEARING WOULD BE HELD SINCE AN INSUFFICIENT MONETARY
VALUE WAS INVOLVED.  SHORTLY THEREAFTER, ON APRIL 11, 1960, PETITIONERS
REQUESTED A POST OFFICE HEARING, AND ALSO SOUGHT INJUNCTIVE RELIEF IN
THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AGAINST THIS STOPPAGE
OF THEIR MAILING.  ON THE SAME DAY THE POST OFFICE JUDICIAL OFFICER
REVERSED THE GENERAL COUNSEL AND ORDERED A HEARING, AND THEREAFTER THE
DISTRICT COURT REFUSED TEMPORARY RELIEF.  ON APRIL 21, AFTER PLEADINGS
HAD BEEN FILED, THE HEARING WAS BEGUN BEFORE THE JUDICIAL OFFICER.  ON
APRIL 25 PETITIONERS' INJUNCTION SUIT WAS DISMISSED ON THE CONDITION
THAT THEY MIGHT SEEK FURTHER RELIEF IF FINAL ADMINISTRATIVE ACTION WAS
NOT FORTHCOMING BY APRIL 28.  ON APRIL 28, ONE MONTH AND THREE DAYS
AFTER THE MAILING, THE JUDICIAL OFFICER HANDED DOWN HIS OPINION HOLDING
THE MAGAZINES OBSCENE AND NONMAILABLE, THUS OPENING PETITIONERS' WAY
INTO COURT. 

ON MAY 13, PETITIONERS FILED THE COMPLAINT NOW BEFORE US, ALLEGING
THAT THE MAGAZINES WERE NOT OBSCENE, THAT RESPONDENT'S ACTION IN
WITHHOLDING THEM FROM THE MAILS WAS "UNLAWFUL AND INEQUITABLE ...
CALCULATED  ...  TO CENSOR AND HARASS PLAINTIFFS AND  ...  A PRIOR
RESTRAINT DESIGNED TO DEPRIVE THE PLAINTIFFS OF THEIR RIGHTS UNDER THE
FIRST AMENDMENT  ...  ," AND REQUESTING TEMPORARY AND PERMANENT
INJUNCTIVE RELIEF.  PETITIONERS THEN MOVED FOR SUMMARY JUDGMENT,
ARGUING, INTER ALIA, THAT "THE POST OFFICE DEPARTMENT HELD A TIME
CONSUMING HEARING, THE PRODUCT OF WHICH WAS AN ORDER CONTRARY TO THE
ESTABLISHED LAW OF THE UNITED STATES  ...  .  THIS AMOUNTS TO THE MOST
OBNOXIOUS AND UNCONSTITUTIONAL CENSORSHIP.  THE PRINCIPAL EFFECT OF THE
ADMINISTRATIVE HEARING ...  IS TO DELAY ACTION OF THIS COURT  ...  .
PLAINTIFFS ASSERT THAT THE POST OFFICE HAS CONDUCTED AN EX PARTE
ADMINISTRATIVE PRIOR RESTRAINT TREADING UPON AN AREA OF CONSTITUTIONAL
SENSITIVITY APART FROM THE SUBSTANTIVE PROBLEMS OF DETERMINING WHETHER
OR NOT THE MAGAZINES ARE OBSCENE  ...  .  FURTHER, PLAINTIFFS ARGUE
THAT THE ENTIRE CIVIL PROCEDURE FOLLOWED BY THE POST OFFICE BASED UPON
A CRIMINAL STATUTE RAISES DOUBTS OF CONSTITUTIONALITY."  RESPONDENT,
TOO, MOVED FOR SUMMARY JUDGMENT.  HIS MOTION WAS GRANTED AND THE
COMPLAINT DISMISSED WITHOUT OPINION.  THE COURT OF APPEALS AFFIRMED,
HOLDING THE MAGAZINES OBSCENE. 

IN ADDITION TO THE QUESTION WHETHER THE PARTICULAR MATTER IS OBSCENE,
THE POST OFFICE ORDER RAISES INSISTENT QUESTIONS ABOUT THE VALIDITY OF
THE WHOLE PROCEDURE WHICH GAVE RISE TO IT, VITAL TO THE ORDERLY
DEVELOPMENT OF THIS BODY OF LAW AND ITS ADMINISTRATION.  WE RISK
EROSION OF FIRST AMENDMENT LIBERTIES UNLESS WE TRAIN OUR VIGILANCE UPON
THE METHODS WHEREBY OBSCENITY IS CONDEMNED NO LESS THAN UPON THE
STANDARDS WHEREBY IT IS JUDGED.  MARCUS V. SEARCH WARRANT, 367 U.S.
717; KINGSLEY BOOKS, INC., V. BROWN, 354 U.S. 436; SEE ALSO SMITH V.
CALIFORNIA, 361 U.S. 147.  QUESTIONS OF PROCEDURAL SAFEGUARDS LOOM
LARGE IN THE WAKE OF AN ORDER SUCH AS THE ONE BEFORE US.  AMONG THEM
ARE:  (A) WHETHER CONGRESS CAN CLOSE THE MAILS TO OBSCENITY BY ANY
MEANS OTHER THAN PROSECUTION OF ITS SENDER; (B) WHETHER CONGRESS, IF IF
CAN AUTHORIZE EXCLUSION OF MAIL, CAN PROVIDE THAT OBSCENITY BE
DETERMINED IN THE FIRST INSTANCE IN ANY FORUM EXCEPT A COURT, AND (C)
WHETHER, EVEN IF CONGRESS COULD SO AUTHORIZE ADMINISTRATIVE CENSORSHIP,
IT HAS IN FACT CONFERRED UPON POSTAL AUTHORITIES ANY POWER TO EXCLUDE
MATTER FROM THE MAILS UPON THEIR DETERMINATION OF ITS OBSCENE
CHARACTER.  (FN2) 

LOWER COURTS AND JUDGES HAVE BEEN TROUBLED BY THESE QUESTIONS, (FN3)
BUT THIS COURT HAS NOT HAD OCCASION TO DECIDE THEM.  AT LEAST QUESTION
(C) IS BEFORE US NOW.  (FN4)  IT SURPASSES IN GENERAL SIGNIFICANCE EVEN
THE IMPORTANT ISSUE OF THE STANDARDS FOR JUDGING THIS MATERIAL'S
"MAILABILITY."  MOREOVER, DEALING WITH THE CASE ON THIS GROUND INVOLVES
LESS CONSTITUTIONAL DIFFICULTY THAN INHERES IN OTHERS.  THE CONCLUSION
THAT THE POSTMASTER GENERAL IS ACTING ULTRA VIRES BECAUSE CONGRESS HAS
NOT GRANTED THE POWER WHICH HE HERE ASSERTS, WHILE GREATLY INFLUENCED
BY CONSTITUTIONAL DOUBTS, DOES NOT REQUIRE A DECISION AS TO WHETHER ANY
ESTABLISHMENT OF ADMINISTRATIVE CENSORSHIP COULD BE CONSTITUTIONAL. 
HANNEGAN V. ESQUIRE, INC., 327 U.S. 146; KENT V. DULLES, 357 U.S. 116. 
(FN5) 

MR. JUSTICE HOLMES HAS SAID:  "THE UNITED STATES MAY GIVE UP THE POST
OFFICE WHEN IT SEES FIT, BUT WHILE IT CARRIES IT ON THE USE OF THE
MAILS IS ALMOST AS MUCH A PART OF FREE SPEECH AS THE RIGHT TO USE OUR
TONGUES, AND IT WOULD TAKE VERY STRONG LANGUAGE TO CONVINCE ME THAT
CONGRESS EVER INTENDED TO GIVE SUCH A PRACTICALLY DESPOTIC POWER TO ANY
ONE MAN."  MILWAUKEE PUBLISHING CO. V. BURLESON, 255 U.S. 407, 437
(DISSENTING OPINION). 

WHETHER CONGRESS, BY ITS ENACTMENT OR AMENDMENT OF 18 U.S.C. SEC.
1461 (A PART OF THE CRIMINAL CODE), HAS AUTHORIZED THE POSTMASTER
GENERAL TO CENSOR OBSCENITY, IS OUR PRECISE QUESTION.  THE GOVERNMENT
RELIES UPON NO OTHER PROVISION TO SUPPORT THE CONSTITUTIONALLY
QUESTIONABLE POWER OF ADMINISTRATIVE CENSORSHIP OF THIS MATERIAL.  THAT
POWER IS INFERRED FROM THE DECLARATION THAT EVERY ITEM PROSCRIBED IN
SEC. 1461 IS "NONMAILABLE MATTER AND SHALL NOT BE CONVEYED IN THE MAILS
OR DELIVERED FROM ANY POST OFFICE OR BY ANY LETTER CARRIER."  EVEN
GRANTING THAT THESE WORDS ON THEIR FACE PERMIT A CONSTRUCTION ALLOWING
THE POST OFFICE THE POWER IT ASSERTS, THEIR USE IN A CRIMINAL STATUTE,
THEIR LEGISLATIVE HISTORY, AND THE CONTRAST WITH THE WORDS AND HISTORY
OF OTHER PROVISIONS DEALING WITH SIMILAR PROBLEMS, RAISE THE MOST
SERIOUS DOUBT THAT SO IMPORTANT AND SENSITIVE A POWER WAS GRANTED BY SO
PERFUNCTORY A PROVISION.  THE AREA OF OBSCENITY IS HONEYCOMBED WITH
HAZARDS FOR FIRST AMENDMENT GUARANTIES, AND THE GRAVE CONSTITUTIONAL
QUESTIONS WHICH WOULD BE RAISED BY THE GRANT OF SUCH A POWER SHOULD NOT
BE DECIDED WHEN THE RELEVANT MATERIALS ARE SO AMBIGUOUS AS TO WHETHER
ANY SUCH GRANT EXISTS. 
I. 

THE ORIGIN OF SEC. 1461 IS BRIEFLY TOLD.  (FN6)  IT WAS THE TAG END
OF A BILL DRAWN IN 1865 TO MEET POST OFFICE REQUESTS FOR VARIOUS
ADMINISTRATIVE CHANGES.  ITS FIRST VERSION READ: 

"THAT NO OBSCENE BOOK, PAMPHLET, PICTURE, PRINT, OR OTHER PUBLICATION
OF A VULGAR AND INDECENT CHARACTER, SHALL BE ADMITTED INTO THE MAILS OF
THE UNITED STATES; BUT ALL SUCH OBSCENE PUBLICATIONS DEPOSITED IN OR
RECEIVED AT ANY POST OFFICE, OR DISCOVERED IN THE MAILS, SHALL BE
SEIZED AND DESTROYED, OR OTHER WISE DISPOSED OF, AS THE POSTMASTER
GENERAL SHALL DIRECT.  AND ANY PERSON OR PERSONS WHO SHALL DEPOSIT OR
CAUSE TO BE DEPOSITED IN ANY POST OFFICE OR BRANCH POST OFFICE OF THE
UNITED STATES, FOR MAILING OR FOR DELIVERY, AN OBSCENE BOOK, PAMPHLET,
PICTURE, PRINT, OR OTHER PUBLICATION, KNOWING THE SAME TO BE OF A
VULGAR AND INDECENT CHARACTER, SHALL BE DEEMED GUILTY OF A MISDEMEANOR,
AND, BEING DULY CONVICTED THEREOF, SHALL, FOR EVERY SUCH OFFENSE, BE
FINED NOT MORE THAN $500, OR IMPRISONED NOT MORE THAN ONE YEAR, OR
BOTH, ACCORDING TO THE CIRCUMSTANCES AND AGGRAVATIONS OF THE OFFENSE." 

IN OFFERING THIS PROPOSAL, CHAIRMAN COLLAMER OF THE SENATE POST
OFFICE COMMITTEE TOOK PAINS TOPOINT OUT THAT IT "MAY BE LIABLE TO SOME
OBJECTION  ...  .  I AM NOT PERHAPS ENTIRELY SATISFIED WITH IT," AND
SENATOR REVERDY JOHNSON, CONCERNED ABOUT POSTMASTERS BREAKING SEALS,
IMMEDIATELY TOOK UP CHAIRMAN COLLAMER'S SUGGESTION THAT ONLY THE PENAL
PROVISION BE ADOPTED.  CHAIRMAN COLLAMER, AGREEING THAT THE NONPENAL
CLAUSE "MIGHT BE MADE A PRECEDENT FOR UNDERTAKING TO GIVE A POSTMASTER
A SORT OF CENSORSHIP OVER THE MAILS," SAID HE WOULD BE AS HAPPY IF IT
WERE DROPPED.  SENATOR JOHNSON THEN MOVED TO STRIKE IT:  "IT WOULD BE
ESTABLISHING A VERY BAD PRECEDENT TO GIVE AUTHORITY TO POSTMASTERS TO
TAKE ANYTHING OUT OF THE MAIL."  HE ACKNOWLEDGED THAT MUCH MATERIAL IS
SENT UNCOVERED, BUT THOUGHT THE PENAL PROVISION SUFFICIENT TO MEET THE
EVIL.  HOWEVER, SENATOR SHERMAN OBSERVED: 

"I WOULD MUCH PREFER, IF THE SENATOR WOULD BE SATISFIED, WITH SIMPLY
STRIKING OUT THE SECOND CLAUSE OF THE FIRST SENTENCE.  I THINK THE
PROHIBITION AGAINST PUBLICATIONS OF THIS CHARACTER GOING INTO THE MAILS
OUGHT TO STAND.  WE ARE WELL AWARE THAT MANY OF THESE PUBLICATIONS ARE
SENT ALL OVER THE COUNTRY FROM THE CITY OF NEW YORK WITH THE NAMES OF
THE PARTIES SENDING THEM ON THE BACKS, SO THAT THE POSTMASTERS WITHOUT
OPENING THE MAIL MATTER MAY KNOW THAT IT IS OFFENSIVE MATTER, INDECENT
AND IMPROPER TO BE CARRIED IN THE PUBLIC MAILS.  I THINK, THEREFORE,
THE LEGISLATIVE PROHIBITION AGAINST CARRYING SUCH MATTER WHEN IT IS
KNOWN TO THE POSTMASTERS SHOULD BE LEFT.  PROBABLY THE SECOND CLAUSE
ALLOWING HIM TO OPEN MAIL MATTER SHOULD BE STRUCK OUT  ...  ." 

SENATOR JOHNSON ACQUIESCED AND THE BILL WAS THEN PASSED, READING: 

"THAT NO OBSCENE BOOK, PAMPHLET, PICTURE, PRINT, OR OTHER PUBLICATION
OF A VULGAR AND INDECENT CHARACTER, SHALL BE ADMITTED INTO THE MAILS OF
THE UNITED STATES; ANY PERSON OR PERSONS  ... ."  CONG. GLOBE, 38TH
CONG., 2D SESS. 660-661 (1865); 13 STAT. 507. 

THERE ARE TWO POSSIBLE CONSTRUCTIONS OF SEC. 1461 ON THE BASIS OF
THIS BRIEF SENATE DISCUSSION.  ONE POSSIBILITY IS THAT SHORT OF
BREAKING SEALS, (FN7) THE POSTMASTERS COULD REMOVE MATTER WHICH THEY
THOUGHT FROM ITS FACE OR THE NAME OF ITS SENDER TO BE OBSCENE.  THE
SECOND CONSTRUCTION IS THAT POSTMASTERS COULD REMOVE MATTER BUT ONLY TO
TURN IT OVER TO THE APPROPRIATE AUTHORITIES AS THE PROPOSED SUBJECT OF
A CRIMINAL PROSECUTION - AN ALSO OF COURSE AFTER THAT MATERIAL HAD BEEN
DETERMINED, IN A CRIMINAL TRIAL OF ITS SENDER, TO BE OBSCENE.  SUPPORT
FOR THIS SECOND CONSTRUCTION IS FOUND NOT ONLY IN THE BRIEF 1865 SENATE
CONSIDERATION ITSELF BUT ALSO IN AN 1888 STATUTE AMENDING SEC. 1461,
AND ENACTING A SECTION BANNING MATERIAL WITH OBSCENE MATTER ON ITS FACE
AND - UNLIKE SEC. 1461 - EXPLICITLY PROVIDING THAT IT "SHALL BE
WITHDRAWN FROM THE MAILS UNDER SUCH REGULATIONS AS THE POSTMASTER
GENERAL SHALL PRESCRIBE."  (FN8)

THE 1865 SENATE DISCUSSION IS NOT UNAMBIGUOUS, BUT I CANNOT SUPPOSE
THAT SENATOR JOHNSON - WHO HAD ALREADY NOTED HIS AWARENESS THAT MUCH
OBSCENE MATERIAL WAS DISCOVERABLE WITHOUT BREAKING SEALS, AND EVEN SO,
HIS DETERMINED OPPOSITION TO ITS BEING STOPPED - WOULD HAVE ACCEPTED
SENATOR SHERMAN'S SUGGESTION HAD HE UNDERSTOOD IT TO MEAN MORE THAN
THAT THE POST OFFICE COULD STOP OBVIOUSLY QUESTIONABLE MATTER FOR THE
PURPOSE OF TRANSMITTING IT TO PROSECUTING AUTHORITIES, COULD STOP
MATTER ALREADY HELD OBSCENE IF IT WERE SENT AGAIN, AND COULD
INVESTIGATE MATTER SENT BY PERSONS PREVIOUSLY CONVICTED AND, IF THE
MATTER WERE FOUND VIOLATIVE, COULD PRESENT IT TO THE PROSECUTING
AUTHORITIES.  BELIEVE THIS IS THE CORRECT CONSTRUCTION OF THE 1865
ENACTMENT.  BUT AT LEAST IT IS ARGUABLY CORRECT, AND NECESSARY IF WE
ARE TO AVOID THE SECTION'S PROBABLE CONSTITUTIONAL INFIRMITY (FN9) (SEE
NEAR V. MINNESOTA, 283 U.S. 697; SUMMERFIELD V. SUNSHINE BOOK CO., 95
U.S. APP. D.C. 169, 221 F.2D 42) IF CONSTRUED AS A PROVISION ALLOWING
THE POSTMASTER GENERAL TO EXCLUDE ALL MATTER SENT BY A PERSON WHO HAD
PREVIOUSLY SENT VIOLATIVE MATTER.  SUCH AN EXCLUSION BY ATTAINT COULD
NOT BE JUSTIFIED BY THE "HOARY DOGMA  ...  THAT THE USE OF THE MAILS IS
A PRIVILEGE ON WHICH THE GOVERNMENT MAY IMPOSE SUCH CONDITIONS AS IT
CHOOSES, FOR THAT HAS LONG SINCE EVAPORATED."  ROTH V. UNITED STATES,
354 U.S. 476, 504 (DISSENTING OPINION); HANNEGAN V. ESQUIRE, INC., 327
U.S., AT 156; SPEISER V. RANDALL, 357 U.S. 513, 518. 

SUBSEQUENT DEVELOPMENTS CONCERNING THE REMOVAL OF MATTER FROM THE
MAILS REVEAL A NEARLY CONTEMPORANEOUS STRONG DISTASTE FOR AND AWARENESS
OF CONSTITUTIONAL DOUBTS ABOUT NONJUDICIAL CENSORSHIP, SUCH AS REFLECTS
MEANINGFULLY ON THE AMBIGUITY SURROUNDING SEC. 1461'S ENACTMENT.  THAT
AMBIGUITY HAS PERSISTED THROUGHOUT SEC. 1461'S HISTORY OF AMENDMENT,
RECONSIDERATION, AND CODIFICATION.  IN THE CONCURRENT HISTORY OF
CONGRESS' HANDLING OF RELATED PROBLEMS, THERE HAS BEEN IN EACH INSTANCE
EITHER A CLEAR GRANT OF POWER TO THE POSTMASTER GENERAL OR, FOR MATTERS
AS INEXTRICABLY INTERTWINED WITH THE FIRST AMENDMENT AS OBSCENITY, A
PROVISION FOR JUDICIAL RATHER THAN ADMINISTRATIVE PROCESS.  NOTHING IS
FOUND TO SUGGEST THAT ONE SHOULD RESOLVE THE AMBIGUITY IN 1865 TO FIND
A GRANT OF THE POWER OF ADMINISTRATIVE CENSORSHIP.  COMPARE LEWIS
PUBLISHING CO. V. MORGAN, 229 U.S. 288, 311. 

IN 1868, IN CONSIDERING A PROVISION MAKING IT UNLAWFUL TO DEPOSIT
LETTERS OR CIRCULARS CONCERNING LOTTERIES, HOUSE CONFEREES STRUCK A
SENATE PROPOSAL WHICH WOULD HAVE AUTHORIZED POSTMASTERS TO REMOVE FROM
THE MAIL AND DEPOSIT IN DEAD LETTER OFFICES ANY LETTERS OR CIRCULARS
THOUGHT TO CONCERN LOTTERIES.  HOUSE POSTAL COMMITTEE CHAIRMAN
FARNSWORTH EXPLAINED "WE THOUGHT THAT WAS A DANGEROUS POWER TO CONFER
UPON POSTMASTERS, AND THEREFORE WE HAVE STRICKEN IT OUT.  THAT SECTION
PROVIDES THAT IT SHALL BE UNLAWFUL TO DEPOSIT IN THE MAILS  ...  WHICH
WE THOUGHT WOULD BE A WISE PROVISION.  BUT WE THOUGHT IT WOULD NOT BE
WISE TO GIVE POSTMASTERS THIS EXTRAORDINARY POWER TO BE EXERCISED UPON
A MERE SUSPICION."  CONG. GLOBE, 40TH CONG., 2D SESS. 4412 (1868). 
OPINIONS OF THE ATTORNEY GENERAL ADVISING AS TO THE POSTMASTERS'
AUTHORITY UNDER THIS LOTTERY PROVISION EMPHASIZED THE NECESSITY FOR
EXPLICIT LEGISLATIVE AUTHORIZATION TO WARRANT REMOVAL OF MATERIAL FROM
THE MAILS.  THOSE OPINIONS CITED EXAMPLES OF PROVISIONS CONTAINING SUCH
EXPRESS AUTHORIZATION BUT, SIGNIFICANTLY, DID NOT INCLUDE SEC. 1461 -
AN IMPORTANT OMISSION IN THE LIGHT OF THE OBSERVATION OF THE ATTORNEY
GENERAL THAT ASIDE FROM THE EXAMPLES HE GAVE "IF THERE ARE OTHER
PROVISIONS PERMITTING A DETENTION OF LETTERS BY A POSTMASTER, THEY HAVE
ESCAPED MY ATTENTION.  IT IS BELIEVED THAT, AT LEAST, THERE ARE NO
OTHERS AFFECTING THE SUBJECT OF THE PRESENT INQUIRY."  FURTHERMORE, IN
DESCRIBING THE AUTHORIZATIONS HE DID FIND, THE ATTORNEY GENERAL SAID:
"IT WILL BE SEEN THAT NONE OF THESE AUTHORIZE WHAT CAN PROPERLY BE
CALLED A 'SEIZURE' OF ANY SUSPECTED LETTERS BY A POSTMASTER, BECAUSE,
PROBABLY, HE IS NOT DEEMED THE PROPER FUNCTIONARY TO BRING TO TRIAL AND
PUNISHMENT THOSE VIOLATING THE POSTAL LAWS."  (FN10) 

IN 1872, SEC. 1461 WAS AMENDED AS PART OF A CODIFICATION OF POSTAL
LEGISLATION.  THE AMENDMENT ADDED A PROSCRIPTION AGAINST THE MAILING OF
"ANY LETTER UPON THE ENVELOPE OF WHICH, OR POSTAL CARD UPON WHICH
SCURRILOUS EPITHETS MAY HAVE BEEN WRITTEN OR PRINTED, OR DISLOYAL
DEVICES PRINTED OR ENGRAVED  ...  ."  17 STAT. 302.  (FN11)  THE
17 STAT. 598.  THAT STATUTE ESTABLISHED PENALTIES FOR DEALING IN OR IN
ANY WAY PUBLISHING OBSCENITY OR ANY ARTICLE OF AN IMMORAL NATURE IN
AREAS UNDER FEDERAL JURISDICTION, EXPANDED THE LIST OF ITEMS NOT TO BE
MAILED TO INCLUDE MATTER INTENDED TO AID THE PROCURING OF ABORTION, AND
BANNED THE IMPORTATION OF ALL SUCH ITEMS.  WHEN THE BILL CAME TO THE
FLOOR, SENATOR CASSERLY OBJECTED TO THE PROVISION ALLOWING CUSTOMS
OFFICERS TO SEIZE PROHIBITED ITEMS: "I DO NOT KNOW WHETHER IT CAN BE
LEFT TO OFFICERS OF THE CUSTOM-HOUSE TO DETERMINE WITH SAFETY WHAT KIND
OF LITERATURE OR WHAT SORT OF MATTER IS TO BE ADMITTED."  CONG. GLOBE,
42D CONG., 3D SESS. 1436 (1873).   THE BILL WAS ACCORDINGLY CHANGED TO
AUTHORIZE CUSTOMS OFFICERS SIMPLY TO DETAIN THE ITEMS, AND THEM PROCEED
IN A FEDERAL COURT TO CONDEMN THEM, IF THE FEDERAL JUDGE WERE SATISFIED
THAT THEY MUST BE CONDEMNED.  ID., AT 1525.  THERE IS NO SUGGESTION
THAT CUSTOMS OFFICERS WERE THOUGHT TO BE LESS TRUSTWORTHY THAN POSTAL
OFFICERS; (FN12) THIS INSISTENCE UPON JUDICIAL PROCEEDINGS SHOWS
PLAINLY THE CONGRESSIONAL AVERSION TO ADMINISTRATIVE CENSORSHIP. 

THE COMSTOCK BILL RECEIVED BUT SCANT AND HASTY CONSIDERATION.  (FN13)
AS PASSED, ITS LANGUAGE WAS SUSCEPTIBLE OF A READING WHICH WOULD FAIL
TO PENALIZE THE MAILING OF OBSCENE OR INDECENT LITERATURE, AND REACH
ONLY ACTUAL ABORTIFACIENTS.  CLOSING THIS INADVERTENT GAP WAS THE SOLE
PURPOSE (FN14) OF AN 1876 AMENDMENT, 19 STAT. 90, WHICH MADE SEVERAL
LANGUAGE CHANGES; AMONG THEM, THE SUBSTITUTION OF THE WORDS OF WHICH
THE GOVERNMENT MAKES SO MUCH - "DECLARED TO BE NON-MAILABLE MATTER,
WHICH SHALL NOT BE CONVEYED IN THE MAILS, NOR DELIVERED FROM ANY POST
OFFICE NOR BY ANY LETTER-CARRIER" - FOR THE MORE CURSORY "WHICH SHALL
NOT BE CARRIED IN THE MAIL."  MOREOVER, THE 1876 DISCUSSION EVINCES THE
UNDERSTANDING THAT THE ONLY OBSCENE MATERIALS REMOVABLE BY THE POST
OFFICE WERE THOSE WHICH WERE TO BE SUBMITTED AS, OR WHICH ALREADY HAD
BEEN, THE SUBJECT OF A CRIMINAL PROSECUTION.  THE MANAGER OF THE
AMENDMENT ASSURED THE HOUSE:  "NOR, SIR, DOES THIS BILL GIVE ANY RIGHT
OT ANY POSTMASTER TO OPEN OR TO INTERFERE WITH ANYBODY'S MAIL.  IT IS
LIKE ANYTHING ELSE, BEFORE YOU CAN CONVICT, YOU MUST OFFER AND MAKE
PROOF."  DURING THE DEBATE A DIFFERENT SPEAKER SAID:  "WHENERVER A JURY
IN ANY LOCALITY IN THE COUNTRY SHALL FIND THAT A PAPER CONTAINS MATTER
WHICH MAY BE DEVOTED TO A PURPOSE WHICH THEY DEEM IMMORAL - NOT ONLY
INDECENT, BUT IMMORAL - THE JURY MAY CONVICT THE MAN WHO SENDS THE
PAPER OR THE MAN WHO RECEIVES IT BY MAIL, AND THE POSTMASTER IS
AUTHORIZED TO EXCLUDE THAT NEWSPAPER FROM THE MAIL."  A THIRD SPEAKER,
IN URGING THAT THE WORD "SCURRILOUS" BE REMOVED, WARNED:  "I DO NOT
OBJECT TO THE PURIFICATION OF THE MAILS, BUT I WOULD LIKE THE COMMITTEE
WHEN THEY RECONSIDER THIS BILL NOT TO GO TOO FAR IN GIVING POSTMASTERS
DISCRETION."  ANOTHER CONGRESSMAN FEARED THAT THE SEVERITY OF THE
PENALTIES WOULD BE UNWILLING TO CONVICT.  THUS THE TENOR OF THE ENTIRE
DEBATE REFLECTED THE PREMISE THAT SEC. 1461 HAD ONLY A CRIMINAL
APPLICATION.  NO ONE SUGGESTED THAT IT ALSO AUTHORIZED ADMINISTRATIVE
CENSORSHIP.  4 CONG. REC. 695-696.  (FN15)  AND SEE 8 CONG. REC. 697
(1879). 

ESPECIALLY SIGNIFICANT IN POINTING UP THE PURELY PENAL APPLICATION OF
SEC. 1461 ARE THE LEGISLATIVE EVENTS OF 1888.  AN AMENDMENT OF BUT A
FEW MONTHS' DURATION CHANGED THE LAW ON SUCH POSTAL CRIMES AS
COUNTERFEITING MONEY ORDERS.  IT INCLUDED A PROVISION PENALIZING THE
MAILING OF ANY MATTER UPON THE ENVELOPE OR OUTSIDE COVER OF WHICH WAS
INDECENT, SCURRILOUS, THREATENING, ETC., LANGUAGE.  (FN16)  THE
PROVISION WAS PROMPTLY AMENDED IN THE SAME SESSION BECAUSE "THERE WAS A
SUSPICION THAT AN IMPLIED POWER WAS GIVEN TO POSTMASTERS TO OPEN
LETTERS.  OF COURSE THERE WAS NO SUCH INTENTION, AND THIS NEW BILL
ELIMINATES THAT OBJECTIONABLE FEATURE  ...  ."  19 CONG. REC. 8189. 
(FN17) 

BUT EVEN MORE SIGNIFICANTLY, THE NEW ENACTMENT TRANSFERRED TO A NEW
1876 VERSION (19 STAT. 90), HAD REACHED "EVERY LETTER UPON THE ENVELOPE
OF WHICH, OR POSTAL CARD UPON WHICH, INDECENT, LEWD, OBSCENE, OR
LASCIVIOUS DELINEATIONS, EPITHETS, TERMS, OR LANGUAGE MAY BE WRITTEN OR
PRINTED,"; AND SEC. 1463, INSTEAD OF MERELY DECLARING THAT THE LISTED
MATTER WAS NONMAILABLE AND WAS NOT TO BE CONVEYED OR DELIVERED,
PROVIDED THAT THOSE ITEMS "SHALL BE WITHDRAWN FROM THE MAILS UNDER SUCH
REGULATIONS AS THE POSTMASTER-GENERAL SHALL PRESCRIBE  ... ."  IT IS
STRANGE, I THINK, THAT SEC. 1461 - AMENDED AT THE SAME TIME AS SEC.
1463 WAS ENACTED - WAS NOT AMENDED ALSO TO INCLUDE AN EXPLICIT
PROVISION FOR WITHDRAWAL FROM THE MAILS, IF AUTHORITY FOR WITHDRAWAL
HAD BEEN CONGRESS' INTENTION.  BUT CONGRESS DID NOT CONTEMPLATE ANY
GENERAL ADMINISTRATIVE CENSORSHIP OF OBSCENITY.  THE HOUSE DISCUSSION
EXPRESSED THE AGREEMENT THAT BESIDES THE POWER TO PUNISH, THERE SHOULD
BE NO MORE THAN THE MOST LIMITED POST OFFICE POWER TO STOP MAIL - AND
SEC. 1463 STATES THAT LIMITATION; AND THE SENATE DEBATE, FOCUSING
ALMOST ENTIRELY UPON HOW SEVERE THE PENALTIES SHOULD BE, REINFORCED THE
RESTRICTIONS UPON THE POSTMASTERS AND UNDERLINED THAT SEC. 1461 IS
EXCLUSIVELY PENAL.  SEE 19 CONG. REC. 7660-7662, 8189.    THE LAST
CONGRESSIONAL DEALING WITH SEC. 1461 WHICH IS PERTINENT TO OUR INQUIRY
OCCURRED IN 1909, WHEN AGAIN THAT SECTION WAS AMENDED, THIS TIME TO BAR
MORE ABORTIFACIENTS AND "EVERY LETTER, PACKET, OR PACKAGE, OR OTHER
MAIL MATTER CONTAINING ANY FILTHY, VILE, OR INDECENT THING."  (FN18)
THOUGH COMMITTEE REPORTS ARE UNENLIGHTENING, THE HOUSE DISCUSSION MAKES
PLAIN THAT THE CHANGES WERE INTENDED TO REVERSE THE LIMITATIONS STATED
IN SWEARINGEN V. UNITED STATES, 161 U.S. 446, THAT THE STATUTE APPLIED
ONLY TO "THAT FORM OF IMMORALITY WHICH HAS RELATION TO SEXUAL
IMPURITY," AND THAT ITS WORDS HAD "THE SAME MEANING AS IS GIVEN THEM AT
COMMON LAW IN PROSECUTIONS FOR OBSCENE LIBEL."  161 U.S., AT 451; 42
CONG.  REC. 995-999, 43 CONG. REC. 283-284.  (FN19)  THE TWO BRIEF
HOUSE DISCUSSIONS SUGGEST THAT THERE WERE MEMBERS WHO DID BELIEVE THAT
THE POST OFFICE HAD SOME POWER TO REMOVE OBSCENE MAIL, EVEN APART FROM
PRESENTING IT FOR CRIMINAL PROSECUTION; IT WAS ANALOGIZED TO FRAUDULENT
MATTER.  BUT NOTHING CHARACTERIZES THE DISCUSSION SO MUCH AS ITS
AMBIGUITY, AND ITS CONCERN LEST THE POST OFFICE ACQUIRE POWERS WHOSE
EXERCISE WOULD AMOUNT TO CENSORSHIP.  SEE 42 CONG. REC. 995-998.  AND
SEE 101 CONG. REC. 3804, 7798, 8241-8242 (1955). 

                               II. 

1461 TOWARDS AUTHORIZING POST OFFICE CENSORSHIP.  FIVE OTHER CRIMINAL
STATUTES PROHIBITING THE INTRODUCTION OF VARIOUS MATTER INTO THE MAILS
EITHER CONTAIN WITHIN THEMSELVES OR HAVE DIRECT COUNTERPARTS IN THE
POSTAL LAWS WHICH CONTAIN EXPLICIT AUTHORIZATIONS TO THE POSTMASTER
GENERAL TO REMOVE OR RETURN SUCH MATTER.  (FN20) IN SHARP CONTRAST,
SEC. 1461 - ITSELF SILENT AS TO SANCTIONS EXCEPT FOR THE PROVISION OF
CRIMINAL PENALTIES - HAS NO COUNTERPART IN THE POSTAL LAWS.  IT IS
MENTIONED ONCE IN THE RECODIFICATION OF 1960 - IN SEC. 4001(A), A
NONMAILABLE AND WHICH, THE COMMITTEE REPORT INDICATES AND THE FLOOR
DISCUSSION AND REVISER'S NOTE ASSURE, WAS NOT INTENDED TO CHANGE
EXISTING LAW (FN21) - AMBIGUOUS THROUGHOUT. 

THE REMOVAL OF OBSCENE MATERIAL HAS NOT BEEN THE POST OFFICE'S ONLY
WEAPON AGAINST IT.  IN 1950, SEC. 4006 WAS ENACTED GRANTING SPECIAL
POWERS OVER THE MAIL OF ANY PERSON FOUND, TO THE POSTMASTER GENERAL'S
SATISFACTION, TO BE USING THE MAILS TO OBTAIN MONEY FOR OR TO BE
PROVIDING INFORMATION ABOUT ANY OBSCENE OR VILE ARTICLE OR THING:
POSTMASTERS COULD MARK MAIL SENT TO THAT PERSON "UNLAWFUL" AND RETURN
IT TO ITS SENDER; AND THEY COULD FORBID PAYMENT TO THAT PERSON OF ANY
MONEY ORDERS OR POSTAL NOTES, AND RETURN THE FUNDS TO THE SENDERS. 
(FN22)  THE CLARITY OF THE GRANT OF THESE POWERS IS NO LESS NOTEWORTHY
THAN THEIR SUBSEQUENT HISTORY.  IN 1956 THE POSTMASTER GENERAL SOUGHT
(FN23) AND OBTAINED THE POWER TO ENTER AN ORDER, PENDING THE
ADMINISTRATIVE PROCEEDING TO DETERMINE WHETHER SEC. 4006 SHOULD BE
INVOKED, UNDER WHICH ALL MAIL ADDRESSED TO THE RESPONDENT COULD BE
IMPOUNDED.  THE ORDER WAS TO EXPIRE AT THE END OF 20 DAYS UNLESS THE
POSTMASTER GENERAL SOUGHT, IN A FEDERAL DISTRICT COURT, AN ORDER
CONTINUING THE IMPOUNDING.  THE 20-DAY ORDER BY THE POSTMASTER GENERAL,
AND ITS EXTENSION BY A COURT, WERE TO ISSUE ONLY IF "NECESSARY TO THE
EFFECTIVE ENFORCEMENT OF SEC. 4006."  (FN24)  IN 1959, EXTENSIVE
HEARINGS WERE HELD IN THE HOUSE ON THE POST OFFICE'S REQUEST THAT THE
20-DAY PERIOD BE EXTENDED TO 45 DAYS, AND THAT THE STANDARD OF
NECESSITY BE CHANGED TO "PUBLIC INTEREST."  (FN25)  INSTEAD, WHAT WAS
ENACTED IN 1960 STRIPPED THE POSTMASTER GENERAL OF HIS POWER TO ISSUE
AN INTERIM ORDER FOR ANY PERIOD, AND DIRECTED HIM TO SEEK A TEMPORARY
RESTRAINING ORDER IN A FEDERAL DISTRICT COURT.  (FN26) 

CONGRESS GAVE FULL CONSIDERATION TO CENSORSHIP OF OBSCENE MATERIAL
WHEN IT DEALT WITH THE TARIFF ACT OF 1930.  PRIOR TO THAT YEAR, THE
CUSTOMS LAWS PROVIDED FOR THE EXCLUSION FROM THE UNITED STATES OF
OBSCENE WRITTEN MATTER, BUT REQUIRED RESORT IN THE FIRST INSTANCE TO A
FEDERAL DISTRICT COURT FOR A DETERMINATION OF THE MATTER'S OBSCENITY. 
(FN27)  IN THE COURSE OF THEIR WORK ON THE BILL, THE HOUSE WAYS AND
MEANS COMMITTEE ADDED LANGUAGE TO EXCLUDE SEDITIOUS AS WELL AS OBSCENE
MATERIAL, AND ALSO REPLACED THE JUDICIAL PROCEDURE WITH THE GENERALLY
APPLICABLE PROCEDURES FOR SEIZURE BY THE CUSTOMS OFFICERS, ENTAILING
JUDICIAL REVIEW ONLY AT THE INSTANCE OF A WOULD-BE IMPORTER.  SEE H.R.
REP. NO. 7, 71ST CONG., 1ST SESS., AT 160, 185, 190, 244-245.  IT WAS
IN THIS FORM THAT THE BILL PASSED THE HOUSE, AND WAS REPORTED BY THE
SENATE COMMITTEE, SEE S. REP. NO. 37, 71ST CONG., 1ST SESS. 60; 71
CONG. REC. 4458 (REMARKS OF SENATOR SMOOT), BUT ON THE SENATE FLOOR IT
RAN INTO STRONG EXPRESSIONS AGAINST CUSTOMS CENSORSHIP:  FEARS ABOUT
ADMINISTRATIVE DETERMINATIONS WERE ENHANCED BY FELT DIFFICULTIES IN
APPLYING THE STATUTE'S PROSCRIPTIONS TO PARTICULAR MATERIAL.  JUDICIAL
REVIEW WAS THOUGHT INSUFFICIENT, FOR THAT WOULD LEAVE THE INITIATIVE
FOR RESORT TO THE COURTS WITH THE PERSON SUBJECTED TO THE CENSORSHIP:
EXPENSE, INCONVENIENCE, AND PUBLIC EMBARRASSMENT WOULD, IT WAS
BELIEVED, RESULT IN UNREVIEWED ADMINISTRATIVE EXCLUSION.  SEE GENERALLY
71 CONG. REC. 4432-4439; 4445-4471.  IN SUPPORT OF THE IDEA THAT THE
INITIAL DECISION SHOULD BE MADE BY A COURT RATHER THAN A CUSTOMS
INSPECTOR, 72 CONG. REC. 5417-5423, SENATOR WALSH OF MONTANA SAID: 

"EVERYBODY OF RIGHT MIND WANTS TO PREVENT THE CIRCULATION OF SUCH
BOOKS AS THE SENATOR FROM UTAH HAS IN MIND.  THAT IS NOT THE POINT AT
ALL.  THOSE IMMORAL AND OBSCENE AND INDECENT PUBLICATIONS ARE PRINTED
IN THIS COUNTRY, AS WELL AS ABROAD  ...  .  HOW DO WE REACH THE
SITUATION?  WE MAKE IT A CRIME TO CIRCULATE THOSE BOOKS IN THIS
COUNTRY, AND WE PUNISH THAT OFFENSE THE SAME AS WE PUNISH EVERY OTHER
OFFENSE, BY PROPER PROSECUTION.  LIKEWISE, WE PROHIBIT THE CIRCULATION
OF MATERIAL OF THAT KIND IN THE MAILS, AND IF ANYBODY CIRCULATES IT IN
THE MAILS HE BECOMES LIABLE TO INDICTMENT AND PROSECUTION.  THAT IS THE
WAY WE ENDEAVOR TO DEAL WITH THAT THING."  72 CONG. REC. 5419.  SEE
ALSO ID., AT 5425, 5430.  BUT COMPARE THE REMARKS OF SENATORS COPELAND,
CUTTING, AND FLETCHER, 71 CONG.  REC., AT 4435, 4450. 

HE THEN OFFERED AN AMENDMENT TO IMPOSE CRIMINAL SANCTIONS FOR
IMPORTING PROSCRIBED MATTER, AND TO REQUIRE THE MATTER'S DETENTION BY
THE CUSTOMS FOR TRANSMITTAL TO THE APPROPRIATE AUTHORITIES TO COMMENCE
JUDICIAL FORFEITURE PROCEEDINGS.  ID., AT 5421.  HOWEVER, THERE WERE
MISGIVINGS ABOUT THE CRIMINAL SANCTION; IT WAS THOUGHT BY SOME TO
JEOPARDIZE BORDERLINE ACTIVITY TOO SERIOUSLY.  ID., AT 5423-5431.  THE
SENATE PASSED A PROVISION CORRESPONDING TO SENATOR WALSH'S AMENDMENT,
BUT WITHOUT A CRIMINAL SANCTION, 72 CONG. REC. 5501-5520, AND THIS WAS
ENACTED INTO LAW.  THUS THE HOUSE COMMITTEE'S ATTEMPT TO REVERT FROM
JUDICIAL TO ADMINISTRATIVE DETERMINATIONS IN THE INITIAL PHASE OF
CUSTOMS CENSORSHIP WAS EMPHATICALLY REBUFFED. 

                                             III. 

IT IS CLEAR THAT THE POST OFFICE HAS LONG PRACTICED ADMINISTRATIVE
CENSORSHIP OF ALLEGEDLY OBSCENE MAILINGS GENERALLY.  HOWEVER, THE
FORMAL REGULATIONS PRESCRIBING A PROCEDURE ARE NEW.  (FN28)  THE
PRACTICE WAS DESCRIBED IN 1952 BY THE SOLICITOR OF THE DEPARTMENT WHEN
TESTIFYING BEFORE A CONGRESSIONAL COMMITTEE: 

"WE HAVE AN INFORMAL PROCEDURE, WHICH, SO FAR, HASN'T BEEN CONSIDERED
OR TESTED OUT IN THE COURT, SO WE HAVE GOTTEN BY WITH IT SO FAR.  THAT
IS WHERE A POSTMASTER FINDS OBSCENE MATTER AT THE POINT OF ENTRY OF THE
MAIL INTO THE POST OFFICE, AND IF HE IS IN DOUBT AS TO WHETHER IT IS
GOOD OR BAD HE WILL SEND IT TO THE SOLICITOR'S OFFICE FOR A RULING  ...
." 

HE ALSO SAID: 

"IF WE HAD TO HOLD HEARINGS ON ALL OF THOSE, IF ANY COURT SHOULD EVER
DECIDE THAT THOSE HEARINGS ALSO COME UNDER THE ADMINISTRATIVE PROCEDURE
ACT, WE ARE JUST HOPELESSLY SUNK, THAT IS ALL; WE ARE JUST LOST. 

"THEY MAY, BUT THEY HAVE NEVER TAKEN US INTO COURT ON IT.  WE JUST
HOPE THAT WE GET BY WITH IT AS LONG AS WE CAN."  (FN29)  AND: 

"SOMETIMES YOU CAN GET FIVE PEOPLE TOGETHER, AND YOU CAN GIVE THEM
FIVE PIECES OF MAIL, AND ASK THEM TO MARK THEM, AND YOU WILL GET FIVE
DIFFERENT RESULTS, BECAUSE IN SOME CASES IT IS JUST ONE OF THOSE THINGS
THAT DEPENDS ON YOUR OWN PERSONAL IDEAS AND YOUR OWN BRINGING UP; IT
DEPENDS UPON HOW STRONGLY YOU FEEL ABOUT THINGS, AND THERE ARE SOME
TYPES OF THAT MATERIAL THAT YOU JUST CAN'T GET TWO PEOPLE TO AGREE ON
NO MATTER HOW REASONABLY AND HOW OBJECTIVELY THEY LOOK UPON IT.  IT IS
JUST AN HONEST DIFFERENCE OF OPINION.  WE EXPERIENCE IT ALL THE TIME,
SO WE HAVE OUR CONFERENCES, AND WE DECIDE WHAT IS GOING TO BE THE BEST
THING TO DO  ...  . 

     *     *         *         *         * 

"WE HAVE NO TROUBLE WITH PROSECUTIONS ON THINGS THAT ARE DEFINITELY
OBSCENE, BUT IT IS THIS MATERIAL THAT IS THIS WAY AND THAT WAY THAT IS
VERY, VERY DIFFICULT TO PROSECUTE."  HEARINGS BEFORE THE SELECT
COMMITTEE ON CURRENT PORNOGRAPHIC MATERIALS, HOUSE OF REPRESENTATIVES,
ON INVESTIGATION OF LITERATURE ALLEGEDLY CONTAINING OBJECTIONABLE
MATERIAL, 82D CONG., 2D SESS. 281, 282 (1952). 

IT ALSO IS CLEAR THAT THIS WAS NOT THE FIRST OR LAST OCCASION ON
WHICH THE POST OFFICE PRACTICE HAS BEEN BROUGHT TO THE ATTENTION OF A
CONGRESSIONAL COMMITTEE.  (FN30)  BUT THE REPORT OF THE 1952 SELECT
COMMITTEE, WHICH LISTED SEC. 1461 AS A CRIMINAL STATUTE, CERTAINLY DID
NOT DISPEL THE CONTINUING AMBIGUITY SURROUNDING THAT SECTION.  AND THE
REPORT SAID: 

"THERE ARE OTHER MEANS OF HANDLING THIS PROBLEM THAN BY THE BAN OF
THE CENSOR, MEANS WHICH CAN BE APPLIED WITHOUT DANGER OF INFRINGING ON
THE FREEDOM OF THE PRESS  ...  ."  (FN31) 

"BUT, IN ANY EVENT, TESTIMONY BEFORE COMMITTEES, COMMITTEE REPORTS,
AND ADMINISTRATIVE USURPATION, DO NOT, EITHER SINGLY OR COLLECTIVELY,
SUFFICE TO ESTABLISH AUTHORIZATION. 

  IV. 

WE HAVE SUSTAINED THE CRIMINAL SANCTIONS OF SEC. 1461 AGAINST A
CHALLENGE OF UNCONSTITUTIONALITY UNDER THE FIRST AMENDEMENT.  ROTH V.
UNITED STATES, 354 U.S. 476.  WE HAVE EMPHASIZED, HOWEVER, THAT THE
NECESSITY FOR SAFEGUARDING FIRST AMENDMENT PROTECTIONS FOR NONOBSCENE
MATERIALS MEANS THAT GOVERNMENT "IS NOT FREE TO ADOPT WHATEVER
PROCEDURES IT PLEASES FOR DEALING WITH OBSCENITY  ... WITHOUT REGARD TO
THE POSSIBLE CONSEQUENCES FOR CONSTITUTIONALLY PROTECTED SPEECH." 
MARCUS V. SEARCH WARRANT, 367 U.S. 717, 731.  I IMPLY NO DOUBT THAT
CONGRESS COULD CONSTITUTIONALLY AUTHORIZE A NONCRIMINAL PROCESS IN THE
NATURE OF A JUDICIAL PROCEEDING UNDER CLOSELY DEFINED PROCEDURAL
SAFEGUARDS.  BUT THE SUGGESTION THAT CONGRESS MAY CONSTITUTIONALLY
AUTHORIZE ANY PROCESS OTHER THAN A FULLY JUDICIAL ONE IMMEDIATELY
RAISES THE GRAVEST DOUBTS.  HOWEVER, IT IS ENOUGH TO DISPOSE OF THIS
CASE THAT CONGRESS HAS NOT, IN SEC. 1461, AUTHORIZED THE POSTMASTER
GENERAL TO EMPLOY ANY PROCESS OF HIS OWN TO CLOSE THE MAILS TO MATTER
WHICH, IN HIS VIEW, FALLS WITHIN THE BAN OF THAT SECTION.  "THE
PROVISIONS  ...  WOULD HAVE TO BE FAR MORE EXPLICIT FOR US TO ASSUME
THAT CONGRESS MADE SUCH A RADICAL DEPARTURE FROM OUR TRADITIONS AND
UNDERTOOK TO CLOTHE THE POSTMASTER GENERAL WITH THE POWER TO SUPERVISE
THE TASTES OF THE READING PUBLIC OF THE COUNTRY."  HANNEGAN V. ESQUIRE,
INC., 327 U.S., AT 156.  I, THEREFORE, CONCUR IN THE JUDGMENT OF
REVERSAL. 

FN1  ONE, INC., V. OLESEN, 355 U.S. 371, AND SUNSHINE BOOK CO. V.
SUMMERFIELD, 355 U.S. 372, WERE DECIDED SUMMARILY WITHOUT ARGUMENT. 

FN2  THERE WOULD ALSO BE THE QUESTION, IF (A), (B) AND (C) WERE
ANSWERED AFFIRMATIVELY, OF THE VALIDITY OF THE PARTICULAR PROCEDURES
THAT THE POST OFFICE HAS EMPLOYED. 

FN3  SEE, E.G., GROVE PRESS, INC., V. CHRISTENBERRY, 175 F. SUPP. 488,
495, AND 276 F.2D 433, 435; SUNSHINE BOOK CO. V. SUMMERFIELD, 101 U.S.
APP. D.C. 358, 364-367, 249 F.2D 114, 120-123 (DISSENTING OPINION),
REVERSED, SEE SUPRA, N.1.  AND CF. ROTH V. GOLDMAN, 172 F.2D 788, 794
795 (CONCURRING OPINION).  COMPARE STANDARD V. OLESEN, 74 S. CT. 768
(OPINION OF MR. JUSTICE DOUGLAS), OLESEN V. STANDARD, 227 F.2D 785;
SUMMERFIELD V. SUNSHINE BOOK CO., 95 U.S. APP. D.C. 169, 221 F.2D 42. 

FN4 THE GOVERNMENT ARGUES THAT PETITIONERS "COMPLAIN GENERALLY OF 'AN
UNCONSTITUTIONAL PRIOR RESTRAINT,'  ...  WITHOUT SPECIFYING WHERE THE
ASSERTED VICE LIES  ...  ."  INSOFAR AS PETITIONERS CHALLENGE THE
CONSTITUTIONALITY OF SEC. 1461 IF READ TO IMPOSE CIVIL RESTRAINTS,
THEIR SUIT WOULD BE WITHIN THE REQUIREMENTS FOR CONVENING A THREE-JUDGE
COURT UNDER 28 U.S.C. SEC. 2282, AND THEREFORE THAT CLAIM IS NOT HERE. 
BUT INSOFAR AS THEIR ATTACK IS GROUNDED UPON A CLAIM THAT SEC. 1461 IS
NOT TO BE CONSTRUED AS GRANTING CENSORIAL POWER TO THE POST OFFICE,
SEC. 2282 DOES NOT APPLY. 

FN5  MY BROTHER HARLAN STATES THAT NO QUESTION IS RAISED AS TO THE
POST OFFICE DEPARTMENT'S GENERAL AUTHORITY UNDER 18 U.S.C. SEC. 1461 TO
WITHHOLD OBSCENE MATTER FROM THE MAILS.  THE GOVERNMENT ASSERTS ONLY
THAT AT THE ADMINISTRATIVE LEVEL THE PETITIONERS MADE NO OBJECTION TO
THE PROCEDURE.  THE GOVERNMENT DOES NOT SUGGEST THAT THE CHALLENGE TO
THE POST OFFICE'S POWER TO ACT AT ALL HAD TO BE MADE BEFORE THE
ADMINISTRATIVE BODY.  THAT CHALLENGE PRESENTS A JURISDICTIONAL QUESTION
AND IS OPEN TO THE PETITIONERS EVEN IF NOT INITIALLY ASSERTED IN THE
AGENCY PROCEEDING.  SEE UNITED STATES V. L.A. TUCKER TRUCK LINES, INC.,
344 U.S. 33, 38.  AND ALTHOUGH PERHAPS NOT ARTFULLY, THE PETITIONERS
DID CHALLENGE THE AUTHORITY OF THE POST OFFICE IN THE DISTRICT COURT. 
IN THEIR MOTION FOR SUMMARY JUDGMENT PETITIONERS STATED:  "PLAINTIFFS
ARGUE THAT THE ENTIRE CIVIL PROCEDURE FOLLOWED BY THE POST OFFICE BASED
UPON A CRIMINAL STATUTE RAISES DOUBTS OF CONSTUTIONALITY.  THE FRAGILE
FOUNDATION ON WHICH THE POST OFFICE ACTION RESTS MUST BE KEPT IN MIND,
BOTH IN DEALING WITH THE SUBSTANTIVE OBSCENITY QUESTION INVOLVED AND IN
DETERMINING THE PROPER SCOPE OF JUDICIAL REVIEW  ...  .  THERE IS
LACKING HERE THE KIND OF SPECIFIC LEGISLATIVE DIRECTION TO THE
ADMINISTRATIVE AGENCY THAT IN CERTAIN CIRCUMSTANCES JUSTIFIES JUDICIAL
DEFERENCE TO ADMINISTRATIVE DETERMINATIONS."  THE COURT OF APPEALS DID
NOT DISCUSS THE ISSUE, PERHAPS BECAUSE IT HAD HELD IN SUNSHINE BOOK CO.
V. SUMMERFIELD, SUPRA, N.3, THAT THE QUESTIONED AUTHORITY EXISTS; THE
GOVERNMENT DOES NOT SUGGEST THAT PETITIONERS FAILED TO MAKE THEIR
ARGUMENT THERE.  AND IN THIS COURT, PETITIONERS CONTINUE THEIR ATTACK
AND THE GOVERNMENT, WITHOUT RESERVATION, FULLY DEFENDS AGAINST IT.
FN6  THERE IS NO NEED TO CONSIDER HERE THE HISTORY BEFORE 1865, WHICH
WAS HIGHLIGHTED BY THE REJECTION BY CONGRESS IN 1836, LARGELY ON
CONSTITUTIONAL GROUNDS, OF PRESIDENT JACKSON'S REQUEST FOR LEGISLATION
TO SUPPRESS MAIL DISTRIBUTION OF "INCENDIARY" ABOLITIONIST LITERATURE. 
SEE ROGERS, THE POSTAL POWER OF CONGRESS (1916); DEUTSCH, FREEDOM OF
THE PRESS AND OF THE MAILS, 36 MICH. L. REV. 703 (1938).  THE 1865
SENATE DEBATES REFERRED TO SUCH ACTION AS THE KIND FOR WHICH POWER
SHOULD BE WITHHELD.  CONG. GLOBE, 38TH CONG., 2D SESS. 661 (1865).  THE
POST OFFICE OCCASIONALLY SEIZED ALLEGEDLY TREASONABLE NEWSPAPERS
DESPITE ITS LACK OF AUTHORITY.  SEE H.R. REP. NO. 51, 37TH CONG., 3D
SESS., PP. 3, 10 (1863). 

THE ONLY NONCRIMINAL PROCEDURE AUTHORIZED AGAINST OBSCENE MATERIAL
BEFORE 1865 WAS A JUDICIAL PROCEEDING FOR IMPORTED MATERIAL'S
FORFEITURE.  5 STAT. 566; SEE UNITED STATES V. THREE CASES OF TOYS, 28
FED. CAS. 112, NO. 16,499; ANONYMOUS, 1 FED. CAS. 1024, NO. 470.  FOR A
COMPREHENSIVE DISCUSSION OF THE HISTORY AND PRACTICE OF CENSORSHIP IN
THE POST OFFICE AND BUREAU OF CUSTOMS, SEE PAUL AND SCHWARTZ, FEDERAL
CENSORSHIP:  OBSCENITY IN THE MAIL (1961), AND PAUL, THE POST OFFICE
AND NON-MAILABILITY OF OBSCENITY:  AN HISTORICAL NOTE, 8 U.C.L.A.L.
REV. 44 (1961). 

FN7  CONGRESS IN 1865 WAS UNDOUBTEDLY AGAINST ANY POWER IN THE POST
OFFICE TO BREAK SEALS (SEE CONG. GLOBE, 38TH CONG., 2D SESS. 660-661),
AND 23 YEARS LATER MADE THIS EXPLICIT AS TO FIRST CLASS MAIL.  25 STAT.
496-497.  BUT EVEN THAT WAS A PROHIBITION "OUT OF ABUNDANT CAUTION" AND
WAS NOT INTENDED TO IMPLY ANY POWER TO OPEN MAIL OF OTHER CLASSES.  SEE
19 CONG. REC. 8189 (1888). 

FN8  25 STAT. 496, NOW 18 U.S.C. SEC. 1463. 

FN9  SEE MILWAUKEE PUBLISHING CO. V. BURLESON, 225 U.S. 407, 423, 429
430 (BRANDEIS, J., DISSENTING). 

FN10  16 OP. ATTY. GEN. 5, 6 (1878); 12 ID., 538 (1868); AND SEE 12
ID., 399, 401 (1868). 

FN11  THERE WAS ALSO A PROVISION THAT ANY MATERIAL "WHICH MAY BE
SEIZED OR DETAINED FOR VIOLATION OF LAW SHALL BE RETURNED TO THE OWNER
OR SENDER OF THE SAME, OR OTHERWISE DISPOSED OF AS THE POSTMASTER
GENERAL MAY DIRECT," 17 STAT. 323, BUT THAT ONLY STATES WHAT MAY BE
DONE WITH MATERIAL WHICH MAY BE SEIZED OR DETAINED, AND OUR QUESTION IS
WHETHER OBSCENE MATERIAL - EXCEPT IN THE NARROW CIRCUMSTANCES ALREADY
DESCRIBED - MAY BE SEIZED OR DETAINED AT ALL.  COMPARE PP. 511-512,
INFRA. 

FN12  BUT SEE CASSERLY'S SECOND STATEMENT, ID., AT 1436, WHICH WAS A
MISUNDERSTANDING OF THE BILL. 

FN13  SEE PAUL, SUPRA, N. 6, AT 51-57. 

FN14  THE BILL'S MANAGER IN THE HOUSE SAID:  "THE PROPOSED BILL IN NO
WISE CHANGES THE LAW AS IT NOW IS EXCEPT TO PROVIDE A PENALTY FOR THE
CIRCULATION OF OBSCENE LITERATURE.  BY AN OVERSIGHT IN DRAFTING THE
ORIGINAL SECTION THE PENALTY APPLIES ONLY TO THE DISPOSITION OF
ARTICLES CIRCULATED OR SOLD FOR THE PURPOSE OF PROCURING ABORTION OR
PREVENTING CONCEPTION.  ALREADY THIS OBSCENE CLASS OF MATTER SPOKEN OF
IN THE OTHER PORTION OF THE SECTION IS PROHIBITED FROM PASSING THROUGH
THE MAILS, BUT NO PENALTY IS PROVIDED  ...  .  IT IN NO WAY CHANGES THE
NON-MAILABLE.  IT MERELY PROVIDES A PENALTY  ...  ."  4 CONG. REC. 695
(1876). 

"SECTION 1461 IS PERFECTED BY THE BILL SO AS TO PROVIDE A COMPLETE
PENALTY FOR THE MAILING OF ALL KINDS OF MATTER THEREIN PROHIBITED TO
PASS THROUGH THE MAILS."  4 CONG.  REC. 3656.  THE SENATE DID NOT
DISCUSS THIS CHANGE.  SEE 4 CONG. REC. 4261-4264. 

FN15  DISCUSSION IN THE SENATE INCLUDED THE FIRST REFERENCE TO THE
PROBLEM OF STANDARDS OF OBSCENITY - IT WAS HARDLY SUCH AS TO AFFORD
GUIDELINES FOR ADMINISTRATIVE ACTION: 

"MR. MORTON.  MR. PRESIDENT, IN PROHIBITING THE TRANSMISSION OF ANY
MATTER THROUGH THE MAILS THERE OUGHT TO BE GREAT CARE USED AND IT OUGHT
TO BE PARTICULARLY DESCRIBED AND DEFINED.  ALL OF THAT WHICH IS
DESCRIBED IN THE BEGINNING OF THE FIRST SECTION OF THIS BILL IS
EMINENTLY PROPER TO PROHIBIT FROM BEING TRANSMITTED THROUGH THE MAILS;
BUT THERE IS A PART OF THAT SECTION THAT I THINK IS VAGUE AND
SUSCEPTIBLE OF ABUSE.  IT PROHIBITS THE TRANSMISSION THROUGH THE MAIL
OF 'EVERY ARTICLE OR THING INTENDED OR ADAPTED FOR ANY INDECENT OR
IMMORAL USE.'  WHAT IS AN 'IMMORAL USE?'  THAT QUESTION MAY BE SUBJECT
TO VERY DIFFERENT OPINIONS.  THE WORD 'OBSCENE' IS WELL DEFINED; WE CAN
UNDERSTAND WHAT THAT MEANS; BUT WHEN YOU PROHIBIT EVERYTHING THAT IS
FOR AN IMMORAL USE, THERE WOULD BE WIDE DIFFERENCES OF OPINION ON THAT
POINT. 

"MR. CONKLING.  THE SAME WORDS ARE IN THE LAW NOW. 

"MR. MORTON.  THAT MAY BE.  I REMEMBER A TIME WHEN CERTAIN NEWSPAPERS
AND PAMPHLETS WERE PROHIBITED FROM GOING THROUGH THE MAILS IN CERTAIN
STATES, BECAUSE THEY WERE HELD TO BE OF AN IMMORAL AND SEDITIOUS
CHARACTER - OF 'AN INCENDIARY CHARACTER,' AS MY FRIEND FROM OHIO (MR.
SHERMAN) SUGGESTS.  PUBLIC OPINION HAS CHANGED UPON THAT POINT.  BUT
WHEN WE COME TO PROHIBIT THE TRANSMISSION OF ANY MATTER THROUGH THE
MAILS, WE OUGHT TO UNDERSTAND PRETTY WELL WHAT IT IS.  THERE ARE MANY
THINGS THAT A PORTION OF OUR PEOPLE WOULD CONSIDER IMMORAL THAT OTHER
PORTIONS WOULD CONSIDER ENTIRELY MORAL.  SOME PEOPLE MIGHT CONSIDER A
PACK OF CARDS HIGHLY IMMORAL; OTHERS MIGHT THINK THEY WERE ENTIRELY
PROPER.  MANY OTHER THINGS MIGHT BE ENUMERATED."  4 CONG. REC. 4263. 

FN16  "AND ALL MATTER OTHERWISE MAILABLE BY LAW UPON THE ENVELOPE OR
OUTSIDE COVER OR WRAPPER OF WHICH, OR POSTAL CARD, UPON WHICH INDECENT,
LEWD, LASCIVIOUS, OBSCENE, LIBELOUS, SCURRILOUS, OR THREATENING
DELINEATIONS, EPITHETS, TERMS, OR LANGUAGE, OR REFLECTING INJURIOUSLY
UPON THE CHARACTER OR CONDUCT OF ANOTHER, MAY BE WRITTEN OR PRINTED,
ARE HEREBY DECLARED TO BE NON-MAILABLE MATTER, AND SHALL NOT BE
CONVEYED IN THE MAILS, NOR DELIVERED FROM ANY POST-OFFICE NOR BY ANY
LETTER-CARRIER; AND ANY PERSON WHO SHALL KNOWINGLY DEPOSIT  ...  ."  25
STAT. 188. 

THE PROSCRIPTION OF SCURRILOUS EPITHETS HAD BEEN PART OF SEC. 1461 AS
AMENDED IN 1873, 17 STAT. 599, BUT IT WAS REMOVED IN 1876 WHEN THE
WORD'S BREADTH AND VAGUENESS WERE OBJECTED TO.  ITS REENACTMENT WAS
LARGELY AIMED AT A "BLACKMAILING" PROCESS FOR THE COLLECTION OF DEBTS. 
19 CONG. REC. 2206, 6734, 7662 (1888). 

FN17  BUT SEE ALSO ID., AT 6733-6734. 

FN18  35 STAT. 1129. 

FN19  SEE UNITED STATES V. LIMEHOUSE, 285 U.S. 424. 

FN20  (1)  18 U.S.C. SEC. 1718, THE CRIMINAL PROVISION AGAINST
MAILING OF MATTER LIBELOUS ON ITS FACE, EXPLICITLY EMPOWERS THE
POSTMASTER GENERAL TO MAKE REGULATIONS GOVERNING ITS WITHDRAWAL FROM
THE MAILS; (2) 18 U.S.C. SECS. 1341 AND 1302, THE CRIMINAL MAIL FRAUD
AND LOTTERY PROVISIONS, HAVE A MATCHING SECTION IN THE POSTAL LAWS
EMPOWERING THE POSTMASTER GENERAL, UPON EVIDENCE SATISFACTORY TO HIM,
TO MAKE MAIL "FRAUDULENT" OR "LOTTERY MAIL" AND TO RETURN IT TO ITS
SENDER, 39 U.S.C. (SUPP. II) SEC. 4005; (3) 18 U.S.C.  SEC. 1342,
MAKING IT A CRIME TO CONDUCT A FRAUDULENT SCHEME BY USING A FALSE NAME
OR ADDRESS, ALSO HAS A COUNTERPART CIVIL SECTION EMPOWERING THE
POSTMASTER GENERAL, UPON EVIDENCE SATISFACTORY TO HIM, TO REQUIRE PROOF
OF IDENTITY OR TO SEND SUCH MAIL TO THE DEAD LETTER OFFICE, 39 U.S.C.
(SUPP. II) SEC. 4003; (4) 18 U.S.C. SECS. 1715 AND 1716, MAKING
CRIMINAL THE MAILING OF FIREARMS AND INJURIOUS ARTICLES, EXPLICITLY
STATE THAT THE POSTMASTER GENERAL MAY MAKE REGULATIONS GOVERNING THEIR
TRANSMISSION; (5) 18 U.S.C. SEC. 1717, MAKING CRIMINAL THE MAILING OF
MATTER ADVOCATING TREASON, EXPLICITLY AUTHORIZED EMPLOYEES OF THE DEAD
LETTER OFFICE TO OPEN SUCH MAIL.  SEE 74 STAT. 708.  AND SEE 7 U.S.C.
SEC. 150CC AND 33 STAT. 1270 (PLANT PESTS); 38 STAT. 1113 (PLANTS AND
PLANT PRODUCTS); 22 U.S.C. SEC. 618 (FOREIGN AGENTS' PROPAGANDA
ADVOCATING VIOLENT DISORDER IN ANY OTHER AMERICAN REPUBLIC); COMPARE 7
U.S.C. SEC. 1575 (FALSE ADVERTISING OF SEED); 15 U.S.C. SECS. 77Q
(FRAUDULENT MATTER REGARDING SECURITIES), 80A-20 (SOLICITATION OF
PROXIES), 80A-24 (SALES LITERATURE REGARDING SECURITIES), 80B-3, 80B-5
AND 80B-6 (INVESTMENT ADVISERS' MATERIALS); 50 U.S.C.  SEC. 789
(PUBLICATIONS OF REGISTERED COMMUNIST ORGANIZATIONS). 

SEE AMERICAN SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94,
109. 

FN21  H.R. REP. NO. 36, 86TH CONG., 1ST SESS. A44 (1959); 105 CONG.
REC. 3157 (1959) AND 106 CONG. REC. 15,667 (1960); AND SEE SUPRA,
N.11. 

FN22  64 STAT. 451, NOW REVISED AND CODIFIED AS 39 U.S.C. (SUPP. II)
SEC. 4006.  SEE 74 STAT. 578, 655. 

FN23  IT APPEARS THAT BETWEEN 1950 AND 1956, THE POSTMASTER GENERAL
ASSERTED, AND SOME COURTS AGREED, THAT HE ALREADY HAD THE POWER.  SEE
STANDARD V. OLESEN, SUPRA, N.3, AT 771. 

FN24  70 STAT. 699. 

FN25  HEARINGS BEFORE HOUSE SUBCOMMITTEE ON POSTAL OPERATIONS OF THE
COMMITTEE ON POST OFFICE AND CIVIL SERVICE ON OBSCENE MATTER SENT
THROUGH THE MAIL, 86TH CONG., 1ST SESS.  (1959). 

FN26  74 STAT. 553.  THE CODIFICATION OF THE POSTAL LAWS, LATER IN
1960, REPEALED 70 STAT. 699 (SEE 74 STAT. 708, 729) AND NOT 74 STAT.
553, BUT THE NEW SEC. 4007 (74 STAT. 655) REPEATS THE WORDS OF 70 STAT.
699.  WE NEED NOT NOW DECIDE WHICH IS THE GOVERNING PROVISION. 

THE SENATE REPORT IN 1956 HAD SAID THIS: 

"THE COMMITTEE RECOGNIZES THAT EVEN IN ITS PRESENT FROM THE BILL
GIVES THE POSTMASTER GENERAL EXTRAORDINARY AND SUMMARY POWERS TO IMPOSE
A SUBSTANTIAL PENALTY BY IMPOUNDING A PERSON'S MAIL FOR UP TO 20 DAYS
IN ADVANCE OF ANY HEARING OR ANY REVIEW BY THE COURTS.  SUCH POWER IS
DIRECTLY CONTRARY TO THE LETTER AND SPIRIT OF NORMAL DUE PROCESS, AS
EXEMPLIFIED BY THE ADMINISTRATIVE PROCEDURE ACT, WHICH REQUIRES A
HEARING BEFORE ANY PENALTY MAY BE IMPOSED.  THE POST OFFICE DEPARTMENT
HAS MADE ITS CASE FOR THIS LEGISLATION ON THE GROUNDS THAT A TEMPORARY
AND SUMMARY PROCEDURE IS REQUIRED TO DEAL WITH FLY-BY-NIGHT OPERATORS
USING THE MAILS TO DEFRAUD OR TO PEDDLE PORNOGRAPHY, WHO MAY GO OUT OF
BUSINESS - OR CHANGE THE NAME OF THEIR BUSINESS OR THEIR BUSINESS
ADDRESS - BEFORE NORMAL LEGAL PROCEDURES CAN BE BROUGHT INTO
OPERATION.  THE POST OFFICE DEPARTMENT HAS NOT RECOMMENDED, NOR DOES
THIS COMMITTEE APPROVE, THE USE OF THE TEMPORARY IMPOUNDING PROCEDURE
UNDER THIS BILL AS A SUBSTITUTE FOR THE NORMAL PRACTICE OF AN ADVANCE
HEARING OR THE BRINGING OF AN INDICTMENT FOR VIOLATION OF THE CRIMINAL
CODE IN ALL CASES INVOLVING LEGITIMATE AND WELL-ESTABLISHED BUSINESS
OPERATIONS.  THE COMMITTEE WOULD NOT APPROVE THE USE OF THE
EXTRAORDINARY SUMMARY PROCEDURE UNDER THE BILL AGAINST LEGITIMATE
PUBLISHERS OF NEWSPAPERS, MAGAZINES, OR BOOKS IN CASES IN WHICH A
POSTMASTER GENERAL MIGHT TAKE OBJECTION TO AN ARTICLE, AN ISSUE, OR A
VOLUME."  S. REP. NO. 2234, 84TH CONG., 2D SESS. 2-3. 

FN27  SECTION 305 OF THE TARIFF ACT OF 1922, 42 STAT. 937, BANNED
OBSCENE AND IMMORAL MATTER, BUT SUBSECTION (C) PROVIDED: 

THAT ANY DISTRICT JUDGE  ...  WITHIN THE PROPER DISTRICT  ...  MAY
ISSUE UPON PROBABLE CAUSE, CONFORMABLY TO THE CONSTITUTION, A WARRANT
DIRECTED TO A MARSHALL OR CUSTOMS OFFICER, DIRECTING HIM TO  ...  SEIZE
...  ANY ARTICLE OR THING MENTIONED IN SEC. 305, AND TO MAKE DUE AND
IMMEDIATE RETURN THEREOF, TO THE END THAT THE SAME MAY BE CONDEMNED AND
DESTROYED BY PROCEEDINGS, WHICH SHALL BE CONDUCTED IN THE SAME MANNER
AS OTHER PROCEEDINGS IN THE CASE OF MUNICIPAL SEIZURE, AND WITH THE
SAME RIGHT OF APPEAL OR WRIT OF ERROR."  AND SEE SUPRA, N.6; SUPRA, PP.
505-506. 

FN28  THESE DATE FROM 1957.  SEE 39 CFR SECS. 14.4, 203 (1962). 

FN29  SEE WONG YANG SUNG V. MCGRATH, 339 U.S. 33; RISS & CO. V.
UNITED STATES, 341 U.S. 907; CATES V. HADERLEIN, 342 U.S. 804; WALKER
V. POPENOE, 80 U.S. APP. D.C. 129, 149 F.2D 511; DOOR V. DONALDSON, 90
U.S. APP. D.C. 188, 195 F.2D 764.  AND SEE, SUPRA, N.23. 

FN30  SEE, E.G., HEARINGS BEFORE HOUSE SUBCOMMITTEE NO. 8 OF THE
COMMITTEE ON THE POST OFFICE AND POST ROADS ON H.R. 5370, 74TH CONG.,
1ST SESS (1935); AND HEARINGS, SUPRA, N.25; S. REP. NO. 2179, 81ST
CONG., 2D SESS. (1950); S. REP. NO. 113, 84TH CONG., 1ST SESS. (1955);
ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE, POST OFFICE
DEPARTMENT (1940); 19 OP. ATTY. GEN. 667 (1890)(UPHOLDING EXCLUSION
FROM THE MAILS OF ALLEGEDLY OBSCENE PORTIONS OF TOLSTOI'S "KREUTZER
SONATA"); 4 OP. ASST. ATTY. GEN., POST-OFFICE DEPT. 741 (1908)(HOLDING
THAT SEC. 1461 IS A CIVIL AS WELL AS A CRIMINAL PROVISION, AND THAT THE
POST OFFICE "IN PASSING UPON THE MAILABILITY OF MATTER UNDER THIS
STATUTE  ...  IS NOT CONFINED TO THE STRICT CONSTRUCTION OF THE TERMS
OF THE ENACTMENT WHICH MUST BE FOLLOWED BY A COURT IN DETERMINING
WHETHER IN A CRIMINAL CASE ITS PROVISIONS HAVE BEEN VIOLATED").  AND
SEE THE SHARP - AND CONSTITUTIONALLY COLORED - OPPOSITION TO AND
REJECTION OF A 1915 PROPOSAL THAT WOULD HAVE AUTHORIZED THE POSTMASTER
GENERAL TO CLOSE THE MAILS TO MATERIAL SENT BY A PERSON HE HAD
DETERMINED TO BE ENGAGED IN PUBLISHING OBSCENE MATTER.  HEARINGS BEFORE
HOUSE COMMITTEE ON THE POST OFFICE AND POST ROADS ON EXCLUSION OF
CERTAIN PUBLICATIONS FROM THE MAILS, 63D CONG., 3D SESS. (1915);
MILWAUKEE PUBLISHING CO. V. BURLESON, 255 U.S. 407, 424 (BRANDEIS, J.,
DISSENTING). 

FN31  H.R. REP. NO. 2510, 82D CONG., 2D SESS. 5, 32. 

MR. JUSTICE CLARK, DISSENTING.    WHILE THOSE IN THE MAJORITY LIKE
ANCIENT GAUL ARE SPLIT INTO THREE PARTS, THE ULTIMATE HOLDING OF THE
COURT TODAY, DESPITE THE CLEAR CONGRESSIONAL MANDATE FOUND IN SEC.
1461, REQUIRES THE UNITED STATES POST OFFICE TO BE THE WORLD'S LARGEST
DISSEMINATOR OF SMUT AND GRAND INFORMER OF THE NAMES AND PLACES WHERE
OBSCENE MATERIAL MAY BE OBTAINED.  THE JUDICIAL OFFICER OF THE POST
OFFICE DEPARTMENT, THE DISTRICT COURT, AND THE COURT OF APPEALS HAVE
ALL FOUND THE MAGAZINES IN ISSUE TO BE NONMAILABLE ON THE ALTERNATIVE
GROUNDS THAT THEY ARE OBSCENE AND THAT THEY CONTAIN INFORMATION ON
WHERE OBSCENE MATERIAL MAY BE OBTAINED.  THE COURT, HOWEVER, SAYS THAT
THESE MAGAZINES MUST GO THROUGH THE MAILS.  BROTHER HARLAN, WRITING FOR
HIMSELF AND BROTHER STEWART, FINDS THAT THE MAGAZINES THEMSELVES ARE
UNOBJECTIONABLE BECAUSE SEC. 1461 IS NOT SO NARROWLY DRAWN AS TO
PROHIBIT THE MAILING OF MATERIAL "THAT INCITES IMMORAL SEXUAL CONDUCT,"
AND THAT THE PRESENCE OF INFORMATION LEADING TO OBSCENE MATERIAL DOES
NOT TAINT THE MAGAZINES BECAUSE THEIR PUBLISHERS WERE UNAWARE OF THE
TRUE NATURE OF THIS INFORMATION.  BROTHER BRENNAN, JOINED BY THE CHIEF
JUSTICE AND BROTHER DOUGLAS, FINDS THAT SEC. 1461 DOES NOT AUTHORIZE
THE POSTMASTER GENERAL THROUGH ADMINISTRATIVE PROCESS TO CLOSE THE
MAILS TO MATTER INCLUDED WITHIN ITS PROSCRIPTIONS.  SINCE IN MY VIEW
THE POSTMASTER GENERAL IS REQUIRED BY SEC. 1461 TO REJECT NONMAILABLE
MATTER, I WOULD AFFIRM THE JUDGMENT ON THE SOLE GROUND THAT THE
MAGAZINES CONTAIN INFORMATION AS TO WHERE OBSCENE MATERIAL CAN BE
OBTAINED AND THUS ARE NONMAILABLE.  I, THEREFORE, DO NOT CONSIDER THE
QUESTION OF WHETHER THE MAGAZINES AS SUCH ARE OBSCENE. 

                       I. 

THE PROCEDURES FOLLOWED BELOW CAN BE DESCRIBED BRIEFLY.  PETITIONERS
DEPOSITED IN THE POST OFFICE IN ALEXANDRIA, VIRGINIA, SIX PARCELS
CONTAINING 405 COPIES OF THREE MAGAZINES WHICH THEY PUBLISHED.  THE
PARCELS WERE DIRECTED TO PETITIONERS' AGENT IN CHICAGO AND MARKED AS
SECOND CLASS MATTER.  BEING UNSEALED AND SUBJECT TO INSPECTION, (FN1)
THE POSTMASTER NOTICED THAT THE MATERIAL APPEARED TO BE OBSCENE.  UNDER
THE REGULATIONS OF THE POST OFFICE DEPARTMENT IN EFFECT SINCE 1902, THE
ALEXANDRIA POSTMASTER NOTIFIED THE GENERAL COUNSEL OF THE POST OFFICE
DEPARTMENT IN WASHINGTON AND SUBMITTED SAMPLES OF THE MATERIAL; THE
GENERAL COUNSEL DETERMINED THE MAGAZINES TO BE NONMAILABLE UNDER SEC.
1461 AND NOTIFIED PETITIONERS' PRESIDENT.  PETITIONERS SOUGHT
INJUNCTIVE RELIEF AGAINST THE DEPARTMENT IN THE DISTRICT COURT ON THE
GROUNDS THAT THE MAGAZINES DID NOT VIOLATE SEC. 1461 AND THE PROCEDURE
USED AMOUNTED TO AN UNCONSTITUTIONAL "EX PARTE ADMINISTRATIVE PRIOR
RESTRAINT," BUT THE SUIT WAS DISMISSED FOR DETERMINATION OF THE ISSUE
AT AN ADMINISTRATIVE HEARING PROVIDED FOR THE BY DEPARTMENT'S
REGULATIONS.  AFTER A FULL HEARING, AT WHICH PETITIONERS DID NOT
DISPUTE THE CONGRESSIONAL AUTHORIZATION TO REJECT THE SIX PARCELS FOR
SECOND CLASS MAILINGS, THE JUDICIAL OFFICER DECLARED THE MATERIAL
NONMAILABLE.  PETITIONERS CONTESTED THIS FINDING BY JUDICIAL REVIEW IN
THE DISTRICT COURT, WHERE THE ACTION OF THE JUDICIAL OFFICER WAS
UPHELD. 

MR. JUSTICE BRENNAN, AS I HAVE INDICATED, HAS REACHED THE CONCLUSION
THAT WHEN THE CONGRESS ORIGINALLY PASSED THE ACT IN QUESTION SOME 97
YEARS AGO IT GRANTED NO POWER TO THE POST OFFICE TO REFUSE TO RECEIVE
AND CARRY MATTER DECLARED BY THE ACT TO BE NONMAILABLE.  SINCE THIS
POINT WAS NEITHER PRESENTED BELOW NOR ARGUED HERE, I DO NOT BELIEVE IT
TO BE PROPERLY BEFORE US.  BROTHER BRENNAN, HOWEVER, RESTS HIS
CONCURRING OPINION ON IT AND FOR THAT REASON I SHALL DISCUSS THE
ISSUE.  (FN2) 


"EVERY OBSCENE, LEWD, LASCIVIOUS, INDECENT, FILTHY OR VILE ARTICLE,
MATTER, THING, DEVICE, OR SUBSTANCE; AND  ...  EVERY WRITTEN OR PRINTED
CARD, LETTER, CIRCULAR, BOOK, PAMPHLET, ADVERTISEMENT, OR NOTICE OF ANY
KIND GIVING INFORMATION, DIRECTLY OR INDIRECTLY, WHERE, OR HOW, OR FROM
WHOM, OR BY WHAT MEANS ANY OF SUCH MENTIONED MATTERS, ARTICLES, OR
THINGS MAY BE OBTAINED  ...  IS DECLARED TO BE NONMAILABLE MATTER AND
SHALL NOT BE CONVEYED IN THE MAILS OR DELIVERED FROM ANY POST OFFICE OR
BY ANY LETTER CARRIER." 

ITS GENESIS WAS IN SECTION 16 OF THE ACT OF MARCH 3, 1865, 13 STAT.
507, WHICH WHEN REPORTED IN THE SENATE HAD TWO PARTS: 

"NO OBSCENE BOOK, PAMPHLET, PICTURE, PRINT, OR OTHER PUBLICATION OF A
VULGAR AND INDECENT CHARACTER, SHALL BE ADMITTED INTO THE MAILS OF THE
UNITED STATES; BUT ALL SUCH OBSCENE PUBLICATIONS DEPOSITED IN OR
RECEIVED AT ANY POST OFFICE, OR DISCOVERED IN THE MAILS, SHALL BE
SEIZED AND DESTROYED, OR OTHERWISE DISPOSED OF, AS THE POSTMASTER
GENERAL SHALL DIRECT." 

"ANY PERSON OR PERSONS WHO SHALL DEPOSIT OR CAUSE TO BE DEPOSITED IN
ANY POST OFFICE OR BRANCH POST OFFICE OF THE UNITED STATES, FOR MAILING
OR FOR DELIVERY, AN OBSCENE BOOK, PAMPHLET, PICTURE, PRINT, OR OTHER
PUBLICATION, KNOWING THE SAME TO BE OF A VULGAR AND INDECENT CHARACTER,
SHALL BE DEEMED GUILTY OF A MISDEMEANOR  ...  ."  CONG. GLOBE, 38TH
CONG., 2D SESS. 661. 

THE SPONSOR OF THE BILL ADVISED THE SENATE THAT IT HAD A TWOFOLD
EFFECT:  "THE FIRST PART OF IT PROVIDES THAT IF SUCH OBSCENE
PUBLICATIONS ARE IN THE MAILS THE POSTMASTERS MAY TAKE THEM OUT; AND
THE LATTER PART PROVIDES A PENALTY AND A PUNISHMENT FOR THOSE WHO PUT
THEM INTO THE MAILS."  THIS EXPLANATION OF THE SPONSOR SEEMS ENOUGH TO
UNDERMINE BROTHER BRENNAN'S CONTENTION, BUT THERE IS EVEN MORE. 
SENATOR JOHNSON OF MARYLAND APPARENTLY FEARED THAT OBSCENE MATTER MIGHT
BE MAILED IN SEALED ENVELOPES AND THAT "THE POSTMASTER  ...  WILL BREAK
THE SEAL."  HE MOVED TO STRIKE OUT THE FIRST PART OF THE BILL.  SENATOR
SHERMAN, HOWEVER, OBJECTED, SAYING THAT "THE LEGISLATIVE PROHIBITION
AGAINST CARRYING SUCH MATTER WHEN IT IS KNOWN TO THE POSTMASTERS SHOULD
BE LEFT.  PROBABLY THE SECOND CLAUSE ALLOWING HIM TO OPEN MAIL MATTER
SHOULD BE STRUCK OUT."  IBID.  SENATOR JOHNSON ACQUIESCED IN THIS
SUGGESTION, AND THUS THE BILL AS FINALLY PASSED CLEARLY PERMITTED
POSTMASTERS TO REFUSE MATTERS WHICH WERE KNOWN BY THEM TO BE OBSCENE,
SO LONG AS SEALS WERE NOT BROKEN.  (FN3) 

THE 1873 POSTAL REGULATIONS REFLECTED THIS POWER TO EXCLUDE OBSCENE
MATTER FROM THE MAILS, (FN4) AS HAVE ALL SUCCEEDING ONES, E.G., POSTAL
LAWS AND REGULATIONS (1893 ED.)  SEC.  335.  IN 1876 THE ACT WAS
AMENDED TO SUBSTANTIALLY ITS PRESENT FORM.  19 STAT. 90.  IT NOT ONLY
DECLARED CERTAIN MATERIAL "TO BE NON-MAILABLE MATTER" BUT ADDED THAT
SUCH "SHALL NOT BE CONVEYED IN THE MAILS, NOR DELIVERED FROM ANY POST
OFFICE NOR BY ANY LETTER-CARRIER."  A SINGLE COMMENT BY THE BILL'S
SPONSOR IN THE HOUSE REFLECTS THE UNDERSTANDING THAT THIS SECTION, BOTH
BEFORE AND AFTER AMENDMENT, AUTHORIZED EXCLUSION:

"THE PROPOSED BILL IN NO WISE CHANGES THE LAW AS IT NOW IS EXCEPT TO
PROVIDE A PENALTY FOR THE CIRCULATION OF OBSCENE LITERATURE.  BY AN
OVERSIGHT IN DRAFTING THE ORIGINAL SECTION THE PENALTY APPLIES ONLY TO
THE DISPOSITION OF ARTICLES CIRCULATED OR SOLD FOR THE PURPOSE OF
PROCURING ABORTION OR PREVENTING CONCEPTION.  ALREADY THIS OBSCENE
CLASS OF MATTER SPOKEN OF IN THE OTHER PORTION OF THE SECTION IS
PROHIBITED FROM PASSING THROUGH THE MAILS,  BUT NO PENALTY IS PROVIDED
...  .  IT IN NO WAY CHANGES THE SECTION AS IT NOW IS.  IT MAKES
NOTHING NON-MAILABLE THAT IS NOT NOW NON-MAILABLE.  IT MERELY PROVIDES
A PENALTY  ...  ."  4 CONG. REC. 695 (1876). 

REGULATIONS ESTABLISHING THE PROCEDURE NOW USED BY THE DEPARTMENT TO
DETERMINE QUESTIONS OF MAILABILITY WERE ADOPTED IN 1902.  AND IN 1960
IN A RECODIFICATION THE CONGRESS INCLUDED SEC. 1461 WITHIN ITS
COLLECTION OF PROVISIONS WHICH DESIGNATE MATTER AS NONMAILABLE.  39
U.S.C. (SUPP. II) SEC. 4001(A). 

IN LIGHT OF THE LANGUAGE OF THE STATUTES, THE LEGISLATIVE HISTORY,
THE SUBSEQUENT RECODIFICATION AND THE CONSISTENT HISTORY OF
ADMINISTRATIVE INTERPRETATION, IT STRETCHES MY IMAGINATION TO
UNDERSTAND HOW ONE COULD CONCLUDE THAT CONGRESS DID NOT AUTHORIZE THE
POST OFFICE DEPARTMENT TO EXCLUDE NONMAILABLE MATERIAL.  AS JUSTICE
BRANDEIS SAID IN MILWAUKEE PUBLISHING CO. V. BURLESON, 255 U.S. 407,
418, 421 (1921)(DISSENTING OPINION): 

"THE SCOPE OF THE POSTMASTER GENERAL'S ALLEGED AUTHORITY IS
CONFESSEDLY THE SAME WHETHER THE REASON FOR THE NONMAILABLE QUALITY OF
THE MATTER INSERTED IN A NEWSPAPER IS THAT IT VIOLATES THE ESPIONAGE
ACT, OR THE COPYRIGHT LAWS, OR THAT IT IS PART OF A SCHEME TO DEFRAUD,
OR CONCERNS LOTTERIES, OR IS INDECENT, OR IS IN ANY OTHER RESPECT
MATTER WHICH CONGRESS HAS DECLARED SHALL NOT BE ADMITTED TO THE MAILS. 

     *         *         *        *         * 

"AS A MATTER OF ADMINISTRATION THE POSTMASTER GENERAL, THROUGH HIS
SUBORDINATES, REJECTS MATTER OFFERED FOR MAILING, OR REMOVES MATTER
ALREADY IN THE MAIL, WHICH IN HIS JUDGMENT IS UNMAILABLE.  THE
EXISTENCE IN THE POSTMASTER GENERAL OF THE POWER TO DO THIS CANNOT BE
DOUBTED.  THE ONLY QUESTION WHICH CAN ARISE IS WHETHER IN THE
INDIVIDUAL CASE THE POWER HAS BEEN ILLEGALLY EXERCISED." 

                   II. 

LET US NOW TURN TO THE OPINION OF BROTHER HARLAN AND FIRST TAKE UP
THE QUESTION WHETHER MAGAZINES WHICH INDISPUTABLY CONTAIN INFORMATION
ON WHERE OBSCENE MATERIAL MAY BE OBTAINED CAN BE CONSIDERED NONMAILABLE
APART FROM THE SENDER'S SCIENTER.  GIVING REGARD TO THE WORDING OF SEC.
1461, THE INTERESTS INVOLVED, AND THE NATURE OF THE SANCTION IMPOSED, I
FAIL TO SEE HOW THE SENDER'S SCIENTER IS ANYWISE MATERIAL TO A
DETERMINATION OF NONMAILABILITY.  SECTION 1461 VERY EXPLICITLY DEMANDS
THAT NO INFORMATION "BE CONVEYED IN THE MAILS OR DELIVERED FROM ANY
POST OFFICE OR BY ANY LETTER CARRIER" IF IT IN FACT TELLS HOW OBSCENE
MATERIAL CAN BE OBTAINED.  THIS COMMAND RUNNING TO THOSE CHARGED WITH
THE ADMINISTRATION OF THE POSTAL SYSTEM IS NOT CONDITIONED BY THE WORDS
OF THE STATUTE UPON THE SENDER'S SCIENTER OR ANY REMOTELY SIMILAR
CONSIDERATION.  WHEN IT WANTS TO INJECT A SCIENTER REQUIREMENT, THE
CONGRESS WELL KNOWS THE WORDS TO USE, AS EVIDENCED BY THE VERY NEXT
SENTENCE IN SEC. 1461 ESTABLISHING THE CRIMINAL SANCTIONS:  "WHOEVER
KNOWINGLY USES THE MAILS FOR THE MAILING, CARRIAGE IN THE MAILS, OR
DELIVERY OF ANYTHING DECLARED BY THIS SECTION TO BE NONMAILABLE  ...
SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE
YEARS, OR BOTH  ...  ."  CONGRESS COULD NOT HAVE MADE IT MORE CLEAR
THAT THE SENDER'S KNOWLEDGE OF THE MATERIAL TO BE MAILED DID NOT
DETERMINE ITS MAILABILITY BUT ONLY HIS RESPONSIBILITY FOR MAILING IT.
NOR IS THERE ANY REASON WHY CONGRESS - IN A CIVIL ACTION - SHOULD HAVE
WANTED IT ANY OTHER WAY.  THE SENDER'S KNOWLEDGE OF THE MATTER SOUGHT
TO BE MAILED IS IMMATERIAL TO THE HARM CAUSED TO THE PUBLIC BY ITS
DISSEMINATION.  FINALLY, INTERPRETING SEC. 1461 TO MEAN WHAT IT SAYS
WOULD NOT GIVE RISE TO THE "SERIOUS CONSTITUTIONAL QUESTION"
ENVISIONED.  THIS FEAR IS PREMISED ENTIRELY ON SMITH V. CALIFORNIA, 361
U.S. 147 (1959), WHICH WAS A CRIMINAL CASE.  SURELY THE PREREQUISITES
TO CRIMINAL RESPONSIBILITY ARE QUITE DIFFERENT FROM THE TESTS FOR THE
USE OF THE MAILS.  THE PRESENT DETERMINATION OF NONMAILABILITY OF BULK
PACKAGES OF MAGAZINES TO NEWSSTANDS RAINS NO SANCTIONS OR
INCRIMINATIONS UPON THE PUBLISHERS OF THESE MAGAZINES NOR DOES IT
CONFISCATE OR IMPOUND THE MAGAZINES.  FOR THESE REASONS, I BELIEVE THE
ONLY POSSIBLE INTERPRETATION OF SEC. 1461 IS THAT THE SENDER'S SCIENTER
IS IMMATERIAL IN DETERMINING THE MAILABILITY OF INFORMATION ON WHERE
OBSCENE MATERIAL CAN BE OBTAINED. 

IN PASSING, IT MIGHT BE NOTED THAT A REQUIREMENT OF SCIENTER GIVES
RISE TO SOME INTERESTING PROBLEMS.  FOR INSTANCE:  IS THE SENDER'S
SCIENTER PERMANENTLY FIXED AT THE TIME THE MATERIAL IS FIRST
UNSUCCESSFULLY OFFERED FOR MAILING, OR IS HIS SCIENTER TO BE RE
EVALUATED WHEN THE MATERIAL IS AGAIN OFFERED FOR MAILING?  HOW ARE
EQUITABLE PRINCIPLES SUCH AS "CLEAN HANDS" AND "HE WHO SEEKS EQUITY
MUST DO EQUITY" SQUARED IN A PROCEEDING TO ENJOIN AN ADMINISTRATIVE NON
MAILABLE ORDER WITH AN INSISTENCE ON MAILING MATERIAL WHICH HAS BEEN
SHOWN TO CONTAIN INFORMATION LEADING TO OBSCENE MATERIAL? 

HOWEVER, ASSUMING THAT THE KNOWLEDGE OF THE SENDER IS MATERIAL IN
DETERMINING THE MAILABILITY OF THESE MAGAZINES, I SUBMIT THE UNDISPUTED
FACTS AND FINDINGS COMPEL AS A MATTER OF LAW THE CONCLUSION THAT THE
PETITIONERS KNEW THAT MATERIALS PUBLISHED IN THEIR MAGAZINES INFORMED
THEIR READERS WHERE OBSCENE MATTER MIGHT BE OBTAINED.  TO SAY THE
LEAST, THESE FACTS AND FINDINGS ARE SUCH THAT THIS COURT OUGHT NOT TO
SET ITSELF UP AS A FACT-FINDER BUT SHOULD REMAND THE CASE FOR A
DETERMINATION BY THOSE WHO HAVE BEEN ENTRUSTED INITIALLY WITH THIS
RESPONSIBILITY.  (FN5) 

THE CONTENT AND DIRECTION OF THE MAGAZINES THEMSELVES ARE A TIP-OFF
AS TO THE NATURE OF THE BUSINESS OF THOSE WHO SOLICIT THROUGH THEM. 
THE MAGAZINES HAVE NO SOCIAL, EDUCATIONAL, OR ENTERTAINMENT QUALITIES
BUT ARE DESIGNED SOLELY AS SEX STIMULANTS FOR HOMOSEXUALS.  THEY
"CONSIST ALMOST ENTIRELY OF PHOTOGRAPHS OF YOUND MEN IN NUDE OR
PRACTICALLY NUDE POSES HANDLED IN SUCH A MANNER AS TO FOCUS ATTENTION
ON THEIR GENITALS OR BUTTOCKS OR TO EMPHASIZE THESE PARTS  ...  ." 
BECAUSE OF THIS CONTENT THE MAGAZINES DO "NOT APPEAL TO THE ORDINARY
MALE ADULT,  ...  WHO WOULD HAVE NOT INTEREST IN THEM AND WOULD NOT BUY
THEM UNDER ORDINARY CIRCUMSTANCES AND  ...  THEREFORE THE READERS OF
THESE PUBLICATIONS CONSIST ALMOST ENTIRELY OF MALE HOMOSEXUALS AND
POSSIBLY A FEW ADOLESCENT MALES  ...  ."  THE PUBLISHERS FREELY ADMIT
THAT THE MAGAZINES ARE PUBLISHED TO APPEAL TO THE MALE HOMOSEXUAL
GROUP.  THE ADVERTISEMENTS AND PHOTOGRAPHER LISTS IN SUCH MAGAZINES
WERE QUITE NATURALLY "DESIGNED SO AS TO ATTRACT THE MALE HOMOSEXUAL AND
TO FURNISH HIM WITH NAMES AND ADDRESSES WHERE NUDE MALE PICTURES IN
POSES AND CONDITIONS WHICH WOULD APPEAL TO HIS PRURIENT INTEREST MAY BE
OBTAINED."  MOREOVER, THE ADVERTISEMENTS THEMSELVES COULD LEAVE NO MORE
DOUBT IN THE PUBLISHERS' MINDS THAN IN THOSE OF THE SOLICITED
PURCHASERS.  TO ILLUSTRATE:  SOME CAPTIONED A PICTURE OF A NUDE OR
SCANTILY ATTIRED YOUNG MAN WITH THE LEGEND "PERFECTLY PROPORTIONED,
HANDSOME, MALE MODELS, AGE 18-26."  OTHERS FEATURED A PHOTOGRAPH OF A
NUDE MALE WITH THE AREA AROUND THE PRIVATES OBVIOUSLY RETOUCHED SO AS
TO COVER THE GENITALS AND PART OF THE PUBIC HAIR AND OFFERED TO FURNISH
AN "ORIGINAL PRINT OF THIS PHOTO."  FINALLY, EACH MAGAZINE SPECIFICALLY
ENDORSED ITS LISTED PHOTOGRAPHERS AND REQUESTED ITS READERS TO SUPPORT
THEM BY PURCHASING THEIR PRODUCTS.  IN ADDITION, THREE OF THE FOUR
MAGAZINES INVOLVED EXPRESSLY REPRESENTED THAT THEY WERE FAMILIAR WITH
THE WORK OF THE PHOTOGRAPHERS LISTED IN THEIR PUBLICATIONS.  (FN6) 

TURNING TO WOMACK, THE PRESIDENT AND DIRECTING FORCE OF ALL THREE
CORPORATE PUBLISHERS, IT IS EVEN CLEARER THAT WE ARE NOT DEALING HERE
WITH A "JACK AND JILL" OPERATION.  MR. WOMACK ADMITTED THAT THE
MAGAZINES WERE PLANNED FOR HOMOSEXUALS, DESIGNED TO APPEAL TO AND
STIMULATE THEIR EROTIC INTERESTS.  TO IMPROVE ON THIS EFFECT, HE MADE
SUGGESTIONS TO PHOTOGRAPHERS AS TO THE TYPE OF PICTURES HE WANTED.  FOR
EXAMPLE, HE INFORMED ONE OF THE STUDIOS LISTED IN HIS PUBLICATIONS THAT
"PHYSIQUE FANS WANT THEIR 'TRUCK DRIVER TYPES' ALREADY CLEANED UP,
SHOWERED, AND READY FOR BED  ... (AND) IT IS ABSOLUTELY ESSENTIAL THAT
THE MODELS HAVE PRETTY FACES AND A PERSONALITY NOT TOTALLY UNRELATED TO
SEX APPEAL."  WOMACK HAD ALSO SUGGESTED TO THE PHOTOGRAPHERS THAT THEY
EXCHANGE CUSTOMER NAMES WITH THE HOPE OF COMPILING A MASTER LIST OF
HOMOSEXUALS.  HE HIMSELF HAD BEEN CONVICTED OF SELLING OBSCENE
PHOTOGRAPHS VIA THE MAILS.  WOMACK V. UNITED STATES, 111 U.S. APP. D.C.
8, 294 F.2D 204 (1961).  MORE RECENTLY HE HAS PLEADED NOT GUILTY BY
REASON OF INSANITY TO LIKE CHARGES.  WASHINGTON POST, FEB. 1, 1962, P.
D-3.  FURTHERMORE, HE WAS WARNED IN MARCH, APRIL, AND JULY OF 1959 THAT
A NUMBER OF HIS PHOTOGRAPHER ADVERTISERS WERE BEING PROSECUTED FOR
MAILING OBSCENE MATTER AND THAT HE MIGHT BE VIOLATING THE LAW IN
TRANSMITTING THROUGH THE MAILS THEIR ADVERTISEMENTS.  HOWEVER, HE
CONTINUED TO DISSEMINATE SUCH INFORMATION THROUGH THE MAILS, REMOVING
PHOTOGRAPHERS FROM HIS LISTS ONLY AS THEY WERE CONVICTED.  FINALLY,
THROUGH ANOTHER CONTROLLED CORPORATION NOT HERE INVOLVED, HE FILLED
ORDERS FOR ONE OF HIS ADVERTISERS SENT IN BY THE READERS OF HIS
MAGAZINES.  THIS MATERIAL WAS FOUND TO BE OBSCENE AND LIKE ALL OF THE
ABOVE FACTS AND FINDINGS IT IS NOT CONTESTED HERE. 

THE CORPORATE PETITIONERS ARE CHARGEABLE WITH THE KNOWLEDGE OF WHAT
THEY DO, AS WELL AS THE KNOWLEDGE OF THEIR PRESIDENT AND LEADER.  HOW
ONE CAN FAIL TO SEE THE OBVIOUS IN THIS RECORD IS BEYOND MY
COMPREHENSION.  IN THE WORDS OF MILTON:  "O DARK, DARK, DARK AMID THE
BLAZE OF NOON."  FOR ONE TO CONCLUDE THAT THE ABOVE UNDISPUTED FACTS
AND FINDINGS ARE INSUFFICIENT TO SHOW THE REQUIRED SCIENTER, HOWEVER
STRINGENTLY IT MAY BE DEFINED, IS IN EFFECT TO REPEAL THE ADVERTISING
PROVISIONS OF SEC. 1461.  TO CONDITION NONMAILABILITY ON PROOF THAT THE
SENDER ACTUALLY SAW THE MATERIAL BEING SOLD BY HIS ADVERTISERS IS TO
PORTRAY THE CONGRESS AS THE "MOTHER" IN THE JINGLE, "MOTHER, MAY I GO
OUT TO SWIM?  YES, MY DARLING DAUGHTER.  HANG YOUR CLOTHES ON A HICKORY
LIMB AND DON'T GO NEAR THE WATER." 

FOR THESE REASONS I WOULD AFFIRM THE DECISION BELOW. 

FN1  39 U.S.C. (SUPP. II) SEC. 4058. 

FN2  I AGREE WITH THE CONCLUSION IN THAT OPINION THAT PETITIONERS'
CONSTITUTIONAL CLAIM CANNOT BE CONSIDERED HERE. 

FN3  THE MAGAZINES HERE INVOLVED WERE SECOND CLASS MATTER AND THUS
WERE UNSEALED AND SUBJECT TO INSPECTION.  39 U.S.C. (SUPP. II) SEC.
4058. 

FN4  "ALL BOOKS, PAMPHLETS, CIRCULARS, PRINTS, &C., OF AN OBSCENE,
VULGAR, OR INDECENT CHARACTER ...  MUST BE WITHDRAWN FROM THE MAILS BY
POSTMASTERS AT EITHER THE OFFICE OF MAILING OR THE OFFICE OF
DELIVERY."  POSTAL LAWS AND REGULATIONS (1873 ED.)  SEC.  88. 

FN5  IF THE EXPRESS REJECTION BY THE JUDICIAL OFFICER OF PETITIONERS'
PROPOSED FINDING THAT THEY HAD "NO PERSONAL KNOWLEDGE OF THE MATERIAL
SOLD BY THE ADVERTISERS" IS TAKEN AS A FINDING TO THE CONTRARY, THEN OF
COURSE THIS IS ENTITLED TO THE DEFERENCE ACCORDED ADMINISTRATIVE
FINDINGS, CF., E.G., LABOR BOARD V. WALTON MFG. CO., 369 U.S. 404
(1962). 

FN6  THE MAGAZINES WERE OFFERED IN SIX BUNDLES, APPARENTLY WITH
COPIES OF EACH OF THE FOUR MAGAZINES INTERMINGLED AMONG THE BUNDLES. 
..END :


















GLIDDEN COMPANY V. ZDANOK 370 U.S. 530 


NO. 242.  ARGUED FEBRUARY 21, 26, 1962.  - DECIDED JUNE 25, 1962.* - 288
F.2D 99; 111 U.S. APP. D.C. 238, 296 F.2D 360, AFFIRMED. 

*TOGETHER WITH NO. 481, LURK V. UNITED STATES, ON CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT,
ARGUED FEBRUARY 21, 1962. 


THE COURT OF CLAIMS AND THE COURT OF CUSTOMS AND PATENT APPEALS ARE
COURTS CREATED UNDER ARTICLE III OF THE CONSTITUTION; AND THEIR JUDGES,
INCLUDING RETIRED JUDGES, MAY VALIDLY SERVE, BY DESIGNATION AND
ASSIGNMENT BY THE CHIEF JUSTICE OF THE UNITED STATES UNDER 28 U.S.C.
SECS. 293(A) AND 294(D), ON UNITED STATES DISTRICT COURTS AND COURTS OF
APPEALS.  PP. 531-589. 

GLIDDEN COMPANY V. ZDANOK ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION JOINED BY MR. JUSTICE BRENNAN AND MR. JUSTICE STEWART. 

IN EX PARTE BAKELITE CORP., 279 U.S. 438, AND WILLIAMS V. UNITED
STATES, 289 U.S. 553, THIS COURT HELD THAT THE UNITED STATES COURT OF
CUSTOMS AND PATENT APPEALS AND THE UNITED STATES COURT OF CLAIMS WERE
NEITHER CONFINED IN JURISDICTION NOR PROTECTED IN INDEPENDENCE BY
ARTICLE III OF THE CONSTITUTION, BUT THAT BOTH HAD BEEN CREATED BY
VIRTUE OF OTHER, SUBSTANTIVE, POWERS POSSESSED BY CONGRESS UNDER
ARTICLE I. THE CONGRESS HAS SINCE PRONOUNCED ITS DISAGREEMENT BY
PROVIDING AS TO EACH THAT "SUCH COURT IS HEREBY DECLARED TO BE A COURT
ESTABLISHED UNDER ARTICLE III OF THE CONSTITUTION OF THE UNITED
STATES."  (FN1)  THE PETITIONERS IN THESE CASES INVITE US TO REAFFIRM
THE AUTHORITY OF OUR EARLIER DECISIONS, AND THUS HOLD FOR NAUGHT THESE
CONGRESSIONAL PRONOUNCEMENTS, AT LEAST AS SOUGHT TO BE APPLIED TO
JUDGES APPOINTED PRIOR TO THEIR ENACTMENT. 

NO. 242 IS A SUIT BROUGHT BY INDIVIDUAL EMPLOYEES IN A NEW YORK STATE
COURT TO RECOVER DAMAGES FOR BREACH OF A COLLECTIVE BARGAINING
AGREEMENT, AND REMOVED TO THE FEDERAL DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK BY THE DEFENDANT EMPLOYER ON THE GROUND OF
DIVERSITY OF CITIZENSHIP.  THE EMPLOYEES' RIGHT TO RECOVER WAS
SUSTAINED BY A DIVIDED PANEL OF THE COURT OF APPEALS, IN AN OPINION BY
JUDGE J. WARREN MADDEN, THEN AN ACTIVE JUDGE OF THE COURT OF CLAIMS
SITTING BY DESIGNATION OF THE CHIEF JUSTICE OF THE UNITED STATES UNDER
28 U.S.C. SEC. 293(A).  (FN2)  NO. 481 IS A CRIMINAL PROSECUTION
INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA AND RESULTING IN A CONVICTION FOR ARMED ROBBERY.  THE TRIAL
WAS PRESIDED OVER BY JUDGE JOSEPH R. JACKSON, A RETIRED JUDGE OF THE
COURT OF CUSTOMS AND PATENT APPEALS SITTING BY SIMILAR DESIGNATION. 
(FN3)  THE PETITIONER'S APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF
APPEALS IN FORMA PAUPERIS, RESPECTING THE VALIDITY OF THIS DESIGNATION
AND ALLEGED TRIAL ERRORS, WAS UPHELD BY THIS COURT LAST TERM, 366 U.S.
712; WE ARE NOW ASKED TO REVIEW THE COURT OF APPEALS' AFFIRMANCE OF HIS
CONVICTION.  BECAUSE OF THE SIGNIFICANCE OF THE "DESIGNATION" ISSUE FOR
THE FEDERAL JUDICIAL SYSTEM, WE GRANTED CERTIORARI IN THE TWO CASES,
368 U.S. 814, 815, LIMITED TO THE QUESTION WHETHER THE JUDGMENT IN
EITHER WAS VITIATED BY THE RESPECTIVE PARTICIPATION OF THE JUDGES
NAMED.  (FN4) 

THE CLAIM ADVANCED BY THE PETITIONERS, THAT THEY WERE DENIED THE
PROTECTION OF JUDGES WITH TENURE AND COMPENSATION GUARANTEED BY ARTICLE
III, HAS NOTHING TO DO WITH THE MANNER IN WHICH EITHER OF THESE JUDGES
CONDUCTED HIMSELF IN THESE PROCEEDINGS.  NO CONTENTION IS MADE THAT
EITHER JUDGE MADDEN OR JUDGE JACKSON DISPLAYED A LACK OF APPROPRIATE
JUDICIAL INDEPENDENCE, OR THAT EITHER SOUGHT BY HIS RULINGS TO CURRY
FAVOR WITH CONGRESS OR THE EXECUTIVE.  BOTH INDEED ENJOY STATUTORY
ASSURANCE OF TENURE AND COMPENSATION, (FN5) AND WERE IT NOT FOR THE
EXPLICIT PROVISIONS OF ARTICLE III WE SHOULD BE QUITE UNABLE TO SAY
THAT EITHER JUDGE'S PARTICIPATION EVEN COLORABLY DENIED THE PETITIONERS
INDEPENDENT JUDICIAL HEARINGS. 

ARTICLE III, SEC. 1, HOWEVER, IS EXPLICIT AND GIVES THE PETITIONERS A
BASIS FOR COMPLAINT WITHOUT REQUIRING THEM TO POINT TO PARTICULAR
INSTANCES OF MISTREATMENT IN THE RECORD.  IT PROVIDES: 

"THE JUDICIAL POWER OF THE UNITED STATES, SHALL BE VESTED IN ONE
SUPREME COURT, AND IN SUCH INFERIOR COURTS AS THE CONGRESS MAY FROM
TIME TO TIME ORDAIN AND ESTABLISH.  THE JUDGES, BOTH OF THE SUPREME AND
INFERIOR COURTS, SHALL HOLD THEIR OFFICES DURING GOOD BEHAVIOUR, AND
SHALL, AT STATED TIMES, RECEIVE FOR THEIR SERVICES, A COMPENSATION,
WHICH SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE IN OFFICE." 
(FN6) 

APART FROM THIS PROVISION, IT IS SETTLED THAT NEITHER THE TENURE NOR
SALARY OF FEDERAL OFFICERS IS CONSTITUTIONALLY PROTECTED FROM
IMPAIRMENT BY CONGRESS.  CRENSHAW V. UNITED STATES, 134 U.S. 99, 107
108; CF. BUTLER V. PENNSYLVANIA, 10 HOW.  402, 416-418.  THE STATUTORY
DECLARATION, THEREFORE, THAT THE JUDGES OF THESE TWO COURTS SHOULD
SERVE DURING GOOD BEHAVIOR AND WITH UNDIMINISHED SALARY, SEE NOTE 5,
SUPRA, WAS INEFFECTIVE TO BIND ANY SUBSEQUENT CONGRESS UNLESS THOSE
JUDGES WERE INVESTED AT APPOINTMENT WITH THE PROTECTIONS OF ARTICLE
III.  UNITED STATES V. FISHER, 109 U.S. 143, 145; SEE MCALLISTER V.
UNITED STATES, 141 U.S. 174, 186.  AND THE PETITIONERS NATURALLY POINT
TO THE BAKELITE AND WILLIAMS CASES, SUPRA, AS ESTABLISHING THAT NO SUCH
CONSTITUTIONAL PROTECTION WAS IN FACT CONFERRED. 

THE DISTINCTION REFERRED TO IN THOSE CASES BETWEEN "CONSTITUTIONAL"
AND "LEGISLATIVE" COURTS HAS BEEN PRODUCTIVE OF MUCH CONFUSION AND
CONTROVERSY.  BECAUSE OF THE HIGHLY THEORETICAL NATURE OF THE PROBLEM
IN ITS PRESENT CONTEXT, (FN7) WE WOULD BE WELL ADVISED TO DECIDE THESE
CASES ON NARROWER GROUNDS IF ANY ARE FAIRLY AVAILABLE.  BUT FOR REASONS
THAT FOLLOW, WE FIND OURSELVES UNABLE TO DO SO.

                                       I. 

NO CHALLENGE TO THE AUTHORITY OF THE JUDGES WAS FILED IN THE COURSE
OF THE PROCEEDINGS BEFORE THEM IN EITHER CASE.  THE SOLICITOR GENERAL,
WHO SUBMITTED BRIEFS AND ARGUMENTS FOR THE UNITED STATES, HAS SEIZED
UPON THIS CIRCUMSTANCE TO SUGGEST THAT THE PETITIONERS SHOULD BE
PRECLUDED BY THE SO-CALLED DE FACTO DOCTRINE FROM QUESTIONING THE
VALIDITY OF THESE DESIGNATIONS FOR THE FIRST TIME ON APPEAL. 

WHATEVER MAY BE THE RULE WHEN A JUDGE'S AUTHORITY IS CHALLENGED AT
THE EARLIEST PRACTICABLE MOMENT, AS IT WAS IN UNITED STATES V. AMERICAN
FOREIGN S.S. CORP., 363 U.S. 685, IN OTHER CIRCUMSTANCES INVOLVING
JUDICIAL AUTHORITY THIS COURT HAS DESCRIBED IT AS WELL SETTLED "THAT
WHERE THERE IS AN OFFICE TO BE FILLED AND ONE ACTING UNDER COLOR OF
AUTHORITY FILLS THE OFFICE AND DISCHARGES ITS DUTIES, HIS ACTIONS ARE
THOSE OF AN OFFICER DE FACTO AND BINDING UPON THE PUBLIC."  MCDOWELL V.
UNITED STATES, 159 U.S. 596, 602.  THE RULE IS FOUNDED UPON AN
OBVIOUSLY SOUND POLICY OF PREVENTING LITIGANTS FROM ABIDING THE OUTCOME
OF A LAWSUIT AND THEN OVERTURNING IT IF ADVERSE UPON A TECHNICALITY OF
WHICH THEY WERE PREVIOUSLY AWARE.  ALTHOUGH A UNITED STATES ATTORNEY
MAY BE PERMITTED ON BEHALF OF THE PUBLIC TO UPSET AN ORDER ISSUED UPON
DEFECTIVE AUTHORITY, FRAD V. KELLY, 302 U.S. 312, A PRIVATE LITIGANT
ORDINARILY MAY NOT.  BALL V. UNITED STATES, 140 U.S. 118, 128-129. 

THE RULE DOES NOT OBTAIN, OF COURSE, WHEN THE ALLEGED DEFECT OF
AUTHORITY OPERATES ALSO AS A LIMITATION ON THIS COURT'S APPELLATE
JURISDICTION.  AYRSHIRE COLLIERIES CORP. V. UNITED STATES, 331 U.S. 132
(THREE-JUDGE COURT); UNITED STATES V. EMHOLT, 105 U.S. 414 (CERTIFICATE
OF DIVIDED OPINION).  IN OTHER CIRCUMSTANCES AS WELL, WHEN THE STATUTE
CLAIMED TO RESTRICT AUTHORITY IS NOT MERELY TECHNICAL BUT EMBODIES A
STRONG POLICY CONCERNING THE PROPER ADMINISTRATION OF JUDICIAL
BUSINESS, THIS COURT HAS TREATED THE ALLEGED DEFECT AS "JURISDICTIONAL"
AND AGREED TO CONSIDER IT ON DIRECT REVIEW EVEN THOUGH NOT RAISED AT
THE EARLIEST PRACTICABLE OPPORTUNITY.  E.G., AMERICAN CONSTRUCTION CO.
V. JACKSONVILLE, T.&K.W.R. CO., 148 U.S. 372, 387-388. 

A FORTIORI IS THIS SO WHEN THE CHALLENGE IS BASED UPON NONFRIVOLOUS
CONSTITUTIONAL GROUNDS.  IN MCDOWELL V. UNITED STATES ITSELF, SUPRA, AT
598-599, THE COURT, WHILE HOLDING THAT ANY DEFECT IN STATUTORY
AUTHORIZATION FOR A PARTICULAR INTRACIRCUIT ASSIGNMENT WAS IMMUNIZED
FROM EXAMINATION BY THE DE FACTO DOCTRINE, SPECIFICALLY PASSED UPON AND
UPHELD THE CONSTITUTIONAL AUTHORITY OF CONGRESS TO PROVIDE FOR SUCH AN
ASSIGNMENT.  AND IN LAMAR V. UNITED STATES, 241 U.S. 103, 117-118, THE
CLAIM THAT AN INTERCIRCUIT ASSIGNMENT VIOLATED THE CRIMINAL VENUE
RESTRICTIONS OF THE SIXTH AMENDMENT AND USURPED THE PRESIDENTIAL
APPOINTING POWER UNDER ART. II, SEC. 2, WAS HEARD HERE AND DETERMINED
UPON ITS MERITS, DESPITE THE FACT THAT IT HAD NOT BEEN RAISED IN THE
DISTRICT COURT OR IN THE COURT OF APPEALS OR EVEN IN THIS COURT UNTIL
THE FILING OF A SUPPLEMENTAL BRIEF UPON A SECOND REQUEST FOR REVIEW. 

THE ALLEGED DEFECT OF AUTHORITY HERE RELATES TO BASIC CONSTITUTIONAL
PROTECTIONS DESIGNED IN PART FOR THE BENEFIT OF LITIGANTS.  SEE
O'DONOGHUE V. UNITED STATES, 289 U.S. 516, 532-534.  IT SHOULD BE
EXAMINABLE AT LEAST ON DIRECT REVIEW, WHERE ITS CONSIDERATION
ENCOUNTERS NONE OF THE OBJECTIONS ASSOCIATED WITH THE PRINCIPLE OF RES
JUDICATA, THAT THERE BE AN END TO LITIGATION.  AT THE MOST IS WEIGHED
IN OPPOSITION THE DISRUPTION TO SOUND APPELLATE PROCESS ENTAILED BY
ENTERTAINING OBJECTIONS NOT RAISED BELOW, AND THAT IS PLAINLY
INSUFFICIENT TO OVERCOME THE STRONG INTEREST OF THE FEDERAL JUDICIARY
IN MAINTAINING THE CONSTITUTIONAL PLAN OF SEPARATION OF POWERS.  SO
THIS COURT HAS CONCLUDED ON AN ANALOGOUS BALANCE STRUCK TO PROTECT
AGAINST INTRUDING FEDERAL JURISDICTION INTO THE AREA CONSTITUTIONALLY
RESERVED TO THE STATES:  WHETHER DIVERSITY OF CITIZENSHIP EXISTS MAY BE
QUESTIONED ON DIRECT REVIEW FOR THE FIRST TIME IN THIS COURT. 
MANSFIELD, C.&L.M.R. CO. V. SWAN, 111 U.S. 379, 382; CITY OF
GAINESVILLE V. BROWN-CRUMMER INVESTMENT CO., 277 U.S. 54, 59.  WE HOLD
THAT IT IS SIMILARLY OPEN TO THESE PETITIONERS TO CHALLENGE THE
CONSTITUTIONAL AUTHORITY OF THE JUDGES BELOW. 

             II. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA FOUND IT
UNNECESSARY TO REACH THE QUESTION WHETHER JUDGE JACKSON ENJOYED
CONSTITUTIONAL SECURITY OF TENURE AND COMPENSATION.  IT HELD THAT EVEN
IF HE DID NOT, CONGRESS MIGHT AUTHORIZE HIS ASSIGNMENT TO COURTS IN THE
DISTRICT OF COLUMBIA, BY VIRTUE OF ITS POWER "TO EXERCISE EXCLUSIVE
LEGISLATION IN ALL CASES WHATSOEVER" OVER THE DISTRICT.  ART. I, SEC.
8, CL. 17.  THE SOLICITOR GENERAL, IN SUPPORT OF THAT RULING, ARGUES
HERE THAT BECAUSE THE CRIMINAL CHARGE AGAINST PETITIONER LURK WAS
VIOLATION OF A LOCAL STATUTE, D.C. CODE, 1961, SEC. 22-2901, RATHER
THAN OF ONE NATIONAL IN APPLICATION, ITS TRIAL DID NOT REQUIRE THE
ASSIGNMENT OF AN ARTICLE III JUDGE. 

THE QUESTION THUS RAISED IS ITSELF OF CONSTITUTIONAL DIMENSION, AND
ONE WHICH WE NEED NOT REACH IF AN ARTICLE III JUDGE WAS IN FACT
ASSIGNED.  IN THE COMPANION CASE, NO. 242, THE NECESSITY FOR SUCH A
JUDGE IS UNCONTESTED.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT SAT
TO DETERMINE A QUESTION OF STATE CONTRACT LAW PRESENTED FOR ITS
DECISION SOLELY BY REASON OF THE DIVERSE CITIZENSHIP OF THE LITIGANTS. 
(FN8)  AUTHORITY FOR THE FEDERAL GOVERNMENT TO DECIDE QUESTIONS OF
STATE LAW EXISTS ONLY BY VIRTUE OF THE DIVERSITY CLAUSE IN ARTICLE
III.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64; SEE MURRAY'S LESSEE V.
HOBOKEN LAND & IMPROVEMENT CO., 18 HOW.  272 284.  FOR THIS REASON, THE
QUESTION WHETHER JUDGE MADDEN ENJOYED CONSTITUTIONAL INDEPENDENCE IS
INESCAPABLY PRESENTED.  SINCE DECISION OF THAT QUESTION INVOLVES
CONSIDERATIONS BEARING DIRECTLY UPON THE CONSTITUTIONAL STATUS OF JUDGE
JACKSON, WE DEEM IT APPROPRIATE TO DISPOSE OF BOTH CASES ON THE SAME
GROUNDS, WITHOUT AT PRESENT INTIMATING ANY VIEW AS TO THE CORRECTNESS
OF THE HOLDING BELOW BY THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

                                       III. 

THE NEXT QUESTION IS WHETHER THE CHARACTER OF THE JUDGES WHO SAT IN
THESE CASES MAY BE DETERMINED WITHOUT REFERENCE TO THE CHARACTER OF THE
COURTS TO WHICH THEY WERE ORIGINALLY APPOINTED.  IF IT WERE PLAIN THAT
THESE JUDGES WERE INVESTED UPON CONFIRMATION WITH ARTICLE III TENURE
AND COMPENSATION, IT WOULD BE UNNECESSARY FOR PRESENT PURPOSES TO
CONSIDER THE CONSTITUTIONAL STATUS OF THE COURT OF CLAIMS AND THE COURT
OF CUSTOMS AND PATENT APPEALS. 

NO SUCH COURSE, HOWEVER, APPEARS TO BE OPEN.  THE STATUTES UNDER
WHICH JUDGE MADDEN AND JUDGE JACKSON WERE APPOINTED SPEAK OF SERVICE
ONLY ON THOSE COURTS.  28 U.S.C. SECS. 171, 211.  THEY WERE NOT, AS
WERE THE JUDGES SELECTED FOR THE LATE COMMERCE COURT, APPOINTED AS
"ADDITIONAL CIRCUIT JUDGES," ACT OF JUNE 18, 1910, C. 309, 36 STAT.
539, 540, WHOSE TENURE MIGHT BE CONSTITUTIONALLY SECURED REGARDLESS OF
THE FORTUNES OF THEIR COURTS.  SEE 50 CONG.  REC. 5409-5418 (1913);
DONEGAN V. DYSON, 269 U.S. 49; FRANKFURTER AND LANDIS, THE BUSINESS OF
THE SUPREME COURT (1927), 168-173.  IT IS TRUE THAT AT THE TIME OF
JUDGE JACKSON'S APPOINTMENT THERE WAS IN FORCE A STATUTE AUTHORIZING
ASSIGNMENT OF COURT OF CUSTOMS AND PATENT APPEALS JUDGES TO SERVE ON
THE COURTS OF THE DISTRICT OF COLUMBIA.  ACT OF SEPTEMBER 14, 1922, C.
306, SEC. 5, 42 STAT. 837, 839.  AT THAT TIME, HOWEVER, BEFORE THE
O'DONOGHUE DECISION, THERE SEEMS TO HAVE BEEN A CONSENSUS THAT THE
COURTS OF THE DISTRICT WERE NOT CONFINED OR PROTECTED BY ARTICLE III;
AS LATE AS 1930, THIS COURT REGARDED IT AS "RECOGNIZED THAT THE COURTS
OF THE DISTRICT OF COLUMBIA ARE NOT CREATED UNDER THE JUDICIARY ARTICLE
OF THE CONSTITUTION, BUT ARE LEGISLATIVE COURTS  ...  ."  FEDERAL RADIO
COMM'N V. GENERAL ELECTRIC CO., 281 U.S. 464, 468; AND SEE KATZ,
FEDERAL LEGISLATIVE COURTS, 43 HARV.  L. REV. 894, 899-903 (1930).  THE
1922 ACT CANNOT THEREFORE BE VIEWED EX PROPRIO VIGORE AS CONFERRING
ARTICLE III STATUS ON JUDGES SUBSEQUENTLY APPOINTED TO THE COURT OF
CUSTOMS AND PATENT APPEALS.  (FN9)    A MORE NOVEL SUGGESTION IS THAT
THE ASSIGNMENT STATUTE ITSELF, 28 U.S.C. SECS. 291-296, AUTHORIZED THE
CHIEF JUSTICE TO APPOINT INFERIOR ARTICLE III JUDGES IN THE COURSE OF
DESIGNATING THEM FOR SERVICE ON ARTICLE III COURTS.  (FN10)  SEE
SHARTEL, FEDERAL JUDGES - APPOINTMENT, SUPERVISION, AND REMOVAL - SOME
POSSIBILITIES UNDER THE CONSTITUTION, 28 MICH. L. REV. 485 (1930); CF.
EX PARTE SIEBOLD, 100 U.S. 371, 397-398; RICE V. AMES, 180 U.S. 371,
378.  BUT WE NEED NOT CONSIDER THE CONSTITUTIONAL QUESTIONS INVOLVED IN
THIS SUGGESTION, FOR THE STATUTE DOES NOT READILY LEND ITSELF TO SUCH A
CONSTRUCTION.  IF NOTHING ELSE, THE AUTHORITY GIVEN THE CHIEF JUSTICE
IN 28 U.S.C. SEC. 295 TO REVOKE ASSIGNMENTS PREVIOUSLY MADE IS WHOLLY
INCONSISTENT WITH A READING OF THE STATUTE AS EMPOWERING HIM TO APPOINT
INFERIOR ARTICLE III JUDGES.  JUDGES ASSIGNED BY THE CHIEF JUSTICE WHO
ARE NOT PREVIOUSLY ENDOWED WITH CONSTITUTIONAL SECURITY OF TENURE AND
COMPENSATION THUS CAN GAIN NOTHING BY THE DESIGNATION.  (FN11) 

IT IS SIGNIFICANT THAT CONGRESS DID NOT ENACT THE PRESENT BROAD
ASSIGNMENT STATUTE UNTIL AFTER IT HAD DECLARED THE COURT OF CLAIMS AND
THE COURT OF CUSTOMS AND PATENT APPEALS TO BE CONSTITUTIONAL COURTS. 
ACT OF AUGUST 25, 1958, 72 STAT. 848.  A MAJOR PURPOSE OF THESE
DECLARATIONS WAS TO ELIMINATE UNCERTAINTY WHETHER REGULAR ARTICLE III
JUDGES MIGHT BE ASSIGNED TO ASSIST IN THE BUSINESS OF THOSE COURTS WHEN
DISABILITY OR DISQUALIFICATION MADE IT DIFFICULT FOR THEM TO OBTAIN A
QUORUM.  (FN12)  THOSE DOUBTS, SUGGESTED BY DICTA IN EX PARTE BAKELITE
CORP., 279 U.S. 438, 460, WOULD BE EXPANDED RATHER THAN ALLAYED WERE WE
TO HOLD THAT THE JUDGES OF THE COURT OF CLAIMS AND THE COURT OF CUSTOMS
AND PATENT APPEALS ENJOY THE PROTECTION OF ARTICLE III WHILE LEAVING AT
LARGE THE STATUS OF THOSE COURTS.  FOR THESE VARIOUS REASONS, THE
CONSTITUTIONAL QUALITY OF TENURE AND COMPENSATION EXTENDED JUDGES
MADDEN AND JACKSON AT THE TIME OF THEIR CONFIRMATION MUST BE DEEMED TO
HAVE DEPENDED UPON THE CONSTITUTIONAL STATUS OF THE COURTS TO WHICH
THEY WERE PRIMARILY APPOINTED. 

                                       IV. 

IN DETERMINING THE CONSTITUTIONAL CHARACTER OF THE COURT OF CLAIMS
AND THE COURT OF CUSTOMS AND PATENT APPEALS, AS WE ARE THUS LED TO DO,
WE MAY NOT DISREGARD CONGRESS' DECLARATION THAT THEY WERE CREATED UNDER
ARTICLE III.  OF COURSE, CONGRESS MAY NOT BY FIAT OVERTURN THE
CONSTITUTIONAL DECISIONS OF THIS COURT, BUT THE LEGISLATIVE HISTORY OF
THE 1953 AND 1958 DECLARATIONS MAKES PLAIN THAT IT WAS FAR FROM
ATTEMPTING ANY SUCH THING.  TYPICAL IS A STATEMENT IN THE 1958 HOUSE
REPORT THAT THE PURPOSE OF THE LEGISLATION WAS TO "DECLARE WHICH OF THE
POWERS CONGRESS WAS INTENDING TO EXERCISE WHEN THE COURT WAS CREATED." 
H.R.  REP. NO. 2349, 85TH CONG., 2D SESS. 3 (1958); ACCORD, H.R. REP.
NO. 695, 83D CONG., 1ST SESS. 3, 5, 7 (1953); AND SEE S. REP. NO. 275,
83D CONG., 1ST SESS. 2 (1953), SUBSTITUTED FOR S. REP. NO. 261, 83D
CONG., 1ST SESS. 2 (1953); 99 CONG. REC. 8943, 8944 (1953)(REMARKS OF
SENATOR GORE). 

"SUBSEQUENT LEGISLATION WHICH DECLARES THE INTENT OF AN EARLIER LAW,"
THIS COURT HAS NOTED, "IS NOT, OF COURSE, CONCLUSIVE IN DETERMINING
WHAT THE PREVIOUS CONGRESS MEANT.  BUT THE LATER LAW IS ENTITLED TO
WEIGHT WHEN IT COMES TO THE PROBLEM OF CONSTRUCTION."  FEDERAL HOUSING
ADMINISTRATION V. DARLINGTON, INC., 358 U.S. 84, 90; ACCORD, NEW YORK,
P. & N.R. CO. V. PENINSULA EXCHANGE, 240 U.S. 34, 39.  ESPECIALLY IS
THIS SO WHEN THE CONGRESS HAS BEEN STIMULATED BY DECISIONS OF THIS
COURT TO INVESTIGATE THE HISTORICAL MATERIALS INVOLVED AND HAS DRAWN
FROM THEM A CONTRARY CONCLUSION.  UNITED STATES V. HUTCHESON, 312 U.S.
219, 235-237.  AS EXAMINATION OF THE HOUSE AND SENATE REPORTS MAKES
EVIDENT, THAT IS WHAT OCCURRED HERE.  E.G., S. REP. NO. 2309, 85TH
CONG., 2D SESS. 2-3 (1958); H.R. REP. NO. 695, 83D CONG., 1ST SESS. 3-5
(1953). 

AT THE TIME WHEN BAKELITE AND WILLIAMS WERE DECIDED, THE COURT DID
NOT HAVE THE BENEFIT OF THIS CONGRESSIONAL UNDERSTANDING.  THE WILLIAMS
CASE, FOR EXAMPLE, AROSE UNDER THE LEGISLATIVE APPROPRIATION ACT OF
JUNE 30, 1932, C. 314, SEC. 107(A)(5), 47 STAT. 382, 402, WHICH REDUCED
THE SALARY OF ALL JUDGES "EXCEPT JUDGES WHOSE COMPENSATION MAY NOT,
UNDER THE CONSTITUTION, BE DIMINISHED DURING THEIR CONTINUANCE IN
OFFICE."  MR. JUSTICE SUTHERLAND, WHO WROTE THE COURT'S OPINIONS IN
BOTH WILLIAMS AND O'DONOGHUE, WAS PLAINLY DISADVANTAGED BY THE ABSENCE
OF CONGRESSIONAL INTIMATION AS TO WHICH JUDGES OF WHICH COURTS WERE TO
BE DEEMED EXEMPTED.  SEE O'DONOGHUE V. UNITED STATES, 289 U.S. 516,
529. 

IN THE BAKELITE CASE, TO BE SURE, MR. JUSTICE VAN DEVANTER SAID OF AN
ARGUMENT DRAWN FROM TENUOUS EVIDENCE OF CONGRESSIONAL UNDERSTANDING
THAT IT "MISTAKENLY ASSUMES THAT WHETHER A COURT IS OF ONE CLASS OR THE
OTHER DEPENDS ON THE INTENTION OF CONGRESS, WHEREAS THE TRUE TEST LIES
IN THE POWER UNDER WHICH THE COURT WAS CREATED AND IN THE JURISDICTION
CONFERRED."  279 U.S., AT 459.  YET HE WOULD HARDLY HAVE DENIED THAT
EXPLICIT EVIDENCE OF LEGISLATIVE INTENDMENT CONCERNING THE FACTORS HE
THOUGHT CONTROLLING MAY BE RELEVANT AND INDEED HIGHLY PERSUASIVE.  IN
ANY EVENT, THE BAKELITE DICTUM DID NOT EMBARRASS THE COURT IN DECIDING
O'DONOGHUE, WHERE IT LOOKED SEARCHINGLY AT "CONGRESSIONAL PRACTICE" TO
DETERMINE WHAT CLASSIFICATION THAT BODY "RECOGNIZES."  289 U.S., AT 548
550.  WE THINK THE FORTHRIGHT STATEMENT OF UNDERSTANDING EMBRACED IN
THE 1953 AND 1958 DECLARATIONS MAY BE TAKEN AS SIMILARLY PERSUASIVE
EVIDENCE FOR THE PROBLEM NOW BEFORE US. 

TO GIVE DUE WEIGHT TO THESE CONGRESSIONAL DECLARATIONS IS NOT OF
COURSE TO COMPROMISE THE AUTHORITY OR RESPONSIBILITY OF THIS COURT AS
THE ULTIMATE EXPOSITOR OF THE CONSTITUTION.  THE BAKELITE AND WILLIAMS
DECISIONS HAVE LONG BEEN CONSIDERED OF QUESTIONABLE SOUNDNESS.  SEE,
E.G., BROWN, THE RENT IN OUR JUDICIAL ARMOR, 10 G.W.L. REV. 127 (1941);
HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (1953),
348-351; 1 MOORE, FEDERAL PRACTICE (2D ED. 1961), 71 N. 21.  THEY STAND
UNEASILY NEXT TO O'DONOGHUE, MUCH OF WHOSE REASONING IN SUSTAINING THE
ARTICLE III STATUS OF THE DISTRICT OF COLUMBIA SUPERIOR COURTS SEEMS
APPLICABLE TO THE COURT OF CLAIMS AND THE COURT OF CUSTOMS AND PATENT
APPEALS.  IN POPE V. UNITED STATES, 323 U.S. 1, 13-14, WHERE THE
SOLICITOR GENERAL ARGUED AT LENGTH AGAINST THE CONTINUED VITALITY OF
BAKELITE AND WILLIAMS, THEIR AUTHORITY WAS REGARDED AS AN OPEN
QUESTION. 

FURTHERMORE, APART FROM THIS COURT'S CONSIDERED PRACTICE NOT TO APPLY
STARE DECISIS AS RIGIDLY IN CONSTITUTIONAL AS IN NONCONSTITUTIONAL
CASES, E.G., UNITED STATES V. SOUTH BUFFALO R. CO., 333 U.S. 771, 774
775; SEE BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393, 405-408 AND N.
1-3 (BRANDEIS, J., DISSENTING), THERE IS THE FACT THAT CONGRESS HAS
ACTED ON ITS UNDERSTANDING AND HAS PROVIDED FOR ASSIGNMENT OF JUDGES
WHO HAVE MADE DECISIONS THAT ARE NOW SAID TO BE IMPEACHABLE.  IN THESE
CIRCUMSTANCES, THE PRACTICAL CONSIDERATION UNDERLYING THE DOCTRINE OF
STARE DECISIS - PROTECTION OF GENERATED EXPECTATIONS - ACTUALLY
MILITATES IN FAVOR OF REEXAMINING THE DECISIONS.  WE ARE WELL-ADVISED,
THEREFORE, TO REGARD THE QUESTIONS DECIDED IN THOSE CASES AS ENTIRELY
OPEN TO RECONSIDERATION. 

                                        V. 

THE CONSTITUTION NOWHERE MAKES REFERENCE TO "LEGISLATIVE COURTS." 
THE POWER GIVEN CONGRESS IN ART. I, SEC. 8, CL. 9, "TO CONSTITUTE
TRIBUNALS INFERIOR TO THE SUPREME COURT," PLAINLY RELATES TO THE
"INFERIOR COURTS" PROVIDED FOR IN ART. III, SEC. 1; IT HAS NEVER BEEN
RELIED ON FOR ESTABLISHMENT OF ANY OTHER TRIBUNALS. 

THE CONCEPT OF A LEGISLATIVE COURT DERIVES FROM THE OPINION OF CHIEF
JUSTICE MARSHALL IN AMERICAN INSURANCE CO. V. CANTER, 1 PET. 511,
DEALING WITH COURTS ESTABLISHED IN A TERRITORY.  A CARGO OF COTTON
SALVAGED FROM A WRECK OFF THE COAST OF FLORIDA HAD BEEN PURCHASED BY
CANTER AT A JUDICIAL SALE ORDERED BY A COURT AT KEY WEST INVESTED BY
THE TERRITORIAL LEGISLATURE WITH JURISDICTION OVER CASES OF SALVAGE. 
THE INSURERS, TO WHOM THE PROPERTY IN THE CARGO HAD BEEN ABANDONED BY
THE OWNERS, BROUGHT A LIBEL FOR RESTITUTION, CLAIMING IN PART THAT THE
PRIOR DECREE WAS VOID BECAUSE NOT RENDERED IN A COURT CREATED BY
CONGRESS, AS REQUIRED FOR THE EXERCISE OF ADMIRALTY JURISDICTION UNDER
ARTICLE III.  CHIEF JUSTICE MARSHALL FOR THE COURT SWEPT THIS OBJECTION
ASIDE BY NOTING THAT THE SUPERIOR COURTS OF FLORIDA, WHICH HAD BEEN
CREATED BY CONGRESS, WERE STAFFED WITH JUDGES APPOINTED FOR ONLY FOUR
YEARS, AND CONCLUDED THAT ARTICLE III DID NOT APPLY IN THE
TERRITORIES: 

"THESE COURTS, THEN, ARE NOT CONSTITUTIONAL COURTS, IN WHICH THE
JUDICIAL POWER CONFERRED BY THE CONSTITUTION ON THE GENERAL GOVERNMENT,
CAN BE DEPOSITED.  THEY ARE INCAPABLE OF RECEIVING IT.  THEY ARE
LEGISLATIVE COURTS, CREATED IN VIRTUE OF THE GENERAL RIGHT OF
SOVEREIGNTY WHICH EXISTS IN THE GOVERNMENT, OR IN VIRTUE OF THAT CLAUSE
WHICH ENABLES CONGRESS TO MAKE ALL NEEDFUL RULES AND REGULATIONS,
RESPECTING THE TERRITORY BELONGING TO THE UNITED STATES."  1 PET., AT
546. 

BY THESE ARRESTING OBSERVATIONS THE CHIEF JUSTICE CERTAINLY DID NOT
MEAN TO IMPLY THAT THE CASE HEARD BY THE KEY WEST COURT WAS NOT ONE OF
ADMIRALTY JURISDICTION OTHERWISE PROPERLY JUSTICIABLE IN A FEDERAL
DISTRICT COURT SITTING IN ONE OF THE STATES.  ELSEWHERE IN THE OPINION
HE DISTINCTLY REFERRED TO THE PROVISIONS OF ARTICLE III TO SHOW THAT IT
WAS SUCH A CASE.  1 PET., AT 545.  ALL THE CHIEF JUSTICE MEANT, AND
WHAT THE CASE HAS EVER AFTER BEEN TAKEN TO ESTABLISH, IS THAT IN THE
TERRITORIES CASES AND CONTROVERSIES FALLING WITHIN THE ENUMERATION OF
ARTICLE III MAY BE HEARD AND DECIDED IN COURTS CONSTITUTED WITHOUT
REGARD TO THE LIMITATIONS OF THAT ARTICLE; (FN13) COURTS, THAT IS,
HAVING JUDGES OF LIMITED TENURE AND ENTERTAINING BUSINESS BEYOND THE
RANGE OF CONVENTIONAL CASES AND CONTROVERSIES. 

THE REASONS FOR THIS ARE NOT DIFFICULT TO APPRECIATE SO LONG AS THE
CHARACTER OF THE EARLY TERRITORIES AND SOME OF THE PRACTICAL PROBLEMS
ARISING FROM THEIR ADMINISTRATION ARE KEPT IN MIND.  THE ENTIRE
GOVERNMENTAL RESPONSIBILITY IN A TERRITORY WHERE THERE WAS NO STATE
GOVERNMENT TO ASSUME THE BURDEN OF LOCAL REGULATION DEVOLVED UPON THE
NATIONAL GOVERNMENT.  THIS MEANT THAT COURTS HAD TO BE ESTABLISHED AND
STAFFED WITH SUFFICIENT JUDGES TO HANDLE THE GENERAL JURISDICTION THAT
ELSEWHERE WOULD HAVE BEEN EXERCISED IN LARGE PART BY THE COURTS OF A
STATE.  (FN14)  BUT WHEN THE TERRITORIES BEGAN ENTERING INTO STATEHOOD,
AS THEY SOON DID, THE AUTHORITY OF THE TERRITORIAL COURTS OVER MATTERS
OF STATE CONCERN CEASED; AND IN A TIME WHEN THE SIZE OF THE FEDERAL
JUDICIARY WAS STILL RELATIVELY SMALL, THAT LEFT THE NATIONAL GOVERNMENT
WITH A SIGNIFICANT NUMBER OF TERRITORIAL JUDGES ON ITS HANDS AND NO
PLACE TO PUT THEM.  WHEN FLORIDA WAS ADMITTED AS A STATE, FOR EXAMPLE,
CONGRESS REPLACED THREE TERRITORIAL COURTS OF GENERAL JURISDICTION
COMPRISING FIVE JUDGES WITH ONE FEDERAL DISTRICT COURT AND ONE JUDGE. 
(FN15) 

AT THE SAME TIME AS THE ABSENCE OF A FEDERAL STRUCTURE IN THE
TERRITORIES PRODUCED PROBLEMS NOT FORSEEN BY THE FRAMERS OF ARTICLE
III, THE REALITIES OF TERRITORIAL GOVERNMENT TYPICALLY MADE IT LESS
URGENT THAT JUDGES THERE ENJOY THE INDEPENDENCE FROM CONGRESS AND THE
PRESIDENT ENVISIONED BY THAT ARTICLE.  FOR THE TERRITORIES WERE NOT
RULED IMMEDIATELY FROM WASHINGTON; IN A DAY OF POOR ROADS AND SLOW
MAILS, IT WAS UNTHINKABLE THAT THEY SHOULD BE. RATHER, CONGRESS LEFT
MUNICIPAL LAW TO BE DEVELOPED LARGELY BY THE TERRITORIAL LEGISLATURES,
WITHIN THE FRAME-WORK OF ORGANIC ACTS AND SUBJECT TO A RETAINED POWER
OF VETO.  (FN16)  THE SCOPE OF SELF-GOVERNMENT EXERCISED UNDER THESE
DELEGATIONS WAS NEARLY AS BROAD AS THAT ENJOYED BY THE STATES, AND THE
FREEDOM OF THE TERRITORIES TO DISPENSE WITH PROTECTIONS DEEMED INHERENT
IN A SEPARATION OF GOVERNMENTAL POWERS WAS AS FULLY RECOGNIZED. 
(FN17) 

AGAINST THIS HISTORICAL BACKGROUND, IT IS HARDLY SURPRISING THAT
CHIEF JUSTICE MARSHALL DECIDED AS HE DID.  IT WOULD HAVE BEEN
DOCTRINAIRE IN THE EXTREME TO DENY THE RIGHT OF CONGRESS TO INVEST
JUDGES OF ITS CREATION WITH AUTHORITY TO DISPOSE OF THE JUDICIAL
BUSINESS OF THE TERRITORIES.  IT WOULD HAVE BEEN AT LEAST AS DOGMATIC,
HAVING RECOGNIZED THE RIGHT, TO FASTEN ON THOSE JUDGES A GUARANTEE OF
TENURE THAT CONGRESS COULD NOT PUT TO USE AND THAT THE EXIGENCIES OF
THE TERRITORIES DID NOT REQUIRE.  MARSHALL CHOSE NEITHER COURSE;
CONSCIOUS AS EVER OF HIS RESPONSIBILITY TO SEE THE CONSTITUTION WORK,
HE RECOGNIZED A GREATER FLEXIBILITY IN CONGRESS TO DEAL WITH PROBLEMS
ARISING OUTSIDE THE NORMAL CONTEXT OF A FEDERAL SYSTEM. 

THE SAME CONFLUENCE OF PRACTICAL CONSIDERATIONS THAT DICTATED THE
RESULT IN CANTER HAS GOVERNED THE DECISION IN LATER CASES SANCTIONING
THE CREATION OF OTHER COURTS WITH JUDGES OF LIMITED TENURE.  IN UNITED
STATES V. COE, 155 U.S. 76, 85-86, FOR EXAMPLE, THE COURT SUSTAINED THE
AUTHORITY OF THE COURT OF PRIVATE LAND CLAIMS TO ADJUDICATE CLAIMS
UNDER TREATIES TO LAND IN THE TERRITORIES, BUT LEFT IT EXPRESSLY OPEN
WHETHER SUCH A COURSE MIGHT BE FOLLOWED WITHIN THE STATES.  THE CHOCTAW
AND CHICKASAW CITIZENSHIP COURT WAS SIMILARLY CREATED TO DETERMINE
QUESTIONS OF TRIBAL MEMBERSHIP RELEVANT TO PROPERTY CLAIMS WITHIN
INDIAN TERRITORY UNDER THE EXCLUSIVE CONTROL OF THE NATIONAL
GOVERNMENT.  SEE STEPHENS V. CHEROKEE NATION, 174 U.S. 445; EX PARTE
JOINS, 191 U.S. 93; WALLACE V. ADAMS, 204 U.S. 415.  UPON LIKE
CONSIDERATIONS, ARTICLE III HAS BEEN VIEWED AS INAPPLICABLE TO COURTS
CREATED IN UNINCORPORATED TERRITORIES OUTSIDE THE MAINLAND, DOWNES V.
BIDWELL, 182 U.S. 244, 266-267; BALZAC V. PORTO RICO, 258 U.S. 298, 312
313; CF. DORR V. UNITED STATES, 195 U.S. 138, 145, 149, AND TO THE
CONSULAR COURTS ESTABLISHED BY CONCESSIONS FROM FOREIGN COUNTRIES, IN
RE ROSS, 140 U.S. 453, 464-465, 480.  (FN18)    THE TOUCHSTONE OF
DECISION IN ALL THESE CASES HAS BEEN THE NEED TO EXERCISE THE
JURISDICTION THEN AND THERE AND FOR A TRANSITORY PERIOD.  WHETHER
CONSTITUTIONAL LIMITATIONS ON THE EXERCISE OF JUDICIAL POWER HAVE BEEN
HELD INAPPLICABLE HAS DEPENDED ON THE PARTICULAR LOCAL SETTING, THE
PRACTICAL NECESSITIES, AND THE POSSIBLE ALTERNATIVES.  WHEN THE
PECULIAR REASONS JUSTIFYING INVESTITURE OF JUDGES WITH LIMITED TENURE
HAVE NOT BEEN PRESENT, THE CANTER HOLDING HAS NOT BEEN DEEMED
CONTROLLING.  O'DONOGHUE V. UNITED STATES, 289 U.S. 516, 536-539. 
SINCE THE CONDITIONS OBTAINING IN ONE TERRITORY HAVE BEEN ASSUMED TO
EXIST IN EACH, THIS COURT HAS IN THE PAST ENTERTAINED A PRESUMPTION
THAT EVEN THOSE TERRITORIAL JUDGES WHO HAVE BEEN EXTENDED STATUTORY
ASSURANCES OF LIFE TENURE AND UNDIMINISHED COMPENSATION HAVE BEEN SO
FAVORED AS A MATTER OF LEGISLATIVE GRACE AND NOT OF CONSTITUTIONAL
COMPULSION.  MCALLISTER V. UNITED STATES, 141 U.S. 174, 186.  (FN19)
BY A PARITY OF REASONING, HOWEVER, THE PRESUMPTION SHOULD BE REVERSED
WHEN CONGRESS CREATES COURTS THE CONTINUING EXERCISE OF WHOSE
JURISDICTION IS UNEMBARRASSED BY SUCH PRACTICAL DIFFICULTIES.  SEE
MOOKINI V. UNITED STATES, 303 U.S. 201, 205.  AS THE BAKELITE AND
WILLIAMS OPINIONS RECOGNIZE, THE COURT OF CLAIMS AND THE COURT OF
CUSTOMS AND PATENT APPEALS WERE CREATED TO CARRY INTO EFFECT POWERS
ENJOYED BY THE NATIONAL GOVERNMENT OVER SUBJECT MATTER - ROUGHLY,
PAYMENT OF DEBTS AND COLLECTION OF CUSTOMS REVENUE - AND NOT OVER
LOCALITIES.  WHAT THOSE OPINIONS FAIL TO DEAL WITH IS WHETHER THAT
DISTINCTION DEPRIVES AMERICAN INSURANCE CO. V. CANTER OF CONTROLLING
FORCE. 

THE BAKELITE OPINION DID NOT INQUIRE WHETHER THERE MIGHT BE SUCH A
DISTINCTION.  AFTER SKETCHING THE HISTORY OF THE TERRITORIAL AND
CONSULAR COURTS, IT CONTINUED AT ONCE: 

"LEGISLATIVE COURTS ALSO MAY BE CREATED AS SPECIAL TRIBUNALS TO
EXAMINE AND DETERMINE VARIOUS MATTERS, ARISING BETWEEN THE GOVERNMENT
AND OTHERS, WHICH FROM THEIR NATURE DO NOT REQUIRE JUDICIAL
DETERMINATION AND YET ARE SUSCEPTIBLE OF IT."  279 U.S., AT 451. 

SINCE IN THE COURT'S VIEW THE JURISDICTION CONFERRED ON BOTH THE COURT
OF CLAIMS AND THE COURT OF CUSTOMS AND PATENT APPEALS INCLUDED "NOTHING
WHICH INHERENTLY OR NECESSARILY REQUIRES JUDICIAL DETERMINATION,"
(FN20) BOTH COULD HAVE BEEN AND WERE CREATED AS LEGISLATIVE COURTS. 

WE NEED NOT PAUSE TO ASSESS THE COURT'S CHARACTERIZATION OF THE
JURISDICTION CONFERRED ON THOSE COURTS, BEYOND INDICATING CERTAIN
RESERVATIONS ABOUT ITS ACCURACY.  (FN21)  NOR NEED WE NOW EXPLORE THE
EXTENT TO WHICH CONGRESS MAY COMMIT THE EXECUTION OF EVEN "INHERENTLY"
JUDICIAL BUSINESS TO TRIBUNALS OTHER THAN ARTICLE III COURTS.  WE MAY
AND DO ASSUME, FOR PRESENT PURPOSES, THAT NONE OF THE JURISDICTION
VESTED IN OUR TWO COURTS IS OF THAT SORT, SO THAT ALL OF IT MIGHT BE
COMMITTED FOR FINAL DETERMINATION TO NON-ARTICLE III TRIBUNALS, BE THEY
DENOMINATED LEGISLATIVE COURTS OR ADMINISTRATIVE AGENCIES. 

BUT BECAUSE CONGRESS MAY EMPLOY SUCH TRIBUNALS ASSUREDLY DOES NOT
MEAN THAT IT MUST.  THIS IS THE CRUCIAL NON SEQUITUR OF THE BAKELITE
AND WILLIAMS OPINIONS.  EACH ASSUMED THAT BECAUSE CONGRESS MIGHT HAVE
ASSIGNED SPECIFIED JURISDICTION TO AN ADMINISTRATIVE AGENCY, IT MUST BE
DEEMED TO HAVE DONE SO EVEN THOUGH IT ASSIGNED THAT JURISDICTION TO A
TRIBUNAL HAVING EVERY APPEARANCE OF A COURT AND COMPOSED OF JUDGES
ENJOYING STATUTORY ASSURANCES OF LIFE TENURE AND UNDIMINISHED
COMPENSATION.  IN SO DOING, EACH APPEARS TO HAVE MISUNDERSTOOD THE
THRUST OF THE CELEBRATED OBSERVATION BY MR. JUSTICE CURTIS, THAT: 

"  ...  THERE ARE MATTERS, INVOLVING PUBLIC RIGHTS, WHICH MAY BE
PRESENTED IN SUCH FORM THAT THE JUDICIAL POWER IS CAPABLE OF ACTING ON
THEM, AND WHICH ARE SUSCEPTIBLE OF JUDICIAL DETERMINATION, BUT WHICH
CONGRESS MAY OR MAY NOT BRING WITHIN THE COGNIZANCE OF THE COURTS OF
THE UNITED STATES, AS IT MAY DEEM PROPER."  MURRAY'S LESSEE V. HOBOKEN
LAND & IMPROVEMENT CO., 18 HOW.  272, 284. 

THIS PASSAGE, CITED IN BOTH THE BAKELITE AND WILLIAMS OPINIONS,
(FN22) PLAINLY DID NOT MEAN THAT THE MATTERS REFERRED TO COULD NOT BE
ENTRUSTED TO ARTICLE III COURTS.  QUITE THE CONTRARY, THE EXPLICIT
PREDICATE TO JUSTICE CURTIS' ARGUMENT WAS THAT SUCH COURTS COULD
EXERCISE JUDICIAL POWER OVER SUCH CASES.  FOR THE VERY STATUTE WHOSE
AUTHORIZATION OF SUMMARY DISTRESS PROCEEDINGS WAS SUSTAINED IN THE
MURRAY CASE, ALSO AUTHORIZED THE DISTRAINEE TO BRING SUIT TO ARREST THE
LEVY AGAINST THE UNITED STATES IN A FEDERAL DISTRICT COURT.  AND AS TO
THIS, THE AUTHOR OF THE OPINION STATED, JUST BEFORE HIS MORE TRENCHANT
REMARK QUOTED ABOVE: 

"THE UNITED STATES CONSENTS THAT THIS FACT OF INDEBTEDNESS MAY BE
DRAWN IN QUESTION BY A SUIT AGAINST THEM.  THOUGH THEY MIGHT HAVE
WITHHELD THEIR CONSENT, WE THINK THAT, BY GRANTING IT, NOTHING WHICH
MAY NOT BE A SUBJECT OF JUDICIAL COGNIZANCE IS BROUGHT BEFORE THE
COURT."  (FN23) 

THUS MURRAY'S LESSEE, FAR FROM FURNISHING AUTHORITY AGAINST THE
PROPOSITION THAT THE COURT OF CLAIMS IS A CONSTITUTIONAL COURT,
ACTUALLY SUPPORTS IT. 

TO DENY THAT CONGRESS MAY CREATE TRIBUNALS UNDER ARTICLE III FOR THE
SOLE PURPOSE OF ADJUDICATING MATTERS THAT IT MIGHT HAVE RESERVED FOR
LEGISLATIVE OR EXECUTIVE DECISION WOULD BE TO DEPRIVE IT OF THE VERY
CHOICE THAT MR. JUSTICE CURTIS INSISTED IT ENJOYS.  OF COURSE
POSSESSION OF THE CHOICE, ASSUMING IT IS COEXTENSIVE WITH THE RANGE OF
MATTERS CONFIDED TO THE COURTS, (FN24) SUBJECTS THOSE COURTS TO THE
CONTINUOUS POSSIBILITY THAT THEIR ENTIRE JURISDICTION MAY BE
WITHDRAWN.  SEE WILLIAMS V. UNITED STATES, 289 U.S. 553, 580-581.  BUT
THE THREAT THUS FACING THEIR INDEPENDENCE IS NOT IN KIND OR EFFECT
DIFFERENT FROM THAT SUSTAINED BY ALL INFERIOR FEDERAL COURTS.  THE
GREAT CONSTITUTIONAL COMPROMISE THAT RESULTED IN AGREEMENT UPON ART.
III, SEC. 1, AUTHORIZED BUT DID NOT OBLIGATE CONGRESS TO CREATE
INFERIOR FEDERAL COURTS.  I FARRAND, THE RECORDS OF THE FEDERAL
CONVENTION (1911), 118, 124-125; THE FEDERALIST, NO. 81 (WRIGHT ED.
1961), AT 509 (HAMILTON).  ONCE CREATED, THEY PASSED ALMOST A CENTURY
WITHOUT EXERCISING ANY VERY SIGNIFICANT JURISDICTION.  WARREN, NEW
LIGHT ON THE HISTORY OF THE FEDERAL JUDICIARY ACT OF 1789, 37 HARV. L.
REV. 49, 65-70 (1923); FRANKFURTER, DISTRIBUTION OF JUDICIAL POWER
BETWEEN UNITED STATES AND STATE COURTS, 13 CORNELL L.Q. 499 (1928). 
THROUGHOUT THIS PERIOD AND BEYOND IT UP TO TODAY, THEY REMAINED
CONSTANTLY SUBJECT TO JURISDICTIONAL CURTAILMENT.  TURNER V. BANK OF
NORTH AMERICA, 4 DALL.  8, 10 NOTE (CHASE, J.); CARY V. CURTIS, 3 HOW. 
236, 245; SHELDON V. SILL, 8 HOW.  441, 449; KLINE V. BURKE
CONSTRUCTION CO., 260 U.S. 226, 233-234.  EVEN IF IT SHOULD BE CONCEDED
THAT THE COURT OF CLAIMS OR THE COURT OF CUSTOMS AND PATENT APPEALS IS
ANY MORE LIKELY TO BE SUPPLANTED, WE DO NOT THINK THE FACTOR OF
CONSTITUTIONAL SIGNIFICANCE.  (FN25) 

WHAT HAS BEEN SAID SHOULD SUFFICE TO DEMONSTRATE THAT WHETHER A
TRIBUNAL IS TO BE RECOGNIZED AS ONE CREATED UNDER ARTICLE III DEPENDS
BASICALLY UPON WHETHER ITS ESTABLISHING LEGISLATION COMPLIES WITH THE
LIMITATIONS OF THAT ARTICLE; WHETHER, IN OTHER WORDS, ITS BUSINESS IS
THE FEDERAL BUSINESS THERE SPECIFIED AND ITS JUDGES AND JUDGMENTS ARE
ALLOWED THE INDEPENDENCE THERE EXPRESSLY OR IMPLIEDLY MADE REQUISITE. 
TO ASCERTAIN WHETHER THE COURTS NOW UNDER INQUIRY CAN MEET THOSE TESTS,
WE MUST TURN TO EXAMINE THEIR HISTORY, THE DEVELOPMENT OF THEIR
FUNCTIONS, AND THEIR PRESENT CHARACTERISTICS. 

VI. 

A. COURT OF CLAIMS.  - THE COURT OF CLAIMS WAS CREATED BY THE ACT OF
FEBRUARY 24, 1855, C. 122, 10 STAT. 612, PRIMARILY TO RELIEVE THE
PRESSURE ON CONGRESS CAUSED BY THE VOLUME OF PRIVATE BILLS.  AS AN
INNOVATION THE COURT WAS AT FIRST REGARDED AS AN EXPERIMENT, AND SOME
OF ITS CREATORS WERE RELUCTANT TO GIVE IT ALL THE ATTRIBUTES OF A COURT
BY MAKING ITS JUDGMENTS FINAL; INSTEAD IT WAS AUTHORIZED TO HEAR CLAIMS
AND REPORT ITS FINDINGS OF FACT AND OPINIONS TO CONGRESS, TOGETHER WITH
DRAFTS OF BILLS DESIGNED TO CARRY ITS RECOMMENDATIONS INTO EFFECT. 
SEC. 7, 10 STAT. 613; SEE CONG. GLOBE, 33D CONG., 2D SESS. 70-72
(1854)(REMARKS OF SENATORS BRODHEAD AND HUNTER).  FROM THE OUTSET,
HOWEVER, A MAJORITY OF THE COURT'S PROPONENTS INSISTED THAT ITS JUDGES
BE GIVEN LIFE TENURE AS A MEANS OF ASSURING INDEPENDENCE OF JUDGMENT,
AND THEIR PROPOSAL WON ACCEPTANCE IN THE ACT.  SEC. 1, 10 STAT. 612;
SEE CONG.  GLOBE, 33D CONG., 2D SESS. 71, 108-109 (SENATOR HUNTER); 72
(SENATOR CLAYTON); 106 (SENATOR BRODHEAD); 110 (SENATOR PRATT); 114,
902 (THE VOTES).  INDEED THERE ARE SUBSTANTIAL INDICATIONS IN THE
DEBATES THAT CONGRESS THOUGHT IT WAS ESTABLISHING A COURT UNDER ARTICLE
III.  CONG. GLOBE, 33D CONG., 2D SESS. 108-109 (SENATOR HUNTER); 110
111 (SENATOR PRATT); 111 (SENATOR CLAYTON); 113 (SENATORS STUART AND
DOUGLAS). 

BY THE END OF 1861, HOWEVER, IT WAS APPARENT THAT THE LIMITED POWERS
CONFERRED ON THE COURT WERE INSUFFICIENT TO RELIEVE CONGRESS FROM THE
LABORIOUS NECESSITY OF EXAMINING THE MERITS OF PRIVATE BILLS.  IN HIS
STATE OF THE UNION MESSAGE THAT YEAR, PRESIDENT LINCOLN RECOMMENDED
THAT THE LEGISLATIVE DESIGN TO PROVIDE FOR THE INDEPENDENT ADJUDICATION
OF CLAIMS AGAINST THE UNITED STATES BE BROUGHT TO FRUITION BY MAKING
THE JUDGMENTS OF THE COURT OF CLAIMS FINAL.  THE PERTINENT TEXT OF HIS
ADDRESS IS AS FOLLOWS, CONG. GLOBE, 37TH CONG., 2D SESS., APPENDIX, P.
2: 

"IT IS AS MUCH THE DUTY OF GOVERNMENT TO RENDER PROMPT JUSTICE
AGAINST ITSELF, IN FAVOR OF CITIZENS, AS IT IS TO ADMINISTER THE SAME
BETWEEN PRIVATE INDIVIDUALS.  THE INVESTIGATION AND ADJUDICATION OF
CLAIMS, IN THEIR NATURE BELONG TO THE JUDICIAL DEPARTMENT  ...  .  IT
WAS INTENDED BY THE ORGANIZATION OF THE COURT OF CLAIMS MAINLY TO
REMOVE THIS BRANCH OF BUSINESS FROM THE HALLS OF CONGRESS; BUT WHILE
THE COURT HAS PROVED TO BE AN EFFECTIVE AND VALUABLE MEANS OF
INVESTIGATION, IT IN GREAT DEGREE FAILS TO EFFECT THE OBJECT OF ITS
CREATION, FOR WANT OF POWER TO MAKE ITS JUDGMENTS FINAL." 

BY THE ACT OF MARCH 3, 1863, C. 92, SEC. 5, 12 STAT. 765, 766,
CONGRESS ADOPTED THE PRESIDENT'S RECOMMENDATION AND MADE THE COURT'S
JUDGMENTS FINAL, WITH APPEAL TO THE SUPREME COURT PROVIDED IN CERTAIN
CASES.  THE SIGNIFICANCE OF THIS NEARLY CONTEMPORANEOUS ENACTMENT FOR
THE LIGHT IT SHEDS ON THE AIMS OF THE 1855 CONGRESS IS APPARENT. 

THERE WAS ONE FURTHER IMPEDIMENT.  SECTION 14 OF THE 1863 ACT, 12
STAT. 768, PROVIDED THAT "NO MONEY SHALL BE PAID OUT OF THE TREASURY
FOR ANY CLAIM PASSED UPON BY THE COURT OF CLAIMS TILL AFTER AN
APPROPRIATION THEREFOR SHALL BE ESTIMATED FOR BY THE SECRETARY OF THE
TREASURY."  IN GORDON V. UNITED STATES, 2 WALL.  561, THIS COURT
REFUSED TO REVIEW A JUDGMENT OF THE COURT OF CLAIMS BECAUSE IT
CONSTRUED THAT SECTION AS GIVING THE SECRETARY A REVISORY AUTHORITY
OVER THE COURT INCONSISTENT WITH ITS EXERCISE OF JUDICIAL POWER. 
CONGRESS PROMPTLY REPEALED THE OFFENSIVE SECTION, ACT OF MARCH 17,
1866, C. 19, SEC. 1, 14 STAT. 9, ONCE AGAIN EXHIBITING ITS PURPOSE TO
LIBERATE THE COURT OF CLAIMS FROM ITSELF AND THE EXECUTIVE. 
THEREAFTER, THE SUPREME COURT PROMULGATED RULES GOVERNING APPEALS FROM
THE COURT, 3 WALL.  VII-VIII, AND TOOK JURISDICTION UNDER THEM FOR THE
FIRST TIME IN DE GROOT V. UNITED STATES, 5 WALL.  419. 

THE EARLY APPEALS ENTERTAINED BY THE COURT FURNISH STRIKING EVIDENCE
OF ITS UNDERSTANDING THAT THE COURT OF CLAIMS HAD BEEN VESTED WITH
JUDICIAL POWER.  IN DE GROOT THE COURT HAD BEEN GIVEN JURISDICTION BY
SPECIAL BILL ONLY AFTER THE PASSAGE OF TWO PRIVATE BILLS HAD FAILED TO
PRODUCE AGREEMENT BY ADMINISTRATIVE OFFICIALS UPON ADEQUATE
RECOMPENSE.  THIS COURT WAS THUS PRESENTED WITH A VIVID ILLUSTRATION OF
THE WAYS IN WHICH THE SAME MATTER MIGHT BE SUBMITTED FOR RESOLUTION TO
A LEGISLATIVE COMMITTEE, TO AN EXECUTIVE OFFICER, OR TO A COURT,
MURRAY'S LESSEE, SUPRA, AND NEVERTHELESS ACCEPTED APPELLATE
JURISDICTION OVER WHAT WAS, NECESSARILY, AN EXERCISE OF THE JUDICIAL
POWER WHICH ALONE IT MAY REVIEW.  MARBURY V. MADISON, 1 CRANCH 137, 174
175. 

AFTER THE REPEAL OF SEC. 14, THE COURT WAS QUICK TO PROTECT THE COURT
OF CLAIMS' JUDGMENTS FROM EXECUTIVE REVISION.  IN UNITED STATES V.
O'GRADY, 22 WALL.  641, A JUDGMENT HAD BEEN DIMINISHED BY THE SECRETARY
OF THE TREASURY IN AN AMOUNT EQUAL TO A TAX ASSERTEDLY DUE, ALTHOUGH
THE UNITED STATES HAD NOT PLEADED A SET-OFF AS IT WAS ENTITLED BY THE
1863 ACT TO DO.  (FN26)  THE COURT OF CLAIMS AND THIS COURT ON APPEAL
HELD THE DEDUCTION UNWARRANTED IN LAW, WITH THE FOLLOWING PERTINENT
CLOSING OBSERVATION: 

"SHOULD IT BE SUGGESTED THAT THE JUDGMENT IN QUESTION WAS RENDERED IN
THE COURT OF CLAIMS, THE ANSWER TO THE SUGGESTION IS THAT THE JUDGMENT
OF THE COURT OF CLAIMS, FROM WHICH NO APPEAL IS TAKEN, IS JUST AS
CONCLUSIVE UNDER EXISTING LAWS AS THE JUDGMENT OF THE SUPREME COURT,
UNTIL IT IS SET ASIDE ON A MOTION FOR A NEW TRIAL."  (FN27) 

LIKE VIEWS ABOUND IN THE EARLY REPORTS.  IN UNITED STATES V. UNION
PACIFIC R. CO., 98 U.S. 569, 603, FOR EXAMPLE, REFERRING TO ARTICLE
III, THE COURT SAID: 

"CONGRESS HAS, UNDER THIS AUTHORITY, CREATED THE DISTRICT COURTS, THE
CIRCUIT COURTS, AND THE COURT OF CLAIMS, AND VESTED EACH OF THEM WITH A
DEFINED PORTION OF THE JUDICIAL POWER FOUND IN THE CONSTITUTION." 

SUCH REMAINED THE VIEW OF THE COURT AS LATE AS MILES V. GRAHAM, 268
U.S. 501, DECIDED IN 1925.  THERE IT WAS HELD, ON THE AUTHORITY OF
EVANS V. GORE, 253 U.S. 245, THAT THE SALARY OF A COURT OF CLAIMS JUDGE
APPOINTED EVEN AFTER ENACTMENT OF THE TAXING STATUTE IN QUESTION WAS
NOT SUBJECT TO SUCH DIMINUTION.  ALTHOUGH THE CASE WAS AFTERWARDS
OVERRULED ON THIS POINT, O'MALLEY V. WOODROUGH, 307 U.S. 277, 283, WHAT
IS OF CONTINUING INTEREST IS THE COURT'S RELIANCE IN MILES UPON EVANS
V. GORE, WHERE MR. JUSTICE VAN DEVANTER FOR THE COURT DEVOTED SIX FULL
PAGES TO RECITATION OF THE IMPORTANCE OF THE GUARANTEES OF TENURE AND
SALARY CONTAINED IN ARTICLE III.  (FN28)  HOW IT WAS POSSIBLE TO SAY IN
BAKELITE, 279 U.S., AT 455, THAT THE COURT IN MILES, DECIDED ONLY FIVE
YEARS AFTER EVANS AND WITH COPIOUS QUOTATION FROM IT, WAS UNAWARE OF
THE CRUCIAL QUESTION WHETHER ARTICLE III EXTENDED ITS PROTECTION TO A
JUDGE OF THE COURT OF CLAIMS, IS VERY DIFFICULT TO UNDERSTAND.    IN
ACTUALITY, THE COURT'S PRE-BAKELITE VIEW OF THE COURT OF CLAIMS IS
SUPPORTED BY THE EVIDENCE OF INCREASING CONFIDENCE PLACED IN THAT
TRIBUNAL BY CONGRESS.  THE TUCKER ACT, SEC. 1, 24 STAT. 505 (1887), NOW
28 U.S.C. SEC. 1491, GREATLY EXPANDED THE JURISDICTION OF THE COURT BY
AUTHORIZING IT TO ADJUDICATE: 

"ALL CLAIMS FOUNDED UPON THE CONSTITUTION OF THE UNITED STATES OR ANY
LAW OF CONGRESS, EXCEPT FOR PENSIONS, OR UPON ANY REGULATION OF AN
EXECUTIVE DEPARTMENT, OR UPON ANY CONTRACT, EXPRESS OR IMPLIED, WITH
THE GOVERNMENT OF THE UNITED STATES, OR FOR DAMAGES, LIQUIDATED OR
UNLIQUIDATED, IN CASES NOT SOUNDING IN TORT, IN RESPECT OF WHICH CLAIMS
THE PARTY WOULD BE ENTITLED TO REDRESS AGAINST THE UNITED STATES EITHER
IN A COURT OF LAW, EQUITY, OR ADMIRALTY IF THE UNITED STATES WERE
SUABLE  ...  ." 

ALL OF THE CASES WITHIN THIS GRANT OF JURISDICTION ARISE EITHER
IMMEDIATELY OR POTENTIALLY UNDER FEDERAL LAW WITHIN THE MEANING OF ART.
III, SEC. 2.  OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738, 818
819, 823-825; SEE CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363;
FEDERAL CROP INSURANCE CORP. V. MERRILL, 332 U.S. 380; MISHKIN, THE
FEDERAL "QUESTION" IN THE DISTRICT COURTS, 53 COL. L. REV. 157, 184
196.  THE CASES HEARD BY THE COURT HAVE BEEN AS INTRICATE AND FAR
RANGING AS ANY COMING WITHIN THE FEDERAL-QUESTION JURISDICTION, 28
U.S.C. SEC. 1331, OF THE DISTRICT COURTS.  E.G., CAUSBY V. UNITED
STATES, 104 CT. CL.  342, 60 F. SUPP. 751, REMANDED FOR FURTHER
FINDINGS, 328 U.S. 256 (EMINENT DOMAIN); LOVETT V. UNITED STATES, 104
CT. CL. 557, 60 F. SUPP. 142, AFF'D, 328 U.S. 303 (BILL OF ATTAINDER);
SHAPIRO V. UNITED STATES, 107 CT. CL. 650, 69 F. SUPP. 205 (MILITARY
DUE PROCESS).  IN NONE OF THESE CASES, NOR IN OTHERS, COULD IT WELL BE
SUGGESTED THAT THE COURT OF CLAIMS HAD ADJUDGED THE ISSUES, NO MATTER
HOW IMPORTANT TO THE GOVERNMENT, OTHERWISE THAN DISPASSIONATELY. 

INDEED THERE IS REASON TO BELIEVE THAT THE COURT OF CLAIMS HAS BEEN
CONSTITUTED AS IT IS PRECISELY TO THE END THAT THERE MAY BE A TRIBUNAL
SPECIALLY QUALIFIED TO HOLD THE GOVERNMENT TO STRICT LEGAL ACCOUNTING. 
FROM THE BEGINNING IT HAS BEEN GIVEN JURISDICTION ONLY TO AWARD
DAMAGES, NOT SPECIFIC RELIEF.  UNITED STATES V. ALIRE, 6 WALL.  573;
UNITED STATES V. JONES, 131 U.S. 1; SEE SCHWARTZ AND JACOBY, GOVERNMENT
LITIGATION (TENTATIVE ED. 1960), 123-126.  NO QUESTION CAN BE RAISED OF
CONGRESS' FREEDOM, CONSISTENTLY WITH ARTICLE III, TO IMPOSE SUCH A
LIMITATION UPON THE REMEDIAL POWERS OF A FEDERAL COURT.  LAUF V. E.G.
SHINNER & CO., 303 U.S. 323, 330 (NORRIS-LAGUARDIA ACT).  BUT FAR FROM
SERVING AS A RESTRICTION, THIS LIMITATION HAS ALLOWED THE COURT OF
CLAIMS A GREATER FREEDOM THAN IS ENJOYED BY OTHER FEDERAL COURTS TO
INQUIRE INTO THE LEGALITY OF GOVERNMENTAL ACTION.  SEE LARSON V.
DOMESTIC & FOREIGN COMMERCE CORP., 337 U.S. 682, 703-704; MALONE V.
BOWDOIN, 369 U.S. 643; BRENNER, JUDICIAL REVIEW BY MONEY JUDGMENT IN
THE COURT OF CLAIMS, 21 FED. B.J. 179 (1961). 

"IF THERE ARE SUCH THINGS AS POLITICAL AXIOMS," SAID ALEXANDER
HAMILTON, "THE PROPRIETY OF THE JUDICIAL POWER OF A GOVERNMENT BEING
COEXTENSIVE WITH ITS LEGISLATIVE, MAY BE RANKED AMONG THE NUMBER."  THE
FEDERALIST, NO. 80 (WRIGHT ED. 1961), AT 500.  HIS SENTIMENTS WERE NOT
IGNORED BY THE FRAMERS OF ARTICLE III.  THE RANDOLPH PLAN, WHICH FORMED
THE BASIS OF THAT ARTICLE, CALLED FOR ESTABLISHMENT OF A NATIONAL
JUDICIARY COEXTENSIVE IN AUTHORITY WITH THE EXECUTIVE AND LEGISLATIVE
BRANCHES.  IV FARRAND, THE RECORDS OF THE FEDERAL CONVENTION (REV. ED.
1937), 47-48.  FOR, AS HAMILTON OBSERVED, A CHIEF DEFECT OF THE
CONFEDERATION HAD BEEN "  ...  THE WANT OF A JUDICIARY POWER.  LAWS ARE
A DEAD LETTER WITHOUT COURTS TO EXPOUND AND DEFINE THEIR TRUE MEANING
AND OPERATION."  THE FEDERALIST, NO. 22 (WRIGHT ED. 1961), AT 197.  BUT
BECAUSE OF THE BARRIER OF SOVEREIGN IMMUNITY, THE LAWS CONTROLLING
GOVERNMENTAL RIGHTS AND OBLIGATIONS COULD NOT FOR YEARS OBTAIN A FULLY
DEFINITIVE EXPOSITION.  THE CREATION OF THE COURT OF CLAIMS CAN BE
VIEWED AS A FULFILLMENT OF THE DESIGN OF ARTICLE III. 

B. THE COURT OF CUSTOMS AND PATENT APPEALS.  - THE COURT OF CUSTOMS
APPEALS, AS IT WAS FIRST KNOWN, WAS ESTABLISHED BY SEC. 29 OF THE
CUSTOMS ADMINISTRATIVE ACT OF 1890, C. 407, 26 STAT. 131, AS ADDED BY
SEC. 28 OF THE PAYNE-ALDRICH TARIFF ACT OF AUGUST 5, 1909, C. 6, 36
STAT. 11, 105, TO REVIEW BY APPEAL FINAL DECISIONS OF THE BOARD OF
GENERAL APPRAISERS (NOW CUSTOMS COURT) RESPECTING THE CLASSIFICATION
AND RATE OF DUTY APPLICABLE TO IMPORTED MERCHANDISE.  THE ACT WAS
SILENT ABOUT THE TENURE OF THE JUDGES, AS HAD BEEN THE JUDICIARY ACT OF
1789, C. 20, SECS. 3, 4, 1 STAT. 73-75.  THE SALARY, FIRST SET AT
$10,000, WAS AFTERWARDS LOWERED TO THE $7,000 THEN BEING PAID TO
CIRCUIT JUDGES, ACT OF FEBRUARY 25, 1910, C. 62, SEC. 1, 36 STAT. 202,
214, BUT BEFORE THE FIRST NOMINATIONS HAD BEEN RECEIVED OR CONFIRMED,
SEE 45 CONG. REC. 2959, 4003 (1910); AND, ALTHOUGH IT HAS SINCE BEEN
INCREASED, IT HAS NEVER BEEN DIMINISHED.  (FN29)  AFTER THE BAKELITE
CASE HAD BEEN DECIDED, CONGRESS EXPRESSLY CONFERRED TENURE DURING GOOD
BEHAVIOR UPON THE COURT'S JUDGES, IN THE TARIFF ACT OF 1930, SEC. 646,
46 STAT. 590, 762.  REPRESENTATIVE CHINDBLOM, IN SUPPORTING THE
MEASURE, STATED THAT "WHEN THIS COURT WAS ESTABLISHED IT WAS BELIEVED
TO BE A CONSTITUTIONAL COURT SO THAT IT WAS NOT NECESSARY TO FIX THE
TERM."  71 CONG. REC. 2043 (1929). 

THE DEBATES IN THE SENATE AT THE TIME OF THE COURT'S CREATION BEAR
OUT THIS OBSERVATION.  SEE 44 CONG. REC. 4185-4225 (1909).  FOR UNDER
THE CUSTOMS ADMINISTRATIVE ACT OF 1890, C. 407, SEC. 15, 26 STAT. 131,
138, REVIEW OF DECISIONS OF THE BOARD OF GENERAL APPRAISERS HAD BEEN
VESTED IN THE CIRCUIT COURTS, UNDOUBTED ARTICLE III COURTS; IT WAS THIS
JURISDICTION THAT WAS PROPOSED TO BE TRANSFERRED TO THE NEW COURT. 
(FN30)  THE DEBATES ACCORDINGLY CONCERNED THEMSELVES WITH WHETHER THERE
WAS A NEED FOR A SPECIALIZED COURT IN THE FEDERAL JUDICIAL SYSTEM TO
DEAL WITH CUSTOMS MATTERS. 

AS WAS SAID SOME 35 YEARS AGO, "AN IMPORTANT PHASE OF THE HISTORY OF
THE FEDERAL JUDICIARY DEALS WITH THE MOVEMENT FOR THE ESTABLISHMENT OF
TRIBUNALS WHOSE BUSINESS WAS TO BE LIMITED TO LITIGATION ARISING FROM A
RESTRICTED FIELD OF LEGISLATIVE CONTROL."  FRANKFURTER AND LANDIS, THE
BUSINESS OF THE SUPREME COURT (1927), 147.  IN CERTAIN AREAS OF FEDERAL
JUDICIAL BUSINESS THERE HAS BEEN A FELT NEED TO OBTAIN, FIRST, THE
SPECIAL COMPETENCE IN COMPLEX, TECHNICAL AND IMPORTANT MATTERS THAT
COMES FROM NARROWLY FOCUSED INQUIRY; SECOND, THE SPEEDY RESOLUTION OF
CONTROVERSIES AVAILABLE ON A DOCKET UNENCUMBERED BY OTHER MATTERS; AND,
THIRD, THE CERTAINTY AND DEFINITION THAT COME FROM NATIONWIDE
UNIFORMITY OF DECISION.  SEE GENERALLY ID., AT 146-186.  NEEDS SUCH AS
THESE PROVOKED FORMATION OF THE COMMERCE COURT AND THE EMERGENCY COURT
OF APPEALS.  THEY ALSO PROMPTED ESTABLISHMENT OF THE COURT OF CUSTOMS
AND PATENT APPEALS AND ITS INVESTITURE WITH JURISDICTION OVER CUSTOMS,
TARIFF, AND PATENT AND TRADEMARK LITIGATION.  28 U.S.C. SECS. 1541
1543. 

THE PARALLELISM WITH THE COMMERCE COURT IS ESPECIALLY STRIKING.  THAT
COURT WAS CREATED TO EXERCISE THE JURISDICTION PREVIOUSLY HELD BY THE
CIRCUIT COURTS TO REVIEW ORDERS OF THE INTERSTATE COMMERCE COMMISSION. 
MANN-ELKINS ACT OF JUNE 18, 1910, C. 309, 36 STAT. 539.  IT WAS NEEDED,
SO ITS SPONSORS BELIEVED, TO AFFORD UNIFORM, EXPERT, AND EXPEDITIOUS
JUDICIAL REVIEW.  SEE PRESIDENT TAFT'S MESSAGE TO CONGRESS, 45 CONG.
REC. 379 (1910), IN THE COURSE OF WHICH HE STATED: 

"REASONS PRECISELY ANALOGOUS TO THOSE WHICH INDUCED THE CONGRESS TO
CREATE THE COURT OF CUSTOMS APPEALS BY THE PROVISIONS IN THE TARIFF ACT
OF AUGUST 5, 1909, MAY BE URGED IN SUPPORT OF THE CREATION OF THE
COMMERCE COURT." 

WHEN DISFAVOR WITH THE COURT CAUSED ITS ABOLITION THREE YEARS LATER,
ACT OF OCTOBER 22, 1913, C. 32, 38 STAT. 208, 219, IT WAS DECIDED IN
CONGRESS AFTER EXTENSIVE DEBATE THAT THE JUDGES THEN SERVING ON IT WERE
PROTECTED IN TENURE BY ARTICLE III, AND THEY WERE THEREAFTER ASSIGNED
TO SIT ON OTHER CONSTITUTIONAL COURTS.  SEE, E.G., 48 CONG. REC. 7994
(1912)(REMARKS OF SENATOR SUTHERLAND); AND SEE DONEGAN V. DYSON, 269
U.S. 49. 

THE EMERGENCY COURT OF APPEALS WAS SIMILARLY CREATED, BY THE ACT OF
JANUARY 30, 1942, C. 26, 56 STAT. 23, TO EXERCISE EXCLUSIVE EQUITY
JURISDICTION TO DETERMINE THE VALIDITY OF REGULATIONS, PRICE SCHEDULES,
AND ORDERS ISSUED BY THE WARTIME OFFICE OF PRICE ADMINISTRATION. 
(FN31)  ITS ARTICLE III STATUS WAS RECOGNIZED IN LOCKERTY V. PHILLIPS,
319 U.S. 182, 187-188. 

OF COURSE THE JUDGES OF THOSE COURTS WERE APPOINTED AS JUDGES OF
INFERIOR FEDERAL COURTS GENERALLY, OR DRAWN FROM AMONG THOSE PREVIOUSLY
APPOINTED AS SUCH.  SEE P. 538 AND NOTE 11, SUPRA. BUT BY 1942 AT
LEAST, WHEN THE LATTER COURT WAS CREATED, CONGRESS WAS WELL AWARE OF
THE DOUBT CREATED BY THE BAKELITE AND WILLIAMS DECISIONS WHETHER
ARTICLE III JUDGES COULD SIT ON NON-ARTICLE III TRIBUNALS.  ITS ACTION
IN AUTHORIZING JUDGES OF THE DISTRICT COURTS AND COURTS OF APPEALS TO
SIT ON THE EMERGENCY COURT THUS REFLECTS ITS UNDERSTANDING THAT THE
COURT WAS BEING CREATED UNDER ARTICLE III. 

SUCH AN UNDERSTANDING PARALLELS THAT OF PREVIOUS CONGRESSES SINCE THE
ADOPTION OF THE CONSTITUTION.  CONGRESS HAS NEVER BEEN COMPELLED TO
VEST THE ENTIRE JURISDICTION PROVIDED FOR IN ARTICLE III UPON INFERIOR
COURTS OF ITS CREATION; UNTIL 1875 IT CONFERRED VERY LITTLE OF IT
INDEED.  SEE PP. 551-552, SUPRA.  THE COURT OF CUSTOMS AND PATENT
APPEALS THEREFORE FITS HARMONIOUSLY INTO THE FEDERAL JUDICIAL SYSTEM
AUTHORIZED BY ARTICLE III. 

               VII. 

ARTICLE III, SEC. 2 PROVIDES IN PART: 

"THE JUDICIAL POWER SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY,
ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES, AND
TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY; ...  - TO
CONTROVERSIES TO WHICH THE UNITED STATES SHALL BE A PARTY  ...  ." 

THE CASES HEARD BY THE COURT OF CLAIMS AND THE COURT OF CUSTOMS AND
PATENT APPEALS ALL ARISE UNDER FEDERAL LAW, AS WE HAVE SEEN; THEY ARE
ALSO CASES IN WHICH THE UNITED STATES IS A PARTY.  BUT IN WILLIAMS V.
UNITED STATES, 289 U.S. 553, 572-578, FAR FROM MAKING OF THAT
CIRCUMSTANCE A FURTHER PROOF THAT THE COURT OF CLAIMS EXERCISES THE
JUDICIAL POWER CONTEMPLATED BY ARTICLE III, THIS COURT HELD THAT IT DID
NOT BECAUSE THAT ARTICLE, SO IT WAS SAID, DOES NOT MAKE JUSTICIABLE
CONTROVERSIES TO WHICH THE UNITED STATES IS A PARTY DEFENDANT. 

THE COURT'S OPINION DWELT IN PART UPON THE OMISSION OF THE WORD "ALL"
BEFORE "CONTROVERSIES" IN THE CLAUSE REFERRED TO.  TO DERIVE
CONTROLLING SIGNIFICANCE FROM THIS SEMANTIC CIRCUMSTANCE SEEMS HARDLY
TO BE FAITHFUL TO JOHN MARSHALL'S ADMONITION THAT "IT IS A CONSTITUTION
WE ARE EXPOUNDING."  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 407.  BUT IT
WOULD BE NEEDLESSLY LITERAL TO SUPPOSE THAT THE COURT RESTED ITS
HOLDING ON THIS POINT.  RATHER IT DEEMED CONTROLLING THE RULE, "WELL
SETTLED AND UNDERSTOOD" AT THE TIME OF THE CONSTITUTIONAL CONVENTION,
THAT "THE SOVEREIGN POWER IS IMMUNE FROM SUIT."  289 U.S., AT 573. 
ACCORDINGLY IT BECOMES NECESSARY TO RECONSIDER WHETHER THAT PRINCIPLE
HAS THE EFFECT CLAIMED OF RENDERING SUITS AGAINST THE UNITED STATES
NONJUSTICIABLE IN A COURT CREATED UNDER ARTICLE III. 

AT LEAST ONE TOUCHSTONE OF JUSTICIABILITY TO WHICH THIS COURT HAS
FREQUENTLY HAD REFERENCE IS WHETHER THE ACTION SOUGHT TO BE MAINTAINED
IS OF A SORT "RECOGNIZED AT THE TIME OF THE CONSTITUTION TO BE
TRADITIONALLY WITHIN THE POWER OF COURTS IN THE ENGLISH AND AMERICAN
JUDICIAL SYSTEMS."  UNITED STEELWORKERS V. UNITED STATES, 361 U.S. 39,
44, 60 (FRANKFURTER, J., CONCURRING).  THERE CAN BE LITTLE DOUBT THAT
THAT TEST IS MET HERE.  SUITS AGAINST THE ENGLISH SOVEREIGN BY PETITION
OF LIBERATE, MONSTRANS DE DROIT, AND OTHER FORMS OF ACTION DESIGNED TO
GAIN REDRESS AGAINST UNLAWFUL ACTION OF THE CROWN HAD BEEN DEVELOPED
OVER SEVERAL CENTURIES AND WERE WELL-ESTABLISHED BEFORE THE
REVOLUTION.  SEE 9 HOLDSWORTH, HISTORY OF ENGLISH LAW, 7-45 (1926). 
SIMILAR PROVISIONS FOR JUDICIAL REMEDIES AGAINST THEMSELVES WERE MADE
BY THE AMERICAN STATES IMMEDIATELY AFTER THE REVOLUTION.  E.G., 9 LAWS
OF VA. 536, 540 (1778)(HENING 1821); SEE HIGGINBOTHAM'S EXECUTRIX V.
COMMONWEALTH, 25 GRATT.  627, 637-638 (VA. 1874).  THIS HISTORY WAS
KNOWN BY CONGRESS WHEN IT ESTABLISHED THE COURT OF CLAIMS, SEE CONG.
GLOBE, 33D CONG., 2D SESS. 73 (1854)(REMARKS OF SENATOR PETTIT), AND
UNDOUBTEDLY WAS FAMILIAR TO THE FRAMERS OF THE CONSTITUTION, MOST OF
THEM LAWYERS. 

HAMILTON'S VIEWS, QUOTED IN THE WILLIAMS CASE, 289 U.S., AT 576, ARE
NOT TO THE CONTRARY.  TO BE SURE, HAMILTON ARGUED THAT "THE CONTRACTS
BETWEEN A NATION AND INDIVIDUALS ARE ONLY BINDING ON THE CONSCIENCE OF
THE SOVEREIGN, AND HAVE NO PRETENSIONS TO A COMPULSIVE FORCE.  THEY
CONFER NO RIGHT OF ACTION, INDEPENDENT OF THE SOVEREIGN WILL."  THE
FEDERALIST, NO. 81 (WRIGHT ED. 1961), AT 511.  BUT THAT IS BECAUSE
THERE WAS NO SURRENDER OF SOVEREIGN IMMUNITY IN THE PLAN OF THE
CONVENTION; (FN32) SO THAT, FOR SUITS AGAINST THE UNITED STATES, IT
REMAINED "INHERENT IN THE NATURE OF SOVEREIGNTY NOT TO BE AMENABLE TO
THE SUIT OF AN INDIVIDUAL WITHOUT ITS CONSENT."  IBID.  IN THIS SENSE,
AND ONLY IN THIS SENSE, IS ARTICLE III'S EXTENSION OF JUDICIAL
COMPETENCE OVER CONTROVERSIES TO WHICH THE UNITED STATES IS A PARTY
INEFFECTIVE TO CONFER JURISDICTION OVER SUITS TO WHICH IT IS A
DEFENDANT.  FOR "BEHIND THE WORDS OF THE CONSTITUTIONAL PROVISIONS ARE
POSTULATES WHICH LIMIT AND CONTROL."  MONACO V. MISSISSIPPI, 292 U.S.
313, 322.  BUT ONCE THE CONSENT IS GIVEN, THE POSTULATE IS SATISFIED,
AND THERE REMAINS NO BARRIER TO JUSTICIABILITY.  CF. COHENS V.
VIRGINIA, 6 WHEAT.  264, 383-385.    SO THE COURT HAD GIVEN ITSELF TO
UNDERSTAND BEFORE WILLIAMS WAS DECIDED.  IN UNITED STATES V. LOUISIANA,
123 U.S. 32, 35, IT HELD MAINTAINABLE UNDER ARTICLE III A SUIT BROUGHT
IN THE COURT OF CLAIMS BY A STATE AGAINST THE UNITED STATES WITH
CONGRESS' CONSENT.  AND IN MINNESOTA V. HITCHCOCK, 185 U.S. 373, 384,
WHICH REAFFIRMED THAT RULING, THE COURT SAID: 

"THIS IS A CONTROVERSY TO WHICH THE UNITED STATES MAY BE REGARDED AS
A PARTY.  IT IS ONE, THEREFORE, TO WHICH THE JUDICIAL POWER OF THE
UNITED STATES EXTENDS.  IT IS, OF COURSE, UNDER THAT CLAUSE A MATTER OF
INDIFFERENCE WHETHER THE UNITED STATES IS A PARTY PLAINTIFF OR
DEFENDANT." 

FURTHER IN THE SAME OPINION, 185 U.S., AT 386, THE COURT
SIGNIFICANTLY REMARKED: 

"WHILE THE UNITED STATES AS A GOVERNMENT MAY NOT BE SUED WITHOUT ITS
CONSENT, YET WITH ITS CONSENT IT MAY BE SUED, AND THE JUDICIAL POWER OF
THE UNITED STATES EXTENDS TO SUCH A CONTROVERSY.  INDEED, THE WHOLE
JURISDICTION OF THE COURT OF CLAIMS RESTS UPON THIS PROPOSITION." 

TO DENY THAT PROPOSITION NOW WOULD BE TO CALL INTO QUESTION A LARGE
MEASURE OF THE JURISDICTION EXERCISED BY THE UNITED STATES DISTRICT
COURTS.  UNDER THE FEDERAL TORT CLAIMS ACT, SEC. 410(A), 60 STAT. 842,
843-844 (1946), AS AMENDED, 28 U.S.C. SEC. 1346(B), THOSE COURTS HAVE
BEEN EMPOWERED TO DETERMINE THE TORT LIABILITY OF THE UNITED STATES IN
SUITS BROUGHT BY INDIVIDUAL PLAINTIFFS.  IN SO DOING, THEY EXERCISE
FUNCTIONS AKIN TO THOSE OF THE COURT OF CLAIMS, AS IS EVIDENCED BY THE
STATUTORY AUTHORIZATION OF APPEALS TO THAT COURT FROM THEIR JUDGMENTS,
WITH THE CONSENT OF THE APPELLEE.  SEC. 412(A)(2), 60 STAT. 844-845
(1946), AS AMENDED, 28 U.S.C.  SEC. 1504. 

IN TRUTH THE DISTRICT COURTS HAVE LONG BEEN VESTED WITH SUBSTANTIAL
PORTIONS OF THE IDENTICAL JURISDICTION EXERCISED BY THE COURT OF
CLAIMS.  THE TUCKER ACT, SEC. 2, 24 STAT. 505 (1887), AS AMENDED, 28
U.S.C. SEC. 1346(A)(2), GIVES THEM CONCURRENT JURISDICTION OVER THE
SUITS IT AUTHORIZES, WHEN THE AMOUNT IN CONTROVERSY IS LESS THAN
$10,000.  UNDER THAT ACT A DISTRICT COURT SITS "AS A COURT OF CLAIMS,"
UNITED STATES V. SHERWOOD, 312 U.S. 584, 591, AND AFFORDS THE SAME
RIGHTS AND PRIVILEGES TO SUITORS AGAINST THE UNITED STATES.  BATES
MANUFACTURING CO. V. UNITED STATES, 303 U.S. 567, 571.  SEE GENERALLY
SCHWARTZ AND JACOBY, GOVERNMENT LITIGATION (TENTATIVE ED. 1960), 109
111. 

THERE HAVE BEEN AND ARE FURTHER STATUTORY INDICATIONS THAT CONGRESS
REGARDS THE TWO COURTS INTERCHANGEABLY.  IN 1921, MR. JUSTICE BRANDEIS
COMPILED A LIST OF 17 STATUTES PASSED DURING WORLD WAR I, PERMITTING
SUITS AGAINST THE UNITED STATES FOR THE VALUE OF PROPERTY SEIZED FOR
USE IN THE WAR EFFORT, AND AUTHORIZING THEM TO BE INSTITUTED IN EITHER
THE COURT OF CLAIMS OR ONE OF THE DISTRICT COURTS.  UNITED STATES V.
PFITSCH, 256 U.S. 547, 553 N. 1.  TODAY, 28 U.S.C. SEC. 1500 GIVES
LITIGANTS AN ELECTION TO SUE THE UNITED STATES AS PRINCIPAL IN THE
COURT OF CLAIMS OR TO PURSUE THEIR CLAIMS AGAINST ITS AGENTS IN ANY
OTHER COURT, INCLUDING THE DISTRICT COURTS.  SEE NATIONAL CORED
FORGINGS CO. V. UNITED STATES, 132 CT. CL.  11, 132 F. SUPP. 454.  IN
ADDITION, BY THE ACT OF SEPTEMBER 13, 1960, SECS. 1, 2(A), 74 STAT.
912, CONGRESS ADDED SECS. 1406(C) AND 1506 TO TITLE 28 OF THE U.S.C.
PROVIDING FOR TRANSFER BETWEEN THE COURT OF CLAIMS AND ANY DISTRICT
COURT WHEN A SUIT WITHIN ONE COURT'S EXCLUSIVE JURISDICTION IS BROUGHT
MISTAKENLY IN ANOTHER. 

THESE EVIDENCES OF CONGRESSIONAL UNDERSTANDING THAT SUITS AGAINST THE
UNITED STATES ARE JUSTICIABLE IN COURTS CREATED UNDER ARTICLE III MAY
NOT BE LIGHTLY DISREGARDED.  NEVERTHELESS IT IS PROBABLY TRUE THAT
CONGRESS DEVOTES A MORE LIVELY ATTENTION TO THE WORK PERFORMED BY THE
COURT OF CLAIMS, AND THAT IT HAS BEEN MORE PRONE TO MODIFY THE
JURISDICTION ASSIGNED TO THAT COURT.  IT REMAINS TO CONSIDER WHETHER
THAT CIRCUMSTANCE SUFFICES TO RENDER NONJUDICIAL THE DECISION OF CLAIMS
AGAINST THE UNITED STATES IN THE COURT OF CLAIMS. 

FIRST.  THROUGHOUT ITS HISTORY THE COURT OF CLAIMS HAS FREQUENTLY
BEEN GIVEN JURISDICTION BY SPECIAL ACT TO AWARD RECOVERY FOR BREACH OF
WHAT WOULD HAVE BEEN, ON THE PART OF AN INDIVIDUAL, AT MOST A MORAL
OBLIGATION.  E.G., 45 STAT. 602 (1928), AS AMENDED, 25 U.S.C.  SECS.
651-657; INDIANS OF CALIFORNIA V. UNITED STATES, 98 CT. CL. 583, 599. 
CONGRESS HAS WAIVED THE BENEFIT OF RES JUDICATA, CHEROKEE NATION V.
UNITED STATES, 270 U.S. 476, 486, AND OF DEFENSES BASED ON THE PASSAGE
OF TIME, UNITED STATES V. ALCEA BAND OF TILLAMOOKS, 329 U.S. 40, 45-46;
UNITED STATES V. CENTRAL EUREKA MINING CO., 357 U.S. 155. 

IN DOING SO, AS THIS COURT HAS UNIFORMLY HELD, CONGRESS HAS ENLISTED
THE AID OF JUDICIAL POWER WHOSE EXERCISE IS AMENABLE TO APPELLATE
REVIEW HERE.  UNITED STATES V. ALCEA BAND OF TILLAMOOKS, SUPRA; SEE
COLGATE V. UNITED STATES, 280 U.S. 43, 47-48.  INDEED THE COURT HAS
HELD THAT CONGRESS MAY FOR REASONS ADEQUATE TO ITSELF CONFER BOUNTIES
UPON PERSONS AND, BY CONSENTING TO SUIT, CONVERT THEIR MORAL CLAIM INTO
A LEGAL ONE ENFORCEABLE BY LITIGATION IN AN UNDOUBTED CONSTITUTIONAL
COURT.  UNITED STATES V. REALTY CO., 163 U.S. 427. 

THE ISSUE WAS SETTLED BEYOND PERADVENTURE IN POPE V. UNITED STATES,
323 U.S. 1.  THERE THE COURT HELD THAT FOR CONGRESS TO DIRECT THE COURT
OF CLAIMS TO ENTERTAIN A CLAIM THERETOFORE BARRED FOR ANY LEGAL REASON
FROM RECOVERY - AS, FOR INSTANCE, BY THE STATUTE OF LIMITATIONS, OR
BECAUSE THE CONTRACT HAD BEEN DRAFTED TO EXCLUDE SUCH CLAIMS - WAS TO
INVOKE THE USE OF JUDICIAL POWER, NOTWITHSTANDING THAT THE TASK MIGHT
INVOLVE NO MORE THAN COMPUTATION OF THE SUM DUE.  CONSENT JUDGMENTS,
THE COURT RECALLED, ARE NONETHELESS JUDICIAL JUDGMENTS.  SEE 323 U.S.,
AT 12, AND CASES CITED.  AFTER THIS DECISION IT CANNOT BE DOUBTED THAT
WHEN CONGRESS TRANSMUTES A MORAL OBLIGATION INTO A LEGAL ONE BY
SPECIALLY CONSENTING TO SUIT, IT AUTHORIZES THE TRIBUNAL THAT HEARS THE
CASE TO PERFORM A JUDICIAL FUNCTION. 

SECOND.  CONGRESS HAS ON OCCASION WITHDRAWN JURISDICTION FROM THE
COURT OF CLAIMS TO PROCEED WITH THE DISPOSITION OF CASES PENDING
THEREIN, AND HAS BEEN UPHELD IN SO DOING BY THIS COURT.  E.G., DISTRICT
OF COLUMBIA V. ESLIN, 183 U.S. 62.  BUT THAT IS NOT INCOMPATIBLE WITH
THE POSSESSION OF ARTICLE III JUDICIAL POWER BY THE TRIBUNAL AFFECTED. 
CONGRESS HAS CONSISTENTLY WITH THAT ARTICLE WITHDRAWN THE JURISDICTION
OF THIS COURT TO PROCEED WITH A CASE THEN SUB JUDICE, EX PARTE
MCCARDLE, 7 WALL.  506; ITS POWER CAN BE NO LESS WHEN DEALING WITH AN
INFERIOR FEDERAL COURT, IN RE HALL, 167 U.S. 38, 42.  FOR AS HAMILTON
ASSURED THOSE OF HIS CONTEMPORARIES WHO WERE CONCERNED ABOUT THE REACH
OF POWER THAT MIGHT BE VESTED IN A FEDERAL JUDICIARY, "IT OUGHT TO BE
RECOLLECTED THAT THE NATIONAL LEGISLATURE WILL HAVE AMPLE AUTHORITY TO
MAKE SUCH EXCEPTIONS, AND TO PRESCRIBE SUCH REGULATIONS AS WILL BE
CALCULATED TO OBVIATE OR REMOVE ANY  ...  INCONVENIENCES."  THE
FEDERALIST, NO. 80 (WRIGHT ED. 1961), AT 505. 

THE AUTHORITY IS NOT, OF COURSE, UNLIMITED.  IN 1870, CONGRESS
PURPORTED TO WITHDRAW JURISDICTION FROM THE COURT OF CLAIMS AND FROM
THIS COURT ON APPEAL OVER CASES SEEKING INDEMNIFICATION FOR PROPERTY
CAPTURED DURING THE CIVIL WAR, SO FAR AS ELIGIBILITY THEREFOR MIGHT BE
PREDICATED UPON AN AMNESTY AWARDED BY THE PRESIDENT, AS BOTH COURTS HAD
PREVIOUSLY HELD THAT IT MIGHT.  DESPITE EX PARTE MCCARDLE, SUPRA, THE
COURT REFUSED TO APPLY THE STATUTE TO A CASE IN WHICH THE CLAIMANT HAD
ALREADY BEEN ADJUDGED ENTITLED TO RECOVER BY THE COURT OF CLAIMS,
CALLING IT AN UNCONSITUTIONAL ATTEMPT TO INVADE THE JUDICIAL PROVINCE
BY PRESCRIBING A RULE OF DECISION IN A PENDING CASE.  UNITED STATES V.
KLEIN, 13 WALL.  128.  SURELY NO SUCH CONCERN WOULD HAVE BEEN
MANIFESTED IF IT HAD NOT BEEN THOUGHT THAT THE COURT OF CLAIMS WAS
INVESTED WITH JUDICIAL POWER.  (FN33)

                            VIII. 

A MORE SUBSTANTIAL QUESTION RELATING TO THE JUSTICIABILITY OF MONEY
CLAIMS AGAINST THE UNITED STATES ARISES FROM THE IMPOTENCE OF A COURT
TO ENFORCE ITS JUDGMENTS.  IT WAS CHIEF JUSTICE TANEY'S OPINION, IN
GORDON V. UNITED STATES, AFTERWARDS PUBLISHED AT 117 U.S. 697, 702,
THAT THE DEPENDENCE OF THE COURT OF CLAIMS UPON AN APPROPRIATION BY
CONGRESS TO CARRY ITS AWARDS INTO EFFECT NEGATIVED THE POSSESSION OF
JUDICIAL POWER: 

"THE AWARD OF EXECUTION IS A PART, AND AN ESSENTIAL PART OF EVERY
JUDGMENT PASSED BY A COURT EXERCISING JUDICIAL POWER." 

BUT TANEY'S OPINION WAS NOT THE OPINION OF THE COURT.  IT WAS A
MEMORANDUM OF HIS VIEWS PREPARED BEFORE HIS DEATH AND CIRCULATED AMONG,
BUT NOT ADOPTED BY, HIS BRETHREN.  THE OPINION OF THE COURT, CORRECTLY
REPORTED FOR THE FIRST TIME IN UNITED STATES V. JONES, 119 U.S. 477,
478, MAKES CLEAR THAT ITS REFUSAL TO ENTERTAIN THE GORDON APPEAL RESTED
SOLELY ON THE REVISORY AUTHORITY VESTED IN THE SECRETARY OF THE
TREASURY BEFORE THE REPEAL OF SEC. 14.  SEE ALSO UNITED STATES V.
ALIRE, 6 WALL.  573, 576; UNITED STATES V. O'GRADY, 22 WALL.  641, 647;
LANGFORD V. UNITED STATES, 101 U.S. 341, 344-345 - IN EACH OF WHICH THE
LIMITATION OF THE GORDON DECISION TO THE DIFFICULTIES CAUSED BY SEC. 14
CLEARLY APPEARS. 

NEVERTHELESS THE PROBLEM REMAINS AND SHOULD BE CONSIDERED.  ITS SCOPE
HAS, HOWEVER, BEEN REDUCED BY THE ACT OF JULY 27, 1956, SEC. 1302, 70
STAT. 678, 694, 31 U.S.C. SEC. 724A, A GENERAL APPROPRIATION ACT WHICH
ELIMINATES THE NEED FOR SUBSEQUENT SEPARATE APPROPRIATIONS TO PAY
JUDGMENTS BELOW $100,000.  A JUDGMENT CREDITOR OF THIS ORDER SIMPLY
FILES IN THE GENERAL ACCOUNTING OFFICE A CERTIFICATE OF THE JUDGMENT
SIGNED BY THE CLERK AND THE CHIEF JUDGE OF THE COURT OF CLAIMS, AND IS
PAID.  28 U.S.C. SEC. 2517(A).  FOR JUDGMENTS OF THIS DIMENSION,
THEREFORE, THERE NEED BE NO CONCERN ABOUT THE ISSUANCE OF EXECUTION. 

FOR CLAIMS IN EXCESS OF $100,000, 28 U.S.C. SEC. 2518 DIRECTS THE
SECRETARY OF THE TREASURY TO CERTIFY THEM TO CONGRESS ONCE REVIEW IN
THIS COURT HAS BEEN FOREGONE OR SOUGHT AND FOUND UNAVAILING.   THIS,
THEN, IS THE DOMAIN OF OUR PROBLEM, FOR ART. I, SEC. 9, CL. 7, VESTS
EXCLUSIVE RESPONSIBILITY FOR APPROPRIATIONS IN CONGRESS, (FN34) AND THE
COURT EARLY HELD THAT NO EXECUTION MAY ISSUE DIRECTED TO THE SECRETARY
OF THE TREASURY UNTIL SUCH AN APPROPRIATION HAS BEEN MADE.  REESIDE V.
WALKER, 11 HOW.  272, 291. 

THE PROBLEM WAS RECOGNIZED IN THE CONGRESS THAT CREATED THE COURT OF
CLAIMS, WHERE IT WAS POINTED OUT THAT IF ABILITY TO ENFORCE JUDGMENTS
WERE MADE A CRITERION OF JUDICIAL POWER, NO TRIBUNAL CREATED UNDER
ARTICLE III WOULD BE ABLE TO ASSUME JURISDICTION OF MONEY CLAIMS
AGAINST THE UNITED STATES.  CONG. GLOBE, 33D CONG., 2D SESS. 113
(1854)(REMARKS OF SENATOR STUART).  THE SUBSEQUENT VESTING OF SUCH
JURISDICTION IN THE DISTRICT COURTS, PP. 565-566, SUPRA, OF COURSE
BEARS WITNESS THAT AT LEAST THE CONGRESS HAS NOT THOUGHT SUCH A
CRITERION IMPERATIVE. 

EVER SINCE CONGRESS FIRST ACCORDED FINALITY TO JUDGMENTS OF THE COURT
OF CLAIMS, IT HAS SOUGHT TO AVOID INTERFERING WITH THEIR COLLECTION. 
THE PAYMENT OF FINAL JUDGMENTS OUT OF GENERAL APPROPRIATIONS.  IN 1877,
CONGRESS SHIFTED FOR A TIME TO APPROPRIATING LUMP SUMS FOR JUDGMENTS
CERTIFIED TO IT BY THE SECRETARY OF THE TREASURY, NOT IN ORDER TO
QUESTION THE JUDGMENTS BUT TO AVOID THE POSSIBILITY THAT A LARGE
JUDGMENT MIGHT EXHAUST THE PRIOR APPROPRIATION.  ACT OF MARCH 3, 1877,
C. 105, 19 STAT. 344, 347; SEE 6 CONG. REC. 585-588 (1877).  THE STUDY
CONCLUDED IN 1933 FOUND ONLY 15 INSTANCES IN 70 YEARS WHEN CONGRESS HAD
REFUSED TO PAY A JUDGMENT.  NOTE, 46 HARV. L. REV. 677, 685-686 N. 63. 
THIS HISTORICAL RECORD, SURELY MORE FAVORABLE TO PREVAILING PARTIES
THAN THAT OBTAINING IN PRIVATE LITIGATION, MAY WELL MAKE US DOUBT
WHETHER THE CAPACITY TO ENFORCE A JUDGMENT IS ALWAYS INDISPENSABLE FOR
THE EXERCISE OF JUDICIAL POWER. 

THE COURT DID NOT THINK SO IN LA ABRA SILVER MINING CO. V. UNITED
STATES, 175 U.S. 423, 461-462, WHERE THE ISSUE WAS THE JUSTICIABILITY
UNDER ARTICLE III OF A DECLARATORY JUDGMENT ACTION BROUGHT BY THE
UNITED STATES IN THE COURT OF CLAIMS TO DETERMINE ITS LIABILITY FOR
PAYMENT OF AN AWARD PROCURED BY THE DEFENDANT FROM AN INTERNATIONAL
ARBITRAL COMMISSION ASSERTEDLY THROUGH FRAUD.  SEE ALSO NASHVILLE, C. &
ST. L.R. CO. V. WALLACE, 288 U.S. 249, 263.  NOR HAS IT THOUGHT SO WHEN
FACED WITH THE EXACTLY ANALOGOUS PROBLEM PRESENTED BY SUITS FOR MONEY
BETWEEN STATES IN THE ORIGINAL JURISDICTION.  THAT JURISDICTION HAS
BEEN UPHELD, FOR EXAMPLE, IN SOUTH DAKOTA V. NORTH CAROLINA, 192 U.S.
286, 318-321, NOTWITHSTANDING THE COURT'S RECOGNITION OF JUDICIAL
IMPOTENCE TO COMPEL A LEVY OF TAXES OR OTHERWISE BY PROCESS TO ENFORCE
ITS AWARD.  SEE ESPECIALLY THE OPINIONS OF CHIEF JUSTICE FULLER AND
CHIEF JUSTICE WHITE AT THE BEGINNING AND INCONCLUSIVE END OF THE
EXTENDED LITIGATION BETWEEN VIRGINIA AND WEST VIRGINIA, 206 U.S. 290,
319 (1907) AND 246 U.S. 565 (1918), IN WHICH THE COURT ASSERTED
JURISDICTION TO AWARD DAMAGES FOR BREACH OF CONTRACT DESPITE PERSISTENT
AND NEVER-SURMOUNTED CHALLENGES TO ITS POWER TO ENFORCE A DECREE. 
(FN35)  IF THIS COURT MAY RELY ON THE GOOD FAITH OF STATE GOVERNMENTS
OR OTHER PUBLIC BODIES TO RESPOND TO ITS JUDGMENTS, THERE SEEMS TO BE
NO SOUND REASON WHY THE COURT OF CLAIMS MAY NOT RELY ON THE GOOD FAITH
OF THE UNITED STATES.  WE CONCLUDE THAT THE PRESENCE OF THE UNITED
STATES AS A PARTY DEFENDANT TO SUITS MAINTAINED IN THE COURT OF CLAIMS
AND THE COURT OF CUSTOMS AND PATENT APPEALS DOES NOT DEBAR THOSE COURTS
FROM EXERCISING THE JUDICIAL POWER PROVIDED FOR IN ARTICLE III. 
                               IX. 

ALL OF THE BUSINESS THAT COMES BEFORE THE TWO COURTS IS SUSCEPTIBLE
OF DISPOSITION IN A JUDICIAL MANNER.  WHAT REMAINS TO BE DETERMINED IS
THE EXTENT TO WHICH IT IS IN FACT DISPOSED OF IN THAT MANNER. 

A PRELIMINARY CONSIDERATION THAT NEED NOT DETAIN US LONG IS THE
ABSENCE OF PROVISION FOR JURY TRIAL OF COUNTERCLAIMS BY THE GOVERNMENT
IN ACTIONS BEFORE THE COURT OF CLAIMS.  DESPITE DICTUM TO THE CONTRARY
IN UNITED STATES V. SHERWOOD, 312 U.S. 584, 587, THE LEGITIMACY OF THAT
NONJURY MODE OF TRIAL DOES NOT DEPEND UPON THE SUPPOSED "LEGISLATIVE"
CHARACTER OF THE COURT.  IT DERIVES INSTEAD, AS INDEED WAS ALSO NOTED
IN SHERWOOD, IBID., FROM THE FACT THAT SUITS AGAINST THE GOVERNMENT,
REQUIRING AS THEY DO A LEGISLATIVE WAIVER OF IMMUNITY, ARE NOT "SUITS
AT COMMON LAW" WITHIN THE MEANING OF THE SEVENTH AMENDMENT.  MCELRATH
V. UNITED STATES, 102 U.S. 426, 439-440.  THE CONGRESS WAS NOT,
THEREFORE, REQUIRED TO PROVIDE JURY TRIALS FOR PLAINTIFFS SUING IN THE
COURT OF CLAIMS; THE REASONABLENESS OF ITS LATER DECISION TO OBVIATE
THE NEED FOR MULTIPLE LITIGATION PRECLUDES A FINDING THAT ITS
IMPOSITION OF AMENABILITY TO NONJURY SET-OFFS WAS AN UNCONSTITUTIONAL
CONDITION.  CF. MINNEAPOLIS & ST. L.R. CO. V. BOMBOLIS, 241 U.S. 211;
SEE 74 HARV. L. REV. 414, 415 (1960).  (FN36) 

THE PRINCIPAL QUESTION RAISED BY THE PARTIES UNDER THIS HEAD OF THE
ARGUMENT IS WHETHER THE MATTERS REFERRED BY CONGRESS TO THE COURT OF
CLAIMS AND THE COURT OF CUSTOMS AND PATENT APPEALS ARE SUBMITTED TO
THEM IN A FORM CONSONANT WITH THE LIMITATION OF JUDICIAL POWER TO
"CASES OR CONTROVERSIES" IMPOSED BY ARTICLE III.  WE MAY CONSIDER FIRST
THE BULK OF JURISDICTION EXERCISED BY THE TWO COURTS, RESERVING FOR
SEPARATE TREATMENT IN THE NEXT SECTION OF THIS OPINION TWO AREAS WHICH
MAY REASONABLY BE REGARDED AS PRESENTING SPECIAL DIFFICULTY. 

"WHETHER A PROCEEDING WHICH RESULTS IN A GRANT IS A JUDICIAL ONE,"
SAID MR. JUSTICE BRANDEIS FOR A UNANIMOUS COURT, "DOES NOT DEPEND UPON
THE NATURE OF THE THING GRANTED, BUT UPON THE NATURE OF THE PROCEEDING
WHICH CONGRESS HAS PROVIDED FOR SECURING THE GRANT.  THE UNITED STATES
MAY CREATE RIGHTS IN INDIVIDUALS AGAINST ITSELF AND PROVIDE ONLY AN
ADMINISTRATIVE REMEDY.  IT MAY PROVIDE A LEGAL REMEDY, BUT MAKE RESORT
TO THE COURTS AVAILABLE ONLY AFTER ALL ADMINISTRATIVE REMEDIES HAVE
BEEN EXHAUSTED.  IT MAY GIVE TO THE INDIVIDUAL THE OPTION OF EITHER AN
ADMINISTRATIVE OR A LEGAL REMEDY.  OR IT MAY PROVIDE ONLY A LEGAL
REMEDY.  (SEE PP. 549-552, SUPRA.)  WHENEVER THE LAW PROVIDES A REMEDY
ENFORCEABLE IN THE COURTS ACCORDING TO THE REGULAR COURSE OF LEGAL
PROCEDURE, AND THAT REMEDY IS PURSUED, THERE ARISES A CASE WITHIN THE
MEANING OF THE CONSTITUTION, WHETHER THE SUBJECT OF THE LITIGATION BE
PROPERTY OR STATUS."  TUTUN V. UNITED STATES, 270 U.S. 568, 576-577. 
(CITATIONS OMITTED.) 

IT IS UNQUESTIONED THAT THE TUCKER ACT CASES ASSIGNED TO THE COURT OF
CLAIMS, 28 U.S.C.  SEC. 1491, ADVANCE TO JUDGMENT "ACCORDING TO THE
REGULAR COURSE OF LEGAL PROCEDURE."  UNDER THIS GRANT OF JURISDICTION
THE COURT HEARS TAX CASES, CASES CALLING INTO QUESTION THE STATUTORY
AUTHORITY FOR A REGULATION, CONTROVERSIES OVER THE EXISTENCE OR EXTENT
OF A CONTRACTUAL OBLIGATION, AND THE LIKE.  SEE GENERALLY SCHWARTZ AND
JACOBY, GOVERNMENT LITIGATION (TENTATIVE ED. 1960), 131-223.  SUCH
CASES, WHICH ACCOUNT FOR AS MUCH AS 95% OF THE COURT'S WORK, (FN37)
FORM THE STAPLE JUDICIAL FARE OF THE REGULAR FEDERAL COURTS.  THERE CAN
BE NO DOUBT THAT, TO THE "EXPERT FEEL OF LAWYERS," UNITED STEELWORKERS
V. UNITED STATES, 361 U.S. 39, 44, 60 (FRANKFURTER, J., CONCURRING),
THEY CONSTITUTE CASES OR CONTROVERSIES. 

THE BALANCE OF THE COURT'S JURISDICTION TO RENDER FINAL JUDGMENTS MAY
LIKEWISE BE ASSIMILATED TO THE TRADITIONAL BUSINESS OF COURTS
GENERALLY.  THUS THE COURT HAS BEEN EMPOWERED TO RENDER ACCOUNTINGS,
(FN38) TO DECIDE IF DEBTS (FN39) OR PENALTIES (FN40) ARE DUE THE UNITED
STATES, AND TO DETERMINE THE LIABILITY OF THE UNITED STATES FOR PATENT
OR COPYRIGHT INFRINGEMENT (FN41) AND FOR OTHER SPECIALLY DESIGNATED
TORTS.  (FN42)  IN ADDITION, IT HAS BEEN GIVEN JURISDICTION TO REVIEW,
ON ISSUES OF LAW INCLUDING THE EXISTENCE OF SUBSTANTIAL EVIDENCE,
DECISIONS OF THE INDIAN CLAIMS COMMISSION.  (FN43)  EACH OF THESE
CASES, LIKE THOSE UNDER THE TUCKER ACT, IS CONTESTED, IS CONCRETE, AND
ADMITS OF A DECREE OF A SUFFICIENTLY CONCLUSIVE CHARACTER.  SEE AETNA
LIFE INSURANCE CO. V. HAWORTH, 300 U.S. 227, 240-241. 

THE SAME MAY UNDOUBTEDLY BE SAID OF THE CUSTOMS JURISDICTION VESTED
IN THE COURT OF CUSTOMS AND PATENT APPEALS BY 28 U.S.C. SEC. 1541. 
(FN44)  CONTESTS OVER CLASSIFICATION AND VALUATION OF IMPORTED
MERCHANDISE HAVE LONG BEEN MAINTAINABLE IN INFERIOR FEDERAL COURTS. 
UNDER R.S.  SEC. 3011 (1878), SUITS AFTER PROTEST AGAINST THE COLLECTOR
WERE AUTHORIZED IN THE CIRCUIT COURTS.  E.G., GREELY'S ADMINISTRATOR V.
BURGESS, 18 HOW.  413; IASIGI V. THE COLLECTOR, 1 WALL.  375.  WHEN THE
CUSTOMS ADMINISTRATIVE ACT OF 1890 WAS PASSED, C. 407, 26 STAT. 131,
REPEALING THAT SECTION AND CREATING A BOARD OF GENERAL APPRAISERS TO
REVIEW DETERMINATIONS OF THE COLLECTOR, A FURTHER RIGHT OF REVIEW WAS
PROVIDED IN THE CIRCUIT COURTS.  SEE DE LIMA V. BIDWELL, 182 U.S. 1,
175.  THIS COURT TOOK UNQUESTIONED APPELLATE JURISDICTION FROM THOSE
COURTS ON NUMEROUS OCCASSIONS.  E.G., UNITED STATES V. BALLIN, 144 U.S.
1; HOENINGHAUS V. UNITED STATES, 172 U.S. 622.  IT HAS CONTINUED TO
ACCEPT REVIEW BY CERTIORARI FROM THE COURT OF CUSTOMS APPEALS SINCE THE
JURISDICTION OF THE CIRCUIT COURTS WAS TRANSFERRED TO IT IN 1909. 
E.G., FIVE PER CENT. DISCOUNT CASES, 243 U.S. 97; BARR V. UNITED
STATES, 324 U.S. 83.  THAT THE CUSTOMS LITIGATION AUTHORIZED BY SEC.
1541 CONFORMS TO CONVENTIONAL NOTIONS OF CASE OR CONTROVERSY SEEMS NO
LONGER OPEN TO DOUBT. 

DOUBT HAS BEEN EXPRESSED, HOWEVER, ABOUT THE JURISDICTION CONFERRED
BY 28 U.S.C. SEC. 1542 AND 60 STAT. 435 (1946), AS AMENDED, 15 U.S.C.
SEC. 1071, TO REVIEW APPLICATION AND INTERFERENCE PROCEEDINGS IN THE
PATENT OFFICE RELATIVE TO PATENTS AND TRADEMARKS.  PARTIES TO THOSE
PROCEEDINGS ARE GIVEN AN ELECTION TO BRING A CIVIL ACTION TO CONTEST
THE PATENT OFFICE DECISION IN A DISTRICT COURT UNDER 35 U.S.C. SECS.
145, 146, OR TO SEEK REVIEW IN THE COURT OF CUSTOMS AND PATENT APPEALS
UNDER 35 U.S.C. SEC. 141.  IF THE LATTER CHOICE IS MADE, THE COURT
CONFINES ITS REVIEW TO THE EVIDENCE ADDUCED BEFORE THE PATENT OFFICE
AND TO THE QUESTIONS OF LAW PRESERVED BY THE PARTIES; ITS DECISION
"SHALL BE ENTERED OF RECORD IN THE PATENT OFFICE AND GOVERN THE FURTHER
PROCEEDINGS IN THE CASE."  35 U.S.C. SEC. 144.  THE CODIFICATION
"OMITTED AS SUPERFLUOUS" THE LAST SENTENCE IN THE EXISTING STATUTE:
"BUT NO OPINION OR DECISION OF THE COURT IN ANY SUCH CASE SHALL
PRECLUDE ANY PERSON INTERESTED FROM THE RIGHT TO CONTEST THE VALIDITY
OF SUCH PATENT IN ANY COURT WHEREIN THE SAME MAY BE CALLED IN
QUESTION."  ACT OF JULY 8, 1870, C. 230, SEC. 50, 16 STAT. 198, 205;
SEE REVISER'S NOTE TO 35 U.S.C. SEC. 144. 

THE LATTER PROVISION WAS EVIDENTLY INSTRUMENTAL IN PROMPTING A
DECISION OF THIS COURT, AT A TIME WHEN REVIEW OF PATENT OFFICE
DETERMINATIONS WAS VESTED IN THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA, THAT THE RULING CALLED FOR BY THE STATUTE WAS NOT OF A
JUDICIAL CHARACTER.  POSTUM CEREAL CO. V. CALIFORNIA FIG NUT CO., 272
U.S. 693, 699.  THAT IS THE MOST THAT THE POSTUM HOLDING CAN BE TAKEN
TO STAND FOR, AS UNITED STATES V. DUELL, 172 _.S. 576, 588-589, HAD
UPHELD THE JUDICIAL NATURE OF THE REVIEW IN ALL OTHER RESPECTS.  (FN45)
AND THE CONTINUING VITALITY OF THE DECISION EVEN TO THIS EXTENT HAS
BEEN SERIOUSLY WEAKENED IF NOT EXTINGUISHED BY THE SUBSEQUENT HOLDING
IN HOOVER CO. V. COE, 325 U.S. 79, 88, SUSTAINING THE JUSTICIABILITY OF
THE ALTERNATIVE REMEDY BY CIVIL ACTION EVEN THOUGH THE COURT DEEMED
"THE EFFECT OF ADJUDICATION IN EQUITY THE SAME AS THAT OF DECISION ON
APPEAL."  SEE KURLAND AND WOLFSON, SUPREME COURT REVIEW OF THE COURT OF
CUSTOMS AND PATENT APPEALS: PATENT OFFICE AND TARIFF COMMISSION CASES,
18 G.W.L. REV. 192, 194-198 (1950). 

AT THE TIME WHEN POSTUM WAS DECIDED, THE PROCEEDING IN EQUITY AGAINST
THE PATENT OFFICE WAS CUMULATIVE RATHER THAN ALTERNATIVE WITH THE
REVIEW BY APPEAL, AND IT SEEMS LIKELY THAT IT WAS THIS FEATURE OF THE
STATUTE WHICH CAUSED THE COURT TO CHARACTERIZE THE JUDGMENT OF THE
COURT OF APPEALS AS "A MERE ADMINISTRATIVE DECISION."  272 U.S., AT
698.  THEREAFTER CONGRESS MADE THE REMEDIES ALTERNATIVE, ACT OF MARCH
2, 1927, C. 273, SEC. 11, 44 STAT. 1335, 1336, AND IT WAS THIS AMENDED
JURISDICTION THAT IT LATER TRANSFERRED TO THE COURT OF CUSTOMS AND
PATENT APPEALS, RENAMING THE COURT IN THE PROCESS.  ACT OF MARCH 2,
1929, C. 488, 45 STAT. 1475. 

IT MAY STILL BE TRUE THAT CONGRESS HAS GIVEN TO THE EQUITY PROCEEDING
A GREATER PRECLUSIVE EFFECT THAN THAT ACCORDED TO DECISIONS OF THE
COURT OF CUSTOMS AND PATENT APPEALS.  (FN46)  EVEN SO, THAT
CIRCUMSTANCE ALONE IS INSUFFICIENT TO MAKE THOSE DECISIONS
NONJUDICIAL.  TUTUN V. UNITED STATES, 270 U.S. 568, DECIDED BY THE SAME
COURT AS POSTUM AND NOT THERE QUESTIONED, IS CONTROLLING AUTHORITY. 
FOR THE COURT THERE HELD THAT A NATURALIZATION PROCEEDING IN A FEDERAL
DISTRICT COURT WAS A "CASE" WITHIN THE MEANING OF ARTICLE III, EVEN
THOUGH THE GOVERNMENT WAS EMPOWERED BY STATUTE (FN47) TO BRING A LATER
BILL IN EQUITY FOR CANCELLATION OF THE CERTIFICATE. 

MR. JUSTICE BRANDEIS, THE AUTHOR OF THE TUTUN OPINION, HAD ALSO
PREPARED THE COURT'S OPINION IN UNITED STATES V. NESS, 245 U.S. 319,
WHICH UPHELD THE GOVERNMENT'S RIGHT TO SEEK DENATURALIZATION EVEN UPON
GROUNDS KNOWN TO AND ASSERTED UNSUCCESSFULLY BY IT IN THE
NATURALIZATION COURT.  (FN48) PROCEEDINGS IN THAT COURT, THE OPINION
EXPLAINED, WERE RELATIVELY SUMMARY, WITH NO RIGHT OF APPEAL, WHEREAS
THE DENATURALIZATION SUIT WAS PLENARY ENOUGH TO PERMIT FULL
PRESENTATION OF ALL OBJECTIONS AND WAS ACCOMPANIED WITH APPEAL AS OF
RIGHT.  245 U.S., AT 326.  THESE DIFFERENCES MADE IT REASONABLE FOR
CONGRESS TO ALLOW THE GOVERNMENT ANOTHER CHANCE TO CONTEST THE
APPLICANT'S ELIGIBILITY. 

THE DECISION IN TUTUN, COMING AFTER NESS, DRAWS THE PATENT AND
TRADEMARK JURISDICTION NOW EXERCISED BY THE COURT OF CUSTOMS AND PATENT
APPEALS FULLY WITHIN THE CATEGORY OF CASES OR CONTROVERSIES.  SO MUCH
WAS RECOGNIZED IN TUTUN ITSELF, 270 U.S., AT 578, WHERE MR. JUSTICE
BRANDEIS OBSERVED: 

"IF A CERTIFICATE IS PROCURED WHEN THE PRESCRIBED QUALIFICATIONS HAVE
NO EXISTENCE IN FACT, IT MAY BE CANCELLED BY SUIT.  'IT IS IN THIS
RESPECT,' AS STATED IN JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 238,
'CLOSELY ANALOGOUS TO A PUBLIC GRANT OF LAND (REV. STAT., SEC. 2289,
ETC.,) OR OF THE EXCLUSIVE RIGHT TO MAKE, USE AND VEND A NEW AND USEFUL
INVENTION (REV. STAT., SEC. 4883, ETC.).'" 

LIKE NATURALIZATION PROCEEDINGS IN A DISTRICT COURT, APPEALS FROM
PATENT OFFICE DECISIONS UNDER 35 U.S.C. SEC. 144 ARE RELATIVELY SUMMARY
- SINCE THE RECORD IS LIMITED TO THE EVIDENCE ALLOWED BY THAT OFFICE -
AND ARE NOT THEMSELVES SUBJECT TO DIRECT REVIEW BY APPEAL AS OF RIGHT. 
(FN49)  IT WAS AS REASONABLE FOR CONGRESS, THEREFORE, TO BIND ONLY THE
PATENT OFFICE ON APPEALS AND TO GIVE PRIVATE PARTIES WHETHER OR NOT
PARTICIPANTS IN SUCH APPEALS A FURTHER OPPORTUNITY TO CONTEST THE
MATTER ON PLENARY RECORDS DEVELOPED IN LITIGATION ELSEWHERE.  THIS
PRACTICE BUT FURNISHES A FURTHER ILLUSTRATION OF THE SPECIALIZED
JURISDICTION OF THE COURT OF CUSTOMS AND PATENT APPEALS, AKIN TO THAT
OF THE COMMERCE COURT, IN PASSING UPON THE CONSISTENCY WITH LAW OF
EXPERT ADMINISTRATIVE JUDGMENTS WITHOUT UNDERTAKING TO CONCLUDE PRIVATE
PARTIES IN NONADMINISTRATIVE LITIGATION.  WE CONCLUDE THAT THE POSTUM
DECISION MUST BE TAKEN TO BE LIMITED TO THE STATUTORY SCHEME IN
EXISTENCE BEFORE THE TRANSFER OF PATENT AND TRADEMARK LITIGATION TO
THAT COURT. 

                                        X. 

WE TURN FINALLY TO THE MORE DIFFICULT QUESTIONS RAISED BY THE
JURISDICTION VESTED IN THE COURT OF CUSTOMS AND PATENT APPEALS BY 28
U.S.C. SEC. 1543 TO REVIEW TARIFF COMMISSION FINDINGS OF UNFAIR
PRACTICES IN IMPORT TRADE, AND THE CONGRESSIONAL REFERENCE JURISDICTION
GIVEN THE COURT OF CLAIMS BY 28 U.S.C. SECS. 1492 AND 2509.  THE
JUDICIAL QUALITY OF THE FORMER WAS CALLED INTO QUESTION THOUGH NOT
RESOLVED IN EX PARTE BAKELITE CORP., 279 U.S. 438, 460-461, (FN50)
WHILE THAT OF THE LATTER MUST BE TAKEN TO HAVE BEEN ADVERSELY DECIDED,
SO FAR AS SUSCEPTIBILITY TO SUPREME COURT REVIEW IS CONCERNED, BY IN RE
SANBORN, 148 U.S. 222.  (FN51) 

AT THE OUTSET WE ARE MET WITH A SUGGESTION BY THE SOLICITOR GENERAL
THAT EVEN IF THE DECISIONS CALLED FOR BY THESE HEADS OF JURISDICTION
ARE NONJUDICIAL, THEIR COMPATIBILITY WITH THE STATUS OF AN ARTICLE III
COURT HAS BEEN SETTLED BY O'DONOGHUE V. UNITED STATES, 289 U.S. 516,
545-548.  IT IS TRUE THAT O'DONOGHUE UPHELD THE AUTHORITY OF CONGRESS
TO INVEST THE FEDERAL COURTS FOR THE DISTRICT OF COLUMBIA WITH CERTAIN
ADMINISTRATIVE RESPONSIBILITIES - SUCH AS THAT OF REVISING THE RATES OF
PUBLIC UTILITIES (FN52) - BUT ONLY SUCH AS WERE RELATED TO THE
GOVERNMENT OF THE DISTRICT.  SEE PITTS V. PEAK, 60 APP. D.C.  195, 197,
50 F.2D 485, 487, CITED AND RELIED UPON IN O'DONOGHUE, 289 U.S., AT 547
548.  (FN53)  TO EXTEND THAT HOLDING TO THE WHOLLY NATIONWIDE
JURISDICTION OF COURTS WHOSE SEAT IS IN THE DISTRICT OF COLUMBIA WOULD
BE TO IGNORE THE SPECIAL IMPORTANCE ATTACHED IN THE O'DONOGHUE OPINION
TO THE NEED THERE FOR AN INDEPENDENT NATIONAL JUDICIARY. 

THE RESTRAINTS OF FEDERALISM ARE, OF COURSE, REMOVED FROM THE POWERS
EXERCISABLE BY CONGRESS WITHIN THE DISTRICT.  FOR, AS THE COURT EARLY
STATED, IN KENDALL V. UNITED STATES, 12 PET. 524, 619:

"THERE IS IN THIS DISTRICT, NO DIVISION OF POWERS BETWEEN THE GENERAL
AND STATE GOVERNMENTS.  CONGRESS HAS THE ENTIRE CONTROL OVER THE
DISTRICT FOR EVERY PURPOSE OF GOVERNMENT; AND IT IS REASONABLE TO
SUPPOSE, THAT IN ORGANIZING A JUDICIAL DEPARTMENT HERE, ALL JUDICIAL
POWER NECESSARY FOR THE PURPOSES OF GOVERNMENT WOULD BE VESTED IN THE
COURTS OF JUSTICE."    THUS THOSE LIMITATIONS IMPLICIT IN THE RUBRIC
"CASE OR CONTROVERSY" THAT SPRING FROM THE FRAMERS' ANXIETY NOT TO
INTRUDE UNDULY UPON THE GENERAL JURISDICTION OF STATE COURTS, SEE
MADISON'S NOTES OF THE DEBATES, IN II FARRAND, RECORDS OF THE FEDERAL
CONVENTION (1911), 45-46, NEED HAVE NO APPLICATION IN THE DISTRICT. 
THE NATIONAL COURTS HERE MAY, CONSISTENTLY WITH THOSE LIMITATIONS,
PERFORM ANY OF THE LOCAL FUNCTIONS ELSEWHERE PERFORMED BY STATE
COURTS.  (FN54)    BUT THOSE ARE NOT THE ONLY LIMITATIONS EMBODIED IN
ARTICLE III'S RESTRICTION OF JUDICIAL POWER TO CASES OR CONTROVERSIES. 
THE RESTRICTION EXPRESSES AS WELL THE FRAMERS' DESIRE TO SAFEGUARD THE
INDEPENDENCE OF THE JUDICIAL FROM THE OTHER BRANCHES BY CONFINING ITS
ACTIVITIES TO "CASES OF A JUDICIARY NATURE," SEE II FARRAND, OP CIT.,
SUPRA, AT 430, AND IN THIS RESPECT IT REMAINS FULLY APPLICABLE AT LEAST
TO COURTS INVESTED WITH JURISDICTION SOLELY OVER MATTERS OF NATIONAL
IMPORT.  OUR QUESTION IS WHETHER THE INDEPENDENCE OF EITHER THE COURT
OF CLAIMS OR THE COURT OF CUSTOMS AND PATENT APPEALS HAS BEEN SO
COMPROMISED BY ITS INVESTITURE WITH THE PARTICULAR HEADS OF
JURISDICTION DESCRIBED ABOVE AS TO DESTROY ITS ELIGIBILITY FOR
RECOGNITION AS AN ARTICLE III COURT. 

THE JURISDICTIONAL STATUTES IN ISSUE, SEC. 337 OF THE TARIFF ACT OF
1930 AND 28 U.S.C.  SECS. 1492, 2509, APPEAR TO SUBJECT THE DECISIONS
CALLED FOR FROM THOSE COURTS TO AN EXTRAJUDICIAL REVISORY AUTHORITY
INCOMPATIBLE WITH THE LIMITATIONS UPON JUDICIAL POWER THIS COURT HAS
DRAWN FROM ARTICLE III.  SEE, E.G., CHICAGO & SOUTHERN AIR LINES, INC.,
V. WATERMAN S.S. CORP., 333 U.S. 103, 113-114; HAYBURN'S CASE, 2 DALL. 
409.  WHETHER THEY ACTUALLY DO SO IS NOT, HOWEVER, ENTIRELY FREE FROM
DIFFICULTY, AND CANNOT IN OUR VIEW APPROPRIATELY BE DECIDED IN A
VACUUM, APART FROM THE SETTING OF PARTICULAR CASES IN WHICH WE MAY
GAUGE THE OPERATION OF THE STATUTES.  FOR DISPOSITION OF THE PRESENT
CASES, WE THINK IT IS SUFFICIENT SIMPLY TO NOTE THE DOUBT ATTENDING THE
VALIDITY OF THE JURISDICTION, AND TO PROCEED ON THE ASSUMPTION THAT IT
CANNOT BE ENTERTAINED BY AN ARTICLE III COURT. 

IT DOES NOT FOLLOW, HOWEVER, FROM THE INVALIDITY, ACTUAL OR
POTENTIAL, OF THESE HEADS OF JURISDICTION, THAT EITHER THE COURT OF
CLAIMS OR THE COURT OF CUSTOMS AND PATENT APPEALS MUST RELINQUISH
ENTITLEMENT TO RECOGNITION AS AN ARTICLE III COURT.  THEY ARE NOT
TRIBUNALS, AS ARE FOR EXAMPLE THE INTERSTATE COMMERCE COMMISSION OR THE
FEDERAL TRADE COMMISSION, A SUBSTANTIAL AND INTEGRAL PART OF WHOSE
BUSINESS IS NONJUDICIAL. 

THE OVERWHELMING MAJORITY OF THE COURT OF CLAIMS' BUSINESS IS
COMPOSED OF CASES AND CONTROVERSIES.   SEE PP. 573-574, SUPRA.  IN THE
PAST YEAR, IT HEARD ONLY 10 REFERENCE CASES, ANNUAL REPORT OF THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (1961), 318; AND ITS
RECENT ANNUAL AVERAGE HAS NOT EXCEEDED THAT FIGURE, PAVENSTEDT, THE
UNITED STATES COURT OF CLAIMS AS A FORUM FOR TAX CASES, 15 TAX L. REV.
1, 6 N. 23 (1959).  THE TARIFF JURISDICTION OF THE COURT OF CUSTOMS AND
PATENT APPEALS IS OF EVEN LESS SIGNIFICANT DIMENSIONS.  IN THE PAST
FISCAL YEAR, THAT COURT DISPOSED OF 41 CUSTOMS CASES AND 112 PATENT OR
TRADEMARK CASES, BUT HEARD NO APPEALS FROM THE TARIFF COMMISSION. 
ANNUAL REPORT OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS
(1961), 318.  INDEED WE ARE ADVISED THAT IN ALL THE YEARS SINCE 1922,
WHEN THE PREDECESSOR TO SEC. 337 OF THE TARIFF ACT WAS FIRST ENACTED,
THE COURT OF CUSTOMS AND PATENT APPEALS HAS ENTERTAINED ONLY SIX SUCH
CASES.  (FN55)  CERTAINLY THE STATUS OF A DISTRICT COURT OR COURT OF
APPEALS WOULD NOT BE ALTERED BY A MERE CONGRESSIONAL ATTEMPT TO INVEST
IT WITH SUCH INSIGNIFICANT NONJUDICIAL BUSINESS; IT WOULD BE EQUALLY
PERVERSE TO MAKE THE STATUS OF THESE COURTS TURN UPON SO MINUSCULE A
PORTION OF THEIR PURPORTED FUNCTIONS. 

THE CONGRESS THAT ENACTED THE ASSIGNMENT STATUTE WITH ITS
ACCOMPANYING DECLARATIONS WAS APPRISED OF THE POSSIBILITY THAT A RE
EXAMINATION OF THE BAKELITE AND WILLIAMS DECISIONS MIGHT LEAD TO
DISALLOWANCE OF SOME OF THESE COURTS' JURISDICTION.  SEE 99 CONG. REC.
8944 (1953)(REMARKS OF SENATOR GORE); 104 CONG. REC. 17549
(1958)(REMARKS OF SENATOR TALMADGE).  NEVERTHELESS IT CHOSE TO PASS THE
STATUTE.  WE THINK WITH IT THAT, IF NECESSARY, THE PARTICULAR OFFENSIVE
JURISDICTION, AND NOT THE COURTS, WOULD FALL. 

                                 CONCLUSIONS. 

SINCE THE COURT OF CLAIMS AND THE COURT OF CUSTOMS AND PATENT APPEALS
ARE COURTS CREATED UNDER ARTICLE III, THEIR JUDGES - INCLUDING RETIRED
JUDGES, BOOTH V. UNITED STATES, 291 U.S. 339, 350-351 - ARE AND HAVE
BEEN CONSTITUTIONALLY PROTECTED IN TENURE AND COMPENSATION.  OUR
CONCLUSION, IT SHOULD BE NOTED, IS NOT AN EX POST FACTO RESURRECTION OF
A BANISHED INDEPENDENCE.  THE JUDGES OF THESE TWO COURTS HAVE NEVER
ACCEPTED THE DEPENDENT STATUS THRUST AT THEM BY THE BAKELITE AND
WILLIAMS DECISIONS.  SEE, E.G., JUDGE MADDEN WRITING FOR THE COURT OF
CLAIMS IN POPE V. UNITED STATES, 100 CT. CL. 375, 53 F. SUPP. 570,
REV'D, 323 U.S. 1.  THE FACTORS SET OUT AT LENGTH IN THIS OPINION,
WHICH WERE NOT CONSIDERED IN THE BAKELITE AND WILLIAMS OPINIONS, MAKE
PLAIN THAT THE DIFFERING CONCLUSION WE NOW REACH DOES NO MORE THAN
CONFER LEGAL RECOGNITION UPON AN INDEPENDENCE LONG EXERCISED IN FACT. 

THAT RECOGNITION SUFFICES TO DISPOSE OF THE PRESENT CASES.  FOR IT
CAN HARDLY BE CONTENDED THAT THE SPECIALIZED FUNCTIONS OF THESE JUDGES
DEPRIVE THEM OF CAPACITY, AS A MATTER OF DUE PROCESS OF LAW, TO SIT IN
JUDGMENT UPON THE STAPLE BUSINESS OF THE DISTRICT COURTS AND COURTS OF
APPEALS.  WHETHER THEY SHOULD BE GIVEN SUCH ASSIGNMENTS MAY BE AND HAS
BEEN A PROPER SUBJECT FOR CONGRESSIONAL DEBATE, E.G., 62 CONG. REC. 190
191, 207-209 (1921), BUT ONCE LEGISLATIVELY RESOLVED IT CAN SCARCELY
RISE TO THE DIGNITY OF A CONSTITUTIONAL QUESTION.  TO BE SURE, A JUDGE
OF SPECIALIZED EXPERIENCE MAY AT FIRST NEED TO DEVOTE EXTRA TIME AND
ENERGY TO FAMILIARIZE HIMSELF WITH CRIMINAL, LABOR RELATIONS, OR OTHER
CASES BEYOND HIS ACCUSTOMED KEN.  BUT TO ELEVATE THIS TEMPORARY
DISADVANTAGE INTO A CONSTITUTIONAL DISABILITY WOULD BE TANTAMOUNT TO
SUGGESTING THAT THE PRESIDENT MAY NEVER APPOINT TO THE BENCH A LAWYER
WHOSE LIFE'S PRACTICE MAY HAVE BEEN DEVOTED TO PATENT, TAX, ANTITRUST,
OR ANY OTHER SPECIALIZED FIELD OF LAW IN WHICH MANY EMINENTLY WELL
QUALIFIED LAWYERS ARE WONT TO ENGAGE.  THE PROPOSITION WILL NOT, OF
COURSE, SURVIVE ITS STATEMENT. 

THE JUDGMENTS OF THE COURTS OF APPEALS ARE AFFIRMED. 

FN1  ACT OF JULY 28, 1953, SEC. 1, 67 STAT. 226, ADDED TO 28 U.S.C.
SEC. 171 (COURT OF CLAIMS); ACT OF AUGUST 25, 1958, SEC. 1, 72 STAT.
848, ADDED TO 28 U.S.C. SEC. 211 (COURT OF CUSTOMS AND PATENT
APPEALS).  SEE ALSO ACT OF JULY 14, 1956, SEC. 1, 70 STAT. 532, ADDED
TO 28 U.S.C. SEC. 251 (CUSTOMS COURT). 

FN2  "THE CHIEF JUSTICE OF THE UNITED STATES MAY DESIGNATE AND ASSIGN
TEMPORARILY ANY JUDGE OF THE COURT OF CLAIMS OR THE COURT OF CUSTOMS
AND PATENT APPEALS  ...  TO PERFORM JUDICIAL DUTIES IN ANY CIRCUIT,
EITHER IN A COURT OF APPEALS OR DISTRICT COURT, UPON PRESENTATION OF A
CERTIFICATE OF NECESSITY BY THE CHIEF JUDGE OR CIRCUIT JUSTICE OF THE
CIRCUIT WHEREIN THE NEED ARISES." 

FN3  28 U.S.C. SEC. 294(D) AUTHORIZES ASSIGNMENT OF A RETIRED JUDGE
FROM EITHER COURT TO "PERFORM SUCH JUDICIAL DUTIES AS HE IS WILLING AND
ABLE TO UNDERTAKE" IN ANY CIRCUIT. 

FN4  THE PETITION IN NO. 481 SOUGHT CERTIORARI ONLY AS TO THAT
ISSUE. 

FN5  10 STAT. 612 (1855), AS AMENDED, 28 U.S.C. SEC. 173 (COURT OF
CLAIMS); 46 STAT. 590, 762 (1930), AS AMENDED, 28 U.S.C. SEC. 213
(COURT OF CUSTOMS AND PATENT APPEALS).  JUDGE MADDEN WAS APPOINTED IN
1941, BRIEF FOR PETITIONER IN NO. 242, PP. 7-8, AND RETIRED IN 1961,
290 F.2D XVI; JUDGE JACKSON WAS APPOINTED IN 1937, BRIEF FOR PETITIONER
IN NO. 481, PP. 9-10, AND RETIRED IN 1952, 193 F.2D XV. 

FN6  THE BEARING OF SEC. 2 OF ART. III ON PETITIONERS' CLAIMS IS
DISCUSSED LATER.  INFRA, PP. 562-583. 

FN7  THE ABSTRACTNESS OF THE PRESENT CONTROVERSY IS GRAPHICALLY
DEMONSTRATED BY THE DISPARITY IN VOLUME BETWEEN RECORDS AND BRIEFS. 
THE RECORDS IN BOTH CASES AMOUNT TO BUT 66 PAGES OF MOTIONS, OPINIONS,
AND THE LIKE, WITH NO RELEVANT TRANSCRIPTS OF PROCEEDINGS, WHILE THE
BRIEFS EXTEND TO 533 PAGES EXCLUSIVE OF APPENDICES. 

FN8  UNDER OUR LIMITED WRIT OF CERTIORARI, 368 U.S. 814, WE HAVE NO
OCCASION TO CONSIDER WHETHER FEDERAL LAW WAS MORE APPROPRIATELY THE
MEASURE OF THE EMPLOYER'S OBLIGATION.  CF.  TEAMSTERS LOCAL 174 V.
LUCAS FLOUR CO., 369 U.S. 95. 

FN9  THE DEBATES AND REPORTS IN CONGRESS DISPLAY NO AWARENESS OF THE
PROBLEM.  SEE H.R.  REP. NO. 1152, 67TH CONG., 2D SESS. (1922); 62
CONG. REC. 190-191, 207-209 (1921). 

FN10  ARTICLE II, SEC. 2, CL. 2 OF THE CONSTITUTION PROVIDES THAT THE
PRESIDENT: 

"  ...  SHALL NOMINATE, AND BY AND WITH THE ADVICE AND CONSENT OF THE
SENATE, SHALL APPOINT AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS,
JUDGES OF THE SUPREME COURT, AND ALL OTHER OFFICERS OF THE UNITED
STATES, WHOSE APPOINTMENTS ARE NOT HEREIN OTHERWISE PROVIDED FOR, AND
WHICH SHALL BE ESTABLISHED BY LAW:  BUT THE CONGRESS MAY BY LAW VEST
THE APPOINTMENT OF SUCH INFERIOR OFFICERS, AS THEY THINK PROPER, IN THE
PRESIDENT ALONE, IN THE COURTS OF LAW, OR IN THE HEADS OF
DEPARTMENTS." 

FN11  COMPARE THE STATUTE CREATING THE EMERGENCY COURT OF APPEALS, TO
CONSIST OF THREE OR MORE JUDGES "DESIGNATED BY THE CHIEF JUSTICE OF THE
UNITED STATES FROM JUDGES OF THE UNITED STATES DISTRICT COURTS AND
CIRCUIT COURTS OF APPEALS."  ACT OF JANUARY 30, 1942, C. 26, SEC.
204(C), 56 STAT. 23, 32. 

FN12  HEARINGS ON H.R. 1070 BEFORE SUBCOMMITTEE NO. 2 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, PP. 6-7, 24 (UNPUBLISHED, MAY 19, 1953; ON
FILE WITH THE CLERK OF THE COMMITTEE)(TESTIMONY OF JUDGE HOWELL OF THE
COURT OF CLAIMS); H.R. REP. NO. 695, 83D CONG., 1ST SESS. 2, 5-6
(1953); S. REP. NO. 275, 83D CONG., 1ST SESS. 2 (1953); H.R. REP. NO.
2349, 85TH CONG., 2D SESS. (1958); S. REP. NO. 2309, 85TH CONG., 2D
SESS. (1958); 104 CONG. REC. 16095 (1958)(REMARKS OF REPRESENTATIVE
KEATING). 

FN13  FAR FROM BEING "INCAPABLE OF RECEIVING" FEDERAL-QUESTION
JURISDICTION, THE TERRITORIAL COURTS HAVE LONG EXERCISED A JURISDICTION
COMMENSURATE IN THIS REGARD WITH THAT OF THE REGULAR FEDERAL COURTS AND
HAVE BEEN SUBJECTED TO THE APPELLATE JURISDICTION OF THIS COURT
PRECISELY BECAUSE THEY DO SO.  BENNER V. PORTER, 9 HOW.  235, 243;
CLINTON V. ENGLEBRECHT, 13 WALL.  434, 447; REYNOLDS V. UNITED STATES,
98 U.S. 145, 154; UNITED STATES V. COE, 155 U.S. 76, 86; BALZAC V.
PORTO RICO, 258 U.S. 298, 312-313; INTERNATIONAL LONGSHOREMEN'S UNION
V. JUNEAU SPRUCE CORP., 342 U.S. 237, 240-241; CF. MARTIN V. HUNTER'S
LESSEE, 1 WHEAT.  304, 338; SEE POPE V. UNITED STATES, 323 U.S. 1, 13
14. 

FN14  UNDER BARBER V. BARBER, 21 HOW.  582, 584, FOR EXAMPLE, THE
FEDERAL COURTS IN THE STATES WERE INCOMPETENT TO RENDER DIVORCES; BUT
IN THE TERRITORIES, WHERE THE LEGISLATIVE POWER OF THE UNITED STATES OF
NECESSITY EXTENDED TO ALL SUCH LOCAL MATTERS, THE TERRITORIAL COURTS
TOOK COGNIZANCE OF THEM.  SIMMS V. SIMMS, 175 U.S. 162, 167-168; DE LA
RAMA V. DE LA RAMA, 201 U.S. 303. 

FN15  BENNER V. PORTER, 9 HOW.  235, 240, 244.  FOR STATUTORY
TECHNIQUES SINCE DEVELOPED TO AVOID THE INTERREGNAL PROBLEMS INVOLVED
IN THAT CASE, SEE METLAKATLA INDIAN COMMUNITY V. EGAN, 363 U.S. 555,
557-559; 1 MOORE, FEDERAL PRACTICE (2D ED. 1961), 32-34. 

FN16  SEE CLINTON V. ENGLEBRECHT, 13 WALL.  434, 441-445; HORNBUCKLE
V. TOOMBS, 18 WALL.  648, 655-656. 

FN17  COMPARE CLINTON V. ENGLEBRECHT, SUPRA, 13 WALL., AT 446, 447,
WITH DREYER V. ILLINOIS, 187 U.S. 71, 83-84. 

FN18  SEE GENERALLY, AS TO EACH OF THESE COURTS, 1 MOORE, FEDERAL
PRACTICE (2D ED. 1961), 40-44, 47-50. 

FN19  WE DO NOT NOW DECIDE, OF COURSE, WHETHER THE SAME CONDITIONS
STILL OBTAIN IN EACH OF THE PRESENT-DAY TERRITORIES OR WHETHER, EVEN IF
THEY DO, CONGRESS MIGHT NOT CHOOSE TO ESTABLISH AN ARTICLE III COURT IN
ONE OR MORE OF THEM. 

FN20  EX PARTE BAKELITE CORP., 279 U.S. 438, 453, 458; ACCORD,
WILLIAMS V. UNITED STATES, 289 U.S. 553, 579. 

FN21  WILLIAMS ITSELF RECOGNIZED THAT THE JURISDICTION CONFERRED ON
THE COURT OF CLAIMS BY THE TUCKER ACT, NOW 28 U.S.C. SEC. 1491, TO
AWARD JUST COMPENSATION FOR A GOVERNMENTAL TAKING, EMPOWERED THAT COURT
TO DECIDE WHAT HAD PREVIOUSLY BEEN DESCRIBED AS A JUDICIAL AND NOT A
LEGISLATIVE QUESTION.  289 U.S., AT 581; SEE, E.G., MONONGAHELA
NAVIGATION CO. V. UNITED STATES, 148 U.S. 312, 327.  AS FOR BAKELITE,
ITS RELIANCE, 279 U.S., AT 458 N. 26, ON CARY V. CURTIS, 3 HOW.  236,
FOR THE PROPOSITION THAT DISPUTES OVER CUSTOMS DUTIES MAY BE ADJUDGED
SUMMARILY WITHOUT RECOURSE TO JUDICIAL PROCEEDINGS, APPEARS TO HAVE
OVERLOOKED THE CARE WITH WHICH THAT DECISION SPECIFICALLY DECLINED TO
RULE WHETHER ALL RIGHT OF ACTION MIGHT BE TAKEN AWAY FROM A PROTESTANT,
EVEN GOING SO FAR AS TO SUGGEST SEVERAL JUDICIAL REMEDIES THAT MIGHT
HAVE BEEN AVAILABLE.  SEE 3 HOW., AT 250. 

FN22  279 U.S., AT 451 N. 8; 289 U.S., AT 579. 

FN23  18 HOW., AT 284. 

FN24  BUT SEE NOTE 21, SUPRA. 

FN25  SEE GENERALLY HART AND WECHSLER, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM (1953), 312-340, AND MORE SPECIFICALLY, PP. 567-568,
INFRA. 

FN26  SEC. 3, 12 STAT. 765, NOW 28 U.S.C. SEC. 1503.  SEE ALSO 18
STAT. 481 (1875), AS AMENDED, 31 U.S.C. SEC. 227, REQUIRING THE
COMPTROLLER GENERAL TO BRING SUIT AGAINST A NONCONSENTING JUDGMENT
CREDITOR IF THAT OFFICIAL BELIEVES A DEBT NOT PREVIOUSLY ASSERTED AS A
SET-OFF IS DUE THE UNITED STATES.    FN27  22 WALL., AT 648. 

FN28  EVANS V. GORE, 253 U.S. 245, 248-254. 

FN29  UNDER THE LEGISLATIVE APPROPRIATION ACT OF JUNE 30, 1932, C.
314, 47 STAT. 382 - THE STATUTE UNDER WHICH THE WILLIAMS AND O'DONOGHUE
CASES AROSE - THE JUDGES OF THE COURT OF CUSTOMS AND PATENT APPEALS
ACCEPTED A REDUCTION IN SALARY FROM $12,500 TO $10,000.  THAT COURT HAD
NOT, HOWEVER, BEEN SPECIFIED FOR REDUCTION BY CONGRESS; THE ACTION OF
THE JUDGES WAS UNDERSTANDABLE COMING AS IT DID AFTER BAKELITE HAD BEEN
DECIDED; AND UNDER SEC. 109 OF THE ACT, 47 STAT. 403, THE TREASURY WAS
AUTHORIZED TO ACCEPT REDUCTIONS IN PAYMENT VOLUNTARILY TENDERED BY
JUDGES WHOSE SALARY WAS CONSTITUTIONALLY EXEMPT FROM DIMINUTION. 

FN30  36 STAT. 106.  PROVISION WAS MADE FOR THE TRANSFER OF PENDING
CASES AND OF APPEALS FROM FINAL DECISIONS IN AND OF THE CIRCUIT COURTS
AND COURTS OF APPEALS.  36 STAT. 106, 107.  THE VERY FIRST CASE HEARD
BY THE COURT OF CUSTOMS APPEALS WAS AN APPEAL FROM THE CIRCUIT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK IN HANSEN V. UNITED STATES, 1 CT.
CUST.  APP.  1; IT ALSO TOOK JURISDICTION OF A CASE TRANSFERRED FROM
THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN UNITED STATES V. SEATTLE
BREWING & MALTING CO., 1 CT. CUST.  APP.  362. 

FN31  ITS FUNCTIONS WERE CONTINUED UNDER THE DEFENSE PRODUCTION ACT
OF 1950, C. 932, SEC. 408, 64 STAT. 798, 808, TO DETERMINE THE VALIDITY
OF PRICE AND WAGE STABILIZATION ORDERS ISSUED UNDER THAT ACT.  ON APRIL
18, 1962, AFTER DENIAL OF CERTIORARI IN THE LAST CASE ON ITS DOCKET,
ROSENZWEIG V. BOUTIN, 369 U.S. 818, THE COURT TERMINATED ITS
EXISTENCE.  299 F.2D 1-21. 

FN32  AS THERE WAS, FOR EXAMPLE, IN SUITS BETWEEN STATES AND BY THE
UNITED STATES AGAINST A STATE.   RHODE ISLAND V. MASSACHUSETTS, 12 PET.
657, 720; UNITED STATES V. TEXAS, 143 U.S. 621, 639-646. 

FN33  POCONO PINES ASSEMBLY HOTELS CO. V. UNITED STATES, 73 CT. CL.
447, LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS OR PROHIBITION DENIED,
285 U.S. 526, IN WHICH THE CONGRESS "REMANDED" A FINAL AND UNAPPEALED
DECISION AGAINST THE UNITED STATES TO THE COURT OF CLAIMS FOR NEW
FINDINGS, DOES NOT DETRACT FROM THE AUTHORITY OF KLEIN.  WITHOUT
EXAMINING ANYTHING ELSE, IT IS ENOUGH TO NOTE THAT THE CONSIDERATIONS
GOVERNING A GRANT OR DENIAL OF A PETITION FOR MANDAMUS ARE, LIKE THOSE
CONTROLLING THE ISSUANCE OF A WRIT OF CERTIORARI, SO DISCRETIONARY WITH
THE COURT AS TO DEPRIVE A DENIAL OF PRECEDENTIAL EFFECT ON THIS SCORE. 
COMPARE SUP.  CT. RULE 30 WITH RULE 19(1), (2), AND CF. BROWN V. ALLEN,
344 U.S. 443, 488, 491-492 (OPINION OF FRANKFURTER, J.). 

FN34  "NO MONEY SHALL BE DRAWN FROM THE TREASURY, BUT IN CONSEQUENCE
OF APPROPRIATIONS MADE BY LAW  ...  ." 

FN35  SEE ALSO THE INTERVENING OPINIONS AND DISPOSITIONS:  209 U.S.
514; 220 U.S. 1, 36; 222 U.S. 17, 19-20; 231 U.S. 89; 234 U.S. 117; 238
U.S. 202; 241 U.S. 531. 

FN36  THE PROVISION IN 28 U.S.C. SEC. 2503 FOR COMMISSIONERS TO TAKE
EVIDENCE AND MAKE PRELIMINARY RULINGS IS CONFORMABLE IN ALL RESPECTS
WITH THE PRACTICE OF MASTERS IN CHANCERY.  FOR THE JUDICIAL QUALITY OF
THE PROCEEDINGS, SEE THE REVISED RULES OF THE COURT OF CLAIMS,
EFFECTIVE DECEMBER 2, 1957, 140 CT. CL. II, 28 U.S.C. APP., P. 5237, AS
AMENDED, ID. (SUPP.  III), P. 863. 

FN37  IN 1950, TUCKER ACT CASES CONSTITUTED 2,350 OF THE 2,472
PROCEEDINGS CONDUCTED BY THE COURT.   WILKINSON, THE UNITED STATES
COURT OF CLAIMS, 36 A.B.A.J. 89, 159 (1950).  THE PERCENTAGE MAY WELL
HAVE BEEN AUGMENTED SINCE THAT TIME BY THE EXTENSION OF TUCKER ACT
JURISDICTION TO INDIAN CLAIMS ACCRUING AFTER AUGUST 13, 1946.  28
U.S.C. SEC. 1505, ADDED BY 63 STAT. 102 (1949). 

FN38  28 U.S.C. SEC. 1494 (CONTRACTORS OR THEIR SURETIES); 28 U.S.C.
SECS. 1496, 2512 (DISBURSING OFFICERS). 

FN39  R.S. SEC. 5261 (1878), AS AMENDED, 45 U.S.C. SEC. 87
(GOVERNMENT-AIDED RAILROADS). 

FN40  28 U.S.C. SEC. 1499 (VIOLATIONS OF THE EIGHT-HOUR LAW, 37 STAT.
137 (1912), AS AMENDED, 40 U.S.C. SEC. 324). 

FN41  28 U.S.C. (SUPP. III) SEC. 1498. 

FN42  28 U.S.C. SECS. 1495, 2513 (WRONGFUL IMPRISONMENT); 28 U.S.C.
SEC. 1497 (TRESPASS TO OYSTER BEDS). 

FN43  60 STAT. 1049, 1054 (1946), 25 U.S.C. SEC. 70S. 

FN44  42 STAT. 15 (1921), AS AMENDED, 19 U.S.C. SEC. 169, MAKES 28
U.S.C. SEC. 1541 APPLICABLE AS WELL TO THE ANTIDUMPING STATUTE.  SEE
ALSO 46 STAT. 735 (1930), AS AMENDED, 19U.S.C. SEC. 1516(B), (C),
PERMITTING CLASSIFICATION OR VALUATION CASES TO BE INITIATED BY PROTEST
FROM A COMPETING DOMESTIC MANUFACTURER, AFTER WHICH THE IMPORTER'S
CONSIGNEE MAY BE MADE A PARTY TO SUIT IN THE CUSTOMS COURT, WITH APPEAL
TO THE COURT OF CUSTOMS AND PATENT APPEALS. 

FN45  CURIOUSLY, DUELL WAS NOT CITED IN POSTUM, WHILE THE CASES THAT
WERE - FRASCH V. MOORE, 211 U.S. 1; ATKINS V. MOORE, 212 U.S. 285;
BALDWIN CO. V. HOWARD CO., 256 U.S. 35 - HAD, AS THE COURT RECOGNIZED,
HELD ONLY THAT THE STATUTORY SCHEME OF REVIEW DID NOT PRODUCE A "FINAL
JUDGMENT" AS REQUIRED BY THE STATUTE THEN GOVERNING APPEALS TO THE
COURT. 

FN46  SEE STERN AND GRESSMAN, SUPREME COURT PRACTICE (1950), 44-46. 
BUT SEE HOBART MFG. CO. V. LANDERS, FRARY & CLARK, 26 F. SUPP. 198,
202, AFF'D PER CURIAM, 107 F.2D 1016; BATTERY PATENTS CORP. V. CHICAGO
CYCLE SUPPLY CO., 111 F.2D 861, 863; REVISER'S NOTE, 35 U.S.C. SEC.
144. 

FN47  NATURALIZATION ACT OF JUNE 29, 1906, C. 3592, SEC. 15, 34 STAT.
596, 601. 

FN48  FOR LATER DEVELOPMENTS, SEE SCHNEIDERMAN V. UNITED STATES, 320
U.S. 118, 123-125; KNAUER V. UNITED STATES, 328 U.S. 654, 671-673;
CHAUNT V. UNITED STATES, 364 U.S. 350. 

FN49  WE INTIMATE NO OPINION WHETHER 28 U.S.C. SEC. 1256 WAS INTENDED
BY CONGRESS TO MAKE PATENT AND TRADEMARK CASES REVIEWABLE BY CERTIORARI
IN THIS COURT.  SEE KURLAND AND WOLFSON, SUPREME COURT REVIEW OF THE
COURT OF CUSTOMS AND PATENT APPEALS, 18 G.W.L. REV.  192, 194-198
(1950). 

FN50  SECTION 316(C) OF THE TARIFF ACT OF 1922, C. 356, 42 STAT. 858,
943, INVOLVED IN BAKELITE, WAS  REENACTED IN VIRTUALLY IDENTICAL TERMS
BY SEC. 337(C) OF THE TARIFF ACT OF 1930, 46 STAT. 590, 703, AS
AMENDED, 19 U.S.C. SEC. 1337(C). 

FN51  SANBORN INVOLVED THE DEPARTMENTAL REFERENCE JURISDICTION OF THE
COURT OF CLAIMS, SINCE REPEALED BY 67 STAT. 226 (1953); BUT THE
FUNCTIONS PERFORMED BY THE COURT IN THAT CASE WERE NOT IN SUBSTANCE
DIFFERENT FROM THOSE IT STILL PERFORMS ON REQUEST BY CONGRESS. 

FN52  SEE KELLER V. POTOMAC ELECTRIC POWER CO., 261 U.S. 428. 

FN53  FEDERAL RADIO COMM'N V. GENERAL ELECTRIC CO., 281 U.S. 464,
WHICH SUSTAINED THE AUTHORITY OF THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA TO RENDER AN "ADMINISTRATIVE" DECISION RESPECTING THE
ISSUANCE OF A RADIO BROADCASTING LICENSE TO A STATION IN SCHENECTADY,
NEW YORK, WAS DECIDED AT A TIME WHEN THE COURTS OF THE DISTRICT WERE
REGARDED WHOLLY AS LEGISLATIVE COURTS.  ID., AT 468. 

IT IS SIGNIFICANT THAT ALL OF THE JURISDICTION AT ISSUE IN THE
KELLER, POSTUM, AND GENERAL ELECTRIC CASES HAS LONG SINCE BEEN
TRANSFORMED INTO JUDICIAL BUSINESS.  THE CHANGE WITH RESPECT TO REVIEW
OF PATENT OFFICE DECISIONS TOOK PLACE, AS WE HAVE SEEN, P. 577, SUPRA,
BEFORE THE TRANSFER OF THAT JURISDICTION TO THE COURT OF CUSTOMS AND
PATENT APPEALS.  REVIEW OF THE PUBLIC UTILITIES COMMISSION WAS
RESTRICTED TO QUESTIONS OF LAW UPON THE EVIDENCE BEFORE THE COMMISSION,
IN THE ACT OF AUGUST 27, 1935, SEC. 2, 49 STAT. 882, D.C.  CODE, 1961,
SEC. 43-705.  SEE PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451,
458.  AND THE ACT OF JULY 1, 1930, C. 788, 46 STAT. 844, LIKEWISE MADE
REVIEW OF THE RADIO COMMISSION JUDICIAL, AS WAS RECOGNIZED IN FEDERAL
RADIO COMM'N V. NELSON BROS. CO., 289 U.S. 266, 274-278. 

FN54  THE D.C. CODE, 1961, TIT. 11, C. 5, ESTABLISHES A SPECIAL TERM
OF THE UNITED STATES DISTRICT COURT AS A PROBATE COURT, WHEREAS THE
OTHER FEDERAL DISTRICT COURTS HAVE BEEN DEBARRED FROM EXERCISING SUCH A
JURISDICTION AS ONE TRADITIONALLY WITHIN THE DOMAIN OF THE STATES. 
BYERS V. MCAULEY, 149 U.S. 608, 619.  SIMILARLY, THE DIVORCE
PROCEEDINGS MAINTAINABLE UNDER THE GENERAL JURISDICTIONAL GRANT, D.C.
CODE, SEC. 11-306; SEE BOTTOMLEY V. BOTTOMLEY, 104 U.S. APP. D.C. 311,
262 F.2D 23, ARE BEYOND THE KEN OF THE FEDERAL COURTS IN THE STATES. 
OHIO EX REL. POPOVICI V. AGLER, 280 U.S. 379, 383. 

THE APPOINTING AUTHORITY GIVEN JUDGES OF THE DISTRICT COURT TO SELECT
MEMBERS OF THE BOARD OF EDUCATION AND OF THE COMMISSION ON MENTAL
HEALTH, D.C. CODE, SECS. 31-101, 21-308, IS PROBABLY TRACEABLE TO ART.
II, SEC. 2 OF THE CONSTITUTION.  SEE NOTE 10, SUPRA; EX PARTE SIEBOLD,
100 U.S. 371, 397-398. 

FN55  BRIEF ON BEHALF OF THE CHIEF JUDGE AND THE ASSOCIATE JUDGES OF
THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS AS AMICI CURIAE,
P. 10. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING IN
THE RESULT. 

I CANNOT AGREE TO THE UNNECESSARY OVERRULING OF EX PARTE BAKELITE
CORP., 279 U.S. 438 (1929), AND WILLIAMS V. UNITED STATES, 289 U.S. 553
(1933).  BOTH WERE UNANIMOUS OPINIONS BY MOST DISTINGUISHED COURTS,
(FN1) HEADED IN THE BAKELITE CASE BY CHIEF JUSTICE TAFT AND IN WILLIAMS
BY CHIEF JUSTICE HUGHES. 

LONG BEFORE GLIDDEN V. ZDANOK WAS FILED, THE CONGRESS HAD DECLARED
THE COURT OF CLAIMS "TO BE A COURT ESTABLISHED UNDER ARTICLE III OF THE
CONSTITUTION OF THE UNITED STATES."  ACT OF JULY 28, 1953, SEC. 1, 67
STAT. 226.  NOT THAT THIS IPSE DIXIT MADE THE COURT OF CLAIMS AN
ARTICLE III COURT, FOR IT MUST BE EXAMINED IN LIGHT OF THE
CONGRESSIONAL POWER EXERCISED AND THE JURISDICTION ENJOYED, TOGETHER
WITH THE CHARACTERISTICS OF ITS JUDGES.  BUT THE 1953 ACT DID
DEFINITELY ESTABLISH THE INTENT OF THE CONGRESS, WHICH PRIOR TO THAT
TIME WAS NOT CLEAR IN LIGHT OF THE WILLIAMS HOLDING 20 YEARS EARLIER
THAT IT WAS NOT AN ARTICLE III COURT. 

IT IS MY BELIEF THAT PRIOR TO 1953 THE COURT OF CLAIMS HAD ALL OF THE
CHARACTERISTICS OF AN ARTICLE III COURT - JURISDICTION OVER JUSTICIABLE
MATTERS, ISSUANCE OF FINAL JUDGMENTS, JUDGES APPOINTED BY THE PRESIDENT
WITH CONSENT OF THE SENATE - SAVE AS TO THE CONGRESSIONAL REFERENCE
MATTERS.  IT WAS THE FACT THAT A SUBSTANTIAL PORTION OF ITS
JURISDICTION CONSISTED OF CONGRESSIONAL REFERENCES THAT COMPELLED THE
DECISION IN WILLIAMS THAT IT WAS NOT AN ARTICLE III COURT AND THEREFORE
THE SALARIES OF ITS JUDGES COULD BE REDUCED.  (FN2)  SINCE THAT TIME
THE ARTICLE III JURISDICTION OF THE COURT OF CLAIMS HAS BEEN ENLARGED
BY INCLUDING ORIGINAL JURISDICTION UNDER SEVERAL ACTS, E.G., SUITS
AGAINST THE UNITED STATES FOR DAMAGES FOR UNJUST CONVICTION, ACT OF MAY
24, 1938, SECS. 1-4, 52 STAT.  438, 28 U.S.C. SEC. 1495, AND APPELLATE
JURISDICTION OVER TORT SUITS AGAINST THE UNITED STATES TRIED IN THE
DISTRICT COURTS, ACT OF AUG. 2, 1946, SEC. 412(A)(2), 60 STAT. 844, 28
U.S.C. SEC. 1504, AND OVER SUITS BEFORE THE INDIAN CLAIMS COMMISSION,
ACT OF MAY 24, 1949, SEC. 89(A), 63 STAT. 102, 28 U.S.C. SEC. 1505.  IN
ADDITION, THE FORMER JURISDICTION OVER QUESTIONS REFERRED BY THE
EXECUTIVE BRANCH WAS WITHDRAWN IN 1953.  ACT OF JULY 28, 1953, SEC. 8,
67 STAT. 226.  THE RESULT IS THAT PRACTICALLY ALL OF THE COURT'S
JURISDICTION IS NOW COMPRISED OF ARTICLE III CASES.  AND I READ THE
1953 ACT AS UNEQUIVOCALLY EXPRESSING CONGRESS' INTENT THAT THIS COURT -
THE JURISDICTION OF WHICH WAS THEN ALMOST ENTIRELY OVER ARTICLE III
CASES - SHOULD BE AN ARTICLE III COURT, THEREBY IRREVOCABLY
ESTABLISHING LIFE TENURE AND IRREDUCIBLE SALARIES FOR ITS JUDGES. 

IT IS TRUE THAT CONGRESS STILL MAKES LEGISLATIVE REFERENCES TO THE
COURT, AVERAGING SOME 10 A YEAR.  THE ACCEPTANCE OF JURISDICTION OF
EITHER EXECUTIVE OR LEGISLATIVE REFERENCES CALLING FOR ADVISORY
OPINIONS HAS NEVER BEEN HONORED BY ARTICLE III COURTS.  INDEED, THIS
COURT SINCE 1793 HAS CONSISTENTLY REFUSED SO TO ACT.  CORRESPONDENCE OF
THE JUSTICES, 3 JOHNSTON, CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY
(1891), 486-489.  MUSKRAT V. UNITED STATES, 219 U.S. 346 (1911).  I DO
NOT CONSTRUE THE LEGISLATIVE HISTORY OF THE 1953 ACT TO BE SO CLEAR AS
TO REQUIRE THE COURT OF CLAIMS TO CARRY ON THIS FUNCTION, WHICH APPEARS
TO BE MINUSCULE.  ON THE CONTRARY, THE CONGRESSIONAL MANDATE CLEARLY
AND DEFINITELY DECLARED THE COURT "TO BE A COURT ESTABLISHED UNDER
ARTICLE III."  I WOULD CARRY OUT THAT MANDATE.  IN MY VIEW THE COURT OF
CLAIMS, IF AND WHEN SUCH A REFERENCE OCCURS, SHOULD WITH DUE DEFERENCE
ADVISE THE CONGRESS, AS THIS COURT ADVISED THE PRESIDENT 169 YEARS AGO,
THAT IT CANNOT RENDER ADVISORY OPINIONS. 

LIKEWISE I FIND THAT THE COURT OF CUSTOMS AND PATENT APPEALS HAS BEEN
AN ARTICLE III COURT SINCE 1958.  IT WAS CREATED BY THE CONGRESS IN
1909 TO EXERCISE EXCLUSIVE APPELLATE JURISDICTION OVER CUSTOMS CASES. 
PAYNE-ALDRICH TARIFF ACT OF AUG. 5, 1909, 36 STAT. 11, 105-108.  AT
THAT TIME THESE CASES WERE REVIEWED BY CIRCUIT COURTS OF APPEALS -
CLEARLY OF ARTICLE III STATUS - 36 STAT. 106, AND THEY HAVE SINCE BEEN
CONSIDERED ON CERTIORARI BY THIS COURT WITHOUT SUGGESTION THAT THEY
WERE NOT "CASES" IN THE ARTICLE III SENSE.  E.G., THE FIVE PER CENT.
DISCOUNT CASES, 243 U.S. 97 (1917).  (FN3)  THE CONGRESS ENLARGED THE
JURISDICTION OF THE COURT OF CUSTOMS AND PATENT APPEALS IN 1922 TO
INCLUDE APPEALS ON QUESTIONS OF LAW FROM TARIFF COMMISSION FINDINGS IN
PROCEEDINGS RELATING TO UNFAIR PRACTICES IN THE IMPORT TRADE.  TARIFF
ACT OF 1922, 42 STAT. 943, 944.  IN 1929 THIS COURT IN BAKELITE, SUPRA,
WHICH INVOLVED A TARIFF MATTER, FOUND THESE REFERENCES TO BE OF AN
ADVISORY NATURE AND ON THIS BASIS DECLARED THE COURT OF CUSTOMS AND
PATENT APPEALS TO BE A LEGISLATIVE RATHER THAN AN ARTICLE III COURT. 
THE BAKELITE DECISION INDICATES THAT THIS COURT WAS OF THE IMPRESSION
THAT THE TARIFF JURISDICTION OF THE COURT OF CUSTOMS AND PATENT APPEALS
WOULD BE SIGNIFICANT. HOWEVER, SINCE THAT TIME THAT COURT HAS HANDLED
BUT FOUR SUCH REFERENCES - AND ONLY ONE IN THE LAST 27 YEARS.   AT
ABOUT THE SAME TIME THAT THE BAKELITE OPINION CAME DOWN, CONGRESS
TRANSFERRED THE APPELLATE JURISDICTION INTO PATENT AND TRADEMARK CASES
FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA TO THE COURT OF
CUSTOMS AND PATENT APPEALS.  ACT OF MARCH 2, 1929, SECS. 1, 2, 45 STAT.
1475.  THUS, CONTRARY TO THE APPARENT ASSUMPTION IN BAKELITE, THE
BUSINESS OF THAT COURT NOW CONSISTS EXCLUSIVELY OF ARTICLE III CASES -
WITH TARIFF REFERENCES PRACTICALLY NONEXISTENT (ONE IN THE LAST 27
YEARS).  IN VIEW OF THIS EVOLUTION OF ITS JURISDICTION, I BELIEVE THE
COURT BECAME AN ARTICLE III COURT UPON THE CLEAR MANIFESTATION OF
CONGRESSIONAL INTENT THAT IT BE SUCH.  ACT OF AUG. 25, 1958, SEC. 1, 72
STAT. 848. 

AS I HAVE INDICATED, SUPRA, THE HANDLING OF THE TARIFF REFERENCES -
NUMBERING ONLY 6 IN 40 YEARS - IS NOT AN ARTICLE III COURT FUNCTION. 
THE CONGRESS HAS DECLARED THE COURT OF CUSTOMS AND PATENT APPEALS TO BE
AN ARTICLE III COURT.  IT SHOULD, THEREFORE, IF AND WHEN SUCH A CASE
AROSE, WITH DUE DEFERENCE REFUSE TO EXERCISE SUCH JURISDICTION.  (FN4) 

I SEE NOTHING IN THE ARGUMENT THAT THE 1953 AND 1958 ACTS SO CHANGED
THE CHARACTER OF THESE COURTS AS TO REQUIRE NEW PRESIDENTIAL
APPOINTMENTS.  CONGRESS WAS MERELY RENOUNCING ITS POWER TO TERMINATE
THE FUNCTIONS OR REDUCE THE TENURE OR SALARY OF THE JUDGES OF THE
COURTS.  MUCH MORE DRASTIC CHANGES HAVE BEEN MADE WITHOUT
REAPPOINTMENT.  (FN5)  AND THERE IS NO SIGNIFICANCE TO THE FACT THAT
JUDGE JACKSON, WHO PRESIDED OVER THE LURK TRIAL, WAS NOT IN ACTIVE
STATUS IN 1958 WHEN CONGRESS DECLARED HIS COURT TO BE AN ARTICLE III
COURT.  HE REMAINED IN OFFICE AS A JUDGE OF THAT COURT EVEN THOUGH
RETIRED, CF. BOOTH V. UNITED STATES, 291 U.S. 339 (1934), AND HIS
JUDGESHIP WAS CONTROLLED BY ANY ACT CONCERNING THE JURISDICTION OF THAT
COURT OR THE STATUS OF ITS JUDGES. 

I WOULD AFFIRM. 

FN1  BAKELITE:  TAFT, HOLMES, VAN DEVANTER, MCREYNOLDS, BRANDEIS,
SUTHERLAND, BUTLER, SANFORD AND STONE.  WILLIAMS:  HUGHES, VAN
DEVANTER, MCREYNOLDS, BRANDEIS, SUTHERLAND, BUTLER, STONE, ROBERTS AND
CARDOZO. 

FN2  "'FROM THE OUTSET CONGRESS HAS REQUIRED IT (THE COURT OF CLAIMS)
TO GIVE MERELY ADVISORY DECISIONS ON MANY MATTERS.  UNDER THE ACT
CREATING IT ALL OF ITS DECISIONS WERE TO BE OF THAT NATURE.  AFTERWARDS
SOME WERE TO HAVE EFFECT AS BINDING JUDGMENTS, BUT OTHERS WERE STILL TO
BE MERELY ADVISORY.  THIS IS TRUE AT THE PRESENT TIME.'"  WILLIAMS V.
UNITED STATES, SUPRA, AT 569 (QUOTING FROM EX PARTE BAKELITE). 

"FURTHER REFLECTION TENDS ONLY TO CONFIRM THE VIEWS EXPRESSED IN THE
BAKELITE OPINION  ...  AND WE FEEL BOUND TO REAFFIRM AND APPLY THEM. 
AND, GIVING THESE VIEWS DUE EFFECT HERE, WE SEE NO ESCAPE FROM THE
CONCLUSION THAT IF THE COURT OF CUSTOMS APPEALS IS A LEGISLATIVE COURT,
SO ALSO IS THE COURT OF CLAIMS."  WILLIAMS, AT 571.  THE BAKELITE
DECISION WAS POSITED SQUARELY ON THE LEGISLATIVE REFERENCE FUNCTION. 
SEE EX PARTE BAKELITE, SUPRA, 454-458. 

FN3  THAT ITS ORIGINAL JURISDICTION WAS IN "CASES" IN THE ARTICLE
III, SEC. 2, SENSE CANNOT BE QUESTIONED.  SEE IN RE FRISCHER & CO., 16
CT. CUST.  APP.  191, 198 (1928); OSBORN V. BANK OF U.S., 9 WHEAT. 
738, 819 (1824); INTERSTATE COMMERCE COMMISSION V. BRIMSON, 154 U.S.
447, 487 (1894); TUTUN V. UNITED STATES, 270 U.S. 568, 576-577 (1926). 

FN4  THE VALIDITY OF JUDGE JACKSON'S PARTICIPATION, AS THE GOVERNMENT
POINTS OUT, MIGHT ALSO BE SUSTAINED UNDER THE ACT OF SEPTEMBER 14,
1922, C. 306, SEC. 5, 42 STAT. 837, 839, WHICH PROVIDED FOR THE
ASSIGNMENT OF JUDGES OF THE COURT OF CUSTOMS APPEALS TO THE COURTS OF
THE DISTRICT OF COLUMBIA.  THIS ACT WAS ON THE BOOKS WHEN JUDGE JACKSON
TOOK HIS SEAT ON THE COURT OF CUSTOMS AND PATENT APPEALS AS WELL AS
WHEN THE LURK CASE WAS TRIED. 

FN5  NOR DOES MY HOLDING CARRY ANY IMPLICATION THAT JUDGMENTS ENTERED
PRIOR TO THE DATE OF THESE ACTS IN WHICH JUDGES OF THESE COURTS
PARTICIPATED MIGHT BE COLLATERALLY ATTACKED.  EX PARTE WARD, 173 U.S.
452 (1899). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE DECISION IN THESE CASES HAS NOTHING TO DO WITH THE CHARACTER,
ABILITY, OR QUALIFICATION OF THE INDIVIDUALS WHO SAT ON ASSIGNMENT ON
THE COURT OF APPEALS IN NO. 242 AND ON THE DISTRICT COURT (FN1) IN NO.
481.  THE PROBLEM IS AN IMPERSONAL ONE, CONCERNING THE DIFFERENCES
BETWEEN AN ARTICLE I COURT AND AN ARTICLE III COURT.  MY BROTHER HARLAN
CALLS IT A PROBLEM OF A "HIGHLY THEORETICAL NATURE."  FAR FROM BEING
"THEORETICAL" IT IS INTENSELY PRACTICAL, FOR IT DEALS WITH POWERS OF
JUDGES OVER THE LIFE AND LIBERTY OF DEFENDANTS IN CRIMINAL CASES AND
OVER VAST PROPERTY INTERESTS IN COMPLICATED TRIALS CUSTOMARILY
INVOLVING THE RIGHT TO TRIAL BY JURY. 

PRIOR TO TODAY'S DECISION THE DISTINCTION BETWEEN THE TWO COURTS HAD
BEEN CLEAR AND UNMISTAKABLE.  BY ART. I, SEC. 8, CONGRESS IS GIVEN A
WIDE RANGE OF POWERS, INCLUDING THE POWER "TO PAY THE DEBTS" OF THE
UNITED STATES AND THE POWER TO "LAY AND COLLECT TAXES, DUTIES, IMPOSTS
AND EXCISES."  BY ART. I, SEC. 8, CONGRESS IS ALSO GIVEN THE POWER "TO
MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO
EXECUTION THE FOREGOING POWERS."  PURSUANT TO THE LATTER - THE
NECESSARY AND PROPER CLAUSE - THE COURT OF CLAIMS WAS CREATED "TO PAY
THE DEBTS"; (FN2) AND THE COURT OF CUSTOMS AND PATENT APPEALS WAS
CREATED IN FURTHERANCE OF THE COLLECTION OF DUTIES.  MY BROTHER HARLAN
SHOWS THAT THE COURT OF CUSTOMS APPEALS TRACES BACK TO THE PAYNE
ALDRICH TARIFF ACT OF AUGUST 5, 1909, WHICH SHOULD BE PROOF ENOUGH THAT
IT IS AN ADMINISTRATIVE COURT, PERFORMING ESSENTIALLY AN EXECUTIVE
TASK.  (FN3) 

IN WILLIAMS V. UNITED STATES, 289 U.S. 553, THE COURT IN A UNANIMOUS
DECISION WRITTEN BY MR. JUSTICE SUTHERLAND HELD THAT THE COURT OF
CLAIMS, THOUGH EXERCISING JUDICIAL POWER, WAS AN ARTICLE I COURT.  AND
IN EX PARTE BAKELITE CORP., 279 U.S. 438, THE COURT IN A UNANIMOUS
OPINION WRITTEN BY MR. JUSTICE VAN DEVANTER HELD THE COURT OF CUSTOMS
APPEALS TO BE AN ARTICLE I COURT.  TAFT WAS CHIEF JUSTICE WHEN EX PARTE
BAKELITE WAS DECIDED.  HUGHES WAS CHIEF JUSTICE WHEN WILLIAMS V. UNITED
STATES WAS DECIDED.  I MENTION THE TWO REGIMES THAT FILED THE UNANIMOUS
OPINIONS IN THOSE CASES TO INDICATE THE VINTAGE OF THE AUTHORITY WHICH
DECIDED THEM.  THEIR DECISIONS, OF COURSE, DO NOT BIND US, FOR THEY
DEALT WITH MATTERS OF CONSTITUTIONAL INTERPRETATION WHICH ARE ALWAYS
OPEN.  YET NO NEW HISTORY HAS BEEN UNEARTHED TO SHOW THAT THE TAFT AND
THE HUGHES COURTS WERE WRONG ON THE TECHNICAL, BUT VITALLY IMPORTANT,
QUESTION NOW PRESENTED. 

MR. JUSTICE VAN DEVANTER IN EX PARTE BAKELITE MARKED THE LINE BETWEEN
THE COURT OF CLAIMS AND THE COURT OF CUSTOMS AND PATENT APPEALS ON THE
ONE HAND AND THE DISTRICT COURTS AND COURTS OF APPEALS ON THE OTHER: 

"THOSE ESTABLISHED UNDER THE SPECIFIC POWER GIVEN IN SECTION 2 OF
ARTICLE III ARE CALLED CONSTITUTIONAL COURTS.  THEY SHARE IN THE
EXERCISE OF THE JUDICIAL POWER DEFINED IN THAT SECTION, CAN BE INVESTED
WITH NO OTHER JURISDICTION, AND HAVE JUDGES WHO HOLD OFFICE DURING GOOD
BEHAVIOR, WITH NO POWER IN CONGRESS TO PROVIDE OTHERWISE.  ON THE OTHER
HAND, THOSE CREATED BY CONGRESS IN THE EXERTION OF OTHER POWERS ARE
CALLED LEGISLATIVE COURTS.  THEIR FUNCTIONS ALWAYS ARE DIRECTED TO THE
EXECUTION OF ONE OR MORE OF SUCH POWERS AND ARE PRESCRIBED BY CONGRESS
INDEPENDENTLY OF SECTION 2 OF ARTICLE III; AND THEIR JUDGES HOLD FOR
SUCH TERM AS CONGRESS PRESCRIBES, WHETHER IT BE A FIXED PERIOD OF YEARS
OR DURING GOOD BEHAVIOR."  ID., AT 449. 

MY BROTHER HARLAN EMPHASIZES THAT BOTH JUDGE MADDEN OF THE COURT OF
CLAIMS AND JUDGE JACKSON OF THE COURT OF CUSTOMS AND PATENT APPEALS
"ENJOY STATUTORY ASSURANCE OF TENURE AND COMPENSATION"; AND SO THEY DO.
BUT THAT STATEMENT REVEALS ONE BASIC DIFFERENCE BETWEEN AN ARTICLE III
JUDGE AND AN ARTICLE I JUDGE.  THE LATTER'S TENURE IS STATUTORY AND
STATUTORY ONLY; ARTICLE I CONTAINS NO GUARANTEE THAT THE JUDGES OF
ARTICLE I COURTS HAVE LIFE APPOINTMENTS.  NOR DOES IT PROVIDE THAT
THEIR SALARIES MAY NOT BE REDUCED DURING THEIR TERM OF OFFICE.  ON THE
OTHER HAND, THE TENURE OF AN ARTICLE III JUDGE IS DURING "GOOD
BEHAVIOUR"; MOREOVER, ARTICLE III PROVIDES THAT ITS JUDGES SHALL HAVE A
COMPENSATION THAT "SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE IN
OFFICE."  SEE O'MALLEY V. WOODROUGH, 307 U.S. 277.  TO REPEAT, THERE IS
NOT A WORD IN ARTICLE I GIVING ITS COURTS SUCH PROTECTION IN TENURE OR
IN SALARY.  A CONSTITUTIONAL AMENDMENT WOULD BE NECESSARY TO SUPPLY
ARTICLE I JUDGES WITH THE GUARANTEES OF TENURE AND SALARY THAT ARTICLE
III GIVES ITS JUDGES.  THE MAJORITY ATTEMPTS TO EVADE THIS PROBLEM BY
LOOKING TO SO-CALLED "CONGRESSIONAL INTENT" TO FIND THE CREATION OF AN
ARTICLE III COURT.  CONGRESS, HOWEVER, HAS ALWAYS UNDERSTOOD THAT IT
WAS ONLY ESTABLISHING ARTICLE I COURTS WHEN IT CREATED THE COURT OF
CLAIMS AND THE COURT OF CUSTOMS AND PATENT APPEALS.  THE TENURE IT
AFFIXED TO THE JUDGES OF THOSE TRIBUNALS WAS OF NECESSITY STATUTORY
ONLY, AS NO MANDATE OR REQUIREMENT OF ARTICLE I WAS INVOLVED. 

THE IMPORTANCE OF THESE PROVISIONS TO THE INDEPENDENCE OF THE
JUDICIARY NEEDS NO ARGUMENT.  HAMILTON STATED THE ENTIRE CASE IN THE
FEDERALIST NO. 79 (LODGE ED. 1908), PP. 491-493: 

"NEXT TO PERMANENCY IN OFFICE, NOTHING CAN CONTRIBUTE MORE TO THE
INDEPENDENCE OF THE JUDGES THAN A FIXED PROVISION FOR THEIR SUPPORT. 
THE REMARK MADE IN RELATION TO THE PRESIDENT IS EQUALLY APPLICABLE
HERE.  IN THE GENERAL COURSE OF HUMAN NATURE, A POWER OVER A MAN'S
SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL.  AND WE CAN NEVER HOPE TO
SEE REALIZED IN PRACTICE, THE COMPLETE SEPARATION OF THE JUDICIAL FROM
THE LEGISLATIVE POWER, IN ANY SYSTEM WHICH LEAVES THE FORMER DEPENDENT
FOR PECUNIARY RESOURCES ON THE OCCASIONAL GRANTS OF THE LATTER.  THE
ENLIGHTENED FRIENDS TO GOOD GOVERNMENT IN EVERY STATE, HAVE SEEN CAUSE
TO LAMENT THE WANT OF PRECISE AND EXPLICIT PRECAUTIONS IN THE STATE
CONSTITUTIONS ON THIS HEAD.  SOME OF THESE INDEED HAVE DECLARED THAT
PERMANENT SALARIES SHOULD BE ESTABLISHED FOR THE JUDGES; BUT THE
EXPERIMENT HAS IN SOME INSTANCES SHOWN THAT SUCH EXPRESSIONS ARE NOT
SUFFICIENTLY DEFINITE TO PRECLUDE LEGISLATIVE EVASIONS.  SOMETHING
STILL MORE POSITIVE AND UNEQUIVOCAL HAS BEEN EVINCED TO BE REQUISITE. 
THE PLAN OF THE CONVENTION ACCORDINGLY HAS PROVIDED THAT THE JUDGES OF
THE UNITED STATES 'SHALL AT STATED TIMES RECEIVE FOR THEIR SERVICES A
COMPENSATION WHICH SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE IN
OFFICE.' 

"THIS, ALL CIRCUMSTANCES CONSIDERED, IS THE MOST ELIGIBLE PROVISION
THAT COULD HAVE BEEN DEVISED.  IT WILL READILY BE UNDERSTOOD THAT THE
FLUCTUATIONS IN THE VALUE OF MONEY AND IN THE STATE OF SOCIETY RENDERED
A FIXED RATE OF COMPENSATION IN THE CONSTITUTION INADMISSIBLE.  WHAT
MIGHT BE EXTRAVAGANT TO-DAY, MIGHT IN HALF A CENTURY BECOME PENURIOUS
AND INADEQUATE.  IT WAS THEREFORE NECESSARY TO LEAVE IT TO THE
DISCRETION OF THE LEGISLATURE TO VARY ITS PROVISIONS IN CONFORMITY TO
THE VARIATIONS IN CIRCUMSTANCES, YET UNDER SUCH RESTRICTIONS AS TO PUT
IT OUT OF THE POWER OF THAT BODY TO CHANGE THE CONDITION OF THE
INDIVIDUAL FOR THE WORSE.  A MAN MAY THEN BE SURE OF THE GROUND UPON
WHICH HE STANDS, AND CAN NEVER BE DETERRED FROM HIS DUTY BY THE
APPREHENSION OF BEING PLACED IN A LESS ELIGIBLE SITUATION.  THE CLAUSE
WHICH HAS BEEN QUOTED COMBINES BOTH ADVANTAGES.  THE SALARIES OF
JUDICIAL OFFICERS MAY FROM TIME TO TIME BE ALTERED, AS OCCASION SHALL
REQUIRE, YET SO AS NEVER TO LESSEN THE ALLOWANCE WITH WHICH ANY
PARTICULAR JUDGE COMES INTO OFFICE, IN RESPECT TO HIM  ...  . 

"THIS PROVISION FOR THE SUPPORT OF THE JUDGES BEARS EVERY MARK OF
PRUDENCE AND EFFICACY; AND IT MAY BE SAFELY AFFIRMED THAT, TOGETHER
WITH THE PERMANENT TENURE OF THEIR OFFICES, IT AFFORDS A BETTER
PROSPECT OF THEIR INDEPENDENCE THAN IS DISCOVERABLE IN THE
CONSTITUTIONS OF ANY OF THE STATES IN REGARD TO THEIR OWN JUDGES. 

"THE PRECAUTIONS FOR THEIR RESPONSIBILITY ARE COMPRISED IN THE
ARTICLE RESPECTING IMPEACHMENTS.  THEY ARE LIABLE TO BE IMPEACHED FOR
MALCONDUCT BY THE HOUSE OF REPRESENTATIVES, AND TRIED BY THE SENATE;
AND, IF CONVICTED, MAY BE DISMISSED FROM OFFICE, AND DISQUALIFIED FOR
HOLDING ANY OTHER.  THIS IS THE ONLY PROVISION ON THE POINT WHICH IS
CONSISTENT WITH THE NECESSARY INDEPENDENCE OF THE JUDICIAL CHARACTER,
AND IS THE ONLY ONE WHICH WE FIND IN OUR OWN CONSTITUTION IN RESPECT TO
OUR OWN JUDGES." 

WE SHOULD SAY HERE WHAT WAS SAID IN TOTH V. QUARLES, 350 U.S. 11,
17: 

"  ...  THE CONSTITUTION DOES NOT PROVIDE LIFE TENURE FOR THOSE
PERFORMING JUDICIAL FUNCTIONS IN MILITARY TRIALS.  THEY ARE APPOINTED
BY MILITARY COMMANDERS AND MAY BE REMOVED AT WILL.  NOR DOES THE
CONSTITUTION PROTECT THEIR SALARIES AS IT DOES JUDICIAL SALARIES. 
STRIDES HAVE BEEN MADE TOWARD MAKING COURTS-MARTIAL LESS SUBJECT TO THE
WILL OF THE EXECUTIVE DEPARTMENT WHICH APPOINTS, SUPERVISES AND
ULTIMATELY CONTROLS THEM.  BUT FROM THE VERY NATURE OF THINGS, COURTS
HAVE MORE INDEPENDENCE IN PASSING ON THE LIFE AND LIBERTY OF PEOPLE
THAN DO MILITARY TRIBUNALS." 

TENURE THAT IS GUARANTEED BY THE CONSTITUTION IS A BADGE OF A JUDGE
OF AN ARTICLE III COURT.  THE ARGUMENT THAT MERE STATUTORY TENURE IS
SUFFICIENT FOR JUDGES OF ARTICLE III COURTS WAS AUTHORITATIVELY
ANSWERED IN EX PARTE BAKELITE CORP., SUPRA, AT 459-460: 

"  ...  THE ARGUMENT IS FALLACIOUS.  IT MISTAKENLY ASSUMES THAT
WHETHER A COURT IS OF ONE CLASS OR THE OTHER DEPENDS ON THE INTENTION
OF CONGRESS, WHEREAS THE TRUE TEST LIES IN THE POWER UNDER WHICH THE
COURT WAS CREATED AND IN THE JURISDICTION CONFERRED.  NOR HAS THERE
BEEN ANY SETTLED PRACTICE ON THE PART OF CONGRESS WHICH GIVES SPECIAL
SIGNIFICANCE TO THE ABSENCE OR PRESENCE OF A PROVISION RESPECTING THE
TENURE OF JUDGES.  THIS MAY BE ILLUSTRATED BY TWO CITATIONS.  THE SAME
CONGRESS THAT CREATED THE COURT OF CUSTOMS APPEALS MADE PROVISION FOR
FIVE ADDITIONAL CIRCUIT JUDGES AND DECLARED THAT THEY SHOULD HOLD THEIR
OFFICES DURING GOOD BEHAVIOR; AND YET THE STATUS OF THE JUDGES WAS THE
SAME AS IT WOULD HAVE BEEN HAD THAT DECLARATION BEEN OMITTED.  IN
CREATING COURTS FOR SOME OF THE TERRITORIES CONGRESS FAILED TO INCLUDE
A PROVISION FIXING THE TENURE OF THE JUDGES; BUT THE COURTS BECAME
LEGISLATIVE COURTS JUST AS IF SUCH A PROVISION HAD BEEN INCLUDED." 
CONGRESS COULD MAKE MEMBERS OF THE INTERSTATE COMMERCE COMMISSION
LIFETIME APPOINTEES.  YET I SUPPOSE NO ONE WOULD GO SO FAR AS TO SAY
THAT A MEMBER OF THE INTERSTATE COMMERCE COMMISSION COULD BE ASSIGNED
TO SIT ON THE DISTRICT COURT OR ON THE COURT OF APPEALS.  BUT IF ANY
AGENCY MEMBER IS DISQUALIFIED, WHY IS A MEMBER OF ANOTHER ARTICLE I
TRIBUNAL, VIZ., THE COURT OF CLAIMS OR THE COURT OF CUSTOMS AND PATENT
APPEALS, QUALIFIED?  NO DISTINCTION CAN BE DRAWN BASED ON THE FUNCTIONS
PERFORMED BY THE INTERSTATE COMMERCE COMMISSION AND THOSE PERFORMED BY
THE OTHER TWO LEGISLATIVE TRIBUNALS.  IN EACH CASE SOME ADJUDICATORY
FUNCTIONS ARE PERFORMED.  (FN4)  THOUGH THE JUDICIAL FUNCTIONS OF THE
INTERSTATE COMMERCE COMMISSION ARE AS DISTINCT AS THOSE OF THE COURT OF
CLAIMS, THEY NEVERTHELESS DERIVE FROM ARTICLE I; AND THEY ARE FUNCTIONS
THAT CONGRESS CAN EXERCISE DIRECTLY OR DELEGATE TO AN AGENCY.  WILLIAMS
V. UNITED STATES, SUPRA, PP. 567-571.  TO MAKE THE PRESENT DECISION
TURN ON WHETHER THE COURT OF CLAIMS AND THE COURT OF CUSTOMS AND PATENT
APPEALS PERFORM "JUDICIAL" FUNCTIONS IS TO ADOPT A FALSE STANDARD.  THE
MANNER IN WHICH THE MAJORITY REASONS EXPOSES THE FALLACY. 

THE MAJORITY SAYS THAT ONCE THE UNITED STATES CONSENTS TO BE SUED ALL
PROBLEMS OF "JUSTICIABILITY" ARE SATISFIED; AND THAT CONGRESS HAS BROAD
POWERS TO CONVERT "MORAL" OBLIGATIONS INTO "LEGAL" ONES ENFORCEABLE BY
"CONSTITUTIONAL" COURTS.  THE TRUTH IS, I THINK, THAT THE DIMENSIONS OF
ARTICLE III CAN BE ALTERED ONLY BY THE AMENDING PROCESS, NOT BY
LEGISLATION.  CONGRESS CAN CREATE AS RESPECTS CERTAIN CLAIMS A LIMITED
"JUSTICIABILITY."  BUT IF "JUSTICIABILITY" IN THE "CONSTITUTIONAL"
SENSE IS INVOLVED, THEN THERE MUST BE TRIAL BY JURY ASSUMING, AS MY
BROTHER HARLAN DOES, THAT THE CLAIM IS FOR RECOVERY FOR TORTS OR SOME
OTHER COMPENSABLE INJURY.  TO REPEAT, IT DOES NOT ADVANCE ANALYSIS BY
CALLING THE FUNCTION A "JUDICIAL" ONE (SEE POPE V. UNITED STATES, 323
U.S. 1, 12), FOR BOTH ARTICLE COURTS AND ARTICLE III COURTS PERFORM
FUNCTIONS OF THAT CHARACTER.  THE CRUCIAL QUESTION ON THIS PHASE OF THE
PROBLEMS IS THE MANNER IN WHICH THAT JUDICIAL POWER IS TO BE
EXERCISED. 

AS MR. JUSTICE BRANDEIS MADE CLEAR IN TUTUN V. UNITED STATES, 270
U.S. 568, 576-577, AN ADMINISTRATIVE REMEDY MAY BE "JUDICIAL."  THE
QUESTION HERE IS DIFFERENT; IT IS WHETHER THE PROCEDURES UTILIZED BY
THE TRIBUNAL MUST COMPORT WITH THOSE SET FORTH IN THE BILL OF RIGHTS
AND IN THE BODY OF THE CONSTITUTION.  YET WHO WOULD MAINTAIN THAT IN AN
ADMINISTRATIVE ACTION FOR DAMAGES A JURY TRIAL WAS NECESSARY? 

JUDGES OF THE ARTICLE III COURTS WORK BY STANDARDS AND PROCEDURES
WHICH ARE EITHER SPECIFIED IN THE BILL OF RIGHTS OR SUPPLIED BY WELL
KNOWN HISTORIC PRECEDENTS.  ARTICLE III COURTS ARE LAW COURTS, EQUITY
COURTS, AND ADMIRALTY COURTS (FN5) - ALL SPECIFICALLY NAMED IN ARTICLE
III.  THEY SIT TO DETERMINE "CASES" OR "CONTROVERSIES."  BUT ARTICLE I
COURTS HAVE NO SUCH RESTRICTIONS.  THEY NEED NOT BE CONFINED TO "CASES"
OR "CONTROVERSIES" BUT CAN DISPENSE LEGISLATIVE LARGESSE.  SEE UNITED
STATES V. TILLAMOOKS, 329 U.S. 40; 341 U.S. 48.  THEIR DECISIONS MAY
AFFECT VITAL INTERESTS; YET LIKE LEGISLATIVE BODIES, ZONING
COMMISSIONS, AND OTHER ADMINISTRATIVE BODIES THEY NEED NOT OBSERVE THE
SAME STANDARDS OF DUE PROCESS REQUIRED IN TRIALS OF ARTICLE III "CASES"
OR "CONTROVERSIES."  SEE BI-METALLIC CO. V. COLORADO, 239 U.S. 441. 
THAT IS WHAT CHIEF JUSTICE MARSHALL MEANT WHEN HE SAID IN AMERICAN INS.
CO. V. CANTER, 1 PET. 511, 545-546, THAT AN ARTICLE I COURT (IN THAT
CASE A TERRITORIAL COURT) COULD MAKE ITS ADJUDICATIONS WITHOUT REGARD
TO THE LIMITATIONS OF ARTICLE III.  ON THE OTHER HAND, AS THE COURT IN
O'DONOGHUE V. UNITED STATES, SUPRA, AT 546, OBSERVED, ARTICLE III
COURTS COULD NOT BE ENDOWED WITH THE ADMINISTRATIVE AND LEGISLATIVE
POWERS (OR WITH THE POWER TO RENDER ADVISORY OPINIONS) WHICH ARTICLE I
TRIBUNALS OR AGENCIES EXERCISE. 

IN OTHER WORDS, THE QUESTION, APART FROM THE CONSTITUTIONAL GUARANTEE
OF TENURE AND THE PROVISION AGAINST DIMINUTION OF SALARY, CONCERNS THE
FUNCTIONS OF THE PARTICULAR TRIBUNAL.  ARTICLE III COURTS HAVE
PRESCRIBED FOR THEM CONSTITUTIONAL STANDARDS SOME OF WHICH ARE IN THE
BILL OF RIGHTS, WHILE SOME (AS FOR EXAMPLE THOSE CONCERNING BILLS OF
ATTAINDER AND EX POST FACTO LAWS) ARE IN THE BODY OF THE CONSTITUTION
ITSELF.  ARTICLE I COURTS, ON THE OTHER HAND, ARE AGENCIES OF THE
LEGISLATIVE OR EXECUTIVE BRANCH.  THUS WHILE ARTICLE III COURTS OF LAW
MUST SIT WITH A JURY IN SUITS WHERE THE VALUE IN CONTROVERSY EXCEEDS
$20, THE COURT OF CLAIMS - AN ARTICLE I COURT - IS NOT SO CONFINED BY
THE SEVENTH AMENDMENT.  THE CLAIMS WHICH IT HEARS ARE CLAIMS WITH
RESPECT TO WHICH THE GOVERNMENT HAS AGREED TO BE SUED.  AS THE COURT
SAID IN MCELRATH V. UNITED STATES, 102 U.S. 426, 440, SINCE THE
JURISDICTION OF THE COURT OF CLAIMS IS PERMISSIVE ONLY, CONGRESS CAN
PRESCRIBE THE RULES AND THE PROCEDURES TO BE FOLLOWED IN PURSUING
CLAIMS AGAINST THE GOVERNMENT.  LIKEWISE, THE COURT OF CUSTOMS APPEALS
HEARS APPEALS THAT "INCLUDE NOTHING WHICH INHERENTLY OR NECESSARILY
REQUIRES JUDICIAL DETERMINATION, BUT ONLY MATTERS THE DETERMINATION OF
WHICH MAY BE, AND AT TIMES HAS BEEN, COMMITTED EXCLUSIVELY TO EXECUTIVE
OFFICERS."  EX PARTE BAKELITE CORP., SUPRA, AT 458. 

THE JUDICIAL FUNCTIONS EXERCISED BY ARTICLE III COURTS CANNOT BE
PERFORMED BY CONGRESS NOR DELEGATED TO AGENCIES UNDER ITS SUPERVISION
AND CONTROL.  (FN6)  THE BILL OF ATTAINDER IS BANNED BY ART. I, SEC.
9.  IF THERE IS TO BE PUNISHMENT, COURTS (IN THE CONSTITUTIONAL SENSE)
MUST ADMINISTER IT.  AS WE STATED IN UNITED STATES V. LOVETT, 328 U.S.
303, 317: 

"THOSE WHO WROTE OUR CONSTITUTION WELL KNEW THE DANGER INHERENT IN
SPECIAL LEGISLATIVE ACTS WHICH TAKE AWAY THE LIFE, LIBERTY, OR PROPERTY
OF PARTICULAR NAMED PERSONS BECAUSE THE LEGISLATURE THINKS THEM GUILTY
OF CONDUCT WHICH DESERVES PUNISHMENT.  THEY INTENDED TO SAFEGUARD THE
PEOPLE OF THIS COUNTRY FROM PUNISHMENT WITHOUT TRIAL BY DULY
CONSTITUTED COURTS." 

MOREOVER, WHEN AN ARTICLE III COURT OF LAW ACTS, THERE IS A PRECISE
PROCEDURE THAT MUST BE FOLLOWED: 

"AN ACCUSED IN COURT MUST BE TRIED BY AN IMPARTIAL JURY, HAS A RIGHT
TO BE REPRESENTED BY COUNSEL, HE MUST BE CLEARLY INFORMED OF THE CHARGE
AGAINST HIM, THE LAW WHICH HE IS CHARGED WITH VIOLATING MUST HAVE BEEN
PASSED BEFORE HE COMMITTED THE ACT CHARGED, HE MUST BE CONFRONTED BY
THE WITNESSES AGAINST HIM, HE MUST NOT BE COMPELLED TO INCRIMINATE
HIMSELF, HE CANNOT TWICE BE PUT IN JEOPARDY FOR THE SAME OFFENSE, AND
EVEN AFTER CONVICTION NO CRUEL AND UNUSUAL PUNISHMENT CAN BE INFLICTED
UPON HIM."  ID., 317-318. 

ON THE CIVIL SIDE THERE IS NOT ONLY THE RIGHT TO TRIAL BY JURY IN
SUITS AT COMMON LAW WHERE THE VALUE IN CONTROVERSY EXCEEDS $20 BUT
THERE IS ALSO THE MANDATE OF THE SEVENTH AMENDMENT DIRECTING THAT "NO
FACT TRIED BY A JURY, SHALL BE OTHERWISE RE-EXAMINED IN ANY COURT OF
THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW." 

NEITHER OF THESE LIMITATIONS IS GERMANE TO LITIGATION IN THE COURT OF
CLAIMS OR IN THE COURT OF CUSTOMS AND PATENT APPEALS.  THOSE COURTS,
MOREOVER, EXERCISE NO CRIMINAL JURISDICTION, NO ADMIRALTY JURISDICTION,
NO EQUITY JURISDICTION. 

AS NOTED, THE ADVISORY OPINION IS BEYOND THE CAPACITY OF ARTICLE III
COURTS TO RENDER.  MUSKRAT V. UNITED STATES, 219 U.S. 346.  YET IT IS
PART AND PARCEL OF THE FUNCTION OF LEGISLATIVE TRIBUNALS.  (FN7) 

THUS I CANNOT SAY, AS SOME DO, THAT THE DISTINCTION BETWEEN THE TWO
KINDS OF COURTS IS A "MATTER OF LANGUAGE."  (FN8)  THE MAJORITY OVER
AND AGAIN EMPHASIZES THE DECLARATION BY CONGRESS THAT EACH OF THE
COURTS IN QUESTION IS AN ARTICLE III COURT.  IT SEEMS THAT THE MAJORITY
TRIES TO GAIN MOMENTUM FOR ITS DECISION FROM THOSE CONGRESSIONAL
DECLARATIONS.  THIS COURT, HOWEVER, IS THE EXPOSITOR OF THE MEANING OF
THE CONSTITUTION, AS MARBURY V. MADISON, 1 CRANCH 137, HELD; AND A
CONGRESSIONAL ENACTMENT IN THE FIELD OF ARTICLE III IS ENTITLED TO NO
GREATER WEIGHT THAN IN OTHER AREAS.  THE DECLARATIONS BY CONGRESS THAT
THESE LEGISLATIVE TRIBUNALS ARE ARTICLE III COURTS (FN9) WOULD BE
DETERMINATIVE ONLY IF CONGRESS HAD THE POWER TO MODIFY OR ALTER THE
CONCEPTS THAT RADIATE THROUGHOUT ARTICLE III AND THROUGHOUT THOSE
PROVISIONS OF THE BILL OF RIGHTS THAT SPECIFY HOW THE JUDICIAL POWER
GRANTED BY ARTICLE III SHALL BE EXERCISED. 

AN APPOINTMENT IS MADE BY THE PRESIDENT AND CONFIRMED BY THE SENATE
IN LIGHT OF THE DUTIES OF THE PARTICULAR OFFICE.  MEN EMINENTLY
QUALIFIED TO SIT ON ARTICLE I TRIBUNALS OR AGENCIES ARE NOT PICKED OR
CONFIRMED IN LIGHT OF THEIR QUALIFICATIONS TO PRESIDE AT JURY TRIALS OR
TO PROCESS ON APPEAL THE MYRIAD OF CONSTITUTIONAL AND PROCEDURAL
PROBLEMS INVOLVED IN ARTICLE III "CASES" OR "CONTROVERSIES."   A
PRESIDENT WHO SENT A NAME TO THE SENATE FOR THE INTERSTATE COMMERCE
COMMISSION OR FEDERAL TRADE COMMISSION MIGHT NEVER DREAM OF ENTRUSTING
THE NOMINEE WITH THE POWERS OF AN ARTICLE III JUDGE.  THE TASKS ARE SO
DIFFERENT, THE RESPONSIBILITIES AND THE QUALIFICATIONS SO DIVERSE THAT
IT IS DIFFICULT FOR ONE WHO KNOWS THE FEDERAL SYSTEM TO SEE HOW IN THE
WORLD OF PRACTICAL AFFAIRS THESE OFFICES ARE INTERCHANGEABLE. 

IN THE SENATE DEBATE ON THE COURT OF CUSTOMS APPEALS, SENATOR CUMMINS
STATED THAT THE JUDGES WHO WERE TO MAN IT WERE TO BECOME TARIFF
"EXPERTS" WHOSE JUDICIAL BUSINESS WOULD BE "CONFINED TO THE MATTER OF
THE DUTIES ON IMPORTS."  44 CONG. REC. 4185.  SENATOR MCCUMBER, WHO
SPOKE FOR THE COMMITTEE, EMPHASIZED THE TECHNICAL NATURE OF THE WORK OF
THOSE JUDGES AND THE UNIQUE SPECIALIZATION OF THEIR WORK. 

"THE LAW GOVERNING THE DEVELOPMENT OF THE HUMAN INTELLECT IS SUCH
THAT CONSTANT STUDY OF A PARTICULAR QUESTION NECESSARILY BROADENS AND
EXPANDS AND INTENSIFIES AND DEEPENS THE MIND ON THAT PARTICULAR
SUBJECT.  ANY MAN WHO HAS GONE OVER EVEN THE COTTON SCHEDULE WILL
UNDERSTAND HOW DELICATE QUESTIONS WILL ARISE; HOW COMPLEX THOSE
QUESTIONS MUST NECESSARILY BE, AND HOW NECESSARY IT WILL BE TO HAVE
JUDGES WHO WILL POSSESS TECHNICAL KNOWLEDGE UPON THAT SUBJECT; AND A
TECHNICAL KNOWLEDGE CAN ONLY BE OBTAINED BY A CONSTANT DAILY STUDY OF
THOSE QUESTIONS.  FOR THAT SECOND REASON IT WAS THOUGHT BEST TO HAVE A
COURT WHOSE WHOLE ATTENTION, WHOSE WHOLE LIFE WORK, SHOULD BE GIVEN TO
THAT PARTICULAR SUBJECT."  ID., AT 4199. 

COULD THERE BE ANY DOUBT THAT THE LATE JOHN J. PARKER, REJECTED BY
THE SENATE FOR THIS COURT, WOULD HAVE BEEN CONFIRMED FOR ONE OF THESE
ARTICLE I COURTS? 

IT IS SAID THAT CONGRESS COULD SEPARATE LAW AND EQUITY AND CREATE
FEDERAL JUDGES WHO, THOUGH ARTICLE III JUDGES, SIT ENTIRELY ON THE
EQUITY SIDE.  IF CONGRESS CAN DO THAT, IT IS SAID THAT CONGRESS CAN
DIVIDE UP ALL JUDICIAL POWER AS IT CHOOSES AND BY MAKING TENURE
PERMANENT ALLOW JUDGES TO BE ASSIGNED FROM AN ARTICLE I TO AN ARTICLE
III COURT.  THE FACT THAT ARTICLE III JUDICIAL POWER MAY BE SO DIVIDED
AS TO PRODUCE JUDGES WITH NO EXPERIENCE IN THE TRIAL OF JURY CASES OR
IN THE REVIEW OF THEM ON APPEAL IS NO EXCUSE FOR ALLOWING LEGISLATIVE
JUDGES TO BE IMPORTED INTO THE IMPORTANT FIELDS THAT ARTICLE III
PRESERVES AND THAT ARE PARTLY SAFEGUARDED BY THE BILL OF RIGHTS AND
PARTLY REPRESENTED BY ANCIENT ADMIRALTY PRACTICE (FN10) AND EQUITY
PROCEDURES.  FEDERAL JUDGES NAMED TO ARTICLE III COURTS ARE PICKED IN
LIGHT OF THE FUNCTIONS ENTRUSTED TO THEM.  NO ONE KNOWS WHETHER A
PRESIDENT WOULD HAVE APPOINTED TO AN ARTICLE III COURT A MAN HE NAMED
TO AN ARTICLE I COURT. 

MY VIEW IS THAT WE SUBTLY UNDERMINE THE CONSTITUTIONAL SYSTEM WHEN WE
TREAT FEDERAL JUDGES AS FUNGIBLE.  IF MEMBERS OF THE COURT OF CLAIMS
AND OF THE COURT OF CUSTOMS AND PATENT APPEALS CAN SIT ON LIFE-AND
DEATH CASES IN ARTICLE III COURTS, SO CAN A MEMBER OF ANY
ADMINISTRATIVE AGENCY WHO HAS A STATUTORY TENURE THAT FUTURE JUDGES
SITTING IN THIS COURT BY SOME MYSTERIOUS MANNER MAY CHANGE TO
CONSTITUTIONAL TENURE.  WITH ALL DEFERENCE, THIS SEEMS TO ME TO BE A
LIGHT-HEARTED TREATMENT OF ARTICLE III FUNCTIONS.  (FN11)  MEN OF
HIGHEST QUALITY CHOSEN AS ARTICLE I JUDGES MIGHT NEVER PASS MUSTER FOR
ARTICLE III COURTS WHEN TESTED BY THEIR RECORD OF TOLERANCE FOR
MINORITIES AND FOR THEIR RESPECT OF THE BILL OF RIGHTS - NEITHER OF
WHICH IS AS CRUCIAL TO THE PERFORMANCE OF THE DUTIES OF THOSE WHO SIT
IN ARTICLE I COURTS AS IT IS TO THE DUTIES OF ARTICLE III JUDGES. 

IN SUM, JUDGES WHO DO NOT PERFORM ARTICLE III FUNCTIONS, WHO DO NOT
ENJOY CONSTITUTIONAL TENURE AND WHOSE SALARIES ARE NOT CONSTITUTIONALLY
PROTECTED AGAINST DIMINUTION DURING THEIR TERM OF OFFICE CANNOT BE
ARTICLE III JUDGES. 

JUDGES WHO PERFORM "JUDICIAL" FUNCTIONS ON ARTICLE I COURTS DO NOT
ADJUDICATE "CASES" OR "CONTROVERSIES" IN THE SENSE OF ARTICLE III. 
THEY ARE NOT BOUND BY THE REQUIREMENTS OF THE SEVENTH AMENDMENT
CONCERNING TRIAL BY JURY. 

JUDGES WHO SIT ON ARTICLE I COURTS ARE CHOSEN FOR ADMINISTRATIVE OR
ALLIED SKILLS, NOT FOR THEIR QUALIFICATIONS TO SIT IN CASES INVOLVING
THE VAST INTERESTS OF LIFE, LIBERTY, OR PROPERTY FOR WHOSE PROTECTION
THE BILL OF RIGHTS AND THE OTHER GUARANTEES IN THE MAIN BODY OF THE
CONSTITUTION, INCLUDING THE BAN ON BILLS OF ATTAINDER AND EX POST FACTO
LAWS, WERE DESIGNED.  JUDGES WHO MIGHT BE CONFIRMED FOR AN ARTICLE I
COURT MIGHT NEVER PASS MUSTER FOR THE ONEROUS AND LIFE-OR-DEATH DUTIES
OF ARTICLE III JUDGES. 

FOR THESE REASONS I WOULD REVERSE THE JUDGMENTS BELOW. 

FN1  THE DISTRICT COURT OF THE DISTRICT OF COLUMBIA, LIKE THE
"INFERIOR COURTS" ESTABLISHED BY CONGRESS UNDER ART. III, SEC. 1, OF
THE CONSTITUTION, IS AN ARTICLE III COURT (O'DONOGHUE V. UNITED STATES,
289 U.S. 516), EVEN THOUGH IT POSSESSES POWERS THAT ARTICLE III COURTS
COULD NOT EXERCISE.  CONGRESS, ACTING UNDER ITS PLENARY POWER GRANTED
BY ART. I, SEC. 8, TO LEGISLATE FOR THE DISTRICT OF COLUMBIA, HAS FROM
TIME TO TIME VESTED IN THE COURTS OF THE DISTRICT ADMINISTRATIVE AND
EVEN LEGISLATIVE POWERS.  SEE, E.G., KELLER V. POTOMAC ELECTRIC CO.,
261 U.S. 428, 440-443 (REVIEW OF RATE MAKING); POSTUM CEREAL CO. V.
CALIFORNIA FIG NUT CO., 272 U.S. 693, 698-701 (PATENT AND TRADEMARK
APPEALS); FEDERAL RADIO COMM'N V. GENERAL ELECTRIC CO., 281 U.S. 464,
467-468 (REVIEW OF RADIO STATION LICENSING; CF. RADIO COMM'N V. NELSON
BROS. CO., 289 U.S. 266, 274-278).  CONGRESS HAS ALSO AUTHORIZED
DISTRICT COURT JUDGES TO APPOINT MEMBERS OF THE BOARD OF EDUCATION. 
D.C. CODE, SEC. 31-101. 

IN O'DONOGHUE V. UNITED STATES, SUPRA, AT 545, THE COURT SAID: 

"THE FACT THAT CONGRESS, UNDER ANOTHER AND PLENARY GRANT OF POWER,
HAS CONFERRED UPON THESE COURTS JURISDICTION OVER NON-FEDERAL CAUSES OF
ACTION, OR OVER QUASI-JUDICIAL OR ADMINISTRATIVE MATTERS, DOES NOT
AFFECT THE QUESTION.  IN DEALING WITH THE DISTRICT, CONGRESS POSSESSES
THE POWERS WHICH BELONG TO IT IN RESPECT OF TERRITORY WITHIN A STATE,
AND ALSO THE POWERS OF A STATE." 

THE EIGHTEENTH-CENTURY COURTS IN THIS COUNTRY PERFORMED MANY
ADMINISTRATIVE FUNCTIONS.  SEE POUND, ORGANIZATION OF COURTS (1940),
PP. 88-89.  THE PROPRIETY OF THE UNION OF LEGISLATIVE AND JUDICIAL
POWERS IN A STATE COURT WAS ASSUMED IN PRENTIS V. ATLANTIC COAST LINE,
211 U.S. 210. 

FN2  "LEGISLATIVE COURTS ALSO MAY BE CREATED AS SPECIAL TRIBUNALS TO
EXAMINE AND DETERMINE VARIOUS MATTERS, ARISING BETWEEN THE GOVERNMENT
AND OTHERS, WHICH FROM THEIR NATURE DO NOT REQUIRE JUDICIAL
DETERMINATION AND YET ARE SUSCEPTIBLE TO IT.  THE MODE OF DETERMINING
MATTERS OF THIS CLASS IS COMPLETELY WITHIN CONGRESSIONAL CONTROL. 
CONGRESS MAY RESERVE TO ITSELF THE POWER TO DECIDE, MAY DELEGATE THAT
POWER TO EXECUTIVE OFFICERS, OR MAY COMMIT IT TO JUDICIAL TRIBUNALS. 

"CONSPICUOUS AMONG SUCH MATTERS ARE CLAIMS AGAINST THE UNITED
STATES.  THESE MAY ARISE IN MANY WAYS AND MAY BE FOR MONEY, LANDS OR
OTHER THINGS.  THEY ALL ADMIT OF LEGISLATIVE OR EXECUTIVE
DETERMINATION, AND YET FROM THEIR NATURE ARE SUSCEPTIBLE OF
DETERMINATION BY COURTS; BUT NO COURT CAN HAVE COGNIZANCE OF THEM
EXCEPT AS CONGRESS MAKES SPECIFIC PROVISION THEREFOR.  NOR DO CLAIMANTS
HAVE ANY RIGHT TO SUE ON THEM UNLESS CONGRESS CONSENTS; AND CONGRESS
MAY ATTACH TO ITS CONSENT SUCH CONDITIONS AS IT DEEMS PROPER, EVEN TO
REQUIRING THAT THE SUITS BE BROUGHT IN A LEGISLATIVE COURT SPECIALLY
CREATED TO CONSIDER THEM. 

"THE COURT OF CLAIMS IS SUCH A COURT.  IT WAS CREATED, AND HAS BEEN
MAINTAINED, AS A SPECIAL TRIBUNAL TO EXAMINE AND DETERMINE CLAIMS FOR
MONEY AGAINST THE UNITED STATES.  THIS IS A FUNCTION WHICH BELONGS
PRIMARILY TO CONGRESS AS AN INCIDENT OF ITS POWER TO PAY THE DEBTS OF
THE UNITED STATES.  BUT THE FUNCTION IS ONE WHICH CONGRESS HAS A
DISCRETION EITHER TO EXERCISE DIRECTLY OR TO DELEGATE TO OTHER
AGENCIES."  EX PARTE BAKELITE CORP., 279 U.S. 438, 451-452. 

FN3  "THE COURT OF CUSTOMS APPEALS WAS CREATED BY CONGRESS IN VIRTUE
OF ITS POWER TO LAY AND COLLECT DUTIES ON IMPORTS AND TO ADOPT ANY
APPROPRIATE MEANS OF CARRYING THAT POWER INTO EXECUTION.  THE FULL
PROVINCE OF THE COURT UNDER THE ACT CREATING IT IS THAT OF DETERMINING
MATTERS ARISING BETWEEN THE GOVERNMENT AND OTHERS IN THE EXECUTIVE
ADMINISTRATION AND APPLICATION OF THE CUSTOMS LAWS.  THESE MATTERS ARE
BROUGHT BEFORE IT BY APPEALS FROM DECISIONS OF THE CUSTOMS COURT,
FORMERLY CALLED THE BOARD OF GENERAL APPRAISERS.  THE APPEALS INCLUDE
NOTHING WHICH INHERENTLY OR NECESSARILY REQUIRES JUDICIAL
DETERMINATION, BUT ONLY MATTERS THE DETERMINATION OF WHICH MAY BE, AND
AT TIMES HAS BEEN, COMMITTED EXCLUSIVELY TO EXECUTIVE OFFICERS.  TRUE,
THE PROVISIONS OF THE CUSTOMS LAWS REQUIRING DUTIES TO BE PAID AND
TURNED INTO THE TREASURY PROMPTLY, WITHOUT AWAITING DISPOSAL OF
PROTESTS AGAINST RULINGS OF APPRAISERS AND COLLECTORS, OPERATE IN MANY
INSTANCES TO CONVERT THE PROTESTS INTO APPLICATIONS TO REFUND PART OR
ALL OF THE MONEY PAID; BUT THIS DOES NOT MAKE THE MATTERS INVOLVED IN
THE PROTESTS ANY THE LESS SUSCEPTIBLE OF DETERMINATION BY EXECUTIVE
OFFICERS.  IN FACT THEIR FINAL DETERMINATION HAS BEEN AT TIMES CONFIDED
TO THE SECRETARY OF THE TREASURY, WITH NO RECOURSE TO JUDICIAL
PROCEEDINGS."  EX PARTE BAKELITE CORP., SUPRA, NOTE 2, AT 458. 

FN4  THE INTERSTATE COMMERCE COMMISSION HAS LONG ENTERED REPARATION
ORDERS DIRECTING CARRIERS TO PAY SHIPPERS SPECIFIED SUMS OF MONEY PLUS
INTEREST FOR EXCESSIVE AND UNREASONABLE RATES.  SEE MEEKER V. LEHIGH
VALLEY R. CO., 236 U.S. 434; II SHARFMAN, THE INTERSTATE COMMERCE
COMMISSION (1931), PP. 387-388. 

FN5  AS RESPECTS ADMIRALTY, CHIEF JUSTICE MARSHALL SAID IN AMERICAN
INS. CO. V. CANTER, 1 PET. 511, 545: 

"IF WE HAVE RECOURSE TO THAT PURE FOUNTAIN FROM WHICH ALL THE
JURISDICTION OF THE FEDERAL COURTS IS DERIVED, WE FIND LANGUAGE
EMPLOYED WHICH CANNOT WELL BE MISUNDERSTOOD.  THE CONSTITUTION
DECLARES, THAT 'THE JUDICIAL POWER SHALL EXTEND TO ALL CASES IN LAW AND
EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES,
AND TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY; TO
ALL CASES AFFECTING AMBASSADORS, OR OTHER PUBLIC MINISTERS, AND
CONSULS; TO ALL CASES OF ADMIRALTY AND MARITIME JURISDICTION.' 

"THE CONSTITUTION CERTAINLY CONTEMPLATES THESE AS THREE DISTINCT
CLASSES OF CASES  ...  ." 

FN6  THE LIMITATIONS ON ARTICLE III COURTS THAT DISTINGUISH THEM FROM
ARTICLE I COURTS WERE STATED BY CHIEF JUSTICE VINSON IN NATIONAL
INSURANCE CO. V. TIDEWATER CO., 337 U.S. 582, 629-630, IN WORDS THAT
HAVE, I THINK, GENERAL ACCEPTANCE, THOUGH ON THE PRECISE ISSUE HE WROTE
IN DISSENT: 

"IN KELLER V. POTOMAC ELECTRIC CO., 261 U.S. 428 (1923), WHERE THIS
COURT HAD BEFORE IT AN ACT UNDER WHICH THE COURTS OF THE DISTRICT OF
COLUMBIA WERE GIVEN REVISORY POWER OVER RATES SET BY THE PUBLIC
UTILITIES COMMISSION OF THE DISTRICT, THE APPELLEE SOUGHT TO SUSTAIN
THE APPELLATE JURISDICTION GIVEN THIS COURT BY THE ACT ON THE BASIS
THAT 'ALTHOUGH ART. III OF THE CONSTITUTION LIMITS THE JURISDICTION OF
THE FEDERAL COURTS, THIS LIMITATION IS SUBJECT TO THE POWER OF CONGRESS
TO ENLARGE THE JURISDICTION, WHERE SUCH ENLARGEMENT MAY REASONABLY BE
REQUIRED TO ENABLE CONGRESS TO EXERCISE THE EXPRESS POWERS CONFERRED
UPON IT BY THE CONSTITUTION.'  261 U.S. AT 435.  THERE, AS HERE, THE
POWER RELIED UPON WAS THAT GIVEN CONGRESS TO EXERCISE EXCLUSIVE
JURISDICTION OVER THE DISTRICT OF COLUMBIA, AND TO MAKE ALL LAWS
NECESSARY AND PROPER TO CARRY SUCH POWERS INTO EFFECT.  BUT THIS COURT
CLEARLY AND UNEQUIVOCALLY REJECTED THE CONTENTION THAT CONGRESS COULD
THUS EXTEND THE JURISDICTION OF CONSTITUTIONAL COURTS, CITING THE NOTE
TO HAYBURN'S CASE, 2 DALL.  409, 410 (1792); UNITED STATES V. FERREIRA,
13 HOW.  40, NOTE, P. 52 (1851), AND GORDON V. UNITED STATES, 117 U.S.
697 (1864).  THESE AND OTHER DECISIONS OF THIS COURT CLEARLY CONDITION
THE POWER OF A CONSTITUTIONAL COURT TO TAKE COGNIZANCE OF ANY CAUSE
UPON THE EXISTENCE OF A SUIT INSTITUTED ACCORDING TO THE REGULAR COURSE
OF JUDICIAL PROCEDURE, MARBURY V. MADISON, 1 CRANCH 137 (1803), THE
POWER TO PRONOUNCE A JUDGMENT AND CARRY IT INTO EFFECT BETWEEN PERSONS
AND PARTIES WHO BRING A CASE BEFORE IT FOR DECISION, MUSKRAT V. UNITED
STATES, 219 U.S. 346 (1911); GORDON V. UNITED STATES, SUPRA, THE
ABSENCE OF REVISORY OR APPELLATE POWER IN ANY OTHER BRANCH OF
GOVERNMENT, HAYBURN'S CASE, SUPRA; UNITED STATES V. FERREIRA, SUPRA,
AND THE ABSENCE OF ADMINISTRATIVE OR LEGISLATIVE ISSUES OR
CONTROVERSIES, KELLER V. POTOMAC ELECTRIC CO., SUPRA; POSTUM CEREAL CO.
V. CALIFORNIA FIG NUT CO., 272 U.S. 693 (1927)." 

FN7  SEE 28 U.S.C. SEC. 1492, GIVING THE COURT OF CLAIMS POWER "TO
REPORT TO EITHER HOUSE OF CONGRESS ON ANY BILL REFERRED TO THE COURT BY
SUCH HOUSE."  AND SEE 28 U.S.C. SECS. 2509, 2510.  28 U.S.C. SEC. 1542
GAVE THE COURT OF CUSTOMS AND PATENT APPEALS A KIND OF ADMINISTRATIVE
REVIEW OVER CERTAIN DECISIONS OF THE PATENT OFFICE.  AND SEE NOTE 2,
SUPRA. 

FN8  SEE H.R. REP. NO. 2348, 84TH CONG., 2D SESS., P. 3. 

FN9  SEE ACT OF JULY 28, 1953, 67 STAT. 226 (COURT OF CLAIMS); ACT OF
JULY 14, 1956, 70 STAT. 532 (CUSTOMS COURT); ACT OF AUGUST 25, 1958, 72
STAT. 848 (COURT OF CUSTOMS AND PATENT APPEALS). 

FN10  SEE THE LOTTAWANNA, 21 WALL.  558, 575; THE OSCEOLA, 189 U.S.
158. 

FN11  THE COURT DOES GREAT MISCHIEF IN TODAY'S OPINIONS.  THE OPINION
OF MY BROTHER HARLAN STIRS A HOST OF PROBLEMS THAT NEED NOT BE OPENED. 
WHAT IS DONE WILL, I FEAR, PLAGUE US FOR YEARS. 

FIRST, THAT OPINION CITES WITH APPROVAL EX PARTE MCCARDLE, 7 WALL. 
506, IN WHICH CONGRESS WITHDREW JURISDICTION OF THIS COURT TO REVIEW A
HABEAS CORPUS CASE THAT WAS SUB JUDICE, AND THEN APPARENTLY DRAWS A
DISTINCTION BETWEEN THAT CASE AND UNITED STATES V. KLEIN, 13 WALL. 
128, WHERE SUCH WITHDRAWAL WAS NOT PERMITTED IN A PROPERTY CLAIM. 
THERE IS A SERIOUS QUESTION WHETHER THE MCCARDLE CASE COULD COMMAND A
MAJORITY VIEW TODAY.  CERTAINLY THE DISTINCTION BETWEEN LIBERTY AND
PROPERTY (WHICH EMANATES FROM THIS PORTION OF MY BROTHER HARLAN'S
OPINION) HAS NO VITALITY EVEN IN TERMS OF THE DUE PROCESS CLAUSE. 

SECOND, POSTUM CEREAL CO. V. CALIFORNIA FIG NUT CO., 272 U.S. 693, IS
APPARENTLY OVERRULED.  WHY THIS IS DONE IS NOT APPARENT.  THAT CASE
RULED ON THE QUESTION WHETHER A RULING ON A PATENT OFFICE DETERMINATION
WAS "JUDICIAL."  WHETHER IT WAS OR NOT IS IMMATERIAL BECAUSE, AS
ALREADY NOTED, ARTICLE I COURTS, LIKE ARTICLE III COURTS, EXERCISE
"JUDICIAL" POWER.  THE ONLY RELEVANT QUESTION HERE IS WHETHER A COURT
THAT NEED NOT FOLLOW ARTICLE III PROCEDURES IS NONETHELESS AN ARTICLE
III COURT. 

THIRD, IT IS IMPLIED THAT CONGRESS COULD VEST THE LOWER FEDERAL
COURTS WITH THE POWER TO RENDER ADVISORY OPINIONS.  THE CHARACTER OF
THE DISTRICT COURT IN THE DISTRICT OF COLUMBIA HAS BEEN DIFFERENTIATED
FROM THE OTHER DISTRICT COURTS BY O'DONOGHUE V. UNITED STATES, SUPRA,
IN THAT THE FORMER IS, IN PART, AN AGENCY OF CONGRESS TO PERFORM
ARTICLE I POWERS.  HOW CONGRESS COULD TRANSFORM REGULAR ARTICLE III
COURTS INTO ARTICLE I COURTS IS A MYSTERY.  CERTAINLY WE SHOULD NOT
DECIDE SUCH AN IMPORTANT ISSUE SO CASUALLY AND SO UNNECESSARILY. 
..END :











CENTRAL RAILROAD COMPANY OF PENNSYLVANIA V. PENNSYLVANIA 370 U.S. 607 


NO. 400.  ARGUED MARCH 20, 1962 - DECIDED JUNE 25, 1962 - 403 PA. 419,
169 A.2D 878, AFFIRMED IN PART AND REVERSED IN PART. 


APPELLANT IS A PENNSYLVANIA CORPORATION AUTHORIZED TO OPERATE A
RAILROAD ONLY WITHIN PENNSYLVANIA AND HAVING NO TRACKS OUTSIDE OF
PENNSYLVANIA.  IT OWNED FREIGHT CARS WHICH WERE USED IN ORDINARY
TRANSPORT OPERATIONS IN THREE WAYS:  (1) BY APPELLANT ON ITS OWN TRACKS
IN PENNSYLVANIA; (2) BY A NEW JERSEY RAILROAD ON FIXED ROUTES AND
REGULAR SCHEDULES OVER THAT RAILROAD'S TRACKS IN NEW JERSEY; AND (3) BY
MANY OTHER RAILROADS ON THEIR OWN LINES IN VARIOUS PARTS OF THE
COUNTRY.  PENNSYLVANIA LEVIED AN ANNUAL PROPERTY TAX ON THE TOTAL VALUE
OF ALL FREIGHT CARS OWNED BY APPELLANT; AND APPELLANT CHALLENGED ITS
RIGHT TO DO SO UNDER THE COMMERCE CLAUSE AND THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.  HELD: 

1.  APPELLANT COULD NOT AVOID IMPOSITION OF PENNSYLVANIA'S TAX ON THE
FULL VALUE OF ITS FREIGHT CARS MERELY BY PROVING THAT SOME DETERMINABLE
FRACTION OF THEM WERE ABSENT FROM THE STATE FOR PART OF THE TAX YEAR. 
IT MUST SUSTAIN THE BURDEN OR PROVING THAT SOME DETERMINABLE PORTION OF
THEM MAY BE SIMILARLY TAXED IN ANOTHER STATE.  PP. 611-613. 

2.  APPELLANT'S FREIGHT CARS THAT HAD BEEN RUN HABITUALLY ON FIXED
ROUTES AND REGULAR SCHEDULES OVER THE LINES OF THE NEW JERSEY RAILROAD
IN NEW JERSEY WERE SUBJECT TO THE IMPOSITION OF AN APPORTIONED AD
VALOREM TAX BY THE STATE OF NEW JERSEY; AND, CONSEQUENTLY, THE DAILY
AVERAGE OF APPELLANT'S FREIGHT CARS LOCATED ON THE NEW JERSEY
RAILROAD'S LINES DURING THE TAX YEAR COULD NOT CONSTITUTIONALLY BE
INCLUDED IN THE COMPUTATION OF THIS PENNSYLVANIA TAX.  PP. 613-614. 

3.  ON THE RECORD IN THIS CASE, PENNSYLVANIA COULD CONSTITUTIONALLY
TAX, AT FULL VALUE, THE REMAINDER OF APPELLANT'S FLEET OF FREIGHT CARS,
INCLUDING THOSE USED BY OTHER RAILROADS IN OTHER STATES, SINCE
APPELLANT HAS FAILED TO SUSTAIN ITS BURDEN OF PROVING THAT A TAX SITUS
HAD BEEN ESTABLISHED ELSEWHERE WITH RESPECT TO SUCH CARS.  PP. 614
617. 

4.  FOR THE PURPOSES OF THIS TAX, PENNSYLVANIA COULD DIFFERENTIATE
BETWEEN RAILROADS HAVING TRACKS WHICH LAY ONLY WITHIN ITS BORDERS AND
THOSE WHOSE TRACKS WERE LOCATED BOTH WITHIN AND WITHOUT THE STATE,
SINCE SUCH A CLASSIFICATION WOULD BE REASONABLE AND WOULD NOT VIOLATE
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 617-618. 

CENTRAL RAILROAD COMPANY OF PENNSYLVANIA V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE MUST DECIDE WHETHER THE COMMONWEALTH OF PENNSYLVANIA
MAY, CONSISTENTLY WITH THE COMMERCE CLAUSE AND THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES, IMPOSE AN ANNUAL PROPERTY TAX ON THE
TOTAL VALUE OF FREIGHT CARS OWNED BY THE APPELLANT, A PENNSYLVANIA
CORPORATION, DESPITE THE FACT THAT A CONSIDERABLE NUMBER OF SUCH CARS
SPEND A SUBSTANTIAL PORTION OF THE TAX YEAR ON THE LINES OF OTHER
RAILROADS LOCATED OUTSIDE THE STATE.  THE SUPREME COURT OF PENNSYLVANIA
UPHELD THE APPLICATION OF THE STATE'S CAPITAL STOCK TAX, PURDON'S PA.
STAT. ANN., 1949, TIT. 72, SECS. 1871, 1901, TO THE FULL VALUE OF ALL
APPELLANT'S FREIGHT CARS.  (FN1)  403 PA. 419, 169 A.2D 878.  WE
POSTPONED CONSIDERATION OF THE QUESTION OF JURISDICTION TO THE HEARING
ON THE MERITS, 368 U.S. 912, AND NOW FIND THAT THE APPEAL IS
APPROPRIATELY BEFORE US UNDER 28 U.S.C. SEC. 1257(2).  E.G., STANDARD
OIL CO. V. PECK, 342 U.S. 382. 

WE TAKE THE FACTS PERTINENT TO DECISION FROM A STIPULATION SUBMITTED
BY THE PARTIES TO THE TRIAL COURT.  THE APPELLANT IS A PENNSYLVANIA
CORPORATION AUTHORIZED TO OPERATE A RAILROAD ONLY WITHIN THE STATE.  IT
HAS NOT BEEN LICENSED TO DO BUSINESS ELSEWHERE.  THE COMPANY'S TRACK
RUNS FROM THE ANTHRACITE COAL REGION IN PENNSYLVANIA TO THE
PENNSYLVANIA-NEW JERSEY BORDER, AT EASTON, WHERE IT CONNECTS WITH THE
LINES OF THE CENTRAL RAILROAD COMPANY OF NEW JERSEY (HEREINAFTER CNJ),
A NEW JERSEY CORPORATION WHICH OWNS ALL THE OUTSTANDING SHARES OF
APPELLANT'S STOCK. 

IN 1951, THE YEAR FOR WHICH THE TAX WAS ASSESSED, THE APPELLANT OWNED
3,074 FREIGHT CARS WHICH WERE PUT TO USE IN ORDINARY TRANSPORT
OPERATIONS IN THREE WAYS:  (1) BY THE APPELLANT ON ITS OWN TRACKS; (2)
BY CNJ ON THAT COMPANY'S TRACKS IN NEW JERSEY; (3) BY OTHER
UNAFFILIATED RAILROADS ON THEIR OWN LINES IN VARIOUS PARTS OF THE
COUNTRY.  CNJ'S USE OF APPELLANT'S CARS WAS PURSUANT TO OPERATING
AGREEMENTS UNDER WHICH CNJ WAS OBLIGED TO PAY A DAILY RENTAL EQUAL TO
THE THEN-EFFECTIVE RATE PRESCRIBED BY THE ASSOCIATION OF AMERICAN
RAILROADS.  IN ORDER TO FACILITATE INTERSTATE TRANSPORTATION BY THE
INTERCHANGE OF EQUIPMENT AMONG CARRIERS, AS PRESCRIBED BY 49 U.S.C.
SEC. 1, PARS. (4), (10), (12), THE MEMBERS OF THE ASSOCIATION,
INCLUDING THE APPELLANT, HAD ENTERED INTO A SEPARATE "CAR SERVICE AND
PER DIEM AGREEMENT" UNDER WHICH EACH SUBSCRIBER WAS AUTHORIZED TO USE
ON ITS OWN LINES THE AVAILABLE FREIGHT CARS OF OTHER SUBSCRIBERS AT THE
ESTABLISHED PER DIEM RENTAL.  CONSEQUENTLY, DURING 1951 MANY OF THE
APPELLANT'S FREIGHT CARS WERE ALSO USED BY OTHER RAILROADS ON LINES
OUTSIDE PENNSYLVANIA.  APPELLANT CONTENDED IN THE STATE COURTS, AS IT
DOES HERE, THAT IN COMPUTING ITS PENNSYLVANIA CAPITAL STOCK TAX, WHICH
IS MEASURED BY THE VALUE OF SUCH PROPERTY AS IS NOT EXEMPT FROM
TAXATION (NOTE 1, SUPRA), IT WAS CONSTITUTIONALLY ENTITLED TO DEDUCT
FROM THE VALUE OF ITS TAXABLE ASSETS A PROPORTIONAL SHARE REFLECTING
THE TIME SPENT BY ITS FREIGHT CARS OUTSIDE PENNSYLVANIA.  IN SUPPORT OF
THIS CLAIM APPELLANT OFFERED A STATISTICAL SUMMARY OF THE USE OF ITS
FREIGHT CARS DURING 1951, SEEKING TO PROVE THAT A DAILY AVERAGE OF MORE
THAN 1,659 OF ITS 3,074 CARS WERE LOCATED ON THE LINES OF RAILROADS
(INCLUDING CNJ) WHICH OWNED NO TRACK IN PENNSYLVANIA.  (FN2) 

IT ALSO CLAIMED THAT A DAILY AVERAGE OF APPROXIMATELY 1,056 OTHER
CARS HAD BEEN USED BY RAILROADS HAVING LINES BOTH WITHIN AND WITHOUT
PENNSYLVANIA.  AS TO SUCH CARS, APPELLANT SOUGHT TO ALLOCATE TO
PENNSYLVANIA ONLY SUCH PORTIONS OF THEIR VALUE AS THE COMBINED RATIO OF
ROAD MILES OF EACH USER-RAILROAD'S TRACKS WITHIN PENNSYLVANIA BORE TO
ITS TOTAL ROAD MILEAGE THROUGHOUT THE UNITED STATES.  (FN3) 

THESE CLAIMS WERE DISALLOWED BY THE PENNSYLVANIA BOARD OF FINANCE AND
REVENUE, BY THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, AND BY THE
SUPREME COURT OF PENNSYLVANIA.  (FN4)  THE STATE COURTS RELIED
PRIMARILY ON THIS COURT'S DECISION IN NEW YORK CENTRAL R. CO. V.
MILLER, 202 U.S. 584, WHICH UPHELD THE CONSTITUTIONALITY OF A
DOMICILIARY STATE'S AD VALOREM PROPERTY TAX LEVIED UPON THE FULL VALUE
OF A RAILROAD'S ROLLING STOCK, ALBEIT "SOME CONSIDERABLE PROPORTION OF
THE RAILROAD'S  ... CARS ALWAYS  ...  WAS ABSENT FROM THE STATE."  ID.,
AT 595. 

                   I. 

SINCE MILLER THIS COURT HAS DECIDED NUMEROUS CASES TOUCHING ON THE
INTRICATE PROBLEMS OF ACCOMMODATING, UNDER THE DUE PROCESS AND COMMERCE
CLAUSES, THE TAXING POWERS OF DOMICILIARY AND OTHER STATES WITH RESPECT
TO THE INSTRUMENTALITIES OF INTERSTATE COMMERCE.  (FN5)  NONE OF THESE
DECISIONS HAS WEAKENED THE PIVOTAL HOLDING IN MILLER - THAT A RAILROAD
OR OTHER TAXPAYER OWNING ROLLING STOCK CANNOT AVOID THE IMPOSITION OF
ITS DOMICILE'S PROPERTY TAX ON THE FULL VALUE OF ITS ASSETS MERELY BY
PROVING THAT SOME DETERMINABLE FRACTION OF ITS PROPERTY WAS ABSENT FROM
THE STATE FOR PART OF THE TAX YEAR.  THIS COURT HAS CONSISTENTLY HELD
THAT THE STATE OF DOMICILE RETAINS JURISDICTION TO TAX TANGIBLE
PERSONAL PROPERTY WHICH HAS "NOT ACQUIRED AN ACTUAL SITUS ELSEWHERE." 
JOHNSON OIL REFINING CO. V. OKLAHOMA, 290 U.S. 158, 161. 

THIS IS BECAUSE A STATE CASTS NO FORBIDDEN BURDEN UPON INTERSTATE
COMMERCE BY SUBJECTING ITS OWN CORPORATIONS, THOUGH THEY BE ENGAGED IN
INTERSTATE TRANSPORT, TO NON-DISCRIMINATORY PROPERTY TAXES.  IT IS ONLY
"MULTIPLE TAXATION OF INTERSTATE OPERATIONS," STANDARD OIL CO. V. PECK,
342 U.S. 382, 385, THAT OFFENDS THE COMMERCE CLAUSE.  AND OBVIOUSLY
MULTIPLE TAXATION IS POSSIBLE ONLY IF THERE EXISTS SOME JURISDICTION,
IN ADDITION TO THE DOMICILE OF THE TAXPAYER, WHICH MAY CONSTITUTIONALLY
IMPOSE AN AD VALOREM TAX. 

NOR DOES THE DUE PROCESS CLAUSE CONFINE THE DOMICILIARY STATE'S
TAXING POWERS TO SUCH PROPORTION OF THE VALUE OF THE PROPERTY BEING
TAXED AS IS EQUAL TO THE FRACTION OF THE TAX YEAR WHICH THE PROPERTY
SPENDS WITHIN THE STATE'S BORDERS.  UNION REFRIGERATOR TRANSIT CO. V.
KENTUCKY, 199 U.S. 194, HELD ONLY THAT THE DUE PROCESS CLAUSE
PROHIBITED AD VALOREM TAXATION BY THE OWNER'S DOMICILE OF TANGIBLE
PERSONAL PROPERTY PERMANENTLY LOCATED IN SOME OTHER STATE.  NORTHWEST
AIRLINES, INC., V. MINNESOTA, 322 U.S. 292, REAFFIRMED THE PRINCIPLE
ESTABLISHED BY EARLIER CASES THAT TANGIBLE PROPERTY FOR WHICH NO TAX
SITUS HAS BEEN ESTABLISHED ELSEWHERE MAY BE TAXED TO ITS FULL VALUE BY
THE OWNER'S DOMICILE.  SEE NEW YORK CENTRAL R. CO. V. MILLER, SUPRA;
SOUTHERN PACIFIC CO. V. KENTUCKY, 222 U.S. 63, 69; JOHNSON OIL REFINING
CO. V. OKLAHOMA, SUPRA.  IF SUCH PROPERTY HAS HAD INSUFFICIENT CONTACT
WITH STATES OTHER THAN THE OWNER'S DOMICILE TO RENDER ANY ONE OF THESE
JURISDICTIONS A "TAX SITUS," IT IS SURELY APPROPRIATE TO PRESUME THAT
THE DOMICILE IS THE ONLY STATE AFFORDING THE "OPPORTUNITIES, BENEFITS,
OR PROTECTION" WHICH DUE PROCESS DEMANDS AS A PREREQUISITE FOR
TAXATION.  SEE OTT V. MISSISSIPPI VALLEY BARGE LINE CO., 336 U.S. 169,
174. 

ACCORDINGLY, THE BURDEN IS ON THE TAXPAYER WHO CONTENDS THAT SOME
PORTION OF ITS TOTAL ASSETS ARE BEYOND THE REACH OF THE TAXING POWER OF
ITS DOMICILE TO PROVE THAT THE SAME PROPERTY MAY BE SIMILARLY TAXED IN
ANOTHER JURISDICTION.  CF. DIXIE OHIO EXPRESS CO. V. STATE REVENUE
COMM'N, 306 U.S. 72. 

THE CONTROLLING QUESTION HERE IS, THEREFORE, THE SAME AS IT WAS IN
STANDARD OIL CO. V. PECK, 342 U.S. 382, WHERE THE DECISION WHETHER A
STATE PROPERTY TAX MIGHT CONSTITUTIONALLY BE IMPOSED ON THE FULL VALUE
OF A DOMICILIARY'S MOVING ASSETS TURNED ON WHETHER "A DEFINED PART OF
THE DOMICILIARY CORPUS'" - THERE CONSISTING OF BOATS AND BARGES
TRAVELING ALONG INLAND WATERS - "COULD BE TAXED BY THE SEVERAL STATES
ON AN APPORTIONMENT BASIS."  342 U.S., AT 384. 

SINCE THE BURDEN OF PROVING AN EXEMPTION IS ON THE TAXPAYER WHO
CLAIMS IT, WE MUST CONSIDER WHETHER THE STIPULATED FACTS SHOW THAT SOME
DETERMINABLE PORTION OF THE VALUE OF THE APPELLANT'S FREIGHT CARS HAD
ACQUIRED A TAX SITUS IN A JURISDICTION OTHER THAN PENNSYLVANIA. 

                                         II. 

WITH RESPECT TO THE FREIGHT CARS THAT HAD BEEN USED ON THE LINES OF
CNJ DURING THE TAXABLE YEAR, THE STIPULATION ESTABLISHES THAT THEY
"WERE RUN ON FIXED ROUTES AND REGULAR SCHEDULES  ...  OVER THE LINES OF
CNJ  ...  IN NEW JERSEY."  THEIR HABITUAL EMPLOYMENT WITHIN THE
JURISDICTION IN THIS MANNER WOULD ASSUREDLY SUPPORT NEW JERSEY'S
IMPOSITION OF AN APPORTIONED AD VALOREM TAX ON THE VALUE OF THE
APPELLANT'S FLEET OF FREIGHT CARS.  MARYE V. BALTIMORE & OHIO R. CO.,
127 U.S. 117, 123-124; PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141
U.S. 18, 23; UNION REFRIGERATOR TRANSIT CO. V. LYNCH, 177 U.S. 149;
JOHNSON OIL REFINING CO. V. OKLAHOMA, 290 U.S. 158, 162-163; CF. OTT V.
MISSISSIPPI VALLEY BARGE LINE CO., 336 U.S. 169; BRANIFF AIRWAYS, INC.,
V. NEBRASKA BOARD OF EQUALIZATION, 347 U.S. 590, 601.  CONSEQUENTLY,
THE DAILY AVERAGE OF FREIGHT CARS LOCATED ON THE CNJ LINES IN THE 1951
TAX YEAR, 158 IN NUMBER, COULD NOT CONSTITUTIONALLY BE INCLUDED IN THE
COMPUTATION OF THIS PENNSYLVANIA TAX.  IN THIS RESPECT, THE
PENNSYLVANIA SUPREME COURT'S DECISION (WHICH IS DIFFICULT TO RECONCILE
WITH ITS HOLDING AS TO THE SIMILARLY SITUATED LOCOMOTIVES, NOTE 4,
SUPRA) CANNOT BE ACCEPTED. 

                               III. 

WE CONCLUDE, HOWEVER, THAT ON THE RECORD BEFORE US PENNSYLVANIA WAS
CONSTITUTIONALLY PERMITTED TO TAX, AT FULL VALUE, THE REMAINDER OF
APPELLANT'S FLEET OF FREIGHT CARS, INCLUDING THOSE USED BY OTHER
RAILRAODS UNDER THE CAR SERVICE AND PER DIEM AGREEMENT OF THE
ASSOCIATION OF AMERICAN RAILROADS.  THESE WERE, IN THE LANGUAGE OF THE
STIPULATION, "REGULARLY, HABITUALLY AND/OR CONTINUOUSLY EMPLOYED" IN
THIS MANNER, BUT THEY DID NOT RUN "ON FIXED ROUTES AND REGULAR
SCHEDULES" AS DID THE CARS USED BY CNJ. 

SINCE THE DOMICILIARY STATE IS PRECLUDED FROM IMPOSING AN AD VALOREM
TAX ON ANY PROPERTY TO THE EXTENT THAT IT COULD BE TAXED BY ANOTHER
STATE, NOT MERELY ON SUCH PROPERTY AS IS SUBJECTED TO TAX ELSEWHERE,
THE VALIDITY OF PENNSYLVANIA'S TAX MUST BE DETERMINED BY CONSIDERING
WHETHER THE FACTS IN THE RECORD DISCLOSE A POSSIBLE TAX SITUS IN SOME
OTHER JURISDICTION.  HAD THE RECORD SHOWN THAT APPELLANT'S CARS
TRAVELED THROUGH OTHER STATES ALONG FIXED AND REGULAR ROUTES, EVEN IT
IT WERE SILENT WITH RESPECT TO THE LENGTH OF TIME SPENT IN EACH
NONDOMICILIARY STATE, IT WOULD DOUBTLESS FOLLOW THAT THE STATES THROUGH
WHICH THE REGULAR TRAFFIC FLOWED COULD IMPOSE A PROPERTY TAX MEASURED
BY SOME FAIR APPORTIONING FORMULA.  CF. BRANIFF AIRWAYS, INC., V.
NEBRASKA BOARD OF EQUALIZATION, 347 U.S. 590.  AND THIS WOULD RENDER
UNCONSTITUTIONAL ANY DOMICILIARY AD VALOREM TAX AT FULL VALUE ON
PROPERTY THAT COULD THUS BE TAXED ELSEWHERE.  STANDARD OIL CO. V. PECK,
SUPRA, AT 384.  (FN6) 

ALTERNATIVELY A NONDOMICILIARY TAX SITUS MAY BE ACQUIRED EVEN IF THE
ROLLING STOCK DOES NOT FOLLOW PRESCRIBED ROUTES AND SCHEDULES IN ITS
COURSE THROUGH THE NONDOMICILIARY STATE.  IN AMERICAN REFRIGERATOR
TRANSIT CO. V. HALL, 174 U.S. 70, THIS COURT SUSTAINED THE
CONSTITUTIONALITY OF A COLORADO PROPERTY TAX ON A STIPULATED AVERAGE
NUMBER OF RAILROAD CARS THAT HAD BEEN LOCATED WITHIN THE TERRITORIAL
LIMITS OF COLORADO DURING THE TAX YEAR, ALTHOUGH IT WAS AGREED BY THE
PARTIES THAT THE CARS "NEVER WERE RUN IN SAID STATE IN FIXED NUMBERS
NOR AT REGULAR TIMES, NOR AS A REGULAR PART OF PARTICULAR TRAINS,"
ID., AT 72.  HABITUAL EMPLOYMENT WITHIN THE STATE OF A SUBSTANTIAL
NUMBER OF CARS, ALBEIT ON IRREGULAR ROUTES, MAY CONSTITUTE SUFFICIENT
CONTACT TO ESTABLISH A TAX SITUS PERMITTING TAXATION OF THE AVERAGE
NUMBER OF CARS SO ENGAGED. 

ON THE RECORD BEFORE US, HOWEVER, WE FIND NO EVIDENCE, EXCEPT AS TO
THE CNJ CARS, OF EITHER REGULAR ROUTES THROUGH PARTICULAR
NONDOMICILIARY STATES OR HABITUAL PRESENCE, THOUGH ON IRREGULAR
MISSIONS, IN PARTICULAR NONDOMICILIARY STATES.  IT IS NOT DISPUTED THAT
MANY OF THE RAILROADS LISTED AS OWNING NO TRACK WITHIN PENNSYLVANIA DO
HAVE LINES IN MORE THAN ONE STATE, BUT THERE IS NO WAY OF KNOWING
WHICH, IF ANY, OF THESE STATES MAY HAVE ACQUIRED TAXING JURISDICTION
OVER SOME OF APPELLANT'S FREIGHT CARS.  AND EVEN WITH RESPECT TO
RAILROADS WHOSE LINES DO NOT EXTEND BEYOND THE BORDERS OF A SINGLE
STATE, IT CANNOT BE DETERMINED WHETHER THEIR USE OF APPELLANT'S CARS
WAS HABITUAL OR MERELY SPORADIC.  (FN7)  IT MUST BE OBVIOUS THAT THE
FRACTION OF A RAILROAD'S LINES LOCATED WITHIN PENNSYLVANIA IS WHOLLY
UNILLUMINATING AS TO THE CONSISTENCY WITH WHICH THAT RAILROAD USED
APPELLANT'S CARS IN SOME OTHER STATE. 

IN SHORT, EXCEPT AS TO FREIGHT CARS TRAVELING ON THE LINES OF THE
CNJ, THIS RECORD SHOWS ONLY THAT A DETERMINABLE NUMBER  OF APPELLANT'S
CARS WERE EMPLOYED OUTSIDE THE COMMONWEALTH OF PENNSYLVANIA DURING THE
RELEVANT TAX YEAR.  BUT AS THIS LEAVES AT LARGE THE POSSIBILITY OF
THEIR HAVING A NONDOMICILIARY TAX SITUS ELSEWHERE, THAT SHOWING DOES
NOT SUFFICE UNDER OUR CASES TO EXCLUDE PENNSYLVANIA FROM TAXING SUCH
CARS TO THEIR FULL VALUE.  NEITHER UNION REFRIGERATOR TRANSIT CO. V.
KENTUCKY, SUPRA, NOR STANDARD OIL CO. V. PECK, SUPRA, IS PROPERLY READ
TO THE CONTRARY.  IN THE FORMER, THE CASE WAS REMANDED FOR FURTHER
PROCEEDINGS "NOT INCONSISTENT" WITH THE COURT'S OPINION THAT THE CARS
IN QUESTION, "SO FAR AS THEY WERE PERMANENTLY LOCATED AND EMPLOYED IN
OTHER STATES," WERE NOT SUBJECT TO THE TAXING POWER OF THE DOMICILIARY
STATE.  199 U.S., AT 211.  IN THE LATTER, THE EXISTENCE OF A TAX SITUS
IN ONE OR MORE NONDOMICILIARY STATES SUFFICIENTLY APPEARED FROM THE
RECORD.  NOTE 6, SUPRA.  TO ACCEPT THE PROPOSITION THAT A MERE GENERAL
SHOWING OF CONTINUOUS USE OF MOVABLE PROPERTY OUTSIDE THE DOMICILIARY
STATE IS SUFFICIENT TO EXCLUDE THE TAXING POWER OF THAT STATE WITH
RESPECT TO IT, WOULD SURELY RESULT IN AN UNSOUND RULE; IN INSTANCES
WHERE IT WAS ULTIMATELY FOUND THAT A TAX SITUS EXISTED IN NO OTHER
STATE SUCH PROPERTY WOULD ESCAPE THIS KIND OF TAXATION ENTIRELY. 

AS WE HAVE SHOWN THERE IS NOTHING TO THE CONTRARY IN STANDARD OIL CO.
V. PECK.  NOTE 6, SUPRA. AND NEITHER THE BRANIFF NOR OTT CASE POINTS TO
A DIFFERENT CONCLUSION.  IN BRANIFF THE AIRPLANES HELD SUBJECT TO
NONDOMICILIARY TAXATION WERE SHOWN BY THE RECORD TO HAVE FLOWN ON FIXED
AND REGULAR ROUTES.  347 U.S., AT 600-601.  IN OTT THE COURT WAS
CAREFUL TO POINT OUT THAT "THE STATUTE 'WAS INTENDED TO COVER AND
ACTUALLY COVERS HERE, AN AVERAGE PORTION OF PROPERTY PERMANENTLY WITHIN
THE STATE - AND BY PERMANENTLY IS MEANT THROUGHOUT THE TAXING YEAR.'" 
336 U.S., AT 175.  IN THE CASE BEFORE US IT IS IMPOSSIBLE TO TELL,
EXCEPT AS TO CARS ON THE LINES OF THE CNJ, WHAT THE AVERAGE NUMBER OF
CARS WAS ANNUALLY IN ANY GIVEN STATE. 

              IV. 

FINALLY, WE THINK THAT THE APPELLANT'S EQUAL PROTECTION ARGUMENT IS
INSUBSTANTIAL AND THAT IT WAS CORRECTLY REJECTED BY THE PENNSYLVANIA
SUPREME COURT.  FOR PURPOSES OF THIS TAX, PENNSYLVANIA COULD REASONABLY
DIFFERENTIATE BETWEEN RAILROADS HAVING TRACKS WHICH LAY ONLY WITHIN ITS
BORDERS AND THOSE WHOSE TRACKS WERE LOCATED BOTH WITHIN AND WITHOUT THE
STATE.  THE VARIOUS CONSIDERATIONS THAT JUSTIFY SUCH A CLASSIFICATION
FROM A FEDERAL CONSTITUTIONAL STANDPOINT NEED HARDLY BE ELABORATED.  IT
IS SUFFICIENT TO NOTE THAT THE STATE MIGHT REASONABLY HAVE CONCLUDED
THAT THE PROBABILITY OF A NONDOMICILIARY APPORTIONED AD VALOREM TAX ON
A RAILROAD'S TOTAL ASSETS IS GREATER IF THE RAILROAD MAINTAINS TRACKS
IN ANOTHER STATE THAN IF IT DOES NOT.  OR IT MIGHT HAVE DETERMINED THAT
THE IMPOSITION OF FRANCHISE OR OTHER TAXES BY NONDOMICILIARY STATES IN
WHICH THE RAILROAD DID BUSINESS COMPELLED SOME MITIGATION OF THE
DOMICILIARY'S PROPERTY TAX IN ORDER TO PREVENT AN OPPRESSIVE TAX
BURDEN.  IN EITHER EVENT, THE POSSIBLE BASIS FOR THE TAXING MEASURE'S
CLASSIFICATION WOULD BE REASONABLE AND COULD NOT BE HELD TO VIOLATE THE
EQUAL PROTECTION CLAUSE.  CF. ALLIED STORES OF OHIO, INC., V. BOWERS,
358 U.S. 522, 526-528; STEBBINS V. RILEY, 268 U.S. 137, 142; KIDD V.
ALABAMA, 188 U.S. 730. 

ACCORDINGLY, WE CONCLUDE THAT WITH RESPECT TO ALL CARS OTHER THAN
THOSE EMPLOYED BY CNJ ON ITS LINES IN NEW JERSEY THE APPELLANT HAS
FAILED TO SUSTAIN ITS BURDEN OF PROVING THAT A TAX SITUS HAD BEEN
ACQUIRED ELSEWHERE.  THE EXEMPTION WAS PROPERLY DISALLOWED IN THIS
REGARD. 

THE JUDGMENT OF THE SUPREME COURT OF PENNSYLVANIA IS VACATED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THE TAX IMPOSED BY THE STATE STATUTE IS DENOMINATED A "CAPITAL
STOCK TAX," BUT IT HAS BEEN CONSTRUED BY THE PENNSYLVANIA COURTS AS
BEING THE EQUIVALENT OF A PROPERTY TAX.  PENNSYLVANIA V. STANDARD OIL
CO., 101 PA. 119, 145; PENNSYLVANIA V. UNION SHIPBUILDING CO., 271 PA.
403, 114 A. 257.   PROPERTY EMPLOYED BY A CORPORATION IN ITS OPERATIONS
IN ANOTHER STATE AND PERMANENTLY LOCATED THERE IS NOT SUBJECT TO THIS
TAX.  PENNSYLVANIA V. AMERICAN DREDGING CO., 122 PA. 386, 15 A. 443. 
THE VALUE OF THE CAPITAL STOCK SUBJECTED TO THE TAX IS DETERMINED BY
MULTIPLYING THE TOTAL VALUE OF THE CAPITAL STOCK, AS MEASURED BY THE
WORTH OF ALL THE CORPORATION'S REAL AND PERSONAL PROPERTY, BY THE RATIO
THAT THE VALUE OF SUCH NONEXEMPT PROPERTY WITHIN PENNSYLVANIA
(INCLUDING THAT TEMPORARILY OUTSIDE THE STATE) BEARS TO THE VALUE OF
THE CORPORATION'S PROPERTY EVERYWHERE.  PURDON'S PA. STAT. ANN., 1949,
TIT. 72, SEC. 1896; PENNSYLVANIA V. DELAWARE, L.&W.R. CO., 145 PA. 96,
22 A. 157.  WITH REFERENCE TO THIS PRECISE TAXING MEASURE, THIS COURT
HAS SAID IN THE PAST THAT IT, IN PRACTICAL EFFECT, AMOUNTS TO "A TAX
UPON THE SPECIFIC PROPERTY WHICH GIVES THE ADDED VALUE TO THE CAPITAL
STOCK."  DELAWARE, L.&W.R. CO. V. PENNSYLVANIA, 198 U.S. 341, 357. 

FN2  IF APPELLANT'S ENTIRE FLEET OF CARS (3,074) IS MULTIPLIED BY THE
NUMBER OF DAYS IN THE YEAR 1951 (365), THE TOTAL NUMBER OF "CAR DAYS"
COMES TO 1,122,010.  APPELLANT'S SCHEDULES SHOW THAT 605,678 "CAR DAYS"
WERE SPENT ON RAILROADS WHICH OWNED NO TRACK IN PENNSYLVANIA.  IF THIS
LATTER NUMBER IS DIVIDED BY 365, THE QUOTIENT (1,659) REPRESENTS THE
AVERAGE NUMBER OF CARS LOCATED ON SUCH RAILROADS ON ANY ONE DAY DURING
1951. 

FN3  FOR EXAMPLE, APPELLANT COMPUTES 91,899 "CAR DAYS" AS HAVING BEEN
SPENT ON THE LINES OF THE NEW YORK CENTRAL RAILROAD.  SINCE 7.36% OF
THAT RAILROAD'S TRACK MILEAGE IS WITHIN PENNSYLVANIA, APPELLANT
ALLOCATES 6,764 "CAR DAYS," A PROPORTIONAL SHARE, TO PENNSYLVANIA. 

FN4  THE SUPREME COURT OF PENNSYLVANIA DID FIND, HOWEVER, THAT CERTAIN
DIESEL LOCOMOTIVES WHICH HAD BEEN LEASED TO CNJ BY THE APPELLANT AND
WHICH TRAVELED ALONG FIXED ROUTES AND SCHEDULES HAD ACQUIRED A TAX
SITUS IN NEW JERSEY AND COULD NOT BE TAXED AT THEIR FULL VALUE BY
PENNSYLVANIA.  THE STATE HAS NOT SOUGHT REVIEW OF THIS PART OF THAT
DECISION. 

FN5  E.G., SOUTHERN PAC. CO. V. KENTUCKY, 222 U.S. 63; JOHNSON OIL
REFINING CO. V. OKLAHOMA, 290 U.S. 158; NORTHWEST AIRLINES, INC., V.
MINNESOTA, 322 U.S. 292; OTT V. MISSISSIPPI VALLEY BARGE LINE CO., 336
U.S. 169; STANDARD OIL CO. V. PECK, 342 U.S. 382; BRANIFF AIRWAYS,
INC., V. NEBRASKA STATE BOARD OF EQUALIZATION, 347 U.S. 590.  SEE
GENERALLY DEVELOPMENTS, 75 HARV. L. REV. 953, 979-987. 

FN6  THE RECORD IN STANDARD OIL CO. V. PECK DISCLOSES THAT THE BOATS
AND BARGES WHICH OHIO SOUGHT TO TAX HAD BEEN TRAVELING ALONG THREE
REGULAR ROUTES ON THE MISSISSIPPI AND OHIO RIVERS:  FROM MEMPHIS,
TENNESSEE, TO MT. VERNON, INDIANA; FROM MEMPHIS, TENNESSEE, TO BROMLEY,
KENTUCKY; AND FROM BATON ROUGE OR GIBSON'S LANDING, LOUISIANA, TO
BROMLEY, KENTUCKY.  THE STATES IN WHICH THE VESSELS LANDED, AS WELL AS
THOSE THROUGH WHICH THEY REGULARLY TRAVELED, COULD UNDOUBTEDLY HAVE
TRACED THESE REGULAR TRIPS AND LEVIED APPROPRIATELY APPORTIONED AD
VALOREM TAXES. 

FN7  THE FACT THAT REVENUES FOR THE USE OF ONE OR MORE OF APPELLANT'S
CARS WERE ACCOUNTED FOR BY A SUBSCRIBER TO THE "CAR SERVICE AND PER
DIEM AGREEMENT" DOES NOT NECESSARILY INDICATE THAT SUCH CARS WERE EVER
USED ON THE LINES OF THAT SUBSCRIBER.  FOR UNDER THE AGREEMENT
SUBSCRIBERS WERE AUTHORIZED TO PERMIT THE USE OF ANOTHER RAILROAD'S
CARS BY NONSUBSCRIBERS, THOUGH THEY THEMSELVES REMAINED LIABLE TO THE
OWNER RAILROAD FOR THE PER DIEM RENTALS IN RESPECT OF THEIR
NONSUBSCRIBER USE. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

IN HOLDING THAT ONE STATE'S PROPERTY TAX MAY BE INVALIDATED IN PART
BECAUSE EXCESSIVE UNDER THE COMMERCE CLAUSE UPON THE SHOWING OF A RISK
THAT SOME OTHER STATE COULD IMPOSE A TAX ON PART OF THE VALUE OF THE
SAME PROPERTY, THE COURT IS FOLLOWING PRINCIPLES ANNOUNCED IN PRIOR
DECISIONS OF THIS COURT FROM WHICH I DISSENTED.  (FN1)  WHILE MY VIEWS
EXPRESSED IN THOSE CASES REMAIN UNCHANGED, THE NECESSITY OF THIS
COURT'S DECIDING CASES REQUIRES ME TO MAKE DECISIONS UNDER THE
CONSTITUTIONAL DOCTRINE THERE DECLARED SO LONG AS THE COURT REMAINS
COMMITTED TO IT.  (FN2)  WHERE A PARTY SEEKS TO INVOKE THAT DOCTRINE,
AS HERE, I WHOLLY AGREE WITH THE COURT THAT THE BURDEN OF SHOWING THAT
THERE IS A RISK OF MULTIPLE TAXATION SHOULD REST UPON THE PARTY
CHALLENGING THE CONSTITUTIONALITY OF A STATE TAX.  I ALSO AGREE WITH
THE COURT THAT THE RAILROAD IN THIS CASE HAS FAILED TO SHOW A RISK OF
MULTIPLE TAXATION WITH REFERENCE TO ANY CARS OTHER THAN THE AVERAGE
NUMBER THAT ARE IN NEW JERSEY ON ANY GIVEN DAY.  IT IS FOR THE
FOREGOING REASONS THAT I CONCUR IN THE COURT'S JUDGMENT AND ITS OPINION
INSOFAR AS IT RESTS ON THE COMMERCE CLAUSE. 

SINCE I THINK PARTIAL INVALIDATION OF THE TAX AS TO THE AVERAGE
NUMBER OF CARS IN NEW JERSEY ON ANY GIVEN DAY IN THE TAXABLE YEAR IS
FULLY SUPPORTED BY THE COMMERCE CLAUSE AS THIS COURT HAS INTERPRETED
IT, I WOULD HAVE BEEN CONTENT NOT TO DISCUSS THE DUE PROCESS QUESTION
AT ALL.  BUT SINCE THE COURT DOES REST IN PART ON DUE PROCESS, I FIND
IT NECESSARY TO EXPRESS MY DOUBTS ABOUT THE USE OF THE DUE PROCESS
CLAUSE TO STRIKE DOWN STATE TAX LAWS.  THE MODERN USE OF DUE PROCESS TO
INVALIDATE STATE TAXES RESTS ON TWO DOCTRINES:  (1) THAT A STATE IS
WITHOUT "JURISDICTION TO TAX" PROPERTY BEYOND ITS BOUNDARIES, AND (2)
THAT MULTIPLE TAXATION OF THE SAME PROPERTY BY DIFFERENT STATES IS
PROHIBITED.  NOTHING IN THE LANGUAGE OR THE HISTORY OF THE FOURTEENTH
AMENDMENT, HOWEVER, INDICATES ANY INTENTION TO ESTABLISH EITHER OF
THESE TWO DOCTRINES CONCERNING THE POWER OF STATES TO TAX.  IN FACT
NEITHER OF THESE DOCTRINES ORIGINATED IN THE DUE PROCESS CLAUSE AT ALL,
BUT WERE FIRST DECLARED BY THIS COURT LONG BEFORE THE FOURTEENTH
AMENDMENT WITH ITS DUE PROCESS CLAUSE WAS ADOPTED IN 1868.  (FN3)  AND
IN THE FIRST CASE STRIKING DOWN A STATE TAX FOR LACK OF JURISDICTION TO
TAX AFTER THE PASSAGE OF THAT AMENDMENT NEITHER THE AMENDMENT NOR ITS
DUE PROCESS CLAUSE NOR ANY OTHER CONSTITUTIONAL PROVISION WAS EVEN
MENTIONED; THE COURT SIMPLY STRUCK DOWN THE STATE TAX SAYING THAT TO
SUSTAIN IT WOULD BE "GIVING EFFECT TO THE ACTS OF THE LEGISLATURE OF
PENNSYLVANIA UPON PROPERTY AND INTERESTS LYING BEYOND HER
JURISDICTION."  (FN4)  THESE CASES AND OTHERS THAT FOLLOWED FOR MANY
YEARS AFTER THE ADOPTION OF THE AMENDMENT RESTED EITHER ON THE COMMERCE
CLAUSE OR ON NO CONSTITUTIONAL PROVISION AT ALL.  (FN5)  IN FACT NOT A
SINGLE STATE TAX WAS STRUCK DOWN BY THIS COURT AS A VIOLATION OF THE
DUE PROCESS CLAUSE UNTIL 1903 (FN6) - 35 YEARS AFTER THE ADOPTION OF
THE AMENDMENT - AND THEN WHOLLY WITHOUT ANY HISTORICAL OR OTHER REASONS
TO SHOW WHY THE CRYPTIC WORDS OF THE DUE PROCESS CLAUSE JUSTIFIED THE
INVALIDATION OF OTHERWISE LAWFUL STATE TAXES.  NOR DID THE COURT REVEAL
ITS REASONS FOR GIVING DUE PROCESS THIS MEANING IN THE NEXT CASE. 
(FN7)  FINALLY, IN THE THIRD CASE APPLYING THE DUE PROCESS CLAUSE TO
STRIKE DOWN A STATE TAX, THE COURT'S COMPLETE LACK OF EXPLANATION LED
MR. JUSTICE HOLMES TO SAY: 

"IT SEEMS TO ME THAT THE RESULT REACHED BY THE COURT PROBABLY IS A
DESIRABLE ONE, BUT I HARDLY UNDERSTAND HOW IT CAN BE DEDUCED FROM THE
FOURTEENTH AMENDMENT, AND AS THE CHIEF JUSTICE FEELS THE SAME
DIFFICULTY, I THINK IT PROPER TO SAY THAT MY DOUBT HAS NOT BEEN
REMOVED."  (FN8) 

THE COURT HAS EVER SINCE USED THE DUE PROCESS CLAUSE TO STRIKE DOWN
STATE LAWS BY FINDING IN IT SUBSTANTIALLY THE SAME PROTECTION FOR
INTERSTATE COMMERCE AS IT HAS FOUND IN THE COMMERCE CLAUSE.  (FN9)  BUT
THERE IS NO REFERENCE TO COMMERCE IN THE FOURTEENTH AMENDMENT AND THE
COURT HAS STILL NEVER ADEQUATELY EXPLAINED JUST WHAT THE BASIS FOR ITS
CONSTITUTIONAL DOCTRINE IS.  BECAUSE OF THIS I HAVE LONG ENTERTAINED
MANY OF THE SAME DOUBTS THAT MR. JUSTICE HOLMES EXPRESSED AS TO THE USE
OF THIS FLEXIBLE AND EXPANSIVE INTERPRETATION OF DUE PROCESS TO
INVALIDATE STATE TAX LAWS, (FN10) BUT SINCE THE COURT'S HOLDING HERE
ADEQUATELY RESTS ON THE PRESENTLY PREVAILING INTERPRETATION OF THE
COMMERCE CLAUSE, I DO NOT FIND THIS TO BE AN APPROPRIATE OCCASION TO
SUGGEST RECONSIDERATION OF THE APPLICABILITY OF THE DUE PROCESS CLAUSE
TO STATE TAX LAWS. 

FN1  SEE, E.G., GWIN, WHITE AND PRINCE, INC., V. HENNEFORD, 305 U.S.
434, 442; J.D.  ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 316.  SEE ALSO
NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292, 301 (CONCURRING
OPINION). 

FN2  CF. MORGAN V. VIRGINIA, 328 U.S. 373, 386 (CONCURRING OPINION). 

FN3  HAYS V. PACIFIC MAIL STEAMSHIP CO., 17 HOW.  596 (1854).  SEE
ALSO THE APOLLON, 9 WHEAT.  362, 370 (1824); BRANIFF AIRWAYS, INC. V.
NEBRASKA STATE BOARD OF EQUALIZATION, 347 U.S. 590, 599 N. 18. 

FN4  RAILROAD CO. V. JACKSON, 7 WALL.  262, 268 (1869). 

FN5  SEE, E.G., ST. LOUIS V. FERRY CO., 11 WALL.  423 (1871); STATE
TAX ON FOREIGN-HELD BONDS, 15 WALL.  300 (1873); MORGAN V. PARHAM, 16
WALL.  471 (1873); GLOUCESTER FERRY CO. V. PENNSYLVANIA, 114 U.S. 196
(1885).  SEE ALSO TAPPAN V. MERCHANTS' NATIONAL BANK, 19 WALL.  490
(1873); COE V. ERROL, 116 U.S. 517 (1886); PULLMAN'S PALACE CAR CO. V.
PENNSYLVANIA, 141 U.S. 18 (1891). 

FN6  LOUISVILLE & JEFFERSONVILLE FERRY CO. V. KENTUCKY, 188 U.S.
385. 

FN7  DELAWARE, LACKAWANNA & WESTERN R. CO. V. PENNSYLVANIA, 198 U.S.
341 (1905).  UNION REFRIGERATOR TRANSIT CO. V. KENTUCKY, 199 U.S. 194,
211 (1905). 

FN8  UNION REFRIGERATOR TRANSIT CO. V. KENTUCKY, 199 U.S. 194, 211
(1905).  PROFESSOR BEALE HAS SAID OF THIS DECISION THAT, "THE DISSENT
SEEMED SOUND AS DIRECTED AGAINST THE OPINION THAT THE STATE HAD NO
JURISDICTION.  NEVERTHELESS, JUDGE HOLMES WAS EQUALLY SOUND IN SAYING
THAT THE RESULT WAS A DESIRABLE ONE.  IT WOULD BE A RASH CONSTITUTIONAL
LAWYER WHO WOULD ARGUE TODAY THAT AN UNDESIRABLE RESULT WAS
NEVERTHELESS CONSTITUTIONAL."  1 BEALE, CONFLICT OF LAWS, 522.  THE USE
OF THE DUE PROCESS CLAUSE AS A METHOD OF STRIKING DOWN STATE TAX LAWS
REMAINED A SOURCE OF CONCERN TO MR. JUSTICE HOLMES THROUGHOUT THE
REMAINDER OF HIS SERVICE ON THE COURT AND PRODUCED QUITE A NUMBER OF
DISSENTS.  SEE, E.G., SAFE DEPOSIT & TRUST CO. V. VIRGINIA, 280 U.S.
83, 96 (1929); FARMERS LOAN & TRUST CO. V. MINNESOTA, 280 U.S. 204, 216
(1930)(OVERRULING BLACKSTONE V. MILLER, 188 U.S. 189); BALDWIN V.
MISSOURI, 281 U.S. 586, 595 (1930).  IN THE BALDWIN CASE HE STATED: 
"I HAVE NOT YET ADEQUATELY EXPRESSED THE MORE THAN ANXIETY THAT I FEEL
AT THE EVER INCREASING SCOPE GIVEN TO THE FOURTEENTH AMENDMENT IN
CUTTING DOWN WHAT I BELIEVE TO BE THE CONSTITUTIONAL RIGHTS OF THE
STATES.  AS THE DECISIONS NOW STAND, I SEE HARDLY ANY LIMIT BUT THE SKY
TO THE INVALIDATING OF THOSE RIGHTS IF THEY HAPPEN TO STRIKE A MAJORITY
OF THIS COURT AS FOR ANY REASON UNDESIRABLE."  281 U.S., AT 595.  SEE
ALSO MR. JUSTICE, LATER CHIEF JUSTICE, STONE'S DISSENT IN FIRST
NATIONAL BANK V. MAINE, 284 U.S. 312, 331, IN WHICH HE WAS JOINED BY
MR. JUSTICE HOLMES AND MR. JUSTICE BRANDEIS AND STATE TAX COMM'N V.
ALDRICH, 316 U.S. 174, WHERE THE COURT OVERRULED FIRST NATIONAL BANK
FOR THE REASONS EXPRESSED BY THE DISSENT IN THAT CASE. 

FN9  SEE H. P. HOOD & SONS, INC., V. DU MOND, 336 U.S. 525, 562
(DISSENTING OPINION). 

FN10  SEE, E.G., TREICHLER V. WISCONSIN, 338 U.S. 251, 257
(DISSENTING OPINION); THOMAS V. VIRGINIA, 364 U.S. 443 (DISSENTING
OPINION).  MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR.
JUSTICE STEWART JOIN, DISSENTING IN PART. 

THE STIPULATIONS OF FACT IN THIS CASE SHOW THAT AN AVERAGE OF 158
FREIGHT CARS (OF THE VALUE OF $525,765.71) RUN ON FIXED ROUTES AND
REGULAR SCHEDULES OVER RAILROAD LINES OUTSIDE OF PENNSYLVANIA.  THE
COURT PROPERLY HOLDS THAT THEY ARE BEYOND THE CONSTITUTIONAL REACH OF
PENNSYLVANIA. 

THE STIPULATIONS OF FACT ALSO SHOW THAT AN AVERAGE OF 2189.30 FREIGHT
CARS (OF THE VALUE OF $7,282,773) RUN REGULARLY, HABITUALLY, AND
CONTINUOUSLY ON THE LINES OF OTHER RAILROADS OUTSIDE OF PENNSYLVANIA,
THOUGH NOT ON FIXED SCHEDULES.  THE PENNSYLVANIA TAX ON THESE CARS IS
SUSTAINED ON THE AUTHORITY OF NEW YORK CENTRAL R. CO. V. MILLER, 202
U.S. 584; AND IF THAT CASE IS STILL INTACT THE COURT IS CORRECT IN
DENYING THE EXEMPTION CLAIMED. 

WITH ALL DEFERENCE WE CANNOT, HOWEVER, ALLOW PENNSYLVANIA TO LAY THIS
TAX AND ADHERE TO OUR RECENT DECISIONS.  IN OTT V. MISSISSIPPI BARGE
LINE, 336 U.S. 169, WE ALLOWED LOUISIANA AND THE CITY OF NEW ORLEANS TO
LEVY AD VALOREM TAXES ON BARGES OF FOREIGN CORPORATIONS EVEN THOUGH THE
BARGES WERE NOT PERMANENTLY IN THOSE JURISDICTIONS NOR OPERATED THERE
ON FIXED ROUTES AND REGULAR SCHEDULES.  THE ASSESSMENTS SUSTAINED WERE
"BASED ON THE RATIO BETWEEN THE TOTAL NUMBER OF MILES OF APPELLEES'
LINES IN LOUISIANA AND THE TOTAL NUMBER OF MILES OF THE ENTIRE LINE." 
ID., AT 171.  WE ADOPTED FOR BARGE LINES THE RULE APPLICABLE TO
RAILROADS, SAYING THAT WE SAW "NO PRACTICAL DIFFERENCE SO FAR AS EITHER
THE DUE PROCESS CLAUSE OR THE COMMERCE CLAUSE IS CONCERNED WHETHER IT
IS VESSELS OR RAILROAD CARS THAT ARE MOVING IN INTERSTATE COMMERCE." 
ID., AT 174.  WE WENT ON TO SAY: 

"THE PROBLEM UNDER THE COMMERCE CLAUSE IS TO DETERMINE 'WHAT PORTION
OF AN INTERSTATE ORGANISM MAY APPROPRIATELY BE ATTRIBUTED TO EACH OF
THE VARIOUS STATES IN WHICH IT FUNCTIONS.'  NASHVILLE, C. & ST. L.R.
CO. V. BROWNING, 310 U.S. 362, 365.  SO FAR AS DUE PROCESS IS CONCERNED
THE ONLY QUESTION IS WHETHER THE TAX IN PRACTICAL OPERATION HAS
RELATION TO OPPORTUNITIES, BENEFITS, OR PROTECTION CONFERRED OR
AFFORDED BY THE TAXING STATE.  SEE WISCONSIN V. J.C. PENNEY CO., 311
U.S. 435, 444.  THOSE REQUIREMENTS ARE SATISFIED IF THE TAX IS FAIRLY
APPORTIONED TO THE COMMERCE CARRIED ON WITHIN THE STATE."  IBID. 

WE APPLIED THE DECISION IN PULLMAN'S CAR CO. V. PENNSYLVANIA, 141
U.S. 18, TO BARGES, EVEN THOUGH THE PULLMAN'S CAR CASE, AS NOTED IN THE
MILLER CASE (202 U.S., AT 597), SUSTAINED A TAX ON CAPITAL STOCK WHERE
THE "SAME CARS WERE CONTINUOUSLY RECEIVING THE PROTECTION" OF THE
NONDOMICILIARY TAXING STATE.  NONETHELESS, IN THE OTT DECISION WE
ALLOWED THE TAX BY THE NONDOMICILIARY STATE TO BE LEVIED ON "AN AVERAGE
PORTION OF PROPERTY PERMANENTLY WITHIN THE STATE."  336 U.S., AT 175. 

IN STANDARD OIL CO. V. PECK, 342 U.S. 382, WE COMPLETED THE
REDEFINITION OF THE HOLDING IN THE MILLER DECISION WHICH WAS IMPLICIT
IN WHAT WE WROTE IN OTT.  IN THE PECK CASE THE DOMICILIARY STATE WAS
HELD TO HAVE NO POWER TO TAX BARGES, EXCEPT ON A FORMULA "WHICH FAIRLY
APPORTIONED THE TAX TO THE COMMERCE CARRIED ON WITHIN THE STATE" (ID.,
AT 383), AS A RESULT OF WHICH "INLAND WATER TRANSPORTATION" WAS PLACED
"ON THE SAME CONSTITUTIONAL FOOTING AS OTHER INTERSTATE ENTERPRISES." 
ID., AT 384.  WE DISTINGUISHED THE MILLER CASE BY SAYING THAT THERE "IT
DID NOT APPEAR THAT 'ANY SPECIFIC CARS OR ANY AVERAGE OF CARS' WAS SO
CONTINUOUSLY IN ANOTHER STATE AS TO BE TAXABLE THERE."  ID., AT 384. 
AND WE WENT ON TO SAY: 

"NO ONE VESSEL MAY HAVE BEEN CONTINUOUSLY IN ANOTHER STATE DURING THE
TAXABLE YEAR.  BUT WE DO KNOW THAT MOST, IF NOT ALL, OF THEM WERE
OPERATING IN OTHER WATERS AND THEREFORE UNDER OTT V. MISSISSIPPI BARGE
LINE CO., SUPRA, COULD BE TAXED BY THE SEVERAL STATES ON AN
APPORTIONMENT BASIS.  THE RULE WHICH PERMITS TAXATION BY TWO OR MORE
STATES ON AN APPORTIONMENT BASIS PRECLUDES TAXATION OF ALL OF THE
PROPERTY BY THE STATE OF DOMICILE.  SEE UNION TRANSIT CO. V. KENTUCKY,
199 U.S. 194.  OTHERWISE THERE WOULD BE MULTIPLE TAXATION OF INTERSTATE
OPERATIONS AND THE TAX WOULD HAVE NO RELATION TO THE OPPORTUNITIES,
BENEFITS, OR PROTECTION WHICH THE TAXING STATE GIVES THOSE
OPERATIONS."  ID., AT 384-385. 

IN BRANIFF AIRWAYS V. NEBRASKA BOARD, 347 U.S. 590, WE ALLOWED A
NONDOMICILIARY STATE TO LEVY AN APPORTIONED AD VALOREM TAX ON AIRCRAFT
MAKING 18 STOPS PER DAY IN THAT STATE.  WE SAID, "WE THINK SUCH REGULAR
CONTACT IS SUFFICIENT TO ESTABLISH NEBRASKA'S POWER TO TAX EVEN THOUGH
THE SAME AIRCRAFT DO NOT LAND EVERY DAY AND EVEN THOUGH NONE OF THE
AIRCRAFT IS CONTINUOUSLY WITHIN THE STATE."  ID., AT 601. 

AS A RESULT OF THE OTT, PECK AND BRANIFF CASES THE AVERAGE OF 2189.30
FREIGHT CARS THAT RUN REGULARLY, HABITUALLY, AND CONTINUOUSLY ON LINES
OF OTHER RAILROADS OUTSIDE PENNSYLVANIA COULD BE TAXED BY OTHER STATES,
EVEN THOUGH NO STATE CAN IDENTIFY THE PRECISE CARS WITHIN ITS BORDERS
AND EVEN THOUGH THE COMPLEMENT OF CARS IS CONSTANTLY CHANGING.  SINCE
THAT AVERAGE OF FREIGHT CARS IS REGULARLY, HABITUALLY, AND CONTINUOUSLY
OUTSIDE PENNSYLVANIA, THOSE CARS ARE TAXABLE ELSEWHERE AND THUS BEYOND
PENNSYLVANIA'S REACH.  THE FACT THAT WE DO NOT KNOW THE AVERAGE ANNUAL
NUMBER OF CARS IN ANY GIVEN STATE DOES NOT HELP PENNSYLVANIA'S CASE. 
WHATEVER THE AVERAGE IN ANY ONE STATE, THE TOTAL OUTSIDE PENNSYLVANIA
AND TAXABLE ELSEWHERE IS KNOWN AND DEFINITE.  SINCE THAT IS TRUE, WE
SANCTION DOUBLE TAXATION WHEN WE SUSTAIN THIS TAX.  WE WOULD NOT ALLOW
IT IN THE CASE OF ANY OTHER INTERSTATE BUSINESS; AND, AS I READ THE
CONSTITUTION, NO EXCEPTION IS MADE THAT PUTS THE RAILROAD BUSINESS AT A
DISADVANTAGE. 
..END :






















LINK V. WABASH RAILROAD CO. 370 U.S. 626 


NO. 422.  ARGUED APRIL 3, 1962 - DECIDED JUNE 25, 1962 - 291 F.2D 542,
AFFIRMED. 


MORE THAN SIX YEARS AFTER INSTITUTION OF THIS DIVERSITY-OF-CITIZENSHIP
ACTION BY PETITIONER IN A FEDERAL DISTRICT COURT TO RECOVER DAMAGES FOR
PERSONAL INJURIES SUSTAINED IN A COLLISION BETWEEN PETITIONER'S
AUTOMOBILE AND ONE OF RESPONDENT'S TRAINS, MORE THAN THREE YEARS AFTER
PETITIONER HAD FINALLY PREVAILED AGAINST RESPONDENT'S MOTION FOR
JUDGMENT ON THE PLEADINGS, AND AFTER TWO FIXED TRIAL DATES HAD BEEN
POSTPONED, THE COURT, ON SEPTEMBER 29, 1960, SCHEDULED A PRETRIAL
CONFERENCE TO BE HELD IN HAMMOND, IND., ON OCTOBER 12, 1960, AT 1:00
P.M. AND NOTIFIED COUNSEL FOR BOTH SIDES.  DURING THE MORNING OF
OCTOBER 11, PETITIONER'S COUNSEL TELEPHONED RESPONDENT'S COUNSEL FROM
INDIANAPOLIS THAT HE EXPECTED TO BE AT THE PRETRIAL CONFERENCE.  AT
ABOUT 10:45 A.M. ON OCTOBER 12, PETITIONER'S COUNSEL TELEPHONED THE
JUDGE'S SECRETARY TO TELL THE JUDGE THAT HE WAS OTHERWISE ENGAGED IN
INDIANAPOLIS, THAT HE COULD NOT BE IN HAMMOND BY 1:00 O'CLOCK; BUT THAT
HE WOULD BE THERE ON THE AFTERNOON OF OCTOBER 13 OR ANY TIME ON OCTOBER
14, IF THE PRETRIAL CONFERENCE COULD BE RESET.   WHEN PETITIONER'S
COUNSEL FAILED TO APPEAR AT THE PRETRIAL CONFERENCE, THE COURT, ACTING
SUA SPONTE, REVIEWED THE HISTORY OF THE CASE, FOUND THAT PETITIONER'S
COUNSEL HAD FAILED TO INDICATE ANY REASONABLE EXCUSE FOR HIS
NONAPPEARANCE, AND DISMISSED THE ACTION "FOR FAILURE OF THE PLAINTIFF'S
COUNSEL TO APPEAR AT THE PRETRIAL, FOR FAILURE TO PROSECUTE THIS
ACTION."  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 627-636. 

(A)  THE LONG-RECOGNIZED INHERENT POWER OF FEDERAL DISTRICT COURTS,
ACTING ON THEIR OWN INITIATIVE, TO DISMISS CASES THAT HAVE REMAINED
DORMANT BECAUSE OF THE INACTION OR DILATORINESS OF THE PARTIES SEEKING
RELIEF HAS NOT BEEN RESTRICTED BY FEDERAL RULE OF CIVIL PROCEDURE 41(B)
TO CASES IN WHICH THE DEFENDANT MOVES FOR DISMISSAL.  PP. 629-632. 

(B)  THE CIRCUMSTANCES HERE WERE SUCH AS TO DISPENSE WITH THE
NECESSITY FOR ADVANCE NOTICE AND HEARING BEFORE DISMISSING THE CASE. 
PP. 632-633. 

(C)  PETITIONER WAS BOUND BY HIS LAWYER'S CONDUCT ON THE BASIS OF
WHICH THE ACTION WAS DISMISSED.  PP. 633-634. 

(D)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE DISTRICT
COURT'S DISMISSAL OF THIS ACTION FOR FAILURE TO PROSECUTE AMOUNTED TO
AN ABUSE OF DISCRETION.  PP. 633-636. 

LINK V. WABASH RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER CHALLENGES, FROM THE STANDPOINT OF BOTH POWER AND
DISCRETION, THE DISTRICT COURT'S SUA SPONTE DISMISSAL OF THIS DIVERSITY
NEGLIGENCE ACTION UNDER CIRCUMSTANCES THAT FOLLOW. 

THE ACTION, GROWING OUT OF A COLLISION BETWEEN PETITIONER'S
AUTOMOBILE AND ONE OF RESPONDENT'S TRAINS, WAS COMMENCED ON AUGUST 24,
1954.  SOME SIX YEARS LATER, AND MORE THAN THREE YEARS AFTER PETITIONER
HAD FINALLY PREVAILED ON RESPONDENT'S MOTION FOR JUDGMENT ON THE
PLEADINGS (DURING WHICH TIME TWO FIXED TRIAL DATES HAD BEEN POSTPONED),
(FN1) THE DISTRICT COURT, ON SEPTEMBER 29, 1960, DULY NOTIFIED COUNSEL
FOR EACH SIDE OF THE SCHEDULING OF A PRETRIAL CONFERENCE TO BE HELD AT
THE COURTHOUSE IN HAMMOND, INDIANA, ON OCTOBER 12, 1960, AT 1 P.M.
DURING THE PRECEDING MORNING, OCTOBER 11, PETITIONER'S COUNSEL
TELEPHONED RESPONDENT'S LAWYER FROM INDIANAPOLIS, STATING THAT "HE WAS
DOING SOME WORK ON SOME PAPERS," THAT HE EXPECTED TO BE AT THE PRETRIAL
CONFERENCE, BUT THAT HE MIGHT NOT ATTEND THE TAKING OF A DEPOSITION OF
THE PLAINTIFF SCHEDULED FOR THE SAME DAY.  AT ABOUT 10:45 ON THE
MORNING OF OCTOBER 12 PETITIONER'S COUNSEL TELEPHONED THE HAMMOND
COURTHOUSE FROM INDIANAPOLIS (ABOUT 160 MILES AWAY), AND AFTER ASKING
FOR THE JUDGE, WHO THEN WAS ON THE BENCH, REQUESTED THE JUDGE'S
SECRETARY TO CONVEY TO HIM THIS MESSAGE:  "THAT HE (COUNSEL) WAS BUSY
PREPARING PAPERS TO FILE WITH THE INDIANA SUPREME COURT," THAT "HE
WASN'T ACTUALLY ENGAGED IN ARGUMENT AND THAT HE COULDN'T BE HERE BY
1:00 O'CLOCK, BUT HE WOULD BE HERE EITHER THURSDAY AFTERNOON (OCTOBER
14) IF IT (THE PRETRIAL CONFERENCE) COULD BE RESET." 

WHEN PETITIONER'S COUNSEL DID NOT APPEAR AT THE PRETRIAL CONFERENCE
THE DISTRICT COURT, AFTER REVIEWING THE HISTORY OF THE CASE (FN2) AND
FINDING THAT COUNSEL HAD FAILED "TO INDICATE  ...  A REASONABLE REASON"
FOR HIS NONAPPEARANCE, DISMISSED THE ACTION "FOR FAILURE OF THE
PLAINTIFF'S COUNSEL TO APPEAR AT THE PRETRIAL, FOR FAILURE TO PROSECUTE
THIS ACTION."  THE COURT, ACTING TWO HOURS AFTER THE APPOINTED HOUR FOR
THE CONFERENCE, STATED THAT THE DISMISSAL WAS IN THE "EXERCISE OF ITS
INHERENT POWER."  THE COURT OF APPEALS AFFIRMED BY A DIVIDED VOTE.  291
F.2D 542.  WE GRANTED CERTIORARI.  368 U.S. 918. 

                                        I. 

THE AUTHORITY OF A FEDERAL TRIAL COURT TO DISMISS A PLAINTIFF'S
ACTION WITH PREJUDICE BECAUSE OF HIS FAILURE TO PROSECUTE CANNOT
SERIOUSLY BE DOUBTED.  (FN3)  THE POWER TO INVOKE THIS SANCTION IS
NECESSARY IN ORDER TO PREVENT UNDUE DELAYS IN THE DISPOSITION OF
PENDING CASES AND TO AVOID CONGESTION IN THE CALENDARS OF THE DISTRICT
COURTS.  THE POWER IS OF ANCIENT ORIGIN, HAVING ITS ROOTS IN JUDGMENTS
OF NONSUIT AND NON PROSEQUITUR ENTERED AT COMMON LAW, E.G., 3
BLACKSTONE, COMMENTARIES (1768), 295-296, AND DISMISSALS FOR WANT OF
PROSECUTION OF BILLS IN EQUITY, E.G., ID., AT 451.  IT HAS BEEN
EXPRESSLY RECOGNIZED IN FEDERAL RULE OF CIVIL PROCEDURE 41(B), WHICH
PROVIDES, IN PERTINENT PART: 

"(B) INVOLUNTARY DISMISSAL:  EFFECT THEREOF.  FOR FAILURE OF THE
PLAINTIFF TO PROSECUTE OR TO COMPLY WITH THESE RULES OR ANY ORDER OF
COURT, A DEFENDANT MAY MOVE FOR DISMISSAL OF AN ACTION OR OF ANY CLAIM
AGAINST HIM  ...  .  UNLESS THE COURT IN ITS ORDER FOR DISMISSAL
OTHERWISE SPECIFIES, A DISMISSAL UNDER THIS SUBDIVISION AND ANY
DISMISSAL NOT PROVIDED FOR IN THIS RULE, OTHER THAN A DISMISSAL FOR
LACK OF JURISDICTION OR FOR IMPROPER VENUE, OPERATES AS AN ADJUDICATION
UPON THE MERITS." 

PETITIONER CONTENDS THAT THE LANGUAGE OF THIS RULE, BY NEGATIVE
IMPLICATION, PROHIBITS INVOLUNTARY DISMISSALS FOR FAILURE OF THE
PLAINTIFF TO PROSECUTE EXCEPT UPON MOTION BY THE DEFENDANT.  IN THE
PRESENT CASE THERE WAS NO SUCH MOTION. 

WE DO NOT READ RULE 41(B) AS IMPLYING ANY SUCH RESTRUCTION.  NEITHER
THE PERMISSIVE LANGUAGE OF THE RULE - WHICH MERELY AUTHORIZES A MOTION
BY THE DEFENDANT - NOR ITS POLICY REQUIRES US TO CONCLUDE THAT IT WAS
THE PURPOSE OF THE RULE TO ABROGATE THE POWER OF COURTS, ACTING ON
THEIR OWN INITIATIVE, TO CLEAR THEIR CALENDARS OF CASES THAT HAVE
REMAINED DORMANT BECAUSE OF THE INACTION OR DILATORINESS OF THE PARTIES
SEEKING RELIEF.  THE AUTHORITY OF A COURT TO DISMISS SUA SPONTE FOR
LACK OF PROSECUTION HAS GENERALLY BEEN CONSIDERED AN "INHERENT POWER,"
GOVERNED NOT BY RULE OR STATUTE BUT BY THE CONTROL NECESSARILY VESTED
IN COURTS TO MANAGE THEIR OWN AFFAIRS SO AS TO ACHIEVE THE ORDERLY AND
EXPEDITIOUS DISPOSITION OF CASES.  (FN4)  THAT IT HAS LONG GONE
UNQUESTIONED IS APPARENT NOT ONLY FROM THE MANY STATE COURT DECISIONS
SUSTAINING SUCH DISMISSALS, (FN5) BUT EVEN FROM LANGUAGE IN THIS
COURT'S OPINION IN REDFIELD V. YSTALYFERA IRON CO., 110 U.S. 174, 176. 
(FN6)  IT ALSO HAS THE SANCTION OF WIDE USAGE AMONG THE DISTRICT
COURTS.  (FN7)  IT WOULD REQUIRE A MUCH CLEARER EXPRESSION OF PURPOSE
THAN RULE 41(B) PROVIDES FOR US TO ASSUME THAT IT WAS INTENDED TO
ABROGATE SO WELL-ACKNOWLEDGED A PROPOSITION. 

NOR DOES THE ABSENCE OF NOTICE AS TO THE POSSIBILITY OF DISMISSAL OR
THE FAILURE TO HOLD AN ADVERSARY HEARING NECESSARILY RENDER SUCH A
DISMISSAL VOID.  IT IS TRUE, OF COURSE, THAT "THE FUNDAMENTAL
REQUIREMENT OF DUE PROCESS IS AN OPPORTUNITY TO BE HEARD UPON SUCH
NOTICE AND PROCEEDINGS AS ARE ADEQUATE TO SAFEGUARD THE RIGHT FOR WHICH
THE CONSTITUTIONAL PROTECTION IS INVOKED."  ANDERSON NATIONAL BANK V.
LUCKETT, 321 U.S. 233, 246.  BUT THIS DOES NOT MEAN THAT EVERY ORDER
ENTERED WITHOUT NOTICE AND A PRELIMINARY ADVERSARY HEARING OFFENDS DUE
PROCESS.  THE ADEQUACY OF NOTICE AND HEARING RESPECTING PROCEEDINGS
THAT MAY AFFECT A PARTY'S RIGHTS TURNS, TO A CONSIDERABLE EXTENT, ON
THE KNOWLEDGE WHICH THE CIRCUMSTANCES SHOW SUCH PARTY MAY BE TAKEN TO
HAVE OF THE CONSEQUENCES OF HIS OWN CONDUCT.  THE CIRCUMSTANCES HERE
WERE SUCH AS TO DISPENSE WITH THE NECESSITY FOR ADVANCE NOTICE AND
HEARING. 

IN ADDITION, THE AVAILABILITY OF A CORRECTIVE REMEDY SUCH AS IS
PROVIDED BY FEDERAL RULE OF CIVIL PROCEDURE 60(B) - WHICH AUTHORIZES
THE REOPENING OF CASES IN WHICH FINAL ORDERS HAVE BEEN INADVISEDLY
ENTERED - RENDERS THE LACK OF PRIOR NOTICE OF LESS CONSEQUENCE. 
PETITIONER NEVER SOUGHT TO AVAIL HIMSELF OF THE ESCAPE HATCH PROVIDED
BY RULE 60(B). 

ACCORDINGLY, WHEN CIRCUMSTANCES MAKE SUCH ACTION APPROPRIATE, A
DISTRICT COURT MAY DISMISS A COMPLAINT FOR FAILURE TO PROSECUTE EVEN
WITHOUT AFFORDING NOTICE OF ITS INTENTION TO DO SO OR PROVIDING AN
ADVERSARY HEARING BEFORE ACTING.  WHETHER SUCH AN ORDER CAN STAND ON
APPEAL DEPENDS NOT ON POWER BUT ON WHETHER IT WAS WITHIN THE
PERMISSIBLE RANGE OF THE COURT'S DISCRETION.  (FN8)

                                      II. 

ON THIS RECORD WE ARE UNABLE TO SAY THAT THE DISTRICT COURT'S
DISMISSAL OF THIS ACTION FOR FAILURE TO PROSECUTE, AS EVIDENCED ONLY
PARTLY BY THE FAILURE OF PETITIONER'S COUNSEL TO APPEAR AT A DULY
SCHEDULED PRETRIAL CONFERENCE, AMOUNTED TO AN ABUSE OF DISCRETION.  IT
WAS CERTAINLY WITHIN THE BOUNDS OF PERMISSIBLE DISCRETION FOR THE COURT
TO CONCLUDE THAT THE TELEPHONE EXCUSE OFFERED BY PETITIONER'S COUNSEL
WAS INADEQUATE TO EXPLAIN HIS FAILURE TO ATTEND.  AND IT COULD
REASONABLY BE INFERRED FROM HIS ABSENCE, AS WELL AS FROM THE DRAWN-OUT
HISTORY OF THE LITIGATION (SEE NOTE 2, SUPRA), (FN9) THAT PETITIONER
HAD BEEN DELIBERATELY PROCEEDING IN DILATORY FASHION. 

THERE IS CERTAINLY NO MERIT TO THE CONTENTION THAT DISMISSAL OF
PETITIONER'S CLAIM BECAUSE OF HIS COUNSEL'S UNEXCUSED CONDUCT IMPOSES
AN UNJUST PENALTY ON THE CLIENT.  PETITIONER VOLUNTARILY CHOSE HIS
ATTORNEY AS HIS REPRESENTATIVE IN THE ACTION, AND HE CANNOT NOW AVOID
THE CONSEQUENCES OF THE ACTS OR OMISSIONS OF THIS FREELY SELECTED
AGENT.  ANY OTHER NOTION WOULD BE WHOLLY INCONSISTENT WITH OUR SYSTEM
OF REPRESENTATIVE LITIGATION, IN WHICH EACH PARTY IS DEEMED BOUND BY
THE ACTS OF HIS LAWYER-AGENT AND IS CONSIDERED TO HAVE "NOTICE OF ALL
FACTS, NOTICE OF WHICH CAN BE CHARGED UPON THE ATTORNEY."  SMITH V.
AYER, 101 U.S. 320, 326.  (FN10) 

WE NEED NOT DECIDE WHETHER UNEXPLAINED ABSENCE FROM A PRETRIAL
CONFERENCE WOULD ALONE JUSTIFY A DISMISSAL WITH PREJUDICE IF THE RECORD
SHOWED NO OTHER EVIDENCE OF DILATORINESS ON THE PART OF THE PLAINTIFF. 
FOR THE DISTRICT COURT IN THIS CASE RELIED ON ALL THE CIRCUMSTANCES
THAT WERE BROUGHT TO ITS ATTENTION, INCLUDING THE EARLIER DELAYS. 
(FN11)  AND WHILE THE COURT OF APPEALS DID NOT EXPRESSLY REST ITS
JUDGMENT ON PETITIONER'S FAILURE TO PROSECUTE, IT NONETHELESS SET OUT
THE ENTIRE HISTORY OF THE CASE (INCLUDING THE STATEMENT MADE BY THE
DISTRICT JUDGE'S SECRETARY THAT IT WAS "THE OLDEST CIVIL CASE ON THE
COURT DOCKET"), NOTED THAT THE DISTRICT COURT HAD CONSIDERED THE
ABSENCE AT THE PRETRIAL CONFERENCE IN LIGHT OF "THE HISTORY OF THIS
LITIGATION" AND "OF ALL THE CIRCUMSTANCES SURROUNDING COUNSEL'S ACTION
IN THE CASE," 291 F.2D, AT 545, AND HELD THAT THERE WAS NO ABUSE OF
DISCRETION IN DISMISSING THE ACTION "UNDER THE CIRCUMSTANCES OF THIS
CASE."  ID., AT 546.  THIS OBVIOUSLY AMOUNTS TO NO BROADER A HOLDING
THAN THAT THE FAILURE TO APPEAR AT A PRETRIAL CONFERENCE MAY, IN THE
CONTEXT OF OTHER EVIDENCE OF DELAY, BE CONSIDERED BY A DISTRICT COURT
AS JUSTIFYING A DISMISSAL WITH PREJUDICE.  (FN12) 

NOR NEED WE CONSIDER WHETHER THE DISTRICT COURT WOULD HAVE BEEN
ABUSING ITS DISCRETION HAD IT REJECTED A MOTION UNDER RULE 60(B) WHICH
WAS ACCOMPANIED BY A MORE ADEQUATE EXPLANATION FOR THE ABSENCE OF
PETITIONER'S COUNSEL FROM THE PRETRIAL CONFERENCE.  NO SUCH MOTION WAS
EVER MADE, SO THAT THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE
THAT COUNSEL'S FAILURE TO ATTEND THE PRETRIAL CONFERENCE WAS OTHER THAN
DELIBERATE OR THE PRODUCT OF NEGLECT. 

FINALLY, THIS IS NOT A CASE IN WHICH FAILURE TO COMPLY WITH A COURT
ORDER "WAS DUE TO INABILITY FOSTERED NEITHER BY  ...  PETITIONER'S OWN
CONDUCT NOR BY CIRCUMSTANCES WITHIN ITS CONTROL."  SOCIETE
INTERNATIONALE V. ROGERS, 357 U.S. 197, 211.  PETITIONER'S COUNSEL
RECEIVED DUE NOTICE OF THE SCHEDULING OF THE PRETRIAL CONFERENCE, AND
CANNOT NOW BE HEARD TO SAY THAT HE COULD NOT HAVE FORESEEN THE
CONSEQUENCES OF HIS OWN DEFAULT IN ATTENDANCE.  AFFIRMED. 

FN1  SEE NOTE 2, INFRA. 

FN2  A HISTORY OF THE LITIGATION APPEARS IN THE OPINION OF THE COURT
OF APPEALS: 

"ON AUGUST 24, 1954, PLAINTIFF WILLIAM LINK FILED HIS COMPLAINT IN
THE DISTRICT COURT AGAINST DEFENDANT THE WABASH RAILROAD COMPANY TO
RECOVER DAMAGES FOR INJURIES ALLEGED TO HAVE BEEN SUSTAINED BY HIM WHEN
HE DROVE AN AUTOMOBILE INTO A COLLISION WITH DEFENDANT'S TRAIN STANDING
ACROSS A HIGHWAY IN INDIANA. 

"ON SEPTEMBER 17, 1954, DEFENDANT APPEARED AND FILED ITS ANSWER TO
THE COMPLAINT. 

"ON APRIL 30, 1955, DEFENDANT FILED ITS MOTION FOR JUDGMENT ON THE
PLEADINGS.  ON OCTOBER 18, 1955, HEARING WAS HAD ON THIS MOTION.  ON
NOVEMBER 30, 1955, THE DISTRICT COURT GRANTED DEFENDANT'S MOTION FOR
JUDGMENT ON THE PLEADINGS AND ORDERED THE CAUSE DISMISSED.  FROM THIS
ORDER OF DISMISSAL PLAINTIFF APPEALED.  ON OCTOBER 10, 1956, OUR COURT
REVERSED AND REMANDED THE CASE FOR TRIAL  ...  .  237 F.2D 1,
CERTIORARI DENIED 352 U.S. 1003  ...  (FEBRUARY 25, 1957).  ON MARCH
13, 1957, THE MANDATE FROM THIS COURT WAS FILED IN THE DISTRICT COURT. 

"SUBSEQUENTLY, THE TRIAL COURT SET THE CASE FOR TRIAL FOR JULY 17,
1957.  ON JUNE 27, 1957, ON MOTION OF PLAINTIFF AND DEFENDANT NOT
OBJECTING, THE TRIAL DATE OF JULY 17, 1957 WAS VACATED; AND THE CAUSE
WAS CONTINUED. 

"ON AUGUST 17, 1957, DEFENDANT FILED INTERROGATORIES FOR PLAINTIFF TO
ANSWER. 

"ON FEBRUARY 24, 1959, THE TRIAL COURT ON ITS OWN INITIATIVE GAVE
NOTICE TO THE PARTIES, PURSUANT TO LOCAL RULE 11 (FOOTNOTE OMITTED),
THAT THE CAUSE WOULD BE DISMISSED ON MARCH 25, 1959, UNLESS THE COURT
ORDERED OTHERWISE. 

"ON MARCH 24, 1959, PLAINTIFF FILED ANSWERS TO DEFENDANT'S
INTERROGATORIES. 

"ON MARCH 25, 1959, HEARING WAS HAD ON THE SHOW CAUSE ORDER, AND ON
JUNE 4, 1959 THE TRIAL COURT ENTERED AN ORDER RETAINING THE CASE ON THE
DOCKET AND SETTING IT FOR TRIAL FOR JULY 22, 1959. 

"ON JULY 2, 1959, ON DEFENDANT'S MOTION, TO WHICH PLAINTIFF AGREED,
THE TRIAL DATE OF JULY 22, 1959 WAS VACATED; AND THE CASE WAS
CONTINUED. 

"ON MARCH 11, 1960, DEFENDANT FILED ADDITIONAL INTERROGATORIES FOR
PLAINTIFF TO ANSWER.  ON APRIL 15, 1960, AFTER AN EXTENSION OF TIME
GRANTED BY THE TRIAL COURT, PLAINTIFF FILED ANSWERS TO THE ADDITIONAL
INTERROGATORIES. 

"ON SEPTEMBER 29, 1960, PURSUANT TO LOCAL RULE 12, EFFECTIVE MARCH 1,
1960, THE DISTRICT COURT CAUSED NOTICE TO BE MAILED TO COUNSEL FOR BOTH
PARTIES SCHEDULING A PRE-TRIAL CONFERENCE IN THIS CASE TO BE HELD IN
COURT ON OCTOBER 12, 1960, AT 1:00 O'CLOCK P.M."  291 F.2D, AT 543
544. 

FN3  SEE FED. RULES CIV. PROC., 41(B), P. 630, INFRA. 

FN4  E.G., CAGE V. CAGE, 74 F.2D 377; CARNEGIE NATIONAL BANK V. CITY
OF WOLF POINT, 110 F.2D 569; HICKS V. BEKINS MOVING & STORAGE CO., 115
F.2D 406; ZIELINSKI V. UNITED STATES, 120 F.2D 792; AMERICAN NATIONAL
BANK & TRUST CO. V. UNITED STATES, 142 F.2D 571; SHOTKIN V.
WESTINGHOUSE ELEC.  & MFG. CO., 169 F.2D 825; SLAVITT V. MEADER, 278
F.2D 276.    FN5  SEE, E.G., DES MOINES UNION R. CO. V. DISTRICT COURT,
170 IOWA 568, 153 N.W. 217; DOUGHTY V. TERMINAL R. ASSN., 291 S.W.2D
119 (MO.); FRYTEZ V. GRUCHACZ, 125 N.J.L. 630, 17 A.2D 541; REED V.
FIRST NATIONAL BANK, 194 ORE.  45, 241 P.2D 109; MOSHANNON NATIONAL
BANK V. IRON MOUNTAIN RANCH CO., 45 WYO. 265, 18 P.2D 623; CF. HARTFORD
ACCIDENT & INDEMNITY CO. V. SORRELLS, 50 ARIZ. 90, 69 P.2D 240;
THOMPSON V. FOOTE, 199 ARK. 474, 134 S.W.2D 11; KOON V. BARMETTLER, 134
COLO. 221, 301 P.2D 713. 

FN6  THE ISSUE IN THAT CASE WAS WHETHER A PLAINTIFF WAS ENTITLED TO
RECOVER INTEREST ON A REFUND CLAIM FOR CUSTOMS DUTIES PAID UNDER
PROTEST.  IN HOLDING THAT INTEREST FOR A 29-YEAR PERIOD DURING WHICH
THE SUIT REMAINED DORMANT SHOULD NOT HAVE BEEN ALLOWED, MR. JUSTICE
MATTHEWS, SPEAKING FOR A UNANIMOUS COURT, SAID:  "THIS DELAY IN
PROSECUTION WOULD CERTAINLY HAVE JUSTIFIED THE COURT IN DISMISSING THE
ACTION ON ITS OWN MOTION." 

FN7  IN THE MORE POPULOUS DISTRICTS, WHERE CALENDAR CONGESTION HAS
BECOME A SEVERE PROBLEM, THE DISTRICT COURTS, ACTING ON THEIR OWN
INITIATIVE, HAVE FROM TIME TO TIME ESTABLISHED SPECIAL CALL CALENDARS
OF "STALE" CASES FOR THE PURPOSE OF DISMISSING THOSE AS TO WHICH
NEITHER ADEQUATE EXCUSE FOR PAST DELAYS NOR REASON FOR A FURTHER
CONTINUANCE APPEARS.  SEE, FOR EXAMPLE, THE LOCAL RULES OF THE
FOLLOWING DISTRICT COURTS:  ALASKA RULE 16; ARIZ. RULE 14; N.D. CAL.
RULE 14; S.D. CAL. RULE 10(D); COLO. RULE 24; CONN. RULE 15; DEL. RULE
12; D.C. RULE 13; N.D. FLA. RULE 7; S.D. FLA. RULE 11; N.D. GA. RULE
13(C); IDAHO RULE 8(C); E.D. ILL. RULE 9; N.D. ILL. GEN RULE 21; N.D.
IND. RULE 10; S.D. IND.  RULE 16; N.D. IOWA RULE 22; S.D. IOWA RULE 22;
KAN. RULE 13; E.D. LA. GEN. RULE 12; ME.  RULE 15; MASS. RULE 12; W.D.
MICH. RULE 8; MINN. RULE 3(3); E.D. MO. RULE 8(G); NEB. RULE 18; NEV.
RULE 9(B); N.J. RULE 12; N.M. RULE 13; E.D.N.Y. GEN. RULE 23; N.D.N.Y.
GEN. RULE 11; S.D.N.Y. GEN. RULE 23; W.D.N.Y. GEN. RULE 11; N.D. OHIO
RULE 6; S.D. OHIO RULE 8: E.D.  OKA.  RULE 12; E.D. PA. RULE 18; M.D.
PA.  RULE 21-A; S. DAK.  RULE 9, SEC. 4; S.D. TEX. GEN. RULE 22; UTAH
RULE 4(C); E.D. WASH. RULE 23(A); W.D. WASH. RULE 41; N.D.W. VA. ART
II, RULE 8; S.D.W. VA. RULE 8; E.D. WIS. RULE 11; W.D. WIS. RULE 15;
WYO. RULE 14. 

FN8  PETITIONER'S CONTENTION THAT THE DISTRICT COURT COULD NOT ACT IN
THE CONCEDED ABSENCE OF ANY LOCAL RULE COVERING THE SITUATION HERE IS
OBVIOUSLY UNSOUND.  FEDERAL RULE OF CIVIL PROCEDURE 83 EXPRESSLY
PROVIDES THAT "IN ALL CASES NOT PROVIDED FOR BY RULE, THE DISTRICT
COURTS MAY REGULATE THEIR PRACTICE IN ANY MANNER NOT INCONSISTENT WITH
THESE RULES."  IN LIGHT OF WHAT HAS ALREADY BEEN SAID WE FIND NO SUCH
INCONSISTENCY HERE. 

FN9  THE RECORD SHOWS THAT THIS WAS THE "OLDEST" CASE ON THE DISTRICT
COURT'S CIVIL DOCKET. 

FN10  CLIENTS HAVE BEEN HELD TO BE BOUND BY THEIR COUNSELS' INACTION
IN CASES IN WHICH THE INFERENCES OF CONSCIOUS ACQUIESCENCE HAVE BEEN
LESS SUPPORTABLE THAN THEY ARE HERE, AND WHEN THE CONSEQUENCES HAVE
BEEN MORE SERIOUS.  SEE, E.G., UNITED STATES EX REL. REID V. RICHMOND,
295 F.2D 83, 89-90; EGAN V. TEETS, 251 F.2D 571, 577 N. 9; UNITED
STATES V. SORRENTINO, 175 F.2D 721.  SURELY IF A CRIMINAL DEFENDANT MAY
BE CONVICTED BECAUSE HE DID NOT HAVE THE PRESENCE OF MIND TO REPUDIATE
HIS ATTORNEY'S CONDUCT IN THE COURSE OF A TRIAL, A CIVIL PLAINTIFF MAY
BE DEPRIVED OF HIS CLAIM IF HE FAILED TO SEE TO IT THAT HIS LAWYER
ACTED WITH DISPATCH IN THE PROSECUTION OF HIS LAWSUIT.  AND IF AN
ATTORNEY'S CONDUCT FALLS SUBSTANTIALLY BELOW WHAT IS REASONABLE UNDER
THE CIRCUMSTANCE, THE CLIENT'S REMEDY IS AGAINST THE ATTORNEY IN A SUIT
FOR MALPRACTICE.  BUT KEEPING THIS SUIT ALIVE MERELY BECAUSE PLAINTIFF
SHOULD NOT BE PENALIZED FOR THE OMISSIONS OF HIS OWN ATTORNEY WOULD BE
VISITING THE SINS OF PLAINTIFF'S LAWYER UPON THE DEFENDANT.  MOREOVER,
THIS COURT'S OWN PRACTICE IS IN KEEPING WITH THIS GENERAL PRINCIPLE. 
FOR EXAMPLE, IF COUNSEL FILES A PETITION FOR CERTIORARI OUT OF TIME, WE
ATTRIBUTE THE DELAY TO THE PETITIONER AND DO NOT REQUEST AN EXPLANATION
FROM THE PETITIONER BEFORE ACTING ON THE PETITION. 

FN11  THE HISTORY OF THE CASE BELIES ANY SUGGESTION THAT THE DELAY
WAS THE FAULT OF THE DEFENDANT OR SOLELY OF THE DISTRICT JUDGE WHO
FIRST RULED ERRONEOUSLY ON THE MOTION FOR JUDGMENT ON THE PLEADINGS. 
AFTER THE MANDATE OF THE COURT OF APPEALS WAS FILED WITH THE DISTRICT
COURT, THE TRIAL DATE THAT WAS SET WAS VACATED ON THE PLAINTIFF'S
MOTION.  THEREAFTER, THE PLAINTIFF FAILED TO ANSWER THE DEFENDANT'S
INTERROGATORIES FROM AUGUST 17, 1957, UNTIL THE DAY BEFORE THE HEARING
ON THE ORDER TO SHOW CAUSE WHY THE CASE SHOULD NOT BE DISMISSED FOR
WANT OF PROSECUTION - WHICH WAS MORE THAN 19 MONTHS LATER.  ALTHOUGH
THE NEXT DELAY WAS OCCASIONED BY THE DEFENDANT'S MOTION, IT WAS
CONSENTED TO BY THE PLAINTIFF AND THERE IS NO SHOWING WHATEVER THAT
PLAINTIFF EVER MADE ANY EFFORT TO BRING THE CASE TO TRIAL.  IN FACT,
WHEN THE DEFENDANT SUBMITTED FURTHER INTERROGATORIES, PLAINTIFF AGAIN
MOVED TO HAVE THE TIME TO ANSWER EXTENDED.  AGAINST THIS BACKGROUND, IT
IS HARDLY SURPRISING THAT THE DISTRICT COURT CONCLUDED THAT THE FAILURE
TO APPEAR FOR A PRETRIAL CONFERENCE WAS MERELY ANOTHER DELAYING
TACTIC. 

FN12  EVEN IF THE JUDGMENT OF THE COURT OF APPEALS RESTED ON THE
GROUND THAT COUNSEL'S "FAILURE" TO ATTEND THE PRETRIAL CONFERENCE
SUFFICED BY ITSELF TO JUSTIFY THE DISMISSAL, IT IS OUR DUTY, WITHOUT
REACHING THE BROADER QUESTION, TO SUSTAIN THE DISTRICT COURT ON ITS
NARROWER HOLDING IF, AS WE DECIDE, THAT HOLDING WAS CORRECT.  E.G.,
WALLING V. GENERAL INDUSTRIES CO., 330 U.S. 545, 547; LANGNES V. GREEN,
282 U.S. 531, 536-537; UNITED STATES V. AMERICAN RAILWAY EXPRESS CO.,
265 U.S. 425, 435-436; SEE SECURITIES & EXCHANGE COMM'N V. CHENERY
CORP., 318 U.S. 80, 88. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE CONCURS, DISSENTING. 

I THINK THAT THE ORDER OF THE DISTRICT COURT DISMISSING THIS CASE HAS
NO SOUND BASIS IN LAW, IN FACT OR IN JUSTICE.  THE PETITIONER WILLIAM
LINK BROUGHT AN ACTION TO RECOVER DAMAGES FOR ALLEGED SERIOUS AND
PERMANENT INJURIES SUFFERED IN A COLLISION BETWEEN HIS TRUCK AND A
TRAIN OPERATED BY THE RESPONDENT WABASH RAILROAD COMPANY.  THE DISTRICT
COURT DISMISSED THAT ACTION WITHOUT NOTICE OF ANY KIND TO THE PLAINTIFF
LINK OR TO HIS LAWYER SHORTLY AFTER THE LAWYER FAILED TO APPEAR AT A
SCHEDULED PRETRIAL CONFERENCE WITHOUT WHAT THE TRIAL JUDGE REGARDED AS
AN ADEQUATE EXCUSE.  THE ORDER OF DISMISSAL APPARENTLY PURPORTS TO END
PETITIONER'S LAWSUIT AND BAR FOREVER HIS RIGHT TO RECOVER COMPENSATION
FOR HIS INJURIES.  (FN1)  UNDER THESE CIRCUMSTANCES, I THINK JUDGE
SCHNACKENBERG WAS ENTIRELY CORRECT IN HIS DISSENT TO THE OPINION OF THE
MAJORITY ON THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT UPHOLDING THE
DISMISSAL WHEN HE SAID: 

"THE ORDER NOW AFFIRMED HAS INFLICTED A SERIOUS INJURY UPON AN
INJURED MAN AND HIS FAMILY, WHO ARE INNOCENT OF ANY WRONGDOING. 
PLAINTIFF'S CAUSE OF ACTION  ...  WAS HIS PROPERTY.  IT HAS BEEN
DESTROYED.  THE DISTRICT COURT, TO PUNISH A LAWYER, HAS CONFISCATED
ANOTHER'S PROPERTY WITHOUT PROCESS OF LAW, WHICH OFFENDS THE
CONSTITUTION.  A DISTRICT COURT DOES NOT LACK DISCIPLINARY AUTHORITY
OVER AN ATTORNEY AND THERE IS NO JUSTIFICATION, MORAL OR LEGAL, FOR ITS
PUNISHMENT OF AN INNOCENT LITIGANT FOR THE PERSONAL CONDUCT OF HIS
COUNSEL.  BECAUSE IT WAS NEITHER NECESSARY NOR PROPER TO VISIT THE SIN
OF THE LAWYER UPON HIS CLIENT, I WOULD REVERSE."  (FN2) 

AS I UNDERSTAND THE OPINION OF THE COURT HERE, IT UPHOLDS THE
DISTRICT COURT'S DISMISSAL ORDER UPON THE GROUND OF "WANT OF
PROSECUTION" AND "DILATORINESS ON THE PART OF THE PLAINTIFF," MAKING IT
UNNECESSARY, AS THE COURT VIEWS THE CASE, TO "DECIDE WHETHER
UNEXPLAINED ABSENCE FROM A PRETRIAL CONFERENCE WOULD ALONE JUSTIFY A
DISMISSAL WITH PREJUDICE  ...  ."  I DO NOT THINK THAT THERE IS ANY
BASIS IN THE RECORD TO SUPPORT A DISMISSAL OF THIS CASE FOR "WANT OF
PROSECUTION," FOR "DILATORINESS ON THE PART OF THE PLAINTIFF" OR FOR
ANY OTHER REASON.  IN THE FIRST PLACE, IT SEEMS TO ME THAT THE COURT IS
IN ERROR WHEN IT SUGGESTS THAT BOTH THE DISTRICT COURT AND THE COURT OF
APPEALS RELIED ON ALL THE CIRCUMSTANCES OF THIS CASE, INCLUDING ITS
"EARLIER DELAYS," TO JUSTIFY ITS DISMISSAL WITH PREJUDICE.  IT IS TRUE
THAT THE TRIAL JUDGE, THOUGH EXPRESSLY BASING HIS ORDER ENTIRELY UPON
THE FAILURE OF PETITIONER'S LAWYER TO APPEAR AT THE PRETRIAL
CONFERENCE, (FN3) DID MENTION THE EARLIER HISTORY OF THE CASE AS A
GROUND FOR HIS ACTION IN A CONVERSATION WITH THE RESPONDENT'S LAWYER
JUST BEFORE THE DISMISSAL.  BUT AS I READ THE COURT OF APPEALS'
OPINION, IT NEITHER RELIED UPON NOR EVEN CONSIDERED SUCH A GROUND TO
SUPPORT ITS JUDGMENT.  THE OPENING STATEMENT OF THE COURT OF APPEALS'
OPINION CERTAINLY TREATED THE CASE AS RESTING NOT UPON ANY GENERAL WANT
OF PROSECUTION BUT INSTEAD WHOLLY UPON THE FAILURE OF THE LAWYER TO
APPEAR:  "THIS IS AN APPEAL BY PLAINTIFF FROM AN ORDER OF THE DISTRICT
COURT ENTERED OCTOBER 12, 1960 DISMISSING THIS CAUSE OF ACTION FOR
FAILURE OF PLAINTIFF'S COUNSEL TO APPEAR IN COURT FOR A PRE-TRIAL
CONFERENCE SCHEDULED FOR HEARING ON THAT DATE."  (FN4)  FROM THIS
OPENING STATEMENT TO THE END OF THE MAJORITY OPINION, I THINK THAT
EVERY ARGUMENT AND SENTENCE IN THAT OPINION IS DIRECTED TO SUPPORTING
THE COURT OF APPEALS' CONCLUSION THAT THE DISTRICT COURT HAD POWER TO
DISMISS THE CASE NOT FOR ANY "WANT OF PROSECUTION" BUT SOLELY "AS A
SANCTION FOR DISOBEDIENCE OF A COURT ORDER."  (FN5)  INDEED, THE ONLY
REFERENCE TO "WANT OF PROSECUTION" IN THE COURT OF APPEALS' ENTIRE
OPINION IS A PARENTHETICAL ONE TO DESCRIBE THAT COURT'S HOLDING IN
ANOTHER CASE "WHERE WE UPHELD THE DISMISSAL OF A CAUSE UNDER ANOTHER
LOCAL RULE  ...  ."  (FN6)  THE PLAIN IMPORT OF THE COURT OF APPEALS'
OPINION IS, TO MY MIND, STARKLY REVEALED WHEN ITS REFUSAL TO RELY UPON
ANY THEORY OF "WANT OF PROSECUTION" IS CONSIDERED IN CONNECTION WITH
THE EMPHATIC STATEMENTS OF JUDGE SCHNACKENBERG IN DISSENT: "DEFENDANT'S
COUNSEL MAKES NO EFFORT TO RELY UPON WANT OF PROSECUTION AS A GROUND
FOR THE INVOLUNTARY DISMISSAL.  OBVIOUSLY DEFENDANT IS IN NO POSITION
TO MAKE SUCH A CONTENTION, INASMUCH AS IT CAUSED THE DISTRICT COURT TO
VACATE THE ORDER SETTING THE CASE FOR TRIAL ON JULY 22, 1959, AND
CONTINUE THE CASE."  (FN7)  IT IS IMPOSSIBLE FOR ME TO BELIEVE THAT THE
MAJORITY OF THE COURT OF APPEALS WOULD HAVE LEFT THIS STATEMENT
UNCHALLENGED IF THEY HAD WANTED TO PLACE ANY RELIANCE AT ALL UPON "WANT
OF PROSECUTION," "DILATORINESS ON THE PART OF THE PLAINTIFF," OR ANY
GROUND OTHER THAN THEIR DESIRE TO APPROVE A SANCTION UPON LINK'S LAWYER
FOR HIS FAILURE TO APPEAR AT THE PRETRIAL CONFERENCE. 

SECONDLY, I THINK THAT THIS COURT'S DECISION TO IGNORE THE SINGLE
GROUND UPON WHICH I BELIEVE THAT THE COURT OF APPEALS RESTED AND TO
RESURRECT THE "WANT OF PROSECUTION" THEORY FROM THE TRIAL COURT
COLLOQUY IS WRONG BECAUSE THIS CASE HAS BEEN A VERY LIVE ONE FROM THE
DATE IT WAS FILED RIGHT UP TO THIS VERY MOMENT.  IT IS TRUE THAT THE
CASE WHEN DISMISSED HAD BEEN PENDING FOR A LONG TIME, THAT IS, FROM
AUGUST 24, 1954, TO THE DATE OF DISMISSAL, OCTOBER 12, 1960.  BUT
DURING THIS ENTIRE PERIOD OF TIME, MOTIONS AND ACTIVITIES OF VARIOUS
KINDS BOTH BY THE LAWYERS AND BY THE TRIAL JUDGE WERE TAKING PLACE IN
THE COURT.  CERTAINLY IT WOULD BE IMPOSSIBLE FOR ANYONE TO SUGGEST THAT
THE PLAINTIFF LINK OR HIS LAWYER WAS RESPONSIBLE FOR THE FIRST THREE
YEARS OF DELAY IN THE TRIAL OF THE CASE.  IF RESPONSIBILITY IS TO BE
PLACED UPON ANYONE FOR THAT DELAY, IT MUST BE PLACED UPON THE LAWYERS
FOR THE DEFENDANT AND UPON THE TRIAL JUDGE.  ONE MONTH AFTER THE
LAWSUIT WAS FILED THE DEFENDANT APPEARED AND ANSWERED THE COMPLAINT. 
SOME MONTHS LATER THE DEFENDANT FILED A MOTION FOR JUDGMENT ON THE
PLEADINGS, ARGUING THAT THE COMPLAINT FAILED TO STATE A CAUSE OF
ACTION.  ON NOVEMBER 30, 1955, MORE THAN A YEAR AFTER THE CASE WAS
FILED, THE DISTRICT JUDGE GRANTED THE MOTION FOR JUDGMENT ON THE
PLEADINGS AND ENTERED HIS FIRST DISMISSAL OF THE CASE.  ON OCTOBER 10,
1956, HOWEVER, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT, IN AN
OPINION BY JUDGE SCHNACKENBERG, REVERSED THIS DISMISSAL AND REMANDED
THE CASE FOR TRIAL.  (FN8)  THE RAILROAD THEN ASKED THIS COURT TO GRANT
CERTIORARI AND REVIEW THE COURT OF APPEALS' HOLDING BUT, ON FEBRUARY
25, 1957, WE DENIED CERTIORARI.  (FN9)  AT THIS STAGE, THE CASE HAD
BEEN DELAYED FOR ALMOST THREE YEARS BY AN ERRONEOUS RULING OF THE TRIAL
JUDGE MADE AT THE INSTANCE OF THE DEFENDANT'S LAWYERS. 

UPON REMAND, THE DISTRICT COURT SET THE CASE FOR HEARING ON JULY 17,
1957, BUT THIS ORDER WAS VACATED AND THE CAUSE CONTINUED "ON MOTION OF
THE PLAINTIFF, AND DEFENDANT NOT OBJECTING  ...  ."  THIS CONTINUANCE
OF THE CASE BY AGREEMENT BETWEEN THE PLAINTIFF AND THE DEFENDANT OF
COURSE PROVIDES NOT EVEN A SCINTILLA OF EVIDENCE TO SUPPORT A DISMISSAL
FOR WANT OF PROSECUTION.  TWO MONTHS LATER, IN AN EFFORT TO BUTTRESS
ITS DEFENSE FOR THE APPROACHING TRIAL ON THE MERTIS, THE RAILROAD FILED
INTERROGATORIES WHICH THE PLAINTIFF ANSWERED.  IT IS TRUE THAT THESE
INTERROGATORIES WERE NOT ANSWERED UNTIL SOME 19 MONTHS AFTER THEY WERE
FILED.  BUT THERE IS NO INDICATION IN THE RECORD THAT THE DEFENDANT
TRIED TO GET THE INTERROGATORIES ANSWERED EARLIER.  AND EVERY TRIAL
LAWYER KNOWS THAT THE FAILURE OF A LAWYER TO ANSWER INTERROGATORIES
DESIGNED TO SOLICIT ANSWERS TO BE USED AGAINST HIS CLIENT BEFORE THOSE
ANSWERS ARE DEMANDED BY THE PARTY FILING THE INTERROGATORIES IS NOTHING
MORE THAN A NORMAL TRIAL TACTIC OF A LAWYER WHO IS TRYING TO WIN THE
CASE FOR HIS CLIENT.  ON FEBRUARY 24, 1959, THE TRIAL JUDGE ON HIS OWN
MOTION ISSUED NOTICE TO THE PARTIES THAT HE WOULD DISMISS THE CASE FOR
THE SECOND TIME ON MARCH 25, 1959, UNLESS HE ORDERED OTHERWISE.  AFTER
HOLDING HEARINGS ON THAT DATE, HOWEVER, AND CONSIDERING THE ARGUMENTS
OF COUNSEL, THE TRIAL JUDGE ENTERED ON JUNE 4, 1959, AN ORDER RETAINING
THE CASE ON HIS DOCKET AND SETTING IT FOR TRIAL ON JULY 22, 1959.  THIS
ACTION OF THE COURT IN RETAINING THE CASE ON ITS DOCKET SHOWS THAT THE
TRIAL JUDGE CERTAINLY DID NOT THINK AT THAT TIME THAT THE CASE WAS NOT
BEING PROSECUTED.  BUT BEFORE THE CASE COULD BE TRIED ON JULY 22, THE
JUDGE GRANTED ANOTHER CONTINUANCE, THIS TIME AT THE REQUEST OF THE
DEFENDANT WITH THE PLAINTIFF NOT OBJECTING.  ALTHOUGH THIS CONTINUANCE
AT THE REQUEST OF THE DEFENDANT, LIKE THE PREVIOUS THREE-YEAR DELAY
DIRECTLY ATTRIBUTABLE TO THE DEFENDANT AND THE COURT, DOUBTLESS
CONTRIBUTED TO THE AGE OF THIS CASE ON THE COURT'S DOCKET, I DO NOT
SUPPOSE (ALTHOUGH I AM NOT CERTAIN) THAT IT IS ONE OF THE
"CIRCUMSTANCES" WHICH THE COURT REFERS TO AS JUSTIFYING THE DISMISSAL
OF THE CASE.  ON MARCH 11, 1960, SIX YEARS AFTER THIS LAWSUIT WAS
FILED, THE DEFENDANT'S LAWYERS FILED STILL MORE INTERROGATORIES FOR
PLAINTIFF TO ANSWER.  ONE MONTH AND FOUR DAYS LATER AFTER AN EXTENSION
OF TIME GRANTED BY THE TRIAL COURT, THESE INTERROGATORIES WERE
ANSWERED.  THIS CERTAINLY DOES NOT SEEM LIKE AN EXTRAORDINARY DELAY IN
ANSWERING INTERROGATORIES WHICH APPARENTLY HAD TAKEN THE DEFENDANT SIX
YEARS TO CONCEIVE AND PREPARE. 

FIVE MONTHS AFTER THE PLAINTIFF ANSWERED DEFENDANT'S MARCH 11
INTERROGATORIES, THE TRIAL JUDGE, AGAIN ON HIS OWN MOTION, ISSUED
NOTICE SCHEDULING A PRETRIAL CONFERENCE ON OCTOBER 12, 1960.  THIS WAS
THE PRETRIAL CONFERENCE AT WHICH PETITIONER'S LAWYER FAILED TO APPEAR. 
BUT EVEN THAT FAILURE SHOWED NO INCLINATION ON THE PART OF THE
PLAINTIFF OR HIS LAWYER TO ABANDON THE LAWSUIT, FOR THE LAWYER CALLED
THE CLERK OF THE DISTRICT COURT OVER LONG-DISTANCE TELEPHONE AND ALSO
TALKED TO THE TRIAL JUDGE'S SECRETARY ON THE MORNING OF THE DAY OF THE
CONFERENCE TO EXPLAIN WHY HE COULD NOT BE PRESENT ON OCTOBER 12 AND TO
URGE THAT THE PRETRIAL CONFERENCE BE PASSED OVER TO THE NEXT DAY,
OCTOBER 13, TO GIVE HIM A CHANCE TO BE PRESENT.  IT IS TRUE THAT THE
TRIAL JUDGE LATER REFUSED TO ACCEPT THE LAWYER'S EXPLANATION AND THIS
RULING, IF CORRECT, INDICATES THAT THE LAWYER MAY HAVE BEEN GUILTY OF
SOME KIND OF BREACH OF HIS RESPONSIBILITY TO HIS CLIENT AND TO THE
COURT.  IT DOES NOT INDICATE, HOWEVER, AND IT CANNOT BY ANY STRETCH OF
THE IMAGINATION BE MADE TO INDICATE THAT THE LAWYER, MUCH LESS THE
PLAINTIFF HIMSELF, WAS ACTING IN THE WAY PEOPLE DO WHO LET THEIR
LAWSUITS DIE FOR "WANT OF PROSECUTION."  THE RECORD SHOWS THAT NEITHER
THE LAWYER NOR THE PLAINTIFF HIMSELF WAS GIVEN ANY SORT OF NOTICE BY
THE JUDGE OR BY HIS SECRETARY THAT THE REQUEST FOR A ONE-DAY
POSTPONEMENT WOULD BE DENIED, EVEN THOUGH THE DEFENDANT'S REQUEST FOR
INDEFINITE POSTPONEMENT HAD BEEN GRANTED ONLY THREE MONTHS EARLIER. 
NOR DID THE LAWYER OR THE PLAINTIFF RECEIVE ANY NOTICE THAT A FAILURE
TO APPEAR AT THE PRETRIAL CONFERENCE WOULD RESULT IN THE DRASTIC
SANCTION OF DISMISSAL OF THE CASE.  (FN10)  AND I THINK THAT NOTHING
SHORT OF CLAIRVOYANCE WOULD HAVE ENABLED EITHER OF THEM TO ANTICIPATE
THAT THIS COURT, OR ANY COURT, WOULD APPROVE DISMISSAL OF THE CASE FOR
"WANT OF PROSECUTION." 

UNDER THE FOREGOING FACTS, IT SEEMS TO ME THAT IT INFLICTS THE
GROSSEST KIND OF INJUSTICE UPON THIS PETITIONER TO UPHOLD DISMISSAL OF
HIS CASE ON THE GROUND THAT IT WAS NOT BEING PROSECUTED.  OF COURSE IT
WAS.  COUNSEL FOR BOTH PARTIES APPARENTLY WERE DOING THE BEST THEY
COULD TO BRING THE CASE TO A SUCCESSFUL CONCLUSION FOR THEIR RESPECTIVE
CLIENTS.  THE "EARLIER DELAYS" PRECEDING THE PLAINTIFF'S LAWYER'S
FAILURE TO APPEAR AT THE PRETRIAL HEARING, FAR FROM SHOWING A "WANT OF
PROSECUTION," ACTUALLY STRENGTHEN THE CONCLUSION THAT THE CASE WAS
BEING PROSECUTED BECAUSE BY FAR THE GREATER PART OF THESE DELAYS WAS
DUE TO STEPS THAT WERE BEING TAKEN IN FURTHERANCE OF THE LITIGATION. 
ONLY THE TWO CONTINUANCES IN THE CASE, ONE AT THE REQUEST OF COUNSEL
FOR THE PLAINTIFF AND THE SECOND AT THE REQUEST OF COUNSEL FOR THE
DEFENDANT, CREATED DELAYS NOT OBVIOUSLY RELATED TO THAT END.  AND IF
THESE DELAYS ARE TO BE PUNISHED, I SEE NO REASON WHY THE PUNISHMENT
SHOULD BE LIMITED TO THE PLAINTIFF AND HIS LAWYER.  I MUST SAY THAT IT
APPEARS TO ME TO BE A SORT OF UNEQUAL JUSTICE THAT WOULD PUNISH THE
PLAINTIFF OR EVEN HIS LAWYER FOR "EARLIER DELAYS" WHICH UNDOUBTEDLY
WERE DUE IN MAJOR PART TO AN ERRONEOUS RULING OF THE TRIAL JUDGE WITH
REGARD TO THE SUFFICIENCY OF THE PLEADINGS, A CONTINUANCE OF THE TRIAL
BROUGHT ABOUT AT THE REQUEST OF THE DEFENDANT, AND THE SEVERAL MOTIONS
THAT THE DEFENDANT'S COUNSEL MADE ALONG THROUGH THE YEARS IN CONNECTION
WITH INTERROGATORIES AND ADDITIONAL INTERROGATORIES WHICH WERE TO BE
USED FOR NO PURPOSE OTHER THAN TO DEFEAT THE PLAINTIFF'S ACTIVELY
PROSECUTED LAWSUIT. 

EVEN ASSUMING IN THE FACE OF THESE PLAIN FACTS, HOWEVER, THAT ALL THE
BLAME FOR THE SIX YEARS' DELAY IN THIS CASE COULD BE LAID AT THE FEET
OF PLAINTIFF'S LAWYER, IT SEEMS TO ME TO BE CONTRARY TO THE MOST
FUNDAMENTAL IDEAS OF FAIRNESS AND JUSTICE TO IMPOSE THE PUNISHMENT FOR
THE LAWYER'S FAILURE TO PROSECUTE UPON THE PLAINTIFF WHO, SO FAR AS
THIS RECORD SHOWS, WAS SIMPLY TRUSTING HIS LAWYER TO TAKE CARE OF HIS
CASE AS CLIENTS GENERALLY DO.  THE COURT DISMISSES THIS WHOLE QUESTION
OF PUNISHING THE PLAINTIFF LINK FOR THE ALLEGED FAULT OF HIS LAWYER
WITH THE SIMPLE GENERALIZED STATEMENT: PETITIONER VOLUNTARILY CHOSE
THIS ATTORNEY AS HIS REPRESENTATIVE IN THE ACTION, AND HE CANNOT NOW
AVOID THE CONSEQUENCES OF THE ACTS OR OMISSIONS OF THIS FREELY SELECTED
AGENT."  (FN11)  ONE MAY READILY ACCEPT THE STATEMENT THAT THERE ARE
CIRCUMSTANCES UNDER WHICH A CLIENT IS RESPONSIBLE FOR THE ACTS OR
OMISSIONS OF HIS ATTORNEY.  BUT IT STRETCHES THIS GENERALIZED STATEMENT
TOO FAR TO SAY THAT HE MUST ALWAYS DO THAT.  THIS CASE IS A GOOD
ILLUSTRATION OF THE DEPLORABLE KIND OF INJUSTICE THAT CAN COME FROM THE
ACCEPTANCE OF ANY SUCH MECHANICAL RULE. 

LINK FILED AN ACTION IN COURT, AS WAS HIS RIGHT, ALLEGING THE
INFLICTION OF SERIOUS INJURIES UPON HIM BY THE RAILROAD FOR WHICH HE
SOUGHT DAMAGES.  HIS CASE WAS DELAYED FOR THREE YEARS BECAUSE OF THE
TRIAL JUDGE'S ERRONEOUS RULING ON A QUESTION OF THE TECHNICAL
SUFFICIENCY OF THE COMPLAINT, A RULING WHICH, IF IT HAD NOT BEEN
REVERSED, WOULD HAVE FRUSTRATED THE PLAINTIFF'S RIGHT TO A TRIAL ON THE
MERITS.  THIS RULING OF COURSE SHOULD NEVER HAVE BEEN MADE, FOR IT WAS
PLAINLY INCONSISTENT WITH THE WHOLE PHILOSOPHY UNDERLYING THE MODERN
LIBERAL RULES OF PROCEDURE WHICH GOVERN CIVIL TRIALS IN THE FEDERAL
COURTS.  WHEN THE COURT OF APPEALS UPHELD THE COMPLAINT, REVERSED THE
TRIAL COURT AND REMANDED THE CASE FOR TRIAL, THE PARTIES ENGAGED IN A
NUMBER OF ACTIVITIES OBVIOUSLY DESIGNED TO BRING THE CASE TO TRIAL.  ON
AT LEAST TWO SEPARATE OCCASIONS, THE PLAINTIFF HIMSELF WAS CALLED UPON
TO RESPOND TO INTERROGATORIES SUBMITTED BY THE RAILROAD.  UNDER THESE
CIRCUMSTANCES, THE PLAINTIFF SIMPLY HAD NO WAY OF KNOWING THAT THERE
WAS EVEN THE SLIGHTEST DANGER THAT HIS POTENTIALLY VALUABLE LAWSUIT WAS
GOING TO BE THROWN OUT OF COURT BECAUSE OF SOME DEFAULT ON THE PART OF
HIS LAWYER.  QUITE THE CONTRARY, THE PLAINTIFF HAD EVERY REASON TO
BELIEVE THAT HIS LAWYER, WHO HAD OBTAINED REVERSAL OF THE TRIAL JUDGE'S
FIRST ERRONEOUS ORDER OF DISMISSAL IN THE COURT OF APPEALS, WAS
EMINENTLY WELL QUALIFIED TO REPRESENT HIS INTERESTS AND WOULD DO HIS
BEST TO WIN THE LAWSUIT. 

THERE SURELY CAN BE NO DOUBT THAT IF THE PLAINTIFF'S LAWYER HAD GONE
INTO COURT WITHOUT AUTHORITY AND ASKED THE COURT TO DISMISS THE CASE SO
AS TO BAR ANY FUTURE SUIT FROM BEING FILED, THIS COURT WOULD REPUDIATE
SUCH CONDUCT AND GIVE THE PLAINTIFF A REMEDY FOR THE WRONG SO
PERPETRATED AGAINST HIM.  OR HAD THE TRIAL JUDGE HERE, INSTEAD OF
PUTTING AN END TO PLAINTIFF'S SUBSTANTIAL CAUSE OF ACTION, SIMPLY
IMPOSED A FINE OF SEVERAL THOUSAND DOLLARS UPON THE PLAINTIFF BECAUSE
OF HIS LAWYER'S NEGLECT, I CANNOT DOUBT THAT THIS COURT WOULD
UNANIMOUSLY REVERSE SUCH AN UNJUST PENALTY.  THE RESULT ACTUALLY
REACHED HERE, HOWEVER, IS THAT THIS COURT CONDONES A SITUATION NO
DIFFERENT IN FACT FROM EITHER OF THOSE DESCRIBED ABOVE.  THE
PLAINTIFF'S CAUSE OF ACTION IS VALUABLE PROPERTY WITHIN THE GENERALLY
ACCEPTED SENSE OF THAT WORD, AND, AS SUCH, IT IS ENTITLED TO THE
PROTECTIONS OF THE CONSTITUTION.  DUE PROCESS REQUIRES THAT PROPERTY
SHALL NOT BE TAKEN AWAY WITHOUT NOTICE AND HEARING.  I DO NOT SEE HOW
THE RESULT HERE CAN BE SQUARED WITH THAT FUNDAMENTAL CONSTITUTIONAL
REQUIREMENT. 

MOREOVER, TO SAY THAT THE SINS OR FAULTS OR DELINQUENCIES OF A LAWYER
MUST ALWAYS BE VISITED UPON HIS CLIENT SO AS TO IMPOSE TREMENDOUS
FINANCIAL PENALTIES UPON HIM, AS HERE, IS TO IGNORE THE PRACTICALITIES
AND REALITIES OF THE LAWYER-CLIENT RELATIONSHIP.  (FN12)  LAWYERS
EVERYWHERE IN THIS COUNTRY ARE GRANTED LICENSES PRESUMABLY BECAUSE OF
THEIR SKILL, THEIR INTEGRITY, THEIR LEARNING IN THE LAW AND THEIR
DEPENDABILITY.  WHILE THERE MAY BE SOME CLIENTS SOPHISTICATED ENOUGH IN
THE AFFAIRS OF THE WORLD TO BE ABLE TO SELECT THE GOOD FROM THE BAD
AMONG THIS MASS OF LAWYERS THROUGHOUT THE COUNTRY, THIS UNFORTUNATELY
CANNOT ALWAYS BE THE CASE.  THE AVERAGE INDIVIDUAL CALLED UPON, PERHAPS
FOR THE FIRST TIME IN HIS LIFE, TO SELECT A LAWYER TO TRY A LAWSUIT MAY
HAPPEN TO CHOOSE THE BEST LAWYER OR HE MAY HAPPEN TO CHOOSE ONE OF THE
WORST.  HE HAS A RIGHT TO RELY AT LEAST TO SOME EXTENT UPON THE FACT
THAT A LAWYER HAS A LICENSE.  FROM THIS HE IS ALSO ENTITLED TO BELIEVE
THAT THE LAWYER HAS THE ABILITY TO LOOK OUT FOR HIS CASE AND THAT HE
SHOULD LEAVE THE LAWYER FREE FROM CONSTRAINT IN DOING SO.  SURELY IT
CANNOT BE SAID THAT THERE WAS A DUTY RESTING UPON LINK, A LAYMAN
PLAINTIFF, TO TRY TO SUPERVISE THE DAILY PROFESSIONAL SERVICES OF THE
LAWYER HE HAD CHOSEN TO REPRESENT HIM.  HOW COULD HE KNOW, EVEN
ASSUMING THAT IT IS TRUE, THAT HIS LAWYER WAS A CARELESS MAN OR THAT HE
WOULD HAVE AN ADVERSE EFFECT UPON THE TRIAL JUDGE BY FAILING TO APPEAR
WHEN ORDERED?  HOW COULD HE KNOW OR WHY SHOULD HE BE PRESUMED TO KNOW
THAT IT WAS HIS DUTY TO SEE THAT THE MANY STEPS A LAWYER NEEDS TO TAKE
TO BRING HIS CASE TO TRIAL HAD BEEN TAKEN BY HIS LAWYER?  WHY SHOULD A
CLIENT BE AWAKENED TO HIS LAWYER'S INCAPACITY FOR THE FIRST TIME BY A
SUDDEN BRUTAL PRONOUNCEMENT OF THE COURT: "YOUR LAWYER HAS FAILED TO
PERFORM HIS DUTY IN PROSECUTING YOUR CASE AND WE ARE THEREFORE THROWING
YOU OUT OF COURT ON YOUR HEELS"?  SO FAR AS THIS RECORD SHOWS, THE
PLAINTIFF NEVER RECEIVED ONE IOTA OF INFORMATION OF ANY KIND, CHARACTER
OR TYPE THAT SHOULD HAVE PUT HIM ON NOTICE AS AN ORDINARY LAYMAN THAT
HIS LAWYER WAS NOT DOING HIS DUTY.  (FN13) 

ANY GENERAL RULE THAT CLIENTS MUST ALWAYS SUFFER FOR THE MISTAKES OF
THEIR LAWYERS SIMPLY IGNORES ALL THESE PROBLEMS.  IF A GENERAL RULE IS
TO BE ADOPTED, I THINK IT WOULD BE FAR BETTER IN THE INTEREST OF THE
ADMINISTRATION OF JUSTICE, AND FAR MORE REALISTIC IN THE LIGHT OF WHAT
THE RELATIONSHIP BETWEEN A LAWYER AND HIS CLIENT ACTUALLY IS, TO ADOPT
THE RULE THAT NO CLIENT IS EVER TO BE PENALIZED, AS THIS PLAINTIFF HAS
BEEN, BECAUSE OF THE CONDUCT OF HIS LAWYER UNLESS NOTICE IS GIVEN TO
THE CLIENT HIMSELF THAT SUCH A THREAT HANGS OVER HIS HEAD.  SUCH A RULE
WOULD DO NOTHING MORE THAN INCORPORATE BASIC CONSTITUTIONAL
REQUIREMENTS OF FAIRNESS INTO THE ADMINISTRATION OF JUSTICE IN THIS
COUNTRY. 

THE COURT SEEMS TO FIND SOME REASON FOR HOLDING THAT THIS PLAINTIFF
CAN BE PENALIZED WITHOUT NOTICE BECAUSE OF A PROGRAM CERTAIN COURTS
HAVE ADOPTED TO END CONGESTION ON THEIR DOCKETS BY SETTING DOWN LONG
PENDING CASES FOR TRIAL.  IT IS OF COURSE DESIRABLE THAT THE CONGESTION
ON COURT DOCKETS BE REDUCED IN EVERY WAY POSSIBLE CONSISTENT WITH THE
FAIR ADMINISTRATION OF JUSTICE.  BUT THAT LAUDABLE OBJECTIVE SHOULD NOT
BE SOUGHT IN A WAY WHICH UNDERCUTS THE VERY PURPOSES FOR WHICH COURTS
WERE CREATED - THAT IS, TO TRY CASES ON THEIR MERITS AND RENDER
JUDGMENTS IN ACCORDANCE WITH THE SUBSTANTIAL RIGHTS OF THE PARTIES. 
WHERE A CASE HAS SO LITTLE MERIT THAT IT IS NOT BEING PROSECUTED, A
TRIAL COURT CAN OF COURSE PROPERLY DISPOSE OF IT UNDER FAIR
CONSTITUTIONAL PROCEDURES.   THERE IS NOT ONE FACT IN THIS RECORD,
HOWEVER, FROM WHICH AN INFERENCE CAN BE DRAWN THAT THE CASE OF LINK
AGAINST THE WABASH RAILROAD COMPANY IS SUCH A CASE.  WHEN WE ALLOW THE
DESIRE TO REDUCE COURT CONGESTION TO JUSTIFY THE SACRIFICE OF
SUBSTANTIAL RIGHTS OF THE LITIGANTS IN CASES LIKE THIS, WE ATTEMPT TO
PROMOTE SPEED IN ADMINISTRATION, WHICH IS DESIRABLE, AT THE EXPENSE OF
JUSTICE, WHICH IS INDISPENSABLE TO ANY COURT SYSTEM WORTHY OF ITS
NAME. 

MOREOVER, IT SEEMS PLAIN TO ME THAT ANY ATTEMPT TO CUT DOWN ON COURT
CONGESTION BY DISMISSING MERITORIOUS LAWSUITS IS DOOMED TO FAIL EVEN IN
ITS MISGUIDED PURPOSE OF PROMOTING SPEED IN JUDICIAL ADMINISTRATION. 
LITIGANTS WITH MERITORIOUS LAWSUITS ARE NOT LIKELY TO ACCEPT UNFAIR
RULINGS OF THAT KIND WITHOUT EXHAUSTING ALL AVAILABLE APPELLATE
REMEDIES.  CONSEQUENTLY, ANY REDUCTION OF TRIAL COURT DOCKETS
ACCOMPLISHED BY SUCH DISMISSALS WILL BE MORE THAN OFFSET BY THE
INCREASED BURDEN ON APPELLATE COURTS.  THIS CASE SEEMS TO ME AN
EXCELLENT EXAMPLE OF THE SORT OF WHOLLY UNNECESSARY WASTE OF JUDICIAL
RESOURCES WHICH CAN RESULT FROM SUCH OVERZEALOUS PROTECTION OF TRIAL
COURT DOCKETS.  THE CASE HAS TWICE BEEN BEFORE THE COURT OF APPEALS AND
HAS TWICE BEEN BROUGHT TO THIS COURT AS A RESULT OF "TIME-SAVING"
RULINGS HANDED DOWN BY THE TRIAL JUDGE. 

IT IS TRUE THAT BY ITS RULING TODAY THE COURT FINALLY PUTS AN END TO
THIS CASE AND THUS CLEARS IT FROM ALL FEDERAL DOCKETS.  BUT IN VIEW OF
THE FACT THAT THE MERITS OF THE CASE HAVE NEVER BEEN REACHED, I CANNOT
BELIEVE THAT THERE SHOULD BE TOO MUCH REJOICING AT THIS FACT.  THE END
RESULT OF THE PROCEDURES ADOPTED HERE HAS BEEN THAT MUCH TIME HAS BEEN
WASTED AND YET NO JUSTICE HAS BEEN DONE.  I FIND IT HIGHLY REGRETTABLE
THAT THE COURT FEELS COMPELLED TO PLACE ITS STAMP OF APPROVAL UPON SUCH
PROCEDURES.    IT MAY NOT BE OF MUCH IMPORTANCE TO ANYONE OTHER THAN
THE PLAINTIFF HERE AND HIS FAMILY WHETHER THIS CASE IS TRIED ON ITS
MERITS OR NOT.  TO MY MIND, HOWEVER, IT IS OF VERY GREAT IMPORTANCE TO
EVERYONE IN THIS COUNTRY THAT WE DO NOT ESTABLISH THE PRACTICE OF
THROWING LITIGANTS OUT OF COURT WITHOUT NOTICE TO THEM SOLELY BECAUSE
THEY ARE CREDULOUS ENOUGH TO ENTRUST THEIR CASES TO LAWYERS WHOSE NAMES
ARE ACCREDITED AS WORTHY AND CAPABLE BY THEIR GOVERNMENT.  I FEAR THAT
THIS CASE IS NOT LIKELY TO STAND OUT IN THE FUTURE AS THE BEST EXAMPLE
OF AMERICAN JUSTICE. 

FN1  SINCE THE ORDER OF DISMISSAL HERE DID NOT SPECIFY THAT IT WAS
WITHOUT PREJUDICE TO THE PLAINTIFF'S RIGHT TO REINSTITUTE THE ACTION,
THE DISMISSAL OPERATES AS A JUDGMENT ON THE MERITS IF RULE 41(B) OF THE
FEDERAL RULES OF CIVIL PROCEDURES APPLIES.  OF COURSE, IF RULE 41(B) IS
NOT THE SOURCE OF THE POWER EXERCISED HERE, AS THIS COURT SEEMS TO SAY,
THE ORDER OF DISMISSAL WOULD STILL END PLAINTIFF'S CHANCE OF RECOVERY
BECAUSE HIS CAUSE OF ACTION IS NOW BARRED BY THE STATUTE OF
LIMITATIONS. 

FN2  291 F.2D 542, 548. 

FN3  THE ORDER OF DISMISSAL STATED AS FOLLOWS:  "PURSUANT TO THE
INHERENT POWERS OF THE COURT, AND UPON FAILURE OF PLAINTIFF'S COUNSEL
TO APPEAR AT A PRE-TRIAL, WHICH WAS SCHEDULED FOR TODAY, OCTOBER 12,
1960, AT 1:00 O'CLOCK, PURSUANT TO NOTICE, UNDER RULE 12, COUNSEL
HAVING FAILED TO GIVE ANY GOOD AND SUFFICIENT REASON FOR NOT APPEARING
AT SAID PRE-TRIAL, THE CAUSE IS NOW DISMISSED." 

FN4  291 F.2D, AT 543. 

FN5  ID., AT 546.  IT IS TRUE THAT THE COURT OF APPEALS SET OUT THE
HISTORY OF THE CASE BUT IT MADE NO ATTEMPT TO RELY UPON THAT HISTORY TO
JUSTIFY ITS JUDGEMNT OF AFFIRMANCE.  ITS REFERENCES TO THE
"CIRCUMSTANCES" OF THE CASE QUOTED IN THE COURT'S OPINION SIMPLY CANNOT
BE MAGNIFIED TO INDICATE ANY SUCH RELIANCE. 

FN6  ID., AT 545. 

FN7  ID., AT 547. 

FN8  237 F.2D 1. 

FN9  352 U.S. 1003. 

FN10  THUS, EVEN UNDER THE COURT'S THEORY THAT A CLIENT MUST ALWAYS
BE CHARGED WITH "'NOTICE OF ALL FACTS, NOTICE OF WHICH CAN BE CHARGED
UPON THE ATTORNEY,'" THE PLAINTIFF HERE CANNOT BE CHARGED WITH NOTICE
THAT HIS LAWSUIT WOULD BE DISMISSED UPON THE FAILURE OF HIS LAWYER TO
APPEAR AT THE PRETRIAL CONFERENCE. 

FN11  THE COURT DOES CITE THREE CASES IN AN EFFORT TO SUPPORT THIS
GENERAL PROPOSITION BUT NONE OF THOSE CASES EVEN SUGGESTS SO HARSH AND
EXPANSIVE A RULE.  MOREOVER, THEY DEAL WITH SITUATIONS SO FAR REMOVED
FROM THAT PRESENTED HERE THAT THEIR INAPPLICABILITY AS PRECEDENT FOR
THE CONCLUSION REACHED IN THIS CASE IS APPARENT.  UNITED STATES EX REL.
REID V. RICHMOND, 295 F.2D 83, AND UNITED STATES V. SORRENTINO, 175
F.2D 721, WERE CRIMINAL CASES IN EACH OF WHICH THE DEFENDANT SOUGHT TO
UPSET HIS CONVICTION ON THE GROUND THAT HIS LAWYERS HAD EXERCISD POOR
JUDGMENT IN HANDLING ONE OF THE MULTITUDE OF DECISIONS THAT HAVE TO BE
MADE IN THE TRIAL OF EVERY LAWSUIT.  REID'S LAWYERS HAD FAILED TO MAKE
AN OBJECTION TO ONE PIECE OF EVIDENCE.  THE COURT OF APPEALS, FINDING
THAT THIS ACTION "HAD MUCH TO COMMEND IT" AS TRIAL STRATEGY, HELD THAT
ANY OBJECTION TO THE EVIDENCE MUST BE CONSIDERED WAIVED AND THAT "REID
MUST BE BOUND BY WHAT HIS LAWYERS DID AND HIS ACQUIESCENCE IN THAT
COURSE BY HIS OWN TESTIMONY."  295 F.2D, AT 89-90.  EVEN THIS HOLDING
PROVOKED SHARP DISSENT:  "A HOLDING THAT COUNSEL ASSIGNED AN ACCUSED
MAY WAIVE HIM INTO THE ELECTRIC CHAIR SEEMS IN ANY EVENT DUBIOUS." 
ID., AT 90-91.  SORRENTINO'S LAWYERS WAIVED HIS RIGHT TO OBJECT TO AN
ORDER OF THE TRIAL JUDGE REDUCING THE NUMBER OF SPECTATORS AT HIS
TRIAL.  THE COURT OF APPEALS HELD THAT SORRENTINO WAS BOUND BY THIS
WAIVER, SAYING:  "SORRENTINO DID NOT AT ANY TIME INDICATE TO THE COURT
THAT HE WAS NOT FULLY SATISFIED WITH THE ACTION WHICH THE TRIAL JUDGE
HAD THUS TAKEN WITH HIS COUNSEL'S CONSENT.  IT MUST, THEREFORE, BE
CONCLUDED THAT HE ACQUIESCED IN HIS COUNSEL'S JUDGMENT THAT HIS
INTERESTS WOULD NOT BE PREJUDICED AND INDEED MIGHT BE SERVED BY THE
REDUCTION WHICH THE COURT ORDERED IN THE NUMBER OF SPECTATORS AT THE
TRIAL."  175 F.2D, AT 723-724.  CERTAINLY NO ONE COULD SAY OF LINK, AS
IT WAS SAID OF SORRENTINO, THAT "HIS INTERESTS WOULD NOT BE PREJUDICED
AND INDEED MIGHT BE SERVED" BY THE DISMISSAL OF HIS CASE.  EGAN V.
TEETS, 251 F.2D 571, INVOLVED AN ALLEGATION THAT THE DEFENDANT'S
ORIGINAL APPEAL PAPERS HAD BEEN SUPPRESSED AND THE COURT HELD MERELY
THAT THE FAILURE OF THE DEFENDANT'S COUNSEL TO RAISE THIS POINT IN THE
STATE COURTS AFTER THE DEFENDANT HIMSELF KNEW OF THE ALLEGED
SUPPRESSION PLUS THE FAILURE OF THE DEFENDANT TO OFFER ANY EXPLANATION
FOR NOT RAISING THE POINT IN THE STATE COURTS MUST BE TAKEN AS WAIVING
THE POINT.  251 F.2D, AT 576-577.  HERE, IT CANNOT BE SUGGESTED THAT
PLAINTIFF'S COUNSEL HAS WAIVED THE PLAINTIFF'S RIGHT TO HAVE HIS
LAWSUIT TRIED, SINCE HE HAS BEEN HOLDING ON TENACIOUSLY TO THAT RIGHT
FOR EIGHT YEARS, FOUR OF WHICH HAVE BEEN SPENT IN TRYING TO GET THE
COURT OF APPEALS AND THIS COURT TO FORCE THE TRIAL JUDGE TO GIVE HIM A
TRIAL ON THE MERITS.  CERTAINLY, NOTHING IN THE OPINION IN EGAN
SUGGESTS THAT IF THE DEFENDANT HAD BEEN ABLE TO ALLEGE AND PROVE THAT
HIS APPEAL PAPERS HAD BEEN SUPPRESSED BY WRONGFUL CONDUCT ON THE PART
OF HIS LAWYER, HE WOULD NONETHELESS BE BOUND BY THAT CONDUCT. 

FN12  I AM NOT QUITE ABLE TO UNDERSTAND THE COURT'S SUGGESTION THAT
"KEEPING THIS SUIT ALIVE  ... WOULD BE VISITING THE SINS OF PLAINTIFF'S
LAWYER UPON THE DEFENDANT."  I DO NOT SEE HOW IT CAN BE REGARDED AS A
PUNISHMENT TO COMPEL A PERSON TO TRY HIS LAWSUIT ON ITS MERITS BEFORE
AN IMPARTIAL TRIBUNAL ESTABLISHED UNDER AND OPERATING IN ACCORDANCE
WITH THE CONSTITUTION OF THE UNITED STATES. 

FN13  THE COURT'S SUGGESTION THAT PETITIONER MIGHT HAVE BEEN ABLE TO
FILE A MOTION UNDER RULE 60(B) "ACCOMPANIED BY A MORE ADEQUATE
EXPLANATION FOR THE ABSENCE OF PETITIONER'S COUNSEL FROM THE PRETRIAL
CONFERENCE" IS NO ANSWER AT ALL TO THE PROBLEM PRESENTED BY THE
PLAINTIFF'S LACK OF NOTICE.   WHETHER THE LAWYER HAD "A MORE ADEQUATE
EXPLANATION" OR NOT, I THINK THE PLAINTIFF HIMSELF IS ENTITLED TO DUE
PROCESS BEFORE HIS PROPERTY IS TAKEN FROM HIM. 
..END :























GILBERT V. UNITED STATES 370 U.S. 650 


NO. 478.  ARGUED APRIL 10, 1962 - DECIDED JUNE 25, 1962 - 291 F.2D 586,
JUDGMENT VACATED AND CAUSE REMANDED. 


ONE WHO ENDORSES A GOVERNMENT CHECK BY SIGNING THE NAME OF THE PAYEE
AND THEN HIS OWN, AS AGENT, WHEN IN FACT HE HAS NO SUCH AUTHORITY, IS
NOT THEREBY GUILTY OF FORGERY UNDER 18 U.S.C. SEC. 495.  PP. 650-659. 

(A)  ON THE RECORD IN THIS CASE, INCLUDING THE JUDGE'S INSTRUCTIONS,
THE JURY'S VERDICT OF GUILTY MIGHT HAVE BEEN BASED ON A FINDING THAT
PETITIONER HAD PURPORTED TO MAKE AN AGENCY ENDORSEMENT.  PP. 653-655. 

(B)  THE WORD "FORGES" IN SEC. 495 WAS INTENDED TO HAVE ITS COMMON
LAW MEANING, AND IT DOES NOT INCLUDE A PURPORTED BUT UNAUTHORIZED
AGENCY ENDORSEMENT.  PP. 655-659. 

GILBERT V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AN ACCOUNTANT WHOSE BUSINESS INCLUDED ACTING FOR OTHERS
IN FEDERAL INCOME TAX MATTERS, WAS CHARGED IN A THIRTY-FIVE-COUNT
INDICTMENT WITH VIOLATIONS OF 26 U.S.C.  SEC. 7206(2), 18 U.S.C. SEC.
1001, AND 18 U.S.C. SEC. 495, IN THAT HE HAD ALLEGEDLY FALSIFIED HIS
CLIENTS' RETURNS (SEC. 7206(2)), FORGED THEIR ENDORSEMENTS ON
GOVERNMENT TAX-REFUND CHECKS (SEC. 495), AND, BY ENDORSING SUCH CHECKS,
HAD MADE FALSE STATEMENTS AS TO A MATTER WITHIN THE JURISDICTION OF A
GOVERNMENT AGENCY (SEC. 1001).  THE JURY CONVICTED ON THIRTY-ONE COUNTS
AND ACQUITTED ON FOUR OTHERS.  ON APPEAL, 291 F.2D 586, 597, THE
JUDGMENT OF CONVICTION WAS SET ASIDE AS TO TWENTY-NINE COUNTS, AND A
NEW TRIAL ORDERED, BECAUSE THE COURT OF APPEALS FOUND THAT EVIDENCE
USED BY THE GOVERNMENT IN SUPPORT OF THESE COUNTS HAD BEEN ILLEGALLY
SEIZED.  THE JUDGMENT AS TO THE REMAINING TWO COUNTS (NOS. 21 AND 22),
CHARGING THE PETITIONER WITH HAVING FORGED THE ENDORSEMENTS OF DANIEL
H. BARTFIELD AND CHARLINE R. BARTFIELD ON TWO GOVERNMENT REFUND CHECKS
(18 U.S.C. SEC. 495), WAS AFFIRMED.  (FN1) 

IT WAS STIPULATED AT THE TRIAL THAT PETITIONER HAD ENDORSED IN HIS
OWN HANDWRITING THE TWO CHECKS, MADE OUT TO:

"DANIEL H & CHARLENE R BARTFIELD

 C/O R MILO GILBERT

                           519 TAFT BUILDING

                           HOLLYWOOD 28 CALIF" IN THE FOLLOWING
MANNER:

                           "DANIEL H. BARTFIELD

                           CHARLINE R. BARTFIELD

                           R. MILO GILBERT, TRUSTEE."  (FN2) 

PETITIONER CLAIMED THAT A WRITTEN POWER OF ATTORNEY, ALLEGEDLY SIGNED
BY BOTH BARTFIELDS IN HIS OFFICE, AUTHORIZED HIM TO ENDORSE TAX-REFUND
CHECKS, AND THAT "TRUSTEE" AFTER HIS NAME SERVED TO DESIGNATE THE
PARTICULAR BANK ACCOUNT WHERE HE DEPOSITED AND HELD ALL CLIENT REFUNDS
UNTIL DECEMBER OF EACH YEAR, AGAINST THE POSSIBILITY OF THERE BEING A
REFUND ADJUSTMENT AND UNTIL HIS CONTINGENT FEE WAS SETTLED.  THE
BARTFIELDS ACKNOWLEDGED THAT THE SIGNATURES ON THE POWER OF ATTORNEY
WERE THEIRS, BUT DISCLAIMED RECOLLECTION OF SIGNING THE INSTRUMENT, AND
DENIED THAT THEY EVER AUTHORIZED PETITIONER ORALLY OR IN WRITING TO
RECEIVE OR ENDORSE CHECKS.  (FN3) 

ON THESE PREMISES, THE COURT OF APPEALS, CONCLUDING THAT THE EVIDENCE
WAS SUFFICIENT TO PERMIT THE JURY TO FIND THAT PETITIONER HAD ENDORSED
THE CHECKS WITHOUT AUTHORITY (A CONCLUSION WHICH FOR PRESENT PURPOSES
WE ACCEPT), HELD THAT ONE WHO ENDORSES A GOVERNMENT CHECK BY SIGNING
THE NAME OF THE PAYEE AND THEN HIS OWN, AS AGENT, WHEN IN FACT HE HAS
NO SUCH AUTHORITY, IS GUILTY OF FORGERY UNDER SEC. 495.  WE GRANTED
CERTIORARI TO CONSIDER THE CORRECTNESS OF THAT VIEW OF THE STATUTE. 
368 U.S. 816.  WHILE NOT MENTIONED IN THE PETITION FOR CERTIORARI,
THOUGH DISCUSSED IN THE BRIEFS ON THE MERITS, THE COURT OF APPEALS FOR
THE TENTH CIRCUIT, AFTER THE COURT OF APPEALS' DECISION IN THE PRESENT
CASE, HELD THAT "FORGERY" UNDER SEC. 495 DOES NOT EMBRACE A PURPORTED,
BUT MISREPRESENTED, AGENCY ENDORSEMENT (HEREAFTER CALLED SIMPLY AN
"AGENCY ENDORSEMENT").  SELVIDGE V. UNITED STATES, 290 F.2D 894.  FOR
REASONS GIVEN IN THIS OPINION WE AGREE WITH THE TENTH CIRCUIT. 

                                          I. 

AT THE OUTSET WE ARE MET WITH THE GOVERNMENT'S SUGGESTION THAT THE
STATUTORY CONSTRUCTION QUESTION NEED NOT BE FACED IN THIS CASE.  BEFORE
THE COURT OF APPEALS, AS IN THE PETITION FOR CERTIORARI, IT WAS ASSUMED
BY ALL THAT THE TWO CHECKS (WHICH AFTER THE TRIAL AND BEFORE THE CASE
REACHED THIS COURT HAD FOR SOME REASON BECOME MISLAID) HAD BEEN
ENDORSED "BY R. MILO GILBERT, TRUSTEE."  THAT WAS A MISTAKEN ASSUMPTION
FOR, AS THE CHECKS THEMSELVES SHOW (SUPRA, P. 651), THERE WAS NO "BY"
BEFORE "R. MILO GILBERT, TRUSTEE." 

ARGUING THAT THE JURY MIGHT HAVE FOUND THAT THE WORD "TRUSTEE" AFTER
GILBERT'S SIGNATURE DID NOT PURPORT TO INDICATE AN AGENCY ENDORSEMENT,
BUT WAS MERELY INTENDED AS A DESIGNATION FOR ROUTING THE CHECKS FOR
DEPOSIT IN ONE OF GILBERT'S "CLIENT" BANK ACCOUNTS, THE GOVERNMENT
SUGGESTS THAT A PLAIN CASE OF FORGERY IS MADE OUT, AND THE AGENCY
ENDORSEMENT QUESTION IS NOT IN TRUTH PRESENTED BY THE RECORD. 

WE CANNOT SO EASILY DISPOSE OF THE CASE.  FOR ACCEPTING THE PREMISE
THAT THE JURY COULD HAVE FOUND THAT PETITIONER DID NOT PURPORT TO ACT
IN A REPRESENTATIVE CAPACITY WHEN HE ENDORSED THE CHECKS, IT WAS SURELY
ALSO PERMISSIBLE FOR THE JURY TO FIND THAT PETITIONER HAD PURPORTED TO
MAKE AN AGENCY ENDORSEMENT IN BOTH INSTANCES, AND WE ARE THUS LEFT TO
SPECULATE ON WHICH THEORY ITS VERDICT IN FACT RESTED.  INDEED THE
RECORD BEFORE US SEEMS TO INDICATE THAT THIS ASPECT OF THE CASE WAS
TRIED, AT LEAST PRIMARILY, ON AN AGENCY-ENDORSEMENT THEORY.  THE TRIAL
JUDGE'S INSTRUCTIONS TO THE JURY ON THIS PHASE OF THE CASE WERE AT BEST
OPAQUE.  HAVING REFUSED TO INSTRUCT THE JURY THAT AN AGENCY ENDORSEMENT
WAS NOT FORGERY UNDER SEC. 495, (FN4) HE AT NO POINT UNDERTOOK TO
EXPLAIN THE DIFFERENCE BETWEEN AN AGENCY AND A NONAGENCY ENDORSEMENT. 
(FN5)  NOR CAN WE PERCEIVE ANY FORCE IN THE GOVERNMENT'S FURTHER
SUGGESTION THAT THE JURY'S VERDICT ON THESE TWO COUNTS MIGHT HAVE
RESTED SIMPLY ON THE THEORY THAT IN DESCRIBING HIMSELF AS "TRUSTEE" THE
PETITIONER HAD MADE A FICTITIOUS ENDORSEMENT, IN THAT HE HAD NEVER
OCCUPIED THAT STATUS.  SINCE THE CHARGE WAS THAT PETITIONER HAD FORGED
THE NAMES OF THE BARTFIELDS, NOT OF THEIR AGENT, THIS IS BUT ANOTHER
WAY OF DESCRIBING THE AGENCY-ENDORSEMENT VERSION OF THE TRANSACTION. 

IN THIS POSTURE OF THINGS THE GOVERNMENT'S PROPOSAL THAT WE BYPASS
DECISION OF THE QUESTION THAT BROUGHT THE CASE HERE MUST BE REJECTED. 
IF AN AGENCY ENDORSEMENT DOES NOT CONSTITUTE FORGERY UNDER SEC. 495,
THE PETITIONER IS AT LEAST ENTITLED TO A NEW TRIAL UNDER PROPER JURY
INSTRUCTIONS. 

II. 

THE ORIGINAL PREDECESSOR OF SEC. 495 WAS ENACTED IN 1823, 3 STAT.
771, AND IN RESPECTS HERE PERTINENT HAS THROUGHOUT THE INTERVENING
YEARS BEEN IN SUBSTANTIALLY THE SAME FORM AS SEC. 495.  THERE IS NO
SIGNIFICANT LEGISLATIVE HISTORY ILLUMINATING SEC. 495 OR ANY OF ITS
PREDECESSORS.  IN DECIDING WHETHER "FORGES" UNDER SEC. 495 EMBRACES
AGENCY ENDORSEMENTS, IT IS THEREFORE IMPORTANT TO INQUIRE, AS THE
GOVERNMENT RECOGNIZES, INTO THE COMMON-LAW MEANING OF FORGERY AT THE
TIME THE 1823 STATUTE WAS ENACTED.  FOR IN THE ABSENCE OF ANYTHING TO
THE CONTRARY IT IS FAIR TO ASSUME THAT CONGRESS USED THAT WORD IN THE
STATUTE IN ITS COMMON-LAW SENSE. 

IN 1847 IT WAS DECIDED IN THE ENGLISH CASE OF REGINA V. WHITE, 2
CAR.  & K. 404, 175 ENG. REP.  167 (NISI PRIUS, BOOK 6), THAT
"INDORSING A BILL OF EXCHANGE UNDER A FALSE ASSUMPTION OF AUTHORITY TO
INDORSE IT PER PROCURATION, IS NOT FORGERY, THERE BEING NO FALSE
MAKING."  (FN6)  2 CAR.  & K., AT 412, 175 ENG. REP., AT 170 (NISI
PRIUS, BOOK 6).  THIS TO BE SURE WAS SOME TWENTY-FOUR YEARS AFTER THE
1823 PREDECESSOR OF SEC. 495 CAME ON THE BOOKS.  THE GOVERNMENT SAYS
THAT THIS ENGLISH DECISION SHOULD BE REGARDED AS BUT AN ILL-ADVISED AND
TEMPORARY DEPARTURE FROM THE EARLIER COMMON LAW WHICH WAS "SOON
RECOGNIZED" AND REMEDIED BY THE PASSAGE OF THE FORGERY ACT OF 1861, 24
& 25 VICT., C. 98, SEC. 24, DEFINING FORGERY TO INCLUDE UNAUTHORIZED
SIGNINGS "PER PROCURATION," WITH INTENT TO DEFRAUD.  (FN7)  THE
GOVERNMENT DRAWS FROM EARLIER ENGLISH AUTHORITY, 2 EAST, PLEAS OF THE
CROWN, 850-859 (1803); 1 HAWKINS, PLEAS OF THE CROWN, C. 70; COKE,
THIRD INSTITUTE (1797 ED.)  169; 4 BLACKSTONE, COMMENTARIES, 247, THE
CONCLUSION THAT AGENCY ENDORSEMENTS DID CONSTITUTE FORGERY UNDER THE
COMMON LAW AS IT EXISTED WHEN THE 1823 AMERICAN STATUTE WAS PASSED. 

THIS VIEW CANNOT READILY BE ACCEPTED.  THE FIFTEEN JUDGES WHO
PARTICIPATED IN REGINA V. WHITE UNANIMOUSLY DECIDED THAT CASE AS THEY
DID ONLY AFTER CONSIDERING THE EARLIER ENGLISH AUTHORITIES.  SUCH OF
THESE AUTHORITIES AS ARE NOW RELIED ON BY THE GOVERNMENT ARE BY NO
MEANS AS CLEAR AS THE GOVERNMENT WOULD HAVE THEM.  THUS LORD EAST'S
COMMENTS, SUPRA, AT P. 852, WERE:  "FORGERY AT COMMON LAW DENOTES A
FALSE MAKING (WHICH INCLUDES EVERY ALTERATION OF OR ADDITION TO A TRUE
INSTRUMENT), A MAKING MALO ANIMO, OF ANY WRITTEN INSTRUMENT FOR THE
PURPOSE OF FRAUD AND DECEIT  ...  . THE ANCIENT AND MODERN AUTHORITIES
ALL CONSIDER THE OFFENCE AS CONSISTING IN THE FALSE AND FRAUDULENT
MAKING OR ALTERING OF SUCH AND SUCH INSTRUMENTS."  COKE, (FN8) HAWKINS,
(FN9) AND BLACKSTONE, (FN10) WHO ARE ALSO CITED BY THE GOVERNMENT, ARE
NO MORE PERSUASIVE TOWARDS THE GOVERNMENT'S VIEW.  THE MORE INCLUSIVE
DEFINITION OF FORGERY CONTAINED IN THE ENGLISH STATUTES, SUPRA, P. 655
AND NOTE 7, PROVES NOT THAT REGINA V. WHITE WAS MISTAKEN IN ITS VIEW OF
THE COMMON LAW BUT ONLY THAT A BROADER DEFINITION WAS DEEMED DESIRABLE
BY PARLIAMENT.  AND FINALLY, THE REGINA V. WHITE VIEW OF FORGERY AT
COMMON LAW WAS EARLY ACCEPTED IN A FEDERAL CASE AS REPRESENTING THE
ENGLISH COMMON LAW.  IN RE EXTRADITION OF TULLY, 20 F. 812.  THE SAME
VIEW OF FORGERY HAS SINCE BEEN FOLLOWED IN MOST OF THE STATE AND
FEDERAL COURTS IN THIS COUNTRY.  SEE, E.G., PEOPLE V. BENDIT, 111 CAL.
274, 276-280, 43 P. 901, 902; PASADENA INVESTMENT CO. V. PEERLESS
CASUALTY CO., 132 CAL. APP. 2D 328, 331, 282 P.2D 124, 125; STATE V.
LAMB, 198 N.C. 423, 425-426, 152 S.E. 154, 155-156; DEXTER HORTON NAT.
BANK V. UNITED STATES FIDELITY & GUARANTY CO., 149 WASH. 343, 346-351,
270 P. 799, 800-802; GREATHOUSE V. UNITED STATES, 170 F.2D 512, 514;
MARTENEY V. UNITED STATES, 216 F.2D 760, 763-764. 

THE FOREGOING CONSIDERATIONS COMBINE TO LEAD US TO THE CONCLUSION
THAT "FORGE" IN SEC. 495 SHOULD NOT BE TAKEN TO INCLUDE AN AGENCY
ENDORSEMENT.  SO THE COURT OF APPEALS FOR THE TENTH CIRCUIT HAS HELD IN
SELVIDGE V. UNITED STATES, SUPRA, THE ONLY CASE IN THE LOWER FEDERAL
COURTS SQUARELY DEALING WITH THE POINT, (FN11) AND WE PERCEIVE NO SOUND
REASON FOR REJECTING ITS CONCLUSION.  WE FIND NO MORE PERSUASIVE THAN
DID THE COURT OF APPEALS IN SELVIDGE (290 F.2D, AT 896 AND NOTE 2) THE
SCATTERED FEDERAL CASES RELIED ON BY THE GOVERNMENT IN SUPPORT OF THE
OPPOSITE VIEW.  (FN12)  NOR ARE WE IMPRESSED WITH THE ARGUMENT THAT
"FORGE" IN SEC. 495 SHOULD BE GIVEN A BROADER SCOPE THAN ITS COMMON-LAW
MEANING BECAUSE CONTAINED IN A STATUTE AIMED AT PROTECTING THE
GOVERNMENT AGAINST FRAUD.  (FN13)  OTHER FEDERAL STATUTES ARE AMPLE
ENOUGH TO PROTECT THE GOVERNMENT AGAINST FRAUD AND FALSE STATEMENTS. 
SEE 18 U.S.C.  SECS. 1001-1026.  STILL FURTHER, IT IS SIGNIFICANT THAT
CASES CONSTRUING "FORGE" UNDER OTHER FEDERAL STATUTES HAVE GENERALLY
DRAWN A DISTINCTION BETWEEN FALSE OR FRAUDULENT STATEMENTS AND SPURIOUS
OR FICTITIOUS MAKINGS.  SEE, E.G., GREATHOUSE V. UNITED STATES, SUPRA
(CONSTRUING 18 U.S.C. SEC. 2314); WRIGHT V. UNITED STATES, 172 F.2D
310, 311-312 (CONSTRUING 18 U.S.C.  SEC. 2314); MARTENEY V. UNITED
STATES, SUPRA (CONSTRUING 18 U.S.C. SEC. 2314); UNITED STATES V.
CARABASI, 292 F.2D 362, 364 (CONSTRUING 7 U.S.C. SEC. 1622(H)).  WHERE
THE "FALSITY LIES IN THE REPRESENTATION OF FACTS, NOT IN THE
GENUINENESS OF EXECUTION," IT IS NOT FORGERY.  MARTENEY V. UNITED
STATES, SUPRA, AT 763-764.  OF COURSE, CONGRESS COULD BROADEN THE
CONCEPT OF "FEDERAL" FORGERY BY STATUTORY DEFINITION.  WE HOLD ONLY
THAT IT HAS NOT YET DONE SO. 

WE CONCLUDE THAT PETITIONER'S CONVICTION CANNOT BE SUSTAINED UPON
THIS RECORD.  HOWEVER, SINCE WE ARE NOT PREPARED AT THIS STAGE TO SAY
THAT THE GOVERNMENT MIGHT NOT BE ENTITLED TO SUCCEED ON THESE TWO
COUNTS OF THE INDICTMENT UPON THE THEORY THAT PETITIONER NEVER SIGNED
THE BARTFIELDS' NAMES IN A REPRESENTATIVE CAPACITY, WE THINK THE WAY
SHOULD BE LEFT OPEN FOR A RETRIAL OF THEM UNDER PROPER JURY
INSTRUCTIONS, IN CONJUNCTION WITH THE OTHER COUNTS ALREADY REMANDED BY
THE COURT OF APPEALS, WITHIN A REASONABLE TIME.  ACCORDINGLY, THE
JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO
THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  18 U.S.C. SEC. 495 PROVIDES:  "WHOEVER FALSELY MAKES, ALTERS,
FORGES, OR COUNTERFEITS ANY DEED, POWER OF ATTORNEY, ORDER,
CERTIFICATE, RECEIPT, CONTRACT, OR OTHER WRITING, FOR THE PURPOSE OF
OBTAINING OR RECEIVING, OR OF ENABLING ANY OTHER PERSON, EITHER
DIRECTLY OR INDIRECTLY, TO OBTAIN OR RECEIVE FROM THE UNITED STATES OR
ANY OFFICERS OR AGENTS THEREOF, ANY SUM OF MONEY  ...  . 

     *         *         *         *   * 

"SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH." 

COUNTS 21 AND 22, WHICH ARE IDENTICAL IN FORM, CHARGE: 

"ON OR ABOUT JUNE 2, 1958,  ...  THE DEFENDANT R. MILO GILBERT
KNOWINGLY AND WILFULLY FORGED ON UNITED STATES TREASURY CHECK  ...  THE
ENDORSEMENT AND SIGNATURE OF THE PAYEES, DANIEL H. AND CHALRENE R.
BARTFIELD, FOR THE PURPOSE OF OBTAINING AND RECEIVING SAID AMOUNT FROM
THE UNITED STATES, ITS OFFICERS AND AGENTS."    FN2  AS PAYEE OF THE
TWO CHECKS, MRS. BARTFIELD'S FIRST NAME (CHARLINE) WAS INCORRECTLY
SPELLED "CHALRENE" ON ONE AND "CHARLENE" ON THE OTHER, THE FORMER
MISSPELLING BEING CARRIED OVER INTO THE INDICTMENTS.  (NOTE 1, SUPRA.)
ON ONE OF THE CHECKS, PETITIONE'S FIRST NAME, AS PART OF THE PAYEE
INSCRIPTION, WAS INCORRECTLY SPELLED "MILE." 

FN3  NO CLAIM IS MADE IN THIS CASE THAT THERE WAS ANYTHING WRONG WITH
THE BARTFIELDS' INCOME TAX RETURNS, TO WHICH THE TWO REFUND CHECKS
RELATED. 

FN4  PETITIONER'S REQUESTED INSTRUCTIONS PERTINENT TO THESE TWO
COUNTS, BOTH REJECTED, WERE: 

1.  "ONE WHO EXECUTES AN INSTRUMENT PURPORTING ON ITS FACE TO BE
EXECUTED BY HIM AS AGENT OF A PRINCIPAL NAMED THEREIN, WHEN IN FACT HE
HAS NO AUTHORITY FOR SUCH PRINCIPAL TO EXECUTE SAID INSTRUMENT, IS NOT
GUILTY OF FORGERY. 

"PEOPLE V. BENDIT, 111 C 274 (1896); INTERNATIONAL FINANCE
CORPORATION VS. PEOPLE'S BANK OF KEYSER, 27 F.2D 523 AT 527.  4 I ALR
231 N." 

2.  "A CHECK ENDORSED AS FOLLOWS - NAME OF PAYEE BY OTHER AS TRUSTEE,
DOES NOT CONSTITUTE A FORGED INSTRUMENT UNDER U.S.C. TITLE 18, SECTION
495." 

FN5  OTHER THAN A DICTIONARY DEFINITION OF THE WORD "TRUSTEE," THE
ONLY INSTRUCTIONS GIVEN THE JURY BY THE TRIAL JUDGE ON THIS PHASE OF
THE CASE WERE THESE: 

"WHERE A TAX ACCOUNTANT REPRESENTS A TAXPAYER IN THE PREPARATION OF
TAX RETURNS, THERE IS NO PRESUMPTION OF AUTHORITY AND THE RIGHTS OF THE
TAX ACCOUNTANT MUST BE GOVERNED BY THE TERMS OF HIS EMPLOYMENT, AS
APPLIES TO ANY OTHER ORDINARY AGENCY. 

"ALSO, A POWER OF ATTORNEY TO PROSECUTE A CLAIM AGAINST THE
GOVERNMENT GIVING AUTHORITY TO RECEIVE A CHECK IN PAYMENT GIVES THE
AGENT NO POWER TO INDORSE AND COLLECT THE CHECK.  BUT SUCH AUTHORITY
MAY BE GIVEN EITHER ORALLY OR BY WRITING." 

NO INSTRUCTIONS SPECIFICALLY ADDRESSED TO THE ELEMENTS OF THE OFFENSE
UNDER 18 U.S.C. SEC. 1001 WERE GIVEN, AND THE GOVERNMENT DOES NOT HERE
SEEK TO SUPPORT THE CONVICTION ON THE TWO FORGERY COUNTS ON THE BASIS
OF THAT SECTION. 

FN6  THE TRIAL JUDGE, IN SUMMATION, HAD INSTRUCTED THE JURY "THAT IF
THEY WERE OF OPINION THAT THE PRISONER, AT THE TIME WHEN HE SIGNED THIS
INDORSEMENT, HAD WILFULLY MISREPRESENTED THAT HE CAME FROM MR.
TOMLINSON (THE DEFENDANT'S FORMER EMPLOYER) WITH INTENT TO DEFRAUD HIM
OR THE BANKERS, AND HAD NO AUTHORITY FROM MR. TOMLINSON, THEY OUGHT TO
FIND HIM GUILTY."  2 CAR.  & K., AT 406, 175 ENG. REP., AT 168 (NISI
PRIUS, BOOK 6). 

FN7  THE STATUTE PRESENTLY IN EFFECT IN ENGLAND, THE FORGERY ACT OF
1913, 3 & 4 GEO. 5, C. 27, SEC. 1(2), PROVIDES THAT A DOCUMENT IS
FORGED "IF THE WHOLE OR ANY MATERIAL PART THEREOF PURPORTS TO BE MADE
BY OR ON BEHALF OR ON ACCOUNT OF A PERSON WHO DID NOT MAKE IT NOR
AUTHORISE ITS MAKING  ... ." 

FN8  "LORD COKE (THIRD INSTITUTE 169) INDEED SEEMS TO CONFINE IT
(FORGERY) IN STRICTNESS TO AN ACT DONE IN THE NAME OF ANOTHER, BUT THIS
WAS LONG AGO AGREED  ...  TO BE TOO NARROW A DEFINITION."  2 EAST,
PLEAS OF THE CROWN, 852 (1803).  HAWKINS INTERPRETED COKE TO SAY THAT
EVEN THE ALTERATION OF A DEED, BY ADDING A 0 TO 500 TO MAKE IT 5000,
"MAY MORE PROPERLY BE CALLED A FALSE THAN A FORGED WRITING, BECAUSE IT
IS NOT FORGED IN THE NAME OF ANOTHER, NOR HIS SEAL NOR HAND
COUNTERFEITED."  1 HAWKINS, PLEAS OF THE CROWN, C. 70, SEC. 2, AT 183
(1762). 

FN9  "FORGERY BY THE COMMON LAW SEEMETH TO BE AN OFFENCE IN FALSLY
AND FRAUDULENTLY MAKING OR ALTERING ANY MATTER OF RECORD, OR ANY OTHER
AUTHENTICK MATTER OF A PUBLICK NATURE  ...  ."  1 HAWKINS, PLEAS OF THE
CROWN, C. 70, SEC. 1, PAGE 182 (1762).  "ALSO THE NOTION OF FORGERY
DOTH NOT SEEM SO MUCH TO CONSIST IN THE COUNTERFEITING A MAN'S HAND AND
SEAL, WHICH MAY OFTEN BE DONE INNOCENTLY, BUT IN THE ENDEAVORING TO
GIVE AN APPEARANCE OF TRUTH TO A MERE DECEIT AND FALSITY, AND ...  TO
IMPOSE THAT UPON THE WORLD AS THE SOLEMN ACT OF ANOTHER  ... ."  ID.,
SEC. 2, AT 183. 

FN10  "FORGERY, OR THE CRIMEN FALSI,  ...  MAY WITH US BE DEFINED (AT
COMMON LAW) TO BE, 'THE FRAUDULENT MAKING OR ALTERATION OF A WRITING TO
THE PREJUDICE OF ANOTHER MAN'S RIGHT'  ...  ."  4 BLACKSTONE,
COMMENTARIES (CHRISTIAN ED. 1809), 247-248. 

FN11  WE DO NOT READ THE EARLY CASE OF UNITED STATES V. OSGOOD, 27
FED. CAS. NO. 15,971A, 362, DECIDED UNDER THE 1823 STATUTE, AS POINTING
TO A DIFFERENT CONCLUSION. 

FN12  EX PARTE HIBBS, 26 F. 421; YEAGER V. UNITED STATES, 59 APP.
D.C. 11, 32 F.2D 402; UNITED STATES V. TOMMASELLO, 64 F. SUPP. 467;
QUICK SERVICE BOX CO. V. ST. PAUL MERCURY INDEMNITY CO., 95 F.2D 15. 

FN13  THE FACT THAT THE ORIGINAL 1823 STATUTE HAD A PROVISO
DISCLAIMING ANY PURPOSE TO PREEMPT STATE CRIMINAL JURISDICTION IN
RESPECT OF MATTERS COVERED BY THE FEDERAL ACT DOES NOT OF COURSE, AS
THE GOVERNMENT SUGGESTS, INDICATE THAT "FORGERY" HAD A WIDER MEANING IN
FEDERAL THAN UNDER STATE LAW.  CF. 18 U.S.C. SEC. 3231, WHERE A SIMILAR
GENERAL PROVISO RELATING TO ALL STATUTES IN TITLE 18 IS NOW FOUND. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK, AND MR. JUSTICE STEWART
DISSENT, BELIEVING THAT ONE WHO ENDORSES A CHECK IN THE NAME OF THE
PAYEE WITHOUT AUTHORITY DO DO SO IS GUILTY OF FORGERY UNDER 18 U.S.C.
SEC. 495, WHETHER OR NOT THE FORGER FALSELY PURPORTS TO HAVE SIGNED THE
PAYEE'S NAME AS AN AUTHORIZED AGENT. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






ROBINSON V. CALIFORNIA 370 U.S. 660 


NO. 554.  ARGUED APRIL 17, 1962 - DECIDED JUNE 25, 1962 - REVERSED. 


A CALIFORNIA STATUTE MAKES IT A MISDEMEANOR PUNISHABLE BY IMPRISONMENT
FOR ANY PERSON TO "BE ADDICTED TO THE USE OF NARCOTICS," AND, IN
SUSTAINING PETITIONER'S CONVICTION THEREUNDER, THE CALIFORNIA COURTS
CONSTRUED THE STATUTE AS MAKING THE "STATUS" OF NARCOTIC ADDICTION A
CRIMINAL OFFENSE FOR WHICH THE OFFENDER MAY BE PROSECUTED "AT ANY TIME
BEFORE HE REFORMS," EVEN THOUGH HE HAS NEVER USED OR POSSESSED ANY
NARCOTICS WITHIN THE STATE AND HAS NOT BEEN GUILTY OF ANY ANTISOCIAL
BEHAVIOR THERE.  HELD:  AS SO CONSTRUED AND APPLIED, THE STATUTE
INFLICTS A CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND
FOURTEENTH AMENDMENTS.  PP. 660-668. 

ROBINSON V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA,
LOS ANGELES COUNTY. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

A CALIFORNIA STATUTE MAKES IT A CRIMINAL OFFENSE FOR A PERSON TO "BE
ADDICTED TO THE USE OF NARCOTICS."  (FN1)  THIS APPEAL DRAWS INTO
QUESTION THE CONSTITUTIONALITY OF THAT PROVISION OF THE STATE LAW, AS
CONSTRUED BY THE CALIFORNIA COURTS IN THE PRESENT CASE. 

THE APPELLANT WAS CONVICTED AFTER A JURY TRIAL IN THE MUNICIPAL COURT
OF LOS ANGELES.  THE EVIDENCE AGAINST HIM WAS GIVEN BY TWO LOS ANGELES
POLICE OFFICERS.  OFFICER BROWN TESTIFIED THAT HE HAD OCCASION TO
EXAMINE THE APPELLANT'S ARMS ONE EVENING ON A STREET IN LOS ANGELES
SOME FOUR MONTHS BEFORE THE TRIAL.  (FN2)  THE OFFICER TESTIFIED THAT
AT THAT TIME HE HAD OBSERVED "SCAR TISSUE AND DISCOLORATION ON THE
INSIDE" OF THE APPELLANT'S RIGHT ARM, AND "WHAT APPEARED TO BE NUMEROUS
NEEDLE MARKS AND A SCAB WHICH WAS APPROXIMATELY THREE INCHES BELOW THE
CROOK OF THE ELBOW" ON THE APPELLANT'S LEFT ARM.  THE OFFICER ALSO
TESTIFIED THAT THE APPELLANT UNDER QUESTIONING HAD ADMITTED TO THE
OCCASIONAL USE OF NARCOTICS. 

OFFICER LINDQUIST TESTIFIED THAT HE HAD EXAMINED THE APPELLANT THE
FOLLOWING MORNING IN THE CENTRAL JAIL IN LOS ANGELES.  THE OFFICER
STATED THAT AT THAT TIME HE HAD OBSERVED DISCOLORATIONS AND SCABS ON
THE APPELLANT'S ARMS, AND HE IDENTIFIED PHOTOGRAPHS WHICH HAD BEEN
TAKEN OF THE APPELLANT'S ARMS SHORTLY AFTER HIS ARREST THE NIGHT
BEFORE.  BASED UPON MORE THAN TEN YEARS OF EXPERIENCE AS A MEMBER OF
THE NARCOTIC DIVISION OF THE LOS ANGELES POLICE DEPARTMENT, THE WITNESS
GAVE HIS OPINION THAT "THESE MARKS AND THE DISCOLORATION WERE THE
RESULT OF THE INJECTION OF HYPODERMIC NEEDLES INTO THE TISSUE INTO THE
VEIN THAT WAS NOT STERILE."  HE STATED THAT THE SCABS WERE SEVERAL DAYS
OLD AT THE TIME OF HIS EXAMINATION, AND THAT THE APPELLANT WAS NEITHER
UNDER THE INFLUENCE OF NARCOTICS NOR SUFFERING WITHDRAWAL SYMPTOMS AT
THE TIME HE SAW HIM.  THIS WITNESS ALSO TESTIFIED THAT THE APPELLANT
HAD ADMITTED USING NARCOTICS IN THE PAST. 

THE APPELLANT TESTIFIED IN HIS OWN BEHALF, DENYING THE ALLEGED
CONVERSATIONS WITH THE POLICE OFFICERS AND DENYING THAT HE HAD EVER
USED NARCOTICS OR BEEN ADDICTED TO THEIR USE.  HE EXPLAINED THE MARKS
ON HIS ARMS AS RESULTING FROM AN ALLERGIC CONDITION CONTRACTED DURING
HIS MILITARY SERVICE.  HIS TESTIMONY WAS CORROBORATED BY TWO
WITNESSES. 

THE TRIAL JUDGE INSTRUCTED THE JURY THAT THE STATUTE MADE IT A
MISDEMEANOR FOR A PERSON "EITHER TO USE NARCOTICS, OR TO BE ADDICTED TO
THE USE OF NARCOTICS  ...  .  (FN3)  THAT PORTION OF THE STATUTE
REFERRING TO THE 'USE' OF NARCOTICS IS BASED UPON THE 'ACT' OF USING. 
THAT PORTION OF THE STATUTE REFERRING TO 'ADDICTED TO THE USE' OF
NARCOTICS IS BASED UPON A CONDITION OR STATUS.  THEY ARE NOT IDENTICAL
...  .  TO BE ADDICTED TO THE USE OF NARCOTICS IS SAID TO BE A STATUS
OR CONDITION AND NOT AN ACT.  IT IS A CONTINUING OFFENSE AND 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.  THE EXISTENCE OF SUCH A
CHRONIC CONDITION MAY BE ASCERTAINED FROM A SINGLE EXAMINATION, IF THE
CHARACTERISTIC REACTIONS OF THAT CONDITION BE FOUND PRESENT." 

THE JUDGE FURTHER INSTRUCTED THE JURY THAT THE APPELLANT COULD BE
CONVICTED UNDER A GENERAL VERDICT IF THE JURY AGREED EITHER THAT HE WAS
OF THE "STATUS" OR HAD COMMITTED THE "ACT" DENOUNCED BY THE STATUTE. 
(FN4)  "ALL THAT THE PEOPLE MUST SHOW IS EITHER THAT THE DEFENDANT DID
USE A NARCOTIC IN LOS ANGELES COUNTY, OR THAT WHILE IN THE CITY OF LOS
ANGELES HE WAS ADDICTED TO THE USE OF NARCOTICS  ...  ."  (FN5) 

UNDER THESE INSTRUCTIONS THE JURY RETURNED A VERDICT FINDING THE
APPELLANT "GUILTY OF THE OFFENSE CHARGED."  AN APPEAL WAS TAKEN TO THE
APPELLATE DEPARTMENT OF THE LOS ANGELES COUNTY SUPERIOR COURT, "THE
HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE HAD" IN THIS
CASE.  28 U.S.C. SEC. 1257.  SEE SMITH V. CALIFORNIA, 361 U.S. 147,
149; EDWARDS V. CALIFORNIA, 314 U.S. 160, 171.  ALTHOUGH EXPRESSING
SOME DOUBT AS TO THE CONSTITUTIONALITY OF "THE CRIME OF BEING A
NARCOTIC ADDICT," THE REVIEWING COURT IN AN UNREPORTED OPINION AFFIRMED
THE JUDGMENT OF CONVICTION, CITING TWO OF ITS OWN PREVIOUS UNREPORTED
DECISIONS WHICH HAD UPHELD THE CONSTITUTIONALITY OF THE STATUTE.  (FN6)
WE NOTED PROBABLE JURISDICTION OF THIS APPEAL, 368 U.S. 918, BECAUSE
IT SQUARELY PRESENTS THE ISSUE WHETHER THE STATUTE AS CONSTRUED BY THE
CALIFORNIA COURTS IN THIS CASE IS REPUGNANT TO THE FOURTEENTH AMENDMENT
OF THE CONSTITUTION. 

THE BROAD POWER OF A STATE TO REGULATE THE NARCOTIC DRUGS TRAFFIC
WITHIN ITS BORDERS IS NOT HERE IN ISSUE.  MORE THAN FORTY YEARS AGO, IN
WHIPPLE V. MARTINSON, 256 U.S. 41, THIS COURT EXPLICITLY RECOGNIZED THE
VALIDITY OF THAT POWER:  "THERE CAN BE NO QUESTION OF THE AUTHORITY OF
THE STATE IN THE EXERCISE OF ITS POLICE POWER TO REGULATE THE
ADMINISTRATION, SALE, PRESCRIPTION AND USE OF DANGEROUS AND HABIT
FORMING DRUGS  ...  .  THE RIGHT TO EXERCISE THIS POWER IS SO MANIFEST
IN THE INTEREST OF THE PUBLIC HEALTH AND WELFARE, THAT IT IS
UNNECESSARY TO ENTER UPON A DISCUSSION OF IT BEYOND SAYING THAT IT IS
TOO FIRMLY ESTABLISHED TO BE SUCCESSFULLY CALLED IN QUESTION."  256
U.S., AT 45. 

SUCH REGULATION, IT CAN BE ASSUMED, COULD TAKE A VARIETY OF VALID
FORMS.  A STATE MIGHT IMPOSE CRIMINAL SANCTIONS, FOR EXAMPLE, AGAINST
THE UNAUTHORIZED MANUFACTURE, PRESCRIPTION, SALE, PURCHASE, OR
POSSESSION OF NARCOTICS WITHIN ITS BORDERS.  IN THE INTEREST OF
DISCOURAGING THE VIOLATION OF SUCH LAWS, OR IN THE INTEREST OF THE
GENERAL HEALTH OR WELFARE OF ITS INHABITANTS, A STATE MIGHT ESTABLISH A
PROGRAM OF COMPULSORY TREATMENT FOR THOSE ADDICTED TO NARCOTICS.  (FN7)
SUCH A PROGRAM OF TREATMENT MIGHT REQUIRE PERIODS OF INVOLUNTARY
CONFINEMENT.  AND PENAL SANCTIONS MIGHT BE IMPOSED FOR FAILURE TO
COMPLY WITH ESTABLISHED COMPULSORY TREATMENT PROCEDURES.  CF. JACOBSON
V. MASSACHUSETTS, 197 U.S. 11.  OR A STATE MIGHT CHOOSE TO ATTACK THE
EVILS OF NARCOTICS TRAFFIC ON BROADER FRONTS ALSO - THROUGH PUBLIC
HEALTH EDUCATION, FOR EXAMPLE, OR BY EFFORTS TO AMELIORATE THE ECONOMIC
AND SOCIAL CONDITIONS UNDER WHICH THOSE EVILS MIGHT BE THOUGHT TO
FLOURISH.  IN SHORT, THE RANGE OF VALID CHOICE WHICH A STATE MIGHT MAKE
IN THIS AREA IS UNDOUBTEDLY A WIDE ONE, AND THE WISDOM OF ANY
PARTICULAR CHOICE WITHIN THE ALLOWABLE SPECTRUM IS NOT FOR US TO
DECIDE.  UPON THAT PREMISE WE TURN TO THE CALIFORNIA LAW IN ISSUE
HERE. 

IT WOULD BE POSSIBLE TO CONSTRUE THE STATUTE UNDER WHICH THE
APPELLANT WAS CONVICTED AS ONE WHICH IS OPERATIVE ONLY UPON PROOF OF
THE ACTUAL USE OF NARCOTICS WITHIN THE STATE'S JURISDICTION.  BUT THE
CALIFORNIA COURTS HAVE NOT SO CONSTRUED THIS LAW.  ALTHOUGH THERE WAS
EVIDENCE IN THE PRESENT CASE THAT THE APPELLANT HAD USED NARCOTICS IN
LOS ANGELES, THE JURY WERE INSTRUCTED THAT THEY COULD CONVICT HIM EVEN
IF THEY DISBELIEVED THAT EVIDENCE.  THE APPELLANT COULD BE CONVICTED,
THEY WERE TOLD, IF THEY FOUND SIMPLY THAT THE APPELLANT'S "STATUS" OR
"CHRONIC CONDITION" WAS THAT OF BEING "ADDICTED TO THE USE OF
NARCOTICS."  AND IT IS IMPOSSIBLE TO KNOW FROM THE JURY'S VERDICT THAT
THE DEFENDANT WAS NOT CONVICTED UPON PRECISELY SUCH A FINDING. 

THE INSTRUCTIONS OF THE TRIAL COURT, IMPLICITLY APPROVED ON APPEAL,
AMOUNTED TO "A RULING ON A QUESTION OF STATE LAW THAT IS AS BINDING ON
US AS THOUGH THE PRECISE WORDS HAD BEEN WRITTEN" INTO THE STATUTE. 
TERMINIELLO V. CHICAGO, 337 U.S. 1, 4.  "WE CAN ONLY TAKE THE STATUTE
AS THE STATE COURTS READ IT."  ID., AT 6.  INDEED, IN THEIR BRIEF IN
THIS COURT COUNSEL FOR THE STATE HAVE EMPHASIZED THAT IT IS "THE PROOF
OF ADDICTION BY CIRCUMSTANTIAL EVIDENCE  ...  BY THE TELL-TALE TRACK OF
NEEDLE MARKS AND SCABS OVER THE VEINS OF HIS ARMS, THAT REMAINS THE
GIST OF THE SECTION." 

THIS STATUTE, THEREFORE, IS NOT ONE WHICH PUNISHES A PERSON FOR THE
USE OF NARCOTICS, FOR THEIR PURCHASE, SALE OR POSSESSION, OR FOR
ANTISOCIAL OR DISORDERLY BEHAVIOR RESULTING FROM THEIR ADMINISTRATION. 
IT IS NOT A LAW WHICH EVEN PURPORTS TO PROVIDE OR REQUIRE MEDICAL
TREATMENT.  RATHER, WE DEAL WITH A STATUTE WHICH MAKES THE "STATUS" OF
NARCOTIC ADDICTION A CRIMINAL OFFENSE, FOR WHICH THE OFFENDER MAY BE
PROSECUTED "AT ANY TIME BEFORE HE REFORMS."  CALIFORNIA HAS SAID THAT A
PERSON CAN BE CONTINUOUSLY GUILTY OF THIS OFFENSE, WHETHER OR NOT HE
HAS EVER USED OR POSSESSED ANY NARCOTICS WITHIN THE STATE, AND WHETHER
OR NOT HE HAS BEEN GUILTY OF ANY ANTISOCIAL BEHAVIOR THERE. 

IT IS UNLIKELY THAT ANY STATE AT THIS MOMENT IN HISTORY WOULD ATTEMPT
TO MAKE IT A CRIMINAL OFFENSE FOR A PERSON TO BE MENTALLY ILL, OR A
LEPER, OR TO BE AFFLICTED WITH A VENEREAL DISEASE.  A STATE MIGHT
DETERMINE THAT THE GENERAL HEALTH AND WELFARE REQUIRE THAT THE VICTIMS
OF THESE AND OTHER HUMAN AFFLICTIONS BE DEALT WITH BY COMPULSORY
TREATMENT, INVOLVING QUARANTINE, CONFINEMENT, OR SEQUESTRATION.  BUT,
IN THE LIGHT OF CONTEMPORARY HUMAN KNOWLEDGE, A LAW WHICH MADE A
CRIMINAL OFFENSE OF SUCH A DISEASE WOULD DOUBTLESS BE UNIVERSALLY
THOUGHT TO BE AN INFLICTION OF CRUEL AND UNUSUAL PUNISHMENT IN
VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.  SEE FRANCIS V.
RESWEBER, 329 U.S. 459. 

WE CANNOT BUT CONSIDER THE STATUTE BEFORE US AS OF THE SAME
CATEGORY.  IN THIS COURT COUNSEL FOR THE STATE RECOGNIZED THAT NARCOTIC
ADDICTION IS AN ILLNESS.  (FN8)  INDEED, IT IS APPARENTLY AN ILLNESS
WHICH MAY BE CONTRACTED INNOCENTLY OR INVOLUNTARILY.  (FN9)  WE HOLD
THAT A STATE LAW WHICH IMPRISONS A PERSON THUS AFFLICTED AS A CRIMINAL,
EVEN THOUGH HE HAS NEVER TOUCHED ANY NARCOTIC DRUG WITHIN THE STATE OR
BEEN GUILTY OF ANY IRREGULAR BEHAVIOR THERE, INFLICTS A CRUEL AND
UNUSUAL PUNISHMENT IN VIOLATION OF THE FOURTEENTH AMENDMENT.  TO BE
SURE, IMPRISONMENT FOR NINETY DAYS IS NOT, IN THE ABSTRACT, A
PUNISHMENT WHICH IS EITHER CRUEL OR UNUSUAL.  BUT THE QUESTION CANNOT
BE CONSIDERED IN THE ABSTRACT.  EVEN ONE DAY IN PRISON WOULD BE A CRUEL
AND UNUSUAL PUNISHMENT FOR THE "CRIME" OF HAVING A COMMON COLD. 

WE ARE NOT UNMINDFUL THAT THE VICIOUS EVILS OF THE NARCOTICS TRAFFIC
HAVE OCCASIONED THE GRAVE CONCERN OF GOVERNMENT.  THERE ARE, AS WE HAVE
SAID, COUNTLESS FRONTS ON WHICH THOSE EVILS MAY BE LEGITIMATELY
ATTACKED.  WE DEAL IN THIS CASE ONLY WITH AN INDIVIDUAL PROVISION OF A
PARTICULARIZED LOCAL LAW AS IT HAS SO FAR BEEN INTERPRETED BY THE
CALIFORNIA COURTS.  REVERSED. 

FN1  THE STATUTE IS SEC. 11721 OF THE CALIFORNIA HEALTH AND SAFETY
CODE.  IT PROVIDES: 

"NO PERSON SHALL USE, OR BE UNDER THE INFLUENCE OF, OR BE ADDICTED TO
THE USE OF NARCOTICS, EXCEPTING WHEN ADMINISTERED BY OR UNDER THE
DIRECTION OF A PERSON LICENSED BY THE STATE TO PRESCRIBE AND ADMINISTER
NARCOTICS.  IT SHALL BE THE BURDEN OF THE DEFENSE TO SHOW THAT IT COMES
WITHIN THE EXCEPTION.  ANY PERSON CONVICTED OF VIOLATING ANY PROVISION
OF THIS SECTION IS GUILTY OF A MISDEMEANOR AND SHALL BE SENTENCED TO
SERVE A TERM OF NOT LESS THAN 90 DAYS NOR MORE THAN ONE YEAR IN THE
COUNTY JAIL.  THE COURT MAY PLACE A PERSON CONVICTED HEREUNDER ON
PROBATION FOR A PERIOD NOT TO EXCEED FIVE YEARS AND SHALL IN ALL CASES
IN WHICH PROBATION IS GRANTED REQUIRE AS A CONDITION THEREOF THAT SUCH
PERSON BE CONFINED IN THE COUNTY JAIL FOR AT LEAST 90 DAYS.  IN NO
EVENT DOES THE COURT HAVE THE POWER TO ABSOLVE A PERSON WHO VIOLATES
THIS SECTION FROM THE OBLIGATION OF SPENDING AT LEAST 90 DAYS IN
CONFINEMENT IN THE COUNTY JAIL." 

FN2  AT THE TRIAL THE APPELLANT, CLAIMING THAT HE HAD BEEN THE VICTIM
OF AN UNCONSTITUTIONAL SEARCH AND SEIZURE, UNSUCCESSFULLY OBJECTED TO
THE ADMISSION OF OFFICER BROWN'S TESTIMONY.  THAT CLAIM IS ALSO PRESSED
HERE, BUT SINCE WE DO NOT REACH IT THERE IS NO NEED TO DETAIL THE
CIRCUMSTANCES WHICH LED TO OFFICER BROWN'S EXAMINATION OF THE
APPELLANT'S PERSON.  SUFFICE IT TO SAY, THAT AT THE TIME THE POLICE
FIRST ACCOSTED THE APPELLANT, HE WAS NOT ENGAGING IN ILLEGAL OR
IRREGULAR CONDUCT OF ANY KIND, AND THE POLICE HAD NO REASON TO BELIEVE
HE HAD DONE SO IN THE PAST. 

FN3  THE JUDGE DID NOT INSTRUCT THE JURY AS TO THE MEANING OF THE
TERM "UNDER THE INFLUENCE OF" NARCOTICS, HAVING PREVIOUSLY RULED THAT
THERE WAS NO EVIDENCE OF A VIOLATION OF THAT PROVISION OF THE STATUTE. 
SEE NOTE 1, SUPRA. 

FN4  "WHERE A STATUTE SUCH AS THAT WHICH DEFINES THE CRIME CHARGED IN
THIS CASE DENOUNCES AN ACT AND A STATUS OR CONDITION, EITHER OF WHICH
SEPARATELY AS WELL AS COLLECTIVELY, CONSTITUTE THE CRIMINAL OFFENSE
CHARGED, AN ACCUSATORY PLEADING WHICH ACCUSES THE DEFENDANT OF HAVING
COMMITTED THE ACT AND OF BEING OF THE STATUS OR CONDITION SO DENOUNCED
BY THE STATUTE, IS DEEMED SUPPORTED IF THE PROOF SHOWS THAT THE
DEFENDANT IS GUILTY OF ANY ONE OR MORE OF THE OFFENSES THUS SPECIFIED. 
HOWEVER, IT IS IMPORTANT FOR YOU TO KEEP IN MIND THAT, IN ORDER TO
CONVICT A DEFENDANT IN SUCH A CASE, IT IS NECESSARY THAT ALL OF YOU
AGREE AS TO THE SAME PARTICULAR ACT OR STATUS OR CONDITION FOUND TO
HAVE BEEN COMMITTED OR FOUND TO EXIST.  IT IS NOT NECESSARY THAT THE
PARTICULAR ACT OR STATUS OR CONDITION SO AGREED UPON BE STATED IN THE
VERDICT."    FN5  THE INSTRUCTIONS CONTINUED, "AND IT IS THEN UP TO THE
DEFENDANT TO PROVE THAT THE USE, OR OF BEING ADDICTED TO THE USE OF
NARCOTICS WAS ADMINISTERED BY OR UNDER THE DIRECTION OF A PERSON
LICENSED BY THE STATE OF CALIFORNIA TO PRESCRIBE AND ADMINISTER
NARCOTICS OR AT LEAST TO RAISE A REASONABLE DOUBT CONCERNING THE
MATTER."  NO EVIDENCE, OF COURSE, HAD BEEN OFFERED IN SUPPORT OF THIS
AFFIRMATIVE DEFENSE, SINCE THE APPELLANT HAD DENIED THAT HE HAD USED
NARCOTICS OR BEEN ADDICTED TO THEIR USE. 

FN6  THE APPELLANT TRIED UNSUCCESSFULLY TO SECURE HABEAS CORPUS
RELIEF IN THE DISTRICT COURT OF APPEAL AND THE CALIFORNIA SUPREME
COURT. 

FN7  CALIFORNIA APPEARS TO HAVE ESTABLISHED JUST SUCH A PROGRAM IN
SECS. 5350-5361 OF ITS WELFARE AND INSTITUTIONS CODE.  THE RECORD
CONTAINS NO EXPLANATION OF WHY THE CIVIL PROCEDURES AUTHORIZED BY THIS
LEGISLATION WERE NOT UTILIZED IN THE PRESENT CASE. 

FN8  IN ITS BRIEF THE APPELLEE STATED:  "OF COURSE IT IS GENERALLY
CONCEDED THAT A NARCOTIC ADDICT, PARTICULARLY ONE ADDICTED TO THE USE
OF HEROIN, IS IN A STATE OF MENTAL AND PHYSICAL ILLNESS.  SO IS AN
ALCOHOLIC."  THIRTY-SEVEN YEARS AGO THIS COURT RECOGNIZED THAT PERSONS
ADDICTED TO NARCOTICS "ARE DISEASED AND PROPER SUBJECTS FOR MEDICAL
TREATMENT."  LINDER V. UNITED STATES, 268 U.S. 5, 18. 

FN9  NOT ONLY MAY ADDICTION INNOCENTLY RESULT FROM THE USE OF
MEDICALLY PRESCRIBED NARCOTICS, BUT A PERSON MAY EVEN BE A NARCOTICS
ADDICT FROM THE MOMENT OF HIS BIRTH.  SEE SCHNECK, NARCOTIC WITHDRAWAL
SYMPTOMS IN THE NEWBORN INFANT RESULTING FROM MATERNAL ADDICTION, 52
JOURNAL OF PEDIATRICS 584 (1958); ROMAN AND MIDDELKAMP, NARCOTIC
ADDICTION IN A NEWBORN INFANT, 53 JOURNAL OF PEDIATRICS 231 (1958);
KUNSTADTER, KLEIN, LUNDEEN, WITZ, AND MORRISON, NARCOTIC WITHDRAWAL
SYMPTOMS IN NEWBORN INFANTS, 168 JOURNAL OF THE AMERICAN MEDICAL
ASSOCIATION 1008 (1958); SLOBODY AND COBRINIK, NEONATAL NARCOTIC
ADDICTION, 14 QUARTERLY REVIEW OF PEDIATRICS 169 (1959); VINCOW AND
HACKEL, NEONATAL NARCOTIC ADDICTION, 22 GENERAL PRACTITIONER 90 (1960);
DIKSHIT, NARCOTIC WITHDRAWAL SYNDROME IN NEWBORNS, 28 INDIAN JOURNAL OF
PEDIATRICS 11 (1961). 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE COURT'S OPINION, I WISH TO MAKE MORE EXPLICIT THE
REASONS WHY I THINK IT IS "CRUEL AND UNUSUAL" PUNISHMENT IN THE SENSE
OF THE EIGHTH AMENDMENT TO TREAT AS A CRIMINAL A PERSON WHO IS A DRUG
ADDICT. 

IN SIXTEENTH CENTURY ENGLAND ONE PRESCRIPTION FOR INSANITY WAS TO
BEAT THE SUBJECT "UNTIL HE HAD REGAINED HIS REASON."  DEUTSCH, THE
MENTALLY ILL IN AMERICA (1937), P. 13.  IN AMERICA "THE VIOLENTLY
INSANE WENT TO THE WHIPPING POST AND INTO PRISON DUNGEONS OR, AS
SOMETIMES HAPPENED, WERE BURNED AT THE STAKE OR HANGED"; AND "THE
PAUPER INSANE OFTEN ROAMED THE COUNTRYSIDE AS WILD MEN AND FROM TIME TO
TIME WERE PILLORIED, WHIPPED, AND JAILED."  ACTION FOR MENTAL HEALTH
(1961), P. 26. 

AS STATED BY DR. ISAAC RAY MANY YEARS AGO: 

"NOTHING CAN MORE STRONGLY ILLUSTRATE THE POPULAR IGNORANCE
RESPECTING INSANITY THAN THE PROPOSITION, EQUALLY OBJECTIONABLE IN ITS
HUMANITY AND ITS LOGIC, THAT THE INSANE SHOULD BE PUNISHED FOR CRIMINAL
ACTS, IN ORDER TO DETER OTHER INSANE PERSONS FROM DOING THE SAME
THING."  TREATISE ON THE MEDICAL JURISPRUDENCE OF INSANITY (5TH ED.
1871), P. 56. 

TODAY WE HAVE OUR DIFFERENCES OVER THE LEGAL DEFINITION OF INSANITY. 
BUT HOWEVER INSANITY IS DEFINED, IT IS IN END EFFECT TREATED AS A
DISEASE.  WHILE AFFLICTED PEOPLE MAY BE CONFINED EITHER FOR TREATMENT
OR FOR THE PROTECTION OF SOCIETY, THEY ARE NOT BRANDED AS CRIMINALS. 

YET TERROR AND PUNISHMENT LINGER ON AS MEANS OF DEALING WITH SOME
DISEASES.  AS RECENTLY STATED: 

"  ...  THE IDEA OF BASING TREATMENT FOR DISEASE ON PURGATORIAL ACTS
AND ORDEALS IS AN ANCIENT ONE IN MEDICINE.  IT MAY TRACE BACK TO THE
OLD TESTAMENT BELIEF THAT DISEASE OF ANY KIND, WHETHER MENTAL OR
PHYSICAL, REPRESENTED PUNISHMENT FOR SIN; AND THUS RELIEF COULD TAKE
THE FORM OF A FINAL HEROIC ACT OF ATONEMENT.  THIS SUPERSTITION APPEARS
TO HAVE GIVEN SUPPORT TO FALLACIOUS MEDICAL RATIONALES FOR SUCH
PROCEDURES AS PURGING, BLEEDING, INDUCED VOMITING, AND BLISTERING, AS
WELL AS AN ENTIRE CHAMBER OF HORRORS CONSTITUTING THE EARLY TREATMENT
OF MENTAL ILLNESS.  THE LATTER INCLUDED A WIDE ASSORTMENT OF SHOCK
TECHNIQUES, SUCH AS THE 'WATER CURES' (DOUSING, DUCKING, AND NEAR
DROWNING), SPINNING IN A CHAIR, CENTRIFUGAL SWINGING, AND AN EARLY FORM
OF ELECTRIC SHOCK.  ALL, IT WOULD APPEAR, WERE PLANNED AS MEANS OF
DRIVING FROM THE BODY SOME EVIL SPIRIT OR TOXIC VAPOR."  ACTION FOR
MENTAL HEALTH (1961), PP. 27-28. 

THAT APPROACH CONTINUES AS RESPECTS DRUG ADDICTS.  DRUG ADDICTION IS
MORE PREVALENT IN THIS COUNTRY THAN IN ANY OTHER NATION OF THE WESTERN
WORLD.  (FN1)  S. REP. NO. 1440, 84TH CONG., 2D SESS., P. 2.  IT IS
SOMETIMES REFERRED TO AS "A CONTAGIOUS DISEASE."  ID., AT P. 3.  BUT
THOSE LIVING IN A WORLD OF BLACK AND WHITE PUT THE ADDICT IN THE
CATEGORY OF THOSE WHO COULD, IF THEY WOULD, FORSAKE THEIR EVIL WAYS. 

THE FIRST STEP TOWARD ADDICTION MAY BE AS INNOCENT AS A BOY'S PUFF ON
A CIGARETTE IN AN ALLEYWAY.  IT MAY COME FROM MEDICAL PRESCRIPTIONS. 
ADDICTION MAY EVEN BE PRESENT AT BIRTH.  EARL UBELL RECENTLY WROTE: 

"IN BELLEVUE HOSPITAL'S NURSERIES, DR. SAUL KRUGMAN, HEAD OF
PEDIATRICS, HAS BEEN DISCOVERING BABIES MINUTES OLD WHO ARE HEROIN
ADDICTS. 

"MORE THAN 100 SUCH INFANTS HAVE TURNED UP IN THE LAST TWO YEARS, AND
THEY SHOW ALL THE SIGNS OF DRUG WITHDRAWAL:  IRRITABILITY, JITTERS,
LOSS OF APPETITE, VOMITING, DIARRHEA, SOMETIMES CONVULSIONS AND DEATH. 

"'OF COURSE, THEY GET THE DRUG WHILE IN THE WOMB FROM THEIR MOTHERS
WHO ARE ADDICTS,' DR. KRUGMAN SAID YESTERDAY WHEN THE SITUATION CAME TO
LIGHT.  'WE CONTROL THE SYMPTOMS WITH THORAZINE, A TRANQUILIZING DRUG. 

"'YOU SHOULD SEE SOME OF THESE CHILDREN.  THEY HAVE A HIGH-PITCHED
CRY.  THEY APPEAR HUNGRY BUT THEY WON'T EAT WHEN OFFERED FOOD.  THEY
MOVE AROUND SO MUCH IN THE CRIB THAT THEIR NOSES AND TOES BECOME RED
AND EXCORIATED.' 

"DR. LEWIS THOMAS, PROFESSOR OF MEDICINE AT NEW YORK UNIVERSITY
BELLEVUE, BROUGHT UP THE PROBLEM OF THE BABIES MONDAY NIGHT AT A
SYMPOSIUM ON NARCOTICS ADDICTION SPONSORED BY THE NEW YORK COUNTY
MEDICAL SOCIETY.  HE SAW IN THE WAY THE BABIES RESPOND TO TREATMENT A
CLUE TO THE LOW RATE OF CURE OF ADDICTION. 

"'UNLIKE THE ADULT ADDICT WHO GETS OVER HIS SYMPTOMS OF WITHDRAWAL IN
A MATTER OF DAYS, IN MOST CASES,' DR. THOMAS EXPLAINED LATER, 'THE
INFANT HAS TO BE TREATED FOR WEEKS AND MONTHS.  THE BABY CONTINUES TO
SHOW PHYSICAL SIGNS OF THE ACTION OF THE DRUGS. 

"'PERHAPS IN ADULTS THE DRUGS CONTINUE TO HAVE PHYSICAL EFFECTS FOR A
MUCH LONGER TIME AFTER WITHDRAWAL THAN WE HAVE BEEN ACCUSTOMED TO
RECOGNIZE.  THAT WOULD MEAN THAT THESE PEOPLE HAVE A PHYSICAL NEED FOR
THE DRUG FOR A LONG PERIOD, AND THIS MAY BE THE CLUE TO RECIDIVISM MUCH
MORE THAN THE SOCIAL OR PSYCHOLOGICAL PRESSURES WE'VE BEEN TALKING
ABOUT.'"  N.Y. HERALD TRIBUNE, APR. 25, 1962, P. 25, COLS.  3-4. 

THE ADDICT IS UNDER COMPULSIONS NOT CAPABLE OF MANAGEMENT WITHOUT
OUTSIDE HELP.  AS STATED BY THE COUNCIL ON MENTAL HEALTH: 

"PHYSICAL DEPENDENCE IS DEFINED AS THE DEVELOPMENT OF AN ALTERED
PHYSIOLOGICAL STATE WHICH IS BROUGHT ABOUT BY THE REPEATED
ADMINISTRATION OF THE DRUG AND WHICH NECESSITATES CONTINUED
ADMINISTRATION OF THE DRUG TO PREVENT THE APPEARANCE OF THE
CHARACTERISTIC ILLNESS WHICH IS TERMED AN ABSTINENCE SYNDROME.  WHEN AN
ADDICT SAYS THAT HE HAS A HABIT, HE MEANS THAT HE IS PHYSICALLY
DEPENDENT ON A DRUG.  WHEN HE SAYS THAT ONE DRUG IS HABIT-FORMING AND
ANOTHER IS NOT, HE MEANS THAT THE FIRST DRUG IS ONE ON WHICH PHYSICAL
DEPENDENCE CAN BE DEVELOPED AND THAT THE SECOND IS A DRUG ON WHICH
PHYSICAL DEPENDENCE CANNOT BE DEVELOPED.  PHYSICAL DEPENDENCE IS A REAL
PHYSIOLOGICAL DISTURBANCE.  IT IS ASSOCIATED WITH THE DEVELOPMENT OF
HYPEREXCITABILITY IN REFLEXES MEDIATED THROUGH MULTINEURONE ARCS.  IT
CAN BE INDUCED IN ANIMALS, IT HAS BEEN SHOWN TO OCCUR IN THE PARALYZED
HIND LIMBS OF ADDICTED CHRONIC SPINAL DOGS, AND ALSO HAS BEEN PRODUCED
IN DOGS WHOSE CEREBRAL CORTEX HAS BEEN REMOVED."  REPORT ON NARCOTIC
ADDICTION, 165 A.M.A.J. 1707, 1713. 

SOME SAY THE ADDICT HAS A DISEASE.  SEE HESSE, NARCOTICS AND DRUG
ADDICTION (1946), P. 40 ET SEQ. 

OTHERS SAY ADDICTION IS NOT A DISEASE BUT "A SYMPTOM OF A MENTAL OR
PSYCHIATRIC DISORDER."  H.R. REP. NO. 2388, 84TH CONG., 2D SESS., P.
8.  AND SEE PRESENT STATUS OF NARCOTIC ADDICTION, 138 A.M.A.J. 1019,
1026; NARCOTIC ADDICTION, REPORT TO ATTORNEY GENERAL BROWN BY CITIZENS
ADVISORY COMMITTEE TO THE ATTORNEY GENERAL ON CRIME PREVENTION (1954),
P. 12; FINESTONE, NARCOTICS AND CRIMINALITY, 22 LAW & CONTEMP.  PROB. 
69, 83-85 (1957). 

THE EXTREME SYMPTOMS OF ADDICTION HAVE BEEN DESCRIBED AS FOLLOWS: 

"TO BE A CONFIRMED DRUG ADDICT IS TO BE ONE OF THE WALKING DEAD  ...
.  THE TEETH HAVE ROTTED OUT; THE APPETITE IS LOST AND THE STOMACH AND
INTESTINES DON'T FUNCTION PROPERLY.  THE GALL BLADDER BECOMES INFLAMED;
EYES AND SKIN TURN A BILLIOUS YELLOW.  IN SOME CASES MEMBRANES OF THE
NOSE TURN A FLAMING RED; THE PARTITION SEPARATING THE NOSTRILS IS EATEN
AWAY - BREATHING IS DIFFICULT.  OXYGEN IN THE BLOOD DECREASES;
BRONCHITIS AND TUBERCULOSIS DEVELOP.  GOOD TRAITS OF CHARACTER
DISAPPEAR AND BAD ONES EMERGE.  SEX ORGANS BECOME AFFECTED.  VEINS
COLLAPSE AND LIVID PURPLISH SCARS REMAIN.  BOILS AND ABSCESSES PLAGUE
THE SKIN; GNAWING PAIN RACKS THE BODY.  NERVES SNAP; VICIOUS TWITCHING
DEVELOPS.  IMAGINARY AND FANTASTIC FEARS BLIGHT THE MIND AND SOMETIMES
COMPLETE INSANITY RESULTS.  OFTEN TIMES, TOO, DEATH COMES - MUCH TOO
EARLY IN LIFE  ...  .  SUCH IS THE TORMENT OF BEING A DRUG ADDICT; SUCH
IS THE PLAGUE OF BEING ONE OF THE WALKING DEAD."  N.Y.L.J., JUNE 8,
1960, P. 4, COL. 2. 

SOME STATES PUNISH ADDICTION, THOUGH MOST DO NOT.  SEE S. DOC. NO.
120, 84TH CONG., 2D SESS., PP. 41, 42.  NOR DOES THE UNIFORM NARCOTIC
DRUG ACT, FIRST APPROVED IN 1932 AND NOW IN EFFECT IN MOST OF THE
STATES.  GREAT BRITAIN, BEGINNING IN 1920 PLACED "ADDICTION AND THE
TREATMENT OF ADDICTS SQUARELY AND EXCLUSIVELY INTO THE HANDS OF THE
MEDICAL PROFESSION."  LINDESMITH, THE BRITISH SYSTEM OF NARCOTICS
CONTROL, 22 LAW & CONTEMP.  PROB.  138 (1957).  IN ENGLAND THE DOCTOR
"HAS ALMOST COMPLETE PROFESSIONAL AUTONOMY IN REACHING DECISIONS ABOUT
THE TREATMENT OF ADDICTS."  SCHUR, BRITISH NARCOTICS POLICIES, 51 J.
CRIM. L. & CRIMINOLOGY 619, 621 (1961).  UNDER BRITISH LAW "ADDICTS ARE
PATIENTS, NOT CRIMINALS."  IBID.  ADDICTS HAVE NOT DISAPPEARED IN
ENGLAND BUT THEY HAVE DECREASED IN NUMBER (ID., AT 622) AND THERE IS
NOW LITTLE "ADDICT-CRIME" THERE.  ID., AT 623. 

THE FACT THAT ENGLAND TREATS THE ADDICT AS A SICK PERSON, WHILE A FEW
OF OUR STATES, INCLUDING CALIFORNIA, TREAT HIM AS A CRIMINAL, DOES NOT,
OF COURSE, ESTABLISH THE UNCONSTITUTIONALITY OF CALIFORNIA'S PENAL
LAW.  BUT WE DO KNOW THAT THERE IS "A HARD CORE" OF "CHRONIC AND
INCURABLE DRUG ADDICTS WHO, IN REALITY, HAVE LOST THEIR POWER OF SELF
CONTROL."  S. REP. NO. 2033, 84TH CONG., 2D SESS., P. 8.  THERE HAS
BEEN A CONTROVERSY OVER THE TYPE OF TREATMENT - WHETHER ENFORCED
HOSPITALIZATION OR AMBULATORY CARE IS BETTER.  H.R. REP. NO. 2388, 84TH
CONG., 2D SESS., PP. 66-68.  BUT THERE IS LITTLE DISAGREEMENT WITH THE
STATEMENT OF CHARLES WINICK: "THE HOLD OF DRUGS ON PERSONS ADDICTED TO
THEM IS SO GREAT THAT IT WOULD BE ALMOST APPROPRIATE TO REVERSE THE OLD
ADAGE AND SAY THAT OPIUM DERIVATIVES REPRESENT THE RELIGION OF THE
PEOPLE WHO USE THEM."  NARCOTICS ADDICTION AND ITS TREATMENT, 22 LAW &
CONTEMP.  PROB.  9 (1957).  THE ABSTINENCE SYMPTOMS AND THEIR TREATMENT
ARE WELL KNOWN.  ID., AT 10-11.  CURE IS DIFFICULT BECAUSE OF THE
COMPLEX OF FORCES THAT MAKE FOR ADDICTION.  ID., AT 18-23.  "AFTER THE
WITHDRAWAL PERIOD, VOCATIONAL ACTIVITIES, RECREATION, AND SOME KIND OF
PSYCHOTHERAPY HAVE A MAJOR ROLE IN THE TREATMENT PROGRAM, WHICH IDEALLY
LASTS FROM FOUR TO SIX MONTHS."  ID., AT 23-24.  DR. MARIE NYSWANDER
TELLS US THAT NORMALLY A DRUG ADDICT MUST BE HOSPITALIZED IN ORDER TO
BE CURED.  THE DRUG ADDICT AS A PATIENT (1956), P. 138. 

THE IMPACT THAT AN ADDICT HAS ON A COMMUNITY CAUSES ALARM AND OFTEN
LEADS TO PUNITIVE MEASURES.  THOSE MEASURES ARE JUSTIFIED WHEN THEY
RELATE TO ACTS OF TRANSGRESSIONS.  BUT I DO NOT SEE HOW UNDER OUR
SYSTEM BEING AN ADDICT CAN BE PUNISHED AS A CRIME.  IF ADDICTS CAN BE
PUNISHED FOR THEIR ADDICTION, THEN THE INSANE CAN ALSO BE PUNISHED FOR
THEIR INSANITY.  EACH HAS A DISEASE AND EACH MUST BE TREATED AS A SICK
PERSON.  (FN2)  AS CHARLES WINICK HAS SAID: 

"THERE CAN BE NO SINGLE PROGRAM FOR THE ELIMINATION OF AN ILLNESS AS
COMPLEX AS DRUG ADDICTION, WHICH CARRIES SO MUCH EMOTIONAL FREIGHT IN
THE COMMUNITY.  COOPERATIVE INTERDISCIPLINARY RESEARCH AND ACTION, MORE
LOCAL COMMUNITY PARTICIPATION, TRAINING THE VARIOUS HEALING PROFESSIONS
IN THE TECHNIQUES OF DEALING WITH ADDICTS, REGIONAL TREATMENT
FACILITIES, DEMONSTRATION CENTERS, AND A THOROUGH AND VIGOROUS POST
TREATMENT REHABILITATION PROGRAM WOULD CERTAINLY APPEAR TO BE AMONG THE
MINIMUM REQUIREMENTS FOR ANY ATTEMPT TO COME TO TERMS WITH THIS
PROBLEM.  THE ADDICT SHOULD BE VIEWED AS A SICK PERSON, WITH A CHRONIC
DISEASE WHICH REQUIRES ALMOST EMERGENCY ACTION."  22 LAW & CONTEMP. 
PROB.  9, 33 (1957). 

THE COUNCIL ON MENTAL HEALTH REPORTS THAT CRIMINAL SENTENCES FOR
ADDICTS INTERFERES "WITH THE POSSIBLE TREATMENT AND REHABILITATION OF
ADDICTS AND THEREFORE SHOULD BE ABOLISHED."  165 A.M.A.J. 1968, 1972. 

THE COMMAND OF THE EIGHTH AMENDMENT, BANNING "CRUEL AND UNUSUAL
PUNISHMENTS," STEMS FROM THE BILL OF RIGHTS OF 1688.  SEE FRANCIS V.
RESWEBER, 329 U.S. 459, 463.  AND IT IS APPLICABLE TO THE STATES BY
REASON OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IBID. 
THE HISTORIC PUNISHMENTS THAT WERE CRUEL AND UNUSUAL INCLUDED "BURNING
AT THE STAKE, CRUCIFIXION, BREAKING ON THE WHEEL" (IN RE KEMMLER, 136
U.S. 436, 446), QUARTERING, THE RACK AND THUMBSCREW (SEE CHAMBERS V.
FLORIDA, 309 U.S. 227, 237), AND IN SOME CIRCUMSTANCES EVEN SOLITARY
CONFINEMENT (SEE MEDLEY, 134 U.S. 160, 167, 168). 

THE QUESTION PRESENTED IN THE EARLIER CASES CONCERNED THE DEGREE OF
SEVERITY WITH WHICH A PARTICULAR OFFENSE WAS PUNISHED OR THE ELEMENT OF
CRUELTY PRESENT.  (FN3)  A PUNISHMENT OUT OF ALL PROPORTION TO THE
OFFENSE MAY BRING IT WITHIN THE BAN AGAINST "CRUEL AND UNUSUAL
PUNISHMENTS."  SEE O'NEIL V. VERMONT, 144 U.S. 323, 331.  SO MAY THE
CRUELTY OF THE METHOD OF PUNISHMENT, AS, FOR EXAMPLE, DISEMBOWELING A
PERSON ALIVE.  SEE WILKERSON V. UTAH, 99 U.S. 130, 135.  BUT THE
PRINCIPLE THAT WOULD DENY POWER TO EXACT CAPITAL PUNISHMENT FOR A PETTY
CRIME WOULD ALSO DENY POWER TO PUNISH A PERSON BY FINE OR IMPRISONMENT
FOR BEING SICK. 

THE EIGHTH AMENDMENT EXPRESSES THE REVULSION OF CIVILIZED MAN AGAINST
BARBAROUS ACTS - THE "CRY OF HORROR" AGAINST MAN'S INHUMANITY TO HIS
FELLOW MAN.  SEE O'NEIL V. VERMONT, SUPRA, AT 340 (DISSENTING OPINION);
FRANCIS V. RESWEBER, SUPRA, AT 473 (DISSENTING OPINION). 

BY THE TIME OF COKE, ENLIGHTENMENT WAS COMING AS RESPECTS THE
INSANE.  COKE SAID THAT THE EXECUTION OF A MADMAN "SHOULD BE A
MISERABLE SPECTACLE, BOTH AGAINST LAW, AND OF EXTREAME INHUMANITY AND
CRUELTY, AND CAN BE NO EXAMPLE TO OTHERS."  6 COKE'S THIRD INST.  (4TH
ED. 1797), P. 6.  BLACKSTONE ENDORSED THIS VIEW OF COKE.  4
COMMENTARIES (LEWIS ED. 1897), P. 25. 

WE SHOULD SHOW THE SAME DISCERNMENT RESPECTING DRUG ADDICTION.  THE
ADDICT IS A SICK PERSON.  HE MAY, OF COURSE, BE CONFINED FOR TREATMENT
OR FOR THE PROTECTION OF SOCIETY.  (FN4)  CRUEL AND UNUSUAL PUNISHMENT
RESULTS NOT FROM CONFINEMENT, BUT FROM CONVICTING THE ADDICT OF A
CRIME.  THE PURPOSE OF SEC. 11721 IS NOT TO CURE, BUT TO PENALIZE. 
WERE THE PURPOSE TO CURE, THERE WOULD BE NO NEED FOR A MANDATORY JAIL
TERM OF NOT LESS THAN 90 DAYS.  CONTRARY TO MY BROTHER CLARK, I THINK
THE MEANS MUST STAND CONSTITUTIONAL SCRUTINY, AS WELL AS THE END TO BE
ACHIEVED.  A PROSECUTION FOR ADDICTION, WITH ITS RESULTING STIGMA AND
IRREPARABLE DAMAGE TO THE GOOD NAME OF THE ACCUSED, CANNOT BE JUSTIFIED
AS A MEANS OF PROTECTING SOCIETY, WHERE A CIVIL COMMITMENT WOULD DO AS
WELL.  INDEED, IN SEC. 5350 OF THE WELFARE AND INSTITUTIONS CODE,
CALIFORNIA HAS EXPRESSLY PROVIDED FOR CIVIL PROCEEDINGS FOR THE
COMMITMENT OF HABITUAL ADDICTS.  SECTION 11721 IS, IN REALITY, A DIRECT
ATTEMPT TO PUNISH THOSE THE STATE CANNOT COMMIT CIVILLY.  (FN5)  THIS
PROSECUTION HAS NO RELATIONSHIP TO THE CURING OF AN ILLNESS.  INDEED,
IT CANNOT, FOR THE PROSECUTION IS AIMED AT PENALIZING AN ILLNESS,
RATHER THAN AT PROVIDING MEDICAL CARE FOR IT. WE WOULD FORGET THE
TEACHINGS OF THE EIGHTH AMENDMENT IF WE ALLOWED SICKNESS TO BE MADE A
CRIME AND PERMITTED SICK PEOPLE TO BE PUNISHED FOR BEING SICK.  THIS
AGE OF ENLIGHTENMENT CANNOT TOLERATE SUCH BARBAROUS ACTION. 

FN1  DRUG ADDICTION:  CRIME OR DISEASE?  (1961), P. XIV.  "  ...
EVEN IF ONE ACCEPTS THE LOWEST ESTIMATES OF THE NUMBER OF ADDICTS IN
THIS COUNTRY THERE WOULD STILL BE MORE HERE THAN IN ALL THE COUNTRIES
OF EUROPE COMBINED.  CHICAGO AND NEW YORK CITY, WITH A COMBINED
POPULATION OF ABOUT 11 MILLION OR ONE-FIFTH THAT OF BRITAIN, ARE
ORDINARILY ESTIMATED TO HAVE ABOUT 30,000 ADDICTS, WHICH IS FROM THIRTY
TO FIFTY TIMES AS MANY AS THERE ARE SAID TO BE IN BRITAIN." 

FN2  "THE SICK ADDICT MUST BE QUARANTINED UNTIL CURED, AND THEN
CAREFULLY WATCHED UNTIL FULLY REHABILITATED TO A LIFE OF NORMALCY." 
NARCOTICS, N.Y. LEG.  DOC.  NO. 27 (1952), P. 116.  AND SEE THE REPORT
OF JUDGE MORRIS PLOSCOWE PRINTED AS APPENDIX A, DRUG ADDICTION:  CRIME
OR DISEASE?  (1961), PP. 18, 19-20, 21. 

"THESE PREDILECTIONS FOR STRINGENT LAW ENFORCEMENT AND SEVERER
PENALTIES AS ANSWERS TO THE PROBLEMS OF DRUG ADDICTION REFLECT THE
PHILOSOPHY AND THE TEACHINGS OF THE BUREAU OF NARCOTICS.  FOR YEARS THE
BUREAU HAS SUPPORTED THE DOCTRINE THAT IF PENALTIES FOR NARCOTIC DRUG
VIOLATIONS WERE SEVERE ENOUGH AND IF THEY COULD BE ENFORCED STRICTLY
ENOUGH, DRUG ADDICTION AND THE DRUG TRAFFIC WOULD LARGELY DISAPPEAR
FROM THE AMERICAN SCENE.  THIS APPROACH TO PROBLEMS OF NARCOTICS HAS
RESULTED IN SPECTACULAR MODIFICATIONS OF OUR NARCOTIC DRUG LAWS ON BOTH
THE STATE AND FEDERAL LEVEL ...  . 

     *         *         * *         * 

"STRINGENT LAW ENFORCEMENT HAS ITS PLACE IN ANY SYSTEM OF CONTROLLING
NARCOTIC DRUGS.  HOWEVER, IT IS BY NO MEANS THE COMPLETE ANSWER TO
AMERICAN PROBLEMS OF DRUG ADDICTION.  IN THE FIRST PLACE IT IS DOUBTFUL
WHETHER DRUG ADDICTS CAN BE DETERRED FROM USING DRUGS BY THREATS OF
JAIL OR PRISON SENTENCES.  THE BELIEF THAT FEAR OF PUNISHMENT IS A
VITAL FACTOR IN DETERRING AN ADDICT FROM USING DRUGS RESTS UPON A
SUPERFICIAL VIEW OF THE DRUG ADDICTION PROCESS AND THE NATURE OF DRUG
ADDICTION ...  . 

"  ...  THE VERY SEVERITY OF LAW ENFORCEMENT TENDS TO INCREASE THE
PRICE OF DRUGS ON THE ILLICIT MARKET AND THE PROFITS TO BE MADE
THEREFROM.  THE LURE OF PROFITS AND THE RISKS OF THE TRAFFIC SIMPLY
CHALLENGE THE INGENUITY OF THE UNDERWORLD PEDDLERS TO FIND NEW CHANNELS
OF DISTRIBUTION AND NEW CUSTOMERS, SO THAT PROFITS CAN BE MAINTAINED
DESPITE THE RISKS INVOLVED.  SO LONG AS A NON-ADDICT PEDDLER IS WILLING
TO TAKE THE RISK OF SERVING AS A WHOLESALER OF DRUGS, HE CAN ALWAYS
FIND ADDICT PUSHERS OR PEDDLERS TO HANDLE THE RETAIL ASPECTS OF THE
BUSINESS IN RETURN FOR A SUPPLY OF THE DRUGS FOR THEMSELVES.  THUS, IT
IS THE BELIEF OF THE AUTHOR OF THIS REPORT THAT NO MATTER HOW SEVERE
LAW ENFORCEMENT MAY BE, THE DRUG TRAFFIC CANNOT BE ELIMINATED UNDER
PRESENT PROHIBITORY REPRESSIVE STATUTES." 

FN3  SEE 3 CATHOLIC U.L. REV. 117 (1953); 31 MARQ.  L. REV. 108
(1947); 22 ST. JOHN'S L. REV. 270 (1948); 2 STAN.  L. REV. 174 (1949);
33 VA. L. REV. 348 (1947); 21 TUL.  L. REV. 480 (1947); 1960 WASH.
U.L.Q., P. 160. 

FN4  AS TO THE INSANE, SEE LYNCH V. OVERHOLSER, 369 U.S. 705; NOTE, 1
L.R.A. (N.S.), P. 540 ET SEQ. 

FN5  THE DIFFERENCE BETWEEN SEC. 5350 AND SEC. 11721 IS THAT THE
FORMER AIMS AT TREATMENT OF THE ADDICTION, WHEREAS SEC. 11721 DOES
NOT.  THE LATTER CANNOT BE CONSTRUED TO PROVIDE TREATMENT, UNLESS JAIL
SENTENCES, WITHOUT MORE, ARE SUDDENLY TO BECOME MEDICINAL.  A
COMPARISON OF THE LENGTHS OF CONFINEMENT UNDER THE TWO SECTIONS IS
IRRELEVANT, FOR IT IS THE PURPOSE OF THE CONFINEMENT THAT MUST BE
MEASURED AGAINST THE CONSTITUTIONAL PROHIBITION OF CRUEL AND UNUSUAL
PUNISHMENTS. 

HEALTH AND SAFETY CODE SEC. 11391, TO BE SURE, INDICATES THAT PERHAPS
SOME FORM OF TREATMENT MAY BE GIVEN AN ADDICT CONVICTED UNDER SEC.
11721.  SECTION 11391, SO FAR AS HERE RELEVANT, PROVIDES: 

"NO PERSON SHALL TREAT AN ADDICT FOR ADDICTION EXCEPT IN ONE OF THE
FOLLOWING: 

"(A)  AN INSTITUTION APPROVED BY THE BOARD OF MEDICAL EXAMINERS, AND
WHERE THE PATIENT IS AT ALL TIMES KEPT UNDER RESTRAINT AND CONTROL. 

"(B)  A CITY OR COUNTY JAIL. 

"(C)  A STATE PRISON. 

"(D)  A STATE NARCOTIC HOSPITAL. 

"(E)  A STATE HOSPITAL. 

"(F)  A COUNTY HOSPITAL. 

"THIS SECTION DOES NOT APPLY DURING EMERGENCY TREATMENT OR WHERE THE
PATIENT'S ADDICTION IS COMPLICATED BY THE PRESENCE OF INCURABLE
DISEASE, SERIOUS ACCIDENT, OR INJURY, OR THE INFIRMITIES OF OLD AGE." 

EITHER PART OR THE WHOLE OF THE MANDATORY 90-DAY PRISON TERM IMPOSED BY
SEC. 11721.  SHOULD THE NECESSITY FOR TREATMENT END BEFORE THE 90-DAY
TERM IS CONCLUDED, OR SHOULD NO TREATMENT BE GIVEN, THE ADDICT CLEARLY
WOULD BE UNDERGOING PUNISHMENT FOR AN ILLNESS.  THEREFORE, REFERENCE TO
SEC. 11391 WILL NOT SOLVE OR ALLEVIATE THE PROBLEM OF CRUEL AND UNUSUAL
PUNISHMENT PRESENTED BY THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I AM NOT PREPARED TO HOLD THAT ON THE PRESENT STATE OF MEDICAL
KNOWLEDGE IT IS COMPLETELY IRRATIONAL AND HENCE UNCONSTITUTIONAL FOR A
STATE TO CONCLUDE THAT NARCOTICS ADDICTION IS SOMETHING OTHER THAN AN
ILLNESS NOR THAT IT AMOUNTS TO CRUEL AND UNUSUAL PUNISHMENT FOR THE
STATE TO SUBJECT NARCOTICS ADDICTS TO ITS CRIMINAL LAW.  INSOFAR AS
ADDICTION MAY BE IDENTIFIED WITH THE USE OR POSSESSION OF NARCOTICS
WITHIN THE STATE (OR, I WOULD SUPPOSE, WITHOUT THE STATE), IN VIOLATION
OF LOCAL STATUTES PROHIBITING SUCH ACTS, IT MAY SURELY BE REACHED BY
THE STATE'S CRIMINAL LAW.  BUT IN THIS CASE THE TRIAL COURT'S
INSTRUCTIONS PERMITTED THE JURY TO FIND THE APPELLANT GUILTY ON NO MORE
PROOF THAN THAT HE WAS PRESENT IN CALIFORNIA WHILE HE WAS ADDICTED TO
NARCOTICS.*  SINCE ADDICTION ALONE CANNOT REASONABLY BE THOUGHT TO
AMOUNT TO MORE THAN A COMPELLING PROPENSITY TO USE NARCOTICS, THE
EFFECT OF THIS INSTRUCTION WAS TO AUTHORIZE CRIMINAL PUNISHMENT FOR A
BARE DESIRE TO COMMIT A CRIMINAL ACT. 

*THE JURY WAS INSTRUCTED THAT "IT IS NOT INCUMBENT UPON THE PEOPLE TO
PROVE THE UNLAWFULNESS OF DEFENDANT'S USE OF NARCOTICS.  ALL THAT THE
PEOPLE MUST SHOW IS EITHER THAT THE DEFENDANT DID USE A NARCOTIC IN LOS
ANGELES COUNTY, OR THAT WHILE IN THE CITY OF LOS ANGELES HE WAS
ADDICTED TO THE USE OF NARCOTICS."  ALTHOUGH THE JURY WAS TOLD THAT IT
SHOULD ACQUIT IF THE APPELLANT PROVED THAT HIS "BEING ADDICTED TO THE
USE OF NARCOTICS WAS ADMINISTERED BY OR UNDER THE DIRECTION OF A PERSON
LICENSED BY THE STATE OF CALIFORNIA TO PRESCRIBE AND ADMINISTER
NARCOTICS," THIS PART OF THE INSTRUCTION DID NOT COVER OTHER POSSIBLE
LAWFUL USES WHICH COULD HAVE PRODUCED THE APPELLANT'S ADDICTION. 

IF THE CALIFORNIA STATUTE REACHES THIS TYPE OF CONDUCT, AND FOR
PRESENT PURPOSES WE MUST ACCEPT THE TRIAL COURT'S CONSTRUCTION AS
BINDING, TERMINIELLO V. CHICAGO, 337 U.S. 1, 4, IT IS AN ARBITRARY
IMPOSITION WHICH EXCEEDS THE POWER THAT A STATE MAY EXERCISE IN
ENACTING ITS CRIMINAL LAW.  ACCORDINGLY, I AGREE THAT THE APPLICATION
OF THE CALIFORNIA STATUTE WAS UNCONSTITUTIONAL IN THIS CASE AND JOIN
THE JUDGMENT OF REVERSAL. 

MR. JUSTICE CLARK, DISSENTING. 

THE COURT FINDS SEC. 11721 OF CALIFORNIA'S HEALTH AND SAFETY CODE,
MAKING IT AN OFFENSE TO "BE ADDICTED TO THE USE OF NARCOTICS,"
VIOLATIVE OF DUE PROCESS AS "A CRUEL AND UNUSUAL PUNISHMENT."  I CANNOT
AGREE. 

THE STATUTE MUST FIRST BE PLACED IN PERSPECTIVE.  CALIFORNIA HAS A
COMPREHENSIVE AND ENLIGHTENED PROGRAM FOR THE CONTROL OF NARCOTISM
BASED ON THE OVERRIDING POLICY OF PREVENTION AND CURE.  IT IS THE
PRODUCT OF AN EXTENSIVE INVESTIGATION MADE IN THE MID-FIFTIES BY A
COMMITTEE OF DISTINGUISHED SCIENTISTS, DOCTORS, LAW ENFORCEMENT
OFFICERS AND LAYMEN APPOINTED BY THE THEN ATTORNEY GENERAL, NOW
GOVERNOR, OF CALIFORNIA.  THE COMMITTEE FILED A DETAILED STUDY ENTITLED
"REPORT ON NARCOTIC ADDICTION" WHICH WAS GIVEN CONSIDERABLE ATTENTION. 
NO RECOMMENDATION WAS MADE THEREIN FOR THE REPEAL OF SEC. 11721, AND
THE STATE LEGISLATURE IN ITS DISCRETION CONTINUED THE POLICY OF THAT

APART FROM PROHIBITING SPECIFIC ACTS SUCH AS THE PURCHASE, POSSESSION
AND SALE OF NARCOTICS, CALIFORNIA HAS TAKEN CERTAIN LEGISLATIVE STEPS
IN REGARD TO THE STATUS OF BEING A NARCOTIC ADDICT - A CONDITION
COMMONLY RECOGNIZED AS A THREAT TO THE STATE AND TO THE INDIVIDUAL. 
THE CODE DEALS WITH THE PROBLEM IN REALISTIC STAGES.  AT ITS INCIPIENCY
NARCOTIC ADDICTION IS HANDLED UNDER SEC. 11721 OF THE HEALTH AND SAFETY
CODE WHICH IS AT ISSUE HERE.  IT PROVIDES THAT A PERSON FOUND TO BE
ADDICTED TO THE USE OF NARCOTICS SHALL SERVE A TERM IN THE COUNTY JAIL
OF NOT LESS THAN 90 DAYS NOR MORE THAN ONE YEAR, WITH THE MINIMUM 90
DAY CONFINEMENT APPLYING IN ALL CASES WITHOUT EXCEPTION.  PROVISION IS
MADE FOR PAROLE WITH PERIODIC TESTS TO DETECT READDICTION. 

THE TRIAL COURT DEFINED "ADDICTED TO NARCOTICS" AS USED IN SEC. 11721
IN THE FOLLOWING CHARGE TO THE JURY: 

"THE WORD 'ADDICTED' MEANS, STRONGLY DISPOSED TO SOME TASTE OR
PRACTICE OR HABITUATED, ESPECIALLY TO DRUGS.  IN ORDER TO INQUIRE AS TO
WHETHER A PERSON IS ADDICTED TO THE USE OF NARCOTICS IS IN EFFECT AN
INQUIRY AS TO HIS HABIT IN THAT REGARD.  DOES HE USE THEM HABITUALLY. 
TO USE THEM OFTEN OR DAILY IS, ACCORDING TO THE ORDINARY ACCEPTANCE OF
THOSE WORDS, TO USE THEM HABITUALLY." 

THERE WAS NO SUGGESTION THAT THE TERM "NARCOTIC ADDICT" AS HERE USED
INCLUDED A PERSON WHO ACTED WITHOUT VOLITION OR WHO HAD LOST THE POWER
OF SELF-CONTROL.  ALTHOUGH THE SECTION IS PENAL IN APPEARANCE - PERHAPS
A CARRY-OVER FROM A LESS SOPHISTICATED APPROACH - ITS PRESENT
PROVISIONS ARE QUITE SIMILAR TO THOSE FOR CIVIL COMMITMENT AND
TREATMENT OF ADDICTS WHO HAVE LOST THE POWER OF SELF-CONTROL, AND ITS
PRESENT PURPOSE IS REFLECTED IN A STATEMENT WHICH CLOSELY FOLLOWS SEC.
11721: "THE REHABILITATION OF NARCOTICS ADDICTS AND THE PREVENTION OF
CONTINUED ADDICTION TO NARCOTICS IS A MATTER OF STATEWIDE CONCERN." 
CALIFORNIA HEALTH AND SAFETY CODE SEC. 11728. 

WHERE NARCOTIC ADDICTION HAS PROGRESSED BEYOND THE INCIPIENT,
VOLITIONAL STATE, CALIFORNIA PROVIDES FOR COMMITMENT OF THREE MONTHS TO
TWO YEARS IN A STATE HOSPITAL.  CALIFORNIA WELFARE AND INSTITUTIONS
CODE SEC. 5355.  FOR THE PURPOSES OF THIS PROVISION, A NARCOTIC ADDICT
IS DEFINED AS: 

"ANY PERSON WHO HABITUALLY TAKES OR OTHERWISE USES TO THE EXTENT OF
HAVING LOST THE POWER OF SELF-CONTROL ANY OPIUM, MORPHINE, COCAINE, OR
OTHER NARCOTIC DRUG AS DEFINED IN ARTICLE 1 OF CHAPTER 1 OF DIVISION 10
OF THE HEALTH AND SAFETY CODE."  CALIFORNIA WELFARE AND INSTITUTIONS
CODE SEC. 5350. 

THIS PROCEEDING IS CLEARLY CIVIL IN NATURE WITH A PURPOSE OF
REHABILITATION AND CURE.  SIGNIFICANTLY, IF IT IS FOUND THAT A PERSON
COMMITTED UNDER SEC. 5355 WILL NOT RECEIVE SUBSTANTIAL BENEFIT FROM
FURTHER HOSPITAL TREATMENT AND IS NOT DANGEROUS TO SOCIETY, HE MAY BE
DISCHARGED - BUT ONLY AFTER A MINIMUM CONFINEMENT OF THREE MONTHS. 
SEC. 5355.1.    THUS, THE "CRIMINAL" PROVISION APPLIES TO THE INCIPIENT
NARCOTIC ADDICT WHO RETAINS SELF-CONTROL, REQUIRING CONFINEMENT OF
THREE MONTHS TO ONE YEAR AND PAROLE WITH FREQUENT TESTS TO DETECT
RENEWED USE OF DRUGS.  ITS OVERRIDING PURPOSE IS TO CURE THE LESS
SERIOUSLY ADDICTED PERSON BY PREVENTING FURTHER USE.  ON THE OTHER
HAND, THE "CIVIL" COMMITMENT PROVISION DEALS WITH ADDICTS WHO HAVE LOST
THE POWER OF SELF-CONTROL, REQUIRING HOSPITALIZATION UP TO TWO YEARS. 
EACH DEALS WITH A DIFFERENT TYPE OF ADDICT BUT WITH A COMMON PURPOSE. 
THIS IS MOST APPARENT WHEN THE SECTIONS OVERLAP:  IF AFTER CIVIL
COMMITMENT OF AN ADDICT IT IS FOUND THAT HOSPITAL TREATMENT WILL NOT BE
HELPFUL, THE ADDICT IS CONFINED FOR A MINIMUM PERIOD OF THREE MONTHS IN
THE SAME MANNER AS IS THE VOLITIONAL ADDICT UNDER THE "CRIMINAL"
PROVISION. 

IN THE INSTANT CASE THE PROCEEDINGS AGAINST THE PETITIONER WERE
BROUGHT UNDER THE VOLITIONAL-ADDICT SECTION.  THERE WAS TESTIMONY THAT
HE HAD BEEN USING DRUGS ONLY FOUR MONTHS WITH THREE TO FOUR RELATIVELY
MILD DOSES A WEEK.  AT ARREST AND TRIAL HE APPEARED NORMAL.  HIS
TESTIMONY WAS CLEAR AND CONCISE, BEING SIMPLY THAT HE HAD NEVER USED
DRUGS.  THE SCABS AND POCKS ON HIS ARMS AND BODY WERE CAUSED, HE SAID,
BY "OVERSEAS SHOTS" ADMINISTERED DURING ARMY SERVICE PREPARATORY TO
FOREIGN ASSIGNMENT.  HE WAS VERY ARTICULATE IN HIS TESTIMONY BUT THE
JURY DID NOT BELIEVE HIM, APPARENTLY BECAUSE HE HAD TOLD THE CLINICAL
EXPERT WHILE BEING EXAMINED AFTER ARREST THAT HE HAD BEEN USING DRUGS,
AS I HAVE STATED ABOVE.  THE OFFICER WHO ARRESTED HIM ALSO TESTIFIED TO
LIKE STATEMENTS AND TO SCABS - SOME 10 OR 15 DAYS OLD - SHOWING
NARCOTIC INJECTIONS.  THERE WAS NO EVIDENCE IN THE RECORD OF WITHDRAWAL
SYMPTOMS.  OBVIOUSLY HE COULD NOT HAVE BEEN COMMITTED UNDER SEC. 5355
AS ONE WHO HAD COMPLETELY "LOST THE POWER OF SELF-CONTROL."  THE JURY
WAS INSTRUCTED THAT NARCOTIC "ADDICTION" AS USED IN SEC. 11721 MEANT
STRONGLY DISPOSED TO A TASTE OR PRACTICE OR HABIT OF ITS USE, INDICATED
BY THE USE OF NARCOTICS OFTEN OR DAILY.  A GENERAL VERDICT WAS RETURNED
AGAINST PETITIONER, AND HE WAS ORDERED CONFINED FOR 90 DAYS TO BE
FOLLOWED BY A TWO-YEAR PAROLE DURING WHICH HE WAS REQUIRED TO TAKE
PERIODIC NALLINE TESTS. 

THE MAJORITY STRIKES DOWN THE CONVICTION PRIMARILY ON THE GROUNDS
THAT PETITIONER WAS DENIED DUE PROCESS BY THE IMPOSITION OF CRIMINAL
PENALTIES FOR NOTHING MORE THAN BEING IN A STATUS.  THIS VIEWPOINT IS
PREMISED UPON THE THEME THAT SEC. 11721 IS A "CRIMINAL" PROVISION
AUTHORIZING A PUNISHMENT, FOR THE MAJORITY ADMITS THAT "A STATE MIGHT
ESTABLISH A PROGRAM OF COMPULSORY TREATMENT FOR THOSE ADDICTED TO
NARCOTICS" WHICH "MIGHT REQUIRE PERIODS OF INVOLUNTARY CONFINEMENT."  I
SUBMIT THAT CALIFORNIA HAS DONE EXACTLY THAT.  THE MAJORITY'S ERROR IS
IN INSTRUCTING THE CALIFORNIA LEGISLATURE THAT HOSPITALIZATION IS THE
ONLY TREATMENT FOR NARCOTICS ADDICTION - THAT ANYTHING LESS IS A
PUNISHMENT DENYING DUE PROCESS.  CALIFORNIA HAS FOUND OTHERWISE AFTER A
STUDY WHICH I SUGGEST WAS MORE EXTENSIVE THAN THAT CONDUCTED BY THE
COURT.  EVEN IN CALIFORNIA'S PROGRAM FOR HOSPITAL COMMITMENT OF
NONVOLITIONAL NARCOTIC ADDICTS - WHICH THE MAJORITY APPROVES - IT IS
RECOGNIZED THAT SOME ADDICTS WILL NOT RESPOND TO OR DO NOT NEED
HOSPITAL TREATMENT.  AS TO THESE PERSONS ITS PROVISIONS ARE IDENTICAL
TO THOSE OF SEC. 11721 - CONFINEMENT FOR A PERIOD OF NOT LESS THAN 90
DAYS.   SECTION 11721 PROVIDES THIS CONFINEMENT AS TREATMENT FOR THE
VOLITIONAL ADDICTS TO WHOM ITS PROVISIONS APPLY, IN ADDITION TO PAROLE
WITH FREQUENT TESTS TO DETECT AND PREVENT FURTHER USE OF DRUGS.  THE
FACT THAT SEC. 11721 MIGHT BE LABELED "CRIMINAL" SEEMS IRRELEVANT,* NOT
ONLY TO THE MAJORITY'S OWN "TREATMENT" TEST BUT TO THE "CONCEPT OF
ORDERED LIBERTY" TO WHICH THE STATES MUST ATTAIN UNDER THE FOURTEENTH
AMENDMENT.  THE TEST IS THE OVERALL PURPOSE AND EFFECT OF A STATE'S
ACT, AND I SUBMIT THAT CALIFORNIA'S PROGRAM RELATIVE TO NARCOTIC
ADDICTS - INCLUDING BOTH THE "CRIMINAL" AND "CIVIL" PROVISIONS - IS
INHERENTLY ONE OF TREATMENT AND LIES WELL WITHIN THE POWER OF A STATE. 

*ANY RELIANCE UPON THE "STIGMA" OF A MISDEMEANOR CONVICTION IN THIS
CONTEXT IS MISPLACED, AS IT WOULD HARDLY BE DIFFERENT FROM THE STIGMA
OF A CIVIL COMMITMENT FOR NARCOTICS ADDICTION. 

HOWEVER, THE CASE IN SUPPORT OF THE JUDGMENT BELOW NEED NOT REST
SOLELY ON THIS READING OF CALIFORNIA LAW.  FOR EVEN IF THE OVERALL
STATUTORY SCHEME IS IGNORED AND A PURPOSE AND EFFECT OF PUNISHMENT IS
ATTACHED TO SEC. 11721, THAT PROVISION STILL DOES NOT VIOLATE THE
FOURTEENTH AMENDMENT.  THE MAJORITY ACKNOWLEDGES, AS IT MUST, THAT A
STATE CAN PUNISH PERSONS WHO PURCHASE, POSSESS OR USE NARCOTICS. 
ALTHOUGH NONE OF THESE ACTS ARE HARMFUL TO SOCIETY IN THEMSELVES, THE
STATE CONSTITUTIONALLY MAY ATTEMPT TO DETER AND PREVENT THEM THROUGH
PUNISHMENT BECAUSE OF THE GRAVE THREAT OF FUTURE HARMFUL CONDUCT WHICH
THEY POSE.  NARCOTICS ADDICTION - INCLUDING THE INCIPIENT, VOLITIONAL
ADDICTION TO WHICH THIS PROVISION SPEAKS - IS NO DIFFERENT.  CALIFORNIA
COURTS HAVE TAKEN JUDICIAL NOTICE THAT "THE INORDINATE USE OF A
NARCOTIC DRUG TENDS TO CREATE AN IRRESISTIBLE CRAVING AND FORMS A HABIT
FOR ITS CONTINUED USE UNTIL ONE BECOMES AN ADDICT, AND HE RESPECTS NO
CONVENTION OR OBLIGATION AND WILL LIE, STEAL, OR USE ANY OTHER BASE
MEANS TO GRATIFY HIS PASSION FOR THE DRUG, BEING LOST TO ALL
CONSIDERATIONS OF DUTY OR SOCIAL POSITION."  PEOPLE V. JAUREQUI, 142
CAL. APP. 2D 555, 561, 198 P.2D 896, 900 (1956).  CAN THIS COURT DENY
THE LEGISLATIVE AND JUDICIAL JUDGMENT OF CALIFORNIA THAT INCIPIENT,
VOLITIONAL NARCOTIC ADDICTION POSES A THREAT OF SERIOUS CRIME SIMILAR
TO THE THREAT INHERENT IN THE PURCHASE OR POSSESSION OF NARCOTICS?  AND
IF SUCH A THREAT IS INHERENT IN ADDICTION, CAN THIS COURT SAY THAT
CALIFORNIA IS POWERLESS TO DETER IT BY PUNISHMENT? 

IT IS NO ANSWER TO SUGGEST THAT WE ARE DEALING WITH AN INVOLUNTARY
STATUS AND THUS PENAL SANCTIONS WILL BE INEFFECTIVE AND UNFAIR.  THE
EVEN DAILY BUT NOT TO THE POINT OF LOSING SELF-CONTROL.  WHEN DEALING
WITH INVOLUNTARY ADDICTS CALIFORNIA MOVES ONLY THROUGH SEC. 5355 OF ITS
WELFARE INSTITUTIONS CODE WHICH CLEARLY IS NOT PENAL.  EVEN IF IT COULD
BE ARGUED THAT SEC. 11721 MAY NOT BE LIMITED TO VOLITIONAL ADDICTS, THE
PETITIONER IN THE INSTANT CASE UNDENIABLY RETAINED THE POWER OF SELF
CONTROL AND THUS TO HIM THE STATUTE WOULD BE CONSTITUTIONAL.  MOREOVER,
"STATUS" OFFENSES HAVE LONG BEEN KNOWN AND RECOGNIZED IN THE CRIMINAL
LAW.  4 BLACKSTONE, COMMENTARIES (JONES ED. 1916), 170.  A READY
EXAMPLE IS DRUNKENNESS, WHICH PLAINLY IS AS INVOLUNTARY AFTER ADDICTION
TO ALCOHOL AS IS THE TAKING OF DRUGS. 

NOR IS THE CONJECTURE RELEVANT THAT PETITIONER MAY HAVE ACQUIRED HIS
HABIT UNDER LAWFUL CIRCUMSTANCES.  THERE WAS NO SUGGESTION BY HIM TO
THIS EFFECT AT TRIAL, AND SURELY THE STATE NEED NOT REBUT ALL POSSIBLE
LAWFUL SOURCES OF ADDICTION AS PART OF ITS PRIMA FACIE CASE. 

THE ARGUMENT THAT THE STATUTE CONSTITUTES A CRUEL AND UNUSUAL
PUNISHMENT IS GOVERNED BY THE DISCUSSION ABOVE.  PROPERLY CONSTRUED,
THE STATUTE PROVIDES A TREATMENT RATHER THAN A PUNISHMENT.  BUT EVEN IF
INTERPRETED AS PENAL, THE SANCTION OF INCARCERATION FOR 3 TO 12 MONTHS
IS NOT UNREASONABLE WHEN APPLIED TO A PERSON WHO HAS VOLUNTARILY PLACED
HIMSELF IN A CONDITION POSING A SERIOUS THREAT TO THE STATE.  UNDER
EITHER THEORY, ITS PROVISIONS FOR 3 TO 12 MONTHS' CONFINEMENT CAN
HARDLY BE DEEMED UNREASONABLE WHEN COMPARED TO THE PROVISIONS FOR 3 TO
24 MONTHS' CONFINEMENT UNDER SEC. 5355 WHICH THE MAJORITY APPROVES. 

I WOULD AFFIRM THE JUDGMENT. 

MR. JUSTICE WHITE, DISSENTING. 

IF APPELLANT'S CONVICTION RESTED UPON SHEER STATUS, CONDITION OR
ILLNESS OR IF HE WAS CONVICTED FOR BEING AN ADDICT WHO HAD LOST HIS
POWER OF SELF-CONTROL, I WOULD HAVE OTHER THOUGHTS ABOUT THIS CASE. 
BUT THIS RECORD PRESENTS NEITHER SITUATION.  AND I BELIEVE THE COURT
HAS DEPARTED FROM ITS WISE RULE OF NOT DECIDING CONSTITUTIONAL
QUESTIONS EXCEPT WHERE NECESSARY AND FROM ITS EQUALLY SOUND PRACTICE OF
CONSTRUING STATE STATUTES, WHERE POSSIBLE, IN A MANNER SAVING THEIR
CONSTITUTIONALITY.  (FN1) 

I AM NOT AT ALL READY TO PLACE THE USE OF NARCOTICS BEYOND THE REACH
OF THE STATES' CRIMINAL LAWS.   I DO NOT CONSIDER APPELLANT'S
CONVICTION TO BE A PUNISHMENT FOR HAVING AN ILLNESS OR FOR SIMPLY BEING
IN SOME STATUS OR CONDITION, BUT RATHER A CONVICTION FOR THE REGULAR,
REPEATED OR HABITUAL USE OF NARCOTICS IMMEDIATELY PRIOR TO HIS ARREST
AND IN VIOLATION OF THE CALIFORNIA LAW.  AS DEFINED BY THE TRIAL COURT,
(FN2) ADDICTION IS THE REGULAR USE OF NARCOTICS AND CAN BE PROVED ONLY
BY EVIDENCE OF SUCH USE.  TO FIND ADDICTION IN THIS CASE THE JURY HAD
TO BELIEVE THAT APPELLANT HAD FREQUENTLY USED NARCOTICS IN THE RECENT
PAST.  (FN3)  CALIFORNIA IS ENTITLED TO HAVE ITS STATUTE AND THE RECORD
SO READ, PARTICULARLY WHERE THE STATE'S ONLY PURPOSE IN ALLOWING
PROSECUTIONS FOR ADDICTION WAS TO SUPERSEDE ITS OWN VENUE REQUIREMENTS
APPLICABLE TO PROSECUTIONS FOR THE USE OF NARCOTICS AND IN EFFECT TO
ALLOW CONVICTIONS FOR USE WHERE THERE IS NO PRECISE EVIDENCE OF THE
COUNTY WHERE THE USE TOOK PLACE.  (FN4) 

NOR DO I FIND ANY INDICATIONS IN THIS RECORD THAT CALIFORNIA WOULD
APPLY SEC. 11721 TO THE CASE OF THE HELPLESS ADDICT.  I AGREE WITH MY
BROTHER CLARK THAT THERE WAS NO EVIDENCE AT ALL THAT APPELLANT HAD LOST
THE POWER TO CONTROL HIS ACTS.  THERE WAS NO EVIDENCE OF ANY USE WITHIN
3 DAYS PRIOR TO APPELLANT'S ARREST.  THE MOST RECENT MARKS MIGHT HAVE
BEEN 3 DAYS OLD OR THEY MIGHT HAVE BEEN 10 DAYS OLD.  THE APPELLANT
ADMITTED BEFORE TRIAL THAT HE HAD LAST USED NARCOTICS 8 DAYS BEFORE HIS
ARREST.  AT THE TRIAL HE DENIED HAVING TAKEN NARCOTICS AT ALL.  THE
UNCONTROVERTED EVIDENCE WAS THAT APPELLANT WAS NOT UNDER THE INFLUENCE
OF NARCOTICS AT THE TIME OF HIS ARREST NOR DID HE HAVE WITHDRAWAL
SYMPTOMS.  HE WAS AN INCIPIENT ADDICT, A REDEEMABLE USER, AND THE STATE
CHOSE TO SEND HIM TO JAIL FOR 90 DAYS RATHER THAN TO ATTEMPT TO CONFINE
HIM BY CIVIL PROCEEDINGS UNDER ANOTHER STATUTE WHICH REQUIRES A FINDING
THAT THE ADDICT HAS LOST THE POWER OF SELF-CONTROL.  IN MY OPINION, ON
THIS RECORD, IT WAS WITHIN THE POWER OF THE STATE OF CALIFORNIA TO
CONFINE HIM BY CRIMINAL PROCEEDINGS FOR THE USE OF NARCOTICS OR FOR
REGULAR USE AMOUNTING TO HABITUAL USE.  (FN5) 

THE COURT CLEARLY DOES NOT REST ITS DECISION UPON THE NARROW GROUND
THAT THE JURY WAS NOT EXPRESSLY INSTRUCTED NOT TO CONVICT IF IT
BELIEVED APPELLANT'S USE OF NARCOTICS WAS BEYOND HIS CONTROL.  THE
COURT RECOGNIZED NO DEGREES OF ADDICTION.  THE FOURTEENTH AMENDMENT IS
TODAY HELD TO BAR ANY PROSECUTION FOR ADDICTION REGARDLESS OF THE
DEGREE OR FREQUENCY OF USE, AND THE COURT'S OPINION BRISTLES WITH
INDICATIONS OF FURTHER CONSEQUENCES.  IF IT IS "CRUEL AND UNUSUAL
PUNISHMENT" TO CONVICT APPELLANT FOR ADDICTION, IT IS DIFFICULT TO
UNDERSTAND WHY IT WOULD BE ANY LESS OFFENSIVE TO THE FOURTEENTH
AMENDMENT TO CONVICT HIM FOR USE ON THE SAME EVIDENCE OF USE WHICH
PROVED HE WAS AN ADDICT.  IT IS SIGNIFICANT THAT IN PURPORTING TO
REAFFIRM THE POWER OF THE STATES TO DEAL WITH THE NARCOTICS TRAFFIC,
THE COURT DOES NOT INCLUDE AMONG THE OBVIOUS POWERS OF THE STATE THE
POWER TO PUNISH FOR THE USE OF NARCOTICS.  I CANNOT THINK THAT THE
OMISSION WAS INADVERTENT. 

THE COURT HAS NOT MERELY TIDIED UP CALIFORNIA'S LAW BY REMOVING SOME
IRRITATING VESTIGE OF AN OUTMODED APPROACH TO THE CONTROL OF
NARCOTICS.  AT THE VERY LEAST, IT HAS EFFECTIVELY REMOVED CALIFORNIA'S
POWER TO DEAL EFFECTIVELY WITH THE RECURRING CASE UNDER THE STATUTE
WHERE THERE IS AMPLE EVIDENCE OF USE BUT NO EVIDENCE OF THE PRECISE
LOCATION OF USE.  BEYOND THIS IT HAS CAST SERIOUS DOUBT UPON THE POWER
OF ANY STATE TO FORBID THE USE OF NARCOTICS UNDER THREAT OF CRIMINAL
PUNISHMENT.  I CANNOT BELIEVE THAT THE COURT WOULD FORBID THE
APPLICATION OF THE CRIMINAL LAWS TO THE USE OF NARCOTICS UNDER ANY
CIRCUMSTANCES.  BUT THE STATES, AS WELL AS THE FEDERAL GOVERNMENT, ARE
NOW ON NOTICE.  THEY WILL HAVE TO AWAIT A FINAL ANSWER IN ANOTHER
CASE. 

FINALLY, I DEEM THIS APPLICATION OF "CRUEL AND UNUSUAL PUNISHMENT" SO
NOVEL THAT I SUSPECT THE COURT WAS HARD PUT TO FIND A WAY TO ASCRIBE TO
THE FRAMERS OF THE CONSTITUTION THE RESULT REACHED TODAY RATHER THAN TO
ITS OWN NOTIONS OF ORDERED LIBERTY.  IF THIS CASE INVOLVED ECONOMIC
REGULATION, THE PRESENT COURT'S ALLERGY TO SUBSTANTIVE DUE PROCESS
WOULD SURELY SAVE THE STATUTE AND PREVENT THE COURT FROM IMPOSING ITS
OWN PHILOSOPHICAL PREDILECTIONS UPON STATE LEGISLATURES OR CONGRESS.  I
FAIL TO SEE WHY THE COURT DEEMS IT MORE APPROPRIATE TO WRITE INTO THE
CONSTITUTION ITS OWN ABSTRACT NOTIONS OF HOW BEST TO HANDLE THE
NARCOTICS PROBLEM, FOR IT OBVIOUSLY CANNOT MATCH EITHER THE STATES OR
CONGRESS IN EXPERT UNDERSTANDING. 

I RESPECTFULLY DISSENT. 

FN1  IT HAS REPEATEDLY BEEN HELD IN THIS COURT THAT ITS PRACTICE WILL
NOT BE "TO DECIDE ANY CONSTITUTIONAL QUESTION IN ADVANCE OF THE
NECESSITY FOR ITS DECISION  ...  OR  ...  EXCEPT WITH REFERENCE TO THE
PARTICULAR FACTS TO WHICH IT IS TO BE APPLIED," ALABAMA STATE
FEDERATION V. MCADORY, 325 U.S. 450, 461, AND THAT STATE STATUTES WILL
ALWAYS BE CONSTRUED, IF POSSIBLE, TO SAVE THEIR CONSTITUTIONALITY
DESPITE THE PLAUSIBILITY OF DIFFERENT BUT UNCONSTITUTIONAL
INTERPRETATION OF THE LANGUAGE.  THUS, THE COURT RECENTLY REAFFIRMED
THE PRINCIPLE IN OIL WORKERS UNIONS V. MISSOURI, 361 U.S. 363, 370:
"WHEN THAT CLAIM IS LITIGATED IT WILL BE SUBJECT TO REVIEW, BUT IT IS
NOT FOR US NOW TO ANTICIPATE ITS OUTCOME.  '"CONSTITUTIONAL QUESTIONS
ARE NOT TO BE DEALT WITH ABSTRACTLY" ...  .  THEY WILL NOT BE
ANTICIPATED BUT WILL BE DEALT WITH ONLY AS THEY ARE APPROPRIATELY
RAISED UPON A RECORD BEFORE US  ...  .  NOR WILL WE ASSUME IN ADVANCE
THAT A STATE WILL SO CONSTRUE ITS LAW AS TO BRING IT INTO CONFLICT WITH
THE FEDERAL CONSTITUTION OR AN ACT OF CONGRESS.'  ALLEN-BRADLEY LOCAL
V. WISCONSIN BOARD, 315 U.S. 740, AT 746."    FN2  THE COURT INSTRUCTED
THE JURY THAT, "THE WORD 'ADDICTED' MEANS, STRONGLY DISPOSED TO SOME
TASTE OR PRACTICE OR HABITUATED, ESPECIALLY TO DRUGS.  IN ORDER TO
INQUIRE AS TO WHETHER A PERSON IS ADDICTED TO THE USE OF NARCOTICS IS
IN EFFECT AN INQUIRY AS TO HIS HABIT IN THAT REGARD  ...  .  TO USE
THEM OFTEN OR DAILY IS, ACCORDING TO THE ORDINARY ACCEPTANCE OF THOSE
WORDS, TO USE THEM HABITUALLY." 

FN3  THIS IS NOT A CASE WHERE A DEFENDANT IS CONVICTED "EVEN THOUGH
HE HAS NEVER TOUCHED ANY NARCOTIC DRUG WITHIN THE STATE OR BEEN GUILTY
OF ANY IRREGULAR BEHAVIOR THERE."  THE EVIDENCE WAS THAT APPELLANT
LIVED AND WORKED IN LOS ANGELES.  HE ADMITTED BEFORE TRIAL THAT HE HAD
USED NARCOTICS FOR THREE OR FOUR MONTHS, THREE OR FOUR TIMES A WEEK,
USUALLY AT HIS PLACE WITH HIS FRIENDS.  HE STATED TO THE POLICE THAT HE
HAD LAST USED NARCOTICS AT 54TH AND CENTRAL IN THE CITY OF LOS ANGELES
ON JANUARY 27, 8 DAYS BEFORE HIS ARREST.  ACCORDING TO THE STATE'S
EXPERT, NO NEEDLE MARK OR SCAB FOUND ON APPELLANT'S ARMS WAS NEWER THAN
3 DAYS OLD AND THE MOST RECENT MARK MIGHT HAVE BEEN AS OLD AT 10 DAYS,
WHICH WAS CONSISTENT WITH APPELLANT'S OWN PRETRIAL ADMISSIONS.  THE
STATE'S EVIDENCE WAS THAT APPELLANT HAD USED NARCOTICS AT LEAST 7 TIMES
IN THE 15 DAYS IMMEDIATELY PRECEDING HIS ARREST. 

FN4  THE TYPICAL CASE UNDER THE NARCOTICS STATUTE, AS THE STATE MADE
CLEAR IN ITS BRIEF AND ARGUMENT, IS THE ONE WHERE THE DEFENDANT MAKES
NO ADMISSIONS, AS HE DID IN THIS CASE, AND THE ONLY EVIDENCE OF USE OR
ADDICTION IS PRESENTED BY AN EXPERT WHO, ON THE BASIS OF NEEDLE MARKS
AND SCABS OR OTHER PHYSICAL EVIDENCE REVEALED BY THE BODY OF THE
DEFENDANT, TESTIFIES THAT THE DEFENDANT HAS REGULARLY TAKEN NARCOTICS
IN THE RECENT PAST.  SEE, E.G., PEOPLE V. WILLIAMS, 164 CAL. APP. 2D
858, 331 P.2D 251; PEOPLE V. GARCIA, 122 CAL. APP. 2D 962, 266 P.2D
233; PEOPLE V. ACKLES, 147 CAL. APP. 2D 40, 304 P.2D 1032.  UNDER THE
LOCAL VENUE REQUIREMENTS, A CONVICTION FOR SIMPLE USE OF NARCOTICS MAY
BE HAD ONLY IN THE COUNTY WHERE THE USE TOOK PLACE, PEOPLE V. GARCIA,
SUPRA, AND IN THE USUAL CASE EVIDENCE OF THE PRECISE LOCATION OF THE
USE IS LACKING.  WHERE THE CHARGE IS ADDICTION, VENUE UNDER SEC. 11721
OF THE HEALTH AND SAFETY CODE MAY BE LAID IN ANY COUNTY WHERE THE
DEFENDANT IS FOUND.  PEOPLE V. ACKLES, SUPRA, 147 CAL. APP. 2D, AT 42
43, 304 P.2D, AT 1033, DISTINGUISHING PEOPLE V. THOMPSON, 144 CAL. APP.
2D 854, 301 P.2D 313.  UNDER CALIFORNIA LAW A DEFENDANT HAS NO
CONSTITUTIONAL RIGHT TO BE TRIED IN ANY PARTICULAR COUNTY, BUT UNDER
STATUTORY LAW, WITH CERTAIN EXCEPTIONS, "AN ACCUSED PERSON IS
ANSWERABLE ONLY IN THE JURISDICTION WHERE THE CRIME, OR SOME PART OR
EFFECT THEREOF, WAS COMMITTED OR OCCURRED."  PEOPLE V. MEGLADDERY, 40
CAL. APP. 2D 748, 762, 106 P.2D 84, 92.  A CHARGE OF NARCOTICS
ADDICTION IS ONE OF THE EXCEPTIONS AND THERE ARE OTHERS.  SEE, E.G.,
SECS. 781, 784, 785, 786, 788, CAL. PENAL CODE.  VENUE IS TO BE
DETERMINED FROM THE EVIDENCE AND IS FOR THE JURY, BUT IT NEED NOT BE
PROVED BEYOND A REASONABLE DOUBT.  PEOPLE V. MEGLADDERY, SUPRA, 40 CAL.
APP. 2D, AT 764, 106 P.2D, AT 93.  SEE PEOPLE V. BASTIO, 55 CAL. APP.
2D 615, 131 P.2D 614; PEOPLE V. GARCIA, SUPRA.  IN REVIEWING
CONVICTIONS IN NARCOTICS CASES, APPELLATE COURTS VIEW THE EVIDENCE OF
VENUE "IN THE LIGHT MOST FAVORABLE TO THE JUDGMENT."  PEOPLE V. GARCIA,
SUPRA. 

FN5  HEALTH AND SAFETY CODE SEC. 11391 EXPRESSLY PERMITS AND
CONTEMPLATES THE MEDICAL TREATMENT OF NARCOTICS ADDICTS CONFINED TO
JAIL. 
..END :















CONTINENTAL ORE CO. V. UNION CARBIDE & CARBON CORP. 370 U.S. 690 


NO. 304.  ARGUED APRIL 16-17, 1962 - DECIDED JUNE 25, 1962 - 289 F.2D
86, JUDGMENT VACATED AND CASE REMANDED FOR NEW TRIAL. 


PETITIONERS SUED RESPONDENTS UNDER SEC. 4 OF THE CLAYTON ACT TO
RECOVER TREBLE DAMAGES, ALLEGING THAT RESPONDENTS HAD VIOLATED SECS. 1
AND 2 OF THE SHERMAN ACT BY CONSPIRING TO RESTRAIN, BY MONOPOLIZING,
AND BY ATTEMPTING AND CONSPIRING TO MONOPOLIZE, TRADE AND COMMERCE IN
FERROVANADIUM AND VANADIUM OXIDE.  THE JURY BROUGHT IN A VERDICT FOR
RESPONDENTS, AND PETITIONERS APPEALED, CONTENDING THAT THE DISTRICT
COURT ERRED IN EXCLUDING VARIOUS ITEMS OF EVIDENCE, IN GIVING CERTAIN
INSTRUCTIONS TO THE JURY, IN REFUSING TO GIVE OTHER INSTRUCTIONS AND IN
OTHER RULINGS.  THE COURT OF APPEALS HELD THAT THERE WAS INSUFFICIENT
EVIDENCE TO JUSTIFY A JURY'S FINDING THAT RESPONDENTS' ILLEGAL ACTS
WERE THE CAUSE OF PETITIONERS' FAILURE IN THE VANADIUM BUSINESS THAT,
THEREFORE, A VERDICT SHOULD HAVE BEEN DIRECTED FOR RESPONDENTS.  HELD:
THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR A NEW TRIAL.  PP.
691-710. 

1.  IN CONCLUDING THAT THERE SHOULD HAVE BEEN A DIRECTED VERDICT FOR
RESPONDENTS, THE COURT OF APPEALS ERRED IN FAILING TO VIEW THE EVIDENCE
IN THE LIGHT MOST FAVORABLE TO PETITIONERS AND TO GIVE PETITIONERS THE
BENEFIT OF ALL INFERENCES WHICH THE EVIDENCE FAIRLY SUPPORTED; AND IT
ERRED IN HOLDING THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A
FINDING THAT RESPONDENTS' CONDUCT IN FACT CAUSED INJURY TO PETITIONERS'
BUSINESS.  IT WAS THE JURY'S FUNCTION TO WEIGH THE EVIDENCE AND THE
INFERENCES TO BE DRAWN THEREFROM AND TO COME TO AN ULTIMATE CONCLUSION
AS TO THE FACTS.  PP. 696-702. 

2.  THE DISTRICT COURT ERRED IN REJECTING PETITIONERS' OFFER TO PROVE
THAT THEY HAD BEEN EXCLUDED FROM THE CANADIAN MARKET BY A WHOLLY OWNED
SUBSIDIARY OF ONE OF THE RESPONDENTS, WHICH WAS ACTING AS THE EXCLUSIVE
PURCHASING AGENT FOR THE WARTIME OFFICE OF METALS CONTROLLER OF THE
CANADIAN GOVERNMENT, BUT WHICH ALLEGEDLY OPERATED IN THIS CONNECTION
UNDER THE CONTROL AND DIRECTION OF ITS PARENT CORPORATION FOR THE
PURPOSE OF CARRYING OUT THE OVERALL CONSPIRACY TO RESTRAIN AND
MONOPOLIZE THE VANADIUM INDUSTRY IN THE UNITED STATES.  THIS OFFER OF
PROOF WAS RELEVANT EVIDENCE OF A VIOLATION OF THE SHERMAN ACT CHARGED
IN THE COMPLAINT, AND IT WAS NOT INADMISSIBLE ON THE GROUND THAT THE
SUBSIDIARY CORPORATION WAS ACTING AS AN ARM OF THE CANADIAN
GOVERNMENT.  PP. 702-708. 

3.  THE DISTRICT COURT COMMITTED SEVERAL TRIAL ERRORS WHICH SHOULD
NOT BE REPEATED IN A NEW TRIAL.   PP. 708-710. 

(A)  THE DISTRICT COURT ERRED IN CHARGING THE JURY THAT, IN THE
CONTEXT OF THE FACTS ALLEGED IN THIS CASE, A CONSPIRACY MUST BE PROVED
"WHICH WAS REASONABLY CALCULATED TO PREJUDICE THE PUBLIC INTEREST BY
UNDULY" RESTRAINING TRADE AND WHICH WAS INTENDED "TO INJURE THE GENERAL
PUBLIC BY" RESTRAINING TRADE.  P. 708. 

(B)  THE DISTRICT COURT MISINTERPRETED THE LAW IN DEFINING
"MONOPOLIZATION" AND "ATTEMPTED MONOPOLIZATION" IN TERMS OF "CONSPIRACY
TO MONOPOLIZE," AND THIS ERROR WAS PREJUDICIAL RATHER THAN HARMLESS. 
PP. 708-709. 

(C)  THE DISTRICT COURT ERRED IN ITS PERSISTENT EXCLUSION OF EVIDENCE
RELATING TO THE PERIOD BEFORE PETITIONERS' ENTRANCE INTO THE INDUSTRY,
SINCE THIS EVIDENCE WAS CLEARLY MATERIAL TO PETITIONERS' CHARGE THAT
THERE WAS A CONSPIRACY AND MONOPOLIZATION IN EXISTENCE WHEN THEY CAME
INTO THE INDUSTRY AND THAT THEY WERE ELIMINATED IN FURTHERANCE
THEREOF.  PP. 709-710. 

CONTINENTAL ORE CO. ET AL. V. UNION CARBIDE & CARBON CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THIS IS A PRIVATE TREBLE DAMAGE ACTION UNDER THE ANTITRUST LAWS. 
(FN1)  CONTINENTAL ORE COMPANY, A PARTNERSHIP, AND ITS INDIVIDUAL
PARTNERS, WHO WERE PLAINTIFFS IN THE TRIAL COURT, ARE PETITIONERS
HERE.  (FN2)  HENRY J. LEIR, THE PRINCIPAL PARTY IN CONTINENTAL, HAD
ENGAGED IN THE BUYING AND SELLING OF METALS, INCLUDING VANADIUM
PRODUCTS, IN EUROPE PRIOR TO 1938, IN WHICH YEAR HE IMMIGRATED TO THE
UNITED STATES.  THIS CASE CONCERNS HIS SUBSEQUENT EFFORTS IN THIS
COUNTRY TO BUILD A SUCCESSFUL BUSINESS IN THE PRODUCTION AND SALE OF
VANADIUM. 

VANADIUM IS A METAL OBTAINED FROM CERTAIN ORES WHICH, IN THIS
COUNTRY, ARE MINED PRINCIPALLY ON THE COLORADO PLATEAU.  THE ORE IS
PROCESSED AT MILLS NEAR THE MINES INTO A SUBSTANCE COMMONLY KNOWN AS
VANADIUM OXIDE.  THE OXIDE IS THEN TRANSPORTED TO THE EAST AND
CONVERTED INTO FERROVANADIUM, (FN3) WHICH IS PURCHASED CHIEFLY BY STEEL
COMPANIES FOR USE AS AN ALLOY IN HARDENING STEELS. 

THE DEFENDANTS NAMED IN THE COMPLAINT WERE VANADIUM CORPORATION OF
AMERICA (VCA), A FULLY INTEGRATED MINER AND MANUFACTURER OF VANADIUM
PRODUCTS, UNION CARBIDE AND CARBON CORPORATION (CARBIDE), AND THE
FOLLOWING FOUR WHOLLY OWNED SUBSIDIARY CORPORATIONS OF THE LATTER
COMPANY: UNITED STATES VANADIUM CORPORATION (USV), ENGAGED IN MINING
VANADIUM ORE AND PROCESSING VANADIUM OXIDE; ELECTRO METALLURGICAL
COMPANY (ELECTRO MET), ENGAGED IN MAKING FERROVANADIUM; ELECTRO
METALLURGICAL SALES CORPORATION (ELECTRO MET SALES), ENGAGED IN THE
SALE OF VANADIUM OXIDE AND FERROVANADIUM; AND ELECTRO METALLURGICAL
COMPANY OF CANADA, LTD, (ELECTRO MET OF CANADA), ENGAGED IN SELLING
VANADIUM PRODUCTS IN CANADA.  THE COMPLAING WAS FILED ON NOVEMBER 15,
1949, AND SERVICE WAS HAD ON VCA, CARBIDE AND USV.  THERE WAS NO
SERVICE ON ELECTRO MET, ELECTRO MET SALES OR ELECTRO MET OF CANADA. 
CARBIDE ACQUIRED THE ASSETS OF ELECTRO MET AND ELECTRO MET SALES BY
DISSOLUTION OR MERGER DURING THE YEAR 1949, PRIOR TO THE FILING OF THE
COMPLAINT HEREIN. 

THE COMPLAINT ALLEGED THAT, BEGINNING IN ABOUT 1933, THE DEFENDANTS
AND OTHERS ACTING IN CONCERT WITH THEM VIOLATED SECS. 1 AND 2 OF THE
SHERMAN ACT (FN4) BY CONSPIRING TO RESTRAIN, BY MONOPOLIZING, AND BY
ATTEMPTING AND CONSPIRING TO MONOPOLIZE, TRADE AND COMMERCE IN
FERROVANADIUM AND VANADIUM OXIDE.  THE DEFENDANTS WERE CHARGED WITH
PURCHASING AND ACQUIRING CONTROL OVER SUBSTANTIALLY ALL ACCESSIBLE
VANADIUM-BEARING ORE DEPOSITS IN THE UNITED STATES AND SUBSTANTIALLY
ALL VANADIUM OXIDE PRODUCED BY OTHERS IN THE UNITED STATES, WITH
REFUSING TO SELL VANADIUM OXIDE TO OTHER POTENTIAL PRODUCERS OF
FERROVANADIUM, INCLUDING CONTINENTAL AND ITS ASSOCIATES, WITH
APPORTIONING AND DIVIDING THEMSELVES IN CERTAIN PROPORTIONS, WITH
FIXING IDENTICAL PRICES FOR THE SALE OF FERROVANADIUM AND VANADIUM
OXIDE AND FOR THE PURCHASE OF ORE, AND WITH MAKING CERTAIN MUTUAL
ARRANGEMENTS WHEREBY ONE OR MORE CARBIDE SUBSIDIARIES SUPPLIED VCA WITH
SUBSTANTIAL QUANTITIES OF VANADIUM OXIDE AT PREFERENTIAL PRICES TO
VCA.  THE COMPLAINT STATED THAT BETWEEN 1933 AND 1949 THE DEFENDANTS
PRODUCED OVER 99 PERCENT OF ALL FERROVANADIUM AND OVER 90 PERCENT OF
ALL VANADIUM OXIDE PRODUCED IN THE UNITED STATES AND THAT DURING THE
SAME PERIOD THE DEFENDANTS SOLD OVER 99 PERCENT OF THE FERROVANADIUM
AND VANADIUM OXIDE SOLD IN THIS COUNTRY.  (FN5) 

ACCORDING TO THE COMPLAINT, AS A PROXIMATE CONSEQUENCE OF DEFENDANTS'
MONOPOLISTIC AND RESTRICTIVE PRACTICES, INDEPENDENT PRODUCERS AND
DISTRIBUTORS OF FERROVANADIUM AND VANADIUM OXIDE, INCLUDING
CONTINENTAL, WERE ELIMINATED FROM THE BUSINESS.  SPECIFICALLY, THE
COMPLAINT DETAILED SEVERAL EFFORTS WHICH CONTINENTAL MADE TO ENTER AND
MAINTAIN ITSELF IN THE VANADIUM BUSINESS, ALL OF WHICH WERE ALLEGEDLY
FRUSTRATED BY DEFENDANTS' SHERMAN ACT VIOLATIONS:  (1) IN 1938,
CONTINENTAL NEGOTIATED A CONTRACT WITH APEX SMELTING COMPANY OF CHICAGO
WHEREBY APEX WAS TO BUILD AND OPERATE A PLANT FOR THE CONVERSION OF
OXIDE TO FERROVANADIUM BY USE OF THE ALUMINOTHERMIC PROCESS. 
CONTINENTAL AND APEX WERE TO SHARE THE PROFITS OF THIS VENTURE.  ON ITS
PART, CONTINENTAL AGREED TO OBTAIN RAW MATERIALS FOR APEX AND TO SELL
THE FINISHED PRODUCT.  OPERATIONS UNDER THIS CONTRACT BEGAN IN THE
SPRING OF 1940, BUT APEX TERMINATED THE AGREEMENT IN 1942 ALLEGEDLY
BECAUSE THE ILLEGAL ACTIVITIES OF DEFENDANTS PREVENTED THE OBTAINING OF
A SUFFICIENT SUPPLY OF VANADIUM OXIDE.  (2) MEANWHILE, CONTINENTAL
ITSELF HAD BEGUN TO PRODUCE A COMPOUND CALLED "VAN-EX," COMPOSED OF
VANADIUM OXIDE AND OTHER MATERIALS, WHICH WAS DESIGNED FOR DIRECT
INTRODUCTION INTO THE STEEL-MAKING PROCESS WITHOUT PRIOR CONVERSION TO
FERROVANADIUM.  THIS VENTURE WAS ALLEGEDLY TERMINATED IN 1944 BECAUSE
OF THE DIFFICULTY OF SECURING RAW MATERIALS CAUSED BY DEFENDANTS'
UNLAWFUL PRACTICES, INCLUDING THE EFFORTS OF DEFENDANTS TO OBTAIN
OWNERSHIP OR CONTROL OF THE MINES AND MILLS OF CONTINENTAL'S
SUPPLIERS.  (3) CONTINENTAL HAD DEVELOPED A BUSINESS WITH A CANADIAN
CUSTOMER DURING 1942.  WHEN ELECTRO MET SALES OF CANADA WAS APPOINTED
BY THE CANADIAN GOVERNMENT AS THE EXCLUSIVE WARTIME AGENT TO PURCHASE
AND ALLOCATE VANADIUM FOR CANADIAN INDUSTRIES, THAT COMPANY, IT IS
ALLEGED, ACTING UNDER THE CONTROL AND DIRECTION OF ITS PARENT, CARBIDE,
ELIMINATED CONTINENTAL ENTIRELY FROM THE CANADIAN MARKET AND DIVIDED
CONTINENTAL'S BUSINESS SOLELY BETWEEN DEFENDANTS.  (4) DEFENDANTS IN
1943, BY OPEN THREATS OF REPRISALS, ALLEGEDLY FRUSTRATED CERTAIN
ARRANGEMENTS WHICH CONTINENTAL HAD WITH THE CLIMAX MOLYBDENUM
CORPORATION FOR THE MANUFACTURE OF FERROVANADIUM.  (5) IN JANUARY 1944,
CONTINENTAL CONTRACTED WITH IMPERIAL PAPER & COLOR CORPORATION FOR THE
PROCESSING BY THE LATTER OF VANADIUM OXIDE AND FERROVANADIUM. 
CONTINENTAL AGREED TO ACT AS SALES AGENT FOR THE OUTPUT.  THE COMPLAINT
CHARGED THAT IMPERIAL ABANDONED THE CONTRACT AT THE END OF 1944 BECAUSE
OF THE INABILITY TO SECURE RAW MATERIALS AND THAT CONTINENTAL THEN LEFT
THE VANADIUM BUSINESS ALTOGETHER, ALL AS A RESULT OF THE RESTRICTIVE
AND MONOPOLISTIC PRACTICES OF THE DEFENDANTS. 

TRIAL WAS TO A JURY AND A VERDICT WAS RETURNED FOR DEFENDANTS. 
CONTINENTAL APPEALED, ASSERTING ERROR IN THE TRIAL COURT'S EXCLUSION OF
VARIOUS EVIDENTIARY ITEMS, IN CERTAIN OF THE INSTRUCTIONS GIVEN TO THE
JURY, IN THE REFUSAL TO GIVE OTHER INSTRUCTIONS, AND IN OTHER RULINGS
OF THE TRIAL COURT.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT
ANNOUNCED THAT ITS TASK WAS TO REVIEW THE CORRECTNESS OF THE JUDGMENT
BELOW, NOT THE REASONS THEREFOR, AND ON THAT BASIS AFFIRMED THE
JUDGMENT, 289 F.2D 86, HOLDING THAT THERE WAS INSUFFICIENT EVIDENCE TO
JUSTIFY A JURY FINDING THAT DEFENDANTS' ILLEGAL ACTS WERE IN FACT THE
CAUSE OF CONTINENTAL'S FAILURE IN THE VANADIUM BUSINESS, AND HENCE,
THAT A VERDICT FOR DEFENDANTS SHOULD HAVE BEEN DIRECTED.  IN REACHING
ITS DECISION, THE COURT STATED THAT IT HAD CONSIDERED NOT ONLY ALL THE
EVIDENCE ADMITTED BY THE TRIAL JUDGE, BUT ALSO ALL THE EVIDENCE OFFERED
BY THE PLAINTIFFS WHICH THE TRIAL JUDGE EXCLUDED.  THE COURT DID NOT
DEAL WITH OR RULE UPON ANY OF THE ALLEGED TRIAL ERRORS RELIED UPON BY
CONTINENTAL, EXCEPT FOR THE ISSUE RELATING TO CONTINENTAL'S ALLEGED
EXCLUSION FROM THE CANADIAN MARKET.  CERTIORARI WAS GRANTED, LIMITED TO
ISSUES WHICH REQUIRED EXAMINATION IN THE LIGHT OF PREVIOUS DECISIONS OF
THIS COURT AND WHICH PRESENTED IMPORTANT QUESTIONS UNDER THE ANTITRUST
LAWS.  368 U.S. 886.  WE HAVE CONCLUDED, FOR THE REASONS DISCUSSED
HEREAFTER, THAT THE COURT OF APPEALS' DECISION MUST BE REVERSED AND THE
CASE REMANDED FOR A NEW TRIAL. 

I. 

THE COURT OF APPEALS WAS, OF COURSE, BOUND TO VIEW THE EVIDENCE IN
THE LIGHT MOST FAVORABLE TO CONTINENTAL, AND TO GIVE IT THE BENEFIT OF
ALL INFERENCES WHICH THE EVIDENCE FAIRLY SUPPORTS, EVEN THOUGH CONTRARY
INFERENCES MIGHT REASONABLY BE DRAWN.  (FN6)  FROM OUR EXAMINATION OF
THE RATHER EXTENSIVE RECORD, WE HAVE CONCLUDED THAT THE COURT OF
APPEALS DEPARTED FROM THIS RULE AND ERRED IN HOLDING THAT THERE WAS
INSUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT RESPONDENTS' CONDUCT IN
FACT CAUSED INJURY TO CONTINENTAL'S BUSINESS. 

CONTINENTAL'S FUNDAMENTAL CLAIM THROUGHOUT WAS THAT INADEQUATE
SUPPLIES OF VANADIUM OXIDE WERE AVAILABLE TO IT AND ITS ASSOCIATES, AND
THAT RESPONDENTS' ALLEGED SHERMAN ACT VIOLATIONS CAUSED OR CONTRIBUTED
TO THIS SHORTAGE.  THE COURT OF APPEALS ACKNOWLEDGED THE PRINCIPLE IN
ANTITRUST CASES THAT "WHERE THE PLAINTIFF PROVES A LOSS, AND A
VIOLATION BY DEFENDANT OF THE ANTITRUST LAWS OF SUCH A NATURE AS TO BE
LIKELY TO CAUSE THAT TYPE OF LOSS, THERE ARE CASES WHICH SAY THAT THE
JURY, AS THE TRIER OF THE FACTS, MUST BE PERMITTED TO DRAW FROM THIS
CIRCUMSTANTIAL EVIDENCE THE INFERENCE THAT THE NECESSARY CAUSAL
RELATION EXISTS."  (FN7)  THE COURT ALSO ASSUMED THAT THE EVIDENCE WAS
ADEQUATE TO SUPPORT A JURY FINDING THAT RESPONDENTS COMMITTED THE
ALLEGED VIOLATIONS OF THE SHERMAN ACT AND THAT THE SPECIFIC ACTS
CHARGED TO HAVE BEEN DONE BY RESPONDENTS WERE PERFORMED AS PART OF THE
BASIC PLAN TO MONOPOLIZE THE VANADIUM MARKET.  NOR DID THE COURT TAKE
EXPRESS ISSUE WITH THE AVERMENTS THAT ADEQUATE SUPPLIES OF VANADIUM
OXIDE WERE UNAVAILABLE TO CONTINENTAL DURING CERTAIN PERIODS OR WITH
THE ARGUMENT THAT A SHORTAGE OF VANADIUM OXIDE WAS THE TYPE OF
CONSEQUENCE THAT WOULD REASONABLY BE EXPECTED TO FLOW FROM A
CONSPIRATORIAL AND MONOPOLISTIC ARRANGEMENT CONTROLLING 99 PERCENT OF
THE FERROVANADIUM AND VANADIUM OXIDE SOLD IN THIS COUNTRY.  THE COURT
NEVERTHELESS CONCLUDED, IN EFFECT, THAT BEFORE THERE COULD BE A
SUFFICIENT SHOWING OF ANY SHORTAGE OF VANADIUM OXIDE, OR AT LEAST
BEFORE THE JURY COULD BE PERMITTED TO INFER THAT ANY SUCH LACK OF
MATERIAL WAS CHARGEABLE TO RESPONDENTS, CONTINENTAL WAS REQUIRED TO
DEMONSTRATE BOTH THAT IT MADE TIMELY DEMANDS FOR OXIDE FROM RESPONDENTS
AND THAT IT EXHAUSTED ALL OTHER POSSIBLE SOURCES OF THAT MATERIAL. 

THE COURT THEN EXAMINED SERIATIM THE APEX, VAN-EX, CLIMAX, CANADIAN
AND IMPERIAL VENTURES AND RULED SEPARATELY UPON THE RESPONDENTS'
ALLEGED DAMAGE TO CONTINENTAL IN CONNECTION WITH EACH OF THESE
EPISODES.  AS TO APEX AND IMPERIAL, IT WAS SAID THAT CONTINENTAL'S
DEMANDS FOR OXIDE FROM RESPONDENTS WERE NOT SUFFICIENTLY
CONTEMPORANEOUS WITH THE FAILURE OF THESE VENTURES TO SUBJECT
RESPONDENTS TO LIABILITY.  AS TO THE VAN-EX PERIOD, RESPONDENTS WERE
BLAMELESS NOT BECAUSE OXIDE HAD NOT BEEN REQUESTED FROM THEM BUT
BECAUSE CONTINENTAL FAILED, IN THE COURT'S VIEW, TO EXHAUST AT LEAST
ONE OTHER AVAILABLE SOURCE.  THE CANADIAN AND CLIMAX ISSUES WERE
DISPOSED OF ON DIFFERENT GROUNDS. 

IT IS APPARENT FROM THE FOREGOING THAT THE COURT OF APPEALS
APPROACHED CONTINENTALS' CLAIMS AS IF THEY WERE FIVE COMPLETELY
SEPARATE AND UNRELATED LAWSUITS.  WE THINK THIS WAS IMPROPER.  IN CASES
SUCH AS THIS, PLAINTIFFS SHOULD BE GIVEN THE FULL BENEFIT OF THEIR
PROOF WITHOUT TIGHTLY COMPARTMENTALIZING THE VARIOUS FACTUAL COMPONENTS
AND WIPING THE SLATE CLEAN AFTER SCRUTINY OF EACH.   "  ...  THE
CHARACTER AND EFFECT OF A CONSPIRACY ARE NOT TO BE JUDGED BY
DISMEMBERING IT AND VIEWING ITS SEPARATE PARTS, BUT ONLY BY LOOKING AT
IT AS A WHOLE.  UNITED STATES V. PATTEN, 226 U.S. 525, 544  ...  ; AND
IN A CASE LIKE THE ONE BEFORE US, THE DUTY OF THE JURY WAS TO LOOK AT
THE WHOLE PICTURE AND NOT MERELY AT THE INDIVIDUAL FIGURES IN IT." 
AMERICAN TOBACCO CO. V. UNITED STATES, 147 F.2D 93, 106 (C.A. 6TH
CIR.).  SEE MONTAGUE & CO. V. LOWRY, 193 U.S. 38, 45-46. 

FURTHERMORE, WE DO NOT BELIEVE THAT RESPONDENTS' LIABILITY UNDER THE
ANTITRUST LAWS CAN BE MEASURED BY ANY RIGID OR MECHANICAL FORMULA
REQUIRING CONTINENTAL BOTH TO DEMAND MATERIALS FROM RESPONDENTS AND TO
EXHAUST ALL OTHER SOURCES OF SUPPLY.  THE COURT OF APPEALS APPEARS TO
HAVE ACCORDED NO WEIGHT TO CONTINENTAL'S EVIDENCE WHICH WAS OFFERED TO
SHOW THAT RESPONDENTS HAD INTERFERED WITH, ACQUIRED, OR DESTROYED THE
SEVERAL SMALL INDEPENDENT SOURCES OF VANADIUM OXIDE RELIED UPON BY
CONTINENTAL.  UNDER THE CRITERIA USED BY THE COURT OF APPEALS,
RESPONDENTS COULD, WITH IMPUNITY, CONCERTEDLY REFUSE TO DEAL WITH
CONTINENTAL WHILE THE LATTER WAS ABLE TO OBTAIN SOME OXIDE FROM
INDEPENDENT SOURCES, THEN PROCEED AT THEIR LEISURE TO DRY UP THOSE
OTHER SOURCES, AND FINALLY INSIST THAT CONTINENTAL MAKE REPEATED
DEMANDS FOR RESPONDENTS' OXIDE BEFORE INCURRING ANTITRUST LIABILITY. 
THE CASES RELIED UPON BY THE COURT OF APPEALS (FN8) CLEARLY DO NOT
SUPPORT ANY SUCH FORMULA AND WE CANNOT DEEM THE INJURY ALLEGED TO FLOW
FROM A MONOPOLIST'S ELIMINATION OF ONE'S INDEPENDENT SUPPLIERS TO BE SO
"REMOTE" AS TO JUSTIFY REFUSING TO LET THE DAMAGES ISSUE GO TO THE
JURY.  (FN9) 

OUR REVIEW OF THE RECORD DISCLOSES SUFFICIENT EVIDENCE FOR A JURY TO
INFER THE NECESSARY CAUSAL CONNECTION BETWEEN RESPONDENTS' ANTITRUST
VIOLATIONS AND PETITIONERS' INJURY.  IN CONCLUDING THAT CONTINENTAL AND
APEX HAD NOT MADE SUFFICIENT EFFORTS TO OBTAIN VANADIUM OXIDE FROM
RESPONDENTS, THE COURT OF APPEALS EITHER OVERLOOKED OR INTERPRETED INTO
INSIGNIFICANCE THE REPEATED APPROACHES MADE TO RESPONDENTS BY
CONTINENTAL AND APEX IN JULY AND OCTOBER OF 1939, IN MARCH AND OCTOBER
OF 1940 AND IN JUNE AND JULY OF 1941.  THE COURT ALSO FAILED TO NOTICE
CERTAIN COMMUNICATIONS FROM APEX IN SEPTEMBER AND DECEMBER 1941, SAYING
THAT IT COULD OPERATE AT ONLY PARTIAL CAPACITY DUE TO THE LACK OF RAW
MATERIALS.  NOR DID THE COURT MENTION THE TESTIMONY OF AN OFFICER OF
APEX TO THE EFFECT THAT APEX'S SUPPLY OF OXIDE WAS IRREGULAR AND
INTERMITTENT AND THAT THE UNAVAILABILITY OF OXIDE WAS ONE OF THE
REASONS THAT APEX DID NOT OPERATE AT FULL CAPACITY.  ACCORDING TO THE
COURT OF APPEALS, THE "CRITICAL PERIOD" DURING WHICH CONTINENTAL AND
APEX SHOULD HAVE DEMANDED MATERIALS FROM THE RESPONDENTS WAS THE YEAR
PRECEDING THE TERMINATION OF THE APEX CONTRACT, WHICH THE COURT PLACED
IN JUNE 1942.  BUT IT IS QUITE PLAIN FROM THE RECORD THAT APEX NOTIFIED
CONTINENTAL OF ITS DETERMINATION TO TERMINATE THE CONTRACT IN JANUARY
AND FEBRUARY OF 1942, WHICH FOLLOWED MUCH MORE CLOSELY THE PREVIOUS
REFUSALS OF RESPONDENTS TO DEAL WITH CONTINENTAL AND APEX. 

UNDOUBTEDLY, ALL OF THE EVIDENCE DURING THIS PERIOD DOES NOT POINT IN
ONE DIRECTION AND DIFFERENT INFERENCES MIGHT REASONABLY BE DRAWN FROM
IT. THERE WAS, HOWEVER, SUFFICIENT EVIDENCE TO GO TO THE JURY AND IT IS
THE JURY WHICH "WEIGHS THE CONTRADICTORY EVIDENCE AND INFERENCES" AND
DRAWS "THE ULTIMATE CONCLUSION AS TO THE FACTS."  TENNANT V. PEORIA &
P.U.R. CO., 321 U.S. 29, 35. 

DURING THE SO-CALLED VAN-EX PERIOD, THE COURT DID NOT EXCULPATE
RESPONDENTS BECAUSE OF PETITIONERS' FAILURE TO REQUEST OXIDE FROM THEM
BUT BECAUSE PETITIONERS SUPPOSEDLY FAILED TO TAKE ADVANTAGE OF AN
INDEPENDENT SOURCE OF SUPPLIES.  BUT THE EVIDENCE RELIED UPON BY THE
COURT CAN JUST AS REASONABLY BE READ IN A MANNER FAVORABLE TO
CONTINENTAL AND IT APPEARS THAT THE COURT MAY HAVE MISAPPREHENDED
SIGNIFICANT PARTS OF THIS RECORD.  (FN10)  IN ANY EVENT, THE
INTERPRETATION AND SIGNIFICANCE OF THIS EVIDENCE WERE FOR THE JURY. 

THE COURT OF APPEALS ALSO CONCLUDED THAT THE RESPONDENTS DID NOT
CONTRIBUTE TO THE FAILURE OF IMPERIAL TO PRODUCE FERROVANADIUM UNDER
ITS CONTRACT WITH CONTINENTAL.  THE COURT ACKNOWLEDGED, AND THERE
APPEARS TO BE SUBSTANTIAL EVIDENCE TO THIS EFFECT, THAT IMPERIAL'S
DECISION WAS BASED UPON ITS CONCERN ABOUT A STEADY AND RELIABLE SOURCE
OF RAW MATERIALS.  CONTINENTAL HAD REQUESTED VCA AND USV TO PROVIDE
SIZABLE MONTHLY SUPPLIES OF OXIDE IN NOVEMBER OF 1943, BUT THE COURT OF
APPEALS BRACKETED THIS EVIDENCE WITH THE VAN-EX PERIOD EVEN THOUGH THE
TESTIMONY CLEARLY WAS THAT THE SUPPLIES THEN SOUGHT WERE FOR THE
IMPERIAL ARRANGEMENT WHICH WAS THEN BEING NEGOTIATED.  IMPERIAL, AFTER
SIGNING THE CONTRACT, CAREFULLY SURVEYED FOREIGN SOURCES OF VANADIUM,
CONCLUDED THEY WERE INADEQUATE AND DETERMINED NOT TO GO INTO PRODUCTION
BECAUSE A RELIABLE, LONG-RANGE SOURCE OF OXIDE WAS NOT AVAILABLE.  IN
SPITE OF THE REFUSAL OF RESPONDENTS TO DEAL WITH CONTINENTAL IN
NOVEMBER 1943 AND IN PREVIOUS MONTHS AND YEARS, AND IN SPITE OF THE
ASSUMED MONOPOLISTIC CONTROL OF ALMOST ALL OF THE VANADIUM OXIDE IN THE
UNITED STATES, THE COURT RULED THAT CONTINENTAL MUST HAVE REQUESTED
OXIDE FROM RESPONDENTS AFTER THE CONTRACT WITH IMPERIAL WAS SIGNED IN
JANUARY OF 1944.  WE THINK THE JURY SHOULD BE ALLOWED TO DETERMINE
WHETHER RESPONDENTS' CONDUCT MATERIALLY CONTRIBUTED TO THE FAILURE OF
THE IMPERIAL VENTURE, TO CONTINENTAL'S DAMAGE. 

                                 II. 

CONTINENTAL'S ALLEGED ELIMINATION FROM THE CANADIAN MARKET RAISES
DIFFERENT ISSUES.  AT THE TRIAL CONTINENTAL INTRODUCED EVIDENCE TO SHOW
THAT BEGINNING IN MARCH 1942, IT HAD SHIPPED VAN-EX TO A CANADIAN
CUSTOMER EACH MONTH DURING THE REMAINDER OF THAT YEAR.  THERE WAS THEN
RECEIVED IN EVIDENCE A LETTER DATED JANUARY 19, 1943, FROM CONTINENTAL
TO ELECTRO MET IN NEW YORK CITY RECITING THAT THE NEW ALLOCATION SYSTEM
IN CANADA (FN11) HAD ELIMINATED CONTINENTAL FROM THE CANADIAN MARKET IN
JANUARY, THAT CONTINENTAL HAD INQUIRED ABOUT THE MATTER FROM THE METALS
CONTROLLER FOR THE CANADIAN GOVERNMENT AND THAT THE LATTER HAD REFERRED
CONTINENTAL TO ELECTRO MET.  THE COURT THEN STRUCK THIS LETTER FROM THE
RECORD AND REJECTED PETITIONERS' OFFER TO PROVE THAT CONTINENTAL WAS
EXCLUDED FROM THE CANADIAN MARKET BY ELECTRO MET OF CANADA, A WHOLLY
OWNED SUBSIDIARY CORPORATION OF CARBIDE, ACTING AS EXCLUSIVE PURCHASING
AGENT FOR THE METALS CONTROLLER BUT ALLEGEDLY OPERATING IN THIS
CONNECTION UNDER THE CONTROL AND DIRECTION OF CARBIDE FOR THE PURPOSE
OF CARRYING OUT THE OVERALL CONSPIRACY TO RESTRAIN AND MONOPOLIZE THE
VANADIUM INDUSTRY.  TO THAT END, CONTINENTAL OFFERED TO PROVE THAT ITS
FORMER SHARE OF THE CANADIAN MARKET WAS DIVIDED BETWEEN CARBIDE AND
VCA.  CONTINENTAL OFFERED VARIOUS CORRESPONDENCE WITH ELECTRO MET OF
CANADA AND A MEMORANDUM AND PROPOSED TESTIMONY BY CONTINENTAL'S VICE
PRESIDENT CONCERNING HIS CONVERSATIONS WITH AN EMPLOYEE OF ELECTRO MET
WHO HAD COMMUNICATED WITH CONTINENTAL IN RESPONSE TO CONTINENTAL'S
LETTER OF JANUARY 19, 1943, TO ELECTRO MET.  THE COURT DENIED THE
ENTIRE OFFER OF PROOF "FOR THE REASON THAT THIS IS A TRANSACTION WHOLLY
IN THE HANDS OF THE CANADIAN GOVERNMENT AND THAT WHETHER OR NOT THIS
PLAINTIFF WAS PERMITTED TO SELL HIS MATERIAL TO A CUSTOMER IN CANADA
WAS A MATTER WHOLLY WITHIN THE CONTROL OF THE CANADIAN GOVERNMENT." 

THE COURT OF APPEALS AGREED WITH THE TRIAL COURT AND CONCLUDED THAT
CONTINENTAL WAS NOT LEGALLY ENTITLED TO RECOVER FROM RESPONDENTS FOR
THE DESTRUCTION OF ITS CANADIAN BUSINESS.  THE COURT SAID THAT NO
VANADIUM OXIDE COULD BE IMPORTED INTO CANADA BY ANYONE OTHER THAN THE
CANADIAN GOVERNMENT'S AGENT, ELECTRO MET OF CANADA, WHICH REFUSED TO
PURCHASE FROM THE PETITIONERS.  THUS, ACCORDING TO THE COURT, "EVEN IF
WE ASSUME THAT ELECTRO METALLURGICAL COMPANY OF CANADA, LTD., ACTED FOR
THE PURPOSE OF ENTRENCHING THE MONOPOLY POSITION OF THE DEFENDANTS IN
THE UNITED STATES, IT WAS ACTING AS AN ARM OF THE CANADIAN GOVERNMENT,
AND WE DO NOT SEE HOW SUCH EFFORTS AS APPELLANTS CLAIM DEFENDANTS TOOK
TO PERSUADE AND INFLUENCE THE CANADIAN GOVERNMENT THROUGH ITS AGENT ARE
WITHIN THE PURVIEW OF THE SHERMAN ACT."  289 F.2D, AT 94.  THIS RULING
WAS ERRONEOUS AND WE HOLD THAT CONTINENTAL'S OFFER OF PROOF WAS
RELEVANT EVIDENCE OF A VIOLATION OF THE SHERMAN ACT AS CHARGED IN THE
COMPLAINT AND WAS NOT INADMISSIBLE ON THE GROUNDS STATED BY THE COURTS
BELOW. 

RESPONDENTS SAY THAT AMERICAN BANANA CO. V. UNITED FRUIT CO., 213
U.S. 347, SHIELDS THEM FROM LIABILITY.  THIS COURT THERE HELD THAT AN
ANTITRUST PLAINTIFF COULD NOT COLLECT DAMAGES FROM A DEFENDANT WHO HAD
ALLEGEDLY INFLUENCED A FOREIGN GOVERNMENT TO SEIZE PLAINTIFF'S
PROPERTIES.  BUT IN THE LIGHT OF LATER CASES IN THIS COURT RESPONDENTS'
RELIANCE UPON AMERICAN BANANA IS MISPLACED.  A CONSPIRACY TO MONOPOLIZE
OR RESTRAIN THE DOMESTIC OR FOREIGN COMMERCE OF THE UNITED STATES IS
NOT OUTSIDE THE REACH OF THE SHERMAN ACT JUST BECAUSE PART OF THE
CONDUCT COMPLAINED OF OCCURS IN FOREIGN COUNTRIES.  UNITED STATES V.
AMERICAN TOBACCO CO., 221 U.S. 106; UNITED STATES V. PACIFIC & ARTIC R.
& NAVIGATION CO., 228 U.S. 87; THOMSEN V. CAYSER, 243 U.S. 66; UNITED
STATES V. SISAL SALES CORP., 274 U.S. 268.  CF. STEELE V. BULOVA WATCH
CO., 344 U.S. 280; BRANCH V. FEDERAL TRADE COMM'N, 141 F.2D 31 (C.A.
7TH CIR.).  SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416
(C.A.2D CIR.); UNITED STATES V. NATIONAL LEAD CO., 63 F. SUPP. 513
(D.C.S.D.N.Y.), AFF'D, 332 U.S. 319.  (FN12) 

FURTHERMORE, IN THE SISAL CASE, SUPRA, A COMBINATION ENTERED INTO
WITHIN THE UNITED STATES TO MONOPOLIZE AN ARTICLE OF COMMERCE PRODUCED
ABROAD WAS HELD TO VIOLATE THE SHERMAN ACT EVEN THOUGH THE DEFENDANT'S
CONTROL OF THAT PRODUCTION WAS AIDED BY DISCRIMINATORY LEGISLATION OF
THE FOREIGN COUNTRY WHICH ESTABLISHED AN OFFICIAL AGENCY AS THE SOLE
BUYER OF THE PRODUCT FROM THE PRODUCERS AND EVEN THOUGH ONE OF THE
DEFENDANTS BECAME THE EXCLUSIVE SELLING AGENT OF THAT GOVERNMENTAL
AUTHORITY.   SINCE THE ACTIVITIES OF THE DEFENDANTS HAD AN IMPACT
WITHIN THE UNITED STATES AND UPON ITS FOREIGN TRADE, AMERICAN BANANA
WAS EXPRESSLY HELD NOT TO BE CONTROLLING.  (FN13) 

OLSEN V. SMITH, 195 U.S. 332; UNITED STATES V. ROCK ROYAL CO-OP, 307
U.S. 533; AND PARKER V. BROWN, 317 U.S. 341, DO NOT HELP RESPONDENTS. 
THESE DECISIONS, EACH OF WHICH SUSTAINED THE VALIDITY OF MANDATORY
STATE OR FEDERAL GOVERNMENTAL REGULATIONS AGAINST A CLAIM OF ANTITRUST
ILLEGALITY, ARE WIDE OF THE MARK.  IN THE PRESENT CASE PETITIONERS DO
NOT QUESTION THE VALIDITY OF ANY ACTION TAKEN BY THE CANADIAN
GOVERNMENT OR BY ITS METALS CONTROLLER.  NOR IS THERE LEFT IN THE CASE
ANY QUESTION OF THE LIABILITY OF THE CANADIAN GOVERNMENT'S AGENT, FOR
ELECTRO MET OF CANADA WAS NOT SERVED.  WHAT THE PETITIONERS HERE
CONTEND IS THAT THE RESPONDENTS ARE LIABLE FOR ACTIONS WHICH THEY
THEMSELVES JOINTLY TOOK, AS PART OF THEIR UNLAWFUL CONSPIRACY, TO
INFLUENCE OR TO DIRECT THE ELIMINATION OF CONTINENTAL FROM THE CANADIAN
MARKET.  AS IN SISAL, THE CONSPIRACY WAS LAID IN THE UNITED STATES, WAS
EFFECTUATED BOTH HERE AND ABROAD, AND RESPONDENTS ARE NOT INSULATED BY
THE FACT THAT THEIR CONSPIRACY INVOLVED SOME ACTS BY THE AGENT OF A
FOREIGN GOVERNMENT. 

FROM THE EVIDENCE WHICH PETITIONERS OFFERED IT APPEARS THAT
CONTINENTAL COMPLAINED TO THE CANADIAN METALS CONTROLLER THAT
CONTINENTAL HAD LOST ITS CANADIAN BUSINESS.  THE CONTROLLER REFERRED
CONTINENTAL TO ONE OF THE RESPONDENTS.  BUT THERE IS NO INDICATION THAT
THE CONTROLLER OR ANY OTHER OFFICIAL WITHIN THE STRUCTURE OF THE
CANADIAN GOVERNMENT APPROVED OR WOULD HAVE APPROVED OF JOINT EFFORTS TO
MONOPOLIZE THE PRODUCTION AND SALE OF VANADIUM OR DIRECTED THAT
PURCHASES FROM CONTINENTAL BE STOPPED.  THE EXCLUSION, CONTINENTAL
CLAIMS, RESULTED FROM THE ACTION OF ELECTRO MET OF CANADA, TAKEN WITHIN
THE AREA OF ITS DISCRETIONARY POWERS GRANTED BY THE METALS CONTROLLER
AND IN CONCERT WITH OR UNDER THE DIRECTION OF THE RESPONDENTS.  THE
OFFER OF PROOF AT LEAST PRESENTED AN ISSUE FOR THE JURY'S RESOLUTION AS
TO WHETHER THE LOSS OF CONTINENTAL'S CANADIAN BUSINESS WAS OCCASIONED
BY RESPONDENTS' ACTIVITIES.  RESPONDENTS ARE AFFORDED NO DEFENSE FROM
THE FACT THAT ELECTRO MET OF CANADA, IN CARRYING OUT THE BARE ACT OF
PURCHASING VANADIUM FROM RESPONDENTS RATHER THAN CONTINENTAL, WAS
ACTING IN A MANNER PERMITTED BY CANADIAN LAW.  THERE IS NOTHING TO
INDICATE THAT SUCH LAW IN ANY WAY COMPELLED DISCRIMINATORY PURCHASING,
AND IT IS WELL SETTLED THAT ACTS WHICH ARE IN THEMSELVES LEGAL LOSE
THAT CHARACTER WHEN THEY BECOME CONSTITUENT ELEMENTS OF AN UNLAWFUL
SCHEME.  SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 396; AMERICAN
TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 809; STEELE V. BULOVA WATCH
CO., 344 U.S. 280,287.  SEE GEORGIA V. PENNSYLVANIA R. CO., 324 U.S.
439, 457-458; SLICK AIRWAYS V. AMERICAN AIRLINES, 107 F. SUPP. 199, 207
(D.C.N.J.). 

THE CASE OF EASTERN RAILROAD PRESIDENTS CONF. V. NOERR MOTOR FREIGHT,
INC., 365 U.S. 127, CITED BY THE COURT BELOW AND MUCH RELIED UPON BY
RESPONDENTS HERE, IS PLAINLY INAPPOSITE.  THE COURT THERE HELD NOT
COGNIZABLE UNDER THE SHERMAN ACT A COMPLAINT CHARGING, IN ESSENCE, THAT
THE DEFENDANTS HAD ENGAGED IN A CONCERTED PUBLICITY CAMPAIGN TO FOSTER
THE ADOPTION OF LAWS AND LAW ENFORCEMENT PRACTICES INIMICAL TO
PLAINTIFFS' BUSINESS.  FINDING NO BASIS FOR IMPUTING TO THE SHERMAN ACT
A PURPOSE TO REGULATE POLITICAL ACTIVITY, A PURPOSE WHICH WOULD HAVE
ENCOUNTERED SERIOUS CONSTITUTIONAL BARRIERS, THE COURT RULED THE
DEFENDANTS' ACTIVITIES TO BE OUTSIDE THE BAN OF THE ACT "AT LEAST
INSOFAR AS THOSE ACTIVITIES COMPRISED MERE SOLICITATION OF GOVERNMENTAL
ACTION WITH RESPECT TO THE PASSAGE AND ENFORCEMENT OF LAWS."  365 U.S.,
AT 138.  IN THIS CASE, RESPONDENTS' CONDUCT IS WHOLLY DISSIMILAR TO
THAT OF THE DEFENDANTS IN NOERR.  RESPONDENTS WERE ENGAGED IN PRIVATE
COMMERCIAL ACTIVITY, NO ELEMENT OF WHICH INVOLVED SEEKING TO PROCURE
THE PASSAGE OR ENFORCEMENT OF LAWS.  TO SUBJECT THEM TO LIABILITY UNDER
THE SHERMAN ACT FOR ELIMINATING A COMPETITOR FROM THE CANADIAN MARKET
BY EXERCISE OF THE DISCRETIONARY POWER CONFERRED UPON ELECTRO MET OF
CANADA BY THE CANADIAN GOVERNMENT WOULD EFFECTUATE THE PURPOSES OF THE
SHERMAN ACT AND WOULD NOT REMOTELY INFRINGE UPON ANY OF THE
CONSTITUTIONALLY PROTECTED FREEDOMS SPOKEN OF IN NOERR. 

                                       III. 

SINCE OUR DECISION CONCERNING THE ALLEGED LOSS OF CONTINENTAL'S
CANADIAN BUSINESS WILL IN ANY EVENT REQUIRE A NEW TRIAL OF THE ENTIRE
CASE IN VIEW OF THE CLOSE INTERCONNECTION BETWEEN THE CANADIAN AND
DOMESTIC ISSUES, WE SHALL REMAND THE CASE TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS.  WE THEREFORE DEEM IT APPROPRIATE TO PASS UPON
CERTAIN OF THE ALLEGED TRIAL ERRORS RAISED BY CONTINENTAL IN THE COURT
OF APPEALS BUT NOT CONSIDERED BY THAT COURT.  IN PASSING UPON THESE
ISSUES, WE ARE NOT TO BE UNDERSTOOD AS EXPRESSING ANY VIEWS ON THE
MERITS OF THOSE MATTERS RAISED BY CONTINENTAL BEFORE THE COURT OF
APPEALS BUT NOT DISCUSSED HERE. 

AN ERROR COMMITTED BY THE TRIAL COURT, PERHAPS UNDERSTANDABLE BECAUSE
THE TRIAL PRECEDED THIS COURT'S DECISION IN KLOR'S, INC., V. BROADWAY
HALE STORES, INC., 359 U.S. 207, WAS THE "PUBLIC INJURY" CHARGE. 
ALTHOUGH PETITIONERS PLEADED A CONCERTED REFUSAL TO DEAL WITH THEM BY
RESPONDENTS, A PRICE-FIXING CONSPIRACY, AND AN ALLOCATION OF CUSTOMERS,
ALL PER SE VIOLATIONS UNDER SEC. 1 OF THE SHERMAN ACT, THE COURT
CHARGED THE JURY THAT A CONSPIRACY MUST BE PROVED "WHICH WAS REASONABLY
CALCULATED TO PREJUDICE THE PUBLIC INTEREST BY UNDULY" RESTRAINING
TRADE, AND WHICH WAS INTENDED "TO INJURE THE GENERAL PUBLIC BY"
RESTRAINING TRADE.  UNDER THE RULE STATED IN KLOR'S, THIS CHARGE WAS
ERROR. 

THE TRIAL COURT ALSO ERRED IN ITS TREATMENT OF MONOPOLIZATION. 
INITIALLY, IN ITS CHARGE TO THE JURY, THE COURT DEFINED "MONOPOLIZE" AS
REFERRING TO "THE JOINT ACQUISITION OR MAINTENANCE BY THE MEMBERS OF
THE CONSPIRACY FORMED FOR THAT PURPOSE, OF THE POWER TO CONTROL AND
DOMINATE INTERSTATE TRADE AND COMMERCE IN A COMMODITY TO SUCH AN EXTENT
THAT THEY ARE ABLE, AS A GROUP, TO EXCLUDE ACTUAL OR POTENTIAL
COMPETITORS FROM THE FIELD, ACCOMPANIED WITH THE INTENTION AND PURPOSE
TO EXERCISE SUCH POWER."  THE COURT ALSO RELATED ITS DEFINITION OF
"ATTEMPT TO MONOPOLIZE" TO ACTION TAKEN BY A COMBINATION OR
CONSPIRACY.  THE JURY WAS FURTHER INSTRUCTED THAT "AN ESSENTIAL ELEMENT
OF THE ILLEGAL MONOPOLY OR MONOPOLIZATION IS THE EXISTENCE OF A
COMBINATION OR CONSPIRACY TO ACQUIRE AND MAINTAIN THE POWER" AND THAT A
VERDICT MUST BE RETURNED FOR THE DEFENDANTS "IF YOU FIND THAT THE
PLAINTIFFS HAVE NOT PROVED THAT THERE WAS  ...  A CONSPIRACY." 
PETITIONERS DULY EXCEPTED TO THE CHARGE ON THE GROUND THAT THEY WERE
ENTITLED TO PREVAIL IF THEY COULD PROVE THAT EITHER RESPONDENT
MONOPOLIZED UNILATERALLY. 

PETITIONERS' COMPLAINT DID NOT PRECLUDE RELIANCE ON UNILATERAL
MONOPOLIZATION AND THE EVIDENCE OFFERED WAS RELEVANT AND MATERIAL TO
SUCH A CHARGE.  THE TRIAL COURT'S MISINTERPRETATION OF THE LAW IN
DEFINING "MONOPOLIZATION" AND "ATTEMPTED MONOPOLIZATION" IN TERMS OF
"CONSPIRACY TO MONOPOLIZE" WAS THEREFORE PREJUDICIAL RATHER THAN
HARMLESS.  THIS ERROR SHOULD NOT BE REPEATED IN A NEW TRIAL.  (FN14) 

THE TRIAL COURT FURTHER ERRED IN ITS PERSISTENT EXCLUSION OF EVIDENCE
RELATING TO THE PRE-1938 PERIOD, ON THE GROUND THAT SINCE MR. LEIR CAME
TO THIS COUNTRY IN 1938 NOTHING WHICH TRANSPIRED EARLIER COULD BE
RELEVANT TO HIS SUIT.  PETITIONERS SOUGHT TO INTRODUCE EVIDENCE THAT
THE CONSPIRACY AND MONOPOLIZATION ALLEGED BEGAN IN THE EARLY 1930'S,
THAT OVERT ACTS IN FURTHERANCE THEREOF OCCURRED IN THE 1930'S, AND THAT
IT WAS PURSUANT TO THIS ANTICOMPETITIVE SCHEME THAT RESPONDENTS SOUGHT
TO AND DID ELIMINATE PETITIONERS FROM THE VANADIUM INDUSTRY AFTER
1938.  THIS EVIDENCE WAS CLEARLY MATERIAL TO PETITIONERS' CHARGE THAT
THERE WAS A CONSPIRACY AND MONOPOLIZATION IN EXISTENCE WHEN THEY CAME
INTO THE INDUSTRY, AND THAT THEY WERE ELIMINATED IN FURTHERANCE
THEREOF.  (FN15)  WE DO NOT MEAN THAT A TRIAL COURT MAY NOT PLACE
REASONABLE LIMITS UPON SUCH EVIDENCE OR SET A REASONABLE CUT-OFF DATE,
EVIDENCE BEFORE WHICH POINT IS TO BE CONSIDERED TOO REMOTE TO HAVE
SUFFICIENT PROBATIVE VALUE TO JUSTIFY BURDENING THE RECORD WITH IT.
(FN16)  BUT THAT WAS NOT THE BASIS FOR THIS EXCLUSIONARY RULING. 

WE CONCLUDE THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE VACATED
AND THE CASE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE ACTION WAS BROUGHT UNDER SEC. 4 OF THE CLAYTON ACT, 15
U.S.C. SEC. 15: 

"ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY
REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR IN
ANY DISTRICT COURT OF THE UNITED STATES  ...  AND SHALL RECOVER
THREEFOLD THE DAMAGES BY HIM SUSTAINED, AND THE COST OF SUIT, INCLUDING
A REASONABLE ATTORNEY'S FEE." 

FN2  THE PARTNERSHIP IS THE SUCCESSOR IN INTEREST TO CONTINENTAL ORE
CORPORATION, ORGANIZED IN 1938 BUT LATER DISSOLVED. 

FN3  DURING THE YEARS IN QUESTION HERE THE CONVERSION WAS
ACCOMPLISHED BY RESPONDENTS IN ELECTRIC FURNACES.  CONTINENTAL SOUGHT
TO INTRODUCE THE MAKING OF FERROVANADIUM BY THE ALUMINOTHERMIC PROCESS,
WHICH IT CLAIMED WAS MORE EFFICIENT AND ECONOMICAL THAN RESPONDENTS'
METHOD. 

FN4  THE SHERMAN ACT, SECS. 1-2, 15 U.S.C. SECS. 1-2, PROVIDE IN
PERTINENT PART: 

"EVERY CONTRACT, COMBINATION IN THE FORM OF TRUST OR OTHERWISE, OR
CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE AMONG THE SEVERAL STATES,
OR WITHIN FOREIGN NATIONS, IS HEREBY DECLARED TO BE ILLEGAL  ...  . 

"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  ...  ." 

FN5  THE COMPLAINT ALLEGED THAT VCA SOLD APPROXIMATELY TWO-THIRDS OF
ALL FERROVANADIUM AND VANADIUM OXIDE SOLD BY DEFENDANTS (WHICH WAS SAID
TO AMOUNT TO APPROXIMATELY 99 PERCENT OF ALL FERROVANADIUM AND VANADIUM
OXIDE SOLD AND CONSUMED IN THE UNITED STATES), WHILE ELECTRO MET SALES
(A CARBIDE SUBSIDIARY) SOLD APPROXIMATELY ONE-THIRD.  ACCORDING TO
PETITIONERS' EVIDENCE, THE CARBIDE GROUP PRODUCED APPROXIMATELY 77
PERCENT OF DOMESTIC VANADIUM OXIDE, WHILE VCA PRODUCED ABOUT 65 PERCENT
OF FERROVANADIUM. 

FN6  AS PROFESSOR MOORE HAS INDICATED, "IN RULING ON THE MOTION FOR
DIRECTED VERDICT THE TRIAL COURT VIEWS THE EVIDENCE IN THE LIGHT MOST
FAVORABLE TO THE PARTY AGAINST WHOM THE MOTION IS MADE.  ON APPEAL,
LIKEWISE, THE APPELLATE COURT MUST CONSIDER THE EVIDENCE IN ITS
STRONGEST LIGHT IN FAVOR OF THE PARTY AGAINST WHOM THE MOTION FOR
DIRECTED VERDICT WAS MADE, AND MUST GIVE HIM THE ADVANTAGE OF EVERY
FAIR AND REASONABLE INTENDMENT THAT THE EVIDENCE CAN JUSTIFY."  5
MOORE'S FEDERAL PRACTICE 2316 (2D ED., 1951).  SEE PAWLING V. UNITED
STATES, 4 CRANCH 219; GUNNING V. COOLEY, 281 U.S. 90; TENNANT V. PEORIA
& P.U.R.  CO., 321 U.S. 29.  CF. SMITH V. REINAUER OIL TRANSPORT, 256
F.2D 646, 649 (C.A. 1ST CIR.). 

THE SAME RULE GOVERNS IN RULING UPON MOTIONS FOR DIRECTED VERDICT IN
TREBLE DAMAGE SUITS UNDER THE ANTITRUST LAWS.  SCHAD V. TWENTIETH
CENTURY-FOX FILM CORP., 136 F.2D 991, 993 (C.A. 3D CIR.); WISCONSIN
LIQUOR CO. V. PARK & TILFORD DISTILLERS CORP., 267 F.2D 928, 930 (C.A.
7TH CIR.).  CF. UNITED STATES V. DIEBOLD, INC., 369 U.S. 654, 655;
POLLER V. COLUMBIA BROADCASTING SYSTEM, INC., 368 U.S. 464, 473. 

FN7  289 F.2D, AT 90.  FOR THIS STATEMENT, THE COURT OF APPEALS
RELIED UPON BIGELOW V. RKO RADIO PICTURES, INC., 327 U.S. 251; EASTMAN
KODAK CO. OF NEW YORK V. SOUTHERN PHOTO MATERIALS CO., 273 U.S. 359;
STORY PARCHMENT CO. V. PATERSON PARCHMENT PAPER CO., 282 U.S. 555;
MARTIN V. HERZOG, 228 N.Y. 164, 170-171, 126 N.E. 814, 816.  THUS IN
BIGELOW THIS COURT STATED:  "IN THE ABSENCE OF MORE PRECISE PROOF, THE
JURY COULD CONCLUDE AS A MATTER OF JUST AND REASONABLE INFERENCE FROM
THE PROOF OF DEFENDANTS' WRONGFUL ACTS AND THEIR TENDENCY TO INJURE
PLANTIFFS' BUSINESS, AND FROM THE EVIDENCE OF THE DECLINE IN PRICES,
PROFITS AND VALUES, NOT SHOWN TO BE ATTRIBUTABLE TO OTHER CAUSES, THAT
DEFENDANTS' WRONGFUL ACTS HAD CAUSED DAMAGE TO THE PLAINTIFFS."  327
U.S., AT 264.  "THE MOST ELEMENTARY CONCEPTIONS OF JUSTICE AND PUBLIC
POLICY REQUIRE THAT THE WRONGDOER SHALL BEAR THE RISK OF THE
UNCERTAINTY WHICH HIS OWN WRONG HAS CREATED."  ID., AT 265.  SEE
BORDONARO BROS. THEATRES V. PARAMOUNT PICTURES, 176 F.2D 594, 597
(C.A.2D CIR.); ATLAS BUILDING PROD.  CO. V. DIAMOND BLOCK & GRAVEL CO.,
269 F.2D 950, 957-959 (C.A. 10TH CIR.). 

FN8  ROYSTER DRIVE-IN THEATRES, INC., V. AMERICAN BROADCASTING
PARAMOUNT THEATRES, INC., 268 F.2D 246, 251; STANDARD OIL CO. OF
CALIFORNIA V. MOORE, 251 F.2D 188, 198; CONGRESS BLDG. CORP. V. LOEW'S,
INC., 246 F.2D 587, 596-598; MILWAUKEE TOWNE CORP. V. LOEW'S, INC., 190
F.2D 561, 568. 

FN9  CF. KLOR'S, INC., V. BROADWAY-HALE STORES, INC., 359 U.S. 207. 

FN10  THE COURT OF APPEALS' INTERPRETATION OF THE EVIDENCE WAS THAT
IN 1943 CONTINENTAL DECLINED TO DEAL WITH NISLEY & WILSON, AN
INDEPENDENT PRODUCER OF VANADIUM OXIDE, PARTICULARLY IN OCTOBER 1943,
WHEN CONTINENTAL SUPPOSEDLY FAILED TO MAKE ANY EFFORT TO PROCURE NISLEY
& WILSON'S FLAKED VANADIUM OXIDE AND IN JANUARY 1944 WHEN, ACCORDING TO
THE COURT, CONTINENTAL REFUSED TO BUY SOME 300,000 POUNDS OF "OXIDE"
OFFERED BY NISLEY & WILSON AT THE TIME THE LATTER WENT OUT OF
BUSINESS.  BUT IN OCTOBER 1943, NISLEY & WILSON WAS ENTIRELY ENGAGED IN
PROCESSING ORE FURNISHED BY THE GOVERNMENT AND ITS VANADIUM OXIDE
PRODUCT WAS OBTAINABLE ONLY THROUGH ALLOCATION BY THE WAR PRODUCTION
BOARD.  THE CORRESPONDENCE BETWEEN NISLEY & WILSON AND CONTINENTAL WAS
LOOKING TOWARD A POSTWAR RELATIONSHIP, AND CONTINENTAL'S LETTER MIGHT
WELL BE INTERPRETED BY A JURY NOT AS A REFUSAL TO BUY BUT AS A
STATEMENT OF INTENTION BY CONTINENTAL TO COOPERATE WITH NISLEY & WILSON
TO KEEP THE LATTER'S MILL RUNNING DURING PEACETIME.  AS FOR THE 300,000
POUNDS OF "OXIDE" WHICH THE COURT SAID WAS OFFERED TO CONTINENTAL, THE
MATERIAL ACTUALLY WAS ORE, NOT OXIDE.  FURTHERMORE, NISLEY & WILSON DID
NOT OWN THE ORE AND FAILED IN ITS EFFORT TO BUY IT FROM THE
GOVERNMENT. 

FN11  CANADA'S ENTRY INTO WORLD WAR II PROMPTED THE CANADIAN
GOVERNMENT TO TAKE EXTRAORDINARY MEASURES TO ASSURE OPTIMUM
AVAILABILITY OF STRATEGIC MATERIALS TO CANADIAN PRIVATE INDUSTRIES
ENGAGED IN THE WAR EFFORT.  PURSUANT TO THESE MEASURES, THE OFFICE OF
METALS CONTROLLER WAS ESTABLISHED AND GIVEN BROAD POWERS TO REGULATE
THE PROCUREMENT OF THE MATERIALS AND TO ALLOCATE THEM TO INDUSTRIAL
USERS.  SEE ORDER OF THE GOVERNOR GENERAL IN COUNCIL, P.C. 3187, JULY
15, 1940.  THE METALS CONTROLLER ENLISTED THE AID OF ELECTRO MET OF
CANADA IN EARLY 1943, DELEGATING TO IT THE DISCRETIONARY AGENCY POWER
TO PURCHASE AND ALLOCATE TO CANADIAN INDUSTRIES ALL VANADIUM PRODUCTS
REQUIRED BY THEM.  THE VALIDITY OF THESE WARTIME MEASURES AND
DELEGATIONS UNDER CANADIAN LAW IS NOT HERE CONTESTED.  CF.  REFERENCES
RE REGULATIONS (CHEMICALS) UNDER WAR MEASURES ACT, 1 D.L.R. (1943)
248. 

FN12  SEE ALSO BREWSTER, ANTITRUST AND AMERICAN BUSINESS ABROAD 65-75
(1958); FUGATE, FOREIGN COMMERCE AND THE ANTITRUST LAWS 20-55 (1958);
ATTY. GEN. NAT. COMM. ANTITRUST REP. 66-77 (1955); KRAMER, APPLICATION
OF THE SHERMAN ACT TO FOREIGN COMMERCE, 3 ANTITRUST BULL.  387 (1958);
CARLSTON, ANTITRUST POLICY ABROAD, 49 N.W.U.L. REV. 569 (1954). 

FN13  "THE CIRCUMSTANCES OF THE PRESENT CONTROVERSY ARE RADICALLY
DIFFERENT FROM THOSE PRESENTED IN AMERICAN BANANA CO. V. UNITED FRUIT
CO., SUPRA, AND THE DOCTRINE THERE APPROVED IS NOT CONTROLLING HERE
...  . 

"HERE WE HAVE A CONTRACT, COMBINATION AND CONSPIRACY ENTERED INTO BY
PARTIES WITHIN THE UNITED STATES AND MADE EFFECTIVE BY ACTS DONE
THEREIN.  THE FUNDAMENTAL OBJECT WAS CONTROL OF BOTH IMPORTATION AND
SALES OF SISAL AND COMPLETE MONOPOLY OF BOTH INTERNAL AND EXTERNAL
TRADE AND COMMERCE THEREIN.  THE UNITED STATES COMPLAIN OF A VIOLATION
OF THEIR LAWS WITHIN THEIR OWN TERRITORY BY PARTIES SUBJECT TO THEIR
JURISDICTION, NOT MERELY OF SOMETHING DONE BY ANOTHER GOVERNMENT AT THE
INSTIGATION OF PRIVATE PARTIES.  TRUE, THE CONSPIRATORS WERE AIDED BY
DISCRIMINATING LEGISLATION, BUT BY THEIR OWN DELIBERATE ACTS, HERE AND
ELSEWHERE, THEY BROUGHT ABOUT FORBIDDEN RESULTS WITHIN THE UNITED
STATES.  THEY ARE WITHIN THE JURISDICTION OF OUR COURTS AND MAY BE
PUNISHED FOR OFFENSES AGAINST OUR LAWS."  274 U.S., AT 275-276. 

FN14  AMONG THE CASES IN WHICH THIS COURT HAS CONDEMNED UNILATERAL
MONOPOLIZATION ARE MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V. UNITED
STATES, 362 U.S. 458, 468; LORAIN JOURNAL V. UNITED STATES, 342 U.S.
143, 154.  SEE ALSO UNITED STATES V. ALUMINUM CO., 148 F.2D 416 (C.A.2D
CIR.); UNITED STATES V. UNITED SHOE MACH. CO., 110 F. SUPP. 295 (D.
MASS.), AFF'D, 347 U.S. 521. 

FN15  THUS IN STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 75-76,
THIS COURT CONSIDERED EVIDENCE AS TO DEFENDANTS' ACTS IN 1879-1882,
PRIOR TO THE SHERMAN ACT'S PASSAGE IN 1890, IN ORDER TO ASCERTAIN THE
MONOPOLISTIC INTENT OR PURPOSE OF THE FOUNDERS OF THE STANDARD OIL
TRUST.  AND IN KANSAS CITY STAR CO. V. UNITED STATES, 240 F.2D 643, 650
651 (C.A. 8TH CIR.), - EVIDENCE FROM THE PERIOD PRECEDING THE CRIMINAL
STATUTE OF LIMITATIONS WAS ALLOWED INTO CONSIDERATION TO SHOW THAT
DEFENDANTS' COURSE OF CONDUCT OVER A PERIOD OF YEARS INDICATED THAT
THEY RETAINED AN UNLAWFUL INTENT DURING THE IMMEDIATE PRE-INDICTMENT
PERIOD. 

FN16  SEE UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 228
231. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :























CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION NO. 795 V. YELLOW TRANSIT
FREIGHT LINES, INC. 370 U.S. 711 


NO. 13.  ARGUED OCTOBER 11, 1961 - DECIDED JUNE 25, 1962 - REPORTED
BELOW:  282 F.2D 345. 


JUDGMENT REVERSED ON THE AUTHORITY OF SINCLAIR RFG.  CO. V. ATKINSON,
ANTE, P. 195. 

CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION NO. 795 ET AL. V. YELLOW
TRANSIT FREIGHT LINES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PER CURIAM. 

REVERSED.  SINCLAIR RFG.  CO. V. ATKINSON, ANTE, P. 195. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
HARLAN JOIN, CONCURRING. 

SINCE IT IS CLEAR THAT THE COLLECTIVE BARGAINING AGREEMENT INVOLVED
IN THIS CASE DOES NOT BIND EITHER PARTY TO ARBITRATE ANY DISPUTE, I
AGREE THAT NO INJUNCTION SHOULD BE GRANTED.*  SEE SINCLAIR RFG.  CO. V.
ATKINSON, ANTE, P. 215 (DISSENTING OPINION). 

*THE GRIEVANCE MACHINERY EMPHASIZES VOLUNTARY SETTLEMENTS THROUGH
NEGOTIATIONS BETWEEN EMPLOYER AND UNION REPRESENTATIVES.  SETTLEMENT IS
FIRST TO BE ATTEMPTED BETWEEN THE EMPLOYER AND THE LOCAL UNION INVOLVED
AND, FAILING ADJUSTMENT, NEGOTIATED SETTLEMENT IS TO BE ATTEMPTED BY A
JOINT STATE COMMITTEE CONSISTING OF EQUAL NUMBERS OF EMPLOYER AND UNION
REPRESENTATIVES.  IF A MAJORITY OF THAT COMMITTEE "SETTLES A DISPUTE,"
SUCH A DECISION WILL BE FINAL AND BINDING ON BOTH PARTIES."  IF A JOINT
STATE COMMITTEE FAILS TO SETTLE A DISPUTE, A NEGOTIATED SETTLEMENT IS
THEN TO BE ATTEMPTED BY A JOINT AREA COMMITTEE CONSISTING OF EQUAL
NUMBERS OF EMPLOYER AND UNION REPRESENTATIVES DULY ELECTED BY THE
VARIOUS JOINT STATE COMMITTEES.  THIS IS THE LAST STAGE UNLESS THERE IS
AGREEMENT AT THAT POINT TO SUBMIT UNSETTLED DISPUTES TO ARBITRATION. 
OBVIOUSLY, EITHER EMPLOYER OR UNION REPRESENTATIVES ARE FREE TO PREVENT
ARBITRATION.  FOR THE CONTRACT PROVISIONS ARE: 

"(D)  DEADLOCKED CASES MAY BE SUBMITTED TO UMPIRE HANDLING IF A
MAJORITY OF THE JOINT AREA COMMITTEE DETERMINES TO SUBMIT SUCH MATTER
TO AN UMPIRE FOR DECISION.  OTHERWISE EITHER PARTY SHALL BE PERMITTED
ALL LEGAL OR ECONOMIC RECOURSE. 

     *         *         *         *      * 

"(F)  IN THE EVENT OF STRIKES, WORK-STOPPAGES OR OTHER ACTIVITIES
WHICH ARE PERMITTED IN CASE OF DEADLOCK, DEFAULT, OR FAILURE TO COMPLY
WITH MAJORITY DECISIONS, NO INTERPRETATION OF THIS AGREEMENT BY ANY
TRIBUNAL SHALL BE BINDING UPON THE UNION OR AFFECT THE LEGALITY OR
LAWFULNESS OF THE STRIKE UNLESS THE UNION STIPULATES TO BE BOUND BY
SUCH INTERPRETATION, IT BEING THE INTENTION OF THE PARTIES TO RESOLVE
ALL QUESTIONS OF INTERPRETATION BY MUTUAL AGREEMENT.  NOTHING HEREIN
SHALL PREVENT LEGAL PROCEEDINGS BY THE EMPLOYER WHERE THE STRIKE IS IN
VIOLATION OF THIS AGREEMENT." 
..END :










IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN 370 U.S. 713 


NO. 138.  ARGUED FEBRUARY 28, 1962.  - DECIDED JUNE 25, 1962.* -
REPORTED BELOW:  289 F.2D 426. 

*TOGETHER WITH NO. 180, MISC., IDLEWILD BON VOYAGE LIQUOR CORP. V.
BICKS ET AL., U.S. DISTRICT JUDGES, ON PETITION FOR WRIT OF MANDAMUS. 


HAVING BEEN INFORMED BY OFFICIALS OF THE STATE OF NEW YORK THAT ITS
BUSINESS OF SELLING BOTTLED WINES AND LIQUORS FOR EXPORT FROM THE
UNITED STATES AND DELIVERY TO INTERNATIONAL AIRLINE PASSENGERS AT THEIR
OVERSEAS DESTINATIONS WAS ILLEGAL UNDER A STATE STATUTE, PETITIONER
SUED IN A FEDERAL DISTRICT COURT FOR A JUDGMENT DECLARING THAT THE
STATUTE, AS APPLIED, WAS REPUGNANT TO THE COMMERCE CLAUSE, THE EXPORT
IMPORT CLAUSE, AND THE SUPREMACY CLAUSE OF THE FEDERAL CONSTITUTION AND
FOR AN INJUNCTION AGAINST ITS ENFORCEMENT.  A REQUEST FOR A THREE-JUDGE
COURT UNDER 28 U.S.C. SECS. 2281, 2284 WAS DENIED, AND THE SINGLE
DISTRICT JUDGE TO WHOM IT WAS PRESENTED SIMPLY RETAINED JURISDICTION OF
THE CAUSE, IN ORDER TO GIVE THE STATE COURTS AN OPPORTUNITY TO PASS
UPON THE CONSTITUTIONAL ISSUES PRESENTED, ALTHOUGH THERE WAS NO
RELEVANT LITIGATION THEN PENDING IN THE STATE COURTS.  THE COURT OF
APPEALS EXPRESSED THE OPINION THAT A THREE-JUDGE COURT SHOULD HAVE BEEN
CONVENED BUT THAT IT WAS POWERLESS TO DIRECT SUCH ACTION.  THEREAFTER
PETITIONER MOVED AGAIN FOR A THREE-JUDGE COURT; BUT THE MOTION WAS
AGAIN DENIED.  HELD:  A THREE-JUDGE COURT SHOULD HAVE BEEN CONVENED,
AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR EXPEDITIOUS ACTION
IN ACCORDANCE WITH THIS VIEW.  PP. 714-716. 

IDLEWILD BON VOYAGE LIQUOR CORP. V. EPSTEIN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE PETITIONER IS IN THE BUSINESS OF SELLING BOTTLED WINES AND
LIQUORS FOR EXPORT FROM THE UNITED STATES AND DELIVERY TO INTERNATIONAL
AIRLINE PASSENGERS AT THEIR OVERSEAS DESTINATIONS.  UPON ADVICE OF THE
ATTORNEY GENERAL OF NEW YORK, THE STATE LIQUOR AUTHORITY INFORMED THE
PETITIONER THAT ITS BUSINESS WAS ILLEGAL UNDER THE PROVISIONS OF THE
NEW YORK ALCOHOLIC BEVERAGE CONTROL LAW.  THE PETITIONER THEN
INSTITUTED AN ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AGAINST THE RESPONDENTS, MEMBERS OF THE
STATE LIQUOR AUTHORITY.  THE COMPLAINT ASKED FOR A JUDGMENT DECLARING
THAT THE STATE STATUTES, AS APPLIED, WERE REPUGNANT TO THE COMMERCE
CLAUSE, THE EXPORT-IMPORT CLAUSE, AND THE SUPREMACY CLAUSE OF THE
UNITED STATES CONSTITUTION, AND FOR AN INJUNCTION RESTRAINING THE STATE
LIQUOR AUTHORITY FROM INTERFERING WITH THE PETITIONER'S BUSINESS. 

A REQUEST FOR A THREE-JUDGE COURT UNDER 28 U.S.C. SECS. 2281, 2284,
WAS DENIED.  INSTEAD, THE DISTRICT JUDGE TO WHOM THE REQUEST WAS
PRESENTED SIMPLY RETAINED JURISDICTION OF THE CAUSE, IN ORDER TO GIVE
THE STATE COURTS AN OPPORTUNITY TO PASS UPON THE CONSTITUTIONAL ISSUES
PRESENTED, ALTHOUGH THERE WAS NO RELEVANT LITIGATION THEN PENDING IN
THE STATE COURTS.  188 F. SUPP. 434. 

THE PETITIONER APPEALED TO THE COURT OF APPEALS FOR THE SECOND
CIRCUIT.  (FN1)  THAT COURT DISMISSED THE APPEAL, ONE JUDGE
DISSENTING.  289 F.2D 426.  UNAMBIGUOUSLY STATING ITS OPINION THAT THE
DISTRICT COURT HAD ACTED ERRONEOUSLY, AND THAT "A THREE-JUDGE DISTRICT
COURT SHOULD HAVE BEEN CONVENED," THE COURT OF APPEALS WAS NEVERTHELESS
OF THE VIEW THAT IT WAS POWERLESS TO TAKE FORMAL CORRECTIVE ACTION IN
LIGHT OF THIS COURT'S DECISION IN STRATTON V. ST. LOUIS S.W.R.  CO.,
282 U.S. 10.  (FN2) 

THEREAFTER THE PETITIONER ONCE AGAIN FILED A MOTION IN THE DISTRICT
COURT REQUESTING THAT A STATUTORY THREE-JUDGE COURT BE IMPANELED.  THE
REQUEST WAS AGAIN REFUSED UPON THE GROUND THAT THE PREVIOUS RULING MADE
BY OTHER JUDGES OF THE DISTRICT COURT HAD ESTABLISHED "THE LAW OF THIS
CASE," AND THAT THE COURT OF APPEALS' OPINION THAT A THREE-JUDGE COURT
SHOULD BE APPOINTED WAS MERELY A "DICTUM."  194 F. SUPP. 3.  WE GRANTED
CERTIORARI AND A MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF
MANDAMUS.  368 U.S. 812. 

WE AGREE WITH THE COURT OF APPEALS THAT A THREE-JUDGE COURT SHOULD
HAVE BEEN CONVENED IN THIS CASE.  WHEN AN APPLICATION FOR A STATUTORY
THREE-JUDGE COURT IS ADDRESSED TO A DISTRICT COURT, THE COURT'S INQUIRY
IS ADDRESSED TO A DISTRICT COURT, THE COURT'S INQUIRY IS APPROPRIATELY
LIMITED TO DETERMINING WHETHER THE CONSTITUTIONAL QUESTION RAISED IS
SUBSTANTIAL, WHETHER THE COMPLAINT AT LEAST FORMALLY ALLEGES A BASIS
FOR EQUITABLE RELIEF, AND WHETHER THE CASE PRESENTED OTHERWISE COMES
WITHIN THE REQUIREMENTS OF THE THREE-JUDGE STATUTE.  THOSE CRITERIA
WERE ASSUREDLY MET HERE, AND THE APPLICABLE JURISDICTIONAL STATUTE
THEREFORE MADE IT IMPERMISSIBLE FOR A SINGLE JUDGE TO DECIDE THE MERITS
OF THE CASE, EITHER BY GRANTING OR BY WITHHOLDING RELIEF.  (FN3) 

IN THE STRATTON CASE IT WAS HELD THAT A COURT OF APPEALS WAS
PRECLUDED FROM REVIEWING ON THE MERITS A CASE WHICH SHOULD HAVE
ORIGINALLY BEEN DETERMINED BY A COURT OF THREE JUDGES.  STRATTON DOES
NOT STAND FOR THE BROAD PROPOSITION THAT A COURT OF APPEALS IS
POWERLESS EVER TO GIVE ANY GUIDANCE WHEN A SINGLE JUDGE HAS ERRONEOUSLY
INVADED THE PROVINCE OF A THREE-JUDGE COURT.  THE COURT OF APPEALS
CLEARLY STATED ITS OPINION THAT A COURT OF THREE JUDGES OUGHT TO HAVE
BEEN CONVENED TO CONSIDER THIS LITIGATION.  THAT VIEW WAS CORRECT AND
SHOULD HAVE BEEN FOLLOWED UPON THE PETITIONER'S RENEWED MOTION THAT
SUCH A STATUTORY COURT BE IMPANELED. 

WE DEEM IT UNNECESSARY TO TAKE FORMAL ACTION ON THE PETITION FOR A
WRIT OF MANDAMUS.  THE CASE WILL BE REMANDED TO THE DISTRICT COURT FOR
EXPEDITIOUS ACTION CONSISTENT WITH THE VIEWS HERE EXPRESSED.  CF.
BAILEY V. PATTERSON, 369 U.S. 31, 34.  IT IS SO ORDERED. 

FN1  DURING THE PENDENCY OF THE APPEAL ANOTHER JUDGE OF THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ISSUED A TEMPORARY
INJUNCTION RESTRAINING THE RESPONDENTS FROM HARASSING THE PETITIONER'S
BUSINESS, BUT, RELYING ON THE ORIGINAL JUDGE'S ORDER, REFUSED A RENEWED
REQUEST FOR A THREE-JUDGE COURT. 

FN2  THE COURT OF APPEALS PROPERLY REJECTED THE ARGUMENT THAT THE
ORDER OF THE DISTRICT COURT "WAS NOT FINAL AND HENCE UNAPPEALABLE UNDER
28 U.S.C. SECS. 1291, 1292," POINTING OUT THAT "APPELLANT WAS
EFFECTIVELY OUT OF COURT."  289 F.2D, AT 428. 

FN3  THIS IS NOT A CASE LIKE CHICAGO, DULUTH & GEORGIAN BAY TRANSIT
CO. V. NIMS, 252 F.2D 317, WHERE A THREE-JUDGE COURT WAS REQUESTED ONLY
IN THE EVENT THAT IT SHOULD FIRST BE HELD THAT THE STATE STATUTE WAS BY
ITS TERMS APPLICABLE TO THE PLAINTIFF'S BUSINESS OPERATIONS. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THESE CASES. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 
..END :

















SILBER V. UNITED STATES 370 U.S. 717 


NO. 454.  ARGUED APRIL 19, 1962.  - DECIDED JUNE 25, 1962.  - 111 U.S.
APP. D.C. 331, 296 F.2D 588, REVERSED. 


PETITIONER'S INDICTMENT FOR VIOLATING 2 U.S.C. SEC. 192 WAS IDENTICAL
TO THOSE HELD DEFECTIVE IN RUSSELL V. UNITED STATES, 369 U.S. 749; THE
DISTRICT COURT ERRONEOUSLY DENIED A TIMELY MOTION TO DISMISS APPARENTLY
WAS NOT PRESENTED TO THE COURT OF APPEALS, AND IT WAS NOT BRIEFED OR
ARGUED IN THIS COURT.  HELD:  THIS COURT, AT ITS OPTION, MAY NOTICE A
PLAIN ERROR NOT PRESENTED, AND THE JUDGMENT SUSTAINING THE CONVICTION
IS REVERSED ON THE AUTHORITY OF RUSSELL V. UNITED STATES.  PP. 717
718. 

SILBER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  RUSSELL V. UNITED STATES, 369 U.S. 749. 
THE INDICTMENT UPON WHICH THE PETITIONER WAS TRIED WAS IDENTICAL TO
THOSE HELD DEFECTIVE IN RUSSELL.  THE PETITIONER'S TIMELY MOTION TO
DISMISS THE INDICTMENT, MADE IN ACCORD WITH FED. RULES CRIM. PROC.
12(B)(2), WAS ERRONEOUSLY DENIED BY THE DISTRICT COURT. 

ALTHOUGH THE TRIAL COURT SQUARELY CONSIDERED AND DECIDED THE ISSUE
RAISED BY THE MOTION TO DISMISS, IT WAS APPARENTLY NOT PRESENTED TO THE
COURT OF APPEALS AND WAS NOT BRIEFED OR ARGUED IN THIS COURT.  WHILE
ORDINARILY WE DO NOT TAKE NOTE OF ERRORS NOT CALLED TO THE ATTENTION OF
THE COURT OF APPEALS NOR PROPERLY RAISED HERE, THAT RULE IS NOT WITHOUT
EXCEPTION.  THE COURT HAS "THE POWER TO NOTICE A 'PLAIN ERROR' THOUGH
IT IS NOT ASSIGNED OR SPECIFIED," BROTHERHOOD OF CARPENTERS V. UNITED
STATES, 330 U.S. 395, 412.*  "IN EXCEPTIONAL CIRCUMSTANCES, ESPECIALLY
IN CRIMINAL CASES, APPELLATE COURTS, IN THE PUBLIC INTEREST, MAY, OF
THEIR OWN MOTION, NOTICE ERRORS TO WHICH NO EXCEPTION HAS BEEN TAKEN,
IF THE ERRORS ARE OBVIOUS, OR IF THEY OTHERWISE SERIOUSLY AFFECT THE
FAIRNESS, INTEGRITY OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS." 
UNITED STATES V. ATKINSON, 297 U.S. 157, 160.  OUR OWN RULES PROVIDE
THAT "THE COURT, AT ITS OPTION, MAY NOTICE A PLAIN ERROR NOT
PRESENTED."  REVISED RULES OF THE SUPREME COURT OF THE UNITED STATES,
RULE 40(1)(D)(2).  SEE ALSO FED. RULES CRIM. PROC. 52(B). 

*SEE BRASFIELD V. UNITED STATES, 272 U.S. 448, 450; MAHLER V. EBY,
264 U.S. 32, 45; WEEMS V. UNITED STATES, 217 U.S. 349, 362.  SEE ALSO
KESSLER V. STRECKER, 307 U.S. 22, 34. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN RUSSELL V. UNITED STATES, 369
U.S. 749, 779, 781. 
..END :

















UNITED STATES V. KNISS 370 U.S. 719 


NO. 762.  DECIDED JUNE 25, 1962.  - REVERSED. 


UNITED STATES V. KNISS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF WISCONSIN. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  UNITED STATES V. WISE, ANTE, P. 405. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :















UNITED STATES V. STALEY 370 U.S. 719 


NO. 882.  DECIDED JUNE 25, 1962.  - REVERSED. 


UNITED STATES V. STALEY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  UNITED STATES V. WISE, ANTE, P. 405. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :















CITY CENTER MOTEL, INC., V. FLORIDA HOTEL AND RESTAURANT COMMISSION 370
U.S. 720 


NO. 920.  DECIDED JUNE 25, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  134 SO. 2D 856. 


CITY CENTER MOTEL, INC., V. FLORIDA HOTEL AND RESTAURANT COMMISSION. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST APPELLATE
DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :












WASILEWSKI V. BOARD OF SCHOOL DIRECTORS OF THE CITY OF MILWAUKEE 370
U.S. 720 


NO. 1124, MISC.  DECIDED JUNE 25, 1962.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


WASILEWSKI V. BOARD OF SCHOOL DIRECTORS OF THE CITY OF MILWAUKEE. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













WINTERS V. OHIO 370 U.S. 721 


NO. 388, MISC.  DECIDED JUNE 25, 1962. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED FOR FURTHER
PROCEEDINGS. 

WINTERS V. OHIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE SUPREME COURT OF OHIO FOR FURTHER PROCEEDINGS. 
GRIFFIN V. ILLINOIS, 351 U.S. 12. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :









OLEN V. OLEN 370 U.S. 721 


NO. 1153, MISC.  DECIDED JUNE 25, 1962.  - APPEAL DISMISSED AND
CERTIORARI DENIED. 


OLEN V. OLEN. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














ELCHUK V. UNITED STATES 370 U.S. 722 


NO. 965, MISC.  DECIDED JUNE 25, 1962.  - REPORTED BELOW:  296 F.2D
723. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED FOR FURTHER
PROCEEDINGS. 

ELCHUK V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  UPON THE SUGGESTION OF THE
SOLICITOR GENERAL AND AN EXAMINATION OF THE ENTIRE RECORD, THE JUDGMENT
OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT IS VACATED
AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN WHICH
THE PETITIONER IS TO BE ACCORDED THE OPPORTUNITY TO PRESENT ORAL
ARGUMENT ON THE MERITS OF HIS APPEAL, EITHER PERSONALLY OR THROUGH
COUNSEL, TO THE SAME EXTENT AS SUCH OPPORTUNITY IS ACCORDED TO THE
UNITED STATES ATTORNEY. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :
























MARAKAR V. UNITED STATES 370 U.S. 723 


NO. 1191, MISC.  DECIDED JUNE 25, 1962.* - REPORTED BELOW:  300 F.2D
513. 

*TOGETHER WITH NO. 1234, MISC., ALI V. UNITED STATES, ALSO ON
PETITION FOR WRIT OF CERTIORARI TO THE SAME COURT. 


CERTIORARI GRANTED; JUDGMENTS VACATED; CAUSES REMANDED WITH DIRECTIONS
TO DISMISS THE INDICTMENTS. 

MARAKAR V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS ARE GRANTED.  ON
MOTION OF THE SOLICITOR GENERAL AND UPON AN EXAMINATION OF THE ENTIRE
RECORD, THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED, THE
JUDGMENTS ARE VACATED, AND THE CAUSES ARE REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY WITH DIRECTIONS TO
DISMISS THE INDICTMENTS. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE BRENNAN JOIN
THE COURT'S DISPOSITION BECAUSE THEY BELIEVE THAT THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT WAS AN INSURMOUNTABLE BARRIER TO THE
PROSECUTION OF THESE PETITIONERS UNDER THE SEPARATE INDICTMENTS
RETURNED ON APRIL 26, 1961, CHARGING EACH PETITIONER WITH A SUBSTANTIVE
OFFENSE OF ILLEGALLY BRINGING OPIUM INTO THIS COUNTRY.  SEE ABBATE V.
UNITED STATES, 359 U.S. 187, 196 (SEPARATE OPINION); CF. PETITE V.
UNITED STATES, 361 U.S. 529, 533 (DISSENTING OPINION). 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 
..END :















HARTMAN V. UNITED STATES 370 U.S. 724 


NO. 447, MISC.  DECIDED JUNE 25, 1962.  - CERTIORARI GRANTED; JUDGMENT
REVERSED.  - REPORTED BELOW: 290 F.2D 460. 


HARTMAN V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, THE MOTION FOR
LEAVE TO SUPPLEMENT THE PETITION FOR CERTIORARI AND THE PETITION FOR
WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED.  RUSSELL V.
UNITED STATES, 369 U.S. 749; SILBER V. UNITED STATES, ANTE, P. 717. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN RUSSELL V. UNITED STATES, 369
U.S. 749, 779, 781. 
..END :







ALLEN V. BANNAN 370 U.S. 725 


NO. 535, MISC.  DECIDED JUNE 25, 1962. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED TO THE DISTRICT
COURT FOR A HEARING ON THE MERITS OF PETITIONER'S APPLICATION FOR A
WRIT OF HABEAS CORPUS, SINCE PETITIONER HAS EXHAUSTED STATE REMEDIES. 

ALLEN V. BANNAN, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT IS VACATED AND THE CASE
IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF MICHIGAN FOR A HEARING ON THE MERITS OF THE PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS.  AFTER AN EXAMINATION OF THE
BRIEFS FILED BY THE PARTIES AND OF THE RECORD IN THIS CASE AS WELL AS
AN EXAMINATION OF THE RECORD CERTIFIED TO THIS COURT BY THE CLERK OF
THE SUPREME COURT OF MICHIGAN IN ALLEN V. MICHIGAN, 364 U.S. 934, WE
CONCLUDE THAT THE PETITIONER HAS EXHAUSTED STATE REMEDIES.  CF. MATTOX
V. SACKS, 369 U.S. 656. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :






















LOUISIANA, WASHINGTON V. WALKER 370 U.S. 726 


NO. 900, MISC.  DECIDED JUNE 25, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


LOUISIANA EX REL. WASHINGTON V. WALKER, WARDEN. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














GILLIAM V. UNITED STATES 370 U.S. 727 


NO. 1274, MISC.  DECIDED JUNE 25, 1962. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED TO THE COURT OF
APPEALS FOR FURTHER PROCEEDINGS. 

GILLIAM V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  UPON THE SUGGESTION OF THE
SOLICITOR GENERAL AND AN EXAMINATION OF THE ENTIRE RECORD, THE JUDGMENT
IS VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
PROCEEDINGS.  COPPEDGE V. UNITED STATES, 369 U.S. 438. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :







WHITUS V. BALKCOM 370 U.S. 728 


NO. 1357, MISC.  DECIDED JUNE 25, 1962.  - REPORTED BELOW:  299 F.2D
844. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED TO THE DISTRICT
COURT FOR A HEARING ON THE MERITS OF THE PETITION FOR WRIT OF HABEAS
CORPUS. 

WHITUS V. BALKCOM, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF GEORGIA FOR A HEARING ON THE MERITS OF THE PETITION FOR
WRIT OF HABEAS CORPUS. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :





SINCLAIR REFINING CO. V. ATKINSON 370 U.S. 195 


NO. 434.  ARGUED APRIL 18, 1962 - DECIDED JUNE 18, 1962 - 290 F.2D 312,
AFFIRMED. 


THIS SUIT UNDER SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT,
1947, WAS BROUGHT BY AN EMPLOYER TO ENJOIN WORK STOPPAGES, STRIKES,
PEACEFUL PICKETING AND SIMILAR ACTIVITIES BY LABOR UNIONS AND THEIR
OFFICERS AND MEMBERS, ALLEGEDLY IN VIOLATION OF A COLLECTIVE BARGAINING
AGREEMENT CONTAINING A NO-STRIKE CLAUSE AND PROVIDING A GRIEVANCE
PROCEDURE CULMINATING IN COMPULSORY, FINAL AND BINDING ARBITRATION OF
"ANY DIFFERENCE REGARDING WAGES, HOURS OR WORKING CONDITIONS."  HELD:
SUCH AN INJUNCTION WAS BARRED BY SEC. 4 OF THE NORRIS-LAGUARDIA ACT,
WHICH, WITH EXCEPTIONS NOT HERE MATERIAL, BARS FEDERAL COURTS FROM
ISSUING INJUNCTIONS "IN ANY CASE INVOLVING OR GROWING OUT OF ANY LABOR
DISPUTE."  PP. 196-215. 

(A)  THIS CASE INVOLVED A "LABOR DISPUTE" WITHIN THE MEANING OF THE
NORRIS-LAGUARDIA ACT - EVEN IF THE ALLEGED WORK STOPPAGES AND STRIKES
CONSTITUTED BREACHES OF A COLLECTIVE BARGAINING AGREEMENT.  PP. 199
203. 

(B)  THE SUBSEQUENT ENACTMENT OF SEC. 301 OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, AUTHORIZING SUITS IN FEDERAL COURTS "FOR VIOLATION
OF CONTRACTS BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION" HAS NOT SO
NARROWED THE PROVISIONS OF SEC. 4 OF THE NORRIS-LAGUARDIA ACT AS TO
PERMIT THE INJUNCTIONS ORIGINALLY PROSCRIBED THEREBY WHEN SUCH
INJUNCTIONS ARE SOUGHT AS REMEDIES FOR BREACHES OF A COLLECTIVE
BARGAINING AGREEMENT.  PP. 203-210. 

(C)  BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO R.&I.R. CO., 353
U.S. 30; TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448; UNITED
STEELWORKERS V. AMERICAN MFG. CO., 363 U.S. 564; UNITED STEELWORKERS V.
WARRIOR & GULF NAVIGATION CO., 363 U.S. 574; AND UNITED STEELWORKERS V.
ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593, DISTINGUISHED.  PP. 210
213. 

(D)  SECTION 301 OF THE LABOR MANAGEMENT RELATIONS ACT, 1947,
PRESENTS NO REAL CONFLICT WITH THE ANTI-INJUNCTION PROVISIONS OF THE
NORRIS-LAGUARDIA ACT.  PP. 213-215. 

SINCLAIR REFINING CO. V. ATKINSON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION THIS CASE PRESENTS IS WHETHER SEC. 301 OF THE TAFT
HARTLEY ACT, IN GIVING FEDERAL COURTS JURISDICTION OF SUITS BETWEEN
EMPLOYERS AND UNIONS FOR BREACH OF COLLECTIVE BARGAINING AGREEMENTS,
(FN1) IMPLIEDLY REPEALED SEC. 4 OF THE PRE-EXISTING NORRIS-LAGUARDIA
ACT, WHICH, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, BARRED FEDERAL
COURTS FROM ISSUING INJUNCTIONS "IN ANY CASE INVOLVING OR GROWING OUT
OF ANY LABOR DISPUTE."  (FN2) 

THE COMPLAINT HERE WAS FILED BY THE PETITIONER SINCLAIR REFINING
COMPANY AGAINST THE OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL
UNION AND LOCAL 7-210 OF THAT UNION AND ALLEGED:  THAT THE
INTERNATIONAL UNION, ACTING BY AND WITH THE AUTHORITY OF THE LOCAL
UNION AND ITS MEMBERS, SIGNED A WRITTEN COLLECTIVE BARGAINING CONTRACT
WITH SINCLAIR WHICH PROVIDED FOR COMPULSORY, FINAL AND BINDING
ARBITRATION OF "ANY DIFFERENCE REGARDING WAGES, HOURS OR WORKING
CONDITIONS BETWEEN THE PARTIES HERETO OR BETWEEN THE EMPLOYER AND AN
EMPLOYEE COVERED BY THIS WORKING AGREEMENT WHICH MIGHT ARISE WITHIN ANY
PLANT OR WITHIN ANY REGION OF OPERATIONS"; THAT THIS CONTRACT ALSO
INCLUDED EXPRESS PROVISIONS BY WHICH THE UNIONS AGREED THAT "THERE
SHALL BE NO SLOWDOWNS FOR ANY REASON WHATSOEVER" AND "NO STRIKES OR
WORK STOPPAGES  ...  FOR ANY CAUSE WHICH IS OR MAY BE THE SUBJECT OF A
GRIEVANCE"; AND THAT NOTWITHSTANDING THESE PROMISES IN THE COLLECTIVE
BARGAINING CONTRACT THE MEMBERS OF LOCAL 7-210 HAD, OVER A PERIOD OF
SOME 19 MONTHS, ENGAGED IN WORK STOPPAGES AND STRIKES ON NINE SEPARATE
OCCASIONS, EACH OF WHICH, THE COMPLAINT CHARGED, GREW OUT OF A
GRIEVANCE WHICH COULD HAVE BEEN SUBMITTED TO ARBITRATION UNDER THE
CONTRACT AND THEREFORE FELL SQUARELY WITHIN THE UNIONS' PROMISES NOT TO
STRIKE.  THIS PATTERN OF REPEATED, DELIBERATE VIOLATIONS OF THE
CONTRACT, SINCLAIR ALLEGED, INDICATED A COMPLETE DISREGARD ON THE PART
OF THE UNIONS FOR THEIR OBLIGATIONS UNDER THE CONTRACT AND A
PROBABILITY THAT THEY WOULD CONTINUE TO "SUBVERT THE PROVISIONS OF THE
CONTRACT" FORBIDDING STRIKES OVER GRIEVANCES IN THE FUTURE UNLESS THEY
WERE ENJOINED FROM DOING SO. IN THIS SITUATION, SINCLAIR CLAIMED, THERE
WAS NO ADEQUATE REMEDY AT LAW WHICH WOULD PROTECT ITS CONTRACTUAL
RIGHTS AND THE COURT SHOULD THEREFORE ENTER ORDERS ENJOINING THE UNIONS
AND THEIR AGENTS "PRELIMINARILY AT FIRST, AND THEREAFTER PERMANENTLY,
FROM AIDING, ABETTING, FOMENTING, ADVISING, PARTICIPATING IN,
RATIFYING, OR CONDONING ANY STRIKE, STOPPAGE OF WORK, SLOWDOWN OR ANY
OTHER DISRUPTION OF, OR INTERFERENCE WITH NORMAL EMPLOYMENT OR NORMAL
OPERATION OR PRODUCTION BY ANY EMPLOYEE WITHIN THE BARGAINING UNIT AT
PLAINTIFF'S EAST CHICAGO, INDIANA REFINERY COVERED BY THE CONTRACT
BETWEEN THE PARTIES DATED AUGUST 8, 1957, IN SUPPORT OF, OR BECAUSE OF,
ANY MATTER OR THING WHICH IS, OR COULD BE, THE SUBJECT OF A GRIEVANCE
UNDER THE GRIEVANCE PROCEDURE OF THE SAID CONTRACT, OR ANY EXTENSION
THEREOF, OR ANY OTHER CONTRACT BETWEEN THE PARTIES WHICH SHALL CONTAIN
LIKE OR SIMILAR PROVISIONS."  (FN3) 

THE UNIONS MOVED TO DISMISS THIS COMPLAINT ON THE GROUND THAT IT
SOUGHT INJUNCTIVE RELIEF WHICH UNITED STATES COURTS, BY VIRTUE OF THE
NORRIS-LAGUARDIA ACT, HAVE NO JURISDICTION TO GIVE.  THE DISTRICT COURT
FIRST DENIED THE MOTION, BUT SUBSEQUENTLY, UPON RECONSIDERATION AFTER
FULL ORAL ARGUMENT, VACATED ITS ORIGINAL ORDER AND GRANTED THE UNIONS'
MOTION TO DISMISS.  (FN4)  IN REACHING THIS CONCLUSION, THE DISTRICT
COURT REASONED THAT THE CONTROVERSY BETWEEN SINCLAIR AND THE UNIONS WAS
UNQUESTIONABLY A "LABOR DISPUTE" WITHIN THE MEANING OF THE NORRIS
LAGUARDIA ACT AND THAT THE COMPLAINT THEREFORE CAME WITHIN THE
PROSCRIPTION OF SEC. 4 OF THAT ACT WHICH "WITHDRAWS JURISDICTION FROM
THE FEDERAL COURTS TO ISSUE INJUNCTIONS TO PROHIBIT THE REFUSAL 'TO
PERFORM WORK OR REMAIN IN ANY RELATION OF EMPLOYMENT' IN CASES
INVOLVING ANY LABOR DISPUTE."  (FN5)  THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT AFFIRMED THE ORDER OF DISMISSAL FOR THE SAME REASONS. 
(FN6)  BECAUSE THIS DECISION PRESENTED A CONFLICT WITH THE DECISION ON
THIS SAME IMPORTANT QUESTION BY THE COURT OF APPEALS FOR THE TENTH
CIRCUIT,  (FN7)  WE GRANTED CERTIORARI.  (FN8) 

WE AGREE WITH THE COURTS BELOW THAT THIS CASE DOES INVOLVE A "LABOR
DISPUTE" WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT.  SECTION 13 OF
THAT ACT EXPRESSLY DEFINES A LABOR DISPUTE AS INCLUDING "ANY
CONTROVERSY CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING
THE ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING,
MAINTAINING, CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF
EMPLOYMENT, REGARDLESS OF WHETHER OR NOT THE DISPUTANTS STAND IN THE
PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE."  (FN9)  SINCLAIR'S OWN
COMPLAINT SHOWS QUITE PLAINLY THAT EACH OF THE ALLEGED NINE WORK
STOPPAGES AND STRIKES AROSE OUT OF A CONTROVERSY WHICH WAS
UNQUESTIONABLY WELL WITHIN THIS DEFINITION.  (FN10) 

NOR DOES THE CIRCUMSTANCE THAT THE ALLEGED WORK STOPPAGES AND STRIKES
MAY HAVE CONSTITUTED A BREACH OF A COLLECTIVE BARGAINING AGREEMENT
ALTER THE PLAIN FACT THAT A "LABOR DISPUTE" WITHIN THE MEANING OF THE
NORRIS-LAGUARDIA ACT IS INVOLVED.  ARGUMENTS TO THE CONTRARY PROCEED
FROM THE PREMISE THAT SEC. 2 OF THAT ACT, WHICH EXPRESSES THE PUBLIC
POLICY UPON WHICH THE SPECIFIC ANTIINJUNCTION PROVISIONS OF THE ACT
WERE BASED, CONTAINS LANGUAGE INDICATING THAT ONE PRIMARY CONCERN OF
CONGRESS WAS TO INSURE WORKERS THE RIGHT "TO EXERCISE ACTUAL LIBERTY OF
CONTRACT" AND TO PROTECT "CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING."  (FN11)  FROM THAT PREMISE, SINCLAIR ARGUES
THAT AN INTERPRETATION OF THE TERM "LABOR DISPUTE" SO AS TO INCLUDE A
DISPUTE ARISING OUT OF A UNION'S REFUSAL TO ABIDE BY THE TERMS OF A
COLLECTIVE AGREEMENT TO WHICH IT FREELY ACCEDED IS TO APPLY THE NORRIS
LAGUARDIA ACT IN A WAY THAT DEFEATS ONE OF THE PURPOSES FOR WHICH IT
WAS ENACTED.  BUT THIS ARGUMENT, THOUGH FORCEFULLY URGED BOTH HERE AND
IN MUCH CURRENT COMMENTARY ON THIS QUESTION, (FN12) RESTS MORE UPON
CONSIDERATIONS OF WHAT MANY COMMENTATORS THINK WOULD BE THE MORE
DESIRABLE INDUSTRIAL AND LABOR POLICY IN VIEW OF THEIR UNDERSTANDING AS
TO THE PREVAILING CIRCUMSTANCES OF CONTEMPORARY LABOR-MANAGEMENT
RELATIONS THAN UPON WHAT IS A CORRECT JUDICIAL INTERPRETATION OF THE
LANGUAGE OF THE ACT AS IT WAS WRITTEN BY CONGRESS. 

IN THE FIRST PLACE, EVEN THE GENERAL POLICY DECLARATIONS OF SEC. 2 OF
THE NORRIS-LAGUARDIA ACT, WHICH ARE THE FOUNDATION OF THIS WHOLE
ARGUMENT, DO NOT SUPPORT THE CONCLUSION URGED.  THAT SECTION DOES NOT
PURPORT TO LIMIT THE ACT TO THE PROTECTION OF COLLECTIVE BARGAINING
BUT, INSTEAD, EXPRESSLY RECOGNIZES THE NEED OF THE ANTI-INJUNCTION
PROVISIONS TO INSURE THE RIGHT OF WORKERS TO ENGAGE IN "CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION."  MOREOVER, THE LANGUAGE OF THE SPECIFIC PROVISIONS OF
THE ACT IS SO BROAD AND INCLUSIVE THAT IT LEAVES NOT THE SLIGHTEST
OPENING FOR READING IN ANY EXCEPTIONS BEYOND THOSE CLEARLY WRITTEN INTO
IT BY CONGRESS ITSELF.  (FN13)  WE CANNOT IGNORE THE PLAIN IMPORT OF A
CONGRESSIONAL ENACTMENT, PARTICULARLY ONE WHICH, AS WE HAVE REPEATEDLY
SAID, WAS DELIBERATELY DRAFTED IN THE BROADEST OF TERMS IN ORDER TO
AVOID THE DANGER THAT IT WOULD BE NARROWED BY JUDICIAL CONSTRUCTION. 
(FN14) 

SINCE WE HOLD THAT THE PRESENT CASE DOES GROW OUT OF A "LABOR
DISPUTE," THE INJUNCTION SOUGHT HERE RUNS SQUARELY COUNTER TO THE
PROSCRIPTION OF INJUNCTIONS AGAINST STRIKES CONTAINED IN SEC.  4(A) OF
THE NORRIS-LAGUARDIA ACT, TO THE PROSCRIPTION OF INJUNCTIONS AGAINST
PEACEFUL PICKETING CONTAINED IN SEC. 4(E) AND TO THE PROSCRIPTION OF
INJUNCTIONS PROHIBITING THE ADVISING OF SUCH ACTIVITIES CONTAINED IN
SEC. 4(I).  (FN15)  FOR THESE REASONS, THE NORRIS-LAGUARDIA ACT
DEPRIVES THE COURTS OF THE UNITED STATES OF JURISDICTION TO ENTER THAT
INJUNCTION UNLESS, AS IS CONTENDED HERE, THE SCOPE OF THAT ACT HAS BEEN
SO NARROWED BY THE SUBSEQUENT ENACTMENT OF SEC. 301 OF THE TAFT-HARTLEY
ACT THAT IT NO LONGER PROHIBITS EVEN THE INJUNCTIONS SPECIFICALLY
DESCRIBED IN SEC. 4 WHERE SUCH INJUNCTIONS ARE SOUGHT AS A REMEDY FOR
BREACH OF A COLLECTIVE BARGAINING AGREEMENT.  UPON CONSIDERATION, WE
CANNOT AGREE WITH THAT VIEW AND AGREE INSTEAD WITH THE VIEW EXPRESSED
BY THE COURTS BELOW AND SUPPORTED BY THE COURTS OF APPEALS FOR THE
FIRST AND SECOND CIRCUITS THAT SEC. 301 WAS NOT INTENDED TO HAVE ANY
SUCH PARTIALLY REPEALING EFFECT UPON SUCH A LONG-STANDING, CAREFULLY
THOUGHT OUT AND HIGHLY SIGNIFICANT PART OF THIS COUNTRY'S LABOR
LEGISLATION AS THE NORRIS-LAGUARDIA ACT.  (FN16) 

THE LANGUAGE OF SEC. 301 ITSELF SEEMS TO US ALMOST IF NOT ENTIRELY
CONCLUSIVE OF THIS QUESTION.  IT IS ESPECIALLY SIGNIFICANT THAT THE
IMAGINATION BE INTERPRETED TO CONSTITUTE AN EXPLICIT REPEAL OF THE ANTI
INJUNCTION PROVISIONS OF THE NORRIS-LAGUARDIA ACT IN VIEW OF THE FACT
THAT THE SECTION DOES EXPRESSLY REPEAL ANOTHER PROVISION OF THE NORRIS
LAGUARDIA ACT DEALING WITH UNION RESPONSIBILITY FOR THE ACTS OF
AGENTS.  (FN17  IF CONGRESS HAD INTENDED THAT SEC. 301 SUITS SHOULD
ALSO NOT BE SUBJECT TO THE ANTI-INJUNCTION PROVISIONS OF THE NORRIS
LAGUARDIA ACT, IT CERTAINLY SEEMS LIKELY THAT IT WOULD HAVE MADE ITS
INTENT KNOWN IN THIS SAME EXPRESS MANNER.  THAT IS INDEED PRECISELY
WHAT CONGRESS DID DO IN SEC. 101, AMENDING SEC. 10(H) OF THE NATIONAL
LABOR RELATIONS ACT, AND SEC. 208(B) OF THE TAFT-HARTLEY ACT, BY
PERMITTING INJUNCTIONS TO BE OBTAINED, NOT BY PRIVATE LITIGANTS, BUT
ONLY AT THE INSTANCE OF THE NATIONAL LABOR RELATIONS BOARD AND THE
ATTORNEY GENERAL, (FN18) AND IN SEC. 302(E), BY PERMITTING PRIVATE
LITIGANTS TO OBTAIN INJUNCTIONS IN ORDER TO PROTECT THE INTEGRITY OF
EMPLOYEES' COLLECTIVE BARGAINING REPRESENTATIVES IN CARRYING OUT THEIR
RESPONSIBILITIES.  (FN19)  THUS THE FAILURE OF CONGRESS TO INCLUDE A
PROVISION IN SEC.  301 EXPRESSLY REPEALING THE ANTI-INJUNCTION
PROVISIONS OF THE NORRIS-LAGUARDIA ACT MUST BE EVALUATED IN THE CONTEXT
OF A STATUTORY PATTERN THAT INDICATES NOT ONLY THAT CONGRESS WAS
COMPLETELY FAMILIAR WITH THOSE PROVISIONS BUT ALSO THAT IT REGARDED AN
EXPRESS DECLARATION OF INAPPLICABILITY AS THE NORMAL AND PROPER MANNER
OF REPEALING THEM IN SITUATIONS WHERE SUCH REPEAL SEEMED DESIRABLE. 

WHEN THE INQUIRY IS CARRIED BEYOND THE LANGUAGE OF SEC. 301 INTO ITS
LEGISLATIVE HISTORY, WHATEVER SMALL DOUBTS AS TO THE CONGRESSIONAL
PURPOSE COULD HAVE SURVIVED CONSIDERATION OF THE BARE LANGUAGE OF THE
SEC.  301 SHOWS THAT CONGRESS ACTUALLY CONSIDERED THE ADVISABILITY OF
REPEALING THE NORRIS-LAGUARDIA ACT INSOFAR AS SUITS BASED UPON BREACH
OF COLLECTIVE BARGAINING AGREEMENTS ARE CONCERNED AND DELIBERTELY CHOSE
NOT TO DO SO. (FN20)  THE SECTION AS EVENTUALLY ENACTED WAS THE PRODUCT
OF A CONFERENCE BETWEEN COMMITTEES OF THE HOUSE AND SENATE, SELECTED TO
RESOLVE THE DIFFERENCES BETWEEN CONFLICTING PROVISIONS OF THE
RESPECTIVE BILLS EACH HAD PASSED.  PRIOR TO THIS CONFERENCE, THE HOUSE
BILL HAD PROVIDED FOR FEDERAL JURISDICTION OF SUITS FOR BREACH OF
COLLECTIVE BARGAINING CONTRACTS AND HAD EXPRESSLY DECLARED THAT THE
NORRIS-LAGUARDIA ACT'S ANTI-INJUNCTION PROVISIONS WOULD NOT APPLY TO
SUCH SUITS.  (FN21)  THE BILL PASSED BY THE SENATE, LIKE THE HOUSE
BILL, GRANTED FEDERAL COURTS JURISDICTION OVER SUITS FOR BREACH OF SUCH
AGREEMENTS BUT IT DID NOT, LIKE THE HOUSE BILL, MAKE THE NORRIS
LAGUARDIA ACT'S PROHIBITION AGAINST INJUNCTIONS INAPPLICABLE TO SUCH
SUITS.  (FN22)  INSTEAD IT MADE BREACH OF A COLLECTIVE AGREEMENT AN
UNFAIR LABOR PRACTICE.  (FN23)  UNDER THE SENATE VERSION, THEREFORE, A
BREACH OF A COLLECTIVE BARGAINING AGREEMENT, LIKE ANY UNFAIR LABOR
PRACTICE, COULD HAVE BEEN ENJOINED BY A SUIT BROUGHT BY THE NATIONAL
LABOR RELATIONS BOARD, (FN24) BUT NO PROVISION OF THE SENATE VERSION
WOULD HAVE PERMITTED THE ISSUANCE OF AN INJUNCTION IN A LABOR DISPUTE
AT THE SUIT OF PRIVATE PARTY.  AT THE CONFERENCE THE PROVISION OF THE
HOUSE BILL EXPRESSLY REPEALING THE ANTI-INJUNCTION PROVISIONS OF THE
NORRIS-LAGUARDIA ACT, AS WELL AS THE PROVISION OF THE BILL PASSED BY
THE SENATE DECLARING THE BREACH OF A COLLECTIVE AGREEMENT TO BE AN
UNFAIR LABOR PRACTICE, WAS DROPPED AND NEVER BECAME LAW.  INSTEAD, THE
CONFEREES, AS INDICATED BY THE PROVISION WHICH CAME OUT OF THE
CONFERENCE AND EVENTUALLY BECAME SEC. 301, AGREED THAT SUITS FOR BREACH
OF SUCH AGREEMENTS SHOULD REMAIN WHOLLY PRIVATE AND "BE LEFT TO THE
USUAL PROCESSES OF THE LAW" (FN25) AND THAT, IN VIEW OF THE FACT THAT
THESE SUITS WOULD BE AT THE INSTANCE OF PRIVATE PARTIES RATHER THAN AT
THE INSTANCE OF THE LABOR BOARD, NO CHANGE IN THE EXISTING ANTI
INJUNCTION PROVISIONS OF THE NORRIS-LAGUARDIA ACT SHOULD BE MADE.  THE
HOUSE CONFERENCE REPORT EXPRESSLY RECOGNIZED THAT THE HOUSE PROVISION
FOR REPEAL IN CONTRACT ACTIONS OF THE ANTI-INJUNCTION PROHIBITIONS OF
THE NORRIS-LAGUARDIA ACT HAD BEEN ELIMINATED IN CONFERENCE:    "SECTION
302(E) OF THE HOUSE BILL MADE THE NORRIS-LAGUARDIA ACT INAPPLICABLE IN
ACTIONS AND PROCEEDINGS INVOLVING VIOLATIONS OF AGREEMENTS BETWEEN AN
EMPLOYER AND A LABOR ORGANIZATION.  ONLY PART OF THIS PROVISION IS
INCLUDED IN THE CONFERENCE AGREEMENT.  SECTION 6 OF THE NORRIS
LAGUARDIA ACT PROVIDES THAT NO EMPLOYER OR LABOR ORGANIZATION
PARTICIPATING OR INTERESTED IN A LABOR DISPUTE SHALL BE HELD
RESPONSIBLE FOR THE UNLAWFUL ACTS OF THEIR AGENTS EXCEPT UPON CLEAR
PROOF OF ACTUAL AUTHORIZATION OF SUCH ACTS, OR RATIFICATION OF SUCH
ACTS AFTER ACTUAL KNOWLEDGE THEREOF.  THIS PROVISION IN THE NORRIS
LAGUARDIA ACT WAS MADE INAPPLICABLE UNDER THE HOUSE BILL.  SECTION
301(E) OF THE CONFERENCE AGREEMENT PROVIDES THAT FOR THE PURPOSES OF
ANOTHER SO AS TO MAKE SUCH OTHER PERSON RESPONSIBLE FOR HIS ACTIONS,
THE QUESTION OF WHETHER THE SPECIFIC ACTS PERFORMED WERE ACTUALLY
AUTHORIZED OR SUBSEQUENTLY RATIFIED SHALL NOT BE CONTROLLING."  (FN26) 

AND SENATOR TAFT, CHAIRMAN OF THE CONFERENCE COMMITTEE AND ONE OF THE
AUTHORS OF THIS LEGISLATION THAT BORE HIS NAME, WAS NO LESS EXPLICIT IN
EXPLAINING THE RESULTS OF THE CONFERENCE TO THE SENATE: "THE CONFEREES
...  REJECTED THE REPEAL OF THE NORRIS-LAGUARDIA ACT."  (FN27) 

WE CANNOT ACCEPT THE STARTLING ARGUMENT MADE HERE THAT EVEN THOUGH
CONGRESS DID NOT ITSELF WANT TO REPEAL THE NORRIS-LAGUARDIA ACT, IT WAS
WILLING TO CONFER A POWER UPON THE COURTS TO "ACCOMMODATE" THAT ACT OUT
OF EXISTENCE WHENEVER THEY MIGHT FIND IT EXPEDIENT TO DO SO IN
FURTHERANCE OF SOME POLICY THEY HAD FASHIONED UNDER SEC. 301.  THE
UNEQUIVOCAL STATEMENTS IN THE HOUSE CONFERENCE REPORT AND BY SENATOR
TAFT ON THE FLOOR OF THE SENATE COULD ONLY HAVE BEEN ACCEPTED BY THE
CONGRESSMEN AND SENATORS WHO READ OR HEARD THEM AS ASSURANCES THAT THEY
COULD VOTE IN FAVOR OF SEC. 301 WITHOUT ALTERING, REDUCING OR IMPAIRING
IN ANY MANNER THE ANTI-INJUNCTION PROVISIONS OF THE NORRIS-LAGUARDIA
ACT.  THIS IS PARTICULARLY TRUE OF THE STATEMENT OF SENATOR TAFT, A MAN
GENERALLY REGARDED IN THE SENATE AS A VERY ABLE LAWYER AND ONE UPON
WHOM THE SENATE COULD RELY FOR ACCURATE, FORTHRIGHT EXPLANATIONS OF
LEGISLATION WITH WHICH HE WAS CONNECTED.  SENATOR TAFT WAS OF COURSE
ENTIRELY FAMILIAR WITH THE PROHIBITIONS OF THE NORRIS-LAGUARDIA ACT AND
THE IMPACT THOSE PROHIBITIONS WOULD HAVE UPON THE ENFORCEMENT UNDER
SEC. 301 OF ALL RELATED CONTRACTUAL PROVISIONS, INCLUDING CONTRACTUAL
PROVISIONS DEALING WITH ARBITRATION.  IF, AS THIS ARGUMENT SUGGESTS,
THE INTENTION OF CONGRESS IN ENACTING SEC. 301 WAS TO CLEAR THE WAY FOR
JUDICIAL OBLITERATION OF THAT ACT UNDER THE SOFT EUPHEMISM OF
"ACCOMMODATION," SENATOR TAFT'S FLAT STATEMENT THAT THE CONFERENCE HAD
REJECTED THE REPAL OF THE NORRIS-LAGUARDIA ACT COULD ONLY BE REGARDED
AS DISINGENUOUS.  WE CANNOT IMPUTE ANY SUCH INTENTION TO HIM. 

MOREOVER, WE THINK THAT THE IDEA THAT SEC. 301 SANCTIONS PIECEMEAL
JUDICIAL REPEAL OF THE NORRIS-LAGUARDIA ACT REQUIRES ACCEPTANCE OF A
WHOLLY UNREALISTIC VIEW OF THE MANNER IN WHICH CONGRESS HANDLES ITS
BUSINESS.  THE QUESTION OF WHETHER EXISTING STATUTES SHOULD BE
CONTINUED IN FORCE OR REPEALED IS, UNDER OUR SYSTEM OF GOVERNMENT, ONE
WHICH IS WHOLLY WITHIN THE DOMAIN OF CONGRESS.  WHEN THE REPEAL OF A
HIGHLY SIGNIFICANT LAW IS URGED UPON THAT BODY AND THAT REPEAL IS
REJECTED AFTER CAREFUL CONSIDERATION AND DISCUSSION, THE NORMAL
EXPECTATION IS THAT COURTS WILL BE FAITHFUL TO THEIR TRUST AND ABIDE BY
THAT DECISION.  THIS IS ESPECIALLY SO WHERE THE FACT OF THE CONTROVERSY
OVER REPEAL AND THE RESOLUTION OF THAT CONTROVERSY IN CONGRESS PLAINLY
APPEARS IN THE FORMAL LEGISLATIVE HISTORY OF ITS PROCEEDINGS.  (FN28)
INDEED, NOT A SINGLE INSTANCE HAS BEEN CALLED TO OUR ATTENTION IN WHICH
A CAREFULLY CONSIDERED AND REJECTED PROPOSAL FOR REPEAL HAS BEEN
REVIVED AND ADOPTED BY THIS COURT UNDER THE GUISE OF "ACCOMMODATION" OR
ANY OTHER PSEUDONYM. 

NOR HAVE WE FOUND ANYTHING ELSE IN THE PREVIOUS DECISIONS OF THIS
COURT THAT WOULD INDICATE THAT WE SHOULD DISREGARD ALL THIS
OVERWHELMING EVIDENCE OF A CONGRESSIONAL INTENT TO RETAIN COMPLETELY
INTACT THE ANTI-INJUNCTION PROHIBITIONS OF THE NORRIS-LAGUARDIA ACT IN
SUITS BROUGHT UNDER SEC. 301.   BROTHERHOOD OF RAILROAD TRAINMEN V.
CHICAGO RIVER AND INDIANA R. CO., (FN29) UPON WHICH SINCLAIR PLACES ITS
PRIMARY RELIANCE, IS DISTINGUISHABLE ON SEVERAL GROUNDS.  THERE WE WERE
DEALING WITH A STRIKE CALLED BY THE UNION IN DEFIANCE OF AN AFFIRMATIVE
DUTY, IMPOSED UPON THE UNION BY THE RAILWAY LABOR ACT ITSELF,
COMPELLING UNIONS TO SETTLE DISPUTES AS TO THE INTERPRETATION OF AN
EXISTING COLLECTIVE BARGAINING AGREEMENT, NOT BY COLLECTIVE UNION
PRESSURES ON THE RAILROAD BUT BY SUBMITTING THEM TO THE RAILROAD
ADJUSTMENT BOARD AS THE EXCLUSIVE MEANS OF FINAL DETERMINATION OF SUCH
"MINOR" DISPUTES.  (FN30)  HERE, ON THE OTHER HAND, WE ARE DEALING WITH
A SUIT UNDER A QUITE DIFFERENT LAW WHICH DOES NOT ITSELF COMPEL A
PARTICULAR, EXCLUSIVE METHOD FOR SETTLING DISPUTES NOR IMPOSE ANY
REQUIREMENT, EITHER UPON UNIONS OR EMPLOYERS, OR UPON THE COURTS, THAT
IS IN ANY WAY INCONSISTENT WITH A CONTINUATION OF THE NORRIS-LAGUARDIA
ACT'S PROSCRIPTION OF FEDERAL LABOR INJUNCTIONS AGAINST STRIKES AND
PEACEFUL PICKETING.  IN ADDITION, IN CHICAGO RIVER WE WERE DEALING WITH
A STATUTE THAT HAD A FAR DIFFERENT LEGISLATIVE HISTORY THAN THE ONE NOW
BEFORE US.  THUS THERE WAS NO INDICATION IN THE LEGISLATIVE HISTORY OF
THE RAILWAY LABOR ACT, AS THERE IS IN THE HISTORY OF SEC. 301, THAT
CONGRESS HAD, AFTER FULL DEBATE AND CAREFUL CONSIDERATION BY BOTH
HOUSES AND IN JOINT CONFERENCE, SPECIFICALLY REJECTED PROPOSALS TO MAKE
THE PROHIBITIONS OF THE NORRIS-LAGUARDIA ACT INAPPLICABLE.  INDEED, THE
COURT WAS ABLE TO CONCLUDE IN CHICAGO RIVER "THAT THERE WAS GENERAL
UNDERSTANDING BETWEEN BOTH THE SUPPORTERS AND THE OPPONENTS OF THE 1934
AMENDMENT THAT THE PROVISIONS DEALING WITH THE ADJUSTMENT BOARD WERE TO
BE CONSIDERED AS COMPULSORY ARBITRATION IN THIS LIMITED FIELD."  (FN31)
AND CERTAINLY NO ONE COULD CONTEND THAT SEC. 301 WAS INTENDED TO SET
UP ANY SUCH SYSTEM OF "COMPULSORY ARBITRATION" AS THE EXCLUSIVE METHOD
FOR SETTLING GRIEVANCES UNDER THE TAFT-HARTLEY ACT. 

TEXTILE WORKERS UNION V. LINCOLN MILLS, (FN32) UPON WHICH SOME LESSER
RELIANCE IS PLACED, IS EQUALLY DISTINGUISHABLE.  THERE THE COURT HELD
MERELY THAT IT DID NOT VIOLATE THE ANTI-INJUNCTION PROVISIONS OF THE
NORRIS-LAGUARDIA ACT TO COMPEL THE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT TO SUBMIT A DISPUTE WHICH HAD ARISEN UNDER THAT AGREEMENT TO
ARBITRATION WHERE THE AGREEMENT ITSELF REQUIRED ARBITRATION OF THE
DISPUTE.  IN UPHOLDING THE JURISDICTION OF THE FEDERAL COURTS TO ISSUE
SUCH AN ORDER AGAINST A CHALLENGE BASED UPON THE NORRIS-LAGUARDIA ACT,
THE COURT POINTED OUT THAT THE EQUITABLE RELIEF GRANTED IN THAT CASE -
A MANDATORY INJUNCTION TO CARRY OUT AN AGREEMENT TO ARBITRATE - DID NOT
ENJOIN ANY ONE OF THE KINDS OF CONDUCT WHICH THE SPECIFIC PROHIBITIONS
OF THE NORRIS-LAGUARDIA ACT WITHDREW FROM THE INJUNCTIVE POWERS OF
UNITED STATES COURTS.  (FN33)  AN INJUNCTION AGAINST WORK STOPPAGES,
PEACEFUL PICKETING OR THE NONFRAUDULENT ENCOURAGING OF THOSE ACTIVITIES
WOULD, HOWEVER, PROHIBIT THE PRECISE KINDS OF CONDUCT WHICH SUBSECTIONS
(A), (E) AND (I) OF SEC. 4 OF THE NORRIS-LAGUARDIA ACT UNEQUIVOCALLY
SAY CANNOT BE PROHIBITED.  (FN34) 

NOR CAN WE AGREE WITH THE ARGUMENT MADE IN THIS COURT THAT THE
DECISION IN LINCOLN MILLS, AS IMPLEMENTED BY THE SUBSEQUENT DECISIONS
IN UNITED STEELWORKERS V. AMERICAN MANUFACTURING CO., (FN35) UNITED
STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., (FN36) AND UNITED
STEELWORKERS V. ENTERPRISE WHEEL & CAR CORP., (FN37) REQUIRES US TO
RECONSIDER AND OVERRULE THE ACTION OF CONGRESS IN REFUSING TO REPEAL OR
MODIFY THE CONTROLLING COMMANDS OF THE NORRIS-LAGUARDIA ACT.  TO THE
EXTENT THAT THOSE CASES RELIED UPON THE PROPOSITION THAT THE
ARBITRATION PROCESS IN "A KINGPIN OF FEDERAL LABOR POLICY," WE THINK
THAT PROPOSITION WAS FOUNDED NOT UPON THE POLICY PREDILECTIONS OF THIS
COURT BUT UPON WHAT CONGRESS SAID AND DID WHEN IT ENACTED SEC. 301. 
CERTAINLY WE CANNOT ACCEPT ANY SUGGESTION WHICH WOULD UNDERMINE THOSE
CASES BY IMPLYING THAT THE COURT WENT BEYOND ITS PROPER POWER AND
ITSELF "FORGED  ...  A KINGPIN OF FEDERAL LABOR POLICY" INCONSISTENT
WITH THAT SECTION AND ITS PURPOSE.  CONSEQUENTLY, WE DO NOT SEE HOW
CASES IMPLEMENTING THE PURPOSE OF SEC. 301 CAN BE SAID TO HAVE FREED
THIS COURT FROM ITS DUTY TO GIVE EFFECT TO THE PLAINLY EXPRESSED
CONGRESSIONAL PURPOSE WITH REGARD TO THE CONTINUED APPLICATION OF THE
ANTI-INJUNCTION PROVISIONS OF THE NORRIS-LAGUARDIA ACT.  THE ARGUMENT
TO THE CONTRARY SEEMS TO REST UPON THE NOTION THAT INJUNCTIONS AGAINST
PEACEFUL STRIKES ARE NECESSARY TO MAKE THE ARBITRATION PROCESS
EFFECTIVE.  BUT WHATEVER MIGHT BE SAID ABOUT THE MERITS OF THIS
ARGUMENT, CONGRESS HAS ITSELF REJECTED IT.  IN DOING SO, IT SET THE
LIMIT TO WHICH IT WAS WILLING TO GO IN PERMITTING COURTS TO EFFECTUATE
THE CONGRESSIONAL POLICY FAVORING ARBITRATION AND IT IS NOT THIS
COURT'S BUSINESS TO REVIEW THE WISDOM OF THAT DECISION. 

THE PLAIN FACT IS THAT SEC. 301, AS PASSED BY CONGRESS, PRESENTS NO
CONFLICT AT ALL WITH THE ANTI-INJUNCTION PROVISIONS OF THE NORRIS
LAGUARDIA ACT.  OBEDIENCE TO THE CONGRESSIONAL COMMANDS OF THE NORRIS
LAGUARDIA ACT DOES NOT DIRECTLY AFFECT THE "CONGRESSIONAL POLICY IN
FAVOR OF THE ENFORCEMENT OF AGREEMENTS TO ARBITRATE GRIEVANCE DISPUTES"
(FN38) AT ALL FOR IT DOES NOT IMPAIR THE RIGHT OF AN EMPLOYER TO OBTAIN
AN ORDER COMPELLING ARBITRATION OF ANY DISPUTE THAT MAY HAVE BEEN MADE
ARBITRABLE BY THE PROVISIONS OF AN EFFECTIVE COLLECTIVE BARGAINING
AGREEMENT.  AT THE MOST, WHAT IS INVOLVED IS THE QUESTION OF WHETHER
THE EMPLOYER IS TO BE ALLOWED TO ENJOY THE BENEFITS OF AN INJUNCTION
ALONG WITH THE RIGHT WHICH CONGRESS GAVE HIM IN SEC. 301 TO SUE FOR
BREACH OF A COLLECTIVE AGREEMENT.  AND AS WE HAVE ALREADY POINTED OUT,
CONGRESS WAS NOT WILLING TO INSURE THAT ENJOYMENT TO AN EMPLOYER AT THE
COST OF PUTTING THE FEDERAL COURTS BACK INTO THE BUSINESS OF ENJOINING
STRIKES AND OTHER RELATED PEACEFUL UNION ACTIVITIES. 

IT IS DOUBTLESS TRUE, AS ARGUED, THAT THE RIGHT TO SUE WHICH SEC. 301
GIVES EMPLOYERS WOULD BE WORTH MORE TO THEM IF THEY COULD ALSO GET A
FEDERAL COURT INJUNCTION TO BAR A BREACH OF THEIR COLLECTIVE BARGAINING
AGREEMENTS.  STRONG ARGUMENTS ARE MADE TO US THAT IT IS HIGHLY
DESIRABLE THAT THE NORRIS-LAGUARDIA ACT BE CHANGED IN THE PUBLIC
INTEREST.  IF THAT IS SO, CONGRESS ITSELF MIGHT SEE FIT TO CHANGE THAT
LAW AND REPEAL THE ANTI-INJUNCTION PROVISIONS OF THE ACT INSOFAR AS
SUITS FOR VIOLATION OF COLLECTIVE AGREEMENTS ARE CONCERNED, AS THE
HOUSE BILL UNDER CONSIDERATION ORIGINALLY PROVIDED.  IT MIGHT, ON THE
OTHER HAND, DECIDE THAT IF INJUNCTIONS ARE NECESSARY, THE WHOLE IDEA OF
ENFORCEMENT OF THESE AGREEMENTS BY PRIVATE SUITS SHOULD BE DISCARDED IN
FAVOR OF ENFORCEMENT THROUGH THE ADMINISTRATIVE MACHINERY OF THE LABOR
BOARD, AS SENATOR TAFT PROVIDED IN HIS SENATE BILL.  OR IT MIGHT DECIDE
THAT NEITHER OF THESE METHODS IS ENTIRELY SATISFACTORY AND TURN INSTEAD
TO A COMPLETELY NEW APPROACH.  THE QUESTION OF WHAT CHANGE, IF ANY,
SHOULD BE MADE IN THE EXISTING LAW IS ONE OF LEGISLATIVE POLICY
PROPERLY WITHIN THE EXCLUSIVE DOMAIN OF CONGRESS - IT IS A QUESTION FOR
LAWMAKERS, NOT LAW INTERPRETERS.  OUR TASK IS THE MORE LIMITED ONE OF
INTERPRETING THE LAW AS IT NOW STANDS.  IN DEALING WITH PROBLEMS OF
INTERPRETATION AND APPLICATION OF FEDERAL STATUTES, WE HAVE NO POWER TO
CHANGE DELIBERATE CHOICES OF LEGISLATIVE POLICY THAT CONGRESS HAS MADE
WITHIN ITS CONSTITUTIONAL POWERS.  WHERE CONGRESSIONAL INTENT IS
DISCERNIBLE - AND HERE IT SEEMS CRYSTAL CLEAR - WE MUST GIVE EFFECT TO
THAT INTENT.  (FN39) 

THE DISTRICT COURT WAS CORRECT IN DISMISSING COUNT 3 OF PETITIONER'S
COMPLAINT FOR LACK OF JURISDICTION UNDER THE NORRIS-LAGUARDIA ACT.  THE
JUDGMENT OF THE COURT OF APPEALS AFFIRMING THAT ORDER IS THEREFORE
AFFIRMED. 

FN1  "SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THIS CHAPTER, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES."  61 STAT. 156, 29 U.S.C. SEC. 185(A). 

FN2  "NO COURT OF THE UNITED STATES SHALL HAVE JURISDICTION TO ISSUE
ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT INJUNCTION IN ANY CASE
INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE TO PROHIBIT ANY PERSON OR
PERSONS PARTICIPATING OR INTERESTED IN SUCH DISPUTE (AS THESE TERMS ARE
HEREIN DEFINED) FROM DOING, WHETHER SINGLY OR IN CONCERT, ANY OF THE
FOLLOWING ACTS: 

"(A)  CEASING OR REFUSING TO PERFORM ANY WORK OR TO REMAIN IN ANY
RELATION OF EMPLOYMENT: 

     *         *         *         *         * 

"(E)  GIVING PUBLICITY TO THE EXISTENCE OF, OR THE FACTS INVOLVED IN,
ANY LABOR DISPUTE, WHETHER BY ADVERTISING, SPEAKING, PATROLLING, OR BY
ANY OTHER METHOD NOT INVOLVING FRAUD OR VIOLENCE: 

     *         *         *         *         * 

"(I)  ADVISING, URGING, OR OTHERWISE CAUSING OR INDUCING WITHOUT
FRAUD OR VIOLENCE THE ACTS HERETOFORE SPECIFIED  ...  ."  47 STAT. 70,
29 U.S.C. SEC. 104. 

FN3  THE SUIT FILED BY SINCLAIR WAS IN THREE COUNTS, ONLY ONE OF
WHICH, COUNT 3, IS INVOLVED IN THIS CASE.  COUNTS 1 AND 2, UPON WHICH
SINCLAIR PREVAILED BELOW, ARE ALSO BEFORE THE COURT IN NO. 430.  SEE
ATKINSON V. SINCLAIR REFINING CO., POST, P. 238, DECIDED TODAY. 

FN4  187 F. SUPP. 225. 

FN5  ID., AT 228. 

FN6  290 F.2D 312. 

FN7  CHAUFFEURS, TEAMSTERS & HELPERS LOCAL NO. 795 V. YELLOW TRANSIT
FREIGHT LINES, 282 F.2D 345.  BOTH THE FIRST AND THE SECOND CIRCUITS
HAVE ALSO CONSIDERED THIS QUESTION AND BOTH HAVE TAKEN THE SAME
POSITION AS THAT TAKEN BELOW.  SEE W.L. MEAD, INC., V. TEAMSTERS LOCAL
NO. 25, 217 F.2D 6; ALCOA S.S. CO. V. MCMAHON, 173 F.2D 567; IN RE
THIRD AVE. TRANSIT CORP., 192 F.2D 971; A.H. BULL STEAMSHIP CO. V.
SEAFARERS' INTERNATIONAL UNION, 250 F.2D 326.    FN8  368 U.S. 937. 

FN9  47 STAT. 73, 29 U.S.C. SEC. 113. 

FN10  THE ALLEGATIONS OF THE COMPLAINT WITH REGARD TO THE NINE
OCCURRENCES IN QUESTION ARE AS FOLLOWS: 

"(A)  ON OR ABOUT JULY 1, 1957, SIX EMPLOYEES ASSIGNED TO THE #810
CRUDE STILL STOPPED WORK IN SUPPORT OF AN ASSERTED GRIEVANCE INVOLVING
THE REMOVAL OF SHIFT MACHINISTS FROM THE #810 STILL AREA;

"(B)  ON OR ABOUT SEPTEMBER 17, 1957, ALL EMPLOYEES EMPLOYED IN THE
MASON DEPARTMENT REFUSED TO WORK ON ANY SHIFT DURING THE ENTIRE DAY;
THE ENTIRE MECHANICAL DEPARTMENT REFUSED TO WORK FROM APPROXIMATELY
NOON UNTIL MIDNIGHT; THE EMPLOYEES OF THE BARREL HOUSE REFUSED TO WORK
FROM THE MIDDLE OF THE AFTERNOON UNTIL MIDNIGHT; A PICKET LINE WAS
CREATED WHICH PREVENTED OPERATORS FROM REPORTING TO WORK ON THE 4:00
P.M. TO MIDNIGHT SHIFT, ALL IN SUPPORT OF AN ASSERTED GRIEVANCE ON
BEHALF OF FIVE APPRENTICE MASONS FOR WHOM INSUFFICIENT WORK WAS
AVAILABLE TO PERMIT THEIR RETENTION AT CRAFT LEVELS. 

"(C)  ON OR ABOUT MARCH 28, 1958, APPROXIMATELY 73 EMPLOYEES IN THE
RIGGING DEPARTMENT REFUSED TO WORK FOR APPROXIMATELY ONE HOUR IN
SUPPORT OF AN ASSERTED GRIEVANCE THAT RIGGERS WERE ENTITLED TO DO
CERTAIN WORK ALONG WITH MACHINISTS. 

"(D)  ON OR ABOUT MAY 20, 1958, APPROXIMATELY 24 EMPLOYEES IN THE
RIGGING DEPARTMENT REFUSED TO WORK FOR 1 3/4 HOURS IN SUPPORT OF AN
ASSERTED GRIEVANCE THAT RIGGERS WERE ENTITLED TO DO CERTAIN WORK ALONG
WITH BOILERMAKERS. 

"(E)  ON OR ABOUT SEPTEMBER 11, 1958, APPROXIMATELY 24 EMPLOYEES IN
THE RIGGING DEARTMENT REFUSED TO WORK FOR APPROXIMATELY TWO HOURS IN
SUPPORT OF AN ASSERTED GRIEVANCE THAT PIPEFITTERS COULD NOT DISMANTLE
AND REMOVE CERTAIN PIPE COILS WITHOUT RIGGERS BEING EMPLOYED ON THE
SAID WORK ALSO. 

"(F)  ON OR ABOUT OCTOBER 6 AND 7, 1958, APPROXIMATELY 43 EMPLOYEES
IN THE CRANES AND TRUCKS DEPARTMENT REFUSED TO WORK FOR APPROXIMATELY
EIGHT HOURS IN SUPPORT OF AN ASSERTED GRIEVANCE CONCERNING EMPLOYMENT
BY THE COMPANY OF AN INDEPENDENT CONTRACTOR TO OPERATE A CONTRACTOR
OWNED CRANE. 

"(G)  ON OR ABOUT NOVEMBER 19, 1958, APPROXIMATELY 71 EMPLOYEES
REFUSED TO WORK FOR APPROXIMATELY 3 3/4 HOURS IN THE BOILERMAKING
DEPARTMENT IN SUPPORT OF AN ASSERTED GRIEVANCE THAT BURNERS AND RIGGERS
WOULD NOT DISMANTLE A TANK ROOF WITHOUT EMPLOYMENT OF BOILERMAKERS AT
THE SAID TASK. 

"(H)  ON OR ABOUT NOVEMBER 21, 1958, IN FURTHER PURSUANCE OF THE
ASSERTED GRIEVANCE REFERRED TO IN SUBPARAGRAPH (G) PRECEDING, THE MAIN
ENTRANCE TO THE PLANT WAS PICKETED AND BARRICADED, THEREBY PREVENTING
APPROXIMATELY 800 EMPLOYEES FROM REPORTING FOR WORK FOR AN ENTIRE
SHIFT. 

"(I)  ON OR ABOUT FEBRUARY 13 AND 14, 1959, APPROXIMATELY 999
EMPLOYEES WERE INDUCED TO STOP WORK OVER AN ASSERTED GRIEVANCE ON
BEHALF OF THREE RIGGERS THAT THEY SHOULD NOT HAVE BEEN DOCKED AN
AGGREGATE OF $2.19 IN THEIR PAY FOR HAVING REPORTED LATE TO WORK." 

FN11  "IN THE INTERPRETATION OF THIS ACT AND IN DETERMINING THE
JURISDICTION AND AUTHORITY OF THE COURTS OF THE UNITED STATES, AS SUCH
JURISDICTION AND AUTHORITY ARE HEREIN DEFINED AND LIMITED, THE PUBLIC
POLICY OF THE UNITED STATES IS HEREBY DECLARED AS FOLLOWS: 

"WHEREAS UNDER PREVAILING ECONOMIC CONDITIONS, DEVELOPED WITH THE AID
OF GOVERNMENTAL AUTHORITY FOR OWNERS OF PROPERTY TO ORGANIZE IN THE
CORPORATE AND OTHER FORMS OF OWNERSHIP ASSOCIATION, THE INDIVIDUAL
UNORGANIZED WORKER IS COMMONLY HELPLESS TO EXERCISE ACTUAL LIBERTY OF
CONTRACT AND TO PROTECT HIS FREEDOM OF LABOR, AND THEREBY TO OBTAIN
ACCEPTABLE TERMS AND CONDITIONS OF EMPLOYMENT, WHEREFORE, THOUGH HE
SHOULD BE FREE TO DECLINE TO ASSOCIATE WITH HIS FELLOWS, IT IS
NECESSARY THAT HE HAVE FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION,
AND DESIGNATION OF REPRESENTATIVES OF HIS OWN CHOOSING, TO NEGOTIATE
THE TERMS AND CONDITIONS OF HIS EMPLOYMENT, AND THAT HE SHALL BE FREE
FROM THE INTERFERENCE, RESTRAINT, OR COERCION OF EMPLOYERS OF LABOR, OR
THEIR AGENTS, IN THE DESIGNATION OF SUCH REPRESENTATIVES OR IN SELF
ORGANIZATION OR IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION; THEREFORE, THE
FOLLOWING DEFINITIONS OF, AND LIMITATIONS UPON, THE JURISDICTION AND
AUTHORITY OF THE COURTS OF THE UNITED STATES ARE ENACTED."  47 STAT.
70, 29 U.S.C. SEC. 102. 

FN12  ONE OF THE MOST FORTHRIGHT ARGUMENTS FOR JUDICIAL RE-EVALUATION
OF THE WISDOM OF THE ANTI-INJUNCTION PROVISIONS OF THE NORRIS-LAGUARDIA
ACT AND JUDICIAL RATHER THAN CONGRESSIONAL REVISION OF THE MEANING AND
SCOPE OF THESE PROVISIONS AS APPLIED TO CONDUCT IN BREACH OF A
COLLECTIVE BARGAINING AGREEMENT IS PRESENTED IN GREGORY, THE LAW OF THE
COLLECTIVE AGREEMENT, 57 MICH. L. REV. 635.  THAT AUTHOR, IN URGING
THAT A STRIKE IN BREACH OF A COLLECTIVE AGREEMENT SHOULD NOT NOW BE
HELD TO INVOLVE OR GROW OUT OF A "LABOR DISPUTE" WITHIN THE MEANING OF
THE NORRIS-LAGUARDIA ACT, STATES: "AFTER ALL, 1932 WAS A LONG TIME AGO
AND CONDITIONS HAVE CHANGED DRASTICALLY.  JUDGES WHO STILL CONFUSE
VIOLATIONS OF COLLECTIVE AGREEMENTS WITH SEC. 13 LABOR DISPUTES AND
SEC. 4 CONDUCT HAVE, IN MY OPINION, LOST CONTACT WITH REALITY.  THE
PASSAGE OF TIME HAS OPERATED AS A FUNCTION OF MANY OTHER TYPES OF
JUDICIAL OUTPUT AT THE HIGHEST LEVEL.  I DO NOT SEE WHY IT SHOULD NOT
DO SO IN THIS INSTANCE, AS WELL."  ID., AT 645-646, N. 39.  SEE ALSO
STEWART, NO-STRIKE CLAUSES IN THE FEDERAL COURTS, 59 MICH. L. REV. 673,
ESPECIALLY AT 683; RICE, A PARADOX OF OUR NATIONAL LABOR LAW, 34 MARQ. 
L. REV. 233. 

FN13  THUS WE CONCLUDE HERE PRECISELY AS WE DID IN LAUF V. E.G.
SHINNER & CO., 303 U.S. 323, 330:  WE FIND NOTHING IN THE DECLARATIONS
OF POLICY WHICH NARROWS THE DEFINITION OF A LABOR DISPUTE AS FOUND IN
THE STATUTES.  THE RIGHTS OF THE PARTIES AND THE JURISDICTION OF THE
FEDERAL COURTS ARE TO BE DETERMINED ACCORDING TO THE EXPRESS PROVISIONS
APPLICABLE TO LABOR DISPUTES AS SO DEFINED." 

FN14  UNITED STATES V. HUTCHESON, 312 U.S. 219, 234, AND CASES CITED
THEREIN. 

FN15  SEE NOTE 2, SUPRA. 

FN16  WE NEED NOT HERE AGAIN GO INTO THE HISTORY OF THE NORRIS
LAGUARDIA ACT NOR THE ABUSES WHICH BROUGHT IT INTO BEING FOR THAT HAS
BEEN AMPLY DISCUSSED ON SEVERAL OCCASIONS.  SEE FRANKFURTER AND GREENE,
THE LABOR INJUNCTION.  AND SEE E.G., UNITED STATES V. HUTCHESON, 312
U.S. 219, 235-236; MILK WAGON DRIVERS' UNION V. LAKE VALLEY FARM
PRODUCTS, INC., 311 U.S. 91, 102-103.  IT IS SUFFICIENT HERE TO NOTE
THAT THE REASONS WHICH LED TO THE PASSAGE OF THE ACT WERE SUBSTANTIAL
AND THAT THE ACT HAS BEEN AN IMPORTANT PART OF THE PATTERN OF
LEGISLATION UNDER WHICH UNIONS HAVE FUNCTIONED FOR NEARLY 30 YEARS. 

FN17  SECTION 301(E) OF THE ACT, 61 STAT. 156, 29 U.S.C. SEC. 185(E),
PROVIDES:  "FOR THE PURPOSES OF THIS SECTION, IN DETERMINING WHETHER
ANY PERSON IS ACTING AS AN 'AGENT' OF ANOTHER PERSON SO AS TO MAKE SUCH
OTHER PERSON RESPONSIBLE FOR HIS ACTS, THE QUESTION OF WHETHER THE
SPECIFIC ACTS PERFORMED WERE ACTUALLY AUTHORIZED OR SUBSEQUENTLY
RATIFIED SHALL NOT BE CONTROLLING."  THIS, OF COURSE, WAS DESIGNED TO
AND DID REPEAL FOR PURPOSES OF SUITS UNDER SEC. 301 THE PREVIOUSLY
CONTROLLING PROVISIONS OF SEC. 6 OF THE NORRIS-LAGUARDIA ACT, 47 STAT.
71, 29 U.S.C. SEC. 106:  "NO OFFICER OR MEMBER OF ANY ASSOCIATION OR
ORGANIZATION, AND NO ASSOCIATION OR ORGANIZATION PARTICIPATING OR
INTERESTED IN A LABOR DISPUTE, SHALL BE HELD RESPONSIBLE OR LIABLE IN
ANY COURT OF THE UNITED STATES FOR THE UNLAWFUL ACTS OF INDIVIDUAL
OFFICERS, MEMBERS, OR AGENTS, EXCEPT UPON CLEAR PROOF OF ACTUAL
PARTICIPATION IN, OR ACTUAL AUTHORIZATION OF, SUCH ACTS, OR OF
RATIFICATION OF SUCH ACTS AFTER ACTUAL KNOWLEDGE THEREOF." 

FN18  61 STAT. 146, 155, AS AMENDED, 29 U.S.C. SECS. 160(H), 178(B). 

FN19  61 STAT. 157, 29 U.S.C. SEC. 186(E).  THAT THIS SECTION, WHICH
STANDS ALONE IN EXPRESSLY PERMITTING SUITS FOR INJUNCTIONS PREVIOUSLY
PROSCRIBED BY THE NORRIS-LAGUARDIA ACT TO BE BROUGHT IN THE FEDERAL
COURTS BY PRIVATE LITIGANTS UNDER THE TAFT-HARTLEY ACT, DEALS WITH AN
UNUSUALLY SENSITIVE AND IMPORTANT PROBLEM IS SHOWN BY THE FACT THAT
SEC. 186 MAKES THE CONDUCT SO ENJOINABLE A CRIME PUNISHABLE BY BOTH
FINE AND IMPRISONMENT. 

FN20  THIS FACT WAS EXPRESSLY RECOGNIZED BY THE COURT OF APPEALS FOR
THE SECOND CIRCUIT IN A.H. BULL STEAMSHIP CO. V. SEAFARERS'
INTERNATIONAL UNION, 250 F.2D 326, 331-332.  SEE ALSO W.L. MEAD, INC.,
V. TEAMSTERS LOCAL NO. 25, 217 F.2D 6, 9-10; COMMENT, LABOR INJUNCTIONS
AND JUDGE-MADE LABOR LAW:  THE CONTEMPORARY ROLE OF NORRIS-LAGUARDIA,
70 YALE L.J. 70, 97-99.  ANOTHER COMMENTATOR, THOUGH URGING HIS OWN
BELIEF THAT A STRIKE IN BREACH OF A COLLECTIVE AGREEMENT IS NOT A
"LABOR DISPUTE" WITHIN THE NORRIS-LAGUARDIA ACT, NEVERTHELESS ADMITS
THAT CONGRESS THOUGHT IT WAS AND DELIBERATELY DECIDED TO LEAVE THE ANTI
INJUNCTION PROVISIONS OF THAT ACT APPLICABLE TO SEC. 301 SUITS.  SEE
RICE, A PARADOX OF OUR NATIONAL LABOR LAW, 34 MARQ.  L. REV.  233,
235. 

FN21  H.R. 3020, 80TH CONG., 1ST SESS., AS IT PASSED THE HOUSE,
PROVIDED: 

"SEC. 302.  (A) ANY ACTION FOR OR PROCEEDING INVOLVING A VIOLATION OF
AN AGREEMENT BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION OR OTHER
REPRESENTATIVE OF EMPLOYEES MAY BE BROUGHT BY EITHER PARTY IN ANY
DISTRICT COURT OF THE UNITED STATES HAVING JURISDICTION OF THE PARTIES,
WITHOUT REGARD TO THE AMOUNT IN CONTROVERSY, IF SUCH AGREEMENT AFFECTS
COMMERCE, OR THE COURT OTHERWISE HAS JURISDICTION OF THE CAUSE. 

     *         *         *       *         * 

"(E)  IN ACTIONS AND PROCEEDINGS INVOLVING VIOLATIONS OF AGREEMENTS
BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION OR OTHER REPRESENTATIVE OF
EMPLOYEES, THE PROVISIONS OF THE ACT OF MARCH 23, 1932, ENTITLED 'AN
ACT TO AMEND THE JUDICIAL CODE AND TO DEFINE AND LIMIT THE JURISDICTION
OF COURTS SITTING IN EQUITY AND FOR OTHER PURPOSES,' SHALL NOT HAVE ANY
APPLICATION IN RESPECT OF EITHER PARTY."  I LEGISLATIVE HISTORY OF THE
LABOR MANAGEMENT RELATIONS ACT, 1947, 221-222. 

FN22  THIS IS TRUE BOTH OF THE ORIGINAL SENATE BILL, S. 1126, AS
REPORTED AND OF THE AMENDED HOUSE BILL, H.R. 3020, AS PASSED BY THE
SENATE.  I LEG.  HIST.  151-152; I. LEG.  HIST.  279-280. 

FN23  I LEG.  HIST.  111-112, 114, 239, 241-242. 

FN24  IN SUCH A SITUATION, SUIT FOR INJUNCTION COULD BE BROUGHT BY
THE BOARD AND, BY VIRTUE OF SEC. 10(H) OF THE NATIONAL LABOR RELATIONS
ACT, AS AMENDED BY THE TAFT-HARTLEY ACT, 61 STAT.  146, 29 U.S.C. SEC.
160(H), THE NORRIS-LAGUARDIA ACT WOULD NOT APPLY. 

FN25  H.R. CONF. REP. NO. 510, ON H.R. 3020, 80TH CONG., 1ST SESS.,
PP. 41-42, I LEG.  HIST.  545-546. 

FN26  H.R. CONF. REP. NO. 510, ON H.R. 3020, 80TH CONG., 1ST SESS.,
P. 66, I LEG.  HIST.  570. 

FN27  93 CONG. REC. 6445-6446, II LEG.  HIST.  1544.  IMMEDIATELY
PRIOR TO THIS REMARK, SENATOR TAFT HAD INSERTED INTO THE RECORD A
WRITTEN SUMMARY OF HIS UNDERSTANDING AS TO THE EFFECT OF THE CONFERENCE
UPON THE BILL PASSED BY THE SENATE:  "WHEN THE BILL PASSED THE SENATE
IT ALSO CONTAINED A SIXTH PARAGRAPH IN THIS SUBSECTION (8(A)) WHICH
MADE IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO VIOLATE THE TERMS
OF A COLLECTIVE-BARGAINING AGREEMENT OR THE TERMS OF AN AGREEMENT TO
SUBMIT A LABOR DISPUTE TO ARBITRATION.  THE HOUSE CONFEREES OBJECTED TO
THIS PROVISION ON THE GROUND THAT IT WOULD HAVE THE EFFECT OF MAKING
THE TERMS OF EVERY COLLECTIVE AGREEMENT SUBJECT TO INTERPRETATION AND
DETERMINATION BY THE BOARD, RATHER THAN BY THE COURTS.  THE SENATE
CONFEREES ULTIMATELY AGREED TO ITS ELIMINATION AS WELL AS THE DELETION
OF A SIMILAR PROVISION CONTAINED IN SUBSECTION 8(B)(5) OF THE SENATE
AMENDEMNT WHICH MADE IT AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION TO VIOLATE THE TERMS OF COLLECTIVE-BARGAINING AGREEMENTS. 
THE PROVISIONS OF THE SENATE AMENDMENT WHICH CONFERRED A RIGHT OF
ACTION FOR DAMAGES UPON A PARTY AGGRIEVED BY BREACH OF A COLLECTIVE
BARGAINING CONTRACT, HOWEVER, WERE RETAINED IN THE CONFERENCE AGREEMENT
(SECTION 301)."  93 CONG. REC. 6443, II LEG.  HIST. 1539. 

FN28 THE LEGISLATIVE HISTORY OF THE TAFT-HARTLEY ACT SHOWS THAT
CONGRESS ACTUALLY CONSIDERED AND RELIED UPON THIS NORMAL FUNCTIONING OF
THE JUDICIAL POWER AS INSURING THAT NO UNINTENDED REPEAL OF THE ANTI
INJUNCTION PROVISIONS OF THE NORRIS-LAGUARDIA ACT WOULD BE DECLARED. 
THUS SENATOR TAFT, WHEN PRESSED BY SENATOR MORSE WITH REGARD TO THE
POSSIBILITY THAT A PROVISION INSERTED IN SEC. 303(A) DELCARING
SECONDARY BOYCOTTS UNLAWFUL MIGHT BE HELD TO JUSTIFY AN INJUNCTION
PREVIOUSLY FORBIDDEN BY THE NORRIS-LAGUARDIA ACT, STATED:  "LET ME SAY
IN REPLY TO THE SENATOR OR ANYONE ELSE WHO MAKES THE SAME ARGUMENT,
THAT THAT IS NOT THE INTENTION OF THE AUTHOR OF THE AMENDMENT.  IT IS
NOT HIS BELIEF AS TO THE EFFECT OF IT.  IT IS NOT THE ADVICE OF COUNSEL
TO THE COMMITTEE.  UNDER THOSE CIRCUMSTANCES, I DO NOT BELIEVE THAT ANY
COURT WOULD CONSTRUE THE AMENDMENT ALONG THE LINES SUGGESTED BY THE
SENATOR FROM OREGON."  93 CONG. REC. 4872, II LEG.  HIST.  1396. 

FN29  353 U.S. 30. 

FN30  THE COURT IN CHICAGO RIVER EXPRESSLY RECOGNIZED AND RESTED ITS
DECISION UPON THE DIFFERENCES BETWEEN PROVISIONS FOR THE SETTLEMENT OF
DISPUTES UNDER THE RAILWAY LABOR ACT AND THE TAFT-HARTLEY ACT.  ID., AT
31-32, N. 2.  SEE ALSO ORDER OF RAILROAD TELEGRAPHERS V. CHICAGO &
NORTH WESTERN R. CO., 362 U.S. 330, 338-340. 

FN31  353 U.S. 30, AT 39. 

FN32  353 U.S. 448. 

FN33  ID., AT 458.  SEE ALSO ORDER OF RAILROAD TELEGRAPHERS V.
CHICAGO & NORTH WESTERN R. CO., 362 U.S. 330, 338-339, WHERE LINCOLN
MILLS AND OTHER CASES NOT INVOLVING AN INJUNCTION AGAINST ACTIVITY
PROTECTED BY SEC. 4 OF THE NORRIS-LAGUARDIA ACT WERE DISTINGUISHED ON
THIS GROUND.    FN34  AN INJUNCTION AGAINST A STRIKE OR PEACEFUL
PICKETING IN BREACH OF A COLLECTIVE AGREEMENT "WOULD REQUIRE STRONG
JUDICIAL CREATIVITY IN THE FACE OF THE PLAIN MEANING OF SECTION 4,"
COX, CURRENT PROBLEMS IN THE LAW OF GRIEVANCE ARBITRATION, 30 ROCKY MT.
L. REV. 247, 256, FOR, INDEED, SUCH AN INJUNCTION "WOULD FLY IN THE
FACE OF THE PLAIN WORDS OF SECTION 4 OF THE NORRIS-LAGUARDIA ACT, THE
HISTORICAL PURPOSE OF WHICH WAS TO MAKE PEACEFUL CONCERTED ACTIVITIES
UNENJOINABLE WITHOUT REGARD TO THE NATURE OF THE LABOR DISPUTE."  ID.,
AT 253. 

FN35  363 U.S. 564.    FN36  363 U.S. 574. 

FN37  363 U.S. 593. 

FN38  TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, AT 458
459. 

FN39  WE HAVE NOT IGNORED SINCLAIR'S ARGUMENT THAT TO APPLY THE
NORRIS-LAGUARDIA ACT HERE WOULD DEPRIVE IT OF ITS CONSTITUTIONAL RIGHT
TO EQUAL PROTECTION OF THE LAW, BOTH BECAUSE OF AN ALLEGEDLY UNLAWFUL
DISCRIMINATION BETWEEN TAFT-HARTLEY ACT EMPLOYERS AND RAILWAY LABOR ACT
EMPLOYERS BY VIRTUE OF THE DECISION IN CHICAGO RIVER, AND BECAUSE OF AN
ALLEGEDLY UNLAWFUL DISCRIMINATION BETWEEN TAFT-HARTLEY ACT EMPLOYERS
AND UNIONS BY VIRTUE OF THE DECISION IN LINCOLN MILLS.  WE DEEM IT
SUFFICIENT TO SAY THAT WE DO NOT FIND EITHER OF THESE ARGUMENTS
COMPELLING. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

I BELIEVE THAT THE COURT HAS REACHED THE WRONG RESULT BECAUSE IT HAS
ANSWERED ONLY THE FIRST OF THE QUESTIONS WHICH MUST BE ANSWERED TO
DECIDE THIS CASE.  OF COURSE SEC. 301 OF THE TAFT-HARTLEY ACT DID NOT,
FOR PURPOSES OF ACTIONS BROUGHT UNDER IT, "REPEAL" SEC. 4 OF THE NORRIS
LAGUARDIA ACT.  BUT THE TWO PROVISIONS DO COEXIST, AND IT IS CLEAR
BEYOND DISPUTE THAT THEY APPLY TO THE CASE BEFORE US IN APPARENTLY
CONFLICTING SENSES.  OUR DUTY, THEREFORE, IS TO SEEK OUT THAT
ACCOMMODATION OF THE TWO WHICH WILL GIVE THE FULLEST POSSIBLE EFFECT TO
THE CENTRAL PURPOSES OF BOTH.  SINCE SUCH ACCOMMODATION IS POSSIBLE,
THE COURT'S FAILURE TO FOLLOW THAT PATH LEADS IT TO A RESULT - NOT
JUSTIFIED BY EITHER THE LANGUAGE OR HISTORY OF SEC. 301 - WHICH IS
WHOLLY AT ODDS WITH OUR EARLIER HANDLING OF DIRECTLY ANALOGOUS
SITUATIONS AND WHICH CANNOT BE WOVEN INTELLIGIBLY INTO THE BROADER
FABRIC OF RELATED DECISIONS. 

         I. 

FEDERAL DISTRICT COURTS TO ENTERTAIN "SUITS FOR VIOLATION OF CONTRACTS
BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION  ...  ."  IT DOES NOT IN
TERMS ADDRESS ITSELF TO THE QUESTION OF REMEDIES.  AS WE HAVE CONSTRUED
SEC. 301, IT CASTS UPON THE DISTRICT COURTS A SPECIAL RESPONSIBILITY TO
CARRY OUT CONTRACTUAL SCHEMES FOR ARBITRATION, BY HOLDING PARTIES TO
THAT FAVORED PROCESS FOR SETTLEMENT WHEN IT HAS BEEN CONTRACTED FOR,
AND BY THEN REGARDING ITS RESULT AS CONCLUSIVE.  (FN1)  AT THE SAME
TIME, SEC. 4 OF THE NORRIS-LAGUARDIA ACT, ENACTED IN 1932, PROSCRIBES
THE ISSUANCE BY FEDERAL COURTS OF INJUNCTIONS AGAINST VARIOUS CONCERTED
ACTIVITIES "IN ANY CASE INVOLVING OR GROWING OUT OF ANY LABOR
DISPUTE."  BUT THE ENJOINING OF A STRIKE OVER AN ARBITRABLE GRIEVANCE
MAY BE INDESPENSABLE TO THE EFFECTIVE ENFORCEMENT OF AN ARBITRATION
SCHEME IN A COLLECTIVE AGREEMENT; THUS THE POWER TO GRANT THAT
INJUNCTIVE REMEDY MAY BE ESSENTIAL TO THE UNCRIPPLED PERFORMANCE OF THE
COURT'S FUNCTION UNDER SEC. 301.  (FN2)  THEREFORE, TO HOLD THAT SEC.
301 DID NOR REPEAL SEC. 4 IS ONLY A BEGINNING.  HAVING SO HELD, THE
COURT SHOULD - BUT DOES NOT - GO ON TO CONSIDER HOW IT IS TO DEAL WITH
THE SURFACE CONFLICT BETWEEN THE TWO STATUTORY COMMANDS. 

THE COURT HAS LONG ACTED UPON THE PREMISE THAT THE NORRIS-LAGUARDIA
ACT DOES NOT STAND IN ISOLATION.  IT IS ONE OF SEVERAL STATUTES WHICH,
TAKEN TOGETHER, SHAPE THE NATIONAL LABOR POLICY.  ACCORDINGLY, THE
COURT HAS RECOGNIZED THAT NORRIS-LAGUARDIA DOES NOT INVARIABLY BAR
INJUNCTIVE RELIEF WHEN NECESSARY TO ACHIEVE AN IMPORTANT OBJECTIVE OF
SOME OTHER STATUTE IN THE PATTERN OF LABOR LAWS.  SEE BROTHERHOOD OF
RAILROAD TRAINMEN V. CHICAGO RIVER R. CO., 353 U.S. 30; GRAHAM V.
BROTHERHOOD OF LOCOMOTIVE FIREMEN, 338 U.S. 232; VIRGINIAN R. CO. V.
SYSTEM FEDERATION, 300 U.S. 515, 562-563.  IN CHICAGO RIVER WE INSISTED
THAT THERE "MUST BE AN ACCOMMODATION OF THE NORRIS-LAGUARDIA ACT AND
THE RAILWAY LABOR ACT SO THAT THE OBVIOUS PURPOSE IN THE ENACTMENT OF
EACH IS PRESERVED."  (FN3) 

THESE DECISIONS REFUSING INFLEXIBLE APPLICATION OF NORRIS-LAGUARDIA
POINT TO THE NECESSITY OF A CAREFUL INQUIRY WHETHER THE SURFACE
CONFLICT BETWEEN SEC. 301 AND SEC. 4 IS IRRECONCILABLE IN THE SETTING
BEFORE US:  A STRIKE OVER A GRIEVANCE WHICH BOTH PARTIES HAVE AGREED TO
SETTLE BY BINDING ARBITRATION.  I THINK THAT THERE IS NOTHING IN EITHER
THE LANGUAGE OF SEC. 301 OR ITS HISTORY TO PREVENT SEC. 4'S HERE BEING
ACCOMMODATED WITH IT, JUST AS SEC. 4 WAS ACCOMMODATED WITH THE RAILWAY
LABOR ACT. 

            II. 

IT CANNOT BE DENIED THAT THE AVAILABILITY OF THE INJUNCTIVE REMEDY IN
THIS SETTING IS FAR MORE NECESSARY TO THE ACCOMPLISHMENT OF THE
PURPOSES OF SEC. 301 THAN IT WOULD BE DETRIMENTAL TO THOSE OF NORRIS
LAGUARDIA.  CHICAGO RIVER MAKES THIS PLAIN.  WE THERE HELD THAT THE
FEDERAL COURTS, NOTWITHSTANDING NORRIS-LAGUARDIA, MAY ENJOIN STRIKES
OVER DISPUTES AS TO THE INTERPRETATION OF AN EXISTING COLLECTIVE
AGREEMENT, SINCE SUCH STRIKES FLOUT THE DUTY IMPOSED ON THE UNION BY
THE RAILWAY LABOR ACT TO SETTLE SUCH "MINOR DISPUTES" BY SUBMISSION TO
THE NATIONAL RAILROAD ADJUSTMENT BOARD RATHER THAN BY CONCERTED
ECONOMIC PRESSURES.  WE SO HELD, EVEN THOUGH THE RAILWAY LABOR ACT
CONTAINS NO EXPRESS PROHIBITION OF STRIKES OVER "MINOR DISPUTES,"
BECAUSE WE FOUND IT ESSENTIAL TO THE MEANINGFUL ENFORCEMENT OF THAT ACT
- AND BECASUE THE EXISTENCE OF MANDATORY ARBITRATION ELIMINATED ONE OF
THE PROBLEMS TO WHICH NORRIS-LAGUARDIA WAS CHIEFLY ADDRESSED, NAMELY,
THAT "THE INJUNCTION STRIPS LABOR OF ITS PRIMARY WEAPON WITHOUT
SUBSTITUTING ANY REASONABLE ALTERNATIVE."  (FN4) 

THAT REASONING IS APPLICABLE WITH EQUAL FORCE TO AN INJUNCTION UNDER
SEC. 301 TO ENFORCE A UNION'S CONTRACTUAL DUTY, ALSO BINDING ON THE
EMPLOYER, TO SUBMIT CERTAIN DISPUTES TO TERMINAL ARBITRATION AND TO
REFRAIN FROM STRIKING OVER THEM.  THE FEDERAL LAW EMBODIED IN SEC. 301
STRESSES THE EFFECTIVE ENFORCEMENT OF SUCH ARBITRATION AGREEMENTS. 
WHEN ONE OF THEM IS ABOUT TO BE SABOTAGED BY A STRIKE, SEC. 301 HAS AS
STRONG A CLAIM UPON AN ACCOMMODATING INTERPRETATION OF SEC. 4 AS DOES
THE COMPULSORY ARBITRATION LAW OF THE RAILWAY LABOR ACT.  IT IS EQUALLY
TRUE IN BOTH CASES THAT "AN INJUNCTION ALONE CAN EFFECTIVELY GUARD THE
PLAINTIFF'S RIGHT," MACHINISTS V. STREET, 367 U.S. 740, 773.  IT IS
EQUALLY TRUE IN BOTH CASES THAT THE EMPLOYER'S SPECIFICALLY ENFORCEABLE
OBLIGATION TO ARBITRATE PROVIDES A "REASONABLE ALTERNATIVE" TO THE
STRIKE WEAPON.  IT IS EQUALLY TRUE IN BOTH CASES THAT A MAJOR
CONTRIBUTING CAUSE FOR THE ENACTMENT OF NORRIS-LAGUARDIA - THE AT
LARGENESS OF FEDERAL JUDGES IN ENJOINING ACTIVITIES THOUGHT TO SEEK
"UNLAWFUL ENDS" OR TO CONSTITUTE "UNLAWFUL MEANS" (FN5) - IS NOT
INVOLVED.  INDEED, THERE IS IN THIS CASE A FACTOR WEIGHING IN FAVOR OF
THE ISSUANCE OF AN INJUNCTION WHICH WAS NOT PRESENT IN CHICAGO RIVER:
(FN6)  THE EXPRESS CONTRACTUAL COMMITMENT OF THE UNION TO REFRAIN FROM
STRIKING, VIEWED IN LIGHT OF THE OVERRIDING PURPOSE OF SEC. 301 TO
ASSIST THE ENFORCEMENT OF COLLECTIVE AGREEMENTS. 

IN ANY EVENT, I SHOULD HAVE THOUGHT THAT THE QUESTION WAS SETTLED BY
TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448.  IN THAT CASE, THE
COURT HELD THAT THE PROCEDURAL REQUIREMENTS OF NORRIS-LAGUARDIA'S SEC.
7, ALTHOUGH IN TERMS FULLY APPLICABLE, WOULD NOT APPLY SO AS TO
FRUSTRATE A FEDERAL COURT'S EFFECTIVE ENFORCEMENT UNDER SEC. 301 OF AN
EMPLOYER'S OBLIGATION TO ARBITRATE.  IT IS STRANGE, I THINK, THAT SEC.
7 OF THE NORRIS-LAGUARDIA ACT NEED NOT BE READ, IN THE FACE OF SEC.
301, TO IMPOSE INAPT PROCEDURAL RESTRICTIONS UPON THE SPECIFIC
ENFORCEMENT OF AN EMPLOYER'S CONTRACTUAL DUTY TO ARBITRATE; BUT THAT
SEC. 4 MUST BE READ, DESPITE SEC. 301, TO PRECLUDE ABSOLUTELY THE
ISSUANCE OF AN INJUNCTION AGAINST A STRIKE WHICH IGNORES A UNION'S
IDENTICAL DUTY. 

                                             III. 

THE LEGISLATIVE HISTORY OF SEC. 301 AFFORDS THE COURT NO REFUGE FROM
THE COMPELLING EFFECT OF OUR PRIOR DECISIONS.  THAT HISTORY SHOWS THAT
CONGRESS CONSIDERED AND REJECTED "THE ADVISABILITY OF REPEALING THE
NORRIS-LAGUARDIA ACT INSOFAR AS SUITS BASED UPON BREACH OF COLLECTIVE
BARGAINING AGREEMENTS ARE CONCERNED  ...  ."  (FN7)  BUT CONGRESSIONAL
REJECTION OF OUTRIGHT REPEAL CERTAINLY DOES NOT IMPLY HOSTILITY TO AN
ATTEMPT BY THE COURTS TO ACCOMMODATE ALL STATUTES PERTINENT TO THE
DECISION OF CASES BEFORE THEM.  AGAIN, THE COURT'S CONCLUSION STEMS
FROM PUTTING THE WRONG QUESTION.   WHEN IT IS APPRECIATED THAT THERE IS
NO QUESTION HERE OF "REPEAL," BUT RATHER ONE OF HOW THE COURT IS TO
APPLY THE WHOLE STATUTORY COMPLEX TO THE CASE BEFORE IT, IT BECOMES
CLEAR THAT THE LEGISLATIVE HISTORY DOES NOT SUPPORT THE COURT'S
CONCLUSION.  FIRST, HOWEVER, IT SEEMS APPROPRIATE TO DISCUSS, AS THE
COURT HAS DONE, THE LANGUAGE OF SEC. 301 CONSIDERED IN LIGHT OF OTHER
PROVISIONS OF THE STATUTE. 

THERE IS NOTHING IN THE WORDS OF SEC. 301 WHICH SO MUCH AS INTIMATES
ANY LIMITATION TO DAMAGE REMEDIES WHEN THE ASSERTED BREACH OF CONTRACT
CONSISTS OF CONCERTED ACTIVITY.  THE SECTION SIMPLY AUTHORIZES THE
DISTRICT COURTS TO ENTERTAIN AND DECIDE SUITS FOR VIOLATION OF
COLLECTIVE CONTRACTS.  TAKING THE LANGUAGE ALONE, THE IRRESISTIBLE
IMPLICATION WOULD BE THAT THE DISTRICT COURTS WERE TO EMPLOY THEIR
REGULAR ARSENAL OF REMEDIES APPROPRIATELY TO THE SITUATION.  THAT WOULD
MEAN, OF COURSE, THAT INJUNCTIVE RELIEF COULD BE AFFORDED WHEN DAMAGES
WOULD NOT BE AN ADEQUATE REMEDY.  THIS MUCH, SURELY, IS SETTLED BY
LINCOLN MILLS.  BUT THE COURT REASONS THAT THE FAILURE OF SEC. 301
EXPLICITLY TO REPEAL SEC. 4 OF NORRIS-LAGUARDIA COMPLETELY NEGATES THE
AVAILABILITY OF INJUNCTIVE RELIEF IN ANY CASE WHERE THAT PROVISION - IN
THE ABSENCE OF SEC. 301 - WOULD APPLY.  THAT REASONING STEMS FROM
ATTACHING UNDUE SIGNIFICANCE TO THE FACT THAT EXPRESS REPEAL OF NORRIS
LAGUARDIA PROVISIONS MAY BE FOUND IN CERTAIN OTHER SECTIONS OF THE TAFT
HARTLEY ACT - FROM WHICH THE COURT CONCLUDES "NOT ONLY THAT CONGRESS
WAS COMPLETELY FAMILIAR WITH THOSE PROVISIONS BUT ALSO THAT IT REGARDED
AN EXPRESS DECLARATION OF INAPPLICABILITY AS THE NORMAL AND PROPER
MANNER OF REPEALING THEM IN SITUATIONS WHERE SUCH REPEAL SEEMED
DESIRABLE."  (FN8)  EVEN ON THIS ANALYSIS THE MOST THAT CAN BE DEDUCED
FROM SUCH A COMPARATIVE READING IS THAT WHILE REPEAL OF NORRIS
LAGUARDIA SEEMED DESIRABLE TO CONGRESS IN CERTAIN OTHER CONTEXTS,
REPEAL DID NOT SEEM DESIRABLE IN CONNECTION WITH SEC. 301. 

SOUND REASONS EXPLAIN WHY REPEAL OF NORRIS-LAGUARDIA PROVISIONS,
ACCEPTABLE IN OTHER SETTINGS, MIGHT HAVE BEEN FOUND ILL-SUITED FOR THE
PURPOSE OF SEC. 301.  AND THOSE REASONS FALL FAR SHORT OF A DESIGN TO
PRECLUDE ABSOLUTELY THE ISSUANCE UNDER SEC. 301 OF ANY INJUNCTION
AGAINST AN ACTIVITY INCLUDED IN SEC. 4 OF NORRIS-LAGUARDIA.  SECTION
10(H) OF THE ACT (FN9) SIMPLY LIFTS THE SEC. 4 BARRIER IN CONNECTION
WITH PROCEEDINGS BROUGHT BY THE NATIONAL LABOR RELATIONS BOARD - IN THE
COURTS OF APPEALS FOR ENFORCEMENT OF BOARD CEASE-AND-DESIST ORDERS
AGAINST UNFAIR LABOR PRACTICES, AND IN THE DISTRICT COURTS FOR
INTERLOCUTORY RELIEF AGAINST ACTIVITIES BEING PROSECUTED BEFORE THE
BOARD AS UNFAIR LABOR PRACTICES.  THIS REPEAL IN AID OF GOVERNMENT
LITIGATION TO ENFORCE CAREFULLY DRAFTED PROHIBITIONS ALREADY IN THE ACT
AS UNFAIR LABOR PRACTICES WAS, OBVIOUSLY, ENTIRELY APPROPRIATE,
DEFINITELY LIMITED IN SCOPE, PREDICTABLE IN EFFECT, AND DEVOID OF ANY
RISK OF ABUSE OR MISUNDERSTANDING.  MUCH THE SAME IS TRUE OF SEC.
208(B) OF TAFT-HARTLEY, (FN10) WHICH SIMPLY REPEALS NORRIS-LAGUARDIA IN
A CASE WHERE THE ATTORNEY GENERAL SEEKS AN INJUNCTION AT THE DIRECTION
OF THE PRESIDENT, WHO MUST BE OF THE OPINION - AFTER HAVING BEEN
ADVISED BY A BOARD OF INQUIRY - THAT CONTINUATION OF THE STRIKE IN
QUESTION WOULD IMPERIL THE NATIONAL HEALTH AND SAFETY. 

ONLY IN SEC. 302(E) OF TAFT-HARTLEY (FN11) IS THERE FOUND A REPEAL OF
NORRIS-LAGUARDIA'S ANTI-INJUNCTION PROVISIONS IN FAVOR OF A SUIT BY A
PRIVATE LITIGANT.  (FN12)  THE DISTRICT COURTS ARE THERE AUTHORIZED TO
RESTRAIN THE PAYMENT BY EMPLOYERS AND THE ACCEPTANCE BY EMPLOYEE
REPRESENTATIVES OF UNAUTHORIZED PAYMENTS IN THE NATURE OF BRIBES.  NOT
ONLY IS THE PROBLEM THUS DEALT WITH "UNUSUALLY SENSITIVE AND
IMPORTANT," AS THE COURT NOTES, (FN13) BUT THE REPEAL OF NORRIS
LAGUARDIA IS CLEARLY, PREDICTABLY, AND NARROWLY CONFINED TO ONE KIND OF
SUIT OVER ONE KIND OF INJURY; AND OBVIOUSLY IT PRESENTS NO POSSIBLE
THREAT TO THE IMPORTANT PURPOSES OF THAT ACT. 

HOW DIFFERENT WAS THE PROBLEM POSED BY SEC. 301, WHICH BROADLY
AUTHORIZED DISTRICT COURTS TO DECIDE SUITS FOR BREACH OF CONTRACT.  THE
CONGRESS UNDERSTANDABLY MAY NOT HAVE FELT ABLE TO PREDICT WHAT
PROVISIONS WOULD CROP UP IN COLLECTIVE BARGAINING AGREEMENTS, TO
FORESEE THE SETTINGS IN WHICH THESE WOULD BECOME SUBJECTS OF
LITIGATION, OR TO FORECAST THE RULES OF LAW WHICH THE COURTS WOULD
APPLY.  THE CONSEQUENCES OF REPEALING THE ANTI-INJUNCTION PROVISIONS IN
THIS CONTEXT WOULD HAVE BEEN COMPLETELY UNKNOWABLE, AND OUTRIGHT
REPEAL, THEREFORE, MIGHT WELL HAVE SEEMED UNTHINKABLE.  CONGRESS,
CLEARLY, HAD NO INTENTION OF ABANDONING WHOLESALE THE NORRIS-LAGUARDIA
POLICIES IN CONTRACT SUITS; BUT IT DOES NOT FOLLOW THAT SEC. 301 IS NOT
THE EQUAL OF SEC. 4 IN CASES WHICH IMPLICATE BOTH PROVISIONS. 
INDEED, IT MIGHT WITH AS MUCH FORCE BE SAID THAT CONGRESS KNEW WELL HOW
TO LIMIT REMEDIES AGAINST EMPLOYEE ACTIVITIES TO DAMAGES WHEN THAT WAS
WHAT IT INTENDED, AS THAT CONGRESS KNEW HOW TO REPEAL NORRIS-LAGUARDIA
WHEN THAT WAS WHAT IT INTENDED.  SECTION 303 OF TAFT-HARTLEY (FN14)
AUTHORIZES PRIVATE ACTIONS FOR DAMAGES RESULTING FROM CERTAIN CONCERTED
EMPLOYEE ACTIVITIES.  WHEN THAT SECTION WAS INTRODUCED ON THE SENATE
FLOOR, IT PROVIDED FOR INJUNCTIVE RELIEF AS WELL.  EXTENDED DEBATE
REVEALED STRONG SENTIMENT AGAINST THE INJUNCTION FEATURE, WHICH
INCORPORATED A REPEAL OF NORRIS-LAGUARDIA.  THE SECTION'S SUPPORTERS,
THEREFORE, PROPOSED A DIFFERENT VERSION WHICH PROVIDED FOR DAMAGES
ONLY.  IN THIS FORM, THE SECTION WAS ADOPTED BY THE SENATE - AND LATER
BY THE CONFERENCE AND THE HOUSE.  (FN15)  CERTAINLY, AFTER THIS
EXPERIENCE CONGRESS WOULD HAVE USED LANGUAGE CONFINING SEC. 301 TO
DAMAGE REMEDIES WHEN IT WAS INVOKED AGAINST CONCERTED ACTIVITY, IF SUCH
HAD BEEN THE INTENTION. 

THE STATUTORY LANGUAGE THUS FAILS TO SUPPORT THE COURT'S POSITION. 
THE INFERENCE IS AT LEAST AS STRONG THAT CONGRESS WAS CONTENT TO RELY
UPON THE COURTS TO RESOLVE ANY SEEMING CONFLICTS BETWEEN SEC. 301 AND
SEC. 4 AS THEY AROSE IN THE RELATIVELY MANAGEABLE SETTING OF PARTICULAR
CASES, AS THAT CONGRESS INTENDED TO LIMIT TO DAMAGES THE REMEDIES
COURTS COULD AFFORD AGAINST CONCERTED ACTIVITIES UNDER SEC. 301.  THE
COURT THEN SHOULD SO EXERCISE ITS JUDGMENT AS BEST TO EFFECT THE MOST
IMPORTANT PURPOSES OF EACH STATUTE.  IT SHOULD NOT BE BOUND BY
INSCRUTABLE CONGRESSIONAL SILENCE TO A WOODEN PREFERENCE FOR ONE
STATUTE OVER THE OTHER. 

NOR DOES THE LEGISLATIVE HISTORY OF SEC. 301 SUGGEST ANY DIFFERENT
CONCLUSION.  AS THE COURT NOTES, THE HOUSE VERSION WOULD HAVE REPEALED
NORRIS-LAGUARDIA IN SUITS BROUGHT UNDER THE NEW SECTION.  (FN16)  THE
SENATE VERSION OF SEC. 301, LIKE THE SECTION AS ENACTED, DID NOT DEAL
WITH NORRIS-LAGUARDIA, BUT NEITHER DID IT LIMIT THE REMEDIES AVAILABLE
AGAINST CONCERTED ACTIVITY.  (FN17)  THUS ANY ATTEMPT TO ASCERTAIN THE
SENATE'S INTENTION WOULD FACE THE SAME CHOICES AS THOSE I HAVE
SUGGESTED IN DEALING WITH THE LANGUAGE OF SEC. 301 AS FINALLY ENACTED. 
IT FOLLOWS THAT TO CONSTRUE THE CONFERENCE COMMITTEE'S ELIMINATION OF
THE HOUSE REPEAL AS LEAVING OPEN THE POSSIBILITY OF JUDICIAL
ACCOMMODATION IS AT LEAST AS REASONABLE AS TO CONCLUDE THAT CONGRESS,
BY ITS SILENCE, WAS DIRECTING THE COURTS TO DISREGARD SEC. 301 WHENEVER
OPPOSITION FROM SEC. 4 WAS ENCOUNTERED.  (FN18) 

I EMPHASIZE THAT THE QUESTION IN THIS CASE IS NOT WHETHER THE BASIC
POLICY EMBODIED IN NORRIS-LAGUARDIA AGAINST THE INJUNCTION OF
ACTIVITIES OF LABOR UNIONS HAS BEEN ABANDONED IN ACTIONS UNDER SEC.
301; THE QUESTION IS SIMPLY WHETHER INJUNCTIONS ARE BARRED AGAINST
STRIKES OVER GRIEVANCES WHICH HAVE BEEN ROUTED TO ARBITRATION BY A
CONTRACT SPECIFICALLY ENFORCEABLE AGAINST BOTH THE UNION AND THE
EMPLOYER.  ENFORCED ADHERENCE TO SUCH ARBITRATION COMMITMENTS HAS
EMERGED AS A DOMINANT MOTIF IN THE DEVELOPING FEDERAL LAW OF COLLECTIVE
BARGAINING AGREEMENTS.  BUT THERE IS NO GENERAL FEDERAL ANTI-STRIKE
POLICY; AND ALTHOUGH A SUIT MAY BE BROUGHT UNDER SEC. 301 AGAINST
STRIKES WHICH, WHILE THEY ARE BREACHES OF PRIVATE CONTRACTS, DO NOT
THREATEN ANY ADDITIONAL PUBLIC POLICY, IN SUCH CASES THE ANTI
INJUNCTION POLICY OF NORRIS-LAGUARDIA SHOULD PREVAIL.  INSISTENCE UPON
STRICT APPLICATION OF NORRIS-LAGUARDIA TO A STRIKE OVER A DISPUTE WHICH
BOTH PARTIES ARE BOUND BY CONTRACT TO ARBITRATE THREATENS A LEADING
POLICY OF OUR LABOR RELATIONS LAW.  BUT THERE MAY BE NO SUCH THREAT IF
THE UNION HAS MADE NO BINDING AGREEMENT TO ARBITRATE; AND IF THE
EMPLOYER CANNOT BE COMPELLED TO ARBITRATE, RESTRAINING THE STRIKE WOULD
CUT DEEP INTO THE CORE OF NORRIS-LAGUARDIA.  THEREFORE, UNLESS BOTH
PARTIES ARE SO BOUND, LIMITING AN EMPLOYER'S REMEDY TO DAMAGES MIGHT
WELL BE APPROPRIATE.  THE SUSCEPTIBILITY OF PARTICULAR CONCRETE
SITUATIONS TO THIS SORT OF ANALYSIS SHOWS THAT REJECTION OF AN OUTRIGHT
REPEAL OF SEC. 4 WAS WHOLLY CONSISTENT WITH ACCEPTANCE OF A TECHNIQUE
OF ACCOMMODATION WHICH WOULD LEAD, IN SOME CASES, TO THE GRANTING OF
INJUNCTIONS AGAINST CONCERTED ACTIVITY.  ACCOMMODATION REQUIRES ONLY
THAT THE ANTI-INJUNCTION POLICY OF NORRIS-LAGUARDIA NOT INTRUDE INTO
AREAS, NOT VITAL TO ITS ENDS, WHERE INJUNCTIVE RELIEF IS VITAL TO A
PURPOSE OF SEC. 301; IT DOES NOT REQUIRE UNCONDITIONAL SURRENDER. 

                                             IV. 

TODAY'S DECISION CANNOT BE FITTED HARMONIOUSLY INTO THE PATTERN OF
PRIOR DECISIONS ON ANALOGOUS AND RELATED MATTERS.  CONSIDERED IN THEIR
LIGHT, THE DECISION LEADS INESCAPABLY TO RESULTS CONSISTENT NEITHER
WITH ANY IMAGINABLE LEGISLATIVE PURPOSE NOR WITH SOUND JUDICIAL
ADMINISTRATION. 

WE HAVE HELD THAT UNIFORM DOCTRINES OF FEDERAL LABOR LAW ARE TO BE
FASHIONED JUDICIALLY IN SUITS BROUGHT UNDER SEC. 301, TEXTILE WORKERS
V. LINCOLN MILLS, 353 U.S. 448; THAT ACTIONS BASED ON COLLECTIVE
AGREEMENTS REMAIN COGNIZABLE IN STATE AS WELL AS FEDERAL COURTS, DOWD
BOX CO. V. COURTNEY, 368 U.S. 502; AND THAT STATE COURTS MUST APPLY
FEDERAL LAW IN SUCH ACTIONS, TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369
U.S. 95. 

THE QUESTION ARISES WHETHER TODAY'S PROHIBITION OF INJUNCTIVE RELIEF
IS TO BE CARRIED OVER TO STATE COURTS AS A PART OF THE FEDERAL LAW
GOVERNING COLLECTIVE AGREEMENTS.  IF SO, SEC. 301, A PROVISION PLAINLY
DESIGNED TO ENHANCE THE RESPONSIBILITY OF UNIONS TO THEIR CONTRACTS,
WILL HAVE HAD THE OPPOSITE EFFECT OF DEPRIVING EMPLOYERS OF A STATE
REMEDY THEY ENJOYED PRIOR TO ITS ENACTMENT. 

ON THE OTHER HAND IF, AS TODAY'S LITERAL READING SUGGESTS (FN19) AND
AS A LEADING STATE DECISION HOLDS, (FN20) STATES REMAIN FREE TO APPLY
THEIR INJUNCTIVE REMEDIES AGAINST CONCERTED ACTIVITIES IN BREACH OF
CONTRACT, THE DEVELOPMENT OF A UNIFORM BODY OF FEDERAL CONTRACT LAW IS
IN FOR HARD TIMES.  SO LONG AS STATE COURTS REMAIN FREE TO GRANT THE
INJUNCTIONS UNAVAILABLE IN FEDERAL COURTS, SUITS SEEKING RELIEF AGAINST
CONCERTED ACTIVITIES IN BREACH OF CONTRACT WILL BE CHANNELED TO THE
STATES WHENEVER POSSIBLE.  IRONICALLY, STATE RATHER THAN FEDERAL COURTS
WILL BE THE PREFERRED INSTRUMENTS TO PROTECT THE INTEGRITY OF THE
ARBITRATION PROCESS, WHICH LINCOLN MILLS AND THE STEELWORKERS DECISIONS
FORGED INTO A KINGPIN OF FEDERAL LABOR POLICY.  ENUNCIATION OF UNIFORM
DOCTRINES APPLICABLE IN SUCH CASES WILL BE SEVERELY IMPEDED.  MOREOVER,
THE TYPE OF RELIEF AVAILABLE IN A PARTICULAR INSTANCE WILL TURN ON
FORTUITIES OF LOCALE AND SUSCEPTIBILITY TO PROCESS - DEPENDING UPON
WHICH STATES HAVE ANTI-INJUNCTION STATUTES AND HOW THEY CONSTRUE THEM. 

I HAVE NOT OVERLOOKED THE POSSIBILITY THAT REMOVAL OF THE STATE SUIT
TO THE FEDERAL COURT MIGHT PROVIDE THE ANSWER TO THESE DIFFICULTIES. 
BUT IF SEC. 4 IS TO BE READ LITERALLY, REMOVAL WILL NOT BE ALLOWED. 
(FN21)  AND IF IT IS ALLOWED, THE RESULT ONCE AGAIN IS THAT SEC. 301
WILL HAVE HAD THE STRANGE CONSEQUENCE OF TAKING AWAY A CONTRACT REMEDY
AVAILABLE BEFORE ITS ENACTMENT. 

     V. 

THE DECISION DEALS A CRIPPLING BLOW TO THE CAUSE OF GRIEVANCE
ARBITRATION ITSELF.  ARBITRATION IS SO HIGHLY REGARDED AS A PROVED
TECHNIQUE FOR INDUSTRIAL PEACE THAT EVEN THE NORRIS-LAGUARDIA ACT
FOSTERS ITS USE.  (FN22)  BUT SINCE UNIONS CANNOT BE ENJOINED BY A
FEDERAL COURT FROM STRIKING IN OPEN DEFIANCE OF THEIR UNDERTAKINGS TO
ARBITRATE, EMPLOYERS WILL PAUSE LONG BEFORE COMMITTING THEMSELVES TO
OBLIGATIONS ENFORCEABLE AGAINST THEM BUT NOT AGAINST THEIR UNIONS.  THE
COURT DOES NOT DENY THE DESIRABILITY, INDEED, NECESSITY, FOR INJUNCTIVE
RELIEF AGAINST A STRIKE OVER AN ARBITRABLE GRIEVANCE.  (FN23)  THE
COURT SAYS ONLY THAT FEDERAL COURTS MAY NOT GRANT SUCH RELIEF, THAT
CONGRESS MUST AMEND SEC. 4 IF THOSE COURTS ARE TO GIVE SUBSTANCE TO THE
CONGRESSIONAL PLAN OF ENCOURAGING PEACEABLE SETTLEMENTS OF GRIEVANCES
THROUGH ARBITRATION. 

                         VI. 

A DISTRICT COURT ENTERTAINING AN ACTION UNDER SEC. 301 MAY NOT GRANT
INJUNCTIVE RELIEF AGAINST CONCERTED ACTIVITY UNLESS AND UNTIL IT
DECIDES THAT THE CASE IS ONE IN WHICH AN INJUNCTION WOULD BE
APPROPRIATE DESPITE THE NORRIS-LAGUARDIA ACT.  WHEN A STRIKE IS SOUGHT
TO BE ENJOINED BECAUSE IT IS OVER A GRIEVANCE WHICH BOTH PARTIES ARE
CONTRACTUALLY BOUND TO ARBITRATE, THE DISTRICT COURT MAY ISSUE NO
INJUNCTIVE ORDER UNTIL IT FIRST HOLDS THAT THE CONTRACT DOES HAVE THAT
EFFECT; AND THE EMPLOYER SHOULD BE ORDERED TO ARBITRATE, AS A CONDITION
OF HIS OBTAINING AN INJUNCTION AGAINST THE STRIKE.  BEYOND THIS, THE
DISTRICT COURT MUST, OF COURSE, CONSIDER WHETHER ISSUANCE OF AN
INJUNCTION WOULD BE WARRANTED UNDER ORDINARY PRINCIPLES OF EQUITY -
WHETHER BREACHES ARE OCCURRING AND WILL CONTINUE, OR HAVE BEEN
THREATENED AND WILL BE COMMITTED; WHETHER THEY HAVE CAUSED OR WILL
CAUSE IRREPARABLE INJURY TO THE EMPLOYER; AND WHETHER THE EMPLOYER WILL
SUFFER MORE FROM THE DENIAL OF AN INJUNCTION THAN WILL THE UNION FROM
ITS ISSUANCE. 

IN THE CASE BEFORE US, THE UNION ENJOYS THE CONTRACTUAL RIGHT TO MAKE
THE EMPLOYER SUBMIT TO FINAL AND BINDING ARBITRATION OF ANY EMPLOYEE
GRIEVANCE.  AT THE SAME TIME, THE UNION AGREES THAT "THERE SHALL BE NO
STRIKES  ...  FOR ANY CAUSE WHICH IS OR MAY BE THE SUBJECT OF A
GRIEVANCE."  (FN24)  THE COMPLAINT ALLEGED THAT THE UNION HAD, OVER THE
PAST SEVERAL MONTHS, REPEATEDLY ENGAGED IN "QUICKIE" STRIKES OVER
ARBITRABLE GRIEVANCES.  UNDER THE CONTRACT AND THE COMPLAINT, THEN, THE
DISTRICT COURT MIGHT CONCLUDE THAT THERE HAVE OCCURRED AND WILL
CONTINUE TO OCCUR BREACHES OF CONTRACT OF A TYPE TO WHICH THE PRINCIPLE
OF ACCOMMODATION APPLIES.  IT FOLLOWS THAT RATHER THAN DISMISSING THE
COMPLAINT'S REQUEST FOR AN INJUNCTION, THE COURT SHOULD REMAND THE CASE
TO THE DISTRICT COURT WITH DIRECTIONS TO CONSIDER WHETHER TO GRANT THE
RELIEF SOUGHT - AN INJUNCTION AGAINST FUTURE REPETITIONS.  THIS WOULD
ENTAIL A WEIGHING OF THE EMPLOYER'S NEED FOR SUCH AN INJUNCTION AGAINST
THE HARM THAT MIGHT BE INFLICTED UPON LEGITIMATE EMPLOYEE ACTIVITY.  IT
WOULD CALL INTO QUESTION THE FEASIBILITY OF SETTING UP IN FUTURO
CONTEMPT SANCTIONS AGAINST THE UNION (FOR STRIKING) AND AGAINST THE
EMPLOYER (FOR REFUSING TO ARBITRATE) IN REGARD TO PROSPECTIVE DISPUTES
WHICH MIGHT FALL MORE OR LESS CLEARLY INTO THE ADJUDICATED CATEGORY OF
ARBITRABLE GRIEVANCES.  IN SHORT, THE DISTRICT COURT WILL HAVE TO
CONSIDER WITH GREAT CARE WHETHER IT IS POSSIBLE TO DRAFT A DECREE WHICH
WOULD DEAL EQUITABLY WITH ALL THE INTERESTS AT STAKE. 

I WOULD REVERSE THE COURT OF APPEALS AND REMAND TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS DISSENTING OPINION. 

FN1  TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448; STEELWORKERS V.
AMERICAN MFG. CO., 363 U.S. 564; STEELWORKERS V. WARRIOR & GULF CO.,
363 U.S. 574; STEELWORKERS V. ENTERPRISE CORP., 363 U.S. 593. 

FN2  IN TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S. 95, WE HELD THAT
A STRIKE OVER A DISPUTE WHICH A CONTRACT PROVIDES SHALL BE SETTLED
EXCLUSIVELY BY BINDING ARBITRATION IS A BREACH OF CONTRACT DESPITE THE
ABSENCE OF A NO-STRIKE CLAUSE, SAYING, AT P. 105:  "TO HOLD OTHERWISE
WOULD OBVIOUSLY DO VIOLENCE TO ACCEPTED PRINCIPLES OF TRADITIONAL
CONTRACT LAW.  EVEN MORE IN POINT, A CONTRARY VIEW WOULD BE COMPLETELY
AT ODDS WITH THE BASIC POLICY OF NATIONAL LABOR LEGISLATION TO PROMOTE
THE ARBITRAL PROCESS AS A SUBSTITUTE FOR ECONOMIC WARFARE."  AND IN
BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER R. CO., 353 U.S. 30,
39, WE RECOGNIZED THAT ALLOWING A STRIKE OVER AN ARBITRABLE DISPUTE
WOULD EFFECTIVELY "DEFEAT THE JURISDICTION" OF THE ARBITRATOR. 

FN3  353 U.S., AT 40. 

FN4  ID., AT 41. 

FN5  SEE, E.G., S. REP. NO. 163, 72D CONG., 1ST SESS., P. 18;
FRANKFURTER AND GREENE, THE LABOR INJUNCTION, PP. 24-46, 200, 202. 

FN6  IT IS WORTH REPEATING THAT THE RAILWAY LABOR ACT INCORPORATES NO
EXPRESS PROHIBITION OF STRIKES OVER "MINOR DISPUTES." 

FN7  ANTE, P. 205. 

FN8  ANTE, P. 205. 

FN9  NATIONAL LABOR RELATIONS ACT, SEC. 10(H), 61 STAT. 149, 29
U.S.C. SEC. 160(H). 

FN10  61 STAT. 155, 29 U.S.C. SEC. 178. 

FN11  61 STAT. 158, 29 U.S.C. SEC. 186(E). 

FN12  SECTION 301(E), 61 STAT. 157, 29 U.S.C. SEC. 185(E), ALSO
MENTIONED BY THE COURT, HAS NO BEARING ON INJUNCTION PROBLEMS.  IT
REPEALS, FOR ITS PURPOSES, SEC. 6 OF THE NORRIS-LAGUARDIA ACT, WHICH
DEALS WITH AGENCY RESPONSIBILITY FOR CONCERTED ACTIVITIES.  ITS ONLY
RELEVANCE HERE IS IN SHOWING WHAT IS CLEAR ANYWAY:  THAT SEC. 301
EFFECTED NO REPEAL OF THE ANTI-INJUNCTION PROVISIONS OF NORRIS
LAGUARDIA. 

FN13  ANTE, P. 205, N. 19. 

FN14  29 U.S.C. SEC. 187. 

FN15  SEE II LEG.  HIST.  1323-1400; I LEG.  HIST.  571. 

FN16  I LEG.  HIST.  221-222. 

FN17  I LEG.  HIST.  279-280. 

FN18  THERE IS NOTHING IN ANY COMMITTEE REPORT, OR IN ANY FLOOR
DEBATE, WHICH EVEN INTIMATES A CONFINEMENT OF SEC. 301 REMEDIES TO
DAMAGES IN CASES INVOLVING CONCERTED ACTIVITIES.  THE ONLY BIT OF
LEGISLATIVE HISTORY WHICH COULD IS THE STATEMENT OF SENATOR TAFT,
QUOTED BY THE COURT AT NOTE 27 OF ITS OPINION, WHICH HE INSERTED INTO
THE CONGRESSIONAL RECORD.  WHAT LITTLE SIGNIFICANCE THAT ISOLATED
INSERTION MIGHT HAVE HAD HAS, OF COURSE, BEEN LAID TO REST BY LINCOLN
MILLS. 

FN19  SECTION 4 COMMENCES:  "NO COURT OF THE UNITED STATES SHALL HAVE
JURISDICTION TO ISSUE ANY RESTRAINING ORDER  ...  ." 

FN20  MCCARROLL V. LOS ANGELES COUNTY DISTRICT COUNCIL, 49 CAL. 2D
45, 315 P.2D 322. 

FN21  COMPARE NOTE 19, SUPRA, WITH THE LANGUAGE OF THE REMOVAL
STATUTE, 28 U.S.C. SEC. 1441, ALLOWING REMOVAL IN CASES "OF WHICH THE
DISTRICT COURTS OF THE UNITED STATES HAVE ORIGINAL JURISDICTION." 

FN22 SEE NORRIS-LAGUARDIA ACT, SEC. 8, 47 STAT. 72, 29 U.S.C. SEC.
108. 

FN23  THE COURT ACKNOWLEDGES, OF COURSE, THAT AN EMPLOYER MAY OBTAIN
AN ORDER DIRECTING A UNION TO COMPLY WITH ITS CONTRACT TO ARBITRATE. 
CONSISTENTLY WITH WHAT WE SAID IN LUCAS, SUPRA, NOTE 2, A STRIKE IN THE
FACE OF SUCH AN ORDER WOULD RISK A CHARGE OF CONTEMPT.    FN24  SEE
ATKINSON V. SINCLAIR RFG.  CO., DECIDED THIS DAY, POST, P. 238. 
..END :















IN RE MCCONNELL 370 U.S. 230 


NO. 498.  ARGUED APRIL 10, 1962 - DECIDED JUNE 18, 1962 - 294 F.2D 310,
REVERSED. 


UNDER 18 U.S.C. SEC. 401 AND FEDERAL RULE OF CRIMINAL PROCEDURE 42(A),
PETITIONER WAS SUMMARILY TRIED AND CONVICTED BY THE TRIAL JUDGE OF
CRIMINAL CONTEMPT FOR CONDUCT DURING A TRIAL IN WHICH PETITIONER
REPRESENTED THE PLAINTIFF IN A SUIT UNDER THE CLAYTON ACT FOR TREBLE
DAMAGES FOR AN ALLEGED CONSPIRACY TO DESTROY THE PLAINTIFF'S BUSINESS
BY RESTRAINING AND MONOPOLIZING TRADE.  AT THE VERY OUTSET OF THE
TRIAL, THE JUDGE HAD RULED ERRONEOUSLY THAT THE PLAINTIFF'S COUNSEL
COULD NOT TRY TO PROVE THE CONSPIRACY CHARGE; BUT, IN ORDER TO COMPLY
WITH FEDERAL RULE OF CIVIL PROCEDURE 43(C) AND THUS PRESERVE HIS
CLIENT'S RIGHTS ON APPEAL, PETITIONER IN THE PRESENCE OF THE JURY
PERSISTED IN ASKING QUESTIONS INTENDED TO LAY THE PROPER FOUNDATION FOR
OFFERS OF PROOF OF CONSPIRACY.  THE JUDGE ORDERED PETITIONER TO STOP
DOING SO; BUT PETITIONER INSISTED THAT HE HAD A RIGHT TO DO SO AND SAID
HE WOULD CONTINUE TO DO SO "UNLESS SOME BAILIFF STOPS US."  HOWEVER, A
RECESS WAS THEN CALLED AND THEREAFTER PETITIONER ASKED NO MORE OF THE
FORBIDDEN QUESTIONS.  HELD: THERE WAS NOTHING IN THIS CONDUCT
SUFFICIENTLY DISRUPTIVE OF THE TRIAL COURT'S BUSINESS TO "OBSTRUCT THE
ADMINISTRATION OF JUSTICE," WITHIN THE MEANING OF 18 U.S.C. SEC. 401,
AND A JUDGMENT SUSTAINING THE CONVICTION IS REVERSED.  PP. 230-236. 

IN RE MCCONNELL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER THOMAS C. MCCONNELL, A LAWYER, WAS SUMMARILY FOUND
GUILTY OF CONTEMPT OF COURT FOR STATEMENTS MADE WHILE REPRESENTING THE
PARMELEE TRANSPORTATION COMPANY IN AN ANTITRUST SUIT FOR TREBLE DAMAGES
AND AN INJUNCTION.  THE COMPLAINT CHARGED THAT A NUMBER OF DEFENDANTS
HAD UNLAWFULLY CONSPIRED TO DESTROY PARMELEE'S BUSINESS BY RESTRAINING
AND MONOPOLIZING TRADE IN VIOLATION OF THE SHERMAN ACT.  (FN1)
PETITIONER AND HIS CO-COUNSEL, LEE A. FREEMAN, HAD DONE EXTENSIVE
PRETRIAL PREPARATION ON THE ISSUE OF CONSPIRACY WHICH WAS THE HEART OF
THEIR CASE.  AT THE VERY OUTSET OF THE TRIAL, HOWEVER, THE DISTRICT
JUDGE ON HIS OWN MOTION REFUSED TO PERMIT COUNSEL TO TRY TO PROVE THEIR
CONSPIRACY CHARGE, HOLDING THAT THEY MUST FIRST PROVE IN A WHOLLY
SEPARATE TRIAL THAT DEFENDANTS' ACTIONS HAD RESULTED IN AN ECONOMIC
INJURY TO THE PUBLIC - AN ERRONEOUS HOLDING SINCE WE HAVE HELD THAT THE
RIGHT OF RECOVERY OF A PLAINTIFF IN A TREBLE DAMAGE ANTITRUST CASE DOES
NOT DEPEND AT ALL ON PROVING AN ECONOMIC INJURY TO THE PUBLIC.  (FN2) 

CUT OFF BY THE JUDGE'S ERRONEOUS RULING FROM TRIAL OF THE BASIC ISSUE
OF CONSPIRACY AND WISHING TO PROVIDE A RECORD WHICH WOULD ALLOW THIS
RULING TO BE REVIEWED BY THE COURT OF APPEALS, COUNSEL FOR PARMELEE
ASKED COUNSEL FOR DEFENDANTS TO STIPULATE THAT PLAINTIFF WOULD HAVE
INTRODUCED CERTAIN EVIDENCE OF CONSPIRACY HAD IT BEEN ALLOWED TO DO SO.
DEFENSE COUNSEL REFUSED TO STIPULATE, HOWEVER, INSISTING THAT
PARMELEE'S COUNSEL PREPARE THEIR RECORD BY FOLLOWING THE PROCEDURE SET
OUT IN RULE 43(C) OF THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH
REQUIRES THAT BEFORE AN OFFER OF PROOF IS MADE QUESTIONS UPON WHICH THE
OFFER IS BASED MUST FIRST BE ASKED IN THE PRESENCE OF THE JURY.  (FN3)
UNWILLING TO RISK DISMISSAL OF THEIR APPEAL FOR FAILURE TO FOLLOW RULE
43(C), PARMELEE'S COUNSEL PROCEEDED TO PRODUCE AND QUESTION WITNESSES
IN THE PRESENCE OF THE JURY IN ORDER TO LAY THE PROPER FOUNDATION FOR
THEIR OFFERS OF PROOF OF CONSPIRACY.  BUT DURING THE PROCESS OF THIS
QUESTIONING THE JUDGE ORDERED IT STOPPED AND DIRECTED THAT ANY FURTHER
OFFERS OF PROOF BE MADE WITHOUT FIRST HAVING ASKED QUESTIONS OF
WITNESSES IN THE PRESENCE OF THE JURY.  THIS RULING PLACED PARMELEE'S
COUNSEL IN QUITE A DILEMMA BECAUSE DEFENSE COUNSEL WAS STILL INSISTING
THAT ALL OFFERS OF PROOF BE MADE IN STRICT COMPLIANCE WITH RULE 43(C)
AND THERE WAS NO WAY OF KNOWING WITH CERTAINTY WHETHER THE COURT OF
APPEALS WOULD TREAT THE TRIAL COURT'S ORDER TO DISPENSE WITH QUESTIONS
BEFORE THE JURY AS AN EXCUSE FOR FAILURE TO COMPLY WITH THE RULE. 
PETITIONER THEREFORE NOT ONLY SOUGHT TO MAKE CLEAR TO THE COURT THAT HE
THOUGHT DEFENSE COUNSEL'S OBJECTION WAS "RIGHT" (FN4) BUT ALSO
REPEATEDLY INSISTED THAT HE BE ALLOWED TO MAKE HIS OFFERS OF PROOF IN
COMPLIANCE WITH THE RULE.  (FN5)  FOLLOWING THE TRIAL THE JUDGE CHARGED
PETITIONER AND HIS CO-COUNSEL FREEMAN IN A NUMBER OF SPECIFICATIONS
WITH BEING GUILTY OF CONTEMPTUOUS CONDUCT DURING THE COURSE OF THE
TRIAL.  AFTER SEPARATE HEARINGS BOTH LAWYERS WERE SUMMARILY FOUND
GUILTY BY THE TRIAL JUDGE ON ALL SPECIFICATIONS.  BOTH APPEALED TO THE
COURT OF APPEALS, WHICH REVERSED ALL OF FREEMAN'S CONVICTIONS, (FN6)
REVERSED TWO OF PETITIONER MCCONNELL'S CONVICTIONS, BUT, WITH JUDGE
DUFFY DISSENTING, SUSTAINED THE CONVICTION OF PETITIONER ON
SPECIFICATION 6 - THE SPECIFICATION BASED ON PETITIONER'S INSISTENCE
THAT HE BE ALLOWED TO MAKE OFFERS OF PROOF IN COMPLIANCE WITH RULE
43(C).  (FN7)  EVEN AS TO THIS CONVICTION, HOWEVER, THE COURT OF
APPEALS HELD THAT THE JAIL SENTENCE IMPOSED BY THE TRIAL JUDGE SHOULD
BE REDUCED TO A FINE OF $100.  AS IN OFFUTT V. UNITED STATES, (FN8) THE
"IMPORTANCE OF ASSURING ALERT SELF-RESTRAINT IN THE EXERCISE BY
DISTRICT JUDGES OF THE SUMMARY POWER FOR PUNISHING CONTEMPT" PROMPTED
US TO BRING THE CASE HERE.  (FN9) 

THE STATUTE UNDER WHICH PETITIONER WAS SUMMARILY CONVICTED OF
CONTEMPT IS 18 U.S.C. SEC.  401, WHICH PROVIDES THAT: 

"A COURT OF THE UNITED STATES SHALL HAVE POWER TO PUNISH BY FINE OR
IMPRISONMENT, AT ITS DISCRETION, SUCH CONTEMPT OF ITS AUTHORITY, AND
NONE OTHER, AS: 

"(1)  MISBEHAVIOR OF ANY PERSON IN ITS PRESENCE OR SO NEAR THERETO AS
TO OBSTRUCT THE ADMINISTRATION OF JUSTICE  ...  ." 

THIS SECTION IS BASED ON AN ACT PASSED IN 1831 (FN10) IN ORDER TO
CORRECT SERIOUS ABUSES OF THE SUMMARY CONTEMPT POWER THAT HAD GROWN UP
AND WAS INTENDED AS A "DRASTIC DELIMITATION  ...  OF THE BROAD
UNDEFINED POWER OF THE INFERIOR FEDERAL COURTS UNDER THE ACT OF 1789,"
(FN11) REVEALING "A CONGRESSIONAL INTENT TO SAFEGUARD CONSTITUTIONAL
PROCEDURES BY LIMITING COURTS, AS CONGRESS IS LIMITED IN CONTEMPT
CASES, TO 'THE LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED.'" 
(FN12) "THE EXERCISE BY FEDERAL COURTS OF ANY BROADER CONTEMPT POWER
THAN THIS," WE HAVE SAID, "WOULD PERMIT TOO GREAT INROADS ON THE
PROCEDURAL SAFEGUARDS OF THE BILL OF RIGHTS, SINCE CONTEMPTS ARE
SUMMARY IN THEIR NATURE, AND LEAVE DETERMINATION OF GUILT TO A JUDGE
RATHER THAN A JURY."  (FN13) AND WE HELD LONG AGO, IN EX PARTE
HUDGINGS, (FN14) THAT WHILE THIS STATUTE UNDOUBTEDLY SHOWS A PURPOSE TO
GIVE COURTS SUMMARY POWERS TO PROTECT THE ADMINISTRATION OF JUSTICE
AGAINST IMMEDIATE INTERRUPTION OF COURT BUSINESS, IT ALSO MEANS THAT
BEFORE THE DRASTIC PROCEDURES OF THE SUMMARY CONTEMPT POWER MAY BE
INVOKED TO REPLACE THE PROTECTIONS OF ORDINARY CONSITITUTIONAL
PROCEDURES THERE MUST BE AN ACTUAL OBSTRUCTION OF JUSTICE: 

"AN OBSTRUCTION TO THE PERFORMANCE OF JUDICIAL DUTY RESULTING FROM AN
ACT DONE IN THE PRESENCE OF THE COURT IS, THEN, THE CHARACTERISTIC UPON
WHICH THE POWER TO PUNISH FOR CONTEMPT MUST REST.  THIS BEING TRUE, IT
FOLLOWS THAT THE PRESENCE OF THAT ELEMENT MUST CLEARLY BE SHOWN IN
EVERY CASE WHERE THE POWER TO PUNISH FOR CONTEMPT IS EXERTED  ...  ." 

THUS THE QUESTION IN THIS CASE COMES DOWN TO WHETHER IT CAN "CLEARLY
BE SHOWN" ON THIS RECORD THAT THE PETITIONER'S STATEMENTS WHILE
ATTEMPTING TO MAKE HIS OFFERS OF PROOF ACTUALLY OBSTRUCTED THE DISTRICT
JUDGE IN "THE PERFORMANCE OF JUDICIAL DUTY." 

THE COURT OF APPEALS ANSWERED THIS QUESTION BY SUSTAINING
SPECIFICATION 6 ONLY ON THE BASIS OF PETITIONER'S LAST SENTENCE IN THE
COLLOQUY SET OUT IN THE SPECIFICATION.  THAT SPECIFICATION READS: 

"ON APRIL 27, 1960, IN THE PRESENCE AND HEARING OF THE JURY, AFTER
THE COURT HAD INSTRUCTED THE ATTORNEYS FOR PLAINTIFF TO REFRAIN FROM
REPEATEDLY ASKING QUESTIONS ON SUBJECTS WHICH THE COURT HAD RULED
(WERE) NOT ADMISSIBLE, IN THE PRESENCE OF THE JURY AS DISTINGUISHED
FROM AN OFFER OF PROOF OUTSIDE THE PRESENCE OF THE JURY, THE FOLLOWING
OCCURRED: 

"'BY MR. MCCONNELL:  NOW YOU ARE TRYING TO TELL US WE CAN'T ASK THESE
QUESTIONS.  WE HAVE A RIGHT TO ASK THESE QUESTIONS, AND UNTIL WE ARE
STOPPED FROM ASKING THESE QUESTIONS WE ARE GOING TO ASK THEM, BECAUSE
IT IS IN OUR PREROGATIVE IN DOING IT. 

"'BY THE COURT:  I AM NOW STOPPING YOU FROM ASKING THE QUESTIONS
ABOUT CONVERSATIONS WITH MR. CROSS, BECAUSE I HAVE RULED SPECIFICALLY,
DEFINITELY AND COMPLETELY THAT IT IS NOT AN ISSUE IN THIS CASE. 

"'BY MR. MCCONNELL:  WE HAVE A RIGHT TO ASK THEM. 

"'BY THE COURT:  YOU CAN OFFER PROOF ON IT. 

"'BY MR. MCCONNELL:  WE HAVE A RIGHT TO ASK QUESTIONS WHICH WE OFFER
ON THIS ISSUE, AND YOUR HONOR CAN SUSTAIN THEIR OBJECTION TO THEM.  WE
DON'T HAVE A RIGHT TO READ THE ANSWERS, BUT WE HAVE A RIGHT TO ASK THE
QUESTIONS, AND WE PROPOSE TO DO SO UNLESS SOME BAILIFF STOPS US.'" 

THE RECORD SHOWS THAT AFTER THIS COLLOQUY PETITIONER'S CO-COUNSEL
ASKED FOR A SHORT RECESS, THAT FOLLOWING THIS RECESS PETITIONER DID NOT
CONTINUE TO ASK QUESTIONS WHICH THE JUDGE HAD FORBIDDEN AND THAT IN
FACT HE DID NOT ASK ANY MORE SUCH QUESTIONS AGAIN THROUGHOUT THE
REMAINDER OF THE TRIAL.  WE AGREE WITH JUDGE DUFFY WHO DISSENTED BELOW
THAT THERE WAS NOTHING IN PETITIONER'S CONDUCT SUFFICIENTLY DISRUPTIVE
OF THE TRIAL COURT'S BUSINESS TO BE AN OBSTRUCTION OF JUSTICE.  IT IS
TRUE THAT PETITIONER STATED THAT COUNSEL HAD A RIGHT TO ASK QUESTIONS
THAT THE JUDGE DID NOT WANT ASKED AND THAT "WE PROPOSE TO DO SO UNLESS
SOME BAILIFF STOPS US."  THE FACT REMAINS, HOWEVER, THAT THE BAILIFF
NEVER HAD TO INTERRUPT THE TRIAL BY ARRESTING PETITIONER, FOR THE
SIMPLE REASON THAT AFTER THIS STATEMENT PETITIONER NEVER DID ASK ANY
MORE QUESTIONS ALONG THE LINE WHICH THE JUDGE HAD FORBIDDEN.  AND WE
CANNOT AGREE THAT A MERE STATEMENT BY A LAWYER OF HIS INTENTION TO
PRESS HIS LEGAL CONTENTION UNTIL THE COURT HAS A BAILIFF STOP HIM CAN
AMOUNT TO AN OBSTRUCTION OF JUSTICE THAT CAN BE PUNISHED UNDER THE
LIMITED POWERS OF SUMMARY CONTEMPT WHICH CONGRESS HAS GRANTED TO THE
FEDERAL COURTS.  THE ARGUMENTS OF A LAWYER IN PRESENTING HIS CLIENT'S
CASE STRENUOUSLY AND PERSISTENTLY CANNOT AMOUNT TO A CONTEMPT OF COURT
SO LONG AS THE LAWYER DOES NOT IN SOME WAY CREATE AN OBSTRUCTION WHICH
BLOCKS THE JUDGE IN THE PERFORMANCE OF HIS JUDICIAL DUTY.  THE
PETITIONER CREATED NO SUCH OBSTACLE HERE. 

WHILE WE APPRECIATE THE NECESSITY FOR A JUDGE TO HAVE THE POWER TO
PROTECT HIMSELF FROM ACTUAL OBSTRUCTION IN THE COURTROOM, OR EVEN FROM
CONDUCT SO NEAR TO THE COURT AS ACTUALLY TO OBSTRUCT JUSTICE, IT IS
ALSO ESSENTIAL TO A FAIR ADMINISTRATION OF JUSTICE THAT LAWYERS BE ABLE
TO MAKE HONEST GOOD-FAITH EFFORTS TO PRESENT THEIR CLIENTS' CASES.  AN
INDEPENDENT JUDICIARY AND A VIGOROUS, INDEPENDENT BAR ARE BOTH
INDISPENSABLE PARTS OF OUR SYSTEM OF JUSTICE.  TO PRESERVE THE KIND OF
TRIALS THAT OUR SYSTEM ENVISAGES, CONGRESS HAS LIMITED THE SUMMARY
CONTEMPT POWER VESTED IN COURTS TO THE LEAST POSSIBLE POWER ADEQUATE TO
PREVENT ACTUAL OBSTRUCTION OF JUSTICE, AND WE THINK THAT THAT POWER DID
NOT EXTEND TO THIS CASE.  REVERSED. 

FN1  THIS ACTION WAS BROUGHT UNDER THE CLAYTON ACT, SECS. 4 AND 16,
38 STAT. 731, 15 U.S.C.  SECS. 15, 26, AND CHARGED VIOLATIONS OF SECS.
1 AND 2 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. SECS.
1, 2. 

FN2  RADIANT BURNERS, INC., V. PEOPLES GAS LIGHT & COKE CO., 364 U.S.
656, 660; KLOR'S, INC., V. BROADWAY-HALE STORES, INC., 359 U.S. 207. 
SEE ALSO RADOVICH V. NATIONAL FOOTBALL LEAGUE, 352 U.S. 445. 

FN3  RULE 43(C) PROVIDES IN PART: 

"IN AN ACTION TRIED BY A JURY, IF AN OBJECTION TO A QUESTION
PROPOUNDED TO A WITNESS IS SUSTAINED BY THE COURT, THE EXAMINING
ATTORNEY MAY MAKE A SPECIFIC OFFER OF WHAT HE EXPECTS TO PROVE BY THE
ANSWER OF THE WITNESS.  THE COURT MAY REQUIRE THE OFFER TO BE MADE OUT
OF THE HEARING OF THE JURY.  THE COURT MAY ADD SUCH OTHER OR FURTHER
STATEMENT AS CLEARLY SHOWS THE CHARACTER OF THE EVIDENCE, THE FORM IN
WHICH IT WAS OFFERED, THE OBJECTION MADE, AND THE RULING THEREON  ...
." 

FN4  SINCE OUR DISPOSITION OF THIS CASE DOES NOT TURN ON WHETHER
PETITIONER WAS CORRECT IN THINKING THAT RULE 43(C) ABSOLUTELY REQUIRED
THAT ALL OFFERS OF PROOF IN JURY TRIALS BE BASED ON QUESTIONS BEFORE
THE JURY, WE EXPRESS NO OPINION ON THAT QUESTION. 

FN5  THE DISTRICT JUDGE DID NOT CHANGE HIS RULING AND ULTIMATELY GAVE
JUDGMENT FOR DEFENDANTS ON THE GROUNDS THAT PLAINTIFF HAD NOT PROVED
PUBLIC ECONOMIC INJURY AND THAT THE FACTS ALLEGED IN THE COMPLAINT AND
THE PROOF OFFERED AT THE TRIAL DID NOT CONSTITUTE A VIOLATION OF THE
ANTITURST LAWS.  186 F. SUPP. 533.  THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT AFFIRMED THE DECISION ON THIS LATTER GROUND.  292 F.2D
794. 

FN6  292 F.2D 806. 

FN7  294 F.2D 310. 

FN8  348 U.S. 11, 13. 

FN9  368 U.S. 936. 

FN10  4 STAT. 487.  THE PRESENT WORKING OF SEC. 401 COMES FROM THE
1948 REVISION AND CODIFICATION OF TITLE 18.  62 STAT. 701. 

FN11  NYE V. UNITED STATES, 313 U.S. 33, 45. 

FN12  IN RE MICHAEL, 326 U.S. 224, 227. 

FN13  IBID. 

FN14  249 U.S. 378, 383. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

WITH RESPECT TO THE CONTEMPT COUNT THAT WAS SUSTAINED BY THE COURT OF
APPEALS, THIS CASE INVOLVES NOTHING MORE THAN AN ORDINARY EXERCISE OF
THE DISTRICT COURT'S CONTEMPT POWER IN AID OF MAINTAINING DISCIPLINE
AND DECORUM IN THE COURTROOM.  THE MOST, I THINK, THAT COULD
APPROPRIATELY BE SAID OF THE CONVICTION ON THIS COUNT IS THAT
PETITIONER'S UNLAWYER-LIKE CONDUCT DID NOT MERIT A JAIL SENTENCE.  THE
COURT OF APPEALS HAS REMOVED ALL BASIS FOR CRITICISM ON THAT SCORE BY
REDUCING THE SENTENCE TO A $100 FINE.  IN OTHER RESPECTS ITS OPINION
DISPLAYS AN ALERT REGARD FOR THE UNDOUBTED FACT THAT THE CONTEMPT POWER
SHOULD ALWAYS BE EXERCISED CIRCUMSPECTLY AND DISPASSIONATELY,
PARTICULARLY WHEN CALLED INTO PLAY BY THE CONDUCT OF AN ATTORNEY IN THE
COURSE OF SHARPLY CONTESTED LITIGATION. 

I CAN HARDLY BELIEVE THAT THE COURT INTENDS ITS OPINION TO MEAN THAT
ONLY A PHYSICAL OBSTRUCTION OF PENDING JUDICIAL PROCEEDINGS IS
PUNISHABLE UNDER 18 U.S.C. SEC. 401.  FOR A COURT'S POWER TO PUNISH
SUMMARILY FOR CONTEMPT HAS ALWAYS BEEN AVAILABLE AS A SANCTION AGAINST
THE USE OF ABUSIVE AND INSULTING LANGUAGE IN A COURTROOM.  SEE, E.G.,
OFFUTT V. UNITED STATES, 348 U.S. 11; FISHER V. PACE, 336 U.S. 155, 159
160; EX PARTE TERRY, 128 U.S. 289, 307-309.  AND IT CAN SCARCELY BE
SUPPOSED THAT CONGRESS' ENACTMENT OF 18 U.S.C.  SEC. 401 WAS INTENDED
TO ABROGATE THIS POWER, EVEN AS THE FORERUNNER TO THAT SECTION WAS
CONSTRUED IN IN RE MICHAEL, 326 U.S. 224, 228.  CF. EX PARTE HUDGINGS,
249 U.S. 378, 383.    THIS ROUTINE INTRACIRCUIT AFFAIR PRESENTS NOTHING
CALLING FOR THE EXERCISE OF THIS COURT'S SUPERVISORY POWER, AND THE
CASE WOULD HAVE BEEN MUCH BETTER LEFT WITH THE COURT OF APPEALS BY A
DENIAL OF CERTIORARI. 

I WOULD AFFIRM. 
..END :













ATKINSON V. SINCLAIR REFINING CO. 370 U.S. 238 


NO. 430.  ARGUED APRIL 18, 1962 - DECIDED JUNE 18, 1962 - 290 F.2D 312,
AFFIRMED IN PART AND REVERSED IN PART. 


1.  UNDER SEC. 301 OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, AN
EMPLOYER SUED AN INTERNATIONAL UNION AND ITS LOCAL UNION IN A FEDERAL
DISTRICT COURT FOR DAMAGES FOR A STRIKE OR WORK STOPPAGE CAUSED BY THEM
IN VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT.  THE AGREEMENT
PROVIDED FOR A GRIEVANCE PROCEDURES CULMINATING, IF REQUESTED BY THE
UNION, IN COMPULSORY, FINAL AND BINDING ARBITRATION OF EMPLOYEE
GRIEVANCES REGARDING WAGES, HOURS AND WORKING CONDITIONS, AND THE UNION
PROMISED NOT TO STRIKE OVER SUCH MATTERS.  THE DEFENDANTS MOVED TO
DISMISS THE COMPLAINT ON VARIOUS GROUNDS AND TO STAY THE ACTION, FOR
THE REASONS THAT (1) ALL OF THE ISSUES IN THE SUIT WERE REFERABLE TO
ARBITRATION UNDER THE CONTRACT, AND (2) IMPORTANT ISSUES IN THE SUIT
WERE ALSO INVOLVED IN CERTAIN GRIEVANCES FILED BY EMPLOYEES AND SAID TO
BE IN ARBITRATION UNDER THE CONTRACT.  HELD: THIS COUNT OF THE
COMPLAINT SHOULD NOT BE DISMISSED OR STAYED.  PP. 241-245. 

(A)  THIS COURT OF THE COMPLAINT PROPERLY STATES A CAUSE OF ACTION
UNDER SEC. 301 AND IS TO BE GOVERNED BY FEDERAL LAW.  P. 241. 

(B)  THE CONTRACT HERE INVOLVED IS NOT SUSCEPTIBLE TO A CONSTRUCTION
BINDING THE EMPLOYER TO ARBITRATE ITS CLAIM FOR DAMAGES AGAINST THE
UNION FOR BREACH OF THE UNDERTAKING NOT TO STRIKE.  PP. 241-243. 

(C)  IT DOES NOT APPEAR FROM THE RECORD THAT THE ARBITRATOR'S AWARD
ON PENDING EMPLOYEE GRIEVANCES WOULD DETERMINE ANY SIGNIFICANT ISSUE IN
THE DAMAGE SUIT.  PP. 243-245. 

2.  BASING JURISDICTION ON DIVERSITY OF CITIZENSHIP, THE EMPLOYER, IN
ANOTHER COUNT OF THE SAME COMPLAINT, ALSO SOUGHT DAMAGES FOR THE SAME
STRIKE OR WORK STOPPAGE FROM 24 INDIVIDUAL EMPLOYEES, EACH OF WHOM WAS
ALLEGED TO HAVE BEEN AN AGENT OF THE UNION AND TO HAVE BEEN ACTING IN A
REPRESENTATIVE CAPACITY WHEN HE ALLEGEDLY FORMENTED OR ASSISTED AND
PARTICIPATED IN THE STRIKE OR WORK STOPPAGE IN VIOLATION OF THE
COLLECTIVE BARGAINING CONTRACT.  HELD:  UNDER SEC. 301, THIS COUNT OF
THE COMPLAINT WAS GOVERNED BY FEDERAL, NOT STATE, LAW AND IT WAS
PROPERLY DISMISSED FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF COULD
BE GRANTED, SINCE IT ACTUALLY WAS BASED ON THE UNION'S BREACH OF ITS
CONTRACT, AND A UNION'S OFFICERS OR MEMBERS CANNOT BE HELD PERSONALLY
LIABLE FOR THE UNION'S ACTIONS.  PP. 245-249. 

ATKINSON ET AL. V. SINCLAIR REFINING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT COMPANY EMPLOYS AT ITS REFINERY IN EAST CHICAGO,
INDIANA, APPROXIMATELY 1,700 MEN, FOR WHOM THE PETITIONING
INTERNATIONAL UNION AND ITS LOCAL ARE BARGAINING AGENTS, AND 24 OF WHOM
ARE ALSO PETITIONERS HERE.  IN EARLY FEBRUARY 1959, THE RESPONDENT
COMPANY DOCKED THREE OF ITS EMPLOYEES AT THE EAST CHICAGO REFINERY A
TOTAL OF $2.19.  ON FEBRUARY 13 AND 14, 999 OF THE 1,700 EMPLOYEES
PARTICIPATED IN A STRIKE OR WORK STOPPAGE, OR SO THE COMPLAINT
ALLEGES.  ON MARCH 12, THE COMPANY FILED THIS SUIT FOR DAMAGES AND AN
INJUNCTION, NAMING THE INTERNATIONAL AND ITS LOCAL AS DEFENDANTS,
TOGETHER WITH 24 INDIVIDUAL UNION MEMBER-EMPLOYEES. 

COUNT I OF THE COMPLAINT, WHICH WAS IN THREE COUNTS, STATED A CAUSE
OF ACTION UNDER SEC. 301 OF THE TAFT-HARTLEY ACT (29 U.S.C. SEC. 185)
AGAINST THE INTERNATIONAL AND ITS LOCAL.  IT ALLEGED AN EXISTING
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE INTERNATIONAL AND THE
COMPANY CONTAINING, AMONG OTHER MATTERS, A PROMISE BY THE UNION NOT TO
STRIKE OVER ANY CAUSE WHICH COULD BE THE SUBJECT OF A GRIEVANCE UNDER
OTHER PROVISIONS OF THE CONTRACT.  IT WAS ALLEGED THAT THE
INTERNATIONAL AND THE LOCAL CAUSED THE STRIKE OR WORK STOPPAGE
OCCURRING ON FEBRUARY 13 AND 14 AND THAT THE STRIKE WAS OVER THE PAY
CLAIMS OF THREE EMPLOYEES IN THE AMOUNT OF $2.19, WHICH CLAIMS WERE
PROPERLY SUBJECT TO THE GRIEVANCE PROCEDURE PROVIDED BY THE CONTRACT. 
THE COMPLAINT ASKED FOR DAMAGES IN THE AMOUNT OF $12,500 FROM THE
INTERNATIONAL AND THE LOCAL. 

COUNT II OF THE COMPLAINT PURPORTED TO INVOKE THE DIVERSITY
JURISDICTION OF THE DISTRICT COURT.  IT ASKED JUDGMENT IN THE SAME
AMOUNT AGAINST 24 INDIVIDUAL EMPLOYEES, EACH OF WHOM WAS ALLEGED TO BE
A COMMITTEEMAN OF THE LOCAL UNION AND AN AGENT OF THE INTERNATIONAL,
AND RESPONSIBLE FOR REPRESENTING THE INTERNATIONAL, THE LOCAL, AND
THEIR MEMBERS.  THE COMPLAINT ASSERTED THAT ON FEBRUARY 13 AND 14, THE
INDIVIDUALS, "CONTRARY TO THEIR DUTY TO PLAINTIFF TO ABIDE BY SAID
CONTRACT, AND MALICIOUSLY CONFEDERATING AND CONSPIRING TOGETHER TO
CAUSE THE PLAINTIFF EXPENSE AND DAMAGE, AND TO INDUCE BREACHES OF THE
SAID CONTRACT, AND TO INTERFERE WITH PERFORMANCE THEREOF BY THE SAID
LABOR ORGANIZATIONS AND THE AFFECTED EMPLOYEES, AND TO CAUSE BREACHES
THEREOF, INDIVIDUALLY AND AS OFFICERS, COMMITTEEMEN AND AGENTS OF THE
SAID LABOR ORGANIZATIONS, FORMENTED, ASSISTED AND PARTICIPATED IN A
STRIKE OR WORK STOPPAGE  ...  ." 

COUNT III OF THE COMPLAINT ASKED FOR AN INJUNCTION BUT THAT MATTER
NEED NOT CONCERN US HERE SINCE IT IS DISPOSED OF IN SINCLAIR REFINING
CO. V. ATKINSON, ANTE, P. 195, DECIDED THIS DAY. 

THE DEFENDANTS FILED A MOTION TO DISMISS THE COMPLAINT ON VARIOUS
GROUNDS AND A MOTION TO STAY THE ACTION FOR THE REASONS (1) THAT ALL OF
THE ISSUES IN THE SUIT WERE REFERABLE TO ARBITRATION UNDER THE
COLLECTIVE BARGAINING CONTRACT AND (2) THAT IMPORTANT ISSUES IN THE
SUIT WERE ALSO INVOLVED IN CERTAIN GRIEVANCES FILED BY EMPLOYEES AND
SAID TO BE IN ARBITRATION UNDER THE CONTRACT.  THE DISTRICT COURT
DENIED THE MOTION TO DISMISS COUNT I, DISMISSED COUNT II, AND DENIED
THE MOTION TO STAY (187 F. SUPP. 225).  THE COURT OF APPEALS UPHELD THE
REFUSAL TO DISMISS OR STAY COUNT I, BUT REVERSED THE DISMISSAL OF COUNT
II (290 F.2D 312), AND THIS COURT GRANTED CERTIORARI (368 U.S. 937). 

                                             I. 

WE HAVE CONCLUDED THAT COUNT I SHOULD NOT BE DISMISSED OR STAYED. 
COUNT I PROPERLY STATES A CAUSE OF ACTION UNDER SEC. 301 AND IS TO BE
GOVERNED BY FEDERAL LAW.  LOCAL 174 V. LUCAS FLOUR CO., 369 U.S. 95,
102-104; TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448.  UNDER
OUR DECISIONS, WHETHER OR NOT THE COMPANY WAS BOUND TO ARBITRATE, AS
WELL AS WHAT ISSUES IT MUST ARBITRATE, IS A MATTER TO BE DETERMINED BY
THE COURT ON THE BASIS OF THE CONTRACT ENTERED INTO BY THE PARTIES. 
"THE CONGRESS  ...  HAS BY SEC. 301 OF THE LABOR MANAGEMENT RELATIONS
ACT, ASSIGNED THE COURTS THE DUTY OF DETERMINING WHETHER THE RELUCTANT
PARTY HAS BREACHED HIS PROMISE TO ARBITRATE.  FOR ARBITRATION IS A
MATTER OF CONTRACT AND A PARTY CANNOT BE REQUIRED TO SUBMIT TO
ARBITRATION ANY DISPUTE WHICH HE HAS NOT AGREED SO TO SUBMIT."  UNITED
STEELWORKERS V. WARRIOR & GULF NAV. GO., 363 U.S. 574, 582.  SEE ALSO
UNITED STEELWORKERS V. AMERICAN MGF.  CO., 363 U.S. 564, 570-571
(CONCURRING OPINION).  WE THINK IT UNQUESTIONABLY CLEAR THAT THE
CONTRACT HERE INVOLVED IS NOT SUSCEPTIBLE TO A CONSTRUCTION THAT THE
COMPANY WAS BOUND TO ARBITRATE ITS CLAIM FOR DAMAGES AGAINST THE UNION
FOR BREACH OF THE UNDERTAKING NOT TO STRIKE. 

WHILE IT IS QUITE OBVIOUS FROM OTHER PROVISIONS OF THE CONTRACT (FN1)
THAT THE PARTIES DID NOT INTEND TO COMMIT ALL OF THEIR POSSIBLE
DISPUTES AND THE WHOLE SCOPE OF THEIR RELATIONSHIP TO THE GRIEVANCE AND
ARBITRATION PROCEDURES ESTABLISHED IN ARTICLE XXVI, (FN2) THAT ARTICLE
ITSELF IS DETERMINATIVE OF THE ISSUE IN THIS CASE SINCE IT PRECLUDES
ARBITRATION BOARDS FROM CONSIDERING ANY MATTERS OTHER THAN EMPLOYEE
GRIEVANCES.  (FN3)  AFTER DEFINING A GRIEVANCE AS "ANY DIFFERENCE
REGARDING WAGES, HOURS OR WORKING CONDITIONS BETWEEN THE PARTIES HERETO
OR BETWEEN THE EMPLOYER AND AN EMPLOYEE COVERED BY THIS WORKING
AGREEMENT," ARTICLE XXVI PROVIDES THAT THE PARTIES DESIRE TO SETTLE
EMPLOYEE GRIEVANCES FAIRLY AND QUICKLY AND THAT THEREFORE A STATED
PROCEDURE "MUST BE FOLLOWED."  THE INDIVIDUAL EMPLOYEE IS REQUIRED TO
PRESENT HIS GRIEVANCE TO HIS FOREMAN, AND IF NOT SATISFIED THERE, HE
MAY TAKE HIS GRIEVANCE TO THE PLANT SUPERINTENDENT WHO IS TO RENDER A
WRITTEN DECISION.  THERE IS ALSO PROVISION FOR SO-CALLED WORKMEN'S
COMMITTEES TO PRESENT GRIEVANCES TO THE LOCAL MANAGEMENT.  IF THE LOCAL
SUPERINTENDENT'S DECISION IS NOT ACCEPTABLE, THE MATTER IS TO BE
REFERRED FOR DISCUSSION BETWEEN THE PRESIDENT OF THE INTERNATIONAL AND
THE DIRECTOR OF INDUSTRIAL RELATIONS FOR THE COMPANY (OR THEIR
REPRESENTATIVES), AND FOR DECISION BY THE DIRECTOR ALONE.  IF THE
DIRECTOR'S DECISION IS DISPUTED, THEN "UPON REQUEST OF THE PRESIDENT OR
ANY DISTRICT DIRECTOR" OF THE INTERNATIONAL, A LOCAL ARBITRATION BOARD
MAY BE CONVENED AND THE MATTER FINALLY DECIDED BY THIS BOARD. 

ARTICLE XXVI THEN IMPOSES THE CRITICAL LIMITATION.  IT IS PROVIDED
THAT LOCAL ARBITRATION BOARDS "SHALL CONSIDER ONLY INDIVIDUAL OR LOCAL
EMPLOYEE OR LOCAL COMMITTEE GRIEVANCES ARISING UNDER THE APPLICATION OF
THE CURRENTLY EXISTING AGREEMENT."  THERE IS NOT A WORD IN THE
GRIEVANCE AND ARBITRATION ARTICLE PROVIDING FOR THE SUBMISSION OF
GRIEVANCES BY THE COMPANY.  INSTEAD, THERE IS THE EXPRESS, FLAT
LIMITATION THAT ARBITRATION BOARDS SHOULD CONSIDER ONLY EMPLOYEE
GRIEVANCES.  FURTHERMORE, THE ARTICLE EXPRESSLY PROVIDES THAT
ARBITRATION MAY BE INVOKED ONLY AT THE OPTION OF THE UNION.  AT NO
PLACE IN THE CONTRACT DOES THE UNION AGREE TO ARBITRATE AT THE BEHEST
OF THE COMPANY.  THE COMPANY IS TO TAKE ITS CLAIMS ELSEWHERE, WHICH IT
HAS NOW DONE. 

THE UNION MAKES A FURTHER ARGUMENT FOR A STAY.  FOLLOWING THE STRIKE,
AND BOTH BEFORE AND AFTER THE COMPANY FILED ITS SUIT, 14 OF THE 24
INDIVIDUAL DEFENDANTS FILED GRIEVANCES CLAIMING REIMBURSEMENT FOR PAY
WITHHELD BY THE EMPLOYER.  THE UNION ARGUES THAT EVEN THOUGH THE
COMPANY NEED NOT ARBITRATE ITS CLAIM FOR DAMAGES, IT IS BOUND TO
ARBITRATE THESE GRIEVANCES; AND THE ARBITRATOR, IN THE PROCESS OF
DETERMINING THE GRIEVANTS' RIGHT TO REIMBURSEMENT, WILL CONSIDER AND
DETERMINE ISSUES WHICH ALSO UNDERLIE THE COMPANY'S CLAIM FOR DAMAGES. 
THEREFORE, IT IS SAID THAT A STAY OF THE COURT ACTION IS APPROPRIATE. 

WE ARE NOT SATISFIED FROM THE RECORD NOW BEFORE US, HOWEVER, THAT ANY
SIGNIFICANT ISSUE IN THE DAMAGE SUIT WILL BE PRESENTED TO AND DECIDED
BY AN ARBITRATOR.  THE GRIEVANCES FILED SIMPLY CLAIMED REIMBURSEMENT
FOR PAY DUE EMPLOYEES FOR TIME SPENT AT REGULAR WORK OR PROCESSING
GRIEVANCES.  ALTHOUGH THE RECORD IS A GOOD DEAL LESS THAN CLEAR AND
ALTHOUGH NO ANSWER HAS BEEN FILED IN THIS CASE, IT WOULD APPEAR FROM
THE AFFIDAVITS OF THE PARTIES PRESENTED IN CONNECTION WITH THE MOTION
TO STAY THAT THE GRIEVANTS CLAIMED TO HAVE BEEN DISCIPLINED AS A RESULT
OF THE WORK STOPPAGE AND THAT THEY WERE CHALLENGING THIS DISCIPLINARY
ACTION.  THE COMPANY SHARPLY DENIES IN ITS BRIEF IN THIS COURT THAT ANY
EMPLOYEE WAS DISCIPLINED.  IN ANY EVENT, PRECISELY WHAT DISCIPLINE WAS
IMPOSED, UPON WHAT GROUNDS IT IS BEING ATTACKED BY THE GRIEVANTS, AND
THE CIRCUMSTANCES SURROUNDING THE WITHHOLDING OF PAY FROM THE EMPLOYEES
ARE UNEXPLAINED IN THE RECORD.  THE UNION'S BRIEF HERE STATES THAT THE
IMPORTANT ISSUE UNDERLYING THE ARBITRATION AND THE SUIT FOR DAMAGES IS
WHETHER THE GRIEVANTS INSTIGATED OR PARTICIPATED IN A WORK STOPPAGE
CONTRARY TO THE COLLECTIVE BARGAINING CONTRACT.  THIS THE COMPANY
DENIES AND IT ASSERTS THAT NO ISSUE IN THE DAMAGE SUIT WILL BE SETTLED
BY ARBITRATING THE GRIEVANCES. 

THE DISTRICT COURT MUST DECIDE WHETHER THE COMPANY IS ENTITLED TO
DAMAGES FROM THE UNION FOR BREACH OF CONTRACT.  THE ARBITRATOR, IF
ARBITRATION OCCURS, MUST AWARD OR DENY REIMBURSEMENT IN WHOLE OR IN
PART TO ALL OR SOME OF THE 14 EMPLOYEES.  HIS AWARD, STANDING ALONE,
OBVIOUSLY WOULD DETERMINE NO ISSUE IN THE DAMAGE SUIT.  IF HE AWARDED
REIMBURSEMENT TO THE EMPLOYEES AND IF IT COULD BE ASCERTAINED WITH ANY
ASSURANCE (FN4) THAT ONE OF HIS SUBSIDIARY FINDINGS WAS THAT THE 14 MEN
HAD NOT PARTICIPATED IN A FORBIDDEN WORK STOPPAGE - THE CRITICAL ISSUE
ACCORDING TO THE UNION'S BRIEF - THE COMPANY WOULD NEVERTHELESS NOT BE
FORECLOSED IN COURT SINCE, EVEN IF IT WERE BOUND BY SUCH A SUBSIDIARY
FINDING MADE BY THE ARBITRATOR, IT WOULD BE FREE TO PROVE ITS CASE IN
COURT THROUGH THE CONDUCT OF OTHER AGENTS OF THE UNION.  IN THIS STATE
OF THE RECORD, THE UNION HAS NOT MADE OUT ITS CASE FOR A STAY.  (FN5) 

FOR THE FOREGOING REASONS, THE LOWER COURTS PROPERLY DENIED THE
UNION'S MOTION TO DISMISS COUNT I OR STAY IT PENDING ARBITRATION OF THE
EMPLOYER'S DAMAGE CLAIM. 

                       II. 

WE TURN NOW TO COUNT II OF THE COMPLAINT, WHICH CHARGED 24 INDIVIDUAL
OFFICERS AND AGENTS OF THE UNION WITH BREACH OF THE COLLECTIVE
BARGAINING CONTRACT AND TORTIOUS INTERFERENCE WITH CONTRACTUAL
RELATIONS.  THE DISTRICT COURT HELD THAT UNDER SEC. 301 UNION OFFICERS
OR MEMBERS CANNOT BE HELD PERSONALLY LIABLE FOR UNION ACTIONS, AND THAT
THEREFORE "SUITS OF THE NATURE ALLEGED IN COUNT II ARE NO LONGER
COGNIZABLE IN STATE OR FEDERAL COURTS."  THE COURT OF APPEALS REVERSED,
HOWEVER, RULING THAT "COUNT II STATED A CAUSE OF ACTION COGNIZABLE IN
THE COURTS OF INDIANA AND, BY DIVERSITY, MAINTAINABLE IN THE DISTRICT
COURT." 

WE ARE UNABLE TO AGREE WITH THE COURT OF APPEALS, FOR WE ARE
CONVINCED THAT COUNT II IS CONTROLLED BY FEDERAL LAW AND THAT IT MUST
BE DISMISSED ON THE MERITS FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED. 

UNDER SEC. 301 A SUIT FOR VIOLATION OF THE COLLECTIVE BARGAINING
CONTRACT IN EITHER A FEDERAL OR STATE COURT IS GOVERNED BY FEDERAL LAW
(LOCAL 174 V. LUCAS FLOUR CO., 369 U.S. 95, 102-104; TEXTILE WORKERS
UNION V. LINCOLN MILLS, 353 U.S. 448), AND COUNT II ON ITS FACE CHARGES
THE INDIVIDUAL DEFENDANTS WITH A VIOLATION OF THE NO-STRIKE CLAUSE. 
AFTER QUOTING VERBATIM THE NO-STRIKE CLAUSE, COUNT II ALLEGES THAT THE
24 INDIVIDUAL DEFENDANTS "CONTRARY TO THEIR DUTY TO PLAINTIFF TO ABIDE
BY" THE CONTRACT FOMENTED AND PARTICIPATED IN A WORK STOPPAGE IN
VIOLATION OF THE NO-STRIKE CLAUSE.  THE UNION ITSELF DOES NOT QUARREL
WITH THE PROPOSITION THAT THE RELATIONSHIP OF THE MEMBERS OF THE
BARGAINING UNIT TO THE EMPLOYER IS "GOVERNED BY" THE BARGAINING
AGREEMENT ENTERED INTO ON THEIR BEHALF BY THE UNION.  IT IS UNIVERSALLY
ACCEPTED THAT THE NO-STRIKE CLAUSE IN A COLLECTIVE AGREEMENT AT THE
VERY LEAST ESTABLISHES A RULE OF CONDUCT OR CONDITION OF EMPLOYMENT THE
VIOLATION OF WHICH BY EMPLOYEES JUSTIFIES DISCIPLINE OR DISCHARGE
(MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270, 280 & N. 10; LABOR
BOARD V. ROCKAWAY NEWS CO., 345 U.S. 71, 80; LABOR BOARD V. SANDS MFG.,
CO., 306 U.S. 332; LABOR BOARD V. DRAPER CORP., 145 F.2D 199 (C.A. 4TH
CIR.); UNITED BISCUIT CO. V. LABOR BOARD, 128 F.2D 771 (C.A. 7TH CIR.);
SEE R.R. CONNELLEY & SONS CO., 5 LAB.  ARB.  16; FORD MOTOR CO., 1
LAB.  ARB.  439).  THE CONDUCT CHARGED IN COUNT II IS THEREFORE WITHIN
THE SCOPE OF A "VIOLATION" OF THE COLLECTIVE AGREEMENT. 

AS WELL AS CHARGING A VIOLATION OF THE NO-STRIKE CLAUSE BY THE
INDIVIDUAL DEFENDANTS, COUNT II NECESSARILY CHARGES A VIOLATION OF THE
CLAUSE BY THE UNION ITSELF.  THE WORK STOPPAGE ALLEGED IS THE IDENTICAL
WORK STOPPAGE FOR WHICH THE UNION IS SUED UNDER COUNT I AND THE SAME
DAMAGE IS ALLEGED AS IS ALLEGED IN COUNT I. COUNT II STATES THAT THE
INDIVIDUAL DEFENDANTS ACTED "AS OFFICERS, COMMITTEEMEN AND AGENTS OF
THE SAID LABOR ORGANIZATIONS" IN BREACHING AND INDUCING OTHERS TO
BREACH THE COLLECTIVE BARGAINING CONTRACT.  COUNT I CHARGES THE
PRINCIPAL, AND COUNT II CHARGES THE AGENTS FOR ACTING ON BEHALF OF THE
PRINCIPAL.  WHATEVER INDIVIDUAL LIABILITY COUNT II ALLEGES FOR THE 24
INDIVIDUAL DEFENDANTS, IT NECESSARILY RESTATES THE LIABILITY OF THE
UNION WHICH IS CHARGED UNDER COUNT I, SINCE UNDER SEC. 301(B) THE UNION
IS LIABLE FOR THE ACTS OF ITS AGENTS, UNDER FAMILIAR PRINCIPLES OF THE
LAW OF AGENCY (SEE ALSO SEC. 301(E)).  PROOF OF THE ALLEGATIONS OF
COUNT II IN ITS PRESENT FORM WOULD INEVITABLY PROVE A VIOLATION OF THE
NO-STRIKE CLAUSE BY THE UNION ITSELF.  COUNT II, LIKE COUNT I, IS THUS
A SUIT BASED ON THE UNION'S BREACH OF ITS COLLECTIVE BARGAINING
CONTRACT WITH THE EMPLOYER, AND THEREFORE COMES WITHIN SEC. 301(A). 
WHEN A UNION BREACH OF CONTRACT IS ALLEGED, THAT THE PLAINTIFF SEEKS TO
HOLD THE AGENTS LIABLE INSTEAD OF THE PRINCIPAL DOES NOT BRING THE
ACTION OUTSIDE THE SCOPE OF SEC. 301.  (FN6)    UNDER ANY THEORY,
THEREFORE, THE COMPANY'S ACTION IS GOVERNED BY THE NATIONAL LABOR
RELATIONS LAW WHICH CONGRESS COMMANDED THIS COURT TO FASHION UNDER SEC.
301(A).  WE HOLD THAT THIS LAW REQUIRES THE DISMISSAL OF COUNT II FOR
FAILURE TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED - WHETHER THE
CONTRACT VIOLATION CHARGED IS THAT OF THE UNION OR THAT OF THE UNION
PLUS THE UNION OFFICERS AND AGENTS. 

WHEN CONGRESS PASSED SEC. 301, IT DECLARED ITS VIEW THAT ONLY THE
UNION WAS TO BE MADE TO RESPOND FOR UNION WRONGS, AND THAT THE UNION
MEMBERS WERE NOT TO BE SUBJECT TO LEVY.  SECTION 301(B) HAS THREE
CLAUSES.  ONE MAKES UNIONS SUABLE IN THE COURTS OF THE UNITED STATES. 
ANOTHER MAKES UNIONS BOUND BY THE ACTS OF THEIR AGENTS ACCORDING TO
CONVENTIONAL PRINCIPLES OF AGENCY LAW (CF. SEC. 301(E)).  AT THE SAME
TIME, HOWEVER, THE REMAINING CLAUSE EXEMPTS AGENTS AND MEMBERS FROM
PERSONAL LIABILITY FOR JUDGMENTS AGAINST THE UNION (APPARENTLY EVEN
WHEN THE UNION IS WITHOUT ASSETS TO PAY THE JUDGMENT).  THE LEGISLATIVE
HISTORY OF SEC. 301(B) MAKES IT CLEAR THAT THIS THIRD CLAUSE WAS A
DEEPLY FELT CONGRESSIONAL REACTION AGAINST THE DANBURY HATTERS CASE
(LOEWE V. LAWLOR, 208 U.S. 274; LAWLOR V. LOEWE, 235 U.S. 522), AND AN
EXPRESSION OF LEGISLATIVE DETERMINATION THAT THE AFTERMATH (LOEWE V.
SAVINGS BANK OF DANBURY, 236 F. 244 (C.A.2D CIR.)) OF THAT DECISION WAS
NOT TO BE PERMITTED TO RECUR.  IN THAT CASE, AN ANTITRUST TREBLE DAMAGE
ACTION WAS BROUGHT AGAINST A LARGE NUMBER OF UNION MEMBERS, INCLUDING
UNION OFFICERS AND AGENTS, TO RECOVER FROM THEM THE EMPLOYER'S LOSSES
IN A NATIONWIDE, UNION-DIRECTED BOYCOTT OF HIS HATS.  THE UNION WAS NOT
NAMED AS A PARTY, NOR WAS JUDGMENT ENTERED AGAINST IT.  A LARGE MONEY
JUDGMENT WAS ENTERED, INSTEAD, AGAINST THE INDIVIDUAL DEFENDANTS FOR
PARTICIPATING IN THE PLAN "EMANATING FROM HEADQUARTERS" (235 U.S., AT
534), BY KNOWINGLY AUTHORIZING AND DELEGATING AUTHORITY TO THE UNION
OFFICERS TO DO THE ACTS INVOLVED.  IN THE DEBATES, SENATOR BALL, ONE OF
THE ACT'S SPONSORS, DECLARED THAT SEC. 301, "BY PROVIDING THAT THE
UNION MAY SUE AND BE SUED AS A LEGAL ENTITY, FOR A VIOLATION OF
CONTRACT, AND THAT LIABILITY FOR DAMAGES WILL LIE AGAINST UNION ASSETS
ONLY, WILL PREVENT A REPETITION OF THE DANBURY HATTERS CASE, IN WHICH
MANY MEMBERS LOST THEIR HOMES" (93 CONG. REC. 5014).  SEE ALSO 93 CONG.
REC. 3839, 6283; S. REP. NO. 105, 80TH CONG., 1ST SESS. 16. 

CONSEQUENTLY, IN DISCHARGING THE DUTY CONGRESS IMPOSED ON US TO
FORMULATE THE FEDERAL LAW TO GOVERN SEC. 301(A) SUITS, WE ARE STRONGLY
GUIDED BY AND DO NOT GIVE A NIGGARDLY READING TO SEC. 301(B).  "WE
WOULD UNDERCUT THE ACT AND DEFEAT ITS POLICY IF WE READ SEC. 301
NARROWLY" (LINCOLN MILLS, 353 U.S., AT 456).  WE HAVE ALREADY SAID IN
ANOTHER CONTEXT THAT SEC. 301(B) AT LEAST EVIDENCES "A CONGRESSIONAL
INTENTION THAT THE UNION AS AN ENTITY, LIKE A CORPORATION, SHOULD IN
THE ABSENCE OF AGREEMENT BE THE SOLE SOURCE OF RECOVERY FOR INJURY
INFLICTED BY IT" (LEWIS V. BENEDICT COAL CORP., 361 U.S. 459, 470). 
THIS POLICY CANNOT BE EVADED OR TRUNCATED BY THE SIMPLE DEVICE OF SUING
UNION AGENTS OR MEMBERS, WHETHER IN CONTRACT OR TORT, OR BOTH, IN A
SEPARATE COUNT OR IN A SEPARATE ACTION FOR DAMAGES FOR VIOLATION OF A
COLLECTIVE BARGAINING CONTRACT FOR WHICH DAMAGES THE UNION ITSELF IS
LIABLE.  THE NATIONAL LABOR POLICY REQUIRES AND WE HOLD THAT WHEN A
UNION IS LIABLE FOR DAMAGES FOR VIOLATION OF THE NO-STRIKE CLAUSE, ITS
OFFICERS AND MEMBERS ARE NOT LIABLE FOR THESE DAMAGES.  HERE, COUNT II,
AS WE HAVE SAID, NECESSARILY ALLEGES UNION LIABILITY BUT PRAYS FOR
DAMAGES FROM THE UNION AGENTS.  WHERE THE UNION HAS INFLICTED THE
INJURY IT ALONE MUST PAY.  COUNT II MUST BE DISMISSED.  (FN7) 

THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE NO-STRIKE CLAUSE (ARTICLE III) PROVIDES THAT "THERE SHALL BE
NO STRIKES  ...  (1) FOR ANY CAUSE WHICH IS OR MAY BE THE SUBJECT OF A
GRIEVANCE  ...  OR (2) FOR ANY OTHER CAUSE, EXCEPT UPON WRITTEN NOTICE
BY UNION TO EMPLOYER  ... ."  ARTICLE XXVII, COVERING "GENERAL
DISPUTES," PROVIDES THAT DISPUTES WHICH ARE GENERAL IN CHARACTER OR
WHICH AFFECT A LARGE NUMBER OF EMPLOYEES ARE TO BE NEGOTIATED BETWEEN
THE PARTIES; THERE IS NO PROVISION FOR ARBITRATION.  MOREOVER, THE
MANAGEMENT-PREROGATIVE CLAUSE (ARTICLE XXXI) RECOGNIZES THAT "OPERATION
OF THE EMPLOYER'S FACILITIES AND THE DIRECTION OF THE WORKING FORCES,
INCLUDING THE RIGHT TO HIRE, SUSPEND OR DISCHARGE FOR GOOD AND
SUFFICIENT CAUSE AND PURSUANT TO THE SENIORITY ARTICLE OF THIS
AGREEMENT, THE RIGHT TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK
OF WORK, ARE AMONG THE SOLE PREROGATIVES OF THE EMPLOYER; PROVIDED,
HOWEVER, THAT  ...  SUCH SUSPENSIONS AND DISCHARGES SHALL BE SUBJECT TO
THE GRIEVANCE AND ARBITRATION CLAUSE  ...  ." 

FN2  ARTICLE XXVI IS SET OUT IN FULL INFRA, AT P. 250, AS AN
APPENDIX. 

FN3  WE DO NOT NEED TO REACH, THEREFORE, THE QUESTION OF WHETHER,
UNDER THE CONTRACT INVOLVED HERE, BREACHES OF THE NO-STRIKE CLAUSE ARE
"GRIEVANCES," I.E., "DIFFERENCES REGARDING WAGES, HOURS OR WORKING
CONDITIONS," OR ARE "GRIEVANCES" IN THE MORE GENERAL SENSE OF THE
TERM.  SEE HOOVER EXPRESS CO. V. TEAMSTERS LOCAL, NO. 327, 217 F.2D 49
(C.A. 6TH CIR.).  THE PRESENT DECISION DOES NOT APPROVE OR DISAPPROVE
THE DOCTRINE OF THE HOOVER CASE OR THE SIXTH CIRCUIT CASES FOLLOWING IT
(E.G., VULCAN-CINCINNATI, INC., V. UNITED STEELWORKERS, 289 F.2D 103;
UNITED AUTO WORKERS V. BENTON HARBOR INDUS., 242 F.2D 536).  SEE ALSO
CASES COLLECTED IN YALE & TOWNE MFG. CO. V. LOCAL LODGE NO. 1717, 299
F.2D 882, 883-884 N. 5, 6 (C.A. 3D CIR.).  IN DRAKE BAKERIES, INC., V.
LOCAL 50, POST, P. 254, DECIDED THIS DAY, THE QUESTION OF ARBITRABILITY
OF A DAMAGES CLAIM FOR BREACH OF A NO-STRIKE CLAUSE IS CONSIDERED AND
RESOLVED IN FAVOR OF ARBITRATION IN THE PRESENCE OF AN AGREEMENT TO
ARBITRATE "ALL COMPLAINTS, DISPUTES OR GRIEVANCES ARISING BETWEEN THEM
(I.E., THE PARTIES) INVOLVING  ...  ANY ACT OR CONDUCT OR RELATION
BETWEEN THE PARTIES." 

FN4  ARBITRATORS GENERALLY HAVE NO OBLIGATION TO GIVE THEIR REASONS
FOR AN AWARD.  UNITED STEELWORKERS V. ENTERPRISE CORP., 363 U.S. 593,
598; BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198, 203.  THE RECORD OF
THEIR PROCEEDINGS IS NOT AS COMPLETE AS IT IS IN A COURT TRIAL.  IBID. 

FN5  THE UNION ALSO ARGUES THAT THE PREEMPTIVE DOCTRINE OF CASES SUCH
AS SAN DIEGO BLDG. TRADES COUNCIL V. GARMON, 359 U.S. 236, IS
APPLICABLE AND PREVENTS THE COURTS FROM ASSERTING JURISDICTION.  SINCE
THIS IS A SEC. 301 SUIT, THAT DOCTRINE IS INAPPLICABLE.  LOCAL 174 V.
LUCAS FLOUR CO., 369 U.S. 95, 101 N. 9. 

WE PUT ASIDE, SINCE IT IS UNNECESSARY TO REACH THEM, THE QUESTIONS OF
WHETHER THE EMPLOYER WAS EXCUSED FROM ARBITRATING THE DAMAGE CLAIM
BECAUSE IT WAS OVER BREACH OF THE NO-STRIKE CLAUSE (SEE DRAKE BAKERIES,
INC., V. LOCAL 50, POST, P. 254, DECIDED THIS DAY) AND WHETHER THE
UNDERLYING FACTUAL OR LEGAL DETERMINATION, MADE BY AN ARBITRATOR IN THE
PROCESS OF AWARDING OR DENYING REIMBURSEMENT TO 14 EMPLOYEES, WOULD
BIND EITHER THE UNION OR THE COMPANY IN THE LATTER'S ACTION FOR DAMAGES
AGAINST THE UNION IN THE DISTRICT COURT. 

FN6  SWIFT & CO. V. UNITED PACKINGHOUSE WORKERS, 177 F. SUPP. 511 (D.
COLO.).  CONTRA, SQUARE D CO. V. UNITED E., R.&M. WKRS., 123 F. SUPP.
776, 779-781 (E.D. MICH.).  SEE ALSO MORGAN DRIVE AWAY, INC., V.
TEAMSTERS UNION, 166 F. SUPP. 885 (S.D. IND.), CONCLUDING AS WE DO,
THAT THE COMPLAINT SHOULD BE DISMISSED BECAUSE OF SECS. 301(B) AND
301(E), BUT FOR WANT OF JURISDICTION RATHER THAN ON THE MERITS.  OUR
HOLDING, HOWEVER, IS THAT THE SUIT IS A SEC. 301 SUIT; WHETHER THERE IS
A CLAIM UPON WHICH RELIEF CAN BE GRANTED IS A SEPARATE QUESTION.  SEE
BELL V. HOOD, 327 U.S. 678. 

FN7  IN REACHING THIS CONCLUSION, WE HAVE NOT IGNORED THE ARGUMENT
THAT COUNT II WAS DRAFTED IN ORDER TO ANTICIPATE THE POSSIBLE UNION
DEFENSE UNDER COUNT I THAT THE WORK STOPPAGE WAS UNAUTHORIZED BY THE
UNION, AND WAS A WILDCAT STRIKE LED BY THE 24 INDIVIDUAL DEFENDANTS
ACTING NOT IN BEHALF OF THE UNION BUT IN THEIR PERSONAL AND NONUNION
CAPACITY.  THE LANGUAGE OF COUNT II CONTRADICTS THE ARGUMENT, HOWEVER,
AND WE THEREFORE DO NOT REACH THE QUESTION OF WHETHER THE COUNT WOULD
STATE A PROPER SEC. 301(A) CLAIM IF IT CHARGED UNAUTHORIZED, INDIVIDUAL
ACTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

APPENDIX TO OPINION OF THE COURT. 

ARTICLE XXVI PROVIDES:

       "GRIEVANCE AND ARBITRATION PROCEDURE

                            "DEFINITION 

"1.  A GRIEVANCE IS DEFINED TO BE ANY DIFFERENCE REGARDING WAGES,
HOURS OR WORKING CONDITIONS BETWEEN THE PARTIES HERETO OR BETWEEN THE
EMPLOYER AND AN EMPLOYEE COVERED BY THIS WORKING AGREEMENT WHICH MIGHT
ARISE WITHIN ANY PLANT OR WITHIN ANY REGION OF OPERATIONS. 

                                     "GRIEVANCE PROCEDURE 

"IT IS THE SINCERE DESIRE OF BOTH PARTIES THAT EMPLOYEE GRIEVANCES BE
SETTLED AS FAIRLY AND AS QUICKLY AS POSSIBLE.  THEREFORE, WHEN A
GRIEVANCE ARISES, THE FOLLOWING PROCEDURE MUST BE FOLLOWED: 

"2.  FOR THE PURPOSES OF ADJUSTING EMPLOYEE GRIEVANCES AND DISPUTES
AS DEFINED ABOVE, IT IS AGREED THAT ANY EMPLOYEE, INDIVIDUALLY OR
ACCOMPANIED BY HIS COMMITTEEMAN, IF DESIRED SHALL: 

"(A)  SEEK DIRECT ADJUSTMENT OF ANY GRIEVANCE OR DISPUTE WITH THE
FOREMAN UNDER WHOM HE IS EMPLOYED.  SUCH MEETING WILL BE WITHOUT LOSS
OF TIME TO THE EMPLOYEE AND/OR HIS COMMITTEEMAN DURING REGULAR WORKING
HOURS FOR TIME SPENT IN CONFERENCE WITH THE FOREMAN.  THE FOREMAN SHALL
REPLY TO SAID EMPLOYEE WITHIN THREE (3) WORKING DAYS (SATURDAY, SUNDAY
AND HOLIDAYS EXCLUDED) FROM THE DATE ON WHICH THE GRIEVANCE WAS FIRST
PRESENTED TO HIM: 

"(B)  IF THE QUESTION IS NOT THEN SETTLED, THE EMPLOYEE MAY SUBMIT
HIS GRIEVANCE IN WRITING, ON FORMS SUPPLIED BY UNION, TO A COMMITTEE
SELECTED AS HEREINAFTER PROVIDED FOR THE PARTICULAR PLANT OR REGION IN
WHICH SUCH EMPLOYEE IS EMPLOYED.  SUCH COMMITTEE SHALL INVESTIGATE SAID
COMPLAINT AND IF IN ITS OPINION THE GRIEVANCE HAS MERIT IT SHALL HAVE
THE RIGHT TO MEET WITH THE LOCAL COMPANY SUPERINTENDENT OR HIS
REPRESENTATIVE, WHO SHALL RECEIVE THE COMMITTEE FOR THIS PURPOSE. 
WRITTEN DECISIONS SHALL BE MADE BY THE LOCAL SUPERINTENDENT OR HIS
REPRESENTATIVE WITHIN TEN (10) DAYS AFTER MEETING WITH THE COMMITTEE,
PROVIDED THAT PRIOR TO THE TIME OF OR AT THE MEETING WITH THE COMMITTEE
SUCH COMPLAINT OR GRIEVANCE HAS BEEN SUBMITTED IN WRITING TO THE LOCAL
SUPERINTENDENT OR HIS REPRESENTATIVE. 

"(C)  IN EXCEPTIONAL CASES, WORKMEN'S COMMITTEES SHALL HAVE THE RIGHT
TO INSTITUTE GRIEVANCES CONCERNING ANY ALLEGED VIOLATION OF THIS
AGREEMENT BY FILING WRITTEN COMPLAINT WITH THE OFFICIAL LOCALLY IN
CHARGE. 

"(D)  ANY GRIEVANCE FILED WITH OR BY THE LOCAL WORKMEN'S COMMITTEE
CAN ONLY BE WITHDRAWN WITH THE WORKMEN'S COMMITTEE'S CONSENT. 

"3.  NO COMPLAINT OR GRIEVANCE SHALL BE CONSIDERED HEREUNDER UNLESS
IT IS PRESENTED TO THE SUPERINTENDENT OR OFFICIAL LOCALLY IN CHARGE
WITHIN SIXTY (60) DAYS FROM THE DATE ON WHICH THE COMPLAINT OR
GRIEVANCE AROSE, OR FROM THE DATE ON WHICH THE EMPLOYEE OR EMPLOYEES
CONCERNED FIRST LEARNED OF THE CAUSE OF COMPLAINT. 

"4.  THE COMMITTEE ABOVE MENTIONED SHALL BE SELECTED FROM AMONG AND
BY EMPLOYEES OF THE EMPLOYER WHO ARE MEMBERS OF THE UNION.  NO
OFFICIAL, FOREMAN, OR EMPLOYEE HAVING AUTHORITY TO HIRE OR DISCHARGE
MEN SHALL SERVE ON THE COMMITTEE. 

"5.  IN CASE OF DISCHARGE OR LAY-OFF, EMPLOYEES WHO MAY DESIRE TO
FILE COMPLAINTS MUST PRESENT SUCH COMPLAINTS WITHIN ONE (1) WEEK AFTER
THE EFFECTIVE DATE OF DISCHARGE OR LAY-OFF TO THE COMMITTEE MENTIONED
IN THIS ARTICLE.  BEFORE ANY SUCH EMPLOYEE IS TO BE DISCHARGED FOR
CAUSE, OTHER THAN FLAGRANT VIOLATION OF RULES, OR IS TO BE LAID OFF, HE
SHALL BE GIVEN A WRITTEN NOTICE, DATED AND SIGNED BY HIS FOREMAN OR
OTHER REPRESENTATIVE OF THE EMPLOYER, SETTING FORTH THE REASON FOR SUCH
DISCHARGE OR LAY-OFF.  IN THE EVENT AN EMPLOYEE HAS BEEN DISCHARGED FOR
A FLAGRANT VIOLATION OF A COMPANY RULE, HE SHALL SUBSEQUENTLY, UPON
REQUEST, BE GIVEN A WRITTEN NOTICE, DATED AND SIGNED BY HIS FOREMAN OR
OTHER REPRESENTATIVE OF THE EMPLOYER SETTING FORTH THE REASON FOR SUCH
DISCHARGE.  THE WORKMEN'S COMMITTEE WILL BE FURNISHED WITH A COPY OF
THE STATEMENT FURNISHED TO THE EMPLOYEE, BOTH WHERE THE DISCHARGE OR
LAY-OFF IS FOR CAUSE OR FOR FLAGRANT VIOLATION OF A COMPANY RULE.  ANY
GRIEVANCE TO BE FILED UNDER THIS SECTION MUST BE FILED WITHIN FORTY
(40) DAYS FROM THE EFFECTIVE DATE OF THE DISCHARGE OR LAY-OFF. 

"6.  IN THE EVENT THE DECISION OF THE SUPERINTENDENT OR HIS
REPRESENTATIVE SHALL NOT BE SATISFACTORY TO THE COMMITTEE, IT IS AGREED
THAT THE PRESIDENT OF THE OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION, AFL-CIO, OR SOMEONE DESIGNATED BY HIM, SHALL, NOT
LATER THAN FORTY-FIVE (45) DAYS AFTER SUCH DECISION, HAVE THE RIGHT TO
CONFER WITH THE DIRECTOR OF INDUSTRIAL RELATIONS FOR THE SINCLAIR
COMPANIES, OR SOMEONE DESIGNATED BY HIM, FOR THE PURPOSE OF DISCUSSING
GRIEVANCES OR DISPUTES AND OF OBTAINING DECISIONS THEREON.  IT IS
AGREED THAT THE DIRECTOR OF INDUSTRIAL RELATIONS FOR THE SINCLAIR
COMPANIES, OR SOMEONE DESIGNATED BY HIM, SHALL RENDER A DECISION TO THE
PRESIDENT OF THE OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION,
AFL-CIO, WITHIN TWENTY (20) DAYS AFTER GRIEVANCES OR DISPUTES HAVE BEEN
SO SUBMITTED TO HIM IN WRITING.    "7.  IF SUCH DECISION IS NOT
SATISFACTORY, THEN, UPON REQUEST OF THE PRESIDENT OR ANY DISTRICT
DIRECTOR OF THE OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION,
AFL-CIO AND WITHIN SIXTY (60) DAYS FROM THE POSTING DATE OF THE FINAL
APPEAL ANSWER, THERE SHALL BE SET UP A LOCAL ARBITRATION BOARD, AND
SUCH GRIEVANCES AND DISPUTES SUBMITTED TO IT WITHIN TEN (10) DAYS AFTER
FORMATION OF SUCH BOARD.  SUCH LOCAL BOARDS MAY BE SET UP AT EACH
REFINERY TO DEAL WITH CASES ARISING THEREFROM; CASES ARISING FROM
SINCLAIR OIL & GAS COMPANY SHALL BE HEARD AND DETERMINED AT TULSA,
OKLAHOMA; FORT WORTH, TEXAS; MIDLAND, TEXAS; OR CASPER, WYOMING; CASES
ARISING FROM SINCLAIR PIPE LINE COMPANY SHALL BE HEARD AND DETERMINED
AT THE CITIES PREVIOUSLY NAMED OR AT KANSAS CITY, MISSOURI; TOLEDO,
OHIO; HOUSTON, TEXAS; CHICAGO, ILLINOIS; PHILADELPHIA, PENNSYLVANIA; OR
INDEPENDENCE, KANSAS.  THESE LOCAL ARBITRATION BOARDS SHALL CONSIDER
ONLY INDIVIDUAL OR LOCAL EMPLOYEE OR LOCAL COMMITTEE GRIEVANCES ARISING
UNDER THE APPLICATION OF THE CURRENTLY EXISTING AGREEMENT, OR
SUPPLEMENTS THERETO, AND LOCAL WAGE AND CLASSIFICATION DISPUTES
SUBMITTED ON THE INITIATIVE OF THE PRESIDENT OR ANY DISTRICT DIRECTOR
OF THE OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO. 
IN THIS CONNECTION, EMPLOYER AGREES TO GIVE CONSIDERATION TO LOCAL
CLASSIFICATION RATE INEQUITY COMPLAINTS EXISTING BY REASON OF A
COMPARISON WITH THE AVERAGE OF COMPETITIVE RATES OF PAY FOR LIKE JOBS
HAVING COMPARABLE DUTIES AND RESPONSIBILITIES BEING PAID BY AGREED-UPON
MAJOR COMPETITIVE COMPANIES IN THE LOCAL AREA.  SUCH REQUESTS FOR
ADJUSTMENTS OF CLASSIFICATION RATE INEQUITIES, IF ANY, SHALL BE MADE
NOT MORE FREQUENTLY THAN TWICE ANNUALLY, TO BE EFFECTIVE ON FEBRUARY
1ST AND AUGUST 1ST.  SUCH REQUESTS TO BE SUBMITTED AT LEAST THIRTY (30)
DAYS PRIOR TO SUCH SEMI-ANNUAL DATES. 

"8.  THE ABOVE MENTIONED LOCAL ARBITRATION BOARD SHALL BE COMPOSED OF
ONE PERSON DESIGNATED BY EMPLOYER AND ONE DESIGNATED BY THE PRESIDENT
OR DISTRICT DIRECTOR OF THE OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION, AFL-CIO.  THE BOARD SHALL BE REQUESTED BY BOTH
PARTIES TO RENDER A DECISION WITHIN SEVEN (7) DAYS FROM DATE OF
SUBMISSION.  SHOULD THE TWO MEMBERS OF THE BOARD SELECTED AS ABOVE
PROVIDED, BE UNABLE TO AGREE WITHIN SEVEN (7) DAYS, OR TO MUTUALLY
AGREE UPON AN IMPARTIAL THIRD ARBITRATOR, AN IMPARTIAL THIRD MEMBER
SHALL BE SELECTED WITHIN SEVEN (7) DAYS THEREAFTER BY THE EMPLOYER OR
EMPLOYEE MEMBER OF THE ARBITRATION BOARD, OR SUCH TWO PARTIES JOINTLY,
REQUESTING THE FEDERAL MEDIATION AND CONCILIATION SERVICE TO SUBMIT A
PANEL OF ARBITRATORS FROM WHICH THE THIRD MEMBER OF THE BOARD WILL BE
SELECTED IN ACCORDANCE WITH THE PROCEDURE OF SUCH FEDERAL MEDIATION AND
CONCILIATION SERVICE. 

"9.  THE DECISION OF THE BOARD AFORESAID, AS PROVIDED IN SECTION 8
HEREOF, SHALL BE FINAL.  HOWEVER, IF THE RULES AND CONDITIONS EXISTING
AT THE TIME A GIVEN CASE ORIGINATED ARE SUBSEQUENTLY CHANGED, IT IS
UNDERSTOOD THAT THE ARBITRATION AWARD RENDERED UNDER FORMER RULES AND
CONDITIONS SHALL NOT ACT TO PROHIBIT CONSIDERATION OF A COMPLAINT
ORIGINATING UNDER THE CHANGED RULES AND CONDITIONS. 

"10.  CASES ARISING FROM THE GASOLINE PLANTS SHALL BE CONSIDERED AS
COMING WITHIN THE PRODUCING DIVISION IN WHICH THEY ARE LOCATED. 

"11.  THE FEE AND EXPENSE OF THE IMPARTIAL ARBITRATOR SELECTED AS
ABOVE PROVIDED SHALL BE DIVIDED EQUALLY BETWEEN THE PARTIES TO SUCH
ARBITRATION.  THE PARTIES AGREE TO ATTEMPT TO HOLD THE ARBITRATOR'S
FEES TO A REASONABLE BASIS." 
..END :















DRAKE BAKERIES, INC. V. LOCAL 50, AMERICAN BAKERY & CONFECTIONERY
WORKERS INTERNATIONAL, AFL-CIO 370 U.S. 254 


NO. 598.  ARGUED APRIL 18, 1962 - DECIDED JUNE 18, 1962 - 294 F.2D 399,
AFFIRMED. 


UNDER SEC. 301 OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, AN
EMPLOYER SUED A UNION FOR DAMAGES ALLEGED TO HAVE RESULTED FROM THE
UNION'S ACTION IN ENCOURAGING ITS MEMBERS TO STRIKE OR NOT TO REPORT
FOR WORK ON A CERTAIN DAY IN VIOLATION OF A NO-STRIKE CLAUSE CONTAINED
IN A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE EMPLOYER AND THE
UNION.  THE CONTRACT PROVIDED FOR COMPULSORY, FINAL AND BINDING
ARBITRATION, AT THE REQUEST OF EITHER PARTY, OF "ALL COMPLAINTS,
DISPUTES OR GRIEVANCES ARISING BETWEEN (THE PARTIES) INVOLVING
QUESTIONS OF INTERPRETATION OR APPLICATION OF ANY CLAUSE OR MATTER
COVERED BY THIS CONTRACT OR ANY ACT OR CONDUCT OR RELATION BETWEEN THE
PARTIES HERETO, DIRECTLY OR INDIRECTLY."  THE UNION MOVED THAT THE SUIT
BE STAYED PENDING ARBITRATION OF THE DISPUTE, AND IT SUPPORTED THIS
MOTION BY AN AFFIDAVIT DENYING THAT IT HAD INSTIGATED A STRIKE OR
ENCOURAGED ITS MEMBERS NOT TO WORK ON THE DAY IN QUESTION.  HELD:  THE
DISTRICT COURT PROPERLY STAYED THE ACTION PENDING COMPLETION OF
ARBITRATION.  THE CONTRACT HERE INVOLVED OBLIGATES THE EMPLOYER TO
ARBITRATE ITS CLAIM FOR DAMAGES FOR FORBIDDEN STRIKES BY THE UNION, AND
THERE ARE NO CIRCUMSTANCES IN THIS RECORD WHICH WOULD JUSTIFY RELIEVING
THE EMPLOYER OF ITS DUTY TO ARBITRATE THE CONSEQUENCES OF THIS ONE-DAY
STRIKE, INTERTWINED AS IT IS WITH THE UNION'S DENIALS THAT THERE WAS
ANY STRIKE OR ANY BREACH OF CONTRACT.  PP. 255-267. 

(A)  THE EMPLOYER'S CLAIM AGAINST THE UNION FOR DAMAGES FOR AN
ALLEGED STRIKE IN VIOLATION OF THE CONTRACT IS CLEARLY WITHIN THE SCOPE
OF THE ARBITRATION PROVISIONS OF THE CONTRACT HERE INVOLVED.  ATKINSON
V. SINCLAIR REFINING CO., ANTE, P. 238, DISTINGUISHED.  PP. 256-260 

(B)  IN THE CIRCUMSTANCES OF THIS CASE, THE ALLEGED ONE-DAY STRIKE
WAS NOT SUCH A BREACH OR REPUDIATION OF THE ARBITRATION CLAUSE BY THE
UNION THAT THE EMPLOYER WAS EXCUSED FROM ARBITRATING ITS CLAIM FOR
DAMAGES RESULTING THEREFROM.  PP. 260-266. 

(C)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE UNION IS
NOT ENTITLED TO A STAY BECAUSE IT DID NOT PROCEED WITH SUFFICIENT
DISPATCH IN SEEKING ARBITRATION OF THE EMPLOYER'S DAMAGE CLAIM AGAINST
IT.  PP. 266-267. 

DRAKE BAKERIES INCORPORATED V. LOCAL 50, AMERICAN BAKERY & CONFECTIONERY
WORKERS INTERNATIONAL, AFL-CIO, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

THE PETITIONING COMPANY BROUGHT THIS ACTION FOR DAMAGES IN THE
DISTRICT COURT UNDER SEC. 301(A) OF THE TAFT-HARTLEY ACT, ALLEGING THAT
THE RESPONDENT UNION HAD VIOLATED THE NO-STRIKE CLAUSE OF THE
COLLECTIVE BARGAINING CONTRACT BETWEEN THE UNION AND THE COMPANY.  THE
SOLE QUESTION IN THE CASE IS WHETHER THE DISTRICT COURT WAS CORRECT IN
HOLDING THAT THE EMPLOYER'S CLAIM WAS AN ARBITRABLE MATTER UNDER THE
CONTRACT AND IN ORDERING A STAY OF THE ACTION PENDING COMPLETION OF
ARBITRATION.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT BY AN EQUALLY DIVIDED VOTE.  (FN1)  THIS
COURT GRANTED CERTIORARI (368 U.S. 975), AND SET THE CAUSE FOR ARGUMENT
IMMEDIATELY FOLLOWING ATKINSON V. SINCLAIR REFINING CO., ANTE, P. 238,
DECIDED THIS DAY. 

THE COMPANY'S BUSINESS IS BAKING AND SELLING CAKES AND OTHER BAKERY
PRODUCTS.  ON DECEMBER 16, 1959, THE COMPANY NOTIFIED THE UNION AND ITS
EMPLOYEES THAT BECAUSE CHIRSTMAS AND NEW YEAR'S WOULD FALL ON FRIDAYS
AND BECAUSE IT WAS DESIRABLE TO HAVE FRESH BAKERY PRODUCTS TO SELL ON
THE MONDAYS FOLLOWING THE HOLIDAYS, EMPLOYEES WOULD NOT WORK ON THE
THURSDAYS BEFORE CHRISTMAS AND NEW YEAR'S BUT WOULD WORK ON THE
SATURDAYS FOLLOWING THOSE HOLIDAYS.  MEETINGS BETWEEN THE UNION AND THE
COMPANY ON DECEMBER 18 AND DECEMBER 22 ENSUED, THE COMPANY'S POSITION
BEING THAT IT WAS EXERCISING MANAGEMENT'S PREROGATIVE IN RESCHEDULING
WORK, THE UNION'S THAT THE PROPOSED WORK SCHEDULE VIOLATED THE
COLLECTIVE BARGAINING CONTRACT AND THAT THE EMPLOYEES WERE NOT
OBLIGATED TO WORK ON DECEMBER 26 OR JANUARY 2.  A COMPROMISE
ARRANGEMENT WAS WORKED OUT FOR DECEMBER 26, AND 80 OUT OF 190 EMPLOYEES
REPORTED ON THAT DAY, A SUFFICIENT NUMBER TO ALLOW PRODUCTION TO
PROCEED.  FURTHER CONVERSATIONS ON DECEMBER 28 WERE NOT FRUITFUL,
HOWEVER, AND ON SATURDAY, JANUARY 2, THE COMPANY WAS UNABLE TO PRODUCE
ITS GOODS BECAUSE ONLY 26 EMPLOYEES REPORTED FOR WORK.  THE COMPANY
PROMPTLY FILED THIS DAMAGE ACTION ON JANUARY 4, 1960, ALLEGING THAT THE
UNION INSTIGATED AND ENCOURAGED ITS MEMBERS TO STRIKE OR NOT TO REPORT
FOR WORK ON JANUARY 2, ALL IN VIOLATION OF THE NO-STRIKE CLAUSE
CONTAINED IN THE COLLECTIVE BARGAINING CONTRACT.  NO ANSWER HAS BEEN
FILED BY THE UNION BUT THE UNION'S AFFIDAVIT IN SUPPORT OF THE MOTION
FOR STAY STATED WHAT ITS ANSWER WOULD CONTAIN AND SPECIFICALLY DENIED
THAT THE UNION HAD INSTIGATED A STRIKE OR ENCOURAGED ITS MEMBERS NOT TO
WORK ON JANUARY 2. 

AS WAS TRUE IN ATKINSON, SUPRA, THE ISSUE OF ARBITRABILITY IS A
QUESTION FOR THE COURTS AND IS TO BE DETERMINED BY THE CONTRACT ENTERED
INTO BY THE PARTIES.  "  ...  A PARTY CANNOT BE REQUIRED TO SUBMIT TO
ARBITRATION ANY DISPUTE WHICH HE HAS NOT AGREED SO TO SUBMIT."  UNITED
STEELWORKERS V. WARRIOR & GULF NAV. CO., 363 U.S. 574, 582.  BUT THE
CONTRACT HERE IS MUCH DIFFERENT FROM THE AGREEMENT IN ATKINSON.  UNDER
ARTICE V (FN2) OF THE CONTRACT:  "THE PARTIES AGREE THAT THEY WILL
PROMPTLY ATTEMPT TO ADJUST ALL COMPLAINTS, DISPUTES OR GRIEVANCES
ARISING BETWEEN THEM INVOLVING QUESTIONS OF INTERPRETATION OR
APPLICATION OF ANY CLAUSE OR MATTER COVERED BY THIS CONTRACT OR ANY ACT
OR CONDUCT OR RELATION BETWEEN THE PARTIES HERETO, DIRECTLY OR
INDIRECTLY." 

THIS IS BROAD LANGUAGE, INDEED, AND THE PROCEDURE THEREAFTER PROVIDED
IN ARTICLE V DOES NOT, AS IT DID IN ATKINSON, EXCLUDE CLAIMS OR
COMPLAINTS OF THE EMPLOYER.  IT IS PROVIDED THAT IN THE FIRST INSTANCE
THE UNION WILL BE REPRESENTED BY A COMMITTEE AND THE SHOP CHAIRMAN, AND
THE EMPLOYER BY THE SHOP MANAGER.  FAILING ADJUSTMENT AT THIS STAGE,
THE ISSUE IS REQUIRED TO BE SUBMITTED IN WRITING BY "THE PARTY CLAIMING
TO BE AGGRIEVED TO THE OTHER PARTY," WHEREUPON THE UNION AND THE PLANT
MANAGER ARE TO ATTEMPT TO REACH A SATISFACTORY AGREEMENT.  IF AGREEMENT
IS NOT REACHED WITHIN SEVEN DAYS FROM THE TIME THE ISSUE IS SUBMITTED
IN WRITING, EITHER PARTY "SHALL HAVE THE RIGHT TO REFER THE MATTER TO
ARBITRATION  ...  ." 

ARTICLE V DOES NOT STOP WITH DISPUTES "INVOLVING QUESTIONS OF
INTERPRETATION OR APPLICATION OF ANY CLAUSE OR MATTER" COVERED BY THE
CONTRACT.  THE ADJUSTMENT AND ARBITRATION PROCEDURES ARE TO APPLY TO
ALL COMPLAINTS, ALL DISPUTES AND ALL GRIEVANCES INVOLVING ANY ACT OF
EITHER PARTY, OR ANY CONDUCT OF EITHER PARTY, OR ANY RELATION BETWEEN
THE PARTIES, DIRECTLY OR INDIRECTLY.  THE COMPANY ASSERTS THAT THERE
WAS A STRIKE BY THE UNION IN VIOLATION OF THE NO-STRIKE CLAUSE.  IT
THEREFORE HAS A "COMPLAINT" AGAINST THE UNION CONCERNING THE "ACTS" OR
"CONDUCT" OF THE UNION.  THERE IS ALSO INVOLVED A "DISPUTE" BETWEEN THE
UNION AND THE COMPANY, FOR THE UNION DENIES THAT THERE WAS A STRIKE AT
ALL, DENIES THAT IT PRECIPITATED ANY STRIKE, DENIES THAT THE EMPLOYEES
WERE OBLIGATED UNDER THE CONTRACT TO WORK ON THAT JANUARY 2, AND ITSELF
CLAIMS THAT THE EMPLOYER BREACHED THE CONTRACT IN SCHEDULING WORK FOR
THE HOLIDAYS.  (FN3)  ARTICLE V ON ITS FACE EASILY REACHES THE
EMPLOYER'S CLAIM AGAINST THE UNION FOR DAMAGES CAUSED BY AN ALLEGED
STRIKE IN VIOLATION OF THE CONTRACT. 

THE COMPANY EARNESTLY CONTENDS THAT THE PARTIES CANNOT HAVE INTENDED
TO ARBITRATE SO FUNDAMENTAL A MATTER AS A UNION STRIKE IN BREACH OF
CONTRACT, AND THAT ONLY AN EXPRESS INCLUSION OF A DAMAGE CLAIM BY THE
EMPLOYER WOULD SUFFICE TO REQUIRE ARBITRATION.  BUT IT APPEARS MORE
REASONABLE TO US TO EXPECT SUCH A MATTER, IF IT IS INDEED SO
FUNDAMENTAL AND SO BASIC TO THE COMPANY UNDER THE CONTRACT, TO HAVE
BEEN EXCLUDED FROM THE COMPREHENSIVE LANGUAGE OF ARTICLE V IF THE
PARTIES SO INTENDED.  IN ARTICLE VII, (FN4) WHICH CONTAINS THE NO
STRIKE PROVISIONS, THE PARTIES PROHIBITED STRIKES, INSULATED THE UNION,
ITS OFFICERS AND MEMBERS FROM DAMAGES FOR STRIKES WHICH THE UNION DID
NOT AUTHORIZE, AND AGREED THAT, EVEN IN THE CASE OF UNAUTHORIZED
STRIKES, THE COMPANY WOULD ARBITRATE DISCIPLINARY ACTION TAKEN AGAINST
THE STRIKERS.  IN THE FACE OF THE COMPREHENSIVE LANGUAGE OF ARTICLE V,
IT WOULD HAVE BEEN MOST APPROPRIATE AT THIS POINT FOR THE PARTIES TO
HAVE EXCLUDED FROM THE ARBITRATION PROCEDURES THE COMPANY'S CLAIM FOR
STRIKE DAMAGES, IF THEY HAD INTENDED TO DO SO. INSTEAD, THE INCLUSIVE
COVERAGE OF ARTICLE V WAS LEFT INTACT. 

OF SIGNIFICANCE ALSO ARE CERTAIN EVENTS WHICH OCCURRED IN AUGUST
1959.  AT THAT TIME THE COMPANY TOOK ISSUE WITH UNION CONDUCT IN
CONNECTION WITH OVERTIME WORK.  LABELING THIS CONDUCT AN "OVERTIME
STRIKE" AND A "BREACH OF CONTRACT," THE COMPANY WROTE A LETTER TO THE
STATE MEDIATION BOARD OF NEW YORK SAYING THAT THE CONTRACT WITH THE
UNION PROVIDED FOR ARBITRATION OF DISPUTES BEFORE AN ARBITRATOR
APPOINTED BY THE BOARD AND REQUESTING THE APPOINTMENT OF AN ARBITRATOR
TO "DETERMINE THE QUESTION OF BREACH OF CONTRACT AND DAMAGES SUFFERED
BY" THE COMPANY AS A RESULT OF THE STRIKE.  AN AWARD OF DAMAGES AGAINST
THE UNION WAS REQUESTED, AS WAS INJUNCTIVE RELIEF AGAINST A CONTINUANCE
OF THE OVERTIME STRIKE.  (FN5)  IT WOULD APPEAR, THEN, THAT THE
COMPANY, JUST FOUR MONTHS EARLIER IN 1959, CONSIDERED THAT THE
FUNDAMENTAL MATTER OF A UNION-LED STRIKE WAS A DISPUTE TO BE ARBITRATED
UNDER THE PROVISIONS OF THE CONTRACT.  (FN6) 

THE COMPANY FURTHER ASSERTS THAT EVEN IF IT AGREED IN THE CONTRACT TO
ARBITRATE UNION VIOLATIONS OF THE NO-STRIKE CLAUSE, IT IS EXCUSED BY
THE UNION'S BREACH FROM PURSUING THE POST-BREACH REMEDIES CALLED FOR IN
THE CONTRACT.  THE COMPANY DOES NOT DENY THAT GRIEVANCE AND ARBITRATION
PROCEDURES UNDER THIS CONTRACT - AS IS TRUE GENERALLY (UNITED
STEELWORKERS V. WARRIOR & GULF NAV. GO., 363 U.S. 574, 584) -
CONTEMPLATE AS A MATTER OF COURSE THE ARBITRATION OF MANY ALLEGED
BREACHES OF CONTRACT.  INDEED, CENTRAL TO THE COMPANY'S POSITION IS ITS
ASSERTION THAT THE UNION WAS BOUND TO ARBITRATE, RATHER THAN STRIKE
OVER, ITS CLAIM THAT THE COMPANY BREACHED THE CONTRACT BY SCHEDULING
SATURDAY WORK.  BUT IN ITS VIEW, THE UNION'S VIOLATION OF THE NO-STRIKE
CLAUSE IS SUI GENERIS AND SO BASIC TO WHAT THE EMPLOYER BARGAINED FOR
IN THE CONTRACT AND SO INHERENTLY AND "FUNDAMENTALLY INCONSISTENT WITH"
THE GRIEVANCE AND ARBITRATION PROCEDURES THAT THE FAITHFUL OBSERVANCE
OF THE NO-STRIKE CLAUSE BY THE UNION IS A CONDITION PRECEDENT TO THE
EMPLOYER'S DUTY TO ARBITRATE (EVEN THOUGH HE HAS PROMISED TO DO SO), OR
THAT THE UNION MUST BE DEEMED TO HAVE WAIVED, OR TO BE ESTOPPED FROM
ASSERTING, ITS RIGHT TO ARBITRATE. 

HOWEVER, THIS COURT HAS PRESCRIBED NO SUCH INFLEXIBLE RULE RIGIDLY
LINKING NO-STRIKE AND ARBITRATION CLAUSES OF EVERY COLLECTIVE
BARGAINING CONTRACT IN EVERY SITUATION.  (FN7)  THE COMPANY HAS NOT
ATTEMPTED, OR CLAIMED THE RIGHT, EITHER TO TERMINATE THE ENTIRE
CONTRACT OR TO EXTINGUISH PERMANENTLY ITS OBLIGATIONS UNDER THE
ARBITRATION PROVISIONS.  INSTEAD, IT HAS SUED FOR DAMAGES FOR AN
ALLEGED STRIKE AND, AS FAR AS THIS RECORD REVEALS, THE CONTRACT
CONTINUED IN EFFECT, AS DID THE PROMISES OF THE PARTIES TO ARBITRATE
AND THE PROMISE OF THE UNION NOT TO STRIKE.  MOREOVER, IN THIS CASE,
UNDER THIS CONTRACT, BY AGREEING TO ARBITRATE ALL CLAIMS WITHOUT
EXCLUDING THE CASE WHERE THE UNION STRUCK OVER AN ARBITRABLE MATTER,
THE PARTIES HAVE NEGATIVED ANY INTENTION TO CONDITION THE DUTY TO
ARBITRATE UPON THE ABSENCE OF STRIKES.  THEY HAVE THUS CUT THE GROUND
FROM UNDER THE ARGUMENT THAT AN ALLEGED STRIKE, AUTOMATICALLY AND
REGARDLESS OF THE CIRCUMSTANCES, IS SUCH A BREACH OR REPUDIATION OF THE
ARBITRATION CLAUSE BY THE UNION THAT THE COMPANY IS EXCUSED FROM
ARBITRATING, UPON THEORIES OF WAIVER, ESTOPPEL, OR OTHERWISE.  (FN8)
ARBITRATION PROVISIONS, WHICH THEMSELVES HAVE NOT BEEN REPUDIATED, ARE
MEANT TO SURVIVE BREACHES OF CONTRACT, IN MANY CONTEXTS, EVEN TOTAL
BREACH; (FN9) AND IN DETERMINING WHETHER ONE PARTY HAS SO REPUDIATED
HIS PROMISE TO ARBITRATE THAT THE OTHER PARTY IS EXCUSED THE
CIRCUMSTANCES OF THE CLAIMED REPUDIATION ARE CRITICALLY IMPORTANT. 
(FN10)  IN THIS CASE THE UNION DENIES HAVING REPUDIATED IN ANY RESPECT
ITS PROMISE TO ARBITRATE, DENIES THAT THERE WAS A STRIKE, DENIES THAT
THE EMPLOYEES WERE BOUND TO WORK ON JANUARY 2 AND ASSERTS THAT IT WAS
THE COMPANY ITSELF WHICH IGNORED THE ADJUSTMENT AND ARBITRATION
PROVISIONS BY SCHEDULING HOLIDAY WORK. 

IN PASSING SEC. 301, CONGRESS WAS INTERESTED IN THE ENFORCEMENT OF
COLLECTIVE BARGAINING CONTRACTS SINCE IT WOULD "PROMOTE A HIGHER DEGREE
OF RESPONSIBILITY UPON THE PARTIES TO SUCH AGREEMENTS, AND WILL THEREBY
PROMOTE INDUSTRIAL PEACE" (S. REP. NO. 105, 80TH CONG., 1ST SESS. 17). 
IT WAS PARTICULARLY INTERESTED IN PLACING "SANCTIONS BEHIND AGREEMENTS
TO ARBITRATE GRIEVANCE DISPUTES" (TEXTILE WORKERS UNION V. LINCOLN
MILLS, 353 U.S. 448, 456).  THE PREFERRED METHOD FOR SETTLING DISPUTES
WAS DECLARED BY CONGRESS TO BE "FINAL ADJUSTMENT BY A METHOD AGREED
UPON BY THE PARTIES" (SEC. 203(D) OF THE ACT, 29 U.S.C. SEC. 173(D)). 
"THAT POLICY CAN BE EFFECTUATED ONLY IF THE MEANS CHOSEN BY THE PARTIES
FOR SETTLEMENT OF THEIR DIFFERENCES UNDER A COLLECTIVE BARGAINING
AGREEMENT IS GIVEN FULL PLAY" (UNITED STEELWORKERS V. AMERICAN MFG.
CO., 363 U.S. 564, 566).  UNDER OUR FEDERAL LABOR POLICY, THEREFORE, WE
HAVE EVERY REASON TO PRESERVE THE STABLIZING INFLUENCE OF THE
COLLECTIVE BARGAINING CONTRACT IN A SITUATION SUCH AS THIS.  WE COULD
ENFORCE ONLY THE NO-STRIKE CLAUSE BY REFUSING A STAY IN THE SUIT FOR
DAMAGES IN THE DISTRICT COURT.  WE CAN ENFORCE BOTH THE NO-STRIKE
CLAUSE AND THE AGREEMENT TO ARBITRATE BY GRANTING A STAY UNTIL THE
CLAIM FOR DAMAGES IS ARBITRATED.  THIS WE PREFER TO DO.  (FN11) 

PETITIONER RELIES UPON DECISIONS BY VARIOUS COURTS OF APPEALS DENYING
STAYS OF DAMAGE SUITS FOR BREACH OF NO-STRIKE CLAUSES FOR WANT OF
ARBITRABILITY OF THE DISPUTE.  (FN12)  MOST OF THEM, HOWEVER, INVOLVED
FAR MORE NARROWLY DRAWN ARBITRATION CLAUSES THAN THAT WHICH IS INVOLVED
HERE.  (FN13)  AND IN AT LEAST TWO COURT OF APPEALS DECISIONS INVOLVING
CLAUSES OF COMPARABLE BREADTH TO THAT OF THE INSTANT CASE, VIOLATIONS
OF NO-STRIKE CLAUSES HAVE BEEN HELD TO BE ARBITRABLE AND SUITS FOR
DAMAGES HAVE BEEN STAYED PENDING ARBITRATION.  (FN14) 

THIS COURT HELD IN MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S.
270, THAT THE EMPLOYER DID NOT HAVE THE RIGHT TO REPLACE EMPLOYEES WHO
HAD STRUCK OVER EMPLOYER UNFAIR LABOR PRACTICES, IN THE FACE OF AN
ABSOLUTE NO-STRIKE CLAUSE.  IT WAS SAID THAT, DESPITE THE BROAD
PROHIBITION OF STRIKES IN THE CONTRACT, THE PARTIES COULD NOT HAVE
INTENDED TO WAIVE THE EMPLOYEES' RIGHT TO STRIKE OVER A FLAGRANT UNFAIR
LABOR PRACTICE, ABSENT AN EXPRESS STATEMENT IN THE CONTRACT TO THAT
EFFECT.  THE COMPANY URGES THAT MASTRO PRECLUDES THE RESULT WE HAVE
REACHED IN THIS CASE.  MASTRO, HOWEVER, INVOLVED A FLAGRANT UNFAIR
LABOR PRACTICE BY THE COMPANY THREATENING THE VERY EXISTENCE OF THE
UNION ITSELF.  A STRIKE IN VIOLATION OF CONTRACT IS NOT PER SE AN
UNFAIR LABOR PRACTICE (FN15) AND THERE IS NO SUGGESTION IN THIS RECORD
THAT THE ONE-DAY STRIKE INVOLVED HERE WAS OF THAT NATURE.  WE DO NOT
DECIDE IN THIS CASE THAT IN NO CIRCUMSTANCES WOULD A STRIKE IN
VIOLATION OF THE NO-STRIKE CLAUSE CONTAINED IN THIS OR OTHER CONTRACTS
ENTITLE THE EMPLOYER TO RESCIND OR ABANDON THE ENTIRE CONTRACT OR TO
DECLARE ITS PROMISE TO ARBITRATE FOREVER DISCHARGED OR TO REFUSE TO
ARBITRATE ITS DAMAGE CLAIMS AGAINST THE UNION.  WE DO DECIDE AND HOLD
THAT ARTICLE V OF THIS CONTRACT OBLIGATES THE COMPANY TO ARBITRATE ITS
CLAIMS FOR DAMAGES FROM FORBIDDEN STRIKES BY THE UNION AND THAT THERE
ARE NO CIRCUMSTANCES IN THIS RECORD WHICH JUSTIFY RELIEVING THE COMPANY
OF ITS DUTY TO ARBITRATE THE CONSEQUENCES OF THIS ONE-DAY STRIKE,
INTERTWINED AS IT IS WITH THE UNION'S DENIALS THAT THERE WAS ANY STRIKE
OR ANY BREACH OF CONTRACT AT ALL.    IF THE UNION DID STRIKE IN
VIOLATION OF THE CONTRACT, THE COMPANY IS ENTITLED TO ITS DAMAGES; BY
STAYING THIS ACTION, PENDING ARBITRATION, WE HAVE NO INTENTION OF
DEPRIVING IT OF THOSE DAMAGES.  WE SIMPLY REMIT THE COMPANY TO THE
FORUM IT AGREED TO USE FOR PROCESSING ITS STRIKE DAMAGE CLAIMS.  THAT
FORUM, IT IS TRUE, MAY BE VERY DIFFERENT FROM A COURTROOM, (FN16) BUT
WE ARE NOT PERSUADED THAT THE REMEDY THERE WILL BE INADEQUATE.  WHETHER
THE DAMAGES TO BE AWARDED BY THE ARBITRATOR WOULD NOT NORAMLLY BE
EXPECTED TO SERVE AS AN "EFFECTIVE" DETERRENT TO FUTURE STRIKES, WHICH
THE COMPANY URGES, IS NOT A QUESTION TO BE ANSWERED IN THE ABSTRACT OR
IN GENERAL TERMS.  THIS QUESTION, AS WELL AS WHAT RESULT WILL BEST
PROMOTE INDUSTRIAL PEACE, CAN ONLY BE ANSWERED IN THE FACTUAL CONTEXT
OF PARTICULAR CASES.  HERE, THE UNION CLAIMS IT DID NOT CALL A STRIKE
AND THAT THE MEN WERE NOT BOUND TO WORK ON JANUARY 2, BASING ITS CLAIM
UPON YEARS OF PAST PRACTICE UNDER THE CONTRACT.  THE DISPUTE WHICH THIS
RECORD PRESENTS APPEARS TO US TO BE ONE PARTICULARLY SUITED FOR
ARBITRATION, IF THE PARTIES HAVE AGREED TO ARBITRATE.  WE HOLD THAT
THEY DID SO AGREE AND WILL HOLD THE COMPANY TO ITS BARGAIN. 

A FINAL MATTER IS THE COMPANY'S SUGGESTION THAT THE UNION IS NOT
ENTITLED TO A STAY BECAUSE IT HAS NOT PROCEEDED WITH DISPATCH IN
SEEKING ARBITRATION.  THE DISTRICT COURT HELD THAT THE UNION WAS NOT IN
DEFAULT, AND WE AGREE.  IF THE COMPANY HAD A CLAIM FOR DAMAGES, THE
CONTRACT PROVIDED FOR THE COMPANY'S ATTEMPTING TO ADJUST ITS CLAIM BY
CONSULTING WITH THE UNION.  FAILING THIS, EITHER PARTY COULD TAKE THE
MATTER TO ARBITRATION.  THE COMPANY'S CLAIM AROSE OUT OF EVENTS WHICH
OCCURRED ON JANUARY 2.  THIS CASE WAS FILED ON JANUARY 4.  THIS WAS THE
FIRST OCCASION FOR THE UNION TO INSIST UPON ITS RIGHT TO ARBITRATE THE
EMPLOYER'S CLAIM FOR DAMAGES.  THIS IT PROMPTLY DID BY MOVING FOR A
STAY IN THE DISTRICT COURT.  (FN17)  AS ITS CONDUCT SHOWS IN A PREVIOUS
SITUATION, THE EMPLOYER WAS AWARE OF THE PROCEDURE TO BE FOLLOWED. 
(FN18)  IT SHOULD HAVE FOLLOWED IT HERE. 

FOR THE FOREGOING REASONS, THE JUDGMENT AFFIRMING THE OPINION OF THE
DISTRICT COURT WAS CORRECT, AND, ON THE MERITS, THE PANEL DECISION
PROPERLY WITHDRAWN.  AFFIRMED. 

FN1  THE COURT OF APPEALS ORIGINALLY HEARD THE APPEAL BEFORE A THREE
JUDGE PANEL, WHICH REVERSED THE JUDGMENT BELOW (287 F.2D 155).  BUT
REHEARING WAS ORDERED BEFORE THE ACTIVE JUDGES OF THE COURT, WHO
DIVIDED 3-3 ON THE MERITS, AND BY A 4-2 VOTE WITHDREW THE PANEL
DECISION AND AFFIRMED THE JUDGMENT BELOW (294 F.2D 399).  THE PROPRIETY
OF THIS PROCEDURE WAS QUESTIONED IN THE PETITION FOR CERTIORARI, BUT
LATER PETITIONER ABANDONED THE QUESTION. 

FN2  "ARTICLE V - GRIEVANCE PROCEDURE: 

"(A)  THE PARTIES AGREE THAT THEY WILL PROMPTLY ATTEMPT TO ADJUST ALL
COMPLAINTS, DISPUTES OR GRIEVANCES ARISING BETWEEN THEM INVOLVING
QUESTIONS OF INTERPRETATION OR APPLICATION OF ANY CLAUSE OR MATTER
COVERED BY THIS CONTRACT OR ANY ACT OR CONDUCT OR RELATION BETWEEN THE
PARTIES HERETO, DIRECTLY OR INDIRECTLY. 

"IN THE ADJUSTMENT OF SUCH MATTERS THE UNION SHALL BE REPRESENTED IN
THE FIRST INSTANCE BY THE DULY DESIGNATED COMMITTEE AND THE SHOP
CHAIRMAN AND THE EMPLOYER SHALL BE REPRESENTED BY THE SHOP MANAGEMENT. 
IT IS AGREED THAT IN THE HANDLING OF GRIEVANCES THERE SHALL BE NO
INTERFERENCE WITH THE CONDUCT OF THE BUSINESS. 

"(B)  IF THE COMMITTEE AND THE SHOP MANAGEMENT ARE UNABLE TO EFFECT
AN ADJUSTMENT, THEN THE ISSUE INVOLVED SHALL BE SUBMITTED IN WRITING BY
THE PARTY CLAIMING TO BE AGGRIEVED TO THE OTHER PARTY.  THE MATTER
SHALL THEN BE TAKEN UP FOR ADJUSTMENT BETWEEN THE UNION AND THE PLANT
MANAGER OR OTHER REPRESENTATIVE DESIGNATED BY MANAGEMENT FOR THE
PURPOSE.  IF NO MUTUALLY SATISFACTORY ADJUSTMENT IS REACHED BY THIS
MEANS, OR IN ANY EVENT WITHIN SEVEN (7) DAYS AFTER THE SUBMISSION OF
THE ISSUE IN WRITING AS PROVIDED ABOVE, THEN EITHER PARTY SHALL HAVE
THE RIGHT TO REFER THE MATTER TO ARBITRATION AS HEREIN PROVIDED." 

FN3  IMMEDIATELY BEFORE THE CHRISTMAS WEEKEND IN 1959, PETITIONER AND
RESPONDENT EXCHANGED TELEGRAMS, IN THE COURSE OF WHICH EXCHANGE
RESPONDENT CHARGED: 

"WE HAVE INFORMED YOU THAT WE DID NOT AGREE WITH, OR ACCEPT YOUR
PROPOSAL TO AMEND OR ALTER PAST PRACTICE CONCERNING HOLIDAY WEEKENDS. 
YOUR PROPOSED SCHEDULE AND YOUR THREATS OF DISCIPLINARY PENALTIES
VIOLATES CONTRACT AND PRACTICE  ...  .  IF YOU DO NOT RETRACT POSITION
WE SHALL DEMAND ARBITRATION." 

FN4  "ARTICLE VII - NO STRIKES: 

"(A)  THERE SHALL BE NO STRIKE, BOYCOTT, INTERRUPTION OF WORK,
STOPPAGE, TEMPORARY WALK-OUT OR LOCK-OUT FOR ANY REASON DURING THE
TERMS OF THIS CONTRACT EXCEPT THAT IF EITHER PARTY SHALL FAIL TO ABIDE
BY THE DECISION OF THE ARBITRATOR, AFTER RECEIPT OF SUCH DECISION,
UNDER ARTICLE 6 OF THIS CONTRACT, THEN THE OTHER PARTY SHALL NOT BE
BOUND BY THIS PROVISION. 

"(B)  THE PARTIES AGREE AS PART OF THE CONSIDERATION OF THIS
AGREEMENT THAT NEITHER THE INTERNATIONAL UNION, THE LOCAL UNION, OR ANY
OF ITS OFFICERS, AGENTS OR MEMBERS, SHALL BE LIABLE FOR DAMAGES FOR
UNAUTHORIZED STOPPAGE, STRIKES, INTENTIONAL SLOWDOWNS OR SUSPENSIONS OF
WORK IF: 

"(A)  THE UNION GIVES WRITTEN NOTICE TO THE COMPANY WITHIN TWENTY
FOUR (24) HOURS OF SUCH ACTION, COPIES OF WHICH SHALL BE POSTED
IMMEDIATELY BY THE UNION ON THE BULLETIN BOARD THAT IT HAS NOT
AUTHORIZED THE STOPPAGE, STRIKE, SLOWDOWN OR SUSPENSION OF WORK, AND: 

"(B)  IF THE UNION FURTHER COOPERATES WITH THE COMPANY IN GETTING THE
EMPLOYEES TO RETURN AND REMAIN AT WORK. 

"IT IS RECOGNIZED THAT THE COMPANY HAS THE RIGHT TO TAKE DISCIPLINARY
ACTION, INCLUDING DISCHARGE, AGAINST ANY EMPLOYEE WHO ENGAGES IN ANY
UNAUTHORIZED STRIKE OR WORK STOPPAGE, SUBJECT TO THE UNION'S RIGHT TO
SUBMIT TO ARBITRATION IN ACCORDANCE WITH THE AGREEMENT THE QUESTION OF
WHETHER OR NOT THE EMPLOYEE DID ENGAGE IN ANY UNAUTHORIZED STRIKE OR
WORK STOPPAGE." 

FN5  APPARENTLY THE EMPLOYER'S THOUGHT WAS THAT THE FEDERAL LAW
SHOULD BORROW THE NEW YORK RULE WHICH IS THAT AN ARBITRATOR MAY AWARD
RELIEF IN THE NATURE OF AN INJUNCTION, ENFORCEABLE IN THE COURTS
REGARDLESS OF THE NEW YORK STATUTE SIMILAR TO THE NORRIS-LAGUARDIA
ACT.  RUPPERT V. EGELHOFER, 3 N.Y.2D 576, 148 N.E.2D 129. 

FN6  THE UNION OPPOSED ARBITRATION OF THIS DISPUTE, CLAIMING THAT
THERE WAS NO ARBITRABLE CONTROVERSY AS TO THE CLAIMED EXISTENCE OF AN
OBLIGATION TO WORK OVERTIME.  THE PARTIES SETTLED THE CONTROVERSY
WITHOUT CONCLUSIVE DETERMINATION OF THE ARBITRABILITY DISPUTE. 

FN7  WE DO NOT UNDERSTAND THE OPINIONS IN TEXTILE WORKERS UNION V.
LINCOLN MILLS, 353 U.S. 448, 455, OR UNITED STEELWORKERS V. AMERICAN
MFG. CO., 363 U.S. 564, 567, TO ENUNCIATE A FLAT AND GENERAL RULE THAT
THESE TWO CLAUSES ARE PROPERLY TO BE REGARDED AS EXACT COUNTERWEIGHTS
IN EVERY INDUSTRIAL SETTING, OR TO JUSTIFY EITHER PARTY TO THE CONTRACT
IN WRENCHING THEM FROM THEIR CONTEXT IN THE COLLECTIVE AGREEMENT ON THE
GROUND THAT THEY ARE MUTUALLY DEPENDENT COVENANTS WHICH ARE SEVERABLE
FROM THE OTHER PROMISES BETWEEN THE PARTIES. 

FN8  IN LOCAL 174 V. LUCAS FLOUR CO., 369 U.S. 95, 105-106, IT WAS
HELD THAT A CLAUSE REQUIRING THE PARTIES TO SUBMIT DISPUTES TO FINAL
DETERMINATION BY ARBITRATION IMPLIED AN OBLIGATION NOT TO STRIKE OVER
SUCH DISPUTES.  ACCORDINGLY, THE COURT UPHELD AN EMPLOYER'S SEC. 301
BREACH OF CONTRACT SUIT AGAINST THE UNION FOR STRIKE DAMAGES DUE TO A
WALKOUT OVER AN ARBITRABLE DISPUTE.  IN THAT CASE, UNLIKE THE PRESENT
ONE, THE UNION CONCEDED THAT THERE HAD BEEN A STRIKE OVER A GRIEVANCE
WHICH THE UNION HAD AGREED TO SUBMIT TO ARBITRATION.  THE ONLY QUESTION
IN DISPUTE WAS LIABILITY VEL NON.  THE UNION DID NOT CONTEND THAT, AND
THE COURT DID NOT CONSIDER WHETHER, THE EMPLOYER'S DAMAGE CLAIM SHOULD
HAVE BEEN TAKEN TO AN ARBITRATOR.  AND, OF COURSE, THE COURT DID NOT
CONSIDER WHETHER THE UNION'S BREACH OF THE NO-STRIKE CLAUSE CONSTITUTED
A REPUDIATION OR WAIVER OF ARBITRATION OF THE DAMAGE CLAIM. 

FN9  SEE IN RE PAHLBERG PETITION, 131 F.2D 968 (C.A.2D CIR.);
KULUKUNDIS SHIPPING CO. V. AMTORG TRADING CORP., 126 F.2D 978 (C.A.2D
CIR.); PENNSYLVANIA GREYHOUND LINES V. AMALGAMATED ASSN., 98 F. SUPP.
789 (W.D. PA.), REV'D ON OTHER GROUNDS, 193 F.2D 327 (C.A. 3D CIR.);
BATTER BLDG. MATS.  CO. V. KIRSCHNER, 142 CONN. 1, 110 A.2D 464; HEYMAN
V. DARWINS, LTD., (1942) A.C. 356 (H.L.)(DISAPPROVING JUREIDINI V.
NATIONAL BR. & IR. INS.  CO., (1915) A.C. 499, 505 (H.L.)).  SEE ALSO
SHANFEROKE COAL CORP. V. WESTCHESTER SERV.  CORP., 70 F.2D 297, 299
(C.A.2D CIR.), AFF'D, 293 U.S. 449, 453-454. 

FN10  6 CORBIN, CONTRACTS SEC. 1443 (1961 SUPP., N. 34, PP. 192-193)
STATES: 

"THE EFFECT OF A REPUDIATION UPON THE REPUDIATOR'S RIGHT TO
ARBITRATION SHOULD DEPEND ON THE CHARACTER OF HIS SO-CALLED
'REPUDIATION' AND THE REASONS GIVEN FOR IT.  ONE WHO FLATLY REPUDIATES
THE PROVISION FOR ARBITRATION ITSELF SHOULD HAVE NO RIGHT TO THE STAY
OF A COURT ACTION BROUGHT BY THE OTHER PARTY.  BUT MERE NONPERFORMANCE,
EVEN THOUGH UNJUSTIFIED, IS NOT PER SE A 'REPUDIATION.'  ONE WHO
ASSERTS IN GOOD FAITH THAT THE FACTS JUSTIFY HIM IN REFUSING
PERFORMANCE OF OTHER PROVISIONS IN THE CONTRACT SHOULD NOT THEREBY LOSE
HIS RIGHT TO ARBITRATION THAT HE WOULD OTHERWISE HAVE HAD.  THERE IS NO
INCONSISTENCY IN HIS DEMANDING ARBITRATION AT THE SAME TIME THAT HE
ASSERTS HIS LEGAL PRIVILEGE NOT TO PROCEED WITH PERFORMANCE." 

FN11  CF. BOONE V. EYRE, 1 BL. H.273, 126 ENG. REP. 160 (K.B.
1777)(L. MANSFIELD): "  ...  (WHERE MUTUAL CONVENANTS GO TO THE WHOLE
OF THE CONSIDERATION ON BOTH SIDES, THEY ARE MUTUAL CONDITIONS, THE ONE
PRECEDENT TO THE OTHER.  BUT WHERE THEY GO ONLY TO A PART, WHERE A
BREACH MAY BE PAID FOR IN DAMAGES, THERE THE DEFENDANT HAS A REMEDY ON
HIS COVENANT, AND SHALL NOT PLEAD IT AS A CONDITION PRECEDENT."  SEE
ALSO DERMOTT V. JONES, 23 HOW.  220, 231. 

FN12  THESE CASES ARE COLLECTED IN THE WITHDRAWN DECISION OF THE
THREE-JUDGE PANEL OF THE COURT OF APPEALS, 287 F.2D 155, 158 N. 4.  SEE
ALSO VULCAN-CINCINNATI, INC., V. UNITED STEELWORKERS, 289 F.2D 103
(C.A. 6TH CIR.). 

FN13  E.G., UNITED FURNITURE WORKERS V. COLONIAL HARDWOOD CO., 168
F.2D 33 (C.A. 4TH CIR.), WHERE ARBITRATION WAS LIMITED TO EMPLOYEE
GRIEVANCES OVER WAGES, HOURS, OR WORKING CONDITIONS, AS IN ATKINSON V.
SINCLAIR REFINING CO., ANTE, P. 238; AND UNITED AUTOMOBILE WORKERS V.
BENTON HARBOR INDUS., 242 F.2D 536 (C.A. 6TH CIR.); CUNEO PRESS, INC.,
V. KOKOMO UNION, 235 F.2D 108 (C.A. 7TH CIR.), WHERE ARBITRATION WAS
LIMITED TO EMPLOYEE GRIEVANCES.  BUT SEE UNITED E., R.&M. WKRS.  V.
MILLER METAL PRODS., INC., 215 F.2D 221 (C.A. 4TH CIR.)("ALL
DIFFERENCES, DISPUTES AND GRIEVANCES THAT MAY ARISE BETWEEN THE PARTIES
TO THIS CONTRACT WITH RESPECT TO THE MATTERS COVERED IN THIS
AGREEMENT"); MARKEL ELEC.  PRODS., INC., V. UNITED E., R.&M. WKRS., 202
F.2D 435 (C.A.2D CIR.)("DIFFERENCES  ...  AS TO THE MEANING AND
APPLICATION OF THE PROVISIONS OF THIS AGREEMENT, OR ...  ANY TROUBLE OF
ANY KIND  ...  IN THE PLANT"). 

FN14  SIGNAL-STAT CORP. V. LOCAL 475, 235 F.2D 298 (C.A.2D CIR.);
YALE & TOWNE MFG. CO. V. LOCAL 1717, 299 F.2D 882 (C.A. 3D CIR.).  SEE
ID., AT 883-884 N. 5, COLLECTING AUTHORITIES FROM LOWER COURTS.  UNDER
NEW YORK LAW, BROAD ARBITRATION CLAUSES PERMIT ARBITRATORS TO AWARD
DAMAGES.  SEE IN RE PUBLISHERS ASSN., 8 N.Y.2D 414, 171 N.E.2D 323. 

FN15  UNITED MINE WORKERS V. LABOR BOARD, 103 U.S. APP. D.C. 207, 257
F.2D 211; LODGE NO. 12 V. CAMERON IRON WORKS, INC., 257 F.2D 467, 473
(C.A. 5TH CIR.); SEE DOWD BOX CO. V. COURTNEY, 368 U.S. 502, 513; H.R.
CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 41-42. 

FN16  BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198, 203. 

FN17  COMPARE SHANFEROKE COAL CORP. V. WESCHESTER SERV. CORP., 70
F.2D 297, 299 (C.A.2D CIR., L. HAND, J.), AFF'D, 293 U.S. 449, 453-454,
WITH LANE, LTD. V. LARUS & BRO.  CO., 243 F.2D 364 (C.A.2D CIR.). 

FN18 SEE TEXT ACCOMPANYING NOTES 5-6, SUPRA. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, DISSENTING. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER THE PARTIES TO THIS
COLLECTIVE BARGAINING AGREEMENT INTENDED THAT A COURT, RATHER THAN AN
ARBITRATOR, SHOULD DECIDE THE EMPLOYER'S CLAIM THAT THE UNION HAD
VIOLATED THE NO-STRIKE CLAUSE OF THE AGREEMENT.  WHETHER A STRIKE IN
BREACH OF CONTRACT HAS OCCURRED AND, OF SO, WHAT DAMAGES HAVE BEEN
SUFFERED, ARE MATTERS WITH RESPECT TO WHICH A COURT OF LAW CAN HARDLY
BE DEEMED LESS COMPETENT, AS AN ADJUDICATOR, THAN AN ARBITRATOR.  THERE
IS NO SPECIAL REASON TO SUPPOSE THAT THE PARTIES PREFERRED TO SUBMIT
THIS KIND OF A DISPUTE TO AN ARBITRATOR WHOSE EXPERTISE IS MORE LIKELY
TO BE IN THE AREA OF EMPLOYEES' GRIEVANCE CLAIMS, AS IN UNITED
STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574, 580-582;
UNITED STEELWORKERS V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593, 597
598.  THE LESS SO, FROM THE STANDPOINT OF THE EMPLOYER, WHEN IT IS
RECOGNIZED THAT ANY DAMAGES AWARDED BY AN ARBITRATOR WOULD NOT BE SELF
ENFORCING. 

IT WOULD REQUIRE MORE PERSUASIVE EVIDENCE THAN EITHER THIS COLLECTIVE
AGREEMENT OR RECORD AFFORDS TO PERSUADE ME THAT IT WAS CONTEMPLATED
THAT THE EMPLOYER WOULD FOREGO HIS STATUTORY REMEDY UNDER SEC. 301
RESPECTING ALLEGED VIOLATIONS OF THE NO-STRIKE CLAUSE OF THE COLLECTIVE
AGREEMENT.  I WOULD REVERSE THE JUDGMENT BELOW SUBSTANTIALLY FOR THE
REASONS GIVEN IN THE PANEL OPINION OF THE COURT OF APPEALS, 287 F.2D
155. 
..END :






RUDOLPH V. UNITED STATES 370 U.S. 269 


NO. 396.  ARGUED APRIL 3, 1962 - DECIDED JUNE 18, 1962 - REPORTED BELOW:
291 F.2D 841. 


AN INSURANCE COMPANY PAID THE EXPENSES OF A GROUP OF ITS AGENTS AND
THEIR WIVES, INCLUDING PETITIONERS, TO NEW YORK CITY TO ATTEND AN
ANNUAL CONVENTION, AND THE COMMISSIONER ASSESSED THE VALUE OF THE TRIP
TO PETITIONERS AS TAXABLE INCOME.  IN A SUIT FOR REFUND, THE DISTRICT
COURT FOUND THAT THE TRIP WAS PROVIDED BY THE COMPANY PRIMARILY FOR THE
PURPOSE OF AFFORDING A PLEASURE TRIP IN THE NATURE OF A BONUS, REWARD,
AND COMPENSATION FOR A JOB WELL DONE AND THAT, FROM THE POINT OF VIEW
OF PETITIONERS, IT WAS PRIMARILY A PLEASURE TRIP AND THAT, THEREFORE,
THE VALUE OF THE TRIP WAS INCOME AND THE COSTS WERE PERSONAL AND
NONDEDUCTIBLE.  THE COURT OF APPEALS APPROVED THESE FINDINGS.   HELD:
SINCE THE ULTIMATE FACTS ARE SUBJECT TO THE "CLEARLY ERRONEOUS" RULE
AND THEIR REVIEW WOULD BE OF NO IMPORTANCE SAVE TO THE LITIGANTS
THEMSELVES, THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY
GRANTED.  PP. 269-270. 

RUDOLPH ET UX. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IN THIS CASE WAS GRANTED BECAUSE IT WAS
THOUGHT TO PRESENT IMPORTANT QUESTIONS INVOLVING THE DEFINITION OF
"INCOME" AND "ORDINARY AND NECESSARY" BUSINESS EXPENSES UNDER THE
INTERNAL REVENUE CODE.  368 U.S. 913.  AN INSURANCE COMPANY PROVIDED A
TRIP FROM ITS HOME OFFICE IN DALLAS, TEXAS, TO NEW YORK CITY FOR A
GROUP OF ITS AGENTS AND THEIR WIVES.  RUDOLPH AND HIS WIFE WERE AMONG
THE BENEFICIARIES OF THIS TRIP, AND THE COMMISSIONER ASSESSED ITS VALUE
TO THEM AS TAXABLE INCOME.*  IT APPEARS TO BE AGREED BETWEEN THE
PARTIES THAT THE TAX CONSEQUENCES OF THE TRIP TURN UPON THE
RUDOLPHS'"DOMINANT MOTIVE AND PURPOSE" IN TAKING THE TRIP AND THE
COMPANY'S IN OFFERING IT.  IN THIS REGARD THE DISTRICT COURT, ON A SUIT
FOR A REFUND, FOUND THAT THE TRIP WAS PROVIDED BY THE COMPANY FOR "THE
PRIMARY PURPOSE OF AFFORDING A PLEASURE TRIP  ...  IN THE NATURE OF A
BONUS, REWARD, AND COMPENSATION FOR A JOB WELL DONE" AND THAT FROM THE
POINT OF VIEW OF THE RUDOLPHS IT "WAS PRIMARILY A PLEASURE TRIP IN THE
NATURE OF A VACATION  ...  ."  189 F. SUPP. 2, 4-5.   THE COURT OF
APPEALS APPROVED THESE FINDINGS.  291 F.2D 841.  SUCH ULTIMATE FACTS
ARE SUBJECT TO THE "CLEARLY ERRONEOUS" RULE, CF. COMMISSIONER V.
DUBERSTEIN, 363 U.S. 278, 289-291 (1960), AND THEIR REVIEW WOULD BE OF
NO IMPORTANCE SAVE TO THE LITIGANTS THEMSELVES.  THE APPROPRIATE
DISPOSITION IN SUCH A SITUATION IS TO DISMISS THE WRIT AS IMPROVIDENTLY
GRANTED.  SEE RICE V. SIOUX CITY MEMORIAL PARK CEMETERY, 349 U.S. 70,
78 N. 2 (1955). 

*A JOINT RETURN HAD BEEN FILED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

SEPARATE OPINION OF MR. JUSTICE HARLAN. 

ALTHOUGH THE REASONS GIVEN BY THE COURT FOR DISMISSING THE WRIT AS
IMPROVIDENTLY GRANTED SHOULD HAVE BEEN PERSUASIVE AGAINST GRANTING
CERTIORARI, NOW THAT THE CASE IS HERE I THINK IT BETTER TO DECIDE IT,
TWO MEMBERS OF THE COURT HAVING DISSENTED ON THE MERITS. 

THE COURTS BELOW CONCLUDED (1) THAT THE VALUE OF THIS "ALL EXPENSE"
TRIP TO THE COMPANY-SPONSORED INSURANCE CONVENTION CONSTITUTED "GROSS
INCOME" TO THE PETITIONERS WITHIN THE MEANING OF SEC. 61 OF THE
INTERNAL REVENUE CODE OF 1954, AND (2) THAT THE AMOUNT REFLECTED WAS
NOT DEDUCTIBLE AS AN "ORDINARY AND NECESSARY" BUSINESS EXPENSE UNDER
SEC. 162 OF THE CODE.  (FN1)  BOTH CONCLUSIONS ARE, IN MY OPINION,
UNASSAILABLE UNLESS THE FINDINGS OF FACT ON WHICH THEY RESTED ARE TO BE
IMPEACHED BY US AS CLEARLY ERRONEOUS.  I DO NOT THINK THEY CAN BE ON
THIS RECORD, ESPECIALLY IN LIGHT OF THE "SEASONED AND WISE RULE OF THIS
COURT" WHICH "MAKES CONCURRENT FINDINGS OF TWO COURTS BELOW FINAL HERE
IN THE ABSENCE OF VERY EXCEPTIONAL SHOWING OF ERROR."  COMSTOCK V.
GROUP OF INSTITUTIONAL INVESTORS, 335 U.S. 211, 214. 

THE BASIC FACTS, FOUND BY THE DISTRICT COURT, ARE AS FOLLOWS. 
PETITIONERS, HUSBAND AND WIFE, RESIDE IN DALLAS, TEXAS, WHERE THE HOME
OFFICE OF THE HUSBAND'S EMPLOYER, THE SOUTHLAND LIFE INSURANCE COMPANY,
IS LOCATED.  BY HAVING SOLD A PREDETERMINED AMOUNT OF INSURANCE, THE
HUSBAND QUALIFIED TO ATTEND THE COMPANY'S CONVENTION IN NEW YORK CITY
IN 1956 AND, IN LINE WITH COMPANY POLICY, TO BRING HIS WIFE WITH HIM. 
THE PETITIONERS, TOGETHER WITH 150 OTHER EMPLOYEES AND OFFICERS OF THE
INSURANCE COMPANY AND 141 WIVES, TRAVELED TO AND FROM NEW YORK CITY ON
SPECIAL TRAINS, AND WERE HOUSED IN A SINGLE HOTEL DURING THEIR TWO-AND
ONE-HALF-DAY VISIT.  ONE MORNING WAS DEVOTED TO A "BUSINESS MEETING"
AND GROUP LUNCHEON, THE REST OF THE TIME IN NEW YORK CITY TO "TRAVEL,
SIGHTSEEING, ENTERTAINMENT, FELLOWSHIP OR FREE TIME."  THE ENTIRE TRIP
LASTED ONE WEEK. 

THE COMPANY PAID ALL THE EXPENSES OF THE CONVENTION-TRIP WHICH
AMOUNTED TO $80,000; PETITIONERS' ALLOCABLE SHARE BEING $560.  WHEN
PETITIONERS DID NOT INCLUDE THE LATTER AMOUNT IN THEIR JOINT INCOME TAX
RETURN, THE COMMISSIONER ASSESSED A DEFICIENCY WHICH WAS SUSTAINED BY
THE DISTRICT COURT, 189 F. SUPP. 2, AND ALSO BY THE COURT OF APPEALS,
ONE JUDGE DISSENTING, IN A PER CURIAM OPINION, 291 F.2D 841, CITING ITS
RECENT DECISION IN PATTERSON V. THOMAS, 289 F.2D 108, WHERE THE SAME
RESULT HAD BEEN REACHED.  THE DISTRICT COURT HELD THAT THE VALUE OF THE
TRIP BEING "IN THE NATURE OF A BONUS, REWARD, AND COMPENSATION FOR A
JOB WELL DONE," WAS INCOME TO RUDOLPH, BUT BEING "PRIMARILY A PLEASURE
TRIP IN THE NATURE OF A VACATION," THE COSTS WERE PERSONAL AND
NONDEDUCTIBLE. 

                                         I. 

UNDER SEC. 61 OF THE 1954 CODE WAS THE VALUE OF THE TRIP TO THE
TAXPAYER-HUSBAND PROPERLY INCLUDIBLE IN GROSS INCOME?  THAT SECTION
DEFINES GROSS INCOME AS "ALL INCOME FROM WHATEVER SOURCE DERIVED,"
INCLUDING, AMONG OTHER ITEMS, "COMPENSATION FOR SERVICES."  CERTAIN
INCLUDED IN THE CONCEPT OF "GROSS INCOME," (FN2) INCLUDING PRIZES AND
AWARDS (WITH CERTAIN EXCEPTIONS); (FN3) WHILE OTHER SECTIONS, SECS. 101
121, SPECIFICALLY EXCLUDE CERTAIN RECEIPTS FROM "GROSS INCOME,"
INCLUDING, FOR EXAMPLE, GIFTS AND INHERITANCES (FN4) (SEE COMMISSIONER
V. DUBERSTEIN, 363 U.S. 278), AND MEALS OR LODGINGS FURNISHED FOR THE
CONVENIENCE OF THE EMPLOYER.  (FN5)  THE TREASURY REGULATIONS EMPHASIZE
THE INCLUSIVENESS OF THE CONCEPT OF "GROSS INCOME."  (FN6) 

IN LIGHT OF THE SWEEPING SCOPE OF SEC. 61 TAXING "ALL GAINS EXCEPT
THOSE SPECIFICALLY EXEMPTED," COMMISSIONER V. GLENSHAW GLASS CO., 348
U.S. 426, 430; SEE COMMISSIONER V. LOBUE, 351 U.S. 243, 246; JAMES V.
UNITED STATES, 366 U.S. 213, 219, AND ITS PURPOSE TO INCLUDE AS TAXABLE
INCOME "ANY ECONOMIC OR FINANCIAL BENEFIT CONFERRED ON THE EMPLOYEE AS
COMPENSATION, WHATEVER THE FORM OR MODE BY WHICH IT IS EFFECTED,"
COMMISSIONER V. SMITH, 324 U.S. 177, 181, IT SEEMS CLEAR THAT THE
DISTRICT COURT'S FINDINGS, IF SUSTAINABLE, BRING THE VALUE OF THE TRIP
WITHIN THE REACH OF THE STATUTE. 

PETITIONERS DO NOT CLAIM THAT THE VALUE OF THE TRIP IS WITHIN ONE OF
THE STATUTORY EXCLUSIONS FROM "GROSS INCOME" (SEE NOTES 4 AND 5, SUPRA)
AS DID THE TAXPAYER IN PATTERSON V. THOMAS, 289 F.2D 108, 111-112;
RATHER THEY CHARACTERIZE THE AMOUNT AS A "FRINGE BENEFIT" NOT
SPECIFICALLY EXCLUDED FROM SEC. 61 BY OTHER SECTIONS OF THE STATUTE,
YET NOT INTENDED TO BE ENCOMPASSED BY ITS REACH.  CONCEDING THAT THE
STATUTORY EXCLUSIONS FROM "GROSS INCOME" ARE NOT EXHAUSTIVE, AS THE
GOVERNMENT SEEMS TO RECOGNIZE IS SO UNDER GLENSHAW, IT IS NOT NOW
NECESSARY TO EXPLORE THE EXTENT OF ANY SUCH NONSTATUTORY EXCLUSIONS. 
(FN7)  FOR IT WAS SURELY WITHIN THE COMMISSIONER'S COMPETENCE TO
CONSIDER AS "GROSS INCOME" A "REWARD, OR A BONUS GIVEN TO  ...
EMPLOYEES FOR EXCELLENCE IN SERVICE," WHICH THE DISTRICT COURT FOUND
WAS THE EMPLOYER'S PRIMARY PURPOSE IN ARRANGING THIS TRIP.  I CANNOT
SAY THAT THIS FINDING, CONFIRMED AS IT HAS BEEN BY THE COURT OF
APPEALS, IS INADEQUATELY SUPPORTED BY THIS RECORD.  (FN8)

                                         II. 

THERE REMAINS THE QUESTION WHETHER, THOUGH INCOME, THIS OUTLAY FOR
TRANSPORTATION, MEALS, AND LODGING WAS DEDUCTIBLE BY PETITIONERS AS AN
"ORDINARY AND NECESSARY" BUSINESS EXPENSE UNDER SEC. 162.  (FN9)  THE
RELEVANT FACTORS ON THIS BRANCH OF THE CASE ARE FOUND IN TREAS. REG.
SEC. 1.162-2.  (FN10)  IN SUMMARY, THE REGULATION IN PERTINENT PART
PROVIDES: 

TRAVELING EXPENSES, INCLUDING MEALS, LODGINGS AND OTHER INCIDENTALS,
REASONABLE AND NECESSARY IN THE CONDUCT OF THE TAXPAYER'S BUSINESS AND
DIRECTLY ATTRIBUTABLE TO IT ARE DEDUCTIBLE, BUT EXPENSES OF A TRIP
"UNDERTAKEN FOR OTHER THAN BUSINESS PURPOSES" ARE "PERSONAL EXPENSES"
AND THE MEALS AND LODGINGS ARE "LIVING EXPENSES."  TREAS. REG.  SEC.
1.162-2(A). 

IF A TAXPAYER WHO TRAVELS TO A DESTINATION ENGAGES IN BOTH "BUSINESS
AND PERSONAL ACTIVITIES," THE TRAVELING EXPENSES ARE DEDUCTIBLE ONLY IF
THE TRIP IS "RELATED PRIMARILY" TO THE TAXPAYER'S BUSINESS; IF
"PRIMARILY PERSONAL," THE TRAVELING EXPENSES ARE NOT DEDUCTIBLE EVEN
THOUGH THE TAXPAYER ENGAGES IN SOME BUSINESS THERE; YET EXPENSES
ALLOCABLE TO THE TAXPAYER'S TRADE OR BUSINESS THERE ARE DEDUCTIBLE EVEN
THOUGH THE TRAVEL EXPENSES TO AND FRO ARE NOT.  (FN11)  ID., SEC. 1.162
2(B)(1). 

WHETHER A TRIP IS RELATED PRIMARILY TO THE TAXPAYER'S BUSINESS OR IS
PRIMARILY PERSONAL IN NATURE "DEPENDS ON THE FACTS AND CIRCUMSTANCES IN
EACH CASE."  ID., SEC. 1.162-2(B)(2); SO TOO WITH EXPENSES PAID OR
INCURRED IN ATTENDING A CONVENTION.  ID., SEC. 1.162-2(D). 

FINALLY, THE DEDUCTIBILITY OF THE EXPENSES OF A TAXPAYER'S WIFE WHO
ACCOMPANIES HER HUSBAND DEPENDS, FIRST, ON WHETHER HIS TRIP IS A
"BUSINESS TRIP."  ID., SEC. 1.162-2(C); IF SO, IT MUST FURTHER BE SHOWN
THAT THE WIFE'S PRESENCE ON THE TRIP ALSO HAD A BONA FIDE BUSINESS
PURPOSE.  IBID. 

WHERE, AS HERE, IT MAY BE ARGUABLE THAT THE TRIP WAS BOTH FOR
BUSINESS AND PERSONAL REASONS, THE CRUCIAL QUESTION IS WHETHER, UNDER
ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PURPOSE OF THE TRIP
WAS "RELATED PRIMARILY TO BUSINESS" OR WAS, RATHER, "PRIMARILY PERSONAL
IN NATURE."  THAT OTHER TRIPS TO OTHER CONVENTIONS OR MEETINGS BY OTHER
TAXPAYERS WERE HELD TO BE PRIMARILY RELATED TO BUSINESS IS OF NO
RELEVANCE HERE; THAT CERTAIN DOCTORS, LAWYERS, CLERGYMEN, INSURANCE
AGENTS OR OTHERS (FN12) HAVE OR HAVE NOT BEEN PERMITTED SIMILAR
DEDUCTIONS ONLY SHOWS THAT IN THE CIRCUMSTANCES OF THOSE CASES, THE
COURTS THOUGHT THAT THE EXPENSES WERE OR WERE NOT DEDUCTIBLE AS
"RELATED PRIMARILY TO BUSINESS." 

THE HUSBAND PLACES GREAT EMPHASIS ON THE FACT THAT HE IS AN ENTRAPPED
"ORGANIZATION MAN," REQUIRED TO ATTEND SUCH CONVENTIONS, AND THAT HIS
FUTURE PROMOTIONS DEPEND ON HIS PRESENCE.  SUFFICE IT TO SAY THAT THE
DISTRICT COURT DID NOT FIND ANY ELEMENT OF COMPULSION; TO THE CONTRARY,
IT FOUND THAT THE PETITIONERS REGARDED THE CONVENTION IN NEW YORK CITY
AS A PLEASURE TRIP IN THE NATURE OF A VACATION.  AGAIN, I CANNOT SAY
THAT THESE FINDINGS ARE WITHOUT ADEQUATE EVIDENTIARY SUPPORT.  SUPRA,
PP. 273-274. 

THE TRIP NOT HAVING BEEN PRIMARILY A BUSINESS TRIP, THE WIFE'S
EXPENSES ARE NOT DEDUCTIBLE.  IT IS NOT NECESSARY, THEREFORE, TO
EXAMINE WHETHER THEY WOULD OR WOULD NOT BE DEDUCTIBLE IF, TO THE
CONTRARY, THE HUSBAND'S TRIP WAS RELATED PRIMARILY TO BUSINESS. 

WHERE, AS HERE, TWO COURTS BELOW HAVE RESOLVED THE DETERMINATIVE
FACTUAL ISSUES AGAINST THE TAXPAYERS, ACCORDING TO THE RULES OF LAW SET
FORTH IN THE STATUTE AND REGULATIONS, IT IS NOT FOR THIS COURT TO RE
EXAMINE THE EVIDENCE, AND DISTURB THEIR FINDINGS, UNLESS "CLEARLY
ERRONEOUS."  THAT IS NOT THE SITUATION HERE. 

I WOULD AFFIRM. 

FN1  AS I SEE THIS CASE, THERE IS NO NEED TO EXPLORE WHETHER THE
PROPER REPORTING PROCEDURE FOR A DEDUCTIBLE EXPENSE IS NOT TO INCLUDE
IT IN INCOME IN THE FIRST PLACE, CF. TREAS. REG. SEC. 1.162-17(B), OR
TO "RUN IT THROUGH" THE TAXPAYER'S INCOME WITH AN OFFSETTING DEDUCTION
IN THE SAME AMOUNT. 

FN2  E.G., SEC. 71 (ALIMONY AND SEPARATE MAINTENANCE PAYMENTS), SEC.
72 (ANNUITIES; CERTAIN PROCEEDS OF ENDOWMENT AND LIFE INSURANCE
CONTRACTS), SEC. 73 (SERVICES OF CHILD). 

FN3  SEC. 74:  (A)  GENERAL RULE.  - EXCEPT AS PROVIDED IN SUBSECTION
(B) AND IN SECTION 117 (RELATING TO SCHOLARSHIPS AND FELLOWSHIP
GRANTS), GROSS INCOME INCLUDES AMOUNTS RECEIVED AS PRIZES AND AWARDS. 

"(B)  EXCEPTION.  - GROSS INCOME DOES NOT INCLUDE AMOUNTS RECEIVED AS
PRIZES AND AWARDS MADE PRIMARILY IN RECOGNITION OF RELIGIOUS,
CHARITABLE, SCIENTIFIC, EDUCATIONAL, ARTISTIC, LITERARY, OR CIVIC
ACHIEVEMENT, BUT ONLY IF: 

"(1)  THE RECIPIENT WAS SELECTED WITHOUT ANY ACTION ON HIS PART TO
ENTER THE CONTEST OR PROCEEDING; AND: 

"(2)  THE RECIPIENT IS NOT REQUIRED TO RENDER SUBSTANTIAL FUTURE
SERVICES AS A CONDITION TO RECEIVING THE PRIZE OR AWARD." 

FN4  SEC. 102. 

FN5  SEC. 119.  SOME OF THE OTHER EXCLUSIONS ARE SEC. 101 (CERTAIN
DEATH PAYMENTS), SEC. 103 (INTEREST ON CERTAIN GOVERNMENTAL
OBLIGATIONS), SEC. 104 (COMPENSATION FOR INJURIES OR SICKNESS), SEC.
105 (AMOUNTS RECEIVED UNDER ACCIDENT AND HEALTH PLANS), SEC. 113
(MUSTERING-OUT PAYMENTS FOR MEMBERS OF THE ARMED FORCES), SEC. 117
(SCHOLARSHIP AND FELLOWSHIP GRANTS). 

FN6  TREAS. REG. SEC. 1.61-1(A) PROVIDES: 

"GROSS INCOME MEANS ALL INCOME FROM WHATEVER SOURCE DERIVED, UNLESS
EXCLUDED BY LAW.  GROSS INCOME INCLUDES INCOME REALIZED IN ANY FORM,
WHETHER IN MONEY, PROPERTY, OR SERVICES.  INCOME MAY BE REALIZED,
THEREFORE, IN THE FORM OF SERVICES, MEALS, ACCOMMODATIONS, STOCK, OR
OTHER PROPERTY, AS WELL AS IN CASH."  SEE ALSO TREAS. REG. SEC. 1.61
2(A)(1), (D) AND SEC. 1.74-1(A). 

FN7  PETITIONERS RELY ON SEC. 3401 OF THE 1954 CODE, RELATING TO
WITHHOLDING TAXES, AND MORE ESPECIALLY ON TREAS. REG. SEC. 31.3401(A)
1(B)(10) PROVIDING THAT CERTAIN FRINGE BENEFITS ARE NOT CONSIDERED
"WAGES" SUBJECT TO WITHHOLDING.  THE GOVERNMENT ADMITS THAT NOT ALL
"FRINGE BENEFITS" HAVE BEEN TAXED AS INCOME, BUT IT IS ENOUGH TO POINT
OUT HERE THAT THE WITHHOLDING TAX ANALOGY IS NOT PERFECT, FOR PAYMENTS
TO LAID-OFF EMPLOYEES FROM COMPANY-FINANCED SUPPLEMENTAL UNEMPLOYMENT
BENEFIT PLANS ARE "TAXABLE INCOME" TO THE EMPLOYEES ALTHOUGH NOT
"WAGES" SUBJECT TO WITHHOLDING.  REV. RUL. 56-249, 1956-1 CUM. BULL. 
488, AS AMPLIFIED BY REV. RUL. 60-330, 1960-2 CUM. BULL.  46.    FN8
THE DISTRICT COURT SAID (189 F. SUPP., AT 4-5): 

"ALL OF THE EVIDENCE CONSIDERED, WE THINK IT IRREFUTABLY LEADS TO
THIS CONCLUSION:  THAT THE INSURANCE COMPANY WAS JUST DOING A GRACIOUS
MAGNANIMOUS THING OF AWARDING THOSE LEADING AGENTS A TRIP JUST AS MUCH
AS IF IT HAD AWARDED THEM AN AUTOMOBILE, OR SUIT OF CLOTHES  ...  . 

     *         *         *         *         * 

"  ...  WE CONCLUDE, THAT THE TRIP WAS EARNED BY  ...  RUDOLPH, AND
WAS IN THE NATURE OF A BONUS, REWARD, AND COMPENSATION FOR A JOB WELL
DONE." 

IT IS PERTINENT TO NOTE THAT IN ADDITION TO THE FACTS REFERRED TO ON
P. 271, SUPRA, THE RECORD SHOWS THAT COMPANY-SPONSORED CONVENTIONS OF
THE SAME KIND HAVE IN RECENT YEARS BEEN HELD IN CANADA, MEXICO CITY,
HAVANA, COLORADO AND CALIFORNIA, PLACES WELL KNOWN FOR THEIR APPEAL TO
TOURISTS, AND FAR REMOVED FROM THE HOME OFFICE IN DALLAS.  WHILE THIS
FACTOR ALONE DOES NOT RENDER THE EXPENSES NONDEDUCTIBLE, SEE I.R.S.
NEWS REL. NO. IR-394, AUGUST 3, 1961, IT CERTAINLY WAS A RELEVANT
CIRCUMSTANCE FOR THE DISTRICT COURT TO CONSIDER. 

FN9  "(A)  IN GENERAL.  - THERE SHALL BE ALLOWED AS A DEDUCTION ALL
THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE
YEAR IN CARRYING ON ANY TRADE OR BUSINESS, INCLUDING: 

     *         *         *         *         * 

"(2)  TRAVELING EXPENSES (INCLUDING THE ENTIRE AMOUNT EXPENDED FOR
MEALS AND LODGING) WHILE AWAY FROM HOME IN THE PURSUIT OF A TRADE OR
BUSINESS  ...  ." 

NO QUESTION IS RAISED IN THIS CASE AS TO WHETHER THE $80,000 PAID BY
THE COMPANY FOR THE TOTAL CONVENTION EXPENSE IS DEDUCTIBLE BY THE
CORPORATION. 

THERE IS NO NEED TO EXPLORE THE LACK OF SYMMETRY IN CERTAIN "INCOME"
AND "DEDUCTIBILITY" AREAS IN THE 1954 CODE PERMITTING EMPLOYERS TO
PROVIDE CERTAIN "FRINGE BENEFITS" TO EMPLOYEES - SUCH AS PARKING
FACILITIES, SWIMMING POOLS, MEDICAL SERVICES - WHICH HAVE NOT GENERALLY
BEEN CONSIDERED INCOME TO THE EMPLOYEE, BUT WHICH, IF PAID FOR BY THE
EMPLOYEE WITH HIS OWN FUNDS, WOULD NOT BE A DEDUCTIBLE EXPENSE.  THE
PRACTICALITIES OF A TAX SYSTEM DO NOT DEMAND HYPOTHETICAL OR
THEORETICAL PERFECTION, AND THESE WORKADAY PROBLEMS ARE PROPERLY THE
CONCERN OF THE COMMISSIONER, NOT OF THE COURTS. 

FN10  ALTHOUGH THIS REGULATION IS PART OF THOSE PROMULGATED ON APRIL
3, 1958, IT IS APPLICABLE TO THIS 1956 TRANSACTION.  THE POWER TO MAKE
THE REGULATIONS PROSPECTIVE ONLY, INT. REV. CODE OF 1954, SEC. 7805(B),
WAS NOT EXERCISED, AND THEY WERE MADE APPLICABLE TO TAXABLE YEARS
BEGINNING AFTER DECEMBER 31, 1953.  T.D. 6291, 1958-1 CUM. BULL.  63. 
MOREOVER, THE RESULT HERE WOULD NOT BE DIFFERENT UNDER THE PRIOR
COMPARABLE REGULATION.  TREAS. REG.  118, SEC. 39.23(A)-2(A). 

FN11  NO CLAIM HAS BEEN MADE BY THE HUSBAND IN THIS CASE THAT
SPECIFIC BUSINESS EXPENSES WHICH MAY HAVE BEEN INCURRED AT THE
CONVENTION IN NEW YORK ARE DEDUCTIBLE.  THE ONLY ISSUE IS THE
DEDUCTIBILITY OF THE ENTIRE TRIP EXPENSE.  COMPARE PATTERSON V. THOMAS,
289 F.2D 108, 114 AND N. 13. 

FN12  DEDUCTIONS ALLOWED:  COFFEY V. COMMISSIONER, 21 B.T.A. 1242
(DOCTOR); COUGHLIN V. COMMISSIONER, 203 F.2D 307 (LAWYER); SHUTTER V.
COMMISSIONER, 2 B.T.A. 23 (CLERGYMAN); CALLINAN V. COMMISSIONER, 12
T.C.M. 170 (LEGAL SECRETARY); SEE REV. RUL. 59-316, 1959-2 CUM. BULL. 
57; REV. RUL. 60-16, 1960-1 CUM. BULL.  58. 

DEDUCTIONS NOT ALLOWED:  DUNCAN V. COMMISSIONER, 30 T.C. 386
(DOCTOR); ELLIS V. BURNET, 60 APP. D.C. 193, 50 F.2D 343 (LAWYER); REED
V. COMMISSIONER, 35 T.C. 199 (LAWYER); PATTERSON V. THOMAS, 289 F.2D
108 (INSURANCE AGENT); RUSSELL V. COMMISSIONER, 11 T.C.M. 334 (RAILROAD
FIREMAN). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

           I. 

IT COULD NOT, I THINK, BE SERIOUSLY CONTENDED THAT A PROFESSIONAL
MAN, SAY A SENATOR OR A CONGRESSMAN, WHO ATTENDS A CONVENTION TO READ A
PAPER OR CONDUCT A SEMINAR WITH ALL EXPENSES PAID HAS RECEIVED "INCOME"
WITHIN THE MEANING OF THE INTERNAL REVENUE CODE.  NOR WOULD IT MATTER,
I ASSUME, THAT HE TOOK HIS WIFE AND THAT HER EXPENSES WERE ALSO PAID. 
INCOME HAS THE CONNOTATION OF SOMETHING OTHER THAN THE MERE PAYMENT OF
EXPENSES.  THE STATUTE, 26 U.S.C. SEC. 61, SPEAKS IN TERMS OF FINANCIAL
GAIN, OF COMPENSATION FOR SERVICES, "INCLUDING FEES, COMMISSIONS, AND
SIMILAR ITEMS."  THE FORM OF PAYMENT FOR SERVICES COVERS A WIDE RANGE. 
TREASURY REGULATIONS SEC. 1.61-1 PROVIDE: 

"GROSS INCOME INCLUDES INCOME REALIZED IN ANY FORM, WHETHER IN MONEY,
PROPERTY, OR SERVICES.  INCOME MAY BE REALIZED, THEREFORE, IN THE FORM
OF SERVICES, MEALS, ACCOMMODATIONS, STOCK, OR OTHER PROPERTY, AS WELL
AS IN CASH." 

THE FORMULA "ALL EXPENSES PAID" MIGHT BE THE DISGUISE WHEREBY
COMPENSATION "FOR SERVICES" IS PAID.   YET IT WOULD BE A RARE CASE
INDEED WHERE ONE COULD CONCLUDE THAT A PERSON WHO GETS ONLY HIS
EXPENSES FOR ATTENDANCE AT ONE CONVENTION GETS "INCOME" IN THE
STATUTORY SENSE.  IF THIS ARRANGEMENT WERE REGULAR AND FREQUENT OR IF
IT HAD THE EARMARKS OF A SHAM DEVICE AS A CLOAK FOR REMUNERATION, THERE
WOULD BE ROOM FOR FACT-FINDERS TO CONCLUDE THAT IT WAS EVASIVE.  BUT
ISOLATED ENGAGEMENTS OF THE KIND HERE IN QUESTION HAVE NO RATIONAL
CONNECTION WITH COMPENSATION "FOR SERVICES" RENDERED. 

IT IS TRUE THAT PETITIONER WAS AN EMPLOYEE AND THAT THE EXPENSES FOR
ATTENDING THE CONVENTION WERE PAID BY HIS EMPLOYER.  HE QUALIFIED TO
ATTEND THE CONVENTION BY SELLING AN AMOUNT OF INSURANCE THAT MET A
QUOTA SET BY THE COMPANY.  OTHER SALESMEN ALSO QUALIFIED, SOME
ATTENDING AND SOME NOT ATTENDING.  THEY WENT FROM DALLAS, TEXAS, TO NEW
YORK CITY, WHERE THEY STAYED TWO AND A HALF DAYS.  ONE DAY WAS GIVEN TO
A BUSINESS SESSION AND A LUNCHEON; THE REST OF THE TIME WAS LEFT FOR
SOCIAL EVENTS. 

ON THIS RECORD THERE IS NO ROOM FOR A FINDING OF FACT THAT THE
"EXPENSES PAID" WERE "FOR SERVICES" RENDERED.  THEY WERE APPARENTLY A
PROPER INCOME TAX DEDUCTION FOR THE EMPLOYER.  THE RECORD IS REPLETE
WITH EVIDENCE THAT FROM MANAGEMENT'S POINT OF VIEW IT WAS GOOD BUSINESS
TO SPEND MONEY ON A CONVENTION FOR ITS LEADING AGENTS - A CONVENTION
THAT NOT ONLY KEPT THE GROUP TOGETHER IN NEW YORK CITY, BUT IN TRANSIT
AS WELL, GIVING AMPLE TIME FOR GROUP DISCUSSIONS, EXCHANGES OF
EXPERIENCE, AND EDUCATIONAL TRAINING.  IT WAS THE EXIGENCIES OF THE
EMPLOYMENT THAT GAVE RISE TO THE CONVENTION.  THERE WAS NOTHING
DISHONEST, ILLEGITIMATE, OR UNETHICAL ABOUT THIS TRANSACTION.  NO
SERVICES WERE RENDERED.  NEW YORK CITY MAY OR MAY NOT HAVE BEEN
ATTRACTIVE TO THE AGENTS AND THEIR WIVES.  WHETHER A PERSON ENJOYS OR
DISLIKES THE TRIP THAT HE MAKES "WITH ALL EXPENSES PAID" HAS NO MORE TO
DO WITH WHETHER THE EXPENSES PAID WERE COMPENSATION "FOR SERVICES"
RENDERED THAN DOES HIS ATTITUDE TOWARD HIS JOB. 

IN POPULAR UNDERSTANDING A TRIP TO A CONVENTION "WITH ALL EXPENSES
PAID" MAY BE AN AWARD.  YET THE TAX LAWS ARE FILLED WITH EXEMPTIONS FOR
"AWARDS" WHICH ARE NOT CONSIDERED TO BE INCOME.  THE EXEMPTION OF GIFTS
IS ONE EXAMPLE.  OTHERS ARE THE EXEMPTIONS OF THE PROCEEDS OF LIFE
INSURANCE PAYABLE AT DEATH, DISABILITY BENEFITS, THE RENTAL VALUES OF
PARSONAGES, SCHOLARSHIP AND FELLOWSHIP GRANTS, ALLOWANCES OF U.S.
EMPLOYEES ABROAD, MUSTERING-OUT PAYMENTS TO MEMBERS OF THE ARMED
FORCES, ETC.  EMPLOYEES MAY RECEIVE FROM THEIR EMPLOYERS MANY FRINGE
BENEFITS THAT ARE NOT INCOME.  TREASURY REGULATIONS SEC. 31.3401(A)
1(B)(10) PROVIDE: 

"ORDINARILY, FACILITIES OR PRIVILEGES (SUCH AS ENTERTAINMENT, MEDICAL
SERVICES, OR SO-CALLED 'COURTESY' DISCOUNTS ON PURCHASES), FURNISHED OR
OFFERED BY AN EMPLOYER TO HIS EMPLOYEES GENERALLY, ARE NOT CONSIDERED
AS WAGES SUBJECT TO WITHHOLDING IF SUCH FACILITIES OR PRIVILEGES ARE OF
RELATIVELY SMALL VALUE AND ARE OFFERED OR FURNISHED BY THE EMPLOYER
MERELY AS A MEANS OF PROMOTING THE HEALTH, GOOD WILL, CONTENTMENT, OR
EFFICIENCY OF HIS EMPLOYEES." 

THE FRINGE BENEFITS OF THIS ONE CONVENTION TRIP ARE LESS OBVIOUSLY
INCOME THAN THE FRINGE BENEFITS LISTED IN THE REGULATIONS.  FOR THE
LATTER ARE CONSTANTLY RECURRING - DAY AFTER DAY, WEEK AFTER WEEK. 
MOREOVER, ON THIS RECORD THE CONVENTION PROMOTES THE "EFFICIENCY" OF
THE AGENTS AS MUCH AS THE OTHER FRINGE BENEFITS ENUMERATED IN THE
REGULATIONS. 

                                       II. 

THE EXPENSES, IF "INCOME," ARE PLAINLY DEDUCTIBLE.  THE GOVERNMENT,
HOWEVER, SAYS THAT OUR PROBLEM IS TO DETERMINE "WHETHER IT IS
CONSISTENT WITH THE ENDS OF AN EQUITABLE AND WORKABLE TAX SYSTEM" TO
MAKE THEM SUCH.  THE PROBLEM OF DESIGNING AN "EQUITABLE" TAX SYSTEM IS,
HOWEVER, FOR CONGRESS, NOT FOR THE COURT. 

THE TEST OF DEDUCTIBILITY TO BE APPLIED HERE IS WHETHER THE EXPENSES
ARE "ORDINARY AND NECESSARY" IN THE CARRYING ON OF PETITIONER'S
BUSINESS.  THE ACT IS EXPLICIT IN PERMITTING THE DEDUCTION OF TRAVELING
EXPENSES (INCLUDING THE ENTIRE AMOUNT EXPENDED FOR MEALS AND LODGING)
WHILE AWAY FROM HOME IN THE "PURSUIT OF A TRADE OR BUSINESS," 26 U.S.C.
SEC. 162(A)(2). 

THE REGULATIONS ARE EVEN MORE EXPLICIT.  SECTION 1.162-2(B)(1)
PROVIDES: 

"IF A TAXPAYER TRAVELS TO A DESTINATION AND WHILE AT SUCH DESTINATION
ENGAGES IN BOTH BUSINESS AND PERSONAL ACTIVITIES, TRAVELING EXPENSES TO
AND FROM SUCH DESTINATION ARE DEDUCTIBLE ONLY IF THE TRIP IS RELATED
PRIMARILY TO THE TAXPAYER'S TRADE OR BUSINESS.  IF THE TRIP IS
PRIMARILY PERSONAL IN NATURE, THE TRAVELING EXPENSES TO AND FROM THE
DESTINATION ARE NOT DEDUCTIBLE EVEN THOUGH THE TAXPAYER ENGAGES IN
BUSINESS ACTIVITIES WHILE AT SUCH DESTINATION." 

THUS, BY THE VERY TERMS OF THE REGULATIONS A TAXPAYER WHO COMBINES
BUSINESS AND PLEASURE MAY DEDUCT ALL "TRAVELING EXPENSES," PROVIDED THE
BUSINESS PURPOSE IS DOMINANT. 


"WHETHER A TRIP IS RELATED PRIMARILY TO THE TAXPAYER'S TRADE OR
BUSINESS OR IS PRIMARILY PERSONAL IN NATURE DEPENDS ON THE FACTS AND
CIRCUMSTANCES IN EACH CASE.  THE AMOUNT OF TIME DURING THE PERIOD OF
THE TRIP WHICH IS SPENT ON PERSONAL ACTIVITY COMPARED TO THE AMOUNT OF
TIME SPENT ON ACTIVITIES DIRECTLY RELATING TO THE TAXPAYER'S TRADE OR
BUSINESS IS AN IMPORTANT FACTOR IN DETERMINING WHETHER THE TRIP IS
PRIMARILY PERSONAL.  IF, FOR EXAMPLE, A TAXPAYER SPENDS ONE WEEK WHILE
AT A DESTINATION ON ACTIVITIES WHICH ARE DIRECTLY RELATED TO HIS TRADE
OR BUSINESS AND SUBSEQUENTLY SPENDS AN ADDITIONAL FIVE WEEKS FOR
VACATION OR OTHER PERSONAL ACTIVITIES, THE TRIP WILL BE CONSIDERED
PRIMARILY PERSONAL IN NATURE IN THE ABSENCE OF A CLEAR SHOWING TO THE
CONTRARY." 

WHERE, AS HERE, AT LEAST ONE-HALF OF THE TIME IS SPENT ON MUNDANE
"BUSINESS" ACTIVITIES, (FN1) THE CASE IS NOWHERE NEAR THE COLORABLE
TRANSACTION DESCRIBED IN SEC. 1.162-2(B)(2). 

I SEE NO REASON TO TAKE THIS CASE OUT OF THE MAIN STREAM OF
PRECEDENTS AND ESTABLISH A SPECIAL RULE FOR INSURANCE CONVENTIONS. 
JUDGE BROWN, DISSENTING IN THE COURT OF APPEALS, SHOWS HOW
DISCRIMINATORY THIS DECISION IS: 

"DEDUCTIONS HAVE BEEN ALLOWED AS 'ORDINARY AND NECESSARY' TO
CLERGYMEN ATTENDING A CHURCH CONVENTION; TO EXPENSES OF AN EMPLOYEE
ATTENDING CONVENTIONS OF A RELATED BUSINESS GROUP; TO A LAWYER
ATTENDING A MEETING OF THE AMERICAN BAR ASSOCIATION; TO A LEGAL
SECRETARY ATTENDING THE NATIONAL CONVENTION OF THE NATIONAL
ASSOCIATION; TO PHYSICIANS ATTENDING MEDICAL CONVENTIONS; TO CERTIFIED
PUBLIC ACCOUNTANTS ATTENDING CONVENTIONS; TO UNIVERSITY TEACHERS IN
ATTENDING CONVENTIONS OR SCIENTIFIC MEETINGS; TO PROFESSIONAL
CARTOONISTS ATTENDING POLITICAL CONVENTIONS; TO PERSONS ATTENDING THE
RED CROSS CONVENTION; TO SCHOOL TEACHERS ATTENDING SUMMER SCHOOL; TO
ATTORNEYS ATTENDING AN INSTITUTE ON FEDERAL TAXATION; TO EMPLOYEES SENT
TO REFRESHER COURSES TO BECOME MORE ACQUAINTED WITH NEW PROCESSES IN
THE INDUSTRY; TO A FURNITURE STORE SENDING ITS BUYERS TO THE ANNUAL
FURNITURE MART; TO REPRESENTATIVES TO ANNUAL CONVENTIONS OF TRADE
ASSOCIATIONS; AND TO AN INSURANCE AGENT AWAY FROM HOME ON BUSINESS." 
291 F.2D 841, 844-845. 

INSURANCE CONVENTIONS GO BACK AT LEAST TO 1924 (REPORT NO. 15, LIFE
INSURANCE SALES RESEARCH BUREAU, NOV. 1924) AND ARE PREMISED ON THE
IDEA THAT AGENTS AND COMPANIES BENEFIT FROM THE KNOWLEDGE AND INCREASE
IN MORALE WHICH RESULT FROM THEM.  (FN2)  WHY THEY SHOULD BE TREATED
DIFFERENTLY FROM OTHER CONVENTIONS IS A MYSTERY.  IT CANNOT BE, AS THE
DISTRICT JUDGE THOUGHT AND AS THE GOVERNMENT SEEMS TO ARGUE, BECAUSE
GOING TO NEW YORK CITY IS, AS A MATTER OF LAW, A "PLEASURE TRIP."  IF
WE ARE IN THE FIELD OF JUDICIAL NOTICE, I WOULD THINK THAT SOME MIGHT
CONCLUDE THAT THE WEEKEND IN NEW YORK CITY WAS A CHORE AND THAT THOSE
WHO WENT SACRIFICED VALUABLE TIME THAT MIGHT BETTER HAVE BEEN SPENT ON
THE FARM, IN THE WOODS, OR ALONG THE SEASHORE. 

MOREOVER, FEDERAL REVENUE AGENTS ATTENDING THEIR CONVENTION ARE GIVEN
A DEDUCTION FOR THE EXPENSES THEY INCUR.  WE ARE ADVISED THAT: 

"  ...  THE COMMISSIONER HAS RECENTLY WITHDRAWN HIS OBJECTIONS IN TWO
TAX COURT CASES TO THE DEDUCTION OF CONVENTION EXPENSES INCURRED BY TWO
IRS EMPLOYEES IN ATTENDING CONVENTIONS OF THE NATIONAL ASSOCIATION OF
INTERNAL REVENUE EMPLOYEES. 

"NO EXPLANATION HAS BEEN GIVEN PUBLICLY FOR THE TAX COURT ACTION OF
THE COMMISSIONER, IT BEING GENERALLY PRESUMED THAT THE IRS EMPLOYEES
MET THE TESTS OF REG. SEC. 1.162-2(D) BY SHOWING A SUFFICIENT
RELATIONSHIP BETWEEN THE TRADE OR BUSINESS OF BEING AN IRS EMPLOYEE AND
ATTENDANCE AT CONVENTIONS OF THE NAIRE.  THE NATIONAL ASSOCIATION OF
INTERNAL REVENUE EMPLOYEES HAS HAILED THE COMMISSIONER'S ACTIONS AS
SETTING A PRECEDENT WHICH CAN BE CITED BY IRS EMPLOYEES WHEN TAKING
DEDUCTIONS FOR EXPENSES INCURRED IN ATTENDING NAIRE CONVENTIONS."  CCH
STANDARD FEDERAL TAX REPORTS NO. 23, APRIL 19, 1961, PT. 1, P. 2.    IT
IS ODD, INDEED, THAT REVENUE AGENTS NEED MAKE NO ACCOUNTING OF THE
MOVIES THEY SAW OR THE NIGHTCLUBS THEY ATTENDED, IN ORDER TO GET THE
DEDUCTION, WHILE INSURANCE AGENTS MUST. 

                                   III. 

THE WIFE'S EXPENSES (FN3) ARE, ON THIS RECORD, ALSO DEDUCTIBLE.  THE
TREASURY REGULATIONS STATE IN SEC. 1.162-2(C): 

"WHERE A TAXPAYER'S WIFE ACCOMPANIES HIM ON A BUSINESS TRIP, EXPENSES
ATTRIBUTABLE TO HER TRAVEL ARE NOT DEDUCTIBLE UNLESS IT CAN BE
ADEQUATELY SHOWN THAT THE WIFE'S PRESENCE ON THE TRIP HAS A BONA FIDE
BUSINESS PURPOSE.  THE WIFE'S PERFORMANCE OF SOME INCIDENTAL SERVICE
DOES NOT CAUSE HER EXPENSES TO QUALIFY AS DEDUCTIBLE BUSINESS
EXPENSES.  THE SAME RULES APPLY TO ANY OTHER MEMBERS OF THE TAXPAYER'S
FAMILY WHO ACCOMPANY HIM ON SUCH A TRIP." 

THE CIVIL LAW PHILOSOPHY, EXPRESSED IN THE COMMUNITY PROPERTY
CONCEPT, ATTRIBUTES HALF OF THE HUSBAND'S EARNINGS TO THE WIFE - AN
EQUITABLE IDEA THAT AT LONG LAST WAS REFLECTED IN THE IDEA OF INCOME
SPLITTING UNDER THE FEDERAL INCOME TAX LAW.  (FN4)  THE WIFE'S
CONTRIBUTION TO THE BUSINESS PRODUCTIVITY OF THE HUSBAND IN AT LEAST
SOME ACTIVITIES IS WELL KNOWN.  IT WAS SPECIALLY RECOGNIZED IN THE
INSURANCE FIELD LONG BEFORE THE ISSUE OF DEDUCTIBILITY OF HER EXPENSES
AROSE UNDER THE FEDERAL INCOME TAX.  (FN5)  BUSINESS REASONS MOTIVATED
THE INCLUSION OF WIVES IN THIS PARTICULAR INSURANCE CONVENTION.  AN
INSURANCE EXECUTIVE TESTIFIED AT THIS TRIAL: 

"Q.  I HAND YOU PLAINTIFF'S EXHIBIT 15, AND YOU WILL NOTICE IT IS A
LETTER ADDRESSED TO 'JOHN DOE'; ALSO A BULLETIN ENTITLED 'A NEW PARTNER
HAS BEEN FORMED.' 

"WILL YOU TELL US WHAT THAT CONSISTS OF? 

"A.  THIS IS A LETTER ADDRESSED TO THE WIFE OF AN AGENT, A NEW AGENT,
AS WE MAKE THE CONTRACT WITH HIM.  THIS LETTER IS SENT TO HIS WIFE
WITHIN A FEW DAYS AFTER THE CONTRACT, ENCLOSING THIS BOOKLET EXPLAINING
TO HER HOW SHE CAN HELP HER HUSBAND IN THE LIFE INSURANCE BUSINESS. 

   *         *         *         *         * 

"Q.  PLEASE TELL US, AS BRIEFLY AS YOU CAN AND YET IN DETAIL, HOW YOU
AS AGENCY DIRECTOR FOR SOUTHLAND ATTEMPT TO INTEGRATE THE WIVES'
PERFORMANCE WITH THE PERFORMANCE OF AGENTS IN THE LIFE INSURANCE
BUSINESS. 

"A.  ONE OF THE IMPORTANT FUNCTIONS WE HAVE IN MIND IS THE ATTENDANCE
AT THESE CONVENTIONS.  IN ADDITION TO THAT COMMUNICATION, OCCASIONALLY
THERE ARE LETTERS THAT WILL BE WRITTEN TO THE WIFE CONCERNING ANY
SPECIAL SALES EFFORT THAT MIGHT BE DESIRED OR PROMOTED.  THE COMPANY
HAS A MONTHLY PUBLICATION FOR THE AGENTS AND EMPLOYEES THAT IS MAILED
TO THEIR HOMES SO THE WIFE WILL HAVE A CONVENIENT OPPORTUNITY TO SEE
THE MAGAZINE AND READ IT. 

"AT MOST OF OUR CONVENTION PROGRAMS, WE HAVE SOME SPECIFIC REFERENCE
TO THE WIFE'S WORK, AND IN QUITE A FEW OF THE CONVENTION PROGRAMS WE
HAVE HAD WIVES APPEAR ON THE PROGRAM. 

"Q.  SUPPOSE YOU DIDN'T HAVE THE WIVES AND DIDN'T SEEK TO REQUIRE
THEIR ATTENDANCE AT A CONVENTION, WOULD THERE BE SOME DANGER THAT YOUR
MEETINGS AND CONVENTIONS WOULD KIND OF DEGENERATE INTO STAG AFFAIRS,
WHERE THE WHOLE PURPOSE OF THE MEETING WOULD BE LOST? 

"A.  I THINK THAT WOULD DEFINITELY BE A TENDENCY." 

I WOULD REVERSE THE JUDGMENTS BELOW AND LEAVE INSURANCE CONVENTIONS
IN THE SAME CATEGORY AS CONVENTIONS OF REVENUE AGENTS, LAWYERS,
DOCTORS, BUSINESS MEN, ACCOUNTANTS, NURSES, CLERGYMEN AND ALL OTHERS,
UNTIL AND UNLESS CONGRESS DECIDES OTHERWISE. 

FN1  THE TRAVEL TO AND FROM THE CONVENTION WAS IN A GROUP, SO
ARRANGED AS TO DEVELOP SOLIDARITY AMONG THE AGENTS, AND TO PROVIDE A
CONTINUING SEMINAR. 

FN2  "ONE OF THE CHIEF THINGS TO BE ACCOMPLISHED BY A CONVENTION IS
TO SECURE UNANIMOUS UNDERSTANDING OF THE PRINCIPLES UNDERLYING THE
COMPANY'S SALES OPERATIONS AND THE RULES WHICH EXPERIENCE HAS PROVED TO
BE ESSENTIAL IN CARRYING OUT THOSE PRINCIPLES.  THERE IS NO SALES
ORGANIZATION ANYWHERE WHICH HAS A COMPLETE AND UNANIMOUS GRASP OF THESE
MATTERS BUT A CONVENTION CAN DO MORE TO GIVE THE MEN THAT GRASP THAN
ANYTHING ELSE.  HOME OFFICES ARE CONSTANTLY UNDER THE NECESSITY OF
FORMULATING PRINCIPLES AND RULES, AND THEY ARE SIMILARLY IN A CONSTANT
STATE OF DISAPPOINTMENT BECAUSE THEY ARE NOT UNDERSTOOD.  THE
CONVENTION IS THE PLACE ABOVE ALL OTHERS WHERE THIS CAN BE
ACCOMPLISHED. 

     *         *    *         *         * 

"THE EXTENT TO WHICH THE HOME OFFICE ARRANGES FOR TRANSPORTATION
DEPENDS LARGELY UPON THE SITUATION OF THE CONVENTION CITY.  IF IT IS
CENTRALLY LOCATED WITH MANY LINES OF APPROACH, IT WOULD BE
IMPRACTICABLE TO ARRANGE FOR MANY MEN TO MEET ON THEIR WAY TO THE
CONVENTION.  BUT IF THE CONVENTION IS TO BE HELD IN AN ISOLATED SPOT,
OR ONE AT CONSIDERABLE DISTANCE FROM THE HOME OF THE MAJORITY OF THE
MEMBERS ATTENDING, THEN SPECIFIC PLANS MAY BE MADE FOR ASSEMBLING AT
SOME NEARER LOCATION AND PROCEEDING TOGETHER TO THE DESTINATION.  IF
THIS LATTER IS AT ALL FEASIBLE, IT IS DESIRABLE FOR SEVERAL REASONS. 
IT GIVES THE MEN A PECULIAR FEELING OF SATISFACTION TO TRAVEL ON A
'SPECIAL' TRAIN OR ON 'SPECIAL' CARS, IT ENCOURAGES A FRIENDLIER
FEELING THAN IS GENERALLY PRESENT AT CONVENTIONS AT WHICH THE MEN
ARRIVE AS STRANGERS, IT MAKES THE MEN MORE ANXIOUS TO GET DOWN TO THE
REAL WORK OF THE CONVENTION WHEN THEY ARRIVE AT THEIR DESTINATION, AND,
ABOVE ALL, IT HAS A DECIDED EDUCATIONAL VALUE IN ITS CONTACTS AND EVER
PRESENT BUSINESS DISCUSSIONS."  REPORT NO. 15, LIFE INSURANCE SALES
RESEARCH BUREAU, NOV. 1924, PP. 13, 17-18. 

FN3  FOR REASONS NOT GERMANE TO THE PROBLEMS OF THE FEDERAL INCOME
TAX, THE NEW YORK SUPERINTENDENT OF INSURANCE HAS RULED THAT THE
PAYMENT OF A WIFE'S EXPENSES IN ATTENDING AN INSURANCE CONVENTION IS
NOT PERMISSIBLE.  N.Y. INS. DEPT. RULINGS (1953), OCT. 6, 1953.  AND
SEE 27 MCKINNEY'S CON.  LAWS OF N.Y., SEC. 213, SUBDIVISIONS 7 AND 8,
REGULATING INSURANCE AGENTS' COMPETITIONS. 

FN4  SEE H.R. REP. NO. 1274, 80TH CONG., 2D SESS., PP. 1, 47. 

FN5  "TODAY AN EVER INCREASING NUMBER OF WIVES TAKE A REAL INTEREST
IN WHAT THEIR HUSBANDS DO, AND THIS INTEREST IS FREQUENTLY REFERRED TO
BY MEN AS BEING OF VERY GREAT VALUE TO THEM.  IN FACT, IT HAS BEEN SAID
THAT A WIFE CAN NOT USUALLY BE SO WHOLLY LACKING IN CONTACT WITH HER
HUSBAND'S WORK AS TO HAVE NO INFLUENCE AT ALL UPON IT. 

"IN MANY CASES, THIS INFLUENCE IS NEGATIVE RATHER THAN POSITIVE, AND
THIS IS PARTICULARLY TRUE IN THE CAREERS OF MANY LIFE INSURANCE AGENTS
BECAUSE THEIR WORK FREQUENTLY INVOLVES EVENING APPOINTMENTS - A
CONDITION USUALLY RESENTED BY A WIFE.  MANY A WIFE HAS THOROUGHLY
DISCOURAGED HER HUSBAND BECAUSE THE ONLY THING WHICH SHE EVER KNEW
ABOUT HIS WORK WAS THAT HE HAD TO GO OUT AT NIGHT OR THAT HE HAD FAILED
TO 'WRITE THAT TEN' WHICH WOULD GIVE HER A NEW DRESS.  SHE KNEW NOTHING
ABOUT THE BIGGER THINGS WHICH LIFE INSURANCE ACCOMPLISHES AND OF WHICH
HER HUSBAND WAS OR COULD BE A PART.   THE RECOGNITION OF THE VERY GREAT
DESIRABILITY OF 'SELLING' THE WIFE ON HER HUSBAND'S JOB HAS SPREAD
RAPIDLY IN RECENT YEARS, AND TODAY MANY HUSBANDS ARE HELPED OVER THE
ROUGH SPOTS OF THEIR CAREER BY THE ENTHUSIASM AND VISION OF THEIR
WIVES, MUCH OF WHICH CAN BE AROUSED OR INCREASED AT A CONVENTION." 
REPORT NO. 15, SUPRA NOTE 2, PP. 25-26. 
..END :










GRUMMAN V. UNITED STATES 370 U.S. 288 


NO. 436.  ARGUED APRIL 19, 1962 - DECIDED JUNE 18, 1962 - REPORTED
BELOW:  111 U.S. APP. D.C.  79, 294 F.2D 708. 


JUDGMENT REVERSED ON THE AUTHORITY OF RUSSELL V. UNITED STATES, 369
U.S. 749. 

GRUMMAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  RUSSELL V. UNITED STATES, 369 U.S. 749. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINIONS IN RUSSELL V. UNITED STATES, 369
U.S. 749, 779, 781. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :




KANSAS CITY SOUTHERN RAILWAY CO. V. REILY 370 U.S. 289 


NO. 918.  DECIDED JUNE 18, 1962 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  242 LA. 235, 135 SO. 2D
915. 


KANSAS CITY SOUTHERN RAILWAY CO. V. REILY, COLLECTOR OF REVENUE OF
LOUISIANA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION.  SEE NATIONAL LEATHER CO. V.
MASSACHUSETTS, 277 U.S. 413. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :











CEPERO V. PUERTO RICO 370 U.S. 289 


NO. 1336, MISC.  DECIDED JUNE 18, 1962. 


CEPERO V. PUERTO RICO ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :















VALENZUELA V. EYMAN 370 U.S. 290 


NO. 1144, MISC.  DECIDED JUNE 18, 1962 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


VALENZUELA V. EYMAN, WARDEN, ET AL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














PATSKAN V. BUCHKOE 370 U.S. 290 


NO. 1262, MISC.  DECIDED JUNE 18, 1962 - APPEAL DISMISSED - REPORTED
BELOW:  296 F.2D 724. 


PATSKAN V. BUCHKOE, WARDEN, ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














HALL V. HEARD 370 U.S. 291 


NO. 1269, MISC.  DECIDED JUNE 18, 1962 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


HALL V. HEARD, ACTING CORRECTIONS DIRECTOR. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














WILBUR V. UNITED STATES 370 U.S. 291 


NO. 1383, MISC.  DECIDED JUNE 18, 1962 - APPEAL DISMISSED. 


WILBUR V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :















MILUTIN V. BOUCHARD 370 U.S. 292 


NO. 782.  DECIDED JUNE 18, 1962 - REPORTED BELOW:  299 F.2D 50. 


CERTIORARI GRANTED; JUDGMENT OF THE COURT OF APPEALS VACATED; CASE
REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS. 

MILUTIN V. BOUCHARD, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT IS VACATED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW JERSEY WITH INSTRUCTIONS TO REMAND IT TO THE IMMIGRATION AND
NATURALIZATION SERVICE WITH DIRECTIONS TO REOPEN THE PROCEEDING AND TO
AFFORD PETITIONER AN OPPORTUNITY TO SEEK RELIEF UNDER SEC. 243(H) OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952 PURSUANT TO THE PROCEDURES
ESTABLISHED BY THE CURRENTLY APPLICABLE REGULATIONS AS SUGGESTED BY THE
SOLICITOR GENERAL. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :
























SEELIG V. UNITED STATES 370 U.S. 293 


NO. 841, MISC.  DECIDED JUNE 18, 1962. 


CERTIORARI GRANTED; JUDGMENT VACATED AND CASE REMANDED FOR
RECONSIDERATION IN THE LIGHT OF ELLIS V. UNITED STATES, 356 U.S. 674,
AND COPPEDGE V. UNITED STATES, 369 U.S. 438. 

SEELIG V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

IN ACCORDANCE WITH THE SUGGESTION OF THE SOLICITOR GENERAL AND UPON
CONSIDERATION OF THE ENTIRE RECORD, THE MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND THE PETITION FOR WRIT OF CERTIORARI ARE GRANTED. 
THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR RECONSIDERATION IN
THE LIGHT OF ELLIS V. UNITED STATES, 356 U.S. 674, AND COPPEDGE V.
UNITED STATES, 369 U.S. 438. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :





PORTER V. AETNA CASUALTY & SURETY CO. 370 U.S. 159 


NO. 604.  ARGUED APRIL 25, 1962 - DECIDED JUNE 11, 1962 - 111 U.S. APP.
D.C. 267, 296 F.2D 389, REVERSED. 


DISABILITY BENEFITS PAID BY THE UNITED STATES TO AN INCOMPETENT
VETERAN AND DEPOSITED BY HIS COMMITTEE OR GUARDIAN IN AN ACCOUNT IN A
FEDERAL SAVINGS AND LOAN ASSOCIATION ARE EXEMPTED FROM ATTACHMENT BY 38
U.S.C. SEC. 3101(A) WHEN THE DEPOSITS ARE READILY AVAILABLE AS NEEDED
FOR SUPPORT AND MAINTENANCE, ACTUALLY RETAIN THE QUALITIES OF MONEY AND
ARE NOT PERMANENT INVESTMENTS.  PP. 159-162. 

PORTER V. AETNA CASUALTY & SURETY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES THE QUESTION OF WHETHER BENEFITS PAID BY THE UNITED
STATES VETERANS' ADMINISTRATION RETAIN THEIR EXEMPT STATUS UNDER 38
U.S.C. SEC. 3101(A) (FN1) AFTER BEING DEPOSITED IN AN ACCOUNT IN A
FEDERAL SAVINGS AND LOAN ASSOCIATION.  PETITIONER, AN INCOMPETENT AIR
FORCE VETERAN, HAD SUFFERED A JUDGMENT AT THE HANDS OF RESPONDENT.  THE
LATTER IN AN EFFORT TO SATISFY ITS JUDGMENT ATTACHED A CHECKING ACCOUNT
AND TWO ACCOUNTS IN LOCAL FEDERAL SAVINGS AND LOAN ASSOCIATIONS, ALL OF
WHICH HAD BEEN ESTABLISHED BY PETITIONER'S COMMITTEE WITH FUNDS
RECEIVED FROM THE VETERANS' ADMINISTRATION AS DISABILITY COMPENSATION
DUE THE PETITIONER.  THE DISTRICT COURT, ON MOTION, HELD ALL THREE OF
THE ACCOUNTS EXEMPT UNDER THE STATUTE.  185 F. SUPP. 302.  RESPONDENT
APPEALED AS TO THE SAVINGS AND LOAN ASSOCIATION ACCOUNTS, AND THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA REVERSED IN A DIVIDED OPINION. 
111 U.S. APP.  D.C. 267, 296 F.2D 389.  CERTIORARI WAS GRANTED IN VIEW
OF THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE ACT. 
368 U.S. 937.  WE AGREE WITH THE DISTRICT COURT THAT THE FUNDS INVOLVED
HERE ARE EXEMPT UNDER THE STATUTE; THEREFORE WE REVERSE THE JUDGMENT
BELOW. 

SINCE 1873 IT HAS BEEN THE POLICY OF THE CONGRESS TO EXEMPT VETERANS'
BENEFITS FROM CREDITOR ACTIONS AS WELL AS FROM TAXATION.  (FN2)  IN
1933 IN TROTTER V. TENNESSEE, 290 U.S. 354, THE COURT HAD OCCASION TO
PASS UPON THE EXEMPTIVE PROVISION OF THE WORLD WAR VETERANS' ACT OF
1924, 43 STAT. 607, 613.  IT HELD THAT THE EXEMPTION SPENT ITS FORCE
WHEN THE BENEFIT FUNDS "LOST THE QUALITY OF MONEYS" AND WERE CONVERTED
INTO "PERMANENT INVESTMENTS."  THIS DISTINCTION WAS ADOPTED BY THE
CONGRESS WHEN THE ACT WAS AMENDED IN 1935, 49 STAT. 607, 609, TO
PROVIDE, INTER ALIA, THAT SUCH PAYMENTS SHALL BE EXEMPT "EITHER BEFORE
OR AFTER RECEIPT BY THE BENEFICIARY" BUT THAT THE EXEMPTION SHALL NOT
"EXTEND TO ANY PROPERTY PURCHASED IN PART OR WHOLLY OUT OF SUCH
PAYMENTS."  (FN3) THEREAFTER IN LAWRENCE V. SHAW, 300 U.S. 245 (1937),
THE COURT HELD THAT BANK CREDITS DERIVED FROM VETERANS' BENEFITS WERE
WITHIN THE EXEMPTION, THE TEST BEING WHETHER AS SO DEPOSITED THE
BENEFITS REMAINED SUBJECT TO DEMAND AND USE AS THE NEEDS OF THE VETERAN
FOR SUPPORT AND MAINTENANCE REQUIRED.   IT WAS NOTED THAT THE ALLOWANCE
OF INTEREST ON SUCH DEPOSITS WOULD NOT DESTROY THE EXEMPTION.  TWO
YEARS LATER THE COURT HELD THAT NEGOTIABLE NOTES AND UNITED STATES
BONDS PURCHASED WITH VETERANS' BENEFITS AND "HELD AS INVESTMENTS" HAD
NO FEDERAL STATUTORY IMMUNITY.  CARRIER V. BRYANT, 306 U.S. 545
(1939).  THE ACT WAS AGAIN AMENDED IN 1958, BUT NO SIGNIFICANT CHANGES
WERE MADE IN THE EXEMPTION PROVISION.  AS SO WRITTEN IT IS HERE AT
ISSUE. 

IT APPEARS THAT THE PRACTICES AND PROCEDURES VARY AS TO WITHDRAWAL OF
FUNDS FROM FEDERAL SAVINGS AND LOAN ASSOCIATIONS.  UNDER THE LAW THE
DEPOSITOR IS A SHAREHOLDER RATHER THAN A CREDITOR, AND HIS DEPOSITS ARE
SUBJECT TO WITHDRAWAL ONLY AFTER A 30-DAY DEMAND.  HOWEVER, THE
DISTRICT COURT FOUND THAT A WITHDRAWAL FROM THE ACCOUNTS HERE INVOLVED
COULD BE MADE "AS QUICKLY AS A WITHDRAWAL FROM A CHECKING ACCOUNT  ...
."  IN ADDITION, THE INTEGRITY OF THE DEPOSITS WAS ASSURED BY FEDERAL
SUPERVISION OF THE ASSOCIATIONS PLUS FEDERAL INSURANCE OF THE
ACCOUNTS.  UNDER SUCH CONDITIONS THE FUNDS WERE SUBJECT TO IMMEDIATE
AND CERTAIN ACCESS AND THUS PLAINLY HAD "THE QUALITY OF MONEYS."  AS TO
WHETHER THE DEPOSITS WERE "PERMANENT INVESTMENTS," WE NOTE THEY WERE
NOT OF A SPECULATIVE CHARACTER NOR WERE THEY TIME DEPOSITS AT
INTEREST.  MOREOVER, IT AFFIRMATIVELY APPEARS THAT AT TIMES PETITIONER
DREW MONEYS FROM THE SAVINGS AND LOAN FUND FOR HIS SUPPORT AND
MAINTENANCE REQUIREMENTS AND THAT NO OTHER FUNDS WHATEVER ARE NOW
AVAILABLE TO HIM, HIS DISABILITY PAYMENTS HAVING BEEN CUT OFF.  IT
THEREFORE APPEARS CLEAR TO US THAT THE SAVINGS AND LOAN DEPOSITS HERE,
RATHER THAN BEING INVESTMENTS, ARE THE ONLY FUNDS PRESENTLY AVAILABLE
TO MEET PETITIONER'S NEEDS. 

SINCE LEGISLATION OF THIS TYPE SHOULD BE LIBERALLY CONSTRUED, SEE
TROTTER V. TENNESSEE, SUPRA, AT 356, TO PROTECT FUNDS GRANTED BY THE
CONGRESS FOR THE MAINTENANCE AND SUPPORT OF THE BENEFICIARIES THEREOF,
LAWRENCE V. SHAW, SUPRA, AT 250, WE FEEL THAT DEPOSITS SUCH AS ARE
INVOLVED HERE SHOULD REMAIN INVIOLATE.  THE CONGRESS, WE BELIEVE,
INTENDED THAT VETERANS IN THE SAFEKEEPING OF THEIR BENEFITS SHOULD BE
ABLE TO UTILIZE THOSE NORMAL MODES ADOPTED BY THE COMMUNITY FOR THAT
PURPOSE - PROVIDED THE BENEFIT FUNDS, REGARDLESS OF THE TECHNICALITIES
OF TITLE AND OTHER FORMALITIES, ARE READILY AVAILABLE AS NEEDED FOR
SUPPORT AND MAINTENANCE, ACTUALLY RETAIN THE QUALITIES OF MONEYS, AND
HAVE NOT BEEN CONVERTED INTO PERMANENT INVESTMENTS.  REVERSED. 

FN1  "(A)  PAYMENTS OF BENEFITS DUE OR TO BECOME DUE UNDER ANY LAW
ADMINISTERED BY THE VETERANS' ADMINISTRATION SHALL NOT BE ASSIGNABLE
EXCEPT TO THE EXTENT SPECIFICALLY AUTHORIZED BY LAW, AND SUCH PAYMENTS
MADE TO, OR ON ACCOUNT OF, A BENEFICIARY SHALL BE EXEMPT FROM TAXATION,
SHALL BE EXEMPT FROM THE CLAIM OF CREDITORS, AND SHALL NOT BE LIABLE TO
ATTACHMENT, LEVY, OR SEIZURE BY OR UNDER ANY LEGAL OR EQUITABLE PROCESS
WHATEVER, EITHER BEFORE OR AFTER RECEIPT BY THE BENEFICIARY.  THE
PRECEDING SENTENCE SHALL NOT APPLY TO CLAIMS OF THE UNITED STATES
ARISING UNDER SUCH LAWS NOR SHALL THE EXEMPTION THEREIN CONTAINED AS TO
TAXATION EXTEND TO ANY PROPERTY PURCHASED IN PART OR WHOLLY OUT OF SUCH
PAYMENTS.  THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO
PROHIBIT THE ASSIGNMENT OF INSURANCE OTHERWISE AUTHORIZED UNDER CHAPTER
19 OF THIS TITLE, OR OF SERVICEMEN'S INDEMNITY." 

FN2  ACT OF MAR. 3, 1873, R.S. SEC. 4747 (1878); WORLD WAR VETERANS'
ACT OF 1924, C. 320, SEC. 22, 43 STAT. 607, 613; ACT OF AUG. 12, 1935,
C. 510, SEC. 3, 49 STAT. 607, 609. 

FN3  THE STATUTORY LANGUAGE READS ONLY THAT THE EXEMPTION "AS TO
TAXATION" SHALL NOT EXTEND TO PROPERTY PURCHASED WITH BENEFITS. 
HOWEVER, IN CARRIER V. BRYANT, 306 U.S. 545 (1939), THE COURT HELD THAT
BENEFITS INVESTED IN PROPERTY WERE ALSO NONEXEMPT FROM CREDITOR
ACTIONS, SINCE THEY WERE NOT "PAYMENTS OF BENEFITS DUE OR TO BECOME
DUE" AND THUS DID NOT FALL WITHIN THE INITIAL IMMUNIZING LANGUAGE. 

THE CHIEF JUSTICE AND MR. JUSTICE FRANKFURTER TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS. 

HERETOFORE THE TEST OF EXEMPTION UNDER THIS ACT HAS BEEN WHETHER THE
FUNDS HAD TAKEN THE FORM OF "PERMANENT INVESTMENTS," ON THE ONE HAND
(TROTTER V. TENNESSEE, 290 U.S. 354, 357), OR ON THE OTHER WERE
"SUBJECT TO DRAFT UPON DEMAND," AS IN THE CASE OF CHECKING ACCOUNTS. 
LAWRENCE V. SHAW, 300 U.S. 245, 250.  NEGOTIABLE NOTES AND UNITED
STATES BONDS WERE HELD TO BE NONEXEMPT IN CARRIER V. BRYANT, 306 U.S.
545.  YET SO FAR AS WE KNOW, THOSE NOTES AND BONDS MAY HAVE HAD THE
SAME OR A COMPARABLE DEGREE OF LIQUIDITY AS THE PRESENT SHARE ACCOUNT
IN THE FEDERAL SAVINGS AND LOAN ASSOCIATION ENJOYS.  TODAY, HOWEVER, WE
HOLD THESE ACCOUNTS EXEMPT.  STOCKS AND BONDS CANNOT, OF COURSE, BE
FRACTIONALIZED AND CONVERTED INTO CASH IN SMALL AMOUNTS, SUCH AS MAY BE
DONE WITH SAVINGS ACCOUNTS AND CHECKING ACCOUNTS.  BUT STOCKS AND BONDS
MAY BE SO LIQUID AS TO BE TANTAMOUNT TO CASH IN HAND AND THEREFORE
SERVE, AS WELL AS ANY BANK DEPOSIT, THE NEEDS OF THE VETERAN. 

BY THE STANDARDS ANNOUNCED IN THE EARLIER DECISIONS SHARE ACCOUNTS IN
FEDERAL SAVINGS AND LOAN ASSOCIATIONS ARE "INVESTMENTS."  SEE WISCONSIN
BANKERS ASSN. V. ROBERTSON, 111 U.S. APP. D.C. 85, 294 F.2D 714.  THEY
CAN BE WITHDRAWN ONLY AFTER 30 DAYS' NOTICE.  THE OWNER OF A SHARE
ACCOUNT IS A VOTING MEMBER OF THE ASSOCIATION WHICH, AS THE COURT OF
APPEALS NOTED, MAKES HIM "MORE NEARLY COMPARABLE TO A STOCKHOLDER OF A
BANK THAN ONE OF ITS DEPOSITORS."  111 U.S. APP. D.C. 267, 270, 296
F.2D 389, 392.  MOREOVER, THE HOME OWNERS' LOAN ACT, UNDER WHICH THIS
FEDERAL ASSOCIATION WAS CREATED, MAKES CLEAR THAT ITS PURPOSE IS "TO
PROVIDE LOCAL MUTUAL THRIFT INSTITUTIONS IN WHICH PEOPLE MAY INVEST
THEIR FUNDS."  12 U.S.C. SEC.  1464(A).  ITS CAPITAL (FN1) IS IN
"SHARES" (12 U.S.C. SEC. 1464(B)) SUCH AS ARE INVOLVED HERE.  THE
HOLDERS OF SAVINGS ACCOUNTS WHO APPLY FOR A WITHDRAWAL OF FUNDS DO NOT
THEREBY BECOME "CREDITORS."  (FN2) 

IN SOME STATES THESE SHARE ACCOUNTS MAY NOT BE AS LIQUID AS CHECKING
ACCOUNTS OR EVEN AS LIQUID AS STOCKS AND BONDS LISTED ON AN EXCHANGE OR
ACTIVELY TRADED OVER-THE-COUNTER.  THE TRUE TEST SEEMS TO ME TO BE
LIQUIDITY - THAT IS TO SAY, WHETHER OR NOT THE MONEYS ARE KEPT IN A
FORM IN WHICH THEY ARE USABLE, IF NEED BE, "FOR THE MAINTENANCE AND
SUPPORT OF THE VETERAN," AS CHIEF JUSTICE HUGHES SAID IN LAWRENCE V.
SHAW, SUPRA, AT 250. 

FN1  "CAPITAL" MEANS "THE AGGREGATE OF THE PAYMENTS ON SAVINGS
ACCOUNTS," PLUS EARNINGS, LESS DEDUCTIONS.  SEE 12 CFR SEC. 541.3. 
"SAVINGS ACCOUNT," SUCH AS WE HAVE HERE, IS "THE MONETARY INTEREST OF
THE HOLDER" IN THE "CAPITAL" OF THE ASSOCIATION.  ID., SEC. 541.4.  THE
ACCOUNT BOOK EVIDENCES "THE OWNERSHIP OF THE ACCOUNT AND THE INTEREST
OF THE HOLDER THEREOF IN THE CAPITAL" OF THE ASSOCIATION.  12 CFR SEC.
545.2(B). 

FN2  "HOLDERS OF SAVINGS ACCOUNTS FOR WHICH APPLICATION FOR
WITHDRAWAL HAS BEEN MADE SHALL REMAIN HOLDERS OF SAVINGS ACCOUNTS UNTIL
PAID AND SHALL NOT BECOME CREDITORS."  12 CFR SEC. 544.1(A) PAR. 6. 
..END :










MORALES V. CITY OF GALVESTON 370 U.S. 165 


NO. 480.  ARGUED APRIL 23-24, 1962 - DECIDED JUNE 11, 1962 - 291 F.2D
97, AFFIRMED. 


PETITIONERS WERE LONGSHOREMEN ENGAGED IN "TRIMMING" WHEAT AS IT WAS
BEING LOADED BY MEANS OF A SPOUT DIRECTLY FROM A PIERSIDE GRAIN
ELEVATOR OWNED AND OPERATED BY THE CITY OF GALVESTON, TEXAS, INTO THE
HOLD OF A SHIP BERTHED AT THE PIER.  A LAST "SHOT" OF GRAIN CALLED FOR
AND RELEASED INTO THE BIN HAD BEEN TREATED WITH A CHEMICAL INSECTICIDE,
AND PETITIONERS WERE INJURED BY FUMES FROM THE CHEMICAL MADE NOXIOUS BY
CONCENTRATION IN THE CLOSELY CONFINED AREA WHERE THEY WERE WORKING. 
THEY SUED THE CITY AND THE SHIPOWNER TO RECOVER FOR THEIR INJURIES,
CLAIMING THAT THE CITY AND THE SHIPOWNER HAD BEEN NEGLIGENT AND THAT
THE SHIP WAS UNSEAWORTHY.  HELD:  A JUDGMENT FOR THE DEFENDANTS IS
AFFIRMED.  PP. 166-171. 

(A)  ON THE ISSUE OF NEGLIGENCE, A FINDING BY THE DISTRICT COURT,
AFFIRMED BY THE COURT OF APPEALS, THAT THE CITY HAD NOT ITSELF APPLIED
THE FUMIGANT TO THE GRAIN AND THAT NEITHER OF THE DEFENDANTS KNEW, OR
IN THE EXERCISE OF REASONABLE CARE SHOULD HAVE KNOWN, THAT THE GRAIN
HAD BEEN IMPROPERLY FUMIGATED BY SOMEONE ELSE AT AN INLAND POINT, WAS
BASED UPON SUBSTANTIAL EVIDENCE, AND THIS COURT CANNOT SAY THAT IT WAS
CLEARLY ERRONEOUS.  PP. 167-168. 

(B)  THE DISTRICT COURT FOUND, UPON SUBSTANTIAL EVIDENCE AND UNDER
PROPER CRITERIA, THAT THE ABSENCE OF A FORCED VENTILATION SYSTEM IN THE
HOLD DID NOT MAKE THE SHIP UNSEAWORTHY AND THAT THE SHIP WAS NOT IN ANY
MANNER UNFIT FOR THE SERVICE TO WHICH SHE WAS TO BE PUT; THAT FINDING
WAS AFFIRMED BY THE COURT OF APPEALS; AND THIS COURT CANNOT SAY THAT IT
WAS WRONG.  MITCHELL V. TRAWLER RACER, INC., 362 U.S. 539,
DISTINGUISHED.  PP. 168-171. 

MORALES ET AL. V. CITY OF GALVESTON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON THE AFTERNOON OF MARCH 14, 1957, THE S.S. GRELMARION WAS BERTHED
AT GALVESTON, TEXAS, TAKING ON A CARGO OF WHEAT FROM A PIERSIDE GRAIN
ELEVATOR OWNED AND OPERATED BY THE CITY.  THE WHEAT WAS BEING LOADED
DIRECTLY FROM THE ELEVATOR INTO THE SHIP BY MEANS OF A SPOUT.  THE
PETITIONERS WERE LONGSHOREMEN ENGAGED IN "TRIMMING" THE WHEAT AS IT WAS
RECEIVED IN THE OFFSHORE BIN OF THE VESSEL'S NO. 2 HOLD, WHICH WAS THEN
ABOUT THREE-QUARTERS FULL.  A LAST "SHOT" OF GRAIN WAS CALLED FOR AND
WAS RELEASED INTO THE BIN.  THE GRAIN IN THIS LAST SHOT HAD BEEN
TREATED WITH A CHEMICAL INSECTICIDE, AND THE PETITIONERS WERE INJURED
BY FUMES FROM THE CHEMICAL, MADE NOXIOUS BY CONCENTRATION IN THE
CLOSELY CONFINED AREA WHERE THEY WERE WORKING. 

THE PETITIONERS BROUGHT THE PRESENT SUIT AGAINST THE CITY OF
GALVESTON AND THE OWNER OF THE VESSEL TO RECOVER FOR THEIR INJURIES. 
(FN1)  THEIR CLAIM WAS PREDICATED UPON THE NEGLIGENCE OF THE CITY AND
THE SHIPOWNER, AND UPON THE UNSEAWORTHINESS OF THE SHIP.  AFTER AN
EXTENDED TRIAL, THE DISTRICT COURT ENTERED JUDGMENT FOR THE
RESPONDENTS, BASED UPON DETAILED FINDINGS OF FACT, 181 F. SUPP. 202,
AND THE COURT OF APPEALS AFFIRMED, 275 F.2D 191.  ON CERTIORARI (364
U.S. 295) WE VACATED THE JUDGMENT AND REMANDED THE CASE TO THE COURT OF
APPEALS FOR CONSIDERATION IN THE LIGHT OF MITCHELL V. TRAWLER RACER,
INC., 362 U.S. 539, WHICH HAD BEEN DECIDED IN THE INTERIM.  THAT COURT,
ONE JUDGE DISSENTING, WAS OF THE VIEW THAT MITCHELL WAS INAPPLICABLE TO
THE FACTS OF THE PRESENT CASE, AND AGAIN AFFIRMED THE DISTRICT COURT'S
JUDGMENT, 291 F.2D 97.  WE GRANTED CERTIORARI TO CONSIDER A SEEMINGLY
SIGNIFICANT QUESTION OF ADMIRALTY LAW.  368 U.S. 816. 

THE FACTUAL ISSUES BEARING UPON THE ALLEGED NEGLIGENCE OF THE CITY
AND SHIPOWNER WERE DETERMINED IN THEIR FAVOR BY THE DISTRICT COURT. 
SPECIFICALLY, THE COURT FOUND THAT THE CITY HAD NOT ITSELF APPLIED THE
FUMIGANT TO THE GRAIN IN QUESTION, AND THAT NEITHER OF THE RESPONDENTS
KNEW, OR IN THE EXERCISE OF REASONABLE CARE SHOULD HAVE KNOWN, THAT THE
GRAIN HAD BEEN IMPROPERLY FUMIGATED AT AN INLAND POINT BY SOMEONE
ELSE.  (FN2)  EVEN A CURSORY EXAMINATION OF THE LENGTHY RECORD SHOWS
THAT THESE FINDINGS WERE BASED UPON SUBSTANTIAL EVIDENCE.  THEY WERE RE
EXAMINED AND AFFIRMED ON APPEAL.  (FN3)  WE CANNOT SAY THAT THEY WERE
CLEARLY ERRONEOUS.  MCALLISTER V. UNITED STATES, 348 U.S. 19, 20-21. 

OF GREATER SIGNIFICANCE IN THIS LITIGATION IS THE ISSUE WHICH
PROMPTED OUR REMAND TO THE COURT OF APPEALS FOR RECONSIDERATION. 
BRIEFLY STATED, THE QUESTION IS WHETHER, UPON THE FACTS AS FOUND BY THE
DISTRICT COURT, IT WAS ERROR TO HOLD THAT THE GRELMARION WAS SEAWORTHY
AT THE TIME THE PETITIONERS WERE INJURED.  (FN4) 

IN THE MITCHELL CASE, SUPRA, WE REVERSED A JUDGMENT FOR THE
DEFENDANT, BECAUSE THE DISTRICT COURT AND THE COURT OF APPEALS HAD
MISTAKENLY IMPORTED CONCEPTS OF COMMON-LAW NEGLIGENCE INTO AN ACTION
FOR UNSEAWORTHINESS.  THERE THE JURY HAD ERRONEOUSLY BEEN INSTRUCTED
THAT LIABILITY FOR UNSEAWORTHINESS COULD ATTACH ONLY IF THE ALLEGED
UNSEAWORTHY CONDITION WAS "THERE FOR A REASONABLY LONG PERIOD OF TIME
SO THAT A SHIPOWNER OUGHT TO HAVE SEEN THAT IT WAS REMOVED."  (FN5)
THE COURT OF APPEALS HAD AFFIRMED ON THE THEORY THAT, AT LEAST AS TO AN
UNSEAWORTHY CONDITION THAT ARISES DURING THE PROGRESS OF THE VOYAGE,
THE SHIPOWNER'S OBLIGATION "IS MERELY TO SEE THAT REASONABLE CARE IS
USED UNDER THE CIRCUMSTANCES  ...  INCIDENT TO THE CORRECTION OF THE
NEWLY ARISEN DEFECT."  (FN6)  IT WAS ALLEGED IN THAT CASE THAT A SHIP'S
RAIL WHICH WAS HABITUALLY USED AS A MEANS OF EGRESS TO THE DOCK WAS
RENDERED UNSEAWORTHY BY THE PRESENCE OF SLIME AND GURRY.  WE DID NOT
DECIDE THE ISSUE, BUT REVERSED FOR A NEW TRIAL UNDER PROPER CRITERIA,
HOLDING THAT THE SHIPOWNER'S ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE
UNSEAWORTHY CONDITION IS NOT ESSENTIAL TO HIS LIABILITY, AND THAT HE
HAS AN ABSOLUTE DUTY "TO FURNISH A VESSEL AND APPURTENANCES REASONABLY
FIT FOR THEIR INTENDED USE."  362 U.S., AT 550. 

IN THE PRESENT CASE THE COURT OF APPEALS WAS OF THE VIEW THAT THE
TRIAL JUDGE'S DETERMINATION OF THE GRELMARION'S SEAWORTHINESS AT THE
TIME THE PETITIONERS WERE INJURED WAS IN NO WAY INCONSISTENT WITH OUR
DECISION IN THE MITCHELL CASE.  WE AGREE.  THE DISTRICT JUDGE DID NOT,
AS IN MITCHELL, HOLD THAT UNSEAWORTHINESS LIABILITY DEPENDS UPON THE
SHIPOWNER'S ACTUAL OR CONSTRUCTIVE KNOWLEDGE.  HE DID NOT, AS IN
MITCHELL, INDICATE THAT LIABILITY MAY BE EXCUSED IF AN UNSEAWORTHY
CONDITION IS MERELY TEMPORARY.  RATHER, AS THE COURT OF APPEALS POINTED
OUT, THE TRIER OF THE FACTS FOUND, UPON SUBSTANTIAL EVIDENCE, THAT "THE
CAUSE OF THE INJURY WAS NOT ANY DEFECT IN THE SHIP BUT THE FACT THAT
THE LAST SHOT OF GRAIN WHICH WAS BEING LOADED WAS CONTAMINATED  ...
."  291 F.2D, AT 98. 

THE TRIAL COURT FOUND, UPON SUBSTANTIAL EVIDENCE, THAT WHAT HAPPENED
WAS AN UNEXPECTED, ISOLATED OCCURRENCE.  SEVERAL YEARS BEFORE THERE HAD
BEEN THREE, OR PERHAPS FOUR, INCIDENTS INVOLVING INJURY TO LONGSHOREMEN
FROM GRAIN WHICH HAD BEEN FUMIGATED BY THE CITY ITSELF.  BUT AT THE
TIME THE PRESENT CASE AROSE THE CITY HAD ADOPTED A SERIES OF SAFETY AND
INSPECTION MEASURES WHICH MADE COMPLETELY INNOCUOUS THE GRAIN WHICH IT
FUMIGATED, AND "VAST QUANTITIES OF WHEAT AND OTHER GRAINS HAD BEEN
LOADED THROUGH THE ELEVATOR, SOME EIGHT TO TEN PERCENT OF WHICH HAD
BEEN FUMIGATED BY THE CITY, WITHOUT SIMILAR INCIDENT IN RECENT YEARS." 
(FN7)  THE COURT FOUND THAT THE FUMES IN THE PRESENT CASE CAME FROM
"CHLOROPICRIN, AN INSECTICIDE WHICH HAD NEVER BEEN USED BY THE
RESPONDENT CITY."  (FN8)  THE PETITIONERS QUESTION NONE OF THESE
FINDINGS HERE.  UNDER THESE CIRCUMSTANCES WE CANNOT SAY THAT IT WAS
ERROR FOR THE COURT TO RULE THAT THE ABSENCE OF A FORCED VENTILATION
SYSTEM IN THE HOLD DID NOT CONSTITUTE UNSEAWORTHINESS.  (FN9) 

A VESSEL'S UNSEAWORTHINESS MIGHT ARISE FROM ANY NUMBER OF
INDIVIDUALIZED CIRCUMSTANCES.  HER GEAR MIGHT BE DEFECTIVE, HER
APPURTENANCES IN DISREPAIR, HER CREW UNFIT.  THE METHOD OF LOADING HER
CARGO, OR THE MANNER OF ITS STOWAGE, MIGHT BE IMPROPER.  MAHNICH V.
SOUTHERN S.S.  CO., 321 U.S. 96; SEAS SHIPPING CO. V. SIERACKI, 328
U.S. 85; POPE & TALBOT, INC., V. HAWN, 346 U.S. 406; ALASKA STEAMSHIP
CO. V. PETTERSON, 347 U.S. 396; ROGERS V. UNITED STATES LINES, 347 U.S.
984; BOUDOIN V. LYKES BROS. S.S. CO., 348 U.S. 336; CRUMADY V. THE J.H.
FISSER, 358 U.S. 423; ATLANTIC & GULF STEVEDORES, INC., V. ELLERMAN
LINES, LTD., 369 U.S. 355.  FOR ANY OR ALL OF THESE REASONS, OR OTHERS,
A VESSEL MIGHT NOT BE REASONABLY FIT FOR HER INTENDED SERVICE.  WHAT
CAUSED INJURY IN THE PRESENT CASE, HOWEVER, WAS NOT THE SHIP, ITS
APPURTENANCES, OR ITS CREW, BUT THE ISOLATED AND COMPLETELY
UNFORESEEABLE INTRODUCTION OF A NOXIOUS AGENT FROM WITHOUT.  THE TRIER
OF THE FACTS RULED, UNDER PROPER CRITERIA, THAT THE GRELMARION WAS NOT
IN ANY MANNER UNFIT FOR THE SERVICE TO WHICH SHE WAS TO BE PUT, AND WE
CANNOT SAY THAT HIS DETERMINATION WAS WRONG.  AFFIRMED. 

FN1  PETITIONERS OF COURSE RECEIVED COMPENSATION AND MEDICAL
TREATMENT UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT, 33 U.S.C. SEC. 901 ET SEQ. 181 F. SUPP., AT 207. 

FN2  "14.  I FIND THAT NEITHER OF THE RESPONDENTS KNEW, OR IN THE
EXERCISE OF REASONABLE CARE SHOULD HAVE KNOWN, THAT THIS QUANTITY OF
GRAIN, WHICH HAD BEEN IMPROPERLY TREATED WITH AN EXCESSIVE AMOUNT OF
FUMIGANT, WAS IN THE ELEVATOR OR LOADED ABOARD THE GRELMARION; AND THAT
(FOR ALL THE EVIDENCE SHOWS HERE) THE RESPONDENT CITY, IN THE OPERATION
OF ITS ELEVATOR, HAD NEVER RECEIVED KNOWLEDGE OF A PRIOR INSTANCE WHERE
CHLOROPICRIN OR OTHER FUMIGANTS APPLIED AT INLAND ELEVATORS HAD ADHERED
TO THE GRAIN SUFFICIENTLY LONG AS TO PRESENT DANGER AFTER RECEIPT BY
THE ELEVATOR. 

"15.  I FIND THAT THE RESPONDENT CITY WAS NOT NEGLIGENT IN FAILING TO
KNOW OR LEARN OF THE PRESENCE OF THIS QUANTITY OF GRAIN WITHIN ITS
ELEVATOR, IN FAILING TO MAKE SOME ADDITIONAL INSPECTION THEREFOR, OR IN
ANY OTHER PARTICULAR.  THE RECORD SHOWS WITHOUT DISPUTE THAT CAREFUL
AND PAINSTAKING INSPECTIONS AND EXAMINATIONS WERE MADE UNDER
GOVERNMENTAL AUTHORITY WHEN THE GRAIN WAS RECEIVED, AND AGAIN AS IT WAS
DISBURSED BY THE ELEVATOR, WHICH IN THE PRESENT INSTANCE FAILED TO
DETECT THE PRESENCE OF THE REMAINING TRACES OF FUMIGANT IN THIS
QUANTITY OF GRAIN.  I FIND THAT HAD ADDITIONAL INSPECTIONS BEEN MADE BY
THE RESPONDENT CITY, THERE IS NO REASON TO BELIEVE THAT SUCH
INSPECTIONS WOULD HAVE BEEN MORE SUCCESSFUL. 

     *         *         *         *         * 

"17.  I FIND THAT THE GRELMARION'S CARGO SPACES WERE OF CUSTOMARY
DESIGN AND CONSTRUCTION; THAT THEY WERE CLEAN, AND IN ALL RESPECTS
READY TO RECEIVE THE WHEAT; AND HAD BEEN SURVEYED AND APPROVED PRIOR TO
LOADING.  NO FUMIGATION FOR WEEVILS WAS MADE ABOARD THE VESSEL, AND
NONE WAS NECESSARY  ...  .  I FIND  ... THAT HER CAPTAIN, CREW, AGENT,
OR OTHER REPRESENTATIVES WERE NOT NEGLIGENT IN ANY PARTICULAR."  181 F.
SUPP. 202, AT 205-207. 

FN3  "CAREFUL CONSIDERATION OF, AND REFLECTION ON, THE CLAIMS AND
ARGUMENTS OF THE OPPOSING PARTIES, IN THE LIGHT OF THE RECORD AND THE
CONTROLLING AUTHORITIES, LEAVES US IN NO DOUBT THAT, AS TO THE CHARGES
OF NEGLIGENCE, THERE IS NO BASIS WHATEVER FOR THE ATTACK HERE UPON THE
FINDINGS AS CLEARLY ERRONEOUS.  INDEED, WE ARE CONVINCED THAT, UNDER AN
IMPARTIAL AND DISINTERESTED VIEW OF THE EVIDENCE AS A WHOLE, THE
FINDINGS ARE WELL SUPPORTED AND WHOLLY REASONABLE."  275 F.2D, AT 193. 

FN4  THE DISTRICT COURT AND THE COURT OF APPEALS, WITHOUT DISCUSSION,
PROCEEDED UPON THE ASSUMPTION THAT THE PETITIONERS BELONGED TO THE
CLASS TO WHOM THE RESPONDENT SHIPOWNER OWED THE DUTY OF PROVIDING A
SEAWORTHY VESSEL.  THIS WAS CORRECT.  SEAS SHIPPING CO. V. SIERACKI,
328 U.S. 85; POPE & TALBOT, INC., V. HAWN, 346 U.S. 406. 

FN5  362 U.S., AT 540-541, N. 2. 

FN6  265 F.2D 426, 432. 

FN7  181 F. SUPP., AT 205. 

FN8  IBID. 

FN9 "  ...  WHILE THE GRELMARION'S CARGO SPACES WERE NOT EQUIPPED
WITH FORCED VENTILATION SYSTEMS, I FIND THAT ONLY VERY RARELY IS THIS
THE CASE ON GRAIN VESSELS, AND THAT IT IS NOT NECESSARY OR CUSTOMARY
...  ." 

"THE FINDING HERETOFORE HAS BEEN MADE THAT THE NOXIOUS GASES AND
FUMES WERE INTRODUCED INTO THE BIN WITH THE LAST 'SHOT' OF GRAIN, AND
RESULTED FROM A FUMIGANT THAT HAD BEEN IMPROPERLY APPLIED, AND THAT HAD
ADHERED TO THE GRAIN AN UNUSUALLY LONG PERIOD OF TIME.  UNDER THESE
CIRCUMSTANCES, I FIND THAT THE ADMISSION THEREOF INTO THE BIN OF THE
VESSEL DID NOT CAUSE THE GRELMARION TO BECOME UNSEAWORTHY, THE VESSEL
AND ALL ITS APPURTENANCES BEING ENTIRELY ADEQUATE AND SUITABLE IN EVERY
RESPECT."  181 F. SUPP., AT 206-207. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THE DISTRICT COURT FOUND THAT THE LIBELLANTS WERE INJURED IN 1957 AS
A RESULT OF A RELEASE INTO THE HOLD OF A "SHOT" OF GRAIN THAT
COMPLETELY CLOSED THE HATCH OPENING, WHICH WAS THE ONLY SOURCE OF
VENTILATION FOR THE HOLD IN WHICH THEY WERE WORKING.  THIS GRAIN HAD
BEEN TREATED BY CHEMICALS FOR WEEVIL INFESTATION; AND THE NOXIOUS FUMES
FROM THOSE CHEMICALS INJURED LIBELLANTS. 

THE VESSEL'S CARGO SPACES WERE NOT EQUIPPED WITH A FORCED VENTILATION
SYSTEM.  GRAIN VESSELS, THE DISTRICT COURT FOUND, RARELY ARE SO
EQUIPPED - AND IT CONCLUDED THAT FORCED VENTILATION IS "NOT NECESSARY
OR CUSTOMARY."  IF THIS WERE AN ISOLATED INSTANCE OF FUMIGATED GRAIN
RELEASING NOXIOUS GASES, NO CLAIM OF UNSEAWORTHINESS COULD BE
MAINTAINED.  BUT THIS WAS NOT AN ISOLATED INSTANCE.  OF THE WHEAT
LOADED THROUGH THIS ELEVATOR, SOME 8 TO 10% WAS FUMIGATED BY THE CITY. 
WHEAT IS COMMONLY FUMIGATED EITHER IN THE ELEVATORS OR IN RAILROAD
CARS.  WHEN THE FUMIGANT IS PROPERLY APPLIED, THE GASES AND FUMES ARE
DISSIPATED SO AS NOT TO BE DANGEROUS OR HARMFUL AFTER 24 TO 48 HOURS. 
THE DISTRICT COURT FOUND, HOWEVER, THAT TO THE KNOWLEDGE OF THE OWNERS
OF THE VESSEL SEVERAL RECENT INCIDENTS LIKE THAT IN THE PRESENT CASE
HAD OCCURRED IN GALVESTON, CAUSING INJURY TO LONGSHOREMEN - ONE IN
1949, ONE IN 1950, TWO IN 1953. 

A VESSEL WITHOUT A FORCED VENTILATION SYSTEM WOULD BE SEAWORTHY IF
THIS INJURY WERE AN UNEXPECTED, ISOLATED OCCURRENCE.  BUT I AGREE WITH
JUDGE RIVES OF THE COURT OF APPEALS THAT THE VESSEL AND HER
APPURTENANCES WERE NOT "REASONABLY FIT FOR THEIR INTENDED USE" (291
F.2D 97, 99), WHERE UP TO 10% OF THE GRAIN LOADED FROM THIS ELEVATOR
WAS FUMIGATED AND WHERE THE OWNERS HAD KNOWLEDGE OF LIKE ACCIDENTS. 
ONE "INTENDED SERVICE" OF THIS VESSEL WAS, THEREFORE, THE LOADING OF
FUMIGATED GRAIN WHICH IN THE PAST HAD GIVEN OFF NOXIOUS FUMES. 
UNSEAWORTHINESS BY REASON OF THE ABSENCE OF A FORCED VENTILATION SYSTEM
IS CLEARER HERE THAN IT WAS IN MITCHELL V. TRAWLER RACER, INC., 362
U.S. 539, WHERE TEMPORARY SLIME AND GURRY ON THE SHIP'S RAIL RENDERED
IT UNSEAWORTHY.  THE UNSEAWORTHY CONDITION IN THE PRESENT CASE HAD NO
SUCH TEMPORARY SPAN.  WHAT HAPPENED HERE SHOWS THAT THE VESSEL WAS
UNSEAWORTHY WHENEVER FUMIGATED GRAIN WAS BEING LOADED. 
..END :






MARINE ENGINEERS BENEFICIAL ASSOCIATION V. INTERLAKE STEAMSHIP CO. 370
U.S. 173 


NO. 166.  ARGUED APRIL 16, 1962 - DECIDED JUNE 11, 1962 - 260 MINN. 1,
108 N.W.2D 627, REVERSED. 


THE TWO PETITIONER LABOR UNIONS REPRESENTED MARINE ENGINEERS EMPLOYED
ON THE GREAT LAKES AND ELSEWHERE.  RESPONDENTS OWNED AND OPERATED A
FLEET OF BULK CARGO VESSELS ON THE GREAT LAKES, AND THE MARINE
ENGINEERS EMPLOYED BY THEM WERE NOT REPRESENTED BY ANY UNION.  IN A
SUIT BROUGHT BY RESPONDENTS, A STATE COURT ENJOINED PEACEFUL PICKETING
AND OTHER ACTIVITIES BY THE PETITIONER UNIONS OF A KIND ARGUABLY
PROHIBITED BY SEC. 8(B) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, IF THE PETITIONER UNIONS WERE "LABOR ORGANIZATIONS" WITHIN THE
CONTEMPLATION OF SEC. 8(B).  ALTHOUGH IT WAS SHOWN FROM RECENT
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD INVOLVING THESE UNIONS
THAT THE BOARD WAS OF THE OPINION THAT THEY WERE SUCH "LABOR
ORGANIZATIONS," THE STATE COURT HELD THAT THEY WERE NOT, ON THE GROUND
THAT ONLY "SUPERVISORY" PERSONNEL WERE INVOLVED IN THE DISPUTE.  HELD:
THE DISPUTE WAS ARGUABLY WITHIN THE JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD, AND, THEREFORE, THE STATE COURT WAS PRECLUDED FROM
EXERCISING JURISDICTION.  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON,
359 U.S. 236.  PP. 174-185. 

(A)  THE PRINCIPLES OF SAN DIEGO BUILDING TRADES COUNCIL V. GARMON
CONFINED THE STATE COURT TO DECIDING ONLY WHETHER THE EVIDENCE IN THIS
CASE WAS SUFFICIENT TO SHOW THAT EITHER OF THE PETITIONER UNIONS WAS
ARGUABLY A "LABOR ORGANIZATION" WITHIN THE CONTEMPLATION OF SEC. 8(B). 
PP. 177-182. 

(B)  THE EVIDENCE IN THIS CASE, INCLUDING RECENT DECISIONS OF THE
NATIONAL LABOR RELATIONS BOARD, WAS SUFFICIENT TO DEPRIVE THE STATE
COURT OF JURISDICTION OVER THIS CONTROVERSY.  PP. 182-183. 

(C)  EVIDENCE HAVING BEEN INTRODUCED TO SHOW THAT THE PETITIONER
UNIONS WERE ARGUABLY "LABOR ORGANIZATIONS" FOR THE PURPOSES OF SEC.
8(B), IT WAS THE DUTY OF THE STATE COURT TO DEFER TO THE BOARD'S
DETERMINATION, IN THE ABSENCE OF A SHOWING THAT THIS POSITION HAD BEEN
AUTHORITATIVELY REJECTED BY THE COURTS OR ABANDONED BY THE BOARD.  P.
184. 

MARINE ENGINEERS BENEFICIAL ASSOCIATION ET AL. V. INTERLAKE STEAMSHIP
CO. ET AL. 

CERTIORARI TO THE SUPREME COURT OF MINNESOTA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, THIS
COURT HELD THAT THE PROPER ADMINISTRATION OF THE FEDERAL LABOR LAW
REQUIRES STATE COURTS TO RELINQUISH JURISDICTION NOT ONLY OVER THOSE
CONTROVERSIES ACTUALLY FOUND TO BE WITHIN THE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD, BUT ALSO OVER LITIGATION ARISING FROM
ACTIVITIES WHICH MIGHT ARGUABLY BE SUBJECT TO THAT AGENCY'S
COGNIZANCE.  ONLY SUCH A RULE, THE COURT HELD, WILL PRESERVE FOR THE
LABOR BOARD ITS CONGRESSIONALLY DELEGATED FUNCTION OF DECIDING WHAT IS
AND WHAT IS NOT WITHIN ITS DOMAIN.  (FN1)  IN THE PRESENT CASE THE
SUPREME COURT OF MINNESOTA HELD THAT THE PETITIONERS, MARINE ENGINEERS
BENEFICIAL ASSOCIATION (MEBA) AND ITS LOCAL 101, WERE NOT "LABOR
ORGANIZATIONS" WITHIN THE MEANING OF SEC. 8(B) OF THE LABOR MANAGEMENT
RELATIONS ACT, 29 U.S.C. SEC. 158(B), AND THEREFORE NOT SUBJECT TO THE
UNFAIR LABOR PRACTICE PROVISIONS OF THAT SECTION OF THE STATUTE. 
ACCORDINGLY, THE COURT HELD THAT A STATE TRIAL COURT HAD NOT ERRED IN
ASSUMING JURISDICTION OVER A LABOR DISPUTE INVOLVING MEBA AND LOCAL
101, AND IN PERMANENTLY ENJOINING THEM FROM PICKETING FOUND TO BE IN
VIOLATION OF STATE LAW.  260 MINN. 1, 108 N.W.2D 627.  WE GRANTED
CERTIORARI, 368 U.S. 811, TO CONSIDER AN ASSERTED CONFLICT BETWEEN THE
MINNESOTA COURT'S DECISION AND OUR HOLDING IN THE GARMON CASE. 

THE ESSENTIAL FACTS WHICH GAVE RISE TO THIS CONTROVERSY ARE NOT IN
DISPUTE.  THE RESPONDENTS OWNED AND OPERATED A FLEET OF BULK CARGO
VESSELS ON THE GREAT LAKES.  MEBA AND LOCAL 101 WERE UNIONS WHICH
REPRESENTED MARINE ENGINEERS EMPLOYED ON THE GREAT LAKES AND
ELSEWHERE.  (FN2)  THE MARINE ENGINEERS EMPLOYED BY THE RESPONDENTS
WERE NOT REPRESENTED BY MEBA OR ANY OTHER UNION. 

ON NOVEMBER 11, 1959, THE RESPONDENTS' VESSEL, SAMUEL MATHER, ARRIVED
AT THE DOCK OF THE CARNEGIE DOCK AND FUEL COMPANY IN DULUTH,
MINNESOTA.  THE FOLLOWING MORNING SEVERAL MEMBERS OF LOCAL 101 BEGAN TO
PICKET AT THE ONLY ENTRANCE ROAD TO THE CARNEGIE DOCK.  THEY CARRIED
SIGNS WHICH READ: "PICKANDS MATHER UNFAIR TO ORGANIZED LABOR.  THIS
DISPUTE ONLY INVOLVES P-M.  M.E.B.A. LOC.  101 AFL-CIO."  AND "M.E.B.A.
LOC.  101.  AFL-CIO.  REQUEST P-M ENGINEERS TO JOIN WITH ORGANIZED
LABOR TO BETTER WORKING CONDITIONS.  THIS DISPUTE ONLY INVOLVES P-M." 
WHEN THE PICKETS APPEARED, EMPLOYEES OF THE CARNEGIE DOCK AND FUEL
COMPANY REFUSED TO CONTINUE UNLOADING THE SAMUEL MATHER.  AS A RESULT,
THE SHIP WAS FORCED TO REMAIN AT THE DOCK, AND ANOTHER OF THE
RESPONDENTS' STEAMERS, THE PICKANDS, WAS COMPELLED TO RIDE AT ANCHOR
OUTSIDE THE HARBOR FOR A NUMBER OF DAYS, BECAUSE THE CARNEGIE DOCK
COULD ACCOMMODATE BUT ONE VESSEL AT A TIME. 

UPON LEARNING OF THE PICKET LINE, THE RESPONDENTS FILED A COMPLAINT
IN THE STATE COURT CHARGING THE UNION WITH SEVERAL VIOLATIONS OF STATE
LAW.  THE COMPLAINT ALLEGED, AMONG OTHER THINGS, THAT THE PETITIONERS
HAD INDUCED CARNEGIE'S EMPLOYEES TO REFUSE TO PERFORM SERVICES, AND
THAT THE PETITIONERS HAD THUS CAUSED CARNEGIE TO BREACH ITS CONTRACT
WITH THE RESPONDENTS.  THE PETITIONERS FILED A MOTION TO DISMISS THE
COMPLAINT, CLAIMING THAT THE DISPUTE WAS ARGUABLY SUBJECT TO THE
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD AND THUS, UNDER THE
GARMON DOCTRINE, BEYOND THE STATE COURT'S COGNIZANCE.  (FN3)  EVIDENCE
WAS TAKEN CONCERNING THE NATURE AND EFFECT OF THE PICKETING, THE
EMPLOYMENT STATUS OF RESPONDENTS' MARINE ENGINEERS, AND, TO A LIMITED
EXTENT, THE CHARACTERISTICS OF MEBA AND LOCAL 101.  THE TRIAL COURT
CONCLUDED THAT THE DISPUTE WAS WITHIN ITS JURISDICTION, AND, FINDING
THE PICKETING TO BE IN VIOLATION OF MINNESOTA LAW, IT ISSUED A
TEMPORARY INJUNCTION PROHIBITING THE PETITIONERS FROM PICKETING AT OR
NEAR ANY SITE WHERE THE RESPONDENTS' VESSELS WERE LOADING OR UNLOADING,
FROM INDUCING OTHER EMPLOYEES OR OTHER FIRMS NOT TO PERFORM SERVICES
FOR THE RESPONDENTS, AND FROM INTERFERING IN OTHER SPECIFIED WAYS WITH
THE RESPONDENTS' OPERATIONS.  THE INJUNCTION WAS LATER MADE PERMANENT
ON THE BASIS OF THE SAME RECORD, AND THE COURT'S JUDGMENT WAS AFFIRMED
ON REVIEW BY THE SUPREME COURT OF MINNESOTA. 

THE GARMON CASE DEALT WITH RULES OF CONDUCT - WHETHER CERTAIN
ACTIVITIES WERE PROTECTED BY SEC. 7 OR PROHIBITED BY SEC. 8 OF THE
ACT.  IN THE PRESENT CASE IT HAS HARDLY BEEN DISPUTED, NOR COULD IT BE,
THAT THE PETITIONERS' CONDUCT WAS OF A KIND ARGUABLY PROHIBITED BY SEC.
8(B)(4)(A) OF THE ACT AND THUS WITHIN THE PRIMARY JURISDICTION OF THE
BOARD, IF MEBA AND LOCAL 101 WERE "LABOR ORGANIZATIONS" WITHIN THE
CONTEMPLATION OF SEC. 8(B) GENERALLY.  (FN4)  THE MINNESOTA COURTS
DETERMINED, HOWEVER, THAT THOSE WHOM THE PETITIONERS REPRESENTED AND
SOUGHT TO ENLIST WERE "SUPERVISORS," THAT CONSEQUENTLY NEITHER OF THE
PETITIONERS WAS A "LABOR ORGANIZATION," AND THEREFORE THAT NOTHING IN
THE GARMON DOCTRINE PRECLUDED A STATE COURT FROM ASSUMING
JURISDICTION. 

IS IS THE PETITIONERS' CONTENTION THAT THE ISSUE TO BE DETERMINED IN
THIS CASE IS NOT WHETHER THE STATE COURTS CORRECTLY DECIDED THEIR
"LABOR ORGANIZATION" STATUS, BUT WHETHER THE STATE COURTS WERE FREE TO
FINALLY DECIDE THAT ISSUE AT ALL.  THE PETITIONERS CONTEND THAT THE
PRINCIPLES OF THE GARMON DECISION CONFINED THE STATE COURT TO DECIDING
ONLY WHETHER THE EVIDENCE IN THIS CASE WAS SUFFICIENT TO SHOW THAT
EITHER OF THEM WAS ARGUABLY A "LABOR ORGANIZATION" WITHIN THE
COMTEMPLATION OF SEC. 8(B).  WE AGREE, AND HOLD THAT THE EVIDENCE WAS
SUFFICIENT TO DEPRIVE THE MINNESOTA COURTS OF JURISDICTION OVER THIS
CONTROVERSY. 

WE SEE NO REASON TO ASSUME THAT THE TASK OF INTERPRETING AND APPLYING
THE STATUTORY DEFINITION OF A "LABOR ORGANIZATION" DOES NOT CALL FOR
THE SAME ADJUDICATORY EXPERTISE THAT THE BOARD MUST BRING TO BEAR WHEN
IT DETERMINES THE APPLICABILITY OF SECS. 7 AND 8 OF THE ACT TO
SUBSTANTIVE CONDUCT.  INDEED, ANALYSIS OF THE PROBLEM MAKES CLEAR THAT
THE PROCESS OF DEFINING THE TERM "LABOR ORGANIZATION" IS ONE WHICH MAY
OFTEN REQUIRE THE FULL RANGE OF BOARD COMPETENCE. 

THE TERM "LABOR ORGANIZATION" IS DEFINED BY SEC. 2(5) OF THE ACT,
WHICH SAYS: 

"THE TERM 'LABOR ORGANIZATION' MEANS ANY ORGANIZATION OF ANY KIND, OR
ANY AGENCY OR EMPLOYEE REPRESENTATION COMMITTEE OR PLAN, IN WHICH
EMPLOYEES PARTICIPATE AND WHICH EXISTS FOR THE PURPOSE, IN WHOLE OR IN
PART, OF DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR DISPUTES,
WAGES, RATES OF PAY, HOURS OF EMPLOYMENT, OR CONDITIONS OF WORK."  29
U.S.C. SEC. 152(5). 

THE PART OF THAT DEFINITION AT ISSUE IN THE PRESENT CASE IS THE
REQUIREMENT THAT "EMPLOYEES PARTICIPATE" IN THE ORGANIZATION.  AS
DEFINED BY SEC. 2(3) OF THE ACT, "THE TERM 'EMPLOYEE'  ... SHALL NOT
INCLUDE  ...  ANY INDIVIDUAL EMPLOYED AS A SUPERVISOR  ...  ."  29
U.S.C. SEC. 152(3).  (FN5)  "SUPERVISOR" IS DEFINED IN TURN BY SEC.
2(11) OF THE ACT TO MEAN: 

"  ...  ANY INDIVIDUAL HAVING AUTHORITY, IN THE INTEREST OF THE
EMPLOYER, TO HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE,
DISCHARGE, ASSIGN, REWARD, OR DISCIPLINE OTHER EMPLOYEES, OR
RESPONSIBLY TO DIRECT THEM, OR TO ADJUST THEIR GRIEVANCES, OR
EFFECTIVELY TO RECOMMEND SUCH ACTION, IF IN CONNECTION WITH THE
FOREGOING THE EXERCISE OF SUCH AUTHORITY IS NOT OF A MERELY ROUTINE OR
CLERICAL NATURE, BUT REQUIRES THE USE OF INDEPENDENT JUDGMENT."  29
U.S.C. SEC. 152(11). 

THE STATUTORY DEFINITION OF THE TERM "SUPERVISOR" HAS BEEN THE
SUBJECT OF CONSIDERABLE LITIGATION BEFORE THE NLRB AND IN THE FEDERAL
COURTS.  (FN6)  IT IS IMMEDIATELY APPARENT, MOREOVER, THAT THE PHRASE
"ORGANIZATION  ...  IN WHICH EMPLOYEES PARTICIPATE" IS FAR FROM SELF
EXPLANATORY.  SEVERAL RECURRING QUESTIONS STEM FROM THE FACT THAT
NATIONAL OR EVEN LOCAL UNIONS MAY REPRESENT BOTH "EMPLOYEES" AND
"SUPERVISORS."  (FN7)  FOR EXAMPLE, IS EMPLOYEE PARTICIPATION IN ANY
PART OF A DEFENDANT NATIONAL OR LOCAL UNION SUFFICIENT, OR MUST
"EMPLOYEES" BE INVOLVED IN THE IMMEDIATE LABOR DISPUTE?  (FN8)  WHAT
PERCENTAGE OR DEGREE OF EMPLOYEE PARTICIPATION IN THE RELEVANT UNIT IS
REQUIRED?  (FN9)  IF AN ORGANIZATION IS OPEN TO "EMPLOYEES" OR SOLICITS
THEIR MEMBERSHIP, MUST THERE BE A SHOWING THAT THERE ARE ACTUALLY
EMPLOYEE MEMBERS?  AND, IF A LOCAL UNION IS NOT ITSELF A "LABOR
ORGANIZATION," ARE THERE CONDITIONS UNDER WHICH IT MAY BECOME SUBJECT
TO SEC. 8(B) AS AN AGENT OF SOME OTHER ORGANIZATION WHICH IS?  (FN10) 

THE CONSIDERATIONS INVOLVED IN ANSWERING THESE QUESTIONS ARE LARGELY
OF A KIND MOST WISELY ENTRUSTED INITIALLY TO THE AGENCY CHARGED WITH
THE DAY-TO-DAY ADMINISTRATION OF THE ACT AS A WHOLE.  THE TERM "LABOR
ORGANIZATION" APPEARS IN A NUMBER OF SECTIONS OF THE ACT.  SECTION
8(A)(2), FOR EXAMPLE, FORBIDS EMPLOYERS TO "DOMINATE OR INTERFERE WITH
THE FORMATION OR ADMINISTRATION OF ANY LABOR ORGANIZATION OR CONTRIBUTE
FINANCIAL OR OTHER SUPPORT TO IT  ...  ."  29 U.S.C. SEC. 158(A)(2). 
CERTAIN DISCRIMINATORY CONDUCT, "TO ENCOURAGE OR DISCOURAGE MEMBERSHIP
IN ANY LABOR ORGANIZATION  ...  ."  29 U.S.C. SEC. 158(A)(3).  SECTION
9(C), DEALING WITH THE LARGELY UNREVIEWABLE AREA OF REPRESENTATION
ELECTIONS, (FN11) REFERS REPEATEDLY TO BOTH "EMPLOYEES" AND "LABOR
ORGANIZATIONS."  THE POLICY CONSIDERATIONS UNDERLYING THESE AND OTHER
APPROACH UNDER SEC. 8(B) TO THE MEANING OF THE SAME TERM IN THE VARIOUS
OPERATE AS A COHERENT WHOLE.  (FN12)  A CENTRALIZED ADJUDICATORY
PROCESS IS ALSO ESSENTIAL IN WORKING OUT A CONSISTENT APPROACH TO THE
STATUS OF THE MANY SEPARATE UNIONS WHICH MAY REPRESENT INTERRELATED
OCCUPATIONS IN A SINGLE INDUSTRY.  (FN13)  MOREOVER, AS THE NATIONAL
AGENCY CHARGED WITH THE ADMINISTRATION OF FEDERAL LABOR LAW, THE BOARD
SHOULD BE FREE IN THE FIRST INSTANCE TO CONSIDER THE WHOLE SPECTRUM OF
POSSIBLE APPROACHES TO THE QUESTION, RANGING FROM A BROAD DEFINITION OF
"LABOR ORGANIZATION" IN TERMS OF AN ENTIRE UNION TO A NARROW CASE-BY
CASE CONSIDERATION OF THE ISSUE.  ONLY THE BOARD CAN KNOWLEDGEABLY
WEIGH THE EFFECT OF EITHER CHOICE UPON THE CERTAINTY AND PREDICTABILITY
OF LABOR MANAGEMENT RELATIONS, OR ASSESS THE IMPORTANCE OF SIMPLE
ADMINISTRATIVE CONVENIENCE IN THIS AREA.  (FN14) 

FOR THESE REASONS WE CONCLUDE THAT THE TASK OF DETERMINING WHAT IS A
"LABOR ORGANIZATION" IN THE CONTEXT OF SEC. 8(B) MUST IN ANY DOUBTFUL
CASE BEGIN WITH THE NATIONAL LABOR RELATIONS BOARD, AND THAT THE ONLY
WORKABLE WAY TO ASSURE THIS RESULT IS FOR THE COURTS TO CONCEDE THAT A
UNION IS A "LABOR ORGANIZATION" FOR SEC. 8(B) PURPOSES WHENEVER A
REASONABLY ARGUABLE CASE IS MADE TO THAT EFFECT.  SUCH A CASE WAS MADE
IN THE MINNESOTA COURTS. 

THERE PERSUASIVE EVIDENCE WAS INTRODUCED TO SHOW THAT ALL THE MARINE
ENGINEERS EMPLOYED BY THE RESPONDENTS WERE IN FACT SUPERVISORS.  (FN15)
IT WAS ALSO SHOWN THAT MEBA HAD STEADFASTLY MAINTAINED IN PROCEEDINGS
BEFORE THE NLRB THAT IS WAS NOT A LABOR ORGANIZATION SUBJECT TO SEC.
8(B) OF THE ACT.  (FN16)  HOWEVER, THE PETITIONERS INTRODUCED INTO THE
RECORD TWO RECENT BOARD DECISIONS, ONE HOLDING THAT MEBA WAS SUBJECT TO
SEC. 8(B) AND WAS GUILTY OF AN UNFAIR LABOR PRACTICE FOR ENGAGING IN AN
ACTIVITY SIMILAR TO THAT INVOLVED IN THIS CASE, (FN17) AND THE OTHER
HOLDING THAT MARINE ENGINEERS REPRESENTED BY A BRANCH OF LOCAL 101 WERE
"EMPLOYEES" FOR THE PURPOSES OF A SEC. 9(C) ELECTION.  (FN18)  THE
BOARD'S ORDER IN THE FIRST CASE WAS ENFORCED BY THE COURT OF APPEALS
FOR THE SECOND CIRCUIT ON JANUARY 13, 1960, DURING THE PENDENCY OF THE
PRESENT LITIGATION IN THE MINNESOTA TRIAL COURT.  (FN19)  THE STATE
COURT'S ATTENTION WAS EXPRESSLY CALLED TO THE BOARD'S THEORY,
SUBSEQUENTLY ADOPTED BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
THAT THE RELEVANT UNIT OF MEMBERSHIP FOR DETERMINING WHAT IS A LABOR
ORGANIZATION IN A SEC. 8(B) CONTEXT IS THE ENTIRE UNION, AND TO THE
HOLDING THAT THE KNOWN MEMBERSHIP OF A FEW "EMPLOYEES," PROVISIONS IN
THE UNION'S CONSTITUTION MAKING MEMBERSHIP AVAILABLE TO "EMPLOYEES,"
AND PREVIOUS CONDUCT INDICATIVE OF "EMPLOYEE" REPRESENTATION WERE
SUFFICIENT TO RENDER THE NATIONAL UNION A "LABOR ORGANIZATION."  SEE
121 N.L.R.B., AT 209-210; 274 F.2D, AT 174-175.  THREE ADDITIONAL
DISTRICT COURT DECISIONS EXPRESSLY HOLDING THAT THE BOARD HAD
REASONABLE CAUSE TO BELIEVE THAT MEBA OR LOCAL 101 WAS SUBJECT TO SEC.
8(B) HAD BEEN DECIDED BEFORE THE ISSUANCE OF THE MINNESOTA TRIAL
COURT'S JUDGMENT IN THE PRESENT LITIGATION, ALTHOUGH THE RECORD DOES
NOT SHOW THAT THESE WERE SPECIFICALLY BROUGHT TO THE COURT'S
ATTENTION.  (FN20) 

THIS WAS A CASE, THEREFORE, WHERE A STATE COURT WAS SHOWN NOT SIMPLY
THE ARGUABLE POSSIBILITY OF LABOR BOARD JURISDICTION OVER THE
CONTROVERSY BEFORE IT, BUT THAT THE BOARD HAD ACTUALLY DETERMINED THE
UNDERLYING ISSUE UPON WHICH ITS JURISDICTION DEPENDED, I.E., THAT MEBA
WAS A "LABOR ORGANIZATION" FOR PURPOSES OF SEC. 8(B) OF THE ACT.  IN
THE ABSENCE OF A SHOWING THAT THIS POSITION HAD BEEN AUTHORITATIVELY
REJECTED BY THE COURTS, (FN21) OR ABANDONED BY THE LABOR BOARD ITSELF,
WE HOLD THAT IT WAS THE DUTY OF THE STATE COURT TO DEFER TO THE BOARD'S
DETERMINATION.  (FN22)    THE NEED FOR PROTECTING THE EXCLUSIVITY OF
NLRB JURISDICTION IS OBVIOUSLY GREATEST WHEN THE PRECISE ISSUE BROUGHT
BEFORE A COURT IS IN THE PROCESS OF LITIGATION THROUGH PROCEDURES
ORIGINATING IN THE BOARD.  WHILE THE BOARD'S DECISION IS NOT THE LAST
WORD, IT MUST ASSUREDLY BE THE FIRST.  IN ADDITION, WHEN THE BOARD HAS
ACTUALLY UNDERTAKEN TO DECIDE AN ISSUE, RELITIGATION IN A STATE COURT
CREATES MORE THAN THEORETICAL DANGER OF ACTUAL CONFLICT BETWEEN STATE
AND FEDERAL REGULATION OF THE SAME CONTROVERSY.  (FN23)  "OUR CONCERN"
HERE, AS IT WAS IN THE GARMON CASE, 359 U.S., AT 246, "IS WITH
DELIMITING AREAS  ...  WHICH MUST BE FREE FROM STATE REGULATION IF
NATIONAL POLICY IS TO BE LEFT UNHAMPERED."  REVERSED. 

FN1  "AT TIMES IT HAS NOT BEEN CLEAR WHETHER THE PARTICULAR ACTIVITY
REGULATED BY THE STATES WAS GOVERNED BY SEC. 7 OR SEC. 8 OR WAS,
PERHAPS, OUTSIDE BOTH THESE SECTIONS.  BUT COURTS ARE NOT PRIMARY
TRIBUNALS TO ADJUDICATE SUCH ISSUES.  IT IS ESSENTIAL TO THE
ADMINISTRATION OF THE ACT THAT THESE DETERMINATIONS BE LEFT IN THE
FIRST INSTANCE TO THE NATIONAL LABOR RELATIONS BOARD.  WHAT IS OUTSIDE
THE SCOPE OF THIS COURT'S AUTHORITY CANNOT REMAIN WITHIN A STATE'S
POWER AND STATE JURISDICTION TOO MUST YIELD TO THE EXCLUSIVE PRIMARY
COMPETENCE OF THE BOARD."  359 U.S., AT 244-245. 

FN2  THE RECORD SHOWS THAT LOCAL 101 WAS HARDLY A "LOCAL" IN THE
CONVENTIONAL SENSE OF THAT TERM.  IT HAD BRANCH OFFICES NOT ONLY
THROUGHOUT THE GREAT LAKES AREA, BUT ALSO IN BROOKLYN, SAN FRANCISCO,
AND HOUSTON, AMONG OTHER PLACES, AND THERE WERE "APPROXIMATELY 35 TO 40
LOCALS IN 101; SOME ARE VERY SMALL, SOME ARE VERY LARGE." 

FN3  POTENTIAL NLRB JURISDICTION UNDER SEC. 8(B) IS THE ONLY BASIS
UPON WHICH THE PETITIONERS HAVE CLAIMED PREEMPTION OF STATE COURT
JURISDICTION.  SEE NOTE 4, INFRA. 

FN4  ON NOVEMBER 12, 1959, THE DAY THE PICKETING BEGAN, SEC.
8(B)(4)(A) PROVIDED AS FOLLOWS: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS
AGENTS: 

     *         *      *         *         * 

"(4)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS:  (A) FORCING OR
REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR
EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON  ...  ."  29 U.S.C. SEC. 158(B)(4)(A). 

SHORTLY THEREAFTER THE AMENDMENTS MADE BY THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT BECAME EFFECTIVE, AND SEC. 8(B)(4)(A)
BECAME SEC. 8(B)(4)(B), 29 U.S.C. (SUPP. II) SEC. 158(B)(4)(B).  THE
HERE-PERTINENT LANGUAGE OF THE AMENDED SECTIONS REMAINED VIRTUALLY THE
SAME. 

WE EXPRESS NO OPINION ON THE ULTIMATE APPLICABILITY OF THESE
PROVISIONS.  COMPARE SAILORS' UNION OF THE PACIFIC (MOORE DRY DOCK
CO.), 92 N.L.R.B. 547, WITH NATIONAL MARITIME UNION (STANDARD OIL CO.),
121 N.L.R.B. 208, ENFORCED, 274 F.2D 167.  SEE GENERALLY, LOCAL 761,
ELECTRICAL WORKERS V. LABOR BOARD, 366 U.S. 667. 

FN5  THE DECISION OF CONGRESS TO FOREGO REGULATION OF LABOR RELATIONS
BETWEEN EMPLOYERS AND THEIR SUPERVISORY PERSONNEL WAS THE PRODUCT OF
EXPERIENCE UNDER THE NATIONAL LABOR RELATIONS ACT OF 1935.  THE BOARD'S
ASSUMPTION OF JURISDICTION OVER SUPERVISORS UNDER THE 1935 ACT WAS
APPROVED BY THIS COURT IN PACKARD MOTOR CAR CO. V. LABOR BOARD, 330
U.S. 485.  CONGRESS PASSED THE 1947 ACT SHORTLY THEREAFTER, EXPLICITLY
STATING ITS PURPOSE TO FREE EMPLOYERS FROM COMPULSION TO TREAT
SUPERVISORY PERSONNEL AS EMPLOYEES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR ORGANIZATIONAL ACTIVITY.  S. REP. NO. 105, 80TH CONG.,
1ST SESS., PP. 3-5, 28; H.R. REP. NO. 245, 80TH CONG., 1ST SESS., PP.
13-17. 

FN6  COMPARE, E.G., GLOBE STEAMSHIP CO. (GREAT LAKES ENGINEERS
BROTHERHOOD), 85 N.L.R.B.  475, WITH NATIONAL MARITIME UNION (STANDARD
OIL CO.), 121 N.L.R.B., AT 209-210, AND GRAHAM TRANSP.  CO.
(BROTHERHOOD OF MARINE ENGINEERS), 124 N.L.R.B. 960.  SEE GENERALLY,
LABOR BOARD V. BROWN & SHARPE MFG. CO., 169 F.2D 331; LABOR BOARD V.
EDWARD G. BUDD MFG. CO., 169 F.2D 571; OHIO POWER CO. V. LABOR BOARD,
176 F.2D 385; LABOR BOARD V. QUINCY STEEL CASTING CO., 200 F.2D 293. 
SUMMARIZING THE MANY FEDERAL COURT DECISIONS IN THIS AREA, THE COURT OF
APPEALS FOR THE FIRST CIRCUIT RECENTLY SAID, "  ...  THE GRADATIONS OF
AUTHORITY 'RESPONSIBLY TO DIRECT' THE WORK OF OTHERS FROM THAT OF
GENERAL MANAGER OR OTHER TOP EXECUTIVE TO 'STRAW BOSS' ARE SO INFINITE
AND SUBTLE THAT OF NECESSITY A LARGE MEASURE OF INFORMED DISCRETION IS
INVOLVED IN THE EXERCISE BY THE BOARD OF ITS PRIMARY FUNCTION TO
DETERMINE THOSE WHO AS A PRACTICAL MATTER FALL WITHIN THE STATUTORY
DEFINITION OF A 'SUPERVISOR.'"  LABOR BOARD V. SWIFT & CO., 292 F.2D
561, 563. 

FN7  SEE LABOR BOARD V. EDWARD G. BUDD MFG. CO., SUPRA, N. 6;
INTERNATIONAL BROTHERHOOD OF TEAMSTERS (DI GIORGIO WINE CO.), 87
N.L.R.B. 720, ENFORCED, 89 U.S. APP. D.C. 155, 191 F.2D 642. 

FN8  SEE, E.G., NATIONAL MARINE ENGINEERS BENEFICIAL ASSN. V. LABOR
BOARD, 274 F.2D 167, 173; INTERNATIONAL ORGANIZATION OF MASTERS, MATES
& PILOTS (CHICAGO CALUMET STEVEDORING CO.), 125 N.L.R.B. 113, 131-132. 

FN9  SEE, E.G., INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS
V. LABOR BOARD, 48 L.R.R.M. 2624 (C.A.D.C. CIR. 1960). 

FN10  COMPARE INTERNATIONAL BROTHERHOOD OF TEAMSTERS (DI GIORGIO WINE
CO.), 87 N.L.R.B., AT 721, 743, WITH NATIONAL MARITIME UNION (STANDARD
OIL CO.), 121 N.L.R.B., AT 210. 

FN11  SEE LEEDOM V. KYNE, 358 U.S. 184. 

FN12  CF. INTERNATIONAL BROTHERHOOD OF TEAMSTERS (DI GIORGIO WINE
CO.), 87 N.L.R.B., AT 741. 

FN13  CF. GLOBE STEAMSHIP CO. (GREAT LAKES ENGINEERS BROTHERHOOD), 85
N.L.R.B., AT 478, 480. 

FN14  SEE NATIONAL MARINE ENGINEERS BENEFICIAL ASSN. V. LABOR BOARD,
274 F.2D, AT 175, WHERE IT WAS SAID: 

"WE EARNESTLY SUGGEST TO THE BOARD THAT THE ISSUE WHETHER THESE TWO
UNIONS, WHOSE ACTIVITIES CONCERN ALMOST EVERY OCEAN AND INLAND PORT OF
THE UNITED STATES, ARE 'LABOR ORGANIZATIONS' WITHIN THE MEANING OF THE
NATIONAL LABOR RELATIONS ACT DESERVES MORE THOROUGH TREATMENT THAN IT
HAS HAD HERE.  SUCH AN INVESTIGATION WOULD NOT, OF COURSE, HAVE TO BE
PERFORMED IN EVERY CASE.  ONCE THE BOARD DETERMINED ON THE BASIS OF A
FULL INQUIRY THAT MEBA AND MMP WERE OR WERE NOT LABOR ORGANIZATIONS,
THE BOARD COULD RELY ON THIS UNLESS THERE WAS EVIDENCE OF A CHANGE." 

FN15  THE TRIAL COURT RELIED, IN PART, UPON THE 1949 LABOR BOARD
DECISION IN GLOBE STEAMSHIP CO., SUPRA, N. 6, WHICH HELD THAT CERTAIN
MARINE ENGINEERS EMPLOYED ON GREAT LAKES VESSELS, INCLUDING THOSE OF
RESPONDENTS, WERE "SUPERVISORS" FOR THE PURPOSE OF A SEC. 9(C) ELECTION
PETITION. 

FN16  RESPONDENTS INTRODUCED AN AFFIDAVIT, FILED BY MEBA IN A PRIOR
NLRB PROCEEDING, IN WHICH THE UNION CLAIMED TO REPRESENT ONLY
SUPERVISORS.  THIS IS THE AFFIDAVIT QUOTED IN NOTE 1 OF THE DISSENTING
OPINION, POST, P. 185.  BUT, AS PETITIONERS POINTED OUT, THE BOARD
CONCLUDED THEN, AND HAS CONTINUED OF THE VIEW, THAT PETITIONERS ARE
"LABOR ORGANIZATIONS" DESPITE SUCH ASSERTIONS. 

THE PETITIONERS DID NOT ATTEMPT TO INTRODUCE SPECIFIC EVIDENCE IN THE
STATE COURT TO PROVE THAT THEY ACTUALLY REPRESENTED EMPLOYEES WHO WERE
NOT SUPERVISORS.  INDEED, THE RECORD WOULD SEEM TO INDICATE THAT MEBA
AND LOCAL 101 WOULD ULTIMATELY PREFER TO BE CLASSIFIED AS SUPERVISORY
UNIONS OUTSIDE THE AMBIT OF SEC. 8 OF THE FEDERAL ACT.  THE ACTUAL
ASSERTION OF NLRB JURISDICTION OVER THESE UNIONS, HOWEVER, AT THE VERY
TIME THE STATE COURT ACTION WAS PENDING, WAS MORE THAN SUFFICIENT TO
CREATE AN ARGUABLE CASE FOR NLRB JURISDICTION UNDER SEC. 8.  IT WOULD
BE ENTIRELY INCONSISTENT WITH OUR HOLDING IN GARMON TO REQUIRE THE
UNIONS AFFIRMATIVELY TO ABANDON IN THE STATE COURT THE POSITION THEY
WISHED TO MAINTAIN BEFORE THE NLRB.  IT WOULD BE EQUALLY INCONSISTENT
TO GIVE EVIDENTIARY WEIGHT TO UNION AFFIDAVITS DREDGED UP FROM PRIOR
NLRB PROCEEDINGS IN WHICH THE BOARD REJECTED THE UNION'S SELF
CHARACTERIZING CLAIMS. 

FN17  NATIONAL MARITIME UNION (STANDARD OIL CO.), SUPRA, N. 4. 

FN18  GRAHAM TRANSP.  CO. (BROTHERHOOD OF MARINE ENGINEERS), SUPRA,
N. 6.  AN OFFICIAL OF LOCAL 101 TESTIFIED ON DIRECT EXAMINATION THAT
THE BROTHERHOOD OF MARINE ENGINEERS "WAS MERGED IN OUR LOCAL" ON MAY
29, 1959. 

FN19  NATIONAL MARINE ENGINEERS BENEFICIAL ASSN. V. LABOR BOARD,
SUPRA, N. 8. 

FN20  SCHAUFFLER V. LOCAL 101, MARINE ENGINEERS BEN.  ASSN., 180 F.
SUPP. 932; PENELLO V. SEAFARERS' INTERNATIONAL UNION, 40 L.R.R.M. 2180
(D.C.E.D. VA., 1957); DOUDS V. SEAFARERS' INTERNATIONAL UNION, 148 F.
SUPP. 953. 

FN21  THE TRIAL COURT NOTED THAT THE COURT OF APPEALS FOR THE SECOND
CIRCUIT HAD DETERMINED THAT MEBA WAS NOT A "LABOR ORGANIZATION" WITHIN
THE MEANING OF SEC. 301 OF THE FEDERAL STATUTE.  A.H. BULL STEAMSHIP
CO. V. NATIONAL MARINE ENG. B. ASSN., 250 F.2D 332.  THIS CASE WAS
SUBSEQUENTLY DISTINGUISHED BY THE SECOND CIRCUIT IN A CASE UNDER SEC.
8(B), NATIONAL MARINE ENGINEERS BENEFICIAL ASSN. V. LABOR BOARD, SUPRA,
N. 8, AND IN UNITED STATES V. NATIONAL MARINE ENGINEERS' BEN.  ASSN.,
294 F.2D 385.  SUBSEQUENT TO THE TRIAL COURT'S DECISION IN THE PRESENT
CASE THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ORDERED
THE NLRB TO TAKE ADDITIONAL EVIDENCE AND TO RECONSIDER ITS
DETERMINATION OF A SIMILAR MARITIME UNION'S STATUS AS A "LABOR
ORGANIZATION."  INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS
V. LABOR BOARD, SUPRA, N. 9.  AT THE MOST THESE COURT DECISIONS WOULD
ONLY SERVE TO CAST SOME DOUBT ON THE VALIDITY OF THE BOARD'S
DETERMINATION.  BUT EVEN IF THE DOUBT WERE MUCH MORE SUBSTANTIAL, THE
GARMON DOCTRINE WOULD REQUIRE A STATE COURT TO DECLINE JURISDICTION OF
THE CONTROVERSY. 

FN22  TO DISTINGUISH THE SEVERAL NLRB DECISIONS ON THE GROUND THAT
EACH INVOLVED MARINE ENGINEERS WHOSE JOBS WERE UNLIKE THOSE OF THE
RESPONDENTS' ENGINEERS, AS THE MINNESOTA COURTS SOUGHT TO DO, IS
INCONSISTENT WITH ALL THAT GARMON TEACHES.  SUCH A DISTINCTION CAN BE
MADE ONLY ON THE ASSUMPTION THAT THE RELEVANT UNIT IN DETERMINING WHAT
IS A "LABOR ORGANIZATION" FOR PURPOSES OF SEC. 8(B) IS NO MORE THAN THE
GROUP OF EMPLOYEES INVOLVED IN THE THEN-PENDING DISPUTE.  THE VALIDITY
OF THIS VERY ASSUMPTION IS CURRENTLY BEING LITIGATED BEFORE THE LABOR
BOARD AND REVIEWING COURTS.  FAR FROM HAVING BEEN AUTHORITATIVELY
ACCEPTED, THIS LIMITED VIEW OF THE RELEVANT UNIT HAS AT LEAST TWICE
BEEN EXPRESSLY REJECTED.  NATIONAL MARINE ENGINEERS BENEFICIAL ASSN. V.
LABOR BOARD, 274 F.2D, AT 173, ENFORCING 121 N.L.R.B. 208;
INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS (CHICAGO CALUMET
STEVEDORING CO.), 125 N.L.R.B., AT 131-132, REMANDED FOR
RECONSIDERATION ON OTHER GROUNDS, 48 L.R.R.M. 2624 (C.A.D.C. CIR.
1960). 

FN23  ILLUSTRATIVE OF THIS DANGER IS A RECENT FEDERAL DISTRICT COURT
DECISION GRANTING AN APPLICATION BY A REGIONAL DIRECTOR OF THE BOARD
FOR A TEMPORARY INJUNCTION AGAINST LOCAL 101 PROHIBITING ORGANIZATIONAL
ACTIVITY SIMILAR TO THAT INVOLVED IN THE PRESENT CASE.  SCHAUFFLER V.
LOCAL 101, MARINE ENGINEERS BEN.  ASSN., SUPRA, N. 20.  SEE ALSO OTHER
CASES CITED, N. 20, SUPRA. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHILE I AGREE WITH THE PRINCIPLES ANNOUNCED BY THE COURT, I DISAGREE
WITH THE RESULT THAT IS REACHED ON THE FACTS OF THIS CASE.  THE RECORD
CONTAINS AN AFFIDAVIT OF THE PRESIDENT OF THIS UNION, THE MARINE
ENGINEERS BENEFICIAL ASSOCIATION (MEBA), WHICH STATES THAT ALL MEMBERS
OF THE UNION, INCLUDING THE LOCAL INVOLVED IN THIS CASE, PERFORM
SUPERVISORY FUNCTIONS.  (FN1) 

AN OFFICER OF MEBA TESTIFIED: 

"LOCAL 101 OF THE MARINE ENGINEERS BENEFICIAL ASSOCIATION IS
COMPRISED OF THOSE MEN WHO ARE LICENSED AS MARINE ENGINEERS BY THE
UNITED STATES COAST GUARD, AND THOSE MEN WHO PERFORM THE ENGINEERING
DUTIES OF ENGINEERS, WHETHER OR NOT THEY ARE LICENSED BY THE COAST
GUARD." 

THE RECORD MAKES CLEAR THAT A LICENSED ENGINEER HAS SUPERVISORY
DUTIES WHENEVER THERE IS SOMEONE WORKING UNDER HIM.  THAT STATUS IS
GROUNDED IN THE HISTORIC DISTINCTION BETWEEN LICENSED AND UNLICENSED
PERSONNEL AND IS SHOWN BY THIS RECORD.  (FN2)  A UNION OF MASTERS AND
MATES WOULD PLAINLY BE A UNION OF SUPERVISORS AND UNDER PRESENT LAW NOT
BE QUALIFIED TO REPRESENT ORDINARY SEAMEN.  IF THERE ARE RARE INSTANCES
WHEN AN ENGINEER ON A TUG, FOR EXAMPLE, IS NOTHING MORE THAN AN
EMPLOYEE, THAT HAS NOT BEEN SHOWN IN THE RECORD AND IS DIRECTLY
CONTRARY TO THE AFFIDAVIT OF THIS UNION'S PRESIDENT. 

THE TRIAL COURT IN THIS CASE SAID THAT THE RECORD "DOES NOT SHOW"
THAT THIS MEBA LOCAL "ADMITS TO MEMBERSHIP ANY NON-SUPERVISORY
EMPLOYEE, AND IN ANY EVENT IT IS CLEAR THAT ITS MEMBERSHIP IS COMPOSED
PRIMARILY AND ALMOST EXCLUSIVELY OF SUPERVISORS."  THAT FINDING IS NOT
CHALLENGED HERE.  PETITIONERS, PLACING ALL THEIR HOPES ON THE WORDS OF
THE TRIAL COURT THAT THIS LOCAL IS COMPOSED "PRIMARILY AND ALMOST
EXCLUSIVELY OF SUPERVISORS," SAY IT MAY THEREFORE BE ARGUABLY AND
REASONABLY CONTENDED THAT THE LOCAL IS A LABOR ORGANIZATION WITHIN THE
MEANING OF THE ACT. 

WHICH EMPLOYEES PARTICIPATE" FOR THE PURPOSE "OF DEALING WITH EMPLOYERS
CONCERNING GRIEVANCES," ETC. 

THE WORD "EMPLOYEE" WAS REDEFINED BY CONGRESS (FN3) FOLLOWING OUR
DECISION IN PACKARD CO. V. LABOR BOARD, 330 U.S. 485, SO AS TO EXCLUDE
"ANY INDIVIDUAL EMPLOYED AS A SUPERVISOR."  SEC.  2(3).  AND SEC. 14(A)
PROVIDES THAT "NOTHING HEREIN SHALL PROHIBIT ANY INDIVIDUAL EMPLOYED AS
A SUPERVISOR FROM BECOMING OR REMAINING A MEMBER OF A LABOR
ORGANIZATION, BUT NO EMPLOYER SUBJECT TO THIS ACT SHALL BE COMPELLED TO
DEEM INDIVIDUALS DEFINED HEREIN AS SUPERVISORS AS EMPLOYEES FOR THE
PURPOSE OF ANY LAW, EITHER NATIONAL OR LOCAL, RELATING TO COLLECTIVE
BARGAINING."    THERE IS NOT A SHRED OF EVIDENCE IN THIS RECORD SHOWING
THAT ANY EMPLOYEE NOT A SUPERVISOR IS A MEMBER OF THIS UNION.  THERE IS
THEREFORE NOT A SHRED OF EVIDENCE TO SHOW THAT THIS LOCAL OF MEBA IS A
"LABOR ORGANIZATION."  SINCE THERE IS NOT, IT HAS MADE NO SHOWING THAT
IT IS ENTITLED TO ANY OF THE PROTECTIONS OF THE FEDERAL ACT.  SUCH A
SHOWING IS WITHIN ITS POWER TO MAKE.  IT APPARENTLY CLAIMS TO BE A
"LABOR ORGANIZATION" WHEN IT IS TO ITS ADVANTAGE TO DO SO AND PROTESTS
AGAINST BEING SO LABELED WHEN THAT POSITION SERVES ITS END.  (FN4) 

IF IT DESIRES THE PROTECTION OF THE FEDERAL ACT, IT SHOULD BE
REQUIRED TO COME FORTH WITH EVIDENCE SHOWING WHO ITS MEMBERS ARE.  IN
ABSENCE OF SUCH A SHOWING, WE SHOULD NOT DISTURB THE RULINGS OF THE
MINNESOTA COURTS, WHICH ON THIS RECORD WERE FULLY JUSTIFIED IN
ENJOINING THE PICKETING.  IT WAS INDEED CONCEDED BY COUNSEL FOR MEBA AT
THE TRIAL THAT THE PURPOSE OF THE PICKETING WAS "TO IMPROVE THE WAGES,
HOURS AND WORKING CONDITIONS" OF THE "LICENSED ENGINEERS," NOT THE
WAGES, HOURS AND WORKING CONDITIONS OF THOSE FEW UNDISCLOSED
INDIVIDUALS WHO IT IS NOW INTIMATED MAY HAVE BEEN MEMBERS OF THE
UNION. 

SINCE THIS LOCAL IS NOT ON THIS RECORD A "LABOR ORGANIZATION," IT
DOES NOT COME WITHIN THE PURVIEW OF SEC. 8(B)(2) OR SEC. 8(B)(4), WHICH
MAKES CERTAIN PRACTICES, ALLEGED TO HAVE TAKEN PLACE HERE, UNFAIR LABOR
PRACTICES.  FOR SEC. 14, QUOTED ABOVE, RETURNED SUPERVISORS TO THE
BASIS WHICH THEY ENJOYED PRIOR TO THE FEDERAL ACT.  BULL S.S. CO. V.
NATIONAL MARINE ENG. B. ASSN., 250 F.2D 332. 

IT MATTERS NOT THAT AT OTHER TIMES THIS LOCAL OR MEBA MAY HAVE BEEN A
"LABOR ORGANIZATION" FOR PURPOSES OF THE FEDERAL ACT.  (FN5)
APPARENTLY AN ENGINEER MAY AT TIMES BE ONLY AN ORDINARY EMPLOYEE. 
(FN6)  SO FOR ONE OPERATION THIS LOCAL MAY HAVE MEMBERS DOING THE WORK
OF NONSUPERVISORY EMPLOYEES.  WHETHER ITS STATUS WOULD THEREFORE CHANGE
FROM DAY-TO-DAY OR WEEK-TO-WEEK MIGHT BE PRESENTED IN SOME CASE.  IT IS
NOT PRESENTED HERE, FOR, ON A RECORD SHOWING ONLY SUPERVISORS AMONG THE
MEMBERSHIP LIST, THE UNION HAS NO CLAIM TO SHELTER UNDER THE FEDERAL
ACT. 

FN1  "I CAN STATE MOST CATEGORICALLY THAT LICENSED MARINE ENGINEERS
WHO COMPRISE THE ENTIRE MEMBERS OF MEBA, WITHOUT A SINGLE EXCEPTION IN
THE NATURE OF THEIR WORK, HAVE AUTHORITY IN THE INTERESTS OF THE
EMPLOYER FOR WHOM THEY MAY BE WORKING TO HIRE, TRANSFER, SUSPEND, LAY
OFF, RECALL, PROMOTE, DISCHARGE, FINE, REWARD OR DISCIPLINE THE
UNLICENSED PERSONNEL WHO WORK IN THE ENGINE DEPARTMENT, OVER WHICH THE
LICENSED ENGINEERS HAVE SUPERVISION OR RESPONSIBILITY TO DIRECT SUCH
UNLICENSED PERSONNEL IN THE ENGINE DEPARTMENT OR ADJUST THE GRIEVANCES
OF THE UNLICENSED PERSONNEL IN THE ENGINE DEPARTMENT, OR TO EFFECTIVELY
RECOMMEND ANY SUCH ACTION.  IN FURTHERANCE OF THEIR DUTIES, LICENSED
ENGINEERS DO NOT EXERCISE THE AUTHORITY JUST DESCRIBED MERELY AS A
ROUTINE OR CLERICAL NATURE, BUT THEY MUST EXERCISE THE USE OF
INDEPENDENT JUDGMENT.  EVERY SINGLE MEMBER OF MEBA PERFORMS WORK OF THE
NATURE WHICH I HAVE JUST DESCRIBED.  THE TYPE OF MARINE PERSONNEL OVER
WHOM THE MEBA ASSUMES JURISDICTION AND TAKES IN AS MEMBERS, IS
PRECISELY THAT WHICH I HAVE JUST DESCRIBED.  WE DO NOT HAVE ANY MEMBERS
WHO DO NOT FALL WITHIN SUCH DESCRIPTION, INSOFAR AS THEIR DUTIES AND
RESPONSIBILITIES ARE CONCERNED." 

FN2  THE FINDINGS STATE:  "ALL ENGINEERS AND ASSISTANT ENGINEERS
EMPLOYED ON INTERLAKE VESSELS STAND WATCHES DURING WHICH THEY ARE IN
CHARGE OF AND RESPONSIBLE FOR THE OPERATION AND CONDITION OF THE
VESSEL'S PROPULSION MECHANISM AND RESPONSIBLY DIRECT, CONTROL AND
SUPERVISE THE WORK OF THE FIREMEN, OILERS AND COAL PASSERS ON DUTY
DURING SUCH WATCH; THEY HIRE, FIRE, TRANSFER AND CHANGE THE STATUS OF
AND DISCIPLINE THE PERSONS WORKING UNDER THEM AND HAVE AUTHORITY TO AND
DO MAKE EFFECTIVE RECOMMENDATIONS RESPECTING THE EMPLOYMENT AND TENURE
OF EMPLOYMENT OF THE PEOPLE WORKING UNDER THEM; THEY HANDLE INITIALLY
GRIEVANCES OF THE EMPLOYEES WHO ARE SUBJECT TO THEIR SUPERVISION; THE
EXERCISE OF AUTHORITY BY THE ENGINEERS AND ASSISTANT ENGINEERS REQUIRES
THE USE OF INDEPENDENT JUDGMENT AND DISCRETION; AND ALL SUCH ENGINEERS
ARE REQUIRED TO BE LICENSED BY THE UNITED STATES COAST GUARD." 

FN3  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS., P. 23; S. REP. NO.
105, 80TH CONG., 1ST SESS., P. 28. 

FN4  CF. WITH THE DECISION BELOW THE CONTENTIONS OF MEBA IN NATIONAL
MARINE ENGINEERS BEN.  ASSN.  V. LABOR BOARD, 274 F.2D 167, 170 ("MEBA
SAYS ITS MEMBERSHIP IS COMPOSED EXCLUSIVELY OF SUPERVISORS") AND
SCHAUFFLER V. LOCAL 101, MARINE ENGINEERS BEN.  ASSN., 180 F. SUPP.
932, 935 (WHERE THE LOCAL INVOLVED IN THE PRESENT CASE ARGUED THAT IT
WAS NOT A LABOR ORGANIZATION WITHIN THE MEANING OF THE ACT).  IN
NATIONAL ORGANIZATION OF MASTERS, MATES, AND PILOTS OF AMERICA, ET AL,
116 N.L.R.B. 1787, MEBA ADMITTED IT WAS A "LABOR ORGANIZATION" WITHIN
THE MEANING OF THE ACT. 

FN5  THE FINDING OF THE LABOR BOARD IN NATIONAL MARINE ENGINEERS
BEN.  ASSN.  V. LABOR BOARD, 274 F.2D 167, THAT MEBA WAS A "LABOR
ORGANIZATION" TURNED ON A NARROW PROCEDURAL POINT MENTIONED BY THE
COURT OF APPEALS:  "MEBA AND MMP KNOW WHO THEIR MEMBERS ARE AND, IF
THEY DO NOT KNOW WHAT THEIR MEMBERS DO, CERTAINLY THEY CAN FIND OUT. 
THE BOARD COULD PROPERLY HAVE THOUGHT THAT THE MATTERS PLACED IN THE
RECORD BY THE GENERAL COUNSEL JUSTIFIED AN INFERENCE THAT NON
SUPERVISORS DO PARTICIPATE IN MEBA AND MMP, AND THAT THIS SUFFICED FOR
THE BOARD'S FINDING TO THAT EFFECT UNLESS THEY WERE REBUTTED BY MORE
CONVINCING EVIDENCE THAN THE UNIONS OFFERED HERE.  WE THEREFORE CANNOT
SAY THE BOARD'S FINDING THAT MEBA AND MMP WERE LABOR ORGANIZATIONS DID
NOT MEET THE STANDARDS LAID DOWN IN UNIVERSAL CAMERA CORP. V. N.L.R.B.,
1951, 340 U.S. 474, 71 S. CT. 456, 95 L. ED.  456."  274 F.2D, AT 175. 

FN6  SEE NATIONAL MARINE ENGINEERS BEN.  ASSN.  V. LABOR BOARD, 274
FF.2D 167, 172-173: "THE BOARD'S GENERAL COUNSEL DID NOT DISPUTE THAT
TWO OF THE THREE ENGINEERS ON THE FRANKLIN D. ROOSEVELT, THE CHIEF
ENGINEER AND THE RELIEF CHIEF ENGINEER, WERE SUPERVISORS; BUT THERE WAS
MUCH ARGUMENT WHETHER THE THIRD SHOULD BE SO CONSIDERED SINCE HE
EXERCISED SUPERVISORY DUTIES ONLY WHEN NEITHER THE CHIEF ENGINEER NOR
THE RELIEF CHIEF ENGINEER WAS ABOUT.  SEE N.L.R.B. V. QUINCY STEEL
CASTING CO., 1ST CIR., 1952, 200 F.2D 293.  THE GENERAL COUNSEL CLAIMED
THAT AT LEAST ONE OF THE ENGINEERS ON THE SANDRA MARIE COULD NOT HAVE
BEEN A SUPERVISOR SINCE HE HAD NO ONE TO SUPERVISE.  SEE GENERAL FOODS
CORP., 110 N.L.R.B. 1088 (1954).  MEBA DISPUTED THIS, AS WELL AS THE
CONTENTION RELATING TO THE THIRD ENGINEER ON THE FRANKLIN D. ROOSEVELT,
CLAIMING THAT THESE ENGINEERS WERE QUALIFIED AND ON THESE SHIPS
NORMALLY WOULD HAVE SOMEONE TO SUPERVISE." 
..END :









W.M.C.A., INC., V. SIMON 370 U.S. 190 


NO. 836.  DECIDED JUNE 11, 1962.  - REPORTED BELOW:  202 F. SUPP. 741. 


A THREE-JUDGE FEDERAL DISTRICT COURT DISMISSED A COMPLAINT UNDER THE
CIVIL RIGHTS ACT AND 28 U.S.C. SEC. 1343 ALLEGING VIOLATIONS OF THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT BY NEW
YORK STATE'S CONSTITUTIONAL AND STATUTORY PROVISIONS GOVERNING
APPORTIONMENT OF STATE SENATE AND ASSEMBLY DISTRICTS.  HELD:  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR FURTHER CONSIDERATION
IN THE LIGHT OF BAKER V. CARR, 369 U.S. 186.  PP. 190-191. 

W.M.C.A., INC., ET AL. V. SIMON, SECRETARY OF STATE OF NEW YORK, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

ON JANUARY 11, 1962, THE THREE-JUDGE DISTRICT COURT DISMISSED THE
COMPLAINT ALLEGING VIOLATION OF THE CONSTITUTION OF THE UNITED STATES
BY NEW YORK STATE'S CONSTITUTIONAL AND STATUTORY PROVISIONS GOVERNING
APPORTIONMENT OF STATE SENATE AND ASSEMBLY DISTRICTS.  202 F. SUPP.
741.  THE THREE JUDGES FILED SEPARATE OPINIONS, NO TWO OF WHICH
SUPPORTED THE JUDGMENT OF DISMISSAL ON IDENTICAL GROUNDS.  ONE OPINION
EXPRESSED THE VIEW THAT THE ACTION SHOULD BE DISMISSED FOR FAILURE TO
STATE A CLAIM, WANT OF JUSTICIABILITY, AND WANT OF EQUITY.  202 F.
SUPP., AT 742.  A SECOND OPINION EXPRESSED THE VIEW THAT SINCE THE
APPORTIONMENT WAS NOT ALLEGED TO EFFECT A DISCRIMINATION AGAINST ANY
PARTICULAR RACIAL OR RELIGIOUS GROUP, BUT MERELY A GEOGRAPHICAL
DISCRIMINATION, JURISDICTION SHOULD BE EXERCISED, BUT ONLY TO DISMISS. 
202 F. SUPP., AT 754.  A THIRD OPINION RESTED ON THE GROUND THAT THE
ACTION WAS NOT JUSTICIABLE AND EXPRESSED NO VIEW ON THE MERITS.  202 F.
SUPP., AT 755. 

ON MARCH 26, 1962, WE HELD IN BAKER V. CARR, 369 U.S. 186, THAT A
JUSTICIABLE FEDERAL CONSTITUTIONAL CAUSE OF ACTION IS STATED BY A CLAIM
OF ARBITRARY IMPAIRMENT OF VOTES BY MEANS OF INVIDIOUSLY DISCRIMINATORY
GEOGRAPHIC CLASSIFICATION.  OUR WELL-ESTABLISHED PRACTICE OF A REMAND
FOR CONSIDERATION IN THE LIGHT OF A SUBSEQUENT DECISION THEREFORE
APPLIES.  AS IN SCHOLLE V. HARE, 369 U.S. 429, WE BELIEVE THAT THE
COURT BELOW SHOULD BE THE FIRST TO CONSIDER THE MERITS OF THE FEDERAL
CONSTITUTIONAL CLAIM, FREE FROM ANY DOUBTS AS TO ITS JUSTICIABILITY AND
AS TO THE MERITS OF ALLEGED ARBITRARY AND INVIDIOUS GEOGRAPHICAL
DISCRIMINATION.  THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR
FURTHER CONSIDERATION IN THE LIGHT OF BAKER V. CARR, SUPRA. 

THE MOTIONS TO SUBSTITUTE PAUL R. SCREVANE IN THE PLACE OF ABE STARK,
AND EUGENE H. NICKERSON IN THE PLACE OF A. HOLLY PATTERSON, AS PARTIES
APPELLEE, ARE GRANTED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, DISSENTING. 

FOR REASONS GIVEN IN MY DISSENT IN SCHOLLE V. HARE, 369 U.S. 429,
430, I WOULD AFFIRM, OR, FAILING THAT, NOTE PROBABLE JURISDICTION.  THE
COMPLAINT IN THIS CASE SQUARELY TENDERS THE ISSUE AS TO WHETHER THE
EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION IS VIOLATED BY A
STATE APPORTIONMENT OF SEATS IN BOTH ITS LEGISLATIVE CHAMBERS ON OTHER
THAN A SUBSTANTIALLY PROPORTIONAL POPULATIONAL BASIS.  AS IN SCHOLLE,
THE LOWER COURT CONSIDERED THIS CLAIM ON THE MERITS AND REJECTED IT BY
HOLDING THAT THE EXISTING DISTRIBUTION OF NEW YORK STATE LEGISLATORS
(FOUNDED ON PRINCIPLES EMBODIED IN THE STATE CONSTITUTION SINCE 1894)
VIOLATED NO FEDERAL CONSTITUTIONAL RIGHT. 

I READ THE OPINIONS BELOW QUITE DIFFERENTLY THAN DOES THE COURT.  THE
FIRST OPINION IS THAT OF JUDGE LEVET, WHICH THE COURT STATES "EXPRESSED
THE VIEW THAT THE ACTION SHOULD BE DISMISSED FOR FAILURE TO STATE A
CLAIM, WANT OF JUSTICIABILITY, AND WANT OF EQUITY."  AFTER FIRST
HOLDING THAT THE COURT HAD JURISDICTION OVER THE ACTION, JUDGE LEVET
HELD THAT "THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN
BE GRANTED" (202 F. SUPP., AT 753), IN THAT "THERE IS NO AUTHORITATIVE
INDICATION THAT THE RELATIVE WEIGHT ACCORDED INDIVIDUAL VOTES IN
ELECTIONS FOR THE STATE LEGISLATURE, PURSUANT TO THE APPLICABLE
PROVISIONS OF THE STATE CONSTITUTION, IS PROTECTED BY THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  IN FACT, THE CONTRARY
SEEMS TRUE."  ID., AT 749.  HE THEN PROCEEDED FURTHER:  "IF THE
INSUFFICIENCY OF THE COMPLAINT BE NOT ADEQUATE TO REQUIRE DISMISSAL OF
THE COMPLAINT, AS I BELIEVE IT IS, THEN THE WANT OF EQUITY IN THE
RELIEF SOUGHT, OR, TO VIEW IT SLIGHTLY DIFFERENTLY, WANT OF
JUSTICIABILITY, CLEARLY DEMANDS DISMISSAL."  ID., AT 753. 

THE SECOND OPINION IS THAT OF JUDGE RYAN, DESCRIBED BY THE COURT AS
EXPRESSING "THE VIEW THAT SINCE THE APPORTIONMENT WAS NOT ALLEGED TO
EFFECT A DISCRIMINATION AGAINST ANY PARTICULAR RACIAL OR RELIGIOUS
GROUP, BUT MERELY A GEOGRAPHICAL DISCRIMINATION, JURISDICTION SHOULD BE
EXERCISED, BUT ONLY TO DISMISS."  ACTUALLY, HOWEVER, JUDGE RYAN AGREED
WITH JUDGE LEVET, STATING AT THE OUTSET OF HIS SEPARATE OPINION:  "I
CONCUR WITH JUDGE LEVET AND THE CONCLUSIONS HE HAS REACHED THAT THIS
COURT HAS JURISDICTION TO ENTERTAIN THIS SUIT AND THAT THE COMPLAINT
SHOULD BE DISMISSED ON ITS MERITS."  ID., AT 754.  HE WENT ON TO STATE:
"THE COMPLAINT IS THAT THE METHOD OF APPORTIONMENT GIVES RISE SOLELY
TO TERRITORIAL OR PURELY GEOGRAPHICAL DISCRIMINATION WHICH GROSSLY
DILUTES THE VOTE OF URBAN DWELLERS.  JUDICIAL INTERFERENCE BY FEDERAL
COURTS WITH THE POWER OF THE STATE TO CREATE INTERNAL POLITICAL OR
GEOGRAPHICAL BOUNDARIES AFFECTING THE RIGHT OF SUFFRAGE CAN NOT BE
SUPPORTED BY MERE TERRITORIAL DISCRIMINATION AND NOTHING MORE."  IBID.
WHILE THIS LANGUAGE, TAKEN IN CONNECTION WITH SOME OF THAT WHICH
PRECEDES IT (IBID.), MIGHT LEND ITSELF TO THE VIEW THAT JUDGE RYAN WAS
THINKING ONLY IN TERMS OF "JUSTICIABILITY," I DO NOT THINK IT IS
PROPERLY SO READ.  JUDGE RYAN NOWHERE SUGGESTS THAT HE DISAGREES WITH
JUDGE LEVET'S FURTHER, AND DISTINCTIVE, GROUND FOR DISMISSAL, THAT THE
COMPLAINT FAILED TO STATE A FEDERAL CONSTITUTIONAL CLAIM. 

THE THIRD OPINION, THAT OF JUDGE WATERMAN, DID, AS THE COURT SAYS,
TURN ONLY ON "NON-JUSTICIABILITY."  JUDGE WATERMAN DECLINED TO "EXPRESS
ANY VIEWS WITH REFERENCE TO WHETHER THE PRESENT LEGISLATIVE
APPORTIONMENT IN THE STATE OF NEW YORK VIOLATES THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION," ID., AT 755, THEREBY
EVINCING HIS UNDERSTANDING THAT HIS COLLEAGUES HAD ALSO RESTED DECISION
ON A GROUND WHICH HE FOUND UNNECESSARY TO REACH. 

FOR ME, IT THUS SEEMS CLEAR THAT TWO MEMBERS OF THE THREE-JUDGE COURT
DISMISSED THE ACTION ON TWO ALTERNATIVE GROUNDS:  (1) THAT THE MATTER
WAS NOT "JUSTICIABLE"; (2) THAT THE COMPLAINT STATED NO CAUSE OF
ACTION, IN THAT THE "TERRITORIAL DISCRIMINATION" EXISTING UNDER NEW
YORK'S LEGISLATIVE APPORTIONMENT DID NOT GIVE RISE TO A CLAIM
COGNIZABLE UNDER THE FOURTEENTH AMENDMENT.  THE LATTER GROUND WAS
PRECISELY THE ISSUE THAT WAS AVOIDED IN BAKER V. CARR, 369 U.S. 186,
330 (DISSENTING OPINION); SEE ALSO ID., AT 265 (CONCURRING OPINION). 

IT IS UNFORTUNATE THAT THE COURT, NOW FOR THE SECOND TIME, HAS
REMANDED A CASE OF THIS KIND WITHOUT FIRST COMING TO GRIPS ITSELF WITH
THIS BASIC CONSTITUTIONAL ISSUE, OR EVEN INDICATING ANY GUIDELINES FOR
DECISION IN THE LOWER COURTS.  BAKER V. CARR, SUPRA, OF COURSE DID
NEITHER. 
..END :











GALLEGOS V. COLORADO 370 U.S. 49 


NO. 475.  ARGUED APRIL 9, 1962.  - DECIDED JUNE 4, 1962.  - 145 COLO.
53, 358 P.2D 1028, REVERSED. 


PETITIONER, A 14-YEAR-OLD BOY, AND ANOTHER JUVENILE FOLLOWED AN
ELDERLY MAN TO A HOTEL, GOT INTO HIS ROOM ON A RUSE, ASSAULTED AND
OVERPOWERED HIM, STOLE $13 FROM HIS POCKETS AND FLED.  PICKED UP 12
DAYS LATER BY POLICE, PETITIONER IMMEDIATELY ADMITTED THE ASSAULT AND
ROBBERY.  OVER TWO WEEKS LATER, HE WAS CONVICTED IN A JUVENILE COURT OF
"ASSAULT TO INJURE" AND WAS COMMITTED TO THE STATE INDUSTRIAL SCHOOL
FOR AN INDETERMINATE PERIOD.  SUBSEQUENTLY THE VICTIM DIED, AND
PETITIONER WAS CHARGED WITH FIRST DEGREE MURDER.  AT HIS TRIAL IN A
STATE COURT, A JURY FOUND HIM GUILTY.  THE CRUCIAL EVIDENCE INTRODUCED
AT THE TRIAL WAS A FORMAL CONFESSION WHICH PETITIONER HAD SIGNED BEFORE
HIS VICTIM DIED, BEFORE PETITIONER HAD BEEN BROUGHT BEFORE A JUDGE, AND
AFTER HE HAD BEEN HELD FOR FIVE DAYS WITHOUT SEEING A LAWYER, PARENT,
OR OTHER FRIENDLY ADULT, ALTHOUGH HIS MOTHER HAD ATTEMPTED TO SEE HIM. 
HELD:  ON THE TOTALITY OF THE CIRCUMSTANCES IN THIS CASE, THE FORMAL
CONFESSION ON WHICH PETITIONER'S CONVICTION MAY HAVE RESTED WAS
OBTAINED IN VIOLATION OF DUE PROCESS, AND THE JUDGMENT SUSTAINING HIS
CONVICTION IS REVERSED.  PP. 49-55. 

GALLEGOS V. COLORADO. 

CERTIORARI TO THE SUPREME COURT OF COLORADO. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A CHILD OF 14, AND ANOTHER JUVENILE FOLLOWED AN ELDERLY
MAN TO A HOTEL, GOT INTO HIS ROOM ON A RUSE, ASSAULTED HIM, OVERPOWERED
HIM, STOLE $13 FROM HIS POCKETS, AND FLED.  ALL THIS HAPPENED ON
DECEMBER 20, 1958.  PETITIONER WAS PICKED UP BY THE POLICE ON JANUARY
1, 1959, AND IMMEDIATELY ADMITTED THE ASSAULT AND ROBBERY.  AT THAT
TIME, HOWEVER, THE VICTIM OF THE ROBBERY WAS STILL ALIVE, THOUGH
HOSPITALIZED.  HE DIED ON JANUARY 26, 1959, AND FORTHWITH AN
INFORMATION CHARGING FIRST DEGREE MURDER WAS RETURNED AGAINST
PETITIONER.  A JURY FOUND HIM GUILTY, THE CRUCIAL EVIDENCE INTRODUCED
AT THE TRIAL BEING A FORMAL CONFESSION WHICH HE SIGNED ON JANUARY 7,
1959, AFTER HE HAD BEEN HELD FOR FIVE DAYS DURING WHICH TIME HE SAW NO
LAWYER, PARENT, OR OTHER FRIENDLY ADULT.  THE SUPREME COURT OF COLORADO
AFFIRMED THE JUDGMENT OF CONVICTION.  145 COLO. 53, 358 P.2D 1028.  WE
GRANTED THE PETITION FOR CERTIORARI, 368 U.S. 815. 

AFTER PETITIONER'S ARREST ON JANUARY 1, THE FOLLOWING EVENTS TOOK
PLACE.  HIS MOTHER TRIED TO SEE HIM ON FRIDAY, JANUARY 2, BUT
PERMISSION WAS DENIED, THE REASON GIVEN BEING THAT VISITING HOURS WERE
FROM 7 P.M. TO 8 P.M. ON MONDAY AND THURSDAY.  FROM JANUARY 1 THROUGH
JANUARY 7, PETITIONER WAS IN JUVENILE HALL, WHERE HE WAS KEPT IN
SECURITY, THOUGH HE WAS ALLOWED TO EAT WITH THE OTHER INMATES.  HE WAS
EXAMINED BY THE POLICE IN JUVENILE HALL JANUARY 2, AND MADE A
CONFESSION WHICH AN OFFICER RECORDED IN LONGHAND.  ON JANUARY 3, 1959,
A COMPLAINT WAS FILED AGAINST HIM IN THE JUVENILE COURT BY THE
INVESTIGATING DETECTIVES. 

THE STATE IN ITS BRIEF CALLS THIS PRELIMINARY PROCEDURE IN JUVENILE
HALL BEING "BOOKED IN."  AS NOTED, PETITIONER SIGNED A FULL AND FORMAL
CONFESSION ON JANUARY 7.  THE TRIAL IN THE JUVENILE COURT TOOK PLACE
JANUARY 16 ON A PETITION DATED JANUARY 13 CONTAINING A CHARGE OF
"ASSAULT TO INJURE."  HE WAS COMMITTED TO THE STATE INDUSTRIAL SCHOOL
FOR AN INDETERMINATE PERIOD.  THEREAFTER, AS NOTED ABOVE, THE VICTIM OF
THE ROBBERY DIED AND THE MURDER TRIAL WAS HELD. 

CONFESSIONS OBTAINED BY "SECRET INQUISITORIAL PROCESSES" (CHAMBERS V.
FLORIDA, 309 U.S. 227, 237) ARE SUSPECT, SINCE SUCH PROCEDURES ARE
CONDUCIVE TO THE USE OF PHYSICAL AND PSYCHOLOGICAL PRESSURES. 
CHAMBERS V. FLORIDA, SUPRA; LEYRA V. DENNO, 347 U.S. 556.  THE REASON
THAT DUE PROCESS, AS USED IN THE FOURTEENTH AMENDMENT, CONDEMNS THE
OBTAINING OF CONFESSIONS IN THAT MANNER IS A COMPOUND OF TWO
INFLUENCES.  FIRST IS THE PROCEDURAL REQUIREMENT STATED IN CHAMBERS V.
FLORIDA, SUPRA, 236-237: 

"FROM THE POPULAR HATRED AND ABHORRENCE OF ILLEGAL CONFINEMENT,
TORTURE AND EXTORTION OF CONFESSIONS OF VIOLATIONS OF THE 'LAW OF THE
LAND' EVOLVED THE FUNDAMENTAL IDEA THAT NO MAN'S LIFE, LIBERTY OR
PROPERTY BE FORFEITED AS CRIMINAL PUNISHMENT FOR VIOLATION OF THAT LAW
UNTIL THERE HAD BEEN A CHARGE FAIRLY MADE AND FAIRLY TRIED IN A PUBLIC
TRIBUNAL FREE OF PREJUDICE, PASSION, EXCITEMENT, AND TYRANNICAL POWER. 
THUS, AS ASSURANCE AGAINST ANCIENT EVILS, OUR COUNTRY, IN ORDER TO
PRESERVE 'THE BLESSINGS OF LIBERTY,' WROTE INTO ITS BASIC LAW THE
REQUIREMENT, AMONG OTHERS, THAT THE FORFEITURE OF THE LIVES, LIBERTIES
OR PROPERTY OF PEOPLE ACCUSED OF CRIME CAN ONLY FOLLOW IF PROCEDURAL
SAFEGUARDS OF DUE PROCESS HAVE BEEN OBEYED." 

WE EMPHASIZED THIS POINT IN ASHCRAFT V. TENNESSEE, 322 U.S. 143, 152,
WHERE WE SAID THAT "ALWAYS EVIDENCE CONCERNING THE INNER DETAILS OF
SECRET INQUISITIONS IS WEIGHTED AGAINST AN ACCUSED  ...  ." 

SECOND IS THE ELEMENT OF COMPULSION WHICH IS CONDEMNED BY THE FIFTH
AMENDMENT.  CHIEF JUSTICE HUGHES IN BROWN V. MISSISSIPPI, 297 U.S. 278,
285, EMPHASIZED THAT INGREDIENT OF DUE PROCESS.  AFTER NOTING THAT THE
COURT HAD HELD THAT THE EXEMPTION FROM COMPULSORY SELF-INCRIMINATION IN
THE COURTS OF THE STATES IS NOT GUARANTEED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, HE WENT ON TO SAY: 

"BUT THE QUESTION OF THE RIGHT OF THE STATE TO WITHDRAW THE PRIVILEGE
AGAINST SELF-INCRIMINATION IS NOT HERE INVOLVED.  THE COMPULSION TO
WHICH THE QUOTED STATEMENTS REFER IS THAT OF THE PROCESSES OF JUSTICE
BY WHICH THE ACCUSED MAY BE CALLED AS A WITNESS AND REQUIRED TO
TESTIFY.  COMPULSION BY TORTURE TO EXTORT A CONFESSION IS A DIFFERENT
MATTER."  AND SEE BRENNAN, THE BILL OF RIGHTS AND THE STATES, 36
N.Y.U.L. REV. 761. 

WE REITERATED THAT VIEW IN ASHCRAFT V. TENNESSEE, SUPRA, WHERE WE
HELD THAT THE PRINCIPLE OF BRAM V. UNITED STATES, 168 U.S. 532, 562
563, WAS APPLICABLE TO STATE PROCEEDINGS.  322 U.S., AT 154, N. 9.  WE
SAID: 

"WE THINK A SITUATION SUCH AS THAT HERE SHOWN BY UNCONTRADICTED
EVIDENCE IS SO INHERENTLY COERCIVE THAT ITS VERY EXISTENCE IS
IRRECONCILABLE WITH THE POSSESSION OF MENTAL FREEDOM BY A LONE SUSPECT
AGAINST WHOM ITS FULL COERCIVE FORCE IS BROUGHT TO BEAR.  IT IS
INCONCEIVABLE THAT ANY COURT OF JUSTICE IN THE LAND, CONDUCTED AS OUR
COURTS ARE, OPEN TO THE PUBLIC, WOULD PERMIT PROSECUTORS SERVING IN
RELAYS TO KEEP A DEFENDANT WITNESS UNDER CONTINUOUS CROSS-EXAMINATION
FOR THIRTY-SIX HOURS WITHOUT REST OR SLEEP IN AN EFFORT TO EXTRACT A
'VOLUNTARY' CONFESSION.  NOR CAN WE, CONSISTENTLY WITH CONSTITUTIONAL
DUE PROCESS OF LAW, HOLD VOLUNTARY A CONFESSION WHERE PROSECUTORS DO
THE SAME THING AWAY FROM THE RESTRAINING INFLUENCES OF A PUBLIC TRIAL
IN AN OPEN COURT ROOM."  322 U.S., AT 154. 

THE APPLICATION OF THESE PRINCIPLES INVOLVES CLOSE SCRUTINY OF THE
FACTS OF INDIVIDUAL CASES.  THE LENGTH OF THE QUESTIONING (SPANO V. NEW
YORK, 360 U.S. 315), THE USE OF FEAR TO BREAK A SUSPECT (MALINSKI V.
NEW YORK, 324 U.S. 401), THE YOUTH OF THE ACCUSED (HALEY V. OHIO, 332
U.S. 596) ARE ILLUSTRATIVE OF THE CIRCUMSTANCES ON WHICH CASES OF THIS
KIND TURN.  THE YOUTH OF THE SUSPECT WAS THE CRUCIAL FACTOR IN HALEY V.
OHIO, SUPRA, AT 599-600: 

"WHAT TRANSPIRED WOULD MAKE US PAUSE FOR CAREFUL INQUIRY IF A MATURE
MAN WERE INVOLVED.  AND WHEN, AS HERE, A MERE CHILD - AN EASY VICTIM OF
THE LAW - IS BEFORE US, SPECIAL CARE IN SCRUTINIZING THE RECORD MUST BE
USED.  AGE 15 IS A TENDER AND DIFFICULT AGE FOR A BOY OF ANY RACE.  HE
CANNOT BE JUDGED BY THE MORE EXACTING STANDARDS OF MATURITY.  THAT
WHICH WOULD LEAVE A MAN COLD AND UNIMPRESSED CAN OVERAWE AND OVERWHELM
A LAD IN HIS EARLY TEENS.  THIS IS THE PERIOD OF GREAT INSTABILITY
WHICH THE CRISIS OF ADOLESCENCE PRODUCES.  A 15-YEAR-OLD LAD,
QUESTIONED THROUGH THE DEAD OF NIGHT BY RELAYS OF POLICE, IS A READY
VICTIM OF THE INQUISITION.  MATURE MEN POSSIBLY MIGHT STAND THE ORDEAL
FROM MIDNIGHT TO 5 A.M.  BUT WE CANNOT BELIEVE THAT A LAD OF TENDER
YEARS IS A MATCH FOR THE POLICE IN SUCH A CONTEST.  HE NEEDS COUNSEL
AND SUPPORT IF HE IS NOT TO BECOME THE VICTIM FIRST OF FEAR, THEN OF
PANIC.  HE NEEDS SOMEONE ON WHOM TO LEAN LEST THE OVERPOWERING PRESENCE
OF THE LAW, AS HE KNOWS IT, CRUSH HIM.  NO FRIEND STOOD AT THE SIDE OF
THIS 15-YEAR-OLD BOY AS THE POLICE, WORKING IN RELAYS, QUESTIONED HIM
HOUR AFTER HOUR, FROM MIDNIGHT UNTIL DAWN.  NO LAWYER STOOD GUARD TO
MAKE SURE THAT THE POLICE WENT SO FAR AND NO FARTHER, TO SEE TO IT THAT
THEY STOPPED SHORT OF THE POINT WHERE HE BECAME THE VICTIM OF
COERCION.  NO COUNSEL OR FRIEND WAS CALLED DURING THE CRITICAL HOURS OF
QUESTIONING.  A PHOTOGRAPHER WAS ADMITTED ONCE THIS LAD BROKE AND
CONFESSED.  BUT NOT EVEN A GESTURE TOWARDS GETTING A LAWYER FOR HIM WAS
EVER MADE." 

THE FACT THAT PETITIONER WAS ONLY 14 YEARS OLD PUTS THIS CASE ON THE
SAME FOOTING AS HALEY V. OHIO, SUPRA.  THERE WAS HERE NO EVIDENCE OF
PROLONGED QUESTIONING.  BUT THE FIVE-DAY DETENTION - DURING WHICH TIME
THE BOY'S MOTHER UNSUCCESSFULLY TRIED TO SEE HIM AND HE WAS CUT OFF
FROM CONTACT WITH ANY LAWYER OR ADULT ADVISOR - GIVES THE CASE AN
OMINOUS CAST.  THE PROSECUTION SAYS THAT THE BOY WAS ADVISED OF HIS
RIGHT TO COUNSEL, BUT THAT HE DID NOT ASK EITHER FOR A LAWYER OR FOR
HIS PARENTS.  BUT A 14-YEAR-OLD BOY, NO MATTER HOW SOPHISTICATED, IS
UNLIKELY TO HAVE ANY CONCEPTION OF WHAT WILL CONFRONT HIM WHEN HE IS
MADE ACCESSIBLE ONLY TO THE POLICE.  THAT IS TO SAY, WE DEAL WITH A
PERSON WHO IS NOT EQUAL TO THE POLICE IN KNOWLEDGE AND UNDERSTANDING OF
THE CONSEQUENCES OF THE QUESTIONS AND ANSWERS BEING RECORDED AND WHO IS
UNABLE TO KNOW HOW TO PROTECT HIS OWN INTERESTS OR HOW TO GET THE
BENEFITS OF HIS CONSTITUTIONAL RIGHTS. 

THE PROSECUTION SAYS THAT THE YOUTH AND IMMATURITY OF THE PETITIONER
AND THE FIVE-DAY DETENTION ARE IRRELEVANT, BECAUSE THE BASIC
INGREDIENTS OF THE CONFESSION CAME TUMBLING OUT AS SOON AS HE WAS
ARRESTED.  BUT IF WE TOOK THAT POSITION, IT WOULD, WITH ALL DEFERENCE,
BE IN CALLOUS DISREGARD OF THIS BOY'S CONSTITUTIONAL RIGHTS.  HE CANNOT
BE COMPARED WITH AN ADULT IN FULL POSSESSION OF HIS SENSES AND
KNOWLEDGEABLE OF THE CONSEQUENCES OF HIS ADMISSIONS.  HE WOULD HAVE NO
WAY OF KNOWING WHAT THE CONSEQUENCES OF HIS CONFESSION WERE WITHOUT
ADVICE AS TO HIS RIGHTS - FROM SOMEONE CONCERNED WITH SECURING HIM
THOSE RIGHTS - AND WITHOUT THE AID OF MORE MATURE JUDGMENT AS TO THE
STEPS HE SHOULD TAKE IN THE PREDICAMENT IN WHICH HE FOUND HIMSELF.  A
LAWYER OR AN ADULT RELATIVE OR FRIEND COULD HAVE GIVEN THE PETITIONER
THE PROTECTION WHICH HIS OWN IMMATURITY COULD NOT.  ADULT ADVICE WOULD
HAVE PUT HIM ON A LESS UNEQUAL FOOTING WITH HIS INTERROGATORS.  WITHOUT
SOME ADULT PROTECTION AGAINST THIS INEQUALITY, A 14-YEAR-OLD BOY WOULD
NOT BE ABLE TO KNOW, LET ALONE ASSERT, SUCH CONSTITUTIONAL RIGHTS AS HE
HAD.  TO ALLOW THIS CONVICTION TO STAND WOULD, IN EFFECT, BE TO TREAT
HIM AS IF HE HAD NO CONSTITUTIONAL RIGHTS. 

THERE IS NO GUIDE TO THE DECISION OF CASES SUCH AS THIS, EXCEPT THE
TOTALITY OF CIRCUMSTANCES THAT BEAR ON THE TWO FACTORS WE HAVE
MENTIONED.  THE YOUTH OF THE PETITIONER, THE LONG DETENTION, THE
FAILURE TO SEND FOR HIS PARENTS, THE FAILURE IMMEDIATELY TO BRING HIM
BEFORE THE JUDGE OF THE JUVENILE COURT, THE FAILURE TO SEE TO IT THAT
HE HAD THE ADVICE OF A LAWYER OR A FRIEND - ALL THESE COMBINE TO MAKE
US CONCLUDE THAT THE FORMAL CONFESSION ON WHICH THIS CONVICTION MAY
HAVE RESTED (SEE PAYNE V. ARKANSAS, 356 U.S. 560, 568) WAS OBTAINED IN
VIOLATION OF DUE PROCESS.  REVERSED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

AS CHIEF JUSTICE JOHN MARSHALL SAID A CENTURY AND A QUARTER AGO, "IF
COURTS WERE PERMITTED TO INDULGE THEIR SYMPATHIES, A CASE BETTER
CALCULATED TO EXCITE THEM CAN SCARCELY BE IMAGINED."  CHEROKEE NATION
V. GEORGIA, 5 PET. 1, 15 (1831).  A 14-YEAR-OLD BOY STANDS CONVICTED OF
MURDER AND HAS BEEN SENTENCED TO IMPRISONMENT FOR LIFE.  BUT, AS MR.
JUSTICE PATERSON SAID IN PENHALLOW V. DOANE'S ADMR., 3 DALL.  54, 88-89
(1795), "MOTIVES OF COMMISERATION, FROM WHATEVER SOURCE THEY FLOW, MUST
NOT MINGLE IN THE ADMINISTRATION OF JUSTICE." 

THE COURT SETS ASIDE THE CONVICTION HERE ON DUE PROCESS GROUNDS,
FINDING THAT THE FORMAL CONFESSION MADE BY PETITIONER ON JANUARY 7 WAS
OBTAINED BY "SECRET INQUISITORIAL PROCESSES" AND OTHER FORMS OF
COMPULSION.  IN SO DOING IT TURNS ITS BACK ON THE SPONTANEOUS ORAL
ADMISSIONS MADE BY A PETITIONER AT THE TIME OF ARREST ON JANUARY 1, AS
WELL AS A DETAILED CONFESSION MADE THE NEXT DAY, ALL LONG BEFORE THE
FORMAL CONFESSION WAS GIVEN FIVE DAYS LATER.  MOREOVER, I FIND NOTHING
IN THE RECORD THAT SUGGESTS ANY "SECRET INQUISITORIAL PROCESSES" WERE
USED OR ANY COMPULSION WAS EXERTED UPON PETITIONER EVEN DURING THAT
LONGER PERIOD.  WITH DUE DEFERENCE I CANNOT SEE HOW THE COURT CONCLUDES
FROM THE RECORD THAT PETITIONER WAS "CUT OFF FROM CONTACT WITH ANY
LAWYER OR ADULT ADVISOR" AND "MADE ACCESSIBLE ONLY TO THE POLICE," THAT
THERE WAS A FAILURE TO BRING HIM BEFORE THE JUVENILE JUDGE IN THE
MANNER REQUIRED IN JUVENILE DELINQUENCY CASES, OR THAT GALLEGOS' CASE
IS IN ANYWISE ON THE SAME FOOTING WITH HALEY V. OHIO, 332 U.S. 596
(1948), OR THE OTHER CASES CITED BY THE MAJORITY. 

AS THE COURT SAYS, "THE TOTALITY OF CIRCUMSTANCES" IS THE ONLY GUIDE
WE HAVE IN CONFESSION CASES.  HOWEVER, IN VIEW OF THE HOP, SKIP, AND
JUMP FASHION IN WHICH THE COURT DEALS WITH THEM HERE, I BELIEVE IT IS
FIRST NECESSARY TO DETAIL THE FACTS. 

THE RECORD THROUGH THE TESTIMONY OF OFFICER CHISM, A SPECIAL JUVENILE
OFFICER, SHOWS THAT ON THURSDAY EVENING, JANUARY 1, HE WAS
INVESTIGATING THE ASSAULT ON MR. SMITH, (FN1) AN 80-YEAR-OLD MAN, WHEN
HE NOTICED THREE BOYS WHO APPEARED TO FIT THE DESCRIPTION FURNISHED HIM
OF THE ONES INVOLVED.  THE THREE, WHO WERE SITTING ON THE CURB OUTSIDE
OF DUTCHMAN'S INN, WERE THE GALLEGOS BROTHERS:  PETITIONER ROBERT (14),
CHARLES (12), AND RICHARD (8).  THE OFFICER, WHO WAS ALONE AND IN
STREET CLOTHES, STOPPED HIS CAR ACROSS THE STREET FROM THE INN.  HE
APPROACHED THE BOYS, TOLD THEM HE WAS A POLICE OFFICER, AND ASKED THEM
TO COME OVER AND SIT IN HIS CAR.  THEY DID SO AND THE OFFICER ASKED
THEM ABOUT THE SMITH ASSAULT.  RICHARD ORALLY CONFESSED, AND THE
PETITIONER "ADMITTED HE HAD A PART IN IT."  OFFICER CHISM THEN TOOK THE
BOYS TO JUVENILE HALL WHERE THE PETITIONER AGAIN ADMITTED HIS
PARTICIPATION, AS DID HIS YOUNGEST BROTHER, RICHARD.  BOTH STATED THAT
THE THIRD BROTHER, CHARLES, HAD NOTHING TO DO WITH THE MATTER, BUT THAT
THEIR COUSIN, EDDIE MARTINEZ, HAD ACCOMPANIED THEM.  CHARLES, HAVING
BEEN CLEARED OF ANY INVOLVEMENT IN THE ASSAULT, WAS TAKEN HOME THAT
VERY EVENING BY OFFICER CHISM, WHO TOLD MRS. GALLEGOS THAT THE
PETITIONER AND RICHARD WERE BEING HELD AT JUVENILE HALL AND THAT
VISITING HOURS WERE ON MONDAY AND THURSDAY EVENINGS.  HE ALSO INFORMED
HER OF HER SONS' RIGHT TO COUNSEL.    THE NEXT EVENING, JANUARY 2,
OFFICER CHISM TALKED TO THE PETITIONER, RICHARD, AND MARTINEZ, WHO BY
THIS TIME WAS ALSO AT JUVENILE HALL.  AS THE OFFICER TOOK NOTES, (FN2)
PETITIONER AGAIN DESCRIBED HIS PARTICIPATION IN THE ASSAULT ON MR.
SMITH IN THE FOLLOWING MANNER AS NARRATED BY OFFICER CHISM AT THE
TRIAL: 

"(AFTER HIS PARTICIPATION IN AN ASSAULT ON A MR. KRUHD,) HE PROCEEDED
DOWN TO 18TH AND CURTIS STREET WHERE HE WAS SHINING SHOES  ...  .  UPON
SEEING AN OLD MAN, WHO WAS LATER IDENTIFIED AS ROBERT F. SMITH, HE
FOLLOWED HIM TO A HOTEL ON 18TH STREET  ...  .  HE  ...  WAS WITH HIS
YOUNGER BROTHER, RICHARD, AND ONE EDDIE MARTINEZ  ...  .  THEY FOLLOWED
THE OLD MAN TO THE HOTEL AND RICHARD STAYED DOWNSTAIRS AND WATCHED OUT
FOR COPS.  HE AND EDDIE WENT UPSTAIRS AND THEY LOST TRACK OF THE OLD
MAN; THEY ASKED SEVERAL IF THEY HAD SEEN HIS GRANDFATHER COME IN, THAT
HE HAD JUST COME IN AND WAS DRUNK  ...  AND A MAN TOLD  ...  THEM HE
JUST WENT DOWN THE HALLWAY, AND UPON KNOCKING ON THE DOOR A MAN OPENED
THE DOOR AND HE TOLD HIM HE WAS LOOKING FOR HIS GRANDFATHER, THAT HE
WAS DRUNK, AND THE MAN TOLD HIM THE OLD MAN NEXT DOOR HAD JUST COME IN.
HE SAID UPON KNOCKING ON THE OTHER DOOR SOMEONE TOLD HIM TO COME IN,
THAT HE OPENED THE DOOR AND HE SEEN IT WAS THE MAN HE WAS LOOKING FOR
...  .  AT THAT TIME EDDIE MARTINEZ ASKED THE OLD MAN FOR A DRINK OF
WATER AND WHEN THE OLD MAN BROUGHT THE WATER EDDIE GRABBED HIM AND HE,
ROBERT, HIT THE OLD MAN ABOUT THE HEAD AND FACE WITH A SHOE BRUSH; THAT
WHEN THE OLD MAN FELL TO THE FLOOR HE TOOK A KNIFE AND HELD IT TO THE
OLD MAN'S THROAT AND TOOK HIS BILLFOLD OUT OF HIS BACK POCKET  ...  .
THEY ALL LEFT THEN AND WENT TO THE TWENTY-THIRD STREET VIADUCT WHERE HE
GAVE EDDIE $3.00 AND HE KEPT $10.00 TO SPLIT BETWEEN HIM AND RICHARD
AND THEY THEN WENT HOME  ...  ." 

THAT SAME EVENING, JANUARY 2, AT 11:30 P.M., MRS. GALLEGOS ATTEMPTED
TO VISIT HER TWO SONS AT JUVENILE HALL BUT WAS AGAIN INFORMED THAT
VISITING HOURS WERE 7 P.M. TO 8 P.M. ON MONDAYS AND THURSDAYS.  AT THE
TRIAL SHE TESTIFIED THAT SHE MADE NO EFFORT TO SEE HER SONS ON THE NEXT
VISITING DAY, WHICH WAS MONDAY, BUT WAITED UNTIL THURSDAY, JANUARY 8. 

THE RECORD SHOWS THAT ON JANUARY 3 THE OFFICER FILED IN THE JUVENILE
COURT A DETAILED REPORT OF THE ARREST AND PETITIONER'S CONFESSIONS
TOGETHER WITH A PETITION CHARGING PETITIONER WITH JUVENILE
DELINQUENCY.  THIS WAS SUPPLEMENTED ON THE 5TH BY THE REPORT OF THE
KRUHD ASSAULT AND KRUHD'S IDENTIFICATION OF PETITIONER AND THE OTHER
BOYS.  THE OFFICER FOLLOWED, AS HE WAS OBLIGED TO DO, THE JUVENILE
COURT LAW OF COLORADO WHICH PROVIDES FOR COMMITMENT IN JUVENILE HALL,
REPORT TO THE JUVENILE JUDGE WHO SUPERVISES THE HALL AND ITS INMATES,
AND THE FILING OF A DELINQUENCY PETITION. 

FOR THE FIRST FEW DAYS AT JUVENILE HALL PETITIONER WAS PLACED IN
"SECURITY," WHICH MEANT THAT HE DID NOT PARTICIPATE IN THE SCHOOL
PROGRAM.  THE UNCONTRADICTED TESTIMONY OF THE HALL SUPERINTENDENT WAS
THAT THE DECISION TO KEEP THE PETITIONER OUT OF THE PROGRAM WAS MADE BY
HIS UNIT SUPERVISOR IN ORDER TO SIZE UP THE BOY, WHO HAD BEEN CHARGED
WITH A SERIOUS CRIME, BEFORE PLACING HIM IN THE REGULAR ACTIVITIES WITH
THE OTHERS.  DURING THIS TIME HE HAD ALL HIS MEALS WITH THE OTHER BOYS
AND CONVERSED WITH HIS YOUNGER BROTHER WHO WAS HELD IN ANOTHER WARD. 
ALTHOUGH THE PETITIONER DID NOT TESTIFY AT THE TRIAL IN THE PRESENCE OF
THE JURY, HE ADMITTED AT A HEARING HELD TO DETERMINE THE ADMISSIBILITY
OF THE FORMAL CONFESSION THAT HE WAS ONLY QUESTIONED THREE TIMES
BETWEEN JANUARY 1 AND JANUARY 7 AND THAT NO THREATS OR PHYSICAL
COERCION WAS USED AT ANY TIME. 

ON JANUARY 7 THE POLICE DEPARTMENT SENT A MAN OVER TO FORMALIZE THE
EARLIER CONFESSIONS.  OFFICER MILLER, WHO TOOK THE CONFESSION,
TESTIFIED THAT HE TOLD PETITIONER OF THE POSSIBILITY OF A MURDER
CHARGE, WARNED HIM THAT HE DID NOT HAVE TO MAKE A STATEMENT, AND TOLD
HIM THAT HE COULD HAVE HIS PARENTS AND AN ATTORNEY PRESENT IF HE
DESIRED.  PETITIONER INDICATED THAT HE DID NOT SO DESIRE, AND A FORMAL
CONFESSION WAS TAKEN WHICH WAS SUBSTANTIALLY IDENTICAL TO THE STATEMENT
GIVEN ON JANUARY 2, AS RELATED BY OFFICER CHISM IN HIS TESTIMONY.  THE
CONFESSION WAS TYPED, AND OFFICER CHISM TOOK IT OVER TO JUVENILE HALL
FOR PETITIONER TO SIGN.  HE TESTIFIED THAT PETITIONER READ IT ALOUD
BEFORE SIGNING IT.  ABOVE HIS SIGNATURE WAS THE ADMISSION THAT THE
CONFESSION WAS MADE VOLUNTARILY AND UPON WARNING THAT IT COULD BE USED
AGAINST HIM. 

ON JANUARY 16 THE THREE ASSAILANTS WERE COMMITTED TO THE INDUSTRIAL
SCHOOL BY THE JUVENILE COURT.  UPON THE DEATH OF MR. SMITH, PETITIONER
ON INFORMATION WAS TRIED FOR MURDER.  AS NOTED ABOVE, THE EVIDENCE
INCLUDED TESTIMONY OF HIS ADMISSIONS UPON ARREST AND HIS CONFESSION ON
JANUARY 2, AS WELL AS THE FORMAL CONFESSION OF JANUARY 7.  THESE WERE
ADMITTED AFTER INDEPENDENT FINDINGS OF VOLUNTARINESS BY THE TRIAL JUDGE
AND JURY.  THE LATTER WAS INSTRUCTED THAT IN DETERMINING WHETHER
PETITIONER FREELY AND VOLUNTARILY MADE THE CONFESSIONS IT WAS TO TAKE
INTO ACCOUNT "THE AGE, MATURITY, PHYSICAL AND MENTAL CONDITION OF THE
DEFENDANT, THE LENGTH OF HIS CONFINEMENT, HIS OPPORTUNITY OR LACK OF
OPPORTUNITY TO SEEK FRIENDLY OR PROFESSIONAL AID, THE ADVICE OR LACK OF
ADVICE GIVEN HIM AS TO HIS CONSTITUTIONAL RIGHTS, AND ALL OTHER FACTS
AND CIRCUMSTANCES SURROUNDING SUCH CONFESSION." 

BEFORE DISCUSSING THE ADMISSIBILITY OF THE FORMAL CONFESSION OF
JANUARY 7, I MUST FIRST COMMENT ON THE COURT'S TREATMENT OF THE EARLIER
CONFESSIONS, VIZ., THOSE OF JANUARY 1 AND 2.  ALTHOUGH THE COURT
CAREFULLY REFRAINS FROM HOLDING THESE CONFESSIONS INADMISSIBLE UNDER
DUE PROCESS STANDARDS, ITS INNUENDO THAT THEY WERE ACQUIRED "IN CALLOUS
DISREGARD OF THIS BOY'S CONSTITUTIONAL RIGHTS" CANNOT PASS UNEXPOSED. 
IN REGARD TO THESE CONFESSIONS, THE TEST OF VOLUNTARINESS AS EVIDENCED
BY THE "TOTALITY OF CIRCUMSTANCES" LEADS THE COURT NOT TO QUESTION
THEM.  HERE THERE WERE NO "SECRET INQUISITORIAL PROCESSES" OR
COMPULSION OF ANY KIND AS THE COURT ENVISIONS IN RELATION TO THE
CONFESSION OF JANUARY 7.  THE COURT'S ONLY CRITICISM IS THAT PETITIONER
"WOULD HAVE NO WAY OF KNOWING WHAT THE CONSEQUENCES OF HIS CONFESSION
WERE WITHOUT ADVICE AS TO HIS RIGHTS  ...  ."  (FN3)  THE TRUTH OF THE
MATTER IS THAT THE SINGULAR CIRCUMSTANCE POINTED OUT BY THE COURT HAS
NEVER BEEN THOUGHT TO RENDER A CONFESSION INADMISSIBLE.  SEE CULOMBE V.
CONNECTICUT, 367 U.S. 568, 577-602 (1961)(OPINION OF MR. JUSTICE
FRANKFURTER). 

THE COURT IS OVERTURNING PETITIONER'S CONVICTION BECAUSE IT FLOWS IN
PART FROM THE FORMAL CONFESSION OF JANUARY 7.  I CANNOT DRAW FROM THIS
RECORD A CONCLUSION THAT THIS CONFESSION WAS INVOLUNTARY.  PETITIONER
FREELY ADMITTED IN TESTIMONY BEFORE THE TRIAL JUDGE THAT HE WAS NOT
THREATENED OR PHYSICALLY COERCED IN ANY WAY AND THAT HE WAS NOT
INTENSIVELY QUESTIONED.  MOREOVER, PRIOR TO THE FORMAL CONFESSION HE
WAS TOLD THAT HE DID NOT HAVE TO MAKE A STATEMENT AND WARNED OF THE
POSSIBILITY OF A MURDER CHARGE, AS WELL AS INFORMED THAT HE COULD HAVE
AN ATTORNEY AND HIS PARENTS PRESENT.  OFFICER CHISM'S TESTIMONY AS TO
THIS MATTER WAS DOCUMENTED BY THE CONFESSION ITSELF WHICH RECITES THAT
IT WAS VOLUNTARY AND GIVEN AFTER NOTICE THAT IT COULD BE USED AGAINST
HIM. 

PETITIONER WAS NEVER PLACED IN SOLITARY CONFINEMENT, AS MIGHT BE
IMPLIED FROM THE COURT'S OPINION, BUT WAS MERELY KEPT OUT OF THE
ORGANIZED ACTIVITIES UNTIL THE UNIT SUPERVISOR COULD DETERMINE WHETHER
HIS FULL-TIME PARTICIPATION WOULD HAVE AN ADVERSE EFFECT ON OTHERS. 
AND EVEN UNDER THIS SCHEDULE HE HAD ALL HIS MEALS WITH THE OTHER BOYS
AND CONVERSED FREELY WITH THEM. 

NOR WAS PETITIONER "CUT OFF" FROM CONTACT WITH LAWYERS OR ADULTS AND
"MADE ACCESSIBLE ONLY TO THE POLICE."  HIS MOTHER MADE NO EFFORT TO
OBTAIN AN ATTORNEY ALTHOUGH INFORMED OF THE RIGHT TO DO SO. (FN4)  AND
SHE WAS NOT PREVENTED FROM SEEING HIM BUT WAS MERELY ASKED TO COMPLY
WITH REASONABLE VISITING REGULATIONS.  SHE WAS INFORMED ON TWO
OCCASIONS THAT SHE COULD SEE HIM MONDAY, JANUARY 5, TWO DAYS BEFORE THE
FORMAL CONFESSION WHICH THE COURT FINDS INVALID, BUT SHE DID NOT
ATTEMPT TO DO SO.  AND PETITIONER HIMSELF PASSED UP THE OFFER TO CONFER
WITH HIS PARENTS AND AN ATTORNEY BEFORE MAKING THIS CONFESSION. 

IN SUPPORT OF THE ABOVE FACTORS INDICATING THAT THE CONFESSION OF
JANUARY 7 WAS VOLUNTARY IS THE UNDENIABLE FACT THAT PETITIONER ADMITTED
ON JANUARY 1 HIS PARTICIPATION IN THE ASSAULT AND CONFESSED IN DETAIL
THERETO ON JANUARY 2.  BOTH OF THESE STATEMENTS OCCURRED PRIOR TO THE
EVENTS WHICH THE COURT FINDS TO HAVE COERCED THE CONFESSION OF JANUARY
7.  I AM HARD PRESSED TO UNDERSTAND HOW ONE COULD CONCLUDE THAT THE
POLICE FOUND IT EXPEDIENT TO COERCE THE JANUARY 7 CONFESSION OR THAT
THE EVENTS DISCUSSED BY THE COURT RENDERED IT INVOLUNTARY WHEN FIVE
DAYS EARLIER A SUBSTANTIALLY IDENTICAL CONFESSION WAS MADE IN THE
ABSENCE OF THE "COERCIVE" EVENTS. 

AS I HAVE NOTED, IN LIGHT OF THESE FACTS I CANNOT CONCLUDE THAT THIS
CONFESSION WAS INVOLUNTARY.  A FORTIORI, I COULD NOT DETERMINE, AS THE
COURT MUST, THAT SO CLEAR A CASE OF COERCION WAS MADE OUT THAT THREE
PRIOR FINDINGS THAT THE CONFESSION WAS VOLUNTARY - INCLUDING ONE BY THE
JURY WHICH WAS SPECIFICALLY INSTRUCTED TO CONSIDER EACH OF THE FACTORS
RELIED ON BY THE MAJORITY - CAN BE REVERSED.   I HAVE CAREFULLY
EXAMINED THE CASES UPON WHICH THE COURT RELIES AND CAN FIND NOT ONE
AMONG THEM WHICH IN THE LEAST IS APPOSITE.  THERE WERE NO "SECRET
INQUISITORIAL PROCESSES" AS IN CHAMBERS V. FLORIDA, 309 U.S. 227
(1940).  THERE CHAMBERS, A NEGRO, FOR A WEEK AFTER ARREST WAS KEPT
INCOMMUNICADO, MOVED FROM ONE JAIL TO ANOTHER, CONSTANTLY QUESTIONED,
AND WAS FINALLY SUBJECTED TO AROUND-THE-CLOCK INTERROGATION BY A RELAY
OF FROM 4 TO 10 PERSONS.  NOR DOES LEYRA V. DENNO, 347 U.S. 556 (1954),
IN ANY WAY RESEMBLE THIS CASE.  THERE THE ACCUSED HAD REQUESTED A
DOCTOR IN ORDER TO GET RELIEF FROM A PAINFUL SINUS ATTACK.  THE POLICE
BROUGHT IN A PSYCHIATRIST WHO BY SUBTLE MEANS INDUCED HIM TO CONFESS
AFTER AN HOUR OR TWO OF QUESTIONING.  THE STATE COURT FOUND THIS
CONFESSION INVALID BECAUSE OF MENTAL COERCION.  HOWEVER, AT THE SECOND
TRIAL SUBSEQUENT CONFESSIONS WERE ADMITTED IN EVIDENCE.  THIS COURT
HELD THAT THE PSYCHIATRIC INDUCEMENT USED TO EXTRACT THE FIRST
CONFESSION POISONED AND INVALIDATED THE SUBSEQUENT ONES.  LIKEWISE, THE
REFERENCE OF THE COURT TO CHIEF JUSTICE HUGHES' STATEMENT IN BROWN V.
MISSISSIPPI, 297 U.S. 278, 285 (1936), CONCERNING THE "ELEMENT OF
COMPULSION WHICH IS CONDEMNED BY THE FIFTH AMENDMENT," IS MISLEADING
AND INAPPOSITE.  "THE QUESTION IN THIS CASE," HE SAID IN BROWN WITH HIS
USUAL CONCISENESS, "IS WHETHER CONVICTIONS, WHICH REST SOLELY UPON
CONFESSIONS SHOWN TO HAVE BEEN EXTORTED BY OFFICERS OF THE STATE BY
BRUTALITY AND VIOLENCE, ARE CONSISTENT WITH THE DUE PROCESS OF LAW
REQUIRED BY THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED
STATES."  ID., AT 279.  BROWN AND THE OTHER SUSPECTS, THE CHIEF JUSTICE
POINTED OUT, HAD BEEN STRIPPED, LAID OVER CHAIRS AND BEATEN WITH A
LEATHER STRAP WITH BUCKLES UNTIL THEIR BACKS WERE CUT TO PIECES AND
THEY CONFESSED.  NOR DOES THE HOLDING IN ASHCRAFT V. TENNESSEE, 322
U.S. 143 (1944), HAVE ANY BEARING ON THIS CASE.  IT ALSO INVOLVED
"PROSECUTORS SERVING IN RELAYS" KEEPING A PERSON UNDER CONTINUOUS CROSS
EXAMINATION FOR 36 HOURS WITHOUT REST OR SLEEP.  NOR CAN IT, IN MY
VIEW, BE SAID THAT SPANO V. NEW YORK, 360 U.S. 315 (1959), HAS ANY
WEIGHT UNDER THE FACTS HERE.  IN THAT CASE CONTINUOUS, ALL-NIGHT CROSS
EXAMINATION BY FOUR OFFICERS, THE REFUSAL OF REPEATED REQUESTS TO
CONSULT HIS COUNSEL, TOGETHER WITH THE USE OF AN OLD FRIEND WHO WAS A
FLEDGLING POLICE OFFICER AS BAIT TO BREAK DOWN THE ACCUSED, LED US TO
INVALIDATE THE CONFESSION.  AND IN MALINSKI V. NEW YORK, 324 U.S. 401
(1945), THE ACCUSED WAS STRIPPED OF HIS CLOTHING AND HIS REQUEST FOR
COUNSEL IGNORED WHILE HE REMAINED IN SOLITARY CONFINEMENT AND WITHOUT
FOOD UNTIL, LED TO BELIEVE THAT HE WAS GOING TO GET A "SHELLACKING," HE
CONFESSED FROM APPARENT FEAR OF HIS JAILORS.  FINALLY, I SEE NO
SIMILARITY IN HALEY V. OHIO, 332 U.S. 596 (1948), THE LAST CASE CITED
BY THE COURT.  THERE A 15-YEAR-OLD BOY NEVER BEFORE IN TROUBLE WAS
QUESTIONED "THROUGH THE DEAD OF NIGHT" BY FIVE TO SIX POLICEMEN IN
RELAYS OF ONE OR TWO EACH AND THEN ONLY WAS LED TO CONFESS BY BEING
SHOWN ALLEGED STATEMENTS OF TWO CONFEDERATES INCRIMINATING HIM.  HALEY
DOES NOT INDICATE THAT YOUTH ALONE IS SUFFICIENT TO RENDER A JUVENILE'S
CONFESSION INADMISSIBLE.  HERE WE DO NOT HAVE ANY OF THE FACTORS WHICH
LED TO THE COMMENT:  "WHAT TRANSPIRED WOULD MAKE US PAUSE FOR CAREFUL
INQUIRY IF A MATURE MAN WERE INVOLVED."  ID., AT 599. 

I REGRET THAT WITHOUT SUPPORT FROM PRIOR CASES AND ON THE BASIS OF
INFERENCE AND CONJECTURE NOT SUPPORTED IN THE RECORD THE COURT UPSETS
THIS CONVICTION. 

FN1  AT THIS TIME SMITH WAS STILL ALIVE.  HE DIED ON JANUARY 26, AND
THE MURDER PROSECUTION HERE AT ISSUE FOLLOWED. 

FN2  THESE NOTES WERE SIGNED BY PETITIONER. 

FN3  THERE IS NO BASIS FOR THE COURT'S SUGGESTION THAT THE OFFICERS
IMPROPERLY FAILED TO BRING PETITIONER BEFORE THE JUVENILE JUDGE WHEN
THEY FIRST ARRESTED HIM.  THE PROCEDURE USED IN DENVER OF FILING A
REPORT WITH THE JUVENILE JUDGE AND TEMPORARILY PLACING THE OFFENDER IN
JUVENILE HALL PENDING A HEARING IS IN KEEPING WITH ADVANCED PROCEDURES
BEING FOLLOWED WITH REFERENCE TO JUVENILE OFFENDERS THROUGHOUT THE
UNITED STATES.    FN4  INDEED, NO ATTORNEY WAS OBTAINED FOR
PETITIONER'S TRIAL IN THE JUVENILE COURT. 
..END :

















UNITED STATES V. DAVIS 370 U.S. 65 


NO. 190.  ARGUED MARCH 28, 1962 - DECIDED JUNE 4, 1962* - 152 CT. CL.
805, 287 F.2D 168, AFFIRMED IN PART AND REVERSED IN PART. 

*TOGETHER WITH NO. 268, DAVIS ET AL. V. UNITED STATES, ALSO ON
CERTIORARI TO THE SAME COURT. 


PURSUANT TO A PROPERTY SETTLEMENT AGREEMENT LATER INCORPORATED IN A
DIVORCE DECREE, A TAXPAYER IN DELAWARE TRANSFERRED TO HIS FORMER WIFE,
IN RETURN FOR THE RELEASE OF HER MARITAL CLAIMS, CERTAIN SHARES OF
STOCK WHICH HAD APPRECIATED IN MARKET VALUE AND WHICH WERE SOLELY HIS
PROPERTY SUBJECT TO CERTAIN INCHOATE MARITAL RIGHTS OF THE WIFE,
INCLUDING A RIGHT OF INTESTATE SUCCESSION AND A RIGHT UPON DIVORCE TO A
"REASONABLE" SHARE OF THE HUSBAND'S PROPERTY.  HE ALSO PAID THE FEES OF
HER ATTORNEY FOR ADVICE GIVEN TO HER ABOUT THE TAX CONSEQUENCES OF THE
PROPERTY SETTLEMENT.  HELD: 

1.  IN THESE CIRCUMSTANCES AND IN VIEW OF PERTINENT PROVISIONS OF
DELAWARE LAW, THIS TRANSFER OF STOCK IS TO BE CONSIDERED UNDER THE
INTERNAL REVENUE CODE OF 1954 NOT A NONTAXABLE DIVISION OF PROPERTY
BETWEEN CO-OWNERS BUT A TAXABLE TRANSFER OF PROPERTY IN SATISFACTION OF
A LEGAL OBLIGATION.   PP. 68-71. 

2.  ON THE RECORD IN THIS CASE, THE COMMISSIONER'S ASSESSMENT OF A
TAXABLE GAIN BASED UPON THE VALUE OF THE STOCK AT THE DATE OF ITS
TRANSFER HAS NOT BEEN SHOWN TO BE ERRONEOUS.  PP. 71-74. 

3.  THE AMOUNT PAID BY THE HUSBAND TO HIS FORMER WIFE'S ATTORNEY AS A
FEE FOR ADVICE GIVEN TO HER ABOUT THE TAX CONSEQUENCES OF THE PROPERTY
SETTLEMENT WAS NOT DEDUCTIBLE BY THE HUSBAND UNDER SEC. 212(3) OF THE
INTERNAL REVENUE CODE OF 1954.  PP. 74-75. 

UNITED STATES V. DAVIS ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE THE TAX CONSEQUENCES OF A TRANSFER OF APPRECIATED
PROPERTY BY THOMAS CRAWLEY DAVIS (FN1) TO HIS FORMER WIFE PURSUANT TO A
PROPERTY SETTLEMENT AGREEMENT EXECUTED PRIOR TO DIVORCE, AS WELL AS THE
DEDUCTIBILITY OF HIS PAYMENT OF HER LEGAL EXPENSES IN CONNECTION
THEREWITH.  THE COURT OF CLAIMS UPSET THE COMMISSIONER'S DETERMINATION
THAT THERE WAS TAXABLE GAIN ON THE TRANSFER BUT UPHELD HIS RULING THAT
THE FEES PAID THE WIFE'S ATTORNEY WERE NOT DEDUCTIBLE.  152 CT. CL.
805, 287 F.2D 168.  WE GRANTED CERTIORARI ON A CONFLICT IN THE COURT OF
APPEALS AND THE COURT OF CLAIMS ON THE TAXABILITY OF SUCH TRANSFERS. 
(FN2)  368 U.S. 813.  WE HAVE DECIDED THAT THE TAXPAYER DID HAVE A
TAXABLE GAIN ON THE TRANSFER AND THAT THE WIFE'S ATTORNEY'S FEES WERE
NOT DEDUCTIBLE. 

IN 1954 THE TAXPAYER AND HIS THEN WIFE MADE A VOLUNTARY PROPERTY
SETTLEMENT AND SEPARATION AGREEMENT CALLING FOR SUPPORT PAYMENTS TO THE
WIFE AND MINOR CHILD IN ADDITION TO THE TRANSFER OF CERTAIN PERSONAL
PROPERTY TO THE WIFE.  UNDER DELAWARE LAW ALL THE PROPERTY TRANSFERRED
WAS THAT OF THE TAXPAYER, SUBJECT TO CERTAIN STATUTORY MARITAL RIGHTS
OF THE WIFE INCLUDING A RIGHT OF INTESTATE SUCCESSION AND A RIGHT UPON
DIVORCE TO A SHARE OF THE HUSBAND'S PROPERTY.  (FN3)  SPECIFICALLY AS A
"DIVISION IN SETTLEMENT OF THEIR PROPERTY" THE TAXPAYER AGREED TO
TRANSFER TO HIS WIFE, INTER ALIA, 1,000 SHARES OF STOCK IN THE E.I. DU
PONT DE NEMOURS & CO. THE THEN MRS. DAVIS AGREED TO ACCEPT THIS
DIVISION "IN FULL SETTLEMENT AND SATISFACTION OF ANY AND ALL CLAIMS AND
RIGHTS AGAINST THE HUSBAND WHATSOEVER (INCLUDING BUT NOT BY WAY OF
LIMITATION, DOWER AND ALL RIGHTS UNDER THE LAWS OF TESTACY AND
INTESTACY)  ...  ."  PURSUANT TO THE ABOVE AGREEMENT WHICH HAD BEEN
INCORPORATED INTO THE DIVORCE DECREE, ONE-HALF OF THIS STOCK WAS
DELIVERED IN THE TAX YEAR INVOLVED, 1955, AND THE BALANCE THEREAFTER. 
DAVIS' COST BASIS FOR THE 1955 TRANSFER WAS $74,775.37, AND THE FAIR
MARKET VALUE OF THE 500 SHARES THERE TRANSFERRED WAS $82,250.  THE
TAXPAYER ALSO AGREED ORALLY TO PAY THE WIFE'S LEGAL EXPENSES, AND IN
1955 HE MADE PAYMENTS TO THE WIFE'S ATTORNEY, INCLUDING $2,500 FOR
SERVICES CONCERNING TAX MATTERS RELATIVE TO THE PROPERTY SETTLEMENT. 

           I. 

THE DETERMINATION OF THE INCOME TAX CONSEQUENCES OF THE STOCK
TRANSFER DESCRIBED ABOVE IS BASICALLY A TWO-STEP ANALYSIS:  (1)  WAS
THE TRANSACTION A TAXABLE EVENT?  (2)  IF SO, HOW MUCH TAXABLE GAIN
RESULTED THEREFROM?  ORIGINALLY THE TAX COURT (AT THAT TIME THE BOARD
OF TAX APPEALS) HELD THAT THE ACCRETION TO PROPERTY TRANSFERRED
PURSUANT TO A DIVORCE SETTLEMENT COULD NOT BE TAXED AS CAPITAL GAIN TO
THE TRANSFEROR BECAUSE THE AMOUNT REALIZED BY THE SATISFACTION OF THE
HUSBAND'S MARITAL OBLIGATIONS WAS INDETERMINABLE AND BECAUSE, EVEN IF
SUCH BENEFIT WERE ASCERTAINABLE, THE TRANSACTION WAS A NONTAXABLE
DIVISION OF PROPERTY.  MESTA V. COMMISSIONER, 42 B.T.A. 933 (1940);
HALLIWELL V. COMMISSIONER, 44 B.T.A. 740 (1941).  HOWEVER, UPON BEING
REVERSED IN QUICK SUCCESSION BY THE COURTS OF APPEALS OF THE THIRD AND
SECOND CIRCUITS, COMMISSIONER V. MESTA, 123 F.2D 986 (C.A. 3D CIR.
1941); COMMISSIONER V. HALLIWELL, 131 F.2D 642 (C.A.2D CIR. 1942), THE
TAX COURT ACCEPTED THE POSITION OF THESE COURTS AND HAS CONTINUED TO
APPLY THESE VIEWS IN APPROPRIATE CASES SINCE THAT TIME, HALL V.
COMMISSIONER, 9 T.C. 53 (1947); PATINO V. COMMISSIONER, 13 T.C. 816
(1949); ESTATE OF STOUFFER V. COMMISSIONER, 30 T.C. 1244 (1958); KING
V. COMMISSIONER, 31 T.C. 108 (1958); MARSHMAN V. COMMISSIONER, 31 T.C.
269 (1958).  IN MESTA AND HALLIWELL THE COURTS OF APPEALS REASONED THAT
THE ACCRETION TO THE PROPERTY WAS "REALIZED" BY THE TRANSFER AND THAT
THIS GAIN COULD BE MEASURED ON THE ASSUMPTION THAT THE RELINQUISHED
MARITAL RIGHTS WERE EQUAL IN VALUE TO THE PROPERTY TRANSFERRED.  THE
MATTER WAS CONSIDERED SETTLED UNTIL THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT, IN REVERSING THE TAX COURT, RULED THAT, ALTHOUGH SUCH A
TRANSFER MIGHT BE A TAXABLE EVENT, THE GAIN REALIZED THEREBY COULD NOT
BE DETERMINED BECAUSE OF THE IMPOSSIBILITY OF EVALUATING THE FAIR
MARKET VALUE OF THE WIFE'S MARITAL RIGHTS.  COMMISSIONER V. MARSHMAN,
279 F.2D 27 (1960).  IN SO HOLDING THAT COURT SPECIFICALLY REJECTED THE
ARGUMENT THAT THESE RIGHTS COULD BE PRESUMED TO BE EQUAL IN VALUE TO
THE PROPERTY TRANSFERRED FOR THEIR RELEASE.  THIS IS ESSENTIALLY THE
POSITION TAKEN BY THE COURT OF CLAIMS IN THE INSTANT CASE. 

                                            II. 

WE NOW TURN TO THE THRESHOLD QUESTION OF WHETHER THE TRANSFER IN
ISSUE WAS AN APPROPRIATE OCCASION FOR TAXING THE ACCRETION TO THE
STOCK.  THERE CAN BE NO DOUBT THAT CONGRESS, AS EVIDENCED BY ITS
INCLUSIVE DEFINITION OF INCOME SUBJECT TO TAXATION, I.E., "ALL INCOME
FROM WHATEVER SOURCE DERIVED, INCLUDING  ...  GAINS DERIVED FROM
DEALINGS IN PROPERTY," (FN4) INTENDED THAT THE ECONOMIC GROWTH OF THIS
STOCK BE TAXED.  THE PROBLEM CONFRONTING US IS SIMPLY WHEN IS SUCH
ACCRETION TO BE TAXED.  SHOULD THE ECONOMIC GAIN BE PRESENTLY ASSESSED
AGAINST TAXPAYER, OR SHOULD THIS ASSESSMENT AWAIT A SUBSEQUENT TRANSFER
OF THE PROPERTY BY THE WIFE?  THE CONTROLLING STATUTORY LANGUAGE, WHICH
PROVIDES THAT GAINS FROM DEALINGS IN PROPERTY ARE TO BE TAXED UPON
"SALE OR OTHER DISPOSITION," (FN5) IS TOO GENERAL TO INCLUDE OR EXCLUDE
CONCLUSIVELY THE TRANSACTION PRESENTLY IN ISSUE.  RECOGNIZING THIS, THE
GOVERNMENT AND THE TAXPAYER ARGUE BY ANALOGY WITH TRANSACTIONS MORE
EASILY CLASSIFIED AS WITHIN OR WITHOUT THE AMBIENT OF TAXABLE EVENTS. 
THE TAXPAYER ASSERTS THAT THE PRESENT DISPOSITION IS COMPARABLE TO A
NONTAXABLE DIVISION OF PROPERTY BETWEEN TWO CO-OWNERS, (FN6) WHILE THE
GOVERNMENT CONTENDS IT MORE RESEMBLES A TAXABLE TRANSFER OF PROPERTY IN
EXCHANGE FOR THE RELEASE OF AN INDEPENDENT LEGAL OBLIGATION.  NEITHER
DISPUTES THE VALIDITY OF THE OTHER'S STARTING POINT. 

IN SUPPORT OF HIS ANALOGY THE TAXPAYER ARGUES THAT TO DRAW A
DISTINCTION BETWEEN A WIFE'S INTEREST IN THE PROPERTY OF HER HUSBAND IN
A COMMON-LAW JURISDICTION SUCH AS DELAWARE AND THE PROPERTY INTEREST OF
A WIFE IN A TYPICAL COMMUNITY PROPERTY JURISDICTION WOULD COMMIT A
DOUBLE SIN; FOR SUCH DIFFERENTIATION WOULD DEPEND UPON "ELUSIVE AND
SUBTLE CASUISTRIES WHICH  ...  POSSESS NO RELEVANCE FOR TAX PURPOSES,"
HELVERING V. HALLOCK, 309 U.S. 106, 118 (1940), AND WOULD CREATE
DISPARITIES BETWEEN COMMON-LAW AND COMMUNITY PROPERTY JURISDICTIONS IN
CONTRADICTION TO CONGRESS' GENERAL POLICY OF EQUALITY BETWEEN THE TWO. 
THE TAXPAYER'S ANALOGY, HOWEVER, STUMBLES ON ITS OWN PREMISE, FOR THE
INCHOATE RIGHTS GRANTED A WIFE IN HER HUSBAND'S PROPERTY BY THE
DELAWARE LAW DO NOT EVEN REMOTELY REACH THE DIGNITY OF CO-OWNERSHIP. 
THE WIFE HAS NO INTEREST - PASSIVE OR ACTIVE - OVER THE MANAGEMENT OR
DISPOSITION OF HER HUSBAND'S PERSONAL PROPERTY.  HER RIGHTS ARE NOT
DESCENDABLE, AND SHE MUST SURVIVE HIM TO SHARE IN HIS INTESTATE
ESTATE.  UPON DISSOLUTION OF THE MARRIAGE SHE SHARES IN THE PROPERTY
ONLY TO SUCH EXTENT AS THE COURT DEEMS "REASONABLE."  13 DEL. CODE ANN.
SEC. 1531(A).  WHAT IS "REASONABLE" MIGHT BE ASCERTAINED INDEPENDENTLY
OF THE EXTENT OF THE HUSBAND'S PROPERTY BY SUCH CRITERIA AS THE WIFE'S
FINANCIAL CONDITION, HER NEEDS IN RELATION TO HER ACCUSTOMED STATION IN
LIFE, HER AGE AND HEALTH, THE NUMBER OF CHILDREN AND THEIR AGES, AND
THE EARNING CAPACITY OF THE HUSBAND.  SEE, E.G., BERES V. BERES, 52
DEL. 133, 154 A.2D 384 (1959). 

THIS IS NOT TO SAY IT WOULD BE COMPLETELY ILLOGICAL TO CONSIDER THE
SHEARING OFF OF THE WIFE'S RIGHTS IN HER HUSBAND'S PROPERTY AS A
DIVISION OF THAT PROPERTY, BUT WE BELIEVE THE CONTRARY TO BE THE MORE
REASONABLE CONSTRUCTION.  REGARDLESS OF THE TAGS, DELAWARE SEEMS ONLY
TO PLACE A BURDEN ON THE HUSBAND'S PROPERTY RATHER THAN TO MAKE THE
WIFE A PART OWNER THEREOF.  IN THE PRESENT CONTEXT THE RIGHTS OF
SUCCESSION AND REASONABLE SHARE DO NOT DIFFER SIGNIFICANTLY FROM THE
HUSBAND'S OBLIGATIONS OF SUPPORT AND ALIMONY.  THEY ALL PARTAKE MORE OF
A PERSONAL LIABILITY OF THE HUSBAND THAN A PROPERTY INTEREST OF THE
WIFE.  THE EFFECTUATION OF THESE MARITAL RIGHTS MAY ULTIMATELY RESULT
IN THE OWNERSHIP OF SOME OF THE HUSBAND'S PROPERTY AS IT DID HERE, BUT
CERTAINLY THIS HAPPENSTANCE DOES NOT EQUATE THE TRANSACTION WITH A
DIVISION OF PROPERTY BY CO-OWNERS.  ALTHOUGH ADMITTEDLY SUCH A VIEW MAY
PERMIT DIFFERENT TAX TREATMENT AMONG THE SEVERAL STATES, THIS COURT IN
THE PAST HAS NOT IGNORED THE DIFFERING EFFECTS ON THE FEDERAL TAXING
SCHEME OF SUBSTANTIVE DIFFERENCES BETWEEN COMMUNITY PROPERTY AND COMMON
LAW SYSTEMS.  E.G., POE V. SEABORN, 282 U.S. 101 (1930).  TO BE SURE
CONGRESS HAS SEEN FIT TO ALLEVIATE THIS DISPARITY IN MANY AREAS, E.G.,
REVENUE ACT OF 1948, 62 STAT. 110, BUT IN OTHER AREAS THE FACTS OF LIFE
ARE STILL WITH US. 

OUR INTERPRETATION OF THE GENERAL STATUTORY LANGUAGE IS FORTIFIED BY
THE LONG-STANDING ADMINISTRATIVE PRACTICE AS SOUNDED AND FORMALIZED BY
THE SETTLED STATE OF LAW IN THE LOWER COURTS.  THE COMMISSIONER'S
POSITION WAS ADOPTED IN THE EARLY 40'S BY THE SECOND AND THIRD CIRCUITS
AND BY 1947 THE TAX COURT HAD ACQUIESCED IN THIS VIEW.  THIS SETTLED
RULE WAS NOT DISTURBED BY THE COURT OF APPEALS FOR THE SIXTH CIRCUIT IN
1960 OR THE COURT OF CLAIMS IN THE INSTANT CASE, FOR THESE LATTER
COURTS IN HOLDING THE GAIN INDETERMINABLE ASSUMED THAT THE TRANSACTION
WAS OTHERWISE A TAXABLE EVENT.  SUCH UNANIMITY OF VIEWS IN SUPPORT OF A
POSITION REPRESENTING A REASONABLE CONSTRUCTION OF AN AMBIGIOUS STATUTE
WILL NOT LIGHTLY BE PUT ASIDE.  IT IS QUITE POSSIBLE THAT THIS
NOTORIOUS CONSTRUCTION WAS RELIED UPON BY NUMEROUS TAXPAYERS AS WELL AS
THE CONGRESS ITSELF, WHICH NOT ONLY REFRAINED FROM MAKING ANY CHANGES
IN THE STATUTORY LANGUAGE DURING MORE THAN A SCORE OF YEARS BUT RE
ENACTED THIS SAME LANGUAGE IN 1954. 

                               III. 

HAVING DETERMINED THAT THE TRANSACTION WAS A TAXABLE EVENT, WE NOW
TURN TO THE POINT ON WHICH THE COURT OF CLAIMS BALKED, VIZ., THE
MEASUREMENT OF THE TAXABLE GAIN REALIZED BY THE TAXPAYER.  THE CODE
DEFINES THE TAXABLE GAIN FROM THE SALE OR DISPOSITION OF PROPERTY AS
BEING THE "EXCESS OF THE AMOUNT REALIZED THEREFROM OVER THE ADJUSTED
BASIS  ...  ."  I.R.C. (1954) SEC. 1001(A).  THE "AMOUNT REALIZED" IS
FURTHER DEFINED AS "THE SUM OF ANY MONEY RECEIVED PLUS THE FAIR MARKET
VALUE OF THE PROPERTY (OTHER THAN MONEY) RECEIVED."  I.R.C. (1954) SEC.
1001(B).  IN THE INSTANT CASE THE "PROPERTY RECEIVED" WAS THE RELEASE
OF THE WIFE'S INCHOATE MARITAL RIGHTS.  THE COURT OF CLAIMS, FOLLOWING
THE COURT OF APPEALS FOR THE SIXTH CIRCUIT, FOUND THAT THERE WAS NO WAY
TO COMPUTE THE FAIR MARKET VALUE OF THESE MARITAL RIGHTS AND THAT IT
WAS THUS IMPOSSIBLE TO DETERMINE THE TAXABLE GAIN REALIZED BY THE
TAXPAYER.  WE BELIEVE THIS CONCLUSION WAS ERRONEOUS. 

IT MUST BE ASSUMED, WE THINK, THAT THE PARTIES ACTED AT ARM'S LENGTH
AND THAT THEY JUDGED THE MARITAL RIGHTS TO BE EQUAL IN VALUE TO THE
PROPERTY FOR WHICH THEY WERE EXCHANGED.  THERE WAS NO EVIDENCE TO THE
CONTRARY HERE.  ABSENT A READILY ASCERTAINABLE VALUE IT IS ACCEPTED
PRACTICE WHERE PROPERTY IS EXCHANGED TO HOLD, AS DID THE COURT OF
CLAIMS IN PHILADELPHIA PARK AMUSEMENT CO. V. UNITED STATES, 130 CT. CL.
166, 172, 126 F. SUPP. 184, 189 (1954), THAT THE VALUES "OF THE TWO
PROPERTIES EXCHANGED IN AN ARMS-LENGTH TRANSACTION ARE EITHER EQUAL IN
FACT, OR ARE PRESUMED TO BE EQUAL."  ACCORD, UNITED STATES V. GENERAL
SHOE CORP., 282 F.2D 9 (C.A. 6TH CIR. 1960); INTERNATIONAL FREIGHTING
CORP. V. COMMISSIONER, 135 F.2D 310 (C.A.2D CIR. 1943).  TO BE SURE
THERE IS MUCH TO BE SAID OF THE ARGUMENT THAT SUCH AN ASSUMPTION IS
WEAKENED BY THE EMOTION, TENSION AND PRACTICAL NECESSITIES INVOLVED IN
DIVORCE NEGOTIATIONS AND THE PROPERTY SETTLEMENTS ARISING THEREFROM. 
HOWEVER, ONCE IT IS RECOGNIZED THAT THE TRANSFER WAS A TAXABLE EVENT,
IT IS MORE CONSISTENT WITH THE GENERAL PURPOSE AND SCHEME OF THE TAXING
STATUTES TO MAKE A ROUGH APPROXIMATION OF THE GAIN REALIZED THEREBY
THAN TO IGNORE ALTOGETHER ITS TAX CONSEQUENCES.  CF. HELVERING V. SAFE
DEPOSIT & TRUST CO., 316 U.S. 56, 67 (1942). 

MOREOVER, IF THE TRANSACTION IS TO BE CONSIDERED A TAXABLE EVENT AS
TO THE HUSBAND, THE COURT OF CLAIMS' POSITION LEAVES UP IN THE AIR THE
WIFE'S BASIS FOR THE PROPERTY RECEIVED.  IN THE CONTEXT OF A TAXABLE
TRANSFER BY THE HUSBAND, (FN7) ALL INDICIA POINT TO A "COST" BASIS FOR
THIS PROPERTY IN THE HANDS OF THE WIFE.  (FN8)  YET UNDER THE COURT OF
CLAIMS' POSITION HER COST FOR THIS PROPERTY, I.E., THE VALUE OF THE
MARITAL RIGHTS RELINQUISHED THEREFOR, WOULD BE INDETERMINABLE, AND ON
SUBSEQUENT DISPOSITION OF THE PROPERTY SHE MIGHT SUFFER INORDINATELY
OVER THE COMMISSIONER'S ASSESSMENT WHICH SHE WOULD HAVE THE BURDEN OF
PROVING ERRONEOUS, COMMISSIONER V. HANSEN, 360 U.S. 446, 468 (1959). 
OUR PRESENT HOLDING THAT THE VALUE OF THESE RIGHTS IS ASCERTAINABLE
ELIMINATES THIS PROBLEM; FOR THE SAME CALCULATION THAT DETERMINES THE
AMOUNT RECEIVED BY THE HUSBAND FIXES THE AMOUNT GIVEN UP BY THE WIFE,
AND THIS FIGURE, I.E., THE MARKET VALUE OF THE PROPERTY TRANSFERRED BY
THE HUSBAND, WILL BE TAKEN BY HER AS HER TAX BASIS FOR THE PROPERTY
RECEIVED.    FINALLY, IT MUST BE NOTED THAT HERE, AS WELL AS IN
RELATION TO THE QUESTION OF WHETHER THE EVENT IS TAXABLE, WE DRAW
SUPPORT FROM THE PRIOR ADMINISTRATIVE PRACTICE AND JUDICIAL APPROVAL OF
THAT PRACTICE.  SEE P. 71, SUPRA.  WE THEREFORE CONCLUDE THAT THE
COMMISSIONER'S ASSESSMENT OF A TAXABLE GAIN BASED UPON THE VALUE OF THE
STOCK AT THE DATE OF ITS TRANSFER HAS NOT BEEN SHOWN ERRONEOUS.  (FN9)

     IV.    THE ATTORNEY-FEE QUESTION IS MUCH SIMPLER.  IT IS THE
CUSTOMARY PRACTICE IN DELAWARE FOR THE HUSBAND TO PAY BOTH HIS OWN AND
HIS WIFE'S LEGAL EXPENSES INCURRED IN THE DIVORCE AND THE PROPERTY
SETTLEMENT.  HERE PETITIONER PAID $5,000 OF SUCH FEES IN THE TAXABLE
YEAR 1955 EARMARKED FOR TAX ADVICE IN RELATION TO THE PROPERTY
SETTLEMENT.  ONE-HALF OF THIS SUM WENT TO THE WIFE'S ATTORNEY.  THE
TAXPAYER CLAIMED THAT UNDER SEC. 212(3) OF THE 1954 CODE, WHICH ALLOWS
A DEDUCTION FOR THE "ORDINARY AND NECESSARY EXPENSES PAID  ...  IN
CONNECTION WITH THE DETERMINATION, COLLECTION, OR REFUND OF ANY TAX,"
HE WAS ENTITLED TO DEDUCT THE ENTIRE $5,000.  THE COURT OF CLAIMS
ALLOWED THE $2,500 PAID TAXPAYER'S OWN ATTORNEY BUT DENIED THE LIKE
AMOUNT PAID THE WIFE'S ATTORNEY.  THE SOLE QUESTION HERE IS THE
DEDUCTIBILITY OF THE LATTER FEE; THE GOVERNMENT DID NOT SEEK REVIEW OF
THE AMOUNT TAXPAYER PAID HIS OWN ATTORNEY, AND WE INTIMATE NO DECISION
ON THAT POINT.  AS TO THE DEDUCTION OF THE WIFE'S FEES, WE READ THE
STATUTE, IF APPLICABLE TO THIS TYPE OF TAX EXPENSE, TO INCLUDE ONLY THE
EXPENSES OF THE TAXPAYER HIMSELF AND NOT THOSE OF HIS WIFE.  HERE THE
FEES PAID HER ATTORNEY DO NOT APPEAR TO BE "IN CONNECTION WITH THE
DETERMINATION, COLLECTION, OR REFUND" OF ANY TAX OF THE TAXPAYER.  AS
THE COURT OF CLAIMS FOUND, THE WIFE'S ATTORNEY "CONSIDERED THE PROBLEMS
FROM THE STANDPOINT OF HIS CLIENT ALONE.  CERTAINLY THEN IT CANNOT BE
SAID THAT  ...  HIS ADVICE WAS DIRECTED TO PLAINTIFF'S TAX PROBLEMS
...  ."  152 CT. CL., AT 805, 287 F.2D, AT 171.  WE THEREFORE CONCLUDE,
AS DID THE COURT OF CLAIMS, THAT THOSE FEES WERE NOT A DEDUCTIBLE ITEM
TO THE TAXPAYER.  REVERSED IN PART AND AFFIRMED IN PART. 

FN1  DAVIS' PRESENT WIFE, GRACE ETHEL DAVIS, IS ALSO A PARTY TO THESE
PROCEEDINGS BECAUSE A JOINT RETURN WAS FILED IN THE TAX YEAR IN
QUESTION. 

FN2  THE HOLDING IN THE INSTANT CASE IS IN ACCORD WITH COMMISSIONER
V. MARSHMAN, 279 F.2D 27 (C.A. 6TH CIR. 1960), BUT IS CONTRA TO THE
HOLDINGS IN COMMISSIONER V. HALLIWELL, 131 F.2D 642 (C.A.2D CIR. 1942),
AND COMMISSIONER V. MESTA, 123 F.2D 986 (C.A. 3D CIR. 1941). 

FN3  12 DEL. CODE ANN. (SUPP. 1960) SEC. 512; 13 DEL. CODE ANN. SEC.
1531.  IN THE CASE OF REALTY, THE WIFE IN ADDITION TO THE ABOVE HAS
RIGHTS OF DOWER.  12 DEL. CODE ANN.  SECS. 502, 901, 904, 905. 

FN4  INTERNAL REVENUE CODE OF 1954 SEC. 61(A). 

FN5  INTERNAL REVENUE CODE OF 1954 SECS. 1001, 1002. 

FN6  ANY SUGGESTION THAT THE TRANSACTION IN QUESTION WAS A GIFT IS
COMPLETELY UNREALISTIC.  PROPERTY TRANSFERRED PURSUANT TO A NEGOTIATED
SETTLEMENT IN RETURN FOR THE RELEASE OF ADMITTEDLY VALUABLE RIGHTS IS
NOT A GIFT IN ANY SENSE OF THE TERM.  TO INTIMATE THAT THERE WAS A GIFT
TO THE EXTENT THE VALUE OF THE PROPERTY EXCEEDED THAT OF THE RIGHTS
RELEASED NOT ONLY INVOKES THE ERRONEOUS PREMISE THAT EVERY EXCHANGE NOT
PRECISELY EQUAL INVOLVES A GIFT BUT MERELY RAISES THE MEASUREMENT
PROBLEM DISCUSSED IN PART III, INFRA, P. 71.  CASES IN WHICH THIS COURT
HAS HELD TRANSFERS OF PROPERTY IN EXCHANGE FOR THE RELEASE OF MARITAL
RIGHTS SUBJECT TO GIFT TAXES ARE BASED NOT ON THE PREMISE THAT SUCH
TRANSACTIONS ARE INHERENTLY GIFTS BUT ON THE CONCEPT THAT IN THE
CONTEMPLATION OF THE GIFT TAX STATUTE THEY ARE TO BE TAXED AS GIFTS. 
MERRILL V. FAHS, 324 U.S. 308 (1945); COMMISSIONER V. WEMYSS, 324 U.S.
303 (1945); SEE HARRIS V. COMMISSIONER, 340 U.S. 106 (1950).  IN
INTERPRETING THE PARTICULAR INCOME TAX PROVISIONS HERE INVOLVED, WE
FIND OURSELVES UNFETTERED BY THE LANGUAGE AND CONSIDERATIONS INGRAINED
IN THE GIFT AND ESTATE TAX STATUTES.  SEE FARID-ES-SULTANEH V.
COMMISSIONER, 160 F.2D 812 (C.A.2D CIR. 1947). 

FN7  UNDER THE PRESENT ADMINISTRATIVE PRACTICE, THE RELEASE OF
MARITAL RIGHTS IN EXCHANGE FOR PROPERTY OR OTHER CONSIDERATION IS NOT
CONSIDERED A TAXABLE EVENT AS TO THE WIFE.  FOR A DISCUSSION OF THE
DIFFICULTIES CONFRONTING A WIFE UNDER A CONTRARY APPROACH, SEE TAYLOR
AND SCHWARTZ, TAX ASPECTS OF MARITAL PROPERTY AGREEMENTS, 7 TAX L. REV.
19, 30 (1951); COMMENT, THE LUMP SUM DIVORCE SETTLEMENT AS A TAXABLE
EXCHANGE, 8 U.C.L.A.L. REV. 593, 601-602 (1961). 

FN8  SECTION 1012 OF THE INTERNAL REVENUE CODE OF 1954 PROVIDES THAT:
"THE BASIS OF PROPERTY SHALL BE THE COST OF SUCH PROPERTY, EXCEPT AS
OTHERWISE PROVIDED IN THIS SUBCHAPTER AND SUBCHAPTERS C (RELATING TO
CORPORATE DISTRIBUTIONS AND ADJUSTMENTS), K (RELATING TO PARTNERS AND
PARTNERSHIPS), AND P (RELATING TO CAPITAL GAINS AND LOSSES)  ... ." 

FN9  WE DO NOT PASS ON THE SOUNDNESS OF THE TAXPAYER'S OTHER ATTACKS
UPON THIS DETERMINATION, FOR THESE CONTENTIONS WERE NOT PRESENTED TO
THE COMMISSIONER OR THE COURT OF CLAIMS. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THESE CASES. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :























LEHIGH VALLEY COOPERATIVE FARMERS, INC. V. UNITED STATES 370 U.S. 76 


NO. 79.  ARGUED JANUARY 17-18, 1962 - DECIDED JUNE 4, 1962 - 287 F.2D
726, REVERSED. 


UNDER SEC. 8C OF THE AGRICULTURAL ADJUSTMENT ACT, AS AMENDED AND RE
ENACTED BY THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, THE
SECRETARY OF AGRICULTURE ISSUED ORDERS REGULATING THE MARKETING OF MILK
IN THE NEW YORK-NEW JERSEY REGION.  TO PROTECT THE PRICES RECEIVED BY
MILK PRODUCERS IN THAT REGION, HE INCLUDED IN THE ORDERS A PROVISION IN
EFFECT REQUIRING THOSE WHO BUY MILK ELSEWHERE AND BRING IT INTO THE
REGION FOR SALE AS FLUID MILK TO PAY TO THE PRODUCERS WHO REGULARLY
SUPPLY THE REGION A "COMPENSATORY PAYMENT" EQUAL TO THE DIFFERENCE
BETWEEN THE MINIMUM PRICE SET BY THE MARKET ADMINISTRATOR FOR FLUID
MILK AND THE MINIMUM PRICE FOR SURPLUS MILK IN THE REGION.  HELD:  THIS
REQUIREMENT IS INVALID, BECAUSE IT CONFLICTS WITH SEC. 8C(5)(G) OF THE
ACT, WHICH, AS SHOWN BY ITS LEGISLATIVE HISTORY, WAS INTENDED BY
CONGRESS TO PREVENT THE SECRETARY FROM SETTING UP TRADE BARRIERS TO THE
IMPORTATION OF MILK FROM OTHER PRODUCTION AREAS IN THE UNITED STATES. 
PP. 77-100. 

LEHIGH VALLEY COOPERATIVE FARMERS, INC., ET AL. V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, OPERATING MILK PROCESSING PLANTS IN PENNSYLVANIA,
CHALLENGE THE VALIDITY OF CERTAIN "COMPENSATORY PAYMENT" PROVISIONS
INCLUDED IN MILK MARKETING ORDERS AFFECTING THE NEW YORK-NEW JERSEY
AREA, WHICH WERE PROMULGATED BY THE SECRETARY OF AGRICULTURE UNDER THE
AUTHORITY GRANTED HIM BY SEC. 8C OF THE AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937, 7 U.S.C. SEC. 608C.  THAT SECTION PERMITS THE
SECRETARY TO ISSUE REGIONAL REGULATIONS GOVERNING, IN VARIOUS
ENUMERATED RESPECTS, THE MARKETING OF CERTAIN AGRICULTURAL COMMODITIES,
AMONG WHICH IS MILK.  THIS PROVISION IN QUESTION REQUIRES THOSE WHO BUY
MILK ELSEWHERE AND BRING IT INTO THE REGION FOR SALE AS FLUID MILK TO
PAY TO THE FARMERS WHO SUPPLY THE REGION A FIXED AMOUNT AS A
"COMPENSATORY PAYMENT."  THIS AMOUNT IS MEASURED BY THE DIFFERENCE
BETWEEN THE MINIMUM PRICE SET BY THE MARKET ADMINISTRATOR FOR FLUID
MILK AND THE MINIMUM PRICE FOR SURPLUS MILK.  THE JUDGMENT OF THE COURT
OF APPEALS FOR THE THIRD CIRCUIT, 287 F.2D 726, UPHOLDING THE VALIDITY
OF THE "COMPENSATORY PAYMENT" PROVISION HERE UNDER ATTACK, (FN1)
CONFLICTED WITH AN EARLIER DECISION RENDERED BY THE COURT OF APPEALS
FOR THE SECOND CIRCUIT, KASS V. BRANNAN, 196 F.2D 791.  TO RESOLVE THIS
CONFLICT WE GRANTED CERTIORARI.  366 U.S. 957. 

                 I.

                     THE GENERAL SCHEME OF MILK REGULATION. 

THE ORDER AROUND WHICH THE PRESENT CONTROVERSY CENTERS, NOW TITLED
MILK MARKETING ORDER NO. 2, 7 CFR SECS. 1002.1 ET SEQ., (FN2) THOUGH
SOMEWHAT MORE COMPLEX THAN OTHERS, IS IN ITS GENERAL OUTLINE
REPRESENTATIVE OF THE PATTERN OF REGULATION ESTABLISHED BY THE
SECRETARY FOR THE PROMOTION OF ORDERLY MARKETING CONDITIONS IN THE MILK
INDUSTRY AND THE PRESERVATION OF MINIMUM PRICES FOR FARMERS.  PURSUANT
TO THE AUTHORITY GRANTED BY SEC. 8C(5)(A), (FN3) THE ORDER CLASSIFIES
MILK THAT IS SOLD WITHIN THE NEW YORK-NEW JERSEY MARKETING AREA "IN
ACCORDANCE WITH THE FORM IN WHICH OR THE PURPOSE FOR WHICH IT IS
USED."  MILK THAT CONTAINS 3% TO 5% BUTTERFAT - THE USUAL PROPORTION IN
ORDINARY LIQUID MILK - AND IS SOLD FOR FLUID CONSUMPTION IS ASSIGNED TO
CLASS I. MILK THAT IS USED FOR CREAM (SWEET AND SOUR), HALF AND HALF,
OR MILK DRINKS CONTAINING LESS THAN 3% OR MORE THAN 5% BUTTERFAT IS
CLASSIFIED IN CLASS II.  THE REMAINDER - MILK THAT IS TO BE STORED FOR
A SUBSTANTIAL PERIOD AND USED FOR DAIRY PRODUCTS SUCH AS BUTTER AND
CHEESE - IS GROUPED IN CLASS III.  7 CFR SEC. 1002.37. 

THIS CLASSIFICATION REFLECTS THE RELATIVE PRICES USUALLY COMMANDED BY
THE DIFFERENT FORMS OF MILK.   THUS, HIGHEST PRICES ARE PAID FOR MILK
USED FOR FLUID CONSUMPTION, AND THE LOWEST FOR MILK WHICH IS TO BE
PROCESSED INTO BUTTER AND CHEESE.  SINCE THE SUPPLY OF MILK IS ALWAYS
GREATER THAN THE DEMANDS OF THE FLUID-MILK MARKET, THE EXCESS MUST BE
CHANNELED TO THE LESS DESIRABLE, LOWER-PRICED OUTLETS.  IT IS IN ORDER
TO AVOID DESTRUCTIVE COMPETITION AMONG MILK PRODUCERS FOR THE PREMIUM
OUTLETS THAT THE STATUTE AUTHORIZES THE SECRETARY TO DEVISE A METHOD
WHEREBY UNIFORM PRICES ARE PAID BY MILK HANDLERS TO PRODUCERS FOR ALL
MILK RECEIVED, REGARDLESS OF THE FORM IN WHICH IT LEAVES THE PLANT AND
ITS ULTIMATE USE.  ADJUSTMENTS ARE THEN MADE AMONG THE HANDLERS SO THAT
EACH EVENTUALLY PAYS OUT-OF-POCKET AN AMOUNT EQUAL TO THE ACTUAL
UTILIZATION VALUE OF THE MILK HE HAS BOUGHT. 

UNDER THE MARKETING ORDER HERE IN QUESTION IT IS PRIMARILY THE
HANDLERS WHOSE PLANTS ARE LOCATED WITHIN THE MARKETING AREA AND WHO
REGULARLY SUPPLY THAT AREA WITH FLUID MILK WHO ARE REGULATED.  ALL
HANDLERS WHO RECEIVE OR DISTRIBUTE MILK WITHIN THE AREA ARE REQUIRED TO
SUBMIT MONTHLY REPORTS TO THE MARKET ADMINISTRATOR, LISTING THE
QUANTITY OF MILK THEY HAVE HANDLED AND THE USE FOR WHICH IT WAS SOLD. 
BUT ONLY THE HANDLERS OPERATING "POOL PLANTS" - I.E., PLANTS WHICH MEET
CERTAIN STANDARDS SET OUT IN 7 CFR SECS.  1002.25-1002.29 (FN4) - MUST
PAY THE PRODUCERS FROM WHOM THEY BUY THE UNIFORM PRICE SET BY THE
ADMINISTRATOR.  THIS PRICE IS CALCULATED EACH MONTH ON THE BASIS OF THE
REPORTS THAT ARE SUBMITTED.  AFTER DETERMINING THE MINIMUM PRICES FOR
EACH USE CLASSIFICATION PURSUANT TO FORMULAS SET OUT IN 7 CFR SEC.
1002.40, THE ADMINISTRATOR COMPUTES AN AVERAGE PRICE FOR THE "POOL"
MILK HANDLED DURING THAT MONTH.  THIS FIGURE IS REACHED BY FIRST
MULTIPLYING THE "POOL" MILK DISPOSED OF IN EACH CLASS BY THE
ESTABLISHED MINIMUM PRICE FOR THAT CLASS, AND THEN ADDING THE PRODUCTS
TO THE "COMPENSATORY PAYMENTS" MADE FOR NONPOOL MILK.  AFTER CERTAIN
MINOR ADJUSTMENTS ARE MADE, THIS SUM IS DIVIDED BY THE TOTAL QUANTITY
OF "POOL" MILK SOLD IN THE MARKET DURING THE MONTH.  THE QUOTIENT IS A
"BLEND PRICE."  WITH SOME ADJUSTMENTS TO REFLECT TRANSPORTATION
EXPENSES, THIS UNIFORM PRICE MUST BE PAID TO PRODUCERS BY ALL HANDLERS
MAINTAINING "POOL" PLANTS.  7 CFR SEC. 1002.66. 

ADJUSTMENTS AMONG HANDLERS ARE MADE BY WAY OF A "PRODUCER SETTLEMENT
FUND," INTO WHICH EACH HANDLER CONTRIBUTES THE EXCESS OF HIS "USE
VALUE" (FN5) OVER THE UNIFORM PRICE PAID BY HIM TO HIS PRODUCER. 
HANDLERS WHOSE "USE VALUE" OF THE MILK THEY PURCHASE IS LESS THAN THE
"BLEND PRICE" THEY ARE REQUIRED TO PAY MAY WITHDRAW THE DIFFERENCE FROM
THE FUND.  THE NET EFFECT IS THAT EACH HANDLER PAYS FOR HIS MILK AT THE
PRICE HE WOULD HAVE PAID HAD IT BEEN EARMARKED AT THE OUTSET FOR THE
USE TO WHICH IT WAS ULTIMATELY PUT.  BUT THE FARMER WHO PRODUCES THE
MILK IS PROTECTED FROM THE EFFECTS OF COMPETITION FOR PREMIUM OUTLETS
SINCE HE IS AUTOMATICALLY ALLOTTED A PROPORTIONAL SHARE OF EACH OF THE
DIFFERENT "USE" MARKETS. 

                             II.

THE COMPENSATORY PAYMENT PROVISION. 

IT WILL THUS BE SEEN THAT THIS SYSTEM OF REGULATION CONTEMPLATES
ECONOMIC CONTROLS ONLY OVER "POOL-HANDLER" PLANTS SINCE ONLY SUCH
HANDLERS ARE REQUIRED TO PAY THE "BLEND PRICE" TO THEIR PRODUCERS AND
TO ACCOUNT TO THE PRODUCER SETTLEMENT FUND.  IF LIMITED TO THE
PROVISIONS RECOUNTED ABOVE, THE REGULATORY SCHEME WOULD NOT AFFECT MILK
BROUGHT INTO THE NEW YORK-NEW JERSEY MARKETING AREA BY HANDLERS WHO ARE
PRIMARILY ENGAGED IN SUPPLYING SOME OTHER MARKET AND WHOSE PRODUCERS
ARE NOT LOCATED WITHIN THE NEW YORK-NEW JERSEY AREA.  SOME OF THE
REGIONAL ORDERS NOW IN EFFECT DO NOT UNDERTAKE ANY ECONOMIC REGULATION
OF "OUTSIDE" OR "OTHER SOURCE" MILK.  (FN6)  BUT IT IS QUITE OBVIOUS
THAT UNDER CERTAIN CIRCUMSTANCES SOME REGULATION OF SUCH MILK MAY BE
NECESSARY.  ACCORDINGLY, SEC. 8C(7)(D) OF THE ACT, 7 U.S.C. SEC.
608C(7)(D), AUTHORIZES THE SECRETARY TO INCLUDE IN HIS REGULATING
ORDERS CONDITIONS THAT ARE INCIDENTAL TO TERMS EXPRESSLY AUTHORIZED BY
THE STATUTE, AND THAT ARE "NECESSARY TO EFFECTUATE THE OTHER PROVISIONS
OF SUCH ORDER." 

A HANDLER WHO BRINGS OUTSIDE MILK INTO A MARKETING AREA MAY DISRUPT
THE REGULATORY SCHEME IN AT LEAST TWO RESPECTS: 

(1)  POOL HANDLERS IN THE MARKETING AREA WHO ARE REQUIRED TO PAY THE
MINIMUM CLASS PRICES FOR THEIR MILK MAY FIND THEIR SELLING PRICES
UNDERCUT BY THOSE OF NONPOOL HANDLERS DEALING IN OUTSIDE MILK PURCHASED
AT AN UNREGULATED PRICE. 

(2)  PRODUCERS IN THE MARKETING AREA, WHOSE "BLEND PRICE" DEPENDS ON
HOW MUCH OF THE RELATIVELY CONSTANT FLUID-MILK DEMAND THEY SUPPLY IN A
GIVEN MONTH, MAY FIND THE OUTSIDE MILK OCCUPYING A PORTION OF THE
PREMIUM MARKET, THUS DISPLACING THE "POOL" MILK AND FORCING IT INTO THE
LESS REWARDING SURPLUS USES, WITH THE ULTIMATE EFFECT OF DIMINISHING
THE "BLEND PRICE" PAYABLE TO PRODUCERS. 

IN AN EFFORT TO COPE WITH THESE DISRUPTIVE ECONOMIC FORCES, THE
SECRETARY DEVISED HIS "COMPENSATORY PAYMENT" PLAN.  IN ESSENCE THE PLAN
IMPOSES SPECIAL MONETARY EXACTIONS ON HANDLERS INTRODUCING "OUTSIDE"
MILK FOR FLUID CONSUMPTION INTO A MARKETING AREA IN MONTHS WHEN THERE
IS A SUBSTANTIAL SURPLUS OF MILK ON THE MARKET.  (FN7) 

OF THE 68 REGIONAL MILK ORDERS WHICH ESTABLISH MARKETWIDE POOL, (FN8)
64 CONTAIN "COMPENSATORY PAYMENT" PROVISIONS OF ONE KIND OR ANOTHER. 
THE ORDER NOW BEFORE US IS TYPICAL OF 23 OF THESE ORDERS.  (FN9)  THE
ORDER PROVIDES THAT A HANDLER WHO BRINGS "OUTSIDE" MILK INTO THE NEW
YORK-NEW JERSEY AREA AND SELLS IT FOR FLUID USE MUST PAY TO THE POOL'S
PRODUCERS, THROUGH THE PRODUCER SETTLEMENT FUND, AN AMOUNT EQUAL TO THE
DIFFERENCE BETWEEN THE MINIMUM PRICES FOR THE HIGHEST AND FOR THE
LOWEST USE CLASSIFICATIONS PREVAILING IN THAT AREA.  IN OTHER WORDS,
FOR EACH HUNDREDWEIGHT OF NONPOOL MILK SOLD FOR CLASS I USE IN THE NEW
YORK-NEW JERSEY AREA, A PAYMENT EQUAL TO THE DIFFERENCE BETWEEN CLASS I
AND CLASS III PRICES MUST BE MADE BY THE SELLER TO THE PRODUCER
SETTLEMENT FUND. 

                                  III. 

       THE PURPOSE AND EFFECT OF THE COMPENSATORY

                                 PAYMENT. 

AFTER THE COURT OF APPEALS FOR THE SECOND CIRCUIT HAD HELD THE
COMPENSATORY PAYMENT REQUIREMENT IN THE NEW YORK-NEW JERSEY MILK
MARKETING ORDER (THEN ORDER NO. 27) TO BE A "PENALTY," KASS V. BRANNAN,
196 F.2D 791, 795, THE SECRETARY OF AGRICULTURE CONDUCTED EXTENSIVE
HEARINGS TO DETERMINE WHETHER IT SHOULD BE RETAINED.  HIS FINDINGS,
WHICH APPEAR AT 18 FED. REG. 8444-8454, EXPLAIN THIS REQUIREMENT AS THE
MOST SATISFACTORY MEANS OF IMPOSING "A SUITABLE CHARGE ON SUCH UNPRICED
MILK IN AN AMOUNT SUFFICIENT TO NEUTRALIZE, COMPENSATE FOR AND
ELIMINATE THE ARTIFICIAL ECONOMIC ADVANTAGE FOR NON-POOL MILK WHICH
NECESSARILY IS CREATED BY THE CLASSIFIED PRICING AND POOLING OF POOL
MILK UNDER THE ORDER."  ID., AT 8448.  THERE SEEMS LITTLE DOUBT THAT AN
ASSESSMENT EQUAL TO THE CLASS I-CLASS III DIFFERENTIAL WOULD, IN ALL
BUT RARE INSTANCES NULLIFY ANY COMPETITIVE ADVANTAGE THAT NON-POOL MILK
COULD HAVE:  ONLY IF THE SUM OF THE PURCHASE PRICE OF THE OUTSIDE MILK
AND THE COST OF ITS TRANSPORTATION TO MARKET WERE LESS THAN THE CLASS
III PRICE WOULD A HANDLER FIND IT PROFITABLE TO BRING SUCH MILK INTO
THE MARKETING AREA.  BUT IT MUST BE OBVIOUS THAT THIS PAYMENT IS WHOLLY
OR PARTIALLY "COMPENSATORY" - I.E., PUTS POOL AND NONPOOL MILK "ON
SUBSTANTIALLY SIMILAR COMPETITIVE POSITIONS AT SOURCE" (IBID.) - ONLY
IF THE MILK HAS BEEN PURCHASED AT NOT MORE THAN THE CLASS III PRICE. 
IF THE PURCHASE PRICE OF THE NONPOOL MILK EXCEEDS THE CLASS III PRICE
WITHIN THE AREA, THE EFFECT OF THE FIXED COMPENSATORY PAYMENT IS TO
MAKE IT ECONOMICALLY UNFEASIBLE FOR A HANDLER TO BRING SUCH MILK INTO
THE MARKETING AREA. 

THE SECRETARY OF AGRICULTURE'S DETERMINATION THAT THE CLASS I-CLASS
III DIFFERENTIAL WAS THE MOST SUITABLE COMPENSATORY FIGURE RESTED UPON
WHAT WAS, IN EFFECT, AN IRREBUTTABLE PRESUMPTION THAT THE NONPOOL MILK
WAS PURCHASED AT A RATE COMMENSURATE WITH THE VALUE OF "SURPLUS" (CLASS
III) MILK.  SEE 18 FED. REG., AT 8448.  (FN10)  THAT PRESUMPTION WAS
BASED IN TURN ON THE SUPPOSITION THAT THE NONPOOL MILK COULD NOT HAVE
BEEN WORTH MORE THAN THE CLASS III PRICE WHERE PURCHASED SINCE IT COULD
NOT BE SHIPPED ELSEWHERE FOR CLASS I USE.  BUT IT MUST BE APPARENT THAT
IT IS ONLY IF THE MILK IS DENIED ACCESS TO OTHER MARKETING AREAS OR IF
A PROHIBITIVE PAYMENT IS ASSESSED ON ITS USE ELSEWHERE THAT IT WILL
DEPRECIATE IN VALUE TO CLASS III LEVELS.  FOR IF THE MILK CAN BE FREELY
SHIPPED ELSEWHERE FOR FLUID USE OR IF IT IS PURCHASED IN AN AREA WHERE
PRICES PAID TO PRODUCERS ARE REGULATED, IT WILL COMMAND A HIGHER
PRICE. 

INDEED, THE FACTS OF THE CASE NOW BEFORE US DEMONSTRATE THE
SHORTCOMINGS OF THE SECRETARY'S REASONING.  ONE OF THE PETITIONERS,
SUNCREST FARMS, INC., PURCHASES ITS MILK IN PENNSYLVANIA UNDER
REGULATIONS ESTABLISHED BY THE PENNSYLVANIA MILK CONTROL COMMISSION. 
IN SEPTEMBER 1957, WHICH WAS ONE OF THE MONTHS DURING WHICH IT SOUGHT
TO SELL ITS MILK IN THE NEW YORK-NEW JERSEY MARKETING AREA, SUNCREST
WAS REQUIRED TO PAY $6.40 PER CWT. FOR THE MILK IT PURCHASED FROM DAIRY
FARMERS IN PENNSYLVANIA.  THE CLASS I-CLASS III DIFFERENTIAL IN THE NEW
YORK-NEW JERSEY MARKETING AREA DURING THAT MONTH WAS $2.78 PER CWT.
THUS, IF THE "COMPENSATORY PAYMENT" WERE ASSESSED, SUNCREST WOULD
ACTUALLY BE FORCED TO PAY $9.18 PER CWT. FOR FLUID MILK SOLD IN THE
AREA, WHILE THE HANDLERS MAINTAINING POOL PLANTS IN THE AREA WOULD PAY
ONLY THE CLASS I PRICE, WHICH WAS $6.23 IN AUGUST 1957.  (FN11) 

IF COMPETITIVE PARITY AMONG HANDLERS OF POOL AND NONPOOL MILK WERE
THE ONLY OBJECTIVE OF THE SECRETARY'S "COMPENSATORY" REGULATION, OTHER
MARKETING ORDERS OF THE SECRETARY SHOW THAT THIS RESULT HAS BEEN
ACHIEVED WITHOUT IMPOSING UNNECESSARY HARDSHIPS, VIRTUALLY "TRADE
BARRIERS" AS IN THE INSTANCE JUST GIVEN, (FN12) ON THE NONPOOL MILK. 
(FN13) 

IT IS IN CONSIDERING THE EFFECT OF THE PRESENT COMPENSATORY PAYMENT
PROVISION ON THE POOL PRODUCERS, HOWEVER, THAT THE PRINCIPAL CONCERN OF
THE SECRETARY BECOMES QUITE APPARENT.  AS HAS BEEN NOTED (P. 82,
SUPRA), THE SALE FOR FLUID USE OF NONPOOL MILK IN THE MARKETING AREA
DISPLACES POOL MILK THAT MIGHT OTHERWISE BE USED FOR THIS PREMIUM
OUTLET.  SINCE THE MARKET AREA'S "BLEND PRICE" IS COMPUTED ONLY WITH
REFERENCE TO THE POOL MILK, THE EFFECT OF THE ENTRY OF NONPOOL MILK IS
TO DRIVE DOWN THE PRICE THAT IS PAID TO PRODUCERS IN THE AREA.  A CLOSE
EXAMINATION OF THE WORKINGS OF THE PRESENT COMPENSATORY PAYMENT
PROVISION REVEALS THAT ITS EFFECT IS TO PRESERVE FOR THE BENEFIT OF THE
AREA'S PRODUCERS THE BLEND PRICE THAT THEY WOULD RECEIVE IF ALL OUTSIDE
MILK WERE PHYSICALLY EXCLUDED AND THEY ALONE WOULD SUPPLY THE FLUID
MILK NEEDS OF THE AREA.  FOR EVERY CWT. OF POOL MILK THAT IS FORCED
INTO "SURPLUS" USE BY THE ENTRY OF NONPOOL MILK, THE HANDLER
INTRODUCING THE OUTSIDE MILK IS REQUIRED TO PAY FOR THE BENEFIT OF THE
AREA'S PRODUCERS THE DIFFERENCE BETWEEN THE VALUE THE POOL MILK WOULD
HAVE HAD IF THE NONPOOL MILK HAD NEVER ENTERED AND THE VALUE IT HAS
ONCE THE NONPOOL MILK IS SOLD FOR FLUID USE.  (FN14)  IN EFFECT,
THEREFORE, THE NONPOOL MILK IS FORCED TO SUBSIDIZE THE POOL MILK AND
INSULATE THE POOL MILK FROM THE COMPETITIVE IMPACT CAUSED BY THE ENTRY
OF OUTSIDE MILK.  THIS WAS RECOGNIZED BY THE COURT OF APPEALS WHICH
HELD THAT SUCH A COMPENSATORY PAYMENT WAS "DESIGNED TO COMPENSATE THE
POOL FOR THE LOSS OF THE CLASS I FLUID MILK UTILIZATION AND  ...
PROTECT THE UNIFORM BLEND PRICE IN THE MARKETING AREA."  287 F.2D, AT
730.  IT IS ONLY IF THE SECRETARY HAS BEEN AUTHORIZED BY THE STATUTE TO
IMPOSE SUCH ECONOMIC TRADE BARRIERS ON THE ENTRY OF MILK INTO AN AREA
SO AS TO PROTECT THE PRICES RECEIVED BY THE POOL PRODUCERS THAT THE
PRESENT COMPENSATORY PAYMENT PLAN CAN BE SUSTAINED AS "NECESSARY TO
EFFECTUATE" THE EXPRESSLY AUTHORIZED PROVISIONS OF THIS ORDER. 

                                               IV.

                                 SECTION 8C(5)(G). 

LEGISLATIVE HISTORY, INDICATES THAT THE REGULATION HERE IMPOSED BY THE
SECRETARY WAS OF THE SORT THAT CONGRESS INTENDED TO FORBID.  SECTION
8C(5)(G) PROVIDES: 

"NO MARKETING AGREEMENT OR ORDER APPLICABLE TO MILK AND ITS PRODUCTS
IN ANY MARKETING AREA SHALL PROHIBIT OR IN ANY MANNER LIMIT, IN THE
CASE OF THE PRODUCTS OF MILK, THE MARKETING IN THAT AREA OF ANY MILK OR
PRODUCT THEREOF PRODUCED IN ANY PRODUCTION AREA IN THE UNITED STATES." 

THIS PROVISION WAS FIRST ENACTED INTO LAW AS PART OF THE AGRICULTURAL
ADJUSTMENT ACT OF 1935, 49 STAT. 750, AMENDING THE AGRICULTURAL
ADJUSTMENT ACT OF 1933, 48 STAT.  31.  IT WAS RE-ENACTED AS PART OF THE
AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, 50 STAT. 246, WHICH
REAFFIRMED THE MARKETING ORDER PROVISIONS OF THE 1935 ACT AFTER THE
PROCESSING TAX HAD BEEN STRUCK DOWN AS UNCONSTITUTIONAL IN UNITED
STATES V. BUTLER, 297 U.S. 1. 

ALONG WITH ENUMERATING THE POWERS GRANTED TO THE SECRETARY OF
AGRICULTURE SO AS TO AVOID THE "DELEGATION" PROBLEMS BROUGHT TO LIGHT
BY THE THEN RECENT DECISION IN SCHECHTER V. UNITED STATES, 295 U.S.
495, THE CONGRESS SOUGHT IN 1935 TO LIMIT THE SECRETARY'S POWERS SO AS
TO PREVENT HIM FROM ESTABLISHING "TRADE BARRIERS."  MIDWESTERN
LEGISLATORS WERE PARTICULARLY CONCERNED OVER THIS POSSIBILITY.  WHEN
THE REPORTED BILL WHICH CONTAINED NO PROVISION LIKE THE PRESENT SEC.
8C(5)(G) CAME TO THE FLOOR OF THE HOUSE OF REPRESENTATIVES,
REPRESENTATIVE ANDRESEN OF MINNESOTA SUGGESTED THAT THE SECRETARY MIGHT
USE HIS POWERS TO "STOP THE FREE FLOW IN COMMERCE  ...  OF DAIRY
PRODUCTS."   HE RECEIVED AN ASSURANCE FROM REPRESENTATIVE JONES, THE
CHAIRMAN OF THE HOUSE COMMITTEE ON AGRICULTURE, THAT THE SECRETARY WAS
NOT AUTHORIZED TO REQUIRE ANYTHING MORE OF MILK COMING INTO A MARKETING
AREA THAN THAT IT "COMPLY WITH THE SAME CONDITIONS WHICH THE FARMERS
AND DISTRIBUTORS COMPLY WITH IN THAT REGION."  79 CONG. REC. 9462. 
(FN15)  AN AMENDMENT TO THE BILL CLARIFYING THIS POSITION WAS THEN
OFFERED BY REPRESENTATIVE SAUTHOFF OF WISCONSIN, 79 CONG. REC. 9493,
(FN16) BUT NO ACTION WAS TAKEN ON THAT PROPOSAL. 

ON THE NEXT DAY, REPRESENTATIVE ANDRESEN PROPOSED FROM THE FLOOR OF
THE HOUSE THE FORERUNNER TO THE PRESENT SEC. 8C(5)(G).  79 CONG. REC.
9572.  HIS AMENDMENT TOOK THE FOLLOWING FORM: 

"(G)  NO MARKETING AGREEMENT OR ORDER APPLICABLE TO MILK AND ITS
PRODUCTS IN ANY MARKETING AREA SHALL PROHIBIT THE MARKETING IN THAT
AREA OF ANY MILK OR PRODUCT THEREOF PRODUCED IN ANY PRODUCTION AREA IN
THE UNITED STATES." 

THERE WAS NO OBJECTION TO THE ADDITION OF THIS LANGUAGE,
REPRESENTATIVE JONES REMARKING THAT "IT IS SIMPLY CLARIFYING."  IBID.
BUT WHEN REPRESENTATIVE SAUTHOFF SOUGHT TO CHANGE THE AMENDMENT BY
SUBSTITUTING THE WORDS "LIMIT OR TEND TO LIMIT" FOR "PROHIBIT,"
REPRESENTATIVE JONES OBJECTED ON THE GROUND THAT NECESSARY MILK
CLASSIFICATION AND MINIMUM PRICING FOR THE PROTECTION OF OUTSIDE MILK
PRODUCERS REGULARLY SUPPLYING THEIR OWN MARKETING AREA WOULD "TEND TO
LIMIT" THE INTRODUCTION OF THEIR MILK INTO OTHER AREAS.  (FN17). 
IBID. 

THE HOUSE BILL, WITH THE LANGUAGE ADDED BY REPRESENTATIVE ANDRESEN'S
AMENDMENT, WENT TO THE SENATE.  ACCOMPANYING THE BILL TO THE FLOOR WAS
S. REP. NO. 1011, 74TH CONG., 1ST SESS., WHICH STATED, AT P. 11: 

"TO PREVENT ASSAULTS UPON THE PRICE STRUCTURE BY THE SPORADIC
IMPORTATION OF MILK FROM NEW PRODUCING AREAS, WHILE PERMITTING THE
ORDERLY AND NATURAL EXPANSION OF THE AREA SUPPLYING ANY MARKET BY THE
INTRODUCTION OF NEW PRODUCERS OR NEW PRODUCING AREAS, ORDERS MAY
PROVIDE THAT FOR THE FIRST 3 MONTHS OF REGULAR DELIVERY, PAYMENTS SHALL
BE MADE TO PRODUCERS NOT THERETOFORE SELLING MILK IN THE AREA COVERED
BY THE ORDER AT THE PRICE FIXED FOR THE LOWEST USE CLASSIFICATION. 
THIS IS THE ONLY LIMITATION UPON THE ENTRY OF NEW PRODUCERS - WHEREVER
LOCATED - INTO A MARKET, AND IT CAN REMAIN EFFECTIVE ONLY FOR THE
SPECIFIED 3-MONTH PERIOD."  (FN18) 

IN THE SENATE SEC. 8C(5)(G) WAS AMENDED, WITHOUT OBJECTION, 79 CONG.
REC. 11655, TO READ: 

"(G)  NO MARKETING AGREEMENT OR ORDER APPLICABLE TO MILK AND ITS
PRODUCTS IN ANY MARKETING AREA SHALL PROHIBIT OR IN ANY MANNER LIMIT,
EXCEPT AS PROVIDED FOR MILK ONLY IN SUBSECTION (D), THE MARKETING IN
THAT AREA OF ANY MILK OR PRODUCT THEREOF PRODUCED IN ANY PRODUCTION
AREA IN THE UNITED STATES."  (FN19) 

CONFERENCE REPORT EXPLAINED HOW THE DIFFERENCES BETWEEN THE HOUSE AND
SENATE VERSIONS WERE RESOLVED (H.R.  REP. NO. 1757, 74TH CONG., 1ST
SESS. 21): 

"  ...  THE CONFERENCE AGREEMENT RETAINS THE HOUSE PROVISION WITH
RESPECT TO PROHIBITIONS ON MARKETING OF BOTH MILK AND PRODUCTS OF
MILK.  THE CONFERENCE AGREEMENT ALSO DENIES THE AUTHORITY TO LIMIT IN
ANY MANNER THE MARKETING IN ANY AREA OF MILK PRODUCTS (BUTTER, CHEESE,
CREAM, ETC.) PRODUCED ANYWHERE IN THE UNITED STATES.  THE LANGUAGE
ADOPTED BY THE CONFERENCE AGREEMENT DOES NOT REFER TO MILK, AND SO DOES
NOT NEGATIVE THE APPLICABILITY TO MILK, FOR USE IN FLUID FORM OR FOR
MANUFACTURING PURPOSES, OF THE PROVISIONS OF THE BILL RELATING TO MILK,
SUCH AS THE PROVISIONS ON PRICE FIXING, PRICE ADJUSTMENT, PAYMENTS FOR
MILK, ETC." 

WHEN THE CONFERENCE AGREEMENT CAME TO THE FLOOR OF THE HOUSE,
REPRESENTATIVE JONES AGAIN EXPLAINED WHAT SEC. 8C(5)(G), WHEN TAKEN
TOGETHER WITH SEC. 8C(5)(D), MEANT (79 CONG. REC. 13022): 

"MR. SNELL.  ...  I DO NOT UNDERSTAND EXACTLY WHAT THIS MEANS, 'NO
MARKETING AGREEMENT OR ORDER APPLICABLE TO MILK AND ITS PRODUCTS,' AND
SO FORTH. 

"MR. JONES.  THAT SIMPLY APPLIED TO FLUID MILK.  YOU CANNOT MAKE ANY
LIMITATION AT ALL ON THE AMOUNT OF BUTTER OR CHEESE OR MILK PRODUCTS
THAT ARE SHIPPED FROM ANY ONE AREA TO ANOTHER, AND THE LIMITATION THAT
MAY BE APPLIED ON MILK IS ONLY SUCH LIMITATION AS PUTS EACH AREA ON AN
EQUALITY WITH THE OTHER AREAS AFTER A CERTAIN PERIOD OF ABOUT 2-1/2
MONTHS. 

     *         *         *         *         * 

"MR. SNELL.  HOW DOES THAT CHANGE THE SITUATION FROM THE PRESENT
LAW? 

"MR. JONES.  THE PROVISIONS OF THIS PARTICULAR BILL WOULD ENABLE THAT
AREA TO BE PROTECTED FROM BEING SWAMPED WITH FLUID MILK FROM THE
OUTSIDE, BOUGHT AT ANY OLD PRICE.  FOR INSTANCE, IF YOU DO NOT HAVE THE
PROTECTION OF THIS BILL THEY WOULD RUN INTO THE SAME TROUBLE THEY RAN
INTO IN THE NEW YORK MILK CASES, WHERE THEY WENT INTO NEW HAMPSHIRE AND
BOUGHT MILK AT A LOWER PRICE AND CAME IN AND BROKE DOWN YOUR MILK
AGREEMENTS.  UNDER THE PROVISIONS OF THIS BILL IF A PRICE WERE FIXED IN
THIS PARTICULAR AREA IN NEW YORK, THEN IF ANYONE BOUGHT MILK FROM AN
OUTSIDE AREA AND BROUGHT IT IN HE WOULD BE COMPELLED TO PAY THE
PRODUCER THE SAME PRICE THAT WAS BEING PAID THE PRODUCERS WITHIN THE
AREA AND COMPLY WITH ALL REGULATIONS AND REQUIREMENTS OF THAT AREA. 
FOR THE FIRST 2 MONTHS HE WOULD BE REQUIRED TO TAKE THE MANUFACTURER'S
PRICE." 

THIS HISTORY DISCLOSES THAT RATHER THAN BEING CONFINED, AS JUDGE
LEARNED HAND SUGGESTED IN KASS V. BRANNAN, 196 F.2D, AT 800, TO
PRACTICES AIMED AT THE EXCLUSION OF CHEESE AND OTHER MILK PRODUCTS FROM
EASTERN MARKETS, SEC. 8C(5)(G) WAS COMPENDIOUSLY INTENDED TO PREVENT
THE SECRETARY FROM SETTING UP, UNDER THE GUISE OF PRICE-FIXING
REGULATION, ANY KIND OF ECONOMIC TRADE BARRIERS, WHETHER RELATING TO
MILK OR ITS PRODUCTS.  WHENEVER THERE WAS AN ATTEMPT TO BROADEN THE
LANGUAGE OF SUBSECTION (G) TO ENCOMPASS "LIMITATIONS" AS WELL AS
"PROHIBITIONS," THOSE OPPOSING IT POINTED ONLY TO THE FACT THAT "LIMIT"
MIGHT BE READ AS INCLUDING THE TYPE OF PRICE FIXING COVERED BY
SUBSECTION (D) - I.E., ALLOWING NEW POOL PRODUCERS ONLY MANUFACTURING
USE PRICES FOR A LIMITED PERIOD - OR OTHER ATTEMPTS TO PUT OUTSIDE MILK
ON AN EQUAL FOOTING WITH POOL MILK.  ALTHOUGH THE WORDS OF SEC.
8C(5)(G), "IN ANY MANNER LIMIT," MUST BE TAKEN, IN THE CONTEXT OF THEIR
LEGISLATIVE HISTORY, AS REFERRING ONLY TO MILK PRODUCTS, THAT HISTORY
LIKEWISE MAKES IT CLEAR THAT AS REGARDS MILK THE WORD "PROHIBIT" REFERS
NOT MERELY TO ABSOLUTE OR QUOTA PHYSICAL RESTRICTIONS, BUT ALSO
ENCOMPASSES ECONOMIC TRADE BARRIERS OF THE KIND EFFECTED BY THE
SUBSIDIES CALLED FOR BY THIS "COMPENSATORY PAYMENT" PROVISION. 

                                  V.

THE INVALIDITY OF THE PRESENT COMPENSATORY

                  PAYMENT PROVISION. 

IN LIGHT OF THE LEGISLATIVE HISTORY OF SEC. 8C(5)(G) WE CONCLUDE THAT
THE COMPENSATORY PAYMENT PROVISION OF THE NEW YORK-NEW JERSEY MILK
MARKETING ORDER MUST FALL AS INCONSISTENT WITH THE POLICY EXPRESSED BY
CONGRESS IN THAT SECTION.  (FN20)  BECAUSE IT CONFLICTS WITH SEC.
8C(5)(G), THE PAYMENT PROVISION CANNOT BE JUSTIFIED UNDER THE GENERAL
TERMS OF SEC. 8C(7)(D), WHICH PREVENTS THE INCLUSION OF CONDITIONS THAT
ARE INCONSISTENT WITH EXPRESS STATUTORY PROVISIONS.  NOR IS THE
COMPENSATORY PAYMENT CLAUSE SAVED BY THE CIRCUMSTANCE THAT IN SOME
INSTANCES IT MAY ALSO FORTUITOUSLY OPERATE TO PUT THE HANDLERS OF POOL
AND NON-POOL MILK ON A COMPETITIVE PAR. AS HAS BEEN POINTED OUT (NOTE
13, SUPRA), THERE ARE OTHER MEANS AVAILABLE TO THE SECRETARY FOR
ACHIEVING THIS RESULT, WHILE AFFORDING PROTECTION TO POOL PRODUCERS,
WITHOUT IMPOSING ALMOST INSUPERABLE TRADE RESTRICTIONS ON THE ENTRY OF
NONPOOL MILK INTO A MARKETING AREA. 

THE GOVERNMENT CONTENDS THAT THE EFFECT OF SEC. 8C(5)(G) MAY NOT BE
CONSIDERED BY THIS COURT SINCE THAT PROVISION WAS NOT CITED BY THE
PETITIONERS IN THE ADMINISTRATIVE PROCEEDING IN THE DEPARTMENT OF
AGRICULTURE.  BUT EVEN ON THE GOVERNMENT'S PREMISE THAT AN UNAUTHORIZED
REGULATION SHOULD BE UPHELD BY THIS COURT MERELY BECAUSE THE PROVISION
PROHIBITING IT WAS NOT CITED IN THE ADMINISTRATIVE PROCEEDING IN WHICH
IT WAS ATTACKED, THIS CASE PRESENTS NO SUCH INSTANCE.  THE
ADMINISTRATIVE PETITION FILED WITH THE DEPARTMENT OF AGRICULTURE
ALLEGED THAT THE EFFECT OF THE COMPENSATORY PAYMENT CLAUSE AMOUNTED "TO
ESTABLISHING TARIFFS OR BARRIERS INTERFERING WITH THE FREE FLOW OF MILK
ACROSS STATE LINES," AN OBVIOUS REFERENCE TO THE PROHIBITION OF SEC.
8C(5)(G). 

IN ADDITION, THE GOVERNMENT CONTENDS THAT THE PETITIONERS HAD THE
CHOICE OF JOINING THE MARKET-WIDE POOL, IN WHICH CASE THEY WOULD NOT
HAVE BEEN SUBJECT TO THE COMPENSATORY PAYMENT PROVISIONS.  THEIR
ELECTION TO STAY OUT OF THE POOL, IT IS ARGUED, BARS ANY ATTACK ON THE
CONSEQUENCES OF THEIR CHOICE.  HOWEVER, SUCH AN "ELECTION" IS SURELY
ILLUSORY.  THE CONSEQUENCES OF JOINING THE POOL WOULD HAVE BEEN THAT
PETITIONERS WOULD HAVE BEEN FORCED TO PAY THE "BLEND PRICE" TO ALL
THEIR PRODUCERS WHEREVER LOCATED AND ACCOUNT TO THE PRODUCER SETTLEMENT
FUND FOR ALL MILK WHEREVER SOLD.  IN THESE CIRCUMSTANCES THE ELECTION
WAS NOT VOLUNTARY AS IN BOOTH FISHERIES V. INDUSTRIAL COMM'N, 271 U.S.
208, 211.  IT WAS COERCIVE AND, INDEED, NO ELECTION AT ALL. 

WHETHER FULL REGULATION OF THE PETITIONERS WOULD BE PERMISSIBLE UNDER
THE ACT IS A QUESTION WHICH WE NEED NOT REACH IN THIS CASE.  IF THE
SECRETARY CHOOSES TO IMPOSE SUCH REGULATION AS A CONSEQUENCE OF A
HANDLER'S INTRODUCING ANY MILK INTO A MARKETING AREA, THE VALIDITY OF
SUCH A PROVISION WOULD INVOLVE CONSIDERATIONS DIFFERENT FROM THOSE NOW
BEFORE US.  WITH RESPECT TO THESE PETITIONERS, HOWEVER, AND WITH REGARD
TO THE REGULATION HERE IN ISSUE, WE CONCLUDE THAT THE ACTION OF THE
SECRETARY OF AGRICULTURE EXCEEDED THE POWERS ENTRUSTED TO HIM BY
CONGRESS. 

THE SECRETARY OF COURSE REMAINS FREE TO PROTECT, IN ANY MANNER
CONSISTENT WITH THE PROVISIONS OF THE STATUTE, THE "BLEND PRICE" IN
THIS OR ANY OTHER MARKETING AREA AGAINST ECONOMIC CONSEQUENCES
RESULTING FROM THE INTRODUCTION OF OUTSIDE MILK.  WE DO NOT NOW DECIDE
WHETHER OR NOT ANY NEW REGULATION DIRECTED TO THAT END COULD BE MADE TO
APPLY RETROSPECTIVELY, OR WHETHER, IF IT COULD BE VALIDLY SO APPLIED,
THE PRESENTLY IMPOUNDED FUNDS COULD BE RESORTED TO PRO TANTO IN ITS
EFFECTUATION.  CF. UNITED STATES V. MORGAN, 307 U.S. 183.  "WHAT
FURTHER PROCEEDINGS THE SECRETARY MAY SEE FIT TO TAKE IN THE LIGHT OF
OUR DECISION, OR WHAT DETERMINATIONS MAY BE MADE BY THE DISTRICT COURT
IN RELATION TO ANY SUCH PROCEEDINGS, ARE NOT MATTERS WHICH WE SHOULD
ATTEMPT TO FORECAST OR HYPOTHETICALLY TO DECIDE."  MORGAN V. UNITED
STATES, 304 U.S. 1, 23, 26.   THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE PETITIONERS INSTITUTED THIS ACTION CHALLENGING THE VALIDITY
OF THE COMPENSATORY PAYMENT PROVISION BY FILING ADMINISTRATIVE
PETITIONS WITH THE SECRETARY OF AGRICULTURE PURSUANT TO SEC. 8C(15)(A)
OF THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, 7 U.S.C. SEC.
608C(15)(A).  THE HEARING EXAMINER SUSTAINED THE PETITIONERS'
CONTENTIONS ON THE AUTHORITY OF KASS V. BRANNAN, 196 F.2D 791, BUT THE
JUDICIAL OFFICER, ACTING ON BEHALF OF THE SECRETARY OF AGRICULTURE,
DISMISSED THE PETITIONS.    PETITIONERS THEN SOUGHT REVIEW OF THE
SECRETARY'S RULING IN THE DISTRICT COURT UNDER SEC. 8C(15)(B) OF THE
ACT.  THE REVIEW PROCEEDINGS WERE CONSOLIDATED WITH ENFORCEMENT ACTIONS
BROUGHT BY THE GOVERNMENT PURSUANT TO SEC. 8A(6) OF THE ACT.  THE
DISTRICT COURT, RELYING ON KASS V. BRANNAN, SUPRA, HELD THAT THE
PAYMENT PROVISION WAS INVALID.  183 F. SUPP. 80.  IT WAS THIS DECISION
THAT WAS REVERSED BY THE COURT OF APPEALS.  287 F.2D 726. 

FN2  A GENERAL REORGANIZATION OF CHAPTER IX OF TITLE 7 OF THE CODE OF
FEDERAL REGULATIONS DURING THE PAST YEAR HAS RESULTED IN REDESIGNATION
OF MOST OF THE MILK MARKETING ORDERS.  THE NEW YORK-NEW JERSEY ORDER
HAD PREVIOUSLY BEEN DESIGNATED AS MILK MARKETING ORDER NO. 27 AND HAD
BEEN FOUND AT 7 CFR SEC. 927.  THE SECTION REFERENCES AND THE CONTENTS
OF THE REGULATIONS AS QUOTED THROUGHOUT THIS OPINION ARE AS THEY WERE
IN EFFECT ON JANUARY 1, 1962. 

FN3  SECTION 8C(5)(A) PROVIDES: 

"(5)  MILK AND ITS PRODUCTS; TERMS AND CONDITIONS OF ORDERS. 

"IN THE CASE OF MILK AND ITS PRODUCTS, ORDERS ISSUED PURSUANT TO THIS
CONDITIONS, AND (EXCEPT AS PROVIDED IN SUBSECTION (7) OF THIS SECTION)
NO OTHERS: 

"(A)  CLASSIFYING MILK IN ACCORDANCE WITH THE FORM IN WHICH OR THE
PURPOSE FOR WHICH IT IS USED, AND FIXING, OR PROVIDING A METHOD FOR
FIXING, MINIMUM PRICES FOR EACH SUCH USE CLASSIFICATION WHICH ALL
HANDLERS SHALL PAY, AND THE TIME WHEN PAYMENTS SHALL BE MADE, FOR MILK
PURCHASED FROM PRODUCERS OR ASSOCIATIONS OF PRODUCERS.  SUCH PRICES
SHALL BE UNIFORM AS TO ALL HANDLERS, SUBJECT ONLY TO ADJUSTMENTS FOR
(1) VOLUME, MARKET, AND PRODUCTION DIFFERENTIALS CUSTOMARILY APPLIED BY
THE HANDLERS SUBJECT TO SUCH ORDER, (2) THE GRADE OR QUALITY OF THE
MILK PURCHASED, AND (3) THE LOCATIONS AT WHICH DELIVERY OF SUCH MILK,
OR ANY USE CLASSIFICATION THEREOF, IS MADE TO SUCH HANDLERS."  7 U.S.C.
SEC. 608C(5)(A). 

FN4  THESE PROVISIONS ESTABLISH CERTAIN PERFORMANCE REQUIREMENTS
AIMED AT INSURING THAT THE PLANT CONTINUES TO PROVIDE FLUID MILK TO THE
MARKETING AREA EVEN IN PERIODS OF SHORT SUPPLY.  THUS, IT IS PRIMARILY
THE HANDLERS WHOSE MAIN CONCERN IS THE MARKETING AREA WHO QUALIFY FOR
THE "POOL." 

FN5  "USE VALUE" IS THE PRICE THE HANDLER WOULD HAVE HAD TO PAY, AT
PREVAILING MINIMUM RATES, HAD HE PURCHASED HIS MILK AT A PRICE
REFLECTING ITS ULTIMATE DISPOSITION. 

FN6  SEE 7 CFR SECS. 1034 (DAYTON-SPRINGFIELD), 1037 (NORTH CENTRAL
OHIO), 1038 (ROCKFORD-FREEPORT), 1074 (SOUTHWEST KANSAS). 

FN7  THE PAYMENT PROVISION OF 7 CFR SEC. 1002.83 APPLIES ONLY IN
THOSE MONTHS WHEN THE VOLUME OF MILK SOLD FOR CLASS III USE EXCEEDS 15%
OF THE TOTAL POOL MILK REPORTED IN THE MARKETING AREA. 

FN8  THE ACT AUTHORIZES THE ESTABLISHMENT OF EITHER MARKETWIDE POOLS
OR INDIVIDUAL HANDLER POOLS.  SINCE THE LATTER REQUIRE ONLY THAT EACH
HANDLER PAY UNIFORM PRICES TO ALL THE PRODUCERS FROM WHICH HE BUYS, BUT
DOES NOT IMPOSE A UNIFORMITY REQUIREMENT AMONG THE VARIOUS HANDLERS,
THERE IS NO NEED FOR ADJUSTMENTS AMONG HANDLERS.  CONSEQUENTLY, NO
COMPENSATORY PAYMENT PROVISION IS INCLUDED IN ORDERS ESTABLISHING
INDIVIDUAL HANDLER POOLS.  SEE 7 CFR SECS. 1004 (PHILADELPHIA), 1005
(TRI-STATE), 1010 (WILMINGTON), 1039 (MILWAUKEE), 1041 (TOLEDO), 1044
(MICHIGAN UPPER PENINSULA), 1078 (NORTH CENTRAL IOWA), 1096 (NORTHERN
LOUISIANA), 1097 (MEMPHIS), 1102 (FORT SMITH), 1129 (AUSTIN-WACO), 1130
(CORPUS CHRISTI), 1134 (WESTERN COLORADO). 

FN9  COMPARE 7 CFR SECS. 1001.65 (GREATER BOSTON), 1003.62
(WASHINGTON, D.C.), 1006.65 (SPRINGFIELD, MASS.), 1007.65 (WORCESTER),
1008.54 (WHEELING), 1009.54 (CLARKSBURG, W.VA.), 1011.62 (APPALACHIAN),
1014.46 (SOUTHEASTERN NEW ENGLAND), 1015.46 (CONNECTICUT), 1016.62
(UPPER CHESAPEAKE BAY), 1030.61 (CHICAGO), 1031.70(B) (SOUTH BEND-LA
PORTE-ELKHART), 1036.84(B) (NORTHEASTERN OHIO), 1048.54 (GREATER
YOUNGSTOWN-WARREN), 1061.54 (ST. JOSEPH), 1068.70(B) (MINNEAPOLIS-ST.
PAUL), 1071.62(B) (NEOSHO VALLEY), 1072.55 (SIOUX FALLS-MITCHELL),
1106.55 (OKLAHOMA), 1125.70 (PUGET SOUND), 1126.70(D) (NORTH TEXAS),
1133.70(B) (INLAND EMPIRE). 

FN10  "AS STATED EARLIER HEREIN, ALL MILK WHICH IS ESTABLISHED TO BE
PRIMARILY ASSOCIATED WITH THE NEW YORK MILK MARKETING AREA UNDER THE
STANDARDS PRESCRIBED BY THE ORDER IS INCLUDED IN THE NEW YORK POOL. 
CONVERSELY, THE NON-POOL MILK WHICH ENTERS THE MARKETING AREA FOR FLUID
USE ORIGINATES FROM PLANTS WHICH ARE NOT SUFFICIENTLY ASSOCIATED WITH
THE NEW YORK MARKET TO HAVE THEIR MILK IN THE POOL.  SUCH PLANTS HAVE
THEIR PRIMARY INTERESTS IN OTHER FLUID MARKETS OR SPECIALIZED
MANUFACTURING USES AND FREQUENTLY HAVE MORE MILK THAN IS REQUIRED FOR
THESE PRIMARY PURPOSES.  IT IS THIS SURPLUS MILK AT NON-POOL PLANTS
WHICH CAN BE 'DUMPED' INTO THE NEW YORK MARKET FOR FLUID USE, PROVIDED
ONLY THAT THE PLANT AND THE MILK HAVE MARKETING AREA HEALTH APPROVAL. 
THE OPERATOR OF SUCH A NON-POOL PLANT HAS A CHOICE OF USING THE EXCESS
MILK FOR SURPLUS USES (ORDINARILY IN THE MANUFACTURE OF VARIOUS MILK
PRODUCTS) OR OF SENDING IT TO THE NEW YORK MARKETING AREA FOR FLUID
USES.  IN MAKING THIS DECISION HE WILL COMPARE THE RESPECTIVE NET
RETURNS TO HIM FOR THIS SURPLUS MILK AND WILL NATURALLY SELECT THE
FLUID ALTERNATIVE, FOR IT WILL YIELD THE GREATER RETURN.  IN THE
ABSENCE OF CLASSIFIED PRICING, HIS COST, AT SOURCE, FOR THE EXCESS MILK
REMAINS EXACTLY THE SAME WHETHER HE USES IT FOR SURPLUS DISPOSITION OR
FOR FLUID USE.  THE POOL PLANT OPERATOR ON THE OTHER HAND HAS NO SUCH
ADVANTAGE FOR HE PAYS A HIGHER CLASSIFIED PRICE, AT SOURCE, IF HE SELLS
THE MILK IN THE MARKET AREA FOR FLUID USE (CLASS I-A OR II) THAN IF HE
DISPOSES OF IT FOR SURPLUS MANUFACTURING USES (CLASS III). 

"IF THIS ARTIFICIAL ADVANTAGE IN FAVOR OF SURPLUS NON-POOL MILK AT THE
PLANT OF ORIGIN IS TO BE EFFECTIVELY REMOVED, AS IT MUST BE, THE MILK
MUST BE TREATED AND EVALUATED FOR WHAT IT ACTUALLY IS, NAMELY SURPLUS
MILK IN THE MILKSHED.  IF NEW YORK MARKETING AREA DISPOSITION WERE NOT
AVAILABLE FOR THIS SURPLUS, THE NON-POOL HANDLER COULD DERIVE FROM IT
ONLY ITS SURPLUS VALUE.  THIS SURPLUS VALUE IS ITS TRUE VALUE OR
'OPPORTUNITY COST' AND SUCH SURPLUS VALUE SHOULD BE USED AS THE
SUBTRAHEND IN THE FORMULA FOR COMPENSATION PAYMENTS ON NON-POOL MILK
FROM PLANTS NOT SUBJECT TO A FEDERAL ORDER. 

"THE CLASS III PRICE UNDER THE NEW YORK ORDER IS THE CLASS PRICE
WHICH IS PAYABLE, AT SOURCE, FOR POOL MILK UNDER THE NEW YORK ORDER
WHEN USED FOR MOST SURPLUS USES.  IT IS EXPRESSLY DESIGNED TO FIX A
PROPER CLASSIFIED VALUE, AT SOURCE, FOR SURPLUS MILK.  THE CLASS III
PRICE CLOSELY APPROXIMATES THE AMOUNT PAID IN THE NORTHEAST TO FARMERS
NOT UNDER THE NEW YORK ORDER FOR SO MUCH OF THEIR MILK AS IS USED FOR
GENERAL MANUFACTURE. 

"IT IS THEREFORE A DEPENDABLE INDICATOR OF THE VALUE OF SURPLUS MILK
AT SOURCE.  IF A NON-POOL HANDLER, FOR HIS OWN REASONS, CHOOSES TO PAY
MORE THAN ITS TRUE MARKET VALUE, AT SOURCE, FOR SURPLUS MILK WHICH HE
SENDS TO THE NEW YORK AREA, THE POOL SHOULD NOT UNDERWRITE THIS
UNNECESSARY COST, PARTICULARLY SINCE THE PREMIUM CAN BE USED TO OUTBID
POOL HANDLERS FOR MILK, AS PREVIOUSLY SHOWN." 

FN11  THE FACT THAT PETITIONERS WERE PAYING MORE FOR THEIR MILK THAN
THE CLASS I PRICE IN THE NEW YORK-NEW JERSEY MARKETING AREA LEAVES NO
ROOM FOR ANY SUGGESTION THAT THEY WILL BE RECEIVING A "WINDFALL" IF IT
IS ULTIMATELY ADJUDGED THAT THEY ARE ENTITLED TO HAVE RETURNED THE FULL
AMOUNT OF THEIR COMPENSATORY PAYMENTS. 

FN12  THE TOTAL AMOUNT OF THE COMPENSATORY PAYMENTS INVOLVED IN THIS
LITIGATION, EMBRACING A PERIOD OF APPROXIMATELY FOUR YEARS, WAS SOME
$617,000 AS TO LEHIGH VALLEY AND $108,000 AS TO SUNCREST. 

FN13  SEVERAL OF THE MARKETING ORDERS MAKE THE COMPENSATORY PAYMENT
EQUAL THE DIFFERENCE BETWEEN THE CLASS I PRICE IN THE MARKETING AREA
AND THE ACTUAL COST OF THE NONPOOL MILK.  SEE 7 CFR SECS. 1042.60
(MUSKEGON), 1128.62(B) (CENTRAL WEST TEXAS).  IN SOME MARKETING AREAS
THE HANDLER WHO DEALS IN NONPOOL MILK IS PERMITTED TO ELECT EACH MONTH
BETWEEN PAYING THE FLUID MILK-SURPLUS USE DIFFERENTIAL AND PAYING THE
DIFFERENCE BETWEEN HIS ACTUAL COST AND THE MINIMUM REGIONAL PRICE FOR
CLASS I MILK.  SEE 7 CFR SECS. 1013.62 (SOUTHEASTERN FLORIDA), 1033.61
(GREATER CINCINNATI), 1035.63 (COLUMBUS, OHIO), 1040.66 (SOUTHERN
MICHIGAN), 1043.84 (UPSTATE MICHIGAN), 1045.83 (NORTHEASTERN
WISCONSIN), 1047.62 (FORT WAYNE), 1064.61 (GREATER KANSAS CITY),
1065.62 (NEBRASKA-WESTERN IOWA), 1067.61 (OZARKS), 1069.62 (DULUTH
SUPERIOR), 1073.62 (WICHITA), 1094.62 (NEW ORLEANS), 1098.92
(NASHVILLE), 1103.62 (CENTRAL MISSISSIPPI), 1105.62 (MISSISSIPPI
DELTA), 1107.61 (MISSISSIPPI GULF COAST), 1131.62 (CENTRAL ARIZONA),
1135.62 (COLORADO SPRINGS-PUEBLO), 1136.62 (GREAT BASIN), 1137.62
(EASTERN COLORADO). 

OTHER MARKETING ORDERS, APPLICABLE IN SOME AREAS, ASSESS A
COMPENSATORY PAYMENT EQUAL TO THE DIFFERENCE BETWEEN THE "BLEND PRICE"
PAID IN THE AREA FOR POOL MILK AND THE CLASS I PRICE, THUS TREATING THE
HANDLER OF NONPOOL MILK AS IF HE WERE A MEMBER OF THE POOL WITH RESPECT
TO SUCH MILK AS HE INTRODUCED INTO THE MARKETING AREA. 

WHERE THIS DIFFERENTIAL IS ACCEPTED AS THE MEASURE OF THE
COMPENSATORY PAYMENT IT IS DONE ONLY IN THOSE MONTHS WHEN THE SURPLUS
IS LOWEST.  IN THE SPRING AND SUMMER MONTHS THE FLUID MILK-SURPLUS USE
DIFFERENTIAL IS EXACTED.  SEE 7 CFR SECS. 1032.55(B) (SUBURBAN ST.
LOUIS, AUGUST-FEBRUARY), 1046.55(B) (OHIO VALLEY, AUGUST-MARCH),
1049.55(B) (INDIANAPOLIS, AUGUST-MARCH), 1062.55(B) (ST. LOUIS, AUGUST
FEBRUARY), 1063.63(B) (QUAD CITIES-DUBUQUE, JULY-NOVEMBER), 1066.57(A)
(SIOUX CITY, AUGUST-FEBRUARY), 1070.63(B) (CEDAR RAPIDS-IOWA CITY, JULY
NOVEMBER), 1075.63(B) (BLACK HILLS, JULY-MARCH), 1076.63(B) (EASTERN
SOUTH DAKOTA, JULY-FEBRUARY), 1079.63(B) (DES MOINES, JULY-MARCH),
1090.54(B) (CHATTANOOGA, AUGUST-FEBRUARY), 1095.70(E)(2) (LOUISVILLE
LEXINGTON, OCTOBER-DECEMBER), 1099.62(A) (PADUCAH, AUGUST-MARCH),
1101.93(B) (KNOXVILLE, AUGUST-FEBRUARY), 1104.53(B) (RED RIVER VALLEY,
AUGUST-JANUARY), 1108.54(B) (CENTRAL ARKANSAS, AUGUST-FEBRUARY),
1127.65(B) (SAN ANTONIO, JANUARY AND AUGUST), 1132.63(B) (TEXAS
PANHANDLE, JULY-FEBRUARY). 

THE LATTER METHOD TREATS THE HANDLER OF NONPOOL MILK WHO BUYS AT A
PRICE IN EXCESS OF THE BLEND PRICE AS IF HE WERE A MEMBER OF THE POOL
SINCE A HANDLER IN THE POOL MAY, IF HE CHOOSES, PAY HIS PRODUCER MORE
THAN THE "BLEND PRICE" SET BY THE MARKET ADMINISTRATOR, SEE STARK V.
WICKARD, 321 U.S. 288, 291, BUT MUST STILL ACCOUNT TO THE PRODUCER
SETTLEMENT FUND AS IF HE HAD PAID ONLY THE "BLEND PRICE."  BY TREATING
NONPOOL MILK IN THE SAME MANNER, THE SECRETARY MIGHT BE ABLE TO JUSTIFY
A COMPENSATORY PAYMENT EQUAL TO THE DIFFERENCE BETWEEN THE NONPOOL
MILK'S "USE VALUE" AND THE "BLEND PRICE," THOUGH WE DO NOT DECIDE THE
QUESTION.  SEE GENERALLY HUTT, RESTRICTIONS ON THE FREE MOVEMENT OF
FLUID MILK UNDER FEDERAL MILK MARKETING ORDERS, 37 U. DET.  L.J. 525,
564-577 (1960). 

THE SUGGESTION THAT A NONPOOL HANDLER WOULD BE GIVEN A COMPETITIVE
ADVANTAGE UNDER EITHER OF THESE METHODS BECAUSE, IN THE WORDS OF THE
JUDICIAL OFFICER, HE DOES NOT HAVE "TO EQUALIZE HIS UTILIZATION" AS DO
POOL HANDLERS IS DEMONSTRABLY UNSOUND.  INSOFAR AS THE HANDLERS' SALE
OF MILK IS CONCERNED, NEITHER POOL NOR NONPOOL HANDLERS ARE REQUIRED TO
SHARE OR "EQUALIZE" THEIR PROCEEDS WITH OTHERS.  TO THE EXTENT THAT
THIS CONTENTION RELATES TO THE HANDLERS' PURCHASE OF MILK AND IS MEANT
TO SUGGEST THAT NONPOOL HANDLERS WILL FIND IT EASIER TO BUY MILK
BECAUSE THEY WILL BE ABLE TO PAY HIGHER PRICES TO THEIR PRODUCERS, THE
EXACTION OF A CLASS I-BLEND PRICE PAYMENT WOULD EFFECTIVELY DISCOURAGE
PURCHASES IN EXCESS OF THE BLEND PRICE (WHICH IS WHAT THE POOL'S
PRODUCERS ARE PAID).  AND THE ASSERTION THAT THE POOL "CARRIES THE
SURPLUS BURDEN FOR OUTSIDE HANDLERS" IS BASED ON THE SAME MISTAKEN
REASONING AS UNDERLIES THE SECRETARY'S DETERMINATION TO RETAIN THE
CLASS I-CLASS III PAYMENT AFTER KASS V. BRANNAN, SUPRA.  SEE PP. 84-86,
SUPRA. 

FN14  A HIGHLY SIMPLIFIED ILLUSTRATION SERVES TO CLARIFY THIS EFFECT;
IF THE CLASS I PRICE ON A GIVEN DATE IS $6 PER CWT. AND THE CLASS III
PRICE IS $3 PER CWT., AND IF 2,000 CWT. ARE CONSUMED AS FLUID MILK AND
ANOTHER 2,000 CWT. ARE PRODUCED BY THE DAIRY FARMERS IN THE AREA AND
UTILIZED FOR SURPLUS USES, THE COMPUTATION OF THE BLEND PRICE WOULD BE
AS FOLLOWS:

                                  TABLE A. 

CLASS I          2,000 X 6.00 EQUALS   12,000 

CLASS III        2,000 X 3.00 EQUALS    6,000 

TOTALS           4,000 AT         18,000 

BLEND PRICE                    $4.50 

IF 500 CWT. ARE THEN BROUGHT IN FROM THE OUTSIDE AS NONPOOL MILK AND
SOLD FOR CLASS I USE, 500 CWT. OF THE POOL MILK WILL DROP INTO CLASS
III (SINCE THE FLUID MILK DEMAND REMAINS RELATIVELY CONSTANT):

                                  TABLE B. 

CLASS I          1,500 X 6.00 EQUALS    9,000 

CLASS III   2,500 X 3.00 EQUALS    7,500 

TOTALS           4,000 AT            16,500 

BLEND PRICE                    $4.125 

THE PRODUCERS IN THE POOL WOULD THEREBY BE RECEIVING $.375 LESS PER
CWT. THAN HAD THE NONPOOL MILK STAYED OUT ALTOGETHER.  BY DISTRIBUTING
TO THEM (THROUGH THE EXACTION MADE OF NONPOOL HANDLERS) THE DIFFERENCE
BETWEEN CLASS I AND CLASS III PRICES MULTIPLIED BY THE AMOUNT OF
NONPOOL MILK SOLD IN THE AREA AS CLASS I, THAT DEFICIT IS RESTORED. 
THUS:                                       TABLE C. 

(NONPOOL MILK SOLD AS CLASS I) X (CLASS I MINUS CLASS III)

                   EQUALS 

(LOSS TO POOL BY DISPLACEMENT OF CLASS I OUTLET)

                                    OR 

500 X 3.00 EQUALS 1,500    1,500 DIVIDED BY 4,000 CWT. EQUALS .375
PER CWT. 

THE SECRETARY'S FORMULA, THEREFORE, PRECISELY ACCOMPLISHES THE
RESTORING TO THE POOL'S PRODUCERS WHATEVER THEY HAVE LOST BY REASON OF
THE OCCUPATION OF THEIR CLASS I OUTLET BY THE NONPOOL MILK. 

IT SHOULD BE NOTED THAT THE ACTUAL COMPUTATION OF THE BLEND PRICE, AS
SET OUT IN 7 CFR SEC. 1002.66, ACHIEVES THIS SAME RESULT IN AN INDIRECT
FASHION.  INSTEAD OF COMPUTING THE BLEND PRICE WITHOUT REFERENCE TO ANY
NONPOOL MILK, THE SECRETARY'S FORMULA INCLUDES THE COMPENSATORY
PAYMENTS WITHIN THE LIST OF MINIMUM-PRICE OBLIGATIONS THAT ARE ADDED IN
DETERMINING THE TOTAL PROCEEDS FOR MILK SOLD WITHIN THE AREA.  7 CFR
SEC. 1002.66(C).  BUT THE BLEND PRICE IS THEN COMPUTED BY DIVIDING THIS
SUM BY THE AMOUNT OF "MILK DELIVERED BY PRODUCERS," I.E., POOL MILK. 
CONSEQUENTLY, THE ACTUAL COMPUTATION OF THE UNIFORM PRICE UNDER THE
ABOVE ILLUSTRATION WOULD BE AS FOLLOWS:

                                    TABLE D. 

CLASS I                                    1,500 X 6.00 EQUALS 9,000 

CLASS III                                  2,500 X 3.00 EQUALS
7,500 

COMPENSATORY PAYMENTS (NONPOOL MILK)      500 X 3.00 EQUALS    1,500 

TOTALS (POOL MILK)                 4,000 AT              18,000 

BLEND PRICE                                            $4.50 

THE FUNDS PAID INTO THE PRODUCER SETTLEMENT FUND BY THE HANDLERS
DEALING IN NONPOOL MILK ARE THEN AVAILABLE TO THE POOL HANDLERS, WHOSE
CREDITS FROM THE FUND WILL BE LARGER TO THE EXTENT THAT THEY HAVE BEEN
FORCED TO PAY A HIGHER BLEND PRICE. 

FN15  "MR. ANDRESEN.  IS THERE ANYTHING IN THE MILK SECTION OF THE
BILL WHICH GIVES THE SECRETARY AUTHORITY TO SET UP TRADE BARRIERS AND
STOP THE FREE FLOW IN COMMERCE THROUGHOUT THE UNITED STATES OF DAIRY
PRODUCTS? 

"MR. JONES.  NO. THERE IS NOTHING IN THE BILL THAT WOULD AUTHORIZE
THAT.  THE SECRETARY MAY REQUIRE THAT IN CROSSING FROM ONE REGION TO
ANOTHER THAT THEY COMPLY WITH THE SAME CONDITIONS WHICH THE FARMERS AND
DISTRIBUTORS COMPLY WITH IN THAT REGION. 

"MR. ANDRESEN.  THAT IS, SANITARY REGULATIONS? 

"MR. JONES.  SANITARY AND OTHER UNIFORM REGULATIONS; BUT HE CANNOT
SET UP ANY TRADE BARRIERS WHICH WOULD KEEP THEM OUT. 

"MR. ANDRESEN.  A GREAT MANY MEMBERS HAVE INQUIRED ABOUT THAT
FEATURE, AND I JUST WANTED THE GENTLEMAN TO BRING THAT OUT. 

"MR. JONES.  THE AMENDMENTS REQUIRE A UNIFORM PRICE AND UNIFORM SET
OF CONDITIONS AND FAIR DISTRIBUTION.  IN THE FIRST PLACE, I DO NOT
BELIEVE WE COULD GIVE AUTHORITY TO SET UP THESE BARRIERS.  IN THE
SECOND PLACE, THE BILL DOES NOT DO THAT.  IT SIMPLY ENABLES THEM TO
HAVE A PROGRAM IN ONE OF THESE REGIONS, AND IN DEVELOPING THESE ORDERS
WHICH THE SECRETARY ISSUES, HE USES THE WORD 'REGION' WHEREVER
POSSIBLE.  THOSE ON THE OUTSIDE MUST COME INTO THAT." 

FN16  THE PROPOSED AMENDMENT READ: 

"SEC. - (B)  NO MARKETING AGREEMENT, ORDER, OR REGULATION SHALL
CONTAIN ANY TERM OR PROVISION WHICH WILL TEND TO RESULT IN PREVENTING
OR HINDERING ANY AGRICULTURAL COMMODITY OR PRODUCT THEREOF PRODUCED IN
ANY REGION OR AREA OF THE UNITED STATES FROM BEING BROUGHT INTO OR SOLD
IN ANY OTHER SUCH REGION OR AREA, OR SHALL HAVE THE EFFECT OF
SUBSIDIZING THE PRODUCTION OR SALE OF ANY AGRICULTURAL COMMODITY OR
PRODUCT THEREOF IN ANY SUCH REGION OR AREA, IN SUCH A MANNER THAT SUCH
COMMODITY OR PRODUCT THEREOF WILL TEND TO BE SOLD IN SUCH OTHER REGION
OR AREA AT PRICES WHICH WILL TEND TO DEPRESS PRICES THEREIN OF SUCH
COMMODITY OR PRODUCT THEREOF." 

FN17  "MR. JONES.  MR. CHAIRMAN, THE ADOPTION OF THE AMENDMENT OF THE
GENTLEMAN FROM WISCONSIN WOULD ABSOLUTELY WRECK THE WHOLE MILK
PROGRAM.  IN ORDER TO GET AWAY FROM THE TERRIFIC CONDITIONS THAT HAVE
PREVAILED IN THE MILK INDUSTRY THERE IS PROVIDED IN THE BILL AUTHORITY
TO FIX A MINIMUM PRICE TO PRODUCERS.  THAT, AT LEAST IN A MEASURE,
WOULD LIMIT OR TEND TO LIMIT SHIPMENT, AND YET THE GENTLEMAN, I AM
SURE, DOES NOT WANT TO INTERFERE WITH THE PRICE TO PRODUCERS.  THEN IT
IS A UNIVERSAL CUSTOM IN THE MARKETING OF MILK TO CLASSIFY MILK.  THIS
IN A WAY, IS A LIMITATION  ...  . 

"MR. BOILEAU.  ...  MR. CHAIRMAN, I SHOULD LIKE TO ASK THE
DISTINGUISHED CHAIRMAN OF THE COMMITTEE IF IN HIS OPINION THERE IS
ANYTHING IN THIS BILL THAT GIVES TO THE SECRETARY OF AGRICULTURE OR TO
ANYONE ELSE ANY POWER TO RESTRICT THE FREE FLOW OF MILK OR ANY OTHER
COMMODITY BETWEEN THE VARIOUS STATES? 

"MR. JONES.  NO; THERE IS NOTHING IN IT THAT WILL DO THAT.  THE ONLY
TENDENCY IS TO MAKE ALL SECTIONS COMPLY WITH THE SAME RULES. 

     *          *         *        *          * 

"MR. HULL.  ...  MR. CHAIRMAN, IF THERE IS NOTHING IN THIS BILL WHICH
WOULD AUTHORIZE THE SECRETARY OF AGRICULTURE OR ANY SUBORDINATE SO TO
LIMIT TRANSPORTATION OR SHIPMENT OF DAIRY PRODUCTS FROM ONE STATE INTO
ANOTHER, THEN THE AMENDMENT OF THE GENTLEMAN FROM MINNESOTA AS AMENDED
BY THE AMENDMENT OF THE GENTLEMAN FROM WISCONSIN (MR. SAUTHOFF) CAN DO
NO HARM. 

"THE THREE STATES OF MINNESOTA, IOWA, AND WISCONSIN, PRODUCE ABOUT 45
PERCENT OF THE BUTTER MADE IN THIS COUNTRY AND WE ARE INTERESTED IN
THIS MATTER OF THE SHIPMENT OF DAIRY PRODUCTS TO OTHER STATES. 

"MR. JONES.  MR. CHAIRMAN, WILL THE GENTLEMAN YIELD? 

"MR. HULL.  I YIELD. 

"MR. JONES.  WOULD THE GENTLEMAN OBJECT TO THE REQUIREMENT THAT
CHICAGO DEALERS PAY THE WISCONSIN PRODUCER A MINIMUM PRICE? 

"MR. HULL.  NOT AT ALL. 

"MR. JONES.  THAT CERTAINLY WOULD TEND TO LIMIT." 

FN18  THE "3-MONTH PERIOD" PROVISION HERE REFERRED TO IS THE PRESENT
SEC. 8C(5)(D) WHICH AUTHORIZES THE SECRETARY TO SET THE SURPLUS-USE
PRICE AS THE PRICE TO BE PAID TO ANY NEW PRODUCER WHO ENTERS THE POOL. 
IN THE FINAL VERSION OF THE ACT THE INTRODUCTORY PERIOD WAS REDUCED TO
TWO MONTHS. 

FN19  "SUBSECTION (D)" IS SEC. 8C(5)(D).  SEE NOTE 18, SUPRA. 

FN20  WHILE WE NEED NOT REACH THE POINT, WE WOULD HAVE DIFFICULTY IN
CONCLUDING, AS DID THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN KASS
V. BRANNAN, SUPRA, THAT THE PROVISIONS OF SEC. 8C(5)(A) PRECLUDED, IN
THEMSELVES, THE PROMULGATION OF THE PRESENT COMPENSATORY PAYMENT
PROVISION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

I FIND IT IMPOSSIBLE TO AGREE WITH THE COURT'S HOLDING OR OPINION. 
IN 1936, IN UNITED STATES V. BUTLER, (FN1) THIS COURT TEMPORARILY
PARALYZED THE NATIONAL FARM RECOVERY PROGRAM BY HOLDING IMPORTANT PARTS
OF THE AGRICULTURAL ADJUSTMENT ACT OF 1933 UNCONSTITUTIONAL AND BY
CASTING GRAVE DOUBTS UPON THE REMAINDER OF THAT ACT WHICH HAD BEEN
PASSED AT THE BOTTOM OF THE GREAT DEPRESSION FOR THE EXPRESS PURPOSE OF
ALLEVIATING THE DESPERATE ECONOMIC PLIGHT OF THE AMERICAN FARMER. 
FOLLOWING THAT DECISION CONGRESS, IN 1937, WITH UNUSUAL PROMPTNESS
ADOPTED ANOTHER NATIONAL FARM PROGRAM REAFFIRMING THE BROAD AND
COMPREHENSIVE POWERS IT HAD PREVIOUSLY GIVEN THE SECRETARY OF
AGRICULTURE TO DEVELOP AGRICULTURAL MARKETING PLANS FOR THE PURPOSE OF
RAISING THE INCOME OF FARMERS.  (FN2)  THE PHILOSOPHY OF THIS LATER ACT
WAS NOT COMPETITION AS IN THE SHERMAN ACT BUT GOVERNMENTAL PRICE FIXING
AS IN THE ORIGINAL 1933 AGRICULTURAL ADJUSTMENT ACT, THE NATIONAL
INDUSTRIAL RECOVERY ACT, AND A HOST OF OTHER CONTEMPORANEOUS ACTS, ALL
OF WHICH WERE DESIGNED TO RAISE THE INCOME AND PURCHASING POWER OF
WORKERS AND FARMERS.  TODAY SOME 26 YEARS AFTER THE BUTLER DECISION
THIS COURT AGAIN PROJECTS ITSELF ACROSS THE PATH OF THE NATIONAL FARM
PROGRAM BY READING CONGRESS' 1937 RE-ENACTMENT AS DESIGNED TO ENCOURAGE
COMPETITION RATHER THAN TO HELP FARMERS BY GOVERNMENTAL PRICE FIXING,
AND ON THIS BASIS STRIKES DOWN A VITAL ELEMENT OF MANY OF THE MILK
MARKETING ORDERS SET UP UNDER THE 1937 ACT WHILE RAISING CLOUDS OF
CONFUSION AND UNCERTAINTY AS TO THE VALIDITY OF MANY OTHERS.  ALTHOUGH
THE BLOW TO THE PRESENT FARM PROGRAM IS NOT SO DEVASTATING AS THE ONE
INFLICTED ON THE ORIGINAL ACT BY THE BUTLER DECISION, I THINK THAT IN
ULTIMATE EFFECT THE HARMFUL CONSEQUENCES OF THE TWO DECISIONS WILL
DIFFER ONLY IN DEGREE.  IT IS MY BELIEF THAT THE ORDER OF THE SECRETARY
WHICH THE COURT STRIKES DOWN WAS SET UP IN FAITHFUL ADHERENCE TO THE
ACT'S PURPOSE TO RAISE THE PRICES THAT FARMERS RECEIVE FOR THEIR
PRODUCTS AND THAT THE COURT'S ACTION WILL TEND TO HAVE PRECISELY THE
OPPOSITE EFFECT OF DEPRESSING THOSE PRICES.  I HAVE NO DOUBT BUT THAT
THE COURT'S DECISION WILL ENABLE SOME HANDLERS TO REAP GREATER PROFITS
BUT I REGRET TO SAY THAT THIS IS BOUND TO BE AT THE EXPENSE OF THE
FARMERS THEMSELVES - FOR WHOSE BENEFIT THE NATIONAL PROGRAM WAS
PRIMARILY PASSED.  CERTAINLY THIS IS TRUE OF THE MORE THAN $700,000
WHICH THE COURT'S DECISION TODAY WILL ALLOW THE TWO HANDLERS HERE TO BE
PAID WHICH OF NECESSITY MUST COME OUT OF THE POCKETS OF THE DAIRY
FARMERS WHERE THIS MILK WAS SOLD. 

THE BASIC FEATURES OF THE ACT UNDER WHICH THE SECRETARY PROMULGATED
THE REGULATION WHICH THE COURT TODAY STRIKES DOWN WERE FIRST ENACTED IN
1935 (FN3) WHEN THE DAIRY INDUSTRY WAS NEAR THE BOTTOM OF ITS
DEPRESSION AND DAIRY FARMERS IN MANY PARTS OF THE COUNTRY WERE NOT EVEN
RECEIVING THE ACTUAL COST OF PRODUCING THE MILK THEY SOLD.  THESE 1935
PROVISIONS WERE THEMSELVES AMENDMENTS TO THE ORIGINAL 1933 AGRICULTURAL
ADJUSTMENT ACT, AND WERE DESIGNED TO SPELL OUT MORE CLEARLY AND TO SOME
EXTENT ADD TO THE BROAD POWERS WHICH THE ORIGINAL 1933 ACT HAD GIVEN
THE SECRETARY TO CORRECT THE "SEVERE AND INCREASING DISPARITY BETWEEN
THE PRICES OF AGRICULTURAL AND OTHER COMMODITIES" BY RAISING "THE
PURCHASING POWER OF FARMERS" AND STABILIZING THE VALUE OF THE
"AGRICULTURAL ASSETS SUPPORTING THE NATIONAL CREDIT STRUCTURE."  (FN4) 

THE CAUSES OF THE LOW PRICES TO DAIRY FARMERS WHICH LED CONGRESS TO
GRANT THESE BROAD POWERS WERE, LIKE THE DETAILS OF THE OPERATION OF THE
MILK BUSINESS ITSELF, INCREDIBLY COMPLEX.  IN THE MAIN, HOWEVER, THESE
LOW PRICES WERE WIDELY ATTRIBUTED TO A VICIOUS AND DESTRUCTIVE
COMPETITION AMONG DAIRY FARMERS FOR FLUID MILK SALES WHICH BROUGHT
FARMERS HIGHER PRICES THAN DID SALES AS SURPLUS MILK FOR MANUFACTURING
BUTTER, CHEESE AND OTHER MILK PRODUCTS.  (FN5)  IN ORDER TO BRING AN
END TO THIS COMPETITION WHICH WAS PUSHING FARMERS TO THE WALL, THE 1935
ACT GAVE THE SECRETARY SPECIFIC POWER TO SET UP REGIONAL MARKETING
AREAS WITHIN WHICH HE COULD, FOR THE GOVERNMENT, FIX MINIMUM PRICES
HANDLERS WOULD HAVE TO PAY TO FARMERS FOR THE VARIOUS USES OF MILK,
REQUIRE THAT THOSE MINIMUM PRICES BE PAID TO A POOL FOR THE AREA AND
DISTRIBUTE THE PROCEEDS OF THE POOL SO THAT EACH FARMER SELLING MILK
THROUGH THE POOL WOULD ULTIMATELY BE PAID AT THE SAME UNIFORM RATE OR
"BLEND PRICE" REGARDLESS OF THE USE TO WHICH HIS PARTICULAR MILK WAS
PUT.  (FN6)  IN THE ORIGINAL 1935 ACT THE SECRETARY WAS DIRECTED TO FIX
PRICES AT "PARITY" - A LEVEL DESIGNED BY CONGRESS TO INSURE THAT
FARMERS GENERALLY WOULD RECEIVE A HIGHER PRICE FOR THEIR PRODUCTS THAN
THEY COULD GET IN AN OPEN, COMPETITIVE MARKET.  (FN7)  THE 1937
REENACTMENT WENT BEYOND EVEN THIS, HOWEVER, AND GAVE THE SECRETARY
POWER TO FIX PRICES ABOVE THIS PARITY LEVEL IN ORDER TO INSURE THAT
DAIRY FARMERS IN PARTICULAR WOULD RECEIVE A HIGH ENOUGH PRICE FOR THEIR
PRODUCTS.  (FN8)  IN ORDER TO MAKE SURE THAT THE SECRETARY HAD ENOUGH
POWER TO RAISE PRICES ABOVE THE COMPETITIVE LEVEL THE SECRETARY WAS
ALSO AUTHORIZED TO ISSUE ORDERS "INCIDENTAL  ...  AND NECESSARY TO
EFFECTUATE" THE SPECIFIC PRICE-FIXING AND OTHER POWERS GIVEN TO HIM. 
(FN9)  THUS IT CAN BE SEEN THAT THE GENERAL SCHEME OF THE ACT WAS TO
RAISE PRICES TO FARMERS BY GOVERNMENTAL FIXING OF MINIMUM PRICES FOR
DAIRY PRODUCTS WITHIN SPECIFIC REGIONAL AREAS, THEREBY ABANDONING TO
THAT EXTENT THE SYSTEM OF PRICE FIXING BY COMPETITION. 

IN ACCORDANCE WITH THIS GENERAL PLAN AND UNDER THE AUTHORITY OF THE
ACT, THE SECRETARY HAS PROCEEDED AFTER FULL HEARINGS WITHIN THE VARIOUS
REGIONS TO SET UP A NUMBER OF REGIONAL MILK MARKETING POOLS, ONE OF
WHICH IS THE NEW YORK-NORTHERN NEW JERSEY POOL WHOSE OPERATION IS
JEOPARDIZED BY THE COURT'S DECISION TODAY.  (FN10)  THE SECRETARY HAS
ALSO CHOSEN TO LEAVE A NUMBER OF AREAS UNREGULATED.  OBVIOUSLY IN A
SYSTEM INCLUDING BOTH LARGE UNREGULATED AREAS AND REGULATED REGIONAL
POOLS IN WHICH PRICES MAY BE FIXED AT DIFFERENT LEVELS, THERE WILL BE
SIGNIFICANT AND COMPLICATED PROBLEMS INVOLVED IN MILK SALES AND
PURCHASES THAT DO NOT TAKE PLACE WHOLLY WITHIN A SINGLE POOL.  AMONG
THE MOST SERIOUS OF THESE PROBLEMS IS THAT HANDLERS FROM OUTSIDE A POOL
CAN, IF LEFT UNREGULATED, GET THE ADVANTAGES OF SELLING MILK IN THAT
POOL AREA WITHOUT BEARING ANY OF THE BURDENS THAT MEMBERS OF THAT POOL
HAVE TO BEAR.  AND AS SHOWN BY THE RECORD IN THIS CASE SUCH SALES CAN
REDUCE THE NET PRICE RECEIVED BY THE FARMERS WITHIN THE POOL AREA.  IN
AN OBVIOUS EFFORT TO PREVENT ANY SUCH HARMFUL EFFECTS ON THE PRICES
RECEIVED BY FARMERS IN THE NEW YORK-NORTHERN NEW JERSEY POOL, THE
SECRETARY, PROPERLY I THINK, ACTING UNDER HIS AUTHORITY TO ISSUE ORDERS
"INCIDENTAL  ...  AND NECESSARY TO EFFECTUATE" HIS SPECIFIC PRICE
FIXING POWERS, PROVIDED THAT NONPOOL HANDLERS WHO SOLD FLUID MILK IN
THAT POOL AREA AT TIMES WHEN THERE WAS SURPLUS FLUID MILK IN THE POOL
SHOULD MAKE A PAYMENT TO COMPENSATE POOL FARMERS FOR THE DISPLACEMENT
OF FLUID SALES THEY OTHERWISE WOULD HAVE MADE, COMPENSATE FOR THE
REDUCTION OF THE REGIONAL POOL FUND WHICH THIS WOULD CAUSE AND TO
COMPENSATE FOR THE CONSEQUENT DIMINUTION OF THE BLEND PRICE THAT WOULD
BE PAID TO POOL FARMERS.  IT IS THIS KEY REGULATORY FEATURE WHICH THE
COURT STRIKES DOWN AS A "TRADE BARRIER" PROHIBITED BY SEC. 8C(5)(G) OF
THE ACT BECAUSE IT LIMITS THE ABILITY OF OUTSIDE HANDLERS TO SELL MILK
WITHIN THE POOL AREA AT A PROFIT.    IT IS NO DOUBT TRUE THAT THE
SECRETARY'S REQUIREMENT THAT NONPOOL HANDLERS MAKE COMPENSATORY
PAYMENTS IN ORDER TO SELL FLUID MILK WITHIN THE NEW YORK-NORTHERN NEW
JERSEY POOL AREA DOES LIMIT TO SOME EXTENT THE ABILITY OF HANDLERS
WHOSE MAJOR BUSINESS IS OUTSIDE THE POOL TO DUMP THEIR SURPLUS MILK
INTO THE POOL AT HIGHLY PROFITABLE FLUID MILK PRICES, AND IF THIS IS A
TRADE BARRIER THE SECRETARY'S REGULATION CAN PROPERLY BE CALLED A
"TRADE BARRIER."  BUT SEC. 8C(5)(G) SAYS NOTHING AT ALL ABOUT
PROHIBITING "TRADE BARRIERS" OR GUARANTEEING HIGH PROFITS TO HANDLERS,
AND IF IT HAD IT WOULD HAVE BEEN AT CROSS PURPOSES WITH THE BASIC AIM
OF THE ACT TO HAVE GOVERNMENT RATHER THAN COMPETITION FIX THE MINIMUM
PRICES THAT FARMERS IN DESIGNATED REGIONAL AREAS MUST BE PAID FOR THEIR
MILK.  IT SAYS ONLY: 

"NO MARKETING AGREEMENT OR ORDER APPLICABLE TO MILK AND ITS PRODUCTS
IN ANY MARKETING AREA SHALL PROHIBIT OR IN ANY MANNER LIMIT, IN THE
CASE OF THE PRODUCTS OF MILK, THE MARKETING IN THAT AREA OF ANY MILK OR
PRODUCT THEREOF PRODUCED IN ANY PRODUCTION AREA IN THE UNITED STATES." 
(FN11) 

THIS LANGUAGE CONTAINS NO WORDS OR ARRANGEMENT OF WORDS OF ANY KIND
THAT WOULD PROHIBIT THE SECRETARY FROM LIMITING THE MARKETING OF MILK
IN ANY REGIONAL AREA WHERE NECESSARY TO PROTECT THE PRICES FIXED FOR
THAT REGIONAL AREA.  THE COURT, HOWEVER, GOES TO GREAT LENGTHS TO TRY
TO SHOW ON THE BASIS OF LEGISLATIVE HISTORY THAT CONGRESS REALLY MEANT
THE NO-LIMITATION CLAUSE TO APPLY TO MILK AS WELL AS TO MILK PRODUCTS. 
IN OTHER WORDS THE COURT WANTS TO READ THE STATUTE AS IF CONGRESS HAD
SAID "NO ORDER SHALL PROHIBIT OR LIMIT THE MARKETING IN THAT AREA OF
ANY MILK OR PRODUCT THEREOF."  BUT CONGRESS SIMPLY DID NOT SAY THAT. 
AND THE WHOLE LEGISLATIVE HISTORY PERSUADES ME THAT CONGRESS KNEW
EXACTLY WHAT IT WAS SAYING AND THAT, WHILE IT INTENDED TO FORBID THE
SECRETARY FROM MAKING BLANKET PROHIBITIONS AGAINST OUTSIDE MILK, IT
ALSO MEANT TO LEAVE THE SECRETARY FREE TO ESTABLISH WHATEVER
REGULATIONS WERE NECESSARY TO GUARANTEE THAT FARMERS IN A PRICE-FIXING
REGION RECEIVED THE REGIONAL PRICES HE WAS AUTHORIZED TO FIX EVEN
THOUGH THOSE REGULATIONS MIGHT LIMIT SALES BY OUTSIDE HANDLERS BY
MAKING THEM UNPROFITABLE.  (FN12) 

OUTSIDE THE LANGUAGE OF SEC. 8C(5)(G) ITSELF THE CLEAREST INDICATION
THAT THIS IS THE PROPER INTERPRETATION OF THE LEGISLATIVE HISTORY OF
THE ACT IS THAT AN AMENDMENT WHICH WOULD HAVE MADE THE NO-LIMITATION
CLAUSE APPLICABLE TO MILK AS WELL AS MILK PRODUCTS WAS DEFEATED ON THE
FLOOR OF THE HOUSE AND THAT AN AMENDMENT TO THE SAME EFFECT WHICH
PASSED THE SENATE WAS DELETED IN CONFERENCE.  (FN13)  THE ARGUMENTS OF
THE CHAIRMAN OF THE HOUSE COMMITTEE ON AGRICULTURE, ONE OF THE
PRINCIPAL ARCHITECTS OF THE PROGRAM, AGAINST THE AMENDMENT IN THE HOUSE
SHOW, ALMOST CONCLUSIVELY, A GENERAL UNDERSTANDING THAT REGIONAL PRICE
FIXING NECESSARILY REQUIRED SALES FROM OUT OF THE REGION TO BE LIMITED
IF THE PRICE FIXING WERE TO BE SUCCESSFUL: 

"MR. JONES.  MR. CHAIRMAN, THE ADOPTION OF THE AMENDMENT OF THE
GENTLEMAN FROM WISCONSIN WOULD ABSOLUTELY WRECK THE WHOLE MILK
PROGRAM.  IN ORDER TO GET AWAY FROM THE TERRIFFIC CONDITIONS THAT HAVE
PREVAILED IN THE MILK INDUSTRY THERE IS PROVIDED IN THE BILL AUTHORITY
TO FIX A MINIMUM PRICE TO PRODUCERS.  THAT, AT LEAST IN A MEASURE,
WOULD LIMIT OR TEND TO LIMIT SHIPMENT, AND YET THE GENTLEMAN, I AM
SURE, DOES NOT WANT TO INTERFERE WITH THE PRICE TO PRODUCERS.  THEN IT
IS A UNIVERSAL CUSTOM IN THE MARKETING OF MILK TO CLASSIFY MILK.  THIS,
IN A WAY, IS A LIMITATION. 

"I AM PERFECTLY WILLING TO ADOPT THE FIRST AMENDMENT SUGGESTED (THE
PRESENT SEC. 8C(5)(G)), BECAUSE THAT SIMPLY TREATS ALL AREAS ALIKE, FOR
YOU COULD NOT PROHIBIT SOMEONE FROM AN OUTSIDE AREA COMING IN SO LONG
AS HE COMPLIED WITH THE CONDITIONS PRESCRIBED FOR THAT AREA; BUT IF YOU
SAID THAT NO RESTRICTIONS OR LIMITATIONS COULD BE REQUIRED, IT WOULD
WRECK THE PROGRAM, IT WOULD DESTROY EVERY VESTIGE OF A PROGRAM WE HAVE
FOR MILK."  (FN14) 

AFTER THE SENATE AMENDMENT HAD BEEN REJECTED BY THE CONFERENCE AND
WHILE THE CONFERENCE REPORT WAS BEING CONSIDERED IN THE HOUSE OF
REPRESENTATIVES, A DISCUSSION TOOK PLACE ON THE FLOOR BETWEEN
REPRESENTATIVE HOPE, A MEMBER OF THE HOUSE COMMITTEE ON AGRICULTURE AND
ONE OF THE CONFEREES, AND THE CHAIRMAN OF THE COMMITTEE WHO WAS ALSO A
CONFEREE.  THIS DISCUSSION SHOWS THE SAME UNDERSTANDING THAT THE
SECRETARY WAS TO BE LEFT FREE TO IMPOSE WHATEVER LIMITATIONS WERE
NECESSARY TO PROTECT THE REGIONAL PRICES HE WAS AUTHORIZED TO FIX: 

"MR. JONES.  BUT THE ORIGINAL AMENDMENTS DID NOT PERMIT ANY ORDERS
GOVERNING THE PRICE TO THE PRODUCERS? 

"MR. HOPE.  NO; BUT OTHERWISE THE SECRETARY COULD MAKE ORDERS WHICH
WOULD REGULATE THE BRINGING IN OF MILK FROM THE OUTSIDE INTO ANY
PARTICULAR MILKSHED, BUT UNDER THE AMENDMENTS WE ARE NOW CONSIDERING
THE SECRETARY'S POWER IS LIMITED.  HE CANNOT PROHIBIT MILK FROM COMING
IN? 

"MR. JONES.  THAT IS CORRECT. 

"MR. HOPE.  BUT HE CAN PRESCRIBE SOME LIMITATIONS? 

"MR. JONES.  YES; AND HE CANNOT PROHIBIT THE PRODUCTS OF MILK BEING
BROUGHT INTO ANY AREA. 

"MR. HOPE.  NO; BUT HE CAN PRESCRIBE LIMITATIONS ON THE IMPORTATION
OF FLUID MILK. 

"MR. SNELL.  THEN, AS FAR AS FLUID MILK IS CONCERNED, IT IS PROTECTED
IN CERTAIN MARKETS, BUT, AS FAR AS THE OTHER PRODUCTS ARE CONCERNED,
THEY ARE NOT PROTECTED. 

"MR. JONES.  THAT IS CORRECT."  (FN15) 

THESE WERE THE LAST COMMENTS MADE ON THE FLOOR OF THE HOUSE
CONCERNING MILK BEFORE THE CONFERENCE REPORT WAS FINALLY ADOPTED. 

IN THE LIGHT OF THIS LEGISLATIVE HISTORY AND THE ACT'S LANGUAGE
ITSELF, I CANNOT POSSIBLY READ SEC. 8C(5)(G) OR ANY OTHER PART OF THE
ACT TO INSURE PROFITABLE OPERATIONS TO OUTSIDE HANDLERS WHO DESIRE TO
DUMP SURPLUS MILK INTO A REGIONAL PRICE-FIXING AREA OR TO SAY THAT THE
SECRETARY LACKS THE POWER TO PROTECT BY APPROPRIATE REGULATIONS THE
INTEGRITY OF THE REGIONAL PRICES WHICH CONGRESS AUTHORIZED HIM TO FIX. 
I SIMPLY CANNOT BELIEVE THAT CONGRESS INTENDED TO TAKE AWAY WITH ONE
HAND THE HIGH FIXED PRICE FOR MILK WHICH IT GAVE WITH THE OTHER. 

THE NET RESULT OF THE COURT'S ACTION IS TO LEAVE THE FARMERS IN THE
NEW YORK-NORTHERN NEW JERSEY POOL, AND THOSE IN 22 OTHER POOLS
CONTAINING THE PROVISIONS WHICH THE COURT STRIKES DOWN TODAY, (FN16)
COMPLETELY DEFENSELESS AGAINST AN ONSLAUGHT OF OUTSIDE MILK THAT IS
HIGHLY DISCRIMINATORY BECAUSE THE OUTSIDE MILK BEARS NONE OF THE
BURDENS OF POOL MILK.  I SAY COMPLETELY DEFENSELESS DESPITE THE FACT
THAT THE COURT INTIMATES THAT THE SECRETARY MIGHT POSSIBLY DEVISE SOME
ALTERNATIVE COMPENSATORY PAYMENT PLAN THAT WOULD SATISFY THE EXACTING
STANDARDS WHICH IT LAYS DOWN TODAY.  MY FIRST REASON FOR SAYING THIS IS
THAT I DO NOT SEE HOW ANY FORMULA THAT THE SECRETARY COULD DEVISE UNDER
THE COURT'S EXPANDED INTERPRETATION OF THE WORD "PROHIBIT" IN SEC.
8C(5)(G) WOULD PROTECT POOL MEMBERS FROM UNFAIR COMPETITION BY OUTSIDE
HANDLERS WHO ARE BY THE COURT'S DECISION GIVEN THE ADVANTAGES BUT NOT
REQUIRED TO BEAR THE BURDENS OF THE POOL.  (FN17)  SECONDLY, EVEN IF
SUCH A FORMULA WERE POSSIBLE I DOUBT THAT A SINGLE MEMBER OF THIS COURT
HAS THE TECHNICAL KNOWLEDGE ABOUT THE COMPLICATED WORKINGS OF THE MILK
INDUSTRY TO FORMULATE A SOUND SUBSTITUTE FOR THE COMPENSATORY PAYMENT
PLAN WHICH THE COURT STRIKES DOWN - A REGULATORY PLAN WHICH REPRESENTS
MORE THAN A QUARTER CENTURY OF DAILY PRACTICAL EXPERIENCE IN
ADMINISTERING THE CONGRESSIONAL FARM PLAN.  THIRDLY, IN ANY EVENT THE
COURT'S VAGUE INTIMATIONS THAT SOME COMPENSATORY PAYMENT PLAN MIGHT BE
VALID ARE HARDLY SUFFICIENT TO FURNISH THE SECRETARY WITH ANY GUIDANCE
AT ALL AS TO WHAT FORMULA IF ANY THE COURT WOULD PERMIT HIM TO USE TO
PROTECT THE FARMERS IN THIS POOL FROM THE EFFECTS OF BEING COMPELLED TO
COMPETE WITH OUTSIDE "FREE RIDERS." 

I THINK THAT IF THE COURT REALLY DOES BELIEVE THAT THE SECRETARY HAS
ANY POWER AT ALL TO PREVENT POOL FARMERS FROM BEING SUBJECTED TO
DISCRIMINATORY COMPETITION FROM OUTSIDE "FREE RIDERS" IT SHOULD STATE
IN CLEAR AND PRECISE TERMS WHAT THOSE POWERS ARE AND INFORM THE
SECRETARY HOW HE CAN MEET THIS COURT'S REQUIREMENTS.  THE COURT SHOULD
THEN REMAND THIS CASE TO ALLOW THE SECRETARY TO TAKE THE ACTION WHICH
IT WILL APPROVE, PERMIT HIM TO DETERMINE THE AMOUNT THAT HE COULD
PROPERLY UNDER ITS STANDARDS HAVE REQUIRED THESE HANDLERS TO PAY AND
DIRECT THAT THE DISTRICT COURT PAY OVER THAT AMOUNT TO THE SECRETARY
OUT OF THE FUNDS NOW IN ITS POSSESSION.  THIS PLAN WOULD AT LEAST OFFER
THE FARMERS IN THIS POOL SOME PROTECTION AGAINST HAVING TO PAY OUT ALL
OF THE MORE THAN $700,000 IN COMPENSATORY PAYMENTS WHICH HAS ALREADY
BEEN COLLECTED FROM THESE HANDLERS.  SUCH A PLAN WAS FOLLOWED IN UNITED
STATES V. MORGAN, (FN18) AND THERE IS EVERY REASON IN EQUITY AND GOOD
CONSCIENCE WHY IT SHOULD BE FOLLOWED HERE.  IN THAT CASE THE DISTRICT
COURT ENJOINED AN ORDER OF THE SECRETARY BUT REQUIRED THE PARTY
CHALLENGING THE ORDER TO PAY INTO COURT SUFFICIENT FUNDS TO EFFECT
COMPLIANCE WITH THE ORDER IF IT SHOULD ULTIMATELY BE FOUND VALID.  THIS
COURT FOUND THE ORDER DEFECTIVE BUT NEVERTHELESS ORDERED THE DISTRICT
COURT NOT TO RETURN THE FUND, WHICH THEN CONTAINED OVER A HALF MILLION
DOLLARS.  ON THE CONTRARY, OVER STRONG DISSENTS URGING THAT THE
SECRETARY ONLY HAD POWER TO ISSUE A NEW ORDER FOR THE FUTURE, THIS
COURT COMMANDED THAT THE FUND BE RETAINED UNTIL THE SECRETARY COULD
MAKE NEW FINDINGS AND ENTER A NEW ORDER SO THAT THE FUND COULD BE
DISPOSED OF UNDER A PROPER DETERMINATION OF THE SECRETARY, STATING
THAT: 

"DUE REGARD FOR THE DISCHARGE OF THE COURT'S OWN RESPONSIBILITY TO THE
LITIGANTS AND TO THE PUBLIC AND THE APPROPRIATE EXERCISE OF ITS
DISCRETION IN SUCH MANNER AS TO EFFECTUATE THE POLICY OF THE ACT AND
FACILITATE ADMINISTRATION OF THE SYSTEM WHICH IT HAS SET UP, REQUIRE
RETENTION OF THE FUND BY THE DISTRICT COURT UNTIL SUCH TIME AS THE
SECRETARY, PROCEEDING WITH DUE EXPEDITION, SHALL HAVE ENTERED A FINAL
ORDER IN THE PROCEEDINGS PENDING BEFORE HIM."  (FN19) 

FOLLOWING THIS DECISION THE SECRETARY HELD NEW HEARINGS, MADE NEW
FINDINGS AND ENTERED A NEW ORDER, ACCORDING TO WHICH THIS COURT IN A
LATER UNITED STATES V. MORGAN (FN20) ORDERED THE MORE THAN ONE-HALF
MILLION-DOLLAR FUND DISTRIBUTED. 

DESPITE THE FACT THAT THE COURT PURPORTS NOT TO PASS EITHER ON THE
VALIDITY OF REQUIRING ALL HANDLERS TO BEAR THE FULL BURDENS OF POOL
MEMBERSHIP OR UPON THE ABILITY OF THE SECRETARY TO APPLY AGAINST THESE
HANDLERS ANY FUTURE SCHEME OF REGULATION WHICH MEETS THE COURT'S
STANDARDS FOR THE PERIOD HERE IN QUESTION, (FN21) IT SEEMS CLEAR THAT
IN FAILING TO FOLLOW THE MORGAN PROCEDURE THE COURT IN EFFECT RULES
AGAINST THE SECRETARY ON BOTH THESE QUESTIONS.  THIS IS BECAUSE THE
COURT'S REFUSAL TO PASS SPECIFICALLY ON THESE QUESTIONS LEAVES STANDING
THE DISTRICT COURT'S HOLDING THAT THE SECRETARY CANNOT REQUIRE THESE
HANDLERS TO BEAR THE FULL BURDENS OF POOL MEMBERSHIP FOR THE PERIOD
DURING WHICH THE COMPENSATORY PAYMENTS STRUCK DOWN HERE WERE MADE.  THE
REGULATION UNDER WHICH THE SECRETARY CLAIMS THAT THESE HANDLERS ARE
SUBJECT TO THE FULL BURDENS OF POOL MEMBERSHIP IS A PART OF THE SAME
COMPENSATORY PAYMENTS OF WHICH THEY COMPLAIN.  THAT SECTION PROVIDES
THAT ALL HANDLERS LIKE PETITIONERS ARE POOL HANDLERS AND REQUIRED TO
BEAR ALL THE BURDENS OF POOL MEMBERSHIP UNLESS THEY ELECT TO BE NON
POOL HANDLERS AND MAKE COMPENSATORY PAYMENTS.  THE SECRETARY'S
CONTENTION IS THAT ONCE THE PART OF THE REGULATION WHICH PROVIDES FOR
THE COMPENSATORY PAYMENT IS STRUCK DOWN, AS THE COURT DOES HERE, THE
REMAINDER OF THE REGULATION WHICH REQUIRES ALL HANDLERS TO BE POOL
HANDLERS APPLIES.  BY REMANDING THIS CASE TO THE DISTRICT COURT WHICH
HAS ALREADY RULED ADVERSELY ON THIS CLAIM THE COURT WITHOUT SO MUCH AS
SAYING A SINGLE WORD ON THIS POINT EFFECTIVELY PREVENTS THE SECRETARY
FROM TRYING TO PROTECT POOL FARMERS FROM FREE-RIDING OUTSIDE MILK BY
TREATING THESE HANDLERS AS POOL MEMBERS FOR THE PERIOD HERE IN
DISPUTE. 

THE FULL EFFECT OF THE COURT'S FAILURE TO FOLLOW THE MORGAN PROCEDURE
AND DECIDE WHETHER THE SECRETARY'S PROVISIONS FOR FULL REGULATION OF
THESE HANDLERS ARE VALID, OR JUST WHAT THE SECRETARY COULD DO TO
PROTECT THE PRICES HE HAS FIXED, IS IN MY OPINION LIKELY TO BE A WHOLLY
UNJUST AND INEQUITABLE WINDFALL OF OVER $700,000 TO THE HANDLERS, SINCE
IT WILL ULTIMATELY HAVE TO COME OUT OF THE POCKETS OF THE FARMERS WHO
BEAR THE BURDENS OF THIS POOL.  HOW MANY MORE SUCH WINDFALLS TO OTHER
HANDLERS INVOLVING HOW MANY COUNTLESS THOUSANDS OF DOLLARS IN THIS AND
THE OTHER 22 SIMILARLY SITUATED POOLS THE COURT'S ACTION WILL BRING ONE
CAN ONLY GUESS.  (FN23) ONE FAMILIAR WITH THE ACT AND ITS HISTORY NEED
NOT GUESS, HOWEVER, ABOUT THE FACT THAT SUCH A RESULT WOULD HAVE BEEN
ABHORRENT TO THE CONGRESS WHICH PASSED THIS ACT FOR THE BENEFIT OF
FARMERS.  I WOULD AFFIRM THE DECISION OF THE COURT BELOW WHICH UPHELD
THE SECRETARY. 

FN1  297 U.S. 1. 

FN2  50 STAT. 246, 7 U.S.C. SEC. 601 ET SEQ. 

FN3  49 STAT. 750. 

FN4  48 STAT. 31. 

FN5  SEE NEBBIA V. NEW YORK, 291 U.S. 502, 515-518, 530; UNITED
STATES V. ROCK ROYAL CO-OPERATIVE, INC., 307 U.S. 533, 548-550.    FN6
50 STAT. 246, AS AMENDED, 7 U.S.C. SEC. 608C. 

FN7  49 STAT. 750. 

FN8  50 STAT. 247, 7 U.S.C. SEC. 608C(18). 

FN9  49 STAT. 757, 7 U.S.C. SEC. 608C(7)(D). 

FN10  CONGRESS SPECIFICALLY PROVIDED IN SEC. 8C(11)(C) OF THE ACT
THAT THE SECRETARY'S PRICE-FIXING POWERS WERE TO BE EXERCISED ON A
REGIONAL BASIS RATHER THAN A NATIONAL BASIS WHENEVER PRACTICABLE: 

"ALL ORDERS ISSUED UNDER THIS SECTION WHICH ARE APPLICABLE TO THE
SAME COMMODITY OR PRODUCT THEREOF SHALL, SO FAR AS PRACTICABLE,
PRESCRIBE SUCH DIFFERENT TERMS, APPLICABLE TO DIFFERENT PRODUCTION
AREAS AND MARKETING AREAS, AS THE SECRETARY FINDS NECESSARY TO GIVE DUE
RECOGNITION TO THE DIFFERENCES IN PRODUCTION AND MARKETING OF SUCH
COMMODITY OR PRODUCT IN SUCH AREAS."  49 STAT. 759, 7 U.S.C. SEC.
608C(11)(C).  SEE ALSO SEC.  8C(11)(A).  49 STAT. 759, 7 U.S.C. SEC.
608C(11)(A). 

FN11  49 STAT. 755, 7 U.S.C. SEC. 608C(5)(G). 

FN12  SEE BAILEY FARM DAIRY CO. V. ANDERSON, 157 F.2D 87, 96; KASS V.
BRANNAN, 196 F.2D 791, 800 (L. HAND, J., DISSENTING). 

FN13  THE AMENDMENT ADOPTED BY THE SENATE BUT REJECTED BY THE
CONFERENCE IS INDICATED IN ITALICS: "NO MARKETING AGREEMENT OR ORDER
APPLICABLE TO MILK AND ITS PRODUCTS IN ANY MARKETING AREA SHALL
PROHIBIT OR IN ANY MANNER LIMIT, EXCEPT AS PROVIDED FOR MILK ONLY IN
SUBSECTION (D), THE MARKETING IN THAT AREA OF ANY MILK OR PRODUCT
THEREOF PRODUCED IN ANY PRODUCTION AREA IN THE UNITED STATES."  79
CONG. REC. 11655.  THE WORDING OF THIS AMENDMENT SHOWS THAT THE COURT'S
ATTEMPTED EXPLANATION OF WHY "IN ANY MANNER LIMIT" WAS OMITTED FROM THE
FINAL LANGUAGE OF SEC. 8C(5)(G) DOES NOT BEAR ANALYSIS.  THE COURT'S
EXPLANATION IS THAT SOMEONE MIGHT CONSTRUE "LIMIT" AS PROHIBITING "THE
TYPE OF PRICE FIXING LIMITATION COVERED BY SUBSECTION (D)."  BUT IT
SEEMS VERY CLEAR THAT THE WORDING OF THE SENATE AMENDMENT WAS EXPRESSLY
DESIGNED TO PREVENT SUCH A CONSTRUCTION WHILE AT THE SAME TIME MAKING
"IN ANY MANNER LIMIT" APPLICABLE TO MILK.  CONSEQUENTLY IT SEEMS
APPARENT THAT IN REJECTING THE SENATE AMENDMENT THE CONFERENCE WAS NOT
REFUSING TO APPLY "IN ANY MANNER LIMIT" TO MILK BECAUSE TO DO SO WOULD
INTERFERE WITH THE OPERATION OF SUBSECTION (D), BUT WAS IN FACT
OMITTING THAT LANGUAGE BECAUSE, TO BE EFFECTIVE, PRICE FIXING ITSELF
NECESSARILY REQUIRED LIMITATIONS ON THE SELLING OF OUTSIDE MILK WITHIN
THE AREA.  THIS IS CLEARLY SHOWN BY THE CONFERENCE REPORT, H.R. REP.
NO. 1757, 74TH CONG., 1ST SESS. 21: 

"THE SENATE AMENDMENT EXTENDED THIS PROVISION (SEC. 8C(5)(G)) SO THAT
NO MARKETING AGREEMENT OR ORDER SO APPLICABLE COULD LIMIT IN ANY MANNER
THE MARKETING IN THE MARKETING AREA OF MILK OR ITS PRODUCTS PRODUCED
ANYWHERE EXCEPT THAT CERTAIN LIMITATIONS ON THE MARKETING OF MILK WERE
SPECIFICALLY PERMITTED  ...  .  THE CONFERENCE AGREEMENT ALSO DENIES
THE AUTHORITY TO LIMIT IN ANY MANNER THE MARKETING IN ANY AREA OF MILK
PRODUCTS  ...  BUT DOES NOT REFER TO MILK, AND SO DOES NOT NEGATIVE THE
APPLICABILITY TO MILK, FOR USE IN FLUID FORM OR FOR MANUFACTURING
PURPOSES, OF THE PROVISIONS OF THE BILL RELATING TO MILK SUCH AS THE
PROVISIONS ON PRICE FIXING, PRICE ADJUSTMENT, PAYMENTS FOR MILK, ETC." 

FN14  70 CONG. REC. 9572. 

FN15  79 CONG. REC. 13022. 

FN16  SEE NOTE 9 OF THE COURT'S OPINION.  AT LEAST 18 OTHER POOLS
APPLY A COMPENSATORY PAYMENT PROVISION LIKE THE ONE IN THIS CASE FOR A
LEAST PART OF THE YEAR.  SEE NOTE 13 OF THE COURT'S OPINION. 

FN17  CERTAINLY NEITHER OF THE FORMULAS WHICH THE COURT IN ITS NOTE
13 INTIMATES MIGHT BE PROPER WOULD PROTECT THE FARMERS IN THE POOL, FOR
NEITHER OF THESE FORMULAS EVEN GOES SO FAR AS TO WIPE OUT THE
DISCRIMINATORY ADVANTAGE THAT UNREGULATED OUTSIDE MILK HAS OVER POOL
MILK.  IN SUSTAINING THE SECRETARY'S REGULATION IN THIS CASE THE
JUDICIAL OFFICER RELIED IN PART ON THE FOLLOWING REASONS: 

"THE MARKETWIDE POOL EXISTING UNDER ORDER NO. 27, AS AMENDED, CARRIES
THE LONG-TIME AND SEASONAL RESERVES OF MILK FOR NUMEROUS SECONDARY
MARKETS IN PENNSYLVANIA AND THE NORTHEASTERN STATES.  THE NEW YORK-NEW
JERSEY MARKET CARRIES THE SURPLUS BURDEN FOR OUTSIDE HANDLERS WHO
DISTRIBUTE SOME MILK IN THE MARKETING AREA.  THESE HANDLERS USUALLY
HAVE A RELATIVELY HIGH PERCENTAGE OF THEIR MILK IN FLUID MILK
UTILIZATION AND THIS UTILIZATION IS CONSIDERABLY HIGHER THAN THE
AVERAGE FOR THE MARKET REGULATED BY ORDER NO. 27.  THIS HIGHER
UTILIZATION, OF COURSE, RESULTS IN A COMPETITIVE ADVANTAGE IN MILK
PROCUREMENT TO THE OUTSIDE HANDLER AS AGAINST THE REGULATED HANDLER AND
OUTSIDE AND REGULATED HANDLERS DRAW ON THE SAME PRODUCTION AREA FOR
SUPPLIES.  FURTHERMORE, THE REGULATED HANDLER HAS TO EQUAL HIS
UTILIZATION WITH OTHER HANDLERS AND HIS PRODUCERS ARE PAID ON THE BASIS
OF A UNIFORM PRICE REFLECTING THE UTILIZATION IN THE MARKET AS A WHOLE
RATHER THAN HIS INDIVIDUAL UTILIZATION." 

THUS, A COMPENSATORY PAYMENT, SUCH AS THE COURT SUGGEST, BASED ON THE
DIFFERENCE BETWEEN THE FLUID PRICE AND THE BLEND PRICE OBVIOUSLY WOULD
DO NOTHING AT ALL TO WIPE OUT THE ADVANTAGE THAT THE OUTSIDE HANDLER
HAS BECAUSE OF HIS HIGHER FLUID-SURPLUS RATIO WHICH IS DUE, AS SHOWN
ABOVE, TO (1) THE FACT THAT THE POOL CARRIES PART OF HIS AREA'S SURPLUS
AND (2) THE FACT THAT HE DOES NOT HAVE TO EQUALIZE HIS OWN UTILIZATION
AS DO POOL HANDLERS.  ONLY A COMPENSATORY PAYMENT WHICH GIVES THE
OUTSIDE HANDLER LESS FOR HIS SURPLUS MILK THAN THE POOL FARMER GETS
WILL NARROW THE COMPETITIVE ADVANTAGE WHICH OUTSIDE MILK HAS.  A
COMPENSATORY PAYMENT BASED ON THE DIFFERENCE BETWEEN THE FLUID PRICE
AND ACTUAL COST, THE OTHER ALTERNATIVE SUGGESTED BY THE COURT, WOULD
OBVIOUSLY BE EVEN MORE SUBJECT TO THIS SAME DEFECT THAN THE FLUID-BLEND
PRICE COMPENSATORY PAYMENT.  SEE ALSO HUTT, RESTRICTIONS ON THE FREE
MOVEMENT OF FLUID MILK UNDER FEDERAL MILK MARKETING ORDERS, 37 U. DET. 
L.J. 525, 573-576, PARTICULARLY AT NOTE 220. 

FN18  307 U.S. 183.  CF. INLAND STEEL CO. V. UNITED STATES, 306 U.S.
153. 

FN19  307 U.S., AT 198. 

FN20  313 U.S. 409. 

FN21  THE COURT'S CITATION OF MORGAN V. UNITED STATES, 304 U.S. 1,
23, AS PURPORTED JUSTIFICATION FOR ITS AVOIDANCE OF THIS ISSUE IS
PARTICULARLY APPROPRIATE, AND I FEAR PROPHETIC.  FOR IN LARGE PART DUE
TO THIS COURT'S AVOIDANCE OF A SIMILAR ISSUE IN THE MORGAN CASE, THAT
CASE WANDERED THROUGH THE COURTS FOR ALMOST EIGHT YEARS, INCLUDING FOUR
TRIPS TO THIS COURT. 

FN22  7 CFR SEC. 1002.29(D). 

FN23  A SUIT INVOLVING THE PROVISION OF THE CLEVELAND ORDER SIMILAR
TO THE ONE STRUCK DOWN HERE HAS ALREADY FOUND ITS WAY INTO COURT.  SEE
LAWSON MILK CO. V. BENSON, 187 F. SUPP.  66, APPEAL PENDING. 
..END :







CALBECK V. TRAVELERS INSURANCE CO. 370 U.S. 114 


NO. 532.  ARGUED APRIL 23, 1962 - DECIDED JUNE 4, 1962* - 293 F.2D 51,
52, REVERSED. 

*TOGETHER WITH DONOVAN, DEPUTY COMMISSIONER, V. AVONDALE SHIPYARDS,
INC. 


1.  INJURIES SUSTAINED BY EMPLOYEES WORKING ON NEW VESSELS UNDER
CONSTRUCTION AND AFLOAT UPON NAVIGABLE WATERS ARE NOT EXCLUDED FROM THE
COVERAGE OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT BY
SEC. 3(A) THEREOF ALTHOUGH RECOVERY FOR SUCH INJURIES MAY VALIDLY BE
HAD UNDER A STATE WORKMEN'S COMPENSATION LAW.  PP. 115-131. 

2.  ACCEPTANCE BY SUCH AN EMPLOYEE OF PAYMENTS UNDER A STATE
WORKMEN'S COMPENSATION LAW DOES NOT CONSTITUTE AN ELECTION OF THE
REMEDY UNDER THE STATE LAW WHICH PRECLUDES RECOVERY UNDER THE
LONGSHOREMEN'S ACT.  PP. 131-132. 

CALBECK, DEPUTY COMMISSIONER, BUREAU OF EMPLOYEES' COMPENSATION, V.
TRAVELERS INSURANCE CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

ACT PROVIDES THAT COMPENSATION SHALL BE PAID ONLY FOR INJURIES
OCCURRING ON NAVIGABLE WATERS "AND IF RECOVERY  ...  THROUGH WORKMEN'S
COMPENSATION PROCEEDINGS MAY NOT VALIDLY BE PROVIDED BY STATE LAW." 
(FN1)  IN EACH OF THESE CASES THE PETITIONER IS A DEPUTY COMMISSIONER
WHO BASED AN AWARD OF COMPENSATION UNDER THE ACT ON FINDINGS THAT THE
EMPLOYEE WAS ENGAGED AT THE TIME OF HIS INJURY IN THE WORK OF
COMPLETING THE CONSTRUCTION OF A VESSEL AFLOAT ON NAVIGABLE WATERS. 
(FN2)  BEFORE THE LONGSHOREMEN'S ACT WAS PASSED, THIS COURT HAD
SUSTAINED THE VALIDITY OF A STATE WORKMEN'S COMPENSATION STATUTE AS
APPLIED TO INJURIES SUFFERED BY AN EMPLOYEE ENGAGED IN THE COMPLETION
OF A LAUNCHED VESSEL UNDER CONSTRUCTION ON NAVIGABLE WATERS, GRANT
SMITH-PORTER SHIP CO. V. ROHDE, 257 U.S. 469, BUT HAD MADE CLEAR THAT
STATE COMPENSATION STATUTES COULD NOT, CONSTITUTIONALLY, BE APPLIED TO
INJURIES TO EMPLOYEES ENGAGED IN REPAIR WORK ON COMPLETED VESSELS ON
NAVIGABLE WATERS.  (FN3)  THE COURT BELOW INTERPRETED SEC. 3(A) AS
ADOPTING THIS DISTINCTION AND SO SET ASIDE BOTH AWARDS, THUS HOLDING
THAT A SHIPYARD WORKER'S RIGHT TO COMPENSATION UNDER THE ACT, IF HIS
INJURY IS INCURRED ON A VESSEL, DEPENDS NOT ONLY ON WHETHER THE VESSEL
IS ON NAVIGABLE WATERS, BUT ALSO ON WHETHER THE VESSEL WAS UNDER REPAIR
RATHER THAN UNDER CONSTRUCTION.  AVONDALE SHIPYARDS, INC., V. DONOVAN,
293 F.2D 51; TRAVELERS INSURANCE CO. V. CALBECK, 293 F.2D 52.  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE INTERPRETATION OF
SEC. 3(A) IN THE ADMINISTRATION OF THE ACT.  368 U.S. 946.  WE REVERSE
THE JUDGMENTS OF THE COURT OF APPEALS AND AFFIRM THE JUDGMENTS OF THE
DISTRICT COURTS SUSTAINING THE AWARDS. 

THE COURT OF APPEALS' INTERPRETATION OF SEC. 3(A) WOULD, IF CORRECT,
HAVE THE EFFECT OF EXCEPTING FROM THE ACT'S COVERAGE NOT ONLY THE
INJURIES SUFFERED BY EMPLOYEES WHILE ENGAGED IN SHIP CONSTRUCTION BUT
ALSO ANY OTHER INJURIES - EVEN THOUGH INCURRED ON NAVIGABLE WATERS AND
SO WITHIN THE REACH OF CONGRESS - FOR WHICH A STATE LAW COULD,
CONSTITUTIONALLY, PROVIDE COMPENSATION.  BUT THE COURT OF APPEALS'
INTERPRETATION IS INCORRECT.  THE HISTORY OF THE ACT, AND OF SEC. 3(A)
IN PARTICULAR, CONTRAVENES IT; AND OUR DECISIONS CONSTRUING SEC. 3(A)
HAVE REJECTED IT.  OUR CONCLUSION IS THAT CONGRESS INVOKED ITS
CONSTITUTIONAL POWER SO AS TO PROVIDE COMPENSATION FOR ALL INJURIES
SUSTAINED BY EMPLOYEES ON NAVIGABLE WATERS (FN4) WHETHER OR NOT A
PARTICULAR INJURY MIGHT ALSO HAVE BEEN WITHIN THE CONSTITUTIONAL REACH
OF A STATE WORKMEN'S COMPENSATION LAW. 

THE LONGSHOREMEN'S ACT WAS PASSED IN 1927.  THE CONGRESS WHICH
ENACTED IT WOULD HAVE PREFERRED TO LEAVE TO STATE COMPENSATION LAWS THE
MATTER OF INJURIES SUSTAINED BY EMPLOYEES ON NAVIGABLE WATERS WITHIN
STATE BOUNDARIES.  HOWEVER, IN 1917 THIS COURT HAD DECIDED IN SOUTHERN
PACIFIC CO. V. JENSEN, 244 U.S. 205, THAT THE NEW YORK COMPENSATION ACT
COULD NOT, CONSTITUTIONALLY, BE APPLIED TO AN INJURY SUSTAINED ON A
GANGPLANK BETWEEN A VESSEL AND A WHARF.  (FN5)  IT WAS HELD THAT THE
MATTER WAS OUTSIDE STATE COGNIZANCE AND EXCLUSIVELY WITHIN FEDERAL
MARITIME JURISDICTION, SINCE TO HOLD OTHERWISE WOULD IMPAIR THE HARMONY
AND UNIFORMITY WHICH THE CONSTITUTIONAL GRANT TO THE FEDERAL GOVERNMENT
OF THE ADMIRALTY POWER WAS MEANT TO ASSURE.  WHILE THE COURT
ACKNOWLEDGED THAT "IT WOULD BE DIFFICULT, IF NOT IMPOSSIBLE, TO DEFINE
WITH EXACTNESS JUST HOW FAR THE GENERAL MARITIME LAW MAY BE CHANGED,
MODIFIED, OR AFFECTED BY STATE LEGISLATION," 244 U.S., AT 216, THE
OPINION APPEARED TO FORECLOSE THE APPLICATION OF A STATE COMPENSATION
REMEDY TO ANY MARITIME INJURY. 

THE JENSEN DECISION DEPRIVED MANY THOUSANDS OF EMPLOYEES OF THE
BENEFITS OF WORKMEN'S COMPENSATION.  CONGRESS TWICE ATTEMPTED TO DEAL
WITH THE SITUATION BY LEGISLATION EXPRESSLY ALLOWING STATE COMPENSATION
STATUTES TO OPERATE.  ACT OF OCTOBER 6, 1917, 40 STAT. 395; ACT OF JUNE
10, 1922, 42 STAT. 634.  BUT THIS COURT STRUCK DOWN BOTH STATUTES AS
UNCONSTITUTIONAL DELEGATIONS TO THE STATES OF THE LEGISLATIVE POWER OF
CONGRESS, AND AS TENDING TO DEFEAT THE PURPOSE OF THE CONSTITUTION TO
ACHIEVE HARMONY AND UNIFORMITY IN THE MARITIME LAW.  KNICKERBOCKER ICE
CO. V. STEWART, 253 U.S. 149; WASHINGTON V. DAWSON & CO., 264 U.S.
219. 

MEANWHILE THE COURT HANDED DOWN A NUMBER OF DECISIONS WHICH APPEARED
TO MODIFY JENSEN BY PERMITTING STATES TO APPLY THEIR STATUTES TO SOME
MARITIME INJURIES.  BUT WE MUST CANDIDLY ACKNOWLEDGE THAT THE DECISIONS
BETWEEN 1917 AND 1926 PRODUCED NO RELIABLE DETERMINANT OF VALID STATE
LAW COVERAGE.  IN WESTERN FUEL CO. V. GARCIA, 257 U.S. 233, DECIDED IN
1921, THE COURT UPHELD THE JURISDICTION OF A UNITED STATES DISTRICT
COURT TO ENTERTAIN A LIBEL IN ADMIRALTY FOR DAMAGES FOR THE DEATH OF A
LONGSHOREMAN UNDER A STATE WRONGFUL DEATH STATUTE.  THE COURT REASONED
THAT WHILE THE SUBJECT WAS MARITIME IT WAS "LOCAL IN CHARACTER" AND
THAT APPLICATION OF THE STATE STATUTE "WILL NOT WORK MATERIAL PREJUDICE
TO THE CHARACTERISTIC FEATURES OF THE GENERAL MARITIME LAW, NOR
INTERFERE WITH THE PROPER HARMONY AND UNIFORMITY OF THAT LAW IN ITS
INTERNATIONAL AND INTERSTATE RELATIONS."  257 U.S., AT 242. 

JUST A MONTH LATER THE COURT DECIDED GRANT SMITH-PORTER SHIP CO. V.
ROHDE, SUPRA, WHERE, AS IN THE CASES BEFORE US, A SHIPBUILDER'S
EMPLOYEE WAS INJURED WHILE AT WORK ON NEW CONSTRUCTION AFLOAT ON
NAVIGABLE WATERS.  HE RECOVERED A JUDGMENT UNDER A LIBEL IN ADMIRALTY,
ALTHOUGH OREGON HAD A STATE WORKMEN'S COMPENSATION LAW WHICH MADE THE
REMEDY THEREUNDER EXCLUSIVE OF ALL OTHER CLAIMS AGAINST THE EMPLOYER ON
ACCOUNT OF THE INJURY.  THIS COURT REVERSED THAT JUDGMENT, HOLDING THAT
THE ACCIDENT WAS AMONG THOSE "CERTAIN LOCAL MATTERS REGULATION OF WHICH
(BY THE STATES) WOULD WORK NO MATERIAL PREJUDICE TO THE GENERAL
MARITIME LAW."  257 U.S., AT 477. 

NO DEPENDABLE DEFINITION OF THE AREA - DESCRIBED AS "MARITIME BUT
LOCAL," OR "OF LOCAL CONCERN" - WHERE STATE LAWS COULD APPLY EVER
EMERGED FROM THE MANY CASES WHICH DEALT WITH THE MATTER IN THIS AND THE
LOWER COURTS.  THE SUREST THAT COULD BE SAID WAS THAT ANY PARTICULAR
INJURY MIGHT BE WITHIN THE AREA OF "LOCAL CONCERN," DEPENDING UPON ITS
PECULIAR FACTS.  IN NUMEROUS SITUATIONS STATE ACTS WERE CONSIDERED
INAPPLICABLE BECAUSE THEY WERE THOUGHT TO WORK MATERIAL PREJUDICE TO
THE CHARACTERISTIC FEATURES OF THE GENERAL MARITIME LAW PARTICULARLY IN
CASES OF EMPLOYEES ENGAGED IN REPAIR WORK.  (FN6)  ON THE OTHER HAND,
AWARDS UNDER STATE COMPENSATION ACTS WERE SUSTAINED IN SITUATIONS
WHEREIN THE EFFECT ON UNIFORMITY WAS OFTEN DIFFICULT TO DISTINGUISH
FROM THOSE FOUND TO BE OUTSIDE THE PURVIEW OF STATE LAWS.  (FN7) 

THUS, THE PROBLEM WHICH CONFRONTED CONGRESS IN 1927 HAD TWO FACETS. 
ONE WAS THAT THE FAILURE OF CONGRESS' ATTEMPTS TO SHELTER THE EMPLOYEES
UNDER STATE COMPENSATION LAWS RENDERED IT CERTAIN THAT FOR MANY
MARITIME INJURIES NO COMPENSATION REMEDY WAS AVAILABLE.  THE OTHER WAS
THAT THE COURSE OF JUDICIAL DECISION HAD CREATED SUBSTANTIAL WORKING
UNCERTAINTY IN THE ADMINISTRATION OF COMPENSATION.   CONGRESS TURNED TO
A UNIFORM FEDERAL COMPENSATION LAW AS AN INSTRUMENT FOR DEALING WITH
BOTH FACETS.  INDEED, THE COURT IN DAWSON HAD INVITED SUCH
CONSIDERATION, SAYING:  "WITHOUT DOUBT CONGRESS HAS POWER TO ALTER,
AMEND OR REVISE THE MARITIME LAW BY STATUTES OF GENERAL APPLICATION
EMBODYING ITS WILL AND JUDGMENT.  THIS POWER, WE THINK, WOULD PERMIT
ENACTMENT OF A GENERAL EMPLOYERS' LIABILITY LAW OR GENERAL PROVISIONS
FOR COMPENSATING INJURED EMPLOYEES; BUT IT MAY NOT BE DELEGATED TO THE
SEVERAL STATES."  264 U.S., AT 227. 

THE PROPOSAL OF A UNIFORM FEDERAL COMPENSATION ACT HAD THE
UNQUALIFIED SUPPORT OF BOTH EMPLOYERS AND EMPLOYEE REPRESENTATIVES. 
WORKMEN'S COMPENSATION HAD GAINED WIDE ACCEPTANCE THROUGHOUT THE
COUNTRY AND STATE AFTER STATE WAS ENACTING IT.  (FN8)  BUT HARD BATTLES
WERE FOUGHT IN COMMITTEE AND ON THE FLOOR IN BOTH HOUSES OF CONGRESS
OVER THE FORM OF THE LAW.  THE BILL INTRODUCED IN THE SENATE, S. 3170,
BECAME THE BASIS OF THE LAW. 

THERE EMERGES FROM THE COMPLETE LEGISLATIVE HISTORY (FN9) A
CONGRESSIONAL DESIRE FOR A STATUTE WHICH WOULD PROVIDE FEDERAL
COMPENSATION FOR ALL INJURIES TO EMPLOYEES ON NAVIGABLE WATERS; IN
EVERY CASE, THAT IS, WHERE JENSEN MIGHT HAVE SEEMED TO PRECLUDE STATE
COMPENSATION.  THE STATUTE'S FRAMERS ADOPTED THIS SCHEME IN THE ACT
BECAUSE THEY MEANT TO ASSURE THE EXISTENCE OF A COMPENSATION REMEDY FOR
EVERY SUCH INJURY, (FN10) WITHOUT LEAVING EMPLOYEES AT THE MERCY OF THE
UNCERTAINTY, EXPENSE, AND DELAY OF FIGHTING OUT IN LITIGATION WHETHER
THEIR PARTICULAR CASES FELL WITHIN OR WITHOUT STATE ACTS UNDER THE
"LOCAL CONCERN" DOCTRINE. 

THE GRAVITY OF THE PROBLEM OF UNCERTAINTY WAS EMPHASIZED WHEN SEC. 3
OF S. 3170 IN ITS ORIGINAL FORM WAS UNDER DISCUSSION AT THE SENATE
HEARINGS.  THAT VERSION OF SEC. 3 PROVIDED: "THIS ACT SHALL APPLY TO
ANY EMPLOYMENT PERFORMED ON A PLACE WITHIN THE ADMIRALTY JURISDICTION
OF THE UNITED STATES, EXCEPT EMPLOYMENT OF LOCAL CONCERN AND OF NO
DIRECT RELATION TO NAVIGATION AND COMMERCE; BUT SHALL NOT APPLY TO
EMPLOYMENT AS MASTER OR MEMBER OF THE CREW OF A VESSEL."  THE CHAIRMAN
OF THE SENATE COMMITTEE PERCEIVED THAT TO CREATE AN EXEMPTION FOR
"EMPLOYMENT OF LOCAL CONCERN" THREATENED TO PERPETUATE THE VERY
UNCERTAINTIES OF COVERAGE THAT CONGRESS WISHED TO AVOID.  (FN11)  THE
DANGER WAS UNDERLINED BY OBJECTIONS ON BEHALF OF TWO LARGE EMPLOYER
GROUPS.  THEY NOT ONLY EXPRESSED CONCERN ABOUT THE PRACTICAL PROBLEMS
CREATED BY THE LINE BETWEEN NEW CONSTRUCTION AND REPAIR, SENATE
HEARINGS, AT 92-93, BUT ALSO ABOUT THE BROADER IMPLICATIONS OF THE
WORDING:  "THIS PROVISION IS INDEFINITE.  THE EXCEPTION OF 'EMPLOYMENT
OF LOCAL CONCERN AND OF NO DIRECT RELATION TO NAVIGATION AND COMMERCE'
IS VAGUE AND WILL BE THE SUBJECT OF CONTINUAL LITIGATION.  INNUMERABLE
CLAIMS WILL BECOME LEGAL QUESTIONS REQUIRING DETERMINATION BY THE
COURTS."  SENATE HEARINGS, AT 95. 

WE ARE NOT PRIVY TO THE COMMITTEE DELIBERATIONS AT WHICH IT WAS
DECIDED TO DROP THE "LOCAL CONCERN" LANGUAGE FROM SEC. 3 AND SUBSTITUTE
THE LANGUAGE NOW IN THE STATUTE.  WE THINK IT A REASONABLE INFERENCE
THAT THE COMMITTEE CONCLUDED THAT THE EXEMPTION FOR "EMPLOYMENT OF
LOCAL CONCERN" WOULD DEFEAT THE OBJECTIVE OF AVOIDING THE UNCERTAINTY
CREATED BY JENSEN AND ITS PROGENY. 

THE ACTION OF THE HOUSE COMMITTEE, WHEN S. 3170 AS REVISED IN THE
SENATE CAME BEFORE IT, DISCLOSES SIMILAR PREOCCUPATIONS.  THE HOUSE
COMMITTEE REWROTE SEC. 3 TO OMIT BOTH THE ORIGINAL "LOCAL CONCERN"
LANGUAGE AND THE SENATE SUBSTITUTE.  (FN12)  A PARLIAMENTARY OBSTACLE
ON AN UNRELATED ISSUE LED TO THE HOUSE COMMITTEE'S FINALLY ACCEPTING
THE SENATE VERSION.  (FN13) 

IN SUM, IT APPEARS THAT THE LONGSHOREMEN'S ACT WAS DESIGNED TO ENSURE
THAT A COMPENSATION REMEDY EXISTED FOR ALL INJURIES SUSTAINED BY
EMPLOYEES ON NAVIGABLE WATERS, AND TO AVOID UNCERTAINTY AS TO THE
SOURCE, STATE OR FEDERAL, OF THAT REMEDY.  SECTION 3(A) SHOULD, THEN,
BE CONSTRUED TO ACHIEVE THESE PURPOSES.  PLAINLY, THE COURT OF APPEALS'
INTERPRETATION, FIXING THE BOUNDARIES OF FEDERAL COVERAGE WHERE THE
OUTER LIMITS OF STATE COMPETENCE HAD BEEN LEFT BY THE PRE-1927
CONSTITUTIONAL DECISIONS, DOES NOT ACHIEVE THEM. 

IN THE FIRST PLACE, THE CONTOURS OF THE "LOCAL CONCERN" CONCEPT WERE
AND HAVE REMAINED NECESSARILY VAGUE AND UNCERTAIN.  THERE HAS NEVER
BEEN ANY METHOD OF STAKING THEM OUT EXCEPT LITIGATION IN PARTICULAR
CASES. 

IN THE SECOND PLACE, TO CONCLUDE THAT FEDERAL COVERAGE EXTENDS TO THE
LIMITS OF NAVIGABLE WATERS, EXCEPT IN THOSE CASES WHERE A STATE
COMPENSATION REMEDY "MAY" CONSTITUTIONALLY BE PROVIDED, WOULD MEAN
THAT, CONTRARY TO THE CONGRESSIONAL PURPOSE, SOME INJURIES TO EMPLOYEES
ON NAVIGABLE WATERS MIGHT NOT BE COMPENSABLE UNDER ANY STATUTE.  A
VACUUM WOULD EXIST AS TO ANY INJURY WHICH, ALTHOUGH OCCURRING WITHIN
THE  CONSTITUTIONAL DOMAIN OF "LOCAL CONCERN," WAS IN FACT NOT COVERED
BY ANY STATE STATUTE.  A RESTRICTION OF FEDERAL COVERAGE SHORT OF THE
LIMITS OF THE MARITIME JURISDICTION COULD HAVE AVOIDED DEFEATING THE
OBJECTIVE OF ASSURING A COMPENSATION REMEDY FOR EVERY INJURY ON
NAVIGABLE WATERS ONLY IF CONGRESS HAD PROVIDED THAT FEDERAL
COMPENSATION WOULD REACH ANY CASE NOT ACTUALLY COVERED BY A STATE
STATUTE.  BUT IN ORDER TO HAVE ACCOMPLISHED THIS RESULT, THE STATUTE
WOULD HAVE HAD TO WITHDRAW FEDERAL COVERAGE, NOT WHEREVER A STATE
COMPENSATION REMEDY "MAY BE" VALIDLY PROVIDED, BUT ONLY WHEREVER A
STATE COMPENSATION REMEDY "IS" VALIDLY PROVIDED.  EVEN IF A COURT COULD
PROPERLY READ "MAY BE" AS MEANING "IS," SUCH A READING WOULD MAKE
FEDERAL COVERAGE IN THE "LOCAL CONCERN" AREA DEPEND ON WHETHER OR NOT A
STATE LEGISLATURE HAD TAKEN CERTAIN ACTION - AN INTENTION PLAINLY NOT
TO BE IMPUTED TO A CONGRESS WHOSE RECENT EFFORTS TO LEAVE THE MATTER
ENTIRELY TO THE STATES HAD TWICE BEEN STRUCK DOWN AS UNCONSTITUTIONAL
DELEGATIONS OF CONGRESSIONAL POWER.    FINALLY, THERE WOULD HAVE BEEN
NO IMAGINABLE PURPOSE IN CARVING THE AREA OF "LOCAL CONCERN" OUT OF THE
FEDERAL COVERAGE EXCEPT TO LEAVE THE GREATEST POSSIBLE NUMBER OF CASES
EXCLUSIVELY TO THE STATES.  THE PRICE OF SUCH AN OBJECTIVE WOULD HAVE
INCLUDED THE ADOPTION OF WHATEVER SEEMINGLY ANOMALOUS DISTINCTIONS THE
COURTS MIGHT HAVE DEVELOPED IN ARTICULATING THE CONTOURS OF "LOCAL
CONCERN," AS WELL AS THE RISK OF A TOTAL FAILURE OF COMPENSATION IN
CASES WITHIN THE "LOCAL CONCERN" REALM FOR WHICH NO STATE COMPENSATION
HAD BEEN PROVIDED.  AND IN ANY EVENT, A CONGRESSIONAL PURPOSE TO LEAVE
THE MAXIMUM POSSIBLE BUSINESS EXCLUSIVELY TO THE STATES WOULD NEGATE
THE COURT OF APPEALS' READING OF THE LINE OF DEMARCATION AS A STATIC
ONE FIXED AT PRE-1927 CONSTITUTIONAL DECISIONS.  SUCH A PURPOSE WOULD
REQUIRE, RATHER, THAT FEDERAL COVERAGE EXPAND AND RECEDE IN HARNESS
WITH DEVELOPMENTS IN CONSTITUTIONAL INTERPRETATION AS TO THE SCOPE OF
STATE POWER TO COMPENSATE INJURIES ON NAVIGABLE WATERS.  BUT THAT WOULD
MEAN THAT EVERY LITIGATION RAISING AN ISSUE OF FEDERAL COVERAGE WOULD
RAISE AN ISSUE OF CONSTITUTIONAL DIMENSION, WITH ALL THAT THAT IMPLIES;
AND THAT EACH AND EVERY AWARD OF FEDERAL COMPENSATION WOULD EQUALLY BE
A CONSTITUTIONALLY PREMISED DENIAL OF STATE COMPETENCE IN A LIKE
SITUATION.  WE CANNOT CONCLUDE THAT CONGRESS IMPOSED SUCH A BURDEN ON
THE ADMINISTRATION OF COMPENSATION BY THUS PERPETUATING THE CONFUSION
GENERATED BY JENSEN.  TO DISPEL THAT CONFUSION WAS ONE OF THE CHIEF
PURPOSES OF THE LONGSHOREMEN'S ACT. 

WE CONCLUDE THAT CONGRESS USED THE PHRASE "IF RECOVERY  ...  MAY NOT
VALIDLY BE PROVIDED BY STATE LAW" IN A SENSE CONSISTENT WITH THE
DELINEATION OF COVERAGE AS REACHING INJURIES OCCURRING ON NAVIGABLE
WATERS.  BY THAT LANGUAGE CONGRESS REITERATED THAT THE ACT REACHED ALL
THOSE CASES OF INJURY TO EMPLOYEES ON NAVIGABLE WATERS AS TO WHICH
JENSEN, KNICKERBOCKER AND DAWSON HAD RENDERED QUESTIONABLE THE
AVAILABILITY OF A STATE COMPENSATION REMEDY.  (FN14)  CONGRESS BROUGHT
UNDER THE COVERAGE OF THE ACT ALL SUCH INJURIES WHETHER OR NOT A
PARTICULAR ONE WAS ALSO WITHIN THE CONSTITUTIONAL REACH OF A STATE
WORKMEN'S COMPENSATION LAW.  (FN15) 

OUR PREVIOUS DECISIONS UNDER THE ACT ARE ENTIRELY CONSISTENT WITH OUR
CONCLUSION.  IN PARKER V. MOTOR BOAT SALES, INC., 314 U.S. 244, AN
EMPLOYEE OF A SELLER OF SMALL BOATS, MARITIME SUPPLIES AND OUTBOARD
MOTORS, HIRED PRIMARILY AS A JANITOR AND PORTER, WAS DROWNED WHEN A
BOAT IN WHICH HE WAS RIDING CAPSIZED ON THE JAMES RIVER OFF RICHMOND,
VIRGINIA.  THE BOAT BELONGED TO A CUSTOMER OF HIS EMPLOYER AND HE AND A
FELLOW EMPLOYEE WERE TESTING ONE OF THE EMPLOYER'S OUTBOARD MOTORS FOR
WHICH THE BOATOWNER WAS A PROSPECTIVE PURCHASER.  THE COURT OF APPEALS
FOR THE FOURTH CIRCUIT HAD HELD THAT THE EMPLOYEE'S WORK WAS "SO LOCAL
IN CHARACTER" THAT VIRGINIA COULD VALIDLY HAVE INCLUDED IT UNDER A
STATE WORKMEN'S COMPENSATION ACT, AND SO HAD SET ASIDE AN AWARD TO THE
EMPLOYEE'S DEPENDENTS UNDER THE LONGSHOREMEN'S ACT.  THIS COURT
REVERSED.  WE NOTED THAT "IT IS NOT DOUBTED THAT CONGRESS COULD
CONSTITUTIONALLY HAVE PROVIDED FOR RECOVERY UNDER A FEDERAL STATUTE IN
THIS KIND OF SITUATION.   THE QUESTION IS WHETHER CONGRESS HAS SO
PROVIDED IN THIS STATUTE" IN THE LIGHT OF SEC. 3(A).  314 U.S., AT
248.  THE COURT HELD THAT SEC. 3(A) DID NOT EXCLUDE COVERAGE UNDER THE
ACT, SAYING:  "THERE CAN BE NO DOUBT THAT THE PURPOSE OF THE ACT WAS TO
PROVIDE FOR FEDERAL COMPENSATION IN THE AREA WHICH THE SPECIFIC
DECISIONS REFERRED TO (IN THE SENATE REPORT - JENSEN, KNICKERBOCKER,
AND DAWSON - ) PLACED BEYOND THE REACH OF THE STATES.  THE PROVISO
PERMITTING RECOVERY ONLY WHERE COMPENSATION 'MAY NOT VALIDLY BE
PROVIDED BY STATE LAW' CANNOT BE READ IN A MANNER THAT WOULD DEFEAT
THIS PURPOSE."  314 U.S., AT 249-250.  WE THUS HELD THAT WHATEVER MAY
BE SEC. 3(A)'S "SUBTRACTION FROM THE SCOPE OF THE ACT," ID., AT 249,
THE ACT'S ADOPTION OF THE JENSEN LINE BETWEEN ADMIRALTY AND STATE
JURISDICTION AS THE LIMIT OF FEDERAL COVERAGE INCLUDED NO EXCEPTION FOR
MATTERS OF "LOCAL CONCERN." 

IN DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249, A STRUCTURAL STEEL
WORKER ENGAGED IN DISMANTLING A BRIDGE ACROSS A NAVIGABLE RIVER WAS
CUTTING AND STOWING DISMANTLED STEEL IN A BARGE WHEN HE FELL INTO THE
RIVER FROM THE BARGE AND WAS DROWNED.  HIS DEPENDENTS SOUGHT
COMPENSATION UNDER THE STATE ACT AND THIS COURT HELD THAT IT COULD BE
APPLIED.  THE RESULT WAS NOT PREDICATED ON THE GROUND THAT THE
EMPLOYMENT WAS "MARITIME BUT LOCAL," AND SO OUTSIDE THE COVERAGE OF THE
LONGSHOREMEN'S ACT.  RATHER THE COURT VIEWED THE CASE AS IN A "TWILIGHT
ZONE" WHERE THE APPLICABILITY OF STATE LAW WAS "EXTREMELY DIFFICULT" TO
DETERMINE, AND RESOLVED THE DOUBT, OF COURSE, IN FAVOR OF THE
CONSTITUTIONALITY OF THE APPLICATION OF STATE LAW.  AT THE SAME TIME,
THE COURT INDICATED THAT COMPENSATION MIGHT ALSO HAVE BEEN SOUGHT UNDER
THE LONGSHOREMEN'S ACT AND THAT AN AWARD UNDER THAT ACT IN THE VERY
SAME CIRCUMSTANCES WOULD HAVE BEEN SUPPORTABLE, POINTING OUT THAT THE
ACT ADOPTS "THE JENSEN LINE OF DEMARCATION."  317 U.S., AT 256.  THE
CONCLUSION THAT THE LONGSHOREMEN'S ACT MIGHT HAVE APPLIED WITHOUT
REGARD TO WHETHER THE SITUATION MIGHT BE "MARITIME BUT LOCAL" PLAINLY
IMPLIES A REJECTION OF ANY READING OF SEC.  3(A) TO EXCLUDE COVERAGE IN
SUCH SITUATION. 

THE ISSUE IN AVONDALE MARINE WAYS, INC., V. HENDERSON, 346 U.S. 366,
WAS WHETHER COMPENSATION WAS AVAILABLE UNDER THE LONGSHOREMEN'S ACT FOR
THE DEATH OF AN EMPLOYEE KILLED WHILE ENGAGED IN THE REPAIR OF A VESSEL
WHICH WAS THEN PHYSICALLY LOCATED ON LAND, BUT ON A MARINE RAILWAY. 
SINCE A MARINE RAILWAY WAS CONSIDERED TO BE A "DRY DOCK," THE INJURY
SATISFIED SEC. 3(A)'S REQUIREMENT THAT IT OCCUR "UPON  ...  NAVIGABLE
WATERS," DEFINED IN SEC. 3 AS "INCLUDING ANY DRY DOCK."  AT THE SAME
TIME, SINCE THE INJURY DID, IN A PHYSICAL SENSE, OCCUR ON LAND, THERE
IS LITTLE DOUBT THAT A STATE COMPENSATION ACT COULD VALIDLY HAVE BEEN
APPLIED TO IT.  SEE STATE COMMISSION V. NORDENHOLT CORP., 259 U.S.
263.  NEVERTHELESS, THIS COURT AFFIRMED AN AWARD OF COMPENSATION UNDER
THE FEDERAL ACT IN A PER CURIAM OPINION. 

THE LEGISLATIVE HISTORY AND OUR DECISIONS HAD BEEN READ CONSISTENTLY
WITH THE VIEWS EXPRESSED HEREIN BY THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT BEFORE THE DECISIONS IN THE PRESENT CASES.  JUDGE HUTCHESON
SAID FOR THE COURT IN DE BARDELEBEN COAL CORP. V. HENDERSON, 142 F.2D
481, 483-484: 

"BEFORE THE PARKER CASE WAS DECIDED  ...  THIS COURT, IN CONTINENTAL
CASUALTY CO. V. LAWSON, 5 CIR., 64 F.2D 802, 804, ANNOUNCED THE VIEW
THAT THE FEDERAL COMPENSATION LAWS SHOULD BE LIBERALLY CONSTRUED TO
COVER EVERY CASE WHERE THE INJURY OCCURRED ON NAVIGABLE WATERS AND
WHERE WITHIN THE RULE OF (JENSEN)  ...  THE ACTION WOULD HAVE BEEN IN
ADMIRALTY.  IN THAT CASE WE SAID: 

"THE QUESTION WHETHER JURISDICTION OVER A MARITIME TORT COULD BE
ASSERTED UNDER THE COMPENSATION LAWS OF THE STATES, OR EXISTED
EXCLUSIVELY IN ADMIRALTY, WAS AN IMPORTANT ONE WHEN THE DECISIONS WERE
RENDERED IN THE ROHDE  ...  AND OTHER SIMILAR CASES  ...  BUT SINCE THE
PASSAGE OF THIS ACT (THE FEDERAL WORKMEN'S COMPENSATION ACT) THE
IMPORTANCE OF THAT QUESTION HAS LARGELY DISAPPEARED ...  .  THE
ELABORATE PROVISIONS OF THE ACT, VIEWED IN THE LIGHT OF PRIOR
CONGRESSIONAL LEGISLATION AS INTERPRETED BY THE SUPREME COURT, LEAVES
NO ROOM FOR DOUBT, AS IT APPEARS TO US, THAT CONGRESS INTENDED TO
EXERCISE TO THE FULLEST EXTENT ALL THE POWER AND JURISDICTION IT HAD
OVER THE SUBJECT-MATTER  ...  .' 

"THE PARKER CASE, SUPRA, SUBSTANTIALLY ADOPTS THIS VIEW  ...  .  AS
THE PARKER CASE POINTED OUT, IT IS NOT AT ALL NECESSARY NOW TO
REDETERMINE THE CORRECTNESS VEL NON OF THE JENSEN CASE OR OF ANY OF ITS
BROOD  ...  .  IT IS SUFFICIENT TO SAY THAT CONGRESS INTENDED THE
COMPENSATION ACT TO HAVE A COVERAGE CO-EXTENSIVE WITH THE LIMITS OF ITS
AUTHORITY AND THAT THE PROVISION 'IF RECOVERY  ...  MAY NOT VALIDLY BE
PROVIDED BY STATE LAW' WAS PLACED IN THE ACT NOT AS A RELINQUISHMENT OF
ANY PART OF THE FIELD WHICH CONGRESS COULD VALIDLY OCCUPY BUT ONLY TO
SAVE THE ACT FROM JUDICIAL CONDEMNATION, BY MAKING IT CLEAR THAT IT DID
NOT INTEND TO LEGISLATE BEYOND ITS CONSTITUTIONAL POWERS  ...  .  IN
THE APPLICATION OF THE ACT, THEREFORE, THE BROADEST GROUND IT PERMITS
OF SHOULD BE TAKEN.  NO GROUND SHOULD BE YIELDED TO STATE JURISDICTION
IN CASES FALLING WITHIN THE PRINCIPLE OF THE JENSEN CASE MERELY BECAUSE
THE SUPREME COURT, BEFORE THE FEDERAL COMPENSATION LAW WENT INTO
EFFECT, DID HERE A LITTLE, THERE A LITTLE, CHIP AND WHITTLE JENSEN DOWN
IN THE MASS OF CONFLICTING AND CONTRADICTORY DECISIONS IN WHICH IT
ADVANCED AND APPLIED THE 'LOCAL CONCERN' DOCTRINE TO SAVE TO EMPLOYEES
INJURED ON NAVIGABLE WATERS, AND OTHERWISE REMEDILESS, THE REMEDIES
STATE COMPENSATION LAWS AFFORDED THEM ...  .  THIS IS WHAT WE HELD IN
THE LAWSON CASE, WHAT THE SUPREME COURT HELD IN THE PARKER CASE, SUPRA
...  ." 

WE TURN FINALLY TO A QUESTION RAISED ONLY IN DONOVAN V. AVONDALE
SHIPYARDS.  THE EMPLOYER CONTENDS THAT THE EMPLOYEE ACCEPTED BENEFITS
UNDER THE LOUISIANA STATE COMPENSATION ACT AND THAT THIS CONSTITUTES AN
ELECTION OF REMEDIES WHICH BARS PROSECUTION OF HIS CLAIM UNDER THE
LONGSHOREMEN'S ACT.  COMPENSATION PAYMENTS MAY BE MADE UNDER THE
LOUISIANA COMPENSATION ACT WITHOUT A PRIOR ADMINISTRATIVE PROCEEDING. 
BEFORE THE FEDERAL CLAIM WAS FILED AVONDALE MADE PAYMENTS TO THE
EMPLOYEE FOR SOME TWO YEARS AND THREE MONTHS AT THE MAXIMUM RATE
PROVIDED BY THE LOUISIANA STATUTE.  THE EMPLOYEE ACCEPTED THE CHECKS
WHICH BORE A NOTATION ON THEIR FACE THAT THEY WERE PAYMENTS OF
COMPENSATION UNDER THE STATE ACT.  IN ADDITION AVONDALE ADVANCED A
SUBSTANTIAL SUM TO THE EMPLOYEE TO BE CREDITED AGAINST FUTURE
COMPENSATION PAYMENTS.  AVONDALE ALSO PAID MEDICAL EXPENSES FOR THE
EMPLOYEE'S ACCOUNT IN EXCESS OF THE MAXIMUM LIABILITY IMPOSED BY THE
LOUISIANA STATUTE.  IN THE COMPENSATION ORDER ENTERED BY DEPUTY
COMMISSIONER DONOVAN UNDER THE LONGSHOREMEN'S ACT THE FULL AMOUNT OF
ALL PAYMENTS MADE BY THE EMPLOYER WAS CREDITED AGAINST THE AWARD, AND
NO IMPERMISSIBLE DOUBLE RECOVERY IS POSSIBLE.  WE HOLD THAT THE
ACCEPTANCE OF THE PAYMENTS DOES NOT CONSTITUTE AN ELECTION OF THE
REMEDY UNDER STATE LAW PRECLUDING RECOVERY UNDER THE LONGSHOREMEN'S
ACT.  NOTHING IN THE STATUTE REQUIRES A CONTRARY RESULT.  AND WE AGREE
THAT THE CIRCUMSTANCES DO NOT SUPPORT A FINDING OF A BINDING ELECTION
TO LOOK SOLELY TO THE STATE LAW FOR RECOVERY.  MASSACHUSETTS BONDING &
INSURANCE CO. V. LAWSON, 149 F.2D 853; NEWPORT NEWS SHIPBUILDING & DRY
DOCK CO. V. O'HEARNE, 192 F.2D 968; WESTERN BOAT BUILDING CO. V.
O'LEARY, 198 F.2D 409.  (FN16) 

THE JUDGMENTS OF THE COURT OF APPEALS ARE REVERSED AND THE JUDGMENTS
OF THE DISTRICT COURTS ARE AFFIRMED.  IT IS SO ORDERED. 

FN1 THE ACT, 44 STAT. 1424, AS AMENDED, IS COMPRISED IN 33 U.S.C.
SECS. 901-950.  SECTION 3(A), 33 U.S.C. SEC. 903(A), READS: 

"(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.  NO COMPENSATION SHALL BE PAYABLE IN
RESPECT OF THE DISABILITY OR DEATH OF: 

"(1)  A MASTER OR MEMBER OF A CREW OF ANY VESSEL, NOR ANY PERSON
ENGAGED BY THE MASTER TO LOAD OR UNLOAD OR REPAIR ANY SMALL VESSEL
UNDER EIGHTEEN TONS NET; OR: 

"(2)  AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR ANY AGENCY
THEREOF OR OF ANY STATE OR FOREIGN GOVERNMENT, OR OF ANY POLITICAL
SUBDIVISION THEREOF." 

FN2  IN THE CALBECK CASE THE EMPLOYEE, ROGER MCGUYER, WAS A WELDER IN
THE EMPLOY OF THE LEVINGSTON SHIPBUILDING COMPANY WHICH OWNS AND
OPERATES A SHIPYARD ON THE NAVIGABLE SABINE RIVER, BETWEEN ORANGE,
TEXAS, AND CALCASIEU PARISH, LOUISIANA.  MCGUYER WORKED BOTH ON THE
REPAIR OF COMPLETED VESSELS AND ON VESSELS UNDER CONSTRUCTION.  HE WAS
INJURED WHILE WORKING ON AN UNCOMPLETED DRILLING BARGE WHICH HAD BEEN
LAUNCHED AND WAS FLOATING ON THE SABINE RIVER WHILE ITS SUPERSTRUCTURE
WAS UNDER CONSTRUCTION. 

IN THE DONOVAN CASE THE EMPLOYEE, MINUS AIZEN, WAS ALSO A WELDER. 
HIS EMPLOYER WAS AVONDALE MARINE WAYS, INC., WHICH OPERATED TWO
SHIPYARDS NEAR NEW ORLEANS.  AIZEN HAD WORKED ONLY ON NEW CONSTRUCTION
ALTHOUGH FELLOW EMPLOYEES WORKED BOTH ON NEW CONSTRUCTION AND ON REPAIR
WORK.  HE WAS INJURED WHILE WELDING ON AN OIL DRILLING BARGE WHICH HAD
BEEN LAUNCHED AND WAS FLOATING ON THE NAVIGABLE WATERS OF THE
MISSISSIPPI RIVER WHILE HER CONSTRUCTION WAS BEING COMPLETED. 

FN3  SEE GREAT LAKES DREDGE & DOCK CO. V. KIEREJEWSKI, 261 U.S. 479;
GONSALVES V. MORSE DRY DOCK & REPAIR CO., 266 U.S. 171; ROBINS DRY DOCK
& REPAIR CO. V. DAHL, 266 U.S. 449.  SEE ALSO BAIZLEY IRON WORKS V.
SPAN, 281 U.S. 222, 230-232. 

FN4  OUR USE OF THE TERM "EMPLOYEES" THROUGHOUT THIS OPINION EXCLUDES
THOSE SPECIAL CATEGORIES DESCRIBED IN SUBSECTIONS (1) AND (2) OF SEC.
3(A), SEE NOTE 1, SUPRA; AND ASSUMES THAT THEY ARE EMPLOYED BY AN
"EMPLOYER" AS DEFINED IN SEC. 2(4), 33 U.S.C. SEC. 902(4), I.E., "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)." 

FN5  THE CONSTITUTIONALITY OF THE NEW YORK STATUTE IN OTHER RESPECTS
WAS SUSTAINED AT THE SAME TERM.  NEW YORK CENTRAL R. CO. V. WHITE, 243
U.S. 188.  THE VALIDITY OF THE WASHINGTON AND IOWA STATUTES WAS ALSO
UPHELD.  MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S. 219; HAWKINS V.
BLEAKLY, 243 U.S. 210. 

FN6  SEE, E.G., GREAT LAKES DREDGE & DOCK CO. V. KIEREJEWSKI, 261
U.S. 479; GONSALVES V. MORSE DRY DOCK & REPAIR CO., 266 U.S. 171;
ROBINS DRY DOCK & REPAIR CO. V. DAHL, 266 U.S. 449. 

FN7  SEE, E.G., STATE COMMISSION V. NORDENHOLT CORP., 259 U.S. 263;
MILLERS INDEMNITY UNDERWRITERS V. BRAUD, 270 U.S. 59.    FN8  SEE 1
LARSON, THE LAW OF WORKMEN'S COMPENSATION, SECS. 4.10-5.30. 

FN9  HEARINGS BEFORE THE SENATE JUDICIARY COMMITTEE ON S. 3170, 69TH
CONG., 1ST SESS,; HEARINGS BEFORE THE HOUSE JUDICIARY COMMITTEE ON S.
3170, 69TH CONG., 1ST SESS.; S. REP. NO. 973, 69TH CONG., 1ST SESS.;
H.R. REP. NO. 1767, 69TH CONG., 2D SESS.  SEE ALSO H.R. REP. NO. 1190,
69TH CONG., 1ST SESS. (ACCOMPANYING H.R. 12063); HEARINGS BEFORE THE
HOUSE JUDICIARY COMMITTEE ON H.R. 9498, 69TH CONG., 1ST SESS. 

FN10  SEE S. REP. NO. 973, 69TH CONG., 1ST SESS., AT 16:    "THE
PURPOSE OF THIS BILL IS TO PROVIDE FOR COMPENSATION, IN THE STEAD OF
LIABILITY, FOR A CLASS OF EMPLOYEES COMMONLY KNOWN AS "LONGSHOREMEN.' 
THESE MEN ARE MAINLY EMPLOYED IN LOADING, UNLOADING, REFITTING, AND
REPAIRING SHIPS; BUT IT SHOULD BE REMARKED THAT INJURIES OCCURRING IN
LOADING OR UNLOADING ARE NOT COVERED UNLESS THEY OCCUR ON THE SHIP OR
BETWEEN THE WHARF AND THE SHIP SO AS TO BRING THEM WITHIN THE MARITIME
JURISDICTION OF THE UNITED STATES.  THERE ARE IN THE NEIGHBORHOOD OF
300,000 MEN SO EMPLOYED IN THE ENTIRE COUNTRY. 

"THE COMMITTEE DEEMS IT UNNECESSARY TO COMMENT UPON THE MODERN CHANGE
IN THE RELATION BETWEEN EMPLOYERS AND EMPLOYEES ESTABLISHING SYSTEMS OF
COMPENSATION AS DISTINGUISHED FROM LIABILITY.  NEARLY EVERY STATE IN
THE UNION HAS A COMPENSATION LAW THROUGH WHICH EMPLOYEES ARE
COMPENSATED FOR INJURIES OCCURRING IN THE COURSE OF THEIR EMPLOYMENT
WITHOUT REGARD TO NEGLIGENCE ON THE PART OF THE EMPLOYER OR
CONTRIBUTORY NEGLIGENCE ON THE PART OF THE EMPLOYEE.  IF LONGSHOREMEN
COULD AVAIL THEMSELVES OF THE BENEFITS OF STATE COMPENSATION LAWS,
THERE WOULD BE NO OCCASION FOR THIS LEGISLATION; BUT, UNFORTUNATELY,
THEY ARE EXCLUDED FROM THESE LAWS BY REASON OF THE CHARACTER OF THEIR
EMPLOYMENT; AND THEY ARE NOT ONLY EXCLUDED BUT THE SUPREME COURT HAS
MORE THAN ONCE HELD THAT FEDERAL LEGISLATION CAN NOT, CONSTITUTIONALLY,
BE ENACTED THAT WILL APPLY STATE LAWS TO THIS OCCUPATION.  (SOUTHERN
PACIFIC CO. V. JENSEN, 244 U.S. 205; KNICKERBOCKER ICE CO. V. STEWART,
253 U.S. 149; WASHINGTON V. DAWSON & CO., 264 U.S. 219.) 

"IT THUS APPEARS THAT THERE IS NO WAY OF GIVING TO THESE HARDWORKING
MEN, ENGAGED IN A SOMEWHAT HAZARDOUS EMPLOYMENT, THE JUSTICE INVOLVED
IN THE MODERN PRINCIPLE OF COMPENSATION WITHOUT ENACTING A UNIFORM
COMPENSATION STATUTE." 

TO LIKE EFFECT IS H.R. REP. NO. 1190, 69TH CONG., 1ST SESS., AT 1,
3: 

"THIS BILL PROVIDES COMPENSATION FOR EMPLOYEES INJURED  ...  IN
CERTAIN MARITIME EMPLOYMENTS  ... .  THE PRINCIPAL WAGE EARNERS
PROVIDED FOR ARE LONGSHOREMEN  ...  .  NEXT IN IMPORTANCE ARE THE SHIP
REPAIRMEN - CARPENTERS, PAINTERS, BOILER MAKERS, ETC.  CONGRESSIONAL
ACTION IS NECESSARY IF THESE WAGE EARNERS ARE TO BE GIVEN THE BENEFITS
OF WORKMEN'S COMPENSATION OWING TO THE PROVISIONS OF THE CONSTITUTION
OF THE UNITED STATES AND THE DECISIONS OF THE SUPREME COURT THEREUNDER
...  .  THE COMMITTEE  ...  RECOMMENDS THAT THIS HUMANITARIAN
LEGISLATION BE SPEEDILY ENACTED INTO LAW SO THAT THIS CLASS OF WORKERS,
PRACTICALLY THE ONLY CLASS WITHOUT THE BENEFIT OF WORKMEN'S
COMPENSATION, MAY BE AFFORDED THIS PROTECTION, WHICH HAS COME TO BE
ALMOST UNIVERSALLY RECOGNIZED AS NECESSARY IN THE INTEREST OF SOCIAL
JUSTICE BETWEEN EMPLOYER AND EMPLOYEE." 

H.R. REP. NO. 1767, 69TH CONG., 2D SESS., AT 20, MAKES CLEAR THAT THE
HOUSE WAS DESIROUS OF LEGISLATION WHEREBY CONGRESS COULD "DISCHARGE ITS
OBLIGATION TO THE MARITIME WORKERS PLACED UNDER THEIR JURISDICTION BY
THE CONSTITUTION OF THE UNITED STATES BY PROVIDING FOR THEM A LAW
WHEREBY THEY MAY RECEIVE THE BENEFITS OF WORKMEN'S COMPENSATION AND
THUS AFFORD THEM THE SAME REMEDIES THAT HAVE BEEN PROVIDED BY
LEGISLATION FOR THOSE KILLED OR INJURED IN THE COURSE OF THEIR
EMPLOYMENT IN NEARLY EVERY STATE IN THE UNION." 

FN11  THE FOLLOWING COLLOQUY OCCURRED BETWEEN THE CHAIRMAN, SENATOR
CUMMINS, AND AN EMPLOYER SPOKESMAN WHO WAS TESTIFYING: 

"THE CHAIRMAN.  THAT TERM (EMPLOYMENT OF LOCAL CONCERN) WAS USED IN
ONE OF THE DECISIONS OF THE SUPREME COURT, PROBABLY, BUT, IN ITS
APPLICATION, JUST WHAT DOES IT MEAN? 

"MR. BROWN.  UNLESS THERE IS SOMETHING IN CONNECTION WITH ADMIRALTY
LAW WHICH QUALIFIES IT, I SHOULD SAY IT IS A VERY VAGUE THING, AND WE
CAN NOT UNDERSTAND WHAT IT MEANS.  THE PHRASE 'OF NO DIRECT RELATION TO
NAVIGATION AND COMMERCE' IS ANOTHER QUESTIONABLE PROPOSITION, WHETHER
THE COVERAGE OF THIS BILL MIGHT NOT APPLY TO A MAN ON THE DOCKS.  SOME
OF MY FRIENDS SEEM TO THINK THAT IT WOULD NOT APPLY TO THE MAN ON THE
DOCKS, THAT THE STATE LAWS NOW APPLY, AND IT WAS SAID IN THE SAME
DECISION (THE WITNESS REFERRED TO ROHDE, SUPRA, BUT THE QUOTED LANGUAGE
IS FOUND IN NORDENHOLT, SUPRA, NOTE 7, AT 276): 

"THERE IS NO PERTINENT FEDERAL STATUTE AND APPLICATION OF A LOCAL LAW
WILL NOT WORK MATERIAL PREJUDICE TO ANY CHARACTERISTIC FEATURE OF THE
MARITIME LAW. 

     *         *         *         *    * 

"THE CHAIRMAN.  WE CERTAINLY CAN FIND SOME LANGUAGE THAT WILL
DESCRIBE THESE PEOPLE THAT WE INTEND TO PROTECT, BUT I AM NOT SURE
WHETHER THIS IS THE MOST ACCURATE LANGUAGE THAT CAN BE FOUND. 

"MR. BROWN.  I THINK THAT IS TRUE.  I THINK THAT YOU COULD NOT ONLY
FIND LANGUAGE THAT WOULD PRESCRIBE THE COVERAGE ACCURATELY, BUT I THINK
THAT LANGUAGE COULD BE DEVISED THAT WOULD BE EMINENTLY SATISFACTORY TO
EVERYBODY IN AN ACT THAT WOULD INCORPORATE THE PURPOSES WHICH ARE,
PERHAPS, BEHIND THIS."  SENATE HEARINGS, AT 57. 

FN12  SECTION 3 AS REDRAFTED BY THE HOUSE COMMITTEE, H.R. REP. NO.
1767, 69TH CONG., 2D SESS., AT 2, WAS AS FOLLOWS: 

"SEC. 3.  THIS ACT SHALL APPLY TO ANY MARITIME EMPLOYMENT PERFORMED: 

"(A)  UPON THE NAVIGABLE WATERS OF THE UNITED STATES, INCLUDING ANY
DRY DOCK; OR: 

"(B)  AS MASTER OR MEMBER OF A CREW OF A BARGE, LIGHTER, TUG, DREDGE,
VESSEL, OR OTHER OCEAN, LAKE, RIVER, CANAL, HARBOR, OR FLOATING CRAFT
OWNED BY A CITIZEN OF THE UNITED STATES." 

FN13  THE HOUSE COMMITTEE COULD NOT OBTAIN A RULE FROM THE HOUSE
RULES COMMITTEE UNTIL IT AMENDED THE BILL TO EXCLUDE SEAMEN FROM
COVERAGE.  68 CONG. REC. 5410, 5412.  RATHER THAN REWRITE SEC. 3 AGAIN
THE COMMITTEE ADOPTED THE SENATE VERSION.  SEE ID., 5403-5404, 5410,
5412, EXPLAINING THAT THE EFFECT WAS TO EXCLUDE SEAMEN FROM COVERAGE. 

FN14  THE COMMITTEE REPORTS, NOTE 10, SUPRA, MAKE NO REFERENCE TO THE
"LOCAL CONCERN" DOCTRINE OR THE CASES APPLYING IT.  THEY EXPLAIN THE
PROBLEM IN TERMS OF THE LIMITATIONS ON THE AVAILABILITY OF STATE
REMEDIES IMPOSED BY THE COURT'S DECISIONS IN JENSEN, KNICKERBOCKER, AND
DAWSON. 

FN15 WE ATTACH NO SIGNIFICANCE TO OPINION NO. 7, SEPTEMBER 2, 1927,
OF THE EMPLOYEES' COMPENSATION COMMISSION (NOW THE BUREAU OF EMPLOYEES'
COMPENSATION) STATING THAT THE COMMISSION "WILL TAKE NO ACTION UNDER
THE LONGSHOREMEN'S ACT AGAINST AN EMPLOYER ENGAGED ONLY IN THE
CONSTRUCTION OF VESSELS WHO DOES NOT COMPLY WITH THE ACT, NOR AGAINST
ANY EMPLOYER ENGAGED IN THE CONSTRUCTION AND REPAIR OF VESSELS WHO
SECURES PAYMENT OF COMPENSATION TO EMPLOYEES WHILE EMPLOYED ON REPAIR
WORK ON A VESSEL IN A DRY DOCK OR ON MARINE WAYS."  THE DEPARTMENT WAS
NOT FORECLOSED IN THE INSTANT CASES FROM CHANGING AN INTERPRETATION OF
THE STATUTE WHICH WAS CLEAR ERROR.  AUTOMOBILE CLUB OF MICHIGAN V.
COMMISSIONER, 353 U.S. 180. 

FN16  SECTION 5 OF THE LONGSHOREMEN'S ACT, 33 U.S.C. SEC. 905, WHICH
MAKES LIABILITY UNDER THE ACT "EXCLUSIVE  ...  OF ALL OTHER LIABILITY
...  TO THE EMPLOYEE, HIS LEGAL REPRESENTATIVE  ...  AND ANYONE
OTHERWISE ENTITLED TO RECOVER DAMAGES  ...  AT LAW OR IN ADMIRALTY  ...
" IS NOT INVOLVED IN THIS CASE. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

IN THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 33 U.S.C.
SECS. 901-950, CONGRESS CAREFULLY PROVIDED FOR THE RECOVERY OF BENEFITS
ONLY "IF RECOVERY FOR THE DISABILITY OR DEATH THROUGH WORKMEN'S
COMPENSATION PROCEEDINGS MAY NOT VALIDLY BE PROVIDED BY STATE LAW."  33
U.S.C. SEC. 903(A).  NOW, THIRTY-FIVE YEARS LATER, THE COURT CONCLUDES
THAT CONGRESS DID NOT REALLY MEAN WHAT IT SAID.  I CANNOT JOIN IN THIS
EXERCISE IN JUDICIAL LEGERDEMAIN.  I THINK THE STATUTE STILL MEANS WHAT
IT SAYS, AND WHAT IT HAS ALWAYS BEEN THOUGHT TO MEAN - NAMELY, THAT
THERE CAN BE NO RECOVERY UNDER THE ACT IN CASES WHERE THE STATE MAY
CONSTITUTIONALLY CONFER A WORKMEN'S COMPENSATION REMEDY.  WHILE THE
RESULT REACHED TODAY MAY BE A DESIRABLE ONE, IT IS SIMPLY NOT WHAT THE
LAW PROVIDES. 

I SERIOUSLY DOUBT WHETHER STATUTORY LANGUAGE AS CLEAR AS THAT IN 33
U.S.C. SEC. 903(A) COULD EVER BE IGNORED IN THE NAME OF EFFECTUATING
THE SUPPOSED "CONGRESSIONAL DESIRE."  BE THAT AS IT MAY, THIS
PARTICULAR STATUTORY LANGUAGE DOES IN FACT REFLECT THE PURPOSE OF
CONGRESS, WHICH WAS ONLY TO PROVIDE COMPENSATION FOR THOSE WHOM THIS
COURT'S DECISIONS HAD BARRED FROM THE BENEFITS OF STATE WORKMEN'S
COMPENSATION LAWS.  AND AT THE TIME OF THE PASSAGE OF THIS FEDERAL LAW
THE COURT HAD SQUARELY HELD, AS CONGRESS WELL KNEW, THAT STATE
WORKMEN'S COMPENSATION REMEDIES WERE CONSTITUTIONALLY AVAILABLE TO
WORKERS WHO, AS IN THE PRESENT CASES, WERE ENGAGED IN NEW SHIP
CONSTRUCTION ON NAVIGABLE WATERS. 

THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT WAS THE
CULMINATION OF A SERIES OF EVENTS BEGINNING WITH THIS COURT'S DECISION
IN SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, WHICH HELD THAT THE
NEW YORK WORKMEN'S COMPENSATION ACT COULD NOT CONSTITUTIONALLY BE
APPLIED TO A STEVEDORE UNLOADING A VESSEL ON NAVIGABLE WATERS, BECAUSE
TO DO SO WOULD IMPAIR THE UNIFORMITY OF THE GENERAL MARITIME LAW. 
WITHIN FIVE MONTHS AFTER THE JENSEN DECISION CONGRESS PASSED
LEGISLATION WHICH ATTEMPTED TO GIVE INJURED MARITIME EMPLOYEES "THE
RIGHTS AND REMEDIES UNDER THE WORKMEN'S COMPENSATION LAW OF ANY
STATE."  40 STAT. 395.  THIS LEGISLATION WAS DECLARED UNCONSTITUTIONAL
AS AN INVALID ATTEMPT TO DELEGATE FEDERAL POWER TO THE STATES. 
KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149.  A SECOND STATUTE, 42
STAT. 634, SIMILAR IN APPROACH TO THE FIRST, WAS DECLARED INVALID IN
WASHINGTON V. DAWSON & CO., 264 U.S. 219. 

MEANWHILE, THE COURT WAS BACKING AWAY SOMEWHAT FROM JENSEN BY
RECOGNIZING THAT WHERE THE GENERAL EMPLOYMENT AND PARTICULAR ACTIVITIES
CONNECTED WITH AN INJURY OR DEATH WERE LOCAL IN CHARACTER, THOUGH
MARITIME IN NATURE, STATE LAW COULD PROVIDE REDRESS WITHOUT DISTURBING
THE UNIFORMITY OF THE GENERAL MARITIME LAW.  THE MARITIME BUT LOCAL
DOCTRINE, FIRST APPLIED IN CONNECTION WITH A STATE WRONGFUL DEATH
STATUTE, WESTERN FUEL CO. V. GARCIA, 257 U.S. 233, PROVIDED THE BASIS
FOR HOLDING THAT A STATE COMPENSATION ACT COULD BE APPLIED TO A WORKER
ENGAGED IN THE CONSTRUCTION OF A NEW VESSEL WHICH, WHILE UNCOMPLETED,
WAS AFLOAT ON NAVIGABLE WATERS.  GRANT SMITH-PORTER SHIP CO. V. ROHDE,
257 U.S. 469.  (FN1) 

AGAINST THIS BACKGROUND CONGRESS MADE ITS THIRD AND ULTIMATELY
SUCCESSFUL ATTEMPT TO PROVIDE COMPENSATION FOR MARITIME EMPLOYEES
DEPRIVED BY THE JENSEN RULE OF STATE COMPENSATION REMEDIES.  SEIZING
UPON A SUGGESTION MADE BY THE COURT IN WASHINGTON V. DAWSON & CO.,
SUPRA, CONGRESS TURNED ITS ATTENTION IN THE DIRECTION OF A UNIFORM
FEDERAL COMPENSATION ACT.  THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT WAS THE RESULT.  IN THE PREVIOUS TWO ATTEMPTS TO
CIRCUMVENT JENSEN CONGRESS HAD INDICATED ITS BELIEF THAT THE
COMPENSATION REMEDY COULD BEST BE SUPPLIED BY THE STATES.  IT IS
OBVIOUS THAT IN THE NEW ACT CONGRESS DID NOT DEPART FROM THIS BASIC
APPROACH, EITHER BY MAKING FEDERAL LAW APPLICABLE WHERE STATE LAW COULD
APPLY, OR BY GIVING THE INJURED EMPLOYEE A CHOICE OF REMEDIES. 
CONGRESS HAD SIMPLY BEEN INFORMED BY DECISIONS OF THIS COURT THAT A
COMPENSATION REMEDY COULD BE PROVIDED FOR CERTAIN MARITIME INJURIES
ONLY THROUGH A UNIFORM FEDERAL LAW, AND THE FEDERAL LEGISLATION WAS
ENACTED ONLY TO FILL THE GAP CREATED BY THOSE DECISIONS. 

THE LEGISLATIVE MATERIALS CONNECTED WITH THE ACT FULLY SUPPORT THIS
CONCLUSION.  IT WAS REPEATEDLY EMPHASIZED THAT THE PURPOSE OF THE ACT
WAS TO PROVIDE A COMPENSATION REMEDY FOR THOSE WHO COULD NOT OBTAIN
SUCH RELIEF UNDER STATE LAW.  "IF LONGSHOREMEN COULD AVAIL THEMSELVES
OF THE BENEFITS OF STATE COMPENSATION LAWS, THERE WOULD BE NO OCCASION
FOR THIS LEGISLATION; BUT, UNFORTUNATELY, THEY ARE EXCLUDED FROM THESE
LAWS BY REASON OF THE CHARACTER OF THEIR EMPLOYMENT; AND THEY ARE NOT
ONLY EXCLUDED BUT THE SUPREME COURT HAS MORE THAN ONCE HELD THAT
FEDERAL LEGISLATION CAN NOT, CONSTITUTIONALLY, BE ENACTED THAT WILL
APPLY STATE LAWS TO THIS OCCUPATION."  S. REP. NO. 973, 69TH CONG., 1ST
SESS., AT 16.  "THE COMMITTEE  ...  RECOMMENDS THAT THIS HUMANITARIAN
LEGISLATION BE SPEEDILY ENACTED INTO LAW SO THAT THIS CLASS OF WORKERS,
PRACTICALLY THE ONLY CLASS WITHOUT THE BENEFIT OF WORKMEN'S
COMPENSATION, MAY BE AFFORDED THIS PROTECTION  ...  ."  H.R. REP. NO.
1190, 69TH CONG., 1ST SESS., AT 3.  THE CHAIRMAN OF THE SUBCOMMITTEE
CONDUCTING HEARINGS ON THE BILL CATEGORICALLY STATED THAT "WE ARE
PROCEEDING ON THE THEORY THAT THESE PEOPLE CAN NOT BE COMPENSATED UNDER
THE NEW YORK COMPENSATION LAW OR ANY OTHER COMPENSATION LAW."  HEARINGS
BEFORE A SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE ON S. 3170,
69TH CONG., 1ST SESS., AT 84.  SIMILAR STATEMENTS WERE MADE BY THOSE
WHO SPOKE DURING THE COMMITTEE HEARINGS ON THE PROPOSED LEGISLATION. 
(FN2) SEVERAL WITNESSES POINTED OUT THAT THE STATUTE APPLIED TO BUT TWO
CATEGORIES OF WORKERS, LONGSHOREMEN AND THOSE INVOLVED IN SHIP REPAIR,
(FN3) THE CLASSES OF EMPLOYEES DENIED RELIEF UNDER STATE COMPENSATION
ACTS BY THE JENSEN CASE AND THE DECISIONS WHICH FOLLOWED IT.  (FN4) 
THE MEANING OF 33 U.S.C. SEC. 903(A) CAN HARDLY BE DEEMED A QUESTION OF
FIRST IMPRESSION.  IN THE THIRTY-FIVE YEARS SINCE ITS ENACTMENT THIS
PROVISION HAS BEEN BEFORE THE COURT MANY TIMES.  THE COURT HAS
CONSISTENTLY SAID THAT THE ACT DOES NOT APPLY TO INJURIES ON NAVIGABLE
WATERS WHERE A STATE CAN CONSTITUTIONALLY PROVIDE A COMPENSATION
REMEDY.  ALL THE COMMENTATORS HAVE AGREED.  (FN5) AND THE
ADMINISTRATORS OF THE ACT HAVE SO HELD, SPECIFICALLY WITH RESPECT TO
NEW SHIP CONSTRUCTION.  (FN6) 

IN ORDER TO AVOID THE HARSH RESULTS WHICH THE UNCERTAINTIES OF THIS
STATUTORY PROVISION COULD SOMETIMES PRODUCE, THE COURT IN DAVIS V.
DEPARTMENT OF LABOR, 317 U.S. 249, DEVELOPED THE THEORY OF THE TWILIGHT
ZONE.  THERE WE REVERSED A DECISION OF THE WASHINGTON SUPREME COURT
WHICH HAD HELD THAT A STATE COULD NOT CONSTITUTIONALLY MAKE A
COMPENSATION AWARD TO THE WIDOW OF A WORKMAN DROWNED IN A NAVIGABLE
RIVER WHILE DISMANTLING A DRAWBRIDGE.  RELYING ON THE LANGUAGE OF SEC.
903(A) THE COURT POINTED OUT THAT "CONGRESS MADE CLEAR ITS PURPOSE TO
PERMIT STATE COMPENSATION PROTECTION WHENEVER POSSIBLE  ...  ."  ID.,
AT 252-253.  THE COURT WENT ON TO NOTE THAT HARBOR WORKERS AND
LONGSHOREMEN WERE CLEARLY PROTECTED BY THE FEDERAL ACT BUT THAT
"EMPLOYEES SUCH AS DECEDENT HERE, OCCUPY THAT SHADOWY AREA WITHIN
WHICH, AT SOME UNDEFINED AND UNDEFINABLE POINT, STATE LAWS CAN VALIDLY
PROVIDE COMPENSATION."  IT WAS NOTED THAT BOTH THE FEDERAL ACT AND THE
STATE COMPENSATION STATUTE "SHOW CLEARLY THAT NEITHER WAS INTENDED TO
ENCROACH ON THE FIELD OCCUPIED BY THE OTHER."  ID., AT 255.  SINCE THIS
"JURISDICTIONAL DILEMMA" MADE IT DIFFICULT FOR AN INJURED WORKER TO
DETERMINE ON WHICH SIDE OF THE LINE HIS PARTICULAR CASE FELL, THE
RESULT IN SOME CASES HAD BEEN THAT HE OBTAINED NO COMPENSATION AT ALL. 
IN THIS "TWILIGHT ZONE" WHERE THE FACTS OF A GIVEN CASE MIGHT PLACE AN
INJURED WORKER ON EITHER SIDE OF THE LINE, THE COURT HELD THAT IT WOULD
GIVE GREAT WEIGHT TO THE ADMINISTRATIVE FINDINGS IN CASES BROUGHT UNDER
THE FEDERAL ACT, AND TO THE PRESUMPTION OF CONSTITUTIONALITY IN CASES
ARISING UNDER STATE STATUTES.  BECAUSE OF THIS PRESUMPTION OF
CONSTITUTIONALITY THE CLAIMANT IN DAVIS WAS ALLOWED HER STATE REMEDY. 
(FN7) 

WHATEVER ELSE MAY BE SAID OF THE DAVIS DECISION, IT THUS CLEARLY
RESTED ON A CONSTRUCTION OF THE STATUTE PRECISELY OPPOSITE TO THAT
ADOPTED BY THE COURT TODAY.  INDEED, IF TODAY'S DECISION IS CORRECT,
THEN THERE WAS NO REASON FOR THE "TWILIGHT ZONE" DOCTRINE WORKED OUT
WITH SUCH TRAVAIL IN DAVIS.  FOR THE COURT NOW HOLDS THAT THE PROBLEM
WHICH LED TO THE DAVIS DECISION NEVER REALLY EXISTED.  YET AS RECENTLY
AS 1959 THE COURT BEGAN A PER CURIAM OPINION WITH THIS TOPIC SENTENCE:
"BY ITS TERMS, THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT
DOES NOT APPLY 'IF RECOVERY FOR THE DISABILITY OR DEATH THROUGH
WORKMEN'S COMPENSATION PROCEEDINGS MAY  ...  VALIDLY BE PROVIDED BY
STATE LAW.'"  HAHN V. ROSS ISLAND SAND & GRAVEL CO., 358 U.S. 272. 
TODAY THE COURT SIMPLY REMOVES THESE "TERMS" FROM THE ACT.  (FN8) 

IN MY VIEW THE DECISION OF THE COURT OF APPEALS IN THESE CASES WAS
CORRECT.  FOR ALMOST FORTY YEARS IT HAS BEEN UNEQUIVOCALLY RECOGNIZED
THAT FOR THOSE EMPLOYED ON NEW SHIP CONSTRUCTION RECOVERY FOR
DISABILITY OR DEATH THROUGH WORKMEN'S COMPENSATION MAY VALIDLY BE
PROVIDED BY STATE LAW.  GRANT SMITH-PORTER SHIP CO. V. ROHDE, SUPRA.
IN ONE OF THE CASES BEFORE US THE CLAIMANT HAS ACTUALLY BEEN PAID
BENEFITS UNDER THE LOUISIANA COMPENSATION ACT.  IN THE OTHER A CLAIM
UNDER THE TEXAS ACT IS PENDING AND WOULD CLEARLY BE ALLOWED.  SEE
TRAVELERS INS. CO. V. GONZALEZ, 351 S.W.2D 374.  THESE CASES,
THEREFORE, WERE NOT BY ANY STRETCH OF THE IMAGINATION WITHIN THE
TWILIGHT ZONE.  THE FEDERAL ACT IS THUS BY ITS TERMS INAPPLICABLE.  I
WOULD AFFIRM. 

FN1  DURING THIS SAME PERIOD THE COURT CONSISTENTLY HELD THAT THE
PRINCIPLES OF JENSEN PROHIBITED THE APPLICATION OF STATE COMPENSATION
LAWS TO WORKERS ENGAGED IN THE REPAIR OF EXISTING VESSELS.  ROBINS DRY
DOCK & REPAIR CO. V. DAHL, 266 U.S. 449; GONSALVES V. MORSE DRY DOCK &
REPAIR CO., 266 U.S. 171; GREAT LAKES DREDGE & DOCK CO. V. KIEREJEWSKI,
261 U.S. 479. 

FN2  HEARINGS BEFORE THE HOUSE JUDICIARY COMMITTEE ON H.R. 9498, 69TH
CONG., 1ST SESS., AT 39, 118; HEARINGS BEFORE A SUBCOMMITTEE OF THE
SENATE JUDICIARY COMMITTEE ON S. 3170, 69TH CONG., 1ST SESS., AT 22, 25
27, 31, 38, 85. 

FN3  HEARINGS BEFORE THE HOUSE JUDICIARY COMMITTEE ON S. 3170, 69TH
CONG., 1ST SESS., AT 141; HEARINGS BEFORE THE HOUSE JUDICIARY COMMITTEE
ON H.R. 9498, 69TH CONG., 1ST SESS., AT 44, 119; HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE ON S. 3170, 69TH CONG.,
1ST SESS., AT 80. 

FN4  THE COURT PLACES HEAVY RELIANCE ON THE DELETION OF THE SO-CALLED
"LOCAL CONCERN" LANGUAGE FROM THE ORIGINAL BILL, POINTING OUT THAT THIS
LANGUAGE HAD BEEN OBJECTED TO AS VAGUE AND UNCERTAIN.  BUT IT IS
APPARENT THAT THE OBJECTIONS WENT TO THE POSSIBILITY THAT THE LANGUAGE
"EXCEPT EMPLOYMENT OF LOCAL CONCERN AND OF NO DIRECT RELATION TO
NAVIGATION AND COMMERCE" MIGHT NOT ACCURATELY DEFINE THE LINE BEYOND
WHICH STATE LAW COULD BE APPLIED - A DIFFICULTY WHICH WAS EASILY
REMOVED BY MAKING THE STATUTE INAPPLICABLE WHERE A REMEDY COULD
"VALIDLY BE PROVIDED BY STATE LAW." 

FN5  SEE GILMORE AND BLACK, ADMIRALTY, 346; ROBINSON, ADMIRALTY, 110;
RODES, WORKMEN'S COMPENSATION FOR MARITIME EMPLOYEES:  OBSCURITY IN THE
TWILIGHT ZONE, 68 HARV. L. REV. 637, 638-639; MORRISON, WORKMEN'S
COMPENSATION AND THE MARITIME LAW, 38 YALE L.J. 472, 500; COMMENT, 67
YALE L.J. 1205, 1210-1211. 

FN6  SEE OPINION NO. 7, SEPTEMBER 2, 1927, OF THE EMPLOYEES'
COMPENSATION COMMISSION, DISCUSSED IN N. 15 OF THE COURT'S OPINION,
ANTE, P. 127.  THIS RULING WAS FOLLOWED UNTIL 1959, A SPAN OF THIRTY
TWO YEARS. 

FN7  TO ACHIEVE THE RESULT REACHED IN DAVIS AFTER TODAY'S DECISION
WOULD REQUIRE THE COURT TO IGNORE STILL ANOTHER PROVISION OF THE
FEDERAL ACT - SEC. 905 - WHICH MAKES FEDERAL COMPENSATION THE EXCLUSIVE
REMEDY WHEN THE FEDERAL ACT IS CLEARLY APPLICABLE. 

FN8  THE COURT'S OPINION PLACES HEAVY RELIANCE ON PARKER V. MOTOR
BOAT SALES, 314 U.S. 244.  I CANNOT UNDERSTAND WHY.  FOR IN PARKER THE
COURT RECOGNIZED THAT THE PROVISO IN SEC. 903(A) WAS "A SUBTRACTION
FROM THE SCOPE OF THE ACT."  ID., AT 249.  THE COURT TODAY HOLDS TO THE
CONTRARY.  MOREOVER, ANY POSSIBLE DOUBT AS TO THE BASIS OF THE PARKER
DECISION WAS RESOLVED IN DAVIS, WHERE THE COURT EXPLAINED PARKER IN
TERMS OF THE TWILIGHT-ZONE RULE.  317 U.S., AT 257. 
..END :


















LANZA V. NEW YORK 370 U.S. 139 


NO. 236.  ARGUED APRIL 2, 1962 - DECIDED JUNE 4, 1962 - 9 N.Y.2D 895,
175 N.E.2D 833, AFFIRMED. 


PETITIONER WAS CONVICTED IN A STATE COURT OF VIOLATING A STATE STATUTE
BY WILLFULLY REFUSING TO ANSWER PERTINENT QUESTIONS OF A DULY
CONSTITUTED LEGISLATIVE COMMITTEE CONDUCTING AN AUTHORIZED LEGISLATIVE
INVESTIGATION, AFTER HE HAD BEEN GIVEN IMMUNITY FROM PROSECUTION.  IN
THIS COURT, HE CONTENDED THAT HIS CONVICTION VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE A CONVERSATION WHICH HE HAD
WITH HIS BROTHER IN A PUBLIC JAIL, WHERE THE LATTER WAS CONFINED, WAS
INTERCEPTED WITHOUT THEIR KNOWLEDGE BY STATE OFFICIALS THROUGH AN
ELECTRONIC LISTENING DEVICE AND A TRANSCRIPT OF THE CONVERSATION WAS
USED BY THE LEGISLATIVE COMMITTEE IN INTERROGATING PETITIONER.  THE
STATE'S HIGHEST COURT CERTIFIED THAT IT HAD PASSED UPON THIS CLAIM AND
HELD THAT PETITIONER'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED. 
HOWEVER, THE RECORD SHOWED THAT AT LEAST TWO OF THE QUESTIONS WHICH
PETITIONER WAS CONVICTED OF REFUSING TO ANSWER WERE NOT RELATED IN ANY
WAY TO THE INTERCEPTED CONVERSATION, AND REFUSAL TO ANSWER EITHER OF
THESE QUESTIONS WAS SUFFICIENT TO SUPPORT THE JUDGMENT.  HELD: THE
CONSTITUTIONAL CLAIM ASSERTED BY PETITIONER IS NOT TENDERED BY THE
RECORD IN THIS CASE, AND THE JUDGMENT IS AFFIRMED.  PP. 139-147. 

LANZA V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON FEBRUARY 13, 1957, THE PETITIONER PAID A VISIT TO HIS BROTHER, WHO
WAS THEN CONFINED IN A NEW YORK JAIL.  THE TWO CONVERSED IN A ROOM AT
THE JAIL SET ASIDE FOR SUCH VISITS.  SIX DAYS LATER THE PETITIONER'S
BROTHER WAS RELEASED FROM CUSTODY BY ORDER OF ONE MEMBER OF THE STATE
PAROLE COMMISSION, UNDER RATHER UNUSUAL CIRCUMSTANCES.  (FN1)  THIS
PROMPTED A COMMITTEE OF THE NEW YORK LEGISLATURE TO HOLD AN
INVESTIGATION OF POSSIBLE CORRUPTION IN THE STATE PAROLE SYSTEM. 
(FN2) 

DURING THE COURSE OF THE COMMITTEE'S INVESTIGATION, THE PETITIONER
WAS CALLED TO TESTIFY.  HE APPEARED, ACCOMPANIED BY COUNSEL.  AFTER
GRANTING THE PETITIONER IMMUNITY FROM PROSECUTION, AS PERMITTED BY
STATE LAW, (FN3) THE COMMITTEE DIRECTED HIM TO ANSWER SEVERAL
QUESTIONS.  FOR REFUSING TO ANSWER THESE QUESTIONS THE PETITIONER WAS
INDICTED, TRIED AND CONVICTED UNDER A PROVISION OF THE CRIMINAL LAW OF
NEW YORK.  (FN4)  HIS CONVICTION WAS AFFIRMED ON REVIEW BY THE NEW YORK
COURTS.  (FN5)  WE GRANTED CERTIORARI, 368 U.S. 918, TO CONSIDER THE
PETITIONER'S CLAIM THAT HE COULD NOT CONSTITUTIONALLY BE PUNISHED FOR
REFUSING TO ANSWER THE QUESTIONS PUT TO HIM BY THE STATE LEGISLATIVE
COMMITTEE, BECAUSE THE CONVERSATION HE HAD HAD WITH HIS BROTHER IN JAIL
HAD BEEN ELECTRONICALLY INTERCEPTED AND RECORDED BY OFFICIALS OF THE
STATE, AND A TRANSCRIPT OF THAT CONVERSATION HAD FURNISHED THE BASIS OF
THE COMMITTEE'S QUESTIONS.  FOR THE REASONS WHICH FOLLOW, WE HOLD THAT
THIS CONSTITUTIONAL CLAIM IS NOT VALID, AND WE ACCORDINGLY AFFIRM THE
JUDGMENT BEFORE US. 

THE RECORD DOES NOT MAKE CLEAR THE PRECISE CIRCUMSTANCES UNDER WHICH
THE CONVERSATION IN THE JAIL BETWEEN THE PETITIONER AND HIS BROTHER WAS
OVERHEARD AND TRANSCRIBED.  THE STATE CONCEDES, HOWEVER, THAT AN
ELECTRONIC DEVICE WAS INSTALLED IN THE ROOM AT THE WESTCHESTER COUNTY
JAIL WHERE THE TWO CONVERSED ON FEBRUARY 13, 1957, THAT WITHOUT THEIR
KNOWLEDGE THEIR CONVERSATION WAS THEREBY OVERHEARD AND TRANSCRIBED BY
JAIL OFFICIALS, AND THAT A TRANSCRIPT OF THE CONVERSATION WAS IN THE
HANDS OF THE LEGISLATIVE COMMITTEE WHEN THE PETITIONER WAS SUMMONED TO
TESTIFY. 

THE PETITIONER HAS NOT QUESTIONED THE POWER OF THE STATE LEGISLATIVE
COMMITTEE TO CONDUCT AN INVESTIGATION INTO WHETHER THE STATE PAROLE
SYSTEM WAS BEING ADMINISTERED HONESTLY AND EVENHANDEDLY, NOR HAS HE
QUESTIONED THE GOOD FAITH OR PROPRIETY OF THE PARTICULAR INVESTIGATION
WHICH GAVE RISE TO THE PRESENT CASE.  HIS ARGUMENT IS SIMPLY THAT THE
INTERCEPTION OF THE JAIL CONVERSATION WAS A VIOLATION OF THOSE
PRINCIPLES OF THE FOURTH AMENDMENT WHICH HAVE FOUND RECOGNITION IN THE
DUE PROCESS CLAUSE OF THE FOURTEENTH, THAT IT WAS ACCORDINGLY
IMPERMISSIBLE FOR THE STATE LEGISLATIVE COMMITTEE TO MAKE USE OF THE
TRANSCRIPT OF THAT CONVERSATION IN INTERROGATING HIM, AND THAT NEW YORK
THEREFORE DENIED HIM DUE PROCESS OF LAW BY CONVICTING HIM FOR REFUSING
TO ANSWER THE COMMITTEE'S QUESTIONS.  (FN6) 

THE FOURTH AMENDMENT SPECIFICALLY INSURES THE "RIGHT OF THE PEOPLE TO
BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST
UNREASONABLE SEARCHES AND SEIZURES," BY FEDERAL OFFICERS.  WE MAY TAKE
IT AS SETTLED THAT THE FOURTEENTH AMENDMENT GIVES TO THE PEOPLE LIKE
PROTECTION AGAINST THE CONDUCT OF THE OFFICIALS OF ANY STATE.  MAPP V.
OHIO, 367 U.S. 643; ELKINS V. UNITED STATES, 364 U.S. 206; WOLF V.
COLORADO, 338 U.S. 25. 

THE PETITIONER'S ARGUMENT THUS NECESSARILY BEGINS WITH TWO
ASSUMPTIONS:  THAT THE VISITORS' ROOM OF A PUBLIC JAIL IS A
CONSTITUTIONALLY PROTECTED AREA, AND THAT SURREPTITIOUS ELECTRONIC
EAVESDROPPING UNDER CERTAIN CIRCUMSTANCES MAY AMOUNT TO AN UNREASONABLE
SEARCH OR SEIZURE.  AS TO THE SECOND THERE CAN BE NO DOUBT.  THE COURT
THROUGH THE YEARS HAS NOT TAKEN A LITERAL OR MECHANICAL APPROACH TO THE
QUESTION OF WHAT MAY CONSTITUTE A SEARCH AND SEIZURE.  (FN7)  AND AS
RECENTLY AS LAST TERM WE SPECIFICALLY HELD THAT ELECTRONIC
EAVESDROPPING BY FEDERAL OFFICERS, ACCOMPLISHED BY PHYSICAL INTRUSION
INTO THE WALL OF A HOUSE, VIOLATED THE FOURTH AMENDMENT RIGHTS OF THE
OCCUPANTS.  SILVERMAN V. UNITED STATES, 365 U.S. 505. 

BUT TO SAY THAT A PUBLIC JAIL IS THE EQUIVALENT OF A MAN'S "HOUSE" OR
THAT IT IS A PLACE WHERE HE CAN CLAIM CONSTITUTIONAL IMMUNITY FROM
SEARCH OR SEIZURE OF HIS PERSON, HIS PAPERS, OR HIS EFFECTS, IS AT BEST
A NOVEL ARGUMENT.  TO BE SURE, THE COURT HAS BEEN FAR FROM NIGGARDLY IN
CONSTRUING THE PHYSICAL SCOPE OF FOURTH AMENDMENT PROTECTION.  A
BUSINESS OFFICE IS A PROTECTED AREA, (FN8) AND SO MAY BE A STORE. 
(FN9)  A HOTEL ROOM, IN THE EYES OF THE FOURTH AMENDMENT, MAY BECOME A
PERSON'S "HOUSE," (FN10) AND SO, OF COURSE, MAY AN APARTMENT.  (FN11)
AN AUTOMOBILE MAY NOT BE UNREASONABLY SEARCHED.  (FN12)  NEITHER MAY AN
OCCUPIED TAXICAB.  (FN13)  YET, WITHOUT ATTEMPTING EITHER TO DEFINE OR
TO PREDICT THE ULTIMATE SCOPE OF FOURTH AMENDMENT PROTECTION, IT IS
OBVIOUS THAT A JAIL SHARES NONE OF THE ATTRIBUTES OF PRIVACY OF A HOME,
AN AUTOMOBILE, AN OFFICE, OR A HOTEL ROOM.  IN PRISON, OFFICIAL
SURVEILLANCE HAS TRADITIONALLY BEEN THE ORDER OF THE DAY.  (FN14)
THOUGH IT MAY BE ASSUMED THAT EVEN IN A JAIL, OR PERHAPS ESPECIALLY
THERE, THE RELATIONSHIPS WHICH THE LAW HAS ENDOWED WITH PARTICULARIZED
CONFIDENTIALITY MUST CONTINUE TO RECEIVE UNCEASING PROTECTION, (FN15)
THERE IS NO CLAIMED VIOLATION OF ANY SUCH SPECIAL RELATIONSHIP HERE. 

BUT EVEN IF WE ACCEPT THE PREMISE THAT THE ROOM AT THE JAIL WHERE THE
PETITIONER AND HIS BROTHER CONVERSED WAS AN AREA IMMUNIZED BY THE
CONSTITUTION FROM UNREASONABLE SEARCH AND SEIZURE, AND EVEN THOUGH WE
PUT TO ONE SIDE QUESTIONS AS TO THE PETITIONER'S STANDING TO COMPLAIN,
(FN16) THE PETITIONER'S ARGUMENT WOULD STILL CARRY FAR BEYOND ANY
DECISION WHICH THIS COURT HAS YET RENDERED.  THE CASE BEFORE US BEARS
NO RESEMBLANCE TO SUCH CASES AS LEYRA V. DENNO, 347 U.S. 556, WHERE A
STATE ATTEMPTED TO USE AS EVIDENCE IN A CRIMINAL TRIAL A CONFESSION
WHICH HAD BEEN ELICITED BY TRICKERY FROM THE DEFENDANT WHILE HE WAS IN
JAIL.  SEE ALSO SPANO V. NEW YORK, 360 U.S. 315.  WE DO NOT HAVE HERE
THE INTRODUCTION INTO A STATE CRIMINAL TRIAL OF EVIDENCE WHICH IS
CLAIMED TO HAVE BEEN UNCONSTITUTIONALLY SEIZED, AS IN MAPP V. OHIO, 367
U.S. 643.  SEE ROCHIN V. CALIFORNIA, 342 U.S. 165.  NOR IS THIS A CASE
WHERE IT IS CLAIMED THAT THE EVIDENCE ACTUALLY OFFERED AT A TRIAL WAS
PROCURED THROUGH KNOWLEDGE GAINED FROM WHAT HAD BEEN UNLAWFULLY
OBTAINED - THE "FRUIT OF THE POISONOUS TREE."  CF. NARDONE V. UNITED
STATES, 308 U.S. 338. 

HERE NO SUCH EVIDENCE WAS EVER INTRODUCED IN A PROSECUTION AGAINST
THE PETITIONER.  RATHER, THE PETITIONER WAS CONVICTED FOR WILLFULLY
REFUSING TO ANSWER THE PERTINENT QUESTIONS OF A DULY CONSTITUTED
LEGISLATIVE COMMITTEE IN THE CONDUCT OF AN AUTHORIZED LEGISLATIVE
INVESTIGATION, AFTER HAVING BEEN GIVEN IMMUNITY FROM PROSECUTION.  TO
HOLD THAT THE PETITIONER COULD NOT CONSTITUTIONALLY BE CONVICTED FOR
REFUSING TO ANSWER SUCH QUESTIONS SIMPLY BECAUSE THEY RELATED TO A
CONVERSATION WHICH HAD BEEN UNLAWFULLY OVERHEARD BY OTHER STATE
OFFICIALS WOULD THUS BE A COMPLETELY UNPRECEDENTED STEP. 

THE ULTIMATE DISPOSITION OF THIS CASE, HOWEVER, DOES NOT DEMAND
CONSIDERATION OF WHETHER SUCH A STEP MIGHT EVER BE CONSTITUTIONALLY
REQUIRED.  FOR EVEN IF ALL THE OTHER DOUBTFUL ISSUES SHOULD BE RESOLVED
IN THE PETITIONER'S FAVOR, THE RECORD CONCLUSIVELY SHOWS THAT AT LEAST
TWO OF THE QUESTIONS WHICH THE COMMITTEE ASKED HIM WERE NOT RELATED IN
ANY WAY TO THE INTERCEPTED CONVERSATION.  THE PETITIONER WAS ASKED TO
WHOM HE HAD TALKED IN FEBRUARY, 1957, ABOUT RELEASING HIS BROTHER ON
PAROLE.   (FN17)  HE WAS ASKED TO DESCRIBE THE EFFORTS HE HAD MADE TO
ASSIST IN OBTAINING HIS BROTHER'S RELEASE.  (FN18)  NOT ONLY IS IT
APPARENT ON THEIR FACE THAT THESE QUESTIONS WERE NOT DEPENDENT UPON THE
CONVERSATION OVERHEARD AT THE JAIL, BUT COMMITTEE COUNSEL UNEQUIVOCALLY
SO TESTIFIED AT THE PETITIONER'S TRIAL.  (FN19)  COSTELLO V. UNITED
STATES, 365 U.S. 265, 279-280.  REFUSAL TO ANSWER EITHER OF THESE
QUESTIONS FULLY SUPPORTS THE JUDGMENT AS MODIFIED BY THE NEW YORK
COURTS.  (FN20) WHITFIELD V. OHIO, 297 U.S. 431, 438. 

MOREOVER, THE RECORD CONTAINS NO BASIS FOR SUPPOSING THAT THE
COMMITTEE WOULD NOT HAVE CALLED THE PETITIONER TO TESTIFY, HAD IT NOT
BEEN IN POSSESSION OF A TRANSCRIPT OF THE RECORDED JAIL CONVERSATION -
ASSUMING, ARGUENDO, THAT SUCH AN ATTENUATED CONNECTION WOULD HELP THE
PETITIONER'S CASE.  SEE COSTELLO V. UNITED STATES, SUPRA.  INDEED, IT
IS REASONABLE TO INFER THAT THE PETITIONER WOULD HAVE BEEN INTERROGATED
EVEN IF THE TRANSCRIPT OF THE CONVERSATION HAD NOT EXISTED.  THE
COMMITTEE KNEW OF THE SUSPICIOUS CIRCUMSTANCES SURROUNDING THE RELEASE
OF THE PETITIONER'S BROTHER.  (FN21)  THE COMMITTEE KNEW THAT THE
PETITIONER HAD BEEN ONE OF THE THREE VISITORS THE BROTHER HAD HAD
DURING HIS STAY IN JAIL.  (FN22)  AND THE RECORD SHOWS THAT THE
COMMITTEE HAD OTHER INDEPENDENT INFORMATION WHICH COULD HAVE OCCASIONED
THE PETITIONER'S INTERROGATION.  IN SHORT, WE CONCLUDE THAT THE
ULTIMATE CONSTITUTIONAL CLAIM ASSERTED IN THIS CASE, WHATEVER ITS
MERITS, IS SIMPLY NOT TENDERED BY THIS RECORD.  AFFIRMED. 

FN1  FOUR PAROLE OFFICERS HAD CONCURRED IN A REPORT FINDING THAT THE
PETITIONER'S BROTHER WAS "NOT A FIT SUBJECT FOR RESTORATION TO
PAROLE."  THIS REPORT HAD BEEN ENDORSED BY THREE SUPERIORS IN THE
DIVISION OF PAROLE.  SHORTLY AFTER RECEIVING THESE RECOMMENDATIONS A
MEMBER OF THE COMMISSION ORDERED THE PETITIONER'S BROTHER RELEASED. 

FN2 THE COMMITTEE WAS THE JOINT LEGISLATIVE COMMITTEE ON GOVERNMENT
OPERATIONS, CREATED BY THE NEW YORK LEGISLATURE IN 1955.  THIS
COMMITTEE WAS ENDOWED WITH "FULL POWER AND AUTHORITY TO INVESTIGATE,
INQUIRE INTO AND EXAMINE THE MANAGEMENT AND AFFAIRS OF ANY DEPARTMENT,
BOARD, BUREAU, COMMISSION  ...  OF THE STATE, AND ALL QUESTIONS IN
RELATION THERETO  ...  ."  THE COMMITTEE WAS SPECIFICALLY AUTHORIZED TO
INVESTIGATE "THE ADMINISTRATION OF STATE AND LOCAL LAWS AND THE
DETECTION AND PREVENTION OF UNSOUND, IMPROPER OR CORRUPT PRACTICES IN
CONNECTION THEREWITH." 

FN3  NEW YORK PENAL LAW SECS. 381, 584, 2447. 

FN4  NEW YORK PENAL LAW SEC. 1330:  "A PERSON WHO BEING PRESENT
BEFORE EITHER HOUSE OF THE LEGISLATURE OR ANY COMMITTEE THEREOF
AUTHORIZED TO SUMMON WITNESSES, WILLFULLY REFUSES TO BE SWORN OR
AFFIRMED, OR TO ANSWER ANY MATERIAL AND PROPER QUESTION, OR TO PRODUCE
UPON REASONABLE NOTICE ANY MATERIAL AND PROPER BOOKS, PAPERS, OR
DOCUMENTS IN HIS POSSESSION OR UNDER HIS CONTROL, IS GUILTY OF A
MISDEMEANOR." 

FN5  THE APPELLATE DIVISION MODIFIED THE JUDGMENT BY DIRECTING THAT
THE TERMS IMPOSED ON SEVERAL COUNTS OF THE INDICTMENT BE SERVED
CONCURRENTLY.  10 APP. DIV. 2D 315, 199 N.Y.S.2D 598.  THE NEW YORK
COURT OF APPEALS MODIFIED THE JUDGMENT FURTHER, HOLDING THAT THE
PETITIONER HAD COMMITTED BUT A SINGLE CRIME IN REFUSING TO ANSWER THE
VARIOUS QUESTIONS PUT TO HIM BY THE COMMITTEE.  9 N.Y.2D 895, 216
N.Y.S.2D 706, 175 N.E.2D 833. 

FN6  THE NEW YORK COURT OF APPEALS MADE CLEAR THAT IT HAD PASSED UPON
THIS FEDERAL CONSTITUTIONAL CLAIM, AND THAT ITS JUDGMENT WAS NOT BASED
UPON AN INDEPENDENT STATE GROUND.  ITS AMENDED REMITTITUR WAS AS
FOLLOWS: 

"UPON THE APPEAL HEREIN THERE WAS PRESENTED AND NECESSARILY PASSED
UPON A QUESTION UNDER THE CONSTITUTION OF THE UNITED STATES, VIZ.:
DEFENDANT ARGUED THAT THE IMPOSITION OF PENAL SANCTIONS FOR HIS REFUSAL
TO ANSWER CERTAIN QUESTIONS DEPRIVED HIM OF LIBERTY WITHOUT DUE PROCESS
OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  THE COURT OF APPEALS
HELD THAT DEFENDANT'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED." 

FN7  SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385; ZAP V.
UNITED STATES, 328 U.S. 624; CF. IRVINE V. CALIFORNIA, 347 U.S. 128,
132; SEE ALSO NUESLEIN V. DISTRICT OF COLUMBIA, 73 APP. D.C. 85, 115
F.2D 690; MCGINNIS V. UNITED STATES, 227 F.2D 598. 

FN8  SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385; GOULED
V. UNITED STATES, 255 U.S. 298. 

FN9  AMOS V. UNITED STATES, 255 U.S. 313; DAVIS V. UNITED STATES, 328
U.S. 582. 

FN10  LUSTIG V. UNITED STATES, 338 U.S. 74; UNITED STATES V. JEFFERS,
342 U.S. 48. 

FN11  JONES V. UNITED STATES, 362 U.S. 257. 

FN12  GAMBINO V. UNITED STATES, 275 U.S. 310; CARROLL V. UNITED
STATES, 267 U.S. 132; BRINEGAR V. UNITED STATES, 338 U.S. 160; HENRY V.
UNITED STATES, 361 U.S. 98. 

FN13  RIOS V. UNITED STATES, 364 U.S. 253. 

FN14  N.Y. CORRECTION LAW SEC. 500-C PROVIDES, IN PART:  "CONVICTS
UNDER SENTENCE SHALL NOT BE ALLOWED TO CONVERSE WITH ANY OTHER PERSON,
EXCEPT IN THE PRESENCE OF A KEEPER." 

THE N.Y. STATE COMMISSION OF CORRECTION, REGULATIONS FOR MANAGEMENT
OF COUNTY JAILS (REVISED 1953 ED.), PROVIDE, IN PART: 

"ALL PARTS OF THE JAIL SHOULD BE FREQUENTLY SEARCHED FOR CONTRABAND. 

     *         *         *         *         * 

"A THOROUGH SEARCH SHOULD BE MADE OF ALL PACKAGES TO PREVENT
FORBIDDEN ARTICLES BEING SMUGGLED INTO THE JAIL.  THE NUMBER OF
ARTICLES PERMITTED TO BE TAKEN INTO THE JAIL SHOULD BE KEPT TO A
MINIMUM.  SAWS HAVE BEEN SECRETED IN BANANAS, IN THE SOLES OF SHOES,
UNDER THE PEAKS OF CAPS, AND DRUGS MAY BE SECRETED IN CAP VISORS, UNDER
POSTAGE STAMPS ON LETTERS, IN CIGARS AND VARIOUS OTHER WAYS.  CONSTANT
VIGILANCE IS NECESSARY IF YOUR JAIL IS TO BE KEPT SAFE.           *
*         *         *         * 

"CELLS SHOULD BE SYSTEMATICALLY SEARCHED FOR MATERIALS WHICH WOULD
SERVE AS A WEAPON OR MEDIUM OF SELF-DESTRUCTION OR ESCAPE.  RAZOR
BLADES ARE SMALL AND EASILY CONCEALED. 

     *         *       *         *         * 

"THE LAW REQUIRES THAT VISITORS BE CAREFULLY SUPERVISED TO PREVENT
PASSING IN OF WEAPONS, TOOLS, DRUGS, LIQUOR AND OTHER CONTRABAND. 

     *         *        *         *         * 

"IN JAILS WHERE A VISITORS' BOOTH IS PROVIDED, THE SAFE-KEEPING OF
PRISONERS, ESPECIALLY THOSE HELD FOR SERIOUS CRIMES, WILL BE BEST
INSURED IF THE BOOTHS ARE USED FOR VISITS.  WHERE THERE ARE NO BOOTHS,
AND WHERE PRISONERS ARE PERMITTED TO RECEIVE VISITORS IN THE CORRIDORS
OR JAILER'S OFFICE, VISITS SHOULD BE CLOSELY SUPERVISED.  EXPERIENCE
HAS SHOWN THAT LAXITY IN SUPERVISING VISITORS AND SEARCHING PACKAGES
HAS RESULTED IN ESCAPES, ASSAULTS ON OFFICERS AND SERIOUS BREACHES OF
DISCIPLINE." 

FN15  CF. LANZA V. N.Y.S. JOINT LEGIS.  COMM., 3 N.Y.2D 92, 164
N.Y.S.2D 9, 143 N.E.2D 772, AFFIRMING 3 APP. DIV. 2D 531, 162 N.Y.S.2D
467; MATTER OF REUTER, 4 APP. DIV. 2D 252, 164 N.Y.S.2D 534; SEE COPLON
V. UNITED STATES, 89 U.S. APP. D.C. 103, 191 F.2D 749. 

FN16  SEE JONES V. UNITED STATES, 362 U.S. 257. 

FN17  "MR. LANZA, PLEASE TELL THE COMMITTEE THE NAME OF ANYBODY WITH
WHOM YOU SPOKE DURING THE MONTH OF FEBRUARY 1957 ABOUT THE RESTORATION
TO PAROLE OF YOUR BROTHER JOSEPH LANZA." 

FN18  "ON FEBRUARY 5, 1957, YOUR BROTHER JOSEPH LANZA WAS ARRESTED
AND RETURNED TO PRISON CHARGED WITH A VIOLATION OF PAROLE.  TELL THE
COMMITTEE, PLEASE, ANY AND ALL EFFORTS EXTENDED BY YOU TO ASSIST IN
OBTAINING THE RELEASE OF YOUR BROTHER JOSEPH LANZA ON PAROLE OR HIS
RESTORATION TO PAROLE." 

FN19  "Q.  YOU SAY THAT YOU DID NOT GATHER ANY MATERIAL FROM THE
TAPES UPON WHICH TO PREDICATE THAT QUESTION, MR. BAUMAN?  A. I HAVE
SAID AND I SAY, MR. DIRENZO, THAT THAT QUESTION AS WELL AS THE PREVIOUS
ONE WAS NOT BASED UPON ANY MATERIAL IN THE TAPES. 

"Q.  YOU ARE SURE ABOUT THAT?  A. YES." 

FN20  SEE NOTE 5. 

FN21  SEE NOTE 1. 

FN22  THE OTHERS WERE THE BROTHER'S WIFE AND HIS LAWYER. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

I DO NOT UNDERSTAND ANYTHING IN THE COURT'S OPINION TO SUGGEST EITHER
THAT THE FOURTEENTH AMENDMENT "INCORPORATES" THE PROVISIONS OF THE
FOURTH, OR THAT THE "LIBERTY" ASSURED BY THE FOURTEENTH AMENDMENT IS,
WITH RESPECT TO "PRIVACY," NECESSARILY COEXTENSIVE WITH THE PROTECTIONS
AFFORDED BY THE FOURTH.  ON THAT PREMISE, I JOIN THE COURT'S OPINION. 

MEMORANDUM OPINION OF MR. CHIEF JUSTICE WARREN. 

I AGREE WITH MR. JUSTICE BRENNAN THAT THE DECISION OF THE NEW YORK
COURTS COMES TO US RESTING FIRMLY UPON AN INDEPENDENT STATE GROUND AND
I THEREFORE JOIN HIS MEMORANDUM OPINION.  HOWEVER, BECAUSE THE OPINION
OF THE COURT DEPARTS FROM OUR PRACTICE OF REFUSING TO REACH
CONSTITUTIONAL QUESTIONS NOT NECESSARY FOR DECISION, I DEEM IT
APPROPRIATE TO ADD A FEW WORDS. 

UNQUESTIONABLY, ALL THAT THE COURT'S OPINION DECIDES IS THAT SINCE
TWO OF THE QUESTIONS ASKED PETITIONER BY THE COMMITTEE WERE NOT IN ANY
WAY RELATED TO THE INTERCEPTED CONVERSATION, THE REFUSAL TO ANSWER
THOSE QUESTIONS ALONE "FULLY SUPPORTS THE JUDGMENT AS MODIFIED BY THE
NEW YORK COURTS."  ANTE, P. 146.  DESPITE THE FACT THAT THIS HOLDING
DEPRIVES THE COURT OF JURISDICTION TO INTIMATE VIEWS ON THE OTHER, MORE
SERIOUS PROBLEMS OF CONSTITUTIONAL DIMENSION PRESENTED BY THE RECORD,
HERB V. PITCAIRN, 324 U.S. 117; ENTERPRISE IRRIGATION DISTRICT V.
FARMERS MUTUAL CANAL CO., 243 U.S. 157; MURDOCK V. MEMPHIS, 20 WALL. 
590, AND WOULD WARRANT DISMISSING THE WRIT AS IMPROVIDENTLY GRANTED,
BENZ V. NEW YORK STATE THRUWAY AUTHORITY, 369 U.S. 147; ATCHLEY V.
CALIFORNIA, 366 U.S. 207, THE OPINION UNDERTAKES, AS MR. JUSTICE
BRENNAN CHARACTERIZES IT, A "GRATUITOUS EXPOSITION" UPON THOSE MORE
DIFFICULT CONSTITUTIONAL PROBLEMS ORIGINALLY THOUGHT PRESENTED FOR
DECISION.  THESE EXPRESSIONS OF DICTA ARE IN A FORM WHICH CAN ONLY LEAD
TO MISUNDERSTANDING AND CONFUSION IN FUTURE CASES.  SUCH DICTA, WHEN
WRITTEN INTO OUR DECISIONS, HAVE AN UNFORTUNATE WAY OF TURNING UP IN
DIGESTS AND DECISIONS OF LOWER COURTS; THEY ARE OFTEN QUOTED AS
EVIDENCING THE CONSIDERED OPINION OF THIS COURT, AND THIS IS SO EVEN
THOUGH SUCH INTENTION IS DENIED BY THE WRITER. 

I AM EXPRESSING MY VIEWS SEPARATELY BECAUSE I BELIEVE THAT FOR
SEVERAL REASONS IT IS PARTICULARLY REGRETTABLE FOR THE COURT TO DEPART
FROM ITS NORMAL PRACTICE IN THIS CASE.  THE NEW YORK COURT OF APPEALS,
THE HIGHEST COURT OF THE STATE, SPLIT 4-3 ON THE RESULT REACHED BELOW. 
AND, BECAUSE THAT COURT DID NOT WRITE A FULL OPINION IN ANNOUNCING ITS
DECISION, WE CANNOT TELL WHETHER IT INTENDED TO DECIDE THE
CONSTITUTIONAL ISSUES OR WHETHER IT EVEN CONSIDERED THEM.  ITS
REMITTITUR IS UNCONVINCING IN DETERMINING WHETHER ITS JUDGMENT WAS
INTENDED TO REST ON AN INDEPENDENT STATE GROUND.  SEE BENZ V. NEW YORK
STATE THRUWAY AUTHORITY, SUPRA.  WHAT MAKES THIS COURT'S ACTION
SINGULARLY UNFORTUNATE IS THAT THE STATE COURTS, STATE OFFICIALS AND
THE PEOPLE OF NEW YORK STATE, HAVE UNIFORMLY CONDEMNED THE
EAVESDROPPING IN THIS CASE AS DEPLORABLE.  THE NEW YORK APPELLATE
DIVISION TERMED THE ACTION AT THE JAIL "REPREHENSIBLE AND OFFENSIVE,"
PEOPLE V. LANZA, 10 APP. DIV. 2D 315, 318, 199 N.Y.S.2D 598, 601;
EARLIER THE COURT HAD CALLED IT "ATROCIOUS AND INEXCUSABLE," LANZA V.
NEW YORK STATE JOINT LEGISLATIVE COMMITTEE, 3 APP. DIV. 2D 531, 533,
162 N.Y.S.2D 467, 470; ALSO "FLAGRANT AND UNPRECEDENTED," MATTER OF
REUTER, 4 APP. DIV. 2D 252, 255, 164 N.Y.S.2D 534, 538.  IN THE COURT
OF APPEALS IT WAS CHARACTERIZED AS A "GROSS WRONG," LANZA V. NEW YORK
STATE JOINT LEGISLATIVE COMMITTEE, 3 N.Y.2D 92, 101, 164 N.Y.S.2D 9,
16, 143 N.E.2D 772, 777 (DISSENTING OPINION), AND COUNSEL FOR THE JOINT
COMMITTEE MADE NO EFFORT TO JUSTIFY OR EXCUSE THE ACTION, BUT ON THE
CONTRARY HIMSELF CALLED IT "REPULSIVE AND REPUGNANT," IBID.  THE
GOVERNOR OF NEW YORK TERMED UNCHECKED EAVESDROPPING "UNWHOLESOME AND
DANGEROUS," MCKINNEY'S 1958 SESSION LAWS OF NEW YORK, 1837; AND THE
CHAIRMAN OF THE NEW YORK JOINT LEGISLATIVE COMMITTEE ON PRIVACY OF
COMMUNICATIONS CALLED THE INCIDENT "DEPLORABLE" AND REPORTED THAT IT
HAD "BROUGHT FORTH A STORM OF PROTEST FROM LAWYERS, SOME OF WHOM HAD
NOT PREVIOUSLY BEEN AUDIBLY CONCERNED WITH  ...  EFFORTS TO PROTECT THE
PEOPLE'S RIGHT OF PRIVACY."  REPORT OF THE NEW YORK JOINT LEGISLATIVE
COMMITTEE ON PRIVACY OF COMMUNICATIONS, LEGISLATIVE DOCUMENT (1958) NO.
9, 25.  IT HAS BEEN REPORTED THAT A NEW YORK TRIAL COURT JUDGE FOUND IT
NECESSARY TO RELEASE A PRISONER WITHOUT BAIL SO THAT HE WOULD BE ABLE
TO CONSULT HIS ATTORNEY, THE JUDGE NOT BEING ABLE TO FEEL CONFIDENT
AFTER THIS INCIDENT THAT THERE WAS ANY JAIL IN THE STATE WHERE THE
PRISONER AND HIS LAWYERS COULD BE SECURE AGAINST ELECTRONIC
EAVESDROPPING.  COMMENT, 27 FORDHAM L. REV. 390, 394, N. 35.  THE MOST
STRIKING INDICATION OF THE DEGREE TO WHICH THE PEOPLE OF THE STATE OF
NEW YORK WERE SHOCKED BY THE INCIDENT WAS THE ENACTMENT OF ARTICLE 73
OF THE PENAL LAW OF NEW YORK, MAKING IT A FELONY TO DO WHAT THE
OFFICIALS IN THIS CASE DID.  AND FINALLY THE APPELLATE DIVISION OF THE
SUPREME COURT, AFFIRMED BY THE NEW YORK COURT OF APPEALS, REDUCED THE
BIZARRE AND UNPRECEDENTED SENTENCE OF TEN YEARS FOR CONTEMPT OF COURT
TO ONE YEAR. 

IT SEEMS TO ME THAT WHEN THIS COURT PUTS ITS IMPRIMATUR UPON CONDUCT
SO UNIVERSALLY REPROACHED BY EVERY BRANCH OF THE GOVERNMENT OF THE
STATE IN WHICH THE CASE AROSE, WE INVITE OFFICIAL LAWLESSNESS WHICH, IN
THE LONG RUN, CAN BE FAR MORE HARMFUL TO OUR SOCIETY THAN INDIVIDUAL
CONTUMACY. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN CONCUR IN THIS OPINION. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN. 

I MUST PROTEST THE COURT'S GRATUITOUS EXPOSITION OF SEVERAL GRAVE
CONSTITUTIONAL ISSUES CONFESSEDLY NOT BEFORE US FOR DECISION IN THIS
CASE.  THE TENOR OF THE COURT'S WHOLLY UNNECESSARY COMMENTS IS
SUFFICIENTLY OMINOUS TO JUSTIFY THE STRONGEST EMPHASIS THAT OF THE
ABBREVIATED COURT OF SEVEN WHO PARTICIPATE IN THE DECISION, FEWER THAN
FIVE WILL EVEN INTIMATE VIEWS THAT THE CONSTITUTIONAL PROTECTIONS
AGAINST INVASION OF PRIVACY DO NOT OPERATE FOR THE BENEFIT OF PERSONS -
WHETHER INMATES OR VISITORS - INSIDE A JAIL, OR THAT THE PETITIONER
LACKS STANDING TO CHALLENGE SECRET ELECTRONIC INTERCEPTION OF HIS
CONVERSATIONS BECAUSE HE HAS NOT A SUFFICIENT POSSESSORY INTEREST IN
THE PREMISES, OR THAT THE FOURTH AMENDMENT CANNOT BE APPLIED TO PROTECT
AGAINST TESTIMONIAL COMPULSION IMPOSED SOLELY AS A RESULT OF AN
UNCONSTITUTIONAL SEARCH OR SEIZURE. 

THE PETITIONER WAS CONVICTED ON SEVERAL COUNTS FOR FAILURE TO ANSWER
EACH OF A NUMBER OF QUESTIONS PUT TO HIM BY A STATE LEGISLATIVE
COMMITTEE.  ON APPEAL, THE JUDGMENT, WHICH HAD IMPOSED 10 IDENTICAL
SENTENCES TO RUN CONSECUTIVELY, WAS MODIFIED BY THE APPELLATE DIVISION
TO PROVIDE THAT THE SENTENCES ON EACH COUNT SHOULD RUN CONCURRENTLY. 
THE RECORD SHOWS, AFFIRMATIVELY AND WITHOUT REBUTTAL, THAT AT LEAST TWO
OF THE QUESTIONS WERE CONCEIVED AND PROPOUNDED INDEPENDENTLY OF THE
SEARCH AND SEIZURE WHICH THE PETITIONER CLAIMS INFRINGED HIS
CONSTITUTIONAL RIGHTS; AND THERE IS NOTHING WHICH SUPPORTS HIS
CONTENTION THAT HE WOULD NOT HAVE BEEN QUESTIONED AT ALL BUT FOR THAT
CLAIMED INFRINGEMENT. 

UNDER THESE CIRCUMSTANCES, IT IS APPARENT THAT THE JUDGMENT OF THE
COURT OF APPEALS OF NEW YORK CAN BE ADEQUATELY SUPPORTED BY AN
INDEPENDENT GROUND OF STATE LAW.  IT IS THE SETTLED LAW OF THAT COURT
THAT THERE IS NO OCCASION TO REVIEW A CONVICTION ON ONE COUNT OF AN
INDICTMENT OR INFORMATION IF THE JUDGMENT AND SENTENCE ARE SUFFICIENTLY
SUSTAINED BY ANOTHER COUNT.  (FN1)  SINCE THIS COURT IS THUS ABLE TO
SEE THAT THE JUDGMENT OF THE COURT BELOW - WHICH IS UNELUCIDATED BY AN
OPINION - IS MAINTAINABLE ON AN ADEQUATE, INDEPENDENT STATE GROUND, IT
SHOULD FORBEAR FROM ANY FURTHER REVIEW OF THE CASE; FOR, IN LIGHT OF
THE CLEARLY ESTABLISHED NEW YORK LAW, A DECISION BY THIS COURT ON THE
FEDERAL QUESTIONS SOUGHT TO BE TENDERED HERE WOULD BE BUT AN EXERCISE
IN FUTILITY.  (FN2)  IN ANY EVENT, HISTORIC PRINCIPLES DEMAND THAT ANY
CONSIDERATION OF CONSTITUTIONAL ISSUES AT LEAST ABIDE A CLARIFICATION
FROM THE COURT BELOW AS TO THE BASIS FOR ITS JUDGMENT, IN ORDER "THAT
THIS COURT NOT INDULGE IN NEEDLESS DISSERTATIONS ON CONSTITUTIONAL
LAW."  MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551, 557. 

I DO NOT MEAN, HOWEVER, THAT I WOULD SEEK CLARIFICATION IN THIS
CASE.  IT TAXES CREDULITY TO SUPPOSE THAT THE COURT BELOW WOULD
DISAGREE WITH THE MAJORITY HERE THAT TWO OF THE COUNTS ARE FREE OF ANY
TAINT, OR DEPART FROM ITS OWN SETTLED DOCTRINE THAT EVEN ONE SUCH COUNT
REQUIRES AFFIRMANCE.  AND EVEN IF THIS COURT WERE SOMEHOW FREE TO
DISREGARD THE LAW OF NEW YORK, THE COURT HAS IN THE PAST LIMITED ITS
REVIEW OF A STATE CONVICTION IN ACCORDANCE WITH "THE RULE, FREQUENTLY
STATED BY THIS COURT, THAT A JUDGMENT UPON AN INDICTMENT CONTAINING
SEVERAL COUNTS, WITH A VERDICT OF GUILTY UPON EACH, WILL BE SUSTAINED
IF ANY COURT IS GOOD, AND SUFFICIENT IN ITSELF TO SUPPORT THE
JUDGMENT."  WHITEFIELD V. OHIO, 297 U.S. 431, 438. 

WHILE THE COURT DOES ULTIMATELY REST ITS DISPOSITION OF THE CASE ON
THIS GROUND, IT DOES SO BY WAY OF AFFIRMANCE.  IT IS AT LEAST ARGUABLE
THAT THE PROPER DISPOSITION IS TO DISMISS THE CASE BECAUSE CERTIORARI
WAS IMPROVIDENTLY GRANTED.  BENZ V. NEW YORK STATE THRUWAY AUTHORITY,
369 U.S. 147; (FN3) FOX FILM CORP. V. MULLER, 296 U.S. 207.  BUT IN NO
EVENT IS IT ARGUABLE THAT ANY OF THE CONSTITUTIONAL QUESTIONS THE COURT
REACHES ARE BEFORE IT. 

FN1  SEE PEOPLE V. FADEN, 271 N.Y. 435, 3 N.E.2D 584; PEOPLE V.
CUMMINS, 209 N.Y. 283, 103 N.E. 169; HOPE V. PEOPLE, 83 N.Y. 418;
PEOPLE V. DAVIS, 56 N.Y. 95.  THAT IS ALSO THE FEDERAL RULE, SEE
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 85. 

IN AFFIRMING THE CONVICTION, THE APPELLATE DIVISION FOUND IT
UNNECESSARY TO PASS ON THE PETITIONER'S CONTENTION THAT HE COULD BE
CONVICTED OF ONLY A SINGLE CRIME BECAUSE, THE JUDGMENT HAVING BEEN
MODIFIED TO CAUSE THE SENTENCES TO RUN CONCURRENTLY, "THE CONVICTION ON
ANY ONE COUNT IS SUFFICIENT TO SUSTAIN THE SENTENCE  ...  .  (PEOPLE V.
FADEN, 271 N.Y.  435, 444-445.)"  10 APP. DIV. 2D 315, 319, 199
N.Y.S.2D 598, 603.  THE COURT OF APPEALS, WHICH IN AFFIRMING WITHOUT
OPINION MODIFIED THE JUDGMENT TO MAKE CLEAR THAT ONLY A SINGLE CRIME
HAD BEEN COMMITTED, FOUND NO OCCASION TO RE-EXAMINE THE SENTENCE
BECAUSE "IT IS CLEAR  ...  THAT THE NUMBER OF CRIMES OF WHICH THE
DEFENDANT WAS FOUND GUILTY DID NOT ENTER INTO THE DURATION OF THE
SENTENCE IMPOSED."  9 N.Y.2D 895, 897, 175 N.E.2D 833. 

FN2  COMPARE BACHTEL V. WILSON, 204 U.S. 36, IN WHICH THE COURT
DISMISSED A WRIT OF ERROR TO THE SUPREME COURT OF OHIO, WHICH HAD
WRITTEN NO OPINION.  THE COURT SAID, AT P.40:  "BEFORE WE CAN PRONOUNCE
THE JUDGMENT OF THE COURT BELOW IN CONFLICT WITH THE FEDERAL
CONSTITUTION IT MUST BE MADE TO APPEAR THAT ITS DECISION WAS ONE
NECESSARILY IN CONFLICT THEREWITH AND NOT THAT POSSIBLY, OR EVEN
PROBABLY, IT WAS  ...  .  WE DO NOT DECIDE THAT THE STATE STATUTE IS TO
BE GIVEN A CONSTRUCTION WHICH WOULD RENDER IT CONSTITUTIONAL, BUT WE DO
HOLD THAT IN VIEW OF THE SILENCE OF THE SUPREME COURT WE ARE NOT
JUSTIFIED IN ASSUMING THAT IT DID NOT SO CONSTRUE THE STATUTE."    FN3
IN BENZ, AS HERE, THE COURT OF APPEALS HAD GRANTED THE PETITIONER AN
AMENDED REMITTITUR RECITING THAT IT HAD NECESSARILY PASSED UPON A
FEDERAL CONSTITUTIONAL QUESTION, TO WIT:  "WHETHER PLAINTIFF WAS
DEPRIVED OF JUST COMPENSATION IN VIOLATION OF THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT."  NOTWITHSTANDING THAT REPRESENTATION, WE
CONCLUDED THAT THE COURT OF APPEALS HAD "DECIDED NO MORE THAN" A
QUESTION RELATING TO STATE COURT JURISDICTION.  THAT ACTION WAS
ENTIRELY CONSISTENT WITH HONEYMAN V. HANAN, 300 U.S. 14, 18-19:  "A
CERTIFICATE OR STATEMENT BY THE STATE COURT THAT A FEDERAL QUESTION HAS
BEEN PRESENTED TO IT AND NECESSARILY PASSED UPON IS NOT CONTROLLING. 
WHILE SUCH A CERTIFICATE OR STATEMENT MAY AID THIS COURT IN THE
EXAMINATION OF THE RECORD, IT CANNOT AVAIL TO FORECLOSE THE INQUIRY
WHICH IT IS OUR DUTY TO MAKE OR TO IMPORT INTO THE RECORD A FEDERAL
QUESTION WHICH OTHERWISE THE RECORD WHOLLY FAILS TO PRESENT."  INDEED,
AS HONEYMAN V. HANAN, SUPRA, AND HONEYMAN V. HANAN, 302 U.S. 375,
ILLUSTRATE, PROPER PURSUIT OF THE MATTER WHEN SUSPICIONS ARE AROUSED
MAY DISCLOSE THAT A STATE COURT'S CERTIFICATE SIMPLY DID NOT MEAN WHAT
IT APPEARED, AT FIRST GLANCE, TO SAY. 

THE REMITTITUR IN THIS CASE RECITED:  "DEFENDANT ARGUED THAT THE
IMPOSITION OF PENAL SANCTIONS FOR HIS REFUSAL TO ANSWER CERTAIN
QUESTIONS DEPRIVED HIM OF LIBERTY WITHOUT DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  THE COURT OF APPEALS HELD THAT
DEFENDANT'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED."  THE COURT OF
APPEALS WROTE NO OPINION, AND IT IS UNDERSTOOD IN NEW YORK THAT
"AFFIRMANCE WITHOUT OPINION IS MERELY AN ADOPTION OF THE RESULT REACHED
BY THE APPELLATE DIVISION, THE REASONING OF WHICH IS NOT NECESSARILY
ADOPTED."  CARMODY'S NEW YORK PRACTICE (7TH ED. 1956) 678.  SEE
COMMISSIONER V. JACKSON, 265 N.Y. 440, 441, 193 N.E. 262; SODERMAN V.
STONE BAR ASSOCIATES, INC., 208 MISC. 864, 867, 146 N.Y.S.2D 233, 236. 
FOR ALL WE CAN TELL, THE COURT OF APPEALS CONCLUDED THAT THE
PETITIONER'S "CONSTITUTIONAL RIGHTS WERE NOT VIOLATED" BY REASONING
THAT THE TWO UNTAINTED QUESTIONS SUPPORTED THE CONVICTION. 
..END :

















TAYLOR V. LOUISIANA 370 U.S. 154 


NO. 773.  DECIDED JUNE 4, 1962 - REVERSED. 


SIX NEGROES WERE CONVICTED IN A STATE COURT OF VIOLATING LOUISIANA'S
BREACH-OF-THE-PEACE STATUTE AND WERE FINED AND SENTENCED TO JAIL.  FOUR
OF THEM WENT INTO A WAITING ROOM CUSTOMARILY RESERVED FOR WHITE PEOPLE
AT A BUS DEPOT AND, WHEN REQUESTED BY POLICE TO LEAVE, THEY REFUSED TO
DO SO, CLAIMING THAT THEY WERE INTERSTATE PASSENGERS.  THE OTHER TWO
WERE ARRESTED WHILE SITTING NEARBY IN THE AUTOMOBILE WHICH HAD BROUGHT
THE SIX TO THE BUS STATION.  THERE WAS NO EVIDENCE OF VIOLENCE; BUT THE
TRIAL COURT SAID THAT THE MERE PRESENCE OF NEGROES IN A WHITE WAITING
ROOM WAS LIKELY TO GIVE RISE TO A BREACH OF THE PEACE AND WAS
SUFFICIENT EVIDENCE OF GUILT.  IT HELD THAT FOUR HAD VIOLATED THE
BREACH-OF-THE-PEACE STATUTE AND THAT THE OTHER TWO HAD COUNSELED AND
PROCURED THEM TO DO SO. HELD:  SINCE THE ONLY EVIDENCE TO SUPPORT THE
CHARGE WAS THAT THE DEFENDANTS WERE VIOLATING A CUSTOM THAT SEGREGATED
PEOPLE IN WAITING ROOMS ACCORDING TO THEIR RACE, A PRACTICE NOT ALLOWED
BY FEDERAL LAW IN INTERSTATE TRANSPORTATION FACILITIES, THE JUDGMENTS
ARE REVERSED.  PP. 154-156. 

TAYLOR ET AL. V. LOUISIANA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA. 

PER CURIAM. 

PETITIONERS, SIX NEGROES, WERE CONVICTED OF VIOLATING LOUISIANA'S
BREACH-OF-THE-PEACE STATUTE, LA. REV. STAT., 1950, SEC. 14:103.1, (FN1)
AND WERE GIVEN FINES AND JAIL TERMS BY THE STATE COURT.  THE LOUISIANA
SUPREME COURT DECLINED TO REVIEW THEIR CONVICTIONS, AND THE CASE IS
HERE ON PETITION FOR A WRIT OF CERTIORARI WHICH WE HAVE GRANTED. 

FOUR OF THE SIX PETITIONERS WENT INTO THE WAITING ROOM CUSTOMARILY
RESERVED FOR WHITE PEOPLE AT THE TRAILWAYS BUS DEPOT IN SHREVEPORT,
LOUISIANA, IN ORDER TO TAKE A BUS TO JACKSON, MISSISSIPPI.  THE CHIEF
OF POLICE OF SHREVEPORT APPROACHED THE FOUR AND ASKED THEM WHY THEY
WERE IN THE STATION.  THEY TOLD HIM THEY WERE INTERSTATE PASSENGERS AND
WISHED TO PURCHASE TICKETS AND OBTAIN TRAVEL INFORMATION.  THE CHIEF
TOLD THEM THEY COULD DO THIS IN THE COLORED WAITING ROOM AND ORDERED
THEM TO MOVE ON.  WHEN THE FOUR REFUSED TO LEAVE, STATING AGAIN THAT
THEY WERE INTERSTATE PASSENGERS AND ASSERTING THEIR RIGHTS UNDER
FEDERAL LAW, THEY WERE ORDERED TO LEAVE OR BE ARRESTED.  THE SPOKESMAN
OF THE GROUP THEN SAID, "WE HAVE NO CHOICE; GO AHEAD AND ARREST US." 
THE POLICE THEREUPON ARRESTED THE FOUR OF THEM.  THE OTHER TWO
PETITIONERS WERE THEN ARRESTED, WHILE SITTING NEARBY IN THE AUTOMOBILE
WHICH HAD BROUGHT THE SIX TO THE BUS STATION. 

AT THE TRIAL THERE WAS TESTIMONY THAT IMMEDIATELY UPON PETITIONERS'
ENTRY INTO THE WAITING ROOM MANY OF THE PEOPLE THEREIN BECAME RESTLESS
AND THAT SOME ONLOOKERS CLIMBED ONTO SEATS TO GET A BETTER VIEW. 
NEVERTHELESS, RESPONDENT ADMITS THESE PERSONS MOVED ON WHEN ORDERED TO
DO SO BY THE POLICE.  THERE WAS NO EVIDENCE OF VIOLENCE.  THE RECORD
SHOWS THAT THE PETITIONERS WERE QUIET, ORDERLY, AND POLITE.  THE TRIAL
COURT SAID, HOWEVER, THAT THE MERE PRESENCE OF NEGROES IN A WHITE
WAITING ROOM WAS LIKELY TO GIVE RISE TO A BREACH OF THE PEACE.  IT HELD
THE MERE PRESENCE OF THE NEGROES IN THE WAITING ROOM, AS PART OF A
PRECONCEIVED PLAN, WAS SUFFICIENT EVIDENCE OF GUILT.  IT ACCORDINGLY
HELD THAT THE FOUR HAD VIOLATED THE STATE BREACH-OF-THE-PEACE STATUTE
AND THAT THE OTHER TWO HAD COUNSELED AND PROCURED THE OTHERS TO COMMIT
THE CRIME. 

HERE, AS IN GARNER V. LOUISIANA, 368 U.S. 157, THE ONLY EVIDENCE TO
SUPPORT THE CHARGE WAS THAT PETITIONERS WERE VIOLATING A CUSTOM THAT
SEGREGATED PEOPLE IN WAITING ROOMS ACCORDING TO THEIR RACE, A PRACTICE
NOT ALLOWED IN INTERSTATE TRANSPORTATION FACILITIES BY REASON OF
FEDERAL LAW.  (FN2) BOYNTON V. VIRGINIA, 364 U.S. 454, 459-460.  AND
SEE MAYOR & CITY COUNCIL OF BALTIMORE V. DAWSON, 350 U.S. 877 (PUBLIC
BEACHES); HOLMES V. CITY OF ATLANTA, 350 U.S. 879 (MUNICIPAL GOLF
COURSES); GAYLE V. BROWDER, 352 U.S. 903 (BUS); NEW ORLEANS PARK ASSN.
V. DETIEGE, 358 U.S. 54 (MUNICIPAL GOLF COURSE AND PARK).  THE
JUDGMENTS OF CONVICTION MUST THEREFORE BE REVERSED. 

FN1  IN RELEVANT PART, SEC. 14:103.1 PROVIDES:  "A.  WHOEVER WITH
INTENT TO PROVOKE A BREACH OF THE PEACE, OR UNDER CIRCUMSTANCES SUCH
THAT A BREACH OF THE PEACE MAY BE OCCASIONED THEREBY:  (1) CROWDS OR
CONGREGATES WITH OTHERS  ...  IN OR UPON  ...  ANY  ...  PUBLIC PLACE
OR BUILDING  ... AND WHO FAILS OR REFUSES TO DISPERSE AND MOVE ON, OR
DISPERSE OR MOVE ON, WHEN ORDERED SO TO DO BY ANY LAW ENFORCEMENT
OFFICER OF ANY MUNICIPALITY  ...  IN WHICH SUCH ACT OR ACTS ARE
COMMITTED, OR BY ANY LAW ENFORCEMENT OFFICER OF THE STATE OF LOUISIANA
...  SHALL BE GUILTY OF DISTURBING THE PEACE." 

FN2  "THAT THERE EXISTS A SERIOUS AND DIFFICULT PROBLEM ARISING FROM
A FEELING OF RACE HOSTILITY WHICH THE LAW IS POWERLESS TO CONTROL, AND
TO WHICH IT MUST GIVE A MEASURE OF CONSIDERATION, MAY BE FREELY
ADMITTED, BUT ITS SOLUTION CANNOT BE PROMOTED BY DEPRIVING CITIZENS OF
THEIR CONSTITUTIONAL RIGHTS AND PRIVILEGES."  BUCHANAN V. WARLEY, 245
U.S. 60, 80-81. 

MR. JUSTICE HARLAN WOULD GRANT CERTIORARI AND SET THE CASE FOR
ARGUMENT. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :





















CREEK NATION V. UNITED STATES 370 U.S. 157 


NO. 124.  ARGUED APRIL 24, 1962 - DECIDED JUNE 4, 1962 - JUDGMENT
AFFIRMED BY AN EQUALLY DIVIDED COURT.  - REPORTED BELOW:  152 CT. CL.
747. 


CREEK NATION V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














HOLDEN V. PIONEER BROADCASTING CO. 370 U.S. 157 


NO. 1092, MISC.  DECIDED JUNE 4, 1962.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW: 228 ORE.  405, 365 P.2D 845. 


HOLDEN V. PIONEER BROADCASTING CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













JEFFERSON LAKE SULPHUR CO. V. NEW JERSEY 370 U.S. 158 


NO. 861.  DECIDED JUNE 4, 1962.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 36 N.J. 577, 178 A.2D 329. 


JEFFERSON LAKE SULPHUR CO. V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













ENOCHS V. WILLIAMS PACKING & NAVIGATION CO., INC. 370 U.S. 1 


NO. 493.  ARGUED APRIL 18, 1962 - DECIDED MAY 28, 1962 - 291 F.2D 402,
REVERSED. 


RESPONDENT, WHICH IS IN THE BUSINESS OF PROVIDING FISHING TRAWLERS TO
COMMERCIAL FISHERMEN, SUED IN A FEDERAL DISTRICT COURT TO ENJOIN THE
COLLECTION OF SOCIAL SECURITY AND UNEMPLOYMENT TAXES CLAIMED BY
PETITIONER TO BE PAST DUE.  ALTHOUGH PETITIONER ADDUCED EVIDENCE IN
SUPPORT OF HIS CLAIM THAT THERE WAS AN EMPLOYMENT RELATIONSHIP, THE
DISTRICT COURT FOUND THAT SUCH TAXES WERE NOT, IN FACT, PAYABLE AND
THAT THEIR COLLECTION WOULD DESTROY RESPONDENT'S BUSINESS; AND IT
PERMANENTLY ENJOINED THEIR COLLECTION.  HELD:  THE SUIT FOR INJUNCTION
WAS BARRED BY SEC. 7421(A) OF THE INTERNAL REVENUE CODE OF 1954, AND A
JUDGMENT SUSTAINING THE INJUNCTION IS REVERSED.  MILLER V. STANDARD NUT
MARGARINE CO., 284 U.S. 498, DISTINGUISHED.  PP. 1-8. 

ENOCHS, DISTRICT DIRECTOR OF INTERNAL REVENUE, V. WILLIAMS PACKING &
NAVIGATION CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

FEARING THAT THE DISTRICT DIRECTOR OF INTERNAL REVENUE FOR
MISSISSIPPI WOULD ATTEMPT TO COLLECT ALLEGEDLY PAST DUE SOCIAL SECURITY
AND UNEMPLOYMENT TAXES FOR THE YEARS 1953, 1954 AND 1955, RESPONDENT,
IN LATE 1957, BROUGHT SUIT IN THE DISTRICT COURT, MAINTAINING THAT IT
WAS NOT LIABLE FOR THE EXACTIONS AND SEEKING AN INJUNCTION PROHIBITING
THEIR COLLECTION.  THE DISTRICT DIRECTOR, PETITIONER HEREIN, MADE NO
OBJECTION TO THE ISSUANCE OF A PRELIMINARY RESTRAINING ORDER BUT
RESISTED A PERMANENT INJUNCTION, ASSERTING THAT THE PROVISIONS OF SEC.
7421(A) OF THE INTERNAL REVENUE CODE OF 1954 BARRED ANY SUCH INJUNCTIVE
PROCEEDING.  THAT SECTION PROVIDES: 

"EXCEPT AS PROVIDED IN SECTIONS 6212(A) AND (C), AND 6213(A), NO SUIT
FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR COLLECTION OF ANY TAX
SHALL BE MAINTAINED IN ANY COURT." 

THE EXCEPTION FOR TAX COURT PROCEEDINGS CREATED BY SECS. 6212(A) AND
(C) AND 6213(A) WAS NOT APPLICABLE BECAUSE THAT BODY IS WITHOUT
JURISDICTION OVER TAXES OF THE SORT HERE IN ISSUE.  NEVERTHELESS, ON
JULY 14, 1959, THE COURT, RELYING UPON MILLER V. STANDARD NUT MARGARINE
CO., 284 U.S. 498, PERMANENTLY ENJOINED COLLECTION OF THE TAXES ON THE
GROUND THAT THEY WERE NOT, IN FACT, PAYABLE AND BECAUSE COLLECTION
WOULD DESTROY RESPONDENT'S BUSINESS.  176 F. SUPP. 168.  ON JUNE 14,
1961, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED, ONE JUDGE
DISSENTING.  291 F.2D 402.  WE GRANTED CERTIORARI TO DETERMINE WHETHER
THE CASE CAME WITHIN THE SCOPE OF THIS COURT'S HOLDING IN NUT MARGARINE
WHICH INDICATED THAT SEC. 7421(A) WAS NOT, IN THE "SPECIAL AND
EXTRAORDINARY FACTS AND CIRCUMSTANCES" OF THAT CASE, (FN1) INTENDED TO
APPLY.  (FN2)  368 U.S. 937. 

RESPONDENT CORPORATION (HEREINAFTER REFERRED TO AS WILLIAMS) IS
ENGAGED IN THE BUSINESS OF PROVIDING TRAWLERS TO FISHERMEN WHO TAKE
SHRIMP, OYSTERS AND FISH OFF THE LOUISIANA AND MISSISSIPPI COASTS.  IT
IS THE GOVERNMENT'S POSITION THAT THESE FISHERMEN ARE THE CORPORATION'S
EMPLOYEES WITHIN THE MEANING OF SECS. 1426(D)(2) AND 1607(I) OF THE
INTERNAL REVENUE CODE OF 1939, 26 U.S.C. (1952 ED.), AND SECS
3121(D)(2) AND 3306(I) OF THE INTERNAL REVENUE CODE OF 1954.  THESE
EXISTENCE OF THE EMPLOYER-EMPLOYEE RELATIONSHIP.  AS STATED ON UNITED
STATES V. SILK, 331 U.S. 704, 716, "DEGREES OF CONTROL, OPPORTUNITIES
FOR PROFIT OR LOSS, INVESTMENT IN FACILITIES, PERMANENCY OF RELATION
AND SKILL REQUIRED  ...  ARE IMPORTANT FOR DECISION (UNDER THESE
STATUTES)."  IF, UNDER THE INVOLVED CIRCUMSTANCES OF THIS CASE, THE
FISHERMEN WERE EMPLOYEES, RESPONDENT WILLIAMS IS ADMITTEDLY LIABLE FOR
SOCIAL SECURITY AND UNEMPLOYMENT TAXES FOR THE YEARS IN QUESTION. 
(FN3) 

THE FOLLOWING FACTS, MATERIAL TO THE QUESTION OF THE EXISTENCE OF THE
EMPLOYMENT RELATIONSHIP, WERE ESTABLISHED.  WILLIAMS PROVIDED ITS BOATS
TO CAPTAINS WHICH IT SELECTED; THEY EMPLOYED THEIR OWN CREWS AND COULD
FIRE THEM AT WILL, BUT THE RELATIONSHIP BETWEEN RESPONDENT CORPORATION
AND THE FISHERMEN WAS NOT ORDINARILY OF SHORT DURATION.  THE CATCH WAS
GENERALLY SOLD TO WILLIAMS WHICH IN TURN RESOLD IT TO THE DEJEAN
PACKING CO., A PARTNERSHIP CLOSELY ALLIED TO WILLIAMS BOTH BY REASON OF
INTEGRATED OPERATION AND SUBSTANTIALLY IDENTICAL OWNERSHIP.  THE
PROCEEDS, AFTER THE DEDUCTION OF EXPENSES, WERE DIVIDED AMONG THE
CAPTAIN, THE CREW AND THE BOAT.  WILLIAMS RECEIVED AN ADDITIONAL SHARE
IF IT SUPPLIED THE NETS AND RIGGING.  IT EXTENDED CREDIT TO THE
CAPTAINS AND MADE IT POSSIBLE FOR THEM TO OBTAIN CREDIT ELSEWHERE, AND
IF A TRIP WAS UNSUCCESSFUL AND IF THE CAPTAIN OR CREW MEMBERS NO LONGER
CONTINUED TO OPERATE A BOAT, WILLIAMS ABSORBED THE LOSS. 

WITH RESPECT TO THE EXISTENCE OF A RECOGNIZED RIGHT OF CONTROL BY THE
EMPLOYER, AS MIGHT BE EXPECTED, THE TESTIMONY WAS IN CONFLICT. 
PETITIONER INTRODUCED EVIDENCE TO SHOW THAT WILLIAMS COULD EFFECTIVELY
REFUSE ICE TO BOATS AND THUS DETERMINE WHETHER THEY WOULD GO OUT, THAT
THE BOATS' TIMES OF RETURN WERE SOMETIMES DIRECTED BY THE RESPONDENT
CORPORATION, THAT IT COULD DICTATE THE NATURE OF THE CATCH, AND THAT
PERMISSION WAS NEEDED TO SELL THE CATCH TO SOMEONE OTHER THAN
RESPONDENT.  AND PETITIONER POINTED OUT THAT BOTH RESPONDENT AND ITS
FISHERMEN HAD FOR OTHER PURPOSES REPRESENTED THAT AN EMPLOYER-EMPLOYEE
RELATIONSHIP EXISTED.  (FN4)  ON THE OTHER HAND, THE DISTRICT COURT
HERE FOUND, AND THE RESPONDENT NOW ASSERTS, THAT THE CORPORATION WAS
WHOLLY WITHOUT ANY RIGHT OF CONTROL. 

ATTEMPTING TO ESTABLISH A BASIS FOR EQUITABLE JURISDICTION, THE
CORPORATION MAINTAINS THAT IT WILL BE THROWN INTO BANKRUPTCY IF
REQUIRED TO PAY THE ENTIRE ASSESSMENT OF $41,568.57.  IT IS UNDISPUTED
THAT WILLIAMS ITSELF IS WITHOUT AVAILABLE FUNDS IN THIS AMOUNT, BUT THE
GOVERNMENT SUGGESTS THAT RESPONDENT HAS DENUDED ITSELF OF ASSETS IN
ANTICIPATION OF ITS TAX LIABILITY, THAT DEJEAN'S ASSETS SHOULD BE
CONSIDERED AS BELONGING TO RESPONDENT, AND THAT, IN ANY EVENT, THE
RESPONDENT CORPORATION MAY PAY THE ASSESSMENT FOR A SINGLE QUARTER AND
THEN SUE FOR A REFUND. 

THE OBJECT OF SEC. 7421(A) IS TO WITHDRAW JURISDICTION FROM THE STATE
AND FEDERAL COURTS TO ENTERTAIN SUITS SEEKING INJUNCTIONS PROHIBITING
THE COLLECTION OF FEDERAL TAXES.  IN MILLER V. STANDARD NUT MARGARINE
CO., SUPRA, THIS COURT WAS CONFRONTED WITH THE QUESTION WHETHER A
MANUFACTURER OF "SOUTHERN NUT PRODUCT" COULD ENJOIN THE COLLECTION OF
FEDERAL OLEOMARGARINE TAXES ON ITS GOODS.  PRIOR TO THE ASSESSMENT IN
ISSUE THREE LOWER FEDERAL COURT CASES HAD HELD THAT SIMILAR PRODUCTS
WERE NONTAXABLE AND, BY LETTER, THE COLLECTOR HAD INFORMED THE
MANUFACTURER THAT "SOUTHERN NUT PRODUCT" WAS NOT SUBJECT TO THE TAX. 
THIS COURT FOUND THAT "A VALID OLEOMARGARINE TAX COULD BY NO LEGAL
POSSIBILITY HAVE BEEN ASSESSED AGAINST  ...  THE MANUFACTURER, AND
THEREFORE THE REASONS UNDERLYING  ...  (SEC. 7421(A)) APPLY, IF AT ALL,
WITH LITTLE FORCE."  (FN5) NOTING THAT COLLECTION OF THE TAX "WOULD
DESTROY ITS BUSINESS, RUIN IT FINANCIALLY AND INFLICT LOSS FOR WHICH IT
WOULD HAVE NO REMEDY AT LAW," THE COURT HELD THAT AN INJUNCTION COULD
PROPERLY ISSUE.  ID., AT 510-511.  THE COURTS BELOW SEEM TO HAVE FOUND
THAT NUT MARGARINE DECIDES THAT SEC. 7421(A) DOES NOT BAR SUIT FOR AN
INJUNCTION AGAINST THE COLLECTION OF TAXES NOT DUE IF THE LEGAL REMEDY
IS INADEQUATE.  WE CANNOT AGREE. 

THE ENACTMENT OF THE COMPARABLE TAX INJUNCTION ACT OF 1937, 50 STAT.
738, NOW, AS AMENDED, 28 U.S.C. SEC. 1341, FORBIDDING THE FEDERAL
COURTS TO ENTERTAIN SUITS TO ENJOIN COLLECTION OF STATE TAXES "WHERE A
PLAIN, SPEEDY, AND EFFICIENT REMEDY MAY BE HAD AT LAW OR IN EQUITY IN
THE COURTS OF SUCH STATE," THROWS LIGHT ON THE PROPER CONSTRUCTION TO
BE GIVEN SEC. 7421(A).  IT INDICATES THAT IF CONGRESS HAD DESIRED TO
MAKE THE AVAILABILITY OF THE INJUNCTIVE REMEDY AGAINST THE COLLECTION
OF FEDERAL TAXES NOT LAWFULLY DUE DEPEND UPON THE ADEQUACY OF THE LEGAL
REMEDY, IT WOULD HAVE SAID SO EXPLICITLY.  ITS FAILURE TO DO SO SHOWS
THAT SUCH A SUIT MAY NOT BE ENTERTAINED MERELY BECAUSE COLLECTION WOULD
CAUSE AN IRREPARABLE INJURY, SUCH AS THE RUINATION OF THE TAXPAYER'S
ENTERPRISE.  THIS IS NOT TO SAY, OF COURSE, THAT INADEQUACY OF THE
LEGAL REMEDY NEED NOT BE ESTABLISHED IF SEC. 7421(A) IS INAPPLICABLE;
INDEED, THE CONTRARY RULE IS WELL ESTABLISHED.  SEE, E.G., MATTHEWS V.
RODGERS, 284 U.S. 521; MILLER V. STANDARD NUT MARGARINE CO., SUPRA;
DOWS V. CHICAGO, 11 WALL.  108.  HOWEVER, SINCE WE CONCLUDE THAT SEC.
7421(A) BARS ANY SUIT FOR AN INJUNCTION IN THIS CASE, WE NEED NOT
DETERMINE WHETHER THE TAXPAYER WOULD SUFFER IRREPARABLE INJURY IF
COLLECTION WERE EFFECTED. 

THE MANIFEST PURPOSE OF SEC. 7421(A) IS TO PERMIT THE UNITED STATES
TO ASSESS AND COLLECT TAXES ALLEGED TO BE DUE WITHOUT JUDICIAL
INTERVENTION, AND TO REQUIRE THAT THE LEGAL RIGHT TO THE DISPUTED SUMS
BE DETERMINED IN A SUIT FOR REFUND.  IN THIS MANNER THE UNITED STATES
IS ASSURED OF PROMPT COLLECTION OF ITS LAWFUL REVENUE.  (FN6)
NEVERTHELESS, IF IT IS CLEAR THAT UNDER NO CIRCUMSTANCES COULD THE
GOVERNMENT ULTIMATELY PREVAIL, THE CENTRAL PURPOSE OF THE ACT IS
INAPPLICABLE AND, UNDER THE NUT MARGARINE CASE, THE ATTEMPTED
COLLECTION MAY BE ENJOINED IF EQUITY JURISDICTION OTHERWISE EXISTS.  IN
SUCH A SITUATION THE EXACTION IS MERELY IN "THE GUISE OF A TAX."  ID.,
AT 509. 

WE BELIEVE THAT THE QUESTION OF WHETHER THE GOVERNMENT HAS A CHANCE
OF ULTIMATELY PREVAILING IS TO BE DETERMINED ON THE BASIS OF THE
INFORMATION AVAILABLE TO IT AT THE TIME OF SUIT.  ONLY IF IT IS THEN
APPARENT THAT, UNDER THE MOST LIBERAL VIEW OF THE LAW AND THE FACTS,
THE UNITED STATES CANNOT ESTABLISH ITS CLAIM, MAY THE SUIT FOR AN
INJUNCTION BE MAINTAINED.  OTHERWISE, THE DISTRICT COURT IS WITHOUT
JURISDICTION, AND THE COMPLAINT MUST BE DISMISSED.  TO REQUIRE MORE
THAN GOOD FAITH ON THE PART OF THE GOVERNMENT WOULD UNDULY INTERFERE
WITH A COLLATERAL OBJECTIVE OF THE ACT - PROTECTION OF THE COLLECTOR
FROM LITIGATION PENDING A SUIT FOR REFUND.  AND TO PERMIT EVEN THE
MAINTENANCE OF A SUIT IN WHICH AN INJUNCTION COULD ISSUE ONLY AFTER THE
TAXPAYER'S NONLIABILITY HAD BEEN CONCLUSIVELY ESTABLISHED MIGHT "IN
EVERY PRACTICAL SENSE OPERATE TO SUSPEND COLLECTION OF THE  ...  TAXES
UNTIL THE LITIGATION IS ENDED."  GREAT LAKES DREDGE & DOCK CO. V.
HUFFMAN, 319 U.S. 293, 299.  THUS, IN GENERAL, THE ACT PROHIBITS SUITS
FOR INJUNCTIONS BARRING THE COLLECTION OF FEDERAL TAXES WHEN THE
COLLECTING OFFICERS HAVE MADE THE ASSESSMENT AND CLAIM THAT IT IS
VALID.  SNYDER V. MARKS, 109 U.S. 189, 194. 

THE RECORD BEFORE US CLEARLY REVEALS THAT THE GOVERNMENT'S CLAIM OF
LIABILITY WAS NOT WITHOUT FOUNDATION.  THEREFORE, WE REVERSE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE TO THE DISTRICT
COURT WITH DIRECTIONS TO DISMISS THE COMPLAINT.  REVERSED. 

FN1  284 U.S., AT 511. 

FN2  SEE ALSO HILL V. WALLACE, 259 U.S. 44, 62; ALLEN V. REGENTS, 304
U.S. 439, 449. 

FN3  SEE SEC. 1410, 1939 CODE, AND SEC. 3111, 1954 CODE (SOCIAL
SECURITY TAXES); SEC. 1600, 1939 CODE, AND SEC. 3301, 1954 CODE
(UNEMPLOYMENT TAXES). 

PRESUMABLY THE EXCEPTIONS FOR FISHING OPERATIONS CREATED BY SECS.
1426(B)(15) AND 1607(C)(17) OF THE 1939 CODE AND BY SEC. 3306(C)(17) OF
THE 1954 CODE DO NOT APPLY BECAUSE THE VESSELS HERE INVOLVED WERE OF
MORE THAN 10 NET TONS. 

FN4  FOR INSTANCE, DURING WORLD WAR II, RESPONDENT REPRESENTED THAT
THE FISHERMEN WERE EMPLOYEES FOR THE PURPOSE OF SECURING OCCUPATIONAL
DEFERMENTS FOR THEM.  AND IN THE COURSE OF A PRIOR ANTITRUST
LITIGATION, INSTITUTED AGAINST A UNION TO WHICH RESPONDENT'S FISHERMEN
BELONGED, THE UNION DEFENDED AGAINST THE CHARGE OF PRICE FIXING ON THE
GROUND THAT ITS MEMBERS WERE EMPLOYEES.  THE GOVERNMENT, CURIOUSLY,
SUCCESSFULLY MAINTAINED THAT AN EMPLOYMENT RELATIONSHIP DID NOT EXIST. 
SEE GULF COAST SHRIMPERS & OYSTERMANS ASSN. V. UNITED STATES, 236 F.2D
658 (C.A. 5TH CIR. 1956). 

FN5  ID., AT 510. 

THE PRODUCT IN ISSUE WAS MADE ONLY WITH VEGETABLE OILS.  THE
PERTINENT TAXING STATUTE DEFINED "OLEOMARGARINE" AS "ALL SUBSTANCES
HERETOFORE KNOWN AS OLEOMARGARINE, OLEO, OLEOMARGARINE-OIL, BUTTERINE,
LARDINE, SUINE, AND NEUTRAL; ALL MIXTURES AND COMPOUNDS OF
OLEOMARGARINE, OLEO, OLEOMARGARINE-OIL, BUTTERINE, LARDINE, SUINE, AND
NEUTRAL; ALL LARD EXTRACTS AND TALLOW EXTRACTS; AND ALL MIXTURES AND
COMPOUNDS OF TALLOW, BEEF-FAT, SUET, LARD, LARD-OIL, VEGETABLE-OIL
ANNOTTO (A COLORING MATERIAL), AND OTHER COLORING MATTER, INTESTINAL
FAT, AND OFFAL FAT MADE IN IMITATION OR SEMBLANCE OF BUTTER, OR WHEN SO
MADE, CALCULATED OR INTENDED TO BE SOLD AS BUTTER OR FOR BUTTER."  24
STAT. 209.  THE ASSESSMENT WAS BASED ON THE ARGUMENT THAT THE STATUTORY
REFERENCE TO "VEGETABLE-OIL ANNOTTO" WAS MEANT TO BRING PRODUCTS MADE
WITH VEGETABLE OIL WITHIN THE DEFINITION.  THE COURT HELD THAT THE ACT
WAS OBVIOUSLY DESIGNED TO INCLUDE ONLY VEGETABLE-OIL COLORING USED IN
CONJUNCTION WITH ANIMAL-FAT PRODUCTS; IN FACT, AFTER THE TAX YEAR
INVOLVED, THE STATUTE HAD BEEN AMENDED TO BRING VEGETABLE-OIL PRODUCTS
WITHIN THE DEFINITION.  SEE 46 STAT. 1022. 

FN6  COMPARE S. REP. NO. 1035, 75TH CONG., 1ST SESS. 2, CONCERNING 28
U.S.C. SEC. 1341: 

"THE EXISTING PRACTICE OF THE FEDERAL COURTS IN ENTERTAINING TAX
INJUNCTION SUITS AGAINST STATE OFFICERS MAKES IT POSSIBLE FOR FOREIGN
CORPORATIONS DOING BUSINESS IN SUCH STATES TO WITHHOLD FROM THEM AND
THEIR GOVERNMENTAL SUBDIVISIONS, TAXES IN SUCH VAST AMOUNTS AND FOR
SUCH LONG PERIODS OF TIME AS TO SERIOUSLY DISRUPT STATE AND COUNTY
FINANCES.  THE PRESSING NEEDS OF THESE STATES FOR THIS TAX MONEY IS SO
GREAT THAT IN MANY INSTANCES THEY HAVE BEEN COMPELLED TO COMPROMISE
THESE SUITS, AS A RESULT OF WHICH SUBSTANTIAL PORTIONS OF THE TAX HAVE
BEEN LOST TO THE STATES WITHOUT A JUDICIAL EXAMINATION INTO THE REAL
MERITS OF THE CONTROVERSY." 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :




NATIONAL LABOR RELATIONS BOARD V. WASHINGTON ALUMINUM CO. 370 U.S. 9 


NO. 464.  ARGUED APRIL 10, 1962 - DECIDED MAY 28, 1962 - 291 F.2D 869,
REVERSED. 


RESPONDENT IS A MANUFACTURER SUBJECT TO THE NATIONAL LABOR RELATIONS
ACT.  AFTER SEVERAL OF THE EIGHT NONUNION EMPLOYEES IN ITS MACHINE SHOP
HAD COMPLAINED INDIVIDUALLY ABOUT THE COLDNESS OF THE SHOP DURING THE
WINTER, SEVEN OF THEM WALKED OUT TOGETHER ON AN EXTRAORDINARILY COLD
DAY, SAYING THAT IT WAS "TOO COLD TO WORK."  RESPONDENT DISCHARGED THEM
FOR VIOLATING A RULE FORBIDDING ANY EMPLOYEE TO LEAVE WITHOUT
PERMISSION OF THE FOREMAN.  THE NATIONAL LABOR RELATIONS BOARD FOUND
THAT THEY HAD ACTED IN CONCERT IN PROTEST AGAINST RESPONDENT'S FAILURE
TO PROVIDE ADEQUATE HEAT IN THEIR PLACE OF WORK AND THAT THEIR
DISCHARGE VIOLATED SEC. 8(A)(1) OF THE ACT BY INTERFERING WITH THEIR
RIGHT UNDER SEC. 7 TO ACT IN CONCERT FOR MUTUAL AID OR PROTECTION, AND
IT ORDERED RESPONDENT TO REINSTATE THEM WITH BACK PAY.  HELD:  THE
BOARD CORRECTLY INTERPRETED AND APPLIED THE ACT TO THE CIRCUMSTANCES OF
THIS CASE, AND THE COURT OF APPEALS SHOULD HAVE ENFORCED ITS ORDER. 
PP. 10-18. 

(A)  THESE EMPLOYEES DID NOT LOSE THEIR RIGHT UNDER SEC. 7 TO ENGAGE
IN CONCERTED ACTIVITIES MERELY BECAUSE THEY DID NOT PRESENT A SPECIFIC
DEMAND UPON THEIR EMPLOYER TO REMEDY A CONDITION THEY FOUND
OBJECTIONABLE.  PP. 14-15. 

(B)  THE WALKOUT INVOLVED HERE GREW OUT OF A "LABOR DISPUTE" WITHIN
THE MEANING OF SEC.  2(A) OF THE ACT.  PP. 15-16. 

(C)  THE FACT THAT RESPONDENT HAD AN ESTABLISHED RULE FORBIDDING
EMPLOYEES TO LEAVE THEIR WORK WITHOUT PERMISSION OF THE FOREMAN WAS NOT
JUSTIFIABLE "CAUSE" FOR THEIR DISCHARGE WITHIN THE MEANING OF SEC.
10(C).  PP. 16-17. 

NATIONAL LABOR RELATIONS BOARD V. WASHINGTON ALUMINUM CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, WITH CHIEF JUDGE
SOBELOFF DISSENTING, REFUSED TO ENFORCE AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD DIRECTING THE RESPONDENT WASHINGTON ALUMINUM COMPANY TO
REINSTATE AND MAKE WHOLE SEVEN EMPLOYEES WHOM THE COMPANY HAD
DISCHARGED FOR LEAVING THEIR WORK IN THE MACHINE SHOP WITHOUT
PERMISSION ON CLAIMS THAT THE SHOP WAS TOO COLD TO WORK IN. (FN1)
BECAUSE THAT DECISION RAISES IMPORTANT QUESTIONS AFFECTING THE PROPER
ADMINISTRATION OF THE NATIONAL LABOR RELATIONS ACT, (FN2) WE GRANTED
CERTIORARI.  (FN3) 

THE BOARD'S ORDER, AS SHOWN BY THE RECORD AND ITS FINDINGS, RESTED
UPON THESE FACTS AND CIRCUMSTANCES.  THE RESPONDENT COMPANY IS ENGAGED
IN THE FABRICATION OF ALUMINUM PRODUCTS IN BALTIMORE, MARYLAND, A
BUSINESS HAVING INTERSTATE ASPECTS THAT SUBJECT IT TO REGULATION UNDER
THE NATIONAL LABOR RELATIONS ACT.  THE MACHINE SHOP IN WHICH THE SEVEN
DISCHARGED EMPLOYEES WORKED WAS NOT INSULATED AND HAD A NUMBER OF DOORS
TO THE OUTSIDE THAT HAD TO BE OPENED FREQUENTLY.  AN OIL FURNACE
LOCATED IN AN ADJOINING BUILDING WAS THE CHIEF SOURCE OF HEAT FOR THE
SHOP, ALTHOUGH THERE WERE TWO GAS-FIRED SPACE HEATERS THAT CONTRIBUTED
HEAT TO A LESSER EXTENT.  THE HEAT PRODUCED BY THESE UNITS WAS NOT
ALWAYS SATISFACTORY AND, EVEN PRIOR TO THE DAY OF THE WALKOUT INVOLVED
HERE, SEVERAL OF THE EIGHT MACHINISTS WHO MADE UP THE DAY SHIFT AT THE
SHOP HAD COMPLAINED FROM TIME TO TIME TO THE COMPANY'S FOREMAN "OVER
THE COLD WORKING CONDITIONS."  (FN4) 

JANUARY 5, 1959, WAS AN EXTRAORDINARILY COLD DAY FOR BALTIMORE, WITH
UNUSUALLY HIGH WINDS AND A LOW TEMPERATURE OF 11 DEGREES FOLLOWED BY A
HIGH OF 22.  WHEN THE EMPLOYEES ON THE DAY SHIFT CAME TO WORK THAT
MORNING, THEY FOUND THE SHOP BITTERLY COLD, DUE NOT ONLY TO THE
UNUSUALLY HARSH WEATHER, BUT ALSO TO THE FACT THAT THE LARGE OIL
FURNACE HAD BROKEN DOWN THE NIGHT BEFORE AND HAD NOT AS YET BEEN PUT
BACK INTO OPERATION.  AS THE WORKERS GATHERED IN THE SHOP JUST BEFORE
THE STARTING HOUR OF 7:30, ONE OF THEM, A MR. CARON, WENT INTO THE
OFFICE OF MR. JARVIS, THE FOREMAN, HOPING TO WARM HIMSELF BUT, INSTEAD,
FOUND THE FOREMAN'S QUARTERS AS UNCOMFORTABLE AS THE REST OF THE SHOP. 
AS CARON AND JARVIS SAT IN JARVIS' OFFICE DISCUSSING HOW BITINGLY COLD
THE BUILDING WAS, SOME OF THE OTHER MACHINISTS WALKED BY THE OFFICE
WINDOW "HUDDLED" TOGETHER IN A FASHION THAT CAUSED JARVIS TO EXCLAIM
THAT "IF THOSE FELLOWS HAD ANY GUTS AT ALL, THEY WOULD GO HOME.  WHEN
THE STARTING BUZZER SOUNDED A FEW MOMENTS LATER, CARON WALKED BACK TO
HIS WORKING PLACE IN THE SHOP AND FOUND ALL THE OTHER MACHINISTS
"HUDDLED THERE, SHAKING A LITTLE, COLD."  CARON THEN SAID TO THESE
WORKERS, "  ... DAVE JARVIS TOLD ME IF WE HAD ANY GUTS, WE WOULD GO
HOME  ...  .  I AM GOING HOME, IT IS TOO DAMNED COLD TO WORK."  CARON
ASKED THE OTHER WORKERS WHAT THEY WERE GOING TO DO AND, AFTER SOME
DISCUSSION AMONG THEMSELVES, THEY DECIDED TO LEAVE WITH HIM.  ONE OF
THESE WORKERS, TESTIFYING BEFORE THE BOARD, SUMMARIZED THEIR ENTIRE
DISCUSSION THIS WAY:  "AND WE HAD ALL GOT TOGETHER AND THOUGHT IT WOULD
BE A GOOD IDEA TO GO HOME; MAYBE WE COULD GET SOME HEAT BROUGHT INTO
THE PLANT THAT WAY."  (FN5)  AS THEY STARTED TO LEAVE, JARVIS
APPROACHED AND PERSUADED ONE OF THE WORKERS TO REMAIN AT THE JOB.  BUT
CARON AND THE OTHER SIX WORKERS ON THE DAY SHIFT LEFT PRACTICALLY IN A
BODY IN A MATTER OF MINUTES AFTER THE 7:30 BUZZER. 

WHEN THE COMPANY'S GENERAL FOREMAN ARRIVED BETWEEN 7:45 AND 8 THAT
MORNING, JARVIS PROMPTLY INFORMED HIM THAT ALL BUT ONE OF THE EMPLOYEES
HAD LEFT BECAUSE THE SHOP WAS TOO COLD.  THE COMPANY'S PRESIDENT CAME
IN AT APPROXIMATELY 8:20 A.M. AND, UPON LEARNING OF THE WALKOUT,
IMMEDIATELY SAID TO THE FOREMAN,  "  ...  IF THEY HAVE ALL GONE, WE ARE
GOING TO TERMINATE THEM."  AFTER DISCUSSION "AT GREAT LENGTH" BETWEEN
THE GENERAL FOREMAN AND THE COMPANY PRESIDENT AS TO WHAT MIGHT BE THE
EFFECT OF THE WALKOUT ON EMPLOYEE DISCIPLINE AND PLANT PRODUCTION, THE
PRESIDENT FORMALIZED HIS DISCHARGE OF THE WORKERS WHO HAD WALKED OUT BY
GIVING ORDERS AT 9 A.M. THAT THE AFFECTED WORKERS SHOULD BE NOTIFIED
ABOUT THEIR DISCHARGE IMMEDIATELY, EITHER BY TELEPHONE, TELEGRAM OR
PERSONALLY.  THIS WAS DONE. 

ON THESE FACTS THE BOARD FOUND THAT THE CONDUCT OF THE WORKERS WAS A
CONCERTED ACTIVITY TO PROTEST THE COMPANY'S FAILURE TO SUPPLY ADEQUATE
HEAT IN ITS MACHINE SHOP, THAT SUCH CONDUCT IS PROTECTED UNDER THE
PROVISION OF SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT WHICH
GUARANTEES THAT "EMPLOYEES SHALL HAVE THE RIGHT  ...  TO ENGAGE IN  ...
CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID OR PROTECTION," (FN6) AND THAT THE DISCHARGE OF THESE
WORKERS BY THE COMPANY AMOUNTED TO AN UNFAIR LABOR PRACTICE UNDER SEC.
8(A)(1) OF THE ACT, WHICH FORBIDS EMPLOYERS "TO INTERFERE WITH,
RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED
IN SECTION 7."  ACTING UNDER THE AUTHORITY OF SEC. 10(C) OF THE ACT,
WHICH PROVIDES THAT WHEN AN EMPLOYER HAS BEEN GUILTY OF AN UNFAIR LABOR
PRACTICE THE BOARD CAN "TAKE SUCH AFFIRMATIVE ACTION INCLUDING
REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE
THE POLICIES OF THIS ACT," (FN8) THE BOARD THEN ORDERED THE COMPANY TO
REINSTATE THE DISCHARGED WORKERS TO THEIR PREVIOUS POSITIONS AND TO
MAKE THEM WHOLE FOR LOSSES RESULTING FROM WHAT THE BOARD FOUND TO HAVE
BEEN THE UNLAWFUL TERMINATION OF THEIR EMPLOYMENT. 

IN DENYING ENFORCEMENT OF THIS ORDER, THE MAJORITY OF THE COURT OF
APPEALS TOOK THE POSITION THAT BECAUSE THE WORKERS SIMPLY "SUMMARILY
LEFT THEIR PLACE OF EMPLOYMENT" WITHOUT AFFORDING THE COMPANY AN
"OPPORTUNITY TO AVOID THE WORK STOPPAGE BY GRANTING A CONCESSION TO A
DEMAND," THEIR WALKOUT DID NOT AMOUNT TO A CONCERTED ACTIVITY PROTECTED
BY SEC. 7 OF THE ACT.  (FN9)  ON THIS BASIS, THEY HELD THAT THERE WAS
NO JUSTIFICATION FOR THE CONDUCT OF THE WORKERS IN VIOLATING THE
ESTABLISHED RULES OF THE PLANT BY LEAVING THEIR JOBS WITHOUT PERMISSION
AND THAT THE BOARD HAD THEREFORE EXCEEDED ITS POWER IN ISSUING THE
ORDER INVOLVED HERE BECAUSE SEC.  10(C) DECLARES THAT THE BOARD SHALL
NOT REQUIRE REINSTATEMENT OR BACK PAY FOR AN EMPLOYEE WHOM AN EMPLOYER
HAS SUSPENDED OR DISCHARGED "FOR CAUSE."  (FN10) 

WE CANNOT AGREE THAT EMPLOYEES NECESSARILY LOSE THEIR RIGHT TO ENGAGE
IN CONCERTED ACTIVITIES UNDER SEC. 7 MERELY BECAUSE THEY DO NOT PRESENT
A SPECIFIC DEMAND UPON THEIR EMPLOYER TO REMEDY A CONDITION THEY FIND
OBJECTIONABLE.  THE LANGUAGE OF SEC. 7 IS BROAD ENOUGH TO PROTECT
CONCERTED ACTIVITIES WHETHER THEY TAKE PLACE BEFORE, AFTER, OR AT THE
SAME TIME SUCH A DEMAND IS MADE.  TO COMPEL THE BOARD TO INTERPRET AND
APPLY THAT LANGUAGE IN THE RESTRICTED FASHION SUGGESTED BY THE
RESPONDENT HERE WOULD ONLY TEND TO FRUSTRATE THE POLICY OF THE ACT TO
PROTECT THE RIGHT OF WORKERS TO ACT TOGETHER TO BETTER THEIR WORKING
CONDITIONS.  INDEED, AS INDICATED BY THIS VERY CASE, SUCH AN
INTERPRETATION OF SEC. 7 MIGHT PLACE BURDENS UPON EMPLOYEES SO GREAT
THAT IT WOULD EFFECTIVELY NULLIFY THE RIGHT TO ENGAGE IN CONCERTED
ACTIVITIES WHICH THAT SECTION PROTECTS.  THE SEVEN EMPLOYEES HERE WERE
PART OF A SMALL GROUP OF EMPLOYEES WHO WERE WHOLLY UNORGANIZED.  THEY
HAD NO BARGAINING REPRESENTATIVE AND, IN FACT, NO REPRESENTATIVE OF ANY
KIND TO PRESENT THEIR GRIEVANCES TO THEIR EMPLOYER.  UNDER THESE
CIRCUMSTANCES, THEY HAD TO SPEAK FOR THEMSELVES AS BEST THEY COULD.  AS
POINTED OUT ABOVE, PRIOR TO THE DAY THEY LEFT THE SHOP, SEVERAL OF THEM
HAD REPEATEDLY COMPLAINED TO COMPANY OFFICIALS ABOUT THE COLD WORKING
CONDITIONS IN THE SHOP.  THESE HAD BEEN MORE OR LESS SPONTANEOUS
INDIVIDUAL PLEAS, UNSUPPORTED BY ANY THREAT OF CONCERTED PROTEST, TO
WHICH THE COMPANY APPARENTLY GAVE LITTLE CONSIDERATION AND WHICH IT NOW
SAYS THE BOARD SHOULD HAVE TREATED AS NOTHING MORE THAN "THE SAME SORT
OF GRIPES AS THE GRIPES MADE ABOUT THE HEAT IN THE SUMMERTIME."  THE
BITTER COLD OF JANUARY 5, HOWEVER, FINALLY BROUGHT THESE WORKERS'
INDIVIDUAL COMPLAINTS INTO CONCERT SO THAT SOME MORE EFFECTIVE ACTION
COULD BE CONSIDERED.  HAVING NO BARGAINING REPRESENTATIVE AND NO
ESTABLISHED PROCEDURE BY WHICH THEY COULD TAKE FULL ADVANTAGE OF THEIR
UNANIMITY OF OPINION IN NEGOTIATIONS WITH THE COMPANY, THE MEN TOOK THE
MOST DIRECT COURSE TO LET THE COMPANY KNOW THAT THEY WANTED A WARMER
PLACE IN WHICH TO WORK.  SO, AFTER TALKING AMONG THEMSELVES, THEY
WALKED OUT TOGETHER IN THE HOPE THAT THIS ACTION MIGHT SPOTLIGHT THEIR
COMPLAINT AND BRING ABOUT SOME IMPROVEMENT IN WHAT THEY CONSIDERED TO
BE THE "MISERABLE" CONDITIONS OF THEIR EMPLOYMENT.  THIS WE THINK WAS
ENOUGH TO JUSTIFY THE BOARD'S HOLDING THAT THEY WERE NOT REQUIRED TO
MAKE ANY MORE SPECIFIC DEMAND THAN THEY DID TO BE ENTITLED TO THE
PROTECTION OF SEC. 7. 

ALTHOUGH THE COMPANY CONTENDS TO THE CONTRARY, WE THINK THAT THE
WALKOUT INVOLVED HERE DID GROW OUT OF A "LABOR DISPUTE" WITHIN THE
PLAIN MEANING OF THE DEFINITION OF THAT TERM IN SEC. 2(9) OF THE ACT,
WHICH DECLARES THAT IT INCLUDES "ANY CONTROVERSY CONCERNING TERMS,
TENURE OR CONDITIONS OF EMPLOYMENT  ...  ."  (FN11)  THE FINDINGS OF
THE BOARD, WHICH ARE SUPPORTED BY SUBSTANTIAL EVIDENCE AND WHICH WERE
NOT DISTURBED BELOW, SHOW A RUNNING DISPUTE BETWEEN THE MACHINE SHOP
EMPLOYEES AND THE COMPANY OVER THE HEATING OF THE SHOP ON COLD DAYS - A
DISPUTE WHICH CULMINATED IN THE DECISION OF THE EMPLOYEES TO ACT
CONCERTEDLY IN AN EFFORT TO FORCE THE COMPANY TO IMPROVE THAT CONDITION
OF THEIR EMPLOYMENT.  THE FACT THAT THE COMPANY WAS ALREADY MAKING
EVERY EFFORT TO REPAIR THE FURNACE AND BRING HEAT INTO THE SHOP THAT
MORNING DOES NOT CHANGE THE NATURE OF THE CONTROVERSY THAT CAUSED THE
WALKOUT.  AT THE VERY MOST, THAT FACT MIGHT TEND TO INDICATE THAT THE
CONDUCT OF THE MEN IN LEAVING WAS UNNECESSARY AND UNWISE, AND IT HAS
LONG BEEN SETTLED THAT THE REASONABLENESS OF WORKERS' DECISIONS TO
ENGAGE IN CONCERTED ACTIVITY IS IRRELEVANT TO THE DETERMINATION OF
WHETHER A LABOR DISPUTE EXISTS OR NOT.  (FN12)  MOREOVER, THE EVIDENCE
HERE SHOWS THAT THE CONDUCT OF THESE WORKERS WAS FAR FROM UNJUSTIFIED
UNDER THE CIRCUMSTANCES.  THE COMPANY'S OWN FOREMAN EXPRESSED THE
OPINION THAT THE SHOP WAS SO COLD THAT THE MEN SHOULD GO HOME.  THIS
STATEMENT BY THE FOREMAN BUT EMPHASIZES THE OBVIOUS - THAT IS, THAT THE
CONDITIONS OF COLDNESS ABOUT WHICH COMPLAINT HAD BEEN MADE BEFORE HAD
BEEN SO AGGRAVATED ON THE DAY OF THE WALKOUT THAT THE CONCERTED ACTION
OF THE MEN IN LEAVING THEIR JOBS SEEMED LIKE A PERFECTLY NATURAL AND
REASONABLE THING TO DO. 

NOR CAN WE ACCEPT THE COMPANY'S CONTENTION THAT BECAUSE IT ADMITTEDLY
HAD AN ESTABLISHED PLANT RULE WHICH FORBADE EMPLOYEES TO LEAVE THEIR
WORK WITHOUT PERMISSION OF THE FOREMAN, THERE WAS JUSTIFIABLE "CAUSE"
FOR DISCHARGING THESE EMPLOYEES, WHOLLY SEPARATE AND APART FROM ANY
CONCERTED ACTIVITIES IN WHICH THEY ENGAGED IN PROTEST AGAINST THE
POORLY HEATED PLANT.  SECTION 10(C) OF THE ACT DOES AUTHORIZE AN
EMPLOYER TO DISCHARGE EMPLOYEES FOR "CAUSE" AND OUR CASES HAVE LONG
RECOGNIZED THIS RIGHT ON THE PART OF AN EMPLOYER.  (FN13)  BUT THIS, OF
COURSE, CANNOT MEAN THAT AN EMPLOYER IS AT LIBERTY TO PUNISH A MAN BY
DISCHARGING HIM FOR ENGAGING IN CONCERTED ACTIVITIES WHICH SEC. 7 OF
THE ACT PROTECTS.  AND THE PLANT RULE IN QUESTION HERE PURPORTS TO
PERMIT THE COMPANY TO DO JUST THAT FOR IT WOULD PROHIBIT EVEN THE MOST
PLAINLY PROTECTED KINDS OF CONCERTED WORK STOPPAGES UNTIL AND UNLESS
THE PERMISSION OF THE COMPANY'S FOREMAN WAS OBTAINED. 

IT IS OF COURSE TRUE THAT SEC. 7 DOES NOT PROTECT ALL CONCERTED
ACTIVITIES, BUT THAT ASPECT OF THE SECTION IS NOT INVOLVED IN THIS
CASE.  THE ACTIVITIES ENGAGED IN HERE DO NOT FALL WITHIN THE NORMAL
CATEGORIES OF UNPROTECTED CONCERTED ACTIVITIES SUCH AS THOSE THAT ARE
UNLAWFUL, (FN14) VIOLENT (FN15) OR IN BREACH OF CONTRACT.  (FN16)  NOR
CAN THEY BE BROUGHT UNDER THIS COURT'S MORE RECENT PRONOUNCEMENT WHICH
DENIED THE PROTECTION OF SEC. 7 TO ACTIVITIES CHARACTERIZED AS
"INDEFENSIBLE" BECAUSE THEY WERE THERE FOUND TO SHOW A DISLOYALTY TO
THE WORKERS' EMPLOYER WHICH THIS COURT DEEMED UNNECESSARY TO CARRY ON
THE WORKERS' LEGITIMATE CONCERTED ACTIVITIES.  (FN17)  THE ACTIVITIES
OF THESE SEVEN EMPLOYEES CANNOT BE CLASSIFIED AS "INDEFENSIBLE" BY ANY
RECOGNIZED STANDARD OF CONDUCT.  INDEED, CONCERTED ACTIVITIES BY
EMPLOYEES FOR THE PURPOSE OF TRYING TO PROTECT THEMSELVES FROM WORKING
CONDITIONS AS UNCOMFORTABLE AS THE TESTIMONY AND BOARD FINDINGS SHOWED
THEM TO BE IN THIS CASE ARE UNQUESTIONABLY ACTIVITIES TO CORRECT
CONDITIONS WHICH MODERN LABOR-MANAGEMENT LEGISLATION TREATS AS TOO BAD
TO HAVE TO BE TOLERATED IN A HUMANE AND CIVILIZED SOCIETY LIKE OURS. 

WE HOLD THEREFORE THAT THE BOARD CORRECTLY INTERPRETED AND APPLIED
THE ACT TO THE CIRCUMSTANCES OF THIS CASE AND IT WAS ERROR FOR THE
COURT OF APPEALS TO REFUSE TO ENFORCE ITS ORDER.  THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED AND THE CAUSE IS REMANDED TO THAT COURT
WITH DIRECTIONS TO ENFORCE THE ORDER IN ITS ENTIRETY.  REVERSED AND
REMANDED.   FN1  291 F.2D 869.  THE COURT OF APPEALS ALSO REFUSED TO
ENFORCE ANOTHER BOARD ORDER REQUIRING THE RESPONDENT COMPANY TO BARGAIN
COLLECTIVELY WITH THE INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS
OF AMERICA, AFL-CIO, AS THE CERTIFIED BARGAINING REPRESENTATIVE OF ITS
EMPLOYEES.  SINCE THE UNION'S STATUS AS MAJORITY BARGAINING
REPRESENTATIVE TURNS ON THE BALLOTS CAST IN THE BOARD ELECTION BY FOUR
OF THE SEVEN DISCHARGED EMPLOYEES, THE ENFORCEABILITY OF THAT ORDER
DEPENDS UPON THE VALIDITY OF THE DISCHARGES BEING CHALLENGED IN THE
PRINCIPAL PART OF THE CASE.  OUR DECISION ON THE DISCHARGE QUESTION
WILL THEREFORE ALSO GOVERN THE REFUSAL-TO-BARGAIN ISSUE.    FN2  49
STAT. 449, AS AMENDED, 61 STAT. 136, 29 U.S.C. SEC. 151 ET SEQ. 

FN3  368 U.S. 924. 

FN4  THE BOARD MADE A SPECIFIC FINDING ON THIS ISSUE:  "WE RELY,
INTER ALIA, UPON  ...  THE CREDITED TESTIMONY OF EMPLOYEES HEINLEIN,
CARON, AND GEORGE AS TO PREVIOUS COMPLAINTS MADE TO THE RESPONDENT'S
FOREMEN OVER THE COLD WORKING CONDITIONS, AND TO THE EFFECT THAT THE
MEN LEFT ON THE MORNING OF JANUARY 5 IN PROTEST OF THE COLDNESS AT THE
PLANT  ...  ."  126 N.L.R.B. 1410, 1411. 

FN5  THE TRIAL EXAMINER EXPRESSLY CREDITED THIS TESTIMONY AND THE
BOARD EXPRESSLY RELIED UPON IT. 126 N.L.R.B., AT 1411. 

FN6  49 STAT. 452, AS AMENDED, 61 STAT. 140, 29 U.S.C. SEC. 157. 
SELF-ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, TO
BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, AND
TO ENGAGE IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION, AND SHALL ALSO HAVE THE
RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES EXCEPT TO THE
EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN AGREEMENT REQUIRING
MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT AS
AUTHORIZED IN SECTION 8(A)(3)." 

FN7  49 STAT. 452, AS AMENDED, 61 STAT. 140, 29 U.S.C. SEC.
158(A)(1). 

FN8  49 STAT. 453-454, AS AMENDED, 61 STAT. 146-147, 29 U.S.C. SEC.
160(C). 

FN9  291 F.2D, AT 877. 

FN10  "NO ORDER OF THE BOARD SHALL REQUIRE THE REINSTATEMENT OF ANY
INDIVIDUAL AS AN EMPLOYEE WHO HAS BEEN SUSPENDED OR DISCHARGED, OR THE
PAYMENT TO HIM OF ANY BACK PAY, IF SUCH INDIVIDUAL WAS SUSPENDED OR
DISCHARGED FOR CAUSE."  49 STAT. 453-454, AS AMENDED, 61 STAT.  146
147, 29 U.S.C. SEC. 160(C). 

FN11  49 STAT. 450, AS AMENDED, 61 STAT. 137-138, 29 U.S.C. SEC.
152(9). 

FN12  "THE WISDOM OR UNWISDOM OF THE MEN, THEIR JUSTIFICATION OR LACK
OF IT, IN ATTRIBUTING TO RESPONDENT IN UNREASONABLE OR ARBITRARY
ATTITUDE IN CONNECTION WITH THE NEGOTIATIONS, CANNOT DETERMINE WHETHER,
WHEN THEY STRUCK, THEY DID SO AS A CONSEQUENCE OF OR IN CONNECTION WITH
A CURRENT LABOR DISPUTE."  LABOR BOARD V. MACKAY RADIO & TELEGRAPH CO.,
304 U.S. 333, 344. 

FN13  SEE, E.G., LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301
U.S. 1, 45. 

FN14  SOUTHERN STEAMSHIP CO. V. LABOR BOARD, 316 U.S. 31. 

FN15  LABOR BOARD V. FANSTEEL METALLURGICAL CORP., 306 U.S. 240. 

FN16  LABOR BOARD V. SANDS MANUFACTURING CO., 306 U.S. 332. 

FN17  LABOR BOARD V. LOCAL UNION NO. 1229, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, 346 U.S. 464, 477. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :





















SUNKIST GROWERS, INC. V. WINCKLER & SMITH CITRUS PRODUCTS CO. 370 U.S.
19 


NO. 241.  ARGUED MARCH 21-22, 1962 - DECIDED MAY 28, 1962 - 284 F.2D 1,
REVERSED AND CAUSE REMANDED. 


A GROUP OF CITRUS FRUIT GROWERS IN CALIFORNIA AND ARIZONA ORGANIZED
LOCAL COOPERATIVE ASSOCIATIONS WHICH JOINED TOGETHER FOR THE PURPOSE OF
COLLECTIVELY MARKETING THEIR FRUIT THROUGH THE AGENCY OF AN AREAWIDE
MARKETING COOPERATIVE AND TWO PROCESSING COOPERATIVES.  RESPONDENTS
SUED PETITIONERS, THE AREAWIDE COOPERATIVE AND ONE OF THE PROCESSING
COOPERATIVES, FOR TREBLE DAMAGES UNDER SEC. 4 OF THE CLAYTON ACT,
CLAIMING THAT THEY HAD CONSPIRED WITH THE OTHER PROCESSING COOPERATIVE
AND TWO PRIVATELY OWNED PROCESSING CORPORATIONS TO RESTRAIN AND
MONOPOLIZE INTERSTATE TRADE IN CITRUS FRUIT AND BY-PRODUCTS AND HAD
ACTUALLY MONOPOLIZED THE SAME, IN VIOLATION OF SECS. 1 AND 2 OF THE
SHERMAN ACT.  HELD:  IN VIEW OF THE EXEMPTION FROM THE ANTITRUST LAWS
ACCORDED IN AGRICULTURAL COOPERATIVES BY SEC. 6 OF THE CLAYTON ACT AND
SEC. 1 OF THE CAPPER-VOLSTEAD ACT, 7 U.S.C. SEC. 291, A JUDGMENT BASED
ON A GENERAL VERDICT AGAINST PETITIONERS, WHICH MAY HAVE RESTED ON A
FINDING OF AN UNLAWFUL CONSPIRACY AMONG THE THREE COOPERATIVES, MUST BE
REVERSED.  PP. 20-30. 

(A)  THE INSTRUCTIONS IN THIS CASE LEFT IT OPEN FOR THE JURY TO BASE
ITS VERDICT ON A FINDING OF A CONSPIRACY AMONG THE MARKETING
COOPERATIVE AND THE TWO PROCESSING COOPERATIVES.  PP. 25-26. 

(B)  ON THE RECORD IN THIS CASE IT CANNOT BE SAID THAT PETITIONERS
WAIVED THEIR OBJECTION TO THESE INSTRUCTIONS.  PP. 26-27. 

(C)  IN VIEW OF THE PROVISIONS OF SEC. 6 OF THE CLAYTON ACT AND SEC.
1 OF THE CAPPER-VOLSTEAD ACT, THE THREE LEGAL ENTITIES FORMED BY THESE
GROWERS FOR THE PURPOSE OF PROCESSING AND MARKETING THEIR AGRICULTURAL
PRODUCTS COOPERATIVELY CANNOT BE CONSIDERED INDEPENDENT PARTIES FOR THE
PURPOSES OF THE CONSPIRACY PROVISIONS OF SECS. 1 AND 2 OF THE SHERMAN
ACT.  PP. 27-29. 

(D)  WHERE ONE OF SEVERAL THEORIES SUBMITTED TO A JURY IS HELD
ERRONEOUS, A GENERAL VERDICT MUST BE REVERSED, AS IT MAY HAVE RESTED ON
THE ERRONEOUS THEORY.  PP. 29-30. 

SUNKIST GROWERS, INC., ET AL., V. WINCKLER & SMITH CITRUS PRODUCTS CO.
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A TREBLE DAMAGE SUIT BROUGHT UNDER SEC. 4 OF THE CLAYTON ACT,
38 STAT. 731, 15 U.S.C. SEC. 15, CHARGING PETITIONERS, SUNKIST GROWERS,
INCORPORATED, AND THE EXCHANGE ORANGE PRODUCTS COMPANY, WITH CONSPIRACY
TO RESTRAIN AND MONOPOLIZE INTERSTATE TRADE AND COMMERCE IN CITRUS
FRUITS AND BY-PRODUCTS AND WITH ACTUAL MONOPOLIZATION THEREOF IN
VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C.
SEC. 1, 2, AS AMENDED.  THE PETITIONERS ARE EACH AGRICULTURAL
COOPERATIVE ORGANIZATIONS, EXCHANGE ORANGE BEING A WHOLLY OWNED
SUBSIDIARY OF SUNKIST.  PETITIONERS CONTEND THE CASE WAS SUBMITTED
UNDER INSTRUCTIONS PERMITTING THE JURY TO FIND AN ILLEGAL CONSPIRACY
AMONG THEM AND EXCHANGE LEMON PRODUCTS COMPANY, A COOPERATIVE
PROCESSING ASSOCIATION OWNED AND OPERATED EXCLUSIVELY BY A NUMBER OF
LEMON-GROWER ASSOCIATIONS ALL OF WHICH ARE MEMBERS OF SUNKIST GROWERS,
INC.  THEY SAY THAT UNDER THE EXEMPTIONS FROM THE ANTITRUST LAWS
GRANTED AGRICULTURAL ASSOCIATIONS BY SEC. 6 OF THE CLAYTON ACT, 38
STAT. 731, 15 U.S.C. SEC. 17, AND SEC. 1 OF THE CAPPER-VOLSTEAD ACT, 42
STAT.  388, 7 U.S.C. SEC. 291, SUNKIST, EXCHANGE ORANGE, AND EXCHANGE
LEMON, BEING MADE UP OF THE SAME GROWERS AND ASSOCIATIONS, CANNOT BE
CHARGED WITH CONSPIRACY AMONG THEMSELVES.  THE TRIAL COURT OVERRULED
THIS CONTENTION, AMONG OTHERS, AND THE JURY RETURNED A VERDICT OF
$500,000.  JUDGMENT FOR TREBLE THIS AMOUNT AND ATTORNEY FEES, LESS SOME
MINOR OFFSETS, WAS ENTERED.  THE COURT OF APPEALS, ACCEPTING
PETITIONERS' VIEW OF THE INSTRUCTIONS, HELD THAT THE EXEMPTION CLAIMED
DID NOT APPLY HERE AND AFFIRMED THE JUDGMENT AS TO LIABILITY BUT
REVERSED AS TO THE AMOUNT OF DAMAGES.  284 F.2D 1.  WE GRANTED
CERTIORARI LIMITED TO THE ISSUE OF THE IMMUNITY OF INTERORGANIZATIONAL
DEALINGS AMONG THE THREE COOPERATIVES FROM THE CONSPIRACY PROVISIONS OF
THE ANTITRUST LAWS.  368 U.S. 813.  WE HAVE CONCLUDED THAT THE CASE WAS
SUBMITTED TO THE JURY ON THE THEORY CLAIMED BY PETITIONERS AND THAT
THIS WAS ERRONEOUS.  THUS WE REVERSE THE JUDGMENT. 

SUNKIST GROWERS, INC., HAS AT ITS BASE 12,000 GROWERS OF CITRUS
FRUITS IN CALIFORNIA AND ARIZONA.  THESE GROWERS ARE ORGANIZED INTO
LOCAL ASSOCIATIONS WHICH OPERATE PACKING HOUSES.  THE ASSOCIATIONS IN
TURN ARE GROUPED INTO DISTRICT EXCHANGES, AND REPRESENTATIVES FROM
THESE EXCHANGES MAKE UP THE GOVERNING BOARD OF SUNKIST, A NONSTOCK
MEMBERSHIP CORPORATION.  SUNKIST SERVES THE MEMBERS AS AN ORGANIZATION
FOR MARKETING THEIR FRESH FRUIT AND FRUIT PRODUCTS (FN1) THROUGH ITS
FIELD, ADVERTISING, SALES, AND TRAFFIC DEPARTMENTS.  ALL OF ITS NET
REVENUES ARE DISTRIBUTED TO THE MEMBERS. 

IN 1915 SEVERAL MEMBER ASSOCIATIONS OF SUNKIST UNDERTOOK TO DEVELOP
BY-PRODUCTS FOR LEMONS IN ORDER TO CREATE A MARKET FOR PRODUCE NOT
SALABLE AS FRESH FRUIT.  BECAUSE THIS WAS A NEW, UNTRIED FIELD THE
ENTIRE COOPERATIVE DID NOT PARTICIPATE.  RATHER A SEPARATE COOPERATIVE
EXCHANGE LEMON, A NONPROFIT STOCK CORPORATION - WAS FORMED FOR THIS
VENTURE BY THE INTERESTED ASSOCIATIONS.  SINCE THAT TIME EXCHANGE LEMON
HAS RETAINED ITS SEPARATE IDENTITY ALTHOUGH IT IS MADE UP EXCLUSIVELY
OF LEMON-GROWER ASSOCIATIONS WHICH ARE ALSO MEMBERS OF SUNKIST.  ITS
FUNCTION NOW IS PRIMARILY ONE OF PROCESSING, AND THE RESULTANT PRODUCTS
ARE MARKETED FOR THE OWNERS BY SUNKIST THROUGH ITS PRODUCTS DEPARTMENT,
WHICH IS JOINTLY MANAGED BY DIRECTORS OF EXCHANGE LEMON AND EXCHANGE
ORANGE. 

ONE YEAR AFTER THE ORGANIZATION OF EXCHANGE LEMON A SIMILAR
ASSOCIATION WAS FORMED TO DEVELOP BY-PRODUCTS FOR ORANGES.  THIS
ORGANIZATION, EXCHANGE ORANGE, WAS COMPRISED OF A NUMBER OF SUNKIST
MEMBER ASSOCIATIONS UNTIL 1931.  AT THAT TIME THE SUNKIST DIRECTORS
DECIDED TO MAKE THE PROCESSING FACILITIES OF EXCHANGE ORANGE AVAILABLE
TO ALL OF ITS MEMBER ASSOCIATIONS BY PURCHASING IT AND OPERATING IT AS
A WHOLLY OWNED SUBSIDIARY. 

IN SUM, THE INDIVIDUAL GROWERS INVOLVED EACH BELONG TO A LOCAL GROWER
ASSOCIATION.  FRUIT WHICH IS TO BE SOLD FRESH IS PACKED BY THE
ASSOCIATIONS AND MARKETED BY SUNKIST, A NONSTOCK MEMBERSHIP CORPORATION
COMPRISED OF DISTRICT EXCHANGES TO WHICH THE ASSOCIATIONS BELONG.  MOST
FRUIT WHICH IS TO BE PROCESSED INTO BY-PRODUCTS IS HANDLED BY EXCHANGE
ORANGE, A SUBSIDIARY OF SUNKIST, OR BY EXCHANGE LEMON, A SEPARATE
ORGANIZATION COMPRISED OF A NUMBER OF SUNKIST MEMBER ASSOCIATIONS. 
(FN2) IT IS THEN MARKETED BY THE PRODUCTS DEPARTMENT OF SUNKIST WHICH
IS MANAGED BY DIRECTORS OF EXCHANGE ORANGE AND EXCHANGE LEMON. 

COMPETING WITH THE THREE COOPERATIVES IN THE CALIFORNIA-ARIZONA AREA
IN THE BUSINESS OF PROCESSING AND SELLING CANNED ORANGE JUICE WERE FOUR
INDEPENDENT PROCESSORS, WHICH WERE PRIMARILY DEPENDENT UPON SUNKIST FOR
THEIR SUPPLY OF BY-PRODUCT ORANGES.  (FN3)  IN 1951 TWO OF THESE
CONCERNS, TREESWEET PRODUCTS COMPANY AND E.A. SILZLE CORPORATION, HAD
PROCESS-AND-PURCHASE CONTRACTS WITH EXCHANGE ORANGE.  UNDER ITS
CONTRACT TREESWEET AGREED TO PROCESS AT COST AN UNDETERMINED AMOUNT OF
ORANGES PROVIDED BY EXCHANGE ORANGE AND TO PURCHASE THE RESULTANT
ORANGE JUICE AT THE THEN CURRENT PRICE OF SUNKIST.  THE AVERAGE NET
PRICE FOR THE ORANGES UNDER THIS CONTRACT WAS ALLEGED TO HAVE BEEN
$25.10 PER TON.  (FN4)  THE CONTRACT WITH SILZLE PROVIDED THAT IT WOULD
PROCESS A STATED AMOUNT OF ORANGES FOR EXCHANGE ORANGE AND PURCHASE THE
JUICE AT A STATED PRICE LESS ITS PROCESSING COST ALLEGED TO HAVE NETTED
$17.66 PER TON.  (FN5)  THE THIRD PRODUCER, CASE-SWAYNE COMPANY,
ALLEGEDLY DECLINED SUNKIST'S OFFER OF A SIMILAR CONTRACT.  RESPONDENT
WINCKLER & SMITH CITRUS PRODUCTS COMPANY, THE FINAL PROCESSOR, WAS
OFFERED ORANGES ONLY AT THE LIST PRICE OF $40 TO $44 PER TON, DEPENDING
UPON CONTENT OF SOLUBLE SOLIDS, AND WAS REFUSED THE PROCESS-AND
PURCHASE ARRANGEMENTS DESCRIBED ABOVE. 

RESPONDENTS BROUGHT THIS SUIT ON THE THEORY THAT SUNKIST AND EXCHANGE
ORANGE CONTROLLED THE SUPPLY OF BY-PRODUCT ORANGES AVAILABLE IN THE
CALIFORNIA-ARIZONA AREA TO INDEPENDENT PROCESSORS; THAT THEY COMBINED
AND CONSPIRED WITH EXCHANGE LEMON, TREESWEET, AND SILZLE TO RESTRAIN
AND TO MONOPOLIZE INTERSTATE TRADE AND COMMERCE IN 1951 IN THE
PROCESSING AND SALE OF CITRUS FRUIT JUICES, PARTICULARLY CANNED ORANGE
JUICE; THAT THEY IN FACT MONOPOLIZED SUCH TRADE AND COMMERCE; AND THAT
THE PURPOSE OR EFFECT THEREOF WAS THE ELIMINATION OF WINCKLER AS A
COMPETITOR IN THE SALE OF SUCH JUICES.  RESPONDENTS RELIED ON SIX
SPECIFIC ACTS AND CONTRACTS WHICH ALLEGEDLY FURTHERED THE CONSPIRACY,
NAMELY:  (1) THE PROCESSING OF ORANGES AT COST BY EXCHANGE LEMON  FOR
EXCHANGE ORANGE DURING 1951; (2) THE PROCESSING OF LEMONS AT COST BY
EXCHANGE ORANGE FOR EXCHANGE LEMON DURING 1951; (3) THE ESTABLISHMENT
BY SUNKIST AND EXCHANGE ORANGE OF A PRICE TO INDEPENDENT PROCESSORS
ALLEGED TO BE TOO HIGH TO ENABLE PURCHASERS TO COMPETE, I.E., THE $40
$44 PER TON LIST PRICE; (4) THE CONTRACT BETWEEN EXCHANGE ORANGE AND
TREESWEET IN 1951; (5) THE CONTRACT BETWEEN EXCHANGE ORANGE AND SILZLE
IN 1951; (6) THE REFUSAL TO SIGN A COMPARABLE CONTRACT WITH RESPONDENT
WINCKLER. 

AFTER A LENGTHY TRIAL PRODUCING A 4,000-PAGE TRANSCRIPT, THE CASE
WENT TO THE JURY UNDER A NECESSARILY COMPLICATED CHARGE.  AS TO THE
PARTIES THE JURY MIGHT FIND TO HAVE PARTICIPATED IN AN ILLEGAL
CONSPIRACY, THE COURT GAVE SEVERAL INSTRUCTIONS.  ONE, GIVEN EARLY IN
THE CHARGE, WAS THAT: 

"A PARENT CORPORATION AND ITS WHOLLY-OWNED SUBSIDIARY CAN BE GUILTY
OF COMBINING OR CONSPIRING TOGETHER TO VIOLATE THE ANTITRUST LAWS.  THE
DEFENDANTS SUNKIST GROWERS, INC., AND ITS WHOLLY-OWNED SUBSIDIARY
EXCHANGE ORANGE PRODUCTS COMPANY, CAN ACCORDINGLY COMBINE OR CONSPIRE
TOGETHER OR WITH OTHERS TO VIOLATE SECTIONS 1 AND 2 OF THE SHERMAN ACT
AS CHARGED IN THE FIRST AND SECOND CAUSES OF ACTION, SUBJECT TO OTHER
INSTRUCTIONS CONCERNING THE CAPPER-VOLSTEAD ACT, AND SECTION 6 OF THE
CLAYTON ACT, AND THE EXEMPTIONS CONTAINED THEREIN." 

THE INSTRUCTIONS ON THE CLAYTON AND CAPPER-VOLSTEAD ACTS MERELY
STATED THAT THE COOPERATIVES COULD LAWFULLY HAVE A MONOPOLY OF THE
FRUIT AND PRODUCTS IN WHICH THEY DEALT.  LATER REFERENCES TO THE
ALLEGED CONSPIRACY OFTEN MENTIONED ONLY PETITIONERS AND THE TWO
INDEPENDENT PROCESSORS, E.G., "IF YOU FIND THAT EITHER OR BOTH OF THE
DEFENDANTS (SUNKIST AND EXCHANGE ORANGE, PETITIONERS HERE) COMBINED
WITH TREESWEET OR SILZLE TO ELIMINATE THE COMPETITION OF THE PLAINTIFF
...  ."  HOWEVER, THE COURT'S CONCLUDING INSTRUCTIONS ON THE SUBJECT
COULD WELL HAVE BEEN TAKEN BY THE JURY AS PERMITTING THEM TO FIND AN
ILLEGAL CONSPIRACY SOLELY AMONG THE THREE COOPERATIVES: 

"UNLESS YOU FIND, THEREFORE, FROM THE PREPONDERANCE OF THE EVIDENCE,
THAT SUNKIST OR EXCHANGE ORANGE OR EITHER OF THEM, COMBINED OR
CONSPIRED WITH EITHER TREESWEET, OR SILZLE, OR ELP (EXCHANGE LEMON
PRODUCTS), AND IN 1951 DID ONE OR MORE OF THE SPECIFIC ACTS CHARGED
...  . 

"  ...  UNLESS YOU FIND FROM THE PREPONDERANCE OF THE EVIDENCE THAT
DEFENDANTS SUNKIST AND EXCHANGE ORANGE, OR EITHER OF THEM, AND ONE OR
MORE OF THE ALLEGED CO-CONSPIRATORS (ONE OF WHICH WAS EXCHANGE LEMON),
COMBINED AND CONSPIRED, AND PURSUANT TO SUCH COMBINATION OR CONSPIRACY
...  . 

"THOSE ARE SUMMARY INSTRUCTIONS WHICH SORT OF SUM UP WHAT IS CHARGED
AND WHAT THE PLAINTIFF MUST PROVE." 

AND IN A FINAL ADDENDUM AFTER CONSULTATION WITH COUNSEL THE COURT
INSTRUCTED THAT: 

"I ALSO AM TOLD THAT I SPOKE ABOUT HOW THE DEFENDANTS HAD CONSPIRED
ON ONE OCCASION.  THE CHARGE IS NOT THAT THE DEFENDANTS CONSPIRED.  THE
CHARGE IS THAT THE DEFENDANTS AND CO-CONSPIRATORS CONSPIRED. 

"HOWEVER, AS A MATTER OF FACT, YOU MAY FIND THAT NOBODY CONSPIRED, OR
YOU MAY PICK OUT AND DECIDE THAT SOME NUMBER LESS THAN THE TOTAL
CONSPIRED." 

ON THE QUESTION NOW BEFORE US, THE COURT OF APPEALS HELD THAT ANY
OBJECTION TO AT LEAST ONE OF THE CONSPIRACY INSTRUCTIONS WAS WAIVED;
THAT IN ANY EVENT DIFFERENT AGRICULTURAL COOPERATIVES COMBINING
TOGETHER ARE NOT ENTITLED TO CLAIM A TOTAL IMMUNITY FOR ACTS WHICH THEY
MIGHT DO UNILATERALLY AND INDIVIDUALLY; AND THAT THE COMMON OWNERSHIP
OF SUNKIST, EXCHANGE ORANGE, AND EXCHANGE LEMON DID NOT PREVENT THE
FINDING OF AN ILLEGAL CONSPIRACY AMONG THEM. 

WE BELIEVE THE INSTRUCTIONS QUITE PLAINLY LEFT IT OPEN FOR THE JURY
TO BASE THEIR VERDICT UPON A FINDING OF A CONSPIRACY AMONG PETITIONERS
AND EXCHANGE LEMON.  (FN6)  AT THE OUTSET THE COURT INSTRUCTED THAT A
CONSPIRACY COULD BE FOUND BETWEEN SUNKIST AND ITS WHOLLY OWNED
SUBSIDIARY EXCHANGE ORANGE.  THEREAFTER THE CHARGE ADVISED THE JURY
THAT A FINDING OF CONSPIRACY BETWEEN "SUNKIST OR EXCHANGE ORANGE OR
EITHER OF THEM  ...  AND EITHER TREESWEET, OR SILZLE, OR ELP" WAS
SUFFICIENT BASIS FOR A JUDGMENT AGAINST PETITIONERS.  FROM THIS IT IS
ENTIRELY PROBABLE THAT THE JURY'S VERDICT AGAINST BOTH PETITIONERS WAS
BASED ON THEIR FINDING OF A CONSPIRACY AMONG SUNKIST, EXCHANGE ORANGE,
AND EXCHANGE LEMON.  THERE IS NO QUESTION THAT EXCHANGE LEMON WAS
IDENTIFIED IN THE COMPLAINT AND THROUGHOUT THE TRIAL AS AN ALLEGED CO
CONSPIRATOR.  IN NO FEWER THAN FIVE INSTANCES DID THE TRIAL COURT REFER
TO THE ALLEGED CONSPIRACY AS BEING AMONG PETITIONERS AND THE "CO
CONSPIRATORS" OR PETITIONERS AND EXCHANGE LEMON, TREESWEET, OR SILZLE. 
THE FINAL SUMMARIZATION ON CONSPIRACY WAS IN TERMS OF FINDING THAT
PETITIONERS COMBINED OR CONSPIRED WITH EITHER TREESWEET OR SILZLE OR
EXCHANGE LEMON, AND THE ADDENDUM INSTRUCTIONS EMPHASIZED THAT THE JURY
COULD FIND EITHER OR BOTH PETITIONERS HAD ILLEGALLY CONSPIRED WITH ANY
ONE OF THE ALLEGED CO-CONSPIRATORS.  IT IS TRUE THAT IN SOME INSTANCES
THE COURT'S CONSPIRACY INSTRUCTIONS MENTIONED ONLY TREESWEET AND SILZE
AS CO-CONSPIRATORS.   CONJECTURE AS TO THE REASONS FOR THIS WOULD NOT
BE FRUITFUL.  FOR IT IS CLEAR THAT THE COURT NEVER LIMITED THE JURY TO
A CONSIDERATION OF THOSE PARTIES AS THE SOLE CO-CONSPIRATORS.  AND
OTHER INSTRUCTIONS, INCLUDING THE SUMMARIZATION, ALLOWED THE JURY TO
BASE THEIR VERDICT UPON A FINDING OF AN ILLEGAL CONSPIRACY SOLELY AMONG
SUNKIST, EXCHANGE ORANGE, AND EXCHANGE LEMON. 

IT IS SUGGESTED BY RESPONDENTS AND THE COURT BELOW THAT PETITIONERS
WAIVED THEIR OBJECTION TO THESE INSTRUCTIONS.  THIS IS BASED ON
PETITIONERS' ACQUIESCENCE IN THE ADDITIONAL INSTRUCTIONS, INCLUDING
REFERENCES TO THE CONSPIRACY, GIVEN THE JURY AFTER THE GENERAL CHARGE. 
BUT PETITIONERS' ACTIONS HERE MUST BE VIEWED IN CONTEXT.  PRIOR TO THE
GENERAL CHARGE, CONFERENCES OF COUNSEL AND THE TRIAL COURT WERE HELD TO
DISCUSS THE INSTRUCTIONS.  AT EACH POINT COUNSEL FOR PETITIONERS
OBJECTED TO INSTRUCTIONS WHICH SUGGESTED THAT THE THREE COOPERATIVES
MIGHT BE FOUND TO HAVE ILLEGALLY CONSPIRED AMONG THEMSELVES AND
REQUESTED INSTRUCTIONS THAT WOULD HAVE LIMITED A FINDING OF AN UNLAWFUL
CONSPIRACY IN THIS CASE TO ONE AMONG PETITIONERS AND TREESWEET OR
SILZLE.  THE TRIAL COURT CONSISTENTLY RULED ADVERSELY TO PETITIONERS ON
THIS POINT.  AFTER THE CHARGE WAS DELIVERED, COUNSEL WERE TOLD THAT ALL
PRIOR OBJECTIONS WOULD BE PRESERVED AND ASKED IF THEY HAD ANY
ADDITIONAL OBJECTIONS.  IN LIGHT OF THIS ASSURANCE AND PETITIONERS'
PRIOR OBJECTIONS AND REQUESTS, WE BELIEVE THE ACQUIESCENCE IN THE ADDED
INSTRUCTIONS COULD NOT BE CONSIDERED A WAIVER.    WE ARE SQUARELY
PRESENTED, THEN, WITH THE QUESTION OF WHETHER SUNKIST, EXCHANGE ORANGE,
AND EXCHANGE LEMON - THE THREE LEGAL ENTITIES FORMED BY THESE 12,000
GROWERS - CAN BE CONSIDERED INDEPENDENT PARTIES FOR THE PURPOSES OF THE
CONSPIRACY PROVISIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT.  WE CONCLUDE
NOT.  SECTION 6 OF THE CLAYTON ACT PROVIDES, INTER ALIA, THAT
AGRICULTURAL ORGANIZATIONS INSTITUTED FOR THE PURPOSES OF MUTUAL HELP
SHALL NOT BE HELD OR CONSTRUED TO BE ILLEGAL COMBINATIONS OR
CONSPIRACIES IN RESTRAINT OF TRADE UNDER THE ANTITRUST LAWS.  (FN7)
THE CAPPER-VOLSTEAD ACT SETS OUT THIS IMMUNITY IN GREATER SPECIFICITY: 

"THAT PERSONS ENGAGED IN THE PRODUCTION OF AGRICULTURAL PRODUCTS AS
FARMERS, PLANTERS, RANCHMEN, DAIRYMEN, NUT OR FRUIT GROWERS MAY ACT
TOGETHER IN ASSOCIATIONS, CORPORATE OR OTHERWISE, WITH OR WITHOUT
CAPITAL STOCK, IN COLLECTIVELY PROCESSING, PREPARING FOR MARKET,
HANDLING, AND MARKETING IN INTERSTATE AND FOREIGN COMMERCE, SUCH
PRODUCTS OF PERSONS SO ENGAGED.  SUCH ASSOCIATIONS MAY HAVE MARKETING
AGENCIES IN COMMON; AND SUCH ASSOCIATIONS AND THEIR MEMBERS MAY MAKE
THE NECESSARY CONTRACTS AND AGREEMENTS TO EFFECT SUCH PURPOSES  ...
."  (FN8) 

THERE CAN BE NO DOUBT THAT UNDER THESE STATUTES THE 12,000 CALIFORNIA
ARIZONA CITRUS GROWERS ULTIMATELY INVOLVED COULD JOIN TOGETHER INTO ONE
ORGANIZATION FOR THE COLLECTIVE PROCESSING AND MARKETING OF THEIR FRUIT
AND FRUIT PRODUCTS WITHOUT THE BUSINESS DECISIONS OF THEIR OFFICERS
BEING HELD COMBINATIONS OR CONSPIRACIES.  THE LANGUAGE OF THE CAPPER
VOLSTEAD ACT IS SPECIFIC IN PERMITTING CONCERTED EFFORTS BY FARMERS IN
THE PROCESSING, PREPARING FOR MARKET, AND MARKETING OF THEIR PRODUCTS. 
AND THE LEGISLATIVE HISTORY OF THE ACT REVEALS SEVERAL REFERENCES TO
THE SUNKIST ORGANIZATION - THEN CALLED THE CALIFORNIA FRUIT GROWERS
EXCHANGE AND NUMBERING 11,000 MEMBERS - INCLUDING A SUGGESTION BY
SENATOR CAPPER THAT THIS WAS THE TYPE OF COOPERATIVE THAT WOULD FIND
"DEFINITE LEGALIZATION" UNDER THE LEGISLATION.  (FN9)  ALTHOUGH WE
CANNOT DRAW FROM THESE REFERENCES A KNOWING APPROVAL OF THE TRIPARTITE
LEGAL ORGANIZATION OF THE 11,000 GROWERS, THEY DO INDICATE THAT A
COOPERATIVE OF SUCH SIZE AND GENERAL ACTIVITIES WAS CONTEMPLATED BY THE
ACT. 

INSTEAD OF A SINGLE COOPERATIVE, THESE GROWERS THROUGH LOCAL
ASSOCIATIONS FIRST FORMED ONE AREA-WIDE ORGANIZATION (SUNKIST) FOR
MARKETING PURPOSES.  WHEN IT WAS DECIDED TO PERFORM RESEARCH AND
PROCESSING ON A JOINT BASIS, SEPARATE ORGANIZATIONS WERE FORMED BY THE
INTERESTED ASSOCIATIONS FOR REASONS OUTLINED ABOVE.  AT A LATER DATE
ONE OF THESE (EXCHANGE ORANGE) WAS ACQUIRED BY THE SUNKIST ORGANIZATION
AND IS PRESENTLY HELD AS A SUBSIDIARY.  THE OTHER (EXCHANGE LEMON) IS
STILL OWNED BY THE LEMON-GROWER ASSOCIATIONS, ALL OF WHOM ARE ALSO
MEMBER ASSOCIATIONS OF SUNKIST.  WITH DUE RESPECT TO THE CONTRARY
OPINIONS OF THE COURT OF APPEALS AND DISTRICT COURT, WE FEEL THAT THE
12,000 GROWERS HERE INVOLVED ARE IN PRACTICAL EFFECT AND IN THE
CONTEMPLATION OF THE STATUTES ONE "ORGANIZATION" OR "ASSOCIATION" EVEN
THOUGH THEY HAVE FORMALLY ORGANIZED THEMSELVES INTO THREE SEPARATE
LEGAL ENTITIES.  TO HOLD OTHERWISE WOULD BE TO IMPOSE GRAVE LEGAL
CONSEQUENCES UPON ORGANIZATIONAL DISTINCTIONS THAT ARE OF DE MINIMIS
MEANING AND EFFECT TO THESE GROWERS WHO HAVE BANDED TOGETHER FOR
PROCESSING AND MARKETING PURPOSES WITHIN THE PURVIEW OF THE CLAYTON AND
CAPPER-VOLSTEAD ACTS.  THERE IS NO INDICATION THAT THE USE OF SEPARATE
CORPORATIONS HAD ECONOMIC SIGNIFICANCE IN ITSELF OR THAT OUTSIDERS
CONSIDERED AND DEALT WITH THE THREE ENTITIES AS INDEPENDENT
ORGANIZATIONS.  THAT THE PACKING IS DONE BY LOCAL ASSOCIATIONS, THE
ADVERTISING, SALES, AND TRAFFIC BY DIVISIONS OF THE AREA ASSOCIATION,
AND THE PROCESSING BY SEPARATE ORGANIZATIONS DOES NOT IN OUR OPINION
PRECLUDE THESE GROWERS FROM BEING CONSIDERED ONE ORGANIZATION OR
ASSOCIATION FOR PURPOSES OF THE CLAYTON AND CAPPER-VOLSTEAD ACTS. 

SINCE WE HOLD ERRONEOUS ONE THEORY OF LIABILITY UPON WHICH THE
GENERAL VERDICT MAY HAVE RESTED - A CONSPIRACY AMONG PETITIONERS AND
EXCHANGE LEMON - IT IS UNNECESSARY FOR US TO EXPLORE THE LEGALITY OF
THE OTHER THEORIES.  AS WAS STATED OF A GENERAL VERDICT IN MARYLAND V.
BALDWIN, 112 U.S. 490, 493 (1884), "ITS GENERALITY PREVENTS US FROM
PERCEIVING UPON WHICH PLEA THEY FOUND.  IF, THEREFORE, UPON ANY ONE
ISSUE ERROR WAS COMMITTED, EITHER IN THE ADMISSION OF EVIDENCE, OR IN
THE CHARGE OF THE COURT, THE VERDICT CANNOT BE UPHELD  ...  ."  SUFFICE
IT TO SAY THAT OUR DECISION IN NO WAY DETRACTS FROM EARLIER CASES
HOLDING AGRICULTURAL COOPERATIVES LIABLE FOR CONSPIRACIES WITH OUTSIDE
GROUPS, UNITED STATES V. BORDEN CO., 308 U.S. 188 (1939), AND FOR
MONOPOLIZATION, MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V. UNITED
STATES, 362 U.S. 458 (1960).  REVERSED AND REMANDED. 

FN1  THESE INCLUDE JUICES, CONCENTRATES, OIL, PECTIN,
PHARMACEUTICALS, AND CATTLE FEED. 

FN2  SOME BY-PRODUCT FRUIT IS SOLD TO OR PROCESSED BY INDEPENDENT
PROCESSORS. 

FN3  SUNKIST ALSO SOLD BY-PRODUCT ORANGES TO ADDITIONAL COMPANIES FOR
PROCESSING INTO BY-PRODUCTS OTHER THAN CANNED ORANGE JUICE. 

FN4  THE SOLUBLE SOLIDS CONTENT OF THE ORANGES PROCESSED BY TREESWEET
UNDER THIS CONTRACT AVERAGED 131.6 POUNDS PER TON. 

FN5  THE SOLUBLE SOLIDS CONTENT OF THESE ORANGES AVERAGED 120 POUNDS
PER TON. 

FN6  IT COULD BE ARGUED THAT THE INSTRUCTIONS ALSO PERMITTED THE JURY
TO FIND AN ILLEGAL CONSPIRACY SOLELY BETWEEN PETITIONERS.  OUR HOLDING
RENDERS UNNECESSARY AN EVALUATION OF THIS INTERPRETATION OF THE
CHARGE. 

FN7  SEC. 6.  THAT THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR
ARTICLE OF COMMERCE.  NOTHING CONTAINED IN THE ANTITRUST LAWS SHALL BE
CONSTRUED TO FORBID THE EXISTENCE AND OPERATION OF LABOR, AGRICULTURAL,
OR HORTICULTURAL ORGANIZATIONS, INSTITUTED FOR THE PURPOSES OF MUTUAL
HELP, AND NOT HAVING CAPITAL STOCK OR CONDUCTED FOR PROFIT, OR TO
FORBID OR RESTRAIN INDIVIDUAL MEMBERS OF SUCH ORGANIZATIONS FROM
LAWFULLY CARRYING OUT THE LEGITIMATE OBJECTS THEREOF; NOR SHALL SUCH
ORGANIZATIONS, OR THE MEMBERS THEREOF, BE HELD OR CONSTRUED TO BE
ILLEGAL COMBINATIONS OR CONSPIRACIES IN RESTRAINT OF TRADE, UNDER THE
ANTITRUST LAWS." 

FN8  THE ACT HAS CERTAIN ORGANIZATIONAL REQUISITES WHICH ARE NOT IN
ISSUE HERE. 

FN9  61 CONG. REC. 1036 (1921)(REMARKS OF REPRESENTATIVE BLACK); 62
CONG. REC. 2052 (1922)(SENATOR KELLOGG); 62 CONG. REC. 2061
(1922)(SENATOR CAPPER); 62 CONG. REC. 2277 (1922) (SENATOR WALSH). 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















SALEM V. UNITED STATES LINES CO. 370 U.S. 31 


NO. 283.  ARGUED MARCH 19, 1962.  - DECIDED MAY 28, 1962.  - 293 F.2D
121, AFFIRMED IN PART AND REVERSED IN PART. 


1.  IN THIS SUIT UNDER THE JONES ACT BASED ON UNSEAWORTHINESS AND
NEGLIGENCE, SEEKING DAMAGES FOR PERSONAL INJURIES SUSTAINED BY A SEAMAN
WHO FELL AS HE WENT TO HIS POST IN THE CROW'S NEST, HELD: IT WAS ERROR
FOR THE COURT OF APPEALS TO ORDER A NEW TRIAL ON THE GROUND THAT A JURY
COULD NOT DETERMINE, IN THE ABSENCE OF SUPPORTING TESTIMONY BY AN
EXPERT IN NAVAL ARCHITECTURE, A CLAIM THAT THE SHIPOWNER HAD FAILED TO
EQUIP THE SHIP WITH NECESSARY AND FEASIBLE SAFETY DEVICES TO PREVENT
SUCH A MISHAP.  PP. 31-37. 

2.  THE EVIDENCE IN THIS RECORD PROVIDES NO SUPPORT FOR THE TRIAL
COURT'S AWARD TO THE SEAMAN OF FUTURE MAINTENANCE FOR THREE YEARS.  PP.
37-38. 

SALEM V. UNITED STATES LINES CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE FIRST QUESTION TO BE DECIDED IN THIS SEAMAN'S PERSONAL INJURY
SUIT FOR DAMAGES ON THE GROUNDS OF UNSEAWORTHINESS AND NEGLIGENCE UNDER
THE JONES ACT (FN1) IS WHETHER THE JURY SHOULD HAVE BEEN ALLOWED TO
DETERMINE, IN THE ABSENCE OF SUPPORTING TESTIMONY BY AN EXPERT IN NAVAL
ARCHITECTURE, A CLAIM THAT THE SHIPOWNER FAILED TO EQUIP HIS SHIP WITH
NECESSARY AND FEASIBLE SAFETY DEVICES TO PREVENT THE MISHAP WHICH
BEFELL THE SEAMAN. 

THE TRIAL JUDGE SUBMITTED FOR THE JURY'S DETERMINATION VARIOUS BASES
OF RESPONDENT'S ALLEGED LIABILITY, INCLUDING THE CLAIM RESTING ON THE
FAILURE TO PROVIDE CERTAIN SAFETY DEVICES.  BECAUSE THE JURY RETURNED A
GENERAL VERDICT FOR THE SEAMAN, IT CANNOT BE SAID WHAT BASIS OF
LIABILITY THE JURY FOUND TO EXIST.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT, JUDGE SMITH DISSENTING, REVERSED AND REMANDED FOR A NEW TRIAL,
HOLDING THAT IN THE ABSENCE OF EXPERT EVIDENCE, IT WAS ERROR TO HAVE
ALLOWED THE JURY TO CONSIDER THE FAILURE TO PROVIDE SAFETY DEVICES. 
293 F.2D 121, 123-124.  SINCE THE QUESTION WHETHER SUPPORTING EXPERT
TESTIMONY IS NEEDED IS IMPORTANT IN LITIGATION OF THIS TYPE, WE GRANTED
CERTIORARI.  368 U.S. 811.  WE HOLD THAT THE COURT OF APPEALS ERRED. 

PETITIONER WAS A LOOKOUT ON THE S.S. UNITED STATES.  HE WAS INJURED
AS HE MOVED FROM A LADDER TO A PLATFORM LEADING TO HIS POST IN THE
CROW'S-NEST.  THE CROW'S-NEST WAS HOUSED IN A "BUBBLE" HALF WAY UP A
HOLLOW ALUMINUM RADAR TOWER WHICH ROSE 65 FEET FROM THE BRIDGE DECK. 
THE LADDER EXTENDED THE FULL HEIGHT OF THE TOWER ALONG THE INSIDE OF
ITS AFTER SIDE.  AT VARIOUS LEVELS INSIDE THE TOWER WERE HORIZONTAL
PLATFORMS, AT THE AFTER ENDS OF WHICH WERE ACCESS OPENINGS SLIGHTLY
LARGER THAN MANHOLES, THROUGH WHICH THE LADDER PASSED STRAIGHT UP.  THE
TOWER WAS MORE THAN SIX FEET FROM FORE TO AFT AT THE CROW'S-NEST LEVEL,
AND TAPERED FROM FOUR TO THREE FEET IN WIDTH.  THERE WAS ONLY A NARROW
LEDGE AROUND THREE-QUARTERS OF THE OPENING IN THE PLATFORM AT THAT
LEVEL; THE PLATFORM PROPER WAS TOWARD THE BOW, AND LED TO THE DOOR IN
THE CROW'S-NEST.  AS A SEAMAN CLIMBED THE LADDER TO THE CROW'S-NEST, HE
FACED ASTERN UNTIL HIS FEET WERE APPROXIMATELY LEVEL WITH THE
PLATFORM.  TO GET FROM THE LADDER TO THE PLATFORM PROPER, HE HAD TO
PIVOT, PUTTING ONE FOOT ON THE STARBOARD OR PORT LEDGE, FOLLOW IT WITH
THE OTHER FOOT, COMPLETE HIS PIVOT AND STEP FORWARD ALONG THE LEDGE TO
THE PLATFORM PROPER.  ALTHOUGH THE RESPONDENT DESCRIBES THE CROW'S-NEST
AND ITS APPROACH AS "PURPOSELY CONSTRUCTED SO AS TO PROVIDE MAXIMUM
PROTECTION AND SAFETY FOR MEMBERS OF THE CREW HAVING TO USE IT," THERE
WERE NO DEVICES INTENDED TO FACILITATE SAFE MANEUVERING FROM LADDER TO
PLATFORM; FOR SUPPORT DURING THIS MANEUVER, THE SEAMAN COULD GRASP ONE
OF THE THIN VERTICAL BEAMS LOCATED AT INTERVALS ALONG THE PORT AND
STARBOARD SIDES, OR A VERTICAL, BULKY RECTANGULAR PIPE ENCLOSING A
RADAR CABLE AND NEAR THE STARBOARD SIDE, OR A HORIZONTAL STIFFENER OR
LEDGING THAT RAN AT SHOULDER-HEIGHT AROUND THE TOWER.  RESPONDENT
ARGUES THAT THE SEAMAN ALSO COULD SIMPLY SPREAD HIS ARMS TO BRACE
HIMSELF AGAINST THE SIDES OF THE TOWER. 

ON THE NIGHT OF FEBRUARY 15-16, 1958, AS THE UNITED STATES WENT AT
HIGH SPEED AND ROLLED IN ROUGH SEAS, THE TOWER WAS PLUNGED INTO
DARKNESS, JUST AS THE PETITIONER WAS EXECUTING THE MOVEMENT TO THE
CROW'S-NEST PLATFORM FROM THE LADDER.  ILLUMINATION WITHIN THE TOWER
WAS PROVIDED BY FIVE ELECTRIC LIGHTS AT VARIOUS LEVELS, BUT THESE
BURNED OUT FREQUENTLY.  TWO HAD BEEN OUT FOR A LONG PERIOD AND TWO
OTHERS HAD GONE OUT A FEW HOURS BEFORE THE ACCIDENT, LEAVING AS THE
ONLY LIGHT THAT WHICH WAS AT THE CROW'S-NEST PLATFORM.  AT SOME POINT
AFTER PETITIONER HAD BEGUN THE MANEUVER FROM LADDER TO PLATFORM, BUT
BEFORE HE REACHED A PLACE ON THE PLATFORM PROPER AND AWAY FROM THE
ACCESS OPENING, THAT LAST LIGHT WENT OUT.  AN INSTANT LATER PETITIONER
FELL BACKWARDS ACROSS THE OPENING AND STRUCK HIS HEAD AGAINST THE
LADDER AND HIS LOWER BACK AGAINST THE FORE EDGE OF THE OPENING, LEAVING
HIS BODY SUSPENDED IN THE OPENING.  HE GRASPED THE LADDER RUNGS AND
CALLED FOR HELP FROM THE LOOKOUT ON DUTY IN THE CROW'S-NEST.  WITH THE
LOOKOUT'S AID HE WAS ABLE TO SEAT HIMSELF ON THE STARBOARD LEDGE WITH
HIS LEGS HANGING DOWN THROUGH THE OPENING AND HIS RIGHT ARM AROUND THE
CABLE PIPE.  THE LOOKOUT RETURNED TO THE CROW'S-NEST TO PHONE THE
BRIDGE FOR HELP.  IN HIS ABSENCE THE PETITIONER BECAME DIZZY AND FELL
THROUGH THE OPENING TO A PLACE EIGHT FEET BELOW THE PLATFORM. 

THE ONLY ISSUE BEFORE US ON THIS PHASE OF THE CASE IS WHETHER THE
TRIAL JUDGE ERRED IN INSTRUCTING THE JURY THAT THEY MIGHT FIND THE
RESPONDENT LIABLE FOR UNSEAWORTHINESS OR NEGLIGENCE FOR HAVING FAILED
TO PROVIDE "RAILINGS OR OTHER SAFETY DEVICES" AT THE CROW'S-NEST
PLATFORM.  THE COURT OF APPEALS HELD THAT IT WAS ERROR TO SUBMIT THAT
QUESTION TO THE JURY BECAUSE "THERE WAS NO EXPERT TESTIMONY THAT PROPER
MARINE ARCHITECTURE REQUIRED THE ADDITIONAL PROVISION OF RAILINGS OR
OTHER SAFETY DEVICES ON SUCH A LADDER OR PLATFORM ENCLOSED WITHIN A
TOWER LEADING TO A CROW'S NEST.  SHOULD THE JURY, UNDER THESE
CONDITIONS, HAVE BEEN PERMITTED TO DECIDE WHETHER PROPER MARINE
ARCHITECTURE REQUIRED RAILINGS OR OTHER SAFETY DEVICES?  IN TWO RECENT
CASES, THIS COURT HAS HELD THAT A JURY SHOULD NOT BE PERMITTED TO
SPECULATE ON SUCH MATTERS IN THE ABSENCE OF EXPERT EVIDENCE."   (FN2)
293 F.2D, AT 123.  THERE WAS EVIDENCE, IN THE FORM OF TESTIMONY AND
PHOTOGRAPHS, FROM WHICH THE JURY MIGHT CLEARLY SEE THE CONSTRUCTION AT
THE CROW'S-NEST LEVEL WHICH WE HAVE DESCRIBED.  IF THE HOLDING OF THE
COURT OF APPEALS IS ONLY THAT IN THIS CASE THERE ARE PECULIAR FACT
CIRCUMSTANCES WHICH MADE IT IMPOSSIBLE FOR A JURY TO DECIDE
INTELLIGENTLY, WE ARE NOT TOLD WHAT THOSE CIRCUMSTANCES ARE, AND OUR
EXAMINATION OF THE RECORD DISCLOSES NONE.  (FN3)  IF THE HOLDING IS
THAT CLAIMS WHICH MIGHT BE SAID TO TOUCH UPON NAVAL ARCHITECTURE CAN
NEVER SUCCEED WITHOUT EXPERT EVIDENCE, NEITHER THE COURT OF APPEALS NOR
THE RESPONDENT REFERS US TO AUTHORITY OR REASON FOR ANY SUCH BROAD
PROPOSITION. 

THIS IS NOT ONE OF THE RARE CAUSES OF ACTION IN WHICH THE LAW
PREDICATES RECOVERY UPON EXPERT TESTIMONY.  SEE WIGMORE, EVIDENCE (3D
ED. 1940), SECS. 2090, 2090A.  RATHER, THE GENERAL RULE IS AS STATED BY
MR. JUSTICE VAN DEVANTER, WHEN CIRCUIT JUDGE, THAT EXPERT TESTIMONY NOT
ONLY IS UNNECESSARY BUT INDEED MAY PROPERLY BE EXCLUDED IN THE
DISCRETION OF THE TRIAL JUDGE "IF ALL THE PRIMARY FACTS CAN BE
ACCURATELY AND INTELLIGIBLY DESCRIBED TO THE JURY, AND IF THEY, AS MEN
OF COMMON UNDERSTANDING, ARE AS CAPABLE OF COMPREHENDING THE PRIMARY
FACTS AND OF DRAWING CORRECT CONCLUSIONS FROM THEM AS ARE WITNESSES
POSSESSED OF SPECIAL OR PECULIAR TRAINING, EXPERIENCE, OR OBSERVATION
IN RESPECT OF THE SUBJECT UNDER INVESTIGATION  ...  ."  UNITED STATES
SMELTING CO. V. PARRY, 166 F. 407, 411, 415.  FURTHERMORE, THE TRIAL
JUDGE HAS BROAD DISCRETION IN THE MATTER OF THE ADMISSION OR EXCLUSION
OF EXPERT EVIDENCE, AND HIS ACTION IS TO BE SUSTAINED UNLESS MANIFESTLY
ERRONEOUS.  SPRING CO. V. EDGAR, 99 U.S. 645, 658. 

THIS COURT HAS HELD, IN A FACTUAL CONTEXT SIMILAR TO THIS, THAT THERE
WAS NO ERROR, LET ALONE MANIFEST ERROR, IN HAVING A JURY DECIDE WITHOUT
THE AID OF EXPERTS.  SPOKANE & INLAND EMPIRE R. CO. V. UNITED STATES,
241 U.S. 344, WAS AN ACTION BY THE UNITED STATES TO RECOVER PENALTIES
FOR VIOLATION OF THE SAFETY APPLIANCE ACT PROVISION REQUIRING HANDHOLDS
OR GRAB-IRONS TO BE PLACED ON THE ENDS OF RAILROAD CARS USED IN
INTERSTATE COMMERCE.  (FN4)  THE DEFENDANT RAILROAD OFFERED EXPERT
TESTIMONY TO ESTABLISH THAT THE SUBSTITUTES PROVIDED ON ITS CARS WOULD
ACCOMPLISH THE STATUTE'S PURPOSES.  THE JURY HAD INSPECTED THE CARS,
AND THE EXPERT EVIDENCE WAS EXCLUDED WHEN THE UNITED STATES OBJECTED
THAT THIS "WAS A MATTER OF COMMON KNOWLEDGE."  WE HELD THAT "THE COURT
WAS CLEARLY RIGHT IN HOLDING THAT THE QUESTION WAS NOT ONE FOR EXPERTS
AND THAT THE JURY AFTER HEARING THE TESTIMONY AND INSPECTING THE CARS
WERE COMPETENT TO DETERMINE THE ISSUE  ...  ."  241 U.S., AT 351. 
(FN5) 

IN SUM, WE AGREE WITH JUDGE SMITH IN DISSENT BELOW: 

"THERE WAS BEFORE THE JURY SUFFICIENT EVIDENCE, BOTH FROM ORAL
TESTIMONY AND FROM PHOTOGRAPHS, FOR IT TO VISUALIZE THE PLATFORM ON AND
FROM WHICH PLAINTIFF FELL AND TO DETERMINE WHETHER SOME RAILING OR HAND
HOLD IN ADDITION TO THE STRUCTURES PRESENT WAS REASONABLY NECESSARY FOR
THE PROTECTION OF A SEAMAN PASSING FROM THE LADDER TO THE PLATFORM IN
THE SWAYING MAST. 

"  ...  (THERE IS NO) BLANKET PROPOSITION THAT ANY AND ALL THEORIES
OF NEGLIGENCE AND/OR UNSEAWORTHINESS WHICH MIGHT TOUCH ON THE BROAD
FIELD OF 'NAVAL ARCHITECTURE' MAY BE PROPERLY SUBMITTED TO A JURY ONLY
IF SUPPORTED BY EXPERT TESTIMONY.  HERE THE POTENTIAL DANGER WAS FAIRLY
OBVIOUS AND A JURY SHOULD BE PERFECTLY COMPETENT TO DECIDE WHETHER THE
HANDHOLDS FURNISHED WERE SUFFICIENT TO DISCHARGE THE OWNER'S DUTY TO
PROVIDE HIS SEAMEN WITH A SAFE PLACE TO WORK.  SUCH A DETERMINATION
HARDLY REQUIRES EXPERT KNOWLEDGE OF NAVAL ARCHITECTURE  ...  ."  293
F.2D, AT 126. 

INDEED, "IF THERE WAS A REASON HIDDEN FROM THE ORDINARY MIND WHY THIS
CONDITION OF THINGS MUST HAVE EXISTED, THOSE FACTS CALLED UPON THE
DEFENDANT TO MAKE THAT REASON KNOWN."  MISSOURI, K.&T.R. CO. V.
WILLIAMS, 103 TEX. 228, 231, 125 S.W. 881, 882; AND SEE POIGNANT V.
UNITED STATES, 225 F.2D 595, 602 (CONCURRING OPINION).  (FN6) 

THERE IS ANOTHER QUESTION TO BE DECIDED.  THE PETITIONER ALSO SOUGHT
MAINTENANCE AND CURE.  THE TRIAL JUDGE AWARDED PAST MAINTENANCE, WHICH
THE RESPONDENT HAS NOT DISPUTED, AND ALSO FUTURE MAINTENANCE FOR THREE
YEARS.  THE COURT OF APPEALS SET ASIDE THE AWARD OF FUTURE MAINTENANCE,
SAYING:  "THERE DOES NOT APPEAR TO BE ANY SUFFICIENT BASIS, BY OPINION
EVIDENCE OR OTHERWISE, FOR THE FINDING THAT THREE YEARS IS THE PERIOD
REASONABLY TO BE EXPECTED FOR SALEM TO REACH MAXIMUM IMPROVEMENT."  293
F.2D, AT 125.  THE TRIAL JUDGE MADE NO FINDINGS.  WE HAVE THEREFORE
EXAMINED THE EVIDENCE ON THE QUESTION IN THE LIGHT OF WHAT WAS SAID IN
CALMAR S.S. CORP. V. TAYLOR, 303 U.S. 525, 531-532:  "  ...  AMOUNTS
(FOR FUTURE MAINTENANCE SHOULD BE SUCH) AS MAY BE NEEDFUL IN THE
IMMEDIATE FUTURE FOR THE MAINTENANCE AND CURE OF A KIND AND FOR A
PERIOD WHICH CAN BE DEFINITELY ASCERTAINED."  WE AGREE THAT THE
EVIDENCE PROVIDES NO SUPPORT UNDER THAT TEST FOR THE AWARD OF THREE
YEARS' FUTURE MAINTENANCE. 

WE AFFIRM AS RESPECTS MAINTENANCE BUT OTHERWISE REVERSE THE JUDGMENT
OF THE COURT OF APPEALS.  SINCE OTHER GROUNDS OF REVERSAL URGED BY THE
RESPONDENT WERE NOT REACHED BY THAT COURT, THE CASE IS REMANDED TO IT
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  41 STAT. 1007, 46 U.S.C. SEC. 688. 

FN2  THE MAJORITY QUOTED FROM MARTIN V. UNITED FRUIT CO., 272 F.2D
347, AS FOLLOWS: "'FINALLY, WE REJECT THE PLAINTIFF'S CONTENTION THAT
THE TRIAL COURT COMMITTED ERROR IN NOT PERMITTING THE JURY TO DETERMINE
WHETHER THE PLACEMENT OF THE HINGE AT THE BOTTOM OF THE DEADLIGHT WAS
AN IMPROPER METHOD OF SHIP CONSTRUCTION SO AS TO MAKE THE VESSEL
UNSEAWORTHY.  SURELY THIS IS A TECHNICAL MATTER IN WHICH AN EXPERT
KNOWLEDGE OF NAUTICAL ARCHITECTURE IS REQUIRED IN ORDER TO FORM AN
INTELLIGENT JUDGMENT.  SINCE NO EXPERT TESTIMONY WAS INTRODUCED, IT WAS
CORRECT TO EXCLUDE THIS MATTER FROM THE JURY'S CONSIDERATION.'"  293
F.2D, AT 123.  THE MAJORITY ALSO QUOTED FROM FATOVIC V. NEDERLANDSCH
AMERIDAANSCHE STOOMVAART, MAATSCHAPPIJ, 275 F.2D 188, IN WHICH THE
QUESTION WAS WHETHER A STOPPING ARRANGEMENT COULD FEASIBLY BE MADE PART
OF A TON-AND-A-HALF BOOM TO KEEP IT FROM SWINGING FREELY:  "'IN ANY
EVENT, THE QUESTION WAS ONE OF NAUTICAL ARCHITECTURE ABOUT WHICH JURORS
LACK THE KNOWLEDGE TO FORM AN INTELLIGENT JUDGMENT IN THE ABSENCE OF
EXPERT TESTIMONY.  MARTIN  ...  .  SINCE THERE WAS NO EXPERT TESTIMONY
ON THE MATTER, IT SHOULD NOT HAVE BEEN SUBMITTED TO THE JURY.'"  293
F.2D, AT 123-124.  WHATEVER MAY HAVE REQUIRED THAT THE JURY HAVE THE
AID OF EXPERT TESTIMONY IN THOSE CASES, NO SHOWING IS MADE OF THE
NECESSITY HERE. 

FN3  COMPARE TEXAS & PACIFIC R. CO. V. WATSON, 190 U.S. 287, 290, IN
WHICH THERE MAY HAVE BEEN PECULIAR DIFFICULTIES IMPEDING INSTALLATION
OF ANY TRULY EFFECTIVE SAFETY DEVICE. 

FN4  27 STAT. 531, 45 U.S.C. SEC. 4. 

FN5  ALTHOUGH IT WAS LATER HELD THAT THE SAFETY APPLIANCE ACT HAS NO
ROOM FOR THE DOCTRINE OF EQUIVALENT, SUBSTITUTE DEVICES, ST. JOSEPH &
GRAND ISLAND R. CO. V. MOORE, 243 U.S. 311, THE AUTHORITY OF SPOKANE ON
JURY COMPETENCE IS UNIMPAIRED. 

FN6  THE VALUE OF AN EXPERT'S TESTIMONY TO EXPLAIN WHAT THE BEST
SAFETY DEVICE MIGHT BE IS CLEAR, BUT THE QUESTION HERE IS SIMPLY
WHETHER SOME SUCH DEVICE SHOULD HAVE BEEN PROVIDED.  ZINNEL V. UNITED
STATES SHIPPING BOARD EMERGENCY FLEET CORP., 10 F.2D 47, 48.  NOR WOULD
EXPERT TESTIMONY ABOUT CUSTOMARY EQUIPPAGE BE ESSENTIAL, PURE OIL CO.
V. SNIPES, 293 F.2D 60, 71; NOR, EVEN IF OFFERED, WOULD IT HAVE
CONCLUDED THE QUESTIONS OF UNSEAWORTHINESS OR NEGLIGENCE.  WABASH R.
CO. V. MCDANIELS, 107 U.S. 454, 460-461; GRAND TRUNK R. CO. V.
RICHARDSON, 91 U.S. 454, 469-470; THE T.J. HOOPER, 60 F.2D 737; KENNAIR
V. MISSISSIPPI SHIPPING CO., 197 F.2D 605; JUNE T., INC., V. KING, 290
F.2D 404.    ALTHOUGH THE LAW FAVORS THE AID OF EXPERTS IF THE PROBLEM
IS NOT ONE "UPON WHICH THE LAY OR UNEDUCATED MIND IS CAPABLE OF FORMING
A JUDGMENT," MILWAUKEE & ST. P.R. CO. V. KELLOGG, 94 U.S. 469, 472, IF
THE MATTER IS ONLY ARGUABLY BEYOND COMMON EXPERIENCE, EXPERT TESTIMONY
WILL BE ADMITTED WITH CARE.  THE RULE REFLECTS THE CONSIDERATION OF
AVOIDANCE OF UNNECESSARILY PROLONGED TRIALS AND ATTENDANT EXPENSE AND
CONFUSION.  WINANS V. NEW YORK & ERIE R. CO., 21 HOW.  88, 100-101; AND
SEE THORN V. WORTHING SKATING RINK CO. (1876), REPORTED IN PLIMPTON V.
SPILLER, 6 CH. D. 412, FOOTNOTE AT 415-418 (1877). 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, DISSENTING IN PART AND CONCURRING IN PART. 

I DO NOT READ THE COURT OF APPEALS' OPINION EITHER AS HOLDING THAT,
BECAUSE OF "PECULIAR FACT CIRCUMSTANCES" PETITIONER'S CLAIMS RESPECTING
THE ALLEGED FAULTY CONSTRUCTION OF THE RADAR TOWER REQUIRED "SUPPORTING
EXPERT TESTIMONY" (ANTE, PP. 35, 32), OR AS ESTABLISHING A GENERAL
PROPOSITION THAT SUCH TESTIMONY IS NEEDED IN EVERY INSTANCE WHERE A
SEAMAN CLAIMS TO HAVE BEEN INJURED BECAUSE OF HIS EMPLOYER'S FAILURE TO
EQUIP A SHIP WITH SAFETY DEVICES. 

TAKING ITS OPINION IN LIGHT OF THE RECORD, I THINK IT APPARENT THAT
THE COURT OF APPEALS HELD NO MORE THAN THAT REVERSAL WAS REQUIRED
BECAUSE "THERE WAS NO EVIDENCE OF ANY KIND IN THE RECORD TO SUPPORT THE
VIEW THAT RAILINGS OR OTHER SAFETY DEVICES COULD FEASIBLY BE
CONSTRUCTED, OR THAT FAILURE TO PROVIDE THEM CONSTITUTED NEGLIGENCE OR
MADE THE SHIP UNSEAWORTHY."  293 F.2D, AT 123.  TO ME IT SEEMS CLEAR
THAT THE COURT REFERRED TO EXPERT TESTIMONY SIMPLY AS AN EXAMPLE OF THE
KIND OF EVIDENCE THAT THE PETITIONER MIGHT HAVE OFFERED ON THIS SCORE. 
CONSEQUENTLY, THE DISTRICT COURT'S CHARGE THAT THE JURY COULD FIND THE
RESPONDENT NEGLIGENT "IN FAILING TO PROVIDE RAILINGS OR OTHER SAFETY
DEVICES" HAD INJECTED INTO THE CASE A THEORY OF LIABILITY WHICH HAD NOT
BEEN PRESENTED TO THE JURY BY THE EVIDENCE INTRODUCED AT THE TRIAL. 
THIS HAS UNIFORMLY BEEN HELD TO CONSTITUTE REVERSIBLE ERROR.  E.G.,
MANDEL V. PENNSYLVANIA R. CO., 291 F.2D 433; SMITH V. ELLERMAN LINES,
LTD., 247 F.2D 761, 766; SEE WILMINGTON STAR MINING CO. V. FULTON, 205
U.S. 60, 78-79. 

THE TRIAL TRANSCRIPT, INSOFAR AS IT HAS BEEN REPRODUCED IN THE RECORD
BEFORE THIS COURT, BEARS OUT THE CONCLUSION OF THE COURT OF APPEALS
THAT EVIDENCE WITH RESPECT TO THE ALLEGED FAILURE TO MAINTAIN
APPROPRIATE SAFETY DEVICES WAS ENTIRELY LACKING.  PETITIONER'S
EVIDENCE, APART FROM MEDICAL TESTIMONY CONCERNING THE EXTENT OF HIS
INJURIES, RELATED ALMOST ENTIRELY TO THE ALLEGED SLIPPERY CONDITION OF
THE PLATFORM LEADING TO THE CROW'S-NEST, THE INADEQUATE AND DEFECTIVE
LIGHTING, AND THE NEGLIGENCE OF THE LOOKOUT.  PETITIONER HIMSELF DID
TESTIFY THAT THERE WAS NO "GRIP" OR "HANDRAILS" AT THE CROW'S-NEST
LEVEL, AND PHOTOGRAPHS THAT WERE INTRODUCED INTO EVIDENCE CONFIRMED
THIS UNDISPUTED ASSERTION. 

WITH NOTHING MORE BEFORE THE JURY THAN THIS, THE TRIAL COURT'S
INSTRUCTION CERTAINLY LEFT THE JURY ENTIRELY AT LARGE TO REACH AN
UNINFORMED CONCLUSION AS TO WHAT WOULD HAVE CONSTITUTED REASONABLE
CONDUCT ON THE PART OF THE RESPONDENT WITH RESPECT TO THE EQUIPPING OF
THIS PART OF THE SHIP.  NO EVIDENCE OF ANY KIND WAS INTRODUCED TO SHOW
WHETHER RADAR TOWERS ON VESSELS OF THIS SORT ORDINARILY WERE EQUIPPED
WITH SAFETY DEVICES OR WHETHER SEAMEN ASSIGNED THERETO HAD NEED OF SUCH
EQUIPMENT IN THE ORDINARY COURSE OF THEIR ACTIVITIES.  EXPERT TESTIMONY
WOULD HAVE SERVED THIS PURPOSE, AS WOULD ANY OTHER EVIDENCE BEARING
PROBATIVELY ON THE REASONABLENESS OF RESPONDENT'S CONDUCT IN FAILING TO
EQUIP ITS VESSEL WITH THESE DEVICES.  IN THE ABSENCE OF ANY SUCH
EVIDENCE THE COURT OF APPEALS WAS ENTIRELY JUSTIFIED IN HOLDING THAT
THE DISTRICT COURT'S INSTRUCTION AMOUNTED TO REVERSIBLE ERROR. 

I AGREE WITH THIS COURT'S HOLDING AS TO FUTURE MAINTENANCE.  I WOULD
AFFIRM. 
..END :
























BEARD V. STAHR 370 U.S. 41 


NO. 648.  DECIDED MAY 28, 1962 - REPORTED BELOW:  200 F. SUPP. 766. 


AFTER ADMINISTRATIVE PROCEEDINGS BY AN ARMY BOARD OF INQUIRY AND A
BOARD OF REVIEW UNDER 10 U.S.C. (SUPP. II) SECS. 3792 AND 3793 HAD
RESULTED IN A RECOMMENDATION THAT THE SECRETARY OF THE ARMY REMOVE
APPELLANT, A COMMISSIONED OFFICER IN THE REGULAR ARMY, FROM THE ACTIVE
LIST AND AWARD HIM A GENERAL DISCHARGE, BUT BEFORE THE SECRETARY HAD
TAKEN ANY ACTION UNDER SEC. 3794, APPELLANT SUED IN A FEDERAL DISTRICT
COURT TO ENJOIN THE SECRETARY FROM DETERMINING WHETHER HE SHOULD BE
REMOVED.  HE CLAIMED THAT THE ADMINISTRATIVE PROCEEDINGS WERE
UNCONSTITUTIONAL BECAUSE THEY DEPRIVED HIM OF HIS OFFICE AND RETIREMENT
BENEFITS WITHOUT DUE PROCESS OF LAW.  THE DISTRICT COURT SUSTAINED THE
CONSTITUTIONALITY OF THE STATUTE AND THE ADMINISTRATIVE PROCEEDINGS AND
DISMISSED THE COMPLAINT.  HELD:  THE JUDGMENT IS VACATED WITH
DIRECTIONS TO DISMISS THE COMPLAINT AS PREMATURE.  APPLICATION FOR A
STAY IS DENIED.  PP. 41-42. 

BEARD V. STAHR, SECRETARY OF THE ARMY, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CAUSE IS
REMANDED WITH DIRECTIONS TO DISMISS THE COMPLAINT.  THE ACTION IS
PREMATURE.  THE APPELLANT WILL NOT BE REMOVED FROM THE ACTIVE LIST OF
THE REGULAR ARMY UNLESS THE SECRETARY OF THE ARMY EXERCISES THE
DISCRETIONARY AUTHORITY TO REMOVE HIM CONFERRED BY 10 U.S.C. SEC.
3794.  THE SECRETARY HAS NOT STATED THAT HE WILL SO EXERCISE HIS
DISCRETION AS TO REMOVE APPELLANT.  IF THE SECRETARY DOES NOT REMOVE
THE APPELLANT IT WILL BE UNNECESSARY TO PASS ON THE CONSTITUTIONAL
OBJECTIONS WHICH HAVE BEEN URGED.  IF APPELLANT IS REMOVED, THE COURT
IS SATISFIED THAT ADEQUATE PROCEDURES FOR SEEKING REDRESS WILL BE OPEN
TO HIM.  COMPARE AIRCRAFT & DIESEL CORP. V. HIRSCH.  331 U.S. 752, 772
773.  ACCORDINGLY, THE APPLICATION FOR A STAY IS DENIED. 

THE CHIEF JUSTICE IS OF THE OPINION THAT FURTHER CONSIDERATION OF THE
QUESTION OF JURISDICTION SHOULD BE POSTPONED TO THE HEARING OF THE CASE
ON THE MERITS AND WOULD GRANT THE APPLICATION FOR A STAY. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

APPELLANT IS A MAJOR IN THE REGULAR ARMY AND HAS THE TEMPORARY RANK
OF LIEUTENANT COLONEL.  HE SERVED IN WORLD WAR II AND RECEIVED THE
BRONZE STAR MEDAL.  HE AT PRESENT HAS HAD OVER 19 YEARS OF ACTIVE
FEDERAL SERVICE AND WILL BE ELIGIBLE FOR RETIREMENT IN NOVEMBER 1962. 
BUT FOR THE PRESENT CHARGE AGAINST HIM HIS MILITARY RECORD REFLECTS
EXEMPLARY CONDUCT AND HIGH EFFICIENCY RATINGS. 

THESE YEARS OF FAITHFUL SERVICE HAVE NOW GONE LARGELY FOR NAUGHT
UNDER A DECISION OF AN ARMY BOARD OF REVIEW RECOMMENDING THAT HE BE
GIVEN A GENERAL DISCHARGE.  WHATEVER THE MERITS MAY BE, I BELIEVE THAT
THE PROCEDURE USED AT HIS HEARING VIOLATED OUR STANDARDS OF FAIRNESS. 

UNDER THE STATUTE HERE IN QUESTION, 10 U.S.C. SEC. 3792(C), AN
OFFICER FACED WITH A CHARGE CARRIES THE BURDEN OF PROOF THAT "HE SHOULD
BE RETAINED ON THE ACTIVE LIST." 

THE DISTRICT COURT HELD THAT THERE WAS NO CONSTITUTIONAL OBJECTION TO
PLACING THIS BURDEN OF PROOF ON THE OFFICER.  200 F. SUPP. 766, 775. 
IT REASONED THAT SINCE THE PRESIDENT COULD DISMISS AN OFFICER
SUMMARILY,* CONGRESS COULD PLACE ON THE ONE REMOVED "THE ONUS OF
CONVINCING HIS SUPERIORS THAT HE SHOULD NOT BE ELIMINATED."  IBID.
DISMISSAL IS ONE THING; DISMISSAL WITH STIGMA, AS HERE, IS QUITE
ANOTHER.  DISMISSAL WITH STIGMA IS A SEVERE PENALTY.  IN COMPARABLE
SITUATIONS, THE GOVERNMENT HAS BEEN REQUIRED TO CARRY THE BURDEN OF
PROOF.  KWONG HAI CHEW V. ROGERS, 103 U.S. APP. D.C. 228, 257 F.2D 606;
WOOD V. HOY, 266 F.2D 825, 830.  UNLESS THIS BURDEN IS METICULOUSLY
MAINTAINED, DISCHARGE FOR RACE, FOR RELIGION, FOR POLITICAL OPINION, OR
FOR BELIEFS MAY MASQUERADE UNDER UNPROVED CHARGES.  THIS RIGHT, LIKE
THE RIGHT TO BE HEARD, IS BASIC TO OUR SOCIETY.  CF. JOINT ANTI-FASCIST
REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 168 (CONCURRING OPINION);
BEILAN V. BOARD OF EDUCATION, 357 U.S. 399, 421-423 (DISSENTING
OPINION); WIEMAN V. UPDEGRAFF, 344 U.S. 183, 191. 

*WHICH, OF COURSE, IS A MISTAKEN PREMISE.  SEE WIENER V. UNITED
STATES, 357 U.S. 349; BLAKE V. UNITED STATES, 103 U.S. 227, 231. 

THERE IS A SECOND REASON WHY WE SHOULD REMAND THIS CASE FOR A NEW
HEARING.  THE ONE WITNESS WHOSE TESTIMONY WAS CRITICAL TO THE CASE WAS
NOT CALLED.  CONFRONTATION AND CROSS-EXAMINATION ARE, AS I UNDERSTAND
THE LAW, VITAL WHEN ONE'S EMPLOYMENT RIGHTS ARE INVOLVED (SEE GREENE V.
MCELROY, 360 U.S. 474, 496) - THE FACTOR THAT DISTINGUISHES CAFETERIA
WORKERS V. MCELROY, 367 U.S. 886, WHERE THE ONLY QUESTION WAS ACCESS TO
A MILITARY BASE.  PERHAPS THE MISSING ACCUSER - WHOSE ACTIVITIES WERE
DESCRIBED IN UNCOMPLIMENTARY TERMS IN RITTENOUR V. DISTRICT OF
COLUMBIA, 163 A.2D 558 - WOULD HAVE MADE SUCH AN UNBECOMING WITNESS
THAT THE BOARD WOULD HAVE DISMISSED THE CHARGES.  FACELESS INFORMERS
ARE OFTEN EFFECTIVE IF THEY NEED NOT TAKE THE STAND.  A FAIR HEARING
REQUIRES THE PRODUCTION OF THE ACCUSER SO THAT CROSS-EXAMINATION CAN
TEST HIS CHARACTER AND RELIABILITY.  THAT QUESTION IS VERY CLOSE TO THE
ONE INVOLVED IN NO. 1123, MISC., WILLIAMS V. ZUCKERT, IN WHICH WE
GRANTED CERTIORARI ONLY THE OTHER DAY.  369 U.S. 884.  THIS CASE SHOULD
BE HEARD WITH THAT ONE. 

I THINK THE PRESENT CASE IS RIPE FOR REVIEW.  ONCE THE SECRETARY OF
THE ARMY APPROVES THE DECISION NOW CHALLENGED, APPELLANT WILL BE
SEVERED FROM MILITARY SERVICE WITH LESS THAN AN HONORABLE DISCHARGE. 
IF A WRONG WAS COMMITTED, I ASSUME THAT HE COULD RECOVER A JUDGMENT
THAT RESTORES ANY LOSS OF SALARY OR PENSION.  MORE THAN DOLLARS,
HOWEVER, ARE INVOLVED:  AT STAKE IS A MAN'S PROFESSIONAL STANDING, HIS
CHARACTER, AND HIS CLAIM TO AN HONORABLE DISCHARGE.  WHERE THE ARMY
DEPARTS FROM THE STATUTORY STANDARD WHICH PRESCRIBES THE BASIS ON WHICH
DISCHARGES WILL BE ISSUED, THE FEDERAL COURTS CAN INTERVENE.  SEE
HARMON V. BRUCKER, 355 U.S. 579.  THOUGH THE COURT'S OPINION MAY BE
READ AS INDICATING THAT A COLLATERAL PROCEEDING TO SET ASIDE ONE
DISCHARGE AND TO DIRECT THAT AN HONORABLE ONE BE GRANTED MAY LIE, WE
SHOULD NONETHELESS HALT THIS IRREGULAR PROCEDURE IN LIMINE.  FOR WE ARE
DEALING HERE WITH THE CHARGE OF "CONDUCT UNBECOMING AN OFFICER," A
CHARGE THAT CARRIES A HEAVY STIGMA.  AS WINTHROP SAID:  "THOUGH IT NEED
NOT AMOUNT TO A CRIME, IT MUST OFFEND SO SERIOUSLY AGAINST LAW,
JUSTICE, MORALITY OR DECORUM AS TO EXPOSE TO DISGRACE, SOCIALLY OR AS A
MAN, THE OFFENDER, AND AT THE SAME TIME MUST BE OF SUCH A NATURE OR
COMMITTED UNDER SUCH CIRCUMSTANCES AS TO BRING DISHONOR OR DISREPUTE
UPON THE MILITARY PROFESSION WHICH HE REPRESENTS."  MILITARY LAW AND
PRECEDENTS (2D ED. 1896) 1104. 

IF DECLARATORY RELIEF WILL BE ACCORDED, AS IT CERTAINLY COULD BE
(BLAND V. CONNALLY, 110 U.S. APP. D.C. 375, 293 F.2D 852), THIS ACTION
FOR AN INJUNCTION IS TIMELY TO PREVENT AN INJUSTICE.  AS RECENTLY
STATED:  "WE THINK IT MUST BE CONCEDED THAT ANY DISCHARGE CHARACTERIZED
AS LESS THAN HONORABLE WILL RESULT IN SERIOUS INJURY.  IT NOT ONLY
MEANS THE LOSS OF NUMEROUS BENEFITS IN BOTH THE FEDERAL AND STATE
SYSTEMS, BUT IT ALSO RESULTS IN AN UNMISTAKABLE SOCIAL STIGMA WHICH
GREATLY LIMITS THE OPPORTUNITIES FOR BOTH PUBLIC AND PRIVATE CIVILIAN
EMPLOYMENT."  110 U.S. APP. D.C. 375, 381, 293 F.2D 852, 858. 

I WOULD REVERSE THE JUDGMENT BELOW AND DIRECT THAT APPELLANT BE
ACCORDED A HEARING THAT COMPORTS WITH THE REQUIREMENTS OF DUE PROCESS. 

..END :



WATKINS V. CITY OF WILSON 370 U.S. 46 


NO. 789.  DECIDED MAY 28, 1962 - APPEAL DISMISSED AND CERTIORARI DENIED
REPORTED BELOW: 255 N.C. 510, 121 S.E.2D 861. 


WATKINS V. CITY OF WILSON ET AL. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













FASS V. NEW JERSEY 370 U.S. 47 


NO. 824.  DECIDED MAY 28, 1962 - APPEAL DISMISSED AND CERTIORARI DENIED
REPORTED BELOW: 36 N.J. 102, 175 A.2D 193. 


FASS V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :











BUSBY V. HARRIS 370 U.S. 48 


NO. 728, MISC.  DECIDED MAY 28, 1962. 


CERTIORARI GRANTED; JUDGMENT OF COURT OF APPEALS VACATED AND CASE
REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE PROCEEDINGS AS
MOOT. 

BUSBY ET AL. V. HARRIS, JUDGE, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

UPON THE SOLICITOR GENERAL'S SUGGESTION OF MOOTNESS AND UPON AN
EXAMINATION OF THE ENTIRE RECORD, THE MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND THE PETITION FOR WRIT OF CERTIORARI ARE GRANTED. 
THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS
REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE PROCEEDINGS UPON
THE GROUND THAT THE CASE IS MOOT. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :





FREE V. BLAND 369 U.S. 663 


NO. 205.  ARGUED MARCH 21, 1962 - DECIDED MAY 21, 1962 - 162 TEX. 72,
344 S.W.2D 435, REVERSED. 


BY VIRTUE OF THE SUPREMACY CLAUSE OF THE CONSTITUTION, THE TREASURY
REGULATIONS CREATING A RIGHT OF SURVIVORSHIP IN UNITED STATES SAVINGS
BONDS REGISTERED IN CO-OWNERSHIP FORM PREEMPT ANY INCONSISTENT
PROVISION OF THE TEXAS COMMUNITY PROPERTY LAW.  PP. 664-671. 

(A)  THE TREASURY REGULATIONS WHICH PROVIDE, INTER ALIA, THAT, WHEN A
SAVINGS BOND IS REGISTERED IN CO-OWNERSHIP FORM, I.E., PAYABLE TO ONE
PERSON "OR" ANOTHER, A CO-OWNER WHO SURVIVES THE OTHER CO-OWNER "WILL
BE RECOGNIZED AS THE SOLE AND ABSOLUTE OWNER" OF THE BOND, AND THAT "NO
JUDICIAL DETERMINATION WILL BE RECOGNIZED WHICH WOULD  ...  DEFEAT OR
IMPAIR THE RIGHTS OF SURVIVORSHIP CONFERRED BY THESE REGULATIONS,"
CONSTITUTE A VALID FEDERAL LAW WITHIN THE MEANING AND INTENT OF THE
SUPREMACY CLAUSE.  PP. 666-668. 

(B)  A PROVISION OF THE TEXAS COMMUNITY PROPERTY LAW WHICH, IN
EFFECT, PROHIBITS A MARRIED COUPLE FROM TAKING ADVANTAGE OF THE
SURVIVORSHIP PROVISIONS OF THESE REGULATIONS MERELY BECAUSE THE
PURCHASE PRICE OF THE SAVINGS BONDS IS PAID OUT OF COMMUNITY PROPERTY
CONFLICTS WITH THE FEDERAL REGULATIONS ON THIS SUBJECT AND MUST FALL
UNDER THE SUPREMACY CLAUSE.  PP. 667-671. 

FREE V. BLAND. 

CERTIORARI TO THE SUPREME COURT OF TEXAS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON TO DETERMINE WHETHER THE TREASURY REGULATIONS
CREATING A RIGHT OF SURVIVORSHIP IN UNITED STATES SAVINGS BONDS PRE
EMPT ANY INCONSISTENT TEXAS COMMUNITY PROPERTY LAW BY VIRTUE OF THE
SUPREMACY CLAUSE, ARTICLE VI, CLAUSE 2, OF THE CONSTITUTION. 

THE PETITIONER IS THE WIDOWER OF MRS. MARY IDA FREE, AND THE
RESPONDENT IS HER SON BY A PREVIOUS MARRIAGE.  MR. AND MRS. FREE WERE
DOMICILED IN TEXAS.  THAT STATE FOLLOWS THE COMMUNITY PROPERTY SYSTEM;
EXCEPT IN CERTAIN INSTANCES NOT HERE MATERIAL, ALL PROPERTY ACQUIRED BY
EITHER SPOUSE DURING MARRIAGE BELONGS TO THE COMMUNITY OF THE HUSBAND
AND WIFE.  (FN1)  PROPERTY PURCHASED WITH COMMUNITY PROPERTY RETAINS A
COMMUNITY CHARACTER.  SEE LOVE V. ROBERTSON, 7 TEX. 6.  ALTHOUGH EACH
SPOUSE OWNS AN UNDIVIDED ONE-HALF INTEREST IN THE COMMUNITY PROPERTY,
THE HUSBAND IS THE SOLE AUTHORIZED MANAGER.  (FN2)  DURING THE YEARS
1941 TO 1945, PETITIONER FREE, USING COMMUNITY PROPERTY, PURCHASED
SEVERAL UNITED STATES SAVINGS BONDS, SERIES "E" AND "F".  THE BONDS
WERE ALL ISSUED TO "MR. OR "MRS.  FREE.  UNDER THE TREASURY REGULATIONS
PROMULGATED UNDER 31 U.S.C. SEC. 757CA) WHICH GOVERN BONDS ISSUED IN
THAT FORM, WHEN EITHER CO-OWNER DIES, "THE SURVIVOR WILL BE RECOGNIZED
AS THE SOLE AND ABSOLUTE OWNER."  31 CFR SEC. 315.61.  AFTER MRS. FREE
PASSED AWAY IN 1958, THIS CONTROVERSY AROSE BETWEEN THE HUSBAND, WHO
CLAIMED EXCLUSIVE OWNERSHIP BY OPERATION OF THE TREASURY REGULATIONS,
AND THE SON, WHO, AS THE PRINCIPAL BENEFICIARY UNDER HIS MOTHER'S WILL,
CLAIMED AN INTEREST IN THE BONDS BY VIRTUE OF THE STATE COMMUNITY
PROPERTY LAWS.  RESPONDENT SON DEMANDED EITHER ONE-HALF OF THE BONDS OR
REIMBURSEMENT FOR THE LOSS OF MRS. FREE'S COMMUNITY HALF INTEREST IN
THE BONDS WHICH WAS CONVERTED INTO PETITIONER'S SEPARATE PROPERTY BY
OPERATION OF THE FEDERAL REGULATIONS. 

IN ORDER TO RESOLVE THE CONTROVERSY, PETITIONER FREE FILED SUIT IN
THE DISTRICT COURT OF UPSHUR COUNTY, TEXAS, AGAINST THE RESPONDENT
INDIVIDUALLY AND AS THE EXECUTOR OF MRS. FREE'S ESTATE.  RESPONDENT
BLAND FILED A COUNTER-CLAIM.  ON THE PETITIONER'S MOTION FOR SUMMARY
JUDGMENT, THE TRIAL COURT AWARDED FULL TITLE TO THE BONDS TO THE
PETITIONER BY VIRTUE OF THE FEDERAL REGULATIONS BUT AWARDED
REIMBURSEMENT TO THE RESPONDENT BY VIRTUE OF THE STATE COMMUNITY
PROPERTY LAWS, MAKING THE BONDS SECURITY FOR PAYMENT.  THE PETITIONER
APPEALED TO THE COURT OF CIVIL APPEALS.  THAT COURT AFFIRMED THE TRIAL
COURT'S AWARD OF FULL TITLE TO THE PETITIONER BUT REVERSED THE AWARD OF
REIMBURSEMENT TO THE RESPONDENT, (FN3) RELYING UPON SMITH V. RICKS, 159
TEX. 280, 318 S.W.2D 439, IN WHICH UNCONDITIONAL EFFECT WAS GIVEN TO
THE SURVIVORSHIP PROVISIONS OF THE FEDERAL REGULATIONS GOVERNING
SAVINGS BONDS. 

WHILE RESPONDENT'S WRIT OF ERROR WAS PENDING IN THE SUPREME COURT OF
TEXAS, THAT COURT OVERRULED THE RICKS CASE IN HILLEY V. HILLEY, 161
TEX. 569, 342 S.W.2D 565.  AFTER HOLDING THAT MARRIED COUPLES IN TEXAS
WOULD NOT BE PERMITTED TO AGREE TO ANY SURVIVORSHIP PROVISION WITH
REGARD TO COMMUNITY PROPERTY, THE COURT DISMISSED THE ARGUMENT THAT THE
SUPREMACY CLAUSE WOULD COMPEL RECOGNITION OF THE SURVIVORSHIP
PROVISIONS IN UNITED STATES SAVINGS BONDS WITH: 

"IT IS CLEAR THAT THE FEDERAL REGULATIONS DO NOT OVERRIDE OUR LOCAL
LAWS IN MATTERS OF PURELY PRIVATE OWNERSHIP WHERE THE INTERESTS OF THE
UNITED STATES ARE NOT INVOLVED.  BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASS'N V. PARNELL, 352 U.S. 29."  161 TEX., AT 577, 342 S.W.2D,
AT 570. 

SUBSEQUENTLY, RESPONDENT BLAND'S WRIT OF ERROR WAS GRANTED, AND THE
SUPREME COURT OF TEXAS, ACTING UNDER THE AUTHORITY OF THE HILLEY CASE,
REVERSED THE COURT OF CIVIL APPEALS AND REINSTATED THE JUDGMENT OF THE
TRIAL COURT IN A PER CURIAM OPINION.  BLAND V. FREE, 162 TEX. 72, 344
S.W.2D 435.  WE GRANTED CERTIORARI.  368 U.S. 811. 

THE SUPREME COURT OF TEXAS' INTERPRETATION OF THE SUPREMACY CLAUSE IS
NOT IN ACCORD WITH CONTROLLING DOCTRINE.  THE RELATIVE IMPORTANCE TO
THE STATE OF ITS OWN LAW IS NOT MATERIAL WHEN THERE IS A CONFLICT WITH
A VALID FEDERAL LAW, FOR THE FRAMERS OF OUR CONSTITUTION PROVIDED THAT
THE FEDERAL LAW MUST PREVAIL.  ARTICLE VI, CLAUSE 2.  THIS PRINCIPLE
WAS MADE CLEAR BY CHIEF JUSTICE MARSHALL WHEN HE STATED FOR THE COURT
THAT ANY STATE LAW, HOWEVER CLEARLY WITHIN A STATE'S ACKNOWLEDGED
POWER, WHICH INTERFERES WITH OR IS CONTRARY TO FEDERAL LAW, MUST
YIELD.  GIBBONS V. OGDEN, 9 WHEAT.  1, 210-211.  SEE FRANKLIN NATIONAL
BANK V. NEW YORK, 347 U.S. 373; WISSNER V. WISSNER, 338 U.S. 655; SOLA
ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S. 173.  THUS OUR INQUIRY
IS DIRECTED TOWARD WHETHER THERE IS A VALID FEDERAL LAW, AND IF SO,
WHETHER THERE IS A CONFLICT WITH STATE LAW. 

ARTICLE I, SECTION 8, CLAUSE 2 OF THE CONSTITUTION DELEGATES TO THE
FEDERAL GOVERNMENT THE POWER "TO BORROW MONEY ON THE CREDIT OF THE
UNITED STATES."  PURSUANT TO THIS GRANT OF POWER, THE CONGRESS
AUTHORIZED THE SECRETARY OF THE TREASURY, WITH THE APPROVAL OF THE
PRESIDENT, TO ISSUE SAVINGS BONDS IN SUCH FORM AND UNDER SUCH
CONDITIONS AS HE MAY FROM TIME TO TIME PRESCRIBE, SUBJECT TO CERTAIN
LIMITATIONS NOT HERE MATERIAL.  31 U.S.C.  SEC. 757CA).  (FN4)  CF.
UNITED STATES V. SACKS, 257 U.S. 37.  EXERCISING THAT AUTHORITY, THE
SECRETARY OF THE TREASURY ISSUED SAVINGS BONDS UNDER REGULATIONS WHICH
PROVIDED, INTER ALIA, THAT THE CO-OWNER OF A SAVINGS BOND ISSUED IN THE
"OR" FORM WHO SURVIVES THE OTHER CO-OWNER "WILL BE RECOGNIZED AS THE
SOLE AND ABSOLUTE OWNER" OF THE BOND, 31 CFR SEC. 315.61, (FN5) AND
THAT "NO JUDICIAL DETERMINATION WILL BE RECOGNIZED WHICH WOULD  ...
DEFEAT OR IMPAIR THE RIGHTS OF SURVIVORSHIP CONFERRED BY THESE
REGULATIONS," 31 CFR SEC. 315.20.  (FN6)  THE TREASURY HAS CONSISTENTLY
MAINTAINED THAT THE PURPOSE OF THESE REGULATIONS IS TO ESTABLISH THE
RIGHT OF SURVIVORSHIP REGARDLESS OF LOCAL STATE LAW, (FN7) AND A
MAJORITY OF THE STATES WHICH HAVE CONSIDERED THE PROBLEM HAVE
RECOGNIZED THIS RIGHT.  (FN8)  THE RESPONDENT, HOWEVER, CONTENDS THAT
THE PURPOSE OF THE REGULATIONS IS SIMPLY TO PROVIDE A CONVENIENT METHOD
OF PAYMENT.  (FN9)  THIS ARGUMENT DEPENDS PRIMARILY ON THE DISTINCTION
BETWEEN STATING THAT THE SURVIVING CO-OWNER WILL "BE RECOGNIZED AS" THE
SOLE OWNER AND STATING THAT THE SURVIVING CO-OWNER WILL "BE" THE SOLE
OWNER.  THIS DISTINCTION IS INSUBSTANTIAL.  THE CLEAR PURPOSE OF THE
REGULATIONS IS TO CONFER THE RIGHT OF SURVIVORSHIP ON THE SURVIVING CO
OWNER.  THUS, THE SURVIVORSHIP PROVISION IS A FEDERAL LAW (FN10) WHICH
MUST PREVAIL IF IT CONFLICTS WITH STATE LAW.  SEE WISSNER V. WISSNER,
338 U.S. 655. 

THE SUCCESS OF THE MANAGEMENT OF THE NATIONAL DEBT DEPENDS TO A
SIGNIFICANT MEASURE UPON THE SUCCESS OF THE SALES OF THE SAVINGS
BONDS.  THE TREASURY IS AUTHORIZED TO MAKE THE BONDS ATTRACTIVE TO
SAVERS AND INVESTORS.  (FN11)  ONE OF THE INDUCEMENTS SELECTED BY THE
TREASURY IS THE SURVIVORSHIP PROVISION, A CONVENIENT METHOD OF AVOIDING
COMPLICATED PROBATE PROCEEDINGS.  NOTWITHSTANDING THIS PROVISION, THE
STATE AWARDED FULL TITLE TO THE CO-OWNER BUT REQUIRED HIM TO ACCOUNT
FOR HALF OF THE VALUE OF THE BONDS TO THE DECEDENT'S ESTATE.  VIEWED
REALISTICALLY, THE STATE HAS RENDERED THE AWARD OF TITLE MEANINGLESS. 
MAKING THE BONDS SECURITY FOR THE PAYMENT CONFIRMS THE ACCURACY OF THIS
VIEW.  IF THE STATE CAN FRUSTRATE THE PARTIES' ATTEMPT TO USE THE
BONDS' SURVIVORSHIP PROVISION THROUGH THE SIMPLE EXPEDIENT OF REQUIRING
THE SURVIVOR TO REIMBURSE THE ESTATE OF THE DECEASED CO-OWNER AS A
MATTER OF LAW, THE STATE HAS INTERFERED DIRECTLY WITH A LEGITIMATE
EXERCISE OF THE POWER OF THE FEDERAL GOVERNMENT TO BORROW MONEY. 

BANK OF AMERICA TRUST & SAVINGS ASSN. V. PARNELL, 352 U.S. 29, RELIED
UPON BY THE COURT BELOW, DOES NOT SUPPORT THE RESULT REACHED.  THE
COURT IN THAT CASE HELD THAT, IN THE ABSENCE OF ANY FEDERAL LAW, THE
APPLICATION OF STATE LAW TO DETERMINE THE LIABILITY OF A CONVERTER OF
FEDERAL HOME OWNERS' LOAN CORPORATION BONDS WAS PERMISSIBLE, BECAUSE
THE LITIGATION BETWEEN THE TWO PRIVATE PARTIES THERE DID NOT INTRUDE
UPON THE RIGHTS AND THE DUTIES OF THE UNITED STATES, THE EFFECT ON THE
ONLY POSSIBLE INTEREST OF THE UNITED STATES - THE FLOATING OF
SECURITIES - BEING TOO SPECULATIVE TO JUSTIFY THE APPLICATION OF A
FEDERAL RULE.  THAT DOCTRINE CLEARLY DOES NOT APPLY WHEN THE STATE
FAILS TO GIVE EFFECT TO A TERM OR CONDITION UNDER WHICH A FEDERAL BOND
IS ISSUED, AS THE COURT THERE NOTED.  "FEDERAL LAW OF COURSE GOVERNS
THE INTERPRETATION OF THE NATURE OF THE RIGHTS AND OBLIGATIONS CREATED
BY THE GOVERNMENT BONDS THEMSELVES."  352 U.S., AT 34. 

WE HOLD, THEREFORE, THAT THE STATE LAW WHICH PROHIBITS A MARRIED
COUPLE FROM TAKING ADVANTAGE OF THE SURVIVORSHIP PROVISIONS OF UNITED
STATES SAVINGS BONDS MERELY BECAUSE THE PURCHASE PRICE IS PAID OUT OF
COMMUNITY PROPERTY MUST FALL UNDER THE SUPREMACY CLAUSE. 

OUR HOLDING IS SUPPORTED BY WISSNER V. WISSNER, 338 U.S. 655.  THERE
THE CONGRESS MADE CLEAR ITS INTENT TO ALLOW A SERVICEMAN TO SELECT THE
BENEFICIARY OF HIS OWN GOVERNMENT LIFE INSURANCE POLICY REGARDLESS OF
STATE LAW, EVEN WHEN IT WAS LIKELY THAT THE HUSBAND INTENDED TO DEPRIVE
HIS WIFE OF A RIGHT TO SHARE IN HIS LIFE INSURANCE PROCEEDS, A RIGHT
GUARANTEED BY STATE LAW.  BUT THE REGULATIONS GOVERNING SAVINGS BONDS
DO NOT GO THAT FAR.  WHILE AFFORDING PURCHASERS OF BONDS THE
OPPORTUNITY TO CHOOSE A SURVIVORSHIP PROVISION WHICH MUST BE RECOGNIZED
BY THE STATES, THE REGULATIONS NEITHER INSULATE THE PURCHASERS FROM ALL
CLAIMS REGARDING OWNERSHIP NOR IMMUNIZE THE BONDS FROM EXECUTION IN
SATISFACTION OF A JUDGMENT.  (FN12)  THE SOLICITOR GENERAL, APPEARING
AS AMICUS CURIAE, ACKNOWLEDGES THAT THERE IS AN EXCEPTION IMPLICIT IN
THE SAVINGS BOND REGULATIONS, INCLUDING THE SURVIVORSHIP PROVISION, SO
THAT FEDERAL BONDS WILL NOT BE A "SANCTUARY FOR A WRONGDOER'S GAINS." 
(FN13)  WITH THIS, WE AGREE.  THE REGULATIONS ARE NOT INTENDED TO BE A
SHIELD FOR FRAUD, AND RELIEF WOULD BE AVAILABLE IN A CASE WHERE THE
CIRCUMSTANCES MANIFEST FRAUD OR A BREACH OF TRUST TANTAMOUNT THERETO ON
THE PART OF A HUSBAND WHILE ACTING IN HIS CAPACITY AS MANAGER OF THE
GENERAL COMMUNITY PROPERTY.  HOWEVER, THE DOCTRINE OF FRAUD APPLICABLE
UNDER FEDERAL LAW (FN14) IN SUCH A CASE MUST BE DETERMINED ON ANOTHER
DAY, FOR THIS ISSUE IS NOT PRESENTLY HERE.  ON THE RECORD BEFORE US, NO
ISSUE OF FRAUD WAS OR COULD PROPERLY HAVE BEEN DECIDED BY THE COURT
BELOW ON SUMMARY JUDGMENT.  THERE WAS NO DIRECT ALLEGATION OF FRAUD IN
THE COUNTERCLAIM.  OTHER ALLEGATIONS WHICH IN SOME CIRCUMSTANCES MIGHT
HAVE A BEARING ON THE SUBJECT WERE CONTROVERTED AND THEREFORE CAN ONLY
BE RESOLVED BY A TRIAL ON THE MERITS.  ACCORDINGLY, THE JUDGMENT IS
REVERSED AND THE CASE IS REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  VERNON'S TEX. CIV. STAT., ART. 4619.  SEE TEX. CONST., ART. XVI,
SEC. 15; VERNON'S TEX. CIV. STAT., ARTS. 4613-4627.  PROPERTY ACQUIRED
BY GIFT, DEVISE OR DESCENT IS SEPARATE PROPERTY.  VERNON'S TEX. CIV.
STAT., ARTS. 4613-4614.  ALSO, COMMUNITY PROPERTY PARTITIONED IN THE
MANNER PROVIDED IN VERNON'S TEX. CIV. STAT., ART. 4624A, BECOMES
SEPARATE PROPERTY.  SEE GENERALLY HUIE, COMMENTARY ON THE COMMUNITY
PROPERTY LAWS OF TEXAS, 13 VERNON'S TEX. CIV. STAT. 1. 

FN2  VERNON'S TEX. CIV. STAT., ART. 4619.  SEE HUIE, SUPRA, NOTE 1,
AT 39.  THE WIFE MAY HAVE MANAGERIAL POWER OVER THE "SPECIAL" COMMUNITY
COMPRISED OF HER INCOME AND THE INCOME FROM HER SEPARATE PROPERTY.  SEE
BEARDEN V. KNIGHT, 149 TEX. 108, 228 S.W.2D 837.  BLEVINS, RECENT
STATUTORY CHANGES IN THE WIFE'S MANAGERIAL POWERS, 38 TEX. L. REV.
55. 

FN3  337 S.W.2D 805 (TEX. CIV. APP.). 

FN4  "THE SECRETARY OF THE TREASURY, WITH THE APPROVAL OF THE
PRESIDENT, IS AUTHORIZED TO ISSUE, FROM TIME TO TIME, THROUGH THE
POSTAL SERVICE OR OTHERWISE, UNITED STATES SAVINGS BONDS AND UNITED
STATES TREASURY SAVINGS CERTIFICATES, THE PROCEEDS OF WHICH SHALL BE
AVAILABLE TO MEET ANY PUBLIC EXPENDITURES AUTHORIZED BY LAW, AND TO
RETIRE ANY OUTSTANDING OBLIGATIONS OF THE UNITED STATES BEARING
INTEREST OR ISSUED ON A DISCOUNT BASIS.  THE VARIOUS ISSUES AND SERIES
OF THE SAVINGS BONDS AND THE SAVINGS CERTIFICATES SHALL BE IN SUCH
FORMS, SHALL BE OFFERED IN SUCH AMOUNTS, SUBJECT TO THE LIMITATION
IMPOSED BY SECTION 757B OF THIS TITLE, AND SHALL BE ISSUED IN SUCH
MANNER AND SUBJECT TO SUCH TERMS AND CONDITIONS CONSISTENT WITH
SUBSECTIONS (B)-(D) OF THIS SECTION, AND INCLUDING ANY RESTRICTIONS ON
THEIR TRANSFER, AS THE SECRETARY OF THE TREASURY MAY FROM TIME TO TIME
PRESCRIBE." 

FN5  "IF EITHER COOWNER DIES WITHOUT THE BOND HAVING BEEN PRESENTED
AND SURRENDERED FOR PAYMENT OR AUTHORIZED REISSUE, THE SURVIVOR WILL BE
RECOGNIZED AS THE SOLE AND ABSOLUTE OWNER.  THEREAFTER, PAYMENT OR
REISSUE WILL BE MADE AS THOUGH THE BOND WERE REGISTERED IN THE NAME OF
THE SURVIVOR ALONE  ...  ." 

FN6  "NO JUDICIAL DETERMINATION WILL BE RECOGNIZED WHICH WOULD GIVE
EFFECT TO AN ATTEMPTED VOLUNTARY TRANSFER INTER VIVOS OF A BOND OR
WOULD DEFEAT OR IMPAIR THE RIGHTS OF SURVIVORSHIP CONFERRED BY THESE
REGULATIONS UPON A SURVIVING COOWNER OR BENEFICIARY, AND ALL OTHER
PROVISIONS OF THIS SUBPART ARE SUBJECT TO THIS RESTRICTION.  OTHERWISE,
A CLAIM AGAINST AN OWNER OR COOWNER OF A SAVINGS BOND AND CONFLICTING
CLAIMS AS TO OWNERSHIP OF, OR INTEREST IN, SUCH BOND AS BETWEEN
COOWNERS OR BETWEEN THE REGISTERED OWNER AND BENEFICIARY WILL BE
RECOGNIZED, WHEN ESTABLISHED BY VALID JUDICIAL PROCEEDINGS, UPON
PRESENTATION AND SURRENDER OF THE BOND, BUT ONLY AS SPECIFICALLY
PROVIDED IN THIS SUBPART."    FN7  SEE, E.G., STATEMENT OF TREASURY
DEPARTMENT ON RIGHTS OF SURVIVING COOWNERS AND BENEFICIARIES OF SAVINGS
BONDS, DATED JULY 5, 1945, AND FIFTH REVISION, DATED OCTOBER 1, 1958;
LETTER FROM THE ACTING ASSISTANT GENERAL COUNSEL OF THE TREASURY TO THE
ATTORNEY GENERAL OF MISSOURI, JUNE 9, 1941; TREASURY DEPARTMENT
CIRCULAR NO. 530, 1935. 

FN8  SEE, E.G., LEE V. ANDERSON, 70 ARIZ. 208, 218 P.2D 732; STEPHENS
V. FIRST NATIONAL BANK OF NEVADA, 65 NEV. 352, 196 P.2D 756. 

FN9  SEE, E.G., DECKER V. FOWLER, 199 WASH. 549, 92 P.2D 254.  IN
THIS CASE THE GOVERNMENT PARTICIPATED AS AMICUS CURIAE IN SUPPORT OF AN
APPLICATION FOR REHEARING, URGING THAT THE COURT HAD ERRONEOUSLY
CONSTRUED THE REGULATIONS. 

FN10  LESLIE MILLER, INC., V. ARKANSAS, 352 U.S. 187; STANDARD OIL
CO. V. JOHNSON, 316 U.S. 481; UNITED STATES V. SACKS, 257 U.S. 37;
UNITED STATES V. BIRDSALL, 233 U.S. 223. 

FN11  31 U.S.C. SEC. 757CA).  SEE NOTE 4, SUPRA. 

FN12  31 CFR SECS. 315.20-315.23.  SEE NOTE 6, SUPRA. 

FN13  BRIEF FOR THE UNITED STATES AS AMICUS CURIAE, P. 21.  SEE ALSO
ID., PP. 26-28. 

FN14  SEE, E.G., HOLMBERG V. ARMBRECHT, 327 U.S. 392; CLEARFIELD
TRUST CO. V. UNITED STATES, 318 U.S. 363. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :








HANOVER BANK V. COMMISSIONER OF INTERNAL REVENUE 369 U.S. 672 


NO. 224.  ARGUED FEBRUARY 27, 1962 - DECIDED MAY 21, 1962 - 289 F.2D 69,
REVERSED. 


THE INTERNAL REVENUE CODE OF 1939 PERMITS A TAXPAYER TO DEDUCT,
THROUGH AMORTIZATION, THE PREMIUM HE HAS PAID IN PURCHASING CORPORATE
BONDS, AND SEC. 125 PROVIDES THAT THE AMOUNT TO BE AMORTIZED "SHALL BE
DETERMINED  ...  WITH REFERENCE TO THE AMOUNT PAYABLE ON MATURITY OR ON
EARLIER CALL DATE."  IN 1953, PRIOR TO DECEMBER 1, TAXPAYERS PURCHASED
AT A PREMIUM CORPORATE BONDS WHICH WERE CALLABLE ON 30 DAYS' NOTICE,
EITHER AT A "GENERAL CALL PRICE" OR AT A LOWER "SPECIAL CALL PRICE,"
AND ELECTED ON THEIR 1953 INCOME TAX RETURNS TO CLAIM DEDUCTIONS FOR
BOND PREMIUMS COMPUTED WITH REFERENCE TO THE 30-DAY CALL PERIOD AND THE
SPECIAL CALL PRICE.  HELD:  THEY WERE ENTITLED TO DO SO, SINCE THE
SPECIAL CALL PRICE AT WHICH THE BONDS HERE INVOLVED COULD BE REDEEMED
FROM A LIMITED SINKING FUND AND FROM OTHER SPECIAL FUNDS MADE AVAILABLE
UPON THE OCCURRENCE OF CERTAIN CONTINGENT EVENTS WAS AN "AMOUNT PAYABLE
...  ON EARLIER CALL DATE" WITHIN THE MEANING OF SEC. 125, AND THERE
WAS NO BASIS IN THE STATUTE, IN THE LEGISLATIVE HISTORY OR IN THE
COMMISSIONER'S PRIOR INTERPRETATIONS OF THE STATUTE FOR A DISTINCTION
BETWEEN A REFERENCE TO A GENERAL OR SPECIAL CALL PRICE IN COMPUTING
AMORTIZABLE BOND PREMIUMS UNDER THE 1939 CODE.  PP. 673-688. 

HANOVER BANK, EXECUTOR, ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

DESPITE THE SEEMINGLY COMPLEX FACTUAL COMPOSITION OF THE TWO CASES
CONSOLIDATED HEREIN, (FN1) THIS OPINION DEALS WITH A RELATIVELY SIMPLE
QUESTION OF TAXATION:  THE EXTENT TO WHICH A TAXPAYER MAY DEDUCT,
THROUGH AMORTIZATION UNDER THE INTERNAL REVENUE CODE OF 1939, THE
PREMIUM HE HAS PAID IN PURCHASING CORPORATE BONDS.  IN 1953, PRIOR TO
DECEMBER 1, THE PETITIONERS PURCHASED FULLY TAXABLE UTILITY BONDS AT A
PREMIUM ABOVE MATURITY VALUE.  (FN2)  THE BONDS WERE CALLABLE AT THE
OPTION OF THE ISSUER AT EITHER A GENERAL OR SPECIAL CALL PRICE, AND AT
EITHER PRICE THEY WERE CALLABLE UPON 30 DAYS' NOTICE.  THE TERM
"GENERAL CALL PRICE" IS USED TO DESIGNATE THE PRICE AT WHICH THE ISSUER
MAY FREELY AND UNCONDITIONALLY REDEEM ALL OR ANY PORTION OF THE
OUTSTANDING BONDS FROM ITS GENERAL FUNDS.  THE LOWER, "SPECIAL CALL
PRICE," IS THE AMOUNT THE ISSUER WOULD PAY IF THE BONDS WERE REDEEMED
WITH CASH FROM CERTAIN SPECIALLY DESIGNATED FUNDS.  (FN3) 

IN COMPUTING NET INCOME, THE 1939 CODE PERMITS A TAXPAYER TO DEDUCT,
THROUGH AMORTIZATION, THE PREMIUM HE HAS PAID IN PURCHASING CORPORATE
BONDS.  (FN4)  SECTION 125 OF THE CODE, SET FORTH IN PERTINENT PART IN
THE MARGIN, (FN5) PROVIDES THAT THE AMOUNT OF BOND PREMIUM TO BE
AMORTIZED "SHALL BE DETERMINED  ...  WITH REFERENCE TO THE AMOUNT
PAYABLE ON MATURITY OR ON EARLIER CALL DATE."  PURSUANT TO THIS
RETURNS A DEDUCTION FOR BOND PREMIUM AMORTIZATION COMPUTED WITH
REFERENCE TO THE SPECIAL REDEMPTION PRICE AND TO THE 30-DAY REDEMPTION
PERIOD APPEARING IN THE BOND INDENTURES.  THE RESPONDENT DID NOT
QUESTION THE PETITIONERS' USE OF THE 30-DAY AMORTIZATION PERIOD, BUT HE
DISALLOWED THE COMPUTATION BASED UPON THE SPECIAL REDEMPTION PRICE AND
RECOMPUTED THE AMOUNT OF BOND PREMIUM USING THE HIGHER, GENERAL CALL
PRICE.  (FN6)  THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED THE
TAX COURT'S ORDERS SUSTAINING THE COMMISSIONER'S DEFICIENCY
DETERMINATION.  289 F.2D 69.  HOWEVER, IN CASES PRESENTING THE
IDENTICAL LEGAL ISSUE, THE COURTS OF APPEALS FOR THE THIRD (EVANS V.
DUDLEY, 295 F.2D 713) AND SIXTH (UNITED STATES V. PARNELL, 272 F.2D
943, AFFIRMING 187 F. SUPP. 576) CIRCUITS ALLOWED AMORTIZATION TAKEN
WITH REFERENCE TO THE SPECIAL REDEMPTION PRICES.  (FN7)  TO RESOLVE
THIS CONFLICT, WE GRANTED CERTIORARI.  368 U.S. 812. 

BOND PREMIUM IS THE AMOUNT A PURCHASER PAYS IN BUYING A BOND THAT
EXCEEDS THE FACE OR CALL VALUE OF THE BOND.  (FN8)  WHEN A BOND SELLS
AT A PREMIUM, IT IS GENERALLY BECAUSE THE INTEREST IT BEARS EXCEEDS THE
RATE OF RETURN ON SIMILAR SECURITIES IN THE CURRENT MARKET.  FOR THE
RIGHT TO RECEIVE THIS HIGHER INTEREST RATE THE PURCHASER OF A BOND PAYS
A PREMIUM PRICE WHEN MAKING THE INVESTMENT.  HOWEVER, INTEREST IS
TAXABLE TO THE RECIPIENT, AND WHEN A PREMIUM HAS BEEN PAID THE ACTUAL
INTEREST RECEIVED IS NOT A TRUE REFLECTION OF THE BOND'S YIELD, BUT
REPRESENTS IN PART A RETURN OF THE PREMIUM PAID.  IT WAS TO GIVE EFFECT
TO THIS PRINCIPLE THAT CONGRESS IN 1942 ENACTED SECTION 125 OF THE 1939
CODE, (FN9) WHICH FOR THE FIRST TIME PROVIDED FOR AMORTIZATION OF BOND
PREMIUM FOR TAX PURPOSES. 

BY PROVIDING THAT AMORTIZATION COULD BE TAKEN WITH REFERENCE TO THE
"AMOUNT PAYABLE ON MATURITY OR ON EARLIER CALL DATE", CONGRESS
RECOGNIZED THAT BONDS ARE GENERALLY SUBJECT TO REDEMPTION BY THE ISSUER
PRIOR TO THEIR MATURITY.  IN ELECTING TO ALLOW AMORTIZATION WITH
REFERENCE TO THE PERIOD THE BONDS MIGHT ACTUALLY BE OUTSTANDING,
CONGRESS, THROUGH THE WORDS TO WHICH WE HAVE LENT EMPHASIS, PROVIDED
THAT A BONDHOLDER COULD AMORTIZE BOND PREMIUM WITH REFERENCE TO ANY
DATE NAMED IN THE INDENTURE AT WHICH THE BOND MIGHT BE CALLED.  (FN10) 

A BOND INDENTURE MIGHT CONTAIN ANY NUMBER OF POSSIBLE CALL DATES, BUT
WE NEED ONLY TO BE CONCERNED IN THIS CASE WITH THE ISSUER'S RIGHT TO
CALL THE BONDS ON 30 DAYS' NOTICE AT EITHER A GENERAL OR SPECIAL CALL
PRICE.  UNQUESTIONABLY, BOTH GENERAL AND SPECIAL REDEMPTION PROVISIONS
HAVE A LEGITIMATE, THOUGH DISTINCT, BUSINESS PURPOSE, AND BOTH WERE IN
WIDESPREAD USE WELL BEFORE THE ENACTMENT OF SECTION 125.  THE GENERAL
CALL PRICE IS EMPLOYED WHEN THE ISSUER FINDS THAT THE CURRENT RATE OF
INTEREST ON MARKETABLE SECURITIES IS SUBSTANTIALLY LOWER THAN WHAT IT
IS PAYING ON AN OUTSTANDING ISSUE.  THE ISSUER MAY THEN CALL THE BONDS
AT THE GENERAL PRICE AND, FOLLOWING REDEMPTION, MAY REFINANCE THE
OBLIGATION AT THE LOWER, PREVAILING RATE OF INTEREST.  IN CONTRAST, THE
PROVISION FOR SPECIAL FUNDS FROM WHICH BONDS MAY BE REDEEMED AT THE
SPECIAL CALL PRICE, SERVES AN ENTIRELY DIFFERENT PURPOSE.  BOND
INDENTURES NORMALLY REQUIRE THE ISSUER TO PROTECT THE UNDERLYING
SECURITY OF THE BONDS BY MAINTAINING THE MORTGAGED PROPERTY AND BY
INSURING THAT ITS VALUE IS NOT IMPAIRED.  THIS IS DONE, FIRST, THROUGH
THE MAINTENANCE OF A SPECIAL SINKING FUND, TO WHICH THE ISSUER IS
OBLIGATED TO MAKE PERIODIC PAYMENTS, AND, SECONDLY, THROUGH THE
MAINTENANCE OF OTHER SPECIAL FUNDS, TO WHICH ARE ADDED THE PROCEEDS
FROM A SALE OR DESTRUCTION OF MORTGAGED PROPERTY, OR FROM ITS LOSS
THROUGH A TAKING BY EMINENT DOMAIN.  (FN11)  ALTHOUGH THE ISSUER
NORMALLY RESERVES AN ALTERNATIVE TO MAINTAINING THESE SPECIAL FUNDS
WITH CASH, CIRCUMSTANCES MAY DICTATE THAT THE ONLY ATTRACTIVE OPTION
FROM A BUSINESS STANDPOINT IS THE PAYMENT OF CASH AND, TO PREVENT THE
ACCUMULATION OF THIS IDLE MONEY, THE INDENTURE PROVIDES THAT THE ISSUER
MAY USE IT TO REDEEM OUTSTANDING BONDS AT A SPECIAL CALL PRICE.  IT IS
EVIDENT THAT JUST AS PREVAILING MARKET CONDITIONS MAY RENDER REDEMPTION
AT THE SPECIAL CALL PRICE UNLIKELY AT A GIVEN TIME, THE SAME OR
DIFFERENT MARKET CONDITIONS MAY ALSO CAUSE REDEMPTION AT THE GENERAL
CALL PRICE EQUALLY UNLIKELY, (FN12) PARTICULARLY IN AN EXPANDING
INDUSTRY SUCH AS UTILITIES.  DURING THE PERIOD THE PETITIONERS HELD
THEIR BONDS, NONE WERE CALLED AT EITHER PRICE, BUT THE RISK INCURRED
THAT THEY WOULD BE CALLED WAS PRESENT WITH EQUAL FORCE AS TO BOTH THE
GENERAL AND SPECIAL CALL PROVISIONS.  THE MARKET FOR BONDS REFLECTS
THAT RISK, AND THE SECTION OF THE CODE WE ARE ASKED TO INTERPRET TAKES
COGNIZANCE OF THAT MARKET REALITY. 

TURNING TO THE SPECIFIC PROBLEM IN THE INSTANT CASE, WE ARE ASKED TO
DETERMINE WHETHER THE SPECIAL PRICE AT WHICH THE BONDS MAY BE REDEEMED
BY THE ISSUER FROM THE LIMITED SINKING FUND ACCOUNT AND FROM THE OTHER
SPECIAL FUNDS MADE AVAILABLE UPON THE OCCURRENCE OF CERTAIN CONTINGENT
EVENTS (SEE NOTE 3, SUPRA) IS AN "AMOUNT PAYABLE  ...  ON EARLIER CALL
DATE" WITHIN THE MEANING OF SECTION 125.  FOR THE REASONS STATED BELOW,
WE ANSWER THIS QUESTION AFFIRMATIVELY AND HOLD THAT THERE IS NO BASIS
EITHER IN THE STATUTE, IN THE LEGISLATIVE HISTORY, OR IN THE
RESPONDENT'S OWN PRIOR INTERPRETATIONS OF THE STATUTE, FOR A
DISTINCTION BETWEEN REFERENCE TO A GENERAL OR SPECIAL CALL PRICE IN
COMPUTING AMORTIZABLE BOND PREMIUMS UNDER THE 1939 CODE. 

FIRST, WE NOTE THAT THE GOVERNMENT HAS MADE CERTAIN IMPORTANT
CONCESSIONS WHICH LIGHTEN CONSIDERABLY THE TASK BEFORE US.  IT DOES NOT
QUESTION THE RIGHT OF THE PETITIONERS TO AMORTIZE BOND PREMIUM WITH
REFERENCE TO THE 30-DAY CALL PERIOD, NOR DOES IT QUESTION AMORTIZATION
TO THE GENERAL CALL PRICE.  (FN13)  IN ADDITION, IN REQUESTING A RULE
WHICH WILL APPLY TO THE "GENERALITY OF CASES," (FN14) IT PROFESSES TO
HAVE ABANDONED ITS ARGUMENT BELOW WHICH BECAME THE RATIONALE OF THE
SECOND CIRCUIT IN HOLDING AGAINST THE TAXPAYERS, THAT THE STATUTE CALLS
FOR AN ANALYSIS INTO THE "LIKELIHOOD OF REDEMPTION" BEFORE AMORTIZATION
AT A SPECIAL CALL PRICE WILL BE PERMITTED.  (FN15) MOREOVER, THE
GOVERNMENT DOES NOT CONTEND THAT THE TRANSACTIONS ENTERED INTO BY THE
PETITIONERS WERE A SHAM WITHOUT ANY BUSINESS PURPOSE EXCEPT TO GAIN A
TAX ADVANTAGE.  (FN16)  RATHER, THE GOVERNMENT'S POSITION IN THIS COURT
IS THAT BEFORE AN "EARLIER CALL DATE" IS ESTABLISHED WITH REFERENCE TO
THE SPECIAL CALL PRICE, THE TAXPAYER MUST SHOW THAT "THERE IS AN
ASCERTAINABLE DATE ON WHICH THE ISSUER WILL BECOME ENTITLED TO REDEEM A
PARTICULAR BOND AT ITS OPTION."  THE GOVERNMENT ASSERTS THAT IT IS NOT
ENOUGH THAT THE ISSUER HAS THE RIGHT TO CALL SOME BONDS AT THE SPECIAL
REDEMPTION PRICE.  RATHER, "IT MUST HAVE THE RIGHT TO CALL THE
PARTICULAR BOND FOR WHICH AMORTIZATION IS CLAIMED, FOR OTHERWISE THAT
BOND HAS NO 'EARLIER CALL DATE.'"  THE GOVERNMENT'S PRIMARY REASON FOR
URGING THIS INTERPRETATION OF SECTION 125 IS THAT THE STATUTE HAS
CREATED A TAX LOOPHOLE OF MAJOR DIMENSION THAT SHOULD BE CLOSED SHORT
OF ALLOWING THE DEDUCTION SOUGHT IN THIS CASE.  WHILE THIS ASSERTION
MIGHT HAVE BEEN PERSUASIVE IN SECURING ENACTMENT OF THE AMENDMENTS TO
THE STATUTE MADE SUBSEQUENT TO THE TIME THE TRANSACTIONS INVOLVED HERE
TOOK PLACE (SEE DISCUSSION, INFRA), IT MAY NOT, OF COURSE, HAVE ANY
IMPACT UPON OUR INTERPRETATION OF THE STATUTE UNDER REVIEW.  WE ARE
BOUND BY THE MEANING OF THE WORDS USED BY CONGRESS, TAKEN IN LIGHT OF
THE PERTINENT LEGISLATIVE HISTORY.  IN NEITHER DO WE FIND SUPPORT FOR
THE GOVERNMENT'S INTERPRETATION. 

THIS COURT WAS FIRST CALLED UPON TO CONSTRUE SECTION 125 IN 1950 IN
COMMISSIONER V. KORELL, 339 U.S. 619.  THE TAXPAYER THERE HAD PURCHASED
BONDS AT A PREMIUM WHICH REFLECTED IN LARGE PART NOT A HIGHER YIELD OF
INTEREST, BUT, RATHER, THE ATTRACTIVENESS OF THE CONVERTIBLE FEATURE OF
THE BONDS.  THE BONDS WERE CALLABLE ON 30 DAYS' NOTICE AND THE TAXPAYER
AMORTIZED THE PREMIUM ACCORDINGLY.  IN CONTESTING THE DEDUCTION THUS
TAKEN, THE COMMISSIONER CONTENDED THAT SECTION 125, IN ESTABLISHING A
DEDUCTION FOR "AMORTIZABLE BOND PREMIUM," DID NOT INCLUDE PREMIUM PAID
FOR THE CONVERSION PRIVILEGE.   IN REJECTING THIS CONTENTION, THE COURT
MADE IT CLEAR THAT SECTION 125 WAS NOT ENACTED SOLELY TO ENABLE A
BONDHOLDER TO AMORTIZE "TRUE PREMIUM," BUT THAT BY "THE CLEAR AND
PRECISE AVENUE OF EXPRESSION ACTUALLY ADOPTED BY THE CONGRESS" (339
U.S., AT 625), THE LEGISLATION WAS ADOPTED WITH "NO DISTINCTIONS BASED
UPON THE INDUCEMENTS FOR PAYING THE PREMIUM."  (ID., AT 628.) 

THE DECISION IN KORELL LED TO CONGRESSIONAL RE-EXAMINATION OF SECTION
125, AND THE ENACTMENT OF SECTION 217(A) OF THE REVENUE ACT OF 1950 (64
STAT. 906), WHICH ELIMINATED AMORTIZATION OF BOND PREMIUMS ATTRIBUTABLE
TO A CONVERSION FEATURE.  HOWEVER, RESPONSE TO THE KORELL DECISION WAS
SPECIFICALLY LIMITED TO THE CONVERTIBLE BOND SITUATION; NO FURTHER
CHANGE WAS MADE IN THE STATUTE WHICH WOULD REFLECT ON ITS
INTERPRETATION IN THE CASE BEFORE US.  (FN17) 

IN 1954, IN ENACTING THE SUCCESSOR TO SECTION 125, SECTION 171 OF THE
INTERNAL REVENUE CODE OF 1954 (26 U.S.C., 1958 ED.), CONGRESS AGAIN
TOOK COGNIZANCE OF THE TAX BENEFIT IN QUESTION, AND DETERMINED TO
ELIMINATE THE ABUSES INHERENT IN PERMITTING AMORTIZATION WITH REFERENCE
TO 30-DAY CALL PERIODS.  THUS CONGRESS FURTHER NARROWED THE LOOPHOLE BY
PROVIDING THAT THE PREMIUM ON CALLABLE BONDS COULD BE AMORTIZED TO THE
NEAREST CALL DATE ONLY IF SUCH DATE WAS MORE THAN THREE YEARS FROM THE
DATE OF THE ORIGINAL ISSUE OF THE SECURITIES.  WITH PARTICULAR
RELEVANCE TO THE GOVERNMENT'S ARGUMENT IN THE INSTANT CASE, IT IS
WORTHY OF NOTE THAT CONGRESS UNDERSTOOD THE OPERATION OF THE STATUTE TO
THE TAXPAYER'S ADVANTAGE, BUT LIMITED CORRECTION OF THE ABUSES INHERENT
IN IT TO ELIMINATION OF THE QUICK WRITE-OFF.  THE HOUSE REPORT
ACCOMPANYING H.R. 8300, WHICH WAS TO BECOME THE INTERNAL REVENUE CODE
OF 1954, STATED (H.R. REP. NO. 1337, 83D CONG., 2D SESS. 26): 

"UNDER EXISTING LAW, A BOND PREMIUM MAY BE AMORTIZED WITH REFERENCE
TO THE AMOUNT PAYABLE ON MATURITY OR ON EARLIER CALL DATE, AT THE
ELECTION OF THE TAXPAYER.  IN THE CASE OF BONDS WITH A VERY SHORT CALL
FEATURE, SUCH AS THOSE PROVIDING FOR CALL AT ANY TIME ON 30-DAY NOTICE,
THE ENTIRE PREMIUM MAY BE DEDUCTED IN THE YEAR OF PURCHASE. 

"THIS PROVISION HAS GIVEN RISE TO TAX-AVOIDANCE OPPORTUNITIES. 
SUBSTANTIAL BOND ISSUES HAVE BEEN MADE SUBJECT TO A 30-DAY CALL,
PERMITTING THE PURCHASER TO TAKE AN IMMEDIATE DEDUCTION FOR THE ENTIRE
PREMIUM AGAINST ORDINARY INCOME.  WHERE THE CALL FEATURE IS NOMINAL OR
INOPERATIVE THIS PERMITS A DEDUCTION FOR AN UNREAL LOSS, SINCE THE
MARKET VALUE OF THE BONDS ORDINARILY REMAINS FAIRLY STABLE OVER
CONSIDERABLE PERIODS.  THE BONDS MAY THEN BE RESOLD AFTER 6 MONTHS
SUBJECT TO LONG-TERM CAPITAL GAIN TREATMENT.  THE WRITEOFF OF PREMIUM
THUS AFFORDS A GRATUITOUS TAX SAVING, EQUIVALENT TO THE CONVERSION OF A
CORRESPONDING AMOUNT OF ORDINARY INCOME INTO CAPITAL GAIN.  THIS
PROCESS MAY BE REPEATED INDEFINITELY. 

"TO CURB THIS TYPE OF ABUSE, YOUR COMMITTEE'S BILL PROVIDES THAT THE
PREMIUM ON CALLABLE BONDS MAY BE AMORTIZED TO THE NEAREST CALL DATE
ONLY IF SUCH DATE IS MORE THAN 3 YEARS FROM THE DATE OF ORIGINAL ISSUE
OF THE SECURITIES.  THIS PROVISION WILL APPLY ONLY TO BONDS ISSUED
AFTER JANUARY 22, 1951, AND ACQUIRED AFTER JANUARY 22, 1954." 

NOT ONLY DID CONGRESS FAIL TO MAKE THE DISTINCTION BETWEEN GENERAL
AND SPECIAL CALL PROVISIONS URGED BY THE RESPONDENT, BUT IT EXPRESSLY
RECOGNIZED THAT DEDUCTIONS COULD BE TAKEN UNDER SECTION 125 WITH
REFERENCE TO A CALL DATE THAT WAS "NOMINAL OR INOPERATIVE."  IT DID NOT
REMOTELY IMPLY THAT A SHOWING OF A RIGHT TO CALL ALL OR ANY PART OF THE
OUTSTANDING BONDS WAS NECESSARY FOR OPERATION OF THE STATUTE. 
FURTHERMORE, THE CHANGE THAT IT DID ADOPT WAS TO OPERATE PROSPECTIVELY
ONLY.    FINALLY, IN 1958, BY ADOPTION OF SECTION 13 OF THE TECHNICAL
AMENDMENTS ACT OF 1958, 72 STAT. 1610, CONGRESS ELIMINATED ENTIRELY THE
RIGHT TO AMORTIZE TO CALL DATE, PERMITTING AMORTIZATION TO BE TAKEN
ONLY OVER THE PERIOD TO MATURITY.  (FN18)  AGAIN, THE LEGISLATIVE
CHANGE WAS PROSPECTIVE ONLY AND AGAIN NO DISTINCTION WAS MADE WITH
RESPECT TO GENERAL AND SPECIAL CALL DATES OR WITH RESPECT TO A RIGHT TO
CALL ALL OR A PART OF THE OUTSTANDING BONDS. 

PERSUASIVE EVIDENCE THAT WE ARE CORRECT IN OUR INTERPRETATION OF
AMENDMENTS, MAY BE FOUND IN THE RESPONDENT'S OWN PRIOR CONSTRUCTION OF
THE STATUTE.  AS IS TRUE WITH THE LANGUAGE OF THE STATUTE ITSELF, THE
RESPONDENT'S REGULATIONS CONTAINED NOT THE SLIGHTEST HINT OF THE
DISTINCTION URGED UPON US HERE.  THE COMMISSIONER DEFINED "EARLIER CALL
DATE" IN TREAS. REG. 118, SEC. 39.125(B)-2 (SEE NOTE 10, SUPRA) AS ANY
CALL DATE PRIOR TO MATURITY, SPECIFIED IN THE BOND.  THE REGULATIONS IN
EFFECT IN 1953 GIVE NO SUPPORT TO THE GOVERNMENT'S PRESENT CONTENTION
THAT THE TAXPAYER MUST SHOW AN UNCONDITIONAL RIGHT IN THE ISSUER TO
CALL THE OUTSTANDING BONDS AT A PARTICULAR REDEMPTION PRICE BEFORE
AMORTIZATION WITH REFERENCE TO THAT PRICE WOULD BE PERMITTED. 
FURTHERMORE, ALTHOUGH THE PETITIONERS ARE NOT ENTITLED TO RELY UPON
UNPUBLISHED PRIVATE RULINGS WHICH WERE NOT ISSUED SPECIFICALLY TO THEM,
(FN19) SUCH RULINGS DO REVEAL THE INTERPRETATION PUT UPON THE STATUTE
BY THE AGENCY CHARGED WITH THE RESPONSIBILITY OF ADMINISTERING THE
REVENUE LAWS.  AND, BECAUSE THE COMMISSIONER RULED, IN LETTERS
ADDRESSED TO TAXPAYERS REQUESTING THEM, THAT AMORTIZATION WITH
REFERENCE TO A SPECIAL CALL PRICE WAS PROPER UNDER THE STATUTE, (FN20)
WE HAVE FURTHER EVIDENCE THAT OUR CONSTRUCTION OF ALLOWABLE BOND
PREMIUM AMORTIZATION IS COMPELLED BY THE LANGUAGE OF THE STATUTE. 
(FN21) 

A FIRMLY ESTABLISHED PRINCIPLE OF STATUTORY INTERPRETATION IS THAT
"THE WORDS OF STATUTES - INCLUDING REVENUE ACTS - SHOULD BE INTERPRETED
WHERE POSSIBLE IN THEIR ORDINARY, EVERYDAY SENSES."  CRANE V.
COMMISSIONER, 331 U.S. 1, 6.  (FN22)  THE STATUTE IN ISSUE HERE, IN
PLAIN AND ORDINARY LANGUAGE, EVIDENCES A CLEAR CONGRESSIONAL INTENT TO
ALLOW AMORTIZATION WITH REFERENCE TO ANY CALL DATE NAMED IN THE
INDENTURE.  UNDER SUCH CIRCUMSTANCES WE ARE NOT AT LIBERTY,
NOTWITHSTANDING THE APPARENT TAX-SAVING WINDFALL BESTOWED UPON
TAXPAYERS, TO ADD TO OR ALTER THE WORDS EMPLOYED TO EFFECT A PURPOSE
WHICH DOES NOT APPEAR ON THE FACE OF THE STATUTE.  MOREOVER, THE
LEGISLATIVE HISTORY, TOO, IS PERSUASIVE EVIDENCE THAT THE STATUTE, AS
IT APPEARED IN 1953 WHEN THESE DEDUCTIONS WERE TAKEN, ALLOWED THE
DEDUCTION REFUSED THESE TAXPAYERS.  SIMPLY STATED, AN INFORMED CONGRESS
ENACTED SECTION 125 WITH FULL REALIZATION OF THE EXISTENCE AND
OPERATION OF SPECIAL CALL PROVISIONS, BUT CHOSE NOT TO MAKE ANY
DISTINCTION BETWEEN THEM AND GENERAL REDEMPTION RIGHTS.  NEITHER DID
THE COMMISSIONER.  NEVERTHELESS, THE GOVERNMENT NOW URGES THIS COURT TO
DO WHAT THE LEGISLATIVE BRANCH OF THE GOVERNMENT FAILED TO DO OR
ELECTED NOT TO DO.  THIS, OF COURSE, IS NOT WITHIN OUR PROVINCE. 
(FN23)  THE JUDGMENTS ARE REVERSED. 

FN1  WE HAVE BEFORE US TWO CASES WHICH ORIGINATED IN THE TAX COURT:
ESTATE OF GOURIELLI V. COMMISSIONER, 33 T.C. 357, AND GOLDFARB V.
COMMISSIONER, 33 T.C. 568.  THE CASES WERE CONSOLIDATED ON APPEAL TO
THE COURT OF APPEALS FOR THE SECOND CIRCUIT, AND ONE OPINION WAS FILED
BY THAT COURT.  ESTATE OF GOURIELLI V. COMMISSIONER, 289 F.2D 69. 
PETITIONER HANOVER BANK IS THE EXECUTOR OF THE ESTATE OF MR. GOURIELLI,
WHO PASSED AWAY SINCE THE COMMENCEMENT OF THIS ACTION. 

FN2  THE BONDS INVOLVED IN THE GOURIELLI CASE WERE APPALACHIAN
ELECTRIC POWER COMPANY, 1981 SERIES, BONDS, WHICH DECEDENT AND HIS WIFE
PURCHASED FOR $117.50 PER $100 FACE VALUE, AND WHICH WERE LATER SOLD
FOR $115.50.  THE BONDS IN GOLDFARB WERE ARKANSAS POWER & LIGHT
COMPANY, 30-YEAR, EIGHTH SERIES, BONDS, WHICH PETITIONERS PURCHASED AT
AN AVERAGE PRICE OF $110.50 PER $100 FACE AMOUNT, AND WHICH WERE LATER
SOLD AT AN AVERAGE PRICE OF $105.40.  THE TOTAL PURCHASES IN THE TWO
CASES WERE $540,000 (GOURIELLI) AND $500,000 (GOLDFARB) FACE AMOUNT;
THE PURCHASE PRICES WERE PAID IN CASH IN BOTH CASES. 

FN3  IN ADDITION TO A "SINKING FUND" INTO WHICH THE INDENTURE
REQUIRED APPALACHIAN TO DEPOSIT DURING EACH ANNUAL PERIOD AN AMOUNT (IN
CASH OR PROPERTY ADDITIONS OF AN EQUIVALENT AMOUNT) EQUAL TO ONE
PERCENT OF THE BOND ISSUE, THE SPECIAL FUNDS IN THE CASE OF THE
APPALACHIAN BONDS WERE:  (1) A RELEASED PROPERTY AND INSURANCE FUND, TO
WHICH DEPOSITS WERE REQUIRED ONLY UPON A LOSS BY CASUALTY OR BY A
RELEASE OF MORTGAGED PROPERTIES SECURING THE BONDS; AND (2) A
MAINTENANCE FUND, TO WHICH DEPOSITS WERE REQUIRED ONLY WHEN APPALACHIAN
FAILED TO EXPEND A STATED PERCENTAGE OF ITS REVENUES ON MAINTENANCE OR
IMPROVEMENTS.  THE SPECIAL FUNDS IN THE CASE OF THE ARKANSAS BONDS WERE
MADE UP FROM THE SAME TYPE CONTRIBUTIONS AS ABOVE, PLUS ADDITIONS MADE
TO AN EMINENT DOMAIN FUND IF AND WHEN MORTGAGED PROPERTY WAS TAKEN FROM
THE COMPANY BY EMINENT DOMAIN PROCEEDINGS. 

FN4  INTERNAL REVENUE CODE OF 1939 (26 U.S.C., 1952 ED.): 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS:

      *         *         *       *         * 

"(V)  (AS ADDED BY SEC. 126(A), REVENUE ACT OF 1942, C. 619, 56 STAT.
798) BOND PREMIUM DEDUCTION.  - IN THE CASE OF A BONDHOLDER, THE
DEDUCTION FOR AMORTIZABLE BOND PREMIUM PROVIDED IN SECTION 125." 

FN5  THIS SECTION WAS ALSO ADDED BY THE REVENUE ACT OF 1942, SUPRA,
NOTE 4, SEC. 126(B).  ENTITLED "AMORTIZABLE BOND PREMIUM," IT READS IN
PERTINENT PART AS FOLLOWS: 

"(A)  GENERAL RULE.  - IN THE CASE OF ANY BOND, AS DEFINED IN
SUBSECTION (D), THE FOLLOWING RULES SHALL APPLY TO THE AMORTIZABLE BOND
PREMIUM (DETERMINED UNDER SUBSECTION (B)) ON THE BOND FOR ANY TAXABLE
YEAR BEGINNING AFTER DECEMBER 31, 1941:

      *         *         *         *         * 

"(B)  AMORTIZABLE BOND PREMIUM. 

"(1)  AMOUNT OF BOND PREMIUM.  - FOR THE PURPOSES OF PARAGRAPH (2),
THE AMOUNT OF BOND PREMIUM, IN THE CASE OF THE HOLDER OF ANY BOND,
SHALL BE DETERMINED WITH REFERENCE TO THE AMOUNT OF THE BASIS (FOR
DETERMINING LOSS ON SALE OR EXCHANGE) OF SUCH BOND, AND WITH REFERENCE
TO THE AMOUNT PAYABLE ON MATURITY OR ON EARLIER CALL DATE, WITH
ADJUSTMENTS PROPER TO REFLECT UNAMORTIZED BOND PREMIUM WITH RESPECT TO
THE BOND, FOR THE PERIOD PRIOR TO THE DATE AS OF WHICH SUBSECTION (A)
BECOMES APPLICABLE WITH RESPECT TO THE TAXPAYER WITH RESPECT TO SUCH
BOND. 

"(2)  AMOUNT AMORTIZABLE.  - THE AMORTIZABLE BOND PREMIUM OF THE
TAXABLE YEAR SHALL BE THE AMOUNT OF THE BOND PREMIUM ATTRIBUTABLE TO
SUCH YEAR. 

"(3)  METHOD OF DETERMINATION.  - THE DETERMINATIONS REQUIRED UNDER
PARAGRAPHS (1) AND (2) SHALL BE MADE: 

"(A)  IN ACCORDANCE WITH THE METHOD OF AMORTIZING BOND PREMIUM
REGULARLY EMPLOYED BY THE HOLDER OF THE BOND, IF SUCH METHOD IS
REASONABLE: 

"(B)  IN ALL OTHER CASES, IN ACCORDANCE WITH REGULATIONS PRESCRIBING
REASONABLE METHODS OF AMORTIZING BOND PREMIUM, PRESCRIBED BY THE
COMMISSIONER WITH THE APPROVAL OF THE SECRETARY." 

FN6  AT THE TIME OF THE DEDUCTION IN GOURIELLI, THE SCHEDULE
APPEARING IN THE APPALACHIAN BOND INDENTURE PROVIDED THAT THE BONDS
COULD BE REDEEMED AT A GENERAL CALL PRICE OF 105 3/8 OR A SPECIAL CALL
PRICE OF 102 3/8.  THE PETITIONERS' BASIS WAS $117.50 (SEE SUPRA, NOTE
2) AND THEREFORE AMORTIZATION OF PREMIUM WITH REFERENCE TO THE TWO
PRICES WOULD RESULT IN A DEDUCTION OF $64,831.07 OR $83,056.07,
RESPECTIVELY.  THE DIFFERENCE IN THESE AMOUNTS, $18,225.00, WAS THE
AMOUNT DISALLOWED BY THE RESPONDENT.  BY A SIMILAR RECOMPUTATION WITH
REFERENCE TO THE SCHEDULE OF REDEMPTION PRICES APPEARING IN THE
ARKANSAS BOND INDENTURE (105.36 AS COMPARED TO 101.36), THE RESPONDENT
REDUCED THE DEDUCTION IN GOLDFARB BY $27,175.00.  THE ACTUAL TAX
DEFICIENCY IN EACH CASE WAS CONSIDERABLY LESS ($14,200.92 AND
$14,708.16, RESPECTIVELY), OF COURSE, BECAUSE DISALLOWANCE OF THE
LARGER PREMIUM RESULTED IN A CORRESPONDING INCREASE IN THE PETITIONERS'
BASIS WHICH HAD BEEN ADJUSTED PURSUANT TO SECTION 113(B)(1)(H) OF THE
CODE WHEN THE PREMIUM WAS AMORTIZED.  THIS INCREASE IN BASIS RESULTED
IN A SMALLER SHORT-TERM CAPITAL GAIN (THE PETITIONERS HELD THE BONDS
LESS THAN SIX MONTHS) THAN HAD BEEN REPORTED BY PETITIONERS IN THEIR
1953 RETURNS.  THE DECREASE IN TAX DUE ON THE CAPITAL GAIN WAS OFFSET
AGAINST THE AMOUNT OF AMORTIZATION DISALLOWED TO ARRIVE AT THE
PETITIONERS' ACTUAL TAX DEFICIENCIES IN ISSUE HERE. 

FN7  IN ADDITION TO THE THIRD AND SIXTH CIRCUITS' CASES, THE FIRST
AND SEVENTH CIRCUITS HAVE ALSO ALLOWED DEDUCTIONS OF BOND PREMIUM
AMORTIZATION TAKEN WITH REFERENCE TO SPECIAL REDEMPTION PRICES.  IN THE
FIRST CIRCUIT:  FABREEKA PRODUCTS CO. V. COMMISSIONER, 294 F.2D 876,
VACATING AND REMANDING 34 T.C. 290; SHERMAN V. COMMISSIONER, 34 T.C.
303; AND FRIEDMAN V. COMMISSIONER, 34 T.C. 456.  IN THE SEVENTH
CIRCUIT:  GALLUN V. COMMISSIONER, 297 F.2D 455, REVERSING 1960 P-H T.C.
MEMO.  DEC.  PARA. 60,104; AND MAYSTEEL PRODUCTS, INC., V.
COMMISSIONER, 287 F.2D 429, REVERSING 33 T.C. 1021.  IN EACH OF THESE
CASES THE TAXPAYER HAD PURCHASED BONDS AT A PREMIUM, AMORTIZED THAT
PREMIUM TO THE SPECIAL CALL PRICE, AND THEREAFTER MADE A DISTRIBUTION
OF THE BONDS WHICH ENTAILED A DOUBLE TAX DEDUCTION (E.G., A GIFT TO
CHARITY).  IN EACH CASE THE COURT OF APPEALS ALLOWED THE DOUBLE
DEDUCTION.  ALTHOUGH THE PRECISE ISSUE PRESENTED IN THE INSTANT CASE
WAS NOT EXPRESSLY DECIDED IN THESE LATTER CASES, DUE TO THE FACT THAT
THE COMMISSIONER DID NOT CHOOSE TO CHALLENGE THE USE OF THE SPECIAL
CALL PRICE AS AGAINST THE GENERAL CALL PRICE FOR DETERMINING THE AMOUNT
OF THE PREMIUM, THE ALLOWANCE OF THE AMORTIZATION TO THE SPECIAL
REDEMPTION PRICE IMPLIEDLY PLACES THE FIRST AND SEVENTH CIRCUITS IN
ACCORD WITH THE THIRD AND SIXTH CIRCUITS. 

FN8  SEE THE AUTHORITIES COLLECTED IN COMMISSIONER V. KORELL, 339
U.S. 619, 627, N. 10.  THE COURT IN KORELL, A CASE ALSO INVOLVING AN
INTERPRETATION OF SECTION 125 (SEE DISCUSSION, PP. 682-683, INFRA),
CONCLUDED (339 U.S., AT 627):  "WE ADOPT THE VIEW THAT 'BOND PREMIUM'
IN SEC. 125 MEANS ANY EXTRA PAYMENT, REGARDLESS OF THE REASON THEREFOR
...  ." 

FN9  COMMISSIONER V. KORELL, 339 U.S. 619, 621.  SEE 1 HEARINGS
BEFORE HOUSE COMMITTEE ON WAYS AND MEANS ON REVENUE REVISION OF 1942,
77TH CONG., 2D SESS. 90 (1942).  THE HOUSE COMMITTEE NOTED THE
RECOMMENDATION MADE IN THE HEARINGS THAT THE DIFFERENCE BETWEEN YIELD
AND THE ACTUAL INTEREST RATE BE TREATED AS A RETURN OF CAPITAL AND NOT
AS A CAPITAL LOSS (H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 47): 

"UNDER EXISTING LAW, BOND PREMIUM IS TREATED AS A CAPITAL LOSS
SUSTAINED BY THE OWNER OF THE BOND AT THE TIME OF DISPOSITION OR
MATURITY AND PERIODICAL PAYMENTS ON THE BOND AT THE NOMINAL OR COUPON
RATE ARE TREATED IN FULL AS INTEREST.  THE WANT OF STATUTORY
RECOGNITION OF THE SOUND ACCOUNTING PRACTICE OF AMORTIZING PREMIUM
LEADS TO INCORRECT TAX RESULTS WHICH IN MANY INSTANCES ARE SO SERIOUS
THAT PROVISION SHOULD BE MADE FOR THEIR AVOIDANCE." 

HOWEVER, IN REJECTING THE GOVERNMENT'S ARGUMENT IN KORELL, SUPRA,
THAT CONGRESS INTENDED TO CONFINE THE DEDUCTION ONLY TO PREMIUM PAID
FOR A HIGHER-THAN-MARKET INTEREST RATE, THE COURT STATED (339 U.S., AT
626-627): 

"AT MOST, THE COMMISSIONER'S PRESENTATION OF THE LEGISLATIVE
MATERIALS SUGGESTS THAT CONGRESS MAY HAVE HAD THE BONDHOLDER WHO WAS
SEEKING A HIGHER INTEREST RATE PRIMARILY IN MIND; BUT IT DOES NOT
ESTABLISH THAT CONGRESS IN FACT LEGISLATED WITH REFERENCE TO HIM
EXCLUSIVELY.  (CITATION OMITTED.)  CONGRESS, AND THE TREASURY IN
ADVISING CONGRESS, MAY WELL HAVE CONCLUDED THAT THE BEST MANNER OF
AFFORDING HIM RELIEF AND CORRECTING THE INEQUITABLE TREATMENT OF
BONDHOLDERS WHOSE INTEREST RECEIPTS WERE TAXABLE, WAS TO DEFINE THE
SCOPE OF THE AMENDMENT BY REFERENCE TO TYPES OF BONDS RATHER THAN
CAUSES OF PREMIUM PAYMENT." 

FN10  CONGRESS' INTENT IN THIS REGARD WAS EXPRESSLY NOTED BY THE
RESPONDENT IN ENACTING TREAS. REG. 118, SEC. 39.125(B)-2: 

"CALLABLE AND CONVERTIBLE BONDS.  (A) THE FACT THAT A BOND IS
CALLABLE  ...  DOES NOT, IN ITSELF, PREVENT THE APPLICATION OF SECTION
125  ...  .  THE EARLIER CALL DATE MAY BE THE EARLIEST CALL DATE
SPECIFIED IN THE BOND AS A DAY CERTAIN, THE EARLIEST INTEREST PAYMENT
DATE IF THE BOND IS CALLABLE AT SUCH DATE, THE EARLIEST DATE AT WHICH
THE BOND IS CALLABLE AT PAR, OR SUCH OTHER CALL DATE, PRIOR TO
MATURITY, SPECIFIED IN THE BOND AS MAY BE SELECTED BY THE TAXPAYER  ...
." 

FN11  SEE GENERALLY EVANS V. DUDLEY, 295 F.2D 713, 715; ESTATE OF
GOURIELLI V. COMMISSIONER, 289 F.2D 69, 73; PARNELL V. UNITED STATES,
187 F. SUPP. 576, 577, AFF'D, 272 F.2D 943.  SEE ALSO BADGER,
INVESTMENT PRINCIPLES AND PRACTICES (5TH ED. 1961), 46-47, 114-115,
129; I DEWING, FINANCIAL POLICY OF CORPORATIONS (5TH ED. 1953), 186
188, 247-249. 

FN12  HENCE, THE OCCURRENCE OF A REDEMPTION AT THE GENERAL CALL PRICE
IS DEPENDENT UPON ONE SET OF EVENTS - THE FLUCTUATION IN THE INTEREST
MARKET; THE OCCURRENCE OF A REDEMPTION AT THE SPECIAL CALL PRICE IS
DEPENDENT UPON ANOTHER SET OF EVENTS - DEPOSITS IN THE SINKING FUND BY
THE ISSUER OVER ONE OR MORE YEARS, TAKINGS BY GOVERNMENTAL AGENCIES
THROUGH EMINENT DOMAIN, DESTRUCTION OF THE PROPERTY SECURING THE BONDS,
ETC.  IN EITHER CASE, THE EVENTS COULD HAPPEN.  IN FACT, THE
PETITIONERS POINT OUT IN THEIR BRIEF HERE THAT IN RECENT YEARS MORE
BONDS HAVE BEEN CALLED AT THE SPECIAL REDEMPTION PRICE THAN AT THE
GENERAL PRICE.  SEE ALSO EVANS V. DUDLEY, 295 F.2D 713, 716.    FN13
ALLOWING A 30-DAY AMORTIZATION PERIOD IS IN ACCORD WITH THE DECISION OF
THE COURT IN KORELL WHERE, ALTHOUGH THE POINT WAS NOT ARGUED BY THE
GOVERNMENT, THE TAXPAYER HAD AMORTIZED THE PREMIUM WITH REFERENCE TO
THE 30-DAY PERIOD PROVIDED IN THE INDENTURE.  IN ITS BRIEF IN THE
INSTANT CASE THE GOVERNMENT STATES: 

"  ...  WE CONCEDE THAT IT IS NOW TOO LATE TO CHALLENGE THE
AMORTIZATION OF THE PREMIUM ON BONDS SUBJECT TO AN UNLIMITED RIGHT OF
REDEMPTION ON 30 DAYS' NOTICE.  NOT ONLY HAS THE CONSISTENT
ADMINISTRATIVE PRACTICE, CULMINATING IN A PUBLISHED RULING, BEEN TO
ALLOW SUCH AMORTIZATION, BUT CONGRESS, IN NARROWING SUCH DEDUCTIONS IN
THE 1954 CODE AND PROHIBITING THEM ENTIRELY AFTER 1957, EXPRESSLY
ACKNOWLEDGED THAT THE PRIOR LAW PERMITTED THAT TREATMENT  ...  .
ACCORDINGLY, WE DID NOT CHALLENGE IN THE LOWER COURTS AND DO NOT
CHALLENGE HERE PETITIONERS' RIGHT TO AMORTIZATION OF THE PREMIUM ON THE
BASIS OF THE GENERAL RIGHT OF THE ISSUER TO REDEEM THE BONDS AT ANY
TIME UPON 30 DAYS' NOTICE." 

SEE ALSO INT. REV. RUL. 56-398, 1956-2 CUM. BULL.  984, WHERE THE
RESPONDENT, IN A PUBLISHED RULING, ACQUIESCED IN A 30-DAY AMORTIZATION
PERIOD UNDER THE 1939 CODE. 

FN14  THIS CONCESSION ALSO CONFORMS TO THE PRONOUNCEMENT IN KORELL
(339 U.S., AT 625):  "CONGRESS WAS LEGISLATING FOR THE GENERALITY OF
CASES."  SEE ALSO EVANS V. DUDLEY, 295 F.2D 713, 716; PARNELL V. UNITED
STATES, 187 F. SUPP. 576, 579, AFF'D, 272 F.2D 943. 

FN15  THE COURT OF APPEALS FOR THE SECOND CIRCUIT STATED (289 F.2D
69, 74):  "WE DO NOT THINK THAT  ...  IN SEC. 125 OF THE CODE  ...
CONGRESS MEANT TO INCLUDE AN AMOUNT PAYABLE ON A CALL AT A 'SPECIAL'
PRICE OF WHICH THERE WAS NO REAL POSSIBILITY DURING THE PERIOD FOR
WHICH THE AMORTIZATION IS BEING TAKEN AND THE DEDUCTION CLAIMED."  AND
(289 F.2D, AT 72):  "  ...  THE HAZARD THAT ANY SIGNIFICANT NUMBER OF
PETITIONERS' BONDS WOULD BE CALLED DURING THE PERIOD WAS
INFINITESIMAL."  IN SO HOLDING, THE COURT ACCEPTED THE GOVERNMENT'S
ARGUMENT BELOW THAT "THE TAXPAYER IS NOT ENTITLED TO COMPUTE HIS
AMORTIZABLE BOND PREMIUM DEDUCTION  ...  WITH REFERENCE TO THE
'SPECIAL' CALL PRICE  ...  BECAUSE  ...  SUCH A CALL WAS SO CONTINGENT
AND UNLIKELY THAT THERE WAS NO REALISTIC CALL DATE AT THE 'SPECIAL'
CALL PRICE  ...  ." 

IN CONTRAST, THE GOVERNMENT STATES IN ITS BRIEF HERE:  "  ...  OUR
POSITION IS NOT DEPENDENT UPON THE PARTICULAR MARKET CONDITIONS OR THE
ACTUAL PROBABILITIES THAT A RIGHT OF REDEMPTION WILL BE EXERCISED  ...
.  WE AGREE WITH PETITIONERS THAT THE QUESTION  ...  SHOULD NOT BE
DEPENDENT UPON A FINDING IN EACH CASE OF THE ACTUAL 'LIKELIHOOD' THAT
ANY PARTICULAR REDEMPTION RIGHT WILL BE EXERCISED."  AS TO THE FUTILITY
IN ATTEMPTING TO APPLY A "LIKELIHOOD OF REDEMPTION" STANDARD, SEE NOTE
12, SUPRA. 

FN16  CF. KNETSCH V. UNITED STATES, 364 U.S. 361; GREGORY V.
HELVERING, 293 U.S. 465. 

FN17  THE LEGISLATION SIMPLY PROVIDED: 

"IN NO CASE SHALL THE AMOUNT OF BOND PREMIUM OF A CONVERTIBLE BOND
INCLUDE ANY AMOUNT ATTRIBUTABLE TO THE CONVERSION FEATURES OF THE
BOND." 

WHERE, AS IN THE CASE BEFORE US, A QUESTION OF INTERPRETATION OF
KORELL RETAINS ITS FULL VITALITY.  THUS, IT IS WORTH NOTING THAT THE
GOVERNMENT'S "RIGHT TO CALL" APPROACH ADVOCATED IN THE CASE AT BAR
WOULD RESULT IN A SUB SILENTIO OVERRULING OF KORELL TO THE EXTENT THAT
IN THE LATTER CASE THE RIGHT OF THE BONDHOLDER TO EXERCISE HIS
CONVERSION OPTION AT ANY TIME THROUGH THE EXPIRATION OF THE NOTICE
PERIOD OF A CALL DEFEATED COMPLETELY THE ISSUER'S "RIGHT" TO CALL AND
REDEEM EVEN A SINGLE BOND.  IN THE INSTANT CASE, HOWEVER, NEITHER PARTY
DISPUTES THE FACT THAT AT LEAST SOME OF THE BONDS COULD HAVE BEEN
CALLED AT THE SPECIAL PRICE AND THAT IF THE ISSUER EXERCISED HIS RIGHT
SO TO CALL THEM THE BONDHOLDER WOULD HAVE HAD NO CHOICE BUT TO TURN
OVER THE BONDS AND FORFEIT THE PREMIUM PAID FOR THEM. 

FN18  THE 1958 AMENDMENT LITERALLY PERMITS AMORTIZATION TO AN EARLIER
CALL DATE BUT ONLY IF IT RESULTS IN A SMALLER AMORTIZATION DEDUCTION
THAN WOULD AMORTIZATION TO MATURITY, WHICH, FOR ALL PRACTICAL PURPOSES,
EFFECTIVELY ELIMINATES THE PRIVILEGE OF CALLING TO AN EARLIER CALL
DATE. 

FN19  SEE, E.G., COMMISSIONER V. P.G. LAKE, INC., 356 U.S. 260, 265
266, N. 5; AUTOMOBILE CLUB V. COMMISSIONER, 353 U.S. 180; HELVERING V.
NEW YORK TRUST CO., 292 U.S. 455, 467-468. 

FN20  FOR EXAMPLE, THE RECORD IN THE INSTANT CASE CONTAINS A COPY OF
THE FOLLOWING LETTER TO A TAXPAYER FROM THE RESPONDENT'S OFFICE (WE
QUOTE THE RELEVANT PORTION): 

"GENTLEMEN:

      *         *         *         *         * 

"THE APPALACHIAN ELECTRIC POWER COMPANY 3 3/4% BONDS, 1981 SERIES,
ARE CALLABLE IN WHOLE OR IN PART THROUGH MAY OF 1953 AT 105 5/8.  THEY
ARE ALSO CALLABLE FOR SINKING FUND THROUGH FUNDS DERIVED FROM
MAINTENANCE OR SALE OF PROPERTY AT ANY TIME UPON THIRTY DAYS NOTICE
THROUGH MAY 31, 1954 AT 102 3/8.  YOU REQUEST TO BE ADVISED WHETHER THE
ABOVE-MENTIONED RULING OF JULY 30, 1952, MEANS THAT SUCH BONDS MAY BE
AMORTIZED DOWN TO 102 3/8 OR WHETHER IT MEANS THAT THEY CAN ONLY BE
AMORTIZED DOWN TO 105 5/8 THROUGH MAY OF 1953. 

"UPON THE BASIS OF THE INFORMATION ON FILE IN THIS OFFICE, IT IS THE
OPINION OF THIS OFFICE THAT A TAXPAYER ELECTING TO AMORTIZE THE PREMIUM
ON APPALACHIAN ELECTRIC POWER COMPANY BONDS IN ACCORDANCE WITH SECTION
125 OF THE CODE MAY USE THE REGULAR REDEMPTION PRICE OF 105 5/8 OR THE
SPECIAL REDEMPTION PRICE OF 102 3/8. 

                        "VERY TRULY YOURS, (ETC.)  ...  " 

FN21  IN 1956, THREE YEARS AFTER THE DEDUCTIONS IN THE PRESENT CASE
WERE TAKEN, THE COMMISSIONER - REVERSING THE POSITION HE HAD PREVIOUSLY
AND UNIFORMLY ADHERED TO IN A SERIES OF PRIVATE RULINGS - FOR THE FIRST
TIME ANNOUNCED THAT AMORTIZATION OF BOND PREMIUM UNDER SECTION 125 OF
THE 1939 CODE WAS TO BE LIMITED TO PREMIUM IN EXCESS OF A GENERAL CALL
PRICE AND COULD NOT INCLUDE PREMIUM IN EXCESS OF A LOWER SPECIAL CALL
PRICE, EXCEPT WHERE AN ACTUAL CALL WAS MADE AT THE LATTER PRICE.  INT.
REV. RUL. 56-398, 1956-2 CUM. BULL.  984. 

FN22  SEE ALSO COMMISSIONER V. KORELL, 339 U.S. 619, 627-628; LANG V.
COMMISSIONER, 289 U.S. 109, 111; OLD COLONY R. CO. V. COMMISSIONER, 284
U.S. 552, 560. 

FN23  WE BELIEVE THE COURT OF APPEALS FOR THE FIRST CIRCUIT WAS
CORRECT WHEN IT SAID IN FABREEKA PRODUCTS CO. V. COMMISSIONER, 294 F.2D
876, 879:  "GRANTING THE GOVERNMENT'S PROPOSITION THAT THESE TAXPAYERS
HAVE FOUND A HOLE IN THE DIKE, WE BELIEVE IT ONE THAT CALLS FOR THE
APPLICATION OF THE CONGRESSIONAL THUMB, NOT THE COURT'S."  SEE ALSO
EVANS V. DUDLEY, 295 F.2D 713, 715, WHERE THE THIRD CIRCUIT QUOTES THIS
LANGUAGE FROM JUDGE ALDRICH'S OPINION IN FABREEKA PRODUCTS. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






IN RE GREEN. 369 U.S. 689 


NO. 312.  ARGUED APRIL 9, 1962 - DECIDED MAY 21, 1962 - 172 OHIO ST.
269, 175 N.E.2D 59, REVERSED. 


AN EMPLOYER WHO WAS ENGAGED IN A LABOR DISPUTE WITH A UNION WHICH
DISPUTE WAS THE SUBJECT OF AN UNFAIR LABOR PRACTICE CHARGE PENDING
BEFORE THE NATIONAL LABOR RELATIONS BOARD SUED IN A STATE COURT TO
ENJOIN PEACEFUL PICKETING BY THE UNION, AND THE STATE COURT ISSUED A
RESTRAINING ORDER WITHOUT A HEARING.  PETITIONER, WHO WAS COUNSEL FOR
THE UNION, BELIEVED THAT THE EX PARTE RESTRAINING ORDER WAS INVALID
UNDER STATE LAW AND THAT THE CONTROVERSY WAS WITHIN THE EXCLUSIVE
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD, AND HE SO ADVISED
THE UNION AND ALSO ADVISED IT THAT THE BEST WAY TO TEST THE ORDER WAS
TO CONTINUE PICKETING AND, IF THE PICKETS WERE HELD IN CONTEMPT, TO
APPEAL OR TO TEST ANY ORDER OF COMMITMENT BY HABEAS CORPUS.  THE UNION
FOLLOWED PETITIONER'S ADVICE, AND THE COURT HELD PETITIONER IN CONTEMPT
FOR DISOBEYING OR RESISTING ITS RESTRAINING ORDER.  ALTHOUGH PETITIONER
WAS GIVEN AN OPPORTUNITY TO BE HEARD, HE WAS NOT ALLOWED TO TESTIFY IN
HIS OWN BEHALF, THE PROCEEDING BEING RESTRICTED TO SENTENCING HIM FOR
CONTEMPT.  HELD:  CONVICTION OF PETITIONER FOR CONTEMPT WITHOUT A
HEARING AND AN OPPORTUNITY TO ESTABLISH THAT THE STATE COURT WAS ACTING
IN A FIELD RESERVED FOR THE NATIONAL LABOR RELATIONS BOARD VIOLATED THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 689-693. 

IN RE GREEN. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A MEMBER OF THE OHIO BAR, HAS BEEN HELD IN CONTEMPT OF A
STATE COURT AND SENTENCED TO JAIL AND FINED.  HE BROUGHT THIS HABEAS
CORPUS PROCEEDING IN THE STATE COURTS CHALLENGING, INTER ALIA, THEIR
JURISDICTION TO PUNISH HIM FOR THE CONDUCT IN QUESTION.  HE WAS DENIED
RELIEF BY THE SUPREME COURT OF OHIO ON A DIVIDED VOTE, 172 OHIO ST.
269, 175 N.E.2D 59.  WE GRANTED THE PETITION FOR CERTIORARI, 368 U.S.
894. 

THE MATTER IN DISPUTE AROSE OUT OF A MANAGEMENT-LABOR CONTROVERSY. 
THE EMPLOYER SOUGHT AND OBTAINED FROM THE STATE COURT AN INJUNCTION
AGAINST PICKETING.  PETITIONER HAD BEEN RETAINED BY THE INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION TO REPRESENT THE LOCAL INVOLVED IN THIS
LABOR DISPUTE AND WHEN ADVISED BY THE CLERK OF THE COURT THAT A
PETITION FOR AN INJUNCTION HAD BEEN REQUESTED, HE SAID HE WOULD BE
READY ANY TIME FOR A HEARING.  THE INJUNCTION, HOWEVER, WAS ISSUED EX
PARTE.  PETITIONER IMMEDIATELY ASKED FOR A HEARING; BUT NONE WAS
GRANTED.  AT THE TIME THE EX PARTE INJUNCTION ISSUED, THE UNION HAD ON
FILE WITH THE NATIONAL LABOR RELATIONS BOARD AN UNFAIR LABOR PRACTICE
CHARGE, BUT NO HEARING HAD BEEN HELD ON IT. 

PETITIONER, BELIEVING THAT UNDER OHIO REV. CODE, 1954, SEC. 2727.06
THE RESTRAINING ORDER WAS INVALID BECAUSE IT WAS ISSUED WITHOUT A
HEARING AND THAT THE CONTROVERSY WAS PROPERLY ONE FOR THE NATIONAL
LABOR RELATIONS BOARD AND NOT FOR THE STATE COURT, ADVISED THE UNION
OFFICIALS THAT THE RESTRAINING ORDER WAS INVALID AND THAT THE BEST WAY
TO CONTEST IT WAS TO CONTINUE PICKETING AND, IF THE PICKETS WERE HELD
IN CONTEMPT, TO APPEAL OR TO TEST ANY ORDER OF COMMITMENT BY HABEAS
CORPUS.  THE UNION OFFICIALS AGREED ON THAT COURSE OF ACTION AND THE
PICKETING CONTINUED. 

PETITIONER AGAIN SOUGHT TO OBTAIN A HEARING ON HIS MOTION TO VACATE
THE RESTRAINING ORDER.  BUT THE JUDGE SAID NONE COULD BE HAD FOR A
WEEK.  THEREUPON PETITIONER AND OPPOSING COUNSEL AGREED TO SUBMIT FOUR
PICKETS FOR A CONTEMPT HEARING AND TO STIPULATE THE FACTS. 

HE PRODUCED THE FOUR PICKETS THE FOLLOWING DAY AND THE JUDGE HELD
THEM IN CONTEMPT, GIVING THEM TWO DAYS TO PURGE THEMSELVES.  AT THE END
OF THE TWO DAYS ANOTHER HEARING WAS HELD; THE PICKETS DID NOT PURGE
THEMSELVES.  PETITIONER MADE CLEAR AT THIS HEARING AND AT THE EARLIER
ONE THAT IT WAS HE WHO HAD ADVISED THE UNION TO TEST THE INJUNCTION BY
RISKING CONTEMPT.  THE JUDGE HELD HIM IN CONTEMPT FOR DISOBEYING OR
RESISTING "A LAWFUL WRIT, PROCESS, ORDER, RULE, JUDGMENT, OR COMMAND"
OF THE COURT.  OHIO REV. CODE, 1954, SEC. 2705.02.  WHILE AN
OPPORTUNITY WAS GIVEN PETITIONER TO BE HEARD, PETITIONER WAS NOT
ALLOWED TO TESTIFY ON HIS OWN BEHALF, THE JUDGE RULING THAT THE ONLY
PURPOSE OF THE HEARING WAS TO SENTENCE PETITIONER. 

THERE WAS A HEARING IN THE OHIO COURT OF APPEALS WHEN A PETITION FOR
HABEAS CORPUS WAS FILED; AND AT THAT HEARING THE UNDISPUTED FACTS
SHOWED THAT THE EMPLOYER WAS ENGAGED IN INTERSTATE COMMERCE, THAT WHEN
THE CONTEMPT ORDER WAS ISSUED AN UNFAIR LABOR PRACTICE CHARGE INVOLVING
THE SAME DISPUTE AS THE PICKETING WAS PENDING BEFORE THE NATIONAL LABOR
RELATIONS BOARD, AND THAT THE PICKETING WHICH HAD BEEN ENJOINED WAS
PEACEFUL PICKETING. 

RESPONDENT ARGUES THAT THE CONTROVERSY BETWEEN THE EMPLOYER AND THE
UNION INVOLVED NO ATTEMPT TO ORGANIZE WORKERS AND NO REFUSAL OF THE
EMPLOYER TO BARGAIN BUT ONLY THE ENFORCEMENT OF A "NO-STRIKE" CLAUSE IN
A COLLECTIVE BARGAINING AGREEMENT WHICH WAS LEFT BY CONGRESS EITHER TO
FEDERAL COURTS (TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448)
OR TO STATE COURTS.  TEAMSTERS LOCAL V. LUCAS FLOUR CO., 369 U.S. 95. 

PETITIONER, HOWEVER, ARGUES THAT THE UNFAIR LABOR PRACTICE CHARGE
FILED WITH THE NATIONAL LABOR RELATIONS BOARD WAS BASED ON THE REFUSAL
OF THE EMPLOYER TO BARGAIN IN GOOD FAITH AND THAT THE COLLECTIVE
BARGAINING AGREEMENT WHICH THE EMPLOYER ASKED THE STATE COURT TO
ENFORCE HAD BEEN SIGNED BY UNAUTHORIZED AGENTS. 

WE SAID IN IN RE OLIVER, 333 U.S. 257, 275, THAT PROCEDURAL DUE
PROCESS "REQUIRES THAT ONE CHARGED WITH CONTEMPT OF COURT BE ADVISED OF
THE CHARGES AGAINST HIM, HAVE A REASONABLE OPPORTUNITY TO MEET THEM BY
WAY OF DEFENSE OR EXPLANATION, HAVE THE RIGHT TO BE REPRESENTED BY
COUNSEL, AND HAVE A CHANCE TO TESTIFY AND CALL OTHER WITNESSES IN HIS
BEHALF, EITHER BY WAY OF DEFENSE OR EXPLANATION." 

PETITIONER WAS GUILTY OF NO MISCONDUCT THAT FELL WITHIN THE CATEGORY
OF ACTS WHICH CONSTITUTE CONTEMPT IN OPEN COURT, WHERE IMMEDIATE
PUNISHMENT IS NECESSARY TO PREVENT "DEMORALIZATION OF THE COURT'S
AUTHORITY"  (ID., AT 275) OR THE OTHER TYPES OF CONTEMPT CONSIDERED IN
BROWN V. UNITED STATES, 359 U.S. 41.  THE QUESTION WAS WHETHER THE
STATE COURT WAS TRENCHING ON THE FEDERAL DOMAIN.  THE ISSUE THUS
TENDERED EMPHASIZES ONE IMPORTANT FUNCTION THAT A HEARING PERFORMS.  IT
IS IMPOSSIBLE TO DETERMINE FROM THIS RECORD WHETHER OR NOT THE DISPUTE
WAS EXCLUSIVELY WITHIN THE JURISDICTION OF THE NATIONAL LABOR RELATIONS
BOARD UNDER THE PRINCIPLES OF SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236, AND AMALGAMATED ASSOCIATION V. WISCONSIN
EMPLOYMENT RELATIONS BOARD, 340 U.S. 383.  THE OHIO COURT COULD NOT
KNOW WHETHER IT WAS WITHIN BOUNDS IN CITING A PERSON FOR CONTEMPT FOR
VIOLATING THE INJUNCTION WITHOUT SUCH A HEARING.  FOR, AS AMALGAMATED
ASSOCIATION V. WISCONSIN EMPLOYMENT RELATIONS BOARD, SUPRA, HELD, A
STATE COURT IS WITHOUT POWER TO HOLD ONE IN CONTEMPT (FN1) FOR
VIOLATING AN INJUNCTION THAT THE STATE COURT HAD NO POWER TO ENTER BY
REASON OF FEDERAL PRE-EMPTION.  EVEN IF WE ASSUME THAT AN EX PARTE
ORDER COULD PROPERLY ISSUE AS A MATTER OF STATE LAW, IT VIOLATES THE
DUE PROCESS REQUIREMENTS OF THE FOURTEENTH AMENDMENT (FN2) TO CONVICT A
PERSON OF A CONTEMPT OF THIS NATURE WITHOUT A HEARING AND AN
OPPORTUNITY TO ESTABLISH THAT THE STATE COURT WAS ACTING IN A FIELD
RESERVED EXCLUSIVELY BY CONGRESS FOR THE FEDERAL AGENCY.  WHEN AN
ACTIVITY IS "ARGUABLY" SUBJECT TO THE NATIONAL BOARD THE STATES MUST
DEFER TO ITS "EXCLUSIVE COMPETENCE," "IF THE DANGER OF STATE
INTERFERENCE WITH NATIONAL POLICY IS TO BE AVERTED."  SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, SUPRA, AT 245.  REVERSED. 

FN1  ONE OF THE COMPANION CASES IN AMALGAMATED ASSOCIATION V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, SUPRA, WAS NO. 438, UNITED GAS
WORKERS V. WISCONSIN EMPLOYMENT RELATIONS BOARD, IN WHICH A CONVICTION
FOR CONTEMPT FOR NOT OBEYING A RESTRAINING ORDER ISSUED BY THE STATE
COURT (258 WIS. 1, 44 N.W.2D 547) WAS REVERSED.  340 U.S. 383, 386,
399.  THE OPINION WAS WRITTEN BY CHIEF JUSTICE VINSON WHO ALSO WROTE
THE OPINION IN UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258.  THE
LATTER CASE INVOLVED A RESTRAINING ORDER OF A FEDERAL COURT AND
PRESENTED NO QUESTION OF PRE-EMPTION OF A FIELD BY CONGRESS WHERE, IF
THE FEDERAL POLICY IS TO PREVAIL, FEDERAL POWER MUST BE COMPLETE. 

FN2  CF. EX PARTE BRADLEY, 7 WALL.  364, 375; HOVEY V. ELLIOTT, 167
U.S. 409. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING IN PART
AND CONCURRING IN PART. 

I AGREE THAT THIS CONTEMPT CONVICTION MUST BE SET ASIDE, BUT NOT FOR
THE REASONS GIVEN BY THE COURT. 

IN UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258, 289-295, THIS
COURT HELD THAT DISOBEDIENCE OF A TEMPORARY RESTRAINING ORDER ISSUED BY
A COURT WHOSE CLAIM TO JURISDICTION OVER THE UNDERLYING PROCEEDING IS
NOT FRIVOLOUS MAY BE PUNISHED AS CRIMINAL CONTEMPT EVEN IF IT IS
DETERMINED ON APPEAL THAT SUCH JURISDICTION WAS LACKING.  THIS HOLDING
WAS NOT NEW, UNITED STATES V. SHIPP, 203 U.S. 563; HOWAT V. KANSAS, 258
U.S. 181, AND IT HAS NOT BEEN DEPARTED FROM SINCE.  IT IS THE LAW OF
OHIO, OHIO CONTRACTORS ASSN. V. LOCAL 894, HOD CARRIERS' UNION, 108
OHIO APP. 395, 162 N.E.2D 155.  IT WAS ONE GROUND OF DECISION BELOW,
172 OHIO ST. 269, 274-275, 175 N.E.2D 59, 62-63, AND IS RELIED ON HERE
BY RESPONDENT.  HOWEVER, THE COURT IN ITS OPINION GIVES ONLY A PASSING
GLANCE AT THE MINE WORKERS DECISION. 

THE INJUNCTION PETITION OUT OF WHICH THIS CONTEMPT PROCEEDING AROSE
ALLEGED THAT THE POSTING OF UNION PICKETS "AND THE CALLING OF A STRIKE
BY SO DOING" VIOLATED THE NO-STRIKE CLAUSE OF A COLLECTIVE BARGAINING
AGREEMENT SIGNED BY UNION REPRESENTATIVES WHO CLAIMED AUTHORITY TO
CONTRACT.  THE ASSERTION OF STATE COURT JURISDICTION TO REDRESS
VIOLATION OF SUCH AN AGREEMENT HAS RECENTLY BEEN UPHELD IN CHARLES DOWD
BOX CO. V. COURTNEY, 368 U.S. 502, AND CAN HARDLY BE DEEMED TO HAVE
BEEN FRIVOLOUS BEFORE THAT DECISION.  IT DOES NOT BECOME FRIVOLOUS
BECAUSE AN ARGUMENT MIGHT BE MADE FOR HOLDING THE STATE COURT POWERLESS
TO ISSUE AN INJUNCTION IN SUCH A CASE, SEE DOWD BOX, SUPRA, 368 U.S.,
AT 514, N. 8, OR BECAUSE IT IS ARGUABLE EITHER THAT NO CONTRACT WAS
CONCLUDED IN THIS CASE OR THAT THE PICKETING DID NOT CONSTITUTE A
BREACH OF SUCH A CONTRACT.  LOCAL 174, TEAMSTERS UNION V. LUCAS FLOUR
CO., 369 U.S. 95, 101, MAKES CLEAR THAT THE RULE STATED IN SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, 245, OUSTING STATE
COURTS FROM DEALING IN TORT WITH ACTIVITIES EVEN ARGUABLY SUBJECT TO
SEC. 7 OR SEC. 8 OF THE NATIONAL LABOR RELATIONS ACT, DOES NOT APPLY
WHEN RELIEF IS SOUGHT FOR BREACH OF AN ALLEGED COLLECTIVE BARGAINING
AGREEMENT.  STATE JURISDICTION WAS UPHELD IN LUCAS FLOUR, ALTHOUGH THE
ACTIVITY THERE WOULD HAVE BEEN PROTECTED BY SEC. 7 IF NOT FORBIDDEN BY
A CONTRACT PROVISION WHOSE INTERPRETATION WAS FAIRLY DISPUTED, AND THUS
WAS STILL ARGUABLY PROTECTED. 

ACCORDINGLY, UNLESS MINE WORKERS IS DISTINGUISHABLE, THE STATE COURT
IN THIS INSTANCE HAD POWER TO PUNISH PETITIONER FOR CONTEMPT EVEN
THOUGH IT MAY ULTIMATELY BE DETERMINED THAT IT LACKED JURISDICTION OVER
THE INJUNCTION SUIT ITSELF.  THE COURT SEEKS TO FIND SUCH A DISTINCTION
IN THE FACT THAT MINE WORKERS INVOLVED A FEDERAL RESTRAINING ORDER,
WHEREAS IN AMALGAMATED ASSN. OF BUS EMPLOYEES V. WISCONSIN EMPLOYMENT
RELATIONS BOARD, 340 U.S. 383, WHERE STATE JURISDICTION WAS FOUND TO BE
PREEMPTED BY THE NATIONAL LABOR RELATIONS ACT, A STATE COURT
RESTRAINING ORDER PENDENTE LITE WAS SET ASIDE.  THE AMALGAMATED CASE,
HOWEVER, DID NOT INVOLVE AN ALLEGED BREACH OF A LABOR AGREEMENT.  THE
MINE WORKERS PRINCIPLE WAS NEITHER RELIED ON BY THE STATE COURT IN BUS
EMPLOYEES NOR ARGUED HERE, AND THERE IS NOTHING IN THIS COURT'S OPINION
IN THAT CASE WHICH SUGGESTS THAT THE STATE WOULD HAVE BEEN WITHOUT
POWER TO REINSTATE THE ORIGINAL CONTEMPT ORDER ON THE BASIS OF MINE
WORKERS IF THAT RULE WERE FOLLOWED IN WISCONSIN.  MOREOVER, THE COURT'S
OPINION IN THE PRESENT CASE DOES NOT ENLIGHTEN US AS TO WHY THE MINE
WORKERS PRINCIPLE SHOULD NOT OBTAIN IN A "PREEMPTION" CASE.  INDEED, I
WOULD HAVE SUPPOSED THAT IF A FEDERAL COURT CAN PRESERVE THE STATUS QUO
PENDING RESOLUTION OF A DISPUTED QUESTION AS TO ITS JURISDICTION, THE
CONSIDERATIONS IN FAVOR OF ALLOWING A STATE COURT TO TAKE SUCH ACTION
IN THE SAME SITUATION ARE AT LEAST AS STRONG, IF NOT STRONGER. 

IT IS SUGGESTED THAT THE FEDERAL POLICY BEHIND PREEMPTION OF STATE
JURISDICTION IN LABOR BOARD CASES WOULD BE FRUSTRATED IF THE MINE
WORKERS RULE WERE TO BE CONSIDERED APPLICABLE IN A CASE SUCH AS THIS. 
BUT THE POLICY UNDERLYING THE PREEMPTION DOCTRINE CANNOT WELL BE
THOUGHT STRONGER THAN THE POLICY OF THE NORRIS-LAGUARDIA ACT.  THE
RESTRAINING ORDER WAS ISSUED IN MINE WORKERS DESPITE THE COMMANDS OF
THE NORRIS-LAGUARDIA ACT - A STATUTE SPECIFICALLY DIRECTED TOWARDS
PROSCRIBING THE ISSUANCE OF INJUNCTIVE ORDERS IN LABOR DISPUTES.* 

*THE VERY ARGUMENT NOW ADVANCED HERE BY THE MAJORITY OPINION WAS MADE
BY MR. JUSTICE MURPHY, DISSENTING, IN THE MINE WORKERS CASE (330 U.S.,
AT 341):  "BUT WE ARE ACTING HERE IN THE UNIQUE FIELD OF LABOR
RELATIONS, DEALING WITH A TYPE OF ORDER WHICH CONGRESS HAS DEFINITELY
PROSCRIBED.  IF WE ARE TO HOLD THESE DEFENDANTS IN CONTEMPT FOR HAVING
VIOLATED A VOID RESTRAINING ORDER, WE MUST CLOSE OUR EYES TO THE
EXPRESSED WILL OF CONGRESS AND TO THE WHOLE HISTORY OF EQUITABLE
RESTRAINTS IN THE FIELD OF LABOR DISPUTES.  WE MUST DISREGARD THE FACT
THAT TO COMPEL ONE TO OBEY A VOID RESTRAINING ORDER IN A CASE INVOLVING
A LABOR DISPUTE AND TO REQUIRE THAT IT BE TESTED ON APPEAL IS TO
SANCTION THE USE OF THE RESTRAINING ORDER TO BREAK STRIKES - WHICH WAS
PRECISELY WHAT CONGRESS WANTED TO AVOID." 

PETITIONER'S ARGUMENT THAT THE RESTRAINING ORDER MUST BE ANCILLARY TO
A DISPUTE OVER WHICH THE COURT HAS ADMITTED JURISDICTION SCARCELY
SERVES TO EXPLAIN EITHER UNITED STATES V. SHIPP, SUPRA, IN WHICH THE
COURT ASSUMED THAT JURISDICTION OF THE ENTIRE CONTROVERSY DEPENDED ON
WHETHER THE CONSTITUTION HAD BEEN VIOLATED, OR HOWAT V. KANSAS, SUPRA,
IN WHICH THE JURISDICTION OF THE STATE COURT, APART FROM THE VALIDITY
OF THE STATUTE ATTACKED, WAS RELIED ON ONLY AS AN ALTERNATIVE HOLDING. 
WHETHER A RESTRAINING ORDER IS THUS ANCILLARY OR NOT, RESPECT FOR THE
ORDERLY PROCESS OF LAW REQUIRES OBEDIENCE TO IT UNTIL A DEBATABLE ISSUE
OF JURISDICTION CAN BE AUTHORITATIVELY DECIDED.   UNITED STATES V.
UNITED MINE WORKERS, SUPRA, 330 U.S., AT 309-310 (FRANKFURTER, J.,
CONCURRING).  PETITIONER WOULD LIMIT THE RULE TO INJUNCTIVE ORDERS
ISSUED TO PRESERVE THE STATUS QUO.  EVEN SO, THE POWER OF THE COURT TO
ACT PENDING DECISION OF THE JURISDICTIONAL ISSUE SURELY DOES NOT DEPEND
UPON WHETHER A STRIKE HAS BEGUN AN HOUR BEFORE THE COMPLAINT IS FILED
OR IS TO BEGIN AN HOUR LATER.    NEVERTHELESS, I AGREE THAT FOR A
DIFFERENT REASON PETITIONER'S CONVICTION DID NOT COMPORT WITH THE
REQUIREMENTS OF DUE PROCESS.  FOR THE RECORD SHOWS THAT THE PETITIONER
WAS DEPRIVED OF AN OPPORTUNITY TO PROVE THAT CONTEMPT PROCEEDINGS
AGAINST THE PICKETS WERE AGREED TO AMONG HIMSELF, HIS ADVERSARY, AND
THE JUDGE AS THE APPROPRIATE WAY TO TEST THE COURT'S JURISDICTION OVER
THE BASIC LAWSUIT.  PETITIONER OFFERED TO TESTIFY - AND HIS PROFFERED
TESTIMONY APPEARS NOT TO HAVE BEEN DISPUTED - THAT "I WAS CONVINCED
THAT BOTH THE JUDGE AND MR. RAGAN (OPPOSING COUNSEL) WERE AWARE THAT I
HAD CONSENTED TO BRING THESE MEN BEFORE THE COURT AND STIPULATE THE
ESSENTIAL MATTERS FOR THE EXPRESS PURPOSE OF TESTING THE VALIDITY OF
THE COURT'S ORDER AND ITS JURISDICTION OVER THE SUBJECT MATTER."  YET
PETITIONER WAS DENIED THE RIGHT TO PRESENT THIS TESTIMONY. 

I AGREE WITH THE DISSENTING JUDGE IN THE OHIO COURT OF APPEALS, 47
L.R.R.M. 2230, 2233, THAT THERE IS A VAST DIFFERENCE BETWEEN A
DEFENDANT OPENLY CONTUMACIOUS AND DEFIANT OF A COURT ORDER AND ONE WHO
DISOBEYS THE ORDER PURSUANT TO AN UNDERSTANDING WITH COURT AND COUNSEL
IN ORDER TO TEST THE UNDERLYING JURISDICTIONAL ISSUES.  IF PETITIONER'S
CONTENTIONS ARE TRUE, HE CANNOT BE PUNISHED FOR VIOLATING THE ORDER
AFTER THIS AGREEMENT, AND THEREFORE HE HAS A RIGHT TO BE HEARD.  IN RE
OLIVER, 333 U.S. 257, 275. 

ON THIS BASIS I AGREE THAT THE STATE CONTEMPT ORDER MUST BE SET
ASIDE. 
..END :
















GUZMAN V. PICHIRILO 369 U.S. 698 


NO. 358.  ARGUED MARCH 27, 1962 - DECIDED MAY 21, 1962 - 290 F.2D 812,
REVERSED. 


PETITIONER, A LONGSHOREMAN, BROUGHT SUIT IN ADMIRALTY, IN REM AGAINST
A SHIP AND IN PERSONAM AGAINST HER OWNER, TO RECOVER DAMAGES FOR
INJURIES WHICH HE CLAIMED RESULTED FROM UNSEAWORTHINESS OF THE SHIP,
WHICH HE WAS HELPING TO UNLOAD.  THE DEFENSE WAS THAT THE SHIP WAS
UNDER DEMISE CHARTER TO PETITIONER'S EMPLOYER AT ALL PERTINENT TIMES,
INCLUDING THE TIME WHEN THE UNSEAWORTHY CONDITION AROSE.  THE DISTRICT
COURT FOUND THAT THERE WAS IN FACT NO SUCH DEMISE CHARTER AND AWARDED
PETITIONER A JUDGMENT AGAINST THE SHIP AND ITS OWNER.  THE COURT OF
APPEALS REVERSED, HOLDING THAT THE SHIP WAS UNDER A DEMISE CHARTER TO
PETITIONER'S EMPLOYER, THAT THIS RELIEVED THE OWNER OF PERSONAL
RESPONSIBILITY FOR UNSEAWORTHINESS AND THAT THE SHIP WAS NOT LIABLE IN
REM BECAUSE NO PERSONAL RESPONSIBILITY COULD BE VISITED UPON EITHER THE
OWNER OR THE CHARTERER.  HELD:  THE DISTRICT COURT'S FINDINGS OF FACT
RELATIVE TO THE EXISTENCE OF A DEMISE CHARTER WERE NOT CLEARLY
ERRONEOUS, AND THE COURT OF APPEALS ERRED IN REVERSING ITS JUDGMENT. 
PP. 698-703. 

GUZMAN V. PICHIRILO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A LONGSHOREMAN, WAS INJURED WHILE UNLOADING THE M/V
CARIB, OF DOMINICAN REGISTRY, WHEN A SHACKLE BROKE CAUSING ONE OF THE
SHIP'S BOOMS TO FALL UPON AND SEVERELY INJURE HIM.  HE BROUGHT THIS
SUIT IN ADMIRALTY TO RECOVER DAMAGES RESULTING FROM THE UNSEAWORTHY
CONDITION OF THE SHIP.  THE LIBEL WAS IN REM AGAINST THE CARIB AND IN
PERSONAM AGAINST RESPONDENT PICHIRILO, HER OWNER.  THE DEFENSE WAS THAT
THE CARIB HAD BEEN DEMISED TO PETITIONER'S EMPLOYER, BORDAS & COMPANY,
AT ALL TIMES PERTINENT HERETO, INCLUDING THE TIME WHEN THE UNSEAWORTHY
CONDITION AROSE.  THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO, WHERE THE CARIB LAY, HELD AGAINST THE SHIP AND THE
RESPONDENT PICHIRILO, FINDING THERE WAS NO SUCH DEMISE, AND JUDGMENT
FOR $30,000 WAS AWARDED.  THE COURT OF APPEALS REVERSED, HOLDING THAT
THE CARIB WAS UNDER A DEMISE TO PETITIONER'S EMPLOYER, WHICH RELIEVED
THE OWNER OF PERSONAL RESPONSIBILITY FOR UNSEAWORTHINESS, AND THAT THE
CARIB WAS NOT LIABLE IN REM BECAUSE NO PERSONAL RESPONSIBILITY COULD BE
VISITED UPON EITHER THE OWNER OR THE CHARTERER.  (FN1)  290 F.2D 812. 
THERE BEING A CONFLICT ON THE LATTER POINT BETWEEN THE COURTS OF
APPEALS, SEE GRILLEA V. UNITED STATES, 232 F.2D 919 (C.A.2D CIR. 1956),
WE GRANTED CERTIORARI, 368 U.S. 895.  (FN2)  CONCLUDING THAT THE
DISTRICT COURT'S FINDINGS RELATIVE TO THE OPERATIVE FACTS OF A DEMISE
CHARTER PARTY WERE NOT CLEARLY ERRONEOUS, WE HOLD THAT THE COURT OF
APPEALS ERRED IN REVERSING ITS JUDGMENT. 

TO CREATE A DEMISE THE OWNER OF THE VESSEL MUST COMPLETELY AND
EXCLUSIVELY RELINQUISH "POSSESSION, COMMAND, AND NAVIGATION" THEREOF TO
THE DEMISEE.  UNITED STATES V. SHEA, 152 U.S. 178 (1894); LEARY V.
UNITED STATES, 14 WALL.  607 (1872); REED V. UNITED STATES, 11 WALL. 
591 (1871).  SEE GENERALLY GILMORE & BLACK, THE LAW OF ADMIRALTY, 215
219; ROBINSON, ADMIRALTY, 593-601; SCRUTTON, CHARTERPARTIES (16TH ED.,
MCNAIR & MOCATTA), 4-7.  IT IS THEREFORE TANTAMOUNT TO, THOUGH JUST
SHORT OF, AN OUTRIGHT TRANSFER OF OWNERSHIP.  HOWEVER, ANYTHING SHORT
OF SUCH A COMPLETE TRANSFER IS A TIME OR VOYAGE CHARTER PARTY OR NOT A
CHARTER PARTY AT ALL.  WHILE A DEMISE MAY BRING ABOUT A CHANGE IN THE
RESPECTIVE LEGAL OBLIGATIONS OF THE OWNER AND DEMISEE, IBID., WE NEED
NOT DECIDE HERE WHETHER IT RELIEVES THE OWNER OF HIS TRADITIONAL DUTY
TO MAINTAIN A SEAWORTHY VESSEL, FOR UNDER OUR VIEW OF THE RECORD THE
TRIAL COURT'S DETERMINATION THAT THERE WAS NO DEMISE CHARTER PARTY MUST
STAND.  (FN3)

THE OWNER WHO ATTEMPTS TO ESCAPE HIS NORMAL LIABILITY FOR THE
UNSEAWORTHINESS OF HIS VESSEL ON THE GROUND THAT HE HAS TEMPORARILY
BEEN RELIEVED OF THIS OBLIGATION HAS THE BURDEN OF ESTABLISHING THE
FACTS WHICH GIVE RISE TO SUCH RELIEF.  THUS, ASSUMING ARGUENDO THAT A
DEMISE CHARTER PARTY WOULD ISOLATE THE OWNER FROM LIABILITY, THE OWNER
HAS THE BURDEN OF SHOWING SUCH A CHARTER.  THIS BURDEN IS HEAVY, FOR
COURTS ARE RELUCTANT TO FIND A DEMISE WHEN THE DEALINGS BETWEEN THE
PARTIES ARE CONSISTENT WITH ANY LESSER RELATIONSHIP.  E.G., REED V.
UNITED STATES, SUPRA, AT 601.  TO ESTABLISH A DEMISE THE OWNER IN THE
INSTANT CASE OFFERED ONLY THE TESTIMONY OF THE DIRECTOR-PARTNER OF THE
CLAIMED DEMISEE, PETITIONER'S EMPLOYER.  (FN4)  HE TESTIFIED THAT HIS
COMPANY HAD COMPLETE CONTROL OVER AND RESPONSIBILITY FOR THE OPERATION
OF THE CARIB, IN CONSIDERATION OF WHICH THE OWNER WAS PAID $200
MONTHLY.  HE EXPLAINED THAT HIS COMPANY'S AGREEMENT WITH THE OWNER WAS
"A KIND OF CHARTER, BECAUSE IT DOES NOT COMPLY WITH THE REGULAR
PROVISIONS OF A CHARTER PARTY.  I PAY THE SEAMEN, FOOD, REPAIR,
MAINTENANCE, DRYDOCKING; WHICH IN A REGULAR CHARTER PARTY ARE
EXCLUDED."  TO NEGATE THE EXISTENCE OF A DEMISE THE PETITIONER OFFERED
THE DEPOSITION OF THE CAPTAIN OF THE CARIB, WHO TESTIFIED SIMPLY THAT
HE WAS EMPLOYED BY THE OWNER.  ON THE BASIS OF THIS EVIDENCE THE TRIAL
COURT FOUND THAT THE OWNER "WAS AT ALL TIMES MENTIONED IN THE LIBEL
...  IN POSSESSION AND CONTROL OF THE VESSEL M/V 'CARIB.'"  IN ADDITION
THAT COURT POINTED OUT THAT THE ONLY WITNESS OFFERED TO PROVE THE
EXISTENCE OF A DEMISE HAD ADMITTED THERE WAS NO CHARTER AND THAT THE
CAPTAIN OF THE VESSEL HAD TESTIFIED HE WAS WORKING FOR THE OWNER, NOT
BORDAS & CO. THE COURT OF APPEALS IN REVERSING THOUGHT THE TRIAL COURT
HAD BEEN MISLED AS TO THE LEGAL SIGNIFICANCE OF THE TESTIMONY AND THAT
THIS, AS OPPOSED TO A REFUSAL TO BELIEVE THE TESTIMONY OF THE OWNER'S
WITNESS, HAD PROMPTED IT TO CONCLUDE THERE WAS NO CHARTER. 

IT IS TRUE, AS THE COURT OF APPEALS POINTED OUT, THAT THE
EQUIVOCATION BY THE WITNESS FOR THE OWNER ON THE NATURE OF HIS
COMPANY'S ARRANGEMENT IS NOT INCONSISTENT WITH THE EXISTENCE OF A
DEMISE CHARTER PARTY, FOR THE VERY ELEMENTS HE THOUGHT MADE THE
ARRANGEMENT "A KIND OF CHARTER" ARE INHERENT IN A DEMISE CHARTER
PARTY.  SEE AUTHORITIES CITED, P. 699, SUPRA.  AND IT IS EQUALLY TRUE
THE FACT THAT THE CAPTAIN IS EMPLOYED BY THE OWNER IS NOT FATAL TO THE
CREATION OF A DEMISE CHARTER PARTY, FOR A VESSEL CAN BE DEMISED
COMPLETE WITH CAPTAIN IF HE IS SUBJECT TO THE ORDERS OF THE DEMISEE
DURING THE PERIOD OF THE DEMISE.  UNITED STATES V. SHEA, SUPRA, AT 190;
ROBINSON, OP. CIT., SUPRA, 594-595.  IF WE WERE CONVINCED, AS WAS THE
COURT OF APPEALS, THAT THE TRIAL COURT'S ACTION WAS COLORED BY A
MISUNDERSTANDING OF SUCH LEGAL PRINCIPLES, WE WOULD HAVE TO REMAND, AS
THE COURT OF APPEALS SHOULD HAVE, FOR FURTHER FINDINGS BY THE TRIAL
COURT ON THE CREDIBILITY OF THE OWNER'S WITNESS.  E.G., KWESKIN V.
FINKELSTEIN, 223 F.2D 677, 679 (C.A. 7TH CIR. 1955).  HOWEVER, WE HAVE
CONCLUDED THAT THE TRIAL COURT CLEARLY DISBELIEVED THE TESTIMONY
OFFERED BY RESPONDENT TO ESTABLISH A DEMISE CHARTER PARTY.  THE TRIAL
JUDGE NOT ONLY FOUND THAT RESPONDENT WAS IN COMPLETE POSSESSION AND
CONTROL OF THE VESSEL, WHICH IN AND OF ITSELF INDICATES DISBELIEF IN
THE WITNESS' TESTIMONY, BUT UPON THE CONCLUSION OF THE TRIAL POINTEDLY
STATED THAT HE DID NOT "BELIEVE THAT BORDAS IS THE OPERATOR OF THE
BOAT."  THIS FACTUAL FINDING, RATHER THAN BEING TAINTED BY AN ADMISSION
AS TO THE LEGAL RELATIONSHIP BETWEEN THE PARTIES, APPEARS TO FLOW FROM
THE COURT'S INTERPRETATION OF THE CAPTAIN'S TESTIMONY.  AND TO THE
EXTENT THIS FINDING WAS BASED ON SUCH TESTIMONY, IT CANNOT BE SAID TO
HAVE BEEN INFLUENCED BY AN ERRONEOUS CONCEPT OF A DEMISE CHARTER
PARTY.  FOR AS WE READ THE RECORD THE CAPTAIN'S TESTIMONY WAS
SUFFICIENTLY AMBIGUOUS FOR THE TRIAL COURT TO REASONABLY CONSTRUE IT -
AS THE COURT DID - AS SAYING HE REMAINED SUBJECT TO THE OWNER'S CONTROL
DURING THE PERIOD OF THE ALLEGED DEMISE.  VIEWED IN THIS LIGHT THE
TESTIMONY, OF COURSE, NEGATES THE EXISTENCE OF A DEMISE.  THE
DETERMINATION OF THE FACTUAL CONTENT OF AMBIGUOUS TESTIMONY IS FOR THE
TRIAL COURT, AND SUCH DETERMINATION CAN BE SET ASIDE ON REVIEW ONLY IF
"CLEARLY ERRONEOUS."  UNITED STATES V. NATIONAL ASSOCIATION OF REAL
ESTATE BOARDS, 339 U.S. 485, 495-496 (1950). 

THE "CLEARLY ERRONEOUS" RULE OF CIVIL ACTIONS IS APPLICABLE TO SUITS
IN ADMIRALTY IN GENERAL, MCALLISTER V. UNITED STATES, 348 U.S. 19, 20
(1954); SEE ROPER V. UNITED STATES, 368 U.S. 20, 23 (1961), AND TO THE
EXISTENCE OF THE OPERATIVE FACTS OF A DEMISE CHARTER PARTY IN
PARTICULAR, GARDNER V. THE CALVERT, 253 F.2D 395, 399 (C.A. 3D CIR.
1958).  UNDER THIS RULE AN APPELLATE COURT CANNOT UPSET A TRIAL COURT'S
FACTUAL FINDINGS UNLESS IT "IS LEFT WITH THE DEFINITE AND FIRM
CONVICTION THAT A MISTAKE HAS BEEN COMMITTED."  UNITED STATES V. UNITED
STATES GYPSUM CO., 333 U.S. 364, 395 (1948).   A REFUSAL TO CREDIT THE
UNCORROBORATED TESTIMONY OF THE DIRECTOR-PARTNER, WHO OBVIOUSLY WAS NOT
DISINTERESTED IN THE OUTCOME OF THE LITIGATION, WOULD NOT BE CONSIDERED
CLEARLY ERRONEOUS.  SEE, E.G., UNITED STATES V. OREGON STATE MEDICAL
SOCIETY, 343 U.S. 326, 339 (1952); MAYER V. ZIM ISRAEL NAVIGATION CO.,
289 F.2D 562, 563 (C.A.2D CIR. 1960).  THIS IS ESPECIALLY SO WHEN SUCH
TESTIMONY IS PROMPTED BY LEADING QUESTIONS AS WAS THE CASE HERE.  (FN5)
A FORTIORI THE REFUSAL TO ACCEPT SUCH TESTIMONY, DISPUTED AS IT WAS BY
THE TESTIMONY OF THE CAPTAIN, CANNOT BE CONSIDERED CLEARLY ERRONEOUS. 

SINCE THE TRIAL COURT'S DETERMINATION THAT THERE WAS NO DEMISE
CHARTER PARTY IS NOT CLEARLY ERRONEOUS, ITS HOLDING THAT THE OWNER IS
LIABLE IN PERSONAM AND THE VESSEL IN REM MUST BE REINSTATED.  THE CASE
IS THEREFORE REMANDED TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION INCLUDING THE RESOLUTION OF ANY QUESTIONS
IT MIGHT HAVE LEFT UNANSWERED ON THE ASSUMPTION THAT THERE WAS NO
LIABILITY.  REVERSED AND REMANDED. 

FN1  SINCE THE ALLEGED CHARTERER WAS PETITIONER'S EMPLOYER, ITS
LIABILITY TO HIM WAS STATUTORILY LIMITED BY THE PUERTO RICO WORKMEN'S
ACCIDENT COMPENSATION ACT.  11 L.P.R.A. SEC. 21. 

FN2  AFTER CERTIORARI WAS GRANTED IN THIS CASE, THE COURT OF APPEALS
FOR THE THIRD CIRCUIT, FACED WITH A DEMISE TO THE LONGSHOREMAN'S
EMPLOYER, ALIGNED ITSELF IN TOTO WITH THE POSITION OF THE COURT OF
APPEALS FOR THE FIRST CIRCUIT.  REED V. THE YAKA, 307 F.2D 203 (1962). 

FN3  SIMILARLY, WE DO NOT PASS ON WHETHER THE VESSEL CAN BE HELD
LIABLE IN REM WHEN NEITHER THE DEMISEE NOR THE OWNER IS PERSONALLY
LIABLE. 

FN4  OUR VIEW OF THE CASE MAKES IT UNNECESSARY TO DETERMINE WHETHER A
DEMISE CHARTER PARTY CAN BE CREATED WITHOUT A WRITTEN DOCUMENT. 

FN5  AT ONE POINT THE JUDGE INTERRUPTED THE DIRECT EXAMINATION OF THE
WITNESS TO POINT OUT HE COULD NOT "GIVE ANY CREDIT TO A WITNESS
ANSWERING LEADING QUESTIONS." 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, DISSENTING. 

CERTIORARI WAS GRANTED IN THIS CASE BECAUSE IT WAS THOUGHT THAT THE
LEGAL PRINCIPLES UNDERLYING ONE ASPECT OF THE DECISION BELOW WERE IN
CONFLICT WITH THOSE APPLIED BY THE SECOND CIRCUIT IN GRILLEA V. UNITED
STATES, 232 F.2D 919. 

THE COURT, HOWEVER, DOES NOT RESOLVE THAT CONFLICT, NOR DOES IT
DECIDE ANY OTHER QUESTION OF LAW NOT ALREADY ESTABLISHED BY ITS PAST
DECISIONS.  INSTEAD, THE JUDGMENT BELOW IS REVERSED MERELY BECAUSE THIS
COURT DISAGREES WITH THE COURT OF APPEALS' FACTUAL ESTIMATE OF THE
CASE. 

HAD THE ISSUE WHICH THE COURT DECIDES BEEN THE ONLY QUESTION TENDERED
BY THE PETITION FOR CERTIORARI, THE CASE COULD NOT WELL HAVE BEEN
REGARDED AS ONE FOR REVIEW BY THIS COURT.  SEE ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, 559 (DISSENTING OPINIONS).  TO
REVERSE IT NOW ON WHAT IS ESSENTIALLY ONLY AN EVIDENTIARY GROUND IS, IN
MY VIEW, AN IMPROVIDENT USE OF THE CERTIORARI POWER:  THE COURT HAS
DONE NO MORE THAN "TO SUBSTITUTE ITS VIEWS" FOR THOSE OF THE COURT OF
APPEALS ON PURELY FACTUAL ISSUES, REACHED UPON A FAIR ASSESSMENT OF THE
TRIAL RECORD.  352 U.S., AT 562-563.  RESPECTING THE LEGAL ISSUES WHICH
THIS COURT DOES NOT DECIDE, I THINK THAT THE COURT OF APPEALS WAS
PLAINLY CORRECT IN DECIDING THEM AS IT DID. 

I WOULD AFFIRM. 
..END :















LYNCH V. OVERHOLSER 369 U.S. 705 


NO. 159.  ARGUED JANUARY 15, 1962 - DECIDED MAY 21, 1962 - 109 U.S. APP.
D.C. 404, 288 F.2D 388, REVERSED. 


AFTER PETITIONER HAD RECEIVED TREATMENT IN A MENTAL HOSPITAL, A
PSYCHIATRIST ADVISED THE COURT THAT HE WAS ABLE TO STAND TRIAL, BUT
THAT HE WAS SUFFERING FROM A MENTAL DISEASE AND THAT FURTHER TREATMENT
WOULD BE ADVISABLE.  PETITIONER WAS THEN BROUGHT TO TRIAL IN THE
DISTRICT OF COLUMBIA ON TWO CHARGES OF PASSING WORTHLESS CHECKS.  ON
ADVICE OF COUNSEL, HE SOUGHT TO WITHDRAW AN EARLIER PLEA OF NOT GUILTY
AND TO PLEAD GUILTY TO BOTH CHARGES; BUT THE JUDGE REFUSED TO PERMIT
HIM TO DO SO.  ALTHOUGH PETITIONER MAINTAINED THAT HE WAS MENTALLY
RESPONSIBLE WHEN THE OFFENSES WERE COMMITTED AND PRESENTED NO EVIDENCE
TO SUPPORT AN ACQUITTAL BY REASON OF INSANITY, THE TRIAL JUDGE
CONCLUDED THAT HE WAS NOT GUILTY ON THE GROUND THAT HE WAS INSANE AT
THE TIME OF THE COMMISSION OF THE OFFENSE, AND ORDERED HIM COMMITTED TO
A MENTAL HOSPITAL UNDER D.C. CODE SEC. 24-301(D), WHICH PROVIDES THAT,
"IF ANY PERSON  ...  IS ACQUITTED SOLELY ON THE GROUND THAT HE WAS
INSANE AT THE TIME OF THE COMMISSION OF THE OFFENSE, THE COURT SHALL
ORDER SUCH PERSON TO BE CONFINED IN A HOSPITAL FOR THE MENTALLY ILL."
IN THIS HABEAS CORPUS PROCEEDING, HELD:  THE TRIAL COURT ERRED IN
ORDERING PETITIONER COMMITTED, BECAUSE SEC. 24-301(D) APPLIES ONLY TO A
DEFENDANT WHO BY HIS OWN ACT HAS RELIED ON A DEFENSE THAT HE WAS INSANE
WHEN THE OFFENSE WAS COMMITTED AND WHO IS ACQUITTED ON THAT GROUND. 
PP. 706-720. 

LYNCH V. OVERHOLSER, HOSPITAL SUPERINTENDENT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A HABEAS CORPUS PROCEEDING INSTITUTED IN THE DISTRICT COURT
BY PETITIONER, PRESENTLY CONFINED IN SAINT ELIZABETHS HOSPITAL FOR THE
INSANE PURSUANT TO A COMMITMENT UNDER D.C. CODE SEC. 24-301(D), TO TEST
THE LEGALITY OF HIS DETENTION.  THE DISTRICT COURT, HOLDING THAT
PETITIONER HAD BEEN UNLAWFULLY COMMITTED, DIRECTED HIS RELEASE FROM
CUSTODY UNLESS CIVIL COMMITMENT PROCEEDINGS (D.C. CODE SEC. 21-310)
WERE BEGUN WITHIN 10 DAYS OF THE COURT'S ORDER.  THE COURT OF APPEALS,
SITTING EN BANC, REVERSED BY A DIVIDED VOTE.  109 U.S. APP.  D.C. 404,
288 F.2D 388.  SINCE THE PETITION FOR CERTIORARI RAISED IMPORTANT
QUESTIONS REGARDING THE PROCEDURE FOR CONFINING THE CRIMINALLY INSANE
IN THE DISTRICT OF COLUMBIA AND SUGGESTED POSSIBLE CONSTITUTIONAL
INFIRMITIES IN SEC. 24-301(D) AS APPLIED IN THE CIRCUMSTANCES OF THIS
CASE, WE GRANTED THE WRIT.  366 U.S. 958. 

TWO INFORMATIONS FILED IN THE MUNICIPAL COURT FOR THE DISTRICT OF
COLUMBIA ON NOVEMBER 6, 1959, CHARGED PETITIONER WITH HAVING VIOLATED
D.C. CODE SEC. 22-1410 BY DRAWING AND NEGOTIATING CHECKS IN THE AMOUNT
OF $50 EACH WITH KNOWLEDGE THAT HE DID NOT HAVE SUFFICIENT FUNDS OR
CREDIT WITH THE DRAWEE BANK FOR PAYMENT.  ON THE SAME DAY, PETITIONER
APPEARED IN MUNICIPAL COURT TO ANSWER THESE CHARGES AND A PLEA OF NOT
GUILTY WAS RECORDED.  HE WAS THEREUPON COMMITTED UNDER D.C. CODE 24
301(A) TO THE DISTRICT OF COLUMBIA GENERAL HOSPITAL FOR A MENTAL
EXAMINATION TO DETERMINE HIS COMPETENCE TO STAND TRIAL.  (FN1)  ON
DECEMBER 4, 1959, THE ASSISTANT CHIEF PSYCHIATRIST OF THE HOSPITAL
REPORTED THAT PETITIONER'S MENTAL CONDITION WAS SUCH THAT HE WAS THEN
"OF UNSOUND MIND, UNABLE TO ADEQUATELY UNDERSTAND THE CHARGES AND
INCAPABLE OF ASSISTING COUNSEL IN HIS OWN DEFENSE."  THE CASE WAS
CONTINUED WHILE PETITIONER WAS GIVEN TREATMENT AT THE GENERAL
HOSPITAL. 

ON DECEMBER 28, 1959, THE ASSISTANT CHIEF PSYCHIATRIST SENT A LETTER
TO THE COURT ADVISING THAT PETITIONER HAD "SHOWN SOME IMPROVEMENT AND
AT THIS TIME APPEARS ABLE TO UNDERSTAND THE CHARGES AGAINST HIM, AND TO
ASSIST COUNSEL IN HIS OWN DEFENSE."  THIS COMMUNICATION ALSO NOTED THAT
IT WAS THE PSYCHIATRIST'S OPINION THAT PETITIONER "WAS SUFFERING FROM A
MENTAL DISEASE, I.E., A MANIC DEPRESSIVE PSYCHOSIS, AT THE TIME OF THE
CRIME CHARGED," SUCH THAT THE CRIME "WOULD BE A PRODUCT OF THIS MENTAL
DISEASE."  AS FOR PETITIONER'S CURRENT CONDITION, THE PSYCHIATRIST
ADDED THAT PETITIONER "APPEARS TO BE IN AN EARLY STAGE OF RECOVERY FROM
MANIC DEPRESSIVE PSYCHOSIS," BUT THAT IT WAS "POSSIBLE THAT HE MAY HAVE
FURTHER LAPSES OF JUDGMENT IN THE NEAR FUTURE."  HE STATED THAT IT
"WOULD BE ADVISABLE FOR HIM TO HAVE A PERIOD OF FURTHER TREATMENT IN A
PSYCHIATRIC HOSPITAL." 

PETITIONER WAS BROUGHT TO TRIAL THE FOLLOWING DAY IN THE MUNICIPAL
COURT BEFORE A JUDGE WITHOUT A JURY.  THE RECORD BEFORE US CONTAINS NO
TRANSCRIPT OF THE PROCEEDINGS, (FN2) BUT IT IS UNDISPUTED THAT
PETITIONER, REPRESENTED BY COUNSEL, SOUGHT AT THAT TIME TO WITHDRAW THE
EARLIER PLEA OF NOT GUILTY AND TO PLEAD GUILTY TO BOTH INFORMATIONS. 
THE TRIAL JUDGE REFUSED TO ALLOW THE CHANGE OF PLEA, APPARENTLY ON THE
BASIS OF THE HOSPITAL'S REPORT THAT PETITIONER'S COMMISSION OF THE
ALLEGED OFFENSES WAS THE PRODUCT OF MENTAL ILLNESS. 

AT THE TRIAL ONE OF THE PROSECUTION'S WITNESSES, A PHYSICIAN
REPRESENTING THE GENERAL HOSPITAL'S PSYCHIATRIC DIVISION, TESTIFIED,
OVER PETITIONER'S OBJECTION, THAT PETITIONER'S CRIMES HAD BEEN
COMMITTED AS A RESULT OF MENTAL ILLNESS.  ALTHOUGH PETITIONER NEVER
CLAIMED THAT HE HAD NOT BEEN MENTALLY RESPONSIBLE WHEN THE OFFENSES
WERE COMMITTED AND PRESENTED NO EVIDENCE TO SUPPORT AN ACQUITTAL BY
REASON OF INSANITY, THE TRIAL JUDGE CONCLUDED THAT PETITIONER WAS "NOT
GUILTY ON THE GROUND THAT HE WAS INSANE AT THE TIME OF THE COMMISSION
OF THE OFFENSE."  (FN3)  THE COURT THEN ORDERED THAT PETITIONER BE
COMMITTED TO SAINT ELIZABETHS HOSPITAL AS PRESCRIBED BY D.C. CODE SEC.
24-301(D), WHICH READS: 

"(D)  IF ANY PERSON TRIED UPON AN INDICTMENT OR INFORMATION FOR AN
OFFENSE, OR TRIED IN THE JUVENILE COURT OF THE DISTRICT OF COLUMBIA FOR
AN OFFENSE, IS ACQUITTED SOLELY ON THE GROUND THAT HE WAS INSANE AT THE
TIME OF ITS COMMISSION, THE COURT SHALL ORDER SUCH PERSON TO BE
CONFINED IN A HOSPITAL FOR THE MENTALLY ILL." 

THERE CAN BE NO DOUBT AS TO THE EFFECT OF THIS PROVISION WITH RESPECT
TO A DEFENDANT WHO HAS ASSERTED A DEFENSE OF INSANITY AT SOME POINT
DURING THE TRIAL.  BY ITS PLAIN TERMS IT DIRECTS CONFINEMENT IN A
MENTAL HOSPITAL OF ANY CRIMINAL DEFENDANT IN THE DISTRICT OF COLUMBIA
WHO IS "ACQUITTED SOLELY ON THE GROUND" THAT HIS OFFENSE WAS COMMITTED
WHILE HE WAS MENTALLY IRRESPONSIBLE, AND FORECLOSES THE TRIAL JUDGE
FROM EXERCISING ANY DISCRETION IN THIS REGARD.  NOR DOES THE STATUTE
REQUIRE A FINDING BY THE TRIAL JUDGE OR JURY, OR BY A MEDICAL BOARD,
WITH RESPECT TO THE ACCUSED'S MENTAL HEALTH ON THE DATE OF THE JUDGMENT
OF ACQUITTAL.  THE SOLE NECESSARY AND SUFFICIENT CONDITION FOR BRINGING
THE COMPULSORY COMMITMENT PROVISION INTO PLAY IS THAT THE DEFENDANT BE
FOUND NOT GUILTY OF THE CRIME WITH WHICH HE IS CHARGED BECAUSE OF
INSANITY "AT THE TIME OF ITS COMMISSION."  (FN4) PETITIONER DOES NOT
CONTEND THAT THE STATUTE WAS MISINTERPRETED IN THESE RESPECTS. 

PETITIONER MAINTAINS, HOWEVER, THAT HIS CONFINEMENT IS ILLEGAL FOR A
VARIETY OF OTHER REASONS, AMONG WHICH IS THE ASSERTION THAT THE
"MANDATORY COMMITMENT" PROVISION, AS APPLIED TO AN ACCUSED WHO PROTESTS
THAT HE IS PRESENTLY SANE AND THAT THE CRIME HE COMMITTED WAS NOT THE
PRODUCT OF MENTAL ILLNESS, DEPRIVES ONE SO SITUATED OF LIBERTY WITHOUT
DUE PROCESS OF LAW.  (FN5)  WE FIND IT UNNECESSARY TO CONSIDER THIS AND
OTHER CONSTITUTIONAL CLAIMS CONCERNING THE FAIRNESS OF THE MUNICIPAL
CODE PROCEEDING, SINCE WE READ SEC. 24-301(D) AS APPLICABLE ONLY TO A
DEFENDANT ACQUITTED ON THE GROUND OF INSANITY WHO HAS AFFIRMATIVELY
RELIED UPON A DEFENSE OF INSANITY, AND NOT TO ONE, LIKE THE PETITIONER,
WHO HAS MAINTAINED THAT HE WAS MENTALLY RESPONSIBLE WHEN THE ALLEGED
OFFENSE WAS COMMITTED.  (FN6) 

THE DECISIONS OF THIS COURT HAVE REPEATEDLY WARNED AGAINST THE
DANGERS OF AN APPROACH TO STATUTORY CONSTRUCTION WHICH CONFINES ITSELF
TO THE BARE WORDS OF A STATUTE, E.G., CHURCH OF THE HOLY TRINITY V.
UNITED STATES, 143 U.S. 457, 459-462; MARKHAM V. CABELL, 326 U.S. 404,
409, FOR "LITERALNESS MAY STRANGLE MEANING," UTAH JUNK CO. V. PORTER,
328 U.S. 39, 44.  HEEDING THAT PRINCIPLE WE CONCLUDE THAT TO CONSTRUE
SEC. 24-301(D) AS APPLYING ONLY TO CRIMINAL DEFENDANTS WHO HAVE
INTERPOSED A DEFENSE OF INSANITY IS MORE CONSISTENT WITH THE GENERAL
PATTERN OF LAWS GOVERNING THE CONFINEMENT OF THE MENTALLY ILL IN THE
DISTRICT OF COLUMBIA, AND WITH THE CONGRESSIONAL POLICY THAT IMPELLED
THE ENACTMENT OF THIS MANDATORY COMMITMENT PROVISION, THAN WOULD BE A
LITERAL READING OF THE SECTION.  THAT CONSTRUCTION FINDS FURTHER
SUPPORT IN THE RULE THAT A STATUTE SHOULD BE INTERPRETED, IF FAIRLY
POSSIBLE, IN SUCH A WAY AS TO FREE IT FROM NOT INSUBSTANTIAL
CONSTITUTIONAL DOUBTS.  E.G., UNITED STATES V. JIN FUEY MOY, 241 U.S.
394, 401; INTERNATIONAL ASSN. OF MACHINISTS V. STREET, 367 U.S. 740,
749.  SUCH DOUBTS MIGHT ARISE IN THIS CASE WERE THE GOVERNMENT'S
CONSTRUCTION OF SEC. 24-301(D) TO BE ACCEPTED. 

                                         I. 

TO CONSTRUE SEC. 24-301(D) AS REQUIRING A COURT, WITHOUT FURTHER
PROCEEDINGS, AUTOMATICALLY TO COMMIT A DEFENDANT WHO, AS IN THE PRESENT
CASE, HAS COMPETENTLY AND ADVISEDLY NOT TENDERED A DEFENSE OF INSANITY
TO THE CRIME CHARGED AND HAS NOT BEEN FOUND INCOMPETENT AT THE TIME OF
COMMITMENT IS OUT OF HARMONY WITH THE AWARENESS THAT CONGRESS HAS
OTHERWISE SHOWN FOR SAFEGUARDING THOSE SUSPECTED OF MENTAL INCAPACITY
AGAINST IMPROVIDENT CONFINEMENT. 

THUS, A CIVIL COMMITMENT MUST COMMENCE WITH THE FILING OF A VERIFIED
PETITION AND SUPPORTING AFFIDAVITS.  D.C. CODE SEC. 21-310.  THIS IS
FOLLOWED BY A PRELIMINARY EXAMINATION BY THE STAFF OF SAINT ELIZABETHS
HOSPITAL, A HEARING BEFORE THE COMMISSION ON MENTAL HEALTH, AND THEN
ANOTHER HEARING IN THE DISTRICT COURT, WHICH MUST BE BEFORE A JURY IF
THE PERSON BEING COMMITTED DEMANDS ONE.  D.C. CODE SEC. 21-311.  AT
BOTH OF THESE HEARINGS REPRESENTATION BY COUNSEL OR BY A GUARDIAN AD
LITEM IS NECESSARY.  DOOLING V. OVERHOLSER, 100 U.S. APP. D.C.  247,
243 F.2D 825, CONSTRUING D.C. CODE SECS. 21-308, 21-311.  THE BURDEN OF
PROOF IS ON THE PARTY SEEKING COMMITMENT, AND IT IS ONLY IF THE TRIER
OF FACT IS "SATISFIED THAT THE ALLEGED INSANE PERSON IS INSANE," THAT
HE MAY BE COMMITTED "FOR THE BEST INTEREST OF THE PUBLIC AND OF THE
INSANE PERSON."  D.C. CODE SEC. 21-315.  (FN7) 

LIKEWISE, CONGRESS HAS AFFORDED PROTECTION FROM IMPROVIDENT
COMMITMENT TO AN ACCUSED IN A CRIMINAL CASE WHO APPEARS TO THE TRIAL
COURT "FROM THE COURT'S OWN OBSERVATIONS, OR FROM PRIMA FACIE EVIDENCE
SUBMITTED TO THE COURT  ...  TO BE OF UNSOUND MIND OR  ...  MENTALLY
INCOMPETENT SO AS TO BE UNABLE TO UNDERSTAND THE PROCEEDINGS AGAINST
HIM OR PROPERLY TO ASSIST IN HIS OWN DEFENSE."  D.C. CODE SEC. 24
301(A).  IN SUCH CIRCUMSTANCES PRELIMINARY COMMITMENT FOR A "REASONABLE
PERIOD" IS AUTHORIZED IN ORDER TO PERMIT OBSERVATION AND EXAMINATION. 
IF THE MEDICAL REPORT SHOWS THAT THE ACCUSED IS OF UNSOUND MIND, THE
COURT MAY "COMMIT BY ORDER THE ACCUSED TO A HOSPITAL FOR THE MENTALLY
ILL UNLESS THE ACCUSED OR THE GOVERNMENT OBJECTS."  IN CASE OF
OBJECTION, THERE MUST BE A JUDICIAL DETERMINATION WITH RESPECT TO THE
ACCUSED'S MENTAL HEALTH, AND IT IS ONLY "IF THE COURT SHALL FIND THE
ACCUSED TO BE THEN OF UNSOUND MIND OR MENTALLY INCOMPETENT TO STAND
TRIAL" THAT AN ORDER FOR CONTINUED COMMITMENT IS PERMISSIBLE.  HENCE IF
THE ACCUSED DENIES THAT HE IS MENTALLY ILL, HE IS ENTITLED TO A
JUDICIAL DETERMINATION OF HIS PRESENT MENTAL STATE DESPITE THE HOSPITAL
BOARD'S CERTIFICATION THAT HE IS OF UNSOUND MIND.  AND IT SHOULD BE
NOTED THAT THE BURDEN RESTS WITH THE PARTY SEEKING COMMITMENT TO PROVE
THAT THE ACCUSED IS "THEN OF UNSOUND MIND."  D.C. CODE SEC. 24-301(A). 

CONSIDERING THE PRESENT CASE AGAINST THIS BACKGROUND, WE SHOULD BE
SLOW IN OUR READING OF SEC. 24-301(D) TO ATTRIBUTE TO CONGRESS A
PURPOSE TO COMPEL COMMITMENT OF AN ACCUSED WHO NEVER THROUGHOUT THE
CRIMINAL PROCEEDINGS SUGGESTS THAT HE IS, OR EVER WAS, MENTALLY
IRRESPONSIBLE.  (FN8)  THIS IS THE MORE SO WHEN THERE IS KEPT IN MIND
THE CONTRAST BETWEEN THE NATURE OF AN ACQUITTAL BY REASON OF INSANITY
AND THE FINDING OF INSANITY REQUIRED IN OTHER KINDS OF COMMITMENT
PROCEEDINGS.  IN THE DISTRICT OF COLUMBIA, AS IN ALL FEDERAL COURTS, AN
ACCUSED "IS ENTITLED TO AN ACQUITTAL OF THE SPECIFIC CRIME CHARGED IF
UPON ALL THE EVIDENCE THERE IS REASONABLE DOUBT WHETHER HE WAS CAPABLE
IN LAW OF COMMITTING CRIME."  DAVIS V. UNITED STATES, 160 U.S. 469,
484.  SEE, E.G., ISAAC V. UNITED STATES, 109 U.S. APP. D.C.  34, 284
F.2D 168.  COMPARE LELAND V. OREGON, 343 U.S. 790.  CONSEQUENTLY, THE
TRIAL JUDGE OR JURY MUST REACH A JUDGMENT OR VERDICT OF NOT GUILTY BY
REASON OF INSANITY EVEN IF THE EVIDENCE AS TO MENTAL RESPONSIBILITY AT
THE TIME THE OFFENSE WAS COMMITTED RAISES NO MORE THAN A REASONABLE
DOUBT OF SANITY.  IF SEC. 24-301(D) WERE TAKEN TO APPLY TO PETITIONER'S
SITUATION, THERE WOULD BE AN ANOMALOUS DISPARITY BETWEEN WHAT SEC. 24
301(D) COMMANDS AND WHAT SEC. 24-301(A) FORBIDS.  ON THE ONE HAND, SEC.
24-301(D) WOULD COMPEL POSTTRIAL COMMITMENT UPON THE SUGGESTION OF THE
GOVERNMENT AND OVER THE OBJECTION OF THE ACCUSED MERELY ON EVIDENCE
INTRODUCED BY THE GOVERNMENT THAT RAISES A REASONABLE DOUBT OF THE
ACCUSED'S SANITY AS OF THE TIME AT WHICH THE OFFENSE WAS COMMITTED.  ON
THE OTHER HAND, SEC. 24-301(A) WOULD PROHIBIT PRETRIAL COMMITMENT UPON
THE SUGGESTION OF THE GOVERNMENT AND OVER THE OBJECTION OF THE ACCUSED,
ALTHOUGH THE RECORD CONTAINED AN AFFIRMATIVE MEDICAL FINDING OF PRESENT
INSANITY, UNLESS THE GOVERNMENT IS ABLE TO PROVE, BY A PREPONDERANCE OF
THE EVIDENCE, THAT THE ACCUSED IS PRESENTLY OF UNSOUND MIND. 

OF COURSE THE POSTTRIAL COMMITMENT OF SEC. 24-301(D) PRESUPPOSES A
DETERMINATION THAT THE ACCUSED HAS COMMITTED THE CRIMINAL ACT WITH
WHICH HE IS CHARGED, WHEREAS PRETRIAL COMMITMENT ANTEDATES ANY SUCH
FINDING OF GUILT.  BUT THE FACT THAT THE ACCUSED HAS PLEADED GUILTY OR
THAT, OVERCOMING SOME DEFENSE OTHER THAN INSANITY, THE GOVERNMENT HAS
ESTABLISHED THAT HE COMMITTED A CRIMINAL ACT CONSTITUTES ONLY STRONG
EVIDENCE THAT HIS CONTINUED LIBERTY COULD IMPERIL "THE PRESERVATION OF
PUBLIC PEACE."  IT NO MORE RATIONALLY JUSTIFIES HIS INDETERMINATE
COMMITMENT TO A MENTAL INSTITUTION ON A BARE REASONABLE DOUBT AS TO
PAST SANITY THAN WOULD ANY OTHER COGENT PROOF OF POSSIBLE JEOPARDY TO
"THE RIGHTS OF PERSONS AND OF PROPERTY" IN ANY CIVIL COMMITMENT. 
COMPARE NOTE 7, SUPRA. 

MOREOVER, THE LITERAL CONSTRUCTION URGED HERE BY THE GOVERNMENT IS
QUITE OUT OF KEEPING WITH THE CONGRESSIONAL POLICY THAT UNDERLIES THE
ELABORATE PROCEDURAL PRECAUTIONS INCLUDED IN THE CIVIL COMMITMENT
PROVISIONS.  IT SEEMS TO HAVE BEEN CONGRESS' INTENTION TO INSURE THAT
ONLY THOSE WHO NEED TREATMENT AND MAY BE DANGEROUS ARE CONFINED;
COMMITTING A CRIMINAL DEFENDANT WHO DENIES THE EXISTENCE OF ANY MENTAL
ABNORMALITY MERELY ON THE BASIS OF A REASONABLE DOUBT AS TO HIS
CONDITION AT SOME EARLIER TIME IS SURELY AT ODDS WITH THIS POLICY. 
THE CRIMINAL DEFENDANT WHO CHOOSES TO CLAIM THAT HE WAS MENTALLY
IRRESPONSIBLE WHEN HIS OFFENSE WAS COMMITTED IS IN QUITE A DIFFERENT
POSITION.  IT IS TRUE THAT HE MAY AVOID THE ORDINARY CRIMINAL PENALTY
MERELY BY SUBMITTING ENOUGH EVIDENCE OF AN ABNORMAL MENTAL CONDITION TO
RAISE A REASONABLE DOUBT OF HIS RESPONSIBILITY AT THE TIME OF
COMMITTING THE OFFENSE.  CONGRESS MIGHT HAVE THOUGHT, HOWEVER, THAT
HAVING SUCCESSFULLY CLAIMED INSANITY TO AVOID PUNISHMENT, THE ACCUSED
SHOULD THEN BEAR THE BURDEN OF PROVING THAT HE IS NO LONGER SUBJECT TO
THE SAME MENTAL ABNORMALITY WHICH PRODUCED HIS CRIMINAL ACTS. 
ALTERNATIVELY, CONGRESS MIGHT HAVE CONSIDERED IT APPROPRIATE TO PROVIDE
COMPULSORY COMMITMENT FOR THOSE WHO SUCCESSFULLY INVOKE AN INSANITY
DEFENSE IN ORDER TO DISCOURAGE FALSE PLEAS OF INSANITY.  WE NEED GO NO
FURTHER HERE THAN TO SAY THAT SUCH DIFFERENTIATING CONSIDERATIONS ARE
PERTINENT TO ASCERTAINING THE INTENDED REACH OF THIS STATUTORY
PROVISION. 

  II. 

THE ENACTMENT OF SEC. 24-301(D) IN 1955 WAS THE DIRECT RESULT OF THE
CHANGE IN THE STANDARD OF CRIMINAL RESPONSIBILITY IN THE DISTRICT OF
COLUMBIA WROUGHT BY DURHAM V. UNITED STATES, 94 U.S. APP. D.C. 228, 214
F.2D 862.  THAT DECISION PROVOKED A CONGRESSIONAL RE-EXAMINATION OF THE
LAWS GOVERNING COMMITMENT OF THE CRIMINALLY INSANE.  "APPREHENSION THAT
DURHAM WOULD RESULT IN A FLOOD OF ACQUITTALS BY REASON OF INSANITY AND
FEAR THAT THESE DEFENDANTS WOULD BE IMMEDIATELY SET LOOSE LED TO
AGITATION FOR REMEDIAL LEGISLATION."  KRASH, THE DURHAM RULE AND
JUDICIAL ADMINISTRATION OF THE INSANITY DEFENSE IN THE DISTRICT OF
COLUMBIA, 70 YALE L.J. 905, 941 (1961).  A COMMITTEE ON MENTAL DISORDER
AS A CRIMINAL DEFENSE WAS ESTABLISHED BY THE COUNCIL ON LAW ENFORCEMENT
IN THE DISTRICT OF COLUMBIA TO INQUIRE INTO "THE SUBSTANTIVE AND
PROCEDURAL LAW OF THE DISTRICT OF COLUMBIA BEARING ON MENTAL DISORDER
AS A DEFENSE IN A CRIMINAL PROSECUTION."  S. REP. NO. 1170, 84TH CONG.,
1ST SESS. 1 (1955); H.R. REP. NO. 892, 84TH CONG., 1ST SESS. 1 (1955). 
AMONG ITS RECOMMENDATIONS WAS A MANDATORY COMMITMENT PROVISION,
SUBSEQUENTLY ENACTED AS SEC. 24-301(D).  THE COMMITTEE NOTED THAT WHILE
UNDER THE THEN EXISTING DISCRETIONARY COMMITMENT STATUTE (FN9) IT HAD
BEEN CUSTOMARY FOR THE COURT AND THE APPROPRIATE EXECUTIVE OFFICIAL TO
ORDER THE CONFINEMENT OF ALL THOSE WHO HAD BEEN FOUND NOT GUILTY SOLELY
BY REASON OF INSANITY, MORE ASSURANCE SHOULD BE GIVEN THE PUBLIC THAT
THOSE SO ACQUITTED WOULD NOT BE ALLOWED TO BE AT LARGE UNTIL THEIR
RECOVERY FROM PAST MENTAL ILLNESS HAD BEEN DEFINITELY ESTABLISHED: 

"NO RECENT CASES HAVE COME TO THE ATTENTION OF THIS COMMITTEE WHERE A
PERSON ACQUITTED IN THE DISTRICT OF COLUMBIA OF A CRIME ON THE SOLE
GROUND OF INSANITY HAS NOT BEEN COMMITTED TO A MENTAL HOSPITAL FOR
TREATMENT.  NEVERTHELESS, THE COMMITTEE IS OF THE OPINION THAT THE
PUBLIC IS ENTITLED TO KNOW THAT, IN EVERY CASE WHERE A PERSON HAS
COMMITTED A CRIME AS A RESULT OF MENTAL DISEASE OR DEFECT, SUCH PERSON
SHALL BE GIVEN A PERIOD OF HOSPITALIZATION AND TREATMENT TO GUARD
AGAINST IMMINENT RECURRENCE OF SOME CRIMINAL ACT BY THAT PERSON." 

"THE COMMITTEE BELIEVES THAT A MANDATORY COMMITMENT STATUTE WOULD ADD
MUCH TO THE PUBLIC'S PEACE OF MIND, AND TO THE PUBLIC SAFETY, WITHOUT
IMPAIRING THE RIGHTS OF THE ACCUSED.  WHERE ACCUSED HAS PLEADED
INSANITY AS A DEFENSE TO A CRIME, AND THE JURY HAS FOUND THAT THE
DEFENDANT WAS, IN FACT, INSANE AT THE TIME THE CRIME WAS COMMITTED, IT
IS JUST AND REASONABLE IN THE COMMITTEE'S OPINION THAT THE INSANITY,
ONCE ESTABLISHED, SHOULD BE PRESUMED TO CONTINUE AND THAT THE ACCUSED
SHOULD AUTOMATICALLY BE CONFINED FOR TREATMENT UNTIL IT CAN BE SHOWN
THAT HE HAS RECOVERED."  S. REP. NO. 1170, 84TH CONG., 1ST SESS. 13
(1955); H.R.  REP. NO. 892, 84TH CONG., 1ST SESS. 13 (1955). 

IT IS SIGNIFICANT TO NOTE THAT IN FINDING THAT MANDATORY COMMITMENT
WOULD NOT RESULT IN "IMPAIRING THE RIGHTS OF THE ACCUSED" AND THAT IT
WAS "JUST AND REASONABLE  ...  THAT THE INSANITY, ONCE ESTABLISHED,
SHOULD BE PRESUMED TO CONTINUE  ...  UNTIL IT CAN BE SHOWN THAT  ...
THE ACCUSED HAS RECOVERED," THE COMMITTEE REPORT, WHICH WAS EMBRACED IN
THE REPORTS OF THE SENATE AND HOUSE COMMITTEES ON THE BILL, SPOKE
ENTIRELY IN TERMS OF ONE WHO "HAS PLEADED INSANITY AS A DEFENSE TO A
CRIME."  CERTAINLY SUCH CONFIDENCE COULD HARDLY HAVE BEEN VOUCHSAFED
WITH RESPECT TO A DEFENDANT WHO, AS IN THIS CASE, HAD STOUTLY DENIED
HIS MENTAL INCOMPETENCE AT ANY TIME.  AND IT IS SURELY STRAINING THINGS
TO ASSUME THAT ANY OF THE COMMITTEES HAD IN MIND SUCH CASES AS THIS,
WHICH ARE PRESUMABLY RARE.  (FN10) 

NOR IS IT NECESSARY TO READ SEC. 24-301(D) AS AN ASSURANCE THAT AN
ACCUSED WHO REQUIRES MEDICAL TREATMENT WILL BE HOSPITALIZED RATHER THAN
BE CONFINED TO JAIL.  SIMULTANEOUSLY WITH THE MANDATORY COMMITMENT
PROVISION, CONGRESS ENACTED THE PRESENT SEC. 24-302, WHICH PERMITS
TRANSFERS OF MENTALLY ILL CONVICTS FROM PENAL INSTITUTIONS TO
HOSPITALS.  CONSEQUENTLY, IF AN ACCUSED WHO PLEADS GUILTY IS FOUND TO
BE IN NEED OF PSYCHIATRIC ASSISTANCE, HE MAY BE TRANSFERRED TO A
HOSPITAL FOLLOWING SENTENCE. 

FINALLY, IT IS NOT NECESSARY TO ACCEPT THE GOVERNMENT'S LITERAL
READING OF SEC. 24-301(D) IN ORDER TO EFFECTUATE CONGRESS' BASIC
CONCERN, IN PASSING THIS LEGISLATION, OF REASSURING THE PUBLIC. 
THOUGH FOUND COMPETENT TO STAND TRIAL, IS NONETHELESS COMMITTABLE AS A
PERSON OF UNSOUND MIND.  THAT SECTION PERMITS THE TRIAL JUDGE TO ACT
"PRIOR TO THE IMPOSITION OF SENTENCE OR PRIOR TO THE EXPIRATION OF ANY
PERIOD OF PROBATION," IF HE HAS REASON TO BELIEVE THAT THE ACCUSED "IS
OF UNSOUND MIND OR IS MENTALLY INCOMPETENT SO AS TO BE UNABLE TO
UNDERSTAND THE PROCEEDINGS AGAINST HIM."  THE STATUTE PROVIDES FOR A
PRELIMINARY EXAMINATION BY A HOSPITAL STAFF, AND THEN "IF THE COURT
SHALL FIND THE ACCUSED TO BE THEN OF UNSOUND MIND OR MENTALLY
INCOMPETENT TO STAND TRIAL, THE COURT SHALL ORDER THE ACCUSED CONFINED
TO A HOSPITAL FOR THE MENTALLY ILL."  (FN11)  THIS INQUIRY, THEREFORE,
IS NOT LIMITED TO THE ACCUSED'S COMPETENCE TO STAND TRIAL; THE JUDGE
MAY CONSIDER, AS WELL, WHETHER THE ACCUSED IS PRESENTLY COMMITTABLE AS
A PERSON OF UNSOUND MIND.  (FN12)  SINCE THIS INQUIRY MAY BE UNDERTAKEN
AT ANY TIME "PRIOR TO THE IMPOSITION OF SENTENCE," IT APPEARS TO BE AS
AVAILABLE AFTER THE JURY RETURNS A VERDICT OF NOT GUILTY BY REASON OF
INSANITY AS BEFORE TRIAL. 

IN LIGHT OF THE FOREGOING CONSIDERATIONS WE CONCLUDE THAT IT WAS NOT
CONGRESS' PURPOSE TO MAKE COMMITMENT COMPULSORY WHEN, AS HERE, AN
ACCUSED DISCLAIMS RELIANCE ON A DEFENSE OF MENTAL IRRESPONSIBILITY. 
THIS DOES NOT MEAN, OF COURSE, THAT A CRIMINAL DEFENDANT HAS AN
ABSOLUTE RIGHT TO HAVE HIS GUILTY PLEA ACCEPTED BY THE COURT.  AS
PROVIDED IN RULE 11, FED. RULES CRIM. PROC., AND RULE 9, D.C. MUNIC. 
CT. CRIM. RULES, THE TRIAL JUDGE MAY REFUSE TO ACCEPT SUCH A PLEA AND
ENTER A PLEA OF NOT GUILTY ON BEHALF OF THE ACCUSED.  WE DECIDE IN THIS
CASE ONLY THAT IF THIS IS DONE AND THE DEFENDANT, DESPITE HIS OWN
ASSERTIONS OF SANITY, IS FOUND NOT GUILTY BY REASON OF INSANITY, SEC.
24-301(D) DOES NOT APPLY.  IF COMMITMENT IS THEN CONSIDERED WARRANTED,
IT MUST BE ACCOMPLISHED EITHER BY RESORTING TO SEC. 24-301(A) OR BY
RECOURSE TO THE CIVIL COMMITMENT PROVISIONS IN TITLE 21 OF THE D.C.
CODE. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  THE RECORD DOES NOT REVEAL THE BASIS FOR THE TRIAL COURT'S
ACTION. 

FN2  DESPITE THE ABSENCE OF A TRIAL RECORD, THE DISTRICT COURT MADE
FINDINGS OF FACT RESPECTING THE PROCEEDINGS AT PETITIONER'S TRIAL, SOME
OF WHICH ARE CONTESTED BY THE PARTIES.  WE RELY ONLY UPON THOSE FACTS
THAT WERE HERE ADMITTED. 

FN3  PETITIONER DID NOT APPEAL FROM THIS JUDGMENT. 

FN4  SIMILAR STATUTES ARE FOUND IN 12 STATES, THE VIRGIN ISLANDS, AND
IN ENGLAND.  COMPARE COLO. REV. STAT. ANN. (SUPP. 1957) SEC. 39-8-4;
GA. CODE ANN., 1953, SEC. 27-1503; KAN. GEN.  STAT. ANN., 1949, SEC. 62
1532; MAINE PUB. L., 1961, C. 310; MASS. ANN. LAWS, 1957, C. 123, SEC.
101 (MURDER OR MANSLAUGHTER); MICH. STAT. ANN., 1954, SEC. 28.933(3)
(MURDER); MINN. STAT.  ANN. (SUPP. 1957) SEC. 631.19; NEB. REV. STAT.
ANN., 1943, SEC. 29-2203; NEV. REV. STAT., 1955, SEC. 175.445; N.Y.
SESS. LAWS 1960, C. 550, SECS. 1-3; OHIO REV. CODE (BALDWIN 1953) SEC.
2945.39; WIS. STAT., 1958, SEC. 957.11; V.I. CODE ANN., 1957, TIT. 5,
SEC. 3637.  THE ENGLISH PROCEDURE IS FOUND IN TRIAL OF LUNATICS ACT, 46
& 47 VICT., C. 38, S. 2 (1883). 

STATUTES UNDER WHICH COMMITMENT IS MANDATORY IF THE TRIAL JUDGE OR
JURY FINDS THAT THE ACCUSED IS PRESENTLY INSANE ARE, OF COURSE, CLEARLY
DISTINGUISHABLE.  THE FOCUS OF THE INQUIRY ON WHICH COMMITMENT TURNS IS
THE ACCUSED'S MENTAL HEALTH AS OF THE TIME OF COMMITMENT, AND THE
VERDICT OF NOT GUILTY BY REASON OF INSANITY IS MERELY EVIDENCE BEARING
ON THAT ISSUE.  CONSEQUENTLY, THE EFFECT OF THE COMPULSORY ASPECT OF
SUCH A COMMITMENT PROVISION IS BY NO MEANS COMPARABLE TO THAT INVOLVED
IN THE PRESENT CASE.  SIMILARLY, ANY DISCRETIONARY COMMITMENT STATUTE
PRESUMABLY LEAVES THE TRIAL JUDGE OR JURY FREE TO FIND THE ACCUSED
PRESENTLY SANE AND THUS ENTITLED TO FULL LIBERTY. 

FN5  IN ESSENCE THE CLAIM IS THAT SEC. 24-301(D) COMPELS THE
INDETERMINATE COMMITMENT OF SUCH A PERSON WITHOUT ANY INQUIRY AS TO HIS
PRESENT SANITY, AND SOLELY ON EVIDENCE SUFFICIENT TO WARRANT A
REASONABLE DOUBT AS TO HIS MENTAL RESPONSIBILITY AS OF THE TIME HE
COMMITTED THE OFFENSE CHARGED.  THE CLAIM IS SAID TO BE BUTTRESSED WHEN
SEC. 24-301(D) IS TAKEN IN CONJUNCTION WITH THE RIGOROUS RELEASE-FROM
CONFINEMENT PROVISIONS OF SEC. 24-301(E) AND SEC.  24-301(G) AS
CONSTRUED BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN
OVERHOLSER V. LEACH, 103 U.S. APP. D.C. 289, 257 F.2D 667; RAGSDALE V.
OVERHOLSER, 108 U.S. APP. D.C. 308, 281 F.2D 943. 

FN6  THE DEFENSE OF INSANITY NEED NOT, OF COURSE, BE ASSERTED BY
MEANS OF A FORMAL PLEA.  FED. RULES CRIM. PROC. 11, WHICH GOVERNS
PROCEEDINGS IN THE DISTRICT COURTS, PERMITS THE ENTRY OF CERTAIN
ENUMERATED PLEAS, NOT INCLUDING "NOT GUILTY BY REASON OF INSANITY," A
PLEA WHICH IS AUTHORIZED IN SOME JURISDICTIONS.  D.C. MUNIC.  CT. CRIM.
RULE 9 IS IDENTICAL TO FED. RULES CRIM. PROC. 11.  CONSEQUENTLY, A
DEFENSE OF INSANITY IN A CRIMINAL PROCEEDING IN THE DISTRICT OF
COLUMBIA MAY BE ESTABLISHED UNDER A GENERAL PLEA OF NOT GUILTY.  WE
READ SEC. 24-301(D) AS MAKING COMMITMENT MANDATORY WHENEVER THE
DEFANDANT SUCCESSFULLY RELIES, IN ANY AFFIRMATIVE WAY, ON A CLAIM THAT
HE WAS INSANE AT THE TIME OF COMMISSION OF THE CRIME OF WHICH HE IS
ACCUSED. 

FN7  A POLICE OFFICER MAY ARREST AND DETAIN ANY PERSON WHO APPEARS TO
BE OF UNSOUND MIND ON THE BELIEF THAT IF SUCH PERSON IS "PERMITTED TO
REMAIN AT LARGE OR TO GO UNRESTRAINED IN THE DISTRICT OF COLUMBIA THE
RIGHTS OF PERSONS AND OF PROPERTY WILL BE JEOPARDIZED OR THE
PRESERVATION OF PUBLIC PEACE IMPERILED AND THE COMMISSION OF CRIME
RENDERED PROBABLE."  D.C.  CODE SEC. 21-326.  HOWEVER, WITHIN 48 HOURS
OF SUCH APPREHENSION, THE PETITION THAT IS OTHERWISE REQUIRED FOR AN
INVOLUNTARY COMMITMENT MUST BE FILED, AND THE PROCEDURAL MACHINERY
WHICH FOLLOWS THE FILING OF SUCH A PETITION MUST BE SET IN MOTION. 
D.C. CODE SEC. 21-311, PAR. 3. 

FN8  IN EIGHT OF THE 13 OTHER AMERICAN JURISDICTIONS WHERE STATUTES
PROVIDING FOR MANDATORY COMMITMENT, FOLLOWING AN ACQUITTAL BY REASON OF
INSANITY, ARE IN EFFECT, SEE NOTE 4, SUPRA, THE PROVISIONS OF THE
STATUTES INDICATE THAT THEY ARE TO APPLY ONLY IF AN INSANITY DEFENSE IS
INTERPOSED BY THE ACCUSED:  COLORADO ("IN A TRIAL INVOLVING THE PLEA OF
NOT GUILTY BY REASON OF INSANITY"); GEORGIA ("IN ALL CRIMINAL TRIALS
...  WHEREIN AN ACCUSED SHALL CONTEND THAT HE WAS INSANE"); NEBRASKA
(ACCUSED "MAY PLEAD THAT HE IS NOT GUILTY BY REASON OF INSANITY OR
MENTAL DERANGEMENT"); NEVADA ("WHERE ON A TRIAL A DEFENSE OF INSANITY
IS INTERPOSED BY THE DEFENDANT"); OHIO ("WHEN A DEFENDANT PLEADS 'NOT
GUILTY BY REASON OF INSANITY'"); WISCONSIN ("NO PLEA THAT THE DEFENDANT
... WAS INSANE  ...  SHALL BE RECEIVED UNLESS IT IS INTERPOSED AT THE
TIME OF ARRAIGNMENT"); VIRGIN ISLANDS ("IF THE DEFENSE IS THE MENTAL
ILLNESS OF THE DEFENDANT").  WE HAVE NOT BEEN REFERRED TO ANY CASE IN
THE REMAINING AMERICAN JURISDICTIONS OR IN ENGLAND WHERE A MANDATORY
COMMITMENT OF THIS NATURE, FOLLOWING A PROCEEDING IN WHICH THE
DEFENDANT DID NOT INTERPOSE A DEFENSE OF INSANITY, WAS SUSTAINED. 

FN9  THE STATUTE THEN IN EFFECT PROVIDED: 

"IF THE JURY SHALL FIND THE ACCUSED TO BE THEN INSANE, OR IF AN
ACCUSED PERSON SHALL BE ACQUITTED BY THE JURY SOLELY ON THE GROUND OF
INSANITY, THE COURT MAY CERTIFY THE FACT TO THE FEDERAL SECURITY
ADMINISTRATOR, WHO MAY ORDER SUCH PERSON TO BE CONFINED IN THE HOSPITAL
FOR THE INSANE, AND SAID PERSON AND HIS ESTATE SHALL BE CHARGED WITH
THE EXPENSE OF HIS SUPPORT IN THE SAID HOSPITAL."  59 STAT. 311. 

FN10  WE HAVE BEEN TOLD OF FOUR SUCH CASES IN THE DISTRICT OF
COLUMBIA, TWO ARISING IN THE MUNICIPAL COURT AND TWO IN THE DISTRICT
COURT:  DISTRICT OF COLUMBIA V. TREMBLEY, D.C.  28343-60; UNITED STATES
V. TAYLOR, U.S. 4774-59; UNITED STATES V. KLOMAN, CRIM. NO. 383-58;
UNITED STATES V. STRICKLAND, CRIM. NO. 374-59. 

FN11  D.C. CODE SEC. 24-301(A) PROVIDES:    "(A)  WHENEVER A PERSON
IS ARRESTED, INDICTED, CHARGED BY INFORMATION, OR IS CHARGED IN THE
JUVENILE COURT OF THE DISTRICT OF COLUMBIA, FOR OR WITH AN OFFENSE AND,
PRIOR TO THE IMPOSITION OF SENTENCE OR PRIOR TO THE EXPIRATION OF ANY
PERIOD OF PROBATION, IT SHALL APPEAR TO THE COURT FROM THE COURT'S OWN
OBSERVATIONS, OR FROM PRIMA FACIE EVIDENCE SUBMITTED TO THE COURT, THAT
THE ACCUSED IS OF UNSOUND MIND OR IS MENTALLY INCOMPETENT SO AS TO BE
UNABLE TO UNDERSTAND THE PROCEEDINGS AGAINST HIM OR PROPERLY TO ASSIST
IN HIS OWN DEFENSE, THE COURT MAY ORDER THE ACCUSED COMMITTED TO THE
DISTRICT OF COLUMBIA GENERAL HOSPITAL OR OTHER MENTAL HOSPITAL
DESIGNATED BY THE COURT, FOR SUCH REASONABLE PERIOD AS THE COURT MAY
DETERMINE FOR EXAMINATION AND OBSERVATION AND FOR CARE AND TREATMENT IF
SUCH IS NECESSARY BY THE PSYCHIATRIC STAFF OF SAID HOSPITAL.  IF, AFTER
SUCH EXAMINATION AND OBSERVATION, THE SUPERINTENDENT OF THE HOSPITAL,
IN THE CASE OF A MENTAL HOSPITAL, OR THE CHIEF PSYCHIATRIST OF THE
DISTRICT OF COLUMBIA GENERAL HOSPITAL, IN THE CASE OF DISTRICT OF
COLUMBIA GENERAL HOSPITAL, SHALL REPORT THAT IN HIS OPINION THE ACCUSED
IS OF UNSOUND MIND OR MENTALLY INCOMPETENT, SUCH REPORT SHALL BE
SUFFICIENT TO AUTHORIZE THE COURT TO COMMIT BY ORDER THE ACCUSED TO A
HOSPITAL FOR THE MENTALLY ILL UNLESS THE ACCUSED OR THE GOVERNMENT
OBJECTS, IN WHICH EVENT, THE COURT, AFTER HEARING WITHOUT A JURY, SHALL
MAKE A JUDICIAL DETERMINATION OF THE COMPETENCY OF THE ACCUSED TO STAND
TRIAL.  IF THE COURT SHALL FIND THE ACCUSED TO BE THEN OF UNSOUND MIND
OR MENTALLY INCOMPETENT TO STAND TRIAL, THE COURT SHALL ORDER THE
ACCUSED CONFINED TO A HOSPITAL FOR THE MENTALLY ILL." 

FN12  COMPARE 18 U.S.C. SEC. 4244, CONSIDERED IN GREENWOOD V. UNITED
STATES, 350 U.S. 366, WHICH RELATES ONLY TO "MENTAL INCOMPETENCY AFTER
ARREST AND BEFORE TRIAL."  BY THE TERMS OF 18 U.S.C. SEC. 4246,
COMMITMENT IS TO LAST ONLY "UNTIL THE ACCUSED SHALL BE MENTALLY
COMPETENT TO STAND TRIAL OR UNTIL THE PENDING CHARGES AGAINST HIM ARE
DISPOSED OF ACCORDING TO LAW." 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE CLARK, DISSENTING. 

EIGHTY-SEVEN YEARS AGO, CHIEF JUSTICE WAITE IN SPEAKING OF THE
FUNCTION OF THIS COURT SAID: "OUR PROVINCE IS TO DECIDE WHAT THE LAW
IS, NOT TO DECLARE WHAT IT SHOULD BE  ...  .  IF THE LAW IS WRONG, IT
OUGHT TO BE CHANGED; BUT THE POWER FOR THAT IS NOT WITH US."  MINOR V.
HAPPERSETT, 21 WALL.  162, 178 (1875).  THIS HOLDING FOLLOWED AS LONG A
LINE OF CASES AS IT PRECEDED.  TODAY THE COURT SEEMS TO ME TO DO WHAT
THIS LONG-ESTABLISHED RULE OF STATUTORY INTERPRETATION FORBIDS.  WITH
SOPHISTICATED FRANKNESS IT ADMITS THAT THE DISTRICT STATUTE (FN1) "BY
ITS PLAIN TERMS  ...  DIRECTS CONFINEMENT IN A MENTAL HOSPITAL OF ANY
CRIMINAL DEFENDANT  ...  WHO IS 'ACQUITTED SOLELY ON THE GROUND' THAT
HIS OFFENSE WAS COMMITTED WHILE HE WAS MENTALLY IRRESPONSIBLE, AND
FORECLOSES THE TRIAL JUDGE FROM EXERCISING ANY DISCRETION IN THIS
REGARD."  DESPITE THESE "PLAIN TERMS" THE COURT WRITES INTO THE STATUTE
AN EXCEPTION, I.E., IT APPLIES "ONLY TO CRIMINAL DEFENDANTS WHO HAVE
INTERPOSED A DEFENSE OF INSANITY  ...  ."  IT DOES THIS DESPITE THE
FACT THAT THE PETITIONER HERE APPARENTLY MADE NO SUCH CONTENTION IN THE
TRIAL COURT.  INDEED, THOUGH HE HAD COUNSEL AT THE TIME OF HIS TRIAL IN
MUNICIPAL COURT ON TWO CHARGES OF PASSING BAD CHECKS, HE MADE NO
ATTEMPT TO APPEAL FROM THE REFUSAL OF THE COURT TO ACCEPT HIS GUILTY
PLEA AND ITS FINDING THAT HE WAS "NOT GUILTY ON THE GROUND THAT HE WAS
INSANE AT THE TIME OF THE COMMISSION OF THE OFFENSE."  AFTER BEING
COMMITTED TO ST. ELIZABETHS HOSPITAL FOR TREATMENT FOR SOME SIX MONTHS,
HE FILED THIS HABEAS CORPUS APPLICATION.  TODAY'S ACTION MAY HAVE THE
EFFECT OF SETTING HIM FREE THOUGH HE MAKES NO CLAIM THAT HE WAS SANE AT
THE TIME OF TRIAL OR IS SO AT THIS TIME.  IN FACT, THE LAST DOCTOR'S
REPORT IN THE RECORD SHOWS HIM TO BE SUFFERING FROM A MANIC DEPRESSIVE
PSYCHOSIS FROM WHICH THOUGH HE "APPEARS TO BE IN AN EARLY STAGE OF
RECOVERY" IT IS "POSSIBLE THAT HE MAY HAVE FURTHER LAPSES  ...  ."  IT
FURTHER STATES THAT IT "WOULD BE ADVISABLE FOR HIM TO HAVE A PERIOD OF
FURTHER TREATMENT IN A PSYCHIATRIC HOSPITAL."  THE ORDER TODAY RISKS
BRINGING THAT TO AN END. 

                                         I. 

THE CASE THEREFORE PRESENTS THE COMPLEX AND CHALLENGING PROBLEM OF
CRIMINAL INCOMPETENCY WITH WHICH THE PEOPLE OF THE DISTRICT OF COLUMBIA
HAVE FOR YEARS BEEN PLAGUED.  THE CONGRESS IN 1955 ADOPTED THE PRESENT
STATUTE TO MEET WHAT IT CALLED THE "SERIOUS AND DANGEROUS IMBALANCE
...  IN FAVOR OF THE ACCUSED AND AGAINST THE PUBLIC" WHICH WAS CREATED
IN PART BY THE RULE IN DURHAM V. UNITED STATES, 94 U.S. APP. D.C. 228,
214 F.2D 862 (1954).  S. REP.  NO. 1170, 84TH CONG., 1ST SESS. 3
(1955).  THE STATUTE, IN MY VIEW, IS NOT ONLY DESIGNED TO PROTECT THE
PUBLIC FROM THE CRIMINALLY INCOMPETENT BUT AT THE SAME TIME HAS THE
HUMANITARIAN PURPOSE OF AFFORDING HOSPITALIZATION FOR THOSE IN NEED OF
TREATMENT.  IT IS, THEREFORE, OF THE UTMOST IMPORTANCE TO THIS
COMMUNITY.  MOREOVER, IT HAS ITS COUNTERPART IN VARYING DEGREES IN 36
OF OUR STATES AND IN THE FEDERAL SYSTEM AS WELL, MANY OF WHICH WILL BE
AFFECTED BY THIS DECISION.  IN MY VIEW THE COURT UNDERMINES THE
PURPOSES OF THESE STATUTES; PLACES A PREMIUM ON PLEAS OF GUILTY BY
DEFENDANTS WHO WERE INSANE WHEN THEY ACTED, MADE EITHER PRO SE OR
THROUGH THEIR ATTORNEYS; AND THEREBY FORCES THE CONVICTION OF INNOCENT
PERSONS.  AND ALL OF THIS IS DONE IN THE FACE OF THE ADMITTED "PLAIN
TERMS" OF THE MANDATE OF CONGRESS UNDER THE GUISE THAT THE COURT'S
HOLDING "IS MORE CONSISTENT WITH THE GENERAL PATTERN OF LAWS GOVERNING
THE CONFINEMENT OF THE MENTALLY ILL IN THE DISTRICT OF COLUMBIA."  I
BELIEVE, HOWEVER, THAT THE CONGRESS IN ADOPTING SEC. 24-301(D) SAID
WHAT IT MEANT AND THAT IT MEANT WHAT IT SAID.  I REGRET THAT THE COURT
HAS SEEN FIT TO REPEAL THE "PLAIN TERMS" OF THIS STATUTE AND WRITE ITS
OWN POLICY INTO THE DISTRICT'S LAW.  ESPECIALLY DO I DEPLORE ITS
SUGGESTION OF DOUBT AS TO ITS CONSTITUTIONALITY.  IN THE LIGHT OF THE
CASES THIS IS CHIMERICAL.  FINDING MYSELF WITH REFERENCE TO THE OPINION
LIKE MRS. GUMMIDGE, "A LONE, LORN CREETUR' AND EVERY THINK ABOUT IT
GOES CONTRAIRY WITH ME," I RESPECTFULLY DISSENT. 

II. 

IT IS WELL TO POINT OUT FIRST WHAT IS NOT INVOLVED HERE.  FIRST, THIS
IS NOT A CIVIL COMMITMENT CASE, ALTHOUGH THIS COURT ATTEMPTS TO FORCE
ONE UPON THE PARTIES.  IN PROVIDING THE SAFEGUARDS OF D.C. CODE SEC. 21
310 AS TO THE ORDINARY CIVIL COMMITMENT OF PERSONS CLAIMED TO BE INSANE
THE CONGRESS CLEARLY ACTED IN PROTECTION OF THOSE WHO WERE NOT CHARGED
WITH CRIMINAL OFFENSES OR WHO HAD NEVER EXHIBITED ANY CRIMINAL
PROCLIVITIES.  IN PROTECTING THE PUBLIC FROM THE CRIMINALLY INCOMPETENT
IT COULD WITH REASON ACT WITH LESS CAUTION.  SEE OVERHOLSER V. LEACH,
103 U.S. APP. D.C. 289, 291, 257 F.2D 667, 669, AND KENSTRIP V. CRANOR,
39 WASH. 2D 403, 405, 235 P.2D 467, 468.  IN CRIMINAL CASES THE PERSON
COULD BE HELD IN CUSTODY IN ANY EVENT AND HUMANITARIAN PRINCIPLES
REQUIRE HIS HOSPITALIZATION WHERE NEEDED.  NOR ARE THE PROCEDURES FOR
RELEASE INVOLVED HERE.  PETITIONER HAS NOT SOUGHT HIS RELEASE UNDER THE
STATUTE.  THE PROCEDURE, HOWEVER, IS SIMPLE AND EFFECTIVE, I.E., A
DOCTOR'S CERTIFICATE RECOMMENDING RELEASE FILED WITH THE COURT IS
SUFFICIENT.  IF THE DOCTOR REFUSES SUCH CERTIFICATE, THE INMATE MAY
SEEK TO PROVE HIS SANITY ON HABEAS CORPUS.  HERE, HOWEVER, NO CLAIM OF
SANITY HAS BEEN MADE. 

NOR DOES THIS CASE INVOLVE COMMITMENT UNDER D.C. CODE SEC. 24
301(A).  THE FIRST PROVISION OF THAT SECTION LARGELY HAS TO DO WITH
CASES BEFORE TRIAL.  THE ACCUSED IS ENTITLED TO A SPEEDY TRIAL.  HE MAY
BE ACQUITTED.  HENCE HIS COMMITMENT TO A HOSPITAL WOULD DELAY THE
EFFECTUATION OF THESE RIGHTS.  THE CONGRESS, THEREFORE, PROVIDED
SAFEGUARDS, I.E., HE MIGHT OBJECT TO SUCH A COMMITMENT AND THE
CONSEQUENT DELAY OF HIS TRIAL.  BUT HERE - UNDER SEC.  24-301(D) - THE
ACCUSED HAS ALREADY HAD HIS TRIAL. 

FINALLY, THE FALLACY IN THE COURT'S POSITION IS CLEARLY APPARENT WHEN
IN AN ATTEMPT TO JUSTIFY ITS HOLDING ON PRACTICAL GROUNDS IT SAYS THAT
AN ACCUSED WHO PLEADS GUILTY AND IS SENTENCED MAY THEREAFTER BE
TRANSFERRED FROM THE PRISON TO A HOSPITAL AND THE ASSURANCES OF
HOSPITALIZATION PROVIDED BY SEC. 24-301(D) THUS AFFORDED.  THE SHORT OF
THIS IS THAT IF THE ACCUSED PLEADS GUILTY AND IS SENTENCED HE THEN MAY
SUFFER IN ADDITION TO HIS CONVICTION THE SAME FATE AS PETITIONER
SUFFERS HERE.  WITH DUE DEFERENCE, THIS IS A MOST CRUEL POSITION.  THE
ACCUSED, THOUGH INNOCENT OF THE CRIME BECAUSE OF INSANITY, PLEADS
GUILTY IN HOPES OF A SHORT JAIL SENTENCE.  HE THEN HAS THE STIGMA OF
CRIMINAL CONVICTION PERMANENTLY ON HIS RECORD.  DURING OR AFTER
SENTENCE HE IS TRANSFERRED TO THE HOSPITAL WHERE HE MAY BE RELEASED AT
THE END OF HIS SENTENCE BUT IF FOUND NOT CURED AT THAT TIME MAY STILL
BE SUBJECT TO FURTHER CUSTODY AND TREATMENT.  D.C. CODE, SEC. 24-302;
18 U.S.C. SEC. 4247. 

                                      III. 

IT HAS LONG BEEN GENERALLY ACKNOWLEDGED THAT JUSTICE DOES NOT PERMIT
PUNISHING PERSONS WITH CERTAIN MENTAL DISORDERS FOR COMMITTING ACTS
OFFENDING AGAINST THE PUBLIC PEACE AND ORDER.  BUT INSANE OFFENDERS ARE
NO LESS A MENACE TO SOCIETY FOR BEING HELD IRRESPONSIBLE, AND
RELUCTANCE TO IMPOSE BLAME ON SUCH INDIVIDUALS DOES NOT REQUIRE THEIR
RELEASE.  THE COMMUNITY HAS AN INTEREST IN PROTECTING THE PUBLIC FROM
ANTISOCIAL ACTS WHETHER COMMITTED BY SANE OR BY INSANE PERSONS.  WE
HAVE LONG RECOGNIZED THAT PERSONS WHO BECAUSE OF MENTAL ILLNESS ARE
DANGEROUS TO THEMSELVES OR TO OTHERS MAY BE RESTRAINED AGAINST THEIR
WILL IN THE INTEREST OF PUBLIC SAFETY AND TO SEEK THEIR REHABILITATION,
EVEN IF THEY HAVE DONE NOTHING PROSCRIBED BY THE CRIMINAL LAW.  THE
INSANE WHO HAVE COMMITTED ACTS OTHERWISE CRIMINAL ARE A STILL GREATER
OBJECT OF CONCERN, AS THEY HAVE DEMONSTRATED THEIR RISK TO SOCIETY.  IN
AN ATTEMPT TO DEAL WITH THESE PROBLEMS, CONGRESS HAS ENACTED SEC. 24
301(D), WHICH REQUIRES THE COURT TO ORDER A PERSON WHO HAS BEEN
ACQUITTED OF A CRIMINAL OFFENSE SOLELY ON THE GROUND THAT HE WAS INSANE
AT THE TIME OF ITS COMMISSION, TO BE CONFINED IN A HOSPITAL FOR THE
MENTALLY ILL. 

COMMITMENT TO AN INSTITUTION OF PERSONS ACQUITTED OF CRIME BECAUSE OF
INSANITY IS NO NOVELTY.  AT COMMON LAW, BEFORE 1800, THE TRIAL JUDGE
HAD POWER TO ORDER DETENTION IN PRISON OF AN ACQUITTED DEFENDANT HE
CONSIDERED DANGEROUS BECAUSE OF INSANITY.  (FN2)  HADFIELD, ACQUITTED
OF ATTEMPTED REGICIDE IN 1800 AS INSANE, WAS REMANDED TO AN ENGLISH
PRISON BECAUSE HIS FUTURE CONFINEMENT WAS "ABSOLUTELY NECESSARY FOR THE
SAFETY OF SOCIETY," 27 HOW.  ST. TR. 1281, 1354.  PARLIAMENT RESPONDED
BY PROVIDING FOR AUTOMATIC COMMITMENT TO A MENTAL INSTITUTION RATHER
THAN PRISON IN FELONY CASES IN WHICH THE ACCUSED WAS ACQUITTED ON
GROUNDS OF INSANITY, 39 & 40 GEO. III, C. 94, AND MANDATORY COMMITMENT
HAS BEEN THE RULE IN MISDEMEANOR CASES AS WELL IN ENGLAND SINCE 1883. 
46 & 47 VICT., C. 38.  AN ACCUSED ACQUITTED ON INSANITY GROUNDS IN
MASSACHUSETTS WAS REMANDED TO THE SHERIFF FOR CONTINUED CUSTODY AS
EARLY AS 1810, COMMONWEALTH V. MERIAM, 7 MASS. 168, AND IN THE DISTRICT
OF COLUMBIA, THE JUDGE BEING CONVINCED THAT "IT WOULD BE EXTREMELY
DANGEROUS TO PERMIT HIM TO BE AT LARGE," IN 1835, UNITED STATES V.
LAWRENCE, 26 FED. CAS. NO. 15,577.  THE DISTRICT OF COLUMBIA CODE OF
1901, 31 STAT. 1189, 1340, AUTHORIZED THE TRIAL JUDGE, IN HIS
DISCRETION AND WITHOUT FURTHER HEARING, TO FORWARD THE DEFENDANT'S NAME
TO AN ADMINISTRATOR, WHO, IN HIS DISCRETION, AGAIN WITHOUT HEARING,
MIGHT ORDER COMMITMENT.  MOST DEFENDANTS ACQUITTED ON INSANITY GROUNDS
WERE COMMITTED UNDER THIS RULE.  (FN3)  AT THE PRESENT TIME STATUTES
PROVIDE FOR MANDATORY COMMITMENT OF PERSONS ACQUITTED BY REASON OF
INSANITY IN 12 STATES AND THE VIRGIN ISLANDS AS WELL AS IN ENGLAND AND
THE DISTRICT OF COLUMBIA.  (FN4)  SIX STATES PERMIT COMMITMENT IN THE
DISCRETION OF THE TRIAL JUDGE.  (FN5)  EIGHTEEN MORE PROVIDE FOR
MANDATORY OR DISCRETIONARY COMMITMENT IF THE TRIAL JUDGE FINDS THAT THE
DEFENDANT'S INSANITY CONTINUES (FN6) OR THAT HIS DISCHARGE WOULD BE
DANGEROUS TO THE PUBLIC PEACE.  (FN7)  IN 10 STATES AND IN PUERTO RICO,
MANDATORY COMMITMENT FOLLOWS A LIKE FINDING BY THE TRIAL JURY (FN8) OR
BY A SECOND JURY.  (FN9)  IN THREE STATES STANDARDS FOR CIVIL
COMMITMENT MUST BE MET.  (FN10)  ONLY TENNESSEE MAKES NO PROVISION FOR
SUCH CASES.  (FN11) MANY OF THESE LAWS PROVIDING FOR COMMITMENT OF
ACQUITTED DEFENDANTS ARE BY NO MEANS NEW, SEE THE TABULATION IN GLUECK,
MENTAL DISORDER AND THE CRIMINAL LAW, 394-399 (1925), AND WITH VERY FEW
EXCEPTIONS SUCH LAWS HAVE BEEN UPHELD BY STATE COURTS AGAINST
CONSTITUTIONAL ATTACKS.  (FN12)  THE MODEL PENAL CODE OF THE AMERICAN
LAW INSTITUTE CONTAINS A PROVISION FOR MANDATORY COMMITMENT.  ALI MODEL
PENAL CODE, PROPOSED FINAL DRAFT NO. 1, SEC. 4.08.  SEE ALSO COMMENTS
ON THIS SECTION IN ID., TENTATIVE DRAFT NO. 4, P. 199.  IN PRACTICE, IT
HAS BEEN SAID DESPITE THE VARYING PROVISIONS IN THE SEVERAL
JURISDICTIONS THAT ACQUITTED DEFENDANTS ARE "NEARLY ALWAYS" COMMITTED. 
NOTE, 68 YALE L.J. 293. 
IV. 

THE COURT DOES NOT DENY THAT PETITIONER WAS TRIED FOR AN OFFENSE AND
ACQUITTED SOLELY ON THE GROUND OF INSANITY AT THE TIME OF ITS
COMMISSION.  IT ARGUES, HOWEVER, THAT THE PROCEDURE OF SEC. 24-301(D),
AS APPLIED TO A CRIMINAL DEFENDANT WHO HAS NOT PLEADED INSANITY, IS
INCONSISTENT WITH THE WHOLE SCHEME OF PROCEDURAL SAFEGUARDS PROVIDED
FOR COMMITMENT OF OTHER INDIVIDUALS TO MENTAL HOSPITALS IN THE DISTRICT
OF COLUMBIA AND THEREFORE COULD NOT HAVE BEEN INTENDED BY CONGRESS. 
BUT THE PROCEDURE OF SEC. 24-301(D) APPLIES ONLY TO DEFENDANTS FOUND
NOT GUILTY SOLELY ON THE GROUND OF INSANITY.  THAT IS, UNLIKE
DEFENDANTS COMMITTED BEFORE OR DURING THE TRIAL, SEE STATE EX REL.
SMILACK V. BUSHONG, 159 OHIO ST. 259, 111 N.E.2D 918, ALL PERSONS
COMMITTED UNDER SEC. 24-301(D) EITHER HAVE BEEN FOUND AFTER TRIAL TO
HAVE COMMITTED THE ACT ITSELF, OR, AS HERE, HAVE CONCEDED THAT THEY
COMMITTED IT.  IT IS THIS ADJUDICATION, OR THIS ADMISSION, THAT SERVES
TO EXPLAIN AND, IN CONGRESS' OPINION, TO JUSTIFY DIFFERENT TREATMENT
FOR SUCH INDIVIDUALS.  OVERHOLSER V. LEACH, 103 U.S. APP. D.C. 289, 257
F.2D 667.  WHETHER WE WOULD HAVE DRAWN THIS DISTINCTION IS NOT THE
QUESTION; IT SUFFICES THAT THE DISTINCTION WAS DRAWN AND IS NOT SO
UNTENABLE THAT WE CAN SAY CONGRESS COULD NOT REASONABLY HAVE DRAWN IT.
AND, INSOFAR AS SEC. 24-301(A) APPLIES ALSO TO THOSE WHO HAVE BEEN
TRIED AND FOUND GUILTY, IT IS NO MORE INCONSISTENT WITH MANDATORY
COMMITMENT WHERE THE DEFENDANT HAS NOT PLEADED INSANITY THAN WHERE HE
HAS DONE SO.  IN EITHER CASE CONGRESS WANTED COMMITMENT IF THE JUDGE
FOUND THE ACCUSED INSANE OR IF THE JURY ENTERTAINED A REASONABLE
DOUBT. 

                                      V. 

I AGREE WITH THE COURT THAT THE PRESENT SEC. 24-301(D) WAS THE
RESPONSE OF CONGRESS TO THE DECISION IN DURHAM V. UNITED STATES, SUPRA.
THAT DECISION SUBSTITUTED FOR THE MCNAGHTEN RULE THE SIMPLE QUESTION
WHETHER THE "UNLAWFUL ACT WAS THE PRODUCT OF MENTAL DISEASE OR MENTAL
DEFECT."  94 U.S. APP. D.C., AT 240-241, 214 F.2D, AT 874-875.  IN
AMENDING THE THEN SEC. 24-301(D), CONGRESS SOUGHT "TO PROTECT THE
PUBLIC AGAINST THE IMMEDIATE UNCONDITIONAL RELEASE OF ACCUSED PERSONS
WHO HAVE BEEN FOUND NOT RESPONSIBLE FOR A CRIME SOLELY BY REASON OF
INSANITY  ...  ."  H.R. REP. NO. 892, 84TH CONG., 1ST SESS. 3, 13
(1955); S. REP. NO. 1170, 84TH CONG., 1ST SESS. 3; 101 CONG. REC. 9258,
12229.  THIS DANGER OF IMPROVIDENT RELEASE, SO CRUCIAL IN THE EYES OF
THE CONGRESS, HAS IN FACT INHIBITED THE ADOPTION OF THE DURHAM RULE BY
OTHER COURTS IN JURISDICTIONS WHERE NO MANDATORY COMMITMENT STATUTE IS
AVAILABLE.  SAUER V. UNITED STATES, 241 F.2D 640 (C.A. 9TH CIR.);
UNITED STATES V. SMITH, 5 U.S.C.M.A. 314, 329, 17 C.M.R. 314, 329;
UNITED STATES V. CURRENS, 290 F.2D 751, 776-777, DISSENTING OPINION;
SOBELOFF, INSANITY AND THE CRIMINAL LAW:  FROM MCNAGHTEN TO DURHAM, AND
BEYOND, 41 A.B.A.J.  793, 879 (1955). 

THIS IS NOT TO SAY, HOWEVER, THAT THE SOLE PURPOSE OF SEC. 24-301(D)
IS COMMITMENT AS A PROTECTION TO THE PUBLIC.  THE POLICY OF THE LAW
ALSO INCLUDES ASSURANCE OF REHABILITATION FOR THOSE SO COMMITTED. 
RAGSDALE V. OVERHOLSER, 108 U.S. APP. D.C. 308, 312, 281 F.2D 943,
947.  THE COMMON LAW PERMITTED AN ACQUITTED INCOMPETENT TO BE CONFINED
IN THE DISTRICT OF COLUMBIA EVEN BEFORE 1901.  UNITED STATES V.
LAWRENCE, SUPRA.  THE DESIRE OF THE CONGRESS TO SATISFY ITS INTEREST IN
THE REHABILITATION OF AN INCOMPETENT DEFENDANT BROUGHT ON THE ORIGINAL
STATUTE AUTHORIZING COMMITMENT TO A MENTAL INSTITUTION.  THE 1955
AMENDMENT, HERE UNDER ATTACK, WAS DESIGNED ONLY TO STRENGTHEN THE
SAFEGUARDS TO THE PUBLIC SAFETY IN THE LIGHT OF THE INTERVENING DURHAM
RULE.  THERE CAN BE NO QUESTION THAT THE INTEREST OF A FREE SOCIETY IS
BETTER SERVED BY COMMITMENT TO HOSPITALS THAN BY IMPRISONMENT OF THE
CRIMINALLY INCOMPETENT.  WHILE, AS THE COURT POINTS OUT, TRANSFER AFTER
CONFINEMENT PERMITS TREATMENT DURING SENTENCE, IT IS NOT MANDATORY, AND
IT MAY BE INTERRUPTED BEFORE COMPLETION AND THE PATIENT SET FREE. 
ALMOST EVERY NEWSPAPER REPORTS DEPREDATIONS OF THE CRIMINALLY INSANE
WHO UNFORTUNATELY FOR THEMSELVES AND THE SAFETY OF OTHERS HAVE BEEN
RELEASED ON THE PUBLIC.  IT WAS THE PURPOSE OF THE STATUTE TO PREVENT
THIS OCCURRENCE WHETHER OR NOT THE ACCUSED PLEADS NOT GUILTY BECAUSE OF
INSANITY.  A DEFENDANT'S PLEA NEITHER PROVES NOR AFFECTS HIS GUILT OR
HIS SANITY.  TO MAKE THE COMMITMENT PROCEDURE EFFECTIVE ONLY ON THE
DEFENDANT'S OPTION LIMITS THE STATUTE'S PROTECTION OF THE PUBLIC,
FORCES AN UNFORTUNATE CHOICE ON ATTORNEYS APPOINTED TO REPRESENT
DEFENDANTS, CONVICTS THOSE WHO ARE INNOCENT BY REASON OF INSANITY AND
DEPRIVES THEM OF THE TREATMENT AFFORDED BY A HUMANITARIAN PUBLIC
POLICY.  SEE RAGSDALE V. OVERHOLSER, 108 U.S. APP. D.C. 308, 281 F.2D
943.  THE COURT SAYS THAT THIS CAN ALL BE DONE THROUGH ANOTHER TRIAL
UNDER CIVIL COMMITMENT PROCEDURES, BUT THIS IS BUT TO DISAGREE WITH THE
POLICY OF CONGRESS RATHER THAN THE COURT OF APPEALS WHICH HAS UPHELD
THE STATUTE.  AS MENTIONED, SUPRA, THE CIVIL PROCEDURES ARE ENTIRELY
INSUFFICIENT WHERE CRIMINAL ACTS ARE INVOLVED.  THE CRITERION OF SEC.
24-301(D) - MERELY WHETHER THERE IS A REASONABLE DOUBT THAT THE ACCUSED
WAS CAPABLE IN LAW OF COMMITTING THE OFFENSE - IS A FAR CRY FROM THE
TEST OF CIVIL COMMITMENT, WHERE IT MUST BE PROVEN TO THE SATISFACTION
OF THE COURT THAT THE ACCUSED IS ACTUALLY INSANE.  THE REQUIREMENT THAT
THE PETITIONER HERE GO FREE UNLESS CIVIL COMMITMENT PROCEEDINGS BE
FILED AND HE BE ADJUDGED INSANE CREATES A SERIOUS RISK THAT PETITIONER
WILL AGAIN BE TURNED LOOSE ON AN UNSUSPECTING PUBLIC TO CARRY ON HIS
CHECK-WRITING PROCLIVITIES AND PERHAPS MUCH WORSE.  HIS IS BUT ONE
EXAMPLE THAT WILL INEVITABLY FOLLOW IN THE WAKE OF THIS DECISION
TODAY. 

                                        VI. 

THE COURT DISCLAIMS THE INTENTION OF GRANTING PETITIONER AN ABSOLUTE
RIGHT TO PLEAD GUILTY.  SUCH A RIGHT WOULD BE CONTRA TO OUR CONCEPT OF
THE FAIR ADMINISTRATION OF JUSTICE AS EXEMPLIFIED IN RULE 9 OF THE
CRIMINAL RULES OF THE MUNICIPAL COURT OF THE DISTRICT OF COLUMBIA,
WHICH WAS LIFTED VERBATIM FROM RULE 11 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE.  (FN13)  IT PROVIDES EXPLICITLY THAT "THE COURT MAY REFUSE
TO ACCEPT A PLEA OF GUILTY."  AND IT FURTHER PROHIBITS THE ACCEPTANCE
OF A GUILTY PLEA WITHOUT THE COURT'S "FIRST DETERMINING THAT THE PLEA
IS MADE VOLUNTARILY WITH UNDERSTANDING OF THE NATURE OF THE CHARGE." 
THE OPINION TODAY ACKNOWLEDGES THAT THE TRIAL JUDGE NEED NOT ACCEPT THE
PLEA OF GUILTY WHEN, AS HERE, HE HAS IN HIS HANDS A CERTIFICATE FROM
COMPETENT DOCTORS THAT THE PETITIONER WAS AND REMAINS INSANE AND IN
NEED OF TREATMENT.  THE COURT EMPHASIZES AGAIN AND AGAIN THAT THE
PETITIONER NEVER AT ANY TIME DURING HIS TRIAL ON THE CHECK CHARGES
SUGGESTED THAT "HE IS, OR EVER WAS, MENTALLY IRRESPONSIBLE."  OF COURSE
HE DID NOT; HE PREFERRED TO GO TO JAIL FOR A SHORT PERIOD.  BUT THE
RIGHT OF A COURT TO REFUSE A PLEA OF GUILTY IS BASED ON THE PRINCIPLE
THAT IN A FREE SOCIETY IT IS AS IMPORTANT THAT THE COURT MAKE CERTAIN
THAT THE INNOCENT GO FREE AS IT IS THAT THE GUILTY BE PUNISHED.  THIS
THE COURT DID HERE AND DECIDED THAT A JUST DISPOSITION OF THE CASE
WOULD NOT PERMIT THE ENTRY OF THE PLEA OF GUILTY.  THAT THE EVIDENCE OF
INSANITY WAS SUFFICIENT IS NOT QUESTIONED.  AS THIS COURT HAS OFTEN
HELD, THE JUDGE "IS NOT A MERE MODERATOR, BUT IS THE GOVERNOR OF THE
TRIAL FOR THE PURPOSE OF ASSURING ITS PROPER CONDUCT ...  ."  QUERCIA
V. UNITED STATES, 289 U.S. 466, 469 (1933); GLASSER V. UNITED STATES,
315 U.S. 60, 82 (1942).  IN THE WORDS OF THE LATE AND REVERED LEARNED
HAND, "HE IS CHARGED TO SEE THAT THE LAW IS PROPERLY ADMINISTERED, AND
IT IS A DUTY WHICH HE CANNOT DISCHARGE BY REMAINING INERT."  UNITED
STATES V. MARZANO, 149 F.2D 923, 925.  AND HERE IN THE DISTRICT OF
COLUMBIA ITS COURT OF LAST RESORT, THE COURT OF APPEALS, HAS HELD THAT
THE TRIAL JUDGE IS REQUIRED TO SET ASIDE JURY FINDINGS OF SANITY WHERE
THE RECORD SHOWS A REASONABLE DOUBT.  ISAAC V. UNITED STATES, 109 U.S.
APP. D.C. 34, 284 F.2D 168.  THIS IS ONLY FURTHER INDICATION OF HIS
DUTY TO SEEK A JUST DISPOSITION OF EVERY CASE, WHICH JUSTIFIED, IF IT
DID NOT REQUIRE, THE REJECTION OF THE GUILTY PLEA HERE. 

IT WAS ALSO UNQUESTIONABLY PROPER FOR THE PROSECUTOR TO INTRODUCE
TESTIMONY OF INSANITY.  HIS FUNCTION, THIS COURT SAID IN BERGER V.
UNITED STATES, 295 U.S. 78, 88, IS TO ACT AS "THE REPRESENTATIVE NOT OF
AN ORDINARY PARTY TO A CONTROVERSY, BUT OF A SOVEREIGNTY  ...  WHOSE
INTEREST ...  IN A CRIMINAL PROSECUTION IS NOT THAT IT SHALL WIN A
CASE, BUT THAT JUSTICE SHALL BE DONE.  AS SUCH, HE IS IN A PECULIAR AND
VERY DEFINITE SENSE THE SERVANT OF THE LAW, THE TWOFOLD AIM OF WHICH IS
THAT GUILT SHALL NOT ESCAPE OR INNOCENCE SUFFER." 

THE COURT DENIES NONE OF THIS.  YET, ALTHOUGH IT STRESSES THAT THE
PURPOSE OF SEC. 24-301(D) WAS TO PROTECT THE PUBLIC FROM THE RELEASE OF
DANGEROUS PERSONS ACQUITTED AS INSANE, AND ALTHOUGH IT CONCEDES THAT A
DEFENDANT MAY BE ACQUITTED AS INSANE WITHOUT PLEADING INSANITY, THE
COURT REQUIRES A FINDING OF PRESENT INSANITY IN ORDER TO COMMIT IN SUCH
A CASE.  TO ME NEITHER THE WORDS NOR THE POLICY OF THE LAW SUPPORTS
THIS; I CANNOT BELIEVE CONGRESS THOUGHT ONLY PEOPLE WHO CLAIM TO BE
CRAZY ARE DANGEROUS ENOUGH TO BE CONFINED WITHOUT FURTHER FINDINGS. 

                   VII. 

THE COURT DID NOT REACH THE CONSTITUTIONAL ISSUE.  ITS FAILURE SO TO
DO IS, I BELIEVE, A "DISINGENUOUS EVASION," TO BORROW A PHRASE FROM MR.
JUSTICE CARDOZO IN MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373, 379
(1933).  THE COURT SHOULD NOT, AS I HAVE SAID, REWRITE A STATUTE MERELY
TO ESCAPE UPHOLDING IT AGAINST EASILY PARRIED CONSTITUTIONAL
OBJECTIONS.  I WOULD UPHOLD THE STATUTE.  I SHALL NOT GO INTO DETAILS,
HOWEVER, SINCE THE COURT DOES NOT DEAL WITH THE ISSUE.  IN SHORT,
PETITIONER HAS NO CONSTITUTIONAL RIGHT TO CHOOSE JAIL CONFINEMENT
INSTEAD OF HOSPITALIZATION.  IT IS SAID THAT AUTOMATIC HOSPITALIZATION
WITHOUT A FINDING OF PRESENT INSANITY RENDERS THE STATUTE INVALID BUT,
AS I SEE IT, CONGRESS MAY REASONABLY PREFER THE SAFETY OF COMPULSORY
HOSPITALIZATION SUBJECT TO THE RELEASE PROCEDURES OFFERED BY THE
STATUTE AND THROUGH HABEAS CORPUS.  IT IS SAID THAT THESE RELEASE
PROCEDURES ARE TOO STRICT, PLACING THE BURDEN ON THE PETITIONER.  BUT
IT APPEARS REASONABLE ONCE A JURY OR A JUDGE HAS FOUND A REASONABLE
DOUBT AS TO THE SANITY OF A MAN WHO HAS ADMITTEDLY PASSED BAD CHECKS TO
REQUIRE A DOCTOR'S CERTIFICATE TO AUTHORIZE RELEASE, AND FAILING SUCH
TO REQUIRE PROOF OF THE DOCTOR'S ERROR IN REFUSING TO ISSUE IT.  THERE
IS NO REASON TO BELIEVE THAT THE DOCTORS OR, FOR THAT MATTER, THE JUDGE
WOULD BE IMPROPERLY MOTIVATED.  RELEASE IS BY NO MEANS ILLUSORY.  IN
THE PAST SIX YEARS OVER 25% OF THOSE COMMITTED HAVE BEEN RELEASED.  IT
MUST BE REMEMBERED THAT HERE THE CONSTITUTIONALITY OF SEC. 24-301(D) IS
AT ISSUE, NOT THE WISDOM OF ITS ENACTMENT.  THAT IS FOR CONGRESS.  SO
LONG AS ITS CHOICE MEETS DUE PROCESS STANDARDS IT CANNOT BE
OVERTURNED.  THE PROBLEM WHICH FACED CONGRESS WAS THE RECONCILIATION OF
THE OPPORTUNITY FOR RELEASE OF THE ACCUSED THROUGH A JUDICIAL HEARING
WITH THE VITAL PUBLIC INTEREST, DEFERENCE TO THE VIEWS OF INSTITUTIONAL
AUTHORITIES AND A DECENT REGARD FOR THE HOSPITALIZATION AND CURE OF THE
ACCUSED.  THE BALANCE STRUCK BY CONGRESS, IN MY VIEW, MEETS THE
ESSENTIAL REQUIREMENTS OF DUE PROCESS. 

IN ANY EVENT, PETITIONER DOES NOT CLAIM THAT HE IS NOW SANE.  HE HAS
MADE NO EFFORT TO SECURE HIS RELEASE ON THE GROUND OF BEING CURED. 
SURELY HE SHOULD BE REQUIRED TO MAKE SUCH AN EFFORT BEFORE ASKING THE
COURT TO STRIKE DOWN THE STATUTE ON THAT GROUND.  MOREOVER, IF THE
BURDEN IS TOO HEAVY, RATHER THAN OPENING THE HOSPITAL DOORS TO ALL
PERSONS COMMITTED UNDER THE STATUTE, IT WOULD BE MORE FITTING TO
REWRITE THE RELEASE PROCEDURES BY SHIFTING THE BURDEN TO THE HOSPITAL
AUTHORITIES TO PROVE THE NECESSITY FOR FURTHER HOSPITALIZATION.  THE
COURT HAS NOT HESITATED TO USE A SIMILAR DEVICE IN ANOTHER AREA. 
COPPEDGE V. UNITED STATES, 369 U.S. 438.  I WOULD ALSO THINK THE COURT
WOULD PREFER TO DO THIS RATHER THAN CREATE A LOOPHOLE FOR THOSE WHO
SEEK TO PLEAD GUILTY.  IN SO DOING, THE COURT WOULD NOT FORCE THE BADGE
OF CRIMINAL CONVICTION ON INNOCENT PERSONS BUT WOULD AFFORD THEM THE
BENEFIT OF TREATMENT, SAFEGUARDED BY ENTIRELY FAIR AND REASONABLE
RELEASE PROCEDURES, AND AT THE SAME TIME AFFORD THE PUBLIC PROTECTION
FROM THOSE UNFORTUNATES AMONG US THAT KNOW NOT WHAT THEY DO.  THE COURT
HAS CHOSEN NOT TO REVERSE THE BURDEN OF PROOF; PERHAPS THE CONGRESS
WILL CONSIDER DOING SO. 

I DISSENT. 

FN1  SEC. 24-301(D), DISTRICT OF COLUMBIA CODE. 

FN2  WILLIAMS, CRIMINAL LAW:  THE GENERAL PART (2D ED. 1961), 456;
NOTE, RELEASING CRIMINAL DEFENDANTS ACQUITTED AND COMMITTED BECAUSE OF
INSANITY:  THE NEED FOR BALANCED ADMINISTRATION, 68 YALE L.J. 293
(1958); WEIHOFEN & OVERHOLSER, COMMITMENT OF THE MENTALLY ILL, 24 TEX.
L. REV.  307, 328.  IT HAS BEEN SAID THAT IN MOST CASES, NEVERTHELESS,
THE DEFENDANT WAS RELEASED.  GLUECK, MENTAL DISORDER AND THE CRIMINAL
LAW (1925), 392-393. 

FN3  SEE KRASH, THE DURHAM RULE AND JUDICIAL ADMINISTRATION OF THE
INSANITY DEFENSE IN THE DISTRICT OF COLUMBIA, 70 YALE L.J. 905, 941
(1961); S. REP. NO. 1170, 84TH CONG., 1ST SESS.  12 (1955). 

FN4  COLO. REV. STAT., 1957 SUPP., SEC. 39-8-4; D.C. CODE, 1961, SEC.
24-301; GA. CODE ANN., 1953, SEC. 27-1503; KAN. GEN. STAT. ANN., 1949,
SEC. 62-1532; ME. LAWS 1961, C. 310; MASS.  GEN. LAWS ANN., 1957, C.
123, SEC. 101 (MURDER AND MANSLAUGHTER ONLY; IN OTHER CASES, C. 278,
SEC. 13, THE TRIAL JUDGE MAY COMMIT IF SATISFIED THE DEFENDANT IS
INSANE); MICH. STAT. ANN., 1954, SEC. 28.933(3) (MURDER ONLY; IN OTHER
FELONY CASES, 1961 SUPP., SEC. 28.967, THE TRIAL JUDGE SHALL COMMIT IF,
AFTER HEARING, HE DETERMINES CONTINUING INSANITY); MINN. STAT. ANN.,
1961 SUPP., SEC. 631.19; NEB. REV. STAT., 1956, SEC. 29-2203; NEV. REV.
STAT., 1961, SEC.  175.445; N.Y. CODE OF CRIM. PROC., SEC. 454, AS
AMENDED BY LAWS 1960, C. 550; OHIO REV. CODE ANN., 1954, SEC. 2945.39;
V.I. CODE ANN., 1957, TIT. 5, SEC. 3637; WIS. STAT. ANN., 1958, SEC.
957.11 ("REHEARING" OF PRESENT SANITY AND DANGER ON REQUEST, SEE SEC.
51.11).    FN5  ARK. STAT. ANN., 1961 SUPP., SEC. 59-242 ("SHALL BE
COMMITTED  ...  UPON PROBABLE CAUSE"); CONN. GEN. STAT., 1961 SUPP.,
SEC. 54-37; DEL. CODE ANN., 1960 SUPP., TIT. 11, SEC. 4702 (ON MOTION
OF ATTORNEY GENERAL); N.M. STAT. ANN., 1953, SEC. 41-13-3; PURDON'S PA.
STAT. ANN., 1930, TIT. 19, SEC. 1351; S.C. CODE, 1952, SEC. 32-927 (ON
ACQUITTAL OR "QUESTION" OF INSANITY AT TIME OF ACT). 

FN6  MANDATORY:  ALA. CODE, 1958 RECOMPILATION, TIT. 15, SEC. 429;
BURNS' IND. STAT. ANN., 1961 SUPP., SEC. 9-1704A (OR IF RECURRANCE
"HIGHLY PROBABLE"); UTAH CODE ANN., 1953, SEC.  77-24-15; AS WELL AS
MICHIGAN IN FELONY CASES OTHER THAN MURDER, SEE NOTE 4, SUPRA.  IN
HAWAII, REV. LAWS, 1960 SUPP., SEC. 258-38, THE BURDEN IS ON THE
DEFENDANT TO SHOW RECOVERY.  IN CALIFORNIA, INSANITY IS TRIED AFTER IT
HAS BEEN DETERMINED WHETHER DEFENDANT COMMITTED THE ACT.  ON A VERDICT
OF ACQUITTAL BECAUSE OF INSANITY, THE DEFENDANT IS COMMITTED "UNLESS IT
SHALL APPEAR TO THE COURT" THAT HE HAS RECOVERED, IN WHICH CASE HE IS
HELD UNTIL DETERMINED SANE BY CIVIL PROCEDURES.  CAL. PENAL CODE, 1956,
SEC. 1026. 

DISCRETIONARY:  KY. CRIM. CODE, 1960, SEC. 268 (AFTER HEARING); W.VA.
CODE ANN., 1961, SEC. 6198 (ON REPORT OF TWO APPOINTED EXPERTS); AS
WELL AS MASSACHUSETTS IN CASES OTHER THAN MURDER, SEE NOTE 4, SUPRA. 

FN7  MANDATORY:  ALASKA COMP. LAWS ANN., 1949; SEC. 66-13-78; ORE. 
REV.  STAT., 1961, SEC. 136.730. 

DISCRETIONARY:  FLA. STAT., 1961, SEC. 919.11 (MUST CONFINE OR REMAND
TO FRIENDS' CARE); IOWA CODE ANN., 1950, SEC. 785.18; N.H. REV. STAT.
ANN., 1961 SUPP., SEC. 607:3; N.C. GEN.  STAT., 1958, SEC. 122-84
(AFTER HEARING, SHALL COMMIT IF FOUND DANGEROUS BECAUSE OF MENTAL
CONDITION, AND IF "HIS CONFINEMENT FOR CARE, TREATMENT, AND SECURITY
DEMANDS IT"); N.D. CENTURY CODE, 1960, SEC. 12-05-03; R.I. GEN. LAWS,
1956, SEC. 26-4-7 (GOVERNOR MAY COMMIT ON JUDGE'S CERTIFICATION); S.D.
CODE, 1960 SUPP., SEC. 34.3672; VT. STAT. ANN., 1958, TIT. 13, SEC.
4805; VA. CODE, 1960 REPLACEMENT, SEC. 19.1-239. 

FN8  ILL. REV. STAT., 1961, C. 38, SEC. 592 (NOT ENTIRELY AND
PERMANENTLY RECOVERED); MD.  CODE ANN., 1957, ART. 59, SEC. 8 (STILL
INSANE); MISS.  CODE ANN., 1956 RECOMPILATION, SEC.  2575 (STILL INSANE
AND DANGEROUS); MO. STAT. ANN., VERNON 1961 SUPP., SEC. 546.510 (NOT
ENTIRELY AND PERMANENTLY RECOVERED); N.J. STAT. ANN., 1953, SEC. 2A:163
3 (STILL INSANE); OKLA. STAT. ANN., 1958, C. 22, SEC. 1161 (DANGEROUS
TO DISCHARGE); VERNON'S TEX. CODE CRIM.  PROC. ANN., 1961 SUPP., ART.
932B, SEC. 1 (STILL INSANE); WASH. REV. CODE, 1951, SEC. 10.76.040
(STILL INSANE OR DANGER OF RECURRENCE). 

FN9  IDAHO CODE, 1948, SEC. 19-2320 (STILL INSANE); MONT. REV. CODE
ANN., 1947, SEC. 94-7420 (SAME); PUERTO RICO LAWS ANN., 1956, TIT. 34,
SEC. 823 (SAME).  IN ALL THREE JURISDICTIONS THE TRIAL JUDGE HAS
DISCRETION WHETHER OR NOT TO CALL THE SECOND JURY. 

FN10  IN ARIZONA, RULES OF CRIM. PROC., 1956, RULE 288, AND IN
WYOMING, STAT., 1957, SEC.  7-242, A CIVIL COMMITMENT PETITION IS
REQUIRED TO BE FILED.  IN LOUISIANA, REV. STAT., 1950, SEC. 28:59, THE
ACQUITTED DEFENDANT MAY BE COMMITTED BY THE TRIAL COURT "IN THE MANNER
PROVIDED" FOR CIVIL CIMMITMENT IN SEC. 28:53.  PRESUMABLY THIS REQUIRES
COMPLIANCE WITH THE SUBSTANTIVE STANDARDS AS WELL AS THE PROCEDURES OF
CIVIL COMMITMENT. 

FN11  APPARENTLY IN TENNESSEE THERE IS LIKEWISE NO COMMON-LAW POWER
TO CONFINE THE ACQUITTED INSANE.  SEE DOVE V. STATE, 50 TENN. 348, 373
(DICTUM).  BUT THERE APPEARS TO BE NO OBSTACLE TO INSTITUTING CIVIL
PROCEEDINGS UNDER TENN. CODE ANN., 1961 SUPP., SEC. 33-502, AND 1955
ED., SEC. 33-512. 

FN12  IN RE SLAYBACK, 209 CAL. 480, 288 P. 769; BAILEY V. STATE, 210
GA. 52, 77 S.E.2D 511; IN RE CLARK, 86 KAN. 539, 121 P. 492; IN RE
BEEBE, 92 KAN. 1026, 142 P. 269; HODISON V. ROGERS, 137 KAN. 950, 22
P.2D 491; STATE V. BURRIS, 169 LA. 520, 125 SO. 580; PEOPLE V. DUBINA,
304 MICH. 363, 8 N.W.2D 99; PEOPLE EX REL. PEABODY V. CHANLER, 133 APP.
DIV. 159, 117 N.Y. SUPP.  322; IN RE BROWN, 39 WASH. 160, 81 P. 522;
STATE V. SAFFRON, 146 WASH. 202, 262 P. 970; SEE ALSO GLEASON V. WEST
BOYLSTON, 136 MASS. 489; YANKULOV V. BUSHONG, 80 OHIO APP. 497, 77
N.E.2D 88.  SIMILAR PROCEDURES WERE STRUCK DOWN IN BROWN V. URQUHART,
139 F. 846 (C.C.W.D. WASH.); IN RE BOYETT, 136 N.C. 415, 48 S.E. 789;
AND UNDERWOOD V. PEOPLE, 32 MICH. 1.  BROWN V. URQUHART REQUIRED A
HEARING ON PRESENT SANITY AS A MATTER OF STATUTORY CONSTRUCTION AND WAS
OVERTURNED BY THE STATE COURT IN IN RE BROWN, SUPRA.  BOYETT AND
UNDERWOOD RELIED IN PART ON THE ABOLITION OF HABEAS CORPUS, NOT PRESENT
HERE, AND THE MICHIGAN COURT HAS SINCE ALLOWED A COMMITMENT STATUTE
WITH MORE ADEQUATE RELEASE PROVISIONS TO STAND, PEOPLE V. DUBINA,
SUPRA. 

FN13  RULE 9 OF THE CRIMINAL RULES OF THE MUNICIPAL COURT OF THE
DISTRICT OF COLUMBIA READS: 

"A DEFENDANT MAY PLEAD NOT GUILTY, GUILTY OR, WITH THE CONSENT OF THE
COURT NOLO CONTENDERE.  THE COURT MAY REFUSE TO ACCEPT A PLEA OF
GUILTY, AND SHALL NOT ACCEPT THE PLEA WITHOUT FIRST DETERMINING THAT
THE PLEA IS MADE VOLUNTARILY WITH UNDERSTANDING OF THE NATURE OF THE
CHARGE.  IF A DEFENDANT REFUSES TO PLEAD OR IF THE COURT REFUSES TO
ACCEPT A PLEA OF GUILTY, OR IF A DEFENDANT CORPORATION FAILS TO APPEAR,
THE COURT SHALL ENTER A PLEA OF NOT GUILTY." 
..END :











NATIONAL LABOR RELATIONS BOARD V. KATZ 369 U.S. 736 


NO. 222.  ARGUED MARCH 22, 1962 - DECIDED MAY 21, 1962 - 289 F.2D 700,
REVERSED. 


WHILE BONA FIDE CONTRACT NEGOTIATIONS WITH A UNION REPRESENTING ITS
EMPLOYEES WERE BEING CARRIED ON, THE EMPLOYER, UNILATERALLY AND WITHOUT
FIRST CONSULTING THE UNION, PUT INTO EFFECT A NEW SYSTEM OF AUTOMATIC
WAGE INCREASES, CHANGES IN SICK-LEAVE BENEFITS AND NUMEROUS MERIT
INCREASES, ALTHOUGH SUCH MATTERS WERE SUBJECTS OF THE PENDING CONTRACT
NEGOTIATIONS.  HELD:  BY SO DOING, THE EMPLOYER VIOLATED THE DUTY "TO
BARGAIN COLLECTIVELY" IMPOSED BY SEC. 8(A)(5) OF THE NATIONAL LABOR
RELATIONS ACT.  PP. 737-748. 

(A)  ON THE RECORD IN THIS CASE, THE NATIONAL LABOR RELATIONS BOARD
WAS JUSTIFIED IN FINDING THAT THE EMPLOYER'S UNILATERAL ACTION WAS
TAKEN BEFORE THE CONTRACT NEGOTIATIONS WERE DISCONTINUED AND BEFORE THE
EXISTENCE OF ANY POSSIBLE IMPASSE.  PP. 741-742. 

(B)  EVEN IN THE ABSENCE OF A FINDING OF OVER-ALL SUBJECTIVE BAD
FAITH, AN EMPLOYER'S UNILATERAL CHANGE IN CONDITIONS OF EMPLOYMENT
UNDER NEGOTIATION VIOLATES SEC. 8(A)(5), FOR IT IS A CIRCUMVENTION OF
THE DUTY TO NEGOTIATE WHICH FRUSTRATES THE OBJECTIVES OF SEC. 8(A)(5)
AS MUCH AS WOULD A FLAT REFUSAL TO NEGOTIATE.  PP. 742-743. 

(C)  THE UNILATERAL CHANGES IN SICK-LEAVE BENEFITS PLAINLY FRUSTRATED
THE STATUTORY OBJECTIVE OF ESTABLISHING WORKING CONDITIONS THROUGH
COLLECTIVE BARGAINING AND VIOLATED SEC. 8(A)(5).  PP. 744. 

(D)  THE EMPLOYER'S GRANT OF WAGE INCREASES GREATER THAN ANY HE HAD
EVER OFFERED THE UNION AT THE BARGAINING TABLE WAS NECESSARILY
INCONSISTENT WITH A SINCERE DESIRE TO CONCLUDE AN AGREEMENT WITH THE
UNION, AND IT VIOLATED SEC. 8(A)(5).  PP. 744-745. 

(E)  THE EMPLOYER'S UNILATERAL ACTION IN GRANTING DISCRETIONARY MERIT
INCREASES TO 20 EMPLOYEES WAS TANTAMOUNT TO AN OUTRIGHT REFUSAL TO
NEGOTIATE ON THAT SUBJECT, AND IT VIOLATED SEC. 8(A)(5).  PP. 745-747. 

(F)  LABOR BOARD V. INSURANCE AGENTS' UNION, 361 U.S. 477,
DISTINGUISHED.  PP. 747-748. 

NATIONAL LABOR RELATIONS BOARD V. KATZ ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IS IT A VIOLATION OF THE DUTY "TO BARGAIN COLLECTIVELY" IMPOSED BY
SEC. 8(A)(5) OF THE NATIONAL LABOR RELATIONS ACT (FN1) FOR AN EMPLOYER,
WITHOUT FIRST CONSULTING A UNION WITH WHICH IT IS CARRYING ON BONA FIDE
CONTRACT NEGOTIATIONS, TO INSTITUTE CHANGES REGARDING MATTERS WHICH ARE
SUBJECTS OF MANDATORY BARGAINING UNDER SEC. 8(D) AND WHICH ARE IN FACT
UNDER DISCUSSION?  (FN2) THE NATIONAL LABOR RELATIONS BOARD ANSWERED
THE QUESTION AFFIRMATIVELY IN THIS CASE, IN A DECISION WHICH EXPRESSLY
DISCLAIMED ANY FINDING THAT THE TOTALITY OF THE RESPONDENTS' CONDUCT
MANIFESTED BAD FAITH IN THE PENDING NEGOTIATIONS.  (FN3)  126 N.L.R.B.
288.  A DIVIDED PANEL OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT
DENIED ENFORCEMENT OF THE BOARD'S CEASE-AND-DESIST ORDER, FINDING IN
OUR DECISION IN LABOR BOARD V. INSURANCE AGENTS' UNION, 361 U.S. 477, A
BROAD RULE THAT THE STATUTORY DUTY TO BARGAIN CANNOT BE HELD TO BE
VIOLATED, WHEN BARGAINING IS IN FACT BEING CARRIED ON, WITHOUT A
FINDING OF THE RESPONDENT'S SUBJECTIVE BAD FAITH IN NEGOTIATING.  289
F.2D 700.  (FN4)  THE COURT OF APPEALS SAID: 

"WE ARE OF THE OPINION THAT THE UNILATERAL ACTS HERE COMPLAINED OF,
OCCURRING AS THEY DID DURING THE NEGOTIATING OF A COLLECTIVE BARGAINING
AGREEMENT, DO NOT PER SE CONSTITUTE A REFUSAL TO BARGAIN COLLECTIVELY
AND PER SE ARE NOT VIOLATIVE OF SEC. 8(A)(5).  WHILE THE SUBJECT IS NOT
GENERALLY FREE FROM DOUBT, IT IS OUR CONCLUSION THAT IN THE POSTURE OF
THIS CASE A NECESSARY REQUISITE OF A SECTION 8(A)(5) VIOLATION IS A
FINDING THAT THE EMPLOYER FAILED TO BARGAIN IN GOOD FAITH."  289 F.2D,
AT 702-703. 

WE GRANTED CERTIORARI, 368 U.S. 811, IN ORDER TO CONSIDER WHETHER THE
BOARD'S DECISION AND ORDER WERE CONTRARY TO INSURANCE AGENTS.  WE FIND
NOTHING IN THE BOARD'S DECISION INCONSISTENT WITH INSURANCE AGENTS AND
HOLD THAT THE COURT OF APPEALS ERRED IN REFUSING TO ENFORCE THE BOARD'S
ORDER. 

THE RESPONDENTS ARE PARTNERS ENGAGED IN STEEL FABRICATING UNDER THE
FIRM NAME OF WILLIAMSBURG STEEL PRODUCTS COMPANY.  FOLLOWING A CONSENT
ELECTION IN A UNIT CONSISTING OF ALL TECHNICAL EMPLOYEES AT THE
COMPANY'S PLANT, THE BOARD, ON JULY 5, 1956, CERTIFIED AS THEIR
COLLECTIVE BARGAINING REPRESENTATIVE LOCAL 66 OF THE ARCHITECTURAL AND
ENGINEERING GUILD, AMERICAN FEDERATION OF TECHNICAL ENGINEERS, AFL
CIO.  THE BOARD SIMULTANEOUSLY CERTIFIED THE UNION AS REPRESENTATIVE OF
SIMILAR UNITS AT FIVE OTHER COMPANIES WHICH, WITH THE RESPONDENT
COMPANY, WERE MEMBERS OF THE HOLLOW METAL DOOR & BUCK ASSOCIATION.  THE
CERTIFICATIONS RELATED TO SEPARATE UNITS AT THE SEVERAL PLANTS AND DID
NOT PURPORT TO ESTABLISH A MULTI-EMPLOYER BARGAINING UNIT. 

ON JULY 11, 1956, THE UNION SENT IDENTICAL LETTERS TO EACH OF THE SIX
COMPANIES, REQUESTING COLLECTIVE BARGAINING.  NEGOTIATIONS WERE INVITED
ON EITHER AN INDIVIDUAL OR "ASSOCIATION WIDE" (FN5) BASIS, WITH THE
RESERVATION THAT WAGE RATES AND INCREASES WOULD HAVE TO BE DISCUSSED
WITH EACH EMPLOYER SEPARATELY.  A FOLLOW-UP LETTER OF JULY 19, 1956,
REPEATED THE REQUEST FOR CONTRACT NEGOTIATIONS AND ENUMERATED PROPOSED
SUBJECTS FOR DISCUSSION.  INCLUDED WERE MERIT INCREASES, GENERAL WAGE
LEVELS AND INCREASES, AND A SICK-LEAVE PROPOSAL. 

THE FIRST MEETING BETWEEN THE COMPANY AND THE UNION TOOK PLACE ON
AUGUST 30, 1956.  ON THIS OCCASION, AS AT THE TEN OTHER CONFERENCES
HELD BETWEEN OCTOBER 2, 1956, AND MAY 13, 1957, ALL SIX COMPANIES WERE
IN ATTENDANCE AND REPRESENTED BY THE SAME COUNSEL.  (FN6)  IT IS
UNDISPUTED THAT THE SUBJECT OF MERIT INCREASES WAS RAISED AT THE AUGUST
30, 1956, MEETING ALTHOUGH THERE IS AN UNRESOLVED CONFLICT AS TO
WHETHER AN AGREEMENT WAS REACHED ON JOINT PARTICIPATION BY THE COMPANY
AND THE UNION IN MERIT REVIEWS, OR WHETHER THE SUBJECT WAS SIMPLY
MENTIONED AND PUT OFF FOR DISCUSSION AT A LATER DATE.  IT IS ALSO CLEAR
THAT PROPOSALS CONCERNING SICK LEAVE WERE MADE.  SEVERAL MEETINGS WERE
HELD DURING OCTOBER AND ONE IN NOVEMBER, AT WHICH MERIT RAISES AND SICK
LEAVE WERE EACH DISCUSSED ON AT LEAST TWO OCCASIONS.  IT APPEARS,
HOWEVER, THAT LITTLE PROGRESS WAS MADE. 

ON DECEMBER 5, A MEETING WAS HELD AT THE NEW YORK STATE MEDIATION
BOARD ATTENDED BY A MEDIATOR OF THAT AGENCY, WHO WAS AT THAT TIME
MEDIATING A CONTRACT NEGOTIATION BETWEEN THE UNION AND AETNA STEEL
PRODUCTS CORPORATION, A MEMBER OF THE ASSOCIATION BARGAINING SEPARATELY
FROM THE OTHERS; AND A DECISION WAS REACHED TO RECESS THE NEGOTIATIONS
INVOLVED HERE PENDING THE RESULTS OF THE AETNA NEGOTIATION.  WHEN THE
MEDIATOR CALLED THE NEXT MEETING ON MARCH 29, 1957, THE COMPLETED AETNA
CONTRACT WAS INTRODUCED INTO THE DISCUSSION.  AT A RESUMPTION OF
BARGAINING ON APRIL 4, THE COMPANY, ALONG WITH THE OTHER EMPLOYERS,
OFFERED A THREE-YEAR AGREEMENT WITH CERTAIN INITIAL AND PROSPECTIVE
AUTOMATIC WAGE INCREASES.  THE OFFER WAS REJECTED.  FURTHER MEETINGS
WITH THE MEDIATOR ON APRIL 11, MAY 1, AND MAY 13, 1957, PRODUCED NO
AGREEMENT, AND NO FURTHER MEETINGS WERE HELD. 

MEANWHILE, ON APRIL 16, 1957, THE UNION HAD FILED THE CHARGE UPON
WHICH THE GENERAL COUNSEL'S COMPLAINT LATER ISSUED.  AS AMENDED AND
AMPLIFIED AT THE HEARING AND CONSTRUED BY THE BOARD, THE COMPLAINT'S
CHARGE OF UNFAIR LABOR PRACTICES PARTICULARLY REFERRED TO THREE ACTS BY
THE COMPANY: UNILATERALLY GRANTING NUMEROUS MERIT INCREASES IN OCTOBER
1956 AND JANUARY 1957; UNILATERALLY ANNOUNCING A CHANGE IN SICK-LEAVE
POLICY IN MARCH 1957; AND UNILATERALLY INSTITUTING A NEW SYSTEM OF
AUTOMATIC WAGE INCREASES DURING APRIL 1957.  AS THE ENSUING LITIGATION
HAS DEVELOPED, THE COMPANY HAS DEFENDED AGAINST THE CHARGES ALONG TWO
FRONTS:  FIRST, IT ASSERTS THAT THE UNILATERAL CHANGES OCCURRED AFTER A
BARGAINING IMPASSE HAD DEVELOPED THROUGH THE UNION'S FAULT IN ADOPTING
OBSTRUCTIVE TACTICS.  (FN7)  ACCORDING TO THE BOARD, HOWEVER, "THE
EVIDENCE IS CLEAR THAT THE RESPONDENT UNDERTOOK ITS UNILATERAL ACTIONS
BEFORE NEGOTIATIONS WERE DISCONTINUED IN MAY 1957, OR BEFORE, AS WE
FIND ON THE RECORD, THE EXISTENCE OF ANY POSSIBLE IMPASSE."  126
N.L.R.B., AT 289-290.  THERE IS AMPLE SUPPORT IN THE RECORD CONSIDERED
AS A WHOLE FOR THIS FINDING OF FACT, WHICH IS CONSISTENT WITH THE
EXAMINER'S INTERMEDIATE REPORT, 126 N.L.R.B., AT 295-296, AND WHICH THE
COURT OF APPEALS DID NOT QUESTION.  (FN8) 

THE SECOND LINE OF DEFENSE WAS THAT THE BOARD COULD NOT HINGE A
CONCLUSION THAT SEC. 8(A)(5) HAD BEEN VIOLATED ON UNILATERAL ACTIONS
ALONE, WITHOUT MAKING A FINDING OF THE EMPLOYER'S SUBJECTIVE BAD FAITH
AT THE BARGAINING TABLE; AND THAT THE UNILATERAL ACTIONS WERE MERELY
EVIDENCE RELEVANT TO THE ISSUE OF SUBJECTIVE GOOD FAITH.  THIS ARGUMENT
PREVAILED IN THE COURT OF APPEALS WHICH REMANDED THE CASES TO THE BOARD
SAYING: 

"ALTHOUGH WE MIGHT  ...  BE JUSTIFIED IN DENYING ENFORCEMENT WITHOUT
REMAND,  ...  SINCE THE BOARD'S FINDING OF AN UNFAIR LABOR PRACTICE
IMPLIEDLY PROCEEDS FROM AN ERRONEOUS VIEW THAT SPECIFIC UNILATERAL
ACTS, REGARDLESS OF BAD FAITH, MAY CONSTITUTE VIOLATIONS OF SEC.
8(A)(5), THE CASE SHOULD BE REMANDED TO THE BOARD IN ORDER THAT IT MAY
HAVE AN OPPORTUNITY TO TAKE ADDITIONAL EVIDENCE, AND MAKE SUCH FINDINGS
AS MAY BE WARRANTED BY THE RECORD."  289 F.2D, AT 709.  (FN9) 

THE DUTY "TO BARGAIN COLLECTIVELY" ENJOINED BY SEC. 8(A)(5) IS
DEFINED BY SEC. 8(D) AS THE DUTY TO "MEET  ...  AND CONFER IN GOOD
FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND CONDITIONS OF
EMPLOYMENT."  CLEARLY, THE DUTY THUS DEFINED MAY BE VIOLATED WITHOUT A
GENERAL FAILURE OF SUBJECTIVE GOOD FAITH; FOR THERE IS NO OCCASION TO
CONSIDER THE ISSUE OF GOOD FAITH IF A PARTY HAS REFUSED EVEN TO
NEGOTIATE IN FACT - "TO MEET  ...  AND CONFER" - ABOUT ANY OF THE
MANDATORY SUBJECTS.  (FN10)  A REFUSAL TO NEGOTIATE IN FACT AS TO ANY
SUBJECT WHICH IS WITHIN SEC. 8(D), AND ABOUT WHICH THE UNION SEEKS TO
NEGOTIATE, VIOLATES SEC. 8(A)(5) THOUGH THE EMPLOYER HAS EVERY DESIRE
TO REACH AGREEMENT WITH THE UNION UPON AN OVER-ALL COLLECTIVE AGREEMENT
AND EARNESTLY AND IN ALL GOOD FAITH BARGAINS TO THAT END.  WE HOLD THAT
AN EMPLOYER'S UNILATERAL CHANGE IN CONDITIONS OF EMPLOYMENT UNDER
NEGOTIATION IS SIMILARLY A VIOLATION OF SEC. 8(A)(5), FOR IT IS A
CIRCUMVENTION OF THE DUTY TO NEGOTIATE WHICH FRUSTRATES THE OBJECTIVES
OF SEC. 8(A)(5) MUCH AS DOES A FLAT REFUSAL.  (FN11) 

THE UNILATERAL ACTIONS OF THE RESPONDENT ILLUSTRATE THE POLICY AND
PRACTICAL CONSIDERATIONS WHICH SUPPORT OUR CONCLUSION. 

WE CONSIDER FIRST THE MATTER OF SICK LEAVE.  A SICK-LEAVE PLAN HAD
BEEN IN EFFECT SINCE MAY 1956, UNDER WHICH EMPLOYEES WERE ALLOWED TEN
PAID SICK-LEAVE DAYS ANNUALLY AND COULD ACCUMULATE HALF THE UNUSED
DAYS, OR UP TO FIVE DAYS EACH YEAR.  CHANGES IN THE PLAN WERE SOUGHT
AND PROPOSALS AND COUNTERPROPOSALS HAD COME UP AT THREE BARGAINING
CONFERENCES.  IN MARCH 1957, THE COMPANY, WITHOUT FIRST NOTIFYING OR
CONSULTING THE UNION, ANNOUNCED CHANGES IN THE PLAN, WHICH REDUCED FROM
TEN TO FIVE THE NUMBER OF PAID SICK-LEAVE DAYS PER YEAR, BUT ALLOWED
ACCUMULATION OF TWICE THE UNUSED DAYS, THUS INCREASING TO TEN THE
NUMBER OF DAYS WHICH MIGHT BE CARRIED OVER.  THIS ACTION PLAINLY
FRUSTRATED THE STATUTORY OBJECTIVE OF ESTABLISHING WORKING CONDITIONS
THROUGH BARGAINING.  SOME EMPLOYEES MIGHT VIEW THE CHANGE TO BE A
DIMINUTION OF BENEFITS.  OTHERS, MORE INTERESTED IN ACCUMULATING SICK
LEAVE DAYS, MIGHT REGARD THE CHANGE AS AN IMPROVEMENT.  IF ONE VIEW OR
THE OTHER CLEARLY PREVAILED AMONG THE EMPLOYEES, THE UNILATERAL ACTION
MIGHT WELL MEAN THAT THE EMPLOYER HAD EITHER USELESSLY DISSIPATED
TRADING MATERIAL OR AGGRAVATED THE SICK-LEAVE ISSUE.  ON THE OTHER
HAND, IF THE EMPLOYEES WERE MORE EVENLY DIVIDED ON THE MERITS OF THE
COMPANY'S CHANGES, THE UNION NEGOTIATORS, BESET BY CONFLICTING
FACTIONS, MIGHT BE LED TO ADOPT A PROTECTIVE VAGUENESS ON THE ISSUE OF
SICK LEAVE, WHICH ALSO WOULD INHIBIT THE USEFUL DISCUSSION CONTEMPLATED
BY CONGRESS IN IMPOSING THE SPECIFIC OBLIGATION TO BARGAIN
COLLECTIVELY. 

OTHER CONSIDERATIONS APPEAR FROM CONSIDERATION OF THE RESPONDENTS'
UNILATERAL ACTION IN INCREASING WAGES.  AT THE APRIL 4, 1957, MEETING
THE EMPLOYERS OFFERED, AND THE UNION REJECTED, A THREE-YEAR CONTRACT
WITH AN IMMEDIATE ACROSS-THE-BOARD INCREASE OF $7.50 PER WEEK, TO BE
FOLLOWED AT THE END OF THE FIRST YEAR AND AGAIN AT THE END OF THE
SECOND BY FURTHER INCREASES OF $5 FOR EMPLOYEES EARNING LESS THAN $90
AT THOSE TIMES.  SHORTLY THEREAFTER, WITHOUT HAVING ADVISED OR
CONSULTED WITH THE UNION, THE COMPANY ANNOUNCED A NEW SYSTEM OF
AUTOMATIC WAGE INCREASES WHEREBY THERE WOULD BE AN INCREASE OF $5 EVERY
THREE MONTHS UP TO $74.99 PER WEEK; AN INCREASE OF $5 EVERY SIX MONTHS
BETWEEN $75 AND $90 PER WEEK; AND A MERIT REVIEW EVERY SIX MONTHS FOR
EMPLOYEES EARNING OVER $90 PER WEEK.  IT IS CLEAR AT A GLANCE THAT THE
AUTOMATIC WAGE INCREASE SYSTEM WHICH WAS INSTITUTED UNILATERALLY WAS
CONSIDERABLY MORE GENEROUS THAN THAT WHICH HAD SHORTLY THERETOFORE BEEN
OFFERED TO AND REJECTED BY THE UNION.  SUCH ACTION CONCLUSIVELY
MANIFESTED BAD FAITH IN THE NEGOTIATIONS, LABOR BOARD V. CROMPTON
HIGHLAND MILLS, 337 U.S. 217, AND SO WOULD HAVE VIOLATED SEC. 8(A)(5)
EVEN ON THE COURT OF APPEALS' INTERPRETATION, THOUGH NO ADDITIONAL
EVIDENCE OF BAD FAITH APPEARED.  AN EMPLOYER IS NOT REQUIRED TO LEAD
WITH HIS BEST OFFER; HE IS FREE TO BARGAIN.  BUT EVEN AFTER AN IMPASSE
IS REACHED HE HAS NO LICENSE TO GRANT WAGE INCREASES GREATER THAN ANY
HE HAS EVEN OFFERED THE UNION AT THE BARGAINING TABLE, FOR SUCH ACTION
IS NECESSARILY INCONSISTENT WITH A SINCERE DESIRE TO CONCLUDE AN
AGREEMENT WITH THE UNION.  (FN12) 

THE RESPONDENTS' THIRD UNILATERAL ACTION RELATED TO MERIT INCREASES,
WHICH ARE ALSO A SUBJECT OF MANDATORY BARGAINING.  LABOR BOARD V.
ALLISON & CO., 165 F.2D 766.  THE MATTER OF MERIT INCREASES HAD BEEN
RAISED AT THREE OF THE CONFERENCES DURING 1956 BUT NO FINAL
UNDERSTANDING HAD BEEN REACHED.   IN JANUARY 1957, THE COMPANY, WITHOUT
NOTICE TO THE UNION, GRANTED MERIT INCREASES TO 20 EMPLOYEES OUT OF THE
APPROXIMATELY 50 IN THE UNIT, THE INCREASES RANGING BETWEEN $2 AND
$10.  (FN13)  THIS ACTION TOO MUST BE VIEWED AS TANTAMOUNT TO AN
OUTRIGHT REFUSAL TO NEGOTIATE ON THAT SUBJECT, AND THEREFORE AS A
VIOLATION OF SEC. 8(A)(5), UNLESS THE FACT THAT THE JANUARY RAISES WERE
IN LINE WITH THE COMPANY'S LONG-STANDING PRACTICE OF GRANTING QUARTERLY
OR SEMIANNUAL MERIT REVIEWS - IN EFFECT, WERE A MERE CONTINUATION OF
THE STATUS QUO - DIFFERENTIATES THEM FROM THE WAGE INCREASES AND THE
CHANGES IN THE SICK-LEAVE PLAN.  WE DO NOT THINK IT DOES.  WHATEVER
MIGHT BE THE CASE AS TO SO-CALLED "MERIT RAISES" WHICH ARE IN FACT
SIMPLY AUTOMATIC INCREASES TO WHICH THE EMPLOYER HAS ALREADY COMMITTED
HIMSELF, THE RAISES HERE IN QUESTION WERE IN NO SENSE AUTOMATIC, BUT
WERE INFORMED BY A LARGE MEASURE OF DISCRETION.  THERE SIMPLY IS NO WAY
IN SUCH CASE FOR A UNION TO KNOW WHETHER OR NOT THERE HAS BEEN A
SUBSTANTIAL DEPARTURE FROM THE PAST PRACTICE, AND THEREFORE THE UNION
MAY PROPERLY INSIST THAT THE COMPANY NEGOTIATE AS TO THE PROCEDURES AND
CRITERIA FOR DETERMINING SUCH INCREASES.  (FN14)    IT IS APPARENT FROM
WHAT WE HAVE SAID WHY WE SEE NOTHING IN INSURANCE AGENTS CONTRARY TO
THE BOARD'S DECISION.  THE UNION IN THAT CASE HAD NOT IN ANY WAY
WHATEVER FORECLOSED DISCUSSION OF ANY ISSUE, BY UNILATERAL ACTIONS OR
OTHERWISE.  (FN15)  THE CONDUCT COMPLAINED OF CONSISTED OF PARTIAL
STRIKE TACTICS DESIGNED TO PUT PRESSURE ON THE EMPLOYER TO COME TO
TERMS WITH THE UNION NEGOTIATORS.  WE HELD THAT CONGRESS HAD NOT, IN
SEC. 8(B)(3), THE COUNTERPART OF SEC. 8(A)(5), EMPOWERED THE BOARD TO
PASS JUDGMENT ON THE LEGITIMACY OF ANY PARTICULAR ECONOMIC WEAPON USED
IN SUPPORT OF GENUINE NEGOTIATIONS.  BUT THE BOARD IS AUTHORIZED TO
ORDER THE CESSATION OF BEHAVIOR WHICH IS IN EFFECT A REFUSAL TO
NEGOTIATE, OR WHICH DIRECTLY OBSTRUCTS OR INHIBITS THE ACTUAL PROCESS
OF DISCUSSION, OR WHICH REFLECTS A CAST OF MIND AGAINST REACHING
AGREEMENT.  UNILATERAL ACTION BY AN EMPLOYER WITHOUT PRIOR DISCUSSION
WITH THE UNION DOES AMOUNT TO A REFUSAL TO NEGOTIATE ABOUT THE AFFECTED
CONDITIONS OF EMPLOYMENT UNDER NEGOTIATION, AND MUST OF NECESSITY
OBSTRUCT BARGAINING, CONTRARY TO THE CONGRESSIONAL POLICY.  IT WILL
OFTEN DISCLOSE AN UNWILLINGNESS TO AGREE WITH THE UNION.  IT WILL
RARELY BE JUSTIFIED BY ANY REASON OF SUBSTANCE.  IT FOLLOWS THAT THE
BOARD MAY HOLD SUCH UNILATERAL ACTION TO BE AN UNFAIR LABOR PRACTICE IN
VIOLATION OF SEC. 8(A)(5), WITHOUT ALSO FINDING THE EMPLOYER GUILTY OF
OVER-ALL SUBJECTIVE BAD FAITH.  WHILE WE DO NOT FORECLOSE THE
POSSIBILITY THAT THERE MIGHT BE CIRCUMSTANCES WHICH THE BOARD COULD OR
SHOULD ACCEPT AS EXCUSING OR JUSTIFYING UNILATERAL ACTION, NO SUCH CASE
IS PRESENTED HERE.  (FN16) 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED WITH DIRECTION TO THE COURT TO ENFORCE THE BOARD'S ORDER.  IT
IS SO ORDERED. 

FN1  NATIONAL LABOR RELATIONS ACT SEC. 8(A)(5), 49 STAT. 452-453, AS
AMENDED, 29 U.S.C.  SEC. 158(A)(5): 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER  ...  TO REFUSE
TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF HIS EMPLOYEES,
SUBJECT TO THE PROVISIONS OF SECTION 159(A) OF THIS TITLE." 

FN2  NATIONAL LABOR RELATIONS ACT SEC. 8(D), ADDED BY 61 STAT. 142,
29 U.S.C. SEC. 158(D): 

"FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS THE
PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT  ...  ."  SEE LABOR BOARD V. BORG-WARNER
CORP., 356 U.S. 342, 348-349. 

FN3  FOR EARLIER BOARD DECISIONS IN ACCORD, SEE, E.G., CHAMBERS MFG.
CORP., 124 N.L.R.B. 721; BONHAM COTTON MILLS, INC., 121 N.L.R.B. 1235,
1236. 

THE BOARD'S ORDER HEREIN, IN PERTINENT PART, ORDERED THAT THE
RESPONDENTS: 

"1.  CEASE AND DESIST FROM: 

"(A)  UNILATERALLY CHANGING WAGES, RATES OF PAY, OR SICK LEAVE, OR
GRANTING MERIT INCREASES, OR IN ANY SIMILAR OR RELATED MANNER REFUSING
TO BARGAIN COLLECTIVELY WITH ARCHITECTURAL AND ENGINEERING GUILD, LOCAL
66, AMERICAN FEDERATION OF TECHNICAL ENGINEERS, AFL-CIO  ...  . 

"(B)  REFUSING TO BARGAIN COLLECTIVELY CONCERNING RATES OF PAY,
WAGES, HOURS OF EMPLOYMENT, AND OTHER CONDITIONS OF EMPLOYMENT WITH THE
UNION  ...  ." 

FN4  ACCORD:  LABOR BOARD V. CASCADE EMPLOYERS ASSN., INC., 296 F.2D
42 (C.A. 9TH CIR.). 

FN5  BY THEIR REFERENCES TO "ASSOCIATION WIDE BARGAINING" THE PARTIES
APPEAR TO MEAN NEGOTIATIONS AT WHICH THE SIX MEMBERS OF THE ASSOCIATION
FOR WHOSE EMPLOYEES THE UNION HAD RECEIVED CERTIFICATIONS ON JULY 5,
1956, WOULD BE CONCURRENTLY REPRESENTED. 

FN6  ON ONE OCCASION IN NOVEMBER 1956, A REPRESENTATIVE OF THE
COMPANY CONFERRED INDIVIDUALLY WITH THE UNION ABOUT JOB
CLASSIFICATIONS. 

FN7  PARTICULARIZATIONS OF THIS CHARGE ARE THAT THE UNION ADAMANTLY
INSISTED THAT THE EMPLOYERS AGREE TO A CONTRACT IDENTICAL WITH THAT
ENTERED INTO BY AETNA BECAUSE THE AETNA AGREEMENT CONTAINED A "MOST
FAVORABLE NATION" CLAUSE; THAT THE UNION EVASIVELY VACILLATED BETWEEN
INSISTENCE ON INDIVIDUAL AND GROUP NEGOTIATIONS; AND THAT THE CONDUCT
OF NEGOTIATIONS BY THE UNION CREATED UNREST IMPAIRING THE EFFICIENCY OF
THE COMPANY'S OPERATIONS AND CAUSING VALUED EMPLOYEES TO QUIT. 

THE BOARD FOUND AS A FACT THAT THE INTRODUCTION OF THE AETNA
AGREEMENT DID NOT CREATE ANY IMPASSE AT LEAST UNTIL AFTER THE
UNILATERAL ACTIONS HERE IN ISSUE.  THE BOARD ADOPTED THE EXAMINER'S
FINDING THAT THE COMPANY AND NOT THE UNION WAS RESPONSIBLE FOR ANY
CONFUSION OVER INDIVIDUAL AS OPPOSED TO ASSOCIATION-WIDE BARGAINING. 
THE UNREST SEEMS TO HAVE BEEN A CONCOMITANT OF THE ASSERTION BY THE
EMPLOYEES OF THEIR RIGHTS TO ORGANIZE AND NEGOTIATE A COLLECTIVE
AGREEMENT, AND COULD NOT JUSTIFY A REFUSAL OF THE COMPANY TO BARGAIN,
AT LEAST IN THE ABSENCE OF CONDUCT OF THE UNION WHICH AMOUNTED TO AN
UNFAIR LABOR PRACTICE. 

THE EXAMINER REJECTED THE COMPANY'S OFFER TO PROVE UNION-INSTIGATED
SLOWDOWNS.  BUT SUCH PROOF WOULD NOT HAVE JUSTIFIED THE COMPANY'S
REFUSAL TO BARGAIN.  SINCE, AS WE HELD IN LABOR BOARD V. INSURANCE
AGENTS' UNION, 361 U.S. 477, THE BOARD MAY NOT BRAND PARTIAL STRIKE
ACTIVITY AS ILLEGITIMATE AND FORBID ITS USE IN SUPPORT OF BARGAINING,
AN EMPLOYER CANNOT BE FREE TO REFUSE TO NEGOTIATE WHEN THE UNION
RESORTS TO SUCH TACTICS.  ENGAGING IN PARTIAL STRIKES IS NOT INHERENTLY
INCONSISTENT WITH A CONTINUED WILLINGNESS TO NEGOTIATE; AND AS LONG AS
THERE IS SUCH WILLINGNESS AND NO IMPASSE HAS DEVELOPED, THE EMPLOYER'S
OBLIGATION CONTINUES. 

FN8  SEE UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474. 

FN9  THE BOARD HAS ALSO FOUND THE COMPANY'S ACTIONS VIOLATIVE OF SEC.
8(A)(1), 49 STAT.  452, AS AMENDED, 29 U.S.C. SEC. 158(A)(1), BUT THE
COURT OF APPEALS HELD THAT THOSE FINDINGS WERE MERELY DERIVATIVE OF THE
BOARD'S CONCLUSIONS REGARDING SEC. 8(A)(5) AND SO REJECTED THEM.  WE
NEED NOT CONSIDER THIS QUESTION BECAUSE THE BOARD'S ORDER PRESENTS NO
SEPARATE ISSUE AS TO SEC. 8(A)(1).  IT REQUIRES THE COMPANY TO CEASE
AND DESIST FROM REFUSING TO BARGAIN COLLECTIVELY, AND TO BARGAIN
COLLECTIVELY ON REQUEST.  IT IMPOSES NO BROADER OBLIGATION EITHER IN
THE LANGUAGE OF, OR BY REFERENCE TO, SEC. 8(A)(1). 

FN10  SEE, E.G., LABOR BOARD V. ALLISON & CO., 165 F.2D 766. 

FN11  COMPARE MEDO CORP. V. LABOR BOARD, 321 U.S. 678; MAY DEPARTMENT
STORES V. LABOR BOARD, 326 U.S. 376; LABOR BOARD V. CROMPTON-HIGHLAND
MILLS, 337 U.S. 217. 

IN MEDO, THE COURT HELD THAT THE EMPLOYER INTERFERED WITH HIS
EMPLOYEES' RIGHT TO BARGAIN COLLECTIVELY THROUGH A CHOSEN
REPRESENTATIVE, IN VIOLATION OF SEC. 8(1), 49 STAT.  452 (NOW SEC.
8(A)(1)), WHEN IT TREATED DIRECTLY WITH EMPLOYEES AND GRANTED THEM A
WAGE INCREASE IN RETURN FOR THEIR PROMISE TO REPUDIATE THE UNION THEY
HAD DESIGNATED AS THEIR REPRESENTATIVE.  IT FURTHER HELD THAT THE
EMPLOYER VIOLATED THE STATUTORY DUTY TO BARGAIN WHEN HE REFUSED TO
NEGOTIATE WITH THE UNION AFTER THE EMPLOYEES HAD CARRIED OUT THEIR
PROMISE. 

MAY HELD THAT THE EMPLOYER VIOLATED SEC. 8(1) WHEN, AFTER HAVING
UNEQUIVOCALLY REFUSED TO BARGAIN WITH A CERTIFIED UNION ON THE GROUND
THAT THE UNIT WAS INAPPROPRIATE, IT ANNOUNCED THAT IT HAD APPLIED TO
THE WAR LABOR BOARD FOR PERMISSION TO GRANT A WAGE INCREASE TO ALL ITS
EMPLOYEES EXCEPT THOSE WHOSE WAGES HAD BEEN FIXED BY "CLOSED SHOP
AGREEMENTS." 

CROMPTON-HIGHLAND MILLS SUSTAINED THE BOARD'S CONCLUSION THAT THE
EMPLOYER'S UNILATERAL GRANT OF A WAGE INCREASE SUBSTANTIALLY GREATER
THAN ANY IT HAD OFFERED TO THE UNION DURING NEGOTIATIONS WHICH HAD
ENDED IN IMPASSE CLEARLY MANIFESTED BAD FAITH AND VIOLATED THE
EMPLOYER'S DUTY TO BARGAIN. 

FN12  OF COURSE, THERE IS NO RESEMBLANCE BETWEEN THIS SITUATION AND
ONE WHEREIN AN EMPLOYER, AFTER NOTICE AND CONSULTATION, "UNILATERALLY"
INSTITUTES A WAGE INCREASE IDENTICAL WITH ONE WHICH THE UNION HAS
REJECTED AS TOO LOW.  SEE LABOR BOARD V. BRADLEY WASHFOUNTAIN CO., 192
F.2D 144, 150-152; LABOR BOARD V. LANDIS TOOL CO., 193 F.2D 279. 

FN13  THE BOARD ALSO CONCLUDED THAT THE COMPANY HAD VIOLATED SEC.
8(A)(5) BY GRANTING 34 MERIT INCREASES IN OCTOBER 1956.  HOWEVER, IT
APPEARS FROM A STIPULATION IN THE RECORD AND FROM THE BOARD'S REPLY
BRIEF THAT THE LATTER INCREASES OCCURRED ON OCTOBER 1, 1956, WHILE THE
CHARGE ON WHICH THE INSTANT COMPLAINT ISSUED WAS NOT FILED UNTIL APRIL
16, 1957, MORE THAN SIX MONTHS THEREAFTER.  SECTION 10(B) OF THE ACT,
AS AMENDED, 61 STAT. 146, 29 U.S.C.  SEC. 160(B), PROVIDES THAT "NO
COMPLAINT SHALL ISSUE BASED UPON ANY UNFAIR LABOR PRACTICE OCCURRING
MORE THAN SIX MONTHS PRIOR TO THE FILING OF THE CHARGE WITH THE BOARD
...  ."  THEREFORE, WE DISREGARD THE OCTOBER 1956 INCREASES AS
INDEPENDENTLY CONSTITUTING AN UNFAIR LABOR PRACTICE.  NOR DO WE FIND IT
NECESSARY TO DECIDE WHETHER THEY MAY BE CONSIDERED AS EVIDENCE IN
CONNECTION WITH THE BOARD'S SUGGESTION THAT THE MERIT INCREASES OF
OCTOBER 1956 AND JANUARY 1957 SHOULD BE VIEWED AS TOGETHER AMOUNTING TO
A GENERAL WAGE INCREASE. 

FN14  SEE ARMSTRONG CORK CO. V. LABOR BOARD, 211 F.2D 843, 847; LABOR
BOARD V. DEALERS ENGINE REBUILDERS, INC., 199 F.2D 249.  COMPARE THE
ISOLATED INDIVIDUAL WAGE ADJUSTMENTS HELD NOT TO BE UNFAIR LABOR
PRACTICES IN LABOR BOARD V. SUPERIOR FIREPROOF DOOR & SASH CO., 289
F.2D 713, 720, AND WHITE V. LABOR BOARD, 255 F.2D 564, 565. 

FN15  THE COURT EXPRESSLY LEFT OPEN THE QUESTION WHICH WOULD BE
RAISED BY A UNION'S ATTEMPT TO IMPOSE NEW WORKING CONDITIONS
UNILATERALLY.  361 U.S., AT 496-497, N. 28. 

FN16  THE COMPANY URGES THAT, BECAUSE OF THE LAPSE OF TIME BETWEEN
THE OCCURRENCE OF THE UNFAIR LABOR PRACTICES AND THE BOARD'S FINAL
DECISION AND ORDER, AND BECAUSE THE UNION WAS REPUDIATED BY THE
EMPLOYEES SUBSEQUENTLY TO THE EVENTS RECOUNTED IN THIS OPINION,
ENFORCEMENT SHOULD BE EITHER DENIED ALTOGETHER OR CONDITIONED ON THE
HOLDING OF A NEW ELECTION TO DETERMINE WHETHER THE UNION IS STILL THE
EMPLOYEES' CHOICE AS A BARGAINING REPRESENTATIVE.  THE ARGUMENT HAS NO
MERIT.  FRANKS BROS. CO. V. LABOR BOARD, 321 U.S. 702; LABOR BOARD V.
P. LORILLARD CO., 314 U.S. 512; LABOR BOARD V. MEXIA TEXTILE MILLS,
INC., 339 U.S. 563, 568.  INORDINATE DELAY IN ANY CASE IS REGRETTABLE,
BUT CONGRESS HAS INTRODUCED NO TIME LIMITATION INTO THE ACT EXCEPT THAT
IN SEC. 10(B). 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :

















RUSSELL V. UNITED STATES 369 U.S. 749 


NO. 8.  ARGUED DECEMBER 7, 1961 - DECIDED MAY 21, 1962* - 108 U.S. APP.
D.C. 140, 280 F.2D 688; 108 U.S. APP. D.C. 153, 280 F.2D 701; 108 U.S.
APP. D.C. 226, 281 F.2D 59; 108 U.S. APP. D.C. 160, 280 F.2D 708; 108
U.S. APP. D.C. 167, 280 F.2D 715; 108 U.S. APP. D.C. 130, 280 F.2D 678,
REVERSED. 

*TOGETHER WITH NO. 9, SHELTON V. UNITED STATES, ARGUED DECEMBER 6-7,
1961; NO. 10, WHITMAN V. UNITED STATES, ARGUED DECEMBER 7, 11, 1961;
NO. 11, LIVERIGHT V. UNITED STATES, ARGUED DECEMBER 11, 1961; NO. 12,
PRICE V. UNITED STATES, ARGUED DECEMBER 11, 1961; AND NO. 128, GOJACK
V. UNITED STATES, ARGUED DECEMBER 11-12, 1961, ALSO ON CERTIORARI TO
THE SAME COURT. 


THE PETITIONERS IN THESE SIX CASES WERE CONVICTED OF VIOLATING 2
U.S.C. SEC. 192, WHICH MAKES IT A MISDEMEANOR FOR ANY PERSON SUMMONED
TO TESTIFY BEFORE A COMMITTEE OF CONGRESS TO REFUSE TO ANSWER "ANY
QUESTION PERTINENT TO THE QUESTION UNDER INQUIRY."  IN EACH CASE THE
INDICTMENT RETURNED BY THE GRAND JURY STATED THAT THE QUESTIONS TO
WHICH ANSWERS WERE REFUSED "WERE PERTINENT TO THE QUESTION THEN UNDER
INQUIRY" BY THE SUBCOMMITTEE; BUT IT FAILED TO IDENTIFY THE SUBJECT
UNDER SUBCOMMITTEE INQUIRY WHEN THE WITNESS WAS INTERROGATED.  IN EACH
CASE A MOTION WAS FILED TO QUASH THE INDICTMENT BEFORE TRIAL FOR
FAILURE TO STATE THE SUBJECT UNDER INQUIRY; BUT IN EACH CASE THE MOTION
WAS DENIED AND THE ISSUE THUS RAISED WAS PRESERVED AND PROPERLY
PRESENTED IN THIS COURT.  HELD:  THE GRAND JURY INDICTMENT REQUIRED BY
2 U.S.C. SEC. 194 AS A PREREQUISITE TO A PROSECUTION FOR A VIOLATION OF
SEC. 192 MUST STATE THE QUESTION WHICH WAS UNDER INQUIRY AT THE TIME OF
THE DEFENDANT'S ALLEGED DEFAULT OR REFUSAL TO ANSWER, AS FOUND BY THE
GRAND JURY; AND THE JUDGMENT AFFIRMING THE CONVICTION OF EACH OF THE
PETITIONERS IS REVERSED.  PP. 751-772. 

(A)  THE CONGRESS WHICH ORIGINALLY ENACTED IN 1857 THE LAW WHICH WAS
A PREDECESSOR OF 2 U.S.C. SEC. 192 WAS EXPRESSLY AWARE THAT PERTINENCY
TO THE SUBJECT UNDER INQUIRY WAS THE BASIC PRELIMINARY QUESTION WHICH
THE FEDERAL COURTS WOULD HAVE TO DECIDE IN DETERMINING WHETHER A
VIOLATION OF THE STATUTE HAD BEEN ALLEGED OR PROVED.  PP. 756-758. 

(B)  MANY DECISIONS OF THIS COURT ARISING UNDER 2 U.S.C. SEC. 192
HAVE RECOGNIZED THE CRUCIAL IMPORTANCE OF DETERMINING THE ISSUE OF
PERTINENCY; AND THE OBVIOUS FIRST STEP IN DETERMINING WHETHER THE
QUESTIONS ASKED WERE PERTINENT TO THE SUBJECT UNDER INQUIRY IS TO
ASCERTAIN WHAT THAT SUBJECT WAS.  PP. 758-760. 

(C)  WHILE CONVICTIONS ARE NO LONGER REVERSED BECAUSE OF MINOR AND
TECHNICAL DEFICIENCIES WHICH DID NOT PREJUDICE THE ACCUSED, THE
SUBSTANTIAL SAFEGUARDS TO THOSE CHARGED WITH SERIOUS CRIMES CANNOT BE
ERADICATED UNDER THE GUISE OF TECHNICAL DEPARTURES FROM THE RULES.  PP.
760-763. 

(D)  OMISSION FROM THE INDICTMENTS HERE INVOLVED OF STATEMENTS OF THE
SUBJECT UNDER INQUIRY DEPRIVED THE DEFENDANTS OF ONE OF THE SIGNIFICANT
PROTECTIONS WHICH THE GUARANTY OF A GRAND JURY INDICTMENT WAS INTENDED
TO CONFER - I.E., THEY FAILED ADEQUATELY TO APPRISE THE DEFENDANTS OF
WHAT THEY MUST BE PREPARED TO MEET.  PP. 763-768. 

(E)  THESE INDICTMENTS WERE ALSO INSUFFICIENT TO SERVE THE COROLLARY
PURPOSE OF ENABLING THE COURTS TO DECIDE WHETHER THE FACTS ALLEGED WERE
SUFFICIENT IN LAW TO SUPPORT CONVICTIONS.  PP. 768-769. 

(F)  THE DEFICIENCIES IN THESE INDICTMENTS COULD NOT HAVE BEEN CURED
BY BILLS OF PARTICULARS, BECAUSE UNDER 2 U.S.C. SEC. 194 ONLY A GRAND
JURY MAY DETERMINE WHETHER A PERSON SHOULD BE HELD TO ANSWER IN A
CRIMINAL TRIAL FOR REFUSING TO GIVE TESTIMONY PERTINENT TO A QUESTION
UNDER CONGRESSIONAL COMMITTEE INQUIRY, AND THE GRAND JURY ITSELF MUST
NECESSARILY DETERMINE WHAT THE QUESTIONN UNDER INQUIRY WAS.  PP. 769
771. 

RUSSELL V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN THESE SIX CASES WE REVIEW JUDGMENTS OF THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA, (FN1) WHICH AFFIRMED CONVICTIONS OBTAINED IN
THE DISTRICT COURT UNDER 2 U.S.C.  SEC. 192.  (FN2)  EACH OF THE
PETITIONERS WAS CONVICTED FOR REFUSING TO ANSWER CERTAIN QUESTIONS WHEN
SUMMONED BEFORE A CONGRESSIONAL SUBCOMMITTEE.  (FN3)  THE CASES WERE
SEPARATELY BRIEFED AND ARGUED HERE, AND MANY ISSUES WERE PRESENTED.  WE
DECIDE EACH CASE UPON A SINGLE GROUND COMMON TO ALL, AND WE THEREFORE
REACH NO OTHER QUESTIONS. 

IN EACH CASE THE INDICTMENT RETURNED BY THE GRAND JURY FAILED TO
IDENTIFY THE SUBJECT UNDER CONGRESSIONAL SUBCOMMITTEE INQUIRY AT THE
TIME THE WITNESS WAS INTERROGATED.  THE INDICTMENTS WERE PRACTICALLY
IDENTICAL IN THIS RESPECT, STATING ONLY THAT THE QUESTIONS TO WHICH
ANSWERS WERE REFUSED "WERE PERTINENT TO THE QUESTION THEN UNDER
INQUIRY" BY THE SUBCOMMITTEE.  (FN4)  IN EACH CASE A MOTION WAS FILED
TO QUASH THE INDICTMENT BEFORE TRIAL UPON THE GROUND THAT THE
INDICTMENT FAILED TO STATE THE SUBJECT UNDER INVESTIGATION AT THE TIME
OF THE SUBCOMMITTEE'S INTERROGATION OF THE DEFENDANT.  (FN5)  IN EACH
CASE THE MOTION WAS DENIED.  IN EACH CASE THE ISSUE THUS RAISED WAS
PRESERVED ON APPEAL, IN THE PETITION FOR WRIT OF CERTIORARI, AND IN
BRIEF AND ARGUMENT HERE. 

CONGRESS HAS EXPRESSLY PROVIDED THAT NO ONE CAN BE PROSECUTED UNDER 2
U.S.C. SEC. 192 EXCEPT UPON INDICTMENT BY A GRAND JURY.  (FN6)  THIS
COURT HAS NEVER DECIDED WHETHER THE INDICTMENT MUST IDENTIFY THE
SUBJECT WHICH WAS UNDER INQUIRY AT THE TIME OF THE DEFENDANT'S ALLEGED
DEFAULT OR REFUSAL TO ANSWER.  (FN7)  FOR THE REASONS THAT FOLLOW, WE
HOLD THAT THE INDICTMENT MUST CONTAIN SUCH AN AVERMENT, AND WE
ACCORDINGLY REVERSE THE JUDGMENTS BEFORE US. 

IN ENACTING THE CRIMINAL STATUTE UNDER WHICH THESE PETITIONERS WERE
CONVICTED CONGRESS INVOKED THE AID OF THE FEDERAL JUDICIAL SYSTEM IN
PROTECTING ITSELF AGAINST CONTUMACIOUS CONDUCT.  WATKINS V. UNITED
STATES, 354 U.S. 178, 207.  THE OBVIOUS CONSEQUENCE, AS THE COURT HAS
REPEATEDLY EMPHASIZED, WAS TO CONFER UPON THE FEDERAL COURTS THE DUTY
TO ACCORD A PERSON PROSECUTED FOR THIS STATUTORY OFFENSE EVERY
SAFEGUARD WHICH THE LAW ACCORDS IN ALL OTHER FEDERAL CRIMINAL CASES. 
SINCLAIR V. UNITED STATES, 279 U.S. 263, 296-297; WATKINS V. UNITED
STATES, SUPRA, AT 208; SACHER V. UNITED STATES, 356 U.S. 576, 577;
FLAXER V. UNITED STATES, 358 U.S. 147, 151; DEUTCH V. UNITED STATES,
367 U.S. 456, 471. 

RECOGNIZING THIS ELEMENTARY CONCEPT, THE SINCLAIR CASE ESTABLISHED
SEVERAL PROPOSITIONS WHICH PROVIDE A RELEVANT STARTING POINT HERE. 
FIRST, THERE CAN BE CRIMINALITY UNDER THE STATUTE ONLY IF THE QUESTION
WHICH THE WITNESS REFUSED TO ANSWER PERTAINED TO A SUBJECT THEN UNDER
INVESTIGATION BY THE CONGRESSIONAL BODY WHICH SUMMONED HIM.  "A WITNESS
RIGHTFULLY MAY REFUSE TO ANSWER WHERE  ... THE QUESTIONS ASKED ARE NOT
PERTINENT TO THE MATTER UNDER INQUIRY."  SINCLAIR V. UNITED STATES,
SUPRA, AT 292.  SECONDLY, BECAUSE THE DEFENDANT IS PRESUMED TO BE
INNOCENT, IT IS "INCUMBENT UPON THE UNITED STATES TO PLEAD AND SHOW
THAT THE QUESTION HE REFUSED TO ANSWER PERTAINED TO SOME MATTER UNDER
INVESTIGATION."  ID., AT 296-297.  FINALLY, SINCLAIR HELD THAT THE
QUESTION OF PERTINENCY IS ONE FOR DETERMINATION BY THE COURT AS A
MATTER OF LAW.  ID., AT 298. 

IN THAT CASE THE COURT HAD BEFORE IT AN INDICTMENT WHICH SET OUT IN
SPECIFIC AND LENGTHY DETAIL THE SUBJECT UNDER INVESTIGATION BY THE
SENATE COMMITTEE WHICH HAD SUMMONED SINCLAIR.  THE COURT WAS THEREBY
ENABLED TO MAKE AN ENLIGHTENED AND PRECISE DETERMINATION THAT THE
QUESTION HE HAD REFUSED TO ANSWER WAS PERTINENT TO THAT SUBJECT.  ID.,
AT 285-289, 296-298. 

THAT THE MAKING OF SUCH A DETERMINATION WOULD BE A VITAL FUNCTION OF
THE FEDERAL JUDICIARY IN A PROSECUTION BROUGHT UNDER 2 U.S.C. SEC. 192
WAS CLEARLY FORESEEN BY THE CONGRESS WHICH ORIGINALLY ENACTED THE LAW
IN 1857.  (FN8)  CONGRESS NOT ONLY PROVIDED THAT A PERSON COULD BE
PROSECUTED ONLY UPON AN INDICTMENT BY A GRAND JURY, BUT, AS THE RECORD
OF THE LEGISLATIVE DEBATES SHOWS, CONGRESS WAS EXPRESSLY AWARE THAT
PERTINENCY TO THE SUBJECT UNDER INQUIRY WAS THE BASIC PRELIMINARY
QUESTION WHICH THE FEDERAL COURTS WERE GOING TO HAVE TO DECIDE IN
DETERMINING WHETHER A CRIMINAL OFFENSE HAD BEEN ALLEGED OR PROVED.  THE
PRINCIPAL SPOKESMAN FOR THE BILL, SENATOR BAYARD, REPEATEDLY MADE THIS
VERY POINT: 

"THE BILL PROVIDES FOR PUNISHING A WITNESS WHO SHALL REFUSE TO ANSWER
ANY QUESTION 'PERTINENT' TO THE MATTER OF INQUIRY UNDER CONSIDERATION
BEFORE THE HOUSE OR ITS COMMITTEE.  IF HE REFUSES TO ANSWER AN
IRRELEVANT QUESTION, HE IS NOT SUBJECT TO THE PENALTIES OF THE BILL. 
THE QUESTION MUST BE PERTINENT TO THE SUBJECT-MATTER, AND THAT WILL
HAVE TO BE DECIDED BY THE COURTS OF JUSTICE ON THE INDICTMENT.  THAT
POWER IS NOT GIVEN TO CONGRESS; IT IS GIVEN APPROPRIATELY TO THE
JUDICIARY."  CONG. GLOBE, 34TH CONG., 3D SESS. 439 (1857). 

*         *         *         *         * 

"THIS LAW DOES NOT PROPOSE TO GIVE TO THIS MISCELLANEOUS POLITICAL
BODY THE POWER OF PUNISHMENT; BUT ONE OF ITS GREATEST RECOMMENDATIONS
IS, THAT IT TRANSFERS THAT POWER OF PUNISHMENT TO A COURT OF JUSTICE
AFTER JUDICIAL INQUIRY.  ALL THAT IS TO BE DONE IN THE CASE OF A
REFUSAL TO TESTIFY IS TO CERTIFY THE FACT TO THE DISTRICT ATTORNEY, WHO
IS TO LAY IT BEFORE THE GRAND JURY, AND IF THE PARTY IS INDICTED HE IS
BOUND TO ANSWER ACCORDING TO THE TERMS OF THE LAW, AS ANY OTHER PERSON
WOULD FOR AN OFFENSE AGAINST THE LAWS OF THE LAND  ...  .  I AM AWARE
THAT LEGISLATIVE BODIES HAVE TRANSCENDED THEIR POWERS - THAT UNDER THE
INFLUENCE OF PASSION AND POLITICAL EXCITEMENT THEY HAVE VERY OFTEN
INVADED THE RIGHTS OF INDIVIDUALS, AND MAY HAVE INVADED THE RIGHTS OF
COORDINATE BRANCHES OF THE GOVERNMENT; BUT IF OUR INSTITUTIONS ARE TO
LAST, THERE CAN BE NO GREATER SAFEGUARD THAN WILL RESULT FROM
TRANSFERRING THAT WHICH NOW STANDS ON AN INDEFINITE POWER (THE
PUNISHMENT AS WELL AS THE OFFENSE RESTING IN THE BREAST OF EITHER
HOUSE) FROM CONGRESS TO THE COURTS OF JUSTICE.  WHEN A CASE OF THIS
KIND COMES BEFORE A COURT, WILL NOT THE FIRST INQUIRY BE, HAVE CONGRESS
JURISDICTION OF THE SUBJECT-MATTER?  - HAS THE HOUSE WHICH UNDERTAKES
TO INQUIRE, JURISDICTION OF THE SUBJECT?  IF THEY HAVE NOT, THE WHOLE
PROCEEDINGS ARE CORAM NON JUDICE AND VOID, AND THE PARTY CANNOT BE HELD
LIABLE UNDER INDICTMENT.  THE COURT WOULD QUASH THE INDICTMENT IF THIS
FACT APPEARED ON ITS FACE; AND IF IT APPEARED ON THE TRIAL THEY WOULD
DIRECT THE JURY TO ACQUIT."  CONG. GLOBE, 34TH CONG., 3D SESS. 440
(1857). 

     *         *         *         *         * 

" ...  THE LAW PRESCRIBES THAT, IN CASE OF SUCH REFUSAL, THE HOUSE
SHALL CERTIFY THE FACT TO THE DISTRICT ATTORNEY, AND HE SHALL BRING THE
MATTER BEFORE THE GRAND JURY.  WHEN THAT COMES UP BY INDICTMENT BEFORE
THE COURT, MUST NOT THE COURT DECIDE WHETHER THE QUESTION PUT WAS
PERTINENT TO THE INQUIRY?  OF COURSE THEY MUST; AND THEY CANNOT HOLD
THE PARTY GUILTY WITHOUT DOING IT."  CONG. GLOBE, 34TH CONG., 3D SESS.
440 (1857). 

THESE FORECASTS OF THE OFFICE WHICH THE FEDERAL COURTS WOULD BE
CALLED UPON TO PERFORM UNDER 2 U.S.C. SEC. 192 HAVE BEEN AMPLY BORNE
OUT BY THE CASES WHICH HAVE ARISEN UNDER THE STATUTE.  THE CRUCIAL
IMPORTANCE OF DETERMINING THE ISSUE OF PERTINENCY IS REFLECTED IN MANY
CASES WHICH HAVE COME HERE SINCE SINCLAIR, SUPRA.  WATKINS V. UNITED
STATES, 354 U.S. 178, 208; SACHER V. UNITED STATES, 356 U.S. 576, 577;
BARENBLATT V. UNITED STATES, 360 U.S. 109, 123-125; WILKINSON V. UNITED
STATES, 365 U.S. 399, 407-409, 413; BRADEN V. UNITED STATES, 365 U.S.
431, 435-436; DEUTCH V. UNITED STATES, 367 U.S. 456, 467-471.  OUR
DECISIONS HAVE POINTED OUT THAT THE OBVIOUS FIRST STEP IN DETERMINING
WHETHER THE QUESTIONS ASKED WERE PERTINENT TO THE SUBJECT UNDER INQUIRY
IS TO ASCERTAIN WHAT THAT SUBJECT WAS.  SEE, E.G., DEUTCH V. UNITED
STATES, SUPRA, AT 469.  IDENTIFICATION OF THE SUBJECT UNDER INQUIRY IS
ALSO AN ESSENTIAL PRELIMINARY TO THE DETERMINATION OF A HOST OF OTHER
ISSUES WHICH TYPICALLY ARISE IN PROSECUTIONS UNDER THE STATUTE.  IN
WILKINSON V. UNITED STATES, SUPRA, FOR EXAMPLE, THE COURT POINTED OUT
THAT IN ORDER PROPERLY TO CONSIDER ANY OF THE MANY ISSUES THERE
PRESENTED, "THE STARTING POINT MUST BE TO DETERMINE THE SUBJECT MATTER
OF THE SUBCOMMITTEE'S INQUIRY."  365 U.S., AT 407. 

WHERE, AS IN THE SINCLAIR CASE, THE SUBJECT UNDER INQUIRY HAS BEEN
IDENTIFIED IN THE INDICTMENT, THIS ESSENTIAL FIRST STEP HAS PRESENTED
NO PROBLEM.  WHERE, AS IN THE MORE RECENT CASES, THE INDICTMENT HAS NOT
IDENTIFIED THE TOPIC UNDER INQUIRY, THE COURT HAS OFTEN FOUND IT
DIFFICULT OR IMPOSSIBLE TO ASCERTAIN WHAT THE SUBJECT WAS.  THE
DIFFICULTY OF SUCH A DETERMINATION IN THE ABSENCE OF AN ALLEGATION IN
THE INDICTMENT IS ILLUSTRATED BY DEUTCH V. UNITED STATES, SUPRA.  IN
THAT CASE THE MEMBERS OF THIS COURT WERE IN SHARP DISAGREEMENT AS TO
WHAT THE SUBJECT UNDER SUBCOMMITTEE INQUIRY HAD BEEN.  MOREOVER, ALL OF
US DISAGREED WITH THE DISTRICT COURT'S THEORY, AND THE COURT OF APPEALS
HAD NOT EVEN VENTURED A VIEW ON THE QUESTION.  367 U.S., AT 467.  IN
WATKINS V. UNITED STATES, SUPRA, THE COURT FOUND IT NOT MERELY
DIFFICULT, BUT ACTUALLY IMPOSSIBLE, TO DETERMINE WHAT THE TOPIC UNDER
SUBCOMMITTEE INQUIRY HAD BEEN AT THE TIME THE PETITIONER HAD REFUSED TO
ANSWER THE QUESTIONS ADDRESSED TO HIM.  "HAVING EXHAUSTED THE SEVERAL
POSSIBLE INDICIA OF THE 'QUESTION UNDER INQUIRY,' WE REMAIN
UNENLIGHTENED AS TO THE SUBJECT TO WHICH THE QUESTIONS ASKED PETITIONER
WERE PERTINENT."  354 U.S., AT 214.  (FN9) 

TO BE SURE, THE FACT THAT DIFFICULTIES AND DOUBTS HAVE BESET THE
FEDERAL COURTS IN TRYING TO ASCERTAIN THE SUBJECT UNDER INQUIRY IN
CASES ARISING UNDER 2 U.S.C. SEC. 192 COULD HARDLY JUSTIFY, IN THE
ABSTRACT, A REQUIREMENT THAT INDICTMENTS UNDER THE STATUTE CONTAIN
AVERMENTS WHICH WOULD SIMPLIFY THE COURTS' TASK.  DIFFICULT AND
DOUBTFUL QUESTIONS ARE INHERENT IN THE JUDICIAL PROCESS, PARTICULARLY
UNDER A SYSTEM OF CRIMINAL LAW WHICH PLACES HEAVY EMPHASIS UPON THE
PROTECTION OF THE RIGHTS AND LIBERTIES OF THE INDIVIDUAL.  COURTS SIT
TO RESOLVE JUST SUCH QUESTIONS, AND RULES OF LAW ARE NOT TO BE MADE
MERELY TO SUIT JUDICIAL CONVENIENCE.  BUT A PROLIFERATION OF DOUBTFUL
ISSUES WHICH NOT ONLY BURDEN THE JUDICIARY, BUT, BECAUSE OF
UNCERTAINTIES INHERENT IN THEIR RESOLUTION, WORK A HARDSHIP UPON BOTH
THE PROSECUTION AND THE DEFENSE IN CRIMINAL CASES, IS HARDLY A
DESIDERATUM.  AND THE REPEATED APPEARANCE IN PROSECUTIONS UNDER A
PARTICULAR CRIMINAL STATUTE OF THE SAME CRITICAL AND DIFFICULT
QUESTION, WHICH COULD BE OBVIATED BY A SIMPLE AVERMENT IN THE
INDICTMENT, INVITES INQUIRY INTO THE PURPOSES AND FUNCTIONS WHICH A
GRAND JURY INDICTMENT IS INTENDED TO SERVE.  THE CASES WE HAVE
DISCUSSED, THEREFORE, FURNISH AN APPROPRIATE BACKGROUND FOR THE INQUIRY
TO WHICH WE NOW TURN. 

ANY DISCUSSION OF THE PURPOSE SERVED BY A GRAND JURY INDICTMENT IN
THE ADMINISTRATION OF FEDERAL CRIMINAL LAW MUST BEGIN WITH THE FIFTH
AND SIXTH AMENDMENTS TO THE CONSTITUTION.  THE FIFTH AMENDMENT PROVIDES
THAT "NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE
INFAMOUS CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY,
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; ...  ."  WE
NEED NOT PAUSE TO CONSIDER WHETHER AN OFFENSE UNDER 2 U.S.C. SEC. 192
IS AN "INFAMOUS CRIME," DUKE V. UNITED STATES, 301 U.S. 492, SINCE
CONGRESS HAS FROM THE BEGINNING EXPLICITLY CONFERRED UPON THOSE
PROSECUTED UNDER THE STATUTE THE PROTECTION WHICH THE FIFTH AMENDMENT
CONFERS, BY PROVIDING THAT NO ONE CAN BE PROSECUTED FOR THIS OFFENSE
EXCEPT UPON AN INDICTMENT BY A GRAND JURY.  THIS SPECIFIC GUARANTY, AS
WELL AS THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE, ARE, THEREFORE, BOTH
BROUGHT TO BEAR HERE.  OF LIKE RELEVANCE IS THE GUARANTY OF THE SIXTH
AMENDMENT THAT "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY
THE RIGHT  ...  TO BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION; ...  ." 

THE CONSTITUTIONAL PROVISION THAT A TRIAL MAY BE HELD IN A SERIOUS
FEDERAL CRIMINAL CASE ONLY IF A GRAND JURY HAS FIRST INTERVENED
REFLECTS CENTURIES OF ANTECEDENT DEVELOPMENT OF COMMON LAW, GOING BACK
TO THE ASSIZE OF CLARENDON IN 1166.  (FN10)  "THE GRAND JURY IS AN
ENGLISH INSTITUTION, BROUGHT TO THIS COUNTRY BY THE EARLY COLONISTS AND
INCORPORATED IN THE CONSTITUTION BY THE FOUNDERS.  THERE IS EVERY
REASON TO BELIEVE THAT OUR CONSTITUTIONAL GRAND JURY WAS INTENDED TO
OPERATE SUBSTANTIALLY LIKE ITS ENGLISH PROGENITOR.  THE BASIC PURPOSE
OF THE ENGLISH GRAND JURY WAS TO PROVIDE A FAIR METHOD FOR INSTITUTING
CRIMINAL PROCEEDINGS AGAINST PERSONS BELIEVED TO HAVE COMMITTED
CRIMES."  COSTELLO V. UNITED STATES, 350 U.S. 359, 362.  SEE
MCCLINTOCK, INDICTMENT BY A GRAND JURY, 26 MINN. L. REV. 153; ORFIELD,
CRIMINAL PROCEDURE FROM ARREST TO APPEAL, 137-140, 144-146.    FOR MANY
YEARS THE FEDERAL COURTS WERE GUIDED IN THEIR JUDGMENTS CONCERNING THE
CONSTRUCTION AND SUFFICIENCY OF GRAND JURY INDICTMENTS BY THE COMMON
LAW ALONE.  NOT UNTIL 1872 DID CONGRESS ENACT GENERAL LEGISLATION
TOUCHING UPON THE SUBJECT.  IN THAT YEAR A STATUTE WAS ENACTED WHICH
REFLECTED THE DRIFT OF THE LAW AWAY FROM THE RULES OF TECHNICAL AND
FORMALIZED PLEADING WHICH HAD CHARACTERIZED AN EARLIER ERA.  THE 1872
STATUTE PROVIDED THAT "NO INDICTMENT FOUND AND PRESENTED BY A GRAND
JURY IN ANY DISTRICT OR CIRCUIT OR OTHER COURT OF THE UNITED STATES
SHALL BE DEEMED INSUFFICIENT, NOR SHALL THE TRIAL, JUDGMENT, OR OTHER
PROCEEDING THEREON BE AFFECTED BY REASON OF ANY DEFECT OR IMPERFECTION
IN MATTER OF FORM ONLY, WHICH SHALL NOT TEND TO THE PREJUDICE OF THE
DEFENDANT."  17 STAT. 198.  THIS LEGISLATION HAS NOW BEEN REPEALED, BUT
ITS SUBSTANCE IS PRESERVED IN THE MORE GENERALIZED PROVISION OF RULE
52(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, WHICH STATES THAT
"ANY ERROR, DEFECT, IRREGULARITY OR VARIANCE WHICH DOES NOT AFFECT
SUBSTANTIAL RIGHTS SHALL BE DISREGARDED."  (FN11) 

THERE WAS APPARENTLY NO OTHER LEGISLATION DEALING WITH THE SUBJECT OF
INDICTMENTS GENERALLY UNTIL THE PROMULGATION OF RULE 7(C), FED. RULES
CRIM. PROC., IN 1946.  THE RULE PROVIDES: 

"THE INDICTMENT OR THE INFORMATION SHALL BE A PLAIN, CONCISE AND
DEFINITE WRITTEN STATEMENT OF THE ESSENTIAL FACTS CONSTITUTING THE
OFFENSE CHARGED.  IT SHALL BE SIGNED BY THE ATTORNEY FOR THE
GOVERNMENT.  IT NEED NOT CONTAIN A FORMAL COMMENCEMENT, A FORMAL
CONCLUSION OR ANY OTHER MATTER NOT NECESSARY TO SUCH STATEMENT. 
ALLEGATIONS MADE IN ONE COUNT MAY BE INCORPORATED BY REFERENCE IN
ANOTHER COUNT.  IT MAY BE ALLEGED IN A SINGLE COUNT THAT THE MEANS BY
WHICH THE DEFENDANT COMMITTED THE OFFENSE ARE UNKNOWN OR THAT HE
COMMITTED IT BY ONE OR MORE SPECIFIED MEANS.  THE INDICTMENT OR
INFORMATION SHALL STATE FOR EACH COUNT THE OFFICIAL OR CUSTOMARY
CITATION OF THE STATUTE, RULE, REGULATION OR OTHER PROVISION OF LAW
WHICH THE DEFENDANT IS ALLEGED THEREIN TO HAVE VIOLATED.  ERROR IN THE
CITATION OR ITS OMISSION SHALL NOT BE GROUND FOR DISMISSAL OF THE
INDICTMENT OR INFORMATION OR FOR REVERSAL OF A CONVICTION IF THE ERROR
OR OMISSION DID NOT MISLEAD THE DEFENDANT TO HIS PREJUDICE." 

AS WE HAVE ELSEWHERE NOTED, "THIS COURT HAS, IN RECENT YEARS, UPHELD
MANY CONVICTIONS IN THE FACE OF QUESTIONS CONCERNING THE SUFFICIENCY OF
THE CHARGING PAPERS.  CONVICTIONS ARE NO LONGER REVERSED BECAUSE OF
MINOR AND TECHNICAL DEFICIENCIES WHICH DID NOT PREJUDICE THE ACCUSED. 
(CITING CASES.)  THIS HAS BEEN A SALUTARY DEVELOPMENT IN THE CRIMINAL
LAW."  SMITH V. UNITED STATES, 360 U.S. 1, 9.  "BUT," AS THE SMITH
OPINION WENT ON TO POINT OUT, "THE SUBSTANTIAL SAFEGUARDS TO THOSE
CHARGED WITH SERIOUS CRIMES CANNOT BE ERADICATED UNDER THE GUISE OF
TECHNICAL DEPARTURES FROM THE RULES."  IBID. RESOLUTION OF THE ISSUE
PRESENTED IN THE CASES BEFORE US THUS ULTIMATELY DEPENDS UPON THE
NATURE OF "THE SUBSTANTIAL SAFEGUARDS" TO A CRIMINAL DEFENDANT WHICH AN
INDICTMENT IS DESIGNED TO PROVIDE.  STATED CONCRETELY, DOES THE
OMISSION FROM AN INDICTMENT UNDER 2 U.S.C. SEC. 192 OF THE SUBJECT
UNDER CONGRESSIONAL COMMITTEE INQUIRY AMOUNT TO NO MORE THAN A
TECHNICAL DEFICIENCY OF NO PREJUDICE TO THE DEFENDANT?  OR DOES SUCH AN
OMISSION DEPRIVE THE DEFENDANT OF ONE OF THE SIGNIFICANT PROTECTIONS
WHICH THE GUARANTY OF A GRAND JURY INDICTMENT WAS INTENDED TO CONFER? 

IN A NUMBER OF CASES THE COURT HAS EMPHASIZED TWO OF THE PROTECTIONS
WHICH AN INDICTMENT IS INTENDED TO GUARANTEE, REFLECTED BY TWO OF THE
CRITERIA BY WHICH THE SUFFICIENCY OF AN INDICTMENT IS TO BE MEASURED. 
THESE CRITERIA ARE, FIRST, WHETHER THE INDICTMENT "CONTAINS THE
ELEMENTS OF THE OFFENSE INTENDED TO BE CHARGED, 'AND SUFFICIENTLY
APPRISES THE DEFENDANT OF WHAT HE MUST BE PREPARED TO MEET,'"  AND,
SECONDLY, "'IN CASE ANY OTHER PROCEEDINGS ARE TAKEN AGAINST HIM FOR A
SIMILAR OFFENCE, 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; ROSEN V. UNITED STATES, 161 U.S. 29,
34."  HAGNER V. UNITED STATES, 285 U.S. 427, 431.  SEE POTTER V. UNITED
STATES, 155 U.S. 438, 445; BARTELL V. UNITED STATES, 227 U.S. 427, 431;
BERGER V. UNITED STATES, 295 U.S. 78, 82; UNITED STATES V. DEBROW, 346
U.S. 374, 377-378. 

WITHOUT DOUBT THE SECOND OF THESE PRELIMINARY CRITERIA WAS
SUFFICIENTLY MET BY THE INDICTMENTS IN THESE CASES.  SINCE THE
INDICTMENTS SET OUT NOT ONLY THE TIMES AND PLACES OF THE HEARINGS AT
WHICH THE PETITIONERS REFUSED TO TESTIFY, BUT ALSO SPECIFIED THE
PRECISE QUESTIONS WHICH THEY THEN AND THERE REFUSED TO ANSWER, IT CAN
HARDLY BE DOUBTED THAT THE PETITIONERS WOULD BE FULLY PROTECTED FROM
AGAIN BEING PUT IN JEOPARDY FOR THE SAME OFFENSE, PARTICULARLY WHEN IT
IS REMEMBERED THAT THEY COULD RELY UPON OTHER PARTS OF THE PRESENT
RECORD IN THE EVENT THAT FUTURE PROCEEDINGS SHOULD BE TAKEN AGAINST
THEM.  SEE MCCLINTOCK, INDICTMENT BY A GRAND JURY, 26 MINN. L. REV.
153, 160; BARTELL V. UNITED STATES, 227 U.S. 427, 433.  THE VICE OF
THESE INDICTMENTS, RATHER, IS THAT THEY FAILED TO SATISFY THE FIRST
ESSENTIAL CRITERION BY WHICH THE SUFFICIENCY OF AN INDICTMENT IS TO BE
TESTED, I.E., THAT THEY FAILED TO SUFFICIENTLY APPRISE THE DEFENDANT
"OF WHAT HE MUST BE PREPARED TO MEET." 

AS HAS BEEN POINTED OUT, THE VERY CORE OF CRIMINALITY UNDER 2 U.S.C.
SEC. 192 IS PERTINENCY TO THE SUBJECT UNDER INQUIRY OF THE QUESTIONS
WHICH THE DEFENDANT REFUSED TO ANSWER.  WHAT THE SUBJECT ACTUALLY WAS,
THEREFORE, IS CENTRAL TO EVERY PROSECUTION UNDER THE STATUTE.  WHERE
GUILT DEPENDS SO CRUCIALLY UPON SUCH A SPECIFIC IDENTIFICATION OF FACT,
OUR CASES HAVE UNIFORMLY HELD THAT AN INDICTMENT MUST DO MORE THAN
SIMPLY REPEAT THE LANGUAGE OF THE CRIMINAL STATUTE. 

"IT IS AN ELEMENTARY PRINCIPLE OF CRIMINAL PLEADING, THAT WHERE THE
DEFINITION OF AN OFFENCE, WHETHER IT BE AT COMMON LAW OR BY STATUTE,
'INCLUDES GENERIC TERMS, IT IS NOT SUFFICIENT THAT THE INDICTMENT SHALL
CHARGE THE OFFENCE IN THE SAME GENERIC TERMS AS IN THE DEFINITION; BUT
IT MUST STATE THE SPECIES, - IT MUST DESCEND TO PARTICULARS.'"  UNITED
STATES V. CRUIKSHANK, 92 U.S. 542, 558.  AN INDICTMENT NOT FRAMED TO
APPRISE THE DEFENDANT "WITH REASONABLE CERTAINTY, OF THE NATURE OF THE
ACCUSATION AGAINST HIM  ...  IS DEFECTIVE, ALTHOUGH IT MAY FOLLOW THE
LANGUAGE OF THE STATUTE."  UNITED STATES V. SIMMONS, 96 U.S. 360, 362. 
"IN AN INDICTMENT UPON A STATUTE, IT IS NOT SUFFICIENT TO SET FORTH THE
OFFENCE IN THE WORDS OF THE STATUTE, UNLESS THOSE WORDS OF THEMSELVES
FULLY, DIRECTLY, AND EXPRESSLY, WITHOUT ANY UNCERTAINTY OR AMBIGUITY,
SET FORTH ALL THE ELEMENTS NECESSARY TO CONSTITUTE THE OFFENCE INTENDED
TO BE PUNISHED; ...  " UNITED STATES V. CARLL, 105 U.S. 611, 612. 
"UNDOUBTEDLY THE LANGUAGE OF THE STATUTE MAY BE USED IN THE GENERAL
DESCRIPTION OF AN OFFENCE, BUT IT MUST BE ACCOMPANIED WITH SUCH A
STATEMENT OF THE FACTS AND CIRCUMSTANCES AS WILL INFORM THE ACCUSED OF
THE SPECIFIC OFFENCE, COMING UNDER THE GENERAL DESCRIPTION, WITH WHICH
HE IS CHARGED."  UNITED STATES V. HESS, 124 U.S. 483, 487.  SEE ALSO
PETTIBONE V. UNITED STATES, 148 U.S. 197, 202-204; BLITZ V. UNITED
STATES, 153 U.S. 308, 315; KECK V. UNITED STATES, 172 U.S. 434, 437;
MORISSETTE V. UNITED STATES, 342 U.S. 246, 270, N. 30.  CF. UNITED
STATES V. PETRILLO, 332 U.S. 1, 10-11.  (FN12)  THAT THESE BASIC
PRINCIPLES OF FUNDAMENTAL FAIRNESS RETAIN THEIR FULL VITALITY UNDER
MODERN CONCEPTS OF PLEADING, AND SPECIFICALLY UNDER RULE 7(C) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE, IS ILLUSTRATED BY MANY RECENT
FEDERAL DECISIONS.  (FN13) 

THE VICE WHICH INHERES IN THE FAILURE OF AN INDICTMENT UNDER 2 U.S.C.
SEC. 192 TO IDENTIFY THE SUBJECT UNDER INQUIRY IS THUS THE VIOLATION OF
THE BASIC PRINCIPLE "THAT THE ACCUSED MUST BE APPRISED BY THE
INDICTMENT, WITH REASONABLE CERTAINTY, OF THE NATURE OF THE ACCUSATION
AGAINST HIM, ...  "  UNITED STATES V. SIMMONS, SUPRA, AT 362.  A
CRYPTIC FORM OF INDICTMENT IN CASES OF THIS KIND REQUIRES THE DEFENDANT
TO GO TO TRIAL WITH THE CHIEF ISSUE UNDEFINED.  IT ENABLES HIS
CONVICTION TO REST ON ONE POINT AND THE AFFIRMANCE OF THE CONVICTION TO
REST ON ANOTHER.  IT GIVES THE PROSECUTION FREE HAND ON APPEAL TO FILL
IN THE GAPS OF PROOF BY SURMISE OR CONJECTURE.  THE COURT HAS HAD
OCCASION BEFORE NOW TO CONDEMN JUST SUCH A PRACTICE IN A QUITE
DIFFERENT FACTUAL SETTING.  COLE V. ARKANSAS, 333 U.S. 196, 201-202. 
AND THE UNFAIRNESS AND UNCERTAINTY WHICH HAVE CHARACTERISTICALLY
INFECTED CRIMINAL PROCEEDINGS UNDER THIS STATUTE WHICH WERE BASED UPON
INDICTMENTS WHICH FAILED TO SPECIFY THE SUBJECT UNDER INQUIRY ARE
ILLUSTRATED BY THE CASES IN THIS COURT WE HAVE ALREADY DISCUSSED.  THE
SAME UNCERTAINTY AND UNFAIRNESS ARE UNDERSCORED BY  THE RECORDS OF THE
CASES NOW BEFORE US.  A SINGLE EXAMPLE WILL SUFFICE TO ILLUSTRATE THE
POINT. 

IN NO. 12, PRICE V. UNITED STATES, THE PETITIONER REFUSED TO ANSWER A
NUMBER OF QUESTIONS PUT TO HIM BY THE INTERNAL SECURITY SUBCOMMITTEE OF
THE SENATE JUDICIARY COMMITTEE.  AT THE BEGINNING OF THE HEARING IN
QUESTION, THE CHAIRMAN AND OTHER SUBCOMMITTEE MEMBERS MADE WIDELY
MEANDERING STATEMENTS PURPORTING TO IDENTIFY THE SUBJECT UNDER
INQUIRY.  IT WAS SAID THAT THE HEARINGS WERE "NOT  ...  AN ATTACK UPON
THE FREE PRESS," THAT THE INVESTIGATION WAS OF "SUCH ATTEMPT AS MAY BE
DISCLOSED ON THE PART OF THE COMMUNIST PARTY  ...  TO INFLUENCE OR TO
SUBVERT THE AMERICAN PRESS."  IT WAS ALSO SAID THAT "WE ARE SIMPLY
INVESTIGATING COMMUNISM WHEREVER WE FIND IT."  IN DEALING WITH A
WITNESS WHO TESTIFIED SHORTLY BEFORE PRICE, COUNSEL FOR THE
SUBCOMMITTEE EMPHATICALLY DENIED THAT IT WAS THE SUBCOMMITTEE'S PURPOSE
"TO INVESTIGATE COMMUNIST INFILTRATION OF THE PRESS AND OTHER FORMS OF
COMMUNICATION."  BUT WHEN PRICE WAS CALLED TO TESTIFY BEFORE THE
SUBCOMMITTEE NO ONE OFFERED EVEN TO ATTEMPT TO INFORM HIM OF WHAT
SUBJECT THE SUBCOMMITTEE DID HAVE UNDER INQUIRY.  AT THE TRIAL THE
GOVERNMENT TOOK THE POSITION THAT THE SUBJECT UNDER INQUIRY HAD BEEN
COMMUNIST ACTIVITIES GENERALLY.  THE DISTRICT JUDGE BEFORE WHOM THE
CASE WAS TRIED FOUND THAT "THE QUESTIONS PUT WERE PERTINENT TO THE
MATTER UNDER INQUIRY" WITHOUT INDICATING WHAT HE THOUGHT THE SUBJECT
UNDER INQUIRY WAS.  THE COURT OF APPEALS, IN AFFIRMING THE CONVICTION,
LIKEWISE OMITTED TO STATE WHAT IT THOUGHT THE SUBJECT UNDER INQUIRY HAD
BEEN.  IN THIS COURT THE GOVERNMENT CONTENDS THAT THE SUBJECT UNDER
INQUIRY AT THE TIME THE PETITIONER WAS CALLED TO TESTIFY WAS "COMMUNIST
ACTIVITY IN NEWS MEDIA."  (FN14) 

IT IS DIFFICULT TO IMAGINE A CASE IN WHICH AN INDICTMENT'S
INSUFFICIENCY RESULTED SO CLEARLY IN THE INDICTMENT'S FAILURE TO
FULFILL ITS PRIMARY OFFICE - TO INFORM THE DEFENDANT OF THE NATURE OF
THE ACCUSATION AGAINST HIM.  PRICE REFUSED TO ANSWER SOME QUESTIONS OF
A SENATE SUBCOMMITTEE.  HE WAS NOT TOLD AT THE TIME WHAT SUBJECT THE
SUBCOMMITTEE WAS INVESTIGATING.  THE PRIOR RECORD OF THE SUBCOMMITTEE
HEARINGS, WITH WHICH PRICE MAY OR MAY NOT HAVE BEEN FAMILIAR, GAVE A
COMPLETELY CONFUSED AND INCONSISTENT ACCOUNT OF WHAT, IF ANYTHING, THAT
SUBJECT WAS.  PRICE WAS PUT TO TRIAL AND CONVICTED UPON AN INDICTMENT
WHICH DID NOT EVEN PURPORT TO INFORM HIM IN ANY WAY OF THE IDENTITY OF
THE TOPIC UNDER SUBCOMMITTEE INQUIRY.  AT EVERY STAGE IN THE ENSUING
CRIMINAL PROCEEDING PRICE WAS MET WITH A DIFFERENT THEORY, OR BY NO
THEORY AT ALL, AS TO WHAT THE TOPIC HAD BEEN.  FAR FROM INFORMING PRICE
OF THE NATURE OF THE ACCUSATION AGAINST HIM, THE INDICTMENT INSTEAD
LEFT THE PROSECUTION FREE TO ROAM AT LARGE - TO SHIFT ITS THEORY OF
CRIMINALITY SO AS TO TAKE ADVANTAGE OF EACH PASSING VICISSITUDE OF THE
TRIAL AND APPEAL.  YET PRICE COULD BE GUILTY OF NO CRIMINAL OFFENCE
UNLESS THE QUESTIONS HE REFUSED TO ANSWER WERE IN FACT PERTINENT TO A
SPECIFIC TOPIC UNDER SUBCOMMITTEE INQUIRY AT THE TIME HE WAS
INTERROGATED.  SINCLAIR V. UNITED STATES, 279 U.S. 263, AT 292. 

IT HAS LONG BEEN RECOGNIZED THAT THERE IS AN IMPORTANT COROLLARY
PURPOSE TO BE SERVED BY THE REQUIREMENT THAT AN INDICTMENT SET OUT "THE
SPECIFIC OFFENCE, COMING UNDER THE GENERAL DESCRIPTION," WITH WHICH THE
DEFENDANT IS CHARGED.  THIS PURPOSE, AS DEFINED IN UNITED STATES V.
CRUIKSHANK, 92 U.S. 542, 558, IS "TO INFORM THE COURT OF THE FACTS
ALLEGED, SO THAT IT MAY DECIDE WHETHER THEY ARE SUFFICIENT IN LAW TO
SUPPORT A CONVICTION, IF ONE SHOULD BE HAD."  (FN15)  THIS CRITERION IS
OF THE GREATEST RELEVANCE HERE, IN THE LIGHT OF THE DIFFICULTIES AND
UNCERTAINTIES WITH WHICH THE FEDERAL TRIAL AND REVIEWING COURTS HAVE
HAD TO DEAL IN CASES ARISING UNDER 2 U.S.C. SEC. 192, TO WHICH
REFERENCE HAS ALREADY BEEN MADE.  SEE, E.G., WATKINS V. UNITED STATES,
354 U.S. 178; DEUTCH V. UNITED STATES, 367 U.S. 456.  VIEWED IN THIS
CONTEXT, THE RULE IS DESIGNED NOT ALONE FOR THE PROTECTION OF THE
DEFENDANT, BUT FOR THE BENEFIT OF THE PROSECUTION AS WELL, BY MAKING IT
POSSIBLE FOR COURTS CALLED UPON TO PASS ON THE VALIDITY OF CONVICTIONS
UNDER THE STATUTE TO BRING AN ENLIGHTENED JUDGMENT TO THAT TASK.  CF.
WATKINS V. UNITED STATES, SUPRA. 

IT IS ARGUED THAT ANY DEFICIENCY IN THE INDICTMENTS IN THESE CASES
COULD HAVE BEEN CURED BY BILLS OF PARTICULARS.  (FN16)  BUT IT IS A
SETTLED RULE THAT A BILL OF PARTICULARS CANNOT SAVE AN INVALID
INDICTMENT.  SEE UNITED STATES V. NORRIS, 281 U.S. 619, 622; UNITED
STATES V. LATTIMORE, 215 F.2D 847; BABB V. UNITED STATES, 218 F.2D 538;
STEINER V. UNITED STATES, 229 F.2D 745; UNITED STATES V. DIERKER, 164
F. SUPP. 304; 4 ANDERSON, WHARTON'S CRIMINAL LAW AND PROCEDURE, SEC.
1870.  WHEN CONGRESS PROVIDED THAT NO ONE COULD BE PROSECUTED UNDER 2
U.S.C. SEC. 192 EXCEPT UPON AN INDICTMENT, CONGRESS MADE THE BASIC
DECISION THAT ONLY A GRAND JURY COULD DETERMINE WHETHER A PERSON SHOULD
BE HELD TO ANSWER IN A CRIMINAL TRIAL FOR REFUSING TO GIVE TESTIMONY
PERTINENT TO A QUESTION UNDER CONGRESSIONAL COMMITTEE INQUIRY.  A GRAND
JURY, IN ORDER TO MAKE THAT ULTIMATE DETERMINATION, MUST NECESSARILY
DETERMINE WHAT THE QUESTION UNDER INQUIRY WAS.  TO ALLOW THE
PROSECUTOR, OR THE COURT, TO MAKE A SUBSEQUENT GUESS AS TO WHAT WAS IN
THE MINDS OF THE GRAND JURY AT THE TIME THEY RETURNED THE INDICTMENT
WOULD DEPRIVE THE DEFENDANT OF A BASIC PROTECTION WHICH THE GUARANTY OF
THE INTERVENTION OF A GRAND JURY WAS DESIGNED TO SECURE.  FOR A
DEFENDANT COULD THEN BE CONVICTED ON THE BASIS OF FACTS NOT FOUND BY,
AND PERHAPS NOT EVEN PRESENTED TO, THE GRAND JURY WHICH INDICTED HIM. 
SEE ORFIELD, CRIMINAL PROCEDURE FROM ARREST TO APPEAL, 243.    THIS
UNDERLYING PRINCIPLE IS REFLECTED BY THE SETTLED RULE IN THE FEDERAL
COURTS THAT AN INDICTMENT MAY NOT BE AMENDED EXCEPT BY RESUBMISSION TO
THE GRAND JURY, UNLESS THE CHANGE IS MERELY A MATTER OF FORM.  EX PAPTE
BAIN, 121 U.S. 1; UNITED STATES V. NORRIS, 281 U.S. 619; STIRONE V.
UNITED STATES, 361 U.S. 212.  "IF IT LIES WITHIN THE PROVINCE OF A
COURT TO CHANGE THE CHARGING PART OF AN INDICTMENT TO SUIT ITS OWN
NOTIONS OF WHAT IT OUGHT TO HAVE BEEN, OR WHAT THE GRAND JURY WOULD
PROBABLY HAVE MADE IT IF THEIR ATTENTION HAD BEEN CALLED TO SUGGESTED
CHANGES, THE GREAT IMPORTANCE WHICH THE COMMON LAW ATTACHES TO AN
INDICTMENT BY A GRAND JURY, AS A PREREQUISITE TO A PRISONER'S TRIAL FOR
A CRIME, AND WITHOUT WHICH THE CONSTITUTION SAYS 'NO PERSON SHALL BE
HELD TO ANSWER,' MAY BE FRITTERED AWAY UNTIL ITS VALUE IS ALMOST
DESTROYED  ...  .  ANY OTHER DOCTRINE WOULD PLACE THE RIGHTS OF THE
CITIZEN, WHICH WERE INTENDED TO BE PROTECTED BY THE CONSTITUTIONAL
PROVISION, AT THE MERCY OR CONTROL OF THE COURT OR PROSECUTING
ATTORNEY; FOR, IF IT BE ONCE HELD THAT CHANGES CAN BE MADE BY THE
CONSENT OR THE ORDER OF THE COURT IN THE BODY OF THE INDICTMENT AS
PRESENTED BY THE GRAND JURY, AND THE PRISONER CAN BE CALLED UPON TO
ANSWER TO THE INDICTMENT AS THUS CHANGED, THE RESTRICTION WHICH THE
CONSTITUTION PLACES UPON THE POWER OF THE COURT, IN REGARD TO THE
PREREQUISITE OF AN INDICTMENT, IN REALITY NO LONGER EXISTS."  EX PARTE
BAIN, SUPRA, AT 10, 13.  WE REAFFIRMED THIS RULE ONLY RECENTLY,
POINTING OUT THAT "THE VERY PURPOSE OF THE REQUIREMENT THAT A MAN BE
INDICTED BY GRAND JURY IS TO LIMIT HIS JEOPARDY TO OFFENSES CHARGED BY
A GROUP OF HIS FELLOW CITIZENS ACTING INDEPENDENTLY OF EITHER
PROSECUTING ATTORNEY OR JUDGE."  STIRONE V. UNITED STATES, SUPRA, AT
218.  (FN17) 

FOR THESE REASONS WE CONCLUDE THAT AN INDICTMENT UNDER 2 U.S.C. SEC.
192 MUST STATE THE QUESTION UNDER CONGRESSIONAL COMMITTEE INQUIRY AS
FOUND BY THE GRAND JURY.  (FN18)  ONLY THEN CAN THE FEDERAL COURTS
RESPONSIBLY CARRY OUT THE DUTY WHICH CONGRESS IMPOSED UPON THEM MORE
THAN A CENTURY AGO: 

"THE QUESTION MUST BE PERTINENT TO THE SUBJECT-MATTER, AND THAT WILL
HAVE TO BE DECIDED BY THE COURTS OF JUSTICE ON THE INDICTMENT."  (FN19)
REVERSED. 

FN1  108 U.S. APP. D.C. 140, 280 F.2D 688; 108 U.S. APP. D.C. 153,
280 F.2D 701; 108 U.S. APP. D.C. 226, 281 F.2D 59; 108 U.S. APP. D.C.
160, 280 F.2D 708; 108 U.S. APP. D.C.  167, 280 F.2D 715; 108 U.S. APP.
D.C. 130, 280 F.2D 678. 

FN2  "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 JOINT
COMMITTEE ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO
HOUSES OF CONGRESS, 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 JAIL FOR NOT LESS THAN
ONE MONTH NOR MORE THAN TWELVE MONTHS."  2 U.S.C. SEC. 192. 

FN3  NO. 8 AND NO. 128 GREW OUT OF HEARINGS BEFORE SUBCOMMITTEES OF
THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES.  THE OTHER FOUR CASES
GREW OUT OF HEARINGS BEFORE THE INTERNAL SECURITY SUBCOMMITTEE OF THE
SENATE JUDICIARY COMMITTEE. 

FN4  THE INDICTMENT IN NO. 8 IS TYPICAL: 

"THE GRAND JURY CHARGES:

                                  "INTRODUCTION 

"ON NOVEMBER 17, 1954, IN THE DISTRICT OF COLUMBIA, A SUBCOMMITTEE OF
THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES
WAS CONDUCTING HEARINGS, PURSUANT TO PUBLIC LAW 601, SECTION 121, 79TH
CONGRESS, 2D SESSION, (60 STAT. 828), AND TO H. RES.  5, 83D CONGRESS. 

"DEFENDANT, NORTON ANTHONY RUSSELL, APPEARED AS A WITNESS BEFORE THAT
SUBCOMMITTEE, AT THE PLACE AND ON THE DATE ABOVE STATED, AND WAS ASKED
QUESTIONS WHICH WERE PERTINENT TO THE QUESTION THEN UNDER INQUIRY. 
THEN AND THERE THE DEFENDANT UNLAWFULLY REFUSED TO ANSWER THOSE
PERTINENT QUESTIONS.   THE ALLEGATIONS OF THIS INTRODUCTION ARE ADOPTED
AND INCORPORATED INTO THE COUNTS OF THIS INDICTMENT WHICH FOLLOW, EACH
OF WHICH COUNTS WILL IN ADDITION MERELY DESCRIBE THE QUESTION WHICH WAS
ASKED OF THE DEFENDANT AND WHICH HE REFUSED TO ANSWER." 

(THE QUESTIONS WHICH RUSSELL ALLEGEDLY REFUSED TO ANSWER WERE THEN
QUOTED VERBATIM UNDER SEPARATELY NUMBERED COUNTS.) 

FN5  THE MOTION IN NO. 9 IS TYPICAL: 

"THE DEFENDANT MOVES THAT THE INDICTMENT BE DISMISSED ON THE
FOLLOWING GROUNDS: 

"1.  THE INDICTMENT FAILS TO PLEAD THE FOLLOWING ESSENTIAL AND
MATERIAL ELEMENTS OF THE OFFENSE: 

     *    *         *         *         * 

"C.  THE NATURE OF THE 'QUESTION THEN UNDER INQUIRY' TO WHICH THE
QUESTIONS ADDRESSED TO DEFENDANT ARE ALLEGED TO BE RELEVANT." 

FN6  2 U.S.C. SEC. 194 PROVIDES: 

"WHENEVER A WITNESS SUMMONED AS MENTIONED IN SECTION 192 OF THIS
TITLE FAILS TO APPEAR TO TESTIFY OR FAILS TO PRODUCE ANY BOOKS, PAPERS,
RECORDS, OR DOCUMENTS, AS REQUIRED, OR WHENEVER ANY WITNESS SO SUMMONED
REFUSES TO ANSWER ANY QUESTION PERTINENT TO THE SUBJECT UNDER INQUIRY
BEFORE EITHER HOUSE, OR ANY JOINT COMMITTEE ESTABLISHED BY A JOINT OR
CONCURRENT RESOLUTION OF THE TWO HOUSES OF CONGRESS, OR ANY COMMITTEE
OR SUBCOMMITTEE OF EITHER HOUSE OF CONGRESS, AND THE FACT OF SUCH
FAILURE OR FAILURES IS REPORTED TO EITHER HOUSE WHILE CONGRESS IS IN
SESSION, OR WHEN CONGRESS IS NOT IN SESSION, A STATEMENT OF FACT
CONSTITUTING SUCH FAILURE IS REPORTED TO AND FILED WITH THE PRESIDENT
OF THE SENATE OR THE SPEAKER OF THE HOUSE, IT SHALL BE THE DUTY OF THE
SAID PRESIDENT OF THE SENATE OR SPEAKER OF THE HOUSE, AS THE CASE MAY
BE, TO CERTIFY, AND HE SHALL SO CERTIFY, THE STATEMENT OF FACTS
AFORESAID UNDER THE SEAL OF THE SENATE OR HOUSE, AS THE CASE MAY BE, TO
THE APPROPRIATE UNITED STATES ATTORNEY, WHOSE DUTY IT SHALL BE TO BRING
THE MATTER BEFORE THE GRAND JURY FOR ITS ACTION." 

FN7  THE QUESTION WAS PRESENTED BUT NOT REACHED IN SACHER V. UNITED
STATES, 356 U.S. 576, WHERE THE CONVICTION WAS REVERSED ON OTHER
GROUNDS.  THE QUESTION WAS ALSO RAISED IN THE PETITION FOR CERTIORARI
IN BRADEN V. UNITED STATES, 365 U.S. 431, BUT WAS ABANDONED WHEN THE
CASE WAS BRIEFED AND ARGUED ON THE MERITS.  ALTHOUGH THE QUESTION WAS
DECIDED BY THE LOWER COURT IN BARENBLATT V. UNITED STATES, 100 U.S.
APP. D.C. 13, 240 F.2D 875, IT WAS NOT RAISED IN THIS COURT, 360 U.S.
109. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT HAS PASSED
ON THE QUESTION, HOLDING THAT THE INDICTMENT NEED NOT SET FORTH THE
SUBJECT UNDER COMMITTEE INQUIRY.  SEE BARENBLATT V. UNITED STATES, 100
U.S. APP. D.C. 13, 240 F.2D 875; SACHER V. UNITED STATES, 102 U.S. APP.
D.C. 264, 252 F.2D 828.  INDICTMENTS RETURNED IN THAT CIRCUIT OF COURSE
REFLECT THIS RULE.  SEE CASES CITED IN MR. JUSTICE HARLAN'S DISSENTING
OPINION, POST, P. 782, N. 2.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT SUSTAINED AN INDICTMENT UNDER 2 U.S.C. SEC. 192 WHICH DID NOT
SET FORTH THE SUBJECT UNDER INQUIRY IN UNITED STATES V. JOSEPHSON, 165
F.2D 82.  HOWEVER, JOSEPHSON APPEARS TO HAVE BEEN SUBSTANTIALLY LIMITED
BY THE SAME COURT IN UNITED STATES V. LAMONT, 236 F.2D 312, AND
INDICTMENTS UNDER 2 U.S.C. SEC. 192 CURRENTLY BEING RETURNED IN THE
SECOND CIRCUIT DO IN FACT SET FORTH THE SUBJECT UNDER INQUIRY.  SEE THE
UNREPORTED INDICTMENTS IN UNITED STATES V. YARUS (D.C.S.D.N.Y.)  NO. C
152-239 (THE OPINION ACQUITTING DEFENDANT YARUS IS REPORTED AT 198 F.
SUPP. 425); UNITED STATES V. TUROFF (D.C.W.D.N.Y.)  NO. 7539-C (THE
OPINION OF THE COURT OF APPEALS REVERSING DEFENDANT TUROFF'S CONVICTION
IS REPORTED AT 291 F.2D 864). 

NO OTHER COURT OF APPEALS HAS PASSED SQUARELY ON THE POINT.  IN
BRADEN V. UNITED STATES, 272 F.2D 653, THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT RULED THAT THE INDICTMENT NEED NOT EXPLAIN HOW AND WHY
THE QUESTIONS WERE PERTINENT TO THE SUBJECT UNDER INQUIRY, BUT DID NOT
DISCUSS WHETHER THE SUBJECT ITSELF HAD TO BE SPECIFIED.  IN A NUMBER OF
OTHER RECENT CASES ARISING UNDER 2 U.S.C. SEC. 192 THE INDICTMENTS HAVE
STATED THE SUBJECT UNDER INQUIRY.  SEE, IN ADDITION TO THE EXAMPLES
CITED ABOVE, THE INDICTMENT SET FORTH IN UNITED STATES V. YELLIN, 287
F.2D 292, 293, N. 2 (C.A. 7TH CIR.); THE INDICTMENT DESCRIBED IN DAVIS
V. UNITED STATES, 269 F.2D 357, 359 (C.A. 6TH CIR.); AND THE UNREPORTED
INDICTMENT IN UNITED STATES V. LORCH (D.C.S.D. OHIO) CR. NO. 3185 (AN
INDICTMENT ARISING OUT OF THE SAME SERIES OF HEARINGS IN WHICH RUSSELL,
THE PETITIONER IN NO. 8, WAS INITIALLY SUMMONED TO TESTIFY). 

FN8  11 STAT. 155-156.  THE STATUTE, NOW 2 U.S.C. SECS. 192-194, WAS
ENACTED TO SUPPLEMENT THE ESTABLISHED CONTEMPT POWER OF CONGRESS
ITSELF.  JURNEY V. MACCRACKEN, 294 U.S. 125, 151.  THE SPECIFIC
BACKGROUND OF THE STATUTE'S ADOPTION IS SKETCHED IN WATKINS V. UNITED
STATES, 354 U.S., AT 207, N. 45.  SEE CONG. GLOBE, 34TH CONG., 3D SESS.
405.  SEE ALSO ID., AT 403-413, 426-433, 434-445.   EXCEPT FOR A BASIC
CHANGE IN THE IMMUNITY PROVISIONS IN 1862, 12 STAT. 333, THE
LEGISLATION HAS CONTINUED SUBSTANTIALLY UNCHANGED TO THE PRESENT TIME,
WITH ONLY A SLIGHT MODIFICATION IN LANGUAGE IN R.S. SECS. 102 AND 104. 
THE ONLY OTHER AMENDMENT IN THE SUBSTANTIVE PROVISIONS WAS MADE IN
1938, 52 STAT. 942, SO AS TO MAKE THE STATUTE APPLICABLE TO JOINT
COMMITTEES.  THE PROVISION REQUIRING GRAND JURY INDICTMENT HAS BEEN
AMENDED TWICE SINCE 1857.  THE ORIGINAL LEGISLATION PROVIDED FOR
CERTIFICATION ONLY TO THE UNITED STATES ATTORNEY FOR THE DISTRICT OF
COLUMBIA.  IN 1936 AN AMENDMENT WAS MADE TO PERMIT CERTIFICATION TO ANY
UNITED STATES ATTORNEY, 49 STAT. 2041.  IN 1938 THE PROVISION WAS
AMENDED TO BRING IT INTO ACCORD WITH THE JOINT COMMITTEE AMENDMENT OF
THE SUBSTANTIVE PROVISIONS OF THE LAW. 

FN9  IN THE WATKINS CASE THE COURT'S PRIMARY CONCERN WAS NOT WHETHER
PERTINENCY HAD BEEN PROVED AT THE CRIMINAL TRIAL, BUT WHETHER THE
PETITIONER HAD BEEN APPRISED OF THE PERTINENCY OF THE QUESTIONS AT THE
TIME HE HAD BEEN CALLED UPON TO ANSWER THEM.  THESE TWO ISSUES ARE, OF
COURSE, QUITE DIFFERENT.  SEE DEUTCH V. UNITED STATES, 367 U.S., AT 467
468.  BUT IDENTIFICATION OF THE SUBJECT UNDER INQUIRY IS ESSENTIAL TO
THE DETERMINATION OF EITHER ISSUE.  SEE BARENBLATT V. UNITED STATES,
360 U.S., AT 123-125. 

FN10  SEE I HOLDSWORTH, HISTORY OF ENGLISH LAW (7TH ED. 1956), 321
323; I POLLOCK AND MAITLAND, HISTORY OF ENGLISH LAW (2D ED. 1909), 137
155, AND VOL. II, PP. 647-653. 

FN11  THE 1872 STATUTE BECAME REV. STAT. SEC. 1025 AND ULTIMATELY 18
U.S.C. (1940 ED.)  SEC.  556.  THE STATUTE WAS REPEALED IN THE 1948
LEGISLATIVE REORGANIZATION OF TITLE 18, 62 STAT. 862, BECAUSE ITS
SUBSTANCE WAS CONTAINED IN FED. RULES CRIM. PROC., 52(A). 

FN12  ROSEN V. UNITED STATES, 161 U.S. 29, HEAVILY RELIED UPON IN THE
DISSENTING OPINION, IS INAPPOSITE.  IN THAT CASE THE COURT HELD THAT AN
INDICTMENT CHARGING THE MAILING OF OBSCENE MATERIAL DID NOT NEED TO
SPECIFY THE PARTICULAR PORTIONS OF THE PUBLICATION WHICH WERE ALLEGEDLY
OBSCENE.  AS POINTED OUT IN BARTELL V. UNITED STATES, 227 U.S. 427,
431, THE RULE ESTABLISHED IN ROSEN WAS ALWAYS REGARDED AS A "WELL
RECOGNIZED EXCEPTION" TO USUAL INDICTMENT RULES, APPLICABLE ONLY TO
"THE PLEADING OF PRINTED OR WRITTEN MATTER WHICH IS ALLEGED TO BE TOO
OBSCENE OR INDECENT TO BE SPREAD UPON THE RECORDS OF THE COURT."  UNDER
ROTH V. UNITED STATES, 354 U.S. 476, 488-489, THE ISSUE DEALT WITH IN
ROSEN WOULD PRESUMABLY NO LONGER ARISE. 

FN13  UNITED STATES V. LAMONT, 236 F.2D 312; MEER V. UNITED STATES,
235 F.2D 65; BABB V. UNITED STATES, 218 F.2D 538; UNITED STATES V.
SIMPLOT, 192 F. SUPP. 734; UNITED STATES V. DEVINE'S MILK LABORATORIES,
INC., 179 F. SUPP. 799; UNITED STATES V. APEX DISTRIBUTING CO., 148 F.
SUPP. 365. 

FN14  BRIEF FOR THE UNITED STATES, P. 26. 

FN15  THIS PRINCIPLE ENUNCIATED IN CRUIKSHANK RETAINS UNDIMINISHED
VITALITY, AS SEVERAL RECENT CASES ATTEST.  "ANOTHER REASON FOR THE
REQUIREMENT THAT EVERY INGREDIENT OF THE OFFENSE CHARGED MUST BE
CLEARLY AND ACCURATELY ALLEGED IN THE INDICTMENT, AND ONE SOMETIMES
OVERLOOKED, IS TO ENABLE THE COURT TO DECIDE WHETHER THE FACTS ALLEGED
ARE SUFFICIENT IN LAW TO WITHSTAND A MOTION TO DISMISS THE INDICTMENT
OR TO SUPPORT A CONVICTION IN THE EVENT THAT ONE SHOULD BE HAD." 
UNITED STATES V. LAMONT, 18 F.R.D. 27, 31.  "IN ADDITION TO INFORMING
THE DEFENDANT, ANOTHER PURPOSE SERVED BY THE INDICTMENT IS TO INFORM
THE TRIAL JUDGE WHAT THE CASE INVOLVES, SO THAT, AS HE PRESIDES AND IS
CALLED UPON TO MAKE RULINGS OF ALL SORTS, HE MAY BE ABLE TO DO SO
INTELLIGENTLY."  PUTTKAMMER, ADMINISTRATION OF CRIMINAL LAW, 125-126. 
SEE FLYING EAGLE PUBLICATIONS, INC., V. UNITED STATES, 273 F.2D 799;
UNITED STATES V. GOLDBERG, 225 F.2D 180; UNITED STATES V. SILVERMAN,
129 F. SUPP. 496; UNITED STATES V. RICHMAN, 190 F. SUPP. 889; UNITED
STATES V. CALLANAN, 113 F. SUPP. 766.  SEE 4 ANDERSON, WHARTON'S
CRIMINAL LAW AND PROCEDURE, 506; ORFIELD, INDICTMENT AND INFORMATION IN
FEDERAL CRIMINAL PROCEDURE, 13 SYRACUSE L. REV. 389, 392.  SEE ALSO
ORFIELD, CRIMINAL PROCEDURE FROM ARREST TO APPEAL, 226-230.    FN16  IN
NO. 128, GOJACK V. UNITED STATES, THE PETITIONER FILED A TIMELY MOTION
FOR A BILL OF PARTICULARS, REQUESTING THAT HE BE INFORMED OF THE
QUESTION UNDER SUBCOMMITTEE INQUIRY.  THE MOTION WAS DENIED. 

IN NO. 9, SHELTON V. UNITED STATES, THE PETITIONER FILED A SIMILAR
MOTION.  THE MOTION WAS GRANTED, AND THE GOVERNMENT RESPONDED ORALLY AS
FOLLOWS: 

"AS TO THE SECOND ASKING, THE GOVERNMENT CONTENDS, AND THE INDICTMENT
STATES, THAT THE INQUIRY BEING CONDUCTED WAS PURSUANT TO THIS
RESOLUTION.  WE DO NOT FEEL, AND IT IS NOT THE CASE, THAT THERE WAS ANY
SMALLER, MORE LIMITED INQUIRY BEING CONDUCTED.    "THIS COMMITTEE WAS
CONDUCTING THE INQUIRY FOR THE PURPOSES CONTAINED IN THE RESOLUTION AND
NO LESSER PURPOSE SO THAT, IN THAT SENSE, THE ASKING NO. 2 OF COUNSEL
WILL BE SUPPLIED BY HIS READING THE RESOLUTION." 

IN THE FOUR OTHER CASES NO MOTIONS FOR BILLS OF PARTICULARS WERE
FILED. 

FN17  SEE ALSO SMITH V. UNITED STATES, 360 U.S. 1, 13 (DISSENTING
OPINION); COMMENT, 35 MICH. L. REV. 456. 

FN18  THE FEDERAL PERJURY STATUTE, 18 U.S.C. SEC. 1621, MAKES IT A
CRIME FOR A PERSON UNDER OATH WILLFULLY TO STATE OR SUBSCRIBE TO "ANY
MATERIAL MATTER WHICH HE DOES NOT BELIEVE TO BE TRUE."  THE GOVERNMENT,
POINTING TO THE ANALOGY BETWEEN THE PERJURY MATERIALITY REQUIREMENT AND
THE PERTINENCY REQUIREMENT IN 2 U.S.C. SEC. 192 RECOGNIZED IN SINCLAIR
V. UNITED STATES, 279 U.S. 263, 298, CONTENDS THAT THE PRESENT CASES
ARE CONTROLLED BY MARKHAM V. UNITED STATES, 160 U.S. 319, WHERE THE
COURT SUSTAINED A PERJURY INDICTMENT.  BUT MARKHAM IS INAPPOSITE.  THE
ANALOGY BETWEEN THE PERJURY STATUTE AND 2 U.S.C. SEC. 192, WHILE
PERSUASIVE FOR SOME PURPOSES, IS NOT PERSUASIVE HERE, FOR THE
DETERMINATION OF THE SUBJECT UNDER INQUIRY DOES NOT PLAY THE CENTRAL
ROLE IN A PERJURY PROSECUTION WHICH IT PLAYS UNDER 2 U.S.C. SEC. 192. 
BUT EVEN WERE THE ANALOGY PERFECT MARKHAM WOULD STILL NOT CONTROL, FOR
IT HOLDS ONLY THAT A PERJURY INDICTMENT NEED NOT SET FORTH HOW AND WHY
THE STATEMENTS WERE ALLEGEDLY MATERIAL.  THE COURT CAREFULLY POINTED
OUT THAT THE INDICTMENT DID IN FACT REVEAL THE SUBJECT UNDER INQUIRY,
STATING THAT "AS THE FOURTH COUNT OF INDICTMENT CHARGED THAT SUCH
STATEMENT WAS MATERIAL TO AN INQUIRY PENDING BEFORE, AND WITHIN THE
JURISDICTION OF, THE COMMISSIONER OF PENSIONS, AND AS THE FAIR IMPORT
OF THAT COUNT WAS THAT THE INQUIRY BEFORE THE COMMISSIONER HAD
REFERENCE TO A CLAIM MADE BY THE ACCUSED UNDER THE PENSION LAWS, ON
ACCOUNT OF PERSONAL INJURIES RECEIVED WHILE HE WAS A SOLDIER, AND MADE
IT NECESSARY TO ASCERTAIN WHETHER THE ACCUSED HAD, SINCE THE WAR OR
AFTER HIS DISCHARGE FROM THE ARMY, RECEIVED AN INJURY TO THE FOREFINGER
OF HIS RIGHT HAND, WE THINK THAT THE FOURTH COUNT, ALTHOUGH UNSKILFILLY
DRAWN, SUFFICIENTLY INFORMED THE ACCUSED OF THE MATTER FOR WHICH HE WAS
INDICTED, AND, THEREFORE, MET THE REQUIREMENT THAT IT SHOULD SET FORTH
THE SUBSTANCE OF THE CHARGE AGAINST HIM."  160 U.S., AT 325-326.  THIS
HAS BEEN EQUALLY TRUE OF OTHER PERJURY INDICTMENTS SUSTAINED BY THE
COURT.  SEE HENDRICKS V. UNITED STATES, 223 U.S. 178; UNITED STATES V.
DEBROW, 346 U.S. 374 (THE INDICTMENT IN DEBROW IS SET FORTH IN THE
OPINION OF THE COURT OF APPEALS, 203 F.2D 699, 702, N. 1). 

FN19  SEE P. 757, SUPRA. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THESE CASES. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
NO. 10, WHITMAN V. UNITED STATES. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I THINK IT IS DESIRABLE TO
POINT OUT THAT IN A MAJORITY OF THE SIX CASES THAT WE DISPOSE OF TODAY
NO INDICTMENT, HOWEVER DRAWN, COULD IN MY VIEW BE SUSTAINED UNDER THE
REQUIREMENTS OF THE FIRST AMENDMENT. 

THE INVESTIGATION WAS CONCEDEDLY AN INVESTIGATION OF THE PRESS.  THIS
WAS CLEARLY BROUGHT OUT BY THE RECORD IN SHELTON, WHEREIN THE FOLLOWING
COLLOQUY WAS ALLEGED TO HAVE TAKEN PLACE AT THE COMMENCEMENT OF THE
SUBCOMMITTEE HEARINGS: 

"SENATOR HENNINGS.  ON THE SAME SUBJECT MATTER.  I DO BELIEVE IT IS
VERY IMPORTANT AT THE OUTSET FOR US TO MAKE IT ABUNDANTLY CLEAR, IF
THAT IS THE PURPOSE OF COUNSEL, AND IF IT IS THE PURPOSE OF THIS
COMMITTEE, THAT THIS IS NOT IN ANY SENSE AN ATTACK UPON THE FREE PRESS
OF THE UNITED STATES. 

"THE CHAIRMAN.  WHY, CERTAINLY, THAT IS TRUE. 

"SENATOR HENNINGS.  AND I THINK, TOO, THAT IT SHOULD BE CLEAR THAT
THE BEST EVIDENCE OF ANY SUBVERSION OR INFILTRATION INTO ANY NEWS
DISPENSING AGENCY OR OPINION-FORMING JOURNAL IS CERTAINLY THE PRODUCT
ITSELF. 

"THE CHAIRMAN.  THAT IS CORRECT. 

"SENATOR HENNINGS.  OF COURSE, THE COMMITTEE IS INTERESTED IN THE
EXTENT AND NATURE OF SO-CALLED COMMUNIST INFILTRATION, IF SUCH EXISTS,
INTO ANY NEWS-DISPENSING AGENCY. 

"THE CHAIRMAN.  CORRECT. 

"SENATOR HENNINGS.  BUT I WOULD LIKE TO HAVE THE POSITION OF THE
COMMITTEE, IF IT BE THE POSITION OF THE MAJORITY OF THIS COMMITTEE,
SINCE THE COMMITTEE HAS NOT MET TO DETERMINE WHETHER ONE POLICY OR
ANOTHER IS TO BE PURSUED IN THE COURSE OF THESE HEARINGS - THAT IT BE
GENERALLY KNOWN AND UNDERSTOOD THAT THIS IS NOT AN ATTACK UPON ANY ONE
NEWSPAPER, UPON ANY GROUP OF NEWSPAPERS AS SUCH, BUT AN EFFORT ON THE
PART OF THIS COMMITTEE TO SHOW SUCH PARTICIPATION AND SUCH ATTEMPT AS
MAY BE DISCLOSED ON THE PART OF THE COMMUNIST PARTY IN THE UNITED
STATES OR ELSEWHERE, INDEED, TO INFLUENCE OR TO SUBVERT THE AMERICAN
PRESS. 

"AND I DO THINK THAT AT SOME LATER TIME, PERHAPS, IT MIGHT BE
APPROPRIATE FOR EXECUTIVES OF SOME OF THE NEWSPAPERS UNDER INQUIRY,
WHOSE EMPLOYEES ARE UNDER INQUIRY, TO BE CALLED AND TO TESTIFY AND FOR
THEM TO SHOW, IF THEY CAN SHOW, THAT THE END PRODUCT, THE NEWSPAPER
ITSELF, HAS NOT BEEN INFLUENCED BY THESE EFFORTS. 

"THE CHAIRMAN.  THE CHAIR THINKS THAT IS A VERY FINE AND VERY
ACCURATE STATEMENT, ONE WITH WHICH THE CHAIR CERTAINLY AGREES, IN ITS
ENTIRETY. 

"WE ARE NOT SINGLING OUT ANY NEWSPAPER AND NOT INVESTIGATING ANY
NEWSPAPER OR ANY GROUP OF NEWSPAPERS.  WE ARE SIMPLY INVESTIGATING
COMMUNISM WHEREVER WE FIND IT,* AND I THINK THAT WHEN THIS SERIES OF
HEARINGS IS OVER THAT NO ONE CAN SAY THAT ANY NEWSPAPER OR ANY
EMPLOYEES OF ANY ONE NEWSPAPER HAS BEEN SINGLED OUT. 

*THE SUBCOMMITTEE IN ITS REPORT TO THE SENATE JUDICIARY COMMITTEE, S.
REP. NO. 131, 85TH CONG., 1ST SESS., P. 95, STATED: 

"THE COMMUNISTS IN THE UNITED STATES HAVE THEIR OWN DAILY NEWSPAPER,
THE DAILY WORKER, AND CONTROL VARIOUS WEEKLY AND MONTHLY PERIODICALS,
INCLUDING POLITICAL AFFAIRS AND MASSES AND MAINSTREAM.  BUT THOSE
PUBLICATIONS ARE SO BRAZENLY SLANTED THAT THEIR PROPAGANDA VALUE,
EXCEPT FOR CERTAIN ELEMENTS OF THE FOREIGN LANGUAGE PRESS IN THIS
COUNTRY, IS SHARPLY LIMITED (PTS.  28 AND 29). 

"IN ORDER TO OVERCOME THIS DISADVANTAGE, AND FOR OTHER REASONS,
COMMUNISTS HAVE MADE VIGOROUS AND SUSTAINED EFFORTS TO INFILTRATE THE
AMERICAN PRESS AND RADIO AND TO ENTRENCH THEIR MEMBERS IN ALL OTHER
FORMS OF MASS COMMUNICATIONS, WHERE, BY EMPHASIS OR OMISSION OF THE
WRITTEN OR SPOKEN WORD, IT MAY BE TURNED TO THE ADVANTAGE OF THE
CONSPIRACY." 

THE REPORT REFERRED TO THE RULING OF AN ARBITER IN A CASE WHERE A
PAPER HAD DISCHARGED A "REWRITE MAN" BECAUSE HE INVOKED THE FIFTH
AMENDMENT.  IT SAID THAT THE FOLLOWING QUOTATIONS FROM HIS OPINION WERE
"OF MORE THAN PASSING INTEREST:" 

"A METROPOLITAN NEWSPAPER IN AMERICA TODAY IS MORE THAN A MIRROR TO
THE HAPPENINGS OF THE DAY.  IT IS A MOULDER OF PUBLIC OPINION; CAPABLE
OF LEADING CRUSADES; CAPABLE OF INTRODUCING NEW IDEAS; CAPABLE OF
PROPAGATING TRUTH OR PROPAGANDA AS IT WILLS.  BY ITS VERY NATURE,
WHETHER IT WOULD ABDICATE OR NOT, A NEWSPAPER MAINTAINS A POSITION OF
LEADERSHIP AND RESPONSIBILITY IN THIS COLD WAR THAT IS VITAL TO OUR
NATIONAL SECURITY.  OTHER INDUSTRIES (ATOMIC ENERGY, DEFENSE, ET
CETERA) MAY BE MORE VITAL BUT THIS FACT DOES NOT IMPAIR THE VITAL ROLE
OF OUR PRESS. 

"EACH WORKER PERFORMS HIS TASK IN LIFE WITH TOOLS, AND THESE TOOLS
RUN THE GAMUT FROM AN AX TO A ZITHER.  THE REWRITE MAN HAS HIS TOOLS,
TOO.  THEY ARE WORDS.  WORDS BUT EXPRESS IDEAS AND SO IT FOLLOWS THAT
THE REWRITE MAN WORKS ALL DAY WITH IDEAS.  THIS IS A WAR OF IDEAS.  CAN
HIS POSITION THEN BE DEEMED NONSENSITIVE?  A REWRITE MAN CAN SELECT THE
FACTS HE CONSIDERS IMPORTANT AS RELAYED TO HIM BY THE REPORTER IN THE
FIELD.  HIS IS THE CHOICE OF THE TOPIC SENTENCE AND THE LEAD
PARAGRAPH.  HIS SELECTION OF WORDS SETS THE TONE OF THE ARTICLE AND
INFLUENCES, TOO, THE CHOICE OF HEADLINE.  THE CONCLUSION IS
IRRESISTIBLE THAT A REWRITE MAN OCCUPIES A SENSITVE POSITION ON A
NEWSPAPER."  ID., AT 97. 

THE COMMITTEE CONCLUDED, "COMMUNISTS HAVE INFILTRATED MASS
COMMUNICATIONS MEDIA IN THE UNITED STATES, AND EFFORTS TO INCREASE SUCH
INFILTRATION CONTINUE."  ID., AT 117. 

"SENATOR HENNINGS.  THANK YOU, MR. CHAIRMAN. 

SENATOR WATKINS.  I WOULD LIKE TO SAY I AGREE WITH SENATOR HENNINGS'
STATEMENT, MR. CHAIRMAN."  R. 72-73. 

THE NEW YORK TIMES WAS A PRIME TARGET OF THE INVESTIGATION, 30 OF THE
38 WITNESSES CALLED AT THE 1955 EXECUTIVE SESSION AND 15 OF THE 18
CALLED AT THE 1956 PUBLIC HEARINGS BEING PRESENT OR PAST EMPLOYEES OF
THAT PAPER. 

THE POWER TO INVESTIGATE IS LIMITED TO A VALID LEGISLATIVE FUNCTION. 
INQUIRY IS PRECLUDED WHERE THE MATTER INVESTIGATED IS ONE ON WHICH "NO
VALID LEGISLATION" CAN BE ENACTED.  KILBOURN V. THOMPSON, 103 U.S. 168,
195.  SINCE THE FIRST AMENDMENT PROVIDES THAT "CONGRESS SHALL MAKE NO
LAW ...  ABRIDGING THE FREEDOM  ... OF THE PRESS," THIS PRESENT
INVESTIGATION WAS PLAINLY UNCONSTITUTIONAL.  AS WE SAID IN WATKINS V.
UNITED STATES, 354 U.S. 178, 197: 

"CLEARLY, AN INVESTIGATION IS SUBJECT TO THE COMMAND THAT THE
CONGRESS SHALL MAKE NO LAW ABRIDGING FREEDOM OF SPEECH OR PRESS OR
ASSEMBLY.  WHILE IT IS TRUE THAT THERE IS NO STATUTE TO BE REVIEWED,
AND THAT AN INVESTIGATION IS NOT A LAW, NEVERTHELESS AN INVESTIGATION
IS PART OF LAWMAKING.  IT IS JUSTIFIED SOLELY AS AN ADJUNCT TO THE
LEGISLATIVE PROCESS.  THE FIRST AMENDMENT MAY BE INVOKED AGAINST
INFRINGEMENT OF THE PROTECTED FREEDOMS BY LAW OR BY LAWMAKING." 

UNDER OUR SYSTEM OF GOVERNMENT, I DO NOT SEE HOW IT IS POSSIBLE FOR
CONGRESS TO PASS A LAW SAYING WHOM A NEWSPAPER OR NEWS AGENCY OR
MAGAZINE SHALL OR SHALL NOT EMPLOY.  IF THIS POWER EXISTS, IT CAN REACH
THE RIGHTIST AS WELL AS THE LEFTIST PRESS, AS UNITED STATES V. RUMELY,
345 U.S. 41, SHOWS.  WHETHER IT IS USED AGAINST THE ONE OR THE OTHER
WILL DEPEND ON THE MOOD OF THE DAY.  WHENEVER IT IS USED TO FERRET OUT
THE IDEOLOGY OF THOSE COLLECTING NEWS OR WRITING ARTICLES OR EDITORIALS
FOR THE PRESS, IT IS USED UNCONSTITUTIONALLY.  THE THEORY OF OUR FREE
SOCIETY IS THAT GOVERNMENT MUST BE NEUTRAL WHEN IT COMES TO THE PRESS -
WHETHER IT BE RIGHTIST OR LEFTIST, ORTHODOX OR UNORTHODOX.  THE THEORY
IS THAT IN A COMMUNITY WHERE MEN'S MINDS ARE FREE, ALL SHADES OF
OPINION MUST BE IMMUNE FROM GOVERNMENTAL INQUIRY LEST WE END WITH
REGIMENTATION.  CONGRESS HAS NO MORE AUTHORITY IN THE FIELD OF THE
PRESS THAN IT DOES WHERE THE PULPIT IS INVOLVED.  SINCE THE EDITORIALS
WRITTEN AND THE NEWS PRINTED AND THE POLICIES ADVOCATED BY THE PRESS
ARE NONE OF THE GOVERNMENT'S BUSINESS, I SEE NO JUSTIFICATION FOR THE
GOVERNMENT INVESTIGATING THE CAPACITIES, LEANINGS, IDEOLOGY,
QUALIFICATIONS, PREJUDICES OR POLITICS OF THOSE WHO COLLECT OR WRITE
THE NEWS.  IT WAS CONCEDED ON ORAL ARGUMENT THAT CONGRESS WOULD HAVE NO
POWER TO ESTABLISH STANDARDS OF FITNESS FOR THOSE WHO WORK FOR THE
PRESS.  IT WAS ALSO CONCEDED THAT CONGRESS WOULD HAVE NO POWER TO
PRESCRIBE LOYALTY TESTS FOR PEOPLE WHO WORK FOR THE PRESS.  SINCE THIS
INVESTIGATION CAN HAVE NO LEGISLATIVE BASIS AS FAR AS THE PRESS IS
CONCERNED, WHAT THEN IS ITS CONSTITUTIONAL FOUNDATION? 

IT IS SAID THAT CONGRESS HAS THE POWER TO DETERMINE THE EXTENT OF
COMMUNIST INFILTRATION SO THAT IT CAN KNOW HOW MUCH TIGHTER THE
"SECURITY" LAWS SHOULD BE MADE.  THIS PROVES TOO MUCH.  IT WOULD GIVE
CONGRESS A ROVING POWER TO INQUIRE INTO FIELDS IN WHICH IT COULD NOT
LEGISLATE.  IF CONGRESS CAN INVESTIGATE THE PRESS TO FIND OUT IF
COMMUNISTS HAVE INFILTRATED IT, IT COULD ALSO INVESTIGATE THE CHURCHES
FOR THE SAME REASON.  ARE THE PULPITS BEING USED TO PROMOTE THE
COMMUNIST CAUSE?  WERE ANY OF THE CLERGY EVER MEMBERS OF THE COMMUNIST
PARTY?  HOW ABOUT THE GOVERNING BOARD?  HOW ABOUT THOSE WHO ASSIST THE
PASTOR AND PERHAPS HELP PREPARE HIS SERMONS OR DO THE RESEARCH?  WHO
COMES TO THE CONFESSION AND DISCLOSES THAT HE OR SHE ONCE WAS A
COMMUNIST? 

THERE IS A DICTUM IN UNITED STATES V. RUMELY, 345 U.S. 41, 43, THAT
THE REACH OF THE INVESTIGATIVE POWER OF CONGRESS IS MEASURED BY THE
"INFORMING FUNCTION OF CONGRESS," A PHRASE TAKEN FROM WOODROW WILSON'S
CONGRESSIONAL GOVERNMENT (1885), P. 303.  BUT THE QUOTATION FROM WILSON
WAS MUTILATED, BECAUSE THE SENTENCES WHICH FOLLOWED HIS STATEMENT THAT
"THE INFORMING FUNCTION OF CONGRESS SHOULD BE PREFERRED EVEN TO ITS
LEGISLATIVE FUNCTION" WERE OMITTED FROM THE RUMELY OPINION.  THOSE
OMITTED SENTENCES MAKE ABUNDANTLY CLEAR THAT WILSON WAS SPEAKING, NOT
OF A CONGRESSIONAL INQUIRY ROAMING AT LARGE, BUT OF ONE THAT INQUIRED
INTO AND DISCUSSED THE FUNCTIONS AND OPERATIONS OF GOVERNMENT.  WILSON
SAID: 

"THE INFORMING FUNCTION OF CONGRESS SHOULD BE PREFERRED EVEN TO ITS
LEGISLATIVE FUNCTION.  THE ARGUMENT IS NOT ONLY THAT DISCUSSED AND
INTERROGATED ADMINISTRATION IS THE ONLY PURE AND EFFICIENT
ADMINISTRATION, BUT, MORE THAN THAT, THAT THE ONLY REALLY SELF
GOVERNING PEOPLE IS THAT PEOPLE WHICH DISCUSSES AND INTERROGATES ITS
ADMINISTRATION.  THE TALK ON THE PART OF CONGRESS WHICH WE SOMETIMES
JUSTLY CONDEMN IS THE PROFITLESS SQUABBLE OF WORDS OVER FRIVOLOUS BILLS
OR SELFISH PARTY ISSUES.  IT WOULD BE HARD TO CONCEIVE OF THERE BEING
TOO MUCH TALK ABOUT THE PRACTICAL CONCERNS AND PROCESSES OF
GOVERNMENT.  SUCH TALK IT IS WHICH, WHEN EARNESTLY AND PURPOSEFULLY
CONDUCTED, CLEARS THE PUBLIC MIND AND SHAPES THE DEMANDS OF PUBLIC
OPINION."  ID., AT 303-304.    THE POWER TO INFORM IS, IN MY VIEW, NO
BROADER THAN THE POWER TO LEGISLATE. 

CONGRESS HAS NO POWER TO LEGISLATE EITHER ON "RELIGION" OR ON THE
"PRESS."  IF AN EDITOR OR A MINISTER VIOLATES THE LAW, HE CAN BE
PROSECUTED.  BUT THE INVESTIGATIVE POWER, AS I READ OUR CONSTITUTION,
IS BARRED FROM CERTAIN AREAS BY THE FIRST AMENDMENT.  IF WE TOOK THE
STEP URGED BY THE PROSECUTION, WE WOULD ALLOW CONGRESS TO ENTER THE
FORBIDDEN DOMAIN.  THE STRENGTH OF THE "PRESS" AND THE "CHURCH" IS IN
THEIR FREEDOM.  IF THEY PERVERT OR MISUSE THEIR POWER, INFORMED OPINION
WILL IN TIME RENDER THE VERDICT AGAINST THEM.  A PAPER OR PULPIT MIGHT
CONCEIVABLY BECOME A MOUTHPIECE FOR COMMUNIST IDEOLOGY.  THAT IS
TYPICAL OF THE RISKS A FREE SOCIETY RUNS.  THE ALTERNATIVE IS
GOVERNMENTAL OVERSIGHT, GOVERNMENTAL INVESTIGATION, GOVERNMENTAL
QUESTIONING, GOVERNMENTAL HARASSMENT, GOVERNMENTAL EXPOSURE FOR
EXPOSURE'S SAKE.  ONCE WE CROSSED THAT LINE, WE WOULD SACRIFICE THE
VALUES OF A FREE SOCIETY FOR ONE THAT HAS A TOTALITARIAN CAST. 

SOME THINK A CERTAIN LEEWAY IS NECESSARY OR DESIRABLE, LEAVING IT TO
THE JUDICIARY TO CURB WHAT JUDGES MAY FROM TIME TO TIME THINK ARE
EXCESSIVE PRACTICES.  THUS, A JUDGE WITH A PROFESSORIAL BACKGROUND MAY
PUT THE CLASSROOM IN A PREFERRED POSITION.  ONE WITH A BACKGROUND OF A
PROSECUTOR DEALING WITH "SUBVERSIVES" MAY BE LESS TOLERANT.  WHEN A
SUBJECTIVE STANDARD IS INTRODUCED, THE LINE BETWEEN CONSTITUTIONAL AND
UNCONSTITUTIONAL CONDUCT BECOMES VAGUE, UNCERTAIN, AND UNPREDICTABLE. 
THE RATIONALIZATION, OF COURSE, REDUCES ITSELF ULTIMATELY TO THE IDEA
THAT "THE JUDGES KNOW BEST."  MY IDEA IS AND HAS BEEN THAT THOSE WHO
PUT THE WORDS OF THE FIRST AMENDMENT IN THE FORM OF A COMMAND KNEW
BEST.  THAT IS THE POLITICAL THEORY OF GOVERNMENT WE MUST SUSTAIN UNTIL
A CONSTITUTIONAL AMENDMENT IS ADOPTED THAT PUTS THE CONGRESS ASTRIDE
THE "PRESS." 

MR. JUSTICE CLARK, DISSENTING. 

ALTHOUGH I HAVE JOINED BROTHER HARLAN IN DISSENTING ON THE GROUNDS
ABLY EXPRESSED IN HIS OPINION, THE COURT TODAY SO ABRUPTLY BREAKS WITH
THE PAST THAT I MUST VISUALLY ADD MY VOICE IN PROTEST.  THE STATUTE
UNDER WHICH THESE CASES WERE PROSECUTED, 2 U.S.C. SEC. 192, WAS
ORIGINALLY PASSED 105 YEARS AGO.  CASE AFTER CASE HAS COME HERE DURING
THAT PERIOD.  STILL THE COURT IS UNABLE TO POINT TO ONE CASE - NOT ONE
IN WHICH THERE IS THE REMOTEST SUGGESTION THAT INDICTMENTS THEREUNDER
MUST INCLUDE ANY OF THE UNDERLYING FACTS NECESSARY TO EVALUATE THE
PROPRIETY OF THE UNANSWERED QUESTIONS.  FOLLOWING THE UNIVERSAL ART AND
PRACTICE, INDICTMENTS UNDER THIS STATUTE HAVE COMMONLY PHRASED THE
ELEMENT OF PERTINENCY IN THE STATUTORY LANGUAGE, I.E., THE UNANSWERED
QUESTION WAS "PERTINENT TO THE QUESTION UNDER INQUIRY."  THIS COURT IN
SACHER V. UNITED STATES, 356 U.S. 576 (1958), HAD AN OPPORTUNITY TO PUT
A STOP TO THIS WIDESPREAD PRACTICE BUT INSTEAD REVERSED ON OTHER,
RATHER UNSUBSTANTIAL GROUNDS WITHOUT EVEN ACKNOWLEDGING THAT NUMEROUS
DEFENDANTS WERE BEING DENIED "ONE OF THE SIGNIFICANT PROTECTIONS WHICH
THE GUARANTY OF A GRAND JURY INDICTMENT WAS INTENDED TO CONFER."  IN
REQUIRING THESE INDICTMENTS TO "IDENTIFY THE SUBJECT WHICH WAS UNDER
INQUIRY AT THE TIME OF THE DEFENDANT'S ALLEGED DEFAULT OR REFUSAL TO
ANSWER," THE COURT HAS CONCOCTED A NEW AND NOVEL DOCTRINE TO UPSET
CONGRESSIONAL CONTEMPT CONVICTIONS.  A RULE HAS BEEN SOWN WHICH, AS
POINTED OUT BY BROTHER HARLAN, HAS NO SEEDS IN GENERAL INDICTMENT LAW
AND WHICH WILL REAP NO REAL BENEFITS IN CONGRESSIONAL CONTEMPT CASES. 
IF KNOWING THE SUBJECT MATTER UNDER INVESTIGATION IS ACTUALLY IMPORTANT
TO THESE RECALCITRANT WITNESSES, THEY CAN UTILIZE THE RIGHT RECOGNIZED
IN WATKINS V. UNITED STATES, 354 U.S. 178 (1957), OF DEMANDING
ENLIGHTENMENT FROM THE QUESTIONING BODY OR THE TIME-HONORED PRACTICE OF
REQUESTING A BILL OF PARTICULARS FROM THE PROSECUTOR.  LET US HOPE THAT
THE REASONING OF THE COURT TODAY DOES NOT APPLY TO INDICTMENTS UNDER
OTHER CRIMINAL STATUTES, FOR IF IT DOES AN UNCOUNTABLE NUMBER OF
INDICTMENTS WILL BE INVALIDATED.  IF, HOWEVER, THE RULE IS ONLY CAST AT
CONGRESSIONAL CONTEMPT CASES, IT IS MANIFESTLY UNJUST. 

BY FASTENING UPON INDICTMENT FORMS UNDER SEC. 192 ITS SUPERFICIAL
LUMINOSITY REQUIREMENT THE COURT CREATES ADDITIONAL HAZARDS TO THE
SUCCESSFUL PROSECUTION OF CONGRESSIONAL CONTEMPT CASES, WHICH IMPAIR
THE INFORMING PROCEDURES OF THE CONGRESS BY ENCOURAGING CONTUMACY
BEFORE ITS COMMITTEES.  IT WAS ONLY FIVE YEARS AGO IN MY DISSENTING
OPINION IN WATKINS THAT I INDICATED THE RULE IN THAT CASE MIGHT "WELL
LEAD TO TRIAL OF ALL CONTEMPT CASES BEFORE THE BAR  ...  " OF THE HOUSE
OF CONGRESS AFFECTED.  WATKINS V. UNITED STATES, SUPRA, AT P. 225.  IN
THAT SHORT PERIOD THE COURT HAS NOW UPSET 10 CONVICTIONS UNDER SEC.
192.  THIS CONTINUED FRUSTRATION OF THE CONGRESS IN THE USE OF THE
JUDICIAL PROCESS TO PUNISH THOSE WHO ARE CONTEMPTUOUS OF ITS COMMITTEES
INDICATES TO ME THAT THE TIME MAY HAVE COME FOR CONGRESS TO REVERT TO
"ITS ORIGINAL PRACTICE OF UTILIZING THE COERCIVE SANCTION OF CONTEMPT
PROCEEDINGS AT THE BAR OF THE HOUSE AFFECTED."  ID., AT 206.  PERHAPS
SOME SIMPLIFIED METHOD MAY BE FOUND TO HANDLE SUCH MATTERS WITHOUT
CONSUMING TOO MUCH OF THE TIME OF THE FULL HOUSE INVOLVED.  TRUE, A
RECALCITRANT WITNESS WOULD HAVE TO BE RELEASED AT THE DATE OF
ADJOURNMENT, BUT AT LEAST CONTUMACIOUS CONDUCT WOULD THEN RECEIVE SOME
PUNISHMENT.  THE DIGNITY OF THE LEGISLATIVE PROCESS DESERVES AT LEAST
THAT MUCH SANCTION. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

THE GROUND RULES FOR TESTING THE SUFFICIENCY OF AN INDICTMENT ARE
TWOFOLD:  (1) DOES THE INDICTMENT ADEQUATELY INFORM THE DEFENDANT OF
THE NATURE OF THE CHARGE HE WILL HAVE TO MEET; (2) IF THE DEFENDANT IS
CONVICTED, AND LATER PROSECUTED AGAIN, WILL A COURT, UNDER WHAT HAS
BEEN CHARGED, BE ABLE TO DETERMINE THE EXTENT TO WHICH THE DEFENSE OF
DOUBLE JEOPARDY IS AVAILABLE?  UNITED STATES V. DEBROW, 346 U.S. 374. 

RULE 7(C) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, EFFECTIVE IN
1946, WAS OF COURSE NOT INTENDED TO ABROGATE OR WEAKEN EITHER OF THESE
YARDSTICKS.  ITS PURPOSE SIMPLY WAS TO DO AWAY WITH THE SUBTLETIES AND
UNCERTAINTIES THAT HAD CHARACTERIZED CRIMINAL PLEADING AT COMMON LAW. 
THE RULE PROVIDES IN PERTINENT PART: 

"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." 

THE RULE WAS "DESIGNED TO ELIMINATE TECHNICALITIES" AND IS "TO BE
CONSTRUED TO SECURE SIMPLICITY IN PROCEDURE."  DEBROW, AT 376. 

AN ESSENTIAL ELEMENT OF THE OFFENSE ESTABLISHED BY 2 U.S.C. SEC. 192
(FN1) IS THAT THE QUESTIONS WHICH THE DEFENDANT REFUSED TO ANSWER WERE
"PERTINENT TO THE QUESTIONS UNDER INQUIRY" BEFORE THE INQUIRING
CONGRESSIONAL COMMITTEE.  EACH OF THE INDICTMENTS IN THESE CASES
CHARGED THIS ELEMENT OF THE OFFENSE IN THE LANGUAGE OF THE STATUTE,
FOLLOWING THE PRACTICE CONSISTENTLY EMPLOYED SINCE 1950 IN THE DISTRICT
OF COLUMBIA, WHERE MOST OF THE SEC. 192 CASES HAVE BEEN BROUGHT.  (FN2)
THE COURT NOW HOLDS, HOWEVER, THAT WITHOUT A STATEMENT OF THE ACTUAL
SUBJECT UNDER INQUIRY, THIS ALLEGATION WAS INADEQUATE TO SATISFY THE
"APPRISAL" REQUISITE OF A VALID INDICTMENT.  AT THE SAME TIME THE
ALLEGATION IS FOUND SUFFICIENT TO SATISFY THE "JEOPARDY" REQUISITE. 

THE COURT'S HOLDING IS CONTRARY TO THE UNIFORM COURSE OF DECISIONS IN
THE LOWER FEDERAL COURTS.  THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT, SITTING FIRST AS A PANEL AND LATER EN BANC, HAS
UPHELD "PERTINENCY" ALLEGATIONS WHICH, LIKE THE PRESENT INDICTMENT, DID
NOT IDENTIFY THE PARTICULAR SUBJECT BEING INVESTIGATED.  BARENBLATT V.
UNITED STATES, 100 U.S. APP. D.C. 13, 240 F.2D 875 (PANEL); SACHER V.
UNITED STATES, 102 U.S. APP. D.C. 264, 252 F.2D 828 (EN BANC).  (FN3)
THE COURT OF APPEALS FOR THE SECOND CIRCUIT IS OF THE SAME VIEW. 
UNITED STATES V. JOSEPHSON, 165 F.2D 82; (FN4) UNITED STATES V. LAMONT,
236 F.2D 312.  (FN5)  AND SO, QUITE EVIDENTLY, IS THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT.  BRADEN V. UNITED STATES, 272 F.2D 653.  (FN6)
NO COURT OF APPEALS HAS HELD OTHERWISE.  AND NOTHING IN THIS COURT'S
MORE RECENT CASES COULD POSSIBLY BE TAKEN AS FORESHADOWING THE DECISION
MADE TODAY.  (FN7) 

THE REASONS GIVEN BY THE COURT FOR ITS SUDDEN HOLDING, WHICH UNLESS
CONFINED TO CONTEMPT OF CONGRESS CASES BIDS FAIR TO THROW THE FEDERAL
COURTS BACK TO AN ERA OF CRIMINAL PLEADING FROM WHICH IT WAS THOUGHT
THEY HAD FINALLY EMERGED, ARE NOVEL AND UNCONVINCING. 

                                     I.  IT IS FIRST ARGUED THAT AN
ALLEGATION OF "PERTINENCY" IN THE STATUTORY TERMS WILL NOT DO, BECAUSE
THAT ELEMENT IS AT "THE VERY CORE OF CRIMINALITY" UNDER SEC. 192.  THIS
IS SAID TO FOLLOW FROM WHAT "OUR CASES HAVE UNIFORMLY HELD."  ANTE, P.
764.  I DO NOT SO UNDERSTAND THE CASES ON WHICH THE COURT RELIES.  IT
WILL SUFFICE TO EXAMINE THE THREE CASES FROM WHICH QUOTATIONS HAVE BEEN
CULLED.  ANTE, PP. 765-766. 

UNITED STATES V. CRUIKSHANK, 92 U.S. 542, INVOLVED AN INDICTMENT
UNDER THE ENFORCEMENT ACT OF 1870 (16 STAT. 140) MAKING IT A FELONY TO
CONSPIRE TO PREVENT ANY PERSON FROM EXERCISING AND ENJOYING "ANY RIGHT
OR PRIVILEGE GRANTED OR SECURED TO HIM BY THE CONSTITUTION OR LAWS OF
THE UNITED STATES."   MOST OF THE COUNTS WERE DISMISSED ON THE GROUND
THAT THEY STATED NO FEDERAL OFFENSE WHATEVER.  THE REMAINDER WERE HELD
INADEQUATE FROM THE STANDPOINT OF "APPRISAL," IN THAT THEY SIMPLY
ALLEGED A CONSPIRACY TO PREVENT CERTAIN CITIZENS FROM ENJOYING RIGHTS
"GRANTED AND SECURED TO THEM BY THE CONSTITUTION AND LAWS OF THE UNITED
STATES," SUCH RIGHTS NOT BEING OTHERWISE DESCRIBED OR IDENTIFIED. 
SMALL WONDER THAT THESE OPAQUE ALLEGATIONS DREW FROM THE COURT THE
COMMENT THAT THE INDICTMENT "'MUST DESCEND TO PARTICULARS.'"  ID., AT
558.  INDEED, THE COURT OBSERVED:  "ACCORDING TO THE VIEW WE TAKE OF
THESE COUNTS, THE QUESTION IS NOT WHETHER IT IS ENOUGH, IN GENERAL, TO
DESCRIBE A STATUTORY OFFENCE IN THE LANGUAGE OF THE STATUTE, BUT
WHETHER THE OFFENCE HAS HERE BEEN DESCRIBED AT ALL."  ID., AT 557. 

UNITED STATES V. SIMMONS, 96 U.S. 360, WAS CONCERNED WITH AN
INDICTMENT INVOLVING ILLEGAL DISTILLING.  REVISED STATUTES SEC. 3266
MADE IT AN OFFENSE TO DISTILL SPIRITS ON PREMISES WHERE VINEGAR "IS"
MANUFACTURED.  ONE COUNT OF THE INDICTMENT CHARGED THE DEFENDANT WITH
CAUSING EQUIPMENT ON PREMISES WHERE VINEGAR "WAS" MANUFACTURED TO BE
USED FOR DISTILLING.  THIS COUNT WAS DISMISSED FOR ITS FAILURE (1) TO
IDENTIFY THE PERSON WHO HAD SO USED THE EQUIPMENT OR TO ALLEGE THAT HIS
IDENTITY WAS UNKNOWN TO THE GRAND JURORS; AND (2) TO ALLEGE THAT THE
DISTILLING AND MANUFACTURE OF VINEGAR WERE COINCIDENTAL, AS REQUIRED BY
THE STATUTE.  (FN8)  WHAT IS MORE SIGNIFICANT FROM THE STANDPOINT OF
THE PRESENT CASES IS THAT IN SUSTAINING ANOTHER COUNT OF THE INDICTMENT
CHARGING THE DEFENDANT WITH ENGAGING IN THE BUSINESS OF DISTILLING
"WITH THE INTENT TO DEFRAUD THE UNITED STATES OF THE TAX" ON THE
SPIRITS (R.S. SEC. 3281), THE COURT HELD THAT IT WAS NOT NECESSARY TO
ALLEGE "THE PARTICULAR MEANS BY WHICH THE UNITED STATES WAS TO BE
DEFRAUDED OF THE TAX."  ID., AT 364. 

UNITED STATES V. CARLL, 105 U.S. 611, HELD NO MORE THAN THAT AN
INDICTMENT CHARGING FORGERY WAS INSUFFICIENT FOR FAILURE TO ALLEGE
SCIENTER, WHICH, THOUGH NOT EXPRESSLY REQUIRED BY THE STATUTE, THE
COURT FOUND TO BE A NECESSARY ELEMENT OF THE CRIME.  HENCE A CHARGE IN
THE STATUTORY LANGUAGE WOULD NOT SUFFICE.  SECTION 192 OF COURSE
CONTAINS NO SUCH GAP IN ITS PROVISIONS.  WHAT THE COURT NOW REQUIRES OF
THESE INDICTMENTS UNDER SEC.  192 INVOLVES NOT THE SUPPLYING OF A
MISSING ELEMENT OF THE CRIME, BUT THE ADDITION OF THE PARTICULARS OF AN
ELEMENT ALREADY CLEARLY ALLEGED. 

TO ME IT SEEMS QUITE CLEAR THAT EVEN UNDER THESE CASES, DECIDED LONG
BEFORE RULE 7(C) CAME INTO BEING, THE "PERTINENCY" ALLEGATIONS OF THE
PRESENT INDICTMENTS WOULD HAVE BEEN DEEMED SUFFICIENT.  OTHER EARLY
CASES INDICATE THE SAME THING.  SEE, E.G., UNITED STATES V. MILLS, 7
PET. 138, 142; EVANS V. UNITED STATES, 153 U.S. 584, 587; (FN9) MARKHAM
V. UNITED STATES, 160 U.S. 319, 325; (FN10) BARTELL V. UNITED STATES,
227 U.S. 427, 433-434.  (FN11)  I THINK THERE CAN BE NO DOUBT ABOUT THE
MATTER AFTER RULE 7(C). 

IN UNITED STATES V. DEBROW, SUPRA, THE COURT IN REVERSING THE
DISMISSAL OF PERJURY INDICTMENTS WHICH HAD GONE ON THE GROUND THAT THEY
HAD NOT ALLEGED THE NAME OR AUTHORITY OF THE PERSONS ADMINISTERING THE
OATH, SAID (346 U.S., AT 376-378): 

"THE FEDERAL RULES OF CRIMINAL PROCEDURE WERE DESIGNED TO ELIMINATE
TECHNICALITIES IN CRIMINAL PLEADING AND ARE TO BE CONSTRUED TO SECURE
SIMPLICITY IN PROCEDURE. 

     *      *         *         *         * 

"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."    IT IS LIKEWISE "INCONCEIVABLE" TO ME
HOW THE INDICTMENTS IN THE PRESENT CASES CAN BE DEEMED INSUFFICIENT TO
ADVISE THESE PETITIONERS OF THE NATURE OF THE CHARGE THEY WOULD HAVE TO
MEET.  THE INDICTMENTS GAVE THEM THE NAME OF THE COMMITTEE BEFORE WHICH
THEY HAD APPEARED; THE PLACE AND THE DATES OF THEIR APPEARANCES; THE
REFERENCES TO THE ENABLING LEGISLATION UNDER WHICH THE COMMITTEE ACTED;
AND THE QUESTIONS WHICH THE PETITIONERS REFUSED TO ANSWER.  THE SUBJECT
MATTER OF THE INVESTIGATION HAD BEEN STATED TO THE PETITIONERS AT THE
TIME OF THEIR APPEARANCES BEFORE THE COMMITTEES.  AND THE COMMITTEE
TRANSCRIPTS OF THE HEARINGS WERE PRESUMABLY IN THEIR POSSESSION AND, IF
NOT, WERE OF COURSE AVAILABLE TO THEM. 

GRANTING ALL THAT THE COURT SAYS ABOUT THE CRUCIAL CHARACTER OF
PERTINENCY AS AN ELEMENT OF THIS OFFENSE, IT IS SURELY NOT MORE SO THAN
THE ELEMENT OF PREMEDITATION IN THE CRIME OF FIRST DEGREE MURDER.  IF
FROM THE STANDPOINT OF "APPRISAL" IT IS NECESSARY TO PARTICULARIZE
"PERTINENCY" IN A SEC. 192 INDICTMENT, IT SHOULD FOLLOW, A FORTIORI,
THAT, CONTRARY TO WHAT IS PRESCRIBED IN FORMS 1 AND 2 OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE, A FIRST DEGREE MURDER INDICTMENT SHOULD
PARTICULARIZE "PREMEDITATION." 

               II. 

THE COURT SAYS THAT ITS HOLDING IS NEEDED TO PREVENT THE GOVERNMENT
FROM SWITCHING ON APPEAL, TO THE PREJUDICE OF THE DEFENDANTS, TO A
DIFFERENT THEORY OF PERTINENCY FROM THAT ON WHICH THE CONVICTIONS MAY
HAVE RESTED.  ANTE, PP. 766-768.  THERE ARE SEVERAL GOOD ANSWERS TO
THIS. 

TO THE EXTENT THAT THIS FEAR RELATES TO THE SUBJECT UNDER
INVESTIGATION, THE GOVERNMENT CANNOT OF COURSE TRAVEL OUTSIDE THE
CONFINES OF THE TRIAL RECORD, OF WHICH THE DEFENDANT HAS FULL
KNOWLEDGE.  IF WHAT IS MEANT IS THAT THE GOVERNMENT MAY NOT MODIFY ON
APPEAL ITS "TRIAL" VIEW OF THE "CONNECTIVE REASONING" (SUPRA, P. 784,
NOTE 6) RELIED ON TO ESTABLISH THE GERMANENESS OF THE QUESTIONS ASKED
TO THE SUBJECT MATTER OF THE INQUIRY, SURELY IT WOULD BE FREE TO DO SO,
THIS ASPECT OF PERTINENCY BEING SIMPLY A MATTER OF LAW, SINCLAIR V.
UNITED STATES, 279 U.S. 263, 299.  MOREOVER THE COURT DOES NOT FIND
THESE INDICTMENTS DEFICIENT BECAUSE THEY FAILED TO ALLEGE THE
"CONNECTIVE REASONING." 

BEYOND THESE CONSIDERATIONS, A DEFENDANT HAS AMPLE MEANS FOR
PROTECTING HIMSELF IN THIS REGARD.  BY OBJECTING AT THE COMMITTEE
HEARING TO THE PERTINENCY OF ANY QUESTION ASKED HIM HE MAY "FREEZE"
THIS ISSUE, SINCE THE GOVERNMENT'S CASE ON THIS SCORE MUST THEN STAND
OR FALL ON THE PERTINENCY EXPLANATION GIVEN BY THE COMMITTEE IN
RESPONSE TO SUCH AN OBJECTION.  DEUTCH V. UNITED STATES, 367 U.S. 456,
472-473 (DISSENTING OPINION); CF. WATKINS V. UNITED STATES, SUPRA, AT
214-215; BARENBLATT V. UNITED STATES, 360 U.S. 109, 123-125.  IF HE HAS
FAILED TO MAKE A PERTINENCY OBJECTION AT THE COMMITTEE HEARING, THEREBY
LEAVING THE ISSUE "AT LARGE" FOR THE TRIAL (DEUTCH, IBID.), HE MAY
STILL SEEK A PARTICULARIZATION THROUGH A BILL OF PARTICULARS.  CF.
UNITED STATES V. KAMIN, 136 F. SUPP. 791, 795 N. 4. 

IT SHOULD BE NOTED THAT NO PERTINENCY OBJECTION WAS MADE BY ANY OF
THESE PETITIONERS AT THE COMMITTEE HEARINGS.  FURTHER, NO MOTIONS FOR A
BILL OF PARTICULARS WERE MADE IN NO. 12, PRICE, TO WHICH THE COURT
ESPECIALLY ADDRESSES ITSELF (ANTE, PP. 766-768), OR IN NO. 8, RUSSELL,
NO. 10, WHITMAN, AND NO. 11, LIVERIGHT.  IN NO. 9, SHELTON, AND NO.
128, GOJACK, SUCH MOTIONS WERE MADE.  HOWEVER, NO APPEAL WAS TAKEN FROM
THE DENIAL OF THE MOTION IN GOJACK, AND IN SHELTON THE SUFFICIENCY OF
THE PARTICULARS FURNISHED BY THE GOVERNMENT WAS NOT QUESTIONED EITHER
BY A MOTION FOR A FURTHER BILL OR ON APPEAL. 

                                        III. 

REFERRING TO CERTAIN LANGUAGE IN THE CRUIKSHANK CASE, SUPRA, THE
COURT SUGGESTS THAT THE PRESENT HOLDING IS SUPPORTED BY A FURTHER
"IMPORTANT COROLLARY PURPOSE" WHICH AN INDICTMENT IS INTENDED TO SERVE:
TO MAKE "IT POSSIBLE FOR COURTS CALLED UPON TO PASS ON THE VALIDITY OF
CONVICTIONS UNDER THE STATUTE TO BRING AN ENLIGHTENED JUDGMENT TO THAT
TASK."  ANTE, PP. 768, 769. 

BUT WHETHER OR NOT THE GOVERNMENT HAS ESTABLISHED ITS CASE ON
"PERTINENCY" IS SOMETHING THAT MUST BE DETERMINED ON THE RECORD MADE AT
THE TRIAL, NOT UPON THE ALLEGATIONS OF THE INDICTMENT.  THERE IS NO
SUCH THING AS A MOTION FOR SUMMARY JUDGMENT IN A CRIMINAL CASE.  WHILE
APPELLATE COURTS MIGHT BE SPARED SOME OF THE TEDIUM OF GOING THROUGH
THESE SEC. 192 RECORDS WERE THE ALLEGATIONS OF INDICTMENTS TO SPELL OUT
THE "PERTINENCY" FACTS, THE COURT ELSEWHERE IN ITS OPINION RECOGNIZES
THAT THE ISSUE AT HAND CAN HARDLY BE JUDGED IN TERMS OF WHETHER FULLER
INDICTMENTS "WOULD SIMPLIFY THE COURTS' TASK."  ANTE, P. 760. 

THE BROAD LANGUAGE IN CRUIKSHANK ON WHICH THE COURT RELIES CANNOT
PROPERLY BE TAKEN AS MEANING MORE THAN THAT AN INDICTMENT MUST SET
FORTH ENOUGH TO ENABLE A COURT TO DETERMINE WHETHER A CRIMINAL OFFENSE
OVER WHICH THE COURT HAS JURISDICTION HAS BEEN ALLEGED.  CF.
MCCLINTOCK, INDICTMENT BY A GRAND JURY, 26 MINN. L. REV. 153, 159-160
(1942); ORFIELD, CRIMINAL PROCEDURE FROM ARREST TO APPEAL, 222-226, 227
N. 107.  (FN12)  CERTAINLY THE ALLEGATIONS OF THESE INDICTMENTS MEET
SUCH REQUIREMENTS. 

                                  IV. 

THE FINAL POINT MADE BY THE COURT IS PERHAPS THE MOST NOVEL OF ALL. 
IT IS SAID THAT A STATEMENT OF THE SUBJECT UNDER INQUIRY IS NECESSARY
IN THE INDICTMENT IN ORDER TO FEND AGAINST THE POSSIBILITY THAT A
DEFENDANT MAY BE CONVICTED ON A THEORY OF PERTINENCY BASED UPON A
SUBJECT UNDER INVESTIGATION DIFFERENT FROM THAT WHICH MAY HAVE BEEN
FOUND BY THE GRAND JURY.  AN ARGUMENT SIMILAR TO THIS WAS REJECTED BY
THIS COURT MANY YEARS AGO IN ROSEN V. UNITED STATES, 161 U.S. 29, 34,
WHERE AN INDICTMENT CHARGING THE DEFENDANT WITH MAILING OBSCENE MATTER,
ONLY GENERALLY DESCRIBED, WAS UPHELD OVER STRONG DISSENT (ID., AT 45
51) ASSERTING THAT THE ACCUSED WAS ENTITLED TO KNOW THE PARTICULAR
PARTS OF THE MATERIAL WHICH THE GRAND JURY HAD DEEMED OBSCENE.  (FN13) 

THIS PROPOSITION IS ALSO CERTAINLY UNSOUND ON PRINCIPLE.  IN THE LAST
ANALYSIS IT WOULD MEAN THAT A PROSECUTOR COULD NOT SAFELY INTRODUCE OR
ADVOCATE AT A TRIAL EVIDENCE OR THEORIES, HOWEVER RELEVANT TO THE CRIME
CHARGED IN THE INDICTMENT, WHICH HE HAD NOT PRESENTED TO THE GRAND
JURY.  SUCH CASES AS EX PARTE BAIN, 121 U.S. 1, UNITED STATES V.
NORRIS, 281 U.S. 619, AND STIRONE V. UNITED STATES, 361 U.S. 212, LEND
NO SUPPORT TO THE COURT'S THESIS.  THEY HELD ONLY THAT, CONSISTENTLY
WITH THE FIFTH AMENDMENT, A TRIAL JUDGE COULD NOT AMEND THE INDICTMENT
ITSELF, EITHER BY STRIKING OR ADDING MATERIAL LANGUAGE, OR, AMOUNTING
TO THE LATTER, BY PERMITTING A CONVICTION ON EVIDENCE OR THEORIES NOT
FAIRLY EMBRACED IN THE CHARGES MADE IN THE INDICTMENT.  TO ALLOW THIS
WOULD IN EFFECT PERMIT A DEFENDANT TO BE PUT TO TRIAL UPON AN
INDICTMENT FOUND NOT BY A GRAND JURY BUT BY A JUDGE.  (FN14) 

IF THE COURT'S REASONING IN THIS PART OF ITS OPINION IS SOUND, I CAN
SEE NO ESCAPE FROM THE CONCLUSION THAT A DEFENDANT CONVICTED ON A
LESSER INCLUDED OFFENSE, NOT ALLEGED BY THE GRAND JURY IN AN INDICTMENT
FOR THE GREATER OFFENSE, WOULD HAVE A GOOD PLEA IN ARREST OF JUDGMENT. 
(FED. RULES CRIM. PROC., 34.) 

IN CONCLUSION, I REALIZE THAT ONE IN DISSENT IS SOMETIMES PRONE TO
OVERDRAW THE IMPACT OF A DECISION WITH WHICH HE DOES NOT AGREE.  YET I
AM UNABLE TO RID MYSELF OF THE VIEW THAT THE REVERSAL OF THESE
CONVICTIONS ON SUCH INSUBSTANTIAL GROUNDS WILL SERVE TO ENCOURAGE
RECALCITRANCE TO LEGITIMATE CONGRESSIONAL INQUIRY, STEMMING FROM THE
BELIEF THAT A REFUSAL TO ANSWER MAY SOMEHOW BE REQUITED IN THIS COURT. 
AND IT IS NOT APPARENT HOW THE SEEDS WHICH THIS DECISION PLANTS IN
OTHER FIELDS OF CRIMINAL PLEADING CAN WELL BE PREVENTED FROM
SPROUTING.  WHAT IS DONE TODAY CALLS TO MIND THE TRENCHANT OBSERVATION
MADE BY MR. JUSTICE HOLMES MANY YEARS AGO IN PARAISO V. UNITED STATES,
207 U.S. 368, 372: 

"THE BILL OF RIGHTS FOR THE PHILIPPINES GIVING THE ACCUSED THE RIGHT
TO DEMAND THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM DOES NOT
FASTEN FOREVER UPON THOSE ISLANDS THE INABILITY OF THE SEVENTEENTH
CENTURY COMMON LAW TO UNDERSTAND OR ACCEPT A PLEADING THAT DID NOT
EXCLUDE EVERY MISINTERPRETATION CAPABLE OF OCCURRING TO INTELLIGENCE
FIRED WITH A DESIRE TO PERVERT." 

NO MORE SO DOES THE BILL OF RIGHTS OF THE UNITED STATES CONSTITUTION
"FASTEN" ON THIS COUNTRY THESE PRIMITIVE NOTIONS OF THE COMMON LAW. 

ON THE MERITS THESE CONVICTIONS ARE OF COURSE SQUARELY RULED AGAINST
THE PETITIONERS BY PRINCIPLES DISCUSSED IN OUR RECENT DECISIONS IN THE
BARENBLATT, WILKINSON, AND BRADEN (FN15) CASES, AS WAS ALL BUT
ACKNOWLEDGED AT THE BAR. 

I WOULD AFFIRM. 

FN1  "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 JOINT
COMMITTEE ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO
HOUSES OF CONGRESS, 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 JAIL FOR NOT LESS THAN
ONE MONTH NOR MORE THAN TWELVE MONTHS." 

FN2  (THE FOLLOWING ABBREVIATIONS HAVE BEEN USED TO INDICATE WHERE
THE INDICTMENTS MAY BE FOUND: TR, THE TRANSCRIPT OF THE RECORD IN THIS
COURT; JA, THE JOINT APPENDIX IN THE COURT OF APPEALS; CR. NO. - , THE
DOCKET NUMBER IN THE DISTRICT COURT.)  SEE GRUMMAN V. UNITED STATES,
368 U.S. 925 (TR, P. 2); SILBER V. UNITED STATES, 368 U.S. 925 (TR, P.
2); HUTCHESON V. UNITED STATES, 369 U.S. 599 (TR, P. 4); DEUTCH V.
UNITED STATES, 367 U.S. 456 (TR, P. 7); BARENBLATT V. UNITED STATES,
360 U.S. 109 (TR, P. 1); FLAXER V. UNITED STATES, 358 U.S. 147 (TR, P.
2); SACHER V. UNITED STATES, 356 U.S. 576 (JA, P. 2); WATKINS V. UNITED
STATES, 354 U.S. 178 (TR, P. 2); BART V. UNITED STATES, 349 U.S. 219
(TR, P. 108); EMSPAK V. UNITED STATES, 349 U.S. 190 (TR, P. 4); QUINN
V. UNITED STATES, 349 U.S. 155 (TR, P. 3); UNITED STATES V. RUMELY, 345
U.S. 41 (TR, PP. 2-4); KNOWLES V. UNITED STATES, 108 U.S. APP. D.C.
148, 280 F.2D 696 (CR. NO. 1211-56); WATSON V. UNITED STATES, 108 U.S.
APP. D.C. 141, 280 F.2D 689 (CR. NO. 1151-54); MILLER V. UNITED STATES,
104 U.S. APP. D.C.  30, 259 F.2D 187 (CR. NO. 164-57); LA POMA V.
UNITED STATES, 103 U.S. APP. D.C. 151, 255 F.2D 903 (CR. NO. 290-57);
BREWSTER V. UNITED STATES, 103 U.S. APP. D.C. 147, 255 F.2D 899 (CR.
NO. 289-57); SINGER V. UNITED STATES, 100 U.S. APP. D.C. 260, 244 F.2D
349 (CR. NO. 1150-54); O'CONNOR V. UNITED STATES, 99 U.S. APP. D.C.
373, 240 F.2D 404 (CR. NO. 1650-53); KEENEY V. UNITED STATES, 94 U.S.
APP. D.C. 366, 218 F.2D 843 (CR. NO. 870-52); BOWERS V. UNITED STATES,
92 U.S. APP. D.C. 79, 202 F.2D 447 (CR. NO. 1252-51); KAMP V. UNITED
STATES, 84 U.S. APP. D.C. 187, 176 F.2D 618 (CR. NO. 1788-50); UNITED
STATES V. PECK, 149 F. SUPP.  238 (CR. NO. 1214-56); UNITED STATES V.
HOAG, 142 F. SUPP. 667 (CR. NO. 574-55); UNITED STATES V. FISCHETTI,
103 F. SUPP. 796 (CR. NO. 1254-51); UNITED STATES V. NELSON, 103 F.
SUPP. 215 (CR. NO. 1796-50); UNITED STATES V. JAFFE, 98 F. SUPP. 191
(CR. NO. 1786-50); UNITED STATES V. RALEY, 96 F. SUPP. 495 (CR. NO.
1748-50); UNITED STATES V. FITZPATRICK, 96 F. SUPP. 491 (CR. NO. 1743
50). 

FOR A SHORT PERIOD AFTER RULE 7(C), FED. RULES CRIM. PROC., CAME INTO
EFFECT IN 1946, VESTIGES OF COMMON-LAW PLEADING CONTINUED TO BE FOUND
IN SOME, BUT NOT ALL, SEC. 192 INDICTMENTS.  COMPARE UNITED STATES V.
FLEISCHMAN, 339 U.S. 349 (TR, PP. 2-3), WITH UNITED STATES V. BRYAN,
339 U.S. 323 (TR, P. 2A).  BY 1950, HOWEVER, ALL SUCH INDICTMENTS HAD
COME TO BE IN STATUTORY FORM. 

FN3  FOUR JUDGES DISSENTED ON OTHER GROUNDS. 

FN4  THE RECORD ON APPEAL SHOWS THAT ONE OF THE GROUNDS OF ATTACK WAS
THE INDICTMENT'S FAILURE TO ALLEGE "THE NATURE OF ANY MATTER UNDER
INQUIRY BEFORE SAID COMMITTEE."  RECORD ON APPEAL IN THE COURT OF
APPEALS FOR THE SECOND CIRCUIT, NO. 91, DOC. 20790, P. 7. 

FN5  THIS CASE EVINCES NO PURPOSE TO DEPART FROM JOSEPHSON.  THE
DISTRICT COURT, ALTHOUGH DISMISSING THE INDICTMENT ON OTHER GROUNDS,
QUITE EVIDENTLY FOUND THE STATUTORY "PERTINENCY" ALLEGATION
SUFFICIENT.  18 F.R.D., AT 30, 37.  AND IN AFFIRMING, THE COURT OF
APPEALS, CITING THE JOSEPHSON CASE AMONG OTHERS, STATED THAT "THE
RESULT MIGHT WELL BE DIFFERENT" HAD THE AUTHORITY OF THE INVESTIGATING
COMMITTEE APPEARED IN THE INDICTMENT.  236 F.2D, AT 316 (NOTE 6).  (THE
COMMITTEE IN LAMONT WAS A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
GOVERNMENT OPERATIONS WHOSE ENABLING LEGISLATION THE COURT FOUND DID
NOT AUTHORIZE INVESTIGATION OF "SUBVERSIVE ACTIVITIES.")  AS REGARDS
THE ISSUE DECIDED IN THE PRESENT CASES, THE FOLLOWING OBSERVATIONS BY
CHIEF JUDGE CLARK, WHO SPEAKS WITH SPECIAL AUTHORITY IN PROCEDURAL
MATTERS, ARE SIGNIFICANT (ID., AT 317): 

"PLEADING, EITHER CIVIL OR CRIMINAL, SHOULD BE A PRACTICAL THING. 
ITS PURPOSE IS TO CONVEY INFORMATION SUCCINCTLY AND CONCISELY.  IN
OLDER DAYS THE TENDENCY WAS TO DEFEAT THIS PURPOSE BY OVERELABORATION
AND FORMALISM.  NOW WE SHOULD AVOID THE OPPOSITE TREND, BUT OF LIKE
CONSEQUENCE, THAT OF A FORMALISM OF GENERALITY.  THERE SEEMS TO BE SOME
TENDENCY TO CONFUSE GENERAL PLEADINGS WITH ENTIRE ABSENCE OF STATEMENT
OF CLAIM OR CHARGE.  (FOOTNOTE OMITTED.)  BUT THIS IS A MISTAKE, FOR
GENERAL PLEADINGS, FAR FROM OMITTING A CLAIM OR CHARGE, DO CONVEY
INFORMATION TO THE INTELLIGENT AND SOPHISTICATED CIRCLE FOR WHICH THEY
ARE DESIGNED.  THUS THE CHARGE THAT AT A CERTAIN TIME AND PLACE 'JOHN
DOE WITH PREMEDITATION SHOT AND MURDERED JOHN ROE,' F.R.CR.P., FORM 2,
EVEN THOUGH OF COMPARATIVELY FEW WORDS, HAS MADE CLEAR THE OFFENSE IT
IS BRINGING BEFORE THE COURT.  (FOOTNOTE OMITTED.)  THE PRESENT
INDICTMENTS, HOWEVER, DO NOT SHOW THE BASIS UPON WHICH EVENTUAL
CONVICTION CAN BE HAD; RATHER, READ IN THE LIGHT OF THE BACKGROUND OF
FACTS AND CONGRESSIONAL ACTION, THEY SHOW THAT CONVICTION CANNOT BE
HAD."    FN6  THAT CASE WAS CONCERNED WITH THE "CONNECTIVE REASONING"
ASPECT OF "PERTINENCY," WATKINS V. UNITED STATES, 354 U.S. 178, 214
215, RATHER THAN THE "SUBJECT UNDER INQUIRY" ASPECT; BUT IT IS NOT
PERCEIVED HOW THIS CAN BE THOUGHT TO MAKE A DIFFERENCE IN PRINCIPLE. 

FN7  THIS IS NOT THE FIRST OPPORTUNITY THE COURT HAS HAD TO CONSIDER
THE MATTER.  ANTE, P. 754, NOTE 7. 

FN8  THE COURT STATED (ID., AT 362): 

"WHERE THE OFFENCE IS PURELY STATUTORY  ...  IT IS, 'AS A GENERAL
RULE, SUFFICIENT IN THE INDICTMENT TO CHARGE THE DEFENDANT WITH ACTS
COMING FULLY WITHIN THE STATUTORY DESCRIPTION, IN THE SUBSTANTIAL WORDS
OF THE STATUTE, WITHOUT ANY FURTHER EXPANSION OF THE MATTER.'  1
BISHOP, CRIM. PROC., SECT.  611, AND AUTHORITIES THERE CITED.  BUT TO
THIS GENERAL RULE THERE IS THE QUALIFICATION, FUNDAMENTAL IN THE LAW OF
CRIMINAL PROCEDURE, THAT THE ACCUSED MUST BE APPRISED BY THE
INDICTMENT, WITH REASONABLE CERTAINTY, OF THE NATURE OF THE ACCUSATION
AGAINST HIM  ...  .  AN INDICTMENT NOT SO FRAMED IS DEFECTIVE, ALTHOUGH
IT MAY FOLLOW THE LANGUAGE OF THE STATUTE." 

FN9  THE MILLS AND EVANS CASES SUGGEST THAT A MORE LENIENT RULE OF
PLEADING APPLIES IN MISDEMEANOR THAN IN FELONY CASES.  ALTHOUGH THAT
DISTINCTION SEEMS TO HAVE DISAPPEARED IN THE LATER CASES, IT MAY BE
NOTED THAT SEC. 192 IN TERMS MAKES THIS OFFENSE A MISDEMEANOR.  NOTE 1,
SUPRA. 

FN10  IN THAT CASE THE COURT SPOKE, DOUBTLESS BY WAY OF DICTUM,
CONCERNING THE METHOD OF PLEADING "MATERIALITY" IN A PERJURY INDICTMENT
(AN ELEMENT AKIN TO "PERTINENCY" UNDER SEC. 192, SINCLAIR V. UNITED
STATES, 279 U.S. 263, 298): 

"IT WAS NOT NECESSARY THAT THE INDICTMENT SHOULD SET FORTH ALL THE
DETAILS OR FACTS INVOLVED IN THE ISSUE AS TO MATERIALITY OF THE FALSE
STATEMENT  ...  .  IN 2 CHITTEY'S CRIMINAL LAW, 307, THE AUTHOR SAYS:
'IT IS UNDOUBTEDLY NECESSARY THAT IT SHOULD APPEAR ON THE FACE OF THE
INDICTMENT THAT THE FALSE ALLEGATIONS WERE MATERIAL TO THE MATTER IN
ISSUE.  BUT IT IS NOT REQUISITE TO SET FORTH ALL THE CIRCUMSTANCES
WHICH RENDER THEM MATERIAL; THE SIMPLE AVERMENT THAT THEY WERE SO, WILL
SUFFICE.'  IN KING V. DOWLIN  ...  LORD KENYON SAID THAT IT HAD ALWAYS
BEEN ADJUDGED TO BE SUFFICIENT IN AN INDICTMENT FOR PERJURY, TO ALLEGE
GENERALLY THAT THE PARTICULAR QUESTION BECAME A MATERIAL QUESTION  ...
."  160 U.S., AT 325. 

FN11  THERE, UNDER AN EXCEPTION, PREVAILING IN "OBSCENITY" CASES, TO
THE THEN GENERAL RULE THAT IN "DOCUMENTARY" CRIMES THE CONTENTS OF THE
DOCUMENT MUST BE SET FORTH IN THE INDICTMENT, THE COURT IN SUSTAINING
AN INDICTMENT CHARGING THE UNLAWFUL MAILING OF AN "INDECENT" LETTER,
ONLY GENERALLY DESCRIBED, SAID (ID., AT 433-434): 

"THE PRESENT INDICTMENT SPECIFICALLY CHARGED THAT THE ACCUSED HAD
KNOWINGLY VIOLATED THE LAWS OF THE UNITED STATES BY DEPOSITING ON A DAY
NAMED, IN THE POST-OFFICE SPECIFICALLY NAMED, A LETTER OF SUCH INDECENT
CHARACTER AS TO RENDER IT UNFIT TO BE SET FORTH IN DETAIL, ENCLOSED IN
AN ENVELOPE BEARING A DEFINITE ADDRESS.  IN THE ABSENCE OF A DEMAND FOR
A BILL OF PARTICULARS WE THINK THIS DESCRIPTION SUFFICIENTLY ADVISED
THE ACCUSED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM. 
THIS FACT IS MADE MORE EVIDENT WHEN IT IS FOUND THAT THIS RECORD SHOWS
NO SURPRISE TO THE ACCUSED IN THE PRODUCTION OF THE LETTER AT THE TRIAL
...  ." 

THE COURT SUGGESTS THAT BARTELL AND ROSEN V. UNITED STATES (INFRA, P.
792) ARE INAPPOSITE BECAUSE OF THE SPECIAL RULE OF PLEADING APPLICABLE
IN "OBSCENITY" CASES.  ANTE, P. 765.  HOWEVER, CONSIDERING THAT THE
"APPRISAL" REQUISITE OF AN INDICTMENT ARISES FROM CONSTITUTIONAL
REQUIREMENTS, THIS FACTOR FAR FROM LESSENING THE WEIGHT OF THESE TWO
CASES ADDS TO THEIR AUTHORITY. 

FN12  THE OTHER CASES AND COMMENTARIES REFERRED TO BY THE COURT IN
NOTE 15, ANTE, PP. 768-769, INDICATE NOTHING DIFFERENT. 

FN13  IT SEEMS CLEAR THAT THE COURT PROCEEDED ON THE PREMISE THAT THE
"ISOLATED EXCERPT" RULE OF REGINA V. HICKLIN, (1868) L.R. 3 Q.B. 360,
RECENTLY REJECTED IN ROTH V. UNITED STATES, 354 U.S. 476, 488-489, IN
FAVOR OF THE "WHOLE BOOK" RULE, OBTAINED, FOR THE COURT RELIED ON
UNITED STATES V. BENNETT, 24 FED. CAS. 1093 (16 BLATCHFORD 338), WHERE
THE "EXCERPT" TEST WAS APPLIED. 

FN14  WHILE THE "CONNECTIVE REASONING" ASPECT OF "PERTINENCY" IS
AGAIN EVIDENTLY NOT INVOLVED IN THE COURT'S REASONING, IT IS
APPROPRIATE TO NOTE THAT IT IS SCARCELY REALISTIC TO CONSIDER THAT
ISSUE OF LAW AS ONE ON WHICH THE GRAND JURY HAS EXERCISED AN
INDEPENDENT JUDGMENT IN DETERMINING WHETHER AN INDICTMENT SHOULD BE
RETURNED.  FOR THAT BODY MAY BE EXPECTED, QUITE NATURALLY AND PROPERLY,
TO FOLLOW THE DISTRICT ATTORNEY'S ADVICE ON THIS SCORE, AS WITH ANY
OTHER MATTER OF LAW.  THAT THE LEGAL PREMISES ON WHICH THE GRAND JURY
ACTED IN THIS RESPECT MAY TURN OUT TO HAVE BEEN WRONG COULD HARDLY
VITIATE THE INDICTMENT ITSELF. 

FN15  360 U.S. 109; 365 U.S. 399; 365 U.S. 431. 
..END :
























I.L.F.Y. CO. V. TEMPORARY STATE HOUSING RENT COMMISSION 369 U.S. 795 


NO. 569.  DECIDED MAY 21, 1962 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  10 N.Y.2D 263, 176
N.E.2D 822. 


I.L.F.Y. CO. V. TEMPORARY STATE HOUSING RENT COMMISSION ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













BROWN, DBA TIA WANNA V. CHENEY 369 U.S. 796 


NO. 829.  DECIDED MAY 21, 1962 - APPEAL DISMISSED; CERTIORARI DENIED.  -
REPORTED BELOW: 233 ARK. 920, 350 S.W.2D 184. 


BROWN, DOING BUSINESS AS TIA WANNA, ET AL. V. CHENEY, COMMISSIONER OF
REVENUES OF ARKANSAS. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













VAUGHAN V. ATKINSON 369 U.S. 527 


NO. 323.  ARGUED MARCH 22, 1962 - DECIDED MAY 14, 1962 - 291 F.2D 813,
REVERSED. 


PETITIONER, A SEAMAN, WAS DISCHARGED FROM RESPONDENTS' SHIP AT THE END
OF A VOYAGE, AND THE MASTER GAVE HIM A CERTIFICATE TO ENTER A PUBLIC
HEALTH SERVICE HOSPITAL, WHICH ADMITTED HIM AS AN INPATIENT, TREATED
HIM FOR SUSPECTED TUBERCULOSIS FOR SEVERAL WEEKS AND THEN TREATED HIM
AS AN OUTPATIENT FOR OVER TWO YEARS BEFORE DECLARING HIM FIT FOR DUTY. 
WHEN HE WAS ADMITTED TO OUTPATIENT STATUS, PETITIONER SENT THE
SHIPOWNER AN ABSTRACT OF HIS MEDICAL RECORD AND REQUESTED PAYMENT FOR
MAINTENANCE AND CURE; BUT HIS REQUEST WAS NOT COMPLIED WITH, AND HE
WORKED AS A TAXI DRIVER TO SUPPORT HIMSELF WHILE RECEIVING OUTPATIENT
TREATMENT.  FINALLY HE EMPLOYED COUNSEL AND BROUGHT THIS SUIT IN
ADMIRALTY TO RECOVER (A) MAINTENANCE AND CURE, AND (B) DAMAGES FOR
FAILURE TO PAY FOR MAINTENANCE AND CURE.  THE DISTRICT COURT AWARDED
HIM MAINTENANCE, MINUS THE AMOUNT OF HIS EARNINGS AS A TAXI DRIVER, BUT
DENIED HIM DAMAGES.  HELD: 

1.  ON THE RECORD IN THIS CASE, PETITIONER WAS ENTITLED TO REASONABLE
COUNSEL FEES AS DAMAGES FOR FAILURE TO PAY FOR MAINTENANCE.  PP. 530
531. 

2.  ON THE RECORD IN THIS CASE, PETITIONER WAS ENTITLED TO PAY FOR
MAINTENANCE WITHOUT DEDUCTION OF THE AMOUNT OF HIS EARNINGS AS A TAXI
DRIVER.  PP. 531-534. 

VAUGHAN V. ATKINSON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BRENNAN. 

THIS IS A SUIT IN ADMIRALTY BROUGHT BY A SEAMAN TO RECOVER (A)
MAINTENANCE AND CURE AND (B) DAMAGES FOR FAILURE TO PAY MAINTENANCE AND
CURE.  (FN1)  THE DISTRICT COURT, WHILE DISALLOWING THE CLAIM FOR
DAMAGES, GRANTED MAINTENANCE, LESS ANY SUMS EARNED BY THE LIBELLANT
DURING THE PERIOD IN QUESTION.  200 F. SUPP. 802.  THE COURT OF APPEALS
AFFIRMED, CHIEF JUDGE SOBELOFF DISSENTING.  291 F.2D 813.  THE CASE IS
HERE ON A WRIT OF CERTIORARI.  368 U.S. 888. 

LIBELLANT SERVED ON RESPONDENTS' (FN2) VESSEL FROM NOVEMBER 26, 1956,
TO MARCH 2, 1957, WHEN HE WAS DISCHARGED ON TERMINATION OF A VOYAGE. 
ON MARCH 7, 1957, HE REPORTED TO A UNITED STATES PUBLIC HEALTH SERVICE
HOSPITAL FOR EXAMINATION AND WAS ADMITTED ON MARCH 18, 1957, AS AN
INPATIENT, AND TREATED FOR SUSPECTED TUBERCULOSIS.  ON JUNE 6, 1957, HE
WAS DISCHARGED TO AN OUTPATIENT STATUS AND HE REMAINED IN THAT STATUS
FOR OVER TWO YEARS.  ON AUGUST 25, 1959, HE WAS NOTIFIED THAT HE WAS
FIT FOR DUTY AS OF AUGUST 19, 1959. 

THE HOSPITAL RECORDS SHOW A STRONG PROBABILITY OF ACTIVE
TUBERCULOSIS.  THE MASTER FURNISHED LIBELLANT A CERTIFICATE TO ENTER
THE HOSPITAL ON HIS DISCHARGE, MARCH 2, 1957.  THOUGH LIBELLANT
FORWARDED TO THE OWNER'S AGENT AN ABSTRACT OF HIS CLINICAL RECORD AT
THE HOSPITAL IN 1957, THE ONLY INVESTIGATION CONDUCTED BY THEM WAS AN
INTERROGATION OF THE MASTER AND CHIEF ENGINEER, WHO STATED THAT THE
LIBELLANT HAD NEVER COMPLAINED OF ANY ILLNESS DURING HIS FOUR MONTHS'
SERVICE.  THE OWNER MADE NO EFFORT TO MAKE ANY FURTHER INVESTIGATION OF
LIBELLANT'S CLAIM FOR MAINTENANCE AND CURE, AND ACCORDING TO THE
FINDINGS DID NOT BOTHER EVEN TO ADMIT OR DENY THE VALIDITY OF THAT
CLAIM.  NEARLY TWO YEARS PASSED DURING WHICH LIBELLANT WAS ON HIS OWN. 
ULTIMATELY HE WAS REQUIRED TO HIRE AN ATTORNEY AND SUE IN THE COURTS TO
RECOVER MAINTENANCE AND CURE, AGREEING TO PAY THE LAWYER A 50%
CONTINGENT FEE.  EVEN SO, THE DISTRICT COURT HELD THAT NO DAMAGES FOR
FAILURE TO FURNISH MAINTENANCE AND CURE HAD BEEN SHOWN.  IN ITS VIEW
SUCH DAMAGES ARE PAYABLE NOT FOR ATTORNEY'S FEES INCURRED BUT ONLY WHEN
THE FAILURE TO FURNISH MAINTENANCE AND CURE CAUSED OR AGGRAVATED THE
ILLNESS OR OTHER PHYSICAL OR MENTAL SUFFERING. 

THE DISTRICT COURT FIRST ALLOWED MAINTENANCE AT THE RATE OF $8 A DAY
FROM JUNE 6, 1957, TO FEBRUARY 18, 1959.  SINCE LIBELLANT DURING THAT
PERIOD HAD WORKED AS A TAXI DRIVER, THE DISTRICT COURT ORDERED THAT HIS
EARNINGS BE DEDUCTED FROM THE AMOUNT OWED BY RESPONDENTS.  SUBJECT TO
THAT CREDIT, THE ORDER ALSO PROVIDED THAT MAINTENANCE AT $8 PER DAY BE
CONTINUED UNTIL SUCH TIME AS THE LIBELLANT REACHED THE MAXIMUM STATE OF
RECOVERY.  THE DISTRICT COURT ALLOWED IN ADDITION 6% INTEREST FOR EACH
WEEK'S MAINTENANCE UNPAID.  SUBSEQUENTLY THE DISTRICT COURT EXTENDED
THE MAINTENANCE TO COVER THE PERIOD FROM MARCH 7, 1957, TO MARCH 17,
1957, AND FROM FEBRUARY 18, 1959, THROUGH AUGUST 25, 1959, THESE LATER
AWARDS BEING WITHOUT INTEREST. 

THE COURT OF APPEALS DENIED COUNSEL FEES AS DAMAGES, RELYING ON THE
CONVENTIONAL RULE THAT IN SUITS FOR BREACH OF CONTRACT THE PROMISEE IS
NOT ALLOWED THAT ITEM IN COMPUTING THE DAMAGES PAYABLE BY THE
PROMISOR.  AND THE COURT OF APPEALS, FOLLOWING WILSON V. UNITED STATES,
229 F.2D 277, AND PEREZ V. SUWANEE S.S. CO., 239 F.2D 180, FROM THE
SECOND CIRCUIT, HELD THAT A SEAMAN HAS THE DUTY TO MITIGATE DAMAGES AND
THAT SINCE "THE PURPOSE OF MAINTENANCE AND CURE IS TO MAKE THE SEAMAN
WHOLE," "HE WILL GET SOMETHING MORE THAN HE IS ENTITLED TO" UNLESS HIS
EARNINGS DURING THE PERIOD ARE DEDUCTED.  291 F.2D, AT 814, 815. 

WE DISAGREE WITH THE LOWER COURTS ON BOTH POINTS. 

    I. 

EQUITY IS NO STRANGER IN ADMIRALTY; ADMIRALTY COURTS ARE, INDEED,
AUTHORIZED TO GRANT EQUITABLE RELIEF.  SEE SWIFT & CO. V. COMPANIA
CARIBE, 339 U.S. 684, 691-692, WHERE WE SAID, "WE FIND NO RESTRICTION
UPON ADMIRALTY BY CHANCERY SO UNRELENTING AS TO BAR THE GRANT OF ANY
EQUITABLE RELIEF EVEN WHEN THAT RELIEF IS SUBSIDIARY TO ISSUES WHOLLY
WITHIN ADMIRALTY JURISDICTION." 

COUNSEL FEES HAVE BEEN AWARDED IN EQUITY ACTIONS, AS WHERE NEGROES
WERE REQUIRED TO BRING SUIT AGAINST A LABOR UNION TO PREVENT
DISCRIMINATION.  ROLAX V. ATLANTIC COAST LINE R. CO., 186 F.2D 473,
481.  AS WE STATED IN SPRAGUE V. TICONIC BANK, 307 U.S. 161, 164,
ALLOWANCE OF COUNSEL FEES AND OTHER EXPENSES ENTAILED BY LITIGATION,
BUT NOT INCLUDED IN THE ORDINARY TAXABLE COSTS REGULATED BY STATUTE, IS
"PART OF THE HISTORIC EQUITY JURISDICTION OF THE FEDERAL COURTS."  WE
DO NOT HAVE HERE THAT CASE.  NOR DO WE HAVE THE USUAL PROBLEM OF WHAT
CONSTITUTES "COSTS" IN THE CONVENTIONAL SENSE.  CF. THE BALTIMORE, 8
WALL.  377.  OUR QUESTION CONCERNS DAMAGES.  COUNSEL FEES WERE ALLOWED
IN THE APOLLON, 9 WHEAT, 362, 379, AN ADMIRALTY SUIT WHERE ONE PARTY
WAS PUT TO EXPENSE IN RECOVERING DEMURRAGE OF A VESSEL WRONGFULLY
SEIZED.  WHILE FAILURE TO GIVE MAINTENANCE AND CURE MAY GIVE RISE TO A
CLAIM FOR DAMAGES FOR THE SUFFERING AND FOR THE PHYSICAL HANDICAP WHICH
FOLLOWS (THE IROQUOIS, 194 U.S. 240), THE RECOVERY MAY ALSO INCLUDE
"NECESSARY EXPENSES."  CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367,
371. 

IN THE INSTANT CASE RESPONDENTS WERE CALLOUS IN THEIR ATTITUDE,
MAKING NO INVESTIGATION OF LIBELLANT'S CLAIM AND BY THEIR SILENCE
NEITHER ADMITTING NOR DENYING IT.  AS A RESULT OF THAT RECALCITRANCE,
LIBELLANT WAS FORCED TO HIRE A LAWYER AND GO TO COURT TO GET WHAT WAS
PLAINLY OWED HIM UNDER LAWS THAT ARE CENTURIES OLD.  THE DEFAULT WAS
WILLFUL AND PERSISTENT.  IT IS DIFFICULT TO IMAGINE A CLEARER CASE OF
DAMAGES SUFFERED FOR FAILURE TO PAY MAINTENANCE THAN THIS ONE.  (FN3)

        II. 

MAINTENANCE AND CURE IS DESIGNED TO PROVIDE A SEAMAN WITH FOOD AND
LODGING WHEN HE BECOMES SICK OR INJURED IN THE SHIP'S SERVICE; AND IT
EXTENDS DURING THE PERIOD WHEN HE IS INCAPACITATED TO DO A SEAMAN'S
WORK AND CONTINUES UNTIL HE REACHES MAXIMUM MEDICAL RECOVERY.  THE
POLICY UNDERLYING THE DUTY WAS SUMMARIZED IN CALMAR S.S. CORP. V.
TAYLOR, 303 U.S. 525, 528: 

"THE REASONS UNDERLYING THE RULE, TO WHICH REFERENCE MUST BE MADE IN
DEFINING IT, ARE THOSE ENUMERATED IN THE CLASSIC PASSAGE BY MR. JUSTICE
STORY IN HARDEN V. GORDON, FED. CAS. NO. 6047 (C.C.):  THE PROTECTION
OF SEAMEN, WHO, AS A CLASS, ARE POOR, FRIENDLESS AND IMPROVIDENT, FROM
THE HAZARDS OF ILLNESS AND ABANDONMENT WHILE ILL IN FOREIGN PORTS; THE
INDUCEMENT TO MASTERS AND OWNERS TO PROTECT THE SAFETY AND HEALTH OF
SEAMEN WHILE IN SERVICE; THE MAINTENANCE OF A MERCHANT MARINE FOR THE
COMMERCIAL SERVICE AND MARITIME DEFENSE OF THE NATION BY INDUCING MEN
TO ACCEPT EMPLOYMENT IN AN ARDUOUS AND PERILOUS SERVICE." 

ADMIRALTY COURTS HAVE BEEN LIBERAL IN INTERPRETING THIS DUTY "FOR THE
BENEFIT AND PROTECTION OF SEAMEN WHO ARE ITS WARDS."  ID., AT 529.  WE
NOTED IN AGUILAR V. STANDARD OIL CO., 318 U.S. 724, 730, THAT THE
SHIPOWNER'S LIABILITY FOR MAINTENANCE AND CURE WAS AMONG "THE MOST
PERVASIVE" OF ALL AND THAT IT WAS NOT TO BE DEFEATED BY RESTRICTIVE
DISTINCTIONS NOR "NARROWLY CONFINED."  ID., AT 735.   WHEN THERE ARE
AMBIGUITIES OR DOUBTS, THEY ARE RESOLVED IN FAVOR OF THE SEAMAN. 
WARREN V. UNITED STATES, 340 U.S. 523. 

MAINTENANCE AND CURE DIFFERS FROM RIGHTS NORMALLY CLASSIFIED AS
CONTRACTUAL.  AS MR. JUSTICE CARDOZO SAID IN CORTES V. BALTIMORE
INSULAR LINE, SUPRA, 371, THE DUTY TO PROVIDE MAINTENANCE AND CURE
(FN4) "IS IMPOSED BY THE LAW ITSELF AS ONE ANNEXED TO THE EMPLOYMENT
...  .  CONTRACTUAL IT IS IN THE SENSE THAT IT HAS ITS SOURCE IN A
RELATION WHICH IS CONTRACTUAL IN ORIGIN, BUT GIVEN THE RELATION, NO
AGREEMENT IS COMPETENT TO ABROGATE THE INCIDENT." 

IN JOHNSON V. UNITED STATES, 333 U.S. 46, WE HELD THAT A SEAMAN WHO
WHILE AN OUTPATIENT WAS LIVING ON HIS PARENTS' RANCH WITHOUT COST TO
HIMSELF WAS NOT ENTITLED TO MAINTENANCE PAYMENTS.  THERE MAINTENANCE
AND CURE WAS WHOLLY PROVIDED BY OTHERS.  HERE THE LIBELLANT WAS ON HIS
OWN FOR NEARLY TWO YEARS AND REQUIRED TO WORK IN ORDER TO SURVIVE.  IT
WOULD BE A SORRY DAY FOR SEAMEN IF SHIPOWNERS, KNOWING OF THE CLAIM FOR
MAINTENANCE AND CURE, COULD DISREGARD IT, FORCE THE DISABLED SEAMAN TO
WORK, AND THEN EVADE PART OR ALL OF THEIR LEGAL OBLIGATION BY HAVING IT
REDUCED BY THE AMOUNT OF THE SICK MAN'S EARNINGS.  THIS WOULD BE A
DREADFUL WEAPON IN THE HANDS OF UNCONSCIONABLE EMPLOYERS AND A PLAIN
INDUCEMENT, AS CHIEF JUDGE SOBELOFF SAID BELOW (291 F.2D, AT 820), TO
USE THE WITHHOLDING OF MAINTENANCE AND CURE AS A MEANS OF FORCING SICK
SEAMEN TO GO TO WORK WHEN THEY SHOULD BE RESTING, AND TO MAKE THE
SEAMEN THEMSELVES PAY IN WHOLE OR IN PART THE AMOUNTS OWING AS
MAINTENANCE AND CURE.  THIS RESULT IS AT WAR WITH THE LIBERAL ATTITUDE
THAT HERETOFORE HAS OBTAINED AND WITH ADMIRALTY'S TENDER REGARD FOR
SEAMEN.  WE THINK THE VIEW OF THE THIRD CIRCUIT (SEE YATES V. DANN, 223
F.2D 64, 67) IS PREFERABLE TO THAT OF THE SECOND CIRCUIT AS EXPRESSED
IN WILSON V. UNITED STATES AND PEREZ V. SUWANEE S.S. CO., SUPRA, AND TO
THAT OF THE FOURTH CIRCUIT IN THIS CASE.  REVERSED. 

FN1  CLAIMS FOR DAMAGES FOR THE ILLNESS AND FOR WAGES, DISALLOWED
BELOW, ARE NOT PRESENTED HERE. 

FN2  THE OWNER WAS AMERICAN WATERWAYS CORP., AND NATIONAL SHIPPING &
TRADING CORP. WAS ITS AGENT, BOTH BEING RESPONDENTS.  RESPONDENT
ATKINSON WAS THE MASTER. 

FN3  WHETHER COUNSEL FEES IN THE AMOUNT OF 50% OF THE AWARD ARE
REASONABLE IS A MATTER ON WHICH WE EXPRESS NO OPINION, AS IT WAS NOT
CONSIDERED BY EITHER THE DISTRICT COURT OR THE COURT OF APPEALS. 

FN4  IT DERIVES FROM ARTICLE VI OF THE LAWS OF OLERON, 30 FED. CAS.
1171, 1174: 

"IF ANY OF THE MARINERS HIRED BY THE MASTER OF ANY VESSEL, GO OUT OF
THE SHIP WITHOUT HIS LEAVE, AND GET THEMSELVES DRUNK, AND THEREBY THERE
HAPPENS CONTEMPT TO THEIR MASTER, DEBATES, OR FIGHTING AND QUARRELLING
AMONG THEMSELVES, WHEREBY SOME HAPPEN TO BE WOUNDED:  IN THIS CASE THE
MASTER SHALL NOT BE OBLIGED TO GET THEM CURED, OR IN ANY THING TO
PROVIDE FOR THEM, BUT MAY TURN THEM AND THEIR ACCOMPLICES OUT OF THE
SHIP; AND IF THEY MAKE WORDS OF IT, THEY ARE BOUND TO PAY THE MASTER
BESIDES:  BUT IF BY THE MASTER'S ORDERS AND COMMANDS ANY OF THE SHIP'S
COMPANY BE IN THE SERVICE OF THE SHIP, AND THEREBY HAPPEN TO BE WOUNDED
OR OTHERWISE HURT, IN THAT CASE THEY SHALL BE CURED AND PROVIDED FOR AT
THE COSTS AND CHARGES OF THE SAID SHIP." 

JUSTICE STORY, IN HOLDING THAT MAINTENANCE AND CURE WAS A CHARGE UPON
THE SHIP, SAID CONCERNING ITS HISTORY: 

"THE SAME PRINCIPLE IS RECOGNISED IN THE ANCIENT LAWS OF WISBUY (LAWS
OF WISBUY, ART. 19), AND IN THOSE OF OLERON, WHICH HAVE BEEN HELD IN
PECULIAR RESPECT BY ENGLAND, AND HAVE BEEN IN SOME MEASURE INCORPORATED
INTO HER MARITIME JURISPRUDENCE.  THE CONSOLATO DEL MARE DOES NOT SPEAK
PARTICULARLY ON THIS POINT; BUT FROM THE PROVISIONS OF THIS VENERABLE
COLLECTION OF MARITIME USAGES IN CASES NEARLY ALLIED, THERE IS EVERY
REASON TO INFER, THAT A SIMILAR RULE THEN PREVAILED IN THE
MEDITERRANEAN.  CONSOLATO DEL MARE, CC. 124, 125; BOUCHER, CONSULAT DE
LA MER, CC. 127, 128.  MOLLOY EVIDENTLY ADOPTS IT AS A GENERAL DOCTRINE
OF MARITIME LAW (MOLLOY, B. 2, C. 3, SEC. 5, P. 243); AND TWO
ELEMENTARY WRITERS OF MOST DISTINGUISHED REPUTATION HAVE QUOTED IT FROM
THE OLD ORDINANCES WITHOUT THE SLIGHTEST INTIMATION, THAT IT WAS NOT
PERFECTLY CONSONANT WITH THE RECEIVED LAW AND USAGE OF ENGLAND.  ABB. 
SHIPP.  P. 2, C. 4, SEC. 14; 2 BROWN, ADM. 182-184.  THERE IS PERHAPS
UPON THIS SUBJECT A GREATER EXTENT AND UNIFORMITY OF MARITIME
AUTHORITY, THAN CAN PROBABLY BE FOUND IN SUPPORT OF MOST OF THOSE
PRINCIPLES OF COMMERCIAL LAW, WHICH HAVE BEEN SO SUCCESSFULLY ENGRAFTED
INTO OUR JURISPRUDENCE WITHIN THE LAST CENTURY."  HARDEN V. GORDON, 11
FED. CAS. 480, 483. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

I AGREE WITH THE COURT THAT WHETHER EARNINGS RECEIVED BY A DISABLED
SEAMAN PRIOR TO HIS MAXIMUM MEDICAL RECOVERY ARE TO BE CREDITED AGAINST
THE SHIPOWNER'S OBLIGATION FOR MAINTENANCE IS AN ISSUE WHICH SHOULD NOT
BE RESOLVED BY A MECHANICAL APPLICATION OF THE RULES OF CONTRACT LAW
RELATING TO MITIGATION OF DAMAGES.  BUT I CANNOT AGREE THAT IN THIS
CASE THE PETITIONER'S EARNINGS SHOULD NOT HAVE BEEN SET OFF AGAINST THE
MAINTENANCE OWED TO HIM.  NOR CAN I AGREE WITH THE COURT'S CONCLUSION
THAT THE PETITIONER IS ENTITLED AS A MATTER OF LAW TO DAMAGES IN THE
AMOUNT OF THE COUNSEL FEES EXPENDED IN HIS SUIT FOR MAINTENANCE AND
CURE. 

THE DUTY TO PROVIDE MAINTENANCE AND CURE IS IN NO REAL SENSE
CONTRACTUAL, AND A SUIT FOR FAILURE TO PROVIDE MAINTENANCE OR CURE CAN
HARDLY BE EQUATED, THEREFORE, WITH AN ACTION FOR BREACH OF CONTRACT. 
"THE DUTY  ...  IS ONE ANNEXED BY LAW TO A RELATION, AND ANNEXED AS AN
INSEPARABLE INCIDENT WITHOUT HEED TO ANY EXPRESSION OF THE WILL OF THE
CONTRACTING PARTIES."  CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367,
372.  MOREOVER, IF THE SEAMAN'S ACCOUNTABILITY FOR EARNINGS WERE TO BE
DETERMINED SOLELY BY REFERENCE TO DAMAGE MITIGATION PRINCIPLES OF
CONTRACT LAW, THE BREACH OF THE SHIPOWNER'S DUTY TO PAY MAINTENANCE
WOULD BECOME CRUCIAL, SINCE WITHOUT SUCH A BREACH ON HIS PART NO DUTY
TO MITIGATE WOULD ARISE.  (FN1)  THE ASSIGNMENT OF SUCH A DISPOSITIVE
ROLE TO THE SHIPOWNER'S FAILURE TO PERFORM HIS OBLIGATION WOULD CREATE
AN UNWARRANTED INCENTIVE FOR REFUSING TO PERFORM IT.    THIS ISSUE
SHOULD BE DECIDED, RATHER, WITH REFERENCE TO THE SCOPE OF THE DUTY
WHICH THE ADMIRALTY LAW IMPOSES.  THE OBLIGATION OF A SHIPOWNER,
IRRESPECTIVE OF FAULT, TO PROVIDE MAINTENANCE AND CURE TO A SEAMAN
INJURED OR TAKEN ILL WHILE IN THE SHIP'S SERVICE HAS LOST MUCH OF ITS
ORIGINAL SIGNIFICANCE IN THIS ERA OF RELAXED UNSEAWORTHINESS AND
NEGLIGENCE CONCEPTS.  BUT THE OBLIGATION IS OF ANCIENT ORIGIN, (FN2)
FIRST RECOGNIZED IN OUR LAW IN HARDEN V. GORDON, 11 FED. CAS. 480, NO.
6,047, AND REED V. CANFIELD, 20 FED. CAS. 426, NO. 11,641.  (FN3)  THE
DUTY WAS HISTORICALLY IMPOSED IN ORDER TO ALLEVIATE THE PHYSICAL AND
FINANCIAL HARDSHIPS WHICH OTHERWISE WOULD HAVE BESET A SICK OR INJURED
SEAMAN PUT ASHORE, PERHAPS IN A FOREIGN PORT, WITHOUT MEANS OF SUPPORT,
OR HOPE OF OBTAINING MEDICAL CARE.  SEE HARDEN V. GORDON, SUPRA, AT 483
(STORY, J.).  THE LAW OF THE SEA SOUGHT TO ALLEVIATE THESE HARDSHIPS,
PARTLY FOR HUMANITARIAN REASONS, AND PARTLY BECAUSE OF THE STRONG
NATIONAL INTEREST IN MAINTAINING THE MORALE AND PHYSICAL EFFECTIVENESS
OF THE MERCHANT MARINE.  CALMAR S.S. CORP. V. TAYLOR, 303 U.S. 525,
528. 

BUT "THE DUTY DOES NOT EXTEND BEYOND THE SEAMAN'S NEED."  CALMAR S.S.
CORP. V. TAYLOR, SUPRA, AT 531.  IT ENDS ABSOLUTELY WHEN A POINT OF
MAXIMUM MEDICAL RECOVERY HAS BEEN REACHED.  ID., AT 530; FARRELL V.
UNITED STATES, 336 U.S. 511.  AND WHEN THE SEAMAN HAS NOT INCURRED
EXPENSE, THE SHIPOWNER HAS NO OBLIGATION TO MAKE PAYMENT.  (FN4)  THUS
A SEAMAN HOSPITALIZED WITHOUT EXPENSE IN A MARINE HOSPITAL IS NOT
ENTITLED TO MAINTENANCE AND CURE FOR THAT PERIOD.  CALMAR S.S. CORP. V.
TAYLOR, SUPRA, AT 531.  NOR MUST THE SHIPOWNER PAY MAINTENANCE TO A
SEAMAN WHO CONVALESCES AT THE HOME OF HIS PARENTS WITHOUT INCURRING
EXPENSE OR LIABILITY FOR HIS SUPPORT.  JOHNSON V. UNITED STATES, 333
U.S. 46, 50. 

SINCE THE LIMITED PURPOSE OF MAINTENANCE IS TO MAKE THE SEAMAN WHOLE,
IT WOULD LOGICALLY FOLLOW THAT THERE SHOULD BE NO SUCH DUTY FOR PERIODS
WHEN THE SEAMAN, THOUGH NOT YET AT THE POINT OF MAXIMUM CURE, EITHER
DOES IN FACT OBTAIN EQUIVALENTLY GAINFUL EMPLOYMENT OR IS ABLE TO DO
SO.  (FN5)  MOREOVER, NO RULE WHICH KEEPS ABLE WORKERS IDLE CAN BE
DEEMED A DESIRABLE ONE.  (FN6)  BUT THERE ARE COUNTERVAILING POLICIES
INVOLVED IN RESOLVING THE ISSUE.  THE ADEQUATE PROTECTION OF AN INJURED
OR ILL SEAMAN AGAINST SUFFERING AND WANT REQUIRES MORE THAN THE
ASSURANCE THAT HE WILL RECEIVE PAYMENTS AT SOME TIME IN THE INDEFINITE
FUTURE.  PAYMENTS MUST BE PROMPTLY MADE, AT A TIME CONTEMPORANEOUS TO
THE ILLNESS OR INJURY.  AND FOR THIS REASON THE MAINTENANCE REMEDY
SHOULD BE KEPT SIMPLE, UNCLUTTERED BY FINE DISTINCTIONS WHICH BREED
LITIGATION, WITH ITS ATTENDANT DELAYS AND EXPENSES.  SEE FARRELL V.
UNITED STATES, 336 U.S. 511, 516.  A SHIPOWNER SHOULD THEREFORE NOT BE
ENCOURAGED TO WITHHOLD MAINTENANCE PAYMENTS IN THE HOPE THAT ECONOMIC
NECESSITY WILL FORCE THE SEAMAN BACK TO WORK AND THEREBY REDUCE THE
SHIPOWNER'S LIABILITY.  MOREOVER, MAINTENANCE PAYMENTS ARE DESIGNED TO
MEET THE LIVING EXPENSES OF THE SEAMAN UNTIL MAXIMUM CURE IS REACHED. 
THE ULTIMATE GOAL IS THE RECOVERY OF THE SEAMAN, AND THIS REQUIRES THE
AVOIDANCE OF PRESSURES WHICH WOULD FORCE HIM TO OBTAIN EMPLOYMENT WHICH
HINDERS HIS RECOVERY.  (FN7) 

THE NEED FOR PROMPT PAYMENT AND THE DESIRABILITY OF AVOIDING ANY RULE
WHICH MIGHT FORCE A SEAMAN BACK TO WORK TO THE DETRIMENT OF HIS
RECOVERY MIGHT WELL REQUIRE THAT NO COMPULSION TO SEEK EMPLOYMENT BE
PLACED ON A CONVALESCING SEAMAN, AND THAT A SETOFF BE ALLOWED ONLY WITH
RESPECT TO ACTUAL, AS OPPOSED TO POTENTIAL, EARNINGS.  BUT THIS
QUESTION IS NOT PRESENTED BY THE RECORD BEFORE US.  SIMILARLY, IT MAY
WELL BE THAT A SEAMAN SHOULD NOT BE HELD TO ACCOUNT FOR ACTUAL EARNINGS
TO A SHIPOWNER WHOSE DERELICTION IN MAKING PAYMENTS COMPELS THE SEAMAN,
AS A MATTER OF ECONOMIC NECESSITY, TO OBTAIN GAINFUL EMPLOYMENT.  BUT
THAT QUESTION IS NOT PRESENTED BY THE PRESENT CASE EITHER, FOR THERE IS
NO SHOWING HERE THAT THE SEAMAN'S RETURN TO WORK WAS BROUGHT ON BY
ECONOMIC NECESSITY.  SO FAR AS THE RECORD BEFORE US INDICATES, THE
PETITIONER'S RETURN TO WORK WAS COMPLETELY VOLUNTARY, AND NOT THE
RESULT OF THE SHIPOWNER'S FAILURE TO PAY MAINTENANCE.  HOLDING THE
SEAMAN ACCOUNTABLE FOR HIS EARNINGS IN SUCH CIRCUMSTANCES CARRIES OUT
THE BASIC PURPOSE OF MAKING THE SEAMAN WHOLE, AND CREATES NEITHER AN
UNDUE INCENTIVE FOR WITHHOLDING PAYMENTS, NOR PRESSURE COMPELLING A
PREMATURE RETURN TO WORK.  I THEREFORE THINK THAT THE DISTRICT COURT
AND THE COURT OF APPEALS WERE RIGHT IN HOLDING THAT THE PETITIONER WAS
NOT ENTITLED TO MAINTENANCE FOR THE PERIOD DURING WHICH HE WAS
GAINFULLY EMPLOYED AS A TAXICAB DRIVER.  (FN8) 

THE SECOND ISSUE PRESENTED IN THIS CASE IS WHETHER THE PETITIONER
SHOULD HAVE BEEN AWARDED DAMAGES IN THE AMOUNT OF THE COUNSEL FEES
INCURRED IN BRINGING HIS ACTION FOR MAINTENANCE AND CURE.  THE COURT
HELD IN CORTES V. BALTIMORE INSULAR LINE, SUPRA, AT 371, THAT "IF THE
FAILURE TO GIVE MAINTENANCE OR CURE HAS CAUSED OR AGGRAVATED AN
ILLNESS, THE SEAMAN HAS HIS RIGHT OF ACTION FOR THE INJURY THUS DONE TO
HIM, THE RECOVERY IN SUCH CIRCUMSTANCES INCLUDING NOT ONLY NECESSARY
EXPENSES, BUT ALSO COMPENSATION FOR THE HURT."  BUT NEITHER THE CORTES
DECISION, NOR ANY OTHER THAT I HAVE BEEN ABLE TO FIND, FURNISHES A
BASIS FOR HOLDING AS A MATTER OF LAW THAT A SEAMAN FORCED TO BRING SUIT
TO RECOVER MAINTENANCE AND CURE IS ALSO ENTITLED TO RECOVER HIS COUNSEL
FEES.  CORTES DEALT WITH COMPENSATORY DAMAGES FOR A PHYSICAL INJURY,
AND THE OPINION IN THAT CASE CONTAINS NOTHING TO INDICATE A DEPARTURE
FROM THE WELL-ESTABLISHED RULE THAT COUNSEL FEES MAY NOT BE RECOVERED
AS COMPENSATORY DAMAGES.  MCCORMICK, DAMAGES, SEC. 61. 

HOWEVER, IF THE SHIPOWNER'S REFUSAL TO PAY MAINTENANCE STEMMED FROM A
WANTON AND INTENTIONAL DISREGARD OF THE LEGAL RIGHTS OF THE SEAMAN, THE
LATTER WOULD BE ENTITLED TO EXEMPLARY DAMAGES IN ACCORD WITH
TRADITIONAL CONCEPTS OF THE LAW OF DAMAGES.  MCCORMICK, DAMAGES, SEC.
79.  WHILE THE AMOUNT SO AWARDED WOULD BE IN THE DISCRETION OF THE FACT
FINDER, AND WOULD NOT NECESSARILY BE MEASURED BY THE AMOUNT OF COUNSEL
FEES, INDIRECT COMPENSATION FOR SUCH EXPENDITURES MIGHT THUS BE MADE. 
SEE DAY V. WOODWORTH, 13 HOW.  363, 361.  ON THIS ISSUE I WOULD
ACCORDINGLY REMAND THE CASE TO THE DISTRICT COURT, SO THAT THE
CIRCUMSTANCES WHICH MOTIVATED THE RESPONDENTS' FAILURE TO MAKE
MAINTENANCE PAYMENTS COULD BE FULLY CANVASSED. 

FN1  MCCORMICK, DAMAGES, SECS. 158-160; RESTATEMENT, CONTRACTS, SEC.
336(1); 5 CORBIN, CONTRACTS, SEC. 1041. 

FN2  THE EARLIEST CODIFICATIONS OF THE LAW OF THE SEA PROVIDED FOR
MEDICAL TREATMENT AND WAGES FOR MARINERS INJURED OR FALLING ILL IN THE
SHIP'S SERVICE.  THESE EARLY MARITIME CODES ARE, FOR THE MOST PART,
REPRINTED IN 30 FED. CAS. 1171-1216.  SEE ARTS. VI AND VII OF THE LAWS
OF OLERON, 30 FED. CAS. 1174-1175; ARTS. XVIII, XIX, AND XXXIII OF THE
LAWS OF WISBUY, 30 FED. CAS. 1191, 1192; ARTS. XXXIX AND XLV OF THE
LAWS OF THE HANSE TOWNS, 30 FED. CAS.  1200; AND TITLE FOURTH, ARTS. XI
AND XII, OF THE MARINE ORDINANCES OF LOUIS XIV, 30 FED. CAS.  1209. 
THESE PROVISIONS MAY ALSO BE FOUND REPRINTED IN 2 NORRIS, THE LAW OF
SEAMEN, SEC. 537.  OTHER PROVISIONS RATHER SIMILAR TO THE PRESENT
MAINTENANCE AND CURE REMEDY MAY BE FOUND IN THE ORDINANCES OF TRANI,
ART. X, 4 BLACK BOOK OF THE ADMIRALTY (TWISS' ED. 1876) 531; THE TABLES
OF AMALPHI, ART. 14, 4 BLACK BOOK OF THE ADMIRALTY (TWISS' ED. 1876)
13. 

FN3  SEE GILMORE AND BLACK, ADMIRALTY, 253. 

FN4  SEE STANKIEWICZ V. UNITED FRUIT S.S. CORP., 229 F.2D 580;
WILLIAMS V. UNITED STATES, 228 F.2D 129; DODD V. THE M/V PEGGY G., 149
F. SUPP. 823; NUNES V. FARRELL LINES, INC., 129 F. SUPP. 147, AFFIRMED
AS TO THIS POINT, 227 F.2D 619; BALLARD V. ALCOA S.S. CO., INC., 122 F.
SUPP. 10; GILMORE AND BLACK, ADMIRALTY, 266; 2 NORRIS, THE LAW OF
SEAMEN, SEC. 568. 

FN5  SIMILARLY, THERE IS GENERALLY NO DUTY TO MAKE PAYMENTS FOR CURE
IF MARINE HOSPITAL SERVICE IS AVAILABLE, AND A SEAMAN SEEKS
HOSPITALIZATION ELSEWHERE.  UNITED STATES V. LOYOLA, 161 F.2D 126;
UNITED STATES V. JOHNSON, 160 F.2D 789; MARSHALL V. INTERNATIONAL
MERCANTILE MARINE CO., 39 F.2D 551; ZACKEY V. AMERICAN EXPORT LINES,
INC., 152 F. SUPP. 772; BENTON V. UNITED TOWING CO., 120 F. SUPP. 638. 
SEE KOSSICK V. UNITED FRUIT CO., 365 U.S. 731, 737; CALMAR S.S. CORP.
V. TAYLOR, 303 U.S. 525, 531.  IN EXCEPTIONAL CIRCUMSTANCES, HOWEVER,
WHERE ADEQUATE TREATMENT IS NOT AVAILABLE AT A MARINE HOSPITAL,
EXPENSES INCURRED FOR HOSPITALIZATION ELSEWHERE MAY BE CHARGEABLE TO
THE SHIPOWNER.  WILLIAMS V. UNITED STATES, 133 F. SUPP. 319, AFF'D, 228
F.2D 129. 

FN6  ACTUAL EARNINGS DURING A PERIOD PRIOR TO MAXIMUM CURE HAVE BEEN
ALLOWED AS AN OFFSET AGAINST MAINTENANCE PAYMENTS IN MANY REPORTED
CASES, USUALLY WITHOUT DISCUSSION.  RODGERS V. UNITED STATES LINES CO.,
189 F.2D 226; INTER OCEAN S.S. CO. V. BEHRENDSEN, 128 F.2D 506;
LOVERICH V. WARNER CO., 118 F.2D 690; COLON V. TRINIDAD CORP., 188 F.
SUPP. 97; SCOTT V. LYKES BROS. S.S. CO., 152 F. SUPP. 104; BENTON V.
UNITED TOWING CO., 120 F. SUPP. 638, AFF'D, 224 F.2D 558; STEINBERG V.
AMERICAN EXPORT LINES, INC., 81 F. SUPP. 362; BURCH V. SMITH, 77 F.
SUPP. 6; THE EASTERN DAWN, 25 F.2D 322.  IN WILSON V. UNITED STATES,
229 F.2D 277, THE COURT HELD, AFTER DISCUSSION, THAT THE SHIPOWNER
SHOULD BE PERMITTED TO OFFSET POTENTIAL EARNINGS, THE SEAMAN HAVING
FAILED TO ESTABLISH THAT HE COULD NOT HAVE SECURED WORK.  THE SEAMAN
HAD DONE SOME WORK DURING THE PERIOD, AND HAD NOT SOUGHT MAINTENANCE
FOR THE DAYS HE WAS ACTUALLY EMPLOYED.  THE SAME COURT SUBSEQUENTLY
RULED THAT UNDER WILSON A RECUPERATING SEAMAN MUST ACCOUNT FOR ACTUAL
EARNINGS.  PEREZ V. SUWANEE S.S. CO., 239 F.2D 180. 

IN THREE CASES SETOFF OF ACTUAL EARNINGS HAD BEEN DENIED.  IN YATES
V. DANN, 124 F. SUPP.  125, THE DISTRICT JUDGE FOUND THAT THE SEAMAN
HAD BEEN "IN NEED" THROUGHOUT THE WHOLE PERIOD AND SHOULD NOT BE
"PENALIZED" BECAUSE HE RETURNED TO WORK.  THE CASE WAS REVERSED ON
OTHER GROUNDS, 223 F.2D 64, THE COURT SUSTAINING THE RULING OF THE
DISTRICT COURT ON THIS POINT WITH THE STATEMENT THAT "THE CIRCUMSTANCE
THAT APPELLEE WAS FORCED BY FINANCIAL NECESSITY TO RETURN TO HIS
REGULAR EMPLOYMENT IS NOT LEGALLY A BAR TO HIS RECOVERY."  223 F.2D, AT
67.  SEE ALSO HANSON V. REISS STEAMSHIP CO., 184 F. SUPP. 545, 550
("LIABILITY FOR MAINTENANCE AND CURE DOES NOT NECESSARILY CEASE WHEN
THE INJURED PERSON OBTAINS GAINFUL OCCUPATION WHERE SUCH EMPLOYMENT IS
COMPELLED OR INDUCED BY ECONOMIC NECESSITY."); MEIRINO V. GULF OIL
CORP., 170 F. SUPP. 515, 517 ("THE FACT THAT LIBELLANT RETURNED TO WORK
BECAUSE OF ECONOMIC NECESSITY WHILE HE WAS IN NEED OF MEDICAL CARE AND
ATTENTION DOES NOT DEPRIVE HIM OF HIS RIGHT TO MAINTENANCE AND
CURE."). 

FN7  A SEAMAN WHOSE CONDITION IS ACTUALLY AGGRAVATED BY REASON OF THE
SHIPOWNER'S DERELICTION IN MAKING MAINTENANCE AND CURE PAYMENTS MAY OF
COURSE SEEK DAMAGES ABOVE AND BEYOND THE MAINTENANCE AND CURE PAYMENTS
DUE.  CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367.  BUT THE
AVAILABILITY OF THIS REMEDY DOES NOT DETRACT FROM THE IMPORTANCE OF
AVOIDING THE HARMFUL EFFECTS OF A PREMATURE RETURN TO WORK. 

FN8  I WOULD, HOWEVER, REMAND THE CASE TO THE DISTRICT COURT FOR
RECOMPUTATION OF ITS AWARD.  MAINTENANCE IS A DAY-BY-DAY CONCEPT, AND
IN MY VIEW MAINTENANCE SHOULD BE REDUCED OR DENIED ONLY AS TO DAYS
DURING WHICH THE PETITIONER WAS GAINFULLY EMPLOYED.  INSTEAD, THE
DISTRICT COURT COMPUTED THE TOTAL AMOUNT OF MAINTENANCE DUE, AND THEN
DEDUCTED THE TOTAL AMOUNT EARNED BY THE PETITIONER.  COMPARE PEREZ V.
SUWANEE S.S.CO., 239 F.2D 180, WITH WILSON V. UNITED STATES, 229 F.2D
277.  SEE THE FULL DISCUSSION OF THIS ASPECT OF THE PROBLEM IN NOTE, 37
N.Y.U.L. REV.  316, 320-321. 
..END :









BECK V. WASHINGTON 369 U.S. 541 


NO. 40.  ARGUED NOVEMBER 14, 1961 - DECIDED MAY 14, 1962 - 56 WASH. 2D
474, 349 P.2D 387, 353 P.2D 429, AFFIRMED. 


PETITIONER CONTENDED THAT HIS CONVICTION IN A WASHINGTON STATE COURT
OF GRAND LARCENY FROM THE UNION OF WHICH HE WAS PRESIDENT WAS INVALID
UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT, PRIMARILY BECAUSE OF VOLUMINOUS AND INTENSIVE ADVERSE
PUBLICITY CIRCULATED BY NEWS MEDIA IN THE VICINITY WHERE HE WAS
INDICTED AND TRIED.  SPECIFICALLY HE CLAIMED THAT THE GRAND JURY WHICH
INDICTED HIM WAS BIASED, THAT IT WAS UNFAIRLY IMPANELED AND INSTRUCTED,
AND THAT THE PROSECUTOR ACTED IMPROPERLY BEFORE IT.  HELD:  ON THE
RECORD IN THIS CASE, PETITIONER HAS FAILED TO SUSTAIN THE BURDEN OF
SHOWING THAT HIS INDICTMENT, TRIAL AND CONVICTION VIOLATED THE DUE
PROCESS OR EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP.
542-558. 

1.  PETITIONER HAS FAILED TO SHOW THAT THE GRAND JURY PROCEEDINGS
WHICH RESULTED IN HIS INDICTMENT VIOLATED THE DUE PROCESS OR EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 545-555. 

(A)  PETITIONER HAS FAILED TO SHOW THAT THE GRAND JURY WHICH INDICTED
HIM WAS UNFAIRLY IMPANELED OR INSTRUCTED OR WAS BIASED OR PREJUDICED
AGAINST HIM.  PP. 545-549. 

(B)  PETITIONER HAS FAILED TO SHOW THAT HE WAS DENIED EQUAL PROTECTION
OF THE LAWS ON THE GROUND THAT HE IS A MEMBER OF A CLASS (THE UNION OF
WHICH HE WAS PRESIDENT) THAT WAS NOT ACCORDED EQUAL TREATMENT IN THE
GRAND JURY PROCEEDINGS.  P. 549. 

(C)  PETITIONER'S CONTENTION THAT HE WAS DENIED EQUAL PROTECTION OF
THE LAWS BY A WASHINGTON STATUTE WHICH PERMITS PERSONS IN CUSTODY OR ON
BAIL TO CHALLENGE GRAND JURORS BUT DENIES THE SAME RIGHT TO PERSONS WHO
ARE NOT IN CUSTODY OR ON BAIL WHEN INVESTIGATED BY GRAND JURIES, IS NOT
PROPERLY BEFORE THIS COURT.  PP. 549-554. 

(D)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE STATE HAS
FAILED TO AFFORD PETITIONER THE PROCEDURAL SAFEGUARDS IT AFFORDS OTHERS
TO INSURE AN UNBIASED GRAND JURY OR THAT A FAILURE TO AFFORD SUCH
PROCEDURES WOULD DENY PETITIONER EQUAL PROTECTION OF THE LAWS.  PP. 554
555. 

(E)  IT CANNOT BE SAID THAT THE MANNER IN WHICH A WITNESS BEFORE THE
GRAND JURY WAS INTERROGATED VIOLATED PETITIONER'S CONSTITUTIONAL
RIGHTS.  P. 555. 

2.  ON THE RECORD IN THIS CASE, PETITIONER HAS NOT SUSTAINED THE
BURDEN OF SHOWING THAT THE PETIT JURY WHICH CONVICTED HIM WAS BIASED OR
PREJUDICED AGAINST HIM.  PP. 555-558. 

BECK V. WASHINGTON. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER DAVID D. BECK CONTENDS THAT HIS CONVICTION OF GRAND
LARCENY IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING
COUNTY IS INVALID UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF
THE FOURTEENTH AMENDMENT.  THIS CONTENTION IS BASED PRIMARILY ON WHAT
IS CHARACTERIZED AS VOLUMINOUS AND CONTINUOUS ADVERSE PUBLICITY
CIRCULATED BY NEWS MEDIA IN THE VICINITY OF SEATTLE, WASHINGTON, WHERE
HE WAS INDICTED AND TRIED.  SPECIFICALLY HE CLAIMS, INTER ALIA, THAT
THE GRAND JURY WAS UNFAIRLY IMPANELED AND INSTRUCTED, THAT THE
PROSECUTOR ACTED IMPROPERLY BEFORE THE GRAND JURY, AND THAT HIS MOTIONS
FOR A CHANGE OF VENUE AND FOR CONTINUANCES WERE ERRONEOUSLY DENIED. 
THE JUDGES OF THE SUPREME COURT OF WASHINGTON DIVIDED EQUALLY IN
REVIEW, 56 WASH. 2D 474, 349 P.2D 387, 353 P.2D 429, LEAVING
PETITIONER'S CONVICTION UNDISTURBED.  WE GRANTED CERTIORARI LIMITED TO
THE ABOVE CONTENTIONS, 365 U.S. 866, AND WE NOW AFFIRM THE CONVICTION. 

                  I. THE PUBLICITY OF WHICH PETITIONER COMPLAINS. 

IN ADDITION TO CHALLENGES TO THE GRAND AND PETIT JURIES, PETITIONER
PRIOR TO THE SELECTION OF THE PETIT JURY MADE FIVE MOTIONS ON THE
GROUND OF BIAS AND PREJUDICE ARISING FROM THE PUBLICITY, VIZ., ONE TO
QUASH THE INDICTMENT, THREE FOR CONTINUANCES RANGING FROM ONE MONTH TO
AN INDEFINITE PERIOD, AND ONE FOR A CHANGE OF VENUE TO SNOHOMISH OR
WHATCOM COUNTY.  PETITIONER'S COUNSEL SUPPORTED HIS FACTUAL CONTENTIONS
IN REGARD TO THESE VARIOUS MOTIONS BY HIS PERSONAL AFFIDAVITS AS WELL
AS BY PHOTOSTATS OF STORIES APPEARING IN LOCAL NEWSPAPERS AND NATIONAL
MAGAZINES.  WE SHALL NOW SUMMARIZE THE HIGHLIGHTS OF THE PUBLICITY SET
FORTH BY THE PETITIONER IN HIS MOVING PAPERS AND EXHIBITS. 

THE SELECT COMMITTEE ON IMPROPER ACTIVITIES IN THE LABOR OR
MANAGEMENT FIELD OF THE UNITED STATES SENATE BEGAN ITS INVESTIGATION ON
FEBRUARY 26, 1957.  IN EARLY MARCH THE CHAIRMAN OF THE COMMITTEE
ANNOUNCED THAT THE COMMITTEE HAD "PRODUCED 'RATHER CONCLUSIVE' EVIDENCE
OF A TIE-UP BETWEEN WEST COAST TEAMSTERS AND UNDERWORLD BOSSES TO
MONOPOLIZE VICE IN PORTLAND, ORE."  THE ANNOUNCEMENT ALSO STATED THAT
"TEAMSTERS' PRESIDENT DAVE BECK AND BREWSTER (ALSO A TEAMSTER LEADER)
WILL BE SUMMONED FOR QUESTIONING ON A CHARGE THAT THEY SCHEMED TO
CONTROL OREGON'S LAW ENFORCEMENT MACHINERY FROM A LOCAL LEVEL ON UP TO
THE GOVERNOR'S CHAIR." 

ON MARCH 22 THE COMMITTEE WAS QUOTED IN THE NEWSPAPERS AS STATING
"$250,000 HAD BEEN TAKEN FROM TEAMSTER FUNDS  ...  AND USED FOR BECK'S
PERSONAL BENEFIT."  PETITIONER APPEARED BEFORE THE COMMITTEE ON MARCH
26, AND THE NEWSPAPERS REPORTED:  "BECK TAKES 5TH AMENDMENT PRESIDENT
OF TEAMSTERS 'VERY DEFINITELY' THINKS RECORDS MIGHT INCRIMINATE HIM." 
TELEVISION CAMERAS WERE PERMITTED AT THE HEARINGS.  ONE SEATTLE TV
STATION RAN AN 8 3/4-HOUR "LIVE" BROADCAST OF THE SESSION ON MARCH 27,
AND FILMS OF THIS SESSION WERE SHOWN BY VARIOUS TV STATIONS IN THE
SEATTLE-TACOMA AREA.   THE APRIL 12 ISSUE OF THE U.S. NEWS & WORLD
REPORT RAN A CAPTION: "TAKE A LOOK AROUND SEATTLE THESE DAYS, AND YOU
FIND WHAT A SENATE INQUIRY CAN DO TO A TOP LABOR LEADER IN HIS OWN HOME
TOWN."  ON APRIL 26 THE COUNTY PROSECUTOR ANNOUNCED THAT A SPECIAL
GRAND JURY WOULD BE IMPANELED IN SEATTLE "TO INVESTIGATE POSSIBLE
MISUSE OF TEAMSTERS UNION FUNDS BY INTERNATIONAL PRESIDENT DAVE BECK
...  ."  IT WAS LATER ANNOUNCED THAT FORMER MAYOR DEVIN OF SEATTLE WAS
TO BE APPOINTED CHIEF SPECIAL PROSECUTOR.  ON MAY 3 PETITIONER WAS
INDICTED BY A FEDERAL GRAND JURY AT TACOMA FOR INCOME TAX EVASION.  THE
ANNOUNCEMENT OF THIS ACTION WAS OF COURSE IN FRONT-PAGE HEADLINES. 
FIVE DAYS LATER THE PETITIONER WAS AGAIN CALLED AS A WITNESS BEFORE THE
COMMITTEE IN WASHINGTON.  NEWS STORIES ON HIS APPEARANCE CONCENTRATED
ON HIS PLEADING OF THE FIFTH AMENDMENT 60 TIMES DURING THE HEARINGS. 
OTHER STORIES EMANATING FROM THE COMMITTEE HEARINGS WERE FEATURED
INTERMITTENTLY, AND ON MAY 20, THE DAY OF THE CONVENING OF THE SPECIAL
GRAND JURY, THE CHAIRMAN OF THE SENATE COMMITTEE ANNOUNCED THAT "THE
COMMITTEE HAS NOT CONVICTED MR. BECK OF ANY CRIME, ALTHOUGH IT IS MY
BELIEF THAT HE HAS COMMITTED MANY CRIMINAL OFFENSES."  THE PUBLICITY
CONTINUED TO SOME DEGREE AFTER THE GRAND JURY HAD BEEN CONVENED AND
DURING THE THREE-WEEK PERIOD IN WHICH THE PROSECUTORS WERE GATHERING UP
DOCUMENTARY EVIDENCE THROUGH THE USE OF GRAND JURY SUBPOENAS.  AMONG
OTHER STORIES THAT APPEARED WAS ONE OF JUNE 4 STATING THAT AT THE
COMMITTEE HEARINGS "BECK, JR., WHO EVEN REFUSED TO SAY WHETHER HE KNEW
HIS FATHER, TOOK SHELTER BEHIND THE FIFTH AMENDMENT 130 TIMES,
FOLLOWING THE EXAMPLE OF BECK, SR., WHO REFUSED TO ANSWER 210 TIMES IN
THREE APPEARANCES BEFORE THE COMMITTEE."  THE INDICTMENT IN THIS CASE
WAS RETURNED BY THE SPECIAL GRAND JURY ON JULY 12 AND OF COURSE
RECEIVED BANNER HEADLINES.   INTERMITTENT PUBLICITY CONTINUED, SOME
FROM WASHINGTON, D.C., UNTIL AUGUST 28 WHEN A FEDERAL GRAND JURY
INDICTED PETITIONER AND OTHERS ON ADDITIONAL INCOME TAX EVASION
COUNTS.  THE CO-CONSPIRATORS NAMED IN THIS LATTER INDICTMENT WERE THEN
CALLED BEFORE THE COMMITTEE IN WASHINGTON, AND THESE HEARINGS, WHICH
WERE HELD ON NOVEMBER 5, BROUGHT ON ADDITIONAL PUBLICITY.  ON NOVEMBER
12 DAVE BECK, JR., WENT TO TRIAL ON OTHER LARCENY CHARGES AND WAS
CONVICTED ON NOVEMBER 23, A SATURDAY.  THE STATE PAPERS GAVE THAT EVENT
CONSIDERABLE COVERAGE.  THE TRIAL OF PETITIONER IN THIS CASE BEGAN ON
DECEMBER 2 AND CONTINUED UNTIL HIS CONVICTION ON DECEMBER 14. 

               II.  THE OBJECTIONS TO THE GRAND JURY PROCEEDINGS. 

EVER SINCE HURTADO V. CALIFORNIA, 110 U.S. 516 (1884), THIS COURT HAS
CONSISTENTLY HELD THAT THERE IS NO FEDERAL CONSTITUTIONAL IMPEDIMENT TO
DISPENSING ENTIRELY WITH THE GRAND JURY IN STATE PROSECUTIONS.  THE
STATE OF WASHINGTON ABANDONED ITS MANDATORY GRAND JURY PRACTICE SOME 50
YEARS AGO.  (FN1)  SINCE THAT TIME PROSECUTIONS HAVE BEEN INSTITUTED ON
INFORMATIONS FILED BY THE PROSECUTOR, ON MANY OCCASIONS WITHOUT EVEN A
PRIOR JUDICIAL DETERMINATION OF "PROBABLE CAUSE" - A PROCEDURE WHICH
HAS LIKEWISE HAD APPROVAL HERE IN SUCH CASES AS OCAMPO V. UNITED
STATES, 234 U.S. 91 (1914), AND LEM WOON V. OREGON, 229 U.S. 586
(1913).  GRAND JURIES IN WASHINGTON ARE CONVENED ONLY ON SPECIAL
OCCASIONS AND FOR SPECIFIC PURPOSES.  THE GRAND JURY IN THIS CASE, THE
EIGHTH CALLED IN KING COUNTY IN 40 YEARS, WAS SUMMONED PRIMARILY TO
INVESTIGATE CIRCUMSTANCES WHICH HAD BEEN THE SUBJECT OF THE SENATE
COMMITTEE HEARINGS. 

IN HIS ATTEMPTS BEFORE TRIAL TO HAVE THE INDICTMENT SET ASIDE
PETITIONER DID NOT CONTEND THAT ANY PARTICULAR GRAND JUROR WAS
PREJUDICED OR BIASED.  RATHER, HE ASSERTED THAT THE JUDGE IMPANELING
THE GRAND JURY HAD BREACHED HIS DUTY TO ASCERTAIN ON VOIR DIRE WHETHER
ANY PROSPECTIVE JUROR HAD BEEN INFLUENCED BY THE ADVERSE PUBLICITY AND
THAT THIS ERROR HAD BEEN COMPOUNDED BY HIS FAILURE TO ADEQUATELY
INSTRUCT THE GRAND JURY CONCERNING BIAS AND PREJUDICE.  IT MAY BE THAT
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES THE STATE,
HAVING ONCE RESORTED TO A GRAND JURY PROCEDURE, TO FURNISH AN UNBIASED
GRAND JURY.  COMPARE LAWN V. UNITED STATES, 355 U.S. 339, 349-350
(1958); COSTELLO V. UNITED STATES, 350 U.S. 359, 363 (1956); HOFFMAN V.
UNITED STATES, 341 U.S. 479, 485 (1951).  BUT WE FIND THAT IT IS NOT
NECESSARY FOR US TO DETERMINE THIS QUESTION; FOR EVEN IF DUE PROCESS
WOULD REQUIRE A STATE TO FURNISH AN UNBIASED BODY ONCE IT RESORTED TO
GRAND JURY PROCEDURE - A QUESTION UPON WHICH WE DO NOT REMOTELY
INTIMATE ANY VIEW - WE HAVE CONCLUDED THAT WASHINGTON, SO FAR AS IS
SHOWN BY THE RECORD, DID SO IN THIS CASE. 

PETITIONER'S APPEARANCE BEFORE THE SENATE COMMITTEE WAS CURRENT NEWS
OF HIGH NATIONAL INTEREST AND QUITE NORMALLY WAS WIDELY PUBLICIZED
THROUGHOUT THE NATION, INCLUDING HIS HOME CITY OF SEATTLE AND THE STATE
OF WASHINGTON.  HIS ANSWERS TO AND CONDUCT BEFORE THE COMMITTEE
DISCLOSED THE POSSIBILITY THAT HE HAD COMMITTED LOCAL OFFENSES WITHIN
THE JURISDICTION OF KING COUNTY, WASHINGTON, AGAINST THE LAWS OF THAT
STATE.  IN THE LIGHT OF THOSE DISCLOSURES THE KING COUNTY AUTHORITIES
WERE DUTY-BOUND TO INVESTIGATE AND, IF THE STATE'S LAWS HAD BEEN
VIOLATED, TO PROSECUTE THE OFFENDERS.  IT APPEARS THAT DOCUMENTARY
EVIDENCE - IN THE HANDS OF PETITIONER'S UNION - WAS NECESSARY TO A
COMPLETE INVESTIGATION.  THE ONLY METHOD AVAILABLE TO SECURE SUCH
DOCUMENTS WAS BY GRAND JURY PROCESS, AND IT WAS DECIDED THEREFORE TO
IMPANEL A GRAND JURY.  THIS WASHINGTON WAS FREE TO DO. 

TWENTY-THREE PROSPECTIVE GRAND JURORS WERE CALLED.  THE TRIAL JUDGE
EXPLAINED, AS IS CUSTOMARY IN SUCH MATTERS, THAT THEY HAD BEEN CALLED
PRIMARILY TO INVESTIGATE POSSIBLE CRIMES COMMITTED IN KING COUNTY BY
OFFICERS OF THE TEAMSTERS UNION WHICH HAD BEEN THE SUBJECT OF THE
SENATE COMMITTEE HEARINGS.  IN IMPANELING THE GRAND JURY THE JUDGE,
AFTER DETERMINING THEIR STATUTORY QUALIFICATIONS, BUSINESSES, UNION
AFFILIATIONS AND THE LIKE, ASKED EACH OF THE PROSPECTIVE JURORS:  "IS
THERE ANYTHING ABOUT SITTING ON THIS GRAND JURY THAT MIGHT EMBARRASS
YOU AT ALL?"  IN ANSWER TO THIS OR THE QUESTION OF WHETHER THEY WERE
CONSCIOUS OF ANY PREJUDICE OR BIAS, WHICH WAS ASKED WHENEVER PREVIOUS
ANSWERS SUGGESTED A NEED FOR FURTHER INQUIRY, TWO ADMITTED THEY WERE
PREJUDICED BY THE PUBLICITY AND WERE EXCUSED.  ANOTHER STATED THAT
WHETHER HE WAS PREJUDICED WAS "PRETTY HARD TO ANSWER," AND HE, TOO, WAS
EXCUSED.  IN ADDITION THREE PERSONS WHO WERE OR HAD BEEN MEMBERS OF
UNIONS THAT WERE AFFILIATED WITH PETITIONER'S UNION WERE EXCUSED.  THE
REMAINING 17 WERE ACCEPTED AND SWORN AS GRAND JURORS AND AS A PART OF
THE OATH SWORE THAT THEY WOULD NOT "PRESENT ANY PERSON THROUGH ENVY,
HATRED OR MALICE."  AMONG THEM WERE A RETIRED CITY EMPLOYEE WHO HAD
BEEN A TEAMSTER, THE MANAGER OF A REAL ESTATE OFFICE, A BOOKKEEPER, AN
ENGINEER, AN AIRPLANE MANUFACTURER'S EMPLOYEE, A SEAMSTRESS WHOSE
HUSBAND WAS A UNION MEMBER, A MATERIAL INSPECTOR, A GRAVEL COMPANY
SUPERINTENDENT WHO WAS A FORMER TEAMSTERS UNION MEMBER, A CIVIL
ENGINEER WITH THE STATE DEPARTMENT OF FISHERIES, AND AN ENGINEER FOR A
GYROSCOPE MANUFACTURER. 

IN HIS CHARGE TO THE GRAND JURY THE TRIAL JUDGE EXPLAINED THAT ITS
"FUNCTION IS TO INQUIRE INTO THE COMMISSION OF CRIME IN THE COUNTY,"
THAT ORDINARILY THIS WAS DONE "BY THE REGULARLY ESTABLISHED LAW
ENFORCEMENT AGENCIES," BUT THAT THIS WAS IMPOSSIBLE HERE BECAUSE
FURTHER INVESTIGATION WAS NECESSARY REQUIRING THE ATTENDANCE OF
WITNESSES AND THE EXAMINATION OF BOOKS AND RECORDS WHICH A PROSECUTOR
HAD NO POWER TO COMPEL.  AS TO THE PURPOSE FOR WHICH IT WAS CALLED, HE
EXPLAINED THAT "DISCLOSURES" BY THE SENATE INVESTIGATING COMMITTEE
INDICATED "HUNDREDS OF THOUSANDS OF DOLLARS OF THE FUNDS" OF THE
TEAMSTERS UNION HAD BEEN "EMBEZZLED OR STOLEN" BY ITS OFFICERS.  HE
ALSO STATED THAT THE PRESIDENT OF THE TEAMSTERS HAD "PUBLICLY DECLARED"
THAT THE MONEY HE HAD RECEIVED WAS A LOAN.  "THIS PRESENTS A QUESTION
OF FACT," HE ADDED, "THE TRUTH OF WHICH IS FOR YOU TO ASCERTAIN." 
AFTER MENTIONING OTHER ACCUSATIONS HE CONCLUDED, "I URGE YOU TO DO ALL
THAT YOU CAN WITHIN PRACTICAL LIMITATIONS TO ASCERTAIN THE TRUTH OR
FALSITY OF THESE CHARGES  ...  .  YOU HAVE A MOST SERIOUS TASK TO
PERFORM  ...  .  IT IS A TREMENDOUS RESPONSIBILITY, AND I WISH YOU WELL
IN YOUR WORK." 

IT IS TRUE THAT THE JUDGE DID NOT ADMONISH THE GRAND JURORS TO
DISREGARD OR DISBELIEVE NEWS REPORTS AND PUBLICITY CONCERNING
PETITIONER.  NOR DID HE MENTION OR EXPLAIN THE EFFECT OF THE INVOCATION
OF THE FIFTH AMENDMENT BY PETITIONER BEFORE THE COMMITTEE OR INQUIRE AS
TO THE POLITICS OF ANY PANEL MEMBER.  DISCUSSION ALONG SUCH LINES MIGHT
WELL HAVE ADDED FUEL TO THE FLAMES WHICH SOME SEE HERE.  APPARENTLY
SENSING THIS DILEMMA THE JUDGE ADMONISHED THE GRAND JURY THAT ITS
FUNCTION WAS TO INQUIRE INTO THE COMMISSION OF CRIME IN THE COUNTY AND
THAT IT WAS TO CONDUCT AN EXAMINATION OF WITNESSES AS WELL AS BOOKS AND
RECORDS.  TWICE IN HIS SHORT STATEMENT HE SAID THAT IT WAS FOR THE
GRAND JURY TO DETERMINE WHETHER THE CHARGES WERE TRUE OR FALSE.  TAKING
THE INSTRUCTIONS AS A WHOLE, THEY MADE MANIFEST THAT THE JURORS WERE TO
SIFT THE CHARGES BY CAREFUL INVESTIGATION, INTERROGATION OF WITNESSES,
AND EXAMINATION OF RECORDS, NOT BY NEWSPAPER STORIES. 

IN THE LIGHT OF THESE FACTS AND ON THE ATTACK MADE WE CANNOT SAY THAT
THE GRAND JURY WAS BIASED.  IT WAS CHOSEN FROM THE REGULAR JURY LIST. 
SOME SIX MONTHS THEREAFTER A PETIT JURY TO TRY THIS CASE WAS SELECTED
FROM THE SAME COMMUNITY AND, AS WILL HEREAFTER BE SHOWN, WAS NOT FOUND
TO BE PREJUDICED.  INDEED, EVERY JUDGE WHO PASSED ON THE ISSUE IN THE
STATE'S COURTS, INCLUDING ITS HIGHEST COURT, HAS SO HELD.  A LOOK AT
THE GRAND JURY THROUGH THE RECORD REVEALS THAT IT WAS COMPOSED OF
PEOPLE FROM ALL WALKS OF LIFE, SOME OF WHOM WERE FORMER UNION MEMBERS. 
THE JUDGE IMMEDIATELY AND IN THE PRESENCE OF ALL OF THE PANEL
ELIMINATED SIX PROSPECTIVE GRAND JURORS WHEN INDICATIONS OF PREJUDICE
APPEARED.  NO GRAND JUROR PERSONALLY KNEW PETITIONER OR WAS SHOWN TO BE
ADVERSE TO THE INSTITUTIONS WITH WHICH PETITIONER IS GENERALLY
IDENTIFIED.  EVERY PERSON WHO WAS SELECTED ON THE GRAND JURY TOOK AN
OATH THAT HE WOULD NOT INDICT ANY PERSON THROUGH "HATRED OR MALICE." 
MOREOVER, THE GRAND JURY SAT FOR SIX WEEKS BEFORE ANY INDICTMENT WAS
RETURNED AGAINST PETITIONER.  THE RECORD ALSO INDICATES THAT IT HEARD
VOLUMINOUS TESTIMONY ON THE CHARGES THAT HAD BEEN MADE AGAINST
PETITIONER AND OTHERS AND THAT IT GAVE THE MATTER MOST METICULOUS AND
CAREFUL CONSIDERATION.  WE THEREFORE CONCLUDE THAT PETITIONER HAS
FAILED TO SHOW THAT THE BODY WHICH INDICTED HIM WAS BIASED OR
PREJUDICED AGAINST HIM.    IN ADDITION TO THE ABOVE DUE PROCESS
CONTENTION THREE EQUAL PROTECTION ARGUMENTS ARE MADE BY PETITIONER OR
SUGGESTED ON HIS BEHALF.  FIRST, PETITIONER ARGUES HE IS A MEMBER OF A
CLASS (TEAMSTERS) THAT WAS NOT ACCORDED EQUAL TREATMENT IN GRAND JURY
PROCEEDINGS.  THE CONTENTION IS BASED ON REFERENCES TO THE TEAMSTERS BY
THE JUDGE IMPANELING THE GRAND JURY AS HE CONDUCTED THE VOIR DIRE AND
EXPLAINED THE SCOPE OF THE INVESTIGATION.  THE COMPLETE ANSWER TO
PETITIONER'S ARGUMENT IS THAT REFERENCES TO THE TEAMSTERS WERE
NECESSARY IN THE VOIR DIRE TO ELIMINATE PERSONS WHO MIGHT BE PREJUDICED
FOR OR AGAINST PETITIONER AND IN THE INSTRUCTIONS TO EXPLAIN THE
PURPOSE AND SCOPE OF THIS SPECIAL BODY.  PETITIONER HAS TOTALLY FAILED
TO ESTABLISH THAT NON-TEAMSTERS WHO ARE MEMBERS OF GROUPS UNDER
INVESTIGATION ARE GIVEN ANY DIFFERENT TREATMENT. 

SECONDLY, IT IS SAID THAT THE WASHINGTON STATUTE PERMITTING PERSONS
IN CUSTODY TO CHALLENGE GRAND JURORS, REVISED CODE OF WASHINGTON SEC.
10.28.030, DENIES EQUAL PROTECTION TO PERSONS NOT IN CUSTODY WHO ARE
INVESTIGATED BY GRAND JURIES.  THIS POINT IS NOT PROPERLY BEFORE THIS
COURT.  ALTHOUGH BOTH OPINIONS OF THE WASHINGTON SUPREME COURT DISCUSS
THE INTERPRETATION OF SEC. 10.28,030, NEITHER CONSIDERED THAT QUESTION
IN LIGHT OF THE EQUAL PROTECTION ARGUMENT FOR THAT ARGUMENT WAS NEVER
PROPERLY PRESENTED TO THE COURT IN RELATION TO THIS STATUTE.  THE
WASHINGTON SUPREME COURT HAS UNFAILINGLY REFUSED TO CONSIDER
CONSTITUTIONAL ATTACKS UPON STATUTES NOT MADE IN THE TRIAL COURT, EVEN
WHERE THE CONSTITUTIONAL CLAIMS ARISE FROM THE TRIAL COURT'S
INTERPRETATION OF THE CHALLENGED STATUTE.  E.G., JOHNSON V. SEATTLE, 50
WASH. 2D 543, 313 P.2D 676 (1957).  (FN2)  PETITIONER'S FORMAL ATTACK
AT THE TRIAL COURT LEVEL DID NOT EVEN MENTION SEC. 10.28.030, MUCH LESS
ARGUE THAT A RESTRICTIVE INTERPRETATION WOULD BE UNCONSTITUTIONAL UNDER
THE EQUAL PROTECTION CLAUSE.  (FN3)  THAT THE PROSECUTION AND THE COURT
VIEWED PETITIONER AS OUTSIDE THE SCOPE OF SEC. 10.28.030 WAS BROUGHT
HOME TO HIM IN THE COURSE OF THE TRIAL COURT PROCEEDINGS ON HIS GRAND
JURY ATTACK.  BUT EVEN THEN PETITIONER DID NOT SUGGEST THAT
CONSTITUTIONAL CONSIDERATIONS MIGHT COMPEL A DIFFERENT RESULT.  THE
FAILURE TO INJECT THE EQUAL PROTECTION CONTENTION INTO THE CASE WAS
CARRIED FORWARD TO THE PROCEEDINGS BEFORE THE WASHINGTON SUPREME COURT
WHEN PETITIONER FAILED TO COMPLY WITH THAT COURT'S RULE PRESCRIBING THE
MANNER IN WHICH CONTENTIONS ARE TO BE BROUGHT TO ITS ATTENTION.  RULE
43 OF THE RULES ON APPEAL, REVISED CODE OF WASHINGTON, PROVIDES THAT
"NO ALLEGED ERROR OF THE SUPERIOR COURT WILL BE CONSIDERED BY THIS
COURT UNLESS THE SAME BE DEFINITELY POINTED OUT IN THE 'ASSIGNMENTS OF
ERROR' IN APPELLANT'S BRIEF."  MERE GENERALIZED ATTACKS UPON THE
VALIDITY OF THE HOLDING BELOW AS PETITIONER MADE IN HIS "ASSIGNMENTS OF
ERROR" (FN4) ARE NOT CONSIDERED BY REASON OF THIS RULE SUFFICIENT TO
INVOKE REVIEW OF THE UNDERLYING CONTENTIONS.  SEE, E.G., WASHINGTON V.
TANZYMORE, 54 WASH. 2D 290, 292, 340 P.2D 178, 179 (1959); FOWLES V.
SWEENEY, 41 WASH. 2D 182, 188, 248 P.2D 400, 403, (1952).  NOR WILL THE
WASHINGTON SUPREME COURT SEARCH THROUGH THE BRIEF PROPER TO FIND
SPECIFIC CONTENTIONS WHICH SHOULD HAVE BEEN LISTED WITHIN THE
"ASSIGNMENTS OF ERROR."  SEE WASHINGTON EX REL. LINDEN V. BUNGE, 192
WASH. 245, 251, 73 P.2D 516, 518-519 (1937).  MOREOVER, THE FAILURE OF
PETITIONER TO ARGUE THE CONSTITUTIONAL CONTENTION IN HIS BRIEF, AS
OPPOSED TO MERELY SETTING IT FORTH AS HE DID IN ONE SENTENCE OF HIS 125
PAGE BRIEF, IS CONSIDERED BY THE WASHINGTON SUPREME COURT TO BE AN
ABANDONMENT OR WAIVER OF SUCH CONTENTION.  E.G., MARTIN V. J.C. PENNEY
CO., 50 WASH. 2D 560, 565, 313 P.2D 689, 693 (1957); WASHINGTON V.
WILLIAMS, 49 WASH. 2D 354, 356-357, 301 P.2D 769, 770 (1956).  NOR WAS
THE EQUAL PROTECTION CONTENTION MADE AT ALL IN THE PETITIONS FOR
REHEARING FILED AFTER THE SUPREME COURT HAD AGREED WITH THE LOWER
COURT'S INTERPRETATION OF THE STATUTE TO EXCLUDE PETITIONER.  ASSUMING
ARGUENDO THAT FOR THE PURPOSES OF OUR JURISDICTION THE QUESTION WOULD
HAVE BEEN TIMELY IF RAISED IN A PETITION FOR REHEARING, NOT HAVING BEEN
RAISED THERE OR ELSEWHERE OR ACTUALLY DECIDED BY THE WASHINGTON SUPREME
COURT, THE ARGUMENT CANNOT BE ENTERTAINED HERE UNDER AN UNBROKEN LINE
OF PRECEDENT.  E.G., FERGUSON V. GEORGIA, 365 U.S. 570, 572 (1961);
CAPITAL CITY DAIRY CO. V. OHIO, 183 U.S. 238, 248 (1902).  FURTHERMORE,
IT WAS NOT WITHIN THE SCOPE OF THE QUESTIONS TO WHICH THE WRIT OF
CERTIORARI IN THIS CASE WAS SPECIFICALLY LIMITED, 365 U.S. 866, AND FOR
THIS ADDITIONAL REASON CANNOT NOW BE PRESENTED. 

THE FINAL ARGUMENT UNDER THE EQUAL PROTECTION CLAUSE IS THAT
WASHINGTON HAS SINGLED OUT PETITIONER FOR SPECIAL TREATMENT BY DENYING
HIM THE PROCEDURAL SAFEGUARDS THE LAW AFFORDS OTHERS TO INSURE AN
UNBIASED GRAND JURY.  BUT THIS REASONING PROCEEDS ON THE WHOLLY
UNSUPPORTED ASSUMPTION THAT SUCH PROCEDURES HAVE BEEN REQUIRED IN
WASHINGTON IN ALL OTHER CASES.  (FN5)  MOREOVER, IT IS CONTRARY TO THE
UNDERLYING FINDING OF THE SUPERIOR COURT, IN DENYING THE MOTION TO
DISMISS THE INDICTMENT, THAT THE GRAND JURORS WERE LAWFULLY SELECTED
AND INSTRUCTED.  AND EVEN IF WE WERE TO ASSUME THAT WASHINGTON LAW
REQUIRES SUCH PROCEDURAL SAFEGUARDS, THE PETITIONER'S ARGUMENT HERE
COMES DOWN TO A CONTENTION THAT WASHINGTON LAW WAS MISAPPLIED.  SUCH
MISAPPLICATION CANNOT BE SHOWN TO BE AN INVIDIOUS DISCRIMINATION.  WE
HAVE SAID TIME AND AGAIN THAT THE FOURTEENTH AMENDMENT DOES NOT "ASSURE
UNIFORMITY OF JUDICIAL DECISIONS  ...  OR IMMUNITY FROM JUDICIAL ERROR
...  ."  MILWAUKEE ELECTRIC RY. & LIGHT CO. V. WISCONSIN EX REL.
MILWAUKEE, 252 U.S. 100, 106 (1920).  WERE IT OTHERWISE, EVERY ALLEGED
MISAPPLICATION OF STATE LAW WOULD CONSTITUTE A FEDERAL CONSTITUTIONAL
QUESTION.  FINALLY, WERE TO TO VACATE THIS CONVICTION BECAUSE OF A
FAILURE TO FOLLOW CERTAIN PROCEDURES ALTHOUGH IT HAS NOT BEEN SHOWN
THAT THEIR ULTIMATE END - A FAIR GRAND JURY PROCEEDING - WAS NOT
OBTAINED, WE WOULD BE EXALTING FORM OVER SUBSTANCE CONTRARY TO OUR
PREVIOUS APPLICATION OF THE EQUAL PROTECTION CLAUSE, E.G., GRAHAM V.
WEST VIRGINIA, 224 U.S. 616, 630 (1912). 

PETITIONER ALSO CONTENDS THAT A WITNESS BEFORE THE GRAND JURY WAS
IMPROPERLY INTERROGATED IN A MANNER WHICH PREJUDICED HAS CASE BEFORE
THAT BODY.  IT APPEARS THAT AN EMPLOYEE OF PETITIONER'S UNION WAS
CALLED BEFORE THE GRAND JURY TO TESTIFY IN REFERENCE TO ACTIVITIES
WITHIN HIS EMPLOYMENT.  DURING HIS FIRST APPEARANCE HE MADE STATEMENTS
WHICH HE SUBSEQUENTLY CHANGED ON A VOLUNTARY REAPPEARANCE BEFORE THE
GRAND JURY SOME TWO DAYS BEFORE THE INDICTMENT WAS RETURNED.  ON THE
SECOND APPEARANCE THE PROSECUTOR ATTACKED THE WITNESS' CHANGED STORY AS
INCREDIBLE AND WARNED HIM THAT HE WAS UNDER OATH, THAT HE MIGHT BE
PROSECUTED FOR PERJURY, AND THAT THERE WAS NO OCCASION FOR HIM TO GO TO
JAIL FOR PETITIONER.  THE RECORD INDICATES THAT THE PROSECUTOR BECAME
INCENSED OVER THE WITNESS' NEW STORY; AND THOUGH SOME OF HIS THREATS
WERE OUT OF BOUNDS, IT APPEARS THAT THEY HAD NO EFFECT UPON THE WITNESS
WHATSOEVER FOR HE STUCK TO HIS STORY.  WE CAN FIND NO IRREGULARITY OF
CONSTITUTIONAL PROPORTIONS, AND WE THEREFORE REJECT THIS CONTENTION. 

                  III.  THE OBJECTIONS AS TO THE PETIT JURY. 

AS IN HIS GRAND JURY ATTACK, PETITIONER MAKES NO CLAIM THAT ANY
PARTICULAR PETIT JUROR WAS BIASED.   INSTEAD, HE STATES THE PUBLICITY
WHICH PREVENTED THE SELECTION OF A FAIR GRAND JURY ALSO PRECLUDED A
FAIR PETIT JURY.  HE ARGUES THAT SUCH A STRONG CASE OF ADVERSE
PUBLICITY HAS BEEN PROVED THAT ANY JURY SELECTED IN SEATTLE AT THE TIME
HE WAS TRIED MUST BE HELD TO BE PRESUMPTIVELY BIASED AND THAT THE TRIAL
COURT'S ADVERSE RULINGS ON HIS MOTIONS FOR A CHANGE OF VENUE AND FOR
CONTINUANCES WERE THEREFORE IN ERROR.  OF COURSE THERE COULD BE NO
CONSTITUTIONAL INFIRMITY IN THESE RULINGS IF PETITIONER ACTUALLY
RECEIVED A TRIAL BY AN IMPARTIAL JURY.  HENCE, OUR INQUIRY IS ADDRESSED
TO THAT SUBJECT. 

PETITIONER'S TRIAL BEGAN EARLY IN DECEMBER.  THIS WAS NINE AND ONE
HALF MONTHS AFTER HE WAS FIRST CALLED BEFORE THE SENATE COMMITTEE AND
ALMOST FIVE MONTHS AFTER HIS INDICTMENT.  ALTHOUGH THERE WAS SOME
ADVERSE PUBLICITY DURING THE LATTER PERIOD WHICH STEMMED FROM THE
SECOND TAX INDICTMENT AND LATER SENATE HEARINGS AS WELL AS FROM THE
TRIAL OF PETITIONER'S SON, IT WAS NEITHER INTENSIVE NOR EXTENSIVE.  THE
NEWS VALUE OF THE ORIGINAL "DISCLOSURES" WAS DIMINISHED, AND THE ITEMS
WERE OFTEN RELEGATED TO THE INNER PAGES.  EVEN THE OCCASIONAL FRONT
PAGE ITEMS WERE STRAIGHT NEWS STORIES RATHER THAN INVIDIOUS ARTICLES
WHICH WOULD TEND TO AROUSE ILL WILL AND VINDICTIVENESS.  IF THERE WAS A
CAMPAIGN AGAINST HIM AS PETITIONER INFERS, IT WAS SIDETRACKED BY THE
APPEARANCE OF OTHER "LABOR BOSSES" ON THE SCENE WHO SHARED THE
SPOTLIGHT. 

THE PROCESS OF SELECTING A JURY BEGAN WITH THE EXCLUSION FROM THE
PANEL OF ALL PERSONS SUMMONED AS PROSPECTIVE JURORS IN THE NOVEMBER 12
TRIAL OF DAVE BECK, JR. IN ADDITION, ALL PERSONS WERE EXCUSED WHO WERE
IN THE COURTROOM AT ANY TIME DURING THE TRIAL OF THAT CASE.  NEXT, THE
MEMBERS WERE EXAMINED BY THE COURT AND COUNSEL AT LENGTH.  OF THE 52 SO
EXAMINED, ONLY EIGHT ADMITTED BIAS OR A PREFORMED OPINION AS TO
PETITIONER'S GUILT AND SIX OTHERS SUGGESTED THEY MIGHT BE BIASED OR
MIGHT HAVE FORMED AN OPINION - ALL OF WHOM WERE EXCUSED.  EVERY JUROR
CHALLENGED FOR CAUSE BY PETITIONER'S COUNSEL WAS EXCUSED; IN ADDITION
PETITIONER WAS GIVEN SIX PEREMPTORY CHALLENGES, ALL OF WHICH WERE
EXERCISED.  ALTHOUGH MOST OF THE PERSONS THUS SELECTED FOR THE TRIAL
JURY HAD BEEN EXPOSED TO SOME OF THE PUBLICITY RELATED ABOVE, EACH
INDICATED THAT HE WAS NOT BIASED, THAT HE HAD FORMED NO OPINION AS TO
PETITIONER'S GUILT WHICH WOULD REQUIRE EVIDENCE TO REMOVE, AND THAT HE
WOULD ENTER THE TRIAL WITH AN OPEN MIND DISREGARDING ANYTHING HE HAD
READ ON THE CASE. 

A STUDY OF THE VOIR DIRE INDICATES CLEARLY THAT EACH JUROR'S
QUALIFICATIONS AS TO IMPARTIALITY FAR EXCEEDED THE MINIMUM STANDARDS
THIS COURT ESTABLISHED IN ITS EARLIER CASES AS WELL AS IN IRVIN V.
DOWD, 366 U.S. 717 (1961), ON WHICH PETITIONER DEPENDS.  THERE WE
STATED: 

"TO HOLD THAT THE MERE EXISTENCE OF ANY PRECONCEIVED NOTION AS TO THE
GUILT OR INNOCENCE OF AN ACCUSED, WITHOUT MORE, IS SUFFICIENT TO REBUT
THE PRESUMPTION OF A PROSPECTIVE JUROR'S IMPARTIALITY WOULD BE TO
ESTABLISH AN IMPOSSIBLE STANDARD.  IT IS SUFFICIENT IF THE JUROR CAN
LAY ASIDE HIS IMPRESSION OR OPINION AND RENDER A VERDICT BASED ON THE
EVIDENCE PRESENTED IN COURT."  ID., AT 723. 

WE CANNOT SAY THE PRETRIAL PUBLICITY WAS SO INTENSIVE AND EXTENSIVE
OR THE EXAMINATION OF THE ENTIRE PANEL REVEALED SUCH PREJUDICE THAT A
COURT COULD NOT BELIEVE THE ANSWERS OF THE JURORS AND WOULD BE
COMPELLED TO FIND BIAS OR PREFORMED OPINION AS A MATTER OF LAW. 
COMPARE IRVIN V. DOWD, SUPRA, AT 723-728, WHERE SENSATIONAL PUBLICITY
ADVERSE TO THE ACCUSED PERMEATED THE SMALL TOWN IN WHICH HE WAS TRIED,
THE VOIR DIRE EXAMINATION INDICATED THAT 90% OF 370 PROSPECTIVE JURORS
AND TWO-THIRDS OF THOSE SEATED ON THE JURY HAD AN OPINION AS TO GUILT,
AND THE ACCUSED UNSUCCESSFULLY CHALLENGED FOR CAUSE SEVERAL PERSONS
ACCEPTED ON THE JURY.  THE FACT THAT PETITIONER DID NOT CHALLENGE FOR
CAUSE ANY OF THE JURORS SO SELECTED IS STRONG EVIDENCE THAT HE WAS
CONVINCED THE JURORS WERE NOT BIASED AND HAD NOT FORMED ANY OPINIONS AS
TO HIS GUILT.  IN ADDITION, WE NOTE THAT WHILE THE WASHINGTON SUPREME
COURT WAS DIVIDED ON THE QUESTION OF THE RIGHT OF AN ACCUSED TO AN
IMPARTIAL GRAND JURY, THE DENIAL OF THE PETITIONER'S MOTIONS BASED ON
THE BIAS AND PREJUDICE OF THE PETIT JURY DID NOT RAISE A SINGLE
DISSENTING VOICE. 

"WHILE THIS COURT STANDS READY TO CORRECT VIOLATIONS OF
CONSTITUTIONAL RIGHTS, IT ALSO HOLDS THAT 'IT IS NOT ASKING TOO MUCH
THAT THE BURDEN OF SHOWING ESSENTIAL UNFAIRNESS BE SUSTAINED BY HIM WHO
CLAIMS SUCH INJUSTICE AND SEEKS TO HAVE THE RESULT SET ASIDE, AND THAT
IT BE SUSTAINED NOT AS A MATTER OF SPECULATION BUT AS A DEMONSTRABLE
REALITY,'"  UNITED STATES EX REL. DARCY V. HANDY, 351 U.S. 454, 462
(1956).  THIS BURDEN HAS NOT BEEN MET.  AFFIRMED. 

FN1  WASHINGTON LAWS 1909, C. 87. 

FN2  WASHINGTON V. GRIFFITH, 52 WASH. 2D 721, 328 P.2D 897 (1958),
DOES NOT DETRACT FROM THIS PRINCIPLE.  IN GRIFFITH THE WASHINGTON
SUPREME COURT, WHILE RECOGNIZING THE GENERAL RULE THAT CONSTITUTIONAL
ARGUMENTS CANNOT BE PRESENTED FOR THE FIRST TIME IN THE SUPREME COURT,
FOUND AN EXCEPTION TO THIS GENERAL RULE WHEN THE ACCUSED IN A CAPITAL
CASE ASSERTS HIS COURT-APPOINTED ATTORNEY INCOMPETENTLY CONDUCTED HIS
TRIAL.  THE REASONS FOR SUCH AN EXCEPTION ARE OBVIOUS, AND IT IS JUST
AS OBVIOUS THAT SUCH REASONS ARE NOT APPLICABLE TO THE PRESENT CASE. 

FN3  PETITIONER MADE THE FOLLOWING ATTACKS UPON THE GRAND JURY:

"MOTION TO SET ASIDE AND DISMISS INDICTMENT - FILED

                       OCTOBER 18, 1957 

"COMES NOW DAVID D. BECK, ALSO KNOWN AS DAVE BECK, DEFENDANT HEREIN,
BY AND THROUGH HIS ATTORNEYS OF RECORD HEREIN, AND RESPECTFULLY MOVES
TO SET ASIDE AND DISMISS THE INDICTMENT ON THE FOLLOWING GROUNDS: 

"1.  THAT THE GRAND JURORS WERE NOT SELECTED, DRAWN, SUMMONED,
IMPANELED OR SWORN AS PRESCRIBED BY LAW.    "2.  THAT UNAUTHORIZED
PERSONS, NOT REQUIRED OR PERMITTED BY LAW TO ATTEND SESSIONS OF THE
GRAND JURY WERE PRESENT BEFORE THE GRAND JURY DURING THE INVESTIGATION
OF THE ALLEGATIONS OF THE INDICTMENT. 

"3.  THAT PERSONS OTHER THAN THE GRAND JURORS WERE PRESENT BEFORE THE
GRAND JURY DURING CONSIDERATION OF THE MATTERS AND THINGS CHARGED IN
THE INDICTMENT. 

"4.  THAT THE PROCEEDINGS OF THE GRAND JURY WHICH RETURNED THE
INDICTMENT WERE CONDUCTED IN AN ATMOSPHERE OF EXTREME BIAS, PREJUDICE
AND HOSTILITY TOWARD THIS DEFENDANT, AND THAT SAID ATMOSPHERE WAS IN
PART CREATED BY THE PROSECUTING ATTORNEY AND BY PERSONS ACTING OR
CLAIMING TO ACT UPON HIS BEHALF; ALL OF WHICH WAS PREJUDICIAL TO THIS
DEFENDANT AND WHICH HAS DENIED AND WILL CONTINUE TO DENY HIM RIGHTS
GUARANTEED UNDER THE 14TH AMENDMENT OF THE CONSTITUTION OF THE UNITED
STATES, AMENDMENT 10 OF THE CONSTITUTION OF THE STATE OF WASHINGTON,
AND ARTICLE I, SEC. 3 OF THE CONSTITUTION OF THE STATE OF WASHINGTON. 

"5.  THAT BY REASON OF EXTREME BIAS, PREJUDICE AND HOSTILITY TOWARD
THE DEFENDANT HEREIN, CONTRIBUTED TO IN PART BY THE CONDUCT OF THE
PROSECUTING ATTORNEY AND PERSONS ACTING OR CLAIMING TO ACT UPON HIS
BEHALF, IT IS AND WILL BE IMPOSSIBLE FOR THE DEFENDANT TO SECURE AND
OBTAIN A FAIR AND IMPARTIAL TRIAL IN THE JURISDICTION OF THIS COURT,
ALL OF WHICH IS AND WILL BE PREJUDICIAL TO THIS DEFENDANT AND WHICH
WILL CONSTITUTE A DENIAL OF HIS RIGHTS GUARANTEED UNDER THE 14TH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES, AMENDMENT 10 OF THE
CONSTITUTION OF THE STATE OF WASHINGTON, AND ARTICLE I, SEC. 3 OF THE
CONSTITUTION OF THE STATE OF WASHINGTON. 

"6.  THAT THE COURT ERRED IN ITS INSTRUCTIONS AND DIRECTIONS TO THE
GRAND JURY TO THE PREJUDICE OF THE DEFENDANT AND IN DENIAL OF RIGHTS
GUARANTEED UNDER THE 14TH AMENDMENT OF THE CONSTITUTION OF THE UNITED
STATES, AMENDMENT 10 OF THE CONSTITUTION OF THE STATE OF WASHINGTON,
AND ARTICLE I, SEC. 3 OF THE CONSTITUTION OF THE STATE OF WASHINGTON. 

"7.  THAT THERE WERE EXCLUDED FROM THE GRAND JURY PERSONS OF
DEFENDANT'S FINANCIAL, SOCIAL AND BUSINESS CLASS AND OCCUPATION,
CONTRARY TO THE 14TH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES, AND CONTRARY TO ARTICLE I, SEC. 3 OF THE CONSTITUTION OF THE
STATE OF WASHINGTON. 

"8.  THAT THE DEFENDANT HEREIN WAS REQUIRED AND COMPELLED TO GIVE
EVIDENCE AGAINST HIMSELF, CONTRARY TO THE PROVISIONS OF ARTICLE I, SEC.
9 OF THE CONSTITUTION OF THE STATE OF WASHINGTON AND THE 5TH AND 14TH
AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES. 

"9.  THAT THE GRAND JURY COMMITTED MISCONDUCT IN VIOLATION OF RCW
10.28.085 AND RCW 10.28.100. 

"THIS MOTION IS BASED UPON ALL OF THE FILES, RECORDS, TRANSCRIPTS,
EXHIBITS AND AFFIDAVITS HEREIN." 

               "CHALLENGE TO GRAND JURY - FILED OCTOBER 18, 1957 

"COMES NOW THE DEFENDANT HEREIN AND CHALLENGES EACH AND ALL OF THE
MEMBERS OF THE GRAND JURY WHICH RETURNED THE INDICTMENT HEREIN FOR THE
REASON AND ON THE GROUNDS THAT THE COURT WHICH IMPANELED SAID GRAND
JURY MADE NO DETERMINATION AS TO WHETHER A STATE OF MIND EXISTED ON THE
PART OF ANY JUROR SUCH AS WOULD RENDER HIM UNABLE TO ACT IMPARTIALLY
AND WITHOUT PREJUDICE." 

FN4  PETITIONER'S 29 "ASSIGNMENTS OF ERROR" INCLUDED THE FOLLOWING: 

"6.  THE LOWER COURT ERRED IN DENYING APPELLANT'S MOTION TO SET ASIDE
AND DISMISS THE INDICTMENT. 

"7.  THE LOWER COURT ERRED IN DENYING APPELLANT'S CHALLENGE TO GRAND
JURY. 

     *         *         *         *         * 

"25.  THE COURT DENIED APPELLANT'S RIGHTS TO A FAIR AND IMPARTIAL
GRAND JURY." 

HOWEVER, WHEN PETITIONER DID ATTEMPT TO CONFORM TO THE RULE OF THE
WASHINGTON SUPREME COURT BY POINTING OUT "DEFINITELY" THE ERRORS
COMMITTED IN DENYING HIS ATTACKS UPON THE GRAND JURY, HE LIMITED THE
REVIEW TO VIOLATIONS OF THE DUE PROCESS CLAUSE AS SET OUT BELOW. 

"29.  THE APPELLANT WAS DENIED DUE PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OF
AMERICA AND UNDER THE TENTH AMENDMENT OF THE CONSTITUTION OF THE STATE
OF WASHINGTON, AS FOLLOWS: 

"A.  BY DENYING APPELLANT HIS RIGHT TO CHALLENGE THE GRAND JURY OR TO
DISMISS THE INDICTMENT FOR BIAS AND PREJUDICE OF THE GRAND JURY
MEMBERS. 

"B.  BY DENYING HIS MOTIONS FOR CONTINUANCE AND CHANGE OF VENUE
THEREBY FORCING APPELLANT TO GO TO TRIAL IN AN ATMOSPHERE OF EXTREME
HOSTILITY AND PREJUDICE. 

"C.  BY MISCONDUCT OF THE PROSECUTOR: 

"1.  DURING AND AFTER THE GRAND JURY PROCEEDINGS, AND: 

"2.  AT THE TRIAL. 

"D.  BY DENYING APPELLANT AN OPPORTUNITY TO EXAMINE OR INSPECT
TRANSCRIPTS OF PROCEEDINGS BEFORE THE GRAND JURY AFTER THE STATE HAD
INTRODUCED EVIDENCE OF PARTICULAR STATEMENTS MADE BEFORE THE GRAND JURY
BY CROSS-EXAMINATION OR SECONDARY EVIDENCE. 

"E.  THE MEANS USED TO ACCUSE AND CONVICT APPELLANT WERE NOT
COMPATIBLE WITH REASONABLE STANDARDS OF FAIR PLAY." 

FN5  THERE ARE NO REPORTED WASHINGTON CASES SO HOLDING.  THE TWO
CASES ON WHICH THIS CLAIM IS PREDICATED, WASHINGTON V. GUTHRIE, 185
WASH. 464, 56 P.2D 160 (1936), AND WASHINGTON EX REL.  MURPHY V.
SUPERIOR COURT, 82 WASH. 284, 144 P. 32 (1914), WERE CONCERNED ONLY
WITH WHETHER THE MEMBERS OF THE GRAND JURY HAD BEEN SELECTED BY CHANCE
AS THE LAW REQUIRES.  QUOTATIONS FROM THESE CASES WHEN READ IN CONTEXT
CLEARLY HAVE REFERENCE ONLY TO THE DESIRABILITY OF SELECTING GRAND
JURORS BY CHANCE.   PETITIONER IN HIS REHEARING PETITION BEFORE THE
WASHINGTON SUPREME COURT QUOTED FROM TWO UNNAMED, UNREPORTED WASHINGTON
GRAND JURY PROCEEDINGS IN WHICH SOME PROSPECTIVE JURORS WERE QUESTIONED
AS TO BIAS.  EVEN IF IT WERE CLEAR THAT ALL THE JURORS IN THOSE CASES
WERE SO QUESTIONED (WHICH IT IS NOT), SUCH ISOLATED, UNREVIEWABLE
INSTANCES WOULD NOT ESTABLISH THAT WASHINGTON LAW REQUIRES THE CLAIMED
PROCEDURES. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE CONCURS, DISSENTING. 

I DISSENT FROM THE COURT'S HOLDING BECAUSE I THINK THAT THE FAILURE
OF THE WASHINGTON COURTS TO FOLLOW THEIR OWN STATE LAW BY TAKING
AFFIRMATIVE ACTION TO PROTECT THE PETITIONER BECK FROM BEING INDICTED
BY A BIASED AND PREJUDICED GRAND JURY WAS A DENIAL TO HIM OF THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT. 

SINCE 1854, WHEN WASHINGTON WAS A TERRITORY, THAT STATE HAS HAD A
STATUTE COMPREHENSIVELY GOVERNING THE USE OF GRAND JURIES IN CRIMINAL
TRIALS WHICH PROVIDES IN PART: 

"CHALLENGES TO INDIVIDUAL GRAND JURORS MAY BE MADE BY  ...  ANY
PERSON IN CUSTODY OR HELD TO ANSWER FOR AN OFFENSE FOR REASON OF WANT
OF QUALIFICATION TO SIT AS SUCH JUROR; AND WHEN, IN THE OPINION OF THE
COURT, A STATE OF MIND EXISTS IN THE JUROR, SUCH AS WOULD RENDER HIM
UNABLE TO ACT IMPARTIALLY AND WITHOUT PREJUDICE."  (FN1) 

IN STATE EX REL. MURPHY V. SUPERIOR COURT, (FN2) THE WASHINGTON
SUPREME COURT HELD IN CONSTRUING THIS STATUTE THAT IN ORDER TO PRESERVE
THE RIGHT OF DEFENDANTS TO FAIR AND IMPARTIAL GRAND JURORS, WASHINGTON
STATE JUDGES MUST SELECT GRAND JURORS BY CHANCE, EXPLAINING: 

"THAT IT WAS THE POLICY OF THE LEGISLATURE TO PRESERVE THE RIGHT TO
HAVE AN UNBIASED AND UNPREJUDICED JURY AND GRAND JURY, AND THAT NO
SUSPICION SHOULD ATTACH TO THE MANNER OF ITS SELECTION IN ALL CASES,
CANNOT BE QUESTIONED." 

SOME YEARS LATER IN STATE V. GUTHRIE (FN3) THE WASHINGTON SUPREME
COURT HELD THAT IT WAS NOT ONLY WITHIN THE POWER OF WASHINGTON STATE
JUDGES BUT IT WAS ALSO THEIR DUTY TO INSURE UNBIASED GRAND JURIES, EVEN
IF SO DOING MEANT CHANGING THE COMPOSITION OF THE GRAND JURIES SELECTED
BY THE RULES OF CHANCE.  THAT COURT IN THIS LATTER CASE REITERATED THE
STATUTE'S POLICY TO PRESERVE IMPARTIAL GRAND JURIES AND MADE IT CRYSTAL
CLEAR THAT JURIES BIASED BECAUSE OF JUDICIAL INACTION ARE AS OFFENSIVE
TO THE POLICY OF THE WASHINGTON STATUTE AS JURIES BIASED BECAUSE OF
DELIBERATE JUDICIAL SELECTION: 

"WHILE THIS SECTION MAY BE SAID TO RELATE TO CHALLENGES MADE BY
INTERESTED PERSONS, IT IS NOT TO BE CONSTRUED AS DENYING TO THE COURT
THE RIGHT, UPON ITS OWN MOTION, TO EXCUSE A JUROR DEEMED TO BE
DISQUALIFIED OR INCOMPETENT.  TO DENY THIS RIGHT WOULD BE OUT OF
HARMONY WITH THE POLICY OF THE LAW, WHICH CHARGES THE COURT WITH THE
RESPONSIBILITY OF INSURING THAT QUALIFIED AND IMPARTIAL GRAND JURORS
ARE SECURED." 

THAT THIS STATE POLICY FOR IMPARTIAL GRAND JURIES HAS BEEN GENERALLY
ACCEPTED AS THE SETTLED LAW OF WASHINGTON IS DEMONSTRATED, NOT ONLY BY
THE STATEMENTS OF THE FOUR JUDGES WHO VOTED TO REVERSE THIS CONVICTION,
(FN4) BUT ALSO BY THE CURRENT PRACTICE CITED TO US OF OTHER WASHINGTON
TRIAL COURTS.  (FN5)  INDEED, THE PRESIDING JUDGE WHO IMPANELED THE
BECK GRAND JURY MADE SUFFICIENT INQUIRIES TO INSURE THAT GRAND JURORS
WOULD NOT BE BIASED AGAINST THE STATE IN ITS INVESTIGATION OF BECK. 

THE COURT, HOWEVER, FINDS THAT THE MURPHY AND GUTHRIE CASES HAVE NO
RELATION TO THE GUARANTEE OF A FAIR AND IMPARTIAL GRAND JURY BUT ARE
"CONCERNED ONLY WITH WHETHER THE MEMBERS OF THE GRAND JURY HAD BEEN
SELECTED BY CHANCE."  BUT EVEN THE STATE HAS TAKEN NO SUCH POSITION,
EITHER BEFORE THE WASHINGTON SUPREME COURT OR HERE.  IN ITS BRIEF
BEFORE THE WASHINGTON SUPREME COURT THE STATE ACKNOWLEDGED THAT THE
WASHINGTON STATUTE AS INTERPRETED BY THE MURPHY AND GUTHRIE CASES SET
OUT A "WELL-RECOGNIZED RULE" THAT STATE "GRAND JURIES SHOULD BE
IMPARTIAL AND UNPREJUDICED."  (FN6)  AND EVEN IN THIS COURT THE STATE
DOES NOT REPUDIATE THIS ACKNOWLEDGMENT BUT SAYS ONLY THAT BECAUSE THE
WASHINGTON SUPREME COURT WAS EQUALLY DIVIDED "THE MEANING OF WASHINGTON
STATUTES IN REGARD TO GRAND JURIES CANNOT BE DETERMINED AT THIS
POINT."  BUT OF COURSE WE MUST DECIDE WHAT THE WASHINGTON LAW IS IN
ORDER TO PASS UPON BECK'S CLAIM THAT WASHINGTON HAS DENIED HIM THE
EQUAL PROTECTION OF THE LAW. 

THE WASHINGTON STATUTE AS AUTHORITATIVELY INTERPRETED BY ITS SUPREME
COURT IN THE MURPHY AND GUTHRIE CASES MEANS NOT ONLY THAT DEFENDANTS
ARE ENTITLED UNDER WASHINGTON LAW TO HAVE INDICTMENTS AGAINST THEM
RETURNED BY IMPARTIAL GRAND JURORS BUT ALSO THAT WASHINGTON STATE
JUDGES ARE SPECIFICALLY CHARGED WITH THE DUTY AND RESPONSIBILITY OF
MAKING ALL INQUIRIES NECESSARY TO INSURE DEFENDANTS AGAINST BEING TRIED
ON INDICTMENTS RETURNED BY PREJUDICED GRAND JURORS.  NEITHER THE
LEGISLATURE NOR THE STATE SUPREME COURT HAS EVER CHANGED THAT STATUTE
OR ITS INTERPRETATION.  CERTAINLY, THE EQUAL DIVISION OF JUDGES IN THE
WASHINGTON SUPREME COURT WHICH LEFT BECK'S CONVICTION STANDING DID NOT
IMPAIR THE OLD STATUTE OR ITS PREVIOUSLY ESTABLISHED INTERPRETATION. 
EVEN WASHINGTON'S OWN COUNSEL TELL US THAT "SINCE THE REASONS FOR THE
WASHINGTON COURT BEING EQUALLY DIVIDED ARE SIGNED BY NO MORE THAN FOUR
JUDGES EACH, THOSE REASONS ARE NOT A DECISION OF THAT COURT," AND "ARE
OF NO SIGNIFICANCE WHATSOEVER AS FAR AS THE DECISIONAL LAW OF THE STATE
OF WASHINGTON IS CONCERNED."  SINCE THE LEGISLATURE HAS NOT CHANGED ITS
STATUTE AND THE SUPREME COURT OF WASHINGTON HAS NOT CHANGED ITS
INTERPRETATION OF THAT STATUTE, THE LAW OF WASHINGTON REMAINS THE SAME
AS IT WAS BEFORE BECK'S CONVICTION WAS LEFT STANDING BY THE EQUALLY
DIVIDED WASHINGTON COURT.  AND AS IT WAS BEFORE, IT REQUIRED WASHINGTON
JUDGES TO PROTECT PERSONS FROM BEING INDICTED BY PREJUDICED AND BIASED
GRAND JURIES.  IF BECK HAS BEEN DENIED THAT PROTECTION WITHOUT THE
LAW'S HAVING BEEN CHANGED, THEN HE HAS BEEN SINGLED OUT BY THE STATE AS
THE SOLE PERSON TO BE SO TREATED.  SUCH A SINGLING OUT WOULD BE A
CLASSIC INVIDIOUS DISCRIMINATION AND WOULD AMOUNT TO A DENIAL OF EQUAL
PROTECTION OF THE LAW.  WE MUST DETERMINE, THEREFORE, WHETHER THE GRAND
JURY THAT INDICTED BECK WAS IMPANELED IN A WAY THAT VIOLATED THE STATE
LAW. 

THIS QUESTION IS NOT THAT WHICH THE COURT TREATS AS CRUCIAL, WHETHER
THERE IS PROOF IN THE RECORD THAT SOME INDIVIDUAL GRAND JUROR WAS
ACTUALLY PREJUDICED AGAINST BECK, BUT RATHER THE QUITE DIFFERENT
QUESTION OF WHETHER THE JUDGE WHO IMPANELED THE GRAND JURY TOOK THE
PRECAUTIONS REQUIRED BY THE STATUTE AND ITS CONTROLLING JUDICIAL
INTERPRETATION TO INSURE A GRAND JURY THAT WOULD NOT BE TAINTED BY
PREJUDICE AGAINST BECK.  I THINK THAT THE RECORD IN THIS CASE SHOWS
BEYOND DOUBT THAT THE PRESIDING JUDGE FAILED TO DO WHAT THE STATE LAW
REQUIRED HIM TO DO - TRY TO KEEP PREJUDICED PERSONS OFF THE GRAND
JURY.  THIS FAILURE WAS PARTICULARLY SERIOUS HERE BECAUSE OF THE
EXTRAORDINARY OPPORTUNITY FOR PREJUDGMENT AND PREJUDICE CREATED BY THE
SATURATION OF THE SEATTLE AREA WITH PUBLICITY HOSTILE AND ADVERSE TO
BECK IN THE MONTHS PRECEDING AND DURING THE GRAND JURY HEARING. 

PETITIONER BECK IS A LONG-TIME RESIDENT OF SEATTLE, WELL KNOWN TO THE
COMMUNITY AS PRESIDENT OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS
AND AS A FORMER PRESIDENT OF THE WESTERN CONFERENCE OF TEAMSTERS. 
BEGINNING IN MARCH 1957, HE BECAME THE TARGET OF A NUMBER OF EXTREMELY
SERIOUS CHARGES OF CRIME AND CORRUPTION BY THE SENATE SELECT COMMITTEE
ON IMPROPER ACTIVITIES IN THE LABOR OR MANAGEMENT FIELD AND ITS STAFF. 
THESE CHARGES WERE GIVEN UNPRECEDENTED CIRCULATION IN THE SEATTLE
AREA.  (FN7)  ON MARCH 22-23, BANNER HEADLINES PROCLAIMED THE
COMMITTEE'S CHARGE THAT BECK HAD USED $270,000 IN TEAMSTERS FUNDS FOR
HIS OWN BENEFIT.  WHEN BECK APPEARED BEFORE THE COMMITTEE SEVERAL DAYS
LATER AND REFUSED TO ANSWER QUESTIONS REGARDING THE CHARGES, HE AGAIN
DREW HEADLINE COVERAGE IN THE SEATTLE PRESS: "BECK TAKES 5TH
AMENDMENT."  ONE TELEVISION STATION WENT SO FAR AS TO RUN A 9 3/4-HOUR
TELECAST OF THE PROCEEDINGS.  ON MAY 3, THE HEADLINES ANNOUNCED THE
FACT THAT BECK HAD BEEN INDICTED FOR FEDERAL TAX EVASION AND THAT A
FORMER MAYOR OF SEATTLE HAD RECEIVED A SPECIAL APPOINTMENT TO PROSECUTE
FURTHER CHARGES BEFORE A STATE GRAND JURY.  ON MAY 9, 15 AND 16, OTHER
FRONT-PAGE, PAGE-WIDE HEADLINES APPEARED, THE LAST CHARGING THAT BECK
HAD MISUSED HIS POSITION OF UNION TRUST NO LESS THAN 52 DIFFERENT
TIMES.  ON MAY 17, A THREE-COLUMN FRONT-PAGE STORY RECOUNTED THE FACT
THAT BECK HAD PLEADED THE FIFTH AMENDMENT 60 TIMES TO QUESTIONS FROM
THE SENATE COMMITTEE.  AND ON MAY 20, THE DAY THE GRAND JURY WAS
IMPANELED, HEADLINES ANNOUNCED BECK'S EXPULSION FROM HIS AFL-CIO POST
ON THE GROUND THAT "DAVE BECK WAS FOUND 'GUILTY AS CHARGED' BY THE A.F.
OF L.-C.I.O EXECUTIVE COUNCIL," AND THAT SAME PAPER ALSO CARRIED A
CHARGE BY SENATOR MCCLELLAN THAT BECK "HAS COMMITTED MANY CRIMINAL
OFFENSES."  ALL THE WHILE RADIO, TELEVISION, THE NATIONAL NEWS
MAGAZINES AND THE PRESS IN LESSER FRONT-PAGE AND BACKUP STORIES
PUBLISHED CHARGES OF A SIMILAR NATURE.  THIS FLOOD OF INTENSE PUBLIC
ACCUSATION OF CRIME AND BREACH OF TRUST BY PROMINENT AND HIGHLY PLACED
PERSONS, COUPLED WITH PUBLICITY RESULTING FROM BECK'S REFUSAL ON
GROUNDS OF POSSIBLE SELF-INCRIMINATION TO ANSWER QUESTIONS BEFORE THE
SENATE COMMITTEE AS TO THE CHARGES MADE, IMPOSED A VERY HEAVY DUTY ON
THE PRESIDING JUDGE UNDER WASHINGTON LAW TO PROTECT BECK FROM A BIASED
AND PREJUDICED GRAND JURY. 

FAR FROM DISCHARGING THAT DUTY, HOWEVER, THE JUDGE ACTUALLY INCREASED
THE PROBABILITY THAT PERSONS BIASED AGAINST BECK WOULD BE LEFT ON THE
GRAND JURY.  FOR WHILE HE ASKED A NUMBER OF QUESTIONS DIRECTED TOWARD
EXCLUDING FROM THE JURY UNION MEMBERS WHO MIGHT BE SYMPATHETIC TO BECK,
HE MADE NO EFFECTIVE EFFORT AT ALL TO PROTECT BECK.  THUS, HE MANAGED
TO ASK ALMOST EVERY JUROR WHETHER HE HAD ANY CONNECTION WITH THE
TEAMSTERS OR ANY AFFILIATED UNION, WHETHER HE KNEW ANY OF THE TEAMSTERS
OFFICERS, OR WHETHER HE HAD EVER BEEN A UNION OFFICER HIMSELF.  BUT,
DESPITE HIS KNOWLEDGE OF THE WIDESPREAD PREJUDICE-BREEDING PUBLICITY
AGAINST BECK, THE JUDGE FAILED TO ASK A SINGLE JUROR A SINGLE QUESTION
REGARDING WHETHER HE HAD READ ABOUT, HEARD ABOUT OR DISCUSSED THE
CHARGES AGAINST BECK.  MOREOVER, HE FAILED TO ASK A SINGLE JUROR WHO
ACTUALLY SAT ON THE JURY WHETHER HE WAS PREJUDICED AGAINST BECK OR HAD
ALREADY MADE UP HIS MIND ABOUT THE MANY PUBLIC CHARGES.  (FN8) INDEED
AS TO THOSE JURORS THE MOST SEARCHING QUESTION WHICH EVEN THE COURT HAS
MANAGED TO PULL FROM THE RECORD WAS THE STERILE QUERY:  "IS THERE
ANYTHING ABOUT SITTING ON THIS GRAND JURY THAT MIGHT EMBARRASS YOU AT
ALL?"  EVEN THE MOST TENUOUS LOGIC COULD NOT EQUATE THAT SEARCH FOR
EMBARRASSMENT WITH A SEARCH FOR BIAS AND PREJUDICE.  THAT A SEARCH FOR
BIAS AND PREJUDICE WOULD HAVE SHOWN ITS EXISTENCE HARDLY SEEMS
QUESTIONABLE, PARTICULARLY IN VIEW OF THE FACT THAT SIX MONTHS LATER
WHEN THE PUBLICITY ADVERSE TO BECK WAS, ACCORDING TO THE COURT,
"NEITHER INTENSIVE NOR EXTENSIVE," 15 OF 43 PROSPECTIVE PETIT JURORS
SUBJECTED TO VOIR DIRE QUESTIONING EXPRESSED SOME DEGREE OF BIAS OR
PREJUDICE IN THE CASE.  (FN9) 

AFTER SUCH A RESTRAINED EFFORT TOWARD AFFORDING BECK THE PROTECTION
OF THE UNBIASED GRAND JURY ASSURED BY WASHINGTON LAW, IT WOULD BE
EXPECTED THAT THE PRESIDING JUDGE WOULD HAVE GIVEN CAREFUL AND DETAILED
INSTRUCTIONS TO THE GRAND JURY IN ORDER TO DISPEL ANY POSSIBLE
PREJUDICE IN THEIR MINDS.  NOT SO HERE, HOWEVER.  IN FACT THE
INSTRUCTIONS GIVEN NOT ONLY FAILED TO CURE, THEY MADE THE SITUATION
WORSE.  FOR INSTEAD OF INSTRUCTING THAT THE TESTIMONY AND CHARGES
BEFORE THE SENATE COMMITTEE WERE NOT EVIDENCE BEFORE THE GRAND JURY AND
THAT IT WOULD BE HIGHLY IMPROPER FOR THE GRAND JURY TO CONSIDER THEM AT
ALL, THE PRESIDING JUDGE CALLED THE JURY'S ATTENTION TO THE CHARGES OF
THEFT AND EMBEZZLEMENT AGAINST BECK BEFORE THE COMMITTEE AND TOLD THE
JURY THAT IT WAS UNDER A DUTY TO DETERMINE WHETHER THESE CHARGES WERE
REFUTED BY AN EXPLANATION ATTRIBUTED BY THE PRESS TO BECK: 

"IT SEEMS UNNECESSARY TO REVIEW THE RECENT TESTIMONY BEFORE A SENATE
INVESTIGATING COMMITTEE EXCEPT TO SAY THAT DISCLOSURES HAVE BEEN MADE
INDICATING THAT OFFICERS OF THE TEAMSTERS UNION HAVE, THROUGH TRICK AND
DEVICE, EMBEZZLED OR STOLEN HUNDREDS OF THOUSANDS OF DOLLARS OF THE
FUNDS OF THAT UNION - MONEY WHICH HAD COME TO THE UNION FROM THE DUES
OF ITS MEMBERS  ... . 

"THE PRESIDENT OF THE TEAMSTERS UNION HAS PUBLICLY DECLARED THAT THE
MONEY HE RECEIVED FROM THE UNION WAS A LOAN WHICH HE HAS REPAID.  THIS
PRESENTS A QUESTION OF FACT, THE TRUTH OF WHICH IS FOR YOU TO
ASCERTAIN." 

TOGETHER WITH THE ADDITIONAL FACTS SET OUT BY MR. JUSTICE DOUGLAS IN
HIS DISSENT, WHAT I HAVE SAID ABOVE SEEMS CLEARLY TO SHOW THAT THE
PRESIDING JUDGE TOOK NONE OF THE STEPS, EITHER IN INTERROGATION OR IN
INSTRUCTION, THAT IN THE ATMOSPHERE OF THE DAY WOULD HAVE FULFILLED HIS
STATE STATUTORY DUTY TO INSURE A GRAND JURY UNBIASED AGAINST BECK. 

THIS FAILURE OF THE JUDGE DENIES PETITIONER A PROTECTION WHICH
WASHINGTON HAS PROVIDED TO SIMILARLY SITUATED DEFENDANTS OVER THE YEARS
AND WHICH, SO FAR AS NOW FORESEEABLE, WASHINGTON WILL CONTINUE TO
PROVIDE TO ALL WASHINGTON DEFENDANTS IN THE FUTURE.  THIS FAILURE WOULD
BE CAST IN A DIFFERENT LIGHT IF THE WASHINGTON LEGISLATURE HAD REPEALED
ITS LAW OR IF ITS SUPREME COURT HAD ALTERED ITS INTERPRETATION AND SET
OUT A GENERAL RULE ABROGATING THE RIGHT TO HAVE JUDGES TAKE AFFIRMATIVE
ACTION TO INSURE AN UNBIASED GRAND JURY.  BUT WITHOUT ANY CHANGE IN THE
PRIOR LAW OR ANY SURE INDICATION THAT BECK'S "LAW" IS THE LAW OF THE
FUTURE, THE STATE OF WASHINGTON IN CONVICTING BECK APPLIES SPECIAL AND
UNFAIR TREATMENT TO HIM.  FOR ONLY BECK, A SINGLE INDIVIDUAL OUT OF ALL
THE PEOPLE CHARGED WITH CRIME BY INDICTMENT IN WASHINGTON, IS DENIED
HIS CLEARLY DEFINED RIGHT UNDER THE LAW TO HAVE THE STATE JUDICIAL
SYSTEM INSURE HIS INDICTMENT BY "IMPARTIAL GRAND JURORS,"  THROUGH THE
DEVICE OF AN EQUALLY DIVIDED VOTE IN THE WASHINGTON SUPREME COURT HE
GOES TO PRISON FOR 15 YEARS.  I THINK THAT THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT FORBIDS SUCH AN INVIDIOUS PICKING OUT OF
ONE INDIVIDUAL TO BEAR LEGAL BURDENS THAT ARE NOT IMPOSED UPON OTHERS
SIMILARLY SITUATED.  (FN10)  I CANNOT AGREE WITH THE COURT THAT SUCH A
GROSS DISCRIMINATION AGAINST SINGLE INDIVIDUAL WITH SUCH DISASTROUS
CONSEQUENCES CAN BE TREATED AS A MERE TRIAL ERROR.  FOR A JUDICIAL
DECISION WHICH SENDS A MAN TO PRISON BY REFUSING TO APPLY SETTLED LAW
WHICH ALWAYS HAS BEEN AND SO FAR AS APPEARS WILL CONTINUE TO BE APPLIED
TO ALL OTHER DEFENDANTS SIMILARLY SITUATED IS FAR MORE THAN A MERE
MISAPPLICATION OF STATE LAW.  (FN11)  IT IS A DENIAL OF EQUAL
PROTECTION OF THE LAW AND A STATE SHOULD NO MORE BE ALLOWED TO DENY A
DEFENDANT PROTECTION OF ITS LAWS THROUGH ITS JUDICIAL BRANCH THAN
THROUGH ITS LEGISLATIVE OR EXECUTIVE BRANCH. 

I THINK THAT PETITIONER WAS DENIED EQUAL PROTECTION OF THE LAW FOR
STILL ANOTHER REASON.  THE FOUR WASHINGTON JUDGES WHO VOTED TO AFFIRM
THE CONVICTION BELOW, AND WHOSE VIEWS HAVE THEREFORE DETERMINED THE
OUTCOME OF BECK'S CASE, AGREED THAT THOSE "IN CUSTODY OR HELD ON BAIL
TO ANSWER FOR AN OFFENSE," THE "PERSONS FOR WHOSE BENEFIT THAT STATUTE
WAS ENACTED," ARE ENTITLED TO GRAND JURORS WITHOUT BIAS OR PREJUDICE. 
(FN12)  THIS DIVIDES ALL PERSONS SUSPECTED OF LARCENY BY EMBEZZLEMENT,
AS PETITIONER WAS, INTO TWO CLASSES:  (1) THOSE PERSONS IN CUSTODY OR
ON BAIL, AND (2) THOSE PERSONS WHO ARE ONLY UNDER INVESTIGATION BY
GRAND JURY.  THE FIRST CLASS IS ENTITLED TO HAVE AN IMPARTIAL AND
UNBIASED GRAND JURY; THE SECOND IS NOT.  THE FOUR JUDGES WHO WANTED TO
REVERSE THIS CONVICTION COULD SEE NO REASON, NOR CAN I, FOR SAYING THAT
ONE CHARGED WITH CRIME AND IN JAIL OR ON BAIL SHOULD BE ENTITLED TO AN
UNPREJUDICED GRAND JURY BUT ONE WHO HAPPENED NOT TO BE ALREADY HELD FOR
GRAND JURY ACTION COULD VALIDLY BE INDICTED BY A BIASED AND PREJUDICED
GRAND JURY.  SO FAR AS THE NEED TO BE FREE FROM PROSECUTION BY A
PREJUDICED GRAND JURY IS CONCERNED, THERE CAN BE NO RATIONAL
DISTINCTION BETWEEN THE NEED OF THE MAN WHO IS NOT YET IN CUSTODY AND
THE NEED OF THE MAN WHO IS IN JAIL OR ON BAIL, (FN13) PARTICULARLY
WHERE AS HERE THE GRAND JURY WAS CALLED FOR THE SPECIFIC PURPOSE OF
EXAMINING INTO PETITIONER'S ACTIVITIES AND WAS SO INSTRUCTED.  NO DOUBT
THE CLEAREST EVIDENCE OF THE LACK OF RATIONALITY IN SUCH A DISTINCTION
IS THE FACT THAT FOR 108 YEARS THE STATE OF WASHINGTON HAS ITSELF MADE
NO SUCH DISTINCTION.  FOR EVEN THOUGH THE STATUTE ON ITS FACE APPLIES
ONLY TO THOSE IN CUSTODY OR ON BAIL, IT HAS ALWAYS BEEN INTERPRETED TO
GUARANTEE AN IMPARTIAL GRAND JURY TO ALL. 

A FAIR TRIAL UNDER FAIR PROCEDURE IS A BASIC ELEMENT IN OUR
GOVERNMENT.  ZEALOUS PARTISANS FILLED WITH BIAS AND PREJUDICE HAVE NO
PLACE AMONG THOSE WHOM GOVERNMENT SELECTS TO PLAY IMPORTANT PARTS IN
TRIALS DESIGNED TO LEAD TO FAIR DETERMINATIONS OF GUILT OR INNOCENCE. 
WHETHER THE DUE PROCESS PROVISIONS OF THE FEDERAL CONSTITUTION REQUIRE,
HOWEVER, THAT EVERY PROCEDURAL STEP IN A TRIAL, INCLUDING THE
IMPANELING OF A GRAND JURY, BE ABSOLUTELY FAIR AND IMPARTIAL, I NEED
NOT DETERMINE HERE.  BUT IN CONSIDERING WHETHER PEOPLE CHARGED WITH THE
SAME CRIMES UNDER THE SAME CIRCUMSTANCES, SUBJECT TO THE SAME PENALTIES
IN THE SAME PLACE MAY BE DIVIDED UP INTO CLASSES, SOME OF WHOM ARE
GIVEN THE BENEFIT OF FAIR GRAND JURORS AND SOME OF WHOM ARE NOT, WE
MUST KEEP IN MIND THE HIGH STANDARD OF FAIR AND EQUAL TREATMENT IMPOSED
BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, AS WELL AS
THE IMPORTANT PART THAT GRAND JURIES PLAY IN TRIAL PROCEDURES WHEN THEY
ARE USED.  FOR ME THE NEED FOR FAIR GRAND JURIES AS BETWEEN THOSE WHO
HAVE NOT YET BEEN FORMALLY ARRESTED AND THOSE WHO HAVE IS TOO MUCH THE
SAME TO BE TREATED AS THOUGH IT WERE DIFFERENT.  I WOULD NOT PERMIT THE
STATE OF WASHINGTON TO LAY ITS HANDS SO UNEQUALLY UPON GROUPS WHOSE
INTERESTS, WHOSE NEEDS AND WHOSE DANGERS ARE SO SIMILAR.  (FN14) 

NOT SURPRISINGLY THE COURT ATTEMPTS TO SHRUG OFF BOTH OF BECK'S EQUAL
PROTECTION CLAIMS WITHOUT REACHING THEM ON THE MERITS.  AS TO HIS FIRST
CLAIM, THAT HE WAS DENIED EQUAL PROTECTION BY THE FAILURE OF THE
WASHINGTON COURTS TO ACCORD HIM THE BENEFIT OF THE STATE LAW
GUARANTEEING AN IMPARTIAL GRAND JURY, THIS COURT ASSERTS THAT EVEN IF
BECK WAS, UNLIKE EVERYONE ELSE, DENIED THE BENEFIT OF A GRAND JURY
WHICH HAD BEEN QUESTIONED BY THE PRESIDING JUDGE TO PROTECT AGAINST
BIAS, THE ERROR WAS HARMLESS BECAUSE HE PRESENTED NO PROOF TO SHOW THAT
THE GRAND JURY SELECTED IN VIOLATION OF WASHINGTON LAW WAS ACTUALLY
BIASED OR PREJUDICED AGAINST HIM.  BUT THE WASHINGTON LAW PUTS THE DUTY
ON THE JUDGE TO INSURE AGAINST BIAS NOT ON THE DEFENDANT TO SHOW BIAS. 
THE COURT CITES ABSOLUTELY NO AUTHORITY AND I HAVE BEEN UNABLE TO FIND
ANY THAT WHEN A WASHINGTON STATE JUDGE NEGLECTS HIS DUTY TO ASSURE AN
IMPARTIAL GRAND JURY HIS ERROR IS CURED BY THE FAILURE OF THE DEFENDANT
TO SHOW ACTUAL BIAS ON THE PART OF ONE OR MORE GRAND JURORS.  ON THE
CONTRARY, THE WASHINGTON SUPREME COURT SAID IN STATE EX REL.  MURPHY V.
SUPERIOR COURT: 

"GRANTING, FOR THE SAKE OF ARGUMENT, THAT NO REAL INJUSTICE HAS BEEN
DONE IN THIS PARTICULAR CASE, AND THAT A FAIR JURY WAS SELECTED, TO
APPROVE THE METHOD ADOPTED BY THE COURT WOULD BE TO PERMIT A JUDGE, IF
HE SO WILLED, TO PROVIDE A GRAND JURY OF HIS OWN CHOOSING IN EVERY CASE
UNDER COLOR OF LAW."  (FN15) 

MOREOVER, EVEN IF IT WERE POSSIBLE UNDER WASHINGTON LAW SO CAVALIERLY
TO FRITTER AWAY IMPORTANT RIGHTS OF CRIMINAL PROCEDURE DESIGNED TO
ACHIEVE FAIRNESS, THIS RECORD SHOULD SATISFY THE MOST DOUBTING THOMAS
THAT THE FAILURE TO INSURE A PROPER GRAND JURY HERE WAS IN FACT NOT
HARMLESS.  WHILE THE TRIAL COURT MADE NO DETERMINATION AS TO WHETHER
THE GRAND JURY WAS PREJUDICED AGAINST BECK, FOUR OF THE EIGHT
WASHINGTON SUPREME COURT JUDGES WHO RULED ON THE QUESTION FELT THAT A
CONCLUSIVE SHOWING OF PREJUDICE HAD BEEN MADE.  JUDGE DONWORTH,
SPEAKING FOR THOSE FOUR JUDGES, AFTER AN EXHAUSTIVE REVIEW OF THE FACTS
CONCLUDED: 

"I THINK IT WOULD BE UNREALISTIC TO BELIEVE THAT A VERY SUBSTANTIAL
NUMBER OF THE CITIZENS OF THE COMMUNITY HAD NOT ADOPTED, CONSCIOUSLY OR
UNCONSCIOUSLY, AN ATTITUDE OF BIAS AND PREJUDICE TOWARD APPELLANT AT
THE TIME THE GRAND JURY WAS CONVENED.  IF EVER THERE WAS A CASE WHICH
REQUIRED THE MOST STRINGENT OBSERVANCE OF EVERY SAFEGUARD KNOWN TO THE
LAW TO PROTECT A CITIZEN AGAINST BIAS AND PREJUDICE, THIS WAS IT." 
(FN16) 

THE OTHER FOUR JUDGES DID SAY:  "THERE IS NO SHOWING OF BIAS OR
PREJUDICE," BUT GAVE NOT THE SLIGHTEST EVIDENTIARY OR EVEN
ARGUMENTATIVE SUPPORT TO SHOW THE CORRECTNESS OF THIS OFFHAND
STATEMENT.  (FN17)  IN THESE CIRCUMSTANCES WHERE THERE HAS BEEN NO
FINDING BY THE TRIAL COURT AND WHERE THE HIGHEST COURT OF THE STATE HAS
DIVIDED EVENLY SO THAT THERE IS NO FINDING THERE EITHER, OUR ORDINARY
"SOLEMN DUTY TO MAKE INDEPENDENT INQUIRY AND DETERMINATION OF THE
DISPUTED FACTS" (FN18) UPON WHICH THE QUESTION OF DENIAL OF EQUAL
PROTECTION OF THE LAW TURNS BECOMES PARTICULARLY POINTED.  CONSIDERING
THE OVERWHELMING EVIDENCE TO SUPPORT THE FOUR JUDGES WHO THOUGHT THAT
PETITIONER HAD MADE A SHOWING OF PREJUDICE, IT SEEMS INCONCEIVABLE TO
ME THAT IT CAN FAIRLY BE SAID THAT NO SHOWING OF PREJUDICE WAS MADE. 

AS TO BECK'S SECOND CLAIM, THAT IT IS A DENIAL OF EQUAL PROTECTION OF
THE LAW TO AFFORD THOSE IN JAIL OR ON BAIL THE JUDICIAL ASSURANCE OF AN
IMPARTIAL GRAND JURY WHILE DENYING SUCH PROTECTION TO THOSE NOT IN JAIL
OR ON BAIL LIKE BECK, THE COURT APPARENTLY DOES NOT CLAIM THAT THE
ERROR WAS HARMLESS BUT DISCOVERS YET ANOTHER WAY TO AVOID HAVING TO
PASS ON THE PLAIN MERITS OF HIS CONSTITUTIONAL CLAIM.  IT CONCLUDES ON
A NUMBER OF GROUNDS THAT PETITIONER'S CLAIM WAS NOT PROPERLY PRESENTED
TO THE WASHINGTON SUPREME COURT.  I DO NOT THINK ANY ONE OF THE COURT'S
GROUNDS OR ALL OF THEM TOGETHER JUSTIFY ITS AVOIDANCE OF DETERMINING
BECK'S CONSTITUTIONAL CONTENTION ON ITS MERITS. 

(A)  IT IS SAID THAT THIS CONTENTION WAS NOT PROPERLY BEFORE THE
STATE SUPREME COURT BECAUSE "PETITIONER'S FORMAL ATTACK AT THE TRIAL
COURT LEVEL DID NOT EVEN MENTION SEC. 10.28.030  ...  ."  BUT BECK DID
CLAIM THAT THAT SECTION HAD NOT BEEN COMPLIED WITH BOTH IN HIS
"CHALLENGE TO GRAND JURY" AND IN HIS SEPARATE MOTION TO SET ASIDE THE
INDICTMENT, BOTH OF WHICH ARE SET OUT IN NOTE 3 OF THE COURT'S
OPINION.  IN FACT HIS CHALLENGE TO THE GRAND JURY WAS SPECIFICALLY CAST
IN THE TERMS OF SEC. 10.28.030.  AND BECK'S RELIANCE ON SEC. 10.28.030
AND RELATED SECTIONS OF WASHINGTON'S GRAND JURY STATUTE WAS EMPHASIZED
TIME AND TIME AGAIN BY HIS COUNSEL'S ARGUMENTS TO THE TRIAL COURT, BOTH
ORAL AND WRITTEN, ON THE CHALLENGE AND ON HIS SEPARATE MOTION TO
DISMISS THE INDICTMENT.  FOR EXAMPLE, TRIAL COUNSEL SAID:    "  ...
THE DECISIONS WHICH WE HAVE BEEN ABLE TO FIND ALL INDICATE THE SAME
THING.  THAT IS, THAT THE GRAND JURY JUST LIKE THE TRIAL JURY, MUST BE
UNBIASED AND UNPREJUDICED, AND INDEED IN A COUPLE OF THE DECISIONS THEY
REFERRED TO THIS 10.28.030 IN THE SAME MANNER I HAVE DONE TO INDICATE
THE INTENT OF THE LEGISLATURE."  (FN19) 

(B)  THE COURT SAYS:  "THAT THE PROSECUTION AND THE COURT VIEWED
PETITIONER AS OUTSIDE THE SCOPE OF SEC. 10.28.030 WAS BROUGHT HOME TO
HIM IN THE COURSE OF THE TRIAL COURT PROCEEDINGS ON HIS GRAND JURY
ATTACK."  I CANNOT AGREE THAT THE TRIAL COURT CONSTRUED SEC. 10.28.030
AS DENYING BECK THE RIGHT TO AN IMPARTIAL AND UNPREJUDICED GRAND JURY
OR INFORMED HIM TO THAT EFFECT.  WHILE IT IS TRUE THAT THE STATE'S
COUNSEL ARGUED AND THE TRIAL COURT AGREED THAT PETITIONER COULD NOT
QUESTION THE METHOD OF IMPANELING THE GRAND JURY BY A "CHALLENGE TO
GRAND JURY," THE TRIAL COURT NEVER EVEN INTIMATED THAT SEC. 10.28.030
LIMITED ITS ASSURANCE OF AN IMPARTIAL AND UNPREJUDICED GRAND JURY ONLY
TO THOSE WHO WERE INDICTED WHILE THEY WERE IN JAIL OR OUT ON BOND.  ON
THE CONTRARY, THE TRIAL COURT ADMITTED, EVEN THOUGH IT ULTIMATELY
DENIED PETITIONER'S MOTION WITHOUT FURTHER COMMENT, THAT PETITIONER
COULD ATTACK THE GRAND JURY - "INCIDENTALLY ON A MOTION TO SET ASIDE
THE INDICTMENT" - PRECISELY THE KIND OF MOTION THE PETITIONER ACTUALLY
MADE UNDER SEC. 10.40.070, WHICH MOTION IS SET OUT IN NOTE 3 OF THE
COURT'S OPINION. 

(C)  THE COURT SAYS THAT THE STATE SUPREME COURT WAS NOT REQUIRED TO
PASS ON PETITIONER'S CLAIM OF DENIAL OF EQUAL PROTECTION BECAUSE IT WAS
NOT "DEFINITELY POINTED OUT IN THE 'ASSIGNMENTS OF ERROR' IN
APPELLANT'S BRIEF," AS REQUIRED BY RULE 43 OF THE STATE RULES ON
APPEAL.  BUT AS JUST POINTED OUT THE TRIAL COURT HAD NOT CONSTRUED THE
STATUTE AS DENYING BECK WHO WAS NOT IN CUSTODY OR ON BAIL THE BENEFIT
OF AN IMPARTIAL GRAND JURY WHILE INSURING SUCH A GRAND JURY FOR
DEFENDANTS WHO WERE IN CUSTODY OR ON BAIL.  SINCE THE TRIAL COURT HAD
MADE NO SUCH RULING, BECK COULD NOT OF COURSE ASSIGN AS ERROR A RULING
THAT HAD NOT BEEN MADE.  HE DID, HOWEVER, PROPERLY ASSIGN ERRORS WHICH,
AS SHOWN IN THE COURT'S NOTE 4, WERE SUFFICIENTLY BROAD TO CHALLENGE
THE TRIAL COURT'S FAILURE TO COMPLY WITH STATE LAW IN INSURING AN
IMPARTIAL GRAND JURY.  THAT WAS ALL THAT HE COULD DO AT THAT TIME. 

(D)  ANOTHER GROUND FOR THIS COURT'S REFUSAL TO RULE ON BECK'S CLAIM
IS THAT:  "THE WASHINGTON SUPREME COURT HAS UNFAILINGLY REFUSED TO
CONSIDER CONSTITUTIONAL ATTACKS UPON STATUTES NOT MADE IN THE TRIAL
COURT  ...  ."  BUT EVEN A CASUAL INVESTIGATION OF THE OPINIONS OF THAT
COURT SHOWS THAT IT HAS NOT "UNFAILINGLY" FOLLOWED ANY SUCH PRACTICE. 
(FN20)  MOREOVER, NO WASHINGTON CASE OR ANY OTHER HAS BEEN CITED TO
PROVE THAT A QUESTION OF EQUAL PROTECTION OF THE LAW MUST BE RAISED IN
THE TRIAL COURT EVEN THOUGH THAT COURT DOES NOT ITSELF EVER MAKE A
RULING WHICH DENIES EQUAL PROTECTION OF THE LAW.  AND I WOULD THINK
THAT THIS COURT WOULD NOT TOLERATE USE OF SUCH A STATE DEVICE TO BAR
CORRECTION OF CONSTITUTIONAL VIOLATIONS. 

(E) FINALLY WHILE I DISAGREE THAT BECK'S CLAIM HAS NOT BEEN PROPERLY
PRESENTED TO THE WASHINGTON SUPREME COURT, I FIND THAT WHOLLY
IMMATERIAL HERE.  FOR AS WE SAID IN RALEY V. OHIO:  "THERE CAN BE NO
QUESTION AS TO THE PROPER PRESENTATION OF A FEDERAL CLAIM WHEN THE
HIGHEST STATE COURT PASSES ON IT."  (FN21)  AND HERE ALTHOUGH
UNDOUBTEDLY FAMILIAR WITH THE STATE RULE AND THE STATE CASES DUG UP
HERE BY THIS COURT FOR THE FIRST TIME TO SHOW THAT BECK'S CLAIM WAS NOT
PROPERLY PRESENTED, THE FACT IS THAT THE EIGHT JUDGES OF THE WASHINGTON
SUPREME COURT WHO SAT IN THIS CASE DID ACTUALLY PASS ON BECK'S CLAIM IN
HIS BRIEF BEFORE THEM THAT TO TAKE AWAY HIS RIGHT TO AN IMPARTIAL GRAND
JURY BECAUSE HE WAS NOT IN CUSTODY OR ON BAIL WOULD DENY HIM THE EQUAL
PROTECTION OF THE LAWS.  THAT CLAIM IN BECK'S STATE SUPREME COURT BRIEF
WAS: 

"IN FACT, TO PERMIT ONE WHO HAS ALREADY BEEN ARRESTED TO CHALLENGE
THE MENTAL QUALIFICATIONS OF A GRAND JUROR, WHILE DENYING THIS RIGHT TO
ONE WHO HAS NOT BEEN ARRESTED, WOULD AMOUNT TO A DENIAL OF EQUAL
PROTECTION OF THE LAW.  THIS IS PARTICULARLY TRUE  ...  IN THE STATE OF
WASHINGTON  ...  ."  (FN22) 

IN RESPONSE TO BECK'S CLAIM JUDGE DONWORTH, SPEAKING FOR THE FOUR
JUDGES WHO VOTED TO REVERSE THE CONVICTION, FULLY AGREED WITH HIS
CONTENTION, SAYING: 

"I DO NOT UNDERSTAND HOW IT CAN BE SAID, UNDER THE FACTS SHOWN IN
THIS RECORD, THAT THE REASON ENTITLING A PERSON IN CUSTODY OR HELD TO
ANSWER FOR AN OFFENSE TO BE INVESTIGATED BY AN IMPARTIAL AND
UNPREJUDICED GRAND JURY, DOES NOT APPLY EQUALLY WELL TO APPELLANT.  IT
IS AXIOMATIC THAT ALL MEN ARE EQUAL BEFORE THE LAW AND ARE ENTITLED TO
THE SAME RIGHTS UNDER THE SAME OR SIMILAR CIRCUMSTANCES. 

*         *         *         *         * 

"UNTIL THE LEGISLATURE AMENDS OR REPEALS THE STATUTORY LAW,  ...  IT
MUST BE APPLIED WITH EQUAL EFFECT TO EVERY PERSON WHOSE CONDUCT IS
UNDER INVESTIGATION BY A GRAND JURY PURSUANT TO THE COURT'S CHARGE TO
IT."  (FN23) 

THE OTHER FOUR JUDGES, OBVIOUSLY DISAGREEING WITH THEIR BRETHREN AND
REJECTING BECK'S EQUAL PROTECTION CLAIM, HELD THAT "THERE WAS A REASON"
FOR THE STATUTORY GUARANTEE OF AN IMPARTIAL GRAND JURY FOR ONE "IN
CUSTODY OR HELD TO ANSWER FOR AN OFFENSE," ALTHOUGH DENYING IT TO ONE
NOT IN CUSTODY OR ON BAIL.  (FN24) 

(F)  THE COURT ALSO GOES SO FAR AS TO SAY THAT BECK'S CONSTITUTIONAL
QUESTION WAS NOT INCLUDED AMONG THOSE QUESTIONS PRESENTED WHICH OUR
WRIT OF CERTIORARI WAS GRANTED TO REVIEW.  I DISAGREE.  IN THE
QUESTIONS PRESENTED IN THE PETITION FOR CERTIORARI AND IN THE BRIEF
SUPPORTING THAT PETITION, COUNSEL FOR BECK REPEATEDLY ASSERTED THAT IN
THE MANNER OF SELECTING THIS GRAND JURY BECK HAD BEEN DENIED THE EQUAL
PROTECTION OF THE LAW.  THE CORE OF ALL THESE CLAIMS IS DISCRIMINATION
GROWING OUT OF THE MANNER OF THE SELECTION OF THE GRAND JURY.  THE
PARTICULAR CLASSIFICATION CLAIM WHICH THE COURT SEEKS TO AVOID PASSING
ON IS ALSO A CLAIMED DISCRIMINATION WITH REFERENCE TO THE MANNER OF
SELECTION OF THE GRAND JURY.  SINCE ALL THESE CONTENTIONS ARE
INEXTRICABLY INTERTWINED, UNDER OUR DECISION OF LAST TERM IN BOYNTON V.
VIRGINIA (FN25) I SEE NO MORE REASON FOR REFUSING TO PASS ON ONE THAN
ANOTHER.  THAT CASE HELD A STATUTORY CLAIM OF DISCRIMINATION TO HAVE
BEEN SUFFICIENTLY RAISED WHERE DISCRIMINATION GENERALLY WAS "THE CORE
OF THE  ...  BROAD CONSTITUTIONAL QUESTIONS PRESENTED."  MOREOVER, I
AGREE WITH MR. JUSTICE DOUGLAS THAT UNDER RULE 23 WHICH PROHIBITS
"UNNECESSARY DETAIL" AND WHICH DEEMS A QUESTION PRESENTED "TO INCLUDE
EVERY SUBSIDIARY QUESTION FAIRLY COMPRISED THEREIN" EVEN THE MOST
GENERAL CLAIM OF EQUAL PROTECTION WOULD HAVE BEEN SUFFICIENT TO RAISE
PETITIONER'S CLAIM. 

THE PETITIONER HERE, HOWEVER, HAS NO NEED TO RELY ON EITHER THE
BOYNTON CASE OR ON THE BROAD MANDATE OF RULE 23, FOR HIS CLAIMS ARE
CLEARLY ENCOMPASSED AMONG THE SPECIFIC QUESTIONS AS TO WHICH THE WRIT
OF CERTIORARI WAS GRANTED.  TWO OF THOSE QUESTIONS READ IN PART: 

"  ...  DOES A PERSON  ...  HAVE A RIGHT UNDER THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT TO HAVE THE
CHARGES AND EVIDENCE CONSIDERED BY A GRAND JURY WHICH WAS FAIR AND
IMPARTIAL OR, AT LEAST, WHICH WAS INSTRUCTED AND DIRECTED TO ACT FAIRLY
AND IMPARTIALLY?" 

"  ...  DID HE (PETITIONER) HAVE A RIGHT UNDER THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT TO HAVE THE GRAND
JURY IMPANELED IN A MANNER WHICH WOULD PREVENT OR AT LEAST TEND TO
PREVENT THE SELECTION OF BIASED AND PREJUDICED GRAND JURORS?" 

SINCE PETITIONER'S CLAIM IS THAT HE WAS DENIED EQUAL PROTECTION OF
THE LAW BY THE FAILURE OF THE PRESIDING JUDGE TO PROVIDE THE
PROTECTION, GUARANTEED TO OTHERS, OF A GRAND JURY IMPANELED IN A MANNER
THAT WOULD INSURE AGAINST BIASED AND PREJUDICED GRAND JURORS, IT SEEMS
INCONCEIVABLE THAT THIS CONVICTION SHOULD BE SUSTAINED ON THE BASIS
THAT THE CLAIM WAS NOT INCLUDED IN THE PETITION FOR CERTIORARI. 

THE NET RESULT OF WHAT HAS TAKEN PLACE IN THE WASHINGTON SUPREME
COURT AND HERE IS TO LEAVE BECK IN THIS PREDICAMENT:  THE STATE SUPREME
COURT CONSIDERED HIS CONTENTION, TRIED TO DECIDE IT BUT COULD NOT
BECAUSE IT WAS EQUALLY DIVIDED; THIS COURT ON THE CONTRARY REFUSES TO
DECIDE IT AT ALL ON THE GROUND THAT BECK HAS NEVER RAISED SUCH A
QUESTION ANYWHERE.  THE PRACTICAL CONSEQUENCE OF THIS PREDICAMENT IS TO
ACCEPT THE ARGUMENT OF THE STATE THAT IF BECK'S CONSTITUTIONAL RIGHTS
ARE TO BE PROTECTED HE MUST DEPEND UPON "THE WASHINGTON LEGISLATURE AND
NOT THE UNITED STATES SUPREME COURT."  (FN26)  FOR THIS COURT TO ACCEPT
SUCH A CONSEQUENCE SEEMS TO ME TO BE AN ABANDONMENT OF ITS SOLEMN
RESPONSIBILITY TO PROTECT THE CONSTITUTIONAL RIGHTS OF THE PEOPLE. 

THE RULES OF PRACTICE WHICH CONGRESS AND THIS COURT HAVE ADOPTED OVER
THE COURSE OF YEARS TO CRYSTALLIZE AND DEFINE THE ISSUES PROPERLY
BEFORE THE COURT WERE DESIGNED TO ASSIST THE COURT IN THE FAIR AND
IMPARTIAL ADMINISTRATION OF JUSTICE.  I CANNOT BELIEVE THAT THIS END
HAS BEEN ACHIEVED HERE. 

FN1  REVISED CODE OF WASHINGTON SEC. 10.28.030.  THE BRACKETED
PORTION IS FROM SEC. 10.28.010, A COMPANION SECTION RELATING TO
CHALLENGES TO THE ENTIRE GRAND JURY PANEL.  THESE PROVISIONS WERE SECS.
45-46 OF THE ORIGINAL 1854 ACT, WASHINGTON TERRITORY ACTS, P. 110. 

FN2  82 WASH. 284, 286, 144 P. 32, 32-33. 

FN3  185 WASH. 464, 475, 56 P.2D 160, 164. 

FN4  THESE FOUR JUDGES WERE OF THE OPINION THAT THE ABOVE-CITED
STATUTE AND CASES REQUIRED THIS CASE TO BE DECIDED ON THE "PREMISE THAT
...  BECK, AS A MATTER OF LAW, WAS ENTITLED TO AN IMPARTIAL AND
UNPREJUDICED GRAND JURY," AND THAT THE "FAILURE OF THE COURT TO
INTERROGATE THE JURORS FOR THE EXISTENCE OF POSSIBLE BIAS AND PREJUDICE
AGAINST THE OFFICERS OF THE TEAMSTERS' UNION CONSTITUTED PREJUDICIAL
ERROR."  STATE V. BECK, 56 WASH. 2D 474, 519, 520, 349 P.2D 387, 412,
413.  JUDGE HUNTER IN A SEPARATE OPINION STATED THAT THE REQUIREMENT OF
IMPARTIALITY "WAS ANNOUNCED AS ESSENTIAL TO A GRAND JURY PROCEEDING BY
BOTH THE LEGISLATURE AND THE SUPREME COURT OF THIS STATE, IN THE
STATUTES AND DECISIONS  ...  ."  56 WASH. 2D, AT 537, 349 P.2D, AT 423
424. 

FN5  THE FOLLOWING WERE QUOTED TO US AS TYPICAL VOIR DIRE QUESTIONS
ASKED BY PRESIDING JUDGES IN THE IMPANELING OF TWO RECENT GRAND JURIES
IN WASHINGTON: 

"'Q - WOULD THERE BE ANYTHING IN YOUR ACQUAINTANCESHIP WITH MR.
SCHUSTER THAT WOULD IN ANY WAY TEND TO AFFECT YOUR DECISIONS IN THIS
GRAND JURY INVESTIGATION? 

"'A - I DON'T THINK SO. 

"'Q - IN OTHER WORDS, YOU WOULDN'T HAVE ANY HATRED OR MALICE OR FEAR
OR FAVOR OR ANYTHING OF THAT NATURE SO FAR AS YOUR DELIBERATING WOULD
BE CONCERNED IN CONNECTION WITH THIS INVESTIGATION? 

"'A - NO.'" 

"'Q - FROM WHAT YOU HAVE HEARD, AND I DON'T BELIEVE YOU LIVE IN A
VACUUM ANY MORE THAN THE REST OF US, IS THERE ANYTHING YOU HAVE READ OR
THAT HAS BEEN SUGGESTED BY THE COURT IN THESE PROCEEDINGS THAT WOULD
SUGGEST TO YOU WHY YOU COULDN'T BE FAIR, IMPARTIAL AND OBJECTIVE IN
MAKING AN EXAMINATION INTO LAW ENFORCEMENT IN THIS COUNTY? 

"'A - NO, SIR.'" 

FN6  THE FOUR JUDGES WHO VOTED TO REVERSE THIS CONVICTION BELOW
RELIED IN PART UPON THIS ACKNOWLEDGMENT, SAYING: 

"THE STATE HAS FILED A COMPREHENSIVE BRIEF CONSISTING OF ONE HUNDRED
FIFTY PAGES CONTAINING THE FOLLOWING ANSWER TO APPELLANT'S ARGUMENT
REGARDING HIS RIGHT TO AN IMPARTIAL AND UNPREJUDICED GRAND JURY: 

"'APPELLANT ASSERTS THAT THE DENIAL OF HIS MOTION TO SET ASIDE THE
INDICTMENT CONSTITUTED ERROR UNDER OUR STATUTES AND CONSTITUTION AND
THE CONSTITUTION OF THE UNITED STATES (APP. BR. 35). 

"'  ...  EXCEPT FOR CITING THE WELL-RECOGNIZED RULE THAT GRAND JURIES
SHOULD BE IMPARTIAL AND UNPREJUDICED (APP. BR. 37), THE CASES ARE NOT
OTHERWISE APPLICABLE.'"  AMONG THE CASES CITED IN APPELLANT'S STATE
COURT BRIEF TO SUPPORT HIS CONTENTION THAT THE GRAND JURY WAS NOT
ORGANIZED IN ACCORDANCE WITH STATE LAW WERE WATTS V. WASHINGTON
TERRITORY, 1 WASH. TERR.  409; STATE EX REL. MURPHY V. SUPERIOR COURT,
82 WASH. 284, 144 P. 32; AND STATE V. GUTHRIE, 185 WASH. 464, 56 P.2D
160. 

FN7  "THE AMOUNT, INTENSITY, AND DEROGATORY NATURE OF THE PUBLICITY
RECEIVED BY APPELLANT DURING THIS PERIOD IS WITHOUT PRECEDENT IN THE
STATE OF WASHINGTON."  56 WASH. 2D, AT 511, 349 P.2D, AT 408 (OPINION
OF JUDGE DONWORTH FOR THE FOUR JUDGES WHO VOTED TO REVERSE). 

FN8  NO PROSPECTIVE GRAND JUROR WAS ASKED IF HE WAS PREJUDICED
AGAINST BECK, AND ONLY THREE WERE ASKED IF THEY WERE CONSCIOUS OF BIAS
OR PREJUDICE OF ANY KIND.  TWO OF THESE WERE EXCUSED. 

FN9  ALTHOUGH 52 PROSPECTIVE JURORS WERE ADMITTED TO VOIR DIRE, NINE
OF THESE WERE EXCUSED FOR PERSONAL REASONS OF HEALTH OR CONVENIENCE AND
WERE NOT THEREFORE QUESTIONED BY EITHER COUNSEL. 

FN10 SEE ATCHISON, TOPEKA & SANTA FE R. CO. V. MATTHEWS, 174 U.S. 96,
104-105.  CF. MCFARLAND V. AMERICAN SUGAR REFINING CO., 241 U.S. 79,
86. 

FN11  UNLIKE THIS CASE, WHICH INVOLVES THE CONTENTION THAT THE
FAILURE OF THE WASHINGTON COURTS TO APPLY THEIR PRIOR SETTLED LAW AS TO
A SINGLE STATUTE DENIES PETITIONER BECK THE EQUAL PROTECTION OF THE
LAW, MILWAUKEE ELEC.  R. CO. V. MILWAUKEE, 252 U.S. 100, INVOLVES THE
QUESTION OF WHETHER THE WISCONSIN SUPREME COURT WAS INCONSISTENT IN ITS
TREATMENT OF TWO DIFFERENT MUNICIPAL LEGISLATIVE PROVISIONS.    FN12
56 WASH. 2D, AT 480, 349 P.2D, AT 390. 

FN13  EVEN BEFORE THE ADOPTION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, OTHER COURTS HAD REFUSED TO ALLOW ANY DISTINCTION
AS TO THE RIGHT TO A PROPER COMPOSITION OF A GRAND JURY UNDER STATE LAW
BETWEEN THOSE IN JAIL OR ON BAIL AND THOSE MERELY SUBJECT TO GRAND JURY
INVESTIGATION.  THUS IN UNITED STATES V. BLODGETT, 30 FED. CAS. 1157,
1159 (NO. 18312), THE COURT SAID:    "TRUE, HE WAS NOT ARRESTED AND
IMPRISONED ON ANY CRIMINAL CHARGE, AND NOW BROUGHT HITHER BY ORDER OF
THE COURT, NOR IS HE UNDER BAIL OR RECOGNIZANCE; BUT BECAUSE HE IS NOT
IN ANY OF THESE CONSTRAINED POSITIONS, IS HE ANY THE LESS ENTITLED TO A
GRAND JURY OF HIS COUNTRY, LEGALLY QUALIFIED UNDER ITS LAWS?  SURELY
NOT." 

AND IN MCQUILLEN V. STATE, 16 MISS.  587, 597, THE MISSISSIPPI COURT
SAID AS TO A PURPORTED DISTINCTION BETWEEN THE RIGHT OF PERSONS IN
COURT AT THE TIME OF INDICTMENT TO CHALLENGE GRAND JURORS FOR CAUSE AND
THE RIGHT OF THOSE NOT IN COURT TO CHALLENGE SUCH JURORS: 

"THE LAW WORKS UNEQUALLY BY ALLOWING ONE CLASS OF PERSONS TO OBJECT
TO THE COMPETENCY OF THE GRAND JURY, WHILST ANOTHER CLASS HAS NO SUCH
PRIVILEGE.  THIS CANNOT BE.  THE LAW FURNISHES THE SAME SECURITY TO
ALL, AND THE SAME PRINCIPLE WHICH GIVES TO A PRISONER IN COURT THE
RIGHT TO CHALLENGE, GIVES TO ONE WHO IS NOT IN COURT THE RIGHT TO
ACCOMPLISH THE SAME END BY PLEA  ...  ."  SEE ALSO HARDIN V. STATE, 22
IND. 347, 351-352; CROWLEY V. UNITED STATES, 194 U.S. 461, 469-470. 

FN14  CF. SKINNER V. OKLAHOMA EX REL. WILLIAMSON, 316 U.S. 535. 

FN15  82 WASH. 284, 287-288, 144 P. 32, 33. 

FN16  56 WASH. 2D, AT 512, 349 P.2D, AT 408. 

FN17  56 WASH. 2D, AT 480, 349 P.2D, AT 390. 

FN18  PIERRE V. LOUISIANA, 306 U.S. 354, 358. 

FN19  THE DECISIONS REFERRED TO WERE WATTS V. WASHINGTON TERRITORY, 1
WASH. TERR.  409; STATE EX REL. MURPHY V. SUPERIOR COURT, 82 WASH. 284,
144 P. 32; AND STATE V. GUTHRIE, 185 WASH. 464, 56 P.2D 160. 

FN20  SEE, E.G., WASHINGTON V. GRIFFITH, 52 WASH. 2D 721, 328 P.2D
897; LEE V. SEATTLE-FIRST NATIONAL BANK, 49 WASH. 2D 254, 299 P.2D
1066. 

FN21  360 U.S. 423, 436. 

FN22  I KNOW OF NO REASON WHY THIS COURT SHOULD SAY THAT THE
WASHINGTON SUPREME COURT WOULD NOT "SEARCH THROUGH THE BRIEF" "TO FIND"
THIS CONTENTION, FOR I AM NOT WILLING TO ASSUME THAT THE MEMBERS OF THE
HIGHEST COURT OF WASHINGTON DID NOT READ THE BRIEFS OF THE PARTIES IN
THIS CASE.  I MUST ALSO TAKE ISSUE WITH THE COURT'S VIEW THAT THIS
PARTICULAR CONSTITUTIONAL CONTENTION WAS STATED IN ONLY ONE SENTENCE. 
AS I READ THE BRIEFS BEFORE ME PETITIONER TOOK UP ALMOST TWO WHOLE
PAGES IN PRESENTING THIS ARGUMENT AND CITES EIGHT CASES AND OTHER
AUTHORITIES.  MOREOVER, THE FOUR STATE SUPREME COURT JUDGES WHO VOTED
TO AFFIRM AND WHO HAD PETITIONER'S BRIEF BEFORE THEM REFERRED TO THAT
PART OF THE BRIEF DEVOTED TO THE "GRAND JURY PROCEEDINGS" AS "THE
LONGEST SECTION OF APPELLANT'S BRIEF."  56 WASH. 2D, AT 475, 349 P.2D,
AT 387.  SINCE THEY HAD TO READ THIS SECTION TO REFER TO IT IN THIS WAY
AND TO DISCUSS IT, I AM AT A COMPLETE LOSS TO UNDERSTAND THE COURT'S
FURTHER STATEMENT THAT PETITIONER'S ARGUMENT ON THIS POINT WAS
"CONSIDERED BY THE WASHINGTON SUPREME COURT TO BE AN ABANDONMENT OR
WAIVER OF SUCH CONTENTION."  I CAN ONLY CONSIDER THE ABANDONMENT FOUND
BY THIS COURT TO BE AN EX POST FACTO ABANDONMENT AS FAR AS THE
WASHINGTON SUPREME COURT IS CONCERNED BECAUSE AS POINTED OUT ABOVE THAT
COURT ACTUALLY CONSIDERED AND PASSED ON THE POINT. 

FN23  56 WASH. 2D, AT 528, 530, 349 P.2D, AT 418, 419.  TO SUGGEST,
AS THE COURT DOES, THAT THIS DISCUSSION INVOLVES "INTERPRETATION" OF
THE STATUTE BUT DOES NOT RELATE TO EQUAL PROTECTION OF THE LAWS IS TO
DRAW A DISTINCTION THAT SIMPLY DOES NOT EXIST.  WHAT THE FOUR JUDGES
WHO WANTED TO REVERSE THIS CONVICTION SAID IN THE PLAINEST WORDS
POSSIBLE WAS THAT THE INTERPRETATION OF THE STATUTE ADOPTED BY THE FOUR
WHO VOTED TO AFFIRM IS ONE THAT IS WRONG BECAUSE, AMONG OTHER REASONS,
IT DENIES EQUAL PROTECTION OF THE LAW. 

FN24  56 WASH. 2D, AT 479, 349 P.2D, AT 390. 

FN25  364 U.S. 454, 457. 

FN26  THAT ARGUMENT WAS FULLY SET OUT IN THE STATE'S OPPOSITION TO
THE PETITION FOR CERTIORARI: "THE EFFECT OF THE WASHINGTON COURT
DECISION IN THE INSTANT CASE IS THAT THE MEANING OF WASHINGTON STATUTES
IN REGARD TO GRAND JURIES CANNOT BE DETERMINED AT THIS POINT.  IT WOULD
FOLLOW THAT THIS DETERMINATION ALSO IS BINDING ON THE UNITED STATES
SUPREME COURT. 

"SINCE THERE IS NEITHER A FEDERAL NOR A WASHINGTON STATE
CONSTITUTIONAL RIGHT TO AN IMPARTIAL GRAND JURY, AND THE WASHINGTON
SUPREME COURT CANNOT DETERMINE WHAT THE WASHINGTON STATUTES PRESCRIBE
IN THAT REGARD, THE WASHINGTON LEGISLATURE AND NOT THE UNITED STATES
SUPREME COURT MUST ANSWER THAT QUESTION." 

MR. JUSTICE DOUGLAS, DISSENTING. 

                      I. 

ALTHOUGH, ACCORDING TO HURTADO V. CALIFORNIA, 110 U.S. 516,
WASHINGTON NEED NOT USE THE GRAND JURY IN ORDER TO BRING CRIMINAL
CHARGES AGAINST PERSONS, IT OCCASIONALLY DOES USE ONE; AND A GRAND JURY
WAS IMPANELED IN THIS CASE.  IT IS WELL SETTLED THAT WHEN EITHER THE
FEDERAL GOVERNMENT OR A STATE USES A GRAND JURY, THE ACCUSED IS
ENTITLED TO THOSE PROCEDURES WHICH WILL INSURE, SO FAR AS POSSIBLE,
THAT THE GRAND JURY SELECTED IS FAIR AND IMPARTIAL.  (FN1)  THAT IS THE
REASON WHY THE SYSTEMATIC EXCLUSION OF NEGROES FROM GRAND JURY SERVICE
INFECTS THE ACCUSATORY PROCESS.  SEE PIERRE V. LOUISIANA, 306 U.S. 354;
CASSELL V. TEXAS, 339 U.S. 282.  THE SAME PRINCIPLE WAS APPLIED IN
HERNANDEZ V. TEXAS, 347 U.S. 475, WHEN MEXICANS WERE SYSTEMATICALLY
EXCLUDED FROM DUTY AS GRAND AND PETIT JURORS.  THE SAME PRINCIPLE WOULD
ALSO APPLY "IF A LAW SHOULD BE PASSED EXCLUDING ALL NATURALIZED CELTIC
IRISHMEN" FROM GRAND JURY DUTY.  STRAUDER V. WEST VIRGINIA, 100 U.S.
303, 308. 

RACIAL DISCRIMINATION IS ONLY ONE ASPECT OF THE GRAND JURY PROBLEM. 
AS STATED IN HALE V. HENKEL, 201 U.S. 43, 59, "  ...  THE MOST VALUABLE
FUNCTION OF THE GRAND JURY WAS NOT ONLY TO EXAMINE INTO THE COMMISSION
OF CRIMES, BUT TO STAND BETWEEN THE PROSECUTOR AND THE ACCUSED, AND TO
DETERMINE WHETHER THE CHARGE WAS FOUNDED UPON CREDIBLE TESTIMONY OR WAS
DICTATED BY MALICE OR PERSONAL ILL WILL."  WE EMPHASIZED IN HOFFMAN V.
UNITED STATES, 341 U.S. 479, 485, THE IMPORTANCE OF "THE CONTINUING
NECESSITY THAT PROSECUTORS AND COURTS ALIKE BE 'ALERT TO REPRESS' ANY
ABUSES OF THE INVESTIGATORY POWER" OF THE GRAND JURY.  (FN2)  WE
RECENTLY STATED IN COSTELLO V. UNITED STATES, 350 U.S. 359, 362, THAT: 

"THE GRAND JURY IS AN ENGLISH INSTITUTION, BROUGHT TO THIS COUNTRY BY
THE EARLY COLONISTS AND INCORPORATED IN THE CONSTITUTION BY THE
FOUNDERS.  THERE IS EVERY REASON TO BELIEVE THAT OUR CONSTITUTIONAL
GRAND JURY WAS INTENDED TO OPERATE SUBSTANTIALLY LIKE ITS ENGLISH
PROGENITOR.  THE BASIC PURPOSE OF THE ENGLISH GRAND JURY WAS TO PROVIDE
A FAIR METHOD FOR INSTITUTING CRIMINAL PROCEEDINGS AGAINST PERSONS
BELIEVED TO HAVE COMMITTED CRIMES." 

THE WASHINGTON SUPREME COURT, WHICH AFFIRMED THIS JUDGMENT OF
CONVICTION, DID SO BY AN EQUALLY DIVIDED VOTE.  THE FOUR VOTING FOR
AFFIRMANCE STATED THAT ABSENT A STATUTORY REQUIREMENT, "BIAS OR
PREJUDICE" ON THE PART OF THE GRAND JURY WAS IRRELEVANT.  56 WASH. 2D
474, 480, 349 P.2D 387, 390. 

THE CASE OF FRISBIE V. COLLINS, 342 U.S. 519, IS OFFERED AS
JUSTIFICATION FOR THE USE OF AN UNFAIR PROCEDURE IN BRINGING THIS
CHARGE AGAINST PETITIONER.  WE THERE HELD THAT FORCIBLY ABDUCTING A
PERSON AND BRINGING HIM INTO THE STATE DID NOT VITIATE A STATE
CONVICTION WHERE THE TRIAL WAS FAIR AND PURSUANT TO CONSTITUTIONAL
PROCEDURAL REQUIREMENTS.  HERE, HOWEVER, A PART OF THE CRIMINAL
PROCEEDING IS ITSELF INFECTED WITH UNFAIRNESS.  WHETHER IT WAS
NECESSARY TO USE THE GRAND JURY IS IMMATERIAL.  IT WAS USED; AND THE
QUESTION IS WHETHER IT WAS USED UNFAIRLY.  THE CASE IS, THEREFORE, LIKE
THOSE WHERE PROCEDURES, ANTERIOR TO THE TRIAL, ARE OPPRESSIVE.  A
NOTORIOUS EXAMPLE IS AN UNLAWFUL ARREST OR THE USE OF DETENTION BY THE
POLICE TO OBTAIN A CONFESSION.  SEE, E.G., PAYNE V. ARKANSAS, 356 U.S.
560; FIKES V. ALABAMA, 352 U.S. 191; WATTS V. INDIANA, 338 U.S. 49;
TURNER V. PENNSYLVANIA, 338 U.S. 62; WARD V. TEXAS, 316 U.S. 547. 
ANOTHER EXAMPLE IS DENIAL OF THE RIGHT TO COUNSEL.  AS STATED IN POWELL
V. ALABAMA, 287 U.S. 45, 57, THAT RIGHT EXTENDS TO A PERIOD ANTERIOR TO
THE TRIAL ITSELF "WHEN CONSULTATION, THOROUGH-GOING INVESTIGATION AND
PREPARATION" ARE "VITALLY IMPORTANT."  CF. SPANO V. NEW YORK, 360 U.S.
315, 324 (CONCURRING OPINION). 

COULD WE POSSIBLY SUSTAIN A CONVICTION OBTAINED IN EITHER A STATE OR
FEDERAL COURT WHERE THE GRAND JURY THAT BROUGHT THE CHARGE WAS COMPOSED
OF THE ACCUSED'S POLITICAL ENEMIES?  IF WE DID, WE WOULD SANCTION
PROSECUTION FOR PRIVATE, NOT PUBLIC, PURPOSES.  WHENEVER UNFAIRNESS CAN
BE SHOWN TO INFECT ANY PART OF A CRIMINAL PROCEEDING, WE SHOULD HOLD
THAT THE REQUIREMENTS OF DUE PROCESS ARE LACKING. 

A DISSENT IN CASSELL V. TEXAS, 339 U.S. 282, 298, SAID, "IT HARDLY
LIES IN THE MOUTH OF A DEFENDANT WHOM A FAIRLY CHOSEN TRIAL JURY HAS
FOUND GUILTY BEYOND REASONABLE DOUBT, TO SAY THAT HIS INDICTMENT IS
ATTRIBUTABLE TO PREJUDICE."  ID., AT 302.  BUT THE COURT DID NOT
AGREE.  SINCE A GRAND JURY WAS USED TO INDICT, THE COURT HELD THE GRAND
JURY TO CONSTITUTIONAL REQUIREMENTS.  WE SHOULD DO THE SAME HERE.  AS
WE STATED IN HILL V. TEXAS, 316 U.S. 400, 406: 

"IT IS THE STATE'S FUNCTION, NOT OURS, TO ASSESS THE EVIDENCE AGAINST
A DEFENDANT.  BUT IT IS OUR DUTY AS WELL AS THE STATE'S TO SEE TO IT
THAT THROUGHOUT THE PROCEDURE FOR BRINGING HIM TO JUSTICE HE SHALL
ENJOY THE PROTECTION WHICH THE CONSTITUTION GUARANTEES.  WHERE, AS IN
THIS CASE, TIMELY OBJECTION HAS LAID BARE A DISCRIMINATION IN THE
SELECTION OF GRAND JURORS, THE CONVICTION CANNOT STAND, BECAUSE THE
CONSTITUTION PROHIBITS THE PROCEDURE BY WHICH IT WAS OBTAINED." 

A GRAND JURY SERVES A HIGH FUNCTION.  AS STATED IN UNITED STATES V.
WELLS, 163 F. 313, 324: 

"IT IS A FAMILIAR HISTORICAL FACT THAT THE SYSTEM WAS DEVISED TO
PREVENT HARASSMENTS GROWING OUT OF MALICIOUS, UNFOUNDED, OR VEXATIOUS
ACCUSATIONS.  THAT IT SERVES THE PURPOSE OF ALLOWING PROSECUTIONS TO BE
INITIATED BY THE PEOPLE THEMSELVES IN NO WAY DETRACTS FROM THE FACT
THAT IT STILL STANDS AS A SAFEGUARD AGAINST ARBITRARY OR OPPRESSIVE
ACTION." 

THE SAME VIEW WAS STATED BY MR. JUSTICE FIELD, SITTING AS CIRCUIT
JUSTICE: 

"IN THIS COUNTRY, FROM THE POPULAR CHARACTER OF OUR INSTITUTIONS,
THERE HAS SELDOM BEEN ANY CONTEST BETWEEN THE GOVERNMENT AND THE
CITIZEN, WHICH REQUIRED THE EXISTENCE OF THE GRAND JURY AS A PROTECTION
AGAINST OPPRESSIVE ACTION OF THE GOVERNMENT.  YET THE INSTITUTION WAS
ADOPTED IN THIS COUNTRY, AND IS CONTINUED FROM CONSIDERATIONS SIMILAR
TO THOSE WHICH GIVE TO IT ITS CHIEF VALUE IN ENGLAND, AND IS DESIGNED
AS A MEANS, NOT ONLY OF BRINGING TO TRIAL PERSONS ACCUSED OF PUBLIC
OFFENSES UPON JUST GROUNDS, BUT ALSO AS A MEANS OF PROTECTING THE
CITIZEN AGAINST UNFOUNDED ACCUSATION, WHETHER IT COME FROM GOVERNMENT
OR BE PROMPTED BY PARTISAN PASSION OR PRIVATE ENMITY."  30 FED. CAS.
992, 993, NO. 18, 255. 

ONE WHO READS THIS RECORD IS LEFT WITH DOUBTS OF THE MOST SERIOUS
CHARACTER THAT THE PROCEDURE USED IN THE SELECTION OF THE GRAND JURY
WAS FAIR IN LIGHT OF THE UNUSUAL CONDITIONS THAT OBTAINED AT THE TIME. 

                                         II. 

PETITIONER ON MARCH 26 AND 27, 1957, APPEARED BEFORE A SENATE
COMMITTEE IN WASHINGTON, D.C., AND DURING HIS QUESTIONING INVOKED THE
FIFTH AMENDMENT 150 TIMES. 

ON MAY 2, 1957, PETITIONER WAS INDICTED IN TACOMA BY A FEDERAL GRAND
JURY FOR INCOME TAX EVASION. 

ON MAY 8, 1957, PETITIONER WAS RECALLED TO TESTIFY BEFORE THE SENATE
COMMITTEE AND DURING ANOTHER LONG INTERROGATION INVOKED THE FIFTH
AMENDMENT ABOUT 60 TIMES. 

DURING THESE HEARINGS THE COMMITTEE MEMBERS MADE VARIOUS COMMENTS
CONCERNING PETITIONER.  AS JUDGE DONWORTH, SPEAKING FOR HIMSELF AND
THREE OTHER MEMBERS OF THE SUPREME COURT OF WASHINGTON, SAID: 

"THESE COMMENTS, WHICH WERE EXTREMELY DEROGATORY TO APPELLANT, WERE
WIDELY CIRCULATED BY ALL NEWS MEDIA THROUGHOUT THE UNITED STATES, AND
PARTICULARLY IN THE SEATTLE AREA.  IN THESE COMMENTS, APPELLANT WAS
CHARACTERIZED AS A THIEF, AND IT WAS ASSERTED THAT HE WAS GUILTY OF
FRAUD AND OTHER ILLEGAL CONDUCT WITH RESPECT TO HIS MANAGEMENT OF THE
AFFAIRS OF THE TEAMSTERS' UNION AS ITS PRINCIPAL OFFICER IN THE ELEVEN
WESTERN STATES, AND LATER IN HIS POSITION AS ITS INTERNATIONAL
PRESIDENT. 

"THESE CONCLUSIONS AND OPINIONS (PARTICULARLY THOSE EXPRESSED BY
SENATOR MCCLELLAN, THE CHAIRMAN OF THE COMMITTEE) WERE DISPLAYED BY
LOCAL NEWSPAPERS ON THE FRONT PAGE IN PROMINENT HEADLINES.  THE
FOLLOWING ARE A FEW OF THE COMMENTS WHICH WERE REFERRED TO IN SUCH
HEADLINES WHICH APPEARED IN SEATTLE NEWSPAPERS: 

"'TEAMSTERS' CASH KEPT GOING TO BECK AFTER HE BECAME UNION PRESIDENT,
SAYS PROBER.'  SEATTLE TIMES, MARCH 23, 1957. 

     *       *         *         *         * 

"'BECK GIVES "BLACK EYE" TO LABOR, SAYS SEN. MCNAMARA.'  SEATTLE
TIMES, MARCH 27, 1957. 

"'SENATE PROBE LIFTS LID ON BECK BEER BUSINESS - USE OF UNION MONEY
RELATED.'  SEATTLE POST-INTELLIGENCER, MAY 9, 1957. 

"SUBSTANTIAL PORTIONS OF THE COMMITTEE PROCEEDINGS RELATING TO THESE
CHARGES WERE ALSO REPRODUCED IN THE COURSE OF NEWS BROADCASTS ON LOCAL
RADIO AND TELEVISION STATIONS. 

"THE AMOUNT, INTENSITY, AND DEROGATORY NATURE OF THE PUBLICITY
RECEIVED BY APPELLANT DURING THIS PERIOD IS WITHOUT PRECEDENT IN THE
STATE OF WASHINGTON.  A SEATTLE NEWSPAPER CARRIED A NEWS ITEM REPORTING
THAT THE SWITCHBOARD OF A LOCAL RADIO STATION THAT HAD BROADCAST THE
COMMITTEE PROCEEDINGS ON THE PRECEDING DAY WAS JAMMED WITH CALLS, AND
THAT THE OFFICIALS OF THE STATION CHARACTERIZED THE RESPONSE TO THE
BROADCAST ON THE PART OF THE PUBLIC AS 'ASTOUNDING,' AND THAT SUCH
RESPONSE WAS GREATER THAN THAT RESULTING FROM ANY OTHER BROADCAST EVER
AIRED BY THEM.  THE SERIOUS ACCUSATIONS MADE BY UNITED STATES SENATORS
IN THE COMMITTEE HEARINGS ARE GENERALLY REGARDED BY LAYMEN AS BEING
OFFICIALS CHARGES (WHICH APPELLANT HAD REFUSED TO ANSWER), AND THUS THE
IMPRESSION WAS CREATED AMONG THE GENERAL PUBLIC THAT APPELLANT HAD BEEN
FOUND GUILTY OF A CRIME."  56 WASH. 2D 474, 510-512, 349 P.2D 387,
408.    THE GRAND JURY WHICH RETURNED THE INDICTMENT WAS CONVENED ON
MAY 20, 1957. 

THE EFFECT OF THE SATURATION OF SEATTLE WITH THIS ADVERSE PUBLICITY
WAS SUMMARIZED BY JUDGE DONWORTH: 

"THE NATURAL EFFECT OF THIS PUBLICITY WAS THAT, IN THE EYES OF THE
AVERAGE CITIZEN, THE CHARACTER OF APPELLANT HAD BEEN THOROUGHLY
DISCREDITED IN THE SEATTLE AREA ON OR BEFORE MAY 20, 1957."  56 WASH.
2D, AT 512, 349 P.2D, AT 408. 

THE TRIAL COURT AT THE TIME OF THE SELECTION OF THE PETIT JURY
REFERRED TO THE PUBLICITY THE CASE HAD RECEIVED IN THE PAPERS AND OVER
THE RADIO AND TV AND SOUGHT TO DETERMINE WHETHER ANY JURORS HAD BECOME
PREJUDICED OR BIASED AGAINST THE ACCUSED.  THE JUDGE WHO IMPANELED THE
GRAND JURY TOOK NO SUCH PRECAUTIONS.  HE EXCUSED THREE WHO MIGHT HAVE
BEEN PREJUDICED BECAUSE THEY WERE OR HAD BEEN MEMBERS OF PETITIONER'S
UNION OR OF AFFILIATED UNIONS.  HE EXCUSED ONE EMPLOYER WHO IN REPLY TO
THE QUESTION "ARE YOU CONSCIOUS OF ANY BIAS, PREJUDICE OR SYMPATHY IN
THIS CASE AT ALL?"  SAID, "THAT IS PRETTY HARD TO ANSWER."  OF THE SIX
HE EXCUSED, TWO ADMITTED PREJUDICE.  NOT ONCE DID THE JUDGE INQUIRE AS
TO THE INTENSIVE ADVERSE PUBLICITY PETITIONER HAD RECEIVED AND ITS
LIKELY EFFECT ON EACH JUROR.  HE ASKED TWO TYPES OF QUESTIONS.  THE ONE
ALREADY NOTED, WHETHER THE JUROR WAS CONSCIOUS OF BIAS, ETC., AND THE
OTHER ONE, "IS THERE ANYTHING ABOUT SITTING ON THIS GRAND JURY THAT
MIGHT EMBARRASS YOU AT ALL?"  IT SEEMS TO ME THAT THE JUDGE WAS
DERELICT IN FAILING TO ASCERTAIN WHETHER THE AMOUNT OF ADVERSE
PUBLICITY PETITIONER HAD RECEIVED HAD PREJUDICED THE JURORS TOWARD THE
CASE ABOUT TO BE PRESENTED.  ALTHOUGH HE MADE NO SUCH INQUIRY OF ANY
JUROR, HE PROCEEDED UPON THE ASSUMPTION THAT THE GRAND JURY HAD FULL
KNOWLEDGE OF THE ACTIVITIES OF THE SENATE COMMITTEE: 

"WE COME NOW TO THE PURPOSE OF THIS GRAND JURY AND THE REASONS WHICH
THE JUDGES OF THIS COURT THOUGHT SUFFICIENT TO JUSTIFY THE EXPENSE TO
THE COUNTY, AND THE INCONVENIENCE TO AND SACRIFICE BY YOU, WHICH THIS
GRAND JURY SESSION WILL REQUIRE. 

"IT SEEMS UNNECESSARY TO REVIEW THE RECENT TESTIMONY BEFORE A SENATE
INVESTIGATING COMMITTEE EXCEPT TO SAY THAT DISCLOSURES HAVE BEEN MADE
INDICATING THAT OFFICERS OF THE TEAMSTERS UNION HAVE, THROUGH TRICK AND
DEVICE, EMBEZZLED OR STOLEN HUNDREDS OF THOUSANDS OF DOLLARS OF THE
FUNDS OF THAT UNION - MONEY WHICH HAD COME TO THE UNION FROM THE DUES
OF ITS MEMBERS.  IT HAS BEEN ALLEGED THAT MANY OF THESE TRANSACTIONS,
THROUGH WHICH THE MONEY WAS SIPHONED OUT OF THE UNION TREASURY,
OCCURRED IN KING COUNTY.  SUCH CRIMES IF COMMITTED, CANNOT BE PUNISHED
UNDER FEDERAL LAW, OR UNDER ANY LAW OTHER THAN THAT OF THE STATE OF
WASHINGTON, AND PROSECUTION MUST TAKE PLACE IN KING COUNTY.  THE
NECESSARY CRIMINAL CHARGES CAN ONLY BE BROUGHT IN THIS COUNTY UPON
INDICTMENT BY THE GRAND JURY OR INFORMATION FILED BY THE PROSECUTING
ATTORNEY. 

"THE PRESIDENT OF THE TEAMSTERS UNION HAS PUBLICLY DECLARED THAT THE
MONEY HE RECEIVED FROM THE UNION WAS A LOAN WHICH HE HAS REPAID.  THIS
PRESENTS A QUESTION OF FACT, THE TRUTH OF WHICH IS FOR YOU TO
ASCERTAIN. 

"YOU MAY FIND THAT MANY OF THE TRANSACTIONS HAPPENED MORE THAN THREE
YEARS AGO; THIS WOULD RAISE THE QUESTION OF THE STATUTE OF LIMITATIONS,
WHICH ORDINARILY BARS A PROSECUTION FOR LARCENY AFTER THREE YEARS. 
THERE ARE SOME INSTANCES, HOWEVER, WHERE THE PERIOD IS EXTENDED.  THIS
IS A QUESTION OF LAW AND YOU SHOULD BE GUIDED BY THE ADVICE OF THE
PROSECUTORS ON THIS AND SIMILAR QUESTIONS.  YOUR INVESTIGATION MAY
CONCEIVABLY RESULT IN THE ADOPTION OF BETTER STANDARDS OF CONDUCT FOR
UNION OFFICIALS." 

NO ADMONITION WAS GIVEN THAT RADIO, TELEVISION, AND NEWSPAPER REPORTS
WERE NOT THE GOSPEL.  NO WARNING WAS MADE THAT ONE WHO INVOKES THE
FIFTH AMENDMENT DOES NOT ADMIT GUILT.  NO ADMONITION WAS GIVEN THAT THE
DELIBERATIONS SHOULD BE FREE OF BIAS OR PREJUDICE.  THE QUESTION IS NOT
WHETHER ONE WHO RECEIVES LARGE-SCALE ADVERSE PUBLICITY CAN ESCAPE GRAND
JURY INVESTIGATION NOR WHETHER THE HUE AND CRY ATTENDANT ON ADVERSE
PUBLICITY MUST HAVE DIED DOWN BEFORE THE GRAND JURY CAN MAKE ITS
INVESTIGATION.  THIS CASE SHOWS THE NEED TO MAKE AS SURE AS IS HUMANLY
POSSIBLE THAT ONE AFTER WHOM THE MOB AND PUBLIC PASSION ARE IN FULL
PURSUIT IS TREATED FAIRLY, THAT THE GRAND JURY STANDS BETWEEN HIM AND
AN AROUSED PUBLIC, THAT THE JUDGE USES THE NECESSARY PROCEDURES TO
INSURE DISPASSIONATE CONSIDERATION OF THE CHARGE. 

THE STATE OF WASHINGTON USES THE GRAND JURY ONLY OCCASIONALLY, THE
NORMAL METHOD OF ACCUSATION BEING BY INFORMATION.  WHETHER GRAND JURORS
IN OTHER CASES ARE SCREENED FOR BIAS OR PREJUDICE DOES NOT APPEAR.  YET
ON THE ASSUMPTION THAT THEY ARE NOT, BECK'S OBJECTIONS SHOULD NOT BE IN
VAIN.  WHETHER THE UNFAIR DEVICE IS USED CUSTOMARILY OR ONLY ONCE, IT
DOES NOT COMPORT WITH THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. 

                            III. 

I THINK THE COURT IS CORRECT IN REJECTING THE GENERAL EQUAL
PROTECTION QUESTION ON THE MERITS.  BUT I DO THINK THAT A NARROW PHASE
OF EQUAL PROTECTION WAS RAISED AND SHOULD BE DECIDED IN PETITIONER'S
FAVOR.  (FN3)  IT IS CONCEDED THAT IF BECK HAD BEEN "IN CUSTODY OR HELD
TO ANSWER FOR AN OFFENSE" HE WOULD HAVE BEEN ENTITLED TO CHALLENGE THE
GRAND JURORS FOR PREJUDICE.  56 WASH. 2D, AT 479, 349 P.2D, AT 390.  TO
GRANT THAT CLASS THE RIGHT TO CHALLENGE FOR PREJUDICE AND TO DENY IT TO
THOSE WHO ARE MERELY UNDER INVESTIGATION IS TO DRAW A LINE NOT
WARRANTED BY THE REQUIREMENTS OF EQUAL PROTECTION.  I AGREE WITH THE
VIEWS OF JUDGE DONWORTH, WITH WHOM JUDGES FINLEY, HUNTER, AND ROSELLINI
CONCURRED: 

"I DO NOT UNDERSTAND HOW IT CAN BE SAID, UNDER THE FACTS SHOWN IN
THIS RECORD, THAT THE REASON ENTITLING A PERSON IN CUSTODY OR HELD TO
ANSWER FOR AN OFFENSE TO BE INVESTIGATED BY AN IMPARTIAL AND
UNPREJUDICED GRAND JURY, DOES NOT APPLY EQUALLY WELL TO APPELLANT.  IT
IS AXIOMATIC THAT ALL MEN ARE EQUAL BEFORE THE LAW AND ARE ENTITLED TO
THE SAME RIGHTS UNDER THE SAME OR SIMILAR CIRCUMSTANCES."  56 WASH. 2D,
AT 528, 349 P.2D, AT 418. 

FN1  SINCE PETITIONER WAS NOT REPRESENTED BY COUNSEL AT THE
IMPANELING OF THE GRAND JURY, HIS OBJECTION AT THE RETURN OF THE
INDICTMENT WAS TIMELY.  AS STATED IN CROWLEY V. UNITED STATES, 194 U.S.
461, 469-470: 

"SOME OF THE CASES HAVE GONE SO FAR AS TO HOLD THAT AN OBJECTION TO
THE PERSONAL QUALIFICATIONS OF GRAND JURORS IS NOT AVAILABLE FOR THE
ACCUSED UNLESS MADE BEFORE THE INDICTMENT IS RETURNED IN COURT.  SUCH A
RULE WOULD, IN MANY CASES, OPERATE TO DENY ALTOGETHER THE RIGHT OF AN
ACCUSED TO QUESTION THE QUALIFICATIONS OF THOSE WHO FOUND THE
INDICTMENT AGAINST HIM; FOR HE MAY NOT KNOW, INDEED, IS NOT ENTITLED,
OF RIGHT, TO KNOW, THAT HIS ACTS ARE THE SUBJECT OF EXAMINATION BY THE
GRAND JURY." 

FN2  SEE MORSE, A SURVEY OF THE GRAND JURY SYSTEM, 10 ORE.  L. REV.
217. 

FN3  THIS IS NOT A CASE WHERE DECISION IS ASKED ON A QUESTION NOT
"FORMALLY PRESENTED" BY THE PETITION FOR CERTIORARI, AS WAS TRUE IN
GENERAL PICTURES CO. V. ELECTRIC CO., 304 U.S. 175, 179.  IT APPEARS
FROM THE RECORD THAT THE QUESTION OF EQUAL PROTECTION WAS A "DEFINITE
ISSUE" DECIDED BY THE WASHINGTON SUPREME COURT (SEABOARD AIR LINE R.
CO. V. DUVALL, 225 U.S. 477, 487); AND IN AT LEAST TWO PLACES IN THE
QUESTIONS PRESENTED BY THE PETITION FOR CERTIORARI THAT DECISION WAS
CHALLENGED FOR DENIAL OF EQUAL PROTECTION.  THIS WAS CLEARLY
SUFFICIENT, AS RULE 23(1)(C), IN HAEC VERBA, DISCOURAGES DETAILED
AMPLIFICATION OF THE QUESTIONS PRESENTED: 

"THE QUESTIONS PRESENTED FOR REVIEW, EXPRESSED IN THE TERMS AND
CIRCUMSTANCES OF THE CASE BUT WITHOUT UNNECESSARY DETAIL.  THE
STATEMENT OF A QUESTION PRESENTED WILL BE DEEMED TO INCLUDE EVERY
SUBSIDIARY QUESTION FAIRLY COMPRISED THEREIN  ...  ." 

THE PETITION STATES, INTER ALIA: 

"1.  WHERE ACCUSATION IS BY A GRAND JURY INDICTMENT, DOES A PERSON
(IN THIS CASE A MEMBER AND OFFICER OF A LABOR UNION WHO AT THE TIME OF
THE GRAND JURY PROCEEDINGS WAS THE SUBJECT OF CONTINUOUS, EXTENSIVE AND
INTENSELY PREJUDICIAL PUBLICITY) HAVE A RIGHT UNDER THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT TO HAVE THE
CHARGES AND EVIDENCE CONSIDERED BY A GRAND JURY WHICH WAS FAIR AND
IMPARTIAL OR, AT LEAST, WHICH WAS INSTRUCTED AND DIRECTED TO ACT FAIRLY
AND IMPARTIALLY? 

"(A)  WHERE PETITIONER WAS A MEMBER AND OFFICER OF A LABOR UNION, AND
WHERE PREJUDICIAL AND INFLAMMATORY CHARGES AGAINST HIM WERE BEING
WIDELY AND INTENSIVELY DISSEMINATED BY ALL NEWS MEDIA, DID HE HAVE A
RIGHT UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT TO HAVE THE GRAND JURY IMPANELED IN A MANNER WHICH
WOULD PREVENT OR AT LEAST TEND TO PREVENT THE SELECTION OF BIASED AND
PREJUDICED GRAND JURORS?" 

THIS IS ENOUGH TO BRING THE CASE WITHIN OUR RULE THAT ONLY THE
QUESTIONS "URGED IN THE PETITION FOR CERTIORARI AND INCIDENTAL TO THEIR
DETERMINATION WILL BE CONSIDERED ON REVIEW."  RORICK V. DEVON
SYNDICATE, 307 U.S. 299, 303. 

AT LEAST FOUR OF THE JUDGES BELOW THOUGHT THAT THE EQUAL PROTECTION
POINT TREATED IN THIS DISSENT WAS AN ISSUE.  FOR AFTER REFERRING TO THE
WASHINGTON STATUTE WHICH GIVES THOSE IN CUSTODY OR HELD TO ANSWER FOR
AN OFFENSE THE RIGHT TO AN IMPARTIAL AND UNPREJUDICED GRAND JURY (56
WASH. 2D, AT 527-528, 349 P.2D, AT 417) THEY STATED:  "UNTIL THE
LEGISLATURE AMENDS OR REPEALS THE STATUTORY LAW, QUOTED AND EMPHASIZED
ABOVE, IT MUST BE APPLIED WITH EQUAL EFFECT TO EVERY PERSON WHOSE
CONDUCT IS UNDER INVESTIGATION BY A GRAND JURY PURSUANT TO THE COURT'S
CHARGE TO IT."  56 WASH. 2D, AT 530, 349 P.2D, AT 419.  THAT SEEMS TO
ME SUFFICIENT TO BRING THIS RULING WITHIN THE STATEMENT IN RALEY V.
OHIO, 360 U.S. 423, 436, TO THE EFFECT THAT "THERE CAN BE NO QUESTION
AS TO THE PROPER PRESENTATION OF A FEDERAL CLAIM WHEN THE HIGHEST STATE
COURT PASSES ON IT." 
..END :









GOLDBLATT V. TOWN OF HEMPSTEAD 369 U.S. 590 


NO. 78.  ARGUED JANUARY 15-16, 1962 - DECIDED MAY 14, 1962 - 9 N.Y.2D
101, 172 N.E.2D 562, AFFIRMED. 


THE INDIVIDUAL APPELLANT OWNED A 38-ACRE TRACT WITHIN THE TOWN OF
HEMPSTEAD ON WHICH THE CORPORATE APPELLANT HAD BEEN MINING SAND AND
GRAVEL CONTINUOUSLY SINCE 1927.  DURING THE FIRST YEAR THE EXCAVATION
REACHED THE WATER TABLE, LEAVING A WATER-FILLED CRATER WHICH HAD SINCE
BEEN WIDENED AND DEEPENED UNTIL IT BECAME A 20-ACRE LAKE WITH AN
AVERAGE DEPTH OF 25 FEET, AROUND WHICH THE TOWN HAD EXPANDED UNTIL,
WITHIN A RADIUS OF 3,500 FEET, THERE WERE MORE THAN 2,200 HOMES AND 4
PUBLIC SCHOOLS WITH A COMBINED ENROLLMENT OF 4,500 PUPILS.  IN 1958 THE
TOWN AMENDED ITS ORDINANCE REGULATING SUCH EXCAVATIONS SO AS TO
PROHIBIT ANY EXCAVATING BELOW THE WATER TABLE.  ALTHOUGH THIS
CONCEDEDLY PROHIBITED THE BENEFICIAL USE TO WHICH THE PROPERTY HAD
PREVIOUSLY BEEN DEVOTED, A STATE COURT GRANTED THE TOWN AN INJUNCTION
TO ENFORCE THIS PROHIBITION.  HELD:  ON THE RECORD IN THIS CASE,
APPELLANTS HAVE NOT SUSTAINED THE BURDEN OF SHOWING THAT THE DEPTH
LIMITATION IS SO ONEROUS AND UNREASONABLE AS TO RESULT IN A TAKING OF
THEIR PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  PP. 590-598. 

GOLDBLATT ET AL. V. TOWN OF HEMPSTEAD. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE TOWN OF HEMPSTEAD HAS ENACTED AN ORDINANCE REGULATING DREDGING
AND PIT EXCAVATING ON PROPERTY WITHIN ITS LIMITS.  APPELLANTS, WHO
ENGAGED IN SUCH OPERATIONS PRIOR TO THE ENACTMENT OF THE ORDINANCE,
CLAIM THAT IT IN EFFECT PREVENTS THEM FROM CONTINUING THEIR BUSINESS
AND THEREFORE TAKES THEIR PROPERTY WITHOUT DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  THE TRIAL COURT HELD THAT THE
ORDINANCE WAS A VALID EXERCISE OF THE TOWN'S POLICE POWER, 19 MISC. 2D
176, 189 N.Y.S.2D 577, AND THE APPELLATE DIVISION AFFIRMED, 9 APP. DIV.
2D 941, 196 N.Y.S.2D 573.  THE NEW YORK COURT OF APPEALS IN A DIVIDED
OPINION AFFIRMED.  9 N.Y.2D 101, 172 N.E.2D 562.  WE NOTED PROBABLE
JURISDICTION, 366 U.S. 942, AND HAVING HEARD ARGUMENT WE NOW AFFIRM THE
JUDGMENT. 

APPELLANT GOLDBLATT OWNS A 38-ACRE TRACT WITHIN THE TOWN OF
HEMPSTEAD.  AT THE TIME OF THE PRESENT LITIGATION APPELLANT BUILDERS
SAND AND GRAVEL CORPORATION WAS MINING SAND AND GRAVEL ON THIS LOT, A
USE TO WHICH THE LOT HAD BEEN PUT CONTINUOUSLY SINCE 1927.  BEFORE THE
END OF THE FIRST YEAR THE EXCAVATION HAD REACHED THE WATER TABLE
LEAVING A WATER-FILLED CRATER WHICH HAS BEEN WIDENED AND DEEPENED TO
THE POINT THAT IT IS NOW A 20-ACRE LAKE WITH AN AVERAGE DEPTH OF 25
FEET.  THE TOWN HAS EXPANDED AROUND THIS EXCAVATION, AND TODAY WITHIN A
RADIUS OF 3,500 FEET THERE ARE MORE THAN 2,200 HOMES AND FOUR PUBLIC
SCHOOLS WITH A COMBINED ENROLLMENT OF 4,500 PUPILS. 

THE PRESENT ACTION IS BUT ONE OF A SERIES OF STEPS UNDERTAKEN BY THE
TOWN IN AN EFFORT TO REGULATE MINING EXCAVATIONS WITHIN ITS LIMITS.  A
1945 ORDINANCE, NO. 16, PROVIDED THAT SUCH PITS MUST BE ENCLOSED BY A
WIRE FENCE AND COMPLY WITH CERTAIN BERM AND SLOPE REQUIREMENTS. 
ALTHOUGH APPELLANTS COMPLIED WITH THIS ORDINANCE, THE TOWN SOUGHT AN
INJUNCTION AGAINST FURTHER EXCAVATION AS BEING VIOLATIVE OF A ZONING
ORDINANCE.  THIS FAILED BECAUSE APPELLANTS WERE FOUND TO BE "CONDUCTING
A PRIOR NON-CONFORMING USE ON THE PREMISES  ...  ."  135 N.Y.L.J.,
ISSUE 52, P. 12 (1956).  THE TOWN DID NOT APPEAL. 

IN 1958 THE TOWN AMENDED ORDINANCE NO. 16 TO PROHIBIT ANY EXCAVATING
BELOW THE WATER TABLE (FN1) AND TO IMPOSE AN AFFIRMATIVE DUTY TO REFILL
ANY EXCAVATION PRESENTLY BELOW THAT LEVEL.  THE NEW AMENDMENT ALSO MADE
THE BERM, SLOPE, AND FENCE REQUIREMENTS MORE ONEROUS. 

IN 1959 THE TOWN BROUGHT THE PRESENT ACTION TO ENJOIN FURTHER MINING
BY THE APPELLANTS ON THE GROUNDS THAT THEY HAD NOT COMPLIED WITH THE
ORDINANCE, AS AMENDED, NOR ACQUIRED A MINING PERMIT AS REQUIRED BY IT.
(FN2)  APPELLANTS CONTENDED, INTER ALIA, THAT THE ORDINANCE WAS
UNCONSTITUTIONAL BECAUSE (1) IT WAS NOT REGULATORY OF THEIR BUSINESS
BUT COMPLETELY PROHIBITORY AND CONFISCATED THEIR PROPERTY WITHOUT
COMPENSATION, (2) IT DEPRIVED THEM OF THE BENEFIT OF THE FAVORABLE
JUDGMENT ARISING FROM THE PREVIOUS ZONING LITIGATION, AND (3) IT
CONSTITUTED EX POST FACTO LEGISLATION.  HOWEVER, THE TRIAL COURT DID
NOT AGREE, AND THE APPELLANTS WERE ENJOINED FROM CONDUCTING FURTHER
OPERATIONS ON THE LOT UNTIL THEY HAD OBTAINED A PERMIT AND HAD COMPLIED
WITH THE NEW PROVISIONS OF ORDINANCE NO. 16. 

CONCEDEDLY THE ORDINANCE COMPLETELY PROHIBITS A BENEFICIAL USE TO
WHICH THE PROPERTY HAS PREVIOUSLY BEEN DEVOTED.  HOWEVER, SUCH A
CHARACTERIZATION DOES NOT TELL US WHETHER OR NOT THE ORDINANCE IS
UNCONSTITUTIONAL.  IT IS AN OFT-REPEATED TRUISM THAT EVERY REGULATION
NECESSARILY SPEAKS AS A PROHIBITION.  IF THIS ORDINANCE IS OTHERWISE A
VALID EXERCISE OF THE TOWN'S POLICE POWERS, THE FACT THAT IT DEPRIVES
THE PROPERTY OF ITS MOST BENEFICIAL USE DOES NOT RENDER IT
UNCONSTITUTIONAL.  WALLS V. MIDLAND CARBON CO., 254 U.S. 300 (1920);
HADACHECK V. SEBASTIAN, 239 U.S. 394 (1915); REINMAN V. LITTLE ROCK,
237 U.S. 171 (1915); MUGLER V. KANSAS, 123 U.S. 623 (1887); SEE LAUREL
HILL CEMETERY V. SAN FRANCISCO, 216 U.S. 358 (1910).  AS POINTED OUT IN
MUGLER V. KANSAS, SUPRA, AT 668-669:

"THE PRESENT CASE MUST BE GOVERNED BY PRINCIPLES THAT DO NOT INVOLVE
THE POWER OF EMINENT DOMAIN, IN THE EXERCISE OF WHICH PROPERTY MAY NOT
BE TAKEN FOR PUBLIC USE WITHOUT COMPENSATION.  A PROHIBITION SIMPLY
UPON THE USE OF PROPERTY FOR PURPOSES THAT ARE DECLARED, BY VALID
LEGISLATION, TO BE INJURIOUS TO THE HEALTH, MORALS, OR SAFETY OF THE
COMMUNITY, CANNOT, IN ANY JUST SENSE, BE DEEMED A TAKING OR AN
APPROPRIATION OF PROPERTY FOR THE PUBLIC BENEFIT.  SUCH LEGISLATION
DOES NOT DISTURB THE OWNER IN THE CONTROL OR USE OF HIS PROPERTY FOR
LAWFUL PURPOSES, NOR RESTRICT HIS RIGHT TO DISPOSE OF IT, BUT IS ONLY A
DECLARATION BY THE STATE THAT ITS USE BY ANY ONE, FOR CERTAIN FORBIDDEN
PURPOSES, IS PREJUDICIAL TO THE PUBLIC INTERESTS  ...  .  THE POWER
WHICH THE STATES HAVE OF PROHIBITING SUCH USE BY INDIVIDUALS OF THEIR
PROPERTY AS WILL BE PREJUDICIAL TO THE HEALTH, THE MORALS, OR THE
SAFETY OF THE PUBLIC, IS NOT - AND, CONSISTENTLY WITH THE EXISTENCE AND
SAFETY OF ORGANIZED SOCIETY, CANNOT BE - BURDENED WITH THE CONDITION
THAT THE STATE MUST COMPENSATE SUCH INDIVIDUAL OWNERS FOR PECUNIARY
LOSSES THEY MAY SUSTAIN, BY REASON OF THEIR NOT BEING PERMITTED, BY
NOXIOUS USE OF THEIR PROPERTY, TO INFLICT INJURY UPON THE COMMUNITY." 

NOR IS IT OF CONTROLLING SIGNIFICANCE THAT THE "USE" PROHIBITED HERE
IS OF THE SOIL ITSELF AS OPPOSED TO A "USE" UPON THE SOIL, CF. UNITED
STATES V. CENTRAL EUREKA MINING CO., 357 U.S. 155 (1958), OR THAT THE
USE PROHIBITED IS ARGUABLY NOT A COMMON-LAW NUISANCE, E.G., REINMAN V.
LITTLE ROCK, SUPRA. 

THIS IS NOT TO SAY, HOWEVER, THAT GOVERNMENTAL ACTION IN THE FORM OF
REGULATION CANNOT BE SO ONEROUS AS TO CONSTITUTE A TAKING WHICH
CONSTITUTIONALLY REQUIRES COMPENSATION.  PENNSYLVANIA COAL CO. V.
MAHON, 260 U.S. 393 (1922); SEE UNITED STATES V. CENTRAL EUREKA MINING
CO., SUPRA.  THERE IS NO SET FORMULA TO DETERMINE WHERE REGULATION ENDS
AND TAKING BEGINS.  ALTHOUGH A COMPARISON OF VALUES BEFORE AND AFTER IS
RELEVANT, SEE PENNSYLVANIA COAL CO. V. MAHON, SUPRA, IT IS BY NO MEANS
CONCLUSIVE, SEE HADACHECK V. SEBASTIAN, SUPRA, WHERE A DIMINUTION IN
VALUE FROM $800,000 TO $60,000 WAS UPHELD.  HOW FAR REGULATION MAY GO
BEFORE IT BECOMES A TAKING WE NEED NOT NOW DECIDE, FOR THERE IS NO
EVIDENCE IN THE PRESENT RECORD WHICH EVEN REMOTELY SUGGESTS THAT
PROHIBITION OF FURTHER MINING WILL REDUCE THE VALUE OF THE LOT IN
QUESTION.  (FN3)  INDULGING IN THE USUAL PRESUMPTION OF
CONSTITUTIONALITY, INFRA, P. 596, WE FIND NO INDICATION THAT THE
PROHIBITORY EFFECT OF ORDINANCE NO. 16 IS SUFFICIENT TO RENDER IT AN
UNCONSTITUTIONAL TAKING IF IT IS OTHERWISE A VALID POLICE REGULATION. 

THE QUESTION, THEREFORE, NARROWS TO WHETHER THE PROHIBITION OF
FURTHER EXCAVATION BELOW THE WATER TABLE IS A VALID EXERCISE OF THE
TOWN'S POLICE POWER.  THE TERM "POLICE POWER" CONNOTES THE TIME-TESTED
CONCEPTIONAL LIMIT OF PUBLIC ENCROACHMENT UPON PRIVATE INTERESTS. 
EXCEPT FOR THE SUBSTITUTION OF THE FAMILIAR STANDARD OF
"REASONABLENESS," THIS COURT HAS GENERALLY REFRAINED FROM ANNOUNCING
ANY SPECIFIC CRITERIA.  THE CLASSIC STATEMENT OF THE RULE IN LAWTON V.
STEELE, 152 U.S. 133, 137 (1894), IS STILL VALID TODAY: 

"TO JUSTIFY THE STATE IN  ... INTERPOSING ITS AUTHORITY IN BEHALF OF
THE PUBLIC, IT MUST APPEAR, FIRST, THAT THE INTERESTS OF THE PUBLIC
...  REQUIRE SUCH INTERFERENCE; AND, SECOND, THAT THE MEANS ARE
REASONABLY NECESSARY FOR THE ACCOMPLISHMENT OF THE PURPOSE, AND NOT
UNDULY OPPRESSIVE UPON INDIVIDUALS." 

EVEN THIS RULE IS NOT APPLIED WITH STRICT PRECISION, FOR THIS COURT
HAS OFTEN SAID THAT "DEBATABLE QUESTIONS AS TO REASONABLENESS ARE NOT
FOR THE COURTS BUT FOR THE LEGISLATURE  ...  ."  E.G., SPROLES V.
BINFORD, 286 U.S. 374, 388 (1932). 

THE ORDINANCE IN QUESTION WAS PASSED AS A SAFETY MEASURE, AND THE
TOWN IS ATTEMPTING TO UPHOLD IT ON THAT BASIS.  TO EVALUATE ITS
REASONABLENESS WE THEREFORE NEED TO KNOW SUCH THINGS AS THE NATURE OF
THE MENACE AGAINST WHICH IT WILL PROTECT, THE AVAILABILITY AND
EFFECTIVENESS OF OTHER LESS DRASTIC PROTECTIVE STEPS, AND THE LOSS
WHICH APPELLANTS WILL SUFFER FROM THE IMPOSITION OF THE ORDINANCE. 

A CAREFUL EXAMINATION OF THE RECORD REVEALS A DEARTH OF RELEVANT
EVIDENCE ON THESE POINTS.  ONE FAIR INFERENCE ARISING FROM THE EVIDENCE
IS THAT SINCE A FEW HOLES HAD BEEN BURROWED UNDER THE FENCE SURROUNDING
THE LAKE IT MIGHT BE ATTRACTIVE AND DANGEROUS TO CHILDREN.  BUT THERE
WAS NO INDICATION WHETHER THE LAKE AS IT STOOD WAS AN ACTUAL DANGER TO
THE PUBLIC OR WHETHER DEEPENING THE LAKE WOULD INCREASE THE DANGER.  IN
TERMS OF DOLLARS OR SOME OTHER OBJECTIVE STANDARD, THERE WAS NO SHOWING
HOW MUCH, IF ANYTHING, THE IMPOSITION OF THE ORDINANCE WOULD COST THE
APPELLANTS.  IN SHORT, THE EVIDENCE PRODUCED IS CLEARLY INDECISIVE ON
THE REASONABLENESS OF PROHIBITING FURTHER EXCAVATION BELOW THE WATER
TABLE. 

ALTHOUGH ONE COULD IMAGINE THAT PREVENTING FURTHER DEEPENING OF A
POND ALREADY 25 FEET DEEP WOULD HAVE A DE MINIMIS EFFECT ON PUBLIC
SAFETY, WE CANNOT SAY THAT SUCH A CONCLUSION IS COMPELLED BY FACTS OF
WHICH WE CAN TAKE NOTICE.  EVEN IF WE COULD DRAW SUCH A CONCLUSION, WE
WOULD BE UNABLE TO SAY THE ORDINANCE IS UNREASONABLE; FOR ALL WE KNOW,
THE ORDINANCE MAY HAVE A DE MINIMIS EFFECT ON APPELLANTS.  OUR PAST
CASES LEAVE NO DOUBT THAT APPELLANTS HAD THE BURDEN ON
"REASONABLENESS."  E.G., BIBB V. NAVAJO FREIGHT LINES, 359 U.S. 520,
529 (1959)(EXERCISE OF POLICE POWER IS PRESUMED TO BE CONSTITUTIONALLY
VALID); SALSBURG V. MARYLAND, 346 U.S. 545, 553 (1954)(THE PRESUMPTION
OF REASONABLENESS IS WITH THE STATE); UNITED STATES V. CAROLENE
PRODUCTS CO., 304 U.S. 144 (1938)(EXERCISE OF POLICE POWER WILL BE
UPHELD IF ANY STATE OF FACTS EITHER KNOWN OR WHICH COULD BE REASONABLY
ASSUMED AFFORDS SUPPORT FOR IT).  THIS BURDEN NOT HAVING BEEN MET, THE
PROHIBITION OF EXCAVATION ON THE 20-ACRE-LAKE TRACT MUST STAND AS A
VALID POLICE REGULATION. 

WE NOW TURN OUR ATTENTION TO THE REMAINDER OF THE LOT, THE 18 ACRES
SURROUNDING THE PRESENT PIT WHICH HAVE NOT YET BEEN MINED OR
EXCAVATED.  APPELLANTS THEMSELVES CONTEND THAT THIS AREA CANNOT BE
MINED.  THEY SAY THAT THIS SURFACE SPACE IS NECESSARY FOR THE
PROCESSING OPERATIONS INCIDENT TO MINING AND THAT NO OTHER SPACE IS
OBTAINABLE.  THIS WAS URGED AS AN IMPORTANT FACTOR IN THEIR CONTENTION
THAT UPHOLDING THE DEPTH LIMITATION OF THE ORDINANCE WOULD CONFISCATE
THE ENTIRE MINING UTILITY OF THEIR PROPERTY.  HOWEVER, WE HAVE UPHELD
THE VALIDITY OF THE PROHIBITION EVEN ON THAT SUPPOSITION.  IF THE DEPTH
LIMITATION IN RELATION TO DEEPENING THE EXISTING PIT IS VALID, IT
FOLLOWS A FORTIORI THAT THE LIMITATION IS CONSTITUTIONALLY PERMISSIBLE
AS APPLIED TO PREVENT THE CREATION OF NEW PITS.  WE ALSO NOTE THAT EVEN
IF APPELLANTS WERE ABLE TO OBTAIN SUITABLE PROCESSING SPACE THE GEOLOGY
OF THE 18-ACRE TRACT WOULD PREVENT ANY EXCAVATION.  THE WATER TABLE,
APPELLANTS ADMIT, IS TOO CLOSE TO THE GROUND SURFACE TO PERMIT
COMMERCIAL MINING IN THE FACE OF THE DEPTH RESTRICTIONS OF THE
ORDINANCE.  THE IMPOSSIBILITY OF FURTHER MINING MAKES IT UNNECESSARY
FOR US TO DECIDE TO WHAT EXTENT THE BERM AND SLOPE OF SUCH EXCAVATION
COULD BE LIMITED BY THE ORDINANCE. 

APPELLANTS' OTHER CONTENTIONS WARRANT ONLY A PASSING WORD.  THE CLAIM
THAT RIGHTS ACQUIRED IN PREVIOUS LITIGATION ARE BEING UNDERMINED IS
COMPLETELY UNFOUNDED.  A SUCCESSFUL DEFENSE TO THE IMPOSITION OF ONE
REGULATION DOES NOT ERECT A CONSTITUTIONAL BARRIER TO ALL OTHER
REGULATION.  THE FIRST SUIT WAS BROUGHT TO ENFORCE A ZONING ORDINANCE,
WHILE THE PRESENT ONE IS TO ENFORCE A SAFETY ORDINANCE.  IN FACT NO
RELEVANT ISSUES PRESENTED HERE WERE DECIDED IN THE FIRST SUIT.  (FN4)
WE THEREFORE DO NOT NEED TO CONSIDER TO WHAT EXTENT SUCH ISSUES WOULD
HAVE COME UNDER THE PROTECTIVE WING OF DUE PROCESS. 

APPELLANTS ALSO CONTEND THAT THE ORDINANCE IS UNCONSTITUTIONAL
BECAUSE IT IMPOSES UNDER PENALTY OF FINE AND IMPRISONMENT SUCH
AFFIRMATIVE DUTIES AS REFILLING THE EXISTING EXCAVATION AND THE
CONSTRUCTION OF A NEW FENCE.  THIS CLAIM IS FOUNDED PRINCIPALLY ON THE
CONSTITUTIONAL PROHIBITIONS AGAINST BILLS OF ATTAINDER AND EX POST
FACTO LEGISLATION.  (FN5)  THESE PROVISIONS ARE SEVERABLE, BOTH IN
NATURE AND BY EXPRESS DECLARATION, FROM THE PROHIBITION AGAINST FURTHER
EXCAVATION.  SINCE ENFORCEMENT OF THESE PROVISIONS WAS NOT SOUGHT IN
THE PRESENT LITIGATION, THIS COURT UNDER WELL-ESTABLISHED PRINCIPLES
WILL NOT AT THIS TIME UNDERTAKE TO DECIDE THEIR CONSTITUTIONALITY. 
E.G., OHIO TAX CASES, 232 U.S. 576, 594 (1914); CF. UNITED STATES V.
RAINES, 362 U.S. 17 (1960).  THAT DETERMINATION MUST AWAIT ANOTHER
DAY.  WE PASS ONLY ON THE PROVISIONS OF THE ORDINANCE HERE INVOKED, NOT
ON PROBABILITIES NOT NOW BEFORE US, AND TO THAT EXTENT THE JUDGMENT IS
AFFIRMED. 

FN1  SPECIFICALLY THE ORDINANCE PROVIDES THAT "NO EXCAVATION SHALL BE
MADE BELOW TWO FEET ABOVE THE MAXIMUM GROUND WATER LEVEL AT THE SITE." 

FN2  UNDER THE ORDINANCE THE TOWN MAY DENY A PERMIT IF THE PROPOSED
EXCAVATION WILL VIOLATE ANY OF THE PROVISIONS OF THE ORDINANCE.    FN3
THERE IS A SIMILAR SCARCITY OF EVIDENCE RELATIVE TO THE VALUE OF THE
PROCESSING MACHINERY IN THE EVENT MINING OPERATIONS WERE SHUT DOWN. 

FN4  ALTHOUGH IT WAS ADJUDICATED THAT AT THAT TIME APPELLANTS HAD
MADE SUBSTANTIAL IMPROVEMENTS ON THE LOT, THIS FACT WOULD NOT BE
INDICATIVE OF THE LOSS APPELLANTS WOULD PRESENTLY SUFFER IF THE MINE
WERE CLOSED; PERHAPS THE IMPROVEMENTS ARE COMMERCIALLY SALABLE. 

FN5  THE APPELLEE ASSERTS THAT THESE GROUNDS WERE NOT PROPERLY
PRESERVED BELOW.  DUE TO OUR DISPOSITION OF THESE ARGUMENTS, IT IS
UNNECESSARY TO REACH THIS QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 
MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS
CASE. 
..END :













HUTCHESON V. UNITED STATES 369 U.S. 599 


NO. 46.  ARGUED NOVEMBER 6, 1961 - DECIDED MAY 14, 1962 - 109 U.S. APP.
D.C. 200, 285 F.2D 280, AFFIRMED. 


SUMMONED TO TESTIFY BEFORE THE SENATE SELECT COMMITTEE ON IMPROPER
ACTIVITIES IN THE LABOR OR MANAGEMENT FIELD, WHICH WAS SEEKING
INFORMATION TO AID IN DRAFTING AND ADOPTING LEGISLATION TO CURB MISUSE
OF UNION FUNDS BY UNION OFFICIALS, PETITIONER, PRESIDENT OF A LABOR
UNION, REFUSED TO ANSWER 18 QUESTIONS PERTAINING TO THE USE OF UNION
FUNDS IN AN ATTEMPT TO FORESTALL AN INDICTMENT IN LAKE COUNTY, INDIANA,
FOR THE ALLEGED BRIBERY OF A STATE OFFICIAL IN CONNECTION WITH A SALE
OF LAND TO THE STATE.  HE DISCLAIMED ANY INTENTION TO RELY ON HIS
PRIVILEGE AGAINST SELF-INCRIMINATION; BUT HE CLAIMED THAT THE QUESTIONS
WERE NOT PERTINENT TO ANY ACTIVITY WHICH THE COMMITTEE WAS AUTHORIZED
TO INVESTIGATE, THAT THEY WERE ASKED FOR PURPOSES OF "EXPOSURE" AND
THAT THEY MIGHT AID THE PROSECUTION OF CRIMINAL CHARGES THEN PENDING
AGAINST HIM IN A STATE COURT AND THUS VIOLATE HIS RIGHTS UNDER THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  THESE OBJECTIONS WERE
OVERRULED; BUT PETITIONER PERSISTED IN HIS REFUSAL TO ANSWER.  FOR SUCH
REFUSAL, HE WAS CONVICTED OF A VIOLATION OF 2 U.S.C. SEC. 192, WHICH
MAKES IT A MISDEMEANOR FOR ANY PERSON SUMMONED AS A WITNESS BY EITHER
HOUSE OF CONGRESS OR A COMMITTEE THEREOF TO REFUSE TO ANSWER ANY
QUESTION PERTINENT TO THE QUESTION UNDER INQUIRY.  HELD:  THE QUESTIONS
WHICH PETITIONER REFUSED TO ANSWER WERE CLEARLY WITHIN THE PROPER SCOPE
OF THE COMMITTEE'S INQUIRY; THE RECORD DOES NOT SUPPORT A CONCLUSION
THAT THEY WERE ASKED MERELY FOR THE SAKE OF "EXPOSURE" OR TO AID IN THE
PENDING STATE CRIMINAL TRIAL; THE MERE FACT THAT ANSWERS TO THE
QUESTIONS MIGHT HAVE BEEN USED AGAINST PETITIONER IN THE PENDING STATE
CRIMINAL TRIAL DID NOT MAKE THIS CONVICTION VIOLATIVE OF THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT; AND THE CONVICTION IS
SUSTAINED.  PP. 600-628. 

HUTCHESON V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH MR. JUSTICE CLARK AND MR. JUSTICE STEWART JOIN. 

AFTER A TRIAL WITHOUT A JURY, PETITIONER WAS FOUND GUILTY ON ALL 18
COUNTS OF AN INDICTMENT CHARGING HIM WITH HAVING VIOLATED 2 U.S.C. SEC.
192 (FN1) BY REFUSING TO ANSWER PERTINENT QUESTIONS PUT TO HIM ON JUNE
27, 1958, BY THE SENATE SELECT COMMITTEE ON IMPROPER ACTIVITIES IN THE
LABOR OR MANAGEMENT FIELD, COMMONLY KNOWN AS THE MCCLELLAN COMMITTEE. 
HE WAS SENTENCED TO SIX MONTHS' IMPRISONMENT AND FINED $500.  THE
JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS, WITHOUT OPINION.  WE
GRANTED CERTIORARI TO CONSIDER PETITIONER'S CONSTITUTIONAL CHALLENGES
TO HIS CONVICTION.  365 U.S. 866. 

THE MCCLELLAN COMMITTEE WAS ESTABLISHED BY THE SENATE IN 1957: 

"TO CONDUCT AN INVESTIGATION AND STUDY OF THE EXTENT TO WHICH
CRIMINAL OR OTHER IMPROPER PRACTICES OR ACTIVITIES ARE, OR HAVE BEEN,
ENGAGED IN IN THE FIELD OF LABOR-MANAGEMENT RELATIONS OR IN GROUPS OR
ORGANIZATIONS OF EMPLOYEES OR EMPLOYERS TO THE DETRIMENT OF THE
INTERESTS OF THE PUBLIC, EMPLOYERS OR EMPLOYEES, AND TO DETERMINE
WHETHER ANY CHANGES ARE REQUIRED IN THE LAWS OF THE UNITED STATES IN
ORDER TO PROTECT SUCH INTERESTS AGAINST THE OCCURRENCE OF SUCH
PRACTICES OR ACTIVITIES."  S. RES. 74, 85TH CONG., 1ST SESS. (1957). 
(FN2) 

PURSUING AN INVESTIGATIVE PATTERN WHICH IN 1957 AND THE FOREPART OF
1958 HAD DISCLOSED MISUSE OF UNION FUNDS FOR THE PERSONAL BENEFIT OF
VARIOUS UNION OFFICIALS, (FN3) THE COMMITTEE ON JUNE 4, 1958, BEGAN
HEARINGS AT WASHINGTON, D.C., INTO THE AFFAIRS OF VARIOUS
ORGANIZATIONS, INCLUDING THE UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA OF WHICH THE PETITIONER WAS PRESIDENT.  INITIALLY,
THE COMMITTEE SOUGHT TO INQUIRE INTO THE PERSONAL FINANCIAL INTERESTS
OF PETITIONER AND OTHER OFFICIALS OF THE CARPENTERS UNION IN THE WORLD
WIDE PRESS, A NEW YORK PUBLISHING HOUSE OWNED BY ONE MAXWELL RADDOCK,
WHICH WAS PUBLISHER OF THE "TRADE UNION COURIER."  MORE ESPECIALLY THE
COMMITTEE WISHED TO LEARN WHETHER UNION FUNDS HAD BEEN MISUSED IN THE
PUBLICATION BY THE PRESS OF A BIOGRAPHY OF PETITIONER'S FATHER,
ENTITLED "THE PORTRAIT OF AN AMERICAN LABOR LEADER, WILLIAM L.
HUTCHESON."  SENATOR MCCLELLAN, CHAIRMAN OF THE COMMITTEE, ANNOUNCED
THAT THE PETITIONER AND RADDOCK WOULD BOTH BE CALLED TO TESTIFY. 
(FN4) 

ON JUNE 25 RADDOCK TESTIFIED AS TO THE AFFAIRS OF THE "TRADE UNION
COURIER" AND THE PUBLICATION OF THE HUTCHESON BOOK.  (FN5)  ON THE
FOLLOWING DAY, HOWEVER, HE CLAIMED THE FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION WITH RESPECT TO ANOTHER MATTER TO WHICH THE
COMMITTEE HAD TURNED.  THAT MATTER RELATED TO THE POSSIBLE USE OF UNION
FUNDS OR INFLUENCE TO "FIX" A 1957 CRIMINAL INVESTIGATION, CONDUCTED IN
LAKE COUNTY, INDIANA, BY A STATE GRAND JURY, INTO AN ALLEGED SCHEME TO
DEFRAUD THE STATE OF INDIANA, IN WHICH PETITIONER AND TWO OTHER
OFFICIALS OF THE CARPENTERS UNION, O. WILLIAM BLAIER AND FRANK M.
CHAPMAN, WERE ALLEGEDLY IMPLICATED. 

THE ALLEGED SCHEME TO DEFRAUD HAD BEEN REVEALED IN TESTIMONY GIVEN
BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON PUBLIC WORKS DURING
MAY AND JUNE 1957.  THAT TESTIMONY HAD DISCLOSED THAT IN JUNE 1956 THE
PETITIONER, BLAIER, AND CHAPMAN HAD TOGETHER BOUGHT, IN THEIR
INDIVIDUAL CAPACITIES, CERTAIN REAL PROPERTY IN LAKE COUNTY FOR
$20,000, AND HAD SHORTLY THEREAFTER SOLD IT, AT A PROFIT OF $78,000, TO
THE STATE OF INDIANA FOR HIGHWAY CONSTRUCTION PURPOSES, PURSUANT TO AN
AGREEMENT WHEREBY A DEPUTY IN THE INDIANA RIGHT-OF-WAY DEPARTMENT WAS
PAID ONE-FIFTH OF THAT PROFIT.  (FN6)  THE ENSUING GRAND JURY
PROCEEDING HAD BEEN TERMINATED IN AUGUST 1957 WITHOUT ANY INDICTMENT
HAVING BEEN FOUND, WITH AN ANNOUNCEMENT BY THE COUNTY PROSECUTOR, METRO
HOLOVACHKA, THAT "JURISDICTION" OVER THE MATTER WAS LACKING IN LAKE
COUNTY, AND THAT THE ENTIRE $78,000 PROFIT HAD BEEN RETURNED TO THE
STATE.  THEREAFTER, IN FEBRUARY 1958, THE PETITIONER, BLAIER, AND
CHAPMAN WERE INDICTED IN ADJOINING MARION COUNTY ON THIS TRANSACTION. 
(FN7) 

IT IS APPARENT FROM THE QUESTIONING OF RADDOCK BY THE CHIEF COUNSEL
FOR THE MCCLELLAN COMMITTEE THAT THE COMMITTEE HAD INFORMATION
INDICATING THAT RADDOCK, THE PETITIONER, BLAIER, AND SEVERAL OFFICIALS
OF THE TEAMSTERS UNION HAD BEEN INVOLVED IN A PLAN WHEREBY HOLOVACHKA
HAD BEEN INDUCED TO DROP THE LAKE COUNTY GRAND JURY INVESTIGATION, AND
COMMITTEE COUNSEL EXPLAINED TO RADDOCK THAT THE COMMITTEE WAS
INTERESTED TO LEARN WHETHER UNION FUNDS OR INFLUENCE HAD BEEN USED FOR
THAT PURPOSE.  (FN8) 

IN ADDITION TO RADDOCK, WHOSE SELF-INCRIMINATION PLEA WITH RESPECT TO
ALL QUESTIONS RELATING TO THAT EPISODE WAS RESPECTED BY THE COMMITTEE,
BLAIER, AND TWO WITNESSES CONNECTED WITH AN INDIANA LOCAL OF THE
TEAMSTERS UNION, MICHAEL SAWOCHKA ITS SECRETARY-TREASURER AND JOSEPH P.
SULLIVAN ITS ATTORNEY, WERE ALSO EXAMINED BEFORE THE COMMITTEE ON JUNE
26.  SAWOCHKA AND SULLIVAN EACH REFUSED TO ANSWER ANY QUESTIONS
RELATING TO THE TERMINATION OF THE LAKE COUNTY GRAND JURY PROCEEDINGS,
SAWOCHKA BASING HIS REFUSAL ON THE FIFTH AMENDMENT PRIVILEGE AGAINST
SELF-INCRIMINATION, AND SULLIVAN INVOKING THE ATTORNEY-CLIENT PRIVILEGE
INSOFAR AS THE QUESTIONS RELATED TO ANY DISCUSSIONS WITH SAWOCHKA. 
BOTH CLAIMS WERE HONORED BY THE COMMITTEE. 

BLAIER, WHO WAS ASKED NO QUESTIONS REGARDING THE LAKE COUNTY REAL
ESTATE TRANSACTION ITSELF, (FN9) REFUSED TO ANSWER THE QUESTION WHETHER
HE HAD MADE "ANY ARRANGEMENTS FOR MR. MAX RADDOCK TO FIX ANY CASE FOR
YOU IN INDIANA."  HE ASSERTED THAT THE QUESTION "RELATES SOLELY TO A
PERSONAL MATTER, NOT PERTINENT TO ANY ACTIVITY WHICH THIS COMMITTEE IS
AUTHORIZED TO INVESTIGATE AND  ...  IT MIGHT AID THE PROSECUTION IN THE
CASE IN WHICH I AM UNDER INDICTMENT."  THE COMMITTEE CHAIRMAN, WITHOUT
RULING ON THE OBJECTION, STATED THAT THE WITNESS MIGHT CLAIM THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  ALTHOUGH BLAIER DID NOT
THEREAFTER DO SO, HE WAS NEVER DIRECTED BY THE COMMITTEE TO ANSWER THIS
QUESTION.  (FN10) 

THE LAST WITNESS WHO WAS EXAMINED BY THE COMMITTEE ON THIS PHASE OF
ITS INVESTIGATION WAS THE PETITIONER, WHO WAS CALLED ON JUNE 27.  HE
ANSWERED QUESTIONS CONCERNING THE PUBLICATION BY RADDOCK OF THE
BIOGRAPHY OF PETITIONER'S FATHER, COMMISSIONED BY THE CARPENTERS UNION
AT A TOTAL EXPENSE OF $310,000.  WHEN THE INQUIRY TURNED TO THE SUBJECT
OF THE LAKE COUNTY GRAND JURY INVESTIGATION, HOWEVER, PETITIONER
REFUSED TO ANSWER ANY QUESTIONS.  BEING UNDER THE SAME INDICTMENT AS
BLAIER AND REPRESENTED BY THE SAME COUNSEL, PETITIONER'S GROUNDS FOR
REFUSAL WERE THE SAME AS THOSE WHICH HAD BEEN ADVANCED THE DAY BEFORE
BY BLAIER:  "IT (THE QUESTION) RELATES SOLELY TO A PERSONAL MATTER, NOT
PERTINENT TO ANY ACTIVITY WHICH THIS COMMITTEE IS AUTHORIZED TO
INVESTIGATE, AND ALSO IT RELATES OR MIGHT BE CLAIMED TO RELATE TO OR
AID THE PROSECUTION IN THE CASE IN WHICH I AM UNDER INDICTMENT AND THUS
BE IN DENIAL OF DUE PROCESS OF LAW."  (FN11)  NO CLAIM OF THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION WAS MADE AT ANY STAGE. 
THIS OBJECTION, UPON WHICH THE PETITIONER STOOD THROUGHOUT THIS PHASE
OF HIS INTERROGATION, WAS OVERRULED BY THE COMMITTEE, AND PETITIONER
WAS DIRECTED, AND REFUSED TO ANSWER, EACH OF THE 18 QUESTIONS
CONSTITUTING THE SUBJECT MATTER OF THE INDICTMENT UPON WHICH HE HAS
BEEN CONVICTED.  (FN12) 

THE MANY ARGUMENTS NOW MADE TO US IN SUPPORT OF REVERSAL ARE
REDUCIBLE TO TWO CONSTITUTIONAL CHALLENGES.  FIRST, IT IS CONTENDED
THAT QUESTIONING PETITIONER ON ANY MATTERS GERMANE TO THE STATE
CRIMINAL CHARGES THEN PENDING AGAINST HIM WAS OFFENSIVE TO THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  SECOND, IT IS ARGUED THAT THE
COMMITTEE INVADED DOMAINS CONSTITUTIONALLY RESERVED TO THE EXECUTIVE
AND THE JUDICIARY, IN THAT ITS INQUIRY WAS SIMPLY AIMED AT PETITIONER'S
"EXPOSURE" AND SERVED NO LEGISLATIVE PURPOSE.  FOR REASONS NOW TO BE
DISCUSSED WE DECIDE THAT NEITHER CHALLENGE IS AVAILING. 

                                  I.

                  DUE PROCESS. 

THE COMMITTEE'S INTERROGATION IS SAID TO HAVE BEEN FUNDAMENTALLY
UNFAIR IN TWO RESPECTS: (1) IT PLACED THE PETITIONER IN A POSITION
WHERE, SAVE FOR SILENCE, HIS ONLY CHOICE LAY BETWEEN PREJUDICING HIS
DEFENSE TO THE STATE INDICTMENT, AND COMMITTING PERJURY; AND (2) IT WAS
A "PRETRIAL" OF THE STATE CHARGES BEFORE THE COMMITTEE.  THE FIRST OF
THESE PROPOSITIONS RESTS ON TWO PREMISES RESPECTING INDIANA LAW, WHICH
WE ACCEPT FOR THE PURPOSES OF THE ENSUING DISCUSSION: ADMISSIONS OF AN
ATTEMPT TO "FIX" THE GRAND JURY INVESTIGATION COULD HAVE BEEN USED
AGAINST PETITIONER IN THE STATE TRIAL AS EVIDENCE OF CONSCIOUSNESS OF
GUILT (SEE, E.G., DAVIDSON V. STATE, 205 IND. 564, 569, 187 N.E. 376,
378); A CLAIM OF THE FEDERAL SELF-INCRIMINATION PRIVILEGE BEFORE THAT
COMMITTEE COULD ALSO HAVE BEEN SO USED, AT LEAST TO IMPEACH
PETITIONER'S TESTIMONY HAD HE TAKEN THE STAND AT THE STATE TRIAL (SEE
CRICKMORE V. STATE, 213 IND. 586, 592-593, 12 N.E.2D 266, 269). 

THE CONTENTION RESPECTING INDIANA'S FUTURE USE OF INCRIMINATORY
ANSWERS AT ONCE ENCOUNTERS AN OBSTACLE IN HALE V. HENKEL, 201 U.S. 43,
AND UNITED STATES V. MURDOCK, 284 U.S. 141.  THOSE CASES ESTABLISH THAT
POSSIBLE SELF-INCRIMINATION UNDER STATE LAW IS NOT A GROUND FOR
REFUSING TO ANSWER QUESTIONS IN A FEDERAL INQUIRY; ACCORDINGLY, THE
FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION WILL NOT AVAIL ONE
SO CIRCUMSTANCED.  MANIFESTLY, THIS CONSTITUTIONAL DOCTRINE IS NO LESS
RELEVANT HERE EITHER BECAUSE THE PETITIONER WAS ACTUALLY UNDER, AND NOT
MERELY THREATENED WITH, STATE INDICTMENT AT THE TIME OF HIS APPEARANCE
BEFORE THE COMMITTEE, OR BECAUSE OF THE LIKELIHOOD THAT THE COMMITTEE
WOULD HAVE RESPECTED, EVEN THOUGH NOT REQUIRED TO DO SO UNDER EXISTING
LAW, A PRIVILEGE CLAIM HAD ONE BEEN MADE. 

RECOGNIZING THIS OBSTACLE, PETITIONER ASKS US TO OVERRULE HALE AND
MURDOCK, ASSERTING THAT BOTH DECISIONS RESTED ON MISAPPREHENSIONS AS TO
EARLIER AMERICAN AND ENGLISH LAW.  (FN13)  BUT WE NEED NOT CONSIDER
THOSE CONTENTIONS, FOR PETITIONER NEVER HAVING CLAIMED THE FIFTH
AMENDMENT PRIVILEGE BEFORE THE COMMITTEE, THIS ASPECT OF HIS DUE
PROCESS CHALLENGE IS NOT OPEN TO HIM NOW.  THIS IS NOT A CASE LIKE
QUINN V. UNITED STATES, 349 U.S. 155, OR EMSPAK V. UNITED STATES, 349
U.S. 190, WHERE THERE IS DOUBT WHETHER THAT PRIVILEGE WAS INVOKED BY
THE WITNESS.  "IF," AS WAS NOTED IN EMSPAK, AT 195, "THE WITNESS
INTELLIGENTLY AND UNEQUIVOCALLY WAIVES ANY OBJECTION BASED ON THE SELF
INCRIMINATION CLAUSE, OR IF THE WITNESS REFUSES A COMMITTEE REQUEST TO
STATE WHETHER HE RELIES ON THE SELF-INCRIMINATION CLAUSE, HE CANNOT
LATER INVOKE ITS PROTECTION IN A PROSECUTION FOR CONTEMPT FOR REFUSING
TO ANSWER THAT QUESTION."  IN THIS INSTANCE, THE PETITIONER, WITH
COUNSEL AT HIS SIDE, UNEQUIVOCALLY AND REPEATEDLY DISCLAIMED ANY
RELIANCE ON THE FIFTH AMENDMENT PRIVILEGE.  (FN14) 

PETITIONER CANNOT ESCAPE THE EFFECT OF HIS WAIVER BY ARGUING, AS HE
DOES, THAT HIS REFUSALS TO ANSWER WERE BASED ON "DUE PROCESS" GROUNDS,
AND NOT UPON A CLAIM OF "PRIVILEGE."  WE AGREE, OF COURSE, THAT A
CONGRESSIONAL COMMITTEE'S RIGHT TO INQUIRE IS "SUBJECT TO" ALL RELEVANT
"LIMITATIONS PLACED BY THE CONSTITUTION ON GOVERNMENTAL ACTION,"
INCLUDING "THE RELEVANT LIMITATIONS OF THE BILL OF RIGHTS," BARENBLATT
V. UNITED STATES, 360 U.S. 109, 112; THAT SUCH LIMITATIONS GO BEYOND
THE PROTECTION OF THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT,
ID., 111-112, AND THAT NONRELIANCE ON ONE SUCH LIMITATION DOES NOT
PRECLUDE RELIANCE ON ANOTHER.  BUT IT IS SURELY EQUALLY CLEAR THAT
WHERE, AS HERE, THE VALIDITY OF A PARTICULAR CONSTITUTIONAL OBJECTION
DEPENDS IN PART ON THE AVAILABILITY OF ANOTHER, BOTH MUST BE ADEQUATELY
RAISED BEFORE THE INQUIRING COMMITTEE IF THE FORMER IS TO BE FULLY
PRESERVED FOR REVIEW IN THIS COURT. 

TO HOLD OTHERWISE WOULD ENABLE A WITNESS TO TOY WITH A CONGRESSIONAL
COMMITTEE IN A MANNER OBNOXIOUS TO THE RULE THAT SUCH COMMITTEES ARE
ENTITLED TO BE CLEARLY APPRISED OF THE GROUNDS ON WHICH A WITNESS
ASSERTS A RIGHT OF REFUSAL TO ANSWER.  EMSPAK V. UNITED STATES, SUPRA,
AT 195; CF. BARENBLATT V. UNITED STATES, SUPRA, AT 123-124.  THE
PRESENT CASE INDEED FURNISHES AN APT ILLUSTRATION OF THIS.  PURSUANT TO
ITS POLICY OF RESPECTING FIFTH AMENDMENT PRIVILEGE CLAIMS WITH RESPECT
TO "STATE" SELF-INCRIMINATION (EVEN THOUGH WITH HALE AND MURDOCK STILL
ON THE BOOKS IT NEED NOT HAVE DONE SO), THE COMMITTEE WAS AT PAINS TO
DISCOVER WHETHER PETITIONER'S DUE PROCESS OBJECTION INCLUDED A
PRIVILEGE CLAIM.  HAD HE MADE SUCH A CLAIM, THERE IS LITTLE DOUBT BUT
THAT THE COMMITTEE WOULD HAVE HONORED IT.  IT WAS ONLY AFTER
PETITIONER'S EXPRESS DISCLAIMER OF THE PRIVILEGE THAT THE COMMITTEE
PROCEEDED TO DISALLOW HIS DUE PROCESS OBJECTION.  NOW TO CONSIDER THAT
THE SELF-INCRIMINATION ASPECT OF PETITIONER'S DUE PROCESS CLAIM IS
STILL OPEN TO HIM WOULD IN EFFECT REQUIRE US TO SAY THAT, DESPITE
PETITIONER'S UNEQUIVOCAL DISCLAIMER, THE COMMITTEE SHOULD NONETHELESS
HAVE TAKEN HIS DUE PROCESS OBJECTION AS SUBSUMING ALSO A PRIVILEGE
CLAIM.  (FN15)  WE CANNOT SO CONSIDER THE SITUATION.    WE ALSO FIND
UNTENABLE THE CONTENTION THAT POSSIBLE USE IN THE STATE TRIAL OF A
CLAIM OF THE FEDERAL PRIVILEGE AGAINST SELF-INCRIMINATION EITHER
EXCUSED PETITIONER FROM ASSERTING IT BEFORE THE COMMITTEE OR FURNISHES
INDEPENDENT SUPPORT FOR HIS DUE PROCESS CHALLENGE.  WHETHER OR NOT, AS
IS INTIMATED BY THE GOVERNMENT, BUT, FOR OBVIOUS REASONS, NOT BY THE
PETITIONER, THE STATE'S USE OF SUCH A CLAIM DIRECTLY OR FOR IMPEACHMENT
PURPOSES MIGHT BE PREVENTABLE, NEED NOT NOW BE CONSIDERED.  FOR IF SUCH
A PROPOSITION IS ARGUABLE IN THE FACE OF TWINING V. NEW JERSEY, 211
U.S. 78, AND ADAMSON V. CALIFORNIA, 332 U. S. 46, 51, LET ALONE KNAPP
V. SCHWEITZER, 357 U.S. 371; FELDMAN V. UNITED STATES, 322 U.S. 487;
HALE V. HENKEL, SUPRA, AND UNITED STATES V. MURDOCK, SUPRA, ITS
CONSIDERATION SHOULD IN ANY EVENT AWAIT ANOTHER DAY.  THE APPROPRIATE
TIME FOR THAT, HAD THE PETITIONER IN THIS INSTANCE CLAIMED THE
PRIVILEGE BEFORE THE COMMITTEE, WOULD HAVE BEEN UPON REVIEW OF HIS
STATE CONVICTION, WHEN WE WOULD HAVE KNOWN EXACTLY WHAT USE, IF ANY,
THE STATE HAD MADE OF THE FEDERAL CLAIM.  TO THWART THE EXERCISE OF
LEGITIMATE CONGRESSIONAL POWER, ON THE BASIS OF CONJECTURE THAT A STATE
MAY LATER ABUSE AN INDIVIDUAL'S RELIANCE UPON FEDERALLY ASSURED RIGHTS,
WOULD REQUIRE OF US A CONSTITUTIONAL ADJUDICATION CONTRARY TO WELL
ESTABLISHED PRINCIPLES OF RIPENESS AND JUSTICIABILITY.  CF. UNITED
PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 89-90. 

THERE REMAINS FOR DISCUSSION ON THE DUE PROCESS CHALLENGE, THE
CONTENTION THAT THE COMMITTEE'S INQUIRY WAS A "PRETRIAL" OF THE STATE
INDICTMENT.  INSOFAR AS THIS PROPOSITION SUGGESTS THAT THE
CONGRESSIONAL INQUIRY INFECTED THE LATER STATE PROCEEDINGS, THE ANSWER
TO IT IS FOUND IN WHAT WE HAVE JUST SAID RESPECTING THE CONTENTION THAT
A CLAIM OF SELF-INCRIMINATION BEFORE THE COMMITTEE COULD HAVE BEEN USED
IN THE STATE PROCEEDINGS.  IF THE COMMITTEE'S PUBLIC HEARINGS RENDERED
PETITIONER'S STATE TRIAL UNFAIR, SUCH A CHALLENGE SHOULD NOT BE DEALT
WITH AT THIS JUNCTURE.  THE PROPER TIME FOR ITS CONSIDERATION WOULD BE
ON REVIEW OF THE STATE CONVICTION.  TO DETERMINE IT NOW WOULD REQUIRE
US TO PASS UPON THE CLAIM IN THE DARK, SINCE WE ARE ENTIRELY IGNORANT
OF WHAT TRANSPIRED AT THE STATE TRIAL. 

NOR CAN IT BE ARGUED THAT THE MERE PENDENCY OF THE STATE INDICTMENT
IPSO FACTO CONSTITUTIONALLY CLOSED THIS AVENUE OF INTERROGATION TO THE
COMMITTEE.  "IT MAY BE CONCEDED THAT CONGRESS IS WITHOUT AUTHORITY TO
COMPEL DISCLOSURES FOR THE PURPOSE OF AIDING THE PROSECUTION OF PENDING
SUITS; BUT THE AUTHORITY OF THAT BODY, DIRECTLY OR THROUGH ITS
COMMITTEES, TO REQUIRE PERTINENT DISCLOSURES IN AID OF ITS OWN
CONSTITUTIONAL POWER IS NOT ABRIDGED BECAUSE THE INFORMATION SOUGHT TO
BE ELICITED MAY ALSO BE OF USE IN SUCH SUITS."  SINCLAIR V. UNITED
STATES, 279 U.S. 263, 295.  IT WOULD BE ABSURD TO SUGGEST THAT IN
ESTABLISHING THIS COMMITTEE THE CONGRESS WAS ACTUATED BY A PURPOSE TO
AID STATE PROSECUTIONS, STILL LESS THAT OF THIS PARTICULAR INDIVIDUAL. 
THE PERTINENCY OF THE OBSERVATION IN SINCLAIR IS NOT LESSENED BY THE
CIRCUMSTANCE THAT IN THIS INSTANCE THE STATE PROCEEDING INVOLVED WAS
CRIMINAL, RATHER THAN CIVIL.  CF. DELANEY V. UNITED STATES, 199 F.2D
107, 114.  (FN16)

                                             II.

                                         EXPOSURE. 

THERE IS ALSO NO MERIT TO PETITIONER'S CONTENTION THAT THE COMMITTEE
UNDERTOOK SIMPLY "TO EXPOSE" PETITIONER "FOR THE SAKE OF EXPOSURE." 
WATKINS V. UNITED STATES, 354 U.S. 178, 200.  THE ORIGINS OF THE
MCCLELLAN COMMITTEE, AND THE PRODUCTS OF ITS ENDEAVORS, BOTH BELIE THAT
CHALLENGE, AND NOTHING IN THE RECORD OF THE PRESENT HEARING POINTS TO A
CONTRARY CONCLUSION. 

IT CANNOT BE GAINSAID THAT LEGISLATION, WHETHER CIVIL OR CRIMINAL IN
THE LABOR-MANAGEMENT FIELD IS WITHIN THE COMPETENCE OF CONGRESS UNDER
ITS POWER TO REGULATE INTERSTATE COMMERCE.  THE COMMITTEE'S GENERAL
LEGISLATIVE RECOMMENDATIONS, MADE AT THE CONCLUSION OF ITS FIRST
INTERIM REPORT, S. REP. NO. 1417, 85TH CONG., 2D SESS. 450-453 (1958),
WERE EMBODIED IN TWO REMEDIAL STATUTES ENACTED BY CONGRESS; THE WELFARE
AND PENSION PLANS DISCLOSURE ACT OF 1958, 72 STAT. 997, AND THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 519.  THE
ENACTMENT OF THE FIRST OF THESE STATUTES IS ATTRIBUTABLE PRIMARILY TO
THE FINDINGS AND RECOMMENDATIONS OF SEVERAL SUBCOMMITTEES OF THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE, S. REP. NO. 1440, 85TH CONG., 2D
SESS. 2-3 (1958).  BUT PASSAGE OF THE BILL WAS STIMULATED BY THE
INFORMATION THEN BEING GATHERED AT HEARINGS OF THE MCCLELLAN
COMMITTEE.  SEE 104 CONG. REC. 7054, 7197-7198, 7233, 7337-7338, 7483,
7509-7510, 7521 (1958). 

THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 WAS A
DIRECT RESPONSE TO THE NEED FOR REMEDIAL FEDERAL LEGISLATION DISCLOSED
BY THE TESTIMONY BEFORE THE MCCLELLAN COMMITTEE.  THIS IS MADE CLEAR
NOT BY IMPRECISE INFERENCES DRAWN FROM LEGISLATIVE HISTORY; THE PROOF
IS IN THE STATUTE ITSELF.  SECTION 2(B) OF THE ACT DECLARES IT TO BE A
FINDING OF CONGRESS "FROM RECENT INVESTIGATIONS IN THE LABOR AND
MANAGEMENT FIELDS, THAT THERE HAVE BEEN A NUMBER OF INSTANCES OF BREACH
OF TRUST, CORRUPTION, DISREGARD OF THE RIGHTS OF INDIVIDUAL EMPLOYEES,
AND OTHER FAILURES TO OBSERVE HIGH STANDARDS OF RESPONSIBILITY AND
ETHICAL CONDUCT WHICH REQUIRE FURTHER AND SUPPLEMENTARY LEGISLATION." 
73 STAT. 519.  THE SENATE AND HOUSE REPORTS LEAN HEAVILY ON FINDINGS
MADE BY THE MCCLELLAN COMMITTEE TO JUSTIFY PARTICULAR PROVISIONS IN THE
PROPOSED BILLS.  SEE S. REP. NO. 187, 86TH CONG., 1ST SESS. 2, 6, 9,
10, 13-17 (1959); H.R. REP. NO. 741, 86TH CONG., 1ST SESS. 1, 2, 6, 9,
11-13, 76, 83 (1959). 

THE RESOLUTION WHICH GAVE BIRTH TO THIS COMMITTEE, WHEN CONSIDERED IN
LIGHT OF THE FRUITS OF ITS LABORS, PROVES BEYOND ANY DOUBT "THAT THE
COMMITTEE MEMBERS  ... WERE SERVING AS THE REPRESENTATIVES OF THE
PARENT ASSEMBLY IN COLLECTING INFORMATION FOR A LEGISLATIVE PURPOSE." 
WATKINS V. UNITED STATES, SUPRA, AT 200.  THIS IS NOT A CASE INVOLVING
IN INDEFINITE AND FLUCTUATING DELEGATION WHICH PERMITS A LEGISLATIVE
COMMITTEE "IN ESSENCE, TO DEFINE ITS OWN AUTHORITY, TO CHOOSE THE
DIRECTION AND FOCUS OF ITS ACTIVITIES."  ID., AT 205.  THIS COMMITTEE
WAS DIRECTED TO INVESTIGATE "CRIMINAL OR OTHER IMPROPER PRACTICES  ...
IN THE FIELD OF LABOR-MANAGEMENT RELATIONS."   DECIDING WHETHER ACTS
THAT ARE MADE CRIMINAL BY STATE LAW OUGHT ALSO TO BE BROUGHT WITHIN A
FEDERAL PROHIBITION, IF, AS HERE, THE SUBJECT IS A PERMISSIBLE ONE FOR
FEDERAL REGULATION, TURNS ENTIRELY ON LEGISLATIVE INQUIRY.  AND IT IS
THIS INQUIRY IN WHICH THE SENATE WAS ENGAGED WHEN IT ASSIGNED THE FACT
FINDING DUTY TO THE SELECT COMMITTEE ON IMPROPER ACTIVITIES IN THE
LABOR OR MANAGEMENT FIELD. 

MOREOVER, THIS RECORD IS BARREN OF EVIDENCE INDICATING THAT THE
COMMITTEE, FOR REASONS OF ITS OWN, UNDERTOOK TO "EXPOSE" THIS
PETITIONER. 

FIRST:  THE TRANSCRIPT DISCLOSES A MOST SCRUPULOUS ADHERENCE TO THE
ANNOUNCED COMMITTEE POLICY OF NOT ASKING A WITNESS UNDER STATE
INDICTMENT ANY QUESTIONS "ON THE SUBJECT MATTER INVOLVED IN THE
INDICTMENT."  NOTE 9, SUPRA.  THIS PARTICULAR INDICTMENT RELATED SOLELY
TO ACTIVITY IN WHICH PETITIONER AND OTHERS HAD BEEN ENGAGED IN THEIR
INDIVIDUAL CAPACITIES, NOT ON BEHALF OF ANY LABOR ORGANIZATION.  THE
COMMITTEE'S CONCERN WAS NOT WHETHER PETITIONER HAD IN FACT DEFRAUDED
THE STATE OF INDIANA OF $78,000 IN CONCLUDING A DISHONEST SALE OR
WHETHER HE HAD PERSONALLY CORRUPTED A STATE EMPLOYEE.  ITS INTEREST,
WHICH WAS ENTIRELY WITHIN THE PROVINCE ENTRUSTED TO IT BY THE SENATE,
WAS TO DISCOVER WHETHER AND HOW FUNDS OF THE BROTHERHOOD OF CARPENTERS
OR OF THE TEAMSTERS UNION (FN17) HAD BEEN USED IN A CONSPIRACY TO BRIBE
A STATE PROSECUTOR TO DROP CHARGES MADE AGAINST INDIVIDUALS WHO WERE
ALSO OFFICERS OF THE BROTHERHOOD OF CARPENTERS, AND WHETHER THE
INFLUENCE OF UNION OFFICIALS HAD BEEN EXERTED TO THAT END.  IF THESE
SUSPICIONS WERE FOUNDED, THEY WOULD HAVE SUPPORTED REMEDIAL FEDERAL
LEGISLATION FOR THE FUTURE, EVEN THOUGH THEY MIGHT AT THE SAME TIME
HAVE WARRANTED A SEPARATE STATE PROSECUTION FOR OBSTRUCTION OF JUSTICE,
OR BEEN USABLE AT THE TRIAL OF THE MARION COUNTY INDICTMENT AS EVIDENCE
OF CONSCIOUSNESS OF GUILT.  SUPRA, PP. 607-608.  BUT SURELY A
CONGRESSIONAL COMMITTEE WHICH IS ENGAGED IN A LEGITIMATE LEGISLATIVE
INVESTIGATION NEED NOT GRIND TO A HALT WHENEVER RESPONSES TO ITS
INQUIRIES MIGHT POTENTIALLY BE HARMFUL TO A WITNESS IN SOME DISTINCT
PROCEEDING.  SINCLAIR V. UNITED STATES, SUPRA, AT 295, OR WHEN CRIME OR
WRONGDOING IS DISCLOSED, MCGRAIN V. DAUGHERTY, 273 U.S. 135, 179-180. 

SECOND:  THE INFORMATION SOUGHT TO BE ELICITED BY THE COMMITTEE WAS
PERTINENT TO THE LEGISLATIVE INQUIRY.  THE COMMITTEE WAS INVESTIGATING
WHETHER AND HOW UNION FUNDS HAD BEEN MISUSED, IN THE INTEREST OF
DEVISING A LEGISLATIVE SCHEME TO DEAL WITH IRREGULAR PRACTICES. 
BECAUSE OF PETITIONER'S REFUSAL TO ANSWER QUESTIONS, AND BECAUSE OF THE
SIMILAR REFUSAL BY OTHER WITNESSES TO TESTIFY WITH REGARD TO THE LAKE
COUNTY GRAND JURY PROCEEDINGS, THE COMMITTEE WAS NOT ABLE TO LEARN
WHETHER UNION FUNDS OR INFLUENCE HAD BEEN USED TO PERSUADE HOLOVACHKA
TO DROP THOSE PROCEEDINGS. 

PETITIONER CONTENDS THAT THE COMMITTEE'S FINDING IN ITS SECOND
INTERIM REPORT THAT RADDOCK HAD BEEN "USED BY HUTCHESON AS A FIXER IN
AN ATTEMPT TO HEAD-OFF THE INDICTMENT OF HUTCHESON AND OTHERS ...  "
SHOWS THAT HIS TESTIMONY WAS NOT NEEDED FOR ANY PURPOSE OTHER THAN TO
PREJUDICE OR EMBARRASS HIM.  BUT THIS OVERLOOKS THE FACT THAT THE
COMMITTEE HAD BEEN ABLE TO OBTAIN NO INFORMATION WHATEVER ON THE LAKE
COUNTY GRAND JURY PROCEEDINGS FROM ANY OF THE OTHER WITNESSES BY REASON
OF THEIR REFUSALS TO TESTIFY ON THE SUBJECT.  (FN18)  MOREOVER, IT DOES
NOT LIE WITH THIS COURT TO SAY WHEN A CONGRESSIONAL COMMITTEE SHOULD BE
DEEMED TO HAVE ACQUIRED SUFFICIENT INFORMATION FOR ITS LEGISLATIVE
PURPOSES. 

THIRD:  THE COMMITTEE'S INTERROGATION WAS WITHIN THE EXPRESS TERMS OF
ITS AUTHORIZING RESOLUTION.  IF THE COMMITTEE WAS TO BE AT ALL
EFFECTIVE IN BRINGING TO CONGRESS' ATTENTION CERTAIN PRACTICES IN THE
LABOR-MANAGEMENT FIELD WHICH SHOULD BE SUBJECT TO FEDERAL PROHIBITIONS,
IT NECESSARILY HAD TO ASK SOME WITNESSES QUESTIONS WHICH, IF TRUTHFULLY
ANSWERED, MIGHT PLACE THEM IN JEOPARDY OF STATE PROSECUTION.  UNLESS
INTERROGATION IS MET WITH A VALID CONSTITUTIONAL OBJECTION "THE SCOPE
OF THE POWER OF CONGRESSIONAL INQUIRY  ...  IS AS PENETRATING AND FAR
REACHING AS THE POTENTIAL POWER TO ENACT AND APPROPRIATE UNDER THE
CONSTITUTION."  BARENBLATT V. UNITED STATES, SUPRA, AT 111.  AND IT IS
NOT UNTIL THE QUESTION IS ASKED THAT THE INTERROGATOR CAN KNOW WHETHER
IT WILL BE ANSWERED OR WILL BE MET WITH SOME CONSTITUTIONAL OBJECTION. 
TO DENY THE COMMITTEE THE RIGHT TO ASK THE QUESTION WOULD BE TO TURN AN
"OPTION OF REFUSAL" INTO A "PROHIBITION OF INQUIRY," 8 WIGMORE,
EVIDENCE (3D ED.)  SEC.  2268, AND TO LIMIT CONGRESSIONAL INQUIRY TO
THOSE AREAS IN WHICH THERE IS NOT THE SLIGHTEST POSSIBILITY OF STATE
PROSECUTION FOR INFORMATION THAT MAY BE DIVULGED.  SUCH A RESTRICTION
UPON CONGRESSIONAL INVESTIGATORY POWERS SHOULD NOT BE COUNTENANCED. 

THE THREE EPISODES UPON WHICH THE PETITIONER RELIES AS EVIDENCING A
COMMITTEE DEPARTURE FROM THESE LEGITIMATE CONGRESSIONAL CONCERNS FALL
FAR SHORT OF SUSTAINING WHAT IS SOUGHT TO BE MADE OF THEM.  THE FIRST
OF THESE IS THE COMMITTEE COUNSEL'S STATEMENT AT THE OUTSET OF THE
HEARINGS EXPLAINING "THE SUBJECT MATTER BEING INQUIRED INTO," IN THE
COURSE OF WHICH HE REFERRED TO THE REAL ESTATE TRANSACTION INVOLVED IN
THE MARION COUNTY INDICTMENT, AND EXPLAINED THE COMMITTEE'S INTEREST IN
FINDING OUT WHETHER UNION FUNDS OR INFLUENCE HAD BEEN USED IN BRINGING
TO AN END THE LAKE COUNTY GRAND JURY INVESTIGATION OF THE MATTER. 
(FN19)  THE PROPRIETY OF SUCH AN INQUIRY HAS ALREADY BEEN DISCUSSED. 
PP. 617-618, SUPRA. 

THE SECOND EPISODE IS THE CHAIRMAN'S STATEMENT TO THE EFFECT THAT ALL
THE FACTS AS TO THE LAKE COUNTY PROCEEDINGS HAD "NOT BEEN DEVELOPED BY
THE COMMITTEE"; THAT FURTHER "EXPOSURE" OF THEM "SHOULD BE MADE"; AND
THAT THE COMMITTEE STOOD READY TO "ASSIST AND HELP" INDIANA IF IT CHOSE
TO INTEREST ITSELF IN THE MATTER.  (FN20)  WE CAN SEE NOTHING IN THIS
STATEMENT, WHICH WAS MADE AFTER THE COMMITTEE'S INQUIRY HAD ENDED,
BEYOND A PERFECTLY NORMAL OFFER ON THE PART OF THE CHAIRMAN TO PUT THE
COMMITTEE TRANSCRIPT AT THE DISPOSAL OF THE INDIANA LAW ENFORCEMENT
AUTHORITIES IF THEY WISHED TO AVAIL THEMSELVES OF IT.  (FN21) 

THE FINAL OCCURRENCE IS THE SO-CALLED COMMITTEE "FINDING" AS TO
PETITIONER'S ALLEGED USE OF RADDOCK AS A "FIXER" TO "HEAD-OFF" AN
INDICTMENT BY THE LAKE COUNTY GRAND JURY.  WHATEVER THE BASIS FOR THAT
"FINDING" (CF. NOTE 18, SUPRA), WE MUST SAY THAT ITS MERE INCLUSION IN
AN OFFICIAL REPORT TO THE SENATE OF THE COMMITTEE'S ACTIVITIES (FN22)
FURNISHES A SLENDER REED INDEED FOR A CHARGE THAT THAT COMMITTEE WAS
ENGAGED IN UNCONSTITUTIONAL "EXPOSURE." 

IN CONCLUSION, IT IS APPROPRIATE TO OBSERVE THAT JUST AS THE
CONSTITUTION FORBIDS THE CONGRESS TO ENTER FIELDS RESERVED TO THE
EXECUTIVE AND JUDICIARY, IT IMPOSES ON THE JUDICIARY THE RECIPROCAL
DUTY OF NOT LIGHTLY INTERFERING WITH CONGRESS' EXERCISE OF ITS
LEGITIMATE POWERS.  HAVING SCRUTINIZED THIS CASE WITH CARE, WE CONCLUDE
THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE AFFIRMED. 

FN1  "SEC.  192.  REFUSAL OF WITNESS TO TESTIFY OR PRODUCE PAPERS. 

"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 JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, 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 JAIL FOR NOT LESS THAN ONE MONTH NOR
MORE THAN TWELVE MONTHS."    FN2  THE ORIGINAL RESOLUTION PROVIDED THAT
THE COMMITTEE WAS TO EXIST UNTIL JANUARY 31, 1958.  ITS TERM WAS
THEREAFTER EXTENDED FOR AN ADDITIONAL 26 MONTHS BY SEVERAL SENATE
RESOLUTIONS.  S. RES. 221, 85TH CONG., 2D SESS. (1958); S. RES. 44,
86TH CONG., 1ST SESS.  (1959); S. RES. 249, 86TH CONG., 2D SESS.
(1960).    FN3  SEE S. REP. NO. 1417, 85TH CONG., 2D SESS. (1958).  SEE
ALSO S. REP. NO. 621, 86TH CONG., 1ST SESS. (1959); S. REP. NO. 1139,
86TH CONG., 2D SESS. (1960).  THE REPORTS COVERED 2,032 PAGES AND
SUMMARIZED 46,150 PAGES OF TESTIMONY TAKEN DURING 270 DAYS OF HEARINGS
AT WHICH 1,526 WITNESSES APPEARED.  S. REP. NO. 1139, PT. 4, 86TH
CONG., 2D SESS. 868 (1960). 

FN4  THE CHAIRMAN'S FULL OPENING STATEMENT, WHICH APPEARS AT PP.
11785-11786 OF THE HEARINGS BEFORE THE SELECT COMMITTEE ON IMPROPER
ACTIVITIES IN THE LABOR OR MANAGEMENT FIELD, PT. 31, 85TH CONG., 2D
SESS. (1958)(HEREINAFTER HEARINGS), IS AS FOLLOWS: 

"THE COMMITTEE WILL HEAR WITNESSES TODAY ON THE OPERATIONS OF MR.
MAXWELL RADDOCK, OWNER OF THE WORLD WIDE PRESS, A LARGE NEW YORK
PRINTING PLANT, AND PUBLISHER OF THE TRADE UNION COURIER. 

"WITNESSES WILL BE CALLED TO TESTIFY AS TO FINANCIAL INTERESTS AND
INVESTMENTS IN THE WORLD WIDE PRESS BY LABOR ORGANIZATIONS AND CERTAIN
LABOR OFFICIALS AND THE UNORTHODOX MANNER IN WHICH BONDS OF THE COMPANY
WERE ISSUED AND HANDLED. 

"THE COMMITTEE WILL ALSO INQUIRE INTO THE PROPRIETY OF LABOR
OFFICIALS' HAVING FINANCIAL INTERESTS IN MAXWELL RADDOCK'S COMPANY AT
THE SAME TIME THAT THEY INVESTED CONSIDERABLE SUMS OF THEIR UNION'S
FUNDS IN THE PLANT THAT PRINTS THE TRADE UNION COURIER AND IN
SUBSCRIPTIONS TO THAT PAPER. 

"THE MANNER IN WHICH ADVERTISEMENTS WERE SOLICITED BY THE TRADE UNION
COURIER HAS BEEN THE SUBJECT OF INVESTIGATION BY THE COMMITTEE STAFF. 
THE COMMITTEE IS PARTICULARLY INTERESTED IN WHETHER SOLICITORS EMPLOYED
BY THE TRADE UNION COURIER REPRESENTED IT AS THE ORGAN OF THE AFL-CIO
AS WELL AS MAKING OTHER FALSE REPRESENTATIONS. 

"PRELIMINARY INVESTIGATION BY THE STAFF HAS DISCLOSED CERTAIN
FINANCIAL TRANSACTIONS OF THE UNITED BROTHERHOOD OF CARPENTERS WHICH
REQUIRE EXPLANATION. 

"ONE OF THESE TRANSACTIONS INVOLVES VERY LARGE EXPENDITURES IN THE
PUBLICATION OF A BOOK ENTITLED, "THE PORTRAIT OF AN AMERICAN LABOR
LEADER, WILLIAM L. HUTCHESON.' 

"MAURICE HUTCHESON, WHO IS NOW PRESIDENT OF THE UNITED BROTHERHOOD OF
CARPENTERS, AND MR. RADDOCK WILL BE QUESTIONED ABOUT THE MATTER. 

"THE CHAIR MAY SAY THAT DURING THE EXISTENCE OF THIS COMMITTEE WE
HAVE HAD MUCH INFORMATION AND A GREAT DEAL OF TESTIMONY REGARDING THE
MISUSE OF UNION FUNDS, REGARDING PERSONAL FINANCIAL GAIN AND BENEFIT
AND PROFIT AND EXPENDITURE OF SUCH FUNDS BY UNION OFFICIALS, AND WE ARE
STILL PURSUING THAT ASPECT OF LABOR-MANAGEMENT RELATIONS. 

"WE HAVE ALSO HAD CONSIDERABLE EVIDENCE OF COLLUSION BETWEEN
MANAGEMENT AND UNION OFFICIALS WHERE THEY BOTH PROFIT AT THE EXPENSE OF
THE MEN WHO WORK AND PAY THE DUES. 

"IN THIS PARTICULAR INSTANCE, THERE IS INDICATION THAT THE UNION
MEMBERSHIP HAVE AGAIN BEEN IMPOSED UPON BY TRANSACTIONS THAT HAVE
OCCURRED THAT WE WILL LOOK INTO AS THE EVIDENCE UNFOLDS BEFORE US." 

FN5  HEARINGS, 11932-11995, 12000-12006. 

FN6  INVESTIGATION OF HIGHWAY RIGHT-OF-WAY ACQUISITION - STATE OF
INDIANA, HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC
WORKS, U. S. SENATE, 85TH CONG., 1ST SESS. (1957). 

FN7  THE GOVERNMENT'S BRIEF INFORMS US THAT PETITIONER AND HIS TWO
CODEFENDANTS, BLAIER AND CHAPMAN, WERE CONVICTED ON THE MARION COUNTY
INDICTMENT IN NOVEMBER 1960, AND THAT THE CONVICTION IS NOW PENDING ON
APPEAL IN THE SUPREME COURT OF INDIANA. 

FN8  NOTE 17, INFRA. 

FN9  A COPY OF THE STATE INDICTMENT WAS ACCEPTED FOR REFERENCE, AND
THE CHAIRMAN ANNOUNCED THAT IT WAS A "RULE OR POLICY" OF THE COMMITTEE
NOT TO INTERROGATE ABOUT MATTERS FOR WHICH THE WITNESS WAS UNDER
PENDING STATE INDICTMENT.  HEARINGS, 12060. 

FN10  THE COMMITTEE'S CHIEF COUNSEL STATED THAT THE QUESTION DID NOT
RELATE TO THE SUBJECT MATTER OF THE STATE INDICTMENT BUT "TO STEPS
TAKEN IN A LATER CONSPIRACY TO PRESENT (PREVENT?)  AN INDICTMENT IN
LAKE COUNTY, IND."  HEARINGS, 12074.  BLAIER'S ATTORNEY ARGUED THAT THE
ANSWER COULD BE USED BY THE PROSECUTION IN THE INDIANA CASE TO PROVE
THE CONTINUATION OF THE CONSPIRACY.  WHETHER THE QUESTION INVOLVED THE
STATE INDICTMENT OR NOT, THE COMMITTEE'S COUNSEL CONCEDED THAT BLAIER
MIGHT "NOT WANT TO ANSWER THE QUESTIONS ON THE GROUNDS IT MAY TEND TO
INCRIMINATE HIM, BUT NOT BECAUSE HE IS UNDER INDICTMENT OR THAT I AM
ASKING QUESTIONS DEALING WITH THE INDICTMENT."  THE CHAIRMAN RULED, "IT
MAY BE A BORDERLINE CASE.  I AM UNABLE TO DETERMINE IT AT THIS TIME. 
THE WITNESS CAN EXERCISE HIS PRIVILEGE."  HEARINGS, 12074. 

FN11  HEARINGS, 12115. 

FN12  COUNT 1:  "HAS HE (MR. RADDOCK) RECEIVED FROM THE UNION PAYMENT
FOR ACTS PERFORMED IN YOUR BEHALF AND FOR YOU AS AN INDIVIDUAL?"  COUNT
2:  "HAVE YOU, UNRELATED TO THIS OFFENSE CHARGED IN THE INDICTMENT NOW
AGAINST YOU, ENGAGED THE SERVICES OF MR. RADDOCK, AND HAVE YOU PAID HIM
OUT OF UNION FUNDS FOR THE PERFORMANCE OF THOSE SERVICES, TO AID AND
ASSIST YOU IN AVOIDING OR PREVENTING AN INDICTMENT FROM BEING FOUND
AGAINST YOU OR FOR BEING CRIMINALLY PROSECUTED FOR ANY OTHER OFFENSE
OTHER THAN THAT MENTIONED IN THIS INDICTMENT?"  COUNT 3:  "DID YOU
ENGAGE THE SERVICES OF MR. RADDOCK AND PAY HIM FOR THOSE SERVICES OUT
OF UNION FUNDS, TO CONTACT, EITHER DIRECTLY OR INDIRECTLY, THE COUNTY
PROSECUTING ATTORNEY, MR. HOLOVACHKA, GIVEN NAME METRO, IN LAKE COUNTY,
GARY, IND.?"  COUNT 4:  "HAVE YOU PAID MAX C. RADDOCK OUT OF UNION
FUNDS FOR PERSONAL SERVICES RENDERED TO YOU AT ANY TIME WITHIN THE PAST
5 YEARS?"  COUNT 5:  "HAVE YOU USED UNION FUNDS TO PAY MAX C. RADDOCK
FOR ANY SERVICES RENDERED TO YOU PERSONALLY, WHOLLY DISASSOCIATED FROM
ANY MATTERS OUT OF WHICH THE PENDING CRIMINAL CHARGE AROSE?"  COUNT 6:
"WAS HE THERE IN CHICAGO ON UNION BUSINESS FOR WHICH THE UNION HAD THE
RESPONSIBILITY FOR PAYMENT?"  COUNT 7:  "WAS MR. RADDOCK PAID ON THAT
TRIP, THE EXPENSES OF HIS PAID BY UNION FUNDS WHILE HE WAS ON UNION
BUSINESS?"  COUNT 8:  "YOU WERE OUT IN CHICAGO AT THE SAME TIME?" 
COUNT 9:  "WERE YOUR EXPENSES ON THAT CHICAGO TRIP PAID BY THE UNION?" 
COUNT 10:  "WERE YOU OUT IN CHICAGO AT THAT TIME ON UNION BUSINESS?" 
COUNT 11:  "DO YOU KNOW MR. JAMES HOFFA?"  COUNT 12:  "DID YOU MAKE AN
ARRANGEMENT WITH MR. HOFFA THAT HE WAS TO PERFORM TASKS FOR YOU IN
RETURN FOR YOUR SUPPORT ON THE QUESTION OF HIS BEING OUSTED FROM THE
A.F.L.-CIO?"  COUNT 13:  "ISN'T IT A FACT THAT YOU TELEPHONED MR. HOFFA
FROM YOUR HOTEL IN CHICAGO ON AUGUST 12, 1957?"  COUNT 14: "AND WASN'T
THAT TELEPHONE CALL IN FACT PAID OUT OF UNION FUNDS, THE TELEPHONE CALL
THAT YOU MADE TO HIM ON AUGUST 12?"  COUNT 15"  "DO YOU ALSO KNOW MR.
SAWOCHKA OF THE BROTHERHOOD OF TEAMSTERS?"  COUNT 16:  "ISN'T IT A FACT
THAT YOU HAD MR. PLYMATE WHO IS A REPRESENTATIVE OF THE BROTHERHOOD,
TELEPHONE, AND YOUR SECRETARY TELEPHONE, MR. SAWOCHKA FROM YOUR ROOM ON
AUGUST 13, 1957?"  COUNT 17:  "AND ISN'T IT A FACT THAT THAT TELEPHONE
BILL AND THAT TELEPHONE CALL WAS PAID OUT OF UNION FUNDS?"  COUNT 18:
"DID YOU HAVE ANY BUSINESS WITH LOCAL 142 OF THE TEAMSTERS IN GARY,
IND.?" 

FN13  AMONG OTHER THINGS, PETITIONER CONTENDS THAT BOTH HALE V.
HENKEL AND UNITED STATES V. MURDOCK WERE FOUNDED ON A MISREADING OF AN
EARLIER DECISION OF THIS COURT, UNITED STATES V. SALINE BANK, 1 PET.
100, WHICH WAS DELIVERED BY CHIEF JUSTICE MARSHALL.  IT IS ARGUED THAT
SALINE BANK STANDS FOR THE PROPOSITION THAT THE CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION MAY BE INVOKED IN A FEDERAL COURT
IF THE INFORMATION DIVULGED MAY AID A STATE PROSECUTION.  IT IS
ABUNDANTLY CLEAR, HOWEVER, THAT SALINE BANK STANDS FOR NO
CONSTITUTIONAL PRINCIPLE WHATEVER.  IT WAS MERELY A REASSERTION OF THE
ANCIENT EQUITY RULE THAT A COURT OF EQUITY WILL NOT ORDER DISCOVERY
THAT MAY SUBJECT A PARTY TO CRIMINAL PROSECUTION.  IN FACT, THE
DECISION WAS CITED IN SUPPORT OF THAT PROPOSITION BY AN ESTEEMED MEMBER
OF THE VERY COURT THAT DECIDED THE CASE.  2 STORY, COMMENTARIES ON
EQUITY, SEC. 1494, N. 1 (1836). 

FN14  TYPICAL OF SUCH DISCLAIMERS ARE THE FOLLOWING: 

"THE CHAIRMAN.  I UNDERSTAND, IT VERY CLEAR NOW, THAT YOU ARE NOT
INVOKING THE FIFTH AMENDMENT PRIVILEGE? 

"MR. HUTCHESON.  THAT IS RIGHT, SIR, I AM NOT INVOKING IT. 

"THE CHAIRMAN.  YOU ARE NOT EXERCISING THAT PRIVILEGE? 

"MR. HUTCHESON.  NO, SIR. 

"THE CHAIRMAN.  YOU ARE CHALLENGING THE QUESTION AND THE JURISDICTION
OF THE COMMITTEE FOR THE REASONS YOU HAVE STATED AND FOR THESE REASONS
ONLY? 

"MR. HUTCHESON.  YES, SIR. 

"THE CHAIRMAN.  ALL RIGHT.  WE HAVE A CLEAR UNDERSTANDING ABOUT
THAT."  HEARINGS, 12116. 

"THE CHAIRMAN.  AND, AGAIN, NOT INVOKING THE PRIVILEGE OF THE FIFTH
AMENDMENT, YOU STAND ONLY AND SOLELY UPON THE STATEMENT YOU HAVE
READ?"  (SEE PP. 605-606, SUPRA.) 

"MR. HUTCHESON.  YES, SIR.   "THE CHAIRMAN.  AND YOU ARE NOT
EXERCISING THE PRIVILEGE THAT, BY ANSWERING, A TRUTHFUL ANSWER MIGHT
TEND TO INCRIMINATE YOU? 

"(WITNESS CONFERRED WITH COUNSEL.) 

"MR. HUTCHESON.  NO, SIR."  HEARINGS, 12117. 

FURTHER DISCLAIMERS OF THE SAME TENOR WILL BE FOUND AT HEARINGS,
12119, 12121-12122, AND 12124.  PETITIONER DID NOT EXPLAIN AT THE
HEARINGS WHY HE WENT TO SUCH PAINS TO AVOID ANY APPEARANCE OF INVOKING
THE PRIVILEGE AGAINST SELF-INCRIMINATION.  HOWEVER, THE FOLLOWING
COLLOQUY BETWEEN PETITIONER AND A MEMBER OF THE COMMITTEE SHEDS SOME
LIGHT ON HIS MOTIVATION: 

"SENATOR ERVIN.  MR. CHAIRMAN, MAY I ASK ONE OR TWO QUESTIONS ALONG
THAT LINE AND THEN I WILL SUBSIDE? 

"MR. HUTCHESON, YOU ARE FAMILIAR WITH THE PROVISIONS OF THE AFL-CIO
ETHICAL CODE CONCERNING OFFICERS OF AFFILIATED UNIONS WHO INVOKE THE
FIFTH AMENDMENT; AREN'T YOU? 

"MR. HUTCHESON.  YES, SIR. 

"SENATOR ERVIN.  IN THAT CONNECTION I WOULD LIKE TO STATE THAT THIS
IS MY OPINION OF THE LAW, THOUGH IT MAY NOT BE YOUR COUNSEL'S.  THE
ONLY REASON FOR RECOGNIZING THE RIGHT THAT A MAN MAY NOT TESTIFY
CONCERNING MATTERS INVOLVED IN AN INDICTMENT AGAINST HIM ARISES OUT OF
THE FACT THAT THE INDICTMENT IS PROBABLY THE STRONGEST KIND OF EVIDENCE
THAT ANYTHING HE MAY SAY IN REFERENCE TO IT MAY BE CONSTRUED TO
INCRIMINATE HIM, AND THAT THE ONLY REASON THAT A MAN HAS A RIGHT TO
REFRAIN FROM ANSWERING MATTERS ABOUT AN INDICTMENT IS THE FACT THAT
WHAT HE MAY SAY ABOUT THOSE MATTERS MAY TEND TO INCRIMINATE HIM. 

"THEREFORE, MR. HUTCHESON, DON'T YOU REALIZE THAT WHAT YOU ARE DOING
IS THAT YOU ARE SEEKING TO AVOID AN EXPRESSED VIOLATION?  IN OTHER
WORDS, YOU ARE SEEKING TO GET THE BENEFIT OF THE FIFTH AMENDMENT
WITHOUT INVOKING IT SO THAT YOU WILL NOT RUN THE RISK OF COMMITTING AN
OFFENSE AGAINST THE ETHICAL CODE OF THE A.F. OF L.-CIO? 

"(THE WITNESS CONFERRED WITH HIS COUNSEL.) 

"MR. HUTCHESON.  SIR, I HAVE BEEN FOLLOWING THE ADVICE OF COUNSEL ON
THE GROUNDS OUTLINED BY ME. 

"SENATOR ERVIN.  WELL, YOU ARE CONCERNED THAT THERE SHALL BE NO
ACTUAL OR APPARENT VIOLATION ON YOUR PART OF THE PROVISIONS OF THE A.F.
OF L.-CIO CODE OF ETHICS CONCERNING UNION OFFICERS WHO INVOKE THE FIFTH
AMENDMENT WHEN ASKED ABOUT THEIR OFFICIAL CONDUCT, AREN'T YOU? 

"MR. HUTCHESON.  YES, SIR."  HEARINGS, 12124-12125. 

FN15  WHILE THE COMMITTEE DID NOT PRESS BLAIER TO ANSWER QUESTIONS
RELATING TO THE LAKE COUNTY GRAND JURY PROCEEDINGS AFTER HE HAD REFUSED
TO DO SO ON THE SAME GROUNDS AS THOSE ADVANCED BY THE PETITIONER, THERE
IS NOTHING TO INDICATE THAT THIS RESULTED FROM THE COMMITTEE'S
UNDERSTANDING THAT THOSE GROUNDS INCLUDED A CLAIM OF THE FIFTH
AMENDMENT PRIVILEGE. 

FN16  THE SUGGESTION MADE IN DISSENT THAT THE QUESTIONS WHICH
PETITIONER REFUSED TO ANSWER WERE "OUTSIDE THE POWER OF A COMMITTEE TO
ASK" (POST, P. 638) UNDER THE DUE PROCESS CLAUSE BECAUSE THEY TOUCHED
ON MATTERS THEN PENDING IN JUDICIAL PROCEEDINGS CANNOT BE ACCEPTED FOR
SEVERAL REASONS.  FIRST:  THE REASONING UNDERLYING THIS PROPOSITION IS
THAT THESE INQUIRIES CONSTITUTED A LEGISLATIVE ENCROACHMENT ON THE
JUDICIAL FUNCTION.  BUT SUCH REASONING CAN HARDLY BE LIMITED TO
INQUIRIES THAT MAY BE GERMANE TO EXISTING JUDICIAL PROCEEDINGS; IT
WOULD SURELY APPLY AS WELL TO INQUIRIES CALLING FOR ANSWERS THAT MIGHT
BE USED TO THE PREJUDICE OF THE WITNESS IN ANY FUTURE JUDICIAL
PROCEEDING.  IF SUCH WERE THE REACH OF "DUE PROCESS" IT WOULD TURN A
WITNESS' PRIVILEGE AGAINST SELF-INCRIMINATION INTO A SELF-OPERATING
RESTRAINT ON CONGRESSIONAL INQUIRY, SEE 8 WIGMORE, EVIDENCE (3D ED.),
SEC. 2268; P. 20, INFRA, AND WOULD IN EFFECT PRO TANTO OBLITERATE THE
NEED FOR THAT CONSTITUTIONAL PROTECTION. 

SECOND:  THE ONLY DECISION RELIED ON IN SUPPORT OF THIS BROAD
PROPOSITION IS KILBOURN V. THOMPSON, 103 U.S. 168, WHICH BECAUSE OF ITS
"LOOSE LANGUAGE" AS BEEN SEVERELY DISCREDITED, E.G., UNITED STATES V.
RUMELY, 345 U.S. 41, 46, AND WHICH CANNOT WELL BE TAKEN TO STAND FOR
THE PERVASIVE PRINCIPLES FOR WHICH IT IS PRESENTLY RELIED ON.  (POST,
PP. 630, 632-636.)  AT MOST, KILBOURN IS AUTHORITY FOR THE PROPOSITION
THAT CONGRESS CANNOT CONSTITUTIONALLY, INQUIRE "INTO THE PRIVATE
AFFAIRS OF INDIVIDUALS WHO HOLD NO OFFICE UNDER THE GOVERNMENT" WHEN
THE INVESTIGATION "COULD RESULT IN NO VALID LEGISLATION ON THE SUBJECT
TO WHICH THE INQUIRY REFERRED."  103 U.S., AT 195.  THE TANGIBLE FRUITS
OF THE LABORS OF THE MCCLELLAN COMMITTEE (PP. 615-617, INFRA) SHOW THAT
SUCH IS NOT THE CASE HERE.    THIRD:  IT HARDLY SEEMS AN IMPAIRMENT OF
"INDIVIDUAL LIBERTIES PROTECTED BY THE BILL OF RIGHTS" (POST, P. 630)
TO LIMIT A WITNESS WHO MAKES SUCH A "DUE PROCESS" OBJECTION TO THE
SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION GRANTED BY THE FIFTH
AMENDMENT.  IF NEITHER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT PROHIBITS THE STATE FROM USING THE WITNESS' ANSWER NOR THE
SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT PROHIBITS THE FEDERAL
GOVERNMENT FROM ASKING THE QUESTION, IT IS DIFFICULT TO UNDERSTAND HOW
IT CAN BE SAID THAT THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
PROHIBITS THE INQUIRY BECAUSE ANY ANSWER MAY BE USED BY A STATE. 
FOURTH:  IT SHOULD BE NOTED THAT ALTHOUGH THIS CONGRESSIONAL INQUIRY
WAS RELATED TO THE SUBJECT MATTER OF THE STATE INDICTMENT, THE
QUESTIONS THAT WERE ASKED OF THE PETITIONER DID NOT BEAR DIRECTLY ON
HIS GUILT OR INNOCENCE OF THE STATE CHARGES.  INDIANA'S CONCERN WAS NOT
WITH WHETHER UNION FUNDS OR INFLUENCE HAD BEEN MISUSED; INDEED THERE IS
NO SUGGESTION THAT THE ALLEGED BRIBERY OF THE INDIANA HIGHWAY OFFICIAL
WAS CONSUMMATED WITH FUNDS OTHER THAN THE PERSONAL PROFITS REAPED BY
THE PETITIONER AND OTHERS FROM THEIR UNLAWFUL TRANSACTIONS.  ON THE
OTHER HAND, CONGRESS' CONCERN WAS WHETHER, ON SOME LATER DATE, UNION
FUNDS HAD BEEN USED TO STIFLE CRIMINAL PROCEEDINGS THAT HAD BEEN
BROUGHT AGAINST THE PETITIONER PERSONALLY.  HOW SUCH PAYMENTS WERE
MADE, IF THEY WERE IN FACT MADE, WOULD CERTAINLY BE A CONSIDERATION IN
THE ESTABLISHMENT OF A FEDERAL REPORTING AND DISCLOSURE SYSTEM FOR
UNION FUNDS. 

FINALLY, "THE LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED"
PHRASE IN ANDERSON V. DUNN, 6 WHEAT.  204, 231 (POST, PP. 632, 636,
638) SCARCELY BEARS UPON THE ISSUE PRESENTED BY THIS CASE.  THAT
EXPRESSION WAS USED IN THE ANDERSON CASE NOT IN CONNECTION WITH
ANYTHING HAVING TO DO WITH THE PERMISSIBLE SCOPE OF CONGRESSIONAL
INQUIRY, BUT SOLELY WITH RESPECT TO "THE EXTENT OF THE PUNISHING POWER"
INHERENTLY POSSESSED BY THE CONGRESS.  ID., AT 230-231. 

FN17  THE COMMITTEE HAD INFORMATION TENDING TO SHOW THAT THE
TEAMSTERS UNION, WITH WHOSE OFFICERS PETITIONER WAS FRIENDLY, PURCHASED
FOR $40,000 SOME REAL ESTATE IN GARY, INDIANA, WORTH APPROXIMATELY
$3,800.  THE SELLER IN THIS TRANSACTION WAS A CORPORATION WHICH THEN
PROCEEDED TO PURCHASE HOLOVACHKA'S INTEREST IN ANOTHER FAILING
CORPORATION FOR AN AMOUNT SUBSTANTIALLY IN EXCESS OF ITS VALUE.  SEE
SECOND INTERIM REPORT OF THE SELECT COMMITTEE ON IMPROPER ACTIVITIES IN
THE LABOR OR MANAGEMENT FIELD, S. REP. NO. 621, PT. 2, 86TH CONG., 1ST
SESS. 558-560 (1959). 

FN18  THE MEAGERNESS OF THE COMMITTEE'S FINDING ON THIS SUBJECT
STANDS IN MARKED CONTRAST TO ITS FINDINGS ON THE HUTCHESON BIOGRAPHY,
WITH RESPECT TO WHICH THE PETITIONER AND THE OTHER WITNESSES HAD
TESTIFIED WITH COMPARATIVE FREEDOM.  WHEREAS 17 PAGES OF THE SECOND
INTERIM REPORT ARE DEVOTED TO SUMMARIZING THE EVIDENCE REGARDING THE
PUBLICATION OF THE BIOGRAPHY, ONLY SIX PAGES RELATED TO THE LAKE COUNTY
PROCEEDINGS.  SECOND INTERIM REPORT OF THE SELECT COMMITTEE ON IMPROPER
ACTIVITIES IN THE LABOR OR MANAGEMENT FIELD, S. REP. NO. 621, PT. 2,
86TH CONG., 1ST SESS. 533-550, 554-560 (1959).  IT IS RELEVANT TO
OBSERVE IN THIS REGARD THAT TEN OF THE QUESTIONS WITH RESPECT TO WHICH
THE PETITIONER WAS SUBSEQUENTLY INDICTED RELATED TO THE POSSIBLE USE OF
UNION FUNDS FOR THE PURPOSE OF SUPPRESSING THE LAKE COUNTY GRAND JURY
PROCEEDING.  SEE NOTE 12, COUNTS 1, 2, 3, 4, 5, 6, 7, 9, 14, 17. 

FN19  IN RELEVANT PART THIS STATEMENT WAS: 

"WE ARE INQUIRING INTO THE SITUATION IN CONNECTION WITH THE
PRESENTATION BEFORE THE GRAND JURY IN LAKE COUNTY, IND.; THE
INTERVENTION BY CERTAIN UNION OFFICIALS INTO THAT MATTER, AND THE PART
THAT WAS PLAYED BY MR. HUTCHESON HIMSELF, MR. SAWOCHKA, THE SECRETARY
TREASURER OF LOCAL 142 OF THE TEAMSTERS, AND MR. JAMES HOFFA, THE
INTERNATIONAL PRESIDENT OF THE TEAMSTERS. 

"THE CHAIRMAN.  IS THERE SOME INFORMATION THAT EITHER UNION FUNDS
WERE USED IN THE COURSE OF THESE TRANSACTIONS OR THAT THE INFLUENCE OF
OFFICIAL POSITIONS OF HIGH UNION OFFICIALS WAS USED IN CONNECTION WITH
THIS ALLEGED ILLEGAL OPERATION? 

"MR. KENNEDY.  WE HAVE INFORMATION ALONG BOTH LINES, MR. CHAIRMAN,
NOT ONLY THE INFLUENCE BUT ALSO IN CONNECTION WITH THE EXPENDITURE OF
UNION FUNDS. 

     *         *         *      *         * 

"THE CHAIRMAN.  THAT IS THE INTEREST OF THIS COMMITTEE IN A
TRANSACTION OF THIS KIND OR ALLEGED TRANSACTION OF THIS KIND, TO
ASCERTAIN AGAIN WHETHER THE FUNDS OR DUES MONEY OF UNION MEMBERS IS
BEING MISAPPROPRIATED, IMPROPERLY SPENT, OR WHETHER OFFICIALS IN UNIONS
ARE USING THEIR POSITION TO INTIMIDATE, COERCE, OR IN ANY WAY ILLEGALLY
PROMOTE TRANSACTIONS WHERE THE PUBLIC INTEREST IS INVOLVED. 

"MR. RADDOCK, YOU HAVE HEARD A BACKGROUND STATEMENT.  THAT IS NOT
EVIDENCE, BUT IT IS INFORMATION, HOWEVER, WHICH THE COMMITTEE HAS,
REGARDING THIS MATTER OUT THERE.  THE COMMITTEE IS UNDERTAKING TO
INQUIRE INTO THIS IN PURSUIT OF THE MANDATE GIVEN TO IT BY THE
RESOLUTION CREATING THE COMMITTEE."  HEARINGS, 12021. 

FN20  THE FULL STATEMENT WAS: 

"THE TESTIMONY FURTHER INDICATES THAT CERTAIN HIGH OFFICIALS OF BOTH
THE TEAMSTERS AND THE CARPENTERS UNION, TWO OF THE LARGEST UNIONS IN
THE COUNTRY, WITH THE HELP AND ASSISTANCE OF MR. RADDOCK WERE INVOLVED
IN A CONSPIRACY TO SUBVERT JUSTICE IN THE STATE OF INDIANA. 

"ALL THE FACTS REGARDING THIS CONSPIRACY UNDOUBTEDLY HAVE NOT BEEN
DEVELOPED BY THE COMMITTEE. 

"FURTHER EXPOSURE WE BELIEVE CAN AND SHOULD BE MADE.  WE WILL BE GLAD
TO ASSIST AND HELP LAW ENFORCEMENT OFFICIALS IN THE STATE OF INDIANA IF
THEY DETERMINE THAT THEY WOULD INTEREST THEMSELVES IN THE MATTER." 
HEARINGS, 12132. 

FN21  AT THE CONTEMPT TRIAL SENATOR MCCLELLAN EXPLAINED HIS STATEMENT
AS FOLLOWS: 

"OUR LEGISLATIVE FUNCTION HAD BEEN PERFORMED IN SEEKING INFORMATION
REGARDING CRIMES AND IMPROPER ACTIVITIES.  SOME EVIDENCE HAD BEEN
PRESENTED INDICATING THE POSSIBILITY OF A FURTHER CRIME INVOLVING THIS
DEFENDANT POSSIBLY AND OFFICERS OF ANOTHER LARGE UNION.  IT HAS BEEN
OUR PRACTICE TO COOPERATE WITH STATE AND FEDERAL OFFICIALS WHERE ANY
EVIDENCE IS DEVELOPED BEFORE US WITH RESPECT TO A CRIME HAVING BEEN
COMMITTED.  OUR LEGISLATIVE PURPOSE IS TO SEARCH OUT AND FIND IF CRIME
HAS BEEN COMMITTED. 

"MY STATEMENT HERE IS TO THE EFFECT THAT IF THE STATE OFFICIALS
DESIRED TO PURSUE ANY TESTIMONY THAT WE HAD DEVELOPED, WE WOULD
COOPERATE WITH THEM AND MAKE THE RECORD AVAILABLE TO THEM." 

FN22  SECOND INTERIM REPORT, S. REP. NO. 621, PT. 2, 86TH CONG., 1ST
SESS. 592 (1959). 

MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER TOOK NO PART IN THE
DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, CONCURRING IN THE RESULT.   I JOIN IN THE
JUDGMENT AFFIRMING THE COURT OF APPEALS, BUT NOT IN MY BROTHER HARLAN'S
OPINION. 

THE SELECT COMMITTEE ASSURED PETITIONER THAT IT WOULD RESPECT HIS
RELIANCE UPON HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION,
BUT PETITIONER DELIBERATELY AND EXPLICITLY CHOSE NOT TO EXERCISE THAT
PRIVILEGE.  IN THAT CIRCUMSTANCE, THE CASE IS NOT ONE FOR
RECONSIDERATION OF HALE V. HENKEL, 201 U.S. 43, AND UNITED STATES V.
MURDOCK, 284 U.S. 141.  I ADHERE, HOWEVER, TO MY VIEW THAT IN A PROPER
CASE WE SHOULD RECONSIDER THE HOLDINGS OF HALE AND MURDOCK THAT, IN A
FEDERAL PROCEEDING, POSSIBLE INCRIMINATION UNDER STATE LAW PRESENTS NO
BASIS FOR INVOKING THE FIFTH AMENDMENT PRIVILEGE.  SEE KNAPP V.
SCHWEITZER, 357 U.S. 371, 381 (CONCURRING OPINION); SEE ALSO COHEN V.
HURLEY, 366 U.S. 117, 154 (DISSENTING OPINION). 

THE PETITIONER'S CONSTITUTIONAL CLAIMS FIND NO SUPPORT, IN MY VIEW,
IN KILBOURN V. THOMPSON, 103 U.S. 168.  THAT CASE INVOLVED A
CONGRESSIONAL INQUIRY INTO THE SETTLEMENT OF A CLAIM AGAINST A BANKRUPT
FIRM.  THE SETTLEMENT WAS SAID TO THREATEN DEPLETION OF THE BANKRUPT
ESTATE TO THE INJURY OF OTHER CREDITORS, INCLUDING THE UNITED STATES. 
THE COURT HELD THAT THE SUBJECT MATTER WAS OUTSIDE LEGISLATIVE
COGNIZANCE BECAUSE IT WAS A MATTER INHERENTLY AND HISTORICALLY FOR
ADJUSTMENT BY THE JUDICIAL BRANCH, AND BECAUSE THERE WAS NO HINT OF A
LEGISLATIVE PURPOSE TO BE SERVED BY THE INQUIRY - "IT COULD RESULT IN
NO VALID LEGISLATION ON THE SUBJECT TO WHICH THE INQUIRY REFERRED." 
103 U.S., AT 195. 

THE CONGRESSIONAL INQUIRY BEFORE US HERE IS IN SHARP CONTRAST TO THAT
IN KILBOURN.  THE SELECT COMMITTEE WAS SEEKING FACTUAL MATERIAL TO AID
IN THE DRAFTING AND ADOPTION OF REMEDIAL LEGISLATION TO CURB MISUSE BY
UNION OFFICIALS OF UNION FUNDS - UNQUESTIONABLY A PROPER LEGISLATIVE
PURPOSE.  THE PENDING MARION COUNTY INDICTMENT DID NOT INVOLVE MISUSE
OF UNION FUNDS BUT THE ALLEGED BRIBERY OF A STATE OFFICIAL IN
CONNECTION WITH A SALE OF LAND TO THE STATE.  HOWEVER, THE
CONGRESSIONAL INQUIRY AND THE STATE PROSECUTION CROSSED PATHS WHEN THE
COMMITTEE LEARNED THAT UNION FUNDS MIGHT HAVE BEEN USED IN A CORRUPT
ATTEMPT TO FORESTALL AN EARLIER INDICTMENT IN ANOTHER COUNTY, LAKE, FOR
THE SAME ALLEGED BRIBERY.  IT SEEMS TO ME OBVIOUS THAT THE COMMITTEE'S
INTERROGATION OF THE PETITIONER ABOUT THE USE OF UNION FUNDS TO
FORESTALL THAT INDICTMENT DID NOT STRAY BEYOND THE RANGE OF THE
COMMITTEE'S VALID LEGISLATIVE PURPOSE.  IT MAY BE THAT, UNDER INDIANA
LAW, EVIDENCE OF THE ATTEMPT, ALTHOUGH NOT ESSENTIAL, WOULD BE
ADMISSIBLE AT THE TRIAL UNDER THE MARION COUNTY INDICTMENT.  (FN1) BUT
THIS HARDLY CONVERTS THE COMMITTEE'S INQUIRY ABOUT THE ATTEMPT INTO A
LEGISLATIVE REHEARSAL OF THE TRIAL OF THE MARION COUNTY INDICTMENT,
BRINGING THE INQUIRY WITHIN KILBOURN'S CONDEMNATION OF LEGISLATIVE
USURPATION OF JUDICIAL FUNCTIONS. 

WHEN A CONGRESSIONAL INQUIRY AND A CRIMINAL PROSECUTION CROSS PATHS,
CONGRESS MUST ACCOMMODATE THE PUBLIC INTEREST IN LEGITIMATE LEGISLATIVE
INQUIRY WITH THE PUBLIC INTEREST IN SECURING THE WITNESS A FAIR TRIAL. 
WHETHER A PROPER ACCOMMODATION HAS BEEN MADE MUST BE DETERMINED FROM
THE VANTAGE POINT OF THE TIME OF PETITIONER'S APPEARANCE BEFORE THE
COMMITTEE. 

ANY THOUGHT THAT SOME OF OUR RECENT DECISIONS, E.G., BARENBLATT V.
UNITED STATES, 360 U.S. 109; WILKINSON V. UNITED STATES, 365 U.S. 399;
BRADEN V. UNITED STATES, 365 U.S. 431, WEAKENED THE VITALITY OF OUR
HOLDING IN WATKINS V. UNITED STATES, 354 U.S. 178, 187, THAT THE
CONGRESSIONAL POWER OF INQUIRY IS NOT "AN END IN ITSELF; IT MUST BE
RELATED TO, AND IN FURTHERANCE OF, A LEGITIMATE TASK OF THE CONGRESS,"
IS DISPELLED BY TODAY'S STRONG EXPRESSION OF CONTINUED ADHERENCE TO
THAT VITAL PRINCIPLE.  INVESTIGATION CONDUCTED SOLELY TO AGGRANDIZE THE
INVESTIGATOR OR PUNISH THE INVESTIGATED, EITHER BY PUBLICITY OR BY
PROSECUTION, IS INDEFENSIBLE - IT EXCEEDS THE CONGRESSIONAL POWER:
EXPOSURE FOR THE SAKE OF EXPOSURE IS NOT LEGISLATIVE INQUIRY. 

"THE POWER TO INVESTIGATE MUST NOT BE CONFUSED WITH ANY OF THE POWERS
OF LAW ENFORCEMENT  ...  ."  QUINN V. UNITED STATES, 349 U.S. 155, 161;
SEE UNITED STATES V. ICARDI, 140 F. SUPP. 383.  ON THE OTHER HAND, SO
LONG AS THE SUBJECT MATTER IS NOT IN "AN AREA IN WHICH CONGRESS IS
FORBIDDEN TO LEGISLATE," QUINN, SUPRA, AT 161, THE MERE FACT THAT THE
CONDUCT UNDER INQUIRY MAY HAVE SOME RELEVANCE TO THE SUBJECT MATTER OF
A PENDING STATE INDICTMENT CANNOT ABSOLUTELY FORECLOSE CONGRESSIONAL
INQUIRY.  SURELY IT CANNOT BE SAID THAT A FAIR CRIMINAL TRIAL AND A
FULL POWER OF INQUIRY ARE INTERESTS THAT DEFY ACCOMMODATION.  THE
COURTS, RESPONSIBLE FOR PROTECTING BOTH THESE VITAL INTERESTS, WILL
GIVE THE CLOSEST SCRUTINY TO ASSURE THAT INDEED A LEGISLATIVE PURPOSE
WAS BEING PURSUED AND THAT THE INQUIRY WAS NOT AIMED AT AIDING THE
CRIMINAL PROSECUTION.  EVEN WITHIN THE REALM OF RELEVANT INQUIRY, THERE
MAY BE SITUATIONS IN WHICH FUNDAMENTAL FAIRNESS WOULD DEMAND
POSTPONEMENT OF INQUIRY UNTIL AFTER AN IMMEDIATELY PENDING TRIAL, OR
THE TAKING OF TESTIMONY IN EXECUTIVE SESSION - OR THAT THE STATE GRANT
A CONTINUANCE IN THE TRIAL.  ON WHAT IS BEFORE US NOW, I THINK THAT THE
FACTS FAIL TO SHOW THAT THIS INQUIRY WAS UNABLE TO PROCEED WITHOUT
WORKING A SERIOUS LIKELIHOOD OF UNFAIRNESS.  EXAMINING THE CHALLENGED
QUESTIONING IN THE FULL CONTEXT OF THE CONGRESSIONAL INQUIRY AND ITS
RELEVANCE TO LEGISLATION IN PROCESS, LEADS ME TO CONCLUDE THAT
PETITIONER WAS NOT QUESTIONED FOR EXPOSURE'S SAKE. 

THE SELECT COMMITTEE BEGAN ITS HEARINGS IN 1957.  THE COMMITTEE
ENGAGED FROM THE START IN GATHERING FACTS WHICH LED TO THE CONCLUSION
THAT LEGISLATION REQUIRING LABOR ORGANIZATIONS TO REPORT AND DISCLOSE
VARIOUS MATTERS ABOUT THEIR OPERATION WAS NECESSARY.  THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 519,
RESULTED.  MANY FEATURES OF THAT STATUTE STEM FROM FACTS LEARNED BY THE
SELECT COMMITTEE'S EXAMINATION INTO THE AFFAIRS OF SEVERAL LABOR
ORGANIZATIONS, THOUGH THE DRAFTING WAS THE WORK OF THE SENATE
SUBCOMMITTEE ON LABOR AND THE HOUSE SUBCOMMITTEE ON LABOR-MANAGEMENT
RELATIONS.  (FN2)  THE SUBCOMMITTEES AND THEIR PARENT STANDING
COMMITTEES FRAMED THE STATUTE AFTER CONSIDERING THE SELECT COMMITTEE'S
FINDINGS.  SEE, E.G., S. REP. NO. 1684, 85TH CONG., 2D SESS. 1 (1958);
S. REP. NO. 187, 86TH CONG., 1ST SESS. 2 (1959); H.R. REP. NO. 741,
86TH CONG., 1ST SESS. 1 (1959); SEE ALSO S. DOC. NO. 10, 86TH CONG.,
1ST SESS. 1 (1959).  THE BILLS REPORTED OUT BY THOSE COMMITTEES RECITED
THAT THEIR PURPOSE WAS "TO PROVIDE FOR THE REPORTING AND DISCLOSURE OF
CERTAIN FINANCIAL TRANSACTIONS AND ADMINISTRATIVE PRACTICES OF LABOR
ORGANIZATIONS AND EMPLOYERS, TO PREVENT ABUSES IN THE ADMINISTRATION OF
TRUSTEESHIPS BY LABOR ORGANIZATIONS, TO PROVIDE STANDARDS WITH RESPECT
TO THE ELECTION OF OFFICERS OF LABOR ORGANIZATIONS  ...  ."  THE SECOND
PARAGRAPH OF THE PREAMBLE TO THE BILLS INCLUDED THE FOLLOWING: "THE
CONGRESS FURTHER FINDS, FROM RECENT INVESTIGATIONS IN THE LABOR AND
MANAGEMENT FIELDS, THAT THERE HAVE BEEN A NUMBER OF INSTANCES OF BREACH
OF TRUST, CORRUPTION, DISREGARD OF THE RIGHTS OF INDIVIDUAL EMPLOYEES,
AND OTHER FAILURES TO OBSERVE HIGH STANDARDS OF RESPONSIBILITY AND
ETHICAL CONDUCT WHICH REQUIRE FURTHER AND SUPPLEMENTARY LEGISLATION
...  ."  S. 1555 AND H.R. 8342, 86TH CONG., 1ST SESS. (1959); SEE ALSO
S. 3974, 85TH CONG., 2D SESS. (1958).    AT THE OPENING OF THE SELECT
COMMITTEE'S HEARINGS ON FEBRUARY 26, 1957, THE CHAIRMAN, SENATOR
MCCLELLAN, NOTED PETITIONER'S UNION AS ONE OF THOSE THAT THE COMMITTEE
INTENDED TO INVESTIGATE.  HEARINGS, 2.  ALTHOUGH THE COMMITTEE'S
HEARINGS DURING THE 16 MONTHS BEFORE THEY REACHED PETITIONER WERE VERY
FULL, THEY HAD TOUCHED UPON THE AFFAIRS OF ONLY A FEW UNIONS, AND
PETITIONER'S WAS ONLY THE FOURTH UNION INQUIRED INTO WITH A PARTICULAR
VIEW TOWARD DISCOVERING MODES OF MISUSING UNION FUNDS.  SEE HEARINGS,
AT 2581, 3221, 7512, AND 11786.  PETITIONER WAS SUBPOENAED ON MAY 20,
1958, TO APPEAR BEFORE THE COMMITTEE ON JUNE 2; HIS OWN APPEARANCE WAS
PUT OFF TO JUNE 27, ALTHOUGH TESTIMONY OF OTHER WITNESSES WAS TAKEN
COMMENCING ON JUNE 4.  THREE MONTHS BEFORE HE WAS SUBPOENAED, THE STATE
INDICTMENT AGAINST HIM WAS HANDED UP, ON FEBRUARY 18, 1958.  HE WAS NOT
TRIED UNTIL NOVEMBER 1960, ABOUT 29 MONTHS AFTER HIS APPEARANCE BEFORE
THE COMMITTEE.  AT THE TIME HE APPEARED, THE QUESTIONING WAS DIRECTLY
RELEVANT TO THE COMMITTEE'S EFFORTS TO INFORM ITSELF AND CONGRESS AND
TO SECURE LEGISLATION WITHIN CONGRESSIONAL POWER TO ENACT, AIMED AT
CORRECTING JUST SUCH EVILS AS THOSE ABOUT WHICH PETITIONER WAS
QUESTIONED.  EARLIER IN JUNE 1958, A LABOR-MANAGEMENT REPORTING AND
DISCLOSURE BILL, THE KENNEDY-IVES BILL, WAS REPORTED OUT BY THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE AND PASSED BY THE SENATE, BUT IN
AUGUST IT FAILED OF PASSAGE IN THE HOUSE.  104 CONG. REC. 10657, 11486
11487, 18287-18288.  THEREFORE A BILL WAS REINTRODUCED ON JANUARY 20,
1959, NOW KNOWN AS THE KENNEDY-ERVIN BILL.  IN INTRODUCING IT, SENATOR
KENNEDY READ A LETTER FROM EX-SENATOR IVES WHICH SAID:  "THE BILL IS
DESIGNED TO MEET THE OBJECTIVES SET FORTH IN THE REPORT OF THE SENATE
SELECT COMMITTEE ON IMPROPER ACTIVITIES IN THE LABOR OR MANAGEMENT
FIELD."  2 N.L.R.B., LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT OF 1959, P. 968.  THE SENATE SUBCOMMITTEE
ON LABOR THEN CONDUCTED INTENSIVE HEARINGS ON THAT AND ALTERNATIVE
BILLS.  (FN3)  IN OPENING THOSE HEARINGS, SENATOR KENNEDY SAID "WE
EXPECT FURTHER RECOMMENDATIONS FROM THE MCCLELLAN COMMITTEE IN ITS
SECOND ANNUAL REPORT, AND WE EXPECT TO HAVE THE ADVICE OF AN EXPERT
PANEL ON LABOR LAW REVISION WHICH WILL FORM THE BASIS OF FURTHER
HEARINGS AND ANOTHER BILL LATER THIS YEAR."  (FN4)  RELIANCE ON THE
WORK OF THE SELECT COMMITTEE WAS EVIDENT AND SIGNIFICANT IN THOSE
HEARINGS.  HEARINGS BEFORE THE HOUSE SUBCOMMITTEE BEGAN AFTER THE
CONCLUSION OF THE HEARINGS BY THE SENATE SUBCOMMITTEE, AND CONTINUED
INTO JUNE.  (FN5)  SPIRITED DEBATE OVER THE MERITS OF THE PROPOSED
LEGISLATION CONTINUED THROUGHOUT THAT SESSION OF CONGRESS UNTIL
ENACTMENT AS THE ACT OF SEPTEMBER 14, 1959, PUB. L. 86-257.  SECTION
2(B) OF THE DECLARATION OF FINDINGS, PURPOSES, AND POLICY INCORPORATES
THE ABOVE-QUOTED FINDINGS OF THE SECOND PARAGRAPH OF THE KENNEDY-ERVIN
BILL.  IT WAS NOT UNTIL 14 MONTHS AFTER PASSAGE THAT PETITIONER WAS
TRIED. 

THE QUESTIONING OF PETITIONER COMES INTO FOCUS AGAINST THIS
BACKGROUND OF AN INQUIRY BEGUN BY THE SELECT COMMITTEE MORE THAN A YEAR
BEFORE PETITIONER'S INDICTMENT AND CONTINUED BY BOTH THE SELECT
COMMITTEE AND THE SENATE AND HOUSE LABOR SUBCOMMITTEES WELL AFTER
PETITIONER'S APPEARANCE, ALL AIMED AT AND CULMINATING IN LEGISLATION. 
IN THIS LIGHT, PETITIONER'S INTERROGATION EMERGES AS BUT ONE STEP IN
THE PROCESS OF FACT-GATHERING TO ESTABLISH THE NECESSITY FOR AND THE
NATURE OF REMEDIAL LEGISLATION, AND I CANNOT SAY THAT IT WAS AN
UNNECESSARY STEP, OR THAT THE RECORD SUPPORTS A CONCLUSION THAT THE
SELECT COMMITTEE QUESTIONED PETITIONER TO AFFECT HIS STATE TRIAL. 

FN1  WE ARE INFORMED THAT THE PETITIONER WAS CONVICTED UNDER THE
INDICTMENT AT A TRIAL HELD SOME 29 MONTHS AFTER HIS APPEARANCE BEFORE
THE COMMITTEE, BUT WE ARE NOT INFORMED WHETHER THE COMMITTEE
PROCEEDINGS WERE PART OF THE STATE'S PROOFS OR OTHERWISE AFFECTED THE
TRIAL.  CLERELY, HOWEVER, ANY CONTENTION AS TO UNFAIRNESS IN HIS STATE
TRIAL MUST ABIDE REVIEW OF THAT CONVICTION. 

FN2  THE SELECT COMMITTEE'S MEMBERSHIP THROUGHOUT INCLUDED TWO
MEMBERS OF THE SENATE SUBCOMMITTEE ON LABOR, SENATORS KENNEDY AND
GOLDWATER, WHO PARTICIPATED ACTIVELY IN THE WORK OF BOTH COMMITTEES. 

FN3  HEARINGS BEFORE THE SUBCOMMITTEE ON LABOR OF THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE, ON LABOR-MANAGEMENT REFORM
LEGISLATION, 86TH CONG., 1ST SESS. (JANUARY THROUGH MARCH 1959). 

FN4  ID., AT 40-41. 

FN5  HEARINGS BEFORE A JOINT SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
EDUCATION AND LABOR, ON LABOR-MANAGEMENT REFORM LEGISLATION, 86TH
CONG., 1ST SESS. (MARCH THROUGH JUNE 1959). 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THIS CASE HIGHLIGHTS THE PROBLEM OF DEFINING CONSTITUTIONAL
LIMITATIONS UPON CONGRESSIONAL COMMITTEES ENDOWED WITH COMPULSORY
PROCESS.  AND BECAUSE I FIRMLY BELIEVE THAT CONTINUED SANCTION OF
INVESTIGATIVE POWERS LEADING TO ABRIDGMENT OF INDIVIDUAL RIGHTS
SERIOUSLY IMPAIRS THE INTENT OF THE FRAMERS OF OUR BILL OF RIGHTS, I
DISSENT FROM MR. JUSTICE HARLAN'S TREATMENT OF THE CONSTITUTIONAL ISSUE
PRESENTED HERE.  THAT ISSUE MAY BE SIMPLY STATED:  IS IT A VIOLATION OF
THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW FOR A LEGISLATIVE
COMMITTEE, UNDER THE CIRCUMSTANCES OF THIS CASE, TO INQUIRE INTO
MATTERS FOR WHICH THE WITNESS IS ABOUT TO BE TRIED UNDER A PENDING
CRIMINAL INDICTMENT? 

THE PETITIONER, ALREADY INDICTED AND AWAITING TRIAL IN A STATE COURT,
WAS SUBPOENAED TO TESTIFY BEFORE A CONGRESSIONAL COMMITTEE
INVESTIGATING UNION ACTIVITY AND UNION FUNDS.  WHEN THE QUESTIONING LED
TO MATTERS CONCERNING FACTS UPON WHICH THE STATE INDICTMENT WAS BASED,
(FN1) THE DILEMMA THE PETITIONER FOUND FACING HIM WAS THIS:  IF HE
ANSWERED TRUTHFULLY HIS ANSWERS MIGHT AID THE PENDING PROSECUTION;
(FN2) IF HE ANSWERED FALSELY, HE COULD HAVE BEEN PROSECUTED FOR
PERJURY; (FN3) AND, IF HE RELIED ON THE FIFTH AMENDMENT'S PRIVILEGE
AGAINST SELF-INCRIMINATION, THAT FACT COULD BE ADMITTED AGAINST HIM IN
THE STATE CRIMINAL TRIAL.  (FN4)  MR. JUSTICE HARLAN'S OPINION NOW
HOLDS THAT PETITIONER'S DILEMMA HAD A FOURTH HORN; HE MAY ALSO BE SENT
TO JAIL FOR REFUSING TO CHOOSE IMPOSITION OF ONE OF THESE PENALTIES.  I
BELIEVE THAT NEITHER THE CONSTITUTION NOR OUR PAST DECISIONS ALLOW
CONGRESS TO ENLIST THE AID OF THE FEDERAL COURTS TO DO TO THIS MAN WHAT
FOUR MEMBERS OF THE COURT PERMIT. 

IN 1821 THIS COURT HELD FOR THE FIRST TIME IN ANDERSON V. DUNN, 6
WHEAT.  204, THAT ALTHOUGH THE CONSTITUTION DID NOT EXPRESSLY GRANT TO
CONGRESS THE POWER TO CONDUCT INVESTIGATIONS, SUCH A POWER, WITHIN
LEGISLATIVE COMPETENCE, COULD BE IMPLIED BECAUSE IT IS INHERENT IN THE
LAWMAKING PROCESS.  THIS INVESTIGATIVE FUNCTION OF CONGRESS IS, OF
COURSE, ENTIRELY INDEPENDENT OF THE JUDICIAL BRANCH OF THE GOVERNMENT
IN STRICT SEPARATION-OF-POWER TERMS.  HOWEVER, CONGRESS, NO LESS THAN
OTHER BRANCHES OF THE GOVERNMENT, IF BOUND TO SAFEGUARD INDIVIDUAL
LIBERTIES PROTECTED BY THE BILL OF RIGHTS, AND IT IS THE DUTY OF THE
COURTS TO INSURE THAT THE SPECIFIC GUARANTEES OF LIBERTY ARE PRESERVED
FOR WITNESSES BEFORE A LEGISLATIVE BODY JUST AS THEY ARE GUARDED FOR
THE BENEFIT OF DEFENDANTS IN A CRIMINAL COURT TRIAL.  THIS DUTY CANNOT
BE PERFORMED NOR CAN THE JUDICIAL CONSCIENCE BE STILLED BY A KIND OF
HAND-WASHING STATEMENT THAT A LEGISLATIVE COMMITTEE (IN SOME INSTANCES
A COMMITTEE OF A SINGLE PERSON DELEGATED WITH FULL INVESTIGATIVE POWER)
MAY FINALLY DETERMINE FOR THE COURTS, NOT ONLY THE IMPORTANCE AND
RELEVANCY OF A MATTER UNDER INVESTIGATION, BUT ALSO THAT THE COMMITTEE
HAS THE CONSTITUTIONAL POWER TO ASK THE QUESTIONS IT WANTS TO ASK AT
THE MOMENT.  A FULL COURT DECIDED IN KILBOURN V. THOMPSON, 103 U.S.
168, THAT THE COURTS MUST ULTIMATELY DETERMINE WHO SHALL BE SENT TO
JAIL AND THAT ONLY THE COURTS MAY DETERMINE WHETHER QUESTIONS ASKED BY
A COMMITTEE ARE WITHIN CONGRESS' CONSTITUTIONAL POWER OF INQUIRY. 
(FN5)  AND IN OUR MORE RECENT CASES, "THE CENTRAL THEME," AS WE STATED
IN WATKINS V. UNITED STATES, 354 U.S. 178, 195, HAS BEEN "THE
APPLICATION OF THE BILL OF RIGHTS AS A RESTRAINT UPON THE ASSERTION OF
GOVERNMENTAL POWER IN THIS FORM."  (FN6)  THIS INCLUDES ALL PROVISIONS
OF THE BILL OF RIGHTS - THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT,
AS WELL AS THAT AMENDMENT'S PROTECTION AGAINST SELF-INCRIMINATION. 

MR. JUSTICE HARLAN'S OPINION FAILS TO RECOGNIZE THAT THE ESSENCE OF
PETITIONER'S CONTENTION IS THAT LARGELY BECAUSE OF THIS COURT'S
DECISIONS IN HALE V. HENKEL, 201 U.S. 43, AND UNITED STATES V. MURDOCK,
284 U.S. 141, THE INTERROGATION ON MATTERS FOR WHICH HE HAD ALREADY
BEEN INDICTED WAS A VIOLATION OF DUE PROCESS.  CF. AIUPPA V. UNITED
STATES, 201 F.2D 287, 300.  THE DUTY OF COURTS TO SAFEGUARD AN
INDIVIDUAL'S PERSONAL LIBERTY AND TO PROTECT HIM FROM BEING COMPELLED
TO ANSWER QUESTIONS OUTSIDE THE CONSTITUTIONAL POWER OF CONGRESS, TO
WHICH I HAVE REFERRED ABOVE, IS PARTICULARLY PERTINENT WHEN CONGRESS
HAS ENLISTED THE AID OF THE FEDERAL COURTS TO PROTECT ITSELF AGAINST
CONTUMACIOUS CONDUCT AND RECALCITRANT WITNESSES.  2 U.S.C.  SEC. 192. 
IN FULFILLING THEIR RESPONSIBILITIES UNDER THIS STATUTE THE COURTS MAY
NOT SIMPLY ASSUME THAT EVERY CONGRESSIONAL INVESTIGATION IS
CONSTITUTIONALLY CONDUCTED MERELY BECAUSE IT IS SHOWN THAT GREAT
NATIONAL INTERESTS LIE IN PASSING NEEDED LEGISLATION.  (FN7)  TO DO SO
WOULD BE TO ABDICATE THE RESPONSIBILITY PLACED BY THE CONSTITUTION UPON
THE JUDICIARY TO INSURE THAT NO BRANCH OF THE GOVERNMENT TRANSGRESSES
CONSTITUTIONAL LIMITATIONS.  SEE MARBURY V. MADISON, 1 CRANCH 137. 

ACCOMMODATION OF THE CONGRESSIONAL NEED FOR PARTICULAR INFORMATION
WITH THE INDIVIDUAL AND NATIONAL INTEREST IS ASSURING DISPASSIONATE
PROTECTION FOR WITNESSES AGAINST UNCONSTITUTIONAL ENCROACHMENT UPON
THEIR INDIVIDUAL RIGHTS HAS PROVED TO BE AN ARDUOUS TASK THROUGHOUT
THIS NATION'S HISTORY.  ONE PRINCIPLE, HOWEVER, FORMULATED TO KEEP
CONGRESSIONAL POWER OF PUNISHMENT TO COMPEL TESTIMONY WITHIN THE VERY
NARROWEST OF LIMITS, SEEMS TO HAVE WITHSTOOD EROSION BY THE PASSAGE OF
TIME AND THE EVER-INCREASING COMPLEXITIES IN CARRYING OUT THE
LEGISLATIVE FUNCTION.  THAT PRINCIPLE IS THAT IN EXERCISING ITS POWER
TO COMPEL TESTIMONY, CONGRESS MUST UTILIZE "THE LEAST POSSIBLE POWER
ADEQUATE TO THE END PROPOSED."  ANDERSON V. DUNN, 6 WHEAT, 204, 230
231.  AND, IN KILBOURN V. THOMPSON, SUPRA, DECIDED IN 1880, THIS COURT
HAD OCCASION TO EMPHASIZE THE NARROWNESS OF THIS CONGRESSIONAL POWER. 
IN MY OPINION, THE LATTER CASE IS MORE LIKE THE INSTANT ONE THAN ANY
OTHER IN OUR REPORTS AND I BELIEVE THE PRINCIPLES UPON WHICH IT WAS
DECIDED CALL FOR A REVERSAL OF THE CONVICTION OF PETITIONER HERE. 
(FN8) 

IT IS IMPORTANT, I BELIEVE, TO REITERATE THE BASIC CONCEPT ENUNCIATED
THERE:  THAT IT IS FOR THE COURTS, AND NOT FOR CONGRESS, IN INSURING TO
ALL PERSONS THE SAFEGUARDS OF THE BILL OF RIGHTS, TO ESTABLISH THE
CONSTITUTIONAL STANDARDS WHICH MUST BE OBSERVED BEFORE PEOPLE IN THIS
COUNTRY CAN LEGALLY BE SENT TO PRISON.  THE CASE AROSE IN THIS MANNER:
WHILE A UNITED STATES DISTRICT COURT, PURSUANT TO ITS COMPETENT
JURISDICTION, WAS ADMINISTERING THE ESTATE OF THE BANKRUPT FIRM OF JAY
COOK & COMPANY, WHICH OWED MONEY TO THE UNITED STATES GOVERNMENT, THE
HOUSE OF REPRESENTATIVES PASSED A RESOLUTION TO INVESTIGATE A
SETTLEMENT MADE BY THE TRUSTEE.  THE BASIS FOR THIS ACTION WAS THAT THE
SETTLEMENT ALLEGEDLY WOULD BE TO THE DISADVANTAGE OF CREDITORS,
INCLUDING THE GOVERNMENT, AND THAT THE COURTS WERE POWERLESS TO AFFORD
ADEQUATE RELIEF BECAUSE OF THE SETTLEMENT.  KILBOURN WAS SUBPOENAED TO
APPEAR AS A WITNESS AND TO BRING RECORDS, PAPERS AND MAPS "PERTINENT TO
THE QUESTION UNDER INQUIRY."  KILBOURN REFUSED AND WAS CONVICTED BY THE
HOUSE OF CONTEMPT.  IN HOLDING THAT THE HOUSE HAD EXCEEDED ITS POWER, A
UNANIMOUS COURT FORCEFULLY ANNOUNCED RESTRICTIONS UPON THE
CONGRESSIONAL POWER TO PUNISH FOR CONTEMPT AND, AT THE SAME TIME, MADE
IT EMPHATICALLY CLEAR THAT THOSE RESTRICTIONS ARE EQUALLY APPLICABLE TO
THE CONGRESSIONAL POWER TO COMPEL TESTIMONY.  THUS, WHEN A COMMITTEE
ATTEMPTS TO EXERCISE AN EXTRAORDINARY AND UNWARRANTED ASSUMPTION OF
JUDICIAL POWER, THIS COURT MUST STRIKE IT DOWN, JUST AS IT HAS DONE IN
A SITUATION IN WHICH THE POWER TO INVESTIGATE INFRINGED UPON POWERS OF
LAW ENFORCEMENT AGENCIES.  CF. QUINN V. UNITED STATES, 349 U.S. 155,
161. 

WHEN THE CIRCUMSTANCES OF THE INSTANT CASE ARE COMPARED TO THOSE
WHICH PROMPTED THE COURT TO VOID THE CONVICTION IN KILBOURN, A STRIKING
SIMILARITY EMERGES.  INDEED, THE MAJOR DIFFERENCE IN THE CIRCUMSTANCES
OF THE TWO CASES - THAT IS, THAT THIS CASE INVOLVES A CRIMINAL
INDICTMENT PENDING AGAINST THE WITNESS WHILE KILBOURN INVOLVED ONLY A
CIVIL SUIT - WOULD SEEM TO MAKE THIS CASE EVEN STRONGER THAN KILBOURN. 
THE COURT'S CHIEF RELIANCE FOR HOLDING THAT CONGRESS EXCEEDED ITS
POWERS IN THE KILBOURN CASE WAS THAT THE TRANSACTIONS INTO WHICH
CONGRESS INQUIRED WERE PENDING IN A COURT, THAT THE INVESTIGATION WAS
ONE "JUDICIAL IN ITS CHARACTER, AND COULD ONLY BE PROPERLY AND
SUCCESSFULLY MADE BY A COURT OF JUSTICE"; AND, SINCE THE INQUIRY
"RELATED TO A MATTER WHEREIN RELIEF OR REDRESS COULD BE HAD ONLY BY A
JUDICIAL PROCEEDING,  ...  THAT THE POWER ATTEMPTED TO BE EXERCISED WAS
ONE CONFINED BY THE CONSTITUTION TO THE JUDICIAL AND NOT TO THE
LEGISLATIVE DEPARTMENT OF THE GOVERNMENT."  KILBOURN V. THOMPSON,
SUPRA, AT 192-193.  THE COURT SUMMED UP ITS VIEW OF THE CIRCUMSTANCES
THAT SHOWED AN ABSENCE OF CONGRESSIONAL POWER TO ASK KILBOURN THE
QUESTIONS IT DID WITH THIS STATEMENT:  "THE MATTER WAS STILL PENDING IN
A COURT, AND WHAT RIGHT HAD THE CONGRESS OF THE UNITED STATES TO
INTERFERE WITH A SUIT PENDING IN A COURT OF COMPETENT JURISDICTION?" 
IN THIS CASE THE PARTICULAR SUBJECT OF THE COMMITTEE'S INQUIRY TO WHICH
THE PETITIONER OBJECTED WAS WHETHER HE HAD IN THE PAST BEEN UNFAITHFUL
TO HIS UNION IN ADMINISTERING ITS FUNDS.  AN INDICTMENT WAS THEN
PENDING AGAINST PETITIONER IN A COURT OF COMPETENT JURISDICTION
CHARGING HIM WITH USING THOSE SAME FUNDS FOR AN UNLAWFUL PURPOSE. 
(FN9)  THE CONGRESSIONAL COMMITTEE, JUST AS THE HOUSE IN KILBOURN, HAD
NO PWOER TO GRANT THE UNION RELIEF OR REDRESS OF ANY KIND FOR THAT
ALLEGED BREACH OF TRUST BY PETITIONER.  SO FAR AS CONGRESS WAS
CONCERNED IN KILBOURN, THE DIFFERENCES BETWEEN JAY COOK AND ITS
CREDITORS WERE HELD TO BE THEIR "PRIVATE AFFAIR" ABOUT WHICH CONGRESS
COULD NOT COMPEL A WITNESS TO ANSWER; THUS, A PENDING CIVIL CASE WAS
ENOUGH TO BAR INQUIRIES CONCERNING THE TRANSACTIONS IN THAT
LITIGATION.  THERE IS FAR MORE REASON,IT SEEMS TO ME, TO APPLY THAT
PRINCIPLE TO THIS CASE WHERE CONGRESS ATTEMPTS TO COMPEL A WITNESS TO
SUPPLY TESTIMONY WHICH COULD BE USED TO HELP CONVICT HIM OF A CRIME. 

IN SO VIEWING THIS MATTER I DO NOT OVERLOOK THE ARGUMENT IN MR.
JUSTICE HARLAN'S OPINION THAT THIS PARTICULAR TESTIMONY WAS RELEVANT TO
THE CONGRESSIONAL INVESTIGATION OF THE HANDLING OF UNION FUNDS BY THEIR
OFFICERS IN ORDER TO HELP CONGRESS DECIDE IF IT SHOULD ENACT
LEGISLATION IN THIS FIELD, AND, IF SO, WHAT KIND OF LEGISLATION IT
SHOULD ENACT.  CONCEDING THAT UNDER ANDERSON AND KILBOURN THE COMMITTEE
HERE HAD THE POWER TO ASK GENERAL QUESTIONS ALONG THIS LINE, IT DOES
NOT FOLLOW THAT IT COULD MAKE DETAILED INQUIRIES ABOUT THE CONDUCT OF A
WITNESS THAT RELATED SPECIFICALLY TO A CRIME WITH WHICH HE WAS ALREADY
CHARGED AND FOR WHICH HE WAS SOON TO BE TRIED IN A COURT OF COMPETENT
JURISDICTION.  (FN10)  NOT ONLY WOULD IT BE CONTRARY TO THE HOLDING IN
KILBOURN TO CONCLUDE OTHERWISE, BUT IT IS INCOMPREHENSIBLE TO ME HOW IT
CAN BE URGED THAT CONGRESS NEEDED THE DETAILS OF HOW PETITIONER
COMMITTED THIS ALLEGED CRIME IN ORDER TO PASS GENERAL LEGISLATION ABOUT
UNION FUNDS.  IT WOULD BE HARD, INDEED, I BELIEVE, TO MAKE RATIONAL
PROOF THAT TO REFUSE TO CONGRESS THE POWER TO COMPEL TESTIMONY FROM A
WITNESS ABOUT A MATTER FOR WHICH HE IS ABOUT TO BE TRIED CRIMINALLY,
WOULD INVADE THE AREA OF "THE LEAST POSSIBLE POWER ADEQUATE" TO ENABLE
CONGRESS TO LEGISLATE ABOUT UNION OFFICERS AND UNION FUNDS. 

IN MY VIEW, IT IS NOT A SATISFACTORY APPROACH TO PROBLEMS INVOLVING
PRINCIPLES OF CONSTITUTIONAL DIMENSION TO LOOK FIRST TO THE INTERESTS
OF THE GOVERNMENT AND, IF THEY LOOM LARGE IN THE PARTICULAR INSTANCE,
TO GO NO FURTHER.  THE COUNTERVAILING PRINCIPLES EMBODIED IN OUR BILL
OF RIGHTS DO NOT DEMAND ATTENTION ONLY WHEN THE GOVERNMENTAL INTEREST
LACKS COMPULSION.  THE BILL OF RIGHTS DEMANDS MUCH MORE THAN THAT.  IN
JUDGING WHETHER CONGRESS HAS USED, "THE LEAST POSSIBLE POWER ADEQUATE
TO THE END PROPOSED," THE COURTS MUST ASSURE THAT ANY POSSIBLE
INFRINGEMENT ON PERSONAL RIGHTS BE MINIMIZED.  IN THIS DETERMINATION
THE COURTS MUST CONSIDER FACTORS SUCH AS THE DEGREE OF NEED OF THE
INVESTIGATING COMMITTEE FOR THE PARTICULAR INFORMATION REQUESTED AND
WHETHER THE COMMITTEE IS ABLE TO GET THE DESIRED INFORMATION FROM SOME
EVIDENTIARY SOURCE OTHER THAN FROM A WITNESS PRESENTLY UNDER CRIMINAL
INDICTMENT ON A CHARGE RELATING TO THOSE VERY FACTS.  THE FACT THAT IN
THIS CASE INDIANA APPEARS TO HAVE HAD SUFFICIENT EVIDENCE TO SECURE AN
INDICTMENT AGAINST THE PETITIONER IS ADEQUATE INDICATION THAT
INDEPENDENT SOURCES OF INFORMATION WERE EASILY AVAILABLE TO THE
COMMITTEE BY WHICH IT COULD HAVE OBTAINED THE VERY INFORMATION IT
SOUGHT HERE WITHOUT JEOPARDIZING THE CONSTITUTIONAL RIGHTS OF THE
PETITIONER BY ASKING HIM ABOUT IT.  MOREOVER, IT CANNOT BE ARGUED WITH
PERSUASION THAT CONGRESS WOULD BE MET WITH AN INSURMOUNTABLE BARRIER IN
GATHERING NEEDED INFORMATION IF A DEFENDANT IN A PENDING CRIMINAL TRIAL
COULD NOT BE COMPELLED TO ANSWER QUESTIONS BEFORE A LEGISLATIVE
COMMITTEE RELEVANT TO THAT INDICTMENT.  CONGRESS HAS SHOWN THAT IT HAS
AT ITS COMMAND MEANS FOR REMOVING ANY SUCH BARRIER.  SEE ADAMS V.
MARYLAND, 347 U.S. 179. 

THE PROCESS THROUGH WHICH THE RESULT HAS BEEN REACHED IN MR. JUSTICE
HARLAN'S OPINION SEEMS TO ME TO IGNORE THE VERY REASONS THE BILL OF
RIGHTS WAS INCORPORATED INTO OUR CONSTITUTION.  THOSE PROVISIONS WERE
ADOPTED AS, AND ARE INTENDED TO BE, RESTRAINTS UPON ACTIONS BY THE
GOVERNMENT WHICH TRESPASS UPON PERSONAL LIBERTIES RESERVED TO THE
INDIVIDUAL IN OUR SOCIETY.  IF, AS I BELIEVE, THE CONSTITUTION HAS
BARRED THE GOVERNMENT FROM PROCEEDING IN A PARTICULAR INSTANCE, DESPITE
THE CONCEDED VALIDITY OF ITS INTEREST IN THE TESTIMONY, THE COURTS ARE
DUTY BOUND TO STAND FAST AGAINST ANY IMPAIRMENT OF THE INDIVIDUAL'S
GUARANTEED RIGHTS.  CONGRESS CANNOT, BY IMPOSING UPON THE COURTS THE
RESPONSIBILITY FOR COMMITTING PERSONS TO JAIL FOR CONTEMPT OF ITS
COMMITTEES, EXPECT OR REQUIRE THE COURTS TO APPLY LOWER STANDARDS THAN
ARE COMPELLED BY THE BILL OF RIGHTS, ANY MORE THAN IT COULD DIRECT THE
COURTS TO SUPPRESS THOSE SAME RIGHTS IN JUDICIAL PROCEEDINGS.  THE BILL
OF RIGHTS, NOT CONGRESS, ESTABLISHES THE STANDARDS WHICH MUST BE
OBSERVED BEFORE PEOPLE IN THIS COUNTRY MAY LEGALLY BE SENT TO JAIL.  A
CONGRESSIONAL COMMITTEE HAS THE POWER TO COMPEL TESTIMONY TO AID IT IN
SHAPING LEGISLATION, BUT IT DOES NOT HAVE THE POWER MERELY TO PUBLICIZE
A CITIZEN'S SHORTCOMINGS OR TO AID A STATE IN CONVICTING HIM OF CRIME. 
I CONSIDER A PROCEDURE WHICH PINIONS A CITIZEN WITHIN A DILEMMA SUCH AS
WAS CREATED BY THE CIRCUMSTANCES OF THIS CASE, AND WHICH GOES BEYOND
"THE LEAST POSSIBLE POWER" ADEQUATE TO ACCOMPLISH CONGRESS'
CONSTITUTIONALLY PERMISSIBLE ENDS, A DIRECT ENCROACHMENT UPON RIGHTS
SECURED BY DUE PROCESS OF LAW.  TO SEND THIS MAN TO JAIL FOR HIS
REFUSAL TO ANSWER QUESTIONS THAT, BECAUSE OF THE CIRCUMSTANCES OF THIS
CASE, ARE OUTSIDE THE POWER OF A COMMITTEE TO ASK IS, AS KILBOURN V.
THOMPSON HELD, A PLAIN DENIAL OF THAT PROCESS GUARANTEED BY THE FIFTH
AMENDMENT TO OUR FEDERAL CONSTITUTION.  I WOULD REVERSE THE
CONVICTION. 

FN1  MR. JUSTICE HARLAN SEEMS TO QUESTION THE RELATION OF THE
QUESTIONS ASKED BY THE COMMITTEE WITH THE SUBJECT MATTER OF THE STATE
INDICTMENT (SEE PP. 617-618, ANTE).  OF COURSE CONGRESS' CONCERN WAS
WHETHER UNION FUNDS HAD BEEN USED FOR AN UNLAWFUL PURPOSE, WHEREAS THE
STATE WAS CONCERNED WITH HOW THE FUNDS HAD BEEN UNLAWFULLY USED. 
HOWEVER, A TRUTHFUL ANSWER TO THE QUESTION ASKED BY THE COMMITTEE WOULD
A FORTIORI HAVE ANSWERED THE STATE'S INQUIRY IF IN FACT THE PETITIONER
HAD USED UNION FUNDS IN VIOLATION OF STATE LAW.  AS STATED BY MR.
JUSTICE BRENNAN IN HIS CONCURRING OPINION (SEE P. 623, ANTE):  "  ...
THE CONGRESSIONAL INQUIRY AND THE STATE PROSECUTION CROSSED PATHS WHEN
THE COMMITTEE LEARNED THAT UNION FUNDS MIGHT HAVE BEEN USED IN A
CORRUPT ATTEMPT TO FORESTALL AN EARLIER INDICTMENT IN ANOTHER COUNTY
...  FOR THE SAME ALLEGED OFFENSE." 

FN2  DAVIDSON V. STATE, 205 IND. 564, 569, 187 N.E. 376, 378. 

FN3  18 U.S. C. SEC. 1621. 

FN4  CRICKMORE V. STATE, 213 IND. 586, 592-593, 12 N.E.2D 266, 269;
STATE V. SCHOPMEYER, 207 IND. 538, 194 N.E. 144.  AND, BY OUR
DECISIONS, SUCH A USE BY THE STATE COURT WOULD NOT BE BARRED.  ADAMSON
V. CALIFORNIA, 332 U.S. 46; TWINING V. NEW JERSEY, 211 U.S. 78. 

FN5  103 U.S. 168, 197: 

"IF THEY (THE HOUSE OF CONGRESS) ARE PROCEEDING IN A MATTER BEYOND
THEIR LEGITIMATE COGNIZANCE, WE ARE OF OPINION THAT THIS CAN BE SHOWN,
AND WE CANNOT GIVE OUR ASSENT TO THE PRINCIPLE THAT, BY THE MERE ACT OF
ASSERTING A PERSON TO BE GUILTY OF A CONTEMPT, THEY THEREBY ESTABLISH
THEIR RIGHT TO FINE AND IMPRISON HIM, BEYOND THE POWER OF ANY COURT OR
ANY OTHER TRIBUNAL WHATEVER TO INQUIRE INTO THE GROUNDS ON WHICH THE
ORDER WAS MADE.  THIS NECESSARILY GROWS OUT OF THE NATURE OF AN
AUTHORITY WHICH CAN ONLY EXIST IN A LIMITED CLASS OF CASES, OR UNDER
SPECIAL CIRCUMSTANCES; OTHERWISE THE LIMITATION IS UNAVAILING AND THE
POWER OMNIPOTENT." 

FN6  THIS PRINCIPLE IS NOT A NEW OR NOVEL ONE.  AGAIN IN KILBOURN,
THE COURT MADE THIS OBSERVATION (103 U.S., AT 190-191): 

"IT IS BELIEVED TO BE ONE OF THE CHIEF MERITS OF THE AMERICAN SYSTEM
OF WRITTEN CONSTITUTIONAL LAW, THAT ALL THE POWERS INTRUSTED TO
GOVERNMENT, WHETHER STATE OR NATIONAL, ARE DIVIDED INTO THE THREE GRAND
DEPARTMENTS, THE EXECUTIVE, THE LEGISLATIVE, AND THE JUDICIAL.  THAT
THE FUNCTIONS APPROPRIATE TO EACH OF THESE BRANCHES OF GOVERNMENT SHALL
BE VESTED IN A SEPARATE BODY OF PUBLIC SERVANTS, AND THAT THE
PERFECTION OF THE SYSTEM REQUIRES THAT THE LINES WHICH SEPARATE AND
DIVIDE THESE DEPARTMENTS SHALL BE BROADLY AND CLEARLY DEFINED.  IT IS
ALSO ESSENTIAL TO THE SUCCESSFUL WORKING OF THIS SYSTEM THAT THE
PERSONS INTRUSTED WITH POWER IN ANY ONE OF THESE BRANCHES SHALL NOT BE
PERMITTED TO ENCROACH UPON THE POWERS CONFIDED TO THE OTHERS, BUT THAT
EACH SHALL BY THE LAW OF ITS CREATION BE LIMITED TO THE EXERCISE OF THE
POWERS APPROPRIATE TO ITS OWN DEPARTMENT AND NO OTHER." 

FN7  "THE TENDENCY OF MODERN DECISIONS EVERYWHERE IS TO THE DOCTRINE
THAT THE JURISDICTION OF A COURT OR OTHER TRIBUNAL TO RENDER A JUDGMENT
AFFECTING INDIVIDUAL RIGHTS, IS ALWAYS OPEN TO INQUIRY, WHEN THE
JUDGMENT IS RELIED ON IN ANY OTHER PROCEEDING."  KILBOURN V. THOMPSON,
SUPRA, AT 197-198. 

FN8  I AM CERTAIN THAT IT WILL COME AS A GREAT SURPRISE TO MANY TO
LEARN THAT KILBOURN HAS BEEN "SEVERELY DISCREDITED," AS STATED IN MR.
JUSTICE HARLAN'S OPINION (P. 614, NOTE 16, ANTE), AND THAT IT NO LONGER
STANDS TO PREVENT THE CONGRESSIONAL BODY OF OUR GOVERNMENT FROM
ENCROACHING UPON THE EXERCISE OF JUDICIAL POWER.  THE REFERENCE TO
UNITED STATES V. RUMELY, 345 U.S. 41, 46, WHERE MR. JUSTICE FRANKFURTER
INDICATED IN A DICTUM DESIGNED TO RESERVE DECISION UPON A SUGGESTED
LIMIT OF CONGRESS' INVESTIGATIVE POWER, THAT KILBOURN CONTAINED "LOOSE
LANGUAGE," IS HARDLY THE METHOD THIS COURT HAS CHOSEN TO OVERRULE OR
"DISCREDIT" DECISIONS IN THE PAST.  INDEED, NEITHER HAVE WE CHOSEN TO
DO SO IN FOOTNOTES.  MOREOVER, MR. JUSTICE FRANKFURTER'S RELIANCE IN
RUMELY ON MCGRAIN V. DAUGHERTY, 273 U.S. 135, 170-171, AND SINCLAIR V.
UNITED STATES, 279 U. S. 263, TO SUPPORT HIS STATEMENT THAT
"SUBSTANTIAL INROADS" HAVE BEEN MADE ON KILBOURN IS RATHER CONFUSING IN
LIGHT OF OUR RECENT PRONOUNCEMENT IN WATKINS V. UNITED STATES, 354 U.S.
178, 194, THAT:  "IN MCGRAIN  ...  AND SINCLAIR  ...  , THE COURT
APPLIED THE PRECEPTS OF KILBOURN TO UPHOLD THE AUTHORITY OF THE
CONGRESS TO CONDUCT THE CHALLENGED INVESTIGATIONS." 

KILBOURN HAS ALSO BEEN CITED FAVORABLY OR WITHOUT A QUESTION OF ITS
CONTINUED VALIDITY IN OTHER RECENT DECISIONS OF THE COURT:  E.G.,
BARENBLATT V. UNITED STATES, 360 U.S. 109, 133 (OPINION BY HARLAN, J.);
TENNEY V. BRANDHOVE, 341 U.S. 367, 377 (OPINION BY FRANKFURTER, J.:
"THIS COURT HAS NOT HESITATED TO SUSTAIN THE RIGHTS OF PRIVATE
INDIVIDUALS WHEN IT FOUND CONGRESS WAS ACTING OUTSIDE ITS LEGISLATIVE
ROLE.  KILBOURN V. THOMPSON, 103 U.S. 168."); UPHAUS V. WYMAN, 360 U.S.
72, 84 (DISSENTING OPINION). 

FN9 CONTRARY TO THE IMPLICATION DRAWN IN MR. JUSTICE HARLAN'S OPINION
THAT THE PRINCIPLE TO WHICH I WOULD ADHERE IN THE INSTANT CASE WOULD
ALSO APPLY "TO INQUIRIES CALLING FOR ANSWERS THAT MIGHT BE USED TO THE
PREJUDICE OF THE WITNESS IN ANY FUTURE JUDICIAL PROCEEDING" (P. 613,
NOTE 16, ANTE), IT SEEMS OBVIOUS THAT NOTHING IN THIS OPINION GIVES
SUPPORT TO SUCH AN INFERENCE.  IN FACT, I BELIEVE A CAREFUL READING OF
IT WOULD MAKE CLEAR THAT IT IS SPECIFICALLY BECAUSE OF THE PENDING
NATURE OF THE STATE INDICTMENT THAT DUE PROCESS HAS BEEN VIOLATED BY
THIS INQUIRY. 

FN10  THE STATE'S DELAY SUBSEQUENT TO THE COMMITTEE'S INVESTIGATION
IN BRINGING THE PETITIONER TO TRIAL SEEMS HARDLY RELEVANT TO OUR
INQUIRY.  THE SPEED WITH WHICH THE STATE'S JUDICIAL PROCESS MOVES
CANNOT JUSTIFY AN OTHERWISE UNCONSTITUTIONAL EXERCISE OF FEDERAL
LEGISLATIVE POWER. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH THE COURT THAT THE QUESTIONS ASKED PETITIONER BY THE
COMMITTEE WERE WITHIN ITS COMPETENCE AND WERE PERTINENT TO THE
LEGISLATIVE INQUIRY.  I DO NOT THINK, HOWEVER, THAT UNDER THE
CIRCUMSTANCES DISCLOSED, THE FEDERAL COURTS SHOULD LEND A HAND IN
FINING HIM OR IN SENDING HIM OFF TO PRISON. 

FOUR MONTHS BEFORE THESE HEARINGS, PETITIONER HAD BEEN INDICTED IN AN
INDIANA COURT FOR FELONIES THAT INVOLVED DIRECTLY OR INDIRECTLY THE
MATTERS CONCERNING WHICH THE COMMITTEE QUESTIONED HIM.  IF HE HAD
REFUSED TO ANSWER BECAUSE OF THE SELF-INCRIMINATION CLAUSE OF THE FIFTH
AMENDMENT, HIS PLEA WOULD HAVE BEEN ADMISSIBLE IN THE INDIANA
PROSECUTION.  STATE V. SCHOPMEYER, 207 IND. 538, 542-543, 194 N.E. 144,
146.  AND BY OUR DECISIONS (SEE ADAMSON V. CALIFORNIA, 332 U.S. 46)
SUCH A USE WOULD NOT BE BARRED.  SO, UNDER ADVICE OF COUNSEL,
PETITIONER DID NOT REFUSE TO ANSWER ON THE GROUND OF SELF
INCRIMINATION.  RATHER, HE REFUSED TO ANSWER ON THE GROUND THAT THE
QUESTIONS MIGHT "AID THE PROSECUTION IN THE CASE IN WHICH I AM UNDER
INDICTMENT AND THUS BE IN DENIAL OF DUE PROCESS OF LAW." 

THE POWER TO HOLD IN CONTEMPT A WITNESS WHO REFUSES TO TESTIFY BEFORE
A CONGRESSIONAL COMMITTEE HAS A DUAL ASPECT.  FIRST IS THE POWER OF
EITHER THE HOUSE OR THE SENATE TO SUMMON HIM AND ORDER HIM HELD IN
CUSTODY UNTIL HE AGREES TO TESTIFY.  THIS POWER, THOUGH NOT USED IN
RECENT YEARS (WATKINS V. UNITED STATES, 354 U.S. 178, 206), IS OF AN
ANCIENT VINTAGE.  (FN1)  BUT THE POWER OF EITHER HOUSE TO IMPRISON THE
WITNESS EXPIRES AT THE END OF THE SESSION.  AS STATED IN ANDERSON V.
DUNN, 6 WHEAT, 204, 231, "  ...  ALTHOUGH THE LEGISLATIVE POWER
CONTINUES PERPETUAL, THE LEGISLATIVE BODY CEASES TO EXIST ON THE MOMENT
OF ITS ADJOURNMENT OR PERIODICAL DISSOLUTION.  IT FOLLOWS, THAT
IMPRISONMENT MUST TERMINATE WITH THAT ADJOURNMENT."    SECOND IS THE
POWER OF THE COURTS TO PUNISH WITNESSES WHO ARE RECALCITRANT OR DEFIANT
BEFORE A CONGRESSIONAL COMMITTEE OR WHO, WHEN SUMMONED, DEFAULT.  2
U.S.C. SEC. 192.  THIS LAW, ENACTED IN 1857, WAS PASSED SO THAT "A
GREATER PUNISHMENT" THAN THE CONGRESS THOUGHT IT HAD THE POWER TI
IMPOSE COULD BE INFLICTED.  WATKINS V. UNITED STATES, SUPRA, 207, N.
45. 

WE DEAL HERE WITH THE SECOND OF THESE POWERS. 

THE FEDERAL COURTS DO NOT SIT AS PUSH-BUTTON MECHANISMS TO FINE OR
IMPRISON THOSE WHOM CONGRESS REFERS TO THE UNITED STATES ATTORNEY FOR
PROSECUTION.    THERE IS, FOR EXAMPLE, THE CASE WHERE NO QUORUM OF THE
CONGRESSIONAL COMMITTEE IS PRESENT WHEN THE WITNESS IS CHARGED WITH
CONTEMPT.  AS SAID IN CHRISTOFFEL V. UNITED STATES, 338 U.S. 84, 90,
"THIS NOT ONLY SEEMS TO US CONTRARY TO THE RULES AND PRACTICE OF THE
CONGRESS BUT DENIES PETITIONER A FUNDAMENTAL RIGHT.  THAT RIGHT IS THAT
HE BE CONVICTED OF CRIME ONLY ON PROOF OF ALL THE ELEMENTS OF THE CRIME
CHARGED AGAINST HIM.  A TRIBUNAL THAT IS NOT COMPETENT IS NO TRIBUNAL,
AND IT IS UNTHINKABLE THAT SUCH A BODY CAN BE THE INSTRUMENT OF
CRIMINAL CONVICTION." 

WE HELD IN SLAGLE V. OHIO, 366 U.S. 259, 265-266, THAT THOUGH A
LEGISLATIVE COMMITTEE ACTS WITHIN BOUNDS, YET THE FORM OF QUESTIONS
ASKED AND RULINGS ON OBJECTIONS TO THEM MAY BE SO OBTUSE AS TO MAKE IT
VIOLATIVE OF DUE PROCESS FOR COURTS TO PUNISH A REFUSAL TO ANSWER. 
(FN2)  CF. QUINN V. UNITED STATES, 349 U.S. 155, 167-168. 

A COURT WILL NOT LEND ITS HAND TO INFLICT PUNISHMENT ON A PERSON FOR
CONTEMPT OF A CONGRESSIONAL COMMITTEE WHERE THE PROCEEDING WAS
FUNDAMENTALLY UNFAIR.  (FN3)  THE PROCEEDING WAS HELD UNFAIR IN WATKINS
V. UNITED STATES, SUPRA, BECAUSE IT WAS FAR FROM CLEAR THAT THE
QUESTIONS ASKED BY THE COMMITTEE WERE "PERTINENT" TO THE QUESTION UNDER
INQUIRY.  ID., 204-214.  "FUNDAMENTAL FAIRNESS," WE SAID, DEMANDS THAT
THE WITNESS BE INFORMED "WHAT THE TOPIC UNDER INQUIRY IS AND THE
CONNECTIVE REASONING WHEREBY THE PRECISE QUESTIONS ASKED RELATE TO
IT."  ID., AT 215.  VAGUENESS IN INVESTIGATORY INQUIRIES, LIKE
VAGUENESS IN CRIMINAL STATUTES, MAY NOT GIVE A WITNESS THE NOTICE THAT
IS NECESSARY UNDER OUR STANDARDS OF DUE PROCESS.  ID., AT 208. 

THERE IS, I SUBMIT, A FUNDAMENTAL UNFAIRNESS WHEN WE MAKE IT
IMPOSSIBLE FOR A WITNESS TO INVOKE A PRIVILEGE WHICH THE CONSTITUTION
GRANTS HIM, AND THEN SEND HIM OFF TO JAIL WHEN THE PRIVILEGE WE
WITHHOLD WOULD HAVE PROTECTED HIM.  THE GUARANTEE AGAINST SELF
INCRIMINATION WOULD HAVE GIVEN PETITIONER FULL AND COMPLETE IMMUNITY
BUT FOR OUR DECISIONS IN CASES LIKE ADAMSON V. CALIFORNIA, SUPRA, AND
COHEN V. HURLEY, 366 U.S. 117.  THOSE DECISIONS, HOWEVER, MAKE HIS PLEA
OF SELF-INCRIMINATION ADMISSIBLE IN THE PENDING PROSECUTION IN THE
INDIANA COURT.  WHEN WE SAY THAT THE SELF-INCRIMINATION CLAUSE OF THE
FIFTH AMENDMENT IS NOT APPLICABLE TO THE STATES BY REASON OF THE
FOURTEENTH AMENDMENT, WE TURN A FEDERAL PROCEEDING INTO A PRETRIAL OF
THE STATE PROSECUTION, SHOULD THE WITNESS INVOKE HIS CONSTITUTIONAL
RIGHT.  SINCE HE DARE NOT INVOKE IT FOR FEAR OF GOING TO A STATE
PRISON, HE ENDS UP IN A FEDERAL PRISON.  THE RESULT IS TO TURN THE
GUARANTEE AGAINST SELF-INCRIMINATION INTO A SHAM.  A WITNESS IS
WHIPSAWED BETWEEN STATE AND FEDERAL AGENCIES, HAVING NO WAY TO ESCAPE
THE FEDERAL PRISON UNLESS HE CONFESSES HIMSELF INTO A STATE PRISON. 

WE HAVE AT TIMES SAID THAT THIS HOBSON'S CHOICE GRANTED A WITNESS IS
A PRODUCT OF FEDERALISM.  FELDMAN V. UNITED STATES, 322 U.S. 487, 493,
WAS, INDEED, A CASE WHERE THE TESTIMONY OF A MAN COMPELLED TO TESTIFY
IN A STATE PROCEEDING SENT HIM TO A FEDERAL PRISON.  BUT THE RESULT OF
THIS LINE OF CASES IS A NEEDLESS CONSEQUENCE OF FEDERALISM, AND ONE
THAT MAKES THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION A
"PHRASE WITHOUT REALITY."  COHEN V. HURLEY, SUPRA, AT 132 (DISSENTING
OPINION).  WHY DUE PROCESS FOR THE STATES SHOULD BE DIFFERENT IN THIS
RESPECT FROM DUE PROCESS FOR THE FEDERAL GOVERNMENT IS A MYSTERY.  WE
SHOULD OVERRULE ADAMSON V. CALIFORNIA, SUPRA, AND HOLD THAT NO
ADMISSION MADE BY A WITNESS IN A FEDERAL PROCEEDING NOR ANY REFUSAL TO
TESTIFY CAN BE USED AGAINST HIM IN A STATE PROSECUTION.  UNTIL WE TAKE
THAT COURSE, WE CANNOT IN GOOD CONSCIENCE SEND A MAN TO A FEDERAL
PRISON WHO GOES THERE SOLELY BECAUSE WE DEPRIVED HIM OF A BASIC
CONSTITUTIONAL GUARANTEE. 

WHAT WE DO TODAY IS CONSISTENT WITH OUR PRIOR DECISIONS IN HALE V.
HENKEL, 201 U.S. 43; UNITED STATES V. MURDOCK, 284 U.S. 141.  YET THE
RESULT IS UNFAIR.  THIS CASE, LIKE ITS FOREBEARS, SHOWS WHY WE SHOULD
RID THE BOOKS OF ADAMSON V. CALIFORNIA, SUPRA, AND HOLD THAT THE
PRIVILEGE AGAINST-SELF-INCRIMINATION CONTAINED IN THE FIFTH AMENDMENT
IS APPLICABLE TO THE STATES AND TO THE FEDERAL GOVERNMENT ALIKE. 

THERE HAS NEVER, IN MY VIEW, BEEN A SATISFACTORY ANSWER TO THE
POSITION OF THE FIRST JUSTICE HARLAN THAT DUE PROCESS IN THE FOURTEENTH
AMENDMENT DOES NOT MEAN SOMETHING DIFFERENT FROM DUE PROCESS IN THE
FIFTH AMENDMENT.  SEE HURTADO V. CALIFORNIA, 110 U.S. 516, 541 ET SEQ. 

FN1  AS STATED IN STOCKDALE V. HANSARD, (1839) 9 A.&E. 1, 114: 

"THE PRIVILEGE OF COMMITTING FOR CONTEMPT IS INHERENT IN EVERY
DELIBERATIVE BODY INVESTED WITH AUTHORITY BY THE CONSTITUTION.  BUT,
HOWEVER FLAGRANT THE CONTEMPT, THE HOUSE OF COMMONS CAN ONLY COMMIT
TILL THE THE CLOSE OF THE EXISTING SESSION.  THEIR PRIVILEGE TO COMMIT
IS NOT BETTER KNOWN THAN THIS LIMITATION OF IT.  THOUGH THE PARTY
SHOULD DESERVE THE SEVEREST PENALTIES, YET, HIS OFFENCE BEING COMMITTED
THE DAY BEFORE A PROROGATION, IF THE HOUSE ORDERED HIS IMPRISONMENT BUT
FOR A WEEK, EVERY COURT IN WESTMINSTER HALL AND EVERY JUDGE OF ALL THE
COURTS WOULD BE BOUND TO DISCHARGE HIM BY HABEAS CORPUS." 

FN2  SINCLAIR V. UNITED STATES, 279 U.S. 263, IS NOT OPPOSED TO THIS
VIEW.  FOR THERE THE PENDING SUIT WAS CIVIL, NOT CRIMINAL, AND THE
DEFENSE WAS THAT THE CONGRESSIONAL COMMITTEE HAD EXHAUSTED ITS POWER TO
INVESTIGATE, ID., 290, NOT THAT IT WOULD VIOLATE DUE PROCESS FOR THE
FEDERAL COURTS TO BECOME IMPLICATED IN A CRIMINAL PROSECUTION. 

FN3  MR. JUSTICE FRANKFURTER EXPRESSED THE IDEA IN HIS SEPARATE
OPINION IN WATKINS V. UNITED STATES, SUPRA: 

"BY  ...  MAKING THE FEDERAL JUDICIARY THE AFFIRMATIVE AGENCY FOR
ENFORCING THE AUTHORITY THAT UNDERLIES THE CONGRESSIONAL POWER TO
PUNISH FOR CONTEMPT, CONGRESS NECESSARILY BRINGS INTO PLAY THE SPECIFIC
PROVISIONS OF THE CONSTITUTION RELATING TO THE PROSECUTION OF OFFENSES
AND THOSE IMPLIED RESTRICTIONS UNDER WHICH COURTS FUNCTION."  ID., AT
216. 
..END :

















MALONE V. BOWDOIN 369 U.S. 643 


NO. 113.  ARGUED MARCH 20, 1962 - DECIDED MAY 14, 1962 - 284 F.2D 95,
REVERSED. 


BY THIS COMMON LAW ACTION OF EJECTMENT, BROUGHT IN A STATE COURT AND
REMOVED TO A FEDERAL DISTRICT COURT, RESPONDENTS SOUGHT TO EJECT
PETITIONER, A FOREST SERVICE OFFICER OF THE UNITED STATES DEPARTMENT OF
AGRICULTURE, FROM LAND OCCUPIED BY HIM SOLELY IN HIS OFFICIAL CAPACITY
UNDER A CLAIM OF TITLE IN THE UNITED STATES.  THERE WAS NO ALLEGATION
THAT PETITIONER WAS ACTING BEYOND HIS AUTHORITY OR THAT HIS OCCUPATION
OF THE LAND AMOUNTED TO AN UNCONSTITUTIONAL TAKING.  HELD:  THE ACTION
WAS ONE AGAINST THE UNITED STATES AND, IN THE ABSENCE OF CONSENT BY THE
UNITED STATES, THE DISTRICT COURT WAS WITHOUT JURISDICTION.  LARSON V.
DOMESTIC & FOREIGN COMMERCE CORP., 337 U.S. 682.   PP. 643-648. 

MALONE V. BOWDOIN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION BEGAIN IN A GEORGIA COURT WHEN THE RESPONDENTS FILED
A COMMON LAW ACTION OF EJECTMENT AGAINST THE PETITIONER, A FOREST
SERVICE OFFICER OF THE UNITED STATES DEPARTMENT OF AGRICULTURE.  (FN1)
THE BASIS FOR THE SUIT WAS THE RESPONDENTS' CLAIM THAT THEY WERE THE
RIGHTFUL OWNERS OF CERTAIN LAND OCCUPIED BY THE PETITIONER.  (FN2)  THE
ACTION WAS REMOVED TO A FEDERAL DISTRICT COURT UNDER THE PROVISIONS OF
28 U.S.C.  SEC. 1442(A).  (FN3)  THE REMOVAL PETITION STATED THAT THE
ACTION "INVOLVES LANDS THAT WERE ACQUIRED BY THE UNITED STATES OF
AMERICA BY DEED ON JUNE 6, 1936," THAT THE PETITIONER'S "OFFICIAL
DUTIES AS A FOREST SERVICE OFFICER REQUIRED HIM TO BE, AND HE WAS, IN
CHARGE AND IN POSSESSION OF THE LAND DESCRIBED IN SAID EJECTMENT SUIT,"
AND THAT "ALL HIS ACTS IN CONNECTION WITH THE MATTERS CHARGED IN SAID
COMPLAINT WERE COMMITTED BY HIM UNDER COLOR OF HIS SAID OFFICE." 

THE PETITIONER FILED A MOTION TO DISMISS UPON THE GROUND THAT THE
SUIT WAS IN SUBSTANCE AND EFFECT ONE AGAINST THE UNITED STATES, WHICH
HAD NOT CONSENTED TO BE SUED OR WAIVED ITS IMMUNITY FROM SUIT.  NOTING
THAT THE RESPONDENTS HAD CONCEDED IN A PRETRIAL CONFERENCE THAT THE
PETITIONER IN OCCUPYING THE LAND WAS ACTING SOLELY AS AN OFFICIAL OR
EMPLOYEE OF THE UNITED STATES, THE DISTRICT COURT GRANTED THE MOTION TO
DISMISS, RELYING UPON LARSON V. DOMESTIC & FOREIGN CORP., 337 U.S.
682.  (FN4)  ON APPEAL, THE JUDGMENT WAS REVERSED, ONE JUDGE
DISSENTING, 284 F.2D 95.  (FN5)  WE GRANTED CERTIORARI TO CONSIDER THE
SCOPE OF SOVEREIGN IMMUNITY IN SUITS OF THIS KIND.  368 U.S. 811.  WE
AGREE WITH THE DISTRICT COURT THAT THE DOCTRINE OF THE LARSON CASE
REQUIRED DISMISSAL OF THIS ACTION, AND WE THEREFORE REVERSE THE
JUDGMENT OF THE COURT OF APPEALS. 

FOR ITS VIEW THAT THE SOVEREIGN IMMUNITY OF THE UNITED STATES DID NOT
BAR THE MAINTENANCE OF THIS SUIT, THE COURT OF APPEALS FOUND PRINCIPAL
SUPPORT IN UNITED STATES V. LEE, 106 U.S. 196.  IN THAT CASE THE
VIRGINIA ESTATE OF GENERAL ROBERT E. LEE HAD BEEN ACQUIRED BY THE
UNITED STATES FOR NONPAYMENT OF TAXES, ALTHOUGH THE TAXES HAD IN FACT
BEEN TENDERED BY A THIRD PARTY.  AN EJECTMENT ACTION WAS BROUGHT
AGAINST THE GOVERNMENTAL CUSTODIANS OF THE LAND, UPON WHICH A FEDERAL
MILITARY INSTALLATION AND A CEMETERY HAD BEEN ESTABLISHED.  THE TRIAL
COURT FOUND THAT THE TAX SALE HAD BEEN INVALID, AND THAT TITLE TO THE
LAND WAS IN THE PLAINTIFF.  THIS COURT UPHELD A JUDGMENT IN FAVOR OF
THE PLAINTIFF UPON THE TRIAL COURT'S FINDING THAT THE DEFENDANTS'
POSSESSION OF THE LAND WAS ILLEGAL, HOLDING THAT A SUIT AGAINST THEM
UNDER SUCH CIRCUMSTANCES WAS NOT A SUIT AGAINST THE SOVEREIGN. 

IN A NUMBER OF LATER CASES, ARISING OVER THE YEARS IN A VARIETY OF
FACTUAL SITUATIONS, THE PRINCIPLES OF THE LEE CASE WERE APPROVED. 
(FN6)  BUT IN SEVERAL OTHER CASES WHICH CAME TO THE COURT DURING THE
SAME PERIOD, IT WAS HELD THAT SUITS AGAINST GOVERNMENT AGENTS,
SPECIFICALLY AFFECTING PROPERTY IN WHICH THE UNITED STATES CLAIMED AN
INTEREST, WERE BARRED BY THE DOCTRINE OF SOVEREIGN IMMUNITY.  (FN7)
WHILE IT IS POSSIBLE TO DIFFERENTIATE MANY OF THESE CASES UPON THEIR
INDIVIDUALIZED FACTS, IT IS FAIR TO SAY THAT TO RECONCILE COMPLETELY
ALL THE DECISIONS OF THE COURT IN THIS FIELD PRIOR TO 1949 WOULD BE A
PROCRUSTEAN TASK. 

THE COURT'S 1949 LARSON DECISION MAKES IT UNNECESSARY, HOWEVER, TO
UNDERTAKE THAT TASK HERE.  FOR IN LARSON THE COURT, AWARE THAT IT WAS
CALLED UPON TO "RESOLVE THE CONFLICT IN DOCTRINE" (337 U.S., AT 701),
THOROUGHLY REVIEWED THE MANY PRIOR DECISIONS, AND MADE AN INFORMED AND
CAREFULLY CONSIDERED CHOICE BETWEEN THE SEEMINGLY CONFLICTING
PRECEDENTS. 

IN THAT CASE A SUIT HAD BEEN BROUGHT AGAINST THE WAR ASSETS
ADMINISTRATOR TO ENJOIN HIM FROM SELLING SURPLUS COAL WHICH, IT WAS
ALLEGED, THE ADMINISTRATOR HAD ALREADY SOLD TO THE PLAINTIFF.  THE
THEORY OF THE ACTION WAS THAT WHERE "AN OFFICER OF THE GOVERNMENT
WRONGLY TAKES OR HOLDS SPECIFIC PROPERTY TO WHICH THE PLAINTIFF HAS
TITLE, THEN HIS TAKING OR HOLDING IS A TORT - AND 'ILLEGAL' AS A MATTER
OF GENERAL LAW, WHETHER OR NOT IT BE WITHIN HIS DELEGATED POWERS," AND
THAT THE OFFICER "MAY THEREFORE BE SUED INDIVIDUALLY TO PREVENT THE
'ILLEGAL' TAKING OR TO RECOVER THE PROPERTY 'ILLEGALLY' HELD."  337
U.S., AT 692.  THE COURT HELD THAT THIS THEORY WAS NOT ADEQUATE TO
SUPPORT A CONCLUSION THAT THE RELIEF ASKED WAS NOT RELIEF AGAINST THE
SOVEREIGN. 

CUTTING THROUGH THE TANGLE OF PREVIOUS DECISIONS, THE COURT EXPRESSLY
POSTULATED THE RULE THAT THE ACTION OF A FEDERAL OFFICER AFFECTING
PROPERTY CLAIMED BY A PLAINTIFF CAN BE MADE THE BASIS OF A SUIT FOR
SPECIFIC RELIEF AGAINST THE OFFICER AS AN INDIVIDUAL ONLY IF THE
OFFICER'S ACTION IS "NOT WITHIN THE OFFICER'S STATUTORY POWERS OR, IF
WITHIN THOSE POWERS, ONLY IF THE POWERS, OR THEIR EXERCISE IN THE
PARTICULAR CASE, ARE CONSTITUTIONALLY VOID."  337 U.S., AT 702.  SINCE
THE PLAINTIFF HAD NOT MADE AN AFFIRMATIVE ALLEGATION OF ANY RELEVANT
STATUTORY LIMITATION UPON THE ADMINISTRATOR'S POWERS, AND HAD MADE NO
CLAIM THAT THE ADMINISTRATOR'S ACTION AMOUNTED TO AN UNCONSTITUTIONAL
TAKING, THE COURT RULED THAT THE SUIT MUST FAIL AS AN EFFORT TO ENJOIN
THE UNITED STATES. 

WHILE NOT EXPRESSLY OVERRULING UNITED STATES V. LEE, SUPRA, THE COURT
IN LARSON LIMITED THAT DECISION IN SUCH A WAY AS TO MAKE IT
INAPPLICABLE TO THE CASE BEFORE US.  POINTING OUT THAT AT THE TIME OF
THE LEE DECISION THERE WAS NO REMEDY BY WHICH THE PLAINTIFF COULD HAVE
RECOVERED COMPENSATION FOR THE TAKING OF HIS LAND, (FN8) THE COURT
INTERPRETED LEE AS SIMPLY "A SPECIFIC APPLICATION OF THE CONSTITUTIONAL
EXCEPTION TO THE DOCTRINE OF SOVEREIGN IMMUNITY."  337 U.S., AT 696. 
SO CONSTRUED, THE LEE CASE HAS CONTINUING VALIDITY ONLY "WHERE THERE IS
A CLAIM THAT THE HOLDING CONSTITUTES AN UNCONSTITUTIONAL TAKING OF
PROPERTY WITHOUT JUST COMPENSATION."  ID., AT 697. 

NO SUCH CLAIM HAS BEEN ADVANCED IN THE PRESENT CASE.  NOR HAS IT BEEN
ASSERTED THAT THE PETITIONER WAS EXCEEDING HIS DELEGATED POWERS AS AN
OFFICER OF THE UNITED STATES IN OCCUPYING THE LAND IN QUESTION, (FN9)
OR THAT HE WAS IN POSSESSION OF THE LAND IN ANYTHING OTHER THAN HIS
OFFICIAL CAPACITY.  THIS SUIT, THEREFORE, IS NOT WITHIN THE CLASS OF
CASES IN WHICH, UNDER LARSON, SPECIFIC RELIEF CAN BE OBTAINED AGAINST A
GOVERNMENT OFFICER.  ACCORDINGLY, IT WAS RIGHTLY DISMISSED BY THE
DISTRICT COURT AS AN ACTION WHICH IN SUBSTANCE AND EFFECT WAS ONE
AGAINST THE UNITED STATES WITHOUT ITS CONSENT.  REVERSED. 

FN1  THE ORIGINAL PLEADING WAS IN THE FICTITIOUS COMMON LAW FORM IN
USE IN GEORGIA, GA. CODE ANN. SEC. 33-111, ALLEGING THAT JOHN DOE, AS A
LESSEE OF THE RESPONDENTS, HAD ENTERED THE LAND IN QUESTION AND HAD
BEEN FORCEABLY EJECTED BY RICHARD ROE.  THE PETITIONER AND THE UNITED
STATES WERE SERVED WITH PROCESS, WHICH WAS ACCOMPANIED BY A "NOTICE TO
THE REAL DEFENDANTS," STATING THAT RICHARD ROE HAD "ACTED AS CASUAL
EJECTOR ONLY."  THE SUBSEQUENT DISMISSAL OF THE UNITED STATES AS A
PETITIONER IS NOT CHALLENGED HERE. 

FN2  THIS ASSERTION DID NOT APPEAR ON THE FACE OF THE ORIGINAL
PLEADINGS BECAUSE OF THEIR FICTITIOUS FORM.  IN A SUBSEQUENT BRIEF,
HOWEVER, THE RESPONDENTS EXPLAINED THE BASIS OF THEIR CLAIM.  THEY
ALLEGED THAT AN 1857 WILL HAD DEVISED A LIFE ESTATE IN THE LAND TO
MARTHA A. SANDERS, WITH REMAINDER OVER TO HER CHILDREN, AND THAT IN
1873 MRS. SANDERS HAD DEVISED THE LAND IN FEE TO MESNE GRANTORS OF THE
UNITED STATES, WHICH HAD ACQUIRED TITLE IN 1936.  MRS. SANDERS DIED IN
1928, AND THE RESPONDENTS CLAIMED TO BE THE REMAINDERMEN UNDER THE 1857
WILL. 

FN3  28 U.S.C. SEC. 1442(A) PROVIDES: 

"A CIVIL ACTION OR CRIMINAL PROSECUTION COMMENCED IN A STATE COURT
AGAINST ANY OF THE FOLLOWING PERSONS MAY BE REMOVED BY THEM TO THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT AND DIVISION
EMBRACING THE PLACE WHEREIN IT IS PENDING: 

"(1)  ANY OFFICER OF THE UNITED STATES OR ANY AGENCY THEREOF, OR
PERSON ACTING UNDER HIM, FOR ANY ACT UNDER COLOR OF SUCH OFFICE OR ON
ACCOUNT OF ANY RIGHT, TITLE OR AUTHORITY CLAIMED UNDER ANY ACT OF
CONGRESS FOR THE APPREHENSION OR PUNISHMENT OF CRIMINALS OR THE
COLLECTION OF THE REVENUE. 

"(2)  A PROPERTY HOLDER WHOSE TITLE IS DERIVED FROM ANY SUCH OFFICER,
WHERE SUCH ACTION OR PROSECUTION AFFECTS THE VALIDITY OF ANY LAW OF THE
UNITED STATES. 

"(3)  ANY OFFICER OF THE COURTS OF THE UNITED STATES, FOR ANY ACT
UNDER COLOR OF OFFICE OR IN THE PERFORMANCE OF HIS DUTIES: 

"(4)  ANY OFFICER OF EITHER HOUSE OF CONGRESS, FOR ANY ACT IN THE
DISCHARGE OF HIS OFFICIAL DUTY UNDER AN ORDER OF SUCH HOUSE." 

FN4  THE DISTRICT COURT'S OPINION IS REPORTED SUB NOM. DOE V. ROE,
186 F. SUPP. 407. 

FN5  A PETITION FOR REHEARING WAS DENIED, 287 F.2D 282. 

FN6  SEE CUNNINGHAM V. MACON & BRUNSWICK R. CO., 109 U.S. 446, 452;
TINDAL V. WESLEY, 167 U.S. 204; SCRANTON V. WHEELER, 179 U.S. 141, 152
153; PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 619-620; GOLTRA V.
WEEKS, 271 U.S. 536, 545; ICKES V. FOX, 300 U.S. 82, 96; GREAT NORTHERN
LIFE INS. CO. V. READ, 322 U.S. 47, 50-51; LAND V. DOLLAR, 330 U.S.
731. 

FN7  SEE STANLEY V. SCHWALBY, 162 U.S. 255; OREGON V. HITCHCOCK, 202
U.S. 60; NAGANAB V. HITCHCOCK, 202 U.S. 473; LOUISIANA V. GARFIELD, 211
U.S. 70; GOLDBERG V. DANIELS, 231 U.S. 218; NEW MEXICO V. LANE, 243
U.S. 52; MORRISON V. WORK, 266 U.S. 481; CF. MINE SAFETY CO. V.
FORRESTAL, 326 U.S. 371, 374-375; WELLS V. ROPER, 246 U.S. 335. 

FN8  SEE 337 U.S., AT 697, N. 17.  UNLIKE THE SITUATION IN THE LEE
CASE, THERE HAS BEEN AT ALL RELEVANT TIMES A TRIBUNAL WHERE THE
RESPONDENTS COULD SEEK JUST COMPENSATION FOR THE TAKING OF THEIR LAND
BY THE UNITED STATES.  THAT TRIBUNAL IS THE COURT OF CLAIMS.  UNITED
STATES V. CAUSBY, 328 U.S. 256, 267. 

FN9  IF SUCH A CLAIM IS TO BE MADE, "IT IS NECESSARY THAT THE
PLAINTIFF SET OUT IN HIS COMPLAINT THE STATUTORY LIMITATION ON WHICH HE
RELIES."  LARSON V. DOMESTIC & FOREIGN CORP., 337 U.S. 682, 690.  WHILE
THIS REQUIREMENT COULD PROBABLY NOT HAVE BEEN PRECISELY COMPLIED WITH
HERE BECAUSE OF THE FICTITIOUS FORM OF PLEADING INVOLVED, NO SUCH CLAIM
WAS EVER SUGGESTED AT ANY STAGE OF THE PROCEEDINGS. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

UNITED STATES V. LEE, 106 U.S. 196, SERVES A USEFUL FUNCTION AND
SHOULD BE FOLLOWED HERE.  THERE, AS HERE, THE CONTEST WAS OVER REAL
ESTATE WHICH AN OFFICER OF THE FEDERAL GOVERNMENT HELD AGAINST THE
CLAIM OF THE PLAINTIFF.  HERE, AS THERE, IF THE FEDERAL AGENT'S
POSSESSION OF THE LAND IS ILLEGAL, THE SUIT IS NOT AGAINST THE
SOVEREIGN.  MR. JUSTICE MILLER, SPEAKING FOR THE COURT, SAID: 

"THE INSTANCES IN WHICH THE LIFE AND LIBERTY OF THE CITIZEN HAVE BEEN
PROTECTED BY THE JUDICIAL WRIT OF HABEAS CORPUS ARE TOO FAMILIAR TO
NEED CITATION, AND MANY OF THESE CASES, INDEED ALMOST ALL OF THEM, ARE
THOSE IN WHICH LIFE OR LIBERTY WAS INVADED BY PERSONS ASSUMING TO ACT
UNDER THE AUTHORITY OF THE GOVERNMENT  ...  . 

"IF THIS CONSTITUTIONAL PROVISION IS A SUFFICIENT AUTHORITY FOR THE
COURT TO INTERFERE TO RESCUE A PRISONER FROM THE HANDS OF THOSE HOLDING
HIM UNDER THE ASSERTED AUTHORITY OF THE GOVERNMENT, WHAT REASON IS
THERE THAT THE SAME COURTS SHALL NOT GIVE REMEDY TO THE CITIZEN WHOSE
PROPERTY HAS BEEN SEIZED WITHOUT DUE PROCESS OF LAW, AND DEVOTED TO
PUBLIC USE WITHOUT JUST COMPENSATION?"  ID., AT 218. 

UNITED STATES V. LEE WAS A FIVE-TO-FOUR DECISION.  BUT AS LATE AS
1947 SEVEN MEMBERS OF THE COURT AGREED TO THE STATEMENT IN LAND V.
DOLLAR, 330 U.S. 731, 737, THAT "WHERE THE RIGHT TO POSSESSION OR
ENJOYMENT OF PROPERTY UNDER GENERAL LAW IS IN ISSUE, AND THE DEFENDANTS
CLAIM AS OFFICERS OR AGENTS OF THE SOVEREIGN, THE RULE OF UNITED STATES
V. LEE, SUPRA, HAS BEEN REPEATEDLY APPROVED."  TWO YEARS LATER IN
LARSON V. DOMESTIC & FOREIGN CORP., 337 U.S. 682, THE CASE OF UNITED
STATES V. LEE WAS ATTEMPTED TO BE DISTINGUISHED IN THE MANNER INDICATED
BY THE COURT.  BUT THE LARSON DECISION WAS SIX TO THREE, MR. JUSTICE
RUTLEDGE CONCURRING IN THE RESULT AND MY VOTE BEING THE FIFTH.  BUT I
EXPLAINED MY CONCURRENCE ON THE FOLLOWING GROUNDS: 

"I THINK THAT THE PRINCIPLES ANNOUNCED BY THE COURT ARE THE ONES
WHICH SHOULD GOVERN THE SELLING OF GOVERNMENT PROPERTY.  LESS STRICT
APPLICATIONS OF THOSE PRINCIPLES WOULD CAUSE INTOLERABLE INTERFERENCE
WITH PUBLIC ADMINISTRATION.  TO MAKE THE RIGHT TO SUE THE OFFICER TURN
ON WHETHER BY THE LAW OF SALES TITLE HAD PASSED TO THE BUYER WOULD CLOG
THIS GOVERNMENTAL FUNCTION WITH INTOLERABLE BURDENS  ...  ."  ID., AT
705. 

THE HOLDING IN UNITED STATES V. LEE HAS THUS NOT BEEN REPUDIATED OR
NECESSARILY RESTRICTED BY ANYTHING DECIDED PRIOR TO TODAY. 

THE COURT IS QUITE CORRECT IN SAYING THAT ALL OF OUR DECISIONS IN
THIS FIELD CANNOT EASILY BE RECONCILED; AND THE SAME WILL DOUBTLESS BE
TRUE IF SAID BY THOSE WHO SIT HERE SEVERAL DECADES HENCE.   THE REASON
THE DECISIONS ARE NOT CONSISTENT IS THAT POLICY CONSIDERATIONS, NOT
ALWAYS APPARENT ON THE SURFACE, ARE POWERFUL AGENTS OF DECISION.  THUS
THE LARSON CASE WAS A SUIT FOR SPECIFIC PERFORMANCE OF A CONTRACT TO
SELL COAL, A MATTER THAT COURTS HAD LONG LEFT TO DAMAGE SUITS.  AS I
SAID IN MY SEPARATE CONCURRENCE IN THAT CASE, ANY OTHER RULE WOULD
"CLOG" GOVERNMENT PROCUREMENT "WITH INTOLERABLE BURDENS."  337 U.S., AT
705.    EJECTMENT, ON THE OTHER HAND, IS THE CLASSIC FORM OF ACTION TO
TRY TITLE.  IT TAKES PLACE IN THE LOCALITY WHERE THE LAND IS LOCATED. 
NO JUDGES ARE BETTER QUALIFIED TO TRY IT THAN THE LOCAL JUDGES.   IT IS
A CONVENIENT AND READY FORM OF REMEDY FOR POSSESSION OF LAND. 
MOREOVER, THE UNITED STATES, NOT BEING A PARTY, IS NOT BOUND BY THE
STATE COURT DECREE.  IF IT IS AGGRIEVED BY THE STATE OR FEDERAL COURT
RULING ON TITLE, IT CAN BRING ITS ARSENAL OF POWER INTO PLAY.  EMINENT
DOMAIN - WITH THE POWER IMMEDIATELY TO TAKE POSSESSION - IS AVAILABLE. 

IF, HOWEVER, THE CITIZEN MUST BOW TO THE DOCTRINE OF SOVEREIGN
IMMUNITY, HE IS PRECLUDED FROM ANY RELIEF EXCEPT A SUIT FOR DAMAGES
UNDER 28 U.S.C. SEC. 1346(B) OR 28 U.S.C. SEC. 1346(A)(2), OR 28 U.S.C.
SEC. 1491.  THIS PLACES THE ADVANTAGE WITH AN ALL-POWERFUL GOVERNMENT,
NOT WITH THE CITIZEN.  HE MAY, AS THE COURT SAYS, GO INTO COURT AND GET
THE VALUE OF HIS PROPERTY.  BUT HE DOES NOT GET HIS PROPERTY, EVEN
THOUGH WE ASSUME, AS WE MUST, THAT THE GOVERNMENT IS NOT THE RIGHTFUL
CLAIMANT. 

THE RESULT IS AT WAR WITH OUR PRIOR DECISIONS.  THOSE REMEDIES WITH
WHICH THE COURT LEAVES THE PROPERTY OWNER ARE NOT "SPECIAL REMEDIES"
PROVIDED TO "DISPLACE THOSE THAT OTHERWISE WOULD BE AT THE PLAINTIFF'S
COMMAND."  SEE SLOAN SHIPYARDS V. UNITED STATES FLEET CORP., 258 U.S.
549, 567.  AS STATED BY MR. JUSTICE FRANKFURTER: 

"WHEN THERE IS SUCH A SPECIAL REMEDY THE SUIT AGAINST THE OFFICER IS
BARRED, NOT BECAUSE HE ENJOYS THE IMMUNITY OF THE SOVEREIGN BUT BECAUSE
THE SOVEREIGN CAN CONSTITUTIONALLY CHANGE THE TRADITIONAL RULES OF
LIABILITY FOR THE TORT OF THE AGENT BY PROVIDING A FAIR SUBSTITUTE. 
CROZIER V. FRIED, 224 U.S. 290; RICHMOND SCREW ANCHOR CO. V. UNITED
STATES, 275 U.S. 331.  BUT THE GENERAL STATUTE PERMITTING SUIT IN THE
COURT OF CLAIMS IN CERTAIN INSTANCES AGAINST THE GOVERNMENT IS NOT A
STATUTE THAT PROVIDES THAT REMEDIES OTHERWISE AT THE PLAINTIFF'S
COMMAND ARE TO BE DISPLACED.  A HOLDING THAT THE AVAILABILITY OF AN
ACTION FOR MONETARY DAMAGES IN THE COURT OF CLAIMS AGAINST THE UNITED
STATES PREVENTS A SUIT AT LAW, OR, IF THE NECESSARY REQUISITES FOR
EQUITY JURISDICTION ARE PRESENT, IN EQUITY, AGAINST THE GOVERNMENTAL
AGENT, WOULD BE AS NOVEL AS IT IS INDEFENSIBLE IN THE LIGHT OF THE
SETTLED COURSE OF DECISIONS.  INDEED, THIS ARGUMENT IS NOT NOVEL; IT
HAS BEEN EXPLICITLY NEGATIVED IN AT LEAST TWO CASES.  SEE SLOAN
SHIPYARDS CORP. V. UNITED STATES FLEET CORP., 258 U.S. 549, 567, 568;
LAND V. DOLLAR, 330 U.S. 731, 738."  LARSON V. DOMESTIC & FOREIGN
CORP., SUPRA, AT 722-723 (DISSENTING OPINION). 

WHAT MR. JUSTICE MILLER SAID IN UNITED STATES V. LEE, SUPRA, 220,
221, NEEDS REPEATING: 

"NO MAN IN THIS COUNTRY IS SO HIGH THAT HE IS ABOVE THE LAW.  NO
OFFICER OF THE LAW MAY SET THAT LAW AT DEFIANCE WITH IMPUNITY.  ALL THE
OFFICERS OF THE GOVERNMENT, FROM THE HIGHEST TO THE LOWEST, ARE
CREATURES OF THE LAW, AND ARE BOUND TO OBEY IT. 

     *         *     *         *         * 

"IT CANNOT BE, THEN, THAT WHEN, IN A SUIT BETWEEN TWO CITIZENS FOR
THE OWNERSHIP OF REAL ESTATE, ONE OF THEM HAS ESTABLISHED HIS RIGHT TO
THE POSSESSION OF THE PROPERTY ACCORDING TO ALL THE FORMS OF JUDICIAL
PROCEDURE, AND BY THE VERDICT OF A JURY AND THE JUDGMENT OF THE COURT,
THE WRONGFUL POSSESSOR CAN SAY SUCCESSFULLY TO THE COURT, STOP HERE, I
HOLD BY ORDER OF THE PRESIDENT, AND THE PROGRESS OF JUSTICE MUST BE
STAYED.  THAT, THOUGH THE NATURE OF THE CONTROVERSY IS ONE PECULIARLY
APPROPRIATE TO THE JUDICIAL FUNCTION, THOUGH THE UNITED STATES IS NO
PARTY TO THE SUIT, THOUGH ONE OF THE THREE GREAT BRANCHES OF THE
GOVERNMENT TO WHICH BY THE CONSTITUTION THIS DUTY HAS BEEN ASSIGNED HAS
DECLARED ITS JUDGMENT AFTER A FAIR TRIAL, THE UNSUCCESSFUL PARTY CAN
INTERPOSE AN ABSOLUTE VETO UPON THAT JUDGMENT BY THE PRODUCTION OF AN
ORDER OF THE SECRETARY OF WAR, WHICH THAT OFFICER HAD NO MORE AUTHORITY
TO MAKE THAN THE HUMBLEST PRIVATE CITIZEN." 

SOVEREIGN IMMUNITY HAS BECOME MORE AND MORE OUT OF DATE, AS THE
POWERS OF THE GOVERNMENT AND ITS VAST BUREAUCRACY HAVE INCREASED. 
KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP., 306 U.S. 381, 390 ET
SEQ.  TO GIVE THE AGENT IMMUNITY FROM SUIT IS, TO USE THE WORDS OF MR.
JUSTICE HOLMES: 

"A VERY DANGEROUS DEPARTURE FROM ONE OF THE FIRST PRINCIPLES OF OUR
SYSTEM OF LAW.  THE SOVEREIGN PROPERLY SO CALLED IS SUPERIOR TO SUIT
FOR REASONS THAT OFTEN HAVE BEEN EXPLAINED.  BUT THE GENERAL RULE IS
THAT ANY PERSON WITHIN THE JURISDICTION ALWAYS IS AMENABLE TO THE LAW. 
IF HE IS SUED FOR CONDUCT HARMFUL TO THE PLAINTIFF HIS ONLY SHIELD IS A
CONSTITUTIONAL RULE OF LAW THAT EXONERATES HIM.  SUPPOSING THE POWERS
OF THE FLEET CORPORATION TO HAVE BEEN GIVEN TO A SINGLE MAN WE DOUBT IF
ANYONE WOULD CONTEND THAT THE ACTS OF CONGRESS AND THE DELEGATIONS OF
AUTHORITY FROM THE PRESIDENT LEFT HIM ANY LESS LIABLE THAN OTHER
GRANTEES OF THE POWER OF EMINENT DOMAIN TO BE CALLED UPON TO DEFEND
HIMSELF IN COURT.  AN INSTRUMENTALITY OF GOVERNMENT HE MIGHT BE AND FOR
THE GREATEST ENDS, BUT THE AGENT, BECAUSE HE IS AGENT, DOES NOT CEASE
TO BE ANSWERABLE FOR HIS ACTS."  SLOAN SHIPYARDS V. UNITED STATES FLEET
CORP., SUPRA, PP. 566-567. 

THE BALANCE BETWEEN THE CONVENIENCE OF THE CITIZEN AND THE MANAGEMENT
OF PUBLIC AFFAIRS IS A RECURRING CONSIDERATION IN SUITS DETERMINING
WHEN AND WHERE A CITIZEN CAN SUE A GOVERNMENT OFFICIAL.   SEE WILLIAMS
V. FANNING, 332 U.S. 490.  THE BALANCE IS, IN MY VIEW, ON THE SIDE OF
THE CITIZEN WHERE HE CLAIMS REALTY IN THE GOVERNMENT'S POSSESSION AND
WHERE THERE ARE READY MEANS OF ADJUDICATING THE TITLE.  IF LEGAL TITLE
IS ACTUALLY IN THE CLAIMANT, IF THE ACTION OF THE OFFICIAL IN TAKING
POSSESSION UNDER AUTHORITY OF THE UNITED STATES IS ULTRA VIRES, WHAT
OBJECTIONABLE INTERFERENCE WITH GOVERNMENTAL FUNCTIONS CAN BE SAID TO
EXIST? 

I AM AUTHORIZED TO SAY THAT MR. JUSTICE HARLAN AGREES WITH THIS
OPINION. 
..END :

















UNITED STATES V. DIEBOLD, INC. 369 U.S. 654 


NO. 286.  ARGUED APRIL 23, 1962 - DECIDED MAY 14, 1962 - 197 F. SUPP.
902, REVERSED. 


IN THIS CIVIL ANTITRUST ACTION BY THE GOVERNMENT CHALLENGING
RESPONDENT'S ACQUISITION OF THE ASSETS OF ANOTHER CORPORATION AS BEING
VIOLATIVE OF SEC. 7 OF THE CLAYTON ACT, THE AFFIDAVITS, EXHIBITS AND
DEPOSITIONS BEFORE THE DISTRICT COURT RAISED A GENUINE ISSUE AS TO
ULTIMATE FACTS MATERIAL TO THE QUESTION WHETHER THE ACQUIRED
CORPORATION WAS A "FAILING COMPANY" UNDER THE DOCTRINE OF INTERNATIONAL
SHOE CO. V. FEDERAL TRADE COMM'N, 280 U.S. 291, AND IT WAS IMPROPER FOR
THE DISTRICT COURT TO DECIDE THE APPLICABILITY OF THAT DOCTRINE AND
DISMISS THE CASE ON A MOTION FOR SUMMARY JUDGMENT.  PP. 654-655. 

UNITED STATES V. DIEBOLD, INCORPORATED. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THIS IS A CIVIL ANTITRUST SUIT BY THE GOVERNMENT CHALLENGING
DIEBOLD'S ACQUISITION OF THE ASSETS OF THE HERRING-HALL-MARVIN SAFE
COMPANY AS BEING VIOLATIVE OF SEC. 7 OF THE CLAYTON ACT.  ON MOTION OF
DIEBOLD THE DISTRICT COURT ENTERED SUMMARY JUDGMENT AGAINST THE
GOVERNMENT ON THE GROUND THAT THE ACQUIRED FIRM WAS A "FAILING COMPANY"
UNDER THE DOCTRINE OF INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N,
280 U.S. 291 (1930).  THE CASE IS HERE ON DIRECT APPEAL.  368 U.S.
894. 

IN DETERMINING THAT THE ACQUISITION OF THE ASSETS OF HERRING-HALL
MARVIN SAFE COMPANY WAS NOT A VIOLATION OF SEC. 7, THE DISTRICT COURT
ACTED UPON ITS FINDINGS THAT "HHM WAS HOPELESSLY INSOLVENT AND FACED
WITH IMMINENT RECEIVERSHIP" AND THAT "DIEBOLD WAS THE ONLY BONA FIDE
PROSPECTIVE PURCHASER FOR HHM'S BUSINESS."  THE LATTER FINDING
REPRESENTS AT LEAST IN PART THE RESOLUTION OF A HEAD-ON FACTUAL
CONTROVERSY AS REVEALED BY THE MATERIALS BEFORE THE DISTRICT COURT OF
WHETHER OTHER OFFERS FOR HHM'S ASSETS OR BUSINESS WERE ACTUALLY MADE. 
IN ANY EVENT BOTH FINDINGS REPRESENT A CHOICE OF INFERENCES TO BE DRAWN
FROM THE SUBSIDIARY FACTS CONTAINED IN THE AFFIDAVITS, ATTACHED
EXHIBITS, AND DEPOSITIONS SUBMITTED BELOW.  ON SUMMARY JUDGMENT THE
INFERENCES TO BE DRAWN FROM THE UNDERLYING FACTS CONTAINED IN SUCH
MATERIALS MUST BE VIEWED IN THE LIGHT MOST FAVORABLE TO THE PARTY
OPPOSING THE MOTION.  A STUDY OF THE RECORD IN THIS LIGHT LEADS US TO
BELIEVE THAT INFERENCES CONTRARY TO THOSE DRAWN BY THE TRIAL COURT
MIGHT BE PERMISSIBLE.  THE MATERIALS BEFORE THE DISTRICT COURT HAVING
THUS RAISED A GENUINE ISSUE AS TO ULTIMATE FACTS MATERIAL TO THE RULE
OF INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, IT WAS IMPROPER FOR
THE DISTRICT COURT TO DECIDE THE APPLICABILITY OF THE RULE ON A MOTION
FOR SUMMARY JUDGMENT.  FED. RULES CIV. PROC., 56(C).  REVERSED AND
REMANDED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :


















MATTOX V. SACKS 369 U.S. 656 


NO. 584, MISC.  DECIDED MAY 14, 1962 - REPORTED BELOW:  172 OHIO ST.
385, 176 N.E.2D 221. 


IN THE CIRCUMSTANCES OF THIS CASE, THE PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF OHIO IS DENIED.  PETITIONER MAY FILE HIS
APPLICATION FOR HABEAS CORPUS IN THE APPROPRIATE UNITED STATES DISTRICT
COURT.  HIS ALLEGATIONS RAISE SERIOUS QUESTIONS UNDER THE FOURTEENTH
AMENDMENT AND ENTITLE HIM TO A HEARING. 

MATTOX V. SACKS, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

PETITIONER WAS CONVICTED IN AN OHIO STATE COURT OF ASSAULT WITH
INTENT TO KILL AND OF CUTTING WITH INTENT TO KILL, WOUND OR MAIM THE
SAME PERSON.  HE IMMEDIATELY SOUGHT A WRIT OF HABEAS CORPUS WHICH WAS
DENIED ON THE GROUND THAT APPEAL WAS THE PROPER REMEDY.  HE THEN
ATTEMPTED TO APPEAL, BUT THIS WAS DENIED AS OUT OF TIME AND THE SUPREME
COURT OF OHIO AFFIRMED THIS DENIAL.  HE UNSUCCESSFULLY SOUGHT HABEAS
CORPUS TWICE MORE, THE LATEST PETITION BEING TO THE SUPREME COURT OF
OHIO AND ALLEGING, AMONG OTHER MATTERS, A DENIAL OF COUNSEL AT HIS
TRIAL AND A DEPRIVATION OF RIGHTS GUARANTEED BY THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  THE SUPREME COURT OF OHIO DENIED THE
PETITION, HOLDING THAT HABEAS CORPUS WAS NOT A SUBSTITUTE FOR APPEAL
AND WAS NOT AVAILABLE TO REMEDY THE DEFECTS ALLEGED BY PETITIONER. 
PETITIONER NOW SEEKS OUR WRIT OF CERTIORARI TO REVIEW THAT RULING. 

THE PETITION FOR CERTIORARI MUST BE DENIED.  THE DECISION BELOW AND
THE SEVERAL PRIOR ACTIONS IN THE OHIO COURTS INDICATE THAT PETITIONER
IS WITHOUT A STATE REMEDY TO CHALLENGE HIS CONVICTION UPON THE FEDERAL
CONSTITUTIONAL GROUNDS ASSERTED.  IN THESE CIRCUMSTANCES, DARR V.
BURFORD, 339 U.S. 200, 208, IS NOT APPLICABLE AND A PRISONER MAY,
WITHOUT FIRST SEEKING CERTIORARI HERE, FILE HIS APPLICATION FOR HABEAS
CORPUS IN THE APPROPRIATE UNITED STATES DISTRICT COURT.  28 U.S.C. SEC.
2254.   MASSEY V. MOORE, 348 U.S. 105; FRISBIE V. COLLINS, 342 U.S.
519.  PETITIONER'S ALLEGATIONS, IF TRUE, WOULD PRESENT SERIOUS
QUESTIONS UNDER THE FOURTEENTH AMENDMENT, AND THOSE ALLEGATIONS WOULD
THEREFORE ENTITLE HIM TO A HEARING.  MASSEY V. MOORE, SUPRA;
PENNSYLVANIA EX REL.  HERMAN V. CLAUDY, 350 U.S. 116. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :





BEST V. CITY OF TOLEDO 369 U.S. 657 


NO. 1048, MISC.  DECIDED MAY 14, 1962 - APPEAL DISMISSED; CERTIORARI
DENIED. 


BEST V. CITY OF TOLEDO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSD. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













TORRANCE V. CALLENIUS, MEMBERS OF THE IOWA BOARD OF CONTROL 369 U.S.
658 


NO. 227, MISC.  DECIDED MAY 14, 1962. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED FOR CONSIDERATION
IN LIGHT OF GOLDLAWR, INC., V. HEIMAN, ANTE, P. 463. 

TORRANCE V. CALLENIUS ET AL., MEMBERS OF THE IOWA BOARD OF CONTROL, ET
AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF GOLDLAWR, INC., V.
HEIMAN, ANTE, P. 463. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART, FOR THE REASONS GIVEN IN
THEIR DISSENT IN THE GOLDLAWR CASE, WOULD DENY CERTIORARI. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :



NEWLON V. BENNETT 369 U.S. 658 


NO. 1110, MISC.  DECIDED MAY 14, 1962 - APPEAL DISMISSED; CERTIORARI
DENIED. 


NEWLON V. BENNETT, WARDEN. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














HOHENSEE V. NEWS SYNDICATE, INC. 369 U.S. 659 


NO. 214.  DECIDED MAY 14, 1962 - REPORTED BELOW:  286 F.2D 527. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED FOR CONSIDERATION
IN LIGHT OF GOLDLAWR, INC., V. HEIMAN, ANTE, P. 463. 

HOHENSEE V. NEWS SYNDICATE, INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF
GOLDLAWR, INC., V. HEIMAN, ANTE, P. 463. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART, FOR THE REASONS GIVEN IN
THEIR DISSENT IN THE GOLDLAWR CASE, WOULD DENY CERTIORARI. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :






SHUBIN V. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CALIFORNIA 369 U.S. 660 


NO. 726.  DECIDED MAY 14, 1962.  - REPORTED BELOW:  299 F.2D 47. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED FOR CONSIDERATION
IN LIGHT OF DAIRY QUEEN, INC., V. WOOD, ANTE, P. 469. 

SHUBIN ET AL. V. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF CALIFORNIA ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF DAIRY
QUEEN, INC., V. WOOD, ANTE, P. 469. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :







KEMP V. UNITED STATES 369 U.S. 661 


NO. 311, MISC.  DECIDED MAY 14, 1962. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED FOR CONSIDERATION
IN LIGHT OF COPPEDGE V. UNITED STATES, ANTE, P. 438. 

KEMP V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF COPPEDGE V. UNITED
STATES, ANTE, P. 438. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINION IN THE COPPEDGE CASE. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :





GARRETT V. UNITED STATES 369 U.S. 662 


NO. 773, MISC.  DECIDED MAY 14, 1962. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED FOR CONSIDERATION
IN LIGHT OF COPPEDGE V. UNITED STATES, ANTE, P. 438. 

GARRETT V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF COPPEDGE V. UNITED
STATES, ANTE, P. 438. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THEIR DISSENTING OPINION IN THE COPPEDGE CASE. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :





COPPEDGE V. UNITED STATES 369 U.S. 438 


NO. 157.  ARGUED DECEMBER 12, 1961 - DECIDED APRIL 30, 1962 - JUDGMENT
VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS. 


TRIED AND CONVICTED IN A FEDERAL DISTRICT COURT, PETITIONER APPLIED TO
THAT COURT UNDER 28 U.S.C. SEC. 1915 FOR LEAVE TO APPEAL IN FORMA
PAUPERIS.  THE DISTRICT COURT DENIED THE APPLICATION AND CERTIFIED THAT
THE APPEAL WAS NOT IN GOOD FAITH.  PETITIONER THEN FILED A SIMILAR
APPLICATION IN THE COURT OF APPEALS, WHICH APPOINTED COUNSEL FOR
PETITIONER.  SUCH COUNSEL FILED A MEMORANDUM IN SUPPORT OF THE
APPLICATION, CONTENDING, INTER ALIA, THAT THE INDICTMENT HAD BEEN
PROCURED BY PERJURED TESTIMONY AND THAT PETITIONER HAD BEEN UNABLE TO
PROVE THIS CHARGE BECAUSE OF THE REFUSAL OF THE DISTRICT COURT TO
PERMIT HIM TO EXAMINE THE TRANSCRIPT OF THE GRAND JURY PROCEEDINGS. 
THE COURT OF APPEALS ORDERED THAT A TRANSCRIPT OF THE TRIAL PROCEEDINGS
BE FURNISHED TO PETITIONER AND THAT THE APPLICATION TO APPEAL IN FORMA
PAUPERIS OTHERWISE BE HELD IN ABEYANCE.  AFTER THE TRANSCRIPT HAD BEEN
PREPARED, THE GOVERNMENT FILED A DETAILED MEMORANDUM OPPOSING THE
APPLICATION AND PETITIONER FILED ANOTHER MEMORANDUM BASED UPON THE
TRANSCRIPT, URGING THE SAME QUESTIONS AND OTHERS WHICH HE CLAIMED
SHOWED THAT HIS APPEAL WAS NOT FRIVOLOUS.  AFTER CONSIDERING THE
PETITION AND THE MEMORANDA IN SUPPORT AND IN OPPOSITION, BUT WITHOUT
HEARING ARGUMENTS, THE COURT OF APPEALS DENIED THE PETITION WITHOUT
OPINION.  HELD:  THE SUMMARY DISPOSITION OF PETITIONER'S APPLICATION
WAS NOT JUSTIFIED.  PP. 440-454. 

(A)  A PERSON CONVICTED IN A FEDERAL DISTRICT COURT OF A FEDERAL
OFFENSE IS ENTITLED TO APPEAL AS A MATTER OF RIGHT, AND HE NEED NOT
PETITION THE COURT OF APPEALS FOR THE EXERCISE OF ITS DISCRETION TO
ALLOW HIM TO BRING THE CASE BEFORE IT.  PP. 441-442. 

(B)  IF A DEFENDANT IS UNABLE TO PAY THE FEE FOR DOCKETING HIS APPEAL
IN THE COURT OF APPEALS OR TO PAY THE COST OF PREPARING A TRANSCRIPT OF
THE RECORD OF THE PROCEEDINGS IN THE TRIAL COURT, HE CANNOT PERFECT HIS
APPEAL EXCEPT BY APPLYING UNDER 28 U.S.C. SEC. 1915 FOR LEAVE TO APPEAL
IN FORMA PAUPERIS.  PP. 442-444. 

(C)  THE SOLE STATUTORY LANGUAGE TO GUIDE THE DISTRICT COURT IN
PASSING UPON SUCH AN APPLICATION IS THAT, "AN APPEAL MAY NOT BE TAKEN
IN FORMA PAUPERIS IF THE TRIAL COURT CERTIFIES IN WRITING THAT IT IS
NOT TAKEN IN GOOD FAITH."  P. 444. 

(D)  THE REQUIREMENT THAT AN APPEAL IN FORMA PAUPERIS BE TAKEN "IN
GOOD FAITH" IS SATISFIED WHEN THE DEFENDANT SEEKS APPELLATE REVIEW OF
ANY ISSUE THAT IS NOT FRIVOLOUS.  PP. 444-445. 

(E)  WHEN A DEFENDANT APPLIES TO A COURT OF APPEALS FOR LEAVE TO
PROCEED IN FORMA PAUPERIS, THE DISTRICT COURT'S CERTIFICATION THAT THE
APPLICATION IS NOT "IN GOOD FAITH" IS ENTITLED TO WEIGHT; BUT IT IS NOT
CONCLUSIVE.  PP. 445-446. 

(F)  IF IT APPEARS FROM THE FACE OF THE PAPERS FILED IN THE COURT OF
APPEALS THAT THE APPLICANT WILL PRESENT ISSUES FOR REVIEW WHICH ARE NOT
CLEARLY FRIVOLOUS, THE COURT OF APPEALS SHOULD GRANT LEAVE TO PROCEED
IN FORMA PAUPERIS, APPOINT COUNSEL TO REPRESENT THE APPELLANT AND
PROCEED TO CONSIDERATION OF THE APPEAL ON THE MERITS IN THE SAME MANNER
THAT IT CONSIDERS PAID APPEALS.  P. 446. 

(G)  IF THE CLAIMS MADE OR THE ISSUES SOUGHT TO BE RAISED BY THE
APPLICANT ARE SUCH THAT THEIR SUBSTANCE CANNOT ADEQUATELY BE
ASCERTAINED FROM THE FACE OF THE APPLICATION, THE COURT OF APPEALS MUST
PROVIDE THE WOULD-BE APPELLANT WITH THE ASSISTANCE OF COUNSEL AND WITH
A TRANSCRIPT OF THE RECORD SUFFICIENT TO ENABLE HIM TO ATTEMPT TO MAKE
A SHOWING THAT THE DISTRICT COURT'S CERTIFICATE OF LACK OF GOOD FAITH
IS ERRONEOUS.  P. 446. 

(H)  IF, WITH SUCH AID, THE APPLICANT THEN PRESENTS ANY ISSUE FOR THE
COURT'S CONSIDERATION WHICH IS NOT CLEARLY FRIVOLOUS, LEAVE TO PROCEED
IN FORMA PAUPERIS MUST BE GRANTED.  P. 446. 

(I)  AN INDIGENT DEFENDANT IS ENTITLED IN ALL RESPECTS TO THE SAME
RIGHT OF APPEAL AS A DEFENDANT WHO IS ABLE TO PAY THE EXPENSES OF HIS
APPEAL.  PP. 446-447. 

(J)  ON AN APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS, THE
BURDEN IS NOT ON THE APPLICANT TO SHOW THAT HIS APPEAL HAS MERIT IN THE
SENSE THAT HE IS BOUND, OR EVEN LIKELY, TO PREVAIL ULTIMATELY; THE
BURDEN IS ON THE GOVERNMENT TO SHOW THAT THE APPEAL IS SO LACKING IN
MERIT THAT THE COURT WOULD DISMISS THE CASE AS FRIVOLOUS ON THE
GOVERNMENT'S MOTION HAD THE CASE BEEN DOCKETED AND HAD A RECORD BEEN
FILED BY AN APPELLANT ABLE TO PAY THE EXPENSES OF COMPLYING WITH THESE
REQUIREMENTS.  PP. 447-448. 

(K)  IF IT IS THE PRACTICE OF A COURT OF APPEALS TO DEFER RULINGS ON
MOTIONS TO DISMISS PAID APPEALS UNTIL THE COURT HAS HAD THE BENEFIT OF
HEARING ARGUMENT AND CONSIDERING BRIEFS AND AN ADEQUATE RECORD, IT MUST
ACCORD THE SAME PROCEDURAL RIGHTS TO A PERSON APPLYING FOR LEAVE TO
PROCEED IN FORMA PAUPERIS.  P. 448. 

(L)  IN PASSING UPON APPLICATIONS FOR LEAVE TO APPEAL IN FORMA
PAUPERIS, THE COURTS OF APPEALS SHOULD HAVE DUE REGARD FOR THE FACTS
THAT FEDERAL RULE OF CRIMINAL PROCEDURE 39(D) REQUIRES THAT, IN SETTING
APPEALS FOR ARGUMENT, PREFERENCE SHALL BE GIVEN BY THE COURTS OF
APPEALS TO APPEALS IN CRIMINAL CASES AND THAT THE PURPOSE OF THIS
REQUIREMENT IS TO MEET THE NEED FOR SPEEDY DISPOSITION OF SUCH CASES. 
PP. 448-450. 

(M)  ALTHOUGH THERE HAVE BEEN MANY PROCEEDINGS AND MUCH DELAY IN
DISPOSING OF THIS CASE, THE PETITIONER HAS NOT YET RECEIVED THE PLENARY
REVIEW OF HIS CONVICTION TO WHICH HE IS ENTITLED, SINCE HE HAS NOT YET
RECEIVED THE BENEFITS OF PRESENTING EITHER ORAL ARGUMENT OR FULL BRIEFS
ON THE MERITS TO THE COURT OF APPEALS.  PP. 450-453. 

(N)  ON THE RECORD IN THIS CASE TAKEN AS A WHOLE, IT CANNOT BE SAID
THAT PETITIONER'S CLAIMS ARE SO FRIVOLOUS AS TO JUSTIFY THE SUMMARY
DISPOSITION OF HIS CASE WHICH WAS ORDERED BELOW.  PP. 450-454. 

COPPEDGE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

TRIED AND CONVICTED IN A FEDERAL DISTRICT COURT FOR AN OFFENSE
AGAINST THE UNITED STATES, PETITIONER APPLIED FOR LEAVE TO APPEAL HIS
CONVICTION TO THE COURT OF APPEALS IN FORMA PAUPERIS.  HIS APPLICATION
WAS DENIED.  THE CASE PRESENTS THIS QUESTION:  WHAT STANDARD IS TO BE
APPLIED BY THE LOWER FEDERAL COURTS IN PASSING UPON SUCH APPLICATIONS? 
THE ARTICULATION OF A USABLE STANDARD HAS BEEN THE SOURCE OF
CONSIDERABLE RECENT LITIGATION.  (FN1)  AND, WHILE WE RECOGNIZE THAT NO
SINGLE WORD OR GROUP OF WORDS CAN PROVIDE A PRECISE FORMULA THAT WILL
DISPOSE OF EVERY CASE, WE THINK IT APPROPRIATE TO INDICATE IN SOMEWHAT
GREATER DETAIL THAN IN THE PAST, THE APPROACH A COURT OF APPEALS MUST
TAKE TOWARD AN INDIGENT'S APPLICATION FOR LEAVE TO TAKE A DIRECT APPEAL
FROM HIS CRIMINAL CONVICTION IN FORMA PAUPERIS. 

STATUTORY PROVISION FOR LITIGATION IN FORMA PAUPERIS IN THE FEDERAL
COURTS IS MADE BY 28 U.S.C. SEC. 1915, AUTHORIZING "ANY COURT OF THE
UNITED STATES" TO ALLOW INDIGENT PERSONS TO PROSECUTE, DEFEND OR APPEAL
SUITS WITHOUT PREPAYMENT OF COSTS.  BEFORE DISCUSSING OUR UNDERSTANDING
OF THE PROPER MANNER IN WHICH A COURT OF APPEALS IS TO EXERCISE ITS
AUTHORITY TO ALLOW A CRIMINAL APPEAL IN FORMA PAUPERIS, WE BELIEVE IT
WOULD BE HELPFUL TO INDICATE BRIEFLY THE LAW APPLICABLE TO CRIMINAL
APPEALS GENERALLY.  THE PROVISIONS OF SEC. 1915 CAN BE UNDERSTOOD AND
APPLIED IN SUCH CASES ONLY WHEN READ TOGETHER WITH THE OTHER PROVISIONS
OF THE JUDICIAL CODE AND THE FEDERAL RULES GOVERNING CRIMINAL APPEALS. 

PRESENT FEDERAL LAW HAS MADE AN APPEAL FROM A DISTRICT COURT'S
JUDGMENT OF CONVICTION IN A CRIMINAL CASE WHAT IS, IN EFFECT, A MATTER
OF RIGHT.  (FN2)  THAT IS, A DEFENDANT HAS A RIGHT TO HAVE HIS
CONVICTION REVIEWED BY A COURT OF APPEALS, AND NEED NOT PETITION THAT
COURT FOR AN EXERCISE OF ITS DISCRETION TO ALLOW HIM TO BRING THE CASE
BEFORE THE COURT.  THE ONLY REQUIREMENTS A DEFENDANT MUST MEET FOR
PERFECTING HIS APPEAL ARE THOSE EXPRESSED AS TIME LIMITATIONS WITHIN
WHICH VARIOUS PROCEDURAL STEPS MUST BE COMPLETED.  FIRST, A TIMELY
NOTICE OF APPEAL MUST BE FILED IN THE DISTRICT COURT TO CONFER
JURISDICTION UPON THE COURT OF APPEALS OVER THE CASE.  (FN3)
SUBSEQUENTLY, DESIGNATIONS OF THE TRANSCRIPT, A RECORD ON APPEAL AND
BRIEFS MUST BE FILED IN THE APPROPRIATE FORUM.  (FN4) 

THE INDIGENT DEFENDANT WILL GENERALLY EXPERIENCE NO MATERIAL
DIFFICULTY IN FILING A TIMELY NOTICE OF APPEAL.  (FN5)  BUT THEREAFTER
HE IS IMMEDIATELY FACED WITH COURT FEES FOR DOCKETING HIS APPEAL IN THE
COURT OF APPEALS AND WITH THE COST OF PREPARING THE RECORD, INCLUDING A
STENOGRAPHIC TRANSCRIPT OF AT LEAST PORTIONS OF THE TRIAL PROCEEDINGS. 
(FN6)  IF HE IS UNABLE TO MEET EITHER OR BOTH OF THESE EXPENSES, HE CAN
PERFECT HIS APPEAL ONLY BY APPLYING FOR LEAVE TO APPEAL IN FORMA
PAUPERIS.  THE APPLICATION, TO BE MADE TO THE DISTRICT COURT IN WHICH
THE DEFENDANT WAS CONVICTED, (FN7) MUST CONFORM TO THE REQUIREMENTS OF
28 U.S.C. SEC. 1915(A) AND INCLUDE, IN AFFIDAVIT FORM, THE DEFENDANT'S
REPRESENTATIONS OF POVERTY, A STATEMENT OF THE CASE, AND HIS BELIEF
THAT HE IS ENTITLED TO REDRESS.  THE SOLE STATUTORY LANGUAGE BY WHICH
THE DISTRICT COURT IS GUIDED IN PASSING UPON THE APPLICATION PROVIDES
"AN APPEAL MAY NOT BE TAKEN IN FORMA PAUPERIS IF THE TRIAL COURT
CERTIFIES IN WRITING THAT IT IS NOT TAKEN IN GOOD FAITH."  28 U.S.C.
SEC. 1915(A). 

WHAT MEANING SHOULD BE PLACED ON THE "GOOD FAITH" OF WHICH THE
STATUTE SPEAKS?  IN THE CONTEXT OF A CRIMINAL APPEAL, WE DO NOT BELIEVE
IT CAN BE READ TO REQUIRE A DISTRICT COURT TO DETERMINE WHETHER THE
WOULD-BE APPELLANT SEEKS FURTHER REVIEW OF HIS CASE IN SUBJECTIVE GOOD
FAITH, I.E., GOOD FAITH FROM HIS SUBJECTIVE POINT OF VIEW.  (FN8)  SUCH
A CONSTRUCTION WOULD DEPRIVE THE LEGISLATION OF SENSIBLE MEANING, THERE
PROBABLY BEING NO CONVICTED DEFENDANT WHO WOULD NOT SINCERELY WISH A
COURT OF APPEALS TO REVIEW HIS CONVICTION.  FURTHER, A SUBJECTIVE
STANDARD MIGHT SUGGEST THAT ONLY PERSONS WHO, IN GOOD CONSCIENCE, COULD
INSIST ON THEIR INNOCENCE, ARE TO BE ENTITLED TO A REVIEW OF THEIR
CONVICTIONS WITHOUT PAYMENT OF COSTS.  WE BELIEVE THIS INTERPRETATION
OF THE STATUTE IS NOT REQUIRED BY REASON NOR IS IT CONSISTENT WITH THE
SOUND ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL COURTS.  WE
HOLD, INSTEAD, THAT "GOOD FAITH" IN THIS CONTEXT MUST BE JUDGED BY AN
OBJECTIVE STANDARD.  WE CONSIDER A DEFENDANT'S GOOD FAITH IN THIS TYPE
OF CASE DEMONSTRATED WHEN HE SEEKS APPELLATE REVIEW OF ANY ISSUE NOT
FRIVOLOUS.  IN SO DOING, WE NOTE THAT IF IN FORMA PAUPERIS LITIGATION
IS ATTEMPTED FOR REASONS THAT MAY GENUINELY BE CHARACTERIZED AS THE
LITIGANT'S "BAD FAITH," EXPRESS AUTHORITY EXISTS IN 28 U.S.C. SEC.
1915(D) FOR DISMISSAL OF THE CAUSE AS FRIVOLOUS.  (FN9) 

IF THE DISTRICT COURT FINDS THE APPLICATION IS NOT IN GOOD FAITH, AND
THEREFORE DENIES LEAVE TO APPEAL IN FORMA PAUPERIS, THE DEFENDANT MAY
SEEK IDENTICAL RELIEF FROM THE COURT OF APPEALS.  (FN10)  IN
CONSIDERING SUCH AN APPLICATION ADDRESSED TO IT, THE COURT OF APPEALS
WILL HAVE BEFORE IT WHAT IS USUALLY THE PRO SE PLEADING OF A LAYMAN AND
THE CERTIFICATE OF A DISTRICT JUDGE THAT THE APPLICANT LACKS "GOOD
FAITH" IN SEEKING APPELLATE REVIEW.  THE DISTRICT COURT'S CERTIFICATE
IS NOT CONCLUSIVE, ALTHOUGH IT IS, OF COURSE, ENTITLED TO WEIGHT. 
(FN11)  HOWEVER, WE HAVE RECOGNIZED THAT THE MATERIALS BEFORE THE COURT
OF APPEALS AT THIS STAGE OF THE PROCEEDINGS ARE GENERALLY INADEQUATE
FOR PASSING UPON THE DEFENDANT'S APPLICATION.  NEVERTHELESS, IF FROM
THE FACE OF THE PAPERS HE HAS FILED, IT IS APPARENT THAT THE APPLICANT
WILL PRESENT ISSUES FOR REVIEW NOT CLEARLY FRIVOLOUS, THE COURT OF
APPEALS SHOULD THEN GRANT LEAVE TO APPEAL IN FORMA PAUPERIS, APPOINT
COUNSEL TO REPRESENT THE APPELLANT AND PROCEED TO CONSIDERATION OF THE
APPEAL ON THE MERITS IN THE SAME MANNER THAT IT CONSIDERS PAID
APPEALS.  IF, ON THE OTHER HAND, THE CLAIMS MADE OR THE ISSUES SOUGHT
TO BE RAISED BY THE APPLICANT ARE SUCH THAT THEIR SUBSTANCE CANNOT
ADEQUATELY BE ASCERTAINED FROM THE FACE OF THE DEFENDANT'S APPLICATION,
THE COURT OF APPEALS MUST PROVIDE THE WOULD-BE APPELLANT WITH BOTH THE
ASSISTANCE OF COUNSEL AND A RECORD OF SUFFICIENT COMPLETENESS TO ENABLE
HIM TO ATTEMPT TO MAKE A SHOWING THAT THE DISTRICT COURT'S CERTIFICATE
OF LACK OF "GOOD FAITH" IS IN ERROR AND THAT LEAVE TO PROCEED WITH THE
APPEAL IN FORMA PAUPERIS SHOULD BE ALLOWED.  (FN12)  IF, WITH SUCH AID,
THE APPLICANT THEN PRESENTS ANY ISSUE FOR THE COURT'S CONSIDERATION NOT
CLEARLY FRIVOLOUS, LEAVE TO PROCEED IN FORMA PAUPERIS MUST BE ALLOWED. 

IN SO HOLDING WE HAVE BEEN IMPELLED BY CONSIDERATIONS BEYOND THE
CORNERS OF 28 U.S.C. SEC. 1915, CONSIDERATIONS THAT IT IS OUR DUTY TO
ASSURE TO THE GREATEST DEGREE POSSIBLE, WITHIN THE STATUTORY FRAMEWORK
FOR APPEALS CREATED BY CONGRESS, EQUAL TREATMENT FOR EVERY LITIGANT
BEFORE THE BAR.  (FN13)  WE HAVE EXPRESSED THIS VIEW IN A CASE
COMPARABLE TO THE ONE BEFORE US HERE BY HOLDING THAT: 

"UNLESS THE ISSUES RAISED BY THE INDIGENT SEEKING LEAVE TO APPEAL IN
FORMA PAUPERIS ARE SO FRIVOLOUS THAT THE APPEAL WOULD BE DISMISSED IN
THE CASE OF A NONINDIGENT LITIGANT, FED. RULES CRIM. PROC. 39(A), THE
REQUEST OF AN INDIGENT FOR LEAVE TO APPEAL IN FORMA PAUPERIS MUST BE
ALLOWED."  ELLIS V. UNITED STATES, 356 U.S. 674, 675. 

THE POINT OF EQUATING THE TEST FOR ALLOWING A PAUPER'S APPEAL TO THE
TEST FOR DISMISSING PAID CASES, IS TO ASSURE EQUALITY OF CONSIDERATION
FOR ALL LITIGANTS.  THE EQUATION IS INTENDED TO PLACE THE BURDENS OF
PROOF AND PERSUASION IN ALL CASES ON THE SAME PARTY - IN THESE CASES,
ON THE GOVERNMENT.  SINCE OUR STATUTES AND RULES MAKE AN APPEAL IN A
CRIMINAL CASE A MATTER OF RIGHT, THE BURDEN OF SHOWING THAT THAT RIGHT
HAS BEEN ABUSED THROUGH THE PROSECUTION OF FRIVOLOUS LITIGATION SHOULD,
AT ALL TIMES, BE ON THE PARTY MAKING THE SUGGESTION OF FRIVOLITY.  IT
IS NOT THE BURDEN OF THE PETITIONER TO SHOW THAT HIS APPEAL HAS MERIT,
IN THE SENSE THAT HE IS BOUND, OR EVEN LIKELY, TO PREVAIL ULTIMATELY. 
HE IS TO BE HEARD, AS IS ANY APPELLANT IN A CRIMINAL CASE, IF HE MAKES
A RATIONAL ARGUMENT ON THE LAW OR FACTS.  IT IS THE BURDEN OF THE
GOVERNMENT, IN OPPOSING AN ATTEMPTED CRIMINAL APPEAL IN FORMA PAUPERIS,
TO SHOW THAT THE APPEAL IS LACKING IN MERIT, INDEED, THAT IT IS SO
LACKING IN MERIT THAT THE COURT WOULD DISMISS THE CASE ON MOTION OF THE
GOVERNMENT, HAD THE CASE BEEN DOCKETED AND A RECORD BEEN FILED BY AN
APPELLANT ABLE TO AFFORD THE EXPENSE OF COMPLYING WITH THOSE
REQUIREMENTS.  (FN14)  IF IT WERE THE PRACTICE OF A COURT OF APPEALS TO
SCREEN THE PAID APPEALS ON ITS DOCKET FOR FRIVOLITY, WITHOUT HEARING
ORAL ARGUMENT, REVIEWING A RECORD OF THE TRIAL PROCEEDINGS OR
CONSIDERING FULL BRIEFS, PAUPERS COULD, OF COURSE, BE BOUND BY THE SAME
RULES.  BUT, IF THE PRACTICE OF THE COURT OF APPEALS IS TO DEFER
RULINGS ON MOTIONS TO DISMISS PAID APPEALS UNTIL THE COURT HAS HAD THE
BENEFIT OF HEARING ARGUMENT AND CONSIDERING BRIEFS AND AN ADEQUATE
RECORD, WE HOLD IT MUST NO LESS ACCORD THE POOR PERSON THE SAME
PROCEDURAL RIGHTS. 

TWO ADDITIONAL FACTORS HAVE RELEVANCE TO OUR VIEW OF THE PROPER
DISPOSITION OF MOTIONS FOR LEAVE TO PERFECT CRIMINAL APPEALS IN FORMA
PAUPERIS.  THESE FACTORS ARE THE FOUNDATION FOR RULE 39(D) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE, SPECIFYING THAT PREFERENCE SHALL
BE GIVEN BY THE COURTS OF APPEALS TO CRIMINAL CASES.  THIS RULE, FIRST,
ACKNOWLEDGES THE IMPORTANCE TO THE SOVEREIGN, TO THE ACCUSED AND TO
SOCIETY OF A CRIMINAL PROSECUTION.  WHEN SOCIETY ACTS TO DEPRIVE ONE OF
ITS MEMBERS OF HIS LIFE, LIBERTY OR PROPERTY, IT TAKES ITS MOST AWESOME
STEPS.  NO GENERAL RESPECT FOR, NOR ADHERENCE TO, THE LAW AS A WHOLE
CAN WELL BE EXPECTED WITHOUT JUDICIAL RECOGNITION OF THE PARAMOUNT NEED
FOR PROMPT, EMINENTLY FAIR AND SOBER CRIMINAL LAW PROCEDURES.  THE
METHODS WE EMPLOY IN THE ENFORCEMENT OF OUR CRIMINAL LAW HAVE APTLY
BEEN CALLED THE MEASURES BY WHICH THE QUALITY OF OUR CIVILIZATION MAY
BE JUDGED.  (FN15)  SECOND, THE PREFERENCE TO BE ACCORDED CRIMINAL
APPEALS RECOGNIZES THE NEED FOR SPEEDY DISPOSITION OF SUCH CASES. 
DELAY IN THE FINAL JUDGMENT OF CONVICTION, INCLUDING ITS APPELLATE
REVIEW, UNQUESTIONABLY ERODES THE EFFICACY OF LAW ENFORCEMENT. 

BOTH OF THESE CONSIDERATIONS ARE PARTICULARLY PERTINENT TO CRIMINAL
APPEALS IN FORMA PAUPERIS.  STATISTICS COMPILED IN THE COURT BELOW
ILLUSTRATE THE UNDENIABLE FACT THAT AS MANY MERITORIOUS CRIMINAL CASES
COME BEFORE THAT COURT THROUGH APPLICATIONS FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AS ON THE PAID DOCKET, AND THAT NO A PRIORI
JUSTIFICATION CAN BE FOUND FOR CONSIDERING THEM, AS A CLASS, TO BE MORE
FRIVOLOUS THAN THOSE IN WHICH COSTS HAVE BEEN PAID.  (FN16)  EVEN
HANDED ADMINISTRATION OF THE CRIMINAL LAW DEMANDS THAT THESE CASES BE
GIVEN NO LESS CONSIDERATION THAN OTHERS ON THE COURTS' DOCKETS. 
PARTICULARLY SINCE LITIGANTS IN FORMA PAUPERIS MAY, IN THE TRIAL COURT,
HAVE SUFFERED DISADVANTAGES IN THE DEFENSE OF THEIR CASES INHERENT IN
THEIR IMPECUNIOUS CONDITION, IS APPELLATE REVIEW OF THEIR CASES ANY
LESS SEARCHING THAN THAT ACCORDED PAID APPEALS INAPPROPRIATE. 
INDIGENTS' APPEALS FROM CRIMINAL CONVICTIONS CANNOT BE USED AS A
CONVENIENT VALVE FOR REDUCING THE PRESSURES OF WORK ON THE COURTS.  IF
THERE ARE THOSE WHO INSIST ON PURSUING FRIVOLOUS LITIGATION, THE COURTS
ARE NOT POWERLESS TO DISMISS OR OTHERWISE DISCOURAGE IT.  BUT IF
FRIVOLOUS LITIGATION EXISTS, WE ARE NOT PERSUADED THAT IT IS
CONCENTRATED IN THIS NARROW, YET VITAL, AREA OF JUDICIAL DUTY. 

SIMILARLY, STATISTICS DEMONSTRATE THE INEVITABLE DELAY THAT SURROUNDS
A PROCEDURE IN WHICH THE COURTS GIVE PIECEMEAL ATTENTION TO THE SERIES
OF MOTIONS THAT INDIGENTS MUST MAKE BEFORE A FINAL ADJUDICATION OF THE
MERITS OF THEIR CASES IS REACHED.  DELAYS DESCRIBED IN YEARS BETWEEN
TRIAL AND FINAL DECISION IN CRIMINAL CASES ARE THE UNHAPPY RESULT OF
SEPARATE CONSIDERATIONS OF MOTIONS FOR THE APPOINTMENT OF COUNSEL, FOR
THE PREPARATION OF A TRANSCRIPT OF THE TRIAL PROCEEDINGS AND,
ULTIMATELY, FOR THE LEAVE TO APPEAL IN FORMA PAUPERIS.  THE CASE BEFORE
US ILLUSTRATES THE POINT.  PETITIONER WAS INDICTED ON JUNE 16, 1958,
FOR OFFENSES ALLEGED TO HAVE BEEN COMMITTED IN EARLY DECEMBER 1957.  HE
WAS FIRST TRIED AND CONVICTED IN DECEMBER 1958.  LEAVE TO APPEAL IN
FORMA PAUPERIS WAS GRANTED BY THE DISTRICT COURT, AND ON JUNE 23, 1959,
THE COURT OF APPEALS REVERSED THE CONVICTION AND REMANDED THE CASE FOR
A NEW TRIAL.  106 U.S. APP. D.C. 275, 272 F.2D 504.  IN OCTOBER 1959,
NEW COUNSEL WAS APPOINTED BY THE DISTRICT COURT TO REPRESENT PETITIONER
AT HIS SECOND TRIAL.  PRE-TRIAL MOTIONS WERE ARGUED IN THE DISTRICT
COURT IN DECEMBER 1959 AND JANUARY 1960, AND PETITIONER'S TRIAL TOOK
PLACE IN THE FIRST WEEK OF MARCH 1960.  PETITIONER WAS CONVICTED AND
THEN SENTENCED ON MARCH 11, 1960.  ON MARCH 22, 1960, THE DISTRICT
COURT DENIED AN APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS.  AN
APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS WAS THEN DIRECTED TO
THE COURT OF APPEALS, AND WAS FILED IN THAT COURT ON APRIL 15, 1960. 
ON APRIL 20, THAT COURT APPOINTED COUNSEL TO REPRESENT PETITIONER, AND
ON JUNE 15, 1960, COUNSEL FILED A 30-PAGE MEMORANDUM IN SUPPORT OF THE
PETITION FOR LEAVE TO APPEAL.  THE FOLLOWING DAY, THE GOVERNMENT
ANSWERED WITH A MEMORANDUM STATING THAT IT BELIEVED IT APPROPRIATE FOR
THE COURT TO ORDER THE PREPARATION OF A TRANSCRIPT AT GOVERNMENT
EXPENSE BEFORE RULING ON THE PETITION FOR LEAVE TO APPEAL.  PETITIONER
OBJECTED TO THIS PROCEDURE ON THE GROUNDS THAT HIS MEMORANDUM
SUFFICIENTLY INDICATED THAT NON-FRIVOLOUS ISSUES WERE PRESENT IN HIS
CASE AND THAT FURTHER DELAY IN ALLOWING THE APPEAL WAS, THEREFORE,
UNWARRANTED.  ON JULY 1, 1960, THE COURT OF APPEALS ORDERED THE
PREPARATION OF A TRANSCRIPT AT THE EXPENSE OF THE UNITED STATES.  THE
TRANSCRIPT BECAME AVAILABLE AUGUST 15, 1960, AND THE GOVERNMENT'S
OPPOSITION TO PETITIONER'S APPLICATION FOR LEAVE TO APPEAL IN FORMA
PAUPERIS WAS FILED, PURSUANT TO AN EXTENSION OF TIME GRANTED BY THE
COURT, ON SEPTEMBER 2, 1960.  THE GOVERNMENT, MISCONCEIVING THE ISSUE
AS WE UNDERSTAND IT, CLAIMED THE POINTS SOUGHT TO BE RAISED WERE "NOT
SUFFICIENTLY SUBSTANTIAL" TO WARRANT AN APPEAL IN FORMA PAUPERIS; IT
DID NOT SUGGEST THE APPEAL SOUGHT WAS "FRIVOLOUS."  PETITIONER FILED A
REPLY MEMORANDUM ON SEPTEMBER 8.  ON NOVEMBER 5, 1960, THE COURT, ONE
JUDGE DISSENTING, DENIED THE PETITION FOR LEAVE TO APPEAL IN FORMA
PAUPERIS.  THE PETITION FOR CERTIORARI WAS FILED IN THIS COURT ON
NOVEMBER 16, 1960, AND WAS GRANTED ON JUNE 19, 1961.  366 U.S. 959.  WE
HEARD ORAL ARGUMENT IN DECEMBER 1961, AND OUR PRESENT DISPOSITION OF
THE CASE, REMANDING IT FOR RECONSIDERATION BY THE COURT OF APPEALS ON
AN INTERMEDIARY STEP, STILL FAR FROM THE END OF PETITIONER'S COURSE
THROUGH THE COURTS ON HIS ORIGINAL CONVICTION, IS NOW ORDERED MORE THAN
FOUR YEARS AFTER THE COMMISSION OF THE OFFENSES FOR WHICH PETITIONER
WAS TRIED AND MORE THAN TWO YEARS FROM THE DATE OF THE TRIAL AND
JUDGMENT PETITIONER SEEKS TO HAVE REVIEWED.  (FN17) 

IN THE LIGHT OF THIS DELAY, IT IS NOT SURPRISING THAT PETITIONER ASKS
US TO REACH THE MERITS OF HIS CASE IMMEDIATELY.  HOWEVER, DELAY ALONE,
UNFORTUNATE THOUGH IT IS, IS NOT SUFFICIENT CAUSE TO BYPASS THE ORDERLY
PROCESSES OF JUDICIAL REVIEW.  CONTRARY TO THE GOVERNMENT'S ASSERTION
HERE THAT PETITIONER HAS ALREADY RECEIVED WHAT AMOUNTS TO PLENARY
REVIEW OF THE CONVICTION FOLLOWING HIS SECOND TRIAL, WE HOLD PETITIONER
HAS NOT YET RECEIVED THE BENEFITS OF PRESENTING EITHER ORAL ARGUMENT OR
FULL BRIEFS ON THE MERITS OF HIS CLAIMS TO THE COURT FIRST CHARGED WITH
THE SUPERVISION OF THE TRIAL COURT.  (FN18)  THE MEMORANDA PREPARED BY
COUNSEL IN SUPPORT OF PETITIONER'S APPLICATION FOR LEAVE TO APPEAL IN
FORMA PAUPERIS WERE NOT INTENDED TO BE, NOR ARE THEY RIGHTLY CONSIDERED
AS, FULL APPELLATE BRIEFS.  BUT THEY DO SERVE TO DEMONSTRATE THAT
PETITIONER SOUGHT CONSIDERATION OF ISSUES THAT IT WOULD BE DIFFICULT
FOR AN APPELLATE COURT TO CONSIDER SO PATENTLY FRIVOLOUS AS TO REQUIRE
A DISMISSAL OF PETITIONER'S CASE WITHOUT FULL BRIEFING OR ARGUMENT.  IN
SO SAYING, WE NEED NOT, AND DO NOT, EXPRESS ANY OPINION ON WHETHER
PETITIONER'S CONVICTION SHOULD ULTIMATELY BE AFFIRMED OR REVERSED.  WE
ONLY HOLD THAT TAKEN AS A WHOLE, PETITIONER'S VARIOUS CLAIMS CANNOT
JUSTIFY THE SUMMARY DISPOSITION OF HIS CASE ORDERED BELOW. 

THE FIRST OF NUMEROUS CLAIMS ASSERTED BY THE PETITIONER IS THAT THE
INDICTMENT AGAINST HIM WAS PROCURED THROUGH THE USE OF PERJURED
TESTIMONY BEFORE THE GRAND JURY.  THIS COURT HAS NOT YET DECIDED
WHETHER SUCH A CHARGE, IF PROVEN, WOULD REQUIRE THE REVERSAL OF A
CRIMINAL CONVICTION BASED UPON AN INDICTMENT RETURNED BY A GRAND JURY
HEARING THE PERJURY.  BUT WE HAVE GRANTED CERTIORARI AND GIVEN FULL
CONSIDERATION TO RELATED ISSUES IN OTHER CASES.  SEE, E.G., COSTELLO V.
UNITED STATES, 350 U.S. 359 (HEARSAY EVIDENCE CONSIDERED BY GRAND
JURY); LAWN V. UNITED STATES, 355 U.S. 339 (ILLEGALLY SEIZED EVIDENCE
CONSIDERED BY GRAND JURY); BECK V. WASHINGTON, POST, P. 541 (ALLEGED
INFLAMMATORY PUBLICITY SURROUNDING STATE GRAND JURY DELIBERATIONS). 

PETITIONER ALSO CLAIMS THAT HE HAS BEEN UNABLE TO PROVE HIS CHARGE
THAT PERJURED TESTIMONY WAS PRESENTED TO THE GRAND JURY BECAUSE OF THE
REFUSAL OF THE COURTS BELOW TO PERMIT HIM TO EXAMINE THE TRANSCRIPT OF
THE GRAND JURY'S PROCEEDINGS.  AGAIN, ALTHOUGH IN THE PARTICULAR
CONTEXT OF THIS CASE ACCESS TO THE NORMALLY SECRET MINUTES OF THE GRAND
JURY MAY ULTIMATELY BE HELD TO HAVE BEEN PROPERLY DENIED, RECENT
VOLUMES OF THE UNITED STATES REPORTS AND THE FEDERAL REPORTER INCLUDE A
NUMBER OF OPINIONS IN WHICH THE EXTENT OF THE SECRECY NORMALLY ATTACHED
TO GRAND JURY MINUTES HAS BEEN EXPLORED.  (FN19) 

A NUMBER OF OTHER ARGUABLE CLAIMS WERE ALSO MADE BY PETITIONER TO
SUPPORT HIS APPLICATION FOR LEAVE TO APPEAL.  BUT WE BELIEVE THOSE
MENTIONED WOULD ALONE HAVE WARRANTED THE ALLOWANCE OF AN APPEAL IN
FORMA PAUPERIS.  THEY MEET THE TEST OF BEING SUFFICIENTLY REASONABLE TO
WITHSTAND A CLAIM THAT THEIR FRIVOLITY IS SO MANIFEST THAT THEY MERIT
NO FURTHER ARGUMENT OR CONSIDERATION, AND THAT DISMISSAL OF
PETITIONER'S CASE IS, THEREFORE, IN ORDER.  THE JUDGMENT OF THE COURT
OF APPEALS IS VACATED, AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  DURING THE PAST FIVE TERMS OF THE COURT, WE HAVE FOUND IT
NECESSARY TO VACATE AND REMAND FOR RECONSIDERATION 14 CASES IN WHICH A
COURT OF APPEALS HAS APPLIED AN ERRONEOUS STANDARD IN PASSING ON AN
INDIGENT'S APPLICATION FOR LEAVE TO APPEAL.  JOHNSON V. UNITED STATES,
352 U.S. 565; FARLEY V. UNITED STATES, 354 U.S. 521; DELBRIDGE V.
UNITED STATES, 354 U.S. 906; EDWARDS V. UNITED STATES, 355 U.S. 36;
ELLIS V. UNITED STATES, 356 U.S. 674; HILL V. UNITED STATES, 356 U.S.
704; CASH V. UNITED STATES, 357 U.S. 219; HANSFORD V. UNITED STATES,
357 U.S. 578; KITCHENS V. UNITED STATES, 358 U.S. 42; SMITH V. UNITED
STATES, 358 U.S. 281; SMITH V. UNITED STATES, 361 U.S. 13; SMITH V.
UNITED STATES, 361 U.S. 38; MCABEE V. UNITED STATES, 361 U.S. 537; LURK
V. UNITED STATES, 366 U.S. 712.  SEE ALSO PAGE V. UNITED STATES, 359
U.S. 116; WILLIS V. UNITED STATES, 362 U.S. 216.  CF. SIMCOX V.
MADIGAN, 366 U.S. 765; RAGAN V. COX, 369 U.S. 437. 

FN2  28 U.S.C. SECS. 1291, 1294; FED. RULES CRIM. PROC. 37(A).  CF.
CARROLL V. UNITED STATES, 354 U.S. 394, 400-401. 

FN3  FED. RULES CRIM. PROC. 37(A); UNITED STATES V. ROBINSON, 361
U.S. 220. 

FN4  FED. RULES CRIM. PROC. 39(C) (RECORD ON APPEAL TO BE DOCKETED IN
COURT OF APPEALS WITHIN 40 DAYS OF FILING OF NOTICE OF APPEAL); RULES
OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 33(B)
(APPLICATION FOR COPIES OF STENOGRAPHIC TRANSCRIPT OF TRIAL PROCEEDINGS
TO BE MADE WITHIN 3 DAYS OF FILING OF NOTICE OF APPEAL, OR WITHIN 10
DAYS IF APPELLANT IS INCARCERATED), 33(C) (APPELLANT'S DESIGNATION OF
RECORD ON APPEAL TO BE FILED WITHIN 20 DAYS OF FILING NOTICE OF
APPEAL), 18(A) (APPELLANT'S BRIEFS DUE WITHIN 20 DAYS OF FILING RECORD
ON APPEAL). 

FN5  ALTHOUGH THE TIMELY FILING OF A NOTICE OF APPEAL IS A
JURISDICTIONAL PREREQUISITE FOR PERFECTING AN APPEAL, UNITED STATES V.
ROBINSON, 361 U.S. 220, A LIBERAL VIEW OF PAPERS FILED BY INDIGENT AND
INCARCERATED DEFENDANTS, AS EQUIVALENTS OF NOTICES OF APPEAL, HAS BEEN
USED TO PRESERVE THE JURISDICTION OF THE COURTS OF APPEALS.  SEE, E.G.,
LEMKE V. UNITED STATES, 346 U.S. 325 (NOTICE OF APPEAL FILED PRIOR TO
JUDGMENT); O'NEAL V. UNITED STATES, 272 F.2D 412 (C.A. 5TH CIR.)(APPEAL
BOND FILED IN DISTRICT COURT); TILLMAN V. UNITED STATES, 268 F.2D 422
(C.A. 5TH CIR.)(APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS FILED
IN DISTRICT COURT); BELTON V. UNITED STATES, 104 U.S. APP. D.C. 81, 259
F.2D 811 (LETTER WRITTEN TO DISTRICT COURT); WILLIAMS V. UNITED STATES,
88 U.S. APP. D.C. 212, 188 F.2D 41 (NOTICE OF APPEAL DELIVERED TO
PRISON OFFICIALS FOR FORWARDING TO DISTRICT COURT).  SEE ALSO JORDAN V.
UNITED STATES DISTRICT COURT, 98 U.S. APP. D.C. 160, 233 F.2D 362,
VACATED ON OTHER GROUNDS SUB NOM. JORDAN V. UNITED STATES, 352 U.S. 904
(MANDAMUS PETITION FILED IN COURT OF APPEALS HELD EQUIVALENT OF NOTICE
OF APPEAL FROM JUDGMENT IN PROCEEDING PURSUANT TO 28 U.S.C. SEC. 2255);
WEST V. UNITED STATES, 94 U.S. APP. D.C. 46, 222 F.2D 774 (PETITION FOR
LEAVE TO APPEAL IN FORMA PAUPERIS FILED IN COURT OF APPEALS HELD
EQUIVALENT IN SEC. 2255 CASE). 

FURTHER, FED. RULES CRIM. PROC. 37(A)(2) EXPRESSLY PROVIDES: 

"WHEN A COURT AFTER TRIAL IMPOSES SENTENCE UPON A DEFENDANT NOT
REPRESENTED BY COUNSEL, THE DEFENDANT SHALL BE ADVISED OF HIS RIGHT TO
APPEAL AND IF HE SO REQUESTS, THE CLERK SHALL PREPARE AND FILE
FORTHWITH A NOTICE OF APPEAL ON BEHALF OF THE DEFENDANT." 

THE SALUTARY PURPOSE OF THIS PROVISION MAY, HOWEVER, NOT BE ACHIEVED
WHEN THE DEFENDANT APPEARS AT SENTENCING WITH COUNSEL.  IF NEITHER
COUNSEL, WHETHER RETAINED OR COURT APPOINTED, NOR THE DISTRICT JUDGE
IMPOSING SENTENCE, NOTIFIES THE DEFENDANT OF THE REQUIREMENT FOR FILING
A PROMPT NOTICE OF APPEAL, THE RIGHT OF APPEAL MAY IRREVOCABLY BE
LOST.  CF. HODGES V. UNITED STATES, 108 U.S. APP. D.C. 375, 282 F.2D
858, CERT. GRANTED, 365 U.S. 810, CERT. DISMISSED AS IMPROVIDENTLY
GRANTED, 368 U.S. 139, 140-141 (DISSENT); LEWIS AND SIMMS V. UNITED
STATES, 107 U.S. APP. D.C. 353, 278 F.2D 33, 111 U.S. APP. D.C. 13, 294
F.2D 209. 

FN6  THE FEE FOR DOCKETING AN APPEAL IN THE COURT OF APPEALS IS $25. 
STENOGRAPHIC TRANSCRIPTS IN THE FEDERAL COURTS COST $0.65 PER PAGE FOR
THE FIRST COPY, AND $0.30 PER PAGE FOR ADDITIONAL COPIES.   TRANSCRIPTS
IN EXCESS OF 100 PAGES ARE NOT UNCOMMON.  THE COST OF PRINTING BRIEFS,
RECORDS, AND APPENDICES, AS ILLUSTRATED BY THE PRESENT CHARGE FOR
PRINTING RECORDS IN THIS COURT, MAY BE $3.80 PER PAGE OR MORE.  THE
PRINTING REQUIREMENTS ARE GENERALLY WAIVED IN APPEALS PROCEEDING IN
FORMA PAUPERIS.  CF. FED. RULES CIV. PROC. 75(M).  BUT IF, IN SUCH
CASES, PRINTING IS REQUIRED BY THE COURT OF APPEALS, THE EXPENSE IS
BORNE BY THE UNITED STATES.  28 U.S.C. SEC. 1915(B). 

FN7  THE STATUTE APPEARS TO CONTEMPLATE AN INITIAL APPLICATION TO THE
DISTRICT COURT BY PROVIDING "AN APPEAL MAY NOT BE TAKEN IN FORMA
PAUPERIS IF THE TRIAL COURT CERTIFIES IN WRITING THAT IT IS NOT TAKEN
IN GOOD FAITH."  28 U.S.C. SEC. 1915(A).  AND THIS IS THE MANNER IN
WHICH THE STATUTE HAS BEEN INTERPRETED.  SEE, E.G., WEST V. UNITED
STATES, 94 U.S. APP. D.C. 46, 222 F.2D 774; WATERMAN V. MCMILLAN, 77
U.S. APP. D.C. 310, 135 F.2D 807; MURREY V. UNITED STATES, 134 F.2D 956
(C.A. 8TH CIR.); BAYLESS V. JOHNSTON, 127 F.2D 531 (C.A. 9TH CIR.).
AND SEE RULES OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT 41(A).  BUT CF. JORDAN V. UNITED STATES DISTRICT COURT, 98 U.S.
APP. D.C. 160, 163, 233 F.2D 362, 365 NOTE 3, VACATED ON OTHER GROUNDS
SUB NOM. JORDAN V. UNITED STATES, 352 U.S. 904. 

FN8  IN DISCUSSING THE "GOOD FAITH" REQUIREMENT OF WHAT IS NOW 28
U.S.C. SEC. 1915(A), SENATOR BACON OF THE SENATE JUDICIARY COMMITTEE
SAID: 

"WHEN A JUDGE HAS HEARD A CASE AND IT IS ABOUT TO BE CARRIED TO AN
APPELLATE COURT, HE  ...  IS IN A POSITION TO JUDGE WHETHER IT IS A
CASE PROCEEDING CAPTIOUSLY, OR VICIOUSLY, OR WITH PREJUDICE, OR FROM
ANY OTHER IMPROPER MOTIVE, OR WHETHER THE LITIGANT IS PROCEEDING IN
GOOD FAITH."  45 CONG. REC. 1533 (1910). 

HOWEVER, HE WAS DISCUSSING PRIMARILY CIVIL SUITS.  AND SEE JAFFE V.
UNITED STATES, 246 F.2D 760 (C.A.2D CIR.)(CIVIL CASE).  BUT IN CRIMINAL
CASES CF. CASH V. UNITED STATES, 104 U.S. APP. D.C. 265, 269, 261 F.2D
731, 735, VACATED, 357 U.S. 219; PARSELL V. UNITED STATES, 218 F.2D 232
(C.A. 5TH CIR.).  SEE ALSO UNITED STATES V. VISCONTI, 261 F.2D 215
(C.A.2D CIR.)(PROCEEDING UNDER 28 U.S.C. SEC. 2255). 

FN9  AND SEE FED. RULES CRIM. PROC. 39(A); FED. RULES CIV. PROC.
12(F). 

FN10  28 U.S.C. SEC. 1915 EXPRESSLY AUTHORIZES "ANY COURT OF THE
UNITED STATES" TO PERMIT A LITIGANT TO PROCEED IN FORMA PAUPERIS.  THUS
IT IS NOT NECESSARY TO CONSIDER THE APPLICATION TO THE COURT OF APPEALS
A SEPARATE "APPEAL" FROM THE ORDER OF THE DISTRICT COURT DENYING
RELIEF, TO WHICH THE TIME REQUIREMENTS OF THE FEDERAL RULES OF CIVIL
PROCEDURE WOULD BE APPLICABLE AS THEY ARE TO APPEALS IN OTHER ANCILLARY
POST-CONVICTION PROCEEDINGS.  CF. ROBERTS V. UNITED STATES DISTRICT
COURT, 339 U.S. 844, 845.  THE COURT BELOW HAS, BY ITS OWN RULE 41(B),
REQUIRED ALL PERSONS SEEKING LEAVE TO APPEAL A JUDGMENT OF THE DISTRICT
COURT IN FORMA PAUPERIS, TO APPLY FOR SUCH LEAVE FROM THE COURT OF
APPEALS WITHIN 30 DAYS OF THE DATE ON WHICH THEIR APPLICATIONS FOR SUCH
RELIEF FROM THE DISTRICT COURT HAVE BEEN DENIED.  THE INSTANT
PETITIONER HAS COMPLIED WITH THIS RULE. 

FN11  JOHNSON V. UNITED STATES, 352 U.S. 565, 566. 

FN12  JOHNSON V. UNITED STATES, 352 U.S. 565, 566.  SEE ALSO FARLEY
V. UNITED STATES, 354 U.S. 521; ELLIS V. UNITED STATES, 356 U.S. 674;
WHITT V. UNITED STATES, 104 U.S. APP. D.C. 1, 259 F.2D 158. 

FN12  CF. GRIFFIN V. ILLINOIS, 351 U.S. 12, IN WHICH WE WERE
PRESENTED WITH A STATE LAW REQUIRING DEFENDANTS IN ALL CRIMINAL CASES
IN THAT STATE TO FURNISH A BILL OF EXCEPTIONS TO THE APPELLATE COURT IN
WHICH THEY SOUGHT REVIEW OF THEIR CONVICTIONS.  THE BILL OF EXCEPTIONS
WAS DIFFICULT, IF NOT IMPOSSIBLE, TO PREPARE WITHOUT A STENOGRAPHIC
TRANSCRIPT OF THE TRIAL PROCEEDINGS.  PERSONS SENTENCED TO DEATH
RECEIVED TRANSCRIPTS AT THE EXPENSE OF THE STATE; ALL OTHERS WERE
REQUIRED TO PURCHASE A TRANSCRIPT.  WE FOUND THE FAILURE OF THE STATE
TO PROVIDE FOR APPELLATE REVIEW FOR INDIGENTS IN NON-CAPITAL CASES,
WHEN SUCH REVIEW WAS AVAILABLE FOR ALL DEFENDANTS ABLE TO PURCHASE
TRANSCRIPTS, AN "INVIDIOUS DISCRIMINATION" INCONSISTENT WITH THE
GUARANTEES OF DUE PROCESS AND EQUAL PROTECTION OF THE LAWS OF THE
FOURTEENTH AMENDMENT.  SEE ALSO ESKRIDGE V. WASHINGTON STATE BOARD, 357
U.S. 214; ROSS V. SCHNECKLOTH, 357 U.S. 575; BURNS V. OHIO, 360 U.S.
252; DOUGLAS V. GREEN, 363 U.S. 192; MCCRARY V. INDIANA, 364 U.S. 277;
SMITH V. BENNETT, 365 U.S. 708, IN WHICH COMPARABLE STATE RULES AND
PRACTICES, EFFECTIVELY LIMITING THE POOR PERSON'S ACCESS TO COURTS
OSTENSIBLY OPEN TO ALL, SIMILARLY HAVE BEEN FOUND VULNERABLE.    FN14
SEE BROWN V. UNITED STATES, 110 U.S. APP. D.C. 310, 293 F.2D 149;
UNITED STATES V. NUDELMAN, 207 F.2D 109 (C.A. 3D CIR.).  CF. UNITED
STATES V. JOHNSON, 327 U.S. 106; SMITH V. UNITED STATES, 105 U.S. APP.
D.C. 414, 267 F.2D 691; YOUNG V. UNITED STATES, 105 U.S. APP. D.C. 415,
267 F.2D 692; UNITED STATES V. PELTZ, 246 F.2D 537 (C.A.2D CIR.). 

FN15  JUSTICE SCHAEFER OF THE SUPREME COURT OF ILLINOIS, IN THE 1956
OLIVER WENDELL HOLMES LECTURE AT THE HARVARD LAW SCHOOL, REPRINTED AS
FEDERALISM AND STATE CRIMINAL PROCEDURE, 70 HARV. L. REV. 1, 26
(1956). 

FN16  JONES V. UNITED STATES, 105 U.S. APP. D.C. 326, 328, 266 F.2D
924, 926.  THERE, JUDGE BAZELON POINTED OUT THAT OF 86 CRIMINAL APPEALS
CONSIDERED BY THE COURT OF APPEALS WITHIN A PERIOD OF APPROXIMATELY 15
MONTHS, 18 WERE PREPAID, WHILE 68 WERE CONSIDERED AFTER EITHER THE
DISTRICT COURT OR THE COURT OF APPEALS HAD GRANTED LEAVE TO APPEAL IN
FORMA PAUPERIS.  OF THIS TOTAL, 14 OF THE PREPAID APPEALS RESULTED IN A
JUDGMENT AFFIRMING THE CONVICTION; A SIMILAR MAJORITY OF THE PAUPERS'
APPEALS RESULTED IN AFFIRMANCE.  HOWEVER, DURING A COMPARABLE SPAN
BETWEEN SEPTEMBER 1, 1957, AND FEBRUARY 28, 1959, 24 CRIMINAL APPEALS
WERE DECIDED BY THE COURT OF APPEALS IN WHICH THE DISTRICT COURT HAD
INITIALLY DENIED LEAVE TO APPEAL IN FORMA PAUPERIS.  IN 11 OF THOSE 24
CASES, REVERSALS WERE ORDERED, AND IN 6 MORE, ONE OF THE THREE JUDGES
OF THE COURT'S PANEL DISSENTED FROM THE JUDGMENT AFFIRMING THE
CONVICTION.  DURING THOSE SAME 18 MONTHS, THE COURT GRANTED 31 OF 47
PETITIONS FOR LEAVE TO TAKE A DIRECT APPEAL IN FORMA PAUPERIS FROM A
CONVICTION, AND THIS COURT SUBSEQUENTLY REVERSED THE DENIALS OF LEAVE
TO APPEAL ORDERED IN THE CASES OF 5 OF THE 16 UNSUCCESSFUL APPLICANTS
IN THE COURT BELOW. 

FN17  THE INSTANT CASE IS NOT UNIQUE IN THIS REGARD.  SEE, E.G.,
JOHNSON:  INDICTED (MARCH 1956), TRIED (MAY 1956), APPEAL IN FORMA
PAUPERIS DENIED, 238 F.2D 565 (C.A.2D CIR. 1956), VACATED, 352 U.S. 565
(1957), CONVICTION AFFIRMED ON THE MERITS, 254 F.2D 175, PETITION FOR
CERTIORARI DISMISSED PER STIPULATION OF PARTIES, 357 U.S. 933 (JUNE
1958); FARLEY:  INDICTED (DECEMBER 1955), TRIED (MAY 1956), APPLICATION
FOR LEAVE TO APPEAL IN FORMA PAUPERIS REMANDED TO DISTRICT COURT, 238
F.2D 575 (C.A.2D CIR. 1956), APPEAL IN FORMA PAUPERIS DENIED, 242 F.2D
338, VACATED, 354 U.S. 521 (1957), REMANDED TO DISTRICT COURT FOR
SETTLING TRANSCRIPT (DECEMBER 1960), APPEAL IN FORMA PAUPERIS GRANTED
BY DISTRICT COURT (MAY 1961), CONVICTION AFFIRMED ON THE MERITS, 292
F.2D 789 (1961), CERT. DENIED, 369 U.S. 857 (APRIL 1962); ELLIS:
INDICTED (APRIL 1956), TRIED (SEPTEMBER 1956), APPEAL IN FORMA PAUPERIS
DENIED, 101 U.S. APP. D.C. 386, 249 F.2D 478 (1957), VACATED, 356 U.S.
674 (1958), CONVICTION AFFIRMED ON THE MERITS, 105 U.S. APP. D.C. 86,
264 F.2D 372, CERT. DENIED, 359 U.S. 998 (MAY 1959), MOTION FOR LEAVE
TO FILE PETITION FOR REHEARING DENIED, 361 U.S. 945 (JANUARY 1960). 

FN18  THIS ARGUMENT WAS ALSO PRESENTED BY THE GOVERNMENT, AND THEN
REJECTED BY US, IN LURK V. UNITED STATES, 366 U.S. 712. 

FN19  SEE, E.G., PITTSBURGH PLATE GLASS CO. V. UNITED STATES, 360
U.S. 395, 399-400; DE BINDER V. UNITED STATES, 110 U.S. APP. D.C. 244,
246, 292 F.2D 737, 739; UNITED STATES V. ROSE, 215 F.2D 617, 628-630
(C.A. 3D CIR.); PARR V. UNITED STATES, 265 F.2D 894, 901-904 (C.A. 5TH
CIR.), REVERSED ON OTHER GROUNDS, 363 U.S. 370.  CF. UNITED STATES V.
PROCTER & GAMBLE CO., 356 U.S. 677, 682-684.  SEE LOUISELL, CRIMINAL
DISCOVERY:  DILEMMA REAL OR APPARENT?  49 CALIF. L. REV. 56, 68-71
(1961); NOTE, INSPECTION OF GRAND JURY MINUTES BY CRIMINAL DEFENDANTS,
1961 WASH. U.L.Q. 382. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN AGREES,
CONCURRING. 

IN JOINING THE OPINION AND JUDGMENT OF THE COURT, I THINK IT
APPROPRIATE TO ADD A FEW WORDS.  THE RULE OF ELLIS V. UNITED STATES IS
A SIMPLE ONE.  AN APPEAL IN FORMA PAUPERIS MUST BE ALLOWED IN A
CRIMINAL CASE "UNLESS THE ISSUES RAISED ARE SO FRIVOLOUS THAT THE
APPEAL WOULD BE DISMISSED IN THE CASE OF A NONINDIGENT LITIGANT."  356
U.S. 674, 675.  THE DIFFICULTIES WHICH THE COURTS OF APPEALS HAVE
ENCOUNTERED IN APPLYING THIS SIMPLE AND PRACTICAL TEST ARE LARGELY, I
THINK, OF THEIR OWN MAKING. 

THESE DIFFICULTIES MAY STEM IN PART FROM A FAILURE TO CONSIDER THE IN
FORMA PAUPERIS STATUTE IN THE CONTEXT OF THE OVER-ALL SCHEME GOVERNING
CRIMINAL APPEALS.  OUR STATUTES AND RULES MAKE AN APPEAL IN A CRIMINAL
CASE A MATTER OF RIGHT.  THE PROVISIONS GOVERNING APPEALS IN FORMA
PAUPERIS ARE NOT TO BE READ AS DILUTING THAT RIGHT BY IMPOSING A MORE
STRINGENT TEST OF MERIT.  RATHER, 28 U.S.C. SEC. 1915 PROVIDES AT MOST
A DEVICE FOR ADVANCE SCREENING OF APPEALS WHICH, IF PAID, WOULD UPON
MOTION BE DISMISSED BEFORE ARGUMENT AS FRIVOLOUS.  THE ONLY
JUSTIFICATION FOR SUCH A PRELIMINARY SCREENING IS THE ABSENCE OF THE
BUILT-IN PECUNIARY BRAKE UPON FRIVOLOUS APPEALS WHICH IS PRESENT IN
NONINDIGENT CASES.  THERE IS NO OTHER DIFFERENCE BETWEEN PAID AND
UNPAID APPEALS.  IN BOTH, THE BURDEN OF SHOWING THAT THE RIGHT TO
APPEAL HAS BEEN ABUSED IS ON THE PARTY MAKING THE SUGGESTION. 

IT HAS BEEN SAID THAT A DISTRICT COURT'S CERTIFICATION THAT AN APPEAL
IS NOT TAKEN IN GOOD FAITH IS ENTITLED TO GREAT WEIGHT.  JOHNSON V.
UNITED STATES, 352 U.S. 565, 566.  NEVERTHELESS, IF A DISTRICT COURT
HAS DENIED LEAVE TO APPEAL IN FORMA PAUPERIS, THE COURT OF APPEALS HAS
THE ULTIMATE RESPONSIBILITY OF DECIDING FOR ITSELF WHETHER THE APPEAL
IS FRIVOLOUS.  JUSTICE DEMANDS AN INDEPENDENT AND OBJECTIVE ASSESSMENT
OF A DISTRICT JUDGE'S APPRAISAL OF HIS OWN CONDUCT OF A CRIMINAL
TRIAL.  ANYTHING LESS WOULD IMPOSE A DISABILITY UPON INDIGENT
DEFENDANTS FAR GREATER THAN THAT CONTEMPLATED BY THE PRELIMINARY
SCREENING PROVISION WHICH SEC. 1915 PERMITS.  THE STATUTORY SAFEGUARD
AGAINST OVERINDULGENCE IN FREE FRIVOLOUS APPEALS CANNOT BE ALLOWED TO
IMPINGE UPON THE FUNDAMENTAL RIGHT OF EVERY LITIGANT, RICH OR POOR, TO
EQUAL CONSIDERATION BEFORE THE COURTS. 

WHEN A COURT OF APPEALS CHOOSES TO UTILIZE THE PRELIMINARY SCREENING
DEVICE PERMITTED BY SEC. 1915, DIFFICULTIES OF THE KIND EVIDENT IN THIS
CASE FREQUENTLY ARISE.  THE BARE APPLICATION FOR LEAVE TO APPEAL IN
FORMA PAUPERIS SELDOM FURNISHES SUFFICIENT MATERIAL FOR EVALUATING THE
WEIGHT OF THE ISSUES INVOLVED.  FOR THIS REASON, WE HAVE HELD THAT IN
SUCH CASES A COURT OF APPEALS MUST PROVIDE THE APPLICANT WITH THE
ASSISTANCE OF COUNSEL AND WITH A RECORD OF SUFFICIENT COMPLETENESS TO
GIVE HIM FULL OPPORTUNITY TO SHOW THAT THE APPEAL IS IN "GOOD FAITH." 
JOHNSON V. UNITED STATES, SUPRA; FARLEY V. UNITED STATES, 354 U.S.
521.  IN THE COURSE OF SUCH PROCEEDINGS, HOWEVER, EXPERIENCE HAS SHOWN
THAT THERE MAY BE A TENDENCY TO LOSE SIGHT OF THE PRECISE ISSUE BEFORE
THE COURT AT THIS POINT - WHETHER THE APPEAL IS SO FRIVOLOUS THAT IT
WOULD BE DISMISSED EVEN IF ALL THE FEES HAD BEEN PAID.  OBVIOUSLY
ARGUMENTS CONCERNING THE WEIGHT OF THE ISSUES RAISED BY AN APPEAL ARE
DIFFICULT TO DISENGAGE FROM ARGUMENTS DEALING WITH THE ULTIMATE MERITS
OF THESE SAME ISSUES.  UNDERSTANDABLY AND COMMENDABLY, COUNSEL FOR
INDIGENT DEFENDANTS OFTEN EXERT VERY EFFORT TO PROVE THE SUBSTANTIAL
NATURE OF THEIR CLIENTS' CLAIMS - AN EXERTION OF ENERGY WHICH DRAWS A
SIMILAR EFFORT FROM GOVERNMENT COUNSEL.  THE PRODUCT OF THESE FORCES IS
A PROCEDURE WHICH MAY BEAR CLOSE SUPERFICIAL RESEMBLANCE TO THE APPEAL
ITSELF. 

THE RESULT IS THAT A COURT OF APPEALS MAY COME TO THINK OF THESE
PRELIMINARY PROCEEDINGS AS TANTAMOUNT TO APPEALS ON THE MERITS, AND MAY
TEND TO DECIDE WHETHER OR NOT TO GRANT LEAVE TO APPEAL BY APPRAISING
THE ENTIRE CASE IN TERMS OF WHETHER OR NOT REVERSIBLE ERROR APPEARS. 
BY THE SAME TOKEN, WHEN LEAVE TO APPEAL HAS BEEN DENIED, AND THE CASE
HAS COME HERE, THE GOVERNMENT HAS ARGUED IN THE PAST, AS IT ARGUES IN
THIS CASE, THAT THE PRELIMINARY SCREENING PROCEDURE WAS ITSELF THE
EQUIVALENT OF AN AFFIRMANCE ON THE MERITS.  SEE LURK V. UNITED STATES,
366 U.S. 712. 

THIS ATTEMPTED CONVERSION OF THE PROCEEDINGS TO DETERMINE GOOD FAITH
INTO A TRUNCATED SUBSTITUTE FOR APPEAL DISTORTS THE PURPOSE OF SEC.
1915, AND, IF ACCEPTED, WOULD RAISE SERIOUS QUESTIONS OF DUE PROCESS. 
THE FILING OF MEMORANDA IN SUPPORT OF AN APPLICATION FOR LEAVE TO
APPEAL IS NOT AN APPEAL.   THE MERITS OF THE ULTIMATE ISSUES ARE NOT
LOGICALLY INVOLVED AT THIS POINT, BUT ONLY THE WEIGHT OF THOSE ISSUES. 
APPELLATE BRIEFS ARE NOT WRITTEN OR SUBMITTED.  THERE IS NO ORAL
ARGUMENT.  THE COURT'S MODE OF CONSIDERING SUCH MEMORANDA, AS A MATTER
OF INTERNAL MACHINERY, MAY MARKEDLY DIFFER FROM THE PROCESS EMPLOYED IN
THE DECISION OF CASES ACTUALLY ON APPEAL.  FOR ALL THESE REASONS THE
INTERIM PROCEEDING PERMITTED BY SEC. 1915 CANNOT ITSELF BE DEEMED TO
CONSTITUTE THE APPEAL TO WHICH A PERSON CONVICTED OF CRIME IN THE
FEDERAL COURTS IS ENTITLED. 

IN ADDITION TO THE DANGER OF EQUATING THE "GOOD FAITH" DETERMINATION
WITH THE APPEAL ITSELF, THERE ARE OTHER DISADVANTAGES INHERENT IN
COMPELLING THE PARTIES TO GO THROUGH THE PRELIMINARY PROCEDURE
PERMITTED BY SEC. 1915.  IT IS A SERIOUS IMPOSITION UPON APPOINTED
COUNSEL TO REQUIRE DISSIPATION OF ENERGY AND TIME IN PRELIMINARY
SKIRMISHING.  MOREOVER, THE DELAY OCCASIONED BY THIS EXTENDED INTERIM
PROCEEDING IS ITSELF OFFENSIVE TO THE IDEAL OF SPEEDY ADMINISTRATION OF
CRIMINAL JUSTICE. 

THE PRIMARY RESPONSIBILITY FOR CONTAINING WITHIN LIMITED BOUNDS THE
SEPARATE "GOOD FAITH" PROCEEDING PERMITTED BY SEC. 1915 RESTS UPON
THOSE COURTS OF APPEALS WHICH CHOOSE TO UTILIZE THIS SYSTEM OF DEALING
WITH IN FORMA PAUPERIS APPEALS.  WHILE I WOULD NOT DENY GREAT LATITUDE
TO THE VARIOUS CIRCUITS AUTONOMOUSLY TO DEVISE THEIR OWN PROCEDURES
CONSISTENT WITH THEIR APPRAISAL OF LOCAL CONDITIONS AND NEEDS, THE
COURTS' DUTY IN THIS AREA CAN BE PROPERLY ACHIEVED ONLY BY KEEPING IN
MIND THE VERY LIMITED TEST OF "GOOD FAITH" WHICH THE ELLIS CASE
ESTABLISHED. 

THIS SUGGESTS THAT EACH COURT OF APPEALS MIGHT WELL CONSIDER WHETHER
ITS TASK COULD NOT BE MORE EXPEDITIOUSLY AND RESPONSIBLY PERFORMED BY
SIMPLY GRANTING APPLICATIONS TO APPEAL FROM CRIMINAL CONVICTIONS IN
FORMA PAUPERIS AS A MATTER OF COURSE, AND APPOINTING COUNSEL TO BRIEF
AND ARGUE EACH CASE ON THE MERITS.  THE GOVERNMENT WOULD THEN BE FREE
IN ANY CASE TO FILE BEFORE ARGUMENT A MOTION TO DISMISS THE APPEAL AS
FRIVOLOUS, AS EVERY APPELLEE IS ALWAYS FREE TO DO.  IN THE ABSENCE OF
SUCH A MOTION AN APPEAL WHICH AFTER ARGUMENT APPEARED CLEARLY WITHOUT
MERIT COULD BE EXPEDITIOUSLY DISPOSED OF BY SUMMARY AFFIRMANCE, IN THE
SECURE KNOWLEDGE THAT ALL THE ISSUES HAD BEEN FULLY CANVASSED.  THIS
PROCEDURE, IT SEEMS TO ME, WOULD NOT ONLY SAVE THE TIME AND ENERGY OF
COURT AND COUNSEL, BUT WOULD OBVIATE THE MANY DIFFICULTIES WHICH, AS
THE PRESENT CASE SHOWS, THE COMPLICATED TWO-STEP SYSTEM IS ALL TOO
LIKELY TO PRODUCE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

                                         I. 

CONGRESS HAS PROVIDED THAT NO INDIGENT APPEAL MAY BE TAKEN "IF THE
TRIAL COURT CERTIFIES IN WRITING THAT IT IS NOT TAKEN IN GOOD FAITH,"
I.E., IS FRIVOLOUS.  28 U.S.C. SEC. 1915(A).  WITH THE OPINION TODAY
THE COURT FOR ALL PRACTICAL PURPOSES REPEALS THIS STATUTE BY PLACING
THE BURDEN ON THE GOVERNMENT TO SUSTAIN SUCH A CERTIFICATION RATHER
THAN ON THE INDIGENT TO OVERTURN IT.  THIS POSITION IS A SUB SILENTIO
REVERSAL OF OUR PREVIOUS HOLDING IN FARLEY V. UNITED STATES, 354 U.S.
521, 523 (1957), WHERE WE SAID THAT "PETITIONER HAS NOT YET BEEN
AFFORDED AN ADEQUATE OPPORTUNITY TO SHOW THE COURT OF APPEALS THAT HIS
CLAIMED ERRORS ARE NOT FRIVOLOUS  ...  ."  ACCORD, JOHNSON V. UNITED
STATES, 352 U.S. 565 (1957).  (FN1)  MOREOVER, THE COURT GOES AGAINST A
LONG LINE OF CASES HOLDING THAT THE TRIAL JUDGE'S CERTIFICATE OF
FRIVOLITY IS ENTITLED TO "GREAT WEIGHT" - A RULE WHICH THE OPINION HERE
NOTES BUT FAILS TO RECOGNIZE.  IF THE FINDING IS ENTITLED TO "GREAT
WEIGHT," IN FACT CONTROLLING WEIGHT IN THE ABSENCE OF "SOME SHOWING
THAT THE CERTIFICATE IS MADE WITHOUT WARRANT  ...  ," WELLS V. UNITED
STATES, 318 U.S. 257, 259 (1943), HOW CAN IT BE SAID THE GOVERNMENT HAS
THE BURDEN OF UPHOLDING IT?  THE COURT SEEMS TO SAY THE BURDEN IS UPON
THE GOVERNMENT BECAUSE WHEN IT FILES A MOTION TO DISMISS IN A
NONINDIGENT CASE IT HAS THE BURDEN OF SHOWING FRIVOLITY.  I SUBMIT THE
TWO ARE NOT AT ALL ANALOGOUS.  IN THE CASE OF PAID APPEALS CONGRESS HAS
NOT PROVIDED FOR A DETERMINATION BY THE TRIAL COURT OF WHETHER THE
ISSUES WARRANT FURTHER REVIEW, AND TO TREAT NONPAID APPEALS LIKE PAID
APPEALS IS TO IGNORE SUCH A PROVISION IN THE STATUTE GOVERNING INDIGENT
APPEALS. 

THE COURT DOES NOT MAKE CLEAR ON WHAT GROUNDS IT BASES ITS ASSUMPTION
THAT THE GOVERNMENT HAS THE BURDEN OF SHOWING FRIVOLITY.  IT PROFESSES
TO ACT "WITHIN THE STATUTORY FRAMEWORK FOR APPEALS CREATED BY
CONGRESS"; BUT IT INTIMATES THAT IT IS "IMPELLED BY CONSIDERATIONS
BEYOND THE CORNERS OF 28 U.S.C. SEC. 1915," AND THE TOUCHSTONE OF ITS
OPINION IS A PRINCIPLE ARISING FROM CASES BASED ON THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  I DO NOT BELIEVE, HOWEVER, THAT A
DISPARITY IN THE BURDEN OF SHOWING FRIVOLITY DENIES EQUAL JUSTICE AS
BETWEEN PAID AND NONPAID APPEALS.  THEY BOTH REMAIN SUBJECT TO THE SAME
PERIL.  CONGRESS HAS SET UP A SPECIAL PROCEDURE WHICH SUBJECTS EVERY
NONPAID APPEAL TO AN EXAMINATION TO DETERMINE IF FURTHER BRIEFING AND
ORAL ARGUMENT ARE NECESSARY.  SUCH AN EXAMINATION IN THE CASE OF PAID
APPEALS IS LEFT TO THE INITIATIVE OF THE COURT OR THE GOVERNMENT.  THIS
DISTINCTION DOES NOT GIVE RISE TO A DISCRIMINATION OF CONSTITUTIONAL
PROPORTIONS.  AS WAS POINTED OUT IN HIRABAYASHI V. UNITED STATES, 320
U.S. 81, 100 (1943), "THE FIFTH AMENDMENT CONTAINS NO EQUAL PROTECTION
CLAUSE AND IT RESTRAINS ONLY SUCH DISCRIMINATORY LEGISLATION BY
CONGRESS AS AMOUNTS TO A DENIAL OF DUE PROCESS  ...  .  CONGRESS MAY
HIT AT A PARTICULAR DANGER WHERE IT IS SEEN, WITHOUT PROVIDING FOR
OTHERS WHICH ARE NOT SO EVIDENT OR SO URGENT."  I SEE NO CONSTITUTIONAL
IMPEDIMENT TO ASKING ONE WHO SEEKS A FREE RIDE TO SHOW THAT HE IS NOT
JUST A JOYRIDER.  ALTHOUGH A GOVERNMENT THAT AFFORDS APPELLATE REVIEW
MUST PAY THE COST OF MERITORIOUS INDIGENT APPEALS, SURELY IT MAY
PROTECT ITSELF FROM FRIVOLOUS ONES (WHICH INCIDENTALLY IN NUMBERS
OVERWHELMINGLY PREDOMINATE) BEING "SUBSIDIZED AND PUBLIC MONEYS  ...
NEEDLESSLY SPENT."  GRIFFIN V. ILLINOIS, 351 U.S. 12, 24
(1956)(CONCURRING OPINION). 

                                        II. 

THE COURT HOLDS THAT PETITIONER IS ENTITLED TO ORAL ARGUMENT IN THE
COURT OF APPEALS ON NEW BRIEFS.  AN EXAMINATION OF THE RECORD SHOWS
THAT THE ACTION OF THE COURT OF APPEALS WAS ON THE BASIS OF A COMPLETE
TRANSCRIPT AND EXTENSIVE BRIEFS FILED BY COUNSEL.  WITH DUE DEFERENCE
TO THE COURT'S SUGGESTION THAT THESE BRIEFS WERE ONLY PRELIMINARY, I
FIND THEM TO BE SUBSTANTIALLY SIMILAR IN BOTH BULK AND SUBSTANCE TO THE
ONES FILED HERE ON WHICH PETITIONER ASKS FOR A DECISION ON THE MERITS. 
UPON SUCH PRESENTATION THE COURT OF APPEALS FOUND ITSELF SATISFIED THAT
PETITIONER'S CONVICTION WAS PROPER.  IT IS TRUE THAT NO ORAL ARGUMENT
WAS PERMITTED.  HOWEVER, HAVING COME TO THE CONCLUSION THAT THE CASE
HAD NO MERIT, THE COURT HAD TO PUT A STOP TO THE REVIEW PROCEEDING. 
THIS IS TRUE WHETHER THE APPEAL IS PAID OR NONPAID.  SEE UNITED STATES
V. JOHNSON, 327 U.S. 106 (1946).  WE ADJUDICATE MOST OF OUR APPEALS IN
THE SAME MANNER, I.E., BY DISMISSING OR AFFIRMING ON THE BRIEFS WITHOUT
ARGUMENT.  INASMUCH AS THE CASE HAD ARISEN WITHIN THE PROCEDURAL
CONFINES OF APPEALS IN FORMA PAUPERIS, THE COURT OF APPEALS SIMPLY
DENIED LEAVE TO APPEAL.  IT COULD HAVE GRANTED LEAVE TO PROCEED AND
THEN SUMMARILY AFFIRMED OR DISMISSED THE APPEAL UNDER RULE 39(A), FED.
RULES CRIM. PROC.  I SEE NO SUBSTANTIAL DISTINCTION BETWEEN THE TWO
DISPOSITIONS. 

THE COURT, HOWEVER, IS REMANDING THE CASE FOR FURTHER REVIEW
PROCEEDINGS BECAUSE IT HAS CONCLUDED THAT AT LEAST TWO OF PETITIONER'S
CLAIMS ARE NOT FRIVOLOUS AND THAT THE COURT OF APPEALS THEREFORE ERRED
IN NOT ALLOWING THE REVIEW TO RUN ITS FULL LENGTH.  THE COURT IN
REACHING THIS CONCLUSION HAS, IN MY VIEW, MISPLACED THE BURDEN ON THE
ISSUE OF FRIVOLITY, BUT EVEN ASSUMING ARGUENDO THAT PETITIONER'S
CONTENTIONS ARE NOT FRIVOLOUS, I CANNOT AGREE TO THE FRUITLESS APPROACH
THE COURT HAS TAKEN. 

TO BE SURE, FRIVOLITY OR SOME ANALOGOUS STANDARD DELIMITS THOSE
APPEALS, PAID OR NONPAID, WHICH CAN BE DECIDED WITHOUT ORAL ARGUMENT. 
HOWEVER, IT WOULD SEEM THAT ANY ERROR BY A COURT OF APPEALS IN
EVALUATING FRIVOLITY UPON SUCH A FULL PRESENTATION AS WAS HAD BELOW IS
OFTEN NOT ONLY INCORRECTABLE BUT HARMLESS.  CONCEDEDLY, THIS COURT HAS
OF LATE CONSISTENTLY REMANDED CASES IN WHICH A COURT OF APPEALS HAS
MISTAKENLY CHARACTERIZED CONTENTIONS AS FRIVOLOUS.  EXPERIENCE HAS
SHOWN THIS TACK TO BE UNSATISFACTORY, AND PERHAPS IT IS NOW TIME TO RE
EVALUATE OUR APPROACH. 

THIS IS NOT TO SAY THAT WE SHOULD DO A COMPLETE TURN ABOUT AND NEVER
REMAND A CASE FOR FURTHER REVIEW.  WHAT I AM SUGGESTING IS THAT WE GIVE
SUBSTANCE TO THE CONGRESSIONAL MANDATE AND YET ANALYZE, INTER ALIA, THE
THOROUGHNESS OF THE REVIEW BELOW, THE CHARACTER OF THE ISSUES RAISED,
THE BENEFICIALITY OF FURTHER ACTION BY A LOWER COURT, AND THE STRENGTH
OR WEAKNESS OF THE CONTENTIONS MADE.  APPLYING SUCH CRITERIA TO THE
PRESENT CASE, I AM CONVINCED THAT TO REMAND THIS CASE WILL ONLY COMPEL
THE LOWER COURT TO GO THROUGH WASTEFUL FORMALITIES TO THE DETRIMENT OF
ITS CONSIDERATION OF OTHER APPEALS AND PUT OFF TO ANOTHER DAY ACTION BY
THIS COURT.  (FN2)  THE COURT SPEAKS OF LONG DELAYS, BUT BY REMANDING
IT APPEARS TO HAVE CONTRIBUTED TO THE VERY EVIL WHICH IT SEEKS TO
ELIMINATE.  I WOULD FOLLOW THE TEACHING OF POLLARD V. UNITED STATES,
352 U.S. 354 (1957), AND HOLIDAY V. JOHNSTON, 313 U.S. 342 (1941), AND
DECIDE THE MERITS OF PETITIONER'S CONTENTIONS NOW.  I THEREFORE
DISSENT. 

FN1  ELLIS V. UNITED STATES, 356 U.S. 674 (1958), IS INAPPOSITE. 
THERE THE COURT WAS CONCERNED WITH THE STANDARD GOVERNING THE ALLOWANCE
OF APPEALS IN FORMA PAUPERIS, NOT WITH WHERE RESTS THE BURDEN OF
SHOWING FRIVOLITY IN THE FACE OF A CERTIFICATION BY THE TRIAL COURT. 

FN2  FOR A CASE IN WHICH A SIMILAR WARNING WAS SOUNDED, SEE LURK V.
UNITED STATES, 366 U.S. 712 (1961)(DISSENTING OPINION).  SUBSEQUENT
EVENTS HAVE SHOWN THIS ADMONITION TO BE WORDS OF WISDOM INDEED.  SEE
111 U.S. APP. D.C. 238, 296 F.2D 360, CERTIORARI GRANTED, 368 U.S.
815.  (FOR SUBSEQUENT DECISION OF THIS COURT, SEE 370 U.S. 530
(1962).) 
..END :






















GOLDLAWR, INC., V. HEIMAN 369 U.S. 463 


NO. 101.  ARGUED MARCH 19, 1962 - DECIDED APRIL 30, 1962 - 288 F.2D 579,
REVERSED. 


PETITIONER BROUGHT THIS PRIVATE ANTITRUST ACTION FOR TREBLE DAMAGES
AND OTHER RELIEF UNDER SECS. 1 AND 2 OF THE SHERMAN ACT AND SEC. 4 OF
THE CLAYTON ACT IN A FEDERAL DISTRICT COURT IN PENNSYLVANIA.  ON A
MOTION TO DISMISS ON GROUNDS OF IMPROPER VENUE AND WANT OF PERSONAL
JURISDICTION OVER THE DEFENDANTS, THAT COURT FOUND THAT VENUE WAS
IMPROPERLY LAID AS TO TWO OF THE CORPORATE DEFENDANTS BECAUSE THEY WERE
NOT INHABITANTS OF, "FOUND" OR TRANSACTING BUSINESS IN PENNSYLVANIA;
BUT, INSTEAD OF DISMISSING THE ACTION, IT USED ITS AUTHORITY UNDER 28
U.S.C. SEC. 1406(A) TO TRANSFER THE CASE TO THE SOUTHERN DISTRICT OF
NEW YORK, WHERE VENUE WAS PROPER BECAUSE THE DEFENDANTS COULD BE FOUND
AND TRANSACTED BUSINESS THERE AND PERSONAL JURISDICTION OVER THEM COULD
BE OBTAINED BY SERVICE OF PROCESS UNDER SEC. 12.  THESE TWO CORPORATE
DEFENDANTS THEN MOVED THE FEDERAL DISTRICT COURT IN NEW YORK TO DISMISS
THE ACTION ON THE GROUND THAT THE DISTRICT COURT IN PENNSYLVANIA DID
NOT HAVE PERSONAL JURISDICTION OVER THEM AND, THEREFORE, LACKED POWER
UNDER SEC. 1406(A) TO TRANSFER THE ACTION.  HELD:  SECTION 1406(A) IS
NOT LIMITED TO CASES IN WHICH THE TRANSFERRING COURT HAS PERSONAL
JURISDICTION OVER THE DEFENDANTS, AND THE DISTRICT COURT IN
PENNSYLVANIA ACTED WITHIN ITS AUTHORITY.   PP. 464-467. 

GOLDLAWR, INC., V. HEIMAN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS PRIVATE ANTITRUST ACTION FOR TREBLE DAMAGES AND OTHER RELIEF
UNDER SECS. 1 AND 2 OF THE SHERMAN ACT (FN1) AND SEC. 4 OF THE CLAYTON
ACT (FN2) WAS BROUGHT BY THE PETITIONER AGAINST A NUMBER OF DEFENDANTS
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA.  AFTER HEARINGS ON A MOTION TO DISMISS THE ACTION ON
GROUNDS OF IMPROPER VENUE AND LACK OF PERSONAL JURISDICTION OVER THE
DEFENDANTS, THE PENNSYLVANIA DISTRICT COURT AGREED THAT VENUE WAS
IMPROPERLY LAID AS TO TWO OF THE CORPORATE DEFENDANTS (FN3) BECAUSE
THEY WERE NEITHER INHABITANTS OF, "FOUND" NOR TRANSACTING BUSINESS IN
PENNSYLVANIA, THESE BEING THE ALTERNATIVE PREREQUISITES FOR VENUE UNDER
SEC. 12 OF THE CLAYTON ACT.  (FN4)  THAT COURT REFUSED TO DISMISS THE
ACTION AS TO THESE DEFENDANTS, HOWEVER, CHOOSING INSTEAD TO USE ITS
AUTHORITY UNDER 28 U.S.C. SEC. 1406(A) TO TRANSFER IT TO THE SOUTHERN
DISTRICT OF NEW YORK WHERE, BECAUSE THE DEFENDANTS COULD BE FOUND AND
TRANSACTED BUSINESS, VENUE WAS PROPER AND PERSONAL JURISDICTION COULD
BE OBTAINED OVER THEM BY SERVICE OF PROCESS UNDER SEC. 12.  THESE TWO
CORPORATE DEFENDANTS THEN APPEARED IN THE NEW YORK DISTRICT COURT AND
MOVED TO HAVE THE CASE DISMISSED BY THAT COURT ON THE GROUND THAT THE
PENNSYLVANIA DISTRICT COURT HAD NOT HAD PERSONAL JURISDICTION OVER THEM
AND, LACKING SUCH PERSONAL JURISDICTION, IT HAD NOT HAD POWER UNDER
SEC. 1406(A) TO TRANSFER THE ACTION.  (FN5)  THE NEW YORK DISTRICT
COURT GRANTED THIS MOTION ON THE GROUND ASSERTED, (FN6) AND THE COURT
OF APPEALS FOR THE SECOND CIRCUIT, WITH JUDGE HINCKS DISSENTING,
AFFIRMED ON THE SAME GROUND.  (FN7)  BECAUSE THIS DECISION PRESENTED A
CONFLICT WITH THE UNIFORM COURSE OF DECISIONS PREVIOUSLY MADE ON THIS
SAME QUESTION BY OTHER COURTS OF APPEAL, (FN8) WE GRANTED CERTIORARI. 
(FN9) 

TRANSFERRED THIS CASE, 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." 

NOTHING IN THAT LANGUAGE INDICATES THAT THE OPERATION OF THE SECTION
WAS INTENDED TO BE LIMITED TO ACTIONS IN WHICH THE TRANSFERRING COURT
HAS PERSONAL JURISDICTION OVER THE DEFENDANTS.  AND WE CANNOT AGREE
THAT SUCH A RESTRICTIVE INTERPRETATION CAN BE SUPPORTED BY ITS
LEGISLATIVE HISTORY - EITHER THAT RELIED UPON BY THE COURT OF APPEALS
(FN10) OR ANY OTHER THAT HAS BEEN BROUGHT TO OUR ATTENTION.  THE
PROBLEM WHICH GAVE RISE TO THE ENACTMENT OF THE SECTION WAS THAT OF
AVOIDING THE INJUSTICE WHICH HAD OFTEN RESULTED TO PLAINTIFFS FROM
DISMISSAL OF THEIR ACTIONS MERELY BECAUSE THEY HAD MADE AN ERRONEOUS
GUESS WITH REGARD TO THE EXISTENCE OF SOME ELUSIVE FACT OF THE KIND
UPON WHICH VENUE PROVISIONS OFTEN TURN.  INDEED, THIS CASE IS ITSELF A
TYPICAL EXAMPLE OF THE PROBLEM SOUGHT TO BE AVOIDED, FOR DISMISSAL HERE
WOULD HAVE RESULTED IN PLAINTIFF'S LOSING A SUBSTANTIAL PART OF ITS
CAUSE OF ACTION UNDER THE STATUTE OF LIMITATIONS MERELY BECAUSE IT MADE
A MISTAKE IN THINKING THAT THE RESPONDENT CORPORATIONS COULD BE "FOUND"
OR THAT THEY "TRANSACT  ...  BUSINESS" IN THE EASTERN DISTRICT OF
PENNSYLVANIA.  (FN11)  THE LANGUAGE AND HISTORY OF SEC. 1406(A), BOTH
AS ORIGINALLY ENACTED (FN12) AND AS AMENDED IN 1949, (FN13) SHOW A
CONGRESSIONAL PURPOSE TO PROVIDE AS EFFECTIVE A REMEDY AS POSSIBLE TO
AVOID PRECISELY THIS SORT OF INJUSTICE. 

THE LANGUAGE OF SEC. 1406(A) IS AMPLY BROAD ENOUGH TO AUTHORIZE THE
TRANSFER OF CASES, HOWEVER WRONG THE PLAINTIFF MAY HAVE BEEN IN FILING
HIS CASE AS TO VENUE, WHETHER THE COURT IN WHICH IT WAS FILED HAD
PERSONAL JURISDICTION OVER THE DEFENDANTS OR NOT.  THE SECTION IS THUS
IN ACCORD WITH THE GENERAL PURPOSE WHICH HAS PROMPTED MANY OF THE
PROCEDURAL CHANGES OF THE PAST FEW YEARS - THAT OF REMOVING WHATEVER
OBSTACLES MAY IMPEDE AN EXPEDITIOUS AND ORDERLY ADJUDICATION OF CASES
AND CONTROVERSIES ON THEIR MERITS.  WHEN A LAWSUIT IS FILED, THAT
FILING SHOWS A DESIRE ON THE PART OF THE PLAINTIFF TO BEGIN HIS CASE
AND THEREBY TOLL WHATEVER STATUTES OF LIMITATION WOULD OTHERWISE
APPLY.  THE FILING ITSELF SHOWS THE PROPER DILIGENCE ON THE PART OF THE
PLAINTIFF WHICH SUCH STATUTES OF LIMITATION WERE INTENDED TO INSURE. 
IF BY REASON OF THE UNCERTAINTIES OF PROPER VENUE A MISTAKE IS MADE,
CONGRESS, BY THE ENACTMENT OF SEC.  1406(A), RECOGNIZED THAT "THE
INTEREST OF JUSTICE" MAY REQUIRE THAT THE COMPLAINT NOT BE DISMISSED
BUT RATHER THAT IT BE TRANSFERRED IN ORDER THAT THE PLAINTIFF NOT BE
PENALIZED BY WHAT THE LATE JUDGE PARKER APTLY CHARACTERIZED AS "TIME
CONSUMING AND JUSTICE-DEFEATING TECHNICALITIES."  (FN14)  IT WOULD AT
LEAST PARTIALLY FRUSTRATE THIS ENLIGHTENED CONGRESSIONAL OBJECTIVE TO
IMPORT AMBIGUITIES INTO SEC. 1406(A) WHICH DO NOT EXIST IN THE LANGUAGE
CONGRESS USED TO ACHIEVE THE PROCEDURAL REFORM IT DESIRED. 

THE COURT OF APPEALS ERRED IN UPHOLDING THE DISTRICT COURT'S ORDER
DISMISSING THIS ACTION AS TO THESE TWO CORPORATE DEFENDANTS.  THE
JUDGMENT OF THE COURT OF APPEALS IS ACCORDINGLY REVERSED. 

FN1  26 STAT. 209, AS AMENDED, 15 U.S.C. SECS. 1 AND 2. 

FN2  38 STAT. 731, 15 U.S.C. SEC. 15. 

FN3  THE DISTRICT COURT ALSO FOUND VENUE IMPROPER AS TO A NUMBER OF
INDIVIDUAL DEFENDANTS, BUT THAT FACT IS NOT RELEVANT TO ANY ISSUE
PROPERLY BEFORE US.  SEE NOTE 5, INFRA. 

FN4  38 STAT. 736, 15 U.S.C. SEC. 22.  THIS SECTION, WHICH DEALS WITH
BOTH VENUE AND PERSONAL JURISDICTION TO ANTITRUST ACTIONS AGAINST
CORPORATIONS, ALSO PROVIDES THAT PROCESS MAY BE SERVED IN THE DISTRICT
OF WHICH THE CORPORATION "IS AN INHABITANT, OR WHEREVER IT MAY BE
FOUND." 

FN5  THE PENNSYLVANIA DISTRICT COURT ALSO TRANSFERRED THE ACTION
AGAINST THE INDIVIDUAL DEFENDANTS AS TO WHOM VENUE HAD BEEN FOUND
IMPROPER.  ONLY ONE OF THESE, MARCUS HEIMAN, MOVED IN THE NEW YORK
DISTRICT COURT TO HAVE THE ACTION DISMISSED AS TO HIM FOR LACK OF POWER
IN THE TRANSFERRING COURT.  HEIMAN'S MOTION WAS GRANTED ON THIS GROUND
AND ON A SECOND ENTIRELY INDEPENDENT GROUND.  THE COURT OF APPEALS
AFFIRMED THE DISMISSAL AS TO HEIMAN ON BOTH GROUNDS AND THE PETITIONER
DID NOT SEEK CERTIORARI AS TO THE SECOND AND INDEPENDENT GROUND.  THE
WRIT IS THEREFORE DISMISSED AS TO HEIMAN. 

FN6  175 F. SUPP. 793. 

FN7  288 F.2D 579. 

FN8  SEE INTERNATIO-ROTTERDAM, INC., V. THOMSEN, 218 F.2D 514; ORION
SHIPPING & TRADING CO. V. UNITED STATES, 247 F.2D 755; AMERIO CONTACT
PLATE FREEZERS, INC., V. KNOWLES, 107 U.S. APP.  D.C. 81, 274 F.2D 590;
HAYES V. LIVERMONT, 108 U.S. APP. D.C. 43, 279 F.2D 818. 

FN9  368 U.S. 810. 

FN10  SENATE REPORT NO. 303, 81ST CONG., 1ST SESS., DISCUSSED BY THE
COURT BELOW AT 288 F.2D 579, 583. 

FN11  AS ILLUSTRATING THE DIFFICULTIES WHICH MAY ARISE IN DETERMINING
WHERE CORPORATIONS CAN BE FOUND OR TRANSACT BUSINESS, SEE POLIZZI V.
COWLES MAGAZINES, INC., 345 U.S. 663; INTERNATIONAL SHOE CO. V.
WASHINGTON, 326 U.S. 310. 

FN12  62 STAT. 937. 

FN13  63 STAT. 101. 

FN14  INTERNATIO-ROTTERDAM, INC., V. THOMSEN, 218 F.2D 514, 517. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

THE NOTION THAT A DISTRICT COURT MAY DEAL WITH AN IN PERSONAM ACTION
IN SUCH A WAY AS POSSIBLY TO AFFECT A DEFENDANT'S SUBSTANTIVE RIGHTS
WITHOUT FIRST ACQUIRING JURISDICTION OVER HIM IS NOT A FAMILIAR ONE IN
FEDERAL JURISPRUDENCE.  NO ONE SUGGESTS THAT CONGRESS WAS AWARE THAT 28
U.S.C. SEC. 1406(A) MIGHT BE SO USED WHEN IT ENACTED THAT STATUTE.  THE
"INTEREST OF JUSTICE" OF WHICH THE STATUTE SPEAKS AND WHICH THE COURT'S
OPINION EMPHASIZES IN SUPPORT OF ITS CONSTRUCTION OF SEC. 1406(A) IS
ASSUREDLY NOT A ONE-WAY STREET.  AND IT IS INCONGRUOUS TO CONSIDER, AS
THE COURT'S HOLDING WOULD SEEM TO IMPLY, THAT IN THE "INTEREST OF
JUSTICE" CONGRESS SOUGHT IN SEC. 1406(A) TO DEAL WITH THE TRANSFER OF
CASES WHERE BOTH VENUE AND JURISDICTION ARE LACKING IN THE DISTRICT
WHERE THE ACTION IS COMMENCED, WHILE NEGLECTING TO PROVIDE ANY
COMPARABLE ALLEVIATIVE MEASURES FOR THE PLAINTIFF WHO SELECTS A
DISTRICT WHERE VENUE IS PROPER BUT WHERE PERSONAL JURISDICTION CANNOT
BE OBTAINED.* 

*IN AN ORDINARY DIVERSITY SUIT, FOR EXAMPLE, A PLAINTIFF MAY BRING
SUIT IN THE JUDICIAL DISTRICT WHERE HE RESIDES.  28 U.S.C. SEC.
1391(A).  BUT IF HE IS UNABLE TO GET PERSONAL SERVICE ON THE DEFENDANT
IN THE TERRITORY DEFINED BY FED. RULE CIV. PROC. 4(F), HIS SUIT WILL BE
DISMISSED.  SEE ROBERTSON V. RAILROAD LABOR BOARD, 268 U.S. 619; CF.
MISSISSIPPI PUBLISHING CORP. V. MURPHREE, 326 U.S. 438, 442-443.  SINCE
THIS WOULD NOT BE "A CASE LAYING VENUE IN THE WRONG DIVISION OR
DISTRICT," SEC. 1406(A) WOULD BE INAPPLICABLE. 

IN THESE CIRCUMSTANCES I THINK THE MATTER IS BETTER LEFT FOR FURTHER
ACTION BY CONGRESS, PREFERABLY AFTER THE JUDICIAL CONFERENCE OF THE
UNITED STATES HAS EXPRESSED ITS VIEWS ON THE SUBJECT.  CF. MINER V.
ATLASS, 363 U.S. 641, 650-652.  MEANWHILE, SUBSTANTIALLY FOR THE
REASONS ELABORATED IN THE OPINION OF JUDGE MOORE, 288 F.2D 579, I WOULD
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :



DAIRY QUEEN V. WOOD 369 U.S. 469 


NO. 244.  ARGUED FEBRUARY 19-20, 1962 - DECIDED APRIL 30, 1962 -
JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS. 


CLAIMING THAT PETITIONER HAD BREACHED ITS CONTRACT TO PAY $150,000 FOR
THE EXCLUSIVE USE OF THE TRADEMARK "DAIRY QUEEN" IN CERTAIN PORTIONS OF
PENNSYLVANIA, THE OWNERS OF THE TRADEMARK SUED IN A FEDERAL DISTRICT
COURT FOR (1) TEMPORARY AND PERMANENT INJUNCTIONS TO RESTRAIN
PETITIONER FROM ANY FUTURE USE OF OR DEALING IN THE FRANCHISE AND
TRADEMARK, (2) AN ACCOUNTING TO DETERMINE THE EXACT AMOUNT OF MONEY
OWING BY PETITIONER AND A JUDGMENT TO THAT AMOUNT, AND (3) AN
INJUNCTION PENDING ACCOUNTING TO PREVENT PETITIONER FROM COLLECTING ANY
MONEY FROM "DAIRY QUEEN" STORES IN THE TERRITORY.  PETITIONER FILED AN
ANSWER RAISING A NUMBER OF DEFENSES AND MADE A TIMELY DEMAND FOR A
TRIAL BY JURY.  THE DISTRICT COURT STRUCK PETITIONER'S DEMAND FOR A
TRIAL BY JURY, ON THE ALTERNATIVE GROUNDS THAT EITHER THE ACTION WAS
"PURELY EQUITABLE" OR THAT WHATEVER LEGAL ISSUES WERE RAISED WERE
"INCIDENTAL" TO EQUITABLE ISSUES.  THE COURT OF APPEALS DENIED
PETITIONER'S APPLICATION FOR A WRIT OF MANDAMUS TO COMPEL THE DISTRICT
JUDGE TO VACATE HIS ORDER.  HELD:  THE DISTRICT JUDGE ERRED IN REFUSING
PETITIONER'S DEMAND FOR A TRIAL BY JURY OF THE FACTUAL ISSUES RELATED
TO THE QUESTION WHETHER THERE HAD BEEN A BREACH OF CONTRACT OR A
TRADEMARK INFRINGEMENT, AND THE COURT OF APPEALS SHOULD HAVE CORRECTED
THAT ERROR BY GRANTING THE PETITION FOR MANDAMUS.  PP. 470-480. 

(A)  WHERE BOTH LEGAL AND EQUITABLE ISSUES ARE PRESENTED IN A SINGLE
CASE, ANY LEGAL ISSUES FOR WHICH A TRIAL BY JURY IS TIMELY AND PROPERLY
DEMANDED MUST BE SUBMITTED TO A JURY.  BEACON THEATRES, INC., V.
WESTOVER, 359 U.S. 500.  PP. 470-473. 

(B)  INSOFAR AS THE COMPLAINT IN THIS CASE REQUESTS A MONEY JUDGMENT,
IT PRESENTS A CLAIM WHICH IS UNQUESTIONABLY LEGAL.  PP. 473-477. 

(C)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT THE
COMPLAINT IS CAST IN TERMS OF AN "ACCOUNTING" RATHER THAN IN TERMS OF
AN ACTION FOR "DEBT" OR "DAMAGES."  PP. 477-479. 

(D)  THE LEGAL CLAIM HERE INVOLVED WAS NOT RENDERED "PURELY
EQUITABLE" BY THE NATURE OF THE DEFENSES INTERPOSED BY PETITIONER.  P.
479. 

DAIRY QUEEN, INC., V. WOOD, U.S. DISTRICT JUDGE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA GRANTED A MOTION TO STRIKE PETITIONER'S DEMAND FOR A TRIAL
BY JURY IN AN ACTION NOW PENDING BEFORE IT ON THE ALTERNATIVE GROUNDS
THAT EITHER THE ACTION WAS "PURELY EQUITABLE" OR, IF NOT PURELY
EQUITABLE, WHATEVER LEGAL ISSUES THAT WERE RAISED WERE "INCIDENTAL" TO
EQUITABLE ISSUES, AND, IN EITHER CASE, NO RIGHT TO TRIAL BY JURY
EXISTED.  (FN1)  THE PETITIONER THEN SOUGHT MANDAMUS IN THE COURT OF
APPEALS FOR THE THIRD CIRCUIT TO COMPEL THE DISTRICT JUDGE TO VACATE
THIS ORDER.  WHEN THAT COURT DENIED THIS REQUEST WITHOUT OPINION, WE
GRANTED CERTIORARI BECAUSE THE ACTION OF THE COURT OF APPEALS SEEMED
INCONSISTENT WITH PROTECTIONS ALREADY CLEARLY RECOGNIZED FOR THE
IMPORTANT CONSTITUTIONAL RIGHT TO TRIAL BY JURY IN OUR PREVIOUS
DECISIONS.  (FN2) 

AT THE OUTSET, WE MAY DISPOSE OF ONE OF THE GROUNDS UPON WHICH THE
TRIAL COURT ACTED IN STRIKING THE DEMAND FOR TRIAL BY JURY - THAT BASED
UPON THE VIEW THAT THE RIGHT TO TRIAL BY JURY MAY BE LOST AS TO LEGAL
ISSUES WHERE THOSE ISSUES ARE CHARACTERIZED AS "INCIDENTAL" TO
EQUITABLE ISSUES - FOR OUR PREVIOUS DECISIONS MAKE IT PLAIN THAT NO
SUCH RULE MAY BE APPLIED IN THE FEDERAL COURTS.  IN SCOTT V. NEELY,
DECIDED IN 1891, THIS COURT HELD THAT A COURT OF EQUITY COULD NOT EVEN
TAKE JURISDICTION OF A SUIT "IN WHICH A CLAIM PROPERLY COGNIZABLE ONLY
AT LAW IS UNITED IN THE SAME PLEADINGS WITH A CLAIM FOR EQUITABLE
RELIEF."  (FN3)  THAT HOLDING, WHICH WAS BASED UPON BOTH THE HISTORICAL
SEPARATION BETWEEN LAW AND EQUITY AND THE DUTY OF THE COURT TO INSURE
"THAT THE RIGHT TO A TRIAL BY A JURY IN THE LEGAL ACTION MAY BE
PRESERVED INTACT," (FN4) CREATED CONSIDERABLE INCONVENIENCE IN THAT IT
NECESSITATED TWO SEPARATE TRIALS IN THE SAME CASE WHENEVER THAT CASE
CONTAINED BOTH LEGAL AND EQUITABLE CLAIMS.  CONSEQUENTLY, WHEN THE
PROCEDURE IN THE FEDERAL COURTS WAS MODERNIZED BY THE ADOPTION OF THE
FEDERAL RULES OF CIVIL PROCEDURE IN 1938, IT WAS DEEMED ADVISABLE TO
ABANDON THAT PART OF THE HOLDING OF SCOTT V. NEELY WHICH RESTED UPON
THE SEPARATION OF LAW AND EQUITY AND TO PERMIT THE JOINDER OF LEGAL AND
EQUITABLE CLAIMS IN A SINGLE ACTION.  THUS RULE 18(A) PROVIDES THAT A
PLAINTIFF "MAY JOIN EITHER AS INDEPENDENT OR AS ALTERNATE CLAIMS AS
MANY CLAIMS EITHER LEGAL OR EQUITABLE OR BOTH AS HE MAY HAVE AGAINST AN
OPPOSING PARTY."  AND RULE 18(B) PROVIDES:  "WHENEVER A CLAIM IS ONE
HERETOFORE COGNIZABLE ONLY AFTER ANOTHER CLAIM HAS BEEN PROSECUTED TO A
CONCLUSION, THE TWO CLAIMS MAY BE JOINED IN A SINGLE ACTION; BUT THE
COURT SHALL GRANT RELIEF IN THAT ACTION ONLY IN ACCORDANCE WITH THE
RELATIVE SUBSTANTIVE RIGHTS OF THE PARTIES.  IN PARTICULAR, A PLAINTIFF
MAY STATE A CLAIM FOR MONEY AND A CLAIM TO HAVE SET ASIDE A CONVEYANCE
FRAUDULENT AS TO HIM, WITHOUT FIRST HAVING OBTAINED A JUDGMENT
ESTABLISHING THE CLAIM FOR MONEY." 

THE FEDERAL RULES DID NOT, HOWEVER, PURPORT TO CHANGE THE BASIC
HOLDING OF SCOTT V. NEELY THAT THE RIGHT TO TRIAL BY JURY OF LEGAL
CLAIMS MUST BE PRESERVED.  (FN5)  QUITE THE CONTRARY, RULE 38(A)
EXPRESSLY REAFFIRMS THAT CONSTITUTIONAL PRINCIPLE, DECLARING:  "THE
RIGHT OF TRIAL BY JURY AS DECLARED BY THE SEVENTH AMENDMENT TO THE
CONSTITUTION OR AS GIVEN BY A STATUTE OF THE UNITED STATES SHALL BE
PRESERVED TO THE PARTIES INVIOLATE."  NONETHELESS, AFTER THE ADOPTION
OF THE FEDERAL RULES, ATTEMPTS WERE MADE INDIRECTLY TO UNDERCUT THAT
RIGHT BY HAVING FEDERAL COURTS IN WHICH CASES INVOLVING BOTH LEGAL AND
EQUITABLE CLAIMS WERE FILED DECIDE THE EQUITABLE CLAIM FIRST.  THE
RESULT OF THIS PROCEDURE IN THOSE CASES IN WHICH IT WAS FOLLOWED WAS
THAT ANY ISSUE COMMON TO BOTH THE LEGAL AND EQUITABLE CLAIMS WAS
FINALLY DETERMINED BY THE COURT AND THE PARTY SEEKING TRIAL BY JURY ON
THE LEGAL CLAIM WAS DEPRIVED OF THAT RIGHT AS TO THESE COMMON ISSUES. 
THIS PROCEDURE FINALLY CAME BEFORE US IN BEACON THEATRES, INC., V.
WESTOVER, (FN6) A CASE WHICH, LIKE THIS ONE, AROSE FROM THE DENIAL OF A
PETITION FOR MANDAMUS TO COMPEL A DISTRICT JUDGE TO VACATE HIS ORDER
STRIKING A DEMAND FOR TRIAL BY JURY. 

OUR DECISION REVERSING THAT CASE NOT ONLY EMPHASIZES THE
RESPONSIBILITY OF THE FEDERAL COURTS OF APPEALS TO GRANT MANDAMUS WHERE
NECESSARY TO PROTECT THE CONSTITUTIONAL RIGHT TO TRIAL BY JURY BUT ALSO
LIMITS THE ISSUES OPEN FOR DETERMINATION HERE BY DEFINING THE
PROTECTION TO WHICH THAT RIGHT IS ENTITLED IN CASES INVOLVING BOTH
LEGAL AND EQUITABLE CLAIMS.  THE HOLDING IN BEACON THEATRES WAS THAT
WHERE BOTH LEGAL AND EQUITABLE ISSUES ARE PRESENTED IN A SINGLE CASE,
"ONLY UNDER THE MOST IMPERATIVE CIRCUMSTANCES, CIRCUMSTANCES WHICH IN
VIEW OF THE FLEXIBLE PROCEDURES OF THE FEDERAL RULES WE CANNOT NOW
ANTICIPATE, CAN THE RIGHT TO A JURY TRIAL OF LEGAL ISSUES BE LOST
THROUGH PRIOR DETERMINATION OF EQUITABLE CLAIMS."  (FN7)  THAT HOLDING,
OF COURSE, APPLIES WHETHER THE TRIAL JUDGE CHOOSES TO CHARACTERIZE THE
LEGAL ISSUES PRESENTED AS "INCIDENTAL" TO EQUITABLE ISSUES OR NOT. 
(FN8)  CONSEQUENTLY, IN A CASE SUCH AS THIS WHERE THERE CANNOT EVEN BE
A CONTENTION OF SUCH "IMPERATIVE CIRCUMSTANCES," BEACON THEATRES
REQUIRES THAT ANY LEGAL ISSUES FOR WHICH A TRIAL BY JURY IS TIMELY AND
PROPERLY DEMANDED BE SUBMITTED TO A JURY.  THERE BEING NO QUESTION OF
THE TIMELINESS OR CORRECTNESS OF THE DEMAND INVOLVED HERE, THE SOLE
QUESTION WHICH WE MUST DECIDE IS WHETHER THE ACTION NOW PENDING BEFORE
THE DISTRICT COURT CONTAINS LEGAL ISSUES. 

THE DISTRICT COURT PROCEEDING ARISES OUT OF A CONTROVERSY BETWEEN
PETITIONER AND THE RESPONDENT OWNERS OF THE TRADEMARK "DAIRY QUEEN"
WITH REGARD TO A WRITTEN LICENSING CONTRACT MADE BY THEM IN DECEMBER
1949, UNDER WHICH PETITIONER AGREED TO PAY SOME $150,000 FOR THE
EXCLUSIVE RIGHT TO USE THAT TRADEMARK IN CERTAIN PORTIONS OF
PENNSYLVANIA.  (FN9)  THE TERMS OF THE CONTRACT PROVIDED FOR A SMALL
INITIAL PAYMENT WITH THE REMAINING PAYMENTS TO BE MADE AT THE RATE OF
50% OF ALL AMOUNTS RECEIVED BY PETITIONER ON SALES AND FRANCHISES TO
DEAL WITH THE TRADEMARK AND, IN ORDER TO MAKE CERTAIN THAT THE $150,000
PAYMENT WOULD BE COMPLETED WITHIN A SPECIFIED PERIOD OF TIME, FURTHER
PROVIDED FOR MINIMUM ANNUAL PAYMENTS REGARDLESS OF PETITIONER'S
RECEIPTS.  IN AUGUST 1960, THE RESPONDENTS WROTE PETITIONER A LETTER IN
WHICH THEY CLAIMED THAT PETITIONER HAD COMMITTED "A MATERIAL BREACH OF
THAT CONTRACT" BY DEFAULTING ON THE CONTRACT'S PAYMENT PROVISIONS AND
NOTIFIED PETITIONER OF THE TERMINATION OF THE CONTRACT AND THE
CANCELLATION OF PETITIONER'S RIGHT TO USE THE TRADEMARK UNLESS THIS
CLAIMED DEFAULT WAS REMEDIED IMMEDIATELY.  (FN10)  WHEN PETITIONER
CONTINUED TO DEAL WITH THE TRADEMARK DESPITE THE NOTICE OF TERMINATION,
THE RESPONDENTS BROUGHT AN ACTION BASED UPON THEIR VIEW THAT A MATERIAL
BREACH OF CONTRACT HAD OCCURRED. 

THE COMPLAINT FILED IN THE DISTRICT COURT ALLEGED, AMONG OTHER
THINGS, THAT PETITIONER HAD "CEASED PAYING  ...  AS REQUIRED IN THE
CONTRACT;" THAT THE DEFAULT "UNDER THE SAID CONTRACT  ...  WAS IN
EXCESS OF $60,000.00;" THAT THIS DEFAULT CONSTITUTED A "MATERIAL
BREACH" OF THAT CONTRACT; THAT PETITIONER HAD BEEN NOTIFIED BY LETTER
THAT ITS FAILURE TO PAY AS ALLEGED MADE IT GUILTY OF A MATERIAL BREACH
OF CONTRACT WHICH IF NOT "CURED" WOULD RESULT IN AN IMMEDIATE
CANCELLATION OF THE CONTRACT; THAT THE BREACH HAD NOT BEEN CURED BUT
THAT PETITIONER WAS CONTESTING THE CANCELLATION AND CONTINUING TO
CONDUCT BUSINESS AS AN AUTHORIZED DEALER; THAT TO CONTINUE SUCH
BUSINESS AFTER THE CANCELLATION OF THE CONTRACT CONSTITUTED AN
INFRINGEMENT OF THE RESPONDENT'S TRADEMARK; THAT PETITIONER'S FINANCIAL
CONDITION WAS UNSTABLE; AND THAT BECAUSE OF THE FOREGOING ALLEGATIONS,
RESPONDENTS WERE THREATENED WITH IRREPARABLE INJURY FOR WHICH THEY HAD
NO ADEUQATE REMEDY AT LAW.  THE COMPLAINT THEN PRAYED FOR BOTH
TEMPORARY AND PERMANENT RELIEF, INCLUDING:  (1) TEMPORARY AND PERMANENT
INJUNCTIONS TO RESTRAIN PETITIONER FROM ANY FUTURE USE OF OR DEALING IN
THE FRANCHISE AND THE TRADEMARK; (2) AN ACCOUNTING TO DETERMINE THE
EXACT AMOUNT OF MONEY OWING BY PETITIONER AND A JUDGMENT FOR THAT
AMOUNT; AND (3) AN INJUNCTION PENDING ACCOUNTING TO PREVENT PETITIONER
FROM COLLECTING ANY MONEY FROM "DAIRY QUEEN" STORES IN THE TERRITORY. 

IN ITS ANSWER TO THIS COMPLAINT, PETITIONER RAISED A NUMBER OF
DEFENSES, INCLUDING:  (1) A DENIAL THAT THERE HAD BEEN ANY BREACH OF
CONTRACT, APPARENTLY BASED CHIEFLY UPON ITS ALLEGATION THAT IN JANUARY
1955 THE PARTIES HAD ENTERED INTO AN ORAL AGREEMENT MODIFYING THE
ORIGINAL WRITTEN CONTRACT BY REMOVING THE PROVISION REQUIRING MINIMUM
ANNUAL PAYMENTS REGARDLESS OF PETITIONER'S RECEIPTS THUS LEAVING
PETITIONER'S ONLY OBLIGATION THAT OF TURNING OVER 50% OF ALL ITS
RECEIPTS; (2) LACHES AND ESTOPPEL ARISING FROM RESPONDENT'S FAILURE TO
ASSERT THEIR CLAIM PROMPTLY, THUS PERMITTING PETITIONER TO EXPEND LARGE
AMOUNTS OF MONEY IN THE DEVELOPMENT OF ITS RIGHT TO USE THE TRADEMARK;
AND (3) ALLEGED VIOLATIONS OF THE ANTITRUST LAWS BY RESPONDENTS IN
CONNECTION WITH THEIR DEALINGS WITH THE TRADEMARK.  PETITIONER INDORSED
UPON THIS ANSWER A DEMAND FOR TRAIL BY JURY IN ACCORDANCE WITH RULE
38(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  (FN11) 

PETITIONER'S CONTENTION, AS SET FORTH IN ITS PETITION FOR MANDAMUS TO
THE COURT OF APPEALS AND REITERATED IN ITS BRIEFS BEFORE THIS COURT, IS
THAT INSOFAR AS THE COMPLAINT REQUESTS A MONEY JUDGMENT IT PRESENTS A
CLAIM WHICH IS UNQUESTIONABLY LEGAL.  WE AGREE WITH THAT CONTENTION. 
THE MOST NATURAL CONSTRUCTION OF THE RESPONDENTS' CLAIM FOR A MONEY
JUDGMENT WOULD SEEM TO BE THAT IT IS A CLAIM THAT THEY ARE ENTITLED TO
RECOVER WHATEVER WAS OWED THEM UNDER THE CONTRACT AS OF THE DATE OF ITS
PURPORTED TERMINATION PLUS DAMAGES FOR INFRINGEMENT OF THEIR TRADEMARK
SINCE THAT DATE.  ALTERNATIVELY, THE COMPLAINT COULD BE CONSTRUED TO
SET FORTH A FULL CLAIM BASED UPON BOTH OF THESE THEORIES - THAT IS, A
CLAIM THAT THE RESPONDENTS WERE ENTITLED TO RECOVER BOTH THE DEBT DUE
UNDER THE CONTRACT AND DAMAGES FOR TRADEMARK INFRINGEMENT FOR THE
ENTIRE PERIOD OF THE ALLEGED BREACH INCLUDING THAT BEFORE THE
TERMINATION OF THE CONTRACT.  (FN12)  OR IT MIGHT POSSIBLY BE CONSTRUED
TO SET FORTH A CLAIM FOR RECOVERY BASED COMPLETELY ON EITHER ONE OF
THESE TWO THEORIES - THAT IS, A CLAIM BASED SOLELY UPON THE CONTRACT
FOR THE ENTIRE PERIOD BOTH BEFORE AND AFTER THE ATTEMPTED TERMINATION
ON THE THEORY THAT THE TERMINATION, HAVING BEEN IGNORED, WAS OF NO
CONSEQUENCE, OR A CLAIM BASED SOLEY UPON THE CHARGE OF INFRINGEMENT ON
THE THEORY THAT THE CONTRACT, HAVING BEEN BREACHED, COULD NOT BE USED
AS A DEFENSE TO AN INFRINGEMENT ACTION EVEN FOR THE PERIOD PRIOR TO ITS
TERMINATION.  (FN13)  WE FIND IT UNNECESSARY TO RESOLVE THIS AMBIGUITY
IN THE RESPONDENTS' COMPLAINT BECAUSE WE THINK IT PLAIN THAT THEIR
CLAIM FOR A MONEY JUDGMENT IS A CLAIM WHOLLY LEGAL IN ITS NATURE
HOWEVER THE COMPLAINT IS CONSTRUED.  AS AN ACTION ON A DEBT ALLEGEDLY
DUE UNDER A CONTRACT, IT WOULD BE DIFFICULT TO CONCEIVE OF AN ACTION OF
A MORE TRADITIONALLY LEGAL CHARACTER.  (FN14)  AND AS AN ACTION FOR
DAMAGES BASED UPON A CHARGE OF TRADEMARK INFRINGEMENT, IT WOULD BE NO
LESS SUBJECT TO COGNIZANCE BY A COURT OF LAW.  (FN15) 

THE RESPONDENTS' CONTENTION THAT THIS MONEY CLAIM IS "PURELY
EQUITABLE" IS BASED PRIMARILY UPON THE FACT THAT THEIR COMPLAINT IS
CAST IN TERMS OF AN "ACCOUNTING," RATHER THAN IN TERMS OF AN ACTION FOR
"DEBT' OR "DAMAGES."  BUT THE CONSTITUTIONAL RIGHT TO TRIAL BY JURY
CANNOT BE MADE TO DEPEND UPON THE CHOICE OF WORDS USED IN THE
PLEADINGS.  THE NECESSARY PREREQUISITE TO THE RIGHT TO MAINTAIN A SUIT
FOR AN EQUITABLE ACCOUNTING, LIKE ALL OTHER EQUITABLE REMEDIES, IS, AS
WE POINTED OUT IN BEACON THEATRES, THE ABSENCE OF AN ADEQUATE REMEDY AT
LAW.  (FN16)  CONSEQUENTLY, IN ORDER TO MAINTAIN SUCH A SUIT ON A CAUSE
OF ACTION COGNIZABLE AT LAW, AS THIS ONE IS, THE PLAINTIFF MUST BE ABLE
TO SHOW THAT THE "ACCOUNTS BETWEEN THE PARTIES" ARE OF SUCH A
"COMPLICATED NATURE" THAT ONLY A COURT OF EQUITY CAN SATISFACTORILY
UNRAVEL THEM.  (FN17)  IN VIEW OF THE POWERS GIVEN TO DISTRICT COURTS
BY FEDERAL RULE OF CIVIL PROCEDURE 53(B) TO APPOINT MASTERS TO ASSIST
THE JURY IN THOSE EXCEPTIONAL CASES WHERE THE LEGAL ISSUES ARE TOO
COMPLICATED FOR THE JURY ADEQUATELY TO HANDLE ALONE, (FN18) THE BURDEN
OF SUCH A SHOWING IS CONSIDERABLY INCREASED AND IT WILL INDEED BE A
RARE CASE IN WHICH IT CAN BE MET.  (FN19)  BUT BE THAT AS IT MAY, THIS
IS CERTAINLY NOT SUCH A CASE.  A JURY, UNDER PROPER INSTRUCTIONS FROM
THE COURT, COULD READILY DETERMINE THE RECOVERY, IF ANY, TO BE HAD
HERE, WHETHER THE THEORY FINALLY SETTLED UPON IS THAT OF BREACH OF
CONTRACT, THAT OF TRADEMARK INFRINGEMENT, OR ANY COMBINATION OF THE
TWO.  THE LEGAL REMEDY CANNOT BE CHARACTERIZED AS INADEQUATE MERELY
BECAUSE THE MEASURE OF DAMAGES MAY NECESSITATE A LOOK INTO PETITIONER'S
BUSINESS RECORDS. 

NOR IS THE LEGAL CLAIM HERE RENDERED "PURELY EQUITABLE" BY THE NATURE
OF THE DEFENSES INTERPOSED BY PETITIONER.  PETITIONER'S PRIMARY DEFENSE
TO THE CHARGE OF BREACH OF CONTRACT - THAT IS, THAT THE CONTRACT WAS
MODIFIED BY A SUBSEQUENT ORAL AGREEMENT - PRESENTS A PURELY LEGAL
QUESTION HAVING NOTHING WHATEVER TO DO EITHER WITH NOVATION, AS THE
DISTRICT JUDGE SUGGESTED, OR REFORMATION, AS SUGGESTED BY THE
RESPONDENTS HERE.  SUCH A DEFENSE GOES TO THE QUESTION OF JUST WHAT,
UNDER THE LAW, THE CONTRACT BETWEEN THE RESPONDENTS AND PETITIONER IS
AND, IN AN ACTION TO COLLECT A DEBT FOR BREACH OF A CONTRACT BETWEEN
THESE PARTIES, PETITIONER HAS A RIGHT TO HAVE THE JURY DETERMINE NOT
ONLY WHETHER THE CONTRACT HAS BEEN BREACHED AND THE EXTENT OF THE
DAMAGES IF ANY BUT ALSO JUST WHAT THE CONTRACT IS.    WE CONCLUDE
THEREFORE THAT THE DISTRICT JUDGE ERRED IN REFUSING TO GRANT
PETITIONER'S DEMAND FOR A TRIAL BY JURY ON THE FACTUAL ISSUES RELATED
TO THE QUESTION OF WHETHER THERE HAS BEEN A BREACH OF CONTRACT.  SINCE
THESE ISSUES ARE COMMON WITH THOSE UPON WHICH RESPONDENTS' CLAIM TO
EQUITABLE RELIEF IS BASED, THE LEGAL CLAIMS INVOLVED IN THE ACTION MUST
BE DETERMINED PRIOR TO ANY FINAL COURT DETERMINATION OF RESPONDENTS'
EQUITABLE CLAIMS.  (FN20)  THE COURT OF APPEALS SHOULD HAVE CORRECTED
THE ERROR OF THE DISTRICT JUDGE BY GRANTING THE PETITION FOR MANDAMUS. 
THE JUDGMENT IS THEREFORE REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  MCCULLOUGH V. DAIRY QUEEN, INC., 194 F. SUPP. 686. 

FN2  368 U.S. 874. 

FN3  140 U.S. 106, 117.  SEE ALSO CATES V. ALLEN, 149 U.S. 451, IN
WHICH THE PRINCIPLES EXPRESSED AND APPLIED IN SCOTT V. NEELY WERE
EXPLICITLY REAFFIRMED. 

FN4  ID., AT 110. 

FN5  "SUBDIVISION (B) OF RULE 18 DOES NOT DISTURB THE DOCTRINE OF
THOSE CASES (SCOTT V. NEELY AND CATES V. ALLEN) BUT IS EXPRESSLY
BOTTOMED UPON THEIR PRINCIPLES.  THIS IS TRUE BECAUSE THE FEDERAL RULES
ABOLISH THE DISTINCTION BETWEEN LAW AND EQUITY, PERMIT THE JOINDER OF
LEGAL AND EQUITABLE CLAIMS, AND SAFEGUARD THE RIGHT TO JURY TRIAL OF
LEGAL ISSUES."  3 MOORE, FEDERAL PRACTICE, 1831-1832. 

FN6  359 U.S. 500. 

FN7  ID., AT 510-511. 

FN8  "IT IS THEREFORE IMMATERIAL THAT THE CASE AT BAR CONTAINS A
STRONGER BASIS FOR EQUITABLE RELIEF THAN WAS PRESENT IN BEACON
THEATRES.  IT WOULD MAKE NO DIFFERENCE IF THE EQUITABLE CAUSE CLEARLY
OUTWEIGHED THE LEGAL CAUSE SO THAT THE BASIC ISSUE OF THE CASE TAKEN AS
A WHOLE IS EQUITABLE.  AS LONG AS ANY LEGAL CAUSE IS INVOLVED THE JURY
RIGHTS IT CREATES CONTROL.  THIS IS THE TEACHING OF BEACON THEATRES, AS
WE CONSTRUE IT."  THERMO-STITCH, INC., V. CHEMI-CORD PROCESSING CORP.,
294 F.2D 486, 491. 

FN9  THERE ARE TWO GROUPS OF RESPONDENTS IN THIS CASE IN ADDITION TO
THE DISTRICT JUDGE WHO IS FORMALLY A RESPONDENT BY REASON OF THE
PROCEDURAL POSTURE OF THE CASE.  H.A. MCCULLOUGH AND H.F. MCCULLOUGH, A
PARTNERSHIP DOING BUSINESS AS MCCULLOUGH'S DAIRY QUEEN, ARE THE OWNERS
OF THE TRADEMARK AND ARE ENTITLED UNDER THE CONTRACT TO PAYMENT FOR ITS
USE.  B.F. MYERS, R.J. RYDEEN, M.E. MONTGOMERY, AND H.S. DALE ARE THE
ORIGINAL LICENSEES UNDER THE CONTRACT THROUGH WHOM PETITIONER OBTAINED
ITS RIGHTS BY ASSIGNMENT.  THIS LATTER GROUP OF RESPONDENTS JOINED IN
THE ACTION AGAINST PETITIONER ON THE GROUNDS (1) THAT THEY WOULD BE
RESPONSIBLE TO THE TRADEMARK OWNERS IF PETITIONER DEFAULTED ON ITS
OBLIGATIONS UNDER THE CONTRACT, AND (2) THAT THEY ARE THEMSELVES
ENTITLED TO CERTAIN ROYALTIES UNDER THE ASSIGNMENT ARRANGEMENT.  SINCE
THE PORTION OF THE COMPLAINT INVOLVING THIS LATTER GROUP RAISES NO
ISSUES RELEVANT TO THE QUESTION TO BE DETERMINED HERE WHICH DIFFER FROM
THOSE RAISED IN THAT PART OF THE COMPLAINT INVOLVING THE TRADEMARK
OWNERS, THE DISCUSSION CAN BE RESTRICTED TO THE ISSUES RAISED BY THE
TRADEMARK OWNERS AND "RESPONDENTS" AS USED IN THIS OPINION WILL REFER
ONLY TO THAT GROUP. 

FN10  THE FULL TEXT OF THE LETTER SENT TO PETITIONER IS AS FOLLOWS: 

"THIS LETTER IS TO ADVISE YOU THAT YOUR FAILURE TO PAY THE AMOUNTS
REQUIRED IN YOUR CONTRACT WITH MCCULLOUGH'S DAIRY QUEEN FOR THE 'DIARY
QUEEN' FRANCHISE FOR THE STATE OF PENNSYLVANIA, AS CALLED FOR IN YOUR
CONTRACT WITH YOUR ASSIGNORS, CONSTITUTES IN OUR OPINION A MATERIAL
BREACH OF THAT CONTRACT. 

"THIS WILL ADVISE YOU THAT UNLESS THIS MATERIAL BREACH IS COMPLETELY
SATISFIED FOR THE AMOUNT DUE AND OWING, YOUR FRANCHISE FOR 'DAIRY
QUEEN' IN PENNSYLVANIA IS HEREBY CANCELLED. 

"COPIES OF THIS LETTER ARE BEING SENT TO YOUR ASSIGNORS." 

FN11  "ANY PARTY MAY DEMAND A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT BY A JURY BY SERVING UPON THE OTHER PARTIES A DEMAND THEREFOR IN
WRITING AT ANY TIME AFTER THE COMMENCEMENT OF THE ACTION AND NOT LATER
THAN 10 DAYS AFTER THE SERVICE OF THE LAST PLEADING DIRECTED TO SUCH
ISSUE.  SUCH DEMAND MAY BE INDORSED UPON A PLEADING OF THE PARTY." 

FN12  THIS SEEMS TO BE THE CONSTRUCTION GIVEN THE COMPLAINT BY THE
DISTRICT JUDGE IN PASSING ON THE MOTION TO STRIKE PETITIONER'S JURY
DEMAND.  SEE 194 F. SUPP., AT 687-688. 

FN13 THIS LAST POSSIBLE CONSTRUCTION OF THE COMPLAINT, THOUGH
ACCEPTED AS THE CORRECT ONE IN THE CONCURRING OPINION, ACTUALLY SEEMS
THE LEAST LIKELY OF ALL.  FOR IT SEEMS PLAIN THAT IRRESPECTIVE OF
WHATEVER ELSE THE COMPLAINT SOUGHT, IT DID SEEK A JUDGMENT FOR THE SOME
$60,000 ALLEGEDLY OWING UNDER THE CONTRACT.  CERTAINLY, THE DISTRICT
JUDGE HAD NO DOUBT THAT THIS WAS THE CASE: "INCIDENTAL TO THIS RELIEF,
THE COMPLAINT ALSO DEMANDS THE $60,000 NOW ALLEGEDLY DUE AND OWING
PLAINTIFFS UNDER THE AFORESAID CONTRACT."  194 F. SUPP., AT 687. 

FN14  "IN THE CASE BEFORE US THE DEBT DUE THE COMPLAINANTS WAS IN NO
RESPECT DIFFERENT FROM ANY OTHER DEBT UPON CONTRACT; IT WAS THE SUBJECT
OF A LEGAL ACTION ONLY, IN WHICH THE DEFENDANTS WERE ENTITLED TO A JURY
TRIAL IN THE FEDERAL COURTS."  SCOTT V. NEELY, 140 U.S. 106, 110.  SEE
ALSO THOMPSON V. RAILROAD COMPANIES, 6 WALL.  134. 

FN15  CF., E.G., ARNSTEIN V. PORTER, 154 F.2D 464; BRUCKMAN V.
HOLLZER, 152 F.2D 730. 

FN16  359 U.S., AT 506-510.  SEE ALSO THOMPSON V. RAILROAD COMPANIES,
6 WALL.  134, 137; SCOTT V. NEELY, 140 U.S. 106, 110. 

FN17  KIRBY V. LAKE SHORE & MICHIGAN SOUTHERN R. CO., 120 U.S. 130,
134. 

FN18  EVEN THIS LIMITED INROAD UPON THE RIGHT TO TRIAL BY JURY
"'SHOULD SELDOM BE MADE, AND IF AT ALL ONLY WHEN UNUSUAL CIRCUMSTANCES
EXIST.'"  LA BUY V. HOWES LEATHER CO., 352 U.S. 249, 258.  SEE ALSO IN
RE WATKINS, 271 F.2D 771. 

FN19  IT WAS SETTLED IN BEACON THEATRES THAT PROCEDURAL CHANGES WHICH
REMOVE THE INADEQUACY OF A REMEDY AT LAW MAY SHARPLY DIMINISH THE SCOPE
OF TRADITIONAL EQUITABLE REMEDIES BY MAKING THEM UNNECESSARY IN MANY
CASES.  "THUS, THE JUSTIFICATION FOR EQUITY'S DECIDING LEGAL ISSUES
ONCE IT OBTAINS JURISDICTION, AND REFUSING TO DISMISS A CASE, MERELY
BECAUSE SUBSEQUENTLY A LEGAL REMEDY BECOMES AVAILABLE, MUST BE RE
EVALUATED IN THE LIGHT OF THE LIBERAL JOINDER PROVISIONS OF THE FEDERAL
RULES WHICH ALLOW LEGAL AND EQUITABLE CAUSES TO BE BROUGHT AND RESOLVED
IN ONE CIVIL ACTION.   SIMILARLY THE NEED FOR, AND THEREFORE, THE
AVAILABILITY OF SUCH EQUITABLE REMEDIES AS BILLS OF PEACE, QUIA TIMET
AND INJUNCTION MUST BE RECONSIDERED IN VIEW OF THE EXISTENCE OF THE
DECLARATORY JUDGMENT ACT AS WELL AS THE LIBERAL JOINDER PROVISION OF
THE RULES."  359 U.S., AT 509. 

FN20  THIS DOES NOT, OF COURSE, INTERFERE WITH THE DISTRICT COURT'S
POWER TO GRANT TEMPORARY RELIEF PENDING A FINAL ADJUDICATION ON THE
MERITS.  SUCH TEMPORARY RELIEF HAS ALREADY BEEN GRANTED IN THIS CASE
(SEE MCCULLOUGH V. DAIRY QUEEN, INC., 290 F.2D 871) AND IS NO PART OF
THE ISSUES BEFORE THIS COURT. 

MR. JUSTICE STEWART CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

I AM DISPOSED TO ACCEPT THE VIEW, STRONGLY PRESSED AT THE BAR, THAT
THIS COMPLAINT SEEKS AN ACCOUNTING FOR ALLEGED TRADEMARK INFRINGEMENT,
RATHER THAN CONTRACT DAMAGES.  EVEN THOUGH THIS LEAVES THE COMPLAINT AS
FORMALLY ASKING ONLY FOR EQUITABLE RELIEF,* THIS DOES NOT END THE
INQUIRY.  THE FACT THAT AN "ACCOUNTING" IS SOUGHT IS NOT OF ITSELF
DISPOSITIVE OF THE JURY TRIAL ISSUE.  TO RENDER THIS ASPECT OF THE
COMPLAINT TRULY "EQUITABLE" IT MUST APPEAR THAT THE SUBSTANTIVE CLAIM
IS ONE COGNIZABLE ONLY IN EQUITY OR THAT THE "ACCOUNTS BETWEEN THE
PARTIES" ARE OF SUCH A "COMPLICATED NATURE" THAT THEY CAN BE
SATISFACTORILY UNRAVELED ONLY BY A COURT OF EQUITY.  KIRBY V. LAKE
SHORE & MICHIGAN SOUTHERN R. CO., 120 U.S. 130, 134.  SEE 5 MOORE,
FEDERAL PRACTICE (1951), 198-202.  IT IS MANIFEST FROM THE FACE OF THE
COMPLAINT THAT THE "ACCOUNTING" SOUGHT IN THIS INSTANCE IS NOT OF
EITHER VARIETY.  A JURY, UNDER PROPER INSTRUCTIONS FROM THE COURT,
COULD READILY CALCULATE THE DAMAGES FLOWING FROM THIS ALLEGED TRADEMARK
INFRINGEMENT, JUST AS COURTS OF LAW OFTEN DO IN COPYRIGHT AND PATENT
CASES.  CF., E.G., HARTELL V. TILGHMAN, 99 U.S. 547, 555; ARNSTEIN V.
PORTER, 154 F.2D 464; BRUCKMAN V. HOLLZER, 152 F.2D 730. 

*EXCEPT AS TO THE DAMAGE CLAIM THERE IS NO DISPUTE BUT THAT THE
COMPLAINT SEEKS ONLY EQUITABLE RELIEF. 

CONSEQUENTLY WHAT IS INVOLVED IN THIS CASE IS NOTHING MORE THAN A
JOINDER IN ONE COMPLAINT OF PRAYERS FOR BOTH LEGAL AND EQUITABLE
RELIEF.  IN SUCH CIRCUMSTANCES, UNDER PRINCIPLES LONG SINCE
ESTABLISHED, SCOTT V. NEELY, 140 U.S. 106, 110, THE PETITIONER CANNOT
BE DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL ON THE "LEGAL"
CLAIM CONTAINED IN THE COMPLAINT. 

ON THIS BASIS I CONCUR IN THE JUDGMENT OF THE COURT. 
..END :















CALIFORNIA V. FEDERAL POWER COMMISSION 369 U.S. 482 


NO. 187.  ARGUED MARCH 1, 1962 - DECIDED APRIL 30, 1962 - 111 U.S. APP.
D.C. 226, 296 F.2D 348, REVERSED. 


ONE NATURAL GAS COMPANY ACQUIRED NEARLY ALL OF THE STOCK OF ANOTHER,
AND THE FEDERAL GOVERNMENT COMMENCED AN ACTION IN A FEDERAL DISTRICT
COURT TO HAVE THE ACQUISITION OF STOCK DECLARED TO BE IN VIOLATION OF
SEC. 7 OF THE CLAYTON ACT AND TO REQUIRE DIVESTITURE.  SHORTLY
THEREAFTER, THE COMPANY WHICH HAD ACQUIRED THE STOCK APPLIED TO THE
FEDERAL POWER COMMISSION UNDER SEC. 7 OF THE NATURAL GAS ACT FOR
AUTHORITY TO MERGE THE ASSETS OF THE TWO COMPANIES.  THE COMMISSION
AUTHORIZED THE MERGER ASSETS WHILE THE ANTITRUST ACTION WAS STILL
PENDING IN THE DISTRICT COURT.  THE COURT OF APPEALS SUSTAINED THE
COMMISSION'S ACTION.  HELD:  THE COMMISSION SHOULD NOT HAVE PROCEEDED
TO A DECISION ON THE MERITS OF THE MERGER APPLICATION WHEN THERE WAS
PENDING IN THE COURTS A SUIT CHALLENGING THE VALIDITY OF THAT
TRANSACTION UNDER THE ANTITRUST LAWS.  IT SHOULD HAVE AWAITED THE
DECISION OF THE COURTS.  PP. 483-490. 

CALIFORNIA V. FEDERAL POWER COMMISSION ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BRENNAN. 

EL PASO NATURAL GAS COMPANY FIRST ACQUIRED THE STOCK OF THE PACIFIC
NORTHWEST PIPELINE CORP. AND THEN APPLIED TO THE FEDERAL POWER
COMMISSION FOR AUTHORITY TO ACQUIRE THE ASSETS PURSUANT TO SEC. 7 OF
THE NATURAL GAS ACT, 52 STAT. 825, 15 U.S.C. SEC. 717FC).  THIS
APPLICATION WAS DATED AUGUST 7, 1957.  PRIOR THERETO, ON JULY 22, 1957,
THE FEDERAL GOVERNMENT COMMENCED AN ACTION AGAINST EL PASO AND PACIFIC
NORTHWEST, ALLEGING THAT EL PASO'S ACQUISITION OF THE STOCK OF PACIFIC
NORTHWEST VIOLATED SEC. 7 OF THE CLAYTON ACT, (FN1) 38 STAT. 731, AS
AMENDED, 64 STAT. 1125, 15 U.S.C. SEC. 18.  ON SEPTEMBER 30, 1957, EL
PASO AND PACIFIC NORTHWEST FILED A MOTION TO DISMISS THE ANTITRUST SUIT
OR TO STAY IT, PENDING COMPLETION OF THE PROCEEDINGS BEFORE THE
COMMISSION.  ON OCTOBER 21, 1957, THAT MOTION WAS DENIED AFTER HEARING;
AND WE DENIED CERTIORARI.  355 U.S. 950. 

IN MAY AND JUNE 1958, THE DEPARTMENT OF JUSTICE WROTE FOUR LETTERS TO
THE COMMISSION, ASKING THAT THE PROCEEDING BE STAYED PENDING THE
OUTCOME OF THE ANTITRUST SUIT.  ON JULY 29, 1958, THE DEPARTMENT OF
JUSTICE WAS ADVISED BY THE COMMISSION THAT IT WOULD NOT STAY ITS
PROCEEDINGS.  THE COMMISSION INVITED THE ANTITRUST DIVISION OF THE
DEPARTMENT TO PARTICIPATE IN THE ADMINISTRATIVE PROCEEDINGS; BUT IT DID
NOT DO SO. 

THE HEARINGS BEFORE THE COMMISSION STARTED SEPTEMBER 17, 1958.  ON
OCTOBER 2, 1958, EL PASO AND PACIFIC NORTHWEST MOVED IN THE DISTRICT
COURT FOR A CONTINUANCE OF THE ANTITRUST SUIT.  ON OCTOBER 6, 1958, THE
DEPARTMENT OF JUSTICE ASKED THE COMMISSION TO POSTPONE ITS HEARING,
PENDING FINAL OUTCOME OF THE ANTITRUST SUIT WHICH HAD THEN BEEN SET FOR
TRIAL NOVEMBER 17, 1958.  ON OCTOBER 7, 1958, THE COMMISSION WROTE THE
DISTRICT COURT THAT IF THE COURT DENIED EL PASO AND PACIFIC NORTHWEST'S
MOTION FOR A CONTINUANCE AND PROCEEDED WITH THE ANTITRUST TRIAL, THE
COMMISSION WOULD CONTINUE ITS MERGER HEARINGS TO A DATE THAT WOULD NOT
CONFLICT WITH THE TRIAL DATE OF THE ANTITRUST CASE, BUT THAT IF THE
COURT GRANTED THE MOTION FOR CONTINUANCE, THE COMMISSION WOULD PROCEED
WITH ITS HEARING.  ON OCTOBER 13, 1958, THE DISTRICT COURT CONTINUED
THE ANTITRUST SUIT UNTIL THE FINAL DECISION IN THE ADMINISTRATIVE
PROCEEDINGS.  THE LATTER PROCEEDINGS WERE CONCLUDED, THE COMMISSION
AUTHORIZING THE MERGER ON DECEMBER 23, 1959.  22 F.P.C. 1091, 23 F.P.C.
350.  THE MERGER WAS CONSUMMATED DECEMBER 31, 1959. 

PETITIONER INTERVENED IN THE ADMINISTRATIVE PROCEEDINGS AUGUST 27,
1957, AND OBTAINED REVIEW BY THE COURT OF APPEALS, WHICH AFFIRMED THE
COMMISSION (111 U.S. APP. D.C. 226, 296 F.2D 348), JUDGE FAHY
DISSENTING.  WE GRANTED CERTIORARI, 368 U.S. 810. 

EVIDENCE OF ANTITRUST VIOLATIONS IS PLAINLY RELEVANT IN MERGER
APPLICATIONS, FOR PART OF THE CONTENT OF "PUBLIC CONVENIENCE AND
NECESSITY" AS USED IN SEC. 7 OF THE NATURAL GAS ACT IS FOUND IN THE
LAWS OF THE UNITED STATES.  CITY OF PITTSBURGH V. FEDERAL POWER
COMMISSION, 99 U.S. APP. D.C. 113, 237 F.2D 741. 

IMMUNITY FROM THE ANTITRUST LAWS IS NOT LIGHTLY IMPLIED.  THE
EXEMPTION OF AGRICULTURAL COOPERATIVES FROM THE ANTITRUST LAWS GRANTED
BY SEC. 6 OF THE CLAYTON ACT AND SEC. 1 AND SEC. 2 OF THE CAPPER
VOLSTEAD ACT OF 1922 BECAME RELEVANT IN MILK PRODUCERS ASSN. V. UNITED
STATES, 362 U.S. 458.  WHILE SEC. 7 OF THE CLAYTON ACT GAVE IMMUNITY TO
"TRANSACTIONS DULY CONSUMMATED PURSUANT TO AUTHORITY GIVEN BY  ...  THE
SECRETARY OF AGRICULTURE UNDER ANY STATUTORY PROVISION VESTING SUCH
POWER IN SUCH  ...  SECRETARY," WE HELD THAT THE ONLY AUTHORITY OF THE
SECRETARY WAS TO APPROVE "MARKETING AGREEMENTS" (ID., 469-470) AND NOT
OTHER TYPES OF AGREEMENTS OR RESTRAINTS, TYPICALLY COVERED BY THE
ANTITRUST LAWS.  ACCORDINGLY, WE HELD THAT THE DISTRICT COURT WAS
AUTHORIZED TO DIRECT THE COOPERATIVE TO DISPOSE AS A UNIT OF THE ASSETS
OF AN INDEPENDENT PRODUCER THAT HAD BEEN ACQUIRED TO STIFLE COMPETITION
AND RESTRAIN TRADE.  WE COULD NOT ASSUME THAT CONGRESS, HAVING GRANTED
ONLY A LIMITED EXEMPTION FROM THE ANTITRUST LAWS, NONETHELESS GRANTED
AN OVERALL INCLUSIVE ONE.  SEE UNITED STATES V. BORDEN CO., 308 U.S.
188, 198-202.  "WHEN THERE ARE TWO ACTS UPON THE SAME SUBJECT, THE RULE
IS TO GIVE EFFECT TO BOTH IF POSSIBLE."  ID., AT 198.  HERE, AS IN
UNITED STATES V. R.C.A., 358 U.S. 334, WHILE "ANTITRUST CONSIDERATIONS"
ARE RELEVANT TO THE ISSUE OF "PUBLIC INTEREST, CONVENIENCE, AND
NECESSITY" (ID., AT 351), THERE IS NO "PERVASIVE REGULATORY SCHEME"
(IBID.) INCLUDING THE ANTITRUST LAWS THAT HAS BEEN ENTRUSTED TO THE
COMMISSION.  AND SEE NATIONAL BROADCASTING CO. V. UNITED STATES, 319
U.S. 190, 223.  UNDER THE INTERSTATE COMMERCE ACT, MERGERS OF CARRIERS
THAT ARE APPROVED HAVE AN ANTITRUST IMMUNITY, AS SEC. 5(11) OF THAT ACT
SPECIFICALLY PROVIDES THAT THE CARRIERS INVOLVED "SHALL BE AND THEY ARE
HEREBY RELIEVED FROM THE OPERATION OF THE ANTITRUST LAWS  ...  ."  SEE
MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67. 

THERE IS NO COMPARABLE PROVISION UNDER THE NATURAL GAS ACT.  SECTION
7 OF THE CLAYTON ACT - WHICH PROHIBITS STOCK ACQUISITIONS "WHERE IN ANY
LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH
ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY" - CONTAINS A PROVISO THAT "NOTHING CONTAINED IN THIS
AUTHORITY GIVEN BY THE  ...  FEDERAL POWER COMMISSION  ...  UNDER ANY
STATUTORY PROVISION VESTING SUCH POWER IN SUCH COMMISSION  ...  ."  THE
WORDS "TRANSACTIONS DULY CONSUMMATED PURSUANT TO AUTHORITY" GIVEN THE
COMMISSION "UNDER ANY STATUTORY PROVISON VESTING SUCH POWER" IN IT ARE
PLAINLY NOT A GRANT OF POWER TO ADJUDICATE ANTITRUST ISSUES.  CONGRESS
MADE CLEAR THAT BY THIS PROVISO IN SEC. 7 OF THE CLAYTON ACT "  ...  IT
IS NOT INTENDED THAT  ...  ANY  ... AGENCY" MENTIONED "SHALL BE GRANTED
ANY AUTHORITY OR POWERS WHICH IT DOES NOT ALREADY POSSESS."  S. REP.
NO. 1775, 81ST CONG., 2D SESS., P. 7.  THE COMMISSION'S STANDARD, SET
FORTH IN SEC. 7 OF THE NATURAL GAS ACT, IS THAT THE ACQUISITION,
MERGER, ETC., WILL SERVE THE "PUBLIC CONVENIENCE AND NECESSITY."  IF
EXISTING NATURAL GAS COMPANIES VIOLATE THE ANTITRUST LAWS, THE
COMMISSION IS ADVISED BY SEC. 20(A) TO "TRANSMIT SUCH EVIDENCE" TO THE
ATTORNEY GENERAL "WHO, IN HIS DISCRETION, MAY INSTITUTE THE NECESSARY
CRIMINAL PROCEEDINGS."  OTHER ADMINISTRATIVE AGENCIES ARE AUTHORIZED TO
ENFORCE SEC. 7 OF THE CLAYTON ACT WHEN IT COMES TO CERTAIN CLASSES OF
COMPANIES OR PERSONS; (FN2) BUT THE FEDERAL POWER COMMISSION IS NOT
INCLUDED IN THE LIST. 

WE DO NOT DECIDE WHETHER IN THIS CASE THERE WERE ANY VIOLATIONS OF
THE ANTITRUST LAWS.  WE RULE ONLY ON ONE SELECT ISSUE AND THAT IS:
SHOULD THE COMMISSION PROCEED TO A DECISION ON THE MERITS OF A MERGER
APPLICATION WHEN THERE IS PENDING IN THE COURTS A SUIT CHALLENGING THE
VALIDITY OF THAT TRANSACTION UNDER THE ANTITRUST LAWS?  WE THINK NOT. 
WE THINK THE COMMISSION IN THOSE CIRCUMSTANCES SHOULD AWAIT THE
DECISION OF THE COURTS. 

THE COMMISSION CONSIDERED THE INTERPLAY BETWEEN SEC. 7 OF THE CLAYTON
ACT AND SEC. 7 OF THE NATURAL GAS ACT AND SAID: 

"SECTION 7 OF THE CLAYTON ACT, UNDER WHICH THE ANTITRUST SUIT WAS
BROUGHT, PROHIBITS THE ACQUISITION BY ONE CORPORATION OF THE STOCK OR
ASSETS OF ANOTHER CORPORATION WHERE 'THE EFFECT OF SUCH ACQUISITION MAY
BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A
MONOPOLY.'  EXEMPT, HOWEVER, ARE TRANSACTIONS CONSUMMATED PURSUANT TO
COMMISSION AUTHORITY.  THIS SHOWS, REASONS THE PRESIDING EXAMINER, THAT
CONGRESS PLACED RELIANCE ON THE COMMISSION NOT TO APPROVE AN
ACQUISITION OF ASSETS IN VIOLATION OF THE INJUNCTION OF THE CLAYTON
ACT, UNLESS IN THE CAREFULLY EXERCISED JUDGEMENT OF THE COMMISSION, THE
ACQUISITION WOULD NEVERTHELESS BE IN THE PUBLIC INTEREST.   WHAT WE ARE
ATTEMPTING TO ARRIVE AT IS THE PUBLIC CONVENIENCE AND NECESSITY.  IN
REACHING OUR DETERMINATION, WE DO NOT HAVE AUTHORITY TO DETERMINE
WHETHER A GIVEN TRANSACTION IS IN VIOLATION OF THE CLAYTON ACT, BUT WE
ARE REQUIRED TO CONSIDER THE BEARING OF THE POLICY OF THE ANTITRUST
LAWS ON THE PUBLIC CONVENIENCE AND NECESSITY.  CITY OF PITTSBURGH V.
F.P.C., 237 F.2D 741, 754 (CADC).  WITH THE PRESIDING EXAMINER, WE FIND
THAT ANY LESSENING OF COMPETITION WHETHER IN THE CONSUMER MARKETS OR
THE PRODUCING FIELDS, DOES NOT PREVENT OUR APPROVING THE MERGER BECAUSE
THERE ARE OTHER FACTORS WHICH OUTWEIGH THE ELIMINATION OF PACIFIC AS A
COMPETITOR.  IN ANY CASE, IT APPEARS THAT ANY LESSENING OF COMPETITION
IS NOT SUBSTANTIAL."  22 F.P.C. 1091, 1095. 

APART FROM THE FACT THAT THE COMMISSION DID UNDERTAKE TO MAKE A
FINDING RESERVED TO THE COURTS BY SEC. 7 OF THE CLAYTON ACT, (FN3)
THERE ARE PRACTICAL REASONS WHY IT SHOULD HAVE HELD ITS HAND UNTIL THE
COURTS HAD ACTED. 

ONE IS THAT IF THE COMMISSION APPROVES THE TRANSACTION AND THE COURTS
IN THE ANTITRUST SUIT LATER HOLD IT TO BE ILLEGAL, AN UNSCRAMBLING IS
NECESSARY.  MILK PRODUCERS ASSN. V. UNTIED STATES, SUPRA. THUS A
NEEDLESS WASTE OF TIME AND MONEY MAY BE INVOLVED.  ALSO THESE
UNSCRAMBLING PROCESSES OFTEN RAISE COMPLICATED AND PERPLEXING PROBLEMS
ON TAX MATTERS AND OTHERWISE, AS OUR RECENT DECISION IN UNITED STATES
V. DU PONT & CO., 353 U.S. 586; 366 U.S. 316, SHOWS.  (FN4)  SUCH
COMPLEXITIES ARE INHERENT IN THE SITUATION, AS APPROVAL OF THE
TRANSACTION BY THE COMMISSION WOULD BE NO BAR TO THE ANTITRUST SUIT. 
SEE UNITED STATES V. R.C.A., SUPRA. 

ANOTHER PRACTICAL REASON IS THAT A TRANSACTION CONSUMMATED UNDER THE
AEGIS OF THE COMMISSION AS BEING A MATTER OF "PUBLIC CONVENIENCE AND
NECESSITY" IS BOUND TO CARRY MOMENTUM INTO THE ANTITRUST SUIT.  THE
VERY PROSPECT OF UNDOING WHAT WAS DONE RAISES A POWERFUL INFLUENCE IN
THE ANTITRUST LITIGATION, AS UNITED STATES V. DU PONT & CO., SUPRA,
ILLUSTRATES. 

THE ORDERLY PROCEDURE IS FOR THE COMMISSION TO AWAIT DECISION IN THE
ANTITRUST SUIT BEFORE TAKING ACTION. 

STOCK ACQUISITIONS HAVING A PRESCRIBED EFFECT.  SECTION 7 OF THE
NATURAL GAS ACT CONFERS JURISDICTION ON THE COMMISSION OVER THE
ACQUISITION OF ASSETS OF NATURAL GAS COMPANIES, (FN5) NOT OVER STOCK
ACQUISITIONS IN THEM.  HAD THE COMMISSION STAYED ITS HAND AND HAD THE
COURTS FOUND THE STOCK ACQUISITION UNLAWFUL, THE ENTIRE TRANSACTION
WOULD HAVE BEEN SET ASIDE IN LIMINE.  HAD THE COURTS FOUND THE STOCK
ACQUISITION LAWFUL, PRESUMABLY NO PROBLEMS UNDER SEC. 7 OF THE CLAYTON
ACT WOULD HAVE REMAINED.  WHEN THE COMMISSION PROCEEDS IN THE FACE OF A
PENDING BUT UNDECIDED ANTITRUST SUIT AND APPROVES A MERGER THAT HAS
BEEN PRECEDED, AS THIS ONE WAS, BY A STOCK ACQUISITION, IT IN SUBSTANCE
TREATS THE ENTIRE RELATION OF THE COMPANIES - FROM THE ACQUISITION OF
STOCK TO THE MERGER - AS AN INTEGRATED TRANSACTION.  IF THAT
ADMINISTRATIVE ACTION WERE APPROVED, THE COMMISSION WOULD BE ALLOWED TO
DO BY INDIRECTION WHAT IT HAS NO JURISDICTION TO DO DIRECTLY. 

IT IS NOT FOR US TO SAY THAT THE COMPLEMENTARY LEGISLATIVE POLICES
REFLECTED IN SEC. 7 OF THE CLAYTON ACT ON THE ONE HAND AND IN SEC. 7 OF
THE NATURAL GAS ACT ON THE OTHER SHOULD BE BETTER ACCOMMODATED.  OUR
FUNCTION IS TO SEE THAT THE POLICY ENTRUSTED TO THE COURTS IS NOT
FRUSTRATED BY AN ADMINISTRATIVE AGENCY.  WHERE THE PRIMARY JURISDICTION
IS IN THE AGENCY, COURTS WITHHOLD ACTION UNTIL THE AGENCY HAS ACTED. 
TEXAS & PAC. R. CO. V. ABILENE OIL CO., 204 U.S. 426.  THE CONVERSE
SHOULD ALSO BE TRUE, LEST THE ANTITRUST POLICY WHOSE ENFORCEMENT
CONGRESS IN THIS SITUATION HAS ENTRUSTED TO THE COURTS IS IN PRACTICAL
EFFECT TAKEN OVER BY THE FEDERAL POWER COMMISSION.  MOREOVER, AS NOTED,
THE COMMISSION IN HOLDING THAT "ANY LESSENING OF COMPETITION IS NOT
SUBSTANTIAL" WAS IN THE DOMAIN OF THE CLAYTON ACT, A DOMAIN WHICH IS
ENTRUSTED TO THE COURT IN WHICH THE ANTITRUST SUIT WAS PENDING. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  SECTION 7 OF THE CLAYTON ACT PROVIDES IN RELEVANT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
AND NO CORPORATION SUBJECT TO THE JURISDICTION OF THE FEDERAL TRADE
COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY LINE OF COMMERCE IN
ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH ACQUISITION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY. 

"NO CORPORATION SHALL ACQUIRE, DIRECTLY OR INDIRECTLY, THE WHOLE OR
ANY PART OF THE STOCK OR OTHER SHARE CAPITAL AND NO CORPORATION SUBJECT
TO THE JURISDICTION OF THE FEDERAL TRADE COMMISSION SHALL ACQUIRE THE
WHOLE OR ANY PART OF THE ASSETS OF ONE OR MORE CORPORATIONS ENGAGED IN
COMMERCE, WHERE IN ANY LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY,
THE EFFECT OF SUCH ACQUISITION, OF SUCH STOCKS OR ASSETS, OR OF THE USE
OF SUCH STOCK BY THE VOTING OR GRANTING OR PROXIES OR OTHERWISE, MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO CREATE A MONOPOLY." 
FN2  SECTION 11 OF THE CLAYTON ACT, 15 U.S.C. SEC. 21, VESTS
AUTHORITY TO ENFORCE COMPLIANCE WITH SEC. 7 BY THE PERSONS SUBJECT
THERETO: 

"  ...  IN THE INTERSTATE COMMERCE COMMISSION WHERE APPLICABLE TO
COMMON CARRIERS SUBJECT TO THE INTERSTATE COMMERCE ACT, AS AMENDED; IN
THE FEDERAL COMMUNICATIONS COMMISSION WHERE APPLICABLE TO COMMON
CARRIERS ENGAGED IN WIRE OR RADIO COMMUNICATION OR RADIO TRANSMISSION
OF ENERGY; IN THE CIVIL AERONAUTICS BOARD WHERE APPLICABLE TO AIR
CARRIERS AND FOREIGN AIR CARRIERS SUBJECT TO THE CIVIL AERONAUTICS ACT
OF 1938; IN THE FEDERAL RESERVE BOARD WHERE APPLICABLE TO BANKS,
BANKING ASSOCIATIONS, AND TRUST COMPANIES; AND IN THE FEDERAL TRADE
COMMISSION WHERE APPLICABLE TO ALL OTHER CHARACTER OF COMMERCE TO BE
EXERCISED AS FOLLOWS:  ...  " 

FN3  WHERE "THE EFFECT OF SUCH ACQUISITION MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION."  SECTION 7, SUPRA, NOTE 1. 

FN4  IN THAT CASE, WHICH ALSO WAS UNDER SEC. 7 OF THE CLAYTON ACT, WE
SAID:  "SECTION 7 IS DESIGNED TO ARREST IN ITS INCIPIENCY NOT ONLY THE
SUBSTANTIAL LESSENING OF COMPETITION FROM THE ACQUISITION BY ONE
CORPORATION OF THE WHOLE OR ANY PART OF THE STOCK OF A COMPETING
CORPORATION, BUT ALSO TO ARREST IN THEIR INCIPIENCY RESTRAINTS OR
MONOPOLIES IN A RELEVANT MARKET WHICH, AS A REASONABLE PROBABILITY,
APPEAR AT THE TIME OF SUIT LIKELY TO RESULT FROM THE ACQUISITION BY ONE
CORPORATION OF ALL OR ANY PART OF THE STOCK OF ANY OTHER CORPORATION." 
353 U.S., AT 589.  AS TO THE REMEDY WE STATED IN UNITED STATES V. DU
PONT & CO., 366 U.S., AT 334:  "WE THINK THE PUBLIC IS ENTITLED TO THE
SURER, CLEANER REMEDY OF DIVESTITURE.  THE SAME RESULT WOULD FOLLOW
EVEN IF WE WERE IN DOUBT.  FOR IT IS WELL SETTLED THAT ONCE THE
GOVERNMENT HAS SUCCESSFULLY BORNE THE CONSIDERABLE BURDEN OF
ESTABLISHING A VIOLATION OF LAW, ALL DOUBTS AS TO THE REMEDY ARE TO BE
RESOLVED IN ITS FAVOR." 

FN5  SECTION 7(C) PROVIDES IN RELEVANT PART: 

"NO NATURAL-GAS COMPANY OR PERSON WHICH WILL BE A NATURAL-GAS COMPANY
UPON COMPLETION OF ANY PROPOSED CONSTRUCTION OR EXTENSION SHALL ENGAGE
IN THE TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO THE
JURISDICTION OF THE COMMISSION, OR UNDERTAKE THE CONSTRUCTION OR
EXTENSION OF ANY FACILITIES THEREFOR, OR ACQUIRE OR OPERATE ANY SUCH
FACILITIES OR EXTENSIONS THEREOF, UNLESS THERE IS IN FORCE WITH RESPECT
TO SUCH NATURAL-GAS COMPANY A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY ISSUED BY THE COMMISSION AUTHORIZING SUCH ACTS OR
OPERATIONS." 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

IN THIS CASE ORIGINATING IN THE FEDERAL POWER COMMISSION, THE COURT
TODAY ANNOUNCES A NEW AND SURPRISING ANTITRUST PROCEDURAL RULE:  IF THE
COMMISSION IS ASKED TO "PROCEED TO A DECISION ON THE MERITS OF A MERGER
APPLICATION WHEN THERE IS PENDING IN THE COURTS A SUIT CHALLENGING THE
VALIDITY OF THAT MERGER AND ITS ANTECEDENT TRANSACTIONS UNDER THE
ANTITRUST LAWS," THE COMMISSION MUST ABSTAIN FROM A DETERMINATION AND
"AWAIT DECISION IN THE ANTITRUST SUIT BEFORE TAKING ACTION."  (ANTE,
PP. 487, 489.) 

THE HOLDING DOES NOT TURN ON ANY FACTS OR CIRCUMSTANCES WHICH MAY BE
SAID TO BE PECULIAR TO THIS PARTICULAR CASE.  IT IS NOT LIMITED TO
FEDERAL POWER COMMISSION PROCEEDINGS.  WITHOUT ADVERTING TO ANY LEGAL
PRINCIPLE OR STATUTE TO SUPPORT ITS DECISION, THE COURT APPEARS TO LAY
DOWN A PERVASIVE RULE, BORN SOLELY OF ITS OWN ABSTRACT NOTIONS OF WHAT
"ORDERLY PROCEDURE" REQUIRES, THAT SEEMINGLY WILL HENCEFORTH GOVERN
EVERY AGENCY ACTION INVOLVING MATTERS WITH RESPECT TO WHICH THE
ANTITRUST LAWS ARE APPLICABLE AND ANTITRUST LITIGATION IS THEN PENDING
IN THE COURTS. 

I CANNOT SUBSCRIBE TO A DECISION WHICH BROADLY WORKS SUCH HAVOC WITH
THE PROPER RELATIONSHIP BETWEEN THE ADMINISTRATIVE AND JUDICIAL
FUNCTIONS IN MATTERS OF THIS KIND.  THE DECISION, ON THE ONE HAND, IN
EFFECT TRANSFERS TO THE ANTITRUST DIVISION OF THE DEPARTMENT OF JUSTICE
REGULATORY FUNCTIONS ENTRUSTED TO ADMINISTRATIVE AGENCIES, AND ON THE
OTHER HAND DEPRIVES THE COURTS IN GOVERNMENT ANTITRUST LITIGATION OF
THE AUTHORITY GIVEN THEM BY STATUTE TO DETERMINE WHETHER OR NOT
INTERLOCUTORY RELIEF IS NECESSARY OR APPROPRIATE.  WHAT THIS NEW RULE
ENTAILS IS ILLUSTRATED BY THIS CASE:  A BUSINESS TRANSACTION OF GREAT
MAGNITUDE AND IMPORTANCE, WHICH THE FEDERAL POWER COMMISSION HAS FOUND
TO BE IN THE PUBLIC INTEREST, IS, AT LEAST FOR THE TIME BEING, SET FOR
NAUGHT, WITHOUT THE SLIGHTEST INQUIRY INTO WHETHER THE ANTITRUST
CHARGES LEVELED AGAINST IT ARE WEIGHTY OR NOT.  THE COURT'S ACTION IS
THE MORE UNUSUAL BECAUSE IT IS TAKEN (1) DESPITE THE ANTITRUST COURT'S
DENIAL OF INTERLOCUTORY RELIEF WHEN SUCH RELIEF WAS BELATEDLY SOUGHT BY
THE GOVERNMENT; (2) IN THE FACE OF THE CONSIDERED JUDGMENT OF THE
SOLICITOR GENERAL, REPRESENTING THE PUBLIC INTERESTS RESPECTIVELY
INVOLVED IN THE ADMINISTRATIVE AND ANTITRUST PROCEEDINGS, THAT
DETERMINATION OF THE ULTIMATE EFFECT OF THE COMMISSION'S ORDER SHOULD
BE LEFT TO ABIDE THE EVENT OF THE ANTITRUST CASE, AND THAT MEANWHILE
SUCH ORDER SHOULD BE ALLOWED TO STAND; AND (3) AT THE INSTANCE ONLY OF
AN INTERVENOR IN THE COMMISSION'S PROCEEDING WHICH WAS NOT EVEN A PARTY
TO THE GOVERNMENT'S ANTITRUST SUIT. 

THE UNDISCRIMINATING NATURE AND REACH OF THIS DECISION BECOME
APPARENT WHEN ATTENTION IS FOCUSED ON THE PROCEDURAL EVENTS OCCURRING
PRIOR TO THE ORDER OF THE COMMISSION WHICH IS HERE UNDER ATTACK.  ON
JULY 22, 1957, THE DEPARTMENT OF JUSTICE INSTITUTED A CIVIL ACTION IN
THE UNITED STATES DISTRICT COURT IN UTAH AGAINST THE EL PASO NATURAL
GAS COMPANY AND THE PACIFIC NORTHWEST PIPELINE COMPANY, SEEKING TO
RESTRAIN AN ALLEGED VIOLATION OF SEC. 7 OF THE CLAYTON ACT.  THIS
VIOLATION WAS SAID TO HAVE OCCURRED WHEN, BEGINNING IN JANUARY 1957, EL
PASO EMBARKED ON A PROGRAM OF ACQUIRING NEARLY ALL OF PACIFIC'S
OUTSTANDING COMMON STOCK.  THE COMPLAINT ASKED THAT THE PURCHASE BE
DECLARED TO BE A VIOLATION OF SEC. 7 OF THE CLAYTON ACT AND THAT EL
PASO BE DIRECTED TO DIVEST ITSELF OF PACIFIC'S STOCK.  NO INTERLOCUTORY
RELIEF APPEARS TO HAVE BEEN REQUESTED. 

ON AUGUST 7, 1957, EL PASO FILED WITH THE FEDERAL POWER COMMISSION
ITS APPLICATION FOR AUTHORIZATION TO MERGE PACIFIC'S ASSETS WITH ITS
OWN.  DESPITE THIS ANNOUNCED INTENTION FURTHER TO INTERMINGLE THE
AFFAIRS OF THE TWO CORPORATIONS, THE GOVERNMENT DID NOT SEEK TEMPORARY
RELIEF FROM THE DISTRICT COURT IN UTAH.  EL PASO, ON THE OTHER HAND,
CONTENDED THAT "PRIMARY JURISDICTION" WITH REGARD TO THE MERGER RESIDED
WITH THE COMMISSION AND SOUGHT TO HAVE THE ANTITRUST ACTION STAYED. 
ITS MOTION WAS DENIED BY THE DISTRICT COURT, AND ON MARCH 3, 1958, WE
DENIED LEAVE TO FILE A PETITION FOR COMMON-LAW CERTIORARI TO THAT
DECISION.  355 U.S. 950. 

WHEN THE CASE WAS RETURNED TO THE DISTRICT COURT THE GOVERNMENT AGAIN
MADE NO EFFORT TO OBTAIN FROM THAT COURT AN ORDER MAINTAINING THE
STATUS QUO PENDING THE OUTCOME OF THE SUIT.  INSTEAD, THE ASSISTANT
ATTORNEY GENERAL IN CHARGE OF THE ANTITRUST DIVISION SUGGESTED TO THE
COMMISSION THAT IT STAY ITS OWN PROCEEDINGS UNTIL THE ANTITRUST SUIT
HAD TERMINATED.  WHEN THIS REQUEST WAS REJECTED BY THE COMMISSION, THE
ANTITRUST DIVISION WITHDREW FROM THE COMMISSION PROCEEDINGS DESPITE AN
EXPRESS INVITATION FROM THE COMMISSION THAT IT PARTICIPATE. 

HEARINGS BEFORE THE COMMISSION'S EXAMINER WERE SCHEDULED TO BEGIN ON
SEPTEMBER 17, 1958, AND THE TRIAL OF THE ANTITRUST SUIT IN THE DISTRICT
COURT WAS SET FOR NOVEMBER 17, 1958.  AT A HEARING ON SEVERAL PRETRIAL
MATTERS HELD IN THE DISTRICT COURT ON SEPTEMBER 5 AND 6, THE
GOVERNMENT, FOR THE FIRST TIME, MOVED FOR A TEMPORARY INJUNCTION TO
RESTRAIN THE ASSET MERGER EVEN IF THE COMMISSION'S APPROVAL WERE
FORTHCOMING.  (FN1)  THAT MOTION WAS DENIED AND NOT RENEWED
THEREAFTER.  THE COMMISSION'S HEARINGS BEGAN ON SEPTEMBER 17 AND WERE
RECESSED ON SEPTEMBER 26 UNTIL NOVEMBER 12. 

EL PASO AGAIN MOVED IN THE DISTRICT COURT FOR A CONTINUANCE OF THE
ANTITRUST TRIAL UNTIL AFTER THE COMMISSION HAD PASSED ON THE MERGER
APPLICATION, AND THE GOVERNMENT ONCE MORE ASKED THE COMMISSION TO STAY
ITS PROCEEDINGS PENDING THE OUTCOME OF THE ANTITRUST CASE.  WHILE
NOTING THAT THE GOVERNMENT HAD REFUSED THE COMMISSION'S INVITATION TO
INTERVENE IN THE MERGER PROCEEDINGS, THE COMMISSION AGREED TO DEFER TO
THE DISTRICT COURT.  IT NOTIFIED THE COURT THAT IF EL PASO'S MOTION FOR
A CONTINUANCE OF THE TRIAL WERE DENIED, THE COMMISSION WOULD CONTINUE
ITS MERGER PROCEEDING TO A LATER DATE.  ON OCTOBER 13, 1958, THE
DISTRICT COURT ISSUED AN ORDER GRANTING EL PASO'S MOTION AND CONTINUED
THE ANTITRUST TRIAL "UNTIL THE FINAL DETERMINATION BY THE FEDERAL POWER
COMMISSION OF THE APPLICATIONS NOW PENDING BEFORE IT."  THE GOVERNMENT
HAS NEVER SOUGHT TO REVIEW THIS ORDER BY MANDAMUS OR BY ANY OTHER
AVAILABLE MEANS.  THE COMMISSION SUBSEQUENTLY HELD ITS HEARINGS AND
AUTHORIZED THE MERGER OF EL PASO AND PACIFIC IN AN ORDER DATED DECEMBER
23, 1959.  IT IS THAT ORDER WHICH THE COURT TODAY IN EFFECT HOLDS TO
HAVE BEEN ENTERED WITHOUT JURISDICTION. 

THE COURT RELIES ON THREE "PRACTICAL REASONS" TO SUPPORT ITS
PERPLEXING CONCLUSION THAT DESPITE THE GOVERNMENT'S FAILURE PROMPTLY TO
SEEK RELIEF PENDENTE LITE IN THE ANTITRUST SUIT, ITS FAILURE TO PRESS
FOR REVIEW OF THE DENIAL OF SUCH RELIEF WHEN BELATEDLY SOUGHT, AND THE
COMMISSION'S EXPRESSED WILLINGNESS TO DEFER TO THE ANTITRUST COURT, THE
COMMISSION WAS NONETHELESS REQUIRED TO WITHHOLD APPROVAL OF THE MERGER
APPLICATION:  (1) IF THE ASSET MERGER WERE APPROVED AND EXECUTED, AND
THE STOCK PURCHASE THEREAFTER HELD TO BE ILLEGAL, AN "UNSCRAMBLING"
INVOLVING "NEEDLESS WASTE OF TIME AND MONEY" WOULD BE NECESSARY; (2)
SUCH AN "UNSCRAMBLING" WOULD "RAISE COMPLICATED AND PERPLEXING PROBLEMS
ON TAX MATTERS AND OTHERWISE"; (3) THE COMMISSION'S APPROVAL OF THE
ASSET MERGER "IS BOUND TO CARRY MOMENTUM INTO THE ANTITRUST SUIT." 
(ANTE, PP. 488-489).  WHATEVER WEIGHT THESE CONSIDERATIONS MAY BE
DEEMED TO HAVE, I THINK THAT "ORDERLY PROCEDURE" REQUIRED THEIR
DETERMINATION, AT LEAST IN THE FIRST INSTANCE, BY THE ANTITRUST COURT,
IF INDEED THEY WERE NOT REJECTED BY THE DISTRICT COURT ON THE
GOVERNMENT'S 1958 MOTION TO ENJOIN CONSUMMATION OF THE MERGER.  THEIR
CONSIDERATION BY THIS COURT AS AN ORIGINAL MATTER IS ENTIRELY
INAPPROPRIATE, AND IN NO EVENT DO ANY OF THEM AFFECT THE VALIDITY OF
THE COMMISSION'S ORDER APPROVING THE MERGER.  (FN2)

           I. 

TO THE UNITED STATES DISTRICT COURTS "TO PREVENT AND RESTRAIN
VIOLATIONS" OF THE CLAYTON ACT, AND EMPOWERS THE UNITED STATES
ATTORNEYS "TO INSTITUTE PROCEEDINGS IN EQUITY TO PREVENT AND RESTRAIN
SUCH VIOLATIONS."  THE SAME STATUTORY SECTION PROVIDES THAT PENDING
DETERMINATION OF THE MERITS OF A COMPLAINT FILED BY THE UNITED STATES
"AND BEFORE FINAL DECREE, THE COURT MAY AT ANY TIME MAKE SUCH TEMPORARY
RESTRAINING ORDER OR PROHIBITION AS SHALL BE DEEMED JUST IN THE
PREMISES."  CONSEQUENTLY, IT IS THE DUTY OF THE DISTRICT COURT BEFORE
WHICH AN ANTITRUST SUIT IS PENDING TO PASS ON THE DESIRABILITY OF
TEMPORARY RELIEF IN ORDER TO AVOID LATER PROBLEMS OF "UNSCRAMBLING." 
IN THE CASE BEFORE US, IT WAS NOT UNTIL MORE THAN A YEAR AFTER THE
GOVERNMENT KNEW OF EL PASO'S INTENTION TO MERGE PACIFIC'S ASSETS WITH
ITS OWN THAT IT REQUESTED THE DISTRICT COURT TO ENJOIN THE EXECUTION OF
THIS PLAN.  THE COURT'S DENIAL OF THE TEMPORARY INJUNCTION MUST BE
PRESUMED TO HAVE BEEN BASED ON ITS EVALUATION OF THE LIKELIHOOD OF
SUCCESS OF THE ANTITRUST SUIT AND OF THE DIFFICULTIES THAT MIGHT ARISE
IF INTERLOCUTORY RELIEF WERE DENIED.  NOT HAVING RENEWED ITS MOTION,
THE GOVERNMENT MAY SURELY NOT REVIVE IT INDIRECTLY BY ATTACKING THE
COMMISSION'S ORDER.  MOREOVER, BY WHAT AUTHORITY IS PETITIONER, THE
STATE OF CALIFORNIA, AN INTERVENOR ONLY IN THE COMMISSION'S
PROCEEDINGS, EMPOWERED TO ASSERT CLAIMS RELATING TO THE ENFORCEMENT OF
THE ANTITRUST LAWS THAT ARE UNAVAILABLE TO THE GOVERNMENT, THE
PLAINTIFF IN THE ANTITRUST ACTION? 

                       II. 

SIMILARLY, WHATEVER IS MEANT BY THE SUGGESTION THAT THE COMMISSION'S
APPROVAL CARRIES "MOMENTUM" INTO THE ANTITRUST SUIT, THIS FACTOR IS ONE
THAT SHOULD BE REMEDIED, IF NECESSARY, BY PURGING THE ANTITRUST
PROCEEDINGS OF ANY IMPROPER INFLUENCE DERIVING FROM THE AGENCY
DETERMINATION, NOT BY INVALIDATING THE ADMINISTRATIVE ACTION.  THE
COURT'S HOLDING - WHICH IS UNNECESSARY TO A DECISION OF THIS CASE AND,
AS THE GOVERNMENT ARGUES, ALSO PREMATURE (FN3) - THAT THE CONCLUDING
PROVISO OF SEC. 7 OF THE CLAYTON ACT GIVES THE COMMISSION'S APPROVAL OF
THIS ASSET MERGER NO IMMUNIZING EFFECT AGAINST THE ANTITRUST CLAIM,
SURELY LENDS ADDED SUPPORT TO THE VIEW THAT THE AGENCY IS PERMITTED TO
CONSIDER THIS APPLICATION AS IT MIGHT CONSIDER ANY OTHER WHICH SUGGESTS
NO DIFFICULTIES UNDER THE ANTITRUST LAWS.  IF THE COMMISSION'S APPROVAL
IS IRRELEVANT TO THE MERITS OF THE GOVERNMENT'S ANTITRUST SUIT, IT IS
THE COURT CONSIDERING THE ANTITRUST CLAIM WHICH SHOULD GUARD ITSELF
AGAINST GIVING WEIGHT TO THIS IRRELEVANCY, NOT THE COMMISSION PASSING
ON THE MERGER APPLICATION.  AND IF THE LOWER COURTS SHOULD ULTIMATELY
GO WRONG IN THIS REGARD, THEIR ERROR WOULD BE CORRECTIBLE IN THIS
COURT. 

LIKEWISE THERE IS LITTLE SUBSTANCE TO THE DIFFICULTY WHICH THIS COURT
FINDS IN A COURT "UNDOING WHAT WAS DONE" (ANTE, P. 489) BY THE
COMMISSION.  HAD THE ANTITRUST TRIAL COURT BEEN FEARFUL ON THAT SCORE
IT COULD HAVE ENTERED AN APPROPRIATE INTERLOCUTORY ORDER ENSURING THAT
NOTHING WOULD BE DONE WHILE THE LITIGATION WAS PENDING. 
                            III. 

FINALLY, I DO NOT THINK THAT THE RECORD IN THIS CASE JUSTIFIES A
CONCLUSION THAT THE COMMISSION'S REFUSAL TO POSTPONE CONSIDERATION OF
THE MERGER APPLICATION AMOUNTED TO AN ABUSE OF DISCRETION.  ON THE
COURT'S PREMISE THAT THE AGENCY'S APPROVAL DID NOT IMMUNIZE THE
TRANSACTION FROM ANTITRUST LIABILITY, THE COMMISSION'S ACTION IN
GRANTING THE CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY DID NO
MORE THAN PERMIT THE MERGER TO BE CONSUMMATED SUBJECT TO ALL POSSIBLE
ANTITRUST INFIRMITIES.  AND EVEN PROCEEDING, ON THE COMMISSION'S
PREMISE THAT THE PROVISO OF SEC. 7 OF THE CLAYTON ACT GIVES IT THE
POWER TO IMMUNIZE MERGERS FROM ANTITRUST LIABILITY, ITS DECISION TO GO
AHEAD AFTER BEING NOTIFIED BY THE DISTRICT COURT THAT THE MOTION TO
CONTINUE THE ANTITRUST SUIT HAD BEEN GRANTED COULD HARDLY BE REGARDED
AS AN ABUSE OF DISCRETION. 

IN CONCLUSION, THE COURT'S DECISION IN THIS CASE CREATES A WHOLLY
ARTIFICIAL IMBALANCE BETWEEN ANTITRUST LAW ENFORCEMENT AND
ADMINISTRATIVE REGULATION WITH RESPECT TO FEDERALLY REGULATED
INDUSTRIES.  BY DISPLACING THE CONTINUING SUPERVISION OF A COURT OVER
SUCH INTERLOCUTORY TERMS AS ARE "JUST IN THE PREMISES" WITH AN ABSOLUTE
RULE PROHIBITING THE REGULATING AGENCY FROM CONSIDERING APPLICATIONS
RELATING TO MATTERS WHICH ARE ALSO INVOLVED IN A PENDING ANTITRUST
SUIT, THIS DECISION SEEMS TO LEAVE NO ROOM FOR SENSIBLE ACCOMMODATION
OF THE TWO SETS OF INTERESTS IN A GIVEN INSTANCE.  NEITHER THE
INFLEXIBLE RULE ANNOUNCED BY THE COURT NOR ITS DECISION ON THE FACTS OF
THIS CASE IS SUPPORTED BY REASON OR AUTHORITY. 

I WOULD AFFIRM. 

FN1  THE FACT THAT SUCH A MOTION WAS MADE AND DENIED DOES NOT APPEAR
IN THE RECORD BEFORE THIS COURT.  HOWEVER, IT IS ASSERTED IN EL PASO'S
BRIEF AND IS NOT DENIED BY ANY OF THE OTHER PARTIES. 

FN2  BECAUSE OF THE POSTURE OF THIS CASE, I WOULD NOT REACH THE
QUESTION AS TO WHAT WEIGHT SHOULD BE GIVEN TO THE PENDENCY OF
ADMINISTRATIVE MERGER PROCEEDINGS BY AN ANTITRUST COURT WHICH IS ASKED
TO GRANT INTERLOCUTORY RELIEF.  HOWEVER, I THINK MORE CAN BE SAID THAN
THE COURT DOES IN FAVOR OF STAYING THE HAND OF AN ANTITRUST COURT
PENDING CONSIDERATION BY THE APPROPRIATE AGENCY OF MATTERS TOUCHING ON
"THOSE AREAS  ...  IN WHICH ACTIVE REGULATION HAS BEEN FOUND NECESSARY
TO COMPENSATE FOR THE INABILITY OF COMPETITION TO PROVIDE ADEQUATE
REGULATION."  FEDERAL COMMUNICATIONS COMM'N V. RCA COMMUNICATIONS,
INC., 346 U.S. 86, 92. 

FN3  WHATEVER MAY BE THE IMPACT ON A SEC. 7 ACTION OF THE
COMMISSION'S APPROVAL OF THIS MERGER, IT CAN BE FELT ONLY IN THE
ANTITRUST SUIT.  CONSEQUENTLY, I WOULD, AS THE SOLICITOR GENERAL HAS
SUGGESTED, LEAVE THIS ISSUE OPEN FOR CONSIDERATION IN THE DISTRICT
COURT SHOULD THE AGENCY'S ORDER BE ASSERTED AS A DEFENSE IN THAT
ACTION. 
..END :









COMMISSIONER V. BILDER 369 U.S. 499 


NO. 384.  ARGUED MARCH 29, 1962 - DECIDED APRIL 30, 1962 - 289 F.2D 291,
REVERSED. 


UNDER SEC. 213 OF THE INTERNAL REVENUE CODE OF 1954, A TAXPAYER WHO
HAS BEEN ORDERED BY HIS PHYSICIAN TO SPEND THE WINTER MONTHS IN
FLORIDA, AS PART OF A REGIMEN OF MEDICAL TREATMENTS, MAY NOT DEDUCT AS
AN EXPENSE FOR "MEDICAL CARE" THE RENT PAID FOR AN APARTMENT IN
FLORIDA.  PP. 499-505. 

COMMISSIONER OF INTERNAL REVENUE V. BILDER, EXECUTRIX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE DEDUCTIBILITY AS AN EXPENSE FOR "MEDICAL
CARE," UNDER SEC. 213 OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C.
SEC. 213, OF RENT PAID BY A TAXPAYER FOR AN APARTMENT IN FLORIDA, WHERE
HE WAS ORDERED BY HIS PHYSICIANS, AS PART OF A REGIMEN OF MEDICAL
TREATMENT, TO SPEND THE WINTER MONTHS.  (FN1) 

THE TAXPAYER, NOW DECEASED, WAS AN ATTORNEY PRACTICING LAW IN NEWARK,
NEW JERSEY.  IN DECEMBER 1953, WHEN HE WAS 43 YEARS OF AGE AND HAD
SUFFERED FOUR HEART ATTACKS DURING THE PREVIOUS EIGHT YEARS, HE WAS
ADVISED BY A HEART SPECIALIST TO SPEND THE WINTER SEASON IN A WARM
CLIMATE.  THE TAXPAYER, HIS WIFE, AND HIS THREE-YEAR-OLD DAUGHTER
PROCEEDED IMMEDIATELY TO FORT LAUDERDALE, FLORIDA, WHERE THEY RESIDED
FOR THE ENSUING THREE MONTHS IN AN APARTMENT RENTED FOR $1,500.  TWO
MONTHS OF THE SUCCEEDING WINTER WERE ALSO SPENT IN FORT LAUDERDALE IN
AN APARTMENT RENTED FOR $829. 

THE TAXPAYER CLAIMED THE TWO RENTAL PAYMENTS AS DEDUCTIBLE MEDICAL
EXPENSES IN HIS 1954 AND 1955 INCOME TAX RETURNS.  THESE DEDUCTIONS
WERE DISALLOWED IN THEIR ENTIRETY BY THE COMMISSIONER.  (FN2) THE TAX
COURT REVERSED THE COMMISSIONER'S DETERMINATION TO THE EXTENT OF ONE
THIRD OF THE DEDUCTIONS, FINDING THAT PROPORTION OF THE TOTAL CLAIMED
ATTRIBUTABLE TO THE TAXPAYER'S OWN LIVING ACCOMMODATIONS.  THE
REMAINING TWO-THIRDS IT ATTRIBUTED TO THE ACCOMMODATIONS OF HIS WIFE
AND CHILD, WHOSE PRESENCE, THE TAX COURT CONCLUDED, HAD NOT BEEN SHOWN
TO BE NECESSARY TO THE MEDICAL TREATMENT OF THE TAXPAYER'S ILLNESS.  33
T.C. 155. 

ON CROSS-APPEALS FROM THE DECISION OF THE TAX COURT, THE COURT OF
APPEALS HELD, BY A DIVIDED VOTE, THAT THE FULL RENTAL PAYMENTS WERE
DEDUCTIBLE AS EXPENSES FOR "MEDICAL CARE" WITHIN THE MEANING OF SEC.
213.  289 F.2D 291.  BECAUSE OF A SUBSEQUENT CONTRARY HOLDING BY THE
COURT OF APPEALS FOR THE SECOND CIRCUIT, CARASSO V. COMMISSIONER, 292
F.2D 367, AND THE NEED FOR A UNIFORM RULE ON THE POINT, WE GRANTED
CERTIORARI TO RESOLVE THE CONFLICT.  368 U.S. 912. 

THE COMMISSIONER CONCEDES THAT PRIOR TO THE ENACTMENT OF THE INTERNAL
REVENUE CODE OF 1954 RENTAL PAYMENTS OF THE SORT MADE BY THE TAXPAYER
WERE RECOGNIZED AS DEDUCTIBLE MEDICAL EXPENSES.  THIS WAS BECAUSE SEC.
23(X) OF THE INTERNAL REVENUE CODE OF 1939, THOUGH EXPRESSLY
AUTHORIZING DEDUCTIONS ONLY FOR "AMOUNTS PAID FOR THE DIAGNOSIS, CURE,
MITIGATION, TREATMENT, OR PREVENTION OF DISEASE," (FN3) HAD BEEN
CONSTRUED TO INCLUDE "TRAVEL PRIMARILY FOR AND ESSENTIAL TO  ...  THE
PREVENTION OR ALLEVIATION OF A PHYSICAL OR MENTAL DEFECT OR ILLNESS,"
TREASURY REGULATIONS 111, SEC. 29.23(X)-1, AND THE COST OF MEALS AND
LODGING DURING SUCH TRAVEL, I.T. 3786, 1946-1 CUM. BULL.  76.  SEE,
E.G., STRINGHAM V. COMMISSIONER, 12 T.C. 580, AFF'D, 183 F.2D 597; REV.
RULE 55-261, 1955-1 CUM. BULL.  307. 

THE COMMISSIONER MAINTAINS, HOWEVER, THAT IT WAS THE PURPOSE OF
CONGRESS, IN ENACTING SEC. 213(E)(1)(A) OF THE 1954 CODE, ALBEIT IN
LANGUAGE IDENTICAL TO THAT USED IN SEC. 23(X) OF THE 1939 CODE (COMPARE
NOTES 1 AND 3, SUPRA), TO DENY DEDUCTIONS FOR ALL PERSONAL OR LIVING
EXPENSES INCIDENTAL TO MEDICAL TREATMENT OTHER THAN THE COST OF
TRANSPORTATION OF THE PATIENT ALONE, THAT EXCEPTION HAVING BEEN
EXPRESSLY ADDED BY SUBDIVISION (B) TO THE DEFINITION OF "MEDICAL CARE"
IN SEC. 213(E)(1).  NOTE 1, SUPRA.

WE CONSIDER THE COMMISSIONER'S POSITION UNASSAILABLE IN LIGHT OF THE
CONGRESSIONAL PURPOSE EXPLICITLY REVEALED IN THE HOUSE AND SENATE
COMMITTEE REPORTS ON THE BILL.  THESE REPORTS, ANTICIPATING THE PRECISE
SITUATION NOW BEFORE US, STATE: 

"SUBSECTION (E) DEFINES MEDICAL CARE TO MEAN AMOUNTS PAID FOR THE
DIAGNOSIS, CURE, MITIGATION, TREATMENT, OR PREVENTION OF DISEASES OR
FOR THE PURPOSE OF AFFECTING ANY STRUCTURE OR FUNCTION OF THE BODY
(INCLUDING AMOUNTS PAID FOR ACCIDENT OR HEALTH INSURANCE), OR FOR
TRANSPORTATION PRIMARILY FOR AND ESSENTIAL TO MEDICAL CARE.  THE
DEDUCTION PERMITTED FOR 'TRANSPORTATION PRIMARILY FOR AND ESSENTIAL TO
MEDICAL CARE' CLARIFIES EXISTING LAW IN THAT IT SPECIFICALLY EXCLUDES
DEDUCTION OF ANY MEALS AND LODGING WHILE AWAY FROM HOME RECEIVING
MEDICAL TREATMENT.  FOR EXAMPLE, IF A DOCTOR PRESCRIBES THAT A PATIENT
MUST GO TO FLORIDA IN ORDER TO ALLEVIATE SPECIFIC CHRONIC AILMENTS AND
TO ESCAPE UNFAVORABLE CLIMATIC CONDITIONS WHICH HAVE PROVEN INJURIOUS
TO THE HEALTH OF THE TAXPAYER, AND THE TRAVEL IS PRESCRIBED FOR REASONS
OTHER THAN THE GENERAL IMPROVEMENT OF A PATIENT'S HEALTH, THE COST OF
THE PATIENT'S TRANSPORTATION TO FLORIDA WOULD BE DEDUCTIBLE BUT NOT HIS
LIVING EXPENSES WHILE THERE.  HOWEVER, IF A DOCTOR PRESCRIBED AN
APPENDECTOMY AND THE TAXPAYER CHOSE TO GO TO FLORIDA FOR THE OPERATION
NOT EVEN HIS TRANSPORTATION COSTS WOULD BE DEDUCTIBLE.  THE SUBSECTION
IS NOT INTENDED OTHERWISE TO CHANGE THE EXISTING DEFINITIONS OF MEDICAL
CARE, TO DENY THE COST OF ORDINARY AMBULANCE TRANSPORTATION NOR TO DENY
THE COST OF FOOD OR LODGING PROVIDED AS PART OF A HOSPITAL BILL."  H.R.
REP. NO. 1337, 83D CONG., 2D SESS. A60 (1954); S. REP. NO. 1622, 83D
CONG., 2D SESS. 219-220 (1954).  (FN4) 

SINCE UNDER THE PREDECESSOR STATUTE, AS IT HAD BEEN CONSTRUED,
EXPENSES FOR MEALS AND LODGING WERE DEDUCTIBLE AS EXPENSES FOR "MEDICAL
CARE," IT MAY WELL BE TRUE THAT THE COMMITTEE REPORTS SPOKE IN PART
INARTISTICALLY WHEN THEY REFERRED TO SUBSECTION (E) AS A MERE
CLARIFICATION OF "EXISTING LAW," ALTHOUGH IT WILL BE NOTED THAT THE
REPORT ALSO REFERRED TO WHAT WAS BEING DONE AS A PRO TANTO "CHANGE" IN
"THE EXISTING DEFINITIONS OF MEDICAL CARE."  YET CONGRESS' PURPOSE TO
EXCLUDE SUCH EXPENSES AS MEDICAL DEDUCTIONS UNDER THE NEW BILL IS
UNMISTAKABLE IN THESE AUTHORITATIVE PRONOUNCEMENTS, IBID.; CF. BUDGET
MESSAGE OF THE PRESIDENT FOR THE FISCAL YEAR 1955, H.R. DOC. NO. 264,
83D CONG., 2D SESS. M17 (1954); MEMORANDUM OF JOINT COMMITTEE ON
INTERNAL REVENUE TAXATION, 1 SENATE HEARINGS ON THE INTERNAL REVENUE
CODE OF 1954, 83D CONG., 2D SESS. 24 (1954); MEMORANDUM OF THE UNDER
SECRETARY OF THE TREASURY, ID., AT 103.  IT IS THAT FACTOR WHICH IS OF
CONTROLLING IMPORTANCE HERE.  (FN5) 

WE NEED NOT CONSIDER WHETHER WE WOULD BE WARRANTED IN DISREGARDING
THESE UNEQUIVOCAL EXPRESSIONS OF LEGISLATIVE INTENT IF THE STATUTE WERE
SO WRITTEN AS TO PERMIT NO REASONABLE CONSTRUCTION OTHER THAN THAT
URGED ON BEHALF OF THE TAXPAYER.  COMPARE BOSTON SAND & GRAVEL CO. V.
UNITED STATES, 278 U.S. 41, 48; UNITED STATES V. DICKERSON, 310 U.S.
554, 561-562; HARRISON V. NORTHERN TRUST CO. 317 U.S. 476, 479.  SEE
ALSO ASSOCIATION OF WESTINGHOUSE SALARIED EMPLOYEES V. WESTINGHOUSE
ELEC.  CORP., 348 U.S. 437, 444.  EVEN THE INITIAL DECISION OF THE TAX
COURT UNDER THE 1939 CODE RESPECTING THE DEDUCTIBILITY OF SIMILAR
EXPENSES UNDER SEC. 23(X) RECOGNIZED THAT THE LANGUAGE OF THAT STATUTE
WAS "SUSCEPTIBLE TO A VARIETY OF CONFLICTING INTERPRETATIONS,"
STRINGHAM V. COMMISSIONER, 12 T.C. 580, 583.  THE TAX COURT'S
CONCLUSION AS TO THE MEANING OF SEC. 23(X) OF THE EARLIER STATUTE WHICH
WAS AFFIRMED BY THE COURT OF APPEALS, 183 F.2D 579, AND ACQUIESCED IN
BY THE COMMISSIONER, NECESSARILY RESTED ON WHAT EMERGED FROM A STUDY OF
THE LEGISLATIVE HISTORY OF THAT ENACTMENT.  SO TOO THE CONCLUSION IN
THIS CASE, WHICH TURNS ON THE CONSTRUCTION OF THE IDENTICAL WORDS RE
ENACTED AS PART OF SEC. 213, MUST BE BASED ON AN EXAMINATION OF THE
LEGISLATIVE HISTORY OF THIS PROVISION OF THE 1954 CODE.  THE COMMITTEE
REPORTS FORECLOSE ANY READING OF THAT PROVISION WHICH WOULD PERMIT THIS
TAXPAYER TO TAKE THE RENTAL PAYMENTS FOR HIS FLORIDA APARTMENT AS
"MEDICAL CARE" DEDUCTIONS.  REVERSED. 

FN1  SECTION 213 OF THE 1954 CODE ALLOWS AS DEDUCTIONS IN COMPUTING
NET INCOME "THE EXPENSES PAID DURING THE TAXABLE YEAR, NOT COMPENSATED
FOR BY INSURANCE OR OTHERWISE, FOR MEDICAL CARE OF THE TAXPAYER, HIS
SPOUSE, OR A DEPENDENT  ...  ."  SUBDIVISION (E)(1) DEFINES SUCH
EXPENSES AS "AMOUNTS PAID": 

"(A)  FOR THE DIAGNOSIS, CURE, MITIGATION, TREATMENT, OR PREVENTION
OF DISEASE, OR FOR THE PURPOSE OF AFFECTING ANY STRUCTURE OR FUNCTION
OF THE BODY (INCLUDING AMOUNTS PAID FOR ACCIDENT OR HEALTH INSURANCE),
OR: 

"(B)  FOR TRANSPORTATION PRIMARILY FOR AND ESSENTIAL TO MEDICAL CARE
REFERRED TO IN SUBPARAGRAPH (A)." 

FN2  THE COMMISSIONER CONCEDES THAT THE TAXPAYER'S SOJOURN IN FLORIDA
WAS NOT FOR VACATION PURPOSES BUT WAS "A MEDICAL NECESSITY AND  ...  A
PRIMARY PART OF NECESSARY MEDICAL TREATMENT OF A DISEASE" FROM WHICH
THE TAXPAYER WAS SUFFERING, I.E., ATHEROSCLEROSIS.  33 T.C., AT 157. 
THE TAXPAYER ALSO CLAIMED IN EACH OF HIS TAX RETURNS A $250 DEDUCTION
FOR HIS TRANSPORTATION BETWEEN NEWARK AND FORT LAUDERDALE.  ALTHOUGH
THE COMMISSIONER INITIALLY DISALLOWED THIS DEDUCTION, HE THEREAFTER
ACQUIESCED IN ITS ALLOWANCE BY THE TAX COURT. 

FN3  SECTION 23(X) WAS ADDED TO THE INTERNAL REVENUE CODE OF 1939 BY
SEC. 127(A) OF THE REVENUE ACT OF 1942, 56 STAT. 825.  IT PROVIDED, IN
PERTINENT PART: 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS  ...
EXPENSES PAID DURING THE TAXABLE YEAR, NOT COMPENSATED FOR BY INSURANCE
OR OTHERWISE, FOR MEDICAL CARE OF THE TAXPAYER, HIS SPOUSE, OR A
DEPENDENT  ...  OF THE TAXPAYER.  THE TERM 'MEDICAL CARE,' AS USED IN
THIS SUBSECTION, SHALL INCLUDE AMOUNTS PAID FOR THE DIAGNOSIS, CURE,
MITIGATION, TREATMENT, OR PREVENTION OF DISEASE, OR FOR THE PURPOSE OF
AFFECTING ANY STRUCTURE OR FUNCTION OF THE BODY (INCLUDING AMOUNTS PAID
FOR ACCIDENT OR HEALTH INSURANCE)." 

FN4  THE SUBSTANCE OF THE RULE SET FORTH IN BOTH REPORTS HAS BEEN
EMBODIED IN THE TREASURY REGULATIONS INTERPRETING SEC. 213: 

"(IV)  EXPENSES PAID FOR TRANSPORTATION PRIMARILY FOR AND ESSENTIAL
TO THE RENDITION OF THE MEDICAL CARE ARE EXPENSES PAID FOR MEDICAL
CARE.  HOWEVER, AN AMOUNT ALLOWABLE AS A DEDUCTION FOR 'TRANSPORTATION
PRIMARILY FOR AND ESSENTIAL TO MEDICAL CARE' SHALL NOT INCLUDE THE COST
OF ANY MEALS AND LODGING WHILE AWAY FROM HOME RECEIVING MEDICAL
TREATMENT.  FOR EXAMPLE, IF A DOCTOR PRESCRIBES THAT A TAXPAYER GO TO A
WARM CLIMATE IN ORDER TO ALLEVIATE A SPECIFIC CHRONIC AILMENT, THE COST
OF MEALS AND LODGING WHILE THERE WOULD NOT BE DEDUCTIBLE.  ON THE OTHER
HAND, IF THE TRAVEL IS UNDERTAKEN MERELY FOR THE GENERAL IMPROVEMENT OF
A TAXPAYER'S HEALTH, NEITHER THE COST OF TRANSPORTATION NOR THE COST OF
MEALS AND LODGING WOULD BE DEDUCTIBLE.  IF A DOCTOR PRESCRIBES AN
OPERATION OR OTHER MEDICAL CARE, AND THE TAXPAYER CHOOSES FOR PURELY
PERSONAL CONSIDERATIONS TO TRAVEL TO ANOTHER LOCALITY (SUCH AS A RESORT
AREA) FOR THE OPERATION OR THE OTHER MEDICAL CARE, NEITHER THE COST OF
TRANSPORTATION NOR THE COST OF MEALS AND LODGING (EXCEPT WHERE PAID AS
PART OF A HOSPITAL BILL) IS DEDUCTIBLE."  TREASURY REGULATIONS ON
INCOME TAX (1954 CODE) SEC. 1.213-1(E)(1)(IV). 

FN5  THE EXPLICITNESS OF THE COMMITTEE REPORTS RENDERS IT UNNECESSARY
TO CONSIDER THE COMMISSIONER'S ALTERNATIVE ARGUMENT THAT THE STATUTE ON
ITS FACE PRECLUDES THESE DEDUCTIONS BECAUSE (1) SEC. 262 OF THE 1954
CODE, 26 U.S.C. SEC. 262, ALLOWS NO DEDUCTIONS FOR "PERSONAL, LIVING,
OR FAMILY EXPENSES" "EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
CHAPTER," AND (2) APART FROM THE MEDICAL "TRANSPORTATION" EXPENSE
PROVIDED IN SEC. 213(E)(1)(B), NO OTHER EXPRESS EXCEPTION CAN BE FOUND
IN THE STATUTE.  AND THE EQUITABLE CONSIDERATIONS WHICH THE RESPONDENT
BRINGS TO BEAR IN SUPPORT OF HER CONSTRUCTION OF SEC. 213 ARE OF COURSE
BESIDE THE POINT IN THIS COURT, SINCE WE MUST GIVE THE STATUTE EFFECT
IN ACCORDANCE WITH THE PURPOSE SO CLEARLY MANIFESTED BY CONGRESS. 

MR. JUSTICE DOUGLAS WOULD AFFIRM THE JUDGMENT BELOW FOR THE REASONS
GIVEN BY JUDGE KALODNER, 289 F.2D 291. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









CARNLEY V. COCHRAN 369 U.S. 506 


NO. 158.  ARGUED FEBRUARY 20-21, 1962 - DECIDED APRIL 30, 1962 - 123 SO.
2D 249, REVERSED AND CAUSE REMANDED. 


PETITIONER, AN ILLITERATE, WAS TRIED IN A FLORIDA STATE COURT WITHOUT
COUNSEL AND WAS CONVICTED OF SERIOUS NONCAPITAL OFFENSES.  THE RECORD
WAS SILENT AS TO WHETHER HE HAD BEEN OFFERED AND HAD WAIVED COUNSEL;
BUT IT CLEARLY SHOWED THAT HE WAS INCAPABLE OF CONDUCTING HIS OWN
DEFENSE.  HELD: 

1.  PETITIONER'S CASE WAS ONE IN WHICH THE ASSISTANCE OF COUNSEL,
UNLESS INTELLIGENTLY AND UNDERSTANDINGLY WAIVED BY HIM, WAS A RIGHT
GUARANTEED HIM BY THE FOURTEENTH AMENDMENT.  PP. 506-513. 

2.  PRESUMING WAIVER OF COUNSEL FROM A SILENT RECORD IS
IMPERMISSIBLE.  TO SUSTAIN A CLAIM THAT COUNSEL WAS WAIVED, THE RECORD
MUST SHOW, OR THERE MUST BE AN ALLEGATION AND EVIDENCE WHICH SHOW, THAT
THE ACCUSED WAS OFFERED COUNSEL BUT INTELLIGENTLY AND UNDERSTANDINGLY
REJECTED THE OFFER.  PP. 513-517. 

CARNLEY V. COCHRAN, CORRECTIONS DIRECTOR. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, WHO WAS NOT AFFORDED THE ASSISTANCE OF COUNSEL FOR
HIS DEFENSE AT HIS TRIAL, CLAIMS THAT, FOR THIS REASON, HIS CONVICTION
BY A JURY IN THE COURT OF RECORD FOR ESCAMBIA COUNTY, FLORIDA, DEPRIVED
HIM OF RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT.  HE OBTAINED A
PROVISIONAL WRIT OF HABEAS CORPUS FROM THE FLORIDA SUPREME COURT ON HIS
PETITION ASSERTING THAT CLAIM. 

HOWEVER, THAT COURT, ON THE PETITION, THE RESPONDENT'S RETURN AND THE
PETITIONER'S REPLY - BUT WITHOUT ANY HEARING - DISCHARGED THE WRIT. 
123 SO. 2D 249.  SINCE AN IMPORTANT CONSTITUTIONAL RIGHT IS INVOLVED,
WE GRANTED CERTIORARI AND APPOINTED COUNSEL TO REPRESENT THE PETITIONER
IN THIS COURT.  366 U.S. 958, 368 U.S. 806. 

THE ASSISTANCE OF COUNSEL MIGHT WELL HAVE MATERIALLY AIDED THE
PETITIONER IN COPING WITH SEVERAL ASPECTS OF THE CASE.  HE WAS CHARGED
WITH THE NONCAPITAL OFFENSES OF INCESTUOUS SEXUAL INTERCOURSE WITH HIS
13-YEAR-OLD DAUGHTER AND, IN A SEPARATE COUNT RELATING TO THE SAME
ACTS, FONDLING A MINOR CHILD, THAT IS, ASSAULT IN A LEWD, LASCIVIOUS,
AND INDECENT MANNER, UPON A FEMALE CHILD UNDER THE AGE OF 14.  AT THE
TIME OF TRIAL TWO SETS OF FLORIDA CRIMINAL STATUTES CONTAINED LANGUAGE
REACHING SUCH BEHAVIOR.  SECTIONS 741.22 AND 800.04, FLORIDA STATUTES,
1959, WERE GENERAL CRIMINAL PROVISIONS SEPARATELY DEFINING THE TWO
OFFENSES OF INCEST AND ASSAULT IN A LEWD, LASCIVIOUS, AND INDECENT
MANNER.  IN ADDITION, BOTH OFFENSES WERE INCLUDED WITHIN THE LATER
ENACTED CHAPTER 801 OF THE FLORIDA STATUTES - FLORIDA'S SO-CALLED CHILD
MOLESTER ACT - IF THE VICTIM WAS 14 YEARS OF AGE OR YOUNGER.  (FN1)
THE FLORIDA SUPREME COURT PLAINLY CONCEIVED THE PETITIONER'S
PROSECUTION FOR BOTH OFFENSES AS HAVING BEEN UNDER THE CHILD MOLESTER
ACT.  123 SO. 2D, AT 250.  WHILE THAT IS AN OBVIOUSLY PLAUSIBLE VIEW, A
LAWYER, BUT NOT A LAYMAN, MIGHT HAVE PERCEIVED THAT BECAUSE THE CHILD
MOLESTER ACT WAS INVOKED AGAINST THE PETITIONER IN RESPECT OF CONDUCT
ELSEWHERE SPECIFICALLY DEFINED AS CRIMINAL, THE 1954 DECISION OF THE
FLORIDA SUPREME COURT IN COPELAND V. STATE, 76 SO. 2D 137, RAISED
DOUBTS, UNDER THE FLORIDA CONSTITUTION, OF THE VALIDITY OF A
PROSECUTION BASED ON THE ACT.  (FN2)  THE PICTURE IS FURTHER
COMPLICATED BY THE FACT THAT THE CHILD MOLESTER ACT HAD INCLUDED NO
REFERENCE TO INCEST PRIOR TO AN AMENDMENT MADE SUBSEQUENT TO THE
PETITIONER'S ALLEGED OFFENSE.  (FN3) 

ESTABLISHING THE BASIS OF THE PETITIONER'S PROSECUTION WAS VITALLY
IMPORTANT FOR THE PROTECTION OF HIS RIGHTS.  IF THE CHILD MOLESTER ACT
WAS VALIDLY APPLIED AGAINST THE PETITIONER, COUNSEL COULD HAVE
MATERIALLY ASSISTED HIM BY INVOKING ON HIS BEHALF THE SPECIAL
PROVISIONS OF THAT LAW GOVERNING THE DISPOSITION OF DEFENDANTS CHARGED
UNDER IT.  SECTIONS 741.22 AND 800.04 AUTHORIZE ONLY JAIL SENTENCES. 
IN CONTRAST, THE CHILD MOLESTER ACT EMPOWERS THE SENTENCING JUDGE IN A
PROPER CASE TO COMMIT THE CONVICTED DEFENDANT TO A FLORIDA STATE
HOSPITAL FOR TREATMENT AND REHABILITATION.  (FN4) THAT LAW ALSO PERMITS
THE ACCUSED TO PETITION FOR A PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATION
FOR THE PURPOSE OF ASSISTING THE COURT IN THE TRIAL OF THE CASE. 
(FN5) 

THERE ARE THUS PRESENT CONSIDERATIONS OF A SORT OFTEN DEEMED
SUFFICIENT TO REQUIRE THE CONCLUSION THAT A TRIAL FOR CRIME WITHOUT
DEFENSE COUNSEL DID NOT MEASURE UP TO THE REQUIREMENTS OF THE
FOURTEENTH AMENDMENT.  SEE, E.G., CHEWNING V. CUNNINGHAM, 368 U.S. 443,
446-447; REYNOLDS V. COCHRAN, 365 U.S. 525, 531-532; MCNEAL V. CULVER,
365 U.S. 109, 114-116; RICE V. OLSON, 324 U.S. 786, 789-791. 

OTHER ASPECTS OF THIS RECORD ALSO SUPPORT PETITIONER'S CLAIM OF THE
UNFAIRNESS OF TRYING HIM WITHOUT AFFORDING HIM THE HELP OF A LAWYER. 
AS MUST GENERALLY BE THE CASE, THE TRIAL JUDGE COULD NOT EFFECTIVELY
DISCHARGE THE ROLES OF BOTH JUDGE AND DEFENSE COUNSEL.  HERE THE RECORD
SHOWS THAT THE TRIAL JUDGE MADE EFFORTS TO ASSIST THE PETITIONER, BUT
THERE WERE IMPORTANT OMISSIONS IN THE GUIDANCE HE GAVE.  HE DID NOT
FULLY APPRISE THE PETITIONER OF VITAL PROCEDURAL RIGHTS OF WHICH LAYMEN
COULD NOT BE EXPECTED TO KNOW BUT TO WHICH DEFENSE COUNSEL DOUBTLESS
WOULD HAVE CALLED ATTENTION.  THE OMISSIONS ARE SIGNIFICANT.  SEE,
E.G., CASH V. CULVER, 358 U.S. 633, 637-638; GIBBS V. BURKE, 337 U.S.
773, 776-778; HUDSON V. NORTH CAROLINA, 363 U.S. 697, 702-703.  DESPITE
THE ALLEGATION IN RESPONDENT'S RETURN THAT "THE PETITIONERS WERE
CAREFULLY INSTRUCTED BY THE TRIAL COURT WITH REGARD TO THE RIGHTS
GUARANTEED BY BOTH THE CONSTITUTION OF FLORIDA AND THE CONSTITUTION OF
THE UNITED STATES (FN6) AND WITH REGARD TO THE PROCEDURES TO BE
FOLLOWED DURING THE COURSE OF THE TRIAL," IT APPEARS THAT, WHILE
PETITIONER WAS ADVISED THAT HE NEED NOT TESTIFY, HE WAS NOT TOLD WHAT
CONSEQUENCES MIGHT FOLLOW IF HE DID TESTIFY.  HE CHOSE TO TESTIFY AND
HIS CRIMINAL RECORD WAS BROUGHT OUT ON HIS CROSS-EXAMINATION.  FOR
DEFENSE LAWYERS, IT IS COMMONPLACE TO WEIGH THE RISK TO THE ACCUSED OF
THE REVELATION ON CROSS-EXAMINATION OF A PRIOR CRIMINAL RECORD, WHEN
ADVISING AN ACCUSED WHETHER TO TAKE THE STAND IN HIS OWN BEHALF; FOR
PETITIONER, THE QUESTION HAD TO BE DECIDED IN IGNORANCE OF THIS
IMPORTANT CONSIDERATION.  NOR DOES IT APPEAR THAT THE TRIAL JUDGE
ADVISED THE PETITIONER OF HIS RIGHT TO EXAMINE PROSPECTIVE JURORS ON
VOIR DIRE, OR OF HIS RIGHT TO SUBMIT PROPOSED INSTRUCTIONS TO THE JURY,
OR OF HIS RIGHT TO OBJECT TO THE INSTRUCTIONS THAT WERE GIVEN. 

OTHER CIRCUMSTANCES ATTENDING THIS CASE ONLY SERVE TO ACCENTUATE THE
UNFAIRNESS OF TRIAL WITHOUT COUNSEL.  PETITIONER IS ILLITERATE.  HE DID
NOT INTERPOSE A SINGLE OBJECTION DURING THE TRIAL.  THE ONLY TWO
WITNESSES AGAINST HIM WERE HIS DAUGHTER AND A 15-YEAR-OLD SON. 
ALTHOUGH BOTH PETITIONER AND HIS WIFE TESTIFIED THAT THEY HAD
EXPERIENCED DISCIPLINARY PROBLEMS WITH THE CHILDREN, AND THUS CLEARLY
REVEALED A POSSIBLY SIGNIFICANT AVENUE FOR IMPEACHMENT OF THE
CHILDREN'S TESTIMONY, THERE WAS NO CROSS-EXAMINATION WORTHY OF THE
NAME.  (FN7) 

WE HOLD THAT PETITIONER'S CASE WAS ONE IN WHICH THE ASSISTANCE OF
COUNSEL, UNLESS INTELLIGENTLY AND UNDERSTANDINGLY WAIVED BY HIM, WAS A
RIGHT GUARANTEED HIM BY THE FOURTEENTH AMENDMENT. 

WE MUST THEREFORE CONSIDER WHETHER THE PETITIONER DID INTELLIGENTLY
AND UNDERSTANDINGLY WAIVE THE ASSISTANCE OF COUNSEL.  THE RECORD DOES
NOT SHOW THAT THE TRIAL JUDGE OFFERED AND THE PETITIONER DECLINED
COUNSEL.  CF. MOORE V. MICHIGAN, 355 U.S. 155, 160-161.  NEVERTHELESS,
THE STATE SUPREME COURT IMPUTED TO PETITIONER THE WAIVER OF THE BENEFIT
OF COUNSEL ON A GROUND STATED IN THE COURT'S OPINION AS FOLLOWS:  "IF
THE RECORD SHOWS THAT DEFENDANT DID NOT HAVE COUNSEL  ...  , IT WILL BE
PRESUMED THAT DEFENDANT WAIVED THE BENEFIT OF COUNSEL  ...  ."  123 SO.
2D, AT 251.  THIS MIGHT MEAN THAT THE PETITIONER COULD HAVE SUFFERED NO
CONSTITUTIONAL DEPRIVATION IF HE HAD NOT FORMALLY REQUESTED COUNSEL,
AND THAT FAILURE TO MAKE SUCH A REQUEST IS TO BE PRESUMED UNLESS THE
RECORD SHOWS THE CONTRARY.  BUT IT IS SETTLED THAT WHERE THE ASSISTANCE
OF COUNSEL IS A CONSTITUTIONAL REQUISITE, THE RIGHT TO BE FURNISHED
COUNSEL DOES NOT DEPEND ON A REQUEST.  (FN8) IN MCNEAL V. CULVER,
SUPRA, THE PETITIONER'S ALLEGATION THAT HE HAD REQUESTED COUNSEL WAS
COUNTERED BY A DENIAL IN THE RETURN THAT "PETITIONER'S CONSTITUTIONAL
RIGHTS WERE VIOLATED BY THE COURT'S ALLEGED REFUSAL TO APPOINT COUNSEL
IN HIS BEHALF," AND THE STATE SUPREME COURT NOTED THAT THE RECORD WAS
SILENT AS TO ANY REQUEST.  WE HELD THAT WHEN THE CONSTITUTION GRANTS
PROTECTION AGAINST CRIMINAL PROCEEDINGS WITHOUT THE ASSISTANCE OF
COUNSEL, COUNSEL MUST BE FURNISHED "WHETHER OR NOT THE ACCUSED
REQUESTED THE APPOINTMENT OF COUNSEL.  UVEGES V. PENNSYLVANIA, 335 U.S.
437, 441."  365 U.S., AT 111, N. 1.  SEE RICE V. OLSON, SUPRA, AT 788;
GIBBS V. BURKE, SUPRA, AT 780. 

HOWEVER, THE FLORIDA SUPREME COURT MAY NOT HAVE MEANT THAT THE
CONSTITUTIONAL RIGHT TO COUNSEL DEPENDS UPON A FORMAL REQUEST.  THE
COURT MAY HAVE MEANT THAT FROM THE VERY FACT THAT NO COUNSEL WAS
PRESENT, IT WOULD BE ASSUMED THAT THE TRIAL JUDGE MADE AN OFFER OF
COUNSEL WHICH THE PETITIONER DECLINED.  (FN9)  OR, IT MAY HAVE MEANT
THAT IT WOULD ASSUME SIMPLY THAT PETITIONER KNEW OF HIS RIGHT TO
COUNSEL AND WAS WILLING TO FOREGO IT.  OF COURSE, THE VALIDITY OF SUCH
PRESUMPTIONS IS IMMEDIATELY CALLED IN QUESTION BECAUSE THE ACCUSED HAS
NO WAY OF PROTECTING AGAINST THEM DURING HIS TRIAL EXCEPT BY REQUESTING
COUNSEL - A FORMALITY UPON WHICH WE HAVE JUST SAID HIS RIGHT MAY NOT BE
MADE TO DEPEND.  NOR IS IT AN ANSWER TO SAY THAT HE MAY COUNTER SUCH
PRESUMPTIONS ON COLLATERAL ATTACK BY SHOWING - IF HE CAN - THAT HE HAD
NOT IN FACT AGREED, OR BEEN WILLING, TO BE TRIED WITHOUT COUNSEL.  TO
CAST SUCH A BURDEN ON THE ACCUSED IS WHOLLY AT WAR WITH THE STANDARD OF
PROOF OF WAIVER OF THE RIGHT TO COUNSEL WHICH WE LAID DOWN IN JOHNSON
V. ZERBST, 304 U.S. 458, 464-465: 

"IT HAS BEEN POINTED OUT THAT 'COURTS INDULGE EVERY REASONABLE
PRESUMPTION AGAINST WAIVER' OF FUNDAMENTAL CONSTITUTIONAL RIGHTS AND
THAT WE 'DO NOT PRESUME ACQUIESCENCE IN THE LOSS OF FUNDAMENTAL
RIGHTS.' 

     *         *         *         *         * 

"THE CONSTITUTIONAL RIGHT OF AN ACCUSED TO BE REPRESENTED BY COUNSEL
INVOKES, OF ITSELF, THE PROTECTION OF A TRIAL COURT, IN WHICH THE
ACCUSED - WHOSE LIFE OR LIBERTY IS AT STAKE - IS WITHOUT COUNSEL.  THIS
PROTECTING DUTY IMPOSES THE SERIOUS AND WEIGHTY RESPONSIBILITY UPON THE
TRIAL JUDGE OF DETERMINING WHETHER THERE IS AN INTELLIGENT AND
COMPETENT WAIVER BY THE ACCUSED.  WHILE AN ACCUSED MAY WAIVE THE RIGHT
TO COUNSEL, WHETHER THERE IS A PROPER WAIVER SHOULD BE CLEARLY
DETERMINED BY THE TRIAL COURT, AND IT WOULD BE FITTING AND APPROPRIATE
FOR THAT DETERMINATION TO APPEAR UPON THE RECORD." 

WE HAVE HELD THE PRINCIPLES DECLARED IN JOHNSON V. ZERBST EQUALLY
APPLICABLE TO ASSERTED WAIVERS OF THE RIGHT TO COUNSEL IN STATE
CRIMINAL PROCEEDINGS.  IN RICE V. OLSON, SUPRA, THE PETITIONER HAD
PLEADED GUILTY TO A BURGLARY CHARGE.  HE DID NOT CLAIM THAT HE HAD
REQUESTED COUNSEL, BUT ALLEGED THAT HE HAD NOT BEEN ADVISED OF HIS
RIGHT TO THE ASSISTANCE OF COUNSEL AND THAT HE HAD NOT WAIVED THAT
RIGHT.  IN AFFIRMING THE DENIAL OF RELIEF, THE STATE SUPREME COURT
WROTE THAT "'IT IS NOT NECESSARY THAT THERE BE A FORMAL WAIVER; AND A
WAIVER WILL ORDINARILY BE IMPLIED WHERE ACCUSED APPEARS WITHOUT COUNSEL
AND FAILS TO REQUEST THAT COUNSEL BE ASSIGNED TO HIM, PARTICULARLY
WHERE ACCUSED VOLUNTARILY PLEADS GUILTY.'"  WE HELD THAT EVEN WHEN
THERE HAD BEEN A GUILTY PLEA SUCH AN IMPLICATION, TREATED AS A
CONCLUSIVE PRESUMPTION, WAS "INCONSISTENT WITH OUR INTERPRETATION OF
THE SCOPE OF THE FOURTEENTH AMENDMENT," AND THAT "A DEFENDANT WHO
PLEADS GUILTY IS ENTITLED TO THE BENEFIT OF COUNSEL, AND A REQUEST FOR
COUNSEL IS NOT NECESSARY."  324 U.S., AT 788.  HOWEVER, WE RECOGNIZED
IN RICE V. OLSON THAT, ALTHOUGH THE FOURTEENTH AMENDMENT WOULD NOT
COUNTENANCE ANY PRESUMPTION OF WAIVER FROM THE APPEARANCE OF THE
ACCUSED WITHOUT COUNSEL AND THE SILENCE OF THE RECORD AS TO A REQUEST,
THE ENTRY OF THE GUILTY PLEA MIGHT HAVE RAISED A FACT ISSUE AS TO
WHETHER THE ACCUSED DID NOT INTELLIGENTLY AND UNDERSTANDINGLY WAIVE HIS
CONSTITUTIONAL RIGHT.  WE HELD THAT A HEARING WAS REQUIRED SINCE THE
FACTS WERE IN DISPUTE.  IN THE PRESENT CASE, HOWEVER, THERE WAS NO
GUILTY PLEA, AND THE RETURN TO THE WRIT DOES NOT ALLEGE AN AFFIRMATIVE
WAIVER.  (FN10)  THEREFORE, THERE IS NO DISPUTED FACT QUESTION
REQUIRING A HEARING.  PRESUMING WAIVER FROM A SILENT RECORD IS
IMPERMISSIBLE.  THE RECORD MUST SHOW, OR THERE MUST BE AN ALLEGATION
AND EVIDENCE WHICH SHOW, THAT AN ACCUSED WAS OFFERED COUNSEL BUT
INTELLIGENTLY AND UNDERSTANDINGLY REJECTED THE OFFER.  ANYTHING LESS IS
NOT WAIVER. 

NEITHER BUTE V. ILLINOIS, 333 U.S. 640, NOR MOORE V. MICHIGAN, SUPRA,
IS IN ANY WAY INCONSISTENT WITH OUR HOLDING AND DISPOSITION HERE.  IN
BUTE, IN WHICH THE PETITIONER PLEADED GUILTY WITHOUT HAVING REQUESTED
COUNSEL, IT WAS ALLEGED THAT HE HAD NOT BEEN ADVISED OF HIS RIGHT TO
COUNSEL.  THE COURT HELD THAT THERE HAD BEEN NO DENIAL OF A
CONSTITUTIONAL RIGHT, BUT IT EXPRESSLY DISCLAIMED A WAIVER RATIONALE. 
IT DECIDED SIMPLY THAT THE NATURE OF THE CHARGE AND THE CIRCUMSTANCES
ATTENDING THE RECEPTION OF THE GUILTY PLEA, AS RECITED IN THAT RECORD,
WERE NOT SUCH AS TO CALL INTO PLAY ANY CONSTITUTIONALLY PROTECTED RIGHT
TO COUNSEL.  IN MOORE, THE RECORD SHOWED CLEARLY THAT THE PETITIONER
HAD EXPRESSLY DECLINED AN OFFER OF COUNSEL BY THE TRIAL JUDGE, AND WE
HELD THAT THE ACCUSED HAD TO SHOW BY A PREPONDERANCE OF THE EVIDENCE
THAT HIS ACQUIESCENCE WAS NOT SUFFICIENTLY UNDERSTANDING AND
INTELLIGENT TO AMOUNT TO AN EFFECTIVE WAIVER.  BUT NO SUCH BURDEN CAN
BE IMPOSED UPON AN ACCUSED UNLESS THE RECORD - OR A HEARING, WHERE
REQUIRED - REVEALS HIS AFFIRMATIVE ACQUIESCENCE.  WHERE, AS IN THIS
CASE, THE CONSTITUTIONAL INFIRMITY OF TRIAL WITHOUT COUNSEL IS
MANIFEST, AND THERE IS NOT EVEN AN ALLEGATION, MUCH LESS A SHOWING, OF
AFFIRMATIVE WAIVER, THE ACCUSED IS ENTITLED TO RELIEF FROM HIS
UNCONSTITUTIONAL CONVICTION.    THE JUDGMENT OF THE FLORIDA SUPREME
COURT IS REVERSED AND THE CAUSE IS REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  FLA. STAT., 1959, SEC. 741.22: 

"PUNISHMENT FOR INCEST.  - PERSONS WITHIN THE DEGREES OF
CONSANGUINITY WITHIN WHICH MARRIAGES ARE PROHIBITED OR DECLARED BY LAW
TO BE INCESTUOUS AND VOID, WHO INTERMARRY OR COMMIT ADULTERY OR
FORNICATION WITH EACH OTHER, SHALL BE PUNISHED BY IMPRISONMENT IN THE
STATE PRISON NOT EXCEEDING TWENTY YEARS, OR IN THE COUNTY JAIL NOT
EXCEEDING ONE YEAR." 

FLA. STAT., 1959, SEC. 800.04:    "LEWD, LASCIVIOUS OR INDECENT
ASSAULT OR ACT UPON OR IN PRESENCE OF CHILD.  - ANY PERSON WHO SHALL
HANDLE, FONDLE OR MAKE AN ASSAULT UPON ANY MALE OR FEMALE CHILD UNDER
THE AGE OF FOURTEEN YEARS IN A LEWD, LASCIVIOUS OR INDECENT MANNER, OR
WHO SHALL KNOWINGLY COMMIT ANY LEWD OR LASCIVIOUS ACT IN THE PRESENCE
OF SUCH CHILD, WITHOUT INTENT TO COMMIT RAPE WHERE SUCH CHILD IS
FEMALE, SHALL BE DEEMED GUILTY OF A FELONY AND PUNISHED BY IMPRISONMENT
IN THE STATE PRISON OR COUNTY JAIL FOR NOT MORE THAN TEN YEARS." 

FLA. STAT., 1959, SEC. 801.02: 

"DEFINITIONS. - AN OFFENSE UNDER THE PROVISIONS OF THIS CHAPTER SHALL
INCLUDE ATTEMPTED RAPE, SODOMY, ATTEMPTED SODOMY, CRIMES AGAINST
NATURE, ATTEMPTED CRIMES AGAINST NATURE, LEWD AND LASCIVIOUS BEHAVIOR,
INCEST AND ATTEMPTED INCEST, ASSAULT (WHEN A SEXUAL ACT IS COMPLETED OR
ATTEMPTED) AND ASSAULT AND BATTERY (WHEN A SEXUAL ACT IS COMPLETED OR
ATTEMPTED), WHEN SAID ACTS ARE COMMITTED AGAINST, TO OR WITH A PERSON
FOURTEEN YEARS OF AGE OR UNDER." 

FN2  IN THE COPELAND CASE, SUPRA, THE FLORIDA SUPREME COURT HELD THAT
THE INCLUSION OF RAPE IN THE CHILD MOLESTER ACT - WITH ITS ATTENDANT
ALTERATION IN THE CONSEQUENCES OF THAT OFFENSE WHEN COMMITTED AGAINST A
CHILD OF 14 OR YOUNGER - RAN AFOUL OF THE STATE CONSTITUTION BECAUSE
THE ACT EMBRACED 11 DISTINCT CRIMES SEPARATELY DEALT WITH IN OTHER
STATUTES, BECAUSE THE ACT FAILED TO SET FORTH AT LENGTH THE GENERAL
RAPE PROVISIONS WHICH WERE PRO TANTA AMENDED, AND BECAUSE THE TITLE OF
THE ACT FAILED TO GIVE NOTICE THAT THE CONSEQUENCES OF RAPE HAD BEEN
CHANGED.  BUT SEE BUCHANAN V. STATE, 111 SO. 2D 51, IN WHICH THE
DISTRICT COURT OF APPEAL UPHELD THE CHILD MOLESTER ACT AS APPLIED TO
LEWD AND LASCIVIOUS CONDUCT. 

FN3  FLORIDA LAWS, E.S. 1957, C. 57-1990. 

FN4  FLA. STAT., 1959, SEC. 801.03(1): 

"POWERS AND DUTIES OF JUDGE AFTER CONVICTIONS. 

"(1)  WHEN ANY PERSON HAS BEEN CONVICTED OF AN OFFENSE WITHIN THE
MEANING OF THIS CHAPTER, IT SHALL BE WITHIN THE POWER AND JURISDICTION
OF THE TRIAL JUDGE TO: 

"(A)  SENTENCE SAID PERSON TO A TERM OF YEARS NOT TO EXCEED TWENTY
FIVE YEARS IN THE STATE PRISON AT RAIFORD. 

"(B)  COMMIT SUCH PERSON FOR TREATMENT AND REHABILITATION TO THE
FLORIDA STATE HOSPITAL, OR TO THE HOSPITAL OR THE STATE INSTITUTION TO
WHICH HE WOULD BE SENT AS PROVIDED BY LAW BECAUSE OF HIS AGE OR COLOR
PROVIDED THE HOSPITAL OR INSTITUTION POSSESSES A MAXIMUM SECURITY
FACILITY AS PRESCRIBED BY THE BOARD OF COMMISSIONERS OF STATE
INSTITUTIONS.  WHEN, AS PROVIDED FOR IN THIS LAW, THERE SHALL HAVE BEEN
CREATED AND ESTABLISHED A FLORIDA RESEARCH AND TREATMENT CENTER THEN
THE TRIAL JUDGE SHALL, INSTEAD OF COMMITTING A PERSON TO THE FLORIDA
STATE HOSPITAL, COMMIT SUCH PERSON INSTEAD TO THE FLORIDA RESEARCH AND
TREATMENT CENTER.  IN ANY SUCH CASE THE COURT MAY, IN ITS DISCRETION,
STAY FURTHER CRIMINAL PROCEEDINGS OR DEFER THE IMPOSITION OF SENTENCE
PENDING THE DISCHARGE OF SUCH PERSON FROM FURTHER TREATMENT IN
ACCORDANCE WITH THE PROCEDURE AS OUTLINED IN THIS CHAPTER." 

FLA. STAT., 1959, SEC. 801.08: 

"EXECUTION OF JUDGMENT MAY BE SUSPENDED; PROBATION; REQUIREMENT. 

"(1)  THE TRIAL JUDGE UNDER WHOSE JUDRISDICTION A CONVICTION IS
OBTAINED MAY SUSPEND THE EXECUTION OF JUDGMENT AND PLACE THE DEFENDANT
UPON PROBATION. 

"(2)  THE TRIAL COURT PLACING A DEFENDANT ON PROBATION MAY AT ANY
TIME REVOKE THE ORDER PLACING SUCH DEFENDANT ON PROBATION AND IMPOSE
SUCH SENTENCE OR COMMITMENT AS MIGHT HAVE BEEN IMPOSED AT THE TIME OF
CONVICTION. 

"(3)  NO DEFENDANT SHALL BE PLACED ON PROBATION OR CONTINUE ON
PROBATION UNTIL THE COURT IS SATISFIED THAT THE DEFENDANT WILL TAKE
REGULAR PSYCHIATRIC, PSYCHOTHERAPEUTIC OR COUNSELING HELP, AND THE
INDIVIDUAL HELPING THE DEFENDANT SHALL MAKE WRITTEN REPORTS AT
INTERVALS OF NOT MORE THAN SIX MONTHS TO THE COURT AND THE PROBATION
OFFICER IN CHARGE OF THE CASE.  THE COSTS, FEES AND CHARGES FOR
TREATMENT OF A DEFENDANT ON PROBATION SHALL NOT BE A CHARGE OF THE
COUNTY WHERE THE DEFENDANT WAS TRIED." 

FN5  FLA. STAT., 1959, SEC. 801.10: 

"EXAMINATION; PETITION FOR, COURT ORDER.  - WHEN ANY PERSON IS
CHARGED WITH AN OFFENSE WITHIN THE PURVIEW OF THIS CHAPTER, SAID PERSON
MAY PETITION THE COURT FOR A PSYCHIATRIC AND PSYCHOLOGICAL EXAMINATION
AS HERETOFORE SET OUT AND THE WRITTEN REPORT SHALL BE FILED WITH THE
CLERK OF THE COURT HAVING JURISDICTION OF THE OFFENSE FOR THE PURPOSE
OF ASSISTING THE COURT IN THE TRIAL OF THE CASE.  THE COURT MAY, OF ITS
OWN INITIATIVE, OR UPON PETITION OF AN INTERESTED PERSON, ORDER SUCH
EXAMINATION AND REPORT AS HERETOFORE SET OUT." 

FN6  EMPHASIS IN ORIGINAL. 

FN7  THE WIFE TESTIFIED:  "WE TRIED TO BE FIRM WITH THEM, BUT IT
SEEMED LIKE THE MORE FIRM WE GOT, THESE TWO OLDER KIDS, THEY COULDN'T
STAND THE PRESSURE, SO THEY WOULD, EVERY TIME THAT THEIR DADDY WOULD
GET AFTER THEM OR SOMETHING OR OTHER ABOUT SOME OF THEIR DOINGS, WELL,
THAT OLDEST BOY WOULD SAY, 'WELL, DADDY, YOU WILL SURE REGRET IT.  I
WILL GET EVEN WITH YOU ONE WAY OR THE OTHER,' AND ALSO THE GIRL WOULD
GET MAD AND FLIRTIFIED AND SHE WOULD ALMOST HAVE THE SAME OPINION." 

THE ENTIRE CROSS-EXAMINATION OF BOTH WITNESSES BY PETITIONER AND BY
HIS WIFE, WHO WAS A CODEFENDANT, IS AS FOLLOWS: 

"CROSS EXAMINATION BY MR. WILLARD CARNLEY: 

"Q.  CAROL JEAN, YOU SAY YOUR MOTHER, SHE WENT AND MADE ARRANGEMENTS
TO GET A CASKET FOR YOUR SISTER? 

"A.  YES. 

"Q.  YOU ARE RIGHT SURE NOW THAT SHE DID? 

"A.  I AM SURE. 

"Q.  WELL, I WILL TELL THE COURT, MY WIFE WAS OUT AT MR. JOE GAYFER'S
HOUSE: 

"THE COURT:  WAIT A MINUTE, SIR, YOU ARE TESTIFYING.  YOU WILL HAVE A
CHANCE TO TESTIFY WHEN THE STATE RESTS.  ANY QUESTIONS YOU WISH TO ASK
YOUR DAUGHTER, YOU ARE WELCOME TO DO IT. 

"CROSS EXAMINATION BY MRS. PEARL CARNLEY: 

"Q.  CAROL JEAN, DON'T YOU RECALL AFTER YOU GOT AGE OF MATURITY THAT
MOTHER TRIED TO TELL YOU RIGHT FROM WRONG AND ALWAYS TEACH YOU RIGHT
FROM WRONG? 

"A.  YES, YOU HAVE TAUGHT ME RIGHT FROM WRONG. 

"THEREUPON THE WITNESS WAS EXCUSED." 

"CROSS EXAMINATION BY MRS. CARNLEY: 

"Q.  J.W., AT THIS PERIOD OF TIME, DID YOU REALIZE WHENEVER WE WAS UP
THERE AT CENTURY OF YOUR DAD'S SICKNESS FROM THE TIME WE MOVED UP THERE
UNTIL IT WAS SPRINGTIME, AND AFTER HE WAS SICK FROM HIS STOMACH THAT HE
TAKEN A SERIOUS ATTACK DOWN BY REASON OF HIS EMPLOYMENT? 

"A.  YES, I REALIZE HE SAID HE WAS SICK.  HE WAS SUPPOSED TO BE
SICK.  I KNOW THAT. 

"THEREUPON THE WITNESS WAS EXCUSED." 

FN8  FOR THIS REASON, THERE IS NO OCCASION TO HOLD A HEARING IN THIS
CASE TO SETTLED THE FACT ISSUE RAISED BY THE PETITION AND RETURN AS TO
WHETHER THE PETITIONER REQUESTED COUNSEL. 

FN9  OR THAT THE TRIAL JUDGE WAS JUSTIFIED IN BELIEVING THAT THE
ACCUSED KNEW PERFECTLY WELL OF HIS RIGHT TO COUNSEL, AND THAT IT WAS
UNNECESSARY TO MAKE AN EXPLICIT OFFER AND TO SECURE THE ACCUSED'S
REJECTION OF THE OFFER. 

FN10  PETITONER'S ALLEGATION THAT HE REQUESTED COUNSEL IS, OBVIOUSLY,
TANTAMOUNT TO A DENIAL OF WAIVER.  THE RETURN'S DENIAL OF A REQUEST IS
NOT, HOWEVER, FOR REASONS ALREADY CANVASSED, THE EQUIVALENT OF AN
ALLEGATION OF WAIVER. 

THE RETURN ALLEGED THAT THE TRIAL JUDGE INSTRUCTED PETITIONER AS TO
HIS CONSTITUTIONAL RIGHTS, BUT HIS ALLEGATION CLAIMED SUPPORT IN THE
TRANSCRIPT, INSPECTION OF WHICH REVEALS NO INSTRUCTION AS TO ANY
CONSTITUTIONAL RIGHT EXCEPT THE RIGHT NOT TO TESTIFY. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE WHITE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN THE COURT'S JUDGMENT OF REVERSAL AND AGREE FOR THE
REASONS STATED IN ITS OPINION THAT PETITIONER WAS, EVEN UNDER THE
CONSTITUTIONAL DOCTRINE ANNOUNCED IN BETTS V. BRADY, 316 U.S. 455,
ENTITLED TO BE REPRESENTED BY COUNSEL.  THAT CASE, DECIDED IN 1942,
HELD THAT AN INDIGENT DEFENDANT CHARGED WITH CRIME IN A STATE COURT DID
NOT HAVE A RIGHT UNDER THE FEDERAL CONSTITUTION TO BE PROVIDED WITH
COUNSEL UNLESS THIS COURT COULD SAY "BY AN APPRAISAL OF THE TOTALITY OF
FACTS IN A GIVEN CASE" THAT THE REFUSAL TO PROVIDE COUNSEL FOR THE
PARTICULAR DEFENDANT CONSTITUTED "A DENIAL OF FUNDAMENTAL FAIRNESS,
SHOCKING TO THE UNIVERSAL SENSE OF JUSTICE  ...  ."  ID., AT 462.  I
DISSENTED FROM THE COURT'S DENIAL OF COUNSEL AND ITS ANNOUNCEMENT OF
WHAT I CONSIDERED TO BE SUCH AN IMPOSSIBLY VAGUE AND UNPREDICTABLE
STANDARD.  AMONG OTHER GROUNDS I THOUGHT THE DEFENDANT IN THAT CASE
ENTITLED TO COUNSEL BECAUSE OF MY BELIEF THAT THE FOURTEENTH AMENDMENT
MAKES APPLICABLE TO THE STATES THE SIXTH AMENDMENT'S GUARANTEE THAT "IN
ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL  ... HAVE THE ASSISTANCE
OF COUNSEL FOR HIS DEFENCE."  THAT IS STILL MY VIEW. 

TWENTY YEARS' EXPERIENCE IN THE STATE AND FEDERAL COURTS WITH THE
BETTS V. BRADY RULE HAS DEMONSTRATED ITS BASIC FAILURE AS A
CONSTITUTIONAL GUIDE.  INDEED, IT HAS SERVED NOT TO GUIDE BUT TO
CONFUSE THE COURTS AS TO WHEN A PERSON PROSECUTED BY A STATE FOR CRIME
IS ENTITLED TO A LAWYER.  LITTLE MORE COULD BE EXPECTED, HOWEVER, OF A
STANDARD WHICH IMPOSES UPON COURTS NOTHING MORE THAN THE PERPLEXING
RESPONSIBILITY OF APPOINTING LAWYERS FOR AN ACCUSED WHEN A TRIAL JUDGE
BELIEVES THAT A FAILURE TO DO SO WOULD BE "SHOCKING TO THE UNIVERSAL
SENSE OF JUSTICE."  TO BE SURE, IN RECENT YEARS THIS COURT HAS BEEN
FAIRLY CONSISTENT IN ASSURING INDIGENT DEFENDANTS THE RIGHT TO
COUNSEL.  AS THE YEARS HAVE GONE ON WE HAVE BEEN COMPELLED EVEN UNDER
THE BETTS RULE TO REVERSE MORE AND MORE STATE CONVICTIONS EITHER FOR
NEW TRIAL OR FOR HEARING TO DETERMINE WHETHER COUNSEL HAD BEEN
ERRONEOUSLY DENIED (FN1) - A RESULT THAT IN MY JUDGMENT IS DUE TO A
GROWING RECOGNITION OF THE FACT THAT OUR BILL OF RIGHTS IS CORRECT IN
ASSUMING THAT NO LAYMAN SHOULD BE COMPELLED TO DEFEND HIMSELF IN A
CRIMINAL PROSECUTION.  BUT ALL DEFENDANTS WHO HAVE BEEN CONVICTED OF
CRIME WITHOUT THE BENEFIT OF COUNSEL CANNOT POSSIBLY BRING THEIR CASES
TO US.  AND ONE NEED ONLY LOOK AT THE RECORDS OF THE RIGHT-TO-COUNSEL
CASES SINCE BETTS V. BRADY IN BOTH STATE AND FEDERAL COURTS TO
UNDERSTAND THE CAPRICIOUSNESS WITH WHICH THE "SHOCKING TO THE UNIVERSAL
SENSE OF JUSTICE" STANDARD BESTOWS ITS PROTECTION UPON PERSONS ACCUSED
OF CRIME.  (FN2)  I THINK THAT NOW IS THE TIME TO ABANDON THIS VAGUE,
FICKLE STANDARD FOR DETERMINING THE RIGHT TO COUNSEL OF A PERSON
PROSECUTED FOR A CRIME IN A STATE COURT.  WE CAN DO THAT BY RECOGNIZING
THAT DEFENDANTS IN STATE COURTS HAVE BY REASON OF THE FOURTEENTH
AMENDMENT THE SAME UNEQUIVOCAL RIGHT TO COUNSEL AS DEFENDANTS IN
FEDERAL COURTS HAVE BEEN HELD TO HAVE BY VIRTUE OF THE SIXTH
AMENDMENT.  JOHNSON V. ZERBST, 304 U.S. 458.  FOR THESE AND MAY OTHER
REASONS, INCLUDING THOSE SET OUT IN MCNEAL V. CULVER, 365 U.S. 109,
117, BY MR. JUSTICE DOUGLAS AND JOINED IN BY MR. JUSTICE BRENNAN, I
WOULD OVERRULE BETTS V. BRADY IN THIS CASE.  IN SO DOING WE WOULD
SIMPLY RETURN TO THE HOLDING OF THIS COURT IN POWELL V. ALABAMA, 287
U.S. 45, 68-69, WHERE IT WAS STATED WITH REFERENCE TO PROSECUTION FOR
CRIME IN THE STATE COURTS THAT THE "  ... RIGHT TO BE HEARD WOULD BE,
IN MANY CASES, OF LITTLE AVAIL IF IT DID NOT COMPREHEND THE RIGHT TO BE
HEARD BY COUNSEL."  I AM AWARE THAT THIS STATEMENT WAS MADE IN A
CAPITAL CASE, BUT THE FOURTEENTH AMENDMENT PROTECTS LIFE, LIBERTY, AND
PROPERTY AND I WOULD HOLD THAT DEFENDANTS PROSECUTED FOR CRIME ARE
ENTITLED TO COUNSEL WHETHER IT IS THEIR LIFE, THEIR LIBERTY, OR THEIR
PROPERTY WHICH IS AT STAKE IN A CRIMINAL PROSECUTION. 

FN1  CHEWNING V. CUNNINGHAM, 368 U.S. 443; HAMILTON V. ALABAMA, 368
U.S. 52; MCNEAL V. CULVER, 365 U.S. 109; HUDSON V. NORTH CAROLINA, 363
U.S. 697; CASH V. CULVER, 358 U.S. 633; MOORE V. MICHIGAN, 355 U.S.
155; HERMAN V. CLAUDY, 350 U.S. 116; MASSEY V. MOORE, 348 U.S. 105;
GIBBS V. BURKE, 337 U.S. 773; UVEGES V. PENNSYLVANIA, 335 U.S. 437;
TOWNSEND V. BURKE, 334 U.S. 736; WADE V. MAYO, 334 U.S. 672; MARINO V.
RAGEN, 332 U.S. 561; DE MEERLEER V. MICHIGAN, 329 U.S. 663; TOMKINS V.
MISSOURI, 323 U.S. 485; WILLIAMS V. KAISER, 323 U.S. 471.  BUT CF.
QUICKSALL V. MICHIGAN, 339 U.S. 660; GRYGER V. BURKE, 334 U.S. 728;
BUTE V. ILLINOIS, 333 U.S. 640; FOSTER V. ILLINOIS, 332 U.S. 134. 

FN2  COMPARE, E.G., FLANSBURG V. KAISER, 55 F. SUPP. 959, AFF'D ON
OTHER GROUNDS, 144 F.2D 917, WITH POWELL V. ALABAMA, 287 U.S. 45;
PARKER V. ELLIS, 258 F.2D 937, WITH MASSEY V. MOORE, 348 U.S. 105;
HENDERSON V. BANNAN, 256 F.2D 363, WITH UNITED STATES EX REL. SAVINI V.
JACKSON, 250 F.2D 349.  NUMEROUS OTHER EXAMPLES COULD OF COURSE BE
CITED INCLUDING THE CONTRAST BETWEEN THE DECISIONS CITED IN NOTE 1 AND
THE LOWER COURT DECISIONS WHICH THEY REVERSED WHICH HAD HELD THAT THE
DENIAL OF COUNSEL HAD NOT BEEN ERRONEOUS UNDER THE BETTS V. BRADY
RULE. 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS, WHILE JOINING THE OPINION
OF THE COURT, ALSO JOIN THIS OPINION. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT AND THE SEPARATE OPINION OF MR.
JUSTICE BLACK, I WISH TO ADD A WORD TO THE REASONS MR. JUSTICE BRENNAN
AND I GAVE IN MCNEAL V. CULVER, 365 U.S. 109, 117-119, FOR OVERRULING
BETTS V. BRADY, 316 U.S. 455.    PETITIONER, AN ADMITTED ILLITERATE,*
WAS FORCED TO TRY HIS CASE TO A SIX-MAN JURY.  THERE IS NOT RECORD OF
THE PROCEEDINGS AT WHICH THE JURY WAS IMPANELED.  THERE IS NOTHING TO
SHOW THAT PETITIONER WAS TOLD OF HIS RIGHT TO CHALLENGE INDIVIDUAL
VENIREMEN, OR THE PANEL AS A WHOLE, OR THAT HE CHALLENGED ANYONE FOR
CAUSE OR EXERCISED ANY OF THE SIX PEREMPTORY CHALLENGES GRANTED HIM BY
FLORIDA LAW.  FLA. STAT., 1959, SEC. 913.08. 

*THE FLORIDA SUPREME COURT DENIED PETITIONER'S APPLICATION FOR A WRIT
OF HABEAS CORPUS WITHOUT A HEARING.  WITH RESPECT TO THE ALLEGATION
THAT BOTH PETITIONER AND HIS WIFE WERE ILLITERATE AND UNABLE TO DEFEND
THEMSELVES, THE COURT ADMITTED THAT THE RECORD SHOWED CONCLUSIVELY THAT
THEY WERE IN FACT ILLITERATE.  IT CONCLUDED, HOWEVER, THAT ILLITERACY
ALONE DID NOT NECESSARILY IMPORT IGNORANCE OF THE ORDINARY THINGS OF
LIFE, SUCH AS HOW TO GET MONEY FROM A BANK.  APPARENTLY CLASSIFYING THE
CONDUCT OF A DEFENSE TO A FELONY CHARGE AS ONE OF THE "COMMONPLACE
THINGS OF LIFE," THE COURT CONCLUDED THERE WAS NO SHOWING PETITIONER OR
HIS WIFE "SUFFERED IN THE SLIGHTEST FROM LACK OF INTELLIGENCE."  123
SO. 2D 249, 251.  (PETITIONER'S WIFE JOINED IN THE PROCEEDINGS BELOW,
BUT IS NOT A PARTY TO THE PETITION FOR CERTIORARI.) 

IT IS CERTAIN THAT HE COULD HAVE MADE NO CHALLENGE TO THE PANEL AS A
WHOLE.  SUCH CHALLENGE MUST BE IN WRITING, FLA. STAT., 1959, SEC.
913.01, AND THE FLORIDA SUPREME COURT TELLS US HE COULD NOT WRITE.  BUT
EVEN IF HE COULD, IT IS DOUBTFUL THAT HE WOULD HAVE BEEN ABLE TO SHOW
AN IMPROPER METHOD OF SELECTION OR EVEN DISCRIMINATION, BECAUSE HE WAS
CONFINED FOR A LENGTHY PERIOD PRIOR TO TRIAL, FIVE MONTHS OF WHICH WERE
ALLEGED TO HAVE BEEN SPENT IN SOLITARY CONFINEMENT.  HE DID NOT HAVE AN
OPPORTUNITY, THEREFORE, TO GATHER THE FACTUAL EVIDENCE NECESSARY TO
SUSTAIN A POSSIBLE CHALLENGE TO THE PANEL.  THE FLORIDA STATUTE,
MOREOVER, EXPLICITLY REQUIRES THAT THE WRITTEN CHALLENGE SPECIFY THE
FACTS ON WHICH IT IS BASED.  IBID. 

HAD PETITIONER BEEN ABLE TO WRITE, AND HAD HE ACCESS TO THE FACTS HE
STILL WOULD NOT, IN ALL PROBABILITY, HAVE BEEN ABLE TO BUILD A LEGAL
ARGUMENT SUFFICIENT TO CHALLENGE THE PANEL.  HE IS A MAN OF LOW
INTELLIGENCE.  SOME OF THE GROUNDS FOR CHALLENGING THE PANEL THAT MIGHT
HAVE BEEN INVOKED BY PETITIONER TURN ON DIFFICULT QUESTIONS OF STATE
LAW, AS WHERE IT IS ALLEGED THAT THE LEGISLATURE HAS PASSED A SPECIAL,
OR LOCAL, LAW PROVIDING FOR THE SUMMONING AND IMPANELING OF GRAND AND
PETIT JURORS.  ARTICLE III, SEC. 20, OF THE FLORIDA CONSTITUTION
PROHIBITS SUCH "SPECIAL" LAWS.  IT IS NOT ALWAYS CLEAR, THOUGH, WHETHER
A PARTICULAR LAW IS "SPECIAL" OR "GENERAL."  SEE, E.G., HYSLER V.
STATE, 132 FLA.  200, 181 SO. 350; 132 FLA. 209, 181 SO. 354; STATE V.
PEARSON, 153 FLA. 314, 14 SO. 2D 565.  THE SOPHISTICATED NATURE OF THE
ARGUMENTS NECESSARY TO ATTACK A LAW AS "SPECIAL" WOULD ALMOST ALWAYS BE
BEYOND THE COMPREHENSION OF ONE UNLEARNED IN THE LAW. 

IN FLORIDA, A PLEA OF ABATEMENT IS THE USUAL MANNER OF TESTING THE
LEGALITY OF A JURY LIST.  IN SOME CASES, A PROCEEDING IN MANDAMUS HAS
BEEN DEEMED A PROPER REMEDY, AS WHERE IT IS CLAIMED THAT THE COUNTY
COMMISSIONERS HAVE ERRED IN THE MANNER IN WHICH THEY SELECTED THE
PANEL.  JACKSON V. JORDAN, 101 FLA. 616, 135 SO. 138.  OFTEN A SIMPLE
ORAL CHALLENGE TO AN INDIVIDUAL JUROR CAN ACHIEVE JUST AS MUCH, AS
WHERE AN ACCUSED CONTENDS A VENIREMAN DOES NOT HAVE THE "QUALIFICATIONS
REQUIRED BY LAW."  FLA. STAT., 1959, SEC. 913.03(1).  YET OBVIOUSLY AN
ILLITERATE CANNOT BE EXPECTED TO KNOW THESE NICETIES OF CRIMINAL
PROCEDURE. 

ASSUMING THAT AN ACCUSED DOES DECIDE TO CHALLENGE PROSPECTIVE
VENIREMEN, EITHER PEREMPTORILY OR FOR CAUSE, HE MUST THEN DECIDE HOW TO
SECURE THE MAXIMUM BENEFIT FROM HIS PEREMPTORY CHALLENGES.  FLORIDA
STATUTES PROVIDE AT LEAST 12 INDEPENDENT GROUNDS FOR A CHALLENGE FOR
CAUSE.  FLA. STAT., 1959, SEC. 913.03.  IGNORANCE OF A GROUND FOR
CHALLENGE IS NOT DEFENSE.  DENMARK V. STATE, 43 FLA. 182, 31 SO. 269;
MCNISH V. STATE, 47 FLA. 69, 36 SO. 176; WEBSTER V. STATE, 47 FLA. 108,
36 SO. 584.   OBJECTIONS TO QUALIFICATIONS OF JURORS NOT RAISED AT THE
TRIAL WILL NOT BE CONSIDERED ON APPEAL.  MCNISH V. STATE, SUPRA; CROSBY
V. STATE, 90 FLA. 381, 106 SO. 741. 

WHERE THE TRIAL COURT EXCUSES A JUROR ON ITS OWN MOTION, THE ACCUSED
HAS A RIGHT TO OBJECT.  THE OBJECTION MUST BE TIMELY MADE, AND THE
GROUNDS THEREFOR CLEARLY STATED.  IT IS TOO LATE TO OBJECT ONCE THE
JUROR HAS BEEN EXCUSED.  ELLIS V. STATE, 25 FLA. 702, 6 SO. 768.  ON
APPEAL, THE ACCUSED MUST BE ABLE TO SHOW THAT THE ACTION OF THE COURT
WAS PREJUDICIAL, OR CONSTITUTED AN ABUSE OF DISCRETION.  WILLIAMS V.
STATE, 45 FLA. 128, 34 SO. 279; PEADON V. STATE, 46 FLA. 124, 35 SO.
204. 

THE SPECIAL DIFFICULTIES FACING AN ACCUSED IN A JURY TRIAL DO NOT END
WITH CHALLENGES TO THE PANEL OR INDIVIDUAL JURORS.  FLORIDA PROHIBITS
THE TRIAL JUDGE FROM COMMENTING ON THE WEIGHT OF THE EVIDENCE, LESTER
V. STATES, 37 FLA. 382, 20 SO. 232; LEAVINE V. STATE, 109 FLA. 447, 147
SO. 897; SEAWARD V. STATE, 59 SO. 2D 529, OR FROM EXPRESSING AN OPINION
THAT THE ACCUSED SHOULD BE CONVICTED, WOOD V. STATE, 31 FLA. 221, 12
SO. 539, LEST HE INFLUENCE THE JURY IN ITS DECISION.  BUT IF HE DID
MAKE SUCH COMMENT, AND THE ACCUSED TOOK NO EXCEPTION, THE ERROR WILL BE
DEEMED WAIVED ON APPEAL (SURRENCY V. STATE, 48 FLA. 59, 37 SO. 575;
SMITH V. STATE, 65 FLA. 56, 61 SO. 120), EXCEPT WHERE THE INTERESTS OF
JUSTICE WOULD NOT BE SERVED.  KELLUM V. STATE, 104 SO. 2D 99 (FLA. CT.
APP. 3D DIST.). 

HEARSAY EVIDENCE TAKES ON ADDED IMPORTANCE IN JURY TRIALS.  IT IS
EXCLUDED IF PREJUDICIAL.  OWENS V. STATE, 65 FLA. 483, 62 SO. 651;
ALVAREZ V. STATE, 75 FLA. 286, 78 SO. 272.  BUT IF ADMITTED WITHOUT
OBJECTION, IT IS GENERALLY REGARDED AS HAVING BEEN RECEIVED BY
CONSENT.  SIMS V. STATE, 59 FLA. 38, 52 SO. 198.  AN OBJECTION AFTER A
QUESTION HAS BEEN ANSWERED IS SOMETIMES HELD TO COME TOO LATE.  SCHLEY
V. STATES, 48 FLA. 53, 37 SO. 518; WILLIAMS V. STATE, 58 FLA. 138, 50
SO. 749; SIMS V. STATE, SUPRA.  YET A MOTION TO STRIKE MAY ACHIEVE THE
SAME RESULT.  DICKENS V. STATE, 50 FLA. 17, 38 SO. 909.  IN A RAPID
FIRE EXCHANGE OF QUESTIONS AND ANSWERS BY THE PROSECUTION AND A
WITNESS, A DEFENDANT WITHOUT THE ASSISTANCE OF COUNSEL WILL OFTENTIME
FIND HIMSELF HELPLESS TO OBJECT OR EVEN TO CONCEIVE GROUNDS ON WHICH AN
OBJECTION TO HEARSAY WILL LIE.  INDEED, WHAT CONSTITUTES HEARSAY IS
ITSELF A DIFFICULT QUESTION, ON WHICH JUDGES MAY NOT ALWAYS AGREE. 
SEE, E.G., ROYAL V. STATE, 127 FLA. 320, 170 SO. 450. 

ONCE THE EVIDENCE IS IN, AN ACCUSED IN FLORIDA HAS THE RIGHT TO HAVE
THE JURY INSTRUCTED ON THE LAW OF THE CASE BEFORE ANY FINAL ARGUMENTS
ARE MADE.  "THE JUDGE'S CHARGE FOLLOWING IMMEDIATELY UPON THE
CONCLUSION OF THE EVIDENCE MAY ENABLE THE JURY TO OBTAIN A CLEARER AND
MORE ACCURATE CONCEPTION OF THEIR DUTIES IN THE PARTICULAR CASE THAN IF
THEY WERE REQUIRED TO WAIT UNTIL AFTER THE ARGUMENT OF COUNSEL TO HEAR
THE LAW OF THE CASE FROM THE JUDGE."  SMITHIE V. STATE, 88 FLA. 70, 76,
101 SO. 276, 278.  THIS RIGHT IS WAIVED BY A FAILURE TO TAKE EXCEPTION
TO THE PROCEDURE ADOPTED BY THE COURT.  DEFECTS IN THE INSTRUCTIONS OF
THE COURT WILL LIKEWISE BE DEEMED WAIVED, WHERE THE ACCUSED FAILS TO
MAKE TIMELY OBJECTION.  WHITE V. STATE, 122 SO. 2D 340 (FLA. CT. APP.
2D DIST.); WILLIAMS V.  STATE, 117 SO. 2D 473. 

INTRICATE PROCEDURAL RULES ARE NOT RESTRICTED TO CRIMINAL TRIALS IN
FLORIDA.  SIMILAR RULES, EQUALLY AS COMPLEX AND CONFUSING TO THE
LAYMAN, MAY BE FOUND IN THE CRIMINAL STATUTES OF THE OTHER STATES.  I
ASSUME THAT THEY MIGHT NOT BE APPLIED WITH THE SAME VIGOR AGAINST A
LAYMAN DEFENDING HIMSELF, AS THEY WOULD AGAINST ONE REPRESENTED BY A
LAWYER.  YET EVEN SO, THE RULE OF BETTS V. BRADY PROJECTED IN A JURY
TRIAL FACES A LAYMAN WITH A LABYRINTH HE CAN NEVER UNDERSTAND NOR
NEGOTIATE. 

AS A RESULT, THE JURY SYSTEM - PRIDE OF THE ENGLISH-SPEAKING WORLD -
BECOMES A TRAP FOR THE LAYMAN BECAUSE HE IS UTTERLY WITHOUT ABILITY TO
MAKE IT SERVE THE ENDS OF JUSTICE. 
..END :























FRIEDBERG V. SILBERGLITT 369 U.S. 525 


NO. 777.  DECIDED APRIL 30, 1962 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


FRIEDBERG V. SILBERGLITT, WARDEN. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














EAGLE V. BENNETT 369 U.S. 525 


NO. 687, MISC.  DECIDED APRIL 30, 1962 - APPEAL DISMISSED; CERTIORARI
DENIED. 


EAGLE ET AL., V. BENNETT, WARDEN. 

APPEAL FROM THE DISTRICT COURT OF LEE COUNTY, IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTUCE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














SIMPSON, DBA MID-SEVEN TRANSPORTATION CO. V. UNITED STATES 369 U.S. 526 



NO. 748.  DECIDED APRIL 30, 1962 - 200 F. SUPP. 372, AFFIRMED. 


SIMPSON, DOING BUSINESS AS MID-SEVEN TRANSPORTATION CO., V. UNITED
STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF IOWA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :










SCHOLLE V. HARE 369 U.S. 429 


NO. 22.  DECIDED APRIL 23, 1962 - REPORTED BELOW:  360 MICH. 1, 104
N.W.2D 63. 


APPELLANT PETITIONED THE SUPREME COURT OF MICHIGAN FOR A WRIT OF
MANDAMUS TO RESTRAIN APPELLEES FROM CONDUCTING A STATE SENATORIAL
ELECTION IN ACCORDANCE WITH A 1952 AMENDMENT TO THE STATE CONSTITUTION
PROVIDING FOR THE ELECTION OF EACH SENATOR FROM A DISTRICT
GEOGRAPHICALLY DESCRIBED IN THE AMENDMENT AND NOT SUBJECT TO CHANGE
BECAUSE OF FLUCTUATIONS IN THE POPULATION.  HE CLAIMED THAT THE
AMENDMENT DENIED HIM EQUAL PROTECTION OF THE LAWS AND DUE PROCESS OF
LAW CONTRARY TO THE FOURTEENTH AMENDMENT.  THE STATE SUPREME COURT
DISMISSED THE PETITION.  HELD:  THE JUDGMENT IS VACATED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN THE LIGHT OF BAKER
V. CARR, ANTE, P. 186. 

SCHOLLE V. HARE, SECRETARY OF STATE OF MICHIGAN, ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT
OF MICHIGAN FOR FURTHER CONSIDERATION IN THE LIGHT OF BAKER V. CARR,
369 U.S. 186. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE CLARK AND MR. JUSTICE STEWART, CONCURRING. 

IF WE WERE ABLE TO READ THE SEVERAL OPINIONS IN THE MICHIGAN SUPREME
COURT THE WAY OUR BROTHER HARLAN DOES, WE WOULD FIND MUCH TO PERSUADE
US THAT THIS CASE SHOULD NOT BE REMANDED.  BUT THE STATE COURT OPINIONS
ARE NOT THAT CLEAR TO US.  A CAREFUL READING OF THE OPINIONS LEAVES US
WITH THE FIXED IMPRESSION THAT ALL BUT THREE MEMBERS OF THE MICHIGAN
COURT WERE CONVINCED THAT, WHATEVER THE UNDERLYING MERITS OF THE
APPELLANT'S EQUAL PROTECTION CLAIM, IT WAS, IN THE WORDS OF ONE OF THE
JUSTICES, "NOT ENFORCIBLE IN THE COURTS."  360 MICH. 1, 112, 104 N.W.2D
63, 121.  IN BAKER V. CARR WE HELD THAT SUCH A CLAIM IS JUDICIALLY
COGNIZABLE.  ACCORDINGLY, WE JOIN IN THE COURT'S ORDER REMANDING THIS
CASE TO THE SUPREME COURT OF MICHIGAN. 

THE PRESENT ORDER OF COURSE REFLECTS NO VIEWS ON THE MERITS OF THE
APPELLANT'S EQUAL PROTECTION CLAIM.  IT MAY WELL TURN OUT THAT THE
ASSERTION OF INVIDIOUS DISCRIMINATION IS NOT BORNE OUT BY THE RECORD. 
TODAY'S ORDER SIMPLY REFLECTS OUR BELIEF THAT THE MICHIGAN SUPREME
COURT SHOULD BE THE FIRST TO CONSIDER THE MERITS OF THE FEDERAL
CONSTITUTIONAL CLAIM, FREE FROM ANY DOUBTS AS TO ITS JUSTICIABILITY. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT REMANDS THIS CASE TO THE SUPREME COURT OF MICHIGAN "FOR
FURTHER CONSIDERATION IN THE LIGHT OF BAKER V. CARR, 369 U.S. 186."  IN
MY OPINION NOTHING DECIDED OR SAID BY THE MAJORITY IN BAKER CASTS ANY
LIGHT UPON, STILL LESS CONTROLS, THE ONLY ISSUE ACTUALLY ADJUDICATED BY
THE MICHIGAN SUPREME COURT IN THE PRESENT CASE.  I THINK THAT EITHER
THIS APPEAL SHOULD BE DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION OR PROBABLE JURISDICTION SHOULD BE NOTED AND THE CASE SET FOR
ARGUMENT. 

THE SOLE AND DISPOSITIVE QUESTION DECIDED BY THE MICHIGAN SUPREME
COURT WAS CONCISELY PUT BY JUSTICE EDWARDS, SPEAKING FOR FOUR MEMBERS
OF THAT EIGHT-MAN COURT: 

"DOES THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
PROHIBIT ANY STATE FROM ENACTING PROVISIONS FOR ELECTORAL DISTRICTS FOR
1 HOUSE OF ITS LEGISLATURE (THE STATE SENATE) WHICH RESULT IN
SUBSTANTIAL INEQUALITY OF POPULAR REPRESENTATION IN THAT HOUSE?" 
SCHOLLE V. SECRETARY OF STATE, 360 MICH. 1, AT 85, 104 N.W.2D 63, AT
107. 

THESE FOUR MEMBERS OF THE STATE COURT CONCLUDED THAT NOTHING IN THE
FOURTEENTH AMENDMENT OR IN THE DECISIONS OF THIS COURT CONSTRUING THE
EQUAL PROTECTION CLAUSE "PROHIBITS A STATE FROM ESTABLISHING SENATE
ELECTORAL DISTRICTS BY GEOGRAPHIC AREAS DRAWN GENERALLY ALONG COUNTY
LINES WHICH RESULT IN SUBSTANTIAL INEQUALITY OF VOTER REPRESENTATION
FAVORING THINLY POPULATED AREAS AS OPPOSED TO POPULOUS ONES."  360
MICH., AT 91, 104 N.W.2D, AT 110.  ACCORDINGLY, THE ORIGINAL PETITION
FOR MANDAMUS FILED IN THE SUPREME COURT OF MICHIGAN WAS DISMISSED. 
(FN1)  THE OPINION OF THE FOUR JUDGES DID NOT SO MUCH AS MENTION
QUESTIONS PERTAINING TO THE "JURISDICTION" OF THE COURT, THE "STANDING"
OF THE APPELLANT, OR THE "JUSTICIABILITY" OF HIS CLAIM. 

APPELLANT FILED A TIMELY NOTICE OF APPEAL TO THIS COURT, AND ON
DOCKETING THE RECORD SUBMITTED A JURISDICTIONAL STATEMENT WHICH SET
FORTH THE QUESTIONS PRESENTED FOR REVIEW.  (FN2)  THESE PAPERS, ALONG
WITH THE MOTION TO DISMISS OR AFFIRM, TAKEN IN LIGHT OF THE PREVAILING
OPINION IN THE MICHIGAN SUPREME COURT, LEAVE NO ROOM FOR DOUBT BUT THAT
THE PRECISE AND SINGLE ISSUE IN THIS CASE IS THE ONE PRESENTED AS
QUESTION IV IN THE JURISDICTIONAL STATEMENT:  "DO THE 1952 AMENDMENTS
TO ART. V, SEC. 2 AND SEC. 4 OF THE MICHIGAN CONSTITUTION, AND THE
IMPLEMENTING LEGISLATION THERETO, OFFEND THE FOURTEENTH AMENDMENT TO
THE U.S. CONSTITUTION, INCLUDING THE DUE-PROCESS AND EQUAL PROTECTION
CLAUSES THEREOF?"  THAT ISSUE IS THE MORE PRECISELY DELINEATED BY THREE
CIRCUMSTANCES:  (1) THE LEGISLATIVE BRANCH WITH WHICH THIS CASE IS
CONCERNED IS THE STATE SENATE (NOT THE ENTIRE STATE LEGISLATURE, AS IN
BAKER V. CARR); (2) THE CHALLENGED ELECTORAL APPORTIONMENT REFLECTS THE
DESIRES OF MICHIGAN'S CITIZENRY, AS EXPRESSED IN A 1952 POPULAR
REFERENDUM (AND IS NOT, AS IN BAKER V. CARR, THE PRODUCT OF LEGISLATIVE
INACTION); (FN3) AND (3) THE PRESENT APPORTIONMENT IS PRESCRIBED BY THE
MICHIGAN CONSTITUTION (AND IS NOT IN CONFLICT WITH THE STATE
CONSTITUTION, AS IN BAKER V. CARR). 

WERE THERE ANYTHING IN THIS COURT'S RECENT DECISION IN BAKER V. CARR
INTIMATING THAT THE CONSTITUTIONAL QUESTION IN THIS CASE OUGHT TO HAVE
BEEN DECIDED DIFFERENTLY THAN IT WAS BY THE MICHIGAN SUPREME COURT, I
WOULD BE CONTENT, FOR REASONS GIVEN IN MY DISSENT IN BAKER (369 U.S.
186, 330), SIMPLY TO NOTE MY DISSENT TO THE COURT'S FAILURE TO DISMISS
THIS APPEAL FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION.  BUT BOTH THE
MAJORITY OPINION IN THE BAKER CASE AND A SEPARATE CONCURRENCE WRITTEN
TO DISPEL ANY "DISTRESSINGLY INACCURATE IMPRESSION OF WHAT THE COURT
DECIDES," 369 U.S., AT 265, WERE AT PAINS TO WARN THAT NOTHING MORE WAS
DECIDED THAN "(A) THAT THE FEDERAL DISTRICT COURT POSSESSED
JURISDICTION OF THE SUBJECT MATTER; (B) THAT A JUSTICIABLE CAUSE OF
ACTION IS STATED UPON WHICH APPELLANTS WOULD BE ENTITLED TO APPROPRIATE
RELIEF; AND (C)  ...  THAT THE APPELLANTS HAVE STANDING TO CHALLENGE
THE TENNESSEE APPORTIONMENT STATUTES."  369 U.S., AT 197-198, 265.  HOW
ANY OF THE EXTENSIVE DISCUSSION ON THESE THREE SUBJECTS IN THE BAKER
MAJORITY OPINION CAN BE THOUGHT TO SHED LIGHT ON THE DISCRETE FEDERAL
CONSTITUTIONAL QUESTION ON WHICH THE PRESENT CASE TURNS - A QUESTION
WHICH WAS INDEED STUDIOUSLY AVOIDED IN THE MAJORITY OPINION IN BAKER -
IS DIFFICULT TO UNDERSTAND. 

MOREOVER, THE REMAND CANNOT BE JUSTIFIED ON THE THEORY THAT BAKER V.
CARR FOR THE FIRST TIME SUGGESTS - ALBEIT SUB SILENTIO - THAT AN
ARBITRARY OR CAPRICIOUS STATE LEGISLATIVE APPORTIONMENT MAY VIOLATE THE
EQUAL PROTECTION CLAUSE.  FOR THE MICHIGAN SUPREME COURT ASSUMED
PRECISELY THAT PROPOSITION AND NONETHELESS SAID OF THE EXISTING
APPORTIONMENT:  "IN THE FACE OF  ...  HISTORY AND ...  PRECEDENT, WE
FIND NO WAY BY WHICH WE CAN SAY THAT THE CLASSIFICATION WE ARE
CONCERNED WITH HEREIN IS 'WHOLLY ARBITRARY,' AND HENCE REPUGNANT TO THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AS THE UNITED
STATES SUPREME COURT HAS CONSTRUED IT TO THIS DATE."  360 MICH., AT
106, 104 N.W.2D, AT 118. 

WITH ALL RESPECT, I CONSIDER THAT IN THUS REMANDING THIS CASE THE
COURT HAS BEEN LESS THAN FORTHRIGHT WITH THE MICHIGAN SUPREME COURT. 
THAT COURT IS LEFT IN THE UNCOMFORTABLE POSITION WHERE IT WILL HAVE TO
CHOOSE BETWEEN ADHERING TO ITS PRESENT DECISION - IN MY VIEW A FAITHFUL
REFLECTION OF THIS COURT'S PAST CASES - OR TREATING THE REMAND AS AN
OBLIQUE INVITATION FROM THIS COURT TO HOLD THAT THE EQUAL PROTECTION
CLAUSE PROHIBITS A STATE FROM CONSTITUTIONALLY FREEZING THE SEATS IN
ITS SENATE, WITH THE EFFECT OF MAINTAINING NUMERICAL VOTING
INEQUALITIES, EVEN THOUGH THAT COURSE REFLECTS THE EXPRESSED WILL OF
THE PEOPLE OF THE STATE.  (NOTE 3, SUPRA.) 

IN MY VIEW THE MATTER SHOULD NOT BE LEFT IN THIS EQUIVOCAL POSTURE. 
BOTH THE ORDERLY SOLUTION OF THIS PARTICULAR CASE, AND THE WIDER
RAMIFICATIONS THAT ARE BOUND TO FOLLOW IN THE WAKE OF BAKER V. CARR,
DEMAND THAT THE COURT COME TO GRIPS NOW WITH THE BASIC ISSUE TENDERED
BY THIS CASE.  THIS SHOULD BE DONE EITHER BY DISMISSING THE APPEAL FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION OR BY NOTING PROBABLE
JURISDICTION AND THEN DECIDING THE ISSUE ONE WAY OR ANOTHER.  FOR
REASONS GIVEN IN MY SEPARATE DISSENT IN THE BAKER CASE, I THINK
DISMISSAL IS THE RIGHT COURSE. 

FN1  ON APPEALS TO THE SUPREME COURT OF MICHIGAN THE RESULT OF AN
EQUALLY DIVIDED COURT IS THAT THE JUDGMENT BELOW IS AFFIRMED.  MICH.
STAT. ANN. SEC. 27.46 (1938).  ALTHOUGH NO STATUTE EXPRESSLY CONTROLS,
IT APPEARS THAT MICHIGAN FOLLOWS THE GENERAL RULE THAT NO AFFIRMATIVE
ACTION MAY BE TAKEN ON AN ORIGINAL PETITION UNLESS A MAJORITY OF THE
JUSTICES CONSIDERING THE CASE VOTE TO GRANT RELIEF.   CONSEQUENTLY THE
EFFECT OF AN EQUAL DIVISION ON AN ORIGINAL PETITION FOR A WRIT OF
MANDAMUS WOULD BE A DISMISSAL OF THE PETITION.  CF.  IN RE HARTLEY, 317
MICH. 441, 27 N.W.2D 48. 

IT APPEARS, MOREOVER, THAT IN FACT FIVE MEMBERS (A MAJORITY) OF THE
MICHIGAN SUPREME COURT CONCURRED AS TO THIS ISSUE.  THE SEPARATE
CONCURRING OPINION OF JUSTICE BLACK OF THAT COURT SHOWS THAT HE ALSO
CONCLUDED "THAT A STATE MAY - UNFETTERED JURIDICALLY BY THE FOURTEENTH
AMENDMENT - DETERMINE WHAT AS A MATTER OF STATE POLICY SHALL BE 'A
PROPER DIFFUSION OF POLITICAL INITIATIVE' AS BETWEEN THE THINLY AND
HEAVILY POPULATED AREAS OF THE STATE."  360 MICH., AT 119-120, 104
N.W.2D, AT 125. 

FN2 THE APPELLANT LISTED THE FOLLOWING AS THE "QUESTIONS PRESENTED": 

"I.  DOES THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION PROHIBIT
THE ESTABLISHMENT BY A STATE OF PERMANENT STATE LEGISLATIVE DISTRICTS
GROSSLY UNEQUAL IN POPULATION? 

"II.  DOES THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION PROHIBIT
THE ESTABLISHMENT BY A STATE OF PERMANENT LEGISLATIVE DISTRICTS LACKING
ANY DISCERNIBLE, RATIONAL, UNIFORM, NON-ARBITRARY AND NON
DISCRIMINATORY BASIS OF REPRESENTATION WHATEVER (SAVE, ONLY, THE
FREEZING BY SUCH ENACTMENT OF LEGISLATIVE MALAPPORTIONMENT THERETOFORE
INVALID UNDER PRIOR CONSTITUTIONAL PROVISIONS)? 

"III.  DOES A SUIT DULY BROUGHT IN A STATE COURT OF OTHERWISE
COMPETENT JURISDICTION, CHALLENGING A STATE CONSTITUTIONAL AMENDMENT
RESPECTING LEGISLATIVE APPORTIONMENT AND/OR DISTRICTING ON GROUNDS OF
ASSERTED CONFLICT WITH THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, PRESENT A JUSTICIABLE CONTROVERSY OF WHICH SUCH COURT HAS
JURISDICTION AND THE POWER TO RENDER RELIEF? 

"IV.  DO THE 1952 AMENDMENTS TO ART. V, SEC. 2 AND SEC. 4 OF THE
MICHIGAN CONSTITUTION, AND THE IMPLEMENTING LEGISLATION THERETO, OFFEND
THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, INCLUDING THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES THEREOF? 

"V.  IF SO, MAY THE MICHIGAN SUPREME COURT, OTHERWISE POSSESSED OF
JURISDICTION, ENTERTAIN AND RENDER RELIEF IN AN ACTION TO INVALIDATE
SUCH ENACTMENTS?" 

THE THIRD OF THESE QUESTIONS DOES ASSERT THE ISSUE OF
"JUSTICIABILITY."  HOWEVER, NO REFERENCE TO "JUSTICIABILITY" APPEARS IN
THE OPINION WRITTEN FOR FOUR JUSTICES OF THE STATE COURT, AND THE
APPELLEES' MOTION TO DISMISS OR AFFIRM COMBINED, ENTIRELY JUSTIFIABLY
IN FACE OF THE RECORD, THE APPELLANT'S FIVE QUESTIONS INTO THE
FOLLOWING SINGLE QUESTION: 

"DOES ARTICLE V, SECTION 2 OF THE MICHIGAN CONSTITUTION, AS AMENDED
BY A MAJORITY VOTE IN THE GENERAL ELECTION OF NOVEMBER 1952, OF THE
PEOPLE OF THE STATE OF MICHIGAN, WHICH PRESCRIBES THAT THE MICHIGAN
SENATE SHALL CONSIST OF 34 MEMBERS, EACH OF WHOM IS TO BE ELECTED FROM
A GEOGRAPHICALLY DESCRIBED AREA, NOT SUBJECT TO CHANGE BECAUSE OF
FLUCTUATIONS IN POPULATION, VIOLATE THE EQUAL PROTECTION OR DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION?" 

FN3  THE DISPUTED PROVISION OF THE MICHIGAN CONSTITUTION, ART. V,
SEC. 2, WHICH ESTABLISHES PERMANENT STATE SENATORIAL DISTRICTS NOT
SUBJECT TO CHANGE BECAUSE OF FLUCTUATIONS IN POPULATION, WAS ADOPTED AS
INITIATIVE PROPOSITION NO. 3 IN A REFERENDUM HELD THROUGHOUT THE STATE
IN NOVEMBER 1952. 
..END :























BYRNES V. WALKER 369 U.S. 436 


NO. 396, MISC.  DECIDED APRIL 23, 1962. 


CERTIORARI GRANTED: JUDGMENT VACATED AND CASE REMANDED FOR A HEARING. 

BYRNES V. WALKER, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
LOUISIANA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR A HEARING.  HERMAN V. CLAUDY, 350 U.S. 116. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :










RAGAN V. COX. 369 U.S. 437 


NO. 634, MISC.  DECIDED APRIL 23, 1962. 


CERTIORARI GRANTED; ORDER OF COURT OF APPEALS VACATED INSOFAR AS IT
DENIES PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS; CASE REMANDED TO
THAT COURT FOR FURTHER PROCEEDINGS. 

RAGAN V. COX, COMMANDANT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

IN ACCORDANCE WITH THE SUGGESTION OF THE SOLICITOR GENERAL AND UPON
CONSIDERATION OF THE ENTIRE RECORD, THE MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND THE PETITION FOR WRIT OF CERTIORARI ARE GRANTED. 
THE ORDER OF THE COURT OF APPEALS, INSOFAR AS IT DENIES PETITIONER
LEAVE TO PROCEED IN FORMA PAUPERIS, IS VACATED AND THE CASE IS REMANDED
TO THAT COURT FOR FURTHER PROCEEDINGS.  SIMCOX V. MADIGAN, 366 U.S.
765. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :




GENERAL FINANCE CORP. V. ARCHETTO 369 U.S. 423 


NO. 705.  DECIDED APRIL 16, 1962.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  - R.I. - , 176 A.2D
73. 


GENERAL FINANCE CORP. V. ARCHETTO. 

APPEAL FROM THE SUPREME COURT OF RHODE ISLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :










BROWN V. KETCH 369 U.S. 423 


NO. 751.  DECIDED APRIL 16, 1962 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


BROWN V. KETCH. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :














MANAGED FUNDS, INC. V. BROUK 369 U.S. 424 


NO. 87.  DECIDED APRIL 16, 1962 - REPORTED BELOW:  286 F.2D 901. 


JUDGMENT VACATED AND CASE REMANDED TO DISTRICT COURT WITH DIRECTIONS
TO DISMISS CAUSE OF ACTION AS TO RESPONDENTS. 

MANAGED FUNDS, INC., V. BROUK ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHT
CIRCUIT. 

PER CURIAM. 

UPON THE SUGGESTION OF MOOTNESS AND THE JOINT MOTION OF COUNSEL TO
VACATE AND REMAND, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND
THE CASE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE
CAUSE OF ACTION AS TO THE RESPONDENTS. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :








SMITH V. BENNETT 369 U.S. 425 


NO. 624, MISC.  DECIDED APRIL 16, 1962 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


SMITH ET AL. V. BENNETT, WARDEN. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :













GRABINA V. UNITED STATES 369 U.S. 426 


NO. 851, MISC.  DECIDED APRIL 16, 1962 - REPORTED BELOW:  295 F.2D 792. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO DISTRICT
COURT FOR RESENTENCING. 

GRABINA V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

IN LIGHT OF THE CONCESSION BY THE SOLICITOR GENERAL AND UPON AN
EXAMINATION OF THE ENTIRE RECORD, THE MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND THE PETITION FOR WRIT OF CERTIORARI ARE GRANTED. 
THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT
FOR RESENTENCING. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :







WARREN V. LARSON 369 U.S. 427 


NO. 920, MISC.  DECIDED APRIL 16, 1962.  - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  132 SO. 2D 177. 


WARREN V. LARSON, STATE TREASURER. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :











NEW YORK, ANONYMOUS V. LABURT 369 U.S. 428 


NO. 926, MISC.  DECIDED APRIL 16, 1962 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: SEE 14 APP. DIV. 2D 560, 218 N.Y.S.2D 738. 


NEW YORK EX REL. ANONYMOUS V. LABURT, STATE HOSPITAL DIRECTOR. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT CERTIORARI SHOULD BE
GRANTED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :










NATIONAL LABOR RELATIONS BOARD V. WALTON MANUFACTURING CO. 369 U.S. 404 



NO. 77.  ARGUED MARCH 19, 1962 - DECIDED APRIL 9, 1962* - 286 F.2D 16;
288 F.2D 630, REVERSED AND CASES REMANDED. 

*TOGETHER WITH NO. 94, NATIONAL LABOR RELATIONS BOARD V. FLORIDA
CITRUS CANNERS COOPERATIVE, ALSO ON CERTIORARI TO THE SAME COURT,
ARGUED MARCH 19-20, 1962. 


THE COURT OF APPEALS FOR THE FIFTH CIRCUIT DENIED ENFORCEMENT OF
ORDERS OF THE NATIONAL LABOR RELATIONS BOARD REQUIRING REINSTATEMENT
WITH BACK PAY OF EMPLOYEES FOUND TO HAVE BEEN DISCRIMINATORILY
DISCHARGED IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT.  IN DOING
SO, THE COURT OF APPEALS APPLIED A SPECIAL RULE WHICH IT HAD ADOPTED
FOR USE IN REINSTATEMENT CASES, TO THE EFFECT THAT THE EMPLOYER'S
STATEMENT UNDER OATH AS TO THE REASON FOR THE DISCHARGE MUST BE
BELIEVED UNLESS HE IS IMPEACHED OR CONTRADICTED.  HELD:  THE JUDGMENTS
ARE REVERSED AND THE CASES ARE REMANDED TO THE COURT OF APPEALS FOR
RECONSIDERATION.  PP.  405-409. 

(A)  A REVIEWING COURT IS NOT BARRED FROM SETTING ASIDE A DECISION OF
THE NATIONAL LABOR RELATIONS BOARD WHEN IT CANNOT CONSCIENTIOUSLY FIND
THAT THE EVIDENCE SUPPORTING THAT DECISION IS SUBSTANTIAL WHEN VIEWED
IN THE LIGHT OF "THE RECORD CONSIDERED AS A WHOLE"; BUT IT MAY NOT
DISPLACE THE BOARD'S CHOICE BETWEEN TWO FAIRLY CONFLICTING VIEWS, EVEN
THOUGH THE COURT WOULD JUSTIFIABLY HAVE MADE A DIFFERENT CHOICE HAD THE
MATTER BEEN BEFORE IT DE NOVO.  UNIVERSAL CAMERA CORP. V. LABOR BOARD,
340 U.S. 474.  P. 405. 

(B)  THERE IS NO PLACE IN THE STATUTORY SCHEME FOR ONE TEST OF THE
SUBSTANTIALITY OF EVIDENCE IN REINSTATEMENT CASES AND ANOTHER TEST IN
OTHER CASES.  PP. 407-408. 

(C)  SINCE THIS COURT IS IN DOUBT AS TO HOW THE COURT OF APPEALS
WOULD HAVE DECIDED THESE TWO CASES IN THE ABSENCE OF ITS OWN SPECIAL
RULE APPLICABLE TO SUCH CASES, THE CASES ARE REMANDED TO THAT COURT FOR
RECONSIDERATION.  PP. 408-409. 

NATIONAL LABOR RELATIONS BOARD V. WALTON MANUFACTURING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THESE CASES ARE HERE ON PETITIONS FOR CERTIORARI TO THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT, WHICH REFUSED ENFORCEMENT OF ORDERS OF
THE BOARD.  WE GRANTED CERTIORARI (368 U.S. 810, 812) BECAUSE THERE WAS
A SEEMING NONCOMPLIANCE BY THAT COURT WITH OUR ADMONITIONS IN UNIVERSAL
CAMERA CORP. V. LABOR BOARD, 340 U.S. 474.  WE THERE SAID THAT WHILE
THE "REVIEWING COURT IS NOT BARRED FROM SETTING ASIDE A BOARD DECISION
WHEN IT CANNOT CONSCIENTIOUSLY FIND THAT THE EVIDENCE SUPPORTING THAT
DECISION IS SUBSTANTIAL, WHEN VIEWED IN THE LIGHT THAT THE RECORD IN
ITS ENTIRETY FURNISHES, INCLUDING THE BODY OF EVIDENCE OPPOSED TO THE
BOARD'S VIEW," IT MAY NOT "DISPLACE THE BOARD'S CHOICE BETWEEN TWO
FAIRLY CONFLICTING VIEWS, EVEN THOUGH THE COURT WOULD JUSTIFIABLY HAVE
MADE A DIFFERENT CHOICE HAD THE MATTER BEEN BEFORE IT DE NOVO."  ID.,
AT 488. 

EACH OF THESE CASES INVOLVES ALLEGED DISCRIMINATORY DISCHARGES OF
EMPLOYEES IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C.
SEC. 158(A)(3); AND IN EACH THE BOARD ORDERED, INTER ALIA,
REINSTATEMENT OF THE WORKERS IN QUESTION WITH BACK PAY.  SEE 124
N.L.R.B. 1331, 124 N.L.R.B. 1182.  IN THAT TYPE OF CASE THE FIFTH
CIRCUIT HAS FASHIONED A SPECIAL RULE THAT WAS ANNOUNCED IN LABOR BOARD
V. TEX-O-KAN FLOUR MILLS CO., 122 F.2D 433, A DECISION RENDERED IN
1941.  IN CASE OF A CEASE-AND-DESIST ORDER, THE COURT SAID THAT IT
GENERALLY "COSTS NO MONEY AND ONLY WARNS TO OBSERVE A RIGHT WHICH
ALREADY EXISTED; EVIDENCE SHORT OF DEMONSTRATION MAY EASILY JUSTIFY
SUCH AN ORDER."  ID., AT 438.  BUT THE COURT ESTABLISHED A MORE ONEROUS
RULE FOR REINSTATEMENT CASES: 

"ORDERS FOR REINSTATEMENT OF EMPLOYEES WITH BACK PAY ARE SOMEWHAT
DIFFERENT.  THEY MAY IMPOVERISH OR BREAK AN EMPLOYER, AND WHILE THEY
ARE NOT IN LAW PENAL ORDERS, THEY ARE IN THE NATURE OF PENALTIES FOR
THE INFRACTION OF LAW.  THE EVIDENCE TO JUSTIFY THEM OUGHT THEREFORE TO
BE SUBSTANTIAL, AND SURMISE OR SUSPICION, EVEN THOUGH REASONABLE, IS
NOT ENOUGH.  THE DUTY TO WEIGH AND TEST THE EVIDENCE IS OF COURSE ON
THE BOARD.  THIS COURT MAY NOT OVERRULE A FACT CONCLUSION SUPPORTED BY
SUBSTANTIAL EVIDENCE, EVEN THOUGH WE DEEM IT INCORRECT UNDER ALL THE
EVIDENCE  ...  . IN THE MATTERS NOW CONCERNING US, THE CONTROLLING AND
ULTIMATE FACT QUESTION IS THE TRUE REASON WHICH GOVERNED THE VERY
PERSON WHO DISCHARGED OR REFUSED TO REEMPLOY IN EACH INSTANCE.  THERE
IS NO DOUBT THAT EACH EMPLOYEE HERE MAKING COMPLAINT WAS DISCHARGED, OR
IF LAID OFF WAS NOT REEMPLOYED, AND THAT HE WAS AT THE TIME A MEMBER OF
THE UNION.  IN EACH CASE SUCH MEMBERSHIP MAY HAVE BEEN THE CAUSE, FOR
THE UNION WAS NOT WELCOMED BY THE PERSONS HAVING AUTHORITY TO DISCHARGE
AND EMPLOY.  IF NO OTHER REASON IS APPARENT, UNION MEMBERSHIP MAY
LOGICALLY BE INFERRED.  EVEN THOUGH THE DISCHARGER DISAVOWS IT UNDER
OATH, IF HE CAN ASSIGN NO OTHER CREDIBLE MOTIVE OR CAUSE, HE NEED NOT
BE BELIEVED.   BUT IT REMAINS TRUE THAT THE DISCHARGER KNOWS THE REAL
CAUSE OF DISCHARGE, IT IS A FACT TO WHICH HE MAY SWEAR.  IF HE SAYS IT
WAS NOT UNION MEMBERSHIP OR ACTIVITY, BUT SOMETHING ELSE WHICH IN FACT
EXISTED AS A GROUND, HIS OATH CANNOT BE DISREGARDED BECAUSE OF
SUSPICION THAT HE MAY BE LYING.  THERE MUST BE IMPEACHMENT OF HIM, OR
SUBSTANTIAL CONTRADICTION, OR IF CIRCUMSTANCES RAISE DOUBTS, THEY MUST
BE INCONSISTENT WITH THE POSITIVE SWORN EVIDENCE ON THE EXACT POINT." 
ID., AT 438-439. 

THIS SPECIAL RULE CONCERNING THE WEIGHT OF THE EVIDENCE NECESSARY TO
SUSTAIN THE BOARD'S ORDERS FOR REINSTATEMENT WITH BACK PAY HAS BEEN
REPEATEDLY FOLLOWED BY THE FIFTH CIRCUIT COURT OF APPEALS IN DECISIONS
REFUSING ENFORCEMENT OF THAT PARTICULAR TYPE OF ORDER.  SEE LABOR BOARD
V. WILLIAMSON-DICKIE MFG. CO., 130 F.2D 260; LABOR BOARD V. ALCO FEED
MILLS, 133 F.2D 419; LABOR BOARD V. INGRAM, 273 F.2D 670; LABOR BOARD
V. ALLURE SHOE CORP., 277 F.2D 231; FROSTY MORN MEATS, INC., V. LABOR
BOARD, 296 F.2D 617. 

THE COURT OF APPEALS IN NO. 77, LABOR BOARD V. WALTON MFG. CO., 286
F.2D 16, 25, IN RESOLVING THE ISSUE OF CREDIBILITY BETWEEN WITNESSES
FOR THE EMPLOYER AND WITNESSES FOR THE UNION, AS TO THE REASONS FOR THE
DISCHARGE OF THE EMPLOYEES IN QUESTION, RELIED ON THE TEST STATED IN
LABOR BOARD V. TEX-O-KAN FLOUR MILLS CO., SUPRA.  IN NO. 94, LABOR
BOARD V. FLORIDA CITRUS CANNERS COOPERATIVE, 288 F.2D 630, DECIDED LESS
THAN THREE MONTHS LATER, THE TEX-O-KAN OPINION WAS NOT MENTIONED.  BUT
ITS TEST OF CREDIBILITY OF WITNESSES SEEMINGLY WAS APPLIED.  288 F.2D,
AT 636-638. 

THERE IS NO PLACE IN THE STATUTORY SCHEME FOR ONE TEST OF THE
SUBSTANTIALITY OF EVIDENCE IN REINSTATEMENT CASES AND ANOTHER TEST IN
OTHER CASES.  LABOR BOARD V. PITTSBURGH S.S. CO., 340 U.S. 498, AND THE
UNIVERSAL CAMERA CORP. CASE, BOTH DECIDED THE SAME DAY, WERE CASES
INVOLVING REINSTATEMENT.  THEY STATE A RULE FOR REVIEW BY COURTS OF
APPEALS IN ALL LABOR BOARD CASES.  THE TEST IN THE TEX-O-KAN OPINION
FOR REINSTATEMENT CASES IS THAT THE EMPLOYER'S STATEMENT UNDER OATH
MUST BE BELIEVED UNLESS THERE IS "IMPEACHMENT OF HIM" OR "SUBSTANTIAL
CONTRADICTION," OR IF THERE ARE "CIRCUMSTANCES" THAT "RAISE DOUBTS"
THEY MUST BE "INCONSISTENT WITH THE POSITIVE SWORN EVIDENCE ON THE
EXACT POINT."  BUT THE EXAMINER - THE ONE WHOSE APPRAISAL OF THE
TESTIMONY WAS DISCREDITED BY THE COURT OF APPEALS IN THE FLORIDA CITRUS
CANNERS COOPERATIVE CASE - SEES THE WITNESSES AND HEARS THEM TESTIFY,
WHILE THE BOARD AND THE REVIEWING COURT LOOK ONLY AT COLD RECORDS.  AS
WE SAID IN THE UNIVERSAL CAMERA CASE: 

"  ...  THE FINDINGS OF THE EXAMINER ARE TO BE CONSIDERED ALONG WITH
THE CONSISTENCY AND INHERENT PROBABILITY OF TESTIMONY.  THE
SIGNIFICANCE OF HIS REPORT, OF COURSE, DEPENDS LARGELY ON THE
IMPORTANCE OF CREDIBILITY IN THE PARTICULAR CASE," 340 U.S., AT 496. 

FOR THE DEMEANOR OF A WITNESS: 

"  ...  MAY SATISFY THE TRIBUNAL, NOT ONLY THAT THE WITNESS'
TESTIMONY IS NOT TRUE, BUT THAT THE TRUTH IS THE OPPOSITE OF HIS STORY;
FOR THE DENIAL OF ONE, WHO HAS A MOTIVE TO DENY, MAY BE UTTERED WITH
SUCH HESITATION, DISCOMFORT, ARROGANCE OR DEFIANCE, AS TO GIVE
ASSURANCE THAT HE IS FABRICATING, AND THAT, IF HE IS, THERE IS NO
ALTERNATIVE BUT TO ASSUME THE TRUTH OF WHAT HE DENIES."   DYER V.
MACDOUGALL, 201 F.2D 265, 269. 

WE ARE IN DOUBT AS TO HOW THE COURT OF APPEALS WOULD HAVE DECIDED
THESE TWO CASES WERE IT RID OF THE YARDSTICK FOR REINSTATEMENT
PROCEEDINGS FASHIONED IN ITS TEX-O-KAN DECISION.  THE REVIEWING
FUNCTION HAS BEEN DEPOSITED, NOT HERE, BUT IN THE COURT OF APPEALS, AS
THE UNIVERSAL CAMERA CASE MAKES CLEAR.  WE "WILL INTERVENE ONLY  ...
WHEN THE STANDARD APPEARS TO HAVE BEEN MISAPPREHENDED OR GROSSLY
MISAPPLIED."  340 U.S., AT 491.  SINCE THE SPECIAL RULE FOR
REINSTATEMENT CASES ANNOUNCED IN THE TEX-O-KAN OPINION APPARENTLY
COLORED THE REVIEW GIVEN BY THE COURT OF APPEALS OF THESE TWO ORDERS,
WE REMAND THE CASES TO IT FOR RECONSIDERATION.  REVERSED. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THESE CASES WERE BROUGHT HERE ON THE CLAIM THAT THE COURT OF APPEALS
HAD EXCEEDED ITS REVIEWING POWER OVER ORDERS OF THE NATIONAL LABOR
RELATIONS BOARD UNDER THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. SEC.
160(E), REQUIRING THAT "THE RECORD CONSIDERED AS A WHOLE" BE
CANVASSED.  THE COURT DOES NOT FIND THAT THE COURT DID NOT ASSESS THE
EVIDENCE, INCLUDING INFERENCES FAIRLY TO BE DRAWN, IN ACCORDANCE WITH
THE SCOPE OF JUDICIAL REVIEW OUTLINED IN UNIVERSAL CAMERA CORP. V.
LABOR BOARD, 340 U.S. 474, AND ITS COMPANION CASE, LABOR BOARD V.
PITTSBURGH S.S. CO., 340 U.S. 498.  BUT IT REMANDS THE CASES TO THE
COURT OF APPEALS BECAUSE OF DOUBT WHETHER THAT COURT WAS IMPROPERLY
INFLUENCED IN ITS DETERMINATIONS BY WHAT IS DEEMED AN ERRONEOUS LEGAL
RULE AS APPLIED IN LABOR BOARD V. TEX-O-KAN FLOUR MILLS CO., 122 F.2D
433. 

I AM CONSTRAINED TO DISAGREE WITH THE COURT'S DISPOSITION OF THESE
CASES ON THREE GROUNDS.  FIRST, THE COURT ASSUMES LEGAL IDENTITY
BETWEEN TWO CASES THAT RAISE ENTIRELY DIFFERENT ISSUES.  SECOND, IN
NEITHER CASE DID THE COURT OF APPEALS APPLY A SPECIAL AND MORE
STRINGENT RULE OF REVIEW IN CASES OF REINSTATEMENT FOR WRONGFUL
DISCHARGE.  FINALLY, I THINK THE TEX-O-KAN RULE, INSOFAR AS IT WAS
APPLIED BELOW IN WALTON AND IS DISAPPROVED HERE, IS IN ACCORD WITH
PRIOR DECISIONS OF THIS COURT AND DOES NOT CONFLICT WITH THE
SUBSTANTIAL EVIDENCE RULE. 

THE COURT OF APPEALS IN WALTON ACCEPTED FINDINGS BY THE TRIAL
EXAMINER AND THE BOARD, 124 N.L.R.B. 1331, THAT RESPONDENTS HAD
VIOLATED SEC. 8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C.
SEC. 158(A)(1), BY SURVEILLANCE OF UNION ACTIVITIES, INTERROGATIONS OF
EMPLOYEES REGARDING THE UNION, AND THREATS OF REPRISALS FOR UNION
ADHERENCE.  BUT THE COURT REFUSED TO ENFORCE AN ORDER TO REINSTATE A
NUMBER OF EMPLOYEES WITH BACK PAY, HOLDING ON ITS READING OF THE SAME
DEAD RECORD THAT THE BOARD HAD BEFORE IT, THAT THERE WAS NOT
SUBSTANTIAL EVIDENCE TO SUPPORT THE BOARD'S FINDINGS THAT THE EMPLOYEES
HAD BEEN DISCHARGED OR LAID OFF BECAUSE OF THEIR UNION MEMBERSHIP AND
ACTIVITIES.  286 F.2D 16. 

IN FLORIDA CITRUS THE EXAMINER AND THE BOARD FOUND THAT THE
RESPONDENT HAD REFUSED TO BARGAIN AS REQUIRED BY SEC. 8(A)(5), AND
THEREFORE THAT EMPLOYEES WHO HAD PARTICIPATED IN A RESULTING STRIKE HAD
BEEN DISCHARGED AND REPLACED IN VIOLATION OF SEC. 8(A)(1) AND (3).  124
N.L.R.B. 1182.  THE COURT OF APPEALS DENIED ENFORCEMENT OF THE ORDER TO
CEASE AND DESIST, TO BARGAIN ON REQUEST, AND TO REINSTATE THE
DISCHARGED EMPLOYEES WITH PAY; IT DID SO BECAUSE IT CONCLUDED, ON
CONSIDERATION OF THE RECORD AS A WHOLE, THAT THE CRITICAL FINDING OF
REFUSAL TO BARGAIN WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.  288 F.2D
630. 

THE COURT TODAY REVERSES BOTH DECISIONS FOR MISAPPLICATION OF THE
STANDARD OF REVIEW SET FORTH IN SEC. 10(E) OF THE NATIONAL LABOR
RELATIONS ACT, 29 U.S.C. SEC. 160(E), AND SEC. 10(E) OF THE
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. SEC. 1009(E), AND ELABORATED IN
UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, THAT "THE FINDINGS
OF THE BOARD WITH RESPECT TO QUESTIONS OF FACT IF SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE SHALL BE
CONCLUSIVE."  THE COURT FINDS THAT THE COURT OF APPEALS MAY HAVE
ERRONEOUSLY ADOPTED A SPECIAL RULE FOR CASES OF REINSTATEMENT FOR
WRONGFUL DISCHARGE, FORBIDDING THE BOARD TO DISCREDIT AN EMPLOYER'S
TESTIMONY AS TO THE REASON FOR DISCHARGE UNLESS HE IS IMPEACHED OR
CONTRADICTED.  THESE DECISIONS ARE REVERSED BECAUSE IN WALTON THE COURT
OF APPEALS "RELIED ON THE TEST STATED IN LABOR BOARD V. TEX-O-KAN FLOUR
MILLS CO.," 122 F.2D 433, AND IN FLORIDA CITRUS, ALTHOUGH TEX-O-KAN WAS
NOT CITED, "ITS TEST OF CREDIBILITY OF WITNESSES SEEMINGLY WAS
APPLIED." 

              1.  TEX-O-KAN. 

THAT CASE CAME BEFORE THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN
1941.  JUDGE SIBLEY, WRITING FOR THE COURT, FOUND AMPLE EVIDENCE TO
SUSTAIN A CEASE-AND-DESIST ORDER AGAINST INTERFERENCE WITH UNION
ACTIVITY:  "A CEASE AND DESIST ORDER ON THIS POINT COSTS NO MONEY AND
ONLY WARNS TO OBSERVE A RIGHT WHICH ALREADY EXISTED; EVIDENCE SHORT OF
DEMONSTRATION MAY EASILY JUSTIFY SUCH AN ORDER."  122 F.2D, AT 438. 
BUT, HE CONTINUED: 

"ORDERS FOR REINSTATEMENT OF EMPLOYEES WITH BACK PAY ARE SOMEWHAT
DIFFERENT.  THEY MAY IMPOVERSIH OR BREAK AN EMPLOYER, AND WHILE THEY
ARE NOT IN LAW PENAL ORDERS, THEY ARE IN THE NATURE OF PENALTIES FOR
THE INFRACTION OF LAW.  THE EVIDENCE TO JUSTIFY THEM OUGHT THEREFORE TO
BE SUBSTANTIAL, AND SURMISE OR SUSPICION, EVEN THOUGH REASONABLE, IS
NOT ENOUGH." 

ACCEPTING THAT THE UNION MEMBERSHIP OF EACH DISCHARGED EMPLOYEE "MAY
HAVE BEEN THE CAUSE, FOR THE UNION WAS NOT WELCOMED BY THE PERSONS
HAVING AUTHORITY TO DISCHARGE AND EMPLOY," THE COURT ENFORCED THE BACK
PAY ORDER IN SEVERAL INSTANCES WHERE NO OTHER REASON FOR DISCHARGE WAS
APPARENT, OR WHERE THE REASON GIVEN WAS REFUTED BY THE FACTS.  BUT
WHERE MANAGEMENT GAVE REASONS FOR THE DISCHARGE THAT WERE NOT
CONTRADICTED BY THE FACTS - THAT A JOB HAD BEEN ABOLISHED, THAT WORK
HAD BEEN INADEQUATELY DONE, THAT AN EMPLOYEE HAD ENGAGED IN IRREGULAR
CONDUCT WITH COMPANY PROPERTY OR FAILED TO REPORT THE TAKING OF SICK
LEAVE - THE COURT HELD THE FINDINGS OF ANTI-UNION ANIMUS TO BE WITHOUT
SUBSTANTIAL SUPPORT: 

"IT REMAINS TRUE THAT THE DISCHARGER KNOWS THE REAL CAUSE OF
DISCHARGE, IT IS A FACT TO WHICH HE MAY SWEAR.  IF HE SAYS IT WAS NOT
UNION MEMBERSHIP OR ACTIVITY, BUT SOMETHING ELSE WHICH IN FACT EXISTED
AS A GROUND, HIS OATH CANNOT BE DISREGARDED BECAUSE OF SUSPICION THAT
HE MAY BE LYING.  THERE MUST BE IMPEACHMENT OF HIM, OR SUBSTANTIAL
CONTRADICTION, OR IF CIRCUMSTANCES RAISE DOUBTS, THEY MUST BE
INCONSISTENT WITH THE POSITIVE SWORN EVIDENCE ON THE EXACT POINT.  THIS
WAS SQUARELY RULED AS TO A JURY IN PENNSYLVANIA R.R. CO. V.
CHAMBERLAIN,  ...  AND THE RULING IS APPLICABLE TO THE BOARD AS FACT
FINDER."  122 F.2D, AT 439. 

                  2.  HISTORY OF TEX-O-KAN IN THE FIFTH CIRCUIT. 
IN NUMEROUS CASES TEX-O-KAN HAS BEEN CITED AND QUOTED BY THE COURT OF
APPEALS FOR ITS VIEW THAT TESTIMONY JUSTIFYING DISCHARGE SHOULD NOT
LIGHTLY BE DISREGARDED.  LABOR BOARD V. GOODYEAR TIRE & RUBBER CO., 129
F.2D 661, 665; LABOR BOARD V. ALCO FEED MILLS, 133 F.2D 419, 421; LABOR
BOARD V. OKLAHOMA TRANSP.  CO., 140 F.2D 509, 510; LABOR BOARD V.
EDINBURG CITRUS ASSN., 147 F.2D 353, 355; LABOR BOARD V. MCGAHEY, 233
F.2D 406, 411-412; LABOR BOARD V. DRENNON FOOD PRODUCTS CO., 272 F.2D
23, 27; LABOR BOARD V. WALTON MFG. CO., 286 F.2D 16, 25; LABOR BOARD V.
ATLANTA COCA-COLA BOTTLING CO., 293 F.2D 300, 306.  SEE ALSO FROSTY
MORN MEATS, INC., V. LABOR BOARD, 296 F.2D 617, 620-621, WHERE TEX-O
KAN WAS NOT CITED.  ON OCCASION TEX-O-KAN HAS ALSO BEEN QUOTED TO
DISTINGUISH BETWEEN CEASE-AND-DESIST ORDERS AND THOSE REQUIRING PAYMENT
OF BACK PAY.  LABOR BOARD V. WILLIAMSON-DICKIE MFG. CO., 130 F.2D 260,
263; LABOR BOARD V. INGRAM, 273 F.2D 670, 673.  THE TEX-O-KAN
CREDIBILITY VIEW HAS ALSO BEEN APPLIED BY THE COURT IN DETERMINING
WHETHER TO ENFORCE AN ORDER REQUIRING PAYMENT OF A BONUS FOUND TO HAVE
BEEN WITHHELD IN ORDER TO DISCOURAGE UNION ACTIVITY.  LABOR BOARD V.
CROSBY CHEMICALS, INC., 274 F.2D 72, 78.  IT HAS NOT BEEN CITED ON THE
ISSUE OF CREDIBILITY IN CASES INVOLVING ONLY CEASE-AND-DESIST ORDERS. 

                       3.  A SPECIAL RULE FOR REINSTATEMENT? 

I AGREE WITH THE COURT THAT, DESPITE THE CONSEQUENCES OF BACK-PAY
ORDERS, "THERE IS NO PLACE IN THE STATUTORY SCHEME FOR ONE TEST OF THE
SUBSTANTIALITY OF EVIDENCE IN REINSTATEMENT CASES AND ANOTHER TEST IN
OTHER CASES."  HOWEVER, ALTHOUGH THE COURT OF APPEALS HAS SEVERAL TIMES
IN THE PAST SEEMINGLY APPLIED TWO DIFFERENT RULES, AND ALTHOUGH IT HAS
NOT RELIED ON TEX-O-KAN IN CASES DEALING SOLELY WITH CEASE-AND-DESIST
ORDERS, I DO NOT THINK EITHER OF THE PRESENT CASES PRESENTS AN
APPROPRIATE OCCASION FOR ADMONISHING THAT COURT AGAINST APPLYING A
DOUBLE STANDARD.  BOTH CASES CONCERNED BOTH CEASE-AND-DESIST ORDERS AND
REINSTATEMENT WITH BACK PAY.  IN NEITHER DID THE COURT OF APPEALS
SUGGEST THAT IT WAS APPLYING A SPECIAL RULE FOR REINSTATEMENT ORDERS
ALONE.  THE PART OF THE TEX-O-KAN OPINION DIFFERENTIATING BACK-PAY FROM
CEASE-AND-DESIST ORDERS, QUOTED BY THIS COURT, WAS NOT QUOTED BY THE
COURT OF APPEALS IN EITHER CASE.  IN WALTON THE COURT SAID ONLY THAT
"THE REQUIREMENTS OF SUBSTANTIALITY OF EVIDENCE AND REASONABLENESS OF
THE INFERENCES TO BE DRAWN FROM THE EVIDENCE ARE NOT LESS IN A CASE OF
REINSTATEMENT AND REIMBURSEMENT THAN WHERE A CEASE AND DESIST ORDER IS
DIRECTED AGAINST INTERFERENCE" - NOT THAT THE REQUIREMENTS ARE MORE
STRICT.  IN FLORIDA CITRUS THE SINGLE FACTUAL ISSUE WHETHER RESPONDENT
HAD REFUSED TO BARGAIN UNDERLAY BOTH BACK-PAY AND CEASE-AND-DESIST
ORDERS.  THE COURT PROPERLY DEALT WITH THIS AS A SINGLE ISSUE AND DID
NOT PURPORT TO APPLY DIFFERENT STANDARDS OF REVIEW FOR PURPOSES OF
VARIOUS PARTS OF THE ORDER.  TEX-O-KAN WAS NOWHERE CITED. 

             4.  TEX-O-KAN'S CREDIBILITY RULE AND THE PRESENT
CASES. 

(1)  IN FLORIDA CITRUS COLLECTIVE BARGAINING HAD BROKEN OFF SHORTLY
AFTER A DISASTROUS FREEZE THAT THREATENED FUTURE BUSINESS.  THE TRIAL
EXAMINER FOUND THAT THE COMPANY WAS RESPONSIBLE FOR THE FAILURE OF
BARGAINING.  HE RECITED A DELAY IN MEETING WHICH HE ATTRIBUTED TO THE
COMPANY.  HE REFERRED TO THE COMPANY'S REFUSAL TO DISCUSS THE UNION'S
PROPOSAL AT A MEETING HELD JUST AFTER THE FREEZE, AND TO THE COMPANY'S
FAILURE IN THE FACE OF UNION DEMANDS TO REQUEST A POSTPONEMENT OF
NEGOTIATIONS TO PERMIT ASSESSMENT OF THE EFFECT OF THE FREEZE, AS IT
HAD ANNOUNCED IT INTENDED TO DO.  FINALLY, BY RESOLVING CONFLICTING
TESTIMONY IN FAVOR OF THE GENERAL COUNSEL'S WITNESSES, HE FOUND THAT
AFTER THE FAILURE OF NEGOTIATIONS THE COMPANY HAD MADE ANTI-UNION
STATEMENTS AND OFFERED INDUCEMENTS TO THE EMPLOYEES SHOULD THEY FORSAKE
THE UNION.  THIS FINDING BUTTRESSED HIS INTERPRETATION OF THE COMPANY'S
EARLIER CONDUCT WHEN BARGAINING WAS CALLED OFF.  IN REJECTING THE
TESTIMONY OF PRODUCTION MANAGER STEPHENSON AND ACCEPTING THAT OF HOLLY,
AN EMPLOYEE TO WHOM THE ALLEGED ANTI-UNION STATEMENTS AND PROMISES HAD
BEEN MADE, THE EXAMINER RELIED IN PART ON A COMPARISON OF THE DEMEANOR
OF THESE TWO WITNESSES, SAYING ALSO THAT STEPHENSON ADMITTED SUCH
SUBJECTS AS A COMPANY UNION HAD COME UP IN THE CONVERSATION; THAT MANY
OF THE STATEMENTS HE WAS SAID TO HAVE MADE LATER CAME TRUE; AND THAT
HOLLY WAS A LOGICAL CHOICE TO SPEAK SUCH SENTIMENTS TO BECAUSE HE MIGHT
REASONABLY HAVE BEEN INDUCED TO LEAD A MOVEMENT OF DEFECTION FROM THE
UNION. 

THE COURT OF APPEALS HELD THE FINDING OF REFUSAL TO BARGAIN TO BE
WITHOUT SUBSTANTIAL SUPPORT.  IT RULED THAT THE BOARD COULD NOT
REASONABLY INFER A REFUSAL TO BARGAIN FROM THE COMPANY'S REFUSAL TO
MAKE A FORMAL REQUEST FOR POSTPONING NEGOTIATIONS, SINCE THE UNION HAD
ISSUED AN ULTIMATUM THAT IN EFFECT REJECTED THE REQUEST.  MOREOVER, IT
REJECTED THE BOARD'S DETERMINATIONS OF CREDIBILITY.  THE COURT MADE IT
CLEAR THAT IT BELIEVED THE EXAMINER'S FINDINGS TO HAVE BEEN BASED ON
"THE BELIEF THAT RELIANCE MAY NOT BE PLACED UPON THE TESTIMONY OF A
WITNESS WHO IS A PART OF THE MANAGEMENT OF AN EMPLOYER IN A CONTROVERSY
WITH A LABOR UNION."  BEYOND THIS, THE COURT DECLARED IT WAS UNABLE TO
ACCEPT THE EXAMINER'S CREDITING OF HOLLY AND DISCREDITING OF STEPHENSON
BECAUSE THERE WAS NO PRIOR INDICATION OF COMPANY OPPOSITION TO THE
UNION AND BECAUSE IT WAS UNLIKELY THAT A MANAGER WOULD DIVULGE THE
DETAILS OF COMPANY LABOR POLICY TO A WATCHMAN.  AS TO A CONFLICT IN
TESTIMONY BETWEEN STEPHENSON AND WINGATE, THE UNION'S CHIEF
REPRESENTATIVE, THE COURT RULED THAT WINGATE'S TESTIMONY SHOULD HAVE
BEEN "MORE CAREFULLY SCRUTINIZED" BECAUSE THE EXAMINER HIMSELF HAD
FOUND WINGATE SOMETIMES INACCURATE OR CARELESS. 

THE BOARD ATTACKS THIS DECISION AS IN CONFLICT WITH THE SUBSTANTIAL
EVIDENCE TEST OF THE LABOR MANAGEMENT RELATIONS ACT AND OF THE
UNIVERSAL CAMERA DOCTRINE.  THE CRUX OF ITS OBJECTION IS THAT THE COURT
HAS SUBSTITUTED ITS JUDGMENT AS TO CREDIBILITY FOR THAT OF THE EXAMINER
AND THE BOARD; IN PARTICULAR, IT COMPLAINS THAT THE RECORD GIVES NO
SUPPORT TO THE COURT'S CONCLUSION THAT THE EXAMINER WAS INCLINED TO
DISCREDIT ON PRINCIPLE ALL COMPANY WITNESSES.  NEITHER IN ITS PETITION
FOR CERTIORARI NOR ITS BRIEF ON THE MERITS DID THE BOARD CITE TEX-O-KAN
AS THE GROUND OF ITS OBJECTION TO THE DECISION IN FLORIDA CITRUS.  YET
THIS COURT REVERSES THE COURT OF APPEALS' DECISION WITHOUT REFERENCE TO
THE FACTS OR THE HOLDING OF THAT CASE, SAYING SIMPLY THAT THE TEX-O-KAN
"TEST OF CREDIBILITY OF WITNESSES SEEMINGLY WAS APPLIED."  BUT TEX-O
KAN WAS NO MORE RELIED ON BY THE COURT OF APPEALS THAN IT WAS ATTACKED
IN THIS CASE BY THE BOARD.  TEX-O-KAN FORBIDS THE EXAMINER AND THE
BOARD TO DISMISS SUMMARILY MANAGEMENT'S REASONS FOR A DISCHARGE IF NOT
CONTRADICTED, IMPEACHED, OR INHERENTLY IMPROBABLE.  FLORIDA CITRUS WAS
NOT A CASE OF UNCONTRADICTED TESTIMONY.  IT WAS NOT A CASE IN WHICH
MOTIVATION FOR A DISCHARGE WAS IN DOUBT.  THE ISSUE WAS WHAT STEPHENSON
SAID TO THE BOARD'S WITNESSES; THE PROBLEM WAS A CONFLICT OF
TESTIMONY.  TO BE SURE, THE BOARD ARGUES THAT BOTH FLORIDA CITRUS AND
TEX-O-KAN ARE MANIFESTATIONS OF THE SAME ATTITUDE OF HOSTILITY TO
FINDINGS OF THE LABOR BOARD.  BUT IF THE COURT OF APPEALS STRAYED
OUTSIDE THE UNIVERSAL CAMERA BOUNDS, IT DID NOT DO SO BY DISCREDITING
UNCONTRADICTED TESTIMONY PURSUANT TO TEX-O-KAN.  IF THIS COURT IS OF
THE OPINION THAT THE COURT OF APPEALS UNJUSTIFIABLY SUBSTITUTED ITS OWN
JUDGMENT FOR THAT OF THE BOARD, IT OUGHT TO SAY SO.  THE COURT OF
APPEALS OUGHT NOT TO BE REVERSED FOR FOLLOWING A DECISION IT DID NOT
FOLLOW. 

(2)  WALTON, BY CONTRAST, SQUARELY PRESENTS A TEX-O-KAN PROBLEM. 
FOUR EMPLOYEES HAD BEEN DISCHARGED AND NINE MORE LAID OFF.  THE TRIAL
EXAMINER, IN EACH CASE REJECTING COMPANY TESTIMONY THAT THE EMPLOYEE
WAS A SUBSTANDARD PERFORMER, ATTRIBUTED ALL THIRTEEN TO THE EMPLOYEES'
UNION ACTIVITIES.  THE BOARD AGREED.  IN HOLDING ALL THESE FINDINGS TO
BE WITHOUT SUBSTANTIAL SUPPORT, THE COURT OF APPEALS POINTED OUT IN THE
CASE OF THE FOUR DISCHARGES THAT IN ADDITION TO THE COMPANY'S WITNESSES
THERE WAS EVIDENCE, SOMETIMES GIVEN BY THE EMPLOYEE HERSELF, EITHER OF
UNSATISFACTORY WORK OR OF MEAGER UNION ACTIVITY, OR BOTH.  BUT IN
REVERSING THE BOARD WITH RESPECT TO THE NINE LAYOFFS THE COURT QUOTED
AND RELIED ON TEX-O-KAN, POINTING OUT THAT MANAGEMENT TESTIMONY,
UNIMPEACHED, ASSIGNED PLAUSIBLE GROUNDS FOR SELECTING EACH EMPLOYEE FOR
LAYOFF, AND THAT THE FACTUAL BASES FOR THESE STATEMENTS WERE LARGELY
UNCONTRADICTED. 

     5.  TEX-O-KAN AND THE SUBSTANTIAL EVIDENCE TEST. 

THIS COURT TODAY LAYS DOWN A DOGMATIC RULE AGAINST A FIFTH CIRCUIT
EVIDENTIARY PRACTICE AUTHORIZING ACCEPTANCE OF PLAUSIBLE,
UNCONTRADICTED, UNIMPEACHED TESTIMONY OF MOTIVATION AND APPARENTLY
HOLDS THE BOARD'S POWER IN REVIWING THE DEAD RECORD TO DETERMINE
WITNESS CREDIBILITY TO BE ABSOLUTE AND UNREVIEWABLE: 

"THE DEMEANOR OF A WITNESS '  ...  MAY SATISFY THE TRIBUNAL, NOT ONLY
THAT THE WITNESS' TESTIMONY IS NOT TRUE, BUT THAT THE TRUTH IS THE
OPPOSITE OF HIS STORY  ...  .'" 

THIS STATEMENT, TORN FROM CONTEXT IN JUDGE LEARNED HAND'S OPINION IN
DYER V. MACDOUGALL, 201 F.2D 265, 269, IS ELEVATED INTO A RULE OF LAW
THAT IGNORES EARLIER DECISIONS OF THIS COURT AND EFFECTIVELY INSULATES
MANY ADMINISTRATIVE FINDINGS FROM JUDICIAL REVIEW, CONTRARY TO THE
COMMAND OF THE LABOR MANAGEMENT RELATIONS ACT AND THE ADMINISTRATIVE
PROCEDURE ACT THAT SUCH FINDINGS SHOULD BE SET ASIDE IF NOT SUPPORTED
BY SUBSTANTIAL EVIDENCE ON THE WHOLE RECORD. 

THE CASES ABOUND WITH STATEMENTS THAT THE DETERMINATION OF
CREDIBILITY IS FOR THE TRIER OF FACT AND IS NOT TO BE UPSET ON APPEAL. 
E.G., TRACTOR TRAINING SERVICE V. FEDERAL TRADE COMMISSION, 227 F.2D
420, 424 (C.A. 9TH CIR.); KITTY CLOVER, INC., V. LABOR BOARD, 208 F.2D
212, 214 (C.A. 8TH CIR.).  PROFESSOR JAFFE HAS SAID "IT IS GENERALLY
HELD THAT WHETHER MADE BY JURY, JUDGE, OR AGENCY A DETERMINATION OF
CREDIBILITY IS NONREVIEWABLE UNLESS THERE IS UNCONTROVERTIBLE
DOCUMENTARY EVIDENCE OR PHYSICAL FACT WHICH CONTRADICTS IT."  JUDICIAL
REVIEW:  QUESTION OF FACT, 69 HARV. L. REV. 1020, 1031.  IT IS THIS
VIEW THAT HAS LED SOME COURTS TO HOLD THAT A VERDICT CANNOT BE DIRECTED
IN FAVOR OF A PARTY HAVING THE BURDEN OF PROOF IF HIS CASE RESTS ON THE
CREDIBILITY OF WITNESSES, E.G., GILES V. GILES, 204 MASS. 383, 90 N.E.
595.  LIKEWISE, PROFESSOR DAVIS SPEAKS OF IT AS SETTLED "THAT A TRIAL
TRIBUNAL MAY DISBELIEVE THE ONLY EVIDENCE PRESENTED AND DISPOSE OF THE
CASE BY HOLDING AGAINST THE PARTY HAVING THE BURDEN OF PROOF,"
ADMINISTRATIVE LAW TREATISE, SEC. 29.06, P. 148.  EVEN IN REVIEWING THE
FINDINGS OF A TRIAL JUDGE SITTING WITHOUT A JURY, WHERE THE STANDARD OF
REVIEW PERMITS CLOSER SCRUTINY BY THE COURT OF APPEALS, RULE 52(A) OF
THE FEDERAL RULES OF CIVIL PROCEDURE REQUIRES THAT "DUE REGARD SHALL BE
GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO JUDGE OF THE CREDIBILITY
OF THE WITNESSES."  AND IN LABOR BOARD V. PITTSBURGH S.S. CO., 337 U.S.
656, 660, THIS COURT HELD THAT THE BOARD'S CREDITING OF ALL GENERAL
COUNSEL'S WITNESSES AND DISCREDITING OF ALL RESPONDENT'S DOES NOT
INDICATE BIAS, SO LONG AS NONE OF THE CREDITED TESTIMONY "CARRIES ITS
OWN DEATH WOUND" AND NONE OF THAT WHICH WAS REJECTED "CARRIES ITS OWN
IRREFUTABLE TRUTH." 

THE OPPORTUNITY OF THE TRIER OF FACT TO OBSERVE THE DEMEANOR OF
WITNESSES SHOULD NOT BE OVERLOOKED.  BUT NEITHER SHOULD IT BE
OVERLOOKED THAT THE BOARD ITSELF HAS NO OPPORTUNITY TO OBSERVE THE
DEMEANOR OF WITNESSES.  YET THE BOARD IS NOT REQUIRED TO ACCEPT A TRIAL
EXAMINER'S CREDIBILITY FINDINGS, SEE UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474, 492-497, AND, THEREFORE, NEITHER IS THE COURT OF
APPEALS.  EVEN WHERE THE FACT-FINDING FUNCTION IS NOT DIVIDED, "DUE
REGARD" FOR THE ADVANTAGE OF THE TRIER OF FACT DOES NOT REQUIRE
APPELLATE IMPOTENCE.  JUDGE HAND'S STATEMENT IN DYER V.  MACDOUGALL WAS
ONE OF LOGIC, NOT OF LAW; THE COURT WENT ON TO AFFIRM A SUMMARY
JUDGMENT AGAINST THE PLAINTIFF, WHO PRESENTED NO EVIDENCE AND RELIED ON
THE CHANCE THAT DEFENDANT'S WITNESSES WOULD BE DISBELIEVED IN THEIR
DENIALS - BECAUSE, DESPITE THE LOGICAL POSSIBILITY THAT DEMEANOR ALONE
MIGHT CONVINCE OF THE AFFIRMATIVE, TO DENY SUMMARY JUDGMENT WOULD HAVE
DESTROYED THE EFFECTIVENESS OF JUDICIAL REVIEW.  INDEED, THIS COURT HAS
NEVER BEFORE REQUIRED COMPLETE DEFERENCE TO CREDIBILITY FINDINGS. 
LABOR BOARD V. PITTSBURGH S.S. CO., 337 U.S. 656, DOES NOT SO HOLD; A
GREAT MANY FINDINGS NOT SO UNFOUNDED AS TO INDICATE BIAS ARE
NONETHELESS REVERSIBLE ERROR.  IN UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474, 490, THIS COURT DECLARED THAT LABOR BOARD FINDINGS
MUST BE SET ASIDE WHEN THE RECORD "CLEARLY PRECLUDES THE BOARD'S
DECISION FROM BEING JUSTIFIED BY A FAIR ESTIMATE OF THE WORTH OF THE
TESTIMONY OF WITNESSES OR ITS INFORMED JUDGMENT ON MATTERS WITHIN ITS
SPECIAL COMPETENCE OR BOTH."  A "FAIR ESTIMATE OF THE WORTH OF THE
TESTIMONY" HARDLY SUGGESTS THAT THE BOARD IS FREE TO MAKE AN UNFAIR
ESTIMATE, ESPECIALLY IN THE LIGHT OF THE DECISION IN UNIVERSAL CAMERA
THAT "COURTS MUST NOW ASSUME MORE RESPONSIBILITY FOR THE REASONABLENESS
AND FAIRNESS OF LABOR BOARD DECISIONS THAN SOME COURTS HAVE SHOWN IN
THE PAST ...  .  CONGRESS HAS IMPOSED ON THEM RESPONSIBILITY FOR
ASSURING THAT THE BOARD KEEPS WITHIN REASONABLE GROUNDS."  PROFESSOR
DAVIS STATES FRANKLY THAT "ADMINISTRATIVE DETERMINATIONS OF CREDIBILITY
ARE OFTEN SET ASIDE BECAUSE THE REVIEWING COURT FIRMLY BELIEVES THAT
THE EVIDENCE SUPPORTING THE DETERMINATION IS CLEARLY LESS CREDIBLE THAN
THE OPPOSING EVIDENCE," ADMINISTRATIVE LAW TREATISE, SEC. 29.06, P.
145.  PROFESSOR JAFFE CONCEDES THAT HIS GENERAL RULE OF DEFERENCE TO
CREDIBILITY FINDINGS IS NOT UNYIELDING AND AGREES THAT THIS MAY BE
PROPER:  "EVEN ON A CREDIBILITY ISSUE WE SHOULD PROBABLY NOT TOLERATE
THE INTUITIVE 'HUNCH' WHERE THE RECORD EVIDENCE OVERWHELMINGLY POINTS
TO THE CONTRARY."  69 HARV. L. REV., AT 1032.    IN FACT, TEX-O-KAN IS
CLEARLY SUPPORTED BY AT LEAST TWO DECISIONS OF THIS COURT REQUIRING A
TRIER OF FACT TO ACCEPT UNIMPEACHED TESTIMONY NOT CONTRADICTED BY
SUBSTANTIAL EVIDENCE IN THE RECORD.  IN DICKINSON V. UNITED STATES, 346
U.S. 389, A DRAFT BOARD HAD CLASSIFIED PETITIONER I-A FOR SELECTIVE
SERVICE PURPOSES DESPITE HIS UNCONTRADICTED TESTIMONY, LETTERS, AND AN
AFFIDAVIT THAT HE WAS AN ORDAINED MINISTER EXEMPTED FROM SERVICE. 
NOTWITHSTANDING ITS HOLDING THAT SUCH AN ORDER WAS SUBJECT TO MORE
LIMITED SCRUTINY THAN MOST AGENCY ORDERS, THE COURT REVERSED HIS
CONVICTION FOR REFUSING TO REPORT FOR INDUCTION:    "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  ...  .  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."  346
U.S., AT 396-397. 

IN CHESAPEAKE & OHIO R. CO. V. MARTIN, 283 U.S. 209, THE COURT
REVERSED A TRIAL JUDGE'S REFUSAL TO SUSTAIN A DEMURRER TO THE EVIDENCE
ON THE GROUND THAT A COMPLETE DEFENSE WAS ESTABLISHED BY
UNCONTRADICTED, UNIMPEACHED TESTIMONY.  QUOTING AT LENGTH FROM CASES IN
OTHER COURTS UPHOLDING APPELLATE REVIEW OF CREDIBILITY DETERMINATIONS,
THE COURT CONCLUDED: 

"WE RECOGNIZE THE GENERAL RULE, OF COURSE, AS STATED BY BOTH COURTS
BELOW, THAT THE QUESTION OF THE CREDIBILITY OF WITNESSES IS ONE FOR THE
JURY ALONE; BUT THIS DOES NOT MEAN THAT THE JURY IS AT LIBERTY, UNDER
THE GUISE OF PASSING UPON THE CREDIBILITY OF A WITNESS, TO DISREGARD
HIS TESTIMONY, WHEN FROM NO REASONABLE POINT OF VIEW IS IT OPEN TO
DOUBT."  283 U.S., AT 216. 

IN SHORT, THE COURT OF APPEALS WAS ENTITLED TO COME TO THE CONCLUSION
TO WHICH IT CAME, FOR NEITHER THE BOARD NOR THE REVIEWING COURT WAS
BOUND BY THE EXAMINER'S FINDINGS ON CREDIBILITY.  I DO NOT THINK THE
COURT OF APPEALS APPLIED AN ERRONEOUS STANDARD OF REVIEW OR GROSSLY
MISAPPLIED THE CORRECT STANDARD, AND, THEREFORE, SINCE IT IS NOT FOR
THIS COURT TO "PASS ON THE BOARD'S CONCLUSIONS IN THE FIRST INSTANCE OR
TO MAKE AN INDEPENDENT REVIEW OF THE REVIEW BY THE COURT OF APPEALS,"
LABOR BOARD V. PITTSBURGH S.S. CO., 340 U.S. 498, 502, I WOULD EITHER
AFFIRM THE CASES OR, PREFERABLY, DISMISS THE WRITS AS IMPROVIDENTLY
GRANTED. 
..END :



KERR STEAMSHIP CO., INC. V. UNITED STATES 369 U.S. 422 


NO. 29.  DECIDED APRIL 9, 1962 - REPORTED BELOW:  284 F.2D 61. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED WITH INSTRUCTIONS
TO DISMISS THE PETITION FOR REVIEW AS MOOT. 

KERR STEAMSHIP CO., INC., ET AL. V. UNITED STATES ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

UPON THE RESPONDENTS' SUGGESTION OF MOOTNESS, THE PETITION FOR WRIT
OF CERTIORARI IS GRANTED AND THE JUDGMENT OF THE COURT OF APPEALS IS
VACATED.  THE CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO
DISMISS THE PETITION FOR REVIEW AS MOOT. 
..END :











ATLANTIC & GULF STEVEDORES, INC. V. ELLERMAN LINES, LTD. 369 U.S. 355 


NO. 282.  ARGUED FEBRUARY 20, 1962 - DECIDED APRIL 2, 1962 - 289 F.2D
201, REVERSED. 


A LONGSHOREMAN EMPLOYED BY PETITIONER, A STEVEDORING CONTRACTOR, WAS
INJURED WHILE HELPING TO UNLOAD A VESSEL, AND HE SUED RESPONDENTS, THE
SHIPOWNERS, IN A FEDERAL DISTRICT COURT ON THE BASIS OF DIVERSITY OF
CITIZENSHIP, ALLEGING THAT THE VESSEL WAS UNSEAWORTHY AND THAT THEY
WERE NEGLIGENT.  RESPONDENTS IMPLEADED PETITIONER AND ASKED INDEMNITY,
ALLEGING THAT IT WAS NEGLIGENT IN THE MANNER OF UNLOADING.  THE JURY
FOUND THAT THE INJURY RESULTED FROM UNSEAWORTHINESS OF THE VESSEL AND
NEGLIGENCE OF RESPONDENTS AND NOT FROM ANY FAILURE OF PETITIONER TO DO
ITS WORK IN ACCORDANCE WITH ITS CONTRACT.  THE DISTRICT COURT ENTERED
JUDGMENT IN FAVOR OF THE LONGSHOREMAN AGAINST RESPONDENTS AND IN FAVOR
OF PETITIONER ON RESPONDENTS' CLAIM FOR INDEMNITY.  THE COURT OF
APPEALS AFFIRMED THE JUDGMENT IN FAVOR OF THE LONGSHOREMAN BUT REVERSED
THE JUDGMENT IN FAVOR OF PETITIONER ON THE GROUND THAT IT ALSO WAS
NEGLIGENT.  HELD:  REDETERMINATION BY THE COURT OF APPEALS OF THE FACTS
FOUND BY THE JURY WAS CONTRARY TO THE PROVISION OF THE SEVENTH
AMENDMENT THAT "NO FACT TRIED BY A JURY, SHALL BE OTHERWISE REEXAMINED
IN ANY COURT OF THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE
COMMON LAW."  PP. 359-364. 

(A)  EVEN THOUGH A STEVEDORING CONTRACT IS A MARITIME CONTRACT, THE
SEVENTH AMENDMENT WAS APPLICABLE IN THIS CASE, BECAUSE THE SUIT, BEING
IN A FEDERAL COURT BY REASON OF DIVERSITY OF CITIZENSHIP, CARRIED WITH
IT THE RIGHT TO TRIAL BY JURY.  PP. 359-360. 

(B)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT PETITIONER
WAS LIABLE AS A MATTER OF LAW, THAT THE TRIAL JUDGE IN THE CHARGE TO
THE JURY OMITTED ANY INGREDIENT FROM PETITIONER'S CONTRACTUAL
LIABILITY, OR THAT THE JURY'S VERDICT WAS INCONSISTENT.  PP.  360-364. 

(C)  WHERE AN APPELLATE COURT IS ASKED TO REVIEW THE JURY'S ANSWERS
TO SPECIAL INTERROGATORIES, THE SEVENTH AMENDMENT PROHIBITS A REVERSAL
ON THE GROUND THAT THE JURY'S ANSWERS ARE INCONSISTENT, IF UNDER ANY
VIEW OF THE CASE THEY ARE, OR CAN BE MADE, CONSISTENT.  P. 364. 

ATLANTIC & GULF STEVEDORES, INC., V. ELLERMAN LINES, LTD., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

LEIGHTON BEARD WAS A LONGSHOREMAN EMPLOYED BY ATLANTIC AND GULF
STEVEDORES, INC. ATLANTIC, THE PETITIONER, PERFORMED STEVEDORING
SERVICES FOR RESPONDENTS.  BEARD RECEIVED INJURIES WHILE HELPING TO
DISCHARGE BALES OF BURLAP FROM A VESSEL OWNED BY RESPONDENTS.  THESE
BALES, LOADED IN INDIA, WERE BOUND BY FOUR PARALLEL ONE-INCH STEEL
BANDS THAT PETITIONER HAD NOT PLACED AROUND THE BALES BUT WERE PART OF
THE CARGO; AND EACH BALE, CONTAINING 30 TO 40 BOLTS OF BURLAP, WAS
STOWED IN TIERS.  THE DISCHARGING OPERATION CONSISTED OF PULLING THE
BALES FROM THEIR STOWED POSITIONS TO THE HATCH AND THEN RAISING THEM
VERTICALLY THROUGH THE HATCH AND LOWERING THEM ONTO THE PIER.  THIS WAS
ACCOMPLISHED BY USING A RING TO WHICH SIX EQUAL-LENGTH ROPES WERE
ATTACHED.  A HOOK WAS ON THE END OF EACH ROPE; AND TWO HOOKS WERE USED
ON EACH BALE, THREE BALES BEING RAISED IN ONE OPERATION.  BEARD AND HIS
CO-WORKERS WOULD SIGNAL THE WINCH OPERATOR TO PULL THE BALES FROM THEIR
STOW TO A POSITION UNDER THE HATCH.  WHEN THE SIDEWAYS MOVEMENT HAD
ENDED, THE BALES WOULD BE RAISED VERTICALLY.  AFTER SEVERAL HOURS OF
ONE UNLOADING OPERATION, TWO BANDS OF ONE BALE BROKE.  THE BALE FELL,
INJURING BEARD. 

THE EVIDENCE SHOWED THAT ATLANTIC PLAYED NO PART IN THE LOADING OR
STOWAGE OF THIS CARGO OF BURLAP.  THERE WERE SIXTY-THREE TONS OF BALES
IN THE FORWARD END OF THE HOLD DESTINED FOR NEW YORK; AND THEY EXTENDED
HALFWAY INTO THE SPACE UNDER THE HATCH.  THE BALES BEING UNLOADED WERE
IN THE AFTER END OF THE HOLD.  THE BALE THAT FELL STRUCK THE NEW YORK
CARGO AND BOUNDED TOWARD BEARD, PINNING HIM AGAINST THE AFTER BULKHEAD
AND CAUSING INJURIES RESULTING IN THE AMPUTATION OF HIS RIGHT LEG. 

BEARD SUED RESPONDENTS IN THE DISTRICT COURT ON THE BASIS OF
DIVERSITY OF CITIZENSHIP, ALLEGING THAT THEIR VESSEL WAS UNSEAWORTHY
AND THAT THEY WERE NEGLIGENT.  RESPONDENTS IMPLEADED PETITIONER,
ALLEGING THAT IT WAS NEGLIGENT IN ITS MANNER AND METHOD OF UNLOADING
AND ASKING INDEMNITY FROM IT IN CASE RESPONDENTS WERE HELD LIABLE TO
BEARD.  COUNSEL NEAR THE END OF THE TRIAL AGREED UPON FIVE SPECIAL
INTERROGATORIES, TO WHICH THE JURY RESPONDED AS FOLLOWS: 

1.  WAS UNSEAWORTHINESS A SUBSTANTIAL FACTOR IN CAUSING THE INJURIES
TO THE PLAINTIFF? 

YES. 

2.  WAS THERE NEGLIGENCE ON THE PART OF ELLERMAN LINES, LTD., WHICH
WAS A SUBSTANTIAL FACTOR IN CAUSING INJURIES TO THE PLAINTIFF? 

YES. 

3.  IN WHAT AMOUNT, IF ANY, DID YOU ASSESS THE DAMAGES TO BE AWARDED
THE PLAINTIFF? 

$100,000. 

4.  IF YOU HAVE ANSWERED YES TO INTERROGATORIES 1 OR 2, DID THE FAULT
OF ELLERMAN LINES, LTD., AND THE CITY LINE, LTD., ARISE OUT OF ANY
FAILURE ON THE PART OF ATLANTIC AND GULF STEVEDORES, INC., TO DO ITS
WORK IN ACCORDANCE WITH THE CONTRACTUAL OBLIGATION? 

NO. 

5.  IF YOU HAVE ANSWERED YES TO INTERROGATORY NO. 4 WAS ATLANTIC AND
GULF STEVEDORES, INC.'S BREACH OF THIS CONTRACT A SUBSTANTIAL FACTOR IN
BRINGING ABOUT THE INJURIES TO THE PLAINTIFF? 

NO. 

THE DISTRICT COURT THEREUPON ENTERED JUDGMENT IN FAVOR OF BEARD
AGAINST RESPONDENTS AND IN FAVOR OF PETITIONER ON RESPONDENTS' CLAIM
FOR INDEMNITY. 

ON APPEAL IT WAS ARGUED, INTER ALIA, THAT A FINDING OF NEGLIGENCE ON
THE PART OF RESPONDENTS WAS WARRANTED BECAUSE THEY FAILED TO PROVIDE A
SAFE PLACE TO WORK IN VIEW OF THE MANNER IN WHICH THE NEW YORK CARGO
WAS STOWED.  WITH THIS THE COURT OF APPEALS AGREED.  NEGLIGENCE ON THE
PART OF RESPONDENTS, IT SAID, WAS ALSO ESTABLISHED BY THE KNOWLEDGE OF
THEIR CHIEF MATE THAT THE USE OF BALE HOOKS WAS A DANGEROUS WAY TO
DISCHARGE BURLAP BALES, AND FROM EVIDENCE THAT BANDS ON THE BALES BROKE
IN "ROUGHLY BETWEEN 3 AND 5 PERCENT OF THE BALES" DURING DISCHARGING
OPERATIONS.  THE COURT SAID THAT THOUGH THE USE OF BALE HOOKS MAY HAVE
BEEN CUSTOMARY IN PHILADELPHIA, SUCH USE WAS NOT SUFFICIENT TO RELIEVE
RESPONDENTS OF NEGLIGENCE. 

IT WENT ON TO SAY THAT THERE WAS EVIDENCE TO SHOW THAT RESPONDENTS,
BY VIRTUE OF THE MANNER OF LOADING, WERE NEGLIGENT IN NOT AFFORDING
BEARD A SAFE PLACE TO WORK.  IT HELD, HOWEVER, THAT SINCE THE "WARRANTY
OF WORKMANLIKE SERVICE EXTENDS TO THE HANDLING OF CARGO  ...  AS WELL
AS TO THE USE OF EQUIPMENT INCIDENTAL TO CARGO HANDLING" (WATERMAN CO.
V. DUGAN & MCNAMARA, 364 U.S. 421, 423), PETITIONER WAS LIABLE, AS A
MATTER OF LAW, TO RESPONDENTS.  FOR IF IT WAS NEGLIGENT FOR RESPONDENTS
TO PERMIT BEARD TO WORK IN AN UNSAFE PLACE, IT WAS "EQUALLY NEGLIGENT"
FOR PETITIONER TO HANDLE THE CARGO IN THE MANNER IT DID, IN LIGHT OF
THE UNSAFE PLACE WHERE BEARD WORKED.  289 F.2D 201, 207. 

THE COURT OF APPEALS THEREFORE AFFIRMED THE JUDGMENT IN FAVOR OF
BEARD AND AGAINST RESPONDENTS ON THE ISSUE OF NEGLIGENCE (WITHOUT
REACHING THE QUESTION OF UNSEAWORTHINESS), BUT REVERSED THE JUDGMENT IN
FAVOR OF ATLANTIC.  THE CASE IS HERE ON A PETITION FOR CERTIORARI.  368
U.S. 874. 

WE MIGHT AGREE WITH THE COURT OF APPEALS HAD THE QUESTIONS OF FACT
BEEN LEFT TO US.  BUT NEITHER WE NOR THE COURT OF APPEALS CAN
REDETERMINE FACTS FOUND BY THE JURY ANY MORE THAN THE DISTRICT COURT
CAN PREDETERMINE THEM.  FOR THE SEVENTH AMENDMENT SAYS THAT "NO FACT
TRIED BY A JURY, SHALL BE OTHERWISE REEXAMINED IN ANY COURT OF THE
UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW." 

THE REQUIREMENTS OF THE SEVENTH AMENDMENT WERE BROUGHT INTO PLAY IN
THIS CASE, EVEN THOUGH A STEVEDORING CONTRACT IS A MARITIME CONTRACT. 
(FN1)  SINCE "LOADING AND STOWING A SHIP'S CARGO" IS PART OF THE
"MARITIME SERVICE," A STEVEDORE CAN RECOVER AGAINST HIS EMPLOYER IN
ADMIRALTY FOR THE LATTER'S NEGLIGENCE (ATLANTIC TRANSPORT CO. V.
IMBROVEK, 234 U.S. 52, 61), ON THE CONDITIONS PROVIDED IN THE
LONGSHOREMEN'S ACT, 33 U.S.C. SEC. 905, 44 STAT. 1426.  AND WHEN THE
SHIPOWNER IS HELD LIABLE, IT MAY IN THE SAME SUIT RECOVER OVER AGAINST
THE STEVEDORING COMPANY ON THE STEVEDORE CONTRACT IN ORDER TO PREVENT
NEEDLESS MULTIPLICITY OF LITIGATION.  AMERICAN STEVEDORES V. PORELLO,
330 U.S. 446, 456. 

CONGRESS SINCE 1789, IN GIVING FEDERAL DISTRICT COURTS ORIGINAL
JURISDICTION OF CIVIL CASES IN ADMIRALTY, HAS SAVED "TO SUITORS IN ALL
CASES ALL OTHER REMEDIES TO WHICH THEY ARE OTHERWISE ENTITLED."  28
U.S.C. SEC. 1333(1).  THEREFORE, A SUIT FOR BREACH OF A MARITIME
CONTRACT, WHILE IT MAY BE BROUGHT IN ADMIRALTY, MAY ALSO BE PURSUED IN
AN ORDINARY CIVIL ACTION, (FN2) SINCE, UNLIKE THE PROCEEDING IN THE
MOSES TAYLOR, 4 WALL.  411, IT IS A SUIT IN PERSONAM.  "WHERE THE SUIT
IS IN PERSONAM, IT MAY BE BROUGHT EITHER IN ADMIRALTY OR, UNDER THE
SAVING CLAUSE, IN AN APPROPRIATE NON-MARITIME COURT, BY ORDINARY CIVIL
ACTION."  GILMORE AND BLACK, THE LAW OF ADMIRALTY (1957), P. 36.  AND
SUCH SUITS ON THE LAW SIDE ARE NOT RESTRICTED TO ENFORCEMENT OF COMMON
LAW RIGHTS BUT EXTEND AS WELL TO MARITIME TORTS.  SEAS SHIPPING CO. V.
SIERACKI, 328 U.S. 85, 88-89. 

THIS SUIT BEING IN THE FEDERAL COURTS BY REASON OF DIVERSITY OF
CITIZENSHIP CARRIED WITH IT, OF COURSE, THE RIGHT TO TRIAL BY JURY.  AS
IN CASES UNDER THE JONES ACT (SCHULZ V. PENNSYLVANIA R. CO., 350 U.S.
523; SENKO V. LACROSSE DREDGING CORP., 352 U.S. 370) AND UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT (TENNANT V. PEORIA & P.U.R. CO., 321
U.S. 29); ELLIS V. UNION PACIFIC R. CO., 329 U.S. 649, 653; DICE V.
AKRON, C.&Y.R. CO., 342 U.S. 359; ROGERS V. MISSOURI PACIFIC R. CO.,
352 U.S. 500), TRIAL BY JURY IS PART OF THE REMEDY.  THUS THE
PROVISIONS OF THE SEVENTH AMENDMENT, NOTED ABOVE, ARE BROUGHT INTO
PLAY.  SCHULZ V. PENNSYLVANIA R. CO., SUPRA, AT 524.  AS WE RECENTLY
STATED IN ANOTHER DIVERSITY CASE, IT IS THE SEVENTH AMENDMENT THAT
FASHIONS "THE FEDERAL POLICY FAVORING JURY DECISIONS OF DISPUTED FACT
QUESTIONS."  BYRD V. BLUE RIDGE COOPERATIVE, 356 U.S. 525, 538, 539. 
AND SEE HERRON V. SOUTHERN PAC. CO., 283 U.S. 91, 94-95. 

IN ANSWER TO INTERROGATORIES NOS. 4 AND 5 THE JURY FOUND THAT
PETITIONER HAD NOT FAILED TO PERFORM ITS CONTRACTUAL OBLIGATION TO
RESPONDENTS.  THE CONTRACT PROVIDED THAT PETITIONER SHOULD DO THE WORK
"WITH EVERY CARE AND DUE DISPATCH TO THE SATISFACTION" OF THE OWNERS. 
IN ITS CHARGE TO THE JURY THE DISTRICT COURT SAID THAT THE OWNER HAD A
DUTY TO PROVIDE LONGSHOREMEN A SAFE PLACE TO WORK; AND IT LEFT TO THE
JURY WHETHER RESPONDENTS HAD WARNING THAT THE METHOD OF UNLOADING WAS
UNSAFE AND WHETHER THE MANNER OF LOADING THE CARGO BY RESPONDENTS MADE
THIS AN UNSAFE PLACE FOR BEARD TO WORK.  IT LEFT TO THE JURY
RESPONDENTS' CONTENTION THAT, IF ANYONE WAS NEGLIGENT IN LEAVING THE
NEW YORK CARGO IN THE PLACE WHERE IT WAS AND IN NOT SHIFTING IT, IT WAS
PETITIONER'S NEGLIGENCE, NOT THEIRS.  IT ALSO CHARGED THE JURY ON
PETITIONER'S LIABILITY, SHOULD BEARD BE FOUND TO HAVE ESTABLISHED HIS
CASE.  IT REFERRED THE JURY TO THE CONTRACT SAYING PETITIONER WAS
OBLIGED "TO UNLOAD AND DISCHARGE THIS CARGO OF BURLAP WITH THE UTMOST
CARE." 

THE COURT OF APPEALS HELD THAT THE JURY HAD BEEN CHARGED TOO
RESTRICTIVELY, THAT THEIR ATTENTION HAD BEEN CALLED ONLY TO THE MANNER
OF USING THE HOOK.  THE TRIAL JUDGE DID INDEED CHARGE: 

"YOU MUST ANSWER THE QUESTION, WAS THAT A REASONABLE AND SAFE METHOD
OF OPERATION FOR THE DISCHARGE OF THAT CARGO?  TAKING INTO
CONSIDERATION THAT IT HAD BEEN DONE OVER A PERIOD OF YEARS, THAT IT WAS
A USUAL AND ACCEPTED METHOD IN VARIOUS PLACES, YOU WILL HAVE TO EXAMINE
INTO THE NATURE OF THE APPLICATION OF THE HOOK TO THE BALE, AND YOU
WILL TAKE INTO CONSIDERATION THE TESTIMONY OF BOTH EXPERTS, AND BOTH
COUNSEL ARGUED TO YOU IN THEIR INTERPRETATION OF THE TESTIMONY THE
RESULTS THAT THEY FEEL FAVOR THEIR SIDE." 

BUT IT WENT FURTHER AND CHARGED THAT IF PETITIONER WAS RESPONSIBLE
FOR THE BREAKING OF THE BANDS, PETITIONER WOULD BE LIABLE: 

"  ...  IF YOU  ...  FIND THAT THAT NEGLIGENT CONDUCT WAS SUCH THAT
IT BROKE THE BAND, (FN3) THEN YOU MUST FIND FOR THE DEFENDANT SHIPPING
COMPANIES; BUT YOU HAVE TO MAKE THAT FINDING IN THE LIGHT OF ALL THE
CIRCUMSTANCES, WHETHER OR NOT THERE WAS SUFFICIENT EVIDENCE THAT
PERSUADES YOU THAT THAT CONDUCT OF THE LONGSHOREMEN WAS RESPONSIBLE FOR
THE BREAKING OF THE BAND - NOT ANY UNSEAWORTHINESS IN THE BAND
ITSELF." 

IT ALSO CHARGED THAT IF THE VERDICT WAS FOR BEARD, THE JURY SHOULD
DETERMINE WHETHER PETITIONER CREATED THE CONDITION THAT MADE
RESPONDENTS LIABLE.  IT CHARGED: 

"THERE AGAIN YOU HAVE TO RUN THE WHOLE GAMUT OF FACTS IN THE CASE. 
YOU WILL HAVE TO DECIDE WHETHER OR NOT THERE WAS AN UNREASONABLE
DISCHARGE OF THIS CARGO, AN UNSAFE METHOD USED IN THE DISCHARGE OF THIS
CARGO, IN THE PLACING OF THE HOOK.  DID THEY BREACH THAT CONTRACT TO DO
IT IN A WORKMANLIKE MANNER WITH THE UTMOST CARE?  THE STEAMSHIP COMPANY
SAYS, 'YES, THEY DID.  THEY BREACHED THAT CONTRACT.  THEY DID NOT DO IT
IN A WORKMANLIKE MANNER.  ALL THE EVIDENCE HERE POINTS TO THE FACT THAT
THEY DID NOT DO IT WITH THE UTMOST CARE, AND THEREFORE THEY CAUSED THE
CONDITION WHICH CREATED THE LIABILITY WHICH IS OURS, WHICH THE
PLAINTIFF HAS SECURED AGAINST US AS DEFENDANTS.'" 

THE TRIAL JUDGE FURTHER CHARGED: 

"  ...  WHETHER OR NOT THERE WAS A BREACH OF THAT CONTRACT, WHAT YOU
LOOK TO DECIDE IS WHETHER OR NOT THERE WAS REASONABLY SAFE DISCHARGE OF
THAT CARGO BY THE ATLANTIC & GULF STEVEDORES.  IF IT WAS NOT, IF IT WAS
NOT DONE IN A REASONABLY SAFE MANNER, THEN ATLANTIC & GULF STEVEDORES
WOULD BREACH THEIR WARRANTY UNDER THE CONTRACT.  IF THERE WAS SUB
STANDARD PERFORMANCE ON WHICH IT WAS FORSEEABLE BY THEM THAT SOME
INJURY MIGHT HAPPEN OR EVENTUATE, THEN ATLANTIC & GULF STEVEDORES WOULD
BE RESPONSIBLE TO THE PLAINTIFF SHIPPING COMPANY." 

MORE SPECIFICALLY THE TRIAL JUDGE CHARGED: 

" ...  YOU WILL HAVE TO DETERMINE WHETHER THERE WAS NEGLIGENCE IN THE
LEAVING OF THAT NEW YORK PART OF THAT CARGO IN THE PLACE WHERE IT WAS,
AND WHETHER IT WAS AN INTERFERENCE, AS THE PLAINTIFF CLAIMS, WITH HIS
CONDITION OF SAFETY. 

"ON THE OTHER HAND, THE DEFENDANT SAYS, 'THIS WAS NOT OUR JOB; THE
SHIFTING SHOULD HAVE BEEN DONE BY THE STEVEDORES.  WE, THE SHIPPING
COMPANY, WERE NOT NEGLIGENT IN FAILING TO GET IT OUT OF THE WAY.' 

"THE PLAINTIFF ASSERTS HERE AND ASKS YOU TO BELIEVE AND TO WEIGH IN
THE BALANCE TOWARD MEETING THE BURDEN WHICH HE HAS TO ESTABLISH BY THE
FAIR PREPONDERANCE OF THE EVIDENCE THAT THIS OFFICER WAS THERE BUT DID
NOT STOP THE OPERATION.  THE DEFENDANT SAYS, 'IF YOU FIND, NO MATTER
WHAT THE OFFICER SAYS, THAT THIS WAS BEING UNLOADED IN A REASONABLY
SAFE MANNER THEN WE WERE NOT LIABLE; IT MAY WELL BE THAT THE ATLANTIC &
GULF STEVEDORES ARE LIABLE, BUT WE WERE NOT LIABLE.'" 

WE DISAGREE WITH THE COURT OF APPEALS THAT THE TRIAL JUDGE LIMITED
THE ISSUE OF PETITIONER'S LIABILITY TO "THE USE OF THE BALE HOOK METHOD
IN DISCHARGING THE CARGO."  289 F.2D, AT P. 208.  WHEN THE DISTRICT
COURT CHARGED THAT IN DETERMINING PETITIONER'S CONTRACTUAL OBLIGATION
THE JURY SHOULD DECIDE "WHETHER OR NOT THERE WAS A REASONABLY SAFE
DISCHARGE" OF THE CARGO, IT INCLUDED THE TOTALITY OF THE
CIRCUMSTANCES.    THE QUESTION OF THE MANNER IN WHICH THE NEW YORK
CARGO HAD BEEN STORED WAS PROMINENT IN THE CASE; AND THE TRIAL JUDGE
LEFT IT TO THE JURY ON THE QUESTION OF RESPONDENTS' NEGLIGENCE.  ON THE
ISSUE OF PETITIONER'S LIABILITY HIS CHARGE WAS NO MORE PRECISE THAN HAS
BEEN INDICATED.  YET RESPONDENTS DID NOT ASK FOR MORE ON THIS PHASE OF
THE CONTROVERSY.  IN THEIR REQUESTED CHARGE THEY WERE NO MORE SPECIFIC,
EXCEPT THEY MAINTAINED, (FN4) AS DID THE COURT OF APPEALS, THAT UNDER
THESE CIRCUMSTANCES THE STEVEDORE IS LIABLE UNDER ITS CONTRACT AS A
MATTER OF LAW. 

WE CANNOT SAY THAT PETITIONER WAS LIABLE AS A MATTER OF LAW NOR THAT
THE TRIAL JUDGE IN THE CHARGE TO THE JURY OMITTED ANY INGREDIENT FROM
PETITIONER'S CONTRACTUAL LIABILITY.  MOREOVER, WE CANNOT SAY THAT THE
JURY'S VERDICE WAS INCONSISTENT.  THE COURT OF APPEALS SAID THAT THE
CASE OF THE RESPONDENTS' NEGLIGENCE WAS ESTABLISHED BECAUSE: 

"  ...  THE RECORD AFFORDS AMPLE BASIS FOR A JURY FACT-FINDING THAT
(1) USE OF THE BALE HOOK METHOD IN THE DISCHARGE OF THE BURLAP BALES
CONSTITUTED NEGLIGENCE, AND (2) THAT THE INJURED LONGSHOREMAN WAS NOT
AFFORDED A SAFE PLACE TO WORK."  289 F.2D, P. 207. 

SO FAR AS WE KNOW THE JURY MAY HAVE FOUND RESPONDENTS LIABLE NOT ON
EITHER OF THOSE TWO GROUNDS BUT SOLELY ON A THIRD, NAMELY, BECAUSE OF
DEFECTIVE BANDS - A MATTER WHICH WAS COVERED BY THE CHARGE TO THE JURY
ON THE ISSUE OF UNSEAWORTHINESS, AND PROPERLY SO.  WEYERHAEUSER S.S.
CO. V. NACIREMA CO., 355 U.S. 563, 567.  IF THAT WAS THE JURY'S VIEW OF
THE FACTS, THEN PETITIONER PLAINLY WOULD NOT BE LIABLE UNDER ITS
WARRANTY.  WHERE THERE IS A VIEW OF THE CASE THAT MAKES THE JURY'S
ANSWERS TO SPECIAL INTERROGATORIES CONSISTENT, THEY MUST BE RESOLVED
THAT WAY.  FOR A SEARCH FOR ONE POSSIBLE VIEW OF THE CASE WHICH WILL
MAKE THE JURY'S FINDING INCONSISTENT RESULTS IN A COLLISION WITH THE
SEVENTH AMENDMENT.  ARNOLD V. PANHANDLE & S.F.R.  CO., 353 U.S. 360. 
CF. DICK V. NEW YORK LIFE INS. CO., 359 U.S. 437, 446.  REVERSED. 

FN1  A STEVEDORE'S CONTRACT WITH A SHIPOWNER IS "COMPARABLE TO A
MANUFACTURER'S WARRANTY OF THE SOUNDNESS OF ITS MANUFACTURED PRODUCT. 
THE SHIPOWNER'S ACTION IS NOT CHANGED FROM ONE FOR A BREACH OF CONTRACT
TO ONE FOR A TORT SIMPLY BECAUSE RECOVERY MAY TURN UPON THE STANDARD OF
THE PERFORMANCE" OF THE STEVEDORING SERVICE.  RYAN CO. V. PAN-ATLANTIC
CORP., 350 U.S. 124, 133-134. 

FN2  SUITS ON MARITIME CONTRACTS MAY BE BROUGHT IN THE FEDERAL COURTS
UNDER THE HEAD OF DIVERSITY JURISDICTION.  POPE & TALBOT, INC., V.
HAWN, 346 U.S. 406; WILBURN BOAT CO. V. FIREMAN'S INS. CO., 348 U.S.
310. 

FN3  THE TRIAL JUDGE ALSO CHARGED THAT "IF YOU FIND THAT THE BANDS OF
THE BALE WERE DEFECTIVE, WERE INADEQUATE, OR INSUFFICIENT  ...  THEN
YOU MIGHT FIND THE DEFENDANTS LIABLE UNDER THE DOCTRINE OF
UNSEAWORTHINESS." 

FN4  ONE OF RESPONDENTS' REQUESTED CHARGES WAS: 

"IF, ON THE OTHER HAND, YOU FIND IN FAVOR OF THE PLAINTIFF AND
AGAINST THE DEFENDANT, AND THE BASIS OF YOUR FINDING IS THAT THE METHOD
OF DISCHARGING WAS NOT REASONABLY SAFE AND PROPER UNDER THE
CIRCUMSTANCES EXISTING AT THE TIME OF THE ACCIDENT, THEN I CHARGE YOU
THAT UNDER THESE CIRCUMSTANCES YOU MUST FURTHER FIND A VERDICT IN FAVOR
OF THE DEFENDANT AND AGAINST ATLANTIC & GULF STEVEDORES, INC." 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

IN MY VIEW THE COURT OF APPEALS CORRECTLY RULED THAT THE RESPONDENTS
WERE ENTITLED TO INDEMNITY FROM THE PETITIONER UNDER PRINCIPLES FIRST
SET FORTH BY THIS COURT IN RYAN CO. V. PAN-ATLANTIC CORP., 350 U.S.
124, AND FOLLOWED IN WEYERHAEUSER S.S. CO. V. NACIREMA CO., 355 U.S.
563, CRUMADY V. THE J.H. FISSER, 358 U.S. 423, AND WATERMAN CO. V.
DUGAN & MCNAMARA, 364 U.S. 421. 

BEARD'S ACTION WAS BASED UPON BOTH NEGLIGENCE AND UNSEAWORTHINESS. 
THE RESPONDENTS WERE ALLEGED TO HAVE BEEN NEGLIGENT (1) IN PERMITTING
THE USE OF THE BALE HOOK METHOD OF DISCHARGING THE BALES, PARTICULARLY
IN VIEW OF THE CHIEF OFFICER'S STATEMENT THAT HE THOUGHT THE METHOD
DANGEROUS, AND (2) IN IMPROPERLY STOWING THE NEW YORK CARGO AND THEREBY
FAILING TO USE ORDINARY CARE TO PROVIDE BEARD WITH A SAFE PLACE TO
WORK.*  THE COURT OF APPEALS PROPERLY DETERMINED THAT THERE WAS
SUFFICIENT EVIDENCE ON EITHER GROUND TO SUPPORT THE JURY'S GENERAL
FINDING OF NEGLIGENCE, A DETERMINATION WHICH I DO NOT UNDERSTAND TO BE
CONTESTED HERE.  BUT A FINDING OF NEGLIGENCE ON EITHER GROUND WOULD
NECESSARILY CARRY WITH IT THE CONCLUSION THAT THE PETITIONER HAD
BREACHED ITS CONTRACTUAL OBLIGATION TO THE RESPONDENTS. 

*THE OPINION OF THE COURT SUGGESTS THAT THERE WAS A THIRD POSSIBLE
GROUND FOR THE JURY'S FINDING OF NEGLIGENCE, NAMELY, FAILURE TO INSPECT
THE BANDS ON THE BALE WHICH FELL.  NO SUCH ISSUE WAS EVER SUBMITTED TO
THE JURY.  THE ONLY ISSUES SUBMITTED TO THE JURY WITH RESPECT TO THE
BANDS RELATED TO THE PLAINTIFF'S UNSEAWORTHINESS CLAIM. 

AS WE SAID ONLY LAST TERM IN WATERMAN CO. V. DUGAN & MCNAMARA, SUPRA,
AT 423, THE STEVEDORE'S "WARRANTY OF WORKMANLIKE SERVICE EXTENDS TO THE
HANDLING OF CARGO  ...  AS WELL AS TO THE USE OF EQUIPMENT INCIDENTAL
TO CARGO HANDLING  ...  ."  IF THE RESPONDENTS WERE NEGLIGENT IN
PERMITTING THE PETITIONER'S USE OF A DANGEROUS METHOD OF UNLOADING
CARGO, THE PETITIONER SURELY BREACHED ITS "WARRANTY OF WORKMANLIKE
SERVICE" BY USING SUCH A METHOD IN THE FIRST INSTANCE.  SIMILARLY, IF
THE LOCATION OF THE SO-CALLED NEW YORK BALES IN THE HOLD MADE THE HOLD
AN UNSAFE PLACE TO WORK, THE PETITIONER NECESSARILY BREACHED ITS
WARRANTY TO THE RESPONDENTS BY UNLOADING THE CARGO BEFORE FIRST MOVING
THOSE BALES.  THE PETITIONER IS IN THE BUSINESS OF HANDLING CARGO, AND
ANY DANGER CREATED BY THE NEW YORK BALES WAS AT LEAST AS APPARENT TO
THE PETITIONER AS TO THE RESPONDENTS.  UNDER ITS WARRANTY THE
PETITIONER HAD A DUTY TO SEE THAT THE DANGER WAS REMOVED BEFORE
PROCEEDING TO UNLOAD THE PHILADELPHIA CARGO. 

IT IS QUESTIONABLE WHETHER THE RIGHT TO A JURY TRIAL UNDER THE
SEVENTH AMENDMENT IS INVOLVED IN THIS CASE, SINCE THE RESPONDENTS'
RIGHTS AGAINST THE PETITIONER DEPEND UPON A MARITIME CONTRACT, NOT UPON
THE COMMON LAW.  AMERICAN STEVEDORES, INC., V. PORELLO, 330 U.S. 446,
456.  WE NEED NOT PURSUE THAT INQUIRY, HOWEVER, BECAUSE IN ANY EVENT
NOTHING IN THE SEVENTH AMENDMENT REMOVES THE DUTY OF A TRIAL JUDGE TO
GIVE PROPER INSTRUCTIONS TO A JURY, OR THE DUTY OF A REVIEWING COURT TO
CORRECT A TRIAL JUDGE'S ERRORS.  FED. RULES CIV. PROC., 50.  HERE, EACH
POSSIBLE GROUND OF THE RESPONDENTS' NEGLIGENCE VIS-A-VIS THE ORIGINAL
PLAINTIFF INVOLVED A BREACH OF THE PETITIONER'S WARRANTY AS A MATTER OF
LAW.  THE COURT OF APPEALS CORRECTLY HELD THAT THE TRIAL JUDGE WAS IN
ERROR IN NOT SO INSTRUCTING THE JURY. 

I WOULD AFFIRM. 
..END :























RUSK V. CORT 369 U.S. 367 


NO. 20.  ARGUED OCTOBER 11, 1961.  - DECIDED APRIL 2, 1962.  - REPORTED
BELOW:  187 F. SUPP. 683. 


APPELLEE WAS BORN IN THE UNITED STATES BUT HAS RESIDED ABROAD SINCE
1951.  HIS ORIGINAL PASSPORT HAVING EXPIRED, HE APPLIED TO THE UNITED
STATES EMBASSY IN PRAGUE, CZECHOSLOVAKIA, FOR A NEW ONE.  THIS WAS
DENIED ON THE GROUND THAT HE HAD LOST HIS CITIZENSHIP UNDER SEC.
349(A)(10) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952 BY REMAINING
OUTSIDE THE UNITED STATES FOR THE PURPOSE OF AVOIDING MILITARY
SERVICE.  HE SUED IN A FEDERAL DISTRICT COURT FOR DECLARATORY AND
INJUNCTIVE RELIEF AGAINST APPELLANT, THE SECRETARY OF STATE, ALLEGING
THAT HE HAD NOT REMAINED ABROAD TO EVADE MILITARY SERVICE AND THAT SEC.
349(A)(10) WAS UNCONSTITUTIONAL.  A THREE-JUDGE DISTRICT COURT CONVENED
TO TRY THE CASE DENIED A MOTION TO DISMISS WHICH WAS BASED ON THE CLAIM
THAT SEC. 360(B) AND (C) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952
PROVIDE THE EXCLUSIVE PROCEDURE UNDER WHICH APPELLEE COULD ATTACK THE
ADMINISTRATIVE DETERMINATION THAT HE WAS NOT A CITIZEN.  IT ALSO HELD
THAT SEC. 349(A)(10) WAS UNCONSTITUTIONAL AND AWARDED APPELLEE A
JUDGMENT DECLARING HIM TO BE A CITIZEN AND ENJOINING APPELLANT FROM
DENYING HIM A PASSPORT ON THE GROUND THAT HE WAS NOT A CITIZEN. 
APPELLANT APPEALED DIRECTLY TO THIS COURT.  HELD: 

1.  SINCE THE DISTRICT COURT HELD SEC. 349(A)(10) UNCONSTITUTIONAL,
THIS APPEAL IS PROPERLY BEFORE THIS COURT UNDER 28 U.S.C. SEC. 1252. 
P. 370, N. 4. 

2.  A PERSON OUTSIDE THE UNITED STATES WHO HAS BEEN DENIED A RIGHT OF
CITIZENSHIP IS NOT CONFINED TO THE PROCEDURES PRESCRIBED BY SEC. 360(B)
AND (C) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, AND THE REMEDY
PURSUED IN THE PRESENT CASE UNDER THE ADMINISTRATIVE PROCEDURE ACT AND
THE DECLARATORY JUDGMENT ACT WAS AN APPROPRIATE ONE.  PP. 370-380. 

3.  WITH RESPECT TO THE OTHER ISSUES PRESENTED BY THIS APPEAL, THE
CASE IS SET FOR REARGUMENT DURING THE OCTOBER TERM, 1962.  P. 380. 

RUSK, SECRETARY OF STATE, V. CORT. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

PROVIDES: 

"FROM AND AFTER THE EFFECTIVE DATE OF THIS ACT A PERSON WHO IS A
NATIONAL OF THE UNITED STATES WHETHER BY BIRTH OR NATURALIZATION, SHALL
LOSE HIS NATIONALITY BY: 

     * *         *         *         * 

"(10) DEPARTING FROM OR REMAINING OUTSIDE OF THE JURISDICTION OF THE
UNITED STATES IN TIME OF WAR OR DURING A PERIOD DECLARED BY THE
PRESIDENT TO BE A PERIOD OF NATIONAL EMERGENCY FOR THE PURPOSE OF
EVADING OR AVOIDING TRAINING AND SERVICE IN THE MILITARY, AIR, OR NAVAL
FORCES OF THE UNITED STATES.   FOR THE PURPOSES OF THIS PARAGRAPH
FAILURE TO COMPLY WITH ANY PROVISION OF ANY COMPULSORY SERVICE LAWS OF
THE UNITED STATES SHALL RAISE THE PRESUMPTION THAT THE DEPARTURE FROM
OR ABSENCE FROM THE UNITED STATES WAS FOR THE PURPOSE OF EVADING OR
AVOIDING TRAINING AND SERVICE IN THE MILITARY, AIR, OR NAVAL FORCES OF
THE UNITED STATES."  (FN1) 

THE APPELLEE, JOSEPH CORT, IS A PHYSICIAN AND RESEARCH PHYSIOLOGIST. 
HE WAS BORN IN MASSACHUSETTS IN 1927.  IN MAY OF 1951 HE REGISTERED
WITH HIS SELECTIVE SERVICE BOARD UNDER THE SO-CALLED "DOCTORS' DRAFT
ACT."  (FN2)  A FEW DAYS LATER HE LEFT THE UNITED STATES FOR CAMBRIDGE,
ENGLAND.  IN 1953, WHILE STILL IN ENGLAND, HE WAS REPEATEDLY NOTIFIED
BY HIS DRAFT BOARD TO REPORT FOR A PHYSICAL EXAMINATION EITHER IN THE
UNITED STATES OR AT AN EXAMINING FACILITY IN EUROPE.  HE DISREGARDED
THESE COMMUNICATIONS, AND IN SEPTEMBER OF 1953 HIS DRAFT BOARD ORDERED
HIM TO REPORT TO BROOKLINE, MASSACHUSETTS, FOR INDUCTION INTO THE ARMED
FORCES.  HE FAILED TO REPORT AS DIRECTED AND REMAINED IN ENGLAND.  IN
1954 AN INDICTMENT CHARGING HIM WITH DRAFT EVASION WAS RETURNED IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. 
EARLIER THAT YEAR, AFTER THE BRITISH HOME OFFICE HAD REFUSED TO RENEW
HIS RESIDENCE PERMIT, CORT HAD GONE TO PRAGUE, CZECHOSLOVAKIA.  HE HAS
BEEN THERE EVER SINCE. 

IN 1959 CORT APPLIED TO OUR EMBASSY IN PRAGUE FOR A UNITED STATES
PASSPORT, HIS ORIGINAL PASSPORT HAVING LONG SINCE EXPIRED.  HIS
APPLICATION WAS DENIED BY THE PASSPORT OFFICE OF THE DEPARTMENT OF
STATE ON THE GROUND THAT HE HAD LOST HIS CITIZENSHIP UNDER SEC.
349(A)(10) OF THE 1952 ACT BY REMAINING OUTSIDE THE UNITED STATES FOR
THE PURPOSE OF AVOIDING MILITARY SERVICE.  SUBSEQUENTLY, THE STATE
DEPARTMENT'S BOARD OF REVIEW ON LOSS OF NATIONALITY AFFIRMED THE
DECISION OF THE PASSPORT OFFICE, ON THE SAME GROUND. 

CORT THEN INSTITUTED THE PRESENT ACTION AGAINST THE SECRETARY OF
STATE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA,
SEEKING DECLARATORY AND INJUNCTIVE RELIEF.  HIS COMPLAINT ALLEGED THAT
HE HAD NOT REMAINED ABROAD TO EVADE HIS MILITARY OBLIGATIONS, AND THAT
SEC. 349(A)(10) WAS IN ANY EVENT UNCONSTITUTIONAL.  A THREE-JUDGE COURT
WAS CONVENED.  THE SECRETARY OF STATE MOVED TO DISMISS THE ACTION UPON
THE GROUND THAT SEC. 360(B) AND (C) OF THE IMMIGRATION AND NATIONALITY
ACT OF 1952 PROVIDE THE EXCLUSIVE PROCEDURE UNDER WHICH CORT COULD
ATTACK THE ADMINISTRATIVE DETERMINATION THAT HE WAS NOT A CITIZEN.  THE
DISTRICT COURT REJECTED THIS CONTENTION, HOLDING THAT IT HAD
JURISDICTION OF THE ACTION FOR A DECLARATORY JUDGMENT AND AN
INJUNCTION.  ON MOTIONS FOR SUMMARY JUDGMENT, THE COURT DETERMINED THAT
THE APPELLEE HAD REMAINED ABROAD TO AVOID SERVICE IN THE ARMED FORCES. 
RELYING UPON TROP V. DULLES, (FN3) THE COURT HELD, HOWEVER, THAT SEC.
349(A)(10) WAS UNCONSTITUTIONAL, AND THAT CONSEQUENTLY THE APPELLEE'S
CITIZENSHIP HAD NOT BEEN DIVESTED.  THE COURT ACCORDINGLY ENTERED A
JUDGMENT DECLARING THE APPELLEE TO BE A CITIZEN OF THE UNITED STATES
AND ENJOINING THE SECRETARY OF STATE FROM DENYING HIM A PASSPORT ON THE
GROUND THAT HE IS NOT A CITIZEN.  CORT V. HERTER, 187 F. SUPP. 683. 
THIS IS A DIRECT APPEAL FROM THAT JUDGMENT. 

THE ONLY QUESTION WE DECIDE TODAY IS WHETHER THE DISTRICT COURT WAS
CORRECT IN HOLDING THAT IT HAD JURISDICTION TO ENTERTAIN THIS ACTION
FOR DECLARATORY AND INJUNCTIVE RELIEF.  IF NOT, WE MUST VACATE THE
JUDGMENT AND DIRECT THE DISTRICT COURT TO DISMISS THE COMPLAINT. 
(FN4) 

IN SUPPORT OF ITS JURISDICTION THE DISTRICT COURT RELIED UPON THE
DECLARATORY JUDGMENT ACT AND THE ADMINISTRATIVE PROCEDURE ACT.  187 F.
SUPP., AT 685.  THE DECLARATORY JUDGMENT ACT, 48 STAT. 955, AS AMENDED,
28 U.S.C. SEC. 2201, PROVIDES: 

"IN A CASE OF ACTUAL CONTROVERSY WITHIN ITS JURISDICTION, EXCEPT WITH
RESPECT TO FEDERAL TAXES, ANY COURT OF THE UNITED STATES, UPON THE
FILING OF AN APPROPRIATE PLEADING, MAY DECLARE THE RIGHTS AND OTHER
LEGAL RELATIONS OF ANY INTERESTED PARTY SEEKING SUCH DECLARATION,
WHETHER OR NOT FURTHER RELIEF IS OR COULD BE SOUGHT.  ANY SUCH
DECLARATION SHALL HAVE THE FORCE AND EFFECT OF A FINAL JUDGMENT OR
DECREE AND SHALL BE REVIEWABLE AS SUCH." 


"EXCEPT SO FAR AS (1) STATUTES PRECLUDE JUDICIAL REVIEW OF (2) AGENCY
ACTION IS BY LAW COMMITTED TO AGENCY DESCRETION: 

"(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."  60 STAT. 243, 5 U.S.C.  SEC. 1009. 


"NO SUBSEQUENT LEGISLATION SHALL BE HELD TO SUPERSEDE OR MODIFY THE
PROVISIONS OF THIS ACT EXCEPT TO THE EXTENT THAT SUCH LEGISLATION SHALL
DO SO EXPRESSLY."  60 STAT. 244, 5 U.S.C.  SEC. 1011. 

ON THEIR FACE THE PROVISIONS OF THESE STATUTES APPEAR CLEARLY TO
PERMIT AN ACTION SUCH AS WAS BROUGHT HERE TO REVIEW THE FINAL
ADMINISTRATIVE DETERMINATION OF THE SECRETARY OF STATE.  THIS VIEW IS
CONFIRMED BY OUR DECISIONS ESTABLISHING THAT AN ACTION FOR A
DECLARATORY JUDGMENT IS AVAILABLE AS A REMEDY TO SECURE A DETERMINATION
OF CITIZENSHIP - DECISIONS RENDERED BOTH BEFORE AND AFTER THE ENACTMENT
OF THE ADMINISTRATIVE PROCEDURE ACT.  PERKINS V. ELG, 307 U.S. 325;
MCGRATH V. KRISTENSEN, 340 U.S. 162.  MOREOVER, THE FACT THAT THE
PLAINTIFF IS NOT WITHIN THE UNITED STATES HAS NEVER BEEN THOUGHT TO BAR
AN ACTION FOR A DECLARATORY JUDGMENT OF THIS NATURE.  STEWART V.
DULLES, 101 U.S. APP. D.C. 280, 248 F.2D 602; BAUER V. ACHESON, 106 F.
SUPP. 445; SEE FLEMMING V. NESTOR, 363 U.S. 603. 

IT IS THE APPELLANT'S POSITION, HOWEVER, THAT DESPITE THESE BROAD
PROVISIONS OF THE DECLARATORY JUDGMENT ACT AND THE ADMINISTRATIVE
PROCEDURE ACT, CORT COULD NOT LITIGATE HIS CLAIM TO CITIZENSHIP IN AN
ACTION SUCH AS THE ONE HE BROUGHT IN THE DISTRICT COURT, BUT IS
CONFINED INSTEAD TO THE PROCEDURES SET OUT IN SUBSECTIONS (B) AND (C)
OF SEC. 360 OF THE IMMIGRATION AND NATIONALITY ACT OF 1952.  SECTION
360 ESTABLISHES PROCEDURES FOR DETERMINING CLAIMS TO AMERICAN
CITIZENSHIP BY THOSE WITHIN AND WITHOUT THE COUNTRY.  SUBSECTION (A)
COVERS CLAIMANTS "WITHIN THE UNITED STATES" AND AUTHORIZES AN ACTION
FOR A DECLARATORY JUDGMENT AGAINST THE HEAD OF THE AGENCY DENYING THE
CLAIMANT A RIGHT OR PRIVILEGE OF CITIZENSHIP - EXCEPT THAT SUCH AN
ACTION CANNOT BE INSTITUTED IF THE ISSUE OF CITIZENSHIP ARISES IN
CONNCECION WITH AN EXCLUSION PROCEEDING.  (FN5)  SUBSECTIONS (B) AND
(C) DEAL WITH CITIZENSHIP CLAIMANTS "NOT WITHIN THE UNITED STATES." 
THE FORMER PROVIDES, WITH LIMITATIONS, FOR THE ISSUANCE ABROAD OF
CERTIFICATES OF IDENTITY "FOR THE PURPOSE OF TRAVELING TO A PORT OF
ENTRY IN THE UNITED STATES AND APPLYING FOR ADMISSION."  THE LATTER
SUBSECTION DECLARES THAT A PERSON ISSUED SUCH A CERTIFICATE "MAY APPLY
FOR ADMISSION TO THE UNITED STATES AT ANY PORT OF ENTRY, AND SHALL BE
SUBJECT TO ALL THE PROVISIONS OF THIS ACT RELATING TO THE CONDUCT OF
PROCEEDINGS INVOLVING ALIENS SEEKING ADMISSION TO THE UNITED STATES." 
JUDICIAL REVIEW OF THOSE PROCEEDINGS IS TO BE BY HABEAS CORPUS AND NOT
OTHERWISE.  (FN6) 

THUS, THE QUESTION POSED IS WHETHER THE PROCEDURES SPECIFIED IN SEC.
360(B) AND (C) PROVIDE THE ONLY METHOD OF REVIEWING THE SECRETARY OF
STATE'S DETERMINATION THAT CORT HAS FORFEITED HIS CITIZENSHIP.  MORE
PRECISELY STATED, THE QUESTION IN THIS CASE IS WHETHER, DESPITE THE
LIBERAL PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, CONGRESS
INTENDED THAT A NATIVE OF THIS COUNTRY LIVING ABROAD MUST TRAVEL
THOUSANDS OF MILES, BE ARRESTED, AND GO TO JAIL IN ORDER TO ATTACK AN
ADMINISTRATIVE FINDING THAT HE IS NOT A CITIZEN OF THE UNITED STATES. 
WE FIND NOTHING IN THE STATUTORY LANGUAGE, IN THE LEGISLATIVE HISTORY,
OR IN OUR PRIOR DECISIONS WHICH LEADS US TO BELIEVE THAT CONGRESS HAD
ANY SUCH PURPOSE. 

THE ADMINISTRATIVE PROCEDURE ACT CONFERS THE RIGHT TO JUDICIAL REVIEW
OF "ANY AGENCY ACTION."  THE PROCEDURES OF SEC. 360(B) AND (C) WOULD
CULMINATE IN LITIGATION NOT AGAINST THE SECRETARY OF STATE WHOSE
DETERMINATION IS HERE BEING ATTACKED, BUT AGAINST THE ATTORNEY
GENERAL.  WHETHER SUCH LITIGATION COULD PROPERLY BE CONSIDERED REVIEW
OF THE SECRETARY OF STATE'S DETERMINATION PRESENTS A NOT INSUBSTANTIAL
QUESTION.  PUTTING TO ONE SIDE THIS CONCEPTUAL DIFFICULTY, IT IS TO BE
NOTED THAT SUBSECTIONS (B) AND (C) BY THEIR VERY TERMS SIMPLY PROVIDE
THAT A PERSON OUTSIDE OF THE UNITED STATES WHO WISHES TO ASSERT HIS
CITIZENSHIP "MAY" APPLY FOR A CERTIFICATE OF IDENTITY AND THAT A HOLDER
OF A CERTIFICATE OF IDENTITY "MAY" APPLY FOR ADMISSION TO THE UNITED
STATES.  AS THE DISTRICT COURT SAID, "THE LANGUAGE OF THE SECTION SHOWS
NO INTENTION TO PROVIDE AN EXCLUSIVE REMEDY, OR ANY REMEDY, FOR PERSONS
OUTSIDE THE UNITED STATES WHO HAVE NOT ADOPTED THE PROCEDURES OUTLINED
IN SUBSECTIONS (B) AND (C).  NEITHER DOES THE SECTION INDICATE THAT
SUCH PERSONS ARE TO BE DENIED EXISTING REMEDIES."  187 F. SUPP., AT
685. 

THE PREDECESSOR OF SEC. 360 OF THE 1952 ACT WAS SEC. 503 OF THE
NATIONALITY ACT OF 1940, 54 STAT. 1137.  THAT SECTION PROVIDED THAT A
CLAIMANT WHOSE CITIZENSHIP WAS DENIED BY ADMINISTRATIVE AUTHORITIES
COULD INSTITUTE A DECLARATORY JUDGMENT SUIT IN THE FEDERAL COURTS TO
DETERMINE HIS RIGHT TO CITIZENSHIP, WHETHER HE WAS IN THE UNITED STATES
OR ABROAD.  IN ADDITION, THE SECTION BROADENED THE VENUE OF SUCH AN
ACTION BY PERMITTING SUIT TO BE BROUGHT IN THE "DISTRICT IN WHICH SUCH
PERSON CLAIMS A PERMANENT RESIDENCE."  FINALLY, THE SECTION PROVIDED A
METHOD BY WHICH A CLAIMANT COULD ENTER THE UNITED STATES AND PROSECUTE
HIS CLAIM PERSONALLY.  (FN7) 

THE LEGISLATIVE HISTORY OF SEC. 503 INDICATES THAT CONGRESS
UNDERSTOOD THE PROVISION FOR A DECLARATORY JUDGMENT ACTION TO BE MERELY
A CONFIRMATION OF EXISTING LAW, OR AT MOST A CLARIFICATION OF IT.
(FN8)  WHAT WAS CONCEDEDLY NOVEL ABOUT SEC. 503 WAS THE PROVISION
DESIGNED TO PERMIT A CITIZENSHIP CLAIMANT OUTSIDE THE UNITED STATES TO
BE ADMITTED TO THIS COUNTRY UPON A CERTIFICATE OF IDENTITY IN ORDER
PERSONALLY TO PROSECUTE HIS CLAIM TO CITIZENSHIP, SUBJECT TO THE
CONDITION OF DEPORTATION IN THE EVENT OF AN ADVERSE DECISION.  AT THE
TIME OF THE ENACTMENT OF THIS PROVISION SOME MISGIVINGS WERE EXPRESSED
THAT IT MIGHT BE UTILIZED BY ALIENS TO GAIN PHYSICAL ENTRY INTO THE
UNITED STATES AND THEN TO DISAPPEAR INTO THE GENERAL POPULACE.  (FN9) 

IN THE ENSUING YEARS THE ABUSES WHICH SOME HAD ANTICIPATED DID,
INDEED, DEVELOP, AND THE LEGISLATIVE HISTORY OF SEC. 360 OF THE 1952
ACT SHOWS THAT THE PREDOMINATE CONCERN OF CONGRESS WAS TO LIMIT THE
EASY-ENTRY PROVISION OF SEC. 503 OF THE 1940 ACT, UNDER WHICH THESE
ABUSES HAD OCCURRED.  THUS THE REPORT OF THE SENATE COMMITTEE WHICH
STUDIED IMMIGRATION AND NATIONALITY PROBLEMS FOR TWO AND A HALF YEARS
FOUND THAT SEC. 503 "HAS BEEN USED, IN A CONSIDERABLE NUMBER OF CASES,
TO GAIN ENTRY INTO THE UNITED STATES WHERE NO SUCH RIGHT EXISTED."  S.
REP. NO. 1515, 81ST CONG., 2D SESS., P. 777; SEE ALSO JOINT HEARINGS
BEFORE THE SUBCOMMITTEES OF THE COMMITTEES ON THE JUDICIARY ON S. 716,
H.R. 2379 AND H.R. 2816, 82D CONG., 1ST SESS. PP. 108-110, 443-445.  IN
DESCRIBING THE PURPOSE OF THE LEGISLATION WHICH BECAME SEC. 360 OF THE
1952 ACT THE SENATE JUDICIARY COMMITTEE, STATING THAT "THE BILL
MODIFIES SECTION 503 OF THE NATIONALITY ACT OF 1940," EXPLAINED THAT IT
PROVIDES: 

"THAT ANY PERSON WHO HAS PREVIOUSLY BEEN PHYSICALLY PRESENT IN THE
UNITED STATES BUT WHO IS NOT WITHIN THE UNITED STATES WHO CLAIMS A
RIGHT OR PRIVILEGE AS A NATIONAL OF THE UNITED STATES AND IS DENIED
SUCH RIGHT OR PRIVILEGE BY ANY GOVERNMENT AGENCY MAY BE ISSUED A
CERTIFICATE OF IDENTITY FOR THE PURPOSE OF TRAVELING TO THE UNITED
STATES AND APPLYING FOR ADMISSION TO THE UNITED STATES.  THE NET EFFECT
OF THIS PROVISION IS TO REQUIRE THAT THE DETERMINATION OF THE
NATIONALITY OF SUCH PERSON SHALL BE MADE IN ACCORDANCE WITH THE NORMAL
IMMIGRATION PROCEDURES.  THESE PROCEDURES INCLUDE REVIEW BY HABEAS
CORPUS PROCEEDINGS WHERE THE ISSUE OF THE NATIONALITY STATUS OF THE
PERSON CAN BE PROPERLY ADJUDICATED."  S. REP. NO. 1137, 82D CONG., 2D
SESS., P. 50.    AS A MATTER SIMPLY OF GRAMMATICAL CONSTRUCTION, IT
SEEMS OBVIOUS THAT THE "SUCH PERSON" REFERRED TO IN THE COMMITTEE
REPORT IS A PERSON WHO HAS CHOSEN TO OBTAIN A CERTIFICATE OF IDENTITY
AND TO SEEK ADMISSION TO THE UNITED STATES IN ORDER TO PROSECUTE HIS
CLAIM.  THE APPELLEE IN THE PRESENT CASE IS, OF COURSE, NOT SUCH A
PERSON. 

THIS LEGISLATIVE HISTORY IS SUFFICIENT, WE THINK, TO SHOW THAT THE
PURPOSE OF SEC. 360(B) AND (C) WAS TO CUT OFF THE OPPORTUNITY WHICH
ALIENS HAD ABUSED UNDER SEC. 503 OF THE 1940 ACT TO GAIN FRAUDULENT
ENTRY TO THE UNITED STATES BY PROSECUTING SPURIOUS CITIZENSHIP CLAIMS. 
WE ARE SATISFIED THAT CONGRESS DID NOT INTEND TO FORECLOSE LAWSUITS BY
CLAIMANTS, SUCH AS CORT, WHO DO NOT TRY TO GAIN ENTRY TO THE UNITED
STATES BEFORE PREVAILING IN THEIR CLAIMS TO CITIZENSHIP. 

FOR THESE REASONS, WE HOLD THAT A PERSON OUTSIDE THE UNITED STATES
WHO HAS BEEN DENIED A RIGHT OF CITIZENSHIP IS NOT CONFINED TO THE
PROCEDURES PRESCRIBED BY SEC. 360(B) AND (C), AND THAT THE REMEDY
PURSUED IN THE PRESENT CASE WAS AN APPROPRIATE ONE.  THIS VIEW IS IN
ACCORD WITH PREVIOUS DECISIONS OF THIS COURT CONCERNING THE
RELATIONSHIP OF SECS. 10 AND 12 OF THE ADMINISTRATIVE PROCEDURE ACT TO
THE SUBSEQUENTLY ENACTED IMMIGRATION AND NATIONALITY ACT OF 1952.  SEE
SHAUGHNESSY V. PEDREIRO, 349 U.S. 48; BROWNELL V. TOM WE SHUNG, 352
U.S. 180.  THE TEACHING OF THOSE CASES IS THAT THE COURT WILL NOT HOLD
THAT THE BROADLY REMEDIAL PROVISIONS OF THE ADMINISTRATIVE PROCEDURE
ACT ARE UNAVAILABLE TO REVIEW ADMINISTRATIVE DECISIONS UNDER THE 1952
ACT IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT CONGRESS SO
INTENDED. 

WITH RESPECT TO THE OTHER ISSUES PRESENTED BY THIS APPEAL, THE CASE
IS SET FOR REARGUMENT DURING THE OCTOBER TERM, 1962, TO FOLLOW NO. 19. 
IT IS SO ORDERED. 

FN1  66 STAT. 163, 267-268, 8 U.S.C. SEC. 1481(A)(10). 

FN2  50 U.S.C. APP. SEC. 454 ET SEQ. APPELLEE HAD PREVIOUSLY
REGISTERED AS A REGULAR REGISTRANT UNDER THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT OF 1948. 

FN3  356 U.S. 86. 

FN4  WE POSTPONED CONSIDERATION OF THE QUESTION OF OUR JURISDICTION
OF THIS APPEAL UNTIL THE HEARING OF THE CASE ON THE MERITS.  365 U.S.
808.  UNDER 28 U.S.C. SEC. 1252, A DIRECT APPEAL MAY BE TAKEN FROM A
DISTRICT COURT DECISION HOLDING UNCONSTITUTIONAL AN ACT OF CONGRESS IN
A CIVIL ACTION IN WHICH AN OFFICER OF THE UNITED STATES IS A PARTY. 
SINCE THE DISTRICT COURT HELD SEC. 349(A)(10) UNCONSTITUTIONAL, THIS
APPEAL IS PROPERLY BEFORE US UNDER SEC. 1252. 

AN ALTERNATIVE BASIS FOR OUR JURISDICTION OVER THIS APPEAL MIGHT BE
FOUND IN 28 U.S.C.  SEC. 1253, PROVIDING FOR DIRECT APPEALS FROM THE
DECISIONS OF THREE-JUDGE COURTS CONVENED UNDER 28 U.S.C. SECS. 2282,
2284.  BUT SINCE JURISDICTION IS CLEARLY AUTHORIZED BY 28 U.S.C.  SEC.
1252, WE NEED NOT INQUIRE FURTHER INTO THE APPLICABILITY OF 28 U.S.C.
SEC. 2282 TO THIS CASE.  IN VIEW OF THE UNANIMOUS DECISION BELOW, THE
FACT THAT THREE JUDGES HEARD THE CASE ORIGINALLY WOULD NOT AFFECT AN
OTHERWISE FINAL AND REVIEWABLE DECISION OF THE DISTRICT COURT.  SEE
THOMPSON V. WHITTIER, 365 U.S. 465; COMPARE GARMENT WORKERS V. DONNELLY
CO., 304 U.S. 243, 251-252. 

FN5  SECTION 360(A), 66 STAT. 163, 273, 8 U.S.C. SEC. 1503(A): 

"(A) IF ANY PERSON WHO IS WITHIN THE UNITED STATES CLAIMS A RIGHT OR
PRIVILEGE AS A NATIONAL OF THE UNITED STATES AND IS DENIED SUCH RIGHT
OR PRIVILEGE BY ANY DEPARTMENT OR INDEPENDENT AGENCY, OR OFFICIAL
THEREOF, UPON THE GROUND THAT HE IS NOT A NATIONAL OF THE UNITED
STATES, SUCH PERSON MAY INSTITUTE AN ACTION UNDER THE PROVISIONS OF
OR INDEPENDENT AGENCY FOR A JUDGMENT DECLARING HIM TO BE A NATIONAL OF
THE UNITED STATES, EXCEPT THAT NO SUCH ACTION MAY BE INSTITUTED IN ANY
CASE IF THE ISSUE OF SUCH PERSON'S STATUS AS A NATIONAL OF THE UNITED
STATES (1) AROSE BY REASON OF, OR IN CONNECTION WITH ANY EXCLUSION
PROCEEDING UNDER THE PROVISIONS OF THIS OR ANY OTHER ACT, OR (2) IS IN
ISSUE IN ANY SUCH EXCLUSION PROCEEDING.  AN ACTION UNDER THIS
SUBSECTION MAY BE INSTITUTED ONLY WITHIN FIVE YEARS AFTER THE FINAL
ADMINISTRATIVE DENIAL OF SUCH RIGHT OR PRIVILEGE AND SHALL BE FILED IN
THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT IN WHICH SUCH
PERSON RESIDES OR CLAIMS A RESIDENCE, AND JURISDICTION OVER SUCH
OFFICIALS IN SUCH CASES IS HEREBY CONFERRED UPON THOSE COURTS." 

FN6  SECTION 360(B) AND (C), 66 STAT. 163, 273-274, 8 U.S.C. SEC.
1503(B) AND (C): 

"(B) IF ANY PERSON WHO IS NOT WITHIN THE UNITED STATES CLAIMS A RIGHT
OR PRIVILEGE AS A NATIONAL OF THE UNITED STATES AND IS DENIED SUCH
RIGHT OR PRIVILEGE BY ANY DEPARTMENT OR INDEPENDENT AGENCY, OR OFFICIAL
THEREOF, UPON THE GROUND THAT HE IS NOT A NATIONAL OF THE UNITED
STATES, SUCH PERSON MAY MAKE APPLICATION TO A DIPLOMATIC OR CONSULAR
OFFICER OF THE UNITED STATES IN THE FOREIGN COUNTRY IN WHICH HE IS
RESIDING FOR A CERTIFICATE OF IDENTITY FOR THE PURPOSE OF TRAVELING TO
A PORT OF ENTRY IN THE UNITED STATES AND APPLYING FOR ADMISSION.  UPON
PROOF TO THE SATISFACTION OF SUCH DIPLOMATIC OR CONSULAR OFFICER THAT
SUCH APPLICATION IS MADE IN GOOD FAITH AND HAS A SUBSTANTIAL BASIS, HE
SHALL ISSUE TO SUCH PERSON A CERTIFICATE OF IDENTITY.  FROM ANY DENIAL
OF AN APPLICATION FOR SUCH CERTIFICATE THE APPLICANT SHALL BE ENTITLED
TO AN APPEAL TO THE SECRETARY OF STATE, WHO, IF HE APPROVES THE DENIAL,
SHALL STATE IN WRITING HIS REASONS FOR HIS DECISION.  THE SECRETARY OF
STATE SHALL PRESCRIBE RULES AND REGULATIONS FOR THE ISSUANCE OF
CERTIFICATES OF IDENTITY AS ABOVE PROVIDED.  THE PROVISIONS OF THIS
SUBSECTION SHALL BE APPLICABLE ONLY TO A PERSON WHO AT SOME TIME PRIOR
TO HIS APPLICATION FOR THE CERTIFICATE OF IDENTITY HAS BEEN PHYSICALLY
PRESENT IN THE UNITED STATES, OR TO A PERSON UNDER SIXTEEN YEARS OF AGE
WHO WAS BORN ABROAD OF A UNITED STATES CITIZEN PARENT. 

"(C) A PERSON WHO HAS BEEN ISSUED A CERTIFICATE OF IDENTITY UNDER THE
PROVISIONS OF SUBSECTION (B), AND WHILE IN POSSESSION THEREOF, MAY
APPLY FOR ADMISSION TO THE UNITED STATES AT ANY PORT OF ENTRY, AND
SHALL BE SUBJECT TO ALL THE PROVISIONS OF THIS ACT RELATING TO THE
CONDUCT OF PROCEEDINGS INVOLVING ALIENS SEEKING ADMISSION TO THE UNITED
STATES.  A FINAL DETERMINATION BY THE ATTORNEY GENERAL THAT ANY SUCH
PERSON IS NOT ENTITLED TO ADMISSION TO THE UNITED STATES SHALL BE
SUBJECT TO REVIEW BY ANY COURT OF COMPETENT JURISDICTION IN HABEAS
CORPUS PROCEEDINGS AND NOT OTHERWISE.  ANY PERSON DESCRIBED IN THIS
SHALL BE SUBJECT TO ALL THE PROVISIONS OF THIS ACT RELATING TO ALIENS
SEEKING ADMISSION TO THE UNITED STATES." 

FN7  SECTION 503 OF THE NATIONALITY ACT OF 1940, 54 STAT. 1137, 1171
1172, PROVIDED: 

"IF ANY PERSON WHO CLAIMS A RIGHT OR PRIVILEGE AS A NATIONAL OF THE
UNITED STATES IS DENIED SUCH RIGHT OR PRIVILEGE BY ANY DEPARTMENT OR
AGENCY, OR EXECUTIVE OFFICIAL THEREOF, UPON THE GROUND THAT HE IS NOT A
NATIONAL OF THE UNITED STATES, SUCH PERSON, REGARDLESS OF WHETHER HE IS
WITHIN THE UNITED STATES OR ABROAD, MAY INSTITUTE AN ACTION AGAINST THE
HEAD OF SUCH DEPARTMENT OR AGENCY IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT OF COLUMBIA OR IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT IN WHICH SUCH PERSON CLAIMS A PERMANENT
RESIDENCE FOR A JUDGMENT DECLARING HIM TO BE A NATIONAL OF THE UNITED
STATES.  IF SUCH PERSON IS OUTSIDE THE UNITED STATES AND SHALL HAVE
INSTITUTED SUCH AN ACTION IN COURT, HE MAY, UPON SUBMISSION OF A SWORN
APPLICATION SHOWING THAT THE CLAIM OF NATIONALITY PRESENTED IN SUCH
ACTION IS MADE IN GOOD FAITH AND HAS A SUBSTANTIAL BASIS, OBTAIN FROM A
DIPLOMATIC OR CONSULAR OFFICER OF THE UNITED STATES IN THE FOREIGN
COUNTRY IN WHICH HE IS RESIDING A CERTIFICATE OF IDENTITY STATING THAT
HIS NATIONALITY STATUS IS PENDING BEFORE THE COURT, AND MAY BE ADMITTED
TO THE UNITED STATES WITH SUCH CERTIFICATE UPON THE CONDITION THAT HE
SHALL BE SUBJECT TO DEPORTATION IN CASE IT SHALL BE DECIDED BY THE
COURT THAT HE IS NOT A NATIONAL OF THE UNITED STATES.  SUCH CERTIFICATE
OF IDENTITY SHALL NOT BE DENIED SOLELY ON THE GROUND THAT SUCH PERSON
HAS LOST A STATUS PREVIOUSLY HAD OR ACQUIRED AS A NATIONAL OF THE
UNITED STATES; AND FROM ANY DENIAL OF AN APPLICATION FOR SUCH
CERTIFICATE THE APPLICANT SHALL BE ENTITLED TO AN APPEAL TO THE
SECRETARY OF STATE, WHO, IF HE APPROVES THE DENIAL, SHALL STATE IN
WRITING THE REASONS FOR HIS DECISION.  THE SECRETARY OF STATE, WITH
APPROVAL OF THE ATTORNEY GENERAL, SHALL PRESCRIBE RULES AND REGULATIONS
FOR THE ISSUANCE OF CERTIFICATES OF IDENTITY AS ABOVE PROVIDED." 

FN8 FOR EXAMPLE, ONE OF THE MANAGERS OF THE BILL IN THE HOUSE
EXPLAINED THE DECLARATORY JUDGMENT PROVISIONS AS FOLLOWS: 

"WE HAVE A RATHER NEW SITUATION HERE, AND THAT IS WE ARE CUTTING OFF
THE CLAIM TO CITIZENSHIP OF THESE THOUSANDS OF PERSONS UNDER THIS
PROVISION IN THE BILL WHO DO NOT COMPLY WITH ITS TERMS AND THEREFORE IT
WAS DEEMED ADVISABLE THAT SOME CHANCE BE GIVEN THEM TO HAVE WHAT MIGHT
BE CALLED THEIR DAY IN COURT.  WE HAVE SAFEGUARDED THE SITUATION
EXTREMELY CAREFULLY AND FEEL THAT SO FAR AS POSSIBLE WE HAVE PREVENTED
ANY ABUSE OF IT.  IT WAS MY CONTENTION WHEN THIS MEASURE WAS UP FOR
CONSIDERATION IN THE COMMITTEE THAT SUCH PEOPLE DID HAVE THE RIGHT TO
GO INTO COURT EITHER ON A DECLARATORY JUDGMENT OR UNDER A WRIT OF
HABEAS CORPUS, BUT THERE WAS A FEELING ON THE PART OF OTHERS THAT THEY
MAY NOT HAVE THAT RIGHT."  86 CONG. REC. 13247. 

A SIMILAR UNDERSTANDING OF THE MEASURE WAS INDICATED DURING THE HOUSE
COMMITTEE HEARINGS ON THE BILL. 

"MR. FLOURNOY  ...  .  THE QUESTION REMAINS, WHETHER WHILE STILL
ABROAD HE WOULD NOT BE ABLE TO RESORT TO A PETITION FOR DECLARATORY
JUDGMENT OR FOR A WRIT OF MANDAMUS. 

"THE CHAIRMAN.  I SHOULD THINK, GENTLEMEN, THAT WE OUGHT TO GO A
LITTLE STEP FURTHER  ...  TO SAY THAT SUCH PERSON MAY, UPON
APPLICATION, BE PERMITTED UNDER CERTAIN CONDITIONS  ...  TO ENTER THE
UNITED STATES FOR A SHORT PERIOD OF TIME AS A TEMPORARY PERSON ONLY." 
HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND NATURALIZATION
ON H.R. 6127, SUPERSEDED BY H.R. 9980, 76TH CONG., 1ST SESS., PP. 291
292. 

FN9  FOR INSTANCE, A REPRESENTATIVE OF THE IMMIGRATION AND
NATURALIZATION SERVICE TESTIFIED AT THE HOUSE COMMITTEE HEARINGS THAT
AFTER A CITIZEN CLAIMANT HAD BEEN PERMITTED TO ENTER THE UNITED STATES,
"IT WOULD BE OPEN TO QUESTION, IN MIND, WHETHER YOU WOULD EVER GET HIM
OUT AGAIN."  HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON H.R.  6127, SUPERSEDED BY H.R. 9980, 76TH CONG., 1ST
SESS., P. 292; SEE ALSO, ID., AT 294, 296. 

MR. JUSTICE BRENNAN, CONCURRING. 

WHILE I AGREE WITH THE REASONING OF THE COURT AND JOIN ITS OPINION, I
WISH TO NOTE MY VIEW THAT ITS INTERPRETATION OF SEC. 360 OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952 IS FURTHER SUPPORTED BY SERIOUS
DOUBT AS TO WHETHER THE STATUTE AS CONSTRUED AND APPLIED BY THE
DISSENTING OPINION WOULD BE CONSTITUTIONAL.  COMPARE, E.G., UNITED
STATES V. WITKOVICH, 353 U.S. 194, 201-202. 

NECESSARILY IMPLICIT IN THE ADMINISTRATIVE DENIAL OF A RIGHT OR
PRIVILEGE OF CITIZENSHIP ON THE GROUND THAT THE INDIVIDUAL AFFECTED HAS
COMMITTED AN EXPATRIATING ACT ENUMERATED IN SEC.  401 OF THE 1940 ACT
OR SEC. 349 OF THE 1952 ACT, IS THE ASSUMPTION THAT THE INDIVIDUAL WAS
THERETOFORE A CITIZEN.  ACCORDINGLY, IT FOLLOWS FROM THE INTERPRETATION
ADVANCED BY THE DISSENT THAT A PERSON ABROAD WHO JUST PRIOR TO THE
ADVERSE ADMINISTRATIVE ACTION ADMITTEDLY HAD BEEN DEEMED A CITIZEN,
ENTITLED TO ALL THE INCIDENTS OF CITIZENSHIP INCLUDING THE FREEDOM TO
RE-ENTER THE COUNTRY, MAY BY UNREVIEWABLE ADMINISTRATIVE ACTION BE
RELEGATED TO THE STATUS OF AN ALIEN CONFRONTED BY ALL THE BARRIERS TO
ALIEN ENTRY AND THE LIMITED ACCESS TO JUDICIAL REVIEW THAT AN ALIEN
ENJOYS.  THAT CONGRESS MAY, CONSISTENTLY WITH THE REQUIREMENTS OF DUE
PROCESS, CIRCUMSCRIBE GENERAL GRANTS OF JURISDICTION (FN1) SO AS TO
DENY JUDICIAL REVIEW OF ADMINISTRATIVE ACTION WHICH PEREMPTORILY
INITIATES THE TREATMENT AS AN ALIEN OF ONE WHO HAD BEEN A CITIZEN SEEMS
AT LEAST DOUBTFUL ENOUGH THAT WE SHOULD, IF REASONABLY POSSIBLE, AVOID
INTERPRETING ANY STATUTE TO ACCOMPLISH SUCH A RESULT. 

IF SECS. 360(B), (C) PROVIDED THE SOLE AVENUE TO JUDICIAL REVIEW FOR
ONE WHO WHILE ABROAD IS DENIED A RIGHT OF CITIZENSHIP, THE FOLLOWING
CONSEQUENCES WOULD RESULT:  HE WOULD HAVE TO APPLY FOR A CERTIFICATE OF
IDENTITY, WHICH WOULD BE GRANTED ONLY IF AN ADMINISTRATIVE OFFICIAL WAS
SATISFIED THAT THE APPLICATION WAS MADE IN GOOD FAITH AND HAD A
SUBSTANTIAL BASIS.  IF THE CERTIFICATE WERE INITIALLY DENIED, AN
ADMINISTRATIVE APPEAL WOULD HAVE TO BE TAKEN.  IF THAT FAILED, AN
ATTEMPT MIGHT BE MADE TO SECURE JUDICIAL REVIEW.  A HOLDING THAT NO
SUCH REVIEW IS AVAILABLE WOULD MEAN THAT ONE WHO ADMITTEDLY HAD BEEN A
CITIZEN WOULD HAVE BEEN CONCLUSIVELY CONVERTED INTO AN ALIEN WITHOUT
EVER HAVING GAINED ACCESS TO ANY COURT.  ON THE OTHER HAND, IF REVIEW
WERE FORTHCOMING AT THIS STAGE, AND IF ISSUANCE OF A CERTIFICATE WERE
ORDERED, THE INDIVIDUAL WOULD HAVE GAINED ONLY THE RIGHT TO TRAVEL TO A
UNITED STATES PORT OF ENTRY - IF HE COULD AFFORD THE PASSAGE - THERE TO
BE "SUBJECT TO ALL THE PROVISIONS OF THIS CHAPTER RELATING TO THE
CONDUCT OF PROCEEDINGS INVOLVING ALIENS SEEKING ADMISSION TO THE UNITED
STATES."  HE WOULD, IN OTHER WORDS, HAVE TO SUBMIT TO DETENTION AS AN
ALIEN ALTHOUGH IT IS ASSUMED THAT HE WAS ONCE A CITIZEN AND NO COURT
HAD EVER DETERMINED THAT HE HAD BEEN EXPATRIATED.  SHOULD HE STILL
ENCOUNTER AN ADMINISTRATIVE DENIAL OF THE RIGHT TO ENTER, HE WOULD
FINALLY GET INTO COURT, BUT "IN HABEAS CORPUS PROCEEDINGS AND NOT
OTHERWISE," WITH WHATEVER LIMITATIONS UPON THE SCOPE OF REVIEW SUCH
LANGUAGE MAY IMPLY.    THE DISSENT WOULD CONSTRUE SEC. 360 TO MEAN THAT
ADMINISTRATIVE ACTION RESULTING IN SUCH A STARK LIMITATION OF SUCH
FUNDAMENTAL RIGHTS IS TOTALLY UNREVIEWABLE.  FOR THE VERY PROCEDURES OF
SUBSECTIONS (B) AND (C), WHICH ACCORDING TO THE DISSENT'S
INTERPRETATION ARE THE ONLY AVENUES TO REVIEW OPEN TO THE PUTATIVE
EXPATRIATE ABROAD, ACCOMPLISH A CONVERSION OF CITIZENSHIP INTO
ALIENAGE.   TO READ CONGRESS AS HAVING DENIED JUDICIAL REVIEW OF
ADMINISTRATIVE ACTION WHICH THROWS AN INDIVIDUAL INTO THIS BIND WOULD
BE TO TREAD UPON A CONSTITUTIONAL QUICKSAND. 

THE DISSENT FINDS SHELTER IN UNITED STATES V. JU TOY, 198 U.S. 253,
BUT THAT CASE DOES NOT RESOLVE THE CONSTITUTIONAL DOUBTS I HAVE
SUGGESTED.  THE PRECISE ISSUE THERE WAS THE DEGREE OF FINALITY TO BE
ACCORDED IN HABEAS CORPUS PROCEEDINGS TO AN ADMINISTRATIVE REFUSAL OF
ENTRY BASED ON A FINDING THAT THE PETITIONER WAS NOT, AS HE CLAIMED,
NATIVE-BORN AND SO HAD NEVER BEEN A CITIZEN.  JU TOY WAS NOT AN
EXPATRIATION CASE IN WHICH ADMINISTRATIVE OFFICIALS PURPORTED TO
WITHDRAW RIGHTS OF CITIZENSHIP WHICH ADMITTEDLY ONCE EXISTED.  EVEN IF
"THE MERE FACT THAT (PERSONS SEEKING ENTRY)  ...  CLAIMED TO BE
CITIZENS WOULD NOT HAVE ENTITLED THEM UNDER THE CONSTITUTION TO A
JUDICIAL HEARING," (FN2) IT DOES NOT FOLLOW THAT RIGHTS ATTACHING TO
ADMITTED CITIZENSHIP MAY BE FORFEITED WITHOUT A JUDICIAL HEARING.  TO
DENY THE RIGHTS OF CITIZENSHIP TO ONE WHO PREVIOUSLY ENJOYED THEM
"OBVIOUSLY DEPRIVES HIM OF LIBERTY  ...  .  IT MAY RESULT ALSO IN LOSS
OF BOTH PROPERTY AND LIFE; OR OF ALL THAT MAKES LIFE WORTH LIVING. 
AGAINST THE DANGER OF SUCH DEPRIVATION WITHOUT THE SANCTION AFFORDED BY
JUDICIAL PROCEEDINGS, THE FIFTH AMENDMENT AFFORDS PROTECTION IN ITS
GUARANTEE OF DUE PROCESS OF LAW.  THE DIFFERENCE IN SECURITY OF
JUDICIAL OVER ADMINISTRATIVE ACTION HAS BEEN ADVERTED TO BY THIS
COURT."  NG FUNG HO V. WHITE, 259 U.S. 276, 284-285. 

FN1  ADMINISTRATIVE PROCEDURE ACT.  5 U.S.C. SEC. 1009; DECLARATORY
JUDGMENT ACT, 28 U.S.C. SEC. 2201. 

FN2  NG FUNG HO V. WHITE, 259 U.S. 276, 282.  SEE UNITED STATES V. JU
TOY, 198 U.S. 253, 261: 

"THIS PETITION SHOULD HAVE BEEN DENIED  ...  , IRRESPECTIVE OF WHAT
MORE WE HAVE TO SAY, BECAUSE IT ALLEGED NOTHING EXCEPT CITIZENSHIP.  IT
DISCLOSED NEITHER ABUSE OF AUTHORITY NOR THE EXISTENCE OF EVIDENCE NOT
LAID BEFORE THE SECRETARY.  IT DID NOT EVEN SET FORTH THAT EVIDENCE OR
ALLEGE ITS EFFECT.  BUT AS IT WAS ENTERTAINED AND THE DISTRICT COURT
FOUND FOR THE PETITIONER IT WOULD BE A SEVERE MEASURE TO ORDER THE
PETITION TO BE DISMISSED ON THAT GROUND NOW, AND WE PASS ON TO FURTHER
CONSIDERATIONS." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
CLARK JOIN, DISSENTING. 

THE DECISION THAT THE DISTRICT COURT HAD JURISDICTION TO ENTERTAIN
THIS DECLARATORY JUDGMENT ACTION, NOTWITHSTANDING THAT THE APPELLEE IS
A FOREIGN RESIDENT, SEEMS TO ME MANIFESTLY WRONG, IN LIGHT OF THE
GOVERNING STATUTE AND ITS LEGISLATIVE HISTORY WHICH COULD HARDLY BE
MORE CLEAR. 

THIS ISSUE DEPENDS UPON SEC. 360 OF THE 1952 ACT.  THAT SECTION IS
ENTITLED:  PROCEEDINGS FOR DECLARATION OF UNITED STATES NATIONALITY IN
THE EVENT OF (THE ADMINISTRATIVE) DENIAL OF RIGHTS AND PRIVILEGES AS
NATIONAL."  THE PROVISIONS OF THE SECTION SET OUT IN FULL IN THE
MARGIN, (FN1) MAY BE SUMMARIZED AS FOLLOWS: 

(1)  IF THE PERSON WHOSE RIGHTS AS A NATIONAL HAVE BEEN
ADMINISTRATIVELY DENIED "IS WITHIN THE UNITED STATES," HE MAY BRING A
DECLARATORY JUDGMENT ACTION UNDER 28 U.S.C. SEC. 2201 TO ESTABLISH HIS
CITIZENSHIP, (FN2) UNLESS THAT ISSUE WAS, OR IS, ALREADY INVOLVED IN AN
"EXCLUSION" PROCEEDING.  THE ACTION MUST BE BROUGHT WITHIN FIVE YEARS
AFTER THE FINAL ADMINISTRATIVE DENIAL, AND IN THE DISTRICT WHERE SUCH
PERSON RESIDES OR CLAIMS RESIDENCE.  (SUBSECTION "(A).") 

(2)  IF SUCH PERSON IS "NOT WITHIN THE UNITED STATES," BUT HAD
PREVIOUSLY BEEN "PHYSICALLY" THERE, OR WAS BORN ABROAD OF AN AMERICAN
CITIZEN PARENT AND IS UNDER THE AGE OF 16, (I) HE MAY APPLY ABROAD FOR
A "CERTIFICATE OF IDENTITY" TO ENABLE HIM TO SEEK ADMISSION TO THE
UNITED STATES (SUBSECTION "(B)"); AND (II) IF ADMISSION AT A PORT OF
ENTRY IS FINALLY DENIED HIM BY THE ATTORNEY GENERAL, HE MAY HAVE THAT
DETERMINATION JUDICIALLY REVIEWED "IN HABEAS CORPUS PROCEEDINGS AND NOT
OTHERWISE."  IF ULTIMATELY EXCLUDED FROM THE UNITED STATES, SUCH PERSON
IS MADE SUBJECT TO ALL THE PROVISIONS OF THE IMMIGRATION LAW RELATING
TO THE ADMISSION OF ALIENS TO THE UNITED STATES.  (SUBSECTION "(C).") 

AS WILL BE SHOWN LATER, THESE PROVISIONS OF THE 1952 ACT, AMONG OTHER
THINGS, DEPARTED FROM THE COMPARABLE PROCEDURAL PROVISIONS OF SEC. 503
OF THE NATIONALITY ACT OF 1940, 54 STAT.  1137, 1171-1172, WHICH HAD
EXPRESSLY MADE DECLARATORY RELIEF AVAILABLE TO ALL CITIZENSHIP
CLAIMANTS, WHETHER "WITHIN THE UNITED STATES OR ABROAD," FOLLOWING AN
ADMINISTRATIVE DENIAL OF THAT STATUS.  (FN3)  THE PURPOSE AND EFFECT OF
THE NEW PROVISIONS ARE SHOWN BY THE FOLLOWING EXTRACT FROM THE SENATE
JUDICIARY COMMITTEE'S REPORT ON THE BILL (S. 2550), SEC. 360 OF WHICH,
WITH ONLY A MINOR ADDITION AND DELETION, (FN4) NOW BEARS THE SAME
NUMBER IN THE 1952 ACT:

                            "G. DECLARATORY JUDGMENT 

"UNDER THE PROVISIONS OF SECTION 503 OF THE NATIONALITY ACT OF 1940
ANY PERSON WHO CLAIMS A RIGHT OR PRIVILEGE AS A NATIONAL OF THE UNITED
STATES AND WHO IS DENIED SUCH RIGHT OR PRIVILEGE BY A GOVERNMENTAL
AGENCY ON THE GROUND THAT HE IS NOT A NATIONAL OF THE UNITED STATES MAY
INSTITUTE AN ACTION IN A DISTRICT FEDERAL COURT FOR A JUDGMENT
DECLARING HIM TO BE A NATIONAL OF THE UNITED STATES.  IF SUCH PERSON IS
OUTSIDE THE UNITED STATES AND SHALL HAVE INSTITUTED THE ACTION IN
COURT, HE MAY OBTAIN FROM A DIPLOMATIC OR CONSULAR OFFICER A
CERTIFICATE OF IDENTITY AND MAY BE ADMITTED TO THE UNITED STATES WITH
THE CERTIFICATE UPON THE CONDITION THAT HE SHALL BE SUBJECT TO
DEPORTATION IN CASE IT SHALL BE DECIDED BY THE COURT THAT HE IS NOT A
NATIONAL OF THE UNITED STATES. 

"THE BILL MODIFIES SECTION 503 OF THE NATIONALITY ACT OF 1940 BY
LIMITING THE COURT ACTION EXCLUSIVELY TO PERSONS WHO ARE WITHIN THE
UNITED STATES, AND PROHIBITS THE COURT ACTION IN ANY CASE IF THE ISSUE
OF THE PERSON'S STATUS AS A NATIONAL OF THE UNITED STATES (1) AROSE BY
REASON OF, OR IN CONNECTION WITH, ANY DEPORTATION OR EXCLUSION
PROCEEDING OR (2) IS AN ISSUE IN ANY SUCH DEPORTATION OR EXCLUSION
PROCEEDING.  THE REASON FOR THE MODIFICATION IS THAT THE ISSUE OF
CITIZENSHIP IS ALWAYS GERMANE IN AN EXCLUSION AND DEPORTATION
PROCEEDING, IN WHICH CASE AN ADJUDICATION OF NATIONALITY STATUS CAN BE
APPROPRIATELY MADE. 

"THE BILL FURTHER PROVIDES THAT ANY PERSON WHO HAS PREVIOUSLY BEEN
PHYSICALLY PRESENT IN THE UNITED STATES BUT WHO IS NOT WITHIN THE
UNITED STATES WHO CLAIMS A RIGHT OR PRIVILEGE AS A NATIONAL OF THE
UNITED STATES AND IS DENIED SUCH RIGHT OR PRIVILEGE BY ANY GOVERNMENT
AGENCY MAY BE ISSUED A CERTIFICATE OF IDENTITY FOR THE PURPOSE OF
TRAVELING TO THE UNITED STATES AND APPLYING FOR ADMISSION TO THE UNITED
STATES.  THE NET EFFECT OF THIS PROVISION IS TO REQUIRE THAT THE
DETERMINATION OF THE NATIONALITY OF SUCH PERSON SHALL BE MADE IN
ACCORDANCE WITH THE NORMAL IMMIGRATION PROCEDURES.  THESE PROCEDURES
INCLUDE REVIEW BY HABEAS CORPUS PROCEEDINGS WHERE THE ISSUE OF THE
NATIONALITY STATUS OF THE PERSON CAN BE PROPERLY ADJUDICATED."  S. REP.
NO. 1137, TO ACCOMPANY S. 2550, 82D CONG., 2D SESS., P. 50. 

THE COURT NOW HOLDS, HOWEVER, THAT UNDER SEC. 360 DECLARATORY RELIEF
IS STILL AVAILABLE TO THOSE "NOT WITHIN THE UNITED STATES" AS WELL AS
THOSE "WITHIN THE UNITED STATES," AS WAS SO UNDER SEC. 503 OF THE 1940
ACT; THAT THE CERTIFICATE OF IDENTITY PROCEDURE PROVIDED IN SUBSECTIONS
(B) AND (C) OF SEC. 360 IS NOT THE EXCLUSIVE REMEDY AVAILABLE TO
NONRESIDENT CITIZENSHIP CLAIMANTS; THAT CONGRESS' "PREDOMINANT CONCERN"
IN ENACTING THOSE SUBSECTIONS WAS TO FEND AGAINST POSSIBLE MISUSE OF
CERTIFICATES OF IDENTITY IN EFFECTING FRAUDULENT ENTRY INTO THIS
COUNTRY; AND THAT JURISDICTION OF THIS ACTION ACCORDINGLY LIES UNDER
THE DECLARATORY JUDGMENT ACT AND THE ADMINISTRATIVE PROCEDURE ACT. 
THESE CONCLUSIONS, WHICH I BELIEVE ARE PLAINLY INCONSISTENT WITH THE
CONGRESSIONAL PURPOSE, AS REFLECTED ON THE FACE OF SEC. 360 ITSELF AND
IN THE FOREGOING SENATE JUDICIARY COMMITTEE REPORT, ARE REFUTED BEYOND
ANY DOUBT BY THE BACKGROUND AND LEGISLATIVE HISTORY OF SEC. 360. 

PRIOR TO 1940, IMMIGRATION AND NATIONALITY STATUTES WERE SILENT ON
THE FORM AND SCOPE OF JUDICIAL REVIEW IN DEPORTATION, EXCLUSION, AND
NATIONALITY CASES.  IN 1905 THIS COURT, IN A HABEAS CORPUS PROCEEDING
INVOLVING AN ADMINISTRATIVE DENIAL OF ADMISSION TO THIS COUNTRY OF A
NONRESIDENT CITIZENSHIP CLAIMANT WHO HAD TEMPORARILY DEPARTED, HELD
THAT DUE PROCESS DID NOT REQUIRE A JUDICIAL TRIAL OF THE ISSUE OF
CITIZENSHIP; AND THAT THE COURTS COULD INQUIRE INTO THE ADMINISTRATIVE
DECISION ONLY WITHIN THE CONVENTIONAL LIMITS OF HABEAS CORPUS REVIEW. 
(FN5)  UNITED STATES V. JU TOY, 198 U.S. 253 (HOLMES, J.).  IN 1922,
HOWEVER, THE COURT HELD THAT A RESIDENT CLAIMANT IN A DEPORTATION
PROCEEDING WAS ENTITLED TO A JUDICIAL DETERMINATION OF HIS CITIZENSHIP
STATUS, THUS TURNING THE AVAILABILITY OF FULL JUDICIAL RELIEF ON THE
GEOGRAPHICAL LOCATION OF THE CLAIMANT.  NG FUNG HO V. WHITE, 259 U.S.
276 (BRANDEIS, J.). 

IN 1934 THE DECLARATORY JUDGMENT ACT WAS PASSED.  48 STAT. 955-956;
28 U.S.C. SEC. 2201, AS SINCE AMENDED.  IN A CASE DECIDED IN 1939, THIS
COURT HELD THAT REMEDY APPLICABLE TO RESIDENT CITIZENSHIP CLAIMANTS,
SEE PERKINS V. ELG, 307 U.S. 325.  HOWEVER, DESPITE THE ELG DECISION,
AND NO DOUBT BECAUSE OF THE JU TOY AND NG FUNG HO CASES, THE CONTINUING
PREVAILING VIEW PRIOR TO 1940 SEEMS TO HAVE BEEN THAT RELIEF UNDER THE
DECLARATORY JUDGMENT ACT WAS NOT AVAILABLE TO NONRESIDENTS SEEKING A
DETERMINATION OF THEIR CITIZENSHIP CLAIMS. 

IT WAS NOT UNTIL 1940 THAT CONGRESS, IN THE NATIONALITY ACT OF 1940,
FIRST SPECIFICALLY DEALT WITH THE AVAILABILITY OF DECLARATORY RELIEF IN
NATIONALITY CASES.  UNDER THAT STATUTE THE REQUIREMENTS FOR CITIZENSHIP
WERE GREATLY TIGHTENED AND THE PROVISIONS FOR LOSS OF CITIZENSHIP
EXPANDED.  DURING THE DEBATES CONCERN WAS EXPRESSED LEST UNDER EXISTING
LAW SOME PERSONS MIGHT NOT GET THEIR "DAY IN COURT" WITH RESPECT TO
CLAIMS TO CITIZENSHIP.  86 CONG. REC. 13247.  THIS LED TO THE ENACTMENT
OF SEC. 503 UNDER WHICH DECLARATORY RELIEF WAS MADE AVAILABLE TO
RESIDENT AND NONRESIDENT CLAIMANTS ALIKE, AND, IN THE CASE OF THE
LATTER, AUTHORIZING, BUT NOT REQUIRING, THEIR PROVISIONAL ENTRY INTO
THE UNITED STATES UNDER CERTIFICATES OF IDENTITY, ISSUABLE IN AID OF A
DECLARATORY JUDGMENT SUIT ALREADY FILED.  NOTE 3, SUPRA. 

AT THE SAME TIME CONGRESS RECOGNIZED THE POSSIBILITY OF ABUSE OF THIS
LIBERALIZED PROCEDURE ON THE PART OF NONRESIDENT CLAIMANTS WHO MIGHT
SEEK CERTIFICATES OF IDENTITY ONLY TO ACHIEVE ENTRY INTO THIS COUNTRY,
WITHOUT ANY THOUGHT OF PRESSING THEIR CITIZENSHIP CLAIMS; AND AN
ATTEMPT WAS MADE TO GUARD AGAINST SUCH ABUSE.  ACCORDINGLY, THE SECTION
WAS WRITTEN TO PROVIDE THAT CERTIFICATES OF IDENTITY SHOULD BE
FURNISHED ONLY UPON "A SWORN APPLICATION SHOWING THAT THE CLAIM OF
NATIONALITY PRESENTED IN SUCH (DECLARATORY JUDGMENT) ACTION IS MADE IN
GOOD FAITH AND HAS A SUBSTANTIAL BASIS"; IT ALSO AUTHORIZED THE
SECRETARY OF STATE, WITH THE APPROVAL OF THE ATTORNEY GENERAL TO
PRESCRIBE REGULATIONS FOR THE ISSUANCE OF SUCH CERTIFICATES.  (FN6)
NOTE 3, SUPRA. 

COMMENCING SOON AFTER THE CLOSE OF WORLD WAR II, AND PERHAPS IN PART
AS A RESULT OF THE THEN RECENT REPEAL OF THE CHINESE EXCLUSION ACT AND
CONTINUING COMMUNIST SUCCESSES IN CHINA, A LARGE NUMBER OF SUITS WERE
FILED IN THE FEDERAL COURTS BY CHINESE CITIZENSHIP CLAIMANTS.  THESE
CARRIED IN THEIR WAKE CONSEQUENCES WHICH CONGRESS COULD HARDLY HAVE
FULLY ANTICIPATED WHEN IT ENACTED SEC. 503.   SUCH CONSEQUENCES WERE
PRINCIPALLY OF THREE KINDS.  FIRST, THERE WAS AN INCREASE IN THE VOLUME
OF FRAUDULENT ENTRIES INTO THIS COUNTRY; MANY CHINESE WHO HAD OBTAINED
CERTIFICATES OF IDENTITY INCIDENT TO THE INSTITUTION OF A DECLARATORY
JUDGMENT CITIZENSHIP ACTION WOULD ABANDON THE SUIT UPON ARRIVAL HERE
AND DISAPPEAR INTO THE STREAM OF THE POPULATION.  SECOND, THE COURTS
EXPERIENCED DIFFICULTY IN ADJUDICATING "DERIVATIVE" CITIZENSHIP CLAIMS
WITHOUT THE CLAIMANTS HAVING BEEN FIRST EXPOSED TO NORMAL IMMIGRATION
SCREENING; SUCH CLAIMS WERE OFTEN BASED ON THE ASSERTION THAT THE
CLAIMANT WAS THE FOREIGN-BORN CHILD OF AN AMERICAN CITIZEN WHO HAD
TEMPORARILY RETURNED TO CHINA, AN ASSERTION FREQUENTLY DIFFICULT TO
DISPROVE.  THIRD, THE FEDERAL COURT DOCKETS BECAME CLUTTERED WITH THESE
SUITS.  SEE, E.G., UNITED STATES EX REL. DONG WING OTT V. SHAUGHNESSY,
116 F. SUPP. 745, 751-752, AFF'D, 220 F.2D 537; MAR GONG V. MCGRANERY,
109 F. SUPP. 821, REV'D SUB NOM. MAR GONG V. BROWNELL, 209 F.2D 448. 
BY THE END OF 1952, 1,288 SUCH CASES HAD BEEN INSTITUTED.  SEE LY SHEW
V. ACHESON, 110 F. SUPP. 50, 54-55, VACATED AND REMANDED SUB NOM. LY
SHEW V. DULLES, 219 F.2D 413; ANNUAL REPORTS OF THE ATTORNEY GENERAL
FOR 1956 (PP. 111-113) AND 1957 (PP. 121-123).  THIS STATE OF AFFAIRS
CONTRIBUTED IN NO SMALL DEGREE TO THE REVAMPING OF SEC.  503 BY SEC.
360 OF THE STATUTE NOW BEFORE US, ENACTED AFTER FIVE YEARS OF
INVESTIGATION PURSUANT TO A 1947 SENATE RESOLUTION AUTHORIZING A
GENERAL STUDY OF THE IMMIGRATION LAWS.  S. REP. NO. 137, 80TH CONG.,
1ST SESS. (1947). 

THE FIRST STEP IN THIS DIRECTION OCCURRED IN 1950 WHEN SENATOR
MCCARRAN INTRODUCED S. 3455, SEC. 359 OF WHICH, ENTITLED "JUDICIAL
PROCEEDINGS FOR DECLARATION OF UNITED STATES NATIONALITY IN THE EVENT
OF DENIAL OF RIGHTS AND PRIVILEGES AS A NATIONAL," (FN7) WAS THE
EARLIEST VERSION OF WHAT ULTIMATELY BECAME SEC. 360 OF THE 1952 ACT. 
UNITED STATES."  THE SENATE REPORT (FN8) ACCOMPANYING THAT BILL, AFTER
OBSERVING THAT SEC. 503 OF THE 1940 ACT PERMITTED PERSONS "WITHIN OR
WITHOUT" THE UNITED STATES TO FILE DECLARATORY JUDGMENT SUITS, WENT ON
TO SAY OF PROPOSED NEW SEC. 359:    "IN SPITE OF THE DEFINITE
RESTRICTIONS ON THE USE AND APPLICATION OF SECTION 503 TO BONA FIDE
CASES (SEE SUPRA, PP. 389-390), THE SUBCOMMITTEE FINDS THAT THE SECTION
HAD BEEN SUBJECT TO BROAD INTERPRETATION, AND THAT IT HAS BEEN USED, IN
A CONSIDERABLE NUMBER OF CASES, TO GAIN ENTRY INTO THE UNITED STATES
WHERE NO SUCH RIGHT EXISTED  ...  .  THE SUBCOMMITTEE THEREFORE
RECOMMENDS THAT THE PROVISIONS OF SECTION 503 AS SET OUT IN THE
PROPOSED BILL BE MODIFIED TO LIMIT THE PRIVILEGE TO PERSONS WHO ARE IN
THE UNITED STATES  ...  ." 

READ IN CONNECTION WITH THIS REPORT IT IS SURELY BEYOND DOUBT THAT
THE SEC. 503 "PRIVILEGE" WHICH WAS INTENDED TO BE CHANGED WAS NOT
MERELY THE RIGHT TO A CERTIFICATE OF IDENTITY, WHICH, UNDER THE
EXISTING STATUTE, WAS AN OPTIONAL, NOT A NECESSARY, APPURTENANCE OF A
DECLARATORY JUDGMENT SUIT, BUT THE RIGHT OF ONE ABROAD TO MAINTAIN SUCH
A SUIT ITSELF.  SINCE A PERSON "IN" THE UNITED STATES HAD NO NEED FOR A
CERTIFICATE OF IDENTITY, THE "PRIVILEGE" LIMITED BY THIS BILL TO
PERSONS "IN" THE UNITED STATES CAN ONLY MEAN THE PRIVILEGE OF BRINGING
A DECLARATORY SUIT.  IN OTHER WORDS, THE NEW PROPOSAL DID NOT VIEW THE
"ENTRY" PROBLEM AS SOMETHING THAT COULD BE DEALT WITH INDEPENDENTLY OF
THE CHARACTER OF THE JUDICIAL REMEDY TO BE AFFORDED THOSE
ADMINISTRATIVELY DENIED CITIZENSHIP.  (FN9) THIS, AS WILL BE SEEN,
REMAINED IN THE FOREFRONT OF THE SUBSEQUENT LEGISLATIVE DISCUSSIONS. 

EARLY IN THE FOLLOWING YEAR THREE ADDITIONAL BILLS WERE PLACED BEFORE
THE CONGRESS, ONE IN THE SENATE AND TWO IN THE HOUSE.  S. 716, (FN10) A
REVISION OF THE EARLIER MCCARRAN BILL, AND H.R. 2379, (FN11) INTRODUCED
BY REPRESENTATIVE WALTER, BOTH PROVIDED FOR "CITIZENSHIP" DECLARATORY
RELIEF ONLY AS TO PERSONS "WITHIN THE UNITED STATES."  THE THIRD, H.R.
2816, (FN12) INTRODUCED BY REPRESENTATIVE CELLER, AFFORDED SUCH RELIEF
TO "ANY PERSON" (MAKING NO REFERENCE TO LOCATION), AND IN OTHER
RESPECTS WAS ALSO SUBSTANTIALLY LIKE EXISTING SEC. 503. 

IN THE ENSUING JOINT HEARINGS ON THESE BILLS (FN13) ATTENTION BECAME
SHARPLY FOCUSED ON THE QUESTION OF WHAT, IF ANY, JUDICIAL RELIEF (OTHER
THAN HABEAS CORPUS) SHOULD BE AVAILABLE TO NONRESIDENT CITIZENSHIP
CLAIMANTS.  THE MOST REVEALING POINTS OF VIEW ARE FOUND IN THE
STATEMENTS SUBMITTED ON BEHALF OF THE DEPARTMENTS OF STATE AND
JUSTICE.  (FN14)  WHILE BOTH DEPARTMENTS TOOK THE POSITION THAT SOME
SUCH RELIEF SHOULD BE AFFORDED NONRESIDENTS, (FN15) THEIR PROPOSALS
WERE QUITE DIFFERENT.  STATE SUGGESTED DECLARATORY RELIEF FOR PERSONS
ABROAD LIMITED TO THOSE WHOSE ORIGINAL CITIZENSHIP STATUS WAS NOT IN
DOUBT, BUT WHO WERE DEEMED TO HAVE LOST IT; AND THAT CERTIFICATES OF
IDENTITY SHOULD BE MADE AVAILABLE TO SUCH PERSONS, ON AN OPTIONAL
BASIS, TO PERMIT THEIR COMING TO THIS COUNTRY IN AID OF THEIR SUITS. 
(FN16)  JUSTICE, ON THE OTHER HAND, RECOMMENDED THAT ALL NONRESIDENTS
WHOSE CLAIMS TO CITIZENSHIP WERE NOT FRIVOLOUS SHOULD BE REQUIRED TO
OBTAIN A SPECIAL CERTIFICATE OF IDENTITY, OR ITS EQUIVALENT, SO AS TO
PERMIT THEM TO COME TO THIS COUNTRY TO TEST THEIR CLAIMS IN ACCORDANCE
WITH NORMAL IMMIGRATION PROCEDURES.  (FN17) 

HOWEVER, IT IS EVIDENT THAT THE PROPOSALS OF BOTH STATE AND JUSTICE
WERE INTENDED TO FILL THE REMEDIAL GAP IN S. 716 RESPECTING
NONRESIDENTS; THAT THEY CONTEMPLATED EITHER LIMITING, OR ENTIRELY DOING
AWAY WITH, THE UNRESTRICTED DECLARATORY RELIEF AVAILABLE TO
NONRESIDENTS UNDER SEC. 503 OF THE 1940 STATUTE; THAT THEY WERE
ENVISAGED AS CONSTITUTING THE EXCLUSIVE REMEDY FOR THOSE LIVING ABROAD;
AND THAT THEY NEGATIVE ANY IDEA THAT ONE SO SITUATED WAS TO HAVE THE
CHOICE BETWEEN SUCH PROCEDURES AND GENERAL REMEDIES PROVIDED BY THE
DECLARATORY JUDGMENT ACT OR THE ADMINISTRATIVE PROCEDURE ACT. 

FOLLOWING THE JOINT HEARINGS, THE MCCARRAN BILL, S. 716, WAS REDRAWN
AS S. 2055, (FN18) AND THE WALTER BILL, H.R. 2379, WAS REVISED AS H.R.
5678, (FN19) IN CONSULTATION WITH REPRESENTATIVES OF THE STATE AND
JUSTICE DEPARTMENTS.  (FN20)  THE REVISED MCCARRAN BILL ADOPTED THE
DEPARTMENT OF JUSTICE PROPOSALS, IN EFFECT LIMITING THE JUDICIAL REMEDY
FOR TESTING NONRESIDENT CITIZENSHIP CLAIMS TO THAT AFFORDED IN
CONNECTION WITH "EXCLUSION" CASES, THAT IS HABEAS CORPUS.  (FN21)  THE
NEW WALTER BILL WAS IN EFFECT A COMBINATION OF EXISTING SEC. 503 AND
THE SUGGESTIONS OF THE STATE DEPARTMENT.  (FN22)  THAT BILL WAS
EVENTUALLY PASSED BY THE HOUSE.  (FN23)  THE MCCARRAN BILL, EXCEPT FOR
TWO MINOR DELETIONS, (FN24) WAS REPORTED OUT BY THE SENATE JUDICIARY
COMMITTEE AS S. 2550 AND PASSED BY THE SENATE.  SUPRA, PP. 386-387. 

CONGRESS, THUS SQUARELY FACED WITH MAKING, OR NOT MAKING, DECLARATORY
RELIEF AVAILABLE TO NONRESIDENT CITIZENSHIP CLAIMANTS, CHOSE THE LATTER
COURSE.  IT ACCEPTED S. 2550, (FN25) THE JUDICIAL REMEDY PROVISIONS OF
WHICH BECAME SEC. 360 OF THE IMMIGRATION AND NATIONALITY ACT OF 1952. 
NOTE 1, SUPRA. 

IN LIGHT OF THIS UNAMBIGUOUS COURSE OF EVENTS, I DO NOT UNDERSTAND
HOW THE GOVERNMENT'S CONTENTION THAT THE DISTRICT COURT LACKED
JURISDICTION OVER THIS DECLARATORY JUDGMENT ACTION CAN BE SUCCESSFULLY
CHALLENGED, THE APPELLEE AT ALL RELEVANT TIMES HAVING RESIDED ABROAD. 
TO SAY THE LEAST, THE COURT'S CONTRARY CONCLUSION SEEMS TO ME TO REST
ON THE MOST INSECURE KIND OF REASONING. 

CERTAINLY, THE PAST CASES IN THIS COURT LEND NO SUPPORT TO THIS
DECISION.  PERKINS V. ELG, 307 U.S. 325, HOLDING THAT A RESIDENT,
THREATENED WITH DEPORTATION, COULD MAINTAIN A DECLARATORY JUDGMENT
ACTION TO ESTABLISH CITIZENSHIP, WAS OF COURSE QUITE IN LINE WITH NG
FUNG HO V. WHITE, SUPRA.  MOREOVER, THE CASE WAS DECIDED IN 1939,
BEFORE CONGRESS, FOR THE FIRST TIME, ADDRESSED ITSELF TO THE
AVAILABILITY OF DECLARATORY RELIEF IN NATIONALITY CASES.  SUPRA, P.
389.  MCGRATH V. KRISTENSEN, 340 U.S. 162, IS EVEN MORE INAPPOSITE. 
THE ISSUE THERE WAS SIMPLY WHETHER, IN THE CIRCUMSTANCES INVOLVED, AN
ALIEN THEN IN THIS COUNTRY WAS ELIGIBLE FOR NATURALIZATION, SO THAT THE
ATTORNEY GENERAL HAD POWER TO STAY HIS DEPORTATION.  THE COURT NOTED
THAT SEC. 503 OF THE 1940 ACT WAS NOT AVAILABLE TO THE ALIEN, SINCE HIS
CITIZENSHIP STATUS WAS NOT IN ISSUE.  INCIDENTALLY, THE COURT DID NOT
REACH THE APPLICABILITY OF THE ADMINISTRATIVE PROCEDURE ACT.  FLEMMING
V. NESTOR, 363 U.S. 603, INVOLVED A NONRESIDENT ALIEN'S RIGHT TO SOCIAL
SECURITY BENEFITS, NOT CITIZENSHIP.  (FN26)

SHAUGHNESSY V. PEDREIRO, 349 U.S. 48, AND BROWNELL V. TOM WE SHUNG,
352 U.S. 180, THE TWO CASES RELIED ON BY THE COURT AS SUPPORTING THE
APPLICABILITY OF THE ADMINISTRATIVE PROCEDURE ACT IN THIS INSTANCE,
WERE, RESPECTIVELY, SIMPLY STRAIGHTFORWARD DEPORTATION AND EXCLUSION
CASES, NEITHER INVOLVING A CITIZENSHIP CLAIM.  UNLIKE THE SECTIONS IN
THE 1952 ACT RELATING TO NATIONALITY, THOSE GOVERNING DEPORTATION AND
EXCLUSION THEN HAD NO SPECIFIC PROVISIONS DEALING WITH JUDICIAL RELIEF,
(FN27) AND UNLIKE THIS CASE, THE RELIEF IN THOSE CASES WAS SOUGHT ONLY
AFTER THE ADMINISTRATIVE PROCESS HAD RUN ITS FULL COURSE, AND A "FINAL"
DETERMINATION HAD BEEN MADE BY THE ATTORNEY GENERAL. 

WHEN IT COMES TO SEC. 360 ITSELF AND THE LEGISLATIVE HISTORY OF THE
UNPERSUASIVE.  THE COURT INITIALLY FINDS THAT THE DECLARATORY JUDGMENT
PROVISION RESPECTING NONRESIDENTS, CONTAINED IN THE PREDECESSOR OF SEC.
360 - SEC. 503 OF THE 1940 ACT - WAS UNDERSTOOD "TO BE MERELY A
CONFIRMATION OF EXISTING LAW, OR AT MOST A CLARIFICATION OF IT."  IN
THIS, THE COURT HAS OVERLOOKED THE JU TOY AND NG FUNG HO CASES WHICH OF
COURSE INDICATE PRECISELY THE CONTRARY.  SUPRA, P. 388, AND NOTE 6. 

PROCEEDING FROM THAT PREMISE, AND DESPITE THE UNEQUIVOCAL DIRECTIVE
IN SUBSECTION (C) OF SEC. 360 THAT A FINAL DETERMINATION OF THE
ATTORNEY GENERAL DENYING ADMISSION TO A CITIZENSHIP CLAIMANT SHALL BE
SUBJECT TO JUDICIAL REVIEW "IN HABEAS CORPUS PROCEEDINGS AND NOT
OTHERWISE," THE COURT CONCLUDES THAT SUCH IS NOT INDEED THE EXCLUSIVE
REMEDY.  THIS IS SAID TO BE SO BECAUSE SEC. 360 PROVIDES ONLY THAT THE
CLAIMANT "MAY" APPLY ABROAD FOR A CERTIFICATE OF IDENTITY (SUBSECTION
(B)), AND UPON ARRIVAL AT OUR SHORES "MAY" APPLY FOR ADMISSION
(SUBSECTION (C)).  THIS CONCLUSION IS SUPPORTED ONLY BY A QUOTATION
FROM THE DISTRICT COURT'S OPINION IN THIS VERY CASE.  IT CANNOT
WITHSTAND THE STATUTE AND LEGISLATIVE HISTORY ALREADY DISCUSSED. 

FINALLY, THE COURT CONSIDERS THAT CONGRESS'"PREDOMINATE CONCERN" IN
ENACTING SUBSECTIONS (B) AND (C) OF SEC. 360 WAS WITH FRAUDULENT ENTRY,
NOT JUDICIAL REMEDIES.  IT IS SAID THAT THIS "SEEMS OBVIOUS" BECAUSE
THE PHRASE "SUCH PERSON," CONTAINED IN THE EXTRACT QUOTED BY THE COURT
FROM THE JUDICIARY COMMITTEE REPORT ON S. 2550 (ANTE, PP. 378-379),
REFERS GRAMMATICALLY ONLY TO THOSE PERSONS WHO HAD ELECTED TO PURSUE
THE CERTIFICATE OF IDENTITY PROCEDURE IN PROSECUTING THEIR CITIZENSHIP
CLAIMS.  BUT THIS CONCLUSION ALSO WILL HARDLY STAND UP WHEN THE FULL
TEXT OF THE JUDICIARY COMMITTEE REPORT, ESPECIALLY THE CLAUSE "THE BILL
MODIFIES SECTION 503 OF THE NATIONALITY ACT OF 1940 BY LIMITING THE
COURT ACTION EXCLUSIVELY TO PERSONS WHO ARE WITHIN THE UNITED STATES
...  ," IS READ (SUPRA, P. 387), AND THE RELEVANT LEGISLATIVE HISTORY
IS CONSIDERED. 

IN DECIDING THE JURISDICTIONAL ISSUE AS IT HAS, I FEAR THAT THE COURT
HAS BECOME THE VICTIM OF THE MANNER IN WHICH IT HAS PUT THAT ISSUE TO
ITSELF: 

"MORE PRECISELY STATED, THE QUESTION IN THIS CASE IS WHETHER, DESPITE
THE LIBERAL PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, CONGRESS
INTENDED THAT A NATIVE OF THIS COUNTRY LIVING ABROAD MUST TRAVEL
THOUSANDS OF MILES, BE ARRESTED, AND GO TO JAIL IN ORDER TO ATTACK AN
ADMINISTRATIVE FINDING THAT HE IS NOT A CITIZEN OF THE UNITED STATES." 

BUT TO SUSTAIN THE GOVERNMENT'S POSITION ON THIS ISSUE IT IS NOT
NECESSARY TO FIND THAT CONGRESS, IN ENACTING SEC. 360, SUDDENLY BECAME
SEVERE, IRRATIONAL, OR CAPRICIOUS.  AS A RESULT OF THE UNFAVORABLE
EXPERIENCE WITH SEC. 503 OF THE 1940 ACT, CONGRESS SIMPLY RESTORED,
WITH SOME ALLEVIATIONS, WHAT UNTIL 1940 HAD BEEN THE PROCEDURE IN SUCH
CASES - A PROCEDURE WHOSE CONSTITUTIONALITY HAD LONG SINCE BEEN UPHELD
BY THIS COURT WITH THE FIRM SUPPORT OF SUCH MEN AS HOLMES AND BRANDEIS,
JJ.  AND IN SO DOING CONGRESS ACTED ONLY AFTER THE FULLEST INQUIRY,
DEBATE, AND DELIBERATION. 

I AM UNABLE TO GRASP HOW THE COURT COULD HAVE REACHED THE CONCLUSION
THAT THE PRESENT DECLARATORY ACTION IS NOT PRECLUDED BY SEC. 360,
EXCEPT BY MAKING ITS OWN WISH FATHER TO THE THOUGHT.  (FN28) 

FN1  "(A) IF ANY PERSON WHO IS WITHIN THE UNITED STATES CLAIMS A
RIGHT OR PRIVILEGE AS A NATIONAL OF THE UNITED STATES AND IS DENIED
SUCH RIGHT OR PRIVILEGE BY ANY DEPARTMENT OR INDEPENDENT AGENCY, OR
OFFICIAL THEREOF, UPON THE GROUND THAT HE IS NOT A NATIONAL OF THE
UNITED STATES, SUCH PERSON MAY INSTITUTE AN ACTION UNDER THE PROVISIONS
OF SECTION 2201 OF TITLE 28, U.S.C.  AGAINST THE HEAD OF SUCH
DEPARTMENT OR INDEPENDENT AGENCY FOR A JUDGMENT DECLARING HIM TO BE A
NATIONAL OF THE UNITED STATES, EXCEPT THAT NO SUCH ACTION MAY BE
INSTITUTED IN ANY CASE IF THE ISSUE OF SUCH PERSON'S STATUS AS A
NATIONAL OF THE UNITED STATES (1) AROSE BY REASON OF, OR IN CONNECTION
WITH ANY EXCLUSION PROCEEDING UNDER THE PROVISIONS OF THIS OR ANY OTHER
ACT, OR (2) IS IN ISSUE IN ANY SUCH EXCLUSION PROCEEDING.  AN ACTION
UNDER THIS SUBSECTION MAY BE INSTITUTED ONLY WITHIN FIVE YEARS AFTER
THE FINAL ADMINISTRATIVE DENIAL OF SUCH RIGHT OR PRIVILEGE AND SHALL BE
FILED IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT IN
WHICH SUCH PERSON RESIDES OR CLAIMS A RESIDENCE, AND JURISDICTION OVER
SUCH OFFICIALS IN SUCH CASES IS HEREBY CONFERRED UPON THOSE COURTS. 

"(B) IF ANY PERSON WHO IS NOT WITHIN THE UNITED STATES CLAIMS A RIGHT
OR PRIVILEGE AS A NATIONAL OF THE UNITED STATES AND IS DENIED SUCH
RIGHT OR PRIVILEGE BY ANY DEPARTMENT OR INDEPENDENT AGENCY, OR OFFICIAL
THEREOF, UPON THE GROUND THAT HE IS NOT A NATIONAL OF THE UNITED
STATES, SUCH PERSON MAY MAKE APPLICATION TO A DIPLOMATIC OR CONSULAR
OFFICER OF THE UNITED STATES IN THE FOREIGN COUNTRY IN WHICH HE IS
RESIDING FOR A CERTIFICATE OF IDENTITY FOR THE PURPOSE OF TRAVELING TO
A PORT OF ENTRY IN THE UNITED STATES AND APPLYING FOR ADMISSION.  UPON
PROOF TO THE SATISFACTION OF SUCH DIPLOMATIC OR CONSULAR OFFICER THAT
SUCH APPLICATION IS MADE IN GOOD FAITH AND HAS A SUBSTANTIAL BASIS, HE
SHALL ISSUE TO SUCH PERSON A CERTIFICATE OF IDENTITY.  FROM ANY DENIAL
OF AN APPLICATION FOR SUCH CERTIFICATE THE APPLICANT SHALL BE ENTITLED
TO AN APPEAL TO THE SECRETARY OF STATE, WHO, IF HE APPROVES THE DENIAL,
SHALL STATE IN WRITING HIS REASONS FOR HIS DECISION.  THE SECRETARY OF
STATE SHALL PRESCRIBE RULES AND REGULATIONS FOR THE ISSUANCE OF
CERTIFICATES OF IDENTITY AS ABOVE PROVIDED.  THE PROVISIONS OF THIS
SUBSECTION SHALL BE APPLICABLE ONLY TO A PERSON WHO AT SOME TIME PRIOR
TO HIS APPLICATION FOR THE CERTIFICATE OF IDENTITY HAS BEEN PHYSICALLY
PRESENT IN THE UNITED STATES, OR TO A PERSON UNDER SIXTEEN YEARS OF AGE
WHO WAS BORN ABROAD OF A UNITED STATES CITIZEN PARENT. 

"(C) A PERSON WHO HAS BEEN ISSUED A CERTIFICATE OF IDENTITY UNDER THE
PROVISIONS OF SUBSECTION (B), AND WHILE IN POSSESSION THEREOF, MAY
APPLY FOR ADMISSION TO THE UNITED STATES AT ANY PORT OF ENTRY, AND
SHALL BE SUBJECT TO ALL THE PROVISIONS OF THIS ACT RELATING TO THE
CONDUCT OF PROCEEDINGS INVOLVING ALIENS SEEKING ADMISSION TO THE UNITED
STATES.  A FINAL DETERMINATION BY THE ATTORNEY GENERAL THAT ANY SUCH
PERSON IS NOT ENTITLED TO ADMISSION TO THE UNITED STATES SHALL BE
SUBJECT TO REVIEW BY ANY COURT OF COMPETENT JURISDICTION IN HABEAS
CORPUS PROCEEDINGS AND NOT OTHERWISE.  ANY PERSON DESCRIBED IN THIS
SHALL BE SUBJECT TO ALL THE PROVISIONS OF THIS ACT RELATING TO ALIENS
SEEKING ADMISSION TO THE UNITED STATES."  SECTION 360, 66 STAT. 273
274, 8 U.S.C. SEC. 1503.    FN2  THROUGHOUT THIS OPINION "NATIONALITY"
IS SPOKEN OF AS "CITIZENSHIP." 

FN3  SECTION 503, 54 STAT. 1171-1172, PROVIDES: 

"IF ANY PERSON WHO CLAIMS A RIGHT OR PRIVILEGE AS A NATIONAL OF THE
UNITED STATES IS DENIED SUCH RIGHT OR PRIVILEGE BY ANY DEPARTMENT OR
AGENCY, OR EXECUTIVE OFFICIAL THEREOF, UPON THE GROUND THAT HE IS NOT A
NATIONAL OF THE UNITED STATES, SUCH PERSON, REGARDLESS OF WHETHER HE IS
WITHIN THE UNITED STATES OR ABROAD, MAY INSTITUTE AN ACTION AGAINST THE
HEAD OF SUCH DEPARTMENT OR AGENCY IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT OF COLUMBIA OR IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT IN WHICH SUCH PERSON CLAIMS A PERMANENT
RESIDENCE FOR A JUDGMENT DECLARING HIM TO BE A NATIONAL OF THE UNITED
STATES.  IF SUCH PERSON IS OUTSIDE THE UNITED STATES AND SHALL HAVE
INSTITUTED SUCH AN ACTION IN COURT, HE MAY, UPON SUBMISSION OF A SWORN
APPLICATION SHOWING THAT THE CLAIM OF NATIONALITY PRESENTED IN SUCH
ACTION IS MADE IN GOOD FAITH AND HAS A SUBSTANTIAL BASIS, OBTAIN FROM A
DIPLOMATIC OR CONSULAR OFFICER OF THE UNITED STATES IN THE FOREIGN
COUNTRY IN WHICH HE IS RESIDING A CERTIFICATE OF IDENTITY STATING THAT
HIS NATIONALITY STATUS IS PENDING BEFORE THE COURT, AND MAY BE ADMITTED
TO THE UNITED STATES WITH SUCH CERTIFICATE UPON THE CONDITION THAT HE
SHALL BE SUBJECT TO DEPORTATION IN CASE IT SHALL BE DECIDED BY THE
COURT THAT HE IS NOT A NATIONAL OF THE UNITED STATES.  SUCH CERTIFICATE
OF IDENTITY SHALL NOT BE DENIED SOLELY ON THE GROUND THAT SUCH PERSON
HAS LOST A STATUS PREVIOUSLY HAD OR ACQUIRED AS A NATIONAL OF THE
UNITED STATES; AND FROM ANY DENIAL OF AN APPLICATION FOR SUCH
CERTIFICATE THE APPLICANT SHALL BE ENTITLED TO AN APPEAL TO THE
SECRETARY OF STATE, WHO, IF HE APPROVES THE DENIAL, SHALL STATE IN
WRITING THE REASONS FOR HIS DECISION.  THE SECRETARY OF STATE, WITH
APPROVAL OF THE ATTORNEY GENERAL, SHALL PRESCRIBE RULES AND REGULATIONS
FOR THE ISSUANCE OF CERTIFICATES OF IDENTITY AS ABOVE PROVIDED." 

FN4  SEE NOTE 25, INFRA. 

FN5  THAT IS, WHETHER THE ADMINISTRATIVE DETERMINATION HAD AFFORDED A
FAIR HEARING; WHETHER IT WAS SUPPORTED BY EVIDENCE; AND WHETHER IT HAD
BEEN REACHED UNDER CORRECT PRINCIPLES OF LAW.  SEE NG FUNG HO V. WHITE,
259 U.S. 276, 284. 

FN6  IT WAS AN EFFORT TO ALLAY THE DOUBTS OF THOSE WHO, ON THE ONE
HAND, WISHED TO ASSURE A FULL JUDICIAL REMEDY TO ALL CITIZENSHIP
CLAIMANTS, AND OF THOSE WHO, ON THE OTHER, FEARED THE POSSIBLE ABUSE OF
SUCH A REMEDY, THAT LED TO THE REMARKS OF ONE OF THE MANAGERS OF THE
HOUSE BILL (REPRESENTATIVE REES), QUOTED IN NOTE 8 OF THE COURT'S
OPINION, ANTE, P. 377.  SEE 86 CONG. REC. 13247. 

FN7  S. 3455, 81ST CONG., 2D SESS., SEC. 359, PP. 239-240 (1950). 

FN8  S. REP. NO. 1515, 81ST CONG., 2D SESS., PP. 776-777 (1950). 

FN9  THIS WAS THE VIEW OF THE IMMIGRATION AND NATURALIZATION SERVICE,
WHICH IN REPORTING ON THIS BILL STATED THAT THE NEW SECTION WAS
DESIGNED TO "REPLACE SECTION 503" AUTHORIZING A NONRESIDENT CITIZENSHIP
CLAIMANT "TO COME TO THIS COUNTRY AFTER FILING SUCH A SUIT IN ORDER TO
PROSECUTE IT TO A CONCLUSION."  SEE LEGISLATIVE HISTORY, IMMIGRATION &
NATIONALITY ACT, 82D CONG., VOL. 5 (ANALYSIS OF S. 3455), PP. 359-1 TO
359-2. 

FN10  S. 716, 82D CONG., 1ST SESS., SEC. 360, P. 262 (1951). 

FN11  H.R. 2379, 82D CONG., 1ST SESS., SEC. 360, PP. 263-264 (1951). 

FN12  H.R. 2816, 82D CONG., 1ST SESS., SEC. 360, PP. 260-261 (1951). 

FN13  JOINT HEARINGS BEFORE THE SUBCOMMITTEES OF THE COMMITTEES ON
THE JUDICIARY ON S. 716, H.R. 2379, AND H.R. 2816, 82D CONG., 1ST SESS.
(1951).  (HEREAFTER JOINT HEARINGS.) 

FN14  A LARGE NUMBER OF "LAY" WITNESSES EXPRESSED THEIR VIEWS BEFORE
THE JOINT COMMITTEE.  ALL WERE HIGHLY CRITICAL OF THE MCCARRAN AND
WALTER BILLS WHICH AFFORDED NO DECLARATORY REMEDY TO NONRESIDENT
CITIZENSHIP CLAIMANTS, BUT MOST HAD NOT HEARD OF THE SO-CALLED "CHINESE
DERIVATIVE SUIT" AND OTHER PROBLEMS EXPERIENCED UNDER SEC. 503. 
(SUPRA, PP. 390-391.)  ON THE OTHER HAND, IT IS ENTIRELY EVIDENT FROM
THE QUESTIONING OF ALL WITNESSES THAT THE PROBLEM WHICH WAS UPPERMOST
IN THE MINDS OF THE COMMITTEE MEMBERS ON THIS ASPECT OF THE BILLS WAS
HOW BEST TO AFFORD ADEQUATE JUDICIAL RELIEF TO NONRESIDENTS UNDER TIGHT
CONTROLS WHICH WOULD MINIMIZE THE DANGERS OF ABUSE.  JOINT HEARINGS,
PP. 106-109, 338-339, 443-444, 522. 

FN15  THE STATE DEPARTMENT REPRESENTATIVE NOTED THAT THE PROPOSED
MCCARRAN BILL "WITHDRAWS FROM ALL PERSONS ABROAD THE RIGHT TO OBTAIN
THE JUDICIAL REVIEW OF THEIR CLAIMS OF CITIZENSHIP WHICH IS GRANTED TO
THEM BY SECTION 503 OF THE NATIONALITY ACT OF 1940."  JOINT HEARINGS,
P. 710.  THE REPRESENTATIVE OF THE DEPARTMENT OF JUSTICE DESCRIBED
MATTERS IN THE SAME VEIN.  JOINT HEARINGS, P. 720. 

FN16  JOINT HEARINGS, P. 710. 

FN17  THE DEPARTMENT'S STATEMENT READ: 

"THE DEPARTMENT OF JUSTICE OBJECTS TO THE ENACTMENT OF SECTION 360
UNLESS IT IS AMENDED TO PROVIDE FOR THE PROTECTION OF PERSONS ABROAD
WHO HAVE MORE THAN A FRIVOLOUS CLAIM TO CITIZENSHIP BUT WHO ARE UNABLE
TO OBTAIN A UNITED STATES PASSPORT.  TO PROTECT SUCH PERSONS THE
DEPARTMENT RECOMMENDS ADDING TO SECTION 360 LANGUAGE WHICH WOULD PERMIT
THE ISSUANCE TO SUCH PERSONS OF A SPECIAL CERTIFICATE OF IDENTITY OR A
SPECIAL 'VISA.'  THAT DOCUMENT SHOULD BE DESCRIBED IN SUCH A MANNER AS
MERELY TO AUTHORIZE THE PERSON IN QUESTION TO PROCEED TO A PORT IN THE
UNITED STATES AND APPLY FOR ADMISSION AS A NATIONAL, IN THE USUAL
MANNER  ...  .  HOWEVER, THE INTENT OF THIS SUGGESTION IS THAT THE
PERSON CLAIMING CITIZENSHIP SHALL BE REQUIRED TO APPLY FOR ADMISSION TO
THE UNITED STATES AT A PORT OF ENTRY AND GO THROUGH THE USUAL
SCREENING, INTERROGATION, AND INVESTIGATION, APPLICABLE IN THE CASES OF
OTHER PERSONS SEEKING ADMISSION TO THE UNITED STATES, SO THAT THE
IMMIGRATION AND NATURALIZATION SERVICE WILL HAVE AS COMPLETE A RECORD
AS POSSIBLE ON EACH PERSON ENTERING THIS COUNTRY CLAIMING TO BE A
NATIONAL THEREOF."  JOINT HEARINGS, P. 721. 

FN18  S. 2055, 82D CONG., 1ST SESS., SEC. 360, PP. 277-279 (1951). 

FN19  H.R. 5678, 82D CONG., 1ST SESS., SEC. 360, PP. 150-152 (1951). 
THE CELLER BILL, H.R.  2816, WHICH, LIKE SEC. 503, PROPOSED A JUDICIAL
REMEDY FOR BOTH RESIDENT AND NONRESIDENT CITIZENSHIP CLAIMANTS,
SCARCELY FIGURED IN THE JOINT HEARINGS DISCUSSION. 

FN20  "FOLLOWING THE JOINT HEARINGS AND IN THE COURSE OF NUMEROUS
CONFERENCES ATTENDED BY ADVISERS REPRESENTING UNOFFICIALLY THE
DEPARTMENTS OF STATE AND JUSTICE, TWO MODIFIED VERSIONS OF THE ABOVE
MENTIONED THREE BILLS (S. 716, H.R. 2379, H.R. 2816) WERE INTRODUCED
...  ."  H.R. REP. NO. 1365, TO ACCOMPANY H.R. 5678, 82D CONG., 2D
SESS., P. 28 (1952). 

FN21  IT SHOULD BE NOTED THAT THERE WAS ADDED TO WHAT IN THE FINAL
RESULT BECAME SUBSECTION (A) OF SEC. 360, RELATING TO RESIDENT
CLAIMANTS, A SPECIFIC REFERENCE TO 28 U.S.C. SEC. 2201, THE DECLARATORY
JUDGMENT ACT, WHICH HAD NOT BEEN IN SEC. 503.  NO REFERENCE TO 28
U.S.C. SEC.  2201 WAS INCLUDED IN WHAT ULTIMATELY BECAME SUBSECTION
(B). 

FN22  WHEREAS THE STATE DEPARTMENT HAD PROPOSED THAT DECLARATORY
RELIEF, AS TO NONRESIDENTS, SHOULD BE LIMITED TO THOSE WHO HAD LOST
THEIR AMERICAN CITIZENSHIP, THE WALTER BILL PROVIDED DECLARATORY RELIEF
FOR ANY CLAIMANT ABROAD, BUT LIMITED ELIGIBILITY FOR A CERTIFICATE OF
IDENTITY TO THOSE WHO HAD BEEN "PHYSICALLY" IN THE UNITED STATES AT
SOME PRIOR TIME, OR TO A PERSON WHO WAS BORN ABROAD OF AN AMERICAN
CITIZEN PARENT AND WHO WISHED TO COME TO THE UNITED STATES TO MEET
RESIDENTIAL REQUIREMENTS FOR THE RETENTION OF CITIZENSHIP.  AFTER A
DECLARATORY ACTION WAS FILED, THE BILL PROVIDED THAT THE CLAIMANT "MAY"
MAKE APPLICATION FOR A CERTIFICATE OF IDENTITY "FOR THE PURPOSE OF
TRAVELING TO THE UNITED STATES TO PROSECUTE HIS ACTION FOR
DETERMINATION OF HIS CITIZENSHIP STATUS." 

FN23  AT P. 22 OF HIS BRIEF BEFORE THIS COURT THE APPELLEE, CORT,
QUOTES EXTENSIVELY FROM THE HOUSE REPORT WHICH ACCOMPANIED H.R. 5678 -
H.R. REP. NO. 1365, 82D CONG.,2D SESS., PP.  87-88 (1952) - TO SUPPORT
HIS CONTENTION THAT PRESENT SEC. 360 WAS NOT DESIGNED TO PROHIBIT A
SUIT FOR A DECLARATORY JUDGMENT BY A NONRESIDENT CLAIMANT, BUT ONLY TO
LIMIT THE USE OF CERTIFICATES OF IDENTITY TO GAIN ENTRY IN THIS
COUNTRY.  HOWEVER TRUE THIS MAY BE AS TO SEC.  360 OF H.R. 5678, CORT'S
RELIANCE ON THAT BILL IS MISPLACED SINCE THE HOUSE BILL WAS REJECTED IN
CONFERENCE AND THE SENATE VERSION OF SEC. 360 WAS EVENTUALLY PASSED BY
BOTH HOUSES AND BECAME LAW. 

FN24  A QUALIFYING PHRASE, "AS A NATIONAL OF THE UNITED STATES," WAS
DELETED FROM SUBSECTIONS (B) AND (C). 

FN25 THE CONFEREES MODIFIED SEC. 360 OF S. 2550 IN TWO MINOR
RESPECTS.  IN SUBSECTION (A), A REFERENCE TO "DEPORTATION PROCEEDINGS"
WAS DELETED, SO THAT THE DISABILITY TO BRING DECLARATORY RELIEF FOR A
PERSON "WITHIN THE UNITED STATES" WAS LIMITED ONLY IF THE ISSUE OF
NATIONALITY AROSE IN AN "EXCLUSION" PROCEEDING.  (COMPARE NOTE 1 AND
TEXT ACCOMPANYING NOTE 2, SUPRA, WITH S. REP. NO. 1137, SUPRA, PP. 386
387.)  IN SUBSECTION (B) "A PERSON UNDER SIXTEEN YEARS OF AGE WHO WAS
BORN ABROAD OF A UNITED STATES CITIZEN PARENT" WAS ALSO MADE ELIGIBLE
FOR A CERTIFICATE OF IDENTITY.  (COMPARE NOTE 1 WITH S. REP. NO. 1137,
SUPRA, PP.  386-387.) 

FN26  IN ADDITION TO FLEMMING V. NESTOR, THE COURT CITES TWO OPINIONS
FROM THE DISTRICT OF COLUMBIA CIRCUIT, STEWART V. DULLES, 101 U.S. APP.
D.C. 280, 248 F.2D 602; BAUER V. ACHESON, 106 F. SUPP. 445, IN SUPPORT
OF ITS SWEEPING STATEMENT THAT "THE FACT THAT THE PLAINTIFF IS NOT
WITHIN THE UNITED STATES HAS NEVER BEEN THOUGHT TO BAR AN ACTION FOR A
DECLARATORY JUDGMENT OF THIS NATURE."  IF THE PHRASE "OF THIS NATURE"
IS INTENDED TO REFER TO CITIZENSHIP CLAIMS, THE TWO CASES ARE
INAPPOSITE SINCE NEITHER DETERMINED CITIZENSHIP; IN BOTH CASES THE
ISSUE WAS WHETHER THE STATE DEPARTMENT COULD REFUSE TO RENEW A
PASSPORT, EXCEPT FOR THE LIMITED PURPOSE OF RETURNING TO THIS COUNTRY,
WITHOUT AFFORDING A HEARING.  MOREOVER, TAKING THAT PHRASE AS REFERRING
TO CITIZENSHIP CLAIMS, COMPARE BOTH THE DECISION OF THE DISTRICT COURT
IN THE PRESENT CASE, 187 F. SUPP. 683, AND TOM MUNG NGOW V. DULLES, 122
F. SUPP. 709, WITH D'ARGENTO V. DULLES, 113 F. SUPP. 933.  933. 

FN27  THIS IS NOT SO NOW.  SEE THE 1961 AMENDMENTS TO THE IMMIGRATION
AND NATIONALITY ACT OF 1952, NOTE 28, INFRA. 

FN28  IT IS NOT WITHOUT IRONY THAT LESS THAN A YEAR AGO CONGRESS,
WITH THE SUPPORT OF THE DEPARTMENT OF JUSTICE, ACTED TO TIGHTEN STILL
FURTHER THE IMMIGRATION AND NATIONALITY ACT OF 1952.  PUBLIC LAW 87
301, 75 STAT. 650 (EFFECTIVE OCTOBER 26, 1961), AMENDING THE 1952 ACT
IN VARIOUS RESPECTS, AMONG OTHER THINGS MAKES HABEAS CORPUS THE SOLE
JUDICIAL REMEDY IN EXCLUSION PROCEEDINGS, THEREBY IN EFFECT REJECTING
BROWNELL V. TOM WE SHUNG, SUPRA, WHICH HAD HELD THE ADMINISTRATIVE
PROCEDURE ACT ALSO AVAILABLE IN SUCH CASES.  SEE 8 U.S.C. SEC. 1105A
(SUPP. III 1962); H.R. REP. NO. 1086, 87TH CONG., 1ST SESS., PP. 22-23
(1961). 
..END :









IN RE ZIPKIN 369 U.S. 400 


NO. 288.  ARGUED MARCH 28-29, 1962 - DECIDED APRIL 2, 1962 - WRIT
DISMISSED AS IMPROVIDENTLY GRANTED.  - REPORTED BELOW: - S.W.2D - .


IN RE ZIPKIN. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS DISSENT. 
..END :
















CROSS V. FLORIDA 369 U.S. 400 


NO. 425.  DECIDED APRIL 2, 1962 - APPEAL DISMISSED; CERTIORARI DENIED. 
REPORTED BELOW: 138 SO. 2D 338. 


CROSS ET AL. V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















GRANT V. UNITED STATES 369 U.S. 401 


NO. 297.  DECIDED APRIL 2, 1962 - REPORTED BELOW:  291 F.2D 227. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED WITH INSTRUCTIONS
TO DISMISS THE APPEAL. 

GRANT ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IS VACATED AND
THE CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE
APPEAL.  DIBELLA V. UNITED STATES, 369 U.S. 121. 
..END :











MURPHY V. UNITED STATES 369 U.S. 402 


NO. 317.  DECIDED APRIL 2, 1962 - REPORTED BELOW:  290 F.2D 573. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED WITH INSTRUCTIONS
TO DISMISS THE APPEAL. 

MURPHY ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT IS VACATED AND THE
CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE
APPEAL.  DIBELLA V. UNITED STATES, 369 U.S. 121. 

MR. JUSTICE BLACK DISSENTS. 
..END :









GREENE V. UNITED STATES 369 U.S. 403 


NO. 687.  DECIDED APRIL 2, 1962 - REPORTED BELOW:  296 F.2D 841. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED WITH INSTRUCTIONS
TO DISMISS THE APPEAL. 

GREENE ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IS VACATED AND
THE CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE
APPEAL.  DIBELLA V. UNITED STATES, 369 U.S. 121. 
..END :











KESLER V. DEPARTMENT OF PUBLIC SAFETY OF UTAH 369 U.S. 153 


NO. 14.  ARGUED OCTOBER 10, 1961 - DECIDED MARCH 26, 1962 - 187 F. SUPP.
277, AFFIRMED. 


UNDER UTAH'S MOTOR VEHICLE SAFETY RESPONSIBILITY ACT, WHICH GIVES
JUDGMENT CREDITORS CONTROL OVER THE INITIATION AND DURATION OF
SUSPENSIONS, APPELLANT'S AUTOMOBILE REGISTRATION AND OPERATOR'S LICENSE
WERE SUSPENDED BECAUSE OF HIS FAILURE TO SATISFY JUDGMENTS BASED ON HIS
NEGLIGENT OPERATION OF AN AUTOMOBILE.  AFTER BEING GRANTED A VOLUNTARY
DISCHARGE IN BANKRUPTCY RELEASING HIM FROM THE JUDGMENT DEBTS, HE
APPLIED TO STATE AUTHORITIES FOR RESTORATION OF HIS AUTOMOBILE
REGISTRATION AND OPERATOR'S LICENSE.  THIS WAS DENIED, BECAUSE THE
STATE STATUTE REQUIRES SATISFACTION OF THE JUDGMENTS AS A CONDITION OF
REINSTATEMENT AND PROVIDES SPECIFICALLY THAT A DISCHARGE IN BANKRUPTCY
SHALL NOT RELIEVE A JUDGMENT DEBTOR FROM THIS REQUIREMENT.  HE SUED IN
A FEDERAL DISTRICT COURT TO ENJOIN STATE OFFICIALS FROM ENFORCING THIS
PROVISION, ON THE GROUND THAT IT CONFLICTED WITH SEC. 17 OF THE
BANKRUPTCY ACT AND, THEREFORE, WAS VOID UNDER THE SUPREMACY CLAUSE OF
THE CONSTITUTION.  A THREE-JUDGE DISTRICT COURT DENIED RELIEF, AND HE
APPEALED DIRECTLY TO THIS COURT.  HELD: 

1.  UNDER 28 U.S.C. SEC. 2281, THIS CASE WAS REQUIRED TO BE HEARD AND
DETERMINED BY A THREE-JUDGE DISTRICT COURT, AND THIS COURT HAS
JURISDICTION OF THIS DIRECT APPEAL UNDER SEC. 1253.  PP. 155-158. 

2.  THIS STATE STATUTE IS NOT UNCONSTITUTIONAL UNDER THE SUPREMACY
CLAUSE BECAUSE OF CONFLICT WITH SEC. 17 OF THE BANKRUPTCY ACT.  PP. 158
174. 

KESLER V. DEPARTMENT OF PUBLIC SAFETY OF UTAH. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE RATHER RARE CLAIM OF CONFLICT BETWEEN AN
OTHERWISE VALID EXERCISE OF A STATE'S SO-CALLED POLICE POWER AND THE
OVERRIDING AUTHORITY OF THE BANKRUPTCY ACT.  (FN1)  THE STATUTE BEFORE
US IS UTAH'S MOTOR VEHICLE SAFETY RESPONSIBILITY ACT (FN2) - A MEASURE
DIRECTED TOWARDS PROMOTING SAFETY IN AUTOMOBILE TRAFFIC BY
ADMINISTRATIVE AND COMPENSATORY REMEDIES CALCULATED TO RESTRAIN
CARELESS DRIVING.  ITS PURPOSE IS WHOLLY UNRELATED TO THE PURPOSES OF
THE BANKRUPTCY ACT. 

IN JUNE 1957, A UTAH COURT ENTERED JUDGMENTS IN DAMAGES AGAINST
APPELLANT, BASED ON HIS ALLEGEDLY NEGLIGENT OPERATION OF AN
AUTOMOBILE.  ON APPEAL TO THE STATE'S SUPREME COURT THE JUDGMENTS WERE
AFFIRMED.  AFTER THE JUDGMENTS HAD REMAINED UNPAID FOR SIXTY DAYS OR
MORE, THE JUDGMENT CREDITORS REQUESTED THE COURT CLERK TO FORWARD TO
THE DEPARTMENT OF PUBLIC SAFETY CERTIFIED COPIES OF THE JUDGMENTS, AS
PROVIDED BY THE SAFETY RESPONSIBILITY ACT.  THEREUPON THE DEPARTMENT
SUSPENDED APPELLANT'S AUTOMOBILE REGISTRATION AND HIS OPERATOR'S
LICENSE.  ON DECEMBER 31, 1959, APPELLANT WAS GRANTED A VOLUNTARY
DISCHARGE IN BANKRUPTCY, RELEASING HIM FROM THE JUDGMENT DEBTS.  HE
THEN SOUGHT RESTORATION OF HIS LICENSE AND REGISTRATION.  THIS WAS
DENIED.  THE SAFETY RESPONSIBILITY ACT REQUIRES SATISFACTION OF
JUDGMENTS DUE TO AUTO ACCIDENTS AS A CONDITION OF REINSTATEMENT AND
SPECIFICALLY PROVIDES THAT A DISCHARGE IN BANKRUPTCY SHALL NOT RELIEVE
THE JUDGMENT DEBTOR FROM THIS REQUIREMENT.  APPELLANT INITIATED THIS
ANCILLARY BANKRUPTCY PROCEEDING, LOCAL LOAN CO. V. HUNT.  292 U.S. 234,
239, IN THE UNITED STATES DISTRICT COURT FOR UTAH, SEEKING AN ORDER
REQUIRING RESTORATION OF HIS PRIVILEGES AND A DECLARATION THAT THE UTAH
LAW WAS INVALID INSOFAR AS IT DISRESPECTED THE DISCHARGE OF THE
JUDGMENT DEBT BY VIRTUE OF SEC. 17 OF THE BANKRUPTCY ACT, 11 U.S.C.
SEC. 35.  A THREE-JUDGE DISTRICT COURT, 28 U.S.C. SEC. 2281, UPHELD THE
STATUTE AND DENIED RELIEF, 187 F. SUPP. 277 (1960).  THE CASE WAS
BROUGHT HERE ON DIRECT APPEAL, 28 U.S.C. SEC. 1253, AND WE NOTED
PROBABLE JURISDICTION, 364 U.S. 940. 

A PRELIMINARY POINT OF JURISDICTION IS NOTED THOUGH IT WAS NOT
ADVERTED TO EITHER BY THE DISTRICT COURT OF BY THE PARTIES.  WAS THIS A
PROPER CASE FOR CONVENING A THREE-JUDGE COURT, AS IT MUST HAVE BEEN TO
JUSTIFY DIRECT APPEAL TO THIS COURT?  THE PRESENT SUIT ASKS THAT STATE
OFFICIALS BE "RESTRAINED AND ENJOINED" FROM ENFORCING DESIGNATED
THEY "ARE UNCONSTITUTIONAL AND VOID," IN THAT THEY ARE IN CONFLICT WITH
SEC. 17 OF THE BANKRUPTCY ACT AND THEREFORE NECESSARILY VIOLATIVE OF
THE SUPREMACY CLAUSE OF THE CONSTITUTION OF THE UNITED STATES, ART. VI.
IT WOULD SEEM TO BE COMPELLINGLY CLEAR THAT THIS CASE FALLS WITHIN
SEC. 2281 OF TITLE 28 OF THE U.S.C.  WHICH BARS A SUIT FOR AN
INJUNCTION "UPON THE GROUND OF THE UNCONSTITUTIONALITY" OF A STATE
STATUTE "UNLESS THE APPLICATION THEREFOR IS HEARD AND DETERMINED BY A
DISTRICT COURT OF THREE JUDGES."  THIS WAS SO HEARD AND APPEAL WAS
PROPERLY BROUGHT DIRECTLY HERE, UNLESS INVALIDATION OF A STATE STATUTE
BY VIRTUE OF THE SUPREMACY CLAUSE RESTS ON A DIFFERENT CONSTITUTIONAL
BASIS THAN SUCH INVALIDATION BECAUSE OF CONFLICT WITH ANY OTHER CLAUSE
OF THE CONSTITUTION, AT LEAST TO THE EXTENT OF READING SUCH AN IMPLIED
EXCEPTION INTO THE PROCEDURE DEVISED BY SEC. 2281.  NEITHER THE
LANGUAGE OF SEC. 2281 NOR THE PURPOSE WHICH GAVE RISE TO IT AFFORDS THE
REMOTEST REASON FOR CARVING OUT AN UNFRIVOLOUS CLAIM OF
UNCONSTITUTIONALITY BECAUSE OF THE SUPREMACY CLAUSE FROM THE
COMPREHENSIVE LANGUAGE OF SEC. 2281. 

BEARING IN MIND THAT THE REQUIREMENT FOR DISTRICT COURT LITIGATION OF
THREE JUDGES, OF WHOM ONE MUST BE A JUSTICE OF THIS COURT OR A CIRCUIT
JUDGE, INVOLVES A SERIOUS DRAIN UPON THE FEDERAL JUDICIAL MANPOWER,
"PARTICULARLY IN REGIONS WHERE, DESPITE MODERN FACILITIES, DISTANCE
STILL PLAYS AN IMPORTANT PART IN THE EFFECTIVE ADMINISTRATION OF
JUSTICE  ...  ," THIS COURT HAS BEEN LED BY A LONG SERIES OF DECISIONS,
IN A VARIETY OF SITUATIONS, TO GENERALIZE THAT THIS PROCEDURAL DEVICE
WAS NOT TO BE VIEWED "AS A MEASURE OF BROAD SOCIAL POLICY TO BE
CONSTRUED WITH GREAT LIBERALITY, BUT AS AN ENACTMENT TECHNICAL IN THE
STRICT SENSE OF THE TERM AND TO BE APPLIED AS SUCH."  PHILLIPS V.
UNITED STATES, 312 U.S. 246, 250-251.  THE COURT HAD ALREADY HELD THAT
THE THREE-JUDGE REQUIREMENT IS NOT TO BE INVOKED ON A CONTINGENT
CONSTITUTIONAL QUESTION.  INTERNATIONAL LADIES' GARMENT WORKERS V.
DONNELLY CO., 304 U.S. 243, 251.  THE COURT HAS BEEN CONSISTENT IN THIS
VIEW IN DEALING WITH CLAIMS OF CONFLICT BETWEEN A STATE STATUTE AND A
FEDERAL STATUTE WHICH HAS THE CONSTITUTIONAL RIGHT OF WAY. 

BEARING IN MIND THAT DUE REGARD FOR THE HEALTHY WORKING OF THE
FEDERAL JUDICIAL SYSTEM DEMANDS THAT THE THREE-JUDGE COURT REQUIREMENT
BE TREATED AS "AN ENACTMENT TECHNICAL IN THE STRICT SENSE OF THE TERM,"
WE MUST EXAMINE THE BASIS OF THE PLAINTIFF'S CLAIM TO DETERMINE WHETHER
IT MUST COME BEFORE A SINGLE JUDGE OR THREE JUDGES.  IF IN IMMEDIATE
CONTROVERSY IS NOT THE UNCONSTITUTIONALITY OF A STATE LAW BUT MERELY
THE CONSTRUCTION OF A STATE LAW OR THE FEDERAL LAW, THE THREE-JUDGE
REQUIREMENT DOES NOT BECOME OPERATIVE.  SUCH WAS THE RULING IN EX PARTE
BUDER, 271 U.S. 461, WHERE THE SUPREMACY CLAUSE WAS NOT INVOKED AND
THEREFORE THE THREE-JUDGE COURT WAS NOT REQUIRED.  IN EX PARTE
BRANSFORD, 310 U.S. 354, BUDER WAS FOLLOWED.  A THREE-JUDGE COURT WAS
NOT REQUIRED BECAUSE THE ISSUE WAS "MERELY THE CONSTRUCTION OF AN ACT
OF CONGRESS, NOT THE CONSTITUTIONALITY OF THE STATE ENACTMENT."  310
U.S., AT 359.  CONTRARIWISE, IN QUERY V. UNITED STATES, 316 U.S. 486,
THE COMPLAINANT SOUGHT TO RESTRAIN THE STATE OFFICERS FROM ENFORCING A
STATE STATUTE ON THE SCORE OF UNCONSTITUTIONALITY OF ITS THREATENED
APPLICATION.  316 U.S., AT 489.  ACCORDINGLY, THE REQUIREMENT OF A
THREE-JUDGE COURT APPLIED.  QUERY V. UNITED STATES AND EX PARTE
BRANSFORD WERE CLEARLY DIFFERENTIATED FROM ONE ANOTHER IN CASE V.
BOWLES, 327 U.S. 92, WHERE, AS IN BRANSFORD, "THE COMPLAINT DID NOT
CHALLENGE THE CONSTITUTIONALITY OF THE STATE STATUTE BUT ALLEGED MERELY
THAT ITS ENFORCEMENT WOULD VIOLATE THE EMERGENCY PRICE CONTROL ACT. 
CONSEQUENTLY A THREE-JUDGE COURT IS NOT REQUIRED."  327 U.S., AT 97. 

HERE, NO QUESTION OF STATUTORY CONSTRUCTION, EITHER OF A STATE OR A
FEDERAL ENACTMENT, IS IN CONTROVERSY.  WE ARE CONFRONTED AT ONCE WITH
THE CONSTITUTIONAL QUESTION WHETHER THE DISCHARGE IN BANKRUPTCY OF A
DEBT OUSTS THE POLICE POWER OF A STATE FROM A RELEVANT SAFETY MEASURE,
THE INDIRECT AND EPISODIC CONSEQUENCE OF WHICH MAY HAVE SOME BEARING ON
A DISCHARGED DEBT BUT WHICH IN NO WISE RESUSCITATES IT AS AN
OBLIGATION.  THE GENERAL PRINCIPLE ELUCIDATED BY MR. JUSTICE CARDOZO IN
DIFFERENTIATING BETWEEN DIFFERENT STAGES OF ADJUDICATION AT WHICH
ISSUES ARE REACHED, GULLY V. FIRST NATIONAL BANK, 299 U.S. 109, 117
118, SERVES TO GUIDE DISPOSITION OF THIS CASE AS IT DIFFERENTLY DID
PHILLIPS V. UNITED STATES, SUPRA.  THIS CASE PRESENTS A SOLE, IMMEDIATE
CONSTITUTIONAL QUESTION, DIFFERING FROM BUDER, BRANSFORD, AND CASE,
WHICH PRESENTED ISSUES OF STATUTORY CONSTRUCTION EVEN THOUGH PERHAPS
EVENTUALLY LEADING TO A CONSTITUTIONAL QUESTION. 

THE PROBLEM OF HIGHWAY SAFETY HAS CONCERNED LEGISLATURES SINCE THE
EARLY YEARS OF THE CENTURY.  UTAH, LIKE OTHER STATES, HAS RESPONDED TO
THIS PROBLEM BY REQUIRING THE REGISTRATION (FN3) AND INSPECTION (FN4)
OF VEHICLES AND PRESCRIBING CERTAIN NECESSARY EQUIPMENT; (FN5) BY
REQUIRING EXAMINATION AND LICENSING OF OPERATORS AND EXCLUDING
UNQUALIFIED PERSONS FROM DRIVING; (FN6) BY PROVIDING COMPREHENSIVE
REGULATIONS OF SPEED AND OTHER TRAFFIC CONDITIONS; (FN7) AND BY
AUTHORIZING EXTRATERRITORIAL SERVICE OF PROCESS ON NONRESIDENT
MOTORISTS INVOLVED IN ACCIDENTS WITHIN THE STATE.   (FN8)  AND, LIKE
EVERY OTHER STATE, UTAH HAS RESPONDED BY ENACTING A FINANCIAL
RESPONSIBILITY LAW. 

FINANCIAL-RESPONSIBILITY LAWS ARE INTENDED TO DISCOURAGE CARELESS
DRIVING OR TO MITIGATE ITS CONSEQUENCES BY REQUIRING AS A CONDITION OF
LICENSING OR REGISTRATION THE SATISFACTION OF OUTSTANDING ACCIDENT
JUDGMENTS, THE POSTING OF SECURITY TO COVER POSSIBLE LIABILITY FOR A
PAST ACCIDENT, OR THE FILING OF AN INSURANCE POLICY OR OTHER PROOF OF
ABILITY TO RESPOND IN DAMAGES IN THE FUTURE.  BY 1915 A SAN FRANCISCO
ORDINANCE REQUIRED A BOND OR LIABILITY INSURANCE FOR ALL BUSES; (FN9) A
NUMBER OF OTHER CITIES AND STATES EARLY ENACTED SIMILAR PROVISIONS. 
(FN10)  IN 1925 MASSACHUSETTS FORBADE THE REGISTRATION OF ANY MOTOR
VEHICLE WITHOUT PROOF OF ADEQUATE LIABILITY INSURANCE OR OTHER EVIDENCE
OF ABILITY TO SATISFY A JUDGMENT.  MASS. LAWS 1925, C. 346.  THAT SAME
YEAR THE COMMISSIONERS ON UNIFORM LAWS APPOINTED A COMMITTEE TO
CONSIDER A UNIFORM COMPULSORY INSURANCE LAW.  HANDBOOK OF THE NATIONAL
CONFERENCE ON UNIFORM STATE LAWS (1932), P. 261. 

UNWILLING TO REQUIRE INSURANCE OR ITS EQUIVALENT FROM ALL HIGHWAY
USERS, SIX OTHER STATES - FIVE OF THEM IN NEW ENGLAND - ADOPTED WITHIN
THE NEXT TWO YEARS LAWS WITH THE SAME DESIGN BUT LIMITED TO CARELESS
DRIVERS.  THE FIRST OF THESE, CONNECTICUT ACTS 1925, C. 183, PROVIDED
FOR SUSPENSION OF THE REGISTRATION OF THOSE CONVICTED OF CERTAIN
INFRACTIONS RELATING TO MOTOR VEHICLES AND OF THOSE CAUSING ACCIDENTS
OF SPECIFIED GRAVITY, REQUIRING PROOF OF FINANCIAL RESPONSIBILITY AS A
CONDITION TO RESTORATION.  VERMONT ENACTED A SIMILAR PROVISION, ACTS
1927, NO. 81.  MAINE'S LAW, LAWS 1927, C. 210, AND MINNESOTA'S, LAWS
1927, C. 412, SEC. 61(B), APPLIED ONLY TO VIOLATIONS.  (FN11)  RHODE
ISLAND, ACTS 1927, C. 1040, ORIGINALLY REQUIRED PROOF ONLY AFTER
ACCIDENTS RESULTING FROM VIOLATIONS; ACTS 1929, C. 1429, REQUIRED PROOF
IN ADDITION NOT ONLY OF PERSONS VIOLATING CERTAIN LAWS BUT OF ALL
MINORS AS WELL.  IN NEW HAMPSHIRE, LAWS 1927, C. 54, SECURITY TO COVER
A POTENTIAL JUDGMENT WAS REQUIRED ON REQUEST OF THE PLAINTIFF IN AN
ACCIDENT CASE, IF FAULT APPEARED AFTER PRELIMINARY INQUIRY. 

IN 1929 SEVEN STATES ENACTED LAWS PROVIDING FOR THE FIRST TIME THAT
DRIVING PRIVILEGES BE SUSPENDED FOLLOWING AN ADVERSE JUDGMENT IN
DAMAGES.  VERMONT ADDED TO HER EARLIER STATUTE A PROVISION SUSPENDING
PRIVILEGES OF ANYONE AGAINST WHOM THERE WAS AN OUTSTANDING JUDGMENT
BASED ON A TRAFFIC VIOLATION UNTIL PROOF WAS MADE OF FINANCIAL
RESPONSIBILITY.  VT. ACTS 1929, NO. 76.  CONNECTICUT, MAINE, AND
WISCONSIN SUSPENDED THE PRIVILEGES OF THE JUDGMENT DEBTOR UNTIL THE
JUDGMENT WAS SATISFIED.  CONN. ACTS 1929, C. 297, SEC. 25; (FN12) ME.
LAWS 1929, C. 209; WIS. LAWS 1929, C. 76.  IN CONNECTICUT, HOWEVER,
SUSPENSION WAS ONLY TO OCCUR IF THE JUDGMENT REMAINED UNPAID FOR SIXTY
DAYS, AND THEN ONLY "UPON COMPLAINT  ...  BY ANY PREVAILING PARTY" IN
THE LAWSUIT.  IOWA'S LAW WAS SUBSTANTIALLY SIMILAR, GIVING THE CREDITOR
CONTROL BY PROVIDING THAT "A TRANSCRIPT OF SUCH JUDGMENT ...  MAY BE
FILED" TO INITIATE SUSPENSION.  IOWA LAWS 1929, C. 118.  (FN13)
CALIFORNIA REQUIRED COURT CLERKS TO TRANSMIT TO THE VEHICLE
ADMINISTRATOR NOTICE OF JUDGMENTS UNPAID FOR FIFTEEN DAYS; THE DEBTOR'S
LICENSE AND REGISTRATION WERE THEREUPON TO BE SUSPENDED UNTIL BOTH THE
DEBT WAS DISCHARGED AND PROOF OF FINANCIAL RESPONSIBILITY WAS GIVEN. 
CAL. STAT. 1929, C. 258, SEC.  4.  NEW YORK ADOPTED A LAW MATERIALLY
THE SAME AS CALIFORNIA'S, PROVIDING IN ADDITION THAT A DISCHARGE IN
BANKRUPTCY SHOULD NOT RELIEVE THE JUDGMENT DEBTOR OF THESE REQUIREMENTS
AND ALSO SUSPENDING PRIVILEGES PENDING PROOF AFTER CONVICTION FOR
CERTAIN VIOLATIONS.  N.Y.  LAWS 1929, C. 695. 

ABANDONING THE DRIVE FOR A UNIFORM COMPULSORY-INSURANCE LAW AS NOT
THEN FEASIBLE, THE COMMISSIONERS ON UNIFORM LAWS IN 1929 BEGAN WORK ON
A MORE LIMITED FINANCIAL-RESPONSIBILITY ACT.  AS FINALLY APPROVED BY
THE CONFERENCE IN 1932, THE UNIFORM AUTOMOBILE LIABILITY SECURITY ACT
COMBINED FEATURES FROM SEVERAL OF THE STATUTES ALREADY IN FORCE.  PROOF
OF FINANCIAL RESPONSIBILITY WAS REQUIRED TO BE MAINTAINED FOR A MINIMUM
OF THREE YEARS BY FOUR CLASSES OF PERSONS:  (1) THOSE CONVICTED OF
CERTAIN VIOLATIONS; (2) THOSE WISHING TO OBTAIN OR RENEW DRIVING
PRIVILEGES, AND WHO HAD BEEN AT FAULT IN TWO ACCIDENTS OF SPECIFIED
GRAVITY DURING THE PRECEDING YEAR; (3) MINORS; (4) THOSE AGAINST WHOM A
JUDGMENT OF A CERTAIN MAGNITUDE HAD REMAINED UNSATISFIED FOR FIFTEEN
DAYS.  THE PROVISIONS REGARDING JUDGMENTS FOLLOWED THOSE OF CALIFORNIA
AND NEW YORK:  THE COURT OR CLERK WAS TO FORWARD NOTICE OF ALL
UNSATISFIED JUDGMENTS, AND THE DEBTOR'S PRIVILEGES WERE TO BE SUSPENDED
UNTIL BOTH SATISFACTION OF THE OBLIGATION, TO THE EXTENT OF THE MINIMUM
REQUIRED INSURANCE AMOUNT, AND PROOF OF FUTURE RESPONSIBILITY.  11
U.L.A. 125 (1938). 

THE UNIFORM ACT AS SUCH WAS ADOPTED ONLY IN HAWAII, PENNSYLVANIA, AND
WASHINGTON; (FN14) ITS PROVISIONS REGARDING ACCIDENTS AND MINORS FOUND
LITTLE FAVOR.  YET DURING THE TWO DECADES FOLLOWING 1929 A LARGE
MAJORITY OF STATES ENACTED ONE OR ANOTHER FORM OF FINANCIAL
RESPONSIBILITY LAW.  UTAH'S FIRST SUCH STATUTE, ENACTED IN 1943, WAS
TYPICAL OF THE MOST COMMON ENACTMENT.  TWELVE OTHER STATES AND THE
DISTRICT OF COLUMBIA ADOPTED THIS SAME BASIC LAW; (FN15) AND, WITH
RELATIVELY MINOR MODIFICATIONS, IT WAS PARALLELED BY FIVE MORE (FN16)
IN ADDITION TO THE EARLIER CALIFORNIA AND NEW YORK LAWS.  THIS LAW
PROVIDED FOR SUSPENSION OF PRIVILEGES FOLLOWING CERTAIN CONVICTIONS AND
AFTER A JUDGMENT REMAINED UNPAID A SPECIFIED TIME.  RESTORATION IN
EITHER CASE WAS CONDITIONED ON PROOF OF FUTURE RESPONSIBILITY; IN THE
CASE OF A JUDGMENT, THE DEBT MUST BE DISCHARGED AS WELL.  THE UNPAID
JUDGMENT WAS REQUIRED TO BE FORWARDED ON THE INITIATIVE OF THE COURT OR
CLERK.  SIX STATES ADOPTED LAWS DIFFERING FROM UTAH'S PRINCIPALLY IN
THAT PROOF OF FUTURE RESPONSIBILITY, WITHOUT SATISFACTION OF THE DEBT,
WAS SUFFICIENT TO TERMINATE SUSPENSION.  (FN17)  IN ADDITION, MOST OF
THESE STATUTES PROVIDED THAT A DISCHARGE IN BANKRUPTCY SHOULD NOT
RELIEVE THE JUDGMENT DEBTOR FROM SUSPENSION.  (FN18) 

INDIANA AND MARYLAND IN 1931, LIKE CONNECTICUT AND IOWA BEFORE,
PLACED CONTROL OF SUSPENSION FOR UNPAID JUDGMENTS IN THE HANDS OF THE
CREDITOR BY REQUIRING THAT NOTICE BE FORWARDED TO THE ADMINISTRATOR
ONLY ON THE CREDITOR'S REQUEST.  IND. ACTS 1931, C. 179, SEC. 2; MD.
LAWS 1931, C. 498.  NEITHER SPECIFIED THE EFFECT OF A DISCHARGE. 
MARYLAND'S LAW WAS IN OTHER RESPECTS LIKE THAT OF UTAH; INDIANA'S,
WHICH REQUIRED ONLY PROOF OF FUTURE RESPONSIBILITY AND NOT DISCHARGE
FOR REINSTATEMENT, WAS REPLACED IN 1935 BY A STATUTE ON THE UTAH
MODEL.  IN MASSACHUSETTS SUSPENSION FOLLOWED WHEN THE REGISTRAR WAS
"SATISFIED BY SUCH EVIDENCE AS HE MAY REQUIRE" THAT THE JUDGMENT WAS
SIXTY DAYS UNPAID.  MASS. ACTS 1932, C. 304.  (FN19)  DELAWARE'S LAW
WAS SIMILAR IN THIS RESPECT.  DEL. LAWS 1931, C. 14.  NEW HAMPSHIRE'S
1937 LAW REQUIRED PROOF OF FUTURE RESPONSIBILITY FOLLOWING CERTAIN
CONVICTIONS AND CERTAIN ACCIDENTS BUT NOT AFTER UNPAID JUDGMENTS; IT
REQUIRED THOSE INVOLVED IN ACCIDENTS NOT ONLY TO PROVIDE PROOF FOR THE
FUTURE BUT TO DEPOSIT SECURITY TO COVER THE PAST ACCIDENT AS WELL. 
N.H. LAWS 1937, C. 161.  (FN20)  PROVISIONS REQUIRING SECURITY AFTER
ACCIDENTS, BUT WITHOUT THE NEED OF PROOF FOR THE FUTURE, WERE ADOPTED
BY A NUMBER OF OTHER STATES IN THE NEXT FEW YEARS.  (FN21) 

NEW YORK'S LAW, ONE SOURCE OF MOST OF THIS EARLY LEGISLATION,
UNDERWENT A GRADUAL EVOLUTION AFTER ITS ENACTMENT.  IN 1936 THE
LEGISLATURE PROVIDED THAT IF PROOF OF FUTURE RESPONSIBILITY WAS GIVEN
THE MAXIMUM PERIOD OF SUSPENSION SHOULD BE THREE YEARS.  (FN22)  THE
SAME YEAR THE STATUTE WAS FURTHER AMENDED TO ADD A NOVEL PROVISION.  IF
THE JUDGMENT CREDITOR CONSENTED, AND IF PROOF OF FUTURE RESPONSIBILITY
WAS GIVEN, A DEFAULTING JUDGMENT DEBTOR MIGHT CONTINUE TO ENJOY DRIVING
PRIVILEGES FOR SIX MONTHS, AND THEREAFTER SO LONG AS CONSENT WAS NOT
WITHDRAWN.  (FN23)  IN 1937 IT WAS MADE CLEAR THE REQUIREMENT OF
JUDGMENT PAYMENT DID NOT APPLY TO INSURED OWNERS OR DRIVERS.  (FN24)
IN 1939 REPORT OF THE UNPAID JUDGMENT WAS MADE DEPENDENT UPON REQUEST
BY THE CREDITOR.  (FN25)  FINALLY, IN 1941, NEW YORK ADOPTED THE NEW
HAMPSHIRE REQUIREMENT OF PROOF AND SECURITY FOR DAMAGES ARISING OUT OF
CERTAIN ACCIDENTS.  (FN26)  THE 1941 LAW ALSO PROVIDED, AS A NUMBER OF
STATES HAD DONE BEFORE, (FN27) FOR PAYMENT IN INSTALLMENTS, WITH
SUSPENSION UPON DEFAULT OF PAYMENTS. 

IT WAS AGAINST THIS BACKGROUND THAT THE UNIFORM ACT OF 1932 WAS
WITHDRAWN FOR FURTHER STUDY IN LIGHT OF THE STATES' EXTENSIVE
EXPERIENCE.  HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON
UNIFORM STATE LAWS (1943), P. 69.  THE RESULT OF THIS STUDY WAS AN
ENTIRELY REVISED MODEL ACT, INDORSED BY THE NATIONAL CONFERENCE, WHICH
NOW APPEARS AS CHAPTER 7 OF THE UNIFORM VEHICLE CODE OF 1956.  (FN28) 

THE NEW UNIFORM CODE REFLECTS MOST OF THE CHANGES WROUGHT IN NEW
YORK'S LAW FROM 1929 TO 1941.  IT REQUIRES PERSONS INVOLVED IN CERTAIN
ACCIDENTS TO DEPOSIT SECURITY TO COVER THE PAST IF THEY WERE NOT
INSURED.  IT REQUIRES PROOF OF FUTURE RESPONSIBILITY FROM THOSE
CONVICTED OF CERTAIN VIOLATIONS AND FROM THOSE OWING JUDGMENTS
UNSATISFIED AFTER THIRTY DAYS.  IN ADDITION, UNLESS INSURED, THE
JUDGMENT DEBTOR MUST SATISFY THE OBLIGATION, TO THE EXTENT OF THE
MINIMUM AMOUNTS OF FINANCIAL RESPONSIBILITY REQUIRED, BEFORE HIS
PRIVILEGES ARE RESTORED.  INSTALLMENT PAYMENTS, UNTIL DEFAULT, ARE
ALLOWED.  BANKRUPTCY IS NO RELEASE; UNPAID JUDGMENTS ARE TO BE REPORTED
ONLY ON REQUEST BY THE JUDGMENT CREDITOR; WITH THE CREDITOR'S CONSENT
THE DEBTOR MAY BE PERMITTED TO DRIVE FOR SIX MONTHS, IF HE SHOWS
FINANCIAL RESPONSIBILITY, AND LONGER UNTIL CONSENT IS REVOKED. 

THE MATERIAL PROVISIONS OF THE NEW UNIFORM CODE WITH RESPECT TO
FINANCIAL RESPONSIBILITY ARE CURRENTLY IN EFFECT IN TWENTY-ONE STATES,
INCLUDING UTAH, AND IN THE DISTRICT OF COLUMBIA.  (FN29) FIFTEEN OTHER
STATES HAVE ENACTED STATUTES SUBSTANTIALLY SIMILAR EXCEPT THAT UNPAID
JUDGMENTS ARE REPORTED BY THE COURT OR CLERK WITHOUT REQUEST BY THE
CREDITOR.  (FN30)  NINE MORE RETAIN STATUTES DIFFERING FROM THE LAST
FOREGOING PRINCIPALLY IN THE ABSENCE OF PROVISIONS FOR RESTORATION OF
PRIVILEGES WITHOUT PAYMENT ON THE CONSENT OF THE CREDITOR; THESE ARE IN
SUBSTANCE THE SAME AS THE COMMON STATUTE EARLIER IN FORCE IN UTAH,
EXCEPT THAT SECURITY IS USUALLY REQUIRED IN THE EVENT OF ACCIDENT. 
(FN31)  VERMONT'S STATUTE, REQUIRING ONLY PROOF AND NOT PAYMENT TO
REINSTATE PRIVILEGES AFTER JUDGMENT, DIFFERS IN OTHER PARTICULARS AS
WELL.  (FN32)  MAINE AND NEW HAMPSHIRE MAKE NO PROVISIONS FOR
JUDGMENTS, SUSPENDING ONLY AFTER ACCIDENTS AND VIOLATIONS.  (FN33)  IN
MASSACHUSETTS AND NEW YORK INSURANCE OR ITS EQUIVALENT IS COMPULSORY. 
(FN34) 

TWENTY YEARS AGO, THE COURT HAD BEFORE IT THE NEW YORK VARIANT OF
THIS LEGISLATION.  THIS PROVIDED FOR SUSPENSION OF LICENSE AND
REGISTRATION WHENEVER A JUDGMENT REMAINED UNPAID FOR FIFTEEN DAYS, AS
CERTIFIED BY THE COUNTY CLERK ON HIS INITIATIVE.  PROOF OF FUTURE
RESPONSIBILITY WAS REQUIRED FOR REINSTATEMENT; UNLESS THREE YEARS HAD
ELAPSED, SO WAS SATISFACTION OF THE JUDGMENT OTHER THAN BY DISCHARGE IN
BANKRUPTCY.  IN 1936 THE STATUTE WAS AMENDED TO TERMINATE THE
SUSPENSION WITH CREDITOR CONSENT ON PROOF OF RESPONSIBILITY, AND IN
1939 TO REQUIRE CERTIFICATION OF THE JUDGMENT ONLY ON REQUEST BY THE
CREDITOR OR HIS ATTORNEY.  THE COURT HELD THAT THIS STATUTE, AS IT
STOOD BEFORE 1936, WAS AN APPROPRIATE MEASURE TO PROMOTE HIGHWAY SAFETY
AND DID NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  BECAUSE THE STATUTE WAS NOT DESIGNED TO AID COLLECTION OF
DEBTS BUT TO ENFORCE A POLICY AGAINST IRRESPONSIBLE DRIVING, AND
BECAUSE THIS POLICY WOULD BE FRUSTRATED IF NEGLIGENT DRIVERS COULD
AVOID THE STATUTE BY "THE SIMPLE EXPEDIENT OF VOLUNTARY BANKRUPTCY," NO
CONFLICT WITH THE BANKRUPTCY ACT WAS FOUND.  THE COURT EXPRESSLY LEFT
UNANSWERED THE CLAIM THAT THE AMENDMENTS GIVING THE CREDITOR CONTROL
OVER INITIATION AND DURATION OF THE SUSPENSION WERE CONTRARY TO THE
BANKRUPTCY ACT.  REITZ V. MEALEY, 314 U.S. 33 (1941). 

THE UTAH LAW HERE CHALLENGED IS IN SUBSTANCE THAT WHICH THE COURT DID
NOT HAVE TO PASS ON IN REITZ V. MEALEY, WITH TWO EXCEPTIONS.  NOT ONLY
IS THE CREDITOR PERMITTED TO INITIATE, LIFT, AND RESTORE SUSPENSION AS
UNDER THE NEW YORK AMENDMENTS; HE IS ALSO GIVEN POWER TO RESTORE
SUSPENSION FOR DEFAULT ON PAYMENT OF INSTALLENTS, AND, IF THE JUDGMENT
IS NOT SATISFIED, THE SUSPENSION IS PERMANENT RATHER THAN LIMITED TO
THREE YEARS.  APPELLANT URGES THAT THE UTAH CREDITOR'S ADDED CONTROL
OVER THE LICENSE AND REGISTRATION PROCEDURES DEMONSTRATES THAT THE
STATE IS ACTING AS A COLLECTING AGENT FOR THE CREDITOR RATHER THAN
FURTHERING AN INTEREST IN HIGHWAY SAFETY, AND THAT TO MAKE SUSPENSION
PERPETUAL RATHER THAN FOR THREE YEARS ONLY RENDERS THE COLLECTION
PRESSURE MORE EFFECTIVE.  DO THESE DIFFERENCES MAKE A CONSTITUTIONAL
DIFFERENCE, IN LIGHT OF THE CONSIDERATIONS THAT UNDERLAY THE DECISION
IN THE REITZ CASE? 

DISCHARGE IN BANKRUPTCY SHALL RELEASE A BANKRUPT FROM ALL OF HIS
PROVABLE DEBTS," WITH EXCEPTIONS NOT HERE MATERIAL.  SEE ALSO 11 U.S.C.
SEC. 1 (15).  A DISCHARGE RELIEVES THE BANKRUPT "FROM LEGAL LIABILITY
TO PAY A DEBT THAT WAS PROVABLE," ZAVELO V. REEVES, 227 U.S. 625, 629
(1913); IT IS A VALID DEFENSE IN AN ACTION BROUGHT IN A STATE COURT TO
RECOVER THE DEBT.  A STATE CANNOT DEAL WITH THE DEBTOR-CREDITOR
RELATIONSHIP AS SUCH AND CIRCUMVENT THE AIM OF THE BANKRUPTCY ACT IN
LIFTING THE BURDEN OF DEBT FROM A WORTHY DEBTOR AND AFFORDING HIM A NEW
START.  THE LIMITATIONS IMPOSED UPON THE STATES BY THE ACT RAISE
CONSTITUTIONAL QUESTIONS UNDER THE SUPREMACY CLAUSE, ART. VI.  THUS, A
DISCHARGE DOES NOT FREE THE BANKRUPT FROM ALL TRACES OF THE DEBT, AS
THOUGH IT HAD NEVER BEEN INCURRED.  THIS COURT HAS HELD THAT A MORAL
OBLIGATION TO PAY THE DEBT SURVIVES DISCHARGE AND IS SUFFICIENT TO
PERMIT A STATE TO GRANT RECOVERY TO THE CREDITOR ON THE BASIS OF A
PROMISE SUBSEQUENT TO DISCHARGE, EVEN THOUGH THE PROMISE IS NOT
SUPPORTED BY NEW CONSIDERATION.  ZAVELO V. REEVES, SUPRA.  THE THEORY,
THE COURT DECLARED, IS THAT "THE DISCHARGE DESTROYS THE REMEDY BUT NOT
THE INDEBTEDNESS," 227 U.S., AT 629.  (FN35)  AND IN SPALDING V. NEW
YORK EX REL. BACKUS, 4 HOW.  21 (1846), UNDER AN EARLIER BANKRUPTCY
LAW, (FN36) THE COURT HELD THAT A DISCHARGE DID NOT PREVENT THE STATE
FROM COLLECTING A FINE FOR CONTEMPT IN VIOLATION OF AN INJUNCTION
ISSUED TO AID IN THE EXECUTION OF A JUDGMENT DEBT, ALTHOUGH THE FINE
WAS TURNED OVER TO THE CREDITOR.  STATES ARE NOT FREE TO IMPOSE
WHATEVER SANCTIONS THEY WISH, OTHER THAN AN ACTION OF DEBT OR
ASSUMPSIT, TO ENFORCE COLLECTION OF A DISCHARGED DEBT.  BUT THE LESSON
ZAVELO AND SPALDING TEACH IS THAT THE BANKRUPTCY ACT DOES NOT FORBID A
STATE TO ATTACH ANY CONSEQUENCE WHATSOEVER TO A DEBT WHICH HAS BEEN
DISCHARGED.  (FN37) 

THE UTAH SAFETY RESPONSIBILITY ACT LEAVES THE BANKRUPT TO SOME EXTENT
BURDENED BY THE DISCHARGED DEBT.  CERTAINLY SOME INROAD IS MADE ON THE
CONSEQUENCES OF BANKRUPTCY IF THE CREDITOR CAN EXERT PRESSURE TO RECOUP
A DISCHARGED DEBT, OR PART OF IT, THROUGH THE LEVERAGE OF THE STATE'S
LICENSING AND REGISTRATION POWER.  BUT THE EXERCISE OF THIS POWER IS
DEEMED VITAL TO THE STATE'S WELL-BEING, AND, FROM THE POINT OF VIEW OF
ITS INTERESTS, IS WHOLLY UNRELATED TO THE CONSIDERATIONS WHICH
PROPELLED CONGRESS TO ENACT A NATIONAL BANKRUPTCY LAW.  THERE ARE HERE
OVERLAPPING INTERESTS WHICH CANNOT BE UNCRITICALLY RESOLVED BY
EXCLUSIVE REGARD TO THE MONEY CONSEQUENCES OF ENFORCING A WIDELY
ADOPTED MEASURE FOR SAFEGUARDING LIFE AND SAFETY. 

WHEN REITZ V. MEALEY WAS IN THE DISTRICT COURT, 34 F. SUPP. 532
(N.D.N.Y. 1940), JUDGE LEARNED HAND UPHELD THE STATUTE, AS DID THIS
COURT, WITHOUT DECIDING THE VALIDITY OF THE CREDITOR-CONTROL
AMENDMENTS; BUT IN PASSING HE DEALT WITH THE REALITIES OF THE SITUATION
AND DEMONSTRATED THE THIN DIFFERENCE THEY MADE.  AS FOR THE 1936
AMENDMENT, "THE ORIGINAL STATUTE IN FACT GAVE THE CREDITOR POWER AT ANY
TIME TO RESTORE THE LICENSE BY A COMPLETE SATISFACTION OF THE JUDGMENT;
AND THE AMENDMENT MERELY ADDED TO THIS BY ENABLING HIM TO WITHDRAW HIS
CONSENT, ONCE GIVEN, AFTER SIX MONTHS."  THE 1939 AMENDMENT: 

"MERELY RELIEVED THE CLERK OF AN IRKSOME DUTY.  HE HAD BEEN OBLIGED
TO FIND OUT WHENEVER A JUDGMENT HAD REMAINED UNPAID FOR FIFTEEN DAYS,
WHETHER IT WAS FOR DAMAGES DUE TO NEGLIGENT DRIVING.  INSTEAD OF THIS
THE AMENDMENT SET UP AN AUTOMATIC SYSTEM DEPENDING UPON THE CREDITOR'S
INTEREST IN STARTING THE CLERK INTO ACTION.  THIS DISTINCTION IS,
HOWEVER, MORE APPARENT THAN REAL BECAUSE UNDER THE SECTION AS IT STOOD
BEFORE 1939, THE CREDITOR HAD THE SAME INCENTIVE AND HE WAS AS LIKELY
AS THEREAFTER TO ADVISE THE CLERK OF THE JUDGMENT  ...  .  THE CHANCE
THAT THE CLERK WOULD HAVE ACTED WITHOUT BEING PRODDED BY THE CREDITOR
MUST HAVE BEEN VERY REMOTE."  34 F. SUPP., AT 535. 

THIS COURT WAS OF COURSE AWARE OF THE PRACTICAL PRESSURES OF THE NEW
YORK STATUTE AS A DEVICE TO COLLECT DEBTS DISCHARGED IN BANKRUPTCY; THE
ARGUMENT WAS PRESSED UPON IT IN THE DISSENT.  YET THE STATUTE WAS
UPHELD.  WHY?  BECAUSE THE "POLICE POWER" OF A STATE, ESPECIALLY WHEN
EXERTED FOR THE PROTECTION OF LIFE AND LIMB, IS AS PERVASIVE AS ANY OF
THE RESERVED POWERS OF THE STATES AND SHOULD BE RESPECTED UNLESS THERE
IS A CLEAR COLLISION WITH A NATIONAL LAW WHICH HAS THE RIGHT OF WAY
UNDER THE SUPREMACY CLAUSE OF ARTICLE VI.  THE FACT THAT THE
CONSEQUENCES OF THE NEW YORK SAFETY ACT MAY IN FACT HAVE SUBJECTED A
DEBTOR TO THE PAYMENT OF MONEY OF WHICH AS AN OBLIGATION IN THE
CREDITOR-DEBTOR RELATION HE WAS QUIT DID NOT LEAD THIS COURT TO HOLD
THAT THE STATE HAD INTRUDED INTO THE BANKRUPTCY DOMAIN OR SUBVERTED THE
PURPOSE OF THE BANKRUPTCY LAW.  WHY?  AT THE HEART OF THE MATTER ARE
THE COMPLICATED DEMANDS OF OUR FEDERALISM. 

ARE THE DIFFERENCES BETWEEN THE UTAH STATUTE AND THAT OF NEW YORK SO
SIGNIFICANT AS TO MAKE A CONSTITUTIONALLY DECISIVE DIFFERENCE?  A STATE
MAY PROPERLY DECIDE, AS FORTY-FIVE HAVE DONE, THAT THE PROSPECT OF A
JUDGMENT THAT MUST BE PAID IN ORDER TO REGAIN DRIVING PRIVILEGES SERVES
AS A SUBSTANTIAL DETERRENT TO UNSAFE DRIVING.  WE HELD IN REITZ THAT IT
MIGHT IMPOSE THIS REQUIREMENT DESPITE A DISCHARGE, IN ORDER NOT TO
EXEMPT SOME DRIVERS FROM APPROPRIATE PROTECTION OF PUBLIC SAFETY BY
EASY REFUSE TO BANKRUPTCY.  (FN38)  TO MAKE SUSPENSION OF PRIVILEGES
DEPENDENT UPON THE CREDITOR'S REQUEST, AS TWENTY-ONE HAVE DONE, AND AS
CONGRESS HAS DONE FOR THE DISTRICT OF COLUMBIA, IS NOTHING MORE THAN TO
MAKE EXPLICIT WHAT HAPPENS IN THE REAL WORLD REGARDLESS OF THE
STATUTORY LANGUAGE.  EVEN IF THE CREDITOR-REQUEST PROVISION MAKES
SUSPENSION MORE LIKELY, WE SEE NO REASON WHY A STATE MAY NOT SO PROVIDE
IN ORDER THAT THE DETERRENT BE MADE MORE EFFECTIVE BY AUTHORIZING THE
PARTY MOST LIKELY TO BE INTERESTED IN THE ENFORCEMENT OF THE SANCTION
TO SET IT IN MOTION.  NOR DO WE THINK IN EXCESS OF THEIR POWER THE
ACTION OF THIRTY-FIVE STATES THAT HAVE ATTEMPTED, AS CONGRESS HAS DONE,
TO AUTHORIZE THE CREDITOR TO LIFT AND RESTORE THE SUSPENSION, OR THE
FORTY-THREE THAT, AGAIN AS CONGRESS, HAVE PROVIDED THAT IN THE ABSENCE
OF CREDITOR CONSENT THE SUSPENSION SHALL LAST FOREVER UNLESS THE
JUDGMENT IS EXTINGUISHED.  TO WHATEVER EXTENT THESE PROVISIONS MAKE IT
MORE PROBABLE THAT THE DEBT WILL BE PAID DESPITE THE DISCHARGE, EACH NO
LESS REFLECTS THE STATE'S IMPORTANT DETERRENT INTEREST.  CONGRESS HAD
NO THOUGHT OF AMENDING THE BANKRUPTCY ACT WHEN IT ADOPTED THIS LAW FOR
THE DISTRICT OF COLUMBIA; WE DO NOT BELIEVE UTAH'S IDENTICAL STATUTE
CONFLICTS WITH IT EITHER.    UTAH IS NOT USING ITS POLICE POWER AS A
DEVIOUS COLLECTING AGENCY UNDER THE PRESSURE OF ORGANIZED CREDITORS. 
VICTIMS OF CARELESS CAR DRIVERS ARE A WHOLLY DIFFUSED GROUP OF SHIFTING
AND UNCERTAIN COMPOSITION, NOT EVEN REMOTELY UNITED BY A COMMON
FINANCIAL INTEREST.  THE SAFETY RESPONSIBILITY ACT IS NOT AN ACT FOR
THE RELIEF OF MULCTED CREDITORS.  IT IS NOT DIRECTED TO BANKRUPTS AS
SUCH.  THOUGH IN A PARTICULAR CASE A DISCHARGED BANKRUPT WHO WANTS TO
HAVE HIS RIGHTFULLY SUSPENDED LICENSE AND REGISTRATION RESTORED MAY
HAVE TO PAY THE AMOUNT OF A DISCHARGED DEBT, OR PART OF IT, THE BEARING
OF THE STATUTE ON THE PURPOSES SERVED BY BANKRUPTCY LEGISLATION IS
ESSENTIALLY TANGENTIAL. 

THERE ARE NO APOTHECARY'S SCALES BY WHICH THE DIFFERENCES BETWEEN THE
UTAH AND NEW YORK STATUTES CAN BE CONSTITUTIONALLY WEIGHED.  THE MATTER
RESTS IN JUDGMENT.  THAT ORGANON OF ADJUDICATION LEADS US TO CONCLUDE
THAT THE DIFFERENCES ARE TOO INSUBSTANTIAL, TOO TENUOUS AS A MATTER OF
PRACTICAL REALITY, TO REACH CONSTITUTIONAL SOLIDITY.  AFFIRMED. 

FN1  THIS COURT HAS A NUMBER OF TIMES CONSIDERED ALLEGED CONFLICTS
BETWEEN THE BANKRUPTCY ACT AND STATE INSOLVENCY LAWS, OR OTHER LAWS
DESIGNED TO AFFECT THE DEBTOR-CREDITOR RELATIONSHIP AS SUCH.  E.G.,
POBRESLO V. JOSEPH M. BOYD CO., 287 U.S. 518 (1933); INTERNATIONAL SHOE
CO. V. PINKUS, 278 U.S. 261 (1929).  SEE WILLISTON, THE EFFECT OF A
NATIONAL BANKRUPTCY LAW UPON STATE LAWS, 22 HARV. L. REV. 547 (1909). 
IN ADDITION, SEVERAL COURTS HAVE BEEN CONFRONTED WITH POSSIBLE
CONFLICTS BETWEEN THE BANKRUPTCY ACT AND OTHER LAWS.  E.G., SPALDING V.
NEW YORK EX REL. BACKUS, 4 HOW.  21 (1846)(CONTEMPT FOR DEFYING
INJUNCTION IN AID OF DEBT LATER DISCHARGED); IN RE HICKS, 133 F. 739
(N.D.N.Y. 1905) (FIREMAN SUSPENDED FOR NONPAYMENT OF DISCHARGED DEBT);
PUBLIC FINANCE CORP. V. LONDEREE, 200 VA. 607, 106 S.E.2D 760
(1959)(FINANCIAL STATEMENT FROM BORROWER TO LENDER INADMISSIBLE IN
BANKRUPTCY PROCEEDING).  BUT THERE ARE RELATIVELY FEW REPORTED CASES IN
THIS COURT OR ANY OTHER IN WHICH SUCH A CONFLICT WAS ASSERTED WITH
STATE LAWS DESIGNED TO PROTECT HEALTH, SAFETY, OR THE PUBLIC PEACE, AND
ALL THOSE FOUND DEAL WITH AUTOMOBILE FINANCIAL SECURITY LAWS.  REITZ V.
MEALEY, 314 U.S. 33 (1941); IN RE LOCKER, 30 F. SUPP. 642 (S.D.N.Y.
1939); MUNZ V. HARNETT, 6 F. SUPP. 158 (S.D.N.Y. 1933); IN RE PERKINS,
3 F. SUPP. 697 (N.D.N.Y. 1933); DOYLE V. KAHL, 242 IOWA 153, 46 N.W.2D
52 (1951); ELLIS V. RUDY, 171 MD. 280, 189 A. 281 (1937); DEVRIES V.
SECRETARY OF STATE, 329 MICH. 68, 44 N.W.2D 872 (1950); SMITH V. HAYES,
133 N.E.2D 443 (OHIO C.P. 1955). 

FN2  UTAH LAWS 1951, C. 71, AS AMENDED, UTAH CODE ANN., 1953, TIT.
41, C. 12. 

FN3  UTAH CODE ANN., 1953, TIT. 41, C. 1, ART. 3. 

FN4  ID., 41-6-158. 

FN5  ID., TIT. 41, C. 6, ART. 16. 

FN6  ID., TIT. 41, C. 2. 

FN7  ID., TIT. 41, C. 6, ARTS. 1-15. 

FN8  ID., 41-12-8. 

FN9  SUSTAINED IN IN RE CARDINAL, 170 CAL. 519, 150 P. 348 (1915). 

FN10  E.G., N.J. LAWS 1916, C. 136; N.Y. LAWS 1922, C. 612.  SEE
PACKARD V. BANTON, 264 U.S. 140 (1924); WILLIS V. CITY OF FORT SMITH,
121 ARK. 606, 611, 182 S.W. 275 (1916); OPINION OF THE JUSTICES, 81
N.H. 566, 568, 129 A. 117, 118-119 (1925), AND CASES CITED; ANNOT., 22
A.L.R. 230 (1923). 

FN11  NORTH DAKOTA (LAWS 1929, C. 163) ADOPTED A SIMILAR LAW. 

FN12  THIS ACT WAS REPEALED BY CONN. ACTS 1931, C. 82, SEC. 294A, AND
THE 1925 PROVISION FOR PROOF FOLLOWING CERTAIN ACCIDENTS WAS NOT RE
ENACTED.  ID., SEC. 295A. 

FN13  SOUTH DAKOTA (LAWS 1933, C. 144) ADOPTED A SIMILAR LAW. 

FN14  HAWAII LAWS 1933, C. 166; PA. LAWS 1933, NO. 110; WASH. LAWS
1939, C. 158. 

FN15 ALABAMA (LAWS 1947, NO. 276); DISTRICT OF COLUMBIA (49 STAT. 167
(1935)); IDAHO (LAWS 1939, C. 117); ILLINOIS (LAWS 1938 (1ST SP.
SESS.), P. 51); INDIANA (ACTS 1935, C. 113); KENTUCKY (ACTS 1936, C.
70); MICHIGAN (ACTS 1933, NO. 203); MISSOURI (LAWS 1945, P. 1207);
MONTANA (LAWS 1937, C. 129); NEBRASKA (LAWS 1931, C. 108); NORTH DAKOTA
(LAWS 1939, C. 167); OREGON (LAWS 1935, C. 434); UTAH (LAWS 1943, C.
68); WEST VIRGINIA (ACTS 1935, C. 61).  THE ULTIMATE SOURCE OF THESE
LAWS SEEMS TO HAVE BEEN A BILL SPONSORED BY THE AMERICAN AUTOMOBILE
ASSOCIATION AS EARLY AS 1928.  SEE ASSOCIATION OF CASUALTY & SURETY
EXECUTIVES, COMMENTS ON "REPORT BY THE COMMITTEE TO STUDY COMPENSATION
FOR AUTOMOBILE ACCIDENTS TO THE COLUMBIA UNIVERSITY COUNCIL FOR
RESEARCH IN THE SOCIAL SCIENCES" (1932), PP. 14-15. 

FN16  ARIZONA (LAWS 1935, C. 45) LIMITED SUSPENSION TO A MAXIMUM OF
FIVE YEARS, AND KANSAS (LAWS 1939, C. 86) TO THREE.  VIRGINIA (ACTS
1932, C. 272) REQUIRED SATISFACTION OF THE DEBT BEFORE REINSTATEMENT,
BUT AFTER ONE YEAR PROOF ALONE WAS SUFFICIENT.  VIRGINIA DID NOT
PROVIDE FOR SUSPENSION AND PROOF FOLLOWING VIOLATIONS.  NEW JERSEY
(LAWS 1929, C. 116, AS AMENDED, LAWS 1931, C. 169) AND NEW MEXICO (LAWS
1947, C. 201) REQUIRED PROOF AFTER CERTAIN ACCIDENTS AS WELL.  ARIZONA
DID NOT REQUIRE THE CLERK TO GIVE NOTICE OF UNPAID JUDGMENTS;
SUSPENSION WAS ORDAINED "ON REPORT" OF FAILURE TO PAY. 

FN17  GEORGIA (LAWS 1945, NO. 332), NORTH CAROLINA (LAWS 1931, C.
116), AND APPARENTLY COLORADO (LAWS 1935, C. 163.  THE SECTION TITLE
READS "AND," BUT THE TEXT "OR"), RESTORED PRIVILEGES ON EITHER PROOF OR
SATISFACTION RATHER THAN BOTH; MINNESOTA (LAWS 1933, C. 351), OHIO
(LAWS 1935, P. 218), AND WISCONSIN (LAWS 1941, C. 206) ON PROOF WITHOUT
MORE.  IN OHIO AND WISCONSIN, SUSPENSION TERMINATED AUTOMATICALLY AFTER
ONE YEAR.  OHIO AFTER 1943 (P. 658) REQUIRED SATISFACTION BUT NOT PROOF
AND EXTENDED SUSPENSION TO FIVE YEARS.  GEORGIA AND NORTH CAROLINA DID
NOT REQUIRE PROOF AFTER VIOLATIONS. 

FN18  ALABAMA, ARIZONA, CALIFORNIA (STAT. 1937, C. 840), COLORADO,
DISTRICT OF COLUMBIA, IDAHO, ILLINOIS, INDIANA, KANSAS, KENTUCKY,
MICHIGAN, MISSOURI, MONTANA, NEW JERSEY (LAWS 1941, C. 296), NEW
MEXICO, NEW YORK, OREGON, UTAH, AND WEST VIRGINIA. 

FN19  THIS LAW EXTENDED ONLY TO PROPERTY JUDGMENTS, AND ONLY
SATISFACTION OF THE DEBT, NOT PROOF OF FUTURE ABILITY TO RESPOND, WAS
REQUIRED. 

FN20  MAINE (LAWS 1941, C. 255), MICHIGAN (ACTS 1943, NO. 248), AND
NEW YORK (LAWS 1941, C. 872), ENACTED COMPARABLE ACCIDENT PROVISIONS. 
MAINE AT THE SAME TIME REPEALED ITS REQUIREMENTS PERTAINING TO UNPAID
JUDGMENTS. 

FN21  COLORADO (LAWS 1947, C. 124); FLORIDA (LAWS 1947, C. 23626);
ILLINOIS (LAWS 1945, P. 1078); INDIANA (ACTS 1943, C. 175); MARYLAND
(LAWS 1945, C. 456); MINNESOTA (LAWS 1945, C. 285); NEVADA (LAWS 1949,
C. 127); TENNESSEE (ACTS 1949, C. 75); WISCONSIN (LAWS 1945, C. 375). 

FN22  N.Y. LAWS 1936, C. 293. 

FN23  N.Y. LAWS 1936, C. 448. 

FN24  N.Y. LAWS 1937, C. 463. 

FN25  N.Y. LAWS 1939, C. 618. 

FN26  N.Y. LAWS 1941, C. 872. 

FN27  ARIZONA, CALIFORNIA (STAT. 1935, C. 591; SEE ID., P. 159),
COLORADO, DISTRICT OF COLUMBIA, IDAHO, ILLINOIS, INDIANA (1935),
KANSAS, KENTUCKY, MARYLAND, MICHIGAN, MONTANA, NEBRASKA, NEW JERSEY,
NORTH DAKOTA (1939), OHIO, OREGON, AND WEST VIRGINIA. 

FN28  NATIONAL COMMITTEE ON UNIFORM TRAFFIC LAWS AND ORDINANCES,
UNIFORM VEHICLE CODE (1956), SECS. 7-101 TO 7-505; SEE HANDBOOK OF THE
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM LAWS (1946), P. 131. 

ALABAMA (LAWS 1951, NO. 704, AS AMENDED, ALA. CODE, 1940, AS
RECOMPILED 1958, TIT. 36, SECS. 74(42)-74(83).  THE 1959 AMENDMENT
(LAWS, NO. 72) LIMITED SUSPENSION TO A MAXIMUM OF THREE YEARS);
ARKANSAS (ACTS 1953, NO. 347, ARK. STAT., 1947 (1957 REPLACEMENT), TIT.
75, C. 14); DISTRICT OF COLUMBIA (68 STAT. 120 (1954), AS AMENDED 72
STAT. 957 (1958), D.C. CODE, 1961, TIT. 40, C. 4); FLORIDA (LAWS 1957,
C. 57-147, FLA. STAT., 1959, C. 324.  NO SPECIFIC PROVISION IS MADE
REGARDING BANKRUPTCY); GEORGIA (LAWS 1956, NO. 362, GA. CODE ANN.,
1958, C. 92A-6.  GEORGIA REQUIRES ONLY PAYMENT AND NOT PROOF FOR
RESTORATION AFTER JUDGMENT AND REQUIRES NO PROOF TO REINSTATE WITH
CREDITOR CONSENT.  THERE IS NO PROVISION REGARDING BANKRUPTCY.  FROM
1951 (LAWS, NO. 386) TO 1956, GEORGIA'S FINANCIAL-RESPONSIBILITY
PROVISION REQUIRED SECURITY AFTER ACCIDENTS AND PROOF AFTER CERTAIN
VIOLATIONS.); HAWAII (LAWS 1949, C. 393, HAWAII REV. LAWS, 1955, C.
160, PART III); KANSAS (LAWS 1957, C. 68, KAN. GEN. STAT., 1949 (SUPP.
1959), C. 8, ART. 7); LOUISIANA (ACTS 1952, NO. 52, LA. REV. STAT.,
1950 (1960 POCKET PART), TIT. 32, C. 5); MARYLAND (LAWS 1931, C. 498,
AS AMENDED, MD. ANN. CODE, 1957, ART. 66 1/2, SECS. 116-149.  NO
PROVISION IS MADE FOR CREDITOR CONSENT TO RESTORATION BEFORE PAYMENT.);
MISSISSIPPI (LAWS 1952, C. 359, MISS.  CODE ANN., 1942, AS RECOMPILED
1956, TIT. 30, SECS. 8285-01 TO 8285-41); MONTANA (LAWS 1951, C. 204,
MONT. REV. CODE, 1947 (1954 REPLACEMENT), TIT. 53, C. 4); NEVADA (LAWS
1957, C. 384, NEV. REV. STAT., 1957, C. 485); NEW MEXICO (LAWS 1955, C.
182, N.M. STAT., 1953 (1960 REPLACEMENT), TIT. 64, ART. 24); NORTH
CAROLINA (LAWS 1953, C. 1300, N.C. GEN. STAT., 1959 SUPP., C. 20, ART.
9A.  FROM LAWS 1947, C. 1006, TO 1953, NORTH CAROLINA'S LAW WAS
SUBSTANTIALLY THE SAME AS NOW EXCEPT THAT REPORT OF UNPAID JUDGMENTS
WAS MANDATORY, AND THAT PROOF RATHER THAN SECURITY WAS REQUIRED IN
ACCIDENT CASES, BUT ONLY AS TO UNLICENSED OPERATORS.); OHIO (LAWS 1951,
P. 563, AS AMENDED, PAGE'S OHIO REV. CODE ANN., 1954 AND 1961 SUPP., C.
4509); OKLAHOMA (LAWS 1949, P. 347, OKLA.  STAT., 1951, TIT. 47, C.
14); OREGON (LAWS 1955, C. 429, AS AMENDED, ORE.  REV.  STAT., 1953
(1961 REPLACEMENT PART), C. 486.  PROOF AS WELL AS SECURITY IS REQUIRED
AFTER ACCIDENT; THE MAXIMUM SUSPENSION IS FIVE YEARS.); RHODE ISLAND
(LAWS 1952, C. 3002, R.I. GEN. LAWS, 1956, TIT. 31, C. 32); SOUTH
DAKOTA (LAWS 1957, C. 212, S.D. CODE, 1939 (SUPP. 1960), C. 44.03A.  IN
1953, C. 251, SOUTH DAKOTA HAD SUSPENDED LICENSES ON NOTICE FROM THE
CREDITOR UNTIL THE JUDGMENT WAS PAID, OR THE CREDITOR'S CONSENT WAS
GIVEN.); TEXAS (LAWS 1951, C. 498, VERNON'S TEX. CIV. STAT. ANN., 1960,
ART. 6701H.); UTAH (LAWS 1951, C. 71, AS AMENDED, UTAH CODE ANN., 1953,
41-12-1 TO 41-12-41.  UTAH HAS ONLY RECENTLY PROVIDED FOR PROOF AFTER
CONVICTIONS, LAWS 1961, C. 95.); WEST VIRGINIA (ACTS 1951, C. 130,
W.VA.  CODE ANN., 1955, C. 17D). 

FN30  ALASKA (LAWS 1959, C. 163, ALASKA COMP. LAWS ANN., 1949 (SUPP.
1959) TIT. 50, C. 8.  BOTH A DEPOSIT AND FUTURE PROOF ARE REQUIRED IN
SOME ACCIDENT CASES.); ARIZONA (LAWS 1951, C. 122, ARIZ. REV. STAT.
ANN., 1956, TIT. 28, C. 7); DELAWARE (LAWS 1951, C. 359, DEL. CODE
ANN., 1953, TIT. 21, C. 29); IDAHO (LAWS 1947, C. 256, IDAHO CODE, 1947
(1957 REPLACEMENT), TIT. 49, C. 15); IOWA (LAWS 1947, C. 172, IOWA
CODE, 1958, C. 321A); KENTUCKY (ACTS 1946, C. 118, KY. REV. STAT.,
1960, C. 187); MINNESOTA (LAWS 1945, C. 285, AS AMENDED, MINN. STAT.,
1953, C. 170); MISSOURI (LAWS 1953, P. 569, VERNON'S ANN. MO.  STAT.,
1952 (SUPP. 1960), C. 303); NEBRASKA (LAWS 1949, C. 178, NEB. REV.
STAT., 1943 (1960 REISSUE), C. 60, ART. 5); NORTH DAKOTA (LAWS 1947, C.
256, AS AMENDED, N.D. CENTURY CODE, 1960, C. 39-16); PENNSYLVANIA (LAWS
1945, NO. 433, SUPERSEDED BY LAWS 1959, NO. 32, ART. XIV, PURDON'S PA.
STAT. ANN., 1960, TIT. 75, C. 1, ART. XIV); SOUTH CAROLINA (ACTS 1952,
NO. 723, S.C. CODE, 1952 (SUPP. 1960), TIT. 46, C. 3.1); VIRGINIA (ACTS
1944, C. 384, IN ADDITION REQUIRED BOTH PROOF AND SECURITY AFTER
ACCIDENTS, AND PROOF AFTER SUSPENSIONS AUTHORIZED "ON ANY REASONABLE
GROUND" AND AFTER RELEASE FROM INSTITUTIONS FOR INSANITY, DRUG
ADDICTION, ETC.  THESE PROVISIONS WERE DROPPED BEFORE THE REVISION OF
1958, C. 541, NOW VA. CODE, 1950 (1958 REPLACEMENT), TIT. 46.1, C. 6);
WISCONSIN (LAWS 1957, C. 260, P. 302, WIS. STAT. ANN., 1958, C. 344);
WYOMING (LAWS 1947, C. 160, AS AMENDED, WYO. STAT., 1957, TIT. 31, C.
6). 

FN31  CALIFORNIA (CAL. VEHICLE CODE, 1960, DIV. 7.  NO PROOF IS
REQUIRED AFTER CONVICTIONS.); COLORADO (COLO. REV. STAT., 1953, C. 13,
ART. 7); CONNECTICUT (ACTS 1951, NO. 179, AS AMENDED, CONN. GEN. STAT.,
1958, TIT. 14, C. 246, PART VI.  PRIVILEGES ARE SUSPENDED ON ENTRY OF
ANY JUDGMENT, UNTIL SATISFIED; AFTER VIOLATIONS, UNTIL PROOF OF FUTURE
RESPONSIBILITY; AND AFTER ACCIDENTS, UNLESS SECURITY IS DEPOSITED. 
THERE IS NO PROVISION FOR NOTIFICATION BY COURT OR BY CREDITOR.);
ILLINOIS (SMITH-HURD'S ILL. ANN.  STAT., 1958, C. 95 1/2, C. 7);
INDIANA (BURNS' IND. ANN. STAT., 1952, TIT. 47, C. 10.  PROOF MAY BE
REQUIRED AFTER ACCIDENTS IN ADDITION TO SECURITY.); MICHIGAN (MICH.
STAT. ANN., 1960, SECS. 9.2201 TO 9.2232.  BOTH DEPOSIT AND PROOF ARE
REQUIRED AFTER SUSPENSION FOR ACCIDENTS.); NEW JERSEY (N.J. STAT. ANN.,
1961, TIT. 39, C. 6); TENNESSEE (ACTS 1959, C. 277, TENN. CODE ANN.,
1955 (SUPP. 1961), TIT. 59, C. 12.  NO PROVISION IS MADE FOR REPORT OF
JUDGMENTS BY EITHER COURT OR CREDITOR.  TENNESSEE'S FIRST
RESPONSIBILITY LAW, ACTS 1949, C. 75, REQUIRED SECURITY AFTER
ACCIDENTS; ACTS 1951, C. 206, ADDED SUSPENSION UNTIL OVERDUE JUDGMENTS
WERE DISCHARGED OTHER THAN IN BANKRUPTCY.); WASHINGTON (WASH. REV.
CODE, 1951 & 1959 SUPP., C. 46.24). 

FN32  VT. STAT. ANN., 1959, TIT. 23, SECS. 801-809.  PROOF IS
REQUIRED AFTER CERTAIN VIOLATIONS OR UNSATISFIED JUDGMENTS BASED ON
VIOLATIONS, AND AFTER CERTAIN ACCIDENTS.  WHEN AN ACCIDENT IS CAUSED BY
A VIOLATION, A DEPOSIT IS ALSO REQUIRED.  NO PROVISION IS MADE FOR
REPORTING JUDGMENTS.    FN33  MAINE (ME. REV. STAT., 1954 AND SUPP.
1959, C. 22, SECS. 75-82.  SUSPENSION IS AUTHORIZED AFTER VIOLATIONS
AND ACCIDENTS, OR ON "ANY REASONABLE GROUND"; PROOF IS REQUIRED IN ALL
SUCH CASES, AND SECURITY ALSO IN ACCIDENTS.); NEW HAMPSHIRE (N.H. REV.
STAT. ANN., 1955, C. 268.  PROOF IS REQUIRED AFTER VIOLATIONS, PROOF
AND SECURITY AFTER ACCIDENTS.). 

FN34  MASSACHUSETTS (MASS. GEN. LAWS ANN., 1958, C. 90, SECS. 34A
34J.  SUSPENSION IS ALSO ORDAINED WHEN THE REGISTRAR IS "SATISFIED BY
SUCH EVIDENCE AS HE MAY REQUIRE" THAT A PROPERTY JUDGMENT IS UNPAID. 
ID., SEC. 22A.); NEW YORK (N.Y. VEHICLE & TRAFFIC LAW, 1960, ART. 6,
SECS. 310-321.  NEW YORK'S EARLIER LAW, SIMILAR TO THE 1956 UNIFORM
CODE, IS STILL IN THE BOOKS, ID., SECS. 330-368, ALTHOUGH NO ONE HAS
BEEN REQUIRED TO MAINTAIN PROOF UNDER ITS PROVISIONS SINCE 1957, ID.,
SEC. 346.). 

FN35  SEE 1 COLLIER, BANKRUPTCY (14TH ED. 1956), PARA. 17.27; 8
REMINGTON, BANKRUPTCY (6TH ED. 1955), SEC. 3225; AND CASES CITED. 

FN36  ACT OF AUG. 19, 1841, C. 9, SEC. 4, 5 STAT. 440, 444:  A
DISCHARGE AND ITS CERTIFICATE "SHALL, IN ALL COURTS OF JUSTICE, BE
DEEMED A FULL AND COMPLETE DISCHARGE OF ALL DEBTS, CONTRACTS, AND OTHER
ENGAGEMENTS OF SUCH BANKRUPT, WHICH ARE PROVEABLE UNDER THIS ACT, AND
SHALL BE AND MAY BE PLEADED AS A FULL AND COMPLETE BAR TO ALL SUITS
BROUGHT IN ANY COURT OF JUDICATURE WHATEVER  ...  ." 

FN37  A GEORGIA COURT HELD THAT A DISCHARGE DOES NOT DESTROY A
LANDLORD'S RIGHT TO EVICT FOR NON-PAYMENT OF RENT, CARTER V. SUTTON,
147 GA. 496, 94 S.E. 760 (1917).  IN MINNESOTA IT WAS HELD THAT LAND
EQUITABLY CHARGED WITH THE PAYMENT OF A JUDGMENT DEBT WAS NOT RELEASED
BY THE DEBT'S DISCHARGE IN BANKRUPTCY, EVANS V. STAALLE, 88 MINN. 253,
92 N.W. 951 (1903).  IN MISSOURI A DISCHARGED DEBT WAS HELD CHARGEABLE
TO DIMINISH AN HEIR'S SHARE IN THE EQUITABLE ACCOUNTING OF AN ESTATE,
LEACH V. ARMSTRONG, 236 MO. APP.  382, 156 S.W.2D 959 (1941).  WE
INTIMATE NO OPINION ON THE CORRECTNESS OF THESE DECISIONS. 

FN38  THERE HAS BEEN AN ENORMOUS INCREASE IN NONBUSINESS BANKRUPTCY
CASES IN RECENT YEARS.  IN 1946, 8,566 SUCH PETITIONS WERE FILED; IN
1960, 97,750.  NONBUSINESS PETITIONS WERE 74.7% OF THE TOTAL IN 1940
AND 88.8% IN 1960.  HEARINGS BEFORE SUBCOMMITTEE OF HOUSE COMMITTEE ON
APPROPRIATIONS, ON THE JUDICIARY, 87TH CONG., 1ST SESS 204.  THE
TENDENCY THUS REFLECTED HAS NOT SLACKENED WITH TIME. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE STEWART, CONCURRING IN PART. 

FOR THE REASONS CONVINCINGLY SET FORTH IN THE DISSENTING OPINION OF
THE CHIEF JUSTICE, I AGREE WITH HIM THAT A THREE-JUDGE COURT SHOULD NOT
HAVE BEEN CONVENED IN THIS CASE, AND THAT CONSEQUENTLY THIS APPEAL IS
NOT PROPERLY BEFORE US.  I WOULD THEREFORE DISMISS THE APPEAL. 
THOMPSON V. WHITTIER, 365 U.S. 465.  THE COURT, HOWEVER, HOLDS THAT
THIS APPEAL IS PROPERLY HERE, AND ON THE MERITS OF THE LITIGATION I
AGREE WITH THE COURT'S CONCLUSION. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

WE ARE CONFRONTED HERE WITH A THRESHOLD QUESTION OF JURISDICTION
WHICH SHOULD, IN MY OPINION, BE DISPOSITIVE OF THE CASE.  THE QUESTION
IS WHETHER A THREE-JUDGE COURT WAS PROPERLY CONVENED FOR THE TRIAL OF
THIS CASE.  (FN1)  ALTHOUGH THE ISSUE WAS NOT CONSIDERED BY THE COURTS
BELOW, AND HAS NOT BEEN RAISED BY THE PARTIES HERE, IT IS OUR DUTY TO
TAKE INDEPENDENT NOTICE OF SUCH MATTERS AND TO VACATE AND REMAND ANY
DECREE ENTERED BY AN IMPROPERLY CONSTITUTED COURT.  (FN2)  I CANNOT
AGREE WITH THE TEST FORMULATED BY THE OPINION OF THE COURT BECAUSE I
BELIEVE THAT FOR BOTH LOWER FEDERAL COURTS AND FOR OURSELVES, IT WILL
RAISE MORE PROBLEMS THAN IT WILL SOLVE, AND BECAUSE I DO NOT SEE ANY
BASIS FOR IT EITHER IN THE STATUTE OR IN OUR PRIOR DECISIONS. 

WHEN TO CONVENE A THREE-JUDGE COURT HAS ALWAYS BEEN A TROUBLESOME
PROBLEM OF FEDERAL JURISDICTION AND A REVIEW OF THE CASES INVOLVING
THAT QUESTION ILLUSTRATES THE DIFFICULTIES THE LOWER FEDERAL COURTS
HAVE HAD IN APPLYING THE PRINCIPLES FORMULATED BY THIS COURT.  (FN3)
HOWEVER, ONE RULE HAS BEEN CLEAR:  WHERE A STATE STATUTE IS ATTACKED AS
VIOLATING DIRECTLY SOME PROVISION OF THE FEDERAL CONSTITUTION, A THREE
JUDGE COURT MUST BE CONVENED.  (FN4)  EQUALLY CLEAR HAS BEEN THE
PRINCIPLE THAT WHERE THE STATE STATUTE IS ALLEGED TO BE INOPERATIVE
BECAUSE OF THE PRESENCE OF A FEDERAL STATUTE WHICH THE SUPREMACY CLAUSE
OF THE CONSTITUTION DECLARES PRE-EMPTIVE OF THE STATE LAW, A SINGLE
JUDGE MAY DISPOSE OF THE CASE.  (FN5)  THAT, I SUBMIT, IS PRECISELY THE
SITUATION HERE.  A CASE ESSENTIALLY SIMILAR TO OURS IS CASE V. BOWLES,
327 U.S. 92.  THERE THE STATE HAD ENACTED A PROVISION REGULATING THE
MINIMUM PRICE AT WHICH CERTAIN STATE-OWNED LAND HAD TO BE SOLD WHEN
DISPOSED OF BY THE STATE.  WHEN THE STATE ATTEMPTED TO SELL TIMBER
LOCATED ON SUCH LAND AT A PRICE PERMITTED BY THE STATE ENACTMENT, THE
SALE WAS SOUGHT TO BE ENJOINED ON THE GROUND THAT THE PRICE REQUIRED BY
THE STATE LAW EXCEEDED THE LIMITS OF THE FEDERAL EMERGENCY PRICE
CONTROL ACT AND WAS THEREFORE INVALID UNDER THE SUPREMACY CLAUSE.  TO
THE STATE'S CONTENTION THAT THE COMPLAINT STATED A CAUSE OF ACTION
REQUIRED TO BE HEARD BY A THREE-JUDGE COURT, THIS COURT, SPEAKING
THROUGH MR. JUSTICE BLACK, STATED: 

"  ...  HERE THE COMPLAINT DID NOT CHALLENGE THE CONSTITUTIONALITY OF
THE STATE STATUTE BUT ALLEGED MERELY THAT ITS ENFORCEMENT WOULD VIOLATE
THE EMERGENCY PRICE CONTROL ACT.  CONSEQUENTLY A THREE-JUDGE COURT IS
NOT REQUIRED  ... ."  (FN6) 

SO IN THE CASE BEFORE US, "THE COMPLAINT DID NOT CHALLENGE THE
CONSTITUTIONALITY OF THE 

...  UTAH FINANCIAL RESPONSIBILITY ACT BUT ALLEGED THAT ITS
ENFORCEMENT WOULD VIOLATE THE  ... BANKRUPTCY ACT.  CONSEQUENTLY, A
THREE-JUDGE COURT  ...  WAS NOT REQUIRED." 

HOWEVER, THE COURT'S OPINION ADDS AN ADDITIONAL DISTINCTION.  ITS
REASONING IS THAT IF THERE IS A PRELIMINARY QUESTION OF STATUTORY
CONSTRUCTION, EITHER OF THE STATE OR FEDERAL STATUTE ALLEGED TO BE IN
CONFLICT, ONLY ONE JUDGE IS REQUIRED.  ON THE OTHER HAND, IF THE COURT
IS ABLE TO GO "DIRECTLY" TO THE CONSTITUTIONAL QUESTION (I.E., WHETHER
THE STATE STATUTE MUST FALL UNDER THE SUPREMACY CLAUSE), THREE JUDGES
ARE REQUIRED.  I DO NOT BELIEVE THAT THERE WAS ANY GREATER NEED FOR
INTERPRETATION OF THE STATUTE OR OF CONGRESSIONAL PURPOSE IN BOWLES
THAN THERE IS IN DETERMINING THE SCOPE OF THE BANKRUPTCY ACT IN
PROVIDING FOR THE DISCHARGE OF DEBTS IN THE CASE BEFORE US.  I CAN FIND
NO REAL DISTINCTION BETWEEN THE TWO CASES AND DO NOT BELIEVE THAT ONE
CAN BE FOUND IN THE STATUTES (FN7) OR ANY PLACE ELSE.  IT WOULD, IN
FACT, BE DIFFICULT TO CONCEIVE OF ANY CASE WHICH WOULD NOT CALL FOR AN
INITIAL INTERPRETATION OF THE LEGISLATION OR AN INQUIRY INTO ITS
PURPOSE OR POLICY BEFORE A COURT COULD DETERMINE IF THE STATE AND
FEDERAL STATUTES ARE IN CONFLICT.  (FN8)  THE INSTANT CASE IS NO
EXCEPTION, AND, IN MY OPINION, THE COURT'S OPINION REFUTES THE VERY
TEST WHICH IT ESTABLISHES.  (FN9)  THE DIFFERENCE OF OPINION ON THE
MERITS IN THIS CASE AMONG THE MEMBERS OF THE COURT STEMS FROM THE
MEANING AND PURPOSE OF SEC. 17 OF THE BANKRUPTCY ACT, (FN10) AND IT IS
EVIDENT THAT THE COURT'S HOLDING IN REITZ V. MEALEY, (FN11) REFERRED TO
BY THE COURT IN THE INSTANT CASE, CONSIDERED THE PURPOSES OF BOTH THE
STATE LEGISLATION AND THE FEDERAL BANKRUPTCY SCHEME.  INDEED, THE
EFFECT OF THE DISCHARGE IN BANKRUPTCY AFFORDS CONSIDERABLE LATITUDE FOR
CONSTRUCTION, AS NOTED BY THIS AND OTHER COURTS ON NUMEROUS OCCASIONS. 
(FN12) 

MOREOVER, I BELIEVE THAT IT IS TACIT IN THE SUPREMACY CLAUSE ITSELF
THAT A PRELIMINARY INQUIRY MUST ALWAYS BE MADE INTO THE POLICY BEHIND
THE LEGISLATION ALLEGED TO BE IN CONFLICT BEFORE A FINAL ANALYSIS OF
WHETHER THE FEDERAL LEGISLATION IS PRE-EMPTIVE CAN BE MADE.  (FN13)
BUT PERHAPS THE MOST PRACTICAL OBJECTION TO THE TEST FORMULATED BY THE
COURT IS THAT IT IS PLAINLY UNWORKABLE.  APPLICATION OF THAT TEST BY
LOWER FEDERAL COURTS WILL, IN MY OPINION, CREATE ADDITIONAL CONFUSION
TO AN ALREADY DIFFICULT AREA OF FEDERAL JURISDICTION.  BECAUSE I THINK
THAT WE SHOULD FOLLOW OUR PAST DECISIONS, (FN14) AND NOT IMPOSE
TECHNICAL AND UNWORKABLE DISTINCTIONS UPON THEM, I WOULD DISMISS THIS
CASE FOR LACK OF JURISDICTION IN THIS COURT.  (FN15)  HOWEVER, BECAUSE
THE COURT HAS HELD OTHERWISE AND HAS DECIDED THE MERITS OF THE ALLEGED
CONFLICT, I BELIEVE IT IS MY DUTY ALSO TO REACH THE SUBSTANTIVE
QUESTIONS. 

ON THE MERITS, I FIND MYSELF IN AGREEMENT WITH MOST OF MR. JUSTICE
FRANKFURTER'S OPINION FOR THE COURT.  STATE DRIVERS' FINANCIAL
RESPONSIBILITY LAWS INTENDED TO DISCOURAGE CARELESS DRIVING AND TO
PROMOTE SAFETY IN AUTOMOBILE TRAFFIC FOR THE PROTECTION OF ITS CITIZENS
ARE ESSENTIAL TO THE STATE'S WELL-BEING AND WIDE LATITUDE SHOULD BE
ALLOWED IN THE FORMULATION OF SUCH LAWS.  ACCORDINGLY, I AM RELUCTANT
TO SAY THAT A STATE HAS EXCEEDED ITS POWERS IN THIS AREA.  I CANNOT,
HOWEVER, AGREE WITH THE COURT'S TREATMENT OF THAT PORTION OF THE UTAH
ACT WHICH GIVES TO A CREDITOR THE DISCRETION OF DETERMINING IF AND WHEN
DRIVING PRIVILEGES MAY BE RESTORED BY THE STATE TO A PERSON WHOSE
LICENSE HAS BEEN REVOKED DUE TO HIS FAILURE TO SATISFY A JUDGMENT
INCURRED AS A RESULT OF A PREVIOUS AUTOMOBILE ACCIDENT.  (FN16) 

THE ESSENTIAL INQUIRY IN A CASE SUCH AS THIS IS NOT ONLY WHETHER THE
STATE HAS ACTED IN A FIELD IN WHICH IT HAS A LEGITIMATE INTEREST TO
ACHIEVE GOALS INHERENT IN ITS POLICE POWER.  RATHER, OUR TASK IS ALSO
TO ASCERTAIN WHETHER THE PROVISIONS OF THE STATE ACT ARE COMPATIBLE
WITH THE POLICY EXPRESSED IN THE FEDERAL LEGISLATION WITH WHICH THE
STATE LAW IS ALLEGED TO BE IN CONFLICT.  (FN17) IF THERE IS NO ESCAPE
FROM A FINDING OF INCOMPATIBILITY, THE SUPREMACY CLAUSE OF THE UNITED
STATES CONSTITUTION DEMANDS THAT THE CONFLICTING STATE LAW AND POLICY
MUST YIELD TO THE FEDERAL STATUTE.  (FN18)  THIS DEMAND IS MADE NO LESS
APPARENT BY A DETERMINATION THAT THE STATE STATUTE HAS BEEN ENACTED
PURSUANT TO AN OTHERWISE VALID EXERCISE OF STATE POWER.  (FN19) 

IN REITZ V. MEALEY, 314 U.S. 33, THIS COURT UPHELD THE NEW YORK
VARIANT OF THIS LEGISLATION, ACCORDING TO THE COURT'S OPINION IN THE
INSTANT CASE, "BECAUSE THE STATUTE WAS NOT DESIGNED TO AID COLLECTION
OF DEBTS BUT TO ENFORCE A POLICY AGAINST IRRESPONSIBLE DRIVING, AND
BECAUSE THIS POLICY WOULD BE FRUSTRATED IF NEGLIGENT DRIVERS COULD
AVOID THE STATUTE BY 'THE SIMPLE EXPEDIENT OF VOLUNTARY BANKRUPTCY'
...  ."  HERE, HOWEVER, THE COURT DECIDES A QUESTION THAT WAS
DELIBERATELY NOT CANVASSED IN REITZ, NAMELY, THE VALIDITY OF THE
PROVISION AUTHORIZING CREDITOR CONTROL OVER RESTORATION OF THE
LICENSE. 

IN MY VIEW, THE REASONS EXPRESSED FOR UPHOLDING THE NEW YORK
LEGISLATION IN REITZ DO NOT APPLY TO THIS AUTHORIZATION.  (FN20)  THE
STATE HAS A LEGITIMATE INTEREST IN REQUIRING PROOF OF FINANCIAL
RESPONSIBILITY FROM DRIVERS WHO HAVE NOT RESPONDED IN DAMGES FOR AN
ACCIDENT; AND INHERENT IN THAT INTEREST IS THE RIGHT TO DEMAND AS A
REQUISITE TO RESTORATION OF DRIVING PRIVILEGES, THAT ALL PRIOR
JUDGMENTS FOR AUTOMOBILE ACCIDENTS BE PAID.  (FN21)  TO THIS EXTENT THE
STATE ADVANCES AN INTEREST INDEPENDENT OF THE PURPOSES OF THE
BANKRUPTCY LAWS; THE INTERESTS OF THE FEDERAL AND STATE GOVERNMENTS ARE
COMPATIBLE AND HENCE NO CONFLICT WITH THE FEDERAL ACT EXISTS.  HOWEVER,
WHERE THE STATE RELINQUISHES ITS RIGHT TO DEMAND THAT PRIOR JUDGMENTS
BE PAID, AND IN ITS PLACE AUTHORIZES THE CREDITOR, THROUGH GIVING OR
WITHHOLDING HIS CONSENT TO DETERMINE WHETHER THE JUDGMENT DEBTOR MAY BE
RESTORED TO HIS DRIVING PRIVILEGES, THE PURPOSES OF THE FINANCIAL
RESPONSIBILITY LAWS ARE NO LONGER BEING SERVED.  INSTEAD OF THE
LEGITIMATE DETERMINATION TO KEEP ALL NEGLIGENT FINANCIALLY
IRRESPONSIBLE DRIVERS OFF THE HIGHWAYS, THE STATE IS, OSTENSIBLY
THROUGH ITS POLICE POWER, GIVING THE CREDITOR A POWERFUL COLLECTION
DEVICE FOR RECOVERY OF A DISCHARGED DEBT.  (FN22)  THE EMPHASIS HAS
BEEN SHIFTED TO AN ENTIRELY DIFFERENT PURPOSE AND, IN MY OPINION, THIS
CHANGE IS CRUCIAL.  THE EFFECT OF THE LAW IS TO AUTHORIZE A PRIVATE
INDIVIDUAL, FOR HIS OWN FINANCIAL INTEREST, TO DETERMINE WHETHER AND
WHEN A BANKRUPT MAY DRIVE ON THE STATE'S HIGHWAYS.  IN DEPARTING FROM
ITS LEGITIMATE INTEREST IN PROMOTING HIGHWAY SAFETY AND THUS
SUBSTITUTING THE INTERESTS OF INDIVIDUAL CREDITORS, THE STATE BRINGS
ITS LAW INTO DIRECT CONFLICT WITH THE POLICY OF THE FEDERAL STATUTE
WHICH IS DESIGNED TO RELIEVE BANKRUPT DEBTORS FROM THEIR PRIOR
FINANCIAL OBLIGATIONS.  IN THESE CIRCUMSTANCES I BELIEVE IT IS OUR DUTY
TO DECLARE THAT PORTION OF THE STATE LAW INVALID UNDER THE SUPREMACY
CLAUSE OF THE UNITED STATES CONSTITUTION. 

THIS DOES NOT MEAN THAT I WOULD STRIKE THE ENTIRE STATUTE; THE UTAH
ACT INCORPORATES A SEPARABILITY CLAUSE (FN23) WHICH HAS NEVER BEEN
INTERPRETED BY THE SUPREME COURT OF UTAH.  HOW IT WOULD VIEW THIS
SITUATION CANNOT BE FORETOLD, AND IT IS NOT WITHIN OUR PROVINCE TO
UNDERTAKE TO DO SO.  AT ALL EVENTS, NO GREAT BURDEN WOULD BE PLACED ON
THE STATE.  ALL IT NEED DO IS TO ASSUME IN ITS OWN WAY ITS
RESPONSIBILITIES FOR DETERMINING WHICH DRIVERS SHOULD BE ENTRUSTED TO
USE ITS HIGHWAYS RATHER THAN TO DELEGATE THAT POWER TO A PRIVATE
JUDGMENT CREDITOR WHOSE DEBTOR HAS BEEN DISCHARGED OF HIS DEBT BY
FEDERAL LAW. 

FOR THE REASONS STATED, I MUST DISSENT. 

FN1  PURSUANT TO 28 U.S.C. SEC. 2281, PROVIDING FOR A THREE-JUDGE
COURT WHERE AN INJUNCTION IS SOUGHT AGAINST THE ENFORCEMENT OF A STATE
STATUTE UPON THE GROUND OF ITS ALLEGED UNCONSTITUTIONALITY. 

FN2  OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO., 292 U.S.
386; GULLY V. INTERSTATE GAS CO., 292 U.S. 16.  DIRECT APPEAL FROM A
THREE-JUDGE COURT IS GOVERNED BY 28 U.S.C. SEC. 1253. 

FN3  SEE THE CASES COLLECTED IN HART AND WECHSLER, THE FEDERAL COURTS
AND THE FEDERAL SYSTEM, 843 ET SEQ.  SEE ALSO ANN., THREE-JUDGE COURT,
4 L. ED. 2D 1931 ET SEQ.    FN4  QUERY V. UNITED STATES, 316 U.S. 486;
STRATTON V. ST. LOUIS SOUTHWESTERN R. CO., 282 U.S. 10; EX PARTE
NORTHERN PAC. R. CO., 280 U.S. 142. 

FN5  FLORIDA LIME & AVOCADO GROWERS, INC., V. JACOBSEN, 362 U.S. 73
(BY IMPLICATION); CASE V. BOWLES, 327 U.S. 92; EX PARTE BUDER, 271 U.S.
461; LEMKE V. FARMERS GRAIN CO., 258 U.S. 50.  THE LOWER FEDERAL COURTS
HAVE ALSO BEEN UNANIMOUS IN SO HOLDING.  E.G., BELL V. WATERFRONT
COMMISSION, 279 F.2D 853; PENAGARICANO V. ALLEN CORP., 267 F.2D 550;
CLOVERLEAF BUTTER CO. V. PATTERSON, 116 F.2D 227, REV'D ON OTHER
GROUNDS, 315 U.S. 148; PENNSYLVANIA GREYHOUND LINES, INC., V. BOARD OF
PUBLIC UTILITY COMM'RS, 107 F. SUPP. 521.    FN6  327 U.S., AT 97. 

FN7  THE SOLE DETERMINATION FOR CONVENING A THREE-JUDGE COURT IS
WHETHER THE STATE STATUTE IS BEING ATTACKED ON THE GROUNDS OF ITS
UNCONSTITUTIONALITY.  28 U.S.C. SEC. 2281.  THE STATUTE MAKES NO
DISTINCTION BASED ON THE ABSENCE OF PRELIMINARY QUESTIONS OF
INTERPRETATION.  MOREOVER, THIS COURT HAS, IN THE PAST, ATTEMPTED TO
CONSTRUE THIS STATUTE RIGIDLY BECAUSE OF OUR RELUCTANCE TO ENLARGE OUR
OWN MANDATORY DUTIES OF REVIEW AND BECAUSE OF THE SERIOUS DRAIN THAT
"THE REQUIREMENT OF THREE JUDGES  ...  ENTAILS  ...  UPON THE FEDERAL
JUDICIAL SYSTEM  ...  ."  PHILLIPS V. UNITED STATES, 312 U.S. 246,
250. 

FN8  SEE NOTE 13, INFRA. 

FN9  A GREAT PORTION OF THE COURT'S OPINION IS DEVOTED TO A REVIEW OF
THE PURPOSE AND INTENT OF STATE-HIGHWAY FINANCIAL-RESPONSIBILITY LAWS. 
IN ADDITION, THE COURT CONSIDERS, AS IT MUST, THE SCOPE OF SEC. 17 OF
THE BANKRUPTCY ACT.  SEE ANTE, PP. 169-171.  THE COURT CONCLUDES THAT
THERE ARE "OVERLAPPING INTERESTS" BETWEEN THE TWO PIECES OF LEGISLATION
THAT NEED RESOLUTION.  SEE ANTE, P. 171. 

FN10  AS AMENDED, 52 STAT. 851, 11 U.S.C. SEC. 35.  THIS SECTION
PROVIDES IN PART, "A DISCHARGE IN BANKRUPTCY SHALL RELEASE A BANKRUPT
FROM ALL OF HIS PROVABLE DEBTS, WHETHER ALLOWABLE IN FULL OR IN PART
...  ." 

FN11  314 U.S. 33. 

FN12  SEE ZAVELO V. REEVES, 227 U.S. 625; SPALDING V. NEW YORK EX
REL. BACKUS, 4 HOW.  21 (1846)(DECIDED UNDER AN EARLIER BANKRUPTCY
LAW); PARKER V. UNITED STATES, 153 F.2D 66; IN RE KORONSKY, 170 F. 719;
CF. CRAWFORD V. BURKE, 195 U.S. 176; TINKER V. COLWELL, 193 U.S. 473. 

FN13  THE APPLICATION OF THE SUPREMACY CLAUSE IS INCREASINGLY
BECOMING A MATTER OF STATUTORY INTERPRETATION - A DETERMINATION OF
WHETHER STATE REGULATION CAN BE RECONCILED WITH THE LANGUAGE AND POLICY
OF FEDERAL LEGISLATION.  SEE, E.G., UNITED STATES V. BURNISON, 339 U.S.
87; RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218; SOUTHERN PACIFIC CO.
V. ARIZONA, 325 U.S. 761.  CF. AUTO WORKERS V. WISCONSIN EMPLOYMENT
RELATIONS BOARD, 336 U.S. 245.  THUS, THE ANSWERS TO QUESTIONS PUT
UNDER THE SUPREMACY CLAUSE MUST LARGELY BE DERIVED FROM THE STATUTE AND
THE POLICY BEHIND THE FEDERAL LEGISLATION.  SEE NOTE 18, INFRA. 

FN14  SEE NOTE 5, SUPRA. 

FN15  28 U.S.C. SEC. 1253.  SEE PHILLIPS V. UNITED STATES, 312 U.S.
246. 

FN16  THUS, I BELIEVE THAT WITHOUT THE "SUBJECT TO" CLAUSE OF UTAH
CODE ANN., 1953, SEC. 41-12-15, REFERRING TO THE CREDITOR-CONTROL
PROVISION OF SEC. 41-12-14(B), THAT SECTION WOULD BE VALID. 

FN17  CERTAINLY THE "COMPLICATED DEMANDS OF FEDERALISM" CANNOT
PREVENT US FROM FULFILLING THIS DUTY.  IN FACT, THE CONSTITUTION
EXPRESSLY PROVIDES THAT IN THIS AREA OF FEDERAL-STATE RELATIONS THESE
COMPLICATED DEMANDS SHALL PLAY NO PART.  U.S. CONST., ART. VI. 

FN18  SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S. 173, 176;
HILL V. FLORIDA, 325 U.S. 538. 

FN19  SEE, E.G., RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218, 230
231; CASE V. BOWLES, 327 U.S. 92, 101-102; NAPIER V. ATLANTIC COAST
LINE R. CO., 272 U.S. 605, 610-611.  SEE ALSO MUNN V. ILLINOIS, 94 U.S.
113.  CF. SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761. 

FN20  THE CREDITOR CONTROLS IN THE REVOCATION AND RESTORATION
PROVISIONS ARE COMPLETELY DISTINGUISHABLE, AND I FIND NO FAULT WITH
THAT PORTION OF THE ACT PERMITTING THE CREDITOR TO GIVE NOTICE OF
DEFAULT IN PAYMENT SO AS TO INITIATE THE REVOCATION PROCEDURE.  AS TO
THIS STRICTLY "PROCEDURAL" PROVISION, JUDGE HAND'S PRONOUNCEMENT IN THE
LOWER COURT'S OPINION IN REITZ V. MEALEY, 34 F. SUPP. 532 (D.C.N.D.N.Y.
1940), IS DISPOSITIVE.  HOWEVER, FOR THE REASONS NEXT STATED IN THE
TEXT, THE CREDITOR CONTROL OVER RESTORATION DOES NOT SERVE A PROCEDURAL
PURPOSE; IT IS DIRECTLY A MATTER OF SUBSTANCE AND, AS SUCH, IT CHANGES
THE WHOLE PURPOSE OF THE LEGISLATION. 

FN21  SEE NOTE 16, SUPRA.  SEE ALSO, E.G., CAL. VEHICLE CODE, 1959,
DIV. 7, SEC. 16371. 

FN22  THIS AID IS BEING GIVEN SOLELY FOR THE CREDITOR'S BENEFIT.  THE
STATE IS IN EFFECT SAYING THAT IT DOES NOT HAVE AN INTEREST IN
PREVENTING DRIVERS WHO HAVE BEEN UNABLE TO MEET THEIR FINANCIAL
OBLIGATIONS FROM USING THE HIGHWAYS - AS FAR AS THE STATE IS CONCERNED
SOME MAY AND OTHERS MAY NOT.  THE CHOICE IS DELEGATED TO THE
CREDITORS.  HENCE, CREDITOR X MAY HAVE TWO OUTSTANDING JUDGMENTS OWING
FROM TWO DIFFERENT INDIVIDUALS WHO HAVE CAUSED HIM DAMAGE IN A HIGHWAY
ACCIDENT.  ALTHOUGH THE STATE UNQUESTIONABLY HAS AN EQUAL INTEREST IN
EITHER ALLOWING OR DISALLOWING USE OF THE HIGHWAY BY THESE TWO DEBTORS,
X HAS THE SOLE DISCRETION TO SAY TO THE STATE "DEBTOR A MAY HAVE HIS
LICENSE BACK, BUT DEBTOR B MAY NOT." 

FN23  UTAH CODE ANN., 1953, SEC. 41-12-40. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

I AGREE THAT THIS CASE WAS PROPERLY HEARD BY A THREE-JUDGE DISTRICT
COURT BUT DISSENT FROM THE COURT'S HOLDING THAT UTAH MAY, THROUGH ITS
MOTOR VEHICLE SAFETY RESPONSIBILITY ACT, ENFORCE THE PAYMENT OF A
JUDGMENT ALREADY DISCHARGED UNDER THE FEDERAL BANKRUPTCY ACT.  SECTION
17 OF THE BANKRUPTCY ACT PROVIDES THAT "DISCHARGE IN BANKRUPTCY SHALL
RELEASE A BANKRUPT FROM ALL OF HIS PROVABLE DEBTS" (FN1) AND THIS COURT
HAS HELD THAT A TORT JUDGMENT, SUCH AS THAT AGAINST APPELLANT, ARISING
OUT OF AN AUTOMOBILE ACCIDENT, IS A PROVABLE DEBT WITHIN THE MEANING OF
THAT SECTION.  (FN2)  DESPITE THIS PROVISION, HOWEVER, THE COURT
UPHOLDS A UTAH LAW WHICH EXPRESSLY PROVIDES THAT "A DISCHARGE IN
BANKRUPTCY FOLLOWING THE RENDERING OF ANY  ...  JUDGMENT ARISING OUT OF
AN AUTOMOBILE ACCIDENT SHALL NOT RELIEVE THE JUDGMENT DEBTOR" OF HIS
OBLIGATION TO PAY THAT JUDGMENT AS A CONDITION OF AVOIDING PERMANENT
CANCELLATION OF HIS DRIVING LICENSE.  (FN3)  THE EFFECT OF ENFORCEMENT
OF THE UTAH LAW AGAINST THIS APPELLANT IS TO DENY HIM THE FEDERAL
IMMUNITY GIVEN BY SEC. 17 OF THE BANKRUPTCY ACT - AN EFFECT WHICH MAKES
THE LAW OF UTAH RATHER THAN THE LAW OF CONGRESS "THE SUPREME LAW OF THE
LAND."  THIS IS TRUE BECAUSE THE PLAIN AND INEVITABLE EFFECT OF THE
UTAH STATUTORY SCHEME IS TO CREATE A POWERFUL WEAPON FOR COLLECTION OF
A DEBT FROM WHICH THIS BANKRUPT HAS BEEN RELEASED BY FEDERAL LAW.  AND
PARTICULARLY WHERE, AS HERE, THE BANKRUPT'S VERY LIVELIHOOD DEPENDS
UPON HIS RETAINING A DRIVER'S LICENSE, HE HAS NO REAL CHOICE UNDER THIS
UTAH STATUTE BUT TO MAKE ARRANGEMENTS TO PAY HIS JUDGMENT CREDITOR TO
AVOID PERMANENT LOSS OF HIS LICENSE.  THAT, OF COURSE, MEANS THAT HE
MUST AGREE TO PAY THE VERY DEBT FROM WHICH HE WAS DISCHARGED BY THE
BANKRUPTCY PROCEEDING, AND THAT HE MUST FOREGO THE VERY BENEFITS FOR
WHICH CONGRESS PASSED THE BANKRUPTCY ACT.  IT ALSO MEANS THAT A UTAH
AUTOMOBILE-ACCIDENT JUDGMENT CREDITOR WILL BE GIVEN A DECIDED ADVANTAGE
OVER ALL OTHER CREDITORS SUFFERING LOSS FROM THE BANKRUPTCY IN THAT
ONLY HE CAN PROVE HIS CLAIM, SHARE IN THE DISTRIBUTION OF THE
BANKRUPT'S ESTATE AND STILL, AT THE SAME TIME, RETAIN THE POWER TO
FORCE THE BANKRUPT TO PAY THE REST OF HIS CLAIM. 

THIS ACTION OF THE STATE, WHICH TAKES AWAY THE BENEFITS CONFERRED ON
THE BANKRUPT BY CONGRESS IN SEC. 17 OF THE BANKRUPTCY ACT AND GIVES
SPECIAL PRIVILEGES TO ONE CLASS OF CREDITORS, CANNOT, IN MY JUDGMENT,
BE JUSTIFIED BY REFERENCE TO ANY "COMPLICATED DEMANDS OF OUR
FEDERALISM."  THERE ARE PLENTY OF WAYS FOR THE STATES TO PROTECT THEIR
HIGHWAYS FROM RECKLESS AND IRRESPONSIBLE DRIVERS WITHOUT RUNNING
ROUGHSHOD OVER IMMUNITIES THAT THE UNITED STATES, ACTING THROUGH A
SPECIFICALLY GRANTED, EXCLUSIVE FEDERAL POWER, HAS CHOSEN TO GIVE ITS
CITIZENS.  BUT EVEN IF THERE WERE NOT SUCH WAYS, I SEE NO REASON WHY
THE COURT IS NOT REQUIRED TO SETTLE THIS CONFLICT BETWEEN UTAH LAW AND
FEDERAL LAW IN THE WAY THAT THE CONSTITUTION REQUIRES ALL SUCH
CONFLICTS TO BE DECIDED - THAT IS, BY A SIMPLE APPLICATION OF THE
SUPREMACY CLAUSE OF THE FEDERAL CONSTITUTION.  THE COURT CHOOSES
INSTEAD TO UPHOLD THE LAW OF UTAH ON THE BASIS OF ITS PREVIOUS DECISION
IN REITZ V. MEALEY, (FN4) A DECISION WHICH I THOUGHT THEN AND STILL
THINK NOW TO BE WRONG EVEN ON THE MUCH NARROWER STATUTE WHICH WAS
SUSTAINED ON MUCH NARROWER GROUNDS IN THAT CASE.  IF THIS CASE INVOLVED
THE SAME KIND OF LIMITED STATUTE UPHELD IN REITZ I COULD ACQUIESCE ON
THE GROUND THAT THE SETTLED CONSTRUCTION OF A FEDERAL STATUTE SHOULD
NOT ORDINARILY BE DISTURBED.  (FN5)  I CAN SEE NO JUSTIFICATION,
HOWEVER, FOR EXPANDING THE HOLDING IN THAT CASE SO AS TO UPHOLD THIS
STATUTE WHICH MAKES A FAR MORE SERIOUS STATE ENCROACHMENT UPON
IMMUNITIES GRANTED BY DISCHARGE IN FEDERAL BANKRUPTCY PROCEEDINGS. 
(FN6) 

THE BANKRUPTCY ACT SERVES A HIGHLY IMPORTANT PURPOSE IN AMERICAN
LIFE.  WITHOUT THE PRIVILEGES IT BESTOWS ON HELPLESSLY INSOLVENT
DEBTORS TO MAKE A NEW START IN LIFE, MANY INDIVIDUALS WOULD FIND
THEMSELVES PERMANENTLY CRUSHED BY THE WEIGHT OF OBLIGATIONS FROM WHICH
THEY COULD NEVER HOPE TO REMOVE THEMSELVES AND THE COUNTRY MIGHT,
THEREFORE, BE DEPRIVED OF THE VALUE OF THE ENDEAVORS OF MANY OTHERWISE
USEFUL CITIZENS WHO SIMPLY WOULD HAVE LOST THEIR INCENTIVE FOR
CONSTRUCTIVE WORK.  I CANNOT AGREE WITH A DECISION WHICH LEAVVES THE
STATES FREE - SUBJECT ONLY TO THIS COURT'S VETO POWER - TO IMPAIR SUCH
AN IMPORTANT AND HISTORIC POLICY OF THIS NATION AS IS EMBODIED IN ITS
BANKRUPTCY LAWS.  I THEREFORE RESPECTFULLY DISSENT. 

FN1  11 U.S.C. SEC. 35. 

FN2 LEWIS V. ROBERTS, 267 U.S. 467. 

FN3  SECTION 41-12-15 OF THE UTAH MOTOR VEHICLE SAFETY RESPONSIBILITY
ACT, UTAH CODE ANN., 1953. 

FN4  314 U.S. 33. 

FN5  TOOLSON V. NEW YORK YANKEES, 346 U.S. 356.  SEE ALSO JAMES V.
UNITED STATES, 366 U.S. 213, 230-235 (SEPARATE OPINION CONCURRING IN
PART AND DISSENTING IN PART). 

FN6  CF. UNITED STATES V. INTERNATIONAL BOXING CLUB, 348 U.S. 236;
STILL V. NORFOLK & WESTERN R. CO., 368 U.S. 35. 
..END :












BAKER V. CARR 369 U.S. 186 


NO. 6.  ARGUED APRIL 19-20, 1961 - SET FOR REARGUMENT MAY 1, 1961 -
REARGUED OCTOBER 9, 1961 - DECIDED MARCH 26, 1962 - 179 F. SUPP. 824,
REVERSED AND CAUSE REMANDED. 


APPELLANTS ARE PERSONS ALLEGEDLY QUALIFIED TO VOTE FOR MEMBERS OF THE
GENERAL ASSEMBLY OF TENNESSEE REPRESENTING THE COUNTIES IN WHICH THEY
RESIDE.  THEY BROUGHT SUIT IN A FEDERAL DISTRICT COURT IN TENNESSEE
UNDER 42 U.S.C. SECS. 1983 AND 1988, ON BEHALF OF THEMSELVES AND OTHERS
SIMILARLY SITUATED, TO REDRESS THE ALLEGED DEPRIVATION OF THEIR FEDERAL
CONSTITUTIONAL RIGHTS BY LEGISLATION CLASSIFYING VOTERS WITH RESPECT TO
REPRESENTATION IN THE GENERAL ASSEMBLY.  THEY ALLEGED THAT, BY MEANS OF
A 1901 STATUTE OF TENNESSEE ARBITRARILY AND CAPRICIOUSLY APPORTIONING
THE SEATS IN THE GENERAL ASSEMBLY AMONG THE STATE'S 95 COUNTIES, AND A
FAILURE TO REAPPORTION THEM SUBSEQUENTLY NOTWITHSTANDING SUBSTANTIAL
GROWTH AND REDISTRIBUTION OF THE STATE'S POPULATION, THEY SUFFER A
"DEBASEMENT OF THEIR VOTES" AND WERE THEREBY DENIED THE EQUAL
PROTECTION OF THE LAWS GUARANTEED THEM BY THE FOURTEENTH AMENDMENT. 
THEY SOUGHT, INTER ALIA, A DECLARATORY JUDGMENT THAT THE 1901 STATUTE
IS UNCONSTITUTIONAL AND AN INJUNCTION RESTRAINING CERTAIN STATE
OFFICERS FROM CONDUCTING ANY FURTHER ELECTIONS UNDER IT.  THE DISTRICT
COURT DISMISSED THE COMPLAINT ON THE GROUNDS THAT IT LACKED
JURISDICTION OF THE SUBJECT MATTER AND THAT NO CLAIM WAS STATED UPON
WHICH RELIEF COULD BE GRANTED.  HELD: 

1.  THE DISTRICT COURT HAD JURISDICTION OF THE SUBJECT MATTER OF THE
FEDERAL CONSTITUTIONAL CLAIM ASSERTED IN THE COMPLAINT.  PP. 198-204. 

2.  APPELLANTS HAD STANDING TO MAINTAIN THIS SUIT.  PP. 204-208. 

3.  THE COMPLAINT'S ALLEGATIONS OF A DENIAL OF EQUAL PROTECTION
PRESENTED A JUSTICIABLE CONSTITUTIONAL CAUSE OF ACTION UPON WHICH
APPELLANTS ARE ENTITLED TO A TRIAL AND A DECISION.  PP. 208-237. 

BAKER ET AL. V. CARR ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF TENNESSEE. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CIVIL ACTION WAS BROUGHT UNDER 42 U.S.C. SECS. 1983 AND 1988 TO
REDRESS THE ALLEGED DEPRIVATION OF FEDERAL CONSTITUTIONAL RIGHTS.  THE
COMPLAINT, ALLEGING THAT BY MEANS OF A 1901 STATUTE OF TENNESSEE
APPORTIONING THE MEMBERS OF THE GENERAL ASSEMBLY AMONG THE STATE'S 95
COUNTIES, (FN1) "THESE PLAINTIFFS AND OTHERS SIMILARLY SITUATED, ARE
DENIED THE EQUAL PROTECTION OF THE LAWS ACCORDED THEM BY THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES BY VIRTUE OF THE
DEBASEMENT OF THEIR VOTES," WAS DISMISSED BY A THREE-JUDGE COURT
CONVENED UNDER 28 U.S.C. SEC. 2281 IN THE MIDDLE DISTRICT OF
TENNESSEE.  (FN2)  THE COURT HELD THAT IT LACKED JURISIDCTION OF THE
SUBJECT MATTER AND ALSO THAT NO CLAIM WAS STATED UPON WHICH RELIEF
COULD BE GRANTED.  179 F. SUPP. 824.  WE NOTED PROBABLY JURISDICTION OF
THE APPEAL.  364 U.S. 898.  (FN3)  WE HOLD THAT THE DISMISSAL WAS
ERROR, AND REMAND THE CAUSE TO THE DISTRICT COURT FOR TRIAL AND FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. 

THE GENERAL ASSEMBLY OF TENNESSEE CONSISTS OF THE SENATE WITH 33
MEMBERS AND THE HOUSE OF REPRESENTATIVES WITH 99 MEMBERS.  THE
TENNESSEE CONSTITUTION PROVIDES IN ART. II AS FOLLOWS: 

"SEC. 3.  LEGISLATIVE AUTHORITY - TERM OF OFFICE.  - THE LEGISLATIVE
AUTHORITY OF THIS STATE SHALL BE VESTED IN A GENERAL ASSEMBLY, WHICH
SHALL CONSIST OF A SENATE AND HOUSE OF REPRESENTATIVES, BOTH DEPENDENT
ON THE PEOPLE; WHO SHALL HOLD THEIR OFFICES FOR TWO YEARS FROM THE DAY
OF THE GENERAL ELECTION. 

"SEC. 4.  CENSUS.  - AN ENUMERATION OF THE QUALIFIED VOTERS, AND AN
APPORTIONMENT OF THE REPRESENTATIVES IN THE GENERAL ASSEMBLY, SHALL BE
MADE IN THE YEAR ONE THOUSAND EIGHT HUNDRED AND SEVENTY-ONE, AND WITHIN
EVERY SUBSEQUENT TERM OF TEN YEARS. 

"SEC. 5.  APPORTIONMENT OF REPRESENTATIVES.  - THE NUMBER OF
REPRESENTATIVES SHALL, AT THE SEVERAL PERIODS OF MAKING THE
ENUMERATION, BE APPORTIONED AMONG THE SEVERAL COUNTIES OR DISTRICTS,
ACCORDING TO THE NUMBER OF QUALIFIED VOTERS IN EACH; AND SHALL NOT
EXCEED SEVENTY-FIVE, UNTIL THE POPULATION OF THE STATE SHALL BE ONE
MILLION AND A HALF, AND SHALL NEVER EXCEED NINETY-NINE; PROVIDED, THAT
ANY COUNTY HAVING TWO-THIRDS OF THE RATIO SHALL BE ENTITLED TO ONE
MEMBER. 

"SEC. 6.  APPORTIONMENT OF SENATORS.  - THE NUMBER OF SENATORS SHALL,
AT THE SEVERAL PERIODS OF MAKING THE ENUMERATION, BE APPORTIONED AMONG
THE SEVERAL COUNTIES OR DISTRICTS ACCORDING TO THE NUMBER OF QUALIFIED
ELECTORS IN EACH, AND SHALL NOT EXCEED ONE-THIRD THE NUMBER OF
REPRESENTATIVES.  IN APPORTIONING THE SENATORS AMONG THE DIFFERENT
COUNTIES, THE FRACTION THAT MAY BE LOST BY ANY COUNTY OR COUNTIES, IN
THE APPORTIONMENT OF MEMBERS TO THE HOUSE OF REPRESENTATIVES, SHALL BE
MADE UP TO SUCH COUNTY OR COUNTIES IN THE SENATE, AS NEAR AS MAY BE
PRACTICABLE.  WHEN A DISTRICT IS COMPOSED OF TWO OR MORE COUNTIES, THEY
SHALL BE ADJOINING; AND NO COUNTY SHALL BE DIVIDED IN FORMING A
DISTRICT." 

THUS, TENNESSEE'S STANDARD FOR ALLOCATING LEGISLATIVE REPRESENTATION
AMONG HER COUNTIES IS THE TOTAL NUMBER OF QUALIFIED VOTERS RESIDENT IN
THE RESPECTIVE COUNTIES, SUBJECT ONLY TO MINOR QUALIFICATIONS.  (FN4)
DECENNIAL REAPPORTIONMENT IN COMPLIANCE WITH THE CONSTITUTIONAL SCHEME
WAS EFFECTED BY THE GENERAL ASSEMBLY EACH DECADE FROM 1871 TO 1901. 
THE 1871 APPORTIONMENT (FN5) WAS PRECEDED BY AN 1870 STATUTE REQUIRING
AN ENUMERATION.  (FN6)  THE 1881 APPORTIONMENT INVOLVED THREE STATUTES,
THE FIRST AUTHORIZING AN ENUMERATION, THE SECOND ENLARGING THE SENATE
FROM 25 TO 33 MEMBERS AND THE HOUSE FROM 75 TO 99 MEMBERS, AND THE
THIRD APPORTIONING THE MEMBERSHIP OF BOTH HOUSES.  (FN7)  IN 1891 THERE
WERE BOTH AN ENUMERATION AND AN APPORTIONMENT.  (FN8)  IN 1901 THE
GENERAL ASSEMBLY ABANDONED SEPARATE ENUMERATION IN FAVOR OF RELIANCE
UPON THE FEDERAL CENSUS AND PASSED THE APPORTIONMENT ACT HERE IN
CONTROVERSY.  (FN9)  IN THE MORE THAN 60 YEARS SINCE THAT ACTION, ALL
PROPOSALS IN BOTH HOUSES OF THE GENERAL ASSEMBLY FOR REAPPORTIONMENT
HAVE FAILED TO PASS.  (FN10) 

BETWEEN 1901 AND 1961, TENNESSEE HAS EXPERIENCED SUBSTANTIAL GROWTH
AND REDISTRIBUTION OF HER POPULATION.  IN 1901 THE POPULATION WAS
2,020,616, OF WHOM 487,380 WERE ELIGIBLE TO VOTE.  (FN11) THE 1960
FEDERAL CENSUS REPORTS THE STATE'S POPULATION AT 3,567,089, OF WHOM
2,092,891 ARE ELIGIBLE TO VOTE.  (FN12)  THE RELATIVE STANDINGS OF THE
COUNTIES IN TERMS OF QUALIFIED VOTERS HAVE CHANGED SIGNIFICANTLY.  IT
IS PRIMARILY THE CONTINUED APPLICATION OF THE 1901 APPORTIONMENT ACT TO
THIS SHIFTED AND ENLARGED VOTING POPULATION WHICH GIVES RISE TO THE
PRESENT CONTROVERSY. 

INDEED, THE COMPLAINT ALLEGES THAT THE 1901 STATUTE, EVEN AS OF THE
TIME OF ITS PASSAGE, "MADE NO APPORTIONMENT OF REPRESENTATIVES AND
SENATORS IN ACCORDANCE WITH THE CONSTITUTIONAL FORMULA  ...  , BUT
INSTEAD ARBITRARILY AND CAPRICIOUSLY APPORTIONED REPRESENTATIVES IN THE
SENATE AND HOUSE WITHOUT REFERENCE  ...  TO ANY LOGICAL OR REASONABLE
FORMULA WHATEVER."  (FN13)  IT IS FURTHER ALLEGED THAT "BECAUSE OF THE
POPULATION CHANGES SINCE 1900, AND THE FAILURE OF THE LEGISLATURE TO
REAPPORTION ITSELF SINCE 1901," THE 1901 STATUTE BECAME
"UNCONSTITUTIONAL AND OBSOLETE."  APPELLANTS ALSO ARGUE THAT, BECAUSE
OF THE COMPOSITION OF THE LEGISLATURE EFFECTED BY THE 1901
APPORTIONMENT ACT, REDRESS IN THE FORM OF A STATE CONSTITUTIONAL
AMENDMENT TO CHANGE THE ENTIRE MECHANISM FOR REAPPORTIONING, OR ANY
OTHER CHANGE SHORT OF THAT, IS DIFFICULT OR IMPOSSIBLE.  (FN14)  THE
COMPLAINT CONCLUDES THAT "THESE PLAINTIFFS AND OTHERS SIMILARLY
SITUATED, ARE DENIED THE EQUAL PROTECTION OF THE LAWS ACCORDED THEM BY
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES BY
VIRTUE OF THE DEBASEMENT OF THEIR VOTES."  (FN15)  THEY SEEK A
DECLARATION THAT THE 1901 STATUTE IS UNCONSTITUTIONAL AND AN INJUNCTION
RESTRAINING THE APPELLEES FROM ACTING TO CONDUCT ANY FURTHER ELECTIONS
UNDER IT. THEY ALSO PRAY THAT UNLESS AND UNTIL THE GENERAL ASSEMBLY
ENACTS A VALID REAPPORTIONMENT, THE DISTRICT COURT SHOULD EITHER DECREE
A REAPPORTIONMENT BY MATHEMATICAL APPLICATION OF THE TENNESSEE
CONSTITUTIONAL FORMULAE TO THE MOST RECENT FEDERAL CENSUS FIGURES, OR
DIRECT THE APPELLEES TO CONDUCT LEGISLATIVE ELECTIONS, PRIMARY AND
GENERAL, AT LARGE.  THEY ALSO PRAY FOR SUCH OTHER AND FURTHER RELIEF AS
MAY BE APPROPRIATE. 

                              I. 

THE DISTRICT COURT'S OPINION AND ORDER OF DISMISSAL. 

BECAUSE WE DEAL WITH THIS CASE ON APPEAL FROM AN ORDER OF DISMISSAL
GRANTED ON APPELLEES' MOTIONS, PRECISE IDENTIFICATION OF THE ISSUES
PRESENTLY CONFRONTING US DEMANDS CLEAR EXPOSITION OF THE GROUNDS UPON
WHICH THE DISTRICT COURT RESTED IN DISMISSING THE CASE.  THE DISMISSAL
ORDER RECITED THAT THE COURT SUSTAINED THE APPELLEES' GROUNDS "(1) THAT
THE COURT LACKS JURISDICTION OF THE SUBJECT MATTER, AND (2) THAT THE
COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED ...
." 

IN THE SETTING OF A CASE SUCH AS THIS, THE RECITED GROUNDS EMBRACE
TWO POSSIBLE REASONS FOR DISMISSAL: 

FIRST:  THAT THE FACTS AND INJURY ALLEGED, THE LEGAL BASES INVOKED AS
CREATING THE RIGHTS AND DUTIES RELIED UPON, AND THE RELIEF SOUGHT, FAIL
TO COME WITHIN THAT LANGUAGE OF ARTICLE III OF THE CONSTITUTION AND OF
THE JURISDICTIONAL STATUTES WHICH DEFINE THOSE MATTERS CONCERNING WHICH
UNITED STATES DISTRICT COURTS ARE EMPOWERED TO ACT: 

SECOND:  THAT, ALTHOUGH THE MATTER IS COGNIZABLE AND FACTS ARE
ALLEGED WHICH ESTABLISH INFRINGEMENT OF APPELLANTS' RIGHTS AS A RESULT
OF STATE LEGISLATIVE ACTION DEPARTING FROM A FEDERAL CONSTITUTIONAL
STANDARD, THE COURT WILL NOT PROCEED BECAUSE THE MATTER IS CONSIDERED
UNSUITED TO JUDICIAL INQUIRY OR ADJUSTMENT. 

WE TREAT THE FIRST GROUND OF DISMISSAL AS "LACK OF JURISDICTION OF
THE SUBJECT MATTER."  THE SECOND WE CONSIDER TO RESULT IN A FAILURE TO
STATE A JUSTICIABLE CAUSE OF ACTION. 

THE DISTRICT COURT'S DISMISSAL ORDER RECITED THAT IT WAS ISSUED IN
CONFORMITY WITH THE COURT'S PER CURIAM OPINION.  THE OPINION REVEALS
THAT THE COURT RESTED ITS DISMISSAL UPON LACK OF SUBJECT-MATTER
JURISDICTION AND LACK OF A JUSTICIABLE CAUSE OF ACTION WITHOUT
ATTEMPTING TO DISTINGUISH BETWEEN THESE GROUNDS.  AFTER NOTING THAT THE
PLAINTIFFS CHALLENGED THE EXISTING LEGISLATIVE APPORTIONMENT IN
TENNESSEE UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES, AND
SUMMARIZING THE SUPPORTING ALLEGATIONS AND THE RELIEF REQUESTED, THE
COURT STATED THAT: 

"THE ACTION IS PRESENTLY BEFORE THE COURT UPON THE DEFENDANTS' MOTION
TO DISMISS PREDICATED UPON THREE GROUNDS:  FIRST, THAT THE COURT LACKS
JURISDICTION OF THE SUBJECT MATTER; SECOND, THAT THE COMPLAINTS FAIL TO
STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; AND THIRD, THAT
INDISPENSABLE PARTY DEFENDANTS ARE NOT BEFORE THE COURT."  179 F.
SUPP., AT 826. 

THE COURT PROCEEDED TO EXPLAIN ITS ACTION AS TURNING ON THE CASE'S
PRESENTING A "QUESTION OF THE DISTRIBUTION OF POLITICAL STRENGTH FOR
LEGISLATIVE PURPOSES."  FOR: 

"FROM A REVIEW OF (NUMEROUS SUPREME COURT)  ...  DECISIONS THERE CAN
BE NO DOUBT THAT THE FEDERAL RULE, AS ENUNCIATED AND APPLIED BY THE
SUPREME COURT, IS THAT THE FEDERAL COURTS, WHETHER FROM A LACK OF
JURISDICTION OR FROM THE INAPPROPRIATENESS OF THE SUBJECT MATTER FOR
JUDICIAL CONSIDERATION, WILL NOT INTERVENE IN CASES OF THIS TYPE TO
COMPEL LEGISLATIVE REAPPORTIONMENT."  179 F. SUPP., AT 826. 

THE COURT WENT ON TO EXPRESS DOUBTS AS TO THE FEASIBILITY OF THE
VARIOUS POSSIBLE REMEDIES SOUGHT BY THE PLAINTIFFS.  179 F. SUPP., AT
827-828.  THEN IT MADE CLEAR THAT ITS DISMISSAL REFLECTED A VIEW NOT OF
DOUBT THAT VIOLATION OF CONSTITUTIONAL RIGHTS WAS ALLEGED, BUT OF A
COURT'S IMPOTENCE TO CORRECT THAT VIOLATION: 

"WITH THE PLAINTIFF'S ARGUMENT THAT THE LEGISLATURE OF TENNESSEE IS
GUILTY OF A CLEAR VIOLATION OF THE STATE CONSTITUTION AND OF THE RIGHTS
OF THE PLAINTIFFS THE COURT ENTIRELY AGREES.  IT ALSO AGREES THAT THE
EVIL IS A SERIOUS ONE WHICH SHOULD BE CORRECTED WITHOUT FURTHER DELAY. 
BUT EVEN SO THE REMEDY IN THIS SITUATION CLEARLY DOES NOT LIE WITH THE
COURTS.  IT HAS LONG BEEN RECOGNIZED AND IS ACCEPTED DOCTRINE THAT
THERE ARE INDEED SOME RIGHTS GUARANTEED BY THE CONSTITUTION FOR THE
VIOLATION OF WHICH THE COURTS CANNOT GIVE REDRESS."  179 F. SUPP., AT
828. 

IN LIGHT OF THE DISTRICT COURT'S TREATMENT OF THE CASE, WE HOLD TODAY
ONLY (A) THAT THE COURT POSSESSED JURISDICTION OF THE SUBJECT MATTER;
(B) THAT A JUSTICIABLE CAUSE OF ACTION IS STATED UPON WHICH APPELLANTS
WOULD BE ENTITLED TO APPROPRIATE RELIEF; AND (C) BECAUSE APPELLEES
RAISE THE ISSUE BEFORE THIS COURT, THAT THE APPELLANTS HAVE STANDING TO
CHALLENGE THE TENNESSEE APPORTIONMENT STATUTES.  (FN16)  BEYOND NOTING
THAT WE HAVE NO CAUSE AT THIS STAGE TO DOUBT THE DISTRICT COURT WILL BE
ABLE TO FASHION RELIEF IF VIOLATIONS OF CONSTITUTIONAL RIGHTS ARE
FOUND, IT IS IMPROPER NOW TO CONSIDER WHAT REMEDY WOULD BE MOST
APPROPRIATE IF APPELLANTS PREVAIL AT THE TRIAL. 

                                            II.

                 JURISDICTION OF THE SUBJECT MATTER. 

THE DISTRICT COURT WAS UNCERTAIN WHETHER OUR CASES WITHHOLDING
FEDERAL JUDICIAL RELIEF RESTED UPON A LACK OF FEDERAL JURISDICTION OR
UPON THE INAPPROPRIATENESS OF THE SUBJECT MATTER FOR JUDICIAL
CONSIDERATION - WHAT WE HAVE DESIGNATED "NONJUSTICIABILITY."  THE
DISTINCTION BETWEEN THE TWO GROUNDS IS SIGNIFICANT.  IN THE INSTANCE OF
NONJUSTICIABILITY, CONSIDERATION OF THE CAUSE IS NOT WHOLLY AND
IMMEDIATELY FORECLOSED; RATHER, THE COURT'S INQUIRY NECESSARILY
PROCEEDS TO THE POINT OF DECIDING WHETHER THE DUTY ASSERTED CAN BE
JUDICIALLY IDENTIFIED AND ITS BREACH JUDICIALLY DETERMINED, AND WHETHER
PROTECTION FOR THE RIGHT ASSERTED CAN BE JUDICIALLY MOLDED.  IN THE
INSTANCE OF LACK OF JURISDICTION THE CAUSE EITHER DOES NOT "ARISE
UNDER" THE FEDERAL CONSTITUTION, LAWS OR TREATIES (OR FALL WITHIN ONE
OF THE OTHER ENUMERATED CATEGORIES OF ART. III, SEC. 2), OR IS NOT A
"CASE OR CONTROVERSY" WITHIN THE MEANING OF THAT SECTION; OR THE CAUSE
IS NOT ONE DESCRIBED BY ANY JURISDICTIONAL STATUTE.  OUR CONCLUSION,
SEE PP. 208-237, INFRA, THAT THIS CAUSE PRESENTS NO NONJUSTICIABLE
"POLITICAL QUESTION" SETTLES THE ONLY POSSIBLE DOUBT THAT IT IS A CASE
OF CONTROVERSY.  UNDER THE PRESENT HEADING OF "JURISDICTION OF THE
SUBJECT MATTER" WE HOLD ONLY THAT THE MATTER SET FORTH IN THE COMPLAINT
DOES ARISE UNDER THE CONSTITUTION AND IS WITHIN 28 U.S.C. SEC. 1343. 

ARTICLE III, SEC. 2, OF THE FEDERAL CONSTITUTION PROVIDES THAT, "THE
JUDICIAL POWER SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING
UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES
MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY  ...  ."  IT IS
CLEAR THAT THE CAUSE OF ACTION IS ONE WHICH "ARISES UNDER" THE FEDERAL
CONSTITUTION.  THE COMPLAINT ALLEGES THAT THE 1901 STATUTE EFFECTS AN
APPORTIONMENT THAT DEPRIVES THE APPELLANTS OF THE EQUAL PROTECTION OF
THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT.  DISMISSAL OF THE
COMPLAINT UPON THE GROUND OF LACK OF JURISDICTION OF THE SUBJECT MATTER
WOULD, THEREFORE, BE JUSTIFIED ONLY IF THAT CLAIM WERE "SO ATTENUATED
AND UNSUBSTANTIAL AS TO BE ABSOLUTELY DEVOID OF MERIT," NEWBURYPORT
WATER CO. V. NEWBURYPORT, 193 U.S. 561, 579, OR "FRIVOLOUS," BELL V.
HOOD, 327 U.S. 678, 683.  (FN17)  THAT THE CLAIM IS UNSUBSTANTIAL MUST
BE "VERY PLAIN."  HART V. KEITH VAUDEVILLE EXCHANGE, 262 U.S. 271,
274.  SINCE THE DISTRICT COURT OBVIOUSLY AND CORRECTLY DID NOT DEEM THE
ASSERTED FEDERAL CONSTITUTIONAL CLAIM UNSUBSTANTIAL AND FRIVOLOUS, IT
SHOULD NOT HAVE DISMISSED THE COMPLAINT FOR WANT OF JURISDICTION OF THE
SUBJECT MATTER.  AND OF COURSE NO FURTHER CONSIDERATION OF THE MERITS
OF THE CLAIM IS RELEVANT TO A DETERMINATION OF THE COURT'S JURISDICTION
OF THE SUBJECT MATTER.  WE SAID IN AN EARLIER VOTING CASE FROM
TENNESSEE:  "IT IS OBVIOUS  ...  THAT THE COURT, IN DISMISSING FOR WANT
OF JURISDICTION, WAS CONTROLLED BY WHAT IT DEEMED TO BE THE WANT OF
MERIT IN THE AVERMENTS WHICH WERE MADE IN THE COMPLAINT AS TO THE
VIOLATION OF THE FEDERAL RIGHT.  BUT AS THE VERY NATURE OF THE
CONTROVERSY WAS FEDERAL, AND, THEREFORE, JURISDICTION EXISTED, WHILST
THE OPINION OF THE COURT AS TO THE WANT OF MERIT IN THE CAUSE OF ACTION
MIGHT HAVE FURNISHED GROUND FOR DISMISSING FOR THAT REASON, IT AFFORED
NO SUFFICIENT GROUND FOR DECIDING THAT THE ACTION WAS NOT ONE ARISING
UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES."  SWAFFORD V.
TEMPLETON, 185 U.S. 487, 493.  "FOR IT IS WELL SETTLED THAT THE FAILURE
TO STATE A PROPER CAUSE OF ACTION CALLS FOR A JUDGMENT ON THE MERITS
AND NOT FOR A DISMISSAL FOR WANT OF JURISDICTION."  BELL V. HOOD, 327
U.S. 678, 682.  SEE ALSO BINDERUP V. PATHE EXCHANGE, 263 U.S. 291, 305
308. 

SINCE THE COMPLAINT PLAINLY SETS FORTH A CASE ARISING UNDER THE
CONSTITUTION, THE SUBJECT MATTER IS WITHIN THE FEDERAL JUDICIAL POWER
DEFINED IN ART. III, SEC. 2, AND SO WITHIN THE POWER OF CONGRESS TO
ASSIGN TO THE JURISDICTION OF THE DISTRICT COURTS.  CONGRESS HAS
EXERCISED THAT POWER IN 28 U.S.C. SEC. 1343(3): 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION AUTHORIZED BY LAW (FN18) TO BE COMMENCED BY ANY PERSON  ...  TO
REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW, STATUTE,
ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT, PRIVILEGE OR
IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED STATES  ...  ." 
(FN19) 

AN UNBROKEN LINE OF OUR PRECEDENTS SUSTAINS THE FEDERAL COURT'S
JURISDICTION OF THE SUBJECT MATTER OF FEDERAL CONSTITUTIONAL CLAIMS OF
THIS NATURE.  THE FIRST CASES INVOLVED THE REDISTRICTING OF STATES FOR
THE PURPOSE OF ELECTING REPRESENTATIVES TO THE FEDERAL CONGRESS.  WHEN
THE OHIO SUPREME COURT SUSTAINED OHIO LEGISLATION AGAINST AN ATTACK FOR
REPUGNANCY TO ART. I, SEC. 4, OF THE FEDERAL CONSTITUTION, WE AFFIRMED
ON THE MERITS AND EXPRESSLY REFUSED TO DISMISS FOR WANT OF JURISDICTION
"IN VIEW  ...  OF THE SUBJECT-MATTER OF THE CONTROVERSY AND THE FEDERAL
CHARACTERISTICS WHICH INHERE IN IT  ...  ."  OHIO EX REL. DAVIS V.
HILDEBRANT, 241 U.S. 565, 570.  WHEN THE MINNESOTA SUPREME COURT
AFFIRMED THE DISMISSAL OF A SUIT TO ENJOIN THE SECRETARY OF STATE OF
MINNESOTA FROM ACTING UNDER MINNESOTA REDISTRICTING LEGISLATION, WE
REVIEWED THE CONSTITUTIONAL MERITS OF THE LEGISLATION AND REVERSED THE
STATE SUPREME COURT.  SMILEY V. HOLM, 285 U.S. 355.  AND SEE COMPANION
CASES FROM THE NEW YORK COURT OF APPEALS AND THE MISSOURI SUPREME
COURT, KOENIG V. FLYNN, 285 U.S. 375; CARROLL V. BECKER, 285 U.S. 380. 
WHEN A THREE-JUDGE DISTRICT COURT, EXERCISING JURISDICTION UNDER THE
PREDECESSOR OF 28 U.S.C. SEC. 1343(3), PERMANENTLY ENJOINED OFFICERS OF
THE STATE OF MISSISSIPPI FROM CONDUCTING AN ELECTION OF REPRESENTATIVES
UNDER A MISSISSIPPI REDISTRICTING ACT, WE REVIEWED THE FEDERAL
QUESTIONS ON THE MERITS AND REVERSED THE DISTRICT COURT.  WOOD V.
BROOM, 287 U.S. 1, REVERSING 1 F. SUPP. 134.  A SIMILAR DECREE OF A
DISTRICT COURT, EXERCISING JURISDICTION UNDER THE SAME STATUTE,
CONCERNING A KENTUCKY REDISTRICTING ACT, WAS REVIEWED AND THE DECREE
REVERSED.  MAHAN V. HUME, 287 U.S. 575, REVERSING 1 F. SUPP. 142. 
(FN20) 

THE APPELLEES REFER TO COLEGROVE V. GREEN, 328 U.S. 549, AS AUTHORITY
THAT THE DISTRICT COURT LACKED JURISDICTION OF THE SUBJECT MATTER. 
APPELLEES MISCONCEIVE THE HOLDING OF THAT CASE.  THE HOLDING WAS
PRECISELY CONTRARY TO THEIR READING OF IT.  SEVEN MEMBERS OF THE COURT
PARTICIPATED IN THE DECISION.  UNLIKE MANY OTHER CASES IN THIS FIELD
WHICH HAVE ASSUMED WITHOUT DISCUSSION THAT THERE WAS JURISDICTION, ALL
THREE OPINIONS FILED IN COLEGROVE DISCUSSED THE QUESTION.  TWO OF THE
OPINIONS EXPRESSING THE VIEWS OF FOUR OF THE JUSTICES, A MAJORITY,
FLATLY HELD THAT THERE WAS JURISDICTION OF THE SUBJECT MATTER.  MR.
JUSTICE BLACK JOINED BY MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY
STATED:  "IT IS MY JUDGMENT THAT THE DISTRICT COURT HAD JURISDICTION
...  ," CITING THE PREDECESSOR OF 28 U.S.C. SEC. 1343(3), AND BELL V.
HOOD, SUPRA.  328 U.S., AT 568.  MR. JUSTICE RUTLEDGE, WRITING
SEPARATELY, EXPRESSED AGREEMENT WITH THIS CONCLUSION.  328 U.S., AT
564, 565, N.2.   INDEED, IT IS EVEN QUESTIONABLE THAT THE OPINION OF
MR. JUSTICE FRANKFURTER, JOINED BY JUSTICES REED AND BURTON, DOUBTED
JURISDICTION OF THE SUBJECT MATTER.  SUCH DOUBT WOULD HAVE BEEN
INCONSISTENT WITH THE PROFESSED WILLINGNESS TO TURN THE DECISION ON
EITHER THE MAJORITY OR CONCURRING VIEWS IN WOOD V. BROOM, SUPRA.  328
U.S., AT 551. 

SEVERAL SUBSEQUENT CASES SIMILAR TO COLEGROVE HAVE BEEN DECIDED BY
THE COURT IN SUMMARY PER CURIAM STATEMENTS.  NONE WAS DISMISSED FOR
WANT OF JURISDICTION OF THE SUBJECT MATTER.  COOK V. FORTSON, 329 U.S.
675; TURMAN V. DUCKWORTH, IBID.; COLEGROVE V. BARRETT, 330 U.S. 804;
(FN21) TEDESCO V. BOARD OF SUPERVISORS, 339 U.S. 940; REMMEY V. SMITH,
342 U.S. 916; COX V. PETERS, 342 U.S. 936; ANDERSON V. JORDAN, 343 U.S.
912; KIDD V. MCCANLESS, 352 U.S. 920; RADFORD V. GARY, 352 U.S. 991;
HARTSFIELD V. SLOAN, 357 U.S. 916; MATTHEWS V. HANDLEY, 361 U.S. 127. 
(FN22) 

TWO CASES DECIDED WITH OPINIONS AFTER COLEGROVE LIKEWISE PLAINLY
IMPLY THAT THE SUBJECT MATTER OF THIS SUIT IS WITHIN DISTRICT COURT
JURISDICTION.  IN MACDOUGALL V. GREEN, 335 U.S. 281, THE DISTRICT COURT
DISMISSED FOR WANT OF JURISDICTION, WHICH HAD BEEN INVOKED UNDER 28
U.S.C. SEC. 1343(3), A SUIT TO ENJOIN ENFORCEMENT OF THE REQUIREMENT
THAT NOMINEES FOR STATE-WIDE ELECTIONS BE SUPPORTED BY A PETITION
SIGNED BY A MINIMUM NUMBER OF PERSONS FROM AT LEAST 50 OF THE STATE'S
102 COUNTIES.  THIS COURT'S DISAGREEMENT WITH THAT ACTION IS CLEAR
SINCE THE COURT AFFIRMED THE JUDGMENT AFTER A REVIEW OF THE MERITS AND
CONCLUDED THAT THE PARTICULAR CLAIM THERE WAS WITHOUT MERIT.  IN SOUTH
V. PETERS, 339 U.S. 276, WE AFFIRMED THE DISMISSAL OF AN ATTACK ON THE
GEORGIA "COUNTY UNIT" SYSTEM BUT FOUNDED OUR ACTION ON A GROUND THAT
PLAINLY WOULD NOT HAVE BEEN REACHED IF THE LOWER COURT LACKED
JURISDICTION OF THE SUBJECT MATTER, WHICH ALLEGEDLY EXISTED UNDER 28
U.S.C. SEC. 1343(3).  THE EXPRESS WORDS OF OUR HOLDING WERE THAT
"FEDERAL COURTS CONSISTENTLY REFUSE TO EXERCISE THEIR EQUITY POWERS IN
CASES POSING POLITICAL ISSUES ARISING FROM A STATE'S GEOGRAPHICAL
DISTRIBUTION OF ELECTORAL STRENGTH AMONG ITS POLITICAL SUBDIVISIONS." 
339 U.S., AT 277. 

WE HOLD THAT THE DISTRICT COURT HAS JURISDICTION OF THE SUBJECT
MATTER OF THE FEDERAL CONSTITUTIONAL CLAIM ASSERTED IN THE COMPLAINT. 

                                             III. 

                                        STANDING. 

A FEDERAL COURT CANNOT "PRONOUNCE ANY STATUTE, EITHER OF A STATE OR
OF THE UNITED STATES, VOID, BECAUSE IRRECONCILABLE WITH THE
CONSTITUTION, EXCEPT AS IT IS CALLED UPON TO ADJUDGE THE LEGAL RIGHTS
OF LITIGANTS IN ACTUAL CONTROVERSIES."  LIVERPOOL STEAMSHIP CO. V.
COMMISSIONERS OF EMIGRATION, 113 U.S. 33, 39.  HAVE THE APPELLANTS
ALLEGED SUCH A PERSONAL STAKE IN THE OUTCOME OF THE CONTROVERSY AS TO
ASSURE THAT CONCRETE ADVERSENESS WHICH SHARPENS THE PRESENTATION OF
ISSUES UPON WHICH THE COURT SO LARGELY DEPENDS FOR ILLUMINATION OF
DIFFICULT CONSTITUTIONAL QUESTIONS?  THIS IS THE GIST OF THE QUESTION
OF STANDING.  IT IS, OF COURSE, A QUESTION OF FEDERAL LAW. 

THE COMPLAINT WAS FILED BY RESIDENTS OF DAVIDSON, HAMILTON, KNOX,
MONTGOMERY, AND SHELBY COUNTIES.   EACH IS A PERSON ALLEGEDLY QUALIFIED
TO VOTE FOR MEMBERS OF THE GENERAL ASSEMBLY REPRESENTING HIS COUNTY. 
(FN23)  THESE APPELLANTS SUED "ON THEIR OWN BEHALF AND ON BEHALF OF ALL
QUALIFIED VOTERS OF THEIR RESPECTIVE COUNTIES, AND FURTHER, ON BEHALF
OF ALL VOTERS OF THE STATE OF TENNESSEE WHO ARE SIMILARLY SITUATED  ...
."  (FN24)  THE APPELLEES ARE THE TENNESSEE SECRETARY OF STATE,
ATTORNEY GENERAL, COORDINATOR OF ELECTIONS, AND MEMBERS OF THE STATE
BOARD OF ELECTIONS; THE MEMBERS OF THE STATE BOARD ARE SUED IN THEIR
OWN RIGHT AND ALSO AS REPRESENTATIVES OF THE COUNTY ELECTION
COMMISSIONERS WHOM THEY APPOINT.  (FN25) 

WE HOLD THAT THE APPELLANTS DO HAVE STANDING TO MAINTAIN THIS SUIT. 
OUR DECISIONS PLAINLY SUPPORT THIS CONCLUSION.  MANY OF THE CASES HAVE
ASSUMED RATHER THAN ARTICULATED THE PREMISE IN DECIDING THE MERITS OF
SIMILAR CLAIMS.  (FN26)  AND COLEGROVE V. GREEN, SUPRA, SQUARELY HELD
THAT VOTERS WHO ALLEGE FACTS SHOWING DISADVANTAGE TO THEMSELVES AS
INDIVIDUALS HAVE STANDING TO SUE.  (FN27)  A NUMBER OF CASES DECIDED
AFTER COLEGROVE RECOGNIZED THE STANDING OF THE VOTERS THERE INVOLVED TO
BRING THOSE ACTIONS.  (FN28) 

THESE APPELLANTS SEEK RELIEF IN ORDER TO PROTECT OR VINDICATE AN
INTEREST OF THEIR OWN, AND OF THOSE SIMILARLY SITUATED.  THEIR
CONSTITUTIONAL CLAIM IS, IN SUBSTANCE, THAT THE 1901 STATUTE
CONSTITUTES ARBITRARY AND CAPRICIOUS STATE ACTION, OFFENSIVE TO THE
FOURTEENTH AMENDMENT IN ITS IRRATIONAL DISREGARD OF THE STANDARD OF
APPORTIONMENT PRESCRIBED BY THE STATE'S CONSTITUTION OR OF ANY
STANDARD, EFFECTING A GROSS DISPROPORTION OF REPRESENTATION TO VOTING
POPULATION.  THE INJURY WHICH APPELLANTS ASSERT IS THAT THIS
CLASSIFICATION DISFAVORS THE VOTERS IN THE COUNTIES IN WHICH THEY
RESIDE, PLACING THEM IN A POSITION OF CONSTITUTIONALLY UNJUSTIFIABLE
INEQUALITY VIS-A-VIS VOTERS IN IRRATIONALLY FAVORED COUNTIES.  A
CITIZEN'S RIGHT TO A VOTE FREE OF ARBITRARY IMPAIRMENT BY STATE ACTION
HAS BEEN JUDICIALLY RECOGNIZED AS A RIGHT SECURED BY THE CONSTITUTION,
WHEN SUCH IMPAIRMENT RESULTED FROM DILUTION BY A FALSE TALLY, CF.
UNITED STATES V. CLASSIC, 313 U.S. 299; OR BY A REFUSAL TO COUNT VOTES
FROM ARBITRARILY SELECTED PRECINCTS, CF. UNITED STATES V. MOSLEY, 238
U.S.  383, OR BY A STUFFING OF THE BALLOT BOX, CF. EX PARTE SIEBOLD,
100 U.S. 371; UNITED STATES V. SAYLOR, 322 U.S. 385. 

IT WOULD NOT BE NECESSARY TO DECIDE WHETHER APPELLANTS' ALLEGATIONS
OF IMPAIRMENT OF THEIR VOTES BY THE 1901 APPORTIONMENT WILL,
ULTIMATELY, ENTITLE THEM TO ANY RELIEF, IN ORDER TO HOLD THAT THEY HAVE
STANDING TO SEEK IT.  IF SUCH IMPAIRMENT DOES PRODUCE A LEGALLY
COGNIZABLE INJURY, THEY ARE AMONG THOSE WHO HAVE SUSTAINED IT.  THEY
ARE ASSERTING "A PLAIN, DIRECT AND ADEQUATE INTEREST IN MAINTAINING THE
EFFECTIVENESS OF THEIR VOTES," COLEMAN V. MILLER, 307 U.S., AT 438, NOT
MERELY A CLAIM OF "THE RIGHT, POSSESSED BY EVERY CITIZEN, TO REQUIRE
THAT THE GOVERNMENT BE ADMINISTERED ACCORDING TO LAW  ...  ." 
FAIRCHILD V. HUGHES, 258 U.S. 126, 129; COMPARE LESER V. GARNETT, 258
U.S. 130.  THEY ARE ENTITLED TO A HEARING AND TO THE DISTRICT COURT'S
DECISION ON THEIR CLAIMS.  "THE VERY ESSENCE OF CIVIL LIBERTY CERTAINLY
CONSISTS IN THE RIGHT OF EVERY INDIVIDUAL TO CLAIM THE PROTECTION OF
THE LAWS, WHENEVER HE RECEIVES AN INJURY."  MARBURY V. MADISON, 1
CRANCH 137, 163. 

                                     IV.

                        JUSTICIABILITY. 

IN HOLDING THAT THE SUBJECT MATTER OF THIS SUIT WAS NOT JUSTICIABLE,
THE DISTRICT COURT RELIED ON COLEGROVE V. GREEN, SUPRA, AND SUBSEQUENT
PER CURIAM CASES.  (FN29)  THE COURT STATED:  "FROM A REVIEW OF THESE
DECISIONS THERE CAN BE NO DOUBT THAT THE FEDERAL RULE  ...  IS THAT THE
FEDERAL COURTS  ...  WILL NOT INTERVENE IN CASES OF THIS TYPE TO COMPEL
LEGISLATIVE REAPPORTIONMENT."  179 F. SUPP., AT 826.  WE UNDERSTAND THE
DISTRICT COURT TO HAVE READ THE CITED CASES AS COMPELLING THE
CONCLUSION THAT SINCE THE APPELLANTS SOUGHT TO HAVE A LEGISLATIVE
APPORTIONMENT HELD UNCONSTITUTIONAL, THEIR SUIT PRESENTED A "POLITICAL
QUESTION" AND WAS THEREFORE NONJUSTICIABLE.  WE HOLD THAT THIS
CHALLENGE TO AN APPORTIONMENT PRESENTS NO NONJUSTICIABLE "POLITICAL
QUESTION."  THE CITED CASES DO NOT HOLD THE CONTRARY. 

OF COURSE THE MERE FACT THAT THE SUIT SEEKS PROTECTION OF A POLITICAL
RIGHT DOES NOT MEAN IT PRESENTS A POLITICAL QUESTION.  SUCH AN
OBJECTION "IS LITTLE MORE THAN A PLAY UPON WORDS."  NIXON V. HERNDON,
273 U.S. 536, 540.  RATHER, IT IS ARGUED THAT APPORTIONMENT CASES,
WHATEVER THE ACTUAL WORDING OF THE COMPLAINT, CAN INVOLVE NO FEDERAL
CONSTITUTIONAL RIGHT EXCEPT ONE RESTING ON THE GUARANTY OF A REPUBLICAN
FORM OF GOVERNMENT, (FN30) AND THAT COMPLAINTS BASED ON THAT CLAUSE
HAVE BEEN HELD TO PRESENT POLITICAL QUESTIONS WHICH ARE
NONJUSTICIABLE. 

WE HOLD THAT THE CLAIM PLEADED HERE NEITHER RESTS UPON NOR IMPLICATES
THE GUARANTY CLAUSE AND THAT ITS JUSTICIABILITY IS THEREFORE NOT
FORECLOSED BY OUR DECISIONS OF CASES INVOLVING THAT CLAUSE.  THE
DISTRICT COURT MISINTERPRETED COLEGROVE V. GREEN AND OTHER DECISIONS OF
THIS COURT ON WHICH IT RELIED.  APPELLANTS' CLAIM THAT THEY ARE BEING
DENIED EQUAL PROTECTION IS JUSTICIABLE, AND IF "DISCRIMINATION IS
SUFFICIENTLY SHOWN, THE RIGHT TO RELIEF UNDER THE EQUAL PROTECTION
CLAUSE IS NOT DIMINISHED BY THE FACT THAT THE DISCRIMINATION RELATES TO
POLITICAL RIGHTS."  SNOWDEN V. HUGHES, 321 U.S. 1, 11.  TO SHOW WHY WE
REJECT THE ARGUMENT BASED ON THE GUARANTY CLAUSE, WE MUST EXAMINE THE
AUTHORITIES UNDER IT.  BUT BECAUSE THERE APPEARS TO BE SOME UNCERTAINTY
AS TO WHY THOSE CASES DID PRESENT POLITICAL QUESTIONS, AND SPECIFICALLY
AS TO WHETHER THIS APPORTIONMENT CASE IS LIKE THOSE CASES, WE DEEM IT
NECESSARY FIRST TO CONSIDER THE CONTOURS OF THE "POLITICAL QUESTION"
DOCTRINE.    OUR DISCUSSION, EVEN AT THE PRICE OF EXTENDING THIS
OPINION, REQUIRES REVIEW OF A NUMBER OF POLITICAL QUESTION CASES, IN
ORDER TO EXPOSE THE ATTRIBUTES OF THE DOCTRINE - ATTRIBUTES WHICH, IN
VARIOUS SETTINGS, DIVERGE, COMBINE, APPEAR, AND DISAPPEAR IN SEEMING
DISORDERLINESS.  SINCE THAT REVIEW IS UNDERTAKEN SOLELY TO DEMONSTRATE
THAT NEITHER SINGLY NOR COLLECTIVELY DO THESE CASES SUPPORT A
CONCLUSION THAT THIS APPORTIONMENT CASE IS NONJUSTICIABLE, WE OF COURSE
DO NOT EXPLORE THEIR IMPLICATIONS IN OTHER CONTEXTS.  THAT REVIEW
REVEALS THAT IN THE GUARANTY CLAUSE CASES AND IN THE OTHER "POLITICAL
QUESTION" CASES, IT IS THE RELATIONSHIP BETWEEN THE JUDICIARY AND THE
COORDINATE BRANCHES OF THE FEDERAL GOVERNMENT, AND NOT THE FEDERAL
JUDICIARY'S RELATIONSHIP TO THE STATES, WHICH GIVES RISE TO THE
"POLITICAL QUESTION." 

WE HAVE SAID THAT "IN DETERMINING WHETHER A QUESTION FALLS WITHIN
(THE POLITICAL QUESTION) CATEGORY, THE APPROPRIATENESS UNDER OUR SYSTEM
OF GOVERNMENT OF ATTRIBUTING FINALITY TO THE ACTION OF THE POLITICAL
DEPARTMENTS AND ALSO THE LACK OF SATISFACTORY CRITERIA FOR A JUDICIAL
DETERMINATION ARE DOMINANT CONSIDERATIONS."  COLEMAN V. MILLER, 307
U.S. 433, 454-455.  THE NONJUSTICIABILITY OF A POLITICAL QUESTION IS
PRIMARILY A FUNCTION OF THE SEPARATION OF POWERS.  MUCH CONFUSION
RESULTS FROM THE CAPACITY OF THE "POLITICAL QUESTION" LABEL TO OBSCURE
THE NEED FOR CASE-BY-CASE INQUIRY.  DECIDING WHETHER A MATTER HAS IN
ANY MEASURE BEEN COMMITTED BY THE CONSTITUTION TO ANOTHER BRANCH OF
GOVERNMENT, OR WHETHER THE ACTION OF THAT BRANCH EXCEEDS WHATEVER
AUTHORITY HAS BEEN COMMITTED, IS ITSELF A DELICATE EXERCISE IN
CONSTITUTIONAL INTERPRETATION, AND IS A RESPONSIILITY OF THIS COURT AS
ULTIMATE INTERPRETER OF THE CONSTITUTION.  TO DEMONSTRATE THIS REQUIRES
NO LESS THAN TO ANALYZE REPRESENTATIVE CASES AND TO INFER FROM THEM THE
ANALYTICAL THREADS THAT MAKE UP THE POLITICAL QUESTION DOCTRINE.  WE
SHALL THEN SHOW THAT NONE OF THOSE THREADS CATCHES THIS CASE. 

FOREIGN RELATIONS:  THERE ARE SWEEPING STATEMENTS TO THE EFFECT THAT
ALL QUESTIONS TOUCHING FOREIGN RELATIONS ARE POLITICAL QUESTIONS. 
(FN31)  NOT ONLY DOES RESOLUTION OF SUCH ISSUES FREQUENTLY TURN ON
STANDARDS THAT DEFY JUDICIAL APPLICATION, OR INVOLVE THE EXERCISE OF A
DISCRETION DEMONSTRABLY COMMITTED TO THE EXECUTIVE OR LEGISLATURE;
(FN32) BUT MANY SUCH QUESTIONS UNIQUELY DEMAND SINGLE-VOICED STATEMENT
OF THE GOVERNMENT'S VIEWS.  (FN33)  YET IT IS ERROR TO SUPPOSE THAT
EVERY CASE OR CONTROVERSY WHICH TOUCHES FOREIGN RELATIONS LIES BEYOND
JUDICIAL COGNIZANCE.  OUR CASES IN THIS FIELD SEEM INVARIABLY TO SHOW A
DISCRIMINATING ANALYSIS OF THE PARTICULAR QUESTION POSED, IN TERMS OF
THE HISTORY OF ITS MANAGEMENT BY THE POLITICAL BRANCHES, OF ITS
SUSCEPTIBILITY TO JUDICIAL HANDLING IN THE LIGHT OF ITS NATURE AND
POSTURE IN THE SPECIFIC CASE, AND OF THE POSSIBLE CONSEQUENCES OF
JUDICIAL ACTION.  FOR EXAMPLE, THOUGH A COURT WILL NOT ORDINARILY
INQUIRE WHETHER A TREATY HAS BEEN TERMINATED, SINCE ON THAT QUESTION
"GOVERNMENTAL ACTION  ...  MUST BE REGARDED AS OF CONTROLLING
IMPORTANCE," IF THERE HAS BEEN NO CONCLUSIVE "GOVERNMENTAL ACTION" THEN
A COURT CAN CONSTRUE A TREATY AND MAY FIND IT PROVIDES THE ANSWER. 
COMPARE TERLINDEN V. AMES, 184 U.S. 270, 285, WITH SOCIETY FOR THE
PROPAGATION OF THE GOSPEL IN FOREIGN PARTS V. NEW HAVEN, 8 WHEAT.  464,
492-495.  (FN34)  THOUGH A COURT WILL NOT UNDERTAKE TO CONSTRUE A
TREATY IN A MANNER INCONSISTENT WITH A SUBSEQUENT FEDERAL STATUTE, NO
SIMILAR HESITANCY OBTAINS IF THE ASSERTED CLASH IS WITH STATE LAW. 
COMPARE WHITNEY V. ROBERTSON, 124 U.S. 190, WITH KOLOVRAT V. OREGON,
366 U.S. 187. 

WHILE RECOGNITION OF FOREIGN GOVERNMENTS SO STRONGLY DEFIES JUDICIAL
TREATMENT THAT WITHOUT EXECUTIVE RECOGNITION A FOREIGN STATE HAS BEEN
CALLED "A REPUBLIC OF WHOSE EXISTENCE WE KNOW NOTHING," (FN35) AND THE
JUDICIARY ORDINARILY FOLLOWS THE EXECUTIVE AS TO WHICH NATION HAS
SOVEREIGNTY OVER DISPUTED TERRITORY, (FN36) ONCE SOVEREIGNTY OVER AN
AREA IS POLITICALLY DETERMINED AND DECLARED, COURTS MAY EXAMINE THE
RESULTING STATUS AND DECIDE INDEPENDENTLY WHETHER A STATUTE APPLIES TO
THAT AREA.  (FN37)  SIMILARLY, RECOGNITION OF BELLIGERENCY ABROAD IS AN
EXECUTIVE RESPONSIBILITY, BUT IF THE EXECUTIVE PROCLAMATIONS FALL SHORT
OF AN EXPLICIT ANSWER, A COURT MAY CONSTRUE THEM SEEKING, FOR EXAMPLE,
TO DETERMINE WHETHER THE SITUATION IS SUCH THAT STATUTES DESIGNED TO
ASSURE AMERICAN NEUTRALITY HAVE BECOME OPERATIVE.  THE THREE FRIENDS,
166 U.S. 1, 63, 66.  STILL AGAIN, THOUGH IT IS THE EXECUTIVE THAT
DETERMINES A PERSON'S STATUS AS REPRESENTATIVE OF A FOREIGN GOVERNMENT,
EX PARTE HITZ, 111 U.S. 766, THE EXECUTIVE'S STATEMENTS WILL BE
CONSTRUED WHERE NECESSARY TO DETERMINE THE COURT'S JURISDICTION, IN RE
BAIZ, 135 U.S. 403.  SIMILAR JUDICIAL ACTION IN THE ABSENCE OF A
RECOGNIZEDLY AUTHORITATIVE EXECUTIVE DECLARATION OCCURS IN CASES
INVOLVING THE IMMUNITY FROM SEIZURE OF VESSELS OWNED BY FRIENDLY
FOREIGN GOVERNMENTS.  COMPARE EX PARTE PERU, 318 U.S. 578, WITH MEXICO
V. HOFFMAN, 324 U.S. 30, 34-35. 

DATES OF DURATION OF HOSTILITIES:  THOUGH IT HAS BEEN STATED BROADLY
THAT "THE POWER WHICH DECLARED THE NECESSITY IS THE POWER TO DECLARE
ITS CESSATION, AND WHAT THE CESSATION REQUIRES," COMMERCIAL TRUST CO.
V. MILLER, 262 U.S. 51, 57, HERE TOO ANALYSIS REVEALS ISOLABLE REASONS
FOR THE PRESENCE OF POLITICAL QUESTIONS, UNDERLYING THIS COURT'S
REFUSAL TO REVIEW THE POLITICAL DEPARTMENTS' DETERMINATION OF WHEN OR
WHETHER A WAR HAS ENDED.  DOMINANT IS THE NEED FOR FINALITY IN THE
POLITICAL DETERMINATION, FOR EMERGENCY'S NATURE DEMANDS "A PROMPT AND
UNHESITATING OBEDIENCE," MARTIN V. MOTT, 12 WHEAT.  19, 30 (CALLING UP
OF MILITIA).  MOREOVER, "THE CESSATION OF HOSTILITIES DOES NOT
NECESSARILY END THE WAR POWER.  IT WAS STATED IN HAMILTON V. KENTUCKY
DISTILLERIES & W. CO., 251 U.S. 146, 161, THAT THE WAR POWER INCLUDES
THE POWER 'TO REMEDY THE EVILS WHICH HAVE ARISEN FROM ITS RISE AND
PROGRESS' AND CONTINUES DURING THAT EMERGENCY.  STEWART V. KAHN, 11
WALL.  493, 507."  FLEMING V. MOHAWK WRECKING CO., 331 U.S. 111, 116. 
BUT DEFERENCE RESTS ON REASON, NOT HABIT.   (FN38)  THE QUESTION IN A
PARTICULAR CASE MAY NOT SERIOUSLY IMPLICATE CONSIDERATIONS OF FINALITY
E.G., A PUBLIC PROGRAM OF IMPORTANCE (RENT CONTROL) YET NOT CENTRAL TO
THE EMERGENCY EFFORT.  (FN39)  FURTHER, CLEARLY DEFINABLE CRITERIA FOR
DECISION MAY BE AVAILABLE.  IN SUCH CASE THE POLITICAL QUESTION BARRIER
FALLS AWAY:  "A COURT IS NOT AT LIBERTY TO SHUT ITS EYES TO AN OBVIOUS
MISTAKE, WHEN THE VALIDITY OF THE LAW DEPENDS UPON THE TRUTH OF WHAT IS
DECLARED  ...  . IT CAN INQUIRE WHETHER THE EXIGENCY STILL EXISTED UPON
WHICH THE CONTINUED OPERATION OF THE LAW DEPENDED."  CHASTLETON CORP.
V. SINCLAIR, 264 U.S. 543, 547-548.  (FN40)  COMPARE WOODS V. MILLER
CO., 333 U.S. 138.  ON THE OTHER HAND, EVEN IN PRIVATE LITIGATION WHICH
DIRECTLY IMPLICATES NO FEATURE OF SEPARATION OF POWERS, LACK OF
JUDICIALLY DISCOVERABLE STANDARDS AND THE DRIVE FOR EVEN-HANDED
APPLICATION MAY IMPEL REFERENCE TO THE POLITICAL DEPARTMENTS'
DETERMINATION OF DATES OF HOSTILITIES' BEGINNING AND ENDING.  THE
PROTECTOR, 12 WALL.  700. 

VALIDITY OF ENACTMENTS:  IN COLEMAN V. MILLER, SUPRA, THIS COURT HELD
THAT THE QUESTIONS OF HOW LONG A PROPOSED AMENDMENT TO THE FEDERAL
CONSTITUTION REMAINED OPEN TO RATIFICATION, AND WHAT EFFECT A PRIOR
REJECTION HAD ON A SUBSEQUENT RATIFICATION, WERE COMMITTED TO
CONGRESSIONAL RESOLUTION AND INVOLVED CRITERIA OF DECISION THAT
NECESSARILY ESCAPED THE JUDICIAL GRASP.  (FN41)  SIMILAR CONSIDERATIONS
APPLY TO THE ENACTING PROCESS:  "THE RESPECT DUE TO COEQUAL AND
INDEPENDENT DEPARTMENTS," AND THE NEED FOR FINALITY AND CERTAINTY ABOUT
THE STATUS OF A STATUTE CONTRIBUTE TO JUDICIAL RELUCTANCE TO INQUIRE
WHETHER, AS PASSED, IT COMPLIED WITH ALL REQUISITE FORMALITIES.  FIELD
V. CLARK, 143 U.S. 649, 672, 676-677; SEE LESER V. GARNETT, 258 U.S.
130, 137.  BUT IT IS NOT TRUE THAT COURTS WILL NEVER DELVE INTO A
LEGISLATURE'S RECORDS UPON SUCH A QUEST:  IF THE ENROLLED STATUTE LACKS
AN EFFECTIVE DATE, A COURT WILL NOT HESITATE TO SEEK IT IN THE
LEGISLATIVE JOURNALS IN ORDER TO PRESERVE THE ENACTMENT.  GARDNER V.
THE COLLECTOR, 6 WALL.  499.  THE POLITICAL QUESTION DOCTRINE, A TOOL
FOR MAINTENANCE OF GOVERNMENTAL ORDER, WILL NOT BE SO APPLIED AS TO
PROMOTE ONLY DISORDER. 

THE STATUS OF INDIAN TRIBES:  THIS COURT'S DEFERENCE TO THE POLITICAL
DEPARTMENTS IN DETERMINING WHETHER INDIANS ARE RECOGNIZED AS A TRIBE,
WHILE IT REFLECTS FAMILIAR ATTRIBUTES OF POLITICAL QUESTIONS, (FN42)
UNITED STATES V. HOLLIDAY, 3 WALL.  407, 419, ALSO HAS A UNIQUE ELEMENT
IN THAT "THE RELATION OF THE INDIANS TO THE UNITED STATES IS MARKED BY
PECULIAR AND CARDINAL DISTINCTIONS WHICH EXIST NO WHERE ELSE  ...  .
THE INDIANS ARE DOMESTIC DEPENDENT NATIONS  ...  IN A STATE OF
PUPILAGE.  THEIR RELATION TO THE UNITED STATES RESEMBLES THAT OF A WARD
TO HIS GUARDIAN."  THE CHEROKEE NATION V. GEORGIA, 5 PET. 1, 16, 17. 
(FN43)  YET, HERE TOO, THERE IS NO BLANKET RULE.  WHILE "'IT IS FOR
(CONGRESS)  ...  , AND NOT FOR THE COURTS, TO DETERMINE WHEN THE TRUE
INTERESTS OF THE INDIAN REQUIRE HIS RELEASE FROM THE CONDITION OF
TUTELAGE'  ...  , IT IS NOT MEANT BY THIS THAT CONGRESS MAY BRING A
COMMUNITY OR BODY OF PEOPLE WITHIN THE RANGE OF THIS POWER BY
ARBITRARILY CALLING THEM AN INDIAN TRIBE  ...  ."  UNITED STATES V.
SANDOVAL, 231 U.S. 28, 46.  ABLE TO DISCERN WHAT IS "DISTINCTLY
INDIAN," IBID., THE COURTS WILL STRIKE DOWN ANY HEEDLESS EXTENSION OF
THAT LABEL.  THEY WILL NOT STAND IMPOTENT BEFORE AN OBVIOUS INSTANCE OF
A MANIFESTLY UNAUTHORIZED EXERCISE OF POWER. 

IT IS APPARENT THAT SEVERAL FORMULATIONS WHICH VARY SLIGHTLY
ACCORDING TO THE SETTINGS IN WHICH THE QUESTIONS ARISE MAY DESCRIBE A
POLITICAL QUESTION, ALTHOUGH EACH HAS ONE OR MORE ELEMENTS WHICH
IDENTIFY IT AS ESSENTIALLY A FUNCTION OF THE SEPARATION OF POWERS. 
PROMINENT ON THE SURFACE OF ANY CASE HELD TO INVOLVE A POLITICAL
QUESTION IS FOUND A TEXTUALLY DEMONSTRABLE CONSTITUTIONAL COMMITMENT OF
THE ISSUE TO A COORDINATE POLITICAL DEPARTMENT; OR A LACK OF JUDICIALLY
DISCOVERABLE AND MANAGEABLE STANDARDS FOR RESOLVING IT; OR THE
IMPOSSIBILITY OF DECIDING WITHOUT AN INITIAL POLICY DETERMINATION OF A
KIND CLEARLY FOR NONJUDICIAL DISCRETION; OR THE IMPOSSIBILITY OF A
COURT'S UNDERTAKING INDEPENDENT RESOLUTION WITHOUT EXPRESSING LACK OF
THE RESPECT DUE COORDINATE BRANCHES OF GOVERNMENT; OR AN UNUSUAL NEED
FOR UNQUESTIONING ADHERENCE TO A POLITICAL DECISION ALREADY MADE; OR
THE POTENTIALITY OF EMBARRASSMENT FROM MULTIFARIOUS PRONOUNCEMENTS BY
VARIOUS DEPARTMENTS ON ONE QUESTION. 

UNLESS ONE OF THESE FORMULATIONS IS INEXTRICABLE FROM THE CASE AT
BAR, THERE SHOULD BE NO DISMISSAL FOR NONJUSTICIABILITY ON THE GROUND
OF A POLITICAL QUESTION'S PRESENCE.  THE DOCTRINE OF WHICH WE TREAT IS
ONE OF "POLITICAL QUESTIONS," NOT ONE OF "POLITICAL CASES."  THE COURTS
CANNOT REJECT AS "NO LAW SUIT" A BONA FIDE CONTROVERSY AS TO WHETHER
SOME ACTION DENOMINATED "POLITICAL" EXCEEDS CONSTITUTIONAL AUTHORITY. 
THE CASES WE HAVE REVIEWED SHOW THE NECESSITY FOR DISCRIMINATING
INQUIRY INTO THE PRECISE FACTS AND POSTURE OF THE PARTICULAR CASE, AND
THE IMPOSSIBILITY OF RESOLUTION BY ANY SEMANTIC CATALOGUING. 

BUT IT IS ARGUED THAT THIS CASE SHARES THE CHARACTERISTICS OF
DECISIONS THAT CONSTITUTE A CATEGORY NOT YET CONSIDERED, CASES
CONCERNING THE CONSTITUTION'S GUARANTY, IN ART. IV, SEC. 4, OF A
REPUBLICAN FORM OF GOVERNMENT.  A CONCLUSION AS TO WHETHER THE CASE AT
BAR DOES PRESENT A POLITICAL QUESTION CANNOT BE CONFIDENTLY REACHED
UNTIL WE HAVE CONSIDERED THOSE CASES WITH SPECIAL CARE.  WE SHALL
DISCOVER THAT GUARANTY CLAUSE CLAIMS INVOLVE THOSE ELEMENTS WHICH
DEFINE A "POLITICAL QUESTION," AND FOR THAT REASON AND NO OTHER, THEY
ARE NONJUSTICIABLE.  IN PARTICULAR, WE SHALL DISCOVER THAT THE
NONJUSTICIABILITY OF SUCH CLAIMS HAS NOTHING TO DO WITH THEIR TOUCHING
UPON MATTERS OF STATE GOVERNMENTAL ORGANIZATION. 

REPUBLICAN FORM OF GOVERNMENT:  LUTHER V. BORDEN, 7 HOW.  1, THOUGH
IN FORM SIMPLY AN ACTION FOR DAMAGES FOR TRESPASS WAS, AS DANIEL
WEBSTER SAID IN OPENING THE ARGUMENT FOR THE DEFENSE, "AN UNUSUAL
CASE."  (FN44)  THE DEFENDANTS, ADMITTING AN OTHERWISE TORTIOUS
BREAKING AND ENTERING, SOUGHT TO JUSTIFY THEIR ACTION ON THE GROUND
THAT THEY WERE AGENTS OF THE ESTABLISHED LAWFUL GOVERNMENT OF RHODE
ISLAND, WHICH STATE WAS THEN UNDER MARTIAL LAW TO DEFEND ITSELF FROM
ACTIVE INSURRECTION; THAT THE PLAINTIFF WAS ENGAGED IN THAT
INSURRECTION; AND THAT THEY ENTERED UNDER ORDERS TO ARREST THE
PLAINTIFF.  THE CASE AROSE "OUT OF THE UNFORTUNATE POLITICAL
DIFFERENCES WHICH AGITATED THE PEOPLE OF RHODE ISLAND IN 1841 AND
1842," 7 HOW., AT 34, AND WHICH HAD RESULTED IN A SITUATION WHEREIN TWO
GROUPS LAID COMPETING CLAIMS TO RECOGNITION AS THE LAWFUL GOVERNMENT. 
(FN45) THE PLAINTIFF'S RIGHT TO RECOVER DEPENDED UPON WHICH OF THE TWO
GROUPS WAS ENTITLED TO SUCH RECOGNITION; BUT THE LOWER COURT'S REFUSAL
TO RECEIVE EVIDENCE OR HEAR ARGUMENT ON THAT ISSUE, ITS CHARGE TO THE
JURY THAT THE EARLIER ESTABLISHED OR "CHARTER" GOVERNMENT WAS LAWFUL,
AND THE VERDICT FOR THE DEFENDANTS, WERE AFFIRMED UPON APPEAL TO THIS
COURT. 

CHIEF JUSTICE TANEY'S OPINION FOR THE COURT REASONED AS FOLLOWS:  (1)
IF A COURT WERE TO HOLD THE DEFENDANTS' ACTS UNJUSTIFIED BECAUSE THE
CHARTER GOVERNMENT HAD NO LEGAL EXISTENCE DURING THE PERIOD IN
QUESTION, IT WOULD FOLLOW THAT ALL OF THAT GOVERNMENT'S ACTIONS - LAWS
ENACTED, TAXES COLLECTED, SALARIES PAID, ACCOUNTS SETTLED, SENTENCES
PASSED - WERE OF NO EFFECT; AND THAT "THE OFFICERS WHO CARRIED THEIR
DECISIONS INTO OPERATION (WERE) ANSWERABLE AS TRESPASSERS, IF NOT IN
SOME CASES AS CRIMINALS."  (FN46)  THERE WAS, OF COURSE, NO ROOM FOR
APPLICATION OF ANY DOCTRINE OF DE FACTO STATUS TO UPHOLD PRIOR ACTS OF
AN OFFICER NOT AUTHORIZED DE JURE, FOR SUCH WOULD HAVE DEFEATED THE
PLAINTIFF'S VERY ACTION.  A DECISION FOR THE PLAINTIFF WOULD INEVITABLY
HAVE PRODUCED SOME SIGNIFICANT MEASURE OF CHAOS, A CONSEQUENCE TO BE
AVOIDED IF IT COULD BE DONE WITHOUT ABNEGATION OF THE JUDICIAL DUTY TO
UPHOLD THE CONSTITUTION.    (2)  NO STATE COURT HAD RECOGNIZED AS A
JUDICIAL RESPONSIBILITY SETTLEMENT OF THE ISSUE OF THE LOCUS OF STATE
GOVERNMENTAL AUTHORITY.  INDEED, THE COURTS OF RHODE ISLAND HAD IN
SEVERAL CASES HELD THAT "IT RESTED WITH THE POLITICAL POWER TO DECIDE
WHETHER THE CHARTER GOVERNMENT HAD BEEN DISPLACED OR NOT," AND THAT
THAT DEPARTMENT HAD ACKNOWLEDGED NO CHANGE.    (3)  SINCE "THE QUESTION
RELATES, ALTOGETHER, TO THE CONSTITUTION AND LAWS OF (THE)  ...
STATE," THE COURTS OF THE UNITED STATES HAD TO FOLLOW THE STATE COURTS'
DECISIONS UNLESS THERE WAS A FEDERAL CONSTITUTIONAL GROUND FOR
OVERTURNING THEM.  (FN47) 

(4)  NO PROVISION OF THE CONSTITUTION COULD BE OR HAD BEEN INVOKED
FOR THIS PURPOSE EXCEPT ART. IV, SEC. 4, THE GUARANTY CLAUSE.  HAVING
ALREADY NOTED THE ABSENCE OF STANDARDS WHEREBY THE CHOICE BETWEEN
GOVERNMENTS COULD BE MADE BY A COURT ACTING INDEPENDENTLY, CHIEF
JUSTICE TANEY NOW FOUND FURTHER TEXTUAL AND PRACTICAL REASONS FOR
CONCLUDING THAT, IF ANY DEPARTMENT OF THE UNIED STATES WAS EMPOWERED BY
THE GUARANTY CLAUSE TO RESOLVE THE ISSUE, IT WAS NOT THE JUDICIARY: 

"UNDER THIS ARTICLE OF THE CONSTITUTION IT RESTS WITH CONGRESS TO
DECIDE WHAT GOVERNMENT IS THE ESTABLISHED ONE IN A STATE.  FOR AS THE
UNITED STATES GUARANTEE TO EACH STATE A REPUBLICAN GOVERNMENT, CONGRESS
MUST NECESSARILY DECIDE WHAT GOVERNMENT IS ESTABLISHED IN THE STATE
BEFORE IT CAN DETERMINE WHETHER IT IS REPUBLICAN OR NOT.  AND WHEN THE
SENATORS AND REPRESENTATIVES OF A STATE ARE ADMITTED INTO THE COUNCILS
OF THE UNION, THE AUTHORITY OF THE GOVERNMENT UNDER WHICH THEY ARE
APPOINTED, AS WELL AS ITS REPUBLICAN CHARACTER, IS RECOGNIZED BY THE
PROPER CONSTITUTIONAL AUTHORITY.  AND ITS DECISION IS BINDING ON EVERY
OTHER DEPARTMENT OF THE GOVERNMENT, AND COULD NOT BE QUESTIONED IN A
JUDICIAL TRIBUNAL.  IT IS TRUE THAT THE CONTEST IN THIS CASE DID NOT
LAST LONG ENOUGH TO BRING THE MATTER TO THIS ISSUE; AND  ...  CONGRESS
WAS NOT CALLED UPON TO DECIDE THE CONTROVERSY.  YET THE RIGHT TO DECIDE
IS PLACED THERE, AND NOT IN THE COURTS. 

"SO, TOO, AS RELATES TO THE CLAUSE IN THE ABOVE-MENTIONED ARTICLE OF
THE CONSTITUTION, PROVIDING FOR CASES OF DOMESTIC VIOLENCE.  IT RESTED
WITH CONGRESS, TOO, TO DETERMINE UPON THE MEANS PROPER TO BE ADOPTED TO
FULFILL THIS GUARANTEE  ...  .  BY THE ACT OF FEBRUARY 28, 1795,
(CONGRESS) PROVIDED, THAT, 'IN CASE OF AN INSURRECTION IN ANY STATE
AGAINST THE GOVERNMENT THEREOF, IT SHALL BE LAWFUL FOR THE PRESIDENT OF
THE UNITED STATES, ON APPLICATION OF THE LEGISLATURE OF SUCH STATE OR
OF THE EXECUTIVE (WHEN THE LEGISLATURE CANNOT BE CONVENED), TO CALL
FORTH SUCH NUMBER OF THE MILITIA OF ANY OTHER STATE OR STATES, AS MAY
BE APPLIED FOR, AS HE MAY JUDGE SUFFICIENT TO SUPPRESS SUCH
INSURRECTION.' 

"BY THIS ACT, THE POWER OF DECIDING WHETHER THE EXIGENCY HAD ARISEN
UPON WHICH THE GOVERNMENT OF THE UNITED STATES IS BOUND TO INTERFERE,
IS GIVEN TO THE PRESIDENT  ...  . 

"AFTER THE PRESIDENT HAS ACTED AND CALLED OUT THE MILITIA, IS A
CIRCUIT COURT OF THE UNITED STATES AUTHORIZED TO INQUIRE WHETHER HIS
DECISION WAS RIGHT?  ...  IF THE JUDICIAL POWER EXTENDS SO FAR, THE
GUARANTEE CONTAINED IN THE CONSTITUTION OF THE UNITED STATES IS A
GUARANTEE OF ANARCHY, AND NOT OF ORDER  ...  . 

"IT IS TRUE THAT IN THIS CASE THE MILITIA WERE NOT CALLED OUT BY THE
PRESIDENT.  BUT UPON THE APPLICATION OF THE GOVERNOR UNDER THE CHARTER
GOVERNMENT, THE PRESIDENT RECOGNIZED HIM AS THE EXECUTIVE POWER OF THE
STATE, AND TOOK MEASURES TO CALL OUT THE MILITIA TO SUPPORT HIS
AUTHORITY IF IT SHOULD BE FOUND NECESSARY FOR THE GENERAL GOVERNMENT TO
INTERFERE  ...  .  CERTAINLY NO COURT OF THE UNITED STATES, WITH A
KNOWLEDGE OF THIS DECISION, WOULD HAVE BEEN JUSTIFIED IN RECOGNIZING
THE OPPOSING PARTY AS THE LAWFUL GOVERNMENT  ...  .  IN THE CASE OF
FOREIGN NATIONS, THE GOVERNMENT ACKNOWLEDGED BY THE PRESIDENT IS ALWAYS
RECOGNIZED IN THE COURTS OF JUSTICE  ...  ."  7 HOW., AT 42-44. 

CLEARLY, SEVERAL FACTORS WERE THOUGHT BY THE COURT IN LUTHER TO MAKE
THE QUESTION THERE "POLITICAL":  THE COMMITMENT TO THE OTHER BRANCHES
OF THE DECISION AS TO WHICH IS THE LAWFUL STATE GOVERNMENT; THE
UNAMBIGUOUS ACTION BY THE PRESIDENT, IN RECOGNIZING THE CHARTER
GOVERNMENT AS THE LAWFUL AUTHORITY; THE NEED FOR FINALITY IN THE
EXECUTIVE'S DECISION; AND THE LACK OF CRITERIA BY WHICH A COURT COULD
DETERMINE WHICH FORM OF GOVERNMENT WAS REPUBLICAN.  (FN48) 

BUT THE ONLY SIGNIFICANCE THAT LUTHER COULD HAVE FOR OUR IMMEDIATE
PURPOSES IS IN ITS HOLDING THAT THE GUARANTY CLAUSE IS NOT A REPOSITORY
OF JUDICIALLY MANAGEABLE STANDARDS WHICH A COURT COULD UTILIZE
INDEPENDENTLY IN ORDER TO IDENTIFY A STATE'S LAWFUL GOVERNMENT.  THE
COURT HAS SINCE REFUSED TO RESORT TO THE GUARANTY CLAUSE - WHICH ALONE
HAD BEEN INVOKED FOR THE PURPOSE - AS THE SOURCE OF A CONSTITUTIONAL
STANDARD FOR INVALIDATING STATE ACTION.  SEE TAYLOR & MARSHALL V.
BECKHAM (NO. 1), 178 U.S. 458 (CLAIM THAT KENTUCKY'S RESOLUTION OF
CONTESTED GUBERNATORIAL ELECTION DEPRIVED VOTERS OF REPUBLICAN
GOVERNMENT HELD NONJUSTICIABLE); PACIFIC STATES TEL. CO. V. OREGON, 223
U.S. 118 (CLAIM THAT INITIATIVE AND REFERENDUM NEGATED REPUBLICAN
GOVERNMENT HELD NONJUSTICIABLE); KIERNAN V. PORTLAND, 223 U.S. 151
(CLAIM THAT MUNICIPAL CHARTER AMENDMENT PER MUNICIPAL INITIATIVE AND
REFERENDUM NEGATED REPUBLICAN GOVERNMENT HELD NONJUSTICIABLE); MARSHALL
V. DYE, 231 U.S. 250 (CLAIM THAT INDIANA'S CONSTITUTIONAL AMENDMENT
PROCEDURE NEGATED REPUBLICAN GOVERNMENT HELD NONJUSTICIABLE); O'NEILL
V. LEAMER, 239 U.S. 244 (CLAIM THAT DELEGATION TO COURT OF POWER TO
FORM DRAINAGE DISTRICTS NEGATED REPUBLICAN GOVERNMENT HELD "FUTILE");
OHIO EX REL.  DAVIS V. HILDEBRANT, 241 U.S. 565 (CLAIM THAT
INVALIDATION OF STATE REAPPORTIONMENT STATUTE PER REFERENDUM NEGATES
REPUBLICAN GOVERNMENT HELD NONJUSTICIABLE); (FN49) MOUNTAIN TIMBER CO.
V. WASHINGTON, 243 U.S. 219 (CLAIM THAT WORKMEN'S COMPENSATION VIOLATES
REPUBLICAN GOVERNMENT HELD NONJUSTICIABLE); OHIO EX REL. BRYANT V.
AKRON METROPOLITAN PARK DISTRICT, 281 U.S. 74 (CLAIM THAT RULE
REQUIRING INVALIDATION OF STATUTE BY ALL BUT ONE JUSTICE OF STATE COURT
NEGATED REPUBLICAN GOVERNMENT HELD NONJUSTICIABLE); HIGHLAND FARMS
DAIRY V. AGNEW, 300 U.S. 608 (CLAIM THAT DELEGATION TO AGENCY OF POWER
TO CONTROL MILK PRICES VIOLATED REPUBLICAN GOVERNMENT, REJECTED). 

JUST AS THE COURT HAS CONSISTENTLY HELD THAT A CHALLENGE TO STATE
ACTION BASED ON THE GUARANTY CLAUSE PRESENTS NO JUSTICIABLE QUESTION SO
HAS IT HELD, AND FOR THE SAME REASONS, THAT CHALLENGES TO CONGRESSIONAL
ACTION ON THE GROUND OF INCONSISTENCY WITH THAT CLAUSE PRESENT NO
JUSTICIABLE QUESTION.  IN GEORGIA V. STANTON, 6 WALL.  50, THE STATE
SOUGHT BY AN ORIGINAL BILL TO ENJOIN EXECUTION OF THE RECONSTRUCTION
ACTS, CLAIMING THAT IT ALREADY POSSESSED "A REPUBLICAN STATE, IN EVERY
POLITICAL, LEGAL, CONSTITUTIONAL, AND JURIDICAL SENSE," AND THAT
ENFORCEMENT OF THE NEW ACTS "INSTEAD OF KEEPING THE GUARANTY AGAINST A
FORCIBLE OVERTHROW OF ITS GOVERNMENT BY FOREIGN INVADERS OR DOMESTIC
INSURGENTS,  ...  IS DESTROYING THAT VERY GOVERNMENT BY FORCE."  (FN50)
CONGRESS HAD CLEARLY REFUSED TO RECOGNIZE THE REPUBLICAN CHARACTER OF
THE GOVERNMENT OF THE SUING STATE.  (FN51) IT SEEMED TO THE COURT THAT
THE ONLY CONSTITUTIONAL CLAIM THAT COULD BE PRESENTED WAS UNDER THE
GUARANTY CLAUSE, AND CONGRESS HAVING DETERMINED THAT THE EFFECTS OF THE
RECENT HOSTILITIES REQUIRED EXTRAORDINARY MEASURES TO RESTORE
GOVERNMENTS OF A REPUBLICAN FORM, THIS COURT REFUSED TO INTERFERE WITH
CONGRESS' ACTION AT THE BEHEST OF A CLAIMANT RELYING ON THAT VERY
GUARANTY.  (FN52) 

IN ONLY A FEW OTHER CASES HAS THE COURT CONSIDERED ART. IV, SEC. 4,
IN RELATION TO CONGRESSIONAL ACTION.  IT HAS REFUSED TO PASS ON A CLAIM
RELYING ON THE GUARANTY CLAUSE TO ESTABLISH THAT CONGRESS LACKED POWER
TO ALLOW THE STATES TO EMPLOY THE REFERENDUM IN PASSING ON LEGISLATION
REDISTRICTING FOR CONGRESSIONAL SEATS.  OHIO EX REL. DAVIS V.
HILDEBRANT, SUPRA.  AND IT HAS POINTED OUT THAT CONGRESS IS NOT
REQUIRED TO ESTABLISH REPUBLICAN GOVERNMENT IN THE TERRITORIES BEFORE
THEY BECOME STATES, AND BEFORE THEY HAVE ATTAINED A SUFFICIENT
POPULATION TO WARRANT A POPULARLY ELECTED LEGISLATURE.  DOWNES V.
BIDWELL, 182 U.S. 244, 278-279 (DICTUM).  (FN53) 

WE COME, FINALLY, TO THE ULTIMATE INQUIRY WHETHER OUR PRECEDENTS AS
TO WHAT CONSTITUTES A NONJUSTICIABLE "POLITICAL QUESTION" BRING THE
CASE BEFORE US UNDER THE UMBRELLA OF THAT DOCTRINE.  A NATURAL
BEGINNING IS TO NOTE WHETHER ANY OF THE COMMON CHARACTERISTICS WHICH WE
HAVE BEEN ABLE TO IDENTIFY AND LABEL DESCRIPTIVELY ARE PRESENT.  WE
FIND NONE:  THE QUESTION HERE IS THE CONSISTENCY OF STATE ACTION WITH
THE FEDERAL CONSTITUTION.  WE HAVE NO QUESTION DECIDED, OR TO BE
DECIDED, BY A POLITICAL BRANCH OF GOVERNMENT COEQUAL WITH THIS COURT. 
NOR DO WE RISK EMBARRASSMENT OF OUR GOVERNMENT ABROAD, OR GRAVE
DISTURBANCE AT HOME (FN54) IF WE TAKE ISSUE WITH TENNESSEE AS TO THE
CONSTITUTIONALITY OF HER ACTION HERE CHALLENGED.  NOR NEED THE
APPELLANTS, IN ORDER TO SUCCEES IN THIS ACTION, ASK THE COURT TO ENTER
UPON POLICY DETERMINATIONS FOR WHICH JUDICIALLY MANAGEABLE STANDARDS
ARE LACKING.  JUDICIAL STANDARDS UNDER THE EQUAL PROTECTION CLAUSE ARE
WELL DEVELOPED AND FAMILIAR, AND IT HAS BEEN OPEN TO COURTS SINCE THE
ENACTMENT OF THE FOURTEENTH AMENDMENT TO DETERMINE, IF ON THE
PARTICULAR FACTS THEY MUST, THAT A DISCRIMINATION REFLECTS NO POLICY,
BUT SIMPLY ARBITRARY AND CAPRICIOUS ACTION. 

THIS CASE DOES, IN ONE SENSE, INVOLVE THE ALLOCATION OF POLITICAL
POWER WITHIN A STATE, AND THE APPELLANTS MIGHT CONCEIVABLY HAVE ADDED A
CLAIM UNDER THE GUARANTY CLAUSE.  OF COURSE, AS WE HAVE SEEN, ANY
RELIANCE ON THAT CLAUSE WOULD BE FUTILE.  BUT BECAUSE ANY RELIANCE ON
THE GUARANTY CLAUSE COULD NOT HAVE SUCCEEDED IT DOES NOT FOLLOW THAT
APPELLANTS MAY NOT BE HEARD ON THE EQUAL PROTECTION CLAIM WHICH IN FACT
THEY TENDER.  TRUE, IT MUST BE CLEAR THAT THE FOURTEENTH AMENDMENT
CLAIM IS NOT SO ENMESHED WITH THOSE POLITICAL QUESTION ELEMENTS WHICH
RENDER GUARANTY CLAUSE CLAIMS NONJUSTICIABLE AS ACTUALLY TO PRESENT A
POLITICAL QUESTION ITSELF.  BUT WE HAVE FOUND THAT NOT TO BE THE CASE
HERE. 

IN THIS CONNECTION SPECIAL ATTENTION IS DUE PACIFIC STATES TEL. CO.
V. OREGON, 223 U.S. 118.  IN THAT CASE A CORPORATION TAX STATUTE
ENACTED BY THE INITIATIVE WAS ATTACKED OSTENSIBLY ON THREE GROUNDS:
(1) DUE PROCESS; (2) EQUAL PROTECTION; AND (3) THE GUARANTY CLAUSE. 
BUT IT WAS CLEAR THAT THE FIRST TWO GROUNDS WERE INVOKED SOLELY IN AID
OF THE CONTENTION THAT THE TAX WAS INVALID BY REASON OF ITS PASSAGE: 

"THE DEFENDANT COMPANY DOES NOT CONTEND HERE THAT IT COULD NOT HAVE
BEEN REQUIRED TO PAY A LICENSE TAX.  IT DOES NOT ASSERT THAT IT WAS
DENIED AN OPPORTUNITY TO BE HEARD AS TO THE AMOUNT FOR WHICH IT WAS
TAXED, OR THAT THERE WAS ANYTHING INHERING IN THE TAX OR INVOLVED
INTRINSICALLY IN THE LAW WHICH VIOLATED ANY OF ITS CONSTITUTIONAL
RIGHTS.  IF SUCH QUESTIONS HAD BEEN RAISED THEY WOULD HAVE BEEN
JUSTICIABLE, AND THEREFORE WOULD HAVE REQUIRED THE CALLING INTO
OPERATION OF JUDICIAL POWER.  INSTEAD, HOWEVER, OF DOING ANY OF THESE
THINGS, THE ATTACK ON THE STATUTE HERE MADE IS OF A WHOLLY DIFFERENT
CHARACTER.  ITS ESSENTIALLY POLITICAL NATURE IS AT ONCE MADE MANIFEST
BY UNDERSTANDING THAT THE ASSAULT WHICH THE CONTENTION HERE ADVANCED
MAKES IT NOT ON THE TAX AS A TAX, BUT ON THE STATE AS A STATE.  IT IS
ADDRESSED TO THE FRAMEWORK AND POLITICAL CHARACTER OF THE GOVERNMENT BY
WHICH THE STATUTE LEVYING THE TAX WAS PASSED.  IT IS THE GOVERNMENT,
THE POLITICAL ENTITY, WHICH (REDUCING THE CASE TO ITS ESSENCE) IS
CALLED TO THE BAR OF THIS COURT, NOT FOR THE PURPOSE OF TESTING
JUDICIALLY SOME EXERCISE OF POWER ASSAILED, ON THE GROUND THAT ITS
EXERTION HAS INJURIOUSLY AFFECTED THE RIGHTS OF AN INDIVIDUAL BECAUSE
OF REPUGNANCY TO SOME CONSTITUTIONAL LIMITATION, BUT TO DEMAND OF THE
STATE THAT IT ESTABLISH ITS RIGHT TO EXIST AS A STATE, REPUBLICAN IN
FORM."  223 U.S., AT 150-151. 

THE DUE PROCESS AND EQUAL PROTECTION CLAIMS WERE HELD NONJUSTICIABLE
IN PACIFIC STATES NOT BECAUSE THEY HAPPENED TO BE JOINED WITH A
GUARANTY CLAUSE CLAIM, OR BECAUSE THEY SOUGHT TO PLACE BEFORE THE COURT
A SUBJECT MATTER WHICH MIGHT CONCEIVABLY HAVE BEEN DEALT WITH THROUGH
THE GUARANTY CLAUSE, BUT BECAUSE THE COURT BELIEVED THAT THEY WERE
INVOKED MERELY IN VERBAL AID OF THE RESOLUTION OF ISSUES WHICH, IN ITS
VIEW, ENTAILED POLITICAL QUESTIONS.  PACIFIC STATES MAY BE COMPARED
WITH CASES SUCH AS MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S. 219,
WHEREIN THE COURT REFUSED TO CONSIDER WHETHER A WORKMEN'S COMPENSATION
ACT VIOLATED THE GUARANTY CLAUSE BUT CONSIDERED AT LENGTH, AND
REJECTED, DUE PROCESS AND EQUAL PROTECTION ARGUMENTS ADVANCED AGAINST
IT; AND O'NEILL V. LEAMER, 239 U.S. 244, WHEREIN THE COURT REFUSED TO
CONSIDER WHETHER NEBRASKA'S DELEGATION OF POWER TO FORM DRAINAGE
DISTRICTS VIOLATED THE GUARANTY CLAUSE, BUT WENT ON TO CONSIDER AND
REJECT THE CONTENTION THAT THE ACTION AGAINST WHICH AN INJUNCTION WAS
SOUGHT WAS NOT A TAKING FOR A PUBLIC PURPOSE. 

WE CONCLUDE THEN THAT THE NONJUSTICIABILITY OF CLAIMS RESTING ON THE
GUARANTY CLAUSE WHICH ARISES FROM THEIR EMBODIMENT OF QUESTIONS THAT
WERE THOUGHT "POLITICAL," CAN HAVE NO BEARING UPON THE JUSTICIABILITY
OF THE EQUAL PROTECTION CLAIM PRESENTED IN THIS CASE.  FINALLY, WE
EMPHASIZE THAT IT IS THE INVOLVEMENT IN GUARANTY CLAUSE CLAIMS OF THE
ELEMENTS THOUGHT TO DEFINE "POLITICAL QUESTIONS," AND NO OTHER FEATURE,
WHICH COULD RENDER THEM NONJUSTICIABLE.  SPECIFICALLY, WE HAVE SAID
THAT SUCH CLAIMS ARE NOT HELD NONJUSTICIABLE BECAUSE THEY TOUCH MATTERS
OF STATE GOVERNMENTAL ORGANIZATION.  BRIEF EXAMINATION OF A FEW CASES
DEMONSTRATES THIS.   WHEN CHALLENGES TO STATE ACTION RESPECTING MATTERS
OF "THE ADMINISTRATION OF THE AFFAIRS OF THE STATE AND THE OFFICERS
THROUGH WHOM THEY ARE CONDUCTED" (FN55) HAVE RESTED ON CLAIMS OF
CONSTITUTIONAL DEPRIVATION WHICH ARE AMENABLE TO JUDICIAL CORRECTION,
THIS COURT HAS ACTED UPON ITS VIEW OF THE MERITS OF THE CLAIM.  FOR
EXAMPLE, IN BOYD V. NEBRASKA EX REL. THAYER, 143 U.S. 135, WE REVERSED
THE NEBRASKA SUPREME COURT'S DECISION THAT NEBRASKA' GOVERNOR WAS NOT A
CITIZEN OF THE UNITED STATES OR OF THE STATE AND THEREFORE COULD NOT
CONTINUE IN OFFICE.  IN KENNARD V. LOUISIANA EX REL. MORGAN, 92 U.S.
480, AND FOSTER V. KANSAS EX REL. JOHNSTON, 112 U.S. 201, WE CONSIDERED
WHETHER PERSONS HAD BEEN REMOVED FROM PUBLIC OFFICE BY PROCEDURES
CONSISTENT WITH THE FOURTEENTH AMENDMENT'S DUE PROCESS GUARANTY, AND
HELD ON THE MERITS THAT THEY HAD.  AND ONLY LAST TERM, IN GOMILLION V.
LIGHTFOOT, 364 U.S. 339, WE APPLIED THE FIFTEENTH AMENDEMNT TO STRIKE
DOWN A REDRAFTING OF MUNICIPAL BOUNDARIES WHICH EFFECTED A
DISCRIMINATORY IMPAIRMENT OF VOTING RIGHTS, IN THE FACE OF WHAT A
MAJORITY OF THE COURT OF APPEALS THOUGHT TO BE A SWEEPING COMMITMENT TO
STATE LEGISLATURES OF THE POWER TO DRAW AND REDRAW SUCH BOUNDARIES. 
(FN56) 

GOMILLION WAS BROUGHT BY A NEGRO WHO HAD BEEN A RESIDENT OF THE CITY
OF TUSKEGEE, ALABAMA, UNTIL THE MUNICIPAL BOUNDARIES WERE SO RECAST BY
THE STATE LEGISLATURE AS TO EXCLUDE PRACTICALLY ALL NEGROES.  THE
PLAINTIFF CLAIMED DEPRIVATION OF THE RIGHT TO VOTE IN MUNICIPAL
ELECTIONS.  THE DISTRICT COURT'S DISMISSAL FOR WANT OF JURISDICTION AND
FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED WAS
AFFIRMED BY THE COURT OF APPEALS.  THIS COURT UNANIMOUSLY REVERSED. 
THIS COURT'S ANSWER TO THE ARGUMENT THAT STATES ENJOYED UNRESTRICTED
CONTROL OVER MUNICIPAL BOUNDARIES WAS: 

"LEGISLATIVE CONTROL OF MUNICIPALITIES, NO LESS THAN OTHER STATE
POWER, LIES WITHIN THE SCOPE OF RELEVANT LIMITATIONS IMPOSED BY THE
UNITED STATES CONSTITUTION.  ...  THE OPPOSITE CONCLUSION, URGED UPON
US BY RESPONDENTS, WOULD SANCTION THE ACHIEVEMENT BY A STATE OF ANY
IMPAIRMENT OF VOTING RIGHTS WHATEVER SO LONG AS IT WAS CLOAKED IN THE
GARB OF THE REALIGNMENT OF POLITICAL SUBDIVISIONS.  'IT IS
INCONCEIVABLE THAT GUARANTIES EMBEDDED IN THE CONSTITUTION OF THE
UNITED STATES MAY THUS BE MANIPULATED OUT OF EXISTENCE.'"  364 U.S., AT
344-345. 

TO A SECOND ARGUMENT, THAT COLEGROVE V. GREEN, SUPRA, WAS A BARRIER
TO HEARING THE MERITS OF THE CASE, THE COURT RESPONDED THAT GOMILLION
WAS LIFTED "OUT OF THE SO-CALLED 'POLITICAL' ARENA AND INTO THE
CONVENTIONAL SPHERE OF CONSTITUTIONAL LITIGATION" BECAUSE HERE WAS
DISCRIMINATORY TREATMENT OF A RACIAL MINORITY VIOLATING THE FIFTEENTH
AMENDMENT. 

"A STATUTE WHICH IS ALLEGED TO HAVE WORKED UNCONSTITUTIONAL
DEPRIVATIONS OF PETITIONERS' RIGHTS IS NOT IMMUNE TO ATTACK SIMPLY
BECAUSE THE MECHANISM EMPLOYED BY THE LEGISLATURE IS A REDEFINITION OF
MUNICIPAL BOUNDARIES  ...  .  WHILE IN FORM THIS IS MERELY AN ACT
REDEFINING METES AND BOUNDS, IF THE ALLEGATIONS ARE ESTABLISHED, THE
INESCAPABLE HUMAN EFFECT OF THIS ESSAY IN GEOMETRY AND GEOGRAPHY IS TO
DESPOIL COLORED CITIZENS, AND ONLY COLORED CITIZENS, OF THEIR
THERETOFORE ENJOYED VOTING RIGHTS.  THAT WAS NOT COLEGROVE V. GREEN. 

"WHEN A STATE EXERCISES POWER WHOLLY WITHIN THE DOMAIN OF STATE
INTEREST, IT IS INSULATED FROM FEDERAL JUDICIAL REVIEW.  BUT SUCH
INSULATION IS NOT CARRIED OVER WHEN STATE POWER IS USED AS AN
INSTRUMENT FOR CIRCUMVENTING A FEDERALLY PROTECTED RIGHT."  364 U.S.,
AT 347.  (FN57) 

WE HAVE NOT OVERLOOKED SUCH CASES AS IN RE SAWYER, 124 U.S. 200, AND
WALTON V. HOUSE OF REPRESENTATIVES, 265 U.S. 487, WHICH HELD THAT
FEDERAL EQUITY POWER COULD NOT BE EXERCISED TO ENJOIN A STATE
PROCEEDING TO REMOVE A PUBLIC OFFICER.  BUT THESE DECISIONS EXPLICITLY
REFLECT ONLY A TRADITIONAL LIMIT UPON EQUITY JURISDICTION, AND NOT UPON
FEDERAL COURTS' POWER TO INQUIRE INTO MATTERS OF STATE GOVERNMENTAL
ORGANIZATION.  THIS IS CLEAR NOT ONLY FROM THE OPINIONS IN THOSE CASES,
BUT ALSO FROM WHITE V. BERRY, 171 U.S. 366, WHICH, RELYING ON SAWYER,
WITHHELD FEDERAL EQUITY FROM STAYING REMOVAL OF A FEDERAL OFFICER. 
WILSON V. NORTH CAROLINA, 169 U.S. 586, SIMPLY DISMISSED AN APPEAL FROM
AN UNSUCCESSFUL SUIT TO UPSET A STATE'S REMOVAL PROCEDURE, ON THE
GROUND THAT THE CONSTITUTIONAL CLAIM PRESENTED - THAT A JURY TRIAL WAS
NECESSARY IF THE REMOVAL PROCEDURE WAS TO COMPORT WITH DUE PROCESS
REQUIREMENTS - WAS FRIVOLOUS.  FINALLY, IN TAYLOR AND MARSHALL V.
BECKHAM (NO. 1), 178 U.S. 548, WHERE LOSING CANDIDATES ATTACKED THE
CONSTITUTIONALITY OF KENTUCKY'S RESOLUTIION OF A CONTESTED
GUBERNATORIAL ELECTION, THE COURT REFUSED TO CONSIDER THE MERITS OF A
CLAIM POSITED UPON THE GUARANTY CLAUSE, HOLDING IT PRESENTED A
POLITICAL QUESTION, BUT ALSO HELD ON THE MERITS THAT THE OUSTED
CANDIDATES HAD SUFFERED NO DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS
OF LAW.  (FN58) 

SINCE, AS HAS BEEN ESTABLISHED, THE EQUAL PROTECTION CLAIM TENDERED
IN THIS CASE DOES NOT REQUIRE DECISION OF ANY POLITICAL QUESTION, AND
SINCE THE PRESENCE OF A MATTER AFFECTING STATE GOVERNMENT DOES NOT
RENDER THE CASE NONJUSTICIABLE, IT SEEMS APPROPRIATE TO EXAMINE AGAIN
THE REASONING BY WHICH THE DISTRICT COURT REACHED ITS CONCLUSION THAT
THE CASE WAS NONJUSTICIABLE. 

WE HAVE ALREADY NOTED THAT THE DISTRICT COURT'S HOLDING THAT THE
SUBJECT MATTER OF THIS COMPLAINT WAS NONJUSTICIABLE RELIED UPON
COLEGROVE V. GREEN, SUPRA, AND LATER CASES.  SOME OF THOSE CONCERNED
THE CHOICE OF MEMBERS OF A STATE LEGISLATURE, AS IN THIS CASE; OTHERS,
LIKE COLEGROVE ITSELF AND EARLIER PRECEDENTS, SMILEY V. HOLM, 285 U.S.
355, KOENIG V. FLYNN, 285 U.S. 375, AND CARROLL V. BECKER, 285 U.S.
380, CONCERNED THE CHOICE OF REPRESENTATIVES IN THE FEDERAL CONGRESS. 
SMILEY, KOENIG AND CARROLL SETTLED THE ISSUE IN FAVOR OF JUSTICIABILITY
OF QUESTIONS OF CONGRESSIONAL REDISTRICTING.  THE COURT FOLLOWED THESE
PRECEDENTS IN COLEGROVE ALTHOUGH OVER THE DISSENT OF THREE OF THE SEVEN
JUSTICES WHO PARTICIPATED IN THAT DECISION.  ON THE ISSUE OF
JUSTICIABILITY, ALL FOUR JUSTICES COMPRISING A MAJORITY RELIED UPON
SMILEY V. HOLM, BUT IN TWO OPINIONS, ONE FOR THREE JUSTICES, 328 U. S.,
AT 566, 568, AND A SEPARATE ONE BY MR. JUSTICE RUTLEDGE, 328 U.S., AT
564.  THE ARGUMENT THAT CONGRESSIONAL REDISTRICTING PROBLEMS PRESENTED
A "POLITICAL QUESTION" THE RESOLUTION OF WHICH WAS CONFIDED TO CONGRESS
MIGHT HAVE BEEN RESTED UPON ART. I, SEC. 4, ART. I, SEC. 5, ART. I,
SEC. 2, AND AMENDMENT XIV, SEC. 2.  MR. JUSTICE RUTLEDGE SAID:  "BUT
FOR THE RULING IN SMILEY V. HOLM, 285 U.S. 355, I SHOULD HAVE SUPPOSED
THAT THE PROVISIONS OF THE CONSTITUTION, ART. I, SEC. 4, THAT 'THE
TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR  ...
REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE BY THE LEGISLATURE
THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR ALTER SUCH
REGULATIONS  ...  '; ART. I, SEC. 2 (BUT SEE AMENDMENT XIV, SEC. 2),
VESTING IN CONGRESS THE DUTY OF APPORTIONMENT OF REPRESENTATIVES AMONG
THE SEVERAL STATES 'ACCORDING TO THEIR RESPECTIVE NUMBERS'; AND ART. I,
SEC. 5, MAKING EACH HOUSE THE SOLE JUDGE OF THE QUALIFICATIONS OF ITS
OWN MEMBERS, WOULD REMOVE THE ISSUES IN THIS CASE FROM JUSTICIABLE
COGNIZANCE.  BUT, IN MY JUDGMENT, THE SMILEY CASE RULES SQUARELY TO THE
CONTRARY, SAVE ONLY IN THE MATTER OF DEGREE.  ...  ASSUMING THAT THAT
DECISION IS TO STAND, I THINK  ...  THAT ITS EFFECT IS TO RULE THAT
THIS COURT HAS POWER TO AFFORD RELIEF IN A CASE OF THIS TYPE AS AGAINST
THE OBJECTION THAT THE ISSUES ARE NOT JUSTICIABLE."  328 U.S., AT 564
565.  ACCORDINGLY, MR. JUSTICE RUTLEDGE JOINED IN THE CONCLUSION THAT
THE CASE WAS JUSTICIABLE, ALTHOUGH HE HELD THAT THE DISMISSAL OF THE
COMPLAINT SHOULD BE AFFIRMED.  HIS VIEW WAS THAT "THE SHORTNESS OF THE
TIME REMAINING (BEFORE FORTHCOMING ELECTIONS) MAKES IT DOUBTFUL WHETHER
ACTION COULD, OR WOULD, BE TAKEN IN TIME TO SECURE FOR PETITIONERS THE
EFFECTIVE RELIEF THEY SEEK ...  .  I THINK, THEREFORE, THE CASE IS ONE
IN WHICH THE COURT MAY PROPERLY, AND SHOULD, DECLINE TO EXERCISE ITS
JURISDICTION.  ACCORDINGLY, THE JUDGMENT SHOULD BE AFFIRMED AND I JOIN
IN THAT DISPOSITION OF THE CAUSE."  328 U.S., AT 565-566.  (FN59) 

ARTICLE I, SECS. 2, 4, AND 5, AND AMENDMENT XIV, SEC. 2, RELATE ONLY
TO CONGRESSIONAL ELECTIONS AND OBVIOUSLY DO NOT GOVERN APPORTIONMENT OF
STATE LEGISLATURES.  HOWEVER, OUR DECISIONS IN FAVOR OF JUSTICIABILITY
EVEN IN LIGHT OF THOSE PROVISIONS PLAINLY AFFORD NO SUPPORT FOR THE
DISTRICT COURT'S CONCLUSION THAT THE SUBJECT MATTER OF THIS CONTROVERSY
PRESENTS A POLITICAL QUESTION.  INDEED, THE REFUSAL TO AWARD RELIEF IN
COLEGROVE RESULTED ONLY FROM THE CONTROLLING VIEW OF A WANT OF EQUITY. 
NOR IS ANYTHING CONTRARY TO BE FOUND IN THOSE PER CURIAMS THAT CAME
AFTER COLEGROVE.  THIS COURT DISMISSED THE APPEALS IN COOK V. FORTSON
AND TURMAN V. DUCKWORTH, 329 U.S. 675, AS MOOT.  MACDOUGALL V. GREEN,
335 U.S. 281, HELD ONLY THAT IN THAT CASE EQUITY WOULD NOT ACT TO VOID
THE STATE'S REQUIREMENT THAT THERE BE AT LEAST A MINIMUM OF SUPPORT FOR
NOMINEES FOR STATE-WIDE OFFICE, OVER AT LEAST A MINIMAL AREA OF THE
STATE.  PROBLEMS OF TIMING WERE CRITICAL IN REMMEY V. SMITH, 342 U.S.
916, DISMISSING FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION A THREE
JUDGE COURT'S DISMISSAL OF THE SUIT AS PREMATURELY BROUGHT, 102 F.
SUPP. 708; AND IN HARTSFIELD V. SLOAN, 357 U.S. 916, DENYING MANDAMUS
SOUGHT TO COMPEL THE CONVENING OF A THREE-JUDGE COURT - MOVANTS URGED
THE COURT TO ADVANCE CONSIDERATION OF THEIR CASE, "INASMUCH AS THE MERE
LAPSE OF TIME BEFORE THIS CASE CAN BE REACHED IN THE NORMAL COURSE OF
...  BUSINESS MAY DEFEAT THE CAUSE, AND INASMUCH AS THE TIME PROBLEM IS
DUE TO THE INHERENT NATURE OF THE CASE  ...  ."  SOUTH V. PETERS, 339
U.S. 276, LIKE COLEGROVE APPEARS TO BE A REFUSAL TO EXERCISE EQUITY'S
POWERS; SEE THE STATEMENT OF THE HOLDING, QUOTED, SUPRA, P. 203.  AND
COX V. PETERS, 342 U.S. 936, DISMISSED FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION THE APPEAL FROM THE STATE COURT'S HOLDING THAT THEIR
PRIMARY ELECTIONS IMPLICATED NO "STATE ACTION."  SEE 208 GA. 498, 67
S.E.2D 579.  BUT COMPARE TERRY V. ADAMS, 345 U.S. 461. 

TEDESCO V. BOARD OF SUPERVISORS, 339 U.S. 940, INDICATES SOLELY THAT
NO SUBSTANTIAL FEDERAL QUESTION WAS RAISED BY A STATE COURT'S REFUSAL
TO UPSET THE DISTRICTING OF CITY COUNCIL SEATS, ESPECIALLY AS IT WAS
URGED THAT THERE WAS A RATIONAL JUSTIFICATION FOR THE CHALLENGED
DISTRICTING.  SEE 43 SO. 2D 514.  SIMILARLY, IN ANDERSON V. JORDAN, 343
U.S. 912, IT WAS CERTAIN ONLY THAT THE STATE COURT HAD REFUSED TO ISSUE
A DISCRETIONARY WRIT, ORIGINAL MANDAMUS IN THE SUPREME COURT.  THAT HAD
BEEN DENIED WITHOUT OPINION, AND OF COURSE IT WAS URGED HERE THAT AN
ADEQUATE STATE GROUND BARRED THIS COURT'S REVIEW.  AND IN KIDD V.
MCCANLESS, 200 TENN. 273, 292 S.W.2D 40, THE SUPREME COURT OF TENNESSEE
HELD THAT IT COULD NOT INVALIDATE THE VERY STATUTE AT ISSUE IN THE CASE
AT BAR, BUT ITS HOLDING RESTED ON ITS STATE LAW OF REMEDIES, I.E., THE
STATE VIEW OF DE FACTO OFFICERS, (FN60) AND NOT ON ANY VIEW THAT THE
NORM FOR LEGISLATIVE APPORTIONMENT IN TENNESSEE IS NOT NUMBERS OF
QUALIFIED VOTERS RESIDENT IN THE SEVERAL COUNTIES.  OF COURSE THIS
COURT WAS THERE PRECLUDED BY THE ADEQUATE STATE GROUND, AND IN
DISMISSING THE APPEAL, 352 U.S. 920, WE CITED ANDERSON, SUPRA, AS WELL
AS COLEGROVE.  NOR DOES THE TENNESSEE COURT'S DECISION IN THAT CASE
BEAR UPON THIS, FOR JUST AS IN SMITH V. HOLM, 220 MINN. 486, 19 N.W.2D
914, AND MAGRAW V. DONOVAN, 163 F. SUPP. 184, 177 F. SUPP.  803, A
STATE COURT'S INABILITY TO GRANT RELIEF DOES NOT BAR A FEDERAL COURT'S
ASSUMING JURISDICTION TO INQUIRE INTO ALLEGED DEPRIVATION OF FEDERAL
CONSTITUTIONAL RIGHTS.  PROBLEMS OF RELIEF ALSO CONTROLLED IN RADFORD
V. GARY, 352 U.S. 991, AFFIRMING THE DISTRICT COURT'S REFUSAL TO
MANDAMUS THE GOVERNOR TO CALL A SESSION OF THE LEGISLATURE, TO MANDAMUS
THE LEGISLATURE THEN TO APPORTION, AND IF THEY DID NOT COMPLY, TO
MANDAMUS THE STATE SUPREME COURT TO DO SO.  AND MATTHEWS V. HANDLEY,
361 U.S. 127, AFFIRMED A REFUSAL TO STRIKE DOWN THE STATE'S GROSS
INCOME TAX STATUTE - URGED ON THE GROUND THAT THE LEGISLATURE WAS
MALAPPORTIONED - THAT HAD RESTED ON THE ADEQUACY OF AVAILABLE STATE
LEGAL REMEDIES FOR SUITS INVOLVING THAT TAX, INCLUDING CHALLENGES TO
ITS CONSTITUTIONALITY.  LASTLY, COLEGROVE V. BARRETT, 330 U.S. 804, IN
WHICH MR. JUSTICE RUTLEDGE CONCURRED IN THIS COURT'S REFUSAL TO NOTE
THE APPEAL FROM A DISMISSAL FOR WANT OF EQUITY, IS SUFFICIENTLY
EXPLAINED BY HIS STATEMENT IN COOK V. FORTSON, SUPRA: "THE
DISCRETIONARY EXERCISE OR NONEXERCISE OF EQUITABLE OR DECLARATORY
JUDGMENT JURISDICTION  ...  IN ONE CASE IS NOT PRECEDENT IN ANOTHER
CASE WHERE THE FACTS DIFFER."  329 U.S., AT 678, N. 8.  (CITATIONS
OMITTED.) 

WE CONCLUDE THAT THE COMPLAINT'S ALLEGATIONS OF A DENIAL OF EQUAL
PROTECTION PRESENT A JUSTICIABLE CONSTITUTIONAL CAUSE OF ACTION UPON
WHICH APPELLANTS ARE ENTITLED TO A TRIAL AND A DECISION.  THE RIGHT
ASSERTED IS WITHIN THE REACH OF JUDICIAL PROTECTION UNDER THE
FOURTEENTH AMENDMENT. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  PUBLIC ACTS OF TENNESSEE, C. 122 (1901), NOW TENN. CODE ANN.
SECS. 3-101 TO 3-107.  THE FULL TEXT OF THE 1901 ACT AS AMENDED APPEARS
IN AN APPENDIX TO THIS OPINION, POST, P.237. 

FN2  THE THREE-JUDGE COURT WAS CONVENED PURSUANT TO THE ORDER OF A
SINGLE DISTRICT JUDGE, WHO, AFTER HE HAD REVIEWED CERTAIN DECISIONS OF
THIS COURT AND FOUND THEM DISTINGUISHABLE IN FEATURES "THAT MAY
ULTIMATELY PROVE TO BE SIGNIFICANT," HELD THAT THE COMPLAINT WAS NOT SO
OBVIOUSLY WITHOUT MERIT THAT HE WOULD BE JUSTIFIED IN REFUSING TO
CONVENE A THREE-JUDGE COURT.  175 F. SUPP. 649, 652.    FN3  WE HEARD
ARGUMENT FIRST AT THE 1960 TERM AND AGAIN AT THIS TERM WHEN THE CASE
WAS SET OVER FOR REARGUMENT.  366 U.S. 907. 

FN4  A COUNTY HAVING LESS THAN, BUT AT LEAST TWO-THIRDS OF, THE
POPULATION REQUIRED TO CHOOSE A REPRESENTATIVE IS ALLOCATED ONE
REPRESENTATIVE.  SEE ALSO TENN. CONST., ART. II, SEC. 6.  A COMMON AND
MUCH MORE SUBSTANTIAL DEPARTURE FROM THE NUMBER-OF-VOTERS OR TOTAL
POPULATION STANDARD IS THE GUARANTY OF AT LEAST ONE SEAT TO EACH
COUNTY.  SEE, E.G., KANSAS CONST., ART. 2, SEC. 2; N.J. CONST., ART. 4,
SEC. 3, PARA. 1.    WHILE THE TENNESSEE CONSTITUTION SPEAKS OF THE
NUMBER OF "QUALIFIED VOTERS," THE EXHIBITS ATTACHED TO THE COMPLAINT
USE FIGURES BASED ON THE NUMBER OF PERSONS 21 YEARS OF AGE AND OVER. 
THIS BASIS SEEMS TO HAVE BEEN EMPLOYED BY THE GENERAL ASSEMBLY IN
APPORTIONING LEGISLATIVE SEATS FROM THE OUTSET.  THE 1870 STATUTE
PROVIDING FOR THE FIRST ENUMERATION, ACTS OF 1870 (1ST SESS.), C. 107,
DIRECTED THE COURTS OF THE SEVERAL COUNTIES TO SELECT A COMMISSIONER TO
ENUMERATE "ALL OF THE MALE INHABITANTS OF THEIR RESPECTIVE COUNTIES,
WHO ARE TWENTY-ONE YEARS OF AGE AND UPWARD, WHO SHALL BE RESIDENT
CITIZENS OF THEIR COUNTIES ON THE FIRST DAY OF JANUARY, 1871  ...  ." 
REPORTS COMPILED IN THE SEVERAL COUNTIES ON THIS BASIS WERE SUBMITTED
TO THE GENERAL ASSEMBLY BY THE SECRETARY OF STATE AND WERE USED IN THE
FIRST APPORTIONMENT.  APPENDIX TO TENN. S.J., 1871, 41-43.  YET SUCH
FIGURES WOULD NOT REFLECT THE NUMBERS OF PERSONS QUALIFIED TO EXERCISE
THE FRANCHISE UNDER THE THEN-GOVERNING QUALIFICATIONS:  (A)
CITIZENSHIP.  (B) RESIDENCE IN THE STATE 12 MONTHS, AND IN THE COUNTY 6
MONTHS; (C) PAYMENT OF POLL TAXES FOR THE PRECEDING YEAR UNLESS
ENTITLED TO EXEMPTION.  ACTS OF 1870 (2D SESS.), C. 10.  (THESE
QUALIFICATIONS CONTINUED AT LEAST UNTIL AFTER 1901.  SEE SHAN.  TENN. 
CODE ANN., SECS. 1167, 1220 (1896; SUPP. 1904).)  STILL, WHEN THE
GENERAL ASSEMBLY DIRECTED THE SECRETARY OF STATE TO DO ALL HE COULD TO
OBTAIN COMPLETE REPORTS FROM THE COUNTIES, THE RESOLUTION SPOKE BROADLY
OF "THE IMPOSSIBILITY OF  ...  (REDISTRICTING) WITHOUT THE CENSUS
RETURNS OF THE VOTING POPULATION FROM EACH COUNTY  ...  ."  TENN. S.J.,
1871, 46-47, 96.  THE FIGURES ALSO SHOWED A CORRELATION WITH FEDERAL
CENSUS FIGURES FOR 1870.  THE CENSUS REPORTED 259,016 MALE CITIZENS 21
AND UPWARD IN TENNESSEE.  NINTH CENSUS OF THE UNITED STATES, 1870,
STATISTICS OF THE POPULATION 635 (1872).  THE TENNESSEE SECRETARY OF
STATE'S REPORT, WITH 15 COUNTIES NOT REPORTED, GAVE A FIGURE OF
237,431.  USING THE NUMBERS OF ACTUAL VOTES IN THE LAST GUBERNATORIAL
ELECTION FOR THOSE 15 COUNTIES, THE SECRETARY ARRIVED AT A TOTAL OF
250,025.  APPENDIX TO TENN. S.J., 1871, 41-43.  THIS AND SUBSEQUENT
HISTORY INDICATE CONTINUED REFERENCE TO CENSUS FIGURES AND FINALLY IN
1901, ABANDONMENT OF A STATE ENUMERATION IN FAVOR OF THE USE OF CENSUS
FIGURES.  SEE NOTES 7, 8, 9, INFRA.  SEE ALSO WILLIAMS, LEGISLATIVE
APPORTIONMENT IN TENNESSEE, 20 TENN. L. REV. 235, 236, N. 6.  IT WOULD
THEREFORE APPEAR THAT UNLESS THERE IS A CONTRARY SHOWING AT THE TRIAL,
APPELLANTS' CURRENT FIGURES, TAKEN FROM THE UNITED STATES CENSUS
REPORTS, ARE APPOSITE. 

FN5  ACTS OF 1871 (1ST SESS.), C. 146. 

FN6  ACTS OF 1870 (1ST SESS.), C. 107. 

FN7  THE STATUTE AUTHORIZING THE ENUMERATION WAS ACTS OF 1881 (1ST
SESS.), C. 124.  THE ENUMERATION COMMISSIONERS IN THE COUNTIES WERE
ALLOWED "ACCESS TO THE U.S. CENSUS REPORTS OF THE ENUMERATION OF 1880,
ON FILE IN THE OFFICES OF THE COUNTY COURT CLERKS OF THE STATE, AND A
REFERENCE TO SAID REPORTS BY SAID COMMISSIONERS SHALL BE LEGITIMATE AS
AN AUXILIARY IN THE ENUMERATION REQUIRED  ...  ."  IBID., SEC. 4. 

THE UNITED STATES CENSUS REPORTED 330,305 MALE CITIZENS 21 AND UPWARD
IN TENNESSEE.  THE TENTH CENSUS OF THE UNITED STATES, 1880, COMPENDIUM
596 (1883).  THE TENNESSEE SECRETARY OF STATE'S REPORT GAVE A FIGURE OF
343,817, TENN. H.J. (1ST EXTRA.  SESS.), 1881, 12-14 (1882). 

THE GENERAL ASSEMBLY WAS ENLARGED IN ACCORDANCE WITH THE
CONSTITUTIONAL MANDATE SINCE THE STATE'S POPULATION HAD PASSED
1,500,000.  ACTS OF 1881 (1ST EXTRA.  SESS.), C. 5; AND SEE, ID., S.J.
RES. NO. III; SEE ALSO TENTH CENSUS OF THE UNITED STATES, 1880,
STATISTICS OF THE POPULATION 77 (1881).  THE STATUTE APPORTIONING THE
GENERAL ASSEMBLY WAS ACTS OF 1881 (1ST EXTRA.  SESS.), C. 6. 

FN8 ACTS OF 1891, C. 22; ACTS OF 1891 (EXTRA.  SESS.), C. 10. 
REFERENCE TO UNITED STATES CENSUS FIGURES WAS ALLOWED JUST AS IN 1881,
SEE SUPRA, N. 7.  THE UNITED STATES CENSUS REPORTED 402,476 MALES 21
AND OVER IN TENNESSEE.  THE ELEVENTH CENSUS OF THE UNITED STATES, 1890,
POPULATION (PART I) 781 (1895).  THE TENNESSEE SECRETARY OF STATE'S
REPORT GAVE A FIGURE OF 399,575.  1 TENN. S.J., 1891, 473-474. 

FN9  ACTS OF 1901, S.J. RES. NO. 35; ACTS OF 1901, C. 122.  THE JOINT
RESOLUTION SAID: "THE FEDERAL CENSUS OF 1900 HAS BEEN VERY RECENTLY
TAKEN AND BY REFERENCE TO SAID FEDERAL CENSUS AN ACCURATE ENUMERATION
OF THE QUALIFIED VOTERS OF THE RESPECTIVE COUNTIES OF THE STATE OF
TENNESSEE CAN BE ASCERTAINED AND THEREBY SAVE THE EXPENSE OF AN ACTUAL
ENUMERATION  ...  ." 

FN10  FOR THE HISTORY OF LEGISLATIVE APPORTIONMENT IN TENNESSEE,
INCLUDING ATTEMPTS MADE SINCE 1901, SEE TENN. S.J., 1959, 909-930; AND
"A DOCUMENTED SURVEY OF LEGISLATIVE APPORTIONMENT IN TENNESSEE, 1870
1957," WHICH IS ATTACHED AS EXHIBIT 2 TO THE INTERVENING COMPLAINT OF
MAYOR WEST OF NASHVILLE, BOTH PREPARED BY THE TENNESSEE STATE
HISTORIAN, DR. ROBERT H. WHITE.  EXAMPLES OF PRELIMINARY STEPS ARE:  IN
1911, THE SENATE CALLED UPON THE REDISTRICTING COMMITTEE TO MAKE AN
ENUMERATION OF QUALIFIED VOTERS AND TO USE THE FEDERAL CENSUS OF 1910
AS THE BASIS.  ACTS OF 1911, S.J. RES. NO. 60, P. 315.  SIMILARLY, IN
1961, THE SENATE CALLED FOR APPOINTMENT OF A SELECT COMMITTEE TO MAKE
AN ENUMERATION OF QUALIFIED VOTERS.  ACTS OF 1961, S.J. RES. NO. 47. 
IN 1955, THE SENATE CALLED FOR A STUDY OF REAPPORTIONMENT.  TENN. S.J.,
1955, 224; BUT SEE ID., AT 1403.  SIMILARLY, IN 1961, THE HOUSE
DIRECTED THE STATE LEGISLATIVE COUNCIL TO STUDY METHODS OF
REAPPORTIONMENT.  ACTS OF 1961, H.J. RES. NO. 65. 

FN11  TWELFTH CENSUS OF THE UNITED STATES, 1900, POPULATION (PART 1)
39 (1901); (PART 2) 202 (1902). 

FN12  UNITED STATES CENSUS OF POPULATION:  1960, GENERAL POPULATION
CHARACTERISTICS - TENNESSEE, TABLE 16 (1961). 

FN13  IN THE WORDS OF ONE OF THE INTERVENING COMPLAINTS, THE
APPORTIONMENT WAS "WHOLLY ARBITRARY, ...  AND, INDEED, BASED UPON NO
LAWFULLY PERTINENT FACTOR WHATEVER." 

FN14  THE APPELLANTS CLAIM THAT NO GENERAL ASSEMBLY CONSTITUTED
ACCORDING TO THE 1901 ACT WILL SUBMIT REAPPORTIONMENT PROPOSALS EITHER
TO THE PEOPLE OR TO A CONSTITUTIONAL CONVENTION.  THERE IS NO PROVISION
FOR POPULAR INITIATIVE IN TENNESSEE.  AMENDMENTS PROPOSED IN THE SENATE
OR HOUSE MUST FIRST BE APPROVED BY A MAJORITY OF ALL MEMBERS OF EACH
HOUSE AND AGAIN BY TWO-THIRDS OF THE MEMBERS IN THE GENERAL ASSEMBLY
NEXT CHOSEN.  THE PROPOSALS ARE THEN SUBMITTED TO THE PEOPLE AT THE
NEXT GENERAL ELECTION IN WHICH A GOVERNOR IS TO BE CHOSEN. 
ALTERNATIVELY, THE LEGISLATURE MAY SUBMIT TO THE PEOPLE AT ANY GENERAL
ELECTION THE QUESTION OF CALLING A CONVENTION TO CONSIDER SPECIFIED
PROPOSALS.  SUCH AS ARE ADOPTED AT A CONVENTION DO NOT, HOWEVER, BECOME
EFFECTIVE UNLESS APPROVED BY A MAJORITY OF THE QUALIFIED VOTERS VOTING
SEPARATELY ON EACH PROPOSED CHANGE OR AMENDMENT AT AN ELECTION FIXED BY
THE CONVENTION.  CONVENTIONS SHALL NOT BE HELD OFTENER THAN ONCE IN SIX
YEARS.  TENN. CONST., ART. XI, SEC. 3.  ACTS OF 1951, C. 130, SEC. 3,
AND ACTS OF 1957, C. 340, SEC. 3, PROVIDED THAT DELEGATES TO THE 1953
AND 1959 CONVENTIONS WERE TO BE CHOSEN FROM THE COUNTIES AND FLOTERIAL
DISTRICTS JUST AS ARE MEMBERS OF THE STATE HOUSE OF REPRESENTATIVES. 
THE GENERAL ASSEMBLY'S CALL FOR A 1953 CONSTITUTIONAL CONVENTION
ORIGINALLY CONTAINED A PROVISION "RELATING TO THE APPOINTMENT OF
REPRESENTATIVES AND SENATORS" BUT THIS WAS EXCISED.  TENN. H.J., 1951,
784.  A RESOLUTION INTRODUCED AT THE 1959 CONSTITUTIONAL CONVENTION AND
REPORTED UNFAVORABLY BY THE RULES COMMITTEE OF THE CONVENTION WAS AS
FOLLOWS: 

"BY MR. CHAMBLISS (OF HAMILTON COUNTY), RESOLUTION NO. 12 - RELATIVE
TO CONVENTION CONSIDERING REAPPORTIONMENT, WHICH IS AS FOLLOWS: 

"WHEREAS, THERE IS A RUMOR THAT THIS LIMITED CONVENTION HAS BEEN
CALLED FOR THE PURPOSE OF POSTPONING FOR SIX YEARS A CONVENTION THAT
WOULD MAKE A DECISION AS TO REAPPORTIONMENT; AND: 

"WHEREAS, THERE IS PENDING IN THE UNITED STATES COURTS IN TENNESSEE A
SUIT UNDER WHICH PARTIES ARE SEEKING, THROUGH DECREE, TO COMPEL
REAPPORTIONMENT; AND: 

"WHEREAS, IT IS SAID THAT THIS LIMITED CONVENTION, WHICH WAS CALLED
FOR LIMITED CONSIDERATION, IS YET A CONSTITUTIONAL CONVENTION WITHIN
THE LANGUAGE OF THE CONSTITUTION AS TO CONSTITUTIONAL CONVENTIONS,
FORBIDDING FREQUENT CONVENTIONS IN THE LAST SENTENCE OF ARTICLE ELEVEN,

"'NO SUCH CONVENTION SHALL BE HELD OFTENER THAN ONCE IN SIX YEARS.' 

"NOW, THEREFORE, BE IT RESOLVED, THAT IT IS THE CONSENSUS OF OPINION
OF THE MEMBERS OF THIS CONVENTION THAT SINCE THIS IS A LIMITED
CONVENTION AS HEREINBEFORE SET FORTH ANOTHER CONVENTION COULD BE HAD IF
IT DID NOT DEAL WITH THE MATTERS SUBMITTED TO THIS LIMITED CONVENTION. 

"BE IT FURTHER RESOLVED, THAT IT IS THE CONSENSUS OF OPINION OF THIS
CONVENTION THAT A CONVENTION SHOULD BE CALLED BY THE GENERAL ASSEMBLY
FOR THE PURPOSE OF CONSIDERING REAPPORTIONMENT IN ORDER THAT A
POSSIBILITY OF COURT ENFORCEMENT BEING FORCED ON THE SOVEREIGN STATE OF
TENNESSEE BY THE COURTS OF THE NATIONAL GOVERNMENT MAY BE AVOIDED. 

"BE IT FURTHER RESOLVED, THAT THIS CONVENTION BE ADJOURNED FOR TWO
YEARS TO MEET AGAIN AT THE SAME TIME SET FORTH IN THE STATUTE PROVIDING
FOR THIS CONVENTION, AND THAT IT IS THE CONSENSUS OF OPINION OF THIS
BODY THAT IT IS WITHIN THE POWER OF THE NEXT GENERAL ASSEMBLY OF
TENNESSEE TO BROADEN THE POWERS OF THIS CONVENTION AND TO AUTHORIZE AND
EMPOWER THIS CONVENTION TO CONSIDER A PROPER AMENDMENT TO THE
CONSTITUTION THAT WILL PROVIDE, WHEN SUBMITTED TO THE ELECTORATE, A
METHOD OF REAPPORTIONMENT."  TENN.  CONSTITUTIONAL CONVENTION OF 1959,
THE JOURNAL AND DEBATES, 35, 278. 

FN15  IT IS CLEAR THAT APPELLANTS' FEDERAL CONSTITUTIONAL CLAIMS REST
EXCLUSIVELY ON ALLEGED VIOLATION OF THE FOURTEENTH AMENDMENT.  THEIR
PRIMARY CLAIM IS THAT THE 1901 STATUTE VIOLATES THE EQUAL PROTECTION
CLAUSE OF THAT AMENDMENT.  THERE ARE ALLEGATIONS INVOKING THE DUE
PROCESS CLAUSE BUT FROM THE ARGUMENT AND THE EXHIBITS IT APPEARS THAT
THE DUE PROCESS CLAUSE ARGUMENT IS DIRECTED AT CERTAIN TAX STATUTES. 
INSOFAR AS THE CLAIM INVOLVES THE VALIDITY OF THOSE STATUTES UNDER THE
DUE PROCESS CLAUSE WE FIND IT UNNECESSARY TO DECIDE ITS MERITS.  AND IF
THE ALLEGATIONS REGARDING THE TAX STATUTES ARE DESIGNED AS THE
FRAMEWORK FOR PROOFS AS TO THE EFFECTS OF THE ALLEGEDLY DISCRIMINATORY
APPORTIONMENT, WE NEED NOT RELY UPON THEM TO SUPPORT OUR HOLDING THAT
THE COMPLAINT STATES A FEDERAL CONSTITUTIONAL CLAIM OF VIOLATION OF THE
EQUAL PROTECTION CLAUSE.  WHETHER, WHEN THE ISSUE TO BE DECIDED IS ONE
OF THE CONSTITUTIONAL ADEQUACY OF THIS PARTICULAR APPORTIONMENT,
TAXATION ARGUMENTS AND EXHIBITS AS NOW PRESENTED ADD ANYTHING, OR
WHETHER THEY COULD ADD ANYTHING HOWEVER PRESENTED, IS FOR THE DISTRICT
COURT IN THE FIRST INSTANCE TO DECIDE. 

THE COMPLAINT, IN ADDITION TO THE CLAIMS UNDER THE FEDERAL
CONSTITUTION, ALSO ALLEGES RIGHTS, AND THE GENERAL ASSEMBLY'S DUTIES,
UNDER THE TENNESSEE CONSTITUTION.  SINCE WE HOLD THAT APPELLANTS HAVE -
IF IT DEVELOPS AT TRIAL THAT THE FACTS SUPPORT THE ALLEGATIONS - A
COGNIZABLE FEDERAL CONSTITUTIONAL CAUSE OF ACTION RESTING IN NO DEGREE
ON RIGHTS GUARANTEED OR PUTATIVELY GUARANTEED BY THE TENNESSEE
CONSTITUTION, WE DO NOT CONSIDER, LET ALONE ENFORCE, RIGHTS UNDER A
STATE CONSTITUTION WHICH GO FURTHER THAN THE PROTECTIONS OF THE
FOURTEENTH AMENDMENT.  LASTLY, WE NEED NOT ASSESS THE LEGAL
SIGNIFICANCE, IN REACHING OUR CONCLUSION, OF THE STATEMENTS OF THE
COMPLAINT THAT THE APPORTIONMENT EFFECTED TODAY UNDER THE 1901 ACT IS
"CONTRARY TO THE PHILOSOPHY OF GOVERNMENT IN THE UNITED STATES AND ALL
ANGLO-SAXON JURISPRUDENCE  ...  ." 

FN16  WE NEED NOT REACH THE QUESTION OF INDISPENSABLE PARTIES BECAUSE
THE DISTRICT COURT HAS NOT YET DECIDED IT. 

FN17  THE ACCURACY OF CALLING EVEN SUCH DISMISSALS "JURISDICTIONAL"
WAS QUESTIONED IN BELL V. HOOD.  SEE 327 U.S., AT 683. 

FN18  42 U.S.C. SEC. 1983 PROVIDES:  "EVERY PERSON WHO, UNDER COLOR
OF ANY STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE, OF ANY STATE
OR TERRITORY, SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE
UNITED STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE
DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED IN AN
ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR
REDRESS." 

FN19  THIS COURT HAS FREQUENTLY SUSTAINED DISTRICT COURT JURISDICTION
UNDER 28 U.S.C.  SEC. 1343(3) OR ITS PREDECESSORS TO ENTERTAIN SUITS TO
REDRESS DEPRIVATIONS OF RIGHTS SECURED AGAINST STATE INFRINGEMENT BY
THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH
AMENDMENT.  DOUGLAS V. JEANNETTE, 319 U.S. 157; STEFANELLI V. MINARD,
342 U.S. 117; CF. NIXON V. HERNDON, 273 U.S. 536; NIXON V. CONDON, 286
U.S. 73; SNOWDEN V. HUGHES, 321 U.S. 1; SMITH V. ALLWRIGHT, 321 U.S.
649; MONROE V. PAPE, 365 U.S. 167; EGAN V. AURORA, 365 U.S. 514. 

FN20  SINCE THAT CASE WAS NOT BROUGHT TO THE COURT UNTIL AFTER THE
ELECTION HAD BEEN HELD, THE COURT CITED NOT ONLY WOOD V. BROOM, BUT
ALSO DIRECTED DISMISSAL FOR MOOTNESS, CITING BROWNLOW V. SCHWARTZ, 261
U.S. 216.    FN21  COMPARE BOEING AIRCRAFT CO. V. KING COUNTY, 330 U.S.
803 ("THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION").  SEE COLEMAN
V. MILLER, 307 U.S. 433, 440. 

FN22  MATTHEWS DID AFFIRM A JUDGMENT THAT MAY BE READ AS A DISMISSAL
FOR WANT OF JURISDICTION, 179 F. SUPP. 470.  HOWEVER, THE MOTION TO
AFFIRM ALSO RESTED ON THE GROUND OF FAILURE TO STATE A CLAIM UPON WHICH
RELIEF COULD BE GRANTED.  CF. TEXT FOLLOWING, ON MACDOUGALL V. GREEN. 
AND SEE TEXT, INFRA, P. 236. 

FN23  THE MAYOR OF NASHVILLE SUING "ON BEHALF OF HIMSELF AND ALL
RESIDENTS OF THE CITY OF NASHVILLE, DAVIDSON COUNTY,  ...  " AND THE
CITIES OF CHATTANOOGA (HAMILTON COUNTY) AND KNOXVILLE (KNOX COUNTY),
EACH SUING ON BEHALF OF ITS RESIDENTS, WERE PERMITTED TO INTERVENE AS
PARTIES PLAINTIFF.  SINCE THEY PRESS THE SAME CLAIMS AS DO THE INITIAL
PLAINTIFFS, WE FIND IT UNNECESSARY TO DECIDE WHETHER THE INTERVENORS
WOULD HAVE STANDING TO MAINTAIN THIS ACTION IN THEIR ASSERTED
REPRESENTATIVE CAPACITIES. 

FN24  THE COMPLAINT ALSO CONTAINS AN AVERMENT THAT THE APPELLANTS SUE
"ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHER VOTERS IN THE STATE OF
TENNESSEE."  THIS MAY BE READ TO ASSERT A CLAIM THAT VOTERS IN COUNTIES
ALLEGEDLY OVER-REPRESENTED IN THE GENERAL ASSEMBLY ALSO HAVE STANDING
TO COMPLAIN.  BUT IT IS NOT NECESSARY TO DECIDE THAT QUESTION IN THIS
CASE. 

FN25  THE DUTIES OF THE RESPECTIVE APPELLEES ARE ALLEGED TO BE AS
FOLLOWS: 

"DEFENDANT, JOE C. CARR, IS THE DULY ELECTED, QUALIFIED AND ACTING
SECRETARY OF STATE OF THE STATE OF TENNESSEE, WITH HIS OFFICE IN
NASHVILLE IN SAID STATE, AND AS SUCH HE IS CHARGED WITH THE DUTY OF
FURNISHING BLANKS, ENVELOPES AND INFORMATION SLIPS TO THE COUNTY
ELECTION COMMISSIONERS, CERTIFYING THE RESULTS OF ELECTIONS AND
MAINTAINING THE RECORDS THEREOF; AND HE IS FURTHER EX OFFICIO CHARGED,
TOGETHER WITH THE GOVERNOR AND THE ATTORNEY GENERAL, WITH THE DUTY OF
EXAMINING THE ELECTION RETURNS RECEIVED FROM THE COUNTY ELECTION
COMMISSIONERS AND DECLARING THE ELECTION RESULTS, BY THE APPLICABLE
PROVISIONS OF THE TENNESSEE CODE ANNOTATED, AND BY CHAPTER 164 OF THE
ACTS OF 1949, INTER ALIA. 

"DEFENDANT, GEORGE F. MCCANLESS, IS THE DULY APPOINTED AND ACTING
ATTORNEY GENERAL OF THE STATE OF TENNESSEE, WITH HIS OFFICE IN
NASHVILLE IN SAID STATE, AND IS CHARGED WITH THE DUTY OF ADVISING THE
OFFICERS OF THE STATE UPON THE LAW, AND IS MADE BY SECTION 23-1107 OF
THE TENNESSEE CODE ANNOTATED A NECESSARY PARTY DEFENDANT IN ANY
DECLARATORY JUDGMENT ACTION WHERE THE CONSTITUTIONALITY OF STATUTES OF
THE STATE OF TENNESSEE IS ATTACKED, AND HE IS EX-OFFICIO CHARGED,
TOGETHER WITH THE GOVERNOR AND THE SECRETARY OF STATE, WITH THE DUTY OF
DECLARING THE ELECTION RESULTS, UNDER SECTION 2-140 OF THE TENNESSEE
CODE ANNOTATED. 

"DEFENDANT, JERRY MCDONALD, IS THE DULY APPOINTED COORDINATOR OF
ELECTIONS IN THE STATE OF TENNESSEE, WITH HIS OFFICE IN NASHVILLE,
TENNESSEE, AND AS SUCH OFFICIAL, IS CHARGED WITH THE DUTIES SET FORTH
IN THE PUBLIC LAW ENACTED BY THE 1959 GENERAL ASSEMBLY OF TENNESSEE
CREATING SAID OFFICE. 

"DEFENDANTS, DR. SAM COWARD, JAMES ALEXANDER, AND HUBERT BROOKS ARE
THE DULY APPOINTED AND QUALIFIED MEMBERS CONSTITUTING THE STATE BOARD
OF ELECTIONS, AND AS SUCH THEY ARE CHARGED WITH THE DUTY OF APPOINTING
THE ELECTION COMMISSIONERS FOR ALL THE COUNTIES OF THE STATE OF
TENNESSEE, THE ORGANIZATION AND SUPERVISION OF THE BIENNIAL ELECTIONS
AS PROVIDED BY THE STATUTES OF TENNESSEE, CHAPTER 9 OF TITLE 2 OF THE
TENNESSEE CODE ANNOTATED, SECTIONS 2-901, ET SEQ. 

"THAT THIS ACTION IS BROUGHT AGAINST THE AFORENAMED DEFENDANTS IN
THEIR REPRESENTATIVE CAPACITIES, AND THAT SAID ELECTION COMMISSIONERS
ARE SUED ALSO AS REPRESENTATIVES OF ALL OF THE COUNTY ELECTION
COMMISSIONERS IN THE STATE OF TENNESSEE, SUCH PERSONS BEING SO NUMEROUS
AS TO MAKE IT IMPRACTICABLE TO BRING THEM ALL BEFORE THE COURT; THAT
THERE IS A COMMON QUESTION OF LAW INVOLVED, NAMELY, THE
CONSTITUTIONALITY OF TENNESSEE LAWS SET FORTH IN THE TENNESSEE CODE
ANNOTATED, SECTION 3-101 THROUGH SECTION 3-109, INCLUSIVE; THAT COMMON
RELIEF IS SOUGHT AGAINST ALL MEMBERS OF SAID ELECTION COMMISSIONS IN
THEIR OFFICIAL CAPACITIES, IT BEING THE DUTIES OF THE AFORESAID COUNTY
ELECTION COMMISSIONERS, WITHIN THEIR RESPECTIVE JURISDICTIONS, TO
APPOINT THE JUDGES OF ELECTIONS, TO MAINTAIN THE REGISTRY OF QUALIFIED
VOTERS OF SAID COUNTY, CERTIFY THE RESULTS OF ELECTIONS HELD IN SAID
COUNTY TO THE DEFENDANTS STATE BOARD OF ELECTIONS AND SECRETARY OF
STATE, AND OF PREPARING BALLOTS AND TAKING OTHER STEPS TO PREPARE FOR
AND HOLD ELECTIONS IN SAID COUNTIES BY VIRTUE OF SECTION 2-1201, ET
SEQ. OF TENNESSEE CODE ANNOTATED, AND SECTION 2-301, ET SEQ. OF
TENNESSEE CODE ANNOTATED, AND CHAPTER 164 OF THE ACTS OF 1949, INTER
ALIA." 

"THE QUESTION WHETHER THE NAMED DEFENDANTS ARE SUFFICIENT PARTIES
REMAINS OPEN FOR CONSIDERATION ON REMAND. 

FN26  SMILEY V. HOLM, SUPRA, AT 361 ("'CITIZEN, ELECTOR AND TAXPAYER'
OF THE STATE"); KOENIG V. FLYNN, SUPRA, AT 379 ("'CITIZENS AND VOTERS'
OF THE STATE") WOOD V. BROOM, SUPRA, AT 4 ("'CITIZEN OF MISSISSIPPI, A
QUALIFIED ELECTOR UNDER ITS LAWS, AND ALSO QUALIFIED TO BE A CANDIDATE
FOR ELECTION AS REPRESENTATIVE IN CONGRESS"); CF. CARROLL V. BECKER,
SUPRA (CANDIDATE FOR OFFICE). 

FN27  MR. JUSTICE RUTLEDGE WAS OF THE VIEW THAT ANY QUESTION OF
STANDING WAS SETTLED IN SMILEY V. HOLM, SUPRA; MR. JUSTICE BLACK STATED
"THAT APPELLANTS HAD STANDING TO SUE, SINCE THE FACTS ALLEGED SHOW THAT
THEY HAVE BEEN INJURED AS INDIVIDUALS."  HE RELIED ON COLEMAN V.
MILLER, 307 U.S. 433, 438, 467.  SEE 328 U.S. 564, 568. 

"COMMENTATORS HAVE SUGGESTED THAT THE FOLLOWING STATEMENT IN MR.
JUSTICE FRANKFURTER'S OPINION MIGHT IMPLY A VIEW THAT APPELLANTS THERE
HAD NO STANDING:  "THIS IS NOT AN ACTION TO RECOVER FOR DAMAGE BECAUSE
OF THE DISCRIMINATORY EXCLUSION OF A PLAINTIFF FROM RIGHTS ENJOYED BY
OTHER CITIZENS.   THE BASIS FOR THE SUIT IS NOT A PRIVATE WRONG, BUT A
WRONG SUFFERED BY ILLINOIS AS A POLITY."  328 U.S., AT 552.  SEE JAFFE,
STANDING TO SECURE JUDICIAL REVIEW:  PUBLIC ACTIONS, 74 HARV. L. REV.
1265, 1298 (1961); LEWIS, LEGISLATIVE APPORTIONMENT AND THE FEDERAL
COURTS, 71 HARV. L. REV. 1057, 1081-1083 (1958).  BUT SINCE THE OPINION
GOES ON TO CONSIDER THE MERITS, IT SEEMS THAT THIS STATEMENT WAS NOT
INTENDED TO INTIMATE ANY VIEW THAT THE PLAINTIFFS IN THAT ACTION LACKED
STANDING.  NOR DO THE CASES CITED IMMEDIATELY AFTER THE ABOVE QUOTATION
DEAL WITH STANDING.  SEE ESPECIALLY LANE V. WILSON, 307 U.S. 268, 272
273. 

FN28  MACDOUGALL V. GREEN, SUPRA, AT 282 ("THE 'PROGRESSIVE PARTY,'
ITS NOMINEES FOR UNITED STATES SENATOR, PRESIDENTIAL ELECTORS, AND
STATE OFFICES, AND SEVERAL ILLINOIS VOTERS"); SOUTH V. PETERS, SUPRA,
AT 277 ("RESIDENTS OF THE MOST POPULOUS COUNTY IN THE STATE"); RADFORD
V. GARY, 145 F. SUPP. 541, 542 ("CITIZEN OF OKLAHOMA AND RESIDENT AND
VOTER IN THE MOST POPULOUS COUNTY"); MATTHEWS V. HANDLEY, SUPRA
("CITIZEN OF THE STATE"); SEE ALSO HAWKE V. SMITH (NO. 1), 253 U.S.
221; LESER V. GARNETT, 258 U.S. 130; COLEMAN V. MILLER, 307 U.S. 433,
437-446. 

FN29  COOK V. FORTSON, 329 U.S. 675; TURMAN V. DUCKWORTH, IBID.;
COLEGROVE V. BARRETT, 330 U.S. 804; MACDOUGALL V. GREEN, 335 U.S. 281;
SOUTH V. PETERS, 339 U.S. 276; REMMEY V. SMITH, 342 U.S. 916; ANDERSON
V. JORDAN, 343 U.S. 912; KIDD V. MCCANLESS, 352 U.S. 920; RADFORD V.
GARY, 352 U.S. 991. 

FN30  "THE UNITED STATES SHALL GUARANTEE TO EVERY STATE IN THIS UNION
A REPUBLICAN FORM OF GOVERNMENT, AND SHALL PROTECT EACH OF THEM AGAINST
INVASION; AND ON APPLICATION OF THE LEGISLATURE, OR OF THE EXECUTIVE
(WHEN THE LEGISLATURE CANNOT BE CONVENED) AGAINST DOMESTIC VIOLENCE." 
U.S. CONST., ART. IV, SEC. 4. 

FN31  E.G., "THE CONDUCT OF THE FOREIGN RELATIONS OF OUR GOVERNMENT
IS COMMITTED BY THE CONSTITUTION TO THE EXECUTIVE AND LEGISLATIVE -
'THE POLITICAL' - DEPARTMENTS OF THE GOVERNMENT, AND THE PROPRIETY OF
WHAT MAY BE DONE IN THE EXERCISE OF THIS POLITICAL POWER IS NOT SUBJECT
TO JUDICIAL INQUIRY OR DECISION."  OETJEN V. CENTRAL LEATHER CO., 246
U.S. 297, 302. 

FN32  SEE DOE V. BRADEN, 16 HOW.  635, 657; TAYLOR V. MORTON, 23 FED.
CAS., NO. 13,799 (C.C.D. MASS.)(MR. JUSTICE CURTIS), AFFIRMED, 2 BLACK
481. 

FN33  SEE DOE V. BRADEN, 16 HOW.  635, 657. 

FN34  AND SEE CLARK V. ALLEN, 331 U.S. 503. 

FN35  UNITED STATES V. KLINTOCK, 5 WHEAT.  144, 149; SEE ALSO UNITED
STATES V. PALMER, 3 WHEAT.  610, 634-635. 

FN36  FOSTER & ELAM V. NEILSON, 2 PET. 253, 307; AND SEE WILLIAMS V.
SUFFOLK INSURANCE CO., 13 PET. 415, 420. 

FN37  VERMILYA-BROWN CO. V. CONNELL, 335 U.S. 377, 380; DE LIMA V.
BIDWELL, 182 U.S. 1, 180-200. 

FN38  SEE, E.G., HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S.
398, 426. 

FN39  CONTRAST MARTIN V. MOTT, SUPRA. 

FN40  BUT CF. DAKOTA CENTRAL TEL. CO. V. SOUTH DAKOTA, 250 U.S. 163,
184, 187. 

FN41  CF. DILLON V. GLOSS, 256 U.S. 368.  SEE ALSO UNITED STATES V.
SPRAGUE, 282 U.S. 716, 732. 

FN42  SEE ALSO FELLOWS V. BLACKSMITH, 19 HOW.  366, 372; UNITED
STATES V. OLD SETTLERS, 148 U.S. 427, 466; AND COMPARE DOE V. BRADEN,
16 HOW.  635, 657. 

FN43  THIS CASE, SO FREQUENTLY CITED FOR THE BROAD PROPOSITION THAT
THE STATUS OF AN INDIAN TRIBE IS A MATTER FOR THE POLITICAL
DEPARTMENTS, IS IN FACT A NOTEWORTHY EXAMPLE OF THE LIMITED AND PRECISE
IMPACT OF A POLITICAL QUESTION.  THE CHEROKEES BROUGHT AN ORIGINAL SUIT
IN THIS COURT TO ENJOIN GEORGIA'S ASSERTION OF JURISDICTION OVER
CHEROKEE TERRITORY AND ABOLITION OF CHEROKEE GOVERNMENT AND LAWS. 
UNQUESTIONABLY THE CASE LAY AT THE VORTEX OF MOST FIERY POLITICAL
EMBROILMENT.   SEE 1 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY
(REV. ED.), 729-779.  BUT IN SPITE OF SOME BROADER LANGUAGE IN SEPARATE
OPINIONS, ALL THAT THE COURT HELD WAS THAT IT POSSESSED NO ORIGINAL
JURISDICTION OVER THE SUIT:  FOR THE CHEROKEES COULD IN NO VIEW BE
CONSIDERED EITHER A STATE OF THIS UNION OR A "FOREIGN STATE."  CHIEF
JUSTICE MARSHALL TREATED THE QUESTION AS ONE OF DE NOVO INTERPRETATION
OF WORDS IN THE CONSTITUTION.  THE CHIEF JUSTICE DID SAY THAT "THE ACTS
OF OUR GOVERNMENT PLAINLY RECOGNIZE THE CHEROKEE NATION AS A STATE, AND
THE COURTS ARE BOUND BY THOSE ACTS," BUT HERE HE REFERRED TO THEIR
EXISTENCE "AS A STATE, AS A DISTINCT POLITICAL SOCIETY, SEPARATED FROM
OTHERS ...  ."  FROM THERE HE WENT TO "A QUESTION OF MUCH MORE
DIFFICULTY  ...  . DO THE CHEROKEES CONSTITUTE A FOREIGN STATE IN THE
SENSE OF THE CONSTITUTION?"  ID., AT 16.  THUS, WHILE THE COURT
REFERRED TO "THE POLITICAL" FOR THE DECISION WHETHER THE TRIBE WAS AN
ENTITY, A SEPARATE POLITY, IT HELD THAT WHETHER BEING AN ENTITY THE
TRIBE HAD SUCH STATUS AS TO BE ENTITLED TO SUE ORIGINALLY AS A
JUDICIALLY SOLUBLE ISSUE:  CRITERIA WERE DISCOVERABLE IN RELEVANT
PHRASES OF THE CONSTITUTION AND IN THE COMMON UNDERSTANDING OF THE
TIMES.  AS TO THIS ISSUE, THE COURT WAS NOT HAMPERED BY PROBLEMS OF THE
MANAGEMENT OF UNUSUAL EVIDENCE OR OF POSSIBLE INTERFERENCE WITH A
CONGRESSIONAL PROGRAM.  MOREOVER, CHIEF JUSTICE MARSHALL' DICTUM THAT
"IT SAVOURS TOO MUCH OF THE EXERCISE OF POLITICAL POWER TO BE WITHIN
THE PROPER PROVINCE OF THE JUDICIAL DEPARTMENT," ID., AT 20, WAS NOT
ADDRESSED TO THE ISSUE OF THE CHEROKEES' STATUS TO SUE, BUT RATHER TO
THE BREADTH OF THE CLAIM ASSERTED AND THE IMPROPRIETY OF THE RELIEF
SOUGHT.  COMPARE GEORGE V. STANTON, 6 WALL.  50, 77.   THE CHIEF
JUSTICE MADE CLEAR THAT IF THE ISSUE OF THE CHEROKEES' RIGHTS AROSE IN
A CUSTOMARY LEGAL CONTEXT, "A PROPER CASE WITH PROPER PARTIES," IT
WOULD BE JUSTICIABLE.  THUS, WHEN THE SAME DISPUTE PRODUCED A CASE
PROPERLY BROUGHT, IN WHICH THE RIGHT ASSERTED WAS ONE OF PROTECTION
UNDER FEDERAL TREATIES AND LAWS FROM CONFLICTING STATE LAW, AND THE
RELIEF SOUGHT WAS THE VOIDING OF A CONVICTION UNDER THAT STATE LAW, THE
COURT DID VOID THE CONVICTION.  WORCESTER V. GEORGIA, 6 PET. 515. 
THERE, THE FACT THAT THE TRIBE WAS A SEPARATE POLITY SERVED AS A DATUM
CONTRIBUTING TO THE RESULT, AND DESPITE THE CONSEQUENCES IN A HEATED
FEDERAL-STATE CONTROVERSY AND THE OPPOSITION OF THE OTHER BRANCHES OF
THE NATIONAL GOVERNMENT, THE JUDICIAL POWER ACTED TO REVERSE THE STATE
SUPREME COURT.  AN EXAMPLE OF SIMILAR ISOLATION OF A POLITICAL QUESTION
IN THE DECISION OF A CASE IS LUTHER V. BORDEN, 7 HOW.  1, SEE INFRA. 

FN44  7 HOW., AT 29.  AND SEE 11 THE WRITINGS AND SPEECHES OF DANIEL
WEBSTER 217 (1903). 

FN45  SEE MOWRY, THE DORR WAR (1901), AND ITS EXHAUSTIVE
BIBLIOGRAPHY.  AND FOR AN ACCOUNT OF CIRCUMSTANCES SURROUNDING THE
DECISION HERE, SEE 2 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY
(REV. ED.), 185-195. 

DORR HIMSELF, HEAD OF ONE OF THE TWO GROUPS AND HELD IN A RHODE
ISLAND JAIL UNDER A CONVICTION FOR TREASON, HAD EARLIER SOUGHT A
DECISION FROM THE SUPREME COURT THAT HIS WAS THE LAWFUL GOVERNMENT. 
HIS APPLICATION FOR ORIGINAL HABEAS CORPUS IN THE SUPREME COURT WAS
DENIED BECAUSE THE FEDERAL COURTS THEN LACKED AUTHORITY TO ISSUE HABEAS
FOR A PRISONER HELD UNDER A STATE COURT SENTENCE.  EX PARTE DORR, 3
HOW.  103. 

FN46  7 HOW., AT 39. 

FN47  ID., AT 39, 40. 

FN48  EVEN THOUGH THE COURT WROTE OF UNRESTRAINED LEGISLATIVE AND
EXECUTIVE AUTHORITY UNDER THIS GUARANTY, THUS MAKING ITS ENFORCEMENT A
POLITICAL QUESTION, THE COURT PLAINLY IMPLIED THAT THE POLITICAL
QUESTION BARRIER WAS NO ABSOLUTE:  "UNQUESTIONABLY A MILITARY
GOVERNMENT, ESTABLISHED AS THE PERMANENT GOVERNMENT OF THE STATE, WOULD
NOT BE A REPUBLICAN GOVERNMENT, AND IT WOULD BE THE DUTY OF CONGRESS TO
OVERTHROW IT."  7 HOW., AT 45.  OF COURSE, IT DOES NOT NECESSARILY
FOLLOW THAT IF CONGRESS DID NOT ACT, THE COURT WOULD.  FOR WHILE THE
JUDICIARY MIGHT BE ABLE TO DECIDE THE LIMITS OF THE MEANING OF
"REPUBLICAN FORM," AND THUS THE FACTOR OF LACK OF CRITERIA MIGHT FALL
AWAY, THERE WOULD REMAIN OTHER POSSIBLE BARRIERS TO DECISION BECAUSE OF
PRIMARY COMMITMENT TO ANOTHER BRANCH, WHICH WOULD HAVE TO BE CONSIDERED
IN THE PARTICULAR FACT SETTING PRESENTED.    THAT WAS NOT THE ONLY
OCCASION ON WHICH THIS COURT INDICATED THAT LACK OF CRITERIA DOES NOT
OBLITERATE THE GUARANTY'S EXTREME LIMITS:  "THE GUARANTY IS OF A
REPUBLICAN FORM OF GOVERNMENT.  NO PARTICULAR GOVERNMENT IS DESIGNATED
AS REPUBLICAN, NEITHER IS THE EXACT FORM TO BE GUARANTEED, IN ANY
MANNER ESPECIALLY DESIGNATED.  HERE, AS IN OTHER PARTS OF THE
INSTRUMENT, WE ARE COMPELLED TO RESORT ELSEWHERE TO ASCERTAIN WHAT WAS
INTENDED. 

"THE GUARANTY NECESSARILY IMPLIES A DUTY ON THE PART OF THE STATES
THEMSELVES TO PROVIDE SUCH A GOVERNMENT.  ALL THE STATES HAD
GOVERNMENTS WHEN THE CONSTITUTION WAS ADOPTED.  IN ALL THE PEOPLE
PARTICIPATED TO SOME EXTENT, THROUGH THEIR REPRESENTATIVES ELECTED IN
THE MANNER SPECIALLY PROVIDED.   THESE GOVERNMENTS THE CONSTITUTION DID
NOT CHANGE.  THEY WERE ACCEPTED PRECISELY AS THEY WERE, AND IT IS,
THEREFORE, TO BE PRESUMED THAT THEY WERE SUCH AS IT WAS THE DUTY OF THE
STATES TO PROVIDE.  THUS WE HAVE UNMISTAKABLE EVIDENCE OF WHAT WAS
REPUBLICAN IN FORM, WITHIN THE MEANING OF THAT TERM AS EMPLOYED IN THE
CONSTITUTION."  MINOR V. HAPPERSETT, 21 WALL.  162, 175-176.  THERE,
THE QUESTION WAS WHETHER A GOVERNMENT REPUBLICAN IN FORM COULD DENY THE
VOTE TO WOMEN. 

IN RE DUNCAN, 139 U.S. 449, UPHELD A MURDER CONVICTION AGAINST A
CLAIM THAT THE RELEVANT CODES HAD BEEN INVALIDLY ENACTED.  THE COURT
THERE SAID: 

"BY THE CONSTITUTION, A REPUBLICAN FORM OF GOVERNMENT IS GUARANTEED
TO EVERY STATE IN THE UNION, AND THE DISTINGUISHING FEATURE OF THAT
FORM IS THE RIGHT OF THE PEOPLE TO CHOOSE THEIR OWN OFFICERS FOR
GOVERNMENTAL ADMINISTRATION, AND PASS THEIR OWN LAWS IN VIRTUE OF THE
LEGISLATIVE POWER REPOSED IN REPRESENTATIVE BODIES, WHOSE LEGITIMATE
ACTS MAY BE SAID TO BE THOSE OF THE PEOPLE THEMSELVES; BUT, WHILE THE
PEOPLE ARE THUS THE SOURCE OF POLITICAL POWER, THEIR GOVERNMENTS,
NATIONAL AND STATE, HAVE BEEN LIMITED BY WRITTEN CONSTITUTIONS, AND
THEY HAVE THEMSELVES THEREBY SET BOUNDS TO THEIR OWN POWER, AS AGAINST
THE SUDDEN IMPULSES OF MERE MAJORITIES."  139 U.S., AT 461.  BUT THE
COURT DID NOT FIND ANY OF THESE FUNDAMENTAL PRINCIPLES VIOLATED. 

FN49  BUT CF. HAWKE V. SMITH (NO. 1), 253 U.S. 221; NATIONAL
PROHIBITION CASES, 253 U.S. 350. 

FN50  6 WALL., AT 65, 66. 

FN51  THE FIRST RECONSTRUCTION ACT OPENED:  "WHEREAS NO LEGAL STATE
GOVERNMENTS  ...  NOW EXISTS IN THE REBEL STATES OF  ...  GEORGIA (AND)
MISSISSIPPI  ...  ; AND WHEREAS IT IS NECESSARY THAT PEACE AND GOOD
ORDER SHOULD BE ENFORCED IN SAID STATES UNTIL LOYAL AND REPUBLICAN
STATE GOVERNMENTS CAN BE LEGALLY ESTABLISHED:  ..."  14 STAT. 428.  AND
SEE 15 STAT. 2, 14. 

FN52  IN MISSISSIPPI V. JOHNSON, 4 WALL.  475, THE STATE SOUGHT TO
ENJOIN THE PRESIDENT FROM EXECUTING THE ACTS, ALLEGING THAT HIS ROLE
WAS PURELY MINISTERIAL.  THE COURT HELD THAT THE DUTIES WERE IN NO
SENSE MINISTERIAL, AND THAT ALTHOUGH THE STATE SOUGHT TO COMPEL
INACTION RATHER THAN ACTION, THE ABSOLUTE LACK OF PRECEDENT FOR ANY
SUCH DISTINCTION LEFT THE CASE ONE IN WHICH "GENERAL PRINCIPLES  ...
FORBID JUDICIAL INTERFERENCE WITH THE EXERCISE OF EXECUTIVE
DISCRETION."  4 WALL., AT 499.  SEE ALSO MISSISSIPPI V. STANTON, 154
U.S. 544; AND SEE 2 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY
(REV. ED.), 463. 

FOR ANOTHER INSTANCE OF CONGRESSIONAL ACTION CHALLENGED AS
TRANSGRESSING THE GUARANTY CLAUSE, SEE THE COLLECTOR V. DAY, 11 WALL. 
113, 125-126, OVERRULED, GRAVES V. O'KEEFE, 306 U.S. 466. 

FN53  ON THE OTHER HAND, THE IMPLICATION OF THE GUARANTY CLAUSE IN A
CASE CONCERNING CONGRESSIONAL ACTION DOES NOT ALWAYS PRECLUDE JUDICIAL
ACTION.  IT HAS BEEN HELD THAT THE CLAUSE GIVES CONGRESS NO POWER TO
IMPOSE RESTRICTIONS UPON A STATE'S ADMISSION WHICH WOULD UNDERCUT THE
CONSTITUTIONAL MANDATE THAT THE STATES BE ON AN EQUAL FOOTING.  COYLE
V. SMITH, 221 U.S. 559.  AND IN TEXAS V. WHITE, 7 WALL.  700, ALTHOUGH
CONGRESS HAD DETERMINED THAT THE STATE'S GOVERNMENT WAS NOT REPUBLICAN
IN FORM, THE STATE'S STANDING TO BRING AN ORIGINAL ACTION IN THIS COURT
WAS SUSTAINED. 

FN54  SEE, INFRA, P. 235, CONSIDERING KIDD V. MCCANLESS, 352 U.S.
920. 

FN55  BOYD V. NEBRASKA EX REL. THAYER, 143 U.S. 135, 183 (FIELD, J.,
DISSENTING). 

FN56  GOMILLION V. LIGHTFOOT, 270 F.2D 594, RELYING UPON, INTER ALIA,
HUNTER V. PITTSBURGH, 207 U.S. 161. 

FN57  THE COURT'S OPINION WAS JOINED BY MR. JUSTICE DOUGLAS, NOTING
HIS ADHERENCE TO THE DISSENTS IN COLEGROVE AND SOUTH V. PETERS, SUPRA;
AND THE JUDGMENT WAS CONCURRED IN BY MR. JUSTICE WHITTAKER, WHO WROTE
THAT THE DECISION SHOULD REST ON THE EQUAL PROTECTION CLAUSE RATHER
THAN ON THE FIFTEENTH AMENDMENT, SINCE THERE HAD BEEN NOT SOLELY A
DENIAL OF THE VOTE (IF THERE HAD BEEN THAT AT ALL) BUT ALSO A "FENCING
OUT" OF A RACIAL GROUP. 

FN58  NO HOLDING TO THE CONTRARY IS TO BE FOUND IN CAVE V. NEWELL,
246 U.S. 650, DISMISSING A WRIT OF ERROR TO THE SUPREME COURT OF
MISSOURI, 272 MO. 653, 199 S.W. 1014; OR IN SNOWDEN V. HUGHES, 321 U.S.
1. 

FN59  THE GROUND OF MR. JUSTICE RUTLEDGE'S VOTE TO AFFIRM IS FURTHER
EXPLAINED IN HIS FOOTNOTE 3, 328 U.S., AT 566:  "'THE POWER OF A COURT
OF EQUITY TO ACT IS A DISCRETIONARY ONE  ...  .  WHERE A FEDERAL COURT
OF EQUITY IS ASKED TO INTERFERE WITH THE ENFORCEMENT OF STATE LAWS, IT
SHOULD DO SO ONLY "TO PREVENT IRREPARABLE INJURY WHICH IS CLEAR AND
IMMINENT."'  AMERICAN FEDERATION OF LABOR V. WATSON, 327 U.S. 582, 593
AND CASES CITED." 

NO CONSTITUTIONAL QUESTIONS, INCLUDING THE QUESTION WHETHER VOTERS
HAVE A JUDICIALLY ENFORCEABLE CONSTITUTIONAL RIGHT TO VOTE AT ELECTIONS
OF CONGRESSMEN FROM DISTRICTS OF EQUAL POPULATION, WERE DECIDED IN
COLEGROVE.  SIX OF THE PARTICIPATING JUSTICES REACHED THE QUESTIONS BUT
DIVIDED THREE TO THREE ON THEIR MERITS.  MR. JUSTICE RUTLEDGE BELIEVED
THAT IT WAS NOT NECESSARY TO DECIDE THEM.  HE SAID:  "THERE IS (AN
ALTERNATIVE TO CONSTITUTIONAL DECISION) IN THIS CASE.  AND I THINK THE
GRAVITY OF THE CONSTITUTIONAL QUESTIONS RAISED SO GREAT, TOGETHER WITH
THE POSSIBILITIES FOR COLLISION (WITH THE POLITICAL DEPARTMENTS OF THE
GOVERNMENT), THAT THE ADMONITION (AGAINST AVOIDABLE CONSTITUTIONAL
DECISION) IS APPROPRIATE TO BE FOLLOWED HERE.  OTHER REASONS SUPPORT
THIS VIEW, INCLUDING THE FACT THAT, IN MY OPINION, THE BASIC RULING AND
LESS IMPORTANT ONES IN SMILEY V. HOLM, SUPRA, WOULD OTHERWISE BE
BROUGHT INTO QUESTION."  328 U.S., AT 564-565.  HE ALSO JOINED WITH HIS
BRETHREN WHO SHARED HIS VIEW THAT THE ISSUES WERE JUSTICIABLE IN
CONSIDERING THAT WOOD V. BROOM, 287 U.S. 1, DECIDED NO CONSTITUTIONAL
QUESTIONS BUT "THE COURT DISPOSED OF THE CAUSE ON THE GROUND THAT THE
1929 REAPPORTIONMENT ACT, 46 STAT. 21, DID NOT CARRY FORWARD THE
REQUIREMENTS OF THE 1911 ACT, 37 STAT. 13, AND DECLINED TO DECIDE
WHETHER THERE WAS EQUITY IN THE BILL."  328 U.S., AT 565; SEE ALSO,
ID., AT 573.  WE AGREE WITH THIS VIEW OF WOOD V. BROOM. 

FN60  SEE ALSO BUFORD V. STATE BOARD OF ELECTIONS, 206 TENN. 480, 334
S.W.2D 726; STATE EX REL. SANBORN V. DAVIDSON COUNTY BOARD OF ELECTION
COMM'RS, NO. 36,391 TENN. SUP. CT., OCT. 29, 1954 (UNREPORTED); 8
VAND.  L. REV. 501 (1955). 

MR. JUSTICE WHITTAKER DID NOT PARTICIPATE IN THE DECISION OF THIS
CASE. 

                                 APPENDIX TO OPINION OF THE COURT. 

THE TENNESSEE CODE ANNOTATED PROVIDES FOR REPRESENTATION IN THE
GENERAL ASSEMBLY AS FOLLOWS: 

"3-101.  COMPOSITION - COUNTIES ELECTING ONE REPRESENTATIVE EACH.  -
THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE SHALL BE COMPOSED OF
THIRTY-THREE (33) SENATORS AND NINETY-NINE (99) REPRESENTATIVES, TO BE
APPORTIONED AMONG THE QUALIFIED VOTERS OF THE STATE AS FOLLOWS: UNTIL
THE NEXT ENUMERATION AND APPORTIONMENT OF VOTERS EACH OF THE FOLLOWING
COUNTIES SHALL ELECT ONE (1) REPRESENTATIVE, TO WIT:  BEDFORD, BLOUNT,
CANNON, CARROLL, CHESTER, COCKE, CLAIBORNE, COFFEE, CROCKETT, DEKALB,
DICKSON, DYER, FAYETTE, FRANKLIN, GILES, GREENE, HARDEMAN, HARDIN,
HENRY, HICKMAN, HAWKINS, HAYWOOD, JACKSON, LAKE, LAUDERDALE, LAWRENCE,
LINCOLN, MARION, MARSHALL, MAURY, MONROE, MONTGOMERY, MOORE, MCMINN,
MCNAIRY, OBION, OVERTON, PUTNAM, ROANE, ROBERTSON, RUTHERFORD, SEVIER,
SMITH, STEWART, SULLIVAN, SUMNER, TIPTON, WARREN, WASHINGTON, WHITE,
WEAKLEY, WILLIAMSON AND WILSON.   (ACTS 1881 (E.S.), CH.  5, SEC. 1;
1881 (E.S.), CH. 6, SEC. 1; 1901, CH. 122, SEC. 2; 1907, CH. 178, SECS.
1, 2; 1915, CH. 145; SHAN., SEC. 123; ACTS 1919, CH. 147, SECS. 1, 2;
1925 PRIVATE, CH. 472, SEC. 1; CODE 1932, SEC. 140; ACTS 1935, CH. 150,
SEC. 1; 1941, CH. 58, SEC. 1; 1945, CH. 68, SEC. 1; C. SUPP. 1950, SEC.
140.) 

"3-102.  COUNTIES ELECTING TWO REPRESENTATIVES EACH.  - THE FOLLOWING
COUNTIES SHALL ELECT TWO (2) REPRESENTATIVES EACH, TO WIT:  GIBSON AND
MADISON.  (ACTS 1901, CH. 122, SEC. 3; SHAN., SEC. 124; MOD. CODE 1932,
SEC. 141.) 

"3-103.  COUNTIES ELECTING THREE REPRESENTATIVES EACH.  - THE
FOLLOWING COUNTIES SHALL ELECT THREE (3) REPRESENTATIVES EACH, TO WIT:
KNOX AND HAMILTON.  (ACTS 1901, CH. 122, SEC. 4; SHAN., SEC. 125; CODE
1932, SEC. 142.) 

"3-104.  DAVIDSON COUNTY.  - DAVIDSON COUNTY SHALL ELECT SIX (6)
REPRESENTATIVES.  (ACTS 1901, CH. 122, SEC. 5; SHAN., SEC. 126; CODE
1932, SEC. 143.) 

"3-105.  SHELBY COUNTY.  - SHELBY COUNTY SHALL ELECT EIGHT (8)
REPRESENTATIVES.  SAID COUNTY SHALL CONSIST OF EIGHT (8) REPRESENTATIVE
DISTICTS, NUMBERED ONE (1) THROUGH EIGHT (8), EACH DISTRICT CO
EXTENSIVE WITH THE COUNTY, WITH ONE (1) REPRESENTATIVE TO BE ELECTED
FROM EACH DISTRICT.  (ACTS 1901, CH. 122, SEC. 6; SHAN., SEC. 126A1;
CODE 1932, SEC. 144; ACTS 1957, CH. 220, SEC. 1; 1959, CH. 213, SEC.
1.) 

"3-106.  JOINT REPRESENTATIVES.  - THE FOLLOWING COUNTIES JOINTLY,
SHALL ELECT ONE REPRESENTATIVE, AS FOLLOWS, TO WIT: 

"FIRST DISTRICT - JOHNSON AND CARTER. 

"SECOND DISTRICT - SULLIVAN AND HAWKINS. 

"THIRD DISTRICT - WASHINGTON, GREENE AND UNICOI. 

"FOURTH DISTRICT - JEFFERSON AND HAMBLEN. 

"FIFTH DISTRICT - HANCOCK AND GRAINGER. 

"SIXTH DISTRICT - SCOTT, CAMPBELL, AND UNION. 

"SEVENTH DISTRICT - ANDERSON AND MORGAN. 

"EIGHTH DISTRICT - KNOX AND LOUDON. 

"NINTH DISTRICT - POLK AND BRADLEY. 

"TENTH DISTRICT - MEIGS AND RHEA. 

"ELEVENTH DISTRICT - CUMBERLAND, BLEDSOE, SEQUATCHIE, VAN BUREN AND
GRUNDY. 

"TWELFTH DISTRICT - FENTRESS, PICKETT, OVERTON, CLAY AND PUTNAM. 

"FOURTEENTH DISTRICT - SUMNER, TROUSDALE AND MACON. 

"FIFTEENTH DISTRICT - DAVIDSON AND WILSON. 

"SEVENTEENTH DISTRICT - GILES, LEWIS, MAURY AND WAYNE. 

"EIGHTEENTH DISTRICT - WILLIAMSON, CHEATHAM AND ROBERTSON. 

"NINETEENTH DISTRICT - MONTGOMERY AND HOUSTON. 

"TWENTIETH DISTRICT - HUMPHREYS AND PERRY. 

"TWENTY-FIRST DISTRICT - BENTON AND DECATUR. 

"TWENTY-SECOND DISTRICT - HENRY, WEAKLEY AND CARROLL. 

"TWENTY-THIRD DISTRICT - MADISON AND HENDERSON. 

"TWENTY-SIXTH DISTRICT - TIPTON AND LAUDERDALE.  (ACTS 1901, CH. 122,
SEC. 7; 1907, CH. 178, SECS. 1, 2; 1915, CH. 145, SECS. 1, 2; SHAN.,
SEC. 127; ACTS 1919, CH. 147, SEC. 1; 1925 PRIVATE, CH. 472, SEC. 2;
CODE 1932, SEC. 145; ACTS 1933, CH. 167, SEC. 1; 1935, CH. 150, SEC. 2;
1941, CH. 58, SEC. 2; 1945, CH. 68, SEC. 2; C. SUPP. 1950, SEC. 145;
ACTS 1957, CH.  220, SEC. 2.) 

"3-107.  STATE SENATORIAL DISTRICTS.  - UNTIL THE NEXT ENUMERATION
AND APPORTIONMENT OF VOTERS, THE FOLLOWING COUNTIES SHALL COMPRISE THE
SENATORIAL DISTRICTS, TO WIT: 

"FIRST DISTRICT - JOHNSON, CARTER, UNICOI, GREENE, AND WASHINGTON. 

"SECOND DISTRICT - SULLIVAN AND HAWKINS. 

"THIRD DISTRICT - HANCOCK, MORGAN, GRAINGER, CLAIBORNE, UNION,
CAMPBELL, AND SCOTT. 

"FOURTH DISTRICT - COCKE, HAMBLEN, JEFFERSON, SEVIER, AND BLOUNT. 

"FIFTH DISTRICT - KNOX. 

"SIXTH DISTRICT - KNOX, LOUDON, ANDERSON, AND ROANE. 

"SEVENTH DISTRICT - MCMINN, BRADLEY, MONROE, AND POLK. 

"EIGHTH DISTRICT - HAMILTON. 

"NINTH DISTRICT - RHEA, MEIGS, BLEDSOE, SEQUATCHIE, VAN BUREN, WHITE,
AND CUMBERLAND. 

"TENTH DISTRICT - FENTRESS, PICKETT, CLAY, OVERTON, PUTNAM, AND
JACKSON. 

"ELEVENTH DISTRICT - MARION, FRANKLIN, GRUNDY AND WARREN. 

"TWELFTH DISTRICT - RUTHERFORD, CANNON, AND DEKALB. 

"THIRTEENTH DISTRICT - WILSON AND SMITH. 

"FOURTEENTH DISTRICT - SUMNER, TROUSDALE AND MACON. 

"FIFTEENTH DISTRICT - MONTGOMERY AND ROBERTSON. 

"SIXTEENTH DISTRICT - DAVIDSON. 

"SEVENTEENTH DISTRICT - DAVIDSON. 

"EIGHTEENTH DISTRICT - BEDFORD, COFFEE AND MOORE. 

"NINETEENTH DISTRICT - LINCOLN AND MARSHALL. 

"TWENTIETH DISTRICT - MAURY, PERRY AND LEWIS. 

"TWENTY-FIRST DISTRICT - HICKMAN, WILLIAMSON AND CHEATHAM. 

"TWENTY-SECOND DISTRICT - GILES, LAWRENCE AND WAYNE. 

"TWENTY-THIRD DISTRICT - DICKSON, HUMPHREYS, HOUSTON AND STEWART. 

"TWENTY-FOURTH DISTRICT - HENRY AND CARROLL. 

"TWENTY-FIFTH DISTRICT - MADISON, HENDERSON AND CHESTER. 

"TWENTY-SIXTH DISTRICT - HARDEMAN, MCNAIRY, HARDIN, DECATUR AND
BENTON. 

"TWENTY-SEVENTH DISTRICT - GIBSON. 

"TWENTY-EIGHTH DISTRICT - LAKE, OBION AND WEAKLEY. 

"TWENTY-NINTH DISTRICT - DYER, LAUDERDALE AND CROCKETT. 

"THIRTIETH DISTRICT - TIPTON AND SHELBY. 

"THIRTY-FIRST DISTRICT - HAYWOOD AND FAYETTE. 

"THIRTY-SECOND DISTRICT - SHELBY. 

"THIRTY-THIRD DISTRICT - SHELBY.  (ACTS 1901, CH. 122, SEC. 1; 1907,
CH. 3, SEC. 1; SHAN., SEC. 128; CODE 1932, SEC. 146; ACTS 1945, CH. 11,
SEC. 1; C. SUPP. 1950, SEC. 146.)" 

TODAY'S APPORTIONMENT STATUTE IS AS ENACTED IN 1901, WITH MINOR
CHANGES.  FOR EXAMPLE: 

(1)  IN 1957, SHELBY COUNTY WAS RAISED FROM 7 1/2 TO 8
REPRESENTATIVES.  ACTS OF 1957, C. 220.  SEE ALSO ACTS OF 1959, C.
213.  THE 1957 ACT, SEC. 2, ABOLISHED THE TWENTY-SEVENTH JOINT
REPRESENTATIVE DISTRICT, WHICH HAD INCLUDED SHELBY AND FAYETTE
COUNTIES. 

(2)  IN 1907, MARION COUNTY WAS GIVEN A WHOLE HOUSE SEAT INSTEAD OF
SHARING A JOINT SEAT WITH FRANKLIN COUNTY.  ACTS OF 1907, C. 178.  ACTS
OF 1915, C. 145, REPEALED THAT CHANGE, RESTORING THE STATUS QUO ANTE. 
AND THAT REVERSAL WAS ITSELF REVERSED, ACTS OF 1919, C. 147.    (3)
JAMES COUNTY WAS IN 1901 ONE OF FIVE COUNTIES IN THE SEVENTH STATE
SENATE DISTRICT AND ONE OF THE THREE IN THE NINTH HOUSE DISTRICT.  IT
APPEARS THAT JAMES COUNTY NO LONGER EXISTS BUT WE ARE NOT ADVISED WHEN
OR HOW IT WAS DISSOLVED. 

(4)  IN 1945, ANDERSON AND ROANE COUNTIES WERE SHIFTED TO THE SIXTH
STATE SENATE DISTRICT FROM THE SEVENTH, AND MONROE AND POLK COUNTIES
WERE SHIFTED TO THE SEVENTH FROM THE SIXTH.  ACTS OF 1945, C. 11. 
MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT AND, LIKE THE COURT, DO NOT
REACH THE MERITS, A WORD OF EXPLANATION IS NECESSARY.  (FN1)  I PUT TO
ONE SIDE THE PROBLEMS OF "POLITICAL" QUESTIONS INVOLVING THE
DISTRIBUTION OF POWER BETWEEN THIS COURT, THE CONGRESS, AND THE CHIEF
EXECUTIVE.  WE HAVE HERE A PHASE OF THE RECURRING PROBLEM OF THE
RELATION OF THE FEDERAL COURTS TO STATE AGENCIES.  MORE PARTICULARLY,
THE QUESTION IS THE EXTENT TO WHICH A STATE MAY WEIGHT ONE PERSON'S
VOTE MORE HEAVILY THAN IT DOES ANOTHER'S. 

SO FAR AS VOTING RIGHTS ARE CONCERNED, THERE ARE LARGE GAPS IN THE
CONSTITUTION.  YET THE RIGHT TO VOTE IS INHERENT IN THE REPUBLICAN FORM
OF GOVERNMENT ENVISAGED BY ARTICLE IV, SECTION 4 OF THE CONSTITUTION. 
THE HOUSE - AND NOW THE SENATE - ARE CHOSEN BY THE PEOPLE.  THE TIME,
MANNER, AND PLACE OF ELECTIONS OF SENATORS AND REPRESENTATIVES ARE LEFT
TO THE STATES (ARTICLE I, SECTION 4, CLAUSE 1; AMENDMENT XVII) SUBJECT
TO THE REGULATORY POWER OF CONGRESS.  A "REPUBLICAN FORM" OF GOVERNMENT
IS GUARANTEED EACH STATE BY ARTICLE IV, SECTION 4, AND EACH IS LIKEWISE
PROMISED PROTECTION AGAINST INVASION.  (FN2)  IBID.  THAT THE STATES
MAY SPECIFY THE QUALIFICATIONS FOR VOTERS IS IMPLICIT IN ARTICLE I,
SHALL BE CHOSEN BY THE PEOPLE AND THAT "THE ELECTORS (VOTERS) IN EACH
STATE SHALL HAVE THE QUALIFICATIONS REQUISITE FOR ELECTORS (VOTERS) OF
THE MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE."  THE SAME
PROVISION, CONTAINED IN THE SEVENTEENTH AMENDMENT, GOVERNS THE ELECTION
OF SENATORS.  WITHIN LIMITS THOSE QUALIFICATIONS MAY BE FIXED BY STATE
LAW.  SEE LASSITER V. NORTHAMPTON ELECTION BOARD, 360 U.S. 45, 50-51. 
YET, AS STATED IN EX PARTE YARBROUGH, 110 U.S. 651, 663-664, THOSE WHO
VOTE FOR MEMBERS OF CONGRESS DO NOT "OWE THEIR RIGHT TO VOTE TO THE
STATE LAW IN ANY SENSE WHICH MAKES THE EXERCISE OF THE RIGHT TO DEPEND
EXCLUSIVELY ON THE LAW OF THE STATE."  THE POWER OF CONGRESS TO
PRESCRIBE THE QUALIFICATIONS FOR VOTERS AND THUS OVERRIDE STATE LAW IS
NOT IN ISSUE HERE.  IT IS, HOWEVER, CLEAR THAT BY REASON OF THE
COMMANDS OF THE CONSTITUTION THERE ARE SEVERAL QUALIFICATIONS THAT A
STATE MAY NOT REQUIRE. 

RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE IS AN IMPERMISSIBLE
STANDARD BY REASON OF THE FIFTEENTH AMENDMENT, AND THAT ALONE IS
SUFFICIENT TO EXPLAIN GOMILLION V. LIGHTFOOT, 364 U.S. 339.  SEE TAPER,
GOMILLION VERSUS LIGHTFOOT (1962), PP. 12-17. 

SEX IS ANOTHER IMPERMISSIBILE STANDARD BY REASON OF THE NINETEENTH
AMENDMENT. 

THERE IS A THIRD BARRIER TO A STATE'S FREEDOM IN PRESCRIBING
QUALIFICATIONS OF VOTERS AND THAT IS THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, THE PROVISION INVOKED HERE.  AND SO THE QUESTION
IS, MAY A STATE WEIGHT THE VOTE OF ONE COUNTY OR ONE DISTRICT MORE
HEAVILY THAN IT WEIGHTS THE VOTE IN ANOTHER? 

THE TRADITIONAL TEST UNDER THE EQUAL PROTECTION CLAUSE HAS BEEN
WHETHER A STATE HAS MADE "AN INVIDIOUS DISCRIMINATION," AS IT DOES WHEN
IT SELECTS "A PARTICULAR RACE OR NATIONALITY FOR OPPRESSIVE
TREATMENT."  SEE SKINNER V. OKLAHOMA, 316 U.S. 535, 541.  UNIVERSAL
EQUALITY IS NOT THE TEST; THERE IS ROOM FOR WEIGHTING.  AS WE STATED IN
WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489, "THE PROHIBITION OF
THE EQUAL PROTECTION CLAUSE GOES NO FURTHER THAN THE INVIDIOUS
DISCRIMINATION." 

I AGREE WITH MY BROTHER CLARK THAT IF THE ALLEGATIONS IN THE
COMPLAINT CAN BE SUSTAINED A CASE FOR RELIEF IS ESTABLISHED.  WE ARE
TOLD THAT A SINGLE VOTE IN MOORE COUNTY, TENNESSEE, IS WORTH 19 VOTES
IN HAMILTON COUNTY, THAT ONE VOTE IN STEWART OR IN CHESTER COUNTY IS
WORTH NEARLY EIGHT TIMES A SINGLE VOTE IN SHELBY OR KNOX COUNTY.  THE
OPPORTUNITY TO PROVE THAT AN "INVIDIOUS DISCRIMINATION" EXISTS SHOULD
THEREFORE BE GIVEN THE APPELLANTS. 

IT IS SAID THAT ANY DECISION IN CASES OF THIS KIND IS BEYOND THE
COMPETENCE OF COURTS.  SOME MAKE THE SAME POINT AS REGARDS THE PROBLEM
OF EQUAL PROTECTION IN CASES INVOLVING RACIAL SEGREGATION.  YET THE
LEGALITY OF CLAIMS AND CONDUCT IS A TRADITIONAL SUBJECT FOR JUDICIAL
DETERMINATION.  ADJUDICATION IS OFTEN PERPLEXING AND COMPLICATED.  AN
EXAMPLE OF THE EXTREME COMPLEXITY OF THE TASK CAN BE SEEN IN A DECREE
APPORTIONING WATER AMONG THE SEVERAL STATES.  NEBRASKA V. WYOMING, 325
U.S. 589, 665.  THE CONSTITUTIONAL GUIDE IS OFTEN VAGUE, AS THE
DECISIONS UNDER THE DUE PROCESS AND COMMERCE CLAUSES SHOW.  THE PROBLEM
UNDER THE EQUAL PROTECTION CLAUSE IS NO MORE INTRICATE.  SEE LEWIS,
LEGISLATIVE APPORTIONMENT AND THE FEDERAL COURTS, 71 HARV. L. REV.
1057, 1083-1084. 

THERE ARE, OF COURSE, SOME QUESTIONS BEYOND JUDICIAL COMPETENCE. 
WHERE THE PERFORMANCE OF A "DUTY" IS LEFT TO THE DISCRETION AND GOOD
JUDGMENT OF AN EXECUTIVE OFFICER, THE JUDICIARY WILL NOT COMPEL THE
EXERCISE OF HIS DISCRETION ONE WAY OR THE OTHER (KENTUCKY V. DENNISON,
24 HOW.  66, 109), FOR TO DO SO WOULD BE TO TAKE OVER THE OFFICE.  CF.
FEDERAL COMMUNICATIONS COMM'N V. BROADCASTING CO., 309 U.S. 134, 145. 

WHERE THE CONSTITUTION ASSIGNS A PARTICULAR FUNCTION WHOLLY AND
INDIVISIBLY (FN3) TO ANOTHER DEPARTMENT, THE FEDERAL JUDICIARY DOES NOT
INTERVENE.  OETJEN V. CENTRAL LEATHER CO., 246 U.S. 297, 302.  NONE OF
THESE CASES IS RELEVANT HERE. 

THERE IS NO DOUBT THAT THE FEDERAL COURTS HAVE JURISDICTION OF
CONTROVERSIES CONCERNING VOTING RIGHTS.  THE CIVIL RIGHTS ACT GIVES
THEM AUTHORITY TO REDRESS THE DEPRIVATION "UNDER COLOR OF ANY STATE
LAW" OF ANY "RIGHT, PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION
OF THE UNITED STATES OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL
RIGHTS OF CITIZENS  ...  ."  28 U.S.C. SEC. 1343(3).  AND 28 U.S.C.
SEC. 1343(4) GIVES THE FEDERAL COURTS AUTHORITY TO AWARD DAMAGES OR
ISSUE AN INJUNCTION TO REDRESS THE VIOLATION OF "ANY ACT OF CONGRESS
PROVIDING FOR THE PROTECTION OF CIVIL RIGHTS, INCLUDING THE RIGHT TO
VOTE."  THE ELEMENT OF STATE ACTION COVERS A WIDE RANGE.  FOR AS STATED
IN UNITED STATES V. CLASSIC, 313 U.S. 299, 326: 

"MISUSE OF POWER, POSSESSED BY VIRTUE OF STATE LAW AND MADE POSSIBLE
ONLY BECAUSE THE WRONGDOER IS CLOTHED WITH THE AUTHORITY OF STATE LAW,
IS ACTION TAKEN 'UNDER COLOR OF' STATE LAW."  AND SEE MONROE V. PAPE,
365, U.S. 167. 

THE RIGHT TO VOTE IN BOTH FEDERAL AND STATE ELECTIONS WAS PROTECTED
BY THE JUDICIARY LONG BEFORE THAT RIGHT RECEIVED THE EXPLICIT
PROTECTION IT IS NOW ACCORDED BY SEC. 1343(4).  DISCRIMINATION AGAINST
A VOTER ON ACCOUNT OF RACE HAD BEEN PENALIZED (EX PARTE YARBROUGH, 110
U.S. 651) OR STRUCK DOWN.  NIXON V. HERNDON, 273 U.S. 536; SMITH V.
ALLWRIGHT, 321 U.S. 649; TERRY V. ADAMS, 345 U.S. 461.  FRAUDULENT ACTS
THAT DILUTE THE VOTES OF SOME HAVE LONG BEEN HELD TO BE WITHIN JUDICIAL
COGNIZANCE.  EX PARTE SIEBOLD, 100 U.S. 371.  THE "RIGHT TO HAVE ONE'S
VOTE COUNTED" WHATEVER HIS RACE OR NATIONALITY OR CREED WAS HELD IN
UNITED STATES V. MOSLEY, 238 U.S. 383, 386, TO BE "AS OPEN TO
PROTECTION BY CONGRESS AS THE RIGHT TO PUT A BALLOT IN A BOX."  SEE
ALSO UNITED STATES V. CLASSIC, SUPRA, 324-325; UNITED STATES V. SAYLOR,
322 U.S. 385. 

CHIEF JUSTICE HOLT STATED IN ASHBY V. WHITE, 2 LD. RAYM.  938, 956 (A
SUIT IN WHICH DAMAGES WERE AWARDED AGAINST ELECTION OFFICIALS FOR NOT
ACCEPTING THE PLAINTIFF'S VOTE, 3 LD. RAYM.  320) THAT: 

"TO ALLOW THIS ACTION WILL MAKE PUBLIC OFFICERS MORE CAREFUL TO
OBSERVE THE CONSTITUTION OF CITIES AND BOROUGHS, AND NOT TO BE SO
PARTIAL AS THE COMMONLY ARE IN ALL ELECTIONS, WHICH IS INDEED A GREAT
AND GROWING MISCHIEF, AND TENDS TO THE PREJUDICE OF THE PEACE OF THE
NATION." 

THE SAME PROPHYLACTIC EFFECT WILL BE PRODUCED HERE, AS ENTRENCHED
POLITICAL REGIMES MAKE OTHER RELIEF AS ILLUSORY IN THIS CASE AS A
PETITION TO PARLIAMENT IN ASHBY V. WHITE WOULD HAVE BEEN.  (FN4) 

INTRUSION OF THE FEDERAL GOVERNMENT INTO THE ELECTION MACHINERY OF
THE STATES HAS TAKEN NUMEROUS FORMS - INVESTIGATIONS (HANNAH V. LARCHE,
363 U.S. 420); CRIMINAL PROCEEDINGS (EX PARTE SIEBOLD, SUPRA; EX PARTE
YARBROUGH, SUPRA; UNITED STATES V. MOSLEY, SUPRA; UNITED STATES V.
CLASSIC, SUPRA); COLLECTION OF PENALTIES (SMITH V. ALLWRIGHT, SUPRA);
SUITS FOR DECLARATORY RELIEF AND FOR AN INJUNCTION (TERRY V. ADAMS,
SUPRA); SUITS BY THE UNITED STATES UNDER THE CIVIL RIGHTS ACT TO ENJOIN
DISCRIMINATORY PRACTICES.  UNITED STATES V. RAINES, 362 U.S. 17. 

AS STATED BY JUDGE MCLAUGHLIN IN DYER V. KAZUHISA ABE, 138 F. SUPP.
220, 236 (AN APPORTIONMENT CASE IN HAWAII WHICH WAS REVERSED AND
DISMISSED AS MOOT, 256 F.2D 728): 

"THE WHOLE THRUST OF TODAY'S LEGAL CLIMATE IS TO END UNCONSTITUTIONAL
DISCRIMINATION.  IT IS LUDICROUS TO PRECLUDE JUDICIAL RELIEF WHEN A
MAINSPRING OF REPRESENTATIVE GOVERNMENT IS IMPAIRED.  LEGISLATORS HAVE
NO IMMUNITY FROM THE CONSTITUTION.  THE LEGISLATURES OF OUR LAND SHOULD
BE MADE AS RESPONSIVE TO THE CONSTITUTION OF THE UNITED STATES AS ARE
THE CITIZENS WHO ELECT THE LEGISLATORS." 

WITH THE EXCEPTIONS OF COLEGROVE V. GREEN, 328 U.S. 549; MACDOUGALL
V. GREEN, 335 U.S. 281; SOUTH V. PETERS, 339 U.S. 276, AND THE
DECISIONS THEY SPAWNED, THE COURT HAS NEVER THOUGHT THAT PROTECTION OF
VOTING RIGHTS WAS BEYOND JUDICIAL COGNIZANCE.  TODAY'S TREATMENT OF
THOSE CASES REMOVES THE ONLY IMPEDIMENT TO JUDICIAL COGNIZANCE OF THE
CLAIMS STATED IN THE PRESENT COMPLAINT. 

THE JUSTICIABILITY OF THE PRESENT CLAIMS BEING ESTABLISHED, ANY
RELIEF ACCORDED CAN BE FASHIONED IN THE LIGHT OF WELL-KNOWN PRINCIPLES
OF EQUITY.  (FN5) 

FN1  I FEEL STRONGLY THAT MANY OF THE CASES CITED BY THE COURT AND
INVOLVING SO-CALLED "POLITICAL" QUESTIONS WERE WRONGLY DECIDED. 

IN JOINING THE OPINION, I DO NOT APPROVE THOSE DECISIONS BUT ONLY
CONSTRUE THE COURT'S OPINION IN THIS CASE AS STATING AN ACCURATE
HISTORICAL ACCOUNT OF WHAT THE PRIOR CASES HAVE HELD. 

FN2  THE STATEMENTS IN LUTHER V. BORDEN, 7 HOW.  1, 42, THAT THIS
GUARANTY IS ENFORCEABLE ONLY BY CONGRESS OR THE CHIEF EXECUTIVE IS NOT
MAINTAINABLE.  OF COURSE THE CHIEF EXECUTIVE, NOT THE COURT, DETERMINES
HOW A STATE WILL BE PROTECTED AGAINST INVASION.  OF COURSE EACH HOUSE
OF CONGRESS, NOT THE COURT, IS "THE JUDGE OF THE ELECTIONS, RETURNS,
AND QUALIFICATIONS OF ITS OWN MEMBERS."  ARTICLE I, SECTION 5, CLAUSE
1.  BUT THE ABDICATION OF ALL JUDICIAL FUNCTIONS RESPECTING VOTING
RIGHTS (7 HOW., AT 41), HOWEVER JUSTIFIED BY THE PECULIARITIES OF THE
CHARTER FORM OF GOVERNMENT IN RHODE ISLAND AT THE TIME OF DORR'S
REBELLION, STATES NO GENERAL PRINCIPLE.  IT INDEED IS CONTRARY TO THE
CASES DISCUSSED IN THE BODY OF THIS OPINION - THE MODERN DECISIONS OF
THE COURT THAT GIVE THE FULL PANOPLY OF JUDICIAL PROTECTION TO VOTING
RIGHTS.  TODAY WE WOULD NOT SAY WITH CHIEF JUSTICE TANEY THAT IT IS NO
PART OF THE JUDICIAL FUNCTION TO PROTECT THE RIGHT TO VOTE OF THOSE "TO
WHOM IT IS DENIED BY THE WRITTEN AND ESTABLISHED CONSTITUTION AND LAWS
OF THE STATE."  IBID. 

MOREOVER, THE COURT'S REFUSAL TO EXAMINE THE LEGALITY OF THE REGIME
OF MARTIAL LAW WHICH HAD BEEN LAID UPON RHODE ISLAND (ID., AT 45-46) IS
INDEFENSIBLE, AS MR. JUSTICE WOODBURY MAINTAINED IN HIS DISSENT.  ID.,
AT 59 ET SEQ. TODAY WE WOULD ASK WITH HIM: "  ...  WHO COULD HOLD FOR A
MOMENT, WHEN THE WRIT OF HABEAS CORPUS CANNOT BE SUSPENDED BY THE
LEGISLATURE ITSELF, EITHER IN THE GENERAL GOVERNMENT OR MOST OF THE
STATES, WITHOUT AN EXPRESS CONSTITUTIONAL PERMISSION, THAT ALL OTHER
WRITS AND LAWS COULD BE SUSPENDED, AND MARTIAL LAW SUBSTITUTED FOR THEM
OVER THE WHOLE STATE OR COUNTRY, WITHOUT ANY EXPRESS CONSTITUTIONAL
LICENSE TO THAT EFFECT, IN ANY EMERGENCY?"  ID., AT 67. 

JUSTICE WOODBURY WENT ON TO SAY: 

"IT WOULD BE ALARMING ENOUGH TO SANCTION HERE AN UNLIMITED POWER,
EXERCISED EITHER BY LEGISLATURES, OR THE EXECUTIVE, OR COURTS, WHEN ALL
OUR GOVERNMENTS ARE THEMSELVES GOVERNMENTS OF LIMITATIONS AND CHECKS,
AND OF FIXED AND KNOWN LAWS, AND THE PEOPLE A RACE ABOVE ALL OTHERS
JEALOUS OF ENCROACHMENTS BY THOSE IN POWER.  AND IT IS FAR BETTER THAT
THOSE PERSONS SHOULD BE WITHOUT THE PROTECTION OF THE ORDINARY LAWS OF
THE LAND WHO DISREGARD THEM IN AN EMERGENCY, AND SHOULD LOOK TO A
GRATEFUL CONTRY FOR INDEMNITY AND PARDON, THAN TO ALLOW, BEFOREHAND,
THE WHOLE FRAME OF JURISPRUDENCE TO BE OVERTURNED, AND EVERY THING
PLACED AT THE MERCY OF THE BAYONET. 

"NO TRIBUNAL OR DEPARTMENT IN OUR SYSTEM OF GOVERNMENTS EVER CAN BE
LAWFULLY AUTHORIZED TO DISPENSE WITH THE LAWS, LIKE SOME OF THE
TYRANNICAL STUARTS, OR TO REPEAL, OR ABOLISH, OR SUSPEND THE WHOLE BODY
OF THEM; OR, IN OTHER WORDS, APPOINT AN UNRESTRAINED MILITARY DICTATOR
AT THE HEAD OF ARMED MEN. 

"WHATEVER STRETCHES OF SUCH POWER MAY BE VENTURED ON IN GREAT CRISES,
THEY CANNOT BE UPHELD BY THE LAWS, AS THEY PROSTRATE THE LAWS AND RIDE
TRIUMPHANT OVER AND BEYOND THEM, HOWEVER THE ASSEMBLY OF RHODE ISLAND,
UNDER THE EXIGENCY, MAY HAVE HASTILY SUPPOSED THAT SUCH A MEASURE IN
THIS INSTANCE WAS CONSTITUTIONAL.  IT IS BUT A BRANCH OF THE
OMNIPOTENCE CLAIMED BY PARLIAMENT TO PASS BILLS OF ATTAINDER, BELONGING
TO THE SAME DANGEROUS AND ARBITRARY FAMILY WITH MARTIAL LAW."  ID., AT
69-70. 

WHAT HE WROTE WAS LATER TO BECOME THE TRADITION, AS EXPRESSED BY
CHIEF JUSTICE HUGHES IN STERLING V. CONSTANTIN, 287 U.S. 378, 401:
"WHAT ARE THE ALLOWABLE LIMITS OF MILITARY DISCRETION, AND WHETHER OR
NOT THEY HAVE BEEN OVERSTEPPED IN A PARTICULAR CASE, ARE JUDICIAL
QUESTIONS."    "FN3  THE CATEGORY OF THE "POLITICAL" QUESTION IS, IN MY
VIEW, NARROWER THAN THE DECIDED CASES INDICATE.  "EVEN THE ENGLISH
COURTS HAVE HELD THAT A RESOLUTION OF ONE HOUSE OF PARLIAMENT DOES NOT
CHANGE THE LAW (STOCKDALE V. HANSARD (1839), 9 A.&E. 1; AND BOWLES V.
BANK OF ENGLAND (NO. 2)(1913) 1 CH. 57), AND THESE DECISIONS IMPLY THAT
THE HOUSE OF COMMONS ACTING ALONE DOES NOT CONSTITUTE THE 'PARLIAMENT'
RECOGNISED BY THE ENGLISH COURTS."  103 SOL.  JOUR.  995, 996.  THE
COURT IN BOWLES V. BANK OF ENGLAND, (1913) 1 CH. 57, 84-85, STATED:
"BY THE STATUTE 1 W.&M., USUALLY KNOWN AS THE BILL OF RIGHTS, IT WAS
FINALLY SETTLED THAT THERE COULD BE NO TAXATION IN THIS COUNTRY EXCEPT
UNDER AUTHORITY OF AN ACT OF PARLIAMENT.  THE BILL OF RIGHTS STILL
REMAINS UNREPEALED, AND NO PRACTICE OR CUSTOM, HOWEVER PROLONGED, OR
HOWEVER ACQUIESCED IN ON THE PART OF THE SUBJECT, CAN BE RELIED ON BY
THE CROWN AS JUSTIFYING ANY INFRINGEMENT OF ITS PROVISIONS.  IT FOLLOWS
THAT, WITH REGARD TO THE POWERS OF THE CROWN TO LEVY TAXATION, NO
RESOLUTION, EITHER OF THE COMMITTEE FOR WAYS AND MEANS OR OF THE HOUSE
ITSELF, HAS ANY LEGAL EFFECT WHATEVER.  SUCH RESOLUTIONS ARE
NECESSITATED BY A PARLIAMENTARY PROCEDURE ADOPTED WITH A VIEW TO THE
PROTECTION OF THE SUBJECT AGAINST THE HASTY IMPOSITION OF TAXES, AND IT
WOULD BE STRANGE TO FIND THEM RELIED ON AS JUSTIFYING THE CROWN IN
LEVYING A TAX BEFORE SUCH TAX IS ACTUALLY IMPOSED BY ACT OF
PARLIAMENT." 

IN THE POCKET VETO CASE, 279 U.S. 655, THE COURT UNDERTOOK A REVIEW
OF THE VETO PROVISIONS OF THE CONSTITUTION AND CONCLUDED THAT THE
MEASURE IN LITIGATION HAD NOT BECOME A LAW.  CF.  COLEMAN V. MILLER,
307 U.S. 433. 

GEORGIA V. STANTON, 6 WALL.  50, INVOLVED THE APPLICATION OF THE
RECONSTRUCTION ACTS TO GEORGIA - LAWS WHICH DESTROYED BY FORCE THE
INTERNAL REGIME OF THAT STATE.  YET THE COURT REFUSED TO TAKE
JURISDICTION.  THAT QUESTION WAS NO MORE "POLITICAL" THAN A HOST OF
OTHERS WE HAVE ENTERTAINED.  SEE, E.G., PENNSYLVANIA V. WEST VIRGINIA,
262 U.S. 553; YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579;
ALABAMA V. TEXAS, 347 U.S. 272. 

TODAY WOULD THIS COURT HOLD NONJUSTICIABLE OR "POLITICAL" A SUIT TO
ENJOIN A GOVERNOR WHO, LIKE FIDEL CASTRO, TAKES EVERYTHING INTO HIS OWN
HANDS AND SUSPENDS ALL ELECTION LAWS? 

GEORGIA V. STANTON, SUPRA, EXPRESSES A PHILOSOPHY AT WAR WITH EX
PARTE MILLIGAN, 4 WALL.  2, AND DUNCAN V. KAHANAMOKU, 327 U.S. 304. 
THE DOMINANCE OF THE CIVILIAN AUTHORITY HAS BEEN EXPRESSED FROM THE
BEGINNING.  SEE WISE V. WITHERS, 3 CRANCH 331, 337; STERLING V.
CONSTANTIN, SUPRA, NOTE 2. 

FN4  WE ARE TOLD BY THE NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS
IN AN AMICUS BRIEF: 

"REGARDLESS OF THE FACT IN THE LAST TWO DECADES THE UNITED STATES HAS
BECOME A PREDOMINATELY URBAN COUNTRY WHERE WELL OVER TWO-THIRDS OF THE
POPULATION NOW LIVES IN CITIES OR SUBURBS, POLITICAL REPRESENTATION IN
THE MAJORITY OF STATE LEGISLATURES IS 50 OR MORE YEARS BEHIND THE
TIMES.  APPORTIONMENTS MADE WHEN THE GREATER PART OF THE POPULATION WAS
LOCATED IN RURAL COMMUNITIES ARE STILL DETERMINING AND UNDERMINING OUR
ELECTIONS. 

"AS A CONSEQUENCE, THE MUNICIPALITY OF 1960 IS FORCED TO FUNCTION IN
A HORSE AND BUGGY ENVIRONMENT WHERE THERE IS LITTLE POLITICAL
RECOGNITION OF THE HEAVY DEMANDS OF AN URBAN POPULATION.  THESE DEMANDS
WILL BECOME EVEN GREATER BY 1970 WHEN SOME 150 MILLION PEOPLE WILL BE
LIVING IN URBAN AREAS. 

"THE NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS HAS FOR MANY YEARS
RECOGNIZED THE WIDE-SPREAD COMPLAINT THAT BY FAR THE GREATEST
PREPONDERANCE OF STATE REPRESENTATIVES AND SENATORS ARE FROM RURAL
AREAS WHICH, IN THE MAIN, FAIL TO BECOME VITALLY INTERESTED IN THE
INCREASING DIFFICULTIES NOW FACING URBAN ADMINISTRATORS. 

"SINCE WORLD WAR II, THE EXPLOSION IN CITY AND SUBURBAN POPULATION
HAS CREATED INTENSE LOCAL PROBLEMS IN EDUCATION, TRANSPORTATION, AND
HOUSING.  ADEQUATE HANDLING OF THESE PROBLEMS HAS NOT BEEN POSSIBLE TO
A LARGE EXTENT, DUE CHIEFLY TO THE POLITICAL WEAKNESS OF
MUNICIPALITIES.  THIS SITUATION IS DIRECTLY ATTRIBUTABLE TO
CONSIDERABLE UNDER-REPRESENTATION OF CITIES IN THE LEGISLATURES OF MOST
STATES."  AMICUS BRIEF, PP. 2-3. 

FN5  THE RECENT RULING BY THE IOWA SUPREME COURT THAT A LEGISLATURE,
THOUGH ELECTED UNDER AN UNFAIR APPORTIONMENT SCHEME, IS NONETHELESS A
LEGISLATURE EMPOWERED TO ACT (CEDAR RAPIDS V. COX, 252 IOWA 948, 964,
108 N.W.2D 253, 262-263; CF. KIDD V. MCCANLESS, 200 TENN. 273, 292
S.W.2D 40) IS PLAINLY CORRECT. 

THERE NEED BE NO FEAR OF A MORE DISASTROUS COLLISION BETWEEN FEDERAL
AND STATE AGENCIES HERE THAN WHERE A FEDERAL COURT ENJOINS
GERRYMANDERING BASED ON RACIAL LINES.  SEE GOMILLION V. LIGHTFOOT,
SUPRA. 

THE DISTRICT COURT NEED NOT UNDERTAKE A COMPLETE REAPPORTIONMENT.  IT
MIGHT POSSIBLY ACHIEVE THE GOAL OF SUBSTANTIAL EQUALITY MERELY BY
DIRECTING RESPONDENT TO ELIMINATE THE EGREGIOUS INJUSTICES.  OR ITS
CONCLUSION THAT REAPPORTIONMENT SHOULD BE MADE MAY IN ITSELF STIMULATE
LEGISLATIVE ACTION.  THAT WAS THE RESULT IN ASBURY PARK PRESS V.
WOOLLEY, 33 N.J. 1, 161 A.2D 705, WHERE THE STATE COURT RULED IT HAD
JURISDICTION: 

"IF BY REASON OF PASSAGE OF TIME AND CHANGING CONDITIONS THE
REAPPORTIONMENT STATUTE NO LONGER SERVES ITS ORIGINAL PURPOSE OF
SECURING TO THE VOTER THE FULL CONSTITUTIONAL VALUE OF HIS FRANCHISE,
AND THE LEGISLATIVE BRANCH FAILS TO TAKE APPROPRIATE RESTORATIVE
ACTION, THE DOORS OF THE COURTS MUST BE OPEN TO HIM.  THE LAW-MAKING
BODY CANNOT BY INACTION ALTER THE CONSTITUTIONAL SYSTEM UNDER WHICH IT
HAS ITS OWN EXISTENCE."  33 N.J., AT 14, 161 A.2D, AT 711.  THE COURT
WITHHELD ITS DECISION ON THE MERITS IN ORDER THAT THE LEGISLATURE MIGHT
HAVE AN OPPORTUNITY TO CONSIDER ADOPTION OF A REAPPORTIONMENT ACT.  FOR
THE SEQUEL SEE APPLICATION OF LAMB, 67 N.J. SUPER.  39, 46-47, 169 A.2D
822, 825-826. 

REAPPORTIONMENT WAS ALSO THE RESULT IN MAGRAW V. DONOVAN, 159 F.
SUPP. 901, WHERE A FEDERAL THREE-JUDGE DISTRICT COURT TOOK
JURISDICTION, SAYING, 163 F. SUPP. 184, 187: 

"HERE IT IS THE UNMISTAKABLE DUTY OF THE STATE LEGISLATURE TO
REAPPORTION ITSELF PERIODICALLY IN ACCORDANCE WITH RECENT POPULATION
CHANGES  ...  .  EARLY IN JANUARY 1959 THE 61ST SESSION OF THE
MINNESOTA LEGISLATURE WILL CONVENE, ALL OF THE MEMBERS OF WHICH WILL BE
NEWLY ELECTED ON NOVEMBER 4TH OF THIS YEAR.  THE FACTS WHICH HAVE BEEN
PRESENTED TO US WILL BE AVAILABLE TO THEM.  IT IS NOT TO BE PRESUMED
THAT THE LEGISLATURE WILL REFUSE TO TAKE SUCH ACTION AS IS NECESSARY TO
COMPLY WITH ITS DUTY UNDER THE STATE CONSTITUTION.  WE DEFER DECISION
ON ALL THE ISSUES PRESENTED (INCLUDING THAT OF THE POWER OF THIS COURT
TO GRANT RELIEF), IN ORDER TO AFFORD THE LEGISLATURE FULL OPPORTUNITY
TO 'HEED THE CONSTITUTIONAL MANDATE TO REDISTRICT.'"  SEE 177 F. SUPP.
803, WHERE THE CASE WAS DISMISSED AS MOOT, THE STATE LEGISLATURE HAVING
ACTED. 

MR. JUSTICE CLARK, CONCURRING. 

ONE EMERGING FROM THE RASH OF OPINIONS WITH THEIR ACCOMPANYING
CLASHING OF VIEWS MAY WELL FIND HIMSELF SUFFERING A MENTAL BLINDNESS. 
THE COURT HOLDS THAT THE APPELLANTS HAVE ALLEGED A CAUSE OF ACTION. 
HOWEVER, IT REFUSES TO AWARD RELIEF HERE - ALTHOUGH THE FACTS ARE
UNDISPUTED - AND FAILS TO GIVE THE DISTRICT COURT ANY GUIDANCE
WHATEVER.  ONE DISSENTING OPINION, BURSTING WITH WORDS THAT GO THROUGH
SO MUCH AND CONCLUDE WITH SO LITTLE, CONTEMNS THE MAJORITY ACTION AS "A
MASSIVE REPUDIATION OF THE EXPERIENCE OF OUR WHOLE PAST."  ANOTHER
DESCRIBES THE COMPLAINT AS MERELY ASSERTING CONCLUSORY ALLEGATIONS THAT
TENNESSEE'S APPORTIONMENT IS "INCORRECT," "ARBITRARY," "OBSOLETE," AND
"UNCONSTITUTIONAL."  I BELIEVE IT CAN BE SHOWN THAT THIS CASE IS
DISTINGUISHABLE FROM EARLIER CASES DEALING WITH THE DISTRIBUTION OF
POLITICAL POWER BY A STATE, THAT A PATENT VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION HAS BEEN SHOWN, AND
THAT AN APPROPRIATE REMEDY MAY BE FORMULATED. 

                                               I. 

I TAKE THE LAW OF THE CASE FROM MACDOUGALL V. GREEN, 335 U.S. 281
(1948), WHICH INVOLVED AN ATTACK UNDER THE EQUAL PROTECTION CLAUSE UPON
AN ILLINOIS ELECTION STATUTE.  THE COURT DECIDED THAT CASE ON ITS
MERITS WITHOUT HINDRANCE FROM THE "POLITICAL QUESTION" DOCTRINE. 
ALTHOUGH THE STATUTE UNDER ATTACK WAS UPHELD, IT IS CLEAR THAT THE
COURT BASED ITS DECISION UPON THE DETERMINATION THAT THE STATUTE
REPRESENTED A RATIONAL STATE POLICY.  IT STATED: 

"IT WOULD BE STRANGE INDEED, AND DOCTRINAIRE, FOR THIS COURT,
APPLYING SUCH BROAD CONSTITUTIONAL CONCEPTS AS DUE PROCESS AND EQUAL
PROTECTION OF THE LAWS, TO DENY A STATE THE POWER TO ASSURE A PROPER
DIFFUSION OF POLITICAL INITIATIVE AS BETWEEN ITS THINLY POPULATED
COUNTIES AND THOSE HAVING CONCENTRATED MASSES, IN VIEW OF THE FACT THAT
THE LATTER HAVE PRACTICAL OPPORTUNITIES FOR EXERTING THEIR POLITICAL
WEIGHT AT THE POLLS NOT AVAILABLE TO THE FORMER."  ID., AT 284. 

THE OTHER CASES UPON WHICH MY BRETHREN DWELL ARE ALL DISTINGUISHABLE
OR INAPPOSITE.  THE WIDELY HERALDED CASE OF COLEGROVE V. GREEN, 328
U.S. 549 (1946), WAS ONE NOT ONLY IN WHICH THE COURT WAS BOBTAILED BUT
IN WHICH THERE WAS NO MAJORITY OPINION.  INDEED, EVEN THE "POLITICAL
QUESTION" POINT IN MR. JUSTICE FRANKFURTER'S OPINION WAS NO MORE THAN
AN ALTERNATIVE GROUND.  (FN1)  MOREOVER, THE APPELLANTS DID NOT PRESENT
AN EQUAL PROTECTION ARGUMENT.  (FN2)  WHILE IT HAS SERVED AS A MOTHER
HUBBARD TO MOST OF THE SUBSEQUENT CASES, I FEEL IT WAS IN THAT RESPECT
ILLCAST AND FOR ALL OF THESE REASONS PUT IT TO ONE SIDE.  (FN3)
LIKEWISE, I DO NOT CONSIDER THE GUARANTY CLAUSE CASES BASED ON ART. I,
SEC.4, OF THE CONSTITUTION, BECAUSE IT IS NOT INVOKED HERE AND IT
INVOLVES DIFFERENT CRITERIA, AS THE COURT'S OPINION INDICATES.  CASES
RESTING ON VARIOUS OTHER CONSIDERATIONS NOT PRESENT HERE, SUCH AS
RADFORD V. GARY, 352 U.S. 991 (1957)(LACK OF EQUITY); KIDD V.
MCCANLESS, 352 U.S. 920 (1956)(ADEQUATE STATE GROUNDS SUPPORTING THE
STATE JUDGMENT); ANDERSON V. JORDAN, 343 U.S. 912 (1952)(ADEQUATE STATE
GROUNDS); REMMEY V. SMITH, 342 U.S. 916 (1952)(FAILURE TO EXHAUST STATE
PROCEDURES), ARE OF COURSE NOT CONTROLLING.  FINALLY, THE GEORGIA
COUNTY-UNIT-SYSTEM CASES, SUCH AS SOUTH V. PETERS, 339 U.S. 276 (1950),
REFLECT THE VIEWPOINT OF MACDOUGALL, I.E., TO REFRAIN FROM INTERVENING
WHERE THERE IS SOME RATIONAL POLICY BEHIND THE STATE'S SYSTEM.  (FN4)

                              II. 

THE CONTROLLING FACTS CANNOT BE DISPUTED.  IT APPEARS FROM THE RECORD
THAT 37% OF THE VOTERS OF TENNESSEE ELECT 20 OF THE 33 SENATORS WHILE
40% OF THE VOTERS ELECT 63 OF THE 99 MEMBERS OF THE HOUSE.  BUT THIS
MIGHT NOT ON ITS FACE BE AN "INVIDIOUS DISCRIMINATION," WILLIAMSON V.
LEE OPTICAL OF OKALHOMA, 348 U.S. 483, 489 (1955), FOR A "STATUTORY
DISCRIMINATION WILL NOT BE SET ASIDE IF ANY STATE OF FACTS REASONABLY
MAY BE CONCEIVED TO JUSTIFY IT."  MCGOWAN V. MARYLAND, 336 U.S. 420,
426 (1961). 

IT IS TRUE THAT THE APPORTIONMENT POLICY INCORPORATED IN TENNESSEE'S
CONSTITUTION, I.E., STATE-WIDE NUMERICAL EQUALITY OF REPRESENTATION
WITH CERTAIN MINOR QUALIFICATIONS, (FN5) IS A RATIONAL ONE.  ON A
COUNTY-BY-COUNTY COMPARISON A DISTRICTING PLAN BASED THEREON NATURALLY
WILL HAVE DISPARITIES IN REPRESENTATION DUE TO THE QUALIFICATIONS.  BUT
THIS TO MY MIND DOES NOT RAISE CONSTITUTIONAL PROBLEMS, FOR THE OVERALL
POLICY IS REASONABLE.  HOWEVER, THE ROOT OF THE TROUBLE IS NOT IN
TENNESSEE'S CONSTITUTION, FOR ADMITTEDLY ITS POLICY HAS NOT BEEN
FOLLOWED.  THE DISCRIMINATION LIES IN THE ACTION OF TENNESSEE'S
ASSEMBLY IN ALLOCATING LEGISLATIVE SEATS TO COUNTIES OR DISTRICTS
CREATED BY IT.  TRY AS ONE MAY, TENNESSEE'S APPORTIONMENT JUST CANNOT
BE MADE TO FIT THE PATTERN CUT BY ITS CONSTITUTION.  THIS WAS THE
FINDING OF THE DISTRICT COURT.  THE POLICY OF THE CONSTITUTION REFERRED
TO BY THE DISSENTERS, THEREFORE, IS OF NO RELEVANCE HERE.  WE MUST
EXAMINE WHAT THE ASSEMBLY HAS DONE.  (FN6)  THE FREQUENCY AND MAGNITUDE
OF THE INEQUALITIES IN THE PRESENT DISTRICTING ADMIT OF NO POLICY
WHATEVER.  AN EXAMINATION OF TABLE I ACCOMPANYING THIS OPINION, POST,
P. 262, CONCLUSIVELY REVEALS THAT THE APPORTIONMENT PICTURE IN
TENNESSEE IS A TOPSY-TURVICAL OF GIGANTIC PROPORTIONS.  THIS IS NOT TO
SAY THAT SOME OF THE DISPARITY CANNOT BE EXPLAINED, BUT WHEN THE ENTIRE
TABLE IS EXAMINED - COMPARING THE VOTING STRENGTH OF COUNTIES OF LIKE
POPULATION AS WELL AS CONTRASTING THAT OF THE SMALLER WITH THE LARGER
COUNTIES - IT LEAVES BUT ONE CONCLUSION, NAMELY THAT TENNESSEE'S
APPORTIONMENT IS A CRAZY QUILT WITHOUT RATIONAL BASIS.  AT THE RISK OF
BEING ACCUSED OF PICKING OUT A FEW OF THE HORRIBLES I SHALL ALLUDE TO A
SERIES OF EXAMPLES THAT ARE TAKEN FROM TABLE I. 

AS IS ADMITTED, THERE IS A WIDE DISPARITY OF VOTING STRENGTH BETWEEN
THE LARGE AND SMALL COUNTIES.   SOME SAMPLES ARE:  MOORE COUNTY HAS A
TOTAL REPRESENTATION OF TWO (FN7) WITH A POPULATION (2,340) OF ONLY ONE
ELEVENTH OF RUTHERFORD COUNTY (25,316) WITH THE SAME REPRESENTATION;
DECATUR COUNTY (5,563) HAS THE SAME REPRESENTATION AS CARTER (23,303)
THOUGH THE LATTER HAS FOUR TIMES THE POPULATION; LIKEWISE, LOUDON
COUNTY (13,264), HOUSTON (3,084), AND ANDERSON COUNTY (33,990) HAVE THE
SAME REPRESENTATION, I.E., 1.25 EACH.  BUT IT IS SAID THAT IN THIS
ILLUSTRATION ALL OF THE UNDER-REPRESENTED COUNTIES CONTAIN
MUNICIPALITIES OF OVER 10,000 POPULATION AND THEY THEREFORE SHOULD BE
INCLUDED UNDER THE "URBAN" CLASSIFICATION, RATIONALIZING THIS DISPARITY
AS AN ATTEMPT TO EFFECT A RURAL-URBAN POLITICAL BALANCE.  BUT IN SO
DOING ONE IS CAUGHT UP IN THE BACKLASH OF HIS OWN BULL WHIP, FOR MANY
COUNTIES HAVE MUNICIPALITIES WITH A POPULATION EXCEEDING 10,000, YET
THE SAME INVIDIOUS DISCRIMINATION IS PRESENT.  FOR EXAMPLE:    COUNTY
                      POPULATION REPRESENTATION 

CARTER                                23,303
1.10 

MAURY       24,556                      2.25 

WASHINGTON                   36,967                      1.93 

MADISON                               37,245
3.50 

LIKEWISE, COUNTIES WITH NO MUNICIPALITY OF OVER 10,000 SUFFER A
SIMILAR DISCRIMINATION: 

COUNTY       POPULATION               REPRESENTATION 

GRUNDY                           6,540                      0.95 
CHESTER                                6,391  2.00 

CUMBERLAND                             9,593              0.63 

CROCKETT                               9,676
2.00 

LOUDON          13,264                      1.25 

FAYETTE                      13,577                      2.50 

THIS COULD NOT BE AN EFFORT TO ATTAIN POLITICAL BALANCE BETWEEN RURAL
AND URBAN POPULATIONS.  SINCE DISCRIMINATION IS PRESENT AMONG COUNTIES
OF LIKE POPULATION, THE PLAN IS NEITHER CONSISTENT NOR RATIONAL.  IT
DISCRIMINATES HORIZONTALLY CREATING GROSS DISPARITIES BETWEEN RURAL
AREAS THEMSELVES AS WELL AS BETWEEN URBAN AREAS THEMSELVES, (FN8) STILL
MAINTAINING THE WIDE VERTICAL DISPARITY ALREADY POINTED OUT BETWEEN
RURAL AND URBAN. 

IT IS ALSO INSISTED THAT THE REPRESENTATION FORMULA USED ABOVE (SEE
N. 7) IS "PATENTLY DEFICIENT" BECAUSE "IT ELIMINATES FROM CONSIDERATION
THE RELATIVE VOTING POWER OF THE COUNTIES THAT ARE JOINED TOGETHER IN A
SINGLE ELECTION DISTRICT."  THIS IS A STRANGE CLAIM COMING FROM THOSE
WHO RELY ON THE PROPOSITION THAT "THE VOICE OF EVERY VOTER" NEED NOT
HAVE "APPROXIMATE EQUALITY."  INDEED, REPRESENTATIVE GOVERNMENT, AS
THEY SAY, IS NOT NECESSARILY ONE OF "BARE NUMBERS."  THE USE OF
FLOTERIAL DISTRICTS IN OUR POLITICAL SYSTEM IS NOT ORDINARILY BASED ON
THE THEORY THAT THE FLOTERIAL REPRESENTATIVE IS SPLINTERED AMONG THE
COUNTIES OF HIS DISTRICT PER RELATIVE POPULATION.  HIS FUNCTION IS TO
REPRESENT THE WHOLE DISTRICT.  HOWEVER, I SHALL MEET THE CHARGE ON ITS
OWN GROUND AND BY USE OF ITS "ADJUSTED 'TOTAL REPRESENTATION'" FORMULA
SHOW THAT THE PRESENT APPORTIONMENT IS LOCO.  FOR EXAMPLE, COMPARE SOME
"URBAN" AREAS OF LIKE POPULATION, USING THE HARLAN FORMULA: 

COUNTY                              POPULATION
REPRESENTATION 

WASHINGTON            36,967                       2.65 

MADISON                         37,245                       4.87 

CARTER                                23,303    1.48 

GREENE                                23,649                 2.05 

MAURY 24,556                       3.81 

COFFEE              13,406                       2.32 

HAMBLEN                           14,090                       1.07 

AND NOW, USING THE SAME FORMULA, COMPARE SOME SO-CALLED "RURAL" AREAS
OF LIKE POPULATION: 

COUNTY      POPULATION               REPRESENTATION 

MOORE                          2,340                       1.23 

PICKETT                                2,565     .22 

STEWART                                5,238                 1.60 

CHEATHAM  5,263                        .74 

CHESTER               6,391                       1.36 

GRUNDY                            6,540                        .69 

SMITH                                  8,731      2.04 

UNICOI                                 8,787                   0.40 

AND FOR COUNTIES WITH SIMILAR REPRESENTATION BUT WITH GROSS
DIFFERENCES IN POPULATION, TAKE: 

COUNTY                              POPULATION
REPRESENTATION 

SULLIVAN                              55,712                    4.07 

MAURY    24,556                       3.81 

BLOUNT                 30,353                       2.12 

COFFEE                              13,406
2.32 

THESE CANNOT BE "DISTORTED EFFECTS," FOR HERE THE SAME FORMULA
PROPOSED BY THE DISSENTERS IS USED AND THE RESULT IS EVEN "A CRAZIER"
QUILT. 

THE TRUTH IS THAT - ALTHOUGH THIS CASE HAS BEEN HERE FOR TWO YEARS
AND HAS HAD OVER SIX HOURS' ARGUMENT (THREE TIMES THE ORDINARY CASE)
AND HAS BEEN MOST CAREFULLY CONSIDERED OVER AND OVER AGAIN BY US IN
CONFERENCE AND INDIVIDUALLY - NO ONE, NOT EVEN THE STATE NOR THE
DISSENTERS, HAS COME UP WITH ANY RATIONAL BASIS FOR TENNESSEE'S
APPORTIONMENT STATUTE. 

NO ONE - EXCEPT THE DISSENTERS ADVOCATING THE HARLAN "ADJUSTED 'TOTAL
REPRESENTATION'" FORMULA - CONTENDS THAT MATHEMATICAL EQUALITY AMONG
VOTERS IS REQUIRED BY THE EQUAL PROTECTION CLAUSE.  BUT CERTAINLY THERE
MUST BE SOME RATIONAL DESIGN TO A STATE'S DISTRICTING.  THE
DISCRIMINATION HERE DOES NOT FIT ANY PATTERN - AS I HAVE SAID, IT IS
BUT A CRAZY QUILT.  MY BROTHER HARLAN CONTENDS THAT OTHER PROPOSED
APPORTIONMENT PLANS CONTAIN DISPARITIES.  INSTEAD OF CHASING THOSE
RABBITS HE SHOULD FIRST PAUSE LONG ENOUGH TO MEET APPELLANTS' PROOF OF
DISCRIMINATION BY SHOWING THAT IN FACT THE PRESENT PLAN FOLLOWS A
RATIONAL POLICY.  NOT BEING ABLE TO DO THIS, HE MERELY COUNTERS WITH
SUCH GENERALITIES AS "CLASSIC LEGISLATIVE JUDGMENT," NO "SIGNIFICANT
DISCREPANCY," AND "DE MINIMIS DEPARTURES."  I SUBMIT THAT EVEN A CASUAL
GLANCE AT THE PRESENT APPORTIONMENT PICTURE SHOWS THESE CONCLUSIONS TO
BE ENTIRELY FANCIFUL.  IF PRESENT REPRESENTATION HAS A POLICY AT ALL,
IT IS TO MAINTAIN THE STATUS QUO OF INVIDIOUS DISCRIMINATION AT ANY
COST.  LIKE THE DISTRICT COURT, I CONCLUDE THAT APPELLANTS HAVE MET THE
BURDEN OF SHOWING "TENNESSEE IS GUILTY OF A CLEAR VIOLATION OF THE
STATE CONSTITUTION AND OF THE (FEDERAL) RIGHTS OF THE PLAINTIFFS  ...
." 

                                   III. 

ALTHOUGH I FIND THE TENNESSEE APPORTIONMENT STATUTE OFFENDS THE EQUAL
PROTECTION CLAUSE, I WOULD NOT CONSIDER INTERVENTION BY THIS COURT INTO
SO DELICATE A FIELD IF THERE WERE ANY OTHER RELIEF AVAILABLE TO THE
PEOPLE OF TENNESSEE.  BUT THE MAJORITY OF THE PEOPLE OF TENNESSEE HAVE
NO "PRACTICAL OPPORTUNITIES FOR EXERTING THEIR POLITICAL WEIGHT AT THE
POLLS" TO CORRECT THE EXISTING "INVIDIOUS DISCRIMINATION."  TENNESSEE
HAS NO INITIATIVE AND REFERENDUM.  I HAVE SEARCHED DILIGENTLY FOR OTHER
"PRACTICAL OPPORTUNITIES" PRESENT UNDER THE LAW.  I FIND NONE OTHER
THAN THROUGH THE FEDERAL COURTS.  THE MAJORITY OF THE VOTERS HAVE BEEN
CAUGHT UP IN A LEGISLATIVE STRAIT JACKET.  TENNESSEE HAS AN "INFORMED,
CIVICALLY MILITANT ELECTORATE" AND "AN AROUSED POPULAR CONSCIENCE," BUT
IT DOES NOT SEAR "THE CONSCIENCE OF THE PEOPLE'S REPRESENTATIVES." 
THIS IS BECAUSE THE LEGISLATIVE POLICY HAS RIVETED THE PRESENT SEATS IN
THE ASSEMBLY TO THEIR RESPECTIVE CONSTITUENCIES, AND BY THE VOTES OF
THEIR INCUMBENTS A REAPPORTIONMENT OF ANY KIND IS PREVENTED.  THE
PEOPLE HAVE BEEN REBUFFED AT THE HANDS OF THE ASSEMBLY; THEY HAVE TRIED
THE CONSTITUTIONAL CONVENTION ROUTE, BUT SINCE THE CALL MUST ORIGINATE
IN THE ASSEMBLY IT, TOO, HAS BEEN FRUITLESS.  THEY HAVE TRIED TENNESSEE
COURTS WITH THE SAME RESULT, (FN9) AND GOVERNORS HAVE FOUGHT THE TIDE
ONLY TO FLOUNDER.  IT IS SAID THAT THERE IS RECOURSE IN CONGRESS AND
PERHAPS THAT MAY BE, BUT FROM A PRACTICAL STANDPOINT THIS IS WITHOUT
SUBSTANCE.  TO DATE CONGRESS HAS NEVER UNDERTAKEN SUCH A TASK IN ANY
STATE.  WE THEREFORE MUST CONCLUDE THAT THE PEOPLE OF TENNESSEE ARE
STYMIED AND WITHOUT JUDICIAL INTERVENTION WILL BE SADDLED WITH THE
PRESENT DISCRIMINATION IN THE AFFAIRS OF THEIR STATE GOVERNMENT. 

                IV. 

FINALLY, WE MUST CONSIDER IF THERE ARE ANY APPROPRIATE MODES OF
EFFECTIVE JUDICIAL RELIEF.  THE FEDERAL COURTS ARE OF COURSE NOT FORUMS
FOR POLITICAL DEBATE, NOR SHOULD THEY RESOLVE THEMSELVES INTO STATE
CONSTITUTIONAL CONVENTIONS OR LEGISLATIVE ASSEMBLIES.  NOR SHOULD THEIR
JURISDICTION BE EXERCISED IN THE HOPE THAT SUCH A DECLARATION AS IS
MADE TODAY MAY HAVE THE DIRECT EFFECT OF BRINGING ON LEGISLATIVE ACTION
AND RELIEVING THE COURTS OF THE PROBLEM OF FASHIONING RELIEF.  TO MY
MIND THIS WOULD BE NOTHING LESS THAN BLACKJACKING THE ASSEMBLY INTO
REAPPORTIONING THE STATE.  IF JUDICIAL COMPETENCE WERE LACKING TO
FASHION AN EFFECTIVE DECREE, I WOULD DISMISS THIS APPEAL.  HOWEVER,
LIKE THE SOLICITOR GENERAL OF THE UNITED STATES, I SEE NO SUCH
DIFFICULTY IN THE POSITION OF THIS CASE.  ONE PLAN MIGHT BE TO START
WITH THE EXISTING ASSEMBLY DISTRICTS, CONSOLIDATE SOME OF THEM, AND
AWARD THE SEATS THUS RELEASED TO THOSE COUNTIES SUFFERING THE MOST
EGREGIOUS DISCRIMINATION.  OTHER POSSBILITIES ARE PRESENT AND MIGHT BE
MORE EFFECTIVE.  BUT THE PLAN HERE SUGGESTED WOULD AT LEAST RELEASE THE
STRANGLE HOLD NOW ON THE ASSEMBLY AND PERMIT IT TO REDISTRICT ITSELF. 

IN THIS REGARD THE APPELLANTS HAVE PROPOSED A PLAN BASED ON THE
RATIONALE OF STATE-WIDE EQUAL REPRESENTATION.  NOT BELIEVING THAT
NUMERICAL EQUALITY OF REPRESENTATION THROUGHOUT A STATE IS
CONSTITUTIONALLY REQUIRED, I WOULD NOT APPLY SUCH A STANDARD ALBEIT A
PERMISSIVE ONE.  NEVERTHELESS, THE DISSENTERS ATTACK IT BY THE
APPLICATION OF THE HARLAN "ADJUSTED 'TOTAL REPRESENTATION'" FORMULA. 
THE RESULT IS THAT SOME ISOLATED INEQUALITIES ARE SHOWN, BUT THIS IN
ITSELF DOES NOT MAKE THE PROPOSED PLAN IRRATIONAL OR PLACE IT IN THE
"CRAZY QUILT" CATEGORY.  SUCH INEQUALITIES, AS THE DISSENTERS POINT OUT
IN ATTEMPTING TO SUPPORT THE PRESENT APPORTIONMENT AS RATIONAL, ARE
EXPLAINABLE.  MOREOVER, THERE IS NO REQUIREMENT THAT ANY PLAN HAVE
MATHEMATICAL EXACTNESS IN ITS APPLICATION.  ONLY WHERE, AS HERE, THE
TOTAL PICTURE REVEALS INCOMMENSURABLES OF BOTH MAGNITUDE AND FREQUENCY
CAN IT BE SAID THAT THERE IS PRESENT AN INVIDIOUS DISCRIMINATION. 

IN VIEW OF THE DETAILED STUDY THAT THE COURT HAS GIVEN THIS PROBLEM,
IT IS UNFORTUNATE THAT A DECISION IS NOT REACHED ON THE MERITS.  THE
MAJORITY APPEARS TO HOLD, AT LEAST SUB SILENTIO, THAT AN INVIDIOUS
DISCRIMINATION IS PRESENT, BUT IT REMANDS TO THE THREE-JUDGE COURT FOR
IT TO MAKE WHAT IS CERTAIN TO BE THAT FORMAL DETERMINATION.  IT IS TRUE
THAT TENNESSEE HAS NOT FILED A FORMAL ANSWER.  HOWEVER, IT HAS FILED
VOLUMINOUS PAPERS AND MADE EXTENDED ARGUMENTS SUPPORTING ITS POSITION. 
AT NO TIME HAS IT BEEN ABLE TO CONTRADICT THE APPELLANTS' FACTUAL
CLAIMS; IT HAS OFFERED NO RATIONAL EXPLANATION FOR THE PRESENT
APPORTIONMENT; INDEED, IT HAS INDICATED THAT THERE ARE NONE KNOWN TO
IT. AS I HAVE EMPHASIZED, THE CASE PROCEEDED TO THE POINT BEFORE THE
THREE-JUDGE COURT THAT IT WAS ABLE TO FIND AN INVIDIOUS DISCRIMINATION
FACTUALLY PRESENT, AND THE STATE HAS NOT CONTESTED THAT HOLDING HERE. 
IN VIEW OF ALL THIS BACKGROUND I DOUBT IF ANYTHING MORE CAN BE OFFERED
OR WILL BE GAINED BY THE STATE ON REMAND, OTHER THAN TIME. 
NEVERTHELESS, NOT BEING ABLE TO MUSTER A COURT TO DISPOSE OF THE CASE
ON THE MERITS, I CONCUR IN THE OPINION OF THE MAJORITY AND ACQUIESCE IN
THE DECISION TO REMAND.  HOWEVER, IN FAIRNESS I DO THINK THAT TENNESSEE
IS ENTITLED TO HAVE MY IDEA OF WHAT IT FACES ON THE RECORD BEFORE US
AND THE TRIAL COURT SOME LIGHT AS TO HOW IT MIGHT PROCEED. 

AS JOHN RUTLEDGE (LATER CHIEF JUSTICE) SAID 175 YEARS AGO IN THE
COURSE OF THE CONSTITUTIONAL CONVENTION, A CHIEF FUNCTION OF THE COURT
IS TO SECURE THE NATIONAL RIGHTS.  (FN10)  ITS DECISION TODAY SUPPORTS
THE PROPOSITION FOR WHICH OUR FOREBEARS FOUGHT AND MANY DIED, NAMELY,
THAT TO BE FULLY CONFORMABLE TO THE PRINCIPLE OF RIGHT, THE FORM OF
GOVERNMENT MUST BE REPRESENTATIVE.  (FN11) THAT IS THE KEYSTONE UPON
WHICH OUR GOVERNMENT WAS FOUNDED AND LACKING WHICH NO REPUBLIC CAN
SURVIVE.  IT IS WELL FOR THIS COURT TO PRACTICE SELF-RESTRAINT AND
DISCIPLINE IN CONSTITUTIONAL ADJUDICATION, BUT NEVER IN ITS HISTORY
HAVE THOSE PRINCIPLES RECEIVED SANCTION WHERE THE NATIONAL RIGHTS OF SO
MANY HAVE BEEN SO CLEARLY INFRINGED FOR SO LONG A TIME.  NATIONAL
RESPECT FOR THE COURTS IS MORE ENHANCED THROUGH THE FORTHRIGHT
ENFORCEMENT OF THOSE RIGHTS RATHERN THAN BY RENDERING THEM NUGATORY
THROUGH THE INTERPOSITION OF SUBTERFUGES.  IN MY VIEW THE ULTIMATE
DECISION TODAY IS IN THE GREATEST TRADITION OF THIS COURT. 

                                          TABLE I.

                        PRESENT TOTAL      PRESENT TOTAL   PROPOSED
TOTAL

                              REPRESENTATION     REPRESENTATION
REPRESENTATION

                 USING            USING J.     (APPELLANTS' PLAN),

                1950 VOTING      J.CLARK'S  HARLAN'S       USING J.
HARLAN'S 

COUNTY            POPULATION       FORMULA            FORMULA
FORMULA 

VAN BUREN           2,039             .63                .23
.11 

MOORE               2,340            2.00              1.23
 .18 

PICKETT             2,565             .70                .22
  .24 

SEQUATCHIE          2,904             .63                .33
 .19 

MEIGS               3,039             .93                .48
  .17 

HOUSTON   3,084            1.25                .46
.24 

TROUSDALE           3,351            1.33                .43
  .12 

LEWIS               3,413 1.25                .39
.25 

PERRY      3,711            1.50                .71
.40 

BLEDSOE             4,198             .63  .49                 .24 
CLAY                4,528             .70                .40
.42 

UNION               4,600             .76                .37
  .45 

HANCOCK    4,710             .93                .62
.49 

STEWART             5,238            1.75               1.60
  .41 

CHEATHAM            5,263  1.33                .72
.20 

CANNON       5,341            2.00               1.43 .52 

DECATUR             5,563            1.10   .79                 .52 

LAKE                6,252     2.00               1.44
.41    CHESTER         6,391            2.00               1.36   .19 

GRUNDY              6,540             .95     .69
.43 

HUMPHREYS           6,588       1.25               1.39
.72 

JOHNSON            6,649            1.10                .42      .43 

JACKSON             6,719            1.50       1.43
.63 

DE KALB             6,984          2.00               1.56
.68 

BENTON              7,023            1.10               1.01
.66 

FENTRESS            7,057             .70           .62
.64 

GRAINGER            7,125             .93                .94
  .65 

WAYNE               7,176            1.25                .69
.76 

POLK                7,330            1.25              .68
.73 

HICKMAN             7,598            2.00               1.85
  .80 

MACON               7,974            1.33               1.01
.61 

MORGAN              8,308             .93                .59
  .75 

SCOTT  8,417             .76                .68                 .62 

SMITH               8,731            2.50               2.04
  .67 

UNICOI              8,787 .93                .40                 .63 

RHEA     8,937             .93               1.42
.21 

WHITE               9,244            1.43               1.69
  .90 

OVERTON             9,474   1.70               1.83
.89 

HARDIN        9,577            1.60               1.61  .93 

CUMBERLAND          9,593             .63   1.10                 .87 

CROCKETT            9,676      2.00               1.66
.63 

HENDERSON          10,199            1.50                .78     .96 

MARION             10,998            1.75      1.73
.72 

MARSHALL           11,288         2.50               2.28
.84 

DICKSON            11,294            1.75               2.29
1.23 

JEFFERSON          11,359            1.10          .87
1.03 

MCNAIRY            11,601            1.60               1.74
 1.13 

COCKE              12,572            1.60               1.46
.89 

SEVIER             12,793            1.60            1.47
.69 

CLAIBORNE          12,799            1.43               1.61
 1.34 

MONROE             12,884            1.75               1.68
1.30 

LOUDON             13,264            1.25                .28
  .52 

WARREN             13,337            1.75               1.89
 1.68 

COFFEE             13,406            2.00               2.32
 1.68 

HARDEMAN           13,565            1.60               1.86
 1.11 

FAYETTE   13,577            2.50               2.48
1.11 

HAYWOOD            13,934            2.50               2.52
 1.69 

WILLIAMSON         14,064  2.33               2.96
1.71 

HAMBLEN      14,090            1.10               1.07
1.67 

FRANKLIN           14,297            1.75  1.95                1.73 

LAUDERDALE         14,413     2.50               2.45
1.73 

BEDFORD         14,732            2.00               1.45   1.74 

LINCOLN            15,092            2.50     2.72
1.77 

HENRY              15,465        2.83               2.76
1.73 

LAWRENCE           15,847            2.00               2.22
1.81 

GILES              15,935            2.25        2.54
1.81 

TIPTON             15,944           3.00               1.68
1.13 

ROBERTSON          16,456            2.83               2.62
1.85 

WILSON             16,459            3.00           3.03
1.21 

CARROLL            16,472            2.83               2.88
 1.82 

HAWKINS            16,900            3.00               1.93
1.82 

PUTNAM             17,071            1.70              2.50
1.86 

CAMPBELL           17,477             .76               1.40
 1.94 

ROANE              17,639            1.75               1.26
1.30 

WEAKLEY            18,007            2.33               2.63
 1.85 

BRADLEY  18,273            1.25               1.67
1.92 

MCMINN             18,347            1.75               1.97
 1.92 

OBION              18,434 2.00               2.30
1.94 

DYER     20,062            2.00               2.36
2.32 

SUMNER             20,143            2.33 3.56                2.54 

CARTER             23,303    1.10               1.48
2.55 

GREENE        23,649            1.93               2.05  2.68 

MAURY              24,556            2.25    3.81
2.85 

RUTHERFORD         25,316       2.00               3.02
2.39 

MONTGOMERY         26,284            3.00               3.73
3.06 

GIBSON             29,832            5.00       5.00
2.86 

BLOUNT             30,353          1.60               2.12
2.19 

ANDERSON           33,990            1.25               1.30
3.62 

WASHINGTON         36,967            1.93          2.65
3.45 

MADISON            37,245            3.50               4.87
 3.69 

SULLIVAN           55,712            3.00               4.07
5.57 

HAMILTON          131,971            6.00             6.00
15.09 

KNOX              140,559            7.25               8.96
15.21 

DAVIDSON          211,930           12.50              12.93
21.57 

SHELBY            312,345           15.50              16.85
31.59 

FN1  THE OPINION STATED AT 551 THAT THE COURT "COULD ALSO DISPOSE OF
THIS CASE ON THE AUTHORITY OF WOOD V. BROOM (287 U.S. 1 (1932))."  WOOD
V. BROOM INVOLVED ONLY THE INTERPRETATION OF A CONGRESSIONAL
REAPPORTIONMENT ACT. 

FN2  SIMILARLY, THE EQUAL PROTECTION CLAUSE WAS NOT INVOKED IN
TEDESCO V. BOARD OF SUPERVISORS, 339 U.S. 940 (1950). 

FN3  I DO NOT READ THE LATER CASE OF COLEGROVE V. BARRETT, 330 U.S.
804 (1947), AS HAVING REJECTED THE EQUAL PROTECTION ARGUMENT ADOPTED
HERE.  THAT WAS MERELY A DISMISSAL OF AN APPEAL WHERE THE EQUAL
PROTECTION POINT WAS MENTIONED ALONG WITH ATTACKS UNDER THREE OTHER
CONSTITUTIONAL PROVISIONS, TWO CONGRESSIONAL ACTS, AND THREE STATE
CONSTITUTIONAL PROVISIONS. 

FN4  GEORGIA BASED ITS ELECTION SYSTEM ON A CONSISTENT COMBINATION OF
POLITICAL UNITS AND POPULATION, GIVING SIX UNIT VOTES TO THE EIGHT MOST
POPULOUS COUNTIES, FOUR UNIT VOTES TO THE 30 COUNTIES NEXT IN
POPULATION, AND TWO UNIT VOTES TO EACH OF THE REMAINING COUNTIES. 

FN5  SEE PART I OF THE APPENDIX TO MR. JUSTICE HARLAN'S DISSENT,
POST, P. 341. 

FN6  IT IS SUGGESTED THAT THE DISTRICTING IS NOT UNCONSTITUTIONAL
SINCE IT WAS ESTABLISHED BY A STATUTE THAT WAS CONSTITUTIONAL WHEN
PASSED SOME 60 YEARS AGO.  BUT MANY ASSEMBLY SESSIONS SINCE THAT TIME
HAVE DELIBERATELY REFUSED TO CHANGE THE ORIGINAL ACT, AND IN ANY EVENT
"A STATUTE CONSTITUTIONALLY VALID WHEN ENACTED MAY BECOME INVALID BY
CHANGE IN THE CONDITIONS TO WHICH IT IS APPLIED."  NASHVILLE, C. & ST.
L.R. CO. V. WALTERS, 294 U.S. 405, 415 (1935). 

FN7  "TOTAL REPRESENTATION" INDICATES THE COMBINED REPRESENTATION IN
THE STATE SENATE (33 MEMBERS) AND THE STATE HOUSE OF REPRESENTATIVES
(99 MEMBERS) IN THE ASSEMBLY OF TENNESSEE.  ASSUMING A COUNTY HAS ONE
REPRESENTATIVE, IT IS CREDITED IN THIS CALCULATION WITH 1/99. 
LIKEWISE, IF THE SAME COUNTY HAS ONE-THIRD OF A SENATE SEAT, IT IS
CREDITED WITH ANOTHER 1/99, AND THUS SUCH A COUNTY, IN OUR CALCULATION,
WOULD HAVE A "TOTAL REPRESENTATTION" OF TWO; IF A COUNTY HAS ONE
REPRESENTATIVE AND ONE-SIXTH OF A SENATE SEAT, IT IS CREDITED WITH
1.5/99, OR 1.50.  IT IS THIS LAST FIGURE THAT I USE HERE IN AN EFFORT
TO MAKE THE COMPARISONS CLEAR.  THE 1950 RATHER THAN THE 1960 CENSUS OF
VOTING POPULATION IS USED TO AVOID THE CHARGE THAT USE OF 1960
TABULATIONS MIGHT NOT HAVE ALLOWED SUFFICIENT TIME FOR THE STATE TO
ACT.  HOWEVER, THE 1960 PICTURE IS EVEN MORE IRRATIONAL THAN THE 1950
ONE. 

FN8  OF COURSE THIS WAS NOT THE CASE IN THE GEORGIA COUNTY UNIT
SYSTEM, SOUTH V. PETERS, SUPRA, OR THE ILLINOIS INITIATIVE PLAN,
MACDOUGALL V. GREEN, SUPRA, WHERE RECOGNIZED POLITICAL UNITS HAVING
INDEPENDENT SIGNIFICANCE WERE GIVEN MINIMUM POLITICAL WEIGHT. 

FN9  IT IS INTERESTING TO NOTE THAT STATE JUDGES OFTEN REST THEIR
DECISIONS ON THE GROUND THAT THIS COURT HAS PRECLUDED ADJUDICATION OF
THE FEDERAL CLAIM.  SEE, E.G., SCHOLLE V. SECRETARY OF STATE, 360 MICH.
1, 104 N.W.2D 63 (1960). 

FN10  1 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 124. 

FN11  KANT, PERPETUAL PEACE. 

MR. JUSTICE STEWART, CONCURRING. 

THE SEPARATE WRITINGS OF MY DISSENTING AND CONCURRING BROTHERS STRAY
SO FAR FROM THE SUBJECT OF TODAY'S DECISION AS TO CONVEY, I THINK, A
DISTRESSINGLY INACCURATE IMPRESSION OF WHAT THE COURT DECIDES.  FOR
THAT REASON, I THINK IT APPROPRIATE, IN JOINING THE OPINION OF THE
COURT, TO EMPHASIZE IN A FEW WORDS WHAT THE OPINION DOES AND DOES NOT
SAY. 

THE COURT TODAY DECIDES THREE THINGS AND NO MORE:  "(A) THAT THE
COURT POSSESSED JURISDICTION OF THE SUBJECT MATTER; (B) THAT A
JUSTICIABLE CAUSE OF ACTION IS STATED UPON WHICH APPELLANTS WOULD BE
ENTITLED TO APPROPRIATE RELIEF; AND (C)  ...  THAT THE APPELLANTS HAVE
STANDING TO CHALLENGE THE TENNESSEE APPORTIONMENT STATUTES."  ANTE, PP.
197-198. 

THE COMPLAINT IN THIS CASE ASSERTS THAT TENNESSEE'S SYSTEM OF
APPORTIONMENT IS UTTERLY ARBITRARY - WITHOUT ANY POSSIBLE JUSTIFICATION
IN RATIONALITY.  THE DISTRICT COURT DID NOT REACH THE MERITS OF THAT
CLAIM, AND THIS COURT QUITE PROPERLY EXPRESSES NO VIEW ON THE SUBJECT. 
CONTRARY TO THE SUGGESTION OF MY BROTHER HARLAN, THE COURT DOES NOT SAY
OR IMPLY THAT "STATE LEGISLATURES MUST BE SO STRUCTURED AS TO REFLECT
WITH APPROXIMATE EQUALITY THE VOICE OF EVERY VOTER."  POST, P. 332. 
THE COURT DOES NOT SAY OR IMPLY THAT THERE IS ANYTHING IN THE FEDERAL
CONSTITUTION "TO PREVENT A STATE, ACTING NOT IRRATIONALLY, FROM
CHOOSING ANY ELECTORAL LEGISLATIVE STRUCTURE IT THINKS BEST SUITED TO
THE INTERESTS, TEMPER, AND CUSTOMS OF ITS PEOPLE."  POST, P. 334.  AND
CONTRARY TO THE SUGGESTION OF MY BROTHER DOUGLAS, THE COURT MOST
ASSUREDLY DOES NOT DECIDE THE QUESTION, "MAY A STATE WEIGHT THE VOTE OF
ONE COUNTY OR ONE DISTRICT MORE HEAVILY THAN IT WEIGHTS THE VOTE IN
ANOTHER?"  ANTE, P. 244. 

IN MACDOUGALL V. GREEN, 335 U.S. 281, THE COURT HELD THAT THE EQUAL
PROTECTION CLAUSE DOES NOT "DENY A STATE THE POWER TO ASSURE A PROPER
DIFFUSION OF POLITICAL INITIATIVE AS BETWEEN ITS THINLY POPULATED
COUNTIES AND THOSE HAVING CONCENTRATED MASSES, IN VIEW OF THE FACT THAT
THE LATTER HAVE PRACTICAL OPPORTUNITIES FOR EXERTING THEIR POLITICAL
WEIGHT AT THE POLLS NOT AVAILABLE TO THE FORMER."  335 U.S., AT 284. 
IN CASE AFTER CASE ARISING UNDER THE EQUAL PROTECTION CLAUSE THE COURT
HAS SAID WHAT IT SAID AGAIN ONLY LAST TERM - THAT "THE FOURTEENTH
AMENDMENT PERMITS THE STATES A WIDE SCOPE OF DISCRETION IN ENACTING
LAWS WHICH AFFECT SOME GROUPS OF CITIZENS DIFFERENTLY THAN OTHERS." 
MCGOWAN V. MARYLAND, 366 U.S. 420, 425.  IN CASE AFTER CASE ARISING
UNDER THAT CLAUSE WE HAVE ALSO SAID THAT "THE BURDEN OF ESTABLISHING
THE UNCONSTITUTIONALITY OF A STATUTE RESTS ON HIM WHO ASSAILS IT." 
METROPOLITAN CASUALTY INS. CO. V. BROWNELL, 294 U.S. 580, 584. 

TODAY'S DECISION DOES NOT TURN ITS BACK ON THESE SETTLED PRECEDENTS. 
I REPEAT, THE COURT TODAY DECIDES ONLY:  (1) THAT THE DISTRICT COURT
POSSESSED JURISDICTION OF THE SUBJECT MATTER; (2) THAT THE COMPLAINT
PRESENTS A JUSTICIABLE CONTROVERSY; (3) THAT THE APPELLANTS HAVE
STANDING.  MY BROTHER CLARK HAS MADE A CONVINCING PRIMA FACIE SHOWING
THAT TENNESSEE'S SYSTEM OF APPORTIONMENT IS IN FACT UTTERLY ARBITRARY -
WITHOUT ANY POSSIBLE JUSTIFICATION IN RATIONALITY.  MY BROTHER HARLAN
HAS, WITH IMAGINATION AND INGENUITY, HYPOTHESIZED POSSIBLY RATIONAL
BASES FOR TENNESSEE'S SYSTEM.  BUT THE MERITS OF THIS CASE ARE NOT
BEFORE US NOW.  THE DEFENDANTS HAVE NOT YET HAD AN OPPORTUNITY TO BE
HEARD IN DEFENSE OF THE STATE'S SYSTEM OF APPORTIONMENT; INDEED, THEY
HAVE NOT YET EVEN FILED AN ANSWER TO THE COMPLAINT.  AS IN OTHER CASES,
THE PROPER PLACE FOR THE TRIAL IS IN THE TRIAL COURT, NOT HERE.    MR.
JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE COURT TODAY REVERSES A UNIFORM COURSE OF DECISION ESTABLISHED BY
A DOZEN CASES, INCLUDING ONE BY WHICH THE VERY CLAIM NOW SUSTAINED WAS
UNANIMOUSLY REJECTED ONLY FIVE YEARS AGO.  THE IMPRESSIVE BODY OF
RULINGS THUS CAST ASIDE REFLECTED THE EQUALLY UNIFORM COURSE OF OUR
POLITICAL HISTORY REGARDING THE RELATIONSHIP BETWEEN POPULATION AND
LEGISLATIVE REPRESENTATION - A WHOLLY DIFFERENT MATTER FROM DENIAL OF
THE FRANCHISE TO INDIVIDUALS BECAUSE OF RACE, COLOR, RELIGION OR SEX. 
SUCH A MASSIVE REPUDIATION OF THE EXPERIENCE OF OUR WHOLE PAST IN
ASSERTING DESTRUCTIVELY NOVEL JUDICIAL POWER DEMANDS A DETAILED
ANALYSIS OF THE ROLE OF THIS COURT IN OUR CONSTITUTIONAL SCHEME. 
DISREGARD OF INHERENT LIMITS IN THE EFFECTIVE EXERCISE OF THE COURT'S
"JUDICIAL POWER" NOT ONLY PRESAGES THE FUTILITY OF JUDICIAL
INTERVENTION IN THE ESSENTIALLY POLITICAL CONFLICT OF FORCES BY WHICH
THE RELATION BETWEEN POPULATION AND REPRESENTATION HAS TIME OUT OF MIND
BEEN AND NOW IS DETERMINED.  IT MAY WELL IMPAIR THE COURT'S POSITION AS
THE ULTIMATE ORGAN OF "THE SUPREME LAW OF THE LAND" IN THAT VAST RANGE
OF LEGAL PROBLEMS, OFTEN STRONGLY ENTANGLED IN POPULAR FEELING, ON
WHICH THIS COURT MUST PRONOUNCE.  THE COURT'S AUTHORITY - POSSESSED OF
NEITHER THE PURSE NOR THE SWORD - ULTIMATELY RESTS ON SUSTAINED PUBLIC
CONFIDENCE IN ITS MORAL SANCTION.  SUCH FEELING MUST BE NOURISHED BY
THE COURT'S COMPLETE DETACHMENT, IN FACT AND IN APPEARANCE, FROM
POLITICAL ENTANGLEMENTS AND BY ABSTENTION FROM INJECTING ITSELF INTO
THE CLASH OF POLITICAL FORCES IN POLITICAL SETTLEMENTS. 

A HYPOTHETICAL CLAIM RESTING ON ABSTRACT ASSUMPTIONS IS NOW FOR THE
FIRST TIME MADE THE BASIS FOR AFFORDING ILLUSORY RELIEF FOR A
PARTICULAR EVIL EVEN THOUGH IT FORESHADOWS DEEPER AND MORE PERVASIVE
DIFFICULTIES IN CONSEQUENCE.  THE CLAIM IS HYPOTHETICAL AND THE
ASSUMPTIONS ARE ABSTRACT BECAUSE THE COURT DOES NOT VOUCHSAFE THE LOWER
COURTS - STATE AND FEDERAL - GUIDELINES FOR FORMULATING SPECIFIC,
DEFINITE, WHOLLY UNPRECEDENTED REMEDIES FOR THE INEVITABLE LITIGATIONS
THAT TODAY'S UMBRAGEOUS DISPOSITION IS BOUND TO STIMULATE IN CONNECTION
WITH POLITICALLY MOTIVATED REAPPORTIONMENTS IN SO MANY STATES.  IN SUCH
A SETTING, TO PROMULGATE JURISDICTION IN THE ABSTRACT IS MEANINGLESS. 
IT IS AS DEVOID OF REALITY AS "A BROODING OMNIPRESENCE IN THE SKY," FOR
IT CONVEYS NO INTIMATION WHAT RELIEF, IF ANY, A DISTRICT COURT IS
CAPABLE OF AFFORDING THAT WOULD NOT INVITE LEGISLATURES TO PLAY DUCKS
AND DRAKES WITH THE JUDICIARY.  FOR THIS COURT TO DIRECT THE DISTRICT
COURT TO ENFORCE A CLAIM TO WHICH THE COURT HAS OVER THE YEARS
CONSISTENTLY FOUND ITSELF REQUIRED TO DENY LEGAL ENFORCEMENT AND AT THE
SAME TIME TO FIND IT NECESSARY TO WITHHOLD ANY GUIDANCE TO THE LOWER
COURT HOW TO ENFORCE THIS TURNABOUT, NEW LEGAL CLAIM, MANIFESTS AN ODD
INDEED AN ESOTERIC - CONCEPTION OF JUDICIAL PROPRIETY.  ONE OF THE
COURT'S SUPPORTING OPINIONS, AS ELUCIDATED BY COMMENTARY, UNWITTINGLY
AFFORDS A DISHEARTENING PREVIEW OF THE MATHEMATICAL QUAGMIRE (APART
FROM DIVERS JUDICIALLY INAPPROPRIATE AND ELUSIVE DETERMINANTS) INTO
WHICH THIS COURT TODAY CATAPULTS THE LOWER COURTS OF THE COUNTRY
WITHOUT SO MUCH AS ADUMBRATING THE BASIS FOR A LEGAL CALCULUS AS A
MEANS OF EXTRICATION.  EVEN ASSUMING THE INDISPENSABLE INTELLECTUAL
DISINTERESTEDNESS ON THE PART OF JUDGES IN SUCH MATTERS, THEY DO NOT
HAVE ACCEPTED LEGAL STANDARDS OR CRITERIA OR EVEN RELIABLE ANALOGIES TO
DRAW UPON FOR MAKING JUDICIAL JUDGMENTS.  TO CHARGE COURTS WITH THE
TASK OF ACCOMMODATING THE INCOMMENSURABLE FACTORS OF POLICY THAT
UNDERLIE THESE MATHEMATICAL PUZZLES IS TO ATTRIBUTE, HOWEVER
FLATTERINGLY, OMNICOMPETENCE TO JUDGES.  THE FRAMERS OF THE
CONSTITUTION PERSISTENTLY REJECTED A PROPOSAL THAT EMBODIED THIS
ASSUMPTION AND THOMAS JEFFERSON NEVER ENTERTAINED IT. 

RECENT LEGISLATION, CREATING A DISTRICT APPROPRIATELY DESCRIBED AS
"AN ATROCITY OF INGENUITY," IS NOT UNIQUE.  CONSIDERING THE GROSS
INEQUALITY AMONG LEGISLATIVE ELECTORAL UNITS WITHIN ALMOST EVERY STATE,
THE COURT NATURALLY SHRINKS FROM ASSERTING THAT IN DISTRICTING AT LEAST
SUBSTANTIAL EQUALITY IS A CONSTITUTIONAL REQUIREMENT ENFORCEABLE BY
COURTS.*  ROOM CONTINUES TO BE ALLOWED FOR WEIGHTING.   THIS OF COURSE
IMPLIES THAT GEOGRAPHY, ECONOMICS, URBAN-RURAL CONFLICT, AND ALL THE
OTHER NON-LEGAL FACTORS WHICH HAVE THROUGHOUT OUR HISTORY ENTERED INTO
POLITICAL DISTRICTING ARE TO SOME EXTENT NOT TO BE RULED OUT IN THE
UNDEFINED VISTA NOW OPENED UP BY REVIEW IN THE FEDERAL COURTS OF STATE
REAPPORTIONMENTS.  TO SOME EXTENT - AYE, THERE'S THE RUB.  IN EFFECT,
TODAY'S DECISION EMPOWERS THE COURTS OF THE COUNTRY TO DEVISE WHAT
SHOULD CONSTITUTE THE PROPER COMPOSITION OF THE LEGISLATURES OF THE
FIFTY STATES.  IF STATE COURTS SHOULD FOR ONE REASON OR ANOTHER FIND
THEMSELVES UNABLE TO DISCHARGE THIS TASK, THE DUTY OF DOING SO IS PUT
ON THE FEDERAL COURTS OR ON THIS COURT, IF STATE VIEWS DO NOT SATISFY
THIS COURT'S NOTION OF WHAT IS PROPER DISTRICTING. 

*IT IS WORTH REMINDING THAT THE PROBLEM OF LEGISLATIVE APPORTIONMENT
IS NOT ONE DIVIDING NORTH AND SOUTH.  INDEED, IN THE PRESENT HOUSE OF
REPRESENTATIVES, FOR EXAMPLE, MICHIGAN'S CONGRESSIONAL DISTRICTS ARE
FAR LESS REPRESENTATIVE OF THE NUMBERS OF INHABITANTS, ACCORDING TO THE
1960 CENSUS, THAN ARE LOUISIANA'S.  MICHIGAN'S SIXTEENTH DISTRICT,
WHICH IS 93.1% URBAN, CONTAINS 802,994 PERSONS AND ITS TWELFTH, WHICH
IS 47.6% URBAN, CONTAINS 177,431 - ONE-FIFTH AS MANY PERSONS. 
LOUISIANA'S MOST POPULOUS DISTRICT, THE SIXTH, IS 53.6% URBAN AND
CONTAINS 536,029 PERSONS, AND ITS LEAST POPULOUS, THE EIGHTH, 36.7%
URBAN, CONTAINS 263,850 - NEARLY HALF.  GROSS DISREGARD OF ANY
ASSUMPTION THAT OUR POLITICAL SYSTEM IMPLIES EVEN APPROXIMATION TO THE
NOTION THAT INDIVIDUAL VOTES IN THE VARIOUS DISTRICTS WITHIN A STATE
SHOULD HAVE EQUAL WEIGHT IS AS TRUE, E.G., OF CALIFORNIA, ILLINOIS, AND
OHIO AS IT IS OF GEORGIA.  SEE UNITED STATES DEPARTMENT OF COMMERCE,
CENSUS RELEASE, FEBRUARY 24, 1962, CB62-23. 

WE WERE SOOTHINGLY TOLD AT THE BAR OF THIS COURT THAT WE NEED NOT
WORRY ABOUT THE KIND OF REMEDY A COURT COULD EFFECTIVELY FASHION ONCE
THE ABSTRACT CONSTITUTIONAL RIGHT TO HAVE COURTS PASS ON A STATE-WIDE
SYSTEM OF ELECTORAL DISTRICTING IS RECOGNIZED AS A MATTER OF JUDICIAL
RHETORIC, BECAUSE LEGISLATURES WOULD HEED THE COURT'S ADMONITION.  THIS
IS NOT ONLY A EUPHORIC HOPE.  IT IMPLIES A SORRY CONFESSION OF JUDICIAL
IMPOTENCE IN PLACE OF A FRANK ACKNOWLEDGMENT THAT THERE IS NOT UNDER
OUR CONSTITUTION A JUDICIAL REMEDY FOR EVERY POLITICAL MISCHIEF, FOR
EVERY UNDESIRABLE EXERCISE OF LEGISLATIVE POWER.  THE FRAMERS CAREFULLY
AND WITH DELIBERATE FORETHOUGHT REFUSED SO TO ENTHRONE THE JUDICIARY. 
IN THIS SITUATION, AS IN OTHERS OF LIKE NATURE, APPEAL FOR RELIEF DOES
NOT BELONG HERE.  APPEAL MUST BE TO AN INFORMED, CIVICALLY MILITANT
ELECTORATE.  IN A DEMOCRATIC SOCIETY LIKE OURS, RELIEF MUST COME
THROUGH AN AROUSED POPULAR CONSCIENCE THAT SEARS THE CONSCIENCE OF THE
PEOPLE'S REPRESENTATIVES.  IN ANY EVENT THERE IS NOTHING JUDICIALLY
MORE UNSEEMINGLY NOR MORE SELF-DEFEATING THAN FOR THIS COURT TO MAKE IN
TERROREM PRONOUNCEMENTS, TO INDULGE IN MERELY EMPTY RHETORIC, SOUNDING
A WORD OF PROMISE TO THE EAR, SURE TO BE DISAPPOINTING TO THE HOPE. 

THIS IS THE LATEST IN THE SERIES OF CASES IN WHICH THE EQUAL
PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT HAVE
BEEN INVOKED IN FEDERAL COURTS AS RESTRICTIONS UPON THE POWER OF THE
STATES TO ALLOCATE ELECTORAL WEIGHT AMONG THE VOTING POPULATIONS OF
THEIR VARIOUS GEOGRAPHICAL SUBDIVISIONS.  (FN1)  THE PRESENT ACTION,
WHICH COMES HERE ON APPEAL FROM AN ORDER OF A STATUTORY THREE-JUDGE
DISTRICT COURT DISMISSING AMENDED COMPLAINTS SEEKING DECLARATORY AND
INJUNCTIVE RELIEF, CHALLENGES THE PROVISIONS OF TENN.  CODE ANN., 1955,
SECS. 3-101 TO 3-109, WHICH APPORTION STATE REPRESENTATIVE AND
SENATORIAL SEATS AMONG TENNESSEE'S NINETY-FIVE COUNTIES. 

THE ORIGINAL PLAINTIFFS, CITIZENS AND QUALIFIED VOTERS ENTITLED TO
VOTE FOR MEMBERS OF THE TENNESSEE LEGISLATURE IN THE SEVERAL COUNTIES
IN WHICH THEY RESPECTIVELY RESIDE, BRING THIS ACTION IN THEIR OWN
BEHALF AND "ON BEHALF OF ALL OTHER VOTERS IN THE STATE OF TENNESSEE,"
OR, AS THEY ALTERNATIVELY ASSERT, "ON BEHALF OF ALL QUALIFIED VOTERS OF
THEIR RESPECTIVE COUNTIES, AND FURTHER, ON BEHALF OF ALL VOTERS OF THE
STATE OF TENNESSEE WHO ARE SIMILARLY SITUATED."  THE CITIES OF
KNOXVILLE AND CHATANOOGA, AND THE MAYOR OF NASHVILLE - ON HIS OWN
BEHALF AS A QUALIFIED VOTER AND, PURSUANT TO AN AUTHORIZING RESOLUTION
BY THE NASHVILLE CITY COUNCIL, AS A REPRESENTATIVE OF ALL THE CITY'S
RESIDENTS - WERE PERMITTED TO INTERVENE AS PARTIES PLAINTIFF.  (FN2)
THE DEFENDANTS ARE EXECUTIVE OFFICIALS CHARGED WITH STATUTORY DUTIES IN
CONNECTION WITH STATE ELECTIONS.  (FN3) 

THE ORIGINAL PLAINTIFFS' AMENDED COMPLAINT AVERS, IN SUBSTANCE, THE
FOLLOWING.  (FN4)  THE CONSTITUTION OF THE STATE OF TENNESSEE DECLARES
THAT "ELECTIONS SHALL BE FREE AND EQUAL," PROVIDES THAT NO
QUALIFICATIONS OTHER THAN AGE, CITIZENSHIP AND SPECIFIED RESIDENCE
REQUIREMENTS SHALL BE ATTACHED TO THE RIGHT OF SUFFRAGE, AND PROHIBITS
DENYING TO ANY PERSON THE SUFFRAGE TO WHICH HE IS ENTITLED EXCEPT UPON
CONVICTION OF AN INFAMOUS CRIME.  ART. I, SEC. 5; ART. IV, SEC. 1.  IT
REQUIRES AN ENUMERATION OF QUALIFIED VOTERS WITHIN EVERY TERM OF TEN
YEARS AFTER 1871 AND AN APPORTIONMENT OF REPRESENTATIVES AND SENATORS
AMONG THE SEVERAL COUNTIES OR DISTRICTS ACCORDING TO THE NUMBER OF
QUALIFIED VOTERS IN EACH (FN5) AT THE TIME OF EACH DECENNIAL
ENUMERATION.  ART. II, SECS. 4, 5, 6.  NOTWITHSTANDING THESE
PROVISIONS, THE STATE LEGISLATURE HAS NOT REAPPORTIONED ITSELF SINCE
1901.  THE REAPPORTIONMENT ACT OF THAT YEAR, TENN. ACTS 1901, C. 122,
NOW TENN.  CODE ANN., 1955, SECS. 3-101 TO 3-109, (FN6) WAS
UNCONSTITUTIONAL WHEN ENACTED, BECAUSE NOT PRECEDED BY THE REQUIRED
ENUMERATION OF QUALIFIED VOTERS AND BECAUSE IT ALLOCATED LEGISLATIVE
SEATS ARBITRARILY, UNEQUALLY AND DISCRIMINATORILY, AS MEASURED BY THE
1900 FEDERAL CENSUS.  MOREOVER, IRRESPECTIVE OF THE QUESTION OF ITS
VALIDITY IN 1901, IT IS ASSERTED THAT THE ACT BECAME "UNCONSTITUTIONAL
AND OBSOLETE" IN 1911 BY VIRTUE OF THE DECENNIAL REAPPORTIONMENT
REQUIREMENT OF THE TENNESSEE CONSTITUTION.  CONTINUING A "PURPOSEFUL
AND SYSTEMATIC PLAN TO DISCRIMINATE AGAINST A GEOGRAPHICAL CLASS OF
PERSONS," RECENT TENNESSEE LEGISLATURES HAVE FAILED, AS DID THEIR
PREDECESSORS, TO ENACT REAPPORTIONMENT LEGISLATION, ALTHOUGH A NUMBER
OF BILLS PROVIDING FOR REAPPORTIONMENT HAVE BEEN INTRODUCED.  BECAUSE
OF POPULATION SHIFTS SINCE 1901, THE APPORTIONMENT FIXED BY THE ACT OF
THAT YEAR AND STILL IN EFFECT IS NOT PROPORTIONATE TO POPULATION,
DENIES TO THE COUNTIES IN WHICH THE PLAINTIFFS LIVE AND ADDITIONAL
NUMBER OF REPRESENTATIVES TO WHICH THEY ARE ENTITLED, AND RENDERS
PLAINTIFFS' VOTES "NOT AS EFFECTIVE AS THE VOTES OF THE VOTERS RESIDING
IN OTHER SENATORIAL AND REPRESENTATIVE DISTRICTS  ...  ."  PLAINTIFFS
"SUFFER A DEBASEMENT OF THEIR VOTES BY VIRTUE OF THE INCORRECT,
ARBITRARY, OBSOLETE AND UNCONSTITUTIONAL APPORTIONMENT OF THE GENERAL
ASSEMBLY  ...  ," AND THE TOTALITY OF THE MALAPPORTIONMENT'S EFFECT -
WHICH PERMITS A MINORITY OF ABOUT THIRTY-SEVEN PERCENT OF THE VOTING
POPULATION OF THE STATE TO CONTROL TWENTY OF THE THIRTY-THREE MEMBERS
OF TENNESSEE'S SENATE, AND A MINORITY OF FORTY PERCENT OF THE VOTING
POPULATION TO CONTROL SIXTY-THREE OF THE NINETY-NINE MEMBERS OF THE
HOUSE - RESULTS IN "A DISTORTION OF THE CONSTITUTIONAL SYSTEM"
ESTABLISHED BY THE FEDERAL AND STATE CONSTITUTIONS, PREVENTS THE
GENERAL ASSEMBLY "FROM BEING A BODY REPRESENTATIVE OF THE PEOPLE OF THE
STATE OF TENNESSEE,  ... " AND IS "CONTRARY TO THE BASIC PRINCIPLE OF
REPRESENTATIVE GOVERNMENT  ...  ," AND "CONTRARY TO THE PHILOSOPHY OF
GOVERNMENT IN THE UNITED STATES AND ALL ANGLO-SAXON JURISPRUDENCE  ...
." 

EXHIBITS APPENDED TO THE COMPLAINT PURPORT TO DEMONSTRATE THE EXTENT
OF THE INEQUALITIES OF WHICH PLAINTIFFS COMPLAIN.  BASED UPON
"APPROXIMATE VOTING POPULATION," (FN7) THESE SET FORTH FIGURES SHOWING
THAT THE STATE SENATOR FROM TENNESSEE'S MOST POPULOUS SENATORIAL
DISTRICT REPRESENTS FIVE AND TWO-TENTHS TIMES THE NUMBER OF VOTERS
REPRESENTED BY THE SENATOR FROM THE LEAST POPULOUS DISTRICT, WHILE THE
CORRESPONDING RATIO FOR MOST AND LEAST POPULOUS HOUSE DISTRICTS IS MORE
THAN EIGHTEEN TO ONE.  THE GENERAL ASSEMBLY THUS APPORTIONED HAS
DISCRIMINATED AGAINST THE UNDERREPRESENTED COUNTIES AND IN FAVOR OF THE
OVERREPRESENTED COUNTIES IN THE COLLECTION AND DISTRIBUTION OF VARIOUS
TAXES AND TAX REVENUES, NOTABLY IN THE DISTRIBUTION OF SCHOOL AND
HIGHWAY-IMPROVEMENT FUNDS, (FN8) THIS DISCRIMINATION BEING "MADE
POSSIBLE AND EFFECTIVE" BY THE LEGISLATURE'S FAILURE TO REAPPORTION
ITSELF.  PLAINTIFFS CONCLUDE THAT ELECTION OF THE STATE LEGISLATURE
PURSUANT TO THE APPORTIONMENT FIXED BY THE 1901 ACT VIOLATES THE
TENNESSEE CONSTITUTION AND DEPRIVES THEM OF DUE PROCESS OF LAW AND OF
THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH
AMENDMENT.  THEIR PRAYER BELOW WAS FOR A DECLARATORY JUDGMENT STRIKING
DOWN THE ACT, AN INJUNCTION RESTRAINING DEFENDANTS FROM ANY ACTS
NECESSARY TO THE HOLDING OF ELECTIONS IN THE DISTRICTS PRESCRIBED BY
TENN. CODE ANN., 1955, SECS. 3-101 TO 3-109, UNTIL SUCH TIME AS THE
LEGISLATURE IS REAPPORTIONED "ACCORDING TO THE CONSTITUTION OF THE
STATE OF TENNESSEE," AND AN ORDER DIRECTING DEFENDANTS TO DECLARE THE
NEXT PRIMARY AND GENERAL ELECTIONS FOR MEMBERS OF THE TENNESSEE
LEGISLATURE ON AN AT-LARGE BASIS - THE THIRTY-THREE SENATORIAL
CANDIDATES AND THE NINETY-NINE REPRESENTATIVE CANDIDATES RECEIVING THE
HIGHEST NUMBER OF VOTES TO BE DECLARED ELECTED.  (FN9) 

MOTIONS TO DISMISS FOR WANT OF JURISDICTION OF THE SUBJECT MATTER AND
FOR FAILURE TO STATE A CLAIM WERE MADE AND GRANTED, 179 F. SUPP. 824,
THE DISTRICT COURT RELYING UPON THIS COURT'S SERIES OF DECISIONS
BEGINNING WITH COLEGROVE V. GREEN, 328 U.S. 549, REHEARING DENIED, 329
U.S. 825, MOTION FOR REARGUMENT BEFORE THE FULL BENCH DENIED, 329 U.S.
828.  THE ORIGINAL AND INTERVENING PLAINTIFFS BRING THE CASE HERE ON
APPEAL.  364 U.S. 898.  IN THIS COURT THEY HAVE ALTERED THEIR REQUEST
FOR RELIEF, SUGGESTING A "STEP-BY-STEP APPROACH."  THE FIRST STEP IS A
REMAND TO THE DISTRICT COURT WITH DIRECTIONS TO VACATE THE ORDER
DISMISSING THE COMPLAINT AND TO ENTER AN ORDER RETAINING JURISDICTION,
PROVIDING "THE NECESSARY SPUR TO LEGISLATIVE ACTION  ...  ."  IF THIS
PROVES INSUFFICIENT, APPELLANTS WILL ASK THE "ADDITIONAL SPUR" OF AN
INJUNCTION PROHIBITING ELECTIONS UNDER THE 1901 ACT, OR A DECLARATION
OF THE ACT'S UNCONSTITUTIONALITY, OR BOTH.  FINALLY, ALL OTHER MEANS
FAILING, THE DISTRICT COURT IS INVITED BY THE PLAINTIFFS, GREATLY
DARING, TO ORDER AN ELECTION AT LARGE OR REDISTRICT THE STATE ITSELF OR
THROUGH A MASTER.  THE SOLICITOR GENERAL OF THE UNITED STATES, WHO HAS
FILED A BRIEF AMICUS AND ARGUED IN FAVOR OF REVERSAL, ASKS THE COURT ON
THIS APPEAL TO HOLD ONLY THAT THE DISTRICT COURT HAS "JURISDICTION" AND
MAY PROPERLY EXERCISE IT TO ENTERTAIN THE PLAINTIFFS' CLAIMS ON THE
MERITS.  THIS WOULD LEAVE TO THAT COURT AFTER REMAND THE QUESTIONS OF
THE CHALLENGED STATUTE'S CONSTITUTIONALITY AND OF SOME UNDEFINED,
UNADUMBRATED RELIEF IN THE EVENT A CONSTITUTIONAL VIOLATION IS FOUND. 
AFTER AN ARGUMENT AT THE LAST TERM, THE CASE WAS SET DOWN FOR
REARGUMENT, 366 U.S. 907, AND HEARD THIS TERM. 

                  I. 

IN SUSTAINING APPELLANTS' CLAIM, BASED ON THE FOURTEENTH AMENDMENT,
THAT THE DISTRICT COURT MAY ENTERTAIN THIS SUIT, THIS COURT'S UNIFORM
COURSE OF DECISION OVER THE YEARS IS OVERRULED OR DISREGARDED. 
EXPLICITLY IT BEGINS WITH COLEGROVE V. GREEN, SUPRA, DECIDED IN 1946,
BUT ITS ROOTS RUN DEEP IN THE COURT'S HISTORIC ADJUDICATORY PROCESS. 

COLEGROVE HELD THAT A FEDERAL COURT SHOULD NOT ENTERTAIN AN ACTION
FOR DECLARATORY AND INJUNCTIVE RELIEF TO ADJUDICATE THE
CONSTITUTIONALITY, UNDER THE EQUAL PROTECTION CLAUSE AND OTHER FEDERAL
CONSTITUTIONAL AND STATUTORY PROVISIONS, OF A STATE STATUTE
ESTABLISHING THE RESPECTIVE DISTRICTS FOR THE STATE'S ELECTION OF
REPRESENTATIVES TO THE CONGRESS.  TWO OPINIONS WERE WRITTEN BY THE FOUR
JUSTICES WHO COMPOSED THE MAJORITY OF THE SEVEN SITTING MEMBERS OF THE
COURT.  BOTH OPINIONS JOINING IN THE RESULT IN COLEGROVE V. GREEN
AGREED THAT CONSIDERATIONS WERE CONTROLLING WHICH DICTATED DENIAL OF
JURISDICTION THOUGH NOT IN THE STRICT SENSE OF WANT OF POWER.  WHILE
THE TWO OPINIONS SHOW A DIVERGENCE OF VIEW REGARDING SOME OF THESE
CONSIDERATIONS, THERE ARE IMPORTANT POINTS OF CONCURRENCE.  BOTH
OPINIONS DEMONSTRATE A PREDOMINANT CONCERN, FIRST, WITH AVOIDING
FEDERAL JUDICIAL INVOLVEMENT IN MATTERS TRADITIONALLY LEFT TO
LEGISLATIVE POLICY MAKING; SECOND, WITH RESPECT TO THE DIFFICULTY - IN
VIEW OF THE NATURE OF THE PROBLEMS OF APPORTIONMENT AND ITS HISTORY IN
THIS COUNTRY - OF DRAWING ON OR DEVISING JUDICIAL STANDARDS FOR
JUDGMENT, AS OPPOSED TO LEGISLATIVE DETERMINATIONS, OF THE PART WHICH
MERE NUMERICAL EQUALITY AMONG VOTERS SHOULD PLAY AS A CRITERION FOR THE
ALLOCATION OF POLITICAL POWER; AND, THIRD, WITH PROBLEMS OF FINDING
APPROPRIATE MODES OF RELIEF - PARTICULARLY, THE PROBLEM OF RESOLVING
THE ESSENTIALLY POLITICAL ISSUE OF THE RELATIVE MERITS OF AT-LARGE
ELECTIONS AND ELECTIONS HELD IN DISTRICTS OF UNEQUAL POPULATION. 

THE BROAD APPLICABILITY OF THESE CONSIDERATIONS - SUMMARIZED IN THE
LOOSE SHORTHAND PHRASE, "POLITICAL QUESTION" - IN CASES INVOLVING A
STATE'S APPORTIONMENT OF VOTING POWER AMONG ITS NUMEROUS LOCALITIES HAS
LED THE COURT, SINCE 1946, TO RECOGNIZE THEIR CONTROLLING EFFECT IN A
VARIETY OF SITUATIONS.  (IN ALL THESE CASES DECISION WAS BY A FULL
COURT.)  THE "POLITICAL QUESTION" PRINCIPLE AS APPLIED IN COLEGROVE HAS
FOUND WIDE APPLICATION COMMENSURATE WITH ITS FUNCTION AS "ONE OF THE
RULES BASIC TO THE FEDERAL SYSTEM AND THIS COURT'S APPROPRIATE PLACE
WITHIN THAT STRUCTURE."  RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549,
570.  IN COLEGROVE V. BARRETT, 330 U.S. 804, LITIGANTS BROUGHT SUIT IN
A FEDERAL DISTRICT COURT CHALLENGING AS OFFENSIVE TO THE EQUAL
PROTECTION CLAUSE ILLINOIS' STATE LEGISLATIVE-APPORTIONMENT LAWS.  THEY
POINTED TO STATE CONSTITUTIONAL PROVISIONS REQUIRING DECENNIAL
REAPPORTIONMENT AND ALLOCATION OF SEATS IN PROPORTION TO POPULATION,
ALLEGED A FAILURE TO REAPPORTION FOR MORE THAN FORTY-FIVE YEARS -
DURING WHICH TIME EXTENSIVE POPULATION SHIFTS HAD RENDERED THE
LEGISLATIVE DISTRICTS GROSSLY UNEQUAL - AND SOUGHT DECLARATORY AND
INJUNCTIVE RELIEF WITH RESPECT TO ALL ELECTIONS TO BE HELD THEREAFTER. 
AFTER THE COMPLAINT WAS DISMISSED BY THE DISTRICT COURT, THIS COURT
DISMISSED AN APPEAL FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION.  A
SIMILAR DISTRICT COURT DECISION WAS AFFIRMED HERE IN RADFORD V. GARY,
352 U.S. 991.  AND CF. REMMEY V. SMITH, 342 U.S. 916.  IN TEDESCO V.
BOARD OF SUPERVISORS, 339 U.S. 940, THE COURT DECLINED TO HEAR, FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION, THE CLAIM THAT THE DIVISION OF
A MUNICIPALITY INTO VOTING DISTRICTS OF UNEQUAL POPULATION FOR THE
SELECTION FOR COUNCILMEN FELL AFOUL OF THE FOURTEENTH AMENDMENT, AND IN
COX V. PETERS, 342 U.S. 936, REHEARING DENIED, 343 U.S. 921, IT FOUND
NO SUBSTANTIAL FEDERAL QUESTION RAISED BY A STATE COURT'S DISMISSAL OF
A CLAIM FOR DAMAGES FOR "DEVALUATION" OF PLAINTIFF'S VOTE BY
APPLICATION OF GEORGIA'S COUNTY-UNIT SYSTEM IN A PRIMARY ELECTION FOR
THE DEMOCRATIC GUBERNATORIAL CANDIDATE.  THE SAME GEORGIA SYSTEM WAS
SUBSEQUENTLY ATTACKED IN A COMPLAINT FOR DECLARATORY JUDGMENT AND AN
INJUNCTION; THE FEDERAL DISTRICT JUDGE DECLINED TO TAKE THE REQUISITE
STEPS FOR THE CONVENING OF A STATUTORY THREE-JUDGE COURT; AND THIS
COURT, IN HARTSFIELD V. SLOAN, 357 U.S. 916, DENIED A MOTION FOR LEAVE
TO FILE A PETITION FOR A WRIT OF MANDAMUS TO COMPEL THE DISTRICT JUDGE
TO ACT.  IN MACDOUGALL V. GREEN, 335 U.S. 281, 283, THE COURT NOTED
THAT "TO ASSUME THAT POLITICAL POWER IS A FUNCTION EXCLUSIVELY OF
NUMBERS IS TO DISREGARD THE PRACTICALITIES OF GOVERNMENT," AND, CITING
THE COLEGROVE CASES, DECLINED TO FIND IN "SUCH BROAD CONSTITUTIONAL
CONCEPTS AS DUE PROCESS AND EQUAL PROTECTION OF THE LAWS," ID., AT 284,
A WARRANT FOR FEDERAL JUDICIAL INVALIDATION OF AN ILLINOIS STATUTE
REQUIRING AS A CONDITION FOR THE FORMATION OF A NEW POLITICAL PARTY THE
SECURING OF AT LEAST TWO HUNDRED SIGNATURES FROM EACH OF FIFTY
COUNTIES.  AND IN SOUTH V. PETERS, 339 U.S. 276, ANOTHER SUIT ATTACKING
GEORGIA'S COUNTY-UNIT LAW, IT AFFIRMED A DISTRICT COURT DISMISSAL,
SAYING: 

"FEDERAL COURTS CONSISTENTLY REFUSE TO EXERCISE THEIR EQUITY POWERS
IN CASES POSING POLITICAL ISSUES ARISING FROM A STATE'S GEOGRAPHICAL
DISTRIBUTION OF ELECTORAL STRENGTH AMONG ITS POLITICAL SUBDIVISIONS." 
ID., AT 277. 

OF COURSE IT IS IMPORTANT TO RECOGNIZE PARTICULAR, RELEVANT
DIVERSITIES AMONG COMPREHENSIVELY SIMILAR SITUATIONS.  APPELLANTS SEEK
TO DISTINGUISH SEVERAL OF THIS COURT'S PRIOR DECISIONS ON ONE OR
ANOTHER GROUND - COLEGROVE V. GREEN ON THE GROUND THAT FEDERAL, NOT
STATE, LEGISLATIVE APPORTIONMENT WAS INVOLVED; REMMEY V. SMITH ON THE
GROUND THAT STATE JUDICIAL REMEDIES HAD NOT BEEN TRIED; RADFORD V. GARY
ON THE GROUND THAT OKLAHOMA HAS THE INITIATIVE, WHEREAS TENNESSEE DOES
NOT.  IT WOULD ONLY DARKEN COUNSEL TO DISCUSS THE RELEVANCE AND
SIGNIFICANCE OF EACH OF THESE ASSERTEDLY DISTINGUISHING FACTORS HERE
AND IN THE CONTEXT OF THIS ENTIRE LINE OF CASES.  SUFFICE IT THAT THEY
DO NOT SERVE TO DISTINGUISH COLEGROVE V. BARRETT, SUPRA, WHICH IS ON
ALL FOURS WITH THE PRESENT CASE, OR TO DISTINGUISH KIDD V. MCCANLESS,
352 U.S. 920, IN WHICH THE FULL COURT WITHOUT DISSENT, ONLY FIVE YEARS
AGO, DISMISSED ON AUTHORITY OF COLEGROVE V. GREEN AND ANDERSON V.
JORDAN, 343 U.S. 912, AN APPEAL FROM THE SUPREME COURT OF TENNESSEE IN
WHICH A PRECISELY SIMILAR ATTACK WAS MADE UPON THE VERY STATUTE NOW
CHALLENGED.  IF THE WEIGHT AND MOMENTUM OF AN UNVARYING COURSE OF
CAREFULLY CONSIDERED DECISIONS ARE TO BE RESPECTED, APPELLANTS' CLAIMS
ARE FORECLOSED NOT ONLY BY PRECEDENTS GOVERNING THE EXACT FACTS OF THE
PRESENT CASE BUT ARE THEMSELVES SUPPORTED BY AUTHORITY THE MORE
PERSUASIVE IN THAT IT GIVES EFFECT TO THE COLEGROVE PRINCIPLE IN
DISTINCTLY VARYING CIRCUMSTANCES IN WHICH STATE ARRANGEMENTS ALLOCATING
RELATIVE DEGREES OF POLITICAL INFLUENCE AMONG GEOGRAPHIC GROUPS OF
VOTERS WERE CHALLENGED UNDER THE FOURTEENTH AMENDMENT. 

II. 

THE COLEGROVE DOCTRINE, IN THE FORM IN WHICH REPEATED DECISIONS HAVE
SETTLED IT, WAS NOT AN INNOVATION.  IT REPRESENTS LONG JUDICIAL THOUGHT
AND EXPERIENCE.  FROM ITS EARLIEST OPINIONS THIS COURT HAS CONSISTENTLY
RECOGNIZED A CLASS OF CONTROVERSIES WHICH DO NOT LEND THEMSELVES TO
JUDICIAL STANDARDS AND JUDICIAL REMEDIES.  TO CLASSIFY THE VARIOUS
INSTANCES AS "POLITICAL QUESTIONS" IS RATHER A FORM OF STATING THIS
CONCLUSION THAN REVEALING OF ANALYSIS.  (FN10)  SOME OF THE CASES SO
LABELLED HAVE NO RELEVANCE HERE.  BUT FROM OTHERS EMERGE UNIFYING
CONSIDERATIONS THAT ARE COMPELLING. 

1.  THE CASES CONCERNING WAR OR FOREIGN AFFAIRS, FOR EXAMPLE, ARE
USUALLY EXPLAINED BY THE NECESSITY OF THE COUNTRY'S SPEAKING WITH ONE
VOICE IN SUCH MATTERS.  WHILE THIS CONCERN ALONE UNDOUBTEDLY ACCOUNTS
FOR MANY OF THE DECISIONS, (FN11) OTHERS DO NOT FIT THE PATTERN.  IT
WOULD HARDLY EMBARRASS THE CONDUCT OF WAR WERE THIS COURT TO DETERMINE,
IN CONNECTION WITH PRIVATE TRANSACTIONS BETWEEN LITIGANTS, THE DATE
UPON WHICH WAR IS TO BE DEEMED TERMINATED.  BUT THE COURT HAS REFUSED
TO DO SO.  SEE, E.G., THE PROTECTOR, 12 WALL.  700; BROWN V. HIATTS, 15
WALL.  177; ADGER V. ALSTON, 15 WALL.  555; WILLIAMS V. BRUFFY, 96 U.S.
176, 192-193.  IT DOES NOT SUFFICE TO EXPLAIN SUCH CASES AS LUDECKE V.
WATKINS, 335 U.S. 160 - DEFERRING TO POLITICAL DETERMINATION THE
QUESTION OF THE DURATION OF WAR FOR PURPOSES OF THE PRESIDENTIAL POWER
TO DEPORT ALIEN ENEMIES - THAT JUDICIAL INTRUSION WOULD SERIOUSLY
IMPEDE THE PRESIDEN'T POWER EFFECTIVELY TO PROTECT THE COUNTRY'S
INTERESTS IN TIME OF WAR.  OF COURSE, THIS IS TRUE; BUT THE PRECISE
ISSUE PRESENTED IS THE DURATION OF THE TIME OF WAR WHICH DEMANDS THE
POWER.  CF. MARTIN V. MOTT, 12 WHEAT.  19; LAMAR V. BROWNE, 92 U.S.
187, 193; HAMILTON V. KENTUCKY DISTILLERIES & WAREHOUSE CO., 251 U.S.
146; KAHN V. ANDERSON, 255 U.S. 1.  AND EVEN FOR THE PURPOSE OF
DETERMINING THE EXTENT OF CONGRESSIONAL REGULATORY POWER OVER THE
TRIBES AND DEPENDENT COMMUNITIES OF INDIANS, IT IS ORDINARILY FOR
CONGRESS, NOT THE COURT, TO DETERMINE WHETHER OR NOT A PARTICULAR
INDIAN GROUP RETAINS THE CHARACTERISTICS CONSTITUTIONALLY REQUISITE TO
CONFER THE POWER.  (FN12)  E.G., UNITED STATES V. HOLLIDAY, 3 WALL. 
407; TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286; UNITED STATES V.
SANDOVAL, 231 U.S. 28.  A CONTROLLING FACTOR IN SUCH CASES IS THAT,
DECISION RESPECTING THESE KINDS OF COMPLEX MATTERS OF POLICY BEING
TRADITIONALLY COMMITTED NOT TO COURTS BUT TO THE POLITICAL AGENCIES OF
GOVERNMENT FOR DETERMINATION BY CRITERIA OF POLITICAL EXPEDIENCY, THERE
EXISTS NO STANDARD ASCERTAINABLE BY SETTLED JUDICIAL EXPERIENCE OR
PROCESS BY REFERENCE TO WHICH A POLITICAL DECISION AFFECTING THE
QUESTION AT ISSUE BETWEEN THE PARTIES CAN BE JUDGED.  WHERE THE
QUESTION ARISES IN THE COURSE OF A LITIGATION INVOLVING PRIMARILY THE
ADJUDICATION OF OTHER ISSUES BETWEEN THE LITIGANTS, THE COURT ACCEPTS
AS A BASIS FOR ADJUDICATION THE POLITICAL DEPARTMENTS' DECISION OF IT.
BUT WHERE ITS DETERMINATION IS THE SOLE FUNCTION TO BE SERVED BY THE
EXERCISE OF THE JUDICIAL POWER, THE COURT WILL NOT ENTERTAIN THE
ACTION.  SEE CHICAGO & SOUTHERN AIR LINES, INC., V. WATERMAN S.S.
CORP., 333 U.S. 103.  THE DOMINANT CONSIDERATION IS "THE LACK OF
SATISFACTORY CRITERIA FOR A JUDICIAL DETERMINATION  ...  ."  MR. CHIEF
JUSTICE HUGHES, FOR THE COURT, IN COLEMAN V. MILLER, 307 U.S. 433, 454
455.  COMPARE UNITED STATES V. ROGERS, 4 HOW.  567, 572, WITH WORCESTER
V. GEORGIA, 6 PET. 515.  (FN13) 

THIS MAY BE, LIKE SO MANY QUESTIONS OF LAW, A MATTER OF DEGREE. 
QUESTIONS HAVE ARISEN UNDER THE CONSTITUTION TO WHICH ADJUDICATION
GIVES ANSWER ALTHOUGH THE CRITERIA FOR DECISION ARE LESS THAN
UNWAVERING BRIGHT LINES.  OFTEN IN THESE CASES ILLUMINATION WAS FOUND
IN THE FEDERAL STRUCTURES ESTABLISHED BY, OR THE UNDERLYING
PRESUPPOSITIONS OF, THE CONSTITUTION.  WITH RESPECT TO SUCH QUESTIONS,
THE COURT HAS RECOGNIZED THAT, CONCERNING A PARTICULAR POWER OF
CONGRESS PUT IN ISSUE, " ...  EFFECTIVE RESTRAINTS ON ITS EXERCISE MUST
PROCEED FROM POLITICAL RATHER THAN FROM JUDICIAL PROCESSES."  WICKARD
V. FILBURN, 317 U.S. 111, 120.  IT IS ALSO TRUE THAT EVEN REGARDING THE
DURATION OF WAR AND THE STATUS OF INDIAN TRIBES, REFERRED TO ABOVE AS
SUBJECTS ORDINARILY COMMITTED EXCLUSIVELY TO THE NON-JUDICIAL BRANCHES,
THE COURT HAS SUGGESTED THAT SOME LIMITATIONS EXIST UPON THE RANGE
WITHIN WHICH THE DECISIONS OF THOSE BRANCHES WILL BE PERMITTED TO GO
UNREVIEWED.  SEE UNITED STATES V. SANDOVAL, SUPRA, AT 46; CF.
CHASTLETON CORP. V. SINCLAIR, 264 U.S. 543.  BUT THIS IS MERELY TO
ACKNOWLEDGE THAT PARTICULAR CIRCUMSTANCES MAY DIFFER SO GREATLY IN
DEGREE AS TO DIFFER THEREBY IN KIND, AND THAT, ALTHOUGH WITHIN A
CERTAIN RANGE OF CASES ON A CONTINUUM, NO STANDARD OF DISTINCTION CAN
BE FOUND TO TELL BETWEEN THEM, OTHER CASES WILL FALL ABOVE OR BELOW THE
RANGE.  THE DOCTRINE OF POLITICAL QUESTIONS, LIKE ANY OTHER, IS NOT TO
BE APPLIED BEYOND THE LIMITS OF ITS OWN LOGIC, WITH ALL THE QUIDDITIES
AND ABSTRACT DISHARMONIES IT MAY MANIFEST.  SEE THE DISPOSITION OF
CONTENTIONS BASED ON LOGICALLY DISTORTING VIEWS OF COLEGROVE V. GREEN
AND HUNTER V. PITTSBURGH, 207 U.S. 161, IN GOMILLION V. LIGHTFOOT, 364
U.S. 339.   2.  THE COURT HAS BEEN PARTICULARLY UNWILLING TO INTERVENE
IN MATTERS CONCERNING THE STRUCTURE AND ORGANIZATION OF THE POLITICAL
INSTITUTIONS OF THE STATES.  THE ABSTENTION FROM JUDICIAL ENTRY INTO
SUCH AREAS HAS BEEN GREATER EVEN THAN THAT WHICH MARKS THE COURT'S
ORDINARY APPROACH TO ISSUES OF STATE POWER CHALLENGED UNDER BROAD
FEDERAL GUARANTEES.  "WE SHOULD BE VERY RELUCTANT TO DECIDE THAT WE HAD
JURISDICTION IN SUCH A CASE, AND THUS IN AN ACTION OF THIS NATURE TO
SUPERVISE AND REVIEW THE POLITICAL ADMINISTRATION OF A STATE GOVERNMENT
BY ITS OWN OFFICIALS AND THROUGH ITS OWN COURTS.  THE JURISDICTION OF
THIS COURT WOULD ONLY EXIST IN CASE THERE HAD BEEN  ...  SUCH A PLAIN
AND SUBSTANTIAL DEPARTURE FROM THE FUNDAMENTAL PRINCIPLES UPON WHICH
OUR GOVERNMENT IS BASED THAT IT COULD WITH TRUTH AND PROPRIETY BE SAID
THAT IF THE JUDGMENT WERE SUFFERED TO REMAIN, THE PARTY AGGRIEVED WOULD
BE DEPRIVED OF HIS LIFE, LIBERTY OR PROPERTY IN VIOLATION OF THE
PROVISIONS OF THE FEDERAL CONSTITUTION."  WILSON V. NORTH CAROLINA, 169
U.S. 586, 596.  SEE TAYLOR AND MARSHALL V. BECKHAM (NO. 1), 178 U.S.
548; WALTON V. HOUSE OF REPRESENTATIVES, 265 U.S. 487; SNOWDEN V.
HUGHES, 321 U.S. 1.  CF. IN RE SAWYER, 124 U.S. 200, 220-221. 

WHERE, HOWEVER, STATE LAW HAD MADE PARTICULAR FEDERAL QUESTIONS
DETERMINATIVE OF RELATIONS WITHIN THE STRUCTURE OF STATE GOVERNMENT,
NOT IN CHALLENGE OF IT, THE COURT HAS RESOLVED SUCH NARROW, LEGALLY
DEFINED QUESTIONS IN PROPER PROCEEDINGS.  SEE BOYD V. NEBRASKA EX REL.
THAYER, 143 U.S. 135.  IN SUCH INSTANCES THERE IS NO CONFLICT BETWEEN
STATE POLICY AND THE EXERCISE OF FEDERAL JUDICIAL POWER.  THIS
DISTINCTION EXPLAINS THE DECISIONS IN SMILEY V. HOLM, 285 U.S. 355;
KOENIG V. FLYNN, 285 U.S. 375; AND CARROLL V. BECKER, 285 U.S. 380, IN
WHICH THE COURT RELEASED STATE CONSTITUTIONAL PROVISIONS PRESCRIBING
LOCAL LAWMAKING PROCEDURES FROM MISCONCEIVED RESTRICTION OF SUPERIOR
FEDERAL REQUIREMENTS.  ADJUDICATION OF THE FEDERAL CLAIM INVOLVED IN
THOSE CASES WAS NOT ONE DEMANDING THE ACCOMMODATION OF CONFLICTING
INTERESTS FOR WHICH NO READILY ACCESSIBLE JUDICIAL STANDARDS COULD BE
FOUND.  SEE MCPHERSON V. BLACKER, 146 U.S. 1, IN WHICH, IN A CASE
COMING HERE ON WRIT OF ERROR FROM THE JUDGMENT OF A STATE COURT WHICH
HAD ENTERTAINED IT ON THE MERITS, THE COURT TREATED AS JUSTICIABLE THE
CLAIM THAT A STATE COULD NOT CONSTITUTIONALLY SELECT ITS PRESIDENTIAL
ELECTORS BY DISTRICTS, BUT HELD THAT ART. II, SEC. 1, CL. 2, OF THE
CONSTITUTION LEFT THE MODE OF CHOOSING ELECTORS IN THE ABSOLUTE
DISCRETION OF THE STATES.  CF. POPE V. WILLIAMS, 193 U.S. 621;
BREEDLOVE V. SUTTLES, 302 U.S. 277.  TO READ WITH LITERALNESS THE
ABSTRACTED JURISDICTIONAL DISCUSSION IN THE MCPHERSON OPINION REVEALS
THE DANGER OF CONCEPTIONS OF "JUSTICIABILITY" DERIVED FROM TALK AND NOT
FROM THE EFFECTIVE DECISION IN A CASE.  IN PROBING BENEATH THE SURFACE
OF CASES IN WHICH THE COURT HAS DECLINED TO INTERFERE WITH THE ACTIONS
OF POLITICAL ORGANS OF GOVERNMENT, OF DECISIVE SIGNIFICANCE IS WHETHER
IN EACH SITUATION THE ULTIMATE DECISION HAS BEEN TO INTERVENE OR NOT TO
INTERVENE.  COMPARE THE RELIANCE IN SOUTH V. PETERS, 339 U.S. 276, ON
MACDOUGALL V. GREEN, 335 U.S. 281, AND THE "JURISDICTIONAL" FORM OF THE
OPINION IN WILSON V. NORTH CAROLINA, 169 U.S. 586, 596, SUPRA. 

3.  THE CASES INVOLVING NEGRO DISFRANCHISEMENT ARE NO EXCEPTION TO
THE PRINCIPLE OF AVOIDING FEDERAL JUDICIAL INTERVENTION INTO MATTERS OF
STATE GOVERNMENT IN THE ABSENCE OF AN EXPLICIT AND CLEAR CONSTITUTIONAL
IMPERATIVE.  FOR HERE THE CONTROLLING COMMAND OF SUPREME LAW IS PLAIN
AND UNEQUIVOCAL.  AN END OF DISCRIMINATION AGAINST THE NEGRO WAS THE
COMPELLING MOTIVE OF THE CIVIL WAR AMENDMENTS.  THE FIFTEENTH EXPRESSES
THIS IN TERMS, AND IT IS NO LESS TRUE OF THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH.  SLAUGHTER-HOUSE CASES, 16 WALL.  36, 67-72; STRAUDER
V. WEST VIRGINIA, 100 U.S. 303, 306-307; NIXON V. HERNDON, 273 U.S.
536, 541.  THUS THE COURT, IN CASES INVOLVING DISCRIMINATION AGAINST
THE NEGRO'S RIGHT TO VOTE, HAS RECOGNIZED NOT ONLY THE ACTION AT LAW
FOR DAMAGES, (FN14) BUT, IN APPROPRIATE CIRCUMSTANCES, THE
EXTRAORDINARY REMEDY OF DECLARATORY OR INJUNCTIVE RELIEF.  (FN15)
SCHNELL V. DAVIS, 336 U.S. 933; TERRY V. ADAMS, 345 U.S. 461.  (FN16)
INJUNCTIONS IN THESE CASES, IT SHOULD BE NOTED, WOULD NOT HAVE
RESTRAINED STATE-WIDE GENERAL ELECTIONS.  COMPARE GILES V. HARRIS, 189
U.S. 475. 

4.  THE COURT HAS REFUSED TO EXERCISE ITS JURISDICTION TO PASS ON
"ABSTRACT QUESTIONS OF POLITICAL POWER, OF SOVEREIGNTY, OF
GOVERNMENT."  MASSACHUSETTS V. MELLON, 262 U.S. 447, 485.  SEE TEXAS V.
INTERSTATE COMMERCE COMMISSION, 258 U.S. 158, 162; NEW JERSEY V.
SARGENT, 269 U.S. 328, 337.  THE "POLITICAL QUESTION" DOCTRINE, IN THIS
ASPECT, REFLECTS THE POLICIES UNDERLYING THE REQUIREMENT OF "STANDING":
THAT THE LITIGANT WHO WOULD CHALLENGE OFFICIAL ACTION MUST CLAIM
INFRINGEMENT OF AN INTEREST PARTICULAR AND PERSONAL TO HIMSELF, AS
DISTINGUISHED FROM A CAUSE OF DISSATISFACTION WITH THE GENERAL FRAME
AND FUNCTIONING OF GOVERNMENT - A COMPLAINT THAT THE POLITICAL
INSTITUTIONS ARE AWRY.  SEE STEARNS V. WOOD, 236 U.S. 75; FAIRCHILD V.
HUGHES, 258 U.S. 126; UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75,
89-91.  WHAT RENDERS CASES OF THIS KIND NON-JUSTICIABLE IS NOT
NECESSARILY THE NATURE OF THE PARTIES TO THEM, FOR THE COURT HAS
RESOLVED OTHER ISSUES BETWEEN SIMILAR PARTIES; (FN17) NOR IS IT THE
NATURE OF THE LEGAL QUESTION INVOLVED, FOR THE SAME TYPE OF QUESTION
HAS BEEN ADJUDICATED WHEN PRESENTED IN OTHER FORMS OF CONTROVERSY. 
(FN18)  THE CRUX OF THE MATTER IS THAT COURTS ARE NOT FIT INSTRUMENTS
OF DECISION WHERE WHAT IS ESSENTIALLY AT STAKE IS THE COMPOSITION OF
THOSE LARGE CONTESTS OF POLICY TRADITIONALLY FOUGHT OUT IN NON-JUDICIAL
FORUMS, BY WHICH GOVERNMENTS AND THE ACTIONS OF GOVERNMENTS ARE MADE
AND UNMADE.  SEE TEXAS V. WHITE, 7 WALL.  700; WHITE V. HART, 13 WALL. 
646; PHILLIPS V. PAYNE, 92 U.S. 130; MARSH V. BURROUGHS, 1 WOODS 463,
471-472 (BRADLEY, CIRCUIT JUSTICE); CF. WILSON V. SHAW, 204 U.S. 24;
BUT SEE COYLE V. SMITH, 221 U.S. 559.  THUS, WHERE THE CHEROKEE NATION
SOUGHT BY AN ORIGINAL MOTION TO RESTRAIN THE STATE OF GEORGIA FROM THE
ENFORCEMENT OF LAWS WHICH ASSIMILATED CHEROKEE TERRITORY TO THE STATE'S
COUNTIES, ABROGATED CHEROKEE LAW, AND ABOLISHED CHEROKEE GOVERNMENT,
THE COURT HELD THAT SUCH A CLAIM WAS NOT JUDICIALLY COGNIZABLE. 
CHEROKEE NATION V. GEORGIA, 5 PET. 1.  (FN19)  AND IN GEORGIA V.
STANTON, 6 WALL.  50, THE COURT DISMISSED FOR WANT OF JURISDICTION A
BILL BY THE STATE OF GEORGIA SEEKING TO ENJOIN ENFORCEMENT OF THE
RECONSTRUCTION ACTS ON THE GROUND THAT THE COMMAND BY MILITARY
DISTRICTS WHICH THEY ESTABLISHED EXTINGUISHED EXISTING STATE GOVERNMENT
AND REPLACED IT WITH A FORM OF GOVERNMENT UNAUTHORIZED BY THE
CONSTITUTION:  (FN20) 

"THAT THESE MATTERS, BOTH AS STATED IN THE BODY OF THE BILL, AND, IN
THE PRAYERS FOR RELIEF, CALL FOR THE JUDGMENT OF THE COURT UPON
POLITICAL QUESTIONS, AND, UPON RIGHTS, NOT OF PERSONS OR PROPERTY, BUT
OF A POLITICAL CHARACTER, WILL HARDLY BE DENIED.  FOR THE RIGHTS FOR
THE PROTECTION OF WHICH OUR AUTHORITY IS INVOKED, ARE THE RIGHTS OF
SOVEREIGNTY, OF POLITICAL JURISDICTION, OF GOVERNMENT, OF CORPORATE
EXISTENCE AS A STATE, WITH ALL ITS CONSTITUTIONAL POWERS AND
PRIVILEGES.  NO CASE OF PRIVATE RIGHTS OR PRIVATE PROPERTY INFRINGED,
OR IN DANGER OF ACTUAL OR THREATENED INFRINGEMENT, IS PRESENTED BY THE
BILL, IN A JUDICIAL FORM, FOR THE JUDGMENT OF THE COURT."  ID., AT 77. 
(FN21) 

5.  THE INFLUENCE OF THESE CONVERGING CONSIDERATIONS - THE CAUTION
NOT TO UNDERTAKE DECISION WHERE STANDARDS MEET FOR JUDICIAL JUDGMENT
ARE LACKING, THE RELUCTANCE TO INTERFERE WITH MATTERS OF STATE
GOVERNMENT IN THE ABSENCE OF AN UNQUESTIONABLE AND EFFECTIVELY
ENFORCEABLE MANDATE, THE UNWILLINGNESS TO MAKE COURTS ARBITERS OF THE
BROAD ISSUES OF POLITICAL ORGANIZATION HISTORICALLY COMMITTED TO OTHER
INSTITUTIONS AND FOR WHOSE ADJUSTMENT THE JUDICIAL PROCESS IS ILL
ADAPTED - HAS BEEN DECISIVE OF THE SETTLED LINE OF CASES, REACHING BACK
MORE THAN A CENTURY, WHICH HOLDS THAT ART. IV, SEC. 4, OF THE
CONSTITUTION, GUARANTEEING TO THE STATES "A REPUBLICAN FORM OF
GOVERNMENT," (FN22) IS NOT ENFORCEABLE THROUGH THE COURTS.  E.G.,
O'NEILL V. LEAMER, 239 U.S. 244; MOUNTAIN TIMBER CO. V. WASHINGTON, 243
U.S. 219; COCHRAN V. BOARD OF EDUCATION, 281 U.S. 370; HIGHLAND FARMS
DAIRY, INC., V. AGNEW, 300 U.S. 608.  (FN23)  CLAIMS RESTING ON THIS
SPECIFIC GUARANTEE OF THE CONSTITUTION HAVE BEEN HELD NON-JUSTICIABLE
WHICH CHALLENGED STATE DISTRIBUTION OF POWERS BETWEEN THE LEGISLATIVE
AND JUDICIAL BRANCHES, OHIO EX REL. BRYANT V. AKRON METROPOLITAN PARK
DISTRICT, 281 U.S. 74, STATE DELEGATION OF POWER TO MUNICIPALITIES,
KIERNAN V. PORTLAND, OREGON, 223 U.S. 151, STATE ADOPTION OF THE
REFERENDUM AS A LEGISLATIVE INTITUTION, OHIO EX REL. DAVIS V.
HILDEBRANT, 241 U.S. 565, 569, AND STATE RESTRICTION UPON THE POWER OF
STATE CONSTITUTIONAL AMENDMENT, MARSHALL V. DYE, 231 U.S. 250, 256
257.  THE SUBJECT WAS FULLY CONSIDERED IN PACIFIC STATES TELEPHONE &
TELEGRAPH CO. V. OREGON, 223 U.S. 118, IN WHICH THE COURT DISMISSED FOR
WANT OF JURISDICTION A WRIT OF ERROR ATTACKING A STATE LICENSE-TAX
STATUTE ENACTED BY THE INITIATIVE, ON THE CLAIM THAT THIS MODE OF
LEGISLATION WAS INCONSISTENT WITH A REPUBLICAN FORM OF GOVERNMENT AND
VIOLATED THE EQUAL PROTECTION CLAUSE AND OTHER FEDERAL GUARANTEES. 
AFTER NOTING "  ...  THE RUINOUS DESTRUCTION OF LEGISLATIVE AUTHORITY
IN MATTERS PURELY POLITICAL WHICH WOULD NECESSARILY BE OCCASIONED BY
GIVING SANCTION TO THE DOCTRINE WHICH UNDERLIES AND WOULD BE
NECESSARILY INVOLVED IN SUSTAINING THE PROPOSITIONS CONTENDED FOR,"
(FN24) THE COURT SAID: 

"  ...  THE ESSENTIALLY POLITICAL NATURE (OF THIS CLAIM) IS AT ONCE
MADE MANIFEST BY UNDERSTANDING THAT THE ASSAULT WHICH THE CONTENTION
HERE ADVANCED MAKES IT NOT ON THE TAX AS A TAX, BUT ON THE STATE AS A
STATE.  IT IS ADDRESSED TO THE FRAMEWORK AND POLITICAL CHARACTER OF THE
GOVERNMENT BY WHICH THE STATUTE LEVYING THE TAX WAS PASSED.  IT IS THE
GOVERNMENT, THE POLITICAL ENTITY, WHICH (REDUCING THE CASE TO ITS
ESSENCE) IS CALLED TO THE BAR OF THIS COURT, NOT FOR THE PURPOSE OF
TESTING JUDICIALLY SOME EXERCISE OF POWER ASSAILED, ON THE GROUND THAT
ITS EXERTION HAS INJURIOUSLY AFFECTED THE RIGHTS OF AN INDIVIDUAL
BECAUSE OF REPUGNANCY TO SOME CONSTITUTIONAL LIMITATION, BUT TO DEMAND
OF THE STATE THAT IT ESTABLISH ITS RIGHT TO EXIST AS A STATE,
REPUBLICAN IN FORM."  ID., AT 150-151. 

THE STARTING POINT OF THE DOCTRINE APPLIED IN THESE CASES IS, OF
COURSE, LUTHER V. BORDEN, 7 HOW.  1.  THE CASE AROSE OUT OF THE DORR
REBELLION IN RHODE ISLAND IN 1841-1842.  RHODE ISLAND, AT THE TIME OF
THE SEPARATION FROM ENGLAND, HAD NOT ADOPTED A NEW CONSTITUTION BUT HAD
CONTINUED, IN ITS EXISTENCE AS AN INDEPENDENT STATE, UNDER ITS ORIGINAL
ROYAL CHARTER, WITH CERTAIN STATUTORY ALTERATIONS.  THIS FRAME OF
GOVERNMENT PROVIDED NO MEANS FOR AMENDMENT OF THE FUNDAMENTAL LAW; THE
RIGHT OF SUFFRAGE WAS TO BE PRESCRIBED BY LEGISLATION, WHICH LIMITED IT
TO FREEHOLDERS.  IN THE 1830'S, LARGELY BECAUSE OF THE GROWTH OF TOWNS
IN WHICH THERE DEVELOPED A PROPERTIED CLASS WHOSE MEANS WERE NOT
REPRESENTED BY FREEHOLD ESTATES, DISSATISFACTION AROSE WITH THE
SUFFRAGE QUALIFICATIONS OF THE CHARTER GOVERNMENT.  IN ADDITION,
POPULATION SHIFTS HAD CAUSED A DATED APPORTIONMENT OF SEATS IN THE
LOWER HOUSE TO YIELD SUBSTANTIAL NUMERICAL INEQUALITY OF POLITICAL
INFLUENCE, EVEN AMONG QUALIFIED VOTERS.  THE TOWNS FELT THEMSELVES
UNDERREPRESENTED, AND AGITATION BEGAN FOR ELECTORAL REFORM.  WHEN THE
CHARTER GOVERNMENT FAILED TO RESPOND, POPULAR MEETINGS OF THOSE WHO
FAVORED THE BROADER SUFFRAGE WERE HELD AND DELEGATES ELECTED TO A
CONVENTION WHICH MET AND DRAFTED A STATE CONSTITUTION.  THIS
CONSTITUTION PROVIDED FOR UNIVERSAL MANHOOD SUFFRAGE (WITH CERTAIN
QUALIFICATIONS); AND IT WAS TO BE ADOPTED BY VOTE OF THE PEOPLE AT
ELECTIONS AT WHICH A SIMILARLY EXPANSIVE FRANCHISE OBTAINED.  THIS NEW
SCHEME OF GOVERNMENT WAS RATIFIED AT THE POLLS AND DECLARED EFFECTIVE
BY THE CONVENTION, BUT THE GOVERNMENT ELECTED AND ORGANIZED UNDER IT,
WITH DORR AT ITS HEAD, NEVER CAME TO POWER.  THE CHARTER GOVERNMENT
DENIED THE VALIDITY OF THE CONVENTION, THE CONSTITUTION AND ITS
GOVERNMENT AND, AFTER AN INSIGNIFICANT SKIRMISH, ROUTED DORR AND HIS
FOLLOWERS.   IT MEANWHILE PROVIDED FOR THE CALLING OF ITS OWN
CONVENTION, WHICH DRAFTED A CONSTITUTION THAT WENT PEACEFULLY INTO
EFFECT IN 1843.  (FN25) 

LUTHER V. BORDEN WAS A TRESPASS ACTION BROUGHT BY ONE OF DORR'S
SUPPORTERS IN A UNITED STATES CIRCUIT COURT TO RECOVER DAMAGES FOR THE
BREAKING AND ENTERING OF HIS HOUSE.  THE DEFENDANTS JUSTIFIED UNDER
MILITARY ORDERS PURSUANT TO MARTIAL LAW DECLARED BY THE CHARTER
GOVERNMENT, AND PLAINTIFF, BY HIS REPLY, JOINED ISSUE ON THE LEGALITY
OF THE CHARTER GOVERNMENT SUBSEQUENT TO THE ADOPTION OF THE DORR
CONSTITUTION.  EVIDENCE OFFERED BY THE PLAINTIFF TENDING TO ESTABLISH
THAT THE DORR GOVERNMENT WAS THE RIGHTFUL GOVERNMENT OF RHODE ISLAND
WAS REJECTED BY THE CIRCUIT COURT; THE COURT CHARGED THE JURY THAT THE
CHARTER GOVERNMENT WAS LAWFUL; AND ON A VERDICT FOR DEFENDANTS,
PLAINTIFF BROUGHT A WRIT OF ERROR TO THIS COURT. 

THE COURT, THROUGH MR. CHIEF JUSTICE TANEY, AFFIRMED.  AFTER NOTING
THAT THE ISSUE OF THE CHARTER GOVERNMENT'S LEGALITY HAD BEEN RESOLVED
IN THAT GOVERNMENT'S FAVOR BY THE STATE COURTS OF RHODE ISLAND - THAT
THE STATE COURTS, DEEMING THE MATTER A POLITICAL ONE UNFIT FOR JUDICIAL
DETERMINATION, HAD DECLINED TO ENTERTAIN ATTACKS UPON THE EXISTENCE AND
AUTHORITY OF THE CHARTER GOVERNMENT - THE CHIEF JUSTICE HELD THAT THE
COURTS OF THE UNITED STATES MUST FOLLOW THOSE OF THE STATE IN THIS
REGARD.  ID., AT 39-40.  IT WAS RECOGNIZED THAT THE COMPULSION TO
FOLLOW STATE LAW WOULD NOT APPLY IN A FEDERAL COURT IN THE FACE OF A
SUPERIOR COMMAND FOUND IN THE FEDERAL CONSTITUTION, IBID., BUT NO SUCH
COMMAND WAS FOUND.  THE CONSTITUTION, THE COURT SAID - REFERRING TO THE
GUARANTEE CLAUSE OF THE FOURTH ARTICLE - "  ...  AS FAR AS IT HAS
PROVIDED FOR AN EMERGENCY OF THIS KIND, AND AUTHORIZED THE GENERAL
GOVERNMENT TO INTERFERE IN THE DOMESTIC CONCERNS OF A STATE, HAS
TREATED THE SUBJECT AS POLITICAL IN ITS NATURE, AND PLACED THE POWER IN
THE HANDS OF THAT DEPARTMENT."  ID., AT 42.    "UNDER THIS ARTICLE OF
THE CONSTITUTION IT RESTS WITH CONGRESS TO DECIDE WHAT GOVERNMENT IS
THE ESTABLISHED ONE IN A STATE.  FOR AS THE UNITED STATES GUARANTEE TO
EACH STATE A REPUBLICAN GOVERNMENT, CONGRESS MUST NECESSARILY DECIDE
WHAT GOVERNMENT IS ESTABLISHED IN THE STATE BEFORE IT CAN DETERMINE
WHETHER IT IS REPUBLICAN OR NOT.  AND WHEN THE SENATORS AND
REPRESENTATIVES OF A STATE ARE ADMITTED INTO THE COUNCILS OF THE UNION,
THE AUTHORITY OF THE GOVERNMENT UNDER WHICH THEY ARE APPOINTED, AS WELL
AS ITS REPUBLICAN CHARACTER, IS RECOGNIZED BY THE PROPER CONSTITUTIONAL
AUTHORITY.  AND ITS DECISION IS BINDING ON EVERY OTHER DEPARTMENT OF
THE GOVERNMENT, AND COULD NOT BE QUESTIONED IN A JUDICIAL TRIBUNAL.  IT
IS TRUE THAT THE CONTEST IN THIS CASE DID NOT LAST LONG ENOUGH TO BRING
THE MATTER TO THIS ISSUE; AND AS NO SENATORS OR REPRESENTATIVES WERE
ELECTED UNDER THE AUTHORITY OF THE GOVERNMENT OF WHICH MR. DORR WAS THE
HEAD, CONGRESS WAS NOT CALLED UPON TO DECIDE THE CONTROVERSY.  YET THE
RIGHT TO DECIDE IS PLACED THERE, AND NOT IN THE COURTS."  IBID. (FN26) 

IN DETERMINING THIS ISSUE NON-JUSTICIABLE, THE COURT WAS SENSITIVE TO
THE SAME CONSIDERATIONS TO WHICH ITS LATER DECISIONS HAVE GIVEN THE
VARIED APPLICATIONS ALREADY DISCUSSED.  IT ADVERTED TO THE DELICACY OF
JUDICIAL INTERVENTION INTO THE VERY STRUCTURE OF GOVERNMENT.  (FN27)
IT ACKNOWLEDGED THAT TRADITION HAD LONG ENTRUSTED QUESTIONS OF THIS
NATURE TO NON-JUDICIAL PROCESSES, (FN28) AND THAT JUDICIAL PROCESSES
WERE UNSUITED TO THEIR DECISION.  (FN29)  THE ABSENCE OF GUIDING
STANDARDS FOR JUDGMENT WAS CRITICAL, FOR THE QUESTION WHETHER THE DORR
CONSTITUTION HAD BEEN RIGHTFULLY ADOPTED DEPENDED, IN PART, UPON THE
EXTENT OF THE FRANCHISE TO BE RECOGNIZED - THE VERY POINT OF CONTENTION
OVER WHICH REBELLION HAD BEEN FOUGHT. 

"  ...  IF THE CIRCUIT COURT HAD ENTERED UPON THIS INQUIRY, BY WHAT
RULE COULD IT HAVE DETERMINED THE QUALIFICATION OF VOTERS UPON THE
ADOPTION OR REJECTION OF THE PROPOSED CONSTITUTION, UNLESS THERE WAS
SOME PREVIOUS LAW OF THE STATE TO GUIDE IT?  IT IS THE PROVINCE OF A
COURT TO EXPOUND THE LAW, NOT TO MAKE IT.  AND CERTAINLY IT IS NO PART
OF THE JUDICIAL FUNCTIONS OF ANY COURT OF THE UNITED STATES TO
PRESCRIBE THE QUALIFICATIONS OF VOTERS IN A STATE, GIVING THE RIGHT TO
THOSE TO WHOM IT IS DENIED BY THE WRITTEN AND ESTABLISHED CONSTITUTION
AND LAWS OF THE STATE, OR TAKING IT AWAY FROM THOSE TO WHOM IT IS
GIVEN; NOR HAS IT THE RIGHT TO DETERMINE WHAT POLITICAL PRIVILEGES THE
CITIZENS OF A STATE ARE ENTITLED TO, UNLESS THERE IS AN ESTABLISHED
CONSTITUTION OR LAW TO GOVERN ITS DECISION."  ID., AT 41. 

MR. JUSTICE WOODBURY (WHO DISSENTED WITH RESPECT TO THE EFFECT OF
MARTIAL LAW) AGREED WITH THE COURT REGARDING THE INAPPROPRIATENESS OF
JUDICIAL INQUIRY INTO THE ISSUES: 

"BUT, FORTUNATELY FOR OUR FREEDOM FROM POLITICAL EXCITEMENTS IN
JUDICIAL DUTIES, THIS COURT CAN NEVER WITH PROPRIETY BE CALLED ON
OFFICIALLY TO BE THE UMPIRE IN QUESTIONS MERELY POLITICAL.  THE
ADJUSTMENT OF THESE QUESTIONS BELONGS TO THE PEOPLE AND THEIR POLITICAL
REPRESENTATIVES, EITHER IN THE STATE OR GENERAL GOVERNMENT.  THESE
QUESTIONS RELATE TO MATTERS NOT TO BE SETTLED ON STRICT LEGAL
PRINCIPLES.  THEY ARE ADJUSTED RATHER BY INCLINATION, - OR PREJUDICE OR
COMPROMISE, OFTEN.  SOME OF THEM SUCCEED OR ARE DEFEATED EVEN BY PUBLIC
POLICY ALONE, OR MERE NAKED POWER, RATHER THAN INTRINSIC RIGHT  ...  . 

"ANOTHER EVIL, ALARMING AND LITTLE FORESEEN, INVOLVED IN REGARDING
THESE AS QUESTIONS FOR THE FINAL ARBITRAMENT OF JUDGES WOULD BE, THAT
IN SUCH AN EVENT ALL POLITICAL PRIVILEGES AND RIGHTS WOULD, IN A
DISPUTE AMONG THE PEOPLE, DEPEND ON OUR DECISION FINALLY  ...  .
DISPUTED POINTS IN MAKING CONSTITUTIONS, DEPENDING OFTEN, AS BEFORE
SHOWN, ON POLICY, INCLINATION, POPULAR RESOLVES, AND POPULAR WILL,  ...
IF THE PEOPLE, IN THE DISTRIBUTION OF POWERS UNDER THE CONSTITUTION,
SHOULD EVER THINK OF MAKING JUDGES SUPREME ARBITERS IN POLITICAL
CONTROVERSIES, WHEN NOT SELECTED BY NOR, FREQUENTLY, AMENABLE TO THEM,
NOR AT LIBERTY TO FOLLOW SUCH VARIOUS CONSIDERATIONS IN THEIR JUDGMENTS
AS BELONG TO MERE POLITICAL QUESTIONS, THEY WILL DETHRONE THEMSELVES
AND LOSE ONE OF THEIR OWN INVALUABLE BIRTHRIGHTS; BUILDING UP IN THIS
WAY - SLOWLY, BUT SURELY - A NEW SOVEREIGN POWER IN THE REPUBLIC, IN
MOST RESPECTS IRRESPONSIBLE AND UNCHANGEABLE FOR LIFE, AND ONE MORE
DANGEROUS, IN THEORY AT LEAST, THAN THE WORST ELECTIVE OLIGARCHY IN THE
WORST OF TIMES  ...  ."  ID., AT 51-53.  (FN30)

         III. 

THE PRESENT CASE INVOLVES ALL OF THE ELEMENTS THAT HAVE MADE THE
GUARANTEE CLAUSE CASES NON-JUSTICIABLE.  IT IS, IN EFFECT, A GUARANTEE
CLAUSE CLAIM MASQUERADING UNDER A DIFFERENT LABEL.  BUT IT CANNOT MAKE
THE CASE MORE FIT FOR JUDICIAL ACTION THAT APPELLANTS INVOKE THE
FOURTEENTH AMENDMENT RATHER THAN ART. IV, SEC. 4, WHERE, IN FACT, THE
GIST OF THEIR COMPLAINT IS THE SAME - UNLESS IT CAN BE FOUND THAT THE
FOURTEENTH AMENDMENT SPEAKS WITH GREATER PARTICULARITY TO THEIR
SITUATION.  WE HAVE BEEN ADMONISHED TO AVOID "THE TYRANNY OF LABELS." 
SNYDER V. MASSACHUSETTS, 291 U.S. 97, 114.  ART. IV, SEC. 4, IS NOT
COMMITTED BY EXPRESS CONSTITUTIONAL TERMS TO CONGRESS.  IT IS THE
NATURE OF THE CONTROVERSIES ARISING UNDER IT, NOTHING ELSE, WHICH HAS
MADE IT JUDICIALLY UNENFORCEABLE.  OF COURSE, IF A CONTROVERSY FALLS
WITHIN JUDICIAL POWER, IT DEPENDS "ON HOW HE (THE PLAINTIFF) CASTS HIS
ACTION,"  PAN AMERICAN PETROLEUM CORP. V. SUPERIOR COURT, 366 U.S. 656,
662, WHETHER HE BRINGS HIMSELF WITHIN A JURISDICTIONAL STATUTE.  BUT
WHERE JUDICIAL COMPETENCE IS WANTING, IT CANNOT BE CREATED BY INVOKING
ONE CLAUSE OF THE CONSTITUTION RATHER THAN ANOTHER.  WHEN WHAT WAS
ESSENTIALLY A GUARANTEE CLAUSE CLAIM WAS SOUGHT TO BE LAID, AS WELL,
UNDER THE EQUAL PROTECTION CLAUSE IN PACIFIC STATES TELEPHONE &
TELEGRAPH CO. V. OREGON, SUPRA, THE COURT HAD NO DIFFICULTY IN
"DISPELLING ANY MERE CONFUSION RESULTING FROM FORMS OF EXPRESSION AND
CONSIDERING THE SUBSTANCE OF THINGS  ...  ."  223 U.S., AT 140. 

HERE APPELLANTS ATTACK "THE STATE AS A STATE," PRECISELY AS IT WAS
PERCEIVED TO BE ATTACKED IN THE PACIFIC STATES CASE, ID., AT 150. 
THEIR COMPLAINT IS THAT THE BASIS OF REPRESENTATION OF THE TENNESSEE
LEGISLATURE HURTS THEM.  THEY ASSERT THAT "A MINORITY NOW RULES IN
TENNESSEE," THAT THE APPORTIONMENT STATUTE RESULTS IN A "DISTORTION OF
THE CONSTITUTIONAL SYSTEM," THAT THE GENERAL ASSEMBLY IS NO LONGER "A
BODY REPRESENTATIVE OF THE PEOPLE OF THE STATE OF TENNESSEE," ALL
"CONTRARY TO THE BASIC PRINCIPLE OF REPRESENTATIVE GOVERNMENT  ...  ." 
ACCEPTING APPELLANTS' OWN FORMULATION OF THE ISSUE, ONE CAN KNOW THIS
HANDSAW FROM A HAWK.  SUCH A CLAIM WOULD BE NON-JUSTICIABLE NOT MERELY
UNDER ART. IV, SEC. 4, BUT UNDER ANY CLAUSE OF THE CONSTITUTION, BY
VIRTUE OF THE VERY FACT THAT A FEDERAL COURT IS NOT A FORUM FOR
POLITICAL DEBATE.  MASSACHUSETTS V. MELLON, SUPRA. 

BUT APPELLANTS, OF COURSE, DO NOT REST ON THIS CLAIM SIMPLICITER.  IN
INVOKING THE EQUAL PROTECTION CLAUSE, THEY ASSERT THAT THE DISTORTION
OF REPRESENTATIVE GOVERNMENT COMPLAINED OF IS PRODUCED BY SYSTEMATIC
DISCRIMINATION AGAINST THEM, BY WAY OF "A DEBASEMENT OF THEIR VOTES
...  ."  DOES THIS CHARACTERIZATION, WITH DUE REGARD FOR THE FACTS FROM
WHICH IT IS DERIVED, ADD ANYTHING TO APPELLANTS' CASE?  (FN31) 

AT FIRST BLUSH, THIS CHARGE OF DISCRIMINATION BASED ON LEGISLATIVE
UNDERREPRESENTATION IS GIVEN THE APPEARANCE OF A MORE PRIVATE, LESS
IMPERSONAL CLAIM, THAN THE ASSERTION THAT THE FRAME OF GOVERNMENT IS
ASKEW.  APPELLANTS APPEAR AS REPRESENTATIVES OF A CLASS THAT IS
PREJUDICED AS A CLASS, IN CONTRADISTINCTION TO THE POLITY IN ITS
ENTIRETY.  HOWEVER, THE DISCRIMINATION RELIED ON IS THE DEPRIVATION OF
WHAT APPELLANTS CONCEIVE TO BE THEIR PROPORTIONATE SHARE OF POLITICAL
INFLUENCE.  THIS, OF COURSE, IS THE PRACTICAL EFFECT OF ANY ALLOCATION
OF POWER WITHIN THE INSTITUTIONS OF GOVERNMENT.  HARDLY ANY
DISTRIBUTION OF POLITICAL AUTHORITY THAT COULD BE ASSAILED AS RENDERING
GOVERNMENT NON-REPUBLICAN WOULD FAIL SIMILARLY TO OPERATE TO THE
PREJUDICE OF SOME GROUPS, AND TO THE ADVANTAGE OF OTHERS, WITHIN THE
BODY POLITIC.  IT WOULD BE INGENUOUS NOT TO SEE, OR CONSCIOUSLY BLIND
TO DENY, THAT THE REAL BATTLE OVER THE INITIATIVE AND REFERENDUM, OR
OVER A DELEGATION OF POWER TO LOCAL RATHER THAN STATE-WIDE AUTHORITY,
IS THE BATTLE BETWEEN FORCES WHOSE INFLUENCE IS DISPARATE AMONG THE
VARIOUS ORGANS OF GOVERNMENT TO WHOM POWER MAY BE GIVEN.  NO SHIFT OF
POWER BUT WORKS A CORRESPONDING SHIFT IN POLITICAL INFLUENCE AMONG THE
GROUPS COMPOSING A SOCIETY. 

WHAT, THEN, IS THIS QUESTION OF LEGISLATIVE APPORTIONMENT? 
APPELLANTS INVOKE THE RIGHT TO VOTE AND TO HAVE THEIR VOTES COUNTED. 
(FN32)  BUT THEY ARE PERMITTED TO VOTE AND THEIR VOTES ARE COUNTED. 
THEY GO TO THE POLLS, THEY CAST THEIR BALLOTS, THEY SEND THEIR
REPRESENTATIVES TO THE STATE COUNCILS.  THEIR COMPLAINT IS SIMPLY THAT
THE REPRESENTATIVES ARE NOT SUFFICIENTLY NUMEROUS OR POWERFUL - IN
SHORT, THAT TENNESSEE HAS ADOPTED A BASIS OF REPRESENTATION WITH WHICH
THEY ARE DISSATISFIED.  TALK OF "DEBASEMENT" OR "DILUTION" IS CIRCULAR
TALK.  ONE CANNOT SPEAK OF "DEBASEMENT" OR "DILUTION" OF THE VALUE OF A
VOTE UNTIL THERE IS FIRST DEFINED A STANDARD OF REFERENCE AS TO WHAT A
VOTE SHOULD BE WORTH.  WHAT IS ACTUALLY ASKED OF THE COURT IN THIS CASE
IS TO CHOOSE AMONG COMPETING BASES OF REPRESENTATION - ULTIMATELY,
REALLY, AMONG COMPETING THEORIES OF POLITICAL PHILOSOPHY - IN ORDER TO
ESTABLISH AN APPROPRIATE FRAME OF GOVERNMENT FOR THE STATE OF TENNESSEE
AND THEREBY FOR ALL THE STATES OF THE UNION. 

IN SUCH A MATTER, ABSTRACT ANALOGIES WHICH IGNORE THE FACTS OF
HISTORY DEAL IN UNREALITIES; THEY BETRAY REASON.  THIS IS NOT A CASE IN
WHICH A STATE HAS, THROUGH A DEVICE HOWEVER OBLIQUE AND SOPHISTICATED,
DENIED NEGORES OR JEWS OR REDHEADED PERSONS A VOTE, OR GIVEN THEM ONLY
A THIRD OR A SIXTH OF A VOTE.  THAT WAS GOMILLION V. LIGHTFOOT, 364
U.S. 339.  WHAT TENNESSEE ILLUSTRATES IS AN OLD AND STILL WIDESPREAD
METHOD OF REPRESENTATION - REPRESENTATION BY LOCAL GEOGRAPHICAL
DIVISION, ONLY IN PART RESPECTIVE OF POPULATION - IN PREFERENCE TO
OTHERS, OTHERS, FORSOOTH, MORE APPEALING.  APPELLANTS CONTEST THIS
CHOICE AND SEEK TO MAKE THIS COURT THE ARBITER OF THE DISAGREEMENT. 
THEY WOULD MAKE THE EQUAL PROTECTION CLAUSE THE CHARTER OF
ADJUDICATION, ASSERTING THAT THE EQUALITY WHICH IT GUARANTEES COMPORTS,
IF NOT THE ASSURANCE OF EQUAL WEIGHT TO EVERY VOTER'S VOTE, AT LEAST
THE BASIC CONCEPTION THAT REPRESENTATION OUGHT TO BE PROPORTIONATE TO
POPULATION, A STANDARD BY REFERENCE TO WHICH THE REASONABLENESS OF
APPORTIONMENT PLANS MAY BE JUDGED. 

TO FIND SUCH A POLITICAL CONCEPTION LEGALLY ENFORCEABLE IN THE BROAD
AND UNSPECIFIC GUARANTEE OF EQUAL PROTECTION IS TO REWRITE THE
CONSTITUTION.  SEE LUTHER V. BORDEN, SUPRA.  CERTAINLY, "EQUAL
PROTECTION" IS NO MORE SECURE A FOUNDATION FOR JUDICIAL JUDGMENT OF THE
PERMISSIBILITY OF VARYING FORMS OF REPRESENTATIVE GOVERNMENT THAN IS
"REPUBLICAN FORM."  INDEED SINCE "EQUAL PROTECTION OF THE LAWS" CAN
ONLY MEAN AN EQUALITY OF PERSONS STANDING IN THE SAME RELATION TO
WHATEVER GOVERNMENTAL ACTION IS CHALLENGED, THE DETERMINATION WHETHER
TREATMENT IS EQUAL PRESUPPOSES A DETERMINATION CONCERNING THE NATURE OF
THE RELATIONSHIP.  THIS, WITH RESPECT TO APPORTIONMENT, MEANS AN
INQUIRY INTO THE THEORETIC BASE OF REPRESENTATION IN AN ACCEPTABLY
REPUBLICAN STATE.  FOR A COURT COULD NOT DETERMINE THE EQUAL-PROTECTION
ISSUE WITHOUT IN FACT FIRST DETERMINING THE REPUBLICAN-FORM ISSUE,
SIMPLY BECAUSE WHAT IS REASONABLE FOR EQUAL-PROTECTION PURPOSES WILL
DEPEND UPON WHAT FRAME OF GOVERNMENT, BASICALLY, IS ALLOWED.  TO
DIVORCE "EQUAL PROTECTION" FROM "REPUBLICAN FORM" IS TO TALK ABOUT HALF
A QUESTION. 

THE NOTION THAT REPRESENTATION PROPORTIONED TO THE GEOGRAPHIC SPREAD
OF POPULATION IS SO UNIVERSALLY ACCEPTED AS A NECESSARY ELEMENT OF
EQUALITY BETWEEN MAN AND MAN THAT IT MUST BE TAKEN TO BE THE STANDARD
OF A POLITICAL EQUALITY PRESERVED BY THE FOURTEENTH AMENDMENT - THAT IT
IS, IN APPELLANTS' WORDS "THE BASIC PRINCIPLE OF REPRESENTATIVE
GOVERNMENT" - IS, TO PUT IT BLUNTLY, NOT TRUE.  HOWEVER DESIRABLE AND
HOWEVER DESIRED BY SOME AMONG THE GREAT POLITICAL THINKERS AND FRAMERS
OF OUR GOVERNMENT, IT HAS NEVER BEEN GENERALLY PRACTICED, TODAY OR IN
THE PAST.  IT WAS NOT THE ENGLISH SYSTEM, IT WAS NOT THE COLONIAL
SYSTEM, IT WAS NOT THE SYSTEM CHOSEN FOR THE NATIONAL GOVERNMENT BY THE
CONSTITUTION, IT WAS NOT THE SYSTEM EXCLUSIVELY OR EVEN PREDOMINATELY
PRACTICED BY THE STATES AT THE TIME OF ADOPTION OF THE FOURTEENTH
AMENDMENT, IT IS NOT PREDOMINANTLY PRACTICED BY THE STATES TODAY. 
UNLESS JUDGES, THE JUDGED OF THIS COURT, ARE TO MAKE THEIR PRIVATE
VIEWS OF POLITICAL WISDOM THE MEASURE OF THE CONSTITUTION - VIEWS WHICH
IN ALL HONESTY CANNOT BUT GIVE THE APPEARANCE, IF NOT REFLECT THE
REALITY, OF INVOLVEMENT WITH THE BUSINESS OF PARTISAN POLITICS SO
INESCAPABLY A PART OF APPORTIONMENT CONTROVERSIES - THE FOURTEENTH
AMENDMENT, "ITSELF A HISTORICAL PRODUCT," JACKMAN V. ROSENBAUM CO., 260
U.S. 22, 31, PROVIDES NO GUIDE FOR JUDICIAL OVERSIGHT OF THE
REPRESENTATION PROBLEM. 

1.  GREAT BRITIAN.  WRITING IN 1958, PROFESSOR W.J.M. MACKENZIE APTLY
SUMMARIZED THE BRITISH HISTORY OF THE PRINCIPLE OF REPRESENTATION
PROPORTIONED TO POPULATION: 

"'EQUAL ELECTORAL DISTRICTS' FORMED PART OF THE PROGRAMME OF RADICAL
REFORM IN ENGLAND IN THE 1830S, THE ONLY PART OF THAT PROGRAMME WHICH
HAS NOT BEEN REALISED."  (FN33)  UNTIL THE LATE NINETEENTH CENTURY, THE
SOLE BASE OF REPRESENTATION (WITH CERTAIN EXCEPTIONS NOT NOW RELEVANT)
WAS THE LOCAL GEOGRAPHICAL UNIT:  EACH COUNTY OR BOROUGH RETURNED ITS
FIXED NUMBER OF MEMBERS, USUALLY TWO FOR THE ENGLISH UNITS, REGARDLESS
OF POPULATION.  (FN34)  PRIOR TO THE REFORM ACT OF 1832, THIS SYSTEM
WAS MARKED BY THE ALMOST TOTAL DISFRANCHISEMENT OF THE POPULOUS
NORTHERN INDUSTRIAL CENTERS, WHICH HAD GROWN TO SIGNIFICANT SIZE AT THE
ADVENT OF THE INDUSTRIAL REVOLUTION AND HAD NOT BEEN GRANTED BOROUGH
REPRESENTATION, AND BY THE EXISTENCE OF THE ROTTEN BOROUGH, PLAYING ITS
SUBSTANTIAL PART IN THE CROWN'S STRUGGLE FOR CONTINUED CONTROL OF THE
COMMONS.  (FN35) IN 1831, TEN SOUTHERNMOST ENGLISH COUNTIES, NUMBERING
THREE AND A QUARTER MILLION PEOPLE, HAD TWO HUNDRED AND THIRTY-FIVE
PARLIAMENTARY REPRESENTATIVES, WHILE THE SIX NORTHERNMOST COUNTIES,
WITH MORE THAN THREE AND A HALF MILLION PEOPLE, HAD SIXTY-EIGHT. 
(FN36)  IT WAS SAID THAT ONE HUNDRED AND EIGHTY PERSONS APPOINTED THREE
HUNDRED AND FIFTY MEMBERS IN THE COMMONS.  (FN37)  LESS THAN A HALF
CENTURY EARLIER, MADISON IN THE FEDERALIST HAD REMARKED THAT HALF THE
HOUSE WAS RETURNED BY LESS THAN SIX THOUSAND OF THE EIGHT MILLION
PEOPLE OF ENGLAND AND SCOTLAND.  (FN38) 

THE ACT OF 1832, THE PRODUCT OF A FIERCE PARTISAN POLITICAL STRUGGLE
AND THE OCCASION OF CHARGES OF GERRYMANDERING NOT WITHOUT FOUNDATION,
(FN39) EFFECTED ERADICATION OF ONLY THE MOST EXTREME NUMERICAL
INEQUALITIES OF THE UNREFORMED SYSTEM.  IT DID NOT ADOPT THE PRINCIPLE
OF REPRESENTATION BASED ON POPULATION, BUT MERELY DISFRANCHISED CERTAIN
AMONG THE ROTTEN BOROUGH AND ENFRANCHISED MOST OF THE URBAN CENTERS -
STILL QUITE WITHOUT REGARD TO THEIR RELATIVE NUMBERS.  (FN40)  IN THE
WAKE OF THE ACT THERE REMAINED SUBSTANTIAL ELECTORAL INEQUALITY:  THE
BOROUGHS OF CORNWALL WERE REPRESENTED SIXTEEN TIMES AS WEIGHTILY,
JUDGED BY POPULATION, AS THE COUNTY'S EASTERN DIVISION; THE AVERAGE
RATIO OF SEATS TO POPULATION IN TEN AGRICULTURAL COUNTIES WAS FOUR AND
A HALF TIMES THAT IN TEN MANUFACTURING DIVISIONS; HONITON, WITH ABOUT
THREE THOUSAND INHABITANTS, WAS EQUALLY REPRESENTED WITH LIVERPOOL,
WHICH HAD FOUR HUNDRED THOUSAND.  (FN41)  IN 1866 APPORTIONMENT BY
POPULATION BEGAN TO BE ADVOCATED GENERALLY IN THE HOUSE, BUT WAS NOT
MADE THE BASIS OF THE REDISTRIBUTION OF 1867, ALTHOUGH THE ACT OF THAT
YEAR DID APPORTION REPRESENTATION MORE EVENLY, GAUGED BY THE POPULATION
STANDARDS.  (FN42)  POPULATION SHIFTS INCREASED THE SURVIVING
INEQUALITIES; BY 1884 THE REPRESENTATION RATIO IN MANY SMALL BOROUGHS
WAS MORE THAN TWENTY-TWO TIMES THAT OF BIRMINGHAM OR MANCHESTER, FORTY
TO-ONE DISPARITIES COULD BE FOUND ELSEWHERE, AND, IN SUM, IN THE 1870'S
AND 1880'S, A FOURTH OF THE ELECTORATE RETURNED TWO-THIRDS OF THE
MEMBERS OF THE HOUSE.  (FN43) 

THE FIRST SYSTEMATIC ENGLISH ATTEMPT TO DISTRIBUTE SEATS BY
POPULATION WAS THE REDISTRIBUTION ACT OF 1885.  (FN44)  THE STATUTE
STILL LEFT RATIOS OF INEQUALITY OF AS MUCH AS SEVEN TO ONE, (FN45)
WHICH HAD INCREASED TO FIFTEEN TO ONE BY 1912.  (FN46)  IN 1918
PARLIAMENT AGAIN RESPONDED TO "SHOCKINGLY BAD" CONDITIONS OF
INEQUALITY, (FN47) AND TO PARTISAN POLITICAL INSPIRATION, (FN48) BY
REDISTRIBUTION.  (FN49)  IN 1944, REDISTRIBUTION WAS PUT ON A PERIODIC
FOOTING BY THE HOUSE OF COMMONS (REDISTRIBUTION OF SEATS) ACT OF THAT
YEAR, (FN50) WHICH COMMITTED A CONTINUING PRIMARY RESPONSIBILITY FOR
REAPPORTIONING THE COMMONS TO ADMINISTRATIVE AGENCIES (BOUNDARY
COMMISSIONS FOR ENGLAND, SCOTLAND, WALES AND NORTHERN IRELAND,
RESPECTIVELY).  (FN51)  THE COMMISSIONS, HAVING REGARD TO CERTAIN RULES
PRESCRIBED FOR THEIR GUIDANCE, ARE TO PREPARE AT DESIGNATED INTERVALS
REPORTS FOR THE HOME SECRETARY'S SUBMISSION TO PARLIAMENT, ALONG WITH
THE DRAFT OF AN ORDER IN COUNCIL TO GIVE EFFECT TO THE COMMISSIONS'
RECOMMENDATIONS.  THE DISTRICTING RULES ADOPT THE BASIC PRINCIPLE OF
REPRESENTATION BY POPULATION, ALTHOUGH THE PRINCIPLE IS SIGNIFICANTLY
MODIFIED BY DIRECTIONS TO RESPECT LOCAL GEOGRAPHIC BOUNDARIES AS FAR AS
PRACTICABLE, AND BY DISCRETION TO TAKE ACCOUNT OF SPECIAL GEOGRAPHICAL
CONDITIONS, INCLUDING THE SIZE, SHAPE AND ACCESSIBILITY OF
CONSTITUENCIES.  UNDER THE ORIGINAL 1944 ACT, THE RULES PROVIDED THAT
(SUBJECT TO THE EXERCISE OF THE DISCRETION RESPECTING SPECIAL
GEOGRAPHICAL CONDITIONS AND TO REGARD FOR THE TOTAL SIZE OF THE HOUSE
OF COMMONS AS PRESCRIBED BY THE ACT) SO FAR AS PRACTICABLE, THE SINGLE
MEMBER DISTRICTS SHOULD NOT DEVIATE MORE THAN TWENTY-FIVE PERCENT FROM
THE ELECTORAL QUOTA (POPULATION DIVIDED BY NUMBER OF CONSTITUENCIES). 
HOWEVER, APPARENTLY AT THE RECOMMENDATION OF THE BOUNDARY COMMISSION
FOR ENGLAND, THE TWENTY-FIVE PRECENT STANDARD WAS ELIMINATED AS TOO
RESTRICTIVE IN 1947, AND REPLACED BY THE FLEXIBLE PROVISION THAT
CONSTITUENCIES ARE TO BE AS NEAR THE ELECTORAL QUOTA AS PRACTICABLE, A
RULE WHICH IS EXPRESSLY SUBORDINATED BOTH TO THE CONSIDERATION OF
SPECIAL GEOGRAPHIC CONDITIONS AND TO THAT OF PRESERVING LOCAL
BOUNDARIES.  (FN52)  FREE OF THE TWENTY-FIVE PERCENT RULE, THE
COMMISSIONS DREW UP PLANS OF DISTRIBUTION IN WHICH INEQUALITIES AMONG
THE DISTRICTS RUN, IN ORDINARY CASES, AS HIGH AS TWO TO ONE AND, IN THE
CASE OF A FEW EXTRAORDINARY CONSTITUENCIES, THREE TO ONE.  (FN53) THE
ACTION OF THE BOUNDARY COMMISSION FOR ENGLAND WAS TWICE CHALLENGED IN
THE COURTS IN 1954 - THE CLAIM BEING THAT THE COMMISSION HAD VIOLATED
STATUTORY RULES PRESCRIBING THE STANDARDS FOR ITS JUDGMENT - AND IN
BOTH CASES THE JUDGES DECLINED TO INTERVENE.  IN HAMMERSMITH BOROUGH
COUNCIL V. BOUNDARY COMMISSION FOR ENGLAND, (FN54) HARMAN, J., WAS OF
OPINION THAT THE NATURE OF THE CONTROVERSY AND THE SCHEME OF THE ACTS
MADE THE MATTER INAPPROPRIATE FOR JUDICIAL INTERFERENCE, AND IN HARPER
V. HOME SECRETARY, (FN55) THE COURT OF APPEAL, PER EVERSHED, M.R.,
QUOTING HARMAN, J., WITH APPROVAL, ADVERTING TO THE WIDE RANGE OF
DISCRETION ENTRUSTED TO THE COMMISSION UNDER THE ACTS, AND REMARKING
THE DELICATE CHARACTER OF THE PARLIAMENTARY ISSUES IN WHICH IT WAS
SOUGHT TO ENGAGE THE COURT, REACHED THE SAME CONCLUSION.  (FN56) 

THE HOUSE OF COMMONS (REDISTRIBUTION OF SEATS) ACT, 1958, (FN57) MADE
TWO FURTHER AMENDMENTS TO THE LAW.  RESPONSIVE TO THE RECOMMENDATION OF
THE BOUNDARY COMMISSION FOR ENGLAND, (FN58) THE INTERVAL PERMITTED
BETWEEN COMMISSION REPORTS WAS MORE THAN DOUBLED, TO A NEW MAXIMUM OF
FIFTEEN YEARS.  (FN59)  AND AT THE SUGGESTION OF THE SAME COMMISSION
THAT "IT WOULD EASE THE FUTURE LABOURS OF THE COMMISSION AND REMOVE
MUCH LOCAL IRRITATION IF RULE 5 (REQUIRING THAT THE ELECTORATE OF EACH
CONSTITUENCY BE AS NEAR THE ELECTORAL QUOTA AS PRACTICABLE) WERE TO BE
SO AMENDED AS TO ALLOW US TO MAKE RECOMMENDATIONS PRESERVING THE STATUS
QUO IN ANY AREA WHERE SUCH A COURSE APPEARED TO BE DESIRABLE AND NOT
INCONSISTENT WITH THE BROAD INTENTION OF THE RULES," (FN60) THE
COMMISSIONS WERE DIRECTED TO CONSIDER THE INCONVENIENCES ATTENDANT UPON
THE ALTERATION OF CONSTITUENCIES, AND THE LOCAL TIES WHICH SUCH
ALTERATION MIGHT BREAK.  THE HOME SECRETARY'S VIEW OF THIS AMENDMENT
WAS THAT IT WORKED TO ERECT "A PRESUMPTION AGAINST MAKING CHANGES
UNLESS THERE IS A VERY STRONG CASE FOR THEM."  (FN61) 

2.  THE COLONIES AND THE UNION.  FOR THE GUIDING POLITICAL THEORISTS
OF THE REVOLUTIONARY GENERATION, THE ENGLISH SYSTEM OF REPRESENTATION,
IN ITS MOST SALIENT ASPECTS OF NUMERICAL INEQUALITY, WAS A MODEL TO BE
AVOIDED, NOT FOLLOWED.  (FN62)  NEVERTHELESS, THE BASIC ENGLISH
PRINCIPLE OF APPORTIONING REPRESENTATIVES AMONG THE LOCAL GOVERNMENTAL
ENTITIES, TOWNS OR COUNTIES, RATHER THAN AMONG UNITS OF APPROXIMATELY
EQUAL POPULATION, HAD EARLY TAKEN ROOT IN THE COLONIES.  (FN63)  IN
SOME, AS IN MASSACHUSETTS AND RHODE ISLAND, NUMBERS OF ELECTORS WERE
TAKEN INTO ACCOUNT, IN A ROUGH FASHION, BY ALLOTTING INCREASING FIXED
QUOTAS OF REPRESENTATIVES TO SEVERAL TOWNS OR CLASSES OF TOWNS
GRADUATED BY POPULATION, BUT IN MOST OF THE COLONIES DELEGATES WERE
ALLOWED TO THE LOCAL UNITS WITHOUT RESPECT TO NUMBERS.  (FN64)  THIS
RESULTED IN GROSSLY UNEQUAL ELECTORAL UNITS.  (FN65)  THE
REPRESENTATION RATIO IN ONE NORTH CAROLINA COUNTY WAS MORE THAN EIGHT
TIMES THAT IN ANOTHER.  (FN66)  MOREOVER, AMERICAN ROTTEN BOROUGHS HAD
APPEARED, (FN67) AND APPORTIONMENT WAS MADE AN INSTRUMENT FIRST IN THE
POLITICAL STRUGGLES BETWEEN THE KING OR THE ROYAL GOVERNORS AND THE
COLONIAL LEGISLATURES, (FN68) AND, LATER, BETWEEN THE OLDER TIDEWATER
REGIONS IN THE COLONIES AND THE GROWING INTERIOR.  (FN69)  MADISON IN
THE PHILADELPHIA CONVENTION ADVERTED TO THE "INEQUALITY OF THE
REPRESENTATION IN THE LEGISLATURES OF PARTICULAR STATES,  ...  " (FN70)
ARGUING THAT IT WAS NECESSARY TO CONFER ON CONGRESS THE POWER
ULTIMATELY TO REGULATE THE TIMES, PLACES AND MANNER OF SELECTING
REPRESENTATIVES, (FN71) IN ORDER TO FORESTALL THE OVERREPRESENTED
COUNTIES' SECURING THEMSELVES A SIMILAR OVERREPRESENTATION IN THE
NATIONAL COUNCILS.  THE EXAMPLE OF SOUTH CAROLINA, WHERE CHARLESTON'S
OVERREPRESENTATION WAS A CONTINUING BONE OF CONTENTION BETWEEN THE
TIDEWATER AND THE BACK COUNTY, WAS CITED BY MADISON IN THE VIRGINIA
CONVENTION AND BY KING IN THE MASSACHUSETTS CONVENTION, IN SUPPORT OF
THE SAME POWER, AND KING ALSO SPOKE OF THE EXTREME NUMERICAL INEQUALITY
ARISING FROM CONNECTICUT'S TOWN-REPRESENTATION SYSTEM.  (FN72) 

SUCH INEQUALITIES SURVIVED THE CONSTITUTIONAL PERIOD.  THE UNITED
STATES CONSTITUTION ITSELF DID NOT LARGELY ADOPT THE PRINCIPLE OF
NUMBERS.  APPORTIONMENT OF THE NATIONAL LEGISLATURE AMONG THE STATES
WAS ONE OF THE MOST DIFFICULT PROBLEMS FOR THE CONVENTION; (FN73) ITS
SOLUTION - INVOLVING STATE REPRESENTATION IN THE SENATE (FN74) AND THE
THREE-FIFTHS COMPROMISE IN THE HOUSE (FN75) - LEFT NEITHER CHAMBER
APPORTIONED PROPORTIONATELY TO POPULATION.  WITHIN THE STATES,
ELECTORAL POWER CONTINUED TO BE ALLOTTED TO FAVOR THE TIDEWATER. 
(FN76)  JEFFERSON, IN HIS NOTES ON VIRGINIA, RECORDED THE "VERY
UNEQUAL" REPRESENTATION THERE:  INDIVIDUAL COUNTIES DIFFERING IN
POPULATION BY A RATIO OF MORE THAN SEVENTEEN TO ONE ELECTED THE SAME
NUMBER OF REPRESENTATIVES, AND THOSE NINETEEN THOUSAND OF VIRGINIA'S
FIFTY THOUSAND MEN WHO LIVED BETWEEN THE FALLS OF THE RIVERS AND THE
SEACOAST RETURNED HALF THE STATE'S SENATORS AND ALMOST HALF ITS
DELEGATES.  (FN77)  IN SOUTH CAROLINA IN 1790, THE THREE LOWER
DISTRICTS, WITH A WHITE POPULATION OF LESS THAN TWENTY-NINE THOUSAND
ELECTED TWENTY SENATORS AND SEVENTY ASSEMBLY MEMBERS; WHILE IN THE
UPLANDS MORE THAN ONE HUNDRED AND ELEVEN THOUSAND WHITE PERSONS ELECTED
SEVENTEEN SENATORS AND FIFTY-FOUR ASSEMBLYMEN.  (FN78) 

IN THE EARLY NINETEENTH CENTURY, THE DEMANDS OF THE INTERIOR BECAME
MORE INSISTENT.  THE APPORTIONMENT QUARREL IN VIRGINIA WAS A MAJOR
FACTOR IN PRECIPITATING THE CALLING OF A CONSTITUTIONAL CONVENTION IN
1829.  BITTER ANIMOSITIES RACKED THE CONVENTION, THREATENING THE STATE
WITH DISUNION.  AT LAST A COMPROMISE WHICH GAVE THE THREE HUNDRED AND
TWENTY THOUSAND PEOPLE OF THE WEST THIRTEEN SENATORS, AS AGAINST THE
NINETEEN SENATORS RETURNED BY THE THREE HUNDRED SIXTY-THREE THOUSAND
PEOPLE OF THE EAST, COMMANDED AGREEMENT.  IT WAS ADOPTED AT THE POLLS
BUT LEFT THE WESTERN COUNTIES SO DISSATISFIED THAT THERE WERE THREATS
OF REVOLT AND REALIGNMENT WITH THE STATE OF MARYLAND.  (FN79) 

MARYLAND, HOWEVER, HAD HER OWN NUMERICAL DISPROPORTIONS.  IN 1820,
ONE REPRESENTATIVE VOTE IN CALVERT COUNTY WAS WORTH FIVE IN FREDERICK
COUNTY, AND ALMOST TWO HUNDRED THOUSAND PEOPLE WERE REPRESENTED BY
EIGHTEEN MEMBERS, WHILE FIFTY THOUSAND OTHERS ELECTED TWENTY.  (FN80)
THIS WAS THE RESULT OF THE COUNTY-REPRESENTATION SYSTEM OF ALLOTMENT. 
AND, EXCEPT FOR MASSACHUSETTS WHICH, AFTER A LONG STRUGGLE, DID ADOPT
REPRESENTATION BY POPULATION AT THE MID-CENTURY, A SIMILAR TOWN
REPRESENTATION PRINCIPLE CONTINUED TO PREVAIL IN VARIOUS FORMS
THROUGHOUT NEW ENGLAND, WITH ALL ITS ATTENDANT, OFTEN GROSS
INEQUALITIES.  (FN81) 

3.  THE STATES AT THE TIME OF RATIFICATION OF THE FOURTEENTH
AMENDMENT, AND THOSE LATER ADMITTED.  THE SEVERAL STATE CONVENTIONS
THROUGHOUT THE FIRST HALF OF THE NINETEENTH CENTURY WERE THE SCENES OF
FIERCE SECTIONAL AND PARTY STRIFES RESPECTING THE GEOGRAPHIC ALLOCATION
OF REPRESENTATION.  (FN82) THEIR PRODUCT WAS A WIDE VARIETY OF
APPORTIONMENT METHODS WHICH RECOGNIZED THE ELEMENT OF POPULATION IN
DIFFERING WAYS AND DEGREES.  PARTICULARLY PERTINENT TO APPRAISAL OF THE
CONTENTION THAT THE FOURTEENTH AMENDMENT EMBODIED A STANDARD LIMITING
THE FREEDOM OF THE STATES WITH REGARD TO THE PRINCIPLES AND BASES OF
LOCAL LEGISLATIVE APPORTIONMENT IS AN EXAMINATION OF THE APPORTIONMENT
PROVISIONS OF THE THIRTY-THREE STATES WHICH RATIFIED THE AMENDMENT
BETWEEN 1866 AND 1870, AT THEIR RESPECTIVE TIMES OF RATIFICATION. 
THESE MAY BE CONSIDERED IN TWO GROUPS:  (A) THE RATIFYING STATES OTHER
THAN THE TEN SOUTHERN STATES WHOSE CONSTITUTIONS, AT THE TIME OF
RATIFICATION OR SHORTLY THEREAFTER, WERE THE WORK OF THE RECONSTRUCTION
ACT CONVENTIONS; (FN83) AND (B) THE TEN RECONSTRUCTION-ACT STATES.  ALL
THIRTY-THREE ARE SIGNIFICANT, BECAUSE THEY DEMONSTRATE HOW UNFOUNDED IS
THE ASSEMPTION THAT THE RATIFYING STATES COULD HAVE AGREED ON A
STANDARD APPORTIONMENT THEORY OR PRACTICE, AND HOW BASELESS THE
SUGGESTION THAT BY VOTING FOR THE EQUAL PROTECTION CLAUSE THEY SOUGHT
TO ESTABLISH A TEST MOLD FOR APPORTIONMENT WHICH - IF APPELLANTS'
ARGUMENT IS SOUND - STRUCK DOWN SUB SILENTIO NOT A FEW OF THEIR OWN
STATE CONSTITUTIONAL PROVISIONS.  BUT THE CONSTITUTIONS OF THE TEN
RECONSTRUCTION-ACT STATES HAVE AN ADDED IMPORTANCE, FOR IT IS SCARCELY
TO BE THOUGHT THAT THE CONGRESS WHICH WAS SO SOLICITOUS FOR THE
ADOPTION OF THE FOURTEENTH AMENDMENT AS TO MAKE THE READMISSION OF THE
LATE REBEL STATES TO CONGRESS TURN ON THEIR RESPECTIVE RATIFICATIONS OF
IT, WOULD HAVE APPROVED CONSTITUTIONS WHICH - AGAIN, UNDER APPELLANTS'
THEORY - CONTEMPORANEOUSLY OFFENDED THE AMENDMENT.    A. OF THE TWENTY
THREE RATIFYING STATES OF THE FIRST GROUP, SEVEN OR EIGHT HAD
CONSTITUTIONS WHICH DEMANDED OR ALLOWED APPORTIONMENT OF BOTH HOUSES ON
THE BASIS OF POPULATION, (FN84) UNQUALIFIEDLY OR WITH ONLY
QUALIFICATIONS RESPECTING THE PRESERVATION OF LOCAL BOUNDARIES.  (FN85)
THREE MORE APPORTIONED ON WHAT WAS ESSENTIALLY A POPULATION BASE, BUT
PROVIDED THAT IN ONE HOUSE COUNTIES HAVING A SPECIFIED FRACTION OF A
RATIO - A MOIETY OR TWO-THIRDS - SHOULD HAVE A REPRESENTATIVE.  (FN86)
SINCE EACH OF THESE THREE STATES LIMITED THE SIZE OF THEIR CHAMBERS,
THE FRACTIONAL RULE COULD OPERATE - AND, AT LEAST IN MICHIGAN, HAS IN
FACT OPERATED (FN87) - TO PRODUCE SUBSTANTIAL NUMERICAL INEQUALITIES IN
FAVOR OF THE SPARSELY POPULATED COUNTIES.  (FN88)  IOWA FAVORED HER
SMALL COUNTIES BY THE RULE THAT NO MORE THAN FOUR COUNTIES MIGHT BE
COMBINED IN A REPRESENTATIVE DISTRICT, (FN89) AND NEW YORK AND KANSAS
COMPROMISED POPULATION AND COUNTY-REPRESENTATION PRINCIPLES BY ASSURING
EVERY COUNTY, REGARDLESS OF THE NUMBER OF ITS INHABITANTS, AT LEAST ONE
SEAT IN THEIR RESPECTIVE HOUSES.  (FN90) 

OHIO AND MAINE RECOGNIZED THE FACTOR OF NUMBERS BY A DIFFERENT
DEVICE.  THE FORMER GAVE A HOUSE REPRESENTATIVE TO EACH COUNTY HAVING
HALF A RATIO, TWO REPRESENTATIVES FOR A RATIO AND THREE-QUARTERS, THREE
REPRESENTATIVES FOR THREE RATIOS, AND A SINGLE ADDITIONAL
REPRESENTATIVE FOR EACH ADDITIONAL RATIO.  (FN91)  THE LATTER, AFTER
APPORTIONING AMONG COUNTIES ON A POPULATION BASE, GAVE EACH TOWN OF
FIFTEEN HUNDRED INHABITANTS ONE REPRESENTATIVE, EACH TOWN OF THREE
THOUSAND, SEVEN HUNDRED AND FIFTY INHABITANTS TWO REPRESENTATIVES, AND
SO ON IN INCREASING INTERVALS TO TWENTY-SIX THOUSAND, TWO HUNDRED AND
FIFTY INHABITANTS - TOWNS OF THAT SIZE OR LARGER RECEIVING THE MAXIMUM
PERMITTED NUMBER OF REPRESENTATIVES:  SEVEN.  (FN92)  THE DEPARTURE
FROM NUMERICAL EQUALITY UNDER THESE SYSTEMS IS APPARENT:  IN MAINE,
ASSUMING THE INCIDENCE OF TOWNS IN ALL CATEGORIES, REPRESENTATIVE
RATIOS WOULD DIFFER BY FACTORS OF TWO AND A HALF TO ONE, AT A MINIMUM. 
SIMILARLY, MISSOURI GAVE EACH OF ITS COUNTIES, HOWEVER SMALL, ONE
REPRESENTATIVE, TWO REPRESENTATIVES FOR THREE RATIOS, THREE
REPRESENTATIVES FOR SIX RATIOS, AND ONE ADDITIONAL REPRESENTATIVE FOR
EACH THREE RATIOS ABOVE SIX.  (FN93)  NEW HAMPSHIRE ALLOTTED A
REPRESENTATIVE TO EACH TOWN OF ONE HUNDRED AND FIFTY RATABLE MALE POLLS
OF VOTING AGE AND ONE MORE REPRESENTATIVE FOR EACH INCREMENT OF THREE
HUNDRED ABOVE THAT FIGURE; (FN94) ITS SENATE WAS NOT APPORTIONED BY
POPULATION BUT AMONG DISTRICTS BASED ON THE PROPORTION OF DIRECT TAXES
PAID.  (FN95)  IN PENNSYLVANIA, THE BASIS OF APPORTIONMENT IN BOTH
HOUSES WAS TAXABLE INHABITANTS; AND IN THE HOUSE EVERY COUNTY OF AT
LEAST THIRTY-FIVE HUNDRED TAXABLES HAD A REPRESENTATIVE, NOR COULD MORE
THAN THREE COUNTIES BE JOINED IN FORMING A REPRESENTATIVE DISTRICT;
WHILE IN THE SENATE NO CITY OR COUNTY COULD HAVE MORE THAN FOUR OF THE
STATE'S TWENTY-FIVE TO THIRTY-THREE SENATORS.  (FN96) 

FINALLY, FOUR STATES APPORTIONED AT LEAST ONE HOUSE WITH NO REGARD
WHATEVER TO POPULATION.  IN CONNECTICUT (FN97) AND VERMONT (FN98)
REPRESENTATION IN THE HOUSE WAS ON A TOWN BASIS; RHODE ISLAND GAVE ONE
SENATOR TO EACH OF ITS TOWNS OR CITIES, (FN99) AND NEW JERSEY, ONE TO
EACH OF ITS COUNTIES.   (FN100)  NOR, IN ANY OF THESE STATES, WAS THE
OTHER HOUSE APPORTIONED ON A STRICT PRINCIPLE OF EQUAL NUMBERS:
CONNECTICUT GAVE EACH OF ITS COUNTIES A MINIMUM OF TWO SENATORS (FN101)
AND VERMONT, ONE; (FN102) NEW JERSEY ASSURED EACH COUNTY A
REPRESENTATIVE; (FN103) AND IN RHODE ISLAND, WHICH GAVE AT LEAST ONE
REPRESENTATIVE TO EACH TOWN OR CITY, NO TOWN OR CITY COULD HAVE MORE
THAN ONE-SIXTH OF THE TOTAL NUMBER IN THE HOUSE.  (FN104) 

B. AMONG THE TEN LATE CONFEDERATE STATES AFFECTED BY THE
RECONSTRUCTION ACTS, IN ONLY FOUR DID IT APPEAR THAT APPORTIONMENT OF
BOTH STATE LEGISLATIVE HOUSES WOULD OR MIGHT BE BASED STRICTLY ON
POPULATION.  (FN105)  IN NORTH CAROLINA, (FN106) SOUTH CAROLINA,
(FN107) LOUISIANA, (FN108) AND ALABAMA, (FN109) EACH COUNTY (IN THE
CASE OF LOUISIANA, EACH PARISH) WAS ASSURED AT LEAST ONE SEAT IN THE
LOWER HOUSE IRRESPECTIVE OF NUMBERS - A DISTRIBUTION WHICH EXHAUSTED,
RESPECTIVELY, ON THE BASIS OF THE NUMBER OF THEN-EXISTING COUNTIES,
THREE-QUARTERS, ONE-QUARTER, TWO FIFTHS AND THREE-FIFTHS OF THE MAXIMUM
POSSIBLE NUMBER OF REPRESENTATIVES, BEFORE A SINGLE SEAT WAS AVAILABLE
FOR ASSIGNMENT ON A POPULATION BASIS; AND IN SOUTH CAROLINA, MOREOVER,
THE SENATE WAS COMPOSED OF ONE MEMBER ELECTED FROM EACH COUNTY, EXCEPT
THAT CHARLESTON SENT TWO.  (FN110)  IN FLORIDA'S HOUSE, EACH COUNTY HAD
ONE SEAT GUARANTEED AND AN ADDITIONAL SEAT FOR EVERY THOUSAND
REGISTERED VOTERS UP TO A MAXIMUM OF FOUR REPRESENTATIVES; (FN111)
WHILE GEORGIA, WHOSE SENATE SEATS WERE DISTRIBUTED AMONG FORTY-FOUR
SINGLE-MEMBER DISTRICTS EACH COMPOSED OF THREE CONTIGUOUS COUNTIES,
(FN112) ASSIGNED REPRESENTATION IN ITS HOUSE AS FOLLOWS:  THREE SEATS
TO EACH OF THE SIX MOST POPULOUS COUNTIES, TWO TO EACH OF THE THIRTY
ONE NEXT MOST POPULOUS, ONE TO EACH OF THE REMAINING NINETY-FIVE. 
(FN113)  AS MIGHT BE EXPECTED, THE ONE-REPRESENTATIVE-PER-COUNTY
MINIMUM PATTERN HAS PROVED INCOMPATIBLE WITH NUMERICAL EQUALITY,
(FN114) AND GEORGIA'S COUNTY-CLUSTERING SYSTEM HAS PRODUCED
REPRESENTATIVE-RATIO DISPARITIES, BETWEEN THE LARGEST AND SMALLEST
COUNTIES, OF MORE THAN SIXTY TO ONE.  (FN115) 

C. THE CONSTITUTIONS (FN116) OF THE THIRTEEN STATES WHICH CONGRESS
ADMITTED TO THE UNION AFTER THE RATIFICATION OF THE FOURTEENTH
AMENDMENT SHOWED A SIMILAR PATTERN.  SIX OF THEM REQUIRED OR PERMITTED
APPORTIONMENT OF BOTH HOUSES BY POPULATION, SUBJECT ONLY TO
QUALIFICATIONS CONCERNING LOCAL BOUNDARIES.  (FN117)  WYOMING,
APPORTIONING BY POPULATION, GUARANTEED TO EACH OF ITS COUNTIES AT LEAST
ONE SEAT IN EACH HOUSE, (FN118) AND IDAHO, WHICH PRESCRIBED (AFTER THE
FIRST LEGISLATIVE SESSION) THAT APPORTIONMENT SHOULD BE "AS MAY BE
PROVIDED BY LAW," GAVE EACH COUNTY AT LEAST ONE REPRESENTATIVE. 
(FN119)  IN OKLAHOMA, HOUSE MEMBERS WERE APPORTIONED AMONG COUNTIES SO
AS TO GIVE ONE SEAT FOR HALF A RATIO, TWO FOR A RATIO AND THREE
QUARTERS, AND ONE FOR EACH ADDITIONAL RATIO UP TO A MAXIMUM OF SEVEN
REPRESENTATIVES PER COUNTY.  (FN120)  MONTANA REQUIRED REAPPORTIONMENT
OF ITS HOUSE ON THE BASIS OF PERIODIC ENUMERATIONS ACCORDING TO RATIOS
TO BE FIXED BY LAW (FN121) BUT ITS COUNTIES WERE REPRESENTED AS
COUNTIES IN THE SENATE, EACH COUNTY HAVING ONE SENATOR.  (FN122) ALASKA
(FN123) AND HAWAII (FN124) EACH APPORTIONED A NUMBER OF SENATORS AMONG
CONSTITUTIONALLY FIXED DISTRICTS; THEIR RESPECTIVE HOUSES WERE TO BE
PERIODICALLY REAPPORTIONED BY POPULATION, SUBJECT TO A MOIETY RULE IN
ALASKA (FN125) AND TO HAWAII'S GUARANTEE OF ONE REPRESENTATIVE TO EACH
OF FOUR CONSTITUTIONALLY DESIGNATED AREAS.  (FN126)  THE ARIZONA
CONSTITUTION ASSIGNED REPRESENTATION TO EACH COUNTY IN EACH HOUSE,
GIVING ONE OR TWO SENATORS AND FROM ONE TO SEVEN REPRESENTATIVES TO
EACH, AND MAKING NO PROVISION FOR REAPPORTIONMENT.  (FN127) 

4.  CONTEMPORARY APPORTIONMENT.  DETAILED RECENT STUDIES ARE
AVAILABLE TO DESCRIBE THE PRESENT-DAY CONSTITUTIONAL AND STATUTORY
STATUS OF APPORTIONMENT IN THE FIFTY STATES.  (FN128)  THEY DEMONSTRATE
A DECIDED TWENTIETH-CENTURY TREND AWAY FROM POPULATION AS THE EXCLUSIVE
BASE OF REPRESENTATION.  TODAY, ONLY A DOZEN STATE CONSTITUTIONS
PROVIDE FOR PERIODIC LEGISLATIVE REAPPORTIONMENT OF BOTH HOUSES BY A
SUBSTANTIALLY UNQUALIFIED APPLICATION OF THE POPULATION STANDARD,
(FN129) AND ONLY ABOUT A DOZEN MORE PRESCRIBE SUCH REAPPORTIONMENT FOR
EVEN A SINGLE CHAMBER.  "SPECIFIC PROVISION FOR COUNTY REPRESENTATION
IN AT LEAST ONE HOUSE OF THE STATE LEGISLATURE HAS BEEN INCREASINGLY
ADOPTED SINCE THE END OF THE 19TH CENTURY  ...  ."  (FN130)  MORE THAN
TWENTY STATES NOW GUARANTEE EACH COUNTY AT LEAST ONE SEAT IN ONE OF
THEIR HOUSES REGARDLESS OF POPULATION, AND IN NINE OTHERS COUNTY OR
TOWN UNITS ARE GIVEN EQUAL REPRESENTATION IN ONE LEGISLATIVE BRANCH,
WHATEVER THE NUMBER OF EACH UNIT'S INHABITANTS.  OF COURSE, NUMERICALLY
CONSIDERED, "THESE PROVISIONS INVARIABLY RESULT IN OVER-REPRESENTATION
OF THE LEAST POPULATED AREAS  ...  ."  (FN131)  AND IN AN EFFORT TO
CURB THE POLITICAL DOMINANCE OF METROPOLITAN REGIONS, AT LEAST TEN
STATES NOW LIMIT THE MAXIMUM ENTITLEMENT OF ANY SINGLE COUNTY (OR, IN
SOME CASES, CITY) IN ONE LEGISLATIVE HOUSE - ANOTHER SOURCE OF
SUBSTANTIAL NUMERICAL DISPROPORTION.  (FN132) 

MOREOVER, IT IS COMMON KNOWLEDGE THAT THE LEGISLATURES HAVE NOT KEPT
REAPPORTIONMENT UP TO DATE, EVEN WHERE STATE CONSTITUTIONS IN TERMS
REQUIRE IT.  (FN133)  IN PARTICULAR, THE PATTERN OF ACCORDING GREATER
PER CAPITA REPRESENTATION TO RURAL, RELATIVELY SPARSELY POPULATED AREAS
- THE SAME PATTERN WHICH FINDS EXPRESSION IN VARIOUS STATE
CONSTITUTIONAL PROVISIONS, (FN134) AND WHICH HAS BEEN GIVEN EFFECT IN
ENGLAND AND ELSEWHERE (FN135) - HAS, IN SOME OF THE STATES, BEEN MADE
THE LAW BY LEGISLATIVE INACTION IN THE FACE OF POPULATION SHIFTS. 
(FN136)  THROUGHOUT THE COUNTRY, URBAN AND SUBURBAN AREAS TEND TO BE
GIVEN HIGHER REPRESENTATION RATIOS THAN DO RURAL AREAS.  (FN137) 

THE STARK FACT IS THAT IF AMONG THE NUMEROUS WIDELY VARYING
PRINCIPLES AND PRACTICES THAT CONTROL STATE LEGISLATIVE APPORTIONMENT
TODAY THERE IS ANY GENERALLY PREVAILING FEATURE, THAT FEATURE IS
GEOGRAPHIC INEQUALITY IN RELATION TO THE POPULATION STANDARD.  (FN138)
EXAMPLES COULD BE ENDLESSLY MULTIPLIED.  IN NEW JERSEY, COUNTIES OF
THIRTY-FIVE THOUSAND AND OF MORE THAN NINE HUNDRED AND FIVE THOUSAND
INHABITANTS RESPECTIVELY EACH HAVE A SINGLE SENATOR.  (FN139)
REPRESENTATIVE DISTRICTS IN MINNESOTA RANGE FROM 7,290 INHABITANTS TO
107,246 INHABITANTS.  (FN140) RATIOS OF SENATORIAL REPRESENTATION IN
CALIFORNIA VARY AS MUCH AS TWO HUNDRED AND NINETY-SEVEN TO ONE. 
(FN141)  IN OKLAHOMA, THE RANGE IS TEN TO ONE FOR HOUSE CONSTITUENCIES
AND ROUGHLY SIXTEEN TO ONE FOR SENATE CONSTITUENCIES.  (FN142)
COLEBROOK, CONNECTICUT - POPULATION 592 - ELECTS TWO HOUSE
REPRESENTATIVES; HARTFORD - POPULATION 177,397 - ALSO ELECTS TWO. 
(FN143)  THE FIRST, THIRD AND FIFTH OF THESE EXAMPLES ARE THE PRODUCTS
OF CONSTITUTIONAL PROVISIONS WHICH SUBORDINATE POPULATION TO REGIONAL
CONSIDERATIONS IN APPORTIONMENT; THE SECOND IS THE RESULT OF
LEGISLATIVE INACTION; THE FOURTH DERIVES FROM BOTH CONSTITUTIONAL AND
LEGISLATIVE SOURCES.  A SURVEY MADE IN 1955, IN SUM, REVEALS THAT LESS
THAN THIRTY PERCENT OF THE POPULATION INHABIT DISTRICTS SUFFICIENT TO
ELECT A HOUSE MAJORITY IN THIRTEEN STATES AND A SENATE MAJORITY IN
NINETEEN STATES.  (FN144)  THESE FIGURES SHOW MORE THAN INDIVIDUAL
VARIATIONS FROM A GENERALLY ACCEPTED STANDARD OF ELECTORAL EQUALITY. 
THEY SHOW THAT THERE IS NOT - AS THERE HAS NEVER BEEN - A STANDARD BY
WHICH THE PLACE OF EQUALITY AS A FACTOR IN APPORTIONMENT CAN BE
MEASURED. 

MANIFESTLY, THE EQUAL PROTECTION CLAUSE SUPPLIES NO CLEARER GUIDE FOR
JUDICIAL EXAMINATION OF APPORTIONMENT METHODS THAN WOULD THE GUARANTEE
CLAUSE ITSELF.  APPORTIONMENT, BY ITS CHARACTER, IS A SUBJECT OF
EXTRAORDINARY COMPLEXITY, INVOLVING - EVEN AFTER THE FUNDAMENTAL
THEORETICAL ISSUES CONCERNING WHAT IS TO BE REPRESENTED IN A
REPRESENTATIVE LEGISLATURE HAVE BEEN FOUGHT OUT OR COMPROMISED -
CONSIDERATIONS OF GEOGRAPHY, DEMOGRAPHY, ELECTORAL CONVENIENCE,
ECONOMIC AND SOCIAL COHESIONS OR DIVERGENCIES AMONG PARTICULAR LOCAL
GROUPS, COMMUNICATIONS, THE PRACTICAL EFFECTS OF POLITICAL INSTITUTIONS
LIKE THE LOBBY AND THE CITY MACHINE, ANCIENT TRADITIONS AND TIES OF
SETTLED USAGE, RESPECT FOR PROVEN INCUMBENTS OF LONG EXPERIENCE AND
SENIOR STATUS, MATHEMATICAL MECHANICS, CENSUSES COMPILING RELEVANT
DATA, AND A HOST OF OTHERS.  (FN145)  LEGISLATIVE RESPONSES THROUGHOUT
THE COUNTRY TO THE REAPPORTIONMENT DEMANDS OF THE 1960 CENSUS HAVE
GLARINGLY CONFIRMED THAT THESE ARE NOT FACTORS THAT LEND THEMSELVES TO
EVALUATIONS OF A NATURE THAT ARE THE STAPLE OF JUDICIAL DETERMINATIONS
OR FOR WHICH JUDGES ARE EQUIPPED TO ADJUDICATE BY LEGAL TRAINING OR
EXPERIENCE OR NATIVE WIT.  AND THIS IS THE MORE SO TRUE BECAUSE IN
EVERY STRAND OF THIS COMPLICATED, INTRICATE WEB OF VALUES MEET THE
CONTENDING FORCES OF PARTISAN POLITICS.  (FN146)  THE PRACTICAL
SIGNIFICANCE OF APPORTIONMENT IS THAT THE NEXT ELECTION RESULTS MAY
DIFFER BECAUSE OF IT.  APPORTIONMENT BATTLES ARE OVERWHELMINGLY PARTY
OR INTRA-PARTY CONTESTS.  (FN147)  IT WILL ADD A VIRULENT SOURCE OF
FRICTION AND TENSION IN FEDERAL-STATE RELATIONS TO EMBROIL THE FEDERAL
JUDICIARY IN THEM.  (FN148)

IV. 

APPELLANTS, HOWEVER, CONTEND THAT THE FEDERAL COURTS MAY PROVIDE THE
STANDARD WHICH THE FOURTEENTH AMENDMENT LACKS BY REFERENCE TO THE
PROVISIONS OF THE CONSTITUTION OF TENNESSEE.  THE ARGUMENT IS THAT
ALTHOUGH THE SAME OR GREATER DISPARITIES OF ELECTORAL STRENGTH MAY BE
SUFFERED TO EXIST IMMUNE FROM FEDERAL JUDICIAL REVIEW IN STATES WHERE
THEY RESULT FROM APPORTIONMENT LEGISLATION CONSISTENT WITH STATE
CONSTITUTIONS, THE TENNESSEE LEGISLATURE MAY NOT ABRIDGE THE RIGHTS
WHICH, ON ITS FACE, ITS OWN CONSTITUTION APPEARS TO GIVE, WITHOUT BY
THAT ACT DENYING EQUAL PROTECTION OF THE LAWS.  IT IS SAID THAT THE LAW
OF TENNESSEE, AS EXPRESSED BY THE WORDS OF ITS WRITTEN CONSTITUTION,
HAS MADE THE BASIC CHOICE AMONG POLICIES IN FAVOR OF REPRESENTATION
PROPORTIONED TO POPULATION, AND THAT IT IS NO LONGER OPEN TO THE STATE
TO ALLOT ITS VOTING POWER ON OTHER PRINCIPLES. 

THIS REASONING DOES NOT BEAR ANALYSIS.  LIKE CLAIMS INVOKING STATE
CONSTITUTIONAL REQUIREMENT HAVE BEEN REJECTED HERE AND FOR GOOD
REASON.  IT IS SETTLED THAT WHATEVER FEDERAL CONSEQUENCES MAY DERIVE
FROM A DISCRIMINATION WORKED BY A STATE STATUTE MUST BE THE SAME AS IF
THE SAME DISCRIMINATION WERE WRITTEN INTO THE STATE'S FUNDAMENTAL LAW. 
NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362.  AND SEE
CASTILLO V. MCCONNICO, 168 U.S. 674; COULTER V. LOUISVILLE & N.R. CO.,
196 U.S. 599, 608-609; OWENSBORO WATERWORKS CO. V. OWENSBORO, 200 U.S.
38; HERBERT V. LOUISIANA, 272 U.S. 312, 316-317; SNOWDEN V. HUGHES, 321
U.S. 1, 11.  APPELLANTS COMPLAIN OF A PRACTICE WHICH, BY THEIR OWN
ALLEGATIONS, HAS BEEN THE LAW OF TENNESSEE FOR SIXTY YEARS.  THEY
ALLEGE THAT THE APPORTIONMENT ACT OF 1901 CREATED UNEQUAL DISTRICTS
WHEN PASSED AND STILL MAINTAINS UNEQUAL DISTRICTS.  THEY ALLEGE THAT
THE LEGISLATURE HAS SINCE 1901 PURPOSEFULLY RETAINED UNEQUAL
DISTRICTS.  AND THE SUPREME COURT OF TENNESSEE HAS REFUSED TO
INVALIDATE THE LAW ESTABLISHING THESE UNEQUAL DISTRICTS.  KIDD V.
MCCANLESS, 200 TENN. 273, 292 S.W.2D 40; APPEAL DISMISSED HERE IN 352
U.S. 920.  IN THESE CIRCUMSTANCES, WHAT WAS SAID IN THE BROWNING CASE,
SUPRA, AT 369, CLEARLY GOVERNS THIS CASE:    "  ...  HERE, ACCORDING TO
PETITIONER'S OWN CLAIM, ALL THE ORGANS OF THE STATE ARE CONFORMING TO A
PRACTICE, SYSTEMATIC, UNBROKEN FOR MORE THAN FORTY YEARS, AND NOW
QUESTIONED FOR THE FIRST TIME.  IT WOULD BE A NARROW CONCEPTION OF
JURISPRUDENCE TO CONFINE THE NOTION OF 'LAWS' TO WHAT IS FOUND WRITTEN
ON THE STATUTE BOOKS, AND TO DISREGARD THE GLOSS WHICH LIFE HAS WRITTEN
UPON IT.  SETTLED STATE PRACTICE CANNOT SUPPLANT CONSTITUTIONAL
GUARANTEES, BUT IT CAN ESTABLISH WHAT IS STATE LAW.  THE EQUAL
PROTECTION CLAUSE DID NOT WRITE AN EMPTY FORMALISM INTO THE
CONSTITUTION.  DEEPLY EMBEDDED TRADITIONAL WAYS OF CARRYING OUT STATE
POLICY, SUCH AS THOSE OF WHICH PETITIONER COMPLAINS, ARE OFTEN TOUGHER
AND TRUER LAW THAN THE DEAD WORDS OF THE WRITTEN TEXT  ...  .  THE
EQUAL PROTECTION CLAUSE IS NOT A COMMAND OF CANDOR  ...  ." 
TENNESSEE'S LAW AND ITS POLICY RESPECTING APPORTIONMENT ARE WHAT 60
YEARS OF PRACTICE SHOW THEM TO BE, NOT WHAT APPELLANTS CULL FROM THE
UNENFORCED AND, ACCORDING TO ITS OWN JUDICIARY, UNENFORCEABLE WORDS OF
ITS CONSTITUTION.  THE STATUTE COMES HERE ON THE SAME FOOTING,
THEREFORE, AS WOULD THE APPORTIONMENT LAWS OF NEW JERSEY, CALIFORNIA OR
CONNECTICUT, (FN149) AND IS UNAFFECTED BY ITS SUPPOSED REPUGNANCE TO
THE STATE CONSTITUTIONAL LANGUAGE ON WHICH APPELLANTS RELY.  (FN150) 

IN ANOTHER ASPECT, HOWEVER, THE KIDD V. MCCANLESS CASE, SUPRA,
INTRODUCES A FACTOR PECULIAR TO THIS LITIGATION, WHICH ONLY EMPHASIZES
THE DUTY OF DECLINING THE EXERCISE OF FEDERAL JUDICIAL JURISDICTION. 
IN ALL OF THE APPORTIONMENT CASES WHICH HAVE COME BEFORE THE COURT, A
CONSIDERATION WHICH HAS BEEN WEIGHTY IN DETERMINING THEIR NON
JUSTICIABILITY HAS BEEN THE DIFFICULTY OR IMPOSSIBILITY OF DEVISING
EFFECTIVE JUDICIAL REMEDIES IN THIS CLASS OF CASE.  AN INJUNCTION
RESTRAINING A GENERAL ELECTION UNLESS THE LEGISLATURE REAPPORTIONS
WOULD PARALYZE THE CRITICAL CENTERS OF A STATE'S POLITICAL SYSTEM AND
THREATEN POLITICAL DISLOCATION WHOSE CONSEQUENCES ARE NOT FORESEEABLE. 
A DECLARATION DEVOID OF IMPLIED COMPULSION OF INJUNCTIVE OR OTHER
RELIEF WOULD BE AN IDLE THREAT.  (FN151)  SURELY A FEDERAL DISTRICT
COURT COULD NOT ITSELF REMAP THE STATE:  THE SAME COMPLEXITIES WHICH
IMPEDE EFFECTIVE JUDICIAL REVIEW OF APPORTIONMENT A FORTIORI MAKE
IMPOSSIBLE A COURT'S CONSIDERATION OF THESE IMPONDERABLES AS AN
ORIGINAL MATTER.  AND THE CHOICE OF ELECTIONS AT LARGE AS OPPOSED TO
ELECTIONS BY DISTRICT, HOWEVER UNEQUAL THE DISTRICTS, IS A MATTER OF
SWEEPING POLITICAL JUDGMENT HAVING ENORMOUS POLITICAL IMPLICATIONS, THE
NATURE AND REACH OF WHICH ARE CERTAINLY BEYOND THE INFORMED
UNDERSTANDING OF, AND CAPACITY FOR APPRAISAL BY, COURTS. 

IN TENNESSEE, MOREOVER, THE MCCANLESS CASE HAS CLOSED OFF SEVERAL
AMONG EVEN THESE UNSATISFACTORY AND DANGEROUS MODES OF RELIEF.  THAT
CASE WAS A SUIT IN THE STATE COURTS ATTACKING THE 1901 REAPPORTIONMENT
ACT AND SEEKING A DECLARATION AND AN INJUNCTION OF THE ACT'S
ENFORCEMENT OR, ALTERNATIVELY, A WRIT OF MANDAMUS COMPELLING STATE
ELECTION OFFICIALS TO HOLD THE ELECTIONS AT LARGE, OR, AGAIN
ALTERNATIVELY, A DECREE OF THE COURT REAPPORTIONING THE STATE.  THE
CHANCELLOR DENIED ALL COERCIVE RELIEF, BUT ENTERTAINED THE SUIT FOR THE
PURPOSE OF RENDERING A DECLARATORY JUDGMENT.  IT WAS HIS VIEW THAT
DESPITE AN INVALIDATION OF THE STATUTE UNDER WHICH THE PRESENT
LEGISLATURE WAS ELECTED, THAT BODY WOULD CONTINUE TO POSSESS DE FACTO
AUTHORITY TO REAPPORTION, AND THAT THEREFORE THE MAINTAINING OF THE
SUIT DID NOT THREATEN THE DISRUPTION OF THE GOVERNMENT.  THE TENNESSEE
SUPREME COURT AGREED THAT NO COERCIVE RELIEF COULD BE GRANTED; IN
PARTICULAR, IT SAID, "THRE IS NO PROVISION OF LAW FOR ELECTION OF OUR
GENERAL ASSEMBLY BY AN ELECTION AT LARGE OVER THE STATE."  200 TENN.,
AT 277, 292 S.W.2D, AT 42.  THUS, A LEGISLATURE ELECTED AT LARGE WOULD
NOT BE THE LEGALLY CONSTITUTED LEGISLATIVE AUTHORITY OF THE STATE.  THE
COURT REVERSED, HOWEVER, THE CHANCELLOR'S DETERMINATION TO GIVE
DECLARATORY RELIEF, HOLDING THAT THE GROUND OF DEMURRER WHICH ASSERTED
THAT A STRIKING DOWN OF THE STATUTE WOULD DISRUPT THE ORDERLY PROCESS
OF GOVERNMENT SHOULD HAVE BEEN SUSTAINED: 

"(4)  IT SEEMS OBVIOUS AND WE THEREFORE HOLD THAT IF THE ACT OF 1901
IS TO BE DECLARED UNCONSTITUTIONAL, THEN THE DE FACTO DOCTRINE CANNOT
BE APPLIED TO MAINTAIN THE PRESENT MEMBERS OF THE GENERAL ASSEMBLY IN
OFFICE.  IF THE CHANCELLOR IS CORRECT IN HOLDING THAT THIS STATUTE HAS
EXPIRED BY THE PASSAGE OF THE DECADE FOLLOWING ITS ENACTMENT THEN FOR
THE SAME REASON ALL PRIOR APPORTIONMENT ACTS HAVE EXPIRED BY A LIKE
LAPSE OF TIME AND ARE NON-EXISTENT.  THEREFORE WE WOULD NOT ONLY NOT
HAVE ANY EXISTING MEMBERS OF THE GENERAL ASSEMBLY BUT WE WOULD HAVE NO
APPORTIONMENT ACT WHATEVER UNDER WHICH A NEW ELECTION COULD BE HELD FOR
THE ELECTION OF MEMBERS TO THE GENERAL ASSEMBLY. 

     *         *         *     *         * 

"THE ULTIMATE RESULT OF HOLDING THIS ACT UNCONSTITUTIONAL BY REASON
OF THE LAPSE OF TIME WOULD BE TO DEPRIVE US OF THE PRESENT LEGISLATURE
AND THE MEANS OF ELECTING A NEW ONE AND ULTIMATELY BRING ABOUT THE
DESTRUCTION OF THE STATE ITSELF."  200 TENN., AT 281-282, 292 S.W.2D,
AT 44. 

A FEDERAL COURT ENFORCING THE FEDERAL CONSTITUTION IS NOT, TO BE
SURE, BOUND BY THE REMEDIAL DOCTRINES OF THE STATE COURTS.  BUT IT MUST
CONSIDER AS PERTINENT TO THE PROPRIETY OR IMPROPRIETY OF EXERCISING ITS
JURISDICTION THOSE STATE-LAW EFFECTS OF ITS DECREE WHICH IT CANNOT
ITSELF CONTROL.  A FEDERAL COURT CANNOT PROVIDE THE AUTHORITY REQUISITE
TO MAKE A LEGISLATURE THE PROPER GOVERNING BODY OF THE STATE OF
TENNESSEE.  AND IT CANNOT BE DOUBTED THAT THE STRIKING DOWN OF THE
STATUTE HERE CHALLENGED ON EQUAL PROTECTION GROUNDS, NO LESS THAN ON
GROUNDS OF FAILURE TO REAPPORTION DECENNIALLY, WOULD DEPRIVE THE STATE
OF ALL VALID APPORTIONMENT LEGISLATION AND - UNDER THE RULING IN
MCCANLESS - DEPRIVE THE STATE OF AN EFFECTIVE LAW-BASED LEGISLATIVE
BRANCH.  JUST SUCH CONSIDERATIONS, AMONG OTHERS HERE PRESENT, WERE
DETERMINATIVE IN LUTHER V. BORDEN AND THE OREGON INITIATIVE CASES. 
(FN152) 

ALTHOUGH THE DISTRICT COURT HAD JURISDICTION IN THE VERY RESTRICTED
SENSE OF POWER TO DETERMINE WHETHER IT COULD ADJUDICATE THE CLAIM, THE
CASE IS OF THAT CLASS OF POLITICAL CONTROVERSY WHICH, BY THE NATURE OF
ITS SUBJECT, IS UNFIT FOR FEDERAL JUDICIAL ACTION.  THE JUDGMENT OF THE
DISTRICT COURT, IN DISMISSING THE COMPLAINT FOR FAILURE TO STATE A
CLAIM ON WHICH RELIEF CAN BE GRANTED, SHOULD THEREFORE BE AFFIRMED. 

FN1  SEE WOOD V. BROOM, 287 U.S. 1; COLEGROVE V. GREEN, 328 U.S. 549,
REHEARING DENIED, 329 U.S. 825, MOTION FOR REARGUMENT BEFORE THE FULL
BENCH DENIED, 329 U.S. 828; COOK V. FORTSON, 329 U.S. 675, REHEARING
DENIED, 329 U.S. 829; TURMAN V. DUCKWORTH, 329 U.S. 675, REHEARING
DENIED, 329 U.S. 829; COLEGROVE V. BARRETT, 330 U.S. 804; MACDOUGALL V.
GREEN, 335 U.S. 281; SOUTH V. PETERS, 339 U.S. 276; TEDESCO V. BOARD OF
SUPERVISORS, 339 U.S. 940; REMMEY V. SMITH, 342 U.S. 916; COX V.
PETERS, 342 U.S. 936, REHEARING DENIED, 343 U.S. 921; ANDERSON V.
JORDAN, 343 U.S. 912; KIDD V. MCCANLESS, 352 U.S. 920; RADFORD V. GARY,
352 U.S. 991; HARTSFIELD V. SLOAN, 357 U.S. 916; MATTHEWS V. HANDLEY,
361 U.S. 127; PERRY V. FOLSOM, 144 F. SUPP. 874 (D.C.N.D. ALA.); MAGRAW
V. DONOVAN, 163 F. SUPP.  184 (D.C.D. MINN.); CF. DYER V. KAZUHISA ABE,
138 F. SUPP. 220 (D.C.D. HAWAII).  AND SEE KEOGH V. NEELY, 50 F.2D 685
(C.A. 7TH CIR.). 

FN2  ALTHOUGH THE MOTION TO INTERVENE BY THE MAYOR OF NASHVILLE
ASSERTED AN INTEREST IN THE LITIGATION IN ONLY A REPRESENTATIVE
CAPACITY, THE COMPLAINT WHICH HE SUBSEQUENTLY FILED SET FORTH THAT HE
WAS A QUALIFIED VOTER WHO ALSO SUED IN HIS OWN BEHALF.  THE
MUNICIPALITIES OF KNOXVILLE AND CHATTANOOGA PURPORT TO REPRESENT THEIR
RESIDENTS.  SINCE THE CLAIMS OF THE MUNICIPAL INTERVENORS DO NOT DIFFER
MATERIALLY FROM THOSE OF THE PARTIES WHO SUE AS INDIVIDUAL VOTERS, THE
COURT NEED NOT NOW DETERMINE WHETHER THE MUNICIPALITIES ARE PROPER
PARTIES TO THIS PROCEEDING.  SEE, E.G., STEWART V. KANSAS CITY, 239
U.S. 14. 

FN3  THE ORIGINAL COMPLAINT NAMED AS DEFENDANTS TENNESSEE'S SECRETARY
OF STATE, ATTORNEY GENERAL, COORDINATOR OF ELECTIONS, AND THE THREE
MEMBERS OF THE STATE BOARD OF ELECTIONS, SEEKING TO MAKE THE BOARD
MEMBERS REPRESENTATIVES OF ALL THE STATE'S COUNTY ELECTION
COMMISSIONERS.  THE PRAYER IN AN INTERVENING COMPLAINT BY THE CITY OF
KNOXVILLE, THAT THE COMMISSIONERS OF ELECTIONS OF KNOX COUNTY BE ADDED
AS PARTIES DEFENDANT SEEMS NOT TO HAVE BEEN ACTED ON BY THE COURT
BELOW.  DEFENDANTS MOVED TO DISMISS, INTER ALIA, ON THE GROUND OF
FAILURE TO JOIN INDISPENSABLE PARTIES, AND THEY ARGUE IN THIS COURT
THAT ONLY THE COUNTY ELECTION COMMISSIONERS OF THE NINETY-FIVE COUNTIES
ARE THE EFFECTIVE ADMINISTRATORS OF TENNESSEE'S ELECTIONS LAWS, AND
THAT NONE OF THE DEFENDANTS HAVE SUBSTANTIAL DUTIES IN CONNECTION
THEREWITH.  THE DISTRICT COURT DEFERRED RULING ON THIS GROUND OF THE
MOTION.  INASMUCH AS IT INVOLVES QUESTIONS OF LOCAL LAW MORE
APPROPRIATELY DECIDED BY JUDGES SITTING IN TENNESSEE THAN BY THIS
COURT, AND SINCE IN ANY EVENT THE FAILURE TO JOIN COUNTY ELECTION
COMMISSIONERS IN THIS ACTION LOOKING TO PROSPECTIVE RELIEF COULD BE
CORRECTED, IF NECESSARY, BY AMENDMENT OF THE COMPLAINTS, THE ISSUE DOES
NOT CONCERN THE COURT ON THIS APPEAL. 

FN4  JURISDICTION IS PREDICATED UPON R.S. SEC. 1979, 42 U.S.C. SEC.
1983, AND 28 U.S.C.  SEC. 1343(3). 

FN5  HOWEVER, COUNTIES HAVING TWO-THIRDS OF THE RATIO REQUIRED FOR A
REPRESENTATIVE ARE ENTITLED TO SEAT ONE MEMBER IN THE HOUSE, AND THERE
ARE CERTAIN GEOGRAPHICAL RESTRICTIONS UPON THE FORMATION OF SENATE
DISTRICTS.  THE APPLICABLE PROVISIONS OF ARTICLE II OF THE TENNESSEE
CONSTITUTION ARE: 

"SEC. 4.  CENSUS.  - AN ENUMERATION OF THE QUALIFIED VOTERS, AND AN
APPORTIONMENT OF THE REPRESENTATIVES IN THE GENERAL ASSEMBLY, SHALL BE
MADE IN THE YEAR ONE THOUSAND EIGHT HUNDRED AND SEVENTY-ONE, AND WITHIN
EVERY SUBSEQUENT TERM OF TEN YEARS." 

"SEC. 5.  APPORTIONMENT OF REPRESENTATIVES.  - THE NUMBER OF
REPRESENTATIVES SHALL, AT THE SEVERAL PERIODS OF MAKING THE
ENUMERATION, BE APPORTIONED AMONG THE SEVERAL COUNTIES OR DISTRICTS,
ACCORDING TO THE NUMBER OF QUALIFIED VOTERS IN EACH; AND SHALL NOT
EXCEED SEVENTY-FIVE, UNTIL THE POPULATION OF THE STATE SHALL BE ONE
MILLION AND A HALF, AND SHALL NEVER EXCEED NINETY-NINE; PROVIDED THAT
ANY COUNTY HAVING TWO-THIRDS OF THE RATIO SHALL BE ENTITLED TO ONE
MEMBER." 

"SEC. 6.  APPORTIONMENT OF SENATORS.  - THE NUMBER OF SENATORS SHALL,
AT THE SEVERAL PERIODS OF MAKING THE ENUMERATION, BE APPORTIONED AMONG
THE SEVERAL COUNTIES OR DISTRICTS ACCORDING TO THE NUMBER OF QUALIFIED
ELECTORS IN EACH, AND SHALL NOT EXCEED ONE-THIRD THE NUMBER OF
REPRESENTATIVES.  IN APPORTIONING THE SENATORS AMONG THE DIFFERENT
COUNTIES, THE FRACTION THAT MAY BE LOST BY ANY COUNTY OR COUNTIES, IN
THE APPORTIONMENT OF MEMBERS OF THE HOUSE OF REPRESENTATIVES, SHALL BE
MADE UP TO SUCH COUNTY OR COUNTIES IN THE SENATE, AS NEAR AS MAY BE
PRACTICABLE.  WHEN A DISTRICT IS COMPOSED OF TWO OR MORE COUNTIES, THEY
SHALL BE ADJOINING; AND NO COUNTY SHALL BE DIVIDED IN FORMING A
DISTRICT." 

FN6  IT IS ALLEGED THAT CERTAIN AMENDMENTS TO THE ACT OF 1901 MADE
ONLY MINOR MODIFICATIONS OF THAT ACT, ADJUSTING THE BOUNDARIES OF
INDIVIDUAL DISTRICTS IN A MANNER NOT MATERIAL TO PLAINTIFFS' CLAIMS. 

FN7  THE EXHIBITS DO NOT REVEAL THE SOURCE OF THE POPULATION FIGURES
WHICH THEY SET FORTH, BUT IT APPEARS THAT THE FIGURES WERE TAKEN FROM
THE UNITED STATES CENSUS OF POPULATION, 1950, VOLUME II, PART 42
(TENNESSEE), TABLE 41, AT 76-91.  THESE CENSUS FIGURES REPRESENT THE
TOTAL POPULATION OVER TWENTY-ONE YEARS OF AGE IN EACH TENNESSEE COUNTY;
THEY DO NOT PURPORT TO ENUMERATE "QUALIFIED VOTERS" OR "QUALIFIED
ELECTORS," THE MEASURE OF APPORTIONMENT PRESCRIBED BY THE TENNESSEE
CONSTITUTION.  SEE NOTE 5, SUPRA.  TO QUALIFY TO VOTE IN TENNESSEE, IN
ADDITION TO FULFILLING THE AGE REQUIREMENT, AN INDIVIDUAL MUST BE A
CITIZEN OF THE UNITED STATES, A RESIDENT OF THE STATE FOR TWELVE MONTHS
AND OF THE COUNTY WHERE HE OFFERS HIS VOTE FOR SIX MONTHS NEXT
PRECEDING THE ELECTION, AND MUST NOT BE UNDER THE DISQUALIFICATION
ATTACHING TO CONVICTION FOR CERTAIN OFFENSES.  TENN. CODE ANN., 1955,
SECS. 2-201, 2-205.  THE STATISTICS FOUND IN THE UNITED STATES CENSUS
OF POPULATION, 1950, VOLUME II, PART 42 (TENNESSEE), TABLE 42, AT 92
97, SUGGEST THAT THE RESIDENCE REQUIREMENT, IN PARTICULAR, MAY BE AN
UNKNOWN VARIABLE OF CONSIDERABLE SIGNIFICANCE.  APPELLANTS DO NOT
SUGGEST A MEANS BY WHICH A COURT, ON THE BASIS OF THE FEDERAL CENSUS
FIGURES, CAN DETERMINE THE NUMBER OF QUALIFIED VOTERS IN THE VARIOUS
TENNESSEE COUNTIES. 

FN8  THE "COUNTY AID FUNDS" DERIVED FROM A PORTION OF A STATE
GASOLINE PRIVILEGE TAX, FOR EXAMPLE, ARE DISTRIBUTED AMONG THE COUNTIES
AS FOLLOWS:  ONE-HALF EQUALLY AMONG THE NINETY-FIVE COUNTIES, ONE
QUARTER ON THE BASIS OF AREA, ONE-QUARTER ON THE BASIS OF POPULATION,
TO BE USED BY COUNTY AUTHORITIES IN THE BUILDING, REPAIRING AND
IMPROVING OF COUNTY ROADS AND BRIDGES.  TENN. CODE ANN., 1955, SEC. 54
403.  APPELLANTS URGE THAT THIS DISTRIBUTION IS DISCRIMINATORY.    FN9
PLAINTIFFS ALSO SUGGESTED, AS AN ALTERNATIVE TO AT-LARGE ELECTIONS,
THAT THE DISTRICT COURT MIGHT ITSELF REDISTRICT THE STATE.  THEY DID
NOT, HOWEVER, EXPRESSLY PRAY SUCH RELIEF. 

FN10  SEE BICKEL, FOREWORD:  THE PASSIVE VIRTUES, 75 HARV. L. REV.
40, 45 ET SEQ. (1961). 

FN11  SEE, E.G., UNITED STATES V. PALMER, 3 WHEAT.  610, 634, 635;
THE DIVINA PASTORA, 4 WHEAT.  52; WILLIAMS V. SUFFOLK INS. CO., 13 PET.
415; KENNETT V. CHAMBERS, 14 HOW.  38; DOE V. BRADEN, 16 HOW.  635;
JONES V. UNITED STATES, 137 U.S. 202; TERLINDEN V. AMES, 184 U.S. 270;
CHARLTON V. KELLY, 229 U.S. 447; OETJEN V. CENTRAL LEATHER CO., 246
U.S. 297; EX PARTE PERU, 318 U.S. 578; CLARK V. ALLEN, 331 U.S. 503. 
COMPARE FOSTER AND ELAM V. NEILSON, 2 PET. 253, WITH UNITED STATES V.
ARREDONDO, 6 PET. 691.  OF COURSE, JUDGMENT CONCERNING THE "POLITICAL"
NATURE OF EVEN A CONTROVERSY AFFECTING THE NATION'S FOREIGN AFFAIRS IS
NOT A SIMPLE MECHANICAL MATTER, AND CERTAIN OF THE COURT'S DECISIONS
HAVE ACCORDED SCANT WEIGHT TO THE CONSIDERATION OF UNITY OF ACTION IN
THE CONDUCT OF EXTERNAL RELATIONS.  COMPARE VERMILYA-BROWN CO. V.
CONNELL, 335 U.S. 377, WITH UNITED STATES V. PINK, 315 U.S. 203. 

FN12  OBVIOUSLY, THIS IS THE EQUIVALENT OF SAYING THAT THE
CHARACTERISTICS ARE NOT "CONSTITUTIONALLY REQUISITE" IN A JUDICIALLY
ENFORCEABLE SENSE.  THE RECOGNITION OF THEIR NECESSITY AS A CONDITION
OF LEGISLATION IS LEFT, AS IS OBSERVANCE OF CERTAIN OTHER
CONSTITUTIONAL COMMANDS, TO THE CONSCIENCE OF THE NON-JUDICIAL ORGANS. 
CF. KENTUCKY V. DENNISON, 24 HOW.  66. 

FN13  ALSO COMPARE THE COLEMAN CASE AND UNITED STATES V. SPRAGUE, 282
U.S. 716, WITH HAWKE V. SMITH (NO. 1), 253 U.S. 221.  SEE THE NATIONAL
PROHIBITION CASES, 253 U.S. 350; AND CONSIDER THE COURT'S TREATMENT OF
THE SEVERAL CONTENTIONS IN LESER V. GARNETT, 258 U.S. 130. 

FN14  E.G., MYERS V. ANDERSON, 238 U.S. 368; NIXON V. CONDON, 286
U.S. 73; LANE V. WILSON, 307 U.S. 268; SMITH V. ALLWRIGHT, 321 U.S.
649.  THE ACTION FOR DAMAGES FOR IMPROPERLY REJECTING AN ELECTOR'S VOTE
HAD BEEN GIVEN BY THE ENGLISH LAW SINCE THE TIME OF ASHBY V. WHITE, 1
BROWN'S CASES IN PARLIAMENT 62; 2 LD. RAYM.  938; 3 LD. RAYM.  320, A
CASE WHICH IN ITS OWN DAY PRECIPITATED AN INTRAPARLIAMENTARY WAR OF
MAJOR DIMENSIONS.  SEE 6 HANSARD, PARLIAMENTARY HISTORY OF ENGLAND
(1810), 225-324, 376-436.  PRIOR TO THE RACIAL-DISCRIMINATION CASES,
THIS COURT HAD RECOGNIZED THE ACTION, BY IMPLICATION, IN DICTUM IN
SWAFFORD V. TEMPLETON, 185 U.S. 487, AND WILEY V. SINKLER, 179 U.S. 58,
BOTH RESPECTING FEDERAL ELECTIONS. 

FN15  CF. GOMILLION V. LIGHTFOOT, 364 U.S. 339. 

FN16  BY STATUTE AND ACTION FOR PREVENTIVE RELIEF IS NOW GIVEN THE
UNITED STATES IN CERTAIN VOTING CASES.  71 STAT. 637, 42 U.S.C. SEC.
1971(C), AMENDING R.S. SEC. 2004.  SEE UNITED STATES V. RAINES, 362
U.S. 17; UNITED STATES V. THOMAS, 362 U.S. 58. 

FN17  COMPARE RHODE ISLAND V. MASSACHUSETTS, 12 PET. 657, AND CASES
FOLLOWING, WITH GEORGIA V. STANTON, 6 WALL.  50. 

FN18  COMPARE WORCESTER V. GEORGIA, 6 PET. 515, WITH CHEROKEE NATION
V. GEORGIA, 5 PET. 1, 20, 28 (MR. JUSTICE JOHNSON, CONCURRING), 51 AND
75 (MR. JUSTICE THOMPSON, DISSENTING). 

FN19  THIS WAS AN ALTERNATIVE GROUND OF CHIEF JUSTICE MARSHALL'S
OPINION FOR THE COURT.  ID., AT 20.  THE QUESTION WHICH MARSHALL
RESERVED AS "UNNECESSARY TO DECIDE," IBID., WAS NOT THE JUSTICIABILITY
OF THE BILL IN THIS ASPECT, BUT THE "MORE DOUBTFUL" QUESTION WHETHER
THAT "PART OF THE BILL WHICH RESPECTS THE LAND OCCUPIED BY THE INDIANS,
AND PRAYS THE AID OF THE COURT TO PROTECT THEIR POSSESSION," MIGHT BE
ENTERTAINED.  IBID.  MR. JUSTICE JOHNSON, CONCURRING, FOUND THE
CONTROVERSY NON-JUSTICIABLE AND WOULD HAVE PUT THE RULING SOLELY ON
THIS GROUND, ID., AT 28, AND MR. JUSTICE THOMPSON, IN DISSENT, AGREED
THAT MUCH OF THE MATTER IN THE BILL WAS NOT FIT FOR JUDICIAL
DETERMINATION.  ID., AT 51, 75. 

FN20  CF. MISSISSIPPI V. JOHNSON, 4 WALL.  475. 

FN21  CONSIDERATIONS SIMILAR TO THOSE WHICH DETERMINED THE CHEROKEE
NATION CASE AND GEORGIA V. STANTON NO DOUBT EXPLAIN THE CELEBRATED
DECISION IN NABOB OF THE CARNATIC V. EAST INDIA CO., 1 VES.  JUN. *371;
2 VES.  JUN.  *56, RATHER THAN ANY ATTRIBUTION OF A PORTION OF BRITISH
SOVEREIGNTY, IN RESPECT OF INDIAN AFFAIRS, TO THE COMPANY.  THE
RELUCTANCE OF THE ENGLISH JUDGES TO INVOLVE THEMSELVES IN CONTESTS OF
FACTIONAL POLITICAL POWER IS OF ANCIENT STANDING.  IN THE DUKE OF
YORK'S CLAIM TO THE CROWN, 5 ROTULI PARL.  375, PRINTED IN WAMBAUGH,
CASES ON CONSTITUTIONAL LAW (1915), 1, THE ROLE WHICH THE JUDGES WERE
ASKED TO PLAY APPEARS TO HAVE BEEN RATHER THAT OF ADVOCATES THAN OF
JUDGES, BUT THE ANSWER WHICH THEY RETURNED TO THE LORDS RELIED ON
REASONS EQUALLY APPLICABLE TO EITHER ROLE. 

FN22  "THE UNITED STATES SHALL GUARANTEE TO EVERY STATE IN THIS UNION
A REPUBLICAN FORM OF GOVERNMENT, AND SHALL PROTECT EACH OF THEM AGAINST
INVASION; AND ON APPLICATION OF THE LEGISLATURE, OR OF THE EXECUTIVE
(WHEN THE LEGISLATURE CANNOT BE CONVENED) AGAINST DOMESTIC VIOLENCE." 

FN23  CF. THE CASES HOLDING THAT THE FOURTEENTH AMENDMENT IMPOSES NO
SUCH RESTRICTION UPON THE FORM OF A STATE'S GOVERNMENTAL ORGANIZATION
AS WILL PERMIT PERSONS AFFECTED BY GOVERNMENT ACTION TO COMPLAIN THAT
IN ITS ORGANIZATION PRINCIPLES OF SEPARATION OF POWERS HAVE BEEN
VIOLATED.  E.G., DREYER V. ILLINOIS, 187 U.S. 71; SOLIAH V. HESKIN, 222
U.S. 522; HOUCK V. LITTLE RIVER DRAINAGE DISTRICT, 239 U.S. 254.  THE
SAME CONSISTENT REFUSAL OF THIS COURT TO FIND THAT THE FEDERAL
CONSTITUTION RESTRICTS STATE POWER TO DESIGN THE STRUCTURE OF STATE
POLITICAL INSTITUTIONS IS REFLECTED IN THE CASES REJECTING CLAIMS
ARISING OUT OF THE STATES' CREATION, ALTERATION, OR DESTRUCTION OF
LOCAL SUBDIVISIONS OR THEIR POWERS, INSOFAR AS THESE CLAIMS ARE MADE BY
THE SUBDIVISIONS THEMSELVES, SEE LARAMIE COUNTY V. ALBANY COUNTY, 92
U.S. 307; PAWHUSKA V. PAWHUSKA OIL & GAS CO., 250 U.S. 394; TRENTON V.
NEW JERSEY, 262 U.S. 182; RISTY V. CHICAGO, R.I.&P.R. CO., 270 U.S.
378, 389-390; WILLIAMS V. MAYOR AND CITY COUNCIL OF BALTIMORE, 289 U.S.
36, OR BY THE WHOLE BODY OF THEIR RESIDENTS WHO SHARE ONLY A GENERAL,
UNDIFFERENTIATED INTEREST IN THEIR PRESERVATION.  SEE HUNTER V.
PITTSBURGH, 207 U.S. 161.  THE POLICY IS ALSO GIVEN EFFECT BY THE
DENIAL OF "STANDING" TO PERSONS SEEKING TO CHALLENGE STATE ACTION AS
INFRINGING THE INTEREST OF SOME SEPARATE UNIT WITHIN THE STATE'S
ADMINISTRATIVE STRUCTURE - A DENIAL WHICH PRECLUDES THE ARBITRAMENT BY
FEDERAL COURTS OF WHAT ARE ONLY DISPUTES OVER THE LOCAL ALLOCATION OF
GOVERNMENT FUNCTIONS AND POWERS.  SEE, E.G., SMITH V. INDIANA, 191 U.S.
138; BRAXTON COUNTY COURT V. WEST VIRGINIA, 208 U.S. 192; MARSHALL V.
DYE, 231 U.S. 250; STEWART V. KANSAS CITY, 239 U.S. 14. 

FN24  223 U.S., AT 141.  "  ...  THE CONTENTION, IF HELD TO BE SOUND,
WOULD NECESSARILY AFFECT THE VALIDITY, NOT ONLY OF THE PARTICULAR
STATUTE WHICH IS BEFORE US, BUT OF EVERY OTHER STATUTE PASSED IN OREGON
SINCE THE ADOPTION OF THE INITIATIVE AND REFERENDUM.  AND INDEED THE
PROPOSITIONS GO FURTHER THAN THIS, SINCE IN THEIR ESSENCE THEY ASSERT
THAT THERE IS NO GOVERNMENTAL FUNCTION, LEGISLATIVE OR JUDICIAL, IN
OREGON, BECAUSE IT CANNOT BE ASSUMED, IF THE PROPOSITION BE WELL
FOUNDED, THAT THERE IS AT ONE AND THE SAME TIME ONE AND THE SAME
GOVERNMENT WHICH IS REPUBLICAN IN FORM AND NOT OF THAT CHARACTER." 
COMPARE LUTHER V. BORDEN, 7 HOW.  1, 38-39: 

"  ...  FOR, IF THIS COURT IS AUTHORIZED TO ENTER UPON THIS INQUIRY
AS PROPOSED BY THE PLAINTIFF, AND IT SHOULD BE DECIDED THAT THE CHARTER
GOVERNMENT HAD NO LEGAL EXISTENCE DURING THE PERIOD OF TIME ABOVE
MENTIONED, - IF IT HAD BEEN ANNULLED BY THE ADOPTION OF THE OPPOSING
GOVERNMENT, - THEN THE LAWS PASSED BY ITS LEGISLATURE DURING THAT TIME
WERE NULLITIES; ITS TAXES WRONGFULLY COLLECTED; ITS SALARIES AND
COMPENSATION TO ITS OFFICERS ILLEGALLY PAID; ITS PUBLIC ACCOUNTS
IMPROPERLY SETTLED; AND THE JUDGMENTS AND SENTENCES OF ITS COURTS IN
CIVIL AND CRIMINAL CASES NULL AND VOID, AND THE OFFICERS WHO CARRIED
THEIR DECISIONS INTO OPERATION ANSWERABLE AS TRESPASSERS, IF NOT IN
SOME CASES AS CRIMINALS. 

"WHEN THE DECISION OF THIS COURT MIGHT LEAD TO SUCH RESULTS, IT
BECOMES ITS DUTY TO EXAMINE VERY CAREFULLY ITS OWN POWERS BEFORE IT
UNDERTAKES TO EXERCISE JURISDICTION." 

FN25  SEE BOWEN, THE RECENT CONTEST IN RHODE ISLAND (1844); FRIEZE, A
CONCISE HISTORY OF THE EFFORTS TO OBTAIN AN EXTENSION OF SUFFRAGE IN
RHODE ISLAND; FROM THE YEAR 1811 TO 1842 (2D ED. 1842); MOWRY, THE DORR
WAR (1901); WAYLAND, THE AFFAIRS OF RHODE ISLAND (2D ED. 1842). 

FN26  THE COURT REASONED, WITH RESPECT TO THE GUARANTEE AGAINST
DOMESTIC VIOLENCE ALSO CONTAINED IN ART. IV, SEC. 4, THAT THIS, TOO,
WAS AN AUTHORITY COMMITTED SOLELY TO CONGRESS; THAT CONGRESS HAD
EMPOWERED THE PRESIDENT, NOT THE COURTS, TO ENFORCE IT; AND THAT IT WAS
INCONCEIVABLE THAT THE COURTS SHOULD ASSUME A POWER TO MAKE
DETERMINATIONS IN THE PREMISES WHICH MIGHT CONFLICT WITH THOSE OF THE
EXECUTIVE.  IT NOTED FURTHER THAT, IN FACT, THE PRESIDENT HAD
RECOGNIZED THE GOVERNOR OF THE CHARTER GOVERNMENT AS THE LAWFUL
AUTHORITY IN RHODE ISLAND, ALTHOUGH IT HAD BEEN UNNECESSARY TO CALL OUT
THE MILITIA IN HIS SUPPORT. 

FN27  SEE NOTE 24, SUPRA. 

FN28  ID., AT 39, 46-47. 

FN29  ID., AT 41-42. 

FN30  IN EVALUATING THE COURT'S DETERMINATION NOT TO INQUIRE INTO THE
AUTHORITY OF THE CHARTER GOVERNMENT, IT MUST BE REMEMBERED THAT,
THROUGHOUT THE COUNTRY, DORR "HAD RECEIVED THE SYMPATHY OF THE
DEMOCRATIC PRESS.  HIS CAUSE, THEREFORE, BECAME DISTINCTLY A PARTY
ISSUE."  2 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY (REV. ED.
1937), 186. 

FN31  APPELLANTS ALSO ALLEGE DISCRIMINATION IN THE LEGISLATURE'S
ALLOCATION OF CERTAIN TAX BURDENS AND BENEFITS.  WHETHER OR NOT SUCH
DISCRIMINATION WOULD VIOLATE THE EQUAL PROTECTION CLAUSE IF THE TAX
STATUTES WERE CHALLENGED IN A PROPER PROCEEDING, SEE DANE V. JACKSON,
256 U.S. 589; CF. NASHVILLE, C. & ST. L.R. CO. V. WALLACE, 288 U.S.
249, 268, THESE RECITATIVE ALLEGATIONS DO NOT AFFECT THE NATURE OF THE
CONTROVERSY WHICH APPELLANTS' COMPLAINTS PRESENT. 

FN32  APPELLANTS WOULD FIND A "RIGHT" TO HAVE ONE'S BALLOT COUNTED ON
AUTHORITY OF UNITED STATES V. MOSLEY, 238 U.S. 383; UNITED STATES V.
CLASSIC, 313 U.S. 299; UNITED STATES V. SAYLOR, 322 U.S. 385.  ALL THAT
THESE CASES HOLD IS THAT CONSPIRACIES TO COMMIT CERTAIN SHARP ELECTION
PRACTICES WHICH, IN A FEDERAL ELECTION, CAUSE BALLOTS NOT TO RECEIVE
THE WEIGHT WHICH THE LAW HAS IN FACT GIVEN THEM, MAY AMOUNT TO
DEPRIVATIONS OF THE CONSTITUTIONALLY SECURED RIGHT TO VOTE FOR FEDERAL
OFFICERS.  BUT SEE UNITED STATES V. BATHGATE, 246 U.S. 220.  THE CASES
DO NOT SO MUCH AS SUGGEST THAT THERE EXISTS A CONSTITUTIONAL LIMITATION
UPON THE RELATIVE WEIGHT TO WHICH THE LAW MIGHT PROPERLY ENTITLE
RESPECTIVE BALLOTS, EVEN IN FEDERAL ELECTIONS. 

FN33  MACKENZIE, FREE ELECTIONS (1958)(HEREAFTER, MACKENZIE), 108. 

FN34  OGG, ENGLISH GOVERNMENT AND POLITICS (2D ED. 1936)(HEREAFTER,
OGG), 248-250, 257; SEYMOUR, ELECTORAL REFORM IN ENGLAND AND WALES
(1915)(HEREAFTER, SEYMOUR), 46-47. 

FN35  OGG 257-259; SEYMOUR 45-52; CARPENTER, THE DEVELOPMENT OF
AMERICAN POLITICAL THOUGHT (1930)(HEREAFTER, CARPENTER), 45-46. 

FN36  OGG 258. 

FN37  SEYMOUR 51. 

FN38  THE FEDERALIST, NO. 56 (WRIGHT ED. 1961), AT 382.  COMPARE
SEYMOUR 49.  THIS TAKES ACCOUNT OF THE RESTRICTED FRANCHISE AS WELL AS
THE EFFECT OF THE LOCAL-UNIT APPORTIONMENT PRINCIPLE. 

FN39  SEYMOUR 52-76. 

FN40  OGG 264-265; SEYMOUR 318-319. 

FN41  FOR THESE AND OTHER INSTANCES OF GROSS INEQUALITY, SEE SEYMOUR
320-325. 

FN42 SEYMOUR 333-346; OGG 265. 

FN43  SEYMOUR 349, 490-491 

FN44  SEYMOUR 489-518. 

FN45  MACKENZIE 108; SEE ALSO SEYMOUR 513-517. 

FN46  OGG 270. 

FN47  OGG 253. 

FN48  OGG 270-271. 

FN49  OGG 273-274. 

FN50  7 & 8 GEO. VI, C. 41.  THE 1944 ACT WAS AMENDED BY THE HOUSE OF
COMMONS (REDISTRIBUTION OF SEATS) ACT, 1947, 10 & 11 GEO. VI, C. 10,
AND THE TWO, WITH OTHER PROVISIONS, WERE CONSOLIDATED IN THE HOUSE OF
COMMONS (REDISTRIBUTION OF SEATS) ACT, 1949, 12 & 13 GEO. VI, C. 66,
SINCE AMENDED BY THE HOUSE OF COMMONS (REDISTRIBUTION OF SEATS) ACT,
1958, 6 & 7 ELIZ.  II, C. 26. 

FN51  SEE GENERALLY BUTLER, THE REDISTRIBUTION OF SEATS, 33 PUBLIC
ADMINISTRATION 125 (1955). 

FN52  SEE NOTE 50, SUPRA.  HOWEVER, COMMISSIONS ARE GIVEN DISCRETION
TO DEPART FROM THE STRICT APPLICATION OF THE LOCAL BOUNDARY RULE TO
AVOID EXCESSIVE DISPARITIES BETWEEN THE ELECTORATE OF A CONSTITUENCY
AND THE ELECTORAL QUOTA, OR BETWEEN THE ELECTORATE OF A CONSTITUENCY
AND THAT OF NEIGHBORING CONSTITUENCIES.  FOR DETAILED DISCUSSION, SEE
CRAIG, PARLIAMENT AND BOUNDARY COMMISSIONS, (1959) PUBLIC LAW 23.  SEE
ALSO BUTLER, SUPRA, NOTE 51, AT 127. 

FN53  MACKENZIE 108, 113. 

FN54  THE TIMES, DEC. 15, 1954, P. 4, COLS 3-4. 

FN55  (1955) 1 CH. 238. 

FN56  THE COURT RESERVED THE QUESTION WHETHER A JUDICIAL REMEDY MIGHT
BE FOUND IN A CASE IN WHICH IT APPEARED THAT A COMMISSION HAD
MANIFESTLY ACTED IN COMPLETE DISREGARD OF THE ACTS. 

FN57  NOTE 50, SUPRA. 

FN58  FIRST PERIODICAL REPORT OF THE BOUNDARY COMMISSION FOR ENGLAND
(CMD.  9311)(1954), 4, PAR. 19. 

FN59  UNDER THE 1949 ACT, SEE NOTE 50, SUPRA, THE INTERVALS BETWEEN
REPORTS WERE TO NOT LESS THAN THREE NOR MORE THAN SEVEN YEARS, WITH
CERTAIN QUALIFICATIONS.  THE 1958 ACT RAISED THE MINIMUM TO TEN AND THE
MAXIMUM TO FIFTEEN YEARS. 

FN60  FIRST PERIODICAL REPORT, SUPRA, NOTE 58, AT 4, PAR. 20. 

FN61  582 H.C. DEB.  (5TH SER.  1957-1958), 230. 

FN62  SEE THE FEDERALIST, NO. 56, SUPRA, NOTE 38; TUDOR, LIFE OF
JAMES OTIS (1823), 188-190. 

FN63  GRIFFITH, THE RISE AND DEVELOPMENT OF THE GERRYMANDER
(1907)(HEREAFTER, GRIFFITH), 23-24. 

FN64  LUCE, LEGISLATIVE PRINCIPLES (1930)(HEREAFTER, LUCE), 336-342. 

FN65  GRIFFITH 25.    FN66  GRIFFITH 15-16, N. 1. 

FN67  GRIFFITH 28. 

FN68 CARPENTER 48-49, 54; GRIFFITH 26, 28-29; LUCE 339-340. 

FN69  CARPENTER 87; GRIFFITH 26-29, 31. 

FN70  II FARRAND, RECORDS OF THE FEDERAL CONVENTION (1911), 241. 

FN71  THE POWER WAS PROVIDED.  ART. I, SEC. 4, CL. 1. 

FN72  III ELLIOT'S DEBATES (2D ED. 1891), 367; II ID., AT 50-51. 

FN73  SEE MADISON, IN I FARRAND, OP. CIT., SUPRA, NOTE 70, AT 321:
"THE GREAT DIFFICULTY LIES IN THE AFFAIR OF REPRESENTATION; AND IF THIS
COULD BE ADJUSTED, ALL OTHERS WOULD BE SURMOUNTABLE." 

FN74  SEE THE FEDERALIST, NO. 62 (WRIGHT ED. 1961), AT 408-409. 

FN75  SEE THE FEDERALIST, NO. 54, ID., AT 369-374. 

FN76  CARPENTER 130. 

FN77  JEFFERSON, NOTES ON THE STATE OF VIRGINIA (PEDEN ED. 1955), 118
119.  SEE ALSO II WRITINGS OF THOMAS JEFFERSON (MEMORIAL ED. 1903), 160
162. 

FN78  CARPENTER 139-140. 

FN79  GRIFFITH 102-104. 

FN80  GRIFFITH 104-105. 

FN81  LUCE 343-350.  BOWEN, SUPRA, NOTE 25, AT 17-18, RECORDS THAT IN
1824 PROVIDENCE COUNTY, HAVING THREE-FIFTHS OF RHODE ISLAND'S
POPULATION, ELECTED ONLY TWENTY-TWO OF ITS SEVENTY-TWO REPRESENTATIVES,
AND THAT THE TOWN OF PROVIDENCE, MORE THAN DOUBLE THE SIZE OF NEWPORT,
HAD HALF NEWPORT'S NUMBER OF REPRESENTATIVES. 

FN82  CARPENTER 130-137; LUCE 364-367; GRIFFITH 116-117. 

FN83  SEE 14 STAT. 428; 15 STAT. 2, 14, 41. 

FN84  VARIOUS INDICES OF POPULATION WERE EMPLOYED AMONG THE STATES
WHICH TOOK ACCOUNT OF THE FACTOR OF NUMBERS.  SOME COUNTED ALL
INHABITANTS, E.G., N.J. CONST., 1844, ART. IV, SEC. 3; SOME, ONLY WHITE
INHABITANTS, E.G., ILL. CONST., 1848, ART. III, SEC. 8; SOME, MALE
INHABITANTS OVER TWENTY-ONE, E.G., IND. CONST., 1851, ART IV, SECS. 4
5; SOME, QUALIFIED VOTERS, E.G., TENN. CONST., 1834, ART. II, SECS. 4
TO 6; SOME EXCLUDED ALIENS, E.G., N.Y. CONST., 1846, ART. III, SECS. 4,
5 (AND UNTAXED PERSONS OF COLOR); SOME EXCLUDED UNTAXED INDIANS AND
MILITARY PERSONNEL, E.G., NEB. CONST., 1866-1867, ART. II, SEC. 3.  FOR
PRESENT PURPOSES THESE DIFFERENCES, ALTHOUGH NOT UNIMPORTANT AS
REVEALING FUNDAMENTAL DIVERGENCES IN REPRESENTATION THEORY, WILL BE
DISREGARDED. 

FN85  ORE.  CONST., 1857, ART. IV, SECS. 5, 6, 7; ILL. CONST., 1848,
ART. III, SECS. 8, 9; IND. CONST., 1851, ART. IV, SECS. 4, 5, 6; MINN.
CONST., 1857, ART. IV, SEC. 2; WIS.  CONST., 1848, ART. IV, SECS. 3 TO
5; MASS. CONST., 1780, AMENDS.  XXI, XXII; NEB. CONST., 1866-1867, ART.
II, SEC. 3.  ALL OF THESE BUT MINNESOTA MADE PROVISION FOR PERIODIC
REAPPORTIONMENT.  NEVADA'S CONSTITUTION OF 1864, ART. XV, SEC. 13,
PROVIDED THAT THE FEDERAL CENSUSES AND INTERIM STATE DECENNIAL
ENUMERATIONS SHOULD SERVE AS THE BASES OF REPRESENTATION FOR BOTH
HOUSES, BUT DID NOT EXPRESSLY REQUIRE EITHER NUMERICAL EQUALITY OR
REAPPORTIONMENT AT FIXED INTERVALS. 

SEVERAL OF THESE CONSTITUTIONS CONTAIN PROVISIONS WHICH FORBID
SPLITTING COUNTIES OR WHICH OTHERWISE REQUIRE RECOGNITION OF LOCAL
BOUNDARIES.  SEE, E.G., THE SEVERE RESTRICTION IN ILL. CONST., 1848,
ART. III, SEC. 9.  SUCH PROVISIONS WILL ALMOST INEVITABLY PRODUCE
NUMERICAL INEQUALITIES.  SEE, FOR EXAMPLE, UNIVERSITY OF OKLAHOMA,
BUREAU OF GOVERNMENT RESEARCH, LEGISLATIVE APPORTIONMENT IN OKLAHOMA
(1956), 21-23.  HOWEVER, BECAUSE THEIR EFFECT IN THIS REGARD WILL TURN
ON IDIOSYNCRATIC LOCAL FACTORS, AND BECAUSE OTHER CONSTITUTIONAL
PROVISIONS ARE A MORE SIGNIFICANT SOURCE OF INEQUALITY, THESE
PROVISIONS ARE HERE DISREGARDED. 

FN86  TENN. CONST., 1834, ART. II, SECS. 4 TO 6 (TWO-THIRDS OF A
RATIO ENTITLES A COUNTY TO ONE REPRESENTATIVE IN THE HOUSE); W. VA.
CONST., 1861-1863, ART. IV, SECS, 4, 5, 7, 8, 9 (ONE-HALF OF A RATIO
ENTITLES A COUNTY TO ONE REPRESENTATIVE IN THE HOUSE); MICH. CONST.,
1850, ART. IV, SECS. 2 TO 4 (ONE-HALF OF A RATIO ENTITLES EACH COUNTY
THEREAFTER ORGANIZED TO ONE REPRESENTATIVE IN THE HOUSE).  IN OREGON
AND IOWA A MAJOR-FRACTION RULE APPLIED WHICH GAVE A HOUSE SEAT NOT ONLY
TO COUNTIES HAVING A MOIETY OF A SINGLE RATIO, BUT TO ALL COUNTIES
HAVING MORE THAN HALF A RATIO IN EXCESS OF THE MULTIPLE OF A RATIO. 
ORE.  CONST., 1857, ART. IV, SEC. 6, NOTE 85, SUPRA; IOWA CONST., 1857,
ART. III, SECS. 33, 34, 35, 37, NOTE 89, INFRA. 

FN87  SEE BONE, STATES ATTEMPTING TO COMPLY WITH REAPPORTIONMENT
REQUIREMENTS, 17 LAW & CONTEMP.  PROB.  387, 391 (1952). 

FN88  IT ALSO APPEARS, ALTHOUGH THE SECTION IS NOT ALTOGETHER CLEAR,
THAT THE PROVISIONS OF WEST VIRGINIA'S CONSTITUTION CONTROLLING
APPORTIONMENT OF SENATORS WOULD OPERATE IN FAVOR OF THE STATE'S LESS
POPULOUS REGIONS BY LIMITING ANY SINGLE COUNTY TO A MAXIMUM OF TWO
SENATORS.  W. VA. CONST., 1861-1863, ART. IV, SEC. 4. 

FN89  IOWA CONST., 1857, ART. III, SECS. 33, 34, 35, 37. 

FN90  N.Y. CONST., 1846, ART. III, SECS. 4, 5 (EXCEPT HAMILTON
COUNTY); KAN. CONST., 1859, ART. 2, SEC. 2; ART. 10.  THE KANSAS
PROVISIONS REQUIRE PERIODIC APPORTIONMENT BASED ON CENSUSES, BUT DO NOT
IN TERMS DEMAND EQUAL DISTRICTS. 

FN91  OHIO CONST., 1851, ART. XI, SECS. 1 TO 5.  SEE ART. XI, SECS. 6
TO 9 FOR SENATE APPORTIONMENT. 

FN92  ME. CONST., 1819, ART. IV, PT. FIRST, SECS. 2, 3.  SEE ART. IV,
PT. SECOND, SEC. 2, FOR SENATE APPORTIONMENT BASED ON NUMBERS. 

FN93  MO. CONST., 1865, ART. IV, SECS. 2, 7, 8.  SEE ART. IV, SECS. 4
TO 8, FOR SENATE APPORTIONMENT BASED ON NUMBERS. 

FN94  TOWNS SMALLER THAN ONE HUNDRED AND FIFTY, IF SO SITUATED THAT
IT WAS "VERY INCONVENIENT" TO JOIN THEM TO OTHER TOWNS FOR VOTING
PURPOSES, MIGHT BE PERMITTED BY THE LEGISLATURE TO SEND A
REPRESENTATIVE. 

FN95  N.H. CONST., 1792, PT. SECOND, SECS. IX TO XI; PT. SECOND, SEC.
XXVI. 

FN96  PA. CONST., 1838, AS AMENDED, ART. I, SECS. 4, 6, 7. 

FN97  CONN. CONST., 1818, ART. THIRD, SEC. 3. 

FN98  VT. CONST., 1793, C. II, SEC. 7. 

FN99  R.I. CONST., 1842, ART. VI, SEC. 1. 

FN100  N.J. CONST., 1844, ART. IV, SEC. 2, CL. ONE. 

FN101  CONN. CONST., 1818, AMEND. II. 

FN102  VT. CONST., 1793, AMEND. 23. 

FN103  N.J. CONST., 1844, ART. IV, SEC. 3, CL. ONE. 

FN104  R.I. CONST., 1842, ART. V, SEC. 1. 

FN105  ARK. CONST., 1868, ART. V, SECS. 8, 9; VA. CONST., 1864, ART.
IV, SEC. 6 (THIS CONSTITUTION WAS IN EFFECT WHEN VIRGINIA RATIFIED THE
FOURTEENTH AMENDMENT); VA. CONST., 1870, ART. V, SEC. 4 (THIS WAS
VIRGINIA'S RECONSTRUCTION-ACT CONVENTION CONSTITUTION); MISS.  CONST.,
1868, ART. IV, SECS. 33 TO 35; TEX. CONST., 1868, ART. III, SECS. 11,
34.  THE VIRGINIA CONSTITUTIONS AND TEXAS' PROVISIONS FOR APPORTIONING
ITS LOWER CHAMBER DO NOT IN TERMS REQUIRE EQUALITY OF NUMBERS, ALTHOUGH
THEY CALL FOR REAPPORTIONMENT FOLLOWING A CENSUS.  IN ARKANSAS, THE
LEGISLATURE WAS AUTHORIZED, BUT NOT COMMANDED, TO REAPPORTION
PERIODICALLY; IT IS NOT CLEAR THAT EQUALITY WAS REQUIRED. 

FN106  N.C. CONST., 1868, ART. II, SECS. 6, 7.  SEE ART. II, SEC. 5,
FOR SENATE APPORTIONMENT BASED ON NUMBERS. 

FN107  S.C. CONST., 1868, ART. I, SEC. 34; ART. II, SECS. 4 TO 6. 

FN108  LA. CONST., 1868, TIT. II, ARTS. 20, 21.  SEE TIT. II, ARTS.
28 TO 30, FOR SENATE APPORTIONMENT BASED ON NUMBERS. 

FN109  ALA. CONST., 1867, ART. VIII, SEC. 1.  SEE ART. VIII, SEC. 3,
FOR SENATE APPORTIONMENT BASED ON NUMBERS. 

FN110  S.C. CONST., 1868, ART. II, SEC. 8. 

FN111  FLA. CONST., 1868, ART. XIV, PAR. 1.  SEE ART. XIV, PAR. 2,
FOR SENATE APPORTIONMENT. 

FN112  GA. CONST., 1868, ART. III, SEC. 2.  THE EXTENT OF LEGISLATIVE
AUTHORITY TO ALTER THESE DISTRICTS IS UNCLEAR, BUT IT APPEARS THAT THE
STRUCTURE OF THREE CONTIGUOUS COUNTIES FOR EACH OF FORTY-FOUR DISTRICTS
IS MEANT TO BE PERMANENT. 

FN113  GA. CONST., 1868, ART. III, SEC. 3.  THE EXTENT OF LEGISLATIVE
AUTHORITY TO ALTER THE APPORTIONMENT IS UNCLEAR, BUT IT APPEARS THAT
THE THREE-TIERED STRUCTURE IS MEANT TO BE PERMANENT. 

FN114  SEE, E.G., DURFEE, APPORTIONMENT OF REPRESENTATION IN THE
LEGISLATURE:  A STUDY OF STATE CONSTITUTIONS, 43 MICH. L. REV. 1091,
1097 (1945); SHORT, STATES THAT HAVE NOT MET THEIR CONSTITUTIONAL
REQUIREMENTS, 17 LAW & CONTEMP.  PROB.  377 (1952); HARVEY,
REAPPORTIONMENTS OF STATE LEGISLATURES - LEGAL REQUIREMENTS, 17 LAW &
CONTEMP.  PROB.  364, 370 (1952).  FOR AN EXCELLENT CASE STUDY OF
NUMERICAL INEQUALITIES DERIVING SOLELY FROM A ONE-MEMBER-PER-COUNTY
MINIMUM PROVISION IN OHIO, SEE AUMANN, RURAL OHIO HANGS ON, 46 NAT.
MUN.  REV.  189, 191-192 (1957). 

FN115  DAUER AND KELSAY, UNREPRESENTATIVE STATES, 44 NAT. MUN.  REV. 
571, 574 (1955).  (THIS IS THE EFFECT OF A LATER GEORGIA CONSTITUTIONAL
PROVISION, GA. CONST., 1945, SEC. 2-1501, SUBSTANTIALLY SIMILAR TO THAT
OF 1868.)  THE SAME THREE-TIERED SYSTEM HAS SUBSEQUENTLY BEEN ADOPTED
IN FLORIDA, FLA. CONST., 1885, ART. VII, SECS. 3, 4 WHERE ITS EFFECTS
HAVE BEEN INEQUALITIES OF THE ORDER OF EIGHTY TO ONE.  DAUER AND
KELSAY, SUPRA, AT 575, 587. 

FN116  THE CONSTITUTIONS DISCUSSED ARE THOSE UNDER WHICH THE NEW
STATES ENTERED THE UNION. 

FN117  COLO. CONST., 1876, ART. V, SECS. 45, 47; N.D. CONST., 1889,
ART. 2, SECS. 29, 35; S.D. CONST., 1889, ART. III, SEC. 5; WASH.
CONST., 1889, ART. II, SECS. 3, 6; UTAH CONST., 1895, ART. IX, SECS. 2,
4; N.M. CONST., 1911, ART. IV, FOLLOWING SEC. 41.  THE COLORADO AND
UTAH CONSTITUTIONS PROVIDE FOR REAPPORTIONMENT "ACCORDING TO RATIOS TO
BE FIXED BY LAW" AFTER PERIODIC CENSUS AND ENUMERATION.  IN NEW MEXICO
THE LEGISLATURE IS AUTHORIZED, BUT NOT COMMANDED, TO REAPPORTION
PERIODICALLY.  NORTH DAKOTA DOES NOT IN TERMS DEMAND EQUALITY IN HOUSE
REPRESENTATION; MEMBERS ARE TO BE ASSIGNED AMONG THE SEVERAL SENATORIAL
DISTRICTS, WHICH ARE OF EQUAL POPULATION. 

FN118  WYO. CONST., 1889, ART. III, LEGISLATIVE DEPARTMENT, SEC. 3;
ART. III, APPORTIONMENT, SECS. 2, 3. 

FN119  IDAHO CONST., 1889, ART. III, SEC. 4. 

FN120  OKLA. CONST., 1907, ART. V, SEC. 10(B) TO (J).  SEE ART. V,
SECS. 9(A), 9(B) FOR SENATE APPORTIONMENT BASED ON NUMBERS. 

FN121  MONT. CONST., 1889, ART. VI, SECS. 2, 3. 

FN122  MONT. CONST., 1889, ART. V, SEC. 4; ART. VI, SEC. 4.  THE
EFFECTIVE PROVISIONS ARE, FIRST, THAT THERE SHALL BE NO MORE THAN ONE
SENATOR FROM EACH COUNTY, AND, SECOND, THAT NO SENATORIAL DISTRICT
SHALL CONSIST OF MORE THAN ONE COUNTY. 

FN123  ALASKA CONST., 1956, ART. VI, SEC. 7; ART. XIV, SEC. 2.  THE
EXACT BOUNDARIES OF THE DISTRICTS MAY BE MODIFIED TO CONFORM TO CHANGES
IN HOUSE DISTRICTS, BUT THEIR NUMBERS OF SENATORS AND THEIR APPROXIMATE
PERIMETERS ARE TO BE PRESERVED. 

FN124  HAWAII CONST., 1950, ART. III, SEC. 2. 

FN125  ALASKA CONST., 1956, ART. VI, SECS. 3, 4, 6.  THE METHOD OF
EQUAL PROPORTIONS IS USED. 

FN126  HAWAII CONST., 1950, ART. III, SEC. 4.  THE METHOD OF EQUAL
PROPORTIONS IS USED, AND, FOR SUB-APPORTIONMENT WITHIN THE FOUR "BASIC"
AREAS, A FORM OF MOIETY RULE OBTAINS. 

FN127  ARIZ. CONST., 1910, ART. IV, PT. 2, SEC. 1.  ON THE BASIS OF
1910 CENSUS FIGURES, THIS APPORTIONMENT YIELDED, FOR EXAMPLE, A
SENATORIAL-RATIO DIFFERENTIAL OF MORE THAN FOUR TO ONE BETWEEN MOHAVE
AND COCHISE OR BETWEEN MOHAVE AND MARICOPA COUNTIES.  II THIRTEENTH
CENSUS OF THE UNITED STATES (1910), 71-73. 

FN128  THE PERTINENT STATE CONSTITUTIONAL PROVISIONS ARE SET FORTH IN
TABULAR FORM IN XIII BOOK OF THE STATES (1960-1961), 54-58; AND
GREENFIELD, FORD AND EMERY, LEGISLATIVE REAPPORTIONMENT: CALIFORNIA IN
NATIONAL PERSPECTIVE (UNIVERSITY OF CALIFORNIA, BERKELEY, 1959), 81
85.  AN EARLIER TREATMENT NOW OUTDATED IN SEVERAL RESPECTS BUT STILL
USEFUL IS DURFEE, SUPRA, NOTE 114.  SEE DISCUSSIONS IN HARVEY, SUPRA,
NOTE 114; SHULL, POLITICAL AND PARTISAN IMPLICATIONS OF STATE
LEGISLATIVE APPORTIONMENT, 17 LAW & CONTEMP.  PROB.  417, 418-421
(1952). 

FN129  NEBRASKA'S UNICAMERAL LEGISLATURE IS INCLUDED IN THIS COUNT. 

FN130  GREENFIELD, FORD AND EMERY, SUPRA, NOTE 128, AT 7. 

FN131  HARVEY, SUPRA, NOTE 114, AT 367.  SEE TABOR, THE
GERRYMANDERING OF STATE AND FEDERAL LEGISLATIVE DISTRICTS, 16 MD. L.
REV. 277, 282-283 (1956). 

FN132  SEE, E.G., MATHER AND RAY, THE IOWA SENATORIAL DISTRICTS CAN
BE REAPPORTIONED - A POSSIBLE PLAN, 39 IOWA L. REV. 535, 536-537
(1954). 

FN133 SEE, E.G., WALTER, REAPPORTIONMENT AND URBAN REPRESENTATION,
195 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 11,
12-13 (1938); BONE, SUPRA, NOTE 87.  LEGISLATIVE INACTION AND STATE
CONSTITUTIONAL PROVISIONS REJECTING THE PRINCIPLE OF EQUAL NUMBERS HAVE
BOTH CONTRIBUTED TO THE GENERALLY PREVAILING NUMERICAL INEQUALITY OF
REPRESENTATION IN THIS COUNTRY.  COMPARE WALTER, SUPRA, WITH BAKER, ONE
VOTE, ONE VALUE, 47 NAT. MUN.  REV.  16, 18 (1958). 

FN134  SEE, E.G., GRIFFITH 116-117; LUCE 364-367, 370; MERRIAM,
AMERICAN POLITICAL IDEAS (1929), 244-245; LEGISLATION, APPORTIONMENT OF
THE NEW YORK STATE SENATE, 31 ST. JOHN'S L. REV. 335, 341-342 (1957). 

FN135  IN 1947, THE BOUNDARY COMMISSION FOR ENGLAND, "  ...
IMPRESSED BY THE ADVANTAGES OF ACCESSIBILITY (THAT LARGE COMPACT URBAN
REGIONS)  ...  ENJOY OVER WIDELY SCATTERED RURAL AREAS  ... CAME TO THE
CONCLUSION THAT THEY COULD CONVENIENTLY SUPPORT ELECTORATES IN EXCESS
OF THE ELECTORAL QUOTA, AND WOULD IN THE MAJORITY OF CASES PREFER TO DO
SO RATHER THAN SUFFER SEVERANCE OF LOCAL UNITY FOR PARLIAMENTARY
PURPOSES" - THAT "IN GENERAL URBAN CONSTITUENCIES COULD MORE
CONVENIENTLY SUPPORT LARGE ELECTORATES THAN RURAL CONSTITUENCIES  ...
."  INITIAL REPORT OF THE BOUNDARY COMMISSION FOR ENGLAND (CMD. 
7260)(1947), 5.  SEE ALSO MACKENZIE 110-111; DE GRAZIA, GENERAL THEORY
OF APPORTIONMENT, 17 LAW & CONTEMP.  PROB.  256, 261-262 (1952). 

FN136  SEE WALTER, SUPRA, NOTE 133; WALTER, REAPPORTIONMENT OF STATE
LEGISLATIVE DISTRICTS, 37 ILL. L. REV. 20, 37-38 (1942).  THE URBAN
RURAL CONFLICT IS OFTEN THE CORE OF APPORTIONMENT CONTROVERSY.  SEE
DURFEE, SUPRA, NOTE 114, AT 1093-1094; SHORT, SUPRA, NOTE 114, AT 381. 
FN137  BAKER, RURAL VERSUS URBAN POLITICAL POWER (1955), 11-19;
MACNEIL, URBAN REPRESENTATION IN STATE LEGISLATURES, 18 STATE
GOVERNMENT 59 (1945); UNITED STATES CONFERENCE OF MAYORS, GOVERNMENT OF
THE PEOPLE, BY THE PEOPLE, FOR THE PEOPLE (CA. 1947). 

FN138  SEE, IN ADDITION TO THE AUTHORITIES CITED IN NOTES 130, 131,
136 AND 137, SUPRA, AND 140 TO 144, INFRA, (ALL CONTAINING OTHER
EXAMPLES THAN THOSE REMARKED IN TEXT), HURST, THE GROWTH OF AMERICAN
LAW, THE LAW MAKERS (1950), 41-42; AMERICAN POLITICAL SCIENCE ASSN.,
COMMITTEE ON AMERICAN LEGISLATURES, AMERICAN STATE LEGISLATURES (ZELLER
ED. 1954), 34-35; GOSNELL, DEMOCRACY, THE THRESHOLD OF FREEDOM (1948),
179-181; LEWIS, LEGISLATIVE APPORTIONMENT AND THE FEDERAL COURTS, 71
HARV. L. REV. 1057, 1059-1064 (1958); FRIEDMAN, REAPPORTIONMENT MYTH,
49 NAT. CIV. REV. 184, 185-186 (1960); 106 CONG. REC. 14901-14916
(REMARKS OF SENATOR CLARK AND SUPPORTING MATERIALS); H.R. REP. NO.
2533, 85TH CONG., 2D SESS. 24; H.R. DOC.  NO. 198, 84TH CONG., 1ST
SESS. 38-40; HADWIGER, REPRESENTATION IN THE MISSOURI GENERAL ASSEMBLY,
24 MO. L. REV. 178, 180-181 (1959); HAMILTON, BEARDSLEY AND COATS,
LEGISLATIVE REAPPORTIONMENT IN INDIANA:  SOME OBSERVATIONS AND A
SUGGESTION, 35 NOTRE DAME LAW.  368-370 (1960); CORTER, PENNSYLVANIA
PONDERS APPORTIONMENT, 32 TEMPLE L.Q. 279, 283-288 (1959).  CONCERNING
THE CLASSICAL GERRYMANDER, SEE GRIFFITH, PASSIM; LUCE 395-404; BROOKS,
POLITICAL PARTIES AND ELECTORAL PROBLEMS (3D ED. 1933), 472-481.  FOR
FOREIGN EXAMPLES OF NUMERICAL DISPROPORTION, SEE HOGAN, ELECTION AND
REPRESENTATION (1945), 95; FINER, THEORY AND PRACTICE OF MODERN
GOVERNMENT (REV. ED. 1949), 551-552. 

FN139  BAKER, SUPRA, NOTE 137, AT 11.  RECENT NEW JERSEY LEGISLATION
PROVIDES FOR REAPPORTIONMENT OF THE STATE'S LOWER HOUSE BY EXECUTIVE
ACTION FOLLOWING EACH UNITED STATES CENSUS SUBSEQUENT TO THAT OF 1960. 
N.J. LAWS 1961, C. 1.  THE APPORTIONMENT IS TO BE MADE ON THE BASIS OF
POPULATION, SAVE THAT EACH COUNTY IS ASSURED AT LEAST ONE HOUSE SEAT. 
IN THE STATE'S SENATE, HOWEVER, BY CONSTITUTIONAL COMMAND, EACH COUNTY
ELECTS A SINGLE SENATOR, REGARDLESS OF POPULATION.  N.J. CONST., 1947,
ART. IV, SEC. II, PAR. 1. 

FN140  NOTE, 42 MINN. L. REV. 617, 618-619 (1958). 

FN141  GREENFIELD, FORD AND EMERY, SUPRA, NOTE 128, AT 3. 

FN142  UNIVERSITY OF OKLAHOMA, BUREAU OF GOVERNMENT RESEARCH, THE
APPORTIONMENT PROBLEM IN OKLAHOMA (1959), 16-29. 

FN143  1 LABOR'S ECONOMIC REV. 89, 96 (1956). 

FN144  DAUER AND KELSAY, UNREPRESENTATIVE STATES, 44 NAT. MUN.  REV. 
571, 572, 574 (1955). 

FN145 SEE THE SECOND SCHEDULE TO THE HOUSE OF COMMONS (REDISTRIBUTION
OF SEATS) ACT, 1949, 12 & 13 GEO. VI, C. 66, AS AMENDED BY THE HOUSE OF
COMMONS (REDISTRIBUTION OF SEATS) ACT, 1958, 6 & 7 ELIX.  II, C. 26,
SEC. 2, AND THE ENGLISH EXPERIENCE DESCRIBED IN TEXT AT NOTES 50 TO 61,
SUPRA.  SEE ALSO THE REPORT OF THE ASSEMBLY INTERIM COMMITTEE ON
ELECTIONS AND REAPPORTIONMENT, CALIFORNIA ASSEMBLY (1951)(HEREAFTER,
CALIFORNIA COMMITTEE REPORT), 37:  "THE GEOGRAPHIC - THE SOCIO-ECONOMIC
- THE DESIRES OF THE PEOPLE - THE DESIRES OF THE ELECTED OFFICEHOLDERS
THE DESIRES OF POLITICAL PARTIES - ALL THESE CAN AND DO LEGITIMATELY
OPERATE NOT ONLY WITHIN THE FRAMEWORK OF THE 'RELATIVELY EQUAL IN
POPULATION DISTRICTS' FACTOR, BUT ALSO WITHIN THE FACTORS OF CONTIGUITY
AND COMPACTNESS.  THE COUNTY AND ASSEMBLY LINE LEGAL RESTRICTIONS
OPERATE OUTSIDE THE FRAMEWORK OF THEORETICALLY 'EQUAL IN POPULATION
DISTRICTS.'  ALL THE FACTORS MIGHT CONCEIVABLY HAVE THE SAME WEIGHT IN
ONE SITUATION; IN ANOTHER, SOME FACTORS MIGHT BE CONSIDERABLY MORE
IMPORTANT THAN OTHERS IN MAKING THE FINAL DETERMINATION."  A VIRGINIA
LEGISLATIVE COMMITTEE ADVERTED TO "  ...  MANY DIFFICULTIES SUCH AS
NATURAL TOPOGRAPHICAL BARRIERS, DIVERGENT BUSINESS AND SOCIAL
INTERESTS, LACK OF COMMUNICATION BY RAIL OR HIGHWAY, AND
DISINCLINATIONS OF COMMUNITIES TO BREAKING UP POLITICAL TIES OF LONG
STANDING, RESULTING IN SOME CASES OF DISTRICTS REQUESTING TO REMAIN
WITH POPULATIONS MORE THAN THEIR AVERAGES RATHER THAN HAVE THEIR EQUAL
REPRESENTATION WITH THE CHANGED CONDITIONS."  REPORT OF THE JOINT
COMMITTEE ON THE RE-APPORTIONMENT OF THE STATE INTO SENATORIAL AND
HOUSE DISTRICTS, VIRGINIA GENERAL ASSEMBLY, HOUSE OF DELEGATES, H. DOC.
NO. 9 (1922), 1-2.  AND THE TENNESSEE STATE PLANNING COMMISSION,
CONCERNING THE PROBLEM OF CONGRESSIONAL REDISTRICTING IN 1950, SPOKE OF
A "TRADITION (WHICH) RELATES TO THE SENSE OF BELONGING - LOYALTIES TO
GROUPS AND ITEMS OF COMMON INTEREST WITH FRIENDS AND FELLOW CITIZENS OF
LIKE CIRCUMSTANCE, ENVIRONMENT OR REGION."  TENNESSEE STATE PLANNING
COMMISSION, PUB. NO. 222, REDISTRICTING FOR CONGRESS (1950), FIRST
PAGE. 

FN146  SEE, E.G., CALIFORNIA COMMITTEE REPORT, AT 52. 

"  ...  THE REAPPORTIONMENT PROCESS IS, BY ITS VERY NATURE, POLITICAL
...  .  THERE WILL BE POLITICS IN REAPPORTIONMENT AS LONG AS A
REPRESENTATIVE FORM OF GOVERNMENT EXISTS  ...  . 

"IT IS IMPOSSIBLE TO DRAW A DISTRICT BOUNDARY LINE WITHOUT THAT
LINE'S HAVING SOME POLITICAL SIGNIFICANCE  ...  ." 

FN147  SEE, E.G., CELLER, CONGRESSIONAL APPORTIONMENT - PAST,
PRESENT, AND FUTURE, 17 LAW & CONTEMP.  PROB.  268 (1952), SPEAKING OF
THE HISTORY OF CONGRESSIONAL APPORTIONMENT: 

"  ...  A MERE READING OF THE DEBATES (FROM THE CONSTITUTIONAL
CONVENTION DOWN TO CONTEMPORARY CONGRESSES) ON THIS QUESTION OF
APPORTIONMENT REVEALS THE CONFLICTING INTERESTS OF THE LARGE AND SMALL
STATES AND THE EXTENT TO WHICH PARTISAN POLITICS PERMEATES THE ENTIRE
PROBLEM." 

FN148  SEE STANDARDS FOR CONGRESSIONAL DISTRICTS (APPORTIONMENT),
HEARINGS BEFORE SUBCOMMITTEE NO. 2 OF THE COMMITTEE ON THE JUDICIARY,
HOUSE OF REPRESENTATIVES, 86TH CONG., 1ST SESS. 23, CONCERNING A
PROPOSED PROVISION FOR JUDICIAL ENFORCEMENT OF CERTAIN STANDARDS IN THE
LAYING OUT OF DISTRICTS: 

"MR. KASEM.  YOU DO NOT THINK THAT (A PROVISION EMBODYING THE
LANGUAGE:  'IN AS COMPACT FORM AS PRACTICABLE') MIGHT RESULT IN A
DECISION DEPENDING UPON THE POLITICAL INCLINATIONS OF THE JUDGE? 

"MR. CELLER.  ARE YOU IMPUGNING THE INTEGRITY OF OUR FEDERAL
JUDICIARY? 

"MR. KASEM.  NO; I JUST RECOGNIZE THEIR HUMAN FRAILTIES." 

FOR AN INSTANCE OF A COURT TORN, IN FACT OR FANCY, OVER THE POLITICAL
ISSUES INVOLVED IN REAPPORTIONMENT, SEE STATE EX REL. LASHLY V. BECKER,
290 MO. 560, 235 S.W. 1017, AND ESPECIALLY THE DISSENTING OPINION OF
HIGBEE, J., 290 MO., AT 613, 235 S.W., AT 1037. 

FN149  SEE TEXT AT NOTES 139-143, SUPRA. 

FN150  DECISIONS OF STATE COURTS WHICH HAVE ENTERTAINED APPORTIONMENT
CASES UNDER THEIR RESPECTIVE STATE CONSTITUTIONS DO NOT, OF COURSE,
INVOLVE THE VERY DIFFERENT CONSIDERATIONS RELEVANT TO FEDERAL JUDICIAL
INTERVENTION.  STATE-COURT ADJUDICATION DOES NOT INVOLVE THE DELICATE
PROBLEMS OF FEDERAL-STATE RELATIONS WHICH WOULD INHERE IN THE EXERCISE
OF FEDERAL JUDICIAL POWER TO IMPOSE RESTRICTIONS UPON THE STATES'
SHAPING OF THEIR OWN GOVERNMENTAL INSTITUTIONS.  MOREOVER, STATE
CONSTITUTIONS GENERALLY SPEAK WITH A SPECIFICITY TOTALLY LACKING IN
ATTEMPTED UTILIZATION OF THE GENERALITIES OF THE FOURTEENTH AMENDMENT
TO APPORTIONMENT MATTERS.  SOME EXPRESSLY COMMIT APPORTIONMENT TO STATE
JUDICIAL REVIEW, SEE, E.G., N.Y. CONST., 1938, ART. III, SEC. 5, AND
EVEN WHERE THEY DO NOT, THEY DO PRECISELY FIX THE CRITERIA FOR JUDICIAL
JUDGMENT RESPECTING THE ALLOCATION OF REPRESENTATIVE STRENGTH WITHIN
THE ELECTORATE.  SEE, E.G., ASBURY PARK PRESS.  INC., V. WOOLLEY, 33
N.J. 1, 161 A.2D 705. 

FN151  APPELLANTS' SUGGESTION THAT, ALTHOUGH NO RELIEF MAY NEED BE
GIVEN, JURISDICTION OUGHT TO BE RETAINED AS A "SPUR" TO LEGISLATIVE
ACTION DOES NOT MERIT DISCUSSION. 

FN152  SEE NOTE 24, SUPRA. 

DISSENTING OPINION OF MR. JUSTICE HARLAN, WHOM MR. JUSTICE
FRANKFURTER JOINS. 

THE DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, IN WHICH I JOIN,
DEMONSTRATES THE ABRUPT DEPARTURE THE MAJORITY MAKES FROM JUDICIAL
HISTORY BY PUTTING THE FEDERAL COURTS INTO THIS AREA OF STATE CONCERNS
AN AREA WHICH, IN THIS INSTANCE, THE TENNESSEE STATE COURTS THEMSELVES
HAVE REFUSED TO ENTER. 

IT DOES NOT DETRACT FROM HIS OPINION TO SAY THAT THE PANORAMA OF
JUDICIAL HISTORY IT UNFOLDS, THOUGH EVINCING A STEADFAST UNDERLYING
PRINCIPLE OF KEEPING THE FEDERAL COURTS OUT OF THESE DOMAINS, HAS A
TENDENCY, BECAUSE OF VARIANTS IN EXPRESSION, TO BECLOUD ANALYSIS IN A
GIVEN CASE.  WITH DUE RESPECT TO THE MAJORITY, I THINK THAT HAS
HAPPENED HERE. 

ONCE ONE CUTS THROUGH THE THICKET OF DISCUSSION DEVOTED TO
"JURISDICTION," "STANDING," "JUSTICIABILITY," AND "POLITICAL QUESTION,"
THERE EMERGES A STRAIGHTFORWARD ISSUE WHICH, IN MY VIEW, IS
DETERMINATIVE OF THIS CASE.  DOES THE COMPLAINT DISCLOSE A VIOLATION OF
A FEDERAL CONSTITUTIONAL RIGHT, IN OTHER WORDS, A CLAIM OVER WHICH A
UNITED STATES DISTRICT COURT WOULD HAVE JURISDICTION UNDER 28 U.S.C.
SEC. 1343(3) AND 42 U.S.C.  SEC. 1983?  THE MAJORITY OPINION DOES NOT
ACTUALLY DISCUSS THIS BASIC QUESTION, BUT, AS ONE CONCURRING JUSTICE
OBSERVES, SEEMS TO DECIDE IT "SUB SILENTIO."  ANTE, P. 261.  HOWEVER,
IN MY OPINION, APPELLANTS' ALLEGATIONS, ACCEPTING ALL OF THEM AS TRUE,
DO NOT, PARSED DOWN OR AS A WHOLE, SHOW AN INFRINGEMENT BY TENNESSEE OF
ANY RIGHTS ASSURED BY THE FOURTEENTH AMENDMENT.  ACCORDINGLY, I BELIEVE
THE COMPLAINT SHOULD HAVE BEEN DISMISSED FOR "FAILURE TO STATE A CLAIM
UPON WHICH RELIEF CAN BE GRANTED."  FED. RULES CIV. PROC., RULE
12(B)(6). 

IT IS AT ONCE ESSENTIAL TO RECOGNIZE THIS CASE FOR WHAT IT IS.  THE
ISSUE HERE RELATES NOT TO A METHOD OF STATE ELECTORAL APPORTIONMENT BY
WHICH SEATS IN THE FEDERAL HOUSE OF REPRESENTATIVES ARE ALLOCATED, BUT
SOLELY TO THE RIGHT OF A STATE TO FIX THE BASIS OF REPRESENTATION IN
ITS OWN LEGISLATURE.  UNTIL IT IS FIRST DECIDED TO WHAT EXTENT THAT
RIGHT IS LIMITED BY THE FEDERAL CONSTITUTION, AND WHETHER WHAT
TENNESSEE HAS DONE OR FAILED TO DO IN THIS INSTANCE RUNS AFOUL OF ANY
SUCH LIMITATION, WE NEED NOT REACH THE ISSUES OF "JUSTICIABILITY" OR
"POLITICAL QUESTION" OR ANY OF THE OTHER CONSIDERATIONS WHICH IN SUCH
CASES AS COLEGROVE V. GREEN, 328 U.S. 549, LED THE COURT TO DECLINE TO
ADJUDICATE A CHALLENGE TO A STATE APPORTIONMENT AFFECTING SEATS IN THE
FEDERAL HOUSE OF REPRESENTATIVES, IN THE ABSENCE OF A CONTROLLING ACT
OF CONGRESS.  SEE ALSO WOOD V. BROOM, 287 U.S. 1. 

THE APPELLANTS' CLAIM IN THIS CASE ULTIMATELY RESTS ENTIRELY ON THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  IT IS ASSERTED
THAT TENNESSEE HAS VIOLATED THE EQUAL PROTECTION CLAUSE BY MAINTAINING
IN EFFECT A SYSTEM OF APPORTIONMENT THAT GROSSLY FAVORS IN LEGISLATIVE
REPRESENTATION THE RURAL SECTIONS OF THE STATE AS AGAINST ITS URBAN
COMMUNITIES.  STRIPPED TO ITS ESSENTIALS THE COMPLAINT PURPORTS TO SET
FORTH THREE CONSTITUTIONAL CLAIMS OF VARYING BREADTH: 

(1)  THE EQUAL PROTECTION CLAUSE REQUIRES THAT EACH VOTE CAST IN
STATE LEGISLATIVE ELECTIONS BE GIVEN APPROXIMATELY EQUAL WEIGHT. 

(2)  SHORT OF THIS, THE EXISTING APPORTIONMENT OF STATE LEGISLATORS
IS SO UNREASONABLE AS TO AMOUNT TO AN ARBITRARY AND CAPRICIOUS ACT OF
CLASSIFICATION ON THE PART OF THE TENNESSEE LEGISLATURE, WHICH IS
OFFENSIVE TO THE EQUAL PROTECTION CLAUSE. 

(3) IN ANY EVENT, THE EXISTING APPORTIONMENT IS RENDERED INVALID
UNDER THE FOURTEENTH AMENDMENT BECAUSE IT FLIES IN THE FACE OF THE
TENNESSEE CONSTITUTION. 

FOR REASONS GIVEN IN MR. JUSTICE FRANKFURTER'S OPINION, ANTE, PP. 325
327, THE LAST OF THESE PROPOSITIONS IS MANIFESTLY UNTENABLE, AND NEED
NOT BE DEALT WITH FURTHER.  I TURN TO THE OTHER TWO. 

                    I. 

I CAN FIND NOTHING IN THE EQUAL PROTECTION CLAUSE OR ELSEWHERE IN THE
FEDERAL CONSTITUTION WHICH EXPRESSLY OR IMPLIEDLY SUPPORTS THE VIEW
THAT STATE LEGISLATURES MUST BE SO STRUCTURED AS TO REFLECT WITH
APPROXIMATE EQUALITY THE VOICE OF EVERY VOTER.  NOT ONLY IS THAT
PROPOSITION REFUTED BY HISTORY, AS SHOWN BY MY BROTHER FRANKFURTER, BUT
IT STRIKES DEEP INTO THE HEART OF OUR FEDERAL SYSTEM.  ITS ACCEPTANCE
WOULD REQUIRE US TO TURN OUR BACKS ON THE REGARD WHICH THIS COURT HAS
ALWAYS SHOWN FOR THE JUDGMENT OF STATE LEGISLATURES AND COURTS ON
MATTERS OF BASICALLY LOCAL CONCERN. 

IN THE LAST ANALYSIS, WHAT LIES AT THE CORE OF THIS CONTROVERSY IS A
DIFFERENCE OF OPINION AS TO THE FUNCTION OF REPRESENTATIVE GOVERNMENT. 
IT IS SURELY BEYOND ARGUMENT THAT THOSE WHO HAVE THE RESPONSIBILITY FOR
DEVISING A SYSTEM OF REPRESENTATION MAY PERMISSIBLY CONSIDER THAT
FACTORS OTHER THAN BARE NUMBERS SHOULD BE TAKEN INTO ACCOUNT.  THE
EXISTENCE OF THE UNITED STATES SENATE IS PROOF ENOUGH OF THAT.  TO
CONSIDER THAT WE MAY IGNORE THE TENNESSEE LEGISLATURE'S JUDGMENT IN
THIS INSTANCE BECAUSE THAT BODY WAS THE PRODUCT OF AN ASYMMETRICAL
ELECTORAL APPORTIONMENT WOULD IN EFFECT BE TO ASSUME THE VERY
CONCLUSION HERE DISPUTED.  HENCE WE MUST ACCEPT THE PRESENT FORM OF THE
TENNESSEE LEGISLATURE AS THE EMBODIMENT OF THE STATE'S CHOICE, OR, MORE
REALISTICALLY, ITS COMPROMISE, BETWEEN COMPETING POLITICAL
PHILOSOPHIES.  THE FEDERAL COURTS HAVE NOT BEEN EMPOWERED BY THE EQUAL
PROTECTION CLAUSE TO JUDGE WHETHER THIS RESOLUTION OF THE STATE'S
INTERNAL POLITICAL CONFLICT IS DESIRABLE OR UNDESIRABLE, WISE OR
UNWISE. 

WITH RESPECT TO STATE TAX STATUTES AND REGULATORY MEASURES, FOR
EXAMPLE, IT HAS BEEN SAID THAT THE "DAY IS GONE WHEN THIS COURT USES
THE  ...  FOURTEENTH AMENDMENT TO STRIKE DOWN STATE LAWS  ... BECAUSE
THEY MAY BE UNWISE, IMPROVIDENT, OR OUT OF HARMONY WITH A PARTICULAR
SCHOOL OF THOUGHT."  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 488. 
I WOULD THINK IT ALL THE MORE COMPELLING FOR US TO FOLLOW THIS
PRINCIPLE OF SELF-RESTRAINT WHEN WHAT IS INVOLVED IS THE FREEDOM OF A
STATE TO DEAL WITH SO INTIMATE A CONCERN AS THE STRUCTURE OF ITS OWN
LEGISLATIVE BRANCH.  THE FEDERAL CONSTITUTION IMPOSES NO LIMITATION ON
THE FORM WHICH A STATE GOVERNMENT MAY TAKE OTHER THAN GENERALLY
COMMITTING TO THE UNITED STATES THE DUTY TO GUARANTEE TO EVERY STATE "A
REPUBLICAN FORM OF GOVERNMENT."  AND, AS MY BROTHER FRANKFURTER SO
CONCLUSIVELY PROVES (ANTE, PP. 308-317), NO INTENTION TO FIX IMMUTABLY
THE MEANS OF SELECTING REPRESENTATIVES FOR STATE GOVERNMENTS COULD HAVE
BEEN IN THE MINDS OF EITHER THE FOUNDERS OR THE DRAFTSMEN OF THE
FOURTEENTH AMENDMENT.    IN SHORT, THERE IS NOTHING IN THE FEDERAL
CONSTITUTION TO PREVENT A STATE, ACTING NOT IRRATIONALLY, FROM CHOOSING
ANY ELECTORAL LEGISLATIVE STRUCTURE IT THINKS BEST SUITED TO THE
INTERESTS, TEMPER, AND CUSTOMS OF ITS PEOPLE.  I WOULD HAVE THOUGHT
THIS PROPOSITION SETTLED BY MACDOUGALL V. GREEN, 335 U.S. 281, IN WHICH
THE COURT OBSERVED (AT P. 283) THAT TO "ASSUME THAT POLITICAL POWER IS
A FUNCTION EXCLUSIVELY OF NUMBERS IS TO DISREGARD THE PRACTICALITIES OF
GOVERNMENT," AND REAFFIRMED BY SOUTH V. PETERS, 339 U.S. 276.  A
STATE'S CHOICE TO DISTRIBUTE ELECTORAL STRENGTH AMONG GEOGRAPHICAL
UNITS, RATHER THAN ACCORDING TO A CENSUS OF POPULATION, IS CERTAINLY NO
LESS A RATIONAL DECISION OF POLICY THAN WOULD BE ITS CHOICE TO LEVY A
TAX ON PROPERTY RATHER THAN A TAX ON INCOME.  BOTH ARE LEGISLATIVE
JUDGMENTS ENTITLED TO EQUAL RESPECT FROM THIS COURT. 

                        II. 

THE CLAIM THAT TENNESSEE'S SYSTEM OF APPORTIONMENT IS SO UNREASONABLE
AS TO AMOUNT TO A CAPRICIOUS CLASSIFICATION OF VOTING STRENGTH STANDS
UP NO BETTER UNDER DISPASSIONATE ANALYSIS. 

THE COURT HAS SAID TIME AND AGAIN THAT THE EQUAL PROTECTION CLAUSE
DOES NOT DEMAND OF STATE ENACTMENTS EITHER MATHEMATICAL IDENTITY OR
RIGID EQUALITY.  E.G., ALLIED STORES OF OHIO V. BOWERS, 358 U.S. 522,
527-528, AND AUTHORITIES THERE CITED; MCGOWAN V. MARYLAND, 366 U.S.
420, 425-426.  ALL THAT IS PROHIBITED IS "INVIDIOUS DISCRIMINATION"
BEARING NO RATIONAL RELATION TO ANY PERMISSIBLE POLICY OF THE STATE. 
WILLIAMSON V. LEE OPTICAL CO., SUPRA, AT 489.  AND IN DECIDING WHETHER
SUCH DISCRIMINATION HAS BEEN PRACTICED BY A STATE, IT MUST BE BORNE IN
MIND THAT A "STATUTORY DISCRIMINATION WILL NOT BE SET ASIDE IF ANY
STATE OF FACTS REASONABLY MAY BE CONCEIVED TO JUSTIFY IT."  MCGOWAN V.
MARYLAND, SUPRA.  IT IS NOT INEQUALITY ALONE THAT CALLS FOR A HOLDING
OF UNCONSTITUTIONALITY; ONLY IF THE INEQUALITY IS BASED ON AN
IMPERMISSIBLE STANDARD MAY THIS COURT CONDEMN IT. 

WHAT THEN IS THE BASIS FOR THE CLAIM MADE IN THIS CASE THAT THE
DISTRIBUTION OF STATE SENATORS AND REPRESENTATIVES IS THE PRODUCT OF
CAPRICIOUSNESS OR OF SOME CONSTITUTIONALLY PROHIBITED POLICY?  IT IS
NOT THAT TENNESSEE HAS ARRANGED ITS ELECTORAL DISTRICTS WITH A
DELIBERATE PURPOSE TO DILUTE THE VOTING STRENGTH OF ONE RACE, CF.
GOMILLION V. LIGHTFOOT, 364 U.S. 339, OR THAT SOME RELIGIOUS GROUP IS
INTENTIONALLY UNDERREPRESENTED.  NOR IS IT A CHARGE THAT THE
LEGISLATURE HAS INDULGED IN SHEER CAPRICE BY ALLOTTING REPRESENTATIVES
TO EACH COUNTY ON THE BASIS OF A THROW OF THE DICE, OR OF SOME OTHER
DETERMINANT BEARING NO RATIONAL RELATION TO THE QUESTION OF
APPORTIONMENT.  RATHER, THE CLAIM IS THAT THE STATE LEGISLATURE HAS
UNREASONABLY RETAINED SUBSTANTIALLY THE SAME ALLOCATION OF SENATORS AND
REPRESENTATIVES AS WAS ESTABLISHED BY STATUTE IN 1901, REFUSING TO
RECOGNIZE THE GREAT SHIFT IN THE POPULATION BALANCE BETWEEN URBAN AND
RURAL COMMUNITIES THAT HAS OCCURRED IN THE MEANTIME. 

IT IS FURTHER ALLEGED THAT EVEN AS OF 1901 THE APPORTIONMENT WAS
INVALID, IN THAT IT DID NOT ALLOCATE STATE LEGISLATORS AMONG THE
COUNTIES IN ACCORDANCE WITH THE FORMULA SET OUT IN ART. II, SEC. 5, OF
THE TENNESSEE CONSTITUTION.  IN SUPPORT OF THIS THE APPELLANTS HAVE
FURNISHED A TABLE WHICH INDICATES THAT AS OF 1901 SIX COUNTIES WERE
OVERREPRESENTED AND 11 WERE UNDERREPRESENTED.  BUT THAT TABLE IN FACT
SHOWS NOTHING IN THE WAY OF SIGNIFICANT DISCREPANCY; IN THE INSTANCE OF
EACH COUNTY IT IS ONLY ONE REPRESENTATIVE WHO IS EITHER LACKING OR
ADDED.  AND IT IS FURTHER PERFECTLY EVIDENT THAT THE VARIATIONS ARE
ATTRIBUTABLE TO NOTHING MORE THAN THE CIRCUMSTANCE THAT THE THEN
ENUMERATION OF VOTERS RESULTED IN FRACTIONAL REMAINDERS WITH RESPECT TO
WHICH THE PRECISE FORMULA OF THE TENNESSEE CONSTITUTION WAS IN SOME
INSTANCES SLIGHTLY DISREGARDED.  UNLESS SUCH DE MINIMIS DEPARTURES ARE
TO BE DEEMED OF SIGNIFICANCE, THESE STATISTICS CERTAINLY PROVIDE NO
SUBSTANTIATION FOR THE CHARGE THAT THE 1901 APPORTIONMENT WAS ARBITRARY
AND CAPRICIOUS.  INDEED, THEY SHOW THE CONTRARY. 

THUS REDUCED TO ITS ESSENTIALS, THE CHARGE OF ARBITRARINESS AND
CAPRICIOUSNESS RESTS ENTIRELY ON THE CONSISTENT REFUSAL OF THE
TENNESSEE LEGISLATURE OVER THE PAST 60 YEARS TO ALTER A PATTERN OF
APPORTIONMENT THAT WAS REASONABLE WHEN CONCEIVED. 

A FEDERAL DISTRICT COURT IS ASKED TO SAY THAT THE PASSAGE OF TIME HAS
RENDERED THE 1901 APPORTIONMENT OBSOLETE TO THE POINT WHERE ITS
CONTINUANCE BECOMES VULNERABLE UNDER THE FOURTEENTH AMENDMENT.  BUT IS
NOT THIS MATTER ONE THAT INVOLVES A CLASSIC LEGISLATIVE JUDGMENT? 
SURELY IT LIES WITHIN THE PROVINCE OF A STATE LEGISLATURE TO CONCLUDE
THAT AN EXISTING ALLOCATION OF SENATORS AND REPRESENTATIVES CONSTITUTES
A DESIRABLE BALANCE OF GEOGRAPHICAL AND DEMOGRAPHICAL REPRESENTATION,
OR THAT IN THE INTEREST OF STABILITY OF GOVERNMENT IT WOULD BE BEST TO
DEFER FOR SOME FURTHER TIME THE REDISTRIBUTION OF SEATS IN THE STATE
LEGISLATURE. 

INDEED, I WOULD HARDLY THINK IT UNCONSTITUTIONAL IF A STATE
LEGISLATURE'S EXPRESSED REASON FOR ESTABLISHING OR MAINTAINING AN
ELECTORAL IMBALANCE BETWEEN ITS RURAL AND URBAN POPULATION WERE TO
PROTECT THE STATE'S AGRICULTURAL INTERESTS FROM THE SHEER WEIGHT OF
NUMBERS OF THOSE RESIDING IN ITS CITIES.  A STATE MAY, AFTER ALL, TAKE
ACCOUNT OF THE INTEREST OF ITS RURAL POPULATION IN THE DISTRIBUTION OF
TAX BURDENS, E.G., AMERICAN SUGAR RFG.  CO. V. LOUISIANA, 179 U.S. 89,
AND RECOGNITION OF THE SPECIAL PROBLEMS OF AGRICULTURAL INTERESTS HAS
REPEATEDLY BEEN REFLECTED IN FEDERAL LEGISLATION, E.G., CAPPER-VOLSTEAD
ACT, 42 STAT. 388; AGRICULTURAL ADJUSTMENT ACT OF 1938, 52 STAT. 31. 
EVEN THE EXEMPTION OF AGRICULTURAL ACTIVITIES FROM STATE CRIMINAL
STATUTES OF OTHERWISE GENERAL APPLICATION HAS NOT BEEN DEEMED OFFENSIVE
TO THE EQUAL PROTECTION CLAUSE.  TIGNER V. TEXAS, 310 U.S. 141.  DOES
THE FOURTEENTH AMENDMENT IMPOSE A STRICTER LIMITATION UPON A STATE'S
APPORTIONMENT OF POLITICAL REPRESENTATIVES TO ITS CENTRAL GOVERNMENT? 
I THINK NOT.  THESE ARE MATTERS OF LOCAL POLICY, ON THE WISDOM OF WHICH
THE FEDERAL JUDICIARY IS NEITHER PERMITTED NOR QUALIFIED TO SIT IN
JUDGMENT. 

THE SUGGESTION OF MY BROTHER FRANKFURTER THAT COURTS LACK STANDARDS
BY WHICH TO DECIDE SUCH CASES AS THIS, IS RELEVANT NOT ONLY TO THE
QUESTION OF "JUSTICIABILITY," BUT ALSO, AND PERHAPS MORE FUNDAMENTALLY,
TO THE DETERMINATION WHETHER ANY COGNIZABLE CONSTITUTIONAL CLAIM HAS
BEEN ASSERTED IN THIS CASE.  COURTS ARE UNABLE TO DECIDE WHEN IT IS
THAT AN APPORTIONMENT ORIGINALLY VALID BECOMES VOID BECAUSE THE FACTORS
ENTERING INTO SUCH A DECISION ARE BASICALLY MATTERS APPROPRIATE ONLY
FOR LEGISLATIVE JUDGMENT.  AND SO LONG AS THERE EXISTS A POSSIBLE
RATIONAL LEGISLATIVE POLICY FOR RETAINING AN EXISTING APPORTIONMENT,
SUCH A LEGISLATIVE DECISION CANNOT BE SAID TO BREACH THE BULWARK
AGAINST ARBITRARINESS AND CAPRICE THAT THE FOURTEENTH AMENDMENT
AFFORDS.  CERTAINLY, WITH ALL DUE RESPECT, THE FACILE ARITHMETICAL
ARGUMENT CONTAINED IN PART II OF MY BROTHER CLARKS' SEPARATE OPINION
(ANTE, PP. 253-258) PROVIDES NO TENABLE BASIS FOR CONSIDERING THAT
THERE HAS BEEN SUCH A BREACH IN THIS INSTANCE.  (SEE THE APPENDIX TO
THIS OPINION.) 

THESE CONCLUSIONS CAN HARDLY BE ESCAPED BY SUGGESTING THAT CAPRICIOUS
STATE ACTION MIGHT BE FOUND WERE IT TO APPEAR THAT A MAJORITY OF THE
TENNESSEE LEGISLATORS, IN REFUSING TO CONSIDER REAPPORTIONMENT, HAD
BEEN ACTUATED BY SELF-INTEREST IN PERPETUATING THEIR OWN POLITICAL
OFFICES OR BY OTHER UNWORTHY OR IMPROPER MOTIVES.  SINCE FLETCHER V.
PECK, 6 CRANCH 87, WAS DECIDED MANY YEARS AGO, IT HAS REPEATEDLY BEEN
POINTED OUT THAT IT IS NOT THE BUSINESS OF THE FEDERAL COURTS TO
INQUIRE INTO THE PERSONAL MOTIVES OF LEGISLATORS.  E.G., ARIZONA V.
CALIFORNIA, 283 U.S. 423, 455 & N. 7.  THE FUNCTION OF THE FEDERAL
JUDICIARY ENDS IN MATTERS OF THIS KIND ONCE IT APPEARS, AS I THINK IT
DOES HERE ON THE UNDISPUTED FACTS, THAT THE STATE ACTION COMPLAINED OF
COULD HAVE RESTED ON SOME RATIONAL BASIS.  (SEE THE APPENDIX TO THIS
OPINION.) 

IT IS MY VIEW THAT THE MAJORITY OPINION HAS FAILED TO POINT TO ANY
RECOGNIZABLE CONSTITUTIONAL CLAIM ALLEGED IN THIS COMPLAINT.  INDEED,
IT IS INTERESTING TO NOTE THAT MY BROTHER STEWART IS AT PAINS TO
DISCLAIM FOR HIMSELF, AND TO POINT OUT THAT THE MAJORITY OPINION DOES
NOT SUGGEST, THAT THE FEDERAL CONSTITUTION REQUIRES OF THE STATES ANY
PARTICULAR KIND OF ELECTORAL APPORTIONMENT, STILL LESS THAT THEY MUST
ACCORD TO EACH VOTER APPROXIMATELY EQUAL VOTING STRENGTH.  CONCURRING
OPINION, ANTE, P. 265.  BUT THAT BEING SO, WHAT, MAY IT BE ASKED, IS
LEFT OF THIS COMPLAINT?  SURELY THE BARE ALLEGATIONS THAT THE EXISTING
TENNESSEE APPORTIONMENT IS "INCORRECT," "ARBITRARY," "OBSOLETE" AND
"UNCONSTITUTIONAL" - AMOUNTING TO NOTHING MORE THAN LEGAL CONCLUSIONS -
DO NOT THEMSELVES SAVE THE COMPLAINT FROM DISMISSAL.  SEE SNOWDEN V.
HUGHES, 321 U.S. 1; COLLINS V. HARDYMAN, 341 U.S. 651.  NOR DO THOSE
ALLEGATIONS SHIFT TO THE APPELLEES THE BURDEN OF PROVING THE
CONSTITUTIONALITY OF THIS STATE STATUTE; AS IS SO CORRECTLY EMPHASIZED
BY MY BROTHER STEWART (ANTE, P. 266), THIS COURT HAS CONSISTENTLY HELD
IN CASES ARISING UNDER THE EQUAL PROTECTION CLAUSE THAT "'THE BURDEN OF
ESTABLISHING THE UNCONSTITUTIONALITY OF A STATUTE RESTS ON HIM WHO
ASSAILS IT.'  METROPOLITAN CASUALTY INS. CO. V. BROWNELL, 294 U.S. 580,
584."  MOREOVER, THE APPELLANTS DO NOT SUGGEST THAT THEY COULD SHOW AT
A TRIAL ANYTHING BEYOND THE MATTERS PREVIOUSLY DISCUSSED IN THIS
OPINION, WHICH ADD UP TO NOTHING IN THE WAY OF A SUPPORTABLE
CONSTITUTIONAL CHALLENGE AGAINST THIS STATUTE.  AND FINALLY, THE
MAJORITY'S FAILURE TO COME TO GRIPS WITH THE QUESTION WHETHER THE
COMPLAINT STATES A CLAIM COGNIZABLE UNDER THE FEDERAL CONSTITUTION - AN
ISSUE NECESSARILY PRESENTED BY APPELLEES' MOTION TO DISMISS - DOES NOT
OF COURSE FURNISH ANY GROUND FOR PERMITTING THIS ACTION TO GO TO
TRIAL. 

FROM A READING OF THE MAJORITY AND CONCURRING OPINIONS ONE WILL NOT
FIND IT DIFFICULT TO CATCH THE PREMISES THAT UNDERLIE THIS DECISION. 
THE FACT THAT THE APPELLANTS HAVE BEEN UNABLE TO OBTAIN POLITICAL
REDRESS OF THEIR ASSERTED GRIEVANCES APPEARS TO BE REGARDED AS A MATTER
WHICH SHOULD LEAD THE COURT TO STRETCH TO FIND SOME BASIS FOR JUDICIAL
INTERVENTION.  WHILE THE EQUAL PROTECTION CLAUSE IS INVOKED, THE
OPINION FOR THE COURT NOTABLY ESCHEWS EXPLAINING HOW, CONSONANT WITH
PAST DECISIONS, THE UNDISPUTED FACTS IN THIS CASE CAN BE CONSIDERED TO
SHOW A VIOLATION OF THAT CONSTITUTIONAL PROVISION.  THE MAJORITY SEEMS
TO HAVE ACCEPTED THE ARGUMENT, PRESSED AT THE BAR, THAT IF THIS COURT
MERELY ASSERTS AUTHORITY IN THIS FIELD, TENNESSEE AND OTHER
"MALAPPORTIONING" STATES WILL QUICKLY RESPOND WITH APPROPRIATE
POLITICAL ACTION, SO THAT THIS COURT NEED NOT BE GREATLY CONCERNED
ABOUT THE FEDERAL COURTS BECOMING FURTHER INVOLVED IN THESE MATTERS. 
AT THE SAME TIME THE MAJORITY HAS WHOLLY FAILED TO RECKON WITH WHAT THE
FUTURE MAY HOLD IN STORE IF THIS OPTIMISTIC PREDICTION IS NOT
FULFILLED.  THUS, WHAT THE COURT IS DOING REFLECTS MORE AN ADVENTURE IN
JUDICIAL EXPERIMENTATION THAN A SOLID PIECE OF CONSTITUTIONAL
ADJUDICATION.  WHETHER DISMISSAL OF THIS CASE SHOULD HAVE BEEN FOR WANT
OF JURISDICTION OR, AS IS SUGGESTED IN BELL V. HOOD, 327 U.S. 678, 682
683, FOR FAILURE OF THE COMPLAINT TO STATE A CLAIM UPON WHICH RELIEF
COULD BE GRANTED, THE JUDGMENT OF THE DISTRICT COURT WAS CORRECT. 

IN CONCLUSION, IT IS APPROPRIATE TO SAY THAT ONE NEED NOT AGREE, AS A
CITIZEN, WITH WHAT TENNESSEE HAS DONE OR FAILED TO DO, IN ORDER TO
DEPRECATE, AS A JUDGE, WHAT THE MAJORITY IS DOING TODAY.  THOSE
OBSERVERS OF THE COURT WHO SEE IT PRIMARILY AS THE LAST REFUGE FOR THE
CORRECTION OF ALL INEQUALITY OR INJUSTICE, NO MATTER WHAT ITS NATURE OR
SOURCE, WILL NO DOUBT APPLAUD THIS DECISION AND ITS BREAK WITH THE
PAST.  THOSE WHO CONSIDER THAT CONTINUING NATIONAL RESPECT FOR THE
COURT'S AUTHORITY DEPENDS IN LARGE MEASURE UPON ITS WISE EXERCISE OF
SELF-RESTRAINT AND DISCIPLINE IN CONSTITUTIONAL ADJUDICATION, WILL VIEW
THE DECISION WITH DEEP CONCERN. 

I WOULD AFFIRM. 

                   APPENDIX TO OPINION OF MR. JUSTICE HARLAN. 

                    THE INADEQUACY OF ARITHMETICAL FORMULAS AS
MEASURES

                 OF THE RATIONALITY OF TENNESSEE'S APPORTIONMENT. 

TWO OF THE THREE SEPARATE CONCURRING OPINIONS APPEAR TO CONCEDE THAT
THE EQUAL PROTECTION CLAUSE DOES NOT GUARANTEE TO EACH VOTER A VOTE OF
APPROXIMATELY EQUAL WEIGHT FOR THE STATE LEGISLATURE.  WHETHER THE
EXISTING TENNESSEE APPORTIONMENT IS CONSTITUTIONAL IS RECOGNIZED TO
DEPEND ONLY ON WHETHER IT CAN FIND "ANY POSSIBLE JUSTIFICATION IN
RATIONALITY" (ANTE, P. 265); IT IS TO BE STRUCK DOWN ONLY IF "THE
DISCRIMINATION HERE DOES NOT FIT ANY PATTERN" (ANTE, P. 258). 

ONE OF THE CONCURRING OPINIONS, THAT OF MY BROTHER STEWART, SUGGESTS
NO REASONS WHICH WOULD JUSTIFY A FINDING THAT THE PRESENT DISTRIBUTION
OF STATE LEGISLATORS IS UNCONSTITUTIONALLY ARBITRARY.  THE SAME IS TRUE
OF THE MAJORITY OPINION.  MR. BROTHER CLARK, ON THE OTHER HAND,
CONCLUDES THAT "THE APPORTIONMENT PICTURE IN TENNESSEE IS A TOPSY
TURVICAL OF GIGANTIC PROPORTIONS" (ANTE, P. 254), SOLELY ON THE BASIS
OF CERTAIN STATISTICS PRESENTED IN THE TEXT OF HIS SEPARATE OPINION AND
INCLUDED IN A MORE EXTENSIVE TABLE APPENDED THERETO.  IN MY VIEW, THAT
ANALYSIS IS DEFECTIVE NOT ONLY BECAUSE THE "TOTAL REPRESENTATION"
FORMULA SET OUT IN FOOTNOTE 7 OF THE OPINION (ANTE, P. 255), RESTS ON
FAULTY MATHEMATICAL FOUNDATIONS, BUT, MORE BASICALLY, BECAUSE THE
APPROACH TAKEN WHOLLY IGNORES ALL OTHER FACTORS JUSTIFYING A
LEGISLATIVE DETERMINATION OF THE SORT INVOLVED IN DEVISING A PROPER
APPORTIONMENT FOR A STATE LEGISLATURE.    IN FAILING TO TAKE ANY OF
SUCH OTHER MATTERS INTO ACCOUNT AND IN FOCUSING ON A PARTICULAR
MATHEMATICAL FORMULA WHICH, AS WILL BE SHOWN, IS PATENTLY UNSOUND, MY
BROTHER CLARKS' OPINION HAS, I SUBMIT, UNWITTINGLY SERVED TO BRING INTO
BAS-RELIEF THE VERY REASONS THAT SUPPORT THE VIEW THAT THIS COMPLAINT
DOES NOT STATE A CLAIM ON WHICH RELIEF COULD BE GRANTED.  FOR IN ORDER
TO WARRANT HOLDING A STATE ELECTORAL APPORTIONMENT INVALID UNDER THE
EQUAL PROTECTION CLAUSE, A COURT, IN LINE WITH WELL-ESTABLISHED
CONSTITUTIONAL DOCTRINE, MUST FIND THAT NONE OF THE PERMISSIBLE
POLICIES AND NONE OF THE POSSIBLE FORMULAS ON WHICH IT MIGHT HAVE BEEN
BASED COULD RATIONALLY JUSTIFY PARTICULAR INEQUALITIES. 

                                             I. 

AT THE OUTSET, IT CANNOT BE DENIED THAT THE APPORTIONMENT RULES
EXPLICITLY SET OUT IN THE TENNESSEE CONSTITUTION ARE RATIONAL.  THESE
RULES ARE BASED ON THE FOLLOWING OBVIOUSLY PERMISSIBLE POLICY
DETERMINATIONS:  (1) TO UTILIZE COUNTIES AS ELECTORAL UNITS; (2) TO
PROHIBIT THE DIVISION OF ANY COUNTY IN THE COMPOSITION OF ELECTORAL
DISTRICTS; (3) TO ALLOT TO EACH COUNTY THAT HAS A SUBSTANTIAL VOTING
POPULATION - AT LEAST TWO-THIRDS OF THE AVERAGE VOTING POPULATION PER
COUNTY - A SEPARATE "DIRECT REPRESENTATIVE"; (4) TO CREATE "FLOTERIAL"
DISTRICTS (MULTICOUNTY REPRESENTATIVE DISTRICTS) MADE UP OF MORE THAN
ONE COUNTY; AND (5) TO REQUIRE THAT SUCH DISTTICTS BE COMPOSED OF
ADJOINING COUNTIES.  (FN1)  SUCH A FRAMEWORK UNAVOIDABLY LEADS TO
UNRELIABLE ARITHMETIC INEQUALITIES UNDER ANY MATHEMATICAL FORMULA
WHEREBY THE COUNTIES'"TOTAL REPRESENTATION" IS SOUGHT TO BE MEASURED. 
IT PARTICULARLY RESULTS IN EGREGIOUSLY DECEPTIVE DISPARITIES IF THE
FORMULA PROPOSED IN MY BROTHER CLARK'S OPINION IS APPLIED. 

THAT FORMULA COMPUTES A COUNTY'S "TOTAL REPRESENTATION" BY ADDING (1)
THE NUMBER OF "DIRECT REPRESENTATIVES" THE COUNTY IS ENTITLED TO ELECT;
(2) A FRACTION OF ANY OTHER SEATS IN THE TENNESSEE HOUSE WHICH ARE
ALLOCATED TO THAT COUNTY JOINTLY WITH ONE OR MORE OTHERS IN A
"FLOTERIAL DISTRICT"; (3) TRIPLE THE NUMBER OF SENATORS THE COUNTY IS
ENTITLED TO ELECT ALONE; AND (4) TRIPLE A FRACTION OF ANY SEATS IN THE
TENNESSEE SENATE WHICH ARE ALLOCATED TO THAT COUNTY JOINTLY WITH ONE OR
MORE OTHERS IN A MULTICOUNTY SENATORIAL DISTRICT.  THE FRACTIONS USED
FOR ITEMS (2) AND (4) ARE COMPUTED BY ALLOTTING TO EACH COUNTY IN A
COMBINED DISTRICT AN EQUAL SHARE OF THE HOUSE OR SENATE SEAT,
REGARDLESS OF THE VOTING POPULATION OF EACH OF THE COUNTIES THAT MAKE
UP THE ELECTION DISTRICT.  (FN2) 

THIS FORMULA IS PATENTLY DEFICIENT IN THAT IT ELIMINATES FROM
CONSIDERATION THE RELATIVE VOTING POWER OF THE COUNTIES THAT ARE JOINED
TOGETHER IN A SINGLE ELECTION DISTRICT.  AS A RESULT, THE FORMULA
UNREALISTICALLY ASSIGNS TO MOORE COUNTY ONE-THIRD OF A SENATOR, IN
ADDITION TO ITS DIRECT REPRESENTATIVE (ANTE, P. 255), ALTHOUGH IT MUST
BE OBVIOUS THAT MOORE'S VOTING STRENGTH IN THE EIGHTEENTH SENATORIAL
DISTRICT IS ALMOST NEGLIBIBLE.  SINCE MOORE COUNTY COULD CAST ONLY
2,340 VOTES OF A TOTAL ELIGIBLE VOTE OF 30,478 IN THE SENATORIAL
DISTRICT, IT SHOULD IN TRUTH BE CONSIDERED AS REPRESENTED BY ONE
FIFTEENTH OF A SENATOR.  ASSUMING, ARGUENDO, THAT ANY "TOTAL
REPRESENTATION" FIGURE IS OF SIGNIFICANCE, MOORE'S "TOTAL
REPRESENTATION" SHOULD BE 1.23, NOT 2.  (FN3) 

THE FORMULA SUGGESTED BY MY BROTHER CLARK MUST BE ADJUSTED REGARDLESS
WHETHER ONE THINKS, AS I ASSUREDLY DO NOT, THAT THE FEDERAL
CONSTITUTUION REQUIRES THAT EACH VOTE BE GIVEN EQUAL WEIGHT.  THE
CORRECTION IS NECESSARY SIMPLY TO REFLECT THE REAL FACTS OF POLITICAL
LIFE.  IT MAY, OF COURSE, BE TRUE THAT THE FLOTERIAL REPRESENTATIVE'S
"FUNCTION IS TO REPRESENT THE WHOLE DISTRICT" (ANTE, P. 256).  BUT CAN
IT BE GAINSAID THAT SO LONG AS ELECTIONS WITHIN THE DISTRICT ARE
DECIDED NOT BY A COUNTY-UNIT SYSTEM, IN WHICH EACH COUNTY CASTS ONE
VOTE, BUT BY ADDING THE TOTAL NUMBER OF INDIVIDUAL VOTES CAST FOR EACH
CANDIDATE, THE CONCERN OF THE ELECTED REPRESENTATIVES WILL PRIMARILY BE
WITH THE MOST POPULOUS COUNTIES IN THE DISTRICT? 

                  II. 

I DO NOT MEAN TO SUGGEST THAT ANY MATHEMATICAL FORMULA, ALBEIT AN
"ADJUSTED" ONE, WOULD BE A PROPER TOUCHSTONE TO MEASURE THE RATIONALITY
OF THE PRESENT OR OF APPELLANTS' PROPOSED APPORTIONMENT PLAN.  FOR, AS
THE TABLE APPENDED TO MY BROTHER CLARK'S OPINION SO CONCLUSIVELY SHOWS,
WHETHER ONE APPLIES THE FORMULA HE SUGGESTS OR ONE THAT IS ADJUSTED TO
REFLECT PROPORTIONAL VOTING STRENGTH WITHIN AN ELECTION DISTRICT, NO
PLAN OF APPORTIONMENT CONSISTENT WITH THE PRINCIPAL POLICIES OF THE
TENNESSEE CONSTITUTION COULD PROVIDE PROPORTIONATELY EQUAL "TOTAL
REPRESENTATION" FOR EACH OF TENNESSEE'S 95 COUNTIES. 

THE PATTERN SUGGESTED BY THE APPELLANTS IN EXHIBITS "A" AND "B"
ATTACHED TO THEIR COMPLAINT IS SAID TO BE A "FAIR DISTRIBUTION" WHICH
ACCORDS WITH THE TENNESSEE CONSTITUTION, AND UNDER WHICH EACH OF THE
ELECTION DISTRICTS REPRESENTS APPROXIMATELY EQUAL VOTING POPULATION. 
BUT EVEN WHEN TESTED BY THE "ADJUSTED" FORMULA, THE PLAN REVEALS GROSS
"TOTAL REPRESENTATION" DISPARITIES THAT WOULD MAKE IT APPEAR TO BE A
"CRAZY QUILT."  FOR EXAMPLE, LOUDON COUNTY, WITH TWICE THE VOTING
POPULATION OF HUMPHREYS COUNTY WOULD HAVE LESS REPRESENTATION THAN
HUMPHREYS, AND ABOUT ONE-THIRD THE REPRESENTATION OF WARREN COUNTY,
WHICH HAS ONLY 73 MORE VOTERS.  AMONG THE MORE POPULOUS COUNTIES,
SIMILAR DISCREPANCIES WOULD APPEAR.  ALTHOUGH ANDERSON COUNTY HAS ONLY
SOMEWHAT OVER 10% MORE VOTERS THAN BLOUNT COUNTY, IT WOULD HAVE
APPROXIMATELY 75% MORE REPRESENTATION.  AND BLOUNT WOULD HAVE
APPROXIMATELY TWO-THIRDS THE REPRESENTATION OF MONTGOMERY COUNTY, WHICH
HAS ABOUT 13% LESS VOTERS.  (FN4)

                                III. 

THE FAULT WITH A PURELY STATISTICAL APPROACH TO THE CASE AT HAND LIES
NOT WITH THE PARTICULAR MATHEMATICAL FORMULA USED, BUT IN THE FAILURE
TO TAKE ACCOUNT OF THE FACT THAT A MULTITUDE OF LEGITIMATE LEGISLATIVE
POLICIES, ALONG WITH CIRCUMSTANCES OF GEOGRAPHY AND DEMOGRAPHY, COULD
ACCOUNT FOR THE SEEMING ELECTORAL DISPARITIES AMONG COUNTIES.  THE
PRINCIPLES SET OUT IN THE TENNESSEE CONSTITUTION ARE JUST SOME OF THOSE
THAT WERE DEEMED SIGNIFICANT.  OTHERS MAY HAVE BEEN CONSIDERED AND
ACCEPTED BY THOSE ENTRUSTED WITH THE RESPONSIBILITY FOR TENNESSEE'S
APPORTIONMENT.  AND FOR THE PURPOSES OF JUDGING CONSTITUTIONALITY UNDER
THE EQUAL PROTECTION CLAUSE IT MUST BE REMEMBERED THAT WHAT IS
CONTROLLING ON THE ISSUE OF "RATIONALITY" IS NOT WHAT THE STATE
LEGISLATURE MAY ACTUALLY HAVE CONSIDERED BUT WHAT IT MAY BE DEEMED TO
HAVE CONSIDERED. 

FOR EXAMPLE, IN THE LIST OF "HORRIBLES" CITED BY MY BROTHER CLARK
(ANTE, P. 255); ALL THE "UNDERREPRESENTED" COUNTIES ARE SEMIURBAN:  ALL
CONTAIN MUNICIPALITIES OF OVER 10,000 POPULATION.  (FN5)  THIS IS NOT
TO SAY, HOWEVER, THAT THE PRESENCE OF ANY SUCH MUNICIPALITY WITHIN A
COUNTY NECESSARILY DEMANDS THAT ITS PROPORTIONAL REPRESENTATION BE
REDUCED IN ORDER TO RENDER IT CONSISTENT WITH AN "URBAN VERSUS RURAL"
PLAN OF APPORTIONMENT.  OTHER CONSIDERATIONS MAY INTERVENE AND OUTWEIGH
THE LEGISLATURE'S DESIRE TO DISTRIBUTE SEATS SO AS TO ACHIEVE A PROPER
BALANCE BETWEEN URBAN AND RURAL INTERESTS.  THE SIZE OF A COUNTY, IN
TERMS OF ITS TOTAL AREA, MAY BE A FACTOR.  (FN6)  OR THE LOCATION
WITHIN A COUNTY OF SOME MAJOR INDUSTRY MAY BE THOUGHT TO CALL FOR
DILUTION OF VOTING STRENGTH.  (FN7)  AGAIN, THE COMBINATION OF CERTAIN
SMALLER COUNTIES WITH THEIR MORE HEAVILY POPULATED NEIGHBORS IN
SENATORIAL OR "FLOTERIAL" DISTRICTS MAY RESULT IN APPARENT ARITHMETIC
INEQUALITIES.  (FN8) 

MORE BROADLY, THE DISPARITIES IN ELECTORAL STRENGTH AMONG THE VARIOUS
COUNTIES IN TENNESSEE, BOTH THOSE RELIED UPON BY MY BROTHER CLARK AND
OTHERS, MAY BE ACCOUNTED FOR BY VARIOUS ECONOMIC, (FN9) POLITICAL,
(FN10) AND GEOGRAPHIC (FN11) CONSIDERATIONS.  NO ALLEGATION IS MADE BY
THE APPELLANTS THAT THE EXISTING APPORTIONMENT IS THE RESULT OF ANY
OTHER FORCES THAN ARE ALWAYS AT WORK IN ANY LEGISLATIVE PROCESS; AND
THE RECORD, BRIEFS, AND ARGUMENTS IN THIS COURT THEMSELVES ATTEST TO
THE FACT THAT THE APPELLANTS COULD PUT FORWARD NOTHING FURTHER AT A
TRIAL. 

BY DISREGARDING THE WIDE VARIETY OF PERMISSIBLE LEGISLATIVE
CONSIDERATIONS THAT MAY ENTER INTO A STATE ELECTORAL APPORTIONMENT MY
BROTHER CLARK HAS TURNED A HIGHLY COMPLEX PROCESS INTO AN ELEMENTARY
ARITHMETICAL PUZZLE.  IT IS ONLY BY BLINKING REALITY THAT SUCH AN
ANALYSIS CAN STAND AND THAT THE ESSENTIALLY LEGISLATIVE DETERMINATION
CAN BE MADE THE SUBJECT OF JUDICIAL INQUIRY. 

                                      IV. 

APART FROM SUCH POLICIES AS THOSE SUGGESTED WHICH WOULD SUFFICE TO
JUSTIFY PARTICULAR INEQUALITIES, THERE IS A FURTHER CONSIDERATION WHICH
COULD RATIONALLY HAVE LED THE TENNESSEE LEGISLATURE, IN THE EXERCISE OF
A DELIBERATE CHOICE, TO MAINTAIN THE STATUS QUO.  RIGIDITY OF AN
APPORTIONMENT PATTERN MAY BE AS MUCH A LEGISLATIVE POLICY DECISION AS
IS A PROVISION FOR PERIODIC REAPPORTIONMENT.  IN THE INTEREST OF
STABILITY, A STATE MAY WRITE INTO ITS FUNDAMENTAL LAW A PERMANENT
DISTRIBUTION OF LEGISLATORS AMONG ITS VARIOUS ELECTION DISTRICTS, THUS
FOREVER IGNORING SHIFTS IN POPULATION.  INDEED, SEVERAL STATES HAVE
ACHIEVED THIS RESULT BY PROVIDING FOR MINIMUM AND MAXIMUM
REPRESENTATION FROM VARIOUS POLITICAL SUBDIVISIONS SUCH AS COUNTIES,
DISTRICTS, CITIES, OR TOWNS.  SEE HARVEY, REAPPORTIONMENTS OF STATE
LEGISLATURES - LEGAL REQUIREMENTS, 17 LAW & CONTEMP.  PROBS.  (1952),
364, 368-372. 

IT IS SAID THAT ONE CANNOT FIND ANY RATIONAL STANDARD IN WHAT THE
TENNESSEE LEGISLATURE HAS FAILED TO DO OVER THE PAST 60 YEARS.  BUT
SURELY ONE NEED NOT SEARCH FAR TO FIND RATIONALITY IN THE LEGISLATURE'S
CONTINUED REFUSAL TO RECOGNIZE THE GROWTH OF THE URBAN POPULATION THAT
HAS ACCOMPANIED THE DEVELOPMENT OF INDUSTRY OVER THE PAST HALF DECADE. 
THE EXISTENCE OF SLIGHT DISPARITIES BETWEEN RURAL AREAS DOES NOT
OVERCOME THE FACT THAT THE FOREMOST APPARENT LEGISLATIVE MOTIVATION HAS
BEEN TO PRESERVE THE ELECTORAL STRENGTH OF THE RURAL INTERESTS
NOTWITHSTANDING SHIFTS IN POPULATION.  AND I UNDERSTAND IT TO BE
CONCEDED BY AT LEAST SOME OF THE MAJORITY THAT THIS POLICY IS NOT
RENDERED UNCONSTITUTIONAL MERELY BECAUSE IT FAVORS RURAL VOTERS. 

ONCE THE ELECTORAL APPORTIONMENT PROCESS IS RECOGNIZED FOR WHAT IT IS
- THE PRODUCT OF LEGISLATIVE GIVE-AND-TAKE AND OF COMPROMISE AMONG
POLICIES THAT OFTEN CONFLICT - THE RELEVANT CONSTITUTIONAL PRINCIPLES
AT ONCE PUT THESE APPELLANTS OUT OF THE FEDERAL COURTS. 

FN1  THE RELEVANT PROVISIONS OF THE TENNESSEE CONSTITUTION ARE ART.
II, SECS. 5 AND 6: 

"SEC. 5.  APPORTIONMENT OF REPRESENTATIVES.  - THE NUMBER OF
REPRESENTATIVES SHALL, AT THE SEVERAL PERIODS OF MAKING THE
ENUMERATION, BE APPORTIONED AMONG THE SEVERAL COUNTIES OR DISTRICTS,
ACCORDING TO THE NUMBER OF QUALIFIED VOTERS IN EACH; AND SHALL NOT
EXCEED SEVENTY-FIVE, UNTIL THE POPULATION OF THE STATE SHALL BE ONE
MILLION AND A HALF, AND SHALL NEVER EXCEED NINETY-NINE; PROVIDED, THAT
ANY COUNTY HAVING TWO-THIRDS OF THE RATIO SHALL BE ENTITLED TO ONE
MEMBER. 

"SEC. 6.  APPORTIONMENT OF SENATORS.  - THE NUMBER OF SENATORS SHALL,
AT THE SEVERAL PERIODS OF MAKING THE ENUMERATION, BE APPORTIONED AMONG
THE SEVERAL COUNTIES OR DISTRICTS ACCORDING TO THE NUMBER OF QUALIFIED
ELECTORS IN EACH, AND SHALL NOT EXCEED ONE-THIRD THE NUMBER OF
REPRESENTATIVES.  IN APPORTIONING THE SENATORS AMONG THE DIFFERENT
COUNTIES, THE FRACTION THAT MAY BE LOST BY ANY COUNTY OR COUNTIES, IN
THE APPORTIONMENT OF MEMBERS OF THE HOUSE OF REPRESENTATIVES, SHALL BE
MADE UP TO SUCH COUNTY OR COUNTIES IN THE SENATE, AS NEAR AS MAY BE
PRACTICABLE.  WHEN A DISTRICT IS COMPOSED OF TWO OR MORE COUNTIES, THEY
SHALL BE ADJOINING; AND NO COUNTIES SHALL BE DIVIDED IN FORMING A
DISTRICT." 

FN2  THIS FORMULA IS NOT CLEARLY SPELLED OUT IN THE OPINION, BUT IT
IS NECESSARILY INFERRED FROM THE FIGURES THAT ARE PRESENTED.  KNOX
COUNTY, FOR EXAMPLE, IS SAID TO HAVE A "TOTAL REPRESENTATION" OF 7.25. 
IT ELECTS (1) THREE DIRECT REPRESENTATIVES (VALUE 3.00); (2) ONE
REPRESENTATIVE FROM A TWO-COUNTY DISTRICT (VALUE .50); (3) ONE DIRECT
SENATOR (VALUE 3.00); AND (4) ONE SENATOR IN A FOUR-COUNTY DISTRICT
(VALUE .75).  SEE APPENDIX TO OPINION OF MR. JUSTICE CLARK, ANTE, PP.
262-264. 

FN3  IF THIS "ADJUSTED" FORMULA FOR MEASURING "TOTAL REPRESENTATION"
IS APPLIED TO THE OTHER "HORRIBLES" CITED IN THE CONCURRING OPINION
(ANTE, P. 255), IT REVEALS THAT THESE COUNTIES - WHICH PURPORTEDLY HAVE
EQUAL "TOTAL REPRESENTATION" BUT DISTINCTLY UNEQUAL VOTING POPULATION -
DO NOT HAVE THE SAME "TOTAL REPRESENTATION" AT ALL.  RATHER THAN HAVING
THE SAME REPRESENTATION AS RUTHERFORD COUNTY, MOORE COUNTY HAS ONLY
ABOUT 40% OF WHAT RUTHERFORD HAS.  DECATUR COUNTY HAS ONLY 55% OF THE
REPRESENTATION OF CARTER COUNTY.  WHILE LOUDON AND ANDERSON COUNTIES
ARE SUBSTANTIALLY UNDERREPRESENTED, THIS IS BECAUSE OF THEIR PROXIMITY
TO KNOX COUNTY, WHICH OUTWEIGHS THEIR VOTES IN THE SIXTH SENATORIAL
DISTRICT AND IN THE EIGHTH FLOTERIAL DISTRICT. 

FN4  THESE DISPARITIES ARE AS SERIOUS, IF NOT MORE SO, WHEN MY
BROTHER CLARK'S FORMULA IS APPLIED TO THE APPELLANTS' PROPOSAL.  FOR
EXAMPLE, IF THE SEVEN COUNTIES CHOSEN BY HIM AS ILLUSTRATIVE ARE
EXAMINED AS THEY WOULD BE REPRESENTED UNDER THE APPELLANTS'
DISTRIBUTION, MOORE COUNTY, WITH A VOTING POPULATION OF 2,340, IS GIVEN
MORE ELECTORAL STRENGTH THAN DECATUR COUNTY, WITH A VOTING POPULATION
OF 5,563.  CARTER COUNTY (VOTING POPULATION 23,302) HAS 20% MORE "TOTAL
REPRESENTATION" THAN ANDERSON COUNTY (VOTING POPULATION 33,990), AND
33% MORE THAN RUTHERFORD COUNTY (VOTING POPULATION 25,316).    FN5
MURFREESBORO, RUTHERFORD COUNTY (POP.  16,017); ELIZABETHTON, CARTER
COUNTY (POP.  10,754); OAK RIDGE, ANDERSON COUNTY (POP.  27,387). 
TENNESSEE BLUE BOOK, 1960, PP. 143-149. 

FN6  FOR EXAMPLE, CARTER AND WASHINGTON COUNTIES ARE EACH
APPROXIMATELY 60% AS LARGE AS MAURY AND MADISON COUNTIES IN TERMS OF
SQUARE MILES, AND THIS MAY EXPLAIN THE DISPARITY BETWEEN THEIR "TOTAL
REPRESENTATION" FIGURES. 

FN7  FOR EXAMPLE, IN ADDITION TO BEING "SEMI-URBAN," BLOUNT COUNTY IS
THE LOCATION OF THE CITY OF ALCOA, WHERE THE ALUMINUM COMPANY OF
AMERICA HAS LOCATED A LARGE ALUMINUM SMELTING AND ROLLING PLANT.  THIS
MAY EXPLAIN THE DIFFERENCE BETWEEN ITS "TOTAL REPRESENTATION" AND THAT
OF GIBSON COUNTY, WHICH HAS NO SUCH LARGE INDUSTRY AND CONTAINS NO
MUNICIPALITY AS LARGE AS MARYVILLE. 

FN8  FOR EXAMPLE, CHESTER COUNTY (VOTING POPULATION 6,391) IS ONE OF
THOSE THAT IS PRESENTLY SAID TO BE OVERREPRESENTED.  BUT UNDER THE
APPELLANTS' PROPOSAL, CHESTER WOULD BE COMBINED WITH POPULOUS MADISON
COUNTY IN A "FLOTERIAL DISTRICT" AND WITH FOUR OTHERS, INCLUDING SHELBY
COUNTY, IN A SENATORIAL DISTRICT.  CONSEQUENTLY, ITS TOTAL
REPRESENTATION ACCORDING TO THE APPENDIX TO MY BROTHER CLARK'S OPINION
WOULD BE .19.  (ANTE, P. 262.)  THIS WOULD HAVE THE EFFECT OF
DISENFRANCHISING ALL THE COUNTY'S VOTERS.  SIMILARLY, RHEA COUNTY'S
ALMOST 9,000 VOTERS WOULD FIND THEIR VOTING STRENGTH SO DILUTED AS TO
BE PRACTICALLY NONEXISTENT. 

FN9  FOR EXAMPLE, IT IS PRIMARILY THE EASTERN PORTION OF THE STATE
THAT IS COMPLAINING OF MALAPPORTIONMENT (ALONG WITH THE CITIES OF
MEMPHIS AND NASHVILLE).  BUT THE EASTERN SECTION IS WHERE INDUSTRY IS
PRINCIPALLY LOCATED AND WHERE POPULATION DENSITY, EVEN OUTSIDE THE
LARGE URBAN AREAS, IS HIGHEST.  CONSEQUENTLY, IF TENNESSEE IS
APPORTIONING IN FAVOR OF ITS AGRICULTURAL INTERESTS, AS
CONSTITUTIONALLY IT WAS ENTITLED TO DO, IT WOULD NECESSARILY REDUCE
REPRESENTATION FROM THE EAST. 

FN10  FOR EXAMPLE, SOUND POLITICAL REASONS SURELY JUSTIFY LIMITING
THE LEGISLATIVE CHAMBERS TO WORKABLE NUMBERS; IN TENNESSEE, THE HOUSE
IS SET AT 99 AND THE SENATE AT 33.  IT MIGHT HAVE BEEN DEEMED
DESIRABLE, THEREFORE, TO SET A CEILING ON REPRESENTATION FROM ANY
SINGLE COUNTY SO AS NOT TO DEPRIVE OTHERS OF INDIVIDUAL
REPRESENTATION.  THE PROPORTIONAL DISCREPANCIES AMONG THE FOUR COUNTIES
WITH LARGE URBAN CENTERS MAY BE ATTRIBUTABLE TO A CONSCIOUS POLICY OF
LIMITING REPRESENTATION IN THIS MANNER. 

FN11  FOR EXAMPLE, MOORE COUNTY IS SURROUNDED BY FOUR COUNTIES EACH
OF WHICH HAS SUFFICIENT VOTING POPULATION TO EXCEED TWO-THIRDS OF THE
AVERAGE VOTING POPULATION PER COUNTY (WHICH IS THE STANDARD PRESCRIBED
BY THE TENNESSEE CONSTITUTION FOR THE ASSIGNMENT OF A DIRECT
REPRESENTATIVE), THUS QUALIFYING FOR DIRECT REPRESENTATIVES. 
CONSEQUENTLY MOORE COUNTY MUST BE ASSIGNED A REPRESENTATIVE OF ITS OWN
DESPITE ITS SMALL VOTING POPULATION BECAUSE IT CANNOT BE JOINED WITH
ANY OF ITS NEIGHBORS IN A MULTICOUNTY DISTRICT, AND THE TENNESSEE
CONSTITUTION PROHIBITS COMBINING IT WITH NONADJACENT COUNTIES.  SEE
NOTE 1, SUPRA.
..END :






TURNER V. CITY OF MEMPHIS 369 U.S. 350 


NO. 84.  ARGUED FEBRUARY 27, 1962 - DECIDED MARCH 26, 1962 - JUDGMENT
VACATED AND CASE REMANDED. 


APPELLANT, A NEGRO WHO HAD BEEN REFUSED NONSEGREGATED SERVICE IN A
RESTAURANT OPERATED BY A PRIVATE CORPORATION ON PREMISES LEASED FROM A
CITY AT ITS MUNICIPAL AIRPORT, SUED IN A FEDERAL DISTRICT COURT ON
BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED TO ENJOIN SUCH
DISCRIMINATION.  HE RESTED JURISDICTION ON 28 U.S.C. SEC. 1343(3),
BASED THE CAUSE OF ACTION ON 42 U.S.C. SEC. 1983 AND ALLEGED THAT
APPELLEES HAD ACTED UNDER COLOR OF STATE LAW.  A THREE-JUDGE DISTRICT
COURT CONVENED TO CONSIDER THE CASE ABSTAINED FROM FURTHER PROCEEDINGS
PENDING INTERPRETATION BY THE STATE COURTS OF CERTAIN STATE STATUTES
RELIED UPON BY APPELLEES AS REQUIRING RACIAL SEGREGATION IN THE
RESTAURANT.  APPELLANTS APPEALED BOTH TO THE COURT OF APPEALS AND
DIRECTLY TO THIS COURT.  HELD: 

1.  SINCE THE UNCONSTITUTIONALITY OF STATE STATUTES REQUIRING RACIAL
SEGREGATION IN PUBLICLY OPERATED FACILITIES IS SO WELL SETTLED THAT IT
IS FORECLOSED AS A LITIGABLE ISSUE (BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715), A THREE-JUDGE COURT WAS NOT REQUIRED TO PASS
ON THIS CASE UNDER 28 U.S.C. SEC. 2281 (BAILEY V. PATTERSON, ANTE, P.
31), AND JURISDICTION OF THIS APPEAL IS VESTED IN THE COURT OF
APPEALS.  P. 353. 

2.  THERE WAS NO OCCASION FOR ABSTENTION FROM DECISION PENDING
INTERPRETATION OF THE STATE STATUTES BY THE STATE COURTS; APPELLANT'S
JURISDICTIONAL STATEMENT IS TREATED AS A PETITION FOR CERTIORARI PRIOR
TO THE JUDGMENT OF THE COURT OF APPEALS UNDER 28 U.S.C. SECS. 1254(1)
AND 2101(E); THE PETITION IS GRANTED; THE ORDER OF THE DISTRICT COURT
IS VACATED; AND THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO
ENTER A DECREE GRANTING APPROPRIATE INJUNCTIVE RELIEF AGAINST THE
DISCRIMINATION COMPLAINED OF.  PP. 353-354. 

TURNER V. CITY OF MEMPHIS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TENNESSEE. 

PER CURIAM. 

APPELLANT, A NEGRO WHO WAS REFUSED NONSEGREGATED SERVICE IN THE
MEMPHIS MUNICIPAL AIRPORT RESTAURANT OPERATED BY APPELLEE DOBBS HOUSES,
INC., UNDER A LEASE FROM APPELLEE CITY OF MEMPHIS, INSTITUTED THIS
ACTION ON BEHALF OF HIMSELF AND OTHER NEGROES SIMILARLY SITUATED
SEEKING AN INJUNCTION AGAINST SUCH DISCRIMINATION.  HE RESTED
JURISDICTION UPON 28 U.S.C.  SEC. 1343(3) AND PREMISED THE CAUSE OF
ACTION UPON 42 U.S.C. SEC. 1983.  ALTHOUGH THE COMPLAINT ALLEGED THAT
APPELLEES ACTED UNDER COLOR OF STATE LAW, IT DID NOT IDENTIFY ANY
PARTICULAR STATE STATUTES OR REGULATIONS BEING CHALLENGED.  BUT
APPELLEES' ANSWERS, IN ADDITION TO ASSERTING THAT THE RESTAURANT WAS A
PRIVATE ENTERPRISE TO WHICH THE FOURTEENTH AMENDMENT DID NOT APPLY,
INVOKED TENN. CODE ANN. SECS. 53-2120, 53-2121, AND REGULATION NO. R-18
(L).  THE STATUTES AS NOW PHRASED AUTHORIZE THE DIVISION OF HOTEL AND
RESTAURANT INSPECTION OF THE STATE DEPARTMENT OF CONSERVATION TO ISSUE
"SUCH RULES AND REGULATIONS  ...  AS MAY BE NECESSARY PERTAINING TO THE
SAFETY AND/OR SANITATION OF HOTELS AND RESTAURANTS  ...  " AND MAKE
VIOLATIONS OF SUCH REGULATIONS A MISDEMEANOR.  THE REGULATION,
PROMULGATED BY THE DIVISION, PROVIDES THAT "RESTAURANTS CATERING TO
BOTH WHITE AND NEGRO PATRONS SHOULD BE ARRANGED SO THAT EACH RACE IS
PROPERLY SEGREGATED."  THE ANSWERS ALSO SET UP THE LEASE AGREEMENT
WHICH PROVIDES, INTER ALIA, THAT THE LEASED PREMISES ARE TO BE USED
"ONLY AND EXCLUSIVELY FOR LAWFUL PURPOSES, AND NO PART OF THE PREMISES
SHALL BE USED IN ANY MANNER WHATSOEVER FOR ANY PURPOSES IN VIOLATION OF
THE LAWS OF  ...  THE STATE OF TENNESSEE  ...  ."  THE CITY OF MEMPHIS
ALLEGED FURTHER THAT UNLESS AND UNTIL THE REGULATION WAS DECLARED
UNCONSTITUTIONAL, THE CITY WOULD BE BOUND TO OBJECT TO DESEGREGATION OF
THE RESTAURANT BY DOBBS HOUSES AS A VIOLATION OF TENNESSEE LAW AND OF
THE LEASE.  DOBBS HOUSES ALLEGED THAT DESEGREGATION BY IT OF THE
RESTAURANT WOULD THEREFORE SUBJECT IT TO FORFEITURE OF THE LEASE. 
DOBBS HOUSES LATER AMENDED ITS ANSWER TO INCLUDE A DEFENSE BASED ON
TENN. CODE ANN. SEC.  62-710.  THAT STATUTE "ABROGATES" TENNESSEE'S
COMMON-LAW CAUSE OF ACTION FOR EXCLUSION FROM HOTELS OR OTHER PUBLIC
PLACES, AND DECLARES THAT THE OPERATORS OF SUCH ESTABLISHMENTS ARE FREE
TO EXCLUDE PERSONS "FOR ANY REASON WHATEVER." 

WHEN THE APPELLANT MOVED FOR SUMMARY JUDGMENT BEFORE A SINGLE
DISTRICT JUDGE, THE APPELLEES OPPOSED THE MOTION ON THE GROUND THAT THE
RELIEF SOUGHT NECESSARILY CHALLENGED THE CONSTITUTIONALITY OF THE STATE
STATUTES AND REGULATION SO THAT UNDER 28 U.S.C. SECS. 2281, 2284, A
THREE-JUDGE COURT WAS REQUIRED.  THE SINGLE JUDGE THEREUPON CONVENED A
THREE-JUDGE COURT.  UPON RENEWAL BY THE APPELLANT BEFORE THAT COURT OF
HIS MOTION FOR SUMMARY JUDGMENT, THE APPELLEES URGED, AND THE THREE
JUDGE COURT ORDERED, THAT APPELLANT'S SUIT SHOULD BE HELD IN ABEYANCE
PENDING A "DECLARATORY JUDGMENT SUIT TO BE BROUGHT BY PLAINTIFFS IN THE
TENNESSEE COURTS SEEKING AN INTERPRETATION OF THE STATE STATUTES UNDER
CONSIDERATION."  APPELLANT, BEING IN DOUBT WHETHER THE CASE WAS ONE
"REQUIRED ...  TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF THREE
JUDGES," IN ADDITION TO APPEALING FROM THE ABSTENTION ORDER DIRECTLY TO
THIS COURT UNDER 28 U.S.C. SEC. 1253, ALSO PERFECTED A TIMELY APPEAL TO
THE COURT OF APPEALS FOR THE SIXTH CIRCUIT.  WE POSTPONED CONSIDERATION
OF THE QUESTION OF OUR JURISDICTION OF THE DIRECT APPEAL TO THE HEARING
ON THE MERITS.  368 U.S. 808. 

WHETHER OR NOT IT MAY BE SAID THAT APPELLANT'S COMPLAINT IS TO BE
READ AS SEEKING, UNDER 28 U.S.C. SEC. 2281, AN "INJUNCTION RESTRAINING
THE ENFORCEMENT, OPERATION OR EXECUTION OF A  ...  STATE STATUTE BY
RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT
OR EXECUTION OF SUCH STATUTE," A QUESTION WHICH WE NEED NOT DECIDE, IT
IS CLEAR FOR OTHER REASONS THAT A THREE-JUDGE COURT WAS NOT REQUIRED
FOR THE DISPOSITION OF THIS CASE.  SINCE, AS WAS CONCEDED BY DOBBS
HOUSES AT THE BAR OF THIS COURT, THE DOBBS HOUSES RESTAURANT WAS
SUBJECT TO THE STRICTURES OF THE FOURTEENTH AMENDMENT UNDER BURTON V.
WILMINGTON PARKING AUTHORITY, 365 U.S. 715, THE STATUTES AND REGULATION
INVOKED BY APPELLEES COULD HAVE FURNISHED A DEFENSE TO THE ACTION ONLY
INSOFAR AS THEY EXPRESSED AN AFFIRMATIVE STATE POLICY FOSTERING
SEGREGATION IN PUBLICLY OPERATED FACILITIES.  BUT OUR DECISIONS HAVE
FORECLOSED ANY POSSIBLE CONTENTION THAT SUCH A STATUTE OR REGULATION
MAY STAND CONSISTENTLY WITH THE FOURTEENTH AMENDMENT.  BROWN V. BOARD
OF EDUCATION, 347 U.S. 483; MAYOR & CITY COUNCIL V. DAWSON, 350 U.S.
877; HOLMES V. CITY OF ATLANTA, 350 U.S. 879; GAYLE V. BROWDER, 352
U.S. 903; NEW ORLEANS CITY PARK IMPROVEMENT ASSN. V. DETIEGE, 358 U.S.
54.  IT FOLLOWS UNDER OUR RECENT DECISION IN BAILEY V. PATTERSON, ANTE,
P. 31, THAT A THREE-JUDGE COURT WAS NOT REQUIRED AND THAT JURISDICTION
OF THIS APPEAL IS VESTED IN THE COURT OF APPEALS. 

BUT WE SEE NO REASON WHY DISPOSITION OF THE CASE SHOULD AWAIT
DECISION OF THE APPEAL BY THE COURT OF APPEALS.  ON THE MERITS, NO
ISSUE REMAINS TO BE RESOLVED.  THIS IS CLEAR UNDER PRIOR DECISIONS AND
THE UNDISPUTED FACTS OF THE CASE.  ACCORDINGLY NO OCCASION IS PRESENTED
FOR ABSTENTION, AND THE LITIGATION SHOULD BE DISPOSED OF AS
EXPEDITIOUSLY AS IS CONSISTENT WITH PROPER JUDICIAL ADMINISTRATION.  IN
LIGHT OF THE PERFECTED APPEAL TO THE SIXTH CIRCUIT COURT OF APPEALS, IT
IS APPROPRIATE THAT WE TREAT, AND WE DO TREAT, APPELLANT'S
JURISDICTIONAL STATEMENT AS A PETITION FOR WRIT OF CERTIORARI PRIOR TO
JUDGMENT IN THE COURT OF APPEALS.  28 U.S.C. SECS. 1254(1), 2101(E);
STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368, 370-371.  THE PETITION IS
GRANTED, THE DISTRICT COURT'S ABSTENTION ORDER IS VACATED AND THE CASE
IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO ENTER A DECREE
GRANTING APPROPRIATE INJUNCTIVE RELIEF AGAINST THE DISCRIMINATION
COMPLAINED OF. VACATED AND REMANDED. 

MR. JUSTICE WHITTAKER DID NOT PARTICIPATE IN THE DECISION OF THIS
CASE. 
..END :




DIBELLA V. UNITED STATES 369 U.S. 121 


NO. 21.  ARGUED JANUARY 16-17, 1962 - DECIDED MARCH 19, 1962* - 284 F.2D
897, JUDGMENT VACATED WITH INSTRUCTIONS TO DISMISS THE APPEAL - 290
F.2D 166, AFFIRMED. 

*TOGETHER WITH NO. 93, UNITED STATES V. KOENIG, CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, ARGUED JANUARY
17, 1962. 


AN ORDER OF A FEDERAL DISTRICT COURT GRANTING OR DENYING A PRE
INDICTMENT MOTION UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 41(E) TO
SUPPRESS THE EVIDENTIARY USE IN A FEDERAL CRIMINAL TRIAL OF PROPERTY
ALLEGEDLY PROCURED THROUGH AN UNLAWFUL SEARCH AND SEIZURE IS NOT
APPEALABLE - EVEN WHEN RENDERED IN A DIFFERENT DISTRICT FROM THAT OF
TRIAL.  PP. 121-133. 

DIBELLA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES PRESENT VARIANTS OF THE SAME PROBLEM:  THE
APPEALABILITY OF AN ORDER GRANTING OR DENYING A PRETRIAL MOTION TO
SUPPRESS THE EVIDENTIARY USE IN A FEDERAL CRIMINAL TRIAL OF MATERIAL
ALLEGEDLY PROCURED THROUGH AN UNREASONABLE SEARCH AND SEIZURE.  (FN1)
A BRIEF RECITAL OF THE PROCEDURAL HISTORY OF EACH WILL PLACE OUR
PROBLEM IN CONTEXT. 

ON OCTOBER 15, 1958, A WARRANT WAS ISSUED BY A UNITED STATES
COMMISSIONER IN THE EASTERN DISTRICT OF NEW YORK FOR THE ARREST OF
MARIO DIBELLA UPON A COMPLAINT CHARGING UNLAWFUL SALES OF NARCOTICS. 
THE WARRANT WAS EXECUTED ON MARCH 9, 1959, IN DIBELLA'S APARTMENT, AND
WAS FOLLOWED BY SEIZURE OF THE DRUGS, EQUIPMENT, AND CASH NOW IN
QUESTION.  DIBELLA WAS ARRAIGNED AND RELEASED UNDER BAIL THE NEXT DAY. 
ON JUNE 17, 1959, A MOTION TO SUPPRESS WAS FILED ON HIS BEHALF WITH THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, AND HEARING WAS
SCHEDULED FOR JULY 6.  SEVERAL CONTINUANCES FOLLOWED, AND BEFORE THE
HEARING WAS HELD, ON AUGUST 25, AN INDICTMENT AGAINST DIBELLA WAS
RETURNED IN THE SAME DISTRICT.  THE MOTION WAS ULTIMATELY DENIED,
WITHOUT PREJUDICE TO RENEWAL AT TRIAL.  178 F. SUPP. 5.  THE COURT OF
APPEALS FOR THE SECOND CIRCUIT HELD THE ORDER APPEALABLE, IN ACCORDANCE
WITH ITS PRIOR DECISIONS, BECAUSE THE MOTION WAS FILED BEFORE RETURN OF
THE INDICTMENT.  284 F.2D 897. 

THE MOTION IN THE COMPANION CASE, ON BEHALF OF DANIEL KOENIG, WAS
LIKEWISE FILED BEFORE INDICTMENT, AND THIS TIME IN A DISTRICT OTHER
THAN THAT OF TRIAL.  KOENIG HAD BEEN ARRESTED ON SEPTEMBER 22, 1959, IN
THE SOUTHERN DISTRICT OF FLORIDA ON THE BASIS OF A COMPLAINT CHARGING
ROBBERY OF A FEDERALLY INSURED BANK IN THE SOUTHERN DISTRICT OF OHIO. 
HIS MOTION TO SUPPRESS AND FOR RETURN OF PROPERTY SEIZED DURING THAT
ARREST WAS FILED IN THE FLORIDA FEDERAL COURT ON OCTOBER 12, THREE DAYS
AFTER THE LOCAL UNITED STATES COMMISSIONER HAD HELD A FINAL HEARING ON
THE OHIO COMPLAINT AND TWO DAYS BEFORE HE RECOMMENDED A WARRANT OF
REMOVAL.  ON OCTOBER 16, AN INDICTMENT AGAINST KOENIG WAS RETURNED IN
THE SOUTHERN DISTRICT OF OHIO.  AFTER THREE HEARINGS ON THE MOTION, THE
FLORIDA DISTRICT COURT ENTERED ITS ORDER ON DECEMBER 18, GRANTING
SUPPRESSION BUT DENYING RETURN WITHOUT PREJUDICE TO RENEWAL OF THE
MOTION IN THE TRIAL COURT.  THE GOVERNMENT'S APPEAL TO THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT WAS DISMISSED FOR LACK OF JURISDICTION ON
THE GROUND THAT, FOLLOWING RECENT DECISIONS OF THAT COURT, THE ORDER
WAS INTERLOCUTORY IN A CRIMINAL CASE.  290 F.2D 166.  WE GRANTED
CERTIORARI IN THE TWO CASES, 365 U.S. 809 AND 368 U.S. 812,
RESPECTIVELY, TO RESOLVE A CONFLICT AMONG THE CIRCUITS. 

THE SETTLED VIEW OF THE SECOND CIRCUIT, THAT A RULING ON A PRE
INDICTMENT MOTION INVARIABLY LAYS THE BASIS FOR IMMEDIATE APPELLATE
REVIEW, IN THAT IT CONSTITUTES A "FINAL DECISION" UNDER 28 U.S.C. SEC.
1291, EVEN THOUGH AN INDICTMENT INTERVENES, HAS NOT BEEN SQUARELY
PASSED UPON BY THIS COURT.  WE HAVE DENIED APPEALABILITY FROM ORDERS ON
POST-INDICTMENT MOTIONS TO BOTH THE GOVERNMENT, CARROLL V. UNITED
STATES, 354 U.S. 394, AND THE DEFENDANT, COGEN V. UNITED STATES, 278
U.S. 221.  THE COURT HAS, HOWEVER, IN FACT ALLOWED APPEALS FROM ORDERS
GRANTING AND DENYING PRE-INDICTMENT MOTIONS, (FN2) AND THESE
DISPOSITIONS HAVE GIVEN RISE TO EXPLANATORY DICTA THAT LEND SUPPORT TO
THE RULE DEVELOPED IN THE SECOND CIRCUIT.  (FN3)  NOT ONLY DISAGREEMENT
AMONG THE CIRCUITS BUT DUBIETIES WITHIN THEM DEMAND AN ADJUDICATION
BASED UPON SEARCHING CONSIDERATION OF SUCH CONFLICTING AND CONFUSED
VIEWS REGARDING A PROBLEM OF CONSIDERABLE IMPORTANCE IN THE PROPER
ADMINISTRATION OF CRIMINAL JUSTICE. 

THE GENERAL PRINCIPLE OF FEDERAL APPELLATE JURISDICTION, DERIVED FROM
THE COMMON LAW AND ENACTED BY THE FIRST CONGRESS, REQUIRES THAT REVIEW
OF NISI PRIUS PROCEEDINGS AWAIT THEIR TERMINATION BY FINAL JUDGMENT. 
FIRST JUDICIARY ACT, SECS. 21, 22, 25, 1 STAT. 73, 83, 84, 85 (1789);
SEE MCLISH V. ROFF, 141 U.S. 661.  THIS INSISTENCE ON FINALITY AND
PROHIBITION OF PIECEMEAL REVIEW DISCOURAGE UNDUE LITIGIOUSNESS AND
LEADEN-FOOTED ADMINISTRATION OF JUSTICE, PARTICULARLY DAMAGING TO THE
CONDUCT OF CRIMINAL CASES.  SEE COBBLEDICK V. UNITED STATES, 309 U.S.
323, 324-326. 

SINCE THE PROCEDURAL ASPECTS OF LAW DEAL WITH THE PRACTICAL AFFAIRS
OF MEN AND DO NOT CONSTITUTE AN ABSTRACT SYSTEM OF DOCTRINAIRE NOTIONS,
CONGRESS HAS RECOGNIZED THE NEED OF EXCEPTIONS FOR INTERLOCUTORY ORDERS
IN CERTAIN TYPES OF PROCEEDINGS WHERE THE DAMAGE OF ERROR UNREVIEWED
BEFORE THE JUDGMENT IS DEFINITIVE AND COMPLETE, SEE COLLINS V. MILLER,
252 U.S. 364, 370, HAS BEEN DEEMED GREATER THAN THE DISRUPTION CAUSED
BY INTERMEDIATE APPEAL.  SEE 30 STAT.  544, 553 (1898), AS AMENDED, 11
U.S.C. SEC. 47 (BANKRUPTCY PROCEEDINGS); 28 U.S.C. SEC. 1252 (ORDERS
INVALIDATING FEDERAL STATUTES); 28 U.S.C. SEC. 1253 (INJUNCTIONS ISSUED
OR REFUSED BY STATUTORY THREE-JUDGE COURTS); 28 U.S.C. SEC. 1292(A)(1)
(4) (INJUNCTIONS, RECEIVERSHIP, ADMIRALTY, PATENT INFRINGEMENT).  MOST
RECENTLY, IN THE INTERLOCUTORY APPEALS ACT OF 1958, 72 STAT. 1770, 28
U.S.C. SEC. 1292(B), CONGRESS EXPANDED THE LATITUDE FOR INTERMEDIATE
APPEALS IN CIVIL ACTIONS THROUGH THE DEVICE OF DISCRETIONARY
CERTIFICATION OF CONTROLLING QUESTIONS OF LAW.  SEE NOTE, 75 HARV. L.
REV. 351, 378-379.  (FN4) 

MOREOVER, THE CONCEPT OF FINALITY AS A CONDITION OF REVIEW HAS
ENCOUNTERED SITUATIONS WHICH MAKE CLEAR THAT IT NEED NOT INVITE SELF
DEFEATING JUDICIAL CONSTRUCTION.  THUS, ACCEPTANCE OF APPEAL FROM
ORDERS DEFINITIVELY DIRECTING AN IMMEDIATE TRANSFER OF PROPERTY,
ALTHOUGH AN ACCOUNTING REMAINS, FORGAY V. CONRAD, 6 HOW.  201, HAS BEEN
JUSTIFIED AS "REVIEW OF THE ADJUDICATION WHICH IS CONCLUDED BECAUSE IT
IS INDEPENDENT OF, AND UNAFFECTED BY, ANOTHER LITIGATION WITH WHICH IT
HAPPENS TO BE ENTANGLED."  RADIO STATION WOW V. JOHNSON, 326 U.S. 120,
126.  (FN5)  SIMILARLY, SO AS NOT TO FRUSTRATE THE RIGHT OF APPELLATE
REVIEW, IMMEDIATE APPEAL HAS BEEN ALLOWED FROM AN ORDER RECOGNIZED AS
COLLATERAL TO THE PRINCIPAL LITIGATION BECAUSE TOUCHING MATTERS THAT
WILL NOT "AFFECT, OR  ... BE AFFECTED BY, DECISION OF THE MERITS OF THE
...  CASE," COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541,
546, WHEN THE PRACTICAL EFFECT OF THE ORDER WILL BE IRREPARABLE BY ANY
SUBSEQUENT APPEAL.  E.G., STACK V. BOYLE, 342 U.S. 1; SWIFT & CO. V.
COMPANIA CARIBE, 339 U.S. 684, 688-689.  TO LIKE EFFECT IS RULE 54(B)
OF THE FEDERAL RULES OF CIVIL PROCEDURE WHICH, AS AMENDED IN 1961, 368
U.S., AT 1015, ALLOWS APPEALS IN MULTIPLE LITIGATION FROM AN EXPRESS
ENTRY OF "FINAL JUDGMENT AS TO ONE OR MORE BUT FEWER THAN ALL OF THE
CLAIMS OR PARTIES," BUT ONLY WHEN THE TRIAL JUDGE CERTIFIES THAT "THERE
IS NO JUST REASON FOR DELAY." 

DESPITE THESE STATUTORY EXCEPTIONS TO, AND JUDICIAL CONSTRUCTION OF,
THE REQUIREMENT OF FINALITY, "THE FINAL JUDGMENT RULE IS THE DOMINANT
RULE IN FEDERAL APPELLATE PRACTICE."  6 MOORE, FEDERAL PRACTICE (2D ED.
1953), 113.  PARTICULARLY IS THIS TRUE OF CRIMINAL PROSECUTIONS.  SEE,
E.G., PARR V. UNITED STATES, 351 U.S. 513, 518-521.  EVERY STATUTORY
EXCEPTION IS ADDRESSED EITHER IN TERMS OR BY NECESSARY OPERATION SOLELY
TO CIVIL ACTIONS.  MOREOVER, THE DELAYS AND DISRUPTIONS ATTENDANT UPON
INTERMEDIATE APPEAL ARE ESPECIALLY INIMICAL TO THE EFFECTIVE AND FAIR
ADMINISTRATION OF THE CRIMINAL LAW.  THE SIXTH AMENDMENT GUARANTEES A
SPEEDY TRIAL.  RULE 2 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
COUNSELS CONSTRUCTION OF THE RULES "TO SECURE SIMPLICITY IN PROCEDURE,
FAIRNESS IN ADMINISTRATION AND THE ELIMINATION OF UNJUSTIFIABLE EXPENSE
AND DELAY"; RULES 39(D) AND 50 ASSIGN PREFERENCE TO CRIMINAL CASES ON
BOTH TRIAL AND APPELLATE DOCKETS. 

AGAIN, THE DECISIONS ACCORDING FINALITY TO CIVIL ORDERS IN ADVANCE OF
AN ULTIMATELY CONCLUDING JUDGMENT HAVE RESTED ON FINDING A PARTICULAR
CLAIM TO BE INDEPENDENT, BECAUSE "FAIRLY SEVERABLE FROM THE CONTEXT OF
A LARGER LITIGIOUS PROCESS."  SWIFT & CO. V. COMPANIA CARIBE, SUPRA,
339 U.S., AT 689.  NO SUCH SEVERABILITY INHERES IN A MOTION SEEKING THE
SUPPRESSION OF EVIDENCE AT A FORTHCOMING TRIAL; ITS DISPOSITION, AS THE
COURT RECOGNIZED IN COGEN V. UNITED STATES, SUPRA, 278 U.S., AT 223,
"WILL NECESSARILY DETERMINE THE CONDUCT OF THE TRIAL AND MAY VITALLY
AFFECT THE RESULT."  NO LESS WHEN IT PRECEDES INDICTMENT, THE MOTION
PRESENTS AN ISSUE THAT IS INVOLVED IN AND WILL BE PART OF A CRIMINAL
PROSECUTION IN PROCESS AT THE TIME THE ORDER IS ISSUED. 

THE PRECISE QUESTION BEFORE US HAS BEEN MUCH CANVASSED IN THE LOWER
COURTS.  IT HAS NOT ONLY PRODUCED A CONFLICT AMONG THE CIRCUITS, BUT
HAS PROVOKED PRACTICAL DIFFICULTIES IN THE ADMINISTRATION OF CRIMINAL
JUSTICE AND CAUSED EXPRESSIONS OF DISSATISFACTION EVEN IN COURTS THAT
HAVE SUSTAINED AN APPEAL.  ALTHOUGH ONLY THE FOURTH AND FIFTH CIRCUITS
HAVE CLEARLY DEPARTED FROM THE SECOND CIRCUIT'S VIEW, (FN6) THE
CONSENSUS IN THE OTHERS IS FAR FROM UNWAVERING.  (FN7)  THE FIRST
CIRCUIT, FOR EXAMPLE, HAS DECLINED TO PERMIT PRETRIAL ENTERTAINMENT OF
ANY SUPPRESSION MOTIONS OTHER THAN THOSE EXPLICITLY AUTHORIZED BY THE
LANGUAGE OF RULE 41(E).  CENTRACCHIO V. GARRITY, 198 F.2D 382, 386-389
(1952); ACCORD, E.G., BENES V. CANARY, 224 F.2D 470, 472 (C.A. 6TH CIR.
1955).  AND SEE IN RE FRIED, 161 F.2D 453, 465-466 (C.A.2D CIR. 1947)
(OPINIONS OF L. HAND AND A. HAND, JJ.).  THESE OPINIONS MANIFEST A
DISINCLINATION TO TREAT AS SEPARATE AND FINAL RULINGS ON THE
ADMISSIBILITY OF EVIDENCE WHICH DEPEND ON FACTUAL CONTENTIONS THAT MAY
BE MORE APPROPRIATELY RESOLVED AT A PLENARY TRIAL.  SIMILARLY, A
CALIFORNIA DISTRICT COURT HAS RECENTLY DISMISSED FOR WANT OF EQUITY A
PRE-INDICTMENT BILL TO SUPPRESS, ON THE GROUND THAT, AT THE TIME RELIEF
WOULD ISSUE, THERE WAS AN ADEQUATE REMEDY AT LAW BY MOTION IN THE
CRIMINAL TRIAL; AND THE NINTH CIRCUIT REFUSED AN APPLICATION FOR
PREROGATIVE WRITS.  RODGERS V. UNITED STATES, 158 F. SUPP. 670 (1958);
ID., AT 684 NOTE.  SEE ALSO EASTUS V. BRADSHAW, 94 F.2D 788 (C.A. 5TH
CIR. 1938).  IN THE THIRD CIRCUIT, WHICH UP TO NOW HAS AGREED WITH THE
SECOND, THE LATEST OPINION ON THE SUBJECT EXPRESSES DOUBTS AS TO THE
VALIDITY OF ITS PRECEDENTS.  UNITED STATES V. MURPHY, 290 F.2D 573, 575
N. 2 (1961). 

WE SHOULD DECIDE THE QUESTION HERE - WE ARE FREE TO DO SO - WITH DUE
REGARD TO HISTORIC PRINCIPLE AND TO THE PRACTICALITIES IN THE
ADMINISTRATION OF CRIMINAL JUSTICE.  AN ORDER GRANTING OR DENYING A PRE
INDICTMENT MOTION TO SUPPRESS DOES NOT FALL WITHIN ANY CLASS OF
INDEPENDENT PROCEEDINGS OTHERWISE RECOGNIZED BY THIS COURT, AND THERE
IS EVERY PRACTICAL REASON FOR DENYING IT SUCH RECOGNITION.  TO REGARD
SUCH A DISJOINTED RULING ON THE ADMISSIBILITY OF A POTENTIAL ITEM OF
EVIDENCE IN A FORTHCOMING TRIAL AS THE TERMINATION OF AN INDEPENDENT
PROCEEDING, WITH FULL PANOPLY OF APPEAL AND ATTENDANT STAY, ENTAILS
SERIOUS DISRUPTION TO THE CONDUCT OF A CRIMINAL TRIAL.  (FN8) THE
FORTUITY OF A PREINDICTMENT MOTION MAY MAKE OF APPEAL AN INSTRUMENT OF
HARASSMENT, JEOPARDIZING BY DELAY THE AVAILABILITY OF OTHER ESSENTIAL
EVIDENCE.  SEE RODGERS V. UNITED STATES, SUPRA, 158 F. SUPP., AT 673 N.
1.  FURTHERMORE, AS CASES IN THE SECOND CIRCUIT MAKE CLEAR, APPELLATE
INTERVENTION MAKES FOR TRUNCATED PRESENTATION OF THE ISSUE OF
ADMISSIBILITY, BECAUSE THE LEGALITY OF THE SEARCH TOO OFTEN CANNOT
TRULY BE DETERMINED UNTIL THE EVIDENCE AT THE TRIAL HAS BROUGHT ALL
CIRCUMSTANCES TO LIGHT.  SEE IN RE MILBURNE, 77 F.2D 310, 311 (1935);
GRANT V. UNITED STATES, 291 F.2D 227, 229 (1961).  (FN9) 

NOR ARE THE CONSIDERATIONS AGAINST APPEALABILITY MADE LESS COMPELLING
AS TO ORDERS GRANTING MOTIONS TO SUPPRESS, BY THE FACT THAT THE
GOVERNMENT HAS NO LATER RIGHT TO APPEAL WHEN AND IF THE LOSS OF
EVIDENCE FORCES DISMISSAL OF ITS CASE.  UNITED STATES V. PACK, 247 F.2D
168 (C.A. 3D CIR. 1957); UMBRIACO V. UNITED STATES, 258 F.2D 625, 626
(C.A. 9TH CIR. 1958).  AS THE NINTH CIRCUIT SAID OF THIS CIRCUMSTANCE,
THE GOVERNMENT IS NO MORE DISADVANTAGED THAN IN THE CASE OF AN ADVERSE
RULING ON THE EVIDENCE DURING TRIAL.  UNITED STATES V. ROSENWASSER, 145
F.2D 1015, 1018 (1944).  WHAT DISADVANTAGE THERE BE SPRINGS FROM THE
HISTORIC POLICY, OVER AND ABOVE THE CONSTITUTIONAL PROTECTION AGAINST
DOUBLE JEOPARDY, THAT DENIES THE GOVERNMENT THE RIGHT OF APPEAL IN
CRIMINAL CASES SAVE AS EXPRESSLY AUTHORIZED BY STATUTE.  UNITED STATES
V. SANGES, 144 U.S. 310; UNITED STATES V. DICKINSON, 213 U.S. 92, 102
103; CARROLL V. UNITED STATES, 354 U.S. 394, 400-403 AND N. 9-12.  NO
SUCH EXPRESSION APPEARS IN 28 U.S.C. SEC. 1291, AND THE GOVERNMENT'S
ONLY RIGHT OF APPEAL, GIVEN BY THE CRIMINAL APPEALS ACT OF 1907, 34
STAT. 1246, NOW 18 U.S.C. SEC. 3731, IS CONFINED TO NARROWLY DEFINED
SITUATIONS NOT RELEVANT TO OUR PROBLEM.  ALLOWANCE OF ANY FURTHER RIGHT
MUST BE SOUGHT FROM CONGRESS AND NOT THIS COURT.  CARROLL V. UNITED
STATES, SUPRA, 354 U.S., AT 407-408. 

IN THE NARCOTIC CONTROL ACT OF 1956, SEC. 201, 70 STAT. 567, 573, 18
U.S.C. SEC. 1404, CONGRESS DID GRANT THE GOVERNMENT THE RIGHT TO APPEAL
FROM ORDERS GRANTING PRETRIAL MOTIONS TO SUPPRESS THE USE OF SEIZED
NARCOTICS AS EVIDENCE; BUT, THOUGH INVITED TO DO SO, (FN10) IT DECLINED
TO EXTEND THIS RIGHT TO ALL SUPPRESSION ORDERS.  SINCE THEN, EACH
CONGRESS HAS HAD BEFORE IT BILLS TO ACCOMPLISH THAT EXTENSION, (FN11)
AT LEAST ONE OF WHICH HAS BEEN REPORTED FAVORABLY.  (FN12)  AS YET,
HOWEVER, NONE HAS BEEN ADOPTED.    WE HOLD, ACCORDINGLY, THAT THE MERE
CIRCUMSTANCE OF A PRE-INDICTMENT MOTION DOES NOT TRANSMUTE THE ENSUING
EVIDENTIARY RULING INTO AN INDEPENDENT PROCEEDING BEGETTING FINALITY
EVEN FOR PURPOSES OF APPEALABILITY.  PRESENTATIONS BEFORE A UNITED
STATES COMMISSIONER, GO-BART CO. V. UNITED STATES, 282 U.S. 344, 352
354, AS WELL AS BEFORE A GRAND JURY, COBBLEDICK V. UNITED STATES, 309
U.S. 323, 327, ARE PARTS OF THE FEDERAL PROSECUTORIAL SYSTEM LEADING TO
A CRIMINAL TRIAL.  ORDERS GRANTING OR DENYING SUPPRESSION IN THE WAKE
OF SUCH PROCEEDINGS ARE TRULY INTERLOCUTORY, FOR THE CRIMINAL TRIAL IS
THEN FAIRLY IN TRAIN.  WHEN AT THE TIME OF RULING THERE IS OUTSTANDING
A COMPLAINT, OR A DETENTION OR RELEASE ON BAIL FOLLOWING ARREST, OR AN
ARRAIGNMENT, INFORMATION, OR INDICTMENT - IN EACH SUCH CASE THE ORDER
ON A SUPPRESSION MOTION MUST BE TREATED AS "BUT A STEP IN THE CRIMINAL
CASE PRELIMINARY TO THE TRIAL THEREOF."  COGEN V. UNITED STATES, 278
U.S. 221, 227.  ONLY IF THE MOTION IS SOLELY FOR RETURN OF PROPERTY AND
IS IN NO WAY TIED TO A CRIMINAL PROSECUTION IN ESSE AGAINST THE MOVANT
CAN THE PROCEEDINGS BE REGARDED AS INDEPENDENT.  IBID.; SEE CARROLL V.
UNITED STATES, 354 U.S. 394, 404 N. 17; IN RE BRENNER, 6 F.2D 425
(C.A.2D CIR. 1925). 

AN ALTERNATIVE GROUND FOR APPEALABILITY IN THE KOENIG CASE, LIKEWISE
CULLED FROM DICTA IN SOME OF OUR DECISIONS, WOULD ASSIGN INDEPENDENCE
TO THE SUPPRESSION ORDER BECAUSE RENDERED IN A DIFFERENT DISTRICT FROM
THAT OF TRIAL.  DIER V. BANTON, 262 U.S. 147, THE ONLY HOLDING POINTED
TO, IS CLEARLY INAPPOSITE; IT ALLOWED AN APPEAL FROM AN ORDER BY A
FEDERAL BANKRUPTCY COURT PERMITTING DELIVERY OF A BANKRUPT'S PAPERS TO
STATE PROSECUTING OFFICIALS.  CF. REA V. UNITED STATES, 350 U.S. 214;
WILSON V. SCHNETTLER, 365 U.S. 381.  THERE IS A DECISION IN THE SECOND
CIRCUIT, UNITED STATES V. KLAPHOLZ, 230 F.2D 494 (1956), ALLOWING THE
GOVERNMENT AN APPEAL FROM AN ORDER GRANTING A POST-INDICTMENT MOTION TO
SUPPRESS, APPARENTLY FOR THE SINGLE REASON THAT THE MOTION WAS FILED IN
THE DISTRICT OF SEIZURE RATHER THAN OF TRIAL; BUT THE CASE WAS SOON
THEREAFTER TAKEN BY A DISTRICT COURT TO HAVE COUNSELED DECLINING
JURISDICTION OF SUCH MOTIONS FOR REASONS PERSUASIVE AGAINST ALLOWING
THE APPEAL:  "THIS COURSE WILL AVOID A NEEDLESS DUPLICATION OF EFFORT
BY TWO COURTS AND PROVIDE A MORE EXPEDITIOUS RESOLUTION OF THE
CONTROVERSY BESIDES AVOIDING THE RISK OF DETERMINING PREMATURELY AND
INADEQUATELY THE ADMISSIBILITY OF EVIDENCE AT THE TRIAL  ...  .  A
PIECEMEAL ADJUDICATION SUCH AS THAT WHICH WOULD NECESSARILY FOLLOW FROM
A DISPOSITION OF THE MOTION HERE MIGHT CONCEIVABLY RESULT IN PREJUDICE
EITHER TO THE GOVERNMENT OR THE DEFENDANTS, OR BOTH."  UNITED STATES V.
LESTER, 21 F.R.D. 30, 31 (D.C.S.D.N.Y. 1957).  RULE 41(E), OF COURSE,
SPECIFICALLY PROVIDES FOR MAKING OF THE MOTION IN THE DISTRICT OF
SEIZURE.  ON A SUMMARY HEARING, HOWEVER, THE RULING THERE IS LIKELY
ALWAYS TO BE TENTATIVE.  WE THINK IT ACCORDS MOST SATISFACTORILY WITH
SOUND ADMINISTRATION OF THE RULES TO TREAT SUCH RULINGS AS
INTERLOCUTORY. 

THE JUDGMENT OF THE COURT OF APPEALS IN NO. 21 IS VACATED AND THE
CAUSE IS REMANDED WITH INSTRUCTIONS TO DISMISS THE APPEAL.  IN NO. 93,
THE JUDGMENT IS AFFIRMED.  IT IS SO ORDERED. 

FN1  RULE 41(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES: 

"A PERSON AGGRIEVED BY AN UNLAWFUL SEARCH AND SEIZURE MAY MOVE THE
DISTRICT COURT FOR THE DISTRICT IN WHICH THE PROPERTY WAS SEIZED FOR
THE RETURN OF THE PROPERTY AND TO SUPPRESS FOR USE AS EVIDENCE ANYTHING
SO OBTAINED ON THE GROUND THAT (1) THE PROPERTY WAS ILLEGALLY SEIZED
WITHOUT WARRANT, OR (2) THE WARRANT IS INSUFFICIENT ON ITS FACE, OR (3)
THE PROPERTY SEIZED IS NOT THAT DESCRIBED IN THE WARRANT, OR (4) THERE
WAS NOT PROBABLE CAUSE FOR BELIEVING THE EXISTENCE OF THE GROUNDS ON
WHICH THE WARRANT WAS ISSUED, OR (5) THE WARRANT WAS ILLEGALLY
EXECUTED.  THE JUDGE SHALL RECEIVE EVIDENCE ON ANY ISSUE OF FACT
NECESSARY TO THE DECISION OF THE MOTION.  IF THE MOTION IS GRANTED THE
PROPERTY SHALL BE RESTORED UNLESS OTHERWISE SUBJECT TO LAWFUL DETENTION
AND IT SHALL NOT BE ADMISSIBLE IN EVIDENCE AT ANY HEARING OR TRIAL. 
THE MOTION TO SUPPRESS EVIDENCE MAY ALSO BE MADE IN THE DISTRICT WHERE
THE TRIAL IS TO BE HAD.  THE MOTION SHALL BE MADE BEFORE TRIAL OR
HEARING UNLESS OPPORTUNITY THEREFOR DID NOT EXIST OR THE DEFENDANT WAS
NOT AWARE OF THE GROUNDS FOR THE MOTION, BUT THE COURT IN ITS
DISCRETION MAY ENTERTAIN THE MOTION AT THE TRIAL OR HEARING." 

FN2  PERLMAN V. UNITED STATES, 247 U.S. 7; BURDEAU V. MCDOWELL, 256
U.S. 465.  SEE ALSO GO-BART CO. V. UNITED STATES, 282 U.S. 344, 356. 

FN3  SEE COGEN V. UNITED STATES, 278 U.S. 221, 225; COBBLEDICK V.
UNITED STATES, 309 U.S. 323, 328-329 AND N. 6; CARROLL V. UNITED
STATES, 354 U.S. 394, 403. 

FN4  IN ADDITION TO CAREFUL SPECIFICATION OF THESE PARTICULAR ORDERS,
CONGRESS HAS SINCE 1789 DECLARED THE EXISTENCE OF AUTHORITY IN THE
FEDERAL COURTS 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. SEC. 1651, DERIVED FROM FIRST JUDICIARY
ACT, SECS. 13, 14, 1 STAT. 73, 80, 81; BUT THE AUTHORITY HAS BEEN MOST
SPARINGLY EXERCISED, WHEN NO OTHER REMEDY WILL SUFFICE, "TO CONFINE AN
INFERIOR COURT TO A LAWFUL EXERCISE OF ITS PRESCRIBED JURISDICTION OR
TO COMPEL IT TO EXERCISE ITS AUTHORITY WHEN IT IS ITS DUTY TO DO SO." 
ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21, 26. 

FN5  IN EMINENT-DOMAIN PROCEEDINGS, HOWEVER, WHERE THE ISSUE OF
REASONABLE COMPENSATION CANNOT BE THUS SEPARATED FROM THE LAWFULNESS OF
THE TAKING, THE COURT HAS DENIED INDEPENDENT REVIEW TO TRANSFER
ORDERS.  CATLIN V. UNITED STATES, 324 U.S. 229; CF. REPUBLIC NATURAL
GAS CO. V. OKLAHOMA, 334 U.S. 62, 71-72. 

FN6  FOURTH CIRCUIT:  UNITED STATES V. WILLIAMS, 227 F.2D 149
(1955). 

FIFTH CIRCUIT:  ZACARIAS V. UNITED STATES, 261 F.2D 416 (1958); SABA
V. UNITED STATES, 282 F.2D 255 (1960). 

IN THE DISTRICT OF COLUMBIA CIRCUIT, THE DECISIONS APPEAR TO HAVE
INVERTED THE SECOND CIRCUIT RULE:  PRE-INDICTMENT MOTIONS HAVE BEEN
HELD INTERLOCUTORY, NELSON V. UNITED STATES, 93 U.S. APP. D.C. 14, 24
26, 208 F.2D 505, 515-517 (1953), WHILE POST-INDICTMENT MOTIONS HAVE
BEEN TREATED AS INDEPENDENT, UNITED STATES V. CEFARATTI, 91 U.S. APP.
D.C. 297, 202 F.2D 13 (1952).  BUT SEE UNITED STATES V. STEPHENSON, 96
U.S. APP. D.C. 44, 223 F.2D 336 (1955). 

FN7  FIRST CIRCUIT:  CENTRACCHIO V. GARRITY, 198 F.2D 382, 385 (1952);
CHIEFTAIN PONTIAC CORP. V. JULIAN, 209 F.2D 657, 659 (1954) (BY
IMPLICATION). 

SECOND CIRCUIT:  UNITED STATES V. POLLER, 43 F.2D 911 (1930); IN RE
MILBURNE, 77 F.2D 310 (1935); UNITED STATES V. EDELSON, 83 F.2D 404
(1936); CHENG WAI V. UNITED STATES, 125 F.2D 915 (1942); LAGOW V.
UNITED STATES, 159 F.2D 245 (1946); IN RE FRIED, 161 F.2D 453 (1947);
LAPIDES V. UNITED STATES, 215 F.2D 253 (1954); RUSSO V. UNITED STATES,
241 F.2D 285 (1957); CARLO V. UNITED STATES, 286 F.2D 841 (1961); GRANT
V. UNITED STATES, 291 F.2D 227 (1961); GREENE V. UNITED STATES, 296
F.2D 841 (1961). 

THIRD CIRCUIT:  IN RE SANA LABORATORIES, 115 F.2D 717 (1940); UNITED
STATES V. BIANCO, 189 F.2D 716, 717 N. 2 (1951); UNITED STATES V.
SINEIRO, 190 F.2D 397 (1951); UNITED STATES V. MURPHY, 290 F.2D 573
(1961). 

SIXTH CIRCUIT:  BENES V. CANARY, 224 F.2D 470 (1955). 

SEVENTH CIRCUIT:  SOCONY MOBIL OIL CO. V. UNITED STATES, 275 F.2D 227
(1960) (BY IMPLICATION) (SEMBLE). 

EIGHTH CIRCUIT:  GOODMAN V. LANE, 48 F.2D 32 (1931). 

NINTH CIRCUIT:  FREEMAN V. UNITED STATES, 160 F.2D 69 (1946); WELDON
V. UNITED STATES, 196 F.2D 874, 875 (1952); HOFFRITZ V. UNITED STATES,
240 F.2D 109 (1956).  BUT SEE RODGERS V. UNITED STATES, 158 F. SUPP.
670 (D.C.S.D. CAL.), MANDAMUS AND PROHIBITION DENIED IN ID., AT 684
NOTE (C.A. 9TH CIR. 1958). 

FN8  IT IS EVIDENT, FOR EXAMPLE, THAT THE FORM OF INDEPENDENCE HAS
BEEN AVAILED OF AN OCCASION TO SEEK ADVANTAGES CONFERRED BY THE RULES
GOVERNING CIVIL PROCEDURE, TO THE PREJUDICE OF PROPER ADMINISTRATION OF
CRIMINAL PROCEEDINGS.  E.G., GREENE V. UNITED STATES, 296 F.2D 841, 843
844 (C.A.2D CIR. 1961) (EXTENDED TIME FOR APPEAL); RUSSO V. UNITED
STATES, 241 F.2D 285, 287-288 (C.A.2D CIR. 1957) (EXPANDED DISCOVERY). 

FN9  ALTHOUGH RULE 41(E), SUPRA, NOTE 1, CODIFIES PRIOR PRACTICE IN
PREFERRING THAT THE MOTION BE RAISED BEFORE TRIAL, AND PROVIDES FOR THE
TAKING OF EVIDENCE ON DISPUTED FACTUAL ISSUES, THE USUAL PROCEDURE
FOLLOWED AT THIS EARLY STAGE IS TO DECIDE THE QUESTION ON AFFIDAVITS
ALONE; IN ADDITION, IT HAS LONG BEEN ACCEPTED THAT THE POINT CAN, AND
ON OCCASION MUST, BE RENEWED AT THE TRIAL TO PRESERVE IT FOR ULTIMATE
APPEAL.  GOULED V. UNITED STATES, 255 U.S. 298, 312-313; LAWN V. UNITED
STATES, 355 U.S. 339, 353-354.  WE DO NO MORE THAN RECOGNIZE THAT
ORDINARILY THE DISTRICT COURTS WILL WISH TO RESERVE FINAL RULING UNTIL
THE CRIMINAL TRIAL. 

FN10  ILLICIT NARCOTICS TRAFFIC - HEARINGS BEFORE THE SUBCOMMITTEE ON
IMPROVEMENTS IN THE FEDERAL CRIMINAL CODE OF THE SENATE COMMITTEE ON
THE JUDICIARY, 84TH CONG., 1ST SESS. 725-726 (1955); NARCOTIC CONTROL
ACT OF 1956 - ID., 2D SESS. 9 (1956). 

FN11  H.R. 9364 AND S. 3423, 84TH CONG., 2D SESS. (1956); H.R. 263
AND H.R. 4753, 85TH CONG., 1ST SESS. (1957); S. 1721, 86TH CONG., 1ST
SESS. (1959); SEE 105 CONG. REC. 6190 (REMARKS OF SENATOR KEATING). 

FN12  S. REP. NO. 1478, 85TH CONG., 2D SESS. 14-17 (1958).  AS IN 18
U.S.C. SECS. 1404 AND 3731, THE SUBCOMMITTEE'S PROPOSED BILL WOULD HAVE
PROVIDED SAFEGUARDS AGAINST THE TAKING OF HARASSING OR FRIVOLOUS
APPEALS AND WOULD HAVE ENSURED EXPEDITIOUS REVIEW. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE STEWART CONCUR
IN THE RESULT. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE DISPOSITION OF THESE
CASES. 
..END :













UNITED GAS PIPE LINE CO. V. IDEAL CEMENT CO. 369 U.S. 134 


NO. 61.  ARGUED DECEMBER 13, 1961 - DECIDED MARCH 19, 1962 - REPORTED
BELOW:  282 F.2D 574. 


ON APPEAL FROM A JUDGMENT OF A FEDERAL DISTRICT COURT IN A SUIT BASED
ON DIVERSITY OF CITIZENSHIP, THE COURT OF APPEALS HELD THAT TAXES
COLLECTED BY THE CITY OF MOBILE, ALA., RELATIVE TO SALES OF NATURAL GAS
WERE INVALID UNDER THE COMMERCE CLAUSE.  IN DOING SO, IT RELIED UPON
ITS OWN INTERPRETATION OF THE CITY'S LICENSE CODE AND RELEVANT
PROVISIONS OF STATE STATUTES, THOUGH THERE HAD BEEN NO RELEVANT
INTERPRETATION OF THEM BY THE STATE COURTS AND DECLARATORY JUDGMENT
PROCEEDINGS WERE AVAILABLE IN THE STATE COURTS.  ON APPEAL TO THIS
COURT, HELD: 

1.  THIS COURT HAS JURISDICTION OF THIS APPEAL UNDER 28 U.S.C. SEC.
1254(2).  P. 135. 

2.  THE JUDGMENT OF THE COURT OF APPEALS IS VACATED TO PERMIT A
CONSTRUCTION OF THE LICENSE CODE OF MOBILE, SO FAR AS RELEVANT TO THIS
LITIGATION, TO BE SOUGHT WITH EVERY EXPEDITION IN THE STATE COURTS. 
PP. 135-136. 

UNITED GAS PIPE LINE CO. V. IDEAL CEMENT CO. ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THIS IS AN APPEAL FROM THE COURT OF APPEALS' REVERSAL OF A SUMMARY
JUDGMENT ENTERED FOR THE APPELLANT IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA.  THE SUIT, BASED ON DIVERSITY OF
CITIZENSHIP, SOUGHT CONTRACTUAL REIMBURSEMENT OF TAXES PAID TO THE CITY
OF MOBILE RELATIVE TO SALES OF NATURAL GAS TO THE APPELLEES.  THEY
DEFENDED ON THE GROUND THAT THE CONTRACTS CONTEMPLATED REIMBURSEMENT
ONLY OF VALID TAX PAYMENTS, AND THAT THE LICENSE CODE OF THE CITY OF
MOBILE, SEC. 1, PAR, 193 (1955), UNDER WHICH THE TAX WAS EXACTED AND
PAID, WAS INVALID UNDER THE COMMERCE CLAUSE OF THE UNITED STATES
CONSTITUTION.  THE COURT OF APPEALS SUSTAINED THIS CONTENTION, BY
INTERPRETING BOTH THE PRIMARY AND ENFORCEMENT PROVISIONS OF THE LICENSE
CODE AND ITS SURROUNDING STATE LEGISLATION AS OPERATING NOT TO TAX A
SEPARABLE LOCAL PORTION OF INTERSTATE COMMERCE BUT AS A MEANS OF
LICENSING APPELLANT'S RIGHT OF ENTRY INTO THE CITY FROM WITHOUT THE
STATE.  282 F.2D 574, 580.  WE POSTPONED DETERMINATION OF OUR
JURISDICTION TO CONSIDERATION OF THE MERITS, 366 U.S. 916, AND NOW FIND
THAT THE CASE IS PROPERLY HERE UNDER 28 U.S.C. SEC. 1254(2). 

THE INTERPRETATION OF STATE LAW BY THE COURT OF APPEALS, IN AN
OPINION BY ITS ALABAMA MEMBER, WAS RENDERED IN ADVANCE OF CONSTRUCTION
OF THE LICENSE CODE BY THE COURTS OF THE STATE, WHICH ALONE, OF COURSE,
CAN DEFINE ITS AUTHORITATIVE MEANING.  WE OUGHT NOT, CERTAINLY ON THIS
RECORD, EITHER ACCEPT THE COURT OF APPEALS' CONSTRUCTION OR, ON AN
INDEPENDENT CONSIDERATION, REJECT WHAT THE ALABAMA SUPREME COURT MAY
LATER DEFINITIVELY APPROVE.  THE AVAILABILITY OF APPROPRIATE
DECLARATORY-JUDGMENT PROCEEDINGS UNDER ALA. CODE, TIT. 7, SECS. 156-168
(1940), AVOIDS THIS UNSATISFACTORY DILEMMA.  WISE JUDICIAL
ADMINISTRATION IN THIS CASE COUNSELS THAT DECISION OF THE FEDERAL
QUESTION BE DEFERRED UNTIL THE POTENTIALLY CONTROLLING STATE-LAW ISSUE
IS AUTHORITATIVELY PUT TO REST.  SEE LEITER MINERALS, INC., V. UNITED
STATES, 352 U.S. 220, 228-229.  ACCORDINGLY, THE JUDGMENT OF THE COURT
OF APPEALS IS VACATED TO PERMIT A CONSTRUCTION OF THE LICENSE CODE OF
THE CITY OF MOBILE, SO FAR AS RELEVANT TO THIS LITIGATION, TO BE SOUGHT
WITH EVERY EXPEDITION IN THE STATE COURTS.  IT IS SO ORDERED. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE DISPOSITION OF THIS CASE. 

MR. JUSTICE DOUGLAS. 

THIS CASE SHOULD BE DISPOSED OF HERE; THE LONG-DRAWN-OUT LITIGATION*
FOISTED ON THE PARTIES BY THE COURT IS NEEDLESS.  NO MATTER HOW THE
LOCAL ORDINANCE IS CONSTRUED THE TAX IS CONSTITUTIONAL. 

*THE PRACTICE OF REMITTING PARTIES WHO SUE IN COURT TO AN
ADMINISTRATIVE REMEDY (SEE, E.G., PENNSYLVANIA R. CO. V. UNITED STATES,
363 U.S. 202) OR OF REMITTING THOSE WHO SUE IN A FEDERAL COURT TO A
STATE COURT (CLAY V. SUN INSURANCE OFFICE, 363 U.S. 207; CLARK, FEDERAL
PROCEDURAL REFORM AND STATES' RIGHTS, 40 TEX. L. REV. 211) PLACES A
FINANCIAL BURDEN ON LITIGANTS, WHICH CAN BE AFFORDED ONLY BY THOSE WHO
CAN TAKE THE COST AS A TAX DEDUCTION OR GET REIMBURSEMENT THROUGH
INCREASED RATES.   FOR A CASE WHERE THE PARTIES AT THE END OF 14 YEARS
WERE STILL LITIGATING A $7,000 (APPROX.)  CLAIM AFTER STARTING IN ONE
COURT, SEE PENNSYLVANIA R. CO. V. UNITED STATES, SUPRA. 

IN GARDNER, THE ADMINISTRATIVE PROCESS, LEGAL INSTITUTIONS TODAY AND
TOMORROW (1959), PP. 139-140, IT WAS SAID: 

"ANYONE WHO CONSIDERS JUDICIAL REVIEW OF AGENCY ACTION MUST ALLOW
ABOUT A YEAR IF HE HAS ACCESS TO DIRECT REVIEW BY A COURT OF APPEALS
AND ABOUT TWO YEARS IF HE MUST FILE IN A DISTRICT COURT AND THEN CARRY
THE CONTROVERSY TO THE COURT OF APPEALS.  IF A CERTIORARI QUESTION
SHOULD DEVELOP WHICH WOULD WARRANT SUPREME COURT REVIEW, ANOTHER YEAR
SHOULD BE ADDED.  IF THE RESULT OF THE REVIEW SHOULD BE TO REQUIRE
FURTHER AGENCY PROCEEDINGS, YET ANOTHER YEAR OR SO MUST BE ADDED. 
EXCEPT FOR THE LITIGANT WHO ADVANTAGES BY DELAY, NOT MANY
ADMINISTRATIVE ISSUES WARRANT AN INVESTMENT OF TIME SUCH AS THIS.  IN
PROBABLY A MAJORITY OF THE CIRCUMSTANCES, IT WOULD BE SOUNDER BUSINESS
PRACTICE TO ADJUST AT ONCE TO THE AGENCY DECISION AND GO ON FROM THERE,
RATHER THAN TO ENDURE SEVERAL YEARS OF UNCERTAINTY IN ORDER TO TRY TO
IMPROVE THE RESULT. 

"THE MATTER OF EXPENSE IS CLOSELY RELATED TO THAT OF DELAY.  IT IS
NOT POSSIBLE TO BE PRECISE, AND SURELY IT IS NOT POLITE TO MENTION
MONEY.  YET NONE CAN DISCUSS REALISTICALLY JUDICIAL REVIEW UNLESS HE
RECOGNIZES THAT AN ISSUE OF AVERAGE COMPLEXITY CANNOT ADEQUATELY BE
CARRIED TO THE COURTS EXCEPT AT A COST WHICH WILL RANGE UPWARD FROM
$5,000."  SEE ALSO LANDIS, REPORT ON REGULATORY AGENCIES TO THE
PRESIDENT-ELECT (1960), PP. 5-13. 

THE COST OF PRINTING RECORDS FOR THIS COURT IS NOW $3.80 A PAGE. 

CONGRESS UNDER THE NATURAL GAS ACT, AS AMENDED, WOULD HAVE THE
AUTHORITY TO PREVENT INTERSTATE PIPELINES FROM DELIVERING ANY GAS FOR
INDUSTRIAL USE.  FEDERAL POWER COMM'N V. TRANSCONTINENTAL GAS PIPE LINE
CORP., 365 U.S. 1.  YET ONCE THE INTERSTATE MOVEMENT COMMENCES, THE
LINE BETWEEN PERMISSIBLE AND IMPERMISSIBLE LOCAL REGULATION IS NO
LONGER A PUZZLE. 

UNITED IS AN INTERSTATE PIPELINE COMPANY THAT BRINGS NATURAL GAS INTO
ALABAMA AND SUPPLIES IT IN THE CITY OF MOBILE TO A DISTRIBUTOR, MOBILE
GAS.  UNITED DELIVERS GAS TO MOBILE GAS AT THREE STATIONS NOT FOR
RESALE, BUT FOR DELIVERY TO APPELLEES UNDER CONTRACTS BETWEEN APPELLANT
AND APPELLEES.  THE GAS, WHEN DELIVERED TO MOBILE GAS, IS AT A LOWER
PRESSURE THAN WHEN IT ENTERS THE STATE.  WHEN MOBILE GAS DELIVERS IT TO
THE INDUSTRIAL CUSTOMERS HERE INVOLVED, THE GAS IS AT A STILL LOWER
PRESSURE.  THE CASE IS THEREFORE ON ALL FOURS WITH EAST OHIO GAS CO. V.
TAX COMM'N, 283 U.S. 465.  IN SPEAKING OF THE DELIVERY OF GAS AT A
REDUCED PRESSURE WITHIN OHIO BY AN INTERSTATE CARRIER, THE COURT SAID
THAT THE GAS WAS THEN: 

"DIVIDED INTO THE MANY THOUSAND RELATIVELY TINY STREAMS THAT ENTER
THE SMALL SERVICE LINES CONNECTING SUCH MAINS WITH THE PIPES ON THE
CONSUMERS' PREMISES.  SO SEGREGATED THE GAS IN SUCH SERVICE LINES AND
PIPES REMAINS IN READINESS OR MOVES FORWARD TO SERVE AS NEEDED.  THE
TREATMENT AND DIVISION OF THE LARGE COMPRESSED VOLUME OF GAS IS LIKE
THE BREAKING OF AN ORIGINAL PACKAGE, AFTER SHIPMENT IN INTERSTATE
COMMERCE, IN ORDER THAT ITS CONTENTS MAY BE TREATED, PREPARED FOR SALE
AND SOLD AT RETAIL  ...  . IT FOLLOWS THAT THE FURNISHING OF GAS TO
CONSUMERS IN OHIO MUNICIPALITIES BY MEANS OF DISTRIBUTION PLANTS TO
SUPPLY THE GAS SUITABLY FOR THE SERVICE FOR WHICH IT IS INTENDED IS NOT
INTERSTATE COMMERCE BUT A BUSINESS OF PURELY LOCAL CONCERN EXCLUSIVELY
WITHIN THE JURISDICTION OF THE STATE."  ID., AT 471. 

HERE TOO THE PACKAGE IS BROKEN ON DELIVERY OF THE GAS INTRASTATE TO
MOBILE GAS, THE DISTRIBUTOR, AT A REDUCED PRESSURE. 

IT MATTERS NOT THAT THE CITY OF MOBILE CALLS THE TAX LEVIED HERE A
"LICENSE TAX."  IN INTERSTATE PIPE LINE CO. V. STONE, 337 U.S. 662,
MISSISSIPPI LEVIED A "PRIVILEGE" TAX ON THE GROSS RECEIPTS OF A
PIPELINE THAT WAS BRINGING OIL FROM MISSISSIPPI FIELDS TO LOADING RACKS
IN THAT STATE, WHERE THE OIL WAS PUMPED INTO RAILROAD CARS FOR SHIPMENT
OUT OF STATE. 

MR. JUSTICE RUTLEDGE, SPEAKING FOR HIMSELF AND THREE OTHERS, SAID: 

"SINCE ALL THE ACTIVITIES UPON WHICH THE TAX IS IMPOSED ARE CARRIED
ON IN MISSISSIPPI, THERE IS NO DUE PROCESS OBJECTION TO THE TAX.  THE
TAX DOES NOT DISCRIMINATE AGAINST INTERSTATE COMMERCE IN FAVOR OF
COMPETING INTRASTATE COMMERCE OF LIKE CHARACTER.  THE NATURE OF THE
SUBJECT OF TAXATION MAKES APPORTIONMENT UNNECESSARY; THERE IS NO
ATTEMPT TO TAX INTERSTATE ACTIVITY CARRIED ON OUTSIDE MISSISSIPPI'S
BORDERS.  NO OTHER STATE CAN REPEAT THE TAX.  FOR THESE REASONS THE
COMMERCE CLAUSE DOES NOT INVALIDATE THIS TAX."  ID., AT 667-668. 

MR. JUSTICE BURTON, WHO ALSO JOINED IN THE JUDGMENT, APPROVED THE TAX
FOR THE FOLLOWING REASON: "I CONCUR IN THE JUDGMENT SOLELY ON THE
GROUND THAT THE TAX IMPOSED BY THE STATE OF MISSISSIPPI WAS A TAX ON
THE PRIVILEGE OF OPERATING A PIPE LINE FOR TRANSPORTING OIL IN
MISSISSIPPI IN INTRASTATE COMMERCE AND THAT, AS SUCH, IT WAS A VALID
TAX."  ID., AT 668. 

IN SOUTHERN NATURAL GAS CORP. V. ALABAMA, 301 U.S. 148, AN INTERSTATE
PIPELINE COMPANY MADE DELIVERIES IN ALABAMA TO THREE DISTRIBUTORS AND
ONE INDUSTRIAL USER.  THESE ACTIVITIES WERE HELD TO BE LOCAL, ON WHICH
A NONDISCRIMINATORY FRANCHISE TAX COULD BE LEVIED.  IN PANHANDLE
EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMM'N, 332 U.S. 507, 514,
DIRECT SALES BY INTERSTATE PIPELINES TO LOCAL CONSUMERS (AS
DISTINGUISHED FROM DELIVERIES TO LOCAL DISTRIBUTING COMPANIES FOR
RESALE) WERE HELD TO BE SUBJECT TO STATE REGULATION.  SPEAKING OF THE
NATURAL GAS ACT, WE SAID: 

"CONGRESS, IT IS TRUE, OCCUPIED A FIELD.  BUT IT WAS METICULOUS TO
TAKE IN ONLY TERRITORY WHICH THIS COURT HAD HELD THE STATES COULD NOT
REACH.  THAT AREA DID NOT INCLUDE DIRECT CONSUMER SALES, WHETHER FOR
INDUSTRIAL OR OTHER USES.  THOSE SALES HAD BEEN REGULATED BY THE STATES
AND THE REGULATION HAD BEEN REPEATEDLY SUSTAINED.  IN NO INSTANCE
REACHING THIS COURT HAD IT BEEN STRICKEN DOWN."  ID., AT 519. 

THE "LICENSE TAX" IN THE PRESENT CASE, IF IT BE SUCH, IS ONLY A TAX
ON A WHOLLY INTRASTATE ACTIVITY, TO WIT - THE DELIVERY OF GAS TO THE
LOCAL DISTRIBUTOR FOR THE DELIVERY TO LOCAL CONSUMERS. 

THIS CONCLUSION IS MORE IN THE TRADITION OF OUR CASES THAN WAS
PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMM'N, 341 U.S. 329,
WHERE A STATE WAS ALLOWED TO EXACT FROM AN INTERSTATE PIPELINE COMPANY
A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO MAKE DIRECT
DELIVERIES OF GAS TO INDUSTRIAL CONSUMERS.  THE COURT SAID THAT "THE
SALE AND DISTRIBUTION OF GAS TO LOCAL CONSUMERS" WAS A TRANSACTION
"ESSENTIALLY LOCAL" AND WAS "SUBJECT TO STATE REGULATION WITHOUT
INFRINGEMENT OF THE COMMERCE CLAUSE."  ID., AT 333.  THE SALES THERE
PROPOSED WERE TO BE MADE DIRECTLY FROM THE PIPELINE TO THE INDUSTRIAL
USERS.  HERE THE GAS FIRST GOES TO THE LOCAL DISTRIBUTOR, WHICH IN TURN
REDUCES THE PRESSURE AND MAKES DELIVERY TO THE INDUSTRIAL CUSTOMERS. 
THE LOCAL NATURE OF THE TRANSACTION IS MORE APPARENT AND LESS
COMPLICATED THAN IT WAS IN THE PANHANDLE CASE. 

I WOULD REVERSE THE JUDGMENT BELOW AND HOLD THE TAX VALID. 

MR. JUSTICE HARLAN, DISSENTING. 

IN MY OPINION NONE OF THE CONSIDERATIONS UNDERLYING THE DOCTRINE OF
FEDERAL JUDICIAL ABSTENTION (SEE HARRISON V. N.A.A.C.P., 360 U.S. 167,
176-177) CALL FOR ITS APPLICATION HERE.  THERE IS NO REASONABLE
LIKELIHOOD THAT A PRIOR STATE CONSTRUCTION OF THIS LICENSE CODE WOULD
EITHER CHANGE THE COMPLEXION OF THE CONSTITUTIONAL ISSUE OR AVOID THE
NECESSITY OF ITS EVENTUAL ADJUDICATION BY THIS COURT. 

EVEN WERE THIS LOCAL ENACTMENT TO BE CONSTRUED BY THE STATE COURTS TO
REQUIRE A LICENSE OF THE APPELLANT AS A PRECONDITION OF ENGAGING IN THE
DISTRIBUTION OF NATURAL GAS WITHIN THE CITY OF MOBILE, THAT OF ITSELF
WOULD NOT ORDAIN THE ANSWER TO THE CONSTITUTIONAL QUESTION.  SEE
SOUTHERN NATURAL GAS CORP. V. ALABAMA, 301 U.S. 148; EAST OHIO GAS CO.
V. TAX COMM'N, 283 U.S. 465; SEE ALSO ILLINOIS NATURAL GAS CO. V.
CENTRAL ILLINOIS PUB. SERV. CO., 314 U.S. 498, 506.  CF. NORTHWESTERN
STATES PORTLAND CEMENT CO. V. MINNESOTA, 358 U.S. 450.  NOR CAN I SEE
HOW SUCH A STATE ADJUDICATION WOULD SERVE TO ILLUMINE THE NATURE OF
UNITED'S ACTIVITIES IN MOBILE. 

AS I VIEW MATTERS, NOTHING USEFUL IS TO BE ACCOMPLISHED BY REMITTING
THE PARTIES TO THE STATE COURTS, AND I WOULD ADJUDICATE THE
CONSTITUTIONAL ISSUE NOW. 
..END :


















FONG FOO V. UNITED STATES 369 U.S. 141 


NO. 64.  ARGUED JANUARY 16, 1962 - DECIDED MARCH 19, 1962* - 286 F.2D
556, REVERSED. 

*TOGETHER WITH NO. 65, STANDARD COIL PRODUCTS CO., INC., V. UNITED
STATES, ALSO ON CERTIORARI TO THE SAME COURT. 


PETITIONERS WERE BROUGHT TO TRIAL UNDER A VALID INDICTMENT IN A
FEDERAL DISTRICT COURT WHICH HAD JURISDICTION OVER THEM AND OVER THE
SUBJECT MATTER.  AFTER THE GOVERNMENT HAD INTRODUCED PART, BUT NOT ALL,
OF ITS EVIDENCE, THE DISTRICT JUDGE DIRECTED THE JURY TO RETURN
VERDICTS OF ACQUITTAL, AND A FORMAL JUDGMENT OF ACQUITTAL WAS ENTERED. 
THE GOVERNMENT PETITIONED THE COURT OF APPEALS FOR A WRIT OF MANDAMUS,
PRAYING THAT THE JUDGMENT OF ACQUITTAL BE VACATED AND THE CASE
REASSIGNED FOR TRIAL.  THE COURT OF APPEALS GRANTED THE PETITION ON THE
GROUND THAT, UNDER THE CIRCUMSTANCES REVEALED BY THE RECORD, THE
DISTRICT COURT WAS WITHOUT POWER TO DIRECT THE JUDGMENT OF ACQUITTAL. 
HELD:  THE JUDGMENT OF THE COURT OF APPEALS WAS CONTRARY TO THE
GUARANTY OF THE FIFTH AMENDMENT AGAINST DOUBLE JEOPARDY.  PP. 141-143. 

FONG FOO ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

PER CURIAM. 

THE PETITIONERS, A CORPORATION AND TWO OF ITS EMPLOYEES, WERE BROUGHT
TO TRIAL BEFORE A JURY IN A FEDERAL DISTRICT COURT UPON AN INDICTMENT
CHARGING A CONSPIRACY AND THE SUBSTANTIVE OFFENSE OF CONCEALING
MATERIAL FACTS IN A MATTER WITHIN THE JURISDICTION OF AN AGENCY OF THE
UNITED STATES, IN VIOLATION OF 18 U.S.C. SECS. 371 AND 1001.  AFTER
SEVEN DAYS OF WHAT PROMISED TO BE A LONG AND COMPLICATED TRIAL, THREE
GOVERNMENT WITNESSES HAD APPEARED AND A FOURTH WAS IN THE PROCESS OF
TESTIFYING.  AT THAT POINT THE DISTRICT JUDGE DIRECTED THE JURY TO
RETURN VERDICTS OF ACQUITTAL AS TO ALL THE DEFENDANTS, AND A FORMAL
JUDGMENT OF ACQUITTAL WAS SUBSEQUENTLY ENTERED. 

THE RECORD SHOWS THAT THE DISTRICT JUDGE'S ACTION WAS BASED UPON ONE
OR BOTH OF TWO GROUNDS: SUPPOSED IMPROPER CONDUCT ON THE PART OF THE
ASSISTANT UNITED STATES ATTORNEY WHO WAS PROSECUTING THE CASE, AND A
SUPPOSED LACK OF CREDIBILITY IN THE TESTIMONY OF THE WITNESSES FOR THE
PROSECUTION WHO HAD TESTIFIED UP TO THAT POINT. 

THE GOVERNMENT FILED A PETITION FOR A WRIT OF MANDAMUS IN THE COURT
OF APPEALS FOR THE FIRST CIRCUIT, PRAYING THAT THE JUDGMENT OF
ACQUITTAL BE VACATED AND THE CASE REASSIGNED FOR TRIAL.  THE COURT
GRANTED THE PETITION, UPON THE GROUND THAT UNDER THE CIRCUMSTANCES
REVEALED BY THE RECORD THE TRIAL COURT WAS WITHOUT POWER TO DIRECT THE
JUDGMENT IN QUESTION.  JUDGE ALDRICH CONCURRED SEPARATELY, FINDING THAT
THE DIRECTED JUDGMENT OF ACQUITTAL HAD BEEN BASED SOLEY ON THE SUPPOSED
IMPROPER CONDUCT OF THE PROSECUTOR, AND AGREEING WITH HIS COLLEAGUES
THAT THE DISTRICT JUDGE WAS WITHOUT POWER TO DIRECT AN ACQUITTAL ON
THAT GROUND.  286 F.2D 556.  WE GRANTED CERTIORARI TO CONSIDER A
QUESTION OF IMPORTANCE IN THE ADMINISTRATION OF JUSTICE IN THE FEDERAL
COURTS.  366 U.S. 959. 

IN HOLDING THAT THE DISTRICT COURT WAS WITHOUT POWER TO DIRECT
ACQUITTALS UNDER THE CIRCUMSTANCES DISCLOSED BY THE RECORD, THE COURT
OF APPEALS RELIED PRIMARILY UPON TWO DECISIONS OF THIS COURT, EX PARTE
UNITED STATES, 242 U.S. 27, AND EX PARTE UNITED STATES, 287 U.S. 241. 
IN THE FIRST OF THESE CASES IT WAS HELD THAT A DISTRICT JUDGE HAD NO
POWER TO SUSPEND A MANDATORY PRISON SENTENCE, AND THAT A WRIT OF
MANDAMUS WOULD LIE TO REQUIRE THE JUDGE TO VACATE HIS ERRONEOUS ORDER
OF SUSPENSION.  IN THE SECOND CASE THE COURT ISSUED A WRIT OF MANDAMUS
ORDERING A DISTRICT JUDGE TO ISSUE A BREACH WARRANT WHICH HE HAD
REFUSED TO DO, IN THE PURPORTED EXERCISE OF HIS DISCRETION, FOR A
PERSON UNDER AN INDICTMENT RETURNED BY A PROPERLY CONSTITUTED GRAND
JURY. 

NEITHER OF THOSE DECISIONS INVOLVED THE GUARANTY OF THE FIFTH
AMENDMENT THAT NO PERSON SHALL "BE SUBJECT FOR THE SAME OFFENCE TO BE
TWICE PUT IN JEOPARDY OF LIFE OR LIMB."  THAT CONSTITUTIONAL PROVISION
IS AT THE VERY ROOT OF THE PRESENT CASE, AND WE CANNOT BUT CONCLUDE
THAT THE GUARANTY WAS VIOLATED WHEN THE COURT OF APPEALS SET ASIDE THE
JUDGMENT OF ACQUITTAL AND DIRECTED THAT THE PETITIONERS BE TRIED AGAIN
FOR THE SAME OFFENSE. 

THE PETITIONERS WERE TRIED UNDER A VALID INDICTMENT IN A FEDERAL
COURT WHICH HAD JURISDICTION OVER THEM AND OVER THE SUBJECT MATTER. 
THE TRIAL DID NOT TERMINATE PRIOR TO THE ENTRY OF JUDGMENT, AS IN GORI
V. UNITED STATES, 367 U.S. 364.  IT TERMINATED WITH THE ENTRY OF A
FINAL JUDGMENT OF ACQUITTAL AS TO EACH PETITIONER.  THE COURT OF
APPEALS THOUGHT, NOT WITHOUT REASON, THAT THE ACQUITTAL WAS BASED UPON
AN EGREGIOUSLY ERRONEOUS FOUNDATION.  NEVERTHELESS, "THE VERDICT OF
ACQUITTAL WAS FINAL, AND COULD NOT BE REVIEWED  ...  WITHOUT PUTTING
THE PETITIONERS TWICE IN JEOPARDY, AND THEREBY VIOLATING THE
CONSTITUTION."  UNITED STATES V. BALL, 163 U.S. 662, 671.  REVERSED. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

MR. JUSTICE HARLAN, CONCURRING. 

WERE I ABLE TO FIND, AS JUDGE ALDRICH DID, THAT THE DISTRICT COURT'S
JUDGMENT OF ACQUITTAL WAS BASED SOLELY ON THE ASSISTANT UNITED STATES
ATTORNEY'S ALLEGED MISCONDUCT, I WOULD THINK THAT A RETRIAL OF THE
PETITIONERS WOULD NOT BE PREVENTED BY THE DOUBLE JEOPARDY CLAUSE OF THE
FIFTH AMENDMENT.  EVEN ASSUMING THAT A TRIAL COURT MAY HAVE POWER, IN
EXTREME CIRCUMSTANCES, TO DIRECT A JUDGMENT OF ACQUITTAL, INSTEAD OF
DECLARING A MISTRIAL, BECAUSE OF A PROSECUTOR'S MISCONDUCT - A
PROPOSITION WHICH I SERIOUSLY DOUBT - I DO NOT THINK THAT SUCH POWER
EXISTED IN THE CIRCUMSTANCES OF THIS CASE.  BUT SINCE AN EXAMINATION OF
THE RECORD LEAVES ME UNABLE, AS IT DID THE MAJORITY OF THE COURT OF
APPEALS, TO ATTRIBUTE THE ACTION OF THE DISTRICT COURT TO THIS FACTOR
ALONE, I CONCUR IN THE JUDGMENT OF REVERSAL. 

MR. JUSTICE CLARK, DISSENTING. 

THE COURT SPEAKS WITH SUCH EXPANSE THAT I AM OBLIGED TO DISSENT.  IT
SAYS THAT BECAUSE "A FINAL JUDGMENT OF ACQUITTAL" WAS ENTERED PURSUANT
TO A DIRECTED VERDICT THE PROPRIETY OF SUCH "ACQUITTAL" CANNOT BE
REVIEWED EVEN THOUGH THE GOVERNMENT HAD NOT CONCLUDED ITS MAIN CASE AT
THE TIME THE VERDICT WAS DIRECTED.  THE DISTRICT COURT UNDER THE
CIRCUMSTANCES HERE CLEARLY HAD NO POWER TO DIRECT A VERDICT OF
ACQUITTAL OR TO ENTER A JUDGMENT THEREON.  IN MY VIEW WHEN A TRIAL
COURT HAS NO POWER TO DIRECT SUCH A VERDICT, THE JUDGMENT BASED THEREON
IS A NULLITY.  THE WORD "ACQUITTAL" IN THIS CONTEXT IS NO MAGIC OPEN
SESAME FREEING IN THIS CASE TWO PERSONS AND ABSOLVING A CORPORATION
FROM SERIOUS GRAND JURY CHARGES OF FRAUD UPON THE GOVERNMENT. 

ON THE RECORD BEFORE US IT MATTERS NOT WHETHER THE SO-CALLED
ACQUITTAL WAS PURSUANT TO THE TRIAL COURT'S CONCLUSION THAT THE
GOVERNMENT'S WITNESSES UP TO THAT POINT LACKED CREDIBILITY OR WAS BASED
ON THE ALLEGED MISCONDUCT OF THE PROSECUTION. 

ON THE FIRST POINT, THE GOVERNMENT HAD ONLY EXAMINED THREE OF ITS
WITNESSES AND WAS IN THE PROCESS OF EXAMINING A FOURTH WHEN THE
ACQUITTAL WAS ENTERED.  THE FIRST AND THIRD WITNESSES WERE MERELY
PRELIMINARY, OFFERED TO IDENTIFY DOCUMENTS AND EXPLAIN THE FUNCTIONS
PERFORMED BY THE INDIVIDUAL DEFENDANTS FOR THE CORPORATE DEFENDANT. 
THE SECOND WAS OFFERED TO GIVE THE JURY AN EXPLANATION OF RADIOSONDES,
DEVICES FOR GATHERING WEATHER DATA, WHICH PETITIONERS WERE FURNISHING
THE GOVERNMENT UNDER CONTRACTS TOTALING SEVERAL MILLION DOLLARS.  IT
WAS DURING THE LATTER'S TESTIMONY - ENTIRELY EXPLANATORY - THAT THE
COURT CALLED A RECESS FOR THE STATED PURPOSE OF REQUIRING THE UNITED
STATES ATTORNEY TO "CONSIDER WHETHER THE PUBLIC INTEREST IS SERVED BY A
FURTHER PROSECUTION OF THIS CASE."  UPON THE VIGOROUS INSISTENCE OF THE
UNITED STATES ATTORNEY HIMSELF, THE TRIAL WAS RESUMED AND THE
GOVERNMENT CALLED ITS THIRD AND FOURTH WITNESSES.  THE FOURTH WITNESS
WAS THE FIRST TO TESTIFY AS TO THE FRAUD UPON THE GOVERNMENT WHICH
RELATED TO A DELIBERATE SCHEME TO CONCEAL FROM GOVERNMENT INSPECTORS
DEFECTS IN THE DEVICES.  DURING DIRECT EXAMINATION THE FOURTH WITNESS
WAS "NOT SURE" AS TO THE DATE OF A CERTAIN CONFERENCE AT WHICH
REPRESENTATIVES OF THE CORPORATE DEFENDANT WERE PRESENT.  THEREAFTER AT
A RECESS PERIOD HIS MEMORY WAS REFRESHED DURING A CONVERSATION WITH ONE
OF THE ASSISTANT UNITED STATES ATTORNEYS.  UPON RESUMING THE STAND HE
CORRECTED HIS PREVIOUS TESTIMONY AS TO THE DATE, PLACING IT A FEW
MONTHS EARLIER.  ON CROSS-EXAMINATION HE ADMITTED THAT THE ERROR HAD
BEEN CALLED TO HIS ATTENTION BY THE ASSISTANT.  THE COURT THEN EXCUSED
THE JURY AND AFTER EXCORIATING THE ASSISTANT CALLED THE JURY BACK INTO
SESSION AND DIRECTED THE VERDICT OF ACQUITTAL. 

IT IS FUNDAMENTAL IN OUR CRIMINAL JURISPRUDENCE THAT THE PUBLIC HAS A
RIGHT TO HAVE A PERSON WHO STANDS LEGALLY INDICTED BY A GRAND JURY
PUBLICLY TRIED ON THE CHARGE.  NO JUDGE HAS THE POWER BEFORE HEARING
THE TESTIMONY PROFFERED BY THE GOVERNMENT OR AT LEAST CANVASSING THE
SAME TO ENTER A JUDGMENT OF ACQUITTAL AND THUS FRUSTRATE THE GOVERNMENT
IN THE PERFORMANCE OF ITS DUTY TO PROSECUTE THOSE WHO VIOLATE ITS LAW. 

HERE, AS THE UNITED STATES ATTORNEY ADVISED THE COURT, ONLY THREE
WITNESSES OF THE "MANY  ...  TO BE HEARD FROM  ...  " HAD TESTIFIED. 
THE COURT HAD ONLY BEGUN TO HEAR WHAT PROMISED TO BE A PROTRACTED
CONSPIRACY CASE INVOLVING MANY WITNESSES.  THE GOVERNMENT HAD NOT
RESTED.  AS THE MAJORITY OF THE COURT OF APPEALS OBSERVED, THE DISTRICT
COURT: 

"ABRUPTLY TERMINATED THE GOVERNMENT'S CASE  ...  LONG BEFORE THE
GOVERNMENT HAD HAD AN OPPORTUNITY TO SHOW WHETHER OR NOT IT HAD A CASE;
AND, MOREOVER, HE DID SO IN IGNORANCE OF EITHER THE EXACT NATURE OR THE
COGENCY OF THE SPECIFIC EVIDENCE OF GUILT WHICH GOVERNMENT'S COUNSEL
SAID HE HAD AVAILABLE AND WAS READY TO PRESENT."  286 F.2D, AT 562
563. 

AT SUCH A STAGE OF THE CASE THE DISTRICT COURT HAD NO POWER TO
PREJUDGE THE GOVERNMENT'S PROOF - FIND IT INSUFFICIENT OR UNCONVINCING
AND SET THE PETITIONERS FREE. 

ON THE SECOND POINT, EVEN IF THERE WERE MISCONDUCT, THE COURT STILL
HAD NO POWER TO PUNISH THE GOVERNMENT BECAUSE OF THE INDISCRETION OF
ITS LAWYER.  AS THIS COURT SAID IN MCGUIRE V. UNITED STATES, 273 U.S.
95, 99 (1927), "A CRIMINAL PROSECUTION IS MORE THAN A GAME IN WHICH THE
GOVERNMENT MAY BE CHECKMATED AND THE GAME LOST MERELY BECAUSE ITS
OFFICERS HAVE NOT PLAYED ACCORDING TO RULE."  AT MOST, IF THERE HAD
BEEN MISCONDUCT, THE REMEDY WOULD HAVE BEEN TO DECLARE A MISTRIAL AND
IMPOSE APPROPRIATE PUNISHMENT UPON THE ASSISTANT UNITED STATES
ATTORNEY, RATHER THAN UPON THE PUBLIC.  IN MY VIEW THE JUDGMENT OF THE
COURT OF APPEALS SHOULD, THEREFORE, BE AFFIRMED. 
..END :
















BENZ V. NEW YORK STATE THRUWAY AUTHORITY 369 U.S. 147 


NO. 234.  ARGUED FEBRUARY 28 - MARCH 1, 1962.  - DECIDED MARCH 19,
1962.  - REPORTED BELOW:  9 N.Y.2D 486, 174 N.E.2D 727. 


SINCE IT NOW APPEARS THAT THIS CASE PRESENTS NO SUBSTANTIAL FEDERAL
QUESTION, THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY
GRANTED. 

BENZ V. NEW YORK STATE THRUWAY AUTHORITY. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

WE GRANTED CERTIORARI IN THIS CASE, 368 U.S. 886, TO DECIDE WHETHER
THE STATE OF NEW YORK COULD, CONSISTENTLY WITH THE FOURTEENTH
AMENDMENT, ASSERT SOVEREIGN IMMUNITY IN A SUIT BROUGHT BY PETITIONER TO
REFORM ON GROUNDS OF MUTUAL MISTAKE, OR TO RESCIND FOR FRAUD IN THE
INDUCEMENT, AN AGREEMENT FIXING COMPENSATION FOR LAND TAKEN UNDER THE
POWER OF EMINENT DOMAIN.  CONTRARY TO OUR INITIAL IMPRESSION OF THE
CASE ON THE BASIS OF THE PETITION FOR CERTIORARI, PLENARY CONSIDERATION
HAS SATISFIED US THAT THE NEW YORK COURT OF APPEALS DECIDED NO MORE
THAN THAT THIS SUIT COULD NOT BE MAINTAINED IN THE SUPREME COURT OF THE
STATE OF NEW YORK BECAUSE EXCLUSIVE JURISDICTION OVER LITIGATION OF
THIS CHARACTER HAD BEEN VESTED IN THE NEW YORK COURT OF CLAIMS.  THE
CASE THEN INVOLVES ONLY A MATTER RELATING TO "THE DISTRIBUTION OF
JURISDICTION IN THE STATE COURTS," AND PRESENTS NO SUBSTANTIAL FEDERAL
QUESTION.  E.G., HONEYMAN V. HANAN, 302 U.S. 375. 

SINCE THE REPRESENTATIVE OF THE STATE ATTORNEY GENERAL ADVISED US ON
ORAL ARGUMENT THAT THE ATTORNEY GENERAL WILL RECOMMEND PASSAGE OF A
BILL BY THE STATE LEGISLATURE RELIEVING PETITIONER FROM THE OPERATION
OF THE STATUTE OF LIMITATIONS GOVERNING PROCEEDINGS IN THE NEW YORK
COURT OF CLAIMS,* WE ASSUME THAT SHE WILL BE FREE TO PRESENT HER CLAIMS
IN THE APPROPRIATE STATE FORUM. 

*REPORTER'S NOTE:  SUCH A BILL BECAME A LAW ON APRIL 29, 1962, N.Y.
LAWS 1962, C. 940. 

THE WRIT IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :





MCNEILL V. CARROLL 369 U.S. 149 


NO. 513.  DECIDED MARCH 19, 1962 - REPORTED BELOW:  294 F.2D 117. 


JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS TO DISMISS AS
MOOT. 

MCNEILL, HOSPITAL SUPERINTENDENT, V. CARROLL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

UPON THE SUGGESTION OF MOOTNESS SUBMITTED BY COUNSEL FOR THE APPELLEE
BY REASON OF THE DEATH OF THE APPELLEE AND OF THE APPELLANT'S MOTION TO
VACATE THE JUDGMENT OF THE COURT OF APPEALS, SAID JUDGMENT IS VACATED
AND THE CASE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS
THE CAUSE AS MOOT. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :







NEW YORK MOBILE HOMES ASSN. V. STECKEL 369 U.S. 150 


NO. 609.  DECIDED MARCH 19, 1962 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  9 N.Y.2D 533, 175
N.E.2D 151. 


NEW YORK MOBILE HOMES ASSN. ET AL. V. STECKEL, SUPERVISOR OF THE TOWN OF
CHILI, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :












HARDING V. HAND 369 U.S. 151 


NO. 5, MISC.  DECIDED MARCH 19, 1962 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


HARDING V. HAND, WARDEN. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













HARVEY, ALIAS MCCARGO V. SMYTH 369 U.S. 152 


NO. 7, MISC.  DECIDED MARCH 19, 1962 - CERTIORARI GRANTED; JUDGMENT
REVERSED. 


HARVEY, ALIAS MCCARGO V. SMYTH, PENITENTIARY SUPERINTENDENT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE MOTION TO SUBSTITUTE W.K. CUNNINGHAM, JR., IN THE PLACE OF W.
FRANK SMYTH, JR., AS THE PARTY RESPONDENT IS GRANTED.  THE MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR WRIT OF
CERTIORARI ARE ALSO GRANTED.  THE JUDGMENT IS REVERSED.  CHEWNING V.
CUNNINGHAM, 368 U.S. 443. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :










SIMONSON V. GRANQUIST 369 U.S. 38 


NO. 83.  ARGUED JANUARY 18, 1962 - DECIDED MARCH 5, 1962 - 287 F.2D 489,
491, REVERSED. 


THE ESTATE OF A BANKRUPT IN FAVOR OF THE UNITED STATES FOR FEDERAL
STATUTORY TAX PENALTIES, EVEN THOUGH A LIEN THEREFOR HAS BEEN PERFECTED
PRIOR TO FILING OF THE PETITION IN BANKRUPTCY.  PP. 38-42. 

SIMONSON, TRUSTEE IN BANKRUPTCY, ET AL. V. GRANQUIST, DISTRICT DIRECTOR
OF INTERNAL REVENUE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES, CONSOLIDATED FOR ARGUMENT HERE, INVOLVE
CONTROVERSIES BETWEEN THE UNITED STATES AND BANKRUPTCY TRUSTEES
CONCERNING THE RIGHT OF THE GOVERNMENT TO RECOVER FEDERAL TAX PENALTIES
AGAINST THE ESTATE OF A BANKRUPT.  (FN1)  BECAUSE THE TAX PENALTIES
CONSTITUTED PERFECTED LIENS ON THE ESTATE OF THE BANKRUPT, (FN2) THE
COURT OF APPEALS FOR THE NINTH CIRCUIT, FOLLOWING ONE OF ITS OWN PRIOR
DECISIONS WHICH SUBSEQUENTLY HAD BEEN SUPPORTED BY BOTH THE SIXTH AND
THE TENTH CIRCUITS, (FN3) SUSTAINED DISTRICT COURT JUDGMENTS HOLDING
THE PENALTY CLAIMS ALLOWABLE.  287 F.2D 489, 491.  SINCE THE FOURTH AND
FIFTH CIRCUITS HAVE HELD TO THE CONTRARY, (FN4) WE GRANTED CERTIORARI
TO RESOLVE THE CONFLICT.  366 U.S. 943. 

TWO PROVISIONS OF THE BANKRUPTCY ACT, SECS. 57J AND 67B, ARE ASSERTED
TO HAVE PARTICULAR RELEVANCE TO THE QUESTION.  SECTION 57J PROVIDES: 

"DEBTS OWING TO THE UNITED STATES OR TO ANY STATE OR ANY SUBDIVISION
THEREOF AS A PENALTY OR FORFEITURE SHALL NOT BE ALLOWED, EXCEPT FOR THE
AMOUNT OF THE PECUNIARY LOSS SUSTAINED BY THE ACT, TRANSACTION, OR
PROCEEDING OUT OF WHICH THE PENALTY OR FORFEITURE AROSE  ...  ." 
(FN5) 


"STATUTORY LIENS  ... FOR TAXES AND DEBTS OWING TO THE UNITED STATES
...  MAY BE VALID AGAINST THE TRUSTEE, EVEN THOUGH ARISING OR PERFECTED
... WITHIN FOUR MONTHS PRIOR TO THE FILING OF THE PETITION INITIATING
A PROCEEDING UNDER THIS ACT BY OR AGAINST HIM  ...  ."  (FN6) 

DESPITE THE FACT THAT THE LANGUAGE OF SEC. 57J BROADLY PROHIBITS THE
ALLOWANCE OF PENALTY CLAIMS IN BANKRUPTCY WITHOUT REGARD TO WHETHER
SUCH CLAIMS ARE SECURED OR UNSECURED, THE GOVERNMENT ARGUES THAT THIS
AND THAT SECURED CLAIMS, EVEN THOUGH FOR PENALTIES, SHOULD BE ALLOWED
UNDER SEC. 67B.  ITS ARGUMENT STARTS FROM THE FACT THAT THE BANKRUPTCY
ACT PRIMARILY PROVIDES A WAY TO GATHER THE UNENCUMBERED ASSETS OF AN
INSOLVENT DEBTOR FOR DISTRIBUTION AMONG HIS UNSECURED CREDITORS, BUT,
THOUGH CONTAINING SOME PROVISIONS APPLICABLE TO SECURED CREDITORS,
GENERALLY LEAVES THOSE CREDITORS SECURED BY MORTGAGES AND LIENS FREE TO
ENFORCE THEIR CLAIMS DIRECTLY AGAINST THE PROPERTY BY WHICH THOSE
CLAIMS ARE SECURED.  FROM THIS AND A SECTION-BY-SECTION ANALYSIS OF THE
ACT, THE GOVERNMENT REASONS THAT THE "CLAIMS" REFERRED TO IN SEC. 57,
WHICH GOVERNS THE "PROOF AND ALLOWANCE OF CLAIMS," ARE NOT THE CLAIMS
OF SECURED CREDITORS BUT ONLY THE "CLAIMS" OF UNSECURED CREDITORS
AGAINST THE FUND CREATED BY UNENCUMBERED ASSETS, WITH WHICH THE ACT
PRIMARILY DEALS.  ON THIS BASIS THE GOVERNMENT CONTENDS THAT SEC. 57J,
BEING A PART OF SEC. 57, MUST BE READ AS BARRING ONLY THOSE PENALTIES
THAT HAVE NOT YET RIPENED INTO A LIEN SO AS TO BECOME A CHARGE UPON THE
BANKRUPT'S PROPERTY. 

WE THINK, HOWEVER, THAT THE LANGUAGE OF SEC. 57J IS ITSELF A MORE
DEPENDABLE GUIDE TO ITS MEANING THAN THIS ARGUMENT FROM THE GENERAL
STRUCTURE OF THE BANKRUPTCY ACT.  UNQUESTIONABLY THAT LANGUAGE IS BROAD
ENOUGH TO BAR ALL PENALTIES, WHETHER SECURED BY LIEN OR NOT, AND WE
THINK THE SECTION WAS DESIGNED TO DO PRECISELY THAT.  FOR IT PLAINLY
MANIFESTS A CONGRESSIONAL PURPOSE TO BAR ALL CLAIMS OF ANY KIND AGAINST
A BANKRUPT EXCEPT THOSE BASED ON A "PECUNIARY" LOSS.  SO UNDERSTOOD,
THIS SECTION, WHICH HAS BEEN A PART OF THE BANKRUPTCY ACT SINCE ITS
ENACTMENT IN 1898, IS IN KEEPING WITH THE BROAD AIM OF THE ACT TO
PROVIDE FOR THE CONSERVATION OF THE ESTATES OF INSOLVENTS TO THE END
THAT THERE MAY BE AS EQUITABLE A DISTRIBUTION OF ASSETS AS IS
CONSISTENT WITH THE TYPE OF CLAIMS INVOLVED.  MOREOVER, THE PROHIBITION
OF ALL TAX PENALTIES IN BANKRUPTCY IS WHOLLY CONSISTENT WITH THE POLICY
OF THE PENALTY PROVISIONS THEMSELVES.  TAX PENALTIES ARE IMPOSED AT
LEAST IN PART AS PUNITIVE MEASURES AGAINST PERSONS WHO HAVE BEEN GUILTY
OF SOME DEFAULT OR WRONG.  (FN7)  ENFORCEMENT OF PENALTIES AGAINST THE
ESTATES OF BANKRUPTS, HOWEVER, WOULD SERVE NOT TO PUNISH THE DELINQUENT
TAXPAYERS, BUT RATHER THEIR ENTIRELY INNOCENT CREDITORS. 

WHEN WE TURN TO THE LANGUAGE OF SEC. 67B, WE FIND NOTHING THAT
INDICATES A PURPOSE TO REQUIRE THE GENERAL CREDITORS OF A BANKRUPT TO
SUFFER BECAUSE OF PENALTIES DESIGNED TO BE INFLICTED UPON THE BANKRUPT
HIMSELF.  INDEED, THERE IS NOT A SINGLE WORD IN THAT SECTION REGARDING
PENALTIES, AND THE PLAIN PURPOSE OF THE SECTION IS MERELY TO PREVENT
CERTAIN LIENS, INCLUDING STATUTORY TAX LIENS, "ARISING OR PERFECTED
...  WITHIN FOUR MONTHS PRIOR TO THE FILING OF THE BANKRUPTCY
PETITION," FROM BEING SET ASIDE AND DECLARED INVALID UNDER SEC. 60 AS
PREFERENTIAL.  (FN8)  THUS SEC. 67B EXPRESSLY DECLARES THAT IT IS TO
TAKE PRECEDENCE OVER ANY "PROVISIONS OF SECTION 60 OF THIS ACT TO THE
CONTRARY  ...  ."  SECTION 67B CANNOT THEREFORE BE READ AS SHOWING A
CONGRESSIONAL PURPOSE TO MAKE PENALTIES ALLOWABLE CONTRARY TO THE
SPECIAL AND SPECIFIC LANGUAGE OF SEC. 57J WHICH MAKES THEM NOT
ALLOWABLE.  (FN9) 

THE GOVERNMENT ARGUES, HOWEVER, THAT THE LEGISLATIVE HISTORY OF THE
TWO SECTIONS SUPPORTS THE ALLOWANCE OF PENALTIES WHEN THEY HAVE RIPENED
INTO LIENS.  WITHOUT DISCUSSING THE VARIED ARGUMENTS TO THIS EFFECT IN
DETAIL, WE THINK THE LEGISLATIVE HISTORY CITED SUPPORTS NO SUCH
CONCLUSION.  (FN10)  NOR DO WE THINK THAT ANY INFERENCE CAN BE DRAWN
FROM THE FAILURE OF CONGRESS TO AMEND THE ACT FOR ALTHOUGH SOME COURTS
HAVE HELD LIENED PENALTY CLAIMS ALLOWABLE, OTHERS HAVE HELD PRECISELY
THE OPPOSITE.  (FN11) 

IT IS TRUE THAT THE UNITED STATES HAS LONG HAD AN ABSOLUTE PRIORITY
FOR DEBTS DUE FROM INSOLVENT DEBTORS AND THAT THE BANKRUPTCY ACT
GENERALLY ACCORDS SECURED CREDITORS A PREFERRED POSITION.  BUT SEC. 57J
PLACES PENALTIES IN A CATEGORY QUITE DIFFERENT FROM ORDINARY DEBTS, ONE
NOT FAVORED IN BANKRUPTCY, AND THE CHARACTER OF A PENALTY IS BY NO
MEANS CHANGED BY CALLING IT A LIEN.  REVERSED. 

FN1  IN THE FIRST CASE, SIMONSON V. GRANQUIST, THERE IS ANOTHER POINT
WHICH WE NEED NOT REACH BECAUSE OF THE DISPOSITION MADE HERE. 

FN2  IN SIMONSON V. GRANQUIST THE LIENS AROSE UNDER INT. REV. CODE OF
1954, SEC. 6321; IN HARRIS V. UNITED STATES, THEY AROSE UNDER INT. REV.
CODE OF 1939, SEC. 3670. 

FN3  IN RE KNOX-POWELL-STOCKTON CO. (C.A. 9TH CIR.), 100 F.2D 979;
KENTUCKY V. FARMERS BANK (C.A. 6TH CIR.), 139 F.2D 266; UNITED STATES
V. MIGHELL (C.A. 10TH CIR.), 273 F.2D 682. 

FN4  UNITED STATES V. HARRINGTON (C.A. 4TH CIR.), 269 F.2D 719;
UNITED STATES V. PHILLIPS (C.A. 5TH CIR.), 267 F.2D 374. 

FN5  30 STAT. 561, AS AMENDED, 11 U.S.C. SEC. 93(J). 

FN6  52 STAT. 876, AS AMENDED, 11 U.S.C. SEC. 107(B). 

FN7  SEE, E.G., UNITED STATES V. CHILDS, 266 U.S. 304, 307. 

FN8  30 STAT. 562, AS AMENDED, 11 U.S.C. SEC. 96.  SEE ANALYSIS OF
H.R. 12889, 74TH CONG., 2D SESS. 211, NOTE 1; 4 COLLIER, BANKRUPTCY
183, PARTICULARLY NOTE 12. 

FN9  CF. GARDNER V. NEW JERSEY, 329 U.S. 565, 580-581. 

FN10  INDEED WHAT LITTLE LEGISLATIVE HISTORY THERE IS MIGHT WELL BE
TAKEN TO INDICATE AN INTENT TO BAR PENALTIES WHETHER LIENED OR NOT. 
THUS, THE MINORITY REPORT ON THE TORREY BILL WHICH EVENTUALLY BECAME
THE BANKRUPTCY ACT OF 1898 STATED AS AN OBJECTION TO SEC. 57J THE FACT
THAT ALTHOUGH "PENALTIES AND FORFEITURES, WHEN MERGED INTO JUDGMENT,
...  ARE LIENS UPON THE DEBTOR'S ESTATE, THIS BILL TREATS THEM AS
WORTHLESS AND FORBIDS THEIR PAYMENT."  H.R. REP. NO. 1674, 52D CONG.,
1ST SESS., PT. 2, PP. 13-14. 

FN11  COMPARE, E.G., IN RE KNOX-POWELL-STOCKTON CO., 100 F.2D 979,
AND KENTUCKY V. FARMERS BANK, 139 F.2D 266, WITH UNITED STATES V.
PHILLIPS, 267 F.2D 374, AND IN RE BURCH, 89 F. SUPP. 249.  IN 1960
CONGRESS PASSED AN ACT CONTAINING A PROVISION APPLYING SEC. 57J TO
PENALTIES "WHETHER OR NOT SECURED BY LIEN," BUT THIS WAS VETOED BY THE
PRESIDENT.  106 CONG. REC. 19168. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

OF COURSE ONE AGREES WITH THE COURT THAT AN IMPORTANT PURPOSE OF THE
BANKRUPTCY ACT WAS TO ENSURE AN EQUITABLE DISTRIBUTION OF ASSETS AMONG
CREDITORS.  I ALSO AGREE THAT SEC. 57J, 11 U.S.C. SEC. 93(J), DENYING
CLAIMS FOR PENALTIES AGAINST THE ESTATE, REFLECTS A POLICY AGAINST
DISADVANTAGING INNOCENT CREDITORS FOR THE WRONGS OF THE BANKRUPT.  IF
THAT WERE THE ONLY POLICY OF THE ACT, SEC. 57J WOULD HOLD THE EXCLUSIVE
FIELD AND THERE WOULD BE NO PROBLEM.  AS IT IS, IF THERE BE A
COUNTERVAILING POLICY AS A MATTER OF HISTORIC BANKRUPTCY LAW, IT CAN
NEITHER BE DISCARDED NOR DISREGARDED IN GIVING SEC. 57J ITS PROPER
SETTING AND ITS RESULTING SCOPE. 

IN BANKRUPTCY A SHARP DISTINCTION HAS ALWAYS BEEN DRAWN BETWEEN
SECURED AND UNSECURED CREDITORS.  SECURED CREDITORS MAY NOT VOTE AT
CREDITORS' MEETINGS, SEC. 56B, NOR MAY THEIR CLAIMS BE ALLOWED AGAINST
THE BANKRUPT ESTATE, SEC. 57E, EXCEPT TO THE EXTENT THAT THESE CLAIMS
EXCEED THE VALUE OF THE SECURITY.  FULLY SECURED CREDITORS ARE NOT
COUNTED IN DETERMINING THE TOTAL NUMBER OF CREDITORS IN ORDER TO
ASCERTAIN THE NUMBER REQUIRED TO INITIATE INVOLUNTARY BANKRUPTCY, SEC.
59E.  LIENS HAVE BEEN HELD UNAFFECTED BY A DISCHARGE UNDER SEC. 17,
E.G., PREBYL V. PRUDENTIAL INS. CO., 98 F.2D 199; SEE 1 COLLIER,
BANKRUPTCY PARA. 17.29 (14TH ED. 1961). 

WHICH ARE SECURED BY LIEN, THOSE WHICH ARE GIVEN PRIORITY AND ALL
OTHERS.  THOSE HAVING NEITHER SECURITY NOR PRIORITY ARE SATISFIED ON A
PRO RATA BASIS, SEC. 65.  THOSE WITH PRIORITY, AS LISTED IN SEC. 64,
ARE TO BE PAID IN FULL IN SPECIFIED ORDER BEFORE THE DISTRIBUTION OF
PRO RATA DIVIDENDS TO OTHER CLAIMANTS.  LIENS, IN SEC. 67D OF THE
STATUTE AS ENACTED IN 1898, 30 STAT. 544, 564, WERE DECLARED TO BE
UNAFFECTED BY THE STATUTE - THEY WERE ENTIRELY WITHOUT ITS SCOPE. 
CONSEQUENTLY THEY WERE ENTITLED TO PRECEDENCE OVER CLAIMS GRANTED
PRIORITY BY SEC. 64.  CITY OF RICHMOND V. BIRD, 249 U.S. 174.  THIS
INFERENCES THAT BY NEGATIVE IMPLICATION IT DISALLOWED CERTAIN LIENS NOT
OTHERWISE INVALIDATED BY THE ACT, AND BECAUSE THE SUBSTANCE OF THE
PROVISION WAS THOUGHT TO BE PRESERVED IN OTHER SECTIONS - NOT BECAUSE
OF DISAPPROVAL IN POLICY.  S. REP. NO. 1916, 75TH CONG., 3D SESS. 17
(1938); SEE 4 COLLIER, SUPRA, PARA. 67.20.  THIS COURT HAS HELD THAT
LIENS REMAIN IMMUNE FROM AND ARE NOT DISPLACED BY THE ACT'S PRIORITIES
UNDER THE 1938 ACT, GOGGIN V. CALIFORNIA LABOR DIV., 336 U.S. 118, 126
127, AND LIENS FOR FEDERAL TAXES ARE EXPRESSLY PRESERVED BY SEC. 67B. 
A LIMITED EXCEPTION TO THE IMMUNITY OF LIENS WAS MADE IN SEC. 67C, BUT
THE EXTENT OF THE INVALIDATION OR SUBORDINATION OF LIENS TO OTHER DEBTS
WAS CAREFULLY CIRCUMSCRIBED, AND THE BASIC LIEN IMMUNITY REMAINS.  4
COLLIER, SUPRA, PARA. 67.20(3)-67.20(7). 

CONGRESS HAS THUS TREATED LIENS AS OUTSIDE THE POLICY OF EQUAL
TREATMENT OF CREDITORS IN BANKRUPTCY.  3 COLLIER, SUPRA, PARA. 57.07. 
A LIENOR DOES NOT HOLD SIMPLY A FIRST PRIORITY; HE HAS "A RIGHT TO
ENFORCEMENT INDEPENDENT OF BANKRUPTCY," ID., PARA. 64.02, AT 2061.  THE
BANKRUPTCY ACT DEALS WITH THE DISTRIBUTION OF UNENCUMBERED ASSETS AMONG
UNSECURED CREDITORS.  ID., PARA. 60.01.  LIENHOLDERS NEED NO BANKRUPTCY
ACT.  LIENS ARE INDEPENDENT OF AND ESSENTIALLY UNAFFECTED BY BANKRUPTCY
PROCEEDINGS.  I AGREE WITH THE COURT BELOW THAT LIENS ARE UNAFFECTED BY
SEC. 57J; THEY ARE OUTSIDE ITS SCOPE. 
..END :











METLAKATLA INDIAN COMMUNITY, ANNETTE ISLANDS RESERVE V. EGAN 369 U.S.
45 


NO. 2.  ARGUED DECEMBER 13-14, 1961 - DECIDED MARCH 5, 1962 - ALASKA - ,
362 P.2D 901, JUDGMENT VACATED AND CAUSE REMANDED. 


BY THE ACT OF MARCH 3, 1891, THE ANNETTE ISLANDS IN ALASKA WERE "SET
APART AS A RESERVATION" FOR THE METLAKATLANS AND OTHER INDIANS, "TO BE
HELD AND USED BY THEM  ...  UNDER SUCH RULES AND REGULATIONS  ...  AS
MAY BE PRESCRIBED FROM TIME TO TIME BY THE SECRETARY OF THE INTERIOR." 
RELYING NOT UPON THAT ACT, BUT UPON THE WHITE ACT OF JUNE 6, 1924, AND
SEC. 4 OF THE ALASKA STATEHOOD ACT, THE SECRETARY OF THE INTERIOR
PROMULGATED THE PRESENT REGULATIONS WHEREBY APPELLANT, THE INCORPORATED
METLAKATLA INDIAN COMMUNITY, WAS ACCORDED THE RIGHT TO ERECT AND
OPERATE SALMON TRAPS IN WATERS SURROUNDING THE ANNETTE ISLANDS. 
APPELLANT SUED TO ENJOIN THREATENED ENFORCEMENT AGAINST IT OF A STATUTE
OF THE STATE OF ALASKA FORBIDDING THE USE OF SALMON TRAPS.  ITS SUIT
WAS DISMISSED, AND THE SUPREME COURT OF ALASKA AFFIRMED.  HELD: 

1.  NEITHER THE WHITE ACT NOR SEC. 4 OF THE ALASKA STATEHOOD ACT
CONFERRED AUTHORITY ON THE SECRETARY OF THE INTERIOR TO PERMIT
METLAKATLANS TO USE SALMON TRAPS.  ORGANIZED VILLAGE OF KAKE V. EGAN,
POST, P. 60.  P. 54. 

2.  THE AUTHORITY TO ISSUE REGULATIONS GOVERNING THE METLAKATLA
INDIAN RESERVATION, WHICH WAS GRANTED TO THE SECRETARY OF THE INTERIOR
BY THE 1891 ACT, HAS NOT BEEN REPEALED OR IMPAIRED, AND HE HAS POWER TO
ISSUE REGULATIONS CONCERNING THE FISHING RIGHTS OF THESE INDIANS ON
THIS RESERVATION WHICH WOULD SUPERSEDE STATE LAW; BUT THE PRESENT
REGULATIONS DID NOT PURPORT TO BE ISSUED UNDER THAT AUTHORITY.  THEY
PURPORTED TO BE ISSUED UNDER A MISCONCEIVED DUTY WRONGLY READ INTO THE
ALASKA STATEHOOD ACT.  PP. 54-59. 

3.  THE JUDGMENT OF THE SUPREME COURT OF ALASKA IS VACATED AND THE
CASE IS REMANDED TO THAT COURT, THERE TO BE HELD TO GIVE AMPLE
OPPORTUNITY FOR THE SECRETARY OF THE INTERIOR WITH ALL REASONABLE
EXPEDITION TO DETERMINE PRIOR TO THE 1963 SALMON-FISHING SEASON WHAT,
IF ANY, AUTHORITY HE CHOOSES TO EXERCISE IN THE LIGHT OF THIS OPINION;
AND THE STAY HERETOFORE GRANTED IS CONTINUED IN FORCE UNTIL THE END OF
THE 1962 SALMON-FISHING SEASON.  P. 59. 

METLAKATLA INDIAN COMMUNITY, ANNETTE ISLANDS RESERVE, V. EGAN, GOVERNOR
OF ALASKA, ET AL. 

APPEAL FROM THE SUPREME COURT OF ALASKA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A DECISION OF THE SUPREME COURT OF THE STATE
OF ALASKA, - ALASKA - , 362 P.2D 901, AFFIRMING THE DENIAL OF AN
INJUNCTION AGAINST INTERFERENCE BY THE STATE WITH APPELLANT'S USE OF
FISH TRAPS IN THE ANNETTE ISLANDS OF SOUTHEASTERN ALASKA.  APPELLANT
RESTS ITS CLAIM IN PART ON REGULATIONS PROMULGATED BY THE SECRETARY OF
THE INTERIOR WHEREBY THE METLAKATLA INDIAN COMMUNITY WAS ACCORDED THE
RIGHT TO ERECT AND TO OPERATE SALMON TRAPS AT FOUR LOCATIONS IN WATERS
SURROUNDING THE ANNETTE ISLANDS, WHICH CONGRESS SET ASIDE FOR ITS USE
IN 1891.  ALASKA CHALLENGED THIS AUTHORIZATION BY A STATE CONSERVATION
LAW FORBIDDING THE USE OF SALMON TRAPS. 

LONG BEFORE THE WHITE MAN CAME TO ALASKA, THE ANNUAL MIGRATIONS OF
SALMON FROM THE SEA INTO ALASKA'S RIVERS TO SPAWN SERVED AS A FOOD
SUPPLY FOR THE NATIVES.  COMMERCIAL SALMON FISHING HAS BECOME VITAL FOR
ALASKA'S ECONOMY, BUT ITS EXPLOITATION SERIOUSLY THREATENED THE
RESOURCE EVEN BEFORE THE TURN OF THE CENTURY.  SEE GRUENING, THE STATE
OF ALASKA (1954), PP. 75, 97.  CONGRESS IN 1889, IN 1896, IN 1906, AND
AGAIN IN 1924 ENACTED CONSERVATION MEASURES, PROHIBITING ANY
OBSTRUCTION OF WATERS TO IMPEDE SALMON MIGRATION, LIMITING THE TIMES
AND MEANS OF TAKING SALMON, AND AUTHORIZING THE APPROPRIATE DEPARTMENT
TO IMPOSE FURTHER RESTRICTIONS.  (FN1)  WHEN ALASKA WAS ESTABLISHED AS
A STATE, CONGRESS WITHHELD JURISDICTION OVER HER FISHERIES UNTIL SHE
HAD MADE ADEQUATE PROVISION FOR THEIR ADMINISTRATION.  (FN2) 

EQUALLY WITH CONGRESS, ALASKA HAS BEEN CONCERNED WITH THE EVILS OF
OVEREXPLOITATION.  IN PARTICULAR SHE SAW A MENACE IN THE FISH TRAP, A
LABOR-SAVING BUT COSTLY DEVICE, WHICH BECAME IN HER EYES THE SYMBOL OF
EXPLOITATION OF HER RESOURCES BY "STATESIDE" COLONIALISM.  SEE ROGERS,
ALASKA IN TRANSITION (1960), PP. 4-15; GRUENING, SUPRA, AT PP. 392-407;
GRUENING, LET US END AMERICAN COLONIALISM (1955), REPRINTED AT 103
CONG. REC. 470-474.  THE FISH TRAP, "A FORMIDABLE STRUCTURE," ALASKA
PACIFIC FISHERIES V. UNITED STATES, 248 U.S. 78, 87, CONSISTS
PRINCIPALLY OF A FENCE OR NETTING STRETCHED ACROSS OR PARTLY ACROSS A
STREAM TO OBSTRUCT THE UPSTREAM PROGRESS OF THE SALMON AND TURN THE
FISH INTO THE "HEART" OR "POT" OF THE TRAP, WHERE THEY ARE IMPRISONED
UNTIL REMOVED.  SEE ROGERS, SUPRA, AT P. 7; GRUENING, THE STATE OF
ALASKA, SUPRA, AT PP. 169-170.  AT ONE TIME THERE WERE ABOUT 700 SALMON
TRAPS IN OPERATION IN ALASKA.  THE SECRETARY OF THE INTERIOR FELT THAT
THE FISH TRAP'S THREAT TO CONSERVATION COULD BE ADEQUATELY DEALT WITH
BY REGULATING THE NUMBER OF FISH PERMITTED TO ESCAPE.  (FN3)  ALASKA
VIGOROUSLY OPPOSED THIS.  THE TERRITORIAL LEGISLATURE SEVERAL TIMES
SENT MEMORIALS TO CONGRESS URGING ABOLITION OF TRAP FISHING.  (FN4)  AN
ORDINANCE TO ABOLISH ALL COMMERCIAL TRAPS WAS APPROVED BY ALASKA VOTERS
ALONG WITH THE PROPOSED STATE CONSTITUTION IN 1956, AND IN EARLY 1959
THE FIRST STATE LEGISLATURE TURNED THIS ORDINANCE INTO THE STATUTE HERE
UNDER REVIEW.  (FN5) 

THE METLAKATLA INDIANS, SOME 800, LED BY A BRITISH MISSIONARY, MOVED
FROM BRITISH COLUMBIA TO ALASKA IN 1887.  IN 1891 THE ANNETTE ISLANDS,
SOUTH OF KETCHIKAN AT THE EXTREME LOWER END OF THE ALASKAN ARCHIPELAGO,
WERE "SET APART AS A RESERVATION" BY CONGRESS FOR THE METLAKATLANS AND
OTHER INDIANS, "TO BE HELD AND USED BY THEM IN COMMON, UNDER SUCH RULES
AND REGULATIONS, AND SUBJECT TO SUCH RESTRICTIONS, AS MAY BE PRESCRIBED
FROM TIME TO TIME BY THE SECRETARY OF THE INTERIOR."  26 STAT. 1095,
1101, 48 U.S.C. SEC. 358.  IN 1915 THE SECRETARY ISSUED REGULATIONS, 25
CFR (1939 ED.), PT. 1, ESTABLISHING AN ELECTIVE COUNCIL TO MAKE LOCAL
ORDINANCES FOR METLAKATLA, AND ALSO PERMITTING MEMBERS OF THE COMMUNITY
TO OBTAIN PERMITS FOR THE USE OF SALMON TRAPS IN WATERS ADJACENT TO THE
ANNETTE ISLANDS.  THE NEXT YEAR, IN FURTHERANCE OF THE SECRETARY'S PLAN
TO ESTABLISH A SALMON CANNERY AT METLAKATLA, PRESIDENT WILSON BY
PROCLAMATION DECLARED THE WATERS WITHIN 3,000 FEET OF CERTAIN OF THESE
ISLANDS TO BE A PART OF THE METLAKATLA RESERVE, TO BE USED BY THE
INDIANS AS A SOURCE OF SUPPLY FOR THE INTENDED CANNERY, "UNDER THE
GENERAL FISHERIES LAWS AND REGULATIONS OF THE UNITED STATES AS
ADMINISTERED BY THE SECRETARY OF COMMERCE."  39 STAT. 1777.  (FN6)  IN
1918, WITHOUT REFERENCE TO THE PROCLAMATION, THIS COURT UPHELD THE
RIGHT OF THE METLAKATLANS TO EXCLUDE OTHERS FROM THE WATERS SURROUNDING
THEIR ISLANDS ON THE GROUND THAT THESE WATERS WERE INCLUDED WITHIN THE
ORIGINAL RESERVATION BY CONGRESS.  ALASKA PACIFIC FISHERIES V. UNITED
STATES, 248 U.S. 78. 

EVER SINCE 1915, METLAKATLA HAS OPERATED FISH TRAPS WITH THE CONSENT
OF THE SECRETARY OF THE INTERIOR.  FOLLOWING THE ENACTMENT OF THE
STATE'S FISH-TRAP LAW IN 1959, THE SECRETARY IN THE EXERCISE OF HIS
TRANSITIONAL POWER OVER ALASKA FISHERIES BANNED ALL FISH TRAPS EXCEPT
THOSE OPERATED BY METLAKATLA AND BY OTHER INDIANS INVOLVED IN THE
COMPANION CASE, ORGANIZED VILLAGE OF KAKE V. EGAN, POST, P. 60.  24
FED. REG. 2053, 2056, 2069 (1959).  THE FOLLOWING YEAR, HAVING
RELINQUISHED GENERAL CONTROL OF THE FISHERIES, THE SECRETARY AGAIN
AUTHORIZED METLAKATLA TO OPERATE FISH TRAPS AT FOUR OF EIGHT SPECIFIED
LOCATIONS, CITING AS AUTHORITY THE WHITE ACT, 43 STAT. 464, AS AMENDED,
48 U.S.C. SECS. 221-228, AND SEC. 4 OF THE ALASKA STATEHOOD ACT, 72
STAT. 339, AS AMENDED BY 73 STAT. 141.  25 CFR (1961 SUPP.), PT. 88. 
(FN7) 

WITH THIS BACKGROUND WE REACH THE PRESENT CONTROVERSY.  IN MAY, 1959,
JUST BEFORE THE SALMON SEASON BEGAN, THE STATE WARNED METLAKATLA AND
OTHER INDIANS THAT SHE WOULD ENFORCE THE FISH-TRAP LAW AGAINST THEM. 
THE THREAT WAS INTENSIFIED WHEN THE STATE ARRESTED MEMBERS OF OTHER
INDIAN COMMUNITIES AND SEIZED ONE FISH TRAP.  SUITS WERE THEREUPON
FILED BY METLAKATLA AND BY THE APPELLANTS IN THE COMPANION CASE IN THE
INTERIM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA,
SEEKING AN INJUNCTION AGAINST INTERFERENCE WITH THEIR ASSERTED FEDERAL
RIGHTS TO FISH WITH TRAPS.  ALL COMPLAINTS WERE DISMISSED, 18 ALASKA -
, 174 F. SUPP. 500.  APPEAL WAS BROUGHT TO THIS COURT, AS THE SUPREME
COURT OF ALASKA HAD NOT YET BEEN FULLY ORGANIZED.  PENDING DECISION,
MR. JUSTICE BRENNAN GRANTED A STAY OF ENFORCEMENT BY THE STATE, 4 L.
ED. 2D 34, 80 S. CT. 33.  THE COURT ASSUMED JURISDICTION AND CONTINUED
THE STAY BUT REMANDED THE CASE TO THE NEWLY CONSTITUTED STATE SUPREME
COURT PRIMARILY FOR ITS DISPOSITION OF MATTERS OF LOCAL LAW, 363 U.S.
555.  THAT COURT AFFIRMED THE DISTRICT COURT'S DISMISSAL, HOLDING THE
FISH-TRAP LAW APPLICABLE TO METLAKATLA AND TO THE OTHER APPELLANTS, AND
UPHOLDING ITS VALIDITY AS SO APPLIED, - ALASKA - , 362 P.2D 901.  FROM
ITS JUDGMENT, THE APPEAL IS PROPERLY HERE UNDER 28 U.S.C. SEC. 1257. 
WE NOTED PROBABLE JURISDICTION, 368 U.S. 886. 

SEVERAL GROUNDS OF THE DECISION BELOW ARE NOW OUT OF THE CASE ON
CONCESSION OF ERROR BY ALASKA, BUT SHE FIRMLY STANDS ON THE JUDGMENT IN
HER FAVOR.  METLAKATLA ARGUES THAT IT IS IMMUNE FROM THE FISH-TRAP LAW
BECAUSE (1) STATE LAW CANNOT REGULATE INDIAN ACTIVITIES ON INDIAN
RESERVATIONS; (2) THE STATE CANNOT REGULATE A FEDERAL INSTRUMENTALITY;
AND (3) APPELLANT HAS BEEN AUTHORIZED TO OPERATE TRAPS BY THE SECRETARY
OF THE INTERIOR.  THE UNITED STATES HAS SUPPORTED METLAKATLA AS AMICUS
CURIAE, SEE 362 U.S. 967. 

THE INDIANS OF SOUTHEASTERN ALASKA, WHO HAVE VERY SUBSTANTIALLY
ADOPTED AND BEEN ADOPTED BY THE WHITE MAN'S CIVILIZATION, WERE NEVER IN
THE HOSTILE AND ISOLATED POSITION OF MANY TRIBES IN OTHER STATES.  AS
EARLY AS 1886 A FEDERAL JUDGE, HOLDING ALASKAN INDIANS SUBJECT TO THE
THIRTEENTH AMENDMENT, DENIED THAT THE PRINCIPLE OF INDIAN NATIONAL
SOVEREIGNTY ENUNCIATED IN WORCESTER V. GEORGIA, 6 PET. 515, APPLIED TO
THEM.  IN RE SAH QUAH, 31 F. 327 (D. ALASKA).  THERE WERE NO INDIAN
WARS IN ALASKA, ALTHOUGH ON AT LEAST ONE OCCASION, SEE GRUENING, THE
STATE OF ALASKA (1954), PP. 36-37, THERE WERE FEARS OF AN UPRISING. 
THERE WAS NEVER AN ATTEMPT IN ALASKA TO ISOLATE INDIANS ON
RESERVATIONS.  VERY FEW WERE EVER CREATED, AND THE PURPOSE OF THESE, IN
CONTRAST TO MANY IN OTHER STATES, WAS NOT TO CONFINE THE INDIANS FOR
THE PROTECTION OF THE WHITE SETTLERS BUT TO SAFEGUARD THE INDIANS
AGAINST EXPLOITATION.  ALASKAN INDIANS ARE NOW VOTING CITIZENS, SOME OF
WHOM OCCUPY PROMINENT PUBLIC OFFICE IN THE STATE GOVERNMENT.  SEE
UNITED STATES V. BOOTH, 17 ALASKA 561, 161 F. SUPP. 269 (D. ALASKA
1958); UNITED STATES V. LIBBY, MCNEIL & LIBBY, 14 ALASKA 37, 41-42, 107
F. SUPP. 697, 699 (D. ALASKA 1952).  METLAKATLANS, THE STATE TELLS US,
HAVE ALWAYS PAID STATE TAXES, IN CONTRAST TO THE PRACTICE DESCRIBED AND
PRESCRIBED FOR OTHER RESERVATIONS IN THE KANSAS INDIANS, 5 WALL.  737,
AND IT HAS ALWAYS BEEN ASSUMED THAT THE RESERVATION IS SUBJECT TO STATE
LAWS.  UNITED STATES V. BOOTH, 17 ALASKA, AT 563, 161 F. SUPP., AT
270.  CONGRESS IN 1936, 49 STAT. 1250, 48 U.S.C.  SEC. 358A, BY
AUTHORIZING THE SECRETARY OF THE INTERIOR TO CREATE INDIAN RESERVATIONS
OF LAND RESERVED FOR INDIAN USES UNDER 48 U.S.C. SEC. 358, SEEMS TO
HAVE BELIEVED THAT METLAKATLA WAS NO ORDINARY RESERVATION, SINCE
METLAKATLA ALONE IS COVERED IN SEC. 358.  FINALLY, IN UNITED STATES V.
BOOTH, SUPRA, THE DISTRICT COURT FOR ALASKA HELD THAT A CRIME COMMITED
ON THE METLAKATLA RESERVE, BEFORE THE EXTENSION OF JURISDICTION OVER
INDIAN COUNTRY TO ALASKA, SEE P. 56, INFRA, WAS PUNISHABLE UNDER
TERRITORIAL LAWS, SINCE FOR THE REASONS HERE OUTLINED THE RESERVE WAS
NOT "INDIAN COUNTRY" WITHIN THE MEANING OF 18 U.S.C. SECS. 1151-1153. 

THE WORDS "SET APART AS A RESERVATION," APPEARING IN THE STATUTE
CREATING THE ANNETTE ISLANDS RESERVE, ARE SUBSTANTIALLY THE SAME AS
USED IN NUMEROUS OTHER STATUTORY RESERVATIONS.  E.G., 13 STAT. 63
(UINTA VALLEY, UTAH); 13 STAT. 541, 559 (COLORADO RIVER); 18 STAT. 28
(GROS VENTRE AND OTHERS); 19 STAT. 28, 29 (PAWNEE).  NONE OF THESE
STATUTES MADE EXPRESS PROVISION FOR SELF-GOVERNMENT OR FOR STATE
GOVERNMENT.  SOME TREATIES, SUCH AS THAT WITH THE CHEROKEES IN 1828, 7
STAT. 311, EXPRESSLY EXCLUDED STATE LAWS.  OTHER TREATIES, HOWEVER,
WHILE SOMETIMES PHRASED IN TERMS OF A GIFT OR ASSIGNMENT RATHER THAN A
RESERVATION OF LAND, MADE NO MENTION OF STATE POWER.  E.G., TREATY WITH
THE SHAWNEE TRIBE, 1825, 7 STAT. 284; TREATY WITH THE POTAWATOMIES,
1837, 7 STAT. 532; TREATY WITH THE NEW YORK INDIANS, 1838, 7 STAT. 550,
551; TREATY WITH THE SACS AND FOXES, 1842, 7 STAT. 596.  LATER TREATIES
"SET APART FOR THE ABSOLUTE AND UNDISTURBED USE AND OCCUPATION" OF THE
INDIANS CERTAIN LANDS.  E.G., TREATY WITH THE ARAPAHOES AND CHEYENNES,
1867, 15 STAT. 593, 594; TREATY WITH THE CROW INDIANS, 1868, 15 STAT.
649, 650.  THE 1868 TREATY WITH THE NAVAJOS WAS SIMILAR.  15 STAT. 667,
668.  AND THE 1855 TREATY WITH THE QUINAULT INDIAN TRIBE, 12 STAT. 971,
WHICH THE SUPREME COURT OF WASHINGTON HELD BARRED STATE REGULATION OF
RESERVATION FISHING, PROMISED ONLY THAT LANDS WOULD BE "RESERVED, FOR
THE USE AND OCCUPATION OF THE TRIBES."  IT WAS IMPLEMENTED BY AN
EXECUTIVE ORDER OF NOVEMBER 7, 1873, BY WHICH CERTAIN LANDS WERE
"WITHDRAWN FROM SALE AND SET APART FOR THE USE" OF THE TRIBE.  SEE
PIONEER PACKING CO. V. WINSLOW, 159 WASH. 655, 657-658, 294 P. 557,
558. 

THE PROVISION CREATING THE METLAKATLA RESERVE IN 1891 WAS ADDED TO A
HOUSE BILL DEALING WITH TIMBER LANDS ON THE FLOOR OF THE SENATE BY
NEBRASKA'S SENATOR MANDERSON.  RECITING THE UNFORTUNATE EXPERIENCE OF
THE METLAKATLANS IN BRITISH COLUMBIA AND THEIR EMIGRATION TO ALASKA,
SENATOR MANDERSON EXPLAINED THAT HIS AMENDMENT WAS DESIGNED TO DISPEL
FEARS OF EXPULSION FROM THEIR NEW LANDS AS FROM THEIR OLD, OR OF
INTRUSION BY OUTSIDERS SEEKING TO EXPLOIT THE RESOURCES OF THE
ISLANDS.  THE PURPOSE, HE STATED, WAS "SIMPLY TO ALLOW THIS BAND OF
INDIANS TO REMAIN THERE UNDER SUCH RULES AND REGULATIONS AS THE
SECRETARY OF THE INTERIOR MAY IMPOSE, AND GIVE THEM SOME RECOGNIZED
FOOTING AT THAT PLACE."  REMARKS BY SENATORS DAWES AND DOLPH WERE TO
THE SAME EFFECT.  21 CONG. REC. 10092-10093 (1890).  THE AMENDMENT WAS
AGREED TO AND ADOPTED BY BOTH HOUSES AFTER A CONFERENCE, WITH NO
FURTHER DISCUSSION. 

THIS PROVISION SUBJECTING METLAKATLA TO RULES AND REGULATIONS OF THE
SECRETARY OF THE INTERIOR IS UNUSUAL.  SINCE 1849 THE SECRETARY HAD
BEEN THE OFFICER OF THE UNITED STATES CHARGED WITH ADMINISTRATION OF
THE INDIAN LAWS, BUT NONE OF THE TREATIES OR STATUTES WHICH HAVE COME
TO OUR ATTENTION CONTAINED SUCH A PROVISION.  THE CHEYENNE AND CROW
TREATIES, SUPRA, PROVIDED THAT CONGRESS MIGHT REGULATE MATTERS ON THE
RESERVATIONS, BUT THIS WAS NO DELEGATION OF CONGRESS' POWERS TO THE
SECRETARY.  IT WAS BUT A RECOGNITION BY THE INDIANS OF POWERS THE
CONSTITUTION GAVE TO THE NATIONAL LEGISLATURE. 

THE REGULATIONS ISSUED BY THE SECRETARY FOR THE GOVERNMENT OF THE
ANNETTE ISLANDS JANUARY 28, 1915, APPEAR TO BE WITHOUT PARALLEL.  NO
SUCH RULES APPLYING TO OTHER RESERVATIONS ARE TO BE FOUND IN THE CODE
OF FEDERAL REGULATIONS.  THE SECRETARY VESTED POWERS OF LOCAL
GOVERNMENT IN AN ELECTIVE COUNCIL, 25 CFR (1939 ED.), SEC. 1.2, WHICH
WAS GIVEN AUTHORITY TO PASS ORDINANCES REQUIRED NOT TO CONFLICT WITH
"THE LAWS OF THE UNITED STATES, THE LAWS OF THE TERRITORY OF ALASKA, OR
THE RULES AND REGULATIONS IN THIS PART,"  SEC. 1.10, AND SUBJECT TO
REVIEW BY THE SECRETARY, SEC. 1.62.  AS A CONDITION TO THE RIGHT TO
VOTE IN LOCAL ELECTIONS, MEMBERS OF THE RESERVE - LIMITED TO
METLAKATLANS AND OTHER NATIVES, SEC. 1.51 - WERE REQUIRED TO SWEAR
OBEDIENCE TO LOCAL LAWS, LAWS OF THE UNITED STATES, AND LAWS OF THE
TERRITORY OF ALASKA, SEC. 1.52.  THUS THE SECRETARY, IN THE EXERCISE OF
THE AUTHORITY DELEGATED HIM BY CONGRESS, SUBJECTED SELF-GOVERNMENT OF
METLAKATLA NOT ONLY TO FEDERAL OVERSIGHT BUT TO TERRITORIAL LAWS AS
WELL.  HOWEVER, AS DISCUSSED ABOVE, AN ADDITIONAL REGULATION ISSUED BY
THE SECRETARY IN 1915 AUTHORIZED THE USE OF FISH TRAPS AT METLAKATLA,
AND THIS PERMISSION HAS BEEN CONTINUED IN REGULATIONS ISSUED SINCE
STATEHOOD. 

ALASKA URGES THAT THE REGULATIONS ARE INVALID BECAUSE NEITHER THE
WHITE ACT NOR THE STATEHOOD ACT CONFERRED AUTHORITY ON THE SECRETARY TO
PERMIT METLAKATLANS TO USE FISH TRAPS.  THE STATE'S PREMISE IS CORRECT,
ORGANIZED VILLAGE OF KAKE V. EGAN, POST, P. 60.  HOWEVER, CONGRESS IN
1891 GAVE THE SECRETARY AUTHORITY TO MAKE RULES GOVERNING THE
METLAKATLA RESERVATION, AND HIS AUTHORITY, LIKE THE RESERVATION ITSELF,
ALASKA PACIFIC FISHERIES V. UNITED STATES, 248 U.S. 78, EXTENDED TO THE
WATERS SURROUNDING THE ISLANDS.  DOES THIS ACT VALIDATE THE REGULATIONS
IN LIGHT OF SUBSEQUENT LEGISLATIVE AND EXECUTIVE ACTIONS? 

THE PRESIDENTIAL PROCLAMATION OF 1916, 39 STAT. 1777, DECLARED WATERS
WITHIN 3,000 FEET OF ANNETTE AND ADJACENT ISLANDS TO BE A PART OF THE
METLAKATLA RESERVATION AND PROVIDED THAT THE INDIANS SHOULD HAVE THE
USE OF THESE WATERS "UNDER THE GENERAL FISHERIES LAWS AND REGULATIONS
OF THE UNITED STATES AS ADMINISTERED BY THE SECRETARY OF COMMERCE." 
ALASKA ARGUES THAT THE PURPOSE OF THIS PROVISION WAS TO PLACE
METLAKATLA FISHERMAN IN THE SAME POSITION AS ALL OTHERS IN ALASKA BY
SUBJECTING THEM TO THE SAME LAWS.  IN 1916 THE GENERAL LAWS WERE
FEDERAL; NOW THEY ARE THOSE OF THE STATE.  THEREFORE, THE STATE
CONTENDS, THE POLICY OF THE PROCLAMATION REQUIRES THAT THE PROVISION BE
CONSTRUED AS SUBJECTING THE METLAKATLANS TO THE LAWS GOVERNING ALL
OTHER FISHERMEN, WHICH NOW INCLUDE THE STATE FISH-TRAP LAW.  THE
METLAKATLANS HAVE THE RIGHT TO EXCLUDE OTHERS FROM THEIR WATERS, ALASKA
AGREES, BUT NOT THE RIGHT TO BE FREE FROM REGULATION. 

ALASKA DOES NOT ARGUE THAT THE PROCLAMATION DEPRIVED THE SECRETARY OF
THE INTERIOR OF THE AUTHORITY CONGRESS GAVE HIM TO PRESCRIBE RULES
GOVERNING FISHING AND OTHER ACTIVITIES ON THE ANNETTE ISLANDS. 
ASSUMING THE PRESIDENT HAD POWER TO DO SO, HE DID NOT PURPORT TO
EXERCISE IT.  QUITE THE CONTRARY.  THE PROCLAMATION RECITES THAT THE
SECRETARY HAS DETERMINED TO ESTABLISH A CANNERY FOR THE METLAKATLANS,
THAT THE SECRETARY HAS BEEN GIVEN AUTHORITY TO MAKE REGULATIONS FOR
METLAKATLA BY THE STATUTE OF 1891, AND THAT PROTECTION OF THE INDIANS'
FISHING RIGHTS IS REQUIRED TO ASSURE A SUPPLY OF FISH FOR THE CANNERY. 
APPARENTLY THE PROCLAMATION WAS PROMPTED BY THE THREATENED ENCROACHMENT
OF NON-INDIAN FISHERMEN INTO METLAKATLA WATERS AND THE FEAR THAT THE
RESERVATION OF THE ISLANDS MIGHT NOT PROTECT THE INDIANS AGAINST SUCH
INTRUSIONS.  NO STATUTORY AUTHORITY FOR THE PROCLAMATION WAS CITED.  IT
WAS DECLARED TO BE ISSUED UNDER AUTHORITY OF "THE LAWS OF THE UNITED
STATES."  IT IS CLEAR THAT PRESIDENT WILSON WAS ATTEMPTING TO ASSIST
AND PROMOTE THE PLANS OF THE SECRETARY OF THE INTERIOR TO DEVELOP THE
RESERVE UNDER HIS STATUTORY AUTHORITY, NOT TO LIMIT OR DESTROY THAT
AUTHORITY.  THE SUBJECTION OF METLAKATLA TO GENERAL FISHERIES LAWS AND
TO REGULATIONS OF THE SECRETARY OF COMMERCE THUS DID NOT MAKE THOSE
LAWS AND REGULATIONS SUPERIOR TO REGULATIONS OF THE SECRETARY OF THE
INTERIOR.  RATHER THE GENERAL LAWS AND COMMERCE REGULATIONS WERE
ADOPTED AS A PART OF THE INTERIOR REGULATIONS, SO FAR AS NOT IN
CONFLICT WITH OTHER RULES ADOPTED BY THE SECRETARY OF THE INTERIOR AND
SUBJECT TO HIS FURTHER MODIFICATION UNDER THE POWER GIVEN HIM IN 1891. 

NOR DID THE WHITE ACT IMPAIR THE SECRETARY'S POWER.  THAT STATUTE
PERMITTED THE SECRETARY FOR CONSERVATION PURPOSES TO LIMIT THE TAKING
OF SALMON IN AREAS OF HIS DESIGNATION, BUT PROHIBITED HIS GRANTING
EXCLUSIVE RIGHTS IN SO DOING.  THIS COURT IN HYNES V. GRIMES PACKING
CO., 337 U.S. 86, HELD THAT THE PROHIBITION BARS THE SECRETARY FROM
CREATING EXCLUSIVE WHITE ACT RIGHTS IN INDIANS AS WELL AS IN NON
INDIANS, BUT IT EXPRESSLY DISCLAIMED HOLDING THAT NO EXCLUSIVE INDIAN
RIGHTS MAY EXIST.  337 U.S., AT 118-119, 122-123.  THE SECRETARY'S
REGULATIONS DID NOT CREATE EXCLUSIVITY; THAT WAS A PART OF THE
RESERVATION AS CREATED IN 1891 AND CLARIFIED BY THE PROCLAMATION OF
1916, WHICH EXCLUDED OTHERS FROM FISHING IN METLAKATLA WATERS. 

IN 1958, 72 STAT. 545, ALASKA WAS ADDED TO THE LIST OF STATES AND
TERRITORIES PERMITTED TO EXERCISE CIVIL AND CRIMINAL JURISDICTION OVER
INDIAN RESERVATIONS.  THE STATE HAS NOT ARGUED THAT THIS TOOK AWAY THE
POWER OF THE SECRETARY OF THE INTERIOR TO MAKE REGULATIONS CONTRARY TO
STATE LAW.   APPELLANT HAS ARGUED, TO THE CONTRARY, THAT THE STATUTE
EXPRESSLY PRESERVED INDIAN FISHING RIGHTS FROM STATE LAWS.  THE STATUTE
GRANTING STATES CIVIL AND CRIMINAL JURISDICTION WAS PASSED IN 1953, 67
STAT. 588, 18 U.S.C. SEC. 1162, 28 U.S.C. SEC. 1360.  SUBSECTION (B) OF
18 U.S.C. SEC. 1162 PROVIDES THAT NOTHING THEREIN SHALL AUTHORIZE
ALIENATION, ENCUMBRANCE, OR TAXATION OF INDIAN PROPERTY, "OR SHALL
AUTHORIZE REGULATION OF THE USE OF SUCH PROPERTY IN A MANNER
INCONSISTENT WITH ANY FEDERAL TREATY, AGREEMENT, OR STATUTE OR WITH ANY
REGULATION MADE PURSUANT THERETO; OR SHALL DEPRIVE ANY INDIAN OR ANY
INDIAN TRIBE, BAND, OR COMMUNITY OF ANY RIGHT, PRIVILEGE, OR IMMUNITY
AFFORDED UNDER FEDERAL TREATY, AGREEMENT, OR STATUTE WITH RESPECT TO
HUNTING, TRAPPING, OR FISHING OR THE CONTROL, LICENSING, OR REGULATION
THEREOF." 

THIS STATUTE EXPRESSLY PROTECTS AGAINST STATE INVASION ALL USES OF
INDIAN PROPERTY AUTHORIZED BY FEDERAL TREATY, AGREEMENT, STATUTE, OR
REGULATION, BUT ONLY THOSE FISHING RIGHTS AND PRIVILEGES GIVEN BY
FEDERAL TREATY, AGREEMENT, OR STATUTE.  IT MIGHT PLAUSIBLY BE ARGUED,
THEREFORE, THAT FISHING RIGHTS GIVEN BY REGULATION ARE NOT PROTECTED
AND STATE JURISDICTION IS ESTABLISHED.  LEGISLATIVE HISTORY IS SILENT
AS TO THE INTERPRETATION OF THE PROVISION.  SEE H.R. REP. NO. 848, 83D
CONG., 1ST SESS.; S. REP. NO. 699, 83D CONG., 1ST SESS.; 99 CONG. REC.
9962, 10782, 10928 (1953).  THE APPARENT PURPOSE OF THE PROVISO WAS TO
PRESERVE FEDERALLY GRANTED FISHING RIGHTS.  IT WOULD BE SHEER
SPECULATION TO ATTRIBUTE SIGNIFICANCE TO THE IMPERFECT PARALLELISM OF
THE PROVISIONS PROTECTING PROPERTY AND FISHING RIGHTS IN THE ABSENCE OF
ANY SUGGESTED REASON FOR EXCLUDING FISHING RIGHTS BASED ON
REGULATIONS.  THE PROCESS OF STATUTORY DRAFTING AND EVOLUTION, HERE
VEILED FROM SCRUTINY, IS TOO IMPRECISE TO PERMIT SUCH AN INFERENCE. 
CF. UNITED STATES V. MERSKY, 361 U.S. 431, 437.  IN ANY EVENT, THE
PROVISO ALSO PROTECTS RIGHTS GIVEN THE INDIANS BY STATUTE RESPECTING
THE CONTROL AND REGULATION OF FISHING, AND THE 1891 STATUTE GAVE THE
METLAKATLANS THE RIGHT TO FISH UNDER REGULATIONS OF THE SECRETARY OF
THE INTERIOR. 

PROVIDING FOR THE CONVEYANCE OF UNITED STATES PROPERTIES "USED FOR THE
SOLE PURPOSE OF CONSERVATION AND PROTECTION OF THE FISHERIES AND
WILDLIFE OF ALASKA," CONTEMPLATED TRANSFER TO THE STATE OF THE SAME
MEASURE OF ADMINISTRATION AND JURISDICTION OVER FISHERIES AND WILDLIFE
AS POSSESSED BY OTHER STATES, S. REP. NO. 1929, 81ST CONG., 2D SESS. 13
14 (1950); H.R. REP. NO. 1731, 80TH CONG., 2D SESS. 1 (1948); S. REP.
NO. 1028, 83D CONG., 2D SESS. 31 (1954); S. REP. NO. 1163, 85TH CONG.,
1ST SESS. 3 (1957), SEE GEER V. CONNECTICUT, 161 U.S. 519, AFTER THE
TRANSITION PERIOD DURING WHICH THE STATE WAS TO ESTABLISH MACHINERY FOR
THIS PURPOSE.  SECTION 4, HOWEVER, AS AMENDED BY 73 STAT. 141, REQUIRED
ALASKA TO DISCLAIM ALL RIGHT AND TITLE TO ANY UNITED STATES PROPERTY
NOT GRANTED HER BY THE STATUTE, AND ALSO "TO ANY LANDS OR OTHER
PROPERTY (INCLUDING FISHING RIGHTS), THE RIGHT OR TITLE TO WHICH MAY BE
HELD BY ANY INDIANS, ESKIMOS, OR ALEUTS (HEREINAFTER CALLED NATIVES) OR
IS HELD BY THE UNITED STATES IN TRUST FOR SAID NATIVES."  SUCH PROPERTY
WAS TO "BE AND REMAIN UNDER THE ABSOLUTE JURISDICTION AND CONTROL OF
THE UNITED STATES UNTIL DISPOSED OF UNDER ITS AUTHORITY, EXCEPT TO SUCH
EXTENT AS THE CONGRESS HAS PRESCRIBED OR MAY HEREAFTER PRESCRIBE," WITH
IMMATERIAL EXCEPTIONS, AND PROVIDED THAT CLAIMS AGAINST THE UNITED
STATES ARE NEITHER ENLARGED, DIMINISHED, NOR RECOGNIZED BY THESE
PROVISIONS.  THIS DISCLAIMER IS SUBSTANTIALLY THE SAME AS FOUND IN THE
ACTS ADMITTING 13 OTHER STATES.  SEE S. REP. NO. 315, 82D CONG., 1ST
SESS. 15 (1951). 

ALASKA DOES NOT EXPRESSLY ARGUE THAT THE SECRETARY'S POWER WAS
DESTROYED BY THE STATEHOOD ACT.  SHE DOES, HOWEVER, CONTEND THAT
CONTROL OF ALL FISHING WAS TRANSFERRED TO THE STATE WITH NO EXCEPTION
FOR INDIAN FISHING, AND THAT ONLY THE EXCLUSIVENESS OF METLAKATLA'S
FISHING RIGHTS WAS PRESERVED.  BUT LEGISLATIVE HISTORY MAKES CLEAR THAT
THE TRANSFER OF JURISDICTION OVER FISHING WAS SUBJECT TO RIGHTS
RESERVED  SEC. 4.  S. REP. NO. 1929, 81ST CONG., 2D SESS. 2 (1950). 

CLEARLY THIS SECTION DOES NOT PROTECT ONLY "RECOGNIZED" INDIAN RIGHTS
- THOSE THE TAKING OF WHICH WOULD BE COMPENSABLE BY THE UNITED STATES. 
COMMITTEE REPORTS DEMONSTRATE THE AIM OF CONGRESS TO PRESERVE THE
STATUS QUO AS TO A BROADER CLASS OF "RIGHT," INCLUDING, IN THE CASE OF
LAND, MERE POSSESSION OR OCCUPANCY.  COMPENSATION WAS AN ISSUE CONGRESS
TOOK PAINS TO AVOID.  SEE H.R. REP. NO. 1731, 80TH CONG., 2D SESS. 15
(1948); H.R. REP. NO. 255, 81ST CONG., 1ST SESS. 13 (1949); S. REP. NO.
1028, 83RD CONG., 2D SESS. 4, 29-30 (1954); S. REP.  NO. 1163, 85TH
CONG., 1ST SESS. 15 (1957).  WE NEED NOT HERE EXPLORE THE REMOTER
REACHES OF THIS PROTECTION.  THE METLAKATLA RESERVATION WAS INDIAN
PROPERTY WITHIN SEC. 4.  WHETHER OR NOT THE "ABSOLUTE JURISDICTION"
RETAINED BY THE UNITED STATES IS SEC. 4 IS EXCLUSIVE OF STATE
AUTHORITY, SEE ORGANIZED VILLAGE OF KAKE V. EGAN, POST, P. 60, THE
STATUTE CLEARLY PRESERVES FEDERAL AUTHORITY OVER THE RESERVATION. 
FEDERAL AUTHORITY WAS LODGED IN THE SECRETARY IN 1891, AND IT WAS NOT
DISLODGED BY THE STATEHOOD ACT. 

HOWEVER, IN ISSUING THE PRESENT REGULATIONS THE SECRETARY RELIED NOT
ON THE 1891 STATUTE BUT ON THE WHITE ACT AND THE STATEHOOD ACT, NEITHER
OF WHICH AUTHORIZED HIS ACTION.  IN A LETTER TO THE SOLICITOR GENERAL,
FILED BY THE UNITED STATES AS AN APPENDIX TO ITS BRIEF AS AMICUS
CURIAE, THE SECRETARY LEFT NO DOUBT THAT IN ISSUING THE REGULATIONS HE
ACTED UNDER COMPULSION OF WHAT HE CONCEIVED TO BE HIS DUTY UNDER THE
STATEHOOD ACT TO PRESERVE THE STATUS QUO.  HE DEEMED HIMSELF, AS IT
WERE, TO BE A MERE AUTOMATON.  THE EXERCISE OF ANY AUTHORITY THAT THE
SECRETARY HAS UNDER THE RESERVATION STATUTE TO ALLOW FISH TRAPS
NECESSARILY INVOLVES HIS JUDGMENT ON A COMPLEX OF FACTS, HIS EVALUATION
OF THE RELATIVE WEIGHTS OF THE INDIANS' NEED FOR TRAPS AND OF THE
IMPACT OF TRAPS AT METLAKATLA ON THE STATE'S INTEREST IN CONSERVATION. 
WE CANNOT MAKE THIS DETERMINATION FOR HIM. 

THE APPROPRIATE COURSE IS TO VACATE THE JUDGMENT OF THE SUPREME COURT
OF ALASKA AND REMAND THE CASE THERE TO BE HELD TO GIVE AMPLE
OPPORTUNITY FOR THE SECRETARY OF THE INTERIOR WITH ALL REASONABLE
EXPEDITION TO DETERMINE, PRIOR TO THE 1963 SALMON FISHING SEASON, WHAT,
IF ANY, AUTHORITY HE CHOOSES TO EXERCISE IN LIGHT OF THIS OPINION. 
SHOULD THE SECRETARY FAIL SO TO ACT, THE PARTIES MAY APPLY TO THE
ALASKA COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  SEE ADDISON V. HOLLY HILL FRUIT PRODUCTS, INC., 322 U.S. 607,
618-619.  THE STAY GRANTED BY MR. JUSTICE BRENNAN, AND CONTINUED BY THE
COURT, WILL REMAIN IN FORCE UNTIL THE END OF THE 1962 SALMON FISHING
SEASON, AS DEFINED IN THE REGULATIONS ISSUED BY THE SECRETARY OF THE
INTERIOR.  IT IS SO ORDERED. 

FN1  25 STAT. 1009; 29 STAT. 316 (TREASURY DEPARTMENT); 34 STAT. 478,
NOW 48 U.S.C. SECS. 230-239, 241-242 (COMMERCE DEPARTMENT); 43 STAT.
464, NOW 48 U.S.C. SECS. 221-228 (COMMERCE DEPARTMENT).  THE SECRETARY
OF THE INTERIOR SUCCEEDED TO THESE RESPONSIBILITIES IN 1939.  1939
REORGANIZATION PLAN NO. II, SEC. 4(E), 53 STAT. 1431, 1433. 

FN2  72 STAT. 339, 340-341.  ALASKA ADOPTED A COMPREHENSIVE FISH AND
GAME CODE APRIL 17, 1959, ALASKA LAWS 1959, C. 94, AND RECEIVED FULL
CONTROL OVER HER RESOURCES SOON AFTERWARD. 

FN3  LETTER OF DOUGLAS MCKAY, SECRETARY OF THE INTERIOR, TO HERBERT
C. BONNER, CHAIRMAN, HOUSE COMM. ON MERCHANT MARINE & FISHERIES, OCT.
7, 1955. 

FN4  ALASKA LAWS 1931, PP. 275-276; 1947, PP. 325-326; 1953, PP. 401
402; 1955, PP. 447-448. 

FN5  ALASKA LAWS 1959, C. 17.  AS AMENDED BY ID., C. 95, THE STATUTE
READS AS FOLLOWS: 

"SECTION 1.  IT SHALL BE UNLAWFUL TO OPERATE FISH TRAPS, INCLUDING
BUT NOT LIMITED TO FLOATING, PILE-DRIVEN OR HAND-DRIVEN FISH TRAPS, IN
THE STATE OF ALASKA ON OR OVER ANY OF ITS LANDS, TIDELANDS, SUBMERGED
LANDS, OR WATERS; PROVIDED NOTHING IN THIS SECTION SHALL PREVENT THE
OPERATION OF SMALL HAND-DRIVEN FISH TRAPS OF THE TYPE ORDINARILY USED
ON RIVERS OF ALASKA WHICH ARE OTHERWISE LEGALLY OPERATED IN OR ABOVE
THE MOUTH OF ANY STREAM OR RIVER IN ALASKA; NOR SHALL THIS ACT BE
CONSTRUED SO AS TO VIOLATE SEC. 4 OF PUBLIC LAW 85-508, 72 STAT. 339,
WHICH CONSTITUTES A COMPACT BETWEEN THE UNITED STATES AND ALASKA,
PURSUANT TO WHICH THE STATE DISCLAIMS ALL RIGHT AND TITLE TO ANY LANDS
OR OTHER PROPERTY (INCLUDING FISHING RIGHTS), THE RIGHT OR TITLE TO
WHICH MAY BE HELD BY ANY INDIANS, ESKIMOS, OR ALEUTS (HEREINAFTER
CALLED NATIVES) OR IS HELD BY THE UNITED STATES IN TRUST FOR SAID
NATIVES."    FN6  IN 1934, WHEN THE METLAKATLANS WERE MADE CITIZENS,
CONGRESS DECLARED THAT RESERVATIONS MADE FOR THEM BY STATUTE, ORDER, OR
PROCLAMATION SHOULD "CONTINUE IN FULL FORCE AND EFFECT," 48 STAT. 667. 

FN7  SINCE 1944 METLAKATLA HAS BEEN A CHARTERED FEDERAL CORPORATION
UNDER A CONSTITUTION ADOPTED PURSUANT TO THE WHEELER-HOWARD ACT, 48
STAT. 984, 988, AS AMENDED, 49 STAT. 1250, 25 U.S.C. SECS. 473A, 476,
477. 
..END :





ORGANIZED VILLAGE OF KAKE V. EGAN 369 U.S. 60 


NO. 3.  ARGUED DECEMBER 14, 1961 - DECIDED MARCH 5, 1962 - ALASKA - ,
362 P.2D 901, AFFIRMED. 


APPELLANTS ARE INCORPORATED COMMUNITIES OF THLINGET INDIANS IN
ALASKA.  NO RESERVATION HAS BEEN ESTABLISHED FOR THEM.  THEY OPERATE
SALMON TRAPS UNDER PERMITS ISSUED BY THE ARMY CORPS OF ENGINEERS AND
THE UNITED STATES FOREST SERVICE AND REGULATIONS ISSUED BY THE
SECRETARY OF THE INTERIOR.  THEY SUED TO ENJOIN THREATENED ENFORCEMENT
AGAINST THEM OF A STATUTE OF THE STATE OF ALASKA FORBIDDING THE USE OF
SALMON TRAPS.  THEIR SUIT WAS DISMISSED, AND THE STATE SUPREME COURT
AFFIRMED.  HELD: 

1.  THE PERMITS ISSUED BY THE CORPS OF ENGINEERS AND THE FOREST
SERVICE DO NOT EXEMPT THESE SALMON TRAPS FROM STATE LAW.  PP. 63-64. 

2.  CONGRESS HAS NEITHER AUTHORIZED THE USE CONTRARY TO STATE LAW OF
THE SALMON TRAPS HERE INVOLVED NOR EMPOWERED THE SECRETARY OF THE
INTERIOR TO DO SO, AND THE JUDGMENT IS AFFIRMED.  PP. 62-76. 

3.  HOWEVER, IN VIEW OF ALL THE CIRCUMSTANCES AND IN ORDER TO AVOID
HARDSHIP, THE STAY HERETOFORE GRANTED WILL REMAIN IN FORCE UNTIL THE
END OF THE 1962 SALMON-FISHING SEASON.  P. 76. 

ORGANIZED VILLAGE OF KAKE ET AL. V. EGAN, GOVERNOR OF ALASKA. 

APPEAL FROM THE SUPREME COURT OF ALASKA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 2, METLAKATLA INDIAN COMMUNITY V.
EGAN, ANTE, P. 45, BUT CALLS FOR SEPARATE TREATMENT.  APPELLANTS SEEK
THE REVERSAL OF A DECISION OF THE SUPREME COURT OF ALASKA, - ALASKA - ,
362 P.2D 901, AFFIRMING THE DISMISSAL OF THEIR PETITIONS FOR
INJUNCTIONS AGAINST INTERFERENCE WITH THEIR OPERATION OF FISH TRAPS IN
SOUTHEASTERN ALASKA. 

THE ORGANIZED VILLAGE OF KAKE AND THE ANGOON COMMUNITY ASSOCIATION
ARE CORPORATIONS CHARTERED UNDER THE WHEELER-HOWARD ACT OF 1934, 48
STAT. 984, 988, AS AMENDED, 49 STAT. 1250 (1936), 25 U.S.C. SECS. 473A,
476, 477.  KAKE IS LOCATED ON KUPREANOF ISLAND, 100 MILES SOUTH OF
JUNEAU.  ANGOON IS LOCATED ON ADMIRALTY ISLAND, 60 MILES SOUTH OF
JUNEAU.  THEY ARE OCCUPIED BY THLINGET OR TLINGET INDIANS, NATIVE TO
ALASKA. 

BOTH COMMUNITIES ARE ENTIRELY DEPENDENT UPON SALMON FISHING.  IN
PURSUANCE OF A POLICY TO CREATE A SOUND FISHING ECONOMY FOR THE TWO
GROUPS, THE UNITED STATES PURCHASED CANNERIES AND RELATED PROPERTIES
FOR ANGOON IN 1948 AND FOR KAKE IN 1950.  SINCE THESE DATES APPELLANTS
HAVE OPERATED FISH TRAPS AT SPECIFIED LOCATIONS IN NEARBY WATERS, UNDER
PERMITS GRANTED BY THE ARMY ENGINEERS TO ERECT TRAPS IN NAVIGABLE
WATERS AND BY THE UNITED STATES FOREST SERVICE TO ANCHOR THEM IN THE
TONGASS NATIONAL FOREST.  IN MARCH 1959 THE SECRETARY OF THE INTERIOR,
BY REGULATIONS ISSUED UNDER AUTHORITY OF THE WHITE ACT, 43 STAT. 464,
AS AMENDED, 48 U.S.C.  SECS. 221-228, AND THE ALASKA STATEHOOD ACT, 72
STAT. 339, PERMITTED ANGOON TO OPERATE THREE FISH TRAPS DURING THE 1959
SEASON AND KAKE FOUR.  24 FED. REG. 2053, 2069.  THE FOLLOWING YEAR THE
SECRETARY AUTHORIZED PERMANENT OPERATION OF THESE TRAPSITES AND
SPECIFIED ONE ADDITIONAL SITE FOR ANGOON AND FIVE MORE FOR KAKE FOR
POSSIBLE FUTURE AUTHORIZATION.  25 CFR (1961 SUPP.) PT. 88. 

THE HISTORY OF THIS LITIGATION IS RECITED IN METLAKATLA INDIAN
COMMUNITY V. EGAN, SUPRA.  IT IS SUFFICIENT TO NOTE HERE THAT ALASKA IN
1959 THREATENED TO ENFORCE AGAINST KAKE AND ANGOON HER ANTI-FISH-TRAP
CONSERVATION LAW, ALASKA LAWS 1959, C. 17, AS AMENDED BY ID., C. 95;
THAT THE STATE SEIZED ONE FISH TRAP AT KAKE, ARRESTED THE PRESIDENT OF
THE KAKE VILLAGE COUNCIL AND THE FOREMAN OF THE CREW ATTEMPTING TO MOOR
THE TRAP, AND FILED INFORMATIONS AGAINST THEM; THAT SUIT WAS FILED BY
BOTH KAKE AND ANGOON IN THE INTERIM UNITED STATES DISTRICT COURT FOR
ALASKA TO ENJOIN THIS INTERFERENCE WITH THEIR CLAIMED FISHING RIGHTS;
AND THAT THE DISMISSAL OF BOTH COMPLAINTS WAS AFFIRMED BY THE SUPREME
COURT OF ALASKA. 

THE SITUATION HERE DIFFERS FROM THAT OF THE METLAKATLANS IN THAT
NEITHER KAKE NOR ANGOON HAS BEEN PROVIDED WITH A RESERVATION AND IN
THAT THERE IS NO STATUTORY AUTHORITY UNDER WHICH THE SECRETARY OF THE
INTERIOR MIGHT PERMIT EITHER TO OPERATE FISH TRAPS CONTRARY TO STATE
LAW.  APPELLANTS DO NOT RELY HEAVILY ON THE SECRETARY'S REGULATIONS. 
NEITHER THE WHITE ACT NOR THE STATEHOOD ACT, CITED BY THE SECRETARY,
SUPPORTS A GRANT OF IMMUNITY FROM STATE LAW.  THE WHITE ACT WAS A
CONSERVATION AND ANTI-MONOPOLY MEASURE.  IT AUTHORIZED THE SECRETARY TO
LIMIT FISHING TIMES, PLACES, AND EQUIPMENT IN ORDER TO CONSERVE FISH
BUT FORBADE HIM IN SO DOING TO CREATE EXCLUSIVE RIGHTS, EVEN IN
INDIANS.  HYNES V. GRIMES PACKING CO., 337 U.S. 86, 122-123.  BECAUSE
THE RIGHTS CLAIMED ARE EXCLUSIVE IN THE KAKES AND ANGOONS, THEY CANNOT
HAVE BEEN CREATED PURSUANT TO THE WHITE ACT, EVEN THOUGH THAT STATUTE
NOW APPLIES, IF AT ALL, ONLY TO INDIANS.  MOREOVER, THE WHITE ACT GIVES
THE SECRETARY POWER ONLY TO LIMIT FISHING, NOT TO GRANT RIGHTS.  THE
STATEHOOD ACT RETAINED "ABSOLUTE JURISDICTION AND CONTROL" OF INDIAN
"PROPERTY (INCLUDING FISHING RIGHTS)" IN THE UNITED STATES, BUT IT DID
NOT GIVE POWERS OF THE NATURE CLAIMED TO THE SECRETARY OF THE
INTERIOR.  NO OTHER SOURCE OF AUTHORITY APPEARS AVAILABLE.  THE
PROVISIONS NOW FOUND IN 25 U.S.C. SECS. 2 AND 9, REFERRING TO THE
PRESIDENT'S POWER TO PRESCRIBE REGULATIONS FOR EFFECTUATING STATUTES
"RELATING TO INDIAN AFFAIRS," TO SETTLE ACCOUNTS OF "INDIAN AFFAIRS,"
AND CONCERNING "THE MANAGEMENT OF ALL INDIAN AFFAIRS AND OF ALL MATTERS
ARISING OUT OF INDIAN RELATIONS," DERIVE FROM STATUTES OF 1832 AND
1834, 4 STAT. 564 AND 4 STAT. 735, 738.  IN KEEPING WITH THE POLICY OF
ALMOST TOTAL TRIBAL SELF-GOVERNMENT PREVAILING WHEN THESE STATUTES WERE
PASSED, SEE PP. 71-72, INFRA, THE INTERIOR DEPARTMENT ITSELF IS OF THE
OPINION THAT THE SOLE AUTHORITY CONFERRED BY THE FIRST OF THESE IS THAT
TO IMPLEMENT SPECIFIC LAWS, AND BY THE SECOND THAT OVER RELATIONS
BETWEEN THE UNITED STATES AND THE INDIANS - NOT A GENERAL POWER TO MAKE
RULES GOVERNING INDIAN CONDUCT.  UNITED STATES DEPARTMENT OF THE
INTERIOR, FEDERAL INDIAN LAW (1958), PP. 54-55; COHEN, HANDBOOK OF
FEDERAL INDIAN LAW (1945), P. 102.  WE AGREE THAT THEY DO NOT SUPPORT
THE FISH-TRAP REGULATIONS. 

BOTH COMMUNITIES OPERATE THEIR TRAPS UNDER PERMITS GRANTED BY THE
ARMY CORPS OF ENGINEERS AND BY THE UNITED STATES FOREST SERVICE.  BUT
NEITHER OF THESE PERMITS GRANTS A RIGHT TO BE FREE OF STATE REGULATION
OR PROHIBITION.  LIKE A CERTIFICATION BY THE INTERSTATE COMMERCE
COMMISSION, EACH IS SIMPLY ACKNOWLEDGMENT THAT THE ACTIVITY DOES NOT
VIOLATE FEDERAL LAW, AND NOT AN EXEMPTION FROM STATE LICENSING OR
POLICE POWER REQUIREMENTS.  CF. MAURER V. HAMILTON, 309 U.S. 598; SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177.  THE ENGINEERS
HAVE NO OBJECTION UNDER THE RIVERS AND HARBORS ACT, 30 STAT. 1121,
1151, 33 U.S.C. SEC. 403, TO THE OBSTRUCTION OF NAVIGABLE STREAMS
INCIDENT TO THE OPERATION OF FISH TRAPS AT KAKE AND ANGOON; THE FOREST
SERVICE HAS NO OBJECTION TO THE USE OF NATIONAL FOREST LAND TO ANCHOR
THEM.  NEITHER ATTEMPTED TO EXEMPT THESE TRAPS FROM STATE LAW. 

AS IN THE COMPANION CASE, CERTAIN GROUNDS RELIED ON BY THE ALASKA
COURT ARE NO LONGER URGED BY THE STATE.  THE PRINCIPAL DISPUTE NOW
CONCERNS THE MEANING OF SEC. 4 OF THE STATEHOOD ACT, IN WHICH THE STATE
DISCLAIMED ALL RIGHT AND TITLE TO AND THE UNITED STATES RETAINED
"ABSOLUTE JURISDICTION AND CONTROL" OVER, INTER ALIA, "ANY LANDS OR
OTHER PROPERTY (INCLUDING FISHING RIGHTS), THE RIGHT OR TITLE TO WHICH
MAY BE HELD BY ANY INDIANS, ESKIMOS, OR ALEUTS (HEREINAFTER CALLED
NATIVES) OR IS HELD BY THE UNITED STATES IN TRUST FOR SAID NATIVES." 

THE UNITED STATES IN ITS BRIEF AMICUS CURIAE CONTENDED THAT THE
RESERVATION OF ABSOLUTE JURISDICTION OVER INDIAN "PROPERTY (INCLUDING
FISHING RIGHTS)" OUSTED THE STATE FROM ANY REGULATION OF FISHING BY
INDIANS IN ALASKA.  APPELLANTS URGE THAT CONGRESS INTENDED TO PROTECT
THE INDIANS IN THEIR FREEDOM TO CONTINUE FISHING AS THEY HAD DONE
BEFORE STATEHOOD, SO THAT ALASKA CANNOT INTERFERE WITH THE INDIAN
FISHING ACTUALLY PRACTICED AT THAT TIME.  THEY ARGUE IN ADDITION THAT
IN USING FISH TRAPS THEY WERE EXERCISING AN ABORIGINAL RIGHT TO FISH
THAT WAS PROTECTED BY SEC. 4.  THE COURT BELOW CONCLUDED THAT
ABORIGINAL RIGHTS OF ALASKAN NATIVES HAVE BEEN EXTINGUISHED, THAT
APPELLANTS HAVE NO RIGHTS NOT ENJOYED IN COMMON WITH ALL OTHER
ALASKANS, AND THAT SEC. 4 PROTECTS ONLY EXCLUSIVE RIGHTS GIVEN INDIANS
BY FEDERAL LAW. 

THE UNITED STATES WISELY ABANDONED ITS POSITION THAT ALASKA HAS
DISCLAIMED THE POWER TO LEGISLATE WITH RESPECT TO ANY FISHING
ACTIVITIES OF INDIANS IN THE STATE.  LEGISLATIVE HISTORY REVEALS NO
SUCH INTENTION IN CONGRESS, WHICH WAS CONCERNED WITH THE PROTECTION OF
CERTAIN INDIAN CLAIMS IN EXISTENCE AT THE TIME OF STATEHOOD.  SEE,
E.G., HEARINGS BEFORE HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS
ON H.R. 2535 AND RELATED BILLS, 84TH CONG., 1ST SESS. 124-131, 266-267,
381-383 (1955).  BUT WE CANNOT ACCEPT ALASKA'S CONTENTION THAT INDIAN
"PROPERTY (INCLUDING FISHING RIGHTS)" REFERS ONLY TO PROPERTY OWNED BY
OR HELD FOR INDIANS UNDER PROVISIONS OF FEDERAL LAW.  SECTION 4 MUST BE
CONSTRUED IN LIGHT OF THE CIRCUMSTANCES OF ITS FORMULATION AND
ENACTMENT.  SEE ALASKA PACIFIC FISHERIES V. UNITED STATES, 248 U.S. 78,
87.  CONGRESS WAS AWARE THAT FEW SUCH RIGHTS EXISTED IN ALASKA.  ITS
CONCERN WAS TO PRESERVE THE STATUS QUO WITH RESPECT TO ABORIGINAL AND
POSSESSORY INDIAN CLAIMS, SO THAT STATEHOOD WOULD NEITHER EXTINGUISH
THEM NOR RECOGNIZE THEM AS COMPENSABLE.  SEE, E.G., HOUSE HEARINGS,
SUPRA, 130, 384 (1955)(DELEGATE BARTLETT); HEARINGS BEFORE SENATE
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS ON S. 50, 83D CONG., 2D SESS.
227 (SENATOR JACKSON), 260-261 (1954).  (FN1) 

DISCUSSION DURING HEARINGS ON THE 1955 HOUSE BILL AFFORDS FURTHER
EVIDENCE THAT CLAIMS NOT BASED ON FEDERAL LAW ARE INCLUDED.  SECTION
205 OF THAT BILL (LIKE SEC. 6 OF THE BILL AS ENACTED) AUTHORIZED ALASKA
TO SELECT LARGE TRACTS OF UNITED STATES LAND FOR TRANSFER TO STATE
OWNERSHIP.  IT WAS UNDERSTOOD THAT THE DISCLAIMER PROVISION LEFT THE
STATE FREE TO CHOOSE INDIAN "PROPERTY" IF IT DESIRED, BUT THAT SUCH A
TAKING WOULD LEAVE UNIMPAIRED THE INDIANS' RIGHT TO SUE THE UNITED
STATES FOR ANY COMPENSATION THAT MIGHT LATER BE ESTABLISHED TO BE DUE. 
SEE HOUSE HEARINGS, SUPRA, 135 (1955)(DELEGATE BARTLETT).  FEELING THAT
EXPERIENCE HAD SHOWN THIS PROCEDURE TOO SLOW TO GIVE PROMPT RELIEF TO
THE INDIANS, OKLAHOMA'S REPRESENTATIVE EDMONDSON PROPOSED TO EXEMPT
INDIAN PROPERTY FROM THE STATE'S SELECTION.  ID., AT 381.  THIS WAS
REJECTED AS VIRTUALLY DESTROYING ALASKA'S RIGHT TO SELECT LANDS.  FOR,
ALTHOUGH REPRESENTATIVE EDMONDSON POINTED OUT THAT THE DISCLAIMER
EXTENDED ONLY TO PROPERTY OWNED BY INDIANS OR HELD IN TRUST FOR THEM,
FOUR REPRESENTATIVES CLEARLY STATED THEIR BELIEF THAT THE DISCLAIMER
INCLUDED NOT JUST THE FEW ALASKA RESERVATIONS BUT ALSO THE ABORIGINAL
OR OTHER UNPROVED CLAIMS IN DISPUTE, WHICH COVERED MOST IF NOT ALL OF
ALASKA.  ID., AT 383 (REPRESENTATIVES ENGLE, DAWSON, METCALF,
WESTLAND). 

"FISHING RIGHTS" FIRST APPEARED IN A SENATE BILL REPORTED IN 1951, S.
REP. NO. 315, 82D CONG., 1ST SESS. 2.  EARLIER BILLS HAD MENTIONED ONLY
LAND.  THE FISHING-RIGHTS PROVISION IS UNIQUE TO ALASKA, ALTHOUGH THE
DISCLAIMER IS IN OTHER RESPECTS THE SAME AS IN EARLIER STATUTES.  SEE
PP. 67-68, INFRA.   IT WAS INCLUDED BECAUSE FISHING RIGHTS ARE OF VITAL
IMPORTANCE TO INDIANS IN ALASKA.  HOUSE HEARINGS, SUPRA, 125
(1955)(DELEGATE BARTLETT).  THE EXISTENCE OF ABORIGINAL FISHING RIGHTS
WAS AFFIRMED BY THE INTERIOR DEPARTMENT'S SOLICITOR IN 1942, 57 I.D.
461.  THERE WAS ALMOST NO DISCUSSION OF "FISHING RIGHTS" IN CONGRESS. 
IN EARLIER HEARINGS THE SENATE COMMITTEE WAS CONSIDERING A SUGGESTION
BY SENATOR CORDON THAT ALL INDIAN PROPERTY BE GRANTED TO THE STATE,
RESERVING THE RIGHT TO SEEK FEDERAL COMPENSATION, EXCEPT FOR PROPERTY
ACTUALLY OCCUPIED BY INDIANS.  ASKED TO DESCRIBE INDIAN POSSESSORY
RIGHTS, GOVERNOR HEINTZLEMAN PORTRAYED A SMOKEHOUSE BESIDE A STREAM, 50
MILES FROM THE TOWN WHERE THEY LIVE, VISITED FOR FISHING PURPOSES
PERHAPS TWO WEEKS EACH YEAR.  SENATE HEARINGS, SUPRA, 137 (1954). 

ON A SIMILAR BASIS THE KAKES AND THE ANGOONS HAVE FISHED AT THE
DISPUTED LOCATIONS SINCE 1948 AND 1950.  IT APPEARS TO BE ALASKAN
CUSTOM THAT, ALTHOUGH TRAPS ARE TAKEN FROM THE WATER AND REPLACED EACH
YEAR, ONE DOES NOT "JUMP" A TRAP-SITE.  THE PRIOR CLAIM OF THE FIRST
TRAPPER IS RESPECTED.  SEE UNITED STATES V. LIBBY, MCNEIL & LIBBY, 14
ALASKA 37, 42, 107 F.SUPP.  697, 700 (D. ALASKA 1952); GRUENING, THE
STATE OF ALASKA (1954), P. 171; 57 I.D.  461, 462 (1942).  THE
STATEHOOD ACT BY NO MEANS MAKES ANY CLAIM OF APPELLANTS TO FISHING
RIGHTS COMPENSABLE AGAINST THE UNITED STATES; NEITHER DOES IT
EXTINGUISH SUCH CLAIMS.  THE DISCLAIMER WAS INTENDED TO PRESERVE
UNIMPAIRED THE RIGHT OF ANY INDIAN CLAIMANT TO ASSERT HIS CLAIM,
WHETHER BASED ON FEDERAL LAW, ABORIGINAL RIGHT OR SIMPLY OCCUPANCY,
AGAINST THE GOVERNMENT.  APPELLANTS' CLAIMS ARE "PROPERTY (INCLUDING
FISHING RIGHTS)" WITHIN SEC. 4. 

BECAUSE SEC. 4 OF THE STATEHOOD ACT PROVIDES THAT INDIAN "PROPERTY
(INCLUDING FISHING RIGHTS)" SHALL NOT ONLY BE DISCLAIMED BY THE STATE
AS A PROPRIETARY MATTER BUT ALSO "SHALL BE AND REMAIN UNDER THE
ABSOLUTE JURISDICTION AND CONTROL OF THE UNITED STATES," THE PARTIES
HAVE PROCEEDED ON THE ASSUMPTION THAT IF KAKE AND ANGOON ARE FOUND TO
POSSESS "FISHING RIGHTS" WITHIN THE MEANING OF THIS SECTION THE STATE
CANNOT APPLY HER LAW.  CONSEQUENTLY ARGUMENT HAS CENTERED UPON WHETHER
APPELLANTS HAVE ANY SUCH "RIGHTS." 

THE ASSUMPTION IS ERRONEOUS.  ALTHOUGH THE REFERENCE TO FISHING
RIGHTS IS UNIQUE, THE RETENTION OF "ABSOLUTE" FEDERAL JURISDICTION OVER
INDIAN LANDS ADOPTS THE FORMULA OF NINE PRIOR STATEHOOD ACTS.  INDIAN
LANDS IN ARIZONA REMAINED "UNDER THE ABSOLUTE JURISDICTION AND CONTROL"
OF THE UNITED STATES, 36 STAT. 557, 569; YET IN WILLIAMS V. LEE, 358
U.S. 217, 220, 223, WE DECLARED THAT THE TEST OF WHETHER A STATE LAW
COULD BE APPLIED ON INDIAN RESERVATIONS THERE WAS WHETHER THE
APPLICATION OF THAT LAW WOULD INTERFERE WITH RESERVATION SELF
GOVERNMENT.  THE IDENTICAL LANGUAGE APPEARS IN MONTANA'S ADMISSION ACT,
25 STAT. 676, 677, YET IN DRAPER V. UNITED STATES, 164 U.S. 240, THE
COURT HELD THAT A NON-INDIAN WHO WAS ACCUSED OF MURDERING ANOTHER NON
INDIAN ON A MONTANA RESERVATION COULD BE PROSECUTED ONLY IN THE STATE
COURTS.  THE MONTANA STATUTE APPLIES ALSO TO NORTH DAKOTA, SOUTH
DAKOTA, AND WASHINGTON.  IDENTICAL PROVISIONS ARE FOUND IN THE ACTS
ADMITTING NEW MEXICO (36 STAT. 557, 558-559) AND UTAH (28 STAT. 107,
108), AND IN THE CONSTITUTIONS OF IDAHO (1890, ART. 21, SEC. 19) AND
WYOMING (1890, ART. 21, SEC. 26), WHICH WERE RATIFIED BY CONGRESS (26
STAT. 215 (IDAHO); 26 STAT. 222 (WYOMING)).    DRAPER AND WILLIAMS
INDICATE THAT "ABSOLUTE" FEDERAL JURISDICTION IS NOT INVARIABLY
EXCLUSIVE JURISDICTION.  THE MOMENTUM OF SUBSTANTIALLY IDENTICAL PAST
ADMISSION LEGISLATION TOUCHING INDIANS CARRIES THE SETTLED MEANING
GOVERNING THE JURISDICTION OF STATES OVER INDIAN PROPERTY TO THE ALASKA
STATEHOOD ACT IN LIGHT OF ITS LEGISLATIVE HISTORY. 

INDIAN PROPERTY.  THE STATE MUST DISCLAIM RIGHT AND TITLE TO SUCH
PROPERTY; THE UNITED STATES RETAINS "ABSOLUTE JURISDICTION AND CONTROL"
OVER IT; THE STATE MAY NOT TAX IT.  ON THE URGING OF THE INTERIOR
DEPARTMENT THAT ALASKA BE DEALT WITH AS HAD OTHER STATES, THESE
PROVISIONS REPLACED AN EARLIER SECTION GRANTING TO THE STATE ALL LANDS
NOT ACTUALLY POSSESSED AND USED BY THE UNITED STATES.  HEARINGS BEFORE
A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON PUBLIC LANDS ON H.R. 206 AND
H.R. 1808, 80TH CONG., 1ST SESS. 2, 12, 14 (1947).  THE FIRST AND THIRD
PROVISIONS HAVE NOTHING TO DO WITH THIS CASE; THE SECOND DOES NOT
EXCLUDE STATE CONSERVATION LAWS FROM APPELLANTS' FISH TRAPS. 

THE DISCLAIMER OF RIGHT AND TITLE BY THE STATE WAS A DISCLAIMER OF
PROPRIETARY RATHER THAN GOVERNMENTAL INTEREST.  IT WAS DETERMINED,
AFTER SOME DEBATE, TO BE THE BEST WAY OF ENSURING THAT STATEHOOD WOULD
NEITHER EXTINGUISH NOR ESTABLISH CLAIMS BY INDIANS AGAINST THE UNITED
STATES.  IF LANDS SUBJECT TO THE CLAIM OF INDIAN RIGHTS WERE
TRANSFERRED TO THE STATE, THE INDIANS WERE NOT THEREBY TO LOSE THE
RIGHT TO MAKE CLAIMS AGAINST THE UNITED STATES FOR DAMAGES.  SEE SENATE
HEARINGS, SUPRA, 286 (1954). 

THE PROVISION FOR "ABSOLUTE JURISDICTION AND CONTROL" RECEIVED LITTLE
ATTENTION IN CONGRESS.  IN THE 1954 SENATE HEARINGS THE COMMITTEE WAS
CONSIDERING A PROVISION COPIED FROM THE OKLAHOMA STATUTE THAT INDIAN
LANDS SHOULD REMAIN "SUBJECT TO THE JURISDICTION, DISPOSAL, AND CONTROL
OF THE UNITED STATES."  MR. BARNEY, ON BEHALF OF THE JUSTICE
DEPARTMENT, URGED THE INCLUSION OF SUCH A PROVISION IN ORDER TO AVOID
THE POSSIBILITY THAT, UNDER UNITED STATES V. MCBRATNEY, 104 U.S. 621,
FEDERAL CRIMINAL JURISDICTION OVER INDIAN RESERVATIONS MIGHT BE
EXTINGUISHED BY STATEHOOD.  SENATORS BARRETT AND JACKSON THEREUPON
EXPRESSED THE CLEAR DESIRE THAT FEDERAL JURISDICTION NOT BE MADE
EXCLUSIVE OVER ALL DISCLAIMED AREAS.  MR. BARNEY DENIED THAT THE
PROVISION WOULD DEPRIVE THE STATE OF "POLITICAL JURISDICTION" OVER
DISCLAIMED PROPERTIES.  SENATOR CORDON DECLARED: 

"THE STATE MAY WELL WAIVE ITS CLAIM TO ANY RIGHT OR TITLE TO THE
LANDS AND STILL HAVE ALL OF ITS POLITICAL OR POLICE POWER WITH RESPECT
TO THE ACTIONS OF PEOPLE ON THOSE LANDS, AS LONG AS THAT DOES NOT
AFFECT THE TITLE TO THE LAND." 

SENATOR JACKSON SAID:  "ALL THAT YOU ARE DOING HERE IS A DISCLAIMER
OF PROPRIETARY INTEREST," AND MR. BARNEY AGREED.  SENATOR CORDON SAID: 

"THE ACT OF ADMISSION GIVES TO THE STATE OF ALASKA POLITICAL
JURISDICTION, INCLUDING ALL THAT IS MEANT BY THE TERM 'POLICE POWER,'
WITHIN ITS BOUNDARIES UNLESS THERE BE EXPRESS OR DEFINITELY IMPLIED,
WHICH IS THE SAME THING, A RESERVATION OF EXCLUSIVE JURISDICTION IN THE
UNITED STATES." 

SENATORS BARRETT AND JACKSON AND MR. BARNEY AGREED.  MR. SLAUGHTER OF
THE INTERIOR DEPARTMENT POINTED OUT THAT A LATER SECTION OF THE BILL,
NOW SEC. 11, PROVIDED FOR "EXCLUSIVE" FEDERAL JURISDICTION OVER MT.
MCKINLEY NATIONAL PARK.  MR. BARNEY, IN ANSWER TO A DIRECT QUESTION,
STATED THAT "JURISDICTION" IN THE OKLAHOMA STATUTE AND IN HIS PROPOSAL
FOR INDIAN PROPERTY DID NOT MEAN EXCLUSIVE JURISDICTION.  SENATE
HEARINGS, SUPRA, 283-287 (1954).  THE BILL AS REPORTED CONTAINED NO
PROVISION ON JURISDICTION BUT ONLY A DISCLAIMER OF RIGHT AND TITLE, A
RESERVATION OF FEDERAL POWER TO EXTINGUISH INDIAN CLAIMS AS IF THERE
HAD BEEN NO STATEHOOD ACT, AND AN EXEMPTION FROM STATE TAXATION.  ID.,
AT 331.  PROVISIONS RETAINING FEDERAL "JURISDICTION" AND "ABSOLUTE
JURISDICTION" WERE CONSIDERED INTERCHANGEABLE BY AT LEAST ONE
COMMITTEE, WHICH REPORTED THE DISCLAIMER IN AN ALASKA BILL AS "ALMOST
IDENTICAL" WITH THOSE IN THE PRECEDING 13 ADMISSION ACTS.  S. REP. NO.
315, 82D CONG., 1ST SESS. 15 (1951). 

MOST STATEHOOD BILLS CONTAINED THE MORE COMMON PHRASING "ABSOLUTE
JURISDICTION AND CONTROL" RATHER THAN THE OKLAHOMA PHRASE.  ALTHOUGH
THIS WAS THE USUAL LANGUAGE EMPLOYED TO RETAIN FEDERAL POWER IN
STATEHOOD ACTS, THE SENATE COMMITTEE IN 1958 OUT OF AN ABUNDANCE OF
CAUTION DELETED THE WORD "JURISDICTION" IN ORDER THAT NO ONE MIGHT
CONSTRUE THE STATUTE AS ABOLISHING STATE POWER ENTIRELY.  THE COMMITTEE
DECLARED THAT IT WAS NOT ITS INTENTION BY THE RETENTION OF FEDERAL
CONTROL TO MAKE THE ALASKA SITUATION ANY DIFFERENT FROM THAT PREVAILING
IN OTHER STATES AS TO STATE JURISDICTION OVER INDIAN LANDS.  S. REP.
NO. 1163, 85TH CONG., 1ST SESS.  15 (1957).  THE HOUSE BILL, WHICH
RETAINED THE USUAL LANGUAGE, WAS PASSED FIRST, 104 CONG.  REC. 9756,
AND THE SENATE MADE NO AMENDMENTS TO THE HOUSE BILL BECAUSE IT FEARED
THAT STATEHOOD MIGHT BE LOST ONCE AGAIN IF THE HOUSE HAD TO ACT ON A
CONFERENCE REPORT.  104 CONG. REC.  12009-12010.  SENATOR JACKSON
STATED THAT "THE DIFFERENCES ARE OF WORDING AND LANGUAGE RATHER THAN
POLICY  ...  DESIGNED TO DEFINE MORE CLEARLY SOME OF THE JURISDICTIONAL
PROBLEMS INVOLVED  ...  .  THE OBJECTIVE OF BOTH BILLS IS IDENTICAL. 
THERE IS STRONG EVIDENCE THAT THE END PRODUCT OF BOTH BILLS WOULD BE
IDENTICAL."  THE SENATE AMENDMENT WAS DESIGNED SIMPLY TO MAKE CLEAR
WHAT AN EXAMINATION OF PAST STATUTES AND DECISIONS MAKES CLEAR ALSO:
THAT THE WORDS "ABSOLUTE JURISDICTION AND CONTROL" ARE NOT INTENDED TO
OUST THE STATE COMPLETELY FROM REGULATION OF INDIAN "PROPERTY
(INCLUDING FISHING RIGHTS)."  "ABSOLUTE" IN SEC. 4 CARRIED THE GLOSS OF
ITS PREDECESSOR STATUTES, MEANING UNDIMINISHED, NOT EXCLUSIVE.  CF.
BOSTON SAND & GRAVEL CO. V. UNITED STATES, 278 U.S. 41, 47-48.  THE
POWER OF ALASKA OVER INDIANS, EXCEPT AS GRANTED BY CONGRESS IN 1958, 72
STAT. 545, IS THE SAME AS THAT OF MANY OTHER STATES. 

THE RELATION BETWEEN THE INDIANS AND THE STATES HAS BY NO MEANS
REMAINED CONSTANT SINCE THE DAYS OF JOHN MARSHALL.  IN THE EARLY YEARS,
AS THE WHITE MAN PRESSED AGAINST INDIANS IN THE EASTERN PART OF THE
CONTINENT, IT WAS THE POLICY OF THE UNITED STATES TO ISOLATE THE TRIBES
ON TERRITORIES OF THEIR OWN BEYOND THE MISSISSIPPI, WHERE THEY WERE
QUITE FREE TO GOVERN THEMSELVES.  THE 1828 TREATY WITH THE CHEROKEE
NATION, 7 STAT. 311, GUARANTEED THE INDIANS THEIR LANDS WOULD NEVER BE
SUBJECTED TO THE JURISDICTION OF ANY STATE OR TERRITORY.  EVEN THE
FEDERAL GOVERNMENT ITSELF ASSERTED ITS POWER OVER THESE RESERVATIONS
ONLY TO PUNISH CRIMES COMMITTED BY OR AGAINST NON-INDIANS.  1 STAT.
469, 470; 2 STAT. 139.  SEE 18 U.S.C.  SEC. 1152. 

AS THE UNITED STATES SPREAD WESTWARD, IT BECAME EVIDENT THAT THERE
WAS NO PLACE WHERE THE INDIANS COULD BE FOREVER ISOLATED.  IN
RECOGNITION OF THIS FACT THE UNITED STATES BEGAN TO CONSIDER THE
INDIANS LESS AS FOREIGN NATIONS AND MORE AS A PART OF OUR COUNTRY.  IN
1871 THE POWER TO MAKE TREATIES WITH INDIAN TRIBES WAS ABOLISHED, 16
STAT. 544, 566, 25 U.S.C.  SEC. 71.  IN 1887 CONGRESS PASSED THE
GENERAL ALLOTMENT ACT, 24 STAT. 388, AS AMENDED, 25 U.S.C. SECS. 331
358, AUTHORIZING THE DIVISION OF RESERVATION LAND AMONG INDIVIDUAL
INDIANS WITH A VIEW TOWARD THEIR EVENTUAL ASSIMILATION INTO OUR
SOCIETY.  IN 1885, DEPARTING FROM THE DECISION IN EX PARTE CROW DOG,
109 U.S. 556, CONGRESS INTRUDED UPON RESERVATION SELF-GOVERNMENT TO
EXTEND FEDERAL CRIMINAL LAW OVER SEVERAL SPECIFIED CRIMES COMMITTED BY
ONE INDIAN AGAINST ANOTHER ON INDIAN LAND, 23 STAT. 362, 385, AS
AMENDED, 18 U.S.C. SEC. 1153; UNITED STATES V. KAGAMA, 118 U.S. 375. 
OTHER OFFENSES REMAINED MATTERS FOR THE TRIBE, UNITED STATES V. QUIVER,
241 U.S. 602. 

THE GENERAL NOTION DRAWN FROM CHIEF JUSTICE MARSHALL'S OPINION IN
WORCESTER V. GEORGIA, 6 PET. 515, 561; THE KANSAS INDIANS, 5 WALL. 
737, 755-757; AND THE NEW YORK INDIANS, 5 WALL.  761, THAT AN INDIAN
RESERVATION IS A DISTINCT NATION WITHIN WHOSE BOUNDARIES STATE LAW
CANNOT PENETRATE, HAS YIELDED TO CLOSER ANALYSIS WHEN CONFRONTED, IN
THE COURSE OF SUBSEQUENT DEVELOPMENTS, WITH DIVERSE CONCRETE
SITUATIONS.  BY 1880 THE COURT NO LONGER VIEWED RESERVATIONS AS
DISTINCT NATIONS.  ON THE CONTRARY, IT WAS SAID THAT A RESERVATION WAS
IN MANY CASES A PART OF THE SURROUNDING STATE OR TERRITORY, AND SUBJECT
TO ITS JURISDICTION EXCEPT AS FORBIDDEN BY FEDERAL LAW, UTAH & NORTHERN
R. CO. V. FISHER, 116 U.S. 28, 31.  IN LANGFORD V. MONTEITH, 102 U.S.
145, THE COURT HELD THAT PROCESS MIGHT BE SERVED WITHIN A RESERVATION
FOR A SUIT IN TERRITORIAL COURT BETWEEN TWO NON-INDIANS.  IN UNITED
STATES V. MCBRATNEY, 104 U.S. 621, AND DRAPER V. UNITED STATES, 164
U.S. 240, THE COURT HELD THAT MURDER OF ONE NON-INDIAN BY ANOTHER ON A
RESERVATION WAS A MATTER FOR STATE LAW.  (FN2) 

THE POLICY OF ASSIMILATION WAS REVERSED ABRUPTLY IN 1934.  A GREAT
MANY ALLOTTEES OF RESERVATION LANDS HAD SOLD THEM AND DISPOSED OF THE
PROCEEDS.  FURTHER ALLOTMENTS WERE PROHIBITED IN ORDER TO SAFEGUARD
REMAINING INDIAN PROPERTIES.  THE SECRETARY OF THE INTERIOR WAS
AUTHORIZED TO CREATE NEW RESERVATIONS AND TO ADD LANDS TO EXISTING
ONES.  TRIBES WERE PERMITTED TO BECOME CHARTERED FEDERAL CORPORATIONS
WITH POWERS TO MANAGE THEIR AFFAIRS, AND TO ORGANIZE AND ADOPT
CONSTITUTIONS FOR THEIR OWN SELF-GOVERNMENT.  48 STAT. 984, 986, 987,
988.  THESE PROVISIONS WERE SOON EXTENDED TO ALASKA, 49 STAT. 1250. 

CONCURRENTLY THE INFLUENCE OF STATE LAW INCREASED RATHER THAN
DECREASED.  AS THE RESULT OF A REPORT MAKING UNFAVORABLE COMPARISONS
BETWEEN INDIAN SERVICE ACTIVITIES AND THOSE OF THE STATES, CONGRESS IN
1929 AUTHORIZED THE STATES TO ENFORCE SANITATION AND QUARANTINE LAWS ON
INDIAN RESERVATIONS, TO MAKE INSPECTIONS FOR HEALTH AND EDUCATIONAL
PURPOSES, AND TO ENFORCE COMPULSORY SCHOOL ATTENDANCE.  45 STAT. 1185,
AS AMENDED, 25 U.S.C. SEC. 231.  SEE MERIAM, PROBLEM OF INDIAN
ADMINISTRATION (1928); H.R. REP. NO. 2135, 70TH CONG., 2D SESS. (1929);
COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1945), P. 83; UNITED STATES
DEPARTMENT OF THE INTERIOR, FEDERAL INDIAN LAW (1958), PP. 126-127.  IN
1934 CONGRESS AUTHORIZED THE SECRETARY OF THE INTERIOR TO ENTER INTO
CONTRACTS WITH STATES FOR THE EXTENSION OF EDUCATIONAL, MEDICAL,
AGRICULTURAL, AND WELFARE ASSISTANCE TO RESERVATIONS, 48 STAT. 596, 25
U.S.C. SEC. 452.  DURING THE 1940'S SEVERAL STATES WERE PERMITTED TO
ASSERT CRIMINAL JURISDICTION, AND SOMETIMES CIVIL JURISDICTION AS WELL,
OVER CERTAIN INDIAN RESERVATIONS.  E.G., 62 STAT. 1161; 62 STAT.  1224;
64 STAT. 845; 63 STAT. 705.  A NEW SHIFT IN POLICY TOWARD TERMINATION
OF FEDERAL RESPONSIBILITY AND ASSIMILATION OF RESERVATION INDIANS
RESULTED IN THE ABOLITION OF SEVERAL RESERVATIONS DURING THE 1950'S.
E.G., 68 STAT. 250 (MENOMINEES); 68 STAT. 718 (KLAMATHS). 

IN 1953 CONGRESS GRANTED TO SEVERAL STATES FULL CIVIL AND CRIMINAL
JURISDICTION OVER INDIAN RESERVATIONS, CONSENTING TO THE ASSUMPTION OF
SUCH JURISDICTION BY ANY ADDITIONAL STATES MAKING ADEQUATE PROVISION
FOR THIS IN THE FUTURE.  67 STAT. 588, 18 U.S.C. SEC. 1162, 28 U.S.C.
SEC. 1360.  ALASKA WAS ADDED TO THE LIST OF SUCH STATES IN 1958, 72
STAT. 545.  THIS STATUTE DISCLAIMS THE INTENTION TO PERMIT STATES TO
INTERFERE WITH FEDERALLY GRANTED FISHING PRIVILEGES OR USES OF
PROPERTY.  FINALLY, THE SALE OF LIQUOR ON RESERVATIONS HAS BEEN
PERMITTED SUBJECT TO STATE LAW, ON CONSENT OF THE TRIBE ITSELF.  67
STAT. 586, 18 U.S.C.  SEC. 1161.  THUS CONGRESS HAS TO A SUBSTANTIAL
DEGREE OPENED THE DOORS OF RESERVATIONS TO STATE LAWS, IN MARKED
CONTRAST TO WHAT PREVAILED IN THE TIME OF CHIEF JUSTICE MARSHALL. 

DECISIONS OF THIS COURT ARE FEW AS TO THE POWER OF THE STATES WHEN
NOT GRANTED CONGRESSIONAL AUTHORITY TO REGULATE MATTERS AFFECTING
INDIANS.  IN THOMAS V. GAY, 169 U.S. 264, AN OKLAHOMA TERRITORIAL TAX
ON THE CATTLE OF NON-INDIAN LESSEES OF RESERVATION LAND WAS UPHELD ON
THE AUTHORITY OF THE FISHER AND MARICOPA DECISIONS, SUPRA, WHICH
PERMITTED TAXATION OF RAILROAD RIGHTS-OF-WAY.  THE COURT CONCEDED THAT
BECAUSE THE LANDS ON WHICH THE TAXED CATTLE GRAZED WERE LEASED FROM
INDIANS THE TAX MIGHT, IN CONTRAST TO THE RAILROAD CASES, HAVE AN
INDIRECT EFFECT ON INDIANS, BUT THAT EFFECT WAS DECLARED TO BE TOO
REMOTE TO REQUIRE A CONTRARY RESULT.  IN THE LATEST DECISION, WILLIAMS
V. LEE, 358 U.S. 217, WE HELD THAT ARIZONA HAD NO JURISDICTION OVER A
CIVIL ACTION BROUGHT BY A NON-INDIAN AGAINST AN INDIAN FOR THE PRICE OF
GOODS SOLD THE LATTER ON THE NAVAJO RESERVATION.  THE APPLICABILITY OF
STATE LAW, WE THERE SAID, DEPENDS UPON "WHETHER THE STATE ACTION
INFRINGED ON THE RIGHT OF RESERVATION INDIANS TO MAKE THEIR OWN LAWS
AND BE RULED BY THEM," 358 U.S., AT 220.  ANOTHER RECENT STATEMENT OF
THE GOVERNING PRINCIPLE WAS MADE IN A DECISION REAFFIRMING THE
AUTHORITY OF A STATE TO PUNISH CRIMES COMMITTED BY NON-INDIANS AGAINST
NON-INDIANS ON RESERVATIONS:  "IN THE ABSENCE OF A LIMITING TREATY
OBLIGATION OR CONGRESSIONAL ENACTMENT EACH STATE HAD A RIGHT TO
EXERCISE JURISDICTION OVER INDIAN RESERVATIONS WITHIN ITS BOUNDARIES,"
NEW YORK EX REL. RAY V. MARTIN, 326 U.S. 496, 499. 

THESE DECISIONS INDICATE THAT EVEN ON RESERVATIONS STATE LAWS MAY BE
APPLIED TO INDIANS UNLESS SUCH APPLICATION WOULD INTERFERE WITH
RESERVATION SELF-GOVERNMENT OR IMPAIR A RIGHT GRANTED OR RESERVED BY
FEDERAL LAW.  CONGRESS HAS GONE EVEN FURTHER WITH RESPECT TO ALASKA
RESERVATIONS, 72 STAT. 545, 18 U.S.C. SEC. 1162, 28 U.S.C. SEC. 1360. 
STATE AUTHORITY OVER INDIANS IS YET MORE EXTENSIVE OVER ACTIVITIES,
SUCH AS IN THIS CASE, NOT ON ANY RESERVATION.  IT HAS NEVER BEEN
DOUBTED THAT STATES MAY PUNISH CRIMES COMMITTED BY INDIANS, EVEN
RESERVATION INDIANS, OUTSIDE OF INDIAN COUNTRY.  SEE COHEN, INDIAN
RIGHTS AND THE FEDERAL COURTS, 24 MINN.  L. REV. 145, 153 (1940),
CITING PABLO V. PEOPLE, 23 COLO. 134, 46 P. 636.  EVEN WHERE RESERVED
BY FEDERAL TREATIES, OFF-RESERVATION HUNTING AND FISHING RIGHTS HAVE
BEEN HELD SUBJECT TO STATE REGULATION, WARD V. RACE HORSE, 163 U.S.
504; TULEE V. WASHINGTON, 315 U.S. 681, IN CONTRAST TO HOLDINGS BY
STATE AND FEDERAL COURTS THAT WASHINGTON COULD NOT APPLY THE LAWS
ENFORCED IN TULEE TO FISHING WITHIN A RESERVATION, PIONEER PACKING CO.
V. WINSLOW, 159 WASH.  655, 294 P. 557; MOORE V. UNITED STATES, 157
F.2D 760, 765 (C.A. 9TH CIR.).  SEE STATE V. COONEY, 77 MINN. 518, 80
N.W. 696. 

TRUE, IN TULEE THE RIGHT CONFERRED WAS TO FISH IN COMMON WITH OTHERS,
WHILE APPELLANTS HERE CLAIM EXCLUSIVE RIGHTS.  BUT STATE REGULATION OF
OFF-RESERVATION FISHING CERTAINLY DOES NOT IMPINGE ON TREATY-PROTECTED
RESERVATION SELF-GOVERNMENT, THE FACTOR FOUND DECISIVE IN WILLIAMS V.
LEE.  NOR HAVE APPELLANTS ANY FISHING RIGHTS DERIVED FROM FEDERAL
LAWS.  THIS COURT HAS NEVER HELD THAT STATES LACK POWER TO REGULATE THE
EXERCISE OF ABORIGINAL INDIAN RIGHTS, SUCH AS CLAIMED HERE, OR OF THOSE
BASED ON OCCUPANCY.  BECAUSE OF THE MIGRATORY HABITS OF SALMON, FISH
TRAPS AT KAKE AND ANGOON ARE NO MERELY LOCAL MATTER. 

CONGRESS HAS NEITHER AUTHORIZED THE USE OF FISH TRAPS AT KAKE AND
ANGOON NOR EMPOWERED THE SECRETARY OF THE INTERIOR TO DO SO.  THE
JUDGMENT OF THE SUPREME COURT OF ALASKA IS AFFIRMED.  HOWEVER, IN VIEW
OF ALL THE CIRCUMSTANCES AND IN ORDER TO AVOID HARDSHIP, THE STAY
GRANTED BY MR. JUSTICE BRENNAN, AND CONTINUED BY THE COURT, WILL REMAIN
IN FORCE UNTIL THE END OF THE 1962 SALMON FISHING SEASON, AS DEFINED IN
THE REGULATIONS ISSUED BY THE SECRETARY OF THE INTERIOR.  IT IS SO
ORDERED. 

FN1  IN 1948 A STATEHOOD BILL REQUIRING DISCLAIMER OF "ALL LANDS  ...
OWNED OR HELD BY ANY  ... NATIVES, THE RIGHT OR TITLE TO WHICH SHALL
HAVE BEEN ACQUIRED THROUGH OR FROM THE UNITED STATES OR ANY PRIOR
SOVEREIGNTY," WAS FAVORABLY REPORTED WITH THIS EXPLANATION: 

"AS PROPOSED TO BE AMENDED, THIS PARAGRAPH WOULD PRESERVE ALL
EXISTING VALID NATIVE PROPERTY RIGHTS IN ALASKA, INCLUDING THOSE
DERIVED FROM USE OR OCCUPANCY, TOGETHER WITH ALL EXISTING AUTHORITY OF
THE CONGRESS TO PROVIDE FOR THE DETERMINATION, PERFECTION OR
RELINQUISHMENT OF NATIVE PROPERTY RIGHTS IN ALASKA.  IT WOULD NEITHER
ADD TO NOR SUBTRACT FROM SUCH RIGHTS AND SUCH AUTHORITY, BUT WOULD
SIMPLY MAINTAIN THE STATUS QUO."  H.R. REP. NO. 1731, 80TH CONG., 2D
SESS. 15 (1948). 

TO THE SAME EFFECT, SEE H.R. REP. NO. 255, 81ST CONG., 1ST SESS. 13
(1949). 

FN2  FISHER PERMITTED A TERRITORIAL TAX ON A RAILWAY THROUGH INDIAN
COUNTRY, AND ONE BASIS FOR THE HOLDING WAS THAT HERE DISCUSSED.  THE
ALTERNATIVE GROUND WAS THAT THE RAILWAY RIGHT-OF-WAY HAD BEEN WITHDRAWN
FROM THE RESERVATION, AS WAS HELD IN MARICOPA & PHOENIX R. CO. V.
ARIZONA TERRITORY, 156 U.S. 347. 

MR. JUSTICE DOUGLAS, WHILE JOINING THE OPINION OF THE COURT, DISSENTS
FROM AN EXTENSION OF THE STAY FOR REASONS TO BE STATED IN AN OPINION. 

MR. JUSTICE DOUGLAS.* 

*THIS OPINION WAS FILED MARCH 19, 1962. 

WHEN THE DECISION IN THIS CASE WAS ANNOUNCED ON MARCH 5, 1962, I
NOTED THAT WHILE I JOINED THE OPINION OF THE COURT, I DISSENTED FROM
THE CONTINUATION OF THE STAY AND WOULD ELABORATE MY VIEWS AT A LATER
TIME.  AS THE DECISION TO EXTEND THE STAY WAS REACHED IN CONFERENCE ON
MARCH 2, 1962, THERE WAS INSUFFICIENT TIME TO PREPARE AN OPINION BY THE
FOLLOWING MONDAY. 

THE STAY WAS FIRST GRANTED BY MR. JUSTICE BRENNAN, 80 SUP. CT. 33, TO
MAINTAIN THE STATUS QUO WHILE THIS LITIGATION WAS PENDING.  THE STAY
WAS THEN PLAINLY JUSTIFIED, AS THE QUESTIONS PRESENTED WERE SUBSTANTIAL
ONES.  NOW, HOWEVER, THE ADJUDICATION HAS BEEN MADE; AND THE COURT IS
UNANIMOUS IN CONCLUDING THAT THESE INDIANS HAVE NO RIGHT TO USE FISH
TRAPS.  A STAY IS NOT NEEDED TO PROTECT RIGHTS THAT MAY ARISE FROM
FUTURE REGULATIONS, AS IN THE METLAKATLA CASE, FOR ANY ADMINISTRATIVE
POWER OF THE SECRETARY OF THE INTERIOR TO ALLOW THE KAKE AND ANGOON
INDIANS TO USE TRAPS IS LACKING.   AND WITH ALL DEFERENCE, A STAY IS
NOT SHOWN TO BE JUSTIFIED ON ANY OTHER GROUNDS. 

A STAY THAT CONTINUES IN USE FOR ANOTHER SEASON A DEVICE AS NEFARIOUS
AS THE FISH TRAP NEEDS POTENT REASONS. 

THE DESTRUCTION CAUSED BY FISH TRAPS IS NOTORIOUS.  MR. JUSTICE VAN
DEVANTER, CONSERVATIONIST AS WELL AS JURIST, DESCRIBED AN ALASKAN FISH
TRAP (FN1) DESIGNED "TO CATCH ABOUT 600,000 SALMON IN A SINGLE SEASON,"
A TRAP WHICH "WILL TEND MATERIALLY TO REDUCE THE NATURAL SUPPLY OF FISH
ACCESSIBLE TO THE INDIANS."  ALASKA PACIFIC FISHERIES V. UNITED STATES,
248 U.S. 78, 87.  DR. DAVID STARR JORDAN IN HIS 1904 REPORT OF THE
ALASKA SALMON COMMISSION STATED, "IF WE CONSIDER THE ULTIMATE INTERESTS
OF ALASKA AND THE PERMANENCE OF HER SALMON FISHERIES, NO TRAPS SHOULD
BE ALLOWED ANYWHERE ...  ."  GRUENING, THE STATE OF ALASKA (1954), P.
169.  BEGINNING IN 1931 THE TERRITORIAL LEGISLATURE MEMORIALIZED
CONGRESS CONDEMNING THE USE OF THE FISH TRAP BECAUSE OF ITS ADVERSE
EFFECT ON SALMON AND ON THE SALMON INDUSTRY.  SEE ALASKA, SESS. LAWS,
1931, P. 275; ALASKA, SESS. LAWS, 1953, PP. 401-402; ALASKA, SESS.
LAWS, 1955, PP. 447-448.  THE 1955 RESOLUTION ENDED BY SAYING: 

"WHEREAS, THE VAST MAJORITY OF ALASKANS, AFTER MANY DECADES OF FIRST
HAND EXPERIENCE AND STUDY, ARE CONVINCED THAT NO SALMON CONSERVATION
PROGRAM CAN ACHIEVE LASTING EFFECT UNLESS SALMON FISH TRAPS ARE
ABOLISHED IMMEDIATELY, FOREVER, FROM ALASKAN WATERS; 

"NOW THEREFORE, YOUR MEMORIALIST, THE LEGISLATURE OF THE TERRITORY OF
ALASKA, RESPECTFULLY URGES AND REQUESTS THAT IMMEDIATE LEGISLATION BE
ENACTED ABOLISHING FISH TRAPS FROM THE WATERS OF THE TERRITORY OF
ALASKA." 

IN 1959, THE ALASKAN NATIVE BROTHERHOOD, ORGANIZED TO SPEAK FOR THE
INDIANS, (FN2) REITERATED ITS STAND "FOR COMPLETE ABOLITION OF TRAPS." 

SENATOR GRUENING, ON MARCH 6, 1962, ISSUED A STATEMENT TO THE
ASSOCIATED PRESS WHICH EMPHASIZED ANOTHER INVIDIOUS EFFECT OF THE USE
OF FISH TRAPS BY THE INDIANS: 

"THE 1945 ALASKA TERRITORIAL LEGISLATURE, AT MY BEHEST, WHILE I WAS
GOVERNOR, PASSED AN ACT OUTLAWING DISCRIMINATION IN PUBLIC
ESTABLISHMENTS BASED ON RACE, CREED, OR COLOR.  THIS WAS DESIGNED TO
SAFEGUARD ALASKA'S NATIVE PEOPLE WHO HAD BEEN SUBJECT TO SUCH
DISCRIMINATION AND IT DID SO SAFEGUARD THEM.  SECRETARY SEATON'S ACTION
WOULD HAVE CREATED AN INVERSE DISCRIMINATION AGAINST WHITES DEEPLY
SOWING SEEDS OF BITTERNESS AND AROUSING INTERRACIAL FRICTION AND
ANTAGONISM WHICH HAS NO PLACE IN AMERICA AND HAD DISAPPEARED IN
ALASKA.  THE PERFORMANCE WAS AN INEXCUSABLE PRESSURE PLAY.  IN A
REFERENDUM ON FISH TRAPS IN 1948, 88.7% OF THE PEOPLE OF ALASKA VOTED
FOR TRAP ABOLITION, AND ANGOON'S VOTE WAS 49 TO 9 AND KAKE'S 123 TO 6
AGAINST TRAPS.  YET SECRETARY SEATON SOUGHT TO FORCE TRAPS UPON THEM
AND ON THE PEOPLE OF ALASKA. 

"THE COURT'S DECISION IN THE METLAKATLA CASE DIFFERS IN ITS
CONCLUSION FROM THE KAKE AND ANGOON CASES ONLY BECAUSE OF METLAKATLA'S
HISTORICALLY DIFFERENT AND UNIQUE LEGAL STATUS.  IT LEAVES THE COURSE
OF ACTION OPEN TO THE PRESENT SECRETARY OF INTERIOR.  IT IS TO BE HOPED
THAT BOTH HE AND THE PEOPLE OF METLAKATLA, WHO IN THE 1948 REFERENDUM -
THOUGH OWNING SEVEN TRAPS - VOTED 112 TO 33 FOR TRAP ABOLITION, WILL
AGREE THAT PRIVILEGE AND DISCRIMINATION BASED ON RACE SHOULD FINALLY
DISAPPEAR TOTALLY FROM THE 49TH STATE." 

THE DEVASTATING EFFECT OF FISH TRAPS UPON ALASKA'S ECONOMY WAS
DESCRIBED BY THE ALASKA SUPREME COURT: 

"IT HAS NOT BEEN UNUSUAL FOR A SINGLE TRAP TO CATCH AS MANY AS
600,000 FISH IN A SINGLE SEASON.  THE IMPACT OF THE CATCH OF ELEVEN
TRAPS ON THE FISHERIES OF SOUTHEASTERN ALASKA IS CONSIDERABLE FROM THE
POINT OF VIEW OF CONSERVATION.  THE SEASON'S CATCH OF A GILL NET OR
PURSE SEINE FISHERMAN IN THE SAME AREA MIGHT RUN FROM 2,000 TO 10,000
FISH RESPECTIVELY.  THE DISCRIMINATION AGAINST ALL FISHERMEN, NATIVES
AND WHITES ALIKE, RESULTING FROM THE SECRETARY'S 1959 REGULATION,
CREATES SOCIAL PROBLEMS FOR THE STATE WHICH IT IS POWERLESS TO REMEDY
IF THE SECRETARY'S CLAIMED RIGHT IS UPHELD.  THE INTENTION TO RETAIN
SUCH A POWER OVER THE BASIC INDUSTRY OF THE STATE WAS NOT INTIMATED IN
THE WORDING OF THE ALASKA STATEHOOD ACT, MUCH LESS DESCRIBED.  SUCH A
POWER HAS NEVER BEEN RESERVED AS TO ANY OTHER STATE ADMITTED INTO THE
UNION AS FAR AS THIS COURT IS AWARE.  THE FISHERIES OF ALASKA, ALTHOUGH
PITIFULLY DEPLETED, ARE STILL ITS BASIC INDUSTRY.  THE ECONOMY OF THE
ENTIRE STATE IS AFFECTED, IN ONE DEGREE OR ANOTHER, BY THE PLENTITUDE
OF THE SALMON IN A GIVEN SEASON.  THE PRESERVATION OF THIS NATURAL
RESOURCE IS VITAL TO THE STATE AND OF GREAT IMPORTANCE TO THE NATION AS
WHOLE."  METLAKATLA INDIAN COMMUNITY V. EGAN, - ALASKA - , 362 P.2D
901, 915. 

THE FISH TRAP IS "EFFICIENT," (FN3) AN ADJECTIVE WHICH, BY
CONSERVATION STANDARDS, MEANS THAT IT IS "DESTRUCTIVE."  AS SENATOR
GRUENING HAS SAID, "ITS ECONOMIC AND SOCIAL ASPECTS HAVE BEEN UNDER
UNCEASING ATTACK BY VIRTUALLY ALL FISHERMEN, BY CANNERY MEN WHO DO NOT
OWN OR CONTROL TRAPS AND HAVE TO DEPEND ON OTHER TYPES OF GEAR FOR
THEIR SALMON, AND BY THE ALASKA PUBLIC GENERALLY."  GRUENING, THE STATE
OF ALASKA (1954), PP. 170-171. 

MOREOVER, THE FISH TRAP IS NOT A SELECTIVE DEVICE, TAKING ONLY ONE
TYPE OF FISH.  IT CATCHES EVERYTHING THAT SWIMS; AND FISH THAT ARE NOT
"IN SEASON" ARE AS IRRETRIEVABLY LOST AS ARE THOSE IN WHICH THE
FISHERMEN HAVE THE GREATEST INTEREST. 

WE SHOULD NOT ALLOW SUCH A DESTRUCTIVE DEVICE (FN4) TO BE EMPLOYED,
ABSENT A CLAIM OF LEGAL RIGHT OR A SHOWING OF IMPERATIVE NEED.  AS I
HAVE SAID, NO SUCH RIGHT EXISTS SUBSEQUENT TO OUR UNANIMOUS DECISION OF
MARCH 5, 1962.  IT IS, OF COURSE, PROVIDED IN 28 U.S.C. SEC. 2106 THAT
IN DISPOSING OF CASES HERE FOR REVIEW WE MAY NOT ONLY "AFFIRM, MODIFY,
VACATE, SET ASIDE OR REVERSE," BUT ALSO "REQUIRE SUCH FURTHER
PROCEEDINGS TO BE HAD AS MAY BE JUST UNDER THE CIRCUMSTANCES."  BUT WE
HAVE NO REASON FOR CONCLUDING THAT IT WOULD BE UNJUST TO TURN THESE
INDIANS TO FISHING WITH GILL NETS OR HAND LINES LIKE EVERYONE ELSE. 
ALL WE HAVE BEFORE US IS A MOTION MADE IN OCTOBER 1961 TO EXPEDITE A
HEARING IN THESE CASES.  IN THAT MOTION IT IS SAID: 

"THE 1962 FISHING SEASON IN ALASKA BEGINS IN JULY, 1962.  TO PREPARE
FOR THIS FISHING SEASON, APPELLANTS MUST COMMIT LARGE SUMS OF MONEY FOR
MATERIALS AND SUPPLIES, INCLUDING WIRE, NETTING, AND CANNERY
EQUIPMENT.  A LARGE PORTION OF THESE MATERIALS MUST BE ORDERED NOT
LATER THAN JANUARY, 1962.   IF APPELLANTS' RIGHT TO FISH WITH TRAPS
WERE NOT TO BE UPHELD, THEIR INVESTMENT WOULD BE WASTED.  CONVERSELY,
IF APPELLANTS' RIGHT TO FISH WITH TRAPS IS UPHELD, APPELLANTS WILL BE
UNABLE TO FISH UNLESS SUBSTANTIAL SUMS OF MONEY ARE COMMITTED EARLY IN
1962." 

WHETHER ANY SUMS HAVE IN FACT BEEN COMMITTED TO THE CONSTRUCTION OF
THESE NEFARIOUS FISH TRAPS WE DO NOT KNOW.  WHY THESE INDIANS CANNOT
FISH IN THE MANNER OF ALL OTHER FISHERMEN IS NOT APPARENT.  SINCE THE
FISHING SEASON STARTS IN JULY, THEY HAVE FOUR MONTHS FROM THE DATE OF
OUR DECISION TO PREPARE FOR IT.  WHAT PROBLEMS, IF ANY, THEY MAY HAVE
IN FISHING WITHOUT TRAPS, WE DO NOT KNOW.  THEY HAVE ASKED FOR NO STAY
AT THIS JUNCTURE OF THE LITIGATION.  WE ACT GRATUITOUSLY AND WITHOUT
ANY KNOWLEDGE OF THE ACTUAL FACTS.  WE IN EFFECT DISPENSE TO THIS GROUP
WHO HAVE NO LEGAL RIGHTS A LARGESSE, AS IF WE SAT AS A COMMISSION ON
INDIAN AFFAIRS, GIVING A PART OF THE PUBLIC DOMAIN TO THIS FAVORED
FEW. 

THOSE WHO KNOW THE STORY OF THE DECLINE OF THE SALMON (FN5) CAN ONLY
LOOK WITH CONCERN ON ANY ACTION THAT FURTHER DEPLETES THE SUPPLY OF
THIS CHOICE NATIONAL ASSET.  SEVERE HUMAN HARDSHIP MAY RESULT FROM THE
DECISION WE HANDED DOWN ON MARCH 5, 1962.  BUT IF THAT IS TRUE, WE
SHOULD REQUIRE THAT IT BE SHOWN.  THE DISPOSITION OF THESE CASES FOUR
MONTHS BEFORE THE 1962 FISHING SEASON STARTS GIVES AMPLE NOTICE THAT
NEW WAYS OF EARNING A LIVELIHOOD MUST BE FOUND OTHER THAN THE LAZY
MAN'S DEVICE OF THE FISH TRAP.  (FN6) 

FN1  THE SALMON TRAP IS DESCRIBED BY THE ALASKA SUPREME COURT AS
FOLLOWS: 

"A TRAP CONSISTS OF TALL STAKES OR MECHANICALLY DRIVEN PILING
EXTENDING FROM THE SHORE TO VARYING DISTANCES SEAWARD, DEPENDING ON THE
DEPTH OF THE WATER.  WIRE OR WEBBING IS STRETCHED ACROSS THE STAKES OR
PILING FROM THE SHORE TO THE SEAWARD END AND FROM THE OCEAN BOTTOM
UPWARD TO A POINT ABOVE HIGH WATER.  LOCATED AT THE SEAWARD END IS AN
EXTENDED WING OR HOOK AND AN OPENING INTO THE HEART AND POT.  WHEN THE
WEBBING IS ON THE OCEAN BOTTOM FISH CANNOT PASS AROUND THE TRAP AT THE
SHOREWARD END.  ONE TENDENCY OF MIGRATING FISH IS TO PARALLEL THE
SHORELINE AND TRAVEL WITH THE INCOMING TIDE.   FISH STOPPED BY THE
WEBBING OF A TRAP WILL EVENTUALLY FOLLOW IT SEAWARD IN AN ATTEMPT TO BY
PASS THE OBSTRUCTION.  THE WING OR HOOK IS CONSTRUCTED SO AS TO
DISCOURAGE BY-PASSING AND DIVERT THE FISH INTO THE HEART AND POT WHERE
THEY REMAIN.  WITH SOME VARIATIONS IN CONSTRUCTION, FLOATING TRAPS
ADAPTED TO DEEP WATER ARE COMMONLY USED AND ARE HIGHLY PRODUCTIVE." 
METLAKATLA INDIAN COMMUNITY V. EGAN, - ALASKA - , 362 P.2D 901, 903. 

FN2  SEE FEDERAL INDIAN LAW (DEPT. OF INTERIOR, 1958), P. 963. 

FN3  THOSE WHO DEFEND THE FISH TRAP RATE IT AS BEING A DEGREE BETTER
THAN THE PURSE SEINE.  THIS IS BECAUSE THE PURSE SEINE IS MOVABLE AND
"DIFFICULT TO KEEP TRACK OF BY THE INSPECTORS," WHILE THE FISH TRAP IS
STATIONARY AND CAN BE READILY INSPECTED.  SEE HEARINGS BEFORE
SUBCOMMITTEE, SENATE COMMITTEE ON FISHERIES, ON S. 5856, 62D CONG., 2D
SESS., PP. 458-459.    FN4  THOSE WHO DEFEND THE FISH TRAP ARE QUICK TO
ADD "PROVIDED THE TRAP HAS NO JIGGER."  HEARINGS, SUPRA, NOTE 3, AT
458.  SENATOR GRUENING DESCRIBES THE "JIGGER": 

"THE 'JIGGER' IS A LATERAL EXTENSION OF THE TRAP, CURVED OR HOOKED,
EXTENDING AWAY FROM THE WALL OF THE OUTER 'HEART' INTO THE DIRECTION
FROM WHICH THE SALMON COME.  IT MAKES AVOIDANCE OF THE TRAP TOWARD
WHICH AT THAT POINT THE SALMON ARE HEADING ALMOST IMPOSSIBLE." 
GRUENING, THE STATE OF ALASKA (1954), P. 170. 

IT IS SIGNIFICANT THAT THE REGULATIONS UNDER WHICH THESE INDIANS ARE
NOW ALLOWED TO FISH DURING THE 1962 SEASON DO NOT BAR THE "JIGGER" (SEE
25 CFR SEC. 88.3), THOUGH THE TERRITORIAL LEGISLATURE AS EARLY AS 1913
HAD BANNED IT.  SEE GRUENING, OP. CIT., SUPRA, AT 169. 

FN5  JAMES WICKERSHAM, DELEGATE IN CONGRESS FROM ALASKA, TESTIFIED IN
1914 AS TO THE START OF THE DEPLETION OF THE SALMON: 

"I WANT TO CALL THE ATTENTION OF THE COMMITTEE TO ONE STREAM WHICH
HAS BEEN DEPLETED IN CALIFORNIA, AND THAT IS THE SACRAMENTO RIVER.  THE
SACRAMENTO RIVER WAS ONE OF THE FIRST RIVERS UPON WHICH CANNERS PUT UP
SALMON.  IN 1864 THE FIRST CANNED SALMON WERE PACKED IN CALIFORNIA ON
THE SACRAMENTO RIVER.  IN 1882 THERE WERE 200,000 CASES OF CANNED
SALMON PUT OUT FROM THE SACRAMENTO RIVER - 48 POUNDS TO THE CASE,
MAKING A TOTAL OF 4,800 TONS OF SALMON CANNED DURING THAT YEAR ON THE
SACRAMENTO RIVER. 

"THEN IT BEGAN TO DECREASE, AND IT WENT DOWN TO 123,000; THEN TO
90,000; THEN TO 57,000; THEN TO 31,000; THEN TO 14,000; AND FINALLY IN
1906 THERE WERE NONE PUT UP ON THAT RIVER.  FOR THREE OR FOUR YEARS
THERE WERE NONE PUT UP, BUT IN 1913 THERE WERE 950 CASES PUT UP ON THE
SACRAMENTO RIVER.  IN SHORT, THAT GREAT SALMON STREAM HAS BEEN UTTERLY
DESTROYED AND THERE ARE NO FISH THERE NOW, SUBSTANTIALLY. 

"OF COURSE, THAT SITUATION RESULTED FROM SEVERAL CAUSES.  IT RESULTED
FROM OVERFISHING, AND FROM PUTTING BARRIERS ACROSS THE STREAMS TO CATCH
THE FISH, AND IT RESULTED IN PART FROM MINING.  ALL THESE THINGS ARE
GOING TO HAPPEN IN ALASKA.  THERE IS MINING GOING ON THERE NOW ON MANY
OF THESE STREAMS.  ALL THE OBSTACLES THAT OPERATED TO BRING ABOUT THAT
EVIL IN THE SACRAMENTO RIVER WILL OPERATE IN ALASKA AS SOON AS THEY
OPEN UP THAT COUNTRY.  AS SOON AS THAT IS DONE AND THEY GET TO WORK IN
THERE, THE STREAMS THERE ARE GOING TO BE DEPLETED. 

"WHEN THE FIRST RUSSIANS WENT TO KADIAK ISLAND, MORE THAN A CENTURY
AGO, THEY FOUND THE KARLUK SALMON STREAM SURROUNDED BY INDIANS.  IT WAS
A GREAT FISHING SPOT.  THAT STREAM HAS PROBABLY TURNED OUT MORE CANNED
SALMON THAN ANY OTHER STREAM IN ALASKA.  DR. EVERMANN AND ALL THOSE WHO
WERE ACQUAINTED WITH IT SAY IT WAS THE GREATEST SALMON STREAM IN THE
WORLD.  I SAW THE FISHING GOING ON THERE IN 1903.  I KNOW HOW IT WAS
DONE.  THEY HAD AT ONE SIDE A GREAT POST SET IN THE GROUND SUFFICIENT
TO HOLD THE NETS.  THE NETS WERE PUT INTO BIG BOATS, AND THEY WERE LONG
NETS, SOME OF THEM HALF A MILE LONG, I SUPPOSE, AND THEY WERE CARRIED
OUT INTO THE BAY, AND AS THEY CAME AROUND THEY WERE FASTENED TO A ROPE
ON THE SHORE, TO WHICH WAS ATTACHED A BIG ENGINE, AND WHEN THEY GOT
THAT FAR ALONG THE BIG ENGINE PULLED THE NETS FOR THEM.  THE NUMBER OF
FISH WHICH THEY CAUGHT IN THERE IS SIMPLY UNBELIEVABLE, AND THEY WERE
PULLED IN BY MACHINERY.  THE MEN THEMSELVES WERE UNABLE TO HANDLE BIG
NETS OF THAT KIND.  THEY WERE ABLE TO HANDLE THE SMALL NETS, BUT WHEN
THEY GOT MACHINERY HANDLING THE FISH FOR THEM THEY SOON DESTROYED THAT
STREAM.  EVERY FISHERMAN IN THAT REGION KNOWS IT IS DESTROYED; KNOWS
THAT THE GREATEST SALMON STREAM IN ALASKA HAS BEEN DESTROYED." 
HEARINGS BEFORE HOUSE COMMITTEE ON THE TERRITORIES ON H.R. 11740, 63D
CONG., 2D SESS., PP. 45-46.  FOR LATER DISCUSSIONS ON THE PLIGHT OF THE
SALMON OF THE PACIFIC, SEE HEARINGS BEFORE MERCHANT MARINE AND
FISHERIES SUBCOMMITTEE, SENATE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, ON S. CON.  RES. 35, PT. I, AND ON S. 502, 86TH CONG., 1ST
SESS.; HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON S. CON.  RES.  35, S. 2586 AND S. 1420, PT. II, 86TH CONG.,
1ST SESS. 

THE DEPLETION OF SALMON FROM CALIFORNIA TO ALASKA IS NOTORIOUS.  SEE
DUFRESNE, TROUBLED RIVER, FIELD AND STREAM, JULY 1959, P. 27; NETBOY,
SALMON OF THE PACIFIC NORTHWEST (1958); 1958, A YEAR OF SURPRISE IN
PACIFIC SALMON CANNING, PACIFIC FISHERMAN, JAN. 25, 1959, P. 81; ID.,
JAN. 25, 1960, P. 53; ID., JAN. 25, 1961, PP. 13, 23; VAN FLEET, THE
VANISHING SALMON, ATLANTIC, MAY 1961, PP. 48, 51:

"IN MY ESTIMATION, THE FORMER GREAT WEALTH OF THE SALMON FISHERY IN
CALIFORNIA IS DOOMED.  IN OREGON, THE MAIN RUNS ARE BADLY CRIPPLED BUT
NOT ENTIRELY GONE.  IN WASHINGTON, THE RUNS ARE DIMINISHED ALONG THE
COAST AND IN THE WATERS AROUND PUGET SOUND, BUT CAREFUL HUSBANDRY COULD
EVEN BRING ABOUT AN INCREASE.  MY ADVICE TO ALASKA IS TO HEED THE
LESSON SO WELL PORTRAYED IN THE STATES TO THE SOUTH OF IT." 

THE HEARINGS ON S. 502, SUPRA, ARE REPLETE WITH EXAMPLES OF THE
IMPACT ON PEOPLE AND ON THE ALASKA ECONOMY OF THE SALMON DEPLETION. 
THIS DEPLETION ALSO HAS A SERIOUS IMPACT ON WILDLIFE.  FOR AN ACCOUNT
OF WHAT A SCARCITY OF SALMON MEANS TO THE BROWN BEAR POPULATION, SEE
THE HEARINGS ON S. 502, SUPRA, AT 25-26. 

FN6  "A TRAP FISHES IN THE NIGHT WHEN THE MAN SLEEPS; IT EMPLOYS LESS
MEN THAN OTHER KINDS OF GEAR; IT IS A LABOR-SAVING DEVICE  ... ." 
HEARINGS ON S. 5856, SUPRA, NOTE 3, AT 389. 
..END :




















GRIGGS V. ALLEGHENY COUNTY 369 U.S. 84 


NO. 81.  ARGUED JANUARY 16, 1962 - DECIDED MARCH 5, 1962 - 402 PA. 411,
168 A.2D 123, REVERSED. 


ALLEGHENY COUNTY OWNS AND MAINTAINS THE GREATER PITTSBURGH AIRPORT AT
A SITE IT ACQUIRED TO PROVIDE AIRPORT FACILITIES UNDER THE FEDERAL
AIRPORT ACT.  IN ONE APPROACH ZONE OR PATH OF GLIDE, THE PATTERN OF
FLIGHT ESTABLISHED BY THE CIVIL AERONAUTICS ADMINISTRATOR FOR AIRCRAFT
LANDING AT AND DEPARTING FROM THE AIRPORT REQUIRES AIRCRAFT TO FLY
REGULARLY AND FREQUENTLY AT VERY LOW ALTITUDES OVER PETITIONER'S
RESIDENTIAL PROPERTY.  THE RESULTING NOISE, VIBRATIONS AND DANGER
FORCED PETITIONER AND HIS FAMILY TO MOVE FROM THEIR HOME.  HELD:  THE
COUNTY HAS TAKEN AN AIR EASEMENT OVER PETITIONER'S PROPERTY FOR WHICH
IT MUST PAY JUST COMPENSATION AS REQUIRED BY THE FOURTEENTH AMENDMENT. 
PP. 84-90. 

GRIGGS V. ALLEGHENY COUNTY. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA WHICH WE GRANTED (366 U.S. 943) BECAUSE
ITS DECISION (402 PA. 411, 168 A.2D 123) SEEMED TO BE IN CONFLICT WITH
UNITED STATES V. CAUSBY, 328 U.S. 256.  THE QUESTION IS WHETHER
RESPONDENT HAS TAKEN AN AIR EASEMENT OVER PETITIONER'S PROPERTY FOR
WHICH IT MUST PAY JUST COMPENSATION AS REQUIRED BY THE FOURTEENTH
AMENDMENT.  CHICAGO, B.&Q.R. CO. V. CHICAGO, 166 U.S. 226, 241.  THE
COURT OF COMMON PLEAS, PURSUANT TO CUSTOMARY PENNSYLVANIA PROCEDURE,
APPOINTED A BOARD OF VIEWERS TO DETERMINE WHETHER THERE HAD BEEN A
"TAKING" AND, IF SO, THE AMOUNT OF COMPENSATION DUE.  THE BOARD OF
VIEWERS MET UPON THE PROPERTY; IT HELD A HEARING, AND IN ITS REPORT
FOUND THAT THERE HAD BEEN A "TAKING" BY RESPONDENT OF AN AIR EASEMENT
OVER PETITIONER'S PROPERTY AND THAT THE COMPENSATION PAYABLE (DAMAGES
SUFFERED) WAS $12,690.  THE COURT OF COMMON PLEAS DISMISSED THE
EXCEPTIONS OF EACH PARTY TO THE BOARD'S REPORT.  ON APPEAL, THE SUPREME
COURT OF PENNSYLVANIA DECIDED, BY A DIVIDED VOTE, THAT IF THERE WERE A
"TAKING" IN THE CONSTITUTIONAL SENSE, THE RESPONDENT WAS NOT LIABLE. 

RESPONDENT OWNS AND MAINTAINS THE GREATER PITTSBURGH AIRPORT ON LAND
WHICH IT PURCHASED TO PROVIDE AIRPORT AND AIR-TRANSPORT FACILITIES. 
THE AIRPORT WAS DESIGNED FOR PUBLIC USE IN CONFORMITY WITH THE RULES
AND REGULATIONS OF THE CIVIL AERONAUTICS ADMINISTRATION WITHIN THE
SCOPE OF THE NATIONAL AIRPORT PLAN PROVIDED FOR IN 49 U.S.C. SEC. 1101
ET SEQ. BY THIS ACT THE FEDERAL ADMINISTRATOR IS AUTHORIZED AND
DIRECTED TO PREPARE AND CONTINUALLY REVISE A "NATIONAL PLAN FOR THE
DEVELOPMENT OF PUBLIC AIRPORTS."  SEC. 1102(A).  FOR THIS PURPOSE HE IS
AUTHORIZED TO MAKE GRANTS TO "SPONSORS" FOR AIRPORT DEVELOPMENT.  SECS.
1103, 1104.  PROVISION IS MADE FOR APPORTIONMENT OF GRANTS FOR THIS
PURPOSE AMONG THE STATES.  SEC. 1105.  THE APPLICATIONS FOR PROJECTS
MUST FOLLOW THE STANDARDS PRESCRIBED BY THE ADMINISTRATOR.  SEC. 1108. 

IT IS PROVIDED IN SEC. 1108(D) THAT:  "NO PROJECT SHALL BE APPROVED
BY THE ADMINISTRATOR WITH RESPECT TO ANY AIRPORT UNLESS A PUBLIC AGENCY
HOLDS GOOD TITLE, SATISFACTORY TO THE ADMINISTRATOR, TO THE LANDING
AREA OF SUCH AIRPORT OR THE SITE THEREFOR, OR GIVES ASSURANCE
SATISFACTORY TO THE ADMINISTRATOR THAT SUCH TITLE WILL BE ACQUIRED." 
THE UNITED STATES AGREES TO SHARE FROM 50% TO 75% OF THE "ALLOWABLE
PROJECT COSTS," DEPENDING, SO FAR AS MATERIAL HERE, ON THE CLASS AND
LOCATION OF THE AIRPORT.  SEC. 1109. 

ALLOWABLE COSTS PAYABLE BY THE FEDERAL GOVERNMENT INCLUDE "COSTS OF
ACQUIRING LAND OR INTERESTS THEREIN OR EASEMENTS THROUGH OR OTHER
INTERESTS IN AIR SPACE  ...  ."  SEC. 1112(A)(2). 

RESPONDENT EXECUTED THREE AGREEMENTS WITH THE ADMINISTRATOR OF CIVIL
AERONAUTICS IN WHICH IT AGREED, AMONG OTHER THINGS, TO ABIDE BY AND
ADHERE TO THE RULES AND REGULATIONS OF C.A.A.  AND TO "MAINTAIN A
MASTER PLAN OF THE AIRPORT," INCLUDING "APPROACH AREAS."  IT WAS
PROVIDED THAT THE "AIRPORT APPROACH STANDARDS TO BE FOLLOWED IN THIS
CONNECTION SHALL BE THOSE ESTABLISHED BY THE ADMINISTRATOR"; AND IT WAS
ALSO AGREED THAT RESPONDENT "WILL ACQUIRE SUCH EASEMENTS OR OTHER
INTERESTS IN LANDS AND AIR SPACE AS MAY BE NECESSARY TO PERFORM THE
COVENANTS OF THIS PARAGRAPH."  THE "MASTER PLAN" LAID OUT AND SUBMITTED
BY RESPONDENT INCLUDED THE REQUIRED "APPROACH AREAS"; AND THAT "MASTER
PLAN" WAS APPROVED.  ONE "APPROACH AREA" WAS TO THE NORTHEAST RUNWAY. 
AS DESIGNED AND APPROVED, IT PASSED OVER PETITIONER'S HOME WHICH IS
3,250 FEET FROM THE END OF THAT RUNWAY.  THE ELEVATION AT THE END OF
THAT RUNWAY IS 1,150.50 FEET ABOVE SEA LEVEL; THE DOOR SILL AT
PETITIONER'S RESIDENCE, 1,183.64 FEET; THE TOP OF PETITIONER'S CHIMNEY,
1,219.64 FEET.  THE SLOPE GRADIENT OF THE APPROACH AREA IS AS 40 IS TO
3,250 FEET OR 81 FEET, WHICH LEAVES A CLEARANCE OF 11.36 FEET BETWEEN
THE BOTTOM OF THE GLIDE ANGLE AND PETITIONER'S CHIMNEY. 

THE AIRLINES THAT USE THE AIRPORT ARE LESSEES OF RESPONDENT; AND THE
LEASES GIVE THEM, AMONG OTHER THINGS, THE RIGHT "TO LAND" AND "TAKE
OFF."  NO FLIGHTS WERE IN VIOLATION OF THE REGULATIONS OF C.A.A.; NOR
WERE ANY FLIGHTS LOWER THAN NECESSARY FOR A SAFE LANDING OR TAKE-OFF. 
THE PLANES TAKING OFF FROM THE NORTHEAST RUNWAY OBSERVED REGULAR FLIGHT
PATTERNS RANGING FROM 30 FEET TO 300 FEET OVER PETITIONER'S RESIDENCE;
AND ON LET-DOWN THEY WERE WITHIN 53 FEET TO 153 FEET. 

ON TAKE-OFF THE NOISE OF THE PLANES IS COMPARABLE "TO THE NOISE OF A
RIVETING MACHINE OR STEAM HAMMER."  ON THE LET-DOWN THE PLANES MAKE A
NOISE COMPARABLE "TO THAT OF A NOISY FACTORY."  THE BOARD OF VIEWERS
FOUND THAT "THE LOW ALTITUDE FLIGHTS OVER PLAINTIFF'S PROPERTY CAUSED
THE PLAINTIFF AND OCCUPANTS OF HIS PROPERTY TO BECOME NERVOUS AND
DISTRAUGHT, EVENTUALLY CAUSING THEIR REMOVAL THEREFROM AS UNDESIRABLE
AND UNBEARABLE FOR THEIR RESIDENTIAL USE."  JUDGE BELL, DISSENTING
BELOW, ACCURATELY SUMMARIZED THE UNCONTROVERTED FACTS AS FOLLOWS: 

"REGULAR AND ALMOST CONTINUOUS DAILY FLIGHTS, OFTEN SEVERAL MINUTES
APART, HAVE BEEN MADE BY A NUMBER OF AIRLINES DIRECTLY OVER AND VERY,
VERY CLOSE TO PLAINTIFF'S RESIDENCE.  DURING THESE FLIGHTS IT WAS OFTEN
IMPOSSIBLE FOR PEOPLE IN THE HOUSE TO CONVERSE OR TO TALK ON THE
TELEPHONE.  THE PLAINTIFF AND THE MEMBERS OF HIS HOUSEHOLD (DEPENDING
ON THE FLIGHT WHICH IN TURN SOMETIMES DEPENDED ON THE WIND) WERE
FREQUENTLY UNABLE TO SLEEP EVEN WITH EAR PLUGS AND SLEEPING PILLS; THEY
WOULD FREQUENTLY BE AWAKENED BY THE FLIGHT AND THE NOISE OF THE PLANES;
THE WINDOWS OF THEIR HOME WOULD FREQUENTLY RATTLE AND AT TIMES PLASTER
FELL DOWN FROM THE WALLS AND CEILINGS; THEIR HEALTH WAS AFFECTED AND
IMPAIRED, AND THEY SOMETIMES WERE COMPELLED TO SLEEP ELSEWHERE. 
MOREOVER, THEIR HOUSE WAS SO CLOSE TO THE RUNWAYS OR PATH OF GLIDE THAT
AS THE SPOKESMAN FOR THE MEMBERS OF THE AIRLINES PILOT ASSOCIATION
ADMITTED 'IF WE HAD ENGINE FAILURE WE WOULD HAVE NO COURSE BUT TO PLOW
INTO YOUR HOUSE.'"  402 PA. 411, 422, 168 A.2D 123, 128-129. 

WE START WITH UNITED STATES V. CAUSBY, SUPRA, WHICH HELD THAT THE
UNITED STATES BY LOW FLIGHTS OF ITS MILITARY PLANES OVER A CHICKEN FARM
MADE THE PROPERTY UNUSABLE FOR THAT PURPOSE AND THAT THEREFORE THERE
HAD BEEN A "TAKING," IN THE CONSTITUTIONAL SENSE, OF AN AIR EASEMENT
FOR WHICH COMPENSATION MUST BE MADE.  AT THE TIME OF THE CAUSBY CASE,
CONGRESS HAD PLACED THE NAVIGABLE AIRSPACE IN THE PUBLIC DOMAIN,
DEFINING IT AS "AIRSPACE ABOVE THE MINIMUM SAFE ALTITUDES OF FLIGHT
PRESCRIBED" BY THE C.A.A. 44 STAT. 574.  WE HELD THAT THE PATH OF THE
GLIDE OR FLIGHT FOR LANDING OR TAKING OFF WAS NOT THE DOWNWARD REACH OF
THE "NAVIGABLE AIRSPACE."  328 U.S., AT 264.  FOLLOWING THE DECISION IN
THE CAUSBY CASE, CONGRESS REDEFINED "NAVIGABLE AIRSPACE" TO MEAN
"AIRSPACE ABOVE THE MINIMUM ALTITUDES OF FLIGHT PRESCRIBED BY
REGULATIONS ISSUED UNDER THIS CHAPTER, AND SHALL INCLUDE AIRSPACE
NEEDED TO INSURE SAFETY IN TAKE-OFF AND LANDING OF AIRCRAFT."  72 STAT.
739, 49 U.S.C. SEC. 1301(24).  BY THE PRESENT REGULATIONS (FN1) THE
"MINIMUM SAFE ALTITUDES" WITHIN THE MEANING OF THE STATUTE ARE DEFINED,
SO FAR AS RELEVANT HERE, AS HEIGHTS OF 500 FEET OR 1,000 FEET, "EXCEPT
WHERE NECESSARY FOR TAKE-OFF OR LANDING."  BUT AS WE SAID IN THE CAUSBY
CASE, THE USE OF LAND PRESUPPOSES THE USE OF SOME OF THE AIRSPACE ABOVE
IT.  328 U.S., AT 264.  OTHERWISE NO HOME COULD BE BUILT, NO TREE
PLANTED, NO FENCE CONSTRUCTED, NO CHIMNEY ERECTED.  AN INVASION OF THE
"SUPERADJACENT AIRSPACE" WILL OFTEN "AFFECT THE USE OF THE SURFACE OF
THE LAND ITSELF."  328 U.S., AT 265. 

IT IS ARGUED THAT THOUGH THERE WAS A "TAKING," SOMEONE OTHER THAN
RESPONDENT WAS THE TAKER - THE AIRLINES OR THE C.A.A. ACTING AS AN
AUTHORIZED REPRESENTATIVE OF THE UNITED STATES.  WE THINK, HOWEVER,
THAT RESPONDENT, WHICH WAS THE PROMOTER, OWNER, AND LESSOR (FN2) OF THE
AIRPORT, WAS IN THESE CIRCUMSTANCES THE ONE WHO TOOK THE AIR EASEMENT
IN THE CONSTITUTIONAL SENSE.  RESPONDENT DECIDED, SUBJECT TO THE
APPROVAL OF THE C.A.A., WHERE THE AIRPORT WOULD BE BUILT, WHAT RUNWAYS
IT WOULD NEED, THEIR DIRECTION AND LENGTH, AND WHAT LAND AND NAVIGATION
EASEMENTS WOULD BE NEEDED.  THE FEDERAL GOVERNMENT TAKES NOTHING; IT IS
THE LOCAL AUTHORITY WHICH DECIDES TO BUILD AN AIRPORT VEL NON, AND
WHERE IT IS TO BE LOCATED.  WE SEE NO DIFFERENCE BETWEEN ITS
RESPONSIBILITY FOR THE AIR EASEMENTS NECESSARY FOR OPERATION OF THE
AIRPORT AND ITS RESPONSIBILITY FOR THE LAND ON WHICH THE RUNWAYS WERE
BUILT.  NOR DID THE CONGRESS WHEN IT DESIGNED THE LEGISLATION FOR A
NATIONAL AIRPORT PLAN.  FOR, AS WE HAVE ALREADY NOTED, CONGRESS
PROVIDED IN 49 U.S.C. SEC. 1109 FOR THE PAYMENT TO THE OWNERS OF
AIRPORTS, WHOSE PLANS WERE APPROVED BY THE ADMINISTRATOR, OF A SHARE OF
"THE ALLOWABLE PROJECT COSTS," INCLUDING THE "COSTS OF ACQUIRING LAND
OR INTERESTS THEREIN OR EASEMENTS THROUGH OR OTHER INTERESTS IN AIR
SPACE."  SEC. 1112(A)(2).  A COUNTY THAT DESIGNED AND CONSTRUCTED A
BRIDGE WOULD NOT HAVE A USABLE FACILITY UNLESS IT HAD AT LEAST AN
EASEMENT OVER THE LAND NECESSARY FOR THE APPROACHES TO THE BRIDGE.  WHY
SHOULD ONE WHO DESIGNS, CONSTRUCTS, AND USES AN AIRPORT BE IN A MORE
FAVORABLE POSITION SO FAR AS THE FOURTEENTH AMENDMENT IS CONCERNED? 
THAT THE INSTANT "TAKING" WAS "FOR PUBLIC USE" IS NOT DEBATABLE.  FOR
RESPONDENT AGREED WITH THE C.A.A. THAT IT WOULD OPERATE THE AIRPORT
"FOR THE USE AND BENEFIT OF THE PUBLIC," THAT IT WOULD OPERATE IT "ON
FAIR AND REASONABLE TERMS AND WITHOUT UNJUST DISCRIMINATION," AND THAT
IT WOULD NOT ALLOW ANY CARRIER TO ACQUIRE "ANY EXCLUSIVE RIGHT" TO ITS
USE. 

THE GLIDE PATH FOR THE NORTHEAST RUNWAY IS AS NECESSARY FOR THE
OPERATION OF THE AIRPORT AS IS A SURFACE RIGHT OF WAY FOR OPERATION OF
A BRIDGE, OR AS IS THE LAND FOR THE OPERATION OF A DAM.  SEE UNITED
STATES V. VIRGINIA ELECTRIC CO., 365 U.S. 624, 630.  AS STATED BY THE
SUPREME COURT OF WASHINGTON IN ACKERMAN V. PORT OF SEATTLE, 55 WASH. 2D
401, 413, 348 P.2D 664, 671, "  ...  AN ADEQUATE APPROACH WAY IS AS
NECESSARY A PART OF AN AIRPORT AS IS THE GROUND ON WHICH THE AIRSTRIP,
ITSELF, IS CONSTRUCTED  ...  ."  WITHOUT THE "APPROACH AREAS," AN
AIRPORT IS INDEED NOT OPERABLE.  RESPONDENT IN DESIGNING IT HAD TO
ACQUIRE SOME PRIVATE PROPERTY.  OUR CONCLUSION IS THAT BY
CONSTITUTIONAL STANDARDS IT DID NOT ACQUIRE ENOUGH.  REVERSED. 

FN1  REGULATION 60.17, ENTITLED "MINIMUM SAFE ALTITUDES," PROVIDES: 

"EXCEPT WHEN NECESSARY FOR TAKE-OFF OR LANDING, NO PERSON SHALL
OPERATE AN AIRCRAFT BELOW THE FOLLOWING ALTITUDES: 

"(A)  ANYWHERE.  AN ALTITUDE WHICH WILL PERMIT, IN THE EVENT OF THE
FAILURE OF A POWER UNIT, AN EMERGENCY LANDING WITHOUT UNDUE HAZARD TO
PERSONS OR PROPERTY ON THE SURFACE: 

"(B)  OVER CONGESTED AREAS.  OVER THE CONGESTED AREAS OF CITIES,
TOWNS OR SETTLEMENTS, OR OVER AN OPEN-AIR ASSEMBLY OF PERSONS, AN
ALTITUDE OF 1,000 FEET ABOVE THE HIGHEST OBSTACLE WITHIN A HORIZONTAL
RADIUS OF 2,000 FEET FROM THE AIRCRAFT.  ... 

"(C)  OVER OTHER THAN CONGESTED AREAS.  AN ALTITUDE OF 500 FEET ABOVE
THE SURFACE, EXCEPT OVER OPEN WATER OR SPARSELY POPULATED AREAS.  IN
SUCH EVENT, THE AIRCRAFT SHALL NOT BE OPERATED CLOSER THAN 500 FEET TO
ANY PERSON, VESSEL, VEHICLE, OR STRUCTURE  ...  ."  14 CFR SEC. 60.17. 

FN2  IN CIRCUMSTANCES MORE OPAQUE THAN THIS WE HAVE HELD LESSORS TO
THEIR CONSTITUTIONAL OBLIGATIONS.  SEE BURTON V. WILMINGTON PARKING
AUTH., 365 U.S. 715. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING. 

IN UNITED STATES V. CAUSBY, (FN1) THE COURT HELD THAT BY FLYING ITS
MILITARY AIRCRAFT FREQUENTLY ON LOW LANDING AND TAKEOFF FLIGHTS OVER
CAUSBY'S CHICKEN FARM THE UNITED STATES HAD SO DISTURBED THE PEACE OF
THE OCCUPANTS AND SO FRIGHTENED THE CHICKENS THAT IT HAD "TAKEN" A
FLIGHT EASEMENT FROM CAUSBY FOR WHICH IT WAS REQUIRED TO PAY "JUST
COMPENSATION" UNDER THE FIFTH AMENDMENT.  TODAY THE COURT HOLDS THAT
SIMILAR LOW LANDING AND TAKEOFF FLIGHTS, MAKING PETITIONER GRIGGS'
PROPERTY "UNDESIRABLE AND UNBEARABLE FOR  ...  RESIDENTIAL USE,"
CONSTITUTE A "TAKING" OF AIRSPACE OVER GRIGGS' PROPERTY - NOT, HOWEVER,
BY THE OWNER AND OPERATOR OF THE PLANES AS IN CAUSBY, BUT BY ALLEGHENY
COUNTY, THE OWNER AND OPERATOR OF THE GREATER PITTSBURGH AIRPORT TO AND
FROM WHICH THE PLANES FLY.  ALTHOUGH I DISSENTED IN CAUSBY BECAUSE I
DID NOT BELIEVE THAT THE INDIVIDUAL AIRCRAFT FLIGHTS "TOOK" PROPERTY IN
THE CONSTITUTIONAL SENSE MERELY BY GOING OVER IT AND BECAUSE I BELIEVED
THAT THE COMPLEXITIES OF ADJUSTING ATMOSPHERIC PROPERTY RIGHTS TO THE
AIR AGE COULD BEST BE HANDLED BY CONGRESS, I AGREE WITH THE COURT THAT
THE NOISE, VIBRATIONS AND FEAR CAUSED BY CONSTANT AND EXTREMELY LOW
OVER-FLIGHTS IN THIS CASE HAVE SO INTERFERED WITH THE USE AND ENJOYMENT
OF PETITIONER'S PROPERTY AS TO AMOUNT TO A "TAKING" OF IT UNDER THE
CAUSBY HOLDING.  I CANNOT AGREE, HOWEVER, THAT IT WAS THE COUNTY OF
ALLEGHENY THAT DID THE "TAKING."  I THINK THAT THE UNITED STATES, NOT
THE GREATER PITTSBURGH AIRPORT, HAS "TAKEN" THE AIRSPACE OVER GRIGGS'
PROPERTY NECESSARY FOR FLIGHT.  (FN2)  WHILE THE COUNTY DID DESIGN THE
PLAN FOR THE AIRPORT, INCLUDING THE ARRANGEMENT OF ITS TAKEOFF AND
APPROACH AREAS, IN ORDER TO COMPLY WITH FEDERAL REQUIREMENTS IT DID SO
UNDER THE SUPERVISION OF AND SUBJECT TO THE APPROVAL OF THE CIVIL
AERONAUTICS ADMINISTRATOR OF THE UNITED STATES.  (FN3)    CONGRESS HAS
OVER THE YEARS ADOPTED A COMPREHENSIVE PLAN FOR NATIONAL AND
INTERNATIONAL AIR COMMERCE, REGULATING IN MINUTE DETAIL VIRTUALLY EVERY
ASPECT OF AIR TRANSIT - FROM CONSTRUCTION AND PLANNING OF GROUND
FACILITIES TO SAFETY AND METHODS OF FLIGHT OPERATIONS.  (FN4)  AS PART
OF THIS OVERALL SCHEME OF DEVELOPMENT, CONGRESS IN 1938 DECLARED THAT
THE UNITED STATES HAS "COMPLETE AND EXCLUSIVE NATIONAL SOVEREIGNTY IN
THE AIR SPACE ABOVE THE UNITED STATES" (FN5) AND THAT EVERY CITIZEN HAS
"A PUBLIC RIGHT OF FREEDOM OF TRANSIT IN AIR COMMERCE THROUGH THE
NAVIGABLE AIR SPACE OF THE UNITED STATES."  (FN6)  ALTHOUGH IN CAUSBY
THE COURT HELD THAT UNDER THE THEN EXISTING LAWS AND REGULATIONS THE
AIRSPACE USED IN LANDING AND TAKEOFF WAS NOT PART OF THE "NAVIGABLE
AIRSPACE" AS TO WHICH ALL HAVE A RIGHT OF FREE TRANSIT, CONGRESS HAS
SINCE, IN 1958, ENACTED A NEW LAW, AS PART OF A REGULATORY SCHEME EVEN
MORE COMPREHENSIVE THAN THOSE BEFORE IT, MAKING IT CLEAR THAT THE
"AIRSPACE NEEDED TO INSURE SAFETY IN TAKE-OFF AND LANDING OF AIRCRAFT"
IS "NAVIGABLE AIRSPACE."  (FN7)  THUS CONGRESS HAS NOT ONLY
APPROPRIATED THE AIRSPACE NECESSARY FOR PLANES TO FLY AT HIGH ALTITUDES
THROUGHOUT THE COUNTRY BUT HAS ALSO PROVIDED THE LOW ALTITUDE AIRSPACE
ESSENTIAL FOR THOSE SAME PLANES TO APPROACH AND TAKE OFF FROM
AIRPORTS.  THESE AIRSPACES ARE SO MUCH UNDER THE CONTROL OF THE FEDERAL
GOVERNMENT THAT EVERY TAKEOFF FROM AND EVERY LANDING AT AIRPORTS SUCH
AS THE GREATER PITTSBURGH AIRPORT IS MADE UNDER THE DIRECT SIGNAL AND
SUPERVISORY CONTROL OF SOME FEDERAL AGENT.  (FN8) 

IN REACHING ITS CONCLUSION, HOWEVER, THE COURT EMPHASIZES THE FACT
THAT HIGHWAY BRIDGES REQUIRE APPROACHES.  OF COURSE THEY DO.  BUT IF
THE UNITED STATES HIGHWAY DEPARTMENT PURCHASES THE APPROACHES TO A
BRIDGE, THE BRIDGE OWNER NEED NOT.  THE SAME IS TRUE WHERE CONGRESS
HAS, AS HERE, APPROPRIATED THE AIRSPACE NECESSARY TO APPROACH THE
PITTSBURGH AIRPORT AS WELL AS ALL THE OTHER AIRPORTS IN THE COUNTRY. 
DESPITE THIS, HOWEVER, THE COURT SOMEHOW FINDS A CONGRESSIONAL INTENT
TO SHIFT THE BURDEN OF ACQUIRING FLIGHT AIRSPACE TO THE LOCAL
COMMUNITIES IN 49 U.S.C. SEC. 1112, WHICH AUTHORIZES REIMBURSEMENT TO
LOCAL COMMUNITIES FOR "NECESSARY" ACQUISITIONS OF "EASEMENTS THROUGH OR
OTHER INTERESTS IN AIR SPACE."  BUT THIS IS NO DIFFERENT FROM THE
BRIDGE-APPROACH ARGUMENT.  MERELY BECAUSE LOCAL COMMUNITIES MIGHT
EVENTUALLY BE REIMBURSED FOR THE ACQUISITION OF NECESSARY EASEMENTS
DOES NOT MEAN THAT LOCAL COMMUNITIES MUST ACQUIRE EASEMENTS THAT THE
UNITED STATES HAS ALREADY ACQUIRED.  AND WHERE CONGRESS HAS ALREADY
DECLARED AIRSPACE FREE TO ALL - A FACT NOT DENIED BY THE COURT - PRETTY
CLEARLY IT NEED NOT AGAIN BE ACQUIRED BY AN AIRPORT.  THE "NECESSARY"
EASEMENTS FOR WHICH CONGRESS AUTHORIZED REIMBURSEMENT IN SEC. 1112 WERE
THOSE "EASEMENTS THROUGH OR OTHER INTERESTS IN AIR SPACE" NECESSARY FOR
THE CLEARING AND PROTECTING OF "AERIAL APPROACHES" FROM PHYSICAL
"AIRPORT HAZARDS" (FN9) - A DUTY EXPLICITLY PLACED ON THE LOCAL
COMMUNITIES BY THE STATUTE (SEC. 1110) AND BY THEIR CONTRACT WITH THE
GOVERNMENT.  THERE IS NO SUCH DUTY ON THE LOCAL COMMUNITY TO ACQUIRE
FLIGHT AIRSPACE.  HAVING TAKEN THE AIRSPACE OVER GRIGGS' PRIVATE
PROPERTY FOR A PUBLIC USE, IT IS THE UNITED STATES WHICH OWES JUST
COMPENSATION. 

THE CONSTRUCTION OF THE GREATER PITTSBURGH AIRPORT WAS FINANCED IN
LARGE PART BY FUNDS SUPPLIED BY THE UNITED STATES AS PART OF ITS PLAN
TO INDUCE LOCALITIES LIKE ALLEGHENY COUNTY TO ASSIST IN SETTING UP A
NATIONAL AND INTERNATIONAL AIR-TRANSPORTATION SYSTEM.  THE COURT'S
IMPOSITION OF LIABILITY ON ALLEGHENY COUNTY, HOWEVER, GOES A LONG WAY
TOWARD DEFEATING THAT PLAN BECAUSE OF THE GREATLY INCREASED FINANCIAL
BURDENS (HOW GREAT ONE CAN ONLY GUESS) WHICH WILL HEREAFTER FALL ON ALL
THE CITIES AND COUNTIES WHICH TILL NOW HAVE GIVEN OR MAY HEREAFTER GIVE
SUPPORT TO THE NATIONAL PROGRAM.  I DO NOT BELIEVE THAT CONGRESS EVER
INTENDED ANY SUCH FRUSTRATION OF ITS OWN PURPOSE. 

NOR DO I BELIEVE THAT CONGRESS INTENDED THE WHOLLY INEQUITABLE AND
UNJUST SADDLING OF THE ENTIRE FINANCIAL BURDEN OF THIS PART OF THE
NATIONAL PROGRAM ON THE PEOPLE OF LOCAL COMMUNITIES LIKE ALLEGHENY
COUNTY.  THE PLANES THAT TAKE OFF AND LAND AT THE GREATER PITTSBURGH
AIRPORT WIND THEIR RAPID WAY THROUGH SPACE NOT FOR THE PECULIAR BENEFIT
OF THE CITIZENS OF ALLEGHENY COUNTY BUT AS PART OF A GREAT, RELIABLE
TRANSPORTATION SYSTEM OF IMMENSE ADVANTAGE TO THE WHOLE NATION IN TIME
OF PEACE AND WAR.  JUST AS IT WOULD BE UNFAIR TO REQUIRE PETITIONER AND
OTHERS WHO SUFFER SERIOUS AND PECULIAR INJURIES BY REASON OF THESE
TRANSPORTATION FLIGHTS TO BEAR AN UNFAIR PROPORTION OF THE BURDENS OF
AIR COMMERCE, SO IT WOULD BE UNFAIR TO MAKE ALLEGHENY COUNTY BEAR
EXPENSES WHOLLY OUT OF PROPORTION TO THE ADVANTAGES IT CAN RECEIVE FROM
THE NATIONAL TRANSPORTATION SYSTEM.  I CAN SEE NO JUSTIFICATION AT ALL
FOR THROWING THIS MONKEY WRENCH INTO CONGRESS' FINELY TUNED NATIONAL
TRANSIT MECHANISM.  I WOULD AFFIRM THE STATE COURT'S JUDGMENT HOLDING
THAT THE COUNTY OF ALLEGHENY HAS NOT "TAKEN" PETITIONER'S PROPERTY. 

FN1  328 U.S. 256. 

FN2  WE ARE NOT CALLED ON TO PASS ON ANY QUESTION OF "TAKING" UNDER
THE PENNSYLVANIA CONSTITUTION OR LAWS. 

FN3  60 STAT. 174-176, AS AMENDED, 49 U.S.C. SECS. 1108, 1110.  THE
DUTIES OF THE CIVIL AERONAUTICS ADMINISTRATOR HAVE SINCE BEEN
TRANSFERRED TO THE FEDERAL AVIATION AGENCY ADMINISTRATOR.  72 STAT. 806
807. 

FN4  THE FEDERAL AVIATION AGENCY ADMINISTRATOR IS DIRECTED TO PREPARE
AND MAINTAIN A "NATIONAL PLAN FOR THE DEVELOPMENT OF PUBLIC AIRPORTS IN
THE UNITED STATES" TAKING "INTO ACCOUNT THE NEEDS OF BOTH AIR COMMERCE
AND PRIVATE FLYING, THE PROBABLE TECHNOLOGICAL DEVELOPMENTS IN THE
SCIENCE OF AERONAUTICS, AND THE PROBABLE GROWTH AND REQUIREMENTS OF
CIVIL AERONAUTICS."  49 U.S.C. SEC. 1102.  THE DETAILED FEATURES OF THE
FEDERAL REGULATORY AND DEVELOPMENT SCHEME ARE FOUND IN 49 U.S.C. CC. 14
(FEDERAL-AID FOR PUBLIC AIRPORT DEVELOPMENT), 15 (INTERNATIONAL
AVIATION FACILITIES) AND 20 (FEDERAL AVIATION PROGRAM). 

FN5  52 STAT. 1028, 49 U.S.C. SEC. 1508. 

FN6  52 STAT. 980, 49 U.S.C. SEC. 1304. 

FN7  SECTION 101(24) OF THE FEDERAL AVIATION ACT OF 1958 PROVIDES:
"'NAVIGABLE AIRSPACE' MEANS AIRSPACE ABOVE THE MINIMUM ALTITUDES OF
FLIGHT PRESCRIBED BY REGULATIONS ISSUED UNDER THIS ACT, AND SHALL
INCLUDE AIRSPACE NEEDED TO INSURE SAFETY IN TAKE-OFF AND LANDING OF
AIRCRAFT."  72 STAT. 739, 49 U.S.C. SEC. 1301(24). 

FN8  14 CFR SEC. 60.18.  THE ADMINISTRATOR OF THE FEDERAL AVIATION
AGENCY IS DIRECTED TO CONTROL "THE USE OF THE NAVIGABLE AIRSPACE OF THE
UNITED STATES."  49 U.S.C. SEC. 1303(C). 

FN9  THE TERM "AIRPORT HAZARD" MEANS "ANY STRUCTURE OR OBJECT OF
NATURAL GROWTH  ...  OR ANY USE OF LAND  ...  WHICH OBSTRUCTS THE AIR
SPACE  ...  OR IS OTHERWISE HAZARDOUS TO  ...  LANDING OR TAKING OFF OF
AIRCRAFT."  49 U.S.C. SEC. 1101(A)(4). 
..END :



LOCAL 174, TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA V.
LUCAS FLOUR CO. 369 U.S. 95 


NO. 50.  ARGUED NOVEMBER 7-8, 1961 - DECIDED MARCH 5, 1962 - 57 WASH. 2D
95, 356 P.2D 1, AFFIRMED. 


A COLLECTIVE BARGAINING CONTRACT BETWEEN AN EMPLOYER IN A BUSINESS
AFFECTING INTERSTATE COMMERCE AND A UNION OF ITS EMPLOYEES RESERVED TO
THE EMPLOYER THE RIGHT TO DISCHARGE ANY EMPLOYEE FOR UNSATISFACTORY
WORK AND PROVIDED FOR COMPULSORY, FINAL AND BINDING SETTLEMENT BY
ARBITRATION OF ANY DISPUTE BETWEEN THE EMPLOYER AND ANY EMPLOYEE; BUT
IT DID NOT CONTAIN AN EXPLICIT NO-STRIKE CLAUSE APPLICABLE TO SUCH
DISPUTES.  THE EMPLOYER DISCHARGED AN EMPLOYEE FOR UNSATISFACTORY WORK,
AND THE UNION CALLED A STRIKE TO FORCE THE EMPLOYER TO REHIRE HIM.  THE
EMPLOYER SUED THE UNION IN A WASHINGTON STATE COURT FOR DAMAGES FOR
BUSINESS LOSSES CAUSED BY THE STRIKE.  THE TRIAL COURT AWARDED A
JUDGMENT IN FAVOR OF THE EMPLOYER AND A DEPARTMENT OF THE SUPREME COURT
OF WASHINGTON AFFIRMED.  WITHOUT PETITIONING THAT COURT FOR A REHEARING
EN BANC, THE UNION PETITIONED THIS COURT FOR CERTIORARI, WHICH WAS
GRANTED.  HELD: 

1.  UNDER WASHINGTON LAW, THE JUDGMENT BELOW WAS A FINAL JUDGMENT OF
THE STATE'S HIGHEST COURT, AND THIS COURT HAS JURISDICTION OF THIS CASE
UNDER 28 U.S.C. SEC. 1257.  GORMAN V. WASHINGTON UNIVERSITY, 316 U.S.
98, DISTINGUISHED.  PP. 98-101. 

2.  SECTION 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, DID
NOT DEPRIVE THE STATE COURTS OF JURISDICTION OVER THIS CASE.  CHARLES
DOWD BOX CO. V. COURTNEY, 368 U.S. 502.  P. 101. 

3.  IN A CASE SUCH AS THIS, INCOMPATIBLE DOCTRINES OF LOCAL LAW MUST
GIVE WAY TO PRINCIPLES OF FEDERAL LABOR LAW.  PP. 102-104. 

4.  UNDER FEDERAL LABOR LAW, A STRIKE TO SETTLE A DISPUTE WHICH A
COLLECTIVE BARGAINING AGREEMENT PROVIDES SHALL BE SETTLED EXCLUSIVELY
AND FINALLY BY COMPULSORY ARBITRATION CONSTITUTES A VIOLATION OF THE
AGREEMENT, EVEN WHEN THE AGREEMENT DOES NOT CONTAIN AN EXPLICIT NO
STRIKE CLAUSE.  PP. 104-106. 

LOCAL 174, TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, V.
LUCAS FLOUR CO. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER AND THE RESPONDENT (WHICH WE SHALL CALL THE UNION AND
THE EMPLOYER) WERE PARTIES TO A COLLECTIVE BARGAINING CONTRACT WITHIN
THE PURVIEW OF THE NATIONAL LABOR RELATIONS ACT.  THE CONTRACT
CONTAINED THE FOLLOWING PROVISIONS, AMONG OTHERS:

                                         "ARTICLE II 

"THE EMPLOYER RESERVES THE RIGHT TO DISCHARGE ANY MAN IN HIS EMPLOY
IF HIS WORK IS NOT SATISFACTORY. 

     *         *         *         *         *

                    "ARTICLE XIV 

"SHOULD ANY DIFFERENCE AS TO THE TRUE INTERPRETATION OF THIS
AGREEMENT ARISE, SAME SHALL BE SUBMITTED TO A BOARD OF ARBITRATION OF
TWO MEMBERS, ONE REPRESENTING THE FIRM, AND ONE REPRESENTING THE
UNION.  IF SAID MEMBERS CANNOT AGREE, A THIRD MEMBER, WHO MUST BE A
DISINTERESTED PARTY SHALL BE SELECTED, AND THE DECISION OF THE SAID
BOARD OF ARBITRATION SHALL BE BINDING.  IT IS FURTHER AGREED BY BOTH
PARTIES HERETO THAT DURING SUCH ARBITRATION, THERE SHALL BE NO
SUSPENSION OF WORK. 

"SHOULD ANY DIFFERENCE ARISE BETWEEN THE EMPLOYER AND THE EMPLOYEE,
SAME SHALL BE SUBMITTED TO ARBITRATION BY BOTH PARTIES.  FAILING TO
AGREE, THEY SHALL MUTUALLY APPOINT A THIRD PERSON WHOSE DECISION SHALL
BE FINAL AND BINDING." 

IN MAY OF 1958 AN EMPLOYEE NAMED WELSCH WAS DISCHARGED BY THE
EMPLOYER AFTER HE HAD DAMAGED A NEW FORK-LIFT TRUCK BY RUNNING IT OFF A
LOADING PLATFORM AND ONTO SOME RAILROAD TRACKS.  WHEN A BUSINESS AGENT
OF THE UNION PROTESTED, HE WAS TOLD BY A REPRESENTATIVE OF THE EMPLOYER
THAT WELSCH HAD BEEN DISCHARGED BECAUSE OF UNSATISFACTORY WORK.  THE
UNION THEREUPON CALLED A STRIKE TO FORCE THE EMPLOYER TO REHIRE
WELSCH.  THE STRIKE LASTED EIGHT DAYS.  (FN1)  AFTER THE STRIKE WAS
OVER, THE ISSUE OF WELSCH'S DISCHARGE WAS SUBMITTED TO ARBITRATION. 
SOME FIVE MONTHS LATER THE BOARD OF ARBITRATION RENDERED A DECISION,
RULING THAT WELSCH'S WORK HAD BEEN UNSATISFACTORY, THAT HIS
UNSATISFACTORY WORK HAD BEEN THE REASON FOR HIS DISCHARGE, AND THAT HE
WAS NOT ENTITLED TO REINSTATEMENT AS AN EMPLOYEE. 

IN THE MEANTIME, THE EMPLOYER HAD BROUGHT THIS SUIT AGAINST THE UNION
IN THE SUPERIOR COURT OF KING COUNTY, WASHINGTON, ASKING DAMAGES FOR
BUSINESS LOSSES CAUSED BY THE STRIKE.  AFTER A TRIAL THAT COURT ENTERED
A JUDGMENT IN FAVOR OF THE EMPLOYER IN THE AMOUNT OF $6,501.60.  (FN2)
ON APPEAL THE JUDGMENT WAS AFFIRMED BY DEPARTMENT ONE OF THE SUPREME
COURT OF WASHINGTON.  57 WASH. 2D 95, 356 P.2D 1.  THE REVIEWING COURT
HELD THAT THE PRE-EMPTION DOCTRINE OF SAN DIEGO BUILDING TRADES COUNCIL
V. GARMON, 359 U.S. 236, DID NOT DEPRIVE IT OF JURISDICTION OVER THE
CONTROVERSY.  THE COURT FURTHER HELD THAT SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT OF 1947, 29 U.S.C. SEC. 185, COULD NOT
"REASONABLY BE INTERPRETED AS PRE-EMPTING STATE JURISDICTION, OR AS
AFFECTING IT BY LIMITING THE SUBSTANTIVE LAW TO BE APPLIED."  57 WASH.
2D, AT 102, 356 P.2D, AT 5.  EXPRESSLY APPLYING PRINCIPLES OF STATE
LAW, THE COURT REASONED THAT THE STRIKE WAS A VIOLATION OF THE
COLLECTIVE BARGAINING CONTRACT, BECAUSE IT WAS AN ATTEMPT TO COERCE THE
EMPLOYER TO FOREGO HIS CONTRACTUAL RIGHT TO DISCHARGE AN EMPLOYEE FOR
UNSATISFACTORY WORK.  (FN3)  WE GRANTED CERTIORARI TO CONSIDER
QUESTIONS OF FEDERAL LABOR LAW WHICH THIS CASE PRESENTS.  365 U.S.
868. 

WE NOTE AT THE OUTSET A QUESTION AS TO OUR JURISDICTION.  ALTHOUGH
THE JUDGMENT BEFORE US HAS BEEN CERTIFIED AS THAT OF THE SUPREME COURT
OF WASHINGTON, THIS CASE WAS ACTUALLY HEARD AND DECIDED BY DEPARTMENT
ONE OF THAT COURT, CONSISTING OF FIVE OF THE NINE MEMBERS OF THE FULL
COURT.  SINCE THE UNION COULD HAVE FILED A PETITION FOR REHEARING EN
BANC BUT DID NOT DO SO, THE ARGUMENT IS MADE THAT THE JUDGMENT BEFORE
US WAS NOT "RENDERED BY THE HIGHEST COURT OF A STATE IN WHICH A
DECISION COULD BE HAD," AND THAT THE JUDGMENT IS ONE WE THEREFORE HAVE
NO POWER TO REVIEW.  28 U.S.C. SEC. 1257.  THIS ARGUMENT PRIMARILY
RESTS UPON GORMAN V. WASHINGTON UNIVERSITY, 316 U.S. 98, WHICH HELD
THAT, IN VIEW OF THE STRUCTURE OF MISSOURI'S JUDICIAL SYSTEM, A
SEPARATE DIVISION OF THE SUPREME COURT OF THAT STATE WAS NOT THE
HIGHEST STATE COURT IN WHICH A DECISION OF A FEDERAL QUESTION COULD BE
HAD.  (FN4)  IT IS EVIDENT, HOWEVER, THAT THE LAW GOVERNING REHEARINGS
IN THE SUPREME COURT OF WASHINGTON IS QUITE UNLIKE THE PARTICULARIZED
PROVISIONS OF MISSOURI LAW WHICH LED THIS COURT TO DISMISS THE WRIT IN
GORMAN. 

AS THE OPINION IN GORMAN POINTED OUT, THE CONSTITUTION OF THE STATE
OF MISSOURI EXPRESSLY CONFERRED THE RIGHT TO AN EN BANC REHEARING BY
THE SUPREME COURT OF MISSOURI IN ANY CASE ORIGINALLY DECIDED BY A
DIVISION OF THE COURT IN WHICH A FEDERAL QUESTION WAS INVOLVED.  IT WAS
THIS PROVISION OF THE STATE CONSTITUTION WHICH WAS THE BASIS FOR THE
CONCLUSION IN GORMAN THAT THE STATE OF MISSOURI DID NOT REGARD A
DECISION BY A DIVISION OF THE COURT AS THE FINAL STEP IN THE STATE
APPELLATE PROCESS IN A CASE INVOLVING A FEDERAL QUESTION.  "THE
CONSTITUTION OF MISSOURI," IT WAS SAID, "HAS THUS PROVIDED IN THIS
CLASS OF CASES FOR REVIEW OF THE JUDGMENT OF A DIVISION  ...  ."  316
U.S., AT 100. 

BY CONTRAST, A REHEARING EN BANC BEFORE THE SUPREME COURT OF
WASHINGTON IS NOT GRANTED AS A MATTER OF RIGHT.  THE CONSTITUTION AND
STATUTES OF THE STATE OF WASHINGTON AUTHORIZE ITS SUPREME COURT TO SIT
IN TWO DEPARTMENTS, EACH OF WHICH IS EMPOWERED "TO HEAR AND DETERMINE
CAUSES, AND ALL QUESTIONS ARISING THEREIN."  (FN5)  CASES COMING BEFORE
THE COURT MAY BE ASSIGNED TO A DEPARTMENT OF TO THE COURT EN BANC AT
THE DISCRETION OF THE CHIEF JUSTICE AND A SPECIFIED NUMBER OF OTHER
MEMBERS OF THE COURT.  (FN6)  THE STATE LAW FURTHER PROVIDES THAT THE
DECISION OF A DEPARTMENT BECOMES A FINAL JUDGMENT OF THE SUPREME COURT
OF WASHINGTON, UNLESS WITHIN 30 DAYS A PETITION FOR REHEARING HAS BEEN
FILED, OR A REHEARING HAS BEEN ORDERED ON THE COURT'S OWN INITIATIVE. 
(FN7) 

WE CAN DISCERN IN WASHINGTON'S SYSTEM NO INDICATION THAT THE DECISION
IN THE PRESENT CASE, RENDERED UNANIMOUSLY BY A MAJORITY OF THE JUDGES
OF THE SUPREME COURT OF WASHINGTON, WAS OTHER THAN THE FINAL WORD OF
THE STATE'S FINAL COURT.  (FN8)  THIS CASE IS THUS PROPERLY BEFORE US,
AND WE TURN TO THE ISSUES WHICH IT PRESENTS. 

ONE OF THOSE ISSUES - WHETHER SEC. 301(A) OF THE LABOR MANAGEMENT
RELATIONS ACT OF 1947 DEPRIVES STATE COURTS OF JURISDICTION OVER
LITIGATION SUCH AS THIS - WE HAVE DECIDED THIS TERM IN CHARLES DOWD BOX
CO. V. COURTNEY, 368 U.S. 502.  FOR THE REASONS STATED IN OUR OPINION
IN THAT CASE, WE HOLD THAT THE WASHINGTON SUPREME COURT WAS CORRECT IN
RULING THAT IT HAD JURISDICTION OVER THIS CONTROVERSY.  (FN9)  THERE
REMAIN FOR CONSIDERATION TWO OTHER ISSUES, ONE OF THEM IMPLICATED BUT
NOT SPECIFICALLY DECIDED IN DOWD BOX.  WAS THE WASHINGTON COURT FREE,
AS IT THOUGHT, TO DECIDE THIS CONTROVERSY WITHIN THE LIMITED HORIZON OF
ITS LOCAL LAW?  IF NOT, DOES APPLICABLE FEDERAL LAW REQUIRE A RESULT IN
THIS CASE DIFFERENT FROM THAT REACHED BY THE STATE COURT? 

IN DOWD BOX WE PROCEEDED UPON THE HYPOTHESIS THAT STATE COURTS WOULD
APPLY FEDERAL LAW IN EXERCISING JURISDICTION OVER LITIGATION WITHIN THE
PURVIEW OF SEC. 301(A), ALTHOUGH IN THAT CASE THERE WAS NO CLAIM OF ANY
VARIANCE IN RELEVANT LEGAL PRINCIPLES AS BETWEEN THE FEDERAL LAW AND
THAT OF MASSACHUSETTS.  IN THE PRESENT CASE, BY CONTRAST, THE
WASHINGTON COURT HELD THAT THERE WAS NOTHING IN SEC. 301 "LIMITING THE
SUBSTANTIVE LAW TO BE APPLIED," AND THE COURT ACCORDINGLY PROCEEDED TO
DISPOSE OF THIS LITIGATION EXCLUSIVELY IN TERMS OF LOCAL CONTRACT LAW. 
THE UNION INSISTS THAT THE CASE WAS ONE TO BE DECIDED BY REFERENCE TO
FEDERAL LAW, AND THAT UNDER APPLICABLE PRINCIPLES OF NATIONAL LABOR LAW
THE STRIKE WAS NOT A VIOLATION OF THE COLLECTIVE BARGAINING CONTRACT. 
WE HOLD THAT IN A CASE SUCH AS THIS, INCOMPATIBLE DOCTRINES OF LOCAL
LAW MUST GIVE WAY TO PRINCIPLES OF FEDERAL LABOR LAW.  (FN10)  WE
FURTHER HOLD, HOWEVER, THAT APPLICATION OF SUCH PRINCIPLES TO THIS CASE
LEADS TO AFFIRMANCE OF THE JUDGMENT BEFORE US. 

IT WAS APPARENTLY THE THEORY OF THE WASHINGTON COURT THAT, ALTHOUGH
TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, REQUIRES THE
FEDERAL COURTS TO FASHION, FROM THE POLICY OF OUR NATIONAL LABOR LAWS,
A BODY OF FEDERAL LAW FOR THE ENFORCEMENT OF COLLECTIVE BARGAINING
AGREEMENTS, NONETHELESS, THE COURTS OF THE STATES REMAIN FREE TO APPLY
INDIVIDUALIZED LOCAL RULES WHEN CALLED UPON TO ENFORCE SUCH
AGREEMENTS.  THIS VIEW CANNOT BE ACCEPTED.  THE DIMENSIONS OF SEC. 301
REQUIRE THE CONCLUSION THAT SUBSTANTIVE PRINCIPLES OF FEDERAL LABOR LAW
MUST BE PARAMOUNT IN THE AREA COVERED BY THE STATUTE. 
COMPREHENSIVENESS IS INHERENT IN THE PROCESS BY WHICH THE LAW IS TO BE
FORMULATED UNDER THE MANDATE OF LINCOLN MILLS, REQUIRING ISSUES RAISED
IN SUITS OF A KIND COVERED BY SEC. 301 TO BE DECIDED ACCORDING TO THE
PRECEPTS OF FEDERAL LABOR POLICY. 

MORE IMPORTANT, THE SUBJECT MATTER OF SEC. 301(A) "IS PECULIARLY ONE
THAT CALLS FOR UNIFORM LAW."  PENNSYLVANIA R. CO. V. PUBLIC SERVICE
COMM'N, 250 U.S. 566, 569; SEE CLOVERLEAF BUTTER CO. V. PATTERSON, 315
U.S. 148, 167-169.  THE POSSIBILITY THAT INDIVIDUAL CONTRACT TERMS
MIGHT HAVE DIFFERENT MEANINGS UNDER STATE AND FEDERAL LAW WOULD
INEVITABLY EXERT A DISRUPTIVE INFLUENCE UPON BOTH THE NEGOTIATION AND
ADMINISTRATION OF COLLECTIVE AGREEMENTS.  BECAUSE NEITHER PARTY COULD
BE CERTAIN OF THE RIGHTS WHICH IT HAD OBTAINED OR CONCEDED, THE PROCESS
OF NEGOTIATING AN AGREEMENT WOULD BE MADE IMMEASURABLY MORE DIFFICULT
BY THE NECESSITY OF TRYING TO FORMULATE CONTRACT PROVISIONS IN SUCH A
WAY AS TO CONTAIN THE SAME MEANING UNDER TWO OR MORE SYSTEMS OF LAW
WHICH MIGHT SOMEDAY BE INVOKED IN ENFORCING THE CONTRACT.  ONCE THE
COLLECTIVE BARGAIN WAS MADE, THE POSSIBILITY OF CONFLICTING SUBSTANTIVE
INTERPRETATION UNDER COMPETING LEGAL SYSTEMS WOULD TEND TO STIMULATE
AND PROLONG DISPUTES AS TO ITS INTERPRETATION.  (FN11)  INDEED, THE
EXISTENCE OF POSSIBLY CONFLICTING LEGAL CONCEPTS MIGHT SUBSTANTIALLY
IMPEDE THE PARTIES' WILLINGNESS TO AGREE TO CONTRACT TERMS PROVIDING
FOR FINAL ARBITRAL OR JUDICIAL RESOLUTION OF DISPUTES. 

THE IMPORTANCE OF THE AREA WHICH WOULD BE AFFECTED BY SEPARATE
SYSTEMS OF SUBSTANTIVE LAW MAKES THE NEED FOR A SINGLE BODY OF FEDERAL
LAW PARTICULARLY COMPELLING.  THE ORDERING AND ADJUSTING OF COMPETING
INTERESTS THROUGH A PROCESS OF FREE AND VOLUNTARY COLLECTIVE BARGAINING
IS THE KEYSTONE OF THE FEDERAL SCHEME TO PROMOTE INDUSTRIAL PEACE. 
STATE LAW WHICH FRUSTRATES THE EFFORT OF CONGRESS TO STIMULATE THE
SMOOTH FUNCTIONING OF THAT PROCESS THUS STRIKES AT THE VERY CORE OF
FEDERAL LABOR POLICY.  WITH DUE REGARD TO THE MANY FACTORS WHICH BEAR
UPON COMPETING STATE AND FEDERAL INTERESTS IN THIS AREA, CALIFORNIA V.
ZOOK, 336 U.S. 725, 730-731; RICE V. SANTA FE ELEVATOR CORP., 331 U.S.
218, 230-231, WE CANNOT BUT CONCLUDE THAT IN ENACTING SEC. 301 CONGRESS
INTENDED DOCTRINES OF FEDERAL LABOR LAW UNIFORMLY TO PREVAIL OVER
INCONSISTENT LOCAL RULES. 

WHETHER, AS A MATTER OF FEDERAL LAW, THE STRIKE WHICH THE UNION
CALLED WAS A VIOLATION OF THE COLLECTIVE BARGAINING CONTRACT IS THUS
THE ULTIMATE ISSUE WHICH THIS CASE PRESENTS.  IT IS ARGUED THAT THERE
COULD BE NO VIOLATION IN THE ABSENCE OF A NO-STRIKE CLAUSE IN THE
CONTRACT EXPLICITLY COVERING THE SUBJECT OF THE DISPUTE OVER WHICH THE
STRIKE WAS CALLED.  WE DISAGREE. 

THE COLLECTIVE BARGAINING CONTRACT EXPRESSLY IMPOSED UPON BOTH
PARTIES THE DUTY OF SUBMITTING THE DISPUTE IN QUESTION TO FINAL AND
BINDING ARBITRATION.  (FN12)  IN A CONSISTENT COURSE OF DECISIONS THE
COURTS OF APPEALS OF AT LEAST FIVE FEDERAL CIRCUITS HAVE HELD THAT A
STRIKE TO SETTLE A DISPUTE WHICH A COLLECTIVE BARGAINING AGREEMENT
PROVIDES SHALL BE SETTLED EXCLUSIVELY AND FINALLY BY COMPULSORY
ARBITRATION CONSTITUTES A VIOLATION OF THE AGREEMENT.  (FN13)  THE
NATIONAL LABOR RELATIONS BOARD HAS REACHED THE SAME CONCLUSION.  W.L.
MEAD, INC., 113 N.L.R.B. 1040.  WE APPROVE THAT DOCTRINE.  (FN14)  TO
HOLD OTHERWISE WOULD OBVIOUSLY DO VIOLENCE TO ACCEPTED PRINCIPLES OF
TRADITIONAL CONTRACT LAW.  EVEN MORE IN POINT, A CONTRARY VIEW WOULD BE
COMPLETELY AT ODDS WITH THE BASIC POLICY OF NATIONAL LABOR LEGISLATION
TO PROMOTE THE ARBITRAL PROCESS AS A SUBSTITUTE FOR ECONOMIC WARFARE. 
SEE UNITED STEELWORKERS V. WARRIOR & GULF NAV. CO., 363 U.S. 574. 

WHAT HAS BEEN SAID IS NOT TO SUGGEST THAT A NO-STRIKE AGREEMENT IS TO
BE IMPLIED BEYOND THE AREA WHICH IT HAS BEEN AGREED WILL BE EXCLUSIVELY
COVERED BY COMPULSORY TERMINAL ARBITRATION.  NOR IS IT TO SUGGEST THAT
THERE MAY NOT ARISE PROBLEMS IN SPECIFIC CASES AS TO WHETHER COMPULSORY
AND BINDING ARBITRATION HAS BEEN AGREED UPON, AND, IF SO, AS TO WHAT
DISPUTES HAVE BEEN MADE ARBITRABLE.  (FN15)  BUT NO SUCH PROBLEMS ARE
PRESENT IN THIS CASE.  THE GRIEVANCE OVER WHICH THE UNION STRUCK WAS,
AS IT CONCEDES, ONE WHICH IT HAD EXPRESSLY AGREED TO SETTLE BY
SUBMISSION TO FINAL AND BINDING ARBITRATION PROCEEDINGS.  THE STRIKE
WHICH IT CALLED WAS A VIOLATION OF THAT CONTRACTUAL OBLIGATION. 
AFFIRMED.    FN1  THE STRIKE WAS TERMINATED BY A TEMPORARY INJUNCTION
ISSUED BY THE STATE COURT. 

FN2  THE AMOUNT OF DAMAGES IS NOT IN ISSUE HERE. 

FN3  THE COURT NOTED THAT THE UNREPORTED MEMORANDUM OPINION OF THE
TRIAL JUDGE INDICATED A THEORY OF LIABILITY BASED UPON TORT, RATHER
THAN CONTRACT, LIABILITY.  THE APPELLATE COURT SAID, HOWEVER: "FROM THE
PLEADINGS, THE THEORY IS ESTABLISHED THAT THE RESPONDENT WAS INJURED BY
THE APPELLANT'S BREACH OF CONTRACT AND THIS THEORY IS CLEARLY SUPPORTED
BY THE RECORD.  THEREFORE, THE RULE THAT THE JUDGMENT OF THE TRIAL
COURT WILL BE SUSTAINED ON ANY THEORY ESTABLISHED BY THE PLEADINGS AND
SUPPORTED BY THE PROOF IS APPLICABLE."  57 WASH. 2D, AT 103, 356 P.2D,
AT 6. 

FN4  SEE ALSO OSMENT V. PITCAIRN, 317 U.S. 587. 

FN5  ARTICLE IV, SEC. 2 OF THE STATE CONSTITUTION PROVIDES, IN
PERTINENT PART, "THE LEGISLATURE MAY INCREASE THE NUMBER OF JUDGES OF
THE SUPREME COURT FROM TIME TO TIME AND MAY PROVIDE FOR SEPARATE
DEPARTMENTS OF SAID COURT." 

REVISED CODE OF WASHINGTON, SEC. 2.04.120, PROVIDES: 

"TWO DEPARTMENTS - QUORUM.  THERE SHALL BE TWO DEPARTMENTS OF THE
SUPREME COURT, DENOMINATED RESPECTIVELY DEPARTMENT ONE AND DEPARTMENT
TWO.  THE CHIEF JUSTICE SHALL ASSIGN FOUR OF THE ASSOCIATE JUDGES TO
EACH DEPARTMENT AND SUCH ASSIGNMENT MAY BE CHANGED BY HIM FROM TIME TO
TIME: PROVIDED, THAT THE ASSOCIATE JUDGES SHALL BE COMPETENT TO SIT IN
EITHER DEPARTMENT AND MAY INTERCHANGE WITH ONE ANOTHER BY AGREEMENT
AMONG THEMSELVES, OR IF NO SUCH AGREEMENT BE MADE, AS ORDERED BY THE
CHIEF JUSTICE.  THE CHIEF JUSTICE MAY SIT IN EITHER DEPARTMENT AND
SHALL PRESIDE WHEN SO SITTING, BUT THE JUDGES ASSIGNED TO EACH
DEPARTMENT SHALL SELECT ONE OF THEIR NUMBER AS PRESIDING JUDGE.  EACH
OF THE DEPARTMENTS SHALL HAVE THE POWER TO HEAR AND DETERMINE CAUSES,
AND ALL QUESTIONS ARISING THEREIN, SUBJECT TO THE PROVISIONS IN
RELATION TO THE COURT EN BANC.  THE PRESENCE OF THREE JUDGES SHALL BE
NECESSARY TO TRANSACT ANY BUSINESS IN EITHER OF THE DEPARTMENTS, EXCEPT
SUCH AS MAY BE DONE AT CHAMBERS, BUT ONE OR MORE OF THE JUDGES MAY FROM
TIME TO TIME ADJOURN TO THE SAME EFFECT AS IF ALL WERE PRESENT, AND A
CONCURRENCE OF THREE JUDGES SHALL BE NECESSARY TO PRONOUNCE A DECISION
IN EACH DEPARTMENT: PROVIDED, THAT IF THREE DO NOT CONCUR, THE CAUSE
SHALL BE REHEARD IN THE SAME DEPARTMENT OR TRANSMITTED TO THE OTHER
DEPARTMENT, OR TO THE COURT EN BANC." 

FN6  REVISED CODE OF WASHINGTON, SEC. 2.04.150, PROVIDES: 

"APPORTIONMENT OF BUSINESS - EN BANC HEARINGS.  THE CHIEF JUSTICE
SHALL FROM TIME TO TIME APPORTION THE BUSINESS TO THE DEPARTMENTS, AND
MAY, IN HIS DISCRETION, BEFORE A DECISION IS PRONOUNCED, ORDER ANY
CAUSE PENDING BEFORE THE COURT TO BE HEARD AND DETERMINED BY THE COURT
EN BANC.  WHEN A CAUSE HAS BEEN ALLOTTED TO ONE OF THE DEPARTMENTS AND
A DECISION PRONOUNCED THEREIN, THE CHIEF JUSTICE, TOGETHER WITH ANY TWO
ASSOCIATE JUDGES, MAY ORDER SUCH CAUSE TO BE HEARD AND DECIDED BY THE
COURT EN BANC.  ANY FOUR JUDGES MAY, EITHER BEFORE OR AFTER DECISION BY
A DEPARTMENT, ORDER A CAUSE TO BE HEARD EN BANC." 

FN7  REVISED CODE OF WASHINGTON, SEC. 2.04.160, PROVIDES: 

"FINALITY OF DEPARTMENTAL DECISION - REHEARINGS.  THE DECISION OF A
DEPARTMENT, EXCEPT IN CASES OTHERWISE ORDERED AS HEREINAFTER PROVIDED,
SHALL NOT BECOME FINAL UNTIL THIRTY DAYS AFTER THE FILING THEREOF,
DURING WHICH PERIOD A PETITION FOR REHEARING, OR FOR A HEARING EN BANC,
MAY BE FILED, THE FILING OF EITHER OF WHICH, EXCEPT AS HEREINAFTER
OTHERWISE PROVIDED, SHALL HAVE THE EFFECT OF SUSPENDING SUCH DECISION
UNTIL THE SAME SHALL HAVE BEEN DISPOSED OF.  IF NO SUCH PETITION BE
FILED THE DECISION OF A DEPARTMENT SHALL BECOME FINAL THIRTY DAYS FROM
THE DATE OF ITS FILING, UNLESS DURING SUCH THIRTY-DAY PERIOD AN ORDER
FOR A HEARING EN BANC SHALL HAVE BEEN MADE:  ...  .  WHENEVER A
DECISION SHALL BECOME FINAL, AS HEREIN PROVIDED, A JUDGMENT SHALL ISSUE
THERON." 

FN8  SEE MARKET STREET R. CO. V. COMM'N, 324 U.S. 548, 551-552.  IN
RECENT YEARS WE HAVE, WITHOUT CHALLENGE, REVIEWED ON THEIR MERITS
SEVERAL CASES DECIDED BY A DEPARTMENT OF THE WASHINGTON SUPREME COURT
IN WHICH NO PETITION FOR REHEARING EN BANC HAD BEEN FILED.  SEE, E.G.,
MCGRATH V. RHAY, 364 U.S. 279; ROSS V. SCHNECKLOTH, 357 U.S. 575;
UNITED STATES V. CARROLL CONSTRUCTION CO., 346 U.S. 802. 

FN9  SINCE THIS WAS A SUIT FOR VIOLATION OF A COLLECTIVE BARGAINING
CONTRACT WITHIN THE PURVIEW OF SEC. 301(A) OF THE LABOR MANAGEMENT
RELATIONS ACT OF 1947, THE PRE-EMPTIVE DOCTRINE OF CASES SUCH AS SAN
DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, BASED UPON THE
EXCLUSIVE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD, IS NOT
RELEVANT.  SEE LOCAL 4264, UNITED STEELWORKERS V. NEW PARK MINING CO.,
273 F.2D 352 (C.A. 10TH CIR.); INDEPENDENT PETROLEUM WORKERS V. ESSO
STANDARD OIL CO., 235 F.2D 401 (C.A. 3D CIR.); SEE GENERALLY LODGE NO.
12, DISTRICT NO. 37, INT'L. ASSN. OF MACHINISTS V. CAMERON IRON WORKS,
INC., 257 F.2D 467 (C.A. 5TH CIR.); LOCAL 598, PLUMBERS & STEAMFITTERS
UNION V. DILLION, 255 F.2D 820 (C.A. 9TH CIR.); LOCAL 181, INT'L UNION
OF OPERATING ENGINEERS V. DAHLEM CONSTR.  CO., 193 F.2D 470 (C.A. 6TH
CIR.).  AS POINTED OUT IN CHARLES DOWD BOX CO. V. COURTNEY, 368 U.S.,
AT 513, CONGRESS "DELIBERATELY CHOSE TO LEAVE THE ENFORCEMENT OF
COLLECTIVE AGREEMENTS 'TO THE USUAL PROCESSES OF THE LAW.'"  SEE ALSO
H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. P. 52.  IT IS, OF
COURSE, TRUE THAT CONDUCT WHICH IS A VIOLATION OF A CONTRACTUAL
OBLIGATION MAY ALSO BE CONDUCT CONSTITUTING AN UNFAIR LABOR PRACTICE,
AND WHAT HAS BEEN SAID IS NOT TO IMPLY THAT ENFORCEMENT BY A COURT OF A
CONTRACT OBLIGATION AFFECTS THE JURISDICTION OF THE N.L.R.B. TO REMEDY
UNFAIR LABOR PRACTICES, AS SUCH.  SEE GENERALLY DUNAU, CONTRACTUAL
PROHIBITION OF UNFAIR LABOR PRACTICES:  JURISDICTIONAL PROBLEMS, 57
COL.  L. REV. 52. 

FN10  OF THE MANY STATE COURTS WHICH HAVE ASSUMED JURISDICTION OVER
SUITS INVOLVING CONTRACTS SUBJECT TO SEC. 301, FEW HAVE EXPLICITLY
CONSIDERED THE PROBLEM OF STATE VERSUS FEDERAL LAW.  MCCARROLL V. LOS
ANGELES COUNTY DIST. COUNCIL OF CARPENTERS, 49 CAL. 2D 45, 60, 315 P.2D
322, 330, HELD THAT FEDERAL LAW MUST GOVERN.  ACCORD:  LOCAL LODGE NO.
774, INT'L ASSN. OF MACHINISTS V. CESSNA AIRCRAFT CO., 186 KAN. 569,
352 P.2D 420; HARBISON-WALKER REFRACTORIES CO. V. LOCAL 702, UNITED
BRICK & CLAY WORKERS, 339 S.W.2D 933, 935-936 (KY. CT.  APP.).  OTHER
COURTS HAVE FOUND IT UNNECESSARY TO DECIDE THE QUESTION, BECAUSE THEY
FOUND NO CONFLICT BETWEEN STATE AND FEDERAL LAW ON THE ISSUES
PRESENTED.  KARCZ V. LUTHER MFG. CO., 338 MASS. 313, 317, 155 N.E.2D
441, 444; SPRINGER V. POWDER POWER TOOL CORP., 220 ORE.  102, 106-107,
348 P.2D 1112, 1114; CLARK V. HEIN-WERNER CORP., 8 WIS. 2D 264, 277,
100 N.W.2D 317, 318 (ON MOTION FOR REHEARING).  IT BEARS NOTING,
HOWEVER, THAT THESE COURTS AND OTHERS, E.G., CONNECTICUT CO. V.
DIVISION 425, STREET & ELECTRIC RAILWAY EMPLOYEES, 147 CONN. 608, 622
623, 164 A.2D 413, 420, HAVE CAREFULLY CONSIDERED APPLICABLE FEDERAL
PRECEDENTS IN RESOLVING THE LITIGATION BEFORE THEM. 

FN11  AS ONE COMMENTATOR HAS SAID:  "WORDS IN ANY LEGAL DOCUMENT ARE
AMBIGUOUS, BUT THE BODY OF LAW WHICH GROWS UP IN AN AREA THROUGH
DECISION HELPS TO DISPEL THIS AMBIGUITY.  THE EXISTENCE OF TWO BODIES
OF LAW WHICH CANNOT BE ACCOMMODATED BY ANY CONFLICT-OF-LAWS RULE,
HOWEVER, IS CALCULATED TO AGGRAVATE RATHER THAN TO ALLEVIATE THE
SITUATION."  WELLINGTON, LABOR AND THE FEDERAL SYSTEM, 26 U. OF CHI. 
L. REV. 542, 557. 

FN12  IT APPEARS THAT THIS WOULD BE TRUE WHETHER THE DISPUTE BE
CONSIDERED AS A "DIFFERENCE AS TO THE TRUE INTERPRETATION OF THIS
AGREEMENT" OR AS A DIFFERENCE "BETWEEN THE EMPLOYER AND THE EMPLOYEE"
UNDER ARTICLE XIV OF THE CONTRACT.  SEE P. 96, SUPRA.  THE UNION NOT
ONLY NOW CONCEDES THAT THE DISPUTE AS TO WELSCH'S DISCHARGE WAS SUBJECT
TO FINAL AND BINDING ARBITRATION, BUT, INDEED, AFTER THE STRIKE, THE
DISPUTE WAS SO ARBITRATED. 

FN13  SEE LOCAL 25, TEAMSTERS UNION V. W.L. MEAD, INC., 230 F.2D 576,
583-584 (C.A. 1ST CIR.); UNITED CONSTRUCTION WORKERS V. HAISLIP BAKING
CO., 223 F.2D 872, 876-877 (C.A. 4TH CIR.); LABOR BOARD V. DORSEY
TRAILERS, INC., 179 F.2D 589, 592 (C.A. 5TH CIR.); LEWIS V. BENEDICT
COAL CORP., 259 F.2D 346, 351 (C.A. 6TH CIR.); LABOR BOARD V. SUNSET
MINERALS, 211 F.2D 224, 226 (C.A. 9TH CIR.). 

FN14  DECIDING THE CASE AS WE DO UPON THIS EXPLICIT GROUND, WE DO NOT
ADOPT THE REASONING OF THE WASHINGTON COURT.  INSOFAR AS THE LANGUAGE
OF THAT COURT'S OPINION IS SUSCEPTIBLE TO THE CONSTRUCTION THAT A
STRIKE DURING THE TERM OF A COLLECTIVE BARGAINING AGREEMENT IS IPSO
FACTO A VIOLATION OF THE AGREEMENT, WE EXPRESSLY REJECT IT. 

FN15  WITH RESPECT TO SUCH PROBLEMS, COMPARE UNITED MINE WORKERS V.
LABOR BOARD, 103 U.S. APP. D.C. 207, 257 F.2D 211, WITH LEWIS V.
BENEDICT COAL CORP., 259 F.2D 346 (AFFIRMED ON THIS QUESTION BY AN
EQUALLY DIVIDED COURT, 361 U.S. 459), FOR DIFFERING INTERPRETATIONS OF
AN IDENTICAL CONTRACT. 

MR. JUSTICE BLACK, DISSENTING. 

THE PETITIONER LOCAL UNION AND THE RESPONDENT COMPANY ENTERED INTO A
WRITTEN COLLECTIVE BARGAINING AGREEMENT CONTAINING AN EXPRESS PROVISION
FOR THE ARBITRATION OF DISPUTES GROWING OUT OF DIFFERENCES AS TO THE
PROPER APPLICATION OF THE AGREEMENT IN THE FOLLOWING TERMS: 

"SHOULD ANY DIFFERENCE ARISE BETWEEN THE EMPLOYER AND THE EMPLOYEE,
SAME SHALL BE SUBMITTED TO ARBITRATION BY BOTH PARTIES.  FAILING TO
AGREE, THEY SHALL MUTUALLY APPOINT A THIRD PERSON WHOSE DECISION SHALL
BE FINAL AND BINDING." 

THE COURT NOW FINDS - OUT OF CLEAR AIR, SO FAR AS I CAN SEE - THAT
THE UNION, WITHOUT SAYING SO IN THE AGREEMENT, NOT ONLY AGREED TO
ARBITRATE SUCH DIFFERENCES, BUT ALSO PROMISED THAT THERE WOULD BE NO
STRIKE WHILE ARBITRATION OF A DISPUTE WAS PENDING UNDER THIS
PROVISION.  AND ON THE BASIS OF ITS "DISCOVERY" OF THIS ADDITIONAL
UNWRITTEN PROMISE BY THE UNION, THE COURT UPHOLDS A JUDGMENT AWARDING
THE COMPANY SUBSTANTIAL DAMAGES FOR A STRIKE IN BREACH OF CONTRACT. 

THAT THE COURT'S DECISION ACTUALLY VACATES AND AMENDS THE CONTRACT
THAT THE PARTIES THEMSELVES HAD MADE AND SIGNED IS SHOWN, I THINK, BY
THE VERY FACE OF THAT ORIGINAL CONTRACT.  THE ARBITRATION PROVISION
COVERING DISPUTES GROWING OUT OF THE APPLICATION OF THE CONTRACT
IMMEDIATELY FOLLOWS ANOTHER QUITE DIFFERENT ARBITRATION PROVISION - ONE
COVERING DISPUTES "AS TO THE TRUE INTERPRETATION OF THIS AGREEMENT" IN
THE FOLLOWING TERMS: 

"SHOULD ANY DIFFERENCE AS TO THE TRUE INTERPRETATION OF THIS
AGREEMENT ARISE, SAME SHALL BE SUBMITTED TO A BOARD OF ARBITRATION OF
TWO MEMBERS, ONE REPRESENTING THE FIRM, AND ONE REPRESENTING THE
UNION.  IF SAID MEMBERS CANNOT AGREE, A THIRD MEMBER, WHO MUST BE A
DISINTERESTED PARTY SHALL BE SELECTED, AND THE DECISION OF THE SAID
BOARD OF ARBITRATION SHALL BE BINDING.  IT IS FURTHER AGREED BY BOTH
PARTIES HERETO THAT DURING SUCH ARBITRATION, THERE SHALL BE NO
SUSPENSION OF WORK." 

IN VIEW OF THE FACT THAT THIS LATTER PROVISION CONTAINS AN EXPLICIT
PROMISE BY THE UNION "THAT DURING SUCH ARBITRATION, THERE SHALL BE NO
SUSPENSION OF WORK," IT SEEMS TO ME PLAIN THAT THE PARTIES TO THIS
CONTRACT, KNOWING HOW TO WRITE A PROVISION BINDING A UNION NOT TO
STRIKE, DELIBERATELY INCLUDED A NO-STRIKE CLAUSE WITH REGARD TO
DISPUTES OVER BROAD QUESTIONS OF CONTRACTUAL INTERPRETATION AND
DELIBERATELY EXCLUDED SUCH A CLAUSE WITH REGARD TO THE ESSENTIALLY
FACTUAL DISPUTES ARISING OUT OF THE APPLICATION OF THE CONTRACT IN
PARTICULAR INSTANCES.  AND THERE IS NOT A WORD ANYWHERE ELSE IN THIS
AGREEMENT WHICH INDICATES THAT THIS PERFECTLY SENSIBLE CONTRACTUAL
FRAMEWORK FOR HANDLING THESE TWO DIFFERENT KINDS OF DISPUTES WAS NOT
INTENDED TO OPERATE IN THE PRECISE MANNER DICTATED BY THE EXPRESS
LANGUAGE OF THE TWO ARBITRATION PROVISIONS. 

THE DEFENSE OFFERED FOR THE COURT'S REWRITING OF THE CONTRACT WHICH
THE PARTIES THEMSELVES MADE IS THAT TO ALLOW THE PARTIES' OWN CONTRACT
TO STAND "WOULD OBVIOUSLY DO VIOLENCE TO ACCEPTED PRINCIPLES OF
TRADITIONAL CONTRACT LAW" AND "BE COMPLETELY AT ODDS WITH THE BASIC
POLICY OF NATIONAL LABOR LEGISLATION TO PROMOTE THE ARBITRAL PROCESS." 
I HAD SUPPOSED, HOWEVER - THOUGH EVIDENTLY THE COURT THINKS OTHERWISE -
THAT THE JOB OF COURTS ENFORCING CONTRACTS WAS TO GIVE LEGAL EFFECT TO
WHAT THE CONTRACTING PARTIES ACTUALLY AGREE TO DO, NOT TO WHAT COURTS
THINK THEY OUGHT TO DO.  IN ANY CASE, I HAVE BEEN UNABLE TO FIND ANY
ACCEPTED PRINCIPLE OF CONTRACT LAW - TRADITIONAL OR OTHERWISE - THAT
PERMITS COURTS TO CHANGE COMPLETELY THE NATURE OF A CONTRACT BY ADDING
NEW PROMISES THAT THE PARTIES THEMSELVES REFUSED TO MAKE IN ORDER THAT
THE NEW COURT-MADE CONTRACT MIGHT BETTER FIT INTO WHATEVER SOCIAL,
ECONOMIC, OR LEGAL POLICIES THE COURTS BELIEVE TO BE SO IMPORTANT THAT
THEY SHOULD HAVE BEEN TAKEN OUT OF THE REALM OF VOLUNTARY CONTRACT BY
THE LEGISLATIVE BODY AND FURTHERED BY COMPULSORY LEGISLATION. 

THE MERE FACT THAT THE DISPUTE WHICH BROUGHT ABOUT THIS STRIKE WAS
SUBJECT TO "FINAL AND BINDING" ARBITRATION UNDER THIS CONTRACT
CERTAINLY DOES NOT JUSTIFY THE CONCLUSION THAT THE UNION RELINQUISHED
ITS RIGHT TO STRIKE IN SUPPORT OF ITS POSITION ON THAT DISPUTE.  THE
ISSUE HERE INVOLVES, NOT THE NATURE OF THE ARBITRATION PROCEEDING, BUT
THE QUESTION OF WHETHER THE UNION, BY AGREEING TO ARBITRATE, HAS GIVEN
UP ALL OTHER SEPARATE AND DISTINCT METHODS OF GETTING ITS WAY.  SURELY,
NO ONE WOULD SUGGEST THAT A PROVISION FOR FINAL AND BINDING ARBITRATION
WOULD PRECLUDE A UNION FROM ATTEMPTING TO PERSUADE AN EMPLOYER TO
FOREGO ACTION THE UNION WAS AGAINST, EVEN WHERE THAT ACTION WAS FULLY
WITHIN THE EMPLOYER'S RIGHTS UNDER THE CONTRACT.  THE SAME PRINCIPLE
SUPPORTS THE RIGHT OF THE UNION TO STRIKE IN SUCH A SITUATION FOR
HISTORICALLY, AND AS WAS RECOGNIZED IN BOTH THE WAGNER AND TAFT-HARTLEY
ACTS, THE STRIKE HAS BEEN THE UNIONS' MOST IMPORTANT WEAPON OF
PERSUASION.  TO SAY THAT THE RIGHT TO STRIKE IS INCONSISTENT WITH THE
CONTRACTUAL DUTY TO ARBITRATE SOUNDS LIKE A DULL ECHO OF THE ARGUMENT
WHICH USED TO BE SO POPULAR THAT THE RIGHT TO STRIKE WAS INCONSISTENT
WITH THE CONTRACTUAL DUTY TO WORK - AN ARGUMENT WHICH FREQUENTLY WENT
SO FAR AS TO SAY THAT STRIKES ARE INCONSISTENT WITH BOTH THE COMMON LAW
AND THE CONSTITUTION.    THE ADDITIONAL BURDEN PLACED UPON THE UNION BY
THE COURT'S WRITING INTO THE AGREEMENT HERE A PROMISE NOT TO STRIKE IS
CERTAINLY NOT A MATTER OF MINOR INTEREST TO THIS EMPLOYER OR TO THE
UNION.  THE HISTORY OF INDUSTRIAL RELATIONS IN THIS COUNTRY EMPHASIZES
THE GREAT IMPORTANCE TO UNIONS OF THE RIGHT TO STRIKE AS WELL AS AN
UNDERSTANDABLE DESIRE ON THE PART OF EMPLOYERS TO AVOID SUCH WORK
STOPPAGES.  BOTH PARTIES TO COLLECTIVE BARGAINING DISCUSSIONS HAVE MUCH
AT STAKE AS TO WHETHER THERE WILL BE A NO-STRIKE CLAUSE IN ANY
RESULTING AGREEMENT.  IT IS DIFFICULT TO BELIEVE THAT THE DESIRE OF
EMPLOYERS TO GET SUCH A PROMISE AND THE DESIRE OF THE UNION TO AVOID
GIVING IT ARE MATTERS WHICH ARE NOT CONSTANTLY IN THE MINDS OF THOSE
WHO NEGOTIATE THESE CONTRACTS.  IN SUCH A SETTING, TO HOLD - ON THE
BASIS OF NO EVIDENCE WHATEVER - THAT A UNION, WITHOUT KNOWING IT,
IMPLIEDLY SURRENDERED THE RIGHT TO STRIKE BY VIRTUE OF "TRADITIONAL
CONTRACT LAW" OR ANYTHING ELSE IS TO ME JUST FICTION.  IT TOOK MORE
THAN 50 YEARS FOR UNIONS TO HAVE WRITTEN INTO FEDERAL LEGISLATION THE
PRINCIPLE THAT THEY HAVE A RIGHT TO STRIKE.  I CANNOT UNDERSTAND HOW
ANYONE FAMILIAR WITH THAT HISTORY CAN ALLOW THAT LEGISLATIVELY
RECOGNIZED RIGHT TO BE UNDERCUT ON THE BASIS OF THE ATTENUATED
IMPLICATIONS THE COURT USES HERE. 

I DO NOT MEAN TO SUGGEST THAT AN IMPLIED CONTRACTUAL PROMISE CANNOT
SOMETIMES BE FOUND WHERE THERE ARE FACTS AND CIRCUMSTANCES SUFFICIENT
TO WARRANT THE CONCLUSION THAT SUCH WAS THE INTENTION OF THE PARTIES. 
BUT THERE IS NO FACTUAL BASIS FOR SUCH A CONCLUSION IN THIS CASE AND
THE COURT DOES NOT EVEN CLAIM TO THE CONTRARY.  THE IMPLICATION OF A NO
STRIKE CLAUSE WHICH THE COURT PURPORTS TO FIND HERE - AN IMPLICATION
COMPLETELY AT WAR WITH THE LANGUAGE THE PARTIES USED IN MAKING THIS
CONTRACT AS WELL AS WITH THE NORMAL UNDERSTANDING OF THE NEGOTIATION
PROCESS BY WHICH SUCH CONTRACTS ARE MADE - HAS NOT BEEN SUPPORTED BY SO
MUCH AS ONE SCRAP OF EVIDENCE IN THIS RECORD.  THE IMPLICATION FOUND BY
THE COURT THUS FLOWS NEITHER FROM THE CONTRACT ITSELF NOR, SO FAR AS
THIS RECORD SHOWS, FROM THE INTENTION OF THE PARTIES.  IN MY JUDGMENT,
AN "IMPLICATION" OF THAT NATURE WOULD BETTER BE DESCRIBED AS A RIGID
RULE OF LAW THAT AN AGREEMENT TO ARBITRATE HAS PRECISELY THE SAME
EFFECT AS AN AGREEMENT NOT TO STRIKE - A RULE OF LAW WHICH INTRODUCES
REVOLUTIONARY DOCTRINE INTO THE FIELD OF COLLECTIVE BARGAINING. 

I AGREE THAT THE TAFT-HARTLEY ACT SHOWS A CONGRESSIONAL PURPOSE TO
TREAT COLLECTIVE BARGAINING CONTRACTS AND AGREEMENTS FOR ARBITRATION IN
THEM AS ONE IMPORTANT WAY OF INSURING STABILITY IN INDUSTRIAL
PRODUCTION AND LABOR RELATIONS.  BUT THE FACT THAT WE MAY AGREE, AS I
DO, THAT THESE SETTLEMENTS BY ARBITRATION ARE DESIRABLE IS NO EXCUSE
WHATEVER FOR IMPOSING SUCH "CONTRACTS," EITHER TO COMPEL ARBITRATION OR
TO FORBID STRIKING, UPON UNWILLING PARTIES.  THAT APPROACH IS CERTAINLY
CONTRARY TO THE INDUSTRIAL AND LABOR PHILOSOPHY OF THE TAFT-HARTLEY
ACT.  WHATEVER ELSE MAY BE SAID ABOUT THAT ACT, IT SEEMS PLAIN THAT IT
WAS ENACTED ON THE VIEW THAT THE BEST WAY TO BRING ABOUT INDUSTRIAL
PEACE WAS THROUGH VOLUNTARY, NOT COMPELLED, LABOR AGREEMENTS.  SECTION
301 IS TORN FROM ITS ROOTS WHEN IT IS HELD TO REQUIRE THE SORT OF
COMPULSORY ARBITRATION IMPOSED BY THIS DECISION.  I WOULD REVERSE THIS
CASE AND RELEGATE THIS CONTROVERSY TO THE FORUM IN WHICH IT BELONGS -
THE COLLECTIVE BARGAINING TABLE. 
..END :



















PUBLIC AFFAIRS ASSOCIATES, INC., TRADING AS PUBLIC AFFAIRS PRESS V.
RICKOVER 369 U.S. 111 


NO. 36.  ARGUED NOVEMBER 6-7, 1961 - DECIDED MARCH 5, 1962* - 109 U.S.
APP. D.C. 128, 284 F.2D 262, JUDGMENT VACATED AND CAUSE REMANDED. 

*TOGETHER WITH NO. 55, RICKOVER V. PUBLIC AFFAIRS ASSOCIATES, INC.,
TRADING AS PUBLIC AFFAIRS PRESS, ALSO ON CERTIORARI TO THE SAME COURT. 


IN THIS ACTION UNDER THE DECLARATORY JUDGMENT ACT FOR A DETERMINATION
OF THE RIGHTS OF VICE ADMIRAL RICKOVER WITH RESPECT TO HIS SPEECHES,
THE RECORD, CONSISTING MAINLY OF A SKETCHY AGREED STATEMENT OF FACTS,
IS NOT A SATISFACTORY BASIS FOR A DISCRETIONARY GRANT OF DECLARATORY
RELIEF RELATING TO CLAIMS TO INTELLECTUAL PROPERTY ARISING OUT OF
PUBLIC EMPLOYMENT.  PP. 111-114. 

PUBLIC AFFAIRS ASSOCIATES, INC., TRADING AS PUBLIC AFFAIRS PRESS, V.
RICKOVER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THESE TWO CASES AROSE UNDER THE DECLARATORY JUDGMENT ACT OF JUNE 14,
1934, 48 STAT. 955, AS AMENDED, NOW 28 U.S.C. (1958 ED.)  SECS.  2201
AND 2202.  THE PLAINTIFF, AN EDUCATIONAL PUBLISHING CORPORATION, ASKED
DEFENDANT, VICE ADMIRAL RICKOVER, FOR LEAVE TO PUBLISH, TO AN UNDEFINED
EXTENT, UNCOPYRIGHTED SPEECHES HE HAD THERETOFORE DELIVERED.  HE
REFUSED ON THE GROUND THAT WHAT HE CLAIMED TO BE EXCLUSIVE PUBLISHING
RIGHTS HAD BEEN SOLD TO ANOTHER PUBLISHER, AND HE GAVE NOTICE OF
COPYRIGHT ON SPEECHES SUBSEQUENT TO THE PLAINTIFF'S DEMAND.  SINCE THE
DEFENDANT THREATENED RESTRAINT OF PLAINTIFF'S USE OF HIS SPEECHES, THE
PLAINTIFF SOUGHT THIS DECLARATORY RELIEF.  THE DISTRICT COURT DISMISSED
THE COMPLAINT ON THE MERITS, 177 F. SUPP. 601.  THE COURT OF APPEALS
(ONE JUDGE DISSENTING), AGREEING WITH THE DISTRICT COURT THAT THE
DEFENDANT HAD, AS TO HIS UNCOPYRIGHTED SPEECHES, THE COMMON-LAW RIGHTS
OF AN AUTHOR, HELD THAT HE HAD FORFEITED HIS RIGHTS BY REASON OF THEIR
"PUBLICATION"; AS TO HIS COPYRIGHTED SPEECHES, THAT COURT REMANDED THE
CASE TO THE DISTRICT COURT FOR DETERMINATION OF THE EXTENT TO WHICH
"FAIR USE" WAS OPEN TO THE PLAINTIFF.  109 U.S. APP. D.C. 128, 284 F.2D
262.  BY PETITION FOR CERTIORARI AND CROSS-PETITION BOTH PARTIES SOUGHT
REVIEW AND BECAUSE SERIOUS PUBLIC QUESTIONS WERE IN ISSUE WE BROUGHT
THE CASES HERE.  365 U.S. 841. 

THE DECLARATORY JUDGMENT ACT WAS AN AUTHORIZATION, NOT A COMMAND.  IT
GAVE THE FEDERAL COURTS COMPETENCE TO MAKE A DECLARATION OF RIGHTS; IT
DID NOT IMPOSE A DUTY TO DO SO.  BRILLHART V. EXCESS INS. CO., 316 U.S.
491, 494, 499; GREAT LAKES CO. V. HUFFMAN, 319 U.S. 293, 299-300;
FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 462; MECHLING BARGE LINES
V. UNITED STATES, 368 U.S. 324, 331.  OF COURSE A DISTRICT COURT CANNOT
DECLINE TO ENTERTAIN SUCH AN ACTION AS A MATTER OF WHIM OR PERSONAL
DISINCLINATION.  "A DECLARATORY JUDGMENT, LIKE OTHER FORMS OF EQUITABLE
RELIEF, SHOULD BE GRANTED ONLY AS A MATTER OF JUDICIAL DISCRETION,
EXERCISED IN THE PUBLIC INTEREST."  ECCLES V. PEOPLES BANK, 333 U.S.
426, 431.  WE HAVE CAUTIONED AGAINST DECLARATORY JUDGMENTS ON ISSUES OF
PUBLIC MOMENT, EVEN FALLING SHORT OF CONSTITUTIONALITY, IN SPECULATIVE
SITUATIONS.  ECCLES V. PEOPLES BANK, SUPRA, AT 432. 

IN THESE CASES WE ARE ASKED TO DETERMINE MATTERS OF SERIOUS PUBLIC
CONCERN.  THEY RELATE TO CLAIMS TO INTELLECTUAL PROPERTY ARISING OUT OF
PUBLIC EMPLOYMENT.  THEY THUS RAISE QUESTIONS TOUCHING THE
RESPONSIBILITIES AND IMMUNITIES OF THOSE ENGAGED IN THE PUBLIC SERVICE,
PARTICULARLY HIGH OFFICERS, AND THE RIGHTFUL DEMANDS OF THE GOVERNMENT
AND THE PUBLIC UPON THOSE SERVING IT.  THESE ARE DELICATE PROBLEMS;
THEIR SOLUTION IS BOUND TO HAVE FAR-REACHING IMPORT.  ADJUDICATION OF
SUCH PROBLEMS, CERTAINLY BY WAY OF RESORT TO A DISRETIONARY DECLARATORY
JUDGMENT, SHOULD REST ON AN ADEQUATE AND FULL-BODIED RECORD.  THE
RECORD BEFORE US IS WOEFULLY LACKING IN THESE REQUIREMENTS. 

THE DECISIONS OF THE COURTS BELOW RESTED ON AN AGREED STATEMENT OF
FACTS WHICH SKETCHILY SUMMARIZED THE CIRCUMSTANCES OF THE PREPARATION
AND OF THE DELIVERY OF THE SPEECHES IN CONTROVERSY IN RELATION TO THE
VICE ADMIRAL'S OFFICIAL DUTIES.  THE NATURE AND SCOPE OF HIS DUTIES
WERE NOT CLEARLY DEFINED AND LESS THAN AN ADEQUATE EXPOSITION OF THE
USE BY HIM OF GOVERNMENT FACILITIES AND GOVERNMENT PERSONNEL IN THE
PREPARATION OF THESE SPEECHES WAS GIVEN.  ADMINISTRATIVE PRACTICE,
INSOFAR AS IT MAY RELEVANTLY SHED LIGHT, WAS NOT EXPLORED.  THE AGREED
STATEMENT OF FACTS WAS IN PART PHRASED, MODIFIED AND INTERPRETED IN THE
COURSE OF A RUNNING EXCHANGE BETWEEN TRIAL JUDGE AND COUNSEL.  THE
EXTENT OF THE AGREEMENT OF COUNSEL TO THE AGREED STATEMENT OF FACTS WAS
IN PART EXPLAINED IN THE COURSE OF ORAL ARGUMENT IN THE DISTRICT
COURT.  NONE OF THE UNDETAILED AND LOOSE, IF NOT AMBIGUOUS, STATEMENTS
IN THE AGREED STATEMENT OF FACTS WAS SUBJECT TO THE SAFEGUARDS OF
CRITICAL PROBING THROUGH EXAMINATION AND CROSS-EXAMINATION.  THIS IS
ALL THE MORE DISTURBING WHERE VITAL PUBLIC INTERESTS ARE IMPLICATED IN
A REQUESTED DECLARATION AND THE GOVERNMENT ASSERTED NO CLAIM (INDEED
OBLIQUELY MAY BE DEEMED NOT TO HAVE DISAPPROVED OF THE DEFENDANT'S
CLAIM) ALTHOUGH THE GOVERNMENT WAS INVITED TO APPEAR IN THE LITIGATION
AS AMICUS CURIAE AND CHOSE NOT TO DO SO.  SO FRAGILE A RECORD IS AN
UNSATISFACTORY BASIS ON WHICH TO ENTERTAIN THIS ACTION FOR DECLARATORY
RELIEF. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, WITH
DIRECTION TO RETURN THE CASE TO THE DISTRICT COURT FOR DISPOSITION NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IT IS CONCEDED THAT THE DECLARATORY JUDGMENT ACT IS AN AUTHORIZATION,
NOT A COMMAND - A CONCLUSION AS WELL SETTLED AS IS THE PROPOSITION THAT
THE JURISDICTION OF FEDERAL COURTS IS CONFINED TO "CASES" OR
"CONTROVERSIES."  AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227.  THE
REQUIREMENTS OF A "CASE" OR "CONTROVERSY" AND THE PROPRIETY OF THE USE
OF THE DECLARATORY JUDGMENT ARE AT TIMES CLOSELY ENMESHED.  IN
RESOLVING THOSE ISSUES THE COURT HAS ON THE WHOLE BEEN NIGGARDLY IN THE
EXERCISE OF ITS AUTHORITY.  THUS, IN DOREMUS V. BOARD OF EDUCATION, 342
U.S. 429, A TAXPAYER'S SUIT TO DECLARE THAT A PUBLIC SCHOOL SYSTEM
COULD NOT BE USED FOR RELIGIOUS INSTRUCTION WAS DISMISSED BECAUSE THERE
WAS NOT "THE REQUISITE FINANCIAL INTEREST."  ID., AT 435.  FROTHINGHAM
V. MELLON, 262 U.S. 447 - A DECISION WITH WHICH I HAVE GREAT DIFFICULTY
- WAS GIVEN NEW DIMENSIONS.  THAT CASE HELD THAT A TAXPAYER OF THE
UNITED STATES HAD NO STANDING TO CHALLENGE A FEDERAL APPROPRIATION,
SINCE THE QUESTION WAS ESSENTIALLY A MATTER OF PUBLIC, NOT PRIVATE
CONCERN.  (FN1)  ID., AT 487.  THIS RULING WAS PROJECTED INTO THE STATE
FIELD BY THE DOREMUS CASE, BARRING RELIEF TO THOSE LEGITIMATELY
CONCERNED WITH THE OPERATION OF THE PUBLIC SCHOOL SYSTEM. 

AT TIMES THE QUESTION OF THE "RIPENESS" OF AN ISSUE FOR JUDICIAL
REVIEW IS BRIGADED WITH THE APPROPRIATENESS OF DECLARATORY RELIEF.  IN
PUBLIC SERVICE COMM'N V. WYCOFF CO., 344 U.S. 237, 244, RELIEF WAS
DENIED THOUGH A CARRIER'S CERTIFICATE TO DO AN INTERSTATE BUSINESS WAS
PLACED IN JEOPARDY BY THREATENED STATE ACTION.  THAT PRINCIPLE WAS
EXTENDED IN ECCLES V. PEOPLES BANK, 333 U.S. 426, TO DENY RELIEF IN A
SITUATION COMPARABLE TO A SUIT TO REMOVE A CLOUD FROM ONE'S TITLE.  FOR
A BANK WAS BEING SADDLED WITH CONDITIONS BY THE FEDERAL RESERVE SYSTEM
THAT CRIPPLED ITS ACTIVITIES AND RESTRICTED THE MARKET FOR ITS STOCK. 
ON OTHER OCCASIONS, "MOOTNESS" HAS BEEN USED AS THE RUBRIC TO DENY
RELIEF THROUGH THE ROUTE OF A DECLARATORY JUDGMENT, EVEN THOUGH THE
LITIGANT WAS STILL INSECURE AND IN PERIL AS A RESULT OF ADMINISTRATIVE
ACTION.  MECHLING BARGE LINES V. UNITED STATES, 368 U.S. 324. 

AT OTHER TIMES THE ISSUE IS SAID TO BE "ABSTRACT" BECAUSE OF THE LACK
OF IMMEDIACY IN THE THREATENED ENFORCEMENT OF A LAW.  THUS, A PERSON
MUST RISK GOING TO JAIL OR LOSING HIS JOB TO GET RELIEF.  THAT WAS TRUE
IN POE V. ULLMAN, 367 U.S. 497, A CASE INVOLVING CONNECTICUT'S BIRTH
CONTROL LAW, AND IN UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75,
INVOLVING CIVIL SERVICE RULES RESTRICTING THE POLITICAL RIGHTS OF
FEDERAL EMPLOYEES. 

THE LIST IS NOT COMPLETE.  BUT THESE CASES ILLUSTRATE THE RESTRICTIVE
NATURE OF THE JUDGE-MADE RULES WHICH HAVE MADE THE FEDERAL COURTS SO
INHOSPITABLE TO LITIGATION TO VINDICATE PRIVATE RIGHTS.  AT NO TIME HAS
THE COURT BEEN WHOLLY CONSISTENT; NOR HAVE I. COMPARE CONNECTICUT INS.
CO. V. MOORE, 333 U.S. 541, 556 (DISSENTING OPINION), WITH WESTERN
UNION CO. V. PENNSYLVANIA, 368 U.S. 71.  BUT MY MATURING VIEW IS THAT
COURTS DO LAW AND JUSTICE A DISSERVICE WHEN THEY CLOSE THEIR DOORS TO
PEOPLE WHO, THOUGH NOT IN JAIL NOR YET PENALIZED, LIVE UNDER A REGIME
OF PERIL AND INSECURITY.  WHAT ARE COURTS FOR, IF NOT FOR REMOVING
CLOUDS ON TITLE, AS WELL AS ADJUDICATING THE RIGHTS OF THOSE AGAINST
WHOM THE LAW IS AIMED, THOUGH NOT IMMEDIATELY APPLIED? 

EVERS V. DWYER, 358 U.S. 202, IS ILLUSTRATIVE OF WHAT I DEEM TO BE
THE IMPORTANT ROLE SERVED BY THE DECLARATORY JUDGMENT.  A NEGRO WHO HAD
NOT BEEN ARRESTED FOR RIDING A SEGREGATED BUS BROUGHT A CLASS ACTION TO
HAVE HIS RIGHTS AND THOSE OF HIS CLASS ADJUDICATED.  WE HELD THERE WAS
AN "ACTUAL CONTROVERSY," BECAUSE IT WAS CLEAR THAT THE LOCAL
AUTHORITIES WERE BENT ON ENFORCING THE SEGREGATION LAW, THOUGH THEY HAD
NOT ENFORCED IT AGAINST THIS PLAINTIFF.  (FN2) 

THE OPINION OF THE COURT IN THIS CASE SEEMS TO SET DECLARATORY RELIEF
APART AS SUSPECT; IT LEAVES THE INNUENDO THAT IF THE CASE WERE HERE
UNDER A DIFFERENT COMPLAINT, THE RESULT MIGHT BE DIFFERENT.  I SHARE
NONE OF THESE DISPARAGING THOUGHTS.  I AGREE, HOWEVER, THAT NO MATTER
WHAT THE CAUSE OF ACTION MIGHT BE, THE PRESENT RECORD LEAVES GAPS WHICH
MAKE AN ADJUDICATION IMPOSSIBLE.  THE LACK OF EVIDENCE AS TO THE EXTENT
TO WHICH RICKOVER'S LITERARY WORKS WERE PRODUCTS OF HIS OFFICE IS FATAL
FOR ME, THOUGH, OF COURSE, IT WOULD NOT BE TO ONE WHO CONSIDERS THOSE
FACTS IRRELEVANT TO THE LEGAL ISSUE.  THE APPROACH WE TAKE TODAY HAS
OFTEN BEEN USED TO ABDICATE THE JUDICIAL FUNCTION UNDER RESOUNDING
UTTERANCES CONCERNING THE IMPORTANCE OF JUDICIAL SELF-DENIAL.  SEE,
E.G., UNITED STATES V. AUTO.  WORKERS, 352 U.S. 567, 590-592.  IT HAS
ALSO SERVED TO PLACE UNDUE EMPHASIS UPON THE CLARITY AND PRECISION OF
THE QUESTIONS PRESENTED, AS IN RESCUE ARMY V. MUNICIPAL COURT, 331 U.S.
549, WHERE THE COURT SUBJECTED THE APPELLANT "TO THE BURDEN OF
UNDERGOING A THIRD TRIAL" IN ORDER THAT THE ISSUES MIGHT BE IN A MORE
"CLEAN-CUT AND CONCRETE FORM."  ID., AT 584.  BUT ON THE PRESENT RECORD
I HAVE NO OTHER CHOICE, FOR WITHOUT ADDITIONAL FACTS I MUST WITHHOLD
DECISION. 

FN1  "BACK IN 1923, THE COURT WENT FURTHER AND HELD THAT THE MERE
FACT THAT A PERSON COULD SHOW HE PAID FEDERAL TAXES MADE NO DIFFERENCE
IN THIS RESPECT AND GAVE HIM NO STANDING TO CHALLENGE AN ACT OF
CONGRESS APPROPRIATING PUBLIC FUNDS.  THE COURT RECOGNIZED THAT AN
UNCONSTITUTIONAL SPENDING OF PUBLIC MONEY MIGHT CONCEIVABLY NECESSITATE
A RISE IN SUBSEQUENT TAX LEVIES.  NEVERTHELESS IT HELD THAT THE CAUSAL
CONNECTION BETWEEN ANY SPECIFIC EXPENDITURE AND FUTURE TAX RATES WOULD
BE TOO REMOTE AND UNCERTAIN TO CONSTITUTE AN IMMEDIATE PERSONAL INJURY
TO A TAXPAYER.  HENCE HE WOULD HAVE NO MORE TO COMPLAIN ABOUT THAN
OTHERS. 

"RULINGS OF THIS KIND, DESIGNED TO KEEP PEACE AMONG THE DEPARTMENTS
OF GOVERNMENT, ARE EMINENTLY SENSIBLE AS OVER-ALL POLICIES.  YET THEY
ALSO PROVIDE A WAY TO IMMUNIZE A BAD LAW FROM ATTACK IN THE COURTS:
ONE NEED ONLY FRAME THE LAW IN SUCH A WAY AS TO VIOLATE THE BASIC
RIGHTS OF NOBODY IN PARTICULAR BUT EVERYBODY IN GENERAL, THAT IS, OF
THE ENTIRE AMERICAN PEOPLE.  THEN, SINCE NO ONE CAN POINT TO AN INJURY
THAT IS DISTINGUISHABLE FROM HIS NEIGHBORS', NO ONE CAN COME INTO COURT
AND CHALLENGE THE LEGISLATION]"  EDMOND CAHN, HOW TO DESTROY THE
CHURCHES, HARPER'S MAGAZINE, NOV. 1961, P. 36. 

FN2  AND SEE MITCHELL V. UNITED STATES, 313 U.S. 80, WHERE WE HELD
THAT A NEGRO WHO FILED A COMPLAINT WITH THE INTERSTATE COMMERCE
COMMISSION AGAINST AN INTERSTATE CARRIER FOR DISCRIMINATING AGAINST HIM
HAD STANDING TO COMPLAIN, THOUGH IT DID NOT APPEAR THAT HE INTENDED TO
MAKE A SIMILAR RAILROAD JOURNEY: 

"HE IS AN AMERICAN CITIZEN FREE TO TRAVEL, AND HE IS ENTITLED TO GO
BY THIS PARTICULAR ROUTE WHENEVER HE CHOOSES TO TAKE IT AND IN THAT
EVENT TO HAVE FACILITIES FOR HIS JOURNEY WITHOUT ANY DISCRIMINATION
AGAINST HIM WHICH THE INTERSTATE COMMERCE ACT FORBIDS."  ID., AT 93. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE WHITTAKER CONCURS,
DISSENTING. 

WITH RESPECT TO THOSE OF ADMIRAL RICKOVER'S SPEECHES WRITTEN AND
DELIVERED PRIOR TO DECEMBER 1, 1958, I WOULD AFFIRM.  THE RECORD MADE
BELOW AND FILED HERE IS, I BELIEVE, ADEQUATE TO SUPPORT THE JUDGMENT OF
THE COURT OF APPEALS THAT THE ADMIRAL'S PRACTICE OF DISTRIBUTING
NUMEROUS COPIES OF HIS SPEECHES, WITHOUT LIMITATIONS AS TO THE PERSONS
WHO WOULD RECEIVE THEM OR THE PURPOSES TO WHICH THEY WOULD BE PUT BY
THE RECIPIENTS, AND WITHOUT SO MUCH AS A SUGGESTION OF A COPYRIGHT
CLAIM, AMOUNTED TO A DEDICATION OF THOSE WORKS TO THE PUBLIC DOMAIN. 
AT THE SAME TIME, I RECOGNIZE THE INADEQUACY OF THE PRESENT RECORD FOR
DETERMINING NOW WHETHER SPEECHES ON WHICH A COPYRIGHT NOTICE HAD BEEN
PLACED WERE EFFECTIVELY PROTECTED BY THAT NOTICE FROM OTHER THAN "FAIR
USE," AND WHETHER PUBLIC AFFAIRS INTENDED TO MAKE ONLY "FAIR USE" OF
THOSE WORKS.  I WOULD, THEREFORE, ALSO AFFIRM THE REMAND TO THE
DISTRICT COURT ORDERED BY THE COURT OF APPEALS AS TO SUCH SPEECHES. 

IN THE LIGHT OF THESE VIEWS, I FIND IT UNNECESSARY TO PASS NOW ON THE
QUESTIONS RAISED IN NO. 36, AND WOULD DISMISS THAT CASE AS PREMATURE. 

MR. JUSTICE HARLAN, DISSENTING. 

THE BASIC ISSUE WHICH BROUGHT THESE CASES HERE WAS WHETHER ADMIRAL
RICKOVER'S SPEECHES WERE COPYRIGHTABLE IN LIGHT OF THE FOLLOWING
PROVISION OF THE COPYRIGHT ACT:  "NO COPYRIGHT SHALL SUBSIST IN  ...
ANY PUBLICATION OF THE UNITED STATES GOVERNMENT."  (17 U.S.C. SEC. 8.) 
AS I SEE IT, DECISION OF THAT ISSUE TURNS NOT MERELY ON WHETHER SUCH
SPEECHES WERE MADE BY THE ADMIRAL IN THE "LINE OF DUTY," BUT ALSO, AND
IN MY VIEW MORE FUNDAMENTALLY, ON WHETHER SUCH SPEECHES WERE IN ANY
EVENT "PUBLICATIONS OF THE UNITED STATES GOVERNMENT."  IN MY OPINION
THE RECORD IS SUFFICIENT TO REQUIRE ADJUDICATION ON BOTH ASPECTS OF
THAT ISSUE, AND ON THIS PHASE OF THE CONTROVERSY I AGREE WITH THE
RESULT REACHED BY THE COURT OF APPEALS.  I ALSO AGREE WITH ITS
DETERMINATION AS TO THE ADEQUACY OF THE COPYRIGHT NOTICE AFFIXED TO
SPEECHES DELIVERED AFTER DECEMBER 1, 1958.    HOWEVER, I CONSIDER THE
RECORD INADEQUATE TO JUSTIFY ADJUDICATION AS TO WHETHER ADMIRAL
RICKOVER'S RIGHT TO COPYRIGHT WAS LOST WITH RESPECT TO SPEECHES
DELIVERED BEFORE DECEMBER 1, 1958, BY REASON OF THEIR ALLEGED ENTRY
INTO "THE PUBLIC DOMAIN."*  AS TO THAT ISSUE I WOULD VACATE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS.  IN ALL OTHER RESPECTS I WOULD AFFIRM
THE JUDGMENT BELOW. 

*THE STIPULATION STATES THAT WITH RESPECT TO 20 OF THE 22 SPEECHES
MADE BEFORE DECEMBER 1, 1958, "ADMIRAL RICKOVER MAILED SOME TO
INDIVIDUALS WHO HAD REQUESTED COPIES OR WHO ADMIRAL RICKOVER BELIEVED
WOULD BE INTERESTED IN THE SUBJECT.  SOME WERE SENT BY ADMIRAL RICKOVER
...  TO THE SPONSOR OF THE SPEECH TO BE MADE AVAILABLE TO THE PRESS
AND OTHERS AT THE PLACE WHERE THE SPEECH WAS TO BE DELIVERED."  IT
APPEARS FROM THE STIPULATION THAT NO FURTHER DISTRIBUTION OTHER THAN
FOR PRESS USE WAS EVER MADE.  WHETHER THE FOREGOING PUBLICATIONS WERE
GENERAL ENOUGH TO AMOUNT TO A DEDICATION TO THE PUBLIC OF ALL OR ANY OF
THESE SPEECHES DEPENDS ON MORE PRECISE INFORMATION THAN IS AFFORDED BY
THE STIPULATION. 
..END :




ILLINOIS CENTRAL RAILROAD CO. V. CITY OF SHIVELY 369 U.S. 120 


NO. 654.  DECIDED MARCH 5, 1962 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  349 S.W.2D 682. 


ILLINOIS CENTRAL RAILROAD CO. V. CITY OF SHIVELY. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















RICHARDS V. UNITED STATES 369 U.S. 1 


NO. 59.  ARGUED NOVEMBER 15, 1961 - DECIDED FEBRUARY 26, 1962 - 285 F.2D
521, AFFIRMED. 


PETITIONERS ARE THE PERSONAL REPRESENTATIVES OF PASSENGERS KILLED WHEN
A COMMERCIAL AIRPLANE CRASHED IN MISSOURI WHILE EN ROUTE FROM OKLAHOMA
TO NEW YORK.  THE MAXIMUM AMOUNT RECOVERABLE UNDER THE MISSOURI
WRONGFUL DEATH ACT HAD EITHER BEEN PAID OR TENDERED TO THEM BY THE
AIRLINE; BUT THEY SUED IN A FEDERAL DISTRICT COURT IN OKLAHOMA TO
RECOVER FROM THE UNITED STATES UNDER THE FEDERAL TORT CLAIMS ACT
ADDITIONAL AMOUNTS WHICH THEY CLAIMED TO BE DUE THEM UNDER THE OKLAHOMA
WRONGFUL DEATH ACT, WHICH CONTAINS NO LIMITATION ON THE AMOUNT A SINGLE
PERSON MAY RECOVER FROM A TORTFEASOR.   THEY CLAIMED THAT THE
GOVERNMENT, THROUGH THE FEDERAL AVIATION AGENCY, HAD NEGLIGENTLY FAILED
TO ENFORCE THE TERMS OF THE CIVIL AERONAUTICS ACT AND REGULATIONS
THEREUNDER WHICH PROHIBITED THE PRACTICES THEN BEING USED BY THE
AIRLINE IN ITS OVERHAUL DEPOT IN OKLAHOMA.  THE DISTRICT COURT
DISMISSED THE COMPLAINT AND THE COURT OF APPEALS AFFIRMED.  HELD: THE
JUDGMENT IS AFFIRMED.  PP. 2-16. 

(A)  IN THE TORT CLAIMS ACT, CONGRESS HAS ENACTED A RULE WHICH
REQUIRES FEDERAL COURTS, IN MULTISTATE TORT ACTIONS, TO LOOK IN THE
FIRST INSTANCE TO THE LAW OF THE STATE WHERE THE ACTS OF NEGLIGENCE
TOOK PLACE.  PP. 6-10. 

(B)  A READING OF THE STATUTE AS A WHOLE, WITH DUE REGARD TO ITS
PURPOSE, REQUIRES APPLICATION OF THE WHOLE LAW OF THE STATE WHERE THE
ACT OR OMISSION OCCURRED, INCLUDING ITS CHOICE-OF-LAWS RULES.  PP. 10
15. 

(C)  BOTH THE FEDERAL DISTRICT COURT IN OKLAHOMA AND THE COURT OF
APPEALS FOR THE TENTH CIRCUIT HAVE INTERPRETED THE PERTINENT OKLAHOMA
DECISIONS AS DECLARING THAT AN ACTION FOR WRONGFUL DEATH IS BASED ON
THE STATUTE OF THE PLACE WHERE THE INJURY OCCURRED THAT CAUSED THE
DEATH; THAT DETERMINATION OF THE QUESTION OF STATE LAW IS ACCEPTED BY
THIS COURT AND IS CONTROLLING HERE; THE MISSOURI STATUTE, THEREFORE,
CONTROLS THIS CASE; AND PETITIONERS HAVE FAILED TO STATE CLAIMS UPON
WHICH RELIEF COULD BE GRANTED.  PP. 15-16. 

RICHARDS ET AL. V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION TO BE DECIDED IN THIS CASE IS WHAT LAW A FEDERAL
DISTRICT COURT SHOULD APPLY IN AN ACTION BROUGHT UNDER THE FEDERAL TORT
CLAIMS ACT (FN1) WHERE AN ACT OF NEGLIGENCE OCCURS IN ONE STATE AND
RESULTS IN AN INJURY AND DEATH IN ANOTHER STATE.  THE BASIC PROVISION
OF THE TORT CLAIMS ACT STATES THAT THE GOVERNMENT SHALL BE LIABLE FOR
TORTIOUS CONDUCT COMMITTED BY ITS EMPLOYEES ACTING WITHIN THE SCOPE OF
THEIR 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."  (FN2)  THE
PARTIES URGE THAT THE ALTERNATIVES IN SELECTING THE LAW TO DETERMINE
LIABILITY UNDER THIS STATUTE ARE:  (1) THE INTERNAL LAW OF THE PLACE
WHERE THE NEGLIGENCE OCCURRED, OR (2) THE WHOLE LAW (INCLUDING CHOICE
OF-LAW RULES) OF THE PLACE WHERE THE NEGLIGENCE OCCURRED, OR (3) THE
INTERNAL LAW OF THE PLACE WHERE THE OPERATIVE PLACE. 

ALTHOUGH THE PARTICULAR FACTS OF THIS CASE ARE RELATIVELY UNIMPORTANT
IN DECIDING THE QUESTION BEFORE US, A BRIEF RECITATION OF THEM IS
NECESSARY TO SET THE CONTEXT FOR OUR DECISION.  THE PETITIONERS ARE THE
PERSONAL REPRESENTATIVES OF PASSENGERS KILLED WHEN AN AIRPLANE, OWNED
BY THE RESPONDENT AMERICAN AIRLINES, CRASHED IN MISSOURI WHILE EN ROUTE
FROM TULSA, OKLAHOMA, TO NEW YORK CITY.  SUIT WAS BROUGHT BY THE
PETITIONERS AGAINST THE UNITED STATES IN THE FEDERAL DISTRICT COURT FOR
THE NORTHERN DISTRICT OF OKLAHOMA, ON THE THEORY THAT THE GOVERNMENT,
THROUGH THE FEDERAL AVIATION AGENCY, HAD "NEGLIGENTLY FAILED TO ENFORCE
THE TERMS OF THE CIVIL AERONAUTICS ACT AND THE REGULATIONS THEREUNDER
WHICH PROHIBITED THE PRACTICES THEN BEING USED BY AMERICAN AIRLINES,
INC., IN THE OVERHAUL DEPOT OF TULSA, OKLAHOMA."  (FN3)  THE
PETITIONERS IN EACH CASE EITHER HAD ALREADY RECEIVED A $15,000
SETTLEMENT FROM THE AIRLINES, THE MAXIMUM AMOUNT RECOVERABLE UNDER THE
MISSOURI WRONGFUL DEATH ACT, (FN4) OR HAD BEEN TENDERED THAT AMOUNT. 
THEY SOUGHT ADDITIONAL AMOUNTS FROM THE UNITED STATES UNDER THE
OKLAHOMA WRONGFUL DEATH ACT (FN5) WHICH CONTAINS NO LIMITATION ON THE
AMOUNT A SINGLE PERSON MAY RECOVER FROM A TORTFEASOR.  THE GOVERNMENT
FILED A THIRD-PARTY COMPLAINT AGAINST AMERICAN AIRLINES, SEEKING
REIMBURSEMENT FOR ANY AMOUNT THAT THE PETITIONERS MIGHT RECOVER AGAINST
THE UNITED STATES. 

AFTER A PRETRIAL HEARING, THE DISTRICT COURT RULED THAT THE
COMPLAINTS FAILED TO STATE CLAIMS UPON WHICH RELIEF COULD BE GRANTED
UNDER THE OKLAHOMA ACT SINCE THAT STATUTE COULD NOT BE APPLIED
EXTRATERRITORIALLY "WHERE AN ACT OR OMISSION OCCURRING IN OKLAHOMA
RESULTS IN INJURY AND DEATH IN THE STATE OF MISSOURI."  (FN6)
ALTERNATIVELY, THE COURT NOTED THAT IF OKLAHOMA LAW WAS APPLICABLE
UNDER THE FEDERAL TORT CLAIMS ACT, "THEN THE GENERAL LAW OF OKLAHOMA,
INCLUDING ITS CONFLICTS OF LAW RULE, IS APPLICABLE THEREUNDER," THUS
PRECLUDING FURTHER RECOVERY SINCE THE OKLAHOMA CONFLICTS RULE WOULD
REFER THE COURT TO THE LAW OF MISSOURI, THE PLACE WHERE THE NEGLIGENCE
HAD ITS OPERATIVE EFFECT.  (FN7)  IN DISMISSING THE PETITIONERS'
COMPLAINTS AGAINST THE UNITED STATES, THE COURT FOUND IT UNNECESSARY TO
PASS UPON THE THIRD-PARTY COMPLAINT ASSERTED BY THE GOVERNMENT AGAINST
AMERICAN.  ON APPEAL, THE COURT OF APPEALS FOR THE TENTH CIRCUIT
AFFIRMED THE JUDGMENT BY A DIVIDED VOTE, (FN8) THE MAJORITY AGREEING
WITH THE LOWER COURT THAT THE COMPLAINTS FAILED TO STATE A CAUSE OF
ACTION UPON WHICH RELIEF COULD BE BASED UNDER EITHER THE OKLAHOMA OR
THE MISSOURI WRONGFUL DEATH ACT.  IN DISSENT, THE CHIEF JUDGE,
BELIEVING THAT CONGRESS INTENDED THE INTERNAL LAW OF THE PLACE WHERE
THE ACT OR OMISSION OCCURRED TO CONTROL THE RIGHTS AND LIABILITIES OF
THE PARTIES, STATED THAT HE THOUGHT IT WAS ERROR TO APPLY THE OKLAHOMA
CONFLICT-OF-LAWS RULE, AND WOULD HAVE REMANDED THE CASE FOR A
DETERMINATION OF LIABILITY UNDER THE OKLAHOMA ACT. 

THAT THE QUESTION CONFRONTING US IS AN IMPORTANT ONE AND OF A
RECURRING NATURE IS MADE APPARENT BY THE CONFLICTING VIEWS EXPRESSED IN
ITS SOLUTION BY THE LOWER FEDERAL COURTS.  IN THE FIVE CIRCUITS IN
WHICH IT HAS ARISEN, RESOLUTION OF THE QUESTION HAS BEEN REACHED BY
ADOPTION OF ONE OR ANOTHER OF THE ALTERNATIVES URGED UPON US BY THE
PARTIES TO THIS SUIT.  THE PETITIONERS' CONTENTION, THAT THE REFERENCE
IN SECTION 1346(B) TO THE "PLACE WHERE THE ACT OR OMISSION OCCURRED"
DIRECTS APPLICATION OF ONLY THE INTERNAL LAW OF THAT STATE - HERE,
OKLAHOMA - IS SUPPORTED BY THE SEVENTH CIRCUIT'S DECISION IN VOYTAS V.
UNITED STATES, 256 F.2D 786, AND BY THE DISTRICT OF COLUMBIA CIRCUIT IN
EASTERN AIR LINES V. UNION TRUST CO., 95 U.S. APP. D.C. 189, 221 F.2D
62, AS WELL AS BY THE DISSENTING JUDGE OF THE TENTH CIRCUIT IN THE
INSTANT CASE.  THE GOVERNMENT'S INTERPRETATION OF THE ACT, THAT IN
ORDER ALSO TO GIVE EFFECT TO SECTION 2674, (FN9) PROVIDING THAT THE
UNITED STATES SHALL BE LIABLE IN THE SAME MANNER AS A PRIVATE
INDIVIDUAL, A COURT MUST REFER TO THE WHOLE LAW OF THE STATE WHERE THE
ACT OR OMISSION OCCURRED, WAS ADHERED TO BY THE SECOND CIRCUIT IN
LANDON V. UNITED STATES, 197 F.2D 128, AS WELL AS BY THE TENTH CIRCUIT
IN THE CASE AT BAR.  AMERICAN AIRLINES, ALTHOUGH WILLING TO ABIDE BY
THE INTERPRETATION ADVANCED BY THE GOVERNMENT, SUGGESTS, AS AN
ALTERNATIVE, THAT THE INTERNAL LAW OF THE PLACE WHERE THE NEGLIGENCE
HAD ITS OPERATIVE EFFECT - HERE, MISSOURI - SHOULD CONTROL.  THIS
CONSTRUCTION OF THE ACT IS SUPPORTED BY THE NINTH CIRCUIT'S DECISION IN
UNITED STATES V. MARSHALL, 230 F.2D 183, AND BY THE DISSENTING OPINION
IN THE UNION TRUST CASE, SUPRA.  IT WAS TO RESOLVE THE THREEFOLD
CONFLICT AND TO ENUNCIATE A RULE THAT CAN BE APPLIED UNIFORMLY IN TORT
CLAIMS ACT CASES THAT WE GRANTED CERTIORARI.  366 U.S. 916. 

                           I. 

THE PRINCIPAL PROVISION OF THE FEDERAL TORT CLAIMS ACT, ORIGINALLY
ENACTED AS TITLE IV OF THE LEGISLATIVE REORGANIZATION ACT OF 1946,
(FN10) IS SECTION 1346(B), READING IN PERTINENT PART: 

"  ...  THE DISTRICT COURTS  ...  SHALL HAVE EXCLUSIVE JURISDICTION
OF CIVIL ACTIONS ON CLAIMS AGAINST THE UNITED STATES, FOR MONEY DAMAGES
...  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." 


"THE UNITED STATES SHALL BE LIABLE, RESPECTING  ...  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." 

THE TORT CLAIMS ACT WAS DESIGNED PRIMARILY TO REMOVE THE SOVEREIGN
IMMUNITY OF THE UNITED STATES FROM SUITS IN TORT AND, WITH CERTAIN
SPECIFIC EXCEPTIONS, TO RENDER THE GOVERNMENT LIABLE IN TORT AS A
PRIVATE INDIVIDUAL WOULD BE UNDER LIKE CIRCUMSTANCES.  (FN11)  IT IS
EVIDENT THAT THE ACT WAS NOT PATTERNED TO OPERATE WITH COMPLETE
INDEPENDENCE FROM THE PRINCIPLES OF LAW DEVELOPED IN THE COMMON LAW AND
REFINED BY STATUTE AND JUDICIAL DECISION IN THE VARIOUS STATES. 
RATHER, IT WAS DESIGNED TO BUILD UPON THE LEGAL RELATIONSHIPS
FORMULATED AND CHARACTERIZED BY THE STATES, AND, TO THAT EXTENT, THE
STATUTORY SCHEME IS EXEMPLARY OF THE GENERALLY INTERSTITIAL CHARACTER
OF FEDERAL LAW.  IF CONGRESS HAD MEANT TO ALTER OR SUPPLANT THE LEGAL
RELATIONSHIPS DEVELOPED BY THE STATES, IT COULD SPECIFICALLY HAVE DONE
SO TO FURTHER THE LIMITED OBJECTIVES OF THE TORT CLAIMS ACT.  THAT IS,
NOTWITHSTANDING THE GENERALLY INTERSTITIAL CHARACTER OF THE LAW,
CONGRESS, IN WAIVING THE IMMUNITY OF THE GOVERNMENT FOR TORTIOUS
CONDUCT OF ITS EMPLOYEES, COULD HAVE IMPOSED RESTRICTIONS AND
CONDITIONS ON THE EXTENT AND SUBSTANCE OF ITS LIABILITY.  (FN12)  WE
MUST DETERMINE WHETHER, AND TO WHAT EXTENT, CONGRESS EXERCISED THIS
POWER IN SELECTING A RULE FOR THE CHOICE OF LAWS TO BE APPLIED IN SUITS
BROUGHT UNDER THE ACT.  AND, BECAUSE THE ISSUE OF THE APPLICABLE LAW IS
CONTROLLED BY A FORMAL EXPRESSION OF THE WILL OF CONGRESS, WE NEED NOT
PAUSE TO CONSIDER THE QUESTION WHETHER THE CONFLICT-OF-LAWS RULE
APPLIED IN SUITS WHERE FEDERAL JURISDICTION RESTS UPON DIVERSITY OF
CITIZENSHIP SHALL BE EXTENDED TO A CASE SUCH AS THIS, IN WHICH
JURISDICTION IS BASED UPON A FEDERAL STATUTE.  (FN13)  IN ADDITION, AND
EVEN THOUGH CONGRESS HAS LEFT TO JUDICIAL IMPLICATION THE TASK OF
GIVING CONTENT TO ITS WILL IN SELECTING THE CONTROLLING LAW, BECAUSE OF
THE FORMAL EXPRESSION FOUND IN THE ACT ITSELF, WE ARE PRESENTED WITH A
SITUATION WHOLLY DISTINGUISHABLE FROM THOSE CASES IN WHICH OUR INITIAL
INQUIRY HAS BEEN WHETHER THE APPROPRIATE RULE SHOULD BE THE SIMPLE
ADOPTION OF STATE LAW.  (FN14)  HERE, WE MUST DECIDE, FIRST, TO WHICH
STATE THE WORDS "WHERE THE ACT OR OMISSION OCCURRED" DIRECT US, AND,
SECOND, WHETHER APPLICATION OF THE INTERNAL LAW OR THE WHOLE LAW OF
THAT STATE WOULD BE MOST CONSISTENT WITH THE LEGISLATIVE PURPOSE IN
ENACTING THE TORT CLAIMS ACT. 

                                       II. 

THE LEGISLATIVE HISTORY OF THE ACT, ALTHOUGH GENERALLY EXTENSIVE,
(FN15) IS NOT, EXCEPT IN A NEGATIVE WAY, HELPFUL IN SOLVING THE PROBLEM
OF THE LAW TO BE APPLIED IN A MULTISTATE TORT ACTION SUCH AS IS
PRESENTED BY THE FACTS OF THIS CASE.  IT HAS BEEN REPEATEDLY OBSERVED
THAT CONGRESS DID NOT CONSIDER CHOICE-OF-LAW PROBLEMS DURING THE LONG
PERIOD THAT THE LEGISLATION WAS BEING PREPARED FOR ENACTMENT.  (FN16)
THE CONCERN OF CONGRESS, AS ILLUSTRATED BY THE LEGISLATIVE HISTORY,
(FN17) WAS THE PROBLEM OF A PERSON INJURED BY AN EMPLOYEE OPERATING A
GOVERNMENT VEHICLE OR OTHERWISE ACTING WITHIN THE SCOPE OF HIS
EMPLOYMENT, SITUATIONS RARELY INVOLVING A CONFLICT-OF-LAWS QUESTION. 
(FN18)  IN THESE INSTANCES, WHERE THE NEGLIGENCE AND THE INJURY
NORMALLY OCCUR SIMULTANEOUSLY AND IN SINGLE JURISDICTION, THE LAW TO BE
APPLIED IS CLEAR, AND NO SOLUTION TO THE MEANING OF THE WORDS "THE LAW
OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED" IS REQUIRED.  HERE,
HOWEVER, WE ARE FACED WITH EVENTS TOUCHING MORE THAN ONE "PLACE" - A
PROBLEM WHICH CONGRESS APPARENTLY DID NOT EXPLICITLY CONSIDER - AND,
THUS, WE ARE COMPELLED TO GIVE CONTENT TO THOSE CRITICAL WORDS. 

IN THE TORT CLAIMS ACT CONGRESS HAS EXPRESSLY STATED THAT THE
GOVERNMENT'S LIABILITY IS TO BE DETERMINED BY THE APPLICATION OF A
PARTICULAR LAW, THE LAW OF THE PLACE WHERE THE ACT OR OMISSION
OCCURRED, (FN19) AND WE MUST, OF COURSE, START WITH THE ASSUMPTION THAT
THE LEGISLATIVE PURPOSE IS EXPRESSED BY THE ORDINARY MEANING OF THE
WORDS USED.  WE BELIEVE THAT IT WOULD BE DIFFICULT TO CONCEIVE OF ANY
MORE PRECISE LANGUAGE CONGRESS COULD HAVE USED TO COMMAND APPLICATION
OF THE LAW OF THE PLACE WHERE THE NEGLIGENCE OCCURRED THAN THE WORDS IT
DID EMPLOY IN THE TORT CLAIMS ACT.  THUS WE FIRST REJECT THE
ALTERNATIVE URGED BY AMERICAN AIRLINES.  THE LEGISLATIVE MATERIALS
CITED TO US BY AMERICAN (FN20) NOT ONLY LACK PROBATIVE FORCE IN A
JUDICIAL SENSE, BUT THEY ARE COMPLETELY UNPERSUASIVE TO SUPPORT THE
ARGUMENT THAT CONGRESS INTENDED THE WORDS "ACT OR OMISSION" TO REFER TO
THE PLACE WHERE THE NEGLIGENCE HAD ITS OPERATIVE EFFECT.  THE EASE OF
APPLICATION INHERENT IN THE RULE URGED BY AMERICAN LENDS A CERTAIN
ATTRACTIVENESS, BUT WE ARE BOUND TO OPERATE WITHIN THE FRAMEWORK OF THE
WORDS CHOSEN BY CONGRESS AND NOT TO QUESTION THE WISDOM OF THE LATTER
IN THE PROCESS OF CONSTRUCTION.  WE CONCLUDE THAT CONGRESS HAS, IN THE
TORT CLAIMS ACT, ENACTED A RULE WHICH REQUIRES FEDERAL COURTS, IN
MULTISTATE TORT ACTIONS, TO LOOK IN THE FIRST INSTANCE TO THE LAW OF
THE PLACE WHERE THE ACTS OF NEGLIGENCE TOOK PLACE. 

                                   III. 

HOWEVER, OUR TASK IS NOT COMPLETED.  HAVING REJECTED THE THIRD
ALTERNATIVE STATED INITIALLY AS INCONSISTENT WITH THE EXPRESS
TERMINOLOGY OF THE ACT, WE MUST NOW DETERMINE THE REACH OF THE WORDS
"LAW OF THE PLACE."  DO THEY EMBRACE THE WHOLE LAW OF THE PLACE WHERE
THE NEGLIGENCE OCCURRED, OR ONLY THE INTERNAL LAW OF THAT PLACE?  THIS
PROBLEM, UNLIKE THE INITIAL QUESTION DISCUSSED UNDER II, SUPRA, HAS NOT
BEEN DEALT WITH BY ANY FORMAL EXPRESSION OF CONGRESS AND WE MUST
THEREFORE ESTABLISH THE RULE TO BE APPLIED UNIFORMLY BY LOWER FEDERAL
COURTS, WITH DUE REGARD TO THE VARIANT INTERESTS AND POLICIES EXPRESSED
BY THE TORT CLAIMS ACT LEGISLATION. 

WE BELIEVE IT FUNDAMENTAL THAT A SECTION OF A STATUTE SHOULD NOT BE
READ IN ISOLATION FROM THE CONTEXT OF THE WHOLE ACT, (FN21) AND THAT IN
FULFILLING OUR RESPONSIBILITY IN INTERPRETING LEGISLATION, "WE MUST NOT
BE GUIDED BY A SINGLE SENTENCE OR MEMBER OF A SENTENCE, BUT SHOULD LOOK
TO THE PROVISIONS OF THE WHOLE LAW, AND TO ITS OBJECT AND POLICY." 
(FN22)  WE SHOULD NOT ASSUME THAT CONGRESS INTENDED TO SET THE COURTS
COMPLETELY ADRIFT FROM STATE LAW WITH REGARD TO QUESTIONS FOR WHICH IT
HAS NOT PROVIDED A SPECIFIC AND DEFINITE ANSWER IN AN ACT SUCH AS THE
ONE BEFORE US WHICH, AS WE HAVE INDICATED, IS SO INTIMATELY RELATED TO
STATE LAW.  THUS, WE CONCLUDE THAT A READING OF THE STATUTE AS A WHOLE,
WITH DUE REGARD TO ITS PURPOSE, REQUIRES APPLICATION OF THE WHOLE LAW
OF THE STATE WHERE THE ACT OR OMISSION OCCURRED.    WE ARE LED TO OUR
CONCLUSION BY OTHER PERSUASIVE FACTORS NOTWITHSTANDING THE FACT THAT
THE VERY CONFLICT AMONG THE LOWER FEDERAL COURTS THAT WE MUST HERE
RESOLVE ILLUSTRATES THE ALSO REASONABLE ALTERNATIVE VIEW EXPRESSED BY
THE PETITIONERS.  FIRST, OUR INTERPRETATION ENABLES THE FEDERAL COURTS
TO TREAT THE UNITED STATES AS A "PRIVATE INDIVIDUAL UNDER LIKE
CIRCUMSTANCES," AND THUS IS CONSISTENT WITH THE ACT CONSIDERED AS A
WHOLE.  (FN23)  THE GENERAL CONFLICT-OF-LAWS RULE, FOLLOWED BY A VAST
MAJORITY OF THE STATES, (FN24) IS TO APPLY THE LAW OF THE PLACE OF
INJURY TO THE SUBSTANTIVE RIGHTS OF THE PARTIES.  THEREFORE, WHERE THE
FORUM STATE IS THE SAME AS THE ONE IN WHICH THE ACT OR OMISSION
OCCURRED, OUR INTERPRETATION WILL ENABLE THE FEDERAL COURTS TO TREAT
THE UNITED STATES AS AN INDIVIDUAL WOULD BE TREATED UNDER LIKE
CIRCUMSTANCES.  (FN25)  MOREOVER, THIS INTERPRETATION OF THE ACT
PROVIDES A DEGREE OF FLEXIBILITY TO THE LAW TO BE APPLIED IN FEDERAL
COURTS THAT WOULD NOT BE POSSIBLE UNDER THE VIEW ADVANCED EITHER BY THE
PETITIONERS OR BY AMERICAN.  RECENTLY THERE HAS BEEN A TENDENCY ON THE
PART OF SOME STATES TO DEPART FROM THE GENERAL CONFLICTS RULE IN ORDER
TO TAKE INTO ACCOUNT THE INTERESTS OF THE STATE HAVING SIGNIFICANT
CONTACT WITH THE PARTIES TO THE LITIGATION.  (FN26)  WE CAN SEE NO
COMPELLING REASON TO SADDLE THE ACT WITH AN INTERPRETATION THAT WOULD
PREVENT THE FEDERAL COURTS FROM IMPLEMENTING THIS POLICY IN CHOICE-OF
LAW RULES WHERE THE STATE IN WHICH THE NEGLIGENCE OCCURRED HAS ADOPTED
IT.  SHOULD THE STATES CONTINUE THIS REJECTION OF THE OLDER RULE IN
THOSE SITUATIONS WHERE ITS APPLICATION MIGHT APPEAR INAPPROPRIATE OR
INEQUITABLE, (FN27) THE FLEXIBILITY INHERENT IN OUR INTERPRETATION WILL
ALSO BE MORE IN STEP WITH THAT JUDICIAL APPROACH, AS WELL AS WITH THE
CHARACTER OF THE LEGISLATION AND WITH THE PURPOSE OF THE ACT CONSIDERED
AS A WHOLE. 

IN THE ABSENCE OF PERSUASIVE EVIDENCE TO THE CONTRARY, WE DO NOT
BELIEVE THAT CONGRESS INTENDED TO ADOPT THE INFLEXIBLE RULE URGED UPON
US BY THE PETITIONERS.  DESPITE THE POWER OF CONGRESS TO ENACT FOR
LITIGATION OF THIS TYPE A FEDERAL CONFLICT-OF-LAWS RULE INDEPENDENT OF
THE STATES' DEVELOPMENT OF SUCH RULES, WE SHOULD NOT, PARTICULARLY IN
THE TYPE OF INTERSTITIAL LEGISLATION INVOLVED HERE, ASSUME THAT IT HAS
DONE SO.  NOR ARE WE PERSUADED TO REQUIRE SUCH AN INDEPENDENT FEDERAL
RULE BY THE PETITIONERS' ARGUMENT THAT THERE ARE OTHER INSTANCES,
SPECIFICALLY SET FORTH IN THE ACT, (FN28) WHERE THE LIABILITY OF THE
UNITED STATES IS NOT CO-EXTENSIVE WITH THAT OF A PRIVATE PERSON UNDER
STATE LAW.  IT SEEMS SUFFICIENT TO NOTE THAT CONGRESS HAS BEEN SPECIFIC
IN THOSE INSTANCES WHERE IT INTENDED THE FEDERAL COURTS TO DEPART
COMPLETELY FROM STATE LAW AND, ALSO, THAT THIS LIST OF EXCEPTIONS
CONTAINS NO DIRECT OR INDIRECT MODIFICATION OF THE PRINCIPLES
CONTROLLING APPLICATION OF CHOICE-OF-LAW RULES.  CERTAINLY THERE IS
NOTHING IN THE LEGISLATIVE HISTORY THAT EVEN REMOTELY SUPPORTS THE
ARGUMENT THAT CONGRESS DID NOT INTEND STATE CONFLICT RULES TO APPLY TO
MULTISTATE TORT ACTIONS BROUGHT AGAINST THE GOVERNMENT.  (FN29) 

UNDER OUR INTERPRETATION OF THE ACT WE FIND IT UNNECESSARY TO JUDGE
THE EFFECT OF THE OKLAHOMA COURTS' PRONOUNCEMENTS THAT THE OKLAHOMA
WRONGFUL DEATH ACT CANNOT BE GIVEN EXTRATERRITORIAL EFFECT.   (FN30)

                             IV. 

OUR VIEW OF A STATE'S POWER TO ADOPT AN APPROPRIATE CONFLICT-OF-LAWS
DOCTRINE IN A SITUATION TOUCHING MORE THAN ONE PLACE HAS BEEN INDICATED
BY OUR DISCUSSION IN PART III OF THIS OPINION.  (FN31)  WHERE MORE THAN
ONE STATE HAS SUFFICIENTLY SUBSTANTIAL CONTACT WITH THE ACTIVITY IN
QUESTION, THE FORUM STATE, BY ANALYSIS OF THE INTERESTS POSSESSED BY
THE STATES INVOLVED, COULD CONSTITUTIONALLY APPLY TO THE DECISION OF
THE CASE THE LAW OF ONE OR ANOTHER STATE HAVING SUCH AN INTEREST IN THE
MULTISTATE ACTIVITY.  (FN32)  THUS, AN OKLAHOMA STATE COURT WOULD BE
FREE TO APPLY EITHER ITS OWN LAW, THE LAW OF THE PLACE WHERE THE
NEGLIGENCE OCCURRED, OR THE LAW OF MISSOURI, THE LAW OF THE PLACE WHERE
THE INJURY OCCURRED, TO AN ACTION BROUGHT IN ITS COURTS AND INVOLVING
THIS FACTUAL SITUATION.  (FN33)  BOTH THE FEDERAL DISTRICT COURT
SITTING IN OKLAHOMA, AND THE COURT OF APPEALS FOR THE TENTH CIRCUIT,
HAVE INTERPRETED THE PERTINENT OKLAHOMA DECISIONS, (FN34) WHICH WE HAVE
HELD ARE CONTROLLING, TO DECLARE THAT AN ACTION FOR WRONGFUL DEATH IS
BASED ON THE STATUTE OF THE PLACE WHERE THE INJURY OCCURRED THAT CAUSED
THE DEATH.  (FN35)  THEREFORE, MISSOURI'S STATUTE CONTROLS THE CASE AT
BAR.  IT IS CONCEDED THAT EACH PETITIONER HAS RECEIVED $15,000, THE
MAXIMUM AMOUNT RECOVERABLE UNDER THE MISSOURI ACT, AND THE PETITIONERS
THUS HAVE RECEIVED FULL COMPENSATION FOR THEIR CLAIMS.  ACCORDINGLY,
THE COURTS BELOW WERE CORRECT IN HOLDING THAT, IN ACCORDANCE WITH
OKLAHOMA LAW, PETITIONERS HAD FAILED TO STATE CLAIMS UPON WHICH RELIEF
COULD BE GRANTED.  THE JUDGMENT IS AFFIRMED. 

FN1  THE PROVISIONS OF THE TORT CLAIMS ACT ARE NOW FOUND IN 28 U.S.C.
SECS. 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, AND 2671
2680. 

FN2  28 U.S.C. SEC. 1346(B). 

FN3  UNDER 72 STAT. 778, 49 U.S.C. SEC. 1425, THE ADMINISTRATOR OF
THE FEDERAL AVIATION AGENCY IS CHARGED WITH THE RESPONSIBILITY OF
ENFORCING RULES AND REGULATIONS CONTROLLING INSPECTION, MAINTENANCE,
OVERHAUL AND REPAIR OF ALL EQUIPMENT USED IN AIR TRANSPORTATION. 

FN4  MO. REV. STAT., 1949, SEC. 537.090.  SUBSEQUENT TO THE
ORIGINATION OF THESE ACTIONS THE MISSOURI CODE WAS AMENDED TO PROVIDE
FOR MAXIMUM DAMAGES OF $25,000.  MO. REV. STAT., 1959, SEC. 537.090. 

FN5  OKLA. STAT., 1951, TIT. 12, SECS. 1051-1054. 

FN6  THE OPINION OF THE DISTRICT COURT IS NOT REPORTED. 

FN7  GOCHENOUR V. ST. LOUIS-SAN FRANCISCO R. CO., 205 OKLA. 594, 239
P.2D 769. 

FN8  285 F.2D 521. 

FN9  28 U.S.C. SEC. 2674. 

FN10  60 STAT. 842 (1946). 

FN11  SEE FERES V. UNITED STATES, 340 U.S. 135, FOR A DETAILED
ANALYSIS OF THE PURPOSES OF THE FEDERAL TORT CLAIMS ACT IN THE CONTEXT
OF ITS LEGISLATIVE HISTORY. 

FN12  SORIANO V. UNITED STATES, 352 U.S. 270; UNITED STATES V.
SHERWOOD, 312 U.S. 584. 

FN13  KLAXON CO. V. STENTOR ELECTRIC MFG. CO., 313 U.S. 487.  SEE
VANSTON BONDHOLDERS PROTECTIVE COMMITTEE V. GREEN, 329 U.S. 156;
MCKENZIE V. IRVING TRUST CO., 323 U.S. 365; D'OENCH, DUHME & CO. V.
FEDERAL DEPOSIT INS. CORP., 315 U.S. 447. 

FN14  SEE, E.G., HOLMBERG V. ARMBRECHT, 327 U.S. 392; CLEARFIELD
TRUST CO. V. UNITED STATES, 318 U.S. 363; D'OENCH, DUHME & CO. V.
FEDERAL DEPOSIT INS. CORP., 315 U.S. 447; ROYAL INDEMNITY CO. V. UNITED
STATES, 313 U.S. 289; BOARD OF COMM'RS V. UNITED STATES, 308 U.S. 343. 
SEE ALSO DISCUSSION IN HART AND WECHSLER, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM, 679 ET SEQ. 

FN15  HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 5373
AND H.R. 6463, 77TH CONG., 2D SESS.; S. REP. NO. 1196, 77TH CONG., 2D
SESS.; H.R. REP. NO. 2245, 77TH CONG., 2D SESS.; NO. 1287, 79TH CONG.,
1ST SESS. 

FN16  SEE, E.G., 68 HARV. L. REV. 1455 (1955); 45 IOWA L. REV. 125
(1959); 6 N.Y.L.F. 484, 488-490 (1960). 

FN17  SEE H.R. REP. NO. 2428, 76TH CONG., 3D SESS. 3; HEARINGS ON
H.R. 5373 AND H.R. 6463, NOTE 15, SUPRA, 39, 66; HEARINGS BEFORE A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 7236, 76TH
CONG., 3D SESS. 7, 16; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY ON S. 2690, 76TH CONG., 3D SESS. 9; 69 CONG.
REC. 2192, 2193, 3118; 86 CONG. REC. 12024. 

FN18  SEE, E.G., KNECHT V. UNITED STATES, 242 F.2D 929; IRISH V.
UNITED STATES, 225 F.2D 3; UNITED STATES V. PRAYLOU, 208 F.2D 291;
SOMERSET SEAFOOD CO. V. UNITED STATES, 193 F.2D 631; D'ANNA V. UNITED
STATES, 181 F.2D 335; OLSON V. UNITED STATES, 175 F.2D 510; MODLA V.
UNITED STATES, 151 F. SUPP. 198; IRVIN V. UNITED STATES, 148 F. SUPP.
25. 

FN19  28 U.S.C. SEC. 1346(B). 

FN20  HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 5373
AND H.R. 6463, 77TH CONG., 2D SESS. 9, 30.  AMERICAN SUGGESTS THAT
SUPPORT FOR ITS ARGUMENT IS FOUND IN THE TESTIMONY OF MR. FRANCIS SHEA,
THEN ASSISTANT ATTORNEY GENERAL OF THE UNITED STATES, BEFORE THE HOUSE
COMMITTEE ON THE JUDICIARY, WHO STATED, WHEN ASKED WHERE A CLAIMANT
MIGHT BRING SUIT UNDER THE ACT, THAT THE VENUE PROVISION ALLOWED SUIT
TO BE BROUGHT EITHER WHERE THE CLAIMANT RESIDES OR WHERE THE INJURY
TOOK PLACE.  BECAUSE THE VENUE PROVISION OF THE ACT ALSO CONTAINS THE
WORDS "WHEREIN THE ACT OR OMISSION COMPLAINED OF OCCURRED" (28 U.S.C.
SEC. 1402(B)), AMERICAN CONTENDS THAT THE REFERENCE TO THE PLACE WHERE
THE INJURY OCCURRED SHOULD CONTROL THE MEANING OF THE "ACT OR OMISSION"
LANGUAGE IN SECTION 1346(B).  IN ADDITION TO THE FACT THAT THIS
TESTIMONY BEARS NO RELATION TO THE CHOICE-OF-LAWS PROBLEMS, AND THAT
CONSIDERATIONS UNDERLYING THE PROBLEM OF VENUE ARE SUBSTANTIALLY
DIFFERENT FROM THOSE DETERMINING APPLICABLE LAW, WE ARE NOT PERSUADED
TO ALLOW AN ISOLATED PIECE OF LEGISLATIVE HISTORY TO DETRACT FROM THE
ACT THE WORDS CONGRESS EXPRESSLY EMPLOYED. 

FN21  LABOR BOARD V. LION OIL CO., 352 U.S. 282, 288; CHEROKEE
INTERMARRIAGE CASES, 203 U.S. 76, 89; PANAMA REFINING CO. V. RYAN, 293
U.S. 388, 439 (CARDOZO, J., DISSENTING). 

FN22  MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270, 285,
QUOTING FROM UNITED STATES V. BOISDORE'S HEIRS, 8 HOW.  113, 122. 

FN23  28 U.S.C. SEC. 2674, QUOTED IN THE TEXT, SUPRA, AS WELL AS 28
U.S.C. SEC. 1346(B), PROVIDES THAT THE UNITED STATES SHOULD BE TREATED
AS AN INDIVIDUAL DEFENDANT WOULD BE UNDER LIKE CIRCUMSTANCES. 

FN24  RESTATEMENT, CONFLICT OF LAWS, SECS. 377, 378 AND 391.  THIS
RULE HAS BEEN REPEATED SO FREQUENTLY THAT A CITATION OF CASES HERE
WOULD SERVE NO PURPOSE.  FOR A COLLECTION OF CASES, SEE GOODRICH,
CONFLICT OF LAWS, 263-264; STUMBERG, CONFLICT OF LAWS, 182-187; 25
C.J.S. DEATH SEC. 28, NN. 27-30. 

FN25  FOR EXAMPLE, HAD THE PETITIONERS IN THE INSTANT CASE BROUGHT
SUIT AGAINST AMERICAN AS WELL AS THE UNITED STATES, THE PETITIONERS'
INTERPRETATION OF THE ACT WOULD HAVE THE DISTRICT COURT DETERMINE
AMERICAN'S LIABILITY BY THE LAW OF MISSOURI AND THE UNITED STATES' BY
THE LAW OF OKLAHOMA.   UNDER OUR CONSTRUCTION OF THE ACT, HOWEVER, BOTH
DEFENDANTS' LIABILITY WOULD BE DETERMINED BY THE LAW OF MISSOURI. 
HOWEVER, BECAUSE OF THE VENUE PROVISION IN THE STATUTE, ALLOWING SUIT
TO BE BROUGHT WHERE ALL THE PLAINTIFFS RESIDE AS WELL AS WHERE THE ACT
OR OMISSION OCCURRED (28 U.S.C. SEC. 1402(B); SEE KNECHT V. UNITED
STATES, 242 F.2D 929; OLSON V. UNITED STATES, 175 F.2D 510), A
SITUATION MAY ARISE WHERE A DISTRICT COURT COULD NOT DETERMINE THE
GOVERNMENT'S AND A PRIVATE INDIVIDUAL'S LIABILITY IN EXACTLY THE SAME
MANNER. 

FN26  GRANT V. MCAULIFFE, 41 CAL. 2D 859, 264 P.2D 944; SCHMIDT V.
DRISCOLL HOTEL, INC., 249 MINN. 376, 82 N.W.2D 365; HAUMSCHILD V.
CONTINENTAL CASUALTY CO., 7 WIS. 2D 130, 95 N.W.2D 814.  SEE CURRIE,
SURVIVAL OF ACTIONS:  ADJUDICATION VERSUS AUTOMATION IN THE CONFLICT OF
LAWS, 10 STAN.  L. REV. 205 (1958).  CF. VROOMAN V. BEECH AIRCRAFT
CORP., 183 F.2D 479; LEVY V. DANIELS' U-DRIVE AUTO RENTING CO., 108
CONN. 333, 143 A. 163; CALDWELL V. GORE, 175 LA. 501, 143 SO. 387;
BURKETT V. GLOBE INDEMNITY CO., 182 MISS.  423, 181 SO. 316. 

FN27  IN ADDITION TO THE CASES CITED IN NOTE 26, SUPRA, SEE THE
OPINION BY MR. JUSTICE BLACK IN VANSTON BONDHOLDERS PROTECTIVE
COMMITTEE V. GREEN, 329 U.S. 156, 161-162, WHERE IT IS STATED IN
CONTEXT TO A DIFFERENT BUT ANALOGOUS PROBLEM: 

"IN DETERMINING WHICH CONTACT IS THE MOST SIGNIFICANT IN A PARTICULAR
TRANSACTION, COURTS CAN SELDOM FIND A COMPLETE SOLUTION IN THE
MECHANICAL FORMULAE OF THE CONFLICTS OF LAW.  DETERMINATION REQUIRES
THE EXERCISE OF AN INFORMED JUDGMENT IN THE BALANCING OF ALL THE
INTERESTS OF THE STATES WITH THE MOST SIGNIFICANT CONTACTS IN ORDER
BEST TO ACCOMMODATE THE EQUITIES AMONG THE PARTIES TO THE POLICIES OF
THOSE STATES." 

FN28  THE ACT PERMITS CLAIMANTS TO SUE ONLY IN THE FEDERAL COURTS,
AND NOT IN THE STATE COURTS WHICH ARE AVAILABLE IN ACTIONS AGAINST A
PRIVATE INDIVIDUAL, SEC. 1346(B); THE ACT PRESCRIBES ITS OWN PERIOD OF
LIMITATIONS WHICH MAY BE SHORTER OR LONGER THAN THAT OF THE STATE, SEC.
2401(B); THE CLAIMANT CANNOT OBTAIN A TRIAL BY JURY UNDER THE ACT,
ALTHOUGH HE COULD AGAINST A PRIVATE INDIVIDUAL, SEC. 2402; THE CLAIMANT
CANNOT OBTAIN INTEREST PRIOR TO JUDGMENT IN SUITS UNDER THE ACT
REGARDLESS OF THE STATE RULE GOVERNING PRIVATE INDIVIDUALS, SEC. 2674;
THE CLAIMANT CANNOT OBTAIN PUNITIVE DAMAGES UNDER THE ACT, EVEN THOUGH
STATE LAW MAY PROVIDE FOR IT AS AGAINST A PRIVATE DEFENDANT, SEC. 2674;
THE CLAIMANT CANNOT RECOVER ANY DAMAGES AGAINST THE UNITED STATES ON
ANY CLAIM ARISING OUT OF ASSAULT, BATTERY, FALSE IMPRISONMENT, FALSE
ARREST, MALICIOUS PROSECUTION, ABUSE OF PROCESS, LIBEL, SLANDER,
MISREPRESENTATION, DECEIT, OR INTERFERENCE WITH CONTRACT RIGHTS,
WHEREAS HE COULD RECOVER SUCH DAMAGES AGAINST A PRIVATE INDIVIDUAL,
SEC. 2680(H); THE CLAIMANT CANNOT OBTAIN ANY RECOVERY AGAINST THE
UNITED STATES ON A CLAIM ARISING IN A FOREIGN COUNTRY, ALTHOUGH HE
COULD AGAINST A PRIVATE INDIVIDUAL, SEC. 2680(K); AND THE ACT EXEMPTS
THE GOVERNMENT FROM LIABILITY FOR CLAIMS BASED ON VARIOUS TYPES OF
ACTIVITIES, ALTHOUGH A PRIVATE INDIVIDUAL WOULD BE LIABLE IN THE SAME
CIRCUMSTANCES, SEC. 2680. 

FN29  IN FACT, DESPITE THE AMBIGUITY THAT EXISTS IN THE HISTORY DUE
TO THE FACT THAT CONGRESS DID NOT SPECIFICALLY CONSIDER THE CHOICE-OF
LAWS PROBLEM, THE LEGISLATIVE MATERIAL INDICATES THAT CONGRESS THOUGHT
IN TERMS OF STATE LAW BEING APPLICABLE.  THE TERM "LAW OF THE PLACE
WHERE THE ACT OR OMISSION OCCURRED" WAS PARTICULARIZED AS (1) THE LAW
OF THE SITUS OF THE WRONGFUL ACT OR OMISSION.  HEARINGS BEFORE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 5373 AND H.R. 6463, 77TH CONG., 2D
SESS. 35; (2) LOCAL LAW, ID., AT 26, 27, 30, 59 AND 61; S. REP. NO.
1196, 77TH CONG., 2D SESS. 6; H.R. REP. NO. 2245, 77TH CONG., 2D SESS.
9; H.R. REP. NO. 1287, 79TH CONG., 1ST SESS. 4; S. REP. NO. 1400, 79TH
CONG., 2D SESS. 32; (3) LOCAL TORT LAW.  HEARINGS BEFORE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 5373 AND H.R. 6463, 77TH CONG., 2D
SESS. 30; (4) THE LAW OF THE SITUS OF THE ALLEGED TORT.  HEARINGS
BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY ON S.
2690, 76TH CONG., 3D SESS. 44; AND (5) THE LOCALE OF THE INJURY OR
DAMAGE.  HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R.
5373 AND H.R. 6463, 77TH CONG., 2D SESS. 9. 

FN30  GOCHENOUR V. ST. LOUIS-SAN FRANCISCO R. CO., 205 OKLA. 594, 239
P.2D 769.  SEE FENTON V. SINCLAIR REFINING CO., 206 OKLA. 19, 240 P.2D
748. 

FN31  SUPRA, PP. 12-13 AND CASES CITED.  SEE ALSO CARROLL V. LANZA,
349 U.S. 408; WATSON V. EMPLOYERS LIABILITY CORP., 348 U.S. 66; PACIFIC
EMPLOYERS INS. CO. V. INDUSTRIAL ACCIDENT COMM'N, 306 U.S. 493.  CF.
HARTFORD ACCIDENT & INDEMNITY CO. V. DELTA & PINE LAND CO., 292 U.S.
143; HOME INSURANCE CO. V. DICK, 281 U.S. 397. 

FN32  SEE, E.G., THE CASES CITED IN NOTE 26, SUPRA. 

FN33  ALABAMA G.S.R. CO. V. CARROLL, 97 ALA. 126, 11 SO. 803; OTEY V.
MIDLAND VALLEY R. CO., 108 KAN. 755, 197 P. 203; CONNECTICUT VALLEY
LUMBER CO. V. MAINE CENTRAL R. CO., 78 N.H. 553, 103 A. 263; EL PASO &
N.W.R. CO. V. MCCOMUS, 36 TEX. CIV. APP. 170, 81 S.W. 760 (HOLDING THAT
THE LAW OF THE PLACE OF INJURY CONTROLS) AND SCHMIDT V. DRISCOLL HOTEL,
INC., 249 MINN. 376, 82 N.W.2D 365 (HOLDING THAT THE LAW OF THE PLACE
OF NEGLIGENCE CONTROLS).  SEE ALSO HUNTER V. DERBY FOODS, 110 F.2D 970;
35 COL. L. REV. 202. 

FN34  GOCHENOUR V. ST. LOUIS-SAN FRANCISCO R. CO., 205 OKLA. 594, 239
P.2D 769; MILLER V. TENNIS, 140 OKLA. 185, 282 P. 345.  SEE FENTON V.
SINCLAIR REFINING CO., 206 OKLA. 19, 240 P.2D 748. 

FN35  WE ARE AWARE THAT IN THE OKLAHOMA CASES CITED IN NOTE 34,
SUPRA, BOTH THE INJURY AND NEGLIGENCE OCCURRED IN THE SAME SISTER
STATE, AND THAT THE TWO COURTS BELOW RELIED LARGELY ON DICTUM IN THOSE
CASES TO CONCLUDE THAT OKLAHOMA WOULD FOLLOW THE GENERAL RULE THAT THE
LAW OF THE PLACE OF INJURY WOULD CONTROL EVEN HAD THE NEGLIGENCE THAT
CAUSED THE INJURY TAKEN PLACE IN OKLAHOMA.  THE PETITIONERS HERE DO NOT
CONTEND THAT THIS WAS AN ERRONEOUS INTERPRETATION OF STATE LAW.  WE
ORDINARILY ACCEPT THE DETERMINATIONS OF COURTS OF APPEALS ON QUESTIONS
OF STATE LAW AND DO SO HERE UNDER THE CIRCUMSTANCES PRESENTED.  GENERAL
BOX CO. V. UNITED STATES, 351 U.S. 159, 165; ESTATE OF SPIEGEL V.
COMMISSIONER, 335 U.S. 701, 707-708; HUDDLESTON V. DWYER, 322 U.S. 232,
237. 
..END :





















RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL UNIONS NOS. 128 AND 633
V. LION DRY GOODS 369 U.S. 17  


NO. 73.  ARGUED JANUARY 17, 1962 - DECIDED FEBRUARY 26, 1962 - 286 F.2D
235, REVERSED. 


1.  SECTION 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, WHICH
CONFERS ON FEDERAL DISTRICT COURTS JURISDICTION OVER SUITS "FOR
VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION
REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING" INTERSTATE COMMERCE,
APPLIES TO A SUIT TO ENFORCE A STRIKE SETTLEMENT AGREEMENT BETWEEN AN
EMPLOYER IN AN INDUSTRY AFFECTING INTERSTATE COMMERCE AND LOCAL LABOR
UNIONS REPRESENTING SOME, BUT NOT A MAJORITY, OF ITS EMPLOYEES.  PP. 18
30. 

(A)  THE TERM "CONTRACTS," AS USED IN SEC. 301(A), IS NOT LIMITED TO
COLLECTIVE BARGAINING AGREEMENTS CONCERNING HOURS, WAGES AND CONDITIONS
OF EMPLOYMENT CONCLUDED IN DIRECT NEGOTIATIONS BETWEEN EMPLOYERS AND
UNIONS ENTITLED TO RECOGNITION AS EXCLUSIVE BARGAINING REPRESENTATIVES
OF EMPLOYEES; IT APPLIES ALSO TO AGREEMENTS, SUCH AS THAT INVOLVED
HERE, BETWEEN EMPLOYERS AND LABOR ORGANIZATIONS WHICH IMPORTANTLY AND
DIRECTLY AFFECT THE EMPLOYMENT RELATIONSHIP.  PP. 23-28. 

(B)  THE TERM "LABOR ORGANIZATION REPRESENTING EMPLOYEES," AS USED IN
SEC. 301(A), IS NOT LIMITED TO LABOR ORGANIZATIONS WHICH ARE ENTITLED
TO RECOGNITION AS EXCLUSIVE BARGAINING AGENTS OF EMPLOYEES.  PP. 28
29. 

2.  THIS CAUSE IS NOT RENDERED MOOT BY THE FACT THAT THE LOCAL UNIONS
WHICH COMMENCED THIS LITIGATION HAVE SINCE MERGED WITH ANOTHER LOCAL
UNION TO FORM A NEW LOCAL UNION OF THE SAME INTERNATIONAL UNION, AND
PETITIONERS' MOTION TO ADD THE NEW LOCAL UNION AS A PARTY IS GRANTED. 
P. 19, N. 2. 

RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL UNIONS NOS. 128 AND 633,
V. LION DRY GOODS, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THAT "SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE
AS DEFINED IN THIS CHAPTER, OR BETWEEN ANY SUCH LABOR ORGANIZATIONS,
MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED STATES HAVING
JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE AMOUNT IN
CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE PARTIES."  THE
QUESTIONS PRESENTED IN THIS CASE ARE:  (1) DOES THE SCOPE OF
"CONTRACTS" WITHIN SEC. 301(A) INCLUDE THE AGREEMENT AT BAR, CLAIMED TO
BE NOT A "COLLECTIVE BARGAINING CONTRACT" BUT A "STRIKE SETTLEMENT
AGREEMENT"?  (2) IF OTHERWISE INCLUDIBLE, IS THE "STRIKE SETTLEMENT
AGREEMENT" COGNIZABLE UNDER SEC. 301(A), ALTHOUGH THE PETITIONERS, THE
LABOR-ORGANIZATION PARTIES TO THE AGREEMENT, ACKNOWLEDGED THAT THEY
WERE NOT ENTITLED TO RECOGNITION AS EXCLUSIVE REPRESENTATIVES OF THE
EMPLOYEES OF THE RESPONDENTS? 

THE OPINIONS BELOW APPEAR TO REST UPON ALTERNATIVE HOLDINGS,
ANSWERING IN THE NEGATIVE EACH OF THESE QUESTIONS.  THE DISTRICT
COURT'S CONCLUSION THAT IT LACKED JURISDICTION OVER THE SUBJECT MATTER,
179 F. SUPP. 564, WAS AFFIRMED IN A BRIEF PER CURIAM BY THE COURT OF
APPEALS, SAYING:  "THE CONTRACT HERE INVOLVED IS NOT A COLLECTIVE
BARGAINING AGREEMENT BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION
REPRESENTING ITS EMPLOYEES.  WE THINK THAT THE TRIAL COURT WAS CORRECT
IN REACHING THE CONCLUSION THAT COLLECTIVE BARGAINING CONTRACTS BETWEEN
A UNION AND AN EMPLOYER ARE THE ONLY CONTRACTS INTENDED TO BE
ACTIONABLE IN A UNITED STATES DISTRICT COURT UNDER THE PROVISIONS OF
IMPORTANCE OF THE QUESTIONS TO THE ENFORCEMENT OF THE NATIONAL LABOR
POLICY AS EXPRESSED IN SEC. 301(A).  366 U.S. 917.  WE HOLD THAT THE
LOWER COURTS ERRED AND REMAND THE CAUSE FOR TRIAL AND FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  (FN2) 

THE PETITIONERS, LOCAL UNIONS OF THE RETAIL CLERKS INTERNATIONAL
ASSOCIATION, BROUGHT THIS ACTION ON THE SOLE JURISDICTIONAL BASIS OF
SEC. 301(A) AND (B), SEEKING TO COMPEL RESPONDENTS' COMPLIANCE WITH TWO
ALLEGEDLY BINDING ARBITRATION AWARDS.  RESPONDENTS ARE TWO DEPARTMENT
STORES IN TOLEDO, OHIO, COVERED BY THE LABOR MANAGEMENT RELATIONS ACT. 
FOR SOME YEARS PRIOR TO 1957, PETITIONERS HAD BEEN THE COLLECTIVE
BARGAINING REPRESENTATIVES OF RESPONDENTS' EMPLOYEES AND HAD BEEN
PARTIES TO COLLECTIVE BARGAINING AGREEMENTS WITH RESPONDENTS.  IN
NOVEMBER 1957, NEGOTIATIONS FOR RENEWAL CONTRACTS ENDED IN IMPASSE.  A
STRIKE ENSURED AGAINST ONE OF THE RESPONDENTS, LASALLE'S, AND CONTINUED
UNTIL DECEMBER 24, 1958; THE DISPUTE WITH THE OTHER RESPONDENT, LION
DRY GOODS, CONTINUED DURING THE WHOLE OF THOSE 13 MONTHS ALTHOUGH NO
STRIKE OCCURRED.  ON DECEMBER 24, 1958, THE PARTIES ENDED THEIR DISPUTE
WITH THE AID OF THE TOLEDO LABOR-MANAGEMENT-CITIZENS' COMMITTEE
(HEREINAFTER, L-M-C), A LOCAL MEDIATION AND ARBITRATION BODY.  (FN3)
NEGOTIATIONS BY MEANS OF L-M-C MEDIATION HAD PRODUCED A "STATEMENT OF
UNDERSTANDING" (FN4) SATISFACTORY TO ALL PARTIES. 

THE STATEMENT CONTAINED SUCH KEY POINTS OF SETTLEMENT AS THE UNIONS'
ACKNOWLEDGMENT THAT THEY WERE NOT THEN ENTITLED TO RECOGNITION AS
EXCLUSIVE REPRESENTATIVES, AND WOULD NOT SEEK SUCH RECOGNITION UNLESS
AND UNTIL CERTIFIED AS SO ENTITLED IN SINGLE STORE UNIT ELECTIONS
CONDUCTED BY THE NATIONAL LABOR RELATIONS BOARD, AND LASALLE'S
AGREEMENT TO REINSTATE STRIKING EMPLOYEES WITHOUT DISCRIMINATION.  BOTH
STORES ALSO AGREED TO CONTINUE IN EFFECT DETAILED WAGE AND HOUR
SCHEDULES AND PROVISIONS AS TO WORKING CONDITIONS AND OTHER BENEFITS,
INCORPORATED AS EXHIBITS TO THE STATEMENT.  ALL TERMS OF EMPLOYMENT HAD
BEEN IN FORCE PRIOR TO DECEMBER 24, 1958, EXCEPT AN AGREEMENT BY THE
STORES TO PROVIDE AND PAY FULLY FOR SPECIFIED INSURANCE COVERAGE.  THE
STORES WROTE THE L-M-C DELIVERING THE STATEMENT, CALLING IT "THE BASIS
ON WHICH THE HERETOFORE EXISTING DISPUTE BETWEEN THE LOCALS AND OUR
COMPANIES IS TO BE FULLY AND FINALLY RESOLVED," AND SPECIFYING THAT
"THE CONDITIONS TO BE PERFORMED AND MET BY US ARE, OF COURSE, SUBJECT
TO AND CONDITIONED UPON THE RECEIPT BY YOUR ORGANIZATION OF GUARANTEES
FROM THE RESPECTIVE LABOR ORGANIZATIONS TO MAKE THE PRINCIPLES
ENUMERATED IN THE STATEMENT COMPLETELY EFFECTIVE."  A FEW DAYS LATER
THE LOCALS WROTE THE L-M-C THAT "WE HEREWITH AGREE TO THE CONDITIONS
AND GUARANTEES OF THE STATEMENT OF UNDERSTANDING."  THE CONDITIONS TO
BE PERFORMED BY EACH SIDE WERE PERFORMED AND THE DISPUTE WAS
TERMINATED.  IN A FEW MONTHS, HOWEVER, NEW GRIEVANCES AROSE, INCLUDING
THE TWO THAT GENERATED THIS CASE.  FIRST.  THE UNIONS CLAIMED UNDER THE
STATEMENT THE RIGHT OF ACCESS TO THE EMPLOYEES' CAFETERIA IN ORDER TO
COMMUNICATE WITH EMPLOYEES DURING THEIR NON-WORKING TIME.  THE STORES
CLAIMED THAT STATEMENT PARA. 6 GAVE NO RIGHT OF ACCESS TO THE
EMPLOYEES' CAFETERIAS, FOR THOSE ARE NOT "AREAS OF THE STORE WHICH ARE
OPEN TO CUSTOMERS."  (FN5)  SECOND.  TWO LASALLE'S EMPLOYEES,
SALESLADIES IN THE MEN'S FURNISHINGS DEPARTMENT, HAD BEEN FULLY
REINSTATED EXCEPT THAT THE SALESLADY FORMERLY ASSIGNED TO SELL MEN'S
SHIRTS WAS ASSIGNED TO SELL MEN'S SWEATERS, AND THE OTHER SALESLADY,
WHO HAD BEEN SELLING SWEATERS, NOW WAS ASSIGNED TO SELL SHIRTS.  THE
LOCALS SUBMITTED THESE MATTERS TO THE L-M-C UNDER THE PROCEDURE OF
STATEMENT PARA. 7; THE STORES AND THE LOCALS PARTICIPATED FULLY IN THE
ENSUING ARBITRATION PROCEEDINGS; AND THE AWARD WENT TO THE LOCALS ON
BOTH GRIEVANCES.  THE STORES' REFUSAL TO ACCEDE TO THOSE AWARDS
PROMPTED THIS SUIT. 

THE DISTRICT COURT VIEWED AS CRUCIAL THE QUESTION WHETHER THE
STATEMENT GIVEN BY THE STORES TO THE L-M-C AND THEN CONCURRED IN BY THE
LOCALS, CONSTITUTED "SUCH A CONTRACT AS IS CONTEMPLATED BY SECTION
301(A)."  179 F. SUPP., AT 567.  ALTHOUGH THE OPINION IS SOMEWHAT
AMBIGUOUS, WE READ IT AS HOLDING THAT THERE WAS A CONTRACT BETWEEN THE
LOCALS AND THE STORES BUT THAT ONLY CERTAIN KINDS OF CONTRACTS ARE
WITHIN THE PURVIEW OF SEC. 301(A) AND THIS WAS NOT ONE OF THEM.  (FN6)
WE INTERPRET THE DISTRICT COURT AS HOLDING THAT TO BE WITHIN SEC.
301(A), CONTRACTS MUST BE "COLLECTIVE BARGAINING CONTRACTS, OR
AGREEMENTS ARRIVED AT THROUGH COLLECTIVE BARGAINING," IBID.; AND
FURTHER, MUST BE WITH A UNION THAT IS THE RECOGNIZED MAJORITY
REPRESENTATIVE OF THE EMPLOYEES.  THE COURT FOUND THAT THE STATEMENT OF
UNDERSTANDING MET NEITHER TEST.  (FN7)  THE COURT OF APPEALS' BRIEF
AFFIRMANCE, SUPRA, FAILS TO MAKE CLEAR WHETHER IT AGREED WITH BOTH OF
THOSE LIMITATIONS ON SEC. 301(A), OR WITH ONLY ONE AND IF SO WHICH
ONE. 

IT IS ARGUED THAT CONGRESS LIMITED SEC. 301(A) JURISDICTION TO
CONTRACTS THAT ARE "COLLECTIVE BARGAINING CONTRACTS," MEANING, SO RUNS
THE ARGUMENT, ONLY AGREEMENTS CONCERNING WAGES, HOURS, AND CONDITIONS
OF EMPLOYMENT CONCLUDED IN DIRECT NEGOTIATIONS BETWEEN EMPLOYERS AND
UNIONS ENTITLED TO RECOGNITION AS EXCLUSIVE REPRESENTATIVES OF
EMPLOYEES. 

THE WORDS OF SEC. 301(A) REQUIRE NO SUCH NARROW CONSTRUCTION AS IS
SUGGESTED; RATHER, THEY NEGATE IT.  FIRST.  THE SECTION SAYS
"CONTRACTS" THOUGH CONGRESS KNEW WELL THE PHRASE "COLLECTIVE BARGAINING
CONTRACTS," SEE, E.G., SEC. 8(D), SEC. 9(A), SEC. 201(C), SEC. 203(D),
SEC. 204(A)(2), SEC. 211(A).  HAD CONGRESS CONTEMPLATED A RESTRICTIVE
DIFFERENTIATION, WE MAY ASSUME THAT IT WOULD NOT HAVE ESCHEWED
"COLLECTIVE BARGAINING CONTRACTS" UNWITTINGLY.  MOREOVER, CONGRESS
PROVIDED IN SEC. 211(A):  "FOR THE GUIDANCE AND INFORMATION OF
INTERESTED REPRESENTATIVES OF EMPLOYERS, EMPLOYEES, AND THE GENERAL
PUBLIC, THE BUREAU OF LABOR STATISTICS  ...  SHALL MAINTAIN A FILE OF
COPIES OF ALL AVAILABLE COLLECTIVE BARGAINING AGREEMENTS AND OTHER
AVAILABLE AGREEMENTS AND ACTIONS THEREUNDER SETTLING OR ADJUSTING LABOR
DISPUTES."  (FN8)  WHATEVER THE PROPER CONSTRUCTION OF THAT SECTION,
INSOFAR AS IT REFLECTS UPON SEC. 301(A) AT ALL, IT SUPPORTS THE
INFERENCE THAT "CONTRACTS" DOES INCLUDE MORE THAN "COLLECTIVE
BARGAINING AGREEMENTS," AT LEAST AS RESPONDENTS WOULD DEFINE THEM. 
SECOND.  IF "CONTRACTS" MEANS ONLY COLLECTIVE BARGAINING CONTRACTS, THE
SUBSEQUENT WORDS "OR BETWEEN ANY SUCH LABOR ORGANIZATIONS" ARE
SUPERFLUOUS, FOR IF THERE IS A COLLECTIVE BARGAINING AGREEMENT BETWEEN
UNIONS IT FOLLOWS THAT AS TO THAT AGREEMENT, ONE UNION IS THE EMPLOYER
AND THE OTHER REPRESENTS EMPLOYEES.  SEE OFFICE EMPLOYES UNION V. LABOR
BOARD, 353 U.S. 313.  CONGRESS WAS NOT INDULGING IN SURPLUSAGE:  A
FEDERAL FORUM WAS PROVIDED FOR ACTIONS ON OTHER LABOR CONTRACTS BESIDES
COLLECTIVE BARGAINING CONTRACTS.  SEE, E.G., UNITED TEXTILE WORKERS V.
TEXTILE WORKERS UNION, 258 F.2D 743 (NO-RAIDING AGREEMENT).  BUT, IT IS
URGED, THOUGH CONGRESS MEANT THAT LABOR ORGANIZATIONS COULD SUE ONE
ANOTHER IN FEDERAL COURTS ON OTHER CONTRACTS BETWEEN THEMSELVES, SUITS
BETWEEN EMPLOYERS AND UNIONS WERE STILL LIMITED TO ACTIONS ON
COLLECTIVE BARGAINING CONTRACTS:  THE PROVISION FOR SUITS BETWEEN LABOR
ORGANIZATIONS WAS INSERTED IN CONFERENCE.  (FN9)  DIFFERING HOUSE AND
SENATE BILLS WERE RECONCILED IN CONFERENCE.  THE HOUSE BILL SPOKE OF
SUITS INVOLVING A VIOLATION OF "AN AGREEMENT BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION OR OTHER REPRESENTATIVE OF EMPLOYEES ...  ."  THE
SENATE BILL READ "CONTRACTS CONCLUDED AS THE RESULT OF COLLECTIVE
BARGAINING BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION  ...  ." 
(FN10)  IT IS URGED THAT THE CONFERENCE COMPROMISE UPON THE WORD
"CONTRACTS" REFLECTS A DESIRE TO USE ONE WORD TO COVER BOTH SUITS
BETWEEN EMPLOYERS AND UNIONS, AND SUITS BETWEEN UNIONS.  BUT IT SEEMS
OBVIOUS THAT HAD CONGRESS INTENDED ANY LIMITING DIFFERENTIATION, THIS
WOULD HAVE BEEN ACCOMPLISHED BY RETAINING THE SENATE BILL'S PHRASING
FOR AGREEMENTS BETWEEN EMPLOYERS AND UNIONS AND THEN PROVIDING
SPECIFICALLY FOR THE APPLICATION OF THE STATUTE TO "CONTRACTS BETWEEN
ANY SUCH LABOR ORGANIZATIONS."  THIRD.  A 1959 ENACTMENT, SEC. 8(F),
(FN11) EXPLICITLY CONTEMPLATES CONTRACTS THAT WOULD NOT FIT
RESPONDENTS' CONCEPT OF "COLLECTIVE BARGAINING AGREEMENTS."  IT
AUTHORIZES CONTRACTING WITH UNIONS THAT REPRESENT PERSONS NOT YET EVEN
HIRED BY THE EMPLOYER.  SUCH A CONTRACT MIGHT COVER ONLY HIRING
PROCEDURES AND NOT WAGES, HOURS, AND CONDITIONS OF EMPLOYMENT.  NOTHING
SUPPORTS THE IMPROBABLE CONGRESSIONAL INTENT THAT THE FEDERAL COURTS BE
CLOSED TO SUCH CONTRACTS. 

WE FIND, THEN, FROM A READING OF THE WORDS OF SEC. 301(A), BOTH IN
ISOLATION AND IN CONNECTION WITH THE STATUTE AS A WHOLE, NO BASIS FOR
DENYING JURISDICTION OF THE ACTION BASED UPON THE ALLEGED VIOLATION OF
THE "STRIKE SETTLEMENT AGREEMENT." 

FURTHERMORE, THE STATUTE'S PURPOSE WOULD BE DEFEATED BY EXCLUDING
SUCH CONTRACTS FROM "CONTRACTS" COGNIZABLE UNDER SEC. 301(A).  SEE
CHARLES DOWD BOX CO. V. COURTNEY, 368 U.S. 502.  IF THIS KIND OF STRIKE
SETTLEMENT WERE NOT ENFORCEABLE UNDER SEC. 301(A), RESPONSIBLE AND
STABLE LABOR RELATIONS WOULD SUFFER, AND THE ATTAINMENT OF THE LABOR
POLICY OBJECTIVE OF MINIMIZING DISRUPTION OF INTERSTATE COMMERCE WOULD
BE MADE MORE DIFFICULT.  IT IS NO ANSWER THAT IN A PARTICULAR CASE THE
AGREEMENT MIGHT BE ENFORCEABLE IN STATE COURTS:  A MAIN GOAL OF SEC.
301 WAS PRECISELY TO END "CHECKERBOARD JURISDICTION," SEYMOUR V.
SCHNECKLOTH, 368 U.S. 351, AT 358.  SEE CHARLES DOWD BOX CO. V.
COURTNEY, SUPRA. 

LASTLY, LEGISLATIVE HISTORY REFUTES THE ARGUMENT THAT CONGRESS
INTENDED TO OMIT AGREEMENTS OF THE KIND IN SUIT FROM "CONTRACTS"
FALLING WITHIN THE PURVIEW OF SEC. 301(A).  (FN12) 

WE NEED NOT DECIDE WHETHER OR NOT THIS STRIKE SETTLEMENT AGREEMENT IS
A "COLLECTIVE BARGAINING AGREEMENT" TO HOLD, AS WE DO, THAT IT IS A
"CONTRACT" FOR PURPOSES OF SEC. 301(A).  "CONTRACT IN LABOR LAW IS A
TERM THE IMPLICATIONS OF WHICH MUST BE DETERMINED FROM THE CONNECTION
IN WHICH IT APPEARS."  J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332,
334.  IT IS ENOUGH THAT THIS IS CLEARLY AN AGREEMENT BETWEEN EMPLOYERS
AND LABOR ORGANIZATIONS SIGNIFICANT TO THE MAINTENANCE OF LABOR PEACE
BETWEEN THEM.  IT CAME INTO BEING AS A MEANS SATISFACTORY TO BOTH SIDES
FOR TERMINATING A PROTRACTED STRIKE AND LABOR DISPUTE.  ITS TERMS
AFFECT THE WORKING CONDITIONS OF THE EMPLOYEES OF BOTH RESPONDENTS.  IT
EFFECTED THE END OF PICKETING AND RESORT BY THE LABOR ORGANIZATIONS TO
OTHER ECONOMIC WEAPONS, AND RESTORED STRIKERS TO THEIR JOBS.  IT
RESOLVED A CONTROVERSY ARISING OUT OF, AND IMPORTANTLY AND DIRECTLY
AFFECTING, THE EMPLOYMENT RELATIONSHIP.  PLAINLY IT FALLS WITHIN SEC.
301(A).  "FEDERAL COURTS SHOULD ENFORCE THESE AGREEMENTS ON BEHALF OF
OR AGAINST LABOR ORGANIZATIONS AND  ...  INDUSTRIAL PEACE CAN BE BEST
OBTAINED ONLY IN THAT WAY."  TEXTILE WORKERS UNION V. LINCOLN MILLS,
353 U.S. 448, 455. 

ONLY A FEW WORDS ARE NECESSARY TO DISPOSE OF RESPONDENTS' SECOND
CONTENTION, THAT EVEN IF THIS AGREEMENT WERE OTHERWISE WITHIN SEC.
301(A), PETITIONERS' DISCLAIMER OF ENTITLEMENT TO RECOGNITION AS
EXCLUSIVE REPRESENTATIVES PUTS THEM OUT OF COURT.  THIS ISSUE DOES NOT
TOUCH UPON WHETHER MINORITY UNIONS MAY DEMAND THAT EMPLOYERS ENTER INTO
PARTICULAR KINDS OF CONTRACTS OR THE CIRCUMSTANCES UNDER WHICH
EMPLOYERS MAY ACCORD RECOGNITION TO UNIONS AS EXCLUSIVE BARGAINING
AGENTS.   THE QUESTION IS ONLY WHETHER "LABOR ORGANIZATION REPRESENTING
EMPLOYEES" IN SEC. 301(A) HAS A MEANING DIFFERENT FROM "LABOR
ORGANIZATION WHICH REPRESENTS EMPLOYEES" IN SEC. 301(B).  IN UNITED
STATES V. RYAN, 350 U.S. 299, WE REJECTED THE ARGUMENT THAT SEC. 301(B)
WAS LIMITED TO MAJORITY REPRESENTATIVES.  NEITHER THE WORDS, PURPOSE,
NOR HISTORY OF THE STATUTE SUGGESTS ANY REASON FOR A DIFFERENT
CONSTRUCTION OF THE VIRTUALLY IDENTICAL WORDS OF SUBSECTION (A).  NOR
CAN "LABOR ORGANIZATION REPRESENTING EMPLOYEES" IN SEC. 301(A) BE READ
AS DIFFERING FROM "ANY SUCH LABOR ORGANIZATIONS" IN THAT SUBSECTION'S
VERY NEXT PHRASE, AND PLAINLY, IN SUITS BETWEEN LABOR ORGANIZATIONS,
THEIR RIGHT TO RECOGNITION AS EXCLUSIVE REPRESENTATIVES VIS-A-VIS
EMPLOYERS HAS NO RELEVANCE WHATEVER. 

"MEMBERS ONLY" CONTRACTS HAVE LONG BEEN RECOGNIZED.  SEE, E.G.,
CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197.  HAD CONGRESS
THOUGHT THAT THERE WAS ANY MERIT IN LIMITING FEDERAL JURISDICTION TO
SUITS ON CONTRACTS WITH EXCLUSIVE BARGAINING AGENTS, WE MIGHT HAVE
EXPECTED CONGRESS EXPLICITLY SO TO PROVIDE, FOR EXAMPLE, BY ENACTING
THAT SEC. 301(A) SHOULD BE READ WITH SEC. 9(A).  COMPARE SEC. 8(A)(3),
SEC. 8(A)(5), SEC. 8(B)(3), SEC. 8(B)(4), SEC. 8(D).  MOREOVER, SEC.
8(F), THE 1959 AMENDMENT CONSIDERED SUPRA, P. 27, CONTEMPLATES
CONTRACTING WITH UNIONS THAT WOULD NOT REPRESENT A MAJORITY.  LASTLY,
IF THE FEDERAL COURTS' JURISDICTION UNDER SEC. 301(A) REQUIRED A
PRELIMINARY DETERMINATION OF THE REPRESENTATIVE STATUS OF THE LABOR
ORGANIZATION INVOLVED, POTENTIAL CONFLICT WITH THE NATIONAL LABOR
RELATIONS BOARD WOULD BE INCREASED, CF. LA CROSSE TELEPHONE CORP. V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, 336 U.S. 18; AMAZON COTTON MILL
CO. V. TEXTILE WORKERS UNION, 167 F.2D 183, AND LITIGATION WOULD BE
MUCH HINDERED. 

WE CONCLUDE THAT THE PETITIONERS' ACTION FOR ALLEGED VIOLATION OF THE
STRIKE SETTLEMENT AGREEMENT WAS COGNIZABLE BY THE DISTRICT COURT UNDER
SEC. 301(A).  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  61 STAT. 156, 29 U.S.C. SEC. 185(A). 

FN2  RESPONDENTS CLAIM THAT THE CAUSE IS MOOT SINCE, AFTER THE
COMMENCEMENT OF THIS ACTION, THE PETITIONERS MERGED WITH LOCAL 954 OF
THE SAME INTERNATIONAL UNION TO FORM A NEW LOCAL 954.  PETITIONERS DENY
MOOTNESS AND MOVE TO ADD OR SUBSTITUTE LOCAL 954 AS A PARTY.  THE FACTS
OF THE MERGER MAKE THIS CASE INDISTINGUISHABLE FROM DE VEAU V.
BRAISTED, 363 U.S. 144; SEE ALSO LABOR BOARD V. INSURANCE AGENTS'
INTERNATIONAL UNION, 361 U.S. 477.  WE THEREFORE HOLD THAT THE CASE IS
NOT MOOT, AND THE PETITIONERS' MOTION TO ADD LOCAL 954 AS A PARTY IS
GRANTED. 

FN3  BEFORE 1957, THE RESPONDENTS AND TWO OTHER DOWNTOWN TOLEDO
DEPARTMENT STORES, THROUGH AN ORGANIZATION, RETAIL ASSOCIATES, INC.,
RECOGNIZED THE PETITIONERS AS REPRESENTATIVES OF THEIR EMPLOYEES AND
EXECUTED COLLECTIVE BARGAINING AGREEMENTS WITH THE PETITIONERS ON A
MULTI-EMPLOYER BASIS.  WHEN THE 1957 IMPASSE DEVELOPED, THE PETITIONERS
STRUCK ONE OF THOSE TWO OTHER STORES AND IT PROMPTLY CONTRACTED
SEPARATELY WITH THE PETITIONERS.  RESPONDENTS AND THE SECOND OF THE TWO
OTHER STORES PETITIONED THE NATIONAL LABOR RELATIONS BOARD TO CONDUCT
AN ELECTION AMONG THE EMPLOYEES OF THE THREE STORES AS A SINGLE
BARGAINING UNIT.  THE PETITIONERS REACTED WITH A DEMAND THAT EACH STORE
NEGOTIATE SEPARATELY.  SIMULTANEOUSLY, THE PETITIONERS CALLED THE
STRIKE AT RESPONDENT LASALLE'S. THE DISPUTE PRODUCED CONSIDERABLE
LITIGATION.  SEE LOCAL 128, RETAIL CLERKS V. LEEDOM, 42 LRR MAN.  2031;
RETAIL ASSOCIATES, INC., 120 N.L.R.B. 388; RETAIL CLERKS ASSN. V.
LEEDOM, 43 LRR MAN.  2004, 2029. 

A FEW DAYS BEFORE DECEMBER 24, 1958, THE L-M-C PROPOSED A PLAN FOR
SETTLING THE DISPUTE.  DISCUSSIONS ENSUED BETWEEN THE COMMITTEE AND THE
RESPONDENTS, AND BETWEEN THE COMMITTEE AND THE PETITIONERS.  AT NO TIME
WERE DIRECT NEGOTIATIONS CARRIED ON BETWEEN PETITIONERS AND THE
RESPONDENTS.  EACH SIDE MADE KNOWN TO THE L-M-C THE CONDITIONS UNDER
WHICH IT WAS WILLING TO RESOLVE THE DISPUTE AND THE L-M-C DISCUSSED
THESE CONDITIONS WITH THE OTHER SIDE.  IN THIS MANNER A BASIS FOR
SETTLEMENT WAS FASHIONED WHICH WAS EMBODIED IN THE STATEMENT REFERRED
TO IN THE TEXT. 

FN4  THE LASALLE'S STATEMENT OF UNDERSTANDING (EXHIBITS OMITTED)
READS AS FOLLOWS: 

"1.  EMPLOYEES OF LASALLE'S, WHO HAVE BEEN ABSENT DUE TO THE STRIKE,
WILL BE RE-INSTATED WITHOUT DISCRIMINATION BECAUSE OF ANY STRIKE
ACTIVITIES AND WITHOUT LOSS OF SENIORITY PROVIDED THEY MAKE APPLICATION
FOR REINSTATEMENT IN THE FORM AND MANNER PROVIDED FOR BY THE EMPLOYER
WITHIN FIFTEEN DAYS OF RECEIPT OF NOTICE FROM THE EMPLOYER. 

"2.  ALL SUCH EMPLOYEES WHO HAVE COMPLIED WITH THE PROVISIONS OF
PARAGRAPH 1 ABOVE, WILL BE RETURNED TO WORK NOT LATER THAN FEBRUARY 2,
1959, AS SCHEDULED BY THE COMPANY, IN THEIR FORMER POSITION
CLASSIFICATIONS IF VACANT OR IN POSITIONS COMPARABLE IN DUTIES AND
EARNING OPPORTUNITIES. 

"3.  IT IS UNDERSTOOD THAT RETURNING STRIKERS WILL DEVOTE THEIR BEST
EFFORTS TO THEIR WORK AND TO SERVING THE CUSTOMERS OF LASALLE'S,
RECOGNIZING THAT STABILITY OF EMPLOYMENT DEPENDS UPON THE SUCCESS OF
THE BUSINESS. 

"4.  LASALLE'S WILL WARRANT TO THE L-M-C THAT THE COMPANY WILL NOT
REDUCE RATES OF PAY PRESENTLY IN EFFECT OR WITHDRAW OR REDUCE EMPLOYEE
BENEFIT PROGRAMS CURRENTLY PROVIDED.  THIS ASSURANCE INCLUDES ALL
IMPROVEMENTS OFFERED BY THE COMPANY THROUGH THE L-M-C ON NOVEMBER 15TH,
1957, WHICH ARE ALREADY IN EFFECT.  NO EMPLOYEE WILL BE DISCRIMINATED
AGAINST, BY REASON OF UNION ACTIVITIES, MEMBERSHIP OR NON-MEMBERSHIP. 
ALL EMPLOYEES WILL CONTINUE TO HAVE JOB SECURITY AND NO EMPLOYEE WILL
BE DISCHARGED EXCEPT FOR JUST CAUSE.  WAGE SCHEDULES CURRENTLY IN
EFFECT ARE APPENDED AS EXHIBIT A. COPIES OF HOURS AND WORKING
CONDITIONS AND OTHER EXISTING BENEFITS, AS REQUESTED BY L-M-C ARE
ATTACHED AS EXHIBIT B. 

"5.  NEITHER THE COMPANY NOR THE UNION WILL INTERFERE WITH THE
EMPLOYEE'S RIGHT TO JOIN OR NOT TO JOIN A UNION, AS PROVIDED AND
GUARANTEED BY THE LABOR-MANAGEMENT-RELATIONS ACT.  NOTHING CONTAINED
HEREIN IS TO BE CONSTRUED AS GIVING RECOGNITION TO THE UNION UNLESS AT
SOME FUTURE TIME WITHIN THE DISCRETION OF THE UNION, THE UNION IS
CERTIFIED AS HAVING BEEN CHOSEN BY A MAJORITY OF EMPLOYEES IN A SINGLE
STORE UNIT ELECTION CONDUCTED BY THE NATIONAL LABOR RELATIONS BOARD. 

"6.  THE UNION AGREES THAT IT WILL NOT REQUEST BARGAINING RIGHTS
UNLESS IT PROVES ITS RIGHT TO REPRESENT THE EMPLOYEES AS PROVIDED IN
PARAGRAPH 5 ABOVE; NOR WILL THE EMPLOYER RECOGNIZE ANY UNION EXCEPT
UPON CERTIFICATION BY THE N.L.R.B.; NOR WILL THE COMPANY FILE A
PETITION FOR ELECTION UNLESS A CLAIM FOR REPRESENTATION IS MADE UPON
THE EMPLOYER.  NOTHING HEREIN SHALL PRECLUDE AN EMPLOYEE REPRESENTATIVE
FROM ENTERING AREAS OF THE STORE WHICH ARE OPEN TO CUSTOMERS; OR FROM
COMMUNICATING WITH EMPLOYEES, PROVIDED SUCH COMMUNICATION IS ON THE
EMPLOYEE'S NON-WORKING TIME AND IN NO WAY INTERFERES WITH THE OPERATING
OF THE BUSINESS. 

"7.  ANY INDIVIDUAL EMPLOYEE WHO MAY HAVE A GRIEVANCE INVOLVING AN
INTERPRETATION OR APPLICATION OF OR ARISING UNDER THE TERMS OF THIS
UNDERSTANDING WITH THE L-M-C, AND WHO HAS PRESENTED SUCH GRIEVANCE TO
HIS SUPERVISOR AND THE PERSONNEL DEPARTMENT WITHOUT REACHING A
SATISFACTORY SOLUTION, MAY TAKE HIS CASE TO THE CHAIRMAN OF THE L-M-C
WHO IN TURN SHALL REFER THE CASE TO A PANEL OF THE L-M-C, WHOSE
MAJORITY DECISION AND ORDER SHALL BE FINAL AND BINDING.  THE PANEL
SHALL RENDER ITS DECISION AND ORDER WITHIN FIFTEEN DAYS AFTER THE
GRIEVANCE HAS BEEN SUBMITTED TO IT.  THE PROCEDURE REGULATING THE
HEARING OF THE GRIEVANCE BY THE L-M-C PANEL SHALL BE DETERMINED BY THE
PANEL. 

"8.  THE UNION WILL AGREE THAT IMMEDIATELY UPON RECEIPT OF THIS
STATEMENT OF UNDERSTANDING BY THE TOLEDO LABOR-MANAGEMENT-CITIZENS
COMMITTEE IT WILL CEASE ALL PICKETING, BOYCOTTING OR OTHER INTERFERENCE
WITH THE BUSINESS OF LASALLE'S, OR R.H. MACY & CO., INC. WHEREVER
LOCATED.  THE UNION, THE STRIKERS, AND THE COMPANY SHALL WITHDRAW
FORTHWITH ALL PETITIONS, UNFAIR LABOR PRACTICE CHARGES AND LITIGATION
BEFORE THE NATIONAL LABOR RELATIONS BOARD AND THE COURTS AND FURTHER
AGREE NOT TO INSTITUTE IN THE FUTURE ANY LITIGATION INVOLVING OR
ARISING OUT OF THE INSTANT DISPUTE.  THE UNION AND THE EMPLOYER SHALL
EXECUTE MUTUALLY SATISFACTORY RELEASES, RELEASING AND DISCHARGING EACH
OTHER, THE INTERNATIONAL UNION, THE LOCAL UNIONS INVOLVED, AND
REPRESENTATIVES OF THE UNION IN THEIR REPRESENTATIVE OR INDIVIDUAL
CAPACITY, LABOR PAPERS, AND ALL OTHER LABOR ORGANIZATIONS OR THEIR
REPRESENTATIVES WHO ACTED IN CONCERT OR COOPERATION IN CONNECTION WITH
THE DISPUTE, FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, OF
WHATEVER NATURE OR DESCRIPTION ARISING OUT OF THE LABOR DISPUTE,
INCLUDING BUT NOT LIMITED TO THE STRIKES, PICKETING, BOYCOTTING, AND
ALL OTHER ACTIVITIES WHICH MAY HAVE TAKEN PLACE UP TO THE PRESENT
DATE. 

"9.  THIS UNDERSTANDING SHALL BECOME EFFECTIVE IN ACCORDANCE WITH THE
LETTER OF TRANSMITTAL DATED DECEMBER 24, 1958." 

THE LION STORE'S STATEMENT IS IDENTICAL EXCEPT FOR THE OMISSION OF
PARAGRAPHS 1, 2 AND 3. 

FN5  THE PARTIES' TRIAL STIPULATION SAYS, INTER ALIA:  "THE EMPLOYEE
CAFETERIAS IN THE DOWNTOWN STORES OF THE DEFENDANTS  ...  ARE LOCATED
IN AREAS IN EACH OF THE STORES NOT OPEN TO CUSTOMERS; ...  " 

FN6  THE DISTRICT COURT RELIED FOR ITS VIEW OF THE LIMITED MEANING OF
"CONTRACTS" UNDER SEC. 301(A) UPON SCHATTE V. INTERNATIONAL ALLIANCE,
84 F. SUPP. 669.  HOWEVER, THAT CASE DECIDED AS TO SEC. 301 ONLY THAT
THE SECTION DID NOT APPLY TO A CAUSE OF ACTION WHICH AROSE BEFORE ITS
ENACTMENT.  182 F.2D 158, 164-165. 

APART FROM THE QUESTION OF ITS COGNIZABILITY UNDER SEC. 301(A), IT IS
CLEAR THAT THE STATEMENT CONSTITUTES A CONTRACT BETWEEN THE PARTIES. 
THIS IS SO, ALTHOUGH THEY DID NOT NEGOTIATE DIRECTLY BUT THROUGH A
MEDIATOR, AND DID NOT CONJOIN THEIR SIGNATURES ON ONE DOCUMENT.  THE
RECORD MAKES OBVIOUS THAT NEITHER THE PARTIES NOR L-M-C CONTEMPLATED
TWO INDEPENDENT AGREEMENTS, ONE BY EACH SIDE WITH L-M-C ONLY,
UNENFORCEABLE BY EITHER SIDE AGAINST THE OTHER. 

THE PARTIES STIPULATED AS TO THE ARTITRATION PROCEEDINGS THAT IT WAS
"ASSUMED BY ALL PARTIES IN ATTENDANCE TO BE A MEETING OF A PANEL CHOSEN
...  TO PERFORM PROPER FUNCTIONS DELEGATED TO SUCH A PANEL UNDER THE
PROVISIONS OF  ...  THE STATEMENTS OF UNDERSTANDING  ...  ."  THEY
FURTHER STIPULATED THAT "NOTHING  ...  HEREIN IS TO PRECLUDE THE COURT
FROM FINDING THAT THE SETTLEMENT OF DECEMBER 24, 1958, WAS A COLLECTIVE
BARGAINING AGREEMENT."  IN THEIR ANSWER IN THE DISTRICT COURT,
RESPONDENTS DENIED "THAT THERE IS IN EXISTENCE ANY CONTRACT BETWEEN THE
PLAINTIFFS, OR EITHER OF THEM, AND THE DEFENDANTS, OR EITHER OF THEM,
OR THAT THERE IS IN EXISTENCE ANY AGREEMENT BETWEEN THE PARTIES,
COLLECTIVELY OR SINGLY, WHEREBY THE L-M-C IS GIVEN ANY RIGHT OR
AUTHORITY TO ARBITRATE ANY GRIEVANCE WHICH THE PLAINTIFFS MIGHT CLAIM
TO HAVE."  PETITIONERS CLAIM AND THE RESPONDENTS DO NOT DENY THAT AT NO
TIME PRIOR TO THEIR ANSWER HAD RESPONDENTS SUGGESTED THERE WAS NO
CONTRACT:  THEY COMPLIED WITH THE CONDITIONS FOR ENDING THE DISPUTE,
THEY CONTINUED FOLLOWING THE OLD WAGE AND HOUR SCHEDULES AND OTHER
PROVISIONS, THEY PARTICIPATED IN THE ARBITRATION PROCEEDINGS AND THEY
ASKED THE L-M-C TO RECONSIDER THEIR AWARDS ON THE MERITS. 

RESPONDENTS' CONTENTION THROUGHOUT, WHETHER BECAUSE OF THE
STIPULATION OR OTHERWISE, HAS BEEN NOT TO NEGATE THE EXISTENCE OF ANY
CONTRACT AT ALL, BUT RATHER TO DENY THAT THERE IS A CONTRACT OF THE
KIND CONTEMPLATED BY SEC. 301(A).  THE DISTRICT COURT SO CONSTRUED THE
DEFENSE, 179 F. SUPP., AT 565.  THE COURT OF APPEALS APPEARS TO HAVE
AGREED; SEE SUPRA.  AND AT NO POINT IN THEIR BRIEF IN THIS COURT DO
RESPONDENTS ARGUE THAT NO CONTRACT EXISTS; THEY AGREE THAT THE ONLY
ISSUE IS JURISDICTIONAL. 

FN7  THE COURT EMPHASIZED THAT THE STATEMENT DISCLAIMED THE LOCALS'
RIGHT TO BE RECOGNIZED AS EXCLUSIVE BARGAINING AGENT UNTIL SO CERTIFIED
BY THE NATIONAL LABOR RELATIONS BOARD. 

FN8  61 STAT. 156, 29 U.S.C. SEC. 181(A). 

FN9  2 N.L.R.B., LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, PP. 1535, 1543. 

FN10  1, ID., AT 221, 279. 

FN11  73 STAT. 545, 29 U.S.C. (SUPP. II) SEC. 158(F). 

FN12  SEE 1 AND 2 N.L.R.B., SUPRA, N. 9, AT 94, 151, 221, 279, 297,
336-367, 399-400, 409, 421-424, 436, 475 (SEE ID., AT 441), 569-570,
873, 927, 993, 1013, 1014, 1037, 1043, 1044, 1065-1066, 1074, 1076,
1078, 1118, 1123-1124, 1128, 1133, 1145-1146, 1150, 1166, 1208, 1325,
1342-1343, 1446, 1456, 1461, 1483, 1488, 1497, 1524, 1539, 1543, 1557
1558, 1619, 1626, 1654.  NONE OF THE MANY REFERENCES TO COLLECTIVE
BARGAINING CONTRACTS" EVINCES A CONSIDERATION OF THE MEANING OR SCOPE
OF THAT PHRASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I WHOLLY AGREE WITH THE COURT IN REJECTING THE RESTRICTIVE MEANING
GIVEN BY THE COURT OF APPEALS TO "CONTRACTS" IN SEC. 301(A) OF THE
LABOR MANAGEMENT RELATIONS ACT.  I HAVE, HOWEVER, SERIOUS DOUBT WHETHER
THE "STATEMENT OF UNDERSTANDING" ON THE BASIS OF WHICH THE STRIKE WAS
SETTLED WAS IN FACT A CONTRACT, IN THE SENSE OF A CONSENSUAL
ARRANGEMENT BETWEEN THE RETAIL CLERKS AND LION DRY GOODS, RATHER THAN A
FORMULATION OF THE RESULTS OF THE INTERCESSION OF A PUBLIC-SPIRITED
INTERMEDIARY ON THE BASIS OF WHICH EACH SIDE WAS PREPARED TO LAY DOWN
ITS ARMS.  HOWEVER, ON A MATTER OF CONSTRUING A PARTICULAR DOCUMENT, IN
LIGHT OF THE SURROUNDING CIRCUMSTANCES, I DO NOT DESIRE TO DISSENT. 
..END :


















BAILEY V. PATTERSON. 369 U.S. 31 


NO. 643.  DECIDED FEBRUARY 26, 1962 - 199 F. SUPP. 595, JUDGMENT VACATED
AND CASE REMANDED. 


APPELLANTS, NEGROES LIVING IN JACKSON, MISSISSIPPI, BROUGHT THIS CIVIL
RIGHTS ACTION IN A FEDERAL DISTRICT COURT ON BEHALF OF THEMSELVES AND
OTHERS SIMILARLY SITUATED, SEEKING INJUNCTIONS TO ENFORCE THEIR
CONSTITUTIONAL RIGHTS TO NONSEGREGATED SERVICE IN INTERSTATE AND
INTRASTATE TRANSPORTATION.  THEY ALLEGED THAT SUCH RIGHTS HAD BEEN
DENIED THEM UNDER COLOR OF STATE STATUTES, MUNICIPAL ORDINANCES, AND
STATE CUSTOM AND USAGE.  A THREE-JUDGE DISTRICT COURT CONVENED TO
CONSIDER THE CASE ABSTAINED FROM FURTHER PROCEEDINGS, PENDING
CONSTRUCTION OF THE CHALLENGED LAWS BY THE STATE COURTS, AND APPELLANTS
APPEALED DIRECTLY TO THIS COURT UNDER 28 U.S.C. SEC. 1253.  HELD: 

1.  APPELLANTS LACK STANDING TO ENJOIN CRIMINAL PROSECUTIONS UNDER
MISSISSIPPI'S BREACH-OF-PEACE STATUTES, SINCE THEY DO NOT ALLEGE THAT
THEY HAVE BEEN PROSECUTED OR THREATENED WITH PROSECUTION THEREUNDER;
BUT, AS PASSENGERS USING THE SEGREGATED TRANSPORTATION FACILITIES, THEY
HAVE STANDING TO ENFORCE THEIR RIGHTS TO NONSEGREGATED TREATMENT.  PP.
32-33. 

2.  THAT NO STATE MAY REQUIRE RACIAL SEGREGATION OF INTERSTATE OR
INTRASTATE TRANSPORTATION FACILITIES HAS BEEN SO WELL SETTLED THAT IT
IS FORECLOSED AS A LITIGABLE ISSUE, AND A THREE-JUDGE COURT WAS NOT
REQUIRED TO PASS ON THIS CASE UNDER 28 U.S.C. SEC. 2281.  P. 33. 

3.  SINCE THIS CASE IS NOT ONE REQUIRED TO BE HEARD AND DETERMINED BY
A DISTRICT COURT OF THREE JUDGES UNDER 28 U.S.C. SEC. 2281, IT CANNOT
BE BROUGHT TO THIS COURT ON DIRECT APPEAL UNDER SEC. 1253; BUT THIS
COURT HAS JURISDICTION TO DETERMINE THE AUTHORITY OF THE COURT BELOW
AND TO MAKE SUCH CORRECTIVE ORDER AS MAY BE APPROPRIATE TO THE
ENFORCEMENT OF THE LIMITATION WHICH THAT SECTION IMPOSES.  P. 34. 

4.  THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR EXPEDITIOUS DISPOSITION, IN THE LIGHT OF THIS OPINION, OF
APPELLANTS' CLAIMS OF RIGHT TO NONSEGREGATED TRANSPORTATION SERVICE. 
P. 34. 

BAILEY ET AL. V. PATTERSON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI.  PER CURIAM. 

APPELLANTS, NEGROES LIVING IN JACKSON, MISSISSIPPI, BROUGHT THIS
CIVIL RIGHTS ACTION, 28 U.S.C. SEC. 1343(3), IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, ON BEHALF OF
THEMSELVES AND OTHERS SIMILARLY SITUATED, SEEKING TEMPORARY AND
PERMANENT INJUNCTIONS TO ENFORCE THEIR CONSTITUTIONAL RIGHTS TO
NONSEGREGATED SERVICE IN INTERSTATE AND INTRASTATE TRANSPORTATION,
ALLEGING THAT SUCH RIGHTS HAD BEEN DENIED THEM UNDER COLOR OF STATE
STATUTES, MUNICIPAL ORDINANCES, AND STATE CUSTOM AND USAGE.*  A THREE
JUDGE DISTRICT COURT WAS CONVENED, 28 U.S.C. SEC. 2281, AND, CIRCUIT
JUDGE RIVES DISSENTING, ABSTAINED FROM FURTHER PROCEEDINGS PENDING
CONSTRUCTION OF THE CHALLENGED LAWS BY THE STATE COURTS.  199 F. SUPP.
595.  PLAINTIFFS HAVE APPEALED, 28 U.S.C. SEC. 1253; N.A.A.C.P. V.
BENNETT, 360 U.S. 471.  WE DENIED A MOTION TO STAY THE PROSECUTION OF A
NUMBER OF CRIMINAL CASES PENDING DISPOSITION OF THIS APPEAL.  368 U.S.
346. 

*THE STATUTES IN QUESTION ARE MISS.  CODE, 1942, TIT. 11, SECS. 2351,
2351.5, 2351.7, AND TIT. 28, SECS. 7784, 7785, 7786, 7786-01, 7787,
7787.5. 

APPELLANTS LACK STANDING TO ENJOIN CRIMINAL PROSECUTIONS UNDER
MISSISSIPPI'S BREACH-OF-PEACE STATUTES, SINCE THEY DO NOT ALLEGE THAT
THEY HAVE BEEN PROSECUTED OR THREATENED WITH PROSECUTION UNDER THEM. 
THEY CANNOT REPRESENT A CLASS OF WHOM THEY ARE NOT A PART.  MCCABE V.
ATCHISON, T.&S.F.R. CO., 235 U.S. 151, 162-163.  BUT AS PASSENGERS
USING THE SEGREGATED TRANSPORTATION FACILITIES THEY ARE AGGRIEVED
PARTIES AND HAVE STANDING TO ENFORCE THEIR RIGHTS TO NONSEGREGATED
TREATMENT.  MITCHELL V. UNITED STATES, 313 U.S. 80, 93; EVERS V. DWYER,
358 U.S. 202. 

WE HAVE SETTLED BEYOND QUESTION THAT NO STATE MAY REQUIRE RACIAL
SEGREGATION OF INTERSTATE OR INTRASTATE TRANSPORTATION FACILITIES. 
MORGAN V. VIRGINIA, 328 U.S. 373; GAYLE V. BROWDER, 352 U.S. 903;
BOYNTON V. VIRGINIA, 364 U.S. 454.  THE QUESTION IS NO LONGER OPEN; IT
IS FORECLOSED AS A LITIGABLE ISSUE.  SECTION 2281 DOES NOT REQUIRE A
THREE-JUDGE COURT WHEN THE CLAIM THAT A STATUTE IS UNCONSTITUTIONAL IS
WHOLLY INSUBSTANTIAL, LEGALLY SPEAKING NONEXISTENT.  EX PARTE PORESKY,
290 U.S. 30; BELL V. WATERFRONT COMM'N, 279 F.2D 853, 857-858.  WE HOLD
THAT THREE JUDGES ARE SIMILARLY NOT REQUIRED WHEN, AS HERE, PRIOR
DECISIONS MAKE FRIVOLOUS ANY CLAIM THAT A STATE STATUTE ON ITS FACE IS
NOT UNCONSTITUTIONAL.  WILLIS V. WALKER, 136 F. SUPP. 181; BUSH V.
ORLEANS PARISH SCHOOL BOARD, 138 F. SUPP. 336; KELLEY V. BOARD OF
EDUCATION, 139 F. SUPP. 578.  WE DENIED LEAVE TO FILE PETITIONS FOR
MANDAMUS IN BUSH, 351 U.S. 948, AND FROM A SIMILAR RULING IN BOOKER V.
TENNESSEE BOARD OF EDUCATION, 351 U.S. 948.  THE REASONS FOR CONVENING
AN EXTRAORDINARY COURT ARE INAPPLICABLE IN SUCH CASES, FOR THE POLICY
BEHIND THE THREE-JUDGE REQUIREMENT - THAT A SINGLE JUDGE OUGHT NOT TO
BE EMPOWERED TO INVALIDATE A STATE STATUTE UNDER A FEDERAL CLAIM - DOES
NOT APPLY.  THE THREE-JUDGE REQUIREMENT IS A TECHNICAL ONE TO BE
NARROWLY CONSTRUED, PHILLIPS V. UNITED STATES, 312 U.S. 246, 251.  THE
STATUTE COMES INTO PLAY ONLY WHEN AN INJUNCTION IS SOUGHT "UPON THE
GROUND OF THE UNCONSTITUTIONALITY" OF A STATUTE.  THERE IS NO SUCH
GROUND WHEN THE CONSTITUTIONAL ISSUE PRESENTED IS ESSENTIALLY
FICTITIOUS. 

THIS CASE IS THEREFORE NOT ONE "REQUIRED  ...  TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES," 28 U.S.C. SEC. 1253,
AND THEREFORE CANNOT BE BROUGHT HERE ON DIRECT APPEAL.  HOWEVER, WE
HAVE JURISDICTION TO DETERMINE THE AUTHORITY OF THE COURT BELOW AND "TO
MAKE SUCH CORRECTIVE ORDER AS MAY BE APPROPRIATE TO THE ENFORCEMENT OF
THE LIMITATIONS WHICH THAT SECTION IMPOSES," GULLY V. INTERSTATE
NATURAL GAS CO., 292 U.S. 16, 18; OKLAHOMA GAS & ELEC.  CO. V. OKLAHOMA
PACKING CO., 292 U.S. 386, 392; PHILLIPS V. UNITED STATES, 312 U.S.
246, 254.  ACCORDINGLY, WE VACATE THE JUDGMENT AND REMAND THE CASE TO
THE DISTRICT COURT FOR EXPEDITIOUS DISPOSITION, IN LIGHT OF THIS
OPINION, OF THE APPELLANTS' CLAIMS OF RIGHT TO UNSEGREGATED
TRANSPORTATION SERVICE.  VACATED AND REMANDED. 
..END :





IN RE SHUTTLESWORTH. 369 U.S. 35 


NO. 1073, MISC.  DECIDED FEBRUARY 26, 1962. 


CERTIORARI GRANTED; ORDER OF COURT OF APPEALS VACATED; CASE REMANDED
TO DISTRICT COURT WITH INSTRUCTIONS. 

IN RE SHUTTLESWORTH. 

MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS. 

PER CURIAM. 

TREATING THIS APPLICATION FOR HABEAS CORPUS AS A PETITION FOR
CERTIORARI TO REVIEW THE DENIAL BY A JUDGE OF THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT OF A CERTIFICATE OF PROBABLE CAUSE FOR APPEAL (28
U.S.C. SEC. 2253) FROM THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ALABAMA, CF. IN RE BURWELL, 350 U.S. 521, 522, WE GRANT IT AS SUCH,
VACATE THE ORDER OF THE COURT OF APPEALS, AND REMAND THE CASE TO THE
DISTRICT COURT WITH INSTRUCTIONS TO HOLD THE MATTER WHILE PETITIONER
PURSUES HIS STATE REMEDIES (AS INDICATED IN THE OPINION OF JUDGE RIVES
DENYING A CERTIFICATE OF PROBABLE CAUSE), INCLUDING AN APPLICATION FOR
BAIL TO STATE COURTS PENDING DISPOSITION OF PETITIONER'S APPLICATION
FOR STATE RELIEF.  IN THE EVENT OF FAILURE TO SECURE SUCH RELIEF, OR TO
SECURE ADMISSION TO BAIL PENDING SUCH RELIEF WITHIN FIVE (5) DAYS FROM
THE DATE OF APPLICATION FOR BAIL, PETITIONER MAY, UPON APPROPRIATE
SHOWING, PROCEED ON THIS APPLICATION IN THE UNITED STATES DISTRICT
COURT WHICH MAY THEN CONSIDER ALL STATE REMEDIES EXHAUSTED AND PROCEED
TO HEAR AND DETERMINE THE CAUSE, INCLUDING ANY APPLICATION FOR BAIL
PENDING THAT COURT'S FINAL DISPOSITION OF THE MATTER.  THE CLERK IS
DIRECTED TO ISSUE THE JUDGMENT FORTHWITH. 
..END :




















STRELICH V. HEINZE 369 U.S. 36 


NO. 868, MISC.  DECIDED FEBRUARY 26, 1962. 


STRELICH V. HEINZE, WARDEN, ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :



















HARPER V. BANNAN 369 U.S. 36 


NO. 884, MISC.  DECIDED FEBRUARY 26, 1962. 


HARPER V. BANNAN, WARDEN. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :


















EASTERN EXPRESS, INC. V. UNITED STATES 369 U.S. 37 


NO. 623.  DECIDED FEBRUARY 26, 1962 - 198 F. SUPP. 256, AFFIRMED. 


EASTERN EXPRESS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF INDIANA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















CHEWNING V. CUNNINGHAM 368 U.S. 443 


NO. 63.  ARGUED DECEMBER 4-5, 1961 - DECIDED FEBRUARY 19, 1962 -
REVERSED. 


IN A TRIAL IN A VIRGINIA COURT AT WHICH HE REQUESTED BUT WAS DENIED
COUNSEL, PETITIONER WAS CONVICTED OF HAVING BEEN THREE TIMES CONVICTED
AND SENTENCED FOR FELONIES, AND HE WAS SENTENCED TO 10 YEARS'
ADDITIONAL IMPRISONMENT.  THE APPLICABLE STATUTE PROVIDES THAT, WHEN IT
APPEARS THAT A PERSON CONVICTED OF AN OFFENSE HAS BEEN PREVIOUSLY
SENTENCED "TO A LIKE PUNISHMENT," HE MAY BE TRIED ON AN INFORMATION
THAT ALLEGES "THE EXISTENCE OF RECORDS OF PRIOR CONVICTIONS AND THE
IDENTITY OF THE PRISONER NAMED IN EACH," AND IT LEAVES TO THE TRIAL
COURT'S DISCRETION THE LENGTH OF THE SENTENCE WHICH MAY BE IMPOSED FOR
THREE OR MORE CONVICTIONS.  UNDER VIRGINIA LAW, NOT ONLY THE IDENTITY
OF THE PRISONER AND THE EXISTENCE OF THE RECORDS BUT ALSO THE VALIDITY
OF THE PRIOR CONVICTIONS MAY BE AT ISSUE IN SUCH A PROCEEDING.  HELD:
TRIAL ON A CHARGE OF BEING A HABITUAL CRIMINAL IS SUCH A SERIOUS ONE,
THE ISSUES PRESENTED UNDER VIRGINIA'S STATUTE ARE SO COMPLEX, AND THE
POTENTIAL PREJUDICE RESULTING FROM THE ABSENCE OF COUNSEL IS SO GREAT
THAT PETITIONER'S TRIAL AND CONVICTION WITHOUT COUNSEL VIOLATED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 443-447. 

CHEWNING V. CUNNINGHAM, PENITENTIARY SUPERINTENDENT. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS SENTENCED TO 10 YEARS IN PRISON UNDER VIRGINIA'S
RECIDIVIST STATUTE.  VA. CODE, 1950, SEC. 53-296.  THIS STATUTE
PROVIDES THAT WHEN IT APPEARS THAT A PERSON CONVICTED OF AN OFFENSE HAS
BEEN PREVIOUSLY SENTENCED "TO A LIKE PUNISHMENT," HE MAY BE TRIED ON AN
INFORMATION THAT ALLEGES "THE EXISTENCE OF RECORDS OF PRIOR CONVICTIONS
AND THE IDENTITY OF THE PRISONER WITH THE PERSON NAMED IN EACH."  THE
STATUTE GOES ON TO PROVIDE THAT THE PRISONER MAY DENY THE EXISTENCE OF
ANY SUCH RECORDS, OR THAT HE IS THE SAME PERSON NAMED THEREIN, OR
BOTH. 

IF THE EXISTENCE OF THE RECORDS IS DENIED, THE COURT DETERMINES
WHETHER THEY EXIST.  IF THE COURT SO FINDS AND THE PRISONER DENIES HE
IS THE PERSON MENTIONED IN THE RECORDS OR REMAINS SILENT, A JURY IS
IMPANELED TO TRY THAT ISSUE.  IF THE JURY FINDS HE IS THE SAME PERSON
AND IF HE HAS ONE PRIOR CONVICTION, THE COURT MAY SENTENCE HIM FOR AN
ADDITIONAL TERM NOT TO EXCEED FIVE YEARS.  IF HE HAS BEEN TWICE
SENTENCED, THE COURT MAY IMPOSE SUCH ADDITIONAL SENTENCE AS IT "MAY
DEEM PROPER." 

PETITIONER, THEN IMPRISONED IN VIRGINIA, WAS CHARGED WITH HAVING BEEN
THREE TIMES CONVICTED OF AND SENTENCED FOR A FELONY.  HE WAS
ACCORDINGLY TRIED UNDER THE RECIDIVIST STATUTE; AND HE IS NOW SERVING
THE SENTENCE IMPOSED AT THAT TRIAL.  HE BROUGHT THIS HABEAS CORPUS
PROCEEDING IN THE VIRGINIA COURTS TO CHALLENGE THE LEGALITY OF THAT
SENTENCE.  THE CRUX OF HIS COMPLAINT WAS THAT HE WAS TRIED AND
CONVICTED WITHOUT HAVING HAD THE BENEFIT AND AID OF COUNSEL, THOUGH HE
HAD REQUESTED ONE.  (FN1)  THE LAW AND EQUITY COURT OF RICHMOND DENIED
RELIEF; AND THE SUPREME COURT OF APPEALS OF VIRGINIA REFUSED A WRIT OF
ERROR.  WHILE THE GROUNDS FOR THE ACTION OF THE SUPREME COURT OF
APPEALS ARE NOT DISCLOSED, THE LAW AND EQUITY COURT WROTE AN OPINION,
MAKING CLEAR THAT IT RULED ON THE FEDERAL CONSTITUTIONAL CLAIM: 

"AS TO THE MANDATE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES, HERE RELIED UPON, THE CONVERSE HAS BEEN
ADJUDICATED.  IN GRYGER V. BURKE, 334 U.S. 728, WHERE RELEASE ON HABEAS
CORPUS WAS SOUGHT ON THE GROUND THAT PETITIONER WAS WITHOUT COUNSEL AT
HIS RECIDIVIST HEARING, MR. JUSTICE JACKSON SAID, IN PART, AS FOLLOWS
(AT P. 731): 

"'  ...  THE STATE'S FAILURE TO PROVIDE COUNSEL FOR THIS PETITIONER
ON HIS PLEA TO THE FOURTH OFFENDER CHARGE DID NOT RENDER HIS CONVICTION
AND SENTENCE INVALID.' 

"THIS HOLDING WAS ADHERED TO IN CHANDLER V. FRETAG, 348 U.S. 3, WHERE
IT WAS DECIDED THAT, WHILE A STATE IS NOT REQUIRED UNDER THE FOURTEENTH
AMENDMENT TO FURNISH COUNSEL, IT CANNOT DENY THE DEFENDANT IN A
REPEATER HEARING OF THE RIGHT TO BE HEARD BY COUNSEL OF HIS OWN
CHOICE." 

THE LAW AND EQUITY COURT, WHILE CONCEDING THAT A PROCEEDING UNDER THE
RECIDIVIST STATUTE WAS "CRIMINAL" AND THAT IN THAT PROCEEDING THE
ACCUSED WAS ENTITLED TO MOST OF THE PROTECTIONS AFFORDED DEFENDANTS IN
CRIMINAL TRIALS, CONCLUDED THAT PETITIONER WAS NOT ENTITLED TO HAVE
COUNSEL APPOINTED TO ASSIST HIM, SINCE THE PROCEEDING WAS "ONLY
CONNECTED WITH THE MEASURE OF PUNISHMENT FOR THE LAST-COMMITTED
CRIME."  CF. FITZGERALD V. SMYTH, 194 VA. 681, 689-690, 74 S.E.2D 810,
816. 

WE PUT TO ONE SIDE GRYGER V. BURKE, 334 U.S. 728, ON WHICH THE
VIRGINIA COURT RELIED.  IN THAT CASE, IDENTITY WAS THE ONLY ISSUE AND
THE SPECIALIZED CIRCUMSTANCES SEEMED TO A MAJORITY NOT TO REQUIRE THE
APPOINTMENT OF COUNSEL.  UNDER THE PRESENT RECIDIVIST STATUTE, THE
SITUATION IS QUITE DIFFERENT.  AS WE HAVE SEEN, THE "EXISTENCE" OR
RECORDS OF PRIOR CONVICTIONS OF THE KIND DESCRIBED IN THE STATUTE IS AN
ISSUE TENDERED IN VIRGINIA.  WE SAID OF A LIKE ISSUE IN REYNOLDS V.
COCHRAN, 365 U.S. 525, 531, "  ...  IF PETITIONER HAD BEEN ALLOWED THE
ASSISTANCE OF HIS COUNSEL WHEN HE FIRST ASKED FOR IT, WE CANNOT KNOW
THAT COUNSEL COULD NOT HAVE FOUND DEFECTS IN THE 1934 CONVICTION THAT
WOULD HAVE PRECLUDED ITS ADMISSION IN A MULTIPLE-OFFENDER PROCEEDING." 
IN THAT CASE WE ALSO POINTED OUT THAT THE ISSUE OF "IDENTITY" MAY AT
TIMES PRESENT DIFFICULT LOCAL LAW ISSUES, AS FOR EXAMPLE, "WHETHER THE
SECOND-OFFENDER STATUTE MAY BE APPLIED TO REIMPRISON A PERSON WHO HAS
COMPLETELY SATISFIED THE SENTENCE IMPOSED UPON HIS SECOND CONVICTION
AND HAS BEEN DISCHARGED FROM CUSTODY."  ID., P. 532. 

IN REYNOLDS V. COCHRAN, SUPRA, THE ACCUSED HAD HIS OWN LAWYER AND
ONLY ASKED FOR A CONTINUANCE.  BUT THE HOLDING IN THE CASE APPLIES
EQUALLY TO AN ACCUSED FACED WITH AN INFORMATION UNDER VIRGINIA'S
RECIDIVIST STATUTE AND WHO HAS NO LAWYER.  IT IS "THE NATURE OF THE
CHARGE" (TOMKINS V. MISSOURI, 323 U.S. 485, 488) THAT UNDERLINES THE
NEED FOR COUNSEL.  IN TRIALS OF THIS KIND THE LABYRINTH OF THE LAW IS,
OR MAY BE, TOO INTRICATE FOR THE LAYMAN TO MASTER.  ID., PP. 488-489;
WILLIAMS V. KAISER, 323 U.S. 471, 474.  VIRGINIA HAS HELD THAT THE
VALIDITY OF ANY OF THE PRIOR CONVICTIONS, USED TO BRING THE MULTIPLE
OFFENDER STATUTE INTO PLAY, MAY BE INQUIRED INTO.  SEE, E.G., WESLEY V.
COMMONWEALTH, 190 VA. 268, 272-274, 56 S.E.2D 362, 364.  THESE MAY
INVOLVE JUDGMENTS OF CONVICTION IN ANY STATE OR FEDERAL COURT IN THE
NATION.  COUNSEL, WHOM WE APPOINTED TO REPRESENT PETITIONER HERE, HAS
SHOWN THE WIDE VARIETY OF PROBLEMS THAT MAY BE TENDERED.  IN VIRGINIA,
A TRIAL UNDER THIS STATUTE MAY PRESENT QUESTIONS SUCH AS WHETHER THE
COURTS RENDERING THE PRIOR JUDGMENTS HAD JURISDICTION OVER THE OFFENSES
AND OVER THE DEFENDANT AND WHETHER THESE OFFENSES WERE PUNISHABLE BY A
PENITENTIARY SENTENCE.  WESLEY V. COMMONWEALTH, SUPRA, 190 VA., AT 273,
56 S.W.2D, AT 364.  IN VIRGINIA, A SENTENCE IN EXCESS OF THE ONE THE
COURT RENDERING IT HAD POWER TO IMPOSE IS "VOID FOR THE EXCESS ONLY." 
SEE ROYSTER V. SMITH 195 VA. 228, 235, 77 S.E.2D 855, 858-859.  IN
VIRGINIA A COURT IN CONSIDERING WHETHER THE PRIOR CONVICTIONS AFFORDED
A PROPER BASIS ON WHICH TO INVOKE THE RECIDIVIST STATUTE HAS CONSIDERED
WHETHER, IN A PRIOR TRIAL, THE DEFENDANT WAS REPRESENTED BY COUNSEL AND
WHETHER IT WAS A FAIR AND IMPARTIAL TRIAL.  WILLOUGHBY V. SMITH, 194
VA. 267, 271, 72 S.E.2D 636, 639.  IN VIRGINIA, A PRIOR CONVICTION THAT
IS ON APPEAL MAY NOT BE THE PROPER BASIS FOR A RECIDIVIST CHARGE. 
WHITE V. COMMONWEALTH, 79 VA. 611.  AND THERE APPEARS TO BE A QUESTION
WHETHER TWO PRIOR CONVICTIONS RENDERED THE SAME DAY OR AT THE SAME TERM
COULD BOTH BE USED IN A VIRGINIA MULTIPLE-OFFENDER PROSECUTION. 
COMMONWEALTH V. WELSH, 4 VA. 57.  SEE DYE V. SKEEN, 135 W.VA. 90, 102
103, 62 S.E.2D 681, 688-689. 

DOUBLE JEOPARDY AND EX POST FACTO APPLICATION OF A LAW ARE ALSO
QUESTIONS WHICH, AS INDICATED IN REYNOLDS V. COCHRAN, SUPRA, P. 529,
MAY WELL BE CONSIDERED BY AN IMAGINATIVE LAWYER, WHO LOOKS CRITICALLY
AT THE LAYER OF PRIOR CONVICTIONS ON WHICH THE RECIDIVIST CHARGE
RESTS.  WE INTIMATE NO OPINION ON WHETHER ANY OF THE PROBLEMS MENTIONED
WOULD ARISE ON PETITIONER'S TRIAL NOR, IF SO, WHETHER ANY WOULD HAVE
MERIT.  WE ONLY CONCLUDE THAT A TRIAL ON A CHARGE OF BEING A HABITUAL
CRIMINAL IS SUCH A SERIOUS ONE (CHANDLER V. FRETAG, 348 U.S. 3), THE
ISSUES PRESENTED UNDER VIRGINIA'S STATUTE SO COMPLEX, AND THE POTENTIAL
PREJUDICE RESULTING FROM THE ABSENCE OF COUNSEL SO GREAT THAT THE RULE
WE HAVE FOLLOWED CONCERNING THE APPOINTMENT OF COUNSEL IN OTHER TYPES
OF CRIMINAL TRIALS (FN2) IS EQUALLY APPLICABLE HERE.  REVERSED. 

FN1  HE APPARENTLY DID NOT APPEAL FROM THE CONVICTION.  FITZGERALD V.
SMYTH, 194 VA.  681, 74 S.E.2D 810, HOWEVER, ALLOWS THE DEPRIVATION OF
A CONSTITUTIONAL RIGHT TO BE RAISED BY HABEAS CORPUS. 

FN2  WILLIAMS V. KAISER, SUPRA; TOMKINS V. MISSOURI, SUPRA; TOWNSEND
V. BURKE, 334 U.S. 736; HUDSON V. NORTH CAROLINA, 363 U.S. 697; MCNEAL
V. CULVER, 365 U.S. 109. 

(FOR OPINION OF MR. JUSTICE HARLAN, CONCURRING IN THE RESULT, SEE
NOS. 56 AND 57, OYLER V. BOLES AND CRABTREE V. BOLES, POST, P. 457.) 
..END :























OYLER V. BOLES 368 U.S. 448 


NO. 56.  ARGUED DECEMBER 4, 1961 - DECIDED FEBRUARY 19, 1962* -
AFFIRMED. 

*TOGETHER WITH NO. 57, CRABTREE V. BOLES, WARDEN, ALSO ON CERTIORARI
TO THE SAME COURT. 


WEST VIRGINIA'S HABITUAL CRIMINAL STATUTE PROVIDES FOR A MANDATORY
LIFE SENTENCE UPON THE THIRD CONVICTION "OF A CRIME PUNISHABLE BY
CONFINEMENT IN A PENITENTIARY."  THE INCREASED PENALTY IS TO BE INVOKED
BY AN INFORMATION FILED BY THE PROSECUTING ATTORNEY "IMMEDIATELY UPON
CONVICTION AND BEFORE SENTENCE."  IN SUCH PROCEEDINGS, IN WHICH THEY
WERE REPRESENTED BY COUNSEL AND DID NOT REQUEST CONTINUANCES OR RAISE
ANY MATTERS IN DEFENSE BUT DID CONCEDE THE APPLICABILITY OF THE STATUTE
TO THE CIRCUMSTANCES OF THEIR CASES, PETITIONERS WERE SENTENCED TO LIFE
IMPRISONMENT.  SUBSEQUENTLY THEY PETITIONER THE STATE SUPREME COURT FOR
WRITS OF HABEAS CORPUS, ALLEGING THAT THE ACT HAD BEEN APPLIED WITHOUT
ADVANCE NOTICE AND TO ONLY A MINORITY OF THOSE SUBJECT TO ITS
PROVISIONS, IN VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMENDMENT.  THEIR PETITIONS WERE DENIED. 
HELD: 

1.  DUE PROCESS DOES NOT REQUIRE ADVANCE NOTICE THAT THE TRIAL ON THE
SUBSTANTIVE OFFENSE WILL BE FOLLOWED BY AN HABITUAL CRIMINAL
ACCUSATION.  IT DOES REQUIRE A REASONABLE OPPORTUNITY TO DEFEND AGAINST
SUCH AN ACCUSATION; BUT THE RECORDS SHOW THAT PETITIONERS WERE NOT
DENIED SUCH AN OPPORTUNITY.  PP. 451-454. 

2.  THE FAILURE TO PROCEED AGAINST OTHER OFFENDERS BECAUSE OF A LACK
OF KNOWLEDGE OF PRIOR OFFENSES OR BECAUSE OF THE EXERCISE OF REASONABLE
SELECTIVITY IN ENFORCEMENT DOES NOT DENY EQUAL PROTECTION TO PERSONS
WHO ARE PROSECUTED, AND PETITIONERS DID NOT ALLEGE THAT THE FAILURE TO
PROSECUTE OTHERS WAS DUE TO ANY OTHER REASON.  PP. 454-456. 

OYLER V. BOLES, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS IN THESE CONSOLIDATED CASES ARE SERVING LIFE
SENTENCES IMPOSED UNDER WEST VIRGINIA'S HABITUAL CRIMINAL STATUTE. 
THIS ACT PROVIDES FOR A MANDATORY LIFE SENTENCE UPON THE THIRD
CONVICTION "OF A CRIME PUNISHABLE BY CONFINEMENT IN A PENITENTIARY." 
(FN1)  THE INCREASED PENALTY IS TO BE INVOKED BY AN INFORMATION FILED
BY THE PROSECUTING ATTORNEY "IMMEDIATELY UPON CONVICTION AND BEFORE
SENTENCE."  (FN2)  ALLEGING THAT THIS ACT HAD BEEN APPLIED WITHOUT
ADVANCE NOTICE AND TO ONLY A MINORITY OF THOSE SUBJECT TO ITS
PROVISIONS, IN VIOLATION RESPECTIVELY OF THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT, THE PETITIONERS FILED
SEPARATE PETITIONS FOR WRITS OF HABEAS CORPUS IN THE SUPREME COURT OF
APPEALS OF WEST VIRGINIA.  BOTH OF THEIR PETITIONS WERE DENIED WITHOUT
OPINION.  UNLIKE CHEWNING V. CUNNINGHAM, ANTE, P. 443, HERE EACH OF THE
PETITIONERS WAS REPRESENTED BY COUNSEL AT THE TIME HE WAS SENTENCED. 
FINDING THE CASES REPRESENTATIVE OF THE MANY RECIDIVIST CASES THAT HAVE
BEEN DOCKETED IN THIS COURT THE PAST FEW TERMS, WE GRANTED CERTIORARI. 
365 U.S. 810.  WE NOW AFFIRM THE JUDGMENT IN EACH CASE. 

WILLIAM OYLER, THE PETITIONER IN NO. 56, WAS CONVICTED OF MURDER IN
THE SECOND DEGREE ON FEBRUARY 5, 1953, WHICH OFFENSE CARRIED A PENALTY
OF FROM 5 TO 18 YEARS' IMPRISONMENT.  SENTENCE WAS DEFERRED, AND ON
FEBRUARY 11 HIS MOTION FOR A NEW TRIAL WAS OVERRULED.  ON THAT SAME
DATE THE PROSECUTING ATTORNEY REQUESTED AND WAS GRANTED LEAVE TO FILE
AN INFORMATION IN WRITING ALLEGING THAT OYLER WAS THE SAME PERSON WHO
HAD SUFFERED THREE PRIOR CONVICTIONS IN PENNSYLVANIA WHICH WERE
PUNISHABLE BY CONFINEMENT IN A PENITENTIARY.  AFTER BEING CAUTIONED AS
TO THE EFFECT OF SUCH INFORMATION, OYLER, ACCOMPANIED BY HIS COUNSEL,
ACKNOWLEDGED IN OPEN COURT THAT HE WAS THE PERSON NAMED IN THE
INFORMATION.  THE COURT THEN DETERMINED THAT THE DEFENDANT HAD THRICE
BEEN CONVICTED OF CRIMES PUNISHABLE BY CONFINEMENT IN A PENITENTIARY
AND SENTENCED HIM TO LIFE IMPRISONMENT.  IN SO DOING THE COURT
INDICATED THAT THE LIFE SENTENCE WAS MANDATORY UNDER THE STATUTE AND
RECOMMENDED THAT OYLER BE PAROLED AS SOON AS HE WAS ELIGIBLE.  IN 1960
OYLER FILED A HABEAS CORPUS APPLICATION IN THE SUPREME COURT OF APPEALS
ALLEGING A DENIAL OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT IN THAT
HE HAD NOT BEEN GIVEN ADVANCE NOTICE OF HIS PROSECUTION AS A RECIDIVIST
WHICH PREVENTED HIM FROM SHOWING THE INAPPLICABILITY OF THE HABITUAL
CRIMINAL LAW.  THE STATUTE WAS ALLEGED TO BE INAPPLICABLE BECAUSE HE
HAD NEVER BEEN SENTENCED TO IMPRISONMENT IN A PENITENTIARY ALTHOUGH HE
HAD BEEN CONVICTED OF CRIMES SUBJECTING HIM TO THE POSSIBILITY OF SUCH
SENTENCE.  (FN3)  HE ALSO ATTACKED HIS SENTENCE ON THE EQUAL PROTECTION
GROUND PREVIOUSLY SET FORTH. 

IN 1957 PAUL CRABTREE, THE PETITIONER IN NO. 57, PLEADED GUILTY TO
FORGING A $35 CHECK, WHICH OFFENSE CARRIED A PENALTY OF FROM 2 TO 10
YEARS' IMPRISONMENT.  SENTENCE WAS DEFERRED, AND A WEEK LATER THE
PROSECUTING ATTORNEY INFORMED THE COURT THAT CRABTREE HAD SUFFERED TWO
PREVIOUS FELONY CONVICTIONS, ONE IN THE STATE OF WASHINGTON AND ONE IN
WEST VIRGINIA.  THE TRIAL JUDGE, AFTER CAUTIONING CRABTREE OF THE
EFFECT OF THE INFORMATION AND HIS RIGHTS UNDER IT, INQUIRED IF HE WAS
IN FACT THE ACCUSED PERSON.  CRABTREE, WHO HAD BEEN REPRESENTED BY
COUNSEL THROUGHOUT, ADMITTED IN OPEN COURT THAT HE WAS SUCH PERSON. 
UPON THIS ADMISSION AND THE ACCUSED'S FURTHER STATEMENT THAT HE HAD
NOTHING MORE TO SAY, THE COURT PROCEEDED TO SENTENCE HIM TO LIFE
IMPRISONMENT.  IN 1960 CRABTREE SOUGHT HABEAS CORPUS RELIEF IN THE
SUPREME COURT OF APPEALS CLAIMING DENIAL OF DUE PROCESS BECAUSE OF THE
ABSENCE OF NOTICE WHICH PREVENTED HIM FROM SHOWING HE HAD NEVER BEEN
CONVICTED IN WALLA WALLA COUNTY, WASHINGTON, AS HAD BEEN ALLEGED IN THE
INFORMATION.  (FN4)  LIKE OYLER, HE ALSO RAISED THE EQUAL PROTECTION
GROUND. 

                                             I. 

PETITIONERS RECOGNIZE THAT THE CONSTITUTIONALITY OF THE PRACTICE OF
INFLICTING SEVERER CRIMINAL PENALTIES UPON HABITUAL OFFENDERS IS NO
LONGER OPEN TO SERIOUS CHALLENGE; (FN5) HOWEVER, THEY CONTEND THAT IN
WEST VIRGINIA SUCH PENALTIES ARE BEING INVOKED IN AN UNCONSTITUTIONAL
MANNER.  IT IS PETITIONER'S POSITION THAT PROCEDURAL DUE PROCESS UNDER
THE FOURTEENTH AMENDMENT REQUIRES NOTICE OF THE HABITUAL CRIMINAL
ACCUSATION BEFORE THE TRIAL ON THE THIRD OFFENSE OR AT LEAST IN TIME TO
AFFORD A REASONABLE OPPORTUNITY TO MEET THE RECIDIVIST CHARGE. 

EVEN THOUGH AN HABITUAL CRIMINAL CHARGE DOES NOT STATE A SEPARATE
OFFENSE, THE DETERMINATION OF WHETHER ONE IS AN HABITUAL CRIMINAL IS
"ESSENTIALLY INDEPENDENT" OF THE DETERMINATION OF GUILT ON THE
UNDERLYING SUBSTANTIVE OFFENSE.  CHANDLER V. FRETAG, 348 U.S. 3, 8
(1954).  THUS, ALTHOUGH THE HABITUAL CRIMINAL ISSUE MAY BE COMBINED
WITH THE TRIAL OF THE FELONY CHARGE, "IT IS A DISTINCT ISSUE, AND IT
MAY APPROPRIATELY BE THE SUBJECT OF SEPARATE DETERMINATION."  GRAHAM V.
WEST VIRGINIA, 224 U.S. 616, 625 (1912).  IF WEST VIRGINIA CHOOSES TO
HANDLE THE MATTER AS TWO SEPARATE PROCEEDINGS, DUE PROCESS DOES NOT
REQUIRE ADVANCE NOTICE THAT THE TRIAL ON THE SUBSTANTIVE OFFENSE WILL
BE FOLLOWED BY AN HABITUAL CRIMINAL PROCEEDING.  (FN6)  SEE GRAHAM V.
WEST VIRGINIA, SUPRA. 

NEVERTHELESS, A DEFENDANT MUST RECEIVE REASONABLE NOTICE AND AN
OPPORTUNITY TO BE HEARD RELATIVE TO THE RECIDIVIST CHARGE EVEN IF DUE
PROCESS DOES NOT REQUIRE THAT NOTICE BE GIVEN PRIOR TO THE TRIAL ON THE
SUBSTANTIVE OFFENSE.  SUCH REQUIREMENTS ARE IMPLICIT WITHIN OUR
DECISIONS IN CHEWNING V. CUNNINGHAM, SUPRA; REYNOLDS V. COCHRAN, 365
U.S. 525 (1961); CHANDLER V. FRETAG, SUPRA.  ALTHOUGH THESE CASES WERE
SPECIFICALLY CONCERNED WITH THE RIGHT TO ASSISTANCE OF COUNSEL, IT
WOULD HAVE BEEN AN IDLE ACCOMPLISHMENT TO SAY THAT DUE PROCESS REQUIRES
COUNSEL BUT NOT THE RIGHT TO REASONABLE NOTICE AND OPPORTUNITY TO BE
HEARD. 

AS INTERPRETED BY ITS HIGHEST COURT, WEST VIRGINIA'S RECIDIVIST
STATUTE DOES NOT REQUIRE THE STATE TO NOTIFY THE DEFENDANT PRIOR TO
TRIAL ON THE SUBSTANTIVE OFFENSE THAT INFORMATION OF HIS PRIOR
CONVICTIONS WILL BE PRESENTED IN THE EVENT HE IS FOUND GUILTY.  (FN7)
THUS NOTICE OF THE STATE'S INVOCATION OF THE STATUTE IS FIRST BROUGHT
HOME TO THE ACCUSED WHEN, AFTER CONVICTION ON THE SUBSTANTIVE OFFENSE
BUT BEFORE SENTENCING, THE INFORMATION IS READ TO HIM IN OPEN COURT AS
WAS DONE HERE.  AT THIS POINT PETITIONERS WERE REQUIRED TO PLEAD TO THE
INFORMATION.  THE STATUTE EXPRESSLY PROVIDES FOR A JURY TRIAL ON THE
ISSUE OF IDENTITY IF THE ACCUSED EITHER DENIES HE IS THE PERSON NAMED
IN THE INFORMATION OR JUST REMAINS SILENT.  (FN8) 

BUT THE PETITIONERS, WHO WERE REPRESENTED BY COUNSEL, NEITHER DENIED
THEY WERE THE PERSONS NAMED NOR REMAINED SILENT.  NOR DID THEY OBJECT
OR SEEK A CONTINUANCE ON THE GROUND THAT THEY HAD NOT RECEIVED ADEQUATE
NOTICE AND NEEDED MORE TIME TO DETERMINE HOW TO RESPOND WITH RESPECT TO
THE ISSUE OF THEIR IDENTITY.  RATHER, BOTH PETITIONERS RENDERED FURTHER
INQUIRY ALONG THIS LINE UNNECESSARY BY THEIR ACKNOWLEDGMENTS IN OPEN
COURT THAT THEY WERE THE SAME PERSONS WHO HAD PREVIOUSLY BEEN
CONVICTED.  IN SUCH CIRCUMSTANCES THE PETITIONERS ARE IN NO POSITION
NOW TO ASSERT THAT THEY WERE NOT GIVEN A FAIR OPPORTUNITY TO RESPOND TO
THE ALLEGATIONS AS TO THEIR IDENTITY. 

THEY ASSERT, HOWEVER, THAT THEY WOULD HAVE RAISED OTHER DEFENSES IF
THEY HAD BEEN GIVEN ADEQUATE NOTICE OF THE RECIDIVIST CHARGES.  IT IS,
OF COURSE, TRUE THAT IDENTITY IS NOT THE ONLY ISSUE PRESENTED IN A
RECIDIVIST PROCEEDING, FOR, AS POINTED OUT BY MR. JUSTICE HUGHES (LATER
CHIEF JUSTICE) WHEN THIS COURT FIRST REVIEWED WEST VIRGINIA'S HABITUAL
CRIMINAL LAW, THIS STATUTE CONTEMPLATES VALID CONVICTIONS WHICH HAVE
NOT BEEN SUBSEQUENTLY NULLIFIED.  GRAHAM V. WEST VIRGINIA, SUPRA.  A
LIST OF THE MORE OBVIOUS ISSUES WOULD ALSO INCLUDE SUCH MATTERS AS
WHETHER THE PREVIOUS CONVICTIONS ARE OF THE CHARACTER CONTEMPLATED BY
WEST VIRGINIA'S STATUTE AND WHETHER THE REQUIRED PROCEDURE HAS BEEN
FOLLOWED IN INVOKING IT.  INDEED, WE MAY ASSUME THAT ANY INFIRMITIES IN
THE PRIOR CONVICTIONS OPEN TO COLLATERAL ATTACK COULD HAVE BEEN REACHED
IN THE RECIDIVIST PROCEEDINGS, EITHER BECAUSE THE STATE LAW SO PERMITS
(FN9) OR DUE PROCESS SO REQUIRES.  BUT THIS IS A QUESTION WE NEED NOT
AND DO NOT DECIDE, FOR NEITHER THE PETITIONERS NOR THEIR COUNSEL
ATTEMPTED DURING THE RECIDIVIST PROCEEDINGS TO RAISE THE ISSUES WHICH
THEY NOW SEEK TO RAISE OR, INDEED, ANY OTHER ISSUES.  THEY WERE NOT,
THEREFORE, DENIED THE RIGHT TO DO SO.  THE PETITIONERS' CLAIM THAT THEY
WERE DEPRIVED OF DUE PROCESS BECAUSE OF INADEQUATE OPPORTUNITY TO
CONTEST THE HABITUAL CRIMINAL ACCUSATION MUST BE REJECTED IN THESE
CASES.  EACH OF THE PETITIONERS HAD A LAWYER AT HIS SIDE, AND NEITHER
THE PETITIONERS NOR THEIR COUNSEL SOUGHT IN ANY WAY TO RAISE ANY
MATTERS IN DEFENSE OR INTIMATED THAT A CONTINUANCE WAS NEEDED TO
INVESTIGATE THE EXISTENCE OF ANY POSSIBLE DEFENSE.  ON THE CONTRARY,
THE RECORD CLEARLY SHOWS THAT BOTH PETITIONERS PERSONALLY AND THROUGH
THEIR LAWYERS CONCEDED THE APPLICABILITY OF THE LAW'S SANCTIONS TO THE
CIRCUMSTANCES OF THEIR CASES. 

              II. 

PETITIONERS ALSO CLAIM THEY WERE DENIED THE EQUAL PROTECTION OF LAW
GUARANTEED BY THE FOURTEENTH AMENDMENT.  IN HIS PETITION FOR A WRIT OF
HABEAS CORPUS TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA, OYLER
STATED: 

"PETITIONER WAS DISCRIMINATED AGAINST AS AN HABITUAL CRIMINAL IN THAT
FROM JANUARY, 1940, TO JUNE, 1955, THERE WERE SIX MEN SENTENCED IN THE
TAYLOR COUNTY CIRCUIT COURT WHO WERE SUBJECT TO PROSECUTION AS HABITUAL
OFFENDERS, PETITIONER WAS THE ONLY MAN THUS SENTENCED DURING THIS
PERIOD.  IT IS A MATTER OF RECORD THAT THE FIVE MEN WHO WERE NOT
PROSECUTED AS HABITUAL CRIMINALS DURING THIS PERIOD, ALL HAD THREE OR
MORE FELONY CONVICTIONS AND SENTENCES AS ADULTS, AND PETITIONER'S
FORMER CONVICTIONS WERE A RESULT OF JUVENILE COURT ACTIONS. 

     *         *         *         *         * 

"5. THE PETITIONER WAS DISCRIMINATED AGAINST BY SELECTIVE USE OF A
MANDATORY STATE STATUTE, IN THAT 904 MEN WHO WERE KNOWN OFFENDERS
THROUGHOUT THE STATE OF WEST VIRGINIA WERE NOT SENTENCED AS REQUIRED BY
THE MANDATORY STATUTES, CHAPTER 61, ARTICLE 11, SECTIONS 18 AND 19 OF
THE CODE.  EQUAL PROTECTION AND EQUAL JUSTICE WAS DENIED." 

STATISTICAL DATA BASED ON PRISON RECORDS WERE APPENDED TO THE
PETITION TO SUPPORT THE LATTER ALLEGATION.  CRABTREE IN HIS PETITION
INCLUDED SIMILAR STATISTICAL SUPPORT AND ALLEGED: 

"THE SAID STATUTE ARE ADMINISTERED AND APPLIED IN SUCH A MANNER AS TO
BE IN VIOLATION OF EQUAL PROTECTION AND EQUAL JUSTICE THEREFOR IN
CONFLICT WITH THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES." 

THUS PETITIONERS' CONTENTION IS THAT THE HABITUAL CRIMINAL STATUTE
IMPOSES A MANDATORY DUTY ON THE PROSECUTING AUTHORITIES TO SEEK THE
SEVERER PENALTY AGAINST ALL PERSONS COMING WITHIN THE STATUTORY
STANDARDS BUT THAT IT IS DONE ONLY IN A MINORITY OF CASES.  (FN10)
THIS, PETITIONERS ARGUE, DENIES EQUAL PROTECTION TO THOSE PERSONS
AGAINST WHOM THE HEAVIER PENALTY IS ENFORCED.  WE NOTE THAT IT IS NOT
STATED WHETHER THE FAILURE TO PROCEED AGAINST OTHER THREE-TIME
OFFENDERS WAS DUE TO LACK OF KNOWLEDGE OF THE PRIOR OFFENSES ON THE
PART OF THE PROSECUTORS OR WAS THE RESULT OF A DELIBERATE POLICY OF
PROCEEDING ONLY IN A CERTAIN CLASS OF CASES OR AGAINST SPECIFIC
PERSONS.  THE STATISTICS MERELY SHOW THAT ACCORDING TO PENITENTIARY
RECORDS A HIGH PERCENTAGE OF THOSE SUBJECT TO THE LAW HAVE NOT BEEN
PROCEEDED AGAINST.  THERE IS NO INDICATION THAT THESE RECORDS OF
PREVIOUS CONVICTIONS, WHICH MAY NOT HAVE BEEN COMPILED UNTIL AFTER THE
THREE-TIME OFFENDERS HAD REACHED THE PENITENTIARY, WERE AVAILABLE TO
THE PROSECUTORS.  (FN11)  HENCE THE ALLEGATIONS SET OUT NO MORE THAN A
FAILURE TO PROSECUTE OTHERS BECAUSE OF A LACK OF KNOWLEDGE OF THEIR
PRIOR OFFENSES.  THIS DOES NOT DENY EQUAL PROTECTION DUE PETITIONERS
UNDER THE FOURTEENTH AMENDMENT.  SEE SANDERS V. WATERS, 199 F.2D 317
(C.A. 10TH CIR. 1952); OREGON V. HICKS, 213 ORE.  619, 325 P.2D 794
(1958). 

MOREOVER, THE CONSCIOUS EXERCISE OF SOME SELECTIVITY IN ENFORCEMENT
IS NOT IN ITSELF A FEDERAL CONSTITUTIONAL VIOLATION.  EVEN THOUGH THE
STATISTICS IN THIS CASE MIGHT IMPLY A POLICY OF SELECTIVE ENFORCEMENT,
IT WAS NOT STATED THAT THE SELECTION WAS DELIBERATELY BASED UPON AN
UNJUSTIFIABLE STANDARD SUCH AS RACE, RELIGION, OR OTHER ARBITRARY
CLASSIFICATION.  THEREFORE GROUNDS SUPPORTING A FINDING OF A DENIAL OF
EQUAL PROTECTION WERE NOT ALLEGED.  OREGON V. HICKS, SUPRA; CF. SNOWDEN
V. HUGHES, 321 U.S. 1 (1944); YICK WO V. HOPKINS, 118 U.S. 356
(1886)(BY IMPLICATION). 

THE OTHER POINTS RAISED BY PETITIONERS, SUCH AS THE MISSTATEMENT OF
THE WASHINGTON COUNTY IN WHICH CRABTREE WAS CONVICTED AND THE FACT THAT
OYLER ACTUALLY SERVED IN A PENNSYLVANIA CORRECTIONAL HOME RATHER THAN A
PENITENTIARY, ALL INVOLVE STATE QUESTIONS WITH WHICH WE ARE NOT
CONCERNED.  SINCE THE HIGHEST COURT OF WEST VIRGINA HANDED DOWN NO
OPINION, WE DO NOT KNOW WHAT QUESTIONS ITS JUDGMENT FORECLOSED.  IF ANY
REMAIN OPEN, OUR JUDGMENT WOULD NOT AFFECT A TEST OF THEM IN
APPROPRIATE STATE PROCEEDINGS.  AFFIRMED.    FN1  W.VA. CODE, 1961,
SEC. 6130. 

FN2  W.VA. CODE, 1961, SEC. 6131. 

FN3  THE STATUTE HAS BEEN INTERPRETED AS REQUIRING ONLY THAT THE
PREVIOUS CONVICTIONS BE SUCH THAT IMPRISONMENT IN A PENITENTIARY COULD
HAVE BEEN IMPOSED.  STATE EX REL.  JOHNSON V. SKEEN, 140 W.VA. 896, 87
S.E.2D 521 (1955).    FN4  THE RECORD INDICATES THAT INSTEAD OF IN
WALLA WALLA CRABTREE WAS CONVICTED IN YAKIMA COUNTY, WASHINGTON.  AT
THE TIME HE WAS SENTENCED AS A HABITUAL CRIMINAL, HE ADMITTED THAT HE
HAD PREVIOUSLY BEEN SENTENCED TO IMPRISONMENT IN THE STATE OF
WASHINGTON FOR A TERM OF 20 YEARS. 

FN5  E.G., MOORE V. MISSOURI, 159 U.S. 673 (1895).  WEST VIRGINIA'S
STATUTE IS A CARRYOVER FROM THE LAWS OF VIRGINIA, VA. CODE, 1860,
C.199, SECS. 25-26, AND BECAME ITS LAW WHEN WEST VIRGINIA WAS ORGANIZED
AS A SEPARATE STATE.  SINCE THAT TIME IT HAS REMAINED BASICALLY THE
SAME, SAVE FOR A 1943 PROCEDURAL AMENDMENT WHICH PROVIDED THAT THE
STATUTE SHOULD BE INVOKED BY INFORMATION FILED AFTER CONVICTION RATHER
THAN BY ALLEGATION IN THE INDICTMENT UPON WHICH THE SUBJECT WAS BEING
PROSECUTED FOR A SUBSTANTIVE OFFENSE.  IN 1912 THIS COURT UPHELD THE
CONSTITUTIONALITY OF THE STATUTE.  GRAHAM V. WEST VIRGINIA, 224 U.S.
616 (1912). 

FN6  ANY OTHER RULE WOULD PLACE A DIFFICULT BURDEN ON THE IMPOSITION
OF A RECIDIVIST PENALTY.  ALTHOUGH THE FACT OF PRIOR CONVICTION IS
WITHIN THE KNOWLEDGE OF THE DEFENDANT, OFTEN THIS KNOWLEDGE DOES NOT
COME HOME TO THE PROSECUTOR UNTIL AFTER THE TRIAL, AND IN MANY CASES
THE PRIOR CONVICTIONS ARE NOT DISCOVERED UNTIL THE DEFENDANT REACHES
THE PENITENTIARY. 

FN7  WEST VIRGINIA V. BLANKENSHIP, 137 W.VA. 1, 69 S.E.2D 398
(1952). 

FN8  W.VA. CODE, 1961, SEC. 6131. 

FN9  THE FACT THAT THE STATUTE EXPRESSLY PROVIDES FOR A JURY TRIAL ON
THE ISSUE OF IDENTITY AND IS SILENT AS TO HOW OTHER ISSUES ARE TO BE
DETERMINED DOES NOT FORECLOSE THE RAISING OF ISSUES OTHER THAN
IDENTITY.  THIS IS ESPECIALLY CLEAR IN THE CASE OF LEGAL ISSUES, SUCH
AS THE PETITIONERS NOW RAISE, WHERE A JURY TRIAL WOULD BE
INAPPROPRIATE. 

FN10  THE DENIAL OF RELIEF BY WEST VIRGINIA'S HIGHEST COURT MAY HAVE
INVOLVED THE DETERMINATION THAT THE STATUTE, LIKE ITS COUNTERPART SEC.
6260, INFRA, NOTE 11, IS NOT MANDATORY.  SUCH AN INTERPRETATION WOULD
BE BINDING UPON THIS COURT.  HOWEVER, WE NEED NOT INQUIRE INTO THIS
POINT. 

FN11  AFTER PRISONERS ARE CONFINED IN THE PENITENTIARY, THE WARDEN IS
GRANTED DISCRETION AS TO INVOCATION OF THE SEVERER PENALTY.  W.VA.
CODE, 1961, SEC. 6260.  THUS THE FAILURE TO INVOKE THE PENALTY IN THE
CASES CITED BY PETITIONERS MAY REFLECT THE EXERCISE OF SUCH
DISCRETION. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION IN OYLER V. BOLES AND CRABTREE V. BOLES,
NOS. 56 AND 57, AND CONCUR IN THE RESULT IN CHEWNING V. CUNNINGHAM, NO.
63, ANTE, P. 443. 

IN MY VIEW, THE ISSUES DECIDED IN OYLER AND CRABTREE, ON THE ONE
HAND, AND IN CHEWNING, ON THE OTHER, REPRESENT OPPOSITE SIDES OF THE
SAME COIN.  SINCE THEIR INTERRELATIONSHIP DOES NOT APPEAR FROM THE
OPINIONS OF THE COURT, AND SINCE I CANNOT AGREE WITH THE GROUNDS OF
DECISION STATED IN CHEWNING, I FILE THIS SEPARATE OPINION. 

THE STATUTES OF BOTH VIRGINIA AND WEST VIRGINIA PROVIDE FOR ENHANCED
PUNISHMENT OF MULTIPLE OFFENDERS.  APPARENTLY UNDER THE PRACTICE OF
NEITHER STATE IS THE ALLEGED RECIDIVIST GIVEN ADVANCE NOTICE, EITHER
BEFORE THE TRIAL FOR HIS LATEST OFFENSE OR AFTER THAT TRIAL BUT BEFORE
SENTENCING, OF THE CHARGES THAT ARE MADE IN THE MULTIPLE-OFFENSE
ACCUSATION.  IT IS NOT UNTIL HE APPEARS IN OPEN COURT AND HEARS THE
PROSECUTOR'S INFORMATION READ TO HIM THAT THE ACCUSED LEARNS ON WHICH
CONVICTIONS IT IS THAT THE STATE RELIES IN SUPPORT OF ITS DEMAND FOR AN
INCREASED SENTENCE.  AND IT IS THEN AND THERE THAT HE MUST PLEAD AND
STATE WHAT HIS DEFENSE IS, IF HE HAS ANY.  THIS PROCEDURE WAS FOLLOWED
IN EACH OF THE PRESENT CASES. 

FOR AN INDIVIDUAL UNREPRESENTED BY COUNSEL, THIS IS SURELY TOO
PRECIPITOUS A PROCEDURE TO SATISFY THE STANDARDS OF FAIRNESS REQUIRED
OF STATE COURTS BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
IN RE OLIVER, 333 U.S. 257, 273; SEE WILLIAMS V. NEW YORK, 337 U.S.
241, 245; COLE V. ARKANSAS, 333 U.S. 196, 201.  ONE WHO IS UNTUTORED IN
THE LAW CANNOT HELP BUT BE BEWILDERED BY THIS SUDDEN PRESENTATION OF
THE CHARGES AGAINST HIM AND THE DEMAND FOR AN IMMEDIATE RESPONSE. 
WITHOUT SUGGESTING THAT ADVANCE NOTICE OF ANY PARTICULAR DURATION MUST
BE AFFORDED, STILL LESS THAT SUCH NOTICE MUST BE GIVEN BEFORE TRIAL OR
SENTENCING ON THE LATEST OFFENSE, HAD THE PETITIONERS IN OYLER AND
CRABTREE BEEN WITHOUT THE AID OF COUNSEL AT THEIR MULTIPLE-OFFENDER
HEARINGS, I WOULD ENTERTAIN GRAVE DOUBTS AS TO THE CONSTITUTIONALITY OF
THE PROCEDURE FROM WHICH THEIR INCREASED SENTENCES RESULTED. 

BUT THE RECORDS IN THESE CASES REVEAL THAT BOTH OYLER AND CRABTREE
HAD COUNSEL AT HAND WHEN THE MULTIPLE-OFFENDER HEARING WAS HELD AND
WHEN THEY WERE ASKED TO PLEAD.  COUNSEL COULD HAVE REQUESTED A
CONTINUANCE IN ORDER TO LOOK INTO THE VALIDITY OF THE PREVIOUS
CONVICTIONS OR OTHER POSSIBLE DEFENSES TO THE RECIDIVIST CHARGES, OR,
IF THERE WAS ANY DOUBT, TO ESTABLISH THE IDENTITIES OF THE PREVIOUS
OFFENDERS.  THEY CHOSE NOT TO DO SO, AND I THINK THIS CHOICE FORECLOSES
THE PETITIONERS' CLAIMS THAT THEY WERE NOT GIVEN ADEQUATE NOTICE AND
OPPORTUNITY TO PREPARE A DEFENSE. 

IN CHEWNING, HOWEVER, THE PETITIONER HAD NO COUNSEL.  HE WAS TAKEN
FROM THE STATE PENITENTIARY WITHOUT ANY WARNING OF WHAT WAS IN STORE
FOR HIM, AND WAS ACCUSED IN OPEN COURT OF HAVING BEEN CONVICTED ON
THREE PRIOR OCCASIONS.  HIS ALLEGATIONS THAT HE REQUESTED THE
ASSIGNMENT OF COUNSEL, AND THAT SUCH REQUEST WAS DENIED, ARE NOT
CONTROVERTED.  (FN1) 

THE COURT STRIKES DOWN THE ENHANCED SENTENCE, DESPITE THE APPARENT
SIMILARITY BETWEEN THIS CLAIM AND THE ONE REJECTED IN GRYGER V. BURKE,
334 U.S. 728, BECAUSE IT HOLDS THAT VARIOUS DEFENSES THAT WERE
AVAILABLE TO CHEWNING UNDER VIRGINIA LAW COULD NOT HAVE BEEN KNOWN TO
OR PRESENTED BY A LAYMAN.   TO ME, THE BARE POSSIBILITY THAT ANY OF
THESE IMPROBABLE CLAIMS COULD HAVE BEEN ASSERTED DOES NOT AMOUNT TO THE
"EXCEPTIONAL CIRCUMSTANCES" WHICH, UNDER EXISTING LAW, E.G., BETTS V.
BRADY, 316 U.S. 455, MUST BE PRESENT BEFORE THE FOURTEENTH AMENDMENT
IMPOSES ON THE STATE A DUTY TO PROVIDE COUNSEL FOR AN INDIGENT ACCUSED
IN A NONCAPITAL CASE.  NOR DO I THINK THAT A DECISION ON THESE GROUNDS
CAN BE RECONCILED WITH THE HOLDING IN GRYGER, IN WHICH THE COURT
REJECTED THE PROPOSITION, MADE BY ABLE APPOINTED COUNSEL, THAT CERTAIN
CONTENTIONS, MUCH LIKE THOSE HERE SUGGESTED BY THE COURT, COULD HAVE
BEEN OFFERED HAD THE PETITIONER IN THAT CASE BEEN PROVIDED WITH COUNSEL
FOR HIS MULTIPLE-OFFENDER HEARING. 

WHAT DOES DISTINGUISH THIS CASE FROM GRYGER, HOWEVER, AND PERSUADES
ME THAT THE FAILURE TO SUPPLY ASSISTANCE OF COUNSEL AMOUNTED TO A
DENIAL OF THE PROCEDURAL FAIRNESS ASSURED BY THE FOURTEENTH AMENDMENT,
IS THE WANT OF ADEQUATE NOTICE IN ADVANCE OF THE HEARING.  IN GRYGER, A
COPY OF THE INFORMATION LISTING THE PRIOR OCCASIONS ON WHICH THE
ACCUSED HAD BEEN CONVICTED WAS SERVED UPON HIM MORE THAN SIX AND A HALF
MONTHS BEFORE HE WAS BROUGHT INTO COURT AND ASKED TO PLEAD.  THIS WAS
MORE THAN AMPLE TIME FOR HIM TO ENGAGE AN ATTORNEY, REQUEST ASSIGNMENT
OF COUNSEL, OR DECIDE FOR HIMSELF WHAT LINE OF DEFENSE TO TAKE.  (FN2)
IN THE CASE BEFORE US NOW, CHEWNING WAS GIVEN NO SUCH OPPORTUNITY. 
HENCE I AGREE THAT THE LEAST THAT FAIRNESS REQUIRED WAS THAT HE BE
PROVIDED WITH COUNSEL SO AS TO BE ADVISED OF THE COURSES AVAILABLE TO
HIM.  WITH NO OPPORTUNITY TO GET SUCH ADVICE, I DO NOT THINK THAT HIS
OWN FAILURE TO ASK FOR A CONTINUANCE HAS ANY LEGAL SIGNIFICANCE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

WHEN THIS COURT, YEARS AGO, SUSTAINED AN APPLICATION OF WEST
VIRGINIA'S HABITUAL CRIMINAL LAW, IT SAID: 

"FULL OPPORTUNITY WAS ACCORDED TO THE PRISONER TO MEET THE ALLEGATION
OF FORMER CONVICTION.  PLAINLY, THE STATUTE CONTEMPLATED A VALID
CONVICTION WHICH HAD NOT BEEN SET ASIDE OR THE CONSEQUENCES OF WHICH
HAD NOT BEEN REMOVED BY ABSOLUTE PARDON.  NO QUESTION AS TO THIS CAN BE
RAISED HERE, FOR THE PRISONER IN NO WAY SOUGHT TO CONTEST THE VALIDITY
OR UNIMPAIRED CHARACTER OF THE FORMER JUDGMENTS, BUT PLEADED THAT HE
WAS NOT THE PERSON WHO HAD THUS BEEN CONVICTED.  ON THIS ISSUE HE HAD
DUE HEARING BEFORE A JURY."  GRAHAM V. WEST VIRGINIA, 224 U.S. 616,
625. 

THE ISSUE NOW PRESENTED IS BROADER.  IT IS WHAT PROCEDURE USED IN
MAKING A CHARGE THAT A PERSON IS AN HABITUAL CRIMINAL IS NECESSARY TO
SATISFY THE REQUIREMENTS OF DUE PROCESS. 

IT IS SAID THAT THE RECORD FAILS TO SHOW THAT THIS PRECISE POINT WAS
RAISED AT THE TRIAL.  IF SO, WEST VIRGINIA MIGHT MAKE THAT AN ADEQUATE
STATE GROUND, THOUGH IT SHOULD BE NOTED IN PASSING THAT THE COURT IN
RHEA V. EDWARDS, 136 F. SUPP. 671, AFF'D, 238 F.2D 850, HELD THAT
TENNESSEE'S FORMER PROCEDURE IN HABITUAL-OFFENDER CASES VIOLATED DUE
PROCESS WHERE INADEQUATE NOTICE WAS GIVEN, EVEN THOUGH THE ACCUSED
APPARENTLY HAD NOT MADE THIS AN ISSUE AT THE TRIAL.  CF. TERMINIELLO V.
CHICAGO, 337 U.S. 1.  IN THESE CASES, HOWEVER, WEST VIRGINIA NOWHERE
SUGGESTS THAT THE ISSUE OF DUE PROCESS IS NOT PROPERLY HERE.  RATHER
THE ARGUMENT IS THAT THE REQUIREMENTS OF DUE PROCESS ARE SATISFIED
THOUGH THE ISSUE TO BE TRIED IS RESTRICTED TO THE IDENTITY OF THE
ACCUSED. 

A HEARING UNDER THESE HABITUAL-OFFENDER STATUTES REQUIRES "A JUDICIAL
HEARING" IN ORDER TO COMPORT WITH DUE PROCESS.  CHANDLER V. FRETAG, 348
U.S. 3, 8.  THE CHANDLER CASE HELD THAT DENIAL OF AN OPPORTUNITY FOR AN
ACCUSED TO RETAIN A LAWYER TO REPRESENT HIM DEPRIVES HIM OF DUE
PROCESS.  AND SEE CHEWNING V. CUNNINGHAM, ANTE, P. 443.  IF DUE PROCESS
IS TO BE SATISFIED, THE FULL PROCEDURAL PANOPLY OF THE BILL OF RIGHTS,
SO FAR AS NOTICE AND AN OPPORTUNITY TO DEFEND ARE CONCERNED, MUST BE
AFFORDED THE ACCUSED.  THE CHARGE OF BEING AN HABITUAL OFFENDER IS AS
EFFECTIVELY REFUTED BY PROOF THAT THERE WAS NO PRIOR CONVICTION OR THAT
THE PRIOR CONVICTIONS WERE NOT PENITENTIARY OFFENSES AS BY PROOF THAT
THE ACCUSED IS NOT THE PERSON CHARGED WITH THE NEW OFFENSE.  THE CHARGE
OF BEING AN HABITUAL OFFENDER IS ALSO EFFECTIVELY REFUTED BY PROOF THAT
THE PRIOR CONVICTIONS WERE NOT CONSTITUTIONALLY VALID AS, FOR EXAMPLE,
WHERE ONE WENT TO TRIAL WITHOUT A LAWYER UNDER CIRCUMSTANCES WHERE THE
APPOINTMENT OF SOMEONE TO REPRESENT HIM WAS A REQUIREMENT OF DUE
PROCESS.  DENIAL OR ABSENCE OF COUNSEL IS AN ISSUE RAISABLE ON
COLLATERAL ATTACK OF STATE JUDGMENTS.  WILLIAMS V. KAISER, 323 U.S.
471.  THAT IS AN INQUIRY THAT SHOULD ALSO BE PERMITTED IN THESE
HABITUAL-OFFENDER CASES, IF THE PROCEDURE EMPLOYED IS TO SATISFY DUE
PROCESS. 

I MENTION THE RIGHT OF COUNSEL MERELY TO UNDERLINE THE GRAVITY OF
THESE ACCUSATIONS.  UNLESS ANY INFIRMITIES IN THE PRIOR CONVICTIONS
THAT CAN BE REACHED ON COLLATERAL ATTACK (FN1) CAN BE REACHED IN THESE
PROCEEDINGS, THE WRONG DONE IS SERIOUSLY COMPOUNDED. 

AS I UNDERSTAND IT, THE OPINION OF THE COURT CONCEDES AS MUCH.  BUT
IT AFFIRMS THE CONVICTIONS, EVEN THOUGH NO PRIOR NOTICE OF THE HABITUAL
OFFENDER CHARGE WAS GIVEN.  WITHOUT ANY ADVANCE WARNING THE PRESENT
INFORMATIONS WERE FILED AT TIMES WHEN PETITIONERS WERE IN COURT IN
CONNECTION WITH THEIR MOST RECENT CONVICTIONS.  THE OMISSION OF FORMAL
NOTICE HAS BEEN HELD FATAL IN PROCEEDINGS UNDER RECIDIVIST STATUTES. 
UNITED STATES V. CLAUDY, 204 F.2D 624; EDWARDS V. RHEA, 238 F.2D 850. 
I THINK REASONABLE PRIOR NOTICE IS NECESSARY TO SATISFY DUE PROCESS -
NOTICE GIVEN FAR ENOUGH IN ADVANCE TO ALLOW FOR AN OPPORTUNITY TO
DEFEND.  A 9-DAY NOTICE WAS DEEMED ADEQUATE IN JOHNSON V. KANSAS, 284
F.2D 344, 345, THE COURT SAYING: 

"THE FUNDAMENTAL REQUISITES OF DUE PROCESS, WHEN THE STATUTE IS TO BE
INVOKED, ARE REASONABLE NOTICE AND AN OPPORTUNITY FOR A FULL AND
COMPLETE HEARING, WITH THE RIGHT TO THE AID OF COMPETENT COUNSEL." 

RESPONDENT CONCEDES THAT THE NOTICE NECESSARY FOR A CRIMINAL TRIAL
WAS NOT GIVEN.  RESPONDENT INDEED MAINTAINS THAT NO NOTICE IS
NECESSARY: 

"THE PRIMARY PURPOSE FOR AFFORDING A DEFENDANT NOTICE IS TO INFORM
HIM OF THE CHARGE AGAINST HIM, AND TO GIVE HIM A REASONABLE TIME IN
WHICH TO PREPARE HIS DEFENSE.  SUCH REASON FOR NOTICE DOES NOT EXIST IN
THE INSTANT CASES PERTAINING TO THE APPLICATION OF THE WEST VIRGINIA
HABITUAL CRIMINAL ACT."  BRIEF, P.5. 

ADEQUATE NOTICE OF THE CHARGE UNDER THESE HABITUAL-OFFENDER STATUTES
IS AS IMPORTANT AS ADEQUATE NOTICE OF THE CHARGE IN AN ORDINARY
CRIMINAL TRIAL.  THE NOTICE REQUIRED MUST BE COMMENSURATE WITH THE
RANGE AND COMPLEXITY OF ISSUES THAT CONCEDEDLY MAY BE TENDERED.  THE
REQUIREMENTS OF NOTICE, LIKE THOSE FOR A FAIR HEARING, ARE BASIC.  AS
WE STATED IN IN RE OLIVER, 333 U.S. 257, 273:  "A PERSON'S RIGHT TO
REASONABLE NOTICE OF A CHARGE AGAINST HIM, AND AN OPPORTUNITY TO BE
HEARD IN HIS DEFENSE - A RIGHT TO HIS DAY IN COURT - ARE BASIC IN OUR
SYSTEM OF JURISPRUDENCE  ...  ."  THAT CASE WAS ONE IN WHICH A "ONE-MAN
GRAND JURY" CHARGED A WITNESS WITH GIVING FALSE AND EVASIVE TESTIMONY
AND SUMMARILY CONVICTED HIM.  ITS PRINCIPLE IS EQUALLY APPLICABLE
HERE.  UNTIL THERE IS A CHARGE FAIRLY MADE AND FAIRLY TRIED, PROCEDURAL
DUE PROCESS HAS NOT BEEN SATISFIED.  (FN2) 

UNLESS THIS PRINCIPLE IS ADHERED TO IN PROCEEDINGS UNDER THESE
RECIDIVIST STATUTES, SERIOUS PENALTIES MAY BE IMPOSED WITHOUT ANY REAL
OPPORTUNITY TO DEFEND.    FN1  CONSTITUTIONAL INFIRMITIES IN CRIMINAL
CONVICTIONS IN FEDERAL COURTS WERE DECLARED TO BE "A JURISDICTIONAL BAR
TO A VALID CONVICTION" AND ASSERTABLE BY HABEAS CORPUS IN JOHNSON V.
ZERBST, 304 U.S. 458, 468, DECIDED IN 1938. 

FN2  ANY CONTRARY IMPLICATIONS FROM GRAHAM V. WEST VIRGINIA, SUPRA,
MUST BE READ IN LIGHT OF THE FACT THAT THE BROADENING REACH OF
CONSTITUTIONAL ISSUES RAISABLE BY STATE HABEAS CORPUS FOLLOWED OUR
DECISION IN JOHNSON V. ZERBST, SUPRA, NOTE 1.  GRAHAM V. WEST VIRGINIA
WAS DECIDED IN 1912; JOHNSON V. ZERBST IN 1938; AND THE BROADENING
ATTACK ON STATE COURT JUDGMENTS ON CONSTITUTIONAL GROUNDS IN COLLATERAL
PROCEEDINGS STARTED WITH CHAMBERS V. FLORIDA, 309 U.S. 227.  AND SEE
SMITH V. O'GRADY, 312 U.S. 329; WILLIAMS V. KAISER, SUPRA.
..END :



















POLLER V. COLUMBIA BROADCASTING SYSTEM, INC. 368 U.S. 464 


NO. 45.  ARGUED NOVEMBER 13-14, 1961 - DECIDED FEBRUARY 19, 1962 - 109
U.S. APP. D.C. 170, 284 F.2D 599, REVERSED. 


THIS ACTION UNDER SEC. 4 OF THE CLAYTON ACT TO RECOVER TREBLE DAMAGES
FOR LOSSES ALLEGEDLY RESULTING FROM VIOLATIONS OF SECS. 1 AND 2 OF THE
SHERMAN ACT WAS BROUGHT BY PETITIONER, WHO IS THE ASSIGNEE OF A
DISSOLVED CORPORATION WHICH FORMERLY OWNED AND OPERATED WCAN, AN ULTRA
HIGH FREQUENCY (UHF) TELEVISION BROADCASTING STATION IN MILWAUKEE,
WHICH WAS AFFILIATED WITH THE COLUMBIA BROADCASTING SYSTEM (CBS)
NETWORK.  HE ALLEGED THAT, PURSUANT TO A CONSPIRACY TO RESTRAIN AND
MONOPOLIZE TRADE IN THE TELEVISION BROADCASTING BUSINESS, CBS PURCHASED
WOKY, A COMPETING UHF STATION IN MILWAUKEE, CANCELLED WCAN'S NETWORK
AFFILIATION, THEREBY FORCED PETITIONER TO SELL WCAN TO CBS AT MUCH LESS
THAN ITS TRUE VALUE, AND ELIMINATED HIM FROM THE BROADCASTING BUSINESS
IN MILWAUKEE.  HE ALSO ALLEGED THAT A PURPOSE OF THE CONSPIRACY WAS TO
ELIMINATE UHF BROADCASTING IN MILWAUKEE AND POSSIBLY THROUGHOUT THE
UNITED STATES.  ON THE BASIS OF PLEADINGS, AFFIDAVITS, DEPOSITIONS AND
INTERROGATORIES FILED IN THE CASE, THE DISTRICT COURT GRANTED
RESPONDENTS' MOTION FOR A SUMMARY JUDGMENT, ON THE GROUND THAT THE
INJURY SUFFERED BY PETITIONER WAS DAMNUM ABSQUE INJURIA, SINCE CBS HAD
A RIGHT TO PURCHASE WOKY, SUBJECT TO APPROVAL BY THE FEDERAL
COMMUNICATIONS COMMISSION, AND TO CANCEL ITS AFFILIATION CONTRACT WITH
WCAN.  HELD:  ON THIS RECORD, IT CANNOT BE SAID THAT "THERE IS NO
GENUINE ISSUE AS TO ANY MATERIAL FACT," WITHIN THE MEANING OF FEDERAL
RULE OF CIVIL PROCEDURE 56(C), AND THE MOTION FOR SUMMARY JUDGMENT
SHOULD NOT HAVE BEEN GRANTED.  PP. 465-474. 

(A)  IF THE CANCELLATION OF WCAN'S NETWORK AFFILIATION AND THE
PURCHASE OF WOKY BY CBS WERE PART AND PARCEL OF UNLAWFUL CONDUCT OR
AGREEMENT WITH OTHERS OR WERE CONCEIVED IN A PURPOSE TO UNREASONABLY
RESTRAIN TRADE, CONTROL A MARKET, OR MONOPOLIZE, AS ALLEGED IN THE
COMPLAINT, THEN SUCH CONDUCT MIGHT WELL VIOLATE THE SHERMAN ACT, AND
THE RECORD INDICATES THAT ON A TRIAL PETITIONER MIGHT BE ABLE TO
SUBSTANTIATE HIS CLAIM OF CONSPIRACY.  PP. 467-473. 

(B)  SUMMARY PROCEDURES SHOULD BE USED SPARINGLY IN COMPLEX ANTITRUST
LITIGATION WHERE MOTIVE AND INTENT PLAY LEADING ROLES, THE PROOF IS
LARGELY IN THE HANDS OF THE ALLEGED CONSPIRATORS, AND HOSTILE WITNESSES
THICKEN THE PLOT.  P. 473. 

(C)  IT CANNOT BE SAID THAT NO RESTRAINT OF TRADE RESULTED FROM
TERMINATION BY CBS OF ITS AFFILIATION WITH WCAN BECAUSE THE PUBLIC
WOULD STILL RECEIVE THE SAME SERVICE FROM ANOTHER SOURCE.  KLOR'S V.
BROADWAY-HALE STORES, 359 U.S. 207.  P. 473. 

POLLER V. COLUMBIA BROADCASTING SYSTEM, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION INVOLVED HERE IS WHETHER THIS TREBLE DAMAGE ACTION BASED
ON ALLEGED VIOLATIONS OF THE RESTRAINT OF TRADE AND MONOPLY SECTIONS OF
THE SHERMAN LAW (FN1) WAS RIGHTLY TERMINATED BY A SUMMARY JUDGMENT OF
DISMISSAL.  THE PETITIONER, LOU POLLER, IS THE ASSIGNEE OF THE MIDWEST
BROADCASTING COMPANY, A DISSOLVED CORPORATION.  IN 1954 MIDWEST WAS THE
OWNER AND OPERATOR OF WCAN, AN ULTRA HIGH FREQUENCY (UHF)(FN2)
BROADCASTING STATION LOCATED IN MILWAUKEE.  THE STATION WAS AFFILIATED
WITH THE COLUMBIA BROADCASTING SYSTEM NETWORK AND WAS OF THE ALLEGED
VALUE OF $2,000,000.  POLLER CHARGED THAT THE RESPONDENTS IN 1954
ENTERED INTO AN UNLAWFUL CONSPIRACY TO ELIMINATE WCAN FROM THE
BROADCAST FIELD IN MILWAUKEE.  (FN3)  IT WAS A PART OF THE CONSPIRACY
THAT RESPONDENT HOLT WAS TO SECURE IN HIS NAME AN OPTION TO PURCHASE
WOKY, A COMPETING BUT INFERIOR UHF BROADCASTER IN MILWAUKEE.  WHEN AND
IF THE FEDERAL COMMUNICATIONS COMMISSION AMENDED ITS MULTIPLE OWNERSHIP
RULES, THEN UNDER CONSIDERATION, SO AS TO PERMIT CBS TO OWN UHF
STATIONS IN ADDITION TO ITS VHF ONES, HOLT WAS TO ASSIGN HIS OPTION TO
CBS IF IT SO ELECTED.  IN THAT EVENT, IT WAS AGREED CBS WOULD CANCEL
ITS AFFILIATION AGREEMENT WITH WCAN PURSUANT TO ITS OPTION IN THAT
CONTRACT AND IN DUE COURSE CONSUMMATE ITS PURCHASE OF WOKY.  THIS WOULD
PLACE WCAN IN THE PRECARIOUS POSITION OF COMPETING WITH THE TWO MAJOR
NATIONAL NETWORKS WITH STATIONS IN MILWAUKEE.  BEING UNABLE TO SURVIVE
SUCH COMPETITION, ITS ONLY COURSE WOULD BE TO LIQUIDATE AT DISTRESSED
PRICES ITS VALUABLE EQUIPMENT AND FACILITIES ONLY RECENTLY ACQUIRED. 
CBS MIGHT THEN ACQUIRE THEM AT ITS OWN PRICE FOR USE IN ITS NEW
OPERATION WHICH WAS NECESSARY BECAUSE OF THE INFERIOR QUALITY OF THOSE
OF WOKY.  CBS WOULD THEN HAVE MIDWEST'S SUPERIOR FACILITIES AND
EQUIPMENT WHICH WITH THE WOKY LICENSE WOULD ENABLE IT TO START
BROADCASTING AT A MINIMUM EXPENSE AND THE LEAST POSSIBLE DELAY.  POLLER
FURTHER CLAIMED THAT THE OVERALL PURPOSE OF CBS WAS TO DESTROY UHF
BROADCASTING, WHICH HAD ONLY BEEN PERMITTED TO ENTER THE FIELD IN 1952,
IN ORDER TO PROTECT ITS VAST INTEREST IN VHF STATIONS THROUGHOUT THE
UNITED STATES.  FINALLY, HE ALLEGED THE CONSPIRACY WAS SO SUCCESSFUL
THAT CBS NOT ONLY ACQUIRED WCAN AT A LOSS OF $1,450,000 TO MIDWEST BUT
THAT THE LATTER WAS OBLIGED TO BUY THE FACILITIES AND EQUIPMENT OF WOKY
AT EXORBITANT PRICES AND TO AGREE TO CONTINUE BROADCASTING FROM THE
LATTER'S PREMISES - WHICH WAS DONE "IN ORDER TO PRETEND THAT THERE WAS
NO RESTRAINT OF TRADE OR ELIMINATION OF COMPETITION  ...  ."  HOWEVER,
WCAN CONTINUED IN BUSINESS ONLY 10 DAYS AFTER CBS STARTED ITS
BROADCASTS ON FEBRUARY 17, 1955.  CBS DISCONTINUED UHF BROADCASTING IN
1959 WHEN IT BECAME AFFILIATED WITH  A MILWAUKEE VHF STATION. 

AT THE HEARING ON THE MOTION FOR SUMMARY JUDGMENT THE TRIAL JUDGE
HELD THAT THE INJURY SUFFERED WAS DAMNUM ABSQUE INJURIA, STATING THAT
CBS HAD A RIGHT TO PURCHASE WOKY, SUBJECT TO FEDERAL COMMUNICATIONS
COMMISSION APPROVAL, AND TO CANCEL ITS AFFILIATION CONTRACT WITH WCAN. 
174 F. SUPP. 802.  THE COURT OF APPEALS AFFIRMED WITH JUDGE WASHINGTON
DISSENTING, 109 U.S. APP. D.C. 170, 284 F.2D 599, AND WE GRANTED
CERTIORARI, 365 U.S. 840.  WE NOW CONCLUDE THAT THERE WAS A GENUINE
ISSUE AS TO MATERIAL FACTS AND THAT SUMMARY JUDGMENT WAS NOT THEREFORE
IN ORDER. 

                                            I. 

SUMMARY JUDGMENT SHOULD BE ENTERED ONLY WHEN THE PLEADINGS,
DEPOSITIONS, AFFIDAVITS, AND ADMISSIONS FILED IN THE CASE "SHOW THAT
(EXCEPT AS TO THE AMOUNT OF DAMAGES) THERE IS NO GENUINE ISSUE AS TO
ANY MATERIAL FACT AND THAT THE MOVING PARTY IS ENTITLED TO A JUDGMENT
AS A MATTER OF LAW."  RULE 56(C), FED. RULES CIV. PROC. THIS RULE
AUTHORIZES SUMMARY JUDGMENT "ONLY WHERE THE MOVING PARTY IS ENTITLED TO
JUDGMENT AS A MATTER OF LAW, WHERE IT IS QUITE CLEAR WHAT THE TRUTH IS,
...  AND WHERE NO GENUINE ISSUE REMAINS FOR TRIAL  ...  FOR THE PURPOSE
OF THE RULE IS NOT TO CUT LITIGANTS OFF FROM THEIR RIGHT OF TRIAL BY
JURY IF THEY REALLY HAVE ISSUES TO TRY."  SARTOR V. ARKANSAS NATURAL
GAS CORP., 321 U.S. 620, 627 (1944).  WE NOW EXAMINE THE CONTENTIONS OF
THE PARTIES TO DETERMINE WHETHER UNDER THE RULE SUMMARY JUDGMENT WAS
PROPER. 

                                             II. 

THE RESPONDENTS IN THEIR MOTION FOR SUMMARY JUDGMENT DEPENDED UPON
THE AFFIDAVITS OF FOUR PERSONS.   THE FIRST IS RICHARD SALANT, VICE
PRESIDENT OF CBS; ANOTHER, JAY ELIASBERG, DIRECTOR OF ITS RESEARCH
DIVISION; A THIRD, LEE BARTELL, WHO MADE THE SALE OF WOKY TO CBS AT A
$50,000 PROFIT; FINALLY, THAD HOLT, A CODEFENDANT WHO RECEIVED $10,000
FROM THE TRANSACTION.  THESE WERE SUPPLEMENTED BY MATERIAL TAKEN FROM
PETITIONER'S DEPOSITIONS OF SALANT AND CBS PRESIDENT STANTON.  IT IS
READILY APPARENT THAT EACH OF THESE PERSONS WAS AN INTERESTED PARTY. 

RESPONDENTS APPEAR TO PLACE MOST RELIANCE ON THE SALANT TESTIMONY,
AND WE SHALL, THEREFORE, TAKE IT UP IN SOME DETAIL.  IT PROJECTS THREE
DEFENSES, THE FIRST BEING THAT THERE WAS NO CONSPIRACY FOR THE
FOLLOWING REASONS:  CBS-TV WAS NOT A SEPARATE ENTITY BUT ONLY A
DIVISION OF CBS, AND THEREFORE THERE COULD BE NO CONSPIRACY BETWEEN THE
TWO; HOLT, THE COVER MAN IN SECURING THE OPTION AND PURCHASE OF WOKY,
"HAD BEEN GIVEN THE PARTICULAR JOB" BY CBS AND THEREFORE WAS NOT A
CONSPIRATOR; AND BARTELL NEVER SHARED IN ANY ILLEGAL PURPOSE THAT WOULD
BRING HIM INTO THE CONSPIRACY.  SECONDLY, IN ANY EVENT, THE ONLY ISSUE
IN THE CASE IS THE LEGALITY OF THE CANCELLATION OF THE AFFILIATION
AGREEMENT BY CBS WHICH WAS MERELY THE LEGAL EXERCISE BY CBS OF "THE
NORMAL RIGHT OF A PRODUCER TO SELECT THE OUTLET FOR ITS PRODUCT."  AND,
FINALLY, THE MONOPOLY CHARGES ARE ENTIRELY "FRIVOLOUS."  THE TRIAL
JUDGE ACCEPTED THE SECOND DEFENSE. 

                      III. 

IT MAY BE THAT CBS BY INDEPENDENT ACTION COULD HAVE EXERCISED ITS
GRANTED RIGHT TO CANCEL WCAN'S AFFILIATION UPON SIX MONTHS' NOTICE AND
INDEPENDENTLY PURCHASED ITS OWN OUTLET IN MILWAUKEE.  HOWEVER, IF SUCH
A CANCELLATION AND PURCHASE WERE PART AND PARCEL OF UNLAWFUL CONDUCT OR
AGREEMENT WITH OTHERS OR WERE CONCEIVED IN A PURPOSE TO UNREASONABLY
RESTRAIN TRADE, CONTROL A MARKET, OR MONOPOLIZE, THEN SUCH CONDUCT
MIGHT WELL RUN AFOUL OF THE SHERMAN LAW.  SEE TIMES-PICAYUNE PUB. CO.
V. UNITED STATES, 345 U.S. 594, 624-625 (1953); EASTMAN KODAK CO. V.
SOUTHERN MATERIALS CO., 273 U.S. 359, 375 (1927).  POLLER ALLEGES AND
THE AFFIDAVITS, DEPOSITIONS, AND EXHIBITS INDICATE MUCH MORE THAN THE
FREE EXERCISE BY CBS OF THE GRANTED RIGHT OF CANCELLATION.  A
CONSPIRACY IS ALLEGED TO RESTRAIN TRADE IN THE MILWAUKEE TELEVISION
MARKET; TO ELIMINATE WCAN FROM THAT MARKET; TO SECURE ITS FACILITIES AT
DEPRESSED PRICES; AND TO OCCUPY THE UHF BAND IN THAT MARKET
EXCLUSIVELY.  THE RIGHT OF CANCELLATION WAS MERELY ONE OF THE MEANS
USED TO EFFECTUATE THIS CONSPIRACY.  MOREOVER, "IN ITS WIDER SENSE"
POLLER CLAIMS THAT A PART OF THEIR CONSPIRACY WAS "TO WIPE OUT THE MOST
OUTSTANDING UHF OPERATOR IN THE COUNTRY (WCAN) AND BY WIPING HIM OUT
THEY DESTROYED THE UHF INDUSTRY, WHICH WAS A THREAT TO THEM, DESPITE
THEIR PROTESTATIONS, BECAUSE OF THE ENORMOUS ECONOMIC INVESTMENT THEY
HAD IN VHF." 

IT IS ARGUED THAT CBS CANNOT CONSPIRE WITH ITSELF.  HOWEVER, THIS
BEGS THE QUESTION FOR THE ALLEGATION IS THAT INDEPENDENT PARTIES, I.E.,
HOLT AND BARTELL, CONSPIRED WITH CBS AND ITS OFFICERS.   (FN4)  WHILE
RESPONDENTS' AFFIDAVITS ASSERT THAT HOLT ACTED IN GOOD FAITH AS A
SPECIAL AGENT OR EMPLOYEE FOR CBS AND THAT BARTELL WAS COMPLETELY FREE
OF ANY EVIL MOTIVES DIRECTED TOWARD WCAN, THE TRIAL JUDGE INDICATED A
BELIEF THAT HOLT WAS "AN INDEPENDENT ACTOR" AND WOULD HAVE SUBMITTED
THE QUESTION OF HIS STATUS TO THE JURY HAD HE NOT DISPOSED OF THE CASE
ON OTHER GROUNDS.  FURTHERMORE, POLLER SUBMITTED A DEPOSITION OF HOLT,
AN EXHIBIT TO WHICH SHOWED CBS HAD FURNISHED HOLT A COMPLETE ANALYSIS
IN WRITING OF THE MILWAUKEE MARKET AND THE OWNERSHIP AND AFFILIATION OF
THE TV STATIONS THERE, INCLUDING WCAN.  THE DEPOSITION REVEALED THAT
HOLT HAD KNOWLEDGE THAT THE OBVIOUS PURPOSE AND NECESSARY EFFECT OF THE
PLAN WOULD BE TO ELIMINATE INDEPENDENT UHF IN MILWAUKEE AND THAT HE HAD
A PERSONAL STAKE IN ITS SUCCESS.  THIS INCLUDED, INTER ALIA, HOLT'S
STATEMENTS THAT HE MET WITH TOP CBS OFFICIALS IN NEW YORK FOR A
BRIEFING ON HIS ROLE, THAT HE WAS A CLOSE FRIEND OF THESE OFFICIALS,
AND THAT HE WOULD HAVE RETAINED THE OPTION FOR HIMSELF IF UNUSED BY
CBS.  THE LATTER ADMISSIONS, WHEN COUPLED WITH THE UNCERTAINTY AT THAT
TIME OF A FEDERAL COMMUNICATIONS COMMISSION RULE PERMITTING CBS TO
PURCHASE WCAN, SUGGEST THAT THE ALTERNATIVE PLAN WAS TO LET HOLT
EXERCISE THE OPTION AND TAKE THE AFFILIATION IF CBS COULD NOT. 
LIKEWISE, BARTELL'S AFFIDAVIT, BARELY A PAGE AND A HALF IN THE RECORD,
DOES NOT NEGATIVE THE ALLEGATIONS OF CONSPIRACY.  UNQUESTIONABLY, AFTER
KNOWING THAT HOLD HAD IN TRUTH BEEN ACTING FOR CBS AND THAT THE SALE
WOULD PROVE DISASTROUS TO WCAN, HE DID FILE CERTAIN PAPERS WITH THE
FEDERAL COMMUNICATIONS COMMISSION REQUESTING APPROVAL OF THE SALE OF
WOKY.  POLLER HAD NO OPPORTUNITY TO CROSS-EXAMINE HIM ALTHOUGH HE WAS A
KEY WITNESS TO RESPONDENTS' THEORY OF THE CASE.  AND IT IS NOTED THAT
EVEN THOUGH THE TRANSFER WAS UNCONTESTED BEFORE THE FEDERAL
COMMUNICATIONS COMMISSION IT RECEIVED APPROVAL BY A VOTE OF ONLY THREE
COMMISSIONERS WITH THE REMAINING TWO STRONGLY DISSENTING.  (FN5)  IT
MIGHT BE THAT ON A TRIAL POLLER COULD SUBSTANTIATE HIS CLAIMS OF
CONSPIRACY EVEN AGAINST BARTELL, ALTHOUGH THIS WOULD NOT BE NECESSARY
TO HIS CASE. 

RESPONDENTS' ANSWER TO THE CHARGE THAT ONE OF THE PURPOSES OF THE
ALLEGED CONSPIRACY WAS TO EXERT A RESTRAINING EFFECT UPON THE
DEVELOPMENT OF UHF IS THAT THIS IS A "FANTASTIC ASSUMPTION - FOR WHICH
THERE IS NOT A SHRED OF EVIDENCE."  AN ANALYSIS OF THE RECORD SEEMS TO
INDICATE THAT IN 1954 PRIOR TO THE PURCHASE OF WOKY THERE WERE THREE
UHF CHANNELS ASSIGNED TO MILWAUKEE BY THE FEDERAL COMMUNICATIONS
COMMISSION, TWO OF WHICH (WCAN AND WOKY) WERE OPERATING; THAT SINCE
DECEMBER 1953 CBS HAD BEEN STUDYING UHF MARKETS PREPARATORY TO AN
EXPECTED CHANGE IN COMMISSION RULES THAT WOULD ALLOW IT TO PURCHASE TWO
UHF STATIONS IN ADDITION TO ITS FIVE VHF ONES; THAT ITS STAFF RATED
PITTSBURGH, ST. LOUIS, NEW HAVEN-HARTFORD, AND MILWAUKEE, IN THAT
ORDER, AS THE MOST ATTRACTIVE; THAT CBS CHOSE TO ENTER THE LATTER
MARKET AND BUY WOKY RATHER THAN TO OPERATE IN MILWAUKEE ON THE THIRD
AVAILABLE CHANNEL; THAT WCAN'S PROFITABLE OPERATION IN 1954, EVEN WITH
LOWER RATES AND COMPETITION FROM WOKY, WAS "IMMEDIATELY CONVERTED TO A
LOSING" ONE, ALTHOUGH IN 1955 WOKY WAS OUT OF BUSINESS; AND THAT THIS
REPORTED LOSS OF ABOUT $130,000 UNDER CBS OPERATION IN 1955 CONTRASTED
SHARPLY WITH THE 66% INCREASE IN ITS PROFITS NATIONALLY.  FURTHERMORE,
REPORTS IN THE RECORD FROM CBS ITSELF SHOW THAT IT ALWAYS HAD
RECOGNIZED "A VHF STATION  ...  WOULD BE PREFERABLE TO A UHF  ...  "
BUT THAT THE LATTER HAD "SPECIALLY GOOD SHORT-TERM PROSPECTS" IN
MILWAUKEE BECAUSE IT HAD "THE CHARACTERISTIC OF BEING AT PRESENT"
(1954) A "SINGLE STATION" MARKET.  CBS FURTHER RECOGNIZED THAT SINCE
ITS PROGRAMING WAS "ALREADY WORKING TO BUILD UP UHF SET POPULATION  ...
THROUGH WCAN THERE WOULD BE NO SHORT-TERM LOSS TO THE NETWORK IN
CONTINUING TO GIVE THE SUPPORT OF CBS PROGRAMING TO THE BUILDUP OF A
UHF POPULATION  ...  AT LEAST UNTIL MORE VHF STATIONS COME IN." 

THE RECORD INDICATES THAT POLLER HAD BUILT UP A PROFITABLE UHF
OPERATION, WHICH WAS RECOGNIZED AS "THE MOST SUCCESSFUL" IN THE UNITED
STATED.  EVEN CBS OFFICIALS POINTED TO IT AS AN EXAMPLE OF HOW "A
VIGOROUSLY AND AGGRESSIVELY MANAGED NEW UHF STATION IN THAT COMMUNITY
CAN DO WELL."  IN THE SHORT PERIOD OF A YEAR ITS PUBLIC ACCEPTANCE IN
MILWAUKEE WAS SO GREAT THAT 90% OF THE 260,000 TV SETS IN THE AREA HAD
BEEN MODIFIED, AT AN EXPENSE OF SOME $20 TO EACH OWNER, SO AS TO BE
ABLE TO RECEIVE UHF SIGNALS.  WHILE CBS HAD REFUSED TO ENLARGE THE SIX
MONTH CANCELLATION CLAUSE, AT NO TIME PRIOR TO THE ALLEGED CONSPIRACY
DID IT INDICATE AN INTENTION TO CANCEL THE WCAN AFFILIATION.  (FN6)  IT
WAS, POLLER CLAIMS, ONLY PURSUANT TO THE CONSPIRACY THAT CBS CAME INTO
THE MILWAUKEE MARKET AND ELIMINATED BOTH WCAN AND WOKY.  SINCE THAT
TIME THE TOTAL NUMBER OF COMMERCIAL UHF STATIONS IN THE UNITED STATES
HAS STEADILY DECLINED FROM 121 AT THE END OF 1953 TO 94 BY MIDYEAR
1956.  AT THE CLOSE OF 1957 THE NUMBER WAS ONLY 88.  IN 1958 CBS ITSELF
ABANDONED A UHF STATION IN HARTFORD, AND IN 1959 THE VERY STATION IN
CONTROVERSY HERE WAS LIKEWISE ABANDONED, LEAVING MILWAUKEE WITH NO
COMMERCIAL UHF SERVICE.  INSTEAD, CBS HAS SWITCHED TO VHF, AFFILIATING
WITH A STORER BROADCASTING COMPANY STATION WHICH WAS AUTHORIZED THERE
THE SAME YEAR.  IT WILL BE REMEMBERED THAT MR. STORER IS THE SAME
PROSPECT WHO, POLLER CLAIMS, INDICATED HE WOULD PAY $2,000,000 FOR WCAN
WHEN THE MULTIPLE RULE WAS ADOPTED BUT WHO COOLED AFTER A CBS WARNING. 
ALL OF THIS MAY NOT BE SUFFICIENT TO WARRANT THE FINDING THAT POLLER
CONTENDS FOR ON THIS CHARGE, BUT IT DOES INDICATE MORE THAN FANTASY,
PARTICULARLY IN THE LIGHT OF THE TESTIMONY OF CBS VICE PRESIDENT SALANT
IN HIS DEPOSITION THAT "IT WOULD BE THE KISS OF DEATH TO UHF IF EITHER
NBC OR CBS ABANDONED A UHF STATION."    IT MAY BE THAT UPON ALL OF THE
EVIDENCE A JURY WOULD BE WITH THE RESPONDENTS.  BUT WE CANNOT SAY ON
THIS RECORD THAT "IT IS QUITE CLEAR WHAT THE TRUTH IS."  CERTAINLY
THERE IS NO CONCLUSIVE EVIDENCE SUPPORTING THE RESPONDENTS' THEORY.  WE
LOOK AT THE RECORD ON SUMMARY JUDGMENT IN THE LIGHT MOST FAVORABLE TO
POLLER, THE PARTY OPPOSING THE MOTION, AND CONCLUDE HERE THAT IT SHOULD
NOT HAVE BEEN GRANTED.  WE BELIEVE THAT SUMMARY PROCEDURES SHOULD BE
USED SPARINGLY IN COMPLEX ANTITRUST LITIGATION WHERE MOTIVE AND INTENT
PLAY LEADING ROLES, THE PROOF IS LARGELY IN THE HANDS OF THE ALLEGED
CONSPIRATORS, AND HOSTILE WITNESSES THICKEN THE PLOT.  (FN7)  IT IS
ONLY WHEN THE WITNESSES ARE PRESENT AND SUBJECT TO CORSS-EXAMINATION
THAT THEIR CREDIBILITY AND THE WEIGHT TO BE GIVEN THEIR TESTIMONY CAN
BE APPRAISED.  TRIAL BY AFFIDAVIT IS NO SUBSTITUTE FOR TRIAL BY JURY
WHICH SO LONG HAS BEEN THE HALLMARK OF "EVEN HANDED JUSTICE." 

                                 IV. 

OTHER CONTENTIONS OF RESPONDENTS ARE SUBJECT TO READY DISPOSITION. 
THEY SAY THAT NO RESTRAINT OF TRADE RESULTED FROM CBS' TERMINATION OF
ITS AFFILIATION WITH WCAN FOR THIS ENABLED IT TO SUPPORT WOKY, THE
OTHER UHF STATION IN THE MILWAUKEE AREA, WHICH BASED UPON POLLER'S OWN
ALLEGATIONS WAS DOOMED WITHOUT AN AFFILIATION.  TO THE EXTENT THAT THIS
ARGUMENT SUGGESTS THAT THERE IS NO VIOLATION OF THE ANTITRUST LAWS
BECAUSE THE PUBLIC WILL STILL RECEIVE THE SAME SERVICE, IT HAS BEEN
FORECLOSED BY THIS COURT'S DECISION IN KLOR'S V. BROADWAY-HALE STORES,
359 U.S. 207 (1959).  AND IF IT IS MEANT TO SAY THAT THERE WAS NO
RESTRAINT BECAUSE CBS IN CANCELING ITS AFFILIATION WITH WCAN WAS MERELY
DOING WHAT IT HAD A RIGHT TO DO AND THE RESULTING DEMISE OF WCAN
FOLLOWED FROM NORMAL MARKET CONDITIONS, IT ERRONEOUSLY ASSUMES THAT CBS
HAD AN ABSOLUTE RIGHT DESPITE VIOLATIONS OF THE ANTITRUST LAWS TO
EXERCISE ITS CONTRACTUAL PRIVILEGE.  SEE PART III, SUPRA.  A FURTHER
ANSWER TO THE RESPONDENTS' CONTENTION IN THIS REGARD IS THAT POLLER HAS
AN ADDITIONAL CLAIM THAT PART OF THE CONSPIRACY WAS THE DESTRUCTION OF
UHF BROADCASTING ENTIRELY.  THE SOLE ANSWER TO CBS TO THAT IS "THERE IS
NOT A SHRED OF EVIDENCE" TO SUPPORT SUCH A CHARGE.  HOWEVER, THERE HAS
BEEN NO TRIAL AS YET, AND THE ISSUE REMAINS A FACTUAL ONE DISPUTED
UNDER THE PLEADINGS AND STILL UNDETERMINED. 

CBS CONTENDS THAT THE MONOPOLIZATION CHARGES ARE FRIVOLOUS.  WE FIND
THE RECORD UNCLEAR ON THESE CLAIMS.  IN VIEW OF OUR REMAND FOR A TRIAL
ON THE MERITS, WE FOREGO ANY COMMENT THEREON.  THE COMPLAINT DOES NOT
ALLEGE THE RELEVANT MARKET INVOLVED.  IN THE TRIAL COURT IT WAS ARGUED
THAT UHF BROADCASTING IN MILWAUKEE WAS THE MARKET, BUT ON THE RECORD
HERE WE ARE UNABLE TO DETERMINE THAT ISSUE.  IT MAY WELL BE THAT ON A
TRIAL APPROPRIATE ALLEGATIONS AND PROOF CAN BE ADDUCED SHOWING
VIOLATIONS OF SEC. 2.  SEE GENERALLY INTERNATIONAL BOXING CLUB V.
UNITED STATES, 358 U.S. 242, 249-252 (1959); UNITED STATES V. E.I. DU
PONT DE NEMOURS & CO., 353 U.S. 586, 648-654 (1957)(DISSENTING
OPINION).  WE BELIEVE IT TO BE GOOD JUDICIAL ADMINISTRATION TO WITHHOLD
DECISION ON THESE ISSUES.  REVERSED AND REMANDED. 

FN1  SECTION 1 OF THE SHERMAN ACT PROVIDES THAT:  "EVERY CONTRACT,
COMBINATION IN THE FORM OF TRUST OR OTHERWISE, OR CONSPIRACY, IN
RESTRAINT OF TRADE OR COMMERCE AMONG THE SEVERAL STATES, OR WITH
FOREIGN NATIONS, IS HEREBY DECLARED TO BE ILLEGAL  ...  ."  26 STAT.
209, AS AMENDED, 15 U.S.C. SEC. 1. 

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  ...  ."  26 STAT. 209, AS AMENDED, 15
U.S.C. SEC. 2. 

FN2  THE TERMS ULTRA HIGH FREQUENCY (UHF) AND VERY HIGH FREQUENCY
(VHF) REFER TO THE WAVE LENGTHS OF THE ELECTRICAL IMPULSES WHICH ARE
PROJECTED BY BROADCASTING STATIONS TO CARRY PROGRAMS TO RECEIVING
SETS.  PRIOR TO 1952 ONLY THE VHF PORTION OF THE SPECTRUM WAS
AUTHORIZED.  GENERALLY TV RECEIVERS ARE MANUFACTURED ONLY TO RECEIVE
VHF SIGNALS AND MUST BE MODIFIED BY AN OWNER TO RECEIVE UHF. 

FN3  THE CONSPIRATORS WERE ALLEGED TO BE COLUMBIA BROADCASTING
SYSTEMS, INC.; CBS-TV; J.L.  VAN VOLKENBURG, PRESIDENT OF CBS-TV; H.K.
AKERBERG, VICE PRESIDENT OF CBS-TV; BARTELL BROADCASTERS, INC., OWNERS
OF WOKY; AND THAD HOLT, A MANAGEMENT CONSULTANT. 

FN4  WE DO NOT PASS UPON THE POINT URGED BY POLLER THAT UNDER THE CBS
CORPORATE ARRANGEMENT OF DIVISIONS, WITH SEPARATE OFFICERS AND AUTONOMY
IN EACH, THE DIVISIONS CAME WITHIN THE RULE AS TO CORPORATE
SUBSIDIARIES. 

FN5  11 PIKE AND FISCHER RADIO REG. 913, 914. 

FN6  INDEED, SUCH ACTION WOULD BE UNREASONABLE IN LIGHT OF THE
SUCCESS OF MIDWEST'S INITIAL OPERATION AND ITS HIGHLY FAVORABLE
PROSPECTS WITH THE EXPANDED FACILITIES AND NEW EQUIPMENT. 

FN7  COMPARE KENNEDY V. SILAS MASON CO., 334 U.S. 249, 256-257
(1948); ARENAS V. UNITED STATES, 322 U.S. 419, 434 (1944). 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
WHITTAKER AND MR. JUSTICE STEWART JOIN, DISSENTING. 

AS I SEE IT, THIS IS ONE OF THOSE CASES, NOT UNFAMILIAR IN TREBLE
DAMAGE LITIGATION, WHERE INJURY RESULTING FROM NORMAL BUSINESS HAZARDS
IS SOUGHT TO BE MADE REDRESSABLE BY CASTING THE AFFAIR IN ANTITRUST
TERMS.  I THINK THAT THE ANTITRUST LAWS DO NOT FIT THIS CASE, AND THAT
THE COURTS BELOW WERE QUITE CORRECT IN HOLDING THAT THE RESPONDENTS
WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW. 

THE LITIGATION ARISES OUT OF CBS' CANCELLATION OF AN AFFILIATION
ARRANGEMENT WITH WCAN, A UHF TELEVISION BROADCASTING STATION IN
MILWAUKEE, OWNED BY MIDWEST BROADCASTING COMPANY OF WHOSE PROPERTY
POLLER IS ASSIGNEE.  CBS MAINTAINS THAT SUCH CANCELLATION WAS BUT THE
LEGITIMATE EXERCISE OF A CONTRACTUAL RIGHT.  POLLER SAYS THAT IT WAS
PART OF A CONSPIRACY TO RESTRAIN AND MONOPOLIZE TRADE IN THE TELEVISION
BROADCASTING BUSINESS, VIOLATIVE OF SECS. 1 AND 2 OF THE SHERMAN ACT. 
SUING UNDER SEC. 4 OF THE CLAYTON ACT, (FN1) POLLER SEEKS TO RECOVER AS
DAMAGES THE TREBLED FAIR VALUE OF THE WCAN STATION AND EQUIPMENT, WHOSE
SALE TO CBS AT A DISTRESS PRICE HE CLAIMS WAS FORCED UPON HIM IN
CONSEQUENCE OF CBS' CANCELLATION OF THE WCAN AFFILIATION CONTRACT. 

POLLER ASSERTS THAT CBS, JOINED BY OTHERS AS CONSPIRATORS, WANTED TO
PUT HIM OUT OF BUSINESS AS THE FIRST STEP IN A GRAND DESIGN TO DESTROY
UHF BROADCASTING IN MILWAUKEE, IF NOT INDEED THROUGHOUT THE UNITED
STATES.  IT IS SAID THAT CBS LOOKED WITH DISFAVOR UPON THE GROWTH OF
UHF BROADCASTING, BEING ITSELF ALREADY HEAVILY COMMITTED TO VHF.  AS
SUBSIDIARY STEPS TOWARDS THE EFFECTUATION OF THIS PLAN, IT IS CHARGED
THAT CBS CHILLED PROSPECTIVE PURCHASERS OF WCAN; ACQUIRED THE ONLY THEN
COMPETING UHF STATION IN MILWAUKEE, WOKY; AND LATER CLOSED THAT STATION
DOWN.  (FN2)  CBS' CO-CONSPIRATORS ARE SAID TO HAVE BEEN CBS
TELEVISION, AN UNINCORPORATED DIVISION OF CBS; CERTAIN OFFICERS OF CBS;
BARTELL, THE THEN OWNER OF WOKY; AND HOLT, A MANAGEMENT CONSULTANT, WHO
AT CBS' BEHEST OBTAINED FROM BARTELL AN OPTION TO PURCHASE WOKY. 

I ASSUME THAT POLLER WOULD BE ENTITLED TO PROCEED TO TRIAL IF THE
RECORD BEFORE THE DISTRICT COURT HAD LEFT OPEN A GENUINE QUESTION OF
FACT AS TO WHETHER THE ALLEGED CONSPIRACY HAD AS ITS OBJECT THE
ELIMINATION OF ALL UHF STATIONS IN THE MILWAUKEE AREA, OR EVEN IF IT
APPEARED THAT PETITIONER MIGHT PROVE THAT THE RESPONDENTS ENTERED UPON
THIS COURSE IN ORDER TO REDUCE THE NUMBER OF UHF STATIONS IN MILWAUKEE
FROM TWO TO ONE, WHICH WAS TO BE OWNED OUTRIGHT BY CBS.  (FN3)  BUT,
FOR REASONS GIVEN BELOW, I THINK THAT THE DEPOSITIONS AND AFFIDAVITS
WHICH WERE BEFORE THE DISTRICT COURT DISCLOSED TO A PRACTICAL CERTAINTY
THAT SUCH PROOF COULD NOT BE MADE. 

WHAT DID REMAIN OPEN TO PROOF WAS AN ALLEGED ARRANGEMENT AMONG CBS,
ITS TELEVISION DIVISION, AND ITS OFFICERS AND AGENTS WHEREBY CBS
CANCELED AN AFFILIATION WITH ONE UHF STATION AND PURCHASED THE
FACILITIES OF A COMPETING STATION.  EVEN IF SOMEWHERE AMONG THOSE
SOUGHT TO BE DRAWN INTO PETITIONER'S NET THERE CAN BE FOUND TWO
INDEPENDENT ACTORS WHOSE MEETING OF MINDS WOULD SATISFY THE USUAL
CONSPIRACY REQUIREMENT OF "PLURALITY OF PARTIES," (FN4) THEIR AGREEMENT
TO CARRY OUT THAT DESIGN WOULD NOT, IN MY VIEW, OF ITSELF OFFEND
ANYTHING PROSCRIBED BY SECS. 1 AND 2 OF THE SHERMAN ACT. 

                            I. 

IN PASSING ON THE MOTION FOR SUMMARY JUDGMENT, THE DISTRICT COURT HAD
BEFORE IT MORE THAN THE FOUR AFFIDAVITS OF INTERESTED PARTIES TO WHICH
THE COURT'S OPINION SEEMS ESPECIALLY TO REFER (ANTE, PP. 468, 473).  IN
THE RECORD WAS THE TESTIMONY OF FOUR KEY WITNESSES TAKEN BY PRETRIAL
DEPOSITIONS.  PETITIONER'S COUNSEL HAD EXAMINED FRANK STANTON,
PRESIDENT OF CBS; RICHARD SALANT, A VICE-PRESIDENT OF CBS; AND THAD
HOLT, WHO ACTED FOR CBS IN PROCURING THE OPTION ON THE BARTELL
STATION.  (FN5) PETITIONER'S TESTIMONY WAS ALSO IN THE RECORD IN THE
FORM OF A DEPOSITION TAKEN BY RESPONDENTS' COUNSEL, AND TWO AFFIDAVITS
SUBMITTED IN OPPOSTION TO THE MOTION FOR SUMMARY JUDGMENT.  IN
ADDITION, THE RECORD CONTAINED THE RESPONDENTS' ANSWERS TO WRITTEN
INTERROGATORIES PUT BY THE PETITIONER.  IT IS IN LIGHT OF THIS FAR FROM
MEAGER PRETRIAL DISCOVERY THAT THE APPROPRIATENESS OF SUMMARY JUDGMENT
MUST BE EVALUATED. 

FEDERAL RULE OF CIVIL PROCEDURE 56(C) AUTHORIZES A DISTRICT COURT TO
ENTER SUMMARY JUDGMENT: 

"IF THE PLEADINGS, DEPOSITIONS, AND ADMISSIONS ON FILE, TOGETHER WITH
THE AFFIDAVITS, IF ANY, SHOW THAT THERE IS NO GENUINE ISSUE AS TO ANY
MATERIAL FACT AND THAT THE MOVING PARTY IS ENTITLED TO A JUDGMENT AS A
MATTER OF LAW." 

IN SO PROVIDING, THE DRAFTSMEN OF THE RULE OF COURSE DID NOT INTEND
TO CUT OFF A LITIGANT'S RIGHT TO A TRIAL BEFORE THE APPROPRIATE FACT
FINDER IF TRIABLE ISSUES REMAINED UNRESOLVED AFTER THE PLEADINGS WERE
CLOSED AND PRETRIAL DISCOVERY HAD.  SARTOR V. ARKANSAS NATURAL GAS
CORP., 321 U.S. 620, 627; FOUNTAIN V. FILSON, 336 U.S. 681.  ON THE
OTHER HAND, IT IS EQUALLY CLEAR THAT THEIR PURPOSE WAS TO OBVIATE
TRIALS WHICH WOULD SERVE NO USEFUL PURPOSE.  IN ADMINISTERING THE RULE,
THE AVAILABILITY OF PRETRIAL DISCOVERY, AS WELL AS MATTER ACTUALLY
DISCOVERED, IS A FACTOR TO BE CONSIDERED IN DETERMINING WHETHER A
"GENUINE ISSUE AS TO ANY MATERIAL FACT" IS OPEN.  E.G., SCHNEIDER V.
MCKESSON & ROBBINS, INC., 254 F.2D 827, 831.  FURTHER, THE RULE DOES
NOT INDICATE THAT IT IS TO BE USED ANY MORE "SPARINGLY" IN ANTITRUST
LITIGATION (ANTE, P. 473) THAN IN OTHER KINDS OF LITIGATION, OR THAT
ITS EMPLOYMENT IN ANTITRUST CASES IS SUBJECT TO MORE STRINGENT CRITERIA
THAN IN OTHERS.  ON THE CONTRARY, WITHOUT REFLECTING IN ANY WAY UPON
THE GOOD FAITH OF THIS PARTICULAR LAWSUIT, HAVING REGARD FOR THE
SPECIAL TEMPTATIONS THAT THE STATUTORY PRIVATE ANTITRUST REMEDY AFFORDS
FOR THE INSTITUTION OF VEXATIOUS LITIGATION, AND THE INORDINATE AMOUNT
OF TIME THAT SUCH CASES SOMETIMES DEMAND OF THE TRIAL COURTS, THERE IS
GOOD REASON FOR GIVING THE SUMMARY JUDGMENT RULE ITS FULL LEGITIMATE
SWEEP IN THIS FIELD. 

IN THIS CASE PETITIONER, THE PARTY OPPOSING THE MOTION, HAD COMPLETE
ACCESS BY MEANS OF PRETRIAL DISCOVERY TO ALL THE EVIDENCE HE COULD
MARSHAL AT A TRIAL ON THE MERITS.  (FN6)  NEITHER HIS CROSS-EXAMINATION
OF HOSTILE WITNESSES NOR HIS OWN DIRECT TESTIMONY BY WAY OF DEPOSITION
AND AFFIDAVIT PRODUCED ANY EVIDENCE WHICH WOULD INDICATE THAT THE
RESPONDENTS SOUGHT TO ACCOMPLISH ANYTHING MORE THAN TO PURCHASE FOR CBS
A UHF STATION IN MILWAUKEE.  AS THE COURT'S OPINION SEEMS TO RECOGNIZE,
SUCH A PURCHASE (ACCOMPANIED BY A CANCELLATION OF PETITIONER'S STATION
AFFILIATION) WOULD BE UNLAWFUL ONLY IF "CONCEIVED IN A PURPOSE TO
UNREASONABLY RESTRAIN TRADE, CONTROL A MARKET, OR MONOPOLIZE."  (ANTE,
P. 469.)  IN OTHER WORDS, UNLESS A PURPOSE TO CANCEL PETITIONER'S
AFFILIATION AND PURCHASE THE BARTELL STATION WOULD, BY ITSELF, BE
UNLAWFUL, PETITIONER COULD PREVAIL IN THIS SUIT ONLY IF HE PROVED THAT
THE RESPONDENTS INTENDED TO STIFLE COMPETITION IN, OR MONOPOLIZE,
TELEVISION BROADCASTING, EITHER BY CLOSING DOWN HIS STATION OR, MORE
BROADLY, BY DESTROYING THE UHF BUSINESS IN WHOLE OR IN PART.  (FN7) 

THIS CRUCIAL ISSUE, THEREFORE, TURNS ON PROOF OF THE RESPONDENTS'
MOTIVES.  HAD PETITIONER PROCEEDED TO TRIAL AND INTRODUCED NO MORE
EVIDENCE OF MOTIVE THAN WAS REVEALED BY THE PRETRIAL DEPOSITIONS AND
AFFIDAVITS, THE CASE, IN MY OPINION, COULD NOT WELL HAVE BEEN PERMITTED
TO GO TO THE JURY.  THERE BEING NO EXTRINSIC EVIDENCE OF AN UNLAWFUL
PURPOSE, AND CBS' EXECUTIVES HAVING UNEQUIVOCALLY DENIED ANY PURPOSE TO
ELIMINATE PETITIONER AS A COMPETITOR, THE JURY WOULD BE LEFT WITH NO
AFFIRMATIVE EVIDENCE OF ANY INTENT TO RESTRAIN TRADE.  THE POSSIBILITY
THAT THE JURY MIGHT DISBELIEVE THE RESPONDENTS' ASSERTIONS OF INNOCENCE
IS NOT ENOUGH TO FORESTALL THE ENTRY OF SUMMARY JUDGMENT IN THEIR
FAVOR.  DYER V. MACDOUGALL, 201 F.2D 265. 

DESPITE THE AMPLE OPPORTUNITY AFFORDED HIM BY THE AVAILABILITY OF
PRETRIAL DISCOVERY PROCEDURES, PETITIONER, AS WILL BE SHOWN, WAS ABLE
TO PRODUCE NO EVIDENCE TO SUPPORT HIS CHARGES THAT A CONSPIRACY, NARROW
OR FAR-REACHING, HAD BEEN HATCHED.  HE SHOULD NOT BE PERMITTED TO
PROCEED TO TRIAL JUST ON THE HOPE THAT IN THE MORE FORMAL ATMOSPHERE OF
THE COURTROOM WITNESSES WILL REVISE THEIR TESTIMONY OR THAT A CLEVER
TRIAL TACTIC WILL PRODUCE HELPFUL EVIDENCE.  COURTS DO NOT EXIST TO
AFFORD OPPORTUNITIES FOR SUCH LITIGATING GAMBLES.  SEE RADIO CITY MUSIC
HALL CORP. V. UNITED STATES, 135 F.2D 715; SCHNEIDER V. MCKESSON &
ROBBINS, INC., SUPRA; CF. ORVIS V. BRICKMAN, 90 U.S. APP. D.C. 266,
270, 196 F.2D 762, 765-766; LAVINE V. SHAPIRO, 257 F.2D 14, 20-21. 
                                        II. 

I FIND NOTHING IN THIS RECORD TO SUPPORT A CLAIM THAT CBS, IN
PROCEEDING AS IT DID, WAS ACTUATED BY A DESIRE TO RESTRAIN OR
MONOPOLIZE TRADE. 

IT APPEARS FROM QUESTIONS ASKED OF STANTON AND SALANT, TWO CBS
OFFICERS, THAT PETITIONER SOUGHT TO IMPLY AN UNLAWFUL MOTIVE TO DESTROY
COMPETITION FROM CBS' FAILURE TO NEGOTIATE WITH HIM IN THE FIRST
INSTANCE FOR THE PURCHASE OF WCAN.  WERE IT SHOWN THAT RESPONDENTS
REFUSED TO CONSIDER PURCHASING PETITIONER'S INSTEAD OF BARTELL'S
STATION, ALTHOUGH THE FORMER WAS AVAILALBE ON SATISFACTORY TERMS, SUCH
A SHOWING MIGHT BE SOME EVIDENCE OF AN INTENT TO ELIMINATE PETITIONER
AS A COMPETITOR OF THE OTHER STATION BOUGHT BY CBS.  BUT THE RECORD
SHOWS THAT RESPONDENTS THROUGHOUT INSISTED THAT THEIR REFUSAL TO DEAL
WITH PETITIONER WAS THE RESULT OF INFORMATION THAT HE HAD PLACED AN
EXORBITANT PRICE ON HIS STATION.  THAT INSISTENCE, WHICH POLLER DID NOT
CONTROVERT OR HIMSELF IMPUGN, IS CONFIRMED BY HIS OWN COMPUTATION OF
DAMAGES IN THIS CASE, AS WELL AS BY HIS DEPOSITION TESTIMONY WHICH
REVEALS THAT HE VALUED THE WCAN PROPERTY AT $2,000,000 AND DEMANDED
THAT PRICE OF ALL INTERESTED PURCHASERS.   CBS BOUGHT THE BARTELL
STATION, ALTHOUGH TO BE SURE IT HAD SUBSTANTIALLY INFERIOR FACILITIES,
FOR $335,000. 

NOR IS THERE ANY EVIDENCE IN THE RECORD TO INDICATE THAT THE
RESPONDENTS ANTICIPATED PETITIONER'S OFFER TO SELL HIS FACILITIES TO
CBS.  IT IS CLEAR FROM THE AFFIDAVITS AND DEPOSITIONS, AND IS, IN FACT,
CONCEDED IN PETITIONER'S BRIEF BEFORE THIS COURT, THAT IT WAS
PETITIONER WHO INITIATED THE NEGOTIATIONS AND "IMPORTUNED CBS TO TAKE
HIS EQUIPMENT OFF HIS HANDS."  PETITIONER CONTENDS THAT THE RESPONDENTS
KNEW HE WOULD HAVE NO USE FOR THE RECENTLY ENLARGED PLANT ONCE HIS CBS
AFFILIATION WAS CANCELED, SO THAT HIS OFFER OF SALE WAS A NECESSARY
CONSEQUENCE OF THE DISAFFILIATION.  BUT THIS PROVES ONLY THAT
PETITIONER'S INJURY MAY AS READILY HAVE BEEN THE RESULT OF CBS' LAWFUL
PROGRAM OF EXPANSION AS OF AN INVIDIOUS SCHEME TO RESTRAIN
COMPETITION.  IT BUTTRESSES THE CONCLUSION REACHED BY THE COURT OF
APPEALS (109 U.S. APP. D.C. 170, 173, 176, 284 F.2D 599, 602, 605) THAT
THE DIMINUTION IN THE VALUE OF PETITIONER'S PROPERTY WAS ATTRIBUTABLE
TO PETITIONER'S IMPRUDENT INVESTMENT (FN8) RATHER THAN TO ANY ANTITRUST
CONSPIRACY BY THE RESPONDENTS.  IN ADDITION, PETITIONER'S SURMISE THAT
THE RESPONDENTS MUST HAVE KNOWN THAT THE CANCELLATION OF POLLER'S
AFFILIATION WOULD RESULT IN HIS OFFERING HIS EQUIPMENT TO CBS IS HARDLY
CONSISTENT WITH THE FACT, SWORN TO BY SALANT AND NEVER TRAVERSED, THAT
CBS HAD ITS ENGINEERING DEPARTMENT DRAW UP COMPLETE PLANS AS TO HOW THE
BARTELL FACILITIES COULD BE EXPANDED TO MAKE THEM SUITABLE FOR CBS'
INTENDED USE. 

FINALLY, IT IS ENTIRELY CLEAR FROM THE RECORD THAT PETITIONER WAS
UNABLE TO PROVE THAT THE RESPONDENTS' MOTIVE WAS TO ELIMINATE HIS
STATION.  IT IS UNDISPUTED THAT AT THE TIME HOLT OBTAINED THE OPTION ON
THE BARTELL STATION BOTH THE AMERICAN BROADCASTING AND DUMONT NETWORKS
HAD NO PRIMARY AFFILIATES IN THE MILWAUKEE MARKET.  THERE IS NOTHING TO
INDICATE THAT RESPONDENTS SHOULD HAVE ANTICIPATED AT THE BIRTH OF THEIR
ALLEGED CONSPIRACY THAT SUCH AFFILIATIONS WOULD BE UNAVAILABLE TO
PETITIONER IF THE CBS TIE WERE BROKEN.  MOREOVER, IT IS PATENT FROM THE
TERMS OF THE CONTRACT UNDER WHICH CBS PURCHASED PETITIONER'S EQUIPMENT
THAT PETITIONER REPRESENTED TO THE RESPONDENTS THAT HE WOULD CONTINUE
BROADCASTING OPERATIONS AS AN INDEPENDENT FROM THE STUDIO FORMERLY
OCCUPIED BY BARTELL.  (FN9)  IT WAS ONLY AFTER THIS REPRESENTATION WAS
MADE, ALBEIT, AS PETITIONER NOW CLAIMS, WITH ONLY "ABOUT A 5 PER CENT
HOPE" THAT HE WOULD BE ABLE TO CONTINUE, THAT THE EXCHANGE OF
FACILITIES WAS CONSUMMATED.  THE TRANSACTION WAS IN ALL WAYS CONSISTENT
WITH THE PARTIES' WRITTEN INTENTION TO MAINTAIN TWO OPERATING UHF
STATIONS IN MILWAUKEE.  FOR IT WAS SURELY MUCH MORE LIKELY THAT
PETITIONER COULD SURVIVE AS AN INDEPENDENT BY USING THE SMALLER BARTELL
PLANT THAN BE REMAINING IN HIS ENLARGED STUDIO, WHICH HAD ABSORBED A
LARGE AMOUNT OF CAPITAL THAT COULD NOT, AT LEAST IMMEDIATELY, BE PUT TO
FRUITFUL USE. 

IN SUM, THE DISTRICT COURT HAD BEFORE IT ON THIS MOTION FOR SUMMARY
JUDGMENT A RECORD ON WHICH IT WAS APPARENT THAT PETITIONER COULD PROVE
ONLY THAT CBS HAD UNDERTAKEN TO CANCEL ITS AFFILIATION WITH
PETITIONER'S STATION AND, WITH HOLT'S ASSISTANCE, TO PURCHASE A
COMPETING UHF STATION.  ONLY IF SUCH A "CONSPIRACY" IS PROHIBITED BY
SEC. 1 OR SEC. 2 OF THE SHERMAN ACT SHOULD THE PETITIONER HAVE BEEN
PERMITTED TO PROCEED TO TRIAL. 

                                             III. 

RESPONDENTS FREELY ADMIT THAT THE PURCHASE OF THE BARTELL STATION AND
THE CANCELLATION OF PETITIONER'S AFFILIATION WERE PARTS OF ONE COURSE
OF ACTION.  THEY MAINTAIN, HOWEVER, THAT THEIR INTENTION WAS TO
PURCHASE A UHF STATION IN MILWAUKEE AS THE FIRST STEP IN AN INCIPIENT
PROGRAM OF EXPANSION INTO THE UHF MARKET, MADE POSSIBLE BY THE FEDERAL
COMMUNICATIONS COMMISSION'S THEN RECENTLY ADOPTED "5-AND-2" AMENDMENT
TO ITS MULTIPLE-OWNERSHIP RULE.  BY REASON OF THIS AMENDMENT, A SINGLE
LICENSEE WAS PERMITTED TO OWN TWO UHF STATIONS IN ADDITION TO THE
MAXIMUM FIVE VHF STATIONS THERETOFORE ALLOWED.  I WOULD HOLD THAT AN
ARRANGEMENT TO ATTAIN THIS OBJECTIVE DID NOT, OF ITSELF, VIOLATE SEC. 1
OF THE SHERMAN ACT.  IT MUST BE OBVIOUS THAT THE CANCELLATION OF AN
AFFILIATION AGREEMENT BY ONE NETWORK, NOT ACTING IN CONCERT WITH ANY
OTHER, DOES NOT ALONE GIVE RISE TO A CAUSE OF ACTION UNDER THE
ANTITRUST LAWS.  FEDERAL BROADCASTING SYSTEM, INC., V. AMERICAN
BROADCASTING CO., 167 F.2D 349.  A NETWORK IS SURELY FREE TO CUT ITS
TIES TO ONE STATION AND AFFILIATE WITH ANOTHER IN THE SAME MARKET. 
SUCH AN ACT IS ANALOGOUS TO A MANUFACTURER'S TRANSFER OF AN EXCLUSIVE
DISTRIBUTORSHIP FROM ONE DEALER IN THE MARKET TO ANOTHER.  THIS FREEDOM
TO CHOOSE WITH WHOM ONE DEALS IS PRESERVED UNDER THE ANTITRUST LAWS NOT
ONLY BECAUSE IT IS A UNILATERAL DECISION, BUT BECAUSE IT DOES NOT
AMOUNT TO AN UNREASONABLE RESTRAINT OF TRADE IN ANY MEANINGFUL SENSE OF
THE TERM, CF.  PACKARD MOTOR CAR CO. V. WEBSTER MOTOR CAR CO., 100 U.S.
APP. D.C. 161, 243 F.2D 418; FARGO GLASS & PAINT CO. V. GLOBE AMERICAN
CORP., 201 F.2D 534. 

TO OVERCOME THESE APPARENT BARRIERS TO ANY HOLDING THAT SEC. 1 OF THE
SHERMAN ACT WAS HERE VIOLATED, PETITIONER SUGGESTS TWO THEORIES UNDER
WHICH RESPONDENTS' CONDUCT MIGHT CONSTITUTE A FORBIDDEN RESTRAINT OF
TRADE:  (1) THAT BY REASON OF THE "LEVERAGE OF ITS NETWORK POWER" CBS
WAS ABLE TO RESTRAIN TRADE AMONG THE INDEPENDENTLY OWNED UHF STATIONS
IN THE MILWAUKEE AREA; AND (2) THAT CBS' PURCHASE OF A TELEVISION
STATION AMOUNTED, PER SE, TO AN UNREASONABLE RESTRAINT OF TRADE.  HOW
EITHER OF THESE ALLEGED RESTRAINTS, ASSUMING THEY ARE UNLAWFUL, CAUSED
PETITIONER'S ALLEGED LOSS IS LEFT A MYSTERY.  REGARDLESS OF ANY
QUESTION OF CAUSATION, HOWEVER, PETITIONER CAN PREVAIL ON NEITHER
THEORY. 

TO THE EXTENT THAT THE "LEVERAGE" COMPLAINED OF CHARGES CBS WITH
MONOPOLIZING A MARKET, PETITIONER'S CLAIM FALLS UNDER SEC. 2, A MATTER
TO WHICH I WILL REVERT IN A MOMENT.  INFRA, PP. 485-486.  APART FROM
MONOPOLY POWER, THE RESPONDENTS COULD HAVE VIOLATED THE ANTITRUST LAWS
ONLY BY CONSPIRING IN SOME MANNER TO USE CBS'"LEVERAGE" TO RESTRAIN
TRADE.  CLEARLY, THE DISAFFILIATION ALONE WAS NOT AN UNLAWFUL USE OF
THE NETWORK'S POWER.  HAVING BUILT UP THE VALUE OF HIS STATION
SUBSTANTIALLY BECAUSE OF ITS CBS AFFILIATION, PETITIONER IS HARDLY IN A
POSITION TO CLAIM THAT BY DEPRIVING HIM, IN THE EXERCISE OF A CONTRACT
RIGHT, OF THE BENEFIT OF SUCH AN AFFILIATION CBS WAS UNREASONABLY
EXERCISING ITS SUPERIOR POWER TO RESTRAIN TRADE.  AND THERE IS NO
INDICATION IN THE RECORD THAT THIS "LEVERAGE" IN ANY WAY AFFECTED THE
PURCHASE PRICE OF PETITIONER'S EQUIPMENT, EVEN WERE IT TO BE ASSUMED
THAT THE RESPONDENTS FORESAW THAT PETITIONER WOULD BE WILLING TO SELL. 
THE CHARGES HERE ARE UNLIKE THOSE IN UNITED STATES V. RADIO CORPORATION
OF AMERICA, 158 F. SUPP. 333, REVERSED, 358 U.S. 334, IN WHICH THE
GOVERNMENT SOUGHT TO ENJOIN, AS VIOLATING SEC. 1, A NETWORK'S ATTEMPT
TO COERCE AN INDEPENDENT OWNER INTO SELLING HIS STATION TO THE NETWORK
UNDER THREAT OF CANCELING THE NETWORK'S AFFILIATION WITH OTHER STATIONS
UNDER THE SAME OWNERSHIP.  IN THIS CASE THERE IS NO CLAIM MADE THAT CBS
CONDITIONED THE CONTINUATION OF SOME NETWORK SERVICE UPON PETITIONER'S
CONSENT TO SELL HIS EQUIPMENT, OR ON HIS WILLINGNESS TO REDUCE HIS
PRICE. 

NOR CAN I AGREE THAT THE CONTRACT WHEREBY CBS BECAME A STATION OWNER
IN THE MILWAUKEE MARKET WAS, IN AND OF ITSELF, A CONTRACT IN RESTRAINT
OF TRADE.  PETITIONER IS UNABLE TO POINT TO ANY CONVINCING DIFFERENCES
BETWEEN THE VERTICAL INTEGRATION THAT IS ACCOMPLISHED WHEN A NETWORK
PURCHASES A STATION AND THAT WHICH RESULTS FROM AN AFFILIATION
CONTRACT.  MOREOVER, THE VERY CONTENTION NOW BEING MADE HERE BY THE
PETITIONER HAS REPEATEDLY BEEN PRESENTED TO THE FEDERAL COMMUNICATIONS
COMMISSION, AND THAT AGENCY HAS CONSISTENTLY ADHERED TO THE VIEW THAT
NETWORK OWNERSHIP OF STATIONS, SUBJECT, OF COURSE, TO THE MAXIMUM
OWNERSHIP LIMITATION, IS NOT CONTRARY TO THE PUBLIC INTEREST.  E.G.,
ABC-PARAMOUNT MERGER, 8 PIKE AND FISCHER RADIO REG. 541; ST. LOUIS
TELECAST, INC., 12 PIKE AND FISCHER RADIO REG. 1289, 1372; NATIONAL
BROADCASTING CO., 20 PIKE AND FISCHER RADIO REG. 411, 419. 

THIS COURT HAS ALSO BEEN RELUCTANT TO HOLD THAT VERTICAL EXPANSION
ALONE CAN AMOUNT TO AN UNREASONABLE RESTRAINT PROHIBITED BY SEC. 1 OF
THE SHERMAN ACT.  UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S.
131, 173-174; UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, 525. 
WITHOUT OF COURSE SUGGESTING THAT THE FEDERAL COMMUNICATIONS COMMISSION
HAS AUTHORITY TO ALLEVIATE AN APPLICANT FOR A STATION LICENSE FROM THE
REQUIREMENTS OF THE ANTITRUST LAWS, UNITED STATES V. RADIO CORPORATION
OF AMERICA, 358 U.S. 334, IN LIGHT OF THE UNIFORM COURSE OF DECISIONS
BY THE AGENCY FAMILIAR WITH THE FIELD, AND IN THE ABSENCE OF ANY
INDICATION THAT THIS PARTICULAR PURCHASE IN FACT RESTRAINED TRADE, I
THINK IT IS CLEAR THAT PETITIONER'S INJURY, EVEN IF IT BE ASSUMED
PARTIALLY ATTRIBUTABLE TO CBS' PURCHASE, MAY NOT BE MADE THE BASIS OF A
TREBLE-DAMAGE ACTION. 

PETITIONER'S SEC. 2 CLAIM IS IF ANYTHING EVEN MORE INSUBSTANTIAL.  HE
CONTENDS THAT RESPONDENTS CONSPIRED TO MONOPOLIZE THE UHF MARKET IN
MILWAUKEE, AND PERHAPS ACROSS THE COUNTRY, AND THAT THEY SUCCEEDED IN
THEIR ATTEMPT, AT LEAST IN MILWAUKEE.  BUT IT IS UNDISPUTED THAT THE
TELEVISION SETS BEING PRODUCED AND SOLD IN THE MILWAUKEE AREA AT THE
TIME OF THE ALLEGED CONSPIRACY WERE ALL EQUIPPED TO RECEIVE VHF
BROADCASTS AND COULD BE ADAPTED TO RECEIVE UHF SIGNALS AS WELL.  THUS,
ANY UHF STATION WAS NECESSARILY IN COMPETITION WITH ALL VHF STATIONS IN
THE MARKET WITH RESPECT TO BOTH THE VIEWING AND THE ADVERTISING
PUBLIC.  INDEED, AS THE RECORD UNCONTROVERTEDLY SHOWS, THE CBS STATION
ULTIMATELY SUCCUMBED BECAUSE THE VHF COMPETITION WAS TOO STRONG.  SINCE
CBS WAS PATENTLY NOT A MONOPOLIST IN THE MILWAUKEE MARKET (WHICH
INCLUDED BOTH UHF AND VHF), AND SINCE THERE WAS NO ALLEGATION THAT IT
APPROACHED MONOPOLY POWER IN ANY OTHER MARKET IN WHICH PETITIONER WAS A
COMPETITOR, THE ENTRY OF SUMMARY JUDGMENT IN FAVOR OF THE RESPONDENTS
ON THIS CLAIM TOO WAS EMINENTLY CORRECT. 

I HAVE GONE INTO THIS MATTER AT SOME LENGTH BECAUSE IN MY OPINION THE
COURT'S ENCOURAGEMENT OF THIS SORT OF ANTITRUST "ENFORCEMENT" DOES
DISSERVICE TO THE HEALTHY OBSERVANCE OF THESE LAWS.  I WOULD AFFIRM. 

FN1  UNDER 15 U.S.C. SEC. 15 "ANY PERSON WHO SHALL BE INJURED IN HIS
BUSINESS OR PROPERTY BY REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST
LAWS IS GIVEN A PRIVATE RIGHT OF ACTION." 

FN2  THE LAST OF THESE ALLEGATIONS WAS NOT INCLUDED IN THE COMPLAINT
SINCE THE STATION ACQUIRED BY CBS DID NOT CEASE OPERATIONS UNTIL AFTER
THIS SUIT WAS BROUGHT.  IT WAS ALLEGED, HOWEVER, IN PETITIONER'S
SUPPLEMENTAL AFFIDAVIT IN RESPONSE TO THE MOTION FOR SUMMARY JUDGMENT. 

FN3  IF SUCH ISSUES OF FACT WERE OPEN AND PETITIONER COULD PROVE AT
THE TRIAL THAT RESPONDENTS' MOTIVES WERE UNLAWFUL, I THINK IT WOULD
STILL BE INCUMBENT UPON HIM TO PROVE THAT THE DISAFFILIATION OF WCAN
WAS PART OF THE ILLEGAL SCHEME.  THERE IS EVIDENCE IN THE RECORD, NOT
CONTRADICTED, TENDING TO SHOW THAT CBS WOULD HAVE CANCELED THAT
AFFILIATION WITHOUT REGARD TO ITS PURCHASE OF THE BARTELL STATION.  IF
SO, MUCH, IF NOT ALL, OF PETITIONER'S ALLEGED LOSS WOULD HAVE BEEN
INCURRED BECAUSE OF THIS UNILATERAL ACT, AND NOT "BY REASON OF ANYTHING
FORBIDDEN IN THE ANTITRUST LAWS." 

FN4  WHILE I DO NOT REACH RESPONDENTS' CONTENTION THAT NO CONSENSUAL
ARRANGEMENT OF ANY KIND WAS SHOWN, I MUST SAY THAT THE COURT HAS
STRETCHED VERY FAR IN SUGGESTING THAT HOLT MAY HAVE BEEN A
"CONSPIRATOR."  THE RECORD SHOWS, BEYOND ANY REAL POSSIBILITY OF
CONTRADICTION, THAT HOLT WAS SIMPLY ENGAGED BY CBS TO ACT FOR IT, AS
UNDISCLOSED PRINCIPAL, IN PROCURING FROM BARTELL AN OPTION TO PURCHASE
WOKY.  SO FAR AS BARTELL IS CONCERNED, IT STANDS UNCONTROVERTED IN THE
RECORD THAT HE NEVER KNEW OF CBS'S INTEREST IN HOLT'S OPTION UNTIL IT
WAS EXERCISED BY CBS. 

FN5 THE RECORD SHOWS THAT THE UNDISCLOSED EMPLOYMENT OF HOLT WAS DUE
TO CBS' DESIRE TO KEEP ITS COMPETITORS, PARTICULARLY THE NATIONAL
BROADCASTING COMPANY, FROM KNOWLEDGE OF ITS INTENTIONS RESPECTING
WOKY.  THIS IS, OF COURSE, A PERFECTLY NORMAL BUSINESS PHENOMENON. 

FN6  THERE IS NO SUGGESTION THAT PETITIONER WAS NOT AFFORDED
OPPORTUNITY TO EXAMINE ANY WITNESS HE WANTED, EITHER BEFORE OR AFTER
RESPONDENTS MADE THEIR MOTION FOR SUMMARY JUDGMENT. 

FN7  THE ASSERTION THAT RESPONDENTS SOUGHT TO DESTROY "THE UHF
INDUSTRY  ...  BECAUSE OF THE ENORMOUS ECONOMIC INVESTMENT THEY HAD IN
VHF," UPON WHICH THE COURT RELIES (ANTE, P. 469), WAS NOT MADE IN ANY
OF THE PAPERS FILED WITH THE DISTRICT COURT.  IT WAS FIRST RAISED
DURING ORAL ARGUMENT ON THE MOTION FOR SUMMARY JUDGMENT.  THERE IS
NOTHING IN THE RECORD TO SUPPORT THIS CHARGE EXCEPT THE HINDSIGHT
INFERENCE ARISING FROM THE FACT THAT AFTER FOUR YEARS OF OPERATING THE
UHF STATION IN MILWAUKEE, CBS DISCONTINUED IT, CLAIMING THAT THE VHF
COMPETITION WAS TOO POWERFUL.    THE COURT'S OPINION TAKES OUT OF
CONTEXT CERTAIN STATEMENTS IN A CBS REPORT AND INFERS FROM THEM THAT
CBS WAS INTENDING TO MAKE ONLY A SHORT-TERM VENTURE OUT OF ITS UHF
PURCHASE.  BUT A FULL READING OF THE REPORT IN QUESTION, WHICH WAS
APPENDED TO PETITIONER'S AFFIDAVIT IN OPPOSITION TO THE MOTION FOR
SUMMARY JUDGMENT, REVEALS THAT CBS REJECTED THE SUGGESTION THAT IT
PURCHASE A UHF STATION IN A MARKET THAT WAS PRIMARILY VHF, FOR THE VERY
REASON THAT IT WOULD HAVE ONLY SHORT-TERM ADVANTAGES.  MOREOVER, THE
COURT'S CONSTRUCTION OF THE PASSAGE ON WHICH IT RELIES HARDLY REFLECTS
ITS REAL MEANING.  THE CENTRAL QUESTION ON WHICH THE REPORT FOCUSED WAS
"THE DEGREE OF SHORT-TERM COST AND INCONVENIENCE THAT IS TO BE
UNDERGONE IN ORDER TO OBTAIN THE EVENTUAL GAIN" IN THE PURCHASE OF A
UHF STATION.  IN THIS CONTEXT, THE REPORT NOTED THAT CBS TELEVISION
PROGRAMS, BROADCAST BY A CBS AFFILIATE IN THE AREA (I.E., WCAN), HAD
ALREADY BUILT UP A UHF VIEWING MARKET, SO THAT THE LOSSES THAT MIGHT BE
EXPECTED AT THE OUTSET OF ANY SUCH VENTURE WOULD BE MINIMIZED.  THE
INFERENCE IS THAT IT WOULD BE WISE FOR CBS TO CAPITALIZE ON THIS
HEADSTART BEFORE IT WAS CUT INTO BY MORE VHF STATIONS, NOT THAT CBS
SHOULD PURCHASE THE STATION AND ABANDON IT AS SOON AS OTHER VHF
STATIONS ENTERED THE MARKET. 

FN8  THE RECORD SHOWS THAT POLLER FROM THE BEGINNING HAD
UNSUCCESSFULLY TRIED TO PERSUADE CBS TO ENLARGE THE TERM OF HIS
AFFILIATION CONTRACT CANCELLATION CLAUSE FROM SIX MONTHS TO TWO YEARS,
AND THAT, WITH EYES THUS OPEN, HE NONETHELESS PROCEEDED WITH HIS
SUBSTANTIAL EQUIPMENT INVESTMENT. 

FN9  ONE OF THE INTRODUCTORY CLAUSES OF THE CONTRACT PROVIDED: 

"WHEREAS, MIDWEST (PETITIONER) HAS REPRESENTED TO CBS THAT MIDWEST
INTENDS TO CONTINUE THE OPERATION OF WCAN AND ALL BUSINESS INCIDENTAL
THERETO, AND FOR THAT PURPOSE CBS PROPOSES TO MAKE THE SALE AND
TRANSFERS HEREINAFTER SET FORTH; ...  ." 

I FIND NO PERSUASIVE BASIS IN THE RECORD FOR PETITIONER'S ASSERTION
THAT THIS WAS DESIGNED AS A SELF-SERVING DECLARATION TO CLOAK CBS'
ALLEGED ANTITRUST MALEFACTIONS.  BY THAT SAME CONTRACT CBS SOLD TO
POLLER THE WOKY EQUIPMENT, IN PART CONSIDERATION FOR THE PURCHASE OF
HIS EQUIPMENT, THE THOUGHT QUITE EVIDENTLY BEING THAT SUCH EQUIPMENT
WOULD SUFFICE FOR HIS CONTINUED OPERATIONS, WHILE THE SUPERIOR WCAN
EQUIPMENT WOULD RELIEVE CBS FROM THE NECESSITY OF COMPLETELY RE
EQUIPPING WOKY. 
..END :






MACHIBRODA V. UNITED STATES 368 U.S. 487 


NO. 69.  ARGUED DECEMBER 5, 1961 - DECIDED FEBRUARY 19, 1962 - 280 F.2D
379, JUDGMENT VACATED AND CAUSE REMANDED. 


IN A FEDERAL DISTRICT COURT, PETITIONER PLEADED GUILTY TO TWO CHARGES
OF BANK ROBBERY.  BEFORE SENTENCING, THE JUDGE INQUIRED WHETHER COUNSEL
DESIRED TO MAKE ANY STATEMENT; BUT HE DID NOT DIRECT ANY SIMILAR
INQUIRY TO PETITIONER PERSONALLY.  HE SENTENCED PETITIONER TO
IMPRISONMENT FOR 25 YEARS ON ONE CHARGE AND 15 YEARS ON THE OTHER, THE
SENTENCES TO RUN CONSECUTIVELY.  SEVERAL YEARS LATER, PETITIONER FILED
IN THE SAME COURT A MOTION UNDER 28 U.S.C. SEC. 2255 TO VACATE AND SET
ASIDE THE SENTENCE ON THE GROUNDS THAT THE JUDGE HAD NOT ASKED
PETITIONER WHETHER HE WISHED TO SPEAK IN HIS OWN BEHALF BEFORE SENTENCE
WAS IMPOSED, AS REQUIRED BY FEDERAL RULE OF CRIMINAL PROCEDURE 32(A),
THAT HE HAD ACCEPTED THE GUILTY PLEAS WITHOUT FIRST DETERMINING THAT
THEY HAD BEEN MADE VOLUNTARILY, AS REQUIRED BY RULE 11, AND THAT THE
PLEAS OF GUILTY HAD NOT BEEN VOLUNTARY BUT HAD BEEN INDUCED BY PROMISES
AND THREATS MADE BY THE PROSECUTING ATTORNEY.  IN SUPPORT OF THE LAST
GROUND, PETITIONER FILED AN AFFIDAVIT SETTING OUT DETAILED AND SPECIFIC
ALLEGATIONS.  THE PROSECUTING ATTORNEY FILED AN AFFIDAVIT DENYING ANY
PROMISES OR COERCION.  WITHOUT A HEARING, THE DISTRICT JUDGE DETERMINED
THAT PETITIONER'S ALLEGATIONS CONCERNING AN AGREEMENT WERE FALSE AND
DENIED THE MOTION.  HELD: 

1.  FAILURE OF THE JUDGE SPECIFICALLY TO INQUIRE AT THE TIME OF
SENTENCING WHETHER PETITIONER PERSONALLY WISHED TO MAKE A STATEMENT IN
HIS OWN BEHALF IS NOT OF ITSELF AN ERROR THAT CAN BE RAISED BY MOTION
UNDER 28 U.S.C. SEC. 2255 OR RULE 35.  P. 489. 

2.  THE DISTRICT COURT DID NOT PROCEED IN CONFORMITY WITH 28 U.S.C.
SEC. 2255 WHEN IT MADE FINDINGS ON CONTROVERTED ISSUES OF FACT WITHOUT
NOTICE TO PETITIONER AND WITHOUT A HEARING, SINCE THIS WAS NOT A CASE
WHERE "THE MOTION AND THE FILES AND RECORDS OF THE CASE CONCLUSIVELY
SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF."  PP. 489-496. 

MACHIBRODA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1956 TWO INFORMATIONS WERE FILED IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF OHIO CHARGING THE PETITIONER WITH
HAVING ROBBED BANKS IN WATERVILLE, OHIO, AND FOREST, OHIO.  REPRESENTED
BY COUNSEL OF HIS OWN CHOICE, THE PETITIONER WAIVED INDICTMENT AND
PLEADED GUILTY TO BOTH CHARGES.  SENTENCE WAS DEFERRED PENDING A
PRESENTENCE INVESTIGATION, AND IN THE INTERIM PETITIONER APPEARED AS A
DEFENSE WITNESS AT THE JURY TRIAL OF MARVIN BREATON, CHARGED WITH
PARTICIPATION IN THE WATERVILLE BANK ROBBERY.  AT THAT TRIAL THE
PETITIONER TESTIFIED THAT HE HAD ROBBED THE WATERVILLE BANK, BUT DENIED
THAT BREATON HAD BEEN WITH HIM.  BREATON WAS CONVICTED BY THE JURY. 
THREE WEEKS LATER THE PETITIONER APPEARED WITH COUNSEL BEFORE THE
DISTRICT JUDGE FOR SENTENCING.  DURING THE COURSE OF THE PROCEEDINGS
THE JUDGE INQUIRED IF COUNSEL HAD ANY STATEMENT TO MAKE, BUT DID NOT
DIRECT ANY SIMILAR INQUIRY TO THE PETITIONER PERSONALLY.  THE COURT
IMPOSED SENTENCE OF TWENTY-FIVE YEARS IMPRISONMENT ON THE FIRST
INFORMATION AND FIFTEEN YEARS ON THE SECOND, THE SENTENCES TO RUN
CONSECUTIVELY. 

IN 1959 THE PETITIONER INSTITUTED THE PRESENT LITIGATION BY FILING IN
THE SENTENCING COURT A MOTION UNDER 28 U.S.C. SEC. 2255, TO VACATE AND
SET ASIDE THE SENTENCE HE WAS SERVING.  THE MOTION ALLEGED THREE
GROUNDS UPON WHICH IT WAS CLAIMED RELIEF SHOULD BE GRANTED:  THAT THE
PETITIONER'S PLEAS OF GUILTY HAD NOT BEEN VOLUNTARY, BUT HAD BEEN
INDUCED BY PROMISES MADE BY THE ASSISTANT UNITED STATES ATTORNEY IN
CHARGE OF THE PROSECUTION; THAT IN VIOLATION OF RULE 11 OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE THE COURT HAD ACCEPTED THE GUILTY PLEAS
WITHOUT FIRST DETERMINING THAT THEY HAD BEEN MADE VOLUNTARILY; AND THAT
IN VIOLATION OF RULE 32(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
THE COURT HAD NOT INQUIRED IF THE DEFENDANT WISHED TO SPEAK IN HIS OWN
BEHALF BEFORE SENTENCE WAS IMPOSED.  THE MOTION WAS DENIED BY THE
DISTRICT COURT WITHOUT A HEARING, 184 F. SUPP. 881.  THE COURT OF
APPEALS AFFIRMED, PER CURIAM, 280 F.2D 379.  WE GRANTED CERTIORARI TO
CONSIDER SEEMINGLY SIGNIFICANT QUESTIONS AS TO THE SCOPE OF RELIEF
UNDER 28 U.S.C. SEC. 2255.  365 U.S. 842. 

                                        I. 

FOR THE REASONS STATED IN HILL V. UNITED STATES, ANTE, P. 424, WE
HOLD THAT THE FAILURE OF THE DISTRICT COURT SPECIFICALLY TO INQUIRE AT
THE TIME OF SENTENCING WHETHER THE PETITIONER PERSONALLY WISHED TO MAKE
A STATEMENT IN HIS OWN BEHALF IS NOT OF ITSELF AN ERROR THAT CAN BE
RAISED BY MOTION UNDER 28 U.S.C. SEC. 2255 OR RULE 35 OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE. 

                                        II. 

IN SUPPORT OF HIS CLAIM THAT HIS PLEAS OF GUILTY HAD BEEN
INVOLUNTARILY MADE, THE PETITIONER'S MOTION AND SUPPORTING AFFIDAVIT
SET OUT DETAILED FACTUAL ALLEGATIONS.  SPECIFICALLY, THE MOTION AND
AFFIDAVIT ALLEGED THAT ON THREE SEPARATE OCCASIONS, IDENTIFIED AS TO
TIME AND PLACE, AN ASSISTANT UNITED STATES ATTORNEY HAD PROMISED THE
PETITIONER THAT HE WOULD RECEIVE A TOTAL PRISON SENTENCE OF NOT MORE
THAN TWENTY YEARS IF HE PLEADED GUILTY TO BOTH INFORMATIONS.  THESE
PROMISES WERE SAID TO HAVE BEEN MADE UPON THE AUTHORITY OF THE UNITED
STATES ATTORNEY AND TO BE AGREEABLE TO THE DISTRICT JUDGE.  IT WAS
ALLEGED THAT THE PETITIONER HAD BEEN CAUTIONED NOT TO TELL HIS OWN
LAWYER ABOUT THE CONVERSATIONS.  IT WAS FURTHER ALLEGED THAT WHEN THE
PETITIONER THREATENED TO ADVISE HIS LAWYER AND THE COURT OF WHAT HAD
TRANSPIRED, THE ASSISTANT UNITED STATES ATTORNEY HAD TOLD HIM THAT IF
HE "INSISTED IN MAKING A SCENE," CERTAIN UNSETTLED MATTERS CONCERNING
TWO OTHER ROBBERIES WOULD BE ADDED TO THE PETITIONER'S DIFFICULTIES. 
FINALLY, THE MOTION AND AFFIDAVIT ALLEGED THAT THE PETITIONER HAD
WRITTEN TWO LETTERS TO THE SENTENCING COURT AND TWO LETTERS TO THE
ATTORNEY GENERAL OF THE UNITED STATES "RELATIVE TO THE
MISREPRESENTATIONS" BY THE ASSISTANT UNITED STATES ATTORNEY, TO WHICH
HE HAD RECEIVED NO REPLY.  (FN1) 

THE GOVERNMENT FILED A MEMORANDUM IN OPPOSITION TO THE PETITIONER'S
MOTION, ATTACHING AN AFFIDAVIT OF THE ASSISTANT UNITED STATES
ATTORNEY.  THE AFFIDAVIT EMPHATICALLY DENIED ANY PROMISE OR COERCION
WITH RESPECT TO THE PETITIONER'S PLEAS OF GUILTY, BUT DID NOT ADMIT
THAT THE ASSISTANT UNITED STATES ATTORNEY HAD HAD A CONVERSATION WITH
THE PETITIONER IN THE COUNTY JAIL THE DAY BEFORE BREATONS'S TRIAL, AT
WHICH TIME THE PETITIONER WAS TOLD HE WAS ABOUT TO BE GIVEN HIS LAST
OPPORTUNITY TO TELL THE TRUTH AND THAT THE COURT, IN SENTENCING, MIGHT
WELL TAKE INTO CONSIDERATION THE PETITIONER'S REFUSAL TO TALK. 

WITHOUT A HEARING THE DISTRICT JUDGE DETERMINED THAT THE PETITIONER'S
ALLEGATIONS AS TO AN AGREEMENT WITH THE ASSISTANT UNITED STATES
ATTORNEY WERE FALSE.  THE COURT NOTED THAT IT HAD NEVER RECEIVED EITHER
OF THE TWO LETTERS REFERRED TO HIM BY THE PETITIONER, BUT HAD RECEIVED
A LETTER PURPORTEDLY FROM HIM SIX MONTHS AFTER SENTENCING, WHICH DID
NOT MENTION ANY AGREEMENT, BUT SIMPLY REQUESTED THAT THE SENTENCES BE
MADE CONCURRENT, RATHER THAN CONSECUTIVE.  THE COURT FURTHER NOTED THAT
THE PETITIONER HAD NOT COMPLAINED WHEN NO REQUEST FOR A REDUCTION OF
SENTENCE WAS MADE BY THE UNITED STATES ATTORNEY WITHIN SIXTY DAYS AFTER
SENTENCING, AND THAT INSTEAD, THE PETITIONER HAD WAITED ALMOST TWO AND
A HALF YEARS TO FILE THE PRESENT MOTION. 

THERE CAN BE NO DOUBT THAT, IF THE ALLEGATIONS CONTAINED IN THE
PETITIONER'S MOTION AND AFFIDAVIT ARE TRUE, HE IS ENTITLED TO HAVE HIS
SENTENCE VACATED.  A GUILTY PLEA, IF INDUCED BY PROMISES OR THREATS
WHICH DEPRIVE IT OF THE CHARACTER OF A VOLUNTARY ACT, IS VOID.  A
CONVICTION BASED UPON SUCH A PLEA IS OPEN TO COLLATERAL ATTACK.  SEE
WALKER V. JOHNSTON, 312 U.S. 275; WALEY V. JOHNSTON, 316 U.S. 101;
SHELTON V. UNITED STATES, 356 U.S. 26, REVERSING, 246 F.2D 571.  (FN2)
"A PLEA OF GUILTY DIFFERS IN PURPOSE AND EFFECT FROM A MERE ADMISSION
OR AN EXTRA-JUDICIAL CONFESSION; IT IS ITSELF A CONVICTION.  LIKE A
VERDICT OF A JURY IT IS CONCLUSIVE.  MORE IS NOT REQUIRED; THE COURT
HAS NOTHING TO DO BUT GIVE JUDGMENT AND SENTENCE.  OUT OF JUST
CONSIDERATION FOR PERSONS ACCUSED OF CRIME, COURTS ARE CAREFUL THAT A
PLEA OF GUILTY SHALL NOT BE ACCEPTED UNLESS MADE VOLUNTARILY AFTER
PROPER ADVICE AND WITH FULL UNDERSTANDING OF THE CONSEQUENCES." 
KERCHEVAL V. UNITED STATES, 274 U.S. 220, 223. 

THE DISTRICT COURT RECOGNIZED THAT THE "CHARGES OF AN AGREEMENT
BETWEEN A FORMER ASSISTANT UNITED STATES ATTORNEY AND THE DEFENDANT ARE
SERIOUS," AND STATED THAT IF "THIS COURT HAD ANY DOUBT AS TO THEIR
FALSITY IT WOULD REQUIRE A HEARING."  THE COURT DETERMINED, HOWEVER,
THAT THE COMBINATION OF FACTUAL INFERENCES ALREADY MENTIONED
"CONCLUSIVELY INDICATES THE FALSITY OF THE DEFENDANT'S ALLEGATIONS." 
184 F. SUPP., AT 883. 

WE THINK THE DISTRICT COURT DID NOT PROCEED IN CONFORMITY WITH THE
PROVISIONS OF 28 U.S.C.  SEC. 2255, WHEN IT MADE FINDINGS ON
CONTROVERTED ISSUES OF FACT WITHOUT NOTICE TO THE PETITIONER AND
WITHOUT A HEARING.  UNITED STATES V. HAYMAN, 342 U.S. 205, 220.  THE
STATUTE REQUIRES A DISTRICT COURT TO "GRANT A PROMPT HEARING" WHEN SUCH
A MOTION IS FILED, AND TO "DETERMINE THE ISSUES AND MAKE FINDINGS OF
FACT AND CONCLUSIONS OF LAW WITH RESPECT THERETO" UNLESS "THE MOTION
AND THE FILES AND RECORDS OF THE CASE CONCLUSIVELY SHOW THAT THE
PRISONER IS ENTITLED TO NO RELIEF."  (FN3)  THIS WAS NOT A CASE WHERE
THE ISSUES RAISED BY THE MOTION WERE CONCLUSIVELY DETERMINED EITHER BY
THE MOTION ITSELF OR BY THE "FILES AND RECORDS" IN THE TRIAL COURT. 
THE FACTUAL ALLEGATIONS CONTAINED IN THE PETITIONER'S MOTION AND
AFFIDAVIT, AND PUT IN ISSUE BY THE AFFIDAVIT FILED WITH THE
GOVERNMENT'S RESPONSE, RELATED PRIMARILY TO PURPORTED OCCURRENCES
OUTSIDE THE COURTROOM AND UPON WHICH THE RECORD COULD, THEREFORE, CAST
NO REAL LIGHT.  NOR WERE THE CIRCUMSTANCES ALLEGED OF A KIND THAT THE
DISTRICT JUDGE COULD COMPLETELY RESOLVE BY DRAWING UPON HIS OWN
PERSONAL KNOWLEDGE OR RECOLLECTION. 

WE CANNOT AGREE WITH THE GOVERNMENT THAT A HEARING IN THIS CASE WOULD
BE FUTILE BECAUSE OF THE APPARENT LACK OF ANY EYEWITNESSES TO THE
OCCURRENCES ALLEGED, OTHER THAN THE PETITIONER HIMSELF AND THE
ASSISTANT UNITED STATES ATTORNEY.  THE PETITIONER'S MOTION AND
AFFIDAVIT CONTAIN CHARGES WHICH ARE DETAILED AND SPECIFIC.  IT IS NOT
UNREASONABLE TO SUPPOSE THAT MANY OF THE MATERIAL ALLEGATIONS CAN
EITHER BE CORROBORATED OR DISPROVED BY THE VISITORS' RECORDS OF THE
COUNTY JAIL WHERE THE PETITIONER WAS CONFINED, THE MAIL RECORDS OF THE
PENITENTIARY TO WHICH HE WAS SENT, AND OTHER SUCH SOURCES.  "NOT BY THE
PLEADINGS AND THE AFFIDAVITS, BUT BY THE WHOLE OF THE TESTIMONY, MUST
IT BE DETERMINED WHETHER THE PETITIONER HAS CARRIED HIS BURDEN OF PROOF
AND SHOWN HIS RIGHT TO A DISCHARGE.  THE GOVERNMENT'S CONTENTION THAT
HIS ALLEGATIONS ARE IMPROBABLE AND UNBELIEVABLE CANNOT SERVE TO DENY
HIM AN OPPORTUNITY TO SUPPORT THEM BY EVIDENCE.  ON THIS RECORD IT IS
HIS RIGHT TO BE HEARD."  WALKER V. JOHNSTON, 312 U.S. 275, AT 287. 

WHAT HAS BEEN SAID IS NOT TO IMPLY THAT A MOVANT MUST ALWAYS BE
ALLOWED TO APPEAR IN A DISTRICT COURT FOR A FULL HEARING IF THE RECORD
DOES NOT CONCLUSIVELY AND EXPRESSLY BELIE HIS CLAIM, NO MATTER HOW
VAGUE, CONCLUSORY, OR PALPABLY INCREDIBLE HIS ALLEGATIONS MAY BE.  THE
LANGUAGE OF THE STATUTE DOES NOT STRIP THE DISTRICT COURTS OF ALL
DISCRETION TO EXERCISE THEIR COMMON SENSE.  INDEED, THE STATUTE ITSELF
RECOGNIZES THAT THERE ARE TIMES WHEN ALLEGATIONS OF FACTS OUTSIDE THE
RECORD CAN BE FULLY INVESTIGATED WITHOUT REQUIRING THE PERSONAL
PRESENCE OF THE PRISONER.  (FN4) WHETHER THE PETITION IN THE PRESENT
CASE CAN APPROPRIATELY BE DISPOSED OF WITHOUT THE PRESENCE OF THE
PETITIONER AT THE HEARING IS A QUESTION TO BE RESOLVED IN THE FURTHER
PROCEEDINGS IN THE DISTRICT COURT. 

THERE WILL ALWAYS BE MARGINAL CASES, AND THIS CASE IS NOT FAR FROM
THE LINE.  BUT THE SPECIFIC AND DETAILED FACTUAL ASSERTIONS OF THE
PETITIONER, WHILE IMPROBABLE, CANNOT AT THIS JUNCTURE BE SAID TO BE
INCREDIBLE.  IF THE ALLEGATIONS ARE TRUE, THE PETITIONER IS CLEARLY
ENTITLED TO RELIEF.  ACCORDINGLY, WE THINK THE FUNCTION OF 28 U.S.C.
SEC. 2255 CAN BE SERVED IN THIS CASE ONLY BY AFFORDING THE HEARING
WHICH ITS PROVISIONS REQUIRE.  VACATED AND REMANDED. 

FN1  THE AFFIDAVIT FILED WITH THE PETITIONER'S MOTION WAS AS
FOLLOWS: 

"JOHN MACHIBRODA, HAVING BEEN DULY SWORN ACCORDING TO LAW DEPOSES AND
SAYS THAT HE IS THE PETITIONER IN AN ACTION FILED IN THIS COURT
ENTITLED 'MOTION TO VACATE SENTENCE' AND THIS AFFIDAVIT IS MADE IN
SUPPORT THEREOF: 

"1.  THAT AFFIANT WAS INTERVIEWED IN THE COUNTY JAIL ON OR ABOUT
FEBRUARY 21, 1956, BY ONE CLARENCE M. CONDON WHO REPRESENTED HIMSELF TO
BE AS ASSISTANT UNITED STATES ATTORNEY IN CHARGE OF THE PROSECUTION OF
ALLEGED BANK ROBBERIES COMMITTED AT THE WATERVILLE AND FOREST BANKS. 
(LATER DESIGNATED AS CASES 10345 AND 10348).  THE COUNTY JAIL WHERE THE
INTERVIEW TOOK PLACE IS SITUATED IN TOLEDO, OHIO. 

"2.  THAT THE SAID CLARENCE M. CONDON REPRESENTED TO THE AFFIANT THAT
HE HAD THE AUTHORITY TO SPEAK FOR THE UNITED STATES ATTORNEY AND THE
UNITED STATES DISTRICT JUDGE IN THE MATTER OF THE AMOUNT OF SENTENCE
THAT WOULD BE IMPOSED IN CASES NOS. 10345 AND 10348. 

"3.  THAT THE SAID CLARENCE M. CONDON REPRESENTED TO THE AFFIANT THAT
IF THE AFFIANT WOULD WAIVE INDICTMENT IN CASE NO. 10348 AND PLEAD
GUILTY IN CASES NOS. 10345 AND 10348 THE COURT WOULD NOT IMPOSE A
SENTENCE IN THE EXCESS OF TWENTY (20) YEARS IN CASE NO. 10345 AND THAT
ANY SENTENCE IMPOSED IN CASE NO. 10348 WOULD NOT BE IN THE EXCESS OF
TEN (10) YEARS AND WOULD BE ORDERED SERVED CONCURRENTLY WITH THE TERM
IMPOSED IN CASE NO. 10345. 

"4.  THAT ON THE ASSURANCE OF THE SAID CLARENCE M. CONDON THAT THE
SENTENCES WOULD BE IMPOSED AS HERETOFORE SET OUT IN PARAGRAPH 3, ABOVE,
THE AFFIANT AGREED TO WAIVE INDICTMENT IN CASE NO. 10348 AND PLEAD
GUILTY TO BOTH CASES.*  (THIS INTERVIEW WAS HELD ON OR ABOUT FEBRUARY
21, 1956.) 

"*AT THAT TIME THE AFFIANT HAD ALREADY WAIVED INDICTMENT IN CASE NO.
10345. 

"5.  THAT THE SAID CLARENCE M. CONDON INSTRUCTED THE AFFIANT TO
ADVISE HIS ATTORNEY, JOHN SCHUCHMANN, THAT HE WOULD WAIVE INDICTMENT IN
CASE NO. 10348 AND PLEAD GUILTY TO BOTH CASES. 

"6.  THAT THE SAID CLARENCE M. CONDON CAUTIONED THE AFFIANT TO
REFRAIN FROM ADVISING THE SAID JOHN SCHUCHMANN OF HIS INTERVIEWS WITH
MR. CONDON AND THAT AN AGREEMENT HAD BEEN REACHED BETWEEN THE
GOVERNMENT AS PRESENTED BY MR. CONDON, AND THE AFFIANT IN THE MATTER OF
WAIVER, PLEAS AND SENTENCES. 

"7.  THAT ON FEBRUARY 24, 1956, AFFIANT ACTING ON THE PROMISES AND
REPRESENTATIONS OF THE SAID CLARENCE M. CONDON WAIVED INDICTMENT IN
CASE NO. 10348. 

"8.  THAT ON FEBRUARY 24, 1956, THE AFFIANT ACTING ON THE PROMISES
AND REPRESENTATIONS OF THE SAID CLARENCE M. CONDON PLEADED GUILTY IN
CASES NOS. 10345 AND 10348. 

"9.  THAT ON OR ABOUT MAY 22, 1956, THE SAID CLARENCE M. CONDON AGAIN
INTERVIEWED THE AFFIANT AT THE COUNTY JAIL AND INFORMED AFFIANT THAT
BECAUSE OF AFFIANT'S UNFAVORABLE TESTIMONY AT THE TRIAL OF A CO
DEFENDANT THE COURT WAS VEXED AND THERE MIGHT BE SOME DIFFICULTY IN
REGARDS TO THE PROMISED TWENTY (20) YEAR SENTENCE.    "10.  THAT THE
SAID CLARENCE M. CONDON ADMONISHED THE AFFIANT THAT HE HAD TRIED TO
WARN HIM DURING THE TRIAL OF THE CO-DEFENDANT THAT AFFIANT WOULD
SHORTLY APPEAR BEFORE THIS COURT FOR SENTENCE.* 

"*THE EXACT WORDS MR. CONDON USED TO WARN THE AFFIANT ARE TO BE FOUND
IN THE TRANSCRIPT OF THE TRIAL OF MARVIN FERRIS BREATON. 

"11.  THAT AT NO TIME DID THE AFFIANT EVER REPRESENT TO MR. CONDON OR
ANYONE ELSE THAT HE WOULD TESTIFY ONE WAY OR THE OTHER AT THE TRIAL OF
THE CO-DEFENDANT.  THE PROMISE OF THE MAXIMUM SENTENCE OF TWENTY (20)
YEARS WAS PREDICATED SOLELY ON THE AFFIANT'S AGREEMENT TO WAIVE
INDICTMENT AND PLEAD GUILTY TO BOTH INFORMATIONS. 

"12.  THAT THE AFFIANT IMMEDIATELY BECAME AGITATED AND HOTLY INFORMED
MR. CONDON THAT HE WAS GOING TO TELL HIS ATTORNEY THE WHOLE STORY AND
DEMAND THAT THE COURT BE INFORMED OF THE AGREEMENT. 

"13.  THAT THE SAID CLARENCE M. CONDON ASSURED THE AFFIANT THAT IN
THE EVENT A SENTENCE IN THE EXCESS OF TWENTY (20) YEARS WAS IMPOSED THE
UNITED STATES ATTORNEY, HIMSELF, WOULD MOVE WITHIN SIXTY (60) DAYS FOR
A REDUCTION OF THE PORTION OF THE SENTENCE IN EXCESS OF TWENTY (20)
YEARS; THAT THE AFFIANT HAD NOTHING TO WORRY ABOUT IF HE KEPT HIS MOUTH
SHUT; THAT ON THE OTHER HAND, IF AFFIANT INSISTED IN MAKING A SCENE IN
A MATTER OF HIS OWN MAKING, THERE WERE THE UNSETTLED MATTERS OF THE
ROBBERIES OF THE TROTWOOD AND CANAL FULTON BANKS WHICH WOULD BE ADDED
TO THE AFFIANT'S PRESENT DIFFICULTIES. 

"14.  THAT ON MAY 23, 1956, THE AFFIANT WAS SENTENCED BY THE
HONORABLE FRANK L. KLOEB TO TWENTY-FIVE (25) YEARS IN CASE NO. 10345
AND FIFTEEN (15) YEARS IN CASE NO. 10348. 

"15.  THAT IMMEDIATELY AFTER SENTENCE IN AN INTERVIEW WITH THE SAID
CLARENCE M. CONDON, THE AFFIANT WAS INFORMED HE HAD NO REASON TO WORRY
FOR AS SOON AS THE JUDGE 'COOLED OFF' THE UNITED STATES ATTORNEY WOULD
HAVE THE SENTENCE REDUCED TO TWENTY (20) YEARS AS HAD BEEN PROMISED. 

"16.  THAT WITHIN A FEW HOURS AFTER SENTENCE, THE AFFIANT WAS ON HIS
WAY TO THE FEDERAL PENITENTIARY, LEAVENWORTH, KANSAS. 

"17.  THAT THE SENTENCE WAS NOT REDUCED IN SIXTY (60) DAYS AND HAS
NOT BEEN REDUCED TO DATE. 

"18.  THAT THE PETITIONER WROTE TWO (2) LETTERS TO THE HONORABLE
FRANK L. KLOEB AND TWO (2) LETTERS TO THE ATTORNEY GENERAL OF THE
UNITED STATES RELATIVE TO THE MISREPRESENTATIONS BY THE SAID CLARENCE
M. CONDON.  THESE LETTERS WERE POSTED IN THE OFFICIAL PRISONER'S MAIL
BOX AND THE AFFIANT HAS FAILED TO RECEIVE A REPLY TO ANY OF THEM. 

"19.  THAT THE AFFIANT'S PREVIOUS EXPERIENCE WITH COURT OFFICIALS HAS
BEEN WITH THE AUTHORITIES REPRESENTING THE CANADIAN GOVERNMENT AND HE
FOUND THEM TO HONOR THEIR COMMITMENTS.  HE HAD NO REASON TO BELIEVE
THAT THE OFFICIALS OF THE UNITED STATES COURTS WOULD DO OTHERWISE.  HIS
NAIVETE HAS COST HIM AN EXTRA TWENTY (20) YEARS IN PRISON." 

FN2  SEE ALSO DANIEL V. UNITED STATES, 107 U.S. APP. D.C. 110, 274
F.2D 768; TELLER V. UNITED STATES, 263 F.2D 871: WATSON V. UNITED
STATES, 104 U.S. APP. D.C. 321, 262 F.2D 33; EUZIERE V. UNITED STATES,
249 F.2D 293; MOTLEY V. UNITED STATES, 230 F.2D 110; UNITED STATES V.
PAGLIA, 190 F.2D 445. 

FN3  SECTION 2255 OF TITLE 28, U.S.C.  PROVIDES IN PART: 

"UNLESS THE MOTION AND THE FILES AND RECORDS OF THE CASE CONCLUSIVELY
SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF, THE COURT SHALL CAUSE
NOTICE THEREOF TO BE SERVED UPON THE UNITED STATES ATTORNEY, GRANT A
PROMPT HEARING THEREON, DETERMINE THE ISSUES AND MAKE FINDINGS OF FACT
AND CONCLUSIONS OF LAW WITH RESPECT THERETO.  IF THE COURT FINDS THAT
THE JUDGMENT WAS RENDERED WITHOUT JURISDICTION, OR THAT THE SENTENCE
IMPOSED WAS NOT AUTHORIZED BY LAW OR OTHERWISE OPEN TO COLLATERAL
ATTACK, OR THAT THERE HAS BEEN SUCH A DENIAL OR INFRINGEMENT OF THE
CONSTITUTIONAL RIGHTS OF THE PRISONER AS TO RENDER THE JUDGMENT
VULNERABLE TO COLLATERAL ATTACK, THE COURT SHALL VACATE AND SET THE
JUDGMENT ASIDE AND SHALL DISCHARGE THE PRISONER OR RESENTENCE HIM OR
GRANT A NEW TRIAL OR CORRECT THE SENTENCE AS MAY APPEAR APPROPRIATE." 

FN4  SECTION 2255 OF TITLE 28, U.S.C.  ALSO PROVIDES, IN PART:  "A
COURT MAY ENTERTAIN AND DETERMINE SUCH MOTION WITHOUT REQUIRING THE
PRODUCTION OF THE PRISONER AT THE HEARING." 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR.
JUSTICE BRENNAN CONCUR IN THE COURT'S JUDGMENT AND OPINION EXCEPT AS TO
PART I, FROM WHICH THEY DISSENT FOR THE REASONS SET OUT IN THEIR
DISSENT IN HILL V. UNITED STATES, ANTE, P. 430. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

THE COURT AWARDS PETITIONER, A BANK ROBBER SERVING SENTENCES IN
ALCATRAZ, A HEARING ON A SEC. 2255 PETITION WHICH IT ADMITS IS "NOT FAR
FROM THE LINE" MARKING THOSE APPLICATIONS THE TRIAL JUDGE MAY
ORDINARILY DENY.  IF THIS BE TRUE, THE DOUBT SHOULD BE RESOLVED IN
SUPPORT OF THE DECISION BELOW, NOT IN THE DESTRUCTION OF IT.  THE
EXPERIENCED TRIAL JUDGE, WHO HAD BEEN WITH THIS CASE FROM THE VERY
BEGINNING, FOUND THE FILES AND RECORDS CONCLUSIVELY SHOW TO BE FALSE
PETITIONER'S CONTENTION THAT HIS PLEAS OF GUILTY WERE INDUCED BY
PROMISES OF LENIENCY.  ACCORDINGLY, PETITIONER'S APPLICATION UNDER SEC.
2255 WAS DISMISSED WITHOUT A HEARING IN EXACT COMPLIANCE WITH THAT
REJECTS THE INFERENCES DRAWN FROM THE FILES AND RECORDS BY THE COURTS
BELOW AND SUBSTITUTES ITS OWN FINDING THAT THESE MATERIALS DO NOT
CONCLUSIVELY BELIE PETITIONER'S STORY AND THAT IT IS NECESSARY TO GO
OUTSIDE THE FILES AND RECORDS TO DISCOVER THE TRUTH OF THE MATTER. 
WITH THIS CONCLUSION I CANNOT AGREE.  (FN1)  IT REPRESENTS NOT ONLY A
FAILURE TO GIVE DUE DEFERENCE TO THE INFERENCES DRAWN BY THE TWO LOWER
COURTS BUT AN UNWARRANTED RESTRICTION OF THE SUMMARY DISPOSITION
PROVISION OF SEC. 2255.  THE OPINION IS AN INVITATION TO PRISONERS,
ALWAYS SEEKING A SOJOURN FROM THEIR KEEPERS, TO SWEAR TO "MUNCHAUSEN"
TALES WHEN SELF-INTEREST READILY LEADS TO SELF-DECEPTION IN SEC. 2255
APPLICATIONS.  ONCE THE OPINION GOES THE ROUNDS OF OUR PRISONS, WE WILL
LIKELY BE PLAGUED WITH A RASH OF SUCH SPURIOUS APPLICATIONS.  (FN2) 

THE RECORD SHOWS THAT PETITIONER, WHO HAD PREVIOUSLY BEEN CONVICTED
OF ARMED ROBBERY, PARTICIPATED IN FOUR BANK ROBBERIES IN OHIO, WHICH AT
THE POINT OF A SAWED-OFF SHOTGUN NETTED OVER $169,000.  AFTER THE LAST
OF THESE ROBBERIES, THE WATERVILLE STATE SAVINGS BANK, HE ESCAPED TO
CANADA.  HE WAS ARRESTED THERE AND UPON WAIVER OF EXTRADITION WAS
RETURNED TO OHIO.  AN INFORMATION WAS FILED CHARGING PETITIONER AND ONE
BREATON WITH THE ROBBERY OF THE WATERVILLE BANK.  BOTH SIGNED IN OPEN
COURT WAIVERS OF INDICTMENT ON THE CHARGES.  A WEEK LATER ANOTHER
INFORMATION WAS FILED AGAINST THE PETITIONER ALONE CHARGING HIM WITH
THE ROBBERY OF THE FIRST NATIONAL BANK OF FOREST.  PETITIONER, WHO WAS
ACCOMPANIED BY COUNSEL THROUGHOUT, AGAIN FILED A WAIVER OF INDICTMENT,
AND AT THIS TIME HE PLEADED GUILTY TO BOTH INFORMATIONS.  THE TRIAL
JUDGE CALLED FOR A PRESENTENCE REPORT, AND PETITIONER WAS RETURNED TO
JAIL. 

IN THE INTERIM BETWEEN PLEADING AND SENTENCING, PETITIONER PURSUANT
TO A SUBPOENA TESTIFIED ON BEHALF OF THE DEFENSE AT THE TRIAL OF HIS
CODEFENDANT BREATON.  HE ADMITTED THAT HE HAD COMMITTED THE WATERVILLE
ROBBERY BUT DENIED THAT BREATON WAS IN ANYWISE CONNECTED WITH IT.  HE
CLAIMED THAT ANOTHER PERSON, PRESENTLY UNKNOWN TO HIM, WHOM HE HAD
PICKED UP IN A BAR IN CANADA WAS HIS ACCOMPLICE.  HE TESTIFIED THAT
THEY HAD DRIVEN TOGETHER FROM CANADA TO WATERVILLE, BUT HE INSISTED
THAT HE NOT ONLY DID NOT KNOW HIS ACCOMPLICE'S NAME BUT COULD NOT
DESCRIBE HIM.  STATE WITNESSES TESTIFIED THAT PETITIONER HAD STATED IN
THEIR PRESENCE THAT BREATON WAS THE ACCOMPLICE.  THE JURY DISBELIEVED
PETITIONER AND FOUND BREATON GUILTY.  SHORTLY THEREAFTER PETITIONER
APPEARED FOR SENTENCING BEFORE THE SAME JUDGE WHO HAD PRESIDED OVER
BREATON'S TRIAL AND WAS GIVEN A TOTAL OF 40 YEARS, 25 IN THE WATERVILLE
AND 15 IN THE FOREST ROBBERY. 

THREE YEARS LATER PETITIONER FILED THIS APPLICATION BEFORE THE SAME
TRIAL JUDGE CLAIMING THAT AN ASSISTANT UNITED STATES ATTORNEY, WITH
FULL AUTHORITY OF HIS SUPERIOR AND WITH IMPLIED CONSENT OF THE JUDGE,
PROMISED HIM A TOTAL SENTENCE OF 20 YEARS, RATHER THAN THE 40 WHICH HE
HAD RECEIVED, IN RETURN FOR A WAIVER OF INDICTMENT IN THE SECOND CASE
AND A PLEA OF GUILTY IN EACH CASE.  HE ALLEGED THAT THE ASSISTANT HAD
CONTACTED HIM IN THE LOCAL JAIL TWICE BEFORE SENTENCING AND ONCE
IMMEDIATELY AFTERWARDS.  THE LATTER OCCASION WAS TO REASSURE HIM THAT
THE SENTENCE WOULD BE REDUCED TO 20 YEARS WITHIN 60 DAYS.  THE
GOVERNMENT CONTESTED THESE ALLEGATIONS AND FILED A DETAILED AFFIDAVIT
BY THE ASSISTANT SPECIFICALLY DENYING EACH OF THE CHARGES. 

AN EXAMINATION OF THE FILES AND RECORDS IN THIS CASE REVEALS THAT
PETITIONER CLEARLY OUTSPOKE HIMSELF.  IF A DEAL HAD BEEN MADE, IT
BORDERS ON THE INCREDIBLE THAT PETITIONER WOULD SIT QUIETLY IN PRISON
FOR OVER TWO AND ONE-HALF YEARS AFTER THE PROSECUTOR HAD RENEGED ON HIS
PROMISE.  (FN3)  TO MY MIND IT IS PREPOSTEROUS TO THINK THAT THE
PROSECUTOR WOULD MAKE THE TRADE ALLEGED WHEN BEFORE ANY PROMISES WERE
ALLEGEDLY MADE NOT ONLY HAD PETITIONER WAIVED INDICTMENT ON THE
WATERVILLE ROBBERY, WHICH WAS THE MORE SERIOUS OF THE TWO CHARGES, BUT
HIS ATTORNEY IN HIS PRESENCE HAD MENTIONED TO THE JUDGE IN OPEN COURT
THE "POSSIBILITY OF ANOTHER INFORMATION BEING FILED" AND HAD INDICATED
A CLEAR INTENTION TO WAIVE INDICTMENT ON "BOTH INFORMATIONS" AND TO
PLEAD GUILTY TO AT LEAST ONE.  MOREOVER, EXPERIENCED CRIMINALS SUCH AS
PETITIONER KNOW THAT JUDGES, NOT PROSECUTORS, CONTROL SENTENCES. 
PETITIONER SAYS THE ASSISTANT HAD THE "IMPLIED" CONSENT OF THE JUDGE. 
CERTAINLY THIS WOULD HAVE NOT BEEN SUFFICIENT FOR ONE SO EXPERIENCED AS
PETITIONER.  THE PLEDGE HE ALLEGES THE ASSISTANT EXACTED AS TO SILENCE
WITH REFERENCE TO HIS ATTORNEY DID NOT INCLUDE THE JUDGE.  DESPITE THIS
AND EVEN THOUGH HE APPEARED BEFORE THE JUDGE ON THREE OCCASIONS
SUBSEQUENT TO THE ALLEGED "DEAL," HE NEVER MENTIONED THE SAME NOR ASKED
FOR ANY CONFERENCE WITH THE JUDGE IN CAMERA.  FINALLY, IT IS
INCONCEIVABLE THAT CREDENCE COULD BE GIVEN TO A STORY OF AN AGREEMENT
OF LENIENCY TOLD BY A HARDENED CRIMINAL WHO BEFORE THE ALLEGED
AGREEMENT WAS PERFORMED HAD TESTIFIED AGAINST THE GOVERNMENT AND
FAVORABLE TO A CODEFENDANT.  PROSECUTORS MAKE DEALS, IF AT ALL, FOR
TESTIMONY TO SUPPORT THEIR PROSECUTIONS, NOT TO DESTROY THEM. 

IN ADDITION TO BEING UNBELIEVABLE IN LIGHT OF THE FILES AND RECORDS,
PETITIONER'S CLAIM IS INCONSISTENT THEREWITH.  TO EXPLAIN HIS TARDINESS
IN SEEKING FORMAL RELIEF, PETITIONER ALLEGES SEVERAL PREVIOUS INFORMAL
ATTEMPTS BY LETTER TO PROD THE GOVERNMENT INTO FULFILLING ITS
OBLIGATIONS.   YET THE PROTEST LETTERS SUPPOSEDLY SENT TO THE TRIAL
JUDGE WERE NOT RECEIVED BY HIM AND WERE NOT IN THE FILES WHERE UNDER
DEPARTMENTAL ROUTINE THEY WOULD HAVE BEEN DEPOSITED HAD THEY BEEN
RECEIVED.  BUT PETITIONER'S FILE IS NOT BARREN OF LETTERS FOR IT
CONTAINS ONE WRITTEN BY PETITIONER TO THE TRIAL JUDGE SEVERAL MONTHS
AFTER THE ASSISTANT UNITED STATES ATTORNEY HAD FAILED TO PERFORM THE
PURPORTED BARGAIN.  THIS LETTER, HOWEVER, DID NOT EVEN REMOTELY SUGGEST
AN AGREEMENT BUT MERELY SOUGHT A REDUCTION OF SENTENCE BASED UPON
REPENTANCE.  THEN, OF COURSE, THERE IS PETITIONER'S OWN ADMISSION AT
THE TIME HIS GUILTY PLEAS WERE ENTERED THAT SUCH ACTION WAS VOLUNTARILY
TAKEN. 

FOR THE COURT TO SAY THAT AN APPLICATION SO INCONSISTENT AND
INCREDIBLE CANNOT BE DISPATCHED WITHOUT A HEARING LEAVES THE SUMMARY
DISMISSAL EXCEPTION OF SEC. 2255 MEANINGLESS.  (FN4)  AS POINTED OUT BY
THE GOVERNMENT, TO REQUIRE A HEARING IN THIS CASE MEANS "THAT THE
NUMBER OF HEARINGS HELD ON MOTIONS UNDER SECTION 2255 WOULD BE LIMITED
ONLY BY THE IMAGINATION AND INGENUITY OF THE PRISONERS INVOLVED."  AN
INGENIOUS PRISONER CAN DELIBERATELY BAIT HIS APPLICATION WITH CLAIMS
BEYOND INDEPENDENT PROOF OR DISPROOF AND THEN DEMAND THAT HE BE BROUGHT
TO COURT TO TELL THE STORY KNOWN ONLY TO HIM, NO MATTER HOW
INCONSISTENT AND INCREDIBLE IT MAY BE IN LIGHT OF THE FILES AND
RECORDS.  THE COURT "SUPPOSES" THAT IN THE PRESENT CASE "MANY OF THE
MATERIAL ALLEGATIONS CAN EITHER BE CORROBORATED OR DISPROVED BY THE
VISITORS' RECORDS OF THE COUNTY JAIL WHERE THE PETITIONER WAS CONFINED,
THE MAIL RECORDS OF THE PENITENTIARY TO WHICH HE WAS SENT, AND SUCH
OTHER SOURCES."  IF SUCH INDEPENDENT PROOF IS AVAILABLE, WHICH I DOUBT,
(FN5) THEN THESE AVENUES SHOULD BE EXPLORED BEFORE PERMITTING THE
PETITIONER TO MAKE A TRIP INTO TOWN.  (FN6)  WHY NOT ASK FOR A RESPONSE
IN THIS REGARD, AS WE OFTEN DO, BEFORE ORDERING A HEARING WITH THE
ATTENDANT EXPENSE AND HAZARDS.  THE COURT IMPLIES THAT A FULL HEARING
MAY NOT BE REQUIRED IN A GIVEN CASE IF THE ALLEGATIONS ARE SUFFICIENTLY
"VAGUE, CONCLUSORY, OR PALPABLY INCREDIBLE."  ALTHOUGH I WOULD NOT
REQUIRE ANY HEARING UNDER THE CIRCUMSTANCES OF THIS CASE, I SUBMIT THAT
IF UPON REMAND IT DEVELOPS THAT NO LETTERS WERE MAILED AND THAT THE
ASSISTANT UNITED STATES ATTORNEY DID NOT VISIT THE JAIL AS CLAIMED,
THEN EVEN THE RATIONALE OF THE COURT'S OPINION WOULD NOT REQUIRE THAT
PETITIONER BE SUMMONED TO TELL HIS STORY IN COURT.  (FN7) 

ALCATRAZ IS A MAXIMUM SECURITY INSTITUTION HOUSING DANGEROUS
INCORRIGIBLES, AND PETITIONER WANTS A CHANGE OF SCENERY.  THE COURT HAS
LEFT THE DOOR AJAR FOR A TRIP FROM CALIFORNIA TO OHIO ALONG WITH THE
ACCOMPANYING HAZARDS.  I WOULD DENY IT. 

FN1  I CONCUR IN PART I OF THE COURT'S OPINION. 

FN2  SECTION 2255 CASES HAVE BEEN STEADILY ON THE INCREASE.  THE
FISCAL YEAR 1961 SAW A NEW HIGH OF 560 APPLICATIONS FILED UNDER THIS
NATURE OF THESE APPLICATIONS IS INDICATED BY THE FACT THAT LESS THAN 3%
WERE GRANTED BY THE DISTRICT COURTS.    FN3  FOR A CASE IN WHICH THIS
FACTOR ALONE WAS CONSIDERED SUFFICIENT TO SUMMARILY DENY AN
APPLICATION, SEE UNITED STATES V. LOWE, 173 F.2D 346 (C.A.2D CIR.
1949). 

FN4  IN EVALUATING THE INFERENCES TO BE DRAWN FROM THE FILES AND
RECORDS SOME WEIGHT MUST BE ACCORDED THE PERSONAL RECOLLECTION OF THE
TRIAL JUDGE.  E.G., DARIO SANCHEZ V. UNITED STATES, 256 F.2D 73 (C.A.
1ST CIR. 1958).  JUDGE KLOEB OBSERVED PETITIONER AT THE TIME HE ENTERED
HIS PLEAS OF GUILTY AND AGAIN WHEN HE WAS SENTENCED.  HE HAD ALSO
LISTENED TO PETITIONER'S BLATANT LIES AT THE TRIAL OF HIS CODEFENDANT. 

FN5  ALTHOUGH PRISONS KEEP RECORDS OF LETTERS WHICH ACTUALLY GO OUT,
NO RECORD IS MADE OF EVERY LETTER DROPPED IN THE MAILBOX.  JAILS
LIKEWISE KEEP SOME RECORDS OF VISITORS BUT DO NOT NECESSARILY RECORD
WHICH PRISONERS ARE INTERVIEWED BY POLICE INVESTIGATORS AND
PROSECUTORS, WHO ARE THERE REGULARLY. 

FN6  IT COULD BE ARGUED THAT THE VISITOR AND MAILING RECORDS ARE PART
OF THE "FILES AND RECORDS OF THE CASE" WITHIN THE MEANING OF SEC. 2255
AND THAT THEREFORE SUCH RECORDS COULD BE EXAMINED BY THE TRIAL JUDGE IN
DETERMINING WHETHER A HEARING IS NECESSARY. 

FN7  28 U.S.C. SEC. 2255 PROVIDES IN PART THAT:  "A COURT MAY
ENTERTAIN AND DETERMINE SUCH MOTION WITHOUT REQUIRING THE PRODUCTION OF
THE PRISONER AT THE HEARING." 
..END :




DOWD BOX CO. V. COURTNEY 368 U.S. 502 


NO. 33.  ARGUED NOVEMBER 7, 1961 - DECIDED FEBRUARY 19, 1962 - 341 MASS.
337, 169 N.E.2D 885, AFFIRMED. 


CONFERS ON FEDERAL DISTRICT COURTS JURISDICTION OVER SUITS FOR
VIOLATION OF CONTRACTS BETWEEN EMPLOYERS AND LABOR ORGANIZATIONS
REPRESENTING EMPLOYEES IN INDUSTRIES AFFECTING INTERSTATE COMMERCE,
DOES NOT DIVEST STATE COURTS OF JURISDICTION OVER SUCH SUITS.  PP. 502
514. 

CHARLES DOWD BOX CO., INC., V. COURTNEY ET AL. 

CERTIORARI TO THE SUPERIOR COURT OF MASSACHUSETTS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

PROVIDES: 

"(A)  SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THIS CHAPTER, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES."  (FN1) 

THE SOLE QUESTION PRESENTED BY THIS CASE IS WHETHER THIS FEDERAL
STATUTE OPERATES TO DIVEST A STATE COURT OF JURISDICTION OVER A SUIT
FOR VIOLATION OF A CONTRACT BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION. 

THE PETITIONER IS AN EMPLOYER ENGAGED IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THE LABOR MANAGEMENT RELATIONS ACT OF 1947.  THE
UNITED STEELWORKERS OF AMERICA, AN INTERNATIONAL UNION, WAS THE
COLLECTIVE BARGAINING REPRESENTATIVE OF THE PETITIONER'S PRODUCTION AND
MAINTENANCE EMPLOYEES, ORGANIZED IN LOCAL 5158.  A FEW WEEKS BEFORE THE
EXPIRATION OF A COLLECTIVE BARGAINING AGREEMENT IN 1957, NEGOTIATIONS
WERE INITIATED BETWEEN REPRESENTATIVES OF THE UNION AND OF THE
PETITIONER WITH RESPECT TO PROPOSALS WHICH THE UNION HAD SUBMITTED FOR
A NEW AGREEMENT.  AFTER A NUMBER OF NEGOTIATING SESSIONS, A
"STIPULATION" WAS SIGNED BY REPRESENTATIVES OF EACH PARTY, CONTINUING
IN EFFECT MANY PROVISIONS OF THE OLD AGREEMENT, BUT PROVIDING FOR WAGE
INCREASES AND MAKING OTHER CHANGES WITH RESPECT TO HOLIDAYS AND
VACATIONS.  THE TERMS OF THE "STIPULATION" WERE LATER EMBODIED IN A
DRAFT OF A PROPOSED NEW AGREEMENT.  THE PETITIONER ORIGINALLY ANNOUNCED
TO ITS EMPLOYEES THAT IT WOULD PUT INTO EFFECT THE WAGE CHANGES AND
OTHER PROVISIONS COVERED BY THE "STIPULATION" AND DRAFT AGREEMENT, BUT
A FEW WEEKS LATER NOTIFIED ITS EMPLOYEES OF ITS INTENTION TO TERMINATE
THESE CHANGES AND RETURN "TO THE RATES IN EFFECT AS OF MAY 18, 1957." 
IT WAS THE PETITIONER'S POSITION THAT ITS BARGAINING REPRESENTATIVES
HAD ACTED WITHOUT AUTHORITY IN NEGOTIATING THE NEW AGREEMENT, AND THAT
THE UNION HAD BEEN SO ADVISED BEFORE ANY CONTRACT HAD ACTUALLY BEEN
CONCLUDED. 

THE PRESENT ACTION WAS THEN BROUGHT IN THE SUPERIOR COURT OF
MASSACHUSETTS FOR WORCESTER COUNTY BY THE RESPONDENTS, LOCAL UNION
OFFICERS AND A STAFF REPRESENTATIVE OF THE INTERNATIONAL UNION.  THE
COMPLAINT ALLEGED THAT THE PLAINTIFFS "FAIRLY AND ADEQUATELY REPRESENT
THE INTERESTS OF THE ENTIRE MEMBERSHIP" OF THE UNION AND LOCAL 5158,
AND ASKED FOR A JUDGMENT DECLARING THAT THERE EXISTED A VALID AND
BINDING COLLECTIVE BARGAINING AGREEMENT, FOR AN ORDER ENJOINING THE
COMPANY FROM TERMINATING OR VIOLATING IT, AND FOR AN ACCOUNTING AND
DAMAGES.  RESPONDING TO THE COMPLAINT, THE PETITIONER INTERPOSED
SEVERAL DEFENSES, AMONG THEM THE CONTENTION THAT, BY REASON OF SEC.
301(A) OF THE LABOR MANAGEMENT RELATIONS ACT, THE STATE COURT HAD NO
JURISDICTION OVER THE CONTROVERSY.  THE TRIAL COURT REJECTED THIS
ATTACK UPON ITS JURISDICTION, DETERMINED ON THE MERITS THAT THE
COLLECTIVE BARGAINING AGREEMENT WAS "VALID AND BINDING ON THE PARTIES
THERETO," AND ENTERED A MONEY JUDGMENT IN CONFORMITY WITH THE WAGE
PROVISIONS OF THE AGREEMENT. 

THE SUPREME JUDICIAL COURT OF MASSACHUSETTS AFFIRMED, EXPRESSLY
RULING THAT SEC. 301(A) HAS NOT MADE THE FEDERAL COURTS THE EXCLUSIVE
ARBITERS OF SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE.  AS CHIEF JUSTICE WILKINS PUT IT, "WE DO NOT ACCEPT THE
CONTENTION THAT STATE COURTS ARE WITHOUT JURISDICTION.  THE STATUTE
DOES NOT SO DECLARE.  THE CONFERRING OF JURISDICTION IN ACTIONS AT LAW
UPON THE APPROPRIATE DISTRICT COURTS OF THE UNITED STATES IS NOT, IN
AND OF ITSELF, A DEPRIVATION OF AN EXISTING JURISDICTION BOTH AT LAW
AND IN EQUITY IN STATE COURTS.  THE CASE PRINCIPALLY RELIED UPON BY THE
DEFENDANT, TEXTILE WKRS.  UNION OF AMERICA V. LINCOLN MILLS, 353 U.S.
448, DOES NOT SO STATE.  IN THE ABSENCE OF A CLEAR HOLDING BY THE
SUPREME COURT OF THE UNITED STATES THAT FEDERAL JURISDICTION HAS BEEN
MADE EXCLUSIVE, WE SHALL NOT MAKE WHAT WOULD BE TANTAMOUNT TO AN
ABDICATION OF THE HITHERTO UNDOUBTED JURISDICTION OF OUR OWN COURTS." 
(FN2)  CERTIORARI WAS GRANTED TO CONSIDER THE IMPORTANT QUESTION OF
FEDERAL LAW THUS PRESENTED.  365 U.S. 809.  WE AGREE WITH THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS THAT THE COURT OF THAT COMMONWEALTH HAD
JURISDICTION IN THIS CASE, AND WE ACCORDINGLY AFFIRM THE JUDGMENT
BEFORE US. 

IT HAS NOT BEEN ARGUED, NOR COULD IT BE, THAT SEC. 301(A) SPEAKS IN
TERMS OF EXCLUSIVITY OF FEDERAL COURT JURISDICTION OVER CONTROVERSIES
WITHIN THE STATUTE'S PURVIEW.  ON ITS FACE SEC. 301(A) SIMPLY GIVES THE
FEDERAL DISTRICT COURTS JURISDICTION OVER SUITS FOR VIOLATION OF
CERTAIN SPECIFIED TYPES OF CONTRACTS.  THE STATUTE DOES NOT STATE NOR
EVEN SUGGEST THAT SUCH JURISDICTION SHALL BE EXCLUSIVE.  IT PROVIDES
THAT SUITS OF THE KIND DESCRIBED "MAY" BE BROUGHT IN THE FEDERAL
DISTRICT COURTS, NOT THAT THEY MUST BE. 

THE PETITIONER POINTS OUT, HOWEVER, THAT THIS COURT HELD IN TEXTILE
WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, THAT SEC. 301(A) IS MORE
THAN JURISDICTIONAL - THAT IT AUTHORIZES FEDERAL COURTS TO FASHION,
FROM THE POLICY OF OUR NATIONAL LABOR LAWS, A BODY OF FEDERAL LAW FOR
THE ENFORCEMENT OF AGREEMENTS WITHIN ITS AMBIT.  THE COURT RECOGNIZED
IN THAT CASE THAT "STATE LAW, IF COMPATIBLE WITH THE PURPOSE OF SEC.
301, MAY BE RESORTED TO IN ORDER TO FIND THE RULE THAT WILL BEST
EFFECTUATE THE FEDERAL POLICY," BUT EMPHASIZED THAT "ANY STATE LAW
APPLIED  ...  WILL BE ABSORBED AS FEDERAL LAW  ...  ."  353 U.S., AT
457. 

IT IS ARGUED THAT THE RATIONALE OF LINCOLN MILLS WOULD BE FRUSTRATED
IF STATE COURTS WERE ALLOWED TO EXERCISE CONCURRENT JURISDICTION OVER
SUITS WITHIN THE PURVIEW OF SEC. 301(A).  THE TASK OF FORMULATING
FEDERAL COMMON LAW IN THIS AREA OF LABOR MANAGEMENT RELATIONS MUST BE
ENTRUSTED EXCLUSIVELY TO THE FEDERAL COURTS, IT IS SAID, BECAUSE
PARTICIPATION BY THE STATE COURTS WOULD LEAD TO A DISHARMONY
INCOMPATIBLE WITH THE LINCOLN MILLS CONCEPT OF AN ALL-EMBRACING BODY OF
FEDERAL LAW.   ONLY THE FEDERAL JUDICIARY, THE ARGUMENT GOES, POSSESSES
BOTH THE FAMILIARITY WITH FEDERAL LABOR LEGISLATION AND THE MONOLITHIC
JUDICIAL SYSTEM NECESSARY FOR THE PROPER ACHIEVEMENT OF THE CREATIVE
TASK ENVISIONED BY LINCOLN MILLS.  AN ANALOGY IS DRAWN TO OUR DECISIONS
WHICH HAVE RECOGNIZED THE NECESSITY OF WITHDRAWING FROM THE STATE
COURTS JURISDICTION OVER CONTROVERSIES ARGUABLY SUBJECT TO THE
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD.  (FN3) 

WHATEVER THE MERITS OF THIS ARGUMENT AS A MATTER OF POLICY, WE FIND
NOTHING TO INDICATE THAT CONGRESS ADOPTED SUCH A POLICY IN ENACTING
SEC. 301.  THE LEGISLATIVE HISTORY OF THE ENACTMENT NOWHERE SUGGESTS
THAT, CONTRARY TO THE CLEAR IMPORT OF THE STATUTORY LANGUAGE, CONGRESS
INTENDED IN ENACTING SEC. 301(A) TO DEPRIVE A PARTY TO A COLLECTIVE
BARGAINING CONTRACT OF THE RIGHT TO SEEK REDRESS FOR ITS VIOLATION IN
AN APPROPRIATE STATE TRIBUNAL. 

WE START WITH THE PREMISE THAT NOTHING IN THE CONCEPT OF OUR FEDERAL
SYSTEM PREVENTS STATE COURTS FROM ENFORCING RIGHTS CREATED BY FEDERAL
LAW.  CONCURRENT JURISDICTION HAS BEEN A COMMON PHENOMENON IN OUR
JUDICIAL HISTORY, AND EXCLUSIVE FEDERAL COURT JURISDICTION OVER CASES
ARISING UNDER FEDERAL LAW HAS BEEN THE EXCEPTION RATHER THAN THE RULE. 
(FN4)  THIS COURT'S APPROACH TO THE QUESTION OF WHETHER CONGRESS HAS
OUSTED STATE COURTS OF JURISDICTION WAS ENUNCIATED BY MR. JUSTICE
BRADLEY IN CLAFIN V. HOUSEMAN, 93 U.S. 130, AND HAS REMAINED UNMODIFIED
THROUGH THE YEARS.  "THE GENERAL QUESTION, WHETHER STATE COURTS CAN
EXERCISE CONCURRENT JURISDICTION WITH THE FEDERAL COURTS IN CASES
ARISING UNDER THE CONSTITUTION, LAWS, AND TREATIES OF THE UNITED
STATES, HAS BEEN ELABORATELY DISCUSSED, BOTH ON THE BENCH AND IN
PUBLISHED TREATISES  ...  AND THE RESULT OF THESE DISCUSSIONS HAS, IN
OUR JUDGMENT, BEEN  ...  TO AFFIRM THE JURISDICTION, WHERE IT IS NOT
EXCLUDED BY EXPRESS PROVISION, OR BY INCOMPATIBILITY IN ITS EXERCISE
ARISING FROM THE NATURE OF THE PARTICULAR CASE."  93 U.S., AT 136.  SEE
ROBB V. CONNOLLY, 111 U.S. 624; SECOND EMPLOYERS' LIABILITY CASES, 223
U.S. 1, 56-59; ST. LOUIS, B.&.M.R. CO. V. TAYLOR, 266 U.S. 200; GARRETT
V. MOORE-MCCORMACK CO., 317 U.S. 239, 245; BROWN V. GERDES, 321 U.S.
178, 188 (CONCURRING OPINION).  (FN5)  TO HOLD THAT SEC. 301(A)
OPERATES TO DEPRIVE THE STATE COURTS OF A SUBSTANTIAL SEGMENT OF THEIR
ESTABLISHED JURISDICTION OVER CONTRACT ACTIONS WOULD THUS BE TO
DISREGARD THIS CONSISTENT HISTORY OF HOSPITABLE ACCEPTANCE OF
CONCURRENT JURISDICTION. 

SUCH A CONSTRUCTION OF SEC. 301(A) WOULD ALSO DISREGARD THE
PARTICULARIZED HISTORY BEHIND THE ENACTMENT OF THAT PROVISION OF THE
FEDERAL LABOR LAW.  THE LEGISLATIVE HISTORY MAKES CLEAR THAT THE BASIC
PURPOSE OF SEC. 301(A) WAS NOT TO LIMIT, BUT TO EXPAND, THE
AVAILABILITY OF FORUMS FOR THE ENFORCEMENT OF CONTRACTS MADE BY LABOR
ORGANIZATIONS.  MOREOVER, THERE IS EXPLICIT EVIDENCE THAT CONGRESS
EXPRESSLY INTENDED NOT TO ENCROACH UPON THE EXISTING JURISDICTION OF
THE STATE COURTS. 

THE LABOR MANAGEMENT RELATIONS ACT OF 1947 REPRESENTED A FAR-REACHING
AND MANY FACETED LEGISLATIVE EFFORT TO PROMOTE THE ACHIEVEMENT OF
INDUSTRIAL PEACE THROUGH ENCOURAGEMENT AND REFINEMENT OF THE COLLECTIVE
BARGAINING PROCESS.  IT WAS RECOGNIZED FROM THE OUTSET THAT SUCH AN
EFFORT WOULD BE PURPOSELESS UNLESS BOTH PARTIES TO BE A COLLECTIVE
BARGAINING AGREEMENT COULD HAVE REASONABLE ASSURANCE THAT THE CONTRACT
THEY HAD NEGOTIATED WOULD BE HONORED.  SECTION 301(A) REFLECTS
CONGRESSIONAL RECOGNITION OF THE VITAL IMPORTANCE OF ASSURING THE
ENFORCEABILITY OF SUCH AGREEMENTS. 

THE DIRECT ANTECEDENT OF SEC. 301 WAS SEC. 10 OF THE CASE BILL, H.R.
4908, 79TH CONG., 2D SESS., WHICH WAS PASSED BY BOTH HOUSES OF THE
CONGRESS, BUT VETOED BY THE PRESIDENT IN 1946.  IN CONFERRING UPON THE
FEDERAL DISTRICT COURTS JURISDICTION OVER SUITS UPON CONTRACTS MADE BY
LABOR ORGANIZATIONS, THAT SECTION OF THE CASE BILL CONTAINED PROVISIONS
SUBSTANTIALLY THE SAME FOR PRESENT PURPOSES AS THE PROVISIONS OF SEC.
301 AT ISSUE IN THIS CASE.  (FN6) 

IN CONSIDERING THESE PROVISIONS OF THE PROPOSED LEGISLATION IN 1946,
CONGRESS MANIFESTED ITS COMPLETE AWARENESS OF BOTH THE EXISTENCE AND
LIMITATIONS OF STATE COURT REMEDIES FOR VIOLATION OF COLLECTIVE
AGREEMENTS.  A PRINCIPAL MOTIVE BEHIND THE CREATION OF FEDERAL
JURISDICTION IN THIS FIELD WAS THE BELIEF THAT THE COURTS OF MANY
STATES COULD PROVIDE ONLY IMPERFECT RELIEF BECAUSE OF RULES OF LOCAL
LAW WHICH MADE SUITS AGAINST LABOR ORGANIZATIONS DIFFICULT OR
IMPOSSIBLE, BY REASON OF THEIR STATUS AS UNINCORPORATED ASSOCIATIONS. 
THE DISCUSSION BETWEEN THE SUPPORTERS AND OPPONENTS OF THIS PROVISION
OF THE CASE BILL CENTERED PRIMARILY ON THE NATURE AND AVAILABILITY OF
EXISTING STATE REMEDIES.  AS A RESULT, BOTH FACTIONS COLLECTED AND
PRESENTED COMPREHENSIVE DATA RESPECTING THE LAWS OF THE VARIOUS STATES
AS TO THE STATUS OF LABOR ORGANIZATIONS AS LEGAL ENTITIES.  SEE, E.G.,
S. REP. NO. 1177, 79TH CONG., 2D SESS., MINORITY REPORT, PP. 10-14; 92
CONG. REC.  5412-5415. 

THE BILL WHICH THE SENATE ORIGINALLY PASSED THE FOLLOWING YEAR
CONTAINED A PROVISION MAKING A BREACH OF A COLLECTIVE BARGAINING
AGREEMENT AN UNFAIR LABOR PRACTICE SUBJECT TO THE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD, S. 1126, 80TH CONG., 1ST SESS., SECS.
8(A)(6), 8(B)(5), AS WELL AS A PROVISION CONFERRING JURISDICTION UPON
THE FEDERAL COURTS OVER SUITS FOR VIOLATION OF COLLECTIVE AGREEMENTS. 
IN CONFERENCE, HOWEVER, IT WAS DECIDED TO MAKE COLLECTIVE BARGAINING
AGREEMENTS ENFORCEABLE ONLY IN THE COURTS.  "ONCE PARTIES HAVE MADE A
COLLECTIVE BARGAINING CONTRACT," THE CONFERENCE REPORT STATED, "THE
ENFORCEMENT OF THAT CONTRACT SHOULD BE LEFT TO THE USUAL PROCESSES OF
THE LAW AND NOT TO THE NATIONAL LABOR RELATIONS BOARD."  H.R. CONF.
REP. NO. 510, 80TH CONG., 1ST SESS., P. 42. 

THE REPORT WHICH ACCOMPANIED THE BILL PASSED BY THE HOUSE OF
REPRESENTATIVES IN 1947 EXPLICITLY ACKNOWLEDGED THAT THE PROPOSED SEC.
301 WAS A SLIGHTLY RECAST VERSION OF SEC. 10 OF THE CASE BILL.  H.R.
REP. NO. 245, 80TH CONG., 1ST SESS., P. 45.  THE RECORD OF THE
CONGRESSIONAL DEBATES ON SEC. 301 OF THE 1947 ACT REFLECTS THE SAME
CONCERN WITH THE ADEQUACY OF THE LAWS OF THE VARIOUS STATES AS HAD BEEN
EXPRESSED THE PREVIOUS YEAR IN THE DISCUSSION OF SEC. 10 OF THE CASE
BILL.  THE MINORITY REPORT IN THE HOUSE IN 1947 AGAIN DISCUSSED THE
AVAILABILITY OF RELIEF, THE ALTERNATIVE MEANS OF RECOVERY, AND THE
SCOPE OF REMEDY IN SUITS AGAINST LABOR ORGANIZATIONS UNDER THE LAWS OF
THE VARIOUS STATES.  H.R. REP. NO. 245, 80TH CONG., 1ST SESS., PP. 15
18. 

THE CLEAR IMPLICATION OF THE ENTIRE RECORD OF THE CONGRESSIONAL
DEBATES IN BOTH 1946 AND 1947 IS THAT THE PURPOSE OF CONFERRING
JURISDICTION UPON THE FEDERAL DISTRICT COURTS WAS NOT TO DISPLACE, BUT
TO SUPPLEMENT, THE THOROUGHLY CONSIDERED JURISDICTION OF THE COURTS OF
THE VARIOUS STATES OVER CONTRACTS MADE BY LABOR ORGANIZATIONS.  THERE
SEEMS TO HAVE BEEN EXPLICIT MENTION OF THE QUESTION ONLY ONCE - IN THE
SENATE DEBATE OVER SEC. 10 OF THE 1946 BILL.  A SPOKESMAN FOR THE BILL,
SENATOR FERGUSON, STATED UNEQUIVOCALLY THAT STATE COURT JURISDICTION
WOULD NOT BE OUSTED BY ENACTMENT OF THE FEDERAL LAW:    "MR. FERGUSON. 
MR. PRESIDENT, THERE IS NOTHING WHATEVER IN THE NOW-BEING-CONSIDERED
AMENDMENT WHICH TAKES AWAY FROM THE STATE COURTS ALL THE PRESENT RIGHTS
OF THE STATE COURTS TO ADJUDICATE THE RIGHTS BETWEEN PARTIES IN
RELATION TO LABOR AGREEMENTS.  THE AMENDMENT MERELY SAYS THAT THE
FEDERAL COURTS SHALL HAVE JURISDICTION.  IT DOES NOT ATTEMPT TO TAKE
AWAY THE JURISDICTION OF THE STATE COURTS, AND THE MERE FACT THAT THE
SENATOR AND I DISAGREE DOES NOT CHANGE THE EFFECT OF THE AMENDMENT. 

"MR. MURRAY.  BUT IT AUTHORIZES THE EMPLOYERS TO BRING SUIT IN THE
FEDERAL COURTS, IF THEY SO DESIRE. 

"MR. FERGUSON.  THAT IS CORRECT.  THAT IS ALL IT DOES.  IT TAKES AWAY
NO JURISDICTION OF THE STATE COURTS."  92 CONG. REC. 5708. 

ALTHOUGH THE RECORD OF THE 1947 DEBATES CONTAINS NO EXPLICIT
STATEMENT OF SUCH PRECISE RELEVANCE AS SENATOR FERGUSON'S REMARKS IN
1946, THE ENTIRE TENOR OF THE 1947 LEGISLATIVE HISTORY CONFIRMS THAT
THE PURPOSE OF SEC. 301, LIKE ITS COUNTERPART IN THE CASE BILL, WAS TO
FILL THE GAPS IN THE JURISDICTIONAL LAW OF SOME OF THE STATES, NOT TO
ABOLISH EXISTING STATE COURT JURISDICTION.  FOR EXAMPLE, SENATOR BALL,
ONE OF THE FLOOR LEADERS FOR THE BILL, STATED: 

"WE GIVE TO EMPLOYERS THE RIGHT TO SUE A UNION IN INTERSTATE
COMMERCE, IN A FEDERAL COURT, FOR VIOLATION OF CONTRACT.  IT DOES NOT
GO BEYOND THAT.  AS A MATTER OF LAW, I THINK THEY HAVE THAT RIGHT, NOW,
BUT BECAUSE UNIONS ARE VOLUNTARY ASSOCIATIONS, THE COMMON LAW IN A
GREAT MANY STATES REQUIRES SERVICE ON EVERY MEMBER OF THE UNION, WHICH
IS VERY DIFFICULT; ...  " 93 CONG. REC. 5014.  (FN7) 

THIS BASIC PURPOSE OF SEC. 301 IS EPITOMIZED IN THE SENATE REPORT:
"IT IS APPARENT THAT UNTIL ALL JURISDICTIONS, AND PARTICULARLY THE
FEDERAL GOVERNMENT, AUTHORIZES ACTIONS AGAINST LABOR UNIONS AS LEGAL
ENTITIES, THERE WILL NOT BE THE MUTUAL RESPONSIBILITY NECESSARY TO
VITALIZE COLLECTIVE-BARGAINING AGREEMENTS."  S. REP. NO. 105, 80TH
CONG., 1ST SESS., P. 17.  IT IS OBVIOUS THAT CONGRESS DID NOT INTEND
THIS REMEDIAL MEASURE TO DESTROY THE FOUNDATION UPON WHICH IT WAS
BUILT. 

THIS COURT, IN HOLDING THAT THE LABOR MANAGEMENT RELATIONS ACT OF
1947 OPERATES TO WITHDRAW FROM THE JURISDICTION OF THE STATES
CONTROVERSIES ARGUABLY SUBJECT TO THE JURISDICTION OF THE NATIONAL
LABOR RELATIONS BOARD, HAS DELINEATED THE SPECIFIC CONSIDERATIONS WHICH
LED TO THAT CONCLUSION: 

"CONGRESS DID NOT MERELY LAY DOWN A SUBSTANTIVE RULE OF LAW TO BE
ENFORCED BY ANY TRIBUNAL COMPETENT TO APPLY LAW GENERALLY TO THE
PARTIES.  IT WENT ON TO CONFIDE PRIMARY INTERPRETATION AND APPLICATION
OF ITS RULES TO A SPECIFIC AND SPECIALLY CONSTITUTED TRIBUNAL AND
PRESCRIBED A PARTICULAR PROCEDURE FOR INVESTIGATION, COMPLAINT AND
NOTICE, AND HEARING AND DECISION, INCLUDING JUDICIAL RELIEF PENDING A
FINAL ADMINISTRATIVE ORDER.  CONGRESS EVIDENTLY CONSIDERED THAT
CENTRALIZED ADMINISTRATION OF SPECIALLY DESIGNED PROCEDURES WAS
NECESSARY TO OBTAIN UNIFORM APPLICATION OF ITS SUBSTANTIVE RULES AND TO
AVOID THESE DIVERSITIES AND CONFLICTS LIKELY TO RESULT FROM A VARIETY
OF LOCAL PROCEDURES AND ATTITUDES TOWARD LABOR CONTROVERSIES."  GARNER
V. TEAMSTERS UNION, 346 U.S. 485, 490. 

BY CONTRAST, CONGRESS EXPRESSLY REJECTED THAT POLICY WITH RESPECT TO
VIOLATIONS OF COLLECTIVE BARGAINING AGREEMENTS BY REJECTING THE
PROPOSAL THAT SUCH VIOLATIONS BE MADE UNFAIR LABOR PRACTICES. 
INSTEAD, CONGRESS DELIBERATELY CHOSE TO LEAVE THE ENFORCEMENT OF
COLLECTIVE AGREEMENTS "TO THE USUAL PROCESSES OF THE LAW." 

IT IS IMPLICIT IN THE CHOICE CONGRESS MADE THAT "DIVERSITIES AND
CONFLICTS" MAY OCCUR, NO LESS AMONG THE COURTS OF THE ELEVEN FEDERAL
CIRCUITS, THAN AMONG THE COURTS OF THE SEVERAL STATES, AS THERE EVOLVES
IN THIS FIELD OF LABOR MANAGEMENT RELATIONS THAT BODY OF FEDERAL COMMON
LAW OF WHICH LINCOLN MILLS SPOKE.  BUT THIS NOT NECESSARILY UNHEALTHY
PROSPECT IS NOT MORE THAN THE USUAL CONSEQUENCE OF THE HISTORIC
ACCEPTANCE OF CONCURRENT STATE AND FEDERAL JURISDICTION OVER CASES
ARISING UNDER FEDERAL LAW.  TO RESOLVE AND ACCOMMODATE SUCH DIVERSITIES
AND CONFLICTS IS ONE OF THE TRADITIONAL FUNCTIONS OF THIS COURT.  (FN8)
AFFIRMED. 

FN1  THE REMAINING PROVISIONS OF SEC. 301 ARE AS FOLLOWS: 

"(B)  ANY LABOR ORGANIZATION WHICH REPRESENTS EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE AS DEFINED IN THIS CHAPTER AND ANY EMPLOYER
WHOSE ACTIVITIES AFFECT COMMERCE AS DEFINED IN THIS CHAPTER AND ANY
EMPLOYER WHOSE ACTIVITIES AFFECT COMMERCE AS DEFINED IN THIS CHAPTER
SHALL BE BOUND BY THE ACTS OF ITS AGENTS.  ANY SUCH LABOR ORGANIZATION
MAY SUE OR BE SUED AS AN ENTITY AND IN BEHALF OF THE EMPLOYEES WHOM IT
REPRESENTS IN THE COURTS OF THE UNITED STATES.  ANY MONEY JUDGMENT
AGAINST A LABOR ORGANIZATION IN A DISTRICT COURT OF THE UNITED STATES
SHALL BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND
AGAINST ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL
MEMBER OR HIS ASSETS. 

"(C) FOR THE PURPOSES OF ACTIONS AND PROCEEDINGS BY OR AGAINST LABOR
ORGANIZATIONS IN THE DISTRICT COURTS OF THE UNITED STATES, DISTRICT
COURTS SHALL BE DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1)
IN THE DISTRICT IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL
OFFICE, OR (2) IN ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR
AGENTS ARE ENGAGED IN REPRESENTING OR ACTING FOR EMPLOYEE MEMBERS. 

"(D)  THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS OF ANY
COURT OF THE UNITED STATES UPON AN OFFICER OR AGENT OF A LABOR
ORGANIZATION, IN HIS CAPACITY AS SUCH, SHALL CONSTITUTE SERVICE UPON
THE LABOR ORGANIZATION. 

"(E)  FOR THE PURPOSES OF THIS SECTION, IN DETERMINING WHETHER ANY
PERSON IS ACTING AS AN 'AGENT' OF ANOTHER PERSON SO AS TO MAKE SUCH
OTHER PERSON RESPONSIBLE FOR HIS ACTS, THE QUESTION OF WHETHER THE
SPECIFIC ACTS PERFORMED WERE ACTUALLY AUTHORIZED OR SUBSEQUENTLY
RATIFIED SHALL NOT BE CONTROLLING."  29 U.S.C. SEC. 185, 61 STAT. 156
157. 

FN2  341 MASS. 337, 338-339, 169 N.E.2D 885, 887.  AS POINTED OUT BY
THE MASSACHUSETTS COURT, ITS VIEW IS IN ACCORD WITH OTHER STATE COURT
DECISIONS.  MCCARROLL V. LOS ANGELES COUNTY DIST. COUNCIL OF
CARPENTERS, 49 CAL. 2D 45, 57-60, 315 P.2D 322, 328-330; CONNECTICUT
CO. V. DIVISION 425, STREET & ELECTRIC RAILWAY EMPLOYEES, 147 CONN.
608, 164 A.2D 413; HARBISON-WALKER REFRACTORIES CO. V. LOCAL 702,
UNITED BRICK & CLAY WORKERS, 339 S.W.2D 933 (KY. CT. APP.); MILLER V.
KANSAS CITY POWER & LIGHT CO., 332 S.W.2D 18 (MO. APP.); ANCHOR MOTOR
FREIGHT N.Y. CORP. V. LOCAL 445, TEAMSTERS UNION, 5 APP. DIV. 2D 869,
171 N.Y.S.2D 511; STEINBERG V. MENDEL ROSENZWEIG FINE FURS, 9 MISC. 2D
611, 167 N.Y.S.2D 685; GENERAL ELECTRIC CO. V. UNITED AUTOMOBILE
WORKERS, 93 OHIO APP. 139, 153-156, 108 N.E.2D 211, 220-222; LOCAL
LODGE NO. 774, INT'L ASSN. OF MACHINISTS V. CESSNA AIRCRAFT CO., 186
KAN. 569, 352 P.2D 420; LOCAL 8, LONGSHOREMEN'S UNION V. HARVEY
ALUMINUM, 226 ORE.  94, 359 P.2D 112; SPRINGER V. POWDER POWER TOOL
CORP., 220 ORE.  102, 348 P.2D 1112; PHILADELPHIA MARINE TRADE ASSN. V.
LOCAL 1291, LONGSHOREMEN'S ASSN., 382 PA. 326, 115 A.2D 733; LUCAS
FLOUR CO. V. LOCAL 174, TEAMSTERS UNION, 57 WASH. 2D 95, 356 P.2D 1;
CLARK V. HEIN-WERNER CORP., 8 WIS. 2D 264, 99 N.W.2D 132, 100 N.W.2D
317.  BUT AT LEAST TWO FEDERAL COURTS HAVE EXPRESSED THE VIEW THAT
THEIR JURISDICTION UNDER SEC. 301(A) MIGHT BE EXCLUSIVE.  ASSOCIATION
OF WESTINGHOUSE EMPLOYEES V. WESTINGHOUSE ELEC.  CORP., 210 F.2D 623,
629-630, NOTE 16, AFF'D 348 U.S. 437; INTERNATIONAL PLAINFIELD MOTOR
CO. V. LOCAL 343, UNITED AUTOMOBILE WORKERS, 123 F. SUPP.  683, 692
(D.N.J.). 

FN3  SEE, E.G., SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S.
236. 

FN4  INDEED, CONGRESS HAS SO ARRANGED THE LIMITED JURISDICTION OF
FEDERAL COURTS THAT SOME FEDERAL LAWS CAN BE ENFORCED ONLY IN THE STATE
COURTS.  SEE, E.G., 28 U.S.C. SEC. 1331, CONFERRING JURISDICTION UPON
FEDERAL COURTS OF CIVIL ACTIONS ARISING UNDER THE CONSTITUTION, LAWS,
OR TREATIES OF THE UNITED STATES ONLY IF THE MATTER IN CONTROVERSY
EXCEEDS THE SUM OR VALUE OF $10,000. 

FN5  SEE ALSO HOUSTON V. MOORE, 5 WHEAT.  1, 25-27, AND SEE GENERALLY
THE FEDERALIST NO. 82 (HAMILTON). 

FN6  "SEC.  10.  (A)  SUITS FOR VIOLATION OF A CONTRACT CONCLUDED AS
THE RESULT OF COLLECTIVE BARGAINING BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION IF SUCH CONTRACT AFFECTS COMMERCE AS DEFINED IN THIS ACT
MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED STATES HAVING
JURISDICTION OF THE PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHOSE ACTIVITIES AFFECT COMMERCE AS
DEFINED IN THIS ACT SHALL BE BOUND BY THE ACTS OF ITS DULY AUTHORIZED
AGENTS ACTING WITHIN THE SCOPE OF THEIR AUTHORITY FROM THE SAID LABOR
ORGANIZATION AND MAY SUE OR BE SUED AS AN ENTITY AND IN BEHALF OF THE
EMPLOYEES WHOM IT REPRESENTS IN THE COURTS OF THE UNITED STATES:
PROVIDED, THAT ANY MONEY JUDGMENT AGAINST SUCH LABOR ORGANIZATION SHALL
BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST
ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER
OR HIS ASSETS. 

"(C)  FOR THE PURPOSES OF THIS SECTION DISTRICT COURTS SHALL BE
DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1) IN THE DISTRICT
IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL OFFICE, OR (2) IN
ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR AGENTS ARE
ENGAGED IN PROMOTING OR PROTECTING THE INTERESTS OF EMPLOYEE MEMBERS. 
THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS UPON SUCH
OFFICER OR AGENT SHALL CONSTITUTE SERVICE UPON THE LABOR ORGANIZATION. 

"(D)  ANY EMPLOYEE WHO PARTICIPATES IN A STRIKE OR OTHER INTERFERENCE
WITH THE PERFORMANCE OF AN EXISTING COLLECTIVE BARGAINING AGREEMENT, IN
VIOLATION OF SUCH AGREEMENT, IF SUCH STRIKE OR INTERFERENCE IS NOT
RATIFIED OR APPROVED BY THE LABOR ORGANIZATION PARTY TO SUCH AGREEMENT
AND HAVING EXCLUSIVE BARGAINING RIGHTS FOR SUCH EMPLOYEE, SHALL LOSE
HIS STATUS AS AN EMPLOYEE OF THE EMPLOYER PARTY TO SUCH AGREEMENT FOR
THE PURPOSES OF SECTIONS 8, 9, AND 10 OF THE NATIONAL LABOR RELATIONS
ACT:  PROVIDED, THAT SUCH LOSS OF STATUS FOR SUCH EMPLOYEE SHALL CEASE
IF AND WHEN HE IS REEMPLOYED BY SUCH EMPLOYER." 

FN7  SEE ALSO THE REMARKS OF SENATOR SMITH, 93 CONG. REC. 4281. 

FN8  IN THE COURSE OF ARGUMENT AT THE BAR TWO QUESTIONS WERE
DISCUSSED WHICH ARE NOT INVOLVED IN THIS CASE, AND UPON WHICH WE
EXPRESSLY REFRAIN FROM INTIMATING ANY VIEW - WHETHER THE NORRIS
LAGUARDIA ACT MIGHT BE APPLICABLE TO A SUIT BROUGHT IN A STATE COURT
FOR VIOLATION OF A CONTRACT MADE BY A LABOR ORGANIZATION, AND WHETHER
THERE MIGHT BE IMPEDIMENTS TO THE FREE REMOVAL TO A FEDERAL COURT OF
SUCH A SUIT.  THE RELATION OF THE NORRIS-LAGUARDIA ACT TO STATE COURTS
APPLYING FEDERAL LABOR LAW HAS NEVER BEEN DECIDED BY THIS COURT.  SEE
MCCARROLL V. LOS ANGELES COUNTY DIST. COUNCIL OF CARPENTERS, 49 CAL. 2D
45, 315 P.2D 322.  FOR THAT MATTER, WE HAVE NOT YET RULED ON THE EFFECT
OF NORRIS-LAGUARDIA UPON THE JURISDICTION OF FEDERAL COURTS IN THIS
AREA.  COMPARE LOCAL 795, TEAMSTERS UNION V. YELLOW TRANSIT FREIGHT
LINES, INC., 282 F.2D 345, CERTIORARI GRANTED, 364 U.S. 931, WITH
SINCLAIR REF. CO. V. ATKINSON, 290 F.2D 312, CERTIORARI GRANTED, 368
U.S. 937.  AND QUITE OBVIOUSLY WE HAVE NOT YET CONSIDERED THE VARIOUS
PROBLEMS CONCERNING REMOVAL UNDER 28 U.S.C. SEC. 1441.  SEE SWIFT & CO.
V. UNITED PACKINGHOUSE WORKERS, 177 F. SUPP. 511; FAY V. AMERICAN
CYSTOSCOPE MAKERS, INC., 98 F. SUPP. 278. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :




ST. HELENA PARISH SCHOOL BOARD V. HALL 368 U.S. 515 


NO. 586.  DECIDED FEBRUARY 19, 1962 - 197 F. SUPP. 649, AFFIRMED. 


ST. HELENA PARISH SCHOOL BOARD ET AL. V. HALL ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















JOHNSON V. HORTON 368 U.S. 515 


NO. 700, MISC.  DECIDED FEBRUARY 19, 1962 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: SEE 343 S.W.2D 653. 


JOHNSON V. HORTON. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















KAVANAGH V. STENHOUSE 368 U.S. 516 


NO. 615.  DECIDED FEBRUARY 19, 1962 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  - R.I. - , 174 A.2D
560. 


KAVANAGH V. STENHOUSE. 

APPEAL FROM THE SUPREME COURT OF RHODE ISLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT FURTHER CONSIDERATION OF
THE QUESTION OF JURISDICTION SHOULD BE POSTPONED TO A HEARING OF THE
CASE ON THE MERITS. 
..END :












RAINSBERGER V. LEYPOLDT 368 U.S. 516 


NO. 835, MISC.  DECIDED FEBRUARY 19, 1962 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 77 NEV. 399, 365 P.2D 489. 


RAINSBERGER V. LEYPOLDT, SHERIFF. 

APPEAL FROM THE SUPREME COURT OF NEVADA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPER WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















IN RE KELLEY 368 U.S. 517 


NO. 733, MISC.  DECIDED FEBRUARY 19, 1962. 


IN RE KELLEY. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















QUINTON V. MATTHEWS 368 U.S. 517 


NO. 762, MISC.  DECIDED FEBRUARY, 19, 1962 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW:  - ALASKA - , 362 P.2D 932. 


QUINTON ET AL. V. MATTHEWS ET AL. 

APPEAL FROM THE SUPREME COURT OF ALASKA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















SHAPIRO V. JOSEPHSON 368 U.S. 517 


NO. 805, MISC.  DECIDED FEBRUARY 19, 1962 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


SHAPIRO V. JOSEPHSON ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BLAU V. LEHMAN. 368 U.S. 403 


NO. 66.  ARGUED DECEMBER 12-13, 1961 - DECIDED JANUARY 22, 1962 - 286
F.2D 786, AFFIRMED. 


PETITIONER, A STOCKHOLDER IN A CORPORATION WITH STOCK REGISTERED ON A
NATIONAL SECURITIES EXCHANGE, SUED UNDER SEC. 16(B) OF THE SECURITIES
EXCHANGE ACT OF 1934 TO RECOVER ON BEHALF OF THE CORPORATION FROM ONE
OF ITS DIRECTORS AND A PARTNERSHIP OF WHICH HE WAS A MEMBER "SHORT
SWING" PROFITS REALIZED BY THEM ON THE PURCHASE AND SALE BY THE
PARTNERSHIP OF STOCK OF THE CORPORATION WITHIN A PERIOD OF LESS THAN
SIX MONTHS.  PETITIONER ALLEGED THAT THE PARTNERSHIP HAD "DEPUTED" THE
DIRECTOR TO REPRESENT ITS INTERESTS ON THE CORPORATION'S BOARD OF
DIRECTORS AND THAT, BY REASON OF HIS INSIDE INFORMATION, HE HAD CAUSED
THE PARTNERSHIP TO PURCHASE THE STOCK OF THE CORPORATION.  THE DISTRICT
COURT FOUND THAT THESE ALLEGATIONS WERE NOT SUPPORTED BY THE EVIDENCE
AND THAT THE PARTNERSHIP HAD BOUGHT THE STOCK SOLELY ON THE BASIS OF
THE CORPORATION'S PUBLIC ANNOUNCEMENTS AND WITHOUT CONSULTING THE
DIRECTOR.  ACCORDINGLY, IT DENIED A JUDGMENT AGAINST THE PARTNERSHIP
AND THE DIRECTOR FOR THE FULL AMOUNT OF THE RESULTING PROFITS AND
AWARDED A JUDGMENT AGAINST THE DIRECTOR FOR ONLY HIS PROPORTIONATE
SHARE OF THE PARTNERSHIP'S PROFITS ON THESE TRANSACTIONS, WITHOUT
INTEREST.  THE COURT OF APPEALS AFFIRMED IN ALL RESPECTS.  HELD:  THE
JUDGMENT IS AFFIRMED.  PP. 404-414. 

(1)  THE FINDINGS OF THE COURTS BELOW ON THE DISPUTED FACTUAL ISSUES
WERE NOT CLEARLY ERRONEOUS; THEY WERE NOT CONCLUSIONS OF LAW; AND THEY
ARE SUSTAINED.  PP. 408-409. 

(2)  THE PARTNERSHIP WAS NEITHER AN OFFICER NOR A 10% STOCKHOLDER OF
THE CORPORATION, AND IT CANNOT BE HELD LIABLE AS A DIRECTOR UNDER SEC.
16(B).  PP. 409-413. 

(A)  THE FINDINGS OF THE COURTS BELOW, WHICH ARE ACCEPTED BY THIS
COURT, PRECLUDE A FINDING THAT THE PARTNERSHIP ACTUALLY FUNCTIONED AS A
DIRECTOR OF THE CORPORATION THROUGH A PARTNER WHO HAD BEEN DEPUTIZED BY
THE PARTNERSHIP TO PERFORM A DIRECTOR'S DUTIES, NOT FOR HIMSELF BUT FOR
THE PARTNERSHIP.  PP. 409-410. 

(B)  THE FACT THAT SEC. 3(A)(9) DEFINES "PERSON" AS INCLUDING A
PARTNERSHIP DOES NOT REQUIRE THAT THE ENTIRE PARTNERSHIP BE HELD LIABLE
AS AN "INSIDER" UNDER SEC. 16(B) MERELY BECAUSE ONE OF ITS MEMBERS WAS
A DIRECTOR OF THE CORPORATION.  P. 410. 

(C)  THIS COURT CANNOT EXTEND THE COVERAGE OF SEC. 16(B) SO AS TO
INCLUDE A PARTNERSHIP OF WHICH A DIRECTOR IS A MEMBER.  PP. 410-413. 

(3)  THE COURTS BELOW PROPERLY HELD THAT THE DIRECTOR WAS LIABLE ONLY
FOR ANY PROFIT REALIZED BY HIMSELF AND NOT FOR ALL THE PROFITS EARNED
BY THE PARTNERSHIP ON THESE TRANSACTIONS.  PP. 413-414. 

(4)  DENIAL BY THE TWO COURTS BELOW OF INTEREST ON THE AMOUNT FOR
WHICH THE DIRECTOR WAS HELD LIABLE WAS NEITHER SO UNFAIR NOR SO
INEQUITABLE AS TO REQUIRE THIS COURT TO UPSET IT.  P. 414. 

BLAU V. LEHMAN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERR BLAU, A STOCKHOLDER IN TIDE WATER ASSOCIATED OIL
COMPANY, BROUGHT THIS ACTION IN A UNITED STATES DISTRICT COURT ON
BEHALF OF THE COMPANY UNDER SEC. 16(B) (FN1) OF THE SECURITIES EXCHANGE
ACT OF 1934 TO RECOVER WITH INTEREST "SHORT SWING" PROFITS, THAT IS,
PROFITS EARNED WITHIN A SIX MONTHS' PERIOD BY THE PURCHASE AND SALE OF
SECURITIES, ALLEGED TO HAVE BEEN "REALIZED" BY RESPONDENTS IN TIDE
WATER SECURITIES DEALINGS.  RESPONDENTS ARE LEHMAN BROTHERS, A
PARTNERSHIP ENGAGED IN INVESTMENT BANKING, SECURITIES BROKERAGE AND IN
SECURITIES TRADING FOR ITS OWN ACCOUNT, AND JOSEPH A. THOMAS, A MEMBER
OF LEHMAN BROTHERS AND A DIRECTOR OF TIDE WATER.  THE COMPLAINT ALLEGED
THAT LEHMAN BROTHERS "DEPUTED  ...  THOMAS, TO REPRESENT ITS INTERESTS
AS A DIRECTOR ON THE TIDE WATER BOARD OF DIRECTORS," AND THAT WITHIN A
PERIOD OF SIX MONTHS IN 1954 AND 1955 THOMAS, WHILE REPRESENTING THE
INTERESTS OF LEHMAN BROTHERS AS A DIRECTOR OF TIDE WATER AND "BY REASON
OF HIS SPECIAL AND INSIDE KNOWLEDGE OF THE AFFAIRS OF TIDE WATER,
ADVISED AND CAUSED THE DEFENDANTS, LEHMAN BROTHERS, TO PURCHASE AND
SELL 50,000 SHARES OF  ...  STOCK OF TIDE WATER, REALIZING PROFITS
THEREON WHICH DID NOT INURE TO AND WERE NOT RECOVERED BY TIDE WATER." 

THE CASE WAS TRIED BEFORE A DISTRICT JUDGE WITHOUT A JURY.  THE
EVIDENCE SHOWED THAT LEHMAN BROTHERS HAD IN FACT EARNED PROFITS OUT OF
SHORT-SWING TRANSACTIONS IN TIDE WATER SECURITIES WHILE THOMAS WAS A
DIRECTOR OF THAT COMPANY.  BUT AS TO THE CHARGES OF DEPUTIZATION AND
WRONGFUL USE OF "INSIDE" INFORMATION BY LEHMAN BROTHERS, THE EVIDENCE
WAS IN CONFLICT. 

FIRST, THERE WAS TESTIMONY THAT RESPONDENT THOMAS HAD SUCCEEDED
HERTZ, ANOTHER LEHMAN PARTNER, ON THE BOARD OF TIDE WATER; THAT HERTZ
HAD "JOINED TIDEWATER COMPANY THINKING IT WAS GOING TO BE IN THE
INTERESTS OF LEHMAN BROTHERS"; AND THAT HE HAD SUGGESTED THOMAS AS HIS
SUCCESSOR PARTLY BECAUSE IT WAS IN THE INTEREST OF LEHMAN.  THERE WAS
ALSO TESTIMONY, HOWEVER, THAT THOMAS, ASIDE FROM HAVING MENTIONED FROM
TIME TO TIME TO SOME OF HIS PARTNERS AND OTHER PEOPLE THAT HE THOUGHT
TIDE WATER WAS "AN ATTRACTIVE INVESTMENT" AND UNDER "GOOD" MANAGEMENT,
HAD NEVER DISCUSSED THE OPERATING DETAILS OF TIDE WATER AFFAIRS WITH
ANY MEMBER OF LEHMAN BROTHERS; (FN2) THAT LEHMAN HAD BOUGHT THE TIDE
WATER SECURITIES WITHOUT CONSULTING THOMAS AND WHOLLY ON THE BASIS OF
PUBLIC ANNOUNCEMENTS BY TIDE WATER THAT COMMON SHAREHOLDERS COULD
THEREAFTER CONVERT THEIR SHARES TO A NEW CUMULATIVE PREFERRED ISSUE;
THAT THOMAS DID NOT KNOW OF LEHMAN'S INTENT TO BUY TIDE WATER STOCK
UNTIL AFTER THE INITIAL PURCHASES HAD BEEN MADE; THAT UPON LEARNING
ABOUT THE PURCHASES HE IMMEDIATELY NOTIFIED LEHMAN THAT HE MUST BE
EXCLUDED FROM "ANY RISK OF THE PURCHASE OR ANY PROFIT OR LOSS FROM THE
SUBSEQUENT SALE"; AND THAT THIS DISCLAIMER WAS ACCEPTED BY THE FIRM. 
(FN3) 

FROM THE FOREGOING AND OTHER TESTIMONY THE DISTRICT COURT FOUND THAT
"THERE WAS NO EVIDENCE THAT THE FIRM OF LEHMAN BROTHERS DEPUTED THOMAS
TO REPRESENT ITS INTERESTS AS DIRECTOR ON THE BOARD OF TIDE WATER" AND
THAT THERE HAD BEEN NO ACTUAL USE OF INSIDE INFORMATION, LEHMAN
BROTHERS HAVING BOUGHT ITS TIDE WATER STOCK "SOLELY ON THE BASIS OF
TIDE WATER'S PUBLIC ANNOUNCEMENTS AND WITHOUT CONSULTING THOMAS." 

ON THE BASIS OF THESE FINDINGS THE DISTRICT COURT REFUSED TO RENDER A
JUDGMENT, EITHER AGAINST THE PARTNERSHIP OR AGAINST THOMAS
INDIVIDUALLY, FOR THE $98,686.77 PROFITS WHICH IT DETERMINED THAT
LEHMAN BROTHERS HAD REALIZED, (FN4) HOLDING: 

"THE LAW IS NOW WELL SETTLED THAT THE MERE FACT THAT A PARTNER IN
LEHMAN BROTHERS WAS A DIRECTOR OF TIDE WATER, AT THE TIME THAT LEHMAN
BROTHERS HAD THIS SHORT SWING TRANSACTION IN THE STOCK OF TIDE WATER,
IS NOT SUFFICIENT TO MAKE THE PARTNERSHIP LIABLE FOR THE PROFITS
THEREON, AND THAT THOMAS COULD NOT BE HELD LIABLE FOR THE PROFITS
REALIZED BY THE OTHER PARTNERS FROM THE FIRM'S SHORT SWING
TRANSACTIONS.  RATTNER V. LEHMAN, 2 CIR., 1952, 193 F.2D 564, 565,
567.  THIS PRECISE QUESTION WAS PASSED UPON IN THE RATTNER DECISION." 
173 F. SUPP. 590, 593. 

DESPITE ITS RECOGNITION THAT THOMAS HAD SPECIFICALLY WAIVED HIS SHARE
OF THE TIDE WATER TRANSACTION PROFITS, THE TRIAL COURT NEVERTHELESS
HELD THAT WITHIN THE MEANING OF SEC. 16(B) THOMAS HAD "REALIZED"
$3,893.41, HIS PROPORTIONATE SHARE OF THE PROFITS OF LEHMAN BROTHERS. 
THE COURT CONSEQUENTLY ENTERED JUDGMENT AGAINST THOMAS FOR THAT AMOUNT
BUT REFUSED TO ALLOW INTEREST AGAINST HIM.  ON APPEAL, TAKEN BY BOTH
SIDES, THE COURT OF APPEALS FOR THE SECOND CIRCUIT ADHERED TO THE VIEW
IT HAD TAKEN IN RATTNER V. LEHMAN, 193 F.2D 564, AND AFFIRMED THE
DISTRICT COURT'S JUDGMENT IN ALL RESPECTS, JUDGE CLARK DISSENTING.  286
F.2D 786.  THE SECURITIES AND EXCHANGE COMMISSION THEN SOUGHT LEAVE
FROM THE COURT OF APPEALS EN BANC TO FILE AN AMICUS CURIAE PETITION FOR
REHEARING URGING THE OVERRULING OF THE RATTNER CASE.  THE COMMISSION'S
MOTION WAS DENIED, JUDGES CLARK AND SMITH DISSENTING.  WE GRANTED
CERTIORARI ON THE PETITION OF BLAU, FILED ON BEHALF OF HIMSELF, OTHER
STOCKHOLDERS AND TIDE WATER, AND SUPPORTED BY THE COMMISSION.  366 U.S.
902.  THE QUESTIONS PRESENTED BY THE PETITION ARE WHETHER THE COURTS
BELOW ERRED:  (1) IN REFUSING TO RENDER A JUDGMENT AGAINST THE LEHMAN
PARTNERSHIP FOR THE $98,686.77 PROFITS THEY WERE FOUND TO HAVE
"REALIZED" FROM THEIR "SHORT-SWING" TRANSACTIONS IN TIDE WATER STOCK,
(2) IN REFUSING TO RENDER JUDGMENT AGAINST THOMAS FOR THE FULL
$98,686.77 PROFITS, AND (3) IN REFUSING TO ALLOW INTEREST ON THE
$3,893.41 RECOVERY ALLOWED AGAINST THOMAS.  (FN5) 

PETITIONER APPARENTLY SEEKS TO HAVE US DECIDE THE QUESTIONS PRESENTED
AS THOUGH HE HAD PROVEN THE ALLEGATIONS OF HIS COMPLAINT THAT LEHMAN
BROTHERS ACTUALLY DEPUTIZED THOMAS TO REPRESENT ITS INTERESTS AS A
DIRECTOR OF TIDE WATER, AND THAT IT WAS HIS ADVICE AND COUNSEL BASED ON
HIS SPECIAL AND INSIDE KNOWLEDGE OF TIDE WATER'S AFFAIRS THAT CAUSED
LEHMAN BROTHERS TO BUY AND SELL TIDE WATER'S STOCK.  BUT THE TRIAL
COURT FOUND OTHERWISE AND THE COURT OF APPEALS AFFIRMED THESE
FINDINGS.  INFERENCES COULD PERHAPS HAVE BEEN DRAWN FROM THE EVIDENCE
TO SUPPORT PETITIONER'S CHARGES, BUT EXAMINATION OF THE RECORD MAKES IT
CLEAR TO US THAT THE FINDINGS OF THE TWO COURTS BELOW WERE NOT CLEARLY
ERRONEOUS.  MOREOVER, WE CANNOT AGREE WITH THE COMMISSION THAT THE
COURTS' DETERMINATIONS OF THE DISPUTED FACTUAL ISSUES WERE CONCLUSIONS
OF LAW RATHER THAN FINDINGS OF FACT.  WE MUST THEREFORE DECIDE WHETHER
LEHMAN BROTHERS, THOMAS OR BOTH HAVE AN ABSOLUTE LIABILITY UNDER SEC.
16(B) TO PAY OVER ALL PROFITS MADE ON LEHMAN'S TIDE WATER STOCK
DEALINGS EVEN THOUGH THOMAS WAS NOT SITTING ON TIDE WATER'S BOARD TO
REPRESENT LEHMAN AND EVEN THOUGH THE PROFITS MADE BY THE PARTNERSHIP
WERE ON ITS OWN INITIATIVE, INDEPENDENTLY OF ANY ADVICE OR "INSIDE"
KNOWLEDGE GIVEN IT BY DIRECTOR THOMAS. 

FIRST.  THE LANGUAGE OF SEC. 16 DOES NOT PURPORT TO IMPOSE ITS
EXTRAORDINARY LIABILITY ON ANY "PERSON," "FIDUCIARY" OR NOT, UNLESS HE
OR IT IS A "DIRECTOR," "OFFICER" OR "BENEFICIAL OWNER OF MORE THAN 10
PERCENTUM OF ANY CLASS OF ANY EQUITY SECURITY  ...  WHICH IS REGISTERED
ON A NATIONAL SECURITIES EXCHANGE."  (FN6)  LEHMAN BROTHERS WAS NEITHER
AN OFFICER NOR A 10% STOCKHOLDER OF TIDE WATER, BUT PETITIONER AND THE
COMMISSION CONTEND THAT THE LEHMAN PARTNERSHIP IS OR SHOULD BE TREATED
AS A DIRECTOR UNDER SEC. 16(B). 

(A)  ALTHOUGH ADMITTEDLY NOT "LITERALLY DESIGNATED" AS ONE, IT IS
CONTENDED THAT LEHMAN IS A DIRECTOR.  NO DOUBT LEHMAN BROTHERS, THOUGH
A PARTNERSHIP, COULD FOR PURPOSES OF SEC. 16 BE A "DIRECTOR" OF TIDE
WATER AND FUNCTION THROUGH A DEPUTY, SINCE SEC. 3(A)(9) OF THE ACT
(FN7) PROVIDES THAT "'PERSON' MEANS  ...  PARTNERSHIP" AND SEC. 3(A)(7)
(FN8) THAT "'DIRECTOR' MEANS ANY DIRECTOR OF A CORPORATION OR ANY
PERSON PERFORMING SIMILAR FUNCTIONS WITH RESPECT TO ANY ORGANIZATION,
WHETHER INCORPORATED OR UNINCORPORATED."  CONSEQUENTLY, LEHMAN BROTHERS
WOULD BE A "DIRECTOR" OF TIDE WATER, IF AS PETITIONER'S COMPLAINT
CHARGED LEHMAN ACTUALLY FUNCTIONED AS A DIRECTOR THROUGH THOMAS, WHO
HAD BEEN DEPUTIZED BY LEHMAN TO PERFORM A DIRECTOR'S DUTIES NOT FOR
HIMSELF BUT FOR LEHMAN.  BUT THE FINDINGS OF THE TWO COURTS BELOW,
WHICH WE HAVE ACCEPTED, PRECLUDE SUCH A HOLDING.  IT WAS THOMAS, NOT
LEHMAN BROTHERS AS AN ENTITY, THAT WAS THE DIRECTOR OF TIDE WATER. 

(B)  IT IS NEXT ARGUED THAT THE INTENT OF SEC. 3(A)(9) IN DEFINING
"PERSON" AS INCLUDING A PARTNERSHIP IS TO TREAT A PARTNERSHIP AS AN
INSEPARABLE ENTITY.  (FN9)  BECAUSE THOMAS, ONE MEMBER OF THIS
INSEPARABLE ENTITY, IS AN "INSIDER," (FN10) IT IS CONTENDED THAT THE
WHOLE PARTNERSHIP SHOULD BE CONSIDERED THE "INSIDER."  BUT THE OBVIOUS
INTENT OF SEC. 3(A)(9), AS THE COMMISSION APPARENTLY REALIZES, IS
MERELY TO MAKE IT CLEAR THAT A PARTNERSHIP CAN BE TREATED AS AN ENTITY
UNDER THE STATUTE, NOT THAT IT MUST BE.  THIS AFFORDS NO REASON AT ALL
FOR CONSTRUING THE WORD "DIRECTOR" IN SEC. 16(B) AS THOUGH IT READ
"PARTNERSHIP OF WHICH THE DIRECTOR IS A MEMBER."  AND THE FACT THAT
CONGRESS PROVIDED IN SEC. 3(A)(9) FOR A PARTNERSHIP TO BE TREATED AS AN
ENTITY IN ITS OWN RIGHT LIKEWISE OFFERS NO SUPPORT FOR THE ARGUMENT
THAT CONGRESS WANTED A PARTNERSHIP TO BE SUBJECT TO ALL THE
RESPONSIBILITIES AND FINANCIAL BURDENS OF ITS MEMBERS IN CARRYING ON
THEIR OTHER INDIVIDUAL BUSINESS ACTIVITIES. 

(C)  BOTH THE PETITIONER AND THE COMMISSION CONTEND ON POLICY GROUNDS
THAT THE LEHMAN PARTNERSHIP SHOULD BE HELD LIABLE EVEN THOUGH IT IS
NEITHER A DIRECTOR, OFFICER, NOR A 10% STOCKHOLDER.  CONCEDING THAT
SUCH AN INTERPRETATION IS NOT JUSTIFIED BY THE LITERAL LANGUAGE OF SEC.
16(B) WHICH PLAINLY LIMITS LIABILITY TO DIRECTORS, OFFICERS, AND 10%
STOCKHOLDERS, IT IS ARGUED THAT WE SHOULD EXPAND SEC. 16(B) TO COVER
PARTNERSHIPS OF WHICH A DIRECTOR IS A MEMBER IN ORDER TO CARRY OUT THE
CONGRESSIONALLY DECLARED PURPOSE "OF PREVENTING THE UNFAIR USE OF
INFORMATION WHICH MAY HAVE BEEN OBTAINED BY SUCH BENEFICIAL OWNER,
DIRECTOR, OR OFFICER BY REASON OF HIS RELATIONSHIP TO THE ISSUER ...
."  FAILURE TO DO SO, IT IS ARGUED, WILL LEAVE A LARGE AND UNINTENDED
LOOPHOLE IN THE STATUTE - ONE "SUBSTANTIALLY ELIMINATING THE GREAT WALL
STREET TRADING FIRMS FROM THE STATUTE'S OPERATION."  286 F.2D, AT 799. 
THESE FIRMS IT IS CLAIMED WILL BE ABLE TO EVADE THE ACT AND TAKE
ADVANTAGE OF THE "INSIDE" INFORMATION AVAILABLE TO THEIR MEMBERS AS
INSIDERS OF COUNTLESS CORPORATIONS MERELY BY TRADING "INSIDE"
INFORMATION AMONG THE VARIOUS PARTNERS. 

THE ARGUMENT OF PETITIONER AND THE COMMISSION SEEMS TO GO SO FAR AS
TO SUGGEST THAT SEC. 16(B)'S FORFEITURE OF PROFITS SHOULD BE EXTENDED
TO INCLUDE ALL PERSONS REALIZING "SHORT SWING" PROFITS WHO EITHER ACT
ON THE BASIS OF "INSIDE" INFORMATION OR HAVE THE POSSIBILITY OF
"INSIDE" INFORMATION.  ONE MAY AGREE THAT PETITIONER AND THE COMMISSION
PRESENT PERSUASIVE POLICY ARGUMENTS THAT THE ACT SHOULD BE BROADENED IN
THIS WAY TO PREVENT "THE UNFAIR USE OF INFORMATION" MORE EFFECTIVELY
THAN CAN BE ACCOMPLISHED BY LEAVING THE ACT SO AS TO REQUIRE FORFEITURE
OF PROFITS ONLY BY THOSE SPECIFICALLY DESIGNATED BY CONGRESS TO SUFFER
THOSE LOSSES.  (FN11)  BUT THIS VERY BROADENING OF THE CATEGORIES OF
PERSONS ON WHOM THESE LIABILITIES ARE IMPOSED BY THE LANGUAGE OF SEC.
16(B) WAS CONSIDERED AND REJECTED BY CONGRESS WHEN IT PASSED THE ACT. 
DRAFTS OF PROVISIONS THAT EVENTUALLY BECAME SEC. 16(B) NOT ONLY WOULD
HAVE MADE IT UNLAWFUL FOR ANY DIRECTOR, OFFICER OR 10% STOCKHOLDER TO
DISCLOSE ANY CONFIDENTIAL INFORMATION REGARDING REGISTERED SECURITIES,
BUT ALSO WOULD HAVE MADE ALL PROFITS RECEIVED BY ANYONE, "INSIDER" OR
NOT, "TO WHOM SUCH UNLAWFUL DISCLOSURE" HAD BEEN MADE RECOVERABLE BY
THE COMPANY.  (FN12) 

NOT ONLY DID CONGRESS REFUSE TO GIVE SEC. 16(B) THE CONTENT WE ARE
NOW URGED TO PUT INTO IT BY INTERPRETATION, BUT WITH KNOWLEDGE THAT IN
1952 THE SECOND CIRCUIT COURT OF APPEALS REFUSED, IN THE RATTNER CASE,
TO APPLY SEC. 16(B) TO LEHMAN BROTHERS IN CIRCUMSTANCES SUBSTANTIALLY
LIKE THOSE HERE, CONGRESS HAS LEFT THE ACT AS IT WAS.  (FN13)  AND SO
FAR AS THE RECORD SHOWS THIS INTERPRETATION OF SEC. 16(B) WAS THE VIEW
OF THE COMMISSION UNTIL IT INTERVENED LAST YEAR IN THIS CASE.  INDEED
IN THE RATTNER CASE THE COURT OF APPEALS RELIED IN PART ON COMMISSION
RULE X-16A-3(B) WHICH REQUIRED INSIDER-PARTNERS TO REPORT ONLY THE
AMOUNT OF THEIR OWN HOLDINGS AND NOT THE AMOUNT OF HOLDINGS BY THE
PARTNERSHIP.  WHILE THE COMMISSION HAS SINCE CHANGED THIS RULE TO
REQUIRE DISCLOSURE OF PARTNERSHIP HOLDINGS TOO, ITS OFFICIAL RELEASE
EXPLAINING THE CHANGE STATED THAT THE NEW RULE WAS "NOT INTENDED AS A
MODIFICATION OF THE PRINCIPLES GOVERNING LIABILITY FOR SHORT-SWING
TRANSACTIONS UNDER SECTION 16(B) AS SET FORTH IN THE CASE OF RATTNER V.
LEHMAN  ...  ."  (FN14)  CONGRESS CAN AND MIGHT AMEND SEC. 16(B) IF THE
COMMISSION WOULD PRESENT TO IT THE POLICY ARGUMENTS IT HAS PRESENTED TO
US, BUT WE THINK THAT CONGRESS IS THE PROPER AGENCY TO CHANGE AN
INTERPRETATION OF THE ACT UNBROKEN SINCE ITS PASSAGE, IF THE CHANGE IS
TO BE MADE.    SECOND.  THE PETITIONER AND THE COMMISSION CONTEND THAT
THOMAS SHOULD BE REQUIRED INDIVIDUALLY TO PAY TO TIDE WATER THE ENTIRE
$98,686.77 PROFIT LEHMAN BROTHERS REALIZED ON THE GROUND THAT UNDER
PARTNERSHIP LAW HE IS CO-OWNER OF THE ENTIRE UNDIVIDED AMOUNT AND HAS
THEREFORE "REALIZED" IT ALL.  "ONLY BY HOLDING THE PARTNER-DIRECTOR
LIABLE FOR THE ENTIRE SHORT-SWING PROFITS REALIZED BY HIS FIRM," IT IS
URGED, CAN "AN EFFECTIVE PROPHYLACTIC TO THE STATED STATUTORY POLICY
...  BE FULLY ENFORCED."  BUT LIABILITY UNDER SEC. 16(B) IS TO BE
DETERMINED NEITHER BY GENERAL PARTNERSHIP LAW NOR BY ADDING TO THE
"PROPHYLACTIC" EFFECT CONGRESS ITSELF CLEARLY PRESCRIBED IN SEC.
16(B).  THAT SECTION LEAVES NO ROOM FOR JUDICIAL DOUBT THAT A DIRECTOR
IS TO PAY TO HIS COMPANY ONLY "ANY PROFIT REALIZED BY HIM" FROM SHORT
SWING TRANSACTIONS.  IT WOULD BE NOTHING BUT A FICTION TO SAY THAT
THOMAS "REALIZED" ALL THE PROFITS EARNED BY THE PARTNERSHIP OF WHICH HE
WAS A MEMBER.  IT WAS NOT ERROR TO REFUSE TO HOLD THOMAS LIABLE FOR
PROFITS HE DID NOT MAKE. 

THIRD.  IT IS CONTENDED THAT BOTH COURTS BELOW ERRED IN FAILING TO
ALLOW INTEREST ON THE RECOVERY OF THOMAS' SHARE OF THE PARTNERSHIP
PROFITS.  SECTION 16(B) SAYS NOTHING ABOUT INTEREST ONE WAY OR THE
OTHER.  THIS COURT HAS SAID IN A KINDRED SITUATION THAT "INTEREST IS
NOT RECOVERED ACCORDING TO A RIGID THEORY OF COMPENSATION FOR MONEY
WITHHELD, BUT IS GIVEN IN RESPONSE TO CONSIDERATIONS OF FAIRNESS.  IT
IS DENIED WHEN ITS EXACTION WOULD BE INEQUITABLE."  BOARD OF
COMMISSIONERS V. UNITED STATES, 308 U.S. 343, 352.  BOTH COURTS BELOW
DENIED INTEREST HERE AND WE CANNOT SAY THAT THE DENIAL WAS EITHER SO
UNFAIR OR SO INEQUITABLE AS TO REQUIRE US TO UPSET IT.  AFFIRMED. 

FN1  "FOR THE PURPOSE OF PREVENTING THE UNFAIR USE OF INFORMATION
WHICH MAY HAVE BEEN OBTAINED BY SUCH BENEFICIAL OWNER, DIRECTOR, OR
OFFICER BY REASON OF HIS RELATIONSHIP TO THE ISSUER, ANY PROFIT
REALIZED BY HIM FROM ANY PURCHASE AND SALE, OR ANY SALE AND PURCHASE,
OF ANY EQUITY SECURITY OF SUCH ISSUER (OTHER THAN AN EXEMPTED SECURITY)
WITHIN ANY PERIOD OF LESS THAN SIX MONTHS, UNLESS SUCH SECURITY WAS
ACQUIRED IN GOOD FAITH IN CONNECTION WITH A DEBT PREVIOUSLY CONTRACTED,
SHALL INURE TO AND BE RECOVERABLE BY THE ISSUER, IRRESPECTIVE OF ANY
INTENTION ON THE PART OF SUCH BENEFICIAL OWNER, DIRECTOR, OR OFFICER IN
ENTERING INTO SUCH TRANSACTION OF HOLDING THE SECURITY PURCHASED OR OF
NOT REPURCHASING THE SECURITY SOLD FOR A PERIOD EXCEEDING SIX MONTHS. 
SUIT TO RECOVER SUCH PROFIT MAY BE INSTITUTED AT LAW OR IN EQUITY IN
ANY COURT OF COMPETENT JURISDICTION BY THE ISSUER, OR BY THE OWNER OF
ANY SECURITY OF THE ISSUER IN THE NAME AND IN BEHALF OF THE ISSUER IF
THE ISSUER SHALL FAIL OR REFUSE TO BRING SUCH SUIT WITHIN SIXTY DAYS
AFTER REQUEST OR SHALL FAIL DILIGENTLY TO PROSECUTE THE SAME
THEREAFTER; BUT NO SUCH SUIT SHALL BE BROUGHT MORE THAN TWO YEARS AFTER
THE DATE SUCH PROFIT WAS REALIZED.  THIS SUBSECTION SHALL NOT BE
CONSTRUED TO COVER ANY TRANSACTION WHERE SUCH BENEFICIAL OWNER WAS NOT
SUCH BOTH AT THE TIME OF THE PURCHASE AND SALE, OR THE SALE AND
PURCHASE, OF THE SECURITY INVOLVED, OR ANY TRANSACTION OR TRANSACTIONS
WHICH THE COMMISSION BY RULES AND REGULATIONS MAY EXEMPT AS NOT
COMPREHENDED WITHIN THE PURPOSE OF THIS SUBSECTION."  48 STAT. 896, 15
U.S.C. SEC. 78PB). 

FN2  IN 1956, AFTER THE PURCHASE AND SALE IN QUESTION, LEHMAN
BROTHERS PARTICIPATED IN THE UNDERWRITING OF SOME TIDE WATER BONDS. 
THOMAS HANDLED THIS FOR LEHMAN AND DURING THE COURSE OF THE MATTER
DISCUSSED TIDE WATER AFFAIRS WITH THE OTHER MEMBERS OF LEHMAN. 

FN3  IN COMPLIANCE WITH SEC. 16(A) AND THE RULES AND FORMS
THEREUNDER, SEE NOTE 14, INFRA, THOMAS FILED WITH THE SEC REPORTS OF
THE LEHMAN TRANSACTIONS IN TIDE WATER STOCK AND HIS DISCLAIMER OF THOSE
TRANSACTIONS. 

FN4  IN BOTH COURTS BELOW DEFENDANTS CLAIMED THAT LEHMAN'S PROFITS
SHOULD HAVE BEEN FOUND TO BE MUCH LESS THAN THEY WERE.  SINCE THE
DETERMINATION BELOW HAS NOT BEEN COMPLAINED OF HERE, IT IS NOT
NECESSARY TO PASS ON THOSE CONTENTIONS. 

FN5  IN THE TWO COURTS BELOW IT WAS CONTENDED BOTH THAT THOMAS,
BECAUSE OF HIS DISCLAIMER OF ALL PARTICIPATION IN THESE PARTNERSHIP
TRANSACTIONS, HAD REALIZED NO PROFITS AT ALL, AND ALSO THAT, EVEN IF HE
DID REALIZE SOME PROFITS THE AMOUNT WAS LESS THAN THAT FOUND.  SEE THE
OPINION OF JUDGE SWAN DISSENTING IN PART BELOW.  286 F.2D, AT 793.  WE
EXPRESS NO VIEW ON THESE QUESTIONS SINCE THE THOMAS JUDGMENT IS NOT
CHALLENGED HERE. 

FN6  SEE SEC. 16(A), 48 STAT. 896, 15 U.S.C. SEC. 78PA). 

FN7  48 STAT. 883, 15 U.S.C. SEC. 78CA)(9). 

FN8  48 STAT. 883, 15 U.S.C. SEC. 78CA)(7). 

FN9  THE COMMISSION'S BRIEF SAYS:  "THEREFORE, WHEN A MEMBER OF A
PARTNERSHIP HOLDS A DIRECTORSHIP WITH THE KNOWLEDGE AND CONSENT OF HIS
FIRM, IT IS ENTIRELY REASONABLE TO CONSIDER THE PARTNERSHIP AS THE
'DIRECTOR' FOR THE PURPOSES OF SECTION 16(B)." 

FN10  AN "INSIDER" FOR PURPOSES OF SEC. 16 IS AN OFFICER, DIRECTOR OR
10% STOCKHOLDER.  SEE COOK AND FELDMAN, INSIDER TRADING UNDER THE
SECURITIES EXCHANGE ACT, 66 HARV. L. REV. 385, 399-404. 

FN11  MOSSER V. DARROW, 341 U.S. 267, AND LEHMAN V. CIVIL AERONAUTICS
BOARD, 93 U.S. APP. D.C. 81, 209 F.2D 289, CITED BY THE COMMISSION AS
COMPARABLE SITUATIONS THROW LITTLE IF ANY LIGHT ON THE ISSUES IN THIS
CASE.  THOSE CASES INVOLVED DIFFERENT FACTS AND DIFFERENT STATUTES,
STATUTES WHICH THEMSELVES HAVE DIFFERENT LANGUAGE, PURPOSE AND HISTORY
FROM THE STATUTE HERE. 

FN12  THUS, SEC. 15(B) OF BOTH H.R. 7852, AND S. 2693, 73D CONG., 2D
SESS. PROVIDED: 

"(B)  IT SHALL BE UNLAWFUL FOR ANY DIRECTOR, OFFICER, OR OWNER OF
SECURITIES, OWNING AS OF RECORD AND/OR BENEFICIALLY MORE THAN 5 PER
CENTUM OF ANY CLASS OF STOCK OF ANY ISSUER, AND SECURITY OF WHICH IS
REGISTERED ON A NATIONAL SECURITIES EXCHANGE  ...  (3) TO DISCLOSE,
DIRECTLY OR INDIRECTLY, ANY CONFIDENTIAL INFORMATION REGARDING OR
AFFECTING ANY SUCH REGISTERED SECURITY NOT NECESSARY OR PROPER TO BE
DISCLOSED AS A PART OF HIS CORPORATE DUTIES.  ANY PROFIT MADE BY ANY
PERSON, TO WHOM SUCH UNLAWFUL DISCLOSURE SHALL HAVE BEEN MADE, IN
RESPECT OF ANY TRANSACTION OR TRANSACTIONS IN SUCH REGISTERED SECURITY
WITHIN A PERIOD NOT EXCEEDING SIX MONTHS AFTER SUCH DISCLOSURE SHALL
INURE TO AND BE RECOVERABLE BY THE ISSUER UNLESS SUCH PERSON SHALL HAVE
HAD NO REASONABLE GROUND TO BELIEVE THAT THE DISCLOSURE WAS
CONFIDENTIAL OR WAS MADE NOT IN THE PERFORMANCE OF CORPORATE DUTIES
...  ." 

AS TO THE MEANING ASCRIBED TO THIS PROVISION, SEE HEARINGS BEFORE THE
COMMITTEE ON BANKING AND CURRENCY ON S. RES. NO. 84, 72D CONG., 2D
SESS., AND S. RES. NOS. 56 AND 97, 73D CONG., 1ST AND 2D SESS. 6555,
6558, 6560-6561; HEARINGS BEFORE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.R. 7852 AND H.R. 8720, 73D CONG., 2D SESS. 135-137. 
THESE HEARINGS SEEM TO INDICATE THAT THE PROVISION WAS OMITTED FROM THE
FINAL ACT BECAUSE OF ANTICIPATED PROBLEMS OF ADMINISTRATION.  SEE ALSO
SMOLOWE V. DELENDO CORP., 136 F.2D 231, 236; RATTNER V. LEHMAN, 193
F.2D 564. 

FN13  SEE SEVENTEENTH ANNUAL REPORT OF THE SECURITIES AND EXCHANGE
COMMISSION, P. 62 (1952); EIGHTEENTH ANNUAL REPORT, P. 79 (1953). 
THESE REPORTS WERE SUBMITTED TO CONGRESS. 

FN14  SECURITIES AND EXCHANGE COMMISSION RELEASE NO. 4754 (SEPTEMBER
24, 1952).  RULE X-16A-3 WAS AGAIN AMENDED, EFFECTIVE MARCH 9, 1961, TO
DELETE ANY REQUIREMENTS THAT A PARTNER REPORT THE AMOUNT OF THE
ISSUER'S SECURITIES HELD BY THE PARTNERSHIP BUT THE SUBSTANCE OF THE
RULE IS STILL CONTAINED IN THE COMMISSION'S INSTRUCTIONS TO ITS FORMS 3
AND 4 WHICH ARE USED FOR MAKING THE REPORTS REQUIRED UNDER SEC. 16(A). 

MR. JUSTICE STEWART TOOK NO PART IN THE DISPOSITION OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

WHAT THE COURT DOES TODAY IS SUBSTANTIALLY TO ELIMINATE "THE GREAT
WALL STREET TRADING FIRMS" FROM THE OPERATION OF SEC. 16(B), AS JUDGE
CLARK STATED IN HIS DISSENT IN THE COURT OF APPEALS.  286 F.2D 786,
799.  THIS RESULT FOLLOWS BECAUSE OF THE WIDE DISPERSION OF PARTNERS OF
INVESTMENT BANKING FIRMS AMONG OUR MAJOR CORPORATIONS.  LEHMAN BROS.
HAS PARTNERS ON 100 BOARDS.  UNDER TODAY'S RULING THAT FIRM CAN MAKE A
RICH HARVEST ON THE "INSIDE INFORMATION" WHICH SEC. 16 OF THE ACT
COVERS BECAUSE EACH PARTNER NEED ACCOUNT ONLY FOR HIS DISTRIBUTIVE
SHARE OF THE FIRM'S PROFITS ON "INSIDE INFORMATION," THE OTHER PARTNERS
KEEPING THE BALANCE.  THIS IS A MUTILATION OF THE ACT. 

IF A PARTNERSHIP CAN BE A "DIRECTOR" WITHIN THE MEANING OF SEC.
16(A), THEN "ANY PROFIT REALIZED BY HIM," AS THOSE WORDS ARE USED IN
SEC. 16(B), INCLUDES ALL THE PROFITS, NOT MERELY A PORTION OF THEM,
WHICH THE PARTNERSHIP REALIZED ON THE "INSIDE INFORMATION."  THERE IS
NO BASIS IN REASON FOR SAYING A PARTNERSHIP CANNOT BE A "DIRECTOR" FOR
PURPOSES OF THE ACT.  IN RATTNER V. LEHMAN, 193 F.2D 564, 567, (FN1)
JUDGE LEARNED HAND SAID HE WAS "NOT PREPARED TO SAY" THAT A PARTNERSHIP
COULD NOT BE CONSIDERED A "DIRECTOR," ADDING "FOR SOME PURPOSES THE
COMMON LAW DOES TREAT A FIRM AS A JURAL PERSON."  IN HIS VIEW A
PARTNERSHIP MIGHT BE A "DIRECTOR" WITHIN THE MEANING OF SEC. 16 IF IT
"DEPUTED A PARTNER" TO REPRESENT ITS INTERESTS.  YET FORMAL DESIGNATION
IS NO MORE SIGNIFICANT THAN INFORMAL APPROVAL.  EVERYONE KNOWS THAT THE
INVESTMENT BANKING-CORPORATION ALLIANCES ARE CONSCIOUSLY CONSTRUCTED SO
AS TO INCREASE THE PROFITS OF THE BANKERS.  IN PARTNERSHIP LAW A DEBATE
HAS LONG RAGED OVER WHETHER A PARTNERSHIP IS AN ENTITY OR AN
AGGREGATE.  PURSUIT OF THAT WILL-O'-THE-WISP IS NOT PROFITABLE.  FOR
EVEN NEW YORK WITH ITS AGGREGATE THEORY RECOGNIZES THAT A PARTNERSHIP
IS OR MAY BE CONSIDERED AN ENTITY FOR SOME PURPOSES.  (FN2)  IT IS
EASIER TO MAKE THIS PARTNERSHIP A "DIRECTOR" FOR PURPOSES OF SEC. 16
THAN TO HOLD THE OPPOSITE.  SECTION 16(A) SPEAKS OF EVERY "PERSON" WHO
IS A "DIRECTOR."  IN SEC. 3(A)(9) "PERSON" IS DEFINED TO INCLUDE, INTER
ALIA, "A PARTNERSHIP."  (FN3)  THUS, THE PURPOSE TO SUBJECT A
PARTNERSHIP TO THE PROVISIONS OF SEC. 16 NEED NOT TURN ON A STRAINED
READING OF THAT SECTION. 

AT THE ROOT OF THE PRESENT PROBLEM ARE THE SCOPE AND DEGREE OF
LIABILITY ARISING OUT OF FIDUCIARY RELATIONS.  IN MODERN TIMES THAT
LIABILITY HAS BEEN STRICTLY CONSTRUED.  THE NEW YORK COURT OF APPEALS,
SPEAKING THROUGH CHIEF JUDGE CARDOZO IN MEINHARD V. SALMON, 249 N.Y.
458, 164 N.E. 545, HELD A JOINT ADVENTURER TO A HIGHER STANDARD THAN WE
INSIST UPON TODAY: 

"MANY FORMS OF CONDUCT PERMISSIBLE IN A WORKADAY WORLD FOR THOSE
ACTING AT ARM'S LENGTH, ARE FORBIDDEN TO THOSE BOUND BY FIDUCIARY
TIES.  A TRUSTEE IS HELD TO SOMETHING STRICTER THAN THE MORALS OF THE
MARKET PLACE.  NOT HONESTY ALONE, BUT THE PUNCTILIO OF AN HONOR THE
MOST SENSITIVE, IS THEN THE STANDARD OF BEHAVIOR.  AS TO THIS THERE HAS
DEVELOPED A TRADITION THAT IS UNBENDING AND INVETERATE.  UNCOMPROMISING
RIGIDITY HAS BEEN THE ATTITUDE OF COURTS OF EQUITY WHEN PETITIONED TO
UNDERMINE THE RULE OF UNDIVIDED LOYALTY BY THE 'DISINTEGRATING EROSION'
OF PARTICULAR EXCEPTIONS (WENDT V. FISCHER, 243 N.Y. 439, 444).  ONLY
THUS HAS THE LEVEL OF CONDUCT FOR FIDUCIARIES BEEN KEPT AT A LEVEL
HIGHER THAN THAT TRODDEN BY THE CROWD.  IT WILL NOT CONSCIOUSLY BE
LOWERED BY ANY JUDGMENT OF THIS COURT."  249 N.Y., AT 464, 164 N.E., AT
546. 

IN MOSSER V. DARROW, 341 U.S. 267, WE ALLOWED A REORGANIZATION
TRUSTEE TO BE SURCHARGED $43,447.46 FOR PROFITS MADE BY HIS EMPLOYEES
THROUGH TRADING IN SECURITIES OF SUBSIDIARIES OF A BANKRUPT COMPANY. 
WE MADE THIS RULING EVEN THOUGH THERE WAS "NO HINT OR PROOF THAT HE HAS
BEEN CORRUPT OR THAT HE HAS ANY INTEREST, PRESENT OR FUTURE, IN THE
PROFITS HE HAS PERMITTED THESE EMPLOYEES TO MAKE."  ID., AT 275.  WE
SAID: 

"THESE STRICT PROHIBITIONS WOULD SERVE LITTLE PURPOSE IF THE TRUSTEE
WERE FREE TO AUTHORIZE OTHERS TO DO WHAT HE IS FORBIDDEN.  WHILE THERE
IS NO CHARGE OF IT HERE, IT IS OBVIOUS THAT THIS WOULD OPEN UP
OPPORTUNITIES FOR DEVIOUS DEALINGS IN THE NAME OF OTHERS THAT THE
TRUSTEE COULD NOT CONDUCT IN HIS OWN.  THE MOTIVES OF MAN ARE TOO
COMPLEX FOR EQUITY TO SEPARATE IN THE CASE OF ITS TRUSTEES THE MOTIVE
OF ACQUIRING EFFICIENT HELP FROM MOTIVES OF FAVORING HELP, FOR ANY
REASON AT ALL OR FROM ANTICIPATION OF COUNTERFAVORS LATER TO COME.  WE
THINK THAT WHICH THE TRUSTEE HAD NO RIGHT TO DO HE HAD NO RIGHT TO
AUTHORIZE, AND THAT THE TRANSACTIONS WERE AS FORBIDDEN FOR BENEFIT OF
OTHERS AS THEY WOULD HAVE BEEN ON BEHALF OF THE TRUSTEE HIMSELF. 

     *         *         *   *         * 

"  ...  EQUITY HAS SOUGHT TO LIMIT DIFFICULT AND DELICATE FACT
FINDING TASKS CONCERNING ITS OWN TRUSTEE BY PRECLUDING SUCH
TRANSACTIONS FOR THE REASON THAT THEIR EFFECT IS OFTEN DIFFICULT TO
TRACE, AND THE PROHIBITION IS NOT MERELY AGAINST INJURING THE ESTATE -
IT IS AGAINST PROFITING OUT OF THE POSITION OF TRUST.  THAT THIS HAS
OCCURRED, SO FAR AS THE EMPLOYEES ARE CONCERNED, IS UNDENIED."  ID., AT
271-273. 

IT IS SAID THAT THE FAILURE OF CONGRESS TO TAKE ACTION TO REMEDY THE
CONSEQUENCES OF THE RATTNER CASE SOMEHOW OR OTHER SHOWS A PURPOSE ON
THE PART OF CONGRESS TO INFUSE SEC. 16 WITH THE MEANING THAT RATTNER
GAVE IT.  WE TOOK THAT COURSE IN TOOLSON V. NEW YORK YANKEES, 346 U.S.
356, AND ADHERED TO A RULING THE COURT MADE IN 1922 THAT BASEBALL WAS
NOT WITHIN THE SCOPE OF THE ANTITRUST LAWS, BECAUSE THE BUSINESS HAD
BEEN "LEFT FOR THIRTY YEARS TO DEVELOP, ON THE UNDERSTANDING THAT IT
WAS NOT SUBJECT TO" THOSE LAWS.  ID., P. 357.  EVEN THEN WE HAD QUALMS
AND TWO JUSTICES DISSENTED.  FOR WHAT WE SAID IN GIROUARD V. UNITED
STATES, 328 U.S. 61, 69, REPRESENTS OUR USUAL ATTITUDE:  "IT IS AT BEST
TREACHEROUS TO FIND IN CONGRESSIONAL SILENCE ALONE THE ADOPTION OF A
CONTROLLING RULE OF LAW."  (FN4)  IT IS IRONIC TO APPLY THE TOOLSON
PRINCIPLE HERE AND THUS SANCTION, AS VESTED, A PRACTICE SO NOTORIOUSLY
UNETHICAL AS PROFITING ON INSIDE INFORMATION.    WE FORGET MUCH HISTORY
WHEN WE GIVE SEC. 16 A STRICT AND NARROW CONTRUCTION.  BRANDEIS IN
OTHER PEOPLE'S MONEY SPOKE OF THE OFFICE OF "DIRECTOR" AS "A HAPPY
HUNTING GROUND" FOR INVESTMENT BANKERS.   HE SAID THAT "THE GOOSE THAT
LAYS GOLDEN EGGS HAS BEEN CONSIDERED A MOST VALUABLE POSSESSION.  BUT
EVEN MORE PROFITABLE IS THE PRIVILEGE OF TAKING THE GOLDEN EGGS LAID BY
SOMEBODY ELSE'S GOOSE.  THE INVESTMENT BANKERS AND THEIR ASSOCIATES NOW
ENJOY THAT PRIVILEGE."  ID., AT 12. 

THE HEARINGS THAT LED TO THE SECURITIES EXCHANGE ACT OF 1934 ARE
REPLATE WITH EPISODES SHOWING HOW INSIDERS EXPLOITED FOR THEIR PERSONAL
GAIN "INSIDE INFORMATION" WHICH CAME TO THEM AS FIDUCIARIES AND WAS
THEREFORE AN ASSET OF THE ENTIRE BODY OF SECURITY HOLDERS.  THE SENATE
REPORT LABELED THOSE PRACTICES AS "PREDATORY OPERATIONS."  S. REP. NO.
1455, 73D CONG., 2D SESS., P. 68.  IT SAID: 

"AMONG THE MOST VICIOUS PRACTICES UNEARTHED AT THE HEARINGS BEFORE
THE SUBCOMMITTEE WAS THE FLAGRANT BETRAYAL OF THEIR FIDUCIARY DUTIES BY
DIRECTORS AND OFFICERS OF CORPORATIONS WHO USED THEIR POSITIONS OF
TRUST AND THE CONFIDENTIAL INFORMATION WHICH CAME TO THEM IN SUCH
POSITIONS, TO AID THEM IN THEIR MARKET ACTIVITIES.  CLOSELY ALLIED TO
THIS TYPE OF ABUSE WAS THE UNSCRUPULOUS EMPLOYMENT OF INSIDE
INFORMATION BY LARGE STOCKHOLDERS WHO, WHILE NOT DIRECTORS AND
OFFICERS, EXERCISED SUFFICIENT CONTROL OVER THE DESTINIES OF THEIR
COMPANIES TO ENABLE THEM TO ACQUIRE AND PROFIT BY INFORMATION NOT
AVAILABLE TO OTHERS."  ID., AT 55.  SEE ALSO S. REP. NO. 792, 73D
CONG., 2D SESS., P. 9. 

THE THEORY EMBODIED IN SEC. 16 WAS THE ONE BRANDEIS ESPOUSED.  IT WAS
STATED BY SAM RAYBURN AS FOLLOWS:  "MEN CHARGED WITH THE ADMINISTRATION
OF OTHER PEOPLE'S MONEY MUST NOT USE INSIDE INFORMATION FOR THEIR OWN
ADVANTAGE."  H.R. REP. NO. 1383, 73D CONG., 2D SESS. 13. 

WHAT WE DO TODAY ALLOWS ALL BUT ONE PARTNER TO SHARE IN THE FEAST
WHICH THE ONE PLACES ON THE PARTNERSHIP TABLE.  THEY IN TURN CAN OFFER
FEASTS TO HIM IN THE 99 OTHER COMPANIES OF WHICH THEY ARE DIRECTORS. 
(FN5)  14 STAN.  L. REV. 192, 198.  THIS RESULT IS A DILUTION OF THE
FIDUCIARY PRINCIPLE THAT CONGRESS WROTE INTO SEC. 16 OF THE ACT.  IT
IS, WITH ALL RESPECT, A DILUTION THAT IS POSSIBLE ONLY BY A STRAINED
READING OF THE LAW.  UNTIL NOW, THE COURTS HAVE GIVEN THIS FIDUCIARY
PRINCIPLE A CORDIAL RECEPTION.  WE SHOULD NOT LEAVE TO CONGRESS THE
TASK OF RESTORING THE EDIFICE THAT IT ERECTED AND THAT WE TEAR DOWN. 

FN1  THE RATTNER DECISION WAS RENDERED AT A TIME WHEN THE SECURITIES
AND EXCHANGE COMMISSION, PURSUANT TO ITS REGULATORY POWER, PROVIDED A
REPORTING REQUIREMENT FOR SEC. 16(A) WHICH ALLOWED A PARTNER-DIRECTOR
TO DISCLOSE ONLY THAT AMOUNT OF THE EQUITY SECURITIES OF THE
CORPORATION IN QUESTION HELD BY HIS PARTNERSHIP AND REPRESENTING HIS
PROPORTIONATE INTEREST IN THE PARTNERSHIP.  RULE X-16A-3.  AFTER THE
RATTNER DECISION THAT RULE WAS AMENDED TO READ: 

"A PARTNER WHO IS REQUIRED UNDER SEC. 240.16A-1 TO REPORT IN RESPECT
OF ANY EQUITY SECURITY OWNED BY THE PARTNERSHIP SHALL INCLUDE IN HIS
REPORT THE ENTIRE AMOUNT OF SUCH EQUITY SECURITY OWNED BY THE
PARTNERSHIP.  HE MAY, IF HE SO ELECTS, DISCLOSE THE EXTENT OF HIS
INTEREST IN THE PARTNERSHIP AND THE PARTNERSHIP TRANSACTIONS."  17 CFR,
1961 CUM. SUPP., SEC. 240.16A-3(B).  SEE LOSS, SECURITIES REGULATION,
VOL. 2, PP. 2201-1104 (1961). 

FN2  MATTER OF SCHWARTZMAN, 262 APP. DIV. 635, 636-637, 30 N.Y.S.2D
882, 884, AFF'D 288 N.Y. 568, 42 N.E.2D 22, HOLDING A PARTNERSHIP TO BE
A LEGAL ENTITY FOR PURPOSES OF THE UNEMPLOYMENT INSURANCE LAW;
MENDELSOHN V. EQUITABLE LIFE ASSURANCE SOC., 178 MISC. 152, 154, 33
N.Y.S.2D 733, 735, HOLDING "ATTORNEYS AS PARTNERS ARE BUT ONE PERSON"
FOR PURPOSES OF THE RULES OF CIVIL PRACTICE; TRAVELERS IND. CO. V.
UNGER, 4 MISC. 2D 955, 959, 158 N.Y.S.2D 892, 896, HOLDING A
PARTNERSHIP "IS TO BE REGARDED AS A LEGAL ENTITY FOR THE PURPOSES OF
PLEADING."  AND SEE BERNARD V. RATNER, 7 N.Y.S.2D 717. 

FN3  IN UNITED STATES V. A&P TRUCKING CO., 358 U.S. 121 - A CASE FAR
MORE SEVERE IN ITS IMPACT THAN THE RESULT I URGE HERE, AS IT HELD A
PARTNERSHIP COULD BE CRIMINALLY LIABLE UNDER THE MOTOR CARRIER ACT -
THE COURT SAID, "CONGRESS HAS SPECIFICALLY INCLUDED PARTNERSHIPS WITHIN
THE DEFINITION OF 'PERSON' IN A LARGE NUMBER OF REGULATORY ACTS, THUS
SHOWING ITS INTENT TO TREAT PARTNERSHIPS AS ENTITIES."  ID., P. 124,
NOTE 3. 

FN4  WE SAID IN TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118, 140
141: 

"IT IS INDULGING IN THE MEREST FICTION TO SUGGEST THAT THE DOCTRINE
WHICH FOR THE FIRST TIME WE ARE ASKED TO PRONOUNCE WITH OUR EYES OPEN
AND IN THE LIGHT OF FULL CONSIDERATION, WAS SO OBVIOUSLY AND FIRMLY
PART OF THE TEXTURE OF OUR LAW THAT CONGRESS IN EFFECT ENACTED IT
THROUGH ITS SILENCE.  THERE IS NO OCCASION HERE TO REGARD THE SILENCE
OF CONGRESS AS MORE COMMANDING THAN ITS OWN PLAINLY AND UNMISTAKABLY
SPOKEN WORDS.  THIS IS NOT A SITUATION WHERE CONGRESS HAS FAILED TO ACT
AFTER HAVING BEEN REQUESTED TO ACT OR WHERE THE CIRCUMSTANCES ARE SUCH
THAT CONGRESS WOULD ORDINARILY BE EXPECTED TO ACT.  THE PROVISIONS OF
SEC. 265 HAVE NEVER BEEN THE SUBJECT OF COMPREHENSIVE LEGISLATIVE
REEXAMINATION.  EVEN THE EXCEPTIONS REFERABLE TO LEGISLATION HAVE BEEN
INCIDENTAL FEATURES OF OTHER STATUTORY SCHEMES, SUCH AS THE REMOVAL AND
INTERPLEADER ACTS.  THE EXPLICIT AND COMPREHENSIVE POLICY OF THE ACT OF
1793 HAS BEEN LEFT INTACT.  TO FIND SIGNIFICANCE IN CONGRESSIONAL
NONACTION UNDER THESE CIRCUMSTANCES IS TO FIND SIGNIFICANCE WHERE THERE
IS NONE." 

FN5  THE PROPER APPROACH TO THE PROBLEM OF INTERLOCKING DIRECTORATES
THROUGH THE AGENCY OF AN INVESTMENT BANKING HOUSE WAS EXPRESSED BY
JUDGE FAHY IN LEHMAN V. CIVIL AERONAUTICS BOARD, 93 U.S. APP. D.C. 81,
209 F.2D 289, A CASE INVOLVING THIS SAME FIRM.  SEE APPENDIX TO THIS
OPINION. 

                             APPENDIX TO OPINION OF

                              MR. JUSTICE DOUGLAS. 

LEHMAN V. CIVIL AERONAUTICS BOARD, SUPRA, 93 U.S. APP. D.C., AT 85
87, 209 F.2D, AT 292-294. 

"PETITIONER LEHMAN IS A DIRECTOR OF PAN AMERICAN; PETITIONER JOSEPH
A. THOMAS IS A DIRECTOR OF NATIONAL AIRLINES, INC., AND OF AMERICAN
EXPORT LINES, INC.; PETITIONER FREDERICK L. EHRMAN IS A DIRECTOR OF
CONTINENTAL AIR LINES, INC., AND MR. JOHN D. HERTZ IS A DIRECTOR OF
CONSOLIDATED VULTEE AIRCRAFT CORPORATION.  ALL THE COMPANIES REFERRED
TO ARE IN THE AERONAUTIC FIELD AND SO MUST HAVE BOARD APPROVAL OF THE
KIND OF INTERLOCKING RELATIONSHIPS WHICH ARE MADE UNLAWFUL UNLESS
APPROVED.  MESSRS.  LEHMAN, THOMAS, EHRMAN, HERTZ, AND OTHERS, ARE ALSO
MEMBERS OF LEHMAN BROTHERS, A PARTNERSHIP WHICH, AS PREVIOUSLY POINTED
OUT, CONDUCTS AN INVESTMENT BANKING BUSINESS. 

"THE BOARD HELD THAT AN INDIVIDUAL LEHMAN BROTHERS PARTNER WHO IS A
DIRECTOR OF A SECTION 409(A) COMPANY IS A REPRESENTATIVE OF ANOTHER
PARTNER WHO IS A DIRECTOR OF ANOTHER SUCH COMPANY.  THE RELATIONSHIPS
THUS FOUND TO EXIST WERE DISAPPROVED AS TO THOSE INVOLVING PAN AMERICAN
AND NATIONAL; PAN AMERICAN AND AMERICAN EXPORT LINES; PAN AMERICAN AND
CONSOLIDATED VULTEE; NATIONAL AND PAN AMERICAN; NATIONAL AND
CONSOLIDATED VULTEE; AND CONTINENTAL AIR LINES AND CONSOLIDATED VULTEE
... 

"MORE PRECISELY THE BOARD CONCLUDED THAT A LEHMAN BROTHERS PARTNER
WHO IS DIRECTOR OF AN AIR CARRIER HAS A REPRESENTATIVE 'WHO REPRESENTS
SUCH  ...  DIRECTOR AS  ...  A DIRECTOR' IN ANOTHER SECTION 409(A)
COMPANY IF ANOTHER LEHMAN BROTHERS PARTNER IS A DIRECTOR OF THE LATTER,
COUPLED WITH THE CIRCUMSTANCES THAT HE SEEKS ON BEHALF OF LEHMAN
BROTHERS THE SECURITY UNDERWRITING AND MERGER NEGOTIATION SERVICES USED
BY THE COMPANY OF WHICH HE IS DIRECTOR.  THE UNDERWRITING OF SECURITY
ISSUES AND THE CONDUCT OF MERGER NEGOTIATIONS CONSTITUTE A SUBSTANTIAL
PART OF THE BUSINESS OF LEHMAN BROTHERS, WHO HAVE BEEN EMPLOYED FOR
THESE PURPOSES NOT INFREQUENTLY BY SECTION 409(A) COMPANIES.  THE
PARTNERS FEEL FREE TO SOLICIT THIS BUSINESS FOR THEIR FIRM. 

"  ...  BUT WE MUST CONSIDER THE FACTS OF THE CASE IN THE LIGHT OF
THE PURPOSE OF CONGRESS TO KEEP THE DEVELOPING AVIATION INDUSTRY FREE
OF UNHEALTHY INTERLOCKING RELATIONSHIPS, THOUGH THIS PURPOSE MUST BE
CARRIED OUT ONLY AS THE STATUTE PROVIDES.  THE RELEVANT FINDINGS WHICH
POINT UP THE PROBLEM ARE NOT IN DISPUTE.  THE UNDERWRITING ACTIVITIES
OF LEHMAN BROTHERS IS A SUBSTANTIAL PART OF ITS BUSINESS; SUBSTANTIAL
FEES ARE ALSO OBTAINED BY LEHMAN BROTHERS FROM MERGER NEGOTIATIONS. 
PROFITS FROM THE FEES ARE SHARED BY THE PARTNERS.  SECTION 409(A)
COMPANIES, WITH LEHMAN BROTHERS PARTNERS AS DIRECTORS, NEED AND USE
BOTH TYPES OF SERVICES, AND THE PARTNER DIRECTORS SEEK SUCH BUSINESS
FOR THE PARTNERSHIP.  IN DOING SO THEY ACT AS REPRESENTATIVES OF THE
PARTNERSHIP.  IT FOLLOWS THAT THEY ACT AS REPRESENTATIVES OF FELLOW
PARTNERS, SOME OF WHOM ARE DIRECTORS OF AIR CARRIERS.  IS THIS
REPRESENTATION WITHIN THE MEANING OF THE STATUTE?  DOES MR. THOMAS, TO
USE HIS CASE AS ILLUSTRATIVE, WHO IS A LEHMAN BROTHERS PARTNER AND ALSO
A DIRECTOR OF NATIONAL AIRLINES, REPRESENT, AS DIRECTOR OF NATIONAL
AIRLINES, MR. LEHMAN, ANOTHER LEHMAN BROTHERS PARTNER AND DIRECTOR OF
PAN AMERICAN?  WE THINK THAT THE AFFIRMATIVE ANSWER OF THE BOARD SHOULD
NOT BE DISTURBED.  FOR THE SITUATION COMES TO MORE THAN SOME COMMUNITY
OF INTEREST AND SOME SHARING OF COMMON BENEFITS AS PARTNERS.  THE
PARTICULAR COMMON INTEREST AND BENEFITS ARE AMONG DIRECTORS OF THE
REGULATED INDUSTRY WITH RESPECT TO INDUSTRY MATTERS.  THE PARTNERSHIP
LINK DOES NOT EXTEND MERELY TO A TYPE OF BUSINESS REMOTE FROM THE
AERONAUTICAL INDUSTRY IN WHICH THE PARTNERS ARE DIRECTORS; IT IS WITH
RESPECT TO BUSINESS ACTIVITIES OF AIR CARRIERS AND OTHER AERONAUTICAL
COMPANIES ENUMERATED IN SECTION 409(A).  IN THESE ACTIVITIES THERE IS
NOT ONLY LITERAL REPRESENTATION BY ONE PARTNER OF ANOTHER IN
PARTNERSHIP BUSINESS BUT THE PARTICULAR PARTNERSHIP BUSINESS IS AS WELL
THE BUSINESS OF AERONAUTICAL ENTERPRISES OF WHICH THE PARTNERS ARE
DIRECTORS.  WHEN MR. THOMAS, AGAIN TO ILLUSTRATE, AS DIRECTOR OF
NATIONAL SEEKS TO GUIDE THAT COMPANY'S UNDERWRITING BUSINESS TO LEHMAN
BROTHERS HE ACTS IN THE INTEREST OF AND FOR THE BENEFIT OF MR. LEHMAN
WHO IS NOT ONLY HIS UNDERWRITING PARTNER BUT IS ALSO A DIRECTOR OF AN
AIR CARRIER, PAN AMERICAN.  MR. LEHMAN THE PARTNER IS THE SAME MR.
LEHMAN THE DIRECTOR.  THE BOARD IS NOT REQUIRED TO SEPARATE HIM INTO
TWO PERSONALITIES, AS IT WERE, AND TO SAY THAT MR. THOMAS REPRESENTS
HIM AS A PARTNER BUT NOT AS A DIRECTOR, IF, AS IS THE CASE HERE, THE
REPRESENTATION IS IN REGARD TO THE CARRYING ON OF THE AFFAIRS OF
OF THE PARTNERSHIP WE THINK FOLLOWS INTO THE DIRECTORSHIPS WHEN THE
TRANSACTIONS ENGAGED IN ARE NOT ONLY BY THE PARTNERS BUT CONCERN
COMPANIES REGULATED BY THE STATUTE, OF WHICH THE PARTNERS ARE
DIRECTORS.  THIS IS REPRESENTATION WITHIN NOT ONLY THE LANGUAGE BUT THE
MEANING OF THE STATUTE." 
..END :














HILL V. UNITED STATES 368 U.S. 424 


NO. 68.  ARGUED DECEMBER 5, 1961 - DECIDED JANUARY 22, 1962 - 282 F.2D
352, AFFIRMED. 


IN A FEDERAL DISTRICT COURT, PETITIONER WAS CONVICTED OF TWO FEDERAL
CRIMES AND SENTENCED TO IMPRISONMENT.  HE WAS REPRESENTED BY COUNSEL
BOTH AT THE TRIAL AND WHEN SENTENCE WAS IMPOSED; BUT, BEFORE IMPOSING
SENTENCE, THE JUDGE FAILED TO COMPLY WITH THE REQUIREMENT OF RULE 32(A)
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE THAT HE AFFORD PETITIONER AN
OPPORTUNITY TO MAKE A STATEMENT IN HIS OWN BEHALF.  PETITIONER TOOK NO
APPEAL; BUT FIVE YEARS LATER HE MOVED UNDER 28 U.S.C. SEC. 2255 TO
VACATE THE SENTENCE BECAUSE OF THE JUDGE'S FAILURE TO COMPLY WITH RULE
32(A).  HELD: 

1.  FAILURE TO FOLLOW THE FORMAL REQUIREMENTS OF RULE 32(A) IS NOT OF
ITSELF AN ERROR THAT CAN BE RAISED BY COLLATERAL ATTACK UNDER 28 U.S.C.
SEC. 2255.  PP. 425-429. 

2. THOUGH PETITIONER DENOMINATED HIS MOTION AS ONE BROUGHT UNDER 28
U.S.C. SEC. 2255, IT MAY BE CONSIDERED AS A MOTION TO CORRECT AN
ILLEGAL SENTENCE UNDER RULE 35 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE; BUT THE NARROW FUNCTION OF THAT RULE IS TO PERMIT CORRECTION
OF AN ILLEGAL SENTENCE, NOT TO RE-EXAMINE ERRORS OCCURRING AT THE TRIAL
OR OTHER PROCEEDINGS PRIOR TO THE IMPOSITION OF SENTENCE.  P. 430. 

HILL V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1954 A JURY IN A FEDERAL DISTRICT COURT FOUND THE PETITIONER
GUILTY OF TRANSPORTING A KIDNAPPED PERSON IN INTERSTATE COMMERCE IN
VIOLATION OF 18 U.S.C. SEC. 1201, AND OF TRANSPORTING A STOLEN
AUTOMOBILE IN INTERSTATE COMMERCE IN VIOLATION OF 18 U.S.C. SEC. 2312. 
THE PETITIONER WAS REPRESENTED BY COURT-APPOINTED COUNSEL AT HIS
TRIAL.  WHEN, WITH COUNSEL, HE APPEARED BEFORE THE DISTRICT JUDGE FOR
SENTENCING, THE PETITIONER WAS NOT ASKED WHETHER HE WISHED TO MAKE A
STATEMENT IN HIS OWN BEHALF.  THE DISTRICT JUDGE, AFTER NOTING HIS
FAMILIARITY WITH THE PETITIONER'S CHARACTER AND HISTORY, IMPOSED
CONSECUTIVE PRISON SENTENCES OF TWENTY YEARS AND THREE YEARS FOR THE
TWO OFFENSES OF WHICH THE JURY HAD FOUND THE PETITIONER GUILTY.  THERE
WAS NO APPEAL.  (FN1) 

THE PRESENT LITIGATION BEGAN IN 1959 WITH THE FILING OF A MOTION TO
VACATE SENTENCE UNDER 28 U.S.C. SEC. 2255.  AMONG THE VARIOUS GROUNDS
FOR RELIEF ASSERTED, THE MOTION ALLEGED THAT THE PETITIONER AT THE TIME
OF SENTENCING HAD BEEN "DENIED THE RIGHT UNDER RULE 32(A) OF FEDERAL
RULES OF CRIMINAL PROCEDURE, TITLE 18 U.S.C. TO HAVE THE OPPORTUNITY TO
MAKE A STATEMENT IN HIS OWN BEHALF AND TO PRESENT ANY INFORMATION IN
MITIGATION OF PUNISHMENT."  THE DISTRICT COURT DENIED THE MOTION
WITHOUT EXPLICITLY DISCUSSING THE RULE 32(A) CLAIM.  186 F. SUPP. 441. 
THE COURT OF APPEALS AFFIRMED, PER CURIAM, 282 F.2D 352.  WE GRANTED
CERTIORARI "LIMITED TO THE QUESTION OF WHETHER PETITIONER MAY RAISE HIS
CLAIM UNDER FEDERAL CRIMINAL RULE 32(A) IN THE PROCEEDING WHICH HE HAS
NOW BROUGHT."  365 U.S. 841. 

RULE 32(A) IN PERTINENT PART PROVIDES:  "BEFORE IMPOSING SENTENCE THE
COURT SHALL AFFORD THE DEFENDANT AN OPPORTUNITY TO MAKE A STATEMENT IN
HIS OWN BEHALF AND TO PRESENT ANY INFORMATION IN MITIGATION OF
PUNISHMENT."  THE MEANING OF THIS RULE WAS BEFORE THE COURT LAST TERM
IN GREEN V. UNITED STATES, 365 U.S. 301.  ALTHOUGH THERE WAS NOT COURT
OPINION IN THE GREEN CASE, EIGHT MEMBERS OF THE COURT CONCURRED IN THE
VIEW THAT RULE 32(A) REQUIRES A DISTRICT JUDGE BEFORE IMPOSING SENTENCE
TO AFFORD EVERY CONVICTED DEFENDANT AN OPPORTUNITY PERSONALLY TO SPEAK
IN HIS OWN BEHALF.  THERE THUS REMAINS NO DOUBT AS TO WHAT THE RULE
COMMANDS.  MOREOVER, THE PRESENT RECORD MAKES CLEAR THAT THIS
PETITIONER WAS NOT GIVEN AN EXPRESS OPPORTUNITY TO MAKE A PERSONAL
STATEMENT AT THE TIME HE WAS SENTENCED.  THIS CASE, THEREFORE, IS
TOTALLY UNEMBARRASSED BY ANY SUCH FACTUAL CONTROVERSY AS DIVIDED THE
COURT IN GREEN.  THE ONLY ISSUE PRESENTED IS WHETHER A DISTRICT COURT'S
FAILURE EXPLICITLY TO AFFORD A DEFENDAND AN OPPORTUNITY TO MAKE A
STATEMENT AT THE TIME OF SENTENCING FURNISHES, WITHOUT MORE, GROUNDS
FOR A SUCCESSFUL COLLATERAL ATTACK UPON THE JUDGMENT AND SENTENCE. 
(FN2)  WE HOLD THAT THE FAILURE TO FOLLOW THE FORMAL REQUIREMENTS OF
RULE 32(A) IS NOT OF ITSELF AN ERROR THAT CAN BE RAISED BY COLLATERAL
ATTACK, AND WE ACCORDINGLY AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS. 

UNDER SENTENCE OF A FEDERAL COURT MAY FILE A MOTION IN THE "COURT WHICH
IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR CORRECT THE SENTENCE." 
THE STATUTE STATES FOUR GROUNDS UPON WHICH SUCH RELIEF MAY BE CLAIMED:
(1) "THAT THE SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR
LAWS OF THE UNITED STATES;" (2) "THAT THE COURT WAS WITHOUT
JURISDICTION TO IMPOSE SUCH SENTENCE;" (3) "THAT THE SENTENCE WAS IN
EXCESS OF THE MAXIMUM AUTHORIZED BY LAW;" AND (4) THAT THE SENTENCE "IS
OTHERWISE SUBJECT TO COLLATERAL ATTACK."  (FN3) 

THE CIRCUMSTANCES WHICH LED CONGRESS IN 1948 TO ENACT THIS
LEGISLATION WERE REVIEWED IN DETAIL BY CHIEF JUSTICE VINSON, WRITING
FOR THE COURT IN UNITED STATES V. HAYMAN, 342 U.S. 205.  IT IS
UNNECESSARY TO REVIEW AGAIN HERE THIS LEGISLATIVE HISTORY, WITH WHICH
CHIEF JUSTICE VINSON, AS CHAIRMAN OF THE JUDICIAL CONFERENCE OF THE
UNITED STATES, WAS PARTICULARLY FAMILIAR.  SUFFICE IT TO SAY THAT IT
CONCLUSIVELY APPEARS FROM THE HISTORIC CONTEXT IN WHICH SEC. 2255 WAS
ENACTED THAT THE LEGISLATION WAS INTENDED SIMPLY TO PROVIDE IN THE
SENTENCING COURT A REMEDY EXACTLY COMMENSURATE WITH THAT WHICH HAD
PREVIOUSLY BEEN AVAILABLE BY HABEAS CORPUS IN THE COURT OF THE DISTRICT
WHERE THE PRISONER WAS CONFINED.  (FN4)  SEE HEFLIN V. UNITED STATES,
358 U.S. 415, 421 (CONCURRING OPINION). 

"A REVIEW OF THE HISTORY OF SECTION 2255 SHOWS THAT IT WAS PASSED AT
THE INSTANCE OF THE JUDICIAL CONFERENCE TO MEET PRACTICAL DIFFICULTIES
THAT HAD ARISEN IN ADMINISTERING THE HABEAS CORPUS JURISDICTION OF THE
FEDERAL COURTS.  NOWHERE IN THE HISTORY OF SECTION 2255 DOE WE FIND ANY
PURPOSE TO IMPINGE UPON PRISONERS' RIGHTS OF COLLATERAL ATTACK UPON
THEIR CONVICTIONS.  ON THE CONTRARY, THE SOLE PURPOSE WAS TO MINIMIZE
THE DIFFICULTIES ENCOUNTERED IN HABEAS CORPUS HEARINGS BY AFFORDING THE
SAME RIGHTS IN ANOTHER AND MORE CONVENIENT FORUM."  UNITED STATES V.
HAYMAN, 342 U.S., AT 219.  (FN5) 

THE FAILURE OF A TRIAL COURT TO ASK A DEFENDANT REPRESENTED BY AN
ATTORNEY WHETHER HE HAS ANYTHING TO SAY BEFORE SENTENCE IS IMPOSED IS
NOT OF ITSELF AN ERROR OF THE CHARACTER OR MAGNITUDE COGNIZABLE UNDER A
WRIT OF HABEAS CORPUS.  IT IS AN ERROR WHICH IS NEITHER JURISDICTIONAL
NOR CONSTITUTIONAL.  IT IS NOT A FUNDAMENTAL DEFECT WHICH INHERENTLY
RESULTS IN A COMPLETE MISCARRIAGE OF JUSTICE, NOR AN OMISSION
INCONSISTENT WITH THE RUDIMENTARY DEMANDS OF FAIR PROCEDURE.  IT DOES
NOT PRESENT "EXCEPTIONAL CIRCUMSTANCES WHERE THE NEED FOR THE REMEDY
AFFORDED BY THE WRIT OF HABEAS CORPUS IS APPARENT."  BOWEN V. JOHNSTON,
306 U.S. 19, 27.  SEE ESCOE V. ZERBST, 295 U.S. 490; JOHNSON V. ZERBST,
304 U.S. 458; WALKER V. JOHNSTON, 312 U.S. 275; WALEY V. JOHNSTON, 316
U.S. 101. 

IN SUNAL V. LARGE, 332 U.S. 174, THE COURT HELD THAT THE REMEDY OF
HABEAS CORPUS WAS UNAVAILABLE IN CIRCUMSTANCES FAR MORE COMPELLING THAN
ARE PRESENTED HERE.  THERE THE PETITIONERS AT THEIR CRIMINAL TRIAL HAD
BEEN DENIED AN OPPORTUNITY TO PRESENT A DEFENSE WHICH SUBSEQUENT
DECISIONS OF THIS COURT HAD HELD SHOULD CLEARLY HAVE BEEN AVAILABLE TO
THEM.  WHAT WAS SAID IN THAT CASE IS APPOSITE HERE: 

"WE ARE DEALING HERE WITH A PROBLEM WHICH HAS RADIATIONS FAR BEYOND
THE PRESENT CASES.  THE COURTS WHICH TRIED THE DEFENDANTS HAD
JURISDICTION OVER THEIR PERSONS AND OVER THE OFFENSE.  THEY COMMITTED
AN ERROR OF LAW  ...  .  THAT ERROR DID NOT GO TO THE JURISDICTION OF
THE TRIAL COURT.  CONGRESS, MOREOVER, HAS PROVIDED A REGULAR, ORDERLY
METHOD FOR CORRECTION OF ALL SUCH ERRORS BY GRANTING AN APPEAL TO THE
CIRCUIT COURT OF APPEALS AND BY VESTING US WITH CERTIORARI
JURISDICTION.  IT IS NOT UNCOMMON AFTER A TRIAL IS ENDED AND THE TIME
FOR APPEAL HAS PASSED TO DISCOVER THAT A SHIFT IN THE LAW OR THE IMPACT
OF A NEW DECISION HAS GIVEN INCREASED RELEVANCE TO A POINT MADE AT THE
TRIAL BUT NOT PURSUED ON APPEAL  ...  .  IF IN SUCH CIRCUMSTANCES,
HABEAS CORPUS COULD BE USED TO CORRECT THE ERROR, THE WRIT WOULD BECOME
A DELAYED MOTION FOR A NEW TRIAL, RENEWED FROM TIME TO TIME AS THE
LEGAL CLIMATE CHANGED.  ERROR WHICH WAS NOT DEEMED SUFFICIENTLY
ADEQUATE TO WARRANT AN APPEAL WOULD ACQUIRE NEW IMPLICATIONS  ... .
WISE JUDICIAL ADMINISTRATION OF THE FEDERAL COURTS COUNSELS AGAINST
SUCH COURSE, AT LEAST WHERE THE ERROR DOES NOT TRENCH ON ANY
CONSTITUTIONAL RIGHTS OF DEFENDANTS NOR INVOLVE THE JURISDICTION OF THE
TRIAL COURT."  332 U.S., AT 181-182. 

IT IS TO BE NOTED THAT WE ARE NOT DEALING HERE WITH A CASE WHERE THE
DEFENDANT WAS AFFIRMATIVELY DENIED AN OPPORTUNITY TO SPEAK DURING THE
HEARING AT WHICH HIS SENTENCE WAS IMPOSED.  NOR IS IT SUGGESTED THAT IN
IMPOSING THE SENTENCE THE DISTRICT JUDGE WAS EITHER MISINFORMED OR
UNINFORMED AS TO ANY RELEVANT CIRCUMSTANCES.  INDEED, THERE IS NO CLAIM
THAT THE DEFENDANT WOULD HAVE HAD ANYTHING AT ALL TO SAY IF HE HAD BEEN
FORMALLY INVITED TO SPEAK.  WHETHER SEC. 2255 RELIEF WOULD BE AVAILABLE
IF A VIOLATION OF RULE 32(A) OCCURRED IN THE CONTEXT OF OTHER
AGGRAVATING CIRCUMSTANCES IS A QUESTION WE THEREFORE DO NOT CONSIDER. 
WE DECIDE ONLY THAT SUCH COLLATERAL RELIEF IS NOT AVAILABLE WHEN ALL
THAT IS SHOWN IS A FAILURE TO COMPLY WITH THE FORMAL REQUIREMENTS OF
THE RULE.  (FN6) 

IT IS SUGGESTED THAT ALTHOUGH THE PETITIONER DENOMINATED HIS MOTION
AS ONE BROUGHT UNDER 28 U.S.C. SEC. 2255, WE MAY CONSIDER IT AS A
MOTION TO CORRECT AN ILLEGAL SENTENCE UNDER RULE 35 OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE.  (FN7)  THIS IS CORRECT.  HEFLIN V. UNITED
STATES, 358 U.S. 415, 418, 422.  BUT, AS THE RULE'S LANGUAGE AND
HISTORY MAKE CLEAR, THE NARROW FUNCTION OF RULE 35 IS TO PERMIT
CORRECTION AT ANY TIME OF AN ILLEGAL SENTENCE, NOT TO RE-EXAMINE ERRORS
OCCURRING AT THE TRIAL OR OTHER PROCEEDINGS PRIOR TO THE IMPOSITION OF
SENTENCE.  (FN8)  THE SENTENCE IN THIS CASE WAS NOT ILLEGAL.  THE
PUNISHMENT METED OUT WAS NOT IN EXCESS OF THAT PRESCRIBED BY THE
RELEVANT STATUTES, MULTIPLE TERMS WERE NOT IMPOSED FOR THE SAME
OFFENSE, NOR WERE THE TERMS OF THE SENTENCE ITSELF LEGALLY OR
CONSTITUTIONALLY INVALID IN ANY OTHER RESPECT.  (FN9)  AFFIRMED. 

FN1  IN AN EARLIER MOTION FILED UNDER 28 U.S.C. SEC. 2255 THE
PETITIONER CLAIMED THAT HE HAD BEEN PREVENTED BY GOVERNMENT AGENTS FROM
APPEALING THE JUDGMENT OF CONVICTION.  THE DISTRICT COURT DENIED THE
MOTION.  THE COURT OF APPEALS SET ASIDE THE DISTRICT COURT'S ORDER AND
DIRECTED THAT A HEARING BE HAD ON THE MOTION.  256 F.2D 957.  AFTER A
HEARING BEFORE A DIFFERENT DISTRICT JUDGE, THE MOTION WAS AGAIN
DENIED.  THE COURT OF APPEALS AFFIRMED.  268 F.2D 203. 

FN2  THE MAJORITY OF THE COURT IN THE GREEN CASE DID NOT DECIDE
WHETHER THE ISSUE OF A RULE 32(A) VIOLATION COULD BE RAISED ON
COLLATERAL ATTACK, OR WHETHER SUCH A VIOLATION "WOULD CONSTITUTE AN
ERROR PER SE RENDERING THE SENTENCE ILLEGAL."  365 U.S., AT 303. 

FN3  "A PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED BY
ACT OF CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND THAT
THE SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR LAWS OF
THE UNITED STATES, OR THAT THE COURT WAS WITHOUT JURISDICTION TO IMPOSE
SUCH SENTENCE, OR THAT THE SENTENCE WAS IN EXCESS OF THE MAXIMUM
AUTHORIZED BY LAW, OR IS OTHERWISE SUBJECT TO COLLATERAL ATTACK, MAY
MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE."  28 U.S.C.  SEC. 2255. 

FN4  SEE PARKER, LIMITING THE ABUSE OF HABEAS CORPUS, 8 F.R.D. 171. 

FN5  THE COURTS OF APPEALS, AT LEAST SINCE THE HAYMAN DECISION,
APPEAR TO HAVE CONSISTENTLY UNDERSTOOD THE SUBSTANTIVE SCOPE OF SEC.
2255 TO BE THE SAME AS THAT OF HABEAS CORPUS.  SEE, E.G., LARSON V.
UNITED STATES, 275 F.2D 673 (C.A. 5TH CIR.); BLACK V. UNITED STATES,
269 F.2D 38 (C.A. 9TH CIR.); TAYLOR V. UNITED STATES, 229 F.2D 826, 832
(C.A. 8TH CIR.); KREUTER V. UNITED STATES, 201 F.2D 33, 35 (C.A. 10TH
CIR.). 

FN6  SEE VAN HOOK V. UNITED STATES, 365 U.S. 609, FOR THE RELIEF
AFFORDED ON DIRECT APPEAL IN A CASE WHERE THE SENTENCING JUDGE
DISREGARDED THE MANDATE OF RULE 32(A). 

FN7  RULE 35 PROVIDES IN PERTINENT PART:  "THE COURT MAY CORRECT AN
ILLEGAL SENTENCE AT ANY TIME." 

FN8  AS HAS BEEN POINTED OUT, RULE 35 "WAS A CODIFICATION OF EXISTING
LAW AND WAS INTENDED TO REMOVE ANY DOUBT CREATED BY THE DECISION IN
UNITED STATES V. MAYER, 235 U.S. 55, 67, AS TO THE JURISDICTION OF A
DISTRICT COURT TO CORRECT AN ILLEGAL SENTENCE AFTER THE EXPIRATION OF
THE TERM AT WHICH IT WAS ENTERED."  HEFLIN V. UNITED STATES, 358 U.S.,
AT 422 (CONCURRING OPINION). 

FN9  COMPARE HEFLIN V. UNITED STATES, SUPRA.  IN THAT CASE RULE 35
WAS INVOKED IN A SITUATION WHERE WE UNANIMOUSLY RECOGNIZED THAT THE
ONLY ISSUE WAS WHETHER "THE SENTENCE IMPOSED WAS ILLEGAL ON ITS FACE." 
358 U.S., AT 418 (COURT OPINION), 422 (CONCURRING OPINION).  HEFLING
INVOLVED THE IMPOSITION OF SEPARATE CONSECUTIVE SENTENCES FOR A SINGLE
OFFENSE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING.  THE PETITIONER JAMES HILL
BROUGHT THIS PROCEEDING TO VACATE TWO SENTENCES UNDER WHICH HE IS
IMPRISONED IN A FEDERAL PENITENTIARY, ALLEGING THAT THE SENTENCES ARE
ILLEGAL BECAUSE THE TRIAL JUDGE WHO IMPOSED THEM HAD NOT GIVEN HIM THE
OPPORTUNITY REQUIRED BY RULE 32(A) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE "TO MAKE A STATEMENT IN HIS OWN BEHALF AND TO PRESENT ANY
INFORMATION IN MITIGATION OF PUNISHMENT."  CONCEDING THAT THE SENTENCES
THUS CHALLENGED WERE IMPOSED WITHOUT ACCORDING PETITIONER HIS RIGHT TO
SPEAK, THE COURT NONETHELESS DENIES RELIEF UNDER RULE 35'S PROVISION
FOR THE CORRECTION OF "ILLEGAL" SENTENCES ON THE GROUND THAT THE
SENTENCES THOUGH IMPOSED IN FLAT VIOLATION OF RULE 32(A), WERE NOT
"ILLEGAL" WITHIN THE SPECIAL MEANING WHICH THE MAJORITY NOW ASCRIBES TO
THAT WORD FOR THE PURPOSES OF RULE 35.  (FN1)  THE BASIC EXPLANATION
OFFERED FOR THIS DRASTIC CONTRACTION OF THE ORDINARY MEANING OF THE
WORD "ILLEGAL" IS THIS SINGLE STATEMENT IN THE COURT'S OPINION:    "THE
PUNISHMENT METED OUT WAS NOT IN EXCESS OF THAT PRESCRIBED BY THE
RELEVANT STATUTES, MULTIPLE TERMS WERE NOT IMPOSED FOR THE SAME
OFFENSE, NOR WERE THE TERMS OF THE SENTENCE ITSELF LEGALLY OR
CONSTITUTIONALLY INVALID IN ANY OTHER RESPECT." 

THAT STATEMENT TO ME AMOUNTS TO SOMETHING LESS THAN AN ENTIRELY
SATISFACTORY JUSTIFICATION FOR SUCH A BEGRUDGING INTERPRETATION OF RULE
35. 

THE COURT'S HOLDING CERTAINLY FINDS NO SUPPORT IN THE LANGUAGE OF
RULE 35.  THAT RULE, ALTHOUGH PAINSTAKINGLY DRAWN BY LAWYERS AND
APPROVED BOTH BY JUDGES AND BY THE CONGRESS, SIMPLY PROVIDES FOR THE
CORRECTION OF AN "ILLEGAL SENTENCE" WITHOUT REGARD TO THE REASONS WHY
THAT SENTENCE IS ILLEGAL AND CONTAINS NOT A SINGLE WORD TO SUPPORT THE
COURT'S CONCLUSION THAT ONLY A SENTENCE ILLEGAL BY REASON OF THE
PUNISHMENT IT IMPOSES IS "ILLEGAL" WITHIN THE MEANING OF THE RULE.  I
WOULD HAVE THOUGHT THAT A SENTENCE IMPOSED IN AN ILLEGAL MANNER -
WHETHER THE AMOUNT OR FORM OF THE PUNISHMENT METED OUT CONSTITUTES AN
ADDITIONAL VIOLATION OF LAW OR NOT - WOULD BE RECOGNIZED AS AN "ILLEGAL
SENTENCE" UNDER ANY NORMAL READING OF THE ENGLISH LANGUAGE.  (FN2)  AND
PRECISELY THIS SORT OF COMMON-SENSE UNDERSTANDING OF THE LANGUAGE OF
RULE 35 HAS PREVAILED GENERALLY AMONG THE LOWER FEDERAL COURTS THAT
DEAL WITH QUESTIONS OF THE PROPER INTERPRETATION AND APPLICATION OF
THESE RULES AS AN EVERYDAY MATTER.  THOSE COURTS HAVE EXPRESSED THEIR
BELIEF THAT, EVEN WHERE THE PUNISHMENT IMPOSED UPON A DEFENDANT IS
ENTIRELY WITHIN THE LIMITS PRESCRIBED FOR THE CRIME OF WHICH HE WAS
CONVICTED, A SENTENCE IMPOSED IN A PROHIBITED MANNER - AS, FOR EXAMPLE,
A SENTENCE IMPOSED UPON AN ABSENT DEFENDANT IN VIOLATION OF THE COMMAND
OF RULE 43 THAT A DEFENDANT BE PRESENT AT SENTENCING (FN3) - IS AN
"ILLEGAL SENTENCE" SUBJECT TO CORRECTION UNDER RULE 35.  (FN4) 

THE COURT'S CONTRARY DECISION TODAY, HOWEVER, WAS PERHAPS
FORESHADOWED LAST TERM BY THE NARROW SCOPE GIVEN TO RULE 32(A) WHEN THE
ISSUE OF THE MEANING OF THAT RULE CAME BEFORE US FOR THE FIRST TIME IN
GREEN V. UNITED STATES.  (FN5)  THAT CASE, LIKE THIS ONE, INVOLVED AN
ATTEMPT TO VACATE A SENTENCE AS "ILLEGAL" UNDER RULE 35 ON THE GROUND
THAT THE TRIAL JUDGE HAD FAILED TO ACCORD THE DEFENDANT HIS RIGHT TO
MAKE A STATEMENT BEFORE SENTENCING.  THE RECORD THERE SHOWED MERELY
THAT THE TRIAL JUDGE, IN THE PRESENCE OF BOTH THE DEFENDANT AND HIS
COUNSEL, HAD ASKED GENERALLY, "DID YOU WANT TO SAY SOMETHING?"  AND
THAT, IN RESPONSE TO THIS QUESTION, THE ATTORNEY RATHER THAN THE
DEFENDANT HAD SPOKEN.  RECOGNIZING THAT THE RIGHT ACCORDED BY RULE
32(A) IS A PERSONAL RIGHT WHICH MUST BE EXTENDED TO THE DEFENDANT
HIMSELF, THE COURT NONETHELESS DENIED RELIEF, LARGELY UPON THE VIEW
EXPRESSED BY FOUR MEMBERS OF THE COURT THAT:  "A RECORD, CERTAINLY THIS
RECORD, UNLIKE A PLAY, IS UNACCOMPANIED WITH STAGE DIRECTIONS WHICH MAY
TELL THE SIGNIFICANT CAST OF THE EYE OR THE NOD OF THE HEAD.  IT MAY
WELL BE THAT THE DEFENDANT HIMSELF WAS RECOGNIZED AND SUFFICIENTLY
APPRISED OF HIS RIGHT TO SPEAK AND CHOSE TO EXERCISE THIS RIGHT THROUGH
HIS COUNSEL."  (FN6)  THIS CONCLUSION WAS REACHED BEFORE THIS COURT
EXPRESSLY CONCEDED THAT GREEN HAD NOT BEEN PERSONALLY AFFORDED AN
OPPORTUNITY TO SPEAK. 

BUT EVEN IN GREEN, NOT ONE MEMBER OF THE COURT WENT SO FAR AS EVEN TO
INTIMATE - UNLESS SUCH AN INTIMATION WAS IMPLICIT IN THE CONCURRING
OPINION OF MR. JUSTICE STEWART (FN7) - THAT A SENTENCE UNDENIABLY
IMPOSED IN DISREGARD OF THE LEGAL RIGHT OF A DEFENDANT TO SPEAK FOR
HIMSELF WOULD NOT BE AN "ILLEGAL SENTENCE."  FOUR MEMBERS OF THE COURT
THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN AND I -
EXPRESSLY STATED THE VIEW THAT SUCH A SENTENCE COULD BE CORRECTED UNDER
RULE 35'S PROVISION FOR THE CORRECTION OF "ILLEGAL" SENTENCES.  AND
FOUR OTHER MEMBERS OF THE COURT, IN AN OPINION WRITTEN BY MR. JUSTICE
FRANKFURTER, EMPHASIZED THE IMPORTANCE OF THE RIGHT OF THE DEFENDANT TO
SPEAK FOR HIMSELF, SAYING:  "THE MOST PERSUASIVE COUNSEL MAY NOT BE
ABLE TO SPEAK FOR A DEFENDANT AS THE DEFENDANT MIGHT, WITH HALTING
ELOQUENCE, SPEAK FOR HIMSELF."  (FN8)  ALTHOUGH IT IS TRUE THAT THESE
LATTER FOUR MEMBERS OF THE COURT JOINED IN REFUSING TO SET ASIDE THE
SENTENCE IN THAT CASE, THEIR STATED GROUND WAS:  "THE DEFENDANT HAS
FAILED TO MEET HIS BURDEN OF SHOWING THAT HE WAS NOT ACCORDED THE
PERSONAL RIGHT WHICH RULE 32(A) GUARANTEES, AND WE THEREFORE FIND THAT
HIS SENTENCE WAS NOT ILLEGAL."  (FN9)  IN THE LIGHT OF ALL THESE
STATEMENTS, IT IS NOT SURPRISING THAT THE COURTS OF APPEALS FOR BOTH
THE FIRST AND THE FIFTH CIRCUITS HAVE REGARDED THE COMBINED OPINIONS IN
GREEN AS REQUIRING THE CORRECTION OF SENTENCES AS ILLEGAL WHEN THE
DEFENDANT IS ABLE "TO MEET HIS BURDEN OF SHOWING THAT HE WAS NOT
ACCORDED THE PERSONAL RIGHT WHICH RULE 32(A) GUARANTEES."  (FN10) 

I THINK THAT A DUE OBSERVANCE OF THE REQUIREMENTS OF RULE 32(A),
RESTING AS THEY DO UPON THE ANCIENTLY RECOGNIZED RIGHT OF A DEFENDANT
TO SPEAK TO THE COURT BEFORE SENTENCE IS IMPOSED, IS IMPORTANT TO THE
PROPER ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS.  AND IT SEEMS
TO ME THAT THE COURT IS MISTAKEN IN THINKING THAT THE IMPORTANCE OF
THAT RIGHT IS NOT REFLECTED IN THIS VERY CASE, FOR I CANNOT AGREE WITH
THE COURT'S CONCLUSION THAT "THERE IS NO CLAIM THAT THE DEFENDANT WOULD
HAVE HAD ANYTHING AT ALL TO SAY IF HE HAD BEEN FORMALLY INVITED TO
SPEAK."  ACCORDING TO THE PETITIONER'S BRIEF, THE DENIAL OF HIS RIGHT
TO SPEAK WAS PARTICULARLY INJURIOUS TO HIM HERE BECAUSE HE HAD SEVERAL
PREVIOUS CONVICTIONS WHICH PRESUMABLY WERE KNOWN TO THE SENTENCING
JUDGE.  (FN11)  IN THIS CONNECTION, HE SAYS:  "PETITIONER HAS BEEN AND
IS PRESENTLY SEEKING COLLATERAL RELIEF FROM THOSE JUDGMENTS AND,
INDEED, HAS ALREADY HAD ONE SET ASIDE.  THIS MITIGATING EVIDENCE, IF
KNOWN TO THE SENTENCING COURT, MIGHT HAVE A PROFOUND IMPACT UPON THE
SENTENCE IMPOSED." 

MORE IMPORTANTLY, HOWEVER, WHETHER THE RIGHT TO SPEAK BEFORE SENTENCE
WOULD HAVE BEEN OF VALUE TO PETITIONER IN THIS PARTICULAR CASE OR NOT,
THE RIGHT IS ONE RECOGNIZED BY A RULE WHICH HAS THE FORCE OF LAW AND A
SENTENCE IMPOSED IN VIOLATION OF LAW IS PLAINLY "ILLEGAL".  IF THE
COURT IS UNHAPPY WITH THE WORDING OF RULE 35 - A WORDING ADOPTED BY THE
COURT ITSELF AND SUBMITTED TO CONGRESS FOR APPROVAL AS REQUIRED BY LAW
WHATEVER CHANGE IS NECESSARY TO BRING THE RULE INTO CONFORMITY WITH
THE COURT'S PRESENT PREFERENCES SHOULD BE INCORPORATED INTO THE
EXPLICIT LANGUAGE OF THE RULE AND SUBMITTED TO CONGRESS FOR ITS
APPROVAL.  I WOULD REVERSE THIS CASE AND REMAND IT TO ALLOW THE
DISTRICT COURT TO RESENTENCE PETITIONER AFTER GRANTING HIM HIS RIGHT TO
SPEAK UNDER RULE 32(A). 

FN1  PETITIONER'S ATTACK UPON HIS SENTENCES WAS ORIGINALLY BROUGHT AS
A MOTION UNDER 28 U.S.C. SEC. 2255.  SINCE I AGREE WITH THE COURT THAT
A MOTION UNDER SEC. 2255 MUST, WHERE APPROPRIATE, ALSO BE CONSIDERED AS
A MOTION UNDER RULE 35, AND BECAUSE I THINK PETITIONER IS PLAINLY
ENTITLED TO RELIEF UNDER THAT RULE, I FIND IT UNNECESSARY TO CONSIDER
THE QUESTION DISCUSSED BY THE COURT AS TO WHETHER PETITIONER IS ALSO
ENTITLED TO RELIEF UNDER SEC. 2255. 

FN2  THIS DOES NOT OF COURSE MEAN THAT RULE 35 PERMITS ATTACK UPON A
SENTENCE BASED UPON MERE TRIAL ERRORS.  RULE 35 APPLIES TO ANY "ILLEGAL
SENTENCE," NOT TO ANY ILLEGAL CONVICTION, AND THUS BY ITS TERMS THE
RULE PROTECTS ONLY THOSE RIGHTS WHICH A DEFENDANT RETAINS EVEN IF THE
JUDGMENT OF GUILT AGAINST HIM IS PROPER.  SEE COOK V. UNITED STATES,
171 F.2D 567, 570-571. 

FN3  RULE 43 PROVIDES:  "THE DEFENDANT SHALL BE PRESENT AT THE
ARRAIGNMENT, AT EVERY STAGE OF THE TRIAL INCLUDING THE IMPANELING OF
THE JURY AND THE RETURN OF THE VERDICT, AND AT THE IMPOSITION OF
SENTENCE, EXCEPT AS OTHERWISE PROVIDED BY THESE RULES  ...  ." 

FN4  SEE COOK V. UNITED STATES, 171 F.2D 567; CROWE V. UNITED STATES,
200 F.2D 526.  CF. WILLIAMSON V. UNITED STATES, 265 F.2D 236, 239. 
SIMILARLY, IT HAS ALSO BEEN HELD THAT RULE 35'S CORRECTIVE FORCE
EXTENDS TO A SENTENCE ILLEGAL BY REASON OF THE FACT THAT THE DEFENDANT
UPON WHOM IT WAS IMPOSED WAS INSANE AT THE TIME OF SENTENCING.  BYRD V.
PESCOR, 163 F.2D 775.  SEE ALSO DUGGINS V. UNITED STATES, 240 F.2D 479,
483-484. 

FN5  365 U.S. 301. 

FN6  ID., AT 304-305. 

FN7  BUT CF. MR. JUSTICE STEWART'S CONCURRING OPINION IN HEFLIN V.
UNITED STATES, 358 U.S. 415, 420, IN WHICH THE FOUR OTHER MEMBERS OF
THE PRESENT MAJORITY CONCURRED. 

FN8  365 U.S., AT 304. 

FN9  ID., AT 305. 

FN10  DOMENICA V. UNITED STATES, 292 F.2D 483; JENKINS V. UNITED
STATES, 293 F.2D 96. 

FN11  RULE 32(C) PROVIDES FOR A PRESENTENCE INVESTIGATION AND REPORT
TO THE TRIAL JUDGE FOR USE IN IMPOSING SENTENCE WHICH "SHALL CONTAIN
ANY PRIOR CRIMINAL RECORD OF THE DEFENDANT  ...  ."  SINCE THIS IS NOT
THE SORT OF INFORMATION WHICH NORMALLY FINDS ITS WAY INTO THE RECORD AT
THE TRIAL ITSELF, A DEFENDANT'S ONLY CHANCE TO EXPLAIN OR REBUT SUCH
EVIDENCE WILL OFTEN BE BY EXERCISE OF HIS RIGHT UNDER 32(A). 
..END :



















NOSTRAND V. LITTLE 368 U.S. 436 


NO. 571.  DECIDED JANUARY 22, 1962 - REPORTED BELOW:  58 WASH. 2D 111,
361 P.2D 551. 


AFTER THE COURT'S REMAND OF THIS CASE, 362 U.S. 474, THE STATE SUPREME
COURT HELD THAT APPELLANTS, WHO ARE PROFESSORS AT THE STATE UNIVERSITY,
ARE ENTITLED TO HEARINGS BEFORE THEY CAN BE DISCHARGED FOR REFUSAL TO
SWEAR THAT THEY ARE NOT MEMBERS OF THE COMMUNIST PARTY OR ANY OTHER
SUBVERSIVE ORGANIZATION, AS REQUIRED BY A STATE STATUTE.  THEY AGAIN
APPEALED FROM THE JUDGMENT OF THAT COURT SUSTAINING THE
CONSTITUTIONALITY OF THE STATUTE AGAINST THEIR CLAIM, IN A DECLARATORY
JUDGMENT PROCEEDING, THAT IT VIOLATES THE FIRST AND FOURTEENTH
AMENDMENTS.  HELD:  THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION. 

NOSTRAND ET AL. V. LITTLE ET. AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE DISPOSITION THAT THE COURT MAKES OF THE CASE RESOLVES ONE OF THE
QUESTIONS PRESENTED BY THE APPEAL, VIZ., THAT APPELLANTS ARE ENTITLED
TO A HEARING BEFORE THEY CAN BE DISCHARGED FOR REFUSING TO TAKE THE
OATH.  THIS WAS THE HOLDING BELOW ON THE REMAND.  (FN1)  58 WASH. 2D
111, 132, 361 P.2D 551, 564. 

YET A REMAND FOR THAT PURPOSE DOES NOT ANSWER THE OTHER QUESTIONS
TENDERED, WHICH CONCERN THE OATH IN QUESTION AND FIRST AND FOURTEENTH
AMENDMENT RIGHTS. 

THE OATH WASHINGTON DEMANDS OF A TEACHER (WASH. REV. CODE, 1951, SEC.
9.81.070) REQUIRES HIM TO SWEAR HE IS NOT A "SUBVERSIVE PERSON," WHO IS
DEFINED AS: 

"  ... ANY PERSON WHO COMMITS, ATTEMPTS TO COMMIT, OR AIDS IN THE
COMMISSION, OR ADVOCATES, ABETS, ADVISES OR TEACHES BY ANY MEANS ANY
PERSON TO COMMIT, ATTEMPT TO COMMIT, OR AID IN THE COMMISSION OF ANY
ACT INTENDED TO OVERTHROW, DESTROY OR ALTER, OR TO ASSIST IN THE
OVERTHROW, DESTRUCTION OR ALTERATION OF, THE CONSTITUTIONAL FORM OF THE
GOVERNMENT OF THE UNITED STATES, OR OF THE STATE OF WASHINGTON, OR ANY
POLITICAL SUBDIVISION OF EITHER OF THEM BY REVOLUTION, FORCE, OR
VIOLENCE; OR WHO WITH KNOWLEDGE THAT THE ORGANIZATION IS AN
ORGANIZATION AS DESCRIBED IN SUBSECTIONS (2) AND (3) HEREOF, BECOMES OR
REMAINS A MEMBER OF A SUBVERSIVE ORGANIZATION OR A FOREIGN SUBVERSIVE
ORGANIZATION."  WASH. REV. CODE, 1951, SEC. 9.81.010(5), AS AMENDED IN
1953. 

ONE ASPECT OF THE QUESTION THE COURT DOES NOT ANSWER IS AKIN TO THE
ONE WE HAD IN CRAMP V. BOARD OF PUBLIC INSTRUCTION, ANTE, P. 278. 
THERE WE HELD THAT AN OATH WHICH REQUIRED A TEACHER TO SAY HE HAD NEVER
KNOWINGLY LENT HIS "AID" OR "SUPPORT" OR "ADVICE" OR "COUNSEL" OR
"INFLUENCE" TO THE COMMUNIST PARTY WAS UNCONSTITUTIONAL, BECAUSE IT
BROUGHT OR MIGHT BRING INTO ITS NET PEOPLE WHO, BY PARALLELISM OF
CONDUCT, MIGHT BE SAID TO HAVE GIVEN "AID" TO THE COMMUNIST PARTY
THOUGH THE CAUSE THEY ESPOUSED WAS WHOLLY LAWFUL. 

THIS OATH PRESENTS THE QUESTION WHETHER ONE WHO PLANS TO "ALTER" THE
GOVERNMENT OF THE UNITED STATES BY "REVOLUTION" OR WHO KNOWINGLY
BELONGS TO A GROUP THAT SPONSORS THAT IDEA CAN BE DISQUALIFIED AS A
TEACHER.  TO "ALTER" HAS BEEN THE OBJECTIVE OF MANY WHO HAVE PROPOSED
CONSTITUTIONAL AMENDMENTS.  THE IDEA OF "REVOLUTION" IS AN AMERICAN
CONCEPT (FN2) THAT AT LEAST UNTIL RECENTLY HAS BEEN GREATLY REVERSED. 
A "REVOLUTION" THAT OPERATES THROUGH THE ROUTE OF CONSTITUTIONAL
AMENDMENTS WOULD, AT LEAST ARGUABLY, BE IN KEEPING WITH OUR IDEAS OF
FREEDOM OF BELIEF AND EXPRESSION.  I MENTION THIS MATTER NOT TO DECIDE
IT BUT TO INDICATE ITS GRAVITY AND IMPORTANCE. 

THE JUDGMENT BELOW DISMISSED THE COMPLAINT.  THAT ACTION, TOGETHER
WITH WHAT WE DO TODAY, DEPRIVES APPELLANTS OF THEIR RIGHT TO
DECLARATORY RELIEF ON QUESTIONS WE HAVE NEVER DECIDED.  THEY ARE
REMITTED TO THE ADMINISTRATIVE RELIEF AFFORDED BY A HEARING - A RELIEF
THEY CAN GET ONLY IF THEY REFUSE TO TAKE THE OATH.  WHETHER THEY CAN
PRESERVE IN AN ADMINISTRATIVE PROCEEDING THE FULL ARRAY OF
CONSTITUTIONAL QUESTIONS WHICH THEY NOW TENDER IS AT LEAST DEBATABLE,
SINCE THE JUDGMENT THAT DISMISSES THEIR COMPLAINT DECIDES ALL THE
CONSTITUTIONAL QUESTIONS, EXCEPT THE RIGHT TO A HEARING, AGAINST THEM. 

FOR THESE REASONS I DISSENT FROM THE DISPOSAL MADE OF THE CASE AND
VOTE TO NOTE JURISDICTION. 

FOR THE REASONS STATED BY MR. JUSTICE DOUGLAS IN HIS DISSENT, AND
OTHERS, MR. JUSTICE BLACK ALSO DISSENTS FROM THE DISMISSAL OF THIS
CASE. 

FN1  THE PURPOSE OF OUR REMAND WHEN THE CASE WAS HERE EARLIER WAS TO
HAVE THAT QUESTION OF LOCAL LAW RESOLVED.  NOSTRAND V. LITTLE, 362 U.S.
474. 

FN2  SEE SCALES V. UNITED STATES, 367 U.S. 203, 262, 275 (DISSENTING
OPINION AND APPENDIX). 
..END :




















MITCHELL V. UNITED STATES 368 U.S. 439 


NO. 448, MISC.  DECIDED JANUARY 22, 1962 - REPORTED BELOW:  110 U.S.
APP. D.C. 322, 293 F.2D 161. 


IN A FEDERAL DISTRICT COURT, PETITIONER WAS CONVICTED OF ROBBERY IN
THE DISTRICT OF COLUMBIA AND SENTENCED TO IMPRISONMENT.  HE
SUBSEQUENTLY FILED IN THAT COURT A PAPER ENTITLED "MOTION FOR DISMISSAL
OF SENTENCE AND REVERSAL OF VERDICT," CLAIMING, INTER ALIA, THAT
MATERIALLY FALSE TESTIMONY HAD BEEN USED AGAINST HIM AT THE TRIAL. 
THAT COURT TREATED THAT MOTION AS ONE TO VACATE SENTENCE UNDER 28
U.S.C. SEC. 2255 AND DENIED IT.  THE COURT OF APPEALS AFFIRMED, THOUGH
PETITIONER HAD PRODUCED IN THAT COURT, FOR THE FIRST TIME, AN AFFIDAVIT
OF A POLICE CAPTAIN WHICH CONTRADICTED THE TESTIMONY OF A PROSECUTION
WITNESS.  HELD:  CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE
REMANDED TO THE DISTRICT COURT FOR A HEARING UPON PETITIONER'S MOTION,
TREATED AS A MOTION FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED
EVIDENCE. 

MITCHELL V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI, WHICH PRESENTS THE QUESTION WHETHER
MATERIALLY FALSE TESTIMONY WAS USED AGAINST PETITIONER AT THE TRIAL,
ARE GRANTED, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR A HEARING UPON PETITIONER'S
MOTION, TREATED AS A MOTION FOR A NEW TRIAL ON THE GROUND OF NEWLY
DISCOVERED EVIDENCE.  CF. MESAROSH V. UNITED STATES, 352 U.S. 1.  WE,
OF COURSE, INTIMATE NO VIEW UPON THE MERITS OF THE MOTION. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

THE COURT SUA SPONTE SUMMARILY VACATES THIS JUDGMENT AFFIRMING THE
DENIAL OF A SEC. 2255 APPLICATION AND REMANDS THE MATTER FOR A HEARING,
TREATING THE CASE AS ONE INVOLVING A MOTION FOR A NEW TRIAL ON THE
GROUND OF NEWLY DISCOVERED EVIDENCE.  I CHARACTERIZE THE APPLICATION
BELOW, TITLED A "MOTION FOR REVERSAL OF VERDICT AND DISMISSAL OF
SENTENCE," AS ONE UNDER 28 U.S.C. SEC. 2255 NOT ONLY BECAUSE OF ITS
WORDING BUT ALSO BECAUSE THE PETITIONER, THE GOVERNMENT, THE TRIAL
COURT, AND THE COURT OF APPEALS (INCLUDING THE DISSENTING JUDGE) SO
STYLED IT.  ALTHOUGH PETITIONER IN THE ALTERNATIVE CONTENDS THAT THE
WORDING OF THIS APPLICATION COULD SERVE AS "NOTICE OF APPEAL," HE NEVER
SUGGESTS IT SHOULD BE TREATED AS A MOTION FOR A NEW TRIAL.  IF
PETITIONER HAD INTENDED THE APPLICATION IN QUESTION TO SERVE AS A
MOTION FOR A NEW TRIAL, HE WOULD HAVE SO LABELED IT AS HE DID THE
MOTION FILED FOUR DAYS AFTER THE VERDICT.  THE COURT, DESPITE THIS
TREATMENT BY ALL PARTIES AND JUDGES BELOW, TAGS THE APPLICATION AS A
MOTION FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE IN
ORDER TO ESCAPE THE LIMITATIONS OF SEC. 2255.  I CANNOT GIVE THIS
PLEADING SUCH A TWIST, BUT EVEN IF I COULD I WOULD HAVE TO FIND THE
ALLEGATIONS INSUFFICIENT TO MEET THE REQUIREMENTS OF RULE 33, WHICH
GOVERNS MOTIONS FOR NEW TRIALS. 

THE NEWLY DISCOVERED EVIDENCE CONSISTS OF AN AFFIDAVIT BY POLICE
CAPTAIN BROWN WHICH MERELY CORROBORATES THE TESTIMONY OF PETITIONER AND
ANOTHER WITNESS.  IT APPEARS THAT DURING THE INVESTIGATION OF THE
ROBBERY IN QUESTION THE PETITIONER AND ONE ADCOCK WERE PLACED IN A
POLICE LINE-UP SUPERVISED BY POLICE CAPTAIN BROWN.  FROM THIS LINE-UP
ELLIS, ONE OF THE VICTIMS, IDENTIFIED ADCOCK AS THE ROBBER.  ON TRIAL
ELLIS TESTIFIED THAT HIS IDENTIFICATION WAS NOT POSITIVE AND THAT HE
ONLY PICKED ADCOCK AS ONE WHO RESEMBLED THE ROBBER.  BOTH ADCOCK AND
PETITIONER, HOWEVER, TESTIFIED THAT ELLIS HAD POSITIVELY IDENTIFIED
ADCOCK IN THE LINE-UP.  THERE IS NO CONTENTION OR SHOWING THAT THE
GOVERNMENT KNEW THAT ELLIS' TESTIMONY WAS FALSE.  BROWN'S AFFIDAVIT WAS
OBTAINED WHILE THE CASE WAS PENDING IN THE COURT OF APPEALS. 

THE AFFIDAVIT, OF COURSE, WAS NOT NEWLY DISCOVERED EVIDENCE.  BOTH
ADCOCK AND THE PETITIONER WERE IN THE LINE-UP, AND BOTH KNEW THAT
POLICE CAPTAIN BROWN WAS LIKEWISE PRESENT AND SAW AND HEAR ELLIS'
IDENTIFICATION.  IN SUCH A SITUATION PETITIONER'S MOTION FOR A NEW
TRIAL WOULD BE ULTIMELY BECAUSE RULE 33, FED. RULES CRIM. PROC.,
PERMITS SUCH A MOTION TO BE MADE MORE THAN FIVE DAYS AFTER A VERDICT OF
GUILTY ONLY IN THE CASE OF NEWLY DISCOVERED EVIDENCE.  HOWEVER, EVEN IF
THE FACTS IN THE AFFIDAVIT WERE NEWLY DISCOVERED, IT WOULD STILL NOT BE
SUFFICIENT UNDER RULE 33.  AS WAS SAID IN MESAROSH V. UNITED STATES,
352 U.S. 1, 9, "NEW EVIDENCE WHICH IS 'MERELY CUMULATIVE OR IMPEACHING'
IS NOT, ACCORDING TO THE OFTEN-REPEATED STATEMENT OF THE COURTS, AN
ADEQUATE BASIS FOR THE GRANT OF A NEW TRIAL.  (CITING CASES.)" 

ON THE OTHER HAND, IF THE COURT TREATS THE APPLICATION AS ONE UNDER
SEC. 2255, IT IS INSUFFICIENT.   UNDER THAT SECTION THE APPLICATION
WOULD BE A COLLATERAL ATTACK ON THE CONVICTION.  IN SUCH A CASE IT IS
ESSENTIAL FOR THE MOVING PARTY TO ESTABLISH NOT ONLY THAT PERJURY
EXISTED BUT ALSO THAT THE PROSECUTION USED THE TESTIMONY KNOWINGLY AND
WILFULLY TO OBTAIN A CONVICTION.  E.G., GRIFFIN V. UNITED STATES, 103
U.S. APP. D.C.  317, 258 F.2D 411 (1958); TILGHMAN V. HUNTER, 167 F.2D
661 (C.A. 10TH CIR. 1948).  THIS LONG-STANDING LIMITATION WAS NOT
ERASED BY MESAROSH V. UNITED STATES, SUPRA, WHICH INVOLVED A DIRECT
ATTACK ON THE CONVICTION RATHER THAN A COLLATERAL ATTACK. 

I REGRET THAT THE COURT, IN AN EFFORT TO AVOID THE REQUIREMENTS OF
SEC. 2255, TREATS AN APPLICATION THEREUNDER AS A MOTION FOR A NEW
TRIAL.  IN MY VIEW THIS IS A NEW APPROACH TO SEC. 2255 CASES.  IT
EXTENDS THAT SECTION FAR BEYOND ITS INTENDED SCOPE AND CAN ONLY PLAGUE
US IN FUTURE CASES.  I THEREFORE DISSENT. 
..END :
















SEYMOUR V. SUPERINTENDENT OF WASHINGTON STATE PENITENTIARY 368 U.S. 351 



NO. 62.  ARGUED DECEMBER 13, 1961 - DECIDED JANUARY 15, 1962 - 55 WASH.
2D 109, 346 P.2D 669, REVERSED. 


PETITIONER IS IMPRISONED IN THE WASHINGTON STATE PENITENTIARY UNDER A
SENTENCE FOR ATTEMPTED BURGLARY IMPOSED BY A STATE COURT.  HE
PETITIONED THE STATE SUPREME COURT FOR HABEAS CORPUS, ALLEGING THAT HE
IS AN INDIAN, THAT THE ALLEGED OFFENSE WAS COMMITTED IN "INDIAN
COUNTRY," AND THAT, THEREFORE, EXCLUSIVE JURISDICTION WAS IN THE UNITED
STATES UNDER 18 U.S.C. SEC. 1153.  THE COURT FOUND THAT PETITIONER WAS
A MEMBER OF THE COLVILLE TRIBE; BUT IT DENIED HABEAS CORPUS ON THE
GROUND THAT THE  PLACE WHERE THE OFFENSE WAS COMMITTED WAS NO LONGER AN
INDIAN RESERVATION, THOUGH IT HAD BEEN A PART OF THE COLVILLE INDIAN
RESERVATION.  HELD:  THE COLVILLE INDIAN RESERVATION IS STILL IN
EXISTENCE; THE LAND UPON WHICH THE OFFENSE IS ALLEGED TO HAVE OCCURRED
IS WITHIN THE LIMITS OF THAT RESERVATION; THE STATE COURTS HAD NO
JURISDICTION TO TRY PETITIONER FOR THAT OFFENSE; AND THE JUDGMENT
DENYING HABEAS CORPUS IS REVERSED.  PP. 352-359. 

(A)  THE ACT OF MARCH 22, 1906, PROVIDING FOR THE DISPOSITION OF
SURPLUS LANDS REMAINING IN THE SOUTH HALF OF THE DIMINISHED COLVILLE
INDIAN RESERVATION DID NOT DISSOLVE THAT RESERVATION, AND IT IS STILL
IN EXISTENCE.  PP. 354-357. 

(B)  EVEN IF THE LAND UPON WHICH THE ALLEGED OFFENSE WAS COMMITTED
WAS HELD BY A NON-INDIAN UNDER A PATENT IN FEE, A DIFFERENT CONCLUSION
WOULD NOT BE REQUIRED, SINCE 18 U.S.C. SEC. 1151 DEFINES "INDIAN
COUNTRY" AS INCLUDING "ALL LAND WITHIN THE LIMITS OF ANY INDIAN
RESERVATION  ...  , NOTWITHSTANDING THE ISSUANCE OF ANY PATENT."  PP.
357-358. 

(C)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT THE LAND
ON WHICH THE OFFENSE OCCURRED IS LOCATED WITH A GOVERNMENTAL TOWNSITE
LAID OUT BY THE FEDERAL GOVERNMENT UNDER SEC.  11 OF THE 1906 ACT.  PP.
358-359. 

SEYMOUR V. SUPERINTENDENT OF WASHINGTON STATE PENITENTIARY. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER PAUL SEYMOUR WAS CHARGED WITH BURGLARY BY THE STATE OF
WASHINGTON IN THE SUPERIOR COURT OF OKANOGAN COUNTY AND PLEADED GUILTY
TO THE LESSER INCLUDED OFFENSE OF ATTEMPTED BURGLARY.  UPON THIS PLEA
HE WAS CONVICTED AND SENTENCED TO SERVE SEVEN AND ONE-HALF YEARS IN THE
STATE PENITENTIARY.  LATER, HE COMMENCED THIS PROCEEDING BY FILING A
PETITION FOR WRIT OF HABEAS CORPUS IN THE STATE SUPREME COURT URGING
THAT HIS STATE CONVICTION WAS VOID FOR WANT OF JURISDICTION ON THE
GROUNDS THAT HE WAS AN ENROLLED, UNEMANCIPATED MEMBER OF THE COLVILLE
INDIAN TRIBE AND THEREFORE A WARD OF THE UNITED STATES; THAT THE
"PURPORTED CRIME" OF BURGLARY FOR WHICH HE HAD BEEN CONVICTED WAS
COMMITTED IN "INDIAN COUNTRY" AS DEFINED IN 18 U.S.C. SEC. 1151; (FN1)
AND THAT BURGLARY COMMITTED BY AN INDIAN IN INDIAN COUNTRY IS AN
OFFENSE "WITHIN THE EXCLUSIVE JURISDICTION OF THE UNITED STATES" UNDER
18 U.S.C. SEC. 1153.  (FN2)  SINCE THE PETITION, RETURN AND ANSWER
RAISED ISSUES OF FACT, THE STATE SUPREME COURT REFERRED THE MATTER TO
THE ORIGINAL TRIAL COURT TO DETERMINE (1) WHETHER PETITIONER WAS A
MEMBER OF THE COLVILLE TRIBE, AND (2) WHETHER THE OFFENSE WAS COMMITTED
IN INDIAN COUNTRY.  AFTER HEARINGS, THE TRIAL COURT UPHELD PETITIONER'S
CLAIM OF MEMBERSHIP IN THE COLVILLE TRIBE, BUT REJECTED HIS CONTENTION
THAT THE BURGLARY UPON WHICH THE STATE CONVICTION WAS BASED HAD
OCCURRED IN INDIAN COUNTRY. 

THE TRIAL COURT'S CONCLUSION THAT THE CRIME DID NOT TAKE PLACE IN
INDIAN COUNTRY WAS NOT BASED UPON ANY FACTUAL DOUBT AS TO THE PRECISE
PLACE WHERE THE BURGLARY OCCURRED FOR THAT FACT WAS UNDISPUTED.  NOR
DID THAT CONCLUSION REST UPON ANY UNCERTAINTY AS TO THE PROPER
DEFINITION OF THE TERM "INDIAN COUNTRY" FOR THE COURT EXPRESSLY
RECOGNIZED THE APPLICABILITY OF SEC. 1151 WHICH DEFINES THE TERM TO
INCLUDE "ALL LAND WITHIN THE LIMITS OF ANY INDIAN RESERVATION UNDER THE
JURISDICTION OF THE UNITED STATES GOVERNMENT, NOTWITHSTANDING THE
ISSUANCE OF ANY PATENT, AND, INCLUDING RIGHTS-OF-WAY RUNNING THROUGH
THE RESERVATION  ...  ."  RATHER, THE TRIAL COURT'S CONCLUSION RESTED
SOLELY UPON ITS HOLDING THAT, ALTHOUGH THE LAND UPON WHICH THE BURGLARY
OCCURRED HAD ONCE BEEN WITHIN THE LIMITS OF AN INDIAN RESERVATION, THAT
RESERVATION HAD SINCE BEEN DISSOLVED AND THE LAND IN QUESTION RESTORED
TO THE PUBLIC DOMAIN. 

AGREEING WITH THE TRIAL COURT, THE STATE SUPREME COURT THEN DENIED
THE PETITION FOR HABEAS CORPUS, (FN3) HOLDING AS IT PREVIOUSLY HAD IN
STATE EX REL. BEST V. SUPERIOR COURT, (FN4) THAT "WHAT IS STILL KNOWN
AS THE SOUTH HALF OF THE DIMINISHED COLVILLE INDIAN RESERVATION IS NO
LONGER AN INDIAN RESERVATION."  SINCE THE QUESTION OF WHETHER THE PLACE
WHERE THE CRIME OCCURRED IS A PART OF AN INDIAN RESERVATION AND
THEREFORE INDIAN COUNTRY WITHIN THE MEANING OF SECS. 1151 AND 1153
DEPENDS UPON THE INTERPRETATION AND APPLICATION OF FEDERAL LAW, AND
SINCE THE RESOLUTION OF THAT QUESTION AS PRESENTED IN THIS CASE RAISES
ISSUES OF IMPORTANCE PERTAINING TO THIS COUNTRY'S RELATIONSHIP TO ITS
INDIAN WARDS, WE GRANTED CERTIORARI.  (FN5) 

THE CASE TURNS UPON THE CURRENT STATUS OF THE COLVILLE INDIAN
RESERVATION - A RESERVATION CREATED IN 1872 BY EXECUTIVE ORDER OF
PRESIDENT GRANT WHICH DECLARED THAT "THE COUNTRY BOUNDED ON THE EAST
AND SOUTH BY THE COLUMBIA RIVER, ON THE WEST BY THE OKANAGAN RIVER, AND
ON THE NORTH BY THE BRITISH POSSESSIONS, BE, AND THE SAME IS HEREBY,
SET APART AS A RESERVATION FOR" THE COLVILLE INDIANS.  (FN6)  IN 1892,
THE SIZE OF THIS RESERVATION WAS DIMINISHED WHEN CONGRESS PASSED AN ACT
PROVIDING THAT, SUBJECT TO RESERVATIONS AND ALLOTMENTS MADE TO
INDIVIDUAL COLVILLE INDIANS, ABOUT ONE-HALF OF THE ORIGINAL COLVILLE
RESERVATION, SINCE COMMONLY REFERRED TO AS THE "NORTH HALF," SHOULD BE
"VACATED AND RESTORED TO THE PUBLIC DOMAIN  ...  ."  (FN7)  THIS ACT
DID NOT, HOWEVER, PURPORT TO AFFECT THE STATUS OF THE REMAINING PART OF
THE RESERVATION, SINCE KNOWN AS THE "SOUTH HALF" OR THE "DIMINISHED
COLVILLE INDIAN RESERVATION," BUT INSTEAD EXPRESSLY REAFFIRMED THAT
THIS SOUTH HALF WAS "STILL RESERVED BY THE GOVERNMENT FOR THEIR (THE
COLVILLE INDIANS') USE AND OCCUPANCY."  (FN8) SINCE THE BURGLARY OF
WHICH PETITIONER WAS CONVICTED OCCURRED ON LAND WITHIN THE SOUTH HALF,
IT IS CLEAR THAT STATE JURISDICTION OVER THE OFFENSE CHARGED, IF IT IS
TO BE FOUND AT ALL, MUST BE BASED UPON SOME FEDERAL ACTION SUBSEQUENT
TO THE 1892 ACT. 

THE WASHINGTON COURTS FOUND AUTHORITY FOR THE ASSERTION OF STATE
JURISDICTION IN A 1906 ACT OF CONGRESS (FN9) IMPLEMENTED BY A 1916
PRESIDENTIAL PROCLAMATION.  (FN10)  THE 1906 ACT PROVIDED FOR THE SALE
OF MINERAL LANDS AND FOR THE SETTLEMENT AND ENTRY UNDER THE HOMESTEAD
LAWS OF OTHER SURPLUS LANDS REMAINING ON THE DIMINISHED COLVILLE
RESERVATION AFTER ALLOTMENTS WERE FIRST MADE AND PATENTS ISSUED FOR 80
ACRES OF LAND TO "EACH MAN, WOMAN, AND CHILD" EITHER "BELONGING TO OR
HAVING TRIBAL RELATIONS ON SAID COLVILLE INDIAN RESERVATION  ...  ." 
THE 1916 PRESIDENTIAL PROCLAMATION ISSUED PURSUANT TO THIS ACT SIMPLY
PRESCRIBED THE METHOD FOR DISPOSAL OF SURPLUS LANDS UNDER THE HOMESTEAD
LAWS AS THE 1906 ACT HAD AUTHORIZED.  THE WASHINGTON COURTS VIEWED THIS
1906 ACT AND THE 1916 PRESIDENTIAL PROCLAMATION AS COMPLETELY WIPING
OUT THE SOUTH HALF OF THE COLVILLE RESERVATION IN PRECISELY THE SAME
MANNER AS THE 1892 ACT HAD "VACATED AND RESTORED" THE NORTH HALF OF THE
RESERVATION "TO THE PUBLIC DOMAIN."  UPON CAREFUL CONSIDERATION,
HOWEVER, WE CANNOT AGREE WITH THAT CONCLUSION FOR IT HAS NO SUPPORT IN
THE LANGUAGE OF THE 1906 ACT AND IGNORES IMPORTANT DIFFERENCES BETWEEN
THAT ACT AND THE PROVISIONS OF THE 1892 ACT RESTORING THE NORTH HALF OF
THE RESERVATION TO THE PUBLIC DOMAIN. 

NOWHERE  IN THE 1906 ACT IS THERE TO BE FOUND ANY LANGUAGE SIMILAR TO
THAT IN THE 1892 ACT EXPRESSLY VACATING THE SOUTH HALF OF THE
RESERVATION AND RESTORING THAT LAND TO THE PUBLIC DOMAIN.  QUITE THE
CONTRARY, THE 1906 ACT REPEATEDLY REFERS TO THE COLVILLE RESERVATION IN
A MANNER THAT MAKES IT CLEAR THAT THE INTENTION OF CONGRESS WAS THAT
THE RESERVATION SHOULD CONTINUE TO EXIST AS SUCH.  (FN11)  MOREOVER,
THE 1906 ACT, UNLIKE THE 1892 ACT, PROVIDES THAT THE PROCEEDS FROM THE
DISPOSITION OF LANDS AFFECTED BY ITS PROVISIONS SHALL BE "DEPOSITED IN
THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE COLVILLE AND
CONFEDERATED TRIBES OF INDIANS BELONGING AND HAVING TRIBAL RIGHTS ON
THE COLVILLE INDIAN RESERVATION, IN THE STATE OF WASHINGTON ...  ." 
THE 1892 ACT HAD PROVIDED FOR CONGRESSIONAL POWER TO APPROPRIATE THE
NET PROCEEDS FROM THE SALE AND DISPOSITION OF LANDS IN THE NORTH HALF
OF THE ORIGINAL RESERVATION FOR THE GENERAL PUBLIC USE.  CONSEQUENTLY,
IT SEEMS CLEAR THAT THE PURPOSE OF THE 1906 ACT WAS NEITHER TO DESTROY
THE EXISTENCE OF THE DIMINISHED COLVILLE INDIAN RESERVATION NOR TO
LESSEN FEDERAL RESPONSIBILITY FOR AND JURISDICTION OVER THE INDIANS
HAVING TRIBAL RIGHTS ON THAT RESERVATION.  THE ACT DID NO MORE THAN
OPEN THE WAY FOR NON-INDIAN SETTLERS TO OWN LAND ON THE RESERVATION IN
A MANNER WHICH THE FEDERAL GOVERNMENT, ACTING AS GUARDIAN AND TRUSTEE
FOR THE INDIANS, REGARDED AS BENEFICIAL TO THE DEVELOPMENT OF ITS
WARDS. 

THAT THIS IS THE PROPER CONSTRUCTION OF THE 1906 ACT FINDS SUPPORT IN
SUBSEQUENT CONGRESSIONAL TREATMENT OF THE RESERVATION.  TIME AND TIME
AGAIN IN STATUTES ENACTED SINCE 1906, CONGRESS HAS EXPLICITLY
RECOGNIZED THE CONTINUED EXISTENCE AS A FEDERAL INDIAN RESERVATION OF
THIS SOUTH HALF OR DIMINISHED COLVILLE INDIAN RESERVATION.  (FN12)  AS
RECENTLY AS 1956, CONGRESS ENACTED A STATUTE WHICH PROVIDES THAT "THE
UNDISPOSED-OF LANDS OF THE COLVILLE INDIAN RESERVATION, WASHINGTON,
DEALT WITH BY THE ACT OF MARCH 22, 1906 (34 STAT. 80), ARE HEREBY
RESTORED TO TRIBAL OWNERSHIP TO BE HELD IN TRUST BY THE UNITED STATES
TO THE SAME EXTENT AS ALL OTHER TRIBAL LANDS ON THE EXISTING
RESERVATION, SUBJECT TO ANY EXISTING VALID RIGHTS."  (FN13)  THIS SAME
CONSTRUCTION OF THE 1906 ACT HAS BEEN ADOPTED BY THE DEPARTMENT OF
INTERIOR, THE AGENCY OF GOVERNMENT HAVING PRIMARY RESPONSIBILITY FOR
INDIAN AFFAIRS.  (FN14)  AND THE SOLICITOR GENERAL HAS URGED THIS
CONSTRUCTION UPON THE COURT IN THIS VERY CASE.  WE THEREFORE CONCLUDE
THAT THE WASHINGTON COURTS ERRED IN HOLDING THAT THE 1906 ACT DISSOLVED
THE COLVILLE INDIAN RESERVATION BECAUSE IT SEEMS CLEAR THAT THIS
RESERVATION IS STILL IN EXISTENCE. 

COUNSEL FOR THE STATE OF WASHINGTON PRESENT TWO ALTERNATIVE
CONTENTIONS WHICH, IF SOUND, WOULD SUSTAIN THE JURISDICTION OF THE
STATE OVER THE LAND HERE IN QUESTION EVEN IF THE ACT OF 1906 DID NOT
COMPLETELY DISSOLVE THE RESERVATION IN THE MANNER HELD BY THE
WASHINGTON COURTS.  THE FIRST OF THESE RESTS UPON THE ASSERTION THAT
THE PARTICULAR PARCEL OF LAND UPON WHICH THIS BURGLARY WAS COMMITTED IS
HELD UNDER A PATENT IN FEE BY A NON-INDIAN.  THE CONTENTION IS THAT,
EVEN THOUGH THE RESERVATION WAS NOT DISSOLVED COMPLETELY BY THE ACT
PERMITTING NON-INDIAN SETTLERS TO COME UPON IT, ITS LIMITS WOULD BE
DIMINISHED BY THE ACTUAL PURCHASE OF LAND WITHIN IT BY NON-INDIANS
BECAUSE LAND OWNED IN FEE BY NON-INDIANS CANNOT BE SAID TO BE RESERVED
FOR INDIANS.  THIS CONTENTION IS NOT ENTIRELY IMPLAUSIBLE ON ITS FACE
AND, INDEED, AT ONE TIME HAD THE SUPPORT OF DISTINGUISHED COMMENTATORS
ON INDIAN LAW.  (FN15)  BUT THE ISSUE HAS SINCE BEEN SQUARELY PUT TO
REST BY CONGRESSIONAL ENACTMENT OF THE CURRENTLY PREVAILING DEFINITION
OF INDIAN COUNTRY IN SEC. 1151 TO INCLUDE "ALL LAND WITHIN THE LIMITS
OF ANY INDIAN RESERVATION UNDER THE JURISDICTION OF THE UNITED STATES
GOVERNMENT, NOTWITHSTANDING THE ISSUANCE OF ANY PATENT  ...  ." 

THE STATE URGES THAT WE INTERPRET THE WORDS "NOTWITHSTANDING THE
ISSUANCE OF ANY PATENT" TO MEAN ONLY NOTWITHSTANDING THE ISSUANCE OF
ANY PATENT TO AN INDIAN.  BUT THE STATE DOES NOT SUGGEST, NOR CAN WE
FIND, ANY ADEQUATE JUSTIFICATION FOR SUCH AN INTERPRETATION.  QUITE THE
CONTRARY, IT SEEMS TO US THAT THE STRONGEST ARGUMENT AGAINST THE
EXCLUSION OF PATENTED LANDS FROM AN INDIAN RESERVATION APPLIES WITH
EQUAL FORCE TO PATENTS ISSUED TO NON-INDIANS AND INDIANS ALIKE.  FOR
THAT ARGUMENT RESTS UPON THE FACT THAT WHERE THE EXISTENCE OR
NONEXISTENCE OF FEDERAL JURISDICTION, DEPENDS UPON THE OWNERSHIP OF
PARTICULAR PARCELS OF LAND, LAW ENFORCEMENT OFFICERS OPERATING IN THE
AREA WILL FIND IT NECESSARY TO SEARCH TRACT BOOKS IN ORDER TO DETERMINE
WHETHER CRIMINAL JURISDICTION OVER SUCH PARTICULAR OFFENSE, EVEN THOUGH
COMMITTED WITHIN THE RESERVATION, IS IN THE STATE OR FEDERAL
GOVERNMENT.  (FN16)  SUCH AN IMPRACTICAL PATTERN OF CHECKERBOARD
JURISDICTION WAS AVOIDED BY THE PLAIN LANGUAGE OF SEC. 1151 AND WE SEE
NO JUSTIFICATION FOR ADOPTING AN UNWARRANTED CONSTRUCTION OF THAT
LANGUAGE WHERE THE RESULT WOULD BE MERELY TO RECREATE CONFUSION
CONGRESS SPECIFICALLY SOUGHT TO AVOID. 

THE SECOND ALTERNATIVE CONTENTION PRESSED BY THE STATE OF WASHINGTON
RESTS UPON THE FACT THAT THE LAND ON WHICH THE BURGLARY OCCURRED IS
LOCATED WITHIN THE GOVERNMENTAL TOWNSITE OF OMAK, A TOWN LAID OUT BY
THE FEDERAL GOVERNMENT PURSUANT TO AUTHORITY GRANTED IN SEC. 11 OF THE
1906 ACT.  THE STATE CONTENDS THAT WHEN THIS AUTHORIZED TOWNSITE PLOT
WAS FILED FOR RECORD IN OKANOGAN COUNTY, ALL THE LANDS ENCOMPASSED
WITHIN THE TOWNSITE WERE THEREBY DEDICATED TO THE PUBLIC INTEREST AND,
SINCE THIS DEDICATION TO THE PUBLIC IS INCONSISTENT WITH ANY
RESERVATION FOR THE INDIANS, ALL THESE LANDS BECAME SUBJECT TO THE
EXERCISE OF CRIMINAL JURISDICTION BY THE COURTS OF WASHINGTON.  THIS
CONTENTION IS NOTHING MORE THAN A VARIATION OF THE STATE'S FIRST
ALTERNATIVE CONTENTION FOR IT SIMPLY ATTEMPTS TO MAKE A SPECIAL CASE
FOR EXCLUDING FROM A RESERVATION LANDS OWNED BY TOWNS AS OPPOSED TO
LANDS OWNED BY INDIVIDUAL NON-INDIANS.  THE ARGUMENTS WHICH LED US TO
REJECT THE STATE'S FIRST ALTERNATIVE CONTENTION, THOUGH PRESENT ONLY
WITH SOMEWHAT LESS FORCE HERE, ARE NONETHELESS ENTIRELY ADEQUATE TO
REQUIRE THE SAME ANSWER TO THIS CONTENTION.  MOREOVER, THE STATE CAN
POINT TO NO LANGUAGE IN SEC. 1151'S DEFINITION OF INDIAN COUNTRY WHICH
LENDS THE SLIGHTEST SUPPORT TO THE IDEA THAT BY CREATING A TOWNSITE
WITHIN AN INDIAN RESERVATION THE FEDERAL GOVERNMENT LESSENS THE SCOPE
OF ITS RESPONSIBILITY FOR THE INDIANS LIVING ON THAT RESERVATION. 

IN UNITED STATES V. CELESTINE, (FN17) THIS COURT SAID THAT "WHEN
CONGRESS HAS ONCE ESTABLISHED A RESERVATION ALL TRACTS INCLUDED WITHIN
IT REMAIN A PART OF THE RESERVATION UNTIL SEPARATED THEREFROM BY
CONGRESS."  WE ARE UNABLE TO FIND WHERE CONGRESS HAS TAKEN AWAY FROM
THE COLVILLE INDIANS ANY PART OF THE LAND WITHIN THE BOUNDARIES OF THE
AREA WHICH HAS BEEN RECOGNIZED AS THEIR RESERVATION SINCE 1892.  SINCE
THE BURGLARY WITH WHICH PETITIONER WAS CHARGED OCCURRED ON PROPERTY
PLAINLY LOCATED WITHIN THE LIMITS OF THAT RESERVATION, THE COURTS OF
WASHINGTON HAD NO JURISDICTION TO TRY HIM FOR THAT OFFENSE. 

THE JUDGMENT OF THE WASHINGTON SUPREME COURT DENYING PETITIONER'S
PLEA FOR A WRIT OF HABEAS CORPUS IS THEREFORE REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED.    FN1  62 STAT. 757, AS AMENDED, 63 STAT. 94. 

FN2  "ANY INDIAN WHO COMMITS AGAINST THE PERSON OR PROPERTY OF
ANOTHER INDIAN OR OTHER PERSON ANY OF THE FOLLOWING OFFENSES, NAMELY,
MURDER, MANSLAUGHTER, RAPE, INCEST, ASSAULT WITH INTENT TO KILL,
ASSAULT WITH A DANGEROUS WEAPON, ARSON, BURGLARY, ROBBERY, AND LARCENY
WITHIN THE INDIAN COUNTRY, SHALL BE SUBJECT TO THE SAME LAWS AND
PENALTIES AS ALL OTHER PERSONS COMMITTING ANY OF THE ABOVE OFFENSES,
WITHIN THE EXCLUSIVE JURISDICTION OF THE UNITED STATES."  62 STAT.
758. 

FN3  55 WASH. 2D 109, 346 P.2D 669.   FN4  107 WASH. 238, 241, 181 P.
688, 689. 

FN5  365 U.S. 833. 

FN6  I KAPPLER, INDIAN AFFAIRS, LAWS AND TREATIES (2D ED.), P. 916. 

FN7  27 STAT. 62, 63. 

FN8  27 STAT., AT 64. 

FN9  34 STAT. 80. 

FN10  39 STAT. 1778. 

FN11  SEE SECS. 2, 3, 6 AND 12, 34 STAT., AT 80-82. 

FN12  SEE, E.G., 39 STAT. 123, 154-155; 39 STAT. 672; 40 STAT. 449;
41 STAT. 535; 43 STAT.  21; 54 STAT. 703; 69 STAT. 141, 143; 70 STAT.
626-627.  TWO OF THESE STATUTES, 40 STAT.  449 PASSED IN 1918 AND 41
STAT. 535 PASSED IN 1920, DO ILLUSTRATE THAT THERE MAY HAVE BEEN SOME
CONGRESSIONAL CONFUSION ON THIS ISSUE DURING THAT SHORT PERIOD OF TIME
FOR THEY REFERRED TO THE "FORMER COLVILLE INDIAN RESERVATION,
WASHINGTON." 

FN13  70 STAT. 626-627.  IT IS ALSO SIGNIFICANT THAT SEC. 5 OF THIS
1956 ACT, WHILE RECOGNIZING THE CONTINUED EXISTENCE OF THE COLVILLE
RESERVATION, CONTAINED A PROVISION LOOKING TOWARDS "THE TERMINATION OF
FEDERAL SUPERVISION OVER THE PROPERTY AND AFFAIRS OF THE CONFEDERATED
TRIBES AND THEIR MEMBERS  ...  " WITHIN A REASONABLE TIME.  THIS ACT
FOLLOWED CLOSELY A 1953 ACT, 67 STAT. 588, 590, SEC. 7 OF WHICH
PROVIDED A WAY IN WHICH THE STATE OF WASHINGTON COULD ACQUIRE
JURISDICTION OVER THE RESERVATION BY MEETING CERTAIN CONDITIONS
PRESCRIBED THERE BY CONGRESS.  SEE WILLIAMS V. LEE, 358 U. S. 217, 222,
NOTE 10.  THESE CONDITIONS HAVE NOT AS YET BEEN MET WITH RESPECT TO THE
COLVILLE RESERVATION. 

FN14  SEE, E.G., 54 I.D. 559; 59 I.D. 147; 60 I.D. 318. 

FN15  SEE, E.G., COHEN, HANDBOOK OF FEDERAL INDIAN LAW, 359 (1942). 
OF COURSE THIS WORK WAS COMPILED BEFORE THE 1948 AMENDMENT WHICH
ENACTED THE PRESENT DEFINITION OF INDIAN COUNTRY AS SET OUT IN 18
U.S.C. SEC. 1151. 

FN16  OBJECTION TO THE POSSIBILITY OF SUCH AN ADMINISTRATIVELY
UNWORKABLE DISTRIBUTION OF CRIMINAL JURISDICTION HAS BEEN VOICED BY THE
SOLICITOR OF THE DEPARTMENT OF INTERIOR.  61 I.D.  298, 304.  AND SEE
UNITED STATES V. FRANK BLACK SPOTTED HORSE, 282 F. 349, 353-354. 

FN17  215 U.S. 278, 285. 
..END :





FEDERAL TRADE COMMISSION V. HENRY BROCH & CO. 368 U.S. 360 


NO. 74.  ARGUED NOVEMBER 16, 1961 - DECIDED JANUARY 15, 1962 - 285 F.2D
764, REVERSED. 


AFTER THIS COURT HAD SUSTAINED, 363 U.S. 166, THE FINDING OF THE
FEDERAL TRADE COMMISSION THAT RESPONDENT HAD VIOLATED SEC. 2(C) OF THE
CLAYTON ACT BY REDUCING ITS COMMISSIONS ON SALES BY ONLY ONE SELLER TO
ONLY ONE BUYER, THE COURT OF APPEALS, ON REMAND, MODIFIED SUA SPONTE
THE COMMISSION'S CEASE-AND-DESIST ORDER SO AS TO ELIMINATE ALL
REFERENCES TO "ANY OTHER SELLER PRINCIPAL" AND TO "ANY OTHER BUYER,"
THUS LIMITING APPLICATION OF THE ORDER TO FUTURE SALES BY THE SAME
SELLER TO THE SAME BUYER.  HELD:  IN THE CIRCUMSTANCES OF THIS CASE,
THE ORDER SHOULD HAVE BEEN AFFIRMED IN THE FORM ENTERED BY THE
COMMISSION.  PP. 361-368. 

(A)  THE COMMISSION HAS A WIDE DISCRETION TO FORMULATE A REMEDY
ADEQUATE TO PREVENT RESPONDENT'S REPETITION OF THE VIOLATION IT WAS
FOUND TO HAVE COMMITTED, AND IT CANNOT BE SAID THAT, IN PARAGRAPH (1)
OF ITS ORDER, THE COMMISSION EXCEEDED ITS DISCRETION IN BANNING SUCH
REPETITIONS IN CONNECTION WITH TRANSACTIONS INVOLVING ANY SELLER AND
BUYER, RATHER THAN SIMPLY FORBIDDING RECURRENCE OF THE TRANSGRESSION IN
SALES BETWEEN THE SAME SELLER AND BUYER.  PP. 363-364. 

(B)  IN THE CIRCUMSTANCES OF THIS CASE AND ON THIS RECORD, THE
ATTEMPT OF THE COURT OF APPEALS TO REDRESS THE ASSERTED OVERBROADNESS
OF PARAGRAPH (2) OF THE COMMISSION'S ORDER BY THE INAPT DEVICE OF
CONFINING THAT PARAGRAPH TO SALES BETWEEN THE SAME PARTIES WAS
INAPPROPRIATE.  PP. 364-367. 

FEDERAL TRADE COMMISSION V. HENRY BROCH & CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL TRADE COMMISSION SEEKS REVERSAL OF THE ACTION OF THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN MODIFYING THE CEASE-AND
DESIST ORDER WHICH THE COMMISSION HAD ISSUED AGAINST THE RESPONDENT
BROCH ON FINDING THAT BROCH VIOLATED SEC. 2(C) OF THE CLAYTON ACT. 
(FN1)  285 F.2D 764.  THE ACTION OF THE COURT OF APPEALS WAS SUA
SPONTE, AND WAS TAKEN IN PROCEEDINGS ON REMAND WHICH FOLLOWED OUR
REVERSAL OF THAT COURT'S EARLIER ACTION SETTING ASIDE THE ORDER IN ITS
ENTIRETY BECAUSE BROCH'S CONDUCT WAS THOUGHT NOT TO VIOLATE SEC. 2(C). 
(FN2)  FEDERAL TRADE COMM'N V. BROCH & CO., 363 U.S. 166, REVERSING 261
F.2D 725.  WE GRANTED CERTIORARI, 366 U.S. 923. 

BROCH IS A BROKER SELLING FOOD PRODUCTS ON COMMISSION FOR SOME 25
SELLER PRINCIPALS.  ONE OF HIS PRINCIPALS IS CANADA FOODS, LTD., A
PROCESSOR OF APPLE CONCENTRATE.  THE COMMISSION FOUND THAT BROCH, TO
MAKE POSSIBLE CANADA FOODS' ACCEPTANCE OF AN OFFER FROM J.M. SMUCKER
CO. TO BUY AN UNUSUALLY LARGE QUANTITY OF APPLE CONCENTRATE AT LESS
THAN CANADA FOODS' ESTABLISHED PRICE, REDUCED TO 3%, FOR THIS SALE, THE
AGREED 5% RATE OF COMMISSION ORDINARILY PAYABLE BY CANADA FOODS TO
BROCH.  (FN3)  THE COMMISSION ADJUDGED, AND IN OUR PRIOR OPINION WE
AGREED, THAT THIS ACTION OF BROCH WAS, IN THE CIRCUMSTANCES, A
VIOLATION OF SEC. 2(C). 

THE COMMISSION'S ORDER WAS NOT CONFINED TO RESTRAINTS AGAINST
REPETITION OF THE PRECISE VIOLATION OF SEC. 2(C) WHICH BROCH WAS FOUND
TO HAVE COMMITTED, NOR WAS THE APPLICATION OF THE ORDER LIMITED TO
FUTURE SALES FROM CANADA FOODS TO SMUCKER.  (FN4)  PARAGRAPH (1) DID
PROHIBIT THE REPETITION OF THE PARTICULAR VIOLATION WHICH BROCH
COMMITTED, BUT IN CONNECTION WITH SALES FOR CANADA FOODS, OR FOR "ANY
OTHER SELLER PRINCIPAL," TO SMUCKER, OR "TO ANY OTHER BUYER." 
PARAGRAPH (2) ALSO EXTENDED ITS PROHIBITIONS TO SALES FROM ALL SELLER
PRINCIPALS TO ALL BUYERS, BUT WENT BEYOND PARAGRAPH (1) TO PROHIBIT
BROCH FROM "IN ANY OTHER MANNER  ...  DIRECTLY OR INDIRECTLY" PAYING,
GRANTING OR ALLOWING, IN THE WORDS OF SEC. 2(C), "ANYTHING OF VALUE AS
A COMMISSION, BROKERAGE, OR OTHER COMPENSATION, OR ANY ALLOWANCE OR
DISCOUNT IN LIEU THEREOF ...  ."  THE COURT OF APPEALS EXCISED FROM THE
ORDER ALL REFERENCES TO "ANY OTHER SELLER PRINCIPAL" AND TO "ANY OTHER
BUYER," THUS LIMITING THE ORDER'S APPLICATION TO FUTURE SALES FROM
CANADA FOODS TO SMUCKER. 

THE COMMISSION RENEWS HERE THE ARGUMENT IT MADE IN THE COURT OF
APPEALS THAT JUDICIAL MODIFICATION OF THE ORDER WAS PRECLUDED BECAUSE
BROCH FAILED TO OBJECT TO THE SCOPE OF THE ORDER BEFORE THE
COMMISSION.  BROCH DISPUTES THAT HE FAILED TO REGISTER A PROPER
OBJECTION BEFORE THE COMMISSION.  WE SEE NO REASON TO DETERMINE THE
FACT.  WE WILL ASSUME, WITHOUT DECIDING, THAT THE COURT OF APPEALS
PROPERLY PASSED UPON THE SCOPE OF THE ORDER.  WE NEVERTHELESS THINK
THAT IN THE CIRCUMSTANCES OF THIS CASE THE ORDER SHOULD HAVE BEEN
AFFIRMED IN THE FORM ENTERED BY THE COMMISSION. 

BROCH SUPPORTS THE ACTION OF THE COURT OF APPEALS AS TO PARAGRAPH (1)
OF THE ORDER WITH THE ARGUMENT THAT, SINCE THE ORDER WAS BASED ONLY
UPON FINDINGS LIMITED TO AN ASSERTED ILLEGAL PAYMENT RESPECTING A
SINGLE SALE FROM CANADA FOODS TO SMUCKER, THE COMMISSION'S BAN WAS TOO
SWEEPING IN ITS APPLICATION TO SALES FROM ALL SELLER PRINCIPALS TO ALL
BUYERS.  THERE IS NO MERIT IN THIS ARGUMENT.  THE COMMISSION HAS A WIDE
DISCRETION TO FORMULATE A REMEDY ADEQUATE TO PREVENT BROCH'S REPETITION
OF THE VIOLATION HE WAS FOUND TO HAVE COMMITTED.  SEE JACOB SIEGEL CO.
V. FEDERAL TRADE COMM'N, 327 U.S. 608, 611-612.  WE CANNOT SAY THAT THE
COMMISSION EXCEEDED ITS DISCRETION IN BANNING REPETITIONS OF BROCH'S
VIOLATION IN CONNECTION WITH TRANSACTIONS INVOLVING ANY SELLER AND
BUYER, RATHER THAN SIMPLY FORBIDDING RECURRENCE OF THE TRANSGRESSION IN
SALES BETWEEN CANADA AND SMUCKER.  FEDERAL TRADE COMM'N V. CEMENT
INSTITUTE, 333 U.S. 683, 728-729.  COMPARE UNITED STATES V. UNITED
STATES GYPSUM CO., 340 U.S. 76, 90. 

BROCH FURTHER ARGUES THAT THE COMMISSION EXCEEDED ITS DISCRETION IN
THE PROHIBITIONS EMBODIED IN PARAGRAPH (2).  HE DID NOT CROSS-PETITION
THIS COURT FOR A WRIT OF CERTIORARI AND DOES NOT HERE CHALLENGE
PARAGRAPH (2) AS MODIFIED BY THE COURT OF APPEALS.  HAD THE ONLY VICE
CLAIMED IN PARAGRAPH (2) BEEN ITS EXTENSION TO ALL SELLER PRINCIPALS
AND ALL BUYERS, THE COURT OF APPEALS' SUA SPONTE AMENDMENT WOULD FOR
REASONS ALREADY STATED HAVE BEEN CLEARLY ERRONEOUS.  BUT BROCH CONTENDS
THAT, BEFORE IT WAS RESTRICTED TO TRANSACTIONS INVOLVING CANADA AND
SMUCKER, THIS PART OF THE ORDER WAS SO BROAD AS TO JEOPARDIZE THE
CONDUCT OF HIS ENTIRE BUSINESS, IN THAT IT UNQUALIFIEDLY PROHIBITED
REDUCTIONS OF COMMISSIONS COUPLED WITH LOWER PRICES - EVEN UNIFORM
REDUCTIONS, OR REDUCTIONS WHICH ARE SERVICE- OR COST-JUSTIFIED, OR
REDUCTIONS FOR THE PURPOSE OF MEETING COMPETITION. 

IN CONSIDERING BROCH'S CHALLENGE TO PARAGRAPH (2) IT IS NECESSARY TO
OBSERVE THAT THE 1959 AMENDMENTS TO SEC. 11 OF THE CLAYTON ACT - WHICH
SUBSTITUTE FOR THE CLAYTON ACT PROVISIONS FOR ENFORCEMENT OF
ADMINISTRATIVE ORDERS THOSE IN SEC. 5 OF THE FEDERAL TRADE COMMISSION
ACT - DO NOT APPLY TO ENFORCEMENT OF THE INSTANT ORDER.  (FN5)  IN
CONSEQUENCE, BROCH CANNOT BE SUBJECTED TO PENALTIES EXCEPT FOR
VIOLATION OF AN ENFORCEMENT ORDER YET TO BE ENTERED BY AN APPROPRIATE
COURT OF APPEALS, TO BE PREDICATED UPON A DETERMINATION THAT SOME
PARTICULAR PRACTICE OF BROCH VIOLATED THE COMMISSION'S ORDER.  THUS
BROCH IS NOT, BY VIRTUE OF THAT ORDER, PRESENTLY ACTING UNDER THE RISK
OF INCURRING ANY PENALTY WITHOUT FURTHER ADMINISTRATIVE AND JUDICIAL
CONSIDERATION AND INTERPRETATION, DESPITE THE FACT THAT HE HAS ALREADY
RECEIVED DETERMINATION OF HIS PETITION FOR REVIEW.  FEDERAL TRADE
COMM'N V. RUBEROID CO., 343 U.S. 470, 477-480.  (FN6) 

UPON ANY FUTURE ENFORCEMENT PROCEEDING, THE COMMISSION AND THE COURT
OF APPEALS WILL HAVE READY AT HAND INTERPRETIVE TOOLS - THE EMPLOYMENT
OF WHICH WE HAVE PREVIOUSLY SANCTIONED - FOR USE IN TAILORING THE
ORDER, IN THE SETTING OF A SPECIFIC ASSERTED VIOLATION, SO AS TO MEET
THE LEGITIMATE NEEDS OF THE CASE.  THEY WILL BE FREE TO CONSTRUE THE
ORDER AS DESIGNED STRICTLY TO COPE WITH THE THREAT OF FUTURE VIOLATIONS
IDENTICAL WITH OR LIKE OR RELATED TO THE VIOLATIONS WHICH BROCH WAS
FOUND TO HAVE COMMITTED, (FN7) OR AS FORBIDDING "NO ACTIVITIES EXCEPT
THOSE WHICH IF CONTINUED WOULD DIRECTLY AID IN PERPETUATING THE SAME
OLD UNLAWFUL PRACTICES."  FEDERAL TRADE COMM'N V. CEMENT INSTITUTE, 333
U.S. 683, 727.  THEY NEED NOT - AS WE HAVE ALREADY MADE CLEAR - READ
THE ORDER AS DENYING TO BROCH THE BENEFIT OF STATUTORY DEFENSES OR
EXCEPTIONS.  FEDERAL TRADE COMM'N V. RUBEROID CO., SUPRA, AT 475-476;
FEDERAL TRADE COMM'N V. NATIONAL LEAD CO., 352 U.S. 419, 426.  (FN8)
NOR NEED THE ORDER BE CONSTRUED AS PROHIBITING ANYTHING AS CLEARLY
LAWFUL AS A UNIFORM REDUCTION IN COMMISSIONS.  (FN9)  AND, WE REPEAT,
THESE VARIOUS INTERPRETIVE AIDS WILL HAVE TO BE BROUGHT TO BEAR BY A
COURT OF APPEALS UPON A PARTICULAR PRACTICE OF BROCH, AND WILL HAVE TO
YIELD THE ANNOUNCED RESULT THAT SUCH PRACTICE VIOLATES THE ORDER,
BEFORE BROCH CAN BE SUBJECTED TO PENALTIES BECAUSE OF STILL A SECOND
REPETITION OF THE VIOLATION. 

IN THIS SITUATION, AND ON THIS RECORD, WE HOLD THAT THE ATTEMPT OF
THE COURT OF APPEALS TO REDRESS THE ASSERTED OVERBROADNESS BY THE INAPT
DEVICE OF CONFINING PARAGRAPH (2) TO CANADA'S SALES TO SMUCKER WAS
INAPPROPRIATE AND, INDEED, ANY ATTEMPT TO RESTRICT THE SCOPE OF THE
ORDER WOULD HAVE BEEN PREMATURE. 

WE DO NOT WISH TO BE UNDERSTOOD, HOWEVER, AS HOLDING THAT THE
GENERALIZED LANGUAGE OF PARAGRAPH (2) WOULD NECESSARILY WITHSTAND
SCRUTINY UNDER THE 1959 AMENDMENTS.  (FN10)  THE SEVERITY OF POSSIBLE
PENALTIES PRESCRIBED BY THE AMENDMENTS FOR VIOLATIONS OF ORDERS WHICH
HAVE BECOME FINAL UNDERLINES THE NECESSITY FOR FASHIONING ORDERS WHICH
ARE, AT THE OUTSET, SUFFICIENTLY CLEAR AND PRECISE TO AVOID RAISING
SERIOUS QUESTIONS AS TO THEIR MEANING AND APPLICATION.  (FN11)  SEE
LABOR BOARD V. EXPRESS PUB. CO., 312 U.S. 426, 435-437; FEDERAL TRADE
COMM'N V. CEMENT INSTITUTE, 333 U.S. 683, 726; FEDERAL TRADE COMM'N V.
MORTON SALT CO., 334 U.S. 37, 54.  COMPARE NEW HAVEN R. CO. V.
INTERSTATE COMMERCE COMM'N, 200 U.S. 361, 404; SWIFT & CO. V. UNITED
STATES, 196 U.S. 375, 400-401. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED WITH DIRECTION TO AFFIRM THE ORDER OF THE FEDERAL TRADE
COMMISSION.  IT IS SO ORDERED. 

FN1  SECTION 2(C) AS AMENDED BY THE ROBINSON-PATMAN ACT, 49 STAT.
1527, 15 U.S.C. SEC. 13(C), IS AS FOLLOWS: 

"(C)  PAYMENT OR ACCEPTANCE OF COMMISSION, BROKERAGE OR OTHER
COMPENSATION. 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, TO PAY OR GRANT, OR TO RECEIVE OR ACCEPT,
ANYTHING OF VALUE AS A COMMISSION, BROKERAGE, OR OTHER COMPENSATION, OR
ANY ALLOWANCE OR DISCOUNT IN LIEU THEREOF, EXCEPT FOR SERVICES RENDERED
IN CONNECTION WITH THE SALE OR PURCHASE OF GOODS, WARES, OR
MERCHANDISE, EITHER TO THE OTHER PARTY TO SUCH TRANSACTION OR TO AN
AGENT, REPRESENTATIVE, OR OTHER INTERMEDIARY THEREIN WHERE SUCH
INTERMEDIARY IS ACTING IN FACT FOR OR IN BEHALF, OR IS SUBJECT TO THE
DIRECT OR INDIRECT CONTROL, OF ANY PARTY TO SUCH TRANSACTION OTHER THAN
THE PERSON BY WHOM SUCH COMPENSATION IS SO GRANTED OR PAID." 

FN2  FOLLOWING THE REMAND BROCH FILED A MOTION WHICH SOUGHT, INTER
ALIA, A MODIFICATION OF THE ORDER ON THE GROUND OF ITS ALLEGEDLY
"UNDULY BROAD SCOPE."  IN OPPOSING THE MOTION THE COMMISSION CLAIMED
THAT BROCH HAD NOT OBJECTED TO THE SCOPE OF THE ORDER IN THE
PROCEEDINGS BEFORE THE COMMISSION OR IN THE ORIGINAL REVIEW
PROCEEDINGS, AND WAS THEREFORE NOT ENTITLED TO HAVE THE COURT ENTERTAIN
THE MOTION.  BROCH'S MOTION WAS DENIED BUT THE ORDER EMBODYING THE
DENIAL ALSO INCLUDED THE PROVISION QUESTIONED HERE AMENDING THE ORDER
"ON THE COURT'S OWN MOTION." 

FN3  THERE WAS EVIDENCE IN THE PROCEEDINGS BEFORE THE COMMISSION
THAT, FOLLOWING THE TRANSACTION DESCRIBED ABOVE, BROCH CONTINUED TO
SELL APPLE CONCENTRATE TO SMUCKER ON BEHALF OF CANADA FOODS AT A
REDUCED PRICE AND TO RECEIVE A REDUCED COMMISSION OF 3% ON SUCH SALES. 

FN4  THE COMMISSION'S ORDER WAS AS FOLLOWS: 

"IT IS ORDERED THAT RESPONDENTS HENRY BROCH AND OSCAR ADLER,
COPARTNERS TRADING AS HENRY BROCH & CO., THEIR REPRESENTATIVES, AGENTS,
OR EMPLOYEES, DIRECTLY OR THROUGH ANY CORPORATE OR OTHER DEVICE, IN
CONNECTION WITH THE SALE OF FOOD OR FOOD PRODUCTS FOR CANADA FOODS
LTD., OR ANY OTHER SELLER PRINCIPAL, IN COMMERCE, AS 'COMMERCE' IS
DEFINED IN THE CLAYTON ACT, AS AMENDED, DO FORTHWITH CEASE AND DESIST
FROM: 

"(1)  PAYING, GRANTING OR ALLOWING, DIRECTLY OR INDIRECTLY, TO THE
J.M. SMUCKER CO., OR TO ANY OTHER BUYER, OR TO ANYONE ACTING FOR OR IN
BEHALF OF OR WHO IS SUBJECT TO THE DIRECT OR INDIRECT CONTROL OF SUCH
BUYER, ANY ALLOWANCE OR DISCOUNT IN LIEU OF BROKERAGE, OR ANY PART OR
PERCENTAGE THEREOF, BY SELLING ANY FOOD OR FOOD PRODUCTS TO SUCH BUYER
AT PRICES REFLECTING A REDUCTION FROM THE PRICES AT WHICH SALES OF SUCH
FOODS ARE CURRENTLY BEING EFFECTED BY RESPONDENTS FOR CANADA FOODS LTD.
OR ANY OTHER SELLER PRINCIPAL, AS THE CASE MAY BE, WHERE SUCH REDUCTION
IN PRICE IS ACCOMPANIED BY A REDUCTION IN THE REGULAR RATE OF
COMMISSION, BROKERAGE OR OTHER COMPENSATION CURRENTLY BEING PAID TO
RESPONDENTS BY SUCH SELLER PRINCIPAL FOR BROKERAGE SERVICES; OR: 

"(2)  IN ANY OTHER MANNER, PAYING, GRANTING OR ALLOWING, DIRECTLY OR
INDIRECTLY, TO THE J.M. SMUCKER CO., OR TO ANY OTHER BUYER, OR TO
ANYONE ACTING FOR OR IN BEHALF OF OR WHO IS SUBJECT TO THE DIRECT OR
INDIRECT CONTROL OF SUCH BUYER, ANYTHING OF VALUE AS A COMMISSION,
BROKERAGE OR OTHER COMPENSATION OR ANY ALLOWANCE OR DISCOUNT IN LIEU
THEREOF UPON, OR IN CONNECTION WITH, ANY SALE OF FOOD OR FOOD PRODUCTS
TO SUCH BUYER FOR ITS OWN ACCOUNT." 

FN5  38 STAT. 734, 15 U.S.C. SEC. 21, AS AMENDED JULY 23, 1959, PUB.
L. 86-107, 73 STAT. 243.  THE ORDER HEREIN WAS ENTERED BY THE
COMMISSION ON DECEMBER 10, 1957.  THE PROCEDURES ENACTED BY THE 1959
AMENDMENTS THEREFORE DO NOT APPLY TO  IT.  SEE SPERRY RAND CORP. V.
FEDERAL TRADE COMM'N, 110 U.S. APP. D.C. 1, 288 F.2D 403. 

FN6  THE 1959 AMENDMENTS RESULTED FROM A CONGRESSIONAL CONCLUSION
THAT THE FORMER SEC. 11 PROCEDURES WERE TOO CUMBERSOME TO ASSURE
EFFECTIVE ENFORCEMENT OF AGENCY ORDERS.  IT WAS SAID IN THE HOUSE
COMMITTEE REPORT ACCOMPANYING THE 1959 AMENDMENTS: 

"THE CLAYTON ACT, IN ITS PRESENT ENFORCEMENT PROCEDURES, PERMITS A
PERSON TO ENGAGE IN THE SAME ILLEGAL PRACTICES THREE TIMES BEFORE
EFFECTIVE LEGAL PENALTIES CAN BE APPLIED AS A RESULT OF ACTION BY THE
COMMISSION OR BOARD VESTED WITH JURISDICTION.  FIRST, IN ORDER TO ISSUE
AND SERVE A CEASE-AND-DESIST ORDER INITIALLY, THE COMMISSION OR BOARD
MUST INVESTIGATE AND PROVE THAT THE RESPONDENT HAS VIOLATED THE
PROHIBITIONS OF THE CLAYTON ACT.  NO PROVISION OF THE CLAYTON ACT,
HOWEVER, MAKES THE COMMISSION OR BOARD'S CEASE-AND-DESIST ORDER FINAL
IN THE ABSENCE OF AN APPEAL BY THE RESPONDENT FOR JUDICIAL REVIEW.  AT
THE PRESENT TIME, THE CLAYTON ACT CONTAINS NO PROCEDURE BY WHICH THE
COMMISSION OR BOARD MAY SECURE CIVIL PENALTIES FOR VIOLATIONS OF ITS
ORDERS.   "SECOND, BEFORE THE COMMISSION OR BOARD MAY OBTAIN A COURT
RULING THAT COMMANDS OBEDIENCE TO ITS CEASE-AND-DESIST ORDER, IT MUST
AGAIN INVESTIGATE AND PROVE THAT THE RESPONDENT HAS VIOLATED BOTH THE
ORDER AND THE CLAYTON ACT.  THE JURISDICTION OF THE COURT OF APPEALS,
UNDER THE PRESENT PROVISIONS OF CLAYTON ACT SECTION 11, CANNOT BE
INVOKED BY THE COMMISSION OR BOARD UNLESS A VIOLATION OF THE CEASE-AND
DESIST ORDER IS FIRST SHOWN. 

"THIRD, ENFORCEMENT OF THE COURT'S ORDER MUST BE SECURED IN A
SUBSEQUENT CONTEMPT PROCEEDING, WHICH REQUIRES PROOF THAT NEW
ACTIVITIES OF THE RESPONDENT HAVE VIOLATED THE COURT'S ORDER.  THIS
ENTAILS A THIRD HEARING BEFORE THE COMMISSION AND A REVIEW THEREOF BY
THE COURT OF APPEALS. 

"IN CONTRAST, THE PROCEDURES THAT ARE CONTAINED IN THE FEDERAL TRADE
COMMISSION ACT FOR ENFORCEMENT OF CEASE-AND-DESIST ORDERS ISSUED
THEREUNDER ARE MUCH SIMPLER AND MORE DIRECT.  A CEASE-AND-DESIST ORDER
ISSUED PURSUANT TO SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT, AS
AMENDED, BECOMES FINAL UPON THE EXPIRATION OF THE TIME ALLOWED FOR
FILING A PETITION FOR REVIEW, IF NO SUCH PETITION IS FILED WITHIN THAT
TIME."  H.R. REP. NO. 580, 86TH CONG., 1ST SESS. 4.  SEE ALSO S. REP.
NO. 83, 86TH CONG., 1ST SESS. 2-3. 

FN7  CF. FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37, 51-53;
FEDERAL TRADE COMM'N V. NATIONAL LEAD CO., 352 U.S. 419, 430-431.  "IN
CARRYING OUT ITS FUNCTION THE COMMISSION IS NOT LIMITED TO PROHIBITING
THE ILLEGAL PRACTICE IN THE PRECISE FORM IN WHICH IT IS FOUND TO HAVE
EXISTED IN THE PAST.  IF THE COMMISSION IS TO ATTAIN THE OBJECTIVES
CONGRESS ENVISIONED, IT CANNOT BE REQUIRED TO CONFINE ITS ROAD BLOCK TO
THE NARROW LANE THE TRANSGRESSOR HAS TRAVELED; IT MUST BE ALLOWED
EFFECTIVELY TO CLOSE ALL ROADS TO THE PROHIBITED GOAL, SO THAT ITS
ORDER MAY NOT BE BY-PASSED WITH IMPUNITY."  FEDERAL TRADE COMM'N V.
RUBEROID CO., 343 U.S. 470, 473. 

FN8  BROCH COMPLAINS OF THE ORDER'S OMISSION OF ANY REFERENCE TO THE
STATUTORY EXCEPTION FOR BROKERAGE "FOR SERVICES RENDERED IN CONNECTION
WITH THE SALE OR PURCHASE OF GOODS  ...  ."  WE MADE IT CLEAR IN OUR
PRIOR OPINION THAT THE ORDER NEED NOT BE READ AS PROHIBITING
TRANSACTIONS TO WHICH THE STATUTORY EXCEPTION APPLIES.  363 U.S., AT
173, 177, N. 19.  NOR NEED THE ORDER, WHEN VIEWED IN THE CONTEXT OF
BROCH'S VIOLATION, BE READ AS PROHIBITING BROCH FROM REDUCING
COMMISSIONS COMPETITIVELY TO GAIN A PARTICULAR BUYER'S ACCOUNT, IF THE
COMPETITIVE SETTING WOULD OTHERWISE HAVE AFFORDED A DEFENSE TO A CHARGE
UNDER SEC. 2(C). 

FN9  "HAD RESPONDENT  ...  AGREED TO ACCEPT A 3% COMMISSION ON ALL
SALES TO ALL BUYERS THERE PLAINLY WOULD BE NO ROOM FOR FINDING THAT THE
PRICE REDUCTIONS WERE VIOLATIONS OF SEC. 2(C).  NEITHER THE LEGISLATIVE
HISTORY NOR THE PURPOSES OF THE ACT WOULD REQUIRE SUCH AN ABSURD
RESULT, AND NEITHER THE COMMISSION NOR THE COURTS HAVE EVER SUGGESTED
IT."  363 U.S., AT 176. 

FN10  SEE NOTES 5, 6, SUPRA. 

FN11  THE PENALTIES UNDER THE 1959 AMENDMENTS ARE AS FOLLOWS: 

"ANY PERSON WHO VIOLATES ANY ORDER ISSUED BY THE COMMISSION OR BOARD
UNDER SUBSECTION (B) OF THIS SECTION AFTER SUCH ORDER HAS BECOME FINAL,
AND WHILE SUCH ORDER IS IN EFFECT, SHALL FORFEIT AND PAY TO THE UNITED
STATES A CIVIL PENALTY OF NOT MORE THAN $5,000 FOR EACH VIOLATION  ...
.  EACH SEPARATE VIOLATION OF ANY SUCH ORDER SHALL BE A SEPARATE
OFFENSE, EXCEPT THAT IN THE CASE OF A VIOLATION THROUGH CONTINUING
FAILURE OR NEGLECT TO OBEY A FINAL ORDER OF THE COMMISSION OR BOARD
EACH DAY OF CONTINUANCE OF SUCH FAILURE OR NEGLECT SHALL BE DEEMED A
SEPARATE OFFENSE." 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER AND MR.
JUSTICE HARLAN JOIN, DISSENTING. 

ON THE COURT'S ASSUMPTION THAT THE COURT OF APPEALS HAD POWER, SUA
SPONTE, TO MODIFY THE DECREE, I WOULD AFFIRM.  THIS COURT REVERSED THE
JUDGMENT OF THE COURT OF APPEALS ON THE PRIOR APPEAL LARGELY ON THE
VERY NARROW GROUND THAT PETITIONER'S "REDUCTION IN BROKERAGE WAS MADE
TO OBTAIN THIS PARTICULAR ORDER AND THIS ORDER ONLY  ...  ," 363 U.S.
166, 176, AND THEREFORE THE COURT OF APPEALS WAS JUSTIFIED IN LIMITING
THE COMMISSION'S ORDER ACCORDINGLY. 

WHEN ITS ATTENTION IS FOCUSED TO THE APPROPRIATENESS OF THE SCOPE OF
AN ORDER TO RESTRAIN ILLEGALITY, THE COMMISSION HAS SHOWN RESPONSIBLE
AWARENESS OF THE DIFFERENCE IN SHAPING ITS ORDER TO A SITUATION LIKE
THE ONE PRESENTED BY THIS CASE, TO WIT:  A SPECIFIC, CLOSELY CONFINED
ILLEGALITY AS DISTINGUISHED FROM A WIDESPREAD ILLEGAL PRACTICE INIMICAL
TO THE PUBLIC INTEREST.  SEE OPINION OF THE COMMISSION IN IN RE COLGATE
PALMOLIVE CO. AND TED BATES & CO., DOCKET NO. 7736, DECEMBER 29, 1961,
CCH TRADE REG. REP., PARA. 15,643, PP. 20,474, 20,485.  SO, TOO, HAS
THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SHOWN
RESPONSIVE AWARENESS AND APPRECIATION OF THAT DISTINCTIVE DIFFERENCE. 
SWANEE PAPER CORP. V. FEDERAL TRADE COMM'N, 291 F.2D 833, 837-838. 
..END :









UNITED STATES V. DRUM 368 U.S. 370 


NO. 23.  ARGUED OCTOBER 11-12, 1961 - DECIDED JANUARY 15, 1962* - 193 F.
SUPP. 275, REVERSED. 

*TOGETHER WITH NO. 24, REGULAR COMMON CARRIER CONFERENCE OF AMERICAN
TRUCKING ASSOCIATIONS, INC., V. DRUM ET AL., ALSO ON APPEAL FROM THE
SAME COURT. 


EACH OF THE INDIVIDUAL APPELLEES OWNS A TRUCK TRACTOR WHICH HE
OPERATES UNDER A LEASING ARRANGEMENT WITH A FURNITURE MANUFACTURER IN
THE INTERSTATE TRANSPORTATION OF THE MANUFACTURER'S FURNITURE AND IN
THE BACKHAUL OF RAW MATERIALS USED IN THE MANUFACTURE OF ITS PRODUCTS. 
APPELLEES ARE COMPENSATED FOR THE USE OF THEIR TRACTORS AND FOR THEIR
SERVICES AS DRIVERS SOLELY ON THE BASIS OF FIXED RATES PER MILE
DRIVEN.  THEY BEAR ALL OF THE OPERATING COSTS OF THE TRANSPORTATION AND
ASSUME THE FINANCIAL RISK OF PROFIT OR LOSS THEREON.  THE MANUFACTURER
HAS A COLLECTIVE-BARGAINING AGREEMENT WITH THE UNION REPRESENTING
APPELLEES AND GRANTS THEM CERTAIN BENEFITS OF EMPLOYEES, INCLUDING,
INTER ALIA, SENIORITY RIGHTS, JOB SECURITY, DEATH BENEFITS, VACATION
PAY AND SOCIAL SECURITY AND WORKMEN'S COMPENSATION COVERAGE.  THE
INTERSTATE COMMERCE COMMISSION FOUND THAT APPELLEES ARE "CONTRACT
CARRIERS" WITHIN THE MEANING OF SEC. 203(A)(15) OF THE INTERSTATE
COMMERCE ACT AND ARE SUBJECT TO THE LICENSING REQUIREMENTS OF SEC.
209(A)(1), AND IT ORDERED THEM TO CEASE AND DESIST FROM OPERATING
WITHOUT PERMITS.  THE DISTRICT COURT HELD THAT THE TRANSPORTATION WAS
BY THE MANUFACTURER AS A "PRIVATE CARRIER," WITHIN THE MEANING OF SEC.
203(A)(17), AND IT SET ASIDE THE COMMISSION'S ORDER.  HELD:  THE
COMMISSION'S FINDING IS SUSTAINED AND THE JUDGMENT OF THE DISTRICT
COURT IS REVERSED.  PP. 371-386. 

(A)  THE COMMISSION'S CONCLUSION THAT THE FINANCIAL RISKS OF THIS
TRANSPORTATION HAD BEEN SHIFTED FROM THE MANUFACTURER TO THE OWNER
OPERATORS TO AN EXTENT WHICH RENDERED THE SANCTIONING OF THE OPERATION
AS PRIVATE CARRIAGE BY THE MANUFACTURER A DEPARTURE FROM THE STATUTORY
DESIGN WAS WELL WITHIN THE RANGE OF THE RESPONSIBILITY ASSIGNED BY
CONGRESS TO THE COMMISSION.  PP. 383-385. 

(B)  IF THE DISTRICT COURT INTENDED TO HOLD THAT THE COMMISSION WAS
CONFINED TO THE "CONTROL" TEST - I.E., WHETHER THE MANUFACTURER HAD ANY
RIGHT TO CONTROL, DIRECT OR DOMINATE THE TRANSPORTATION - IT WAS IN
ERROR, SINCE A FINDING OF SHIPPER CONTROL DOES NOT REQUIRE A RESOLUTION
OF THE ULTIMATE ISSUE IN THE SHIPPER'S FAVOR.  PP. 381-383, 385-386. 

(C)  IF THE DISTRICT COURT MEANT TO SUBSTITUTE ITS JUDGMENT FOR THAT
OF THE COMMISSION ON THE QUESTION OF SUBSTANCE ON THIS RECORD, IT
INDULGED IN AN UNWARRANTED INCURSION INTO THE ADMINISTRATIVE DOMAIN. 
P. 386. 

UNITED STATES ET AL. V. DRUM ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN AN INVESTIGATION INITIATED BY IT UNDER 49 U.S.C. SEC. 304(C),
(FN1) THE INTERSTATE COMMERCE COMMISSION HELD THAT APPELLEES WHO LEASED
THEIR MOTOR VEHICLES AND HIRED THEIR SERVICES AS DRIVERS TO THE
APPELLEE OKLAHOMA FURNITURE MANUFACTURING COMPANY (HEREINAFTER
"OKLAHOMA") WERE CONTRACT CARRIERS WITHIN 49 U.S.C. SEC. 303(A)(15)
(FN2) AND SUBJECT TO THE PERMIT REQUIREMENTS OF 49 U.S.C. SEC.
309(A)(1).  (FN3)  79 M.C.C. 403. 

A THREE-JUDGE COURT IN THE DISTRICT COURT FOR THE WESTERN DISTRICT OF
OKLAHOMA, CONVENED UNDER 28 U.S.C. SEC. 2325 IN A PROCEEDING COMMENCED
BY APPELLEES PURSUANT TO 28 U.S.C. SECS. 1336 AND 1398, (FN4) SET ASIDE
THE CEASE-AND-DESIST ORDER BY WHICH THE COMMISSION REQUIRED THE LESSORS
TO REFRAIN FROM THEIR OPERATIONS UNLESS AND UNTIL THEY RECEIVED
APPROPRIATE AUTHORITY THEREFOR FROM THE COMMISSION.  193 F. SUPP. 275. 
THE DISTRICT COURT HELD THAT OKLAHOMA WAS ENGAGED IN PRIVATE CARRIAGE
AS DEFINED IN 49 U.S.C. SEC. 303(A)(17).  (FN5)  WE NOTED PROBABLE
JURISDICTION OF THE APPEALS LODGED HERE UNDER 28 U.S.C. SEC. 1253.  365
U.S. 839. 

THE MOTOR CARRIER ACT OF 1935 (FN6) SUBJECTED MANY ASPECTS OF
INTERSTATE MOTOR CARRIAGE - INCLUDING ENTRY OF PERSONS INTO THE
BUSINESS OF FOR-HIRE MOTOR TRANSPORTATION AND THE OVERSIGHT OF MOTOR
CARRIER RATES - TO ADMINISTRATIVE CONTROLS, ON THE PREMISE THAT THE
PUBLIC INTEREST IN MAINTAINING A STABLE TRANSPORTATION INDUSTRY SO
REQUIRED.  (FN7)  HOWEVER, ALTHOUGH AWARE THAT "BOTH CONTRACT CARRIERS
AND COMMON CARRIERS  ...  ARE CONTINUALLY FACED WITH ACTUAL OR
POTENTIAL COMPETITION FROM PRIVATE TRUCK OPERATION  ...  ."  (FN8)
CONGRESS TOOK COGNIZANCE OF A SHIPPER'S INTEREST IN FURNISHING HIS OWN
TRANSPORTATION, (FN9) AND LIMITED THE APPLICATION OF THE LICENSING
REQUIREMENTS TO THOSE PERSONS WHO PROVIDE "TRANSPORTATION  ...  FOR
COMPENSATION" (FN10) OR, UNDER A 1957 AMENDMENT, "FOR-HIRE
TRANSPORTATION."  (FN11)  THE COMMISSION, THEREFORE, HAS HAD TO DECIDE
WHETHER A PARTICULAR ARRANGEMENT GIVES RISE TO THAT "FOR-HIRE" CARRIAGE
WHICH IS SUBJECT TO ECONOMIC REGULATION IN THE PUBLIC INTEREST, OR
WHETHER IT IS, IN FACT, PRIVATE CARRIAGE AS TO WHICH CONGRESS
DETERMINED THAT THE SHIPPER'S INTEREST IN CARRYING HIS OWN GOODS SHOULD
PREVAIL.  THIS CASE IS A RECENT INSTANCE OF THE COMMISSION'S DEVELOPING
TECHNIQUE OF DECISION. 

FROM THE BEGINNING UNDERLYING PRINCIPLES HAVE BEEN, AND HAVE
REMAINED, CLEAR.  A PRIMARY OBJECTIVE OF THE SCHEME OF ECONOMIC
REGULATION IS TO ASSURE THAT SHIPPERS GENERALLY WILL BE PROVIDED A
HEALTHY SYSTEM OF MOTOR CARRIAGE TO WHICH THEY MAY RESORT TO GET THEIR
GOODS TO MARKET.  THIS IS THE GOAL NOT ONLY OF COMMISSION SURVEILLANCE
OF LICENSED MOTOR CARRIERS AS TO RATES AND SERVICES, BUT ALSO OF THE
REQUIREMENT THAT THE PERSONS FROM WHOM SHIPPERS WOULD PURCHASE A
TRANSPORTATION SERVICE DESIGNED TO MEET THE SHIPPERS' DISTINCTIVE NEEDS
MUST FIRST SECURE COMMISSION APPROVAL.  SEE CONTRACTS OF CONTRACT
CARRIERS, 1 M.C.C. 628, 629; KEYSTONE TRANSPORTATION CO., 19 M.C.C.
475, 490-492.  THE STATUTORY REQUIREMENT THAT A CERTIFICATE OR PERMIT
BE ISSUED BEFORE ANY NEW FOR-HIRE CARRIAGE MAY BE UNDERTAKEN BESPEAKS
CONGRESSIONAL CONCERN OVER DIVERSIONS OF TRAFFIC WHICH MAY HARM
EXISTING CARRIERS UPON WHOM THE BULK OF SHIPPERS MUST DEPEND FOR ACCESS
TO MARKET.  (FN12)  ACCORDINGLY, THE STATUTORY DEFINITIONS, WHILE
CONFIRMING THAT A SHIPPER IS FREE TO TRANSPORT HIS OWN GOODS WITHOUT
UTILIZING A REGULATED INSTRUMENTALITY, AT THE SAME TIME DENY HIM THE
USE OF "FOR COMPENSATION" OR "FOR-HIRE" TRANSPORTATION PURCHASED FROM A
PERSON NOT LICENSED BY THE INTERSTATE COMMERCE COMMISSION.  BECAUSE THE
DEFINITIONS MUST, IF THEY ARE TO SERVE THEIR PURPOSE, IMPOSE PRACTICAL
LIMITATIONS UPON UNREGULATED COMPETITION IN A REGULATED INDUSTRY, THEY
ARE TO BE INTERPRETED IN A MANNER WHICH TRANSCENDS THE MERELY FORMAL. 
FROM THE OUTSET THE COMMISSION HAS CORRECTLY INTERPRETED THEM AS
IMPORTING THAT A PURPORTED PRIVATE CARRIER WHO HIRES THE
INSTRUMENTALITIES OF TRANSPORTATION FROM ANOTHER MUST - IF HE IS NOT TO
UTILIZE A LICENSED CARRIER - ASSUME IN SIGNIFICANT MEASURE THE
CHARACTERISTIC BURDENS OF THE TRANSPORTATION BUSINESS.  THE PROBLEM IS
ONE OF DETERMINING - BY REFERENCE TO THE CLEAR BUT BROAD REMEDIAL
PURPOSE OF A REGULATORY STATUTE COMMITTED TO AGENCY ADMINISTRATION -
THE APPLICABILITY TO A NARROW FACT SITUATION OF IMPRECISE DEFINITIONAL
LANGUAGE WHICH DELINEATES THE COVERAGE OF THE MEASURE.  PRIVATE
CARRIERS ARE DEFINED SIMPLY AS TRANSPORTERS OF PROPERTY WHO ARE NEITHER
COMMON NOR CONTRACT CARRIERS; AND THE STATUTE WILL YIELD UP NO BETTER
VERBAL GUIDE TO THE REACH OF ITS LICENSING PROVISIONS THAN
TRANSPORTATION "FOR COMPENSATION" OR "FOR-HIRE."  COMPARE BATES & GUILD
CO. V. PAYNE, 194 U.S. 106; ROCHESTER TEL. CORP. V. UNITED STATES, 307
U.S. 125, 144-146; GRAY V. POWELL, 314 U.S. 402, 412-413; LABOR BOARD
V. HEARST PUBLICATIONS, 322 U.S. 111, 130-131.  BECAUSE THE
COMMISSION'S RESOLUTION OF THE ISSUE DOES NOT SEEM TO US TO VIOLATE THE
COHERENCE OF THE BODY OF ADMINISTRATIVE AND JUDICIAL PRECEDENTS SO FAR
DEVELOPED IN THIS AREA, WE ARE OF THE OPINION THAT THERE WAS NO
OCCASION FOR THE DISTRICT COURT TO DISTURB THE CONCLUSION REACHED BY
THE COMMISSION.  WE THEREFORE REVERSE THE DISTRICT COURT'S JUDGMENT. 

IT WAS A WISH TO RID ITSELF OF CERTAIN BURDENS OF ITS EXISTING
TRANSPORTATION OPERATION WHICH CAUSED OKLAHOMA TO ENTER INTO THE
ARRANGEMENT HERE INVOLVED.  PRIOR TO 1952 OKLAHOMA, A MANUFACTURER OF
LOW-COST FURNITURE, HAD MAINTAINED A FULL FLEET OF TRACTORS AND
TRAILERS IN WHICH ALL ITS FURNITURE WAS SHIPPED.  A FULL CREW OF
DRIVERS WAS EMPLOYED.  OKLAHOMA ABSORBED ALL THE EXPENSES, AND CARRIED
ALL THE RISKS, OF ITS TRANSPORTATION OPERATION.  IT UTILIZED A SYSTEM
OF DELIVERED PRICING WHICH ELIMINATED TRANSPORTATION CHARGES AS AN
IDENTIFIABLE ELEMENT OF THE PRICE OF ITS FURNITURE.  ITS STATUS AS A
PRIVATE CARRIER EXEMPT FROM LICENSING REQUIREMENTS WAS NEVER QUESTIONED
UNDER THE PRE-1952 ARRANGEMENT.  BUT THAT METHOD OF OPERATION WAS FOUND
TO INCORPORATE CERTAIN BURDENSOME DISADVANTAGES.  OKLAHOMA DISCOVERED
THAT ITS EMPLOYEE-DRIVERS WERE EMBEZZLING ITS FUNDS THROUGH THE MISUSE
OF CREDIT ARRANGEMENTS WHICH THE COMPANY HAD ESTABLISHED FOR THE
PURCHASING OF FUEL AND MINOR REPAIRS ON THE ROAD.  IN ADDITION,
OKLAHOMA BECAME CONVINCED THAT ITS EQUIPMENT WAS TOO OFTEN INVOLVED IN
ACCIDENTS, AND TOO OFTEN IN NEED OF REPAIRS AND MAINTENANCE WHICH COULD
HAVE BEEN AVOIDED BY CAREFUL OPERATION. 

IN AN EFFORT TO ELIMINATE THESE DISADVANTAGES, OKLAHOMA IN 1952
ALTERED ITS MODUS OPERANDI.  IT DECIDED TO TERMINATE ITS INVESTMENT IN
TRACTORS FOR LONG HAULS AND, INSTEAD, TO LEASE THEM FROM THE DRIVERS. 
THE ORIGINAL LEASE AGREEMENTS ENCOUNTERED DIFFICULTY WHEN, IN 1956, THE
SUPREME COURT OF ARKANSAS HELD THAT THE RESULTANT OPERATION CONSTITUTED
FOR-HIRE CARRIAGE BY THE OWNER-OPERATORS WHICH REQUIRED LICENSING UNDER
THE APPLICABLE ARKANSAS STATUTES.  (FN13)  FOLLOWING THIS TURN OF
EVENTS, OKLAHOMA REVISED THE LEASES, AND ALSO ENTERED INTO A COLLECTIVE
AGREEMENT WITH THE UNION REPRESENTING ITS WORKERS SETTING FORTH THE
TERMS UNDER WHICH THE OWNER-OPERATORS WERE TO BE EMPLOYED AS DRIVERS. 
THE CURRENT LEASE AND COLLECTIVE AGREEMENT PROVIDE THE FACTUAL
PREDICATE OF THE PRESENT LITIGATION. 

THE COMPANY PRESENTLY OWNS 26 TRAILERS AND 6 TRACTORS.  IT LEASES 11
TRACTORS FOR LONG-HAUL USE IN CONNECTION WITH THE TRAILERS WHICH IT
OWNS.  IT IS SOLELY IN CONNECTION WITH THE 11 LEASED TRACTORS AND THE
SERVICES OF THEIR OWNER-OPERATORS THAT THE COMMISSION DISCERNED THE
PROVISION OF FOR-HIRE TRANSPORTATION.  THE LEASES ARE FOR RENEWABLE
TERMS OF ONE YEAR, BUT THEY ARE TERMINABLE BY EITHER PARTY ON 30 DAYS'
NOTICE.  OKLAHOMA IS GRANTED THE SOLE RIGHT TO CONTROL THE USE OF THE
TRACTOR THROUGH DRIVERS EMPLOYED BY IT; IN RETURN, IT COVENANTS THAT
SUCH USE WILL BE LAWFUL AND WILL BE CONFINED TO THE TRANSPORTATION OF
THE COMPANY'S PROPERTY.  OKLAHOMA PAYS FOR ITS USE OF THE TRACTORS
STRICTLY ON A MILEAGE BASIS.  THE OWNER RECEIVES WEEKLY RENTAL PAYMENTS
OF 10 OR 11 CENTS FOR EACH MILE THE VEHICLE IS DRIVEN, PLUS AN EXTRA 3
CENTS PER MILE ON THE BACKHAUL IF THERE IS A LOAD OF RAW MATERIALS. 
OKLAHOMA DOES NOT GUARANTEE ANY MINIMUM MILEAGE.  OPERATING COSTS -
INCLUDING GASOLINE, OIL, GREASE, PARTS, AND REGISTRATION FEES - ARE
PAID BY THE OWNERS.  OKLAHOMA ASSUMES NO RESPONSIBILITY FOR WEAR AND
TEAR OR DAMAGE TO THE TRACTORS, NOR DOES IT PROVIDE COLLISION OR FIRE
AND THEFT INSURANCE COVERAGE - ALTHOUGH IT DOES PAY FOR PUBLIC
LIABILITY AND PROPERTY DAMAGE INSURANCE.  THE OWNERS ASSUME NO
RESPONSIBILITY TO OKLAHOMA FOR DAMAGE TO THE CARGOES. 

UNDER THE COLLECTIVE AGREEMENT COVERING THE DRIVERS AMONG ITS
EMPLOYEES, THE DRIVERS ENJOY CERTAIN COMMON EMPLOYMENT PRIVILEGES SUCH
AS COLLECTIVE BARGAINING, SENIORITY RIGHTS, DEATH BENEFITS, IMMUNITY
FROM DISCHARGE EXCEPT FOR CAUSE, MILITARY-SERVICE PROTECTION, AND
VACATION PAY IN AN AMOUNT BASED ON THEIR AVERAGE WEEKLY PAY.  OWNER
DRIVERS MAY BE DISCHARGED FOR CAUSE.  (FN14)  THEIR REMUNERATION IS
CALCULATED STRICTLY ON A MILEAGE BASIS, AND THEY ARE OBLIGED TO PAY
THEIR OWN LIVING EXPENSES WHILE ON THE ROAD.  (FN15)  DRIVERS ARE
REQUIRED TO MAINTAIN THEIR TRUCKS IN GOOD RUNNING CONDITION AT ALL
TIMES. 

OKLAHOMA'S ACTUAL OPERATIONS WERE A GENERALLY FAITHFUL REFLECTION OF
THE LEASES AND THE COLLECTIVE AGREEMENT.  CERTAIN MATTERS, NOT
EXPLICITLY OR UNAMBIGUOUSLY COVERED BY THE WRITTEN INSTRUMENTS, ARE OF
SIGNIFICANCE.  ORDINARILY THE DRIVERS WERE ASSIGNED TO THEIR OWN
TRACTORS, THOUGH THERE WERE OCCASIONAL EXCEPTIONS.  OKLAHOMA'S TRUCK
SUPERINTENDENT TESTIFIED THAT THE OWNER-OPERATORS' SERVICES WERE NOT
UTILIZED EACH DAY.  THE OWNERS WERE REQUIRED TO PAY FOR ALL REPAIRS,
THOUGH OKLAHOMA CONDUCTED SAFETY INSPECTIONS.  (FN16)  THE COMPANY
CLOSELY DIRECTED ALL DETAILS OF LOADING AND DELIVERY ROUTES.  IT
INSTRUCTED THE DRIVERS AS TO STEPS TO BE TAKEN IN EMERGENCIES.  IT
ADMINISTERED PHYSICAL EXAMINATIONS, SUPERVISED THE PREPARATION OF
REPORTS REQUIRED BY THE INTERSTATE COMMERCE COMMISSION, PAID SOCIAL
SECURITY TAXES AND WITHHELD INCOME TAXES, AND PROVIDED WORKMEN'S
COMPENSATION. 

IN SUM, OKLAHOMA'S OPERATION POSSESSED A NUMBER OF THE HALLMARKS OF A
GENUINE LEASE OF EQUIPMENT AND A GENUINE EMPLOYMENT ARRANGEMENT. 

STILL, THE COMPANY WAS ABLE TO SPARE ITSELF - AND PASS TO THE OWNER
OPERATORS - CERTAIN CHARACTERISTIC BURDENS OF THE TRANSPORTATION
BUSINESS.  THE LARGE CAPITAL INVESTMENT IN THE TRACTORS AND THE RISK OF
THEIR PREMATURE DEPRECIATION OR CATASTROPHIC LOSS, WAS BORNE BY THE
OWNER-OPERATORS, NOT BY THE COMPANY.  THE OWNER-OPERATORS, RATHER THAN
OKLAHOMA, STOOD THE RISK OF A RISE IN VARIABLE COSTS SUCH AS FUEL,
REPAIRS AND MAINTENANCE OF THE TRACTORS IN GOOD OPERATING CONDITION,
AND LIVING EXPENSES, ALTHOUGH THE THIRTY-DAY CANCELLATION PRIVILEGE,
TAKEN TOGETHER WITH THE POSSIBLE BARGAINING POWER OF THE OWNER
OPERATORS EN BLOC, MAY HAVE AFFECTED THE DEGREE TO WHICH THAT BURDEN
WAS ACTUALLY SHIFTED.  FINALLY, OKLAHOMA WAS ABLE TO DIVEST ITSELF, TO
A SIGNIFICANT EXTENT, OF THE RISK OF NON-UTILIZATION OF HIGH-PRICED
EQUIPMENT.  THE OWNER-OPERATORS RECEIVED NEITHER RENTAL PAYMENTS NOR
WAGES WHEN THEIR TRACTORS WERE NOT USED AND THEY DID NOT DRIVE. 
OKLAHOMA DID, HOWEVER, CARRY THE RISK OF A NONPRODUCTIVE BACKHAUL. 
(FN17) 

THE QUESTION BEFORE THE COMMISSION WAS WHETHER, UNDER THESE
PARTICULAR FACTS, OKLAHOMA HAD SO FAR EMANCIPATED ITSELF FROM THE
BURDENS OF TRANSPORTATION THAT TO PERMIT IT, ON SUCH TERMS, TO SECURE A
TRANSPORTATION SERVICE FROM THESE UNLICENSED OWNER-OPERATORS WOULD BE
INCONSISTENT WITH THE STATUTORY SCHEME.  THE COMMISSION RESOLVED THE
ISSUE ADVERSELY TO OKLAHOMA AND THE OWNER-OPERATORS.  DIVISION 1, ONE
COMMISSIONER DISSENTING, HELD THAT THE OWNER-OPERATORS WERE ENGAGED IN
CONTRACT CARRIAGE AND ORDERED THEM TO CEASE AND DESIST FROM THE
ACTIVITIES THUS FOUND TO BE UNLAWFUL UNTIL SUCH TIME AS THEY HAD
SECURED THE NECESSARY PERMITS FROM THE COMMISSION.  APPLICATIONS FOR
SUCH PERMITS WERE INVITED, THE DIVISION'S REPORT OBSERVING THAT THE
ACTIVITIES PRESENTLY CONDEMNED SHOULD NOT PREJUDICE SUCH APPLICATIONS. 
(FN18)  THIS DISPOSITION WAS APPROVED BY THE FULL COMMISSION ON
RECONSIDERATION.  (FN19) 

THE COMMISSION DEALT WITH THE PROBLEM BEFORE IT BY SETTING OUT TWO
INQUIRIES WHICH WOULD HAVE TO BE SATISFIED BEFORE THE OPERATIONS IN
QUESTION COULD BE HELD TO CONSTITUTE PRIVATE CARRIAGE:  FIRST, IT WOULD
HAVE TO BE FOUND THAT NO PERSON OTHER THAN OKLAHOMA HAD "ANY RIGHT TO
CONTROL, DIRECT, AND DOMINATE" THE TRANSPORTATION.  SECOND, IT WOULD
HAVE TO BE FOUND THAT NO PERSON BEFORE THE COMMISSION WAS "IN
SUBSTANCE, ENGAGED IN THE BUSINESS OF  ...  TRANSPORTATION OF PROPERTY
...  FOR HIRE."  (FN20)  THE COMMISSION FOUND AGAINST THE RESPONDENTS
ON BOTH TESTS.  IN CONNECTION WITH THE FIRST, OR "CONTROL," TEST THE
COMMISSION POINTED OUT THAT EARLIER DECISIONS HAD ESTABLISHED A
PRESUMPTION OF FOR-HIRE TRANSPORTATION WHENEVER EQUIPMENT WAS LEASED BY
A SHIPPER, WHICH PRESUMPTION MIGHT BE DEFEATED BY A SHOWING THAT THE
SHIPPER HAD RETAINED THE EXCLUSIVE RIGHT TO CONTROL THE OPERATION. 
DESPITE THE EVIDENCE OF ACTUAL SHIPPER CONTROL IN THIS CASE, THE
COMMISSION HELD THAT THE PRESUMPTION OF FOR-HIRE TRANSPORTATION
REMAINED IN EFFECT BECAUSE "THERE IS PRESENT, WHENEVER THE OWNER
OPERATOR DRIVES HIS OWN EQUIPMENT, THE RIGHT AND POWER OF THE LESSOR TO
DEFEAT ANY SUPPOSED RIGHT TO CONTROL THAT THE SHIPPER-LESSEE MAY
BELIEVE EXISTS."  (FN21)  THE THREE-JUDGE DISTRICT COURT REVERSED THE
COMMISSION'S CONCLUSION RELATIVE TO SHIPPER CONTROL, (FN22) AND THAT
ACTION OF THE DISTRICT COURT IS NOT CHALLENGED BY THE COMMISSION ON
THIS APPEAL.  (FN23)    BUT A FINDING OF SHIPPER CONTROL DOES NOT
REQUIRE A RESOLUTION OF THE ULTIMATE ISSUE IN THE SHIPPER'S FAVOR. 
(FN24)  IT IS TRUE THAT UNTIL RECENTLY, "CONTROL" HAS BEEN AT THE FOCUS
OF THE COMMISSION'S EFFORTS TO DELINEATE VERBALLY THE PERMISSIBLE AREA
OF NON-LICENSED LEASES OF TRANSPORTATION EQUIPMENT.  THE INITIAL
TECHNIQUE OF THE COMMISSION WAS TO ASSESS THE LESSEE-SHIPPER'S
ASSUMPTION OF THE BURDENS OF TRANSPORTATION IN TERMS OF THE DEGREE TO
WHICH HE UNDERTOOK TO "CONTROL" OR "DOMINATE" IT. (FN25)  THE INTEREST
IN "CONTROL" IN TURN GENERATED AN INTEREST IN WHETHER THE DRIVERS OF
LEASED EQUIPMENT WERE IN SUBSTANCE TREATED AS THE SHIPPER'S EMPLOYEES. 
(FN26)  THROUGHOUT, HOWEVER, COMMISSION REPORTS HAVE TAKEN NOTE OF
VARIOUS FACTORS WHICH CLEARLY TRANSCEND ANY NARROW CONCEPT OF PHYSICAL
DIRECTION OF THE DETAILS OF THE OPERATION; AND IT HAS ALWAYS BEEN
APPARENT THAT THE VESTING OF SUCH PHYSICAL "CONTROL" IN THE SHIPPER
WOULD NOT IN ITSELF SUFFICE TO RENDER THE TRANSPORTATION PRIVATE
CARRIAGE.  (FN27) 

LATTERLY, THE COMMISSION HAS BEGUN TO MOVE AWAY FROM "CONTROL" AS THE
VERBAL EMBODIMENT OF ITS MANIFOLD INQUIRY.  (FN28)  THE COMMISSION THUS
ACCORDS EXPLICIT RECOGNITION TO A PREMISE WHICH HAS LONG BEEN IMPLICIT
IN ITS DECISIONS:  THAT SOME INDICIA OF PRIVATE CARRIAGE MAY BE
ASSUMED, AND DETAILED SURVEILLANCE OF OPERATIONS UNDERTAKEN, WITHOUT A
SHIPPER'S HAVING SIGNIFICANTLY SHOULDERED THE BURDENS OF
TRANSPORTATION.  THE TEST OF SUBSTANCE WITH WHICH THE COMMISSION
SUPPLEMENTED ITS "CONTROL" INQUIRY IN THIS CASE THUS BETOKENS NO
HEEDLESS DEPARTURE FROM THE BEATEN TRACK OF ADMINISTRATIVE DECISION
WHICH MIGHT OCCASION A JUDICIAL CURB UPON THE EXERCISE OF
ADMINISTRATIVE DISCRETION.  (FN29)  NO MORE SO DOES THE INCLUSION IN
THE ARRANGEMENT BETWEEN OKLAHOMA AND ITS OWNER-DRIVERS OF A NUMBER OF
PARTICULARS ALSO DISCOVERABLE IN ARRANGEMENTS FOUND TO CONSTITUTE
PRIVATE CARRIAGE IN EARLIER COMMISSION DECISIONS.  WE DEAL IN
TOTALITIES; INDICIA ARE INSTRUMENTS OF DECISION, NOT TOUCHSTONES.  THE
COMMISSION ALLOWABLY DEALT WITH THIS NOVEL SITUATION AS AN INTEGRAL AND
UNIQUE PROBLEM IN JUDGMENT, RATHER THAN SIMPLY AS AN EXERCISE IN
COUNTING COMMONPLACES.  NOR DID IT LEAVE THE BASIS FOR ITS DECISION
UNARTICULATED. 

THE COMMISSION'S MEANING IN APPLYING THE TEST OF SUBSTANCE IN THIS
CASE IS CLEARLY TOLD IN THE FOLLOWING LANGUAGE IN ITS REPORT: 

"HERE EACH OWNER-OPERATOR ASSIGNS HIS MOTOR VEHICLE FOR A CONTINUING
PERIOD OF TIME TO THE EXCLUSIVE USE OF THE COMPANY, FURNISHING A
SERVICE DESIGNED TO MEET THE DISTINCT NEED OF THE COMPANY.  HE PROVIDES
A SERVICE IN WHICH THE EQUIPMENT IS FURNISHED, MAINTAINED, AND DRIVEN
BY THE OWNERS THEREOF TO TRANSPORT PROPERTY IN INTERSTATE COMMERCE.  HE
GUARANTEES A FIXED AND DEFINITE COST FOR THE TRANSPORTATION, BEARS THE
RISK OF PROFIT OR LOSS FROM SUCH TRANSPORTATION HAZARDS AS DELAYS IN
TRANSIT, BREAKDOWNS OF EQUIPMENT, AND HIGHWAY DETOURS, AND MEETS ALL OF
THE COST OF OPERATION INCLUDING APPROPRIATE LICENSES AND TRIP
EXPENSES."  79 M.C.C., AT 412. 

IT IS EVIDENT THAT THE COMMISSION HERE REFUSED TO ALLOW OKLAHOMA THE
STATUS OF A PRIVATE CARRIER BECAUSE OF ITS BELIEF THAT FINANCIAL RISKS
ARE A SIGNIFICANT BURDEN OF TRANSPORTATION, AND ITS BELIEF THAT SUCH
RISKS HAD BEEN SHIFTED BY OKLAHOMA TO THE OWNER-OPERATORS TO AN EXTENT
WHICH RENDERED THE SANCTIONING OF THE OPERATION AS PRIVATE CARRIAGE A
DEPARTURE FROM THE STATUTORY DESIGN.   WE THINK THAT SUCH CONCLUSIONS
WERE WELL WITHIN THE RANGE OF THE RESPONSIBILITY CONGRESS ASSIGNED TO
THE COMMISSION.  THE DISTRICT COURT EXPLICITLY RECOGNIZED THE PROPRIETY
OF THE COMMISSION'S INQUIRING INTO THE SUBSTANCE OF THE ARRANGEMENTS. 
YET THE COURT'S CONCLUSION THAT "WHAT IS INVOLVED HERE IS PRIVATE
CARRIAGE ON THE PART OF THE COMPANY, RATHER THAN TRANSPORTATION FOR
HIRE BY THE OWNER-OPERATORS," 193 F. SUPP., AT 281, RESTS ON NO
ARTICULATED PREMISE OTHER THAN THAT OKLAHOMA DID HAVE CONTROL.  IF THE
COURT INTENDED TO HOLD THAT THE COMMISSION IS CONFINED TO THE "CONTROL"
TEST, WE THINK IT CLEARLY IN ERROR IN VIEW OF THE STATUTORY OBJECTIVES
WHICH WE HAVE SET FORTH ABOVE.  IF, ON THE OTHER HAND, THE COURT MEANT
TO SUBSTITUTE ITS JUDGMENT FOR THE COMMISSION'S ON THE QUESTION OF
SUBSTANCE, WE THINK THAT, ON THIS RECORD, IT INDULGED IN AN UNWARRANTED
INCURSION INTO THE ADMINISTRATIVE DOMAIN.  REVERSED. 

FN1  INTERSTATE COMMERCE ACT SEC. 204(C), 49 STAT. 547, AS AMENDED,
49 U.S.C. SEC. 304(C): 

"UPON COMPLAINT IN WRITING TO THE COMMISSION BY ANY PERSON, STATE
BOARD, ORGANIZATION, OR BODY POLITIC, OR UPON ITS OWN INITIATIVE
WITHOUT COMPLAINT, THE COMMISSION MAY INVESTIGATE WHETHER ANY MOTOR
CARRIER OR BROKER HAS FAILED TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER, OR WITH ANY REQUIREMENT ESTABLISHED PURSUANT THERETO.  IF THE
COMMISSION, AFTER NOTICE AND HEARING, FINDS UPON ANY SUCH INVESTIGATION
THAT THE MOTOR CARRIER OR BROKER HAS FAILED TO COMPLY WITH ANY SUCH
PROVISION OR REQUIREMENT, THE COMMISSION SHALL ISSUE AN APPROPRIATE
ORDER TO COMPEL THE CARRIER OR BROKER TO COMPLY THEREWITH.  WHENEVER
THE COMMISSION IS OF OPINION THAT ANY COMPLAINT DOES NOT STATE
REASONABLE GROUNDS FOR INVESTIGATION AND ACTION ON ITS PART, IT MAY
DISMISS SUCH COMPLAINT." 

FN2  INTERSTATE COMMERCE ACT SEC. 203(A)(15), 49 STAT. 544, AS
AMENDED, 49 U.S.C. SEC. 303(A)(15):

"THE TERM 'CONTRACT CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON WHICH
ENGAGES IN TRANSPORTATION BY MOTOR VEHICLE OF PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE, FOR COMPENSATION (OTHER THAN
TRANSPORTATION REFERRED TO IN PARAGRAPH (14) OF THIS SECTION AND THE
EXCEPTION THEREIN), UNDER CONTINUING CONTRACTS WITH ONE PERSON OR A
LIMITED NUMBER OF PERSONS EITHER (A) FOR THE FURNISHING OF
TRANSPORTATION SERVICES THROUGH THE ASSIGNMENT OF MOTOR VEHICLES FOR A
CONTINUING PERIOD OF TIME TO THE EXCLUSIVE USE OF EACH PERSON SERVED OR
(B) FOR THE FURNISHING OF TRANSPORTATION SERVICES DESIGNED TO MEET THE
DISTINCT NEED OF EACH INDIVIDUAL CUSTOMER." 

INTERSTATE COMMERCE ACT SEC. 203(A)(14), 49 STAT. 544, AS AMENDED, 49
U.S.C. SEC. 303(A)(14), DEFINES "COMMON CARRIER" AS FOLLOWS: 

"THE TERM 'COMMON CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON WHICH
HOLDS ITSELF OUT TO THE GENERAL PUBLIC TO ENGAGE IN THE TRANSPORTATION
BY MOTOR VEHICLE IN INTERSTATE OR FOREIGN COMMERCE OF PASSENGERS OR
PROPERTY OR ANY CLASS OR CLASSES THEREOF FOR COMPENSATION, WHETHER OVER
REGULAR OR IRREGULAR ROUTES, EXCEPT TRANSPORTATION BY MOTOR VEHICLE BY
AN EXPRESS COMPANY TO THE EXTENT THAT SUCH TRANSPORTATION HAS
HERETOFORE BEEN SUBJECT TO CHAPTER 1 OF THIS TITLE, TO WHICH EXTENT
SUCH TRANSPORTATION SHALL CONTINUE TO BE CONSIDERED TO BE AND SHALL BE
REGULATED AS TRANSPORTATION SUBJECT TO CHAPTER 1 OF THIS TITLE." 

FN3  INTERSTATE COMMERCE ACT SEC. 209(A)(1), 49 STAT. 552, AS
AMENDED, 49 U.S.C. SEC. 309(A)(1): 

"EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION AND IN SECTION 310A OF
THIS TITLE (EXCEPTIONS NOT HERE PERTINENT), NO PERSON SHALL ENGAGE IN
THE BUSINESS OF A CONTRACT CARRIER BY MOTOR VEHICLE IN INTERSTATE OR
FOREIGN COMMERCE ON ANY PUBLIC HIGHWAY OR WITHIN ANY RESERVATION UNDER
THE EXCLUSIVE JURISDICTION OF THE UNITED STATES UNLESS THERE IS IN
FORCE WITH RESPECT TO SUCH CARRIER A PERMIT ISSUED BY THE COMMISSION,
AUTHORIZING SUCH PERSON TO ENGAGE IN SUCH BUSINESS  ... ." 

SEE ALSO INTERSTATE COMMERCE ACT SEC. 203(C), 71 STAT. 411, AS
AMENDED, 49 U.S.C. SEC. 303(C): 

"EXCEPT AS PROVIDED IN SECTION 302(C) OF THIS TITLE, SUBSECTION (B)
OF THIS SECTION, IN THE EXCEPTION IN SUBSECTION (A)(14) OF THIS
(NONE OF WHICH EXCEPTIONS ARE HERE PERTINENT), NO PERSON SHALL ENGAGE
IN ANY FOR-HIRE TRANSPORTATION BUSINESS BY MOTOR VEHICLE, IN INTERSTATE
OR FOREIGN COMMERCE, ON ANY PUBLIC HIGHWAY OR WITHIN ANY RESERVATION
UNDER THE EXCLUSIVE JURISDICTION OF THE UNITED STATES, UNLESS THERE IS
IN FORCE WITH RESPECT TO SUCH PERSON A CERTIFICATE OR A PERMIT ISSUED
BY THE COMMISSION AUTHORIZING SUCH TRANSPORTATION, NOR SHALL ANY PERSON
ENGAGED IN ANY OTHER BUSINESS ENTERPRISE TRANSPORT PROPERTY BY MOTOR
VEHICLE IN INTERSTATE OR FOREIGN COMMERCE FOR BUSINESS PURPOSES UNLESS
SUCH TRANSPORTATION IS WITHIN THE SCOPE, AND IN FURTHERANCE, OF A
PRIMARY BUSINESS ENTERPRISE (OTHER THAN TRANSPORTATION) OF SUCH
PERSON." 

FN4  THE UNITED STATES INTERVENED AS DEFENDANT, 28 U.S.C. SEC. 2322,
AND APPELLEE WEATHER-SEAL AND APPELLANT REGULAR COMMON CARRIER
CONFERENCE INTERVENED AS PLAINTIFF AND DEFENDANT RESPECTIVELY, 28
U.S.C. SEC. 2323. 

FN5  INTERSTATE COMMERCE ACT SEC. 203(A)(17), 49 STAT. 545, 49 U.S.C.
SEC. 303(A)(17): 

"THE TERM 'PRIVATE CARRIER OF PROPERTY BY MOTOR VEHICLE' MEANS ANY
PERSON NOT INCLUDED IN THE TERMS 'COMMON CARRIER BY MOTOR VEHICLE' OR
'CONTRACT CARRIER BY MOTOR VEHICLE', WHO OR WHICH TRANSPORTS IN
INTERSTATE OR FOREIGN COMMERCE BY MOTOR VEHICLE PROPERTY OF WHICH SUCH
PERSON IS THE OWNER, LESSEE, OR BAILEE, WHEN SUCH TRANSPORTATION IS FOR
THE PURPOSE OF SALE, LEASE, RENT, OR BAILMENT, OR IN FURTHERANCE OF ANY
COMMERCIAL ENTERPRISE." 

FN6  49 STAT. 543-567, AS AMENDED, 49 U.S.C. SECS. 301-327. 

FN7  SEE S. REP. NO. 482, 74TH CONG., 1ST SESS. 2; H.R. REP. NO.
1645, 74TH CONG., 1ST SESS. 3; S. DOC. NO. 152, 73D CONG., 2D SESS. 14
15, 22-23 (REPORT OF FEDERAL COORDINATOR OF TRANSPORTATION ON THE
REGULATION OF TRANSPORTATION AGENCIES). 

FN8  ID., AT 14. 

FN9  SEE S. REP. NO. 482, 74TH CONG., 1ST SESS. 1; H.R. REP. NO.
1645, 74TH CONG., 1ST SESS. 4; H.R. DOC. NO. 89, 74TH CONG., 1ST SESS.
17 (REPORT OF FEDERAL COORDINATOR OF TRANSPORTATION ON TRANSPORTATION
LEGISLATION). 

FN10 SEE NOTES 2, 5, SUPRA. 

FN11  SEE NOTE 3, SUPRA. 

FN12  SEE S. DOC. NO. 152, 73D CONG., 2D SESS. 33 (REPORT OF FEDERAL
COORDINATOR OF TRANSPORTATION ON THE REGULATION OF TRANSPORTATION
AGENCIES).  THAT CONCERN HAS FOUND RECENT LEGISLATIVE EXPRESSION IN A
1958 AMENDMENT DESIGNED TO CURB SO-CALLED "BUY-SELL" EVASIONS BY
PURPORTED OR "PSEUDO" PRIVATE CARRIERS.  72 STAT. 568, 574, AMENDING
THE INTERSTATE COMMERCE ACT SEC. 203(C), 49 U.S.C. SEC. 303(C).  SEE S.
REP. NO. 1647, 85TH CONG., 2D SESS. 23-24; H.R. REP. NO. 1922, 85TH
CONG., 2D SESS. 17-19. 

FN13  ROBINSON V. WOODARD, 227 ARK. 102, 296 S.W.2D 672. 

FN14  WHILE SUCH A DISCHARGE WOULD NOT AUTOMATICALLY TERMINATE THE
AFFECTED DRIVER'S TRUCK-LEASE AGREEMENT, IT SEEMS OBVIOUS THAT HE WOULD
IMMEDIATELY EXERCISE HIS 30-DAY CANCELLATION PRIVILEGE AND THUS REMOVE
HIS TRUCK FROM OKLAHOMA'S SERVICE. 

FN15  IN CONTRAST, THE SHORT-HAUL DRIVERS OF COMPANY-OWNED TRACTORS
RECEIVED $50 PER WEEK PLUS TWO CENTS PER MILE. 

FN16  THE PROVISION OF THE COLLECTIVE AGREEMENT THAT THE OWNER
DRIVERS "SHALL BE REQUIRED TO MAINTAIN THE TRUCK IN GOOD RUNNING
CONDITION" SUPERSEDED, IN THE PARTIES' PRACTICE, OKLAHOMA'S UNDERTAKING
IN THE LEASE AGREEMENT "TO KEEP AND MAINTAIN SAID MOTOR VEHICLE
EQUIPMENT AT ALL TIMES WHILE IN OPERATION UNDER THIS LEASE AGREEMENT,
IN FIRST CLASS OPERATING CONDITION AND IN COMPLETE COMPLIANCE WITH ALL
SAFETY RULES AND REGULATIONS OF ALL STATE AND FEDERAL REGULATORY
BODIES."  SEE 79 M.C.C., AT 406, 407; 193 F. SUPP., AT 278. 

FN17  OKLAHOMA PAID AN EXTRA THREE CENTS PER MILE RENTAL WHEN THERE
WAS A LOAD OF RAW MATERIALS IN THE BACKHAUL.  THIS DIFFERENTIAL WAS
EXPLAINED AS COVERING THE COST OF ADDITIONAL WEAR AND TEAR AND FUEL
PURCHASES OCCASIONED BY THE HEAVIER RAW MATERIALS TRANSPORTED ON THE
RETURN TRIPS.  AT LEAST TO THE EXTENT THAT THE DIFFERENTIAL WAS IN FACT
ABSORBED BY SUCH INCREMENTAL COSTS, IT CANNOT BE SAID TO HAVE
REPRESENTED THE SHIFTING OF ANY FINANCIAL RISK. 

FN18  79 M.C.C., AT 415.  APPELLEES ASSERT THAT THERE IS NO PRESENTLY
LICENSED CARRIER ABLE OR WILLING TO PROVIDE THE TYPE OF SERVICE
ESSENTIAL TO OKLAHOMA'S SURVIVAL AS A COMPETITOR.  SEE BRIEF FOR HENRY
E. DRUM ET AL., AT 3.  THAT CIRCUMSTANCE SHOULD BE PRESENTED TO AND
CONSIDERED BY THE I.C.C. IN PASSING ON APPELLEES' PERMIT APPLICATIONS;
BUT IT IS NOT A REASON FOR BYPASSING THE COMMISSION'S LICENSING POWER
IF OKLAHOMA IS NOT A PRIVATE CARRIER. 

FN19  R. 167. 

FN20  79 M.C.C., AT 409-410. 

FN21  79 M.C.C., AT 411. 

FN22  193 F. SUPP., AT 281-282. 

FN23  SEE BRIEF FOR THE UNITED STATES AND INTERSTATE COMMERCE
COMMISSION AT 17, N. 8: 

"IN THIS APPEAL, WE DO NOT CHALLENGE THE DISTRICT COURT'S CONCLUSION
THAT THE EVIDENCE DID NOT WARRANT A FINDING THAT OKLAHOMA LACKED FULL
CONTROL OF THE DETAILS OF THE OPERATION.  NOR DO WE ARGUE AS TO WHETHER
THE COURT BELOW GAVE TOO NARROW A MEANING TO THE COMMISSION'S CONTROL
TEST.  WE ASSUME, FOR PRESENT PURPOSES, THAT THE COURT BELOW CORRECTLY
APPLIED THAT TEST AS RELATING ONLY TO THE OPERATIONAL ASPECTS OF THE
TRANSPORTATION." 

FN24  WE NEED NOT AND WE DO NOT NOW PASS ON THE COMMISSION'S VIEW
THAT IF THE SHIPPER DOES NOT DIRECT THE DETAILS OF THE OPERATION HE
CANNOT BE A PRIVATE CARRIER. 

FN25  THE LEADING CASE IS H.B. CHURCH TRUCK SERVICE CO., 27 M.C.C.
191, 195: 

"ESSENTIALLY THE ISSUE IS AS TO WHO HAS THE RIGHT TO CONTROL, DIRECT,
AND DOMINATE THE PERFORMANCE OF THE SERVICE.  IF THAT RIGHT REMAINS IN
THE CARRIER, THE CARRIAGE IS CARRIAGE FOR HIRE AND SUBJECT TO
REGULATION.  IF IT RESTS IN THE SHIPPER, IT IS PRIVATE CARRIAGE AND NOT
SUBJECT TO REGULATION ...  ."    IT WAS THE H.B. CHURCH CASE WHICH
ESTABLISHED THE PRESUMPTION THAT A LEASE OF EQUIPMENT RESULTS IN FOR
HIRE CARRIAGE.  THE PRESUMPTION WAS SAID TO "YIELD TO A SHOWING THAT
THE SHIPPER HAS THE EXCLUSIVE RIGHT AND PRIVILEGE OF DIRECTING AND
CONTROLLING THE TRANSPORTATION SERVICE, AS, FOR EXAMPLE, IF THE
EQUIPMENT WERE OPERATED BY THE SHIPPER'S EMPLOYEE."  27 M.C.C., AT
196. 

FN26  SEE, E.G., WATSON MFG. CO., 51 M.C.C. 223, 226; R.N.G.
COMMERCIAL AUTO RENTERS, INC., 73 M.C.C. 665, 670. 

TEAMSTERS UNION V. OLIVER, 358 U.S. 283, DID NOT, AS APPELLEES
SUGGEST (BRIEF FOR HENRY E. DRUM ET AL., AT 29), HOLD THAT OWNER
OPERATORS ARE IN ANY SENSE "EMPLOYEES."  THAT CASE HELD THAT A
BARGAINING UNIT INCLUDING AN OVERWHELMING MAJORITY OF CONCEDEDLY
EMPLOYED DRIVERS OF CARRIER-OWNED EQUIPMENT WAS ENTITLED, UNDER SEC.
8(D) OF THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 142, 29 U.S.C. SEC.
158(D), TO BARGAIN TO IMPASSE CONCERNING MINIMUM RENTALS TO BE RECEIVED
BY OWNER-DRIVERS.  IT WAS NOT NECESSARY TO DETERMINE WHETHER THE OWNER
DRIVERS WERE "EMPLOYEES" PROTECTED BY THE ACT, SINCE THE ESTABLISHMENT
OF THE MINIMUM RENTAL TO THEM WAS INTEGRAL TO THE ESTABLISHMENT OF A
STABLE WAGE STRUCTURE FOR CLEARLY COVERED EMPLOYEE-DRIVERS.  SEE ID.,
AT 294-295. 

FN27  SEE, E.G., EDWARD ALLEN CARROLL, 1 M.C.C. 788; CENTRE TRUCKING
CO., 32 M.C.C. 313; WILLIAM A. SHIELDS, 41 M.C.C. 100; JOHN J. CASALE,
INC., 44 M.C.C. 45; MOTOR HAULAGE CO., 46 M.C.C. 107; JACOBS TRANSFER
CO., 46 M.C.C. 265; JOHN J. CASALE, INC., 49 M.C.C. 15; R.N.G.
COMMERCIAL AUTO RENTERS, INC., 73 M.C.C. 665. 

FN28  SEE PACIFIC DIESEL RENTAL CO., 78 M.C.C. 161, 172-173: 

"THE PRIMARY QUESTION HERE  ...  CAN BE ASKED IN TWO FORMS; NAMELY
(1) IS THE TRANSPORTATION HERE INVOLVED SUCH THAT ANY PERSON OR PERSONS
OTHER THAN THE PURPORTED PRIVATE CARRIERS HAVE ANY RIGHT TO CONTROL,
DIRECT, AND DOMINATE IT, OR (2) ARE ANY PERSONS HERE, IN SUBSTANCE,
ENGAGED IN THE BUSINESS OF INTERSTATE OR FOREIGN TRANSPORTATION OF
PROPERTY ON THE PUBLIC HIGHWAYS FOR HIRE?  ...  WE ARE CONVINCED HERE
THAT, EVEN IF ALL THE RESPONSIBILITIES OF AN EMPLOYER WITH RESPECT TO
THE DRIVER ARE ASSUMED BY A SHIPPER, THE SERVICE OFFERED  ...  IS, IN
SUBSTANCE, FOR-HIRE MOTOR CARRIAGE SUBJECT TO REGULATION UNDER PART II
OF THE ACT.  TO HOLD OTHERWISE WOULD BE INCONSISTENT WITH THE REMEDIAL
PURPOSE OF PART II AND WOULD BE IN CONTRAVENTION OF OUR DUTY, IMPOSED
BY CONGRESS  ...  .  IT IS EVIDENT THAT, WERE WE TO HOLD THAT THE
SHIPPER'S ASSUMPTION (AS AN EMPLOYER) OF CERTAIN RESPONSIBILITIES WHICH
MORE NORMALLY FALL UPON A CARRIER, TRANSFORMS AN OPERATION WHICH, APART
FROM SUCH ASSUMPTION, IS CLEARLY A FOR-HIRE CARRIER SERVICE, INTO AN
OPERATION DIFFERENT IN SUBSTANCE, WE WOULD OPEN THE DOOR TO UNFAIR AND
DESTRUCTIVE COMPETITIVE PRACTICES CONTRARY TO THE NATIONAL
TRANSPORTATION POLICY DECLARED BY CONGRESS." 

FN29  THE COURTS HAVE COMMONLY ARTICULATED THEIR PLOTTING OF THE
BOUNDARY BETWEEN PRIVATE AND REGULATED CARRIAGE IN LEASED EQUIPMENT
CASES IN TERMS OF OVER-ALL SUBSTANCE, RATHER THAN SIMPLY IN TERMS OF
"CONTROL."  SEE GEORGIA TRUCK SYSTEM, INC., V. I.C.C., 123 F.2D 210,
212 ("APPELLANT, IN SUBSTANCE AND IN REALITY, OPERATES A TRANSPORTATION
BUSINESS."); A.W.  STICKLE & CO. V. I.C.C., 128 F.2D 155, 160, 161
(TEST OF "SUBSTANCE AND REALITY"); LAMB V. I.C.C., 259 F.2D 358, 360
("SIMPLY STATED THE ISSUE  ...  IS WHO WAS TRANSPORTING THE GOODS IN
QUESTION."); B & C TRUCK LEASING, INC., V. I.C.C., 283 F.2D 163, 165
(TEST OF "SUBSTANCE AND EFFECT"); I.C.C. V. ISNER, 92 F. SUPP. 582;
UNITED STATES V. LA TUFF TRANSFER SERVICE, 95 F. SUPP. 375; I.C.C. V.
WERNER, 106 F. SUPP. 497; CF. BRIDGE AUTO RENTING CORP. V. PEDRICK, 174
F.2D 733; JOHN J. CASALE, INC. V. UNITED STATES, 114 CT. CL. 599, 86 F.
SUPP. 167.  BUT CF. EARLE V. BABLER, 180 F.2D 1016; VINCZE V. I.C.C.,
267 F.2D 577; MOTOR HAULAGE CO. V. UNITED STATES, 70 F. SUPP. 17,
AFFIRMED, 331 U.S. 784; I.C.C. V. GANNOE, 100 F. SUPP. 790; ALLEN V.
UNITED STATES, 187 F. SUPP. 625. 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 

IF I READ THE COURT'S OPINION AS MY BROTHER HARLAN READS IT, I WOULD
DISSENT FROM THE DISPOSITION THAT IS MADE OF THE CASE.  THE COMMISSION
IS NOT A FREE-WHEELING AGENCY THAT CAN IMPOSE ITS IDEAS ON THIS
INDUSTRY BY FIAT.  CONGRESS HAS PROVIDED THE STANDARD BY WHICH THE
COMMISSION MUST ADJUDICATE EACH CASE.  AND IT IS REQUIRED TO MAKE NOT
ONLY FINDINGS THAT SUPPORT ITS DECISION (INTERSTATE COMMERCE COMM'N V.
J-T TRANSPORT CO., 368 U.S. 81), BUT ALSO FINDINGS THAT ARE
INTELLIGIBLE AND COMPLETE.  UNITED STATES V. CAROLINA CARRIERS CORP.,
315 U.S. 475, 488-489.  THE CASE IS FOR ME A MARGINAL ONE ON WHICH
COMMISSIONERS AS WELL AS JUDGES MIGHT DIFFER.*  BUT I DO NOT BELIEVE
THE COMMISSION DISTORTED THE STATUTORY STANDARD NOR MADE FINDINGS OUT
OF CONFORMITY WITH THE FACTS. 

*THREE JUDGES IN THE DISTRICT COURT DISAGREED WITH THE COMMISSION
(193 F. SUPP. 275) AND ONE OF THE THREE COMMISSIONERS DISSENTED.  79
M.C.C. 403. 

HENCE I JOIN THE OPINION OF THE COURT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITTAKER JOINS, DISSENTING. 

WERE THIS AN INSTANCE OF A DISTRICT COURT SUBSTITUTING ITS JUDGMENT
FOR THAT OF THE INTERSTATE COMMERCE COMMISSION ON A MATTER WHICH
CONGRESS HAD RESERVED FOR AGENCY DETERMINATION, I WOULD BE AMONG THE
FIRST TO MAINTAIN THAT THE COMMISSION'S ACTION SHOULD BE RESPECTED. 
CF. I.C.C. V. J-T TRANSPORT CO., 368 U.S. 81, 126-130 (DISSENTING
OPINION).  BUT THE ORDER ENTERED BY THE COMMISSION IN THE CASES NOW
BEFORE US IS SO UTTERLY LACKING IN EVIDENTIARY SUPPORT, SO INCONSISTENT
WITH THE UNIFORM COURSE OF AGENCY AND COURT DECISIONS, AND SO CONTRARY
TO THE REGULATORY PLAN EMBODIED IN THE MOTOR CARRIER ACT OF 1935 AND
ITS LATER AMENDMENTS, THAT I CANNOT JOIN IN THE JUDGMENT WHICH
REINSTATES THAT ORDER.  AS I VIEW THIS RECORD WHAT THE COMMISSION HAS
DONE HERE AMOUNTS IN EFFECT TO AN EXERCISE OF POWER WHICH IT DOES NOT
POSSESS. 

UNDER THE MOTOR CARRIER ACT TWO THINGS ARE INDISPUTABLY CLEAR:  (1)
CONGRESS, IN SUBJECTING "PRIVATE" MOTOR CARRIAGE ONLY TO SAFETY
REGULATION, DID NOT MEAN OTHERWISE TO REGULATE INTERSTATE
TRANSPORTATION BY PERSONS OF "THEIR OWN GOODS IN THEIR OWN VEHICLES FOR
COMMERCIAL PURPOSES" (79 CONG. REC. 5651 (1935), REMARKS OF SENATOR
WHEELER, CHAIRMAN OF THE SENATE COMMITTEE ON INTERSTATE COMMERCE);
(FN1) (2) ONE ENGAGED IN THE BUSINESS OF LEASING MOTOR VEHICLES FOR
COMMERCIAL CARRIAGE IS NOT BY THAT FACT ALONE MADE A "CONTRACT
CARRIER," SUBJECT TO FULL COMMISSION REGULATION; IN OTHER WORDS,
EQUIPMENT RENTALS AS SUCH ARE NOT REACHED BY THE STATUTE.  (FN2)  UNDER
THE PLAIN TERMS OF THE ACT AND COMMISSION RULINGS, ECONOMIC REGULATION
OF SUCH RENTALS COMES INTO PLAY ONLY WHERE "FOR-HIRE" MOTOR CARRIAGE
HAS BEEN SHOWN.  (FN3) 

THIS THEN IS NOT A CASE LIKE LABOR BOARD V. HEARST PUBLICATIONS,
INC., 322 U.S. 111, WHERE THE CONSTRUCTION OF AN INEXPLICITLY DEFINED
TERM IN A STATUTE WHICH WAS BROADLY REMEDIAL WAS LEFT TO THE AGENCY
ENFORCING THE LAW.  DESPITE STRONG SUGGESTIONS TO THE CONTRARY, (FN4)
CONGRESS SAW FIT TO EXEMPT PRIVATE CARRIERS FROM ECONOMIC REGULATION
UNDER THE MOTOR CARRIER ACT.  IF WE WERE TO PERMIT THE COMMISSION TO
EXERCISE ITS DISCRETION TO SWEEP IN A VARIETY OF ARRANGEMENTS WHICH
LEGITIMATELY CONSTITUTE PRIVATE CARRIAGE, WE WOULD BE AUTHORIZING
DISOBEDIENCE OF THE LEGISLATIVE MANDATE AS SURELY AS IF WE ALLOWED THE
AGENCY TO REMOVE FROM REGULATION WHAT CLEARLY AMOUNTS TO "FOR-HIRE"
CARRIAGE. 

UNTIL LATE 1952, OKLAHOMA FURNITURE COMPANY, A MANUFACTURER OF LOW
PRICED FURNITURE, SHIPPED ITS PRODUCT TO RETAIL PURCHASERS THROUGHOUT
THE UNITED STATES IN COMPANY-OWNED TRACTORS AND TRAILERS, DRIVEN BY ITS
OWN FULL-TIME SALARIED EMPLOYEES.  DISCOVERING THAT SOME OF ITS DRIVERS
WERE MISUSING COMPANY CREDIT CARDS, GIVEN THEM TO ENABLE THEIR CHARGING
AGAINST THE COMPANY OPERATING AND LIVING EXPENSES WHILE ON THE ROAD,
OKLAHOMA REVAMPED ITS LONG-HAUL TRANSPORTATION SYSTEM IN SUCH A WAY AS
TO REMOVE THESE TEMPTATIONS.  (FN5)  IN ESSENCE THE NEW ARRANGEMENT
INVOLVED, ON THE ONE HAND, LEASING FROM EACH OF 11 OF THE COMPANY'S
EMPLOYEE-DRIVERS ONE OF THE TRACTORS USED IN LONG-HAUL SERVICE, (FN6)
AND SHIFTING TO THE DRIVER THE ECONOMIC INCIDENTS OF ITS MAINTENANCE
AND OPERATION; AND, ON THE OTHER HAND, PRESERVING TO THE COMPANY THE
EXCLUSIVE USE OF THE TRACTOR IN THE CONDUCT OF ITS BUSINESS, AND
KEEPING, IN EVERY PRACTICAL SENSE, THE EMPLOYEE RELATIONSHIP BETWEEN
THE DRIVER AND THE COMPANY.  THE DETAILS OF THE ARRANGEMENT AND ITS
OPERATION ARE ACCURATELY SUMMARIZED IN THE DISTRICT COURT'S OPINION. 
(FN7) 

THE PROCESS OF REASONING BY WHICH THE COMMISSION REACHED THE
CONCLUSION THAT THIS REARRANGEMENT CHANGED TO FULLY REGULATABLE
ACTIVITY THAT WHICH HAD THERETOFORE BEEN SUBJECT TO COMMISSION
JURISDICTION ONLY FROM THE STANDPOINT OF SAFETY, IS AT BEST OBSCURE. 
HOWEVER, THE TRUE MEASURE OF WHAT THE COURT NOW SANCTIONS IS REVEALED
BY LAYING BARE THE EXTENT TO WHICH THE AGENCY'S CONCLUSION INVOLVED A
DEPARTURE FROM THE COMMON-SENSE CRITERIA THAT HAVE HERETOFORE ENTERED
INTO COMMISSION DETERMINATIONS AS TO WHETHER PARTICULAR ARRANGEMENTS
REFLECTED "PRIVATE" OR "FOR-HIRE" MOTOR CARRIAGE.  (FN8) 

THE COURT HOLDS THAT THE SHIFTING OF THREE ECONOMIC BURDENS FROM THE
COMPANY TO THE DRIVERS JUSTIFIED THE COMMISSION'S DETERMINATION:  (1)
THE SUBSTANTIAL CAPITAL INVESTMENTS IN THE TRACTORS, ALONG WITH THE
RISK OF PREMATURE LOSS, WERE BORNE BY THE DRIVERS; (FN9) (2) THEY
UNDERTOOK THE COSTS OF MAINTAINING THE VEHICLES AND THEIR OWN LIVING
EXPENSES ON THE ROAD; AND (3) THEY BORE THE RISK, AS THE COURT
ENVISAGES IT, OF "NON-UTILIZATION OF HIGH-PRICED EQUIPMENT" AND OF
THEIR OWN UNEMPLOYMENT.  THESE FACTORS, EITHER SINGLY OR IN
COMBINATION, DO NOT, IN MY VIEW, SUFFICE TO WARRANT THE COMMISSION'S
RULING.  THE FIRST OF THEM IS THE NORMAL CONCOMITANT OF ANY EQUIPMENT
RENTAL; ITS PRESENCE CANNOT SERVE TO CHANGE THE CHARACTER OF A
RELATIONSHIP WHICH IS NOT OF ITSELF SUBJECT TO COMMISSION REGULATION,
EXCEPT FROM THE STANDPOINT OF SAFETY (SUPRA, P. 387, NOTE 1).  THE
COSTS OF GAS, REPAIRS, AND GARAGING ARE COMMONLY ALSO ASSUMED BY THOSE
LEASING OUT MOTOR VEHICLES FOR PRIVATE USE.  (FN10)  SEE, E.G., R.N.G.
COMMERCIAL AUTO RENTERS, INC., 73 M.C.C. 665; SCOTT BROS., INC., 32
U.C.C. 253; U-DRIVE-IT CO. OF PENNSYLVANIA, 23 M.C.C. 799.  THE THIRD
FACTOR, WHATEVER MAY BE ITS WEIGHT WHEN SUPPORTED BY ACTUALITY, IS, IN
THE CIRCUMSTANCES DEPICTED IN THIS RECORD, NO MORE THAN A PURE
ABSTRACTION (PP. 394-395, INFRA). 

AS THE COURT APPEARS TO RECOGNIZE, THE OTHER PROVISIONS OF THE
ARRANGEMENT, RELATING TO THE COST OF MAINTAINING THE LEASED EQUIPMENT,
ALL POINT TO "PRIVATE" CARRIAGE.  PAST CASES IN THE COMMISSION WHERE
"FOR-HIRE" CARRIAGE HAS BEEN FOUND, IN THE FACE OF SIMILAR PROVISIONS,
ALL INVOLVED OTHER FACTORS NOT PRESENT HERE.  UNDER THIS ARRANGEMENT,
THE COMPANY WAS ENTITLED TO EXCLUSIVE USE OF THE TRACTORS DURING THE
RENTAL PERIOD (CF.  JOSEPH A. BISCEGLIA, 34 M.C.C. 233); IT LOADED,
DISPATCHED, AND ROUTED THE TRUCKS (CF.  WILLIAM A. SHIELDS, 41 M.C.C.
100); (FN11) IT INSTRUCTED THE DRIVERS AS TO DETAILS OF SERVICE (CF.
MCKEOWN TRANSPORTATION CO., 42 M.C.C. 792); IT ASSUMED THE RISK OF LOSS
OR DAMAGE TO THE CARGO (CF. EDWARD ALLEN CARROLL, 1 M.C.C. 788); IT
PAID FOR LIABILITY AND PROPERTY DAMAGE INSURANCE (CF. CENTRE TRUCKING
CO., 32 M.C.C. 313); (FN12) IT UNDERTOOK TO INSPECT THE TRACTORS TO
INSURE COMPLIANCE WITH SAFETY REGULATIONS (CF. DRIVER SERVICE, INC., 77
M.C.C. 243); AND IT SHIPPED THE GOODS WITHOUT BILLS OF LADING (CF.
JACOBS TRANSFER CO., 46 M.C.C. 265). 

NOR IS THE COMMISSION'S CASE STRENGTHENED BY THE CIRCUMSTANCE THAT
THE APPELLEES, IN ADDITION TO SUPPLYING THE VEHICLES, PROVIDED THEIR
OWN SERVICES AS DRIVERS.  THAT FACTOR WOULD BE SIGNIFICANT ONLY IF THE
APPELLEES FURNISHED THESE SERVICES AS INDEPENDENT CONTRACTORS, FOR IT
IS ONLY THEN THAT THE ARRANGEMENT DIFFERS FROM AN EQUIPMENT RENTAL IN
WHICH THE LESSEE MANS THE LEASED VEHICLE WITH HIS OWN EMPLOYEES.  IT
WOULD BE STRANGE INDEED TO ATTRIBUTE TO CONGRESS A PURPOSE TO CLASSIFY
AS A "FOR-HIRE" CARRIER ANY EMPLOYEE WHO, AS A CONDITION OF EMPLOYMENT,
IS REQUIRED TO PURCHASE A VEHICLE IN WHICH HIS EMPLOYER'S GOODS ARE TO
BE TRANSPORTED. 

ALL THE STANDARDS BY WHICH THE COMMISSION HAS PREVIOUSLY TESTED A
PURPORTED "EMPLOYMENT" RELATIONSHIP PROVE THE EXISTENCE OF SUCH A
RELATIONSHIP HERE.  THE COMPANY PAID THE DRIVERS' WAGES (CF. COLUMBIA
TERMINALS CO., 18 M.C.C. 662); (FN13) DEDUCTED SOCIAL SECURITY AND
FEDERAL INCOME TAXES (CF. MOTOR HAULAGE CO., 46 M.C.C. 107); RETAINED
DRIVERS' TRIP LOGS AND MEDICAL CERTIFICATES (CF. WATSON MFG. CO., 51
M.C.C. 223); BARGAINED WITH THE DRIVERS' LABOR UNION OVER CONDITIONS OF
EMPLOYMENT (CF. R.N.G. COMMERCIAL AUTO RENTERS, INC., 73 M.C.C. 665);
AND RESERVED THE RIGHT TO ENGAGE AND DISCHARGE (CF. JOHN J. CASALE,
INC., 49 M.C.C. 15).  IN TEAMSTERS UNION V. OLIVER, 358 U.S. 283, WE
HELD THAT AN AGREEMENT SETTING A MINIMUM RENTAL AND OTHER TERMS FOR THE
USE OF A LESSOR-DRIVER'S EQUIPMENT WAS "WITHIN THE SCOPE OF COLLECTIVE
BARGAINING AS DEFINED BY FEDERAL LAW."   ID., AT 293.  IN LIGHT OF THE
DISSENTING OPINION, ID., AT 297-298, IT SEEMS CLEAR THAT THE COURT
CONCLUDED THAT THE LESSOR-DRIVERS WERE EMPLOYEES, NOT INDEPENDENT
CONTRACTORS, FOR PURPOSES OF THE NATIONAL LABOR RELATIONS ACT. 

DESPITE THE TOTAL SUPERVISION THUS EXERCISED BY THE COMPANY, IF THE
RECORD REVEALED THAT THESE DRIVERS REALLY RISKED HAVING NO WORK AT ALL,
THUS EARNING NO WAGE, OVER ANY PERIOD OF TIME, THERE MIGHT BE ROOM FOR
ARGUMENT THAT THEY WERE, IN FACT, INDEPENDENT CONTRACTORS.  UNDER THE
TERMS OF THEIR EMPLOYMENT SUCH A THEORETICAL POSSIBILITY EXISTS, BUT
THE FACTS PROVE IT COULD NOT HAPPEN.    THE APPELLEES WERE PAID RENTAL
FOR THEIR VEHICLES AND WAGES FOR THEIR SERVICES ON A PER-MILE BASIS. 
BUT THE TESTIMONY OF THE COMPANY'S TRUCK SUPERINTENDENT SHOWS THAT THE
COMPANY DELIBERATELY ATTEMPTED TO DISTRIBUTE THE WORK SO AS TO ASSURE
TO EACH DRIVER WEEKLY WAGES WHICH WERE WITHIN LIMITS ACCEPTABLE BOTH TO
THE INDIVIDUAL CONCERNED AND HIS LABOR UNION.  SIX TRACTORS CONTINUED
TO BE OWNED BY THE COMPANY, AND INDIVIDUAL EMPLOYEES WERE ASSIGNED TO
THESE TRACTORS, ONE TO A VEHICLE, JUST AS THE APPELLEES WERE IN EFFECT
ASSIGNED BY THE COMPANY TO THE TRACTORS THEY OWNED.  THOSE ASSIGNED TO
COMPANY-OWNED TRACTORS WERE PAID $50 A WEEK PLUS TWO CENTS A MILE, AND
THEY WERE DISPATCHED ON SHORT HAULS.  THE APPELLEES WERE SENT ON LONG
HAULS, SO THAT THEIR TOTAL MILEAGE WOULD MAKE UP FOR THE ABSENCE OF ANY
FIXED WAGE.  (FN14)  IN ADDITION, IF ONE OF THE APPELLEES WAS SICK, A
DRIVER USUALLY ASSIGNED TO A COMPANY-OWNED VEHICLE WOULD BE DIRECTED TO
OPERATE THE TRACTOR BELONGING TO THE INCAPACITATED MAN IN ORDER TO
ASSURE HIM OF AT LEAST THE RENTAL PAYMENT FOR HIS EQUIPMENT.  IN SHORT,
THERE IS NOTHING IN THE RECORD WHICH WARRANTS A FINDING THAT THE STATUS
OF THE APPELLEES WAS ANYTHING OTHER THAN THAT OF BONA FIDE EMPLOYEES,
OR THAT THEY IN FACT SHOULDERED, OR ANTICIPATED THAT THEY MIGHT HAVE TO
BEAR, ANY OF THE ECONOMIC BURDENS UNDERTAKEN BY INDEPENDENT
CONTRACTORS. 

I AM NOT UNMINDFUL THAT THE INTERSTATE COMMERCE COMMISSION HAS, OF
LATE, BEEN MUCH CONCERNED WITH THE PROBLEM OF DRAWING THE LINE BETWEEN
LEGITIMATE EQUIPMENT RENTALS, WHICH IT CONCEDES TO BE "PRIVATE
CARRIAGE," AND WHAT IT HAS COME TO CALL "PSEUDO-PRIVATE CARRIAGE,"
I.E., CONTRACT CARRIAGE DISGUISED AS LEASE OF EQUIPMENT.  (FN15)
OBVIOUSLY THE COMMISSION MUST HAVE THE POWER TO DEAL WITH SCHEMES THAT
HAVE BEEN DEVISED TO AVOID REGULATION.  NO ONE WOULD SUPPOSE THAT THE
COMMISSION WAS ACTING BEYOND ITS AUTHORITY IF IT PIERCED THROUGH THE
FORM ASSUMED BY A BUSINESS ENTERPRISE PURPORTEDLY ENGAGED IN PROVIDING
EQUIPMENT FOR "PRIVATE" CARRIAGE AND DISCLOSED THAT IT WAS REALLY
SUPPLYING "FOR-HIRE" CARRIAGE.  DECISIONS OF DISTRICT COURTS AND COURTS
OF APPEALS HAVE UNIFORMLY APPROVED THE APPLICATION OF THE TEST OF
"SUBSTANCE" IN SUCH CIRCUMSTANCES.  E.G., LAMB V. I.C.C., 259 F.2D 358;
I.C.C. V. ISNER, 92 F. SUPP. 582; I.C.C. V. GANNOE, 100 F. SUPP. 790. 
I DISAGREE WITH THE RESULT REACHED HERE BY THE COURT, NOT BECAUSE THE
COMMISSION HAS SUPPLEMENTED ITS EARLIER TEST OF "CONTROL" WITH ONE OF
"SUBSTANCE," (FN16) BUT BECAUSE THE APPLICATION OF THE VERY TEST THAT
IS NOW URGED PERSUADES ME THAT THIS WAS IN REALITY AN EMPLOYMENT
RELATIONSHIP WITH AN EMPLOYER ENGAGED IN PRIVATE CARRIAGE, AND NOT A
"FOR-HIRE" CARRIAGE ARRANGEMENT. 

IN SUM, THIS IS A CASE IN WHICH THERE IS NO ALLEGATION OF SUBTERFUGE
AND NO BASIS IN THE RECORD FOR ATTRIBUTING A DEVIOUS MOTIVE TO THE
LESSEE; IN WHICH THE ECONOMIC RISKS TRANSFERRED BY THE ARRANGEMENT TO
THE LESSOR ARE NO MORE, AND POSSIBLY EVEN LESS, SUBSTANTIAL (FN17) THAN
THOSE IN THE ORDINARY RENTAL OF EQUIPMENT; AND IN WHICH THE ACTUAL
CONDITIONS OF HIRE DISCLOSE THAT THE DRIVERS ARE BONA FIDE EMPLOYEES OF
THE LESSOR AND ARE PROTECTED BY THEIR UNION REPRESENTATIVES AGAINST
OVERREACHING BY THE EMPLOYER.  THE COMMISSION'S ORDER IS NOT SAVED BY
THE "TOTALITY" TEST WHICH THE COURT NOW BRINGS TO ITS AID.  FOR HOWEVER
VIEWED, THIS RECORD ADDS UP TO NOTHING MORE THAN A MERE REARRANGEMENT
OF OKLAHOMA'S PRIVATE CARRIAGE ACTIVITIES IN SUCH A WAY AS, AND FOR NO
OTHER PURPOSE THAN, TO PROTECT THE COMPANY AGAINST BEING CHEATED BY ITS
LONG-HAUL DRIVER-EMPLOYEES. 

IF IT IS WITHIN THE RANGE OF THE COMMISSION'S PERMISSIBLE DISCRETION
TO CLASSIFY THESE APPELLEES AS CONTRACT CARRIERS - AND THUS SUBJECT
THEM TO THE RIGOROUS STANDARDS OF FINANCIAL FITNESS AND SUITABILITY
THAT THE COMMISSION'S REGULATIONS REQUIRE OF SUCH CARRIERS - WHAT HAS
BEEN THOUGHT OF AS THE "GRAY" AREA BECOMES BLACK, AND, IN TRUTH, MUCH
OF WHAT HAS HERETOFORE BEEN TAKEN FOR WHITE IS NOW GRAY.  WHAT, FOR
EXAMPLE, WOULD HAVE BEEN THE RESULT HAD TITLE TO THESE TRACTORS
REMAINED WITH THE COMPANY UNDER AN ARRANGEMENT WHEREBY THEY WERE LEASED
TO THE DRIVERS AND THEN SUBLEASED BACK TO THE COMPANY, WITH THE COMPANY
ASSUMING THE RISK OF CATASTROPHIC LOSS OR DESTRUCTION?  OR WHAT IF THE
DRIVERS HAD BEEN GUARANTEED $50 A WEEK IN TOTAL RENTAL AND WAGES? 
WOULD EITHER OF THESE CHANGED CIRCUMSTANCES HAVE OUSTED THE COMMISSION
OF AUTHORITY TO HOLD THE CONTRACTS TO BE "FOR-HIRE" CARRIAGE? 

INDEED, THE COURT'S DECISION GOES FAR TO ENCOURAGE THE COMMISSION TO
OBLITERATE ENTIRELY THE CONGRESSIONALLY DRAWN DISTINCTION BETWEEN
PRIVATE AND CONTRACT CARRIAGE.  IT WILL BE INTERESTING TO SEE AS TIME
GOES ON WHETHER THERE WILL BE AN AFTERMATH TO THIS DECISION SIMILAR TO
THAT WHICH FOLLOWED THE BLURRING OF THE LINE BETWEEN COMMON AND
CONTRACT MOTOR CARRIERS EFFECTED BY THE COURT'S DECISION IN UNITED
STATES V. CONTRACT STEEL CARRIERS, 350 U.S. 409.  SEE I.C.C. V. J-T
TRANSPORT CO., SUPRA, AT 107-109 (DISSENTING OPINION).  I WOULD
AFFIRM. 

FN1  SEE ALSO S. DOC. NO. 152, 73D CONG., 2D SESS. 33 (1934); H.R.
DOC. NO. 89, 74TH CONG., 1ST SESS. 17 (1935); S. REP. NO. 482, 74TH
CONG., 1ST SESS. 1 (1935); H.R. REP. NO. 1645, 74TH CONG., 1ST SESS. 4
(1935). 

FN2  THERE HAS BEEN SOME EQUIPMENT RENTAL REGULATION BY THE STATES;
WHETHER IT IS ALSO DESIRABLE AS A MATTER OF FEDERAL POLICY HAS YET TO
BE DETERMINED BY CONGRESS.  SEE NUTTING AND KUHN, MOTOR CARRIER
REGULATION - THE THIRD PHASE, 10 U. OF PITT.  L. REV. 477, 487-491
(1949); NOTE, 39 KY. L.J. 338 (1951). 

FN3  THE RELEVANT STATUTORY PROVISIONS ARE SET FORTH IN FOOTNOTES 1,
2, 3 AND 5 OF THE COURT'S OPINION.  SEE ALSO U-DRIVE-IT CO. OF
PENNSYLVANIA, 23 M.C.C. 799; SCOTT BROS., INC., 32 M.C.C. 253.  IN
LEASE AND INTERCHANGE OF VEHICLES BY MOTOR CARRIERS, 51 M.C.C. 461,
521, THE COMMISSION DID NOT PREMISE ITS AUTHORITY TO REGULATE LEASE AND
INTERCHANGE PRACTICES AMONG COMMON AND CONTRACT CARRIERS ON ANY
AUTHORITY GENERALLY TO CONTROL VEHICLES ENGAGED IN INTERSTATE
COMMERCE.  THE COMMISSION RATHER INFERRED FROM ITS AUTHORITY TO
REGULATE THE TRANSPORTATION OFFERED BY COMMON AND CONTRACT CARRIERS THE
POWER TO REGULATE, AS WELL, "THE PROCUREMENT OF TRANSPORTATION."  THIS
CONCLUSION IN NO WAY SUGGESTS ITS AUTHORITY TO REGULATE THE RENTAL OF
VEHICLES BY NONCARRIERS FROM COMPANIES ENGAGED SOLELY IN RENTAL
ACTIVITIES. 

FN4  SEE S. DOC. NO. 152, 73D CONG., 2D SESS. 26 (1934); HEARINGS
BEFORE SENATE COMMITTEE ON INTERSTATE COMMERCE ON THE MOTOR CARRIER ACT
OF 1935, 74TH CONG., 1ST SESS. 333, 345, 347-350 (1935). 

FN5  SHORT HAULS OF COMPANY PRODUCTS IN COMPANY-OWNED AND DRIVEN
EQUIPMENT REMAINED UNAFFECTED BY THE NEW ARRANGEMENT, PRESUMABLY
BECAUSE THERE WAS LESS OPPORTUNITY FOR THE MISUSE OF COMPANY CREDIT
CARDS IN CONNECTION WITH SUCH HAULS. 

FN6  THE RECORD DOES NOT SHOW THE TERMS ON WHICH THE DRIVERS ACQUIRED
THE TRACTORS, WHETHER THEY WERE BOUGHT FROM THE COMPANY OR OTHERS, AND
IF FROM THE COMPANY, WHAT, IF ANY, CONSIDERATION WAS PAID.  THE
TRAILERS DRAWN BY THESE TRACTORS CONTINUED TO BE OWNED BY THE COMPANY. 

FN7 "THE LEASES PROVIDED IN SUBSTANCE AS FOLLOWS:  (1) THE COMPANY
SHALL PAY THE OWNER-OPERATOR 10 CENTS A MILE FOR HAULING SINGLE-AXLE
TRAILERS AND 11 CENTS A MILE FOR HAULING TANDEM-AXLE TRAILERS, PLUS AN
ADDITIONAL 3 CENTS A MILE FOR BACK-HAUL OF THE COMPANY'S RAW MATERIALS,
(2) PAYMENTS UNDER THE AGREEMENT SHALL BE MADE WEEKLY, (3) MOTOR
VEHICLES COVERED BY THE AGREEMENT SHALL BE OPERATED BY AN EMPLOYEE OF
THE COMPANY WHO SHALL BE PROPERLY QUALIFIED AND PHYSICALLY FIT IN
ACCORDANCE WITH STATE AND FEDERAL REGULATIONS, (4) THE OWNER-OPERATOR
SHALL PAY ALL OPERATING COSTS ARISING FROM OPERATION OF SAID EQUIPMENT
(GASOLINE, OIL, GREASE AND PARTS) AND SHALL PAY COST OF LICENSE PLATES,
(5) THE COMPANY SHALL KEEP AND MAINTAIN SAID EQUIPMENT IN FIRST-CLASS
OPERATING CONDITION AND IN COMPLIANCE WITH ALL SAFETY RULES AND
REGULATIONS OF STATE AND FEDERAL REGULATORY BODIES, (6) IF OWNER
OPERATOR FAILS TO PAY OPERATING COST OF EQUIPMENT, THE COMPANY MAY
CANCEL THE AGREEMENT OR AT ITS OPTION PAY THE NECESSARY OPERATING COSTS
AND CHARGE SAME TO OWNER-OPERATOR'S ACCOUNT WITH THE COMPANY, (7) THE
COMPANY SHALL HAVE SOLE CONTROL, RIGHT OF DIRECTION, AND USE OF THE
LEASED EQUIPMENT, ALL PROPERTY TRANSPORTED BY THE LEASED VEHICLES SHALL
BELONG TO THE COMPANY AND THE COMPANY WILL NOT SUBLEASE THE EQUIPMENT
TO ANY OTHER PERSON, FIRM OR CORPORATION, (8) THE COMPANY SHALL NOT BE
LIABLE FOR WEAR, TEAR AND DEPRECIATION NOR FOR ANY DAMAGE CAUSED TO THE
LEASED EQUIPMENT BY ACCIDENT, THEFT, FIRE OR ANY OTHER HAZARD OR
CASUALTY, (9) THE OWNER-OPERATOR SHALL NOT BE RESPONSIBLE FOR LOSS TO
COMPANY EQUIPMENT, PROPERTY AND CARGO, (10) THE COMPANY WILL HAVE THE
NAME OF THE OWNER-OPERATOR ENDORSED AS AN ADDITIONAL ASSURED UPON ITS
POLICIES OF PROPERTY DAMAGE AND PUBLIC LIABILITY INSURANCE COVERING THE
OPERATION OF MOTOR VEHICLES, (11) EITHER PARTY MAY CANCEL THE LEASE
UPON GIVING 30 DAYS' WRITTEN NOTICE TO THE OTHER PARTY, (12) THE
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT FOR ONE YEAR FROM DATE
OF EXECUTION AND SHALL BE AUTOMATICALLY RENEWED FOR FURTHER PERIODS OF
ONE YEAR UNLESS CANCELLED IN ACCORDANCE WITH PROVISIONS OF THE
AGREEMENT, OR TERMINATED BY OPERATION OF LAW. 

"THE COMPANY ALSO ENTERED INTO A UNION CONTRACT AS EMPLOYER OF ITS
DRIVERS.  THE CONTRACT COVERS BOTH DRIVERS OF COMPANY-OWNED VEHICLES
AND THE OWNER-OPERATORS WHO USUALLY DRIVE THEIR OWN TRACTORS AND WHO
ARE ALSO TREATED BY THE COMPANY AS EMPLOYEES.  ALTHOUGH ALL THE DRIVERS
DO NOT BELONG TO THE UNION, THE TERMS OF THE CONTRACT APPLY EQUALLY TO
NON-UNION EMPLOYEES.  THIS CONTRACT PROVIDES, IN PERTINENT PART, AS
FOLLOWS:  (1) THE COMPANY MAY DISCHARGE ANY EMPLOYEE FOR CAUSE, (2) THE
OWNER-OPERATORS SHALL BE PAID AT THE RATE OF 4.5 CENTS A MILE FOR
DRIVING, 0.25 CENTS A MILE FOR LIVING EXPENSES, AND 0.25 CENTS A MILE
FOR LABOR IN THE MAINTENANCE OF THE TRUCK, OR A TOTAL OF 5 CENTS A
MILE, AND SHALL BE PAID 6 CENTS A MILE FOR BACK-HAULS OF RAW MATERIALS,
(3) DRIVERS OF COMPANY-OWNED TRACTORS SHALL RECEIVE A BASIC SALARY OF
$50 A WEEK PLUS 2 CENTS A MILE FOR DRIVING, (4) OWNER-OPERATORS HAVING
DRIVEN 75,000 MILES DURING A YEAR IN WHICH THE CONTRACT IS IN EFFECT
SHALL BE ENTITLED TO VACATION PAY COMPUTED UPON THE RATE OF PAY FOR
DRIVING AND THE AVERAGE WEEKLY MILEAGE IN THE PRECEDING YEAR, (5) OWNER
OPERATORS SHALL MAINTAIN THEIR TRUCKS IN GOOD RUNNING CONDITION AT ALL
TIMES, (6) OWNER-OPERATORS SHALL PAY THEIR OWN LIVING EXPENSES WHILE ON
THE ROAD, (7) THE PROVISION OF THE UNION CONTRACT WHICH GUARANTEES
EMPLOYEES 6 HOURS WORK OR PAY IF THEY REPORT FOR WORK AT THEIR USUAL OR
REGULAR TIME SHALL NOT APPLY TO OWNER-OPERATORS. 

"THE RECORD MADE BEFORE THE COMMISSION SHOWS THAT THE OPERATIONS OF
THE COMPANY AND THE OWNER-OPERATORS ARE IN SUBSTANCE CARRIED ON IN
ACCORDANCE WITH THE PROVISIONS OF THE LEASE AGREEMENTS AND THE UNION
CONTRACT, WITH ONE EXCEPTION.  THE LEASE AGREEMENTS PROVIDE THAT THE
COMPANY SHALL MAINTAIN THE TRACTORS OF THE OWNER-OPERATORS AND THE
UNION CONTRACT PROVIDES THAT THE OWNER-OPERATORS SHALL MAINTAIN THEM. 
THE TESTIMONY IN THE RECORD SUPPORTS THE COMMISSION'S FINDING THAT THE
OWNER-OPERATORS IN FACT MAINTAIN THEIR VEHICLES. 

"THE RECORD ALSO REVEALS THE FOLLOWING:  THE OWNER-OPERATORS ARE NOT
AUTHORIZED BY THE INTERSTATE COMMERCE COMMISSION TO ENGAGE IN THE
TRANSPORTATION OF PROPERTY EITHER AS CONTRACT CARRIERS OR COMMON
CARRIERS BY MOTOR VEHICLE IN INTERSTATE COMMERCE.  THE COMPANY USES THE
6 TRACTORS WHICH IT OWNS CHIEFLY FOR SHORT HAULS AND THESE ARE USUALLY
DRIVEN BY THE SALARIED COMPANY DRIVERS.  THE TRACTORS LEASED BY THE
COMPANY ARE UTILIZED CHIEFLY FOR LONG HAULS AND ARE USUALLY OPERATED BY
THE OWNER-OPERATORS, EACH DRIVING HIS OWN TRACTOR.  IT IS THE PRACTICE
OF THE COMPANY TO ASSIGN THE SAME DRIVER TO THE SAME EQUIPMENT,
REGARDLESS OF WHETHER IT IS COMPANY-OWNED OR LEASED.  HOWEVER, WHEN
NECESSITY OR CONVENIENCE MAKE IT MORE FEASIBLE TO DO SO, DRIVERS WHO
USUALLY DRIVE COMPANY-OWNED TRACTORS ARE ASSIGNED TO LEASED TRACTORS
AND OWNER-OPERATORS TO COMPANY-OWNED TRACTORS.  ALL TRAILERS USED IN
THE COMPANY'S OPERATIONS ARE OWNED BY IT.  A SUPERVISOR EMPLOYED BY THE
COMPANY OVERSEES ALL DRIVERS, ASSIGNS TRIPS AND CHECKS TO SEE THAT ALL
EQUIPMENT IS PROPERLY MAINTAINED AND REPAIRED.  DETAILED ROUTING
INSTRUCTIONS ARE ISSUED TO ALL DRIVERS AND COMPLIANCE THEREWITH IS
INSURED BY MANNER OF LOADING, E.G., LAST GOODS TO COME OFF ARE LOADED
FIRST AND THE FIRST TO COME OFF ARE LOADED LAST.  PRIOR TO DEPARTURE
DRIVERS ARE HANDED A TRUCK BILL MANIFEST WHICH DIFFERS FROM A BILL OF
LADING IN THAT THE DRIVERS ARE NOT REQUIRED TO SIGN A RECEIPT FOR THE
FREIGHT THEY TRANSPORT.  EACH OWNER-OPERATOR RECEIVES TWO WEEKLY
PAYCHECKS, ONE FOR RENTAL OF HIS TRACTOR AND THE OTHER FOR HIS SERVICE
AS A DRIVER.  THE COMPANY DEDUCTS FROM THE PAYCHECKS OF THE OWNER
OPERATORS SOCIAL SECURITY AND WITHHOLDING TAXES, PAYS THE EMPLOYER'S
SHARE OF SOCIAL SECURITY AND PROVIDES WORKMEN'S COMPENSATION BENEFITS
FOR THEM.  THE COMPANY MAINTAINS ON FILE DRIVERS' LOGS, PHYSICIANS'
CERTIFICATES AND VEHICLE INSPECTION REPORTS.  BOTH COMPANY-OWNED
TRACTORS AND LEASED TRACTORS ARE GARAGED AT THE HOMES OF THEIR
RESPECTIVE DRIVERS.  THE COMPANY HAS THE RIGHT TO HIRE AND FIRE DRIVERS
INDEPENDENTLY OF THE LEASE AGREEMENT."  193 F. SUPP., AT 277-278. 

FN8  SEE GENERALLY O'BRIEN, TWENTY-FIVE YEARS OF FEDERAL MOTOR
CARRIER LICENSING - THE PRIVATE VERSUS FOR-HIRE CARRIER PROBLEM, 35
N.Y.U.L. REV. 1150 (1960); MATTHEWS, TRUCK LEASING BY SHIPPERS AND THE
PROBLEM OF THE DANGLING INSTRUMENTALITIES, 27 I.C.C. PRAC.  J. 370
(1960); PORTER, FEDERAL REGULATION OF PRIVATE CARRIERS, 64 HARV. L.
REV. 896 (1951). 

FN9  BUT SEE NOTE 6, SUPRA. 

FN10  TO THE EXTENT THAT THIS SECOND "RISK" CONCERNS PERSONAL LIVING
EXPENSES ON THE ROAD, IT WOULD BE UNREALISTIC TO CONSIDER IT A "RISK"
AT ALL, SINCE THE COST OF IT WAS ASSUMED, ALBEIT AT A FLAT RATE OF ONE
FOURTH CENT PER MILE, BY THE COMPANY UNDER THE TERMS OF A COLLECTIVE
BARGAINING AGREEMENT WITH THE LABOR UNION REPRESENTING THE DRIVERS. 
FN11  COMPARE CONSOLIDATED TRUCKING, INC., 41 M.C.C. 737; JACOBS
TRANSFER CO., 46 M.C.C. 265 (SHIPPERS' CONTROL OVER ROUTING AND
DISPATCHING HELD INSUFFICIENT TO CONSTITUTE PRIVATE CARRIAGE). 

FN12  SINCE SOME EQUIPMENT RENTAL FIRMS PAY FOR LIABILITY INSURANCE,
THE FINANCIAL BURDEN ASSUMED BY THE APPELLEES HERE MAY EVEN HAVE BEEN
LESS THAN THAT ASSUMED BY EQUIPMENT RENTAL FIRMS. 

FN13  THE COMMISSION DOES NOT CONSIDER ITSELF BOUND BY THE FORM IN
WHICH WAGE PAYMENTS ARE MADE AND OCCASIONALLY CONSIDERS WHO IT IS WHO
ACTUALLY BEARS THE WAGE BURDEN.  SEE ROY RITTENHOUSE, 78 M.C.C. 389. 
BUT EVEN THIS FACTOR IS NOT ALWAYS DETERMINATIVE.  PACIFIC DIESEL
RENTAL CO., 78 M.C.C. 161. 

FN14  THE REASONS FOR DIFFERENTIATING BETWEEN LONG AND SHORT HAULS,
AS RESPECTS THE OWNERSHIP OF THE TRACTORS USED IN EACH TYPE OF SERVICE,
HAVE ALREADY BEEN GIVEN.  SUPRA, NOTE 5. 

FN15  E.G., 69 I.C.C. ANN. REP. 99; 72 I.C.C. ANN. REP. 43; 73 I.C.C.
ANN. REP. 51; 74 I.C.C. ANN. REP. 57-58.  A THOROUGH STUDY OF THE "GRAY
AREA" - DEFINED AS "TRANSPORT OPERATIONS WHICH LIE BETWEEN LEGITIMATE
PRIVATE CARRIAGE AND THE TRANSPORTATION AUTHORIZED BY GOVERNMENT
REGULATORY BODIES" - WAS RECENTLY SUBMITTED TO THE SENATE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE BY THE COMMISSION'S BUREAU OF TRANSPORT
ECONOMICS AND STATISTICS.  IT RECOGNIZED THAT ONE MAJOR TYPE OF
OPERATION CONDUCTED IN ORDER TO AVOID REGULATION WAS THE "SHIPPER LEASE
OF VEHICLE WITH DRIVER."  I.C.C., BUREAU OF TRANSPORT ECONOMICS AND
STATISTICS, GRAY AREA OF TRANSPORTATION OPERATIONS (1960), 27-37. 

FN16  IN A LEADING DECISION THE COMMISSION SET DOWN A RULE WHEREBY
"IN CASES IN WHICH THE QUESTION OF THE STATUS CREATED BY A LEASE OF
EQUIPMENT WITH DRIVERS BY A CARRIER TO A SHIPPER IS PRESENTED, IN THE
ABSENCE OF A SHOWING TO THE CONTRARY, THE PRESUMPTION ARISES THAT THE
TRANSPORTATION IS PERFORMED BY THE CARRIER FOR COMPENSATION, IN OTHER
WORDS IS FOR-HIRE TRANSPORTATION AND AS SUCH IS SUBJECT TO
REGULATION."  H.B. CHURCH TRUCK SERVICE, 27 M.C.C. 191, 196.  I DO NOT
QUARREL WITH THE GENERAL VALIDITY OF THIS PRESUMPTION, ALTHOUGH, UNTIL
THE PRESENT CASE, EVEN THE COMMISSION THOUGHT IT APPLICABLE ONLY TO
LEASES BY THOSE WHO WERE OTHERWISE "FOR-HIRE" CARRIERS.  JOHN J.
CASALE, INC., 44 M.C.C. 45, 52-53.  IT IS ONLY BECAUSE THE "SHOWING TO
THE CONTRARY" IN THIS INSTANCE IS SO OVERWHELMING THAT I THINK IT WAS
IMPERMISSIBLE FOR THE COMMISSION TO APPLY THAT RULE HERE. 

FN17  THE COMPANY HERE ASSUMED THE FULL COST OF AN UNPRODUCTIVE BACK
HAUL, SINCE IT PAID ITS DRIVERS FOR THEIR TRACTORS AND THEIR SERVICES
WHETHER THE TRAILER RETURNED EMPTY OR FULL.  IF THE BACKHAUL WAS
PRODUCTIVE, FOUR CENTS PER MILE WAS ADDED TO THE TOTAL PAYMENT,
POSSIBLY AS COMPENSATION FOR INCREASED WEAR-AND-TEAR AND MORE RIGOROUS
DUTIES.  ALTHOUGH A LEASE OF EQUIPMENT MAY, UNDER CERTAIN
CIRCUMSTANCES, REQUIRE A LESSEE TO RETURN THE VEHICLE TO THE LOCATION
WHERE IT WAS FIRST TAKEN, LARGE RENTAL FIRMS DO PROVIDE FOR ONE-WAY
LEASES AT SLIGHTLY INCREASED RATES.  THE COMPANY MIGHT, THEREFORE, WELL
HAVE BEEN ABLE TO REDUCE ITS LOSS ON AN UNPRODUCTIVE BACKHAUL BY
LEASING EQUIPMENT ON TERMS WHICH WOULD HAVE PERMITTED IT TO RETURN THE
EQUIPMENT AT THE DESTINATION. 
..END :






















NATIONAL LABOR RELATIONS BOARD V. BRANDMAN IRON CO. 368 U.S. 399 


NO. 35.  DECIDED JANUARY 15, 1962 - REPORTED BELOW:  281 F.2D 797. 


CERTIORARI GRANTED; JUDGMENT REVERSED AND CASE REMANDED TO THE COURT
OF APPEALS TO ENTER JUDGMENT AFFIRMING AND ENFORCING A CEASE-AND-DESIST
ORDER OF THE NATIONAL LABOR RELATIONS BOARD AS CONSENTED TO BY
RESPONDENT - WITHOUT DELETION OF REFERENCES TO OTHER LABOR
ORGANIZATIONS. 

NATIONAL LABOR RELATIONS BOARD V. BRANDMAN IRON CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE RESPONDENT
CONSENTED TO THE ENTRY BY THE NATIONAL LABOR RELATIONS BOARD OF AN
ORDER DIRECTING IT TO CEASE AND DESIST FROM CERTAIN PRACTICES AS
REGARDS MEMBERSHIP OF ITS EMPLOYEES IN A NAMED LABOR ORGANIZATION "OR
ANY OTHER LABOR ORGANIZATION OF ITS EMPLOYEES."  THE RESPONDENT FURTHER
WAIVED ALL DEFENSES TO THE ENTRY BY THE COURT OF APPEALS OF A DECREE
ENFORCING SAID ORDER.  THE COURT OF APPEALS, SUA SPONTE, STRUCK THE
WORDS "OR ANY OTHER LABOR ORGANIZATION OF ITS EMPLOYEES" WHEREVER THEY
APPEARED IN THE BOARD'S ORDER.  281 F.2D 797.  THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED WITH DIRECTIONS
THAT A JUDGMENT BE ENTERED WHICH AFFIRMS AND ENFORCES THE BOARD ORDER. 
LABOR BOARD V. OCHOA FERTILIZER CORP., ANTE, P. 318. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :




















NATIONAL LABOR RELATIONS BOARD V. LAS VEGAS SAND & GRAVEL CORP. 368 U.S.
400 


NO. 38.  DECIDED JANUARY 15, 1962 - REPORTED BELOW:  283 F.2D 26. 


CERTIORARI GRANTED; JUDGMENT REVERSED AND CASE REMANDED TO THE COURT
OF APPEALS TO ENTER JUDGMENT AFFIRMING AND ENFORCING A CEASE-AND-DESIST
ORDER OF THE NATIONAL LABOR RELATIONS BOARD AS CONSENTED TO BY
RESPONDENT - WITHOUT DELETION OF REFERENCES TO OTHER LABOR
ORGANIZATIONS. 

NATIONAL LABOR RELATIONS BOARD V. LAS VEGAS SAND & GRAVEL CORP. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE RESPONDENT
CONSENTED TO THE ENTRY BY THE NATIONAL LABOR RELATIONS BOARD OF AN
ORDER DIRECTING IT TO CEASE AND DESIST FROM INTERFERING WITH ACTIVITIES
OF ITS EMPLOYEES ON BEHALF OF A NAMED LABOR ORGANIZATION "OR OF ANY
OTHER LABOR ORGANIZATION."  THE RESPONDENT FURTHER WAIVED ALL DEFENSES
TO THE ENTRY BY THE COURT OF APPEALS OF A DECREE ENFORCING SAID ORDER. 
THE COURT OF APPEALS, SUA SPONTE, STRUCK THE REFERENCES TO "ANY OTHER
LABOR ORGANIZATION" WHEREVER THEY APPEARED IN THE BOARD'S ORDER.  283
F.2D 26.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE
IS REMANDED WITH DIRECTIONS THAT A JUDGMENT BE ENTERED WHICH AFFIRMS
AND ENFORCES THE BOARD ORDER.  LABOR BOARD V. OCHOA FERTILIZER CORP.,
ANTE, P. 318. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :



















NATIONAL LABOR RELATIONS BOARD V. LOCAL 476, UNITED ASSOCIATION OF
JOURNEYMEN OF THE PLUMBING AND PIPEFITTING INDUSTRY, AFL-CIO 368 U.S.
401 


NO. 39.  DECIDED JANUARY 15, 1962 - REPORTED BELOW:  280 F.2D 441; 283
F.2D 26. 


CERTIORARI GRANTED; JUDGMENT REVERSED AND CASE REMANDED TO THE COURT
OF APPEALS TO ENTER JUDGMENT AFFIRMING AND ENFORCING A CEASE-AND-DESIST
ORDER OF THE NATIONAL LABOR RELATIONS BOARD - WITHOUT DELETION OF
REFERENCES TO OTHER EMPLOYERS AND OTHER PERSONS. 

NATIONAL LABOR RELATIONS BOARD V. LOCAL 476, UNITED ASSOCIATION OF
JOURNEYMEN OF THE PLUMBING AND PIPEFITTING INDUSTRY, AFL-CIO, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  IN UNFAIR LABOR
PRACTICE PROCEEDINGS BEFORE THE NATIONAL LABOR RELATIONS BOARD
RESPONDENTS DID NOT EXCEPT TO THE TERMS OF AN ORDER DIRECTING THEM TO
CEASE AND DESIST FROM CERTAIN PRACTICES FOUND TO VIOLATE SEC.
8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. SEC.
158(B)(4)(A), AS REGARDS THE EMPLOYEES OF A NAMED EMPLOYER "OR ANY
OTHER EMPLOYER" WHERE AN OBJECT IS TO FORCE OR REQUIRE THE NAMED
EMPLOYER "OR ANY OTHER EMPLOYER OR PERSON" TO CEASE DOING BUSINESS WITH
A NAMED PRIMARY CONTRACTOR.  THE COURT OF APPEALS IN ENFORCEMENT
PROCEEDINGS MODIFIED THE ORDER, AMONG OTHER WAYS, BY STRIKING THE
REFERENCES TO "ANY OTHER EMPLOYER" AND TO "ANY OTHER EMPLOYER OR
PERSON."  283 F.2D 26.  THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CASE IS REMANDED WITH DIRECTIONS THAT A JUDGMENT BE
ENTERED WHICH AFFIRMS AND ENFORCES THE BOARD ORDER AFTER RESTORING
THESE DELETED PROVISIONS.  LABOR BOARD V. CHENEY CALIFORNIA LUMBER CO.,
327 U.S. 385; SEC. 10(E), 49 STAT. 454, AS AMENDED, 29 U.S.C. SEC.
160(E).  SEE ALSO LABOR BOARD V. OCHOA FERTILIZER CORP., ANTE, P. 318. 

..END :













HODGE V. IOWA 368 U.S. 402 


NO. 149, MISC.  DECIDED JANUARY 15, 1962 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 252 IOWA 449, 105 N.W.2D 613. 


HODGE V. IOWA. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION CERTIORARI SHOULD BE GRANTED. 
..END :














NEW YORK CENTRAL RAILROAD CO. V. UNITED STATES 368 U.S. 349 


NO. 482.  DECIDED JANUARY 8, 1962 - 194 F. SUPP. 947, AFFIRMED. 


NEW YORK CENTRAL RAILROAD CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SAVE WAY NORTHERN BOULEVARD, INC. V. NEW YORK 368 U.S. 349 


NO. 517.  DECIDED JANUARY 8, 1962 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  10 N.Y.2D 727, 748, 176
N.E.2D 839, 177 N.E.2D 47. 


SAVE WAY NORTHERN BOULEVARD, INC., V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BONNER V. INDIANAPOLIS 368 U.S. 350 


NO. 546.  DECIDED JANUARY 8, 1962* - APPEALS DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  242 IND. - , 174 N.E.2D 55; 242 IND. - , 174
N.E.2D 54. 

*TOGETHER WITH NO. 547, DURHAM V. CITY OF INDIANAPOLIS, ALSO ON
APPEAL FROM THE SAME COURT. 


BONNER V. CITY OF INDIANAPOLIS. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEALS ARE DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEALS WERE TAKEN AS PETITIONS FOR
WRITS OF CERTIORARI, CERTIORARI IS DENIED. 
..END :












UNITED STATES V. UNION CENTRAL LIFE INSURANCE CO. 368 U.S. 291 


NO. 52.  ARGUED NOVEMBER 7, 1961 - DECIDED DECEMBER 18, 1961.  - 361
MICH. 283, 105 N.W.2D 196, REVERSED. 


BECAUSE A MICHIGAN STATUTE THEN REQUIRED THAT A NOTICE OF A FEDERAL
TAX LIEN MUST CONTAIN A DESCRIPTION OF THE LAND UPON WHICH THE LIEN WAS
CLAIMED AND IT WAS THE PRACTICE OF COUNTY OFFICIALS TO REFUSE TO ACCEPT
FOR RECORDING NOTICES OF FEDERAL TAX LIENS NOT CONTAINING SUCH
DESCRIPTIONS, NOTICE OF A FEDERAL TAX LIEN "UPON ALL PROPERTY" OR
CERTAIN DELINQUENT TAXPAYERS (NOT DESCRIBING THE PROPERTY) WAS FILED
INSTEAD IN THE OFFICE OF THE CLERK OF THE FEDERAL DISTRICT COURT FOR
THE JUDICIAL DISTRICT IN WHICH CERTAIN REAL ESTATE BELONGING TO THEM
WAS SITUATED, AS PROVIDED IN SEC. 3672(A)(2) OF THE INTERNAL REVENUE
CODE OF 1939, AS AMENDED.  HELD:  NO STATE LAW "AUTHORIZED THE FILING
OF SUCH NOTICE IN AN OFFICE WITHIN THE STATE," WITHIN THE MEANING OF
SEC. 3672(A)(1), AND THE FEDERAL TAX LIEN WAS VALID AND ENTITLED TO
PRIORITY OVER A MORTGAGE RECORDED SUBSEQUENTLY IN ACCORDANCE WITH STATE
LAW.  PP. 291-296. 

UNITED STATES V. UNION CENTRAL LIFE INSURANCE CO. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
FRANKFURTER. 

ROBERT G. PETERS, JR., AND HIS WIFE, OF OAKLAND COUNTY, MICHIGAN,
FAILED TO PAY THEIR 1952 FEDERAL INCOME TAXES.  IN JANUARY 1954 AN
ASSESSMENT FOR THIS DELINQUENCY WAS FILED IN THE INTERNAL REVENUE
COLLECTOR'S OFFICE AT DETROIT, MICHIGAN, AT WHICH TIME A LIEN AROSE "IN
FAVOR OF THE UNITED STATES UPON ALL PROPERTY" OF THE TWO DELINQUENT
TAXPAYERS.  (FN1)  SOME 10 MONTHS AFTER THE GOVERNMENT'S TAX LIEN
AROSE, MR. AND MRS. PETERS EXECUTED A MORTGAGE ON REAL PROPERTY THEY
OWNED IN OAKLAND COUNTY TO SECURE AN INDEBTEDNESS TO THE RESPONDENT
UNION CENTRAL LIFE INSURANCE COMPANY.  THEY DEFAULTED IN PAYMENT OF THE
MORTGAGE, AND UNION CENTRAL FILED THIS ACTION TO FORECLOSE IN THE
CIRCUIT COURT OF OAKLAND COUNTY, JOINING THE UNITED STATES AS A PARTY
DEFENDANT BECAUSE OF ITS ASSERTED LIEN. 

THE COMPANY CLAIMED PRIORITY FOR ITS MORTGAGE OVER THE EARLIER
CREATED FEDERAL LIEN BECAUSE NO NOTICE OF THE FEDERAL LIEN HAD BEEN
FILED WITH THE REGISTER OF DEEDS IN OAKLAND COUNTY AS THEN REQUIRED BY
MICHIGAN LAW.  (FN2)  FOR THIS ALLEGED PRIORITY THE COMPANY RELIED ON
SEC. 3672(A)(1) OF THE 1939 INTERNAL REVENUE CODE, AS AMENDED,
PROVIDING THAT A FEDERAL TAX LIEN SHALL NOT BE VALID AS AGAINST ANY
MORTGAGEE UNTIL NOTICE HAS BEEN FILED "IN THE OFFICE IN WHICH THE
FILING OF SUCH NOTICE IS AUTHORIZED BY THE LAW OF THE STATE OR
TERRITORY IN WHICH THE PROPERTY SUBJECT TO THE LIEN IS SITUATED,
WHENEVER THE STATE OR TERRITORY HAS BY LAW AUTHORIZED THE FILING OF
SUCH NOTICE IN AN OFFICE WITHIN THE STATE OR TERRITORY."  THE
GOVERNMENT, HOWEVER, CLAIMED THAT MICHIGAN HAD NOT "AUTHORIZED" FILING
WITHIN THE MEANING OF THE STATUTE AND THAT THE CASE SHOULD BE GOVERNED
BY SEC. 3672(A)(2) WHICH PROVIDES THAT "WHENEVER THE STATE  ...  HAS
NOT BY LAW AUTHORIZED THE FILING OF SUCH NOTICE IN AN OFFICE WITHIN THE
STATE," THE NOTICE MAY BE FILED 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."  SINCE THE FEDERAL LIEN HAD
BEEN FILED IN THE DISTRICT COURT MONTHS BEFORE THE MORTGAGE WAS
EXECUTED AND FILED IN THE COUNTY REGISTER OF DEEDS' OFFICE, THE
GOVERNMENT CLAIMED THAT ITS LIEN HAD PRIORITY.  THE GOVERNMENT'S
CONTENTION THAT MICHIGAN HAD NOT "AUTHORIZED" A STATE OFFICE FOR FILING
THE FEDERAL TAX NOTICE WAS BASED ON THE FACT THAT THE MICHIGAN LAW
PURPORTING TO AUTHORIZE SUCH FILING EXPRESSLY REQUIRED THAT A FEDERAL
TAX LIEN NOTICE CONTAIN "A DESCRIPTION OF THE LAND UPON WHICH A LIEN IS
CLAIMED," EVEN THOUGH THE FORM LONG USED FOR FILING FEDERAL TAX LIEN
NOTICES IN THE DISTRICT COURTS THROUGHOUT THE UNITED STATES DOES NOT
CONTAIN A DESCRIPTION OF ANY PARTICULAR PROPERTY UPON WHICH THE LIEN IS
ASSERTED.  IN SUPPORT OF ITS CONTENTION THE GOVERNMENT POINTED TO THE
FACT THAT IN 1953 THE MICHIGAN ATTORNEY GENERAL RULED THAT FEDERAL TAX
LIEN NOTICES NOT CONTAINING SUCH A DESCRIPTION ARE NOT ENTITLED TO
RECORDATION, AND IT IS STIPULATED THAT FROM THE TIME OF THAT RULING, UP
TO 1956, (FN3) "IT WAS THE POLICY OF THE OFFICE OF THE REGISTER OF
DEEDS FOR SAID COUNTY OF OAKLAND NOT TO ACCEPT FOR RECORDING NOTICES OF
FEDERAL TAX LIENS WHICH DID NOT CONTAIN A LEGAL DESCRIPTION OF ANY
LAND." 

BECAUSE THE UNITED STATES HAD NOT FILED A NOTICE COMPLYING WITH THE
MICHIGAN LAW, THE MICHIGAN CIRCUIT AND SUPREME COURTS HELD THE FEDERAL
LIEN TO BE SUBORDINATE TO THE MORTGAGE, 361 MICH. 283, 105 N.W.2D 196. 
WHILE THIS HOLDING IS IN ACCORD WITH YOUNGBLOOD V. UNITED STATES, 141
F.2D 912 (C.A. 6TH CIR.), IT CONFLICTS WITH UNITED STATES V. RASMUSON,
253 F.2D 944 (C.A. 8TH CIR.).  IN ORDER TO SETTLE THIS CONFLICT AND
BECAUSE OF THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE
REVENUE LAWS, WE GRANTED CERTIORARI.  365 U.S. 858. 

THE MICHIGAN REQUIREMENT THAT NOTICE OF THE FEDERAL TAX LIEN BE FILED
IN MICHIGAN IS, OF COURSE, NOT CONTROLLING UNLESS CONGRESS HAS MADE IT
SO, FOR THE SUBJECT OF FEDERAL TAXES, INCLUDING "REMEDIES FOR THEIR
COLLECTION, HAS ALWAYS BEEN CONCEDED TO BE INDEPENDENT OF THE
LEGISLATIVE ACTION OF THE STATES."  UNITED STATES V. SNYDER, 149 U.S.
210, 214.  WHILE SEC. 3672(A)(1) UNQUESTIONABLY REQUIRES NOTICE OF A
FEDERAL LIEN TO BE FILED IN A STATE OFFICE WHEN THE STATE
AUTHORITATIVELY DESIGNATES AN OFFICE FOR THAT PURPOSE, THE SECTION DOES
NOT PURPORT TO PERMIT THE STATE TO PRESCRIBE THE FORM OR THE CONTENTS
OF THAT NOTICE.  SINCE SUCH AN AUTHORIZATION MIGHT WELL RESULT IN
RADICALLY DIFFERING FORMS OF FEDERAL TAX NOTICES FOR THE VARIOUS
STATES, IT WOULD RUN COUNTER TO THE PRINCIPLE OF UNIFORMITY WHICH HAS
LONG BEEN THE ACCEPTED PRACTICE IN THE FIELD OF FEDERAL TAXATION. 
MOREOVER, A REQUIRED COMPLIANCE WITH MICHIGAN LAW WOULD MEAN THAT THE
FEDERAL TAX LIEN WOULD BE SUPERIOR TO ALL THOSE ENTITLED TO NOTICE ONLY
AS TO THE PROPERTY DESCRIBED IN THE NOTICE EVEN THOUGH SEC. 3670
BROADLY CREATES A LIEN "UPON ALL PROPERTY AND RIGHTS TO PROPERTY,
WHETHER REAL OR PERSONAL, BELONGING TO" A TAXPAYER.  THIS LANGUAGE HAS
BEEN HELD TO INCLUDE IN THE LIEN ALL PROPERTY OWNED BY THE DELINQUENT
TAXPAYER BOTH AT THE TIME THE LIEN ARISES AND THEREAFTER UNTIL IT IS
PAID.  (FN4)  IT SEEMS OBVIOUS THAT THIS EXPANSIVE PROTECTION FOR THE
GOVERNMENT WOULD BE GREATLY REDUCED IF TO ENFORCE IT GOVERNMENT AGENTS
WERE COMPELLED TO KEEP AWARE AT ALL TIMES OF ALL PROPERTY COMING INTO
THE HANDS OF ITS TAX DELINQUENTS.  IMPOSITION OF SUCH A TASK BY THE
MICHIGAN LAW COULD SERIOUSLY CRIPPLE THE GOVERNMENT IN THE COLLECTION
OF ITS TAXES, AND TO ATTRIBUTE TO CONGRESS A PURPOSE SO TO WEAKEN THE
TAX LIENS IT HAS CREATED WOULD REQUIRE VERY CLEAR LANGUAGE.  THE
HISTORY OF SEC. 3672 BELIES ANY SUCH CONGRESSIONAL PURPOSE. 

IN 1893 THIS COURT DECIDED IN UNITED STATES V. SNYDER, 149 U.S. 210,
THAT THE FEDERAL TAX LIEN COULD BE ENFORCED AGAINST BONA FIDE
PURCHASERS WHO HAD NO NOTICE OF THE LIEN, DESPITE A STATE LAW
ATTEMPTING TO DEFEAT THE LIEN UNLESS IT HAS BEEN RECORDED.  IN ORDER TO
GRANT RELIEF FROM THE SNYDER RULE, CONGRESS IN 1913 PASSED AN ACT
REQUIRING, MUCH AS THE PROVISION HERE IN QUESTION DID, THAT THE TAX
LIENS SHOULD NOT BE "VALID AS AGAINST ANY MORTGAGEE, PURCHASER, OR
JUDGMENT CREDITOR" UNTIL NOTICE WAS FILED WITH THE CLERK OF AN
APPROPRIATE DISTRICT COURT OR, WHENEVER A STATE AUTHORIZED SUCH FILING,
IN THE OFFICE OF A COUNTY RECORDER OF DEEDS.  (FN5) THIS STATUTE WAS
AMENDED IN 1928 BY ADDING THAT THE LIEN WOULD NOT BE VALID UNTIL NOTICE
WAS FILED "IN ACCORDANCE WITH THE LAW OF THE STATE OR TERRITORY IN
WHICH THE PROPERTY SUBJECT TO THE LIEN IS SITUATED, WHENEVER THE STATE
OR TERRITORY HAS BY LAW PROVIDED FOR THE FILING OF SUCH NOTICE  ...
."  (FN6)  FOLLOWING THIS IN UNITED STATES V. MANIACI, 36 F. SUPP. 293,
AFF'D, 116 F.2D 935, BOTH A UNITED STATES DISTRICT COURT AND A COURT OF
APPEALS REFUSED TO ENFORCE A FEDERAL TAX LIEN ON MICHIGAN PROPERTY
BECAUSE THE NOTICE OF LIEN, ALTHOUGH FILED BOTH IN A DISTRICT COURT AND
IN THE OFFICE OF THE PROPER MICHIGAN REGISTER OF DEEDS, DID NOT CONTAIN
THE DESCRIPTION OF THE PROPERTY REQUIRED BY MICHIGAN LAW.  IN THIS
HOLDING EMPHASIS WAS PLACED ON THE CLAUSE ADDED IN 1928, REQUIRING
NOTICE TO BE FILED "IN ACCORDANCE WITH THE LAW OF THE STATE OR
TERRITORY IN WHICH THE PROPERTY SUBJECT TO THE LIEN IS SITUATED  ...
." 

LESS THAN TWO YEARS AFTER THE MANIACI HOLDING CONGRESS AGAIN AMENDED
THE LIEN NOTICE PROVISIONS, STRUCK OUT "IN ACCORDANCE WITH THE LAW OF
THE STATE OR TERRITORY" AND SUBSTITUTED THE LANGUAGE IN THE SECTION
HERE CONTROLLING THAT NOTICE WAS NOT VALID UNTIL FILED "IN THE OFFICE
IN WHICH THE FILING OF SUCH NOTICE IS AUTHORIZED BY THE LAW OF THE
STATE OR TERRITORY."  (FN7)  THE REPORTS OF THE HOUSE AND SENATE
COMMITTEES REPORTING THIS AMENDMENT POINT STRONGLY TO A PURPOSE TO GET
AWAY FROM THE RULING IN THE MANIACI CASE AND MAKE IT CLEAR THAT, WHILE
NOTICE OF A FEDERAL LIEN MUST BE FILED IN A STATE OFFICE WHERE
AUTHORIZED BY A STATE, THE NOTICE IS SUFFICIENT IF GIVEN IN THE FORM
LONG USED BY THE DEPARTMENT "WITHOUT REGARD TO OTHER GENERAL
REQUIREMENTS WITH RESPECT TO RECORDING PRESCRIBED BY THE LAW OF SUCH
STATE OR TERRITORY."  (FN8)  THE DEPARTMENT NEVER ACCEPTED THE MANIACI
CASE AND ITS PRACTICE HAS BEEN TO USE FORMS WHICH DO NOT CONTAIN A
PARTICULAR DESCRIPTION OF ANY PROPERTY OWNED BY A DELINQUENT TAXPAYER. 
THE NOTICE PROVISIONS WERE ONCE MORE AMENDED IN THE 1954 CODE, THIS
TIME PROVIDING THAT THE NOTICE SHALL BE VALID IF IN THE DEPARTMENT FORM
"NOTWITHSTANDING ANY LAW OF THE STATE OR TERRITORY REGARDING THE FORM
OR CONTENT OF A NOTICE OF LIEN."  (FN9)  THE HOUSE REPORT STATED THAT
THIS AMENDMENT WAS MERELY "DECLARATORY OF THE EXISTING PROCEDURE AND IN
ACCORDANCE WITH THE LONG-CONTINUED PRACTICE OF THE TREASURY
DEPARTMENT."  (FN10)  THE MICHIGAN LAW AUTHORIZING FILING ONLY IF A
DESCRIPTION OF THE PROPERTY WAS GIVEN PLACED OBSTACLES TO THE
ENFORCEMENT OF FEDERAL TAX LIENS THAT CONGRESS HAD NOT PERMITTED, AND
CONSEQUENTLY NO STATE OFFICE WAS "AUTHORIZED" FOR FILING WITHIN THE
MEANING OF THE FEDERAL STATUTE.  IT WAS THEREFORE ERROR FOR THE
MICHIGAN COURTS TO FAIL TO GIVE PRIORITY TO THE GOVERNMENT'S LIEN HERE,
NOTICE OF WHICH HAD BEEN FILED IN THE DISTRICT COURT IN ACCORDANCE WITH
FEDERAL LAW. 

THE JUDGMENT OF THE MICHIGAN SUPREME COURT IS REVERSED AND THE CAUSE
IS REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  SECTIONS 3670 AND 3671 OF THE INTERNAL REVENUE CODE OF 1939, IN
EFFECT AT THAT TIME. 

FN2  ACT 104, PUBLIC ACTS OF MICHIGAN OF 1923, REPEALED APRIL 13,
1956, BY ACT 107, PUBLIC ACTS OF MICHIGAN OF 1956. 

FN3  ACT 104 WAS REPEALED APRIL 13, 1956. 

FN4  GLASS CITY BANK V. UNITED STATES, 326 U.S. 265. 

FN5  37 STAT. 1016. 

FN6  45 STAT. 876. 

FN7  56 STAT. 957, SEC. 3672(A)(1) OF THE INTERNAL REVENUE CODE OF
1939, AS AMENDED. 

FN8  H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 173.  SEE ALSO S. REP.
NO. 1631, 77TH CONG., 2D SESS. 248. 

FN9  SECTION 6323(B) OF THE INTERNAL REVENUE CODE OF 1954. 

FN10  H.R. REP. NO. 1337, 83D CONG., 2D SESS. A406-A407. 
..END :








CAMPBELL V. HUSSEY 368 U.S. 297 


NO. 42.  ARGUED NOVEMBER 14-15, 1961 - DECIDED DECEMBER 18, 1961 - 189
F. SUPP. 54, AFFIRMED. 


BY THE FEDERAL TOBACCO INSPECTION ACT, CONGRESS PROVIDED FOR THE
ESTABLISHMENT OF UNIFORM STANDARDS OF CLASSIFICATION AND INSPECTION OF
TOBACCO FOR THE PROTECTION OF INTERSTATE COMMERCE AND AUTHORIZED THE
SECRETARY OF AGRICULTURE "TO ESTABLISH STANDARDS FOR TOBACCO BY WHICH
ITS TYPE, GRADE, SIZE, CONDITION, OR OTHER CHARACTERISTICS MAY BE
DETERMINED, WHICH STANDARDS SHALL BE THE OFFICIAL STANDARDS OF THE
UNITED STATES."  PURSUANT THERETO, THE SECRETARY PRESCRIBED BY
REGULATION THAT, "TOBACCO WHICH HAS THE SAME CHARACTERISTICS AND
CORRESPONDING QUALITIES, COLORS, AND LENGTHS SHALL BE TREATED AS ONE
TYPE, REGARDLESS OF ANY FACTORS OF HISTORICAL OR GEOGRAPHICAL NATURE
WHICH CANNOT BE DETERMINED BY AN EXAMINATION OF THE TOBACCO."  THE
REGULATIONS DEFINE TYPE 14 AS "THAT TYPE OF FLUE-CURED TOBACCO COMMONLY
KNOWN AS SOUTHERN FLUE-CURED OR NEW BELT OF GEORGIA, FLORIDA, AND
ALABAMA, PRODUCED PRINCIPALLY IN THE SOUTHERN SECTION OF GEORGIA AND TO
SOME EXTENT IN FLORIDA AND ALABAMA."  WHEN THE TOBACCO IS OFFERED FOR
SALE, THE FEDERAL REGULATIONS REQUIRE THAT IT BE IDENTIFIED BY A BLUE
TAG WHICH STATES THE TYPE AND GRADE THEREOF.  A GEORGIA LAW REQUIRES
TYPE 14 TOBACCO GROWN IN GEORGIA TO BE IDENTIFIED BY A WHITE TAG. 
HELD:  THE FEDERAL LAW PRE-EMPTS THE FIELD AND EXCLUDES STATE
REGULATION, EVEN THOUGH THE LATTER DOES NO MORE THAN SUPPLEMENT THE
FORMER.   THEREFORE, THE GEORGIA STATUTE REQUIRING TYPE 14 TOBACCO TO
BE IDENTIFIED WITH A WHITE TAG WHEN IT IS GROWN IN GEORGIA IS
UNCONSTITUTIONAL.  PP. 298-302. 

CAMPBELL, COMMISSIONER OF AGRICULTURE OF GEORGIA, ET AL. V. HUSSEY ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF GEORGIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT BY OWNERS AND OPERATORS OF TOBACCO WAREHOUSES
IN GEORGIA TO ENJOIN OFFICIALS OF GEORGIA FROM ENFORCING CERTAIN
PROVISIONS OF THE GEORGIA TOBACCO IDENTIFICATION ACT.  GA. LAWS 1960,
NO. 557, P. 214.  A THREE-JUDGE COURT WAS CONVENED, 28 U.S.C. SECS.
2281, 2284, AND IT GRANTED THE RELIEF.  189 F. SUPP. 54.  THE CASE IS
HERE BY DIRECT APPEAL.  (FN1)  28 U.S.C.  SEC. 1253. 

THE PROVISIONS OF THE GEORGIA ACT THAT ARE CHALLENGED CONCERN TYPE 14
FLUE-CURED LEAF TOBACCO.  IT IS DEFINED IN SEC. 1 OF THE ACT AS "THAT
FLUE-CURED LEAF TOBACCO GROWN IN THE TRADITIONAL LOOSE-LEAF AREA WHICH
CONSISTS OF THE STATES OF GEORGIA, FLORIDA, AND ALABAMA."  BY SEC.
13(A) OF THE ACT TYPE 14 TOBACCO RECEIVED IN A WAREHOUSE FOR SALE (FN2)
SHALL BE MARKED WITH A "WHITE SHEET TICKET." 

SALES AT THESE WAREHOUSES ARE SALES WITHIN THE COMPETENCE OF CONGRESS
TO REGULATE.  AS STATED IN MULFORD V. SMITH, 307 U.S. 38, 47:  "IN
GEORGIA NEARLY ONE HUNDRED PER CENT. OF THE TOBACCO SO SOLD IS
PURCHASED BY EXTRA-STATE PURCHASERS.  IN MARKETS WHERE TOBACCO IS SOLD
TO BOTH INTERSTATE AND INTRASTATE PURCHASERS IT IS NOT KNOWN, WHEN THE
GROWER PLACES HIS TOBACCO ON THE WAREHOUSE FLOOR FOR SALE, WHETHER IT
IS DESTINED FOR INTERSTATE OR INTRASTATE COMMERCE.  REGULATION TO BE
EFFECTIVE, MUST, AND THEREFORE MAY CONSTITUTIONALLY, APPLY TO ALL
SALES." 

CONGRESS IN 1935 ENACTED THE TOBACCO INSPECTION ACT, 49 STAT. 731, 7
U.S.C. SEC. 511, AND IN ITS DECLARATION OF PURPOSE, SEC. 2, 7 U.S.C.
SEC. 511A, STATED: 

"  ...  THE CLASSIFICATION OF TOBACCO ACCORDING TO TYPE, GRADE, AND
OTHER CHARACTERISTICS AFFECTS THE PRICES RECEIVED THEREFOR BY
PRODUCERS; WITHOUT UNIFORM STANDARDS OF CLASSIFICATION AND INSPECTION
THE EVALUATION OF TOBACCO IS SUSCEPTIBLE TO SPECULATION, MANIPULATION,
AND CONTROL, AND UNREASONABLE FLUCTUATIONS IN PRICES AND QUALITY
DETERMINATIONS OCCUR WHICH ARE DETRIMENTAL TO PRODUCERS AND PERSONS
HANDLING TOBACCO IN COMMERCE; SUCH FLUCTUATIONS CONSTITUTE A BURDEN
UPON COMMERCE AND MAKE THE USE OF UNIFORM STANDARDS OF CLASSIFICATION
AND INSPECTION IMPERATIVE FOR THE PROTECTION OF PRODUCERS AND OTHERS
ENGAGED IN COMMERCE AND THE PUBLIC INTEREST THEREIN." 

BY SEC. 511B THE SECRETARY OF AGRICULTURE IS AUTHORIZED "TO ESTABLISH
STANDARDS FOR TOBACCO BY WHICH ITS TYPE, GRADE, SIZE, CONDITION, OR
OTHER CHARACTERISTICS MAY BE DETERMINED, WHICH STANDARDS SHALL BE THE
OFFICIAL STANDARDS OF THE UNITED STATES  ...  ." 

DETAILED STANDARDS HAVE BEEN PRESCRIBED BY THE SECRETARY.  AS TO THE
"TYPE" OF TOBACCO, THE REGULATIONS STATE:  "  ...  TOBACCO WHICH HAS
THE SAME CHARACTERISTICS AND CORRESPONDING QUALITIES, COLORS, AND
LENGTHS SHALL BE TREATED AS ONE TYPE, REGARDLESS OF ANY FACTORS OF
HISTORICAL OR GEOGRAPHICAL NATURE WHICH CANNOT BE DETERMINED BY AN
EXAMINATION OF THE TOBACCO."  7 CFR, 1961 CUM. SUPP., SEC. 29.1096. 

TYPE 14 IS DEFINED AS "THAT TYPE OF FLUE-CURED TOBACCO COMMONLY KNOWN
AS SOUTHERN FLUE-CURED OR NEW BELT OF GEORGIA, FLORIDA, AND ALABAMA,
PRODUCED PRINCIPALLY IN THE SOUTHERN SECTION OF GEORGIA AND TO SOME
EXTENT IN FLORIDA AND ALABAMA."  7 CFR, 1961 CUM. SUPP., SEC. 29.1100. 

THE REGULATIONS ALSO PROVIDE THAT THE CLASSIFICATION OF THE TOBACCO
BY TYPE BE PLACED ON A FEDERAL INSPECTION CERTIFICATE AND ANNOUNCED AT
THE TIME THE LOT IS OFFERED IN THE AUCTION (7 CFR SEC. 29.80, 7 CFR,
1961 CUM. SUPP., SEC. 29.1144) - AN IDENTIFICATION MADE BY A BLUE
TICKET. 

THE QUESTION IS WHETHER THE FEDERAL SCHEME OF REGULATION HAS LEFT
ROOM FOR GEORGIA TO IDENTIFY TYPE 14 TOBACCO WITH A WHITE TAG WHEN IT
IS GROWN IN GEORGIA, FLORIDA, OR ALABAMA. 

IT IS EARNESTLY ARGUED THAT THERE IS NO CONFLICT BETWEEN GEORGIA'S
REGULATION AND THE FEDERAL LAW, AS ALL THAT GEORGIA REQUIRES IS THAT
TYPE 14 TOBACCO, GROWN IN GEORGIA, BE LABELED AS SUCH.  IN THAT
CONNECTION IT IS POINTED OUT THAT TYPE 14 TOBACCO AS DEFINED BY THE
FEDERAL REGULATIONS INCLUDES TOBACCO "PRODUCED PRINCIPALLY" IN GEORGIA,
FLORIDA, AND ALABAMA AND THAT LABELING IT BY ITS GEOGRAPHICAL ORIGIN
MERELY SUPPLEMENTS THE FEDERAL REGULATION AND DOES NOT CONFLICT WITH
IT. 

WE DO NOT HAVE HERE THE QUESTION WHETHER GEORGIA'S LAW CONFLICTS WITH
THE FEDERAL LAW.  RATHER WE HAVE THE QUESTION OF PRE-EMPTION.  UNDER
THE FEDERAL LAW THERE CAN BE BUT ONE "OFFICIAL" STANDARD - ONE THAT IS
"UNIFORM" AND THAT ELIMINATES ALL CONFUSION (FN3) BY CLASSIFYING
TOBACCO NOT BY GEOGRAPHICAL ORIGIN BUT BY ITS CHARACTERISTICS.  IN
OTHER WORDS, OUR VIEW IS THAT CONGRESS, IN LEGISLATING CONCERNING THE
TYPES OF TOBACCO SOLD AT AUCTION, PREEMPTED THE FIELD AND LEFT NO ROOM
FOR ANY SUPPLEMENTARY STATE REGULATION CONCERNING THOSE SAME TYPES.  AS
WE HAVE SEEN, THE FEDERAL TOBACCO INSPECTION ACT IN SEC. 2, 7 U.S.C.
SEC. 511A, SAYS THAT "UNIFORM STANDARDS OF CLASSIFICATION AND
INSPECTION" ARE "IMPERATIVE FOR THE PROTECTION OF PRODUCERS AND OTHERS
ENGAGED IN COMMERCE AND THE PUBLIC INTEREST THEREIN."  THE HOUSE REPORT
NO. 1102, 74TH CONG., 1ST SESS., REVIEWED AT LENGTH THE HARM TO GROWERS
THAT RESULTED FROM THE ABSENCE OF REGULATIONS GOVERNING THE "GRADES" OF
TOBACCO SOLD ON THE AUCTION MARKET.  "THERE ARE BETWEEN 60 AND 100
GRADES IN A SINGLE TYPE OF TOBACCO, AND IT IS NOT PRACTICAL FOR A
FARMER TO FAMILIARIZE HIMSELF WITH THE TECHNICAL FACTORS ON WHICH THESE
GRADES ARE BASED  ...  ."  ID., P. 2.  THE NEED FOR "A DEFINITE
STANDARD" OF GRADING, ID., P. 2, OR OF "STANDARD GRADES," ID., P. 4,
WAS REPEATED OVER AND AGAIN.  THE IMPORTANCE OF A "STANDARD GRADE" WAS
EMPHASIZED IN THE DEBATES ON THE FLOOR OF THE HOUSE.  CONGRESSMAN
HANCOCK STATED THAT THIS LEGISLATION PROVIDED THAT TOBACCO ON THE
AUCTION MARKET "WOULD BE INSPECTED BY COMPETENT JUDGES OF TOBACCO IN
GOVERNMENT EMPLOY AND GRADED ACCORDING TO UNITED STATES STANDARDS OF
QUALITY  ... ."  79 CONG. REC. 11870.  CONGRESSMAN MITCHELL ADDED THAT
"STANDARD GRADES WOULD SERVE AS A GUIDE TO FARMERS IN CLASSIFYING THEIR
TOBACCO FOR MARKET."  ID., 11878.  THE SENATE REPORT NO. 1211, 74TH
CONG., 1ST SESS., BASED ITS APPROVAL OF THE BILL ON A REPORT MADE BY
THE DEPARTMENT OF AGRICULTURE.  AFTER STATING THAT THE PURPOSE OF THE
BILL WAS TO PROVIDE "UNIFORM STANDARDS" FOR THE PROTECTION OF FARMERS,
THE REPORT ADDED"  "THE BILL WOULD AUTHORIZE THE SECRETARY OF
AGRICULTURE TO ESTABLISH STANDARDS FOR TOBACCO BY WHICH ITS TYPE,
GRADE, SIZE, CONDITION, OR OTHER CHARACTERISTICS MAY BE DETERMINED, AND
THE STANDARDS SO ESTABLISHED WOULD BE THE OFFICIAL STANDARDS OF THE
UNITED STATES FOR SUCH PURPOSE."  ID., P. 1. 

THE ACT, AS WE HAVE SEEN, ADOPTS THAT VIEW BY MAKING THE "TYPE,
GRADE, SIZE, CONDITION" GIVEN INSPECTED TOBACCO "THE OFFICIAL STANDARDS
OF THE UNITED STATES."  SEC. 3, 7 U.S.C.  SEC. 511B.  THE REGULATIONS
ARE PRECISE AND UNEQUIVOCAL IN SAYING WHAT THOSE "OFFICIAL STANDARDS"
ARE.  AMONG OTHER THINGS THEY SAY, AS ALREADY NOTED, THAT TOBACCO
"WHICH HAS THE SAME CHARACTERISTICS AND CORRESPONDING QUALITIES,
COLORS, AND LENGTHS SHALL BE TREATED AS ONE TYPE, REGARDLESS OF ANY
FACTORS OF HISTORICAL OR GEOGRAPHICAL NATURE WHICH CANNOT BE DETERMINED
BY AN EXAMINATION OF THE TOBACCO."  7 CFR, 1961 CUM. SUPP., SEC.
29.1096.  TOBACCO IS INCLUDABLE IN TYPE 14, REGARDLESS OF WHERE IT MAY
HAVE BEEN GROWN, PROVIDED IT MEETS THE SPECIFICATIONS OF THAT TYPE. 

WE HAVE THEN A CASE WHERE THE FEDERAL LAW EXCLUDES LOCAL REGULATION,
EVEN THOUGH THE LATTER DOES NO MORE THAN SUPPLEMENT THE FORMER.  UNDER
THE DEFINITION OF TYPES OR GRADES OF TOBACCO AND THE LABELING WHICH THE
FEDERAL GOVERNMENT HAS ADOPTED, COMPLEMENTARY STATE REGULATION IS AS
FATAL AS STATE REGULATIONS WHICH CONFLICT WITH THE FEDERAL SCHEME. 
MISSOURI PACIFIC R. CO. V. PORTER, 273 U.S. 341, 346; RICE V. SANTA FE
ELEVATOR CORP., 331 U.S. 218, 230; HOOD & SONS V. DU MOND, 336 U.S.
525, 543.  AFFIRMED. 

FN1  OF THE SEVERAL INFIRMITIES WHICH GEORGIA'S LAW IS ALLEGED TO
HAVE, ONLY ONE WAS REACHED BY THE LOWER COURT, NAMELY, THE
CONSTITUTIONALITY OF THE LAW IN LIGHT OF THE REQUIREMENTS OF THE
COMMERCE CLAUSE.  THE COMPLAINT ALSO CHALLENGED THE CONSTITUTIONALITY
OF THE LAW ON THE GROUNDS THAT IT VIOLATED BOTH THE EQUAL PROTECTION
AND THE DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT.  PLAINLY THE
CASE WAS ONE TO BE HEARD BY A THREE-JUDGE COURT.  SEE FLORIDA LIME
GROWERS V. JACOBSEN, 362 U.S. 73. 

FN2  THE MANNER OF SALE IS DESCRIBED IN TOWNSEND V. YEOMANS, 301 U.S.
441, 445; CURRIN V. WALLACE, 306 U.S. 1, 7-8; AMERICAN TOBACCO CO. V.
UNITED STATES, 328 U.S. 781, 800. 

FN3  THE COURT BELOW STATED: 

"THE GEORGIA STATUTE DEFINES TYPE 14 TOBACCO ON THE BASIS OF
GEOGRAPHICAL ORIGIN AND UPON NO OTHER BASIS.  IF IT IS GROWN IN
GEORGIA, IT WOULD BE TYPE 14 UNDER THE GEORGIA LAW AND BE GIVEN A WHITE
TAG; WHILE IF IT CAME FROM THE OTHER SIDE OF THE SAVANNAH RIVER IN
SOUTH CAROLINA IT WOULD NOT BE TYPE 14 AND WOULD BE GIVEN A BLUE TAG
...  . 

"BOTH THE PURPOSE AND EFFECT OF THE GEORGIA ENACTMENT WERE TO MAKE A
DISTINCTION AT THE MARKETS, BY THE COLOR TAGS, BETWEEN TOBACCO GROWN IN
GEORGIA AND THAT GROWN ELSEWHERE.  THE EFFECT WAS TO CREATE A WIDE
DISPARITY OF PRICE BETWEEN THE TWO GROUPS OF TOBACCO, THE CAROLINA
GROWERS RECEIVING A MUCH LOWER AMOUNT.  THIS RESULTED IN LOSSES OF
BUSINESS TO THE PLAINTIFF WAREHOUSEMEN."  189 F. SUPP. 54, 59. 

MR. JUSTICE WHITTAKER CONCURS IN THE RESULT. 

DISSENTING OPINION OF MR. JUSTICE BLACK, JOINED BY MR. JUSTICE
FRANKFURTER AND MR. JUSTICE HARLAN, ANNOUNCED BY MR. JUSTICE
FRANKFURTER. 

ACTING UNDER UNCHALLENGED AUTHORITY GRANTED HIM BY THE FEDERAL
TOBACCO INSPECTION ACT (FN1) TO CLASSIFY TOBACCO INTO "TYPES" AND
"GRADES" AND TO DESIGNATE "AUCTION MARKETS" AT CONVENIENT POINTS IN
"TYPE AREAS," THE SECRETARY OF AGRICULTURE HAS ESTABLISHED A
COMPREHENSIVE TOBACCO CLASSIFICATION SYSTEM MADE UP OF SOME 27
DIFFERENT TYPES OF TOBACCO - BASED UPON CHEMICAL QUALITIES RESULTING
FROM THE GEOGRAPHICAL FACTORS OF SOIL AND CLIMATE (FN2) - WHICH ARE IN
TURN BROKEN DOWN INTO SOME 170 DIFFERENT GRADES - BASED UPON SUCH
VISUAL FACTORS AS GROUP, QUALITY AND COLOR.  (FN3)  THE QUESTION IN
THIS CASE RELATES TO ONE OF THOSE 27 TYPES, TYPE 14 FLUE-CURED TOBACCO,
AND HAS NOTHING WHATEVER TO DO WITH THE SECRETARY'S GRADE
CLASSIFICATION REGULATIONS. 

TYPE 14 FLUE-CURED TOBACCO, AS DEFINED IN THE OFFICIAL DEPARTMENT OF
AGRICULTURE REGULATION, IS: 

"THAT TYPE OF FLUE-CURED TOBACCO COMMONLY KNOWN AS SOUTHERN FLUE
CURED OR NEW BELT OF GEORGIA, FLORIDA, AND ALABAMA, PRODUCED
PRINCIPALLY IN THE SOUTHERN SECTION OF GEORGIA AND TO SOME EXTENT IN
FLORIDA AND ALABAMA."  (FN4) 

WHILE SEC. 8 OF THE FEDERAL ACT REQUIRES TOBACCO SOLD AT DESIGNATED
AUCTION MARKETS TO BEAR A TAG SHOWING THE DEPARTMENT OF AGRICULTURE'S
OFFICIAL GRADE, IT CONTAINS NO SUCH REQUIREMENT FOR A TAG SHOWING ITS
OFFICIAL TYPE.  (FN5)  BECAUSE OF THIS OMISSION AND THE FACT,
ESTABLISHED HERE BY EXPERT TESTIMONY, THAT DURING THE LAST FIVE YEARS
TYPE 14 "TOBACCO HAS HAD THE REPUTATION OF BEING THE BEST TOBACCO
PRODUCED IN THE UNITED STATES," GROWERS AND SPECULATORS FROM AREAS
OUTSIDE GEORGIA, FLORIDA AND ALABAMA HAVE TAKEN ADVANTAGE OF THE
GENERAL SIMILARITY IN APPEARANCE OF ALL TYPES OF FLUE-CURED TOBACCO IN
ORDER TO SELL THEIR TOBACCO ON GEORGIA MARKETS AS TYPE 14.  ACTING ON
COMPLAINTS THAT THIS PRACTICE CONSTITUTED A FRAUD UPON GEORGIA TOBACCO
GROWERS AS WELL AS UPON BUYERS COMING INTO THE STATE, THE GEORGIA
LEGISLATURE PASSED A LAW REQUIRING THAT WAREHOUSEMEN WITHIN THE STATE
PLACE A TAG ON ALL TOBACCO SOLD WITHIN THE STATE SHOWING WHETHER IT IS
TYPE 14 TOBACCO OR NOT.  (FN6)  TO ACCOMPLISH THIS PURPOSE THE GEORGIA
LAW ESTABLISHED THE FOLLOWING DEFINITION: 

"TYPE 14 FLUE-CURED LEAF TOBACCO AS USED HEREIN SHALL MEAN THAT FLUE
CURED LEAF TOBACCO GROWN IN THE TRADITIONAL LOOSE-LEAF AREA WHICH
CONSISTS OF THE STATES OF GEORGIA, FLORIDA, AND ALABAMA."  (FN7) 

DESPITE THE VARIATIONS IN THEIR WORDINGS, IT IS OBVIOUS THAT THERE IS
NO CONFLICT BETWEEN THIS GEORGIA LAW AND THE REGULATION OF THE
DEPARTMENT OF AGRICULTURE AND THAT THE DEFINITIONS OF TYPE 14 TOBACCO
IN THE GEORGIA LAW AND THE FEDERAL REGULATION MEAN PRECISELY THE SAME
THING - NAMELY, THAT TOBACCO GROWN IN GEORGIA, FLORIDA AND ALABAMA, AND
THAT TOBACCO ONLY, CAN BE CLASSIFIED AS TYPE 14.  WHATEVER DOUBT MIGHT
OTHERWISE HAVE EXISTED ON THIS SCORE IS COMPLETELY DISPELLED BY THE
RECORD IN THIS CASE.  FOR THE PARTIES TO THIS LAWSUIT, WHO HAVE LIVED
UNDER AND CAN BE PRESUMED TO BE FAMILIAR WITH THE DEPARTMENT OF
AGRICULTURE'S REGULATION, THEMSELVES STIPULATED THAT THE FEDERAL
GOVERNMENT HAD "DESIGNATED AS TYPE 14 TOBACCO ONLY FLUE-CURED TOBACCO
GROWN IN GEORGIA, FLORIDA, AND ALABAMA."  TWO RESPONSIBLE DEPARTMENT OF
AGRICULTURE OFFICIALS UNEQUIVOCALLY SUPPORTED THE CORRECTNESS OF THIS
STIPULATION - ONE TESTIFYING THAT TYPE 14 WAS A CLASSIFICATION
ACCORDING TO "GEOGRAPHICAL ORIGIN" AND THE OTHER, THE THEN DIRECTOR OF
THE TOBACCO DIVISION OF THE COMMODITY STABILI ATION SERVICE, (FN8)
TESTIFYING THAT ONLY THREE THINGS WENT IN THE DEPARTMENT'S TYPE 14
DEFINITION, "GEOGRAPHY, SOIL AND CLIMATE."  THERE WAS ALSO IN EVIDENCE
THE 1959 OFFICIAL MAP OF THE DEPARTMENT SHOWING, AS HAS EVERY OTHER
DEPARTMENT MAP SINCE PASSAGE OF THE ACT, (FN9) THAT ALL TYPE 14 FLUE
CURED TOBACCO IS GROWN WELL WITHIN THE BORDERS OF GEORGIA, FLORIDA AND
ALABAMA AND THAT THE OTHER "TYPE AREAS" IN WHICH FLUE-CURED TOBACCO IS
GROWN DO NOT EVEN APPROACH THE PLAINLY DEFINED LIMITS OF THE TYPE 14
AREA.  (FN10)  THAT THE DEPARTMENT OF AGRICULTURE DID NOT REGARD THE
GEORGIA LAW ATTACKED HERE AS INCONSISTENT WITH ITS REGULATIONS IS
FURTHER, AND SPECIFICALLY, SHOWN BY THE FACT THAT AFTER PASSAGE OF THE
GEORGIA LAW, THE DEPARTMENT ITSELF ISSUED A REGULATION, 6 CFR, 1961
CUM. SUPP., SEC. 464.1211(B) - WHICH THE RECORD SHOWS WAS DESIGNED TO
PROTECT FLORIDA MARKETS PRECISELY AS THE GEORGIA LAW PROTECTS GEORGIA
MARKETS - APPROVING THE GEORGIA DEFINITION BY ALSO REQUIRING
IDENTIFYING COLORED TAGS FOR "ALL TOBACCO  ...  OFFERED FOR SALE AT
AUCTION WHICH IS DETERMINED TO HAVE BEEN PRODUCED IN GEORGIA, FLORIDA,
OR ALABAMA."  THUS IT IS CLEAR BEYOND DISPUTE, AS THE DEPARTMENT'S MAP
AND REGULATION RECOGNIZED, THAT NEITHER THE GEORGIA NOR THE DEPARTMENT
DEFINITIONS OF TYPE 14 CONFLICT WITH THE REQUIREMENT OF DEPARTMENT
REGULATION SEC. 29.1096 THAT TOBACCO WITH THE "SAME CHARACTERISTICS
...  SHALL BE TREATED AS ONE TYPE, REGARDLESS OF ANY FACTORS OF
HISTORICAL OR GEOGRAPHICAL NATURE WHICH CANNOT BE DETERMINED BY AN
EXAMINATION," BECAUSE THERE ARE GEOGRAPHICAL FACTORS OF SOIL AND
CLIMATE IN GEORGIA, ALABAMA, AND FLORIDA RESULTING IN DISTINCT
"CHARACTERISTICS" WHICH ARE DETERMINABLE BY CHEMICAL EXAMINATION. 

THE COURT IS THEREFORE COMPELLED TO DECIDE THIS CASE, AS TO ME IT
APPARENTLY DOES, ON THE PREMISE THAT THE GEORGIA DEFINITION OF TYPE 14
TOBACCO IS NOT IN CONFLICT WITH, BUT RATHER IS PRECISELY THE SAME AS,
THE FEDERAL DEFINITION.  CONSEQUENTLY, THE COURT MUST ACCEPT AS AN
UNDOUBTED FACT THAT THE FULL EFFECT OF THE GEORGIA LAW IS SIMPLY TO
ASSURE THAT BIDDERS AT GEORGIA AUCTION MARKETS LOCATED IN THE TYPE 14
AREA WILL BE ABLE TO DISTINGUISH BETWEEN OFFICIALLY CLASSIFIED TYPE 14
TOBACCO, GROWN ONLY IN GEORGIA, FLORIDA AND ALABAMA, AND OTHER TYPES OF
TOBACCO GROWN IN OTHER STATES.  SINCE THE CONCEDED BASIC PURPOSE OF THE
FEDERAL ACT ITSELF WAS TO ASSURE THAT TOBACCO GROWERS AND BUYERS WOULD
HAVE AS MUCH INFORMATION AS POSSIBLE ABOUT THE COMMERCIAL QUALITIES OF
TOBACCO SOLD ON AUCTION MARKETS, THE COURT MUST ALSO ADMIT THAT THIS
GEORGIA LAW IS DESIGNED TO AND DOES HELP TO EFFECTUATE THE FEDERAL ACT
AND TO SECURE ALL OF THE BENEFITS OF THAT ACT'S OFFICIAL TOBACCO TYPE
CLASSIFICATIONS.  AT LEAST AS EARLY IN THE HISTORY OF THIS COUNTRY AS
1619, WHEN VIRGINIA PASSED ITS FIRST TOBACCO INSPECTION ACT, THE STATES
HAVE SOUGHT TO PROTECT HONEST SELLERS OF TOBACCO FROM THOSE WHO WERE
WILLING FOR A PROFIT TO DAMAGE THE INTEGRITY OF THE PRODUCT.  (FN11)
YET THE COURT NOW HOLDS THAT CONGRESS, BY PASSING THE FEDERAL TOBACCO
INSPECTION ACT, INTENDED TO COVER THE ENTIRE FIELD OF TOBACCO
REGULATION, EVEN TO THE EXTENT OF COMPELLING STATES TO ABANDON HISTORIC
LAWS THAT ARE NOT ONLY COMPLETELY IN HARMONY WITH FEDERAL TYPE
CLASSIFICATIONS, BUT ARE ACTUALLY NECESSARY TO GIVE THEM FULL EFFECT. 

IN SO HOLDING IT SEEMS TO ME THAT THE COURT DEPARTS DRASTICALLY FROM
ITS LONG-CONTINUED PRACTICE OF NOT STRIKING DOWN STATE LAWS AS
UNCONSTITUTIONAL EXCEPT WHERE SUCH DECISIONS ARE COMPELLED BY
CONSIDERATIONS WHICH ARE MANIFEST AND CLEAR AFTER CAREFUL STUDY AND
ANALYSIS OF THE ISSUES INVOLVED.   HERE THE COURT'S OPINION PRESENTS
NOT SO MUCH AS ONE FACT WHICH INDICATES THAT CONGRESS ACTUALLY INTENDED
BY THE PASSAGE OF THE FEDERAL ACT TO PRECLUDE THE STATES FROM PASSING
LAWS WHICH REQUIRE ONLY THAT WAREHOUSEMEN PLACE A LABEL ON EACH LOT OF
TOBACCO OFFERED FOR SALE TRUTHFULLY SHOWING ITS OFFICIAL FEDERAL TYPE. 
INDEED, THE COURT EVEN CITES TWO PRIOR CASES IN WHICH THIS COURT, IN
DEALING WITH THIS VERY SAME FEDERAL ACT, HAS EXPLICITLY RECOGNIZED THAT
THERE IS NO BASIS WHATEVER IN THE ACT'S LANGUAGE, HISTORY OR PURPOSE TO
JUSTIFY A FINDING OF A CONGRESSIONAL INTENT TO PRE-EMPT MERELY
COMPLEMENTARY STATE LEGISLATION.  IN TOWNSEND V. YEOMANS, (FN12) MR.
CHIEF JUSTICE HUGHES, AFTER A FULL CANVASS OF THE LANGUAGE, HISTORY AND
PURPOSE OF THE FEDERAL ACT AND OF TOBACCO INSPECTION LAWS GENERALLY,
REJECTED FOR THE COURT THE CONTENTION THAT THIS ACT PRECLUDED A GEORGIA
LAW REGULATING THE CHARGES OF WAREHOUSEMEN OPERATING UNDER THE ACT,
POINTING OUT THAT THE FEDERAL LAW "HAD A LIMITED OBJECTIVE," AND GOING
ON TO SAY: 

"INSTEAD OF FRUSTRATING THE OPERATION OF SUCH STATE LAWS, THE
PROVISIONS OF THE ACT EXPRESSLY AFFORDED AND EMPHASIZED THE OPPORTUNITY
FOR COOPERATION WITH THE STATES IN PROTECTING THE FARMER'S INTERESTS. 
IN THIS VIEW WE FIND NO GROUND FOR THE CONTENTION THAT CONGRESS HAS
TAKEN POSSESSION OF THE FIELD OF REGULATION TO THE EXCLUSION OF STATE
LAWS WHICH DO NOT CONFLICT WITH ITS OWN REQUIREMENTS."  (FN13) 

THIS STATEMENT WAS REITERATED AND BUTTRESSED WHEN, TWO YEARS LATER,
THE COURT WAS CALLED UPON TO PASS ON THE CONSTITUTIONALITY OF THE
TOBACCO INSPECTION ACT IN CURRIN V. WALLACE.  (FN14)  MR. CHIEF JUSTICE
HUGHES, AGAIN SPEAKING FOR THE COURT, EXPRESSLY ADHERED TO THE VIEW THE
COURT HAD EARLIER TAKEN OF THE ACT: 

"BUT IN TOWNSEND V. YEOMANS WE FOUND NOTHING IN THE FEDERAL ACT WHICH
UNDERTOOK TO REGULATE THE CHARGES OF WAREHOUSEMEN AND HENCE WE
CONCLUDED THAT CONGRESS HAD RESTRICTED ITS REQUIREMENTS AND LEFT THE
STATE FREE TO DEAL WITH THE MATTERS NOT COVERED BY THE FEDERAL
LEGISLATION AND NOT INCONSISTENT THEREWITH."  (FN15) 

I THINK IT PLAIN THAT THE COURT WAS ENTIRELY CORRECT IN THE TOWNSEND
AND CURRIN CASES.  THERE IS NOT A WORD IN THE TOBACCO INSPECTION ACT
NOR ANYTHING THAT HAS BEEN CITED IN ITS LEGISLATIVE HISTORY THAT
INDICATES A CLEAR AND MANIFEST PURPOSE ON THE PART OF CONGRESS TO
PRECLUDE THE EXERCISE BY GEORGIA OF THE HISTORIC POWER OF STATES TO
PASS LOCAL LEGISLATION TO PROTECT THE INTEGRITY OF ITS TOBACCO ON THE
MARKET AND TO PREVENT THE COMMISSION OF FRAUD UPON BUYERS WHO COME TO
DEAL IN TOBACCO WITHIN ITS BORDERS.  THE PURPOSE OF THE FEDERAL ACT, AS
PLAINLY DISCLOSED BOTH IN ITS LANGUAGE AND LEGISLATIVE HISTORY, WAS TO
PROMOTE THE DISSEMINATION OF INFORMATION ON THE TOBACCO MARKET, NOT TO
RESTRICT THE AVAILABILITY OF SUCH INFORMATION.  (FN16)  THE FAILURE OF
THE FEDERAL ACT ITSELF TO REQUIRE THE OPEN DISCLOSURE OF TOBACCO TYPES
AS WELL AS TOBACCO GRADES CANNOT BY ANY STRETCH OF THE IMAGINATION BE
TAKEN AS EVIDENCE OF A CONGRESSIONAL INTENT THAT TOBACCO TYPES SHOULD
REMAIN A SECRET ON THE MARKET.  FOR THE ACT ITSELF PLAINLY SHOWS WHY
THAT OMISSION WAS MADE.  CONGRESS KNEW THAT THE VARIOUS TYPES OF
TOBACCO WERE GROWN IN GEOGRAPHICALLY SEPARATE "TYPE AREAS" AND FURTHER
KNEW THAT UNDER THE MARKETING PRACTICES THEN BEING USED IN THE TOBACCO
INDUSTRY TOBACCO WAS MARKETED IN THE "TYPE AREA" IN WHICH IT WAS
GROWN.  CONSEQUENTLY, UNDER THE CONDITIONS THEN GENERALLY PREVAILING,
THERE WAS NO NEED TO REQUIRE THE DISCLOSURE OF TOBACCO TYPES FOR THE
SIMPLE REASON THAT NO TWO TYPES OF TOBACCO WERE SOLD ON THE SAME
MARKET.  (FN17) 

THE RECORD IN THIS CASE SHOWS, HOWEVER, THAT MARKETING PRACTICES IN
THE TOBACCO INDUSTRY HAVE CHANGED RADICALLY IN RECENT YEARS.  AN EVER
INCREASING AMOUNT OF TOBACCO IS BEING TAKEN FROM THE TYPE AREA IN WHICH
IT IS GROWN INTO ANOTHER TYPE AREA FOR SALE (FN18) - PARTICULARLY INTO
GEORGIA, WHERE THE HIGHER PRICES WHICH PREVAIL ON THAT MARKET AS A
RESULT OF THE COMMERCIALLY SUPERIOR QUALITIES OF TYPE 14 TOBACCO
CONSTITUTE A POWERFUL LURE TO GROWERS AND TOBACCO SPECULATORS WHO WANT
TO SELL SUPERFICIALLY SIMILAR TOBACCO OF OTHER TYPES.  THIS TREMENDOUS
INFLUX OF UNIDENTIFIED COMMERCIALLY INFERIOR TOBACCO THREATENS
LITERALLY TO DESTROY THE GEORGIA MARKET FOR TYPE 14 TOBACCO AND ROB THE
TOBACCO GROWERS OF THAT STATE OF THE VALUE OF THEIR LABOR.  BY
ATTEMPTING TO ELIMINATE CLAIMED UNFAIRNESS AND OUTRIGHT FRAUD IN THE
SALE OF TOBACCO ON THE GEORGIA FEDERAL MARKETS, THE GEORGIA ACT THUS
SEEKS TO DO NO MORE THAN PREVENT A PARTIAL FRUSTRATION THROUGH CHANGING
COMMERCIAL PRACTICES OF THE VERY OBJECTIVE CONGRESS ITSELF SOUGHT TO
ATTAIN BY THE ENACTMENT OF THE TOBACCO INSPECTION ACT. 

THE WHOLE STRUCTURE OF THE FEDERAL ACT PLAINLY SHOWS, I THINK, THAT,
FAR FROM PRECLUDING THIS SORT OF STATE COOPERATION IN THE EFFECTUATION
OF THE FEDERAL PURPOSE, CONGRESS AFFIRMATIVELY INTENDED AND, AS POINTED
OUT BY MR. CHIEF JUSTICE HUGHES IN THE TOWNSEND AND CURRIN CASES,
ACTUALLY HOPED FOR SUCH COOPERATION.  THE TOBACCO INSPECTION ACT IS NOT
ONE THAT FORCES FEDERAL REGULATION ON UNWILLING LOCAL COMMUNITIES. 
BEFORE THE SECRETARY OF AGRICULTURE CAN DESIGNATE "AUCTION MARKETS"
UPON WHICH COMPLIANCE WITH THE PROVISIONS OF THE ACT IS MANDATORY, SEC.
5 OF THE ACT REQUIRES THAT A REFERENDUM BE CONDUCTED AND THE CONSENT OF
TWO-THIRDS OF THE GROWERS WHO USED THE MARKET IN THE PREVIOUS SEASON BE
OBTAINED.  THAT SECTION ALSO EXPRESSLY DENIES THE SECRETARY POWER TO
"CLOSE ANY MARKET" OR "TO PREVENT TRANSACTIONS IN TABACCO AT MARKETS
NOT DESIGNATED" BY HIM, ALTHOUGH IT DOES GIVE HIM POWER TO PROVIDE, ON
A PURELY VOLUNTARY BASIS, FEDERAL INSPECTION AND GRADING TO THOSE
GROWERS SELLING ON SUCH MARKETS WHO WISH TO AVAIL THEMSELVES OF THOSE
SERVICES.  SECTION 6 OF THE FEDERAL ACT EXPRESSLY RECOGNIZES THE
CONTINUED EXISTENCE OF STATE FUNCTIONS AND POWERS BY PROVIDING THAT THE
SECRETARY OF AGRICULTURE MAY MAKE AGREEMENTS WITH STATE AGENCIES
COVERING EMPLOYMENT OF THE INSPECTORS, SAMPLERS AND WEIGHERS WHO
PERFORM THE TASKS OF INSPECTING, GRADING AND TYPING TOBACCO, THUS
MAKING IT PLAIN THAT EVEN AS TO THESE MOST CENTRAL FEATURES OF THE
FEDERAL ACT CONGRESS INTENDED NO SWEEPING EXCLUSION OF THE STATES. 

INSOFAR AS THE COURT EVEN BOTHERS HERE TO TAKE A FRESH LOOK AT THE
SPECIFIC LANGUAGE AND LEGISLATIVE HISTORY OF THE FEDERAL ACT, IT DOES
SO, NOT FOR THE PURPOSE OF RE-EVALUATING THE CORRECTNESS OF THE
UNDERSTANDING OF THE ACT SET FORTH IN THE TOWNSEND AND CURRIN CASES,
BUT SOLELY FOR THE PURPOSE OF SHOWING THAT THE FEDERAL ACT WAS DESIGNED
TO SET UP "UNIFORM STANDARDS OF CLASSIFICATION AND INSPECTION" FOR
TOBACCO TO BE SOLD AT FEDERALLY DESIGNATED WAREHOUSES - A FACT WHICH I
CERTAINLY DO NOT CONTROVERT AND WHICH, SO FAR AS I KNOW, NONE OF THE
PARTIES TO THIS LAWSUIT HAS CONTROVERTED.  THE COURT MAKES NO ATTEMPT
TO RELATE THIS FACT TO THE ISSUE IN THIS CASE AND SHOW JUST HOW THIS
CONGRESSIONAL PURPOSE SUPPORTS AN INFERENCE THAT CONGRESS INTENDED TO
PRECLUDE THE STATES FROM REQUIRING THAT THE "UNIFORM STANDARDS OF
CLASSIFICATION" SO ESTABLISHED AND APPLIED BY OFFICIAL FEDERAL
INSPECTION BE DISCLOSED ON EACH LOT OF TOBACCO SOLD.  INSTEAD, THE
COURT PROCEEDS FROM THE BARE FACT OF CONGRESSIONAL LEGISLATION TO THE
CONCLUSION OF FEDERAL PRE-EMPTION BY APPLICATION OF A MECHANISTIC
FORMULA WHICH OPERATES INDEPENDENTLY OF CONGRESSIONAL INTENT.  THAT
FORMULA, AS STATED BY THE COURT, IS THAT "COMPLEMENTARY STATE
REGULATION IS AS FATAL AS STATE REGULATIONS WHICH CONFLICT WITH THE
FEDERAL SCHEME."  I KNOW OF NO CASE IN WHICH THIS FORMULA HAS
PREVIOUSLY BEEN APPLIED BY THIS COURT.  CERTAINLY, THE THREE CASES
WHICH IT CITES DO NOT SUPPORT ITS ACTION HERE. 

MISSOURI PACIFIC R. CO. V. PORTER, (FN19) THE FIRST CASE CITED BY THE
COURT, DID MAKE THE STATEMENT THAT STATE LAWS "CANNOT BE APPLIED IN
COINCIDENCE WITH, AS COMPLEMENTARY TO OR AS IN OPPOSITION TO, FEDERAL
ENACTMENTS WHICH DISCLOSE THE INTENTION OF CONGRESS TO ENTER A FIELD OF
REGULATION THAT IS WITHIN ITS JURISDICTION."  BUT THIS STATEMENT WAS
MADE ONLY AFTER THE COURT HAD DISCUSSED THE CONGRESSIONAL ACT INVOLVED
THERE IN GREAT DETAIL AND FOUND CONGRESS TO HAVE CONCLUDED THAT "NO
OTHER REGULATION IS NECESSARY."  (FN20)  THAT THE COURT IN MISSOURI
PACIFIC DID NOT INTEND TO GO OUTSIDE OF THE FACTS THERE BEFORE IT AND
LAY DOWN A RULE OF AUTOMATIC PRE-EMPTION BY "COINCIDENCE" IS PLAINLY
SHOWN BY THE AUTHORITIES RELIED UPON TO SUPPORT ITS PASSING REFERENCE. 
THE FIRST CASE CITED, NAPIER V. ATLANTIC COAST LINE R. CO., (FN21) IS
TYPICAL.  IN NAPIER, MR. JUSTICE BRANDEIS, IN HIS USUAL CAREFUL WAY,
DECLARED THAT IN CONSIDERING THE QUESTION OF PRE-EMPTION "THE INTENTION
OF CONGRESS TO EXCLUDE STATES FROM EXERTING THEIR POLICE POWER MUST BE
CLEARLY MANIFESTED ...  ."  (FN22)  THE MISSOURI PACIFIC CASE CAN
THEREFORE SUPPORT PRE-EMPTION ONLY UPON THE BASIS OF CONGRESSIONAL
INTENT AND DOES NOT LEND THE SLIGHTEST SUPPORT TO THE MECHANISTIC PRE
EMPTION RULE WHICH THE COURT APPLIES HERE. 

THE SECOND CASE RELIED ON BY THE COURT FOR ITS MECHANICAL FORMULA IS
RICE V. SANTA FE ELEVATOR CORP.  (FN23)  THE SANTA FE ELEVATOR CASE,
HOWEVER, DOES NOT SUPPORT THE COURT'S MECHANICAL FORMULA ANY MORE THAN
THE MISSOURI PACIFIC CASE.  ON THE VERY PAGE CITED BY THE COURT, IT WAS
SAID: 

"CONGRESS LEGISLATED HERE IN A FIELD WHICH THE STATES HAVE
TRADITIONALLY OCCUPIED  ...  .  SO WE START WITH THE ASSUMPTION THAT
THE HISTORIC POLICE POWERS OF THE STATES WERE NOT TO BE SUPERSEDED BY
THE FEDERAL ACT UNLESS THAT WAS THE CLEAR AND MANIFEST PURPOSE OF
CONGRESS." 

MORE IMPORTANTLY, THE COURT DID NOT IN SANTA FE ELEVATOR TREAT THE
QUESTION OF PRE-EMPTION AS ONE WHICH COULD BE SETTLED BY APPLICATION OF
THE RIGID FORMULA USED HERE TO STRIKE DOWN THIS GEORGIA LAW.  QUITE THE
CONTRARY, RECOGNIZING THAT PRE-EMPTION "IS OFTEN A PERPLEXING QUESTION"
THE COURT ANALYZED THE ISSUE BEFORE IT AT GREAT LENGTH AND CONCLUDED
THAT CONGRESS INTENDED TO PRE-EMPT THE SUPPLEMENTARY STATE REGULATION
THERE INVOLVED ONLY AFTER DEMONSTRATING THAT THE LANGUAGE OF THE
WAREHOUSE ACT AS AMENDED, "THE SPECIAL AND PECULIAR HISTORY" OF THE
AMENDMENT TO THE ACT, AND THE UNDERLYING PURPOSE OF THE ACT ALL
MANIFESTED A CLEAR CONGRESSIONAL PURPOSE TO PRE-EMPT ALL STATE ACTION
IN THE FIELD.  FAR FROM SUPPORTING THE MECHANICAL FORMULA USED BY THE
COURT HERE TO DECLARE GEORGIA'S LAW UNCONSTITUTIONAL, SANTA FE ELEVATOR
STANDS AS A CLEAR REFUTATION OF THAT FORMULA, AND CONTAINS A VERY CLEAR
STATEMENT OF THE PROPER RULE WHICH BEFORE TODAY HAS GOVERNED THIS
COURT'S HOLDINGS ON PRE-EMPTION - THE RULE THAT PRE-EMPTION OF THE
HISTORIC POLICE POWERS OF THE STATES CAN BE FOUND ONLY WHERE "THAT WAS
THE CLEAR AND MANIFEST PURPOSE OF CONGRESS."    THE FINAL CASE RELIED
UPON BY THE COURT IS HOOD & SONS V. DU MOND.  (FN24)  BUT THIS WAS NOT
A PRE-EMPTION CASE AT ALL.  THERE, A MAJORITY OF THE COURT DECIDED THAT
A NEW YORK LAW BURDENED COMMERCE IN VIOLATION OF THE COMMERCE CLAUSE. 
THE COURT'S OPINION DID MAKE A CASUAL REFERENCE TO "DECISIONS THAT
COINCIDENCE IS AS FATAL AS CONFLICT WHEN CONGRESS ACTS," BUT IT RELIED
IN NO WAY UPON THIS STATEMENT FOR ITS HOLDING AND THE ONLY CASE CITED
TO SUPPORT THAT PROPOSITION WAS ONE IN WHICH THE COURT HELD A STATE PRE
EMPTED BY A FEDERAL STATUTE ONLY AFTER CAREFULLY SHOWING THAT CONGRESS
HAD INTENDED TO PRECLUDE STATE LEGISLATION OF THE KIND THERE INVOLVED. 
(FN25) 

JUST A FEW WEEKS AFTER THE DECISION IN HOOD & SONS V. DU MOND,
HOWEVER, THIS COURT DID, IN CALIFORNIA V. ZOOK, (FN26) SPECIFICALLY
DEAL WITH THE ARGUMENT "THAT WHEN CONGRESS HAS MADE SPECIFIED ACTIVITY
UNLAWFUL, 'COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION,' AND STATE LAWS
'AIDING' ENFORCEMENT ARE INVALID."  THE COURT THERE EMPHATICALLY
REJECTED THE IDEA THAT IDENTITY OF PURPOSE BETWEEN A FEDERAL AND A
STATE STATUTE MEANT "THE AUTOMATIC INVALIDITY OF STATE MEASURES."  IT
TREATED COINCIDENCE AS ONLY ONE FACTOR IN THE COMPLICATED PATTERN OF
FACTS RELEVANT TO THE QUESTION OF PRE-EMPTION, POINTING OUT, IN THE
WORDS OF MR. JUSTICE HOLMES, THAT THIS IS A QUESTION WHICH "MUST BE
ANSWERED BY A JUDGMENT UPON THE PARTICULAR CASE."  (FN27)  A DISSENT IN
THE ZOOK CASE, WRITTEN BY MR. JUSTICE BURTON AND CONCURRED IN BY MR.
JUSTICE DOUGLAS AND MR. JUSTICE JACKSON, TOOK THE POSITION, APPARENTLY
TAKEN BY THE COURT HERE, THAT, WHEN CONGRESS PASSES A LAW IN THE
INTERSTATE COMMERCE FIELD AND THE STATE PASSES ONE CONSISTENT WITH IT,
"COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION, AND A STATE LAW IS NOT TO
BE DECLARED A HELP BECAUSE IT ATTEMPTS TO GO FARTHER THAN CONGRESS HAS
SEEN FIT TO GO."  (FN28)  THAT WHEN CONGRESS PASSES A LAW REGULATING
INTERSTATE COMMERCE, ALL STATE LAWS IN ANY WAY TOUCHING ON THE SUBJECT
ARE OBLITERATED WAS NOTHING BUT A DISSENTING VIEW BEFORE THIS CASE WAS
DECIDED TODAY. 

THE CORRECT TEST IN DETERMINING WHETHER A FEDERAL ACT RESULTS IN PRE
EMPTION IS THAT STATED IN RICE V. SANTA FE ELEVATOR, WHICH REQUIRES
THAT "THE HISTORIC POLICE POWERS OF THE STATES  ...  NOT ...  BE
SUPERSEDED BY THE FEDERAL ACT UNLESS THAT WAS THE CLEAR AND MANIFEST
PURPOSE OF CONGRESS."  (FN29)  MEASURED BY THAT TEST, THE GEORGIA LAW
HERE CANNOT BE INVALIDATED. 

THERE CAN BE NO DOUBT THAT THE POWER UPON WHICH THIS GEORGIA LAW WAS
BASED IS ONE OF THE POWERS HISTORICALLY EXERCISED BY THE STATES.  AS
POINTED OUT BEFORE, THE POWER TO REGULATE TOBACCO IN ORDER TO PROTECT
THE INTEGRITY OF THE PRODUCT WAS EXERCISED BY VIRGINIA AS EARLY AS
1619.  INDEED, IN THE MIDST OF A MARKETING CRISIS IN 1666, LORD
BALTIMORE PROPOSED A LAW CLOSELY SIMILAR TO THE GEORGIA LAW HERE WHICH
WOULD HAVE REQUIRED THAT ALL TOBACCO FROM HIS COLONY BE LABELED
"MARYLAND" IN ORDER TO DISTINGUISH IT FROM VIRGINIA TOBACCO, THE ONLY
OTHER TYPE OF TOBACCO THEN BEING GROWN IN THE COLONIES.  (FN30)  EVEN
THIS COURT, IN TIMES PAST, HAS RECOGNIZED THE HISTORIC POWERS OF THE
STATES IN THIS AREA.  IN TURNER V. MARYLAND, (FN31) THE COURT REJECTED
THE CONTENTION THAT THE STATES ARE BARRED BY THE COMMERCE CLAUSE FROM
REQUIRING THAT TOBACCO GROWN WITHIN THEIR BORDERS BE LABELED TO
INDICATE ITS ORIGIN, SAYING: 

"THE LEGISLATURE OF THE STATE OF MARYLAND, FROM THE EARLIEST HISTORY
OF THE COLONY AND SINCE THE FORMATION OF THE STATE GOVERNMENT, HAS MADE
THE INSPECTION OF TOBACCO RAISED IN THAT STATE COMPULSORY.  THAT
INSPECTION HAS INCLUDED MANY FEATURES, AND HAS EXTENDED TO THE FORM,
SIZE, AND WEIGHT OF THE PACKAGES CONTAINING TOBACCO, AS WELL AS TO THE
QUALITY OF THE ARTICLE.  FIXING THE IDENTITY AND WEIGHT OF TOBACCO
ALLEGED TO HAVE BEEN GROWN IN THE STATE, AND THUS PRESERVING THE
REPUTATION OF THE ARTICLE IN MARKETS OUTSIDE OF THE STATE, IS A
LEGITIMATE PART OF INSPECTION LAWS, AND THE MEANS PRESCRIBED THEREFOR
IN THE STATUTES IN QUESTION NATURALLY CONDUCE TO THAT END."  I DO NOT
QUESTION THE DOCTRINE THAT A PURPOSE OF CONGRESS TO PRECLUDE ALL STATE
LEGISLATION CAN BE IMPLIED IF THE HISTORY, PURPOSE, LANGUAGE, AND
COMPREHENSIVENESS OF AN ACT MAKES SUCH A CONGRESSIONAL PURPOSE CLEAR
AND MANIFEST.  BUT I DO NOT THINK THAT SUCH A PURPOSE CAN PROPERLY BE
FOUND THROUGH USE OF SO MECHANICALLY COMPELLING A FORMULA AS THE COURT
USES HERE - PARTICULARLY WHEN THE RESULT IS TO UNDERCUT A STATE POLICY
OF PROTECTING TOBACCO GROWERS AND PURCHASERS WHICH HAS THE EXPERIENCE
IN THIS COUNTRY OF ALMOST THREE AND A HALF CENTURIES BEHIND IT. 

FN1  49 STAT. 731, 7 U.S.C. SECS. 511-511Q. 

FN2  SEE 7 CFR, 1961 CUM. SUPP., SEC. 29.1096.  UNDER THE DEPARTMENT
OF AGRICULTURE'S CLASSIFICATION SYSTEM, "TYPE" IS A SUBDIVISION OF
"CLASS," WHICH IS LARGELY DETERMINED BY THE METHOD USED TO CURE THE
TOBACCO.  SEE 7 CFR, 1961 CUM. SUPP., SEC. 29.1040. 

FN3  7 CFR, 1961 CUM. SUPP., SEC. 29.1053. 

FN4  7 CFR, 1961 CUM. SUPP., SEC. 29.1100. 

FN5  WHILE THE TWO DEPARTMENT OF AGRICULTURE REGULATIONS CITED BY THE
COURT, 7 CFR SEC. 29.80 AND 7 CFR, 1961 CUM. SUPP., SEC. 29.1144, COULD
ARGUABLY BE INTERPRETED TO IMPOSE A FEDERAL REQUIREMENT THAT TYPE AS
WELL AS GRADE BE SHOWN ON EACH LOT OF TOBACCO SOLD, THE RECORD IN THIS
CASE PLAINLY INDICATES THAT THIS IS NOT THE DEPARTMENT'S INTERPRETATION
OF ITS OWN REGULATIONS.  IN THE FIRST PLACE, EVERY WITNESS IN THIS CASE
WHO WAS CALLED UPON TO DESCRIBE THE SITUATION EXISTING PRIOR TO 1960
STATED UNEQUIVOCALLY THAT THE TOBACCO TYPE DID NOT APPEAR ON THE
GOVERNMENT LABEL ATTACHED TO THE TOBACCO AT THE TIME OF SALE.  AND THE
DEPARTMENT'S OWN OFFICIAL SAID THAT THIS WAS NOT PRESENTLY REQUIRED. 

FN6  THE GEORGIA TOBACCO IDENTIFICATION ACT, GA. LAWS, 1960, NO. 557,
P. 214. 

FN7  SEC. 1. 

FN8  THE COMMODITY STABILIZATION SERVICE AND THE AGRICULTURAL
MARKETING SERVICE ARE THE TWO BRANCHES OF THE DEPARTMENT OF AGRICULTURE
MOST DIRECTLY INVOLVED IN THE MARKETING OF TOBACCO. 

FN9  IN ADDITION THE DEFINITION OF TYPE 14 IS EXACTLY THE SAME NOW AS
IT WAS UNDER THE FIRST TOBACCO INSPECTION ACT REGULATIONS.  SEE SEC.
29.156(VV) OF THE RULES AND REGULATIONS OF THE SECRETARY OF
AGRICULTURE, AUG. 7, 1936. 

FN10 IT SEEMS CLEAR FROM THIS THAT THE SOLICITUDE OF THE COURT BELOW
FOR TYPE 14 GROWERS IN SOUTH CAROLINA, AS SHOWN IN NOTE 3 OF THE
COURT'S OPINION, IS ENTIRELY MISPLACED.  THE DEPARTMENT'S OFFICIAL MAP,
REFERRED TO ABOVE, SHOWS PLAINLY THAT ALL SOUTH CAROLINA FLUE-CURED
TOBACCO IS TYPE 13. 

FN11  JOURNAL OF THE HOUSE OF BURGESSES (MCILWAINE ED.), LAWS, 1619,
P. 11. 

FN12  301 U.S. 441. 

FN13  ID., AT 454. 

FN14  306 U.S. 1. 

FN15  ID., AT 13. 

FN16  SECTION 9 OF THE ACT, 7 U.S.C. SEC. 511H, PROVIDES:  "THE
SECRETARY IS AUTHORIZED TO COLLECT, PUBLISH, AND DISTRIBUTE, BY
TELEGRAPH, MAIL, OR OTHERWISE WITHOUT COST TO THE GROWER, TIMELY
INFORMATION ON THE MARKET SUPPLY AND DEMAND, LOCATION, DISPOSITION,
QUALITY, CONDITION, AND MARKET PRICES FOR TOBACCO."  THAT THIS SECTION
CONSTITUTED AN IMPORTANT PART OF THE ACT IS SHOWN BY THE STATEMENT OF
ITS SPONSOR, REPRESENTATIVE FLANNAGAN, IN INTRODUCING HIS BILL ON THE
FLOOR OF THE HOUSE OF REPRESENTATIVES:  "SIMPLY STATED THE BILL HAS TWO
OBJECTS: FIRST, THE GRADING OF THE GROWERS' TOBACCO BEFORE SALE BY A
COMPETENT GRADER IN ORDER TO DETERMINE WHAT GRADES THE GROWERS HAVE TO
OFFER FOR SALE, AND SECOND, FURNISHING THE GROWERS WITH A DAILY
MARKETING NEWS SERVICE SO THEY WILL KNOW WHAT THE DIFFERENT GRADES OF
TOBACCO ARE BRINGING ON THE OTHER TOBACCO MARKETS AND THUS PUT THEM IN
POSITION TO INTELLIGENTLY ACCEPT OR REJECT A SALE.  SURELY THE GROWERS
ARE ENTITLED TO KNOW WHAT THEY ARE OFFERING FOR SALE - THE DIFFERENT
GRADES OF TOBACCO THEY HAVE TO OFFER - AND THE PRICES THAT THE
DIFFERENT GRADES ARE BRINGING FROM DAY TO DAY UPON THE DIFFERENT
TOBACCO MARKETS.  DENY THEM THESE RIGHTS AND YOU DENY THEM THE
OPPORTUNITY TO MAKE A FAIR AND HONEST SALE."  79 CONG. REC.  11802. 

FN17  SINCE THE EARLIEST DAYS OF THE TOBACCO INDUSTRY IN THIS
COUNTRY, THE MARKETING OF THE PRODUCT HAS BEEN ALMOST EXCLUSIVELY ON A
PURELY LOCAL BASIS.  SEE WYCKOFF, TOBACCO REGULATION IN COLONIAL
MARYLAND, P. 62.  THAT SITUATION PERSISTED SUBSTANTIALLY AT LEAST UP TO
THE YEAR 1950.  SEE DEPARTMENT OF AGRICULTURE MARKETING RESEARCH REPORT
NO. 101, THE AUCTION MARKETING OF FLUE-CURED TOBACCO, P. 8. 

FN18  THE RECORD SHOWS THAT THIS PRACTICE, WHICH SEEMS TO HAVE BEGUN
AROUND 1955, HAS BEEN GROWING EACH YEAR SINCE.  THUS, IN 1959, MORE
THAN 22,000,000 POUNDS OF NON-TYPE 14 TOBACCO, REPRESENTING SOME 17% OF
ALL THE TOBACCO SOLD IN GEORGIA THAT YEAR, WAS BROUGHT INTO THE STATE
FOR SALE TO BUYERS ON THE IMPLICIT ASSUMPTION THAT IT WAS GEORGIA
TOBACCO. 

FN19  273 U.S. 341. 

FN20  ID., AT 346. 

FN21  272 U.S. 605. 

FN22  ID., AT 611. 

FN23  331 U.S. 218, 230. 

FN24  336 U.S. 525, 543. 

FN25  BETHLEHEM STEEL CO. V. NEW YORK STATE LABOR RELATIONS BOARD,
330 U.S. 767. 

FN26  336 U.S. 725, 729. 

FN27  ID., AT 731.  THE QUOTATION RELIED UPON FROM MR. JUSTICE HOLMES
IS FROM HIS OPINION FOR THE COURT IN PENNSYLVANIA R. CO. V. PUBLIC
SERVICE COMM'N, 250 U.S. 566, 569.  THIS STATEMENT BY MR. JUSTICE
HOLMES IS ESPECIALLY SIGNIFICANT IN VIEW OF THE FACT THAT THE PRIMARY
AUTHORITY OFTEN RELIED UPON FOR A MECHANISTIC RULE OF PRE-EMPTION IS AN
EARLIER STATEMENT OF HIS IN CHARLESTON & WESTERN CAROLINA R. CO. V.
VARNVILLE FURNITURE CO., 237 U.S. 597, 604.  THERE, AFTER HOLDING THE
STATE STATUTE INVOLVED UNCONSTITUTIONAL AS A BURDEN ON INTERSTATE
COMMERCE, HE SAID:  "WHEN CONGRESS HAS TAKEN THE PARTICULAR SUBJECT
MATTER IN HAND COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION, AND A STATE
LAW IS NOT TO BE DECLARED A HELP BECAUSE IT ATTEMPTS TO GO FARTHER THAN
CONGRESS HAS SEEN FIT TO GO."  IN VIEW OF HIS LATER HOLDING, IT SEEMS
CLEAR THAT THE OFT-REPEATED REMARK OF MR. JUSTICE HOLMES WAS INTENDED
TO BE NOTHING MORE THAN A JUDGMENT OF THE INTENT OF CONGRESS "UPON THE
PARTICULAR CASE."  SEE ALSO BETHLEHEM STEEL CO. V. NEW YORK STATE LABOR
RELATIONS BOARD, 330 U.S. 767, 783 (SEPARATE OPINION OF MR. JUSTICE
FRANKFURTER). 

FN28  336 U.S., AT 752.  SEE N. 27, SUPRA. 

FN29 NAPIER V. ATLANTIC COAST LINE R. CO., 272 U.S. 605, 611;
MISSOURI PACIFIC R. CO. V. PORTER, 273 U.S. 341, 346; KELLY V.
WASHINGTON, 302 U.S. 1; CALIFORNIA V. ZOOK, 336 U.S. 725; HURON
PORTLAND CEMENT CO. V. CITY OF DETROIT, 362 U.S. 440, 442-443.  ALL
THESE CASES AND MANY OTHERS THAT COULD BE CITED PLAINLY SHOW THAT THIS
COURT HAS CONSISTENTLY REJECTED THE IDEA THAT EVERY TIME CONGRESS
PASSES A LAW ALL STATE LAWS TOUCHING ON THE SAME SUBJECT ARE
AUTOMATICALLY DESTROYED.  SEE ALSO SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236, AND THE CONCURRING OPINION OF MR. JUSTICE HARLAN,
JOINED BY MR. JUSTICE CLARK, MR. JUSTICE WHITTAKER AND MR. JUSTICE
STEWART, AND CASES CITED THEREIN. 

FN30  WYCKOFF, TOBACCO REGULATION IN COLONIAL MARYLAND, P. 76. 
CONTEMPORARY VIRGINIA LEGISLATION ALSO SOUGHT TO PROTECT THE REPUTATION
OF VIRGINIA TOBACCO IN MUCH THE SAME MANNER.  2 HENING, LAWS OF
VIRGINIA, ACT VIII, 1679; 3 HENING, LAWS OF VIRGINIA, C. V, 1705; 4
HENING, LAWS OF VIRGINIA, C. VI, 1726. 

FN31  107 U.S. 38, 49. 
..END :






NATIONAL LABOR RELATIONS BOARD V. OCHOA FERTILIZER 368 U.S. 318 


NO. 37.  ARGUED NOVEMBER 16, 1961.  - DECIDED DECEMBER 18, 1961.  - 283
F.2D 26, REVERSED. 


AN EMPLOYER AND TWO LABOR ORGANIZATIONS WAIVED THE PROCEDURES FOR
ADJUDGMENT OF THE ALLEGATIONS OF AN UNFAIR LABOR PRACTICE COMPLAINT
ISSUED AGAINST THEM UNDER THE NATIONAL LABOR RELATIONS ACT; AGREED UPON
THE FORM OF A CEASE-AND-DESIST ORDER; CONSENTED THAT IT BE ENTERED BY
THE BOARD AGAINST THEM; AND WAIVED ALL DEFENSES TO THE ENTRY OF A
DECREE ENFORCING SUCH ORDER.  UPON BEING PETITIONED FOR ENFORCEMENT OF
THE ORDER UNDER SEC. 10(E) OF THE ACT, THE COURT OF APPEALS, SUA
SPONTE, MODIFIED THE ORDER BY STRIKING OUT REFERENCES TO OTHER
EMPLOYERS AND OTHER LABOR ORGANIZATIONS AND DECREED ENFORCEMENT OF THE
ORDER AS SO MODIFIED.  HELD:  THE COURT OF APPEALS SHOULD HAVE DECREED
ENFORCEMENT OF THE BOARD'S ORDER WITHOUT MODIFICATION.  PP. 318-323. 

NATIONAL LABOR RELATIONS BOARD V. OCHOA FERTILIZER CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS, AN EMPLOYER AND TWO LABOR ORGANIZATIONS, WAIVED THE
PROCEDURES FOR ADJUDGMENT OF THE ALLEGATIONS OF AN UNFAIR LABOR
PRACTICE COMPLAINT ISSUED AGAINST THEM UNDER THE NATIONAL LABOR
RELATIONS ACT, AND AGREED UPON THE FORM OF A CEASE-AND-DESIST ORDER TO
BE ENTERED BY THE NATIONAL LABOR RELATIONS BOARD AGAINST THEM.  (FN1)
THE COMPLAINT ALLEGED THAT THE EMPLOYER VIOLATED SEC. 8(A)(1), (2) AND
(3), AND THE LABOR ORGANIZATIONS SEC. 8(B)(1)(A) AND (2), OF THE ACT,
AS AMENDED, BY EXECUTING AND MAINTAINING A COLLECTIVE BARGAINING
AGREEMENT WHICH CONDITIONED EMPLOYMENT UPON UNION MEMBERSHIP, VESTED
THE RESPONDENT UNIONS WITH EXCLUSIVE CONTROL OVER HIRING, AND PROVIDED
FOR THE CHECKOFF OF UNION DUES AND FEES.  THE PROHIBITIONS OF THE
CONSENT ORDER WERE NOT LIMITED TO THE RELATIONSHIP BETWEEN THE EMPLOYER
AND THE TWO LABOR ORGANIZATIONS.  THE RESPONDENT EMPLOYER WAS DIRECTED
TO REFRAIN FROM PERFORMING, MAINTAINING OR GIVING EFFECT TO SUCH AN
AGREEMENT WITH THE RESPONDENT UNIONS, "OR ANY OTHER LABOR
ORGANIZATION," AND FROM OTHERWISE UNLAWFULLY ENCOURAGING MEMBERSHIP IN
THE RESPONDENT UNIONS, "OR ANY OTHER LABOR ORGANIZATION," BY
DISCRIMINATION AS TO HIRE, TENURE, OR TERMS OR CONDITIONS OF
EMPLOYMENT; AND THE RESPONDENT UNIONS WERE DIRECTED TO REFRAIN FROM
PERFORMING, MAINTAINING, OR GIVING EFFECT TO SUCH AN AGREEMENT WITH THE
RESPONDENT EMPLOYER, "OR ANY OTHER EMPLOYER, OVER WHICH THE BOARD WILL
ASSERT JURISDICTION," AND FROM OTHERWISE CAUSING OR ATTEMPTING TO CAUSE
THE RESPONDENT EMPLOYER, "OR ANY OTHER EMPLOYER OVER WHICH THE BOARD
WILL ASSERT JURISDICTION" TO DISCHARGE, REFUSE TO HIRE, OR OTHERWISE
DISCRIMINATE AGAINST ANY EMPLOYEE IN VIOLATION OF SEC. 8(A)(3) OF THE
ACT.  (FN2) 

THE RESPONDENTS ALSO AGREED THAT "ANY UNITED STATES COURT OF APPEALS
FOR ANY APPROPRIATE CIRCUIT MAY ON APPLICATION BY THE BOARD, ENTER A
DECREE ENFORCING THE ORDER OF THE BOARD  ...  ," AND THAT "RESPONDENTS
WAIVE ALL DEFENSES TO THE ENTRY OF THE DECREE  ...  ."  R. 29.  THE
BOARD PETITIONED THE COURT OF APPEALS FOR THE FIRST CIRCUIT FOR
ENFORCEMENT OF THE ORDER PURSUANT TO SEC. 10(E) OF THE ACT.  (FN3)  THE
ENFORCEMENT PETITION SUBMITTED THE ORDER IN THE FORM AGREED UPON AND
RECITED THE TERMS OF THE SETTLEMENT STIPULATION. 

THE COURT OF APPEALS, SUA SPONTE, (FN4) AND INITIALLY WITHOUT FILING
AN OPINION GIVING REASONS SUPPORTING ITS ACTION, ENTERED A DECREE WHICH
EXCISED THE PHRASES "OR ANY OTHER LABOR ORGANIZATION" AND "OR ANY OTHER
EMPLOYER OVER WHICH THE BOARD WILL ASSERT JURISDICTION" WHEREVER THEY
APPEARED IN THE CONSENT ORDER AND THE COMPLIANCE NOTICES, AND ENFORCED
THE ORDER AS SO MODIFIED.  SUBSEQUENTLY, ON THE BOARD'S SECOND MOTION
FOR RECONSIDERATION, THE COURT RECONSIDERED ITS ACTION IN LIGHT OF THE
OPINION OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN LABOR BOARD
V. COMBINED CENTURY THEATRES, INC., 46 LRR MAN.  2858.  THAT CASE HELD
THAT IN THE FACE OF A LIKE STIPULATION "AND IN THE ABSENCE OF ANY
EXCEPTION TO THE ORDER TAKEN BEFORE THE BOARD OR THE SHOWING OF ANY
EXTRAORDINARY CIRCUMSTANCES, THE COURT WILL NOT CONSIDER RESPONDENTS'
OBJECTIONS."  THE MOTION FOR REHEARING WAS DENIED IN AN OPINION
COVERING THE PRESENT CASE AND SIX OTHERS IN WHICH THE COURT OF APPEALS
HAD SIMILARLY MODIFIED ORDERS ENTERED BY THE BOARD.  283 F.2D 26. 
(FN5)  BECAUSE WE BELIEVED THE CASE PRESENTED AN IMPORTANT QUESTION OF
AUTHORITY OF THE COURT OF APPEALS IN THE PREMISES WE GRANTED
CERTIORARI.  365 U.S. 833. 

THE AUTHORITY OF THE COURT OF APPEALS TO MODIFY BOARD ORDERS WHEN THE
BOARD PETITIONS FOR THEIR ENFORCEMENT DERIVES FROM THE PROVISION OF
SEC. 10(E) AUTHORIZING THE COURT "TO MAKE AND ENTER A DECREE ENFORCING,
MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING ASIDE IN WHOLE OR
IN PART THE ORDER OF THE BOARD."  HOWEVER, THE IMMEDIATELY FOLLOWING
SENTENCE OF SEC. 10(E) PROVIDES THAT "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."  AT
LEAST WHEN THE BOARD HAS NOT "PATENTLY TRAVELED OUTSIDE THE ORBIT OF
ITS AUTHORITY," LABOR BOARD V. CHENEY CALIFORNIA LUMBER CO., 327 U.S.
385, 388, (FN6) OUR CASES HAVE UNIFORMLY HELD THAT IN THE ABSENCE OF A
SHOWING WITHIN THE STATUTORY EXCEPTION OF "EXTRAORDINARY CIRCUMSTANCES"
THE FAILURE OR NEGLECT OF THE RESPONDENT TO URGE AN OBJECTION IN THE
BOARD'S PROCEEDINGS FORECLOSES JUDICIAL CONSIDERATION OF THE OBJECTION
IN ENFORCEMENT PROCEEDINGS.  MARSHALL FIELD & CO. V. LABOR BOARD, 318
U.S. 253; MAY DEPARTMENT STORES CO. V. LABOR BOARD, 326 U.S. 376, 386,
N. 5; LABOR BOARD V. CHENEY CALIFORNIA LUMBER CO., SUPRA; LABOR BOARD
V. SEVEN-UP BOTTLING CO., 344 U.S. 344, 350; LABOR BOARD V. DISTRICT
50, 355 U.S. 453, 463-464.  THESE CASES INVOLVED CONTESTED PROCEEDINGS
BEFORE THE BOARD, AS DID LABOR BOARD V. EXPRESS PUBLISHING CO., 312
U.S. 426, AND COMMUNICATIONS WORKERS V. LABOR BOARD, 362 U.S. 479, UPON
WHICH THE COURT OF APPEALS RELIED.  THE LIMITATION OF SEC. 10(E)
APPLIES A FORTIORI TO THE CONSIDERATION OF AN OBJECTION TO ENFORCEMENT
MADE BY A RESPONDENT WHO HAS CONSENTED TO THE TERMS OF THE ORDER.  SEE
LABOR BOARD V. COMBINED CENTURY THEATRES, INC., SUPRA. 

WE UNDERSTAND THE OPINION OF THE COURT OF APPEALS TO HOLD THAT THE
LIMITATION OF SEC. 10(E) IS INAPPLICABLE WHEN THE RECORD CONTAINS NO
FINDINGS OR FACTS SUPPORTING THE ORDER - THAT "AFFIRMATIVE REASONS MUST
APPEAR TO WARRANT BROAD INJUNCTIONS."  283 F.2D, AT 29-30.  THE COURT
NOTED THAT THERE WERE NO SUCH FINDINGS OR FACTS IN THIS RECORD - NOT
EVEN A "STIPULATION DISCLOSING FACTS WHICH WARRANT BROAD RELIEF."  ID.,
AT 31.  THE COURT REASONED THAT THE LIMITATION OF SEC. 10(E) WAS
THEREFORE NO BARRIER TO ITS SUA SPONTE REVISION OF THE ORDER AND STATED
THAT "WE DO NOT THINK THAT CONSENT MAKES THE DIFFERENCE."  ID., AT 31. 
CONTRARY TO THE COURT OF APPEALS, WE THINK THAT CONSENT MAKES A
SIGNIFICANT DIFFERENCE; IT RELIEVES THE BOARD OF THE VERY NECESSITY OF
MAKING A SUPPORTING RECORD.  A DECREE RENDERED BY CONSENT "IS ALWAYS
AFFIRMED, WITHOUT CONSIDERING THE MERITS OF THE CAUSE."  NASHVILLE,
CHATTANOOGA & ST. LOUIS R. CO. V. UNITED STATES, 113 U.S. 261, 266. 
THERE ARE NOT HERE APPLICABLE ANY OF THE EXCEPTIONS, SUCH AS A CLAIM OF
LACK OF ACTUAL CONSENT, OR OF FRAUD IN THE PROCUREMENT OF THE ORDER, OR
OF LACK OF FEDERAL JURISDICTION.  SEE SWIFT & CO. V. UNITED STATES, 276
U.S. 311, 324. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED WITH DIRECTIONS THAT A JUDGMENT BE ENTERED WHICH AFFIRMS AND
ENFORCES THE BOARD'S ORDER.  IT IS SO ORDERED. 

FN1  THE COMPLAINT ISSUED ON AMENDED CHARGES FILED BY AN INDIVIDUAL
DENIED EMPLOYMENT.  IT ISSUED IN THE NAME OF THE REGIONAL DIRECTOR FOR
THE 24TH REGION, PUERTO RICO, ACTING ON BEHALF OF THE GENERAL COUNSEL. 
THE SETTLEMENT AGREEMENT WAS REACHED FOLLOWING THE ISSUANCE OF THE
COMPLAINT.  THE RESPONDENTS STIPULATED THAT THEY EXPRESSLY WAIVED "A
HEARING, AN INTERMEDIATE REPORT OF A TRIAL EXAMINER, THE FILING OF
EXCEPTIONS TO SUCH INTERMEDIATE REPORT, ORAL ARGUMENTS BEFORE THE
BOARD, AND ALL FURTHER AND OTHER PROCEEDINGS TO WHICH THEY  ...  MAY BE
ENTITLED  ...  UNDER THE ACT OR THE RULES AND REGULATIONS OF THE
BOARD."  R. 23.  SEE 49 STAT.  453, AS AMENDED, 29 U.S.C. SEC. 160(B),
(C); 29 CFR, 1961 CUM. SUPP., SECS. 101.9, 102.46. 

FN2  THE CONSENT ORDER ALSO PROVIDED FOR THE POSTING IN ENGLISH AND
IN SPANISH OF AGREED-UPON FORMS OF COMPLIANCE NOTICES. 

FN3  SECTION 10(E), 49 STAT. 454, AS AMENDED, 29 U.S.C. SEC. 160(E),
IS AS FOLLOWS: 

"(E)  PETITION TO COURT FOR ENFORCEMENT OF ORDER; PROCEEDINGS; REVIEW
OF JUDGMENT. 

"THE BOARD SHALL HAVE POWER TO PETITION ANY COURT OF APPEALS OF THE
UNITED STATES, OR IF ALL THE COURTS OF APPEALS TO WHICH APPLICATION MAY
BE MADE ARE IN VACATION, ANY DISTRICT COURT OF THE UNITED STATES,
WITHIN ANY CIRCUIT OR DISTRICT, RESPECTIVELY, WHEREIN THE UNFAIR LABOR
PRACTICE IN QUESTION OCCURRED OR WHEREIN SUCH PERSON RESIDES OR
TRANSACTS BUSINESS, FOR THE ENFORCEMENT OF SUCH ORDER AND FOR
APPROPRIATE TEMPORARY RELIEF OR RESTRAINING ORDER, AND SHALL FILE IN
THE COURT THE RECORD IN THE PROCEEDINGS, AS PROVIDED IN SECTION 2112 OF
TITLE 28.  UPON THE FILING OF SUCH PETITION, THE COURT SHALL CAUSE
NOTICE THEREOF TO BE SERVED UPON SUCH PERSON, AND THEREUPON SHALL HAVE
JURISDICTION OF THE PROCEEDING AND OF THE QUESTION DETERMINED THEREIN,
AND SHALL HAVE POWER TO GRANT SUCH TEMPORARY RELIEF OR RESTRAINING
ORDER AS IT DEEMS JUST AND PROPER, AND TO MAKE AND ENTER A DECREE
ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING ASIDE IN
WHOLE OR IN PART THE ORDER OF THE BOARD.  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.  THE
FINDINGS OF THE BOARD WITH RESPECT TO QUESTIONS OF FACT IF SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE SHALL BE
CONCLUSIVE.  IF EITHER PARTY SHALL APPLY TO THE COURT FOR LEAVE TO
ADDUCE ADDITIONAL EVIDENCE AND SHALL SHOW TO THE SATISFACTION OF THE
COURT THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR THE FAILURE TO ADDUCE SUCH EVIDENCE IN THE
HEARING BEFORE THE BOARD, ITS MEMBER, AGENT, OR AGENCY, THE COURT MAY
ORDER SUCH ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE BOARD, ITS
MEMBER, AGENT, OR AGENCY, AND TO BE MADE A PART OF THE RECORD.  THE
BOARD MAY MODIFY ITS FINDINGS AS TO THE FACTS, OR MAKE NEW FINDINGS BY
REASON OF ADDITIONAL EVIDENCE SO TAKEN AND FILED, AND IT SHALL FILE
SUCH MODIFIED OR NEW FINDINGS, WHICH FINDINGS WITH RESPECT TO QUESTIONS
OF FACT IF SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED
AS A WHOLE SHALL BE CONCLUSIVE, AND SHALL FILE ITS RECOMMENDATIONS, IF
ANY, FOR THE MODIFICATION OR SETTING ASIDE OF ITS ORIGINAL ORDER.  UPON
THE FILING OF THE RECORD WITH IT THE JURISDICTION OF THE COURT SHALL BE
EXCLUSIVE AND ITS JUDGMENT AND DECREE SHALL BE FINAL, EXCEPT THAT THE
SAME SHALL BE SUBJECT TO REVIEW BY THE APPROPRIATE UNITED STATES COURT
OF APPEALS IF APPLICATION WAS MADE TO THE DISTRICT COURT AS HEREINABOVE
PROVIDED, AND BY THE SUPREME COURT OF THE UNITED STATES UPON WRIT OF
CERTIORARI OR CERTIFICATION AS PROVIDED IN SECTION 1254 OF TITLE 28." 

FN4  THE RESPONDENTS HONORED THEIR AGREEMENT NOT TO CONTEST THE
ENFORCEMENT OF THE CONSENT ORDER BOTH IN THE COURT OF APPEALS AND IN
THIS COURT.  ONLY THE BOARD APPEARED BY THE SOLICITOR GENERAL IN THIS
COURT TO BRIEF AND ARGUE THE CAUSE. 

FN5  TWO OF THE CASES ARE PRESENTLY PENDING IN THIS COURT ON PETITION
FOR WRIT OF CERTIORARI.  LABOR BOARD V. LAS VEGAS SAND & GRAVEL CORP.,
CERTIORARI GRANTED LATER AND JUDGMENT REVERSED, POST, P. 400; LABOR
BOARD V. LOCAL 476, PLUMBERS, CERTIORARI GRANTED LATER AND JUDGMENT
REVERSED, POST, P. 401. 

FN6  THE ORDER HERE CONSENTED TO WOULD BE WITHIN THE BOARD'S
AUTHORITY UNDER APPROPRIATE CIRCUMSTANCES.  SEE, E.G., LABOR BOARD V.
SPRINGFIELD BUILDING & CONSTRUCTION TRADES COUNCIL, 262 F.2D 494, 498
499. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :




















MECHLING BARGE LINES V. UNITED STATES 368 U.S. 324 


NO. 41.  ARGUED NOVEMBER 8-9, 1961 - DECIDED DECEMBER 18, 1961 - 188 F.
SUPP. 386, JUDGMENT MODIFIED. 


OVER THE PROTESTS OF COMPETING BARGE LINES AND WITHOUT ANY HEARING,
INVESTIGATION OR FINDINGS, THE INTERSTATE COMMERCE COMMISSION, BASING
ITS ACTION ON THE FIRST PROVISO IN SEC. 4(1) OF THE INTERSTATE COMMERCE
ACT, GRANTED CERTAIN RAILROADS TEMPORARY AUTHORITY, PENDING FURTHER
CONSIDERATION, TO CHARGE LESS FOR CERTAIN LONG HAULS OF GRAIN THAN FOR
SHORTER HAULS OVER THE SAME LINE OR ROUTE, NOTWITHSTANDING THE GENERAL
PROHIBITION OF SEC. 4(1).  THE BARGE LINES SUED IN A FEDERAL DISTRICT
COURT UNDER 28 U.S.C. SEC. 1336, WHICH PROVIDES SPECIFICALLY FOR
JUDICIAL REVIEW OF THE COMMISSION'S ORDERS, AND UNDER THE
ADMINISTRATIVE PROCEDURE ACT AND THE DECLARATORY JUDGMENT ACT, TO HAVE
THE ORDER SET ASIDE AND TO HAVE THE COMMISSION'S PRACTICE OF ISSUING
SUCH ORDERS IN SUCH MANNER DECLARED TO BE BEYOND ITS POWERS.  THE
RAILROADS THEN ELIMINATED THE LONG-HAUL SHORT-HAUL RATE DISCRIMINATION;
WITHDREW THEIR APPLICATIONS TO THE COMMISSION FOR ITS AUTHORIZATION;
INTERVENED IN THE SUIT; AND, TOGETHER WITH THE COMMISSION, MOVED FOR
DISMISSAL, ON THE GROUNDS (1) OF MOOTNESS, AND (2) THAT THE DISTRICT
COURT LACKED JURISDICTION TO GRANT A DECLARATORY JUDGMENT.  THE
DISTRICT COURT GRANTED THE MOTIONS TO DISMISS, AND THE BARGE LINES
APPEALED TO THIS COURT UNDER 28 U.S.C. SEC. 1253.  HELD: 

1.  THE DISTRICT COURT SHOULD HAVE VACATED THE COMMISSION'S ORDER
WHICH IT DECLINED TO REVIEW ON THE GROUND OF MOOTNESS.  PP. 328-330. 

2.  IN VIEW OF THE FACT THAT, ON THIS APPEAL, THE COMMISSION HAS
CONCEDED THAT IT IS OBLIGED TO MAKE FINDINGS BEFORE ISSUING SUCH AN
ORDER AND THAT THE ORDER HERE INVOLVED IS FATALLY DEFECTIVE FOR WANT OF
SUCH FINDINGS, AND THE COMMISSION'S FURTHER REPRESENTATION THAT IT HAS
AMENDED ITS PRACTICE ACCORDINGLY, A DECLARATORY JUDGMENT PASSING ON THE
CHALLENGED COMMISSION PRACTICE SHOULD BE WITHHELD AT THIS TIME IN THE
EXERCISE OF JUDICIAL DISCRETION.  THIS COURT, THEREFORE, DOES NOT
DECIDE WHETHER THERE WAS AN "ACTUAL CONTROVERSY" BEFORE THE DISTRICT
COURT, OR WHETHER THAT COURT OTHERWISE HAD JURISDICTION TO RENDER A
DECLARATORY JUDGMENT.  PP. 330-331. 

3.  THE DISTRICT COURT'S ORDER DISMISSING THE COMPLAINT IS MODIFIED
TO PROVIDE THAT THE PROCEEDINGS ARE REMANDED TO THE COMMISSION WITH
DIRECTION TO VACATE AND SET ASIDE THE ORDER HERE INVOLVED.  P. 331. 

A.L. MECHLING BARGE LINES, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN DECEMBER 1958 THE APPELLEE RAILROADS PUBLISHED AND FILED WITH THE
INTERSTATE COMMERCE COMMISSION TARIFFS ESTABLISHING THROUGH COMBINATION
RATES, FROM GRAIN PRODUCING AREAS IN NORTHERN ILLINOIS TO CERTAIN
EASTERN DESTINATIONS, WHICH WERE LOWER THAN LOCAL OR FLAT RATES FOR THE
SAME COMMODITIES FROM CHICAGO TO THE SAME DESTINATIONS.  SINCE THESE
TARIFFS WOULD BE IN VIOLATION OF THE LONG- AND SHORT-HAUL PROVISIONS OF
SEC. 4(1) OF THE INTERSTATE COMMERCE ACT, (FN1) THE RAILROADS
SIMULTANEOUSLY APPLIED FOR THE ADMINISTRATIVE RELIEF WHICH IS
AUTHORIZED BY THE FIRST PROVISO TO SEC. 4(1).  (FN2)  TIMELY PROTESTS
WERE FILED BY THE APPELLANT BARGE LINES, ALLEGING THAT THE PROPOSED
RAILROAD RATES THREATENED THE EXTINCTION OF LEGITIMATE COMPETITION BY
WATER CARRIERS FOR THE TRAFFIC FROM THE PRODUCING AREAS INTO CHICAGO. 
ON JANUARY 9, 1959, DIVISION 2 OF THE COMMISSION ENTERED FOURTH SECTION
ORDER NO. 19059, AUTHORIZING THE PROPOSED RAILROAD RATES - ALTHOUGH
EXPRESSLY WITHHOLDING APPROVAL OF THEM - PENDING FURTHER COMMISSION
ACTION.  (FN3)  THE ORDER WAS ENTERED BEFORE ANY HEARING HAD BEEN HELD
OR INVESTIGATION COMPLETED, AND THE DIVISION DID NOT SET OUT ANY
FINDINGS.  ON THE SAME DAY, DIVISION 2 ORDERED THAT AN INVESTIGATION BE
INSTITUTED WITH RESPECT TO THE LAWFULNESS OF THE RATES.  (FN4) 

PENDING FINAL COMMISSION DETERMINATION AS TO WHETHER PERMANENT FOURTH
FOR 10 MONTHS, THE APPELLANT BARGE LINES FILED THE ACTION OF WHICH
REVIEW IS PRESENTLY SOUGHT, IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF MISSOURI.  THE COMPLAINT WAS BASED IN PART ON THE STATUTORY
PROCEDURE FOR REVIEW OF INTERSTATE COMMERCE COMMISSION ORDERS, (FN5)
AND IT PRAYED THE COURT TO SET ASIDE ORDER 19059 ON THE GROUND THAT THE
COMMISSION LACKED POWER TO GRANT FOURTH SECTION RELIEF AS TO PROTESTED
TARIFFS WITHOUT FIRST COMPLETING A FULL INVESTIGATION, HOLDING AN
ADVERSARY HEARING, AND MAKING EXPLICIT FINDINGS THAT THE STATUTORY
CRITERIA FOR THE GRANTING OF SUCH RELIEF HAD BEEN MET.  (FN6)  THE
COMPLAINT ALSO SOUGHT RELIEF UNDER THE DECLARATORY JUDGMENT ACT (FN7)
AND UNDER THE JUDICIAL REVIEW PROVISIONS OF THE ADMINISTRATIVE
PROCEDURE ACT; (FN8) THE COMPLAINT ALLEGED THAT THE CHALLENGED
ADMINISTRATIVE PRACTICE WAS A CONTINUING ONE, AND PRAYED FOR A
DECLARATION THAT THAT PRACTICE WAS BEYOND THE POWERS OF THE
COMMISSION. 

PENDING THE DETERMINATION OF THE ACTION, THE RAILROADS ELIMINATED THE
LONG-HAUL SHORT-HAUL DISCRIMINATION FROM THEIR RATES AND NOTIFIED THE
COMMISSION BY LETTER OF THEIR WITHDRAWAL OF THE FOURTH SECTION
APPLICATION RESPECTING WHICH ORDER 19059 HAD GRANTED TEMPORARY RELIEF. 
HAVING INTERVENED AS DEFENDANTS IN THE PENDING LAWSUIT, THE RAILROADS,
TOGETHER WITH THE COMMISSION, THEN MOVED FOR DISMISSAL OF THE ACTION ON
THE GROUNDS, FIRST, THAT AS TO THE PRAYER FOR ANNULMENT OF ORDER 19059
THE WITHDRAWAL OF THE FOURTH SECTION APPLICATION HAD RENDERED THE CAUSE
MOOT; AND, SECOND, THAT THE DISTRICT COURT LACKED JURISDICTION TO GRANT
A DECLARATORY JUDGMENT.  (FN9)  THE DISTRICT COURT GRANTED THE MOTIONS
TO DISMISS.  188 F. SUPP. 386.  THE BARGE LINES THEN PERFECTED THIS
APPEAL UNDER 28 U.S.C. SEC. 1253, AND WE POSTPONED DECISION AS TO OUR
JURISDICTION UNTIL HEARING ON THE MERITS.  365 U.S. 865. 

WE ARE, OF COURSE, IN ANY EVENT EMPOWERED AND OBLIGED TO DETERMINE
THE JURISDICTIONAL QUESTIONS IN DECIDING WHETHER THE DISTRICT COURT
CORRECTLY DISMISSED THE CASE.  AND THAT IS NECESSARILY OUR INITIAL
INQUIRY ON THIS APPEAL.  APPELLANTS DO NOT DENY THAT ORDER 19059 IS
PRESENTLY DEVOID OF PRACTICAL EFFECT, INASMUCH AS THE FOURTH SECTION
APPLICATION TO WHICH IT RELATES HAS BEEN WITHDRAWN.   STILL, THEY
INSIST THAT THE CASE IS NEITHER MOOT NOR INAPPROPRIATE FOR THE GRANTING
OF DECLARATORY RELIEF. 

FIRST, APPELLANTS ASSERT IN THEIR BRIEF THAT THEY "HAVE A CONTINUING
INTEREST IN HAVING F.S.O. 19059 VACATED SINCE IT WOULD BE A DEFENSE TO
ANY ACTION BY APPELLANTS AGAINST THE RAILROADS FOR DAMAGES SUFFERED
FROM THE RAILROADS' FOURTH SECTION DEPARTURE RATES."  APPELLANTS POINT,
IN THIS CONNECTION, TO CERTAIN OF OUR DECISIONS (FN10) WHICH SUGGEST TO
THEM THAT THEY WILL BE PRECLUDED FROM ATTACKING ORDER 19059
COLLATERALLY AND THAT THE ORDER MUST BE SET ASIDE, IF AT ALL, BY
STATUTORY DIRECT REVIEW. 

IN UNITED STATES V. MUNSINGWEAR, INC., 340 U.S. 36, THIS COURT
EXPRESSED THE VIEW THAT A PARTY SHOULD NOT BE CONCLUDED IN SUBSEQUENT
LITIGATION BY A DISTRICT COURT'S RESOLUTION OF ISSUES, WHEN APPELLATE
REVIEW OF THE JUDGMENT INCORPORATING THAT RESOLUTION, OTHERWISE
AVAILABLE AS OF RIGHT, FAILS BECAUSE OF INTERVENING MOOTNESS.  WE THERE
HELD THAT THAT PRINCIPLE SHOULD BE IMPLEMENTED BY THE REVIEWING COURT'S
VACATING THE UNREVIEWED JUDGMENT BELOW.  (FN11)  WE THINK THE PRINCIPLE
ENUNCIATED IN MUNSINGWEAR AT LEAST EQUALLY APPLICABLE TO UNREVIEWED
ADMINISTRATIVE ORDERS, AND WE ADOPT ITS PROCEDURE HERE.  THE DISTRICT
COURT SHOULD HAVE VACATED THE ORDER WHICH IT DECLINED TO REVIEW. 
(FN12)  SINCE OUR DISPOSITION RESTS SOLELY ON THE MOOTNESS OCCASIONED
BY THE RAILROADS' ELIMINATION OF THE LONG-HAUL SHORT-HAUL
DISCRIMINATION, IT IS NOT TO BE TAKEN AS FORECLOSING DETERMINATION, ON
ANY APPROPIRATE FUTURE OCCASION, AS TO (A) WHETHER THE COMMISSION WAS
EMPOWERED TO ENTER ORDER 19059 UTILIZING THE PROCEDURES IT DID; (B)
WHETHER ORDER 19059 WAS EFFECTIVE TO AUTHORIZE THE FOURTH SECTION
DEPARTURES TO WHICH IT RELATED; OR (C) WHETHER THE PENDENCY OF ORDER
19059 ESTABLISHES A DEFENSE FOR THE RAILROADS IF THE APPELLANTS CARRY
OUT THEIR INTENTION EXPRESSED TO US TO PREDICATE A DAMAGE SUIT AGAINST
THE RAILROADS ON THE ALLEGED VIOLATION OF THE STATUTE.  OF COURSE, WE
HERE INTIMATE NO VIEW AS TO WHETHER THERE MAY EXIST A CAUSE OF ACTION
FOR DAMAGES IN FAVOR OF A COMPETING CARRIER PREDICATED ON A FOURTH

SECOND, APPELLANTS ASSERT IN THEIR BRIEF THAT SINCE "THE  ...
PRACTICE OF THE COMMISSION IN GRANTING 'TEMPORARY' AUTHORITY FOR FOURTH
AND WITHOUT ANY HEARING OR FINDINGS IN THE ORDER GRANTING SUCH
AUTHORITY" IS A "CONTINUING" ONE, THERE IS PRESENTLY AN ACTUAL
CONTROVERSY WITHIN THE JURISDICTION OF THE COURT TO RESOLVE BY
DECLARATORY JUDGMENT.  (FN13) 

WE THINK IT SIGNIFICANT ON THIS ASPECT OF THE CASE THAT THE
COMMISSION HAS, ON THIS APPEAL, CONCEDED THAT IT IS OBLIGED TO MAKE
FINDINGS AND THAT THE CHALLENGED ORDER IS FATALLY DEFECTIVE BECAUSE NO
SUPPORTING FINDINGS WERE MADE.  THE COMMISSION FURTHER REPRESENTS THAT
IT HAS AMENDED ITS PRACTICE ACCORDINGLY.  IT THUS APPEARS THAT ONE OF
THE "CONTINUING" PRACTICES WHOSE VALIDITY APPELLANTS WOULD HAVE US
ADJUDICATE CONTINUES NO LONGER.  NOR WOULD IT BE APPROPRIATE TO DECIDE
AT THIS JUNCTURE WHETHER THE COMMISSION IS REQUIRED TO HOLD AN
EVIDENTIARY HEARING PRIOR TO GRANTING "TEMPORARY FOURTH SECTION
RELIEF."  DESPITE THE COMMISSION'S PRESENT INSISTENCE THAT IT IS NOT SO
REQUIRED, EXPERIENCE WITH ITS NEWLY ADOPTED PRACTICE OF MAKING FINDINGS
IN RESPECT OF ALL PROTESTED FOURTH SECTION ORDERS MAY LEAD THE
COMMISSION TO PROVIDE FOR A HEARING - AT LEAST UNDER SOME
CIRCUMSTANCES. 

DECLARATORY JUDGMENT IS A REMEDY COMMITTED TO JUDICIAL DISCRETION. 
NOR NEED THIS COURT FIRST HAVE THE VIEW OF A LOWER COURT BEFORE IT MAY
DECIDE THAT SUCH DISCRETION OUGHT NOT BE EXERCISED.  PUBLIC SERVICE
COMM'N V. WYCOFF CO., 344 U.S. 237.  WE THINK THAT SOUND DISCRETION
WITHHOLDS THE REMEDY WHERE IT APPEARS THAT A CHALLENGED "CONTINUING
PRACTICE" IS, AT THE MOMENT ADJUDICATION IS SOUGHT, UNDERGOING
SIGNIFICANT MODIFICATION SO THAT ITS ULTIMATE FORM CANNOT BE
CONFIDENTLY PREDICTED.  WE DO NOT, THEREFORE, REACH THE POSSIBLY
DIFFICULT QUESTIONS WHETHER APPELLANTS' CHALLENGE TO THE COMMISSION'S
"CONTINUING PRACTICE" GIVES RISE TO AN ACTUAL CONTROVERSY, OR WHETHER
THE DISTRICT COURT WAS ON THESE PLEADINGS OTHERWISE POSSESSED OF
JURISDICTION TO RENDER A DECLARATORY JUDGMENT.  (FN14) 

THE ORDER OF THE DISTRICT COURT DISMISSING THE COMPLAINT IS MODIFIED
TO PROVIDE THAT THE PROCEEDINGS ARE REMANDED TO THE INTERSTATE COMMERCE
COMMISSION WITH DIRECTION TO VACATE AND SET ASIDE ORDER 19059.  IT IS
SO ORDERED. 

FN1  24 STAT. 380, AS AMENDED, 49 U.S.C. SEC. 4(1): 

"IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THIS CHAPTER
OR CHAPTER 12 OF THIS TITLE TO CHARGE OR RECEIVE ANY GREATER
COMPENSATION IN THE AGGREGATE FOR THE TRANSPORTATION OF PASSENGERS, OR
OF LIKE KIND OF PROPERTY, FOR A SHORTER THAN FOR A LONGER DISTANCE OVER
THE SAME LINE OR ROUTE IN THE SAME DIRECTION, THE SHORTER BEING
INCLUDED WITHIN THE LONGER DISTANCE  ...  ." 

FN2  "PROVIDED, THAT UPON APPLICATION TO THE COMMISSION AND AFTER
INVESTIGATION, SUCH CARRIER, IN SPECIAL CASES, MAY BE AUTHORIZED BY THE
COMMISSION TO CHARGE LESS FOR LONGER THAN FOR SHORTER DISTANCES FOR THE
TRANSPORTATION OF PASSENGERS OR PROPERTY, AND THE COMMISSION MAY FROM
TIME TO TIME PRESCRIBE THE EXTENT TO WHICH SUCH DESIGNATED CARRIERS MAY
BE RELIEVED FROM THE OPERATION OF THE FOREGOING PROVISIONS OF THIS
PROVISO, THE COMMISSION SHALL NOT PERMIT THE ESTABLISHMENT OF ANY
CHARGE TO OR FROM THE MORE DISTANT POINT THAT IS NOT REASONABLY
COMPENSATORY FOR THE SERVICE PERFORMED; AND NO SUCH AUTHORIZATION SHALL
BE GRANTED ON ACCOUNT OF MERELY POTENTIAL WATER COMPETITION NOT
ACTUALLY IN EXISTENCE  ...  ." 

FN3  FOURTH SECTION ORDER NO. 19059, JAN. 9, 1959, GRAIN AND GRAIN
PRODUCTS FROM ILLINOIS TO THE EAST. 

FN4  DOCKET NO. 32790, JAN. 9, 1959, CORN, OATS, SOYBEANS - ILLINOIS
TO THE EAST. 

FN5  JURISDICTION TO ENJOIN AND SET ASIDE ORDERS OF THE INTERSTATE
COMMERCE COMMISSION IS CONFERRED ON THE DISTRICT COURTS BY 28 U.S.C.
SEC. 1336.  SECTION 1398 LOCATES VENUE IN THE DISTRICT OF THE
PLAINTIFF'S RESIDENCE OR PRINCIPAL OFFICE.  SECTION 2322 MAKES THE
UNITED STATES A NOMINAL DEFENDANT, SEC. 2323 AUTHORIZES THE
INTERVENTION OF THE COMMISSION OR OF ANY INTERESTED PARTY, AND SEC.
2325 REQUIRES SUCH ACTIONS TO BE HEARD AND DETERMINED BY A THREE-JUDGE
COURT. 

FN6  THE COMPLAINT ALLEGED THAT THE STATUTORY REQUIREMENT THAT THE
RATE FOR THE LONGER HAUL BE "REASONABLY COMPENSATORY" HAD, BY
AUTHORITATIVE ADMINISTRATIVE GLOSS, BEEN IMBUED WITH FOUR DISTINCT
CRITERIA, NAMELY, THAT A RATE SO DESCRIBED MUST: 

"(1) COVER AND MORE THAN COVER THE EXTRA OR ADDITIONAL EXPENSES
INCURRED IN HANDLING THE TRAFFIC TO WHICH IT APPLIES; (2) BE NO LOWER
THAN NECESSARY TO MEET EXISTING COMPETITION; (3) NOT BE SO LOW AS TO
THREATEN THE EXTINCTION OF LEGITIMATE COMPETITION BY WATER CARRIERS;
AND (4) NOT IMPOSE AN UNDUE BURDEN ON OTHER TRAFFIC OR JEOPARDIZE THE
APPROPRIATE RETURN ON THE VALUE OF CARRIER PROPERTY GENERALLY, AS
CONTEMPLATED IN SECTION 15A OF THE ACT." 

FN7  28 U.S.C. SECS. 2201, 2202. 

FN8  60 STAT. 243, 5 U.S.C. SEC. 1009. 

FN9  AS TO LACK OF JURISDICTION TO GRANT A DECLARATORY JUDGMENT IT
WAS ARGUED NOT ONLY THAT THERE WAS NO "ACTUAL CONTROVERSY" WITHIN THE
MEANING OF 28 U.S.C. SEC. 2201, BUT ALSO THAT THE STATUTORY PROVISIONS
SET FORTH IN NOTE 5, SUPRA, WHICH INCORPORATE NO PROVISION FOR
DECLARATORY RELIEF, PROVIDE THE EXCLUSIVE MODE OF JUDICIAL REVIEW OF
INTERSTATE COMMERCE COMMISSION ORDERS. 

FN10  LAMBERT RUN COAL CO. V. BALTIMORE & OHIO R. CO., 258 U.S. 377
(SHIPPER'S ACTION TO COMPEL ALLOTMENT OF CARS IN CONTRAVENTION OF
I.C.C. RULES MUST BE BROUGHT IN FEDERAL COURT PURSUANT TO STATUTORY
REVIEW PROCEDURE); VENNER V. MICHIGAN CENTRAL R. CO., 271 U.S. 127
(STOCKHOLDER'S SUIT TO ENJOIN RAILROAD FROM ACQUIRING EQUIPMENT AS
AUTHORIZED BY I.C.C.  ORDER MUST BE BROUGHT IN FEDERAL COURT PURSUANT
TO STATUTORY REVIEW PROCEDURE); CALLANAN ROAD CO. V. UNITED STATES, 345
U.S. 507 (AUTHORITY OF I.C.C. TO AMEND CERTIFICATE CANNOT BE RAISED
COLLATERALLY IN PROCEEDING TO INTERPRET AMENDED CERTIFICATE). 

FN11  SUCH HAS BEEN THE LONG-STANDING PRACTICE OF THIS COURT IN CIVIL
CASES.  SEE UNITED STATES V. MUNSINGWEAR, INC., 340 U.S. 36, 39-40, N.
2; COZART V. WILSON, 352 U.S. 884.  IN ATCHISON, T.&S.F.R. CO. V. DIXIE
CARRIERS, INC., 355 U.S. 179, THIS COURT, HAVING BEEN APPRISED THAT THE
TEMPORARY FOURTH SECTION RELIEF ORDER THERE UNDER ATTACK HAD BEEN
SUPERSEDED AND MOOTED BY A SUBSEQUENT COMMISSION ORDER, VACATED THE
DISTRICT COURT'S JUDGMENT AND REMANDED WITH DIRECTIONS TO DISMISS THE
COMPLAINT - THUS LEAVING THE CHALLENGED ADMINISTRATIVE ORDER
UNANNULLED.  WE DO NOT CONSIDER THAT CASE TO HAVE ESTABLISHED ANY
PRECEDENT DEMANDING OUR ADHERENCE HERE, SINCE ALL THE PARTIES THERE
JOINED IN REPRESENTING TO THE COURT THAT THE CHALLENGED ORDER "IS NOW
ONLY OF ACADEMIC INTEREST."  MEMORANDUM SUGGESTING THAT THE CAUSE IS
MOOT, P. 3. 

FN12  IN THEIR LETTER INFORMING THE COMMISSION OF THE WITHDRAWAL OF
THEIR FOURTH SECTION APPLICATION, THE RAILROADS EXPRESSED THEIR
UNDERSTANDING THAT "THE TEMPORARY FOURTH SECTION ORDERS ISSUED IN
RESPONSE TO THIS APPLICATION WILL BE CANCELLED AND THE AUTHORITY
DISCONTINUED."    FN13  APPELLANTS STATE THAT ON SEVERAL PREVIOUS
OCCASIONS JUDICIAL REVIEW OF THE PRACTICE WHICH THEY CHALLENGE HAS
FAILED BECAUSE OF INTERVENING MOOTNESS OCCASIONED EITHER BY THE
WITHDRAWAL OF APPLICATIONS, CITING COASTWISE LINE V. UNITED STATES, 157
F. SUPP. 305; AMERICAN COMMERCIAL BARGE LINE CO. V. UNITED STATES, CIV.
NO. 11772 (S.D. TEX. 1959), OR BY SUPERSEDING COMMISSION ORDERS, CITING
ATCHISON, T.&S.F.R. CO. V. DIXIE CARRIERS, INC., 355 U.S. 179. 

FN14  SEE NOTE 9, SUPRA. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK AND
MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

BELIEVING THAT AN ACTUAL CONTROVERSY STILL EXISTS IN THIS CASE, I
CANNOT AGREE THAT IT IS MOOT.  IN MY OPINION, THE EVENTS OCCURRING
SUBSEQUENT TO THE FILING OF THIS SUIT HAVE NOT NEGATED THE NECESSITY
FOR A DECISION ON THE ISSUES RAISED BY THE COMPLAINT, AND I WOULD
VACATE THE DISMISSAL OF THE THREE-JUDGE DISTRICT COURT AND REMAND THE
CASE TO IT WITH INSTRUCTIONS TO PASS ON THESE ISSUES. 

THE COMPLAINT FILED BY APPELLANT BARGE LINES SOUGHT TO SET ASIDE, FOR
LACK OF STATUTORILY REQUIRED FINDINGS, A TEMPORARY ORDER OF THE
COMMISSION PERMITTING CERTAIN RAILROADS TO IMPOSE HIGHER TARIFFS FOR
THE TRANSPORTATION OF GRAIN "FOR A SHORTER THAN FOR A LONGER DISTANCE
OVER THE SAME LINE OR ROUTE."  THE COMPLAINT ALSO ASKED FOR A
DECLARATION THAT IT WAS UNLAWFUL UNDER THE ACT FOR THE COMMISSION AND
THE RAILROADS TO ENGAGE IN A PRACTICE WHEREBY SUCH ILLEGAL TEMPORARY
ORDERS IN A CONTINUOUS SERIES WERE UTILIZED TO BY-PASS THE LONG- AND
SHORT-HAUL PROVISIONS OF SEC. 4(1) OF THE ACT.  THE RAILROADS IN
QUESTION INTERVENED IN THE CASE SHORTLY AFTER THE COMPLAINT WAS FILED. 
THE ISSUES RAISED BY THE COMPLAINT ARE TWOFOLD:  (1) THE VALIDITY OF
THE TEMPORARY ORDER, AND (2) THE VALIDITY OF THE ALLEGED CONTINUING
PRACTICE USED AGAINST APPELLANTS. 

THE THREE-JUDGE DISTRICT COURT THOUGHT THAT THE ELIMINATION BY THE
RAILROADS OF THE LONG-HAUL SHORT-HAUL DISCRIMINATION, ACCOMPANIED BY
THE WITHDRAWAL OF THE APPLICATION WHICH HAS SOUGHT PERMISSION FOR SUCH
DISCRIMINATION, LEFT THE DECISION AS TO THE VALIDITY OF THE TEMPORARY
ORDER A MEANINGLESS ISSUE.  THIS OVERLOOKS THE FACT THAT THE VALIDITY
OF THIS ORDER IS STILL AN ACTUAL CONTROVERSY BETWEEN THE APPELLANTS AND
THE INTERVENING RAILROADS.  NEITHER THE CONCESSION OF INVALIDITY BY THE
COMMISSION NOR THE VACATION OF THE ORDER PURSUANT TO THE COURT'S
OPINION IS DETERMINATIVE OF THE ORDER'S VALIDITY.  UPON THE
DETERMINATION OF THIS ISSUE RESTS THE ABILITY OF THE APPELLANTS TO
COLLECT DAMAGES OCCASIONED BY THE TARIFFS USED BY THE RAILROADS
PURSUANT TO THE TEMPORARY ORDER, ASSUMING THAT A PLAUSIBLE THEORY OF
LIABILITY EXISTS (A QUESTION WHICH I NEED NOT NOW DECIDE).  FOR
AUTHORITY INDICATING THAT THE VALIDITY ISSUE IS SAVED FROM MOOTNESS BY
THE POSSIBILITY THAT THE ORDER MAY "BE THE BASIS OF FURTHER
PROCEEDINGS," SEE SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE COMMERCE
COMM'N, 219 U.S. 498, 515 (1911).  MOREOVER, I NOTE THE FACT THAT
APPELLANTS WOULD NOT BE BARRED FROM CHALLENGING THE ORDER IN A LATER
SUIT - THE POINT RELIED UPON BY THE MAJORITY IN AFFIRMING - DOES NOT
RENDER THE ISSUE MOOT IN THIS CASE. 

IF THE ONLY NEED FOR A DECISION ON THE VALIDITY OF THIS TEMPORARY
ORDER WERE TO AID A SUIT FOR DAMAGES WHICH MIGHT POSSIBLY BE BROUGHT, I
MIGHT NOT FORMALLY TAKE ISSUE WITH THE DECISION BELOW AND ITS
AFFIRMANCE BY MY BRETHREN.  HOWEVER, BECAUSE OF THE SECOND ISSUE RAISED
BY THE COMPLAINT, (FN1) I.E., AN ALLEGED CIRCUMVENTION OF THE ACT BY
THE UTILIZATION OF A CONTINUOUS STREAM OF SUCH TEMPORARY ORDERS, THE
VALIDITY OF THIS ORDER, AS WELL AS THE PRACTICE WHICH GAVE BIRTH TO IT,
IS PRESENTLY DISPUTED IN THIS VERY CASE. 

THE CONTINUING PRACTICE OF WHICH THE APPELLANTS COMPLAIN CONSISTS OF
AN APPLICATION BY THE RAILROADS FOR AN ORDER PERMITTING THE IMPOSITION
OF A LOWER TARIFF FOR A LONG-HAUL THAN IS CHARGED FOR A SHORT-HAUL OVER
THE SAME LINE; THE ISSUANCE BY THE COMMISSION OF A TEMPORARY ORDER
WITHOUT THE NECESSARY FINDINGS REQUIRED BY SEC. 4(1); THE MAINTENANCE
OF SUCH TEMPORARY ORDER AS LONG AS POSSIBLE BY DELAYING THE FINAL
DISPOSITION OF THE APPLICATION; AND THE WITHDRAWAL OR VACATION OF SUCH
ORDER WHENEVER A JUDICIAL TEST OF ITS VALIDITY APPEARS IMMINENT,
THEREBY FRUSTRATING ANY REVIEW ON THE GROUND OF MOOTNESS.  IT IS
CLAIMED THAT BY CONTINUALLY REPEATING THIS PROCESS THE RAILROADS AND
THE COMMISSION HAVE KEPT IN EFFECT AN ILLEGAL TARIFF FOR TRANSPORTATION
BY RAIL TO THE DAMAGE OF THE COMPETING BARGE LINES. 

THE LOWER COURT, ALTHOUGH RECOGNIZING THAT THE CONTINUING PRACTICE
ISSUE WAS BEFORE IT, FELT THAT THIS QUESTION DID NOT PRESENT A
JUSTICIABLE CONTROVERSY.  THE OPINION OF THE COURT AFFIRMS THIS RESULT
BY SAYING THAT REGARDLESS OF WHETHER THIS QUESTION PRESENTS AN ACTUAL
CONTROVERSY, IT IS SOUND JUDICIAL DISCRETION TO WITHHOLD ANY RELIEF
BECAUSE THE COMMISSION HAS RENOUNCED BEFORE THIS COURT THE CHALLENGED
PRACTICE.  IT APPEARS THAT THE COURT HAS PLACED ITSELF IN THE DUBIOUS
POSITION OF UPHOLDING A DISCRETION THAT WAS NEVER EXERCISED ON A GROUND
THAT WAS NEVER PRESENTED.  I AM MYSTIFIED BY THE TACTIC WHICH IN EFFECT
EXERCISES A DISCRETION COMMITTED INITIALLY TO THE TRIAL COURT IN ORDER
TO AVOID DECIDING "POSSIBLY DIFFICULT QUESTIONS" PROPERLY BEFORE THIS
COURT. 

IN MY VIEW THE COMPLAINT AS INTERPRETED AND APPLIED BY THE COURT
BELOW RAISES AN ACTUAL CONTROVERSY AS TO THE VALIDITY OF THE ALLEGED
PRACTICE.  (FN2)  EVEN THOUGH THERE IS A CONTROVERSY, THE COURT BELOW
IN THE EXERCISE OF ITS DISCRETION MIGHT DECIDE THAT NO RELIEF, EITHER
INJUNCTIVE OR DECLARATORY, IS CALLED FOR; HOWEVER, I DO NOT FEEL THAT
THE INTERVENING PARTIAL REPENTANCE BY THE COMMISSION COMPELS THE LOWER
COURT TO REFUSE RELIEF.  RATHER I WOULD THINK THAT THE COMMISSION'S
REPRESENTATION IS ONLY ONE FACT TO BE CONSIDERED ALONG WITH ALL THE
OTHER CIRCUMSTANCES WHICH APPELLANTS' AFFIDAVITS INDICATE THEY WOULD
SHOW IF AFFORDED THE OPPORTUNITY.  (FN3)  FURTHERMORE, THE COURT BELOW
MIGHT TAKE NOTE OF PRECEDING CASES WHICH INDICATE THAT THE RAILROADS
HAVE PLAYED HANKY-PANKY WITH THEIR RATES FOR YEARS IN AN EFFORT TO
ATTRACT FREIGHT AWAY FROM THE WATERWAYS.  (FN4) 

TO SUM UP, AT THE TIME THIS CASE WAS DISMISSED AS MOOT THERE WAS A
CHARGE THAT THE COMMISSION AND THE RAILROAD INTERVENORS WERE FOLLOWING
A PRACTICE OF USING ILLEGAL "TEMPORARY" ORDERS TO FRUSTRATE THE PURPOSE
OF CONGRESS TO HAVE THE ACT "SO ADMINISTERED AS TO RECOGNIZE AND
PRESERVE THE INHERENT ADVANTAGES" OF "ALL MODES OF TRANSPORTATION
SUBJECT THERETO  ...  ."  BASED ON THIS PRACTICE THE APPELLANTS PRAYED
THAT THE TEMPORARY ORDERS AND THE CONTINUOUS PRACTICE BE DECLARED
ILLEGAL AND ENJOINED AND FOR OTHER APPROPRIATE RELIEF.  UNDER THE
RECORD HERE PRESENTED, I AM CONVINCED THAT THERE IS A CONTROVERSY WHICH
IF HEARD COULD BE AMENABLE TO JUDICIAL RELIEF.  I WOULD VACATE THE
DISMISSAL AND REMAND THE CASE TO THE COURT BELOW FOR ITS CONSIDERATION
OF THE ISSUES RAISED AND FOR ITS DECISION THEREON, INCLUDING WHETHER,
IN THE EXERCISE OF ITS DISCRETION, ANY INJUNCTIVE OR DECLARATIVE RELIEF
IS CALLED FOR; AND WITH THE FURTHER INSTRUCTION, IN ACCORDANCE WITH THE
PRACTICE UTILIZED IN BRYAN V. AUSTIN, 354 U.S. 933 (1957), THAT UPON
APPELLANTS' REQUEST THEY BE GRANTED LEAVE TO AMEND THEIR PLEADINGS TO
MEET THE CHANGED CONDITION OF THE CASE AS BROUGHT ABOUT BY THE
COMMISSION'S INTERVENING CONCESSION THAT ITS ORDER WAS VOID, AS WELL AS
ITS RENOUNCEMENT OF THE CHALLENGED PRACTICE.  INDEED, SOME OF OUR CASES
INDICATE THAT IF APPELLANTS AT THAT TIME CHOSE TO ASSERT THEIR CAUSE OF
ACTION FOR DAMAGES, THAT TOO MIGHT BE INCLUDED IN SUCH AMENDMENT, IN
WHICH EVENT THAT CLAIM WOULD BE HEARD BY A SINGLE JUDGE OF THE THREE
JUDGE COURT.  COMPARE BRYAN V. AUSTIN, SUPRA; PUBLIC SERVICE COMM'N V.
BRASHEAR FREIGHT LINES, 312 U.S. 621 (1941). 

FN1  IT COULD BE ARGUED THAT EVEN IF THE CONTINUING PRACTICE WAS NOT
AN ISSUE IN THE CASE, ITS EXISTENCE COULD BE CONSIDERED IN DETERMINING
WHETHER THE CASE IS MOOT.  SEE SOUTHERN PACIFIC TERMINAL CO. V.
INTERSTATE COMMERCE COMM'N, 219 U.S. 498 (1911). 

FN2  ANALYSIS OF THE COMPLAINT REVEALS THAT APPELLANTS ALLEGED THE
COMMISSION "STILL FOLLOWS THE PRACTICE OF ENTERING SUCH ORDERS WITHOUT
SUPPORTING FINDINGS."  IT WAS REQUESTED THAT "THE ABSENCE OF ANY POWER
AND AUTHORITY IN THE COMMISSION TO ENTER TEMPORARY FOURTHSECTION ORDERS
PRIOR TO A HEARING, AND TO ENTER THEM WITHOUT SUPPORTING FINDINGS, BE
DEFINITELY ESTABLISHED."  ALSO, APPELLANTS NOTED THAT THE VALIDITY OF
THE COMMISSION'S TEMPORARY ORDER MIGHT BECOME MOOT BY THE ENTRY OF A
FINAL ORDER, "JUST AS OTHER CASES IN WHICH SIMILAR RELIEF HAS BEEN
SOUGHT HAVE BECOME MOOT BEFORE THE ISSUES COULD BE DETERMINED BY THE
SUPREME COURT." 

FN3  SUCH OTHER FACTORS WOULD INCLUDE EVIDENCE THAT, IN 1958-1959
ALONE, THE WATER CARRIERS HAD PROTESTED EIGHT OTHER SEPARATE AND
DISTINCT SEC. 4 RELIEF APPLICATIONS IN WHICH TEMPORARY ORDERS SIMILAR
TO THAT INVOLVED HERE WERE SOUGHT AND OBTAINED; THAT IN OVER A YEAR
ONLY ONE OF THESE APPLICATIONS HAD BEEN FORMALLY ACTED UPON BY THE
COMMISSION; THAT TWO OF THESE APPLICATIONS WERE WITHDRAWN IN THE FACE
OF PENDING TESTS; THAT FIVE OF THESE APPLICATIONS ARE STILL AWAITING
FINAL DECISION BEFORE THE COMMISSION WITH TEMPORARY ORDERS HAVING BEEN
IN EFFECT FOR OVER ONE AND A HALF YEARS; THAT THESE TEMPORARY RATES
WERE AVOWEDLY DESIGNED BY THE RAILROADS TO DIVERT FREIGHT FROM THE
WATER CARRIERS; AND THAT AS A RESULT THE WATER CARRIERS LOST THOUSANDS
OF TONS OF GRAIN SHIPMENTS PER YEAR. 

FN4  INTERSTATE COMMERCE COMM'N V. MECHLING, 330 U.S. 567 (1947);
INTERSTATE COMMERCE COMM'N V. INLAND WATERWAYS CORP., 319 U.S. 671, 692
703 (DISSENTING OPINION)(1943).  ALSO SEE CASES CITED NOTE 13 OF THE
COURT'S OPINION. 
..END :











TURNBOW V. COMMISSIONER OF INTERNAL REVENUE 368 U.S. 337 


NO. 60.  ARGUED NOVEMBER 15-16, 1961 - DECIDED DECEMBER 18, 1961 - 286
F.2D 669, AFFIRMED. 


IN THE ABSENCE OF A "REORGANIZATION," AS THAT TERM IS DEFINED IN SEC.
112(G)(1)(B) AND USED IN SEC. 112(B)(3) OF THE INTERNAL REVENUE CODE OF
1939, THE GAIN ON AN EXCHANGE OF STOCK FOR STOCK PLUS CASH IS TO BE
RECOGNIZED IN FULL.  THE TAXPAYER IS NOT ENTITLED UNDER SEC. 112(C)(1)
TO HAVE IT RECOGNIZED ONLY TO THE EXTENT OF THE CASH.  PP. 337-344. 

TURNBOW ET UX. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES AND TURNS ON THE PROPER INTERPRETATION AND
INTERACTION OF SECS. 112(G)(1)(B), 112(B)(3) AND 112(C)(1) OF THE
INTERNAL REVENUE CODE OF 1939.  (FN1)  SPECIFICALLY THE QUESTION
PRESENTED IS WHETHER, IN THE ABSENCE OF A "REORGANIZATION," AS THAT
TERM IS DEFINED IN SEC. 112(G)(1)(B) AND USED IN SEC. 112(B)(3), THE
GAIN ON AN EXCHANGE OF STOCK FOR STOCK PLUS CASH IS TO BE RECOGNIZED IN
FULL, OR, BECAUSE OF THE PROVISIONS OF SEC. 112(C)(1), IS TO BE
RECOGNIZED ONLY TO THE EXTENT OF THE CASH. 

THE FACTS ARE SIMPLE AND UNDISPUTED.  PETITIONER (FN2) OWNED ALL OF
THE 5,000 SHARES OF OUTSTANDING STOCK OF INTERNATIONAL DAIRY SUPPLY
COMPANY ("INTERNATIONAL"), A NEVADA CORPORATION.  IN 1952, PETITIONER
TRANSFERRED ALL OF THE INTERNATIONAL STOCK TO FOREMOST DAIRIES, INC.
("FOREMOST"), A NEW YORK CORPORATION, IN EXCHANGE FOR 82,375 SHARES (A
MINOR PERCENTAGE) OF FOREMOST'S COMMON (VOTING) STOCK OF THE FAIR
MARKET VALUE OF $15 PER SHARE OR $1,235,625 PLUS CASH IN THE AMOUNT OF
$3,000,000.  PETITIONER'S BASIS IN THE INTERNATIONAL STOCK WAS $50,000,
AND HIS EXPENSES IN CONNECTION WITH THE TRANSFER WERE $21,933.06. 
PETITIONER THEREFORE RECEIVED FOR HIS INTERNATIONAL STOCK PROPERTY AND
MONEY OF A VALUE EXCEEDING HIS BASIS AND EXPENSES BY $4,163,691.94. 

IN HIS INCOME TAX RETURN FOR 1952, PETITIONER TREATED HIS GAIN AS
RECOGNIZABLE ONLY TO THE EXTENT OF THE CASH HE RECEIVED.  THE
COMMISSIONER CONCLUDED THAT THE WHOLE OF THE GAIN WAS RECOGNIZABLE AND
ACCORDINGLY PROPOSED A DEFICIENCY.  ON THE TAXPAYER'S PETITION FOR
REDETERMINATION, THE TAX COURT, FOLLOWING ITS EARLIER DECISION IN
BONHAM V. COMMISSIONER, 33 B.T.A. 1100, 1104, (FN3) AND THE OPINION OF
THE SEVENTH CIRCUIT IN HOWARD V. COMMISSIONER OF INTERNAL REVENUE, 238
F.2D 943, 948, (FN4) HELD THAT THE GAIN WAS RECOGNIZABLE ONLY TO THE
EXTENT OF THE CASH.  32 T.C. 646.  ON THE COMMISSIONER'S APPEAL, THE
NINTH CIRCUIT DISAGREED WITH THE TAX COURT AND WITH THE SEVENTH
CIRCUIT'S DECISION IN THE HOWARD CASE, SUPRA, AND REVERSED.  286 F.2D
669.  TO RESOLVE THIS CONFLICT, ON A MATTER OF IMPORTANCE TO THE PROPER
INTERPRETATION AND UNIFORM APPLICATION OF THE INTERNAL REVENUE LAWS, WE
GRANTED CERTIORARI.  366 U.S. 923. 

BECAUSE OF THE ARBITRARY AND TECHNICAL CHARACTER, AND OF THE SOMEWHAT
"HODGEPODGE" FORM, OF THE STATUTES INVOLVED, THE INTERPRETATION PROBLEM
PRESENTED IS HIGHLY COMPLICATED; AND ALTHOUGH BOTH PARTIES RELY UPON
THE "PLAIN WORDS" OF THESE STATUTES, THEY ARRIVE AT DIAMETRICALLY
OPPOSED CONCLUSIONS.  THAT PLAUSIBLE ARGUMENTS CAN BE AND HAVE BEEN
MADE IN SUPPORT OF EACH CONCLUSION MUST BE ADMITTED; AND, AS MIGHT BE
EXPECTED, THEY HAVE HARDLY LIGHTENED OUR INESCAPABLE BURDEN OF
DECISION. 

THE STARTING POINT OF OUR ANALYSIS MUST BE THE "GENERAL RULE" STATED
IN SEC. 112(A).  IT PROVIDES:

"GENERAL RULE.  UPON THE SALE OR EXCHANGE OF PROPERTY THE ENTIRE
AMOUNT OF THE GAIN OR LOSS  ... SHALL BE RECOGNIZED, EXCEPT AS
HEREINAFTER PROVIDED IN THIS SECTION." 

VARIOUS EXCEPTIONS, DEALING WITH EXCHANGES SOLELY IN KIND, ARE STATED
IN SUBSECTIONS (B)(1) THROUGH (B)(6).  (FN5)  THE EXCEPTION CLAIMED TO
BE RELEVANT HERE IS CONTAINED IN SUBSECTION (B)(3).   IT PROVIDES: 

"STOCK FOR STOCK ON REORGANIZATION.  NO GAIN OR LOSS SHALL BE
RECOGNIZED IF STOCK OR SECURITIES IN A CORPORATION A PARTY TO A
REORGANIZATION ARE, IN PURSUANCE OF THE PLAN OF REORGANIZATION,
EXCHANGED SOLELY FOR STOCK OR SECURITIES IN SUCH CORPORATION OR IN
ANOTHER CORPORATION A PARTY TO THE REORGANIZATION." 

BY DEFINITION, CONTAINED IN SEC. 112(G)(1)(B), THE TERM
"REORGANIZATION" MEANS "THE ACQUISITION BY ONE CORPORATION, IN EXCHANGE
SOLELY FOR ALL OR A PART OF ITS VOTING STOCK, OF AT LEAST 80 PER CENTUM
OF THE  ...  STOCK OF ANOTHER CORPORATION."  (FN6)  THIS TYPE OF
REORGANIZATION IS COMMONLY CALLED A "(B) REORGANIZATION." 

THERE IS NO DISPUTE BETWEEN THE PARTIES ABOUT THE FACT THAT THE
TRANSACTION INVOLVED WAS NOT A "REORGANIZATION," AS DEFINED IN SEC.
112(G)(1)(B), BECAUSE "THE ACQUISITION BY" FOREMOST WAS NOT "IN
EXCHANGE SOLELY FOR  ...  ITS VOTING STOCK," BUT WAS PARTLY FOR SUCH
STOCK AND PARTLY FOR CASH.  HELVERING V. SOUTHWEST CONSOLIDATED CORP.,
315 U.S. 194.  NOR IS THERE ANY DISPUTE THAT THE TRANSACTION WAS NOT
ACTUALLY WITHIN THE TERMS OF SEC. 112(B)(3), BECAUSE THE EXCHANGE WAS
NOT OF "STOCK  ...  IN  ...  A PARTY TO A REORGANIZATION," "IN
PURSUANCE OF A PLAN OF REORGANIZATION," NOR "FOR STOCK  ...  IN ANOTHER
CORPORATION WHICH WAS A PARTY TO THE REORGANIZATION." 

BUT PETITIONER CONTENDS THAT SEC. 112(C)(1) AUTHORIZES THE INDULGING
OF ASSUMPTIONS, CONTRARY TO THE ACTUAL FACTS, HYPOTHETICALLY TO SUPPLY
THE MISSING ELEMENTS THAT ARE NECESSARY TO MAKE THE EXCHANGE A
"REORGANIZATION," AS DEFINED IN SEC. 112(G)(1)(B) AND AS USED IN SEC.
112(B)(3), AND THE CASE TURNS ON WHETHER THAT IS SO.  SECTION 112(C)(1)
PROVIDES: 

"GAINS FROM EXCHANGES NOT SOLELY IN KIND.  (1) IF AN EXCHANGE WOULD
BE WITHIN THE PROVISIONS OF SUBSECTION (B)(1), (2), (3), OR (5), OR
WITHIN THE PROVISIONS OF SUBSECTION (1), OF THIS SECTION IF IT WERE NOT
FOR THE FACT THAT THE PROPERTY RECEIVED IN EXCHANGE CONSISTS NOT ONLY
OF PROPERTY PERMITTED BY SUCH PARAGRAPH OR BY SUBSECTION (1) TO BE
RECEIVED WITHOUT THE RECOGNITION OF GAIN, BUT ALSO OF OTHER PROPERTY OR
MONEY, THEN THE GAIN, IF ANY, TO THE RECIPIENT SHALL BE RECOGNIZED, BUT
IN AN AMOUNT NOT IN EXCESS OF THE SUM OF SUCH MONEY AND THE FAIR MARKET
VALUE OF SUCH OTHER PROPERTY." 

CENTERING UPON THIS SECTION, AND UPON THE SEVENTH CIRCUIT'S
INTERPRETATION OF IT IN THE HOWARD CASE, SUPRA, (FN7) PETITIONER ARGUES
THAT "IF IT WERE NOT FOR THE FACT THAT THE PROPERTY HE RECEIVED IN THE
EXCHANGE" CONSISTED NOT ONLY OF VOTING STOCK - "PROPERTY PERMITTED BY
SEC.  112(B)(3) TO BE RECEIVED IF IN A CORPORATION WHICH IS A PARTY TO
A REORGANIZATION WITHOUT THE RECOGNITION OF GAIN" - BUT ALSO OF CASH,
THE EXCHANGE WOULD HAVE BEEN A "REORGANIZATION," AS DEFINED IN SEC.
112(G)(1)(B), BECAUSE, IN THAT CASE, "THE ACQUISITION BY" FOREMOST
WOULD HAVE BEEN "IN EXCHANGE SOLELY FOR  ... ITS VOTING STOCK"; AND THE
EXCHANGE ALSO WOULD HAVE BEEN WITHIN THE TERMS OF SEC. 112(B)(3)
BECAUSE, IN THAT CASE, THE EXCHANGE WOULD HAVE BEEN OF "STOCK  ...  IN
...  A PARTY TO A REORGANIZATION," "IN PURSUANCE OF A PLAN OF
REORGANIZATION," AND "FOR STOCK  ...  IN ANOTHER CORPORATION WHICH WAS
A PARTY TO THE REORGANIZATION."  PETITIONER THEN ARGUES THAT INASMUCH
AS HIS TRANSACTION WOULD HAVE BEEN A "REORGANIZATION," AS DEFINED IN
SEC. 112(G)(1)(B) AND USED IN SEC. 112(B)(3), AND HENCE "WOULD HAVE
BEEN WITHIN THE PROVISIONS OF SUBSECTION (B)  ...  (3)," "IF IT WERE
NOT FOR THE FACT THAT THE PROPERTY HE RECEIVED" CONSISTED "NOT ONLY OF"
VOTING STOCK "BUT ALSO OF  ...  MONEY," SEC. 112(C)(1) AUTHORIZES THE
ASSUMPTION, AS RESPECTS THE FOREMOST STOCK HE RECEIVED, THAT THE
EXCHANGE WAS A "REORGANIZATION," AS DEFINED IN SEC. 112(G)(1)(B) AND
USED IN SEC. 112(B)(3), AND HENCE PRECLUDES RECOGNITION OF HIS GAIN "IN
EXCESS OF THE  ...  MONEY" HE RECEIVED. 

BUT WE CANNOT AGREE THAT SEC. 112(C)(1) AUTHORIZES THE ASSUMPTION,
CONTRARY TO THE ACTUAL FACTS, OF A "REORGANIZATION," AS DEFINED IN SEC.
112(G)(1)(B) AND USED IN SEC. 112(B)(3).  TO INDULGE SUCH AN ASSUMPITON
WOULD ACTUALLY BE TO PERMIT THE NEGATION OF CONGRESS' CAREFULLY
COMPOSED DEFINITION AND USE OF "REORGANIZATION" IN THOSE SUBSECTIONS,
AND TO PERMIT NONRECOGNITION OF GAINS ON WHAT ARE, IN REALITY, ONLY
SALES, THE FULL GAIN FROM WHICH IS IMMEDIATELY RECOGNIZED AND TAXED
UNDER THE GENERAL RULE OF SEC. 112(A).  TO THE CONTRARY, WE THINK THAT
AN ACTUAL "REORGANIZATION," AS DEFINED IN SEC. 112(G)(1) AND USED IN
SEC. 112(B)(3), MUST EXIST BEFORE SEC. 112(C)(1) CAN APPLY THERETO.  WE
ARE ALSO AGREED THAT SEC. 112(C)(1) CAN APPLY ONLY IF THE EXCHANGE
ACTUALLY CONSISTS BOTH OF "PROPERTY PERMITTED BY SUBSECTION (B)(1),
(2), (3), OR (5), OR SUBSECTION (1) OF SEC. 112  ...  TO BE RECEIVED
WITHOUT THE RECOGNITION OF GAIN" AND "OTHER PROPERTY OR MONEY."  AND WE
THINK IT IS CLEAR THAT THE "PROPERTY PERMITTED BY SEC.  112(B)(3)  ...
TO BE RECEIVED WITHOUT THE RECOGNITION OF GAIN" IS "STOCK OR SECURITIES
IN  ...  A PARTY TO A REORGANIZATION," "IN PURSUANCE OF A PLAN OF
REORGANIZATION," AND "FOR STOCK  ...  IN SUCH CORPORATION OR IN ANOTHER
CORPORATION WHICH IS A PARTY TO THE REORGANIZATION."  SINCE, AS IS
ADMITTED, NONE OF THE PROPERTY INVOLVED IN THIS EXCHANGE ACTUALLY MET
THAT DESCRIPTION, NONE OF IT WAS "PROPERTY PERMITTED BY SEC. 112(B)(3)
...  TO BE RECEIVED WITHOUT THE RECOGNITION OF GAIN," AND THEREFORE
SEC. 112(C)(1) DOES NOT APPLY TO POSTPONE RECOGNITION OF PETITIONER'S
GAIN FROM THE FOREMOST STOCK.  (FN8) 

THIS, OF COURSE, IS NOT TO SAY THAT SEC. 112(C)(1) IS WITHOUT PURPOSE
OR FUNCTION.  IT IS TO SAY ONLY THAT IT DOES NOT APPLY UNLESS SOME
PART, AT LEAST, OF THE PROPERTY EXCHANGED ACTUALLY MEETS THE PARTICULAR
DESCRIPTION CONTAINED IN THE APPLICABLE SECTION OR SUBSECTION OF THE
CODE.  BUT, INASMUCH AS SEC. 112(G)(1)(B) DEFINES "REORGANIZATION" TO
MEAN "THE ACQUISITION BY ONE CORPORATION, IN EXCHANGE SOLELY FOR ALL OR
A PART OF ITS VOTING STOCK, OF AT LEAST 80 PER CENTUM OF THE  ...
STOCK OF ANOTHER CORPORATION," AN EXCHANGE OF STOCK AND CASH -
APPROXIMATELY 30 PER CENTUM IN STOCK AND 70 PER CENTUM IN CASH - FOR
"AT LEAST 80 PER CENTUM OF THE  ...  STOCK OF ANOTHER CORPORATION"
CANNOT BE A "REORGANIZATION," AS DEFINED IN SEC. 112(G)(1)(B), NOR
HENCE OF "STOCK  ...  IN  ...  A PARTY TO A REORGANIZATION" AS REQUIRED
BY SEC. 112(B)(3), AND THUS SEC. 112(C)(1) CANNOT BE APPLICABLE TO
PETITIONER'S TRANSACTION.  THAT HOLDING DETERMINES THIS CASE AND IS ALL
WE DECIDE. 

COLLATERALLY, PETITIONER ARGUES THAT TAX "LOOPHOLES" WILL BE OPENED
UNDER OTHER SECTIONS OF THE CODE UNLESS HIS INTERPRETATION IS ADOPTED. 
THE COMMISSIONER ANSWERS THAT "LOOPHOLES" WILL BE OPENED UNDER THE
INTERPRETATION IS ADOPTED.  INASMUCH AS WHAT WE HAVE SAID DECIDES THE
CASE, WE HAVE NO NEED OR OCCASION TO FOLLOW THE PARTIES INTO, OR TO
DECIDE, COLLATERAL QUESTIONS.  AFFIRMED. 

FN1  UNLESS OTHERWISE STATED, ALL REFERENCES TO CODE SECTIONS ARE TO
THE INTERNAL REVENUE CODE OF 1939 (26 U.S.C., 1952 ED.). 

FN2  GROVER D. TURNBOW WILL BE REFERRED TO AS THOUGH HE WERE THE SOLE
PETITIONER, HIS WIFE BEING A PARTY ONLY BECAUSE A JOINT RETURN WAS
FILED. 

FN3  THE TAX COURT CONCLUDED "THAT BUT FOR THE CASH RECEIVED BY
PETITIONER  ...  THE EXCHANGE WOULD HAVE MET THE 'SOLELY' REQUIREMENT
OF SECTION 112(G)(1)(B) AND FALLEN WITHIN SECTION 112(B)(3).   HOWARD
V. COMMISSIONER, SUPRA AT 948.  THEREFORE, UNDER SECTION 112(C)(1) THE
GAIN TO PETITIONER MAY NOT BE RECOGNIZED IN AN AMOUNT IN EXCESS OF THE
CASH RECEIVED."  32 T.C., AT 652-653. 

FN4  IN THE HOWARD CASE, SUPRA, THE ACQUIRING CORPORATION OBTAINED
80.19% OF THE STOCK OF THE ACQUIRED CORPORATION BY TRANSFERRING TO THE
HOLDERS, INCLUDING PETITIONERS, A PART OF ITS VOTING STOCK IN EXCHANGE
FOR THEIR STOCK IN THE ACQUIRED CORPORATION, AND ACQUIRED THE REMAINING
19.81% OF THE ACQUIRED CORPORATION'S STOCK FROM OTHER HOLDERS FOR AN
AGREED PRICE IN CASH.  AS STATED, PETITIONERS RECEIVED ONLY STOCK AND
NO CASH.  THE COMMISSIONER DETERMINED THAT THE GAIN REALIZED BY
PETITIONERS ON THEIR EXCHANGE SOLELY OF STOCK FOR STOCK SHOULD BE
RECOGNIZED UNDER THE GENERAL RULE OF SEC. 112(A) OF THE CODE.  THE
SEVENTH CIRCUIT, FOLLOWING THIS COURT'S DECISION IN HELVERING V.
SOUTHWEST CONSOLIDATED CORP., 315 U.S. 194, HELD "THAT BECAUSE OF THE
CASH PAYMENT, THE TRANSACTION IN QUESTION FAILS TO MEET THE 'SOLELY'
REQUIREMENT OF SEC. 112(G)(1)(B) OF THE 1939 CODE.  HENCE IT DOES NOT
FALL WITHIN THE AMBIT OF SEC.  112(B)(3)."  238 F.2D, AT 947.  BUT,
TURNING TO AND RELYING ON SEC. 112(C)(1), IT ALSO HELD THAT "BUT FOR
THE CASH RECEIVED BY OTHERS THAN PETITIONERS IN EXCHANGE FOR 19.81% OF
THE COMMON STOCK OF BINKLEY, THE TRANSACTION WOULD HAVE MET THE
'SOLELY' REQUIREMENT OF SEC. 112(G)(1)(B) AND FALLEN WITHIN THE SCOPE
OF SEC. 112(B)(3).  TO THE EXTENT THAT 'BOOT' WAS RECEIVED, GAIN WOULD
BE RECOGNIZED UNDER OUR INTERPRETATION OF THE APPLICATION OF SEC.
112(C)(1).  HOWEVER, NO CASH WAS RECEIVED BY THE TAXPAYERS IN QUESTION,
AND AS A CONSEQUENCE THEREOF, NO GAIN AT THE TIME OF THE TRANSACTION
EVER AROSE."  238 F.2D, AT 948. 

FN5  THE VARIOUS EXCEPTIONS, RESPECTING EXCHANGES SOLELY IN KIND,
CONTEMPLATED BY SEC. 112(B), ARE THE FOLLOWING: 

SEC. 112(B)(1):  THE EXCHANGE OF TANGIBLE PROPERTY, HELD FOR
PRODUCTIVE USE OR INVESTMENT, "SOLELY" FOR PROPERTY "OF A LIKE KIND." 

SEC. 112(B)(2):  THE EXCHANGE OF STOCK "SOLELY" FOR STOCK IN THE SAME
CORPORATION. 

SEC. 112(B)(3):  THE EXCHANGE OF STOCK IN A PARTY TO A
"REORGANIZATION," AS DEFINED IN SEC. 112(G)(1), "SOLELY" FOR STOCK OR
SECURITIES IN THE SAME CORPORATION OR IN ANOTHER CORPORATION WHICH IS A
PARTY TO THE REORGANIZATION.    SEC. 112(B)(4):  THE EXCHANGE BY A
CORPORATION, A PARTY TO A REORGANIZATION, OF "PROPERTY," IN PURSUANCE
OF THE PLAN OF REORGANIZATION, "SOLELY" FOR STOCK OR SECURITIES IN
ANOTHER CORPORATION WHICH IS A PARTY TO THE REORGANIZATION. 

SEC. 112(B)(5):  THE TRANSFER OF PROPERTY TO A CONTROLLED CORPORATION
IN EXCHANGE "SOLELY" FOR STOCK OR SECURITIES OF THAT CORPORATION. 

SEC. 112(B)(6):  THE RECEIPT BY A CORPORATION OF PROPERTY IN COMPLETE
LIQUIDATION OF ANOTHER CORPORATION. 

SEE ALSO SEC. 112(1) WHICH PROVIDES A SIMILAR EXCEPTION IN RESPECT
TO:  THE EXCHANGE OF STOCK OR SECURITIES "SOLELY" FOR STOCK OR
SECURITIES OF A SUCCESSOR CORPORATION PURSUANT TO A COURT-APPROVED PLAN
IN DEBTOR OR INSOLVENCY PROCEEDINGS. 

FN6  SECTION 112(G)(1) PROVIDES: 

"(G)  DEFINITION OF REORGANIZATION.  AS USED IN THIS SECTION  ...  . 

"(1) THE TERM 'REORGANIZATION' MEANS (A) A STATUTORY MERGER OR
CONSOLIDATION, OR (B) THE ACQUISITION BY ONE CORPORATION, IN EXCHANGE
SOLELY FOR ALL OR A PART OF ITS VOTING STOCK, OF AT LEAST 80 PER CENTUM
OF THE VOTING STOCK AND AT LEAST 80 PER CENTUM OF THE TOTAL NUMBER OF
SHARES OF ALL OTHER CLASSES OF STOCK OF ANOTHER CORPORATION, OR (C) THE
ACQUISITION BY ONE CORPORATION, IN EXCHANGE SOLELY FOR ALL OR A PART OF
ITS VOTING STOCK, OF SUBSTANTIALLY ALL THE PROPERTIES OF ANOTHER
CORPORATION, BUT IN DETERMINING WHETHER THE EXCHANGE IS SOLELY FOR
VOTING STOCK THE ASSUMPTION BY THE ACQUIRING CORPORATION OF A LIABILITY
OF THE OTHER, OR THE FACT THAT PROPERTY ACQUIRED IS SUBJECT TO A
LIABILITY, SHALL BE DISREGARDED, OR (D) A TRANSFER BY A CORPORATION OF
ALL OR A PART OF ITS ASSETS TO ANOTHER CORPORATION IF IMMEDIATELY AFTER
THE TRANSFER THE TRANSFEROR OR ITS SHAREHOLDERS OR BOTH ARE IN CONTROL
OF THE CORPORATION TO WHICH THE ASSETS ARE TRANSFERRED, OR (E) A
RECAPITALIZATION, OR (F) A MERE CHANGE IN IDENTITY, FORM, OR PLACE OF
ORGANIZATION, HOWEVER EFFECTED." 

FN7  SEE NOTE 4. 

FN8  THE LEGISLATIVE HISTORY, MUCH OF WHICH IS SET FORTH IN THE
OPINION OF THE COURT OF APPEALS, THOUGH TENDING TO SUPPORT OUR
DECISION, IS INCONCLUSIVE, AND NO MORE CAN FAIRLY BE SAID OF THE
COMMISSIONER'S REGULATIONS.  SEE TREAS. REG. 118, SECS. 39.112(C)-1(E),
39.112(G)-4, 39.112(G)-1(C). 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 
..END :










VENUS V. UNITED STATES 368 U.S. 345 


NO. 75.  ARGUED DECEMBER 14, 1961 - DECIDED DECEMBER 18, 1961 - JUDGMENT
REVERSED WITH INSTRUCTIONS TO DISMISS THE INDICTMENT - REPORTED BELOW:
287 F.2D 304. 


VENUS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS REVERSED WITH INSTRUCTIONS TO DISMISS THE
INDICTMENT.  WARD V. UNITED STATES, 344 U.S. 924, REVERSING 195 F.2D
441 (C.A. 5TH CIR.).
..END :














DUTTON V. TAWES 368 U.S. 345 


NO. 533.  DECIDED DECEMBER 18, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 225 MD. 484, 171 A.2D 688. 


DUTTON ET AL. V. TAWES, GOVERNOR OF MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BAILEY V. PATTERSON 368 U.S. 346 


NO. - .  DECIDED DECEMBER 18, 1961 - REPORTED BELOW:  199 F. SUPP. 595. 


BAILEY ET AL. V. PATTERSON ET AL. 

ON MOTION FOR STAY INJUNCTION PENDING APPEAL. 

PER CURIAM. 

THIS IS A MOTION FOR AN INJUNCTION TO STAY THE PROSECUTION OF A
NUMBER OF CRIMINAL CASES IN THE COURTS OF MISSISSIPPI PENDING AN APPEAL
TO THIS COURT FROM THE JUDGMENT OF A THREE-JUDGE FEDERAL DISTRICT
COURT.  A FEDERAL INJUNCTION TO STAY STATE CRIMINAL PROCEEDINGS IS AN
EXTRAORDINARY REMEDY.   CF. DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157;
EX PARTE YOUNG, 209 U.S. 123.  IN ADDITION TO THE CONSIDERATIONS
NORMALLY ATTENDING AN APPLICATION FOR SUCH RELIEF, A SERIOUS QUESTION
OF STANDING IS PRESENTED ON THIS MOTION, IN THAT IT APPEARS THAT THE
MOVANTS THEMSELVES ARE NOT BEING PROSECUTED IN THE MISSISSIPPI COURTS. 
ON THE RECORD BEFORE US THE MOTION FOR A STAY INJUNCTION PENDING APPEAL
IS DENIED. 

MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER CONCUR IN THE DENIAL OF
A STAY SOLELY ON THE GROUND THAT THE THREE MOVANTS ARE NOT THEMSELVES
BEING PROSECUTED OR THREATENED WITH PROSECUTIONS IN MISSISSIPPI AND
THEY THEREFORE REACH NO OTHER QUESTIONS. 
..END :




CREST FINANCE CO., INC. V. UNITED STATES 368 U.S. 347 


NO. 325.  DECIDED DECEMBER 18, 1961 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  291 F.2D 1. 


CREST FINANCE CO., INC., V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

IN THE LIGHT OF THE SOLICITOR GENERAL'S CONCESSION THAT PETITIONER'S
LIEN IS CHOATE, AND THE COURT AGREEING THEREWITH, CERTIORARI IS
GRANTED, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT
OF APPEALS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

..END :













MOREHOUSE V. UNITED STATES 368 U.S. 348 


NO. 500.  DECIDED DECEMBER 18, 1961 - 194 F. SUPP. 940, AFFIRMED. 


MOREHOUSE ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEBRASKA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















RAFTER V. HAYS 368 U.S. 348 


NO. 527.  DECIDED DECEMBER 18, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


RAFTER V. HAYS ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















FEDERAL LAND BANK OF WICHITA V. BOARD OF COUNTY COMMISSIONERS OF KIOWA
COUNTY, KANSAS 368 U.S. 146 


NO. 25.  ARGUED OCTOBER 16, 1961 - DECIDED DECEMBER 11, 1961 - 187 KAN.
148, 354 P.2D 679, REVERSED. 


PETITIONER IS A FEDERAL LAND BANK ORGANIZED AS A FEDERAL
INSTRUMENTALITY UNDER THE FEDERAL FARM LOAN ACT, WHICH EXEMPTS SUCH
BANKS FROM ALL TAXATION "EXCEPT TAXES UPON REAL ESTATE"; AUTHORIZES
THEM TO ACQUIRE LAND IN SATISFACTION OF DEBTS; BUT FORBIDS THEM TO HOLD
ANY SUCH REAL ESTATE FOR LONGER THAN 5 YEARS, "EXCEPT WITH THE SPECIAL
APPROVAL OF THE FARM CREDIT ADMINISTRATION."  PETITIONER ACQUIRED A
CERTAIN FARM LAND IN KANSAS IN SATISFACTION OF A DEBT, SOLD IT FOR MORE
THAN THE AMOUNT OF THE DEBT, RETAINED A HALF INTEREST IN THE MINERAL
ESTATE, LEASED ITS OIL AND GAS RIGHTS AND BEGAN RECEIVING ROYALTIES
THEREFROM.  IT PAID TAXES ON ITS INTEREST IN THE MINERAL ESTATE, WHICH
WAS "REAL ESTATE" UNDER KANSAS LAW; BUT IT CHALLENGED THE RIGHT OF A
COUNTY TO LEVY PERSONAL PROPERTY TAXES ON ITS OIL AND GAS LEASE AND THE
ROYALTIES DERIVED THEREFROM UNDER A KANSAS STATUTE WHICH DECLARED THEM
TO BE "PERSONAL PROPERTY."  THE STATE SUPREME COURT HELD THAT CONGRESS
DID NOT INTEND TO EXEMPT THIS PERSONAL PROPERTY FROM TAXATION, BECAUSE
THE MINERAL ESTATE HAD BEEN HELD LONGER THAN 5 YEARS AND BECAUSE
HOLDING IT AFTER THE LOSS HAD BEEN RECOUPED DID NOT SERVE THE BANK'S
GOVERNMENTAL FUNCTION.  HELD:  THERE IS NO BASIS FOR CONCLUDING THAT
CONGRESS DID NOT INTEND THE IMMUNITY TO APPLY IN THIS CASE; AND THE
STATE PERSONAL PROPERTY TAX ON PETITIONER'S OIL AND GAS LEASE AND THE
ROYALTIES DERIVED THEREFROM ARE UNCONSTITUTIONAL BY VIRTUE OF THE
SUPREMACY CLAUSE OF THE CONSTITUTION.  PP. 147-156. 

(A)  THE HOLDING OF THE MINERAL ESTATE INVOLVED HERE WAS IN
FURTHERANCE OF THE BANK'S GOVERNMENTAL FUNCTION.  PP. 150-152. 

(B)  A REGULATION OF THE FARM CREDIT ADMINISTRATION SUPPLIED THE
REQUISITE PERMISSION TO HOLD THE MINERAL ESTATE LONGER THAN 5 YEARS. 
PP. 152-155. 

FEDERAL LAND BANK OF WICHITA V. BOARD OF COUNTY COMMISSIONERS OF KIOWA
COUNTY, KANSAS, ET AL. 

CERTIORARI TO THE SUPREME COURT OF KANSAS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

A POLITICAL SUBDIVISION OF A STATE HAS LEVIED A PERSONAL PROPERTY TAX
ON A FEDERAL INSTRUMENTALITY DESPITE A CLAIM OF IMMUNITY BY VIRTUE OF A
FEDERAL STATUTE. 

PETITIONER, THE FEDERAL LAND BANK OF WICHITA, ACQUIRED A MORTGAGE ON
REALTY IN KIOWA COUNTY, KANSAS, IN THE COURSE OF ITS BUSINESS AS A
FEDERAL INSTRUMENTALITY DULY ORGANIZED UNDER THE FEDERAL FARM LOAN
ACT.  (FN1)  UPON DEFAULT, FORECLOSURE, PURCHASE AT A SHERIFF'S SALE,
AND CONFIRMATION, PETITIONER BECAME THE OWNER OF THE LAND. 
SUBSEQUENTLY THE LAND WAS CONVEYED TO A THIRD PARTY, THE DEED RESERVING
AN UNDIVIDED ONE-HALF INTEREST IN THE MINERAL ESTATE.  BY THE TIME OF
THIS CONVEYANCE PETITIONER HAD RECOVERED THE ENTIRE LOSS OCCASIONED BY
THE DEFAULT ON THE MORTGAGE.  PETITIONER EXECUTED AN OIL AND GAS LEASE
ON THE RESERVED MINERAL ESTATE, AND THE DISCOVERY OF A GAS POOL IN THE
AREA ULTIMATELY LED TO THE PAYMENT OF ROYALTIES. 

A KANSAS STATUTE DECLARED THAT OIL AND GAS LEASES AND THE ROYALTIES
DERIVED THEREFROM WERE PERSONAL PROPERTY AND WERE SUBJECT TO TAXATION
BY THE COUNTIES.  (FN2)  PURSUANT TO THIS STATUTE, KIOWA COUNTY LEVIED
A PERSONAL PROPERTY TAX ON PETITIONER'S INTEREST IN THE OIL AND GAS
LEASE AND ON THE ROYALTIES FOR THE YEAR 1957. 

BY THE TIME THE TAX WAS LEVIED, PETITIONER HAD OWNED THE MINERAL
ESTATE SOME 14 YEARS.  THE STATUTE WHICH AUTHORIZED FEDERAL LAND BANKS
TO ACQUIRE MORTGAGED LANDS LIMITED THE PERIOD OF OWNERSHIP TO FIVE
YEARS UNLESS SPECIAL PERMISSION COULD BE OBTAINED FROM THE FARM CREDIT
ADMINISTRATION.  (FN3)  THAT AGENCY HAD PROMULGATED A REGULATION
GRANTING BLANKET PERMISSION TO ALL LAND BANKS TO HOLD MINERAL RIGHTS
LONGER THAN FIVE YEARS.  (FN4) 

PETITIONER SOUGHT AN INJUNCTION AGAINST COLLECTION OF THE PERSONAL
PROPERTY TAX IN THE STATE COURT, CLAIMING AN EXEMPTION UNDER 12 U.S.C.
SEC. 931, (FN5) WHICH PROVIDES, IN PART, THAT FEDERAL LAND BANKS "SHALL
BE EXEMPT FROM  ...  STATE, MUNICIPAL, AND LOCAL TAXATION, EXCEPT TAXES
UPON REAL ESTATE HELD  ...  UNDER THE PROVISIONS OF SECTION  ...
781."  (FN6)  THE INJUNCTION WAS DENIED.  ON APPEAL, THE SUPREME COURT
OF KANSAS AFFIRMED, (FN7) HOLDING THAT CONGRESS DID NOT INTEND SEC. 931
TO EXEMPT THIS PERSONAL PROPERTY FROM TAXATION BECAUSE THE MINERAL
ESTATE WAS BEING HELD LONGER THAN THE EXPRESS TIME LIMIT ESTABLISHED BY
CONGRESS AND BECAUSE THE HOLDING OF THE MINERAL ESTATE AFTER THE LOSS
HAD BEEN RECOUPED DID NOT SERVE THE GOVERNMENTAL FUNCTION ASSIGNED TO
THE FEDERAL LAND BANK.  THE COURT ALSO HELD THAT NO IMMUNITY COULD BE
IMPLIED.  CERTIORARI WAS GRANTED IN ORDER TO DETERMINE WHETHER THE
STATE HAD EXACTED A TAX FORBIDDEN BY THE SUPREMACY CLAUSE OF THE
CONSTITUTION.   (FN8)  365 U.S. 841. 

THE SUPREME COURT OF KANSAS CORRECTLY CONCEDES THAT A FEDERAL
INSTRUMENTALITY IS NOT SUBJECT TO THE PLENARY POWER OF THE STATES TO
TAX, (FN9) THAT THE CONGRESS HAS THE POWER TO DETERMINE, WITHIN THE
LIMITS OF THE CONSTITUTION, THE EXTENT THAT ITS INSTRUMENTALITIES SHALL
ENJOY IMMUNITY FROM STATE TAXATION, (FN10) THAT THE FEDERAL LAND BANK
IS A CONSTITUTIONALLY CREATED FEDERAL INSTRUMENTALITY, (FN11) AND THAT
CONGRESS HAS IMMUNIZED IT FROM PERSONAL PROPERTY TAXES ON ACTIVITIES IN
FURTHERANCE OF ITS LENDING FUNCTIONS.  (FN12) 

THE CONTROVERSY ARISES OVER THE HOLDING BY THE SUPREME COURT OF
KANSAS ON ALTERNATIVE GROUNDS THAT CONGRESS DID NOT INTEND SEC. 931 TO
APPLY TO OIL AND GAS LEASES IN THE CIRCUMSTANCES OF THIS CASE.  (FN13)

                         I. 

THE COURT FOUND THAT THE RETENTION OF THE MINERAL ESTATE BY THE
PETITIONER AFTER THE LOSS INCURRED UPON THE DEFAULT ON THE MORTGAGE HAD
BEEN RECOVERED DID NOT SERVE THE GOVERNMENTAL FUNCTION ASSIGNED TO THE
LAND BANK AND, AS CONGRESS INTENDED IMMUNITY TO APPLY ONLY TO PROTECT
THIS FUNCTION, SEC. 931 DID NOT APPLY HERE.  THE COURT DID NOT DEFINE
THE TYPE OF FUNCTION THAT PETITIONER DID PERFORM.  LEGITIMATE
ACTIVITIES OF GOVERNMENTS ARE SOMETIMES CLASSIFIED AS "GOVERNMENTAL" OR
"PROPRIETARY"; (FN14) HOWEVER, OUR DECISIONS HAVE MADE IT CLEAR THAT
THE FEDERAL GOVERNMENT PERFORMS NO "PROPRIETARY" FUNCTIONS.  (FN15)  IF
THE ENABLING ACT IS CONSTITUTIONAL AND IF THE INSTRUMENTALITY'S
ACTIVITY IS WITHIN THE AUTHORITY GRANTED BY THE ACT, A GOVERNMENTAL
FUNCTION IS BEING PERFORMED.  SINCE THE ACT ESTABLISHING THE FEDERAL
LAND BANKS HAS BEEN HELD TO BE CONSTITUTIONAL, SMITH V. KANSAS CITY
TITLE CO., 255 U.S. 180, WE NEED ONLY TO DETERMINE WHETHER THE
CHALLENGED OWNERSHIP COMES WITHIN THE PURVIEW OF THE STATUTE. 

THE PURPOSE OF THE FEDERAL FARM LOAN ACT AND ITS SUBSEQUENT
AMENDMENTS WAS TO PROVIDE LOANS FOR AGRICULTURAL PURPOSES AT THE LOWEST
POSSIBLE INTEREST RATES.  (FN16)  ONE METHOD OF KEEPING THE INTEREST
RATE LOW WAS TO AUTHORIZE THE FEDERAL LAND BANK TO MAKE A PROFIT TO BE
DISTRIBUTED TO THE SHAREHOLDERS IN THE FORM OF DIVIDENDS.  (FN17)
BECAUSE THE ASSOCIATIONS OF FARMER-BORROWERS WERE REQUIRED BY LAW TO BE
SHAREHOLDERS, (FN18) THE DISTRIBUTION OF DIVIDENDS EFFECTIVELY REDUCED
THE INTEREST RATES.  THIS PROFIT COULD BE EARNED IN TWO WAYS:  INTEREST
FROM THE LOANS ON MORTGAGED LANDS AND GAINS ON THE SALE OF LANDS
ACQUIRED UNDER THE PROVISIONS OF SEC. 781 FOURTH.  (FN19)  THE KANSAS
COURT CONSTRUES SEC. 781 FOURTHB) TO GRANT THE LIMITED POWER TO SELL
LAND ACQUIRED IN SATISFACTION OF A DEBT ONLY TO RECOUP THE LOSS
INCURRED UPON THE DEFAULT.  WE FIND NO SUCH LIMITATION EXPRESSED OR
IMPLIED.  THE LOANS ON THE MORTGAGES ARE LIMITED TO A PERCENTAGE OF THE
CURRENT VALUE OF THE LANDS THAT IS CONSIDERABLY LESS THAN FULL VALUE,
BUT THERE IS NO LIMIT ON THE AMOUNT OF THE SALE PRICE.  THE BANKS ARE
THEREFORE AUTHORIZED TO SELL LANDS ACQUIRED AFTER DEFAULT AT THE BEST
POSSIBLE PRICE, ABSORBING THE LOSSES IN THE RESERVE ACCOUNTS (FN20) AND
DISTRIBUTING THE PROFITS IN DIVIDENDS.  IT FOLLOWS THAT THE LAND BANKS
ARE NOT RESTRICTED TO A SALE PRICE MERELY SUFFICIENT TO RECOUP ANY
LOSSES.  THE RETENTION OF A MINERAL INTEREST MIGHT WELL BE A METHOD OF
INCREASING THE RECOVERY FROM LANDS ACQUIRED THROUGH MORTGAGE DEFAULTS. 
CONSEQUENTLY, WE FIND THAT THE HOLDING OF THE MINERAL ESTATE INVOLVED
HERE IS IN FURTHERANCE OF THE BANK'S GOVERNMENTAL FUNCTION. 

                                       II. 

THE ALTERNATIVE GROUND RELIED UPON BY THE SUPREME COURT OF KANSAS FOR
CONCLUDING THAT CONGRESS DID NOT INTEND TO CONFER IMMUNITY HERE RELATES
TO THE ASSERTED ILLEGALITY OF PETITIONER'S OWNERSHIP OF THE MINERAL
ESTATE.  SECTION 781 FOURTHB) LIMITS THE TIME THAT A FEDERAL LAND BANK
MAY OWN REALTY ACQUIRED AFTER DEFAULT ON THE MORTGAGE TO FIVE YEARS
UNLESS SPECIAL PERMISSION CAN BE OBTAINED FROM THE FARM CREDIT
ADMINISTRATION.  MINERAL ESTATES ARE REALTY UNDER THE STATE LAW, (FN21)
AND AT THE TIME OF THE TAX LEVY PETITIONER HAD OWNED THE MINERAL ESTATE
LONGER THAN FIVE YEARS, RELYING UPON THE FOLLOWING REGULATION
PROMULGATED BY THE FARM CREDIT ADMINISTRATION TO SUPPLY THE REQUISITE
SPECIAL PERMISSION: 

"HOLDING MINERAL RIGHTS FOR MORE THAN 5 YEARS.  IN CASES WHERE, IN
CONNECTION WITH A SALE OF BANK-OWNED REAL ESTATE, THE BANK HAS RETAINED
ROYALTY OR OTHER RIGHTS IN OR TO MINERALS, AND DESIRES TO HOLD SUCH
RIGHTS FOR A PERIOD IN EXCESS OF 5 YEARS, IT IS NOT CONSIDERED THAT THE
BANK HAS BOTH 'TITLE AND POSSESSION' OF REAL ESTATE WITHIN THE MEANING
OF SECTION 13 FOURTHB) OF THE FEDERAL FARM LOAN ACT (12 U.S.C. 781
FOURTHB)).  HOWEVER, RETENTION OF SUCH MINERALS AND MINERAL RIGHTS FOR
PERIODS IN EXCESS OF 5 YEARS, WHEN IN THE BANK'S OPINION IT IS IN THE
BANK'S INTEREST TO DO SO, HAS THE APPROVAL OF THE ADMINISTRATION." 
(FN22) 

ALTHOUGH THE REASONS ARE NOT ALTOGETHER CLEAR, THE COURT FOUND THIS
SPECIAL PERMISSION INVALID, CONCLUDING THAT PETITIONER IS, THEREFORE,
OWNING THE LAND WITHOUT AUTHORITY. 

FIRST, THE COURT FOUND "MUCH TO BE SAID" FOR THE TRIAL COURT'S
HOLDING THAT THE REGULATION WAS NOT EFFECTIVE BECAUSE THE FARM CREDIT
ADMINISTRATION COULD NOT DELEGATE THE POWER TO DETERMINE WHEN MINERAL
INTERESTS MIGHT BE RETAINED LONGER THAN FIVE YEARS TO THE FEDERAL LAND
BANKS, SO THAT NO "SPECIAL PERMISSION" HAD BEEN GIVEN.  ASSUMING THAT
THIS IS A HOLDING BY THE HIGHEST STATE COURT, WE ARE OF THE OPINION
THAT NO DELEGATION PROBLEM HAS BEEN PRESENTED.  ANALYTICALLY, THE POWER
GIVEN TO THE FARM CREDIT ADMINISTRATION BY SEC. 781 FOURTHB) IS A
LICENSING POWER, (FN23) NOT A RULE-MAKING, AN ADJUDICATING, OR AN
INVESTIGATING POWER.  THE REGULATION STATES THAT FEDERAL LAND BANKS
HAVE PERMISSION TO RETAIN MINERAL INTERESTS LONGER THAN FIVE YEARS. 
THIS IS AN EXERCISE OF THE POWER TO LICENSE, NOT A DELEGATION OF IT. 

THE SECOND GROUND FOR INVALIDATING THE PERMISSION GIVEN BY THE FARM
CREDIT ADMINISTRATION WAS THAT PERMISSION COULD NOT BE GIVEN UNLESS THE
HOLDING OF THE LAND WAS NECESSARY TO RECOUP THE LOSS ON THE DEFAULTED
MORTGAGE.  AS WE HAVE INDICATED, THE HOLDING OF A MINERAL ESTATE AFTER
THE BANK HAS RECOUPED ITS LOSS IS WITHIN THE AUTHORITY GRANTED BY
CONGRESS, AND THUS THE ADMINISTRATION HAD THE POWER TO GRANT THIS
PERMISSION. 

WHILE THE COURT BELOW DID CHALLENGE THE POWER OF THE FARM CREDIT
ADMINISTRATION TO GIVE THE PERMISSION REQUIRED BY SEC. 781 FOURTHB), IT
DID NOT CHALLENGE THE INTERPRETATION PLACED ON THAT STATUTE WHEN
BLANKET PERMISSION WAS GIVEN.  THE ADMINISTRATION INTERPRETED SEC. 781
FOURTHB) TO EXCLUDE MINERAL ESTATES.  (FN24)  WE, THEREFORE, ARE NOT
REQUIRED TO REVIEW THAT INTERPRETATION (FN25) OR TO EXAMINE THE
JURISDICTION, IF ANY, OF A STATE COURT TO REVIEW THE STATUTORY
CONSTRUCTION MADE BY A FEDERAL ADMINISTRATIVE AGENCY IN A COLLATERAL
ATTACK ON THE ISSUANCE OF A LICENSE. 

WHILE IT IS NOT NECESSARY TO THIS DECISION, IT IS AT LEAST OF
INTEREST THAT THERE HAVE BEEN EFFORTS IN SUCCESSIVE SESSIONS OF
CONGRESS TO AMEND THE ACT TO ACCOMPLISH THE RESULT ACHIEVED BY THE
SUPREME COURT OF KANSAS AND THAT THESE EFFORTS HAVE FAILED.  (FN26)
THE EXTENT OF THE MINERAL ESTATES OWNED BY FEDERAL LAND BANKS IS
CONSIDERABLE:  PETITIONER OWNS AN INTEREST IN APPROXIMATELY 283,000
ACRES; ALL LAND BANKS OWN AN INTEREST IN 9,999,000 ACRES.  (FN27)

         III. 

SINCE THERE ARE NO INFIRMITIES IN THE HOLDING OF THE MINERAL ESTATE
BY THE PETITIONER, THERE IS NO BASIS FOR IMPLYING THAT CONGRESS DID NOT
INTEND SEC. 931 TO PROVIDE IMMUNITY IN THIS CASE.  AS AN EXPRESS
IMMUNITY HAS BEEN CONFERRED, THERE IS NO NEED TO CONSIDER WHETHER THE
DOCTRINE OF IMPLIED IMMUNITY APPLIES.  WE CONCLUDE THAT THE STATE
PERSONAL PROPERTY TAX IMPOSED ON PETITIONER'S OIL AND GAS LEASE AND
UPON THE ROYALTIES DERIVED THEREFROM MUST FALL AS BEING
UNCONSTITUTIONAL BY VIRTUE OF THE SUPREMACY CLAUSE OF THE
CONSTITUTION.  REVERSED. 

FN1  THE ACT OF JULY 17, 1916, 39 STAT. 360, AS AMENDED, CURRENTLY
CODIFIED AT 12 U.S.C. SEC. 641 ET SEQ. 

FN2  GENERAL STATUTES OF KANSAS, 1949, SECS. 79-329 TO 79-334. 

"OIL AND GAS PROPERTY AS PERSONALTY.  THAT FOR THE PURPOSE OF
VALUATION AND TAXATION, ALL OIL AND GAS LEASES AND ALL OIL AND GAS
WELLS, PRODUCING OR CAPABLE OF PRODUCING OIL OR GAS IN PAYING
QUANTITIES, TOGETHER WITH ALL CASING, TUBING OR OTHER MATERIAL THEREIN,
AND ALL OTHER EQUIPMENT AND MATERIAL USED IN OPERATING THE OIL OR GAS
WELLS ARE HEREBY DECLARED TO BE PERSONAL PROPERTY AND SHALL BE ASSESSED
AND TAXED AS SUCH." 

FN3  "FOURTH.  ACQUIRING AND DISPOSING OF PROPERTY.  - TO ACQUIRE AND
DISPOSE OF: 

"(A)  SUCH PROPERTY, REAL OR PERSONAL, AS MAY BE NECESSARY OR
CONVENIENT FOR THE TRANSACTION OF ITS BUSINESS, WHICH, HOWEVER, MAY BE
IN PART LEASED TO OTHERS FOR REVENUE PURPOSES. 

"(B)  PARCELS OF LAND ACQUIRED IN SATISFACTION OF DEBTS OR PURCHASED
AT SALES UNDER JUDGMENTS, DECREES, OR MORTGAGES HELD BY IT.  BUT NO
SUCH BANK SHALL HOLD TITLE AND POSSESSION OF ANY REAL ESTATE PURCHASED
OR ACQUIRED TO SECURE ANY DEBT DUE TO IT, FOR A LONGER PERIOD THAN FIVE
YEARS, EXCEPT WITH THE SPECIAL APPROVAL OF THE FARM CREDIT
ADMINISTRATION IN WRITING."  12 U.S.C. SEC. 781 FOURTH, 39 STAT. 372,
SEC. 13. 

FN4  6 CFR SEC. 10.64.  SEE TEXT P. 153, INFRA. 

FN5  "EVERY FEDERAL LAND BANK  ...  INCLUDING THE CAPITAL AND RESERVE
OR SURPLUS THEREIN AND THE INCOME DERIVED THEREFROM, SHALL BE EXEMPT
FROM FEDERAL, STATE, MUNICIPAL, AND LOCAL TAXATION, EXCEPT TAXES UPON
REAL ESTATE HELD, PURCHASED, OR TAKEN BY SAID BANK  ...  UNDER THE
PROVISIONS OF SECTION ...  781 OF THIS TITLE  ...  ." 

FN6  SEE NOTE 3, SUPRA. 

FN7  187 KAN. 148, 354 P.2D 679. 

FN8  ARTICLE VI, CL. 2. 

FN9  MCCULLOCH V. MARYLAND, 4 WHEAT.  316; OSBORN V. BANK OF THE
UNITED STATES, 9 WHEAT.  738. 

FN10  CARSON V. ROANE-ANDERSON CO., 342 U.S. 232; CLEVELAND V. UNITED
STATES, 323 U.S. 329; MARICOPA COUNTY V. VALLEY NATIONAL BANK, 318 U.S.
357; FEDERAL LAND BANK OF ST. PAUL V. BISMARCK LUMBER CO., 314 U.S. 95;
PITTMAN V. HOME OWNERS' LOAN CORP., 308 U.S. 21; GRAVES V. NEW YORK EX
REL. O'KEEFE, 306 U.S. 466; DES MOINES NATIONAL BANK V. FAIRWEATHER,
263 U.S. 103; FIRST NATIONAL BANK V. ADAMS, 258 U.S. 362; OWENSBORO
NATIONAL BANK V. OWENSBORO, 173 U.S. 664.    FN11  SMITH V. KANSAS CITY
TITLE CO., 255 U.S. 180. 

FN12  FEDERAL LAND BANK V. BISMARCK LUMBER CO., 314 U.S. 95.  SEE
ALSO FEDERAL LAND BANK V. CROSLAND, 261 U.S. 374.  CF. FEDERAL LAND
BANK V. PRIDDY, 295 U.S. 229. 

FN13  OIL AND GAS LEASES ARE PERSONAL PROPERTY UNDER THE LAW OF
KANSAS, A CHARACTERIZATION ACCEPTED BY THE COURT AND ALL PARTIES
BELOW.  WE DO NOT NEED TO CONSIDER THE SITUATION WHEN OIL AND GAS
LEASES ARE CHARACTERIZED AS REAL PROPERTY UNDER STATE LAW.  SEE, E.G.,
STOKELY V. STATE, 149 MISS.  435, 115 SO. 563; TERRY V. HUMPHREYS, 27
N.M. 564, 203 P. 539; STEPHENS COUNTY V. MID-KANSAS OIL & GAS CO., 113
TEX. 160, 254 S.W. 290.  OTHER JURISDICTIONS CLASSIFY OIL AND GAS
LEASES AS PROFITS A' PRENDRE OR INCORPOREAL INTERESTS.  SEE GENERALLY
1A SUMMERS, OIL & GAS, SECS. 151-170.  CF. CONCEPTS OF THE NATURE OF
MINERAL INTERESTS DISCUSSED IN FOOTNOTE 21, INFRA. 

FN14  THESE GENERAL TERMS SERVE AS A BASIS FOR DETERMINING, INTER
ALIA, WHETHER THE DOCTRINE OF SOVEREIGN IMMUNITY PROTECTS A
MUNICIPALITY FROM LIABILITY FOR A TORT COMMITTED BY ONE OF ITS
SERVANTS, SEE, E.G., DALLAS V. CITY OF ST. LOUIS, 338 S.W.2D 39 (MO.);
CLARK V. SCHELD, 253 N.C. 732, 117 S.E.2D 838; OSBORN V. CITY OF AKRON,
171 OHIO ST. 361, 171 N.E.2D 492; WADE V. SALT LAKE CITY, 10 UTAH 2D
374, 353 P.2D 914; FRANCKE V. CITY OF WEST BEND, 12 WIS. 2D 574, 107
N.W.2D 500; 18 MCQUILLIN, MUNICIPAL CORPORATIONS, SECS.  53.01, 53.23,
53.24 (3D ED. 1950).  BUT CF. NEW YORK V. UNITED STATES, 326 U.S. 572. 

FN15  "THE ARGUMENT THAT THE LENDING FUNCTIONS OF THE FEDERAL LAND
BANKS ARE PROPRIETARY RATHER THAN GOVERNMENTAL MISCONCEIVES THE NATURE
OF THE FEDERAL GOVERNMENT WITH RESPECT TO EVERY FUNCTION WHICH IT
PERFORMS.  THE FEDERAL GOVERNMENT IS ONE OF DELEGATED POWERS, AND FROM
THAT IT NECESSARILY FOLLOWS THAT ANY CONSTITUTIONAL EXERCISE OF ITS
DELEGATED POWERS IS GOVERNMENTAL  ...  .  IT ALSO FOLLOWS THAT, WHEN
CONGRESS CONSTITUTIONALLY CREATES A CORPORATION THROUGH WHICH THE
FEDERAL GOVERNMENT LAWFULLY ACTS, THE ACTIVITIES OF SUCH CORPORATION
ARE GOVERNMENTAL (CITING CASES)."  FEDERAL LAND BANK V. BISMARCK LUMBER
CO., 314 U.S. 95, 102.  SEE PITTMAN V. HOME OWNERS' LOAN CORP., 308
U.S. 21, 32; GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466, 477. 

FN16  S. REP. NO. 144, 64TH CONG., 1ST SESS. 1, 2, 4, 7-9; H.R. REP.
NO. 630, 64TH CONG., 1ST SESS. 4, 5; H. DOC. NO. 494, 64TH CONG., 1ST
SESS., 8; 53 CONG. REC. 6696, 7021, 7023, 7024.  NOTHING IN THE
SUBSEQUENT AMENDMENTS HAS BEEN CALLED TO OUR ATTENTION WHICH MODIFIES
THIS PURPOSE.  SEE FAULKNER, AMERICAN ECONOMIC HISTORY, 388-390 (6TH
ED.  1949); BOGART AND KEMMERER, ECONOMIC HISTORY OF THE AMERICAN
PEOPLE, 698 (1944). 

FN17  FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229, 233.  THE ACT OF
JULY 17, 1916, 39 STAT. 360, SEC. 23, NOW 12 U.S.C. SEC. 901 ET SEQ.;
S. REP. NO. 144, 64TH CONG., 1ST SESS. 5.  H.R. REP. NO. 630, 64TH
CONG., 1ST SESS. 10. 

FN18  PERSONS ENGAGED IN AGRICULTURE ARE THE ONLY CLASS AUTHORIZED TO
BORROW FROM THE FEDERAL LAND BANKS.  TO OBTAIN A LOAN, APPLICATION IS
MADE FOR MEMBERSHIP IN AN ASSOCIATION COMPRISED SOLELY OF OTHER
BORROWERS.  THE PROSPECTIVE BORROWER IS REQUIRED TO SUBSCRIBE TO STOCK
IN THE ASSOCIATION IN PROPORTION TO THE LOAN HE DESIRES TO OBTAIN.  THE
ASSOCIATION APPROACHES THE FEDERAL LAND BANK, OBTAINS THE LOAN, AND
SUBSCRIBES TO STOCK IN THE FEDERAL LAND BANK IN PROPORTION TO THE
LOAN.  SEE 12 U.S.C. SECS. 721, 733.  CF. 12 U.S.C. SEC. 723. 

FN19  SEE NOTE 3, SUPRA. 

FN20  12 U.S.C. SEC. 901. 

FN21  WE TAKE THIS STATEMENT FROM THE OPINION BELOW.  WE NOTE THAT
PETITIONER HAS PAID REAL ESTATE TAXES ON THE MINERAL ESTATE.  MINERAL
INTERESTS RECEIVE VARYING CHARACTERIZATIONS AMONG THE STATES.  SOME
JURISDICTIONS RECOGNIZE A HORIZONTAL SERVERANCE OF THE FREEHOLD INTO
SURFACE AND MINERAL ESTATES; OTHERS TREAT THE MINERAL INTERESTS AS
INCORPOREAL HEREDITAMENTS.  COMPARE OHIO OIL CO. V. INDIANA, 177 U.S.
190, WITH STEPHENS COUNTY V. MID-KANSAS OIL & GAS CO., 113 TEX. 160,
166, 254 S.W. 290, 291.  CF. WILSON V. HOLM, 164 KAN. 229, 188 P.2D
899.  SEE MASTERSON, A 1952 SURVEY OF BASIC OIL AND GAS LAW, 6 SW. L.J.
1; WALKER, FEE SIMPLE OWNERSHIP OF OIL AND GAS IN TEXAS, 6 TEX. L. REV.
125. 

FN22  6 CFR SEC. 10.64. 

FN23  "THE WORD 'LICENSE,' MEANS PERMISSION, OR AUTHORITY; AND A
LICENSE TO DO ANY PARTICULAR THING, IS A PERMISSION OR AUTHORITY TO DO
THAT THING; AND IF GRANTED BY A PERSON HAVING POWER TO GRANT IT,
TRANSFERS TO THE GRANTEE THE RIGHT TO DO WHATEVER IT PURPORTS TO
AUTHORIZE.  IT CERTAINLY TRANSFERS TO HIM ALL THE RIGHT WHICH THE
GRANTOR CAN TRANSFER, TO DO WHAT IS WITHIN THE TERMS OF THE LICENSE." 
GIBBONS V. OGDEN, 9 WHEAT.  1, 213-214; SEE, E.G., SINNOT V. DAVENPORT,
22 HOW.  227, 240; SOUTHERN PAC. R. CO. V. OLYMPIAN DREDGING CO., 260
U.S. 205; PAN-ATLANTIC S.S. CORP. V. ATLANTIC C.L.R. CO., 353 U.S. 436;
ADMINISTRATIVE PROCEDURE ACT, SEC. 2(E), 5 U.S.C. SEC. 1001(E). 

FN24  6 CFR SEC. 10.64 QUOTED IN TEXT AT P. 153, SUPRA. 

FN25  SEE, E.G., SKIDMORE V. SWIFT & CO., 323 U.S. 134, 139-140;
UNEMPLOYMENT COMP.  COMM'N V. ARAGON, 329 U.S. 143, 153; ADMINISTRATIVE
PROCEDURE ACT, SEC. 10(E), 5 U.S.C.  SEC. 1009(E); SEE ALSO, E.G,
WITHERSPOON, ADMINISTRATIVE DISCRETION TO DETERMINE STATUTORY MEANING:
"THE HIGH ROAD," 35 TEX. L. REV. 63; IBID., "THE LOW ROAD," 38 TEX.  L.
REV. 392, 572; NATHANSON, ADMINISTRATIVE DISCRETION IN THE
INTERPRETATION OF STATUTES, 3 VAND.  L. REV. 470. 

FN26  SEE H.R. 9290, 76TH CONG., 3D SESS.; H.R. 667, 79TH CONG., 1ST
SESS.; H.R. 583, 80TH CONG., 1ST SESS.  SEE ALSO H.R. 1721 AND H.R.
2358, 80TH CONG., 1ST SESS; H.R. 1264, 81ST CONG., 1ST SESS.; S. 2904,
82D CONG., 2D SESS., AND H.R. 428, 82D CONG., 1ST SESS.; S. 75, H.R.
102 AND H.R. 1313, 83D CONG., 1ST SESS.; S. 538, 84TH CONG., 1ST SESS. 

FN27  PETITION FOR WRIT CERTIORARI, PP. 8, 9. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :
















GARNER V. LOUISIANA 368 U.S. 157 


NO. 26.  ARGUED OCTOBER 18-19, 1961.  - DECIDED DECEMBER 11, 1961.* -
REVERSED. 

*TOGETHER WITH NO. 27, BRISCOE ET AL. V. LOUISIANA, AND NO. 28,
HOSTON ET AL. V. LOUISIANA, ALSO ON CERTIORARI TO THE SAME COURT. 


IN LOUISIANA PLACES OF BUSINESS CATERING TO BOTH WHITE AND NEGRO
PATRONS, PETITIONERS, WHO ARE NEGROES, TOOK SEATS AT LUNCH COUNTERS
WHERE ONLY WHITE PERSONS CUSTOMARILY WERE SERVED, AND THEY REMAINED
QUIETLY IN THEIR SEATS AFTER BEING TOLD THAT THEY COULD NOT BE SERVED
THERE.  THEY MADE NO SPEECHES, CARRIED NO PLACARDS AND DID NOTHING ELSE
TO ATTRACT ATTENTION TO THEMSELVES, EXCEPT TO SIT AT THE LUNCH
COUNTERS.  THEY WERE NOT ASKED TO LEAVE BY THE PROPRIETORS OR THEIR
AGENTS; BUT THEY WERE ASKED TO LEAVE BY POLICE OFFICERS.  UPON FAILING
TO DO SO, THEY WERE ARRESTED AND CHARGED WITH "DISTURBING THE PEACE." 
THEY WERE CONVICTED IN A STATE COURT UNDER A STATE STATUTE WHICH
DEFINES "DISTURBING THE PEACE" AS THE DOING OF SPECIFIED VIOLENT,
BOISTEROUS OR DISRUPTIVE ACTS AND "ANY OTHER ACT IN SUCH A MANNER AS TO
UNREASONABLY DISTURB OR ALARM THE PUBLIC."  THEY WERE DENIED RELIEF BY
THE STATE SUPREME COURT.  THE RECORDS CONTAINED NO EVIDENCE TO SUPPORT
A FINDING THAT PETITIONERS HAD DISTURBED THE PEACE, EITHER BY OUTWARDLY
BOISTEROUS CONDUCT OR BY PASSIVE CONDUCT LIKELY TO CAUSE A PUBLIC
DISTURBANCE.  HELD: THE CONVICTIONS WERE SO TOTALLY DEVOID OF
EVIDENTIARY SUPPORT AS TO VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  THOMPSON V. CITY OF LOUISVILLE, 362 U.S.  199. 
PP. 158-174. 

(A)  THERE BEING NOTHING IN THE RECORD TO INDICATE THAT THE TRIAL
JUDGE TOOK JUDICIAL NOTICE OF ANYTHING, THESE CONVICTIONS CANNOT BE
SUSTAINED ON THE THEORY THAT HE TOOK JUDICIAL NOTICE OF THE GENERAL
SITUATION, INCLUDING THE LOCAL CUSTOM OF RACIAL SEGREGATION IN EATING
PLACES, AND CONCLUDED THAT PETITIONERS' PRESENCE AT THE LUNCH COUNTERS
MIGHT CAUSE A DISTURBANCE WHICH IT WAS THE DUTY OF THE POLICE TO
PREVENT.  P. 173. 

(B)  IN THE CIRCUMSTANCES OF THESE CASES, MERELY SITTING PEACEFULLY
IN PLACES WHERE CUSTOM DECREED THAT PETITIONERS SHOULD NOT SIT WAS NOT
EVIDENCE OF ANY CRIME, AND IT CANNOT BE SO CONSIDERED EITHER BY THE
POLICE OR BY THE COURTS.  P. 174. 

GARNER ET AL. V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THESE CASES COME TO US FROM THE SUPREME COURT OF LOUISIANA AND DRAW
IN QUESTION THE CONSTITUTIONALITY OF THE PETITIONERS' CONVICTIONS IN
THE 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE,
LOUISIANA, FOR THE CRIME OF DISTURBING THE PEACE.  THE PETITIONERS
(FN1) WERE BROUGHT TO TRIAL AND CONVICTED ON INFORMATIONS CHARGING THEM
WITH VIOLATING TITLE 14, ARTICLE 103(7), OF THE LOUISIANA CRIMINAL
CODE, 1942, IN THAT "THEY REFUSED TO MOVE FROM A CAFE COUNTER SEAT  ...
AFTER HAVING BEEN ORDERED TO DO SO BY THE AGENT OF THE ESTABLISHMENT;
SAID CONDUCT BEING IN SUCH MANNER AS TO UNREASONABLY AND FORESEEABLY
DISTURB THE PUBLIC  ...  ."  IN ACCORDANCE WITH STATE PROCEDURE,
PETITIONERS SOUGHT POST-CONVICTION REVIEW IN THE SUPREME COURT OF
LOUISIANA THROUGH WRITS OF CERTIORARI, MANDAMUS AND PROHIBITION.  THEY
CONTENDED THAT THE STATE HAD PRESENTED NO EVIDENCE TO SUPPORT THE
FINDINGS OF STATUTORY VIOLATION, AND THAT THEIR CONVICTIONS WERE
INVALID ON OTHER CONSTITUTIONAL GROUNDS, BOTH STATE AND FEDERAL. 
RELIEF WAS DENIED.  FEDERAL QUESTIONS WERE PROPERLY RAISED AND
PRESERVED THROUGHOUT THE PROCEEDINGS, AND TIMELY PETITIONS FOR
CERTIORARI FILED IN THIS COURT WERE GRANTED.  365 U.S. 840.  THE UNITED
STATES GOVERNMENT APPEARED AS AMICUS CURIAE URGING, ON VARIOUS GROUNDS,
THAT THE CONVICTIONS BE REVERSED.  AN AMICUS BRIEF ALSO URGING REVERSAL
WAS FILED BY THE COMMITTEE ON THE BILL OF RIGHTS OF THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK. 

IN OUR VIEW OF THESE CASES AND FOR OUR DISPOSITION OF THEM, THE
SLIGHT VARIANCE IN THE FACTS OF THE THREE CASES IS IMMATERIAL. 
ALTHOUGH THE ALLEGED OFFENSES DID NOT OCCUR ON THE SAME DAY OR IN THE
SAME ESTABLISHMENT, THE PETITIONERS WERE ALL ARRESTED BY THE SAME
OFFICERS, CHARGED WITH COMMISSION OF THE SAME ACTS, REPRESENTED BY THE
SAME COUNSEL, TRIED AND CONVICTED BY THE SAME JUDGE, AND GIVEN
IDENTICAL SENTENCES.  BECAUSE OF THIS FACTUAL SIMILARITY AND THE
IDENTICAL NATURE OF THE PROBLEMS INVOLVED IN GRANTING CERTIORARI, WE
ORDERED THE CASES CONSOLIDATED FOR ARGUMENT AND NOW DEEM IT SUFFICIENT
TO FILE ONE OPINION.  IN ADDITION, AS THE FACTS ARE SIMPLE, WE THINK IT
SUFFICIENT TO RECITE BUT ONE OF THE CASES IN DETAIL, NOTING WHATEVER
SLIGHT VARIATIONS EXIST IN THE OTHERS. 

IN NO. 28, HOSTON ET AL. V. LOUISIANA, JANNETTE HOSTON, A STUDENT AT
SOUTHERN UNIVERSITY, AND SIX OF HER COLLEAGUES TOOK SEATS AT A LUNCH
COUNTER IN KRESS' DEPARTMENT STORE IN BATON ROUGE, LOUISIANA, ON MARCH
29, 1960.  (FN2)  IN KRESS', AS IN SITMAN'S DRUG STORE IN NO. 26 WHERE
NEGROES ARE CONSIDERED "VERY GOOD CUSTOMERS," A SEGREGATION POLICY IS
MAINTAINED ONLY WITH REGARD TO THE SERVICE OF FOOD.  (FN3)  HENCE,
ALTHOUGH BOTH STORES SOLICIT BUSINESS FROM WHITE AND NEGRO PATRONS, AND
THE LATTER AS WELL AS THE FORMER MAY MAKE PURCHASES IN THE GENERAL
MERCHANDISE SECTIONS WITHOUT DISCRIMINATION, (FN4) THE STORES DO NOT
PROVIDE INTEGRATED SERVICE AT THEIR LUNCH COUNTERS. 

THE MANAGER AT KRESS' STORE, WHO WAS ALSO SEATED AT THE LUNCH
COUNTER, TOLD THE WAITRESS TO ADVISE THE STUDENTS THAT THEY COULD BE
SERVED AT THE COUNTER ACROSS THE AISLE, WHICH SHE DID.  THE PETITIONERS
MADE NO RESPONSE AND REMAINED QUIETLY IN THEIR SEATS.  AFTER THE
MANAGER HAD FINISHED HIS LUNCH, HE TELEPHONED THE POLICE AND TOLD THEM
THAT "SOME NEGROES WERE SEATED AT THE COUNTER RESERVED FOR WHITES." 
THE POLICE ARRIVED AT THE STORE AND ORDERED THE STUDENTS TO LEAVE.  THE
ARRESTING OFFICER TESTIFIED THAT THE PETITIONERS DID AND SAID NOTHING
EXCEPT THAT ONE OF THEM STATED THAT SHE WOULD LIKE A GLASS OF ICED TEA,
BUT THAT HE BELIEVED THEY WERE DISTURBING THE PEACE "BY SITTING
THERE."  WHEN NONE OF THE PETITIONERS SHOWED SIGNS OF LEAVING THEIR
SEATS, THEY WERE PLACED UNDER ARREST AND TAKEN TO THE POLICE STATION. 
THEY WERE THEN CHARGED WITH VIOLATING TITLE 14, ARTICLE 103(7), OF THE
LOUISIANA CRIMINAL CODE, A SECTION OF THE LOUISIANA DISTURBANCE OF THE
PEACE STATUTE. 

BEFORE TRIAL, THE PETITIONERS MOVED FOR A BILL OF PARTICULARS AS TO
THE DETAILS OF THEIR ALLEGEDLY DISRUPTIVE BEHAVIOR AND TO QUASH THE
INFORMATIONS FOR FAILURE TO STATE ANY UNLAWFUL ACTS OF WHICH THEY COULD
BE CONSTITUTIONALLY CONVICTED.  THE MOTIONS WERE DENIED, AND THE
PETITIONERS APPLIED TO THE SUPREME COURT OF LOUISIANA FOR WRITS OF
CERTIORARI, PROHIBITION AND MANDAMUS TO REVIEW THE RULINGS.  THE
SUPREME COURT DENIED THE WRITS ON THE GROUND THAT AN ADEQUATE REMEDY
WAS AVAILABLE THROUGH RESORT TO ITS SUPERVISORY JURISDICTION IN THE
EVENT OF A CONVICTION.  THE PETITIONERS WERE THEN TRIED AND CONVICTED,
(FN5) AND SENTENCED TO IMPRISONMENT FOR FOUR MONTHS, THREE MONTHS OF
WHICH WOULD BE SUSPENDED UPON THE PAYMENT OF A FINE OF $100. 
SUBSEQUENT TO THEIR CONVICTIONS, THE SUPREME COURT, IN DENYING RELIEF
ON APPEAL, ISSUED THE FOLLOWING ORAL OPINION IN EACH CASE. 

"WRITS REFUSED. 

"THIS COURT IS WITHOUT JURISDICTION TO REVIEW FACTS IN CRIMINAL
CASES.  SEE ART. 7, SEC. 10, LA. CONSTITUTION OF 1921. 

"THE RULINGS OF THE DISTRICT JUDGE ON MATTERS OF LAW ARE NOT
ERRONEOUS.  SEE TOWN OF PONCHATOULA VS. BATES, 173 LA., 824, 138 SO.,
851."  (FN6) 

BEFORE THIS COURT, PETITIONERS AND THE AMICI HAVE PRESENTED A NUMBER
OF QUESTIONS CLAIMING DEPRIVATION OF RIGHTS GUARANTEED TO PETITIONERS
BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.  (FN7)  THE PETITIONERS CONTEND: 

(A)  THE DECISION BELOW AFFIRMS A CRIMINAL CONVICTION BASED UPON NO
EVIDENCE OF GUILT AND, THEREFORE, DEPRIVES THEM OF DUE PROCESS OF LAW
AS DEFINED IN THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199. 

(B)  THE PETITIONERS WERE CONVICTED OF A CRIME UNDER THE PROVISIONS
OF A STATE STATUTE WHICH, AS APPLIED TO THEIR ACTS, IS SO VAGUE,
INDEFINITE AND UNCERTAIN AS TO OFFEND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT. 

(C)  THE DECISIONS BELOW CONFLICT WITH THE FOURTEENTH AMENDMENT'S
GUARANTEE OF FREEDOM OF EXPRESSION. 

(D)  THE DECISION BELOW CONFLICTS WITH PRIOR DECISIONS OF THIS COURT
WHICH CONDEMN RACIALLY DISCRIMINATORY ADMINISTRATION OF STATE CRIMINAL
LAWS IN CONTRAVENTION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT. 

WITH REGARD TO ARGUMENT (D), THE PETITIONERS AND THE NEW YORK
COMMITTEE ON THE BILL OF RIGHTS CONTEND THAT THE PARTICIPATION OF THE
POLICE AND THE JUDICIARY TO ENFORCE A STATE CUSTOM OF SEGREGATION
RESULTED IN THE USE OF "STATE ACTION" AND WAS THEREFORE PLAINLY
VIOLATIVE OF THE FOURTEENTH AMENDMENT.  THE PETITIONERS ALSO URGE THAT
EVEN IF THESE CASES CONTAIN A RELEVANT COMPONENT OF "PRIVATE ACTION,"
THAT ACTION IS SUBSTANTIALLY INFECTED WITH STATE POWER AND THEREBY
REMAINS STATE ACTION FOR PURPOSES OF THE FOURTEENTH AMENDMENT.  (FN8) 

IN THE VIEW WE TAKE OF THE CASES WE FIND IT UNNECESSARY TO REACH THE
BROADER CONSTITUTIONAL QUESTIONS PRESENTED, AND IN ACCORDANCE WITH OUR
PRACTICE NOT TO FORMULATE A RULE OF CONSTITUTIONAL LAW BROADER THAN IS
REQUIRED BY THE PRECISE FACTS PRESENTED IN THE RECORD, FOR THE REASONS
HEREINAFTER STATED, WE HOLD THAT THE CONVICTIONS IN THESE CASES ARE SO
TOTALLY DEVOID OF EVIDENTIARY SUPPORT AS TO RENDER THEM
UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.   (FN9)  AS IN THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199,
OUR INQUIRY DOES NOT TURN ON A QUESTION OF SUFFICIENCY OF EVIDENCE TO
SUPPORT A CONVICTION, BUT ON WHETHER THESE CONVICTIONS REST UPON ANY
EVIDENCE WHICH WOULD SUPPORT A FINDING THAT THE PETITIONERS' ACTS
CAUSED A DISTURBANCE OF THE PEACE.   IN ADDITION, WE CANNOT BE
CONCERNED WITH WHETHER THE EVIDENCE PROVES THE COMMISSION OF SOME OTHER
CRIME, FOR IT IS AS MUCH A DENIAL OF DUE PROCESS TO SEND AN ACCUSED TO
PRISON FOLLOWING CONVICTION FOR A CHARGE THAT WAS NEVER MADE AS IT IS
TO CONVICT HIM UPON A CHARGE FOR WHICH THERE IS NO EVIDENCE TO SUPPORT
THAT CONVICTION.  (FN10) 

THE RESPONDENT, IN BOTH ITS BRIEF AND ITS ARGUMENT TO THIS COURT,
IMPLIED THAT THE EVIDENCE PROVES THE ELEMENTS OF A CRIMINAL TRESPASS. 
IN ORAL ARGUMENT IT CONTENDED THAT THE REAL QUESTION HERE "IS WHETHER
OR NOT A PRIVATE PROPERTY OWNER AND PROPRIETOR OF A PRIVATE
ESTABLISHMENT HAS THE RIGHT TO SERVE ONLY THOSE WHOM HE CHOOSES AND TO
REFUSE TO SERVE THOSE WHOM HE DESIRES NOT TO SERVE FOR WHATEVER REASON
HE MAY DETERMINE."  (FN11)  THAT THIS IS NOT A QUESTION PRESENTED BY
THE RECORDS IN THESE CASES SEEMS TOO APPARENT FOR DEBATE.  EVEN
ASSUMING IT WERE THE QUESTION, HOWEVER, WHICH IT CLEARLY IS NOT, THESE
CONVICTIONS COULD NOT STAND FOR THE REASON STATED IN COLE V. ARKANSAS,
333 U.S. 196.  (FN12) 

UNDER OUR VIEW OF THESE CASES, OUR TASK IS TO DETERMINE WHETHER THERE
IS ANY EVIDENCE IN THE RECORDS TO SHOW THAT THE PETITIONERS, BY THEIR
ACTIONS AT THE LUNCH COUNTERS IN THE BUSINESS ESTABLISHMENTS INVOLVED,
VIOLATED TITLE 14, ARTICLE 103(7), OF THE LOUISIANA CRIMINAL CODE.  AT
THE TIME OF PETITIONERS' ACTS, ARTICLE 103 PROVIDED: 

"DISTURBING THE PEACE IS THE DOING OF ANY OF THE FOLLOWING IN SUCH A
MANNER AS WOULD FORESEEABLY DISTURB OR ALARM THE PUBLIC: 

"(1)  ENGAGING IN A FISTIC ENCOUNTER; OR: 

"(2)  USING OF ANY UNNECESSARILY LOUD, OFFENSIVE, OR INSULTING
LANGUAGE; OR: 

"(3)  APPEARING IN AN INTOXICATED CONDITION; OR: 

"(4)  ENGAGING IN ANY ACT IN A VIOLENT AND TUMULTUOUS MANNER BY ANY
THREE OR MORE PERSONS; OR: 

"(5)  HOLDING OF AN UNLAWFUL ASSEMBLY; OR: 

"(6)  INTERRUPTION OF ANY LAWFUL ASSEMBLY OF PEOPLE; OR: 

"(7)  COMMISSION OF ANY OTHER ACT IN SUCH A MANNER AS TO UNREASONABLY
DISTURB OR ALARM THE PUBLIC." 

                                        I. 

OUR INITIAL INQUIRY IS NECESSARILY TO DETERMINE THE TYPE OF CONDUCT
PROSCRIBED BY THIS STATUTE AND THE ELEMENTS OF GUILT WHICH THE EVIDENCE
MUST PROVE TO SUPPORT A CRIMINAL CONVICTION THEREUNDER.  FIRST, IT IS
EVIDENT FROM A READING OF THE STATUTE THAT THE ACCUSED MUST CONDUCT
HIMSELF IN A MANNER THAT WOULD "FORESEEABLY DISTURB OR ALARM THE
PUBLIC."  IN ADDITION, WHEN A PERSON IS CHARGED WITH A VIOLATION OF
PARAGRAPH 7, AN EARLIER VERSION OF WHICH WAS APTLY DESCRIBED BY THE
SUPREME COURT OF LOUISIANA AS "THE GENERAL PORTION OF THE STATUTE WHICH
DOES NOT DEFINE THE 'CONDUCT OR ACTS' THE MEMBERS OF THE LEGISLATURE
HAD IN MIND" (STATE V. SANFORD, 203 LA. 961, 967, 14 SO. 2D 778, 780),
(FN13) IT WOULD ALSO SEEM APPARENT FROM THE WORDS OF THE STATUTE THAT
THE ACTS, WHATEVER THEY MIGHT BE, MUST BE DONE "IN SUCH A MANNER AS TO
ACTUALLY UNREASONABLY DISTURB OR ALARM THE PUBLIC."  HOWEVER, BECAUSE
WE FIND THE RECORDS BARREN OF ANY EVIDENCE THAT WOULD SUPPORT A FINDING
THAT THE PETITIONERS' CONDUCT WOULD EVEN "FORESEEABLY" HAVE DISTURBED
THE PUBLIC, WE NEED NOT CONSIDER WHETHER THE STATUTE ALSO REQUIRES THE
ACTS TO BE DONE IN A MANNER AS ACTUALLY TO DISTURB THE PEACE. 

WE OF COURSE ARE BOUND BY A STATE'S INTERPRETATION OF ITS OWN STATUTE
AND WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE STATE'S WHEN IT
BECOMES NECESSARY TO ANALYZE THE EVIDENCE FOR THE PURPOSE OF
DETERMINING WHETHER THAT EVIDENCE SUPPORTS THE FINDINGS OF A STATE
COURT.  HENCE, WE MUST LOOK TO LOUISIANA FOR GUIDANCE IN THE MEANING OF
THE PHRASE "FORESEEABLY DISTURB OR ALARM THE PUBLIC" IN ORDER TO
DETERMINE THE TYPE OF CONDUCT PROSCRIBED BY LA. REV. STAT., 1950, SEC.
14:103(7). 

THE SUPREME COURT OF LOUISIANA HAS HAD OCCASION IN THE PAST, IN
INTERPRETING THE PREDECESSOR OF ARTICLE 103, (FN14) TO GIVE CONTENT TO
THESE WORDS, AND IT IS EVIDENT FROM THE COURT'S PRIOR TREATMENT OF THEM
THAT THEY WERE NOT INTENDED TO EMBRACE PEACEFUL CONDUCT.  ON THE
CONTRARY, IT IS PLAIN THAT UNDER THE COURT'S APPLICATION OF THE STATUTE
THESE WORDS ENCOMPASS ONLY CONDUCT WHICH IS VIOLENT OR BOISTEROUS IN
ITSELF, OR WHICH IS PROVOCATIVE IN THE SENSE THAT IT INDUCES A
FORESEEABLE PHYSICAL DISTURBANCE.  (FN15)  IN STATE V. SANFORD, 203 LA.
961, 14 SO. 2D 778, THE EVIDENCE SHOWED THAT THIRTY JEHOVAH'S WITNESSES
APPROACHED A LOUISIANA TOWN FOR THE PURPOSE OF DISTRIBUTING RELIGIOUS
TRACTS AND PERSUADING THE PUBLIC TO MAKE CONTRIBUTIONS TO THEIR CAUSE. 
THE WITNESSES WERE WARNED BY THE MAYOR AND POLICE OFFICERS THAT "THEIR
PRESENCE AND ACTIVITIES WOULD CAUSE TROUBLE AMONG THE POPULATION AND
ASKED THEM TO STAY AWAY FROM THE TOWN  ...  ."  203 LA., AT 964, 14 SO.
2D, AT 779.  THE WITNESSES FAILED TO YIELD TO THE WARNING AND PROCEEDED
ON THEIR MISSION.  THE TRIAL COURT FOUND THAT THE ACTS OF THE WITNESSES
IN ENTERING THE TOWN AND STOPPING PASSERS-BY IN THE CROWDED STREET
"MIGHT OR WOULD TEND TO INCITE RIOTOUS AND DISORDERLY CONDUCT."  203
LA., AT 965, 14 SO. 2D, AT 779.  THE SUPREME COURT OF LOUISIANA SET
ASIDE CONVICTIONS FOR BREACH OF THE PEACE, HOLDING THAT THE DEFENDANTS
DID NOT COMMIT ANY UNLAWFUL ACT OR PURSUE ANY DISORDERLY COURSE OF
CONDUCT WHICH WOULD TEND TO DISTURB THE PEACE, THUS, IN EFFECT, THAT
PEACEFUL CONDUCT, EVEN THOUGH CONCEIVABLY OFFENSIVE TO ANOTHER CLASS OF
THE PUBLIC, IS NOT CONDUCT WHICH MAY BE PROSCRIBED BY LOUISIANA'S
DISTURBANCE OF THE PEACE STATUTE WITHOUT EVIDENCE THAT THE ACTOR
CONDUCTED HIMSELF IN SOME OUTWARDLY UNRULY MANNER.    THE CONCLUSION OF
THE HIGHEST LOUISIANA COURT THAT THE BREACH OF THE PEACE STATUTE DOES
NOT REACH PEACEFUL AND ORDERLY CONDUCT IS SUBSTANTIATED BY THE
CONCLUSION DRAWN FROM READING THE STATUTE AS A WHOLE.  THE CATCH-ALL
PROVISION UNDER WHICH THE PETITIONERS WERE TRIED AND CONVICTED FOLLOWS
AN ENUMERATION OF SIX SPECIFIC OFFENSES, EACH OF WHICH DESCRIBES
OVERTLY TUMULTUOUS OR DISRUPTIVE BEHAVIOR.  IT WOULD THEREFORE NORMALLY
BE INTERPRETED IN THE LIGHT OF THE PRECEDING SECTIONS AS AN EFFORT TO
COVER OTHER FORMS OF VIOLENCE OR LOUD AND BOISTEROUS CONDUCT NOT
ALREADY LISTED.  (FN16) WE DO NOT MEAN TO IMPLY THAT AN EJUSDEM GENERIS
READING OF THE STATUTE IS CONSTITUTIONALLY COMPELLED TO THE EXCLUSION
OF OTHER REASONABLE INTERPRETATIONS, (FN17) BUT WE DO NOTE THAT HERE
SUCH A READING IS CONSISTENT WITH THE LOUISIANA SUPREME COURT'S
APPLICATION IN SANFORD.  (FN18) 

FURTHER EVIDENCE THAT ARTICLE 103(7) WAS NOT DESIGNED TO ENCOMPASS
THE PETITIONERS' CONDUCT IN THESE CASES HAS BEEN SUPPLIED BY THE
LOUISIANA LEGISLATURE.  SHORTLY AFTER THE EVENTS FOR WHICH THE
PETITIONERS WERE ARRESTED TOOK PLACE, THE LEGISLATURE AMENDED ITS
DISTURBANCE OF THE PEACE STATUTE IN AN OBVIOUS ATTEMPT TO REACH THE
TYPE OF ACTIVITY INVOLVED IN THESE CASES.  (FN19)  THE CONTRAST BETWEEN
THE LANGUAGE OF THE PRESENT STATUTE AND THE ONE UNDER WHICH THE
PETITIONERS WERE CONVICTED CONFIRMS THE INTERPRETATION GIVEN THE
GENERAL TERMS OF THE LATTER BY THE SUPREME COURT IN STATE V. SANFORD
AND THE NATURAL MEANING OF THE WORDS USED IN ARTICLE 103. 

WE ARE AWARE THAT THE LOUISIANA COURTS HAVE THE FINAL AUTHORITY TO
INTERPRET AND, WHERE THEY SEE FIT, TO REINTERPRET THAT STATE'S
LEGISLATION.  HOWEVER, WE HAVE SEEN NO INDICATION THAT THE LOUISIANA
SUPREME COURT HAS CHANGED ITS SANFORD INTERPRETATION OF LA. REV. STAT.,
1950, SEC. 14:103(7), AND WE WILL NOT INFER THAT AN INFERIOR LOUISIANA
COURT INTENDED TO OVERRULE A LONG-STANDING AND REASONABLE
INTERPRETATION OF A STATE STATUTE BY THAT STATE'S HIGHEST COURT.  OUR
RELUCTANCE SO TO INFER IS SUPPORTED, MOREOVER, BY THE FACT THAT STATE
V. SANFORD WAS ARGUED BY THE PETITIONERS TO BOTH THE TRIAL COURT AND
THE SUPREME COURT, AND THAT NEITHER COURT MENTIONED IN ITS OPINION THAT
SANFORD WAS NO LONGER TO BE THE LAW IN LOUISIANA. 

WE THINK THAT THE ABOVE DISCUSSION WOULD GIVE AMPLE SUPPORT TO A
CONCLUSION THAT LOUISIANA LAW REQUIRES A FINDING OF OUTWARDLY
BOISTEROUS OR UNRULY CONDUCT IN ORDER TO CHARGE A DEFENDANT WITH
"FORESEEABLY" DISTURBING OR ALARMING THE PUBLIC.  HOWEVER, BECAUSE THIS
CASE COMES TO US FROM A STATE COURT AND NECESSITATES A DELICATE
INVOLVEMENT IN FEDERAL-STATE RELATIONS, WE ARE WILLING TO ASSUME WITH
THE RESPONDENT THAT THE LOUISIANA COURTS MIGHT CONSTRUE THE STATUTE
MORE BROADLY TO ENCOMPASS THE TRADITIONAL COMMON-LAW CONCEPT OF
DISTURBING THE PEACE.  THUS CONSTRUED, IT MIGHT PERMIT THE POLICE TO
PREVENT AN IMMINENT PUBLIC COMMOTION EVEN THOUGH CAUSED BY PEACEFUL AND
ORDERLY CONDUCT ON THE PART OF THE ACCUSED.  CF. CANTWELL V.
CONNECTICUT, 310 U.S. 296, 308.  WE THEREFORE TREAT THESE CASES AS
THOUGH EVIDENCE OF SUCH IMMINENT DANGER, AS WELL AS EVIDENCE OF A
DEFENDANT'S ACTIVE CONDUCT WHICH IS OUTWARDLY PROVOCATIVE, COULD
SUPPORT A FINDING THAT THE ACTS MIGHT "FORESEEABLY DISTURB OR ALARM THE
PUBLIC" UNDER THE LOUISIANA STATUTE. 

              II. 

HAVING DETERMINED WHAT EVIDENCE IS NECESSARY TO SUPPORT A FINDING OF
DISTURBING THE PEACE UNDER LOUISIANA LAW, THE ULTIMATE QUESTION, AS IN
THOMPSON V. CITY OF LOUISVILLE, SUPRA, IS WHETHER THE RECORDS IN THESE
CASES CONTAIN ANY SUCH EVIDENCE.  WITH APPROPRIATE NOTATIONS TO THE
SLIGHT DIFFERENCES IN TESTIMONY IN THE OTHER TWO CASES, WE AGAIN TURN
TO THE RECORD IN NO. 28.  (FN20)  THE MANAGER OF THE DEPARTMENT STORE
IN WHICH THE LUNCH COUNTER WAS LOCATED TESTIFIED THAT AFTER THE
STUDENTS HAD TAKEN THEIR SEATS AT THE "WHITE LUNCH COUNTER" WHERE HE
WAS ALSO OCCUPYING A SEAT, HE ADVISED THE WAITRESS ON DUTY TO OFFER THE
PETITIONERS SERVICE AT THE COUNTER ACROSS THE AISLE WHICH SERVED
NEGROES.  THE PETITIONERS, HOWEVER, AFTER BEING "ADVISED THAT THEY
WOULD BE SERVED AT THE OTHER COUNTER," REMAINED IN THEIR SEATS, AND THE
MANAGER CONTINUED EATING HIS LUNCH AT THE SAME COUNTER.  IN NO. 26,
WHERE THERE WERE NO FACILITIES TO SERVE COLORED PERSONS, THE
PETITIONERS WERE MERELY TOLD THAT THEY COULDN'T BE SERVED, BUT WERE
NEVER EVEN ASKED TO MOVE.  IN NO. 27, A WAITRESS TESTIFIED THAT THE
PETITIONERS WERE MERELY TOLD THAT THEY WOULD HAVE TO GO "TO THE OTHER
SIDE TO BE SERVED."  THE PETITIONERS NOT ONLY MADE NO SPEECHES, THEY
DID NOT EVEN SPEAK TO ANYONE EXCEPT TO ORDER FOOD; THEY CARRIED NO
PLACARDS, AND DID NOTHING, BEYOND THEIR MERE PRESENCE AT THE LUNCH
COUNTER, TO ATTRACT ATTENTION TO THEMSELVES OR TO OTHERS.  IN NONE OF
THE CASES WAS THERE ANY TESTIMONY THAT THE PETITIONERS WERE TOLD THAT
THEIR MERE PRESENCE WAS CAUSING, OR WAS LIKELY TO CAUSE, A DISTURBANCE
OF THE PEACE, NOR THAT THE PETITIONERS WERE EVER ASKED TO LEAVE THE
COUNTERS OR THE ESTABLISHMENTS BY ANYONE CONNECTED WITH THE STORES. 

THE MANAGER IN NO. 28 TESTIFIED THAT AFTER FINISHING HIS MEAL HE WENT
TO THE TELEPHONE AND CALLED THE POLICE DEPARTMENT, ADVISING THEM THAT
NEGROES WERE IN HIS STORE SITTING AT THE LUNCH COUNTER RESERVED FOR
WHITES.  THIS IS THE ONLY CASE IN WHICH "THE OWNER OR HIS AGENT"
NOTIFIED THE POLICE OF THE PETITIONER'S PRESENCE AT THE LUNCH COUNTER,
AND EVEN HERE THE MANAGER GAVE NO INDICATION TO THE OFFICERS THAT HE
FEARED ANY DISTURBANCE OR THAT HE HAD RECEIVED ANY COMPLAINT CONCERNING
THE PETITIONERS' PRESENCE.  IN NO. 27, A WAITRESS TESTIFIED THAT A BUS
DRIVER SITTING IN THE RESTAURANT NOTIFIED THE POLICE THAT "THERE WERE
SEVERAL COLORED PEOPLE SITTING AT THE LUNCH COUNTER."  (FN21) IN NO.
26, THE ARRESTING OFFICERS WERE NOT SUMMONED TO THE DRUGSTORE BY ANYONE
EVEN REMOTELY CONNECTED WITH SITMAN'S BUT, RATHER, BY A CALL FROM AN
OFFICER ON HIS "BEAT" WHO HAD OBSERVED THE PETITIONERS SITTING QUIETLY
AT THE LUNCH COUNTER. 

ALTHOUGH THE MANAGER OF KRESS' DEPARTMENT STORE TESTIFIED THAT THE
ONLY CONDUCT WHICH HE CONSIDERED DISRUPTIVE WAS THE PETITIONERS' MERE
PRESENCE AT THE COUNTER, HE DID STATE THAT HE CALLED THE POLICE BECAUSE
HE "FEARED THAT SOME DISTURBANCE MIGHT OCCUR."  (FN22)  HOWEVER, HIS
FEAR IS COMPLETELY UNSUBSTANTIATED BY THE RECORD.  THE MANAGER
CONTINUED EATING HIS LUNCH IN AN APPARENTLY LEISURELY MANNER AT THE
SAME COUNTER AT WHICH THE PETITIONERS WERE SITTING BEFORE CALLING THE
POLICE.  MOREOVER, NOT ONLY DID HE FAIL TO GIVE THE PETITIONERS ANY
WARNING OF HIS ALLEGED "FEAR," (FN23) BUT HE SPECIFICALLY TESTIFIED TO
THE FACT THAT THE PETITIONERS WERE NEVER ASKED TO MOVE OR TO LEAVE THE
STORE.  NOR DID THE WITNESS ELABORATE ON THE BASIS OF HIS FEAR EXCEPT
TO STATE THAT "IT ISN'T CUSTOMARY FOR THE TWO RACES TO SIT TOGETHER AND
EAT TOGETHER."  (FN24)  IN ADDITION, THERE IS NO EVIDENCE THAT THIS
ALLEGED FEAR WAS EVER COMMUNICATED TO THE ARRESTING OFFICERS, EITHER AT
THE TIME THE MANAGER MADE THE INITIAL CALL TO POLICE HEADQUARTERS OR
WHEN THE POLICE ARRIVED AT THE STORE.  UNDER THESE CIRCUMSTANCES, THE
MANAGER'S GENERAL STATEMENT GIVES NO SUPPORT FOR THE CONVICTIONS WITHIN
THE MEANING OF THOMPSON V. CITY OF LOUISVILLE, SUPRA. 

SUBSEQUENT TO THE MANAGER'S NOTIFICATION, THE POLICE ARRIVED AT THE
STORE AND, WITHOUT CONSULTING THE MANAGER OR ANYONE ELSE ON THE
PREMISES, WENT DIRECTLY TO CONFRONT THE PETITIONERS.  AN OFFICER ASKED
THE PETITIONERS TO LEAVE THE COUNTER BECAUSE "THEY WERE DISTURBING THE
PEACE AND VIOLATING THE LAW BY SITTING THERE."  ONE OF THE STUDENTS
STATED THAT SHE WISHED TO GET A GLASS OF ICED TEA, BUT SHE AND HER
FRIENDS WERE TOLD, AGAIN BY THE POLICE, THAT THEY WERE DISTURBING THE
PEACE BY SITTING AT A COUNTER RESERVED FOR WHITES AND THAT THEY WOULD
HAVE TO LEAVE.  WHEN THE PETITIONERS CONTINUED TO OCCUPY THE SEATS,
THEY WERE ARRESTED, AS THE OFFICER TESTIFIED, FOR DISTURBING THE PEACE
"BY SITTING THERE" "BECAUSE THAT PLACE WAS RESERVED FOR WHITE PEOPLE." 
THE SAME OFFICER TESTIFIED THAT THE PETITIONERS HAD DONE NOTHING OTHER
THAN TAKE SEATS AT THAT PARTICULAR LUNCH COUNTER WHICH HE CONSIDERED TO
BE A BREACH OF THE PEACE.  (FN25) 

THE RESPONDENT DISCUSSES AT LENGTH THE HISTORY OF RACE RELATIONS AND
THE HIGH DEGREE OF RACIAL SEGREGATION WHICH EXISTS THROUGHOUT THE
SOUTH.  ALTHOUGH THERE IS NO REFERENCE TO SUCH FACTS IN THE RECORDS,
THE RESPONDENT ARGUES THAT THE TRIAL COURT TOOK JUDICIAL NOTICE OF THE
GENERAL SITUATION, AS HE MAY DO UNDER LOUISIANA LAW, (FN26) AND THAT IT
THEREFORE BECAME APPARENT TO THE COURT THAT THE PETITIONERS' PRESENCE
AT THE LUNCH COUNTERS MIGHT CAUSE A DISTURBANCE WHICH IT WAS THE DUTY
OF THE POLICE TO PREVENT.  THERE IS NOTHING IN THE RECORDS TO INDICATE
THAT THE TRIAL JUDGE DID IN FACT TAKE JUDICIAL NOTICE OF ANYTHING.  TO
EXTEND THE DOCTRINE OF JUDICIAL NOTICE TO THE LENGTH PRESSED BY THE
RESPONDENT WOULD REQUIRE US TO ALLOW THE PROSECUTION TO DO THROUGH
ARGUMENT TO THIS COURT WHAT IT IS REQUIRED BY DUE PROCESS TO DO AT THE
TRIAL, AND WOULD BE "TO TURN THE DOCTRINE INTO A PRETEXT FOR DISPENSING
WITH A TRIAL."  OHIO BELL TELEPHONE CO. V. PUBLIC UTILITIES COMM'N, 301
U.S. 292, 302.  FURTHERMORE, UNLESS AN ACCUSED IS INFORMED AT THE TRIAL
OF THE FACTS OF WHICH THE COURT IS TAKING JUDICIAL NOTICE, NOT ONLY
DOES HE NOT KNOW UPON WHAT EVIDENCE HE IS BEING CONVICTED, BUT, IN
ADDITION, HE IS DEPRIVED OF ANY OPPORTUNITY TO CHALLENGE THE DEDUCTIONS
DRAWN FROM SUCH NOTICE OR TO DISPUTE THE NOTORIETY OR TRUTH OF THE
FACTS ALLEGEDLY RELIED UPON.  MOREOVER, THERE IS NO WAY BY WHICH AN
APPELLATE COURT MAY REVIEW THE FACTS AND LAW OF A CASE AND
INTELLIGENTLY DECIDE WHETHER THE FINDINGS OF THE LOWER COURT ARE
SUPPORTED BY THE EVIDENCE WHERE THAT EVIDENCE IS UNKNOWN.  SUCH AN
ASSUMPTION WOULD BE A DENIAL OF DUE PROCESS.  OHIO BELL, SUPRA. 

THUS, HAVING SHOWN THAT THESE RECORDS CONTAIN NO EVIDENCE TO SUPPORT
A FINDING THAT PETITIONERS DISTURBED THE PEACE, EITHER BY OUTWARDLY
BOISTEROUS CONDUCT OR BY PASSIVE CONDUCT LIKELY TO CAUSE A PUBLIC
DISTURBANCE, WE HOLD THAT THESE CONVICTIONS VIOLATED PETITIONERS'
RIGHTS TO DUE PROCESS OF LAW GUARANTEED THEM BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.  THE UNDISPUTED EVIDENCE
SHOWS THAT THE POLICE WHO ARRESTED THE PETITIONERS WERE LEFT WITH
NOTHING TO SUPPORT THEIR ACTIONS EXCEPT THEIR OWN OPINIONS THAT IT WAS
A BREACH OF THE PEACE FOR THE PETITIONERS TO SIT PEACEFULLY IN A PLACE
WHERE CUSTOM DECREED THEY SHOULD NOT SIT.  (FN27)  SUCH ACTIVITY, IN
THE CIRCUMSTANCES OF THESE CASES, IS NOT EVIDENCE OF ANY CRIME AND
CANNOT BE SO CONSIDERED EITHER BY THE POLICE OR BY THE COURTS.  THE
JUDGMENTS ARE REVERSED. 

FN1  UNLESS OTHERWISE INDICATED, THE TERM "PETITIONERS" REFERS TO THE
PETITIONERS IN ALL THREE CASES, NOS. 26, 27 AND 28. 

FN2  IN NO. 26, GARNER ET AL. V. LOUISIANA, THE PETITIONERS, TWO
NEGRO STUDENTS AT SOUTHERN UNIVERSITY, TOOK SEATS AT THE LUNCH COUNTER
OF SITMAN'S DRUG STORE IN BATON ROUGE, AND IN NO. 27, BRISCOE ET AL. V.
LOUISIANA, THE LUNCH COUNTER AT WHICH THE SEVEN NEGRO STUDENTS SOUGHT
SERVICE WAS IN THE RESTAURANT SECTION OF THE GREYHOUND BUS TERMINAL IN
BATON ROUGE. 

FN3  THE SAME IS TRUE, OF COURSE, WITH REGARD TO THE BUS TERMINAL IN
NO. 27.  THE TERMINAL ITSELF CATERS TO BOTH RACES, BUT SEPARATE
FACILITIES ARE MAINTAINED FOR THE SERVICE OF FOOD. 

FN4  IN NO. 26, ONE OF THE PETITIONERS HAD PURCHASED AN UMBRELLA IN
THE DRUGSTORE JUST PRIOR TO TAKING HIS SEAT AT THE LUNCH COUNTER, AND
HAD ENCOUNTERED NO DIFFICULTY IN MAKING THE PURCHASE. 

FN5  ALTHOUGH THE PROBLEM WAS EXACTLY THE SAME IN ALL THREE CASES,
THE TRIAL JUDGE APPEARED TO USE DIFFERENT FORMULAE FOR CONCLUDING
PETITIONERS' GUILT IN EACH OPINION.  IN NO. 26, THE ACTS OF THE
PETITIONERS WERE SAID TO BE "AN ACT DONE IN A MANNER CALCULATED TO, AND
ACTUALLY DID, UNREASONABLY DISTURB AND ALARM THE PUBLIC."  IN NO. 27,
THE VERY SAME CONDUCT WAS SAID TO BE "AN ACT ON THEIR PART AS WOULD
UNREASONABLY DISTURB AND ALARM THE PUBLIC."  IN NO. 28, IT WAS DECLARED
THAT THE CONDUCT "FORESEEABLY COULD ALARM AND DISTURB THE PUBLIC." 

FN6  THE OPINIONS OF THE SUPREME COURT OF LOUISIANA ARE NOT
OFFICIALLY REPORTED. 

UNDER ART. 7, SEC. 10, OF THE LOUISIANA CONSTITUTION, THE APPELLATE
JURISDICTION OF THE SUPREME COURT OVER CRIMINAL CASES EXTENDS ONLY TO
QUESTIONS OF LAW, AND THEN ONLY WHERE, INTER ALIA, A FINE EXCEEDING
THREE HUNDRED DOLLARS OR IMPRISONMENT EXCEEDING SIX MONTHS HAS BEEN
IMPOSED.  SEE STATE V. DI VINCENTI, 232 LA. 13, 93 SO. 2D 676; STATE V.
GASPARD, 222 LA. 222, 62 SO. 2D 281; STATE V. PRICE, 164 LA. 376, 113
SO. 882.  THE LOUISIANA SUPREME COURT HAS HELD THAT A QUESTION OF LAW
IS PRESENTED, AND THAT A CASE IS THUS REVIEWABLE, WHERE THE CONTENTION
IS THAT THERE IS NO EVIDENCE TO SUPPORT AN ELEMENT OF THE CRIME
CHARGED.  STATE V. DANIELS, 236 LA. 998, 109 SO. 2D 896; STATE V.
BROWN, 224 LA. 480, 70 SO. 2D 96; STATE V. SBISA, 232 LA. 961, 95 SO.
2D 619, AND CASES CITED AT N. 6, 232 LA., AT 969-970, 95 SO. 2D, AT
622.  SEE COMMENT, 19 LA. L. REV.  843 (1959).  DESPITE THE COURT'S
PURPORTED REVIEW OF THE QUESTIONS OF LAW IN THESE CASES, THE DEGREE OF
PUNISHMENT INFLICTED WOULD DEPRIVE THE COURT OF APPELLATE JURISDICTION
UNDER ART. 7, SEC. 10.  HOWEVER, THE SUPREME COURT ALSO HAS A GENERAL
SUPERVISORY JURISDICTION, EXERCISED ONLY IN THE SOUND DISCRETION OF THE
COURT (SEE STATE V. MORGAN, 204 LA. 499, 502, 15 SO. 2D 866, 867), OVER
ALL INFERIOR COURTS UNDER ART. 7, SEC. 10; IT APPEARS THAT THIS IS THE
PROVISION WHICH THE PETITIONERS ATTEMPTED TO INVOKE WITH THEIR
EXTRAORDINARY WRITS IN THESE CASES.  SEE ALSO ART. 7, SEC. 2, OF THE
LOUISIANA CONSTITUTION. 

FN7  IN ADDITION TO THE PETITIONERS' CONTENTIONS THE UNITED STATES
ARGUES THAT IN NO. 27 THE PETITIONERS' ARRESTS AND CONVICTIONS DEPRIVED
THEM OF THEIR RIGHTS UNDER THE INTERSTATE COMMERCE ACT TO SERVICE ON A
NONDISCRIMINATORY BASIS IN A RESTAURANT OF A BUS TERMINAL OPERATED AS
PART OF INTERSTATE COMMERCE.  CF. BOYNTON V. VIRGINIA, 364 U.S. 454. 
FN8  THE GOVERNMENT, AS WELL AS PETITIONERS, POINTS OUT THAT IN
ADDITION TO STATE STATUTES REQUIRING SEGREGATION IN SPECIFIC SITUATIONS
IN LOUISIANA, THE LOUISIANA LEGISLATURE IN 1960 ADOPTED THE FOLLOWING
PREFACE TO A JOINT RESOLUTION CONCERNING THE POSSIBLE INTEGRATION OF
ANY TAX-SUPPORTED FACILITY IN THE STATE: 

"WHEREAS, LOUISIANA HAS ALWAYS MAINTAINED A POLICY OF SEGREGATION OF
THE RACES, AND: 

"WHEREAS, IT IS THE INTENTION OF THE CITIZENS OF THIS SOVEREIGN STATE
THAT SUCH A POLICY BE CONTINUED  ...  ."  ACT NO. 630 OF 1960, TO AMEND
ARTICLE X OF THE LOUISIANA CONSTITUTION.    FN9  SEE THOMPSON V. CITY
OF LOUISVILLE, 362 U.S. 199. 

FN10  CF. COLE V. ARKANSAS, 333 U.S. 196, 201.  SEE THOMPSON V. CITY
OF LOUISVILLE, 362 U.S. 199, 206, AND THE CASES CITED AT FOOTNOTE 13. 

FN11  COUNSEL FOR THE RESPONDENT ADMITTED ON ORAL ARGUMENT THAT THE
LOUISIANA TRESPASS STATUTE IN FORCE AT THE TIME OF THE PETITIONERS'
ARRESTS WOULD PROBABLY NOT HAVE APPLIED TO THESE FACTS.  APPARENTLY,
THE LOUISIANA LEGISLATURE AGREED, FOR, IN 1960, SUBSEQUENT TO
PETITIONERS' ACTS, THE LEGISLATURE PASSED A NEW CRIMINAL TRESPASS
STATUTE (LA. REV. STAT., 1950, SEC. 14:63.3 (1960 SUPP.)), WHICH
READS: 

"NO PERSON SHALL WITHOUT AUTHORITY OF LAWS GO INTO OR UPON  ...  ANY
STRUCTURE  ...  WHICH BELONGS TO ANOTHER  ...  AFTER HAVING BEEN
FORBIDDEN TO DO SO  ...  BY ANY OWNER, LESSEE, OR CUSTODIAN OF THE
PROPERTY OR BY ANY OTHER AUTHORIZED PERSON  ...  ." 

WE EXPRESS NO OPINION WHETHER, ON THE FACTS OF THESE CASES, THE
PETITIONERS' CONDUCT WOULD HAVE BEEN UNLAWFUL UNDER THIS STATUTE. 

FN12  THE SUPREME COURT OF LOUISIANA HAS ALSO HELD THAT AN ACCUSED
MAY NOT BE CONVICTED ON PLEADINGS WHICH FAIL TO STATE THE SPECIFIC
CRIME WITH WHICH HE IS CHARGED.  STATE V. MORGAN, 204 LA. 499, 15 SO.
2D 866 (1943). 

FN13  WE EXPRESS NO VIEW AS TO THE CONSTITUTIONALITY OF THE
PETITIONERS' CONVICTIONS AS ATTACKED BY THEIR ARGUMENT THAT THE STATUTE
(SEC. 103(7)) IS SO VAGUE AND UNCERTAIN, WITH ITS RESULTING LACK OF
NOTICE OF WHAT CONDUCT THE LEGISLATURE INTENDED TO MAKE CRIMINAL, AS TO
VIOLATE DUE PROCESS.  CF. LANZETTA V. NEW JERSEY, 306 U.S. 451; MUSSER
V. UTAH, 333 U.S. 95; WINTERS V. NEW YORK, 333 U.S. 507. 

FN14  THE PREDECESSOR OF TITLE 14, SECTION 103, WAS ACT NO. 227 OF
1934, WHICH PROVIDED, INTER ALIA, "THAT ANY PERSON WHO SHALL GO INTO
ANY PUBLIC PLACE, OR INTO OR NEAR ANY PRIVATE HOUSE  ... AND WHO SHALL
SHOUT, SWEAR, EXPOSE HIMSELF, DISCHARGE A FIREARM  ...  OR WHO SHALL DO
ANY OTHER ACT, IN A MANNER CALCULATED TO DISTURB OR ALARM THE
INHABITANTS THEREOF, OR PERSONS PRESENT  ...  " SHOULD BE ADJUDGED
GUILTY OF BREACHING THE PEACE.  IN STATE V. SANFORD, 203 LA. 961, 14
SO. 2D 778, DISCUSSED IMMEDIATELY FOLLOWING IN THE TEXT, THE DEFENDANTS
WERE CHARGED, AS WERE THE PETITIONERS IN THE CASES AT BAR, UNDER THE
GENERAL, CATCH-ALL PROVISION. 

FN15  SEE TOWN OF PONCHATOULA V. BATES, 173 LA. 824, 138 SO. 851
(DICTUM). 

FN16  SEE 2 SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION, SECS.
4909-4910 (HORACK ED.  1943). 

FN17  SUCH AN INTERPRETATION HAS NOT BEEN MADE WHERE THERE WAS
EVIDENCE OF A CONTRARY LEGISLATIVE INTENT OR JUDICIAL READING.  UNITED
STATES V. ALPERS, 338 U.S. 680, 682-683; GOOCH V. UNITED STATES, 297
U.S. 124, 128; HELVERING V. STOCKHOLMS ENSKILDA BANK, 293 U.S. 84, 88
89. 

FN18  SEE ALSO TOWN OF PONCHATOULA V. BATES, SUPRA, NOTE 15. 

FN19  LA. REV. STAT., 1950, SEC. 14:103.1 (1960 SUPP.), NOW READS, IN
PERTINENT PART, AS FOLLOWS: 

"A.  WHOEVER WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR UNDER
CIRCUMSTANCES SUCH THAT A BREACH OF THE PEACE MAY BE OCCASIONED
THEREBY: 

 *         *         *         *         * 

"(4)  REFUSES TO LEAVE THE PREMISES OF ANOTHER WHEN REQUESTED SO TO
DO BY ANY OWNER, LESSEE, OR ANY EMPLOYEE THEREOF, SHALL BE GUILTY OF
DISTURBING THE PEACE." 

FN20  IN ALL THREE CASES THE PROSECUTION CALLED AS WITNESSES ONLY THE
ARRESTING OFFICER AND AN EMPLOYEE FROM THE RESTAURANT IN QUESTION.  IN
NONE OF THE CASES DID THE PETITIONERS THEMSELVES TESTIFY OR INTRODUCE
ANY WITNESSES IN THEIR DEFENSE. 

FN21  THERE IS SOME INCONSISTENCY IN THE RECORD, NOT MATERIAL TO OUR
DISPOSITION OF THE CASE (SEE NO. 28), AS TO WHO CALLED THE POLICE; A
POLICE OFFICER MADE A STATEMENT BASED ON HEARSAY THAT THE DESK SERGEANT
WAS CALLED BY "SOME WOMAN." 

FN22  AS NOTED PREVIOUSLY, THIS IS THE ONLY CASE IN WHICH A
REPRESENTATIVE OF THE RESTAURANT CALLED THE POLICE.  IN ADDITION, THIS
IS THE ONLY CASE IN WHICH THERE IS ANYTHING IN THE RECORD CONCERNING
THE POSSIBILITY OF A DISTURBANCE, AND EVEN HERE IT IS LIMITED TO THE
MANAGER'S SINGLE STATEMENT NOTED ABOVE. 

FN23  OF COURSE, EVEN SUCH A WARNING WAS NOT SUFFICIENT EVIDENCE TO
SUPPORT A FINDING OF BREACH OF THE PEACE IN STATE V. SANFORD. 

FN24  COMPARE THE BASIS FOR THE STATE ACTION IN BUCHANAN V. WARLEY,
245 U.S. 60, AND COOPER V. AARON, 358 U.S. 1. 

FN25  THE EVIDENCE IN THE RECORDS IN NOS. 26 AND 27 IS SIMILAR.  EACH
WITNESS CALLED BY THE STATE TESTIFIED THAT THE PETITIONERS WERE
ARRESTED SOLELY BECAUSE THEY WERE NEGROES SITTING AT A WHITE LUNCH
COUNTER. 

FN26  LA. REV. STAT., 1950, SEC. 15:422 PROVIDES THAT LOUISIANA
COURTS MAY TAKE JUDICIAL NOTICE OF "SOCIAL AND RACIAL CONDITIONS
PREVAILING IN THE STATE."  SEE STATE V. BESSA ET AL., 115 LA. 259, 38
SO. 985. 

FN27  COMPARE THE EVIDENCE CONTAINED IN THE RECORDS IN TERMINIELLO V.
CHICAGO, 337 U.S. 1; AND IN FEINER V. NEW YORK, 340 U.S. 315. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE JUDGMENT. 

WHETHER STATE STATUTES ARE TO BE CONSTRUED ONE WAY OR ANOTHER IS A
QUESTION OF STATE LAW, FINAL DECISION OF WHICH RESTS, OF COURSE, WITH
THE COURTS OF THE STATE.  WHEN AS HERE THOSE COURTS HAVE NOT SPELLED
OUT THE MEANING OF A STATUTE, THIS COURT MUST EXTRAPOLATE ITS ALLOWABLE
MEANING AND ATTRIBUTE THAT TO THE HIGHEST COURT OF THE STATE.  WE MUST
DO SO IN A MANNER THAT AFFORDS THE WIDEST LATITUDE TO STATE LEGISLATIVE
POWER CONSISTENT WITH THE UNITED STATES CONSTITUTION. 

SINCE LA. REV. STAT., 1950, SEC. 14:103 IS CONCEDEDLY A STATUTE AIMED
AT "DISTURBING THE PEACE," WE BEGIN WITH THE BREADTH OF MEANING DERIVED
FROM THAT PHRASE IN TOWN OF PONCHATOULA V. BATES, 173 LA. 824, 138 SO.
851 (1931).  TO BE SURE, THAT AMOUNTED TO AN ABSTRACT DISCUSSION AND IN
THE LIMITED CIRCUMSTANCES CONSIDERED BY THE LOUISIANA SUPREME COURT IN
STATE V. SANFORD, 203 LA. 961, 14 SO. 2D 778 (1943), THE ALLOWABLE
SCOPE OF THE STATUTORY PROHIBITION WAS NOT FULLY EXPLORED.  BUT
CONSTRUCTION OF THE STATUTE TO PROHIBIT NON-VIOLENT, NON-RELIGIOUS
BEHAVIOR IN A PRIVATE SHOP WHEN THAT BEHAVIOR HAS A TENDENCY TO DISTURB
OR ALARM THE PUBLIC IS FAIRLY DERIVABLE FROM A READING OF THE SANFORD
OPINION. 

THE ACTION OF THE LOUISIANA LEGISLATURE IN AMENDING ITS STATUTES
AFTER THE EVENTS NOW UNDER REVIEW TOOK PLACE IS NOT A SAFE OR EVEN
RELEVANT GUIDE TO THE SCOPE OF THE PRIOR STATUTE.  LEGISLATURES NOT
UNCOMMONLY SEEK TO MAKE PRIOR LAW MORE EXPLICIT OR REITERATE A
PROHIBITION BY MORE EMPHATIC CONCRETENESS.  THE RULE OF EVIDENCE THAT
EXCLUDES PROOF OF POST-INJURY REPAIRS OFFERS A USEFUL ANALOGY HERE. 
SEE II WIGMORE, EVIDENCE, SEC. 283 (THIRD ED. 1940).  IT IS NOT OUR
PROVINCE TO LIMIT THE MEANING OF A STATE STATUTE BEYOND ITS CONFINEMENT
BY REASONABLY READ STATE-COURT RULINGS. 

ASSUMING FOR PRESENT PURPOSES THE CONSTITUTIONALITY OF A STATE
PROHIBITING NON-VIOLENT ACTIVITY THAT TENDS TO PROVOKE PUBLIC ALARM OR
DISTURBANCE, SUCH A TENDENCY, AS A CRUCIAL ELEMENT OF A CRIMINAL
OFFENSE, MUST BE ESTABLISHED BY EVIDENCE DISCLOSED IN THE RECORD TO
SUSTAIN A CONVICTION.  A JUDGE'S PRIVATE KNOWLEDGE, OR EVEN "KNOWLEDGE
BY NOTORIETY," TO USE DEAN WIGMORE'S PHRASE, IX EVIDENCE, SEC. 2569
(THIRD ED. 1940), NOT PRESENTED AS PART OF THE PROSECUTION'S CASE
CAPABLE OF BEING MET BY A DEFENDANT, IS NOT AN ADEQUATE BASIS, AS A
MATTER OF DUE PROCESS, TO ESTABLISH AN ESSENTIAL ELEMENT OF WHAT IS
PUNISHED AS CRIME.  THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199. 

IT MAY BE UNNECESSARY TO REQUIRE FORMAL PROOF, EVEN AS TO AN ISSUE
CRUCIAL IN DETERMINING GUILT IN A CRIMINAL PROSECUTION, OF WHAT IS
INCONTESTABLY OBVIOUS.  BUT SOME SHOWING CANNOT BE DISPENSED WITH WHEN
AN INFERENCE IS AT ALL DOUBTFUL.  AND IT BEGS THE WHOLE QUESTION ON THE
ANSWER TO WHICH THE VALIDITY OF THESE CONVICTIONS TURNS TO ASSUME THAT
THE "PUBLIC" TENDED TO BE ALARMED BY THE CONDUCT OF THE PETITIONERS
HERE DISCLOSED.  SEE DEVLIN, L.J., IN DINGLE V. ASSOCIATED NEWSPAPERS,
(1961) 2 Q.B. 162, 198.  CONVICTION UNDER THIS LOUISIANA STATUTE CANNOT
BE SUSTAINED BY RELIANCE MERELY UPON LIKELY CONSEQUENCES IN THE
GENERALITY OF CASES.  SINCE PARTICULAR PERSONS ARE BEING SENT TO JAIL
FOR CONDUCT ALLEGEDLY HAVING A PARTICULAR EFFECT ON A PARTICULAR
OCCASION UNDER PARTICULAR CIRCUMSTANCES, IT BECOMES NECESSARY TO
APPRAISE THAT CONDUCT AND EFFECT BY THE PARTICULARITY OF EVIDENCE
ADDUCED. 

THE RECORDS IN THESE CASES, WHATEVER VARIANCE IN UNIMPORTANT DETAILS
THEY MAY SHOW, CONTAIN NO EVIDENCE OF DISTURBANCE OR ALARM IN THE
BEHAVIOR OF THE CAFE EMPLOYEES OR CUSTOMERS OR EVEN PASSERS-BY, THE
RELEVANT "PUBLIC" FAIRLY IN CONTEMPLATION OF THESE CHARGES.  WHAT THEY
DO SHOW WAS APTLY SUMMARIZED BOTH IN THE TESTIMONY OF THE ARRESTING
POLICE AND IN THE RECITATION OF THE TRIAL JUDGE AS THE "MERE PRESENCE"
OF THE PETITIONERS. 

SILENT PERSISTENCE IN SITTING AFTER SERVICE IS REFUSED COULD NO DOUBT
CONCEIVABLY EXACERBATE FEELINGS TO THE BOILING POINT.  IT IS NOT
FANCIFUL SPECULATION, HOWEVER, THAT A PROPRIETOR WHO INVITES TRADE IN
MOST PARTS OF HIS ESTABLISHMENT AND RESTRICTS IT IN ANOTHER MAY CHANGE
HIS POLICY WHEN NON-VIOLENTLY CHALLENGED.*  WITH RECORDS AS BARREN AS
THESE OF EVIDENCE FROM WHICH A TENDENCY TO DISTURB OR ALARM THE PUBLIC
IMMEDIATELY INVOLVED CAN BE DRAWN, THERE IS NOTHING BEFORE US ON WHICH
TO SUSTAIN SUCH AN INFERENCE FROM WHAT MAY BE HYPOTHETICALLY LODGED IN
THE UNOPENED BOSOM OF THE LOCAL COURT. 

*IF IT WERE CLEAR FROM THESE RECORDS THAT THE PROPRIETORS INVOLVED
HAD CHANGED THEIR POLICIES AND CONSENTED TO THE PETITIONERS' REMAINING,
WE WOULD, OF COURSE, HAVE AN ENTIRELY DIFFERENT CASE. 

SINCE THE "MERE PRESENCE" THAT THESE RECORDS PROVE HAS, IN ANY EVENT,
NOT BEEN MADE A CRIME BY THE LOUISIANA STATUTE UNDER WHICH THESE
PETITIONERS WERE CHARGED, THEIR CONVICTIONS MUST BE REVERSED. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IF THESE CASES HAD ARISEN IN THE PACIFIC NORTHWEST - THE AREA I KNOW
BEST - I COULD AGREE WITH THE OPINION OF THE COURT.  FOR WHILE MANY
COMMUNITIES NORTH AND SOUTH, EAST AND WEST, AT TIMES HAVE RACIAL
PROBLEMS, THOSE AREAS WHICH HAVE NEVER KNOWN SEGREGATION WOULD NOT BE
INFLAMED OR AROUSED BY THE PRESENCE OF A MEMBER OF A MINORITY RACE IN A
RESTAURANT.  BUT IN LOUISIANA RACIAL PROBLEMS HAVE AGITATED THE PEOPLE
SINCE THE DAYS OF SLAVERY.  THE LANDMARK CASE OF PLESSY V. FERGUSON,
163 U.S. 537 - THE DECISION THAT ANNOUNCED IN 1896 THE NOW-REPUDIATED
DOCTRINE OF "SEPARATE BUT EQUAL" FACILITIES FOR WHITES AND BLACKS -
CAME FROM LOUISIANA WHICH HAD ENACTED IN 1890 A STATUTE REQUIRING
SEGREGATION OF THE RACES ON RAILROAD TRAINS.  IN THE ENVIRONMENT OF A
SEGREGATED COMMUNITY I CAN UNDERSTAND HOW THE MERE PRESENCE OF A NEGRO
AT A WHITE LUNCH COUNTER MIGHT INFLAME SOME PEOPLE AS MUCH AS
FISTICUFFS WOULD IN OTHER PLACES.  FOR THE REASONS STATED BY MR.
JUSTICE HARLAN IN THESE CASES, I READ THE LOUISIANA OPINIONS AS MEANING
THAT THIS LAW INCLUDES "PEACEFUL CONDUCT OF A KIND THAT FORESEEABLY MAY
LEAD TO PUBLIC DISTURBANCE" - A KIND OF "GENERALLY KNOWN CONDITION"
THAT MAY BE "JUDICIALLY NOTICED" EVEN IN A CRIMINAL CASE. 

THIS DOES NOT MEAN THAT THE POLICE WERE JUSTIFIED IN MAKING THESE
ARRESTS.  FOR THE POLICE ARE SUPPOSED TO BE ON THE SIDE OF THE
CONSTITUTION, NOT ON THE SIDE OF DISCRIMINATION.  YET IF ALL
CONSTITUTIONAL QUESTIONS ARE TO BE PUT ASIDE AND THE PROBLEM TREATED
MERELY IN TERMS OF DISTURBING THE PEACE, I WOULD HAVE DIFFICULTY IN
REVERSING THESE JUDGMENTS.  I THINK, HOWEVER, THE CONSTITUTIONAL
QUESTIONS MUST BE REACHED AND THAT THEY MAKE REVERSAL NECESSARY. 

RESTAURANTS, WHETHER IN A DRUGSTORE, DEPARTMENT STORE, OR BUS
TERMINAL, ARE A PART OF THE PUBLIC LIFE OF MOST OF OUR COMMUNITIES. 
THOUGH THEY ARE PRIVATE ENTERPRISES, THEY ARE PUBLIC FACILITIES IN
WHICH THE STATES MAY NOT ENFORCE A POLICY OF RACIAL SEGREGATION. 

                  I. 

IT IS, OF COURSE, STATE ACTION THAT IS PROHIBITED BY THE FOURTEENTH
AMENDMENT, NOT THE ACTIONS OF INDIVIDUALS.  SO FAR AS THE FOURTEENTH
AMENDMENT IS CONCERNED, INDIVIDUALS CAN BE AS PREJUDICED AND INTOLERANT
AS THEY LIKE.  THEY MAY AS A CONSEQUENCE SUBJECT THEMSELVES TO SUITS
FOR ASSAULT, BATTERY, OR TRESPASS.  BUT THOSE ACTIONS HAVE NO FOOTING
IN THE FEDERAL CONSTITUTION.  THE LINE OF FORBIDDEN CONDUCT MARKED BY
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT IS CROSSED ONLY
WHEN A STATE MAKES PREJUDICE OR INTOLERANCE ITS POLICY AND ENFORCES IT,
AS HELD IN THE CIVIL RIGHTS CASES, 109 U.S. 3.  MR. JUSTICE BRADLEY,
SPEAKING FOR THE COURT, SAID:  " ...  CIVIL RIGHTS, SUCH AS ARE
GUARANTEED BY THE CONSTITUTION AGAINST STATE AGGRESSION, CANNOT BE
IMPAIRED BY THE WRONGFUL ACTS OF INDIVIDUALS, UNSUPPORTED BY STATE
AUTHORITY IN THE SHAPE OF LAWS, CUSTOMS, OR JUDICIAL OR EXECUTIVE
PROCEEDINGS."  ID., AT 17. 

STATE POLICY VIOLATIVE OF THE FOURTEENTH AMENDMENT MAY BE EXPRESSED
IN LEGISLATIVE ENACTMENTS THAT PERMIT OR REQUIRE SEGREGATION OF THE
RACES IN PUBLIC PLACES OR PUBLIC FACILITIES (BROWN V. BOARD OF
EDUCATION, 347 U.S. 483) OR IN RESIDENTIAL AREAS.  BUCHANAN V. WARLEY,
245 U.S. 60. 

IT MAY BE EXPRESSED THROUGH EXECUTIVE ACTION, AS WHERE THE POLICE OR
OTHER LAW ENFORCEMENT OFFICIALS ACT PURSUANT TO, OR UNDER COLOR OF,
STATE LAW.  SEE, E.G., SCREWS V. UNITED STATES, 325 U.S. 91; MONROE V.
PAPE, 365 U.S. 167.    IT MAY BE EXPRESSED THROUGH THE ADMINISTRATIVE
ACTION OF STATE AGENCIES IN LEASING PUBLIC FACILITIES.  BURTON V.
WILMINGTON PARKING AUTHORITY, 365 U.S. 715. 

IT MAY RESULT FROM JUDICIAL ACTION, AS WHERE MEMBERS OF A RACE ARE
SYSTEMATICALLY EXCLUDED FROM JURIES (HERNANDEZ V. TEXAS, 347 U.S. 475),
OR WHERE RESTRICTIVE COVENANTS BASED ON RACE ARE ENFORCED BY THE
JUDICIARY (BARROWS V. JACKSON, 346 U.S. 249), OR WHERE A STATE COURT
FINES OR IMPRISONS A PERSON FOR ASSERTING HIS FEDERAL RIGHT TO USE THE
FACILITIES OF AN INTERSTATE BUS TERMINAL, BOYNTON V. VIRGINIA, 364 U.S.
454.    AS NOTED, MR. JUSTICE BRADLEY SUGGESTED IN THE CIVIL RIGHTS
CASES, SUPRA, THAT STATE POLICY MAY BE AS EFFECTIVELY EXPRESSED IN
CUSTOMS AS IN FORMAL LEGISLATIVE, EXECUTIVE, OR JUDICIAL ACTION. 

IT WAS INDEED HELD IN BALDWIN V. MORGAN, 287 F.2D 750, 756, THAT THE
"CUSTOM, PRACTICE AND USAGE" OF A CITY AND ITS POLICE IN ARRESTING FOUR
NEGROES FOR USING "WHITE" WAITING ROOMS WAS STATE ACTION IN VIOLATION
OF THE FOURTEENTH AMENDMENT, EVEN THOUGH NO ORDINANCE WAS PROMULGATED
AND NO ORDER ISSUED.  IN THE INSTANT CASES SUCH AN INFERENCE CAN BE
DRAWN FROM THE TOTALITY OF CIRCUMSTANCES PERMEATING THE ENVIRONMENT
WHERE THE ARRESTS WERE MADE - NOT AN ISOLATED ARREST BUT THREE ARRESTS;
NOT ARRESTS ON ACCOUNT OF FISTICUFFS BUT ARRESTS BECAUSE THE DEFENDANTS
WERE NEGROES SEEKING RESTAURANT SERVICE AT COUNTERS AND TABLES RESERVED
FOR "WHITES." 

THERE IS A DEEP-SEATED PATTERN OF SEGREGATION OF THE RACES IN
LOUISIANA, (FN1) GOING BACK AT LEAST TO PLESSY V. FERGUSON, SUPRA.  IT
WAS RESTATED IN 1960 - THE YEAR IN WHICH PETITIONERS WERE ARRESTED AND
CHARGED FOR SITTING IN WHITE RESTAURANTS - BY ACT NO. 630, WHICH IN ITS
PREAMBLE STATES: 

"WHEREAS, LOUISIANA HAS ALWAYS MAINTAINED A POLICY OF SECREGATION OF
THE RACES, AND: 

"WHEREAS, IT IS THE INTENTION OF THE CITIZENS OF THIS SOVEREIGN STATE
THAT SUCH A POLICY BE CONTINUED."  LA. ACTS 1960, P. 1200. 

LOUISIANA REQUIRES THAT ALL CIRCUSES, SHOWS, AND TENT EXHIBITIONS TO
WHICH THE PUBLIC IS INVITED HAVE ONE ENTRANCE FOR WHITES AND ONE FOR
NEGROES.  LA. REV. STAT., 1950, SEC. 4:5.  NO DANCING, SOCIAL
FUNCTIONS, ENTERTAINMENT, ATHLETIC TRAINING, GAMES, SPORTS, CONTESTS
"AND OTHER SUCH ACTIVITIES INVOLVING PERSONAL AND SOCIAL CONTACTS" MAY
BE OPEN TO BOTH RACES.  SEC. 4:451 (1960 SUPP.).  ANY PUBLIC
ENTERTAINMENT OR ATHLETIC CONTEST MUST PROVIDE SEPARATE SEATING
ARRANGEMENTS AND SEPARATE SANITARY DRINKING WATER AND "ANY OTHER
FACILITIES" FOR THE TWO RACES.  SEC. 4:452 (1960 SUPP.).  MARRIAGE
BETWEEN MEMBERS OF THE TWO RACES IS BANNED.  SEC. 14:79.  SEGREGATION
BY RACE IS REQUIRED IN PRISONS.  SEC. 15:752.  THE BLIND MUST BE
SEGREGATED.  SEC. 17:10.  TEACHERS IN PUBLIC SCHOOLS ARE BARRED FROM
ADVOCATING DESEGREGATION OF THE RACES IN THE PUBLIC SCHOOL SYSTEM. 
SECS. 17:443, 17:462.  SO ARE OTHER STATE EMPLOYEES.  SEC. 17:523. 
SEGREGATION ON TRAINS IS REQUIRED.  SECS. 45:528-45:532.  COMMON
CARRIERS OF PASSENGERS MUST PROVIDE SEPARATE WAITING ROOMS AND
RECEPTION ROOM FACILITIES FOR THE TWO RACES (SEC. 45:1301 (1960 SUPP.))
AND SEPARATE TOILETS AND SEPARATE FACILITIES FOR DRINKING WATER AS
WELL.  SEC. 45:1303 (1960 SUPP.).  EMPLOYERS MUST PROVIDE SEPARATE
SANITARY FACILITIES FOR THE TWO RACES.  SEC. 23:971 (1960 SUPP.). 
EMPLOYERS MUST ALSO PROVIDE SEPARATE EATING PLACES IN SEPARATE ROOMS
AND SEPARATE EATING AND DRINKING UTENSILS FOR MEMBERS OF THE TWO
RACES.  SEC. 23:972 (1960 SUPP.).  PERSONS OF ONE RACE MAY NOT
ESTABLISH THEIR RESIDENCE IN A COMMUNITY OF ANOTHER RACE WITHOUT
APPROVAL OF THE MAJORITY OF THE OTHER RACE.  SEC. 33:5066.  COURT
DOCKETS MUST REVEAL THE RACE OF THE PARTIES IN DIVORCE ACTIONS.  SEC.
13:917.  AND ALL PUBLIC PARKS, RECREATION CENTERS, PLAYGROUNDS,
COMMUNITY CENTERS AND "OTHER SUCH FACILITIES AT WHICH SWIMMING,
DANCING, GOLFING, SKATING OR OTHER RECREATIONAL ACTIVITIES ARE
CONDUCTED" MUST BE SEGREGATED.  SEC. 33:4558.1 (1960 SUPP.). 

THOUGH THERE MAY HAVE BEEN NO STATE LAW OR MUNICIPAL ORDINANCE THAT
IN TERMS REQUIRED SEGREGATION OF THE RACES IN RESTAURANTS, IT IS PLAIN
THAT THE PROPRIETORS IN THE INSTANT CASES WERE SEGREGATING BLACKS FROM
WHITES PURSUANT TO LOUISIANA'S CUSTOM.  SEGREGATION IS BASIC TO THE
STRUCTURE OF LOUISIANA AS A COMMUNITY; THE CUSTOM THAT MAINTAINS IT IS
AT LEAST AS POWERFUL AS ANY LAW.  IF THESE PROPRIETORS ALSO CHOOSE
SEGREGATION, THEIR PREFERENCE DOES NOT MAKE THE ACTION "PRIVATE,"
RATHER THAN "STATE," ACTION.  IF IT DID, A MINISCULE OF PRIVATE
PREJUDICE WOULD CONVERT STATE INTO PRIVATE ACTION.  MOREOVER, WHERE THE
SEGREGATION POLICY IS THE POLICY OF A STATE, IT MATTERS NOT THAT THE
AGENCY TO ENFORCE IT IS A PRIVATE ENTERPRISE.  BALDWIN V. MORGAN,
SUPRA; BOMAN V. BIRMINGHAM TRANSIT CO., 280 F.2D 531. 

      II. 

IT IS MY VIEW THAT A STATE MAY NOT CONSTITUTIONALLY ENFORCE A POLICY
OF SEGREGATION IN RESTAURANT FACILITIES.  SOME OF THE ARGUMENT ASSUMED
THAT RESTAURANTS ARE "PRIVATE" PROPERTY IN THE SENSE THAT ONE'S HOME IS
"PRIVATE" PROPERTY.  THEY ARE, OF COURSE, "PRIVATE" PROPERTY FOR MANY
PURPOSES OF THE CONSTITUTION.  YET SO ARE STREET RAILWAYS, POWER
PLANTS, WAREHOUSES, AND OTHER TYPES OF ENTERPRISES WHICH HAVE LONG BEEN
HELD TO BE AFFECTED WITH A PUBLIC INTEREST.  WHERE CONSTITUTIONAL
RIGHTS ARE INVOLVED, THE PROPRIETARY INTERESTS OF INDIVIDUALS MUST GIVE
WAY.  TOWNS, THOUGH WHOLLY OWNED BY PRIVATE INTERESTS, PERFORM
MUNICIPAL FUNCTIONS AND ARE HELD TO THE SAME CONSTITUTIONAL
REQUIREMENTS AS ORDINARY MUNICIPALITIES.  MARSH V. ALABAMA, 326 U.S.
501.  STATE REGULATION OF PRIVATE ENTERPRISE FALLS WHEN IT
DISCRIMINATES AGAINST INTERSTATE COMMERCE.  PORT RICHMOND FERRY V.
HUDSON COUNTY, 234 U.S. 317.  STATE REGULATION OF PRIVATE ENTERPRISE
THAT RESULTS IN IMPAIRMENT OF OTHER CONSTITUTIONAL RIGHTS SHOULD STAND
ON NO FIRMER FOOTING, AT LEAST IN THE AREA WHERE FACILITIES OF A PUBLIC
NATURE ARE INVOLVED. 

LONG BEFORE CHIEF JUSTICE WAITE WROTE THE OPINION IN MUNN V.
ILLINOIS, 94 U.S. 113, HOLDING THAT THE PRICES CHARGED BY GRAIN
WAREHOUSES COULD BE REGULATED BY THE STATE, A LONG LIST OF BUSINESSES
HAD BEEN HELD TO BE "AFFECTED WITH A PUBLIC INTEREST."  AMONG THESE
WERE FERRIES, COMMON CARRIERS, HACKMEN, BAKERS, MILLERS, WHARFINGERS,
AND INNKEEPERS.  ID., AT 125.  THE TEST USED IN MUNN V. ILLINOIS WAS
STATED AS FOLLOWS:  "PROPERTY DOES BECOME CLOTHED WITH A PUBLIC
INTEREST WHEN USED IN A MANNER TO MAKE IT OF PUBLIC CONSEQUENCE, AND
AFFECT THE COMMUNITY AT LARGE."  ID., AT 126.  IN REPLY TO THE CHARGE
THAT PRICE REGULATION DEPRIVED THE WAREHOUSEMEN OF PROPERTY, CHIEF
JUSTICE WAITE STATED, "THERE IS NO ATTEMPT TO COMPEL THESE OWNERS TO
GRANT THE PUBLIC AN INTEREST IN THEIR PROPERTY, BUT TO DECLARE THEIR
OBLIGATIONS, IF THEY USE IT IN THIS PARTICULAR MANNER."  ID., AT 133. 

THERE WAS A LONG SPAN BETWEEN MUNN V. ILLINOIS AND NEBBIA V. NEW
YORK, 291 U.S. 502, WHICH UPHELD THE POWER OF A STATE TO FIX THE PRICE
OF MILK.  A BUSINESS MAY HAVE A "PUBLIC INTEREST" EVEN THOUGH IT IS NOT
A "PUBLIC UTILITY" IN THE ACCEPTED SENSE, EVEN THOUGH IT ENJOYS NO
FRANCHISE FROM THE STATE, AND EVEN THOUGH IT ENJOYS NO MONOPOLY.  ID.,
AT 534.  THE EXAMPLES COVER A WIDE RANGE FROM PRICE CONTROL TO
PROHIBITION OF CERTAIN TYPES OF BUSINESS.  ID., AT 525-529.  VARIOUS
SYSTEMS OR DEVICES DESIGNED BY STATES OR MUNICIPALITIES TO PROTECT THE
WHOLESOMENESS OF FOOD IN THE INTERESTS OF HEALTH ARE DEEP-SEATED AS ANY
EXERCISE OF THE POLICE POWER.  ADAMS V. MILWAUKEE, 228 U.S. 572. 

YEARS AGO LORD CHIEF JUSTICE HALE STATED IN DE PORTIBUS MARIS, 1
HARG.  LAW TRACTS 78, "  ...  IF A MAN SET OUT A STREET IN NEW BUILDING
ON HIS OWN LAND, IT IS NOW NO LONGER BARE PRIVATE INTEREST, BUT IS
AFFECTED WITH A PUBLIC INTEREST."  THOSE WHO RUN A RETAIL ESTABLISHMENT
UNDER PERMIT FROM A MUNICIPALITY OPERATE, IN MY VIEW, A PUBLIC FACILITY
IN WHICH THERE CAN BE NO MORE DISCRIMINATION BASED ON RACE THAN IS
CONSTITUTIONALLY PERMISSIBLE IN THE MORE CUSTOMARY TYPES OF PUBLIC
FACILITY. 

UNDER LOUISIANA LAW, RESTAURANTS ARE A FORM OF PRIVATE PROPERTY
AFFECTED WITH A PUBLIC INTEREST.  LOCAL BOARDS OF HEALTH ARE GIVEN
BROAD POWERS.  LA. REV. STAT., 1950, SECS.  40:35, 33:621.  THE CITY OF
BATON ROUGE IN ITS CITY CODE REQUIRES ALL RESTAURANTS TO HAVE A
PERMIT.  TIT. 6, C. 7, SEC. 601.  THE DIRECTOR OF PUBLIC HEALTH IS
GIVEN BROAD POWERS OF INSPECTION AND PERMITS ISSUED CAN BE SUSPENDED. 
ID. SEC. 603.  PERMITS ARE NOT TRANSFERABLE.  ID. SEC. 606.  ONE WHO
OPERATES WITHOUT A PERMIT COMMITS A SEPARATE OFFENSE EACH DAY A
VIOLATION OCCURS.  ID. SEC. 604.  MOREOVER, DETAILED PROVISIONS ARE
MADE CONCERNING THE EQUIPMENT THAT RESTAURANTS MUST HAVE, THE
PROTECTION OF READY-TO-EAT FOODS AND DRINK, AND THE STORAGE OF FOOD. 
ID. SEC. 609. 

RESTAURANTS, THOUGH A SPECIES OF PRIVATE PROPERTY, ARE IN THE PUBLIC
DOMAIN.  OR TO PARAPHRASE THE OPINION IN NEBBIA V. NEW YORK, SUPRA,
RESTAURANTS IN LOUISIANA HAVE A "PUBLIC CONSEQUENCE" AND "AFFECT THE
COMMUNITY AT LARGE."  291 U.S. 502, 533. 

WHILE THE CONCEPT OF A BUSINESS "AFFECTED WITH A PUBLIC INTEREST"
NORMALLY IS USED AS A MEASURE OF A STATE'S POLICE POWER OVER IT, IT
ALSO HAS OTHER CONSEQUENCES.  A STATE MAY NOT REQUIRE SEGREGATION OF
THE RACES IN CONVENTIONAL PUBLIC UTILITIES ANY MORE THAN IT CAN
SEGREGATE THEM IN ORDINARY PUBLIC FACILITIES.  (FN2)  AS STATED BY THE
COURT IN BOMAN V. BIRMINGHAM TRANSIT CO., 280 F.2D 531, 535, A PUBLIC
UTILITY "IS DOING SOMETHING THE STATE DEEMS USEFUL FOR THE PUBLIC
NECESSITY OR CONVENIENCE."  IT WAS THIS IDEA THAT THE FIRST MR. JUSTICE
HARLAN, DISSENTING IN PLESSY V. FERGUSON, SUPRA, ADVANCED.  THOUGH A
COMMON CARRIER IS PRIVATE ENTERPRISE, "ITS WORK," HE MAINTAINED, IS
PUBLIC.  ID., AT 554.  AND THERE CAN BE NO DIFFERENCE, IN MY VIEW,
BETWEEN ONE KIND OF BUSINESS THAT IS REGULATED IN THE PUBLIC INTEREST
AND ANOTHER KIND SO FAR AS THE PROBLEM OF RACIAL SEGREGATION IS
CONCERNED.  I DO NOT BELIEVE THAT A STATE THAT LICENSES A BUSINESS CAN
LICENSE IT TO SERVE ONLY WHITES OR ONLY BLACKS OR ONLY YELLOWS OR ONLY
BROWNS.  RACE IS AN IMPERMISSIBLE CLASSIFICATION WHEN IT COMES TO PARKS
OR OTHER MUNICIPAL FACILITIES BY REASON OF THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT.  BY THE SAME TOKEN, I DO NOT SEE HOW A
STATE CAN CONSTITUTIONALLY EXERCISE ITS LICENSING POWER OVER BUSINESS
EITHER IN TERMS OR IN EFFECT TO SEGREGATE THE RACES IN THE LICENSED
PREMISES.  THE AUTHORITY TO LICENSE A BUSINESS FOR PUBLIC USE IS
DERIVED FROM THE PUBLIC.  NEGROES ARE AS MUCH A PART OF THAT PUBLIC AS
ARE WHITES.  A MUNICIPALITY GRANTING A LICENSE TO OPERATE A BUSINESS
FOR THE PUBLIC REPRESENTS NEGROES AS WELL AS ALL OTHER RACES WHO LIVE
THERE.  A LICENSE TO ESTABLISH A RESTAURANT IS A LICENSE TO ESTABLISH A
PUBLIC FACILITY AND NECESSARILY IMPORTS, IN LAW, EQUALITY OF USE FOR
ALL MEMBERS OF THE PUBLIC.  I SEE NO WAY WHEREBY LICENSES ISSUED BY A
STATE TO SERVE THE PUBLIC CAN BE DISTINGUISHED FROM LEASES OF PUBLIC
FACILITIES (BURTON V. WILMINGTON PARKING AUTHORITY, SUPRA) FOR THAT
END. 

ONE CAN CLOSE THE DOORS OF HIS HOME TO ANYONE HE DESIRES.  BUT ONE
WHO OPERATES AN ENTERPRISE UNDER A LICENSE FROM THE GOVERNMENT ENJOYS A
PRIVILEGE THAT DERIVES FROM THE PEOPLE.  WHETHER RETAIL STORES, NOT
LICENSED BY THE MUNICIPALITY, STAND ON A DIFFERENT FOOTING IS NOT
PRESENTED HERE.  BUT THE NECESSITY OF A LICENSE SHOWS THAT THE PUBLIC
HAS RIGHTS IN RESPECT TO THOSE PREMISES.  THE BUSINESS IS NOT A MATTER
OF MERE PRIVATE CONCERN.  THOSE WHO LICENSE ENTERPRISES FOR PUBLIC USE
SHOULD NOT HAVE UNDER OUR CONSTITUTION THE POWER TO LICENSE IT FOR THE
USE OF ONLY ONE RACE.  FOR THERE IS THE OVERRIDING CONSTITUTIONAL
REQUIREMENT THAT ALL STATE POWER BE EXERCISED SO AS NOT TO DENY EQUAL
PROTECTION TO ANY GROUP.  AS THE FIRST MR. JUSTICE HARLAN STATED IN
DISSENT IN PLESSY V. FERGUSON, SUPRA, AT 559, "  ...  IN VIEW OF THE
CONSTITUTION, IN THE EYE OF THE LAW, THERE IS IN THIS COUNTRY NO
SUPERIOR, DOMINANT, RULING CLASS OF CITIZENS.  THERE IS NO CASTE HERE. 
OUR CONSTITUTION IS COLOR-BLIND  ...  ." 

FN1  ARTICLE 135 OF LOUISIANA'S 1868 CONSTITUTION FORBADE SEGREGATION
OF THE RACES IN PUBLIC SCHOOLS.  BUT THAT PROHIBITION WAS DROPPED FROM
LOUISIANA'S 1879 CONSTITUTION.  THE LATTER BY ARTICLE 231 AUTHORIZED
THE ESTABLISHMENT OF A UNIVERSITY FOR NEGROES. 

WOODWARD, STRANGE CAREER OF JIM CROW (1955), PP. 7-8: 

"  ...  IN BULK AND DETAIL AS WELL AS IN EFFECTIVENESS OF ENFORCEMENT
THE SEGREGATION CODES WERE COMPARABLE WITH THE BLACK CODES OF THE OLD
REGIME, THOUGH THE LAXITY THAT MITIGATED THE HARSHNESS OF THE BLACK
CODES WAS REPLACED BY A RIGIDITY THAT WAS MORE TYPICAL OF THE
SEGREGATION CODE.  THAT CODE LENT THE SANCTION OF LAW TO A RACIAL
OSTRACISM THAT EXTENDED TO CHURCHES AND SCHOOLS, TO HOUSING AND JOBS,
TO EATING AND DRINKING.  WHETHER BY LAW OR BY CUSTOM, THAT OSTRACISM
EVENTUALLY EXTENDED TO VIRTUALLY ALL FORMS OF PUBLIC TRANSPORTATION, TO
SPORTS AND RECREATIONS, TO HOSPITALS, ORPHANAGES, PRISONS, AND ASYLUMS,
AND ULTIMATELY TO FUNERAL HOMES, MORGUES, AND CEMETERIES." 

FN2  WE HAVE HELD ON NUMEROUS OCCASIONS THAT THE STATES MAY NOT USE
THEIR POWERS TO ENFORCE RACIAL SEGREGATION IN PUBLIC FACILITIES.  MAYOR
AND CITY COUNCIL OF BALTIMORE CITY V. DAWSON, 350 U.S. 877
(1955)(PUBLIC BEACHES AND BATHHOUSES); HOLMES V. CITY OF ATLANTA, 350
U.S. 879 (1955)(MUNICIPAL GOLF COURSES); GAYLE V. BROWDER, 352 U.S. 903
(1956)(BUSES OPERATED ON CITY STREETS); NEW ORLEANS CITY PARK
IMPROVEMENT ASSOCIATION V. DETIEGE, 358 U.S. 54 (1958)(GOLF COURSE AND
CITY PARKS).  FOR DECISIONS OF THE LOWER FEDERAL COURTS HOLDING RACIAL
SEGREGATION UNCONSTITUTIONAL AS APPLIED TO FACILITIES OPEN TO PUBLIC
ENJOYMENT AND PATRONAGE, SEE DEPARTMENT OF CONSERVATION & DEVELOPMENT,
DIVISION OF PARKS, OF VIRGINIA, V. TATE, 231 F.2D 615 (STATE PARK);
CITY OF ST. PETERSBURG V. ALSUP, 238 F.2D 830 (MUNICIPAL BEACH AND
SWIMMING POOL); MORRISON V. DAVIS, 252 F.2D 102 (PUBLIC TRANSPORTATION
FACILITIES).    MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT. 

I AGREE THAT THESE CONVICTIONS ARE UNCONSTITUTIONAL, BUT NOT FOR THE
REASONS GIVEN BY THE COURT.  RELYING ON THOMPSON V. CITY OF LOUISVILLE,
362 U.S. 199, THE COURT STRIKES DOWN THE CONVICTIONS ON THE GROUND THAT
THERE IS NO EVIDENCE WHATEVER TO SUPPORT THEM.  IN MY OPINION THE
THOMPSON DOCTRINE DOES NOT FIT THESE CASES.  HOWEVER, I BELIEVE THE
CONVICTIONS ARE VULNERABLE UNDER THE FOURTEENTH AMENDMENT ON OTHER
GROUNDS:  (1) THE KIND OF CONDUCT REVEALED IN GARNER, NO. 26, AND IN
HOSTON, NO. 28, COULD NOT BE PUNISHED UNDER A GENERALIZED BREACH OF THE
PEACE PROVISION, SUCH AS ART. 103(7), LA. CRIM. CODE; (FN1) (2) ART.
103(7) AS APPLIED IN BRISCOE, NO. 27 (AS WELL AS IN THE GARNER AND
HOSTON CASES) IS UNCONSTITUTIONALLY VAGUE AND UNCERTAIN. 

THE COURT'S REVERSAL FOR LACK OF EVIDENCE RESTS ON TWO DIFFERENT
VIEWS OF ART. 103(7).  FIRST, IT IS SAID THAT THE STATUTE, AS CONSTRUED
BY THE LOUISIANA COURTS, REACHES AT MOST ONLY "VIOLENT," "BOISTEROUS,"
OR "OUTWARDLY PROVOCATIVE" CONDUCT THAT MAY FORESEEABLY INDUCE A PUBLIC
DISTURBANCE.  ON THIS VIEW, THESE CASES ARE FOUND EVIDENTIALLY WANTING
BECAUSE THE PETITIONERS' CONDUCT, BEING ENTIRELY PEACEFUL, WAS NOT OF
THE CHARACTER PROSCRIBED BY THE STATUTE SO CONSTRUED.  ALTERNATIVELY,
IT IS RECOGNIZED THAT THE STATUTE IS SUSCEPTIBLE OF A CONSTRUCTION THAT
WOULD EMBRACE AS WELL OTHER KINDS OF CONDUCT HAVING THE ABOVE EFFECT. 
ON THAT VIEW, THE CONVICTIONS ARE ALSO FOUND EVIDENTIALLY DEFICIENT, IN
THAT PETITIONERS' CONDUCT, SO IT IS SAID, COULD NOT PROPERLY BE TAKEN
AS HAVING ANY TENDENCY TO CAUSE A PUBLIC DISTURBANCE.  IN MY OPINION,
THE FIRST OF THESE HOLDINGS CANNOT WITHSTAND ANALYSIS WITH APPROPRIATE
REGARD FOR THE LIMITATIONS UPON OUR POWERS OF REVIEW OVER STATE
CRIMINAL CASES; THE SECOND HOLDING RESTS ON UNTENABLE POSTULATES AS TO
THE LAW OF EVIDENCE. 

                                I. 

TURNING TO THE FIRST HOLDING, IT GOES WITHOUT SAYING THAT WE ARE NOT
AT LIBERTY TO DETERMINE FOR OURSELVES THE SCOPE OF THIS LOUISIANA
STATUTE.  THAT WAS A FUNCTION BELONGING EXCLUSIVELY TO THE STATE
COURTS, AND THEIR INTERPRETATION IS BINDING ON US.  E.G., APPLEYARD V.
MASSACHUSETTS, 203 U.S. 222, 227; HEBERT V. LOUISIANA, 272 U.S. 312,
316; WILLIAMS V. OKLAHOMA, 358 U.S. 576, 583.  FOR ME, THE COURT'S VIEW
THAT THE STATUTE COVERS ONLY NONPEACEFUL CONDUCT IS UNACCEPTABLE, SINCE
I BELIEVE THAT THE LOUISIANA SUPREME COURT DECIDED THE OPPOSITE IN
THESE VERY CASES.  I THINK THE STATE SUPREME COURT'S REFUSAL TO REVIEW
THESE CONVICTIONS, TAKEN IN LIGHT OF ITS ASSERTION THAT THE "RULINGS OF
THE DISTRICT JUDGE ON MATTERS OF LAW ARE NOT ERRONEOUS," MUST BE
ACCEPTED AS AN AUTHORITATIVE AND BINDING STATE DETERMINATION THAT THE
PETITIONERS' ACTIVITIES, AS REVEALED IN THESE RECORDS, DID VIOLATE THE
STATUTE; IN OTHER WORDS THAT, CONTRARY TO WHAT THIS COURT NOW SAYS IN
PART I OF ITS OPINION, THE ENACTMENT DOES COVER PEACEFUL CONDUCT OF A
KIND THAT FORESEEABLY MAY LEAD TO PUBLIC DISTURBANCE.  (FN2) 

THIS COURT'S VIEW OF THE STATUTE RESTS PRIMARILY, IF NOT ENTIRELY, ON
AN EARLIER LOUISIANA CASE, STATE V. SANFORD, 203 LA. 961, 14 SO. 2D
778, INVOLVING A DIFFERENT, BUT COMPARABLE, BREACH OF THE PEACE
STATUTE.  THAT CASE IS REGARDED AS ESTABLISHING THAT BREACHES OF THE
PEACE UNDER LOUISIANA LAW ARE CONFINED TO NONPEACEFUL CONDUCT.  WHILE I
DO NOT FIND THE SANFORD CASE AS "PLAIN" AS THE COURT DOES (INFRA, PP.
191-192), THAT EARLIER HOLDING CANNOT IN ANY EVENT BE DEEMED
CONTROLLING ON THE SIGNIFICANCE TO BE ATTRIBUTED TO THE ACTION OF THE
STATE SUPREME COURT IN THESE CASES.  THERE CAN BE NO DOUBT THAT
LOUISIANA HAD TO FOLLOW THE PRINCIPLES OF SANFORD ONLY TO THE EXTENT
THAT IT FELT BOUND BY STARE DECISIS.  A DEPARTURE FROM PRECEDENT MAY
HAVE BEEN WRONG, UNWISE, OR EVEN UNJUST, BUT IT WAS NOT
UNCONSTITUTIONAL.  PATTERSON V. COLORADO, 205 U.S. 454, 461.  (FN3)
SEE ALSO BRINKERHOFF-FARIS TRUST CO. V. HILL, 281 U.S. 673, 680, AND
CASES THERE CITED; CF. GREAT NORTHERN R. CO. V. SUNBURST OIL & REFINING
CO., 287 U.S. 358, 364. 

MORE BASICALLY, ESTABLISHED PRINCIPLES OF CONSTITUTIONAL ADJUDICATION
REQUIRE US TO CONSIDER THAT THE LOUISIANA SUPREME COURT'S REFUSAL TO
REVIEW THESE CASES SIGNIFIES A HOLDING THAT THE BREACH OF THE PEACE
STATUTE WHICH CONTROLS THESE CASES DOES EMBRACE THE CONDUCT OF THE
PETITIONERS, PEACEFUL THOUGH IT WAS. 

THESE STATE JUDGMENTS COME TO US ARMORED WITH A PRESUMPTION THAT THEY
ARE NOT FOUNDED "OTHERWISE THAN IS REQUIRED BY THE FUNDAMENTAL LAW OF
THE LAND," EX PARTE ROYALL, 117 U.S. 241, 252 (SEE ALSO DARR V.
BURFORD, 339 U.S. 200, 205), COMPARABLE TO THE PRESUMPTION WHICH HAS
ALWAYS ATTACHED TO STATE LEGISLATIVE ENACTMENTS.  SEE, E.G., BUTLER V.
PENNSYLVANIA, 10 HOW.  402, 415.  THAT PRESUMPTION SHOULD RENDER
IMPERMISSIBLE AN INTERPRETATION OF THESE JUDGMENTS AS RESTING ON THE
VIEW THAT THE RELEVANT BREACH OF THE PEACE STATUTE REACHES ONLY UNRULY
BEHAVIOR.  FOR, ON THE COURT'S PREMISE THAT THERE IS NO EVIDENCE OF
THAT KIND OF BEHAVIOR, SUCH AN INTERPRETATION IN EFFECT ATTRIBUTES TO
THE LOUISIANA SUPREME COURT A DELIBERATELY UNCONSTITUTIONAL DECISION,
UNDER PRINCIPLES ESTABLISHED BY THOMPSON V. CITY OF LOUISVILLE, SUPRA,
WHICH HAD ALREADY BEEN DECIDED AT THE TIME THESE CASES CAME BEFORE THE
LOUISIANA COURTS. 

MOREOVER, THE KIND OF SPECULATION IN WHICH THE COURT HAS INDULGED AS
TO THE MEANING OF THE LOUISIANA STATUTE IS SURELY OUT OF KEEPING WITH
THE PRINCIPLE THAT FEDERAL COURTS SHOULD ABSTAIN FROM CONSTITUTIONAL
DECISION INVOLVING DOUBTFUL STATE LAW QUESTIONS UNTIL A CLARIFYING
ADJUDICATION ON THEM HAS FIRST BEEN OBTAINED FROM THE STATE COURTS. 
SEE RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496, 500; HARRISON V.
N.A.A.C.P., 360 U.S. 167.  CF.  GLENN V. FIELD PACKING CO., 290 U.S.
177; LEITER MINERALS, INC., V. UNITED STATES, 352 U.S. 220, 228-229;
LOUISIANA POWER & LIGHT CO. V. CITY OF THIBODAUX, 360 U.S. 25.  IF
THERE BE DOUBT AS TO HOW THE STATUTE WAS CONSTRUED IN THIS RESPECT, THE
CASES SHOULD BE RETURNED TO THE LOUISIANA SUPREME COURT FOR
CLARIFICATION OF ITS JUDGMENTS.  SEE HERB V. PITCAIRN, 324 U.S. 117. 

OUR RECENT DECISION IN THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199,
CANNOT WELL BE TAKEN AS JUSTIFICATION FOR CONSIDERING THE JUDGMENTS
UNDER REVIEW AS OTHER THAN A HOLDING BY LOUISIANA'S HIGHEST COURT THAT
BREACH OF THE PEACE UNDER THEN EXISTING STATE LAW MAY INCLUDE CONDUCT
THAT IN ITSELF IS PEACEFUL.  IN THOMPSON, THE PETITIONER WAS CONVICTED
OF TWO OFFENSES DEFINED BY ORDINANCES OF THE CITY OF LOUISVILLE.  ONE
OF THESE ORDINANCES, PROHIBITING LOITERING, EXPRESSLY ENUMERATED THREE
ELEMENTS OF THE OFFENSE.  THE PROSECUTION INTRODUCED NO EVIDENCE TO
ESTABLISH ANY OF THESE DEFINITELY PRESCRIBED COMPONENTS, WHICH WERE NOT
SUGGESTED TO HAVE, BY VIRTUE OF STATE JUDICIAL INTERPRETATION, ANY
OTHER THAN THEIR PLAIN MEANING.  WE HELD THAT "UNDER THE WORDS OF THE
ORDINANCE ITSELF," THERE WAS NO EVIDENCE TO SUPPORT THE CONVICTION. 

THE OTHER OFFENSE OF WHICH THE PETITIONER IN THOMPSON WAS CONVICTED
WAS "DISORDERLY CONDUCT," NOT AT ALL DEFINED IN THE ORDINANCE.  THE
ONLY EVIDENCE IN THE RECORD RELATING TO CONDUCT WHICH MIGHT CONCEIVABLY
HAVE COME WITHIN THE PROHIBITED SCOPE INDICATED WAS THAT THE PETITIONER
WAS "ARGUMENTATIVE" WITH THE ARRESTING OFFICERS.  WE SAID OF THIS
CONVICTION (362 U.S., AT 206):  "WE ASSUME, FOR WE ARE JUSTIFIED IN
ASSUMING, THAT MERELY 'ARGUING' WITH A POLICEMAN IS NOT, BECAUSE IT
COULD NOT BE, 'DISORDERLY CONDUCT' AS A MATTER OF THE SUBSTANTIVE LAW
OF KENTUCKY.  SEE LANZETTA V. NEW JERSEY, 306 U.S. 451."  IN OTHER
WORDS, WE HELD THAT THE ORDINANCE COULD NOT, FOR WANT OF ADEQUATE
NOTICE, CONSTITUTIONALLY BE CONSTRUED BY THE KENTUCKY COURTS TO COVER
THE ACTIVITY FOR WHICH THE CITY SOUGHT TO PUNISH THE PETITIONER. 

WHERE, AS WAS TRUE OF THE DISORDERLY CONDUCT CHARGE IN THOMPSON,
APPLICATION OF A GENERALLY DRAWN STATE STATUTE OR MUNICIPAL ORDINANCE
TO THE CONDUCT OF A DEFENDANT WOULD REQUIRE A CONSTITUTIONALLY
IMPERMISSIBLE CONSTRUCTION OF THE ENACTMENT, WE ARE NOT BOUND BY THE
STATE COURT'S FINDING THAT THE CONDUCT WAS CRIMINAL.  IN THE CASES NOW
BEFORE US, HOWEVER, THE COURT DOES NOT SUGGEST THAT LOUISIANA'S
DISTURBANCE OF THE PEACE STATUTE WAS TOO VAGUE TO BE CONSTITUTIONALLY
APPLIED TO THE CONDUCT OF THE PETITIONERS.  I THINK WE ARE OBLIGED,
BECAUSE OF THE STATE COURTS' DISPOSITIONS OF THESE CASES, TO HOLD THAT
THERE WAS PRESENTED AT PETITIONERS' TRIALS EVIDENCE OF CRIMINAL CONDUCT
UNDER LOUISIANA LAW.  HERNDON V. LOWRY, 301 U.S. 242, 255. 

THOMPSON V. LOUISVILLE SHOULD BE RECOGNIZED FOR WHAT IT IS, A CASE
INVOLVING A SITUATION WHICH, I THINK IT FAIR TO SAY, WAS UNIQUE IN THE
ANNALS OF THE COURT.  THE CASE IS BOUND TO LEAD US INTO TREACHEROUS
TERRITORY, UNLESS WE APPLY ITS TEACHING WITH THE UTMOST CIRCUMSPECTION,
AND WITH DUE SENSE OF THE LIMITATIONS UPON OUR REVIEWING AUTHORITY. 

THE COURT'S HOLDING ON THIS PHASE OF THE MATTER ALSO SUFFERS FROM
ADDITIONAL INFIRMITIES.  I DO NOT THINK THAT STATE V. SANFORD, THE
CORNERSTONE OF THIS BRANCH OF THE COURT'S OPINION, IS AS REVEALING UPON
THE MEANING OF BREACH OF THE PEACE UNDER LOUISIANA LAW AS THE COURT
WOULD MAKE IT SEEM.  IN THAT CASE THE LOUISIANA SUPREME COURT REVERSED
THE CONVICTIONS, UNDER THE THEN BREACH OF THE PEACE STATUTE, OF FOUR
JEHOVAH'S WITNESSES WHO HAD SOLICITED CONTRIBUTIONS AND DISTRIBUTED
PAMPHLETS IN A LOUISIANA TOWN, WITH AN OPINION WHICH CITED, INTER ALIA,
CANTWELL V. CONNECTICUT, 310 U.S. 296, AND MARTIN V. STRUTHERS, 319
U.S. 141.  REFERENCE WAS MADE TO "THE PROVISIONS OF THE CONSTITUTION OF
THE UNITED STATES GUARANTEEING FREEDOM OF RELIGION, OF THE PRESS AND OF
SPEECH."  203 LA., AT 968, 14 SO. 2D, AT 780.  THE COURT SAID, MOST
CLEARLY, "THE APPLICATION OF THE STATUTE BY THE TRIAL JUDGE TO THE
FACTS OF THIS CASE AND HIS CONSTRUCTION THEREOF WOULD RENDER IT
UNCONSTITUTIONAL UNDER THE ABOVE FEDERAL AUTHORITIES."  203 LA., AT
970, 14 SO. 2D, AT 780-781.  IN ADDITION, THE OPINION NOTED, CONVICTION
UNDER THE STATUTE MIGHT VIOLATE THE LOUISIANA CONSTITUTION "BECAUSE IT
IS WELL-SETTLED THAT NO ACT OR CONDUCT, HOWEVER REPREHENSIBLE, IS A
CRIME IN LOUISIANA, UNLESS IT IS DEFINED AND MADE A CRIME CLEARLY AND
UNMISTAKABLY BY STATUTE."  203 LA., AT 970, 14 SO. 2D, AT 781.  IN THE
CONCLUDING PART OF ITS OPINION THE LOUISIANA SUPREME COURT ALSO SAID
WHAT THIS COURT NOW CONSIDERS TO BE THE SOLE GROUND OF ITS DECISION:
"IT IS OUR OPINION THAT THE STATUTE IS INAPPLICABLE TO THIS CASE
BECAUSE IT APPEARS THAT THE DEFENDANTS DID NOT COMMIT ANY UNLAWFUL ACT
OR PURSUE AN UNLAWFUL OR DISORDERLY COURSE OF CONDUCT WHICH WOULD TEND
TO DISTURB THE PEACE."  203 LA., AT 970, 14 SO. 2D, AT 781. 

THUS, A FULL READING OF SANFORD WILL DISCLOSE THAT THERE WERE AT
LEAST THREE CONSIDERATIONS WHICH LED TO THE RESULT:  (1) THE LIKELIHOOD
THAT A CONTRARY HOLDING WOULD VIOLATE PROVISIONS OF THE FEDERAL
CONSTITUTION RELATING TO RELIGION, SPEECH, AND PRESS UNDER THE
PRINCIPLES DECLARED IN THEN-RECENT DECISIONS OF THIS COURT; (2) THE
POSSIBILITY THAT THE STATUTE WAS TOO VAGUE AND UNCLEAR UNDER THE
LOUISIANA CONSTITUTION ADEQUATELY TO DEFINE THE BOUNDS OF THE CONDUCT
BEING DECLARED CRIMINAL; (3) THE UNFIANESS OF CONVICTING UNDER A
GENERAL BREACH OF THE PEACE STATUTE PERSONS ENGAGED IN SUCH PEACEABLE
RELIGIOUS ACTIVITY. 

THE COURT NOW ISOLATES THIS LAST FACTOR FROM THIS MULTIFACETED
OPINION, AND, USING IT AS AN IMMUTABLE MEASURE OF WHAT LOUISIANA LAW
REQUIRES, DECLARES THAT THE PRESENT CONVICTIONS MUST FALL BECAUSE THE
STANDARD SO UNCLEARLY SET OUT IN SANFORD HAS NOT BEEN MET.  APART FROM
OTHER CONSIDERATIONS ALREADY DISCUSSED, I AM NOT PREPARED TO REST A
CONSTITUTIONAL DECISION ON SO INSECURE A FOUNDATION. 

IT IS FURTHER SIGNIFICANT THAT THE STATE SUPREME COURT'S ORDER
REFUSING TO REVIEW THE PRESENT CASES DOES NOT CITE STATE V. SANFORD,
BUT RATHER RELIES ON ANOTHER EARLIER CASE, TOWN OF PONCHATOULA V.
BATES, 173 LA. 824, 138 SO. 851.  THE BATES DECISION, UPHOLDING THE
CONSTITUTIONALITY OF AN ORDINANCE MAKING IT A CRIME "TO ENGAGE IN A
FIGHT OR IN ANY MANNER DISTURB THE PEACE," DEFINED DISTURBANCE OF THE
PEACE AS "ANY ACT OR CONDUCT OF A PERSON WHICH MOLESTS THE INHABITANTS
IN THE ENJOYMENT OF THAT PEACE AND QUIET TO WHICH THEY ARE ENTITLED, OR
WHICH THROWS INTO CONFUSION THINGS SETTLED, OR WHICH CAUSES EXCITEMENT,
UNREST, DISQUIETUDE, OR FEAR AMONG PERSONS OF ORDINARY, NORMAL
TEMPERAMENT."  173 LA., AT 828, 138 SO., AT 852.  SUCH A DEFINITION
WOULD OF COURSE BRING WITHIN THE COMPASS OF THE STATUTE EVEN PEACEFUL
ACTIVITY, SO LONG AS IT THREW "INTO CONFUSION THINGS SETTLED," OR
CAUSED DISQUIETUDE AMONG ORDINARY MEMBERS OF THE COMMUNITY.  I THINK IT
WAS THAT CONSTRUCTION WHICH THE LOUISIANA SUPREME COURT PLACED UPON THE
BREACH OF THE PEACE STATUTE INVOLVED IN THE CASES NOW BEFORE US.

                                       II. 

THE ALTERNATIVE HOLDING OF THE COURT IN PART II OF ITS OPINION ALSO
STANDS ON UNSOLID FOUNDATIONS.   CONCEDING THAT THIS BREACH OF THE
PEACE STATUTE "MIGHT" BE CONSTRUED TO COVER PEACEFUL CONDUCT CARRIED ON
"IN SUCH A MANNER AS WOULD FORESEEABLY DISTURB OR ALARM THE PUBLIC,"
THE COURT HOLDS THAT THERE WAS NO EVIDENCE THAT PETITIONERS' CONDUCT
TENDED TO DISTURB OR ALARM THOSE WHO WITNESSED THEIR ACTIVITY. 

THERE IS, HOWEVER, MORE TO THESE CASES THAN WHAT PHYSICALLY APPEARS
IN THE RECORD.  IT IS AN UNDISPUTED FACT THAT THE "SIT-IN" PROGRAM, OF
WHICH PETITIONERS' DEMONSTRATIONS WERE A PART, HAD CAUSED CONSIDERABLE
RACIAL TENSION IN VARIOUS STATES, INCLUDING LOUISIANA.  UNDER LOUISIANA
LAW, LA. REV. STAT., 1950, SEC. 15:422, LOUISIANA COURTS MAY TAKE
JUDICIAL NOTICE OF "THE POLITICAL, SOCIAL AND RACIAL CONDITIONS
PREVAILING IN THIS STATE."  STATE V. BESSA, 115 LA. 259, 38 SO. 985. 
THIS COURT HOLDS, NONETHELESS, THAT THE LOUISIANA COURTS COULD NOT,
CONSISTENTLY WITH THE PROCEDURAL GUARANTEES OF THE FOURTEENTH
AMENDMENT, JUDICIALLY NOTICE THE UNDISPUTED FACT THAT THERE WAS RACIAL
TENSION IN AND AROUND BATON ROUGE ON MARCH 28 AND 29, 1960 (THE DATES
OF THESE "SIT-INS"), WITHOUT INFORMING THE PARTIES THAT SUCH NOTICE WAS
BEING TAKEN, AND WITHOUT SPREADING THE SOURCE OF THE INFORMATION ON THE
RECORD.   SUPPORT FOR THIS CONSTITUTIONAL PROPOSITION IS FOUND IN OHIO
BELL TELEPHONE CO. V. PUBLIC UTILITIES COMMISSION, 301 U.S. 292, 302
303.  THE COURT THERE HELD THAT IT WAS REPUGNANT TO THE FOURTEENTH
AMENDMENT FOR A STATE AGENCY TO DEPRIVE THE TELEPHONE COMPANY OF
PROPERTY ON THE BASIS OF RATES SET BY A PRECISE MATHEMATICAL
COMPUTATION DERIVED FROM UNDISCLOSED STATISTICS.  THIS WAS BECAUSE THE
PROCEDURE AFFORDED NO OPPORTUNITY FOR REBUTTAL WITH RESPECT TO THE
UNDERLYING DATA, AND FOR POSSIBLE DEMONSTRATION THAT THE FIGURES SHOULD
NOT BE JUDICIALLY NOTICED, SINCE THEIR SOURCE WAS UNKNOWN AND THE
STATISTICS WERE NOT DISCLOSED TO ANY REVIEWING COURT.  SEE MORGAN, SOME
PROBLEMS OF PROOF (1956), 56. 

THE SITUATION WE HAVE HERE IS QUITE DIFFERENT.  THE EXISTENCE OF
RACIAL TENSIONS, OF WHICH THE LOUISIANA COURTS MUST HAVE TAKEN JUDICIAL
NOTICE IN ORDER TO FIND THAT PETITIONERS' CONDUCT ALARMED OR DISTURBED
THE PUBLIC, WAS NOTORIOUS THROUGHOUT THE COMMUNITY AND, INDEED,
THROUGHOUT THAT PART OF THE UNITED STATES.  THE TRUTH OF THAT
PROPOSITION IS NOT CHALLENGED, NOR IS ANY PARTICULAR AUTHORITY REQUIRED
TO CONFIRM IT.  THIS KIND OF GENERALLY KNOWN CONDITION MAY BE
JUDICIALLY NOTICED BY TRIAL AND APPELLATE COURTS WITHOUT PRIOR WARNING
TO THE PARTIES, SINCE IT DOES NOT REQUIRE ANY FOUNDATION ESTABLISHING
THE ACCURACY OF A SPECIFIC SOURCE OF INFORMATION.  SEE UNIFORM RULES OF
EVIDENCE, 9(2)(C); ALI, MODEL CODE OF EVIDENCE, RULE 802(C); 1 MORGAN,
BASIC PROBLEMS OF EVIDENCE (1954), 9-10.  CF. MILLS V. DENVER TRAMWAY
CORP., 155 F.2D 808 (C.A. 10TH CIR.).  I PERCEIVE NO REASON WHY THAT
PRINCIPLE SHOULD BE CONSIDERED AS APPLYING ONLY IN CIVIL CASES, AND I
AM NOT AWARE OF ANY AMERICAN AUTHORITY WHICH SO HOLDS. 

INDEED, THE FACT OF WHICH I THINK WE MUST CONSIDER JUDICIAL NOTICE
WAS TAKEN IN THIS INSTANCE WAS SO NOTORIOUS THROUGHOUT THE COUNTRY THAT
FAR FROM ITS BEING UNCONSTITUTIONAL FOR A COURT TO TAKE IT INTO
CONSIDERATION, IT WOULD BE QUITE AMISS FOR US NOT TO DEEM THAT THE
LOUISIANA COURTS DID SO ON THEIR OWN INITIATIVE.  SEE, E.G., UNIFORM
RULES OF EVIDENCE, 9(1); CF. NOTE, 12 VA. L. REV. 154 (1925), AND CASES
THERE CITED.  IT MIGHT HAVE BEEN PROCEDURALLY PREFERABLE HAD THE TRIAL
JUDGE ANNOUNCED TO THE PARTIES THAT HE WAS TAKING JUDICIAL NOTICE, AS
IS SUGGESTED IN MODEL CODE OF EVIDENCE, RULE 804.  BUT WE WOULD BE
EXALTING THE SHEEREST OF TECHNICALITIES WERE WE TO HOLD THAT A
CONVICTION IS CONSTITUTIONALLY VOID BECAUSE OF A JUDGE'S FAILURE TO
DECLARE THAT HE HAS NOTICED A COMMON PROPOSITION WHEN, AT NO STAGE IN
THE PROCEEDING, IS IT SUGGESTED THAT THE PROPOSITION MAY BE UNTRUE. 
WHETHER A TRIAL JUDGE NEED NOTIFY THE PARTIES OF HIS INTENTION TO TAKE
JUDICIAL NOTICE OF "ROUTINE MATTERS OF COMMON KNOWLEDGE WHICH  ...  HE
WOULD NOTICE AS A MATTER OF COURSE" IS BEST LEFT TO HIS "REASONABLE
DISCRETION."  MCCORMICK, EVIDENCE (1954), 708.  APPELLATE COURTS HAVE
ALWAYS RESERVED THE AUTHORITY TO NOTICE SUCH COMMONLY KNOWN
PROPOSITIONS AS ARE NEEDED TO SUPPORT THE JUDGMENT OF A LOWER COURT,
EVEN IF NO EXPRESS REFERENCE HAS BEEN MADE BELOW.  SEE COMMENT, 42
MICH. L. REV. 509, 512-513 (1943). 

MOREOVER, IN THIS INSTANCE, THE FACT THAT THE TRIAL COURT HAD TAKEN
JUDICIAL NOTICE OF THE IMPACT OF PETITIONERS' CONDUCT, WHICH INDEED HAD
OBVIOUSLY BEEN ENGAGED IN FOR THE VERY PURPOSE OF PRODUCING AN IMPACT
ON OTHERS IN THIS FIELD OF RACIAL RELATIONS, ALBEIT, I SHALL ASSUME,
WITH THE BEST OF MOTIVES, COULD HARDLY HAVE FAILED TO CROSS THE MINDS
OF PETITIONERS' COUNSEL BEFORE THE TRIAL HAD ENDED.  THEY HOWEVER
NEITHER SOUGHT TO INTRODUCE COUNTERVAILING EVIDENCE ON THAT ISSUE, NOR
HAVE THEY UNDERTAKEN AT ANY STAGE OF THESE PROCEEDINGS, INCLUDING THAT
IN THIS COURT, TO QUESTION THE AVAILABILITY OF JUDICIAL NOTICE ON THIS
ASPECT OF THE STATE'S CASE. 

WERE WE TO FOLLOW THE REASONING OF THE MAJORITY OPINION WHERE IT
WOULD LOGICALLY LEAD, THIS COURT WOULD BE VIOLATING DUE PROCESS EVERY
TIME IT NOTICED A GENERALLY KNOWN FACT WITHOUT FIRST CALLING IN THE
PARTIES TO APPRISE THEM OF ITS INTENTION.  YET WITHOUT ANY SUCH
NOTIFICATION THIS COURT HAS MANY TIMES TAKEN JUDICIAL NOTICE OF WELL
KNOWN ECONOMIC AND SOCIAL FACTS, E.G., ATCHISON, TOPEKA & S.F.R. CO. V.
UNITED STATES, 284 U.S. 248, 260; WEST COAST HOTEL CO. V. PARRISH, 300
U.S. 379, 398-400; HOYT V. FLORIDA, ANTE, P. 57, AT P. 62, AND EVEN OF
THE TENDENCY OF PARTICULAR EPITHETS TO CAUSE A BREACH OF THE PEACE. 
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 574. 

IT IS NO ANSWER TO SAY IN THESE CASES THAT WHILE IT WAS PERMISSIBLE
FOR THE LOUISIANA COURTS TO TAKE JUDICIAL NOTICE OF RACIAL CONDITIONS
GENERALLY, THEY COULD NOT TAKE NOTICE OF THE PARTICULAR CONDITIONS ON
THE PREMISES INVOLVED IN THESE PROSECUTIONS.  IN THE ABSENCE OF
CONTRARY EVIDENCE, IT WAS CERTAINLY NOT CONSTITUTIONALLY IMPERMISSIBLE
FOR THE LOUISIANA COURTS TO CONSIDER THAT THE RACIAL CONDITIONS IN
BATON ROUGE AND IN THE ESTABLISHMENTS WHERE PETITIONERS SAT WERE NOT
DISSIMILAR TO THOSE EXISTING THROUGHOUT THE STATE.  JUDICIAL NOTICE OF
RACIAL CONDITIONS IN A STATE HAS SUFFICIENT PROBATIVE VALUE IN
DETERMINING WHAT WERE THE RACIAL CONDITIONS AT A PARTICULAR LOCATION
WITHIN THE STATE TO WITHSTAND CONSTITUTIONAL ATTACK.  REVERSING THESE
CONVICTIONS FOR WANT OF EVIDENCE OF RACIAL TENSION WOULD IN EFFECT BE
PUTTING THIS COURT INTO THE REALM OF REVIEWING THE SUFFICIENCY OF THE
EVIDENCE TO SUPPORT THESE CONVICTIONS, SOMETHING WHICH BOTH THOMPSON V.
CITY OF LOUISVILLE, SUPRA, AT 199, AND THE COURT'S OPINION IN THE
PRESENT CASES, ANTE, P. 163, RECOGNIZE IS NOT PROPERLY WITHIN OUR
PURVIEW. 

IN MY OPINION, SKIMPY THOUGH THESE RECORDS ARE, THE CONVICTIONS DO
NOT FALL FOR WANT OF EVIDENCE, IN THE CONSTITUTIONAL SENSE. 

      III. 

WERE THERE NO MORE TO THESE CASES, I SHOULD HAVE TO VOTE TO AFFIRM. 
BUT IN LIGHT OF PRINCIPLES ESTABLISHED BY CANTWELL V. CONNECTICUT, 310
U.S. 296, AND CONSISTENTLY SINCE RECOGNIZED, I THINK THE CONVICTIONS
ARE SUBJECT TO OTHER CONSTITUTIONAL INFIRMITIES. 

AT THE OUTSET IT IS IMPORTANT TO FOCUS ON THE PRECISE FACTUAL
SITUATION IN EACH OF THESE CASES.  COMMON TO ALL THREE ARE THE
CIRCUMSTANCES THAT PETITIONERS WERE GIVEN THE INVITATION EXTENDED TO
THE PUBLIC AT LARGE TO PATRONIZE THESE ESTABLISHMENTS; THAT THEY WERE
TOLD THAT THEY COULD BE SERVED FOOD ONLY AT THE NEGRO LUNCH COUNTERS;
THAT THEIR CONDUCT WAS NOT UNRULY OR OFFENSIVE; AND THAT NONE OF THEM
WAS EVER ASKED BY THE OWNERS OR THEIR AGENTS TO LEAVE THE
ESTABLISHMENTS.  WHILE IN BRISCOE, NO. 27, THERE WAS SOME VERY SLIGHT,
BUT IN MY VIEW CONSTITUTIONALLY ADEQUATE, EVIDENCE THAT THOSE
PETITIONERS WERE EXPRESSLY ASKED "TO MOVE" FROM THE "WHITE" LUNCH
COUNTER, (FN4) AND UNDISPUTED EVIDENCE THAT THEY DID NOT DO SO, IN
GARNER, NO. 26, AND HOSTON, NO. 28, THERE WAS NO EVIDENCE WHATEVER OF
ANY EXPRESS REQUEST TO THE PETITIONERS IN THOSE CASES THAT THEY MOVE
FROM THE "WHITE" LUNCH COUNTERS WHERE THEY WERE SITTING. 

NOR DO I THINK THAT ANY SUCH REQUEST IS FAIRLY TO BE IMPLIED FROM THE
FACT THAT PETITIONERS WERE TOLD BY THE MANAGEMENT THAT THEY COULD NOT
BE SERVED FOOD AT SUCH COUNTERS.  THE PREMISES IN BOTH INSTANCES HOUSED
MERCHANDISING ESTABLISHMENTS, A DRUGSTORE IN GARNER, A DEPARTMENT STORE
IN HOSTON, WHICH SOLICITED BUSINESS FROM ALL COMERS TO THE STORES.  I
THINK THE REASONABLE INFERENCE IS THAT THE MANAGEMENT DID NOT WANT TO
RISK LOSING NEGRO PATRONAGE IN THE STORES BY REQUESTING THESE
PETITIONERS TO LEAVE THE "WHITE" LUNCH COUNTERS, PREFERRING TO RELY ON
THE HOPE THAT THE IRRITATIONS OF WHITE CUSTOMERS OR THE FORCE OF CUSTOM
WOULD DRIVE THEM AWAY FROM THE COUNTERS.  (FN5)  THIS VIEW SEEMS THE
MORE PROBABLE IN CIRCUMSTANCES WHEN, AS HERE, THE "SITTERS'" BEHAVIOR
WAS ENTIRELY QUIET AND COURTEOUS, AND, FOR ALL WE KNOW, THE COUNTERS
MAY HAVE BEEN ONLY SPARSELY, IF TO ANY EXTENT, OCCUPIED BY WHITE
PERSONS.  (FN6) 

IN SHORT, I BELIEVE THAT IN THE GARNER AND HOSTON CASES THE RECORDS
SHOULD BE TAKEN AS INDICATING THAT THE PETITIONERS REMAINED AT THE
"WHITE" LUNCH COUNTERS WITH THE IMPLIED CONSENT OF THE MANAGEMENT,
(FN7) EVEN THOUGH A SIMILAR CONCLUSION MAY NOT BE WARRANTED IN THE
BRISCOE CASE.  UNDER THESE CIRCUMSTANCES, APPLYING PRINCIPLES ANNOUNCED
IN CANTWELL, I WOULD HOLD ALL THESE CONVICTIONS OFFENSIVE TO THE
FOURTEENTH AMENDMENT, IN THAT: (1) IN GARNER AND HOSTON PETITIONERS'
CONDUCT, OCCURRING WITH THE MANAGEMENTS' IMPLIED CONSENT, WAS A FORM OF
EXPRESSION WITHIN THE RANGE OF PROTECTIONS AFFORDED BY THE FOURTEENTH
AMENDMENT WHICH COULD IN NO EVENT BE PUNISHED BY THE STATE UNDER A
GENERAL BREACH OF THE PEACE STATUTE; AND (2) IN BRISCOE, WHILE
PETITIONERS'"SITTING," OVER THE MANAGEMENT'S OBJECTION, CANNOT BE
DEEMED TO BE WITHIN THE REACH OF SUCH PROTECTIONS, THEIR CONVICTIONS
MUST NONETHELESS FALL BECAUSE THE LOUISIANA STATUTE, AS THERE APPLIED
(AND A FORTIORI AS APPLIED IN THE OTHER TWO CASES), WAS
UNCONSTITUTIONALLY VAGUE AND UNCERTAIN. 

IN THE CANTWELL CASE A JEHOVAH'S WITNESS HAD BEEN CONVICTED FOR
BREACH OF THE PEACE UNDER A CONNECTICUT STATUTE EMBRACING WHAT WAS
CONSIDERED TO BE THE COMMON-LAW CONCEPT OF THAT OFFENSE.  (FN8)  "THE
FACTS WHICH WERE HELD TO SUPPORT THE CONVICTION  ...  WERE THAT HE
STOPPED TWO MEN IN THE STREET, ASKED, AND RECEIVED, PERMISSION TO PLAY
A PHONOGRAPH RECORD, AND PLAYED THE RECORD 'ENEMIES,' WHICH ATTACKED
THE RELIGION AND CHURCH OF THE TWO MEN, WHO WERE CATHOLICS.  BOTH WERE
INCENSED BY THE CONTENTS OF THE RECORD AND WERE TEMPTED TO STRIKE
CANTWELL (THE DEFENDANT) UNLESS HE WENT AWAY.  ON BEING TOLD TO BE ON
HIS WAY HE LEFT THEIR PRESENCE.  THERE WAS NO EVIDENCE THAT HE WAS
PERSONALLY OFFENSIVE OR ENTERED INTO ANY ARGUMENT WITH THOSE HE
INTERVIEWED."  310 U.S., AT 302-303. 

ACCEPTING THE DETERMINATION OF THE STATE COURTS THAT ALTHOUGH THE
DEFENDANT HIMSELF HAD NOT BEEN DISORDERLY OR PROVOCATIVE, HIS CONDUCT
UNDER CONNECTICUT LAW NONETHELESS CONSTITUTED A BREACH OF THE PEACE
BECAUSE OF ITS TENDENCY TO INFLAME OTHERS, THIS COURT REVERSED. 
STARTING FROM THE PREMISE THAT THE "FUNDAMENTAL CONCEPT OF LIBERTY
EMBODIED IN THE FOURTEENTH AMENDMENT EMBRACES THE LIBERTIES GUARANTEED
BY THE FIRST AMENDMENT," THE COURT FOUND THAT THE DEFENDANT'S
ACTIVITIES FELL WITHIN THE PROTECTION GRANTED TO THE "FREE EXERCISE" OF
RELIGION.  THEN RECOGNIZING THE DANGER TO SUCH LIBERTIES OF "LEAVING TO
THE EXECUTIVE AND JUDICIAL BRANCHES TOO WIDE A DISCRETION" IN THE
APPLICATION OF A STATUTE "SWEEPING IN A GREAT VARIETY OF CONDUCT UNDER
A GENERAL AND INDEFINITE CHARACTERIZATION," THE COURT HELD THAT THE
DEFENDANT'S ACTIVITIES COULD NOT CONSTITUTIONALLY BE REACHED UNDER A
GENERAL BREACH OF THE PEACE STATUTE, BUT ONLY UNDER ONE SPECIFICALLY
AND NARROWLY AIMED AT SUCH CONDUCT.  310 U.S., AT 307-308.  THE COURT
STATED: 

"ALTHOUGH THE CONTENTS OF THE PHONOGRAPH RECORD NOT UNNATURALLY
AROUSED ANIMOSITY, WE THINK THAT, IN THE ABSENCE OF A STATUTE NARROWLY
DRAWN TO DEFINE AND PUNISH SPECIFIC CONDUCT AS CONSTITUTING A CLEAR AND
PRESENT DANGER TO A SUBSTANTIAL INTEREST OF THE STATE, THE PETITIONER'S
COMMUNICATION, CONSIDERED IN THE LIGHT OF THE CONSTITUTIONAL
GUARANTEES, RAISED NO SUCH CLEAR AND PRESENT MENACE TO PUBLIC PEACE AND
ORDER AS TO RENDER HIM LIABLE TO CONVICTION OF THE COMMON LAW OFFENSE
IN QUESTION."   (CITING TO SUCH CASES AS SCHENCK V. UNITED STATES, 249
U.S. 47.)  310 U.S., AT 311. 

I THINK THESE PRINCIPLES CONTROL THE GARNER AND HOSTON CASES.  THERE
WAS MORE TO THE CONDUCT OF THOSE PETITIONERS THAN A BARE DESIRE TO
REMAIN AT THE "WHITE" LUNCH COUNTER AND THEIR REFUSAL OF A POLICE
REQUEST TO MOVE FROM THE COUNTER.  WE WOULD SURELY HAVE TO BE BLIND NOT
TO RECOGNIZE THAT PETITIONERS WERE SITTING AT THESE COUNTERS, WHERE
THEY KNEW THEY WOULD NOT BE SERVED, IN ORDER TO DEMONSTRATE THAT THEIR
RACE WAS BEING SEGREGATED IN DINING FACILITIES IN THIS PART OF THE
COUNTRY. 

SUCH A DEMONSTRATION, IN THE CIRCUMSTANCES OF THESE TWO CASES, IS AS
MUCH A PART OF THE "FREE TRADE IN IDEAS," ABRAMS V. UNITED STATES, 250
U.S. 616, 630 (HOLMES, J., DISSENTING), AS IS VERBAL EXPRESSION, MORE
COMMONLY THOUGHT OF AS "SPEECH."  IT, LIKE SPEECH, APPEALS TO GOOD
SENSE AND TO "THE POWER OF REASON AS APPLIED THROUGH PUBLIC
DISCUSSION," WHITNEY V. CALIFORNIA, 274 U.S. 357, 375 (BRANDEIS, J.,
CONCURRING), JUST AS MUCH AS, IF NOT MORE THAN, A PUBLIC ORATION
DELIVERED FROM A SOAPBOX AT A STREET CORNER.  THIS COURT HAS NEVER
LIMITED THE RIGHT TO SPEAK, A PROTECTED "LIBERTY" UNDER THE FOURTEENTH
AMENDMENT, GITLOW V. NEW YORK, 268 U.S. 652, 666, TO MERE VERBAL
EXPRESSION.  STROMBERG V. CALIFORNIA, 283 U.S. 359; THORNHILL V.
ALABAMA, 310 U.S. 88; WEST VIRGINIA STATE BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624, 633-634.  SEE ALSO N.A.A.C.P. V. ALABAMA, 357
U.S. 449, 460.  IF THE ACT OF DISPLAYING A RED FLAG AS A SYMBOL OF
OPPOSITION TO ORGANIZED GOVERNMENT IS A LIBERTY ENCOMPASSED WITHIN FREE
SPEECH AS PROTECTED BY THE FOURTEENTH AMENDMENT, STROMBERG V.
CALIFORNIA, SUPRA, THE ACT OF SITTING AT A PRIVATELY OWNED LUNCH
COUNTER WITH THE CONSENT OF THE OWNER, AS A DEMONSTRATION OF OPPOSITION
TO ENFORCED SEGREGATION, IS SURELY WITHIN THE SAME RANGE OF
PROTECTIONS.  THIS IS NOT TO SAY, OF COURSE, THAT THE FOURTEENTH
AMENDMENT REACHES TO DEMONSTRATIONS CONDUCTED ON PRIVATE PROPERTY OVER
THE OBJECTION OF THE OWNER (AS IN BRISCOE), JUST AS IT WOULD SURELY NOT
ENCOMPASS VERBAL EXPRESSION IN A PRIVATE HOME IF THE OWNER HAS NOT
CONSENTED.    NO ONE CAN DENY THE INTEREST THAT A STATE HAS IN
PRESERVING PEACE AND HARMONY WITHIN ITS BORDERS.  PURSUANT TO THIS
INTEREST, A STATE LEGISLATURE MAY ENACT A TRESPASS STATUTE, OR A
DISTURBANCE OF THE PEACE STATUTE WHICH EITHER LISTS IN DETAIL THE ACTS
CONDEMNED BY LEGITIMATE STATE POLICY OR PROSCRIBES BREACHES OF THE
PEACE GENERALLY, THUS RELATING THE OFFENSE TO THE ALREADY DEVELOPED
BODY OF COMMON LAW DEFINING THAT CRIME.  OR IT MAY, AS LOUISIANA HAS
DONE, APPEND TO A SPECIFIC ENUMERATION IN A BREACH OF THE PEACE STATUTE
A "CATCH-ALL" CLAUSE TO PROVIDE FOR UNFORESEEN BUT OBVIOUSLY DISRUPTIVE
AND OFFENSIVE BEHAVIOR WHICH CANNOT BE JUSTIFIED, AND WHICH IS NOT
WITHIN THE RANGE OF CONSTITUTIONAL PROTECTION. 

BUT WHEN A STATE SEEKS TO SUBJECT TO CRIMINAL SANCTIONS CONDUCT
WHICH, EXCEPT FOR A DEMONSTRATED PARAMOUNT STATE INTEREST, WOULD BE
WITHIN THE RANGE OF FREEDOM OF EXPRESSION AS ASSURED BY THE FOURTEENTH
AMENDMENT, IT CANNOT DO SO BY MEANS OF A GENERAL AND ALL-INCLUSIVE
BREACH OF THE PEACE PROHIBITION.  IT MUST BRING THE ACTIVITY SOUGHT TO
BE PROSCRIBED WITHIN THE AMBIT OF A STATUTE OR CLAUSE "NARROWLY DRAWN
TO DEFINE AND PUNISH SPECIFIC CONDUCT AS CONSTITUTING A CLEAR AND
PRESENT DANGER TO A SUBSTANTIAL INTEREST OF THE STATE."  CANTWELL V.
CONNECTICUT, SUPRA, AT 311; THORNHILL V. ALABAMA, 310 U.S. 88, 105. 
(FN9)  AND OF COURSE THAT INTEREST MUST BE A LEGITIMATE ONE.  A STATE
MAY NOT "SUPPRESS FREE COMMUNICATION OF VIEWS, RELIGIOUS OR OTHER,
UNDER THE GUISE OF CONSERVING DESIRABLE CONDITIONS."  CANTWELL, SUPRA,
AT 308. 

THESE LIMITATIONS EXIST NOT BECAUSE CONTROL OF SUCH ACTIVITY IS
BEYOND THE POWER OF THE STATE, BUT BECAUSE SOUND CONSTITUTIONAL
PRINCIPLES DEMAND OF THE STATE LEGISLATURE THAT IT FOCUS ON THE NATURE
OF THE OTHERWISE "PROTECTED" CONDUCT IT IS PROHIBITING, AND THAT IT
THEN MAKE A LEGISLATIVE JUDGMENT AS TO WHETHER THAT CONDUCT PRESENTS SO
CLEAR AND PRESENT A DANGER TO THE WELFARE OF THE COMMUNITY THAT IT MAY
LEGITIMATELY BE CRIMINALLY PROSCRIBED.  (FN10) 

THE LOUISIANA LEGISLATURE MADE NO SUCH JUDGMENT BEFORE THE PETITIONERS
IN GARNER AND HOSTON ENGAGED IN THEIR "SIT-IN" ACTIVITY.  IN LIGHT OF
THE CANTWELL CASE, WHOSE REASONING OF COURSE CANNOT BE DEEMED LIMITED
TO "EXPRESSION" TAKING PLACE ON THE PUBLIC STREETS, CF. TERMINIELLO V.
CHICAGO, 337 U.S. 1, NIEMOTKO V. MARYLAND, 340 U.S. 268, 281
(CONCURRING OPINION), LOUISIANA COULD NOT, IN MY OPINION,
CONSTITUTIONALLY REACH THOSE PETITIONERS' CONDUCT UNDER SUBSECTION (7)
THE "CATCH-ALL CLAUSE" - OF ITS THEN EXISTING DISTURBANCE OF THE PEACE
STATUTE.  (FN11)  IN SO CONCLUDING, I INTIMATE NO VIEW AS TO WHETHER
LOUISIANA COULD BY A SPECIFICALLY DRAWN STATUTE CONSTITUTIONALLY
PROSCRIBE CONDUCT OF THE KIND EVINCED IN THESE TWO CASES, OR UPON THE
CONSTITUTIONALITY OF THE STATUTE WHICH THE STATE HAS RECENTLY PASSED. 
(FN12)  I DEAL HERE ONLY WITH THESE TWO CASES, AND THE STATUTE THAT IS
BEFORE US NOW. 

   IV. 

FINALLY, I BELIEVE THAT THE PRINCIPLES OF CANTWELL LEAD TO THE
CONCLUSION THAT THIS GENERAL BREACH OF THE PEACE PROVISION MUST ALSO BE
DEEMED UNCONSTITUTIONAL FOR VAGUENESS AND UNCERTAINTY, AS APPLIED IN
THE CIRCUMSTANCES OF ALL THESE CASES.  AS TO GARNER AND HOSTON THIS
AFFORDS AN ALTERNATIVE GROUND FOR REVERSAL.  AS TO BRISCOE, WHERE THE
EVIDENCE FALLS SHORT OF ESTABLISHING THAT THOSE PETITIONERS REMAINED AT
THE "WHITE" LUNCH COUNTER WITH THE EXPRESS OR IMPLIED CONSENT OF THE
OWNER (NOTES 4, 5, SUPRA), I WOULD REST REVERSAL SOLELY ON THIS
GROUND.  (FN13) 

WHILE CANTWELL WAS NOT EXPLICITLY FOUNDED ON THAT PREMISE, IT SEEMS
TO ME IMPLICIT IN THE OPINION THAT A STATUTE WHICH LEAVES THE COURTS IN
UNCERTAINTY AS TO WHETHER IT WAS INTENDED TO REACH OTHERWISE
CONSTITUTIONALLY PROTECTED CONDUCT MUST BY THE SAME TOKEN BE DEEMED
INADEQUATE WARNING TO A DEFENDANT THAT HIS CONDUCT HAS BEEN CONDEMNED
BY THE STATE.  SEE CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 573-574. 
CF. WINTERS V. NEW YORK, 333 U.S. 507, 509-510; SMITH V. CALIFORNIA,
361 U.S. 147, 151; THOMPSON V. CITY OF LOUISVILLE, 362 U.S. 199, 206. 
SUCH WARNING IS, OF COURSE, A REQUIREMENT OF THE FOURTEENTH AMENDMENT. 
LANZETTA V. NEW JERSEY, 306 U.S. 451, 453. 

THIS CONCLUSION FINDS ADDED SUPPORT IN THE CASES REQUIRING OF STATE
LEGISLATURES MORE SPECIFICITY IN STATUTES IMPINGING ON FREEDOM OF
EXPRESSION THAN MIGHT SUFFICE FOR OTHER CRIMINAL ENACTMENTS.  SEE
WINTERS V. NEW YORK, SUPRA, AT 509-510; SMITH V. CALIFORNIA, SUPRA, AT
151; CF. HERNDON V. LOWRY, 301 U.S. 242, 261-264.  TO THE EXTENT THAT
THIS LOUISIANA STATUTE IS EXPLICIT ON THE SUBJECT OF EXPRESSION IT
PROHIBITS ONLY THAT WHICH IS "UNNECESSARILY LOUD, OFFENSIVE, OR
INSULTING" OR ACTIVITY CARRIED ON "IN A VIOLENT OR TUMULTUOUS MANNER BY
ANY THREE OR MORE PERSONS" (NOTE 1, SUPRA).  NO CHARGE WAS MADE OR
PROVED THAT PETITIONERS' CONDUCT MET ANY OF THOSE CRITERIA.  NOR HAS
THE STATUTE BEEN ELUCIDATED IN THIS RESPECT BEFORE, OR SINCE,
PETITIONERS' CONVICTION, BY ANY DECISION OF THE LOUISIANA COURTS OF
WHICH WE HAVE BEEN ADVISED.  CF. WINTERS V. NEW YORK, SUPRA, AT 514;
TERMINIELLO V. CHICAGO, 337 U.S. 1, 4.  LASTLY, IT IS WORTH OBSERVING
THAT IN STATE V. SANFORD THE LOUISIANA SUPREME COURT SERIOUSLY
QUESTIONED ON THE SCORE OF VAGUENESS THE VALIDITY OF THAT EARLIER
BREACH OF THE PEACE STATUTE UNDER THE STATE CONSTITUTION, AS THERE
APPLIED TO CONDUCT WITHIN THE SAME RANGE OF CONSTITUTIONAL PROTECTION. 
(FN14) 

IN THE ABSENCE OF ANY LOUISIANA STATUTE PURPORTING TO EXPRESS THE
STATE'S OVERRIDING INTEREST IN PROHIBITING PETITIONERS' CONDUCT AS A
CLEAR AND PRESENT DANGER TO THE WELFARE OF THE COMMUNITY, PEACEFUL
DEMONSTRATION ON PUBLIC STREETS, AND ON PRIVATE PROPERTY WITH THE
CONSENT OF THE OWNER, WAS CONSTITUTIONALLY PROTECTED AS A FORM OF
EXPRESSION.  LOUISIANA'S BREACH OF THE PEACE STATUTE DREW NO DISTINCT
LINE BETWEEN PRESUMABLY CONSTITUTIONALLY PROTECTED ACTIVITY AND THE
CONDUCT OF THE PETITIONERS IN BRISCOE, AS A CRIMINAL TRESPASS STATUTE
MIGHT HAVE DONE.  (FN15)  THE FACT THAT IN BRISCOE, UNLIKE GARNER AND
HOSTON, THE MANAGEMENT DID NOT CONSENT TO THE PETITIONERS' REMAINING AT
THE "WHITE" LUNCH COUNTER DOES NOT SERVE TO PERMIT THE APPLICATION OF
THIS GENERAL BREACH OF THE PEACE STATUTE TO THE CONDUCT SHOWN IN THAT
CASE.  FOR THE STATUTE BY ITS TERMS APPEARS TO BE AS APPLICABLE TO
"INCIDENTS FAIRLY WITHIN THE PROTECTION OF THE GUARANTEE OF FREE
SPEECH," WINTERS V. NEW YORK, SUPRA, AT 509, AS TO THAT WHICH IS NOT
WITHIN THE RANGE OF SUCH PROTECTION.  HENCE SUCH A LAW GIVES NO WARNING
AS TO WHAT MAY FAIRLY BE DEEMED TO BE WITHIN ITS COMPASS.  SEE NOTE,
109 U. OF PA. L. REV. 67, 75-76, 99-104 (1960). 

FOR THE FOREGOING REASONS I DISSENT FROM THE OPINION OF THE COURT,
BUT JOIN IN THE JUDGMENT. 

FN1  THE LOUISIANA STATUTE, LA. REV. STAT., 1950, SEC. 14:103, THEN
PROVIDED: 

"DISTURBING THE PEACE IS THE DOING OF ANY OF THE FOLLOWING IN SUCH A
MANNER AS WOULD FORESEEABLY DISTURB OR ALARM THE PUBLIC: 

"(1)  ENGAGING IN A FISTIC ENCOUNTER; OR: 

"(2)  USING OF ANY UNNECESSARILY LOUD, OFFENSIVE, OR INSULTING
LANGUAGE; OR: 

"(3)  APPEARING IN AN INTOXICATED CONDITION; OR: 

"(4)  ENGAGING IN ANY ACT IN A VIOLENT AND TUMULTUOUS MANNER BY ANY
THREE OR MORE PERSONS; OR: 

"(5)  HOLDING OF AN UNLAWFUL ASSEMBLY; OR: 

"(6)  INTERRUPTION OF ANY LAWFUL ASSEMBLY OF PEOPLE; OR: 

"(7)  COMMISSION OF ANY OTHER ACT IN SUCH A MANNER AS TO UNREASONABLY
DISTURB OR ALARM THE PUBLIC. 

"WHOEVER COMMITS THE CRIME OF DISTURBING THE PEACE SHALL BE FINED NOT
MORE THAN ONE HUNDRED DOLLARS, OR IMPRISONED FOR NOT MORE THAN NINETY
DAYS, OR BOTH." 

FN2  AS MR. JUSTICE JACKSON PUT IT IN GRYGER V. BURKE, 334 U.S. 728,
731: 

"WE ARE NOT AT LIBERTY TO CONJECTURE THAT THE TRIAL COURT ACTED UNDER
AN INTERPRETATION OF THE STATE LAW DIFFERENT FROM THAT WHICH WE MIGHT
ADOPT AND THEN SET UP OUR OWN INTERPRETATION AS A BASIS FOR DECLARING
THAT DUE PROCESS HAS BEEN DENIED.  WE CANNOT TREAT A MERE ERROR OF
STATE LAW, IF ONE OCCURRED, AS A DENIAL OF DUE PROCESS; OTHERWISE,
EVERY ERRONEOUS DECISION BY A STATE COURT ON STATE LAW WOULD COME HERE
AS A FEDERAL CONSTITUTIONAL QUESTION." 

FN3  THERE MR. JUSTICE HOLMES SAID OF A CLAIM THAT A STATE COURT WAS
CONSTITUTIONALLY OBLIGED TO FOLLOW ITS OWN PRECEDENTS:  "EVEN IF IT BE
TRUE, AS THE PLAINTIFF IN ERROR SAYS, THAT THE SUPREME COURT OF
COLORADO DEPARTED FROM EARLIER AND WELL-ESTABLISHED PRECEDENTS TO MEET
THE EXIGENCIES OF THIS CASE, WHATEVER MIGHT BE THOUGHT OF THE JUSTICE
OR WISDOM OF SUCH A STEP, THE CONSTITUTION OF THE UNITED STATES IS NOT
INFRINGED.  IT IS UNNECESSARY TO LAY DOWN AN ABSOLUTE RULE BEYOND THE
POSSIBILITY OF EXCEPTION.  EXCEPTIONS HAVE BEEN HELD TO EXIST.  BUT IN
GENERAL THE DECISION OF A COURT UPON A QUESTION OF LAW, HOWEVER WRONG
AND HOWEVER CONTRARY TO PREVIOUS DECISIONS, IS NOT AN INFRACTION OF THE
FOURTEENTH AMENDMENT MERELY BECAUSE IT IS WRONG OR BECAUSE EARLIER
DECISIONS ARE REVERSED." 

FN4  IN BRISCOE, THE WAITRESS WHO HAD SPOKEN TO THE DEFENDANTS
TESTIFIED AT THE TRIAL THAT SHE TOLD THEM "THEY WOULD HAVE TO GO TO THE
OTHER SIDE TO BE SERVED."  IT WAS ONLY WHEN SHE RESPONDED AFFIRMATIVELY
TO A LEADING QUESTION, "AND YOU TOLD THEM YOU COULDN'T SERVE THEM AND
ASKED THEM TO MOVE, IS THAT CORRECT?"  THAT SHE PROVIDED ANY EVIDENCE
AT ALL TO SUPPORT A FINDING THAT THE DEFENDANTS WERE EVEN ASKED BY THE
MANAGEMENT TO MOVE FROM THE "WHITE" LUNCH COUNTER.  CONTRARY TO WHAT
THE TRIAL COURT IN BRISCOE MAY HAVE MEANT WHEN IT SAID THAT THE
DEFENDANTS "WERE REQUESTED TO LEAVE AND THEY REFUSED TO LEAVE" BEFORE
THE POLICE APPEARED, THE WAITRESS' LACONIC REPLY FURNISHED NO EVIDENCE
WHATEVER THAT THE DEFENDANTS WERE REQUESTED TO LEAVE THE
ESTABLISHMENTS. 

FN5  THE OWNER OF THE DRUGSTORE IN GARNER TESTIFIED THAT HIS STORE
PROVIDED EATING "FACILITIES FOR ONLY ONE RACE, THE WHITE RACE," AND
THAT WHEN PETITIONERS SAT DOWN AT THE LUNCH COUNTER HE "ADVISED THEM
THAT WE COULDN'T SERVE THEM."  HE ADMITTED THAT "NEGROES ARE VERY GOOD
CUSTOMERS" IN THE DRUGSTORE SECTION OF THE ESTABLISHMENT.  IN HOSTON,
THE MANAGER OF THE DEPARTMENT STORE REPEATEDLY INSISTED AT THE TRIAL
THAT THE PETITIONERS HAD NOT BEEN "REQUESTED TO MOVE OVER TO THE
COUNTER RESERVED FOR COLORED PEOPLE."  WHEN ASKED, "THEY WEREN'T ASKED
TO GO OVER THERE?"  HE REPLIED, "THEY WERE ADVISED THAT WE WOULD SERVE
THEM OVER THERE."  HE DENIED THAT THE PETITIONERS HAD BEEN "REFUSED"
SERVICE:  "WE DID NOT REFUSE TO SERVE THEM.  I MERELY DID NOT SERVE
THEM AND TOLD THEM THAT THEY WOULD BE SERVED ON THE OTHER SIDE OF THE
STORE  ...  .  AS I STATED BEFORE, WE DID NOT REFUSE TO SERVE THEM.  WE
MERELY ADVISED THEM THEY WOULD BE SERVED ON THE OTHER SIDE OF THE
STORE." 

IN CONTRAST TO WHAT APPEARS IN GARNER AND HOSTON, THE CIRCUMSTANCES
IN BRISCOE SEEM TO ME QUITE DIFFERENT.  THERE IS LITTLE REASON TO
BELIEVE THAT THE MANAGEMENT OF A RESTAURANT IN A GREYHOUND BUS TERMINAL
WOULD BE NEARLY AS CONCERNED WITH OFFENDING NEGRO PATRONS BECAUSE OF
THEIR REFUSAL TO SIT AT THE NEGRO COUNTER AS WOULD THE MANAGEMENT OF A
MERCHANDISING ESTABLISHMENT DEPENDENT ON OTHER TRADE THAN THAT
AVAILABLE AT ITS EATING FACILITIES.  IT MAY WELL HAVE BEEN ASSUMED THAT
PIQUE AT BEING ASKED TO LEAVE A "WHITE" LUNCH COUNTER WOULD READILY
YIELD TO THE NEED OF HAVING TO USE THE BUSES TO GET TO ONE'S
DESTINATION.  FURTHER, FOR ALL THAT APPEARS, THE RESTAURANT AND BUS
COMPANIES, IN THIS INSTANCE, MAY HAVE BEEN ENTIRELY SEPARATE
ENTERPRISES, OR THESE "SITTERS" MAY ONLY HAVE BEEN "EATERS" AND NOT
"TRAVELERS" AS WELL. 

FN6  IN GARNER THERE WAS EVIDENCE THAT "A NUMBER OF CUSTOMERS WERE
SEATED AT THE COUNTER."  IN HOSTON THERE WAS NO EVIDENCE EVEN OF THAT
KIND. 

FN7  THE MANAGER OF THE DEPARTMENT STORE IN HOSTON SEEMED
PARTICULARLY COMPLACENT.  ALTHOUGH TWO NEGRO GIRLS SAT "ADJOINING" HIM
WHILE HE WAS EATING LUNCH AT THE COUNTER, HE FINISHED HIS MEAL BEFORE
CALLING THE POLICE.  HE INSTRUCTED A WAITRESS "TO OFFER SERVICE AT THE
COUNTER ACROSS THE AISLE," BUT NEVER APPROACHED THE PETITIONERS
HIMSELF.  HE TESTIFIED THAT HIS PURPOSE IN CALLING THE POLICE WAS THAT
HE "FEARED THAT SOME DISTURBANCE MIGHT OCCUR." 

FN8  THE CONNECTICUT STATUTE, CONN. GEN. STAT., SEC. 6194 (1930),
PROVIDED: 

"ANY PERSON WHO SHALL DISTURB OR BREAK THE PEACE BY TUMULTUOUS AND
OFFENSIVE CARRIAGE, NOISE OR BEHAVIOR, OR BY THREATENING, TRADUCING,
QUARRELING WITH, CHALLENGING, ASSAULTING OR STRIKING ANOTHER OR SHALL
DISTURB OR BREAK THE PEACE, OR PROVOKE CONTENTION, BY FOLLOWING OR
MOCKING ANY PERSON, WITH ABUSIVE OR INDECENT LANGUAGE, GESTURES OR
NOISE, OR SHALL, BY ANY WRITING, WITH INTENT TO INTIMIDATE ANY PERSON,
THREATEN TO COMMIT ANY CRIME AGAINST HIM OR HIS PROPERTY OR SHALL WRITE
OR PRINT AND PUBLICLY EXHIBIT OR DISTRIBUTE, OR SHALL PUBLICLY EXHIBIT,
POST UP OR ADVERTISE, ANY OFFENSIVE, INDECENT OR ABUSIVE MATTER
CONCERNING ANY PERSON, SHALL BE FINED NOT MORE THAN FIVE HUNDRED
DOLLARS OR IMPRISONED IN JAIL NOT MORE THAN ONE YEAR OR BOTH." 

FN9  COMPARE, FOR EXAMPLE, THE STATUTES UPHELD IN BEAUHARNAIS V.
ILLINOIS, 343 U.S. 250; BREARD V. ALEXANDRIA, 341 U.S. 622; KOVACS V.
COOPER, 336 U.S. 77; VALENTINE V. CHRESTENSEN, 316 U.S. 52; CHAPLINSKY
V. NEW HAMPSHIRE, 315 U.S. 568; COX V. NEW HAMPSHIRE, 312 U.S. 569. 

FN10  MR. JUSTICE ROBERTS, SPEAKING FOR A UNANIMOUS COURT IN
CANTWELL, STATED (310 U.S., AT 307-308): 

"CONVICTION ON THE FIFTH COUNT (DISORDERLY CONDUCT) WAS NOT PURSUANT
TO A STATUTE EVINCING A LEGISLATIVE JUDGMENT THAT STREET DISCUSSION OF
RELIGIOUS AFFAIRS, BECAUSE OF ITS TENDENCY TO PROVOKE DISORDER, SHOULD
BE REGULATED, OR A JUDGMENT THAT THE PLAYING OF A PHONOGRAPH ON THE
STREETS SHOULD IN THE INTEREST OF COMFORT OR PRIVACY BE LIMITED OR
PREVENTED.  VIOLATION OF AN ACT EXHIBITING SUCH A LEGISLATIVE JUDGMENT
AND NARROWLY DRAWN TO PREVENT THE SUPPOSED EVIL, WOULD POSE A QUESTION
DIFFERING FROM THAT WE MUST HERE ANSWER.  SUCH A DECLARATION OF THE
STATE'S POLICY WOULD WEIGH HEAVILY IN ANY CHALLENGE OF THE LAW AS
INFRINGING CONSTITUTIONAL LIMITATIONS.  HERE, HOWEVER, THE JUDGMENT IS
BASED ON A COMMON LAW CONCEPT OF THE MOST GENERAL AND UNDEFINED
NATURE.  THE COURT BELOW HAS HELD THAT THE PETITIONER'S CONDUCT
CONSTITUTED THE COMMISSION OF AN OFFENSE UNDER THE STATE LAW, AND WE
ACCEPT ITS DECISION AS BINDING UPON US TO THAT EXTENT.    "THE OFFENSE
KNOWN AS BREACH OF THE PEACE EMBRACES A GREAT VARIETY OF CONDUCT
DESTROYING OR MENACING PUBLIC ORDER AND TRANQUILITY.  IT INCLUDES NOT
ONLY VIOLENT ACTS BUT ACTS AND WORDS LIKELY TO PRODUCE VIOLENCE IN
OTHERS.  NO ONE WOULD HAVE THE HARDIHOOD TO SUGGEST THAT THE PRINCIPLE
OF FREEDOM OF SPEECH SANCTIONS INCITEMENT TO RIOT OR THAT RELIGIOUS
LIBERTY CONNOTES THE PRIVILEGE TO EXHORT OTHERS TO PHYSICAL ATTACK UPON
THOSE BELONGING TO ANOTHER SECT.  WHEN CLEAR AND PRESENT DANGER OF
RIOT, DISORDER, INTERFERENCE WITH TRAFFIC UPON THE PUBLIC STREETS, OR
OTHER IMMEDIATE THREAT TO PUBLIC SAFETY, PEACE, OR ORDER, APPEARS, THE
POWER OF THE STATE TO PREVENT OR PUNISH IS OBVIOUS.  EQUALLY OBVIOUS IS
IT THAT A STATE MAY NOT UNDULY SUPPRESS FREE COMMUNICATION OF VIEWS,
RELIGIOUS OR OTHER, UNDER THE GUISE OF CONSERVING DESIRABLE
CONDITIONS.  HERE WE HAVE A SITUATION ANALOGOUS TO A CONVICTION UNDER A
STATUTE SWEEPING IN A GREAT VARIETY OF CONDUCT UNDER A GENERAL AND
INDEFINITE CHARACTERIZATION, AND LEAVING TO THE EXECUTIVE AND JUDICIAL
BRANCHES TOO WIDE A DISCRETION IN ITS APPLICATION." 

FN11  IT FOLLOWS, OF COURSE, THAT PETITIONERS' REFUSAL TO ACCEDE TO
THE REQUEST TO LEAVE MADE BY POLICE OFFICERS COULD ALSO NOT
CONSTITUTIONALLY BE PUNISHED UNDER THIS GENERAL STATUTE.  WERE IT
OTHERWISE, THE DETERMINATION WHETHER CERTAIN CONDUCT CONSTITUTES A
CLEAR AND PRESENT DANGER WOULD BE DELEGATED TO A POLICE OFFICER. 
SIMPLY BY ORDERING A DEFENDANT TO CEASE HIS "PROTECTED" ACTIVITY, THE
OFFICER COULD TURN A CONTINUATION OF THAT ACTIVITY INTO A BREACH OF THE
PEACE. 

FN12  AFTER THE INCIDENTS WHICH GAVE RISE TO THESE CASES, THE
LOUISIANA LEGISLATURE PASSED A BILL ADDING TO THE DISTURBANCE OF THE
PEACE STATUTE A SECOND CLAUSE, LA. REV.  STAT., 1950, SEC. 14:103B
(1960 SUPP.), WHICH PROVIDES: 

"B.  ANY PERSON OR PERSONS  ...  WHILE IN OR ON THE PREMISES OF
ANOTHER  ...  ON WHICH PROPERTY ANY STORE, RESTAURANT, DRUG STORE  ...
OR ANY OTHER LAWFUL BUSINESS IS OPERATED WHICH ENGAGES IN SELLING
ARTICLES OF MERCHANDISE OR SERVICES OR ACCOMMODATION TO MEMBERS OF THE
PUBLIC, OR ENGAGES GENERALLY IN BUSINESS TRANSACTIONS WITH MEMBERS OF
THE PUBLIC, WHO SHALL: 

"(1)  PREVENT OR SEEK TO PREVENT, OR INTERFERE OR SEEK TO INTERFERE
WITH THE OWNER OR OPERATOR OF SUCH PLACE OF BUSINESS, OR HIS AGENTS OR
EMPLOYEES, SERVING OR SELLING FOOD AND DRINK  ...  OR: 

"(2)  PREVENT OR SEEK TO PREVENT, OR INTERFERE OR SEEK TO INTERFERE
WITH OTHER PERSONS WHO ARE EXPRESSLY OR IMPLIEDLY INVITED UPON SAID
PREMISES, OR WITH PROSPECTIVE CUSTOMERS COMING INTO OR FREQUENTING SUCH
PREMISES IN THE NORMAL COURSE OF THE OPERATION OF THE BUSINESS
CONDUCTED AND CARRIED ON UPON SAID PREMISES, SHALL BE GUILTY OF
DISORDERLY CONDUCT AND DISTURBING THE PEACE  ... ."  1 LA. ACTS, 1960,
235-236. 

FN13  BECAUSE OF THE ABSENCE OF ANY EVIDENCE IN THE BRISCOE RECORD
REGARDING THE LEGAL RELATIONSHIP BETWEEN THE RESTAURANT AND THE
GREYHOUND BUS TERMINAL IN BATON ROUGE, ON WHOSE PREMISES IT WAS
LOCATED, I WOULD NOT PASS IN THIS CASE ON THE SOLICITOR GENERAL'S
SUGGESTION, MADE AS AMICUS CURIAE, THAT SEGREGATED FACILITIES WERE
PROHIBITED BY SEC. 216(D) OF PART II OF THE INTERSTATE COMMERCE ACT, 49
U.S.C. SEC. 316(D).  SEE BOYNTON V. VIRGINIA, 364 U.S. 454. 

FN14  I DO NOT INTEND TO SUGGEST THAT THE PRESENT LOUISIANA STATUTE,
EITHER ON ITS FACE OR AS IT MIGHT BE APPLIED WITH RESPECT TO CONDUCT
NOT WITHIN THE "LIBERTY" ASSURED BY THE FOURTEENTH AMENDMENT, IS OR
WOULD BE UNCONSTITUTIONAL FOR VAGUENESS.  CF. WINTERS V. NEW YORK,
SUPRA, AT 524-526 (DISSENTING OPINION). 

FN15  THE CRIMINAL TRESPASS STATUTE IN FORCE IN LOUISIANA AT THE TIME
OF PETITIONERS' ACTS PROHIBITED ONLY "UNAUTHORIZED AND INTENTIONAL
TAKING OF POSSESSION" AND "UNAUTHORIZED AND INTENTIONAL ENTRY" ON
ANOTHER'S PROPERTY.  LA. REV. STAT., 1950, SEC. 14:63.  NO ATTEMPT WAS
MADE TO PROSECUTE THE PETITIONERS UNDER THIS LAW.  THE STATUTE HAS
SINCE BEEN AMENDED TO COVER "REMAINING IN PLACES AFTER BEING
FORBIDDEN," 1 LA. ACTS, 1960, 245-248, AND AN ANTI-TRESPASS PROVISION
IS NOW INCLUDED IN THE DISTURBANCE OF THE PEACE STATUTE, 1 LA.  ACTS,
1960, 234. 
..END :














ST. REGIS PAPER CO. V. UNITED STATES 368 U.S. 208 


NO. 47.  ARGUED NOVEMBER 9, 1961 - DECIDED DECEMBER 11, 1961 - 285 F.2D
607, AFFIRMED. 


THIS IS A CIVIL ACTION BY THE UNITED STATES FOR (1) A MANDATORY
INJUNCTION UNDER SEC. 9 OF THE FEDERAL TRADE COMMISSION ACT REQUIRING
PETITIONER TO COMPLY WITH ORDERS OF THE COMMISSION TO FILE SPECIAL
REPORTS CONTAINING SPECIFIED INFORMATION AND DOCUMENTS, AND (2)
STATUTORY FORFEITURE OF $100 FOR EACH DAY PETITIONER WAS IN DEFAULT OF
THOSE ORDERS.  PETITIONER HAD FILED ONLY PART OF THE INFORMATION CALLED
FOR BY THE COMMISSION IN CONNECTION WITH A FORMAL INVESTIGATION TO
DETERMINE WHETHER PETITIONER'S ACQUISITIONS OF STOCK AND ASSETS OF
OTHER CORPORATIONS VIOLATED THE ANTITRUST LAWS.  AMONG OTHER ITEMS, IT
HAD DECLINED TO FURNISH ITS OWN FILE COPIES OF REPORTS FILED WITH THE
CENSUS BUREAU ON THE GROUND THAT THEY WERE CONFIDENTIAL.  THE DISTRICT
COURT FOUND THAT SOME OF THE ORDERS WERE UNENFORCEABLE BECAUSE OF
VAGUENESS AND THAT OTHERS HAD BEEN ANSWERED.  IT DIRECTED PETITIONER TO
ANSWER THE REMAINING ONES, INCLUDING THOSE CALLING FOR COPIES OF CENSUS
REPORTS; BUT IT DID NOT AWARD THE STATUTORY FORFEITURES, BECAUSE SOME
OF THE ORDERS WERE TOO VAGUE TO BE ENFORCED.  THE COURT OF APPEALS
AFFIRMED INSOFAR AS THE DISTRICT COURT ORDERED COMPLIANCE; BUT IT
REVERSED THAT PORTION OF THE DECISION REFUSING TO AWARD THE STATUTORY
FORFEITURES.  HELD: 

1.  THE FEDERAL TRADE COMMISSION IS ENTITLED TO OBTAIN PETITIONER'S
OWN FILE COPIES OF REPORTS SUBMITTED BY PETITIONER TO THE CENSUS
BUREAU.  PP. 215-220. 

(A)  SECTION 8(A) OF THE CENSUS ACT, WHICH GRANTS THE SECRETARY OF
COMMERCE DISCRETION TO FURNISH TO CERTAIN AUTHORITIES DATA TAKEN FROM
INFORMATION FURNISHED THE BUREAU ON CENSUSES OF POPULATION, AGRICULTURE
AND HOUSING, BUT PROVIDES THAT SUCH DATA SHALL NOT BE USED BY THE
RECIPIENT "TO THE DETRIMENT OF THE PERSONS TO WHOM SUCH INFORMATION
RELATES," IS INAPPLICABLE HERE, BECAUSE THE COMMISSION HAS NOT BEEN
FURNISHED ANY INFORMATION BY THE SECRETARY AND THE INFORMATION HERE
INVOLVED DOES NOT RELATE TO THE PARTICULAR CENSUSES COVERED BY THAT

(B)  SECTION 9(A) OF THE CENSUS ACT, WHICH FORBIDS THE USE OF
INFORMATION CONTAINED IN CENSUS REPORTS FOR OTHER THAN STATISTICAL
PURPOSES AND FORBIDS THE IMPROPER PUBLICATION OR DISCLOSURE OF SUCH
INFORMATION, APPLIES ONLY TO THE SECRETARY AND OTHER OFFICERS AND
EMPLOYEES OF THE DEPARTMENT OF COMMERCE.  IT DOES NOT GENERALLY
PROHIBIT THE USE OF SUCH INFORMATION PER SE.  PP. 215-219. 

(C)  BY VOLUNTARILY SUBMITTING LIKE DATA TO THE FEDERAL TRADE
COMMISSION DURING THIS INVESTIGATION, PETITIONER DID NOT WAIVE ITS
CLAIM THAT ITS FILE COPIES OF REPORTS TO THE CENSUS BUREAU ARE
CONFIDENTIAL.  P. 217. 

(D)  THE ASSURANCES OF CONFIDENTIALITY BY THE PRESIDENT AND THE
CENSUS BUREAU ARE NOT SUFFICIENT TO EXTEND THE COVERAGE OF SEC. 9(A). 
PP. 217-219. 

(E)  THE FACT THAT PETITIONER FURNISHED CERTAIN INFORMATION TO THE
CENSUS BUREAU DOES NOT RELIEVE IT FROM FURNISHING THE SAME INFORMATION
TO THE FEDERAL TRADE COMMISSION, SINCE SEC. 132 OF THE CENSUS ACT
PROVIDES THAT NOTHING THEREIN CONTAINED "SHALL BE DEEMED TO REVOKE OR
IMPAIR THE AUTHORITY OF ANY OTHER FEDERAL AGENCY WITH REFERENCE TO THE
COLLECTION OR RELEASE OF INFORMATION."  PP. 219-220. 

2.  THE FORFEITURE IMPOSED BY SEC. 10 OF THE FEDERAL TRADE COMMISSION
ACT FOR FAILURE TO FILE "ANY ANNUAL OR SPECIAL REPORT" IS APPLICABLE,
ALTHOUGH THE REQUESTED REPORT IS TO INCLUDE "ANSWERS IN WRITING TO
SPECIFIC QUESTIONS."  PP. 220-223. 

3.  NOTWITHSTANDING THE FACT THAT THE DISTRICT COURT HELD THAT THE
COMMISSION'S ORDERS WERE "PARTIALLY DEFECTIVE" AND DECREED ONLY PARTIAL
COMPLIANCE, FORFEITURE OCCURRED BECAUSE PETITIONER FAILED TO COMPLY
WITH THE VALID REQUESTS; AND THE SINGLE DAILY PENALTY UNDER SEC. 10
BEGAN TO RUN 30 DAYS AFTER NOTICE OF DEFAULT ON THE FIRST SET OF THE
COMMISSION'S ORDERS, AND IT RUNS UNTIL THE DATE OF THE STAY GRANTED BY
THIS COURT.  PP. 223-225. 

(A)  PARTIAL INVALIDITY OF THE COMMISSION'S ORDERS DID NOT PREVENT
APPLICATION OF THE FORFEITURE PROVISION, SINCE PETITIONER DEFIED LARGE
PARTS OF THE ORDERS INSTEAD OF OBTAINING A SEPARATE JUDICIAL
DETERMINATION OF THE VALIDITY OF THE ORDERS.  P. 224. 

(B)  SECTION 6(C) OF THE ADMINISTRATIVE PROCEDURE ACT AUTHORIZED THE
PROCEDURE THAT THE DISTRICT COURT FOLLOWED IN ORDERING PARTIAL
COMPLIANCE INSTEAD OF STRIKING THE ENTIRE ORDERS AND REQUIRING THE
COMMISSION TO ISSUE NEW ONES.  PP. 224-225. 

(C)  IN DIRECTING PARTIAL COMPLIANCE, THE DISTRICT COURT DID NOT
TREAT THOSE ITEMS FOUND ENFORCEABLE AS SUBPOENAS AND THEREFORE SUBJECT
SOLELY TO CONTEMPT ACTION.  P. 225. 

(D)  ONCE THE COURT OF APPEALS HELD THAT THE DEFAULT WAS WITHIN THE
FORFEITURE PROVISION OF SEC. 10, ITS PENALTIES ACCRUED, AND IT WAS NOT
NECESSARY TO REMAND THE CASE TO THE DISTRICT COURT FOR DETERMINATION OF
WHETHER THE FORFEITURE SHOULD APPLY.  P. 225. 

4.  THE PETITIONER, NOT HAVING SOUGHT A JUDICIAL DETERMINATION OF THE
VALIDITY OF THE COMMISSION'S ORDERS OR A STAY ONCE THIS LITIGATION HAD
BEGUN, CANNOT NOW SAY IT WAS DENIED DUE PROCESS BECAUSE IT HAD NO
OPPORTUNITY TO PREVENT THE RUNNING OF THE FORFEITURES PENDING A
JUDICIAL TEST OF THE VALIDITY OF THE ORDERS.  PP. 225-227. 

ST. REGIS PAPER CO. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PURSUANT TO SEC. 6(B) OF THE FEDERAL TRADE COMMISSION ACT, (FN1) THE
COMMISSION ISSUED ORDERS DIRECTING THE PETITIONER AND CORPORATIONS
ACQUIRED BY IT TO SUBMIT VARIOUS REPORTS.  PETITIONER FAILED TO FURNISH
ALL OF THE REQUESTED INFORMATION, AND THE UNITED STATES AT THE REQUEST
OF THE COMMISSION BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT
SEEKING (1) A MANDATORY INJUNCTION TO COMPEL COMPLIANCE WITH ALL OF THE
ORDERS (FN2) AND (2) STATUTORY FORFEITURE OF $100 FOR EVERY DAY
PETITIONER WAS IN DEFAULT OF THOSE ORDERS DIRECTED SPECIFICALLY TO IT.
(FN3) 

THE DISTRICT COURT FOUND THAT SOME OF THE REQUESTS WERE UNENFORCEABLE
BECAUSE OF VAGUENESS AND THAT OTHERS HAD BEEN ANSWERED EITHER
SPECIFICALLY OR BY REFERENCE TO MATERIALS PREVIOUSLY FURNISHED. 
PETITIONER WAS DIRECTED TO ANSWER THE REMAINING ITEMS, INCLUDING THOSE
CALLING FOR FILE COPIES OF CENSUS REPORTS.  HOWEVER, BECAUSE SOME OF
THE REQUESTS WERE TOO VAGUE TO BE ENFORCED, THE DISTRICT COURT DID NOT
AWARD THE STATUTORY FORFEITURES.  181 F. SUPP. 862.  THE COURT OF
APPEALS AFFIRMED INSOFAR AS THE DISTRICT COURT ORDERED COMPLIANCE, BUT
REVERSED THAT PORTION OF THE DECISION REFUSING TO AWARD THE STATUTORY
FORFEITURES.  285 F.2D 607.  WE GRANTED A LIMITED WRIT OF CERTIORARI
BECAUSE OF A CONFLICT IN THE CIRCUITS ON THE QUESTION OF COMPULSORY
PRODUCTION OF THE COPIES OF CENSUS REPORTS AND THE GENERAL IMPORTANCE
OF CERTAIN OTHER QUESTIONS IN THE ADMINISTRATION OF THE INVESTIGATORY
PROVISIONS OF THE FEDERAL TRADE COMMISSION ACT.  365 U.S. 857.  ON
MOTION OF PETITIONER, WE ALSO GRANTED A STAY TOLLING THE FURTHER
RUNNING AND ACCUMULATION OF FORFEITURES AWAITING OUR DECISION.  WE NOW
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

PETITIONER CONTENDS THAT IT CANNOT LAWFULLY BE REQUIRED TO PRODUCE
COPIES OF STATUTORY REPORTS MADE BY IT TO THE CENSUS BUREAU BECAUSE OF
THEIR CONFIDENTIAL NATURE.  THE REMAINDER OF THE INQUIRIES FOUND
ENFORCEABLE BY THE DISTRICT COURT ARE NOT NOW CONTESTED BY THE
PETITIONER.  AS TO THE FORFEITURES, PETITIONER ADVANCES SEVERAL
ARGUMENTS:  (1) THE STATUTORY FORFEITURE OF SEC. 10 IS NOT APPLICABLE
BECAUSE IT APPLIES ONLY TO A FAILURE TO FURNISH "REPORTS" WHILE THE
INQUIRIES DIRECTED TO PETITIONER CALLED FOR ANSWERS TO SPECIFIC
QUESTIONS; (2) NO FORFEITURES CAN BE IMPOSED BECAUSE THE ORDERS WERE
ONLY PARTIALLY ENFORCEABLE; AND (3) IT IS A DENIAL OF DUE PROCESS TO
ASSESS PENALTIES FOR FAILURE TO OBEY ORDERS DURING A TIME PETITIONER
WAS WITHOUT REMEDY TO TEST THEIR VALIDITY. 

 I. 

THE CONTROVERSY CULMINATING IN THIS LITIGATION HAD ITS INCEPTION IN
SEPTEMBER 1956.  AT THAT TIME THE COMMISSION REQUESTED PETITIONER TO
FURNISH VOLUNTARILY INFORMATION CONCERNING CERTAIN OF ITS CORPORATE
ACQUISITIONS TO ENABLE THE COMMISSION TO DETERMINE WHETHER THERE HAD
BEEN ANY VIOLATIONS OF THE ANTITRUST LAWS.  A YEAR LATER, HAVING FAILED
TO OBTAIN THE BULK OF THE REQUESTS, THE COMMISSION SERVED A SUBPOENA
DUCES TECUM ON PETITIONER.  IT COVERED SOMEWHAT THE SAME INFORMATION AS
WAS PREVIOUSLY REQUESTED BUT, IN ADDITION, REQUIRED SIMILAR DATA
CONCERNING THREE MORE CORPORATE ACQUISITIONS EFFECTED IN THE INTERIM. 
IN DUE TIME PETITIONER FULLY COMPLIED WITH THE SUBPOENA, AND THE
HEARING BEFORE THE EXAMINER WAS CONCLUDED.  AFTER REVIEWING THE
MATERIAL, HOWEVER, THE COMMISSION FOUND THAT IT NEEDED ADDITIONAL
INFORMATION AND IN JUNE 1958 REQUESTED PETITIONER'S COUNSEL TO FURNISH
IT.  A RUNNING EXCHANGE OF CORRESPONDENCE BETWEEN PETITIONER'S COUNSEL
AND THE COMMISSION'S STAFF FOLLOWED.  COUNSEL CONTENDED, INTER ALIA,
THAT NO ADDITIONAL INFORMATION WAS NEEDED AND REQUESTED A STATEMENT OF
NECESSITY THEREFOR.  UPON COUNSEL'S INSISTENCE, THREE SEPARATE LEVELS
OF AUTHORITY IN THE COMMISSION, FROM THE LOCAL ATTORNEY IN NEW YORK
CITY TO THE DIRECTOR OF THE BUREAU OF INVESTIGATION IN WASHINGTON,
EXPLAINED THE NEED FOR THE INFORMATION, ADVISED THAT THE REQUEST
THEREFOR HAD BEEN FULLY AUTHORIZED AND REQUESTED PETITIONER TO COMPLY
THEREWITH.  THIS DISCUSSION CONTINUED FOR OVER SIX MONTHS DURING WHICH
TIME PETITIONER FURNISHED ONLY TWO DOCUMENTS OF THE MANY REQUESTED.  ON
JANUARY 6, 1959, THE COMMISSION INSTIGATED A FORMAL INVESTIGATION OF
THE ACQUISITIONS MADE BY PETITIONER DURING THE PRECEDING FIVE YEARS. 
PURSUANT TO THIS INVESTIGATION THE COMMISSION ISSUED SIX ORDERS
REQUIRING THE FILING WITHIN 30 DAYS OF "SPECIAL REPORTS" WHICH WERE TO
CONTAIN SPECIFIED INFORMATION AND DOCUMENTS.  ON MOTION OF PETITIONER,
THE COMMISSION TEMPORARILY SUSPENDED THESE ORDERS WHILE IT CONSIDERED
PETITIONER'S MOTION THAT THEY BE VACATED.  ON MAY 6, 1959, THE MOTION
TO VACATE WAS DENIED, AND PETITIONER WAS DIRECTED TO COMPLY BY MAY 28,
1959.  ON JUNE 4, 1959, THE COMMISSION BROADENED ITS INVESTIGATION TO
COVER TWO CORPORATE ACQUISITIONS BY PETITIONER OCCURRING AFTER THE
INSTIGATION OF THE FORMAL INVESTIGATION.  ACCORDINGLY THREE MORE ORDERS
REQUIRING "SPECIAL REPORTS" WERE ISSUED.  UPON PETITIONER'S FAILURE TO
COMPLY WITH EITHER SET OF ORDERS, NOTICES OF DEFAULT WERE SERVED ON
JUNE 20, 1959, AND JULY 24, 1959, RESPECTIVELY.  THIS COMPLAINT WAS
FILED ON SEPTEMBER 15, 1959, THREE YEARS AFTER THE INQUIRY WAS OPENED. 
THE COMPLAINT SOUGHT A MANDATORY INJUNCTION WHICH WOULD COMPEL
PETITIONER TO FILE WITH THE COMMISSION THE "SPECIAL REPORTS" SOUGHT BY
ALL NINE ORDERS.  HOWEVER, FORFEITURES WERE CLAIMED ONLY FOR
PETITIONER'S FAILURE TO RESPOND TO ORDERS NUMBERED 1 AND 7, WHICH WERE
DIRECTED SPECIFICALLY TO PETITIONER.  THE OTHER SEVEN ORDERS HAD BEEN
DIRECTED TO CORPORATIONS ACQUIRED BY PETITIONER RATHER THAN TO IT.

                                        II. 

AMONG THE ITEMS ORDERED ENFORCED AND WITH WHICH THE PETITIONER STILL
REFUSES TO COMPLY ARE REQUESTS FOR FILE COPIES OF CERTAIN REPORTS
PREVIOUSLY MADE TO THE CENSUS BUREAU.  THE PETITIONER CLAIMS EACH OF
THESE TO BE CONFIDENTIAL.  THERE IS A CONFLICT BETWEEN THE COURTS OF
APPEAL ON THE POINT.  (FN4)  HERE BOTH THE DISTRICT COURT AND THE COURT
OF APPEALS HAVE HELD THESE FILE COPIES NOT RESTRICTED, AND WITH THIS
CONCLUSION WE AGREE. 

PETITIONER'S CLAIM IS BASED ON SECS. 8 AND 9(A) OF THE CENSUS ACT, 13
U.S.C. SECS. 8-9(A), AND ASSURANCES OF CONFIDENTIALITY BY THE
GOVERNMENT.  IT CAN BE NOTED IMMEDIATELY THAT SEC. 8 DOES NOT IN ANY
WAY SUPPORT PETITIONER'S POSITION.  THIS SECTION GRANTS THE SECRETARY
OF COMMERCE THE DISCRETION TO FURNISH TO NAMED AUTHORITIES DATA TAKEN
FROM INFORMATION FURNISHED THE CENSUS BUREAU ON CENSUSES OF POPULATION,
AGRICULTURE AND HOUSING.  SUBSECTION (C) THEREOF PROVIDES THAT WHEN THE
SECRETARY FURNISHES SUCH DATA IT SHALL "IN NO CASE" BE USED BY THE
RECIPIENT "TO THE DETRIMENT OF THE PERSONS TO WHOM SUCH INFORMATION
RELATES."  NOT ONLY HAS THE COMMISSION NOT BEEN FURNISHED ANY
INFORMATION BY THE SECRETARY, BUT THE INFORMATION INVOLVED DOES NOT
RELATE TO THE PARTICULAR CENSUSES COVERED BY THE SECTION, AND SO THIS

THE PROHIBITIONS OF SEC. 9(A) APPLY TO THE SECRETARY, AND OTHER
OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF COMMERCE.  EACH OF THEM IS
PROHIBITED FROM USING THE INFORMATION SUPPLIED FOR OTHER THAN
STATISTICAL PURPOSES; AND FROM MAKING ANY PUBLICATION THEREOF WHEREIN
THE NAME OR IDENTITY OF THOSE FURNISHING INFORMATION IS REVEALED; AND,
FINALLY, FROM PERMITTING ANYONE OUTSIDE OF THE EMPLOY OF THE DEPARTMENT
OF COMMERCE TO "EXAMINE THE INDIVIDUAL REPORTS" FILED.  (FN5)  THE FORM
OF THE REPORT PROVIDED BY THE CENSUS BUREAU IS MARKED "CONFIDENTIAL"
AND IN ADDITION STATES THAT "IT CANNOT BE USED FOR PURPOSES OF
TAXATION, INVESTIGATION OR REGULATION."  (FN6)  THE BUREAU ALSO
FURNISHES THE REPORTING CORPORATIONS A COPY OF THIS FORM, SUCH AS THE
ONE INVOLVED HERE.  THE COPIES ARE MARKED "KEEP THIS COPY FOR YOUR
FILES," AND THE BUREAU IS SAID TO HAVE ADVISED REPORTING COMPANIES THAT
THEY ARE CONFIDENTIAL.  IT ALSO APPEARS THAT A PRESIDENTIAL
PROCLAMATION ADMONISHED REPORTING COMPANIES THAT "THE CENSUS HAS
NOTHING TO DO  ...  WITH THE ENFORCEMENT OF ANY NATIONAL, STATE, OR
LOCAL LAW OR ORDINANCE.  THERE NEED BE NO FEAR THAT ANY DISCLOSURE WILL
BE MADE REGARDING ANY INDIVIDUAL PERSON OR HIS AFFAIRS.  FOR THE DUE
PROTECTION OF THE RIGHTS AND INTERESTS OF THE PERSONS FURNISHING
INFORMATION EVERY EMPLOYEE OF THE CENSUS BUREAU IS PROHIBITED, UNDER
HEAVY PENALTY, FROM DISCLOSING ANY INFORMATION WHICH MAY THUS COME TO
HIS KNOWLEDGE."  (FN7)  PETITIONER ALSO RELIES UPON AN OPINION OF THE
ATTORNEY GENERAL, 36 OP. ATTY. GEN. 362 (1930). 

SIMILAR CONTENTIONS WERE CONSIDERED BY THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT IN FEDERAL TRADE COMM'N V. DILGER, 276 F.2D 739 (1960),
WHERE IT WAS HELD THAT THESE "ASSURANCES OF CONFIDENTIALITY AND
PROTECTION CONSTITUTE A PLEDGE OF GOOD FAITH ON THE PART OF THE
CONGRESS, THE PRESIDENT AND THE DEPARTMENT OF COMMERCE  ...  .  THE
UNITED STATES HAS GIVEN ITS WORD AND SHOULD BE PERMITTED TO KEEP IT." 
276 F.2D, AT 744.  IT CONCLUDES THAT SINCE THE COMMISSION CANNOT OBTAIN
THE ORIGINAL IT SHOULD NOT BE PERMITTED "TO DO INDIRECTLY THAT WHICH IT
CANNOT DO DIRECTLY."  ID., AT 743. 

THE SOLICITOR GENERAL CONTENDS THAT FOR THE PURPOSES OF THIS CASE
PETITIONER HAS WAIVED THE POINT BY VOLUNTARILY SUBMITTING LIKE DATA TO
THE COMMISSION DURING ITS INVESTIGATION HEREIN.  WE CANNOT AGREE. 
REACHING THE MERITS OF THE ISSUE HE POINTS OUT THAT THE GOVERNMENT
AGENCIES ARE AT LOGGERHEADS ON THE PROBLEM, THE DEPARTMENT OF COMMERCE,
CENSUS BUREAU AND THE BUREAU OF THE BUDGET BELIEVE THAT THE COPIES ARE
NOT SUBJECT TO LEGAL PROCESS, WHILE THE FEDERAL TRADE COMMISSION AND
THE ANTITRUST DIVISION OF THE DEPARTMENT OF JUSTICE, WHICH FILED THIS
SUIT, CONTEND TO THE CONTRARY.  THE SOLICITOR GENERAL, "FULLY
RECOGNIZING THE DELICATE BALANCE OF OPPOSING CONSIDERATIONS," HAS
CONCLUDED "ON BALANCE" THAT THE COPIES ARE NOT SUBJECT TO COMPULSIVE
PRODUCTION.  AS HAS BEEN NOTED, WE DO NOT AGREE. 

AS WE HAVE SEEN, THE PROHIBITIONS AGAINST DISCLOSURE CONTAINED IN
SEC. 9 RUN ONLY AGAINST THE OFFICIALS RECEIVING SUCH INFORMATION AND DO
NOT PURPORT TO GENERALLY CLOTHE CENSUS INFORMATION WITH SECRECY.  THE
SOLICITOR GENERAL ADMITS THAT "LITERALLY CONSTRUED" THE RESTRICTIONS OF
THE STATUTE GO NO FURTHER.  BUT HE INSISTS THAT SINCE THE PURPOSE OF
THE STATUTE IS TO ENCOURAGE THE FREE AND FULL SUBMISSION OF STATISTICAL
DATA TO THE BUREAU, THIS CAN BE ACCOMPLISHED ONLY THROUGH THE CREATION
OF A CONFIDENTIAL RELATIONSHIP WHICH WILL EXTEND THE PRIVILEGE TO THE
PETITIONER AND LIKE REPORTING COMPANIES.  WE DO NOT BELIEVE THAT THE
LANGUAGE OF THE PRESIDENT, SUPRA, GIVES THE STATUTE THE MEANING CLAIMED
FOR IT; NOR CAN THE LEGEND ON THE CENSUS BUREAU FORMS OR ITS ADVICE TO
REPORTING COMPANIES EXTEND THE COVERAGE OF THE ACT.  CF. UNITED STATES
V. CALIFORNIA, 332 U.S. 19, 39-40 (1947); UNITED STATES V. STEWART, 311
U.S. 60, 70 (1940); UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S.
150, 225-227 (1940).  WE FULLY REALIZE THE IMPORTANCE TO THE PUBLIC OF
THE SUBMISSION OF FREE AND FULL REPORTS TO THE CENSUS BUREAU, BUT WE
CANNOT REWRITE THE CENSUS ACT.  IT DOES NOT REQUIRE PETITIONER TO KEEP
A COPY OF ITS REPORT NOR DOES IT GRANT COPIES OF THE REPORT NOT IN THE
HANDS OF THE CENSUS BUREAU AN IMMUNITY FROM LEGAL PROCESS.  OURS IS THE
DUTY TO AVOID A CONSTRUCTION THAT WOULD SUPPRESS OTHERWISE COMPETENT
EVIDENCE UNLESS THE STATUTE, STRICTLY CONSTRUED, REQUIRES SUCH A
RESULT.  THAT THIS STATUTE DOES NOT DO.  CONGRESS DID NOT PROHIBIT THE
USE OF THE REPORTS PER SE BUT MERELY RESTRICTED THEIR USE WHILE IN THE
HANDS OF THOSE PERSONS RECEIVING THEM, I.E., THE GOVERNMENT OFFICIALS. 
INDEED, WHEN CONGRESS HAS INTENDED LIKE REPORTS NOT TO BE SUBJECT TO
COMPULSORY PROCESS IT HAS SAID SO.  SEE 45 U.S.C. SEC. 41, (FN8) 49
U.S.C. SEC. 320(F).  (FN9) MOREOVER, ALTHOUGH TAX RETURNS, LIKE THESE
CENSUS REPORTS, ARE MADE CONFIDENTIAL WITHIN THE GOVERNMENT BUREAU,
INTERNAL REVENUE CODE OF 1954, SECS. 6103, 7213(A), COPIES IN THE HANDS
OF THE TAXPAYER ARE HELD SUBJECT TO DISCOVERY.  (FN10)  LIKEWISE THE
CRIMINAL CODE, 18 U.S.C. SEC. 1905, (FN11) PROHIBITS FEDERAL EMPLOYEES
GENERALLY FROM DISCLOSING TRADE SECRETS AND OTHER BUSINESS DATA
RECEIVED IN THE COURSE OF THEIR OFFICIAL DUTIES, BUT THE SAME
INFORMATION IS OBTAINABLE FROM THE REPORTING COMPANY'S FILES OR
PERSONNEL BY JUDICIAL PROCESS. 

THIS CONCLUSION IS BUTTRESSED BY THE FACT THAT THOUGH PETITIONER
FURNISHES THE REQUIRED REPORTS TO THE CENSUS BUREAU IT IS NOT RELIEVED
FROM FURNISHING THE SAME INFORMATION TO THE FEDERAL TRADE COMMISSION. 
THIS IS MADE CERTAIN BY AN ACT OF CONGRESS SPECIFICALLY PROVIDING THAT
NOTHING IN THE CENSUS ACT "SHALL BE DEEMED TO REVOKE OR IMPAIR THE
AUTHORITY OF ANY OTHER FEDERAL AGENCY WITH RESPECT TO THE COLLECTION OR
RELEASE OF INFORMATION."  13 U.S.C. SEC. 132.  IT APPEARS, THEREFORE,
THAT THROUGH THE USE OF SPECIAL REPORTS THE COMMISSION COULD REQUIRE
THE PETITIONER TO SUPPLY THE IDENTICAL INFORMATION FROM ITS FILES. 
HENCE BY SECURING THE RETAINED FILE COPY THE COMMISSION IS MERELY
OBTAINING IN A FORM ALREADY PREPARED THAT INFORMATION WHICH IT HAS THE
POWER TO REQUIRE PETITIONER TO FURNISH FROM ITS RECORDS. 
                         III. 

PETITIONER NEXT CLAIMS THAT THE ORDERS REQUIRED "ANSWERS IN WRITING
TO SPECIFIC QUESTIONS" UNDER SEC. 6(B) AS DISTINGUISHED FROM THE
"SPECIAL REPORTS" ALSO AUTHORIZED BY THAT SECTION, BUT THAT THE
FORFEITURE PROVISION OF SEC. 10 PENALIZING THE FAILURE TO FILE "ANY
ANNUAL OR SPECIAL REPORTS" DOES NOT INCLUDE THE PHRASE "ANSWERS IN
WRITING TO SPECIFIC QUESTIONS" AND IS, THEREFORE, INAPPLICABLE.  WE DO
NOT AGREE.    THE COMMISSION CONTENDS THAT ITS ORDERS HERE IN FACT
CALLED FOR INFORMATION IN THE NATURE OF "SPECIAL REPORTS," AND IT SO
DESIGNATED EACH OF THE NINE ORDERS AT THE TIME OF THEIR ISSUANCE. 
EXAMINATION OF THE ORDERS BY NO MEANS PROVES THE COMMISSION TO BE IN
ERROR, FOR IT APPEARS THAT PRACTICALLY ALL OF THE REQUESTS CALLED FOR
THE FURNISHING OF STATISTICAL OR LIKE INFORMATION, DETAILS OF
ORGANIZATION AND OPERATION, SPECIFIC DOCUMENTS, ETC.  AS THE COURT OF
APPEALS STATED, "THE CUMULATIVE EFFECT OF ALL THE QUESTIONS IS
SUBSTANTIALLY THAT OF A REQUEST FOR A REPORT."  285 F.2D, AT 615. 

WHILE THIS IS TRUE, IT CANNOT BE DENIED THAT IN MANY INSTANCES
SPECIFIC INFORMATION WAS REQUESTED AND "ANSWERS IN WRITING TO SPECIFIC
QUESTIONS" WERE CONTEMPLATED.  BUT THIS DOES NOT DISQUALIFY THE
MATERIALS FROM BEING SPECIAL REPORTS, FOR THE STATUTORY REFERENCE TO
"ANSWERS IN WRITING TO SPECIFIC QUESTIONS" MERELY ELABORATES THE POWER
TO REQUIRE SPECIAL REPORTS. 

THE SOURCE OF THE COMMISSION'S POWER, AS WE HAVE NOTED, IS SEC. 6(B),
SEE NOTE 1, SUPRA, WHICH AUTHORIZES THE COMMISSION TO ORDER
CORPORATIONS TO FILE "ANNUAL OR SPECIAL, OR BOTH ANNUAL AND SPECIAL,
REPORTS OR ANSWERS IN WRITING TO SPECIFIC QUESTIONS."  SINCE THE
FORFEITURE PROVISION OF SEC. 10, SEE NOTE 3, SUPRA, ONLY REFERS TO "ANY
ANNUAL OR SPECIAL REPORT," PETITIONER ARGUES THAT FORFEITURE IS
INAPPLICABLE TO A CORPORATION FAILING TO GIVE "ANSWERS IN WRITING TO
SPECIFIC QUESTIONS," WHICH IT CONTENDS IS A SEPARATE POWER QUITE
DISTINCT FROM THE POWER TO ORDER REPORTS.  BUT IF THIS IS TRUE THERE
WOULD BE NO PENALTY WHERE A CORPORATION DELIBERATELY REFUSED TO COMPLY
WITH A LAWFUL COMMISSION ORDER TO ANSWER SPECIFIC QUESTIONS, FOR THE
ONLY PENALTY AVAILABLE AGAINST CORPORATIONS IS THE FORFEITURE
PROVISION.  THUS A CORPORATION THAT REFUSED TO FILE AN ANNUAL OR
SPECIAL REPORT WOULD BE SUBJECT TO A $100 PER DAY FORFEITURE.  AN
INDIVIDUAL UNDER SUBPOENA WHO REFUSED TO APPEAR AND TESTIFY OR SUPPLY
DOCUMENTS WOULD BE SUBJECT TO A FINE OF $1,000 TO $5,000 AND/OR A JAIL
SENTENCE UP TO THREE YEARS.  BUT UNDER PETITIONER'S INTERPRETATION OF
THE ACT THERE WOULD BE NO PENALTY WHATSOEVER WHERE A CORPORATION
DELIBERATELY FAILED TO FILE ANSWERS TO SPECIFIC QUESTIONS.  THE ONLY
REMEDY WOULD BE A MANDATORY INJUNCTION TO FORCE IT TO DO SO.  WE CANNOT
ATTRIBUTE SUCH AN ANOMALY TO CONGRESS.  RATHER WE WOULD ASSUME THAT IN
PLACING THE PHRASE "ANSWERS IN WRITING TO SPECIFIC QUESTIONS" IN SEC.
6(B) CONGRESS WAS MERELY EXPLICATING WHAT THE COMMISSION MIGHT REQUIRE
A CORPORATION TO INCLUDE IN AN ANNUAL OR SPECIAL REPORT. 

MOREOVER, THE LEGISLATIVE HISTORY OF THE ACT DOES NOT SUPPORT
PETITIONER'S THEORY THAT THE PHRASE "ANSWERS IN WRITING TO SPECIFIC
QUESTIONS" REFERS TO A SEPARATE POWER OF THE COMMISSION.  BOTH THE
HOUSE AND SENATE BILLS DEALING WITH THE FEDERAL TRADE COMMISSION (OR
INTERSTATE TRADE COMMISSION, AS IT WAS CALLED IN THE HOUSE) HAD
PROVISIONS ENABLING THE COMMISSION TO ORDER ANNUAL AND SPECIAL REPORTS,
BUT NEITHER MENTIONED ANSWERS TO SPECIFIC QUESTIONS.  THE HOUSE
COMMITTEE REPORT ON THE ORIGINAL HOUSE VERSION OF THE ACT STATED: 

"THE COMMISSION, UNDER THIS SECTION, (LATER 6(B)) MAY ALSO REQUIRE
SUCH SPECIAL REPORTS AS IT MAY DEEM ADVISABLE.  BY THIS MEANS, IF THE
ORDINARY DATA FURNISHED BY A CORPORATION DOES NOT ADEQUATELY DISCLOSE
ITS ORGANIZATION, FINANCIAL CONDITION, BUSINESS PRACTICES, OR RELATION
TO OTHER CORPORATIONS, THERE CAN BE OBTAINED BY A SPECIAL REPORT SUCH
ADDITIONAL INFORMATION AS THE COMMISSION MAY DEEM NECESSARY."  H.R.
REP. NO. 533, 63D CONG., 2D SESS. 4. 

THE PHRASE "ANSWERS IN WRITING TO SPECIFIC QUESTIONS" FIRST APPEARED
IN THE CONFERENCE REPORT, BUT THE REPORT BY THE HOUSE MANAGERS
EXPLAINING THE MODIFICATIONS OF THE HOUSE BILL DID NOT MENTION IT
(ALTHOUGH IT DISCUSSED SOME OTHER CHANGES IN THE ANNUAL AND SPECIAL
REPORT PROVISIONS OF THE HOUSE BILL).  H.R. REP. NO. 1142, 63D CONG.,
2D SESS.  SIMILARLY, THE EXPLANATION OF THE CONFERENCE REPORT BY THE
SENATE MANAGERS IN DEBATE MAKES IT CLEAR THAT THE CHANGES MADE IN
CONFERENCE WERE OF THE NATURE OF NEW, CLARIFYING PHRASEOLOGY (WITH TWO
EXCEPTIONS NOT RELEVANT HERE).  51 CONG. REC. 14768-14769.  IF THE
CONFERENCE HAD INTENDED TO GIVE THE COMMISSION A SEPARATE, NEW POWER
WHICH WAS NOT INCLUDED IN EITHER THE HOUSE OR SENATE BILL, SURELY THERE
WOULD BE SOME MENTION OF IT IN THE REPORTS BY THE MANAGERS. 

FINALLY, IT SHOULD BE NOTED THAT A CONSTRUCTION OF THE STATUTE WHICH
EMPOWERS THE COMMISSION TO PARTICULARIZE ITS REQUESTS FOR ANNUAL AND
SPECIAL REPORTS WITH SPECIFIC QUESTIONS WILL TEND TO AVOID OBJECTIONS
OF VAGUENESS.  THE REQUESTS DIRECTED TO PETITIONER WHICH WERE NOT
PARTICULARIZED - ITEMS 1(H); 3(J), (K); 5(J), (K); 6(J); 7(J); 8(J);
AND 11(A)-(1) OF THE FIRST ORDER; AND ITEM 5 OF THE SEVENTH ORDER -
WERE STRUCK DOWN BY THE DISTRICT COURT AS UNENFORCEABLE.  SUCH GENERAL
REQUESTS FOR REPORTS WITHOUT SPECIFICITY PLACE THE REPORTING COMPANY IN
A DIFFICULT POSITION, LEADING TO EXPENSIVE AND TIME-CONSUMING
LITIGATION AS WELL AS FRUSTRATING THE COMMISSION'S ATTEMPT TO OBTAIN
INFORMATION. 

 IV. 

THE DISTRICT COURT HELD THAT SINCE THE COMMISSION ORDERS WERE
"PARTIALLY DEFECTIVE," PETITIONER HAD A VALID REASON FOR CHALLENGING
THEM, AND THEREFORE NO FORFEITURES ACCRUED.  PETITIONER SUPPORTS THIS
HOLDING BY ASSERTING THAT MANY OF THE ITEMS INCLUDED IN THE
COMMISSION'S ORDERS WERE HELD UNENFORCEABLE BY THE DISTRICT COURT, AND
THAT UNDER BOWMAN DAIRY CO. V. UNITED STATES, 341 U.S. 214 (1951),
FORFEITURE SHOULD NOT BE IMPOSED FOR NONCOMPLIANCE WITH SUBSTANTIALLY
DEFECTIVE ORDERS.  THE COURT OF APPEALS DISAGREED, HOLDING THAT
FORFEITURE HAD OCCURRED AND THAT THE DAILY PENALTY BEGAN TO RUN 30 DAYS
AFTER THE NOTICE OF DEFAULT ON THE FIRST SET OF THE COMMISSION'S
ORDERS.  (FN12)  WE AGREE WITH THE COURT OF APPEALS AND CONCLUDE THAT
THE SINGLE DAILY PENALTY RUNS UNTIL THE DATE OF OUR STAY, FEBRUARY 7,
1961. 

PETITIONER'S FIGURES RELATIVE TO THE PERCENTAGE OF DEFECTIVE INQUIRES
ARE BASED ON ANALYSIS OF ALL NINE ORDERS.  HOWEVER, THE SUIT FOR
FORFEITURE WAS BROUGHT ONLY IN RESPECT TO THE TWO ORDERS DIRECTED TO
PETITIONER, AND WE WILL RESTRICT OUR CONSIDERATION TO THE 134 INQUIRIES
INCLUDED THEREIN.  PRIOR TO THE JUDGMENT 63 OF THESE ITEMS REMAINED
UNANSWERED.  THE TRIAL JUDGE STRUCK 10 OF THEM AS UNENFORCEABLE,
LEAVING 53 WHICH HE ORDERED TO BE ANSWERED.  HOWEVER, WHETHER ONE TAKES
THE ABOVE FIGURES, OR THOSE OF THE PETITIONER ASSERTING THAT ONLY 37%
OF THE QUESTIONS WERE ENFORCED BY THE TRIAL COURT, OR THE GOVERNMENT'S
CLAIM THAT TWO-THIRDS OF THE QUESTIONS WERE VALID AND UNANSWERED AT THE
TIME OF THE SUIT, THIS CASE NEED NOT GO OFF ON A MATHEMATICAL FORMULA. 
THE RECORD FULLY SUPPORTS THE CONCLUSION OF THE COURT OF APPEALS THAT
THIS IS NOT "A CASE INVOLVING SINGLE OVERSIGHT OR AN HONEST MISTAKE IN
A GOOD FAITH ATTEMPT TO COMPLY WITH THE COMMISSION'S ORDER."  285 F.2D,
AT 614.  NOR, AS THE CONCURRING OPINION FOUND, IS IT A CASE OF "SUCH
EXTENSIVE INVALIDITY THAT THERE IS NO LONGER AN INTELLIGIBLE
REQUIREMENT" FOR A REPORT.  285 F.2D, AT 616. 

PETITIONER ASSERTS THAT EVEN PARTIAL INVALIDITY OF THE ORDER PREVENTS
THE APPLICATION OF THE FORFEITURE PROVISION, ARGUING THAT THE CASE IS
CONTROLLED BY THE RULE IN BOWMAN DAIRY CO., SUPRA. IN THAT CASE THE
COURT CONCLUDED THAT "ONE SHOULD NOT BE HELD IN CONTEMPT UNDER A
SUBPOENA THAT IS PART GOOD AND PART BAD."  341 U.S., AT 221.  BUT THAT
RULE CANNOT BE CONSIDERED APART FROM ITS FACTS.  THERE THE DEFENDANT
COULD NOT APPEAL FROM THE CONTESTED ORDER, BUT WAS ABLE TO CHALLENGE IT
ONLY BY DISOBEYING AND APPEALING THE CONTEMPT CONVICTION.  IT WAS IN
REVIEW OF THAT CONVICTION - THE DEFENDANT'S FIRST OPPORTUNITY TO REVIEW
THE VALIDITY OF THE ORDER - THAT THIS COURT HELD THAT ITS PARTIAL
INVALIDITY BARRED THE PUNISHMENT.  HERE PETITIONER MIGHT HAVE DELAYED
ACCRUAL OF THE FORFEITURES PENDING DETERMINATION OF THE MERITS OR
OBTAINED A SEPARATE JUDICIAL DETERMINATION OF THE VALIDITY OF THE
ORDERS BEFORE THE PENALTIES BEGAN TO ACCRUE, AS WE POINT OUT INFRA. 
RATHER THAN ATTEMPTING SUCH PROCEDURES IT DEFIED LARGE PARTS OF THE
ORDERS.  IT CANNOT NOW BE HEARD TO COMPLAIN BECAUSE SUCH DEFIANCE WAS
IN ERROR. 

PETITIONER ALSO CONTENDS THAT THE TRIAL COURT, AFTER FINDING THE
ORDERS PARTIALLY INVALID, SHOULD HAVE STRICKEN THEM AND REQUIRED THE
COMMISSION TO ISSUE NEW ONES IF IT WISHED TO PROCEED WITH THE INQUIRY. 
WE AGREE WITH THE TRIAL COURT AND THE COURT OF APPEALS THAT SEC. 6(C)
OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 241, 5 U.S.C. SEC.
1005(C), AUTHORIZED THE PROCEDURE THE COURT FOLLOWED, I.E., ORDERING
PARTIAL COMPLIANCE.  THAT SECTION DIRECTS THE COURT TO SUSTAIN "ANY
SUCH SUBPENA OR SIMILAR PROCESS OR DEMAND TO THE EXTENT THAT IT IS
FOUND TO BE IN ACCORDANCE WITH LAW  ...  "  NOR DO WE SEE ANY SUBSTANCE
TO THE FURTHER CONTENTION THAT IN DIRECTING PARTIAL COMPLIANCE THE
TRIAL JUDGE TREATED THOSE ITEMS FOUND ENFORCEABLE AS SUBPOENAS AND
THEREFORE SUBJECT SOLELY TO CONTEMPT ACTION.  THE VARIOUS REQUESTS WERE
SEVERABLE, AND THE COURT'S ORDER WAS NOT IN SUBSTITUTION OF THE
COMMISSION'S ORDERS BUT MERELY AN ENFORCEMENT OF THEM, IN ACCORDANCE
WITH SEC. 9 OF THE F.T.C.A. AUTHORIZING THE COURT TO COMPEL OBEDIENCE
TO LAWFUL COMMISSION ORDERS.  FINALLY, PETITIONER ARGUES THAT THE CASE
SHOULD HAVE BEEN REMANDED TO THE TRIAL COURT FOR DETERMINATION OF
WHETHER THE FORFEITURE SHOULD APPLY.  HOWEVER, ONCE THE COURT OF
APPEALS HELD THAT THE DEFAULT WAS WITHIN THE FORFEITURE PROVISION OF
SEC. 10, ITS PENALTIES ACCRUED, AND THERE WAS NOTHING REMAINING OPEN
FOR DECISION THAT REQUIRED A REMAND TO THE DISTRICT COURT. 

                                       V. 

PETITIONER'S FINAL POINT IS THAT TO IMPOSE THE FORFEITURES WILL
DEPRIVE IT OF PROPERTY WITHOUT DUE PROCESS OF LAW.  THIS ARGUMENT IS
BASED ON THE PREMISE THAT THE ORDERS OF THE COMMISSION WERE NOT
JUDICIALLY REVIEWABLE EXCEPT AT THE RISK OF PAYING DAILY FORFEITURES
ACCUMULATING THROUGHOUT THE PERIOD OF NONCOMPLIANCE, INCLUDING THE
PERIOD OF JUDICIAL REVIEW.  WE NEED NOT CONSIDER THIS POINT AT LENGTH
FOR IT APPEARS THAT PETITIONER DID NOT TRY TO OBTAIN JUDICIAL REVIEW
PRIOR TO THE COMMENCEMENT OF THIS ACTION BY THE GOVERNMENT, NOR DID
PETITIONER SEEK A STAY ONCE THE LITIGATION HAD BEGUN.  THIS INACTION
WAS IN PART BASED UPON PETITIONER'S RELIANCE ON FEDERAL TRADE COMM'N V.
CLAIRE FURNACE CO., 274 U.S. 160 (1927).  THIS RELIANCE WAS MISPLACED. 
IN THAT CASE AN INJUNCTION WAS SOUGHT AGAINST THE COMMISSION
RESTRAINING IT FROM ENFORCING CERTAIN ORDERS ISSUED UNDER THE SAME
ISSUED ANY NOTICE OF DEFAULT ON THE ORDERS, AS WAS DONE HERE, NOR HAD
THE ORDERS BEEN FORWARDED TO THE ATTORNEY GENERAL FOR ENFORCEMENT. 
THIS COURT PROPERLY HELD AN INJUNCTION WOULD NOT LIE SINCE THE SUBJECTS
OF THE REPORTS COULD NOT SUFFER ANY INJURY OR PENALTY AT THAT POINT IN
THE INVESTIGATION.  AS CHIEF JUSTICE TAFT SAID, "UNTIL THE ATTORNEY
GENERAL ACTS, THE DEFENDANTS CAN NOT SUFFER, AND WHEN HE DOES ACT, THEY
CAN PROMPTLY ANSWER AND HAVE FULL OPPORTUNITY TO CONTEST THE LEGALITY
OF ANY PREJUDICIAL PROCEEDING AGAINST THEM."  274 U.S., AT 174. 

UPON THE COMMENCEMENT OF THE ACTION BY THE GOVERNMENT, PETITIONER
MIGHT HAVE THEN SOUGHT A STAY, AS IT DID WHEN THE DECISION WENT AGAINST
IT IN THE COURT OF APPEALS.  (FN13)  MOREOVER, AFTER THE ENTRY OF THE
NOTICES OF DEFAULT BY THE COMMISSION, PETITIONER MIGHT HAVE ITSELF
SOUGHT RELIEF BEFORE THE SEC. 10 FORFEITURES BEGAN TO ACCRUE INSTEAD OF
WAITING FOR THE ATTORNEY GENERAL TO SUE FOR THEIR COLLECTION.  AS WAS
SAID IN UNITED STATES V. MORTON SALT CO., 338 U.S. 632, 654 (1950), "WE
ARE NOT PREPARED TO SAY THAT COURTS WOULD BE POWERLESS" TO ACT WHERE
SUCH ORDERS APPEAR SUSPECT AND RUINOUS PENALTIES WOULD BE SUSTAINED
PENDING A GOOD FAITH TEST OF THEIR VALIDITY.  THERE THE RECORD DID NOT
PRESENT AND THE COURT DID NOT DETERMINE "WHETHER THE DECLARATORY
JUDGMENT ACT, THE ADMINISTRATIVE PROCEDURE ACT, OR GENERAL EQUITABLE
POWERS OF THE COURTS WOULD AFFORD A REMEDY IF THERE WERE SHOWN TO BE A
WRONG, OR WHAT THE CONSEQUENCES WOULD BE IF NO CHANCE IS GIVEN FOR A
TEST OF REASONABLE OBJECTIONS TO SUCH AN ORDER."  SIMILARLY, AS THIS
MATTER COMES HERE NOW, THE PETITIONER HAS PURSUED NONE OF THESE
REMEDIES, AND WE COULD NOT THEREFORE SAY THAT IT HAD "NO CHANCE" TO
PREVENT THE RUNNING OF THE FORFEITURE PENDING A TEST OF THE VALIDITY OF
THE ORDERS.  CF. UNITED STATES V. L.A. TUCKER TRUCK LINES, 344 U.S. 33,
37 (1952); NATURAL GAS PIPELINE CO. V. SLATTERY, 302 U.S. 300, 310
(1937).  WE NOTE, HOWEVER, THAT THE DECLARATORY JUDGMENT ACT, 28 U.S.C.
SEC. 2201, PROVIDES THAT "IN A CASE OF ACTUAL CONTROVERSY WITHIN ITS
JURISDICTION  ...  ANY COURT  ...  MAY DECLARE THE RIGHTS ...  OF ANY
INTERESTED PARTY SEEKING SUCH DECLARATION  ...  ."  THIS APPEARS
SUFFICIENT TO MEET PETITIONER'S NEEDS. 

THIS COURT CANNOT FORGIVE STATUTORY PENALTIES ONCE THEY LEGALLY
ATTACH AND, FINDING NO GROUNDS UPON WHICH WE CAN STRIKE THEM DOWN, THE
JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.    FN1  "THE COMMISSION
SHALL ALSO HAVE POWER: 

"(B)  TO REQUIRE, BY GENERAL OR SPECIAL ORDERS, CORPORATIONS ENGAGED
IN COMMERCE, EXCEPTING BANKS, AND COMMON CARRIERS SUBJECT TO THE ACT TO
REGULATE COMMERCE, OR ANY CLASS OF THEM, OR ANY OF THEM, RESPECTIVELY,
TO FILE WITH THE COMMISSION IN SUCH FORM AS THE COMMISSION MAY
PRESCRIBE ANNUAL OR SPECIAL, OR BOTH ANNUAL AND SPECIAL, REPORTS OR
ANSWERS IN WRITING TO SPECIFIC QUESTIONS, FURNISHING TO THE COMMISSION
SUCH INFORMATION AS IT MAY REQUIRE AS TO THE ORGANIZATION, BUSINESS,
CONDUCT, PRACTICES, MANAGEMENT, AND RELATION TO OTHER CORPORATIONS,
PARTNERSHIPS, AND INDIVIDUALS OF THE RESPECTIVE CORPORATIONS FILING
SUCH REPORTS OR ANSWERS IN WRITING.  SUCH REPORTS AND ANSWERS SHALL BE
MADE UNDER OATH, OR OTHERWISE, AS THE COMMISSION MAY PRESCRIBE, AND
SHALL BE FILED WITH THE COMMISSION WITHIN SUCH REASONABLE PERIOD AS THE
COMMISSION MAY PRESCRIBE, UNLESS ADDITIONAL TIME BE GRANTED IN ANY CASE
BY THE COMMISSION."  38 STAT. 721, 15 U.S.C. SEC. 46(B). 

FN2  SECTION 9 OF THE FEDERAL TRADE COMMISSION ACT PROVIDES THAT
"UPON THE APPLICATION OF THE ATTORNEY GENERAL OF THE UNITED STATES, AT
THE REQUEST OF THE COMMISSION, THE DISTRICT COURTS OF THE UNITED STATES
SHALL HAVE JURISDICTION TO ISSUE WRITS OF MANDAMUS COMMANDING ANY
PERSON OR CORPORATION TO COMPLY WITH THE PROVISIONS OF THIS ACT OR ANY
ORDER OF THE COMMISSION MADE IN PURSUANCE THEREOF."  38 STAT. 722, 15
U.S.C. SEC. 49. 

FN3  SECTION 10 OF THE FEDERAL TRADE COMMISSION ACT PROVIDES: 

"THAT ANY PERSON WHO SHALL NEGLECT OR REFUSE TO ATTEND AND TESTIFY,
OR TO ANSWER ANY LAWFUL INQUIRY, OR TO PRODUCE DOCUMENTARY EVIDENCE, IF
IN HIS POWER TO DO SO, IN OBEDIENCE TO THE SUBPOENA OR LAWFUL
REQUIREMENT OF THE COMMISSION, SHALL BE GUILTY OF AN OFFENSE AND UPON
CONVICTION THEREOF BY A COURT OF COMPETENT JURISDICTION SHALL BE
PUNISHED BY A FINE OF NOT LESS THAN $1,000 NOR MORE THAN $5,000, OR BY
IMPRISONMENT FOR NOT MORE THAN ONE YEAR, OR BY BOTH SUCH FINE AND
IMPRISONMENT. 

"ANY PERSON WHO SHALL WILLFULLY MAKE, OR CAUSE TO BE MADE, ANY FALSE
ENTRY OR STATEMENT OF FACT IN ANY REPORT REQUIRED TO BE MADE UNDER THIS
ACT, OR WHO SHALL WILLFULLY MAKE, OR CAUSE TO BE MADE, ANY FALSE ENTRY
IN ANY ACCOUNT, RECORD, OR MEMORANDUM KEPT BY ANY CORPORATION SUBJECT
TO SAID SECTIONS, OR WHO SHALL WILLFULLY NEGLECT OR FAIL TO MAKE, OR TO
CAUSE TO BE MADE, FULL, TRUE, AND CORRECT ENTRIES IN SUCH ACCOUNTS,
RECORDS, OR MEMORANDA OF ALL FACTS AND TRANSACTIONS APPERTAINING TO THE
BUSINESS OF SUCH CORPORATION, OR WHO SHALL WILLFULLY REMOVE OUT OF THE
JURISDICTION OF THE UNITED STATES, OR WILLFULLY MUTILATE, ALTER, OR BY
ANY OTHER MEANS FALSIFY ANY DOCUMENTARY EVIDENCE OF SUCH CORPORATION,
OR WHO SHALL WILLFULLY REFUSE TO SUBMIT TO THE COMMISSION OR TO ANY OF
ITS AUTHORIZED AGENTS, FOR THE PURPOSE OF INSPECTION AND TAKING COPIES,
ANY DOCUMENTARY EVIDENCE OF SUCH CORPORATION IN HIS POSSESSION OR
WITHIN HIS CONTROL, SHALL BE DEEMED GUILTY OF AN OFFENSE AGAINST THE
UNITED STATES, AND SHALL BE SUBJECT, UPON CONVICTION IN ANY COURT OF
THE UNITED STATES OF COMPETENT JURISDICTION, TO A FINE OF NOT LESS THAN
$1,000 NOR MORE THAN $5,000, OR TO IMPRISONMENT FOR A TERM OF NOT MORE
THAN THREE YEARS, OR TO BOTH SUCH FINE AND IMPRISONMENT. 

"IF ANY CORPORATION REQUIRED BY THIS ACT TO FILE ANY ANNUAL OR
SPECIAL REPORT SHALL FAIL SO TO DO WITHIN THE TIME FIXED BY THE
COMMISSION FOR FILING THE SAME, AND SUCH FAILURE SHALL CONTINUE FOR
THIRTY DAYS AFTER NOTICE OF SUCH DEFAULT, THE CORPORATION SHALL FORFEIT
TO THE UNITED STATES THE SUM OF $100 FOR EACH AND EVERY DAY OF THE
CONTINUANCE OF SUCH FAILURE, WHICH FORFEITURE SHALL BE PAYABLE INTO THE
TREASURY OF THE UNITED STATES, AND SHALL BE RECOVERABLE IN A CIVIL SUIT
IN THE NAME OF THE UNITED STATES BROUGHT IN THE DISTRICT WHERE THE
CORPORATION HAS ITS PRINCIPAL OFFICE OR IN ANY DISTRICT IN WHICH IT
SHALL DO BUSINESS.  IT SHALL BE THE DUTY OF THE VARIOUS UNITED STATES
ATTORNEYS, UNDER THE DIRECTION OF THE ATTORNEY GENERAL OF THE UNITED
STATES, TO PROSECUTE FOR THE RECOVERY OF FORFEITURES.  THE COSTS AND
EXPENSES OF SUCH PROSECUTION SHALL BE PAID OUT OF THE APPROPRIATION FOR
THE EXPENSES OF THE COURTS OF THE UNITED STATES. 

"ANY OFFICER OR EMPLOYEE OF THE COMMISSION WHO SHALL MAKE PUBLIC ANY
INFORMATION OBTAINED BY THE COMMISSION WITHOUT ITS AUTHORITY, UNLESS
DIRECTED BY A COURT, SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND, UPON
CONVICTION THEREOF, SHALL BE PUNISHED BY A FINE NOT EXCEEDING $5,000,
OR BY IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY FINE AND IMPRISONMENT,
IN THE DISCRETION OF THE COURT."  38 STAT. 723, 15 U.S.C. SEC. 50. 

FN4  COMPARE FEDERAL TRADE COMM'N V. DILGER, 276 F.2D 739 (C.A. 7TH
CIR. 1960), WITH UNITED STATES V. ST. REGIS PAPER CO., 285 F.2D 607
(C.A.2D CIR. 1960). 

FN5  "INFORMATION AS CONFIDENTIAL; EXCEPTION. 

"(A)  NEITHER THE SECRETARY, NOR ANY OTHER OFFICER OR EMPLOYEE OF THE
DEPARTMENT OF COMMERCE OR BUREAU OR AGENCY THEREOF, MAY, EXCEPT AS
PROVIDED IN SECTION 8 OF THIS TITLE: 

"(1)  USE THE INFORMATION FURNISHED UNDER THE PROVISIONS OF THIS
TITLE FOR ANY PURPOSE OTHER THAN THE STATISTICAL PURPOSES FOR WHICH IT
IS SUPPLIED; OR: 

"(2)  MAKE ANY PUBLICATION WHEREBY THE DATA FURNISHED BY ANY
PARTICULAR ESTABLISHMENT OR INDIVIDUAL UNDER THIS TITLE CAN BE
IDENTIFIED; OR: 

"(3)  PERMIT ANYONE OTHER THAN THE SWORN OFFICERS AND EMPLOYEES OF
THE DEPARTMENT OR BUREAU OR AGENCY THEREOF TO EXAMINE THE INDIVIDUAL
REPORTS."  13 U.S.C. SEC. 9(A). 

FN6  "CONFIDENTIAL.  - THIS REPORT IS REQUIRED BY ACT OF CONGRESS,
APPROVED AUGUST 31, 1954, (13 U.S.C. 131 AND 224).  YOUR REPORT IS
CONFIDENTIAL AND ONLY SWORN CENSUS EMPLOYEES WILL HAVE ACCESS TO IT.
IT CANNOT BE USED FOR PURPOSES OF TAXATION, INVESTIGATION OR
REGULATION." 

FN7  PROCLAMATION BY PRESIDENT HOOVER, NOVEMBER 22, 1929, 46 STAT.
3011, 3012. 

FN8  "THAT NEITHER SAID REPORT NOR ANY REPORT OF SAID INVESTIGATION
NOR ANY PART THEREOF SHALL BE ADMITTED AS EVIDENCE OR USED FOR ANY
PURPOSE IN ANY SUIT OR ACTION FOR DAMAGES GROWING OUT OF ANY MATTER
MENTIONED IN SAID REPORT OR INVESTIGATION."  36 STAT. 351, 45 U.S.C.
SEC. 41. 

FN9  "(F)  NO REPORT BY ANY MOTOR CARRIER OF ANY ACCIDENT ARISING IN
THE COURSE OF THE OPERATIONS OF SUCH CARRIER, MADE PURSUANT TO ANY
REQUIREMENT OF THE COMMISSION, AND NO REPORT BY THE COMMISSION OF ANY
INVESTIGATION OF ANY SUCH ACCIDENT, SHALL BE ADMITTED AS EVIDENCE, OR
USED FOR ANY OTHER PURPOSE, IN ANY SUIT OR ACTION FOR DAMAGES GROWING
OUT OF ANY MATTER MENTIONED IN SUCH REPORT OR INVESTIGATION."  49
U.S.C. SEC. 320(F). 

FN10  E.G., UNITED STATES V. O'MARA, 122 F. SUPP. 399 (D.C.D.C.
1954).  CONTRA, O'CONNELL V. OLSEN & UGELSTADT, 10 F.R.D. 142, 143
(D.C.N.D. OHIO 1949). 

FN11  "WHOEVER, BEING AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR
OF ANY DEPARTMENT OR AGENCY THEREOF, PUBLISHES, DIVULGES, DISCLOSES, OR
MAKES KNOWN IN ANY MANNER OR TO ANY EXTENT NOT AUTHORIZED BY LAW ANY
INFORMATION COMING TO HIM IN THE COURSE OF HIS EMPLOYMENT OR OFFICIAL
DUTIES OR BY REASON OF ANY EXAMINATION OR INVESTIGATION MADE BY, OR
RETURN, REPORT OR RECORD MADE OR OR FILED WITH, SUCH DEPARTMENT OR
AGENCY OR OFFICER OR EMPLOYEE THEREOF, WHICH INFORMATION CONCERNS OR
RELATES TO THE TRADE SECRETS, PROCESSES, OPERATIONS, STYLE OF WORK, OR
APPARATUS, OR TO THE IDENTITY, CONFIDENTIAL STATISTICAL DATA, AMOUNT OR
SOURCE OF ANY INCOME, PROFITS, LOSSES, OR EXPENDITURES OF ANY PERSON,
FIRM, PARTNERSHIP, CORPORATION, OR ASSOCIATION; OR PERMITS ANY INCOME
RETURN OR COPY THEREOF OR ANY BOOK CONTAINING ANY ABSTRACT OR
PARTICULARS THEREOF TO BE SEEN OR EXAMINED BY ANY PERSON EXCEPT AS
PROVIDED BY LAW; SHALL BE FINED NOT MORE THAN $1,000, OR IMPRISONED NOT
MORE THAN ONE YEAR, OR BOTH; AND SHALL BE REMOVED FROM OFFICE OR
EMPLOYMENT."  18 U.S.C. SEC. 1905. 

FN12  THE SECOND SET OF ORDERS WAS MERELY SUPPLEMENTARY, SO ONLY A
SINGLE DAILY PENALTY ACCRUED. 

FN13  PETITIONER UNSUCCESSFULLY MOVED IN THE COURT OF APPEALS FOR A
POSTPONEMENT OF THE EFFECTIVE DATE OF THE COMMISSION'S ORDERS.  COMING
WHEN IT DID, HOWEVER, WE CANNOT SAY THAT SUCH DENIAL WAS AN ABUSE OF
DISCRETION.  CF. VIRGINIAN R. CO. V. UNITED STATES, 272 U.S. 658
(1926).  FURTHERMORE, A SHORT WHILE THEREAFTER WE STAYED THE
ACCUMULATION OF FURTHER PENALTIES WHEN THE PETITION FOR WRIT OF
CERTIORARI WAS GRANTED.  IF PETITIONER HAD UNSUCCESSFULLY SOUGHT A STAY
IN THE DISTRICT COURT, A DIFFERENT QUESTION MIGHT HAVE BEEN PRESENTED. 
THAT ACTION, AFTER FINAL JUDGMENT, COULD HAVE BEEN REVIEWED BOTH IN THE
COURT OF APPEALS AND HERE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE WHITTAKER AND MR. JUSTICE
STEWART CONCUR, DISSENTING. 

I DISSENT FROM THE COURT'S HOLDINGS (1) THAT PETITIONER'S COPIES OF
CENSUS REPORTS SUBMITTED TO THE CENSUS BUREAU ARE NOT PRIVILEGED FROM
PRODUCTION BY SEC. 9 OF THE CENSUS ACT, AND (2) THAT FOR ITS REFUSAL TO
PRODUCE THESE COPIES AND TO ANSWER CERTAIN OF MANY QUESTIONS ASKED IT
BY THE FEDERAL TRADE COMMISSION, PETITIONER MUST PAY A PENALTY OF $100
FOR EACH DAY SINCE THAT REFUSAL UP TO THE TIME, MANY MONTHS LATER, WHEN
THIS COURT GRANTED A STAY AS TO FUTURE PENALTIES. 

FIRST.  SECTION 9(A) OF THE CENSUS ACT, SET OUT IN NOTE 5 OF THE
COURT'S OPINION, WITH EXCEPTIONS NOT HERE MATERIAL, PROVIDES THAT
NEITHER THE SECRETARY OF COMMERCE, NOR ANY OTHER OFFICER OR EMPLOYEE OF
THE DEPARTMENT OF COMMERCE OR ANY BUREAU OR AGENCY THEREOF, MAY USE THE
INFORMATION FURNISHED IN CENSUS REPORTS EXCEPT FOR CENSUS PURPOSES,
MAKE ANY PUBLICATION OF THE DATA CONTAINED IN SUCH REPORTS AS COMING
FROM THE ESTABLISHMENT OR INDIVIDUAL REPORTING IT, OR PERMIT ANY PERSON
EXCEPT OFFICERS AND EMPLOYEES OF THE CENSUS BUREAU TO EXAMINE SUCH
REPORTS.  MOREOVER, IN SECURING FROM PETITIONER THE VERY REPORTS,
COPIES OF WHICH ARE HERE BEING HELD SUBJECT TO SUBPOENA BY THE FEDERAL
TRADE COMMISSION AS A STEP TOWARDS GOVERNMENT REGULATION OF THE
PETITIONER, THE FORM SUPPLIED BY THE CENSUS BUREAU TOLD PETITIONER: 

"YOUR REPORT IS CONFIDENTIAL AND ONLY SWORN CENSUS EMPLOYEES WILL HAVE
ACCESS TO IT.  IT CANNOT BE USED FOR PURPOSES OF TAXATION,
INVESTIGATION OR REGULATION." 

THE PRESIDENT OF THE UNITED STATES BACKED UP THESE PROMISES OF
CONGRESS AND THE CENSUS BUREAU WITH A PROCLAMATION IN WHICH HE STATED
UNEQUIVOCALLY:  "NO PERSON CAN BE HARMED IN ANY WAY BY FURNISHING THE
INFORMATION REQUIRED."  46 STAT. 3011, 3012.  I AGREE WITH THE SEVENTH
CIRCUIT COURT OF APPEALS THAT "THESE ASSURANCES OF CONFIDENTIALITY AND
PROTECTION CONSTITUTE A PLEDGE OF GOOD FAITH ON THE PART OF THE
CONGRESS, THE PRESIDENT AND THE DEPARTMENT OF COMMERCE."  FEDERAL TRADE
COMM'N V. DILGER, 276 F.2D 739, 744. 

IT IS TRUE,AS THE COURT EMPHASIZES, THAT ALTHOUGH THE CENSUS ACT, THE
CENSUS BUREAU AND THE PRESIDENT PROMISED THAT THE CENSUS BUREAU WOULD
KEEP CENSUS REPORTS PURELY CONFIDENTIAL, NEITHER THE ACT, THE BUREAU
NOR THE PRESIDENT LITERALLY PROMISED IN SO MANY WORDS THAT OTHER
GOVERNMENT AGENCIES SUCH AS THE FEDERAL TRADE COMMISSION WOULD NEVER
SUBPOENA AND USE COPIES OF THOSE REPORTS PREPARED AND KEPT IN RELIANCE
UPON THE GOVERNMENT'S PROMISE OF SECRECY.  THE COURT HOLDS THAT,
BECAUSE THE GOVERNMENT DID NOT SO EXPRESSLY BIND ITSELF WITH RESPECT TO
ACTIONS IT MAY TAKE AGAINST COPIES OF THESE REPORTS THROUGH THE FEDERAL
TRADE COMMISSION, THE SOLEMN AND COMPREHENSIVE PROMISES OF SECRECY
WHICH IT MADE NEED NOT BE HONORED.  BUT SURELY THE GOVERNMENT'S
PROMISES, FAIRLY CONSTRUED, DO NOT INDICATE THAT THE SCOPE OF THE
PROTECTION AFFORDED AGAINST THE USE OF CENSUS REPORTS "FOR PURPOSES OF
TAXATION, INVESTIGATION OR REGULATION" IS LIMITED TO THE ORIGINALS OF
THOSE REPORTS AND TO THE CENSUS BUREAU ALONE.  THAT BUREAU DOES NOT
ITSELF EVEN ENGAGE IN THE ACTIVITIES AGAINST WHICH THE USE OF THESE
REPORTS IS PROTECTED.  QUITE PLAINLY, THE PROMISED PROTECTION WAS
AGAINST GOVERNMENTAL "TAXATION, INVESTIGATION OR REGULATION" GENERALLY,
AND, TO PROTECT THE INTEGRITY OF THAT PROMISE, IT IS OF COURSE
NECESSARY THAT ALL OF THE PARTICULAR ARMS OF GOVERNMENT WHICH ARE
ENGAGED IN THOSE ACTIVITIES BE BOUND BY THE GOVERNMENT'S PLEDGES.  OUR
GOVERNMENT SHOULD NOT, BY PICAYUNISH HAGGLING OVER THE SCOPE OF ITS
PROMISE, PERMIT ONE OF ITS ARMS TO DO THAT WHICH, BY ANY FAIR
CONSTRUCTION, THE GOVERNMENT HAS GIVEN ITS WORD THAT NO ARM WILL DO.
IT IS NO LESS GOOD MORALS AND GOOD LAW THAT THE GOVERNMENT SHOULD TURN
SQUARE CORNERS IN DEALING WITH THE PEOPLE THAN THAT THE PEOPLE SHOULD
TURN SQUARE CORNERS IN DEALING WITH THEIR GOVERNMENT.  CF. ROCK ISLAND,
ARKANSAS & LOUISIANA R. CO. V. UNITED STATES, 254 U.S. 141, 143. 

SECOND.  THE PETITIONER IS BEING PENALIZED $100 PER DAY FOR ITS
FAILURE TO PRODUCE COPIES OF ITS CENSUS REPORTS ALONG WITH ANSWERS TO
CERTAIN OF THE VOLUMINOUS QUESTIONS PROPOUNDED TO IT BY THE FEDERAL
TRADE COMMISSION.  MANY QUESTIONS HAD ALREADY BEEN ANSWERED PRIOR TO
THE TIME PENALTIES BEGAN TO RUN.  THE DISTRICT COURT HAS HELD THAT A
VERY SUBSTANTIAL NUMBER OF THE OTHER QUESTIONS ASKED NEED NOT BE
ANSWERED, AND I DO NOT UNDERSTAND THAT THIS COURT NOW HOLDS OTHERWISE. 
SO FAR AS THE COMMISSION'S DEMAND FOR PRODUCTION OF THE CENSUS REPORTS
IS CONCERNED, PETITIONER COULD QUITE REASONABLY HAVE FELT THAT IT WAS
UNDER NO OBLIGATION TO COMPLY BECAUSE OF THE GOVERNMENT'S NUMEROUS
PROMISES THAT THESE REPORTS WOULD BE TREATED AS CONFIDENTIAL.  INDEED,
THE VERY POSITION TAKEN BY PETITIONER AS TO THE PRIVILEGED NATURE OF
ITS CENSUS REPORTS WAS HELD TO BE CORRECT IN THE DILGER CASE, DECIDED
JUST THREE WEEKS BEFORE THE DISTRICT COURT DECISION IN THIS CASE.  ALL
OF THIS PLAINLY SHOWS, I THINK, THAT, WITH REGARD TO SOME OF THE
INFORMATION SOUGHT, INDEED A VERY SUBSTANTIAL PART OF IT, THERE WAS A
SERIOUS, GOOD-FAITH CONTROVERSY CONCERNING THE COMMISSION'S POWER TO
COMPEL DISCLOSURE.  UNDER THESE CIRCUMSTANCES I AGREE WITH THE DISTRICT
COURT'S CONCLUSION THAT THESE HEAVY STATUTORY PENALTIES SHOULD NOT HAVE
BEEN IMPOSED.  IT IS PRACTICALLY THE UNIVERSAL RULE THAT LAWS IMPOSING
PENALTIES OF THIS KIND SHOULD BE STRICTLY, NOT EXPANSIVELY, CONSTRUED. 
APPLYING THAT STANDARD, I AM BY NO MEANS SURE THAT THE PENALTY
PROVISIONS OF THE STATUTE UPON WHICH THIS JUDGMENT RESTS CAN BE
CONSTRUED SO AS TO JUSTIFY THE PENALTIES HERE AT ALL.    I WOULD
REVERSE THIS JUDGMENT. 
..END :

















KILLIAN V. UNITED STATES 368 U.S. 231 


NO. 7.  ARGUED OCTOBER 10, 1961 - DECIDED DECEMBER 11, 1961 - 275 F.2D
561, JUDGMENT VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT OF VIOLATING 18
U.S.C. SEC. 1001 BY SWEARING FALSELY THAT HE WAS NOT A MEMBER OF, OR
AFFILIATED WITH, THE COMMUNIST PARTY, IN AN AFFIDAVIT FILED WITH THE
NATIONAL LABOR RELATIONS BOARD TO ENABLE A UNION OF WHICH HE WAS AN
OFFICER TO COMPLY WITH SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT,
AS AMENDED BY THE TAFT-HARTLEY ACT.  AT THE TRIAL, PETITIONER MOVED
UNDER 18 U.S.C. SEC. 3500 FOR PRODUCTION, FOR USE IN CROSS-EXAMINATION,
OF ALL STATEMENTS GIVEN BY TWO GOVERNMENT WITNESSES RELATING TO THEIR
TESTIMONY.  ALL NARRATIVE STATEMENTS OF BOTH WITNESSES WHICH RELATED TO
THEIR DIRECT TESTIMONY WERE PRODUCED AND MADE AVAILABLE TO PETITIONER;
BUT NOTES MADE BY AN F.B.I. AGENT COVERING ORAL REPORTS OF ONE WITNESS
REGARDING HIS EXPENSES AND RECEIPTS SIGNED BY BOTH WITNESSES FOR MONEY
PAID TO THEM FOR EXPENSES WERE NOT PRODUCED, AND THEY WERE NOT IN THE
RECORD BEFORE THIS COURT.  IN THIS COURT, THE SOLICITOR GENERAL
REPRESENTED THAT THE NOTES COVERING ORAL REPORTS OF THE WITNESS
REGARDING HIS EXPENSES HAD BEEN DESTROYED BEFORE THE TRIAL, THAT MOST
OF THE RECEIPTS FOR EXPENSE MONEY SIGNED BY THE WITNESSES DID NOT
RELATE TO ANYTHING MENTIONED IN THEIR DIRECT TESTIMONY, AND THAT,
ALTHOUGH SOME OF THE RECEIPTS CONTAINED INFORMATION RELATING TO THE
DIRECT TESTIMONY OF ONE OF THE WITNESSES, ALL SUCH INFORMATION HAD BEEN
MADE AVAILABLE TO PETITIONER IN THE NARRATIVE STATEMENTS OF THAT
WITNESS.  HELD: 

1.  THE JUDGMENT IS VACATED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR A HEARING AND FINDINGS OF FACT ON THE ISSUES RAISED BY THE
SOLICITOR GENERAL'S REPRESENTATIONS.  IF THE DISTRICT COURT FINDS THAT
HIS REPRESENTATIONS ARE TRUE IN ALL MATERIAL RESPECTS, IT SHALL ENTER A
NEW FINAL JUDGMENT BASED UPON THE RECORD AS SUPPLEMENTED BY ITS
FINDINGS, THEREBY PRESERVING TO PETITIONER THE RIGHT TO APPEAL TO THE
COURT OF APPEALS.  IF THE DISTRICT COURT FINDS THAT THE SOLICITOR
GENERAL'S REPRESENTATIONS ARE UNTRUE IN ANY MATERIAL RESPECT, IT SHALL
GRANT PETITIONER A NEW TRIAL.  PP. 236-244. 

(A)  IF THE AGENT'S NOTES OF THE ORAL REPORTS OF EXPENSES WERE MADE
ONLY FOR THE PURPOSE OF TRANSFERRING THE DATA THEREON TO RECEIPTS TO BE
SIGNED BY THE WITNESS, AND IF, AFTER HAVING SERVED THAT PURPOSE, THEY
WERE DESTROYED IN GOOD FAITH AND IN ACCORD WITH NORMAL PRACTICE, THEIR
DESTRUCTION DID NOT CONSTITUTE AN IMPERMISSIBLE DESTRUCTION OF EVIDENCE
NOR DEPRIVE PETITIONER OF ANY RIGHT.  PP. 241-242. 

(B)  PETITIONER WOULD NOT BE ENTITLED TO A NEW TRIAL BECAUSE OF THE
NONPRODUCTION OF THOSE NOTES, IF THEY WERE SO DESTROYED AND NOT IN
EXISTENCE AT THE TIME OF THE TRIAL.  P. 242. 

(C)  NOTWITHSTANDING THE FACT THAT THE RECEIPTS GIVEN BY THE
WITNESSES FOR EXPENSE MONEY WERE "STATEMENTS," WITHIN THE MEANING OF 18
U.S.C. SEC. 3500, AND WERE DEMANDED UNDER THAT SECTION, PETITIONER
WOULD NOT BE ENTITLED TO A NEW TRIAL BECAUSE OF THEIR NONPRODUCTION, IF
THEY DID NOT RELATE TO THE DIRECT TESTIMONY OF THOSE WITNESSES.  PP.
242-243. 

(D)  IF SOME OF THE RECEIPTS DID RELATE TO THE DIRECT TESTIMONY OF
ONE WITNESS BUT THE INFORMATION CONTAINED IN THEM HAD ALREADY BEEN
GIVEN TO PETITIONER IN THE NARRATIVE STATEMENTS OF THAT WITNESS, THE
DISTRICT COURT COULD PROPERLY FIND THAT THE ERROR IN FAILING TO PRODUCE
THOSE RECEIPTS WAS HARMLESS.  PP. 243-244. 

2.  THE DISTRICT COURT'S INSTRUCTIONS TO THE JURY (QUOTED IN THE
OPINION, P. 246, N. 5, AND P. 254, N. 13) PROPERLY DEFINED "MEMBERSHIP
IN," AND "AFFILIATION WITH," THE COMMUNIST PARTY.  PP. 242-258. 

(A)  MEMBERSHIP IN SUCH A SECRETLY OPERATING ORGANIZATION IS, TO ALL
BUT THE ORGANIZATION AND ITS MEMBER OR MEMBERS, NECESSARILY SUBJECTIVE,
AND, ALTHOUGH IT MUST BE PROVED BY EVIDENCE OF OBJECTIVE FACTS AND
CIRCUMSTANCES HAVING A RATIONAL TENDENCY TO SHOW, AND FROM WHICH THE
JURY MAY RATIONALLY AND LOGICALLY INFER, THE ULTIMATE SUBJECTIVE FACT
OF MEMBERSHIP, IT IS, IN THE VERY NATURE OF SUCH A CASE, NECESSARY THAT
THE COURT'S INSTRUCTIONS DEFINE MEMBERSHIP IN SUCH AN ORGANIZATION IN
SUBJECTIVE TERMS OR NOT AT ALL.  P. 249. 

(B)  THE FOLLOWING DEFINITION OF "MEMBERSHIP" CONTAINED IN THE
INSTRUCTIONS WAS NOT ERRONEOUS: "MEMBERSHIP IN THE COMMUNIST PARTY, THE
SAME AS MEMBERSHIP IN ANY OTHER ORGANIZATION, CONSTITUTES THE STATE OF
BEING ONE OF THOSE PERSONS WHO BELONG TO OR COMPRISE THE COMMUNIST
PARTY.  IT CONNOTES A STATUS OF MUTUALITY BETWEEN THE INDIVIDUAL AND
THE ORGANIZATION.  THAT IS TO SAY, THERE MUST BE PRESENT THE DESIRE ON
THE PART OF THE INDIVIDUAL TO BELONG TO THE COMMUNIST PARTY AND A
RECOGNITION BY THAT PARTY THAT IT CONSIDERS HIM AS A MEMBER."  PP. 249
251. 

(C)  THE INSTRUCTIONS DID NOT FAIL ADEQUATELY TO STATE THE OBJECTIVE
CIRCUMSTANCES THAT MIGHT BE CONSIDERED BY THE JURY IN DETERMINING
MEMBERSHIP, AND THE CRITERIA SUBMITTED WERE NOT TOO INDEFINITE TO GIVE
THE JURY THE NECESSARY GUIDANCE.  PP. 251-253. 

(D)  INDEPENDENTLY OF, AND WHOLLY APART FROM, SEC. 5 OF THE COMMUNIST
CONTROL ACT OF 1954, IT WAS PROPER TO TELL THE JURY, AS THIS
INSTRUCTION DID, THAT, IN DETERMINING WHETHER THE DEFENDANT WAS OR WAS
NOT A MEMBER OF THE COMMUNIST PARTY ON THE DATE CHARGED IN THE
INDICTMENT, THEY MIGHT CONSIDER 12 OF THE 14 CRITERIA SPECIFIED BY
CONGRESS IN SEC. 5 OF THAT ACT.  PP. 252-253. 

(E)  THE INSTRUCTIONS DID NOT ALLOW A FINDING OF MEMBERSHIP ON A DATE
OTHER THAN THAT CHARGED IN THE INDICTMENT.  P. 253. 

(F)  THE INSTRUCTIONS DID NOT VIOLATE THE FIRST AMENDMENT OR DENY DUE
PROCESS BY PERMITTING THE JURY TO BASE ITS FINDING OF MEMBERSHIP UPON
STATEMENTS AND ACTS THAT ARE PROTECTED BY THAT AMENDMENT.  PP. 253
254. 

(G)  THE COURT'S INSTRUCTION DEFINING "AFFILIATION" WAS CORRECT.  PP.
254-258. 

(H)  THE INSTRUCTION WAS NOT ERRONEOUS FOR FAILURE TO ADVISE THE JURY
THAT ONE MAY NOT BE "AFFILIATED WITH" THE COMMUNIST PARTY, WITHIN THE
MEANING OF SEC. 9(H), BY ANY DIRECT RELATIONSHIP WITH THE PARTY, BUT
ONLY BY BEING A MEMBER OF ANOTHER ORGANIZATION THAT IS AFFILIATED WITH
THE PARTY.  PP. 256-257. 

(I)  THE ULTIMATE FACT OF AFFILIATION, THOUGH SUBJECTIVE, MAY BE
PROVED BY EVIDENCE OF OBJECTIVE FACTS AND CIRCUMSTANCES HAVING A
RATIONAL TENDENCY TO SHOW, AND FROM WHICH THE JURY MAY RATIONALLY AND
LOGICALLY FIND, AFFILIATION.  P. 257. 

(J)  THOUGH ONE PARAGRAPH OF THE INSTRUCTIONS WAS ERRONEOUS AND
CONFLICTED WITH ANOTHER PARAGRAPH, IT COULD NOT PREJUDICE PETITIONER,
BECAUSE IT EXACTED A HIGHER STANDARD OF PROOF OF AFFILIATION THAN THE
LAW REQUIRED.  PP. 257-258. 

KILLIAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

FOR THE PURPOSE OF ENABLING A LABOR UNION OF WHICH HE WAS THEN AN
OFFICER TO COMPLY WITH SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT,
AS AMENDED, 29 U.S.C. SEC. 159(H), AND HENCE TO USE THE PROCESSES OF
THE NATIONAL LABOR RELATIONS BOARD, (FN1) PETITIONER MADE ON DECEMBER
9, AND CAUSED TO BE FILED WITH THE BOARD ON DECEMBER 11, 1952, AN
AFFIDAVIT RECITING, INTER ALIA, "I AM NOT A MEMBER OF THE COMMUNIST
PARTY OR AFFILIATED WITH SUCH PARTY."  UPON RECEIPT OF THAT AFFIDAVIT
AND LIKE ONES OF ALL OTHER OFFICERS OF THE UNION, THE BOARD ADVISED THE
UNION THAT IT HAD COMPLIED WITH SEC. 9(H) AND COULD MAKE USE OF THE
BOARD'S PROCESSES. 

IN NOVEMBER 1955, AN INDICTMENT IN TWO COUNTS WAS RETURNED AGAINST
PETITIONER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS.  THE FIRST COUNT CHARGED THAT, IN VIOLATION OF 18
U.S.C. SEC. 1001, (FN2) PETITIONER HAD FALSELY SWORN, IN THE AFFIDAVIT,
THAT HE WAS NOT A MEMBER OF THE COMMUNIST PARTY, AND THE SECOND CHARGED
THAT, IN VIOLATION OF THE SAME STATUTE, HE HAD ALSO FALSELY SWORN IN
THAT AFFIDVAIT THAT HE WAS NOT AFFILIATED WITH THE COMMUNIST PARTY.  A
JURY TRIAL WAS HAD WHICH RESULTED IN A VIRDICT OF GUILTY ON BOTH
COUNTS, AND THE COURT SENTENCED PETITIONER TO IMPRISONMENT.  ON APPEAL,
THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ORIGINALLY
AFFIRMED, BUT, BEFORE THE MOTION FOR REHEARING WAS RULED, THIS COURT'S
DECISION IN JENCKS V. UNITED STATES, 353 U.S. 657, CAME DOWN, AND, ON
THE AUTHORITY OF THAT CASE, THE COURT GRANTED THE MOTION FOR REHEARING,
REVERSED THE JUDGMENT AND REMANDED THE CASE FOR A NEW TRIAL.  UNITED
STATES V. KILLIAN, 246 F.2D 77, 82.  A NEW TRIAL WAS HAD.  IT ALSO
RESULTED IN A VERDICT OF GUILTY ON BOTH COUNTS, AND PETITIONER WAS
SENTENCED TO IMPRISONMENT FOR FIVE YEARS ON COUNT I, AND FOR THREE
YEARS ON COUNT II, THE SENTENCES TO RUN CONCURRENTLY.  ON APPEAL, THE
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED, UNITED
STATES V. KILLIAN, 275 F.2D 561, AND WE GRANTED CERTIORARI LIMITED TO
TWO QUESTIONS, NAMELY, (1) WHETHER PRODUCTION OF STATEMENTS SUBMITTED
BY GOVERNMENT INFORMER WITNESSES FOR THEIR EXPENSES, AND THE RECEIPTS
EXECUTED BY THEM FOR THE PAYMENTS, IS REQUIRED BY 18 U.S.C. SEC. 3500
WHEN THE GOVERNMENT OFFERS AT THE TRIAL TO PRODUCE A LIST OF THE DATES
AND AMOUNTS OF THE PAYMENTS, AND (2) WHETHER THE INSTRUCTIONS TO THE
JURY PROPERLY DEFINED MEMBERSHIP IN AND AFFILIATION WITH THE COMMUNIST
PARTY.  365 U.S. 810. 

THE GOVERNMENT INTRODUCED EVIDENCE TENDING TO SHOW THAT PETITIONER
WAS A MEMBER AND ACTIVE IN THE AFFAIRS OF THE COMMUNIST PARTY FROM 1949
THROUGH AUGUST 1953, BUT, INASMUCH AS THERE IS NOT BEFORE US ANY
QUESTION CONCERNING THE SUFFICIENCY OF THE EVIDENCE TO MAKE A
SUBMISSIBLE CASE FOR THE JURY, IT IS NOT NECESSARY TO REVIEW THE
EVIDENCE IN DETAIL. 

     I. THE DOCUMENT PRODUCTION QUESTIONS. 

INTELLIGENT UNDERSTANDING OF THE DOCUMENT PRODUCTION QUESTIONS
PRESENTED REQUIRES A BRIEF STATEMENT OF THEIR BASIS.  THEY AROSE IN
CONNECTION WITH THE TESTIMONY OF GOVERNMENT WITNESSES SULLIVAN AND
ONDREJKA. 

ON DIRECT EXAMINATION, SULLIVAN TESTIFIED THAT HE JOINED THE
COMMUNIST PARTY IN 1948 AT THE REQUEST OF THE FEDERAL BUREAU OF
INVESTIGATION, AND IN OCTOBER 1949 TRANSFERRED HIS MEMBERSHIP FROM
CINCINNATI, OHIO, TO MADISON, WISCONSIN, WHERE, BY SECRET MEANS, HE
MADE CONTACT WITH LOCAL LEADERS OF THE COMMUNIST PARTY AND BECAME
ACTIVE IN ITS AFFAIRS.  IN THOSE ACTIVITIES, HE MET PETITIONER IN
DECEMBER 1949.  PETITIONER WAS THEN THE SECTION ORGANIZER FOR THE PARTY
IN MADISON.  THEREAFTER, SULLIVAN ATTENDED A NUMBER OF SECRET COMMUNIST
PARTY GROUP MEETINGS IN MADISON IN 1949 AND 1950 AT WHICH PETITIONER
WAS PRESENT AND ACTED AS THE SPOKESMAN AND LEADER.  SULLIVAN TESTIFIED
THAT HE GAVE WRITTEN REPORTS TO THE F.B.I. RESPECTING PARTY MEETINGS
AND ACTIVITIES SOON AFTER THEY OCCURRED. 

AT THE CLOSE OF SULLIVAN'S DIRECT TESTIMONY, PETITIONER MOVED FOR
PRODUCTION, FOR USE IN CROSS-EXAMINATION, OF ALL STATEMENTS GIVEN BY
THE WITNESS TO THE F.B.I. RELATING TO HIS DIRECT TESTIMONY.  THE
NARRATIVE STATEMENTS WERE PRODUCED TO THE JUDGE, IN CAMERA, WHO, AFTER
EXCISING THE PARTS THAT DID NOT RELATE TO THE WITNESS' DIRECT
TESTIMONY, HANDED THEM TO PETITIONER'S COUNSEL.  ON CROSS-EXAMINATION,
SULLIVAN TESTIFIED THAT HE WAS PAID STIPULATED MONTHLY AMOUNTS FOR HIS
SERVICES, AND WAS REIMBURSED FOR HIS EXPENSES INCURRED IN COMMUNIST
PARTY ACTIVITIES, BY THE F.B.I., AND THAT WHEN HE RECEIVED THE MONEY HE
SIGNED A RECEIPT FOR IT.  HIS CONNECTION WITH THE F.B.I. TERMINATED IN
1952. 

AFTER COMPLETING THE CROSS-EXAMINATION OF THE WITNESS, PETITIONER
AGAIN MOVED FOR PRODUCTION OF ALL STATEMENTS MADE BY THE WITNESS TO THE
F.B.I., WITHOUT EXCISION.  THE GOVERNMENT OBJECTED TO THE MOTION ON THE
GROUNDS THAT IT HAD PRODUCED ALL OF THE WITNESS' STATEMENTS THAT
RELATED TO HIS DIRECT TESTIMONY, AND THAT THERE WAS NO SHOWING THAT THE
WITNESS HAD GIVEN ANY OTHER STATEMENTS TO THE GOVERNMENT THAT RELATED
TO HIS DIRECT TESTIMONY.  THEREUPON, THE COURT DENIED PETITIONER'S
MOTION.  PETITIONER THEN MOVED TO STRIKE THE TESTIMONY OF THE WITNESS,
AND THAT MOTION, TOO, WAS DENIED. 

ON DIRECT EXAMINATION, ONDREJKA TESTIFIED THAT HE JOINED THE
COMMUNIST PARTY AT THE REQUEST OF THE F.B.I. IN OCTOBER 1949 AND
REMAINED A MEMBER OF THE PARTY UNTIL NOVEMBER 1953.  HE MET PETITIONER
AT A COMMUNIST PARTY MEETING IN MILWAUKEE, WISCONSIN, IN JANUARY 1951,
AND THEREAFTER ATTENDED MANY SECRET COMMUNIST PARTY MEETINGS IN
MILWAUKEE WHERE PETITIONER WAS PRESENT AND ACTIVE, AND ALSO
PARTICIPATED WITH PETITIONER IN NUMEROUS PARTY ACTIVITIES, UNTIL AUGUST
1953, AND KNEW PETITIONER TO BE A MEMBER OF THE COMMUNIST PARTY
THROUGHOUT THAT PERIOD.  ONDREJKA TESTIFIED THAT HE GAVE WRITTEN
REPORTS TO THE F.B.I. RESPECTING PARTY MEETINGS AND ACTIVITIES SOON
AFTER THEY OCCURRED. 

AT THE CONCLUSION OF ONDREJKA'S DIRECT TESTIMONY, PETITIONER MOVED
FOR PRODUCTION, FOR USE IN CROSS-EXAMINATION, OF ALL STATEMENTS GIVEN
BY THE WITNESS TO THE F.B.I.  THE COURT ORDERED THE GOVERNMENT TO
PRODUCE TO THE JUDGE, IN CAMERA, "ALL STATEMENTS THAT IN ANY WAY AFFECT
THE DIRECT EXAMINATION OF THE WITNESS."  ACCORDINGLY, ALL OF THE
NARRATIVE STATEMENTS GIVEN BY THE WITNESS TO THE GOVERNMENT RELATING TO
HIS DIRECT TESTIMONY WERE PRODUCED TO THE JUDGE, WHO, AFTER EXCISING
SUCH PARTS AS DID NOT RELATE TO THE WITNESS' DIRECT TESTIMONY,
DELIVERED THEM TO PETITIONER'S COUNSEL.  PETITIONER THEN MOVED FOR
PRODUCTION OF ALL STATEMENTS RELATING TO THE TESTIMONY OF THE WITNESS,
WITHOUT EXCISION.  THAT MOTION WAS DENIED. 

ON CROSS-EXAMINATION, ONDREJKA TESTIFIED THAT HE WAS PAID STIPULATED
MONTHLY AMOUNTS IN CASH FOR HIS SERVICES BY THE F.B.I., AND, IN
ADDITION, WAS REIMBURSED BY THE F.B.I. FOR HIS EXPENSES, SUCH AS
COMMUNIST PARTY DUES, LITERATURE, CONTRIBUTIONS AND TRAVEL, WHICH HE
ORALLY REPORTED TO AN F.B.I. AGENT, WHO MADE NOTES THEREOF AND LATER
REIMBURSED HIM IN CASH.  THE COURT SUSTAINED THE GOVERNMENT'S OBJECTION
TO A QUESTION ASKING WHETHER ONDREJKA SIGNED RECEIPTS FOR THE MONEYS
PAID TO HIM IN REIMBURSEMENT FOR HIS EXPENSES. 

PETITIONER THEN MOVED FOR PRODUCTION OF ALL STATEMENTS GIVEN BY THE
WITNESS TO THE F.B.I., WHETHER WRITTEN BY THE WITNESS OR BY AN F.B.I.
AGENT AS THE RESULT OF INTERVIEWS WITH THE WITNESS, WHICH RELATED TO
THE WITNESS' TESTIMONY ON CROSS-EXAMINATION, INCLUDING PARTICULARLY
REPORTS BY THE WITNESS OF HIS REIMBURSABLE EXPENSES AND THE RECEIPTS
WHICH HE SIGNED EVIDENCING REIMBURSEMENT FOR THOSE EXPENSES.  THE
GOVERNMENT OPPOSED PRODUCTION OF THE DOCUMENTS ON THE GROUND THAT THEY
DID NOT RELATE TO THE DIRECT TESTIMONY OF THE WITNESS.  IT FURTHER
OBJECTED TO PRODUCING ONDREJKA'S REPORTS OF EXPENSES, AND THE RECEIPTS
HE HAD SIGNED WHEN REIMBURSED FOR THOSE EXPENSES, ON THE GROUNDS THAT
THEY WERE ADMINISTRATIVE RECORDS OF THE F.B.I. AND WERE IMMATERIAL AND
IRRELEVANT, BUT THE GOVERNMENT OFFERED TO PRODUCE A LIST SHOWING THE
DATES AND AMOUNTS OF THE PAYMENTS AND WHETHER THEY WERE FOR SERVICES OR
EXPENSES.  PETITIONER REFUSED TO RECEIVE THAT PROFFERED LIST. 
THEREUPON, THE COURT DENIED THE MOTION.  PETITIONER THEN MOVED TO
STRIKE ALL OF ONDREJKA'S TESTIMONY, AND THAT MOTION, TOO, WAS DENIED. 

PETITIONER CONTENDS THAT HIS GENERAL DEMANDS FOR "ALL STATEMENTS," AS
WELL AS HIS SPECIFIC DEMAND FOR THE REPORTS AND RECIPTS MADE BY
ONDREJKA, ENCOMPASSED, AND THE TRIAL COURT ERRED TO HIS PREJUDICE IN
DENYING HIS MOTION TO REQUIRE THE GOVERNMENT TO PRODUCE, (1) THE NOTES
MADE BY THE F.B.I. AGENTS COVERING ONDREJKA'S ORAL REPORTS OF EXPENSES
AND (2) THE RECEIPTS SIGNED BY SULLIVAN AND ONDREJKA FOR MONEYS PAID TO
THEM IN REIMBURSEMENT FOR EXPENSES.  HE SUPPORTS THESE CONTENTIONS WITH
AN ELABORATE ARGUMENT WHICH WE NEED NOT DELINEATE BECAUSE THE SOLICITOR
GENERAL NOW CONCEDES THAT THE F.B.I. NOTES OF ONDREJKA'S ORAL REPORTS
MAY HAVE BEEN "STATEMENTS" WITHIN THE MEANING OF 18 U.S.C. SEC.
3500(E)(2), (FN3) AND HE FLATLY CONCEDES THAT THE RECEIPTS SIGNED BY
SULLIVAN AND ONDREJKA WERE "STATEMENTS" WITHIN THE MEANING OF SEC.
3500. 

HOWEVER, THE SOLICITOR GENERAL CONTENDS THAT ON THE ACTUAL FACTS -
MANY OF WHICH ARE NOT INCORPORATED IN THE RECORD BEFORE US - PETITIONER
IS NOT ENTITLED TO, AND THAT WE SHOULD NOT ON THIS INCOMPLETE AND
IMPERFECT RECORD ORDER, A NEW TRIAL, BECAUSE THE TRUE FACTS ARE THAT
THE F.B.I. AGENTS' NOTES COVERING ONDREJKA'S ORAL REPORTS OF EXPENSES
WERE NOT IN EXISTENCE AT THE TIME OF THE TRIAL, AND THE RECEIPTS SIGNED
BY SULLIVAN AND ONDREJKA DO NOT "RELATE TO" THEIR DIRECT TESTIMONY AS
REQUIRED BY SEC. 3500, OR, IF IT MAY BE SAID THAT ANY OF THEM DO
"RELATE TO" THEIR DIRECT TESTIMONY, THAT THE SAME INFORMATION, IN MUCH
GREATER DETAIL, WAS GIVEN TO PETITIONER IN THE WITNESSES' NARRATIVE
STATEMENTS THAT WERE PRODUCED AND DELIVERED TO HIS COUNSEL AT THE
TRIAL, AND HENCE IF THERE WAS ANY ERROR IT WAS HARMLESS. 

MORE SPECIFICALLY, THE SOLICITOR GENERAL TELLS US IN HIS BRIEF THAT,
ALTHOUGH THE NATURE OF THE GOVERNMENT'S OBJECTIONS IN THE COURTS BELOW
IMPLIED THAT THE AGENTS' NOTES WERE IN EXISTENCE, HIS INTERROGATION OF
THE F.B.I. AGENTS HAS DISCLOSED THAT, AFTER THEY INCORPORATED THE DATA
CONTAINED IN THEIR NOTES OF ONDREJKA'S ORAL REPORTS INTO THE RECEIPTS
TO BE SIGNED BY HIM, THE AGENTS DESTROYED THE NOTES IN ACCORD WITH
THEIR NORMAL PRACTICE, AND HENCE THOSE NOTES WERE NOT IN EXISTENCE AT
THE TIME OF EITHER OF PETITIONER'S TRIALS.  ALTHOUGH THE RECEIPTS ARE
NOT CONTAINED IN THE RECORD BEFORE US, THE SOLICITOR GENERAL SAYS THAT
THERE ARE 124 OF THEM AND THAT A CAREFUL EXAMINATION OF THEM REVEALS
THAT NONE OF SULLIVAN'S RECEIPTS CONTAINS ANY ITEMIZATION WHATEVER OF
THE NATURE OF THE REIMBURSED EXPENSES, AND THUS THEY DO NOT "RELATE TO"
ANYTHING MENTIONED IN HIS DIRECT TESTIMONY.  WITH RESPECT TO ONDREJKA'S
RECEIPTS, THE SOLICITOR GENERAL SAYS THAT, ALTHOUGH THE GOVERNMENT
INADVERTENTLY REPRESENTED TO THE DISTRICT COURT AND THE COURT OF
APPEALS THAT THE LIST, PROFFERED TO PETITIONER AT THE TRIAL AND SHOWING
THE DATES AND AMOUNTS OF PAYMENTS MADE TO ONDREJKA, GAVE ALL OF THE
INFORMATION THAT WAS CONTAINED IN THE RECEIPTS, HIS EXAMINATION HAS
DISCLOSED THAT NINE OF ONDREJKA'S RECEIPTS DO CONTAIN SOME ITEMIZATION
OF THE NATURE OF HIS REIMBURSED EXPENSES, BUT THAT ONLY TWO OF THE NINE
CAN BE SAID TO "RELATE TO" ANYTHING MENTIONED BY ONDREJKA ON HIS DIRECT
EXAMINATION, AND THAT THE SAME INFORMATION, IN GREATER DETAIL, WAS
CONTAINED IN ONDREJKA'S NARRATIVE STATEMENTS THAT WERE PRODUCED AND
DELIVERED TO PETITIONER'S COUNSEL AT THE TRIAL. 

FOR THESE REASONS, THE SOLICITOR GENERAL CONTENDS THAT, VIEWED UPON
THE NOW KNOWN AND READILY AVAILABLE ACTUAL FACTS, NO ERROR, AT LEAST NO
PREJUDICIAL ERROR, RESULTED FROM THE NONPRODUCTION OF THE F.B.I. NOTES
AND THE SULLIVAN AND ONDREJKA RECEIPTS AT THE TRIAL.  HOWEVER, THE
SOLICITOR GENERAL RECOGNIZES THAT PETITIONER IS NOT BOUND TO ACCEPT HIS
STATEMENT THAT THE F.B.I. NOTES OF ONDREJKA'S ORAL REPORTS OF EXPENSES
WERE DESTROYED IN ACCORD WITH NORMAL PRACTICE LONG PRIOR TO THE TRIAL,
AND THAT PETITIONER IS ENTITLED TO AN OPPORTUNITY TO EXAMINE THE F.B.I.
AGENTS AND OTHER RESPONSIBLE GOVERNMENT OFFICIALS ON THESE MATTERS
WHICH, OF COURSE, CAN BE DONE ONLY IN THE DISTRICT COURT.  HE
RECOGNIZES, TOO, THAT HIS CONTENTIONS WITH RESPECT TO THE RECEIPTS
SIGNED BY SULLIVAN AND ONDREJKA NECESSARILY INVOLVE A DETAILED
EXAMINATION AND COMPARISON OF THE LENGTHY DIRECT TESTIMONY OF SULLIVAN
AND ONDREJKA, THE 124 RECEIPTS, THE LIST SHOWING THE DATES AND AMOUNTS
OF PAYMENTS TO ONDREJKA THAT WAS PROFFERED TO PETITIONER BY THE
GOVERNMENT AT THE TRIAL, AND THE NUMEROUS NARRATIVE STATEMENTS BY
SULLIVAN AND ONDREJKA THAT WERE PRODUCED AND DELIVERED TO PETITIONER AT
THE TRIAL, AND HE SUBMITS THAT THIS CANNOT APPROPRIATELY BE DONE IN
THIS COURT, ESPECIALLY SINCE NEITHER THE RECEIPTS NOR THE PROFFERED
LIST IS CONTAINED IN THE PRESENT RECORD, BUT CAN PROPERLY BE DONE ONLY
IN THE DISTRICT COURT.  HE THEREFORE ASKS US TO VACATE THE JUDGMENT AND
REMAND THE CASE TO THE DISTRICT COURT TO HEAR THESE ISSUES AND TO
DETERMINE WHETHER A NEW TRIAL SHOULD BE ORDERED OR THE JUDGMENT SHOULD
BE REINSTATED WITH THE RIGHT IN THE PETITIONER, OF COURSE, TO APPEAL
FROM ANY SUCH JUDGMENT TO THE COURT OF APPEALS.    IN OPPOSITION,
PETITIONER ARGUES THAT THE CLAIMED DESTRUCTION OF THE AGENTS' NOTES
ADMITS THE DESTRUCTION OF EVIDENCE THAT MAY HAVE BEEN HELPFUL TO HIM
AND DEPRIVES HIM OF HIS RIGHTS UNDER SEC. 3500 AND TO DUE PROCESS OF
LAW, AND THEREFORE THE JUDGMENT SHOULD BE REVERSED.  ALTERNATIVELY, HE
ARGUES THAT ONLY HE AND HIS COUNSEL COULD DETERMINE THE USES THAT MIGHT
HAVE BEEN MADE OF THE RECEIPTS HAD THEY BEEN PRODUCED, AND HE CONCLUDES
THAT IT WOULD NOT BE POSSIBLE FOR THE DISTRICT COURT, ON REMAND, TO
FIND THAT THE FAILURE TO PRODUCE THE RECEIPTS WAS NONPREJUDICIAL OR
HARMLESS ERROR, AND THAT THEREFORE HE IS ENTITLED TO A NEW TRIAL. 

AS TO PETITIONER'S CONTENTION THAT THE CLAIMED DESTRUCTION OF THE
AGENTS' NOTES ADMITS THE DESTRUCTION OF EVIDENCE, DEPRIVES HIM OF LEGAL
RIGHTS AND REQUIRES REVERSAL OF THE JUDGMENT, IT SEEMS APPROPRIATE TO
OBSERVE THAT ALMOST EVERYTHING IS EVIDENCE OF SOMETHING, BUT THAT DOES
NOT MEAN THAT NOTHING CAN EVER SAFELY BE DESTROYED.  IF THE AGENTS'
NOTES OF ONDREJKA'S ORAL REPORTS OF EXPENSES WERE MADE ONLY FOR THE
PURPOSE OF TRANSFERRING THE DATA THEREON TO THE RECEIPTS TO BE SIGNED
BY ONDREJKA, AND IF, AFTER HAVING SERVED THAT PURPOSE, THEY WERE
DESTROYED BY THE AGENTS IN GOOD FAITH AND IN ACCORD WITH THEIR NORMAL
PRACTICE, IT WOULD BE CLEAR THAT THEIR DESTRUCTION DID NOT CONSTITUTE
AN IMPERMISSIBLE DESTRUCTION OF EVIDENCE NOR DEPRIVE PETITIONER OF ANY
RIGHT.  THOSE ARE THE FACTUAL REPRESENTATIONS MADE BY THE SOLICITOR
GENERAL.  WHETHER THEY ARE TRUE CAN BE DETERMINED ONLY UPON A HEARING
IN THE DISTRICT COURT. 

IT IS ENTIRELY CLEAR THAT PETITIONER WOULD NOT BE ENTITLED TO A NEW
TRIAL BECAUSE OF THE NONPRODUCTION OF THE AGENTS' NOTES IF THOSE NOTES
WERE SO DESTROYED AND NOT IN EXISTENCE AT THE TIME OF THE TRIAL.  IT IS
EQUALLY CLEAR THAT, NOTWITHSTANDING THE FACT THAT THE SULLIVAN AND
ONDREJKA RECEIPTS WERE "STATEMENTS" WITHIN THE MEANING OF SEC. 3500 AND
WERE DEMANDED UNDER THAT SECTION, PETITIONER WOULD NOT BE ENTITLED TO A
NEW TRIAL BECAUSE OF THE NONPRODUCTION OF THOSE RECEIPTS IF IN TRUTH
THEY DO NOT RELATE TO THE DIRECT TESTIMONY OF THOSE WITNESSES INASMUCH
AS SEC. 3500(C) REQUIRES "THE COURT TO EXCISE THE PORTIONS OF THE
STATEMENT WHICH DO NOT RELATE TO THE SUBJECT MATTER OF THE TESTIMONY OF
THE WITNESS."  THE SOLICITOR GENERAL REPRESENTS THAT 115 OF THE 124
RECEIPTS SIGNED BY SULLIVAN AND ONDREJKA DO NOT CONTAIN ANY ITEMIZATION
OF THE NATURE OF THE REIMBURSED EXPENSES NOR RELATE TO THE DIRECT
TESTIMONY OF THOSE WITNESSES.  IF THOSE REPRESENTATIONS ARE TRUE,
PETITIONER WOULD NOT BE ENTITLED TO A NEW TRIAL BECAUSE OF THE
NONPRODUCTION OF THOSE 115 RECEIPTS.  INASMUCH AS THE RECEIPTS ARE NOT
CONTAINED IN THE RECORD BEFORE US, WHETHER THE SOLICITOR GENERAL'S
REPRESENTATIONS ARE TRUE CAN BE DETERMINED ONLY UPON A HEARING IN THE
DISTRICT COURT. 

BUT THE SOLICITOR GENERAL FINDS THAT TWO OF ONDREJKA'S RECEIPTS MAY
BE SAID TO RELATE TO ONDREJKA'S DIRECT TESTIMONY.  HOWEVER, HE SAYS
THAT THE SAME INFORMATION AS THEY CONTAIN AND MUCH MORE ON THE SAME
SUBJECTS WAS CONTAINED IN ONDREJKA'S NARRATIVE STATEMENTS THAT WERE
PRODUCED AND DELIVERED TO PETITIONER AT THE TRIAL, AND THEREFORE
PETITIONER COULD NOT HAVE BEEN PREJUDICED BY THE NONPRODUCTION OF THOSE
TWO RECEIPTS AND IS NOT ENTITLED TO A NEW TRIAL ON THAT ACCOUNT.  IT IS
TRUE, AS PETITIONER ARGUES, THAT ONLY THE DEFENSE IS IN POSITION TO
DETERMINE THE PRECISE USES THAT MAY BE MADE OF DEMANDED DOCUMENTS,
JENCKS V. UNITED STATES, 353 U.S. 657, 668, BUT THAT IS NOT TO SAY THAT
THE HARMLESS ERROR RULE IS NEVER APPLICABLE IN RESPECT TO THE
NONPRODUCTION OF DEMANDED DOCUMENTS.  UPON VERY SIMILAR FACTS, WE
RECENTLY APPROVED A HOLDING THAT NONPRODUCTION OF DEMANDED DOCUMENTS
WAS HARMLESS ERROR.  ROSENBERG V. UNITED STATES, 360 U.S. 367.  WE
THERE SAID:  "SINCE THE SAME INFORMATION THAT WOULD HAVE BEEN AFFORDED
HAD THE DOCUMENT BEEN GIVEN TO DEFENDANT WAS ALREADY IN THE POSSESSION
OF THE DEFENSE BY WAY OF THE WITNESS' ADMISSIONS WHILE TESTIFYING, IT
WOULD DENY REASON TO ENTERTAIN THE BELIEF THAT DEFENDANT COULD HAVE
BEEN PREJUDICED BY NOT HAVING HAD OPPORTUNITY TO INSPECT THE LETTER." 
360 U.S., AT 371. 

WHILE, AS WE SAID IN THE ROSENBERG CASE, SUPRA, A "COURT SHOULD NOT
CONFIDENTLY GUESS WHAT DEFENDANT'S ATTORNEY MIGHT HAVE FOUND USEFUL FOR
IMPEACHMENT PURPOSES IN WITHHELD DOCUMENTS TO WHICH THE DEFENSE IS
ENTITLED  ...  , WHEN THE VERY SAME INFORMATION WAS POSSESSED BY
DEFENDANT'S COUNSEL AS WOULD HAVE BEEN AVAILABLE WERE ERROR NOT
COMMITTED A COURT PROPERLY CAN FIND THAT IT WOULD OFFEND COMMON SENSE
AND THE FAIR ADMINISTRATION OF JUSTICE TO ORDER A NEW TRIAL."  360
U.S., AT 371. 

IF IT IS TRUE, AS THE SOLICITOR GENERAL REPRESENTS, THAT THE
INFORMATION CONTAINED ON THE TWO ONDREJKA RECEIPTS HAD ALREADY BEEN
GIVEN TO PETITIONER IN ONDREJKA'S NARRATIVE STATEMENTS COVERING THE
SAME SUBJECTS, IT IS CLEAR THAT THE DISTRICT COURT PROPERLY COULD FIND
THAT THE ERROR IN FAILING TO PRODUCE THOSE TWO RECEIPTS WAS HARMLESS. 

ACCORDINGLY, WE VACATE THE JUDGMENT AND REMAND THE CAUSE TO THE
DISTRICT COURT FOR A HEARING CONFINED TO THE ISSUES RAISED BY THE
SOLICITOR GENERAL'S REPRESENTATIONS AS STATED IN THIS OPINION.  THE
DISTRICT COURT SHALL MAKE FINDINGS OF FACT ON THOSE ISSUES.  IF THE
DISTRICT COURT FINDS THAT THE SOLICITOR GENERAL'S REPRESENTATIONS ARE
TRUE IN ALL MATERIAL RESPECTS, IT SHALL ENTER A NEW FINAL JUDGMENT
BASED UPON THE RECORD AS SUPPLEMENTED BY ITS FINDINGS, THEREBY
PRESERVING TO PETITIONER THE RIGHT TO APPEAL TO THE COURT OF APPEALS. 
IF, ON THE OTHER HAND, THE DISTRICT COURT FINDS THAT THE SOLICITOR
GENERAL'S REPRESENTATIONS ARE UNTRUE IN ANY MATERIAL RESPECT, IT SHALL
GRANT PETITIONER A NEW TRIAL. 

                            II.  THE INSTRUCTIONS TO THE JURY. 

WHETHER THE DISTRICT COURT, ON REMAND, GRANTS OR DENIES A NEW TRIAL,
IT IS OBVIOUS THAT PETITIONER'S CONTENTIONS RESPECTING THE COURT'S
INSTRUCTIONS TO THE JURY WILL NOT BE MOOTED (FN4) AND IT SEEMS
NECESSARY TO DECIDE THEM. 

BECAUSE OF THE NATURE OF SOME OF PETITIONER'S CONTENTIONS RESPECTING
THE INSTRUCTIONS, IT SEEMS APPROPRIATE TO MAKE CLEAR JUST WHAT WAS THE
CHARGE UPON WHICH PETITIONER WAS CONVICTED.  HE WAS NOT CHARGED WITH
CRIMINALITY FOR BEING A MEMBER OF OR AFFILIATED WITH THE COMMUNIST
PARTY, NOR FOR PARTICIPATION IN ANY CRIMINAL ACTIVITIES OF OR FOR THE
COMMUNIST PARTY.  HE WAS NOT CHARGED WITH ADVOCATING OR TEACHING THE
OVERTHROUW OF THE GOVERNMENT AS WAS THE CASE IN YATES V. UNITED STATES,
354 U.S. 298, OR WITH KNOWING MEMBERSHIP IN AN ORGANIZATION ADVOCATING
THE OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE AS IN SCALES V.
UNITED STATES, 367 U.S. 203, AND NOTO V. UNITED STATES, 367 U.S. 290. 
THE CHARGE WAS THAT, TO ENABLE A LABOR UNION OF WHICH HE WAS AN OFFICER
TO COMPLY WITH SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT AND THUS
BE PERMITTED TO USE THE PROCESSES OF THE LABOR BOARD, PETITIONER, ON
DECEMBER 11, 1952, KNOWINGLY MADE AND CAUSED TO BE TRANSMITTED TO THE
LABOR BOARD A FALSE AFFIDAVIT, SAYING HE WAS NOT THEN A MEMBER OF OR
AFFILIATED WITH THE COMMUNIST PARTY WHEN IN FACT HE WAS BOTH A MEMBER
OF AND AFFILIATED WITH THE COMMUNIST PARTY, AND THAT THOSE ACTS WERE
MADE CRIMINAL AND PUNISHABLE BY 18 U.S.C. SEC. 1001. 

NOTHING IN SEC. 9(H) OR ELSEWHERE IN THE NATIONAL LABOR RELATIONS ACT
MAKES OR PURPORTS TO MAKE CRIMINAL EITHER MEMBERSHIP IN OR AFFILIATION
WITH THE COMMUNIST PARTY, AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382, 402, BUT SEC. 1001 PROVIDES THAT "WHOEVER, IN ANY MATTER
WITHIN THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE UNITED
STATES KNOWINGLY AND WILLFULLY FALSIFIES  ...  A MATERIAL FACT  ...  OR
MAKES OR USES ANY FALSE WRITING OR DOCUMENT KNOWING THE SAME TO CONTAIN
ANY FALSE  ...  STATEMENT  ...  SHALL BE FINED NOT MORE THAN $10,000 OR
IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH."  PETITIONER WAS CHARGED
WITH AND CONVICTED FOR VIOLATING THAT STATUTE - OF KNOWINGLY MAKING AND
TRANSMITTING TO THE LABOR BOARD ON DECEMBER 11, 1952, AN AFFIDAVIT
FALSELY SWEARING THAT HE WAS NOT A MEMBER OF OR AFFILIATED WITH THE
COMMUNIST PARTY - NOT FOR BEING A MEMBER OF OR AFFILIATED WITH THE
COMMUNIST PARTY, NOR FOR PARTICIPATING IN ANY ACTIVITIES, LAWFUL OR
UNLAWFUL, OF THE COMMUNIST PARTY, ALTHOUGH, OF COURSE, DETERMINATION OF
WHETHER THE AFFIDAVIT WAS TRUE OR FALSE REQUIRES A DETERMINATION OF
WHETHER PETITIONER WAS A MEMBER OF OR AFFILIATED WITH THE COMMUNIST
PARTY ON DECEMBER 11, 1952.  NEITHER IS THERE ANY QUESTION HERE ABOUT
THE FACT THAT THE EVIDENCE WAS SUFFICIENT TO MAKE A SUBMISSIBLE CASE
FOR THE JURY AND TO SUPPORT ITS VERDICT - NOTWITHSTANDING PETITIONER'S
TANGENTIAL IMPLICATIONS TO THE CONTRARY.  THE QUESTIONS HERE ARE SIMPLY
WHETHER THE COURT'S INSTRUCTIONS TO THE JURY PROPERLY DEFINED
MEMBERSHIP IN AND AFFILIATION WITH THE COMMUNIST PARTY. 

MEMBERSHIP.  PETITIONER FIRST CONTENDS THAT THE INSTRUCTION
RESPECTING MEMBERSHIP (FN5) SHOULD HAVE DEFINED "MEMBERSHIP" AS, AND
REQUIRED A FINDING OF, "A DEFINITE OBJECTIVE FACTUAL PHENOMENON" OR A
"SPECIFIC FORMAL ACT OF JOINING" RATHER THAN, AS WAS DONE, IN THE
SUBJECTIVE TERMS OF A STATE OF MIND.  IF PETITIONER IS RIGHT IN THIS
CONTENTION IT WOULD FOLLOW, DESPITE THE FACT THE QUESTION IS FORECLOSED
AGAINST HIM HERE, THAT THE EVIDENCE DID NOT MAKE A SUBMISSIBLE CASE FOR
THE JURY ON COURT I OF THE INDICTMENT AND HIS MOTION FOR A DIRECTED
VERDICT OF ACQUITTAL ON THAT COUNT SHOULD HAVE BEEN GRANTED, FOR THERE
WAS NO EVIDENCE OF "A SPECIFIC FORMAL ACT OF JOINING."  INDEED, THE
VERY NATURE OF THE CASE - CLAIMED MEMBERSHIP IN AN UNDERGROUND OR
SECRETLY OPERATING ORGANIZATION WHOSE MEMBERSHIP RECORDS, IF ANY, ARE
NOT AVAILABLE TO THE GOVERNMENT - PRECLUDES THE POSSIBILITY OF SUCH
EVIDENCE, AND, IF THE RULE WERE AS PETITIONER CONTENDS, FALSE
AFFIDAVITS OF NON-COMMUNIST PARTY MEMBERSHIP COULD BE MADE AND
SUBMITTED TO THE LABOR BOARD WITH IMPUNITY.  MEMBERSHIP IN SUCH A
SECRETLY OPERATING ORGANIZATION IS, TO ALL BUT THE ORGANIZATION AND ITS
MEMBER OR MEMBERS, NECESSARILY SUBJECTIVE, AND, ALTHOUGH IT MUST BE
PROVED BY EVIDENCE OF OBJECTIVE FACTS AND CIRCUMSTANCES HAVING A
RATIONAL TENDENCY TO SHOW, AND FROM WHICH THE JURY MAY RATIONALLY AND
LOGICALLY INFER, THE ULTIMATE SUBJECTIVE FACT OF MEMBERSHIP, IT IS, IN
THE VERY NATURE OF SUCH A CASE, NECESSARY THAT THE COURT'S INSTRUCTIONS
DEFINE MEMBERSHIP IN SUCH AN ORGANIZATION IN SUBJECTIVE TERMS OR NOT AT
ALL. 

A SIMILAR QUESTION ARISING UNDER SEC. 9(H) WAS PRESENTED IN JENCKS V.
UNITED STATES, 353 U.S. 657, BUT THE COURT'S OPINION, TURNING ON THE
DOCUMENT PRODUCTION QUESTION, DID NOT REACH IT.  HOWEVER, MR. JUSTICE
BURTON'S SEPARATE CONCURRING OPINION, JOINED BY MR. JUSTICE HARLAN, 353
U.S., AT 672, AND, ON THE QUESTION HERE CONSIDERED, ALSO BY MR. JUSTICE
FRANKFURTER, 353 U.S., AT 672, DID REACH THE QUESTION.  IT FOUND THE
MEMBERSHIP DEFINING INSTRUCTION GIVEN IN THAT CASE TO BE DEFICIENT
BECAUSE IT "FAILED TO EMPHASIZE TO THE JURY THE ESSENTIAL ELEMENT OF
MEMBERSHIP IN AN ORGANIZED GROUP - THE DESIRE OF AN INDIVIDUAL TO
BELONG TO THE ORGANIZATION AND A RECOGNITION BY THE ORGANIZATION THAT
IT CONSIDERS HIM AS A MEMBER."  353 U.S., AT 679.  IN THE INSTANT CASE,
THE DISTRICT COURT'S INSTRUCTION TO THE JURY DEFINED MEMBERSHIP TO THE
JURY IN ALMOST PRECISELY THAT LANGUAGE (SEE NOTE 5, SIXTH PARAGRAPH). 
SIMILAR INSTRUCTIONS IN CASES ARISING UNDER SEC. 9(H) HAVE BEEN HELD
PROPER BY EVERY UNITED STATES COURT OF APPEALS THAT HAS PASSED UPON THE
QUESTION.  FISHER V. UNITED STATES, 231 F.2D 99, 107 (C.A. 9TH CIR.);
(FN6) LOHMAN V. UNITED STATES, 251 F.2D 951, 954 (C.A. 6TH CIR.); (FN7)
LOHMAN V. UNITED STATES, 266 F2D 3 (C.A. 6TH CIR.); (FN8) TRAVIS V.
UNITED STATES, 269 F.2D 928, 942-943 (C.A. 10TH CIR.).  (FN9)  FROM
THESE CONSISTENT HOLDINGS AND UPON PRINCIPLE, IT SEEMS CLEAR THAT THE
INSTRUCTION'S DEFINITION OF MEMBERSHIP WAS NOT ERRONEOUS UNDER COUNT I
OF THE INDICTMENT. 

PETITIONER NEXT CONTENDS THAT THE COURT'S INSTRUCTION FAILED TO TELL
THE JURY PRECISELY WHAT OBJECTIVE CIRCUMSTANCES WOULD BE SUFFICIENT TO
JUSTIFY A FINDING OF MEMBERSHIP, AND THAT THE CRITERIA WHICH IT TOLD
THE JURY THEY MIGHT CONSIDER IN DETERMINING THE QUESTION OF MEMBERSHIP
WERE TOO INDEFINITE TO GIVE THE JURY THE NECESSARY GUIDANCE.  ALTHOUGH
THE ULTIMATE FACT OF MEMBERSHIP IN SUCH A CASE IS ALMOST NECESSARILY A
SUBJECTIVE ONE, IT MAY BE PROVED, AS WE HAVE SAID, BY OBJECTIVE FACTS
AND CIRCUMSTANCES HAVING A RATIONAL TENDENCY TO SHOW, AND FROM WHICH
THE JURY RATIONALLY AND LOGICALLY MAY FIND, THE ULTIMATE FACT OF
MEMBERSHIP.  BUT, FOR THE PURPOSE OF CONFINING THE JURY'S
CONSIDERATIONS TO THE RELEVANT EVIDENCE, IT WAS PROPER FOR THE COURT TO
OUTLINE THE OBJECTIVE ACTS, SHOWN IN THE EVIDENCE, WHICH THEY MIGHT
CONSIDER IN DETERMINING THE ULTIMATE SUBJECTIVE FACT OF MEMBERSHIP. 
HERE, THE COURT'S INSTRUCTION, AFTER TELLING THE JURY THAT INTENT IS A
STATE OF MIND AND CAN ONLY BE DETERMINED BY WHAT AN INDIVIDUAL SAYS AND
DOES, WENT ON TO SAY THAT IN DETERMINING THE ISSUE AS TO WHETHER THE
DEFENDANT WAS OR WAS NOT A MEMBER OF THE COMMUNIST PARTY AT THE TIME
ALLEGED IN THE INDICTMENT THE JURY MIGHT TAKE INTO CONSIDERATION, AS
CIRCUMSTANCES BEARING ON THAT QUESTION, THE ACTS AND STATEMENTS OF THE
DEFENDANT (SEE NOTE 5, SIXTH PARAGRAPH), AND IN THIS CONNECTION THEY
MIGHT TAKE INTO CONSIDERATION WHETHER THE DEFENDANT DID THE THINGS SET
FORTH IN THE 12 NUMBERED PARAGRAPHS THAT FOLLOWED, WHICH, IT SAID, WERE
SOME OF THE INDICIA OF COMMUNIST PARTY MEMBERSHIP (SEE NOTE 5, EIGHTH
PARAGRAPH).    WHILE THE CRITERIA SPECIFIED IN THE NUMBERED PARAGRAPHS
OF THE CHALLENGED INSTRUCTION WERE IN SUBSTANCE 12 OF THE 14 CRITERIA
SPECIFIED BY CONGRESS IN SEC. 5 OF THE COMMUNIST CONTROL ACT OF 1954
(50 U.S.C. SEC. 844) TO BE CONSIDERED BY A JURY IN DETERMINING
COMMUNIST PARTY MEMBERSHIP UNDER THAT ACT, IT IS UNNECESSARY FOR US TO
DETERMINE IN THIS CASE WHETHER THAT SECTION APPLIES, BY FORCE OF LAW,
TO PROSECUTIONS UNDER 18 U.S.C. SEC. 1001 FOR MAKING A FALSE AFFIDAVIT
TO THE LABOR BOARD IN PURPORTED COMPLIANCE WITH SEC. 9(H) OF THE
NATIONAL LABOR RELATIONS ACT, FOR IT IS OBVIOUS THAT THOSE 12 CRITERIA
RATIONALLY TEND TO SHOW, AND WERE SUFFICIENT TO ENABLE A JURY
RATIONALLY AND LOGICALLY TO FIND, THE ULTIMATE FACT OF MEMBERSHIP,
THOUGH SUBJECTIVE, AND HENCE IT WAS PROPER, INDEPENDENTLY OF AND WHOLLY
APART FROM SEC. 5 OF THE COMMUNIST CONTROL ACT OF 1954, TO TELL THE
JURY, AS THIS INSTRUCTION DID, THAT THEY MIGHT CONSIDER THOSE CRITERIA
IN DETERMINING WHETHER THE DEFENDANT WAS OR WAS NOT A MEMBER OF THE
COMMUNIST PARTY ON THE DATE CHARGED IN THE INDICTMENT. 

SIMILAR CRITERIA WERE CONTAINED IN THE MEMBERSHIP INSTRUCTION GIVEN
IN THE JENCKS CASE, SUPRA, (FN10) AND THE OPINION OF MR. JUSTICE BURTON
DID NOT FIND ANY ERROR IN THAT ASPECT OF THE INSTRUCTION.  VERY SIMILAR
INSTRUCTIONS TELLING THE JURY THAT THEY MIGHT CONSIDER SUCH OR SIMILAR
CRITERIA IN DETERMINING THE ULTIMATE SUBJECTIVE FACT OF MEMBERSHIP
WITHIN THE MEANING OF SEC. 9(H) HAVE BEEN CONSISTENTLY AND UNIFORMLY
APPROVED, HUPMAN V. UNITED STATES, 219 F.2D 243 (C.A. 6TH CIR.); (FN11)
FISHER V. UNITED STATES, 231 F.2D 99, 107 (C.A.  9TH CIR.).  (FN12)  IN
TRAVIS V. UNITED STATES, 247 F.2D 130 , 135, THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT REVERSED BECAUSE THE MEMBERSHIP
INSTRUCTION FAILED TO SPECIFY AND REQUIRE THE JURY TO CONSIDER SUCH
CRITERIA IN DETERMINING THE QUESTION OF MEMBERSHIP.  ON RETRIAL, THE
JURY WAS INSTRUCTED TO CONSIDER VIRTUALLY THE SAME CRITERIA OF
MEMBERSHIP AS WAS THE JURY IN THE INSTANT CASE.  THE DEFENDANTS WERE
AGAIN CONVICTED, AND, ON APPEAL, THE COURT OF APPEALS SPECIFICALLY
APPROVED THE INSTRUCTION.  TRAVIS V. UNITED STATES, 269 F.2D 928, 942
943. 

WE THINK THERE IS NO MERIT IN PETITIONER'S CONTENTION THAT THE
INSTRUCTION FAILED ADEQUATELY TO STATE THE OBJECTIVE CIRCUMSTANCES THAT
MIGHT BE CONSIDERED BY THE JURY IN DETERMINING MEMBERSHIP OR THAT THE
CRITERIA SUBMITTED WERE TOO INDEFINITE TO GIVE THE JURY THE NECESSARY
GUIDANCE. 

NOR IS THERE ANY MERIT IN PETITIONER'S CONTENTION THAT THOSE CRITERIA
ALLOWED A FINDING OF MEMBERSHIP ON A DATE OTHER THAN THAT CHARGED IN
THE INDICTMENT.  THAT CONTENTION FAILS TO CONSIDER THE WHOLE CHARGE,
PARTICULARLY THE VITAL FACT THAT THE COURT REPEATEDLY EMPHASIZED TO THE
JURY THAT THE ISSUE FOR THEM TO DETERMINE WAS WHETHER PETITIONER WAS OR
WAS NOT A MEMBER OF THE COMMUNIST PARTY ON THE DATE THAT HE EXECUTED
AND TRANSMITTED THE AFFIDAVIT. 

PETITIONER, AND THE AMICI CURIAE, CONTEND THAT SEC. 5 OF THE
COMMUNIST CONTROL ACT OF 1954 (50 U.S.C. SEC. 844) IS CONSTITUTIONALLY
INVALID IN THAT IT VIOLATES THE FIRST AMENDMENT OF THE CONSTITUTION AND
DENIES DUE PROCESS BECAUSE IT PERMITS A JURY TO BASE ITS FINDING OF
MEMBERSHIP UPON STATEMENTS AND ACTS THAT ARE PROTECTED BY THE FIRST
AMENDMENT.  THEY THEN ARGUE THAT BECAUSE THE CHALLENGED INSTRUCTION
SUBSTANTIALLY ADOPTED 12 OF THE 14 CRITERIA MENTIONED IN THAT SECTION
THIS INSTRUCTION, TOO, WAS VIOLATIVE OF THE FIRST AMENDMENT AND DENIED
DUE PROCESS.  WE HAVE NO OCCASION HERE TO CONSIDER THE
CONSTITUTIONALITY OF SEC. 5 OF THE COMMUNIST CONTROL ACT OF 1954
BECAUSE, AS WE HAVE SAID, THE INDICIA WHICH THE CHALLENGED INSTRUCTION
TOLD THE JURY TO CONSIDER AS CIRCUMSTANCES BEARING UPON THE ISSUE OF
MEMBERSHIP DID RATIONALLY TEND TO SHOW, AND WERE SUFFICIENT, IF
BELIEVED, TO ENABLE THE JURY RATIONALLY AND LOGICALLY TO FIND, THE
ULTIMATE SUBJECTIVE FACT OF MEMBERSHIP, WHOLLY APART FROM AND
INDEPENDENTLY OF SEC. 5 OF THE COMMUNIST CONTROL ACT OF 1954.  TO
PETITIONER'S ARGUMENT THAT THE SUBMITTED CRITERIA PERMITTED THE JURY TO
FIND MEMBERSHIP FROM STATEMENTS AND ACTS THAT WERE WHOLLY INNOCENT IN
THEMSELVES OR EVEN PROTECTED BY THE FIRST AMENDMENT, IT IS ENOUGH TO
RECALL THAT NOTHING IN SEC. 9(H) OR ELSEWHERE IN THE NATIONAL LABOR
RELATIONS ACT MAKES OR PURPORTS TO MAKE CRIMINAL EITHER MEMBERSHIP IN
OR AFFILIATION WITH THE COMMUNIST PARTY, AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, SUPRA, 339 U.S., AT 402, AND THAT PETITIONER WAS NOT CHARGED
WITH CRIMINALITY FOR BEING A MEMBER OF OR AFFILIATED WITH THE COMMUNIST
PARTY, NOR WITH PARTICIPATING IN ANY CRIMINAL ACTIVITIES OF OR FOR THE
COMMUNIST PARTY, BUT ONLY WITH HAVING MADE AND SUBMITTED TO THE
GOVERNMENT AN AFFIDAVIT FALSELY SWEARING THAT HE WAS NOT A MEMBER OF OR
AFFILIATED WITH THE COMMUNIST PARTY IN VIOLATION OF 18 U.S.C. SEC.
1001.  IT WOULD BE STRANGE DOCTRINE, INDEED, TO SAY THAT MEMBERSHIP IN
THE COMMUNIST PARTY - WHEN, AS HERE, A LAWFUL STATUS - CANNOT BE PROVED
BY EVIDENCE OF LAWFUL ACTS AND STATEMENTS, BUT ONLY BY EVIDENCE OF
UNLAWFUL ACTS AND STATEMENTS. 

AFFILIATION.  WE THINK THE COURT'S INSTRUCTION DEFINING AFFILIATION
(FN13) WAS CORRECT UNDER COUNT II OF THE INDICTMENT AND IN ACCORD WITH
ALL THE PRECEDENTS.  A FAR LESS COMPLETE AND DEFINITIVE INSTRUCTION ON
AFFILIATION WAS GIVEN BY THE TRIAL COURT IN JENCKS V. UNITED STATES,
SUPRA, AND WAS CHALLENGED IN THIS COURT.  THAT INSTRUCTION MERELY
QUOTED DICTIONARY DEFINITIONS AND THEN STATED THAT "AFFILIATION  ...
MEANS SOMETHING LESS THAN MEMBERSHIP BUT MORE THAN SYMPATHY. 
AFFILIATION WITH THE COMMUNIST PARTY MAY BE PROVED BY EITHER
CIRCUMSTANTIAL OR DIRECT EVIDENCE, OR BOTH."  SEE 353 U.S., AT 679. 
THE COURT'S OPINION, TURNING ON THE DOCUMENT PRODUCTION PROBLEM, DID
NOT REACH THAT QUESTION.  HOWEVER THE OPINION OF MR. JUSTICE BURTON DID
REACH THE QUESTION.  IT DID NOT FIND THE INSTRUCTION ERRONEOUS INSOFAR
AS IT WENT, BUT FOUND IT TO BE DEFICIENT BECAUSE "IT DID NOT REQUIRE A
CONTINUING COURSE OF CONDUCT 'ON A FAIRLY PERMANENT BASIS' 'THAT COULD
NOT BE ABRUPTLY ENDED WITHOUT GIVING AT LEAST REASONABLE CAUSE FOR THE
CHARGE OF A BREACH OF GOOD FAITH,'" AND THUS "ALLOWED THE JURY TO
CONVICT PETITIONER ON THE BASIS OF ACTS OF INTERMITTENT COOPERATION." 
353 U.S., AT 679-680.  THE INSTRUCTION GIVEN IN THIS CASE CONTAINED NOT
ONLY THE DEFINITION GIVEN IN THE JENCKS CASE (SEE NOTE 13, PARAGRAPH
ONE) BUT WENT ON TO EMBODY ALMOST EXACTLY THE EXPANDED DEFINITION
PRESCRIBED BY MR. JUSTICE BURTON (SEE NOTE 13, PARAGRAPH TWO).  THE
OPINIONS OF THE COURTS OF APPEALS HAVE UNIFORMLY APPROVED THAT
DEFINITION.  IN BRYSON V. UNITED STATES, 238 F.2D 657, 664, THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FOUND AN IDENTICAL
INSTRUCTION TO BE "FULL AND COMPLETE" AND SAID THAT IT "ADEQUATELY
INFORMED THE JURY OF THE MEANING OF THE TERM AFFILIATED WITH AND
PROVIDED AN ADEQUATE STANDARD FOR EVALUATING THE EVIDENCE."  IN LOHMAN
V. UNITED STATES, 251 F.2D 951, 954, THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT, SPEAKING THROUGH JUDGE, NOW MR. JUSTICE STEWART,
SPECIFICALLY APPROVED THE DEFINITION OF "AFFILIATED WITH" PRESCRIBED BY
MR. JUSTICE BURTON'S OPINION IN THE JENCKS CASE; AND IN TRAVIS V.
UNITED STATES, 247 F.2D 130, 135, THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT APPROVED AN ALMOST IDENTICAL INSTRUCTION. 
(FN14) 

PETITIONER CONTENDS THAT ONE MAY NOT BE "AFFILIATED WITH" THE
COMMUNIST PARTY, WITHIN THE MEANING OF SEC. 9(H), BY ANY DIRECT
RELATIONSHIP WITH THE PARTY, BUT ONLY BY BEING A MEMBER OF ANOTHER
ORGANIZATION THAT IS AFFILIATED WITH THE PARTY, AND THAT THE
INSTRUCTION WAS ERRONEOUS FOR FAILURE SO TO ADVISE THE JURY.  IF
PETITIONER IS RIGHT IN THIS CONTENTION IT WOULD FOLLOW, DESPITE THE
FACT THE QUESTION IS FORECLOSED AGAINST HIM HERE, THAT THE EVIDENCE DID
NOT MAKE A SUBMISSIBLE CASE FOR THE JURY ON COUNT II OF THE INDICTMENT
AND HIS MOTION FOR A DIRECTED VERDICT OF ACQUITTAL ON THAT COUNT SHOULD
HAVE BEEN GRANTED, FOR THERE WAS NO EVIDENCE THAT PETITIONER WAS
AFFILIATED WITH THE COMMUNIST PARTY THROUGH MEMBERSHIP IN SOME OTHER
ORGANIZATION.  IT IS TRUE THAT ONE MAY BE "AFFILIATED WITH" THE
COMMUNIST PARTY THROUGH MEMBERSHIP IN AN ORGANIZATION THAT IS
AFFILIATED WITH THE COMMUNIST PARTY, AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, SUPRA, 339 U.S., AT 406, 421, 450, BUT THAT IS NOT TO SAY ONE
MAY NOT DO SO DIRECTLY, AND EVERY DECISION THAT HAS CONSIDERED THE
MEANING OF "AFFILIATED WITH," AS USED IN SEC. 9(H), HAS HELD THAT ONE
MAY BE DIRECTLY AFFILIATED WITH THE COMMUNIST PARTY.  SEE MR. JUSTICE
BURTON'S SEPARATE CONCURRING OPINION IN JENCKS V. UNITED STATES, SUPRA,
353 U.S., AT 672, 679; AND BRYSON V. UNITED STATES, SUPRA, 238 F.2D, AT
664; LOHMAN V. UNITED STATES, SUPRA, 251 F.2D, AT 954; TRAVIS V. UNITED
STATES, SUPRA, 269 F.2D, AT 942. 

IN A MANNER SIMILAR TO HIS ATTACK UPON THE COURT'S INSTRUCTION
DEFINING MEMBERSHIP, PETITIONER CONTENDS THAT THE INSTRUCTION IN
QUESTION ERRONEOUSLY DEFINED THE PHRASE "AFFILIATED WITH" ONLY IN
SUBJECTIVE TERMS AND WITHOUT OBJECTIVE CRITERIA.  HOWEVER, JUST AS WITH
REGARD TO MEMBERSHIP, AFFILIATION, IN RELATION TO COUNT II IN THIS
CASE, IS NECESSARILY SUBJECTIVE.  BUT THE ULTIMATE FACT OF AFFILIATION,
THOUGH SUBJECTIVE, MAY BE PROVED BY EVIDENCE OF OBJECTIVE FACTS AND
CIRCUMSTANCES HAVING A RATIONAL TENDENCY TO SHOW, AND FROM WHICH THE
JURY MAY RATIONALLY AND LOGICALLY FIND, THE ULTIMATE FACT OF
AFFILIATION.  IT CANNOT BE DISPUTED HERE THAT THERE WAS SUCH EVIDENCE
AT THE TRIAL.   THE COURT'S INSTRUCTION TOLD THE JURY THAT "WHETHER OR
NOT THE DEFENDANT WAS AFFILIATED WITH THE COMMUNIST PARTY  ...  IS A
QUESTION OF FACT WHICH YOU ARE TO DETERMINE FROM ALL THE EVIDENCE IN
THE CASE," AND THAT THEIR DETERMINATION SHOULD BE BASED ON THE
"STATEMENTS MADE OR ACTS DONE BY THE ACCUSED, AND ALL OTHER FACTS AND
CIRCUMSTANCES IN EVIDENCE  ...  ."  WE THINK THAT INSTRUCTION WAS
ADEQUATE. 

PETITIONER ARGUES THAT BECAUSE THE FIRST PARAGRAPH OF THE INSTRUCTION
STATED THAT AFFILIATION "MEANS A RELATIONSHIP SHORT OF AND LESS THAN
MEMBERSHIP IN THE COMMUNIST PARTY, BUT MORE THAN THAT OF MERE SYMPATHY
FOR THE AIMS AND OBJECTIVES OF THE COMMUNIST PARTY," AND THE THIRD
PARAGRAPH OF THE INSTRUCTION STATED THAT "AFFILIATION  ...  MEANS A
RELATIONSHIP WHICH IS EQUIVALENT OR EQUAL TO THAT OF MEMBERSHIP IN ALL
BUT NAME," IT WAS CONTRADICTORY AND CONFUSING.  WE AGREE THAT THE THIRD
PARAGRAPH APPEARS INCONSISTENT WITH THE FIRST.  HOWEVER, IT IS EVIDENT
THAT THE ERRONEOUS THIRD PARAGRAPH COULD NOT HAVE PREJUDICED PETITIONER
FOR IT, THOUGH INCONSISTENT WITH THE CORRECT FIRST PARAGRAPH, EXACTED A
HIGHER STANDARD OF PROOF OF AFFILIATION THAN THE LAW REQUIRED. 

PETITIONER, QUITE UNDERSTANDABLY, WOULD REQUIRE INSTRUCTIONS AS
SPECIFIC AS MATHEMATICAL FORMULAS.   BUT SUCH SPECIFICITY OFTEN IS
IMPOSSIBLE.  THE PHRASES "MEMBER OF" AND "AFFILIATED WITH," ESPECIALLY
WHEN APPLIED TO THE RELATIONSHIP BETWEEN PERSONS AND ORGANIZATIONS THAT
CONCEAL THEIR CONNECTION, CANNOT BE DEFINED IN ABSOLUTE TERMS.  THE
MOST THAT IS POSSIBLE, AND HENCE ALL THAT CAN BE EXPECTED, IS THAT THE
TRIAL COURT SHALL GIVE THE JURY A FAIR STATEMENT OF THE ISSUES - I.E.,
WHETHER PETITIONER WAS A MEMBER OF OR AFFILIATED WITH THE COMMUNIST
PARTY ON THE DATE OF HIS AFFIDAVIT - GIVE A REASONABLE DEFINITION OF
THE TERMS AND OUTLINE THE VARIOUS CRITERIA, SHOWN IN THE EVIDENCE,
WHICH THE JURY MAY CONSIDER IN DETERMINING THE ULTIMATE ISSUES.  WE
BELIEVE THAT THE INSTRUCTIONS IN THIS CASE, WHICH ARE CONSISTENT WITH
ALL THE JUDICIAL PRECEDENTS UNDER SEC. 9(H), ADEQUATELY MET THOSE
TESTS. 

ACCORDINGLY, THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
IT IS SO ORDERED. 

FN1  SECTION 9(H), 29 U.S.C. SEC. 159(H), PROVIDED IN PERTINENT PART
THAT "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
THERE IS ON FILE WITH THE BOARD AN AFFIDAVIT EXECUTED CONTEMPORANEOUSLY
OR WITHIN THE PRECEDING TWELVE-MONTH PERIOD BY EACH OFFICER OF SUCH
LABOR ORGANIZATION  ...  THAT HE IS NOT A MEMBER OF THE COMMUNIST PARTY
OR AFFILIATED WITH SUCH PARTY  ...  ."  THIS SECTION WAS REPEALED BY
PUB. L. 86-257, 86TH CONG., 1ST SESS., SEC. 201(D), 73 STAT. 519, 525. 

FN2  18 U.S.C. SEC. 1001 PROVIDES: 

"WHOEVER, IN ANY MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR
AGENCY OF THE UNITED STATES KNOWINGLY AND WILLFULLY FALSIFIES, CONCEALS
OR COVERS UP BY ANY TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKES
ANY FALSE, FICTITIOUS OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR
MAKES OR USES ANY FALSE WRITING OR DOCUMENT KNOWING THE SAME TO CONTAIN
ANY FALSE, FICTITIOUS OR FRAUDULENT STATEMENT OR ENTRY, SAHLL BE FINED
NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR
BOTH." 

FN3  THE SOLICITOR GENERAL CONCEDES THAT THE F.B.I. NOTES OF
ONDREJKA'S ORAL REPORTS MAY HAVE COME WITHIN THE MEANING OF "STATEMENT"
AS DEFINED BY 18 U.S.C. SEC. 3500(E)(2), NAMELY, "A STENOGRAPHIC ...
RECORDING  ...  WHICH IS A SUBSTANTIALLY VERBATIM RECITAL OF AN ORAL
STATEMENT MADE BY SAID WITNESS TO AN AGENT OF THE GOVERNMENT AND
RECORDED CONTEMPORANEOUSLY WITH THE MAKING OF SUCH ORAL STATEMENT." 

FN4  THESE INSTRUCTION QUESTIONS ARE NOT LIKELY TO BE MOOTED ON
REMAND, BECAUSE IF A NEW TRIAL IS GRANTED IT IS PROBABLE, SINCE THE
COURT OF APPEALS HAS ALREADY APPROVED THEM, THE DISTRICT COURT WOULD
GIVE THE SAME OR SIMILAR INSTRUCTIONS TO THE JURY ON THE NEW TRIAL,
AND, IF PETITIONER SHOULD BE CONVICTED, THE SAME QUESTION WOULD LIKELY
BE BROUGHT HERE AGAIN.  IF WE THEN DISAPPROVED THE INSTRUCTIONS, A
FOURTH TRIAL WOULD BE NECESSARY.  IF, ON THE OTHER HAND, THE DISTRICT
COURT DENIES A NEW TRIAL AND ENTERS A NEW JUDGMENT, IT IS LIKELY THAT
THE COURT OF APPEALS WOULD AGAIN APPROVE THESE INSTRUCTIONS AND THAT
THE SAME QUESTIONS WOULD BE BROUGHT HERE AGAIN.    FN5  THE INSTRUCTION
RESPECTING MEMBERSHIP WAS AS FOLLOWS: 

"THE CRUCIAL ISSUE OF FACT IN THIS CASE IS WHETHER ON DECEMBER 11,
1952, JOHN JOSEPH KILLIAN WAS OR WAS NOT THEN A MEMBER OF THE COMMUNIST
PARTY OR AFFILIATED WITH SUCH PARTY. 

"THE AFFIDVAIT DOES NOT CALL UPON ANY PERSON TO STATE WHETHER OR NOT
IN THE PAST HE HAS EVER BEEN A MEMBER OF THE COMMUNIST PARTY OF
AFFILIATED WITH IT.  A PERSON WHO HAS BEEN AT SOME TIME IN THE PAST A
MEMBER OF THE COMMUNIST PARTY OR AFFILIATED WITH THAT PARTY BUT WHO HAS
TERMINATED SUCH MEMBERSHIP OR AFFILIATION PRIOR TO THE MAKING OF THE
AFFIDAVIT WOULD BE ENTITLED TO SIGN THE AFFIDVAIT UNDER OATH WITHOUT
VIOLATING THE LAW. 

"SINCE THE AFFIDAVIT SPEAKS IN THE PRESENT TENSE ONLY, THE
FUNDAMENTAL ISSUE OF FACT FOR YOU TO DECIDE IS WHETHER OR NOT AT THE
TIME ALLEGED IN THE INDICTMENT THE DEFENDANT KNOWINGLY AND WILLFULLY
USED AN AFFIDAVIT WHICH WAS FALSE AND WHICH HE KNEW TO BE FALSE AT THAT
TIME. 

"WHETHER OR NOT THE DEFENDANT WAS A MEMBER OF THE COMMUNIST PARTY AT
THE TIME ALLEGED IN THE INDICTMENT IS A QUESTION OF FACT WHICH YOU ARE
TO DETERMINE FROM ALL OF THE EVIDENCE IN THE CASE.  IN DETERMINING THIS
QUESTION YOU MUST BEAR IN MIND THAT THE BURDEN OF PROOF RESTS ON THE
GOVERNMENT TO PROVE THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT. 
MEMBERSHIP OR LACK OF MEMBERSHIP IN THE COMMUNIST PARTY MAY BE
ESTABLISHED BY DIRECT AS WELL AS CIRCUMSTANTIAL EVIDENCE. 

"MEMBERSHIP IN THE COMMUNIST PARTY, THE SAME AS MEMBERSHIP IN ANY
OTHER ORGANIZATION, CONSTITUTES THE STATE OF BEING ONE OF THOSE PERSONS
WHO BELONG TO OR COMPRISE THE COMMUNIST PARTY.  IT CONNOTES A STATUS OF
MUTUALITY BETWEEN THE INDIVIDUAL AND THE ORGANIZATION.  THAT IS TO SAY,
THERE MUST BE PRESENT THE DESIRE ON THE PART OF THE INDIVIDUAL TO
BELONG TO THE COMMUNIST PARTY AND A RECOGNITION BY THAT PARTY THAT IT
CONSIDERS HIM AS A MEMBER. 

"INTENT IS A STATE OF MIND AND CAN ONLY BE DETERMINED BY WHAT AN
INDIVIDUAL SAYS AND WHAT HE DOES.   IN DETERMINING THE ISSUE AS TO
WHETHER THE DEFENDANT WAS OR WAS NOT A MEMBER OF THE COMMUNIST PARTY AT
THE TIME ALLEGED IN THE INDICTMENT YOU MAY TAKE INTO CONSIDERATION THE
ACTS AND STATEMENTS OF THIS DEFENDANT, AS DISCLOSED BY THE EVIDENCE,
BEARING IN MIND THAT INDIVIDUAL AND UNRELATED ISOLATED ACTS OF THE
DEFENDANT SHOWING COOPERATION WITH THE COMMUNIST PARTY OR ISOLATED
STATEMENTS OF THE DEFENDANT SHOWING SYMPATHY WITH THE COMMUNIST PARTY
ARE NOT IN THEMSELVES CONCLUSIVE EVIDENCE OF MEMBERSHIP BUT ARE
CIRCUMSTANCES WHICH YOU MAY TAKE INTO CONSIDERATION ALONG WITH ALL THE
OTHER EVIDENCE IN THIS CASE. 

"IN DETERMINING WHETHER OR NOT THE DEFENDANT WAS A MEMBER OF THE
COMMUNIST PARTY AT THE TIME ALLEGED IN THE INDICTMENT YOU MAY TAKE INTO
CONSIDERATION WHETHER THE DEFENDANT: 

"1.  PAID DUES OR MADE ANY FINANCIAL CONTRIBUTIONS TO THE COMMUNIST
PARTY OR COLLECTED ANY FUNDS ON ITS BEHALF: 

"2.  ATTENDED COMMUNIST PARTY MEETINGS, CLASSES, CONFERENCES, OR ANY
OTHER TYPE OF COMMUNIST PARTY GATHERING: 

"3.  HAD MADE HIMSELF SUBJECT TO THE DISCIPLINE OF THE COMMUNIST
PARTY IN ANY FORM WHATSOEVER: 

"4.  PARTICIPATED IN ANY RECRUITING ACTIVITIES ON BEHALF OF THE
COMMUNIST PARTY: 

"5.  HAS EXECUTED ORDERS, PLANS OR DIRECTIVES OF ANY KIND OF THE
COMMUNIST PARTY: 

"6.  HAS ACTED AS AN AGENT, MESSENGER, CORRESPONDENT, ORGANIZER, OR
IN ANY OTHER CAPACITY IN BEHALF OF THE COMMUNIST PARTY: 

"7.  HAS BEEN ACCEPTED TO HIS KNOWLEDGE AS AN OFFICER OR MEMBER OF
THE COMMUNIST PARTY, OR AS ONE TO BE CALLED UPON FOR SERVICES BY OTHER
OFFICERS OR MEMBERS OF THE COMMUNIST PARTY: 

"8.  HAS CONFERRED WITH OFFICERS OR OTHER MEMBERS OF THE COMMUNIST
PARTY IN BEHALF OF ANY PLAN OR ENTERPRISE OF THE COMMUNIST PARTY: 

"9.  HAS SPOKEN OR IN ANY OTHER WAY COMMUNICATED ORDERS, DIRECTIVES
OR PLANS OF THE COMMUNIST PARTY: 

"10.  HAS ADVISED, COUNSELED, OR IN ANY OTHER WAY IMPARTED
INFORMATION, SUGGESTIONS, OR RECOMMENDATIONS, TO OFFICERS OR MEMBERS OF
THE COMMUNIST PARTY, OR TO ANYONE ELSE, IN BEHALF OF THE COMMUNIST
PARTY: 

"11.  HAS INDICATED BY WORD, ACTION, CONDUCT, WRITING, OR IN ANY
OTHER WAY, A WILLINGNESS TO CARRY OUT IN ANY MANNER AND TO ANY DEGREE
THE PLANS, OBJECTIVES OR DESIGNS OF THE COMMUNIST PARTY: 

"12.  HAS IN ANY OTHER WAY PARTICIPATED IN THE ACTIVITIES, PLANNING
OR ACTIONS OF THE COMMUNIST PARTY: 

"THESE ARE SOME OF THE INDICIA OF COMMUNIST PARTY MEMBERSHIP BUT YOU
ARE NOT LIMITED SOLELY TO THOSE I HAVE ENUMERATED.  AS SOLE ARBITERS OF
THE FACTS, IT IS YOUR DUTY TO CONSIDER ALL THE EVIDENCE, EITHER DIRECT
OR CIRCUMSTANTIAL, WHICH BEARS UPON THE QUESTION OF WHETHER OR NOT THE
DEFENDANT WAS A MEMBER OF THE COMMUNIST PARTY ON THE DATE ALLEGED IN
THE INDICTMENT. 

"IN DETERMINING THIS QUESTION, YOU MUST BEAR IN MIND THAT THE BURDEN
OF PROOF RESTS UPON THE GOVERNMENT TO PROVE THE DEFENDANT GUILTY BEYOND
A REASONABLE DOUBT.  IF YOU FIND THAT THE GOVERNMENT HAS SUSTAINED THIS
BURDEN BY PROVING BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS A
MEMBER OF THE COMMUNIST PARTY ON DECEMBER 11, 1952, AS ALLEGED IN THE
INDICTMENT, AND IF YOU FIND, ALSO, THAT THE GOVERNMENT HAS PROVED
BEYOND A REASONABLE DOUBT THE OTHER ESSENTIAL ELEMENTS OF THE OFFENSE
CHARGED IN THE FIRST COUNT OF THE INDICTMENT, AS I HAVE OUTLINED THEM
TO YOU, THEN YOU MUST FIND THE DEFENDANT GUILTY AS TO THE FIRST
COUNT." 

FN6  IN FISHER V. UNITED STATES, SUPRA, THE COURT OF APPEALS FOR THE
NINTH CIRCUIT SAID: "MEMBERSHIP IS COMPOSED OF A DESIRE ON THE PART OF
THE PERSON IN QUESTION TO BELONG TO AN ORGANIZATION AND ACCEPTANCE BY
THE ORGANIZATION.  MOREOVER, CERTAIN ACTIONS ARE USUALLY REQUIRED SUCH
AS PAYING DUES, ATTENDING MEETINGS AND DOING SOME OF THE WORK OF THE
GROUP."  231 F.2D, AT 107. 

FN7  IN LOHMAN V. UNITED STATES, SUPRA, THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT, SPEAKING THROUGH JUDGE, NOW MR. JUSTICE, STEWART, SAID:
"MEMBERSHIP SHOULD BE SO DEFINED AS TO EMPHASIZE TO THE JURY THE
NECESSITY OF FINDING THAT THE APPELLANT DESIRED TO BELONG TO THE
COMMUNIST PARTY, AND THAT THE COMMUNIST PARTY RECOGNIZED THAT IT
CONSIDERED HIM AS A MEMBER.  JENCKS V. UNITED STATES, 353 U.S. AT PAGES
657, 679, 77 S. CT. 1007, 1019 (CONCURRING OPINION); FISHER V. UNITED
STATES, 9 CIR., 1956, 231 F.2D 99, 106-107; TRAVIS V. UNITED STATES, 10
CIR., 1957, 247 F.2D 130, 135-136  ...  ."

FN8  ON RETRIAL OF THE LOHMAN CASE, SUPRA, THE TRIAL COURT DEFINED
MEMBERSHIP FOR THE JURY AS DIRECTED BY THE COURT OF APPEALS ON THE
FIRST APPEAL (SEE NOTE 7) AND THE DEFENDANT WAS AGAIN CONVICTED.  ON
APPEAL, THE COURT OF APPEALS FOR THE SIXTH CIRCUIT REAPPROVED THAT
INSTRUCTION.  LOHMAN V. UNITED STATES, 266 F.2D, AT 4. 

FN9  IN TRAVIS V. UNITED STATES, SUPRA, THE COURT OF APPEALS FOR THE
TENTH CIRCUIT SAID OF THE MEMBERSHIP INSTRUCTION, PRECISELY LIKE THE
ONE HERE, THAT "THE INSTRUCTIONS WERE MEANINGFUL AND CLEAR.  THEY
INCLUDED 11 OF THE 14 INDICIA OF MEMBERSHIP OUTLINED BY CONGRESS IN
AND EMPHASIZED THE PRIMARY ELEMENT OF MEMBERSHIP AS SUGGESTED BY MR.
JUSTICE BURTON IN JENCKS V. UNITED STATES, 353 U.S. 657, 77 S. CT.
1007, 1019, 1 L. ED. 2D 1103, THAT THERE MUST BE PRESENT 'THE DESIRE OF
AN INDIVIDUAL TO BELONG TO THE ORGANIZATION AND A RECOGNITION BY THE
ORGANIZATION THAT IT CONSIDERS HIM AS A MEMBER.'  THIS ADEQUATELY
OUTLINED THE KIND OF ACTS THAT COULD BE CONSIDERED EVIDENCE OF
MEMBERSHIP AND INCLUDED THE IDEA OF THE CONTINUING RECIPROCAL
RELATIONSHIP NECESSARY FOR THAT STATUS."  269 F.2D, AT 942-943. 

FN10  COMPARE THE JENCKS INSTRUCTION, 353 U.S., AT 679, WITH THE 12
NUMBERED PARAGRAPHS IN NOTE 5. 

FN11  IN HUPMAN V. UNITED STATES, SUPRA, THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT SAID THAT A VERY SIMILAR INSTRUCTION WAS "FAIR AND
SUBSTANTIALLY COVERED THE CRUCIAL QUESTIONS OF LAW, WITH A CAREFUL
ANALYSIS OF THE ELEMENTS OF THE OFFENSE CHARGED."  219 F.2D, AT 249. 

FN12  IN FISHER V. UNITED STATES, SUPRA, THE COURT OF APPEALS FOR THE
NINTH CIRCUIT, IN DEALING WITH A SIMILAR QUESTION, SAID:  "THE JURY
SHOULD HAVE BEEN REMINDED OF THE COMPONENTS OF THE TERM MEMBERSHIP
RATHER THAN BE SUPPLIED WITH SYNONYMS."  231 F.2D, AT 107. 

FN13  THE INSTRUCTION RESPECTING AFFILIATION WAS AS FOLLOWS: 

"THE VERB 'AFFILIATED,' AS USED IN THE SECOND COUNT OF THE
INDICTMENT, MEANS A RELATIONSHIP SHORT OF AND LESS THAN MEMBERSHIP IN
THE COMMUNIST PARTY, BUT MORE THAN THAT OF MERE SYMPATHY FOR THE AIMS
AND OBJECTIVES OF THE COMMUNIST PARTY. 

"A PERSON MAY BE FOUND TO BE 'AFFILIATED' WITH AN ORGANIZATION, EVEN
THOUGH NOT A MEMBER, WHEN THERE IS SHOWN TO BE A CLOSE WORKING ALLIANCE
OR ASSOCIATION BETWEEN HIM AND THE ORGANIZATION, TOGETHER WITH A MUTUAL
UNDERSTANDING OR RECOGNITION THAT THE ORGANIZATION CAN RELY AND DEPEND
UPON HIM TO COOPERATE WITH IT, AND TO WORK FOR ITS BENEFIT, FOR AN
INDEFINITE FUTURE PERIOD UPON A FAIRLY PERMANENT BASIS. 

"BRIEFLY STATED, AFFILIATION AS CHARGED IN THE SECOND COUNT OF THE
INDICTMENT, MEANS A RELATIONSHIP WHICH IS EQUIVALENT OR EQUAL TO THAT
OF MEMBERSHIP IN ALL BUT NAME.   "WHETHER OR NOT THE DEFENDANT WAS
AFFILIATED WITH THE COMMUNIST PARTY AT THE TIME ALLEGED IN THE
INDICTMENT IS A QUESTION OF FACT WHICH YOU ARE TO DETERMINE FROM ALL
THE EVIDENCE IN THE CASE.  AFFILIATION OR LACK OF AFFILIATION IN THE
COMMUNIST PARTY MAY BE ESTABLISHED BY DIRECT AS WELL AS CIRCUMSTANTIAL
EVIDENCE. 

"IN DETERMINING THE ISSUE AS TO WHETHER THE DEFENDANT WAS OR WAS NOT
AFFILIATED WITH THE COMMUNIST PARTY AT THE TIME ALLEGED IN THE
INDICTMENT, YOU MAY TAKE INTO CONSIDERATION ANY STATEMENTS MADE OR ACTS
DONE BY THE ACCUSED, AND ALL OTHER FACTS AND CIRCUMSTANCES IN EVIDENCE
WHICH MAY AID DETERMINATION OF THE ISSUE." 

FN14  COMPARE UNITED STATES EX REL. KETTUNEN V. REIMER, 79 F.2D 315
(C.A.2D CIR.), AND BRIDGES V. WIXON, 326 U.S. 135, DEFINING THE TERM
AFFILIATION BUT AS USED IN THE DEPORTATION STATUTES. 

MR. JUSTICE BLACK, DISSENTING. 

AS A PREREQUISITE TO HIS UNION'S RIGHT TO SEEK RELIEF FROM UNFAIR
LABOR PRACTICES BEFORE THE NATIONAL LABOR RELATIONS BOARD, PETITIONER
WAS COMPELLED TO SUBSCRIBE TO AN OATH WHICH STATED:  (1) "I AM NOT A
MEMBER OF THE COMMUNIST PARTY OR AFFILIATED WITH SUCH PARTY;" AND (2)
"I DO NOT BELIEVE IN, AND I AM NOT A MEMBER OF NOR DO I SUPPORT ANY
ORGANIZATION THAT BELIEVES IN OR TEACHES, THE OVERTHROW OF THE UNITED
STATES GOVERNMENT BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL
METHODS."  THE GOVERNMENT NOW CLAIMS THAT IN SUBMITTING TO THIS
COMPULSION PETITIONER MADE FALSE STATEMENTS AS TO HIS MEMBERSHIP IN AND
AFFILIATION WITH THE COMMUNIST PARTY, AND ON THE BASIS OF THESE
ALLEGEDLY FALSE STATEMENTS IT SEEKS TO SEND PETITIONER TO PRISON.  I
AGREE WITH MR. JUSTICE DOUGLAS THAT IF THE GOVERNMENT IS TO BE ALLOWED
TO DO THIS SORT OF THING AT ALL, IT SHOULD ONLY BE UPON A SHOWING THAT
PETITIONER WAS A MEMBER WHO ENGAGED IN ILLEGAL ACTIVITIES IN CONNECTION
WITH HIS COMMUNIST PARTY MEMBERSHIP.  BUT I WISH ALSO TO REITERATE MY
OWN BELIEF THAT OUR CONSTITUTION, PROPERLY INTERPRETED AND APPLIED,
WOULD PROHIBIT THIS PROSECUTION COMPLETELY - REGARDLESS OF THE NATURE
OF PETITIONER'S CONNECTION WITH THE COMMUNIST PARTY.  I THINK THE
CONSTITUTION ABSOLUTELY PROHIBITS THE GOVERNMENT FROM SENDING PEOPLE TO
JAIL FOR "CRIMES" THAT ARISE OUT OF, AND INDEED ARE MANUFACTURED OUT
OF, THE IMPOSITION OF TEST OATHS THAT INVADE THE FREEDOMS OF BELIEF AND
POLITICAL ASSOCIATION - FREEDOMS WHICH THE FOUNDERS OF OUR NATION
RECOGNIZED AS INDISPENSABLE TO A DEMOCRATIC SOCIETY. 

THE TEST OATH IS AN HISTORIC WEAPON AGAINST RELIGIOUS AND POLITICAL
MINORITIES, BUT THE FACT THAT THIS PRACTICE HAS SURVIVED THE CENTURIES
SURELY CANNOT BE POINTED TO EITHER AS A SOURCE OF PRIDE OR, IN MY
JUDGMENT, AS EVIDENCE THAT THE PRACTICE IS CONSTITUTIONAL.  QUITE THE
CONTRARY, I THINK THAT HISTORY SHOWS TEST OATHS TO BE ONE OF THE MOST
GENERALLY AND CONTINUOUSLY HATED AND DANGEROUS FORMS OF GOVERNMENTAL
INTRUSION UPON INDIVIDUAL FREEDOM THAT LIBERTY-LOVING PEOPLE HAVE HAD
TO CONTEND WITH.  IT WAS SQUARELY IN THE FACE OF THIS HISTORY OF ALMOST
UNIVERSAL CONDEMNATION THAT THIS COURT, IN AMERICAN COMMUNICATIONS
ASSN.  V. DOUDS, 339 U.S. 382, UPHELD THE TEST OATH REQUIREMENT UPON
WHICH THIS PROSECUTION IS BASED, RESTING ITS DECISION UPON THE GROUND
THAT HOWEVER OBNOXIOUS TEST OATHS MAY BE, THEY MUST BE ENDURED IN THE
INTEREST OF INTERSTATE COMMERCE.  ELEVEN YEARS HAVE ELAPSED SINCE THAT
DECISION AND I THINK IT IS FAIR TO SAY THAT THIS RECENT EXPERIENCE WITH
TEST OATHS IN THIS COUNTRY HAS DONE NOTHING TO CHANGE THE EVIL
REPUTATION THEY GAINED THROUGHOUT PREVIOUS CENTURIES IN OTHER
COUNTRIES.  THE QUESTION BEFORE US NOW IS THUS NO DIFFERENT FROM THAT
ORIGINALLY PRESENTED TO US IN DOUDS:  CAN CONGRESS, IN THE NAME OF
REGULATION OF INTERSTATE COMMERCE, CIRCUMVENT THE HISTORY, LANGUAGE AND
PURPOSE OF OUR BILL OF RIGHTS AND IMPOSE TEST OATHS DESIGNED TO
PENALIZE POLITICAL OR RELIGIOUS MINORITIES?  I WOULD OVERRULE THE
DECISION IN DOUDS AND ORDER THIS PROSECUTION DISMISSED.  AS I SAID
THERE, "WHETHER RELIGIOUS, POLITICAL, OR BOTH, TEST OATHS ARE
IMPLACABLE FOES OF FREE THOUGHT.  BY APPROVING THEIR IMPOSITION, THIS
COURT HAS INJECTED COMPROMISE INTO A FIELD WHERE THE FIRST AMENDMENT
FORBIDS COMPROMISE."  ID., AT 448. 

MR. JUSTICE DOUGLAS HAS ASKED ME TO ADD THE FOLLOWING:  "I DEDUCE
FROM WHAT THE COURT DOES TODAY THAT THE DOUDS DECISION WAS GOOD FOR ONE
MONDAY ONLY AND THAT IT IS BEING OVERRULED SUB SILENTIO ON THE POINT
NOW IN ISSUE.  I DID NOT PARTICIPATE IN THE DOUDS DECISION AS I WAS
NECESSARILY ABSENT WHEN IT WAS ARGUED.  I WOULD, HOWEVER, BE CONTENT TO
DECIDE THIS CASE WITHIN THE FRAMEWORK WHICH THE DOUDS CASE
ESTABLISHED.  YET SINCE THE DOUDS DECISION IS NOW APPARENTLY DISCARDED
ON THE POINT IN ISSUE, AND SINCE WE FACE ANEW THE PRECISE QUESTION IT
TENDERED, I SEE NO CONSTITUTIONAL ANSWER TO THE OPINIONS OF MR. JUSTICE
BLACK IN THAT CASE AND IN THE PRESENT ONE THAT CONGRESS HAS NO POWER TO
EXACT FROM PEOPLE AFFIRMATIONS OR AFFIDAVITS OF BELIEF, APART FROM THE
ACCEPTED FORM OF OATH OF OFFICE DEMANDED OF ALL OFFICIALS."    MR.
JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE BLACK
CONCUR, DISSENTING. 

THIS IS A PROSECUTION UNDER 18 U.S.C. SEC. 1001 WHICH PENALIZES THE
MAKING OF FALSE STATEMENTS ON A MATTER WITHIN THE JURISDICTION OF A
FEDERAL AGENCY.  THE FALSE STATEMENTS CHARGED IN THE INDICTMENT INVOLVE
29 U.S.C. SEC. 159(H), WHICH IS SEC. 9(H) OF THE NATIONAL LABOR
RELATIONS ACT - THE PROVISION THAT REQUIRED (FN1) THE FILING OF THE SO
CALLED NONCOMMUNIST AFFIDVAIT BEFORE THE NATIONAL LABOR RELATIONS BOARD
COULD ENTERTAIN PETITIONS OF A UNION.  SEE LEEDOM V. INTERNATIONAL
UNION, 352 U.S. 145.  ONE COUNT CHARGED THAT PETITIONER'S AFFIDAVIT,
FILED UNDER SEC. 9(H), THAT HE WAS NOT "A MEMBER OF THE COMMUNIST
PARTY" WAS FALSE.  A SECOND COUNT CHARGED THAT THE AFFIDAVIT WAS ALSO
FALSE IN AVERRING HE WAS NOT "AFFILIATED" WITH THAT PARTY.  AFTER A
JURY TRIAL, PETITIONER WAS CONVICTED UNDER BOTH COUNTS AND SENTENCED TO
TERMS THAT RUN CONCURRENTLY. 

AN INSTRUCTION, OFFERED BY DEFENDANT AND REFUSED BY THE COURT, READS
AS FOLLOWS: 

"WHETHER INTERMITTENT OR REPEATED, THE ACT OR ACTS TENDING TO PROVE
MEMBERSHIP AND THAT BOTH THE DEFENDANT AND THE COMMUNIST PARTY INTENDED
SUCH A RELATIONSHIP TO EXIST ON DECEMBER 11, 1952, MUST BE OF THAT
QUALITY WHICH INDICATES AN ADHERENCE TO OR A FURTHERANCE OF THE ILLEGAL
PURPOSES OR OBJECTIVES OF THE COMMUNIST PARTY AS DISTINGUISHED FROM
MERE COOPERATION WITH IT IN LAWFUL ACTIVITIES.  THE ACT OR ACTS MUST
EVIDENCE A WORKING ALLIANCE TO BRING THE ILLEGAL PROGRAM TO FRUITION. 
UNLESS THERE IS EVIDENCE WHICH CONVINCES YOU BEYOND A REASONABLE DOUBT
OF SOME ILLEGAL PURPOSE OR OBJECTIVE OF THE COMMUNIST PARTY ON DECEMBER
11, 1952 AND THAT THE RELATIONSHIP BETWEEN THE DEFENDANT AND THE
COMMUNIST PARTY ON AND AFTER THIS DATE WAS A RELATIONSHIP BASED ON THE
ILLEGAL PURPOSE OR OBJECTIVE, YOU MUST ACQUIT THE DEFENDANT ON COUNT I
OF THE INDICTMENT." 

I DO NOT SEE HOW DENIAL OF THIS INSTRUCTION WAS CONSISTENT WITH THE
COURT'S DECISION IN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382.  IN
THAT CASE, AS IN THE PRESENT ONE, THE COURT DEALT WITH THE
CONSTITUTIONALITY OF THE "AFFIDAVIT OF NONCOMMUNIST UNION OFFICER." 
THE AFFIDAVIT NOW, AS THEN, READS AS FOLLOWS: 

"THE UNDERSIGNED, BEING DULY SWORN, DEPOSES AND SAYS: 

"1.  I AM A RESPONSIBLE OFFICER OF THE UNION NAMED BELOW. 

"2.  I AM NOT A MEMBER OF THE COMMUNIST PARTY OR AFFILIATED WITH SUCH
PARTY. 

"3.  I DO NOT BELIEVE IN, AND I AM NOT A MEMBER OF NOR DO I SUPPORT
ANY ORGANIZATION THAT BELIEVES IN OR TEACHES, THE OVERTHROW OF THE
UNITED STATES GOVERNMENT BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL
METHODS." 

IT WAS THIS AFFIDAVIT THAT PETITIONER EXECUTED. 

IN DOUDS THE COURT SUSTAINED THE CONSTITUTIONALITY OF THE REQUIRED
AFFIDAVIT BY TAILORING IT TO EXCLUDE MEMBERSHIP THAT DID NOT INCLUDE
BELIEF IN THE OVERTHROW OF THE GOVERNMENT BY FORCE OR OTHER ILLEGAL OR
UNCONSTITUTIONAL MEANS.  CHIEF JUSTICE VINSON SAID FOR THE COURT: 

"WE HOLD, THEREFORE, THAT THE BELIEF IDENTIFIED IN SEC. 9(H) IS A
BELIEF IN THE OBJECTIVE OF OVERTHROW BY FORCE OR BY ANY ILLEGAL OR
UNCONSTITUTIONAL METHODS OF THE GOVERNMENT OF THE UNITED STATES AS IT
NOW EXISTS UNDER THE CONSTITUTION AND LAWS THEREOF."  339 U.S. 382, 407
408. 

MR. JUSTICE FRANKFURTER, WHO JOINED THE COURT'S OPINION, FILED A
SEPARATE OPINION IN WHICH HE PIN-POINTED ONE OF THE OBJECTIONS RUNNING
TO THE BROAD DEFINITION NOW, AS WELL AS THEN, GIVEN THE TERM "MEMBER": 

"I CANNOT DEEM IT WITHIN THE RIGHTFUL AUTHORITY OF CONGRESS TO PROBE
INTO OPINIONS THAT INVOLVE ONLY AN ARGUMENTATIVE DEMONSTRATION OF SOME
COINCIDENTAL PARALLELISM OF BELIEF WITH SOME OF THE BELIEFS OF THOSE
WHO DIRECT THE POLICY OF THE COMMUNIST PARTY, THOUGH WITHOUT ANY
ALLEGIANCE TO IT. TO REQUIRE OATHS AS TO MATTERS THAT OPEN UP SUCH
POSSIBILITIES INVADES THE INNER LIFE OF MEN WHOSE COMPASSIONATE THOUGHT
OR DOCTRINAIRE HOPES MAY BE AS FAR REMOVED FROM ANY DANGEROUS KINSHIP
WITH THE COMMUNIST CREED AS WERE THOSE OF THE FOUNDERS OF THE PRESENT
ORTHODOX POLITICAL PARTIES IN THIS COUNTRY. 

"THE OFFENSIVE PROVISIONS OF SEC. 9(H) LEAVE UNAFFECTED, HOWEVER, THE
VALID PORTIONS OF THE SECTION.  IN SEC. 16, CONGRESS HAS MADE EXPRESS
PROVISION FOR SUCH SEVERANCE.  SINCE THE JUDGMENTS BELOW WERE BASED IN
PART ON WHAT I DEEM UNCONSTITUTIONAL REQUIREMENTS, I CANNOT AFFIRM BUT
WOULD REMAND TO GIVE OPPORTUNITY TO OBEY MERELY THE VALID PORTIONS OF
SEC. 9(H)."  339 U.S. 382, 422. 

BELIEFS ARE AS MUCH IN ISSUE HERE AS THEY WERE IN THE DOUDS CASE.  IF
THAT CASE MEANS ANYTHING, IT MEANS THAT ONE WHO WAS A MEMBER ONLY TO
PROMOTE A LAWFUL CAUSE OF THE PARTY SHOULD NOT BE SUBJECTED TO THE
LEGAL ODIUM THAT ATTACHES TO FULL-FLEDGED MEMBERS.  THE FACT THAT ONE
BELIEVES IN PEACE, DISARMAMENT, A BAN ON NUCLEAR TESTING, OR THE
DISBANDMENT OF NATO MAY PUT HIM OUT OF STEP WITH THE MAJORITY.  BUT
UNLESS WE TOSS TO THE WINDS THE TOLERANCE WHICH A FREE SOCIETY SHOWS
FOR UNORTHODOX, AS WELL AS ORTHODOX, VIEWS, THE FACT THAT A PERSON
EMBRACES LAWFUL VIEWS OF THE PARTY SHOULD NOT ESTABLISH THAT HE IS A
"MEMBER" OF THE PARTY WITHIN THE MEANING OF THE ACT.  MEMBERSHIP, AS
THAT WORD IS USED IN THE ACT, SHOULD BE PROVED BY FACTS WHICH TIE THE
ACCUSED TO THE ILLEGAL AIMS OF THE PARTY.  IF BELIEFS ARE USED TO
CONDEMN THE INDIVIDUAL, WE HAVE OURSELVES GONE A LONG WAY DOWN THE
TOTALITARIAN PATH. 

KILLIAN'S ASSOCIATION WITH THE PARTY APPEARS TO HAVE BEEN RESTRICTED
TO LAWFUL PURPOSES: HE WAS AGAINST THIS COUNTRY'S POLICIES IN INDO
CHINA; HE WAS FOR THE RECOGNITION OF RED CHINA; HE WAS AGAINST
COLONIALISM; HE WAS AGAINST WAR; HE URGED PEOPLE TO SUBSCRIBE TO THE
DAILY WORKER.  HE ATTENDED PARTY MEETINGS, PROMOTED A UNITED FRONT,
DISCUSSED CURRENT POLITICAL EVENTS, RECRUITED NEGROES FOR PARTY
MEMBERSHIP, AND THE LIKE.  IF HIS ATTENDANCE AT THE MEETINGS WAS FOR AN
ILLEGAL PURPOSE, I HAVE FAILED TO FIND IT IN THE RECORD.  I FIND NO
EVIDENCE THAT KILLIAN USED HIS AFFILIATION WITH THE PARTY TO PROMOTE
IMMEDIATELY OR EVEN AT LONG RANGE THE OVERTHROW OF THE GOVERNMENT.  I
FIND NO EVIDENCE THAT HE ORGANIZED VIOLENCE, PROMOTED SABOTAGE,
COLLECTED ARMS, OR SPIED FOR A FOREIGN POWER.  IF HE LIED IN HIS
AFFIDAVIT, HE LIED ABOUT HIS BELIEFS.  BUT INSOFAR AS THE RECORD SHOWS,
HE HAD A RIGHT TO PROMOTE THOSE BELIEFS ALONE OR IN ASSOCIATION WITH
OTHERS.  ALL THE BELIEFS I FIND ESPOUSED BY KILLIAN IN THIS RECORD WERE
PROTECTED BY THE FIRST AMENDMENT.  HE HAD A RIGHT TO ADVOCATE THEM
ALONE OR IN CONJUNCTION WITH OTHERS.  (FN2)  SOME CAUSES ESPOUSED BY
THE COMMUNIST PARTY MAY BE WHOLLY LAWFUL.  SUCH WAS THE CASE IN DE
JONGE V. OREGON, 299 U.S. 353, WHERE SPEECHES WERE MADE "AGAINST
ILLEGAL RAIDS ON WORKERS' HALLS AND HOMES AND AGAINST THE SHOOTING OF
STRIKING LONGSHOREMEN" BY THE POLICE AND "AGAINST CONDITIONS IN THE
COUNTY JAIL," ID., AT 359.  THAT "PEACEABLE ASSEMBLY" AND THAT "LAWFUL
PUBLIC DISCUSSION" (ID., AT 365) WERE HELD NOT SUBJECT TO PUNISHMENT,
EVEN THOUGH THE MEETING WAS UNDER THE AUSPICES OF AN ORGANIZATION THAT
MIGHT HAVE BEEN PROSECUTED FOR OTHER ACTIVITIES.  IF THE DE JONGE CASE
MEANS ANYTHING, IT MEANS THERE MUST BE A SEPARATION OF THE LAWFUL FROM
THE UNLAWFUL ACTIVITIES OF A PARTY WHEN A "MEMBER" IS SUMMONED TO
ACCOUNT FOR HIS ACTIONS. 

IN VARIED SITUATIONS THIS COURT HAS REFUSED TO BRING DOWN ON PEOPLE
HEAVY PENALTIES FOR BEING A "COMMUNIST" OR FOR BEING "AFFILIATED" WITH
THAT PARTY WHERE THE ACTS TO PROVE IT WERE INTRINSICALLY INNOCENT. 

THE COURT TOOK THAT VIEW IN CASES UNDER THE SMITH ACT.  SCALES V.
UNITED STATES, 367 U.S. 203, 222: 

"WE DECLINE TO ATTRIBUTE TO CONGRESS A PURPOSE TO PUNISH NOMINAL
MEMBERSHIP, EVEN THOUGH ACCOMPANIED BY 'KNOWLEDGE' AND 'INTENT,' NOT
MERELY BECAUSE OF THE CLOSE CONSTITUTIONAL QUESTIONS THAT SUCH A
PURPOSE WOULD RAISE  ...  BUT ALSO FOR TWO OTHER REASONS:  IT IS NOT TO
BE LIGHTLY INFERRED THAT CONGRESS INTENDED TO VISIT UPON MERE PASSIVE
MEMBERS THE HEAVY PENALTIES IMPOSED BY THE SMITH ACT.  NOR CAN WE
ASSUME THAT IT WAS CONGRESS' PURPOSE TO ALLOW THE QUALITY OF THE
PUNISHABLE MEMBERSHIP TO BE MEASURED SOLELY BY THE VARYING STANDARDS OF
THAT RELATIONSHIP AS SUBJECTIVELY VIEWED BY DIFFERENT ORGANIZATIONS. 
IT IS MORE REASONABLE TO BELIEVE THAT CONGRESS CONTEMPLATED AN
OBJECTIVE STANDARD FIXED BY THE LAW ITSELF, THEREBY ASSURING AN EVEN
HANDED APPLICATION OF THE STATUTE." 

IN LIGHT OF THE SCALES DECISION AND THE PRIOR DECISION IN YATES V.
UNITED STATES, 354 U.S. 298, IT IS DIFFICULT TO SEE WHY, IF MEMBERSHIP
IS TO BE PUNISHED, A DIFFERENT STANDARD SHOULD BE APPLIED HERE FROM
THAT APPLIED IN THE SMITH ACT.  THE CONSTITUTIONAL OVERTONES ARE AS
PRONOUNCED HERE AS THEY WERE IN YATES AND SCALES.  ATTRIBUTING TO
CONGRESS A PURPOSE TO IMPOSE PUNITIVE MEASURES "UPON MERE PASSIVE
MEMBERS" IS AS UNWARRANTED HERE AS IN THOSE OTHER SITUATIONS.  WE
SHOULD SAY HERE WHAT WAS SAID IN SCALES, SUPRA, PP. 229-230. 

"THE CLAUSE DOES NOT MAKE CRIMINAL ALL ASSOCIATION WITH AN
ORGANIZATION WHICH HAS BEEN SHOWN TO ENGAGE IN ILLEGAL ADVOCACY.  THERE
MUST BE CLEAR PROOF THAT A DEFENDANT 'SPECIFICALLY INTENDS TO
ACCOMPLISH THE AIMS OF THE ORGANIZATION BY RESORT TO VIOLENCE.'  NOTO
V. UNITED STATES, POST, P. 290.  THUS THE MEMBER FOR WHOM THE
ORGANIZATION IS A VEHICLE FOR THE ADVANCEMENT OF LEGITIMATE AIMS AND
POLICIES DOES NOT FALL WITHIN THE BAN OF THE STATUTE: HE LACKS THE
REQUISITE SPECIFIC INTENT 'TO BRING ABOUT THE OVERTHROW OF THE
GOVERNMENT AS SPEEDILY AS CIRCUMSTANCES WOULD PERMIT.'  SUCH A PERSON
MAY BE FOOLISH, DELUDED, OR PERHAPS MERELY OPTIMISTIC, BUT HE IS NOT BY
THIS STATUTE MADE A CRIMINAL."  CF. ROWOLDT V. PERFETTO, 355 U.S. 115. 

TO CONVICT PETITIONER FOR MEMBERSHIP LINKED ONLY TO THE LAWFUL
OBJECTIVES OF THE PARTY IS INCONSISTENT WITH THE HOLDING IN THE DE
JONGE CASE, WITH WHAT THE COURT DID IN YATES AND SCALES, AND WITH THE
DEFINITION OF "MEMBER" SPELLED OUT WITH PARTICULARITY IN THE DOUDS
CASE. 

IT MAY BE THAT A JURY ON THIS RECORD COULD FIND THAT PETITIONER WAS A
MEMBER WHO ADHERED TO THE ILLEGAL PURPOSES OF THE COMMUNIST PARTY.  BUT
UNLESS THE ISSUES ARE SO RESTRICTED, BELIEFS THAT WERE HELD IN THE
DOUDS CASE TO BE IMMUNE FROM THE GOVERNMENT'S INQUIRY NOW BECOME
ELEMENTS OF A CRIME. 

FN1  IT WAS REPEALED BY THE ACT OF SEPTEMBER 14, 1959, 73 STAT. 519,
525. 

FN2  "IT IS ALTOGETHER IMPOSSIBLE TO REASON FROM THE OPINIONS WHICH A
MAN PROFESSES TO HIS FEELINGS AND HIS ACTIONS; AND IN FACT NO PERSON IS
EVER SUCH A FOOL AS TO REASON THUS, EXCEPT WHEN HE WANTS A PRETEXT FOR
PERSECUTING HIS NEIGHBOURS.  A CHRISTIAN IS COMMANDED, UNDER THE
STRONGEST SANCTIONS, TO BE JUST IN ALL HIS DEALINGS.  YET TO HOW MANY
OF THE TWENTY-FOUR MILLIONS OF PROFESSING CHRISTIANS IN THESE ISLANDS
WOULD ANY MAN IN HIS SENSES LEND A THOUSAND POUNDS WITHOUT SECURITY?  A
MAN WHO SHOULD ACT, FOR ONE DAY, ON THE SUPPOSITION THAT ALL THE PEOPLE
ABOUT HIM WERE INFLUENCED BY THE RELIGION WHICH THEY PROFESS, WOULD
FIND HIMSELF RUINED BEFORE NIGHT; AND NO MAN EVER DOES ACT ON THAT
SUPPOSITION IN ANY OF THE ORDINARY CONCERNS OF LIFE, IN BORROWING, IN
LENDING, IN BUYING, OR IN SELLING.  BUT WHEN ANY OF OUR FELLOW
CREATURES ARE TO BE OPPORESSED, THE CASE IS DIFFERENT.  THEN WE
REPRESENT THOSE MOTIVES WHICH WE KNOW TO BE SO FEEBLE FOR GOOD AS
OMNIPOTENT FOR EVIL.  THEN WE LAY TO THE CHARGE OF OUR VICTIMS ALL THE
VICES AND FOLLIES TO WHICH THEIR DOCTRINES, HOWEVER REMOTELY, SEEM TO
TEND.  WE FORGET THAT THE SAME WEAKNESS, THE SAME LAXITY, THE SAME
DISPOSITION TO PREFER THE PRESENT TO THE FUTURE, WHICH MAKE MEN WORSE
THAN A GOOD RELIGION, MAKE THEM BETTER THAN A BAD ONE."  MACAULAY'S
ESSAYS (N.Y. 1869), P. 668. 

MR. JUSTICE BRENNAN, DISSENTING. 

I DISSENT BECAUSE I THINK THE INSTRUCTIONS TO THE JURY ON THE CRUCIAL
DEFINITIONS OF MEMBERSHIP AND AFFILIATION WERE FATALLY DEFECTIVE IN
LIGHT OF OUR DECISION 12 YEARS AGO IN AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382.  THE TRIAL JUDGE REFUSED TO GIVE THE FOLLOWING
INSTRUCTION REQUESTED BY THE PETITIONER: 

"THE COMMUNIST PARTY, LIKE OTHER VOLUNTARY ORGANIZATIONS, SETS FORTH
CONDITIONS WHICH A PERSON MUST ACCEPT IN ORDER TO BECOME AND REMAIN A
MEMBER.  THE BURDEN IS ON THE PROSECUTION TO PROVE BEYOND A REASONABLE
DOUBT WHAT THE CONDITIONS FOR SUCH MEMBERSHIP WERE ON THE DATE IN
QUESTION, WHETHER FOUND IN ITS CONSTITUTION OR ELSEWHERE, AND THAT THE
DEFENDANT ACCEPTED THESE CONDITIONS."  (FN1) 

IN MY VIEW SUCH AN INSTRUCTION WAS REQUIRED UNDER OUR DECISION IN
DOUDS AND IT WAS ERROR TO REFUSE IT.

                                       I. 

DOUDS SUSTAINED SEC. 9(H) AGAINST CONSTITUTIONAL CHALLENGE.  ITS
CONSTITUTIONALITY WAS SUSTAINED NOT, AS HERE, WITHIN THE LIMITED
FRAMEWORK OF A PERJURY PROSECUTION BUT RATHER IN THE LARGE - AGAINST
THE BROADSIDE CHALLENGES ARISING FROM DENIALS OF RECOURSE TO THE
PROCESSES OF THE NATIONAL LABOR RELATIONS BOARD TO UNIONS WHOSE
OFFICERS REFUSED TO EXECUTE THE REQUIRED AFFIDAVITS.  IN THAT CONTEXT
AN INTERPRETATION OF "MEMBER" CLEARLY EMERGES FROM THE DOUDS DECISION. 
YET IN THIS CASE, WHICH SQUARELY PRESENTS AN ISSUE AS TO THE
CORRECTNESS OF AN INSTRUCTION ON THE MEANING OF "MEMBER" AS USED IN
SEC. 9(H), THE MAJORITY MAKES NOT A SINGLE REFERENCE TO THAT
INTERPRETATION, WHICH IS AT WAR WITH THE MAJORITY'S HOLDING HERE. 

ONLY SIX MEMBERS OF THE COURT PARTICIPATED IN DOUDS.  CHIEF JUSTICE
VINSON WROTE AN OPINION FOR HIMSELF AND JUSTICES REED AND BURTON.  MR.
JUSTICE FRANKFURTER WROTE A SEPARATE OPINION BUT, AS REGARDS THE ISSUE
IMMEDIATELY TO BE DISCUSSED, CHIEF JUSTICE VINSON ALSO SPOKE FOR HIM. 
THE OPINION OF CHIEF JUSTICE VINSON IS PARTIALLY A BIFURCATED ONE,
DISTINGUISHING THE CLAUSE FORSWEARING MEMBERSHIP IN OR AFFILIATION WITH
THE COMMUNIST PARTY, (FN2) WHICH THIS CASE IMPLICATES, FROM THE
"BELIEF" CLAUSE (FN3) UNDER WHICH THE GOVERNMENT DOES NOT HERE CHARGE
THE PETITIONER WITH FALSE SWEARING. 

AS TO THE "MEMBERSHIP" PORTION OF THE OATH, THE OPINION OF THE CHIEF
JUSTICE HELD FOR THE MAJORITY OF THE PARTICIPATING JUSTICES THAT
CONGRESS COULD VALIDLY IMPUTE TO THE COMMUNIST PARTY AN INSTITUTIONAL
PREDILECTION FOR POLITICAL STRIKES, AND COULD REASONABLY ACT ON THE
ASSUMPTION THAT MEMBERS OF THE PARTY OR ITS AFFILIATES WOULD PARTAKE OF
THAT PREDISPOSITION.  AS THE CHIEF JUSTICE'S OPINION SAW IT, THE
CRUCIAL ISSUE AS TO THIS PART OF THE OATH WAS WHETHER, GRANTING THE
PERMISSIBILITY OF THE ASSUMPTIONS, SEC. 9(H) INCORPORATED AN ALLOWABLE
MODE OF REGULATION IN VIEW OF ITS UNDOUBTED INHIBITING EFFECT UPON
PARTICIPATION IN LEGITIMATE PARTY ACTIVITIES WITHIN THE AMBIT OF THE
FIRST AMENDMENT.  THE OPINION HELD FOR CONSTITUTIONALITY, CONCLUDING
THAT THE PUBLIC INTEREST IN PREVENTING POLITICAL STRIKES JUSTIFIED THE
TANGENTIAL INTERFERENCE WITH LEGITIMATE ACTIVITY.  NO DEFINITIONAL
PROBLEM RESPECTING "MEMBER" OR "AFFILIATE" WAS CONSIDERED IN THIS
CONTEXT. 

COMING TO THE "BELIEF" CLAUSE, HOWEVER, THE CHIEF JUSTICE FOUND IT
NECESSARY TO CONSTRUE THAT PORTION OF THE OATH AS REFERRING TO BELIEF
IN VIOLENT OVERTHROW "AS AN OBJECTIVE, NOT MERELY A PROPHECY."  (FN4)
HIS VIEW WAS THAT THE CLAUSE, ASSISTED BY THIS GLOSS, PRESENTED NO
DIFFERENT PROBLEM FROM THAT ALREADY DISCUSSED IN CONNECTION WITH
MEMBERSHIP, WITH ONE EXCEPTION WHICH IS CRUCIAL FOR OUR PURPOSES.  THE
SPECIAL PROBLEM WHICH THE CHIEF JUSTICE PERCEIVED WAS ONE OF PROOF: 

"INSOFAR AS A DISTINCTION BETWEEN BELIEFS AND POLITICAL AFFILIATIONS
IS BASED UPON ABSENCE OF ANY 'OVERT ACT' IN THE FORMER CASE, IT IS
RELEVANT, IF AT ALL, IN CONNECTION WITH PROBLEMS OF PROOF.  IN PROVING
THAT ONE SWORE FALSELY THAT HE IS NOT A COMMUNIST, THE ACT OF JOINING
THE PARTY IS CRUCIAL.  PROOF THAT ONE LIED IN SWEARING THAT HE DOES NOT
BELIEVE IN OVERTHROW OF THE GOVERNMENT BY FORCE, ON THE OTHER HAND,
MUST CONSIST IN PROOF OF HIS MENTAL STATE.  TO THAT EXTENT THEY
DIFFER. 

"TO STATE THE DIFFERENCE, HOWEVER, IS BUT TO RECOGNIZE THAT WHILE
OBJECTIVE FACTS MAY BE PROVED DIRECTLY, THE STATE OF A MAN'S MIND MUST
BE INFERRED FROM THE THINGS HE SAYS OR DOES.  OF COURSE WE AGREE THAT
THE COURTS CANNOT 'ASCERTAIN THE THOUGHT THAT HAS HAD NO OUTWARD
MANISFESTATION.'  BUT COURTS AND JURIES EVERY DAY PASS UPON KNOWLEDGE,
BELIEF AND INTENT - THE STATE OF MEN'S MINDS - HAVING BEFORE THEM NO
MORE THAN EVIDENCE OF THEIR WORDS AND CONDUCT, FROM WHICH, IN ORDINARY
HUMAN EXPERIENCE, MENTAL CONDITION MAY BE INFERRED  ...  .  FALSE
SWEARING IN SIGNING THE AFFIDAVIT MUST, AS IN OTHER CASES WHERE MENTAL
STATE IS IN ISSUE, BE PROVED BY THE OUTWARD MANISFESTATIONS OF STATE OF
MIND.  IN THE ABSENCE OF SUCH MANIFESTATIONS, WHICH ARE AS MUCH 'OVERT
ACTS' AS THE ACT OF JOINING THE COMMUNIST PARTY, THERE CAN BE NO
SUCCESSFUL PROSECUTION FOR FALSE SWEARING."  (FN5) 

IT WAS, OF COURSE, OBVIOUS TO THE COURT IN DOUDS THAT THE BELIEF
PORTION OF THE OATH REFERRED TO A SUBJECTIVE PHENOMENON - THE AFFIANT'S
INTERNAL ATTACHMENT TO THE GOAL OF VIOLENT OVERTHROW - WHICH WOULD HAVE
TO BE PROVABLE WHOLLY THROUGH HIS STATEMENTS AND WRITINGS - "THE
OUTWARD MANISFESTATIONS OF STATE OF MIND."  BUT IT IS EQUALLY OBVIOUS
THAT THE DOUDS COURT HAD NO NOTION THAT MEMBERSHIP COULD BE TAKEN AS
SIGNIFYING A SUBJECTIVE RELATIONSHIP OF MUTUALITY, PROVABLE BY ACTIONS
NOT PARTICULARLY BESPEAKING AN EXTERNALLY MANIFESTED TIE.  FOR IT IS
CLEAR BEYOND CAVIL THAT, TO THE COURT IN DOUDS, A CONVICTION UNDER THE
MEMBERSHIP CLAUSE REQUIRED EVIDENCE FROM WHICH COULD BE INFERRED THE
EXISTENCE, BEYOND A REASONABLE DOUBT, OF AN "OBJECTIVE FACT" - "THE ACT
OF JOINING THE PARTY."  THAT THIS IS SO ONLY BECOMES MORE APPARENT FROM
EXAMINATION OF THE SEPARATE OPINIONS OF JUSTICES FRANKFURTER (FN6) AND
JACKSON.  (FN7)  IT IS EVIDENT THAT THE FIVE JUSTICES WHO SUSTAINED THE
MEMBERSHIP CLAUSE CONSIDERED MEMBERSHIP TO INVOLVE AN EXTERNALLY
MANIFESTED ACT OR ACTS OF ASSOCIATION AND ADMISSION, UNDERSTOOD AS SUCH
BY THE PARTY AND BY THE MEMBER.  THIS IS THE "DOUDS SENSE" OF
MEMBERSHIP TO WHICH I SUBSEQUENTLY REFER. 

ACCORDINGLY, SINCE THE COURT TODAY AUTHORIZES AN INSTRUCTION WHICH
PERMITS A JURY TO CONVICT OF FALSE SWEARING AS TO MEMBERSHIP, CONCEIVED
AS A PURELY SUBJECTIVE PHENOMENON, WITHOUT THE JURY'S HAVING HAD TO
CONCLUDE THAT MEMBERSHIP IN THE DOUDS SENSE EXISTED, IT GOES BEYOND
DOUDS AND REPUDIATES A CRITICAL ASSUMPTION OF THAT DECISION.  (FN8)

                                  II. 

THE DISTRICT JUDGE'S INSTRUCTION CONCERNING MEMBERSHIP IS MOST
EFFECTIVELY DEALT WITH BY CONSIDERING, FIRST, HIS DEFINITION OF
"MEMBERSHIP," AND, SECOND, HIS ENUMERATION OF FACTS BY WHICH MEMBERSHIP
SO DEFINED COULD BE PROVEN. 

THE ENTIRE DEFINITION OF MEMBERSHIP WAS THIS: 

"MEMBERSHIP IN THE COMMUNIST PARTY, THE SAME AS MEMBERSHIP IN ANY
OTHER ORGANIZATION, CONSTITUTES THE STATE OF BEING ONE OF THOSE PERSONS
WHO BELONG TO OR COMPRISE THE COMMUNIST PARTY.  IT CONNOTES A STATUS OF
MUTUALITY BETWEEN THE INDIVIDUAL AND THE ORGANIZATION.  THAT IS TO SAY,
THERE MUST BE PRESENT THE DESIRE ON THE PART OF THE INDIVIDUAL TO
BELONG TO THE COMMUNIST PARTY AND A RECOGNITION BY THAT PARTY THAT IT
CONSIDERS HIM AS A MEMBER." 

ALL MUST AGREE THAT IT IS IN THE THIRD SENTENCE ALONE THAT THE
DEFINITION RESIDES; FOR THE FIRST SENTENCE IS MERE TAUTOLOGY, WHILE THE
SECOND IS FAR TOO VAGUE TO BE OF ANY HELP WHATEVER.  THE MOST STRIKING
THING ABOUT THE THIRD SENTENCE IS THAT, ALTHOUGH IT IS AMBIGUOUS,
STANDING ALONE IT MIGHT POSSIBLY BE THOUGHT CONSISTENT WITH DOUDS. 
(FN9)  "RECOGNITION" BY THE PARTY THAT IT "CONSIDERS" ONE TO BE A
MEMBER MIGHT SUGGEST THE OBJECTIVE MANIFESTATION OF ACCEPTANCE - THE
EXTERNALIZED ESTABLISHMENT OF THE TIE - WHICH DOUDS CONCEIVED TO BE
NECESSARY TO THE RELATIONSHIP.  THE ADDITIONAL ELEMENT OF "DESIRE ON
THE PART OF THE INDIVIDUAL TO BELONG" WOULD SIMPLY EXCEPT FROM
"MEMBERSHIP" A FORMAL ASSOCIATION ENTERED INTO UNWITTINGLY OR ON
ACCOUNT OF DURESS.  (FN10)  BUT, IF THE DEFINITION OF MEMBERSHIP IS
QUESTION DOES OMIT THE DOUDS ELEMENT OF OBJECTIVE, OUTWARD ALLIANCE -
AS I BELIEVE IT DOES, IN LIGHT OF THE INSTRUCTIONS WHICH FOLLOWED -
THEN ITS APPLICATION IN THIS CASE RAISES A GRAVE QUESTION OF FAIR
WARNING. 

DOUDS WAS DECIDED ON MAY 8, 1950.  TWO AND ONE-HALF YEARS LATER, ON
DECEMBER 11, 1952, KILLIAN SWORE THAT HE WAS NOT A MEMBER OF THE
COMMUNIST PARTY.  WHY HE SHOULD HAVE SUPPOSED THAT HE WAS DISAVOWING
ANYTHING EXCEPT OBJECTIVELY MANIFESTED DOUDS-SENSE MEMBERSHIP - THE
MOST NATURAL MEANING TO IMPUTE TO THE OATH, AND THE ONE EXPLICITLY
ASSUMED BY THE COURT IN UPHOLDING THE CONSTITUTIONALITY OF ITS EXACTION
- I CANNOT IMAGINE.  TO CONVICT HIM OF PERJURY NOW, ON THE ASSUMPTION
THAT MEMBERSHIP MAY EXIST WITHOUT EXTERNALIZED APPLICATION TO AND
ACCEPTANCE INTO THE ORGANIZATION, IS TO TRAP PETITIONER IN THE BACKLASH
OF AN UNPREDICTABLE SHIFT IN CONSTRUCTION. 

                                            III. 

FOR THE REASONS ABOVE STATED, I CONCLUDE THAT THE DISTRICT JUDGE'S
DEFINITION OF "MEMBERSHIP" COULD HAVE BEEN CORRECT ONLY IF IT MEANT,
AND REASONABLY MUST HAVE BEEN TAKEN TO MEAN, THAT SOME OBJECTIVE ACT OF
JOINING AND ACCEPTANCE IS A REQUISITE ELEMENT.  THE JUDGE DID NOT REST
WITH HIS DEFINITION OF MEMBERSHIP, BUT WENT ON TO INSTRUCT THE JURY
WHAT EVIDENCE IT COULD CONSIDER IN DETERMINING THE MEMBERSHIP ISSUE.  I
DO NOT REACH THE QUESTION WHETHER THE EVIDENCE IN THIS CASE WAS
SUFFICIENT TO CONVICT UNDER A PROPER INSTRUCTION.  IT IS NOT NECESSARY
TO HOLD THAT DIRECT PROOF OF THE ACT OF JOINING IS REQUIRED, IN ORDER
TO CONCLUDE THAT, BECAUSE SO MANY OF THE MATTERS ENUMERATED BY THE
JUDGE ARE DEVOID OF ANY RATIONAL TENDENCY TO SHOW MEMBERSHIP IN THE
DOUDS SENSE, THE CONVICTION MUST BE REVERSED.  THE EFFECT OF THIS PART
OF THE INSTRUCTION WAS EITHER TO AUTHORIZE THE JURY TO CONSIDER
EVIDENCE NOT RELEVANT TO MEMBERSHIP AS PROPERLY DEFINED, OR TO LEAD IT
INTO THINKING THAT IT MIGHT CONVICT ALTHOUGH IT NEVER FOUND MEMBERSHIP
IN THE DOUDS SENSE.  (FN11) 

AMONG THE INDICIA OF MEMBERSHIP WHICH THE JURY WAS AUTHORIZED TO
CONSIDER WERE THE FOLLOWING: 

(A)  WHETHER THE PETITIONER "PAID DUES OR MADE ANY FINANCIAL
CONTRIBUTIONS TO THE COMMUNIST PARTY OR COLLECTED ANY FUNDS ON ITS
BEHALF." 

(B)  WHETHER THE PETITIONER "ATTENDED COMMUNIST PARTY MEETINGS,
CLASSES, CONFERENCES, OR ANY OTHER TYPE OF COMMUNIST PARTY GATHERING." 

(C)  WHETHER PETITIONER "HAS BEEN ACCEPTED TO HIS KNOWLEDGE AS AN
OFFICER OR MEMBER OF THE COMMUNIST PARTY, OR AS ONE TO BE CALLED UPON
FOR SERVICES BY OTHER OFFICERS OR MEMBERS OF THE COMMUNIST PARTY." 

(D)  WHETHER PETITIONER "HAS CONFERRED WITH OFFICERS OR OTHER MEMBERS
OF THE COMMUNIST PARTY IN BEHALF OF ANY PLAN OR ENTERPRISE OF THE
COMMUNIST PARTY." 

(E)  WHETHER PETITIONER "HAS ADVISED, COUNSELED, OR IN ANY OTHER WAY
IMPARTED INFORMATION, SUGGESTIONS, OR RECOMMENDATIONS, TO OFFICERS OR
MEMBERS OF THE COMMUNIST PARTY, OR TO ANYONE ELSE, IN BEHALF OF THE
COMMUNIST PARTY." 

(F)  WHETHER PETITIONER "HAS SPOKEN OR IN ANY OTHER WAY COMMUNICATED
ORDERS, DIRECTIVES OR PLANS OF THE COMMUNIST PARTY." 

SURELY THE ENUMERATED ITALICIZED INDICIA ARE TOO FREE-WHEELING AND
OPEN-ENDED TO BE PERMISSIBLE DESCRIPTIONS OF FACTUAL PHENOMENA FROM
WHICH THE EXISTENCE OF MEMBERSHIP IN ANYTHING RESEMBLING THE DOUDS
SENSE MIGHT BE INFERRED.  AND THE ERROR WAS COMPOUNDED; FOR THE JURY
WERE INSTRUCTED THAT THEY MIGHT CONSIDER WHETHER THE PETITIONER "HAS
INDICATED BY WORD, ACTION, CONDUCT, WRITING, OR IN ANY OTHER WAY, A
WILLINGNESS TO CARRY OUT IN ANY MANNER AND TO ANY DEGREE THE PLANS,
OBJECTIVES OR DESIGNS OF THE COMMUNIST PARTY"; OR WHETHER HE "HAS IN
ANY OTHER WAY PARTICIPATED IN THE ACTIVITIES, PLANNING OR ACTIONS OF
THE COMMUNIST PARTY."  SURELY IT CANNOT BE SAID THAT SUCH INDICIA ARE
PROBATIVE OF MEMBERSHIP IN ANY SENSE OF THAT TERM WHICH COULD JUSTIFY A
LEGISLATIVE ASSUMPTION THAT MEMBERSHIP, SO DEFINED, IMPORTED A
DANGEROUS POSSIBILITY OF RESORT TO POLITICAL STRIKES - THE VERY PREMISE
OF CONSTITUTIONALITY IN DOUDS. 

TO SUM UP:  EITHER THE ENUMERATED FACTUAL MATTERS RECOMMENDED TO THE
JURY'S CONSIDERATION BY THE INSTRUCTION WERE IN SIGNIFICANT MEASURE
IRRELEVANT, OR THEY BETOKENED A DEFINITION OF MEMBERSHIP WHICH SO
RADICALLY DEPARTS FROM OUR OWN PREVIOUS UNDERSTANDING THAT (A) THE
CONSTITUTIONALITY OF SEC. 9(H) SHOULD BE RECONSIDERED IN ITS LIGHT AND
(B) IT IS GROSSLY UNFAIR TO CONVICT KILLIAN OF PERJURY ON THE BASIS OF
THIS NEW DEFINITION WHICH HE CANNOT BE HELD TO HAVE FORESEEN, SWEARING,
AS HE DID, BUT TWO AND ONE-HALF YEARS AFTER THE DOUDS DECISION WAS
ANNOUNCED.  THE DISTRICT COURT SHOULD HAVE DRAFTED AN INSTRUCTION WHICH
WOULD HAVE REQUIRED THE JURY - IN ORDER TO RETURN A CONVICTION - TO
HAVE CONCLUDED THAT KILLIAN WAS A MEMBER IN THE DOUDS SENSE.  THIS IT
CLEARLY FAILED TO DO.  I THEREFORE THINK THAT THE CONVICTION ON COUNT I
MUST BE REVERSED. 

                      IV. 

I THINK THAT THE SAME FATAL DEFECTS INHERE IN THE INSTRUCTION ON
"AFFILIATION."  MY BROTHER FRANKFURTER IN DOUDS EXPRESSED THE VIEW THAT
TO AVOID QUESTIONS OF UNCONSTITUTIONALITY, AFFILIATION SHOULD BE
CONSTRUED IN SEC. 9(H) AS LIMITED TO PROOF OF ACTUAL MEMBERSHIP "IN AN
ORGANIZATION THAT IS IN FACT A CONTROLLED COVER FOR THE COMMUNIST  ...
PARTY," (FN12) AND ALL WHO JOINED THE CHIEF JUSTICE'S OPINION
MANIFESTED THEIR UNDERSTANDING THAT THIS WAS WHAT AFFILIATION MEANT. 
(FN13)  NO INSTRUCTION IN THIS FORM WAS GIVEN.  HOWEVER, UNLIKE THE
CASE AS TO "MEMBERSHIP," NO INSTRUCTION EMBODYING THE DOUDS DEFINITION
OF "AFFILIATION" WAS REQUESTED NOR DID PETITIONER'S COUNSEL IN
OBJECTING TO THE INSTRUCTION RELY ON THE DOUDS INTERPRETATION.  I,
THEREFORE, CAN SEE NO BASIS FOR A REVERSAL OF THE CONVICTION UNDER
COUNT II.  FED. RULES CRIM. PROC. 30. 

                                              V. 

SINCE MY VIEWS HAVE NOT PREVAILED AS REGARDS THE INSTRUCTIONS AND THE
INSTRUCTIONS ACTUALLY GIVEN HAVE BEEN SUSTAINED, I MUST SAY A WORD AS
TO THE COURT'S DISPOSITION OF THE JENCKS ISSUE.  I AGREE WITH THE
DISPOSITION WHICH REMANDS THE CAUSE TO THE DISTRICT COURT FOR A HEARING
CONFINED TO THE ISSUES RAISED BY THE SOLICITOR GENERAL'S
REPRESENTATIONS.  SEE CAMPBELL V. UNITED STATES, 365 U.S. 85.  I ALSO
AGREE THAT IF THE TRIAL COURT FINDS THAT THE INFORMATION CONTAINED ON
THE TWO ONDREJKA RECEIPTS HAD ALREADY BEEN GIVEN TO PETITIONER IN OTHER
STATEMENTS OF ONDREJKA EARLIER TURNED OVER TO PETITIONER, THE DISTRICT
COURT COULD FIND THAT THE ERROR IN FAILING TO PRODUCE THOSE TWO
RECEIPTS WAS HARMLESS.  ROSENBERG V. UNITED STATES, 360 U.S. 367, 377,
FOOTNOTE (DISSENTING OPINION).  BUT IF THE INFORMATION ON THE RECEIPTS
HAS NOT BEEN GIVEN TO PETITIONER IN OTHER STATEMENTS OF ONDREJKA, I
THINK THE DISTRICT JUDGE MUST ORDER A NEW TRIAL FOR THE REASONS STATED
IN MY DISSENT IN ROSENBERG V. UNITED STATES, 360 U.S. 367, 373. 

FN1  THIS IS THE THIRD PARAGRAPH OF DEFENDANT'S PROPOSED INSTRUCTION
NO. 16-17, FOUND AT PP. 606-608 OF THE TRIAL TRANSCRIPT ON FILE WITH
THE CLERK. 

FN2  I.E., "THAT HE IS NOT A MEMBER OF THE COMMUNIST PARTY OR
AFFILIATED WITH SUCH PARTY." 

FN3  I.E., "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."    FN4  339 U.S., AT 407. 

FN5  ID., AT 410-411. 

FN6  MY BROTHER FRANKFURTER JOINED IN THE OPINION OF THE CHIEF
JUSTICE AS IT RELATED TO THE MEMBERSHIP PORTION OF THE OATH.  HE AGREED
THAT THE MEMBERSHIP CLAUSE WAS CONSTITUTIONAL, AND THAT THE BELIEF
CLAUSE WOULD HAVE BEEN CONSTITUTIONAL HAD IT BEEN SUSCEPTIBLE OF THE
GLOSS ENDOWED BY THE CHIEF JUSTICE.  HIS UNDERSTANDING OF THE MEANINGS
TO BE ATTRIBUTED TO "MEMBER" AND "AFFILIATE" CLEARLY EMERGES FROM THE
FOLLOWING, READ IN LIGHT OF HIS HOLDING THAT THE MEMBERSHIP CLAUSE IS
CONSTITUTIONAL:    "IF I POSSIBLY COULD, TO AVOID QUESTIONS OF
UNCONSTITUTIONALITY I WOULD CONSTRUE THE REQUIREMENTS OF SEC. 9(H) TO
BE RESTRICTED TO DISAVOWAL OF ACTUAL MEMBERSHIP IN THE COMMUNIST PARTY,
OR IN AN ORGANIZATION THAT IS IN FACT A CONTROLLED COVER FOR THAT PARTY
OR OF ACTIVE BELIEF, AS A MATTER OF PRESENT POLICY, IN THE OVERTHROW OF
THE GOVERNMENT OF THE UNITED STATES BY FORCE."  339 U.S., AT 421-422. 

FN7  TO MR. JUSTICE JACKSON, WRITING SEPARATELY, THE BELIEF PORTION
OF THE OATH APPEARED UNCONSTITUTIONAL.  HE AGREED THAT THE MEMBERSHIP
CLAUSE COULD WITHSTAND ATTACK, BUT ONLY BECAUSE OF CERTAIN PECULIAR
CHARACTERISTICS HE DISCERNED IN THE COMMUNIST PARTY AND IN THE
CONDITION OF MEMBERSHIP IN IT.  UNDERLYING HIS HOLDING WAS THE
PROPOSITION THAT THE COMMUNIST PARTY WAS A FOREIGN-CONTROLLED
ORGANIZATION DEDICATED TO THE SEIZURE OF POWER BY FORCE; BUT THE FINAL,
AND CRUCIAL, LINK IN THE CHAIN OF REASONING WAS HIS CHARACTERIZATION OF
MEMBERSHIP IN THE PARTY: 

"MEMBERSHIP IN THE COMMUNIST PARTY IS TOTALLY DIFFERENT FROM
MEMBERSHIP IN OTHER POLITICAL PARTIES.  THE PARTY IS A SECRET
CONCLAVE.  MEMBERS ARE ADMITTED ONLY UPON ACCEPTANCE AS RELIABLE AND
AFTER INDOCTRINATION IN ITS POLICIES, TO WHICH THE MEMBER IS FULLY
COMMITTED.  THEY ARE PROVIDED WITH CARDS OR CREDENTIALS, USUALLY ISSUED
UNDER FALSE NAMES SO THAT THE IDENTIFICATION CAN ONLY BE MADE BY
OFFICERS OF THE PARTY WHO HOLD THE CODE.  MOREOVER, EACH PLEDGES
UNCONDITIONAL OBEDIENCE TO PARTY AUTHORITY."  ID., AT 432. 

IT WAS THE FORSWEARING OF THIS TYPE OF MEMBERSHIP - AND NO OTHER -
WHICH MR. JUSTICE JACKSON HELD THAT CONGRESS CONSTITUTIONALLY COULD
REQUIRE. 

FN8  SINCE DOUDS CAN BE AUTHORITY FOR THE CONSTITUTIONALITY OF THE
MEMBERSHIP CLAUSE OF SEC. 9(H) ONLY WITH RESPECT TO THE COURT'S CLEAR
UNDERSTANDING THERE OF THE MEANING OF "MEMBER," TODAY'S APPROVAL OF A
SUBSTANTIALLY ALTERED DEFINITION APPEARS TO MAKE NECESSARY A NEW PIECE
OF CONSTITUTIONAL ADJUDICATION.  TO PUT IT ANOTHER WAY, THERE IS
IMPLICIT IN THE MAJORITY'S OPINION - THOUGH UNSPOKEN - A HOLDING THAT
SEC. 9(H) IS CONSTITUTIONAL WITH THE DEFINITION OF MEMBERSHIP WHICH
OMITS THE DOUDS REQUIREMENT.  BECAUSE I THINK THAT THE TRIAL JUDGE'S
ERRONEOUS INSTRUCTION ITSELF REQUIRED REVERSAL, I EXPRESS NO VIEW ON
THIS CONSTITUTIONAL QUESTION.  NOR IS THIS A MATTER WITHOUT REAL
SIGNIFICANCE.  THE DOUDS COURT FOUND "DELICATE AND DIFFICULT," 339
U.S., AT 400, THE PROBLEM WHETHER MEMBERSHIP IN THE NARROW SENSE THERE
USED SUFFICIENTLY JUSTIFIED AN INFERENCE OF THE LIKELIHOOD OF POLITICAL
STRIKES TO WARRANT THE RESULTING INHIBITION OF PROTECTED ACTIVITY.  TO
SUBSTITUTE FOR THE NARROW DEFINITION OF MEMBERSHIP A CONCEPT THE
EXISTENCE OF WHICH IS PROVABLE BY THE ACTS ENUMERATED BY THE DISTRICT
JUDGE, SEE INFRA, PP. 274-275, QUITE CLEARLY CREATES THE NEED FOR A
FRESH EXERCISE OF JUDGMENT. 

FN9  FOR THIS REASON, I DO NOT UNDERSTAND THAT THE BRIEF SUGGESTION
OF THREE MEMBERS OF THE COURT IN JENCKS, 353 U.S., AT 679, THAT
MEMBERSHIP BE DEFINED IN LANGUAGE SIMILAR TO THAT OF THE THIRD
SENTENCE, LENDS ANY SUPPORT TO TODAY'S NEW HOLDING THAT MEMBERSHIP MAY
BE CONCEIVED FOR OUR PURPOSES AS A STRICTLY SUBJECTIVE PHENOMENON. 

FN10  COMPARE ROWOLDT V. PERFETTO, 355 U.S. 115. 

FN11  THE EFFECT OF THE ENUMERATED INDICIA SURELY WAS NOT
SUFFICIENTLY DISPELLED BY THE HALTING ADMONITION THAT "INDIVIDUAL AND
UNRELATED ISOLATED ACTS OF THE DEFENDANT SHOWING COOPERATION WITH THE
COMMUNIST PARTY OR ISOLATED STATEMENTS OF THE DEFENDANT SHOWING
SYMPATHY WITH THE COMMUNIST PARTY ARE NOT IN THEMSELVES CONCLUSIVE
EVIDENCE OF MEMBERSHIP  ...  ."  TRANSCRIPT, 705. 

FN12  339 U.S., AT 421. 

FN13  ID., AT 406. 
..END :




CRAMP V. BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY 368 U.S. 278 


NO. 72.  ARGUED OCTOBER 16, 1961 - DECIDED DECEMBER 11, 1961 - 125 SO.
2D 554, REVERSED. 


A FLORIDA STATUTE REQUIRES EVERY EMPLOYEE OF THE STATE AND ITS
SUBDIVISIONS TO SWEAR IN WRITING THAT, INTER ALIA, HE HAS NEVER LENT
HIS "AID, SUPPORT, ADVICE, COUNSEL OR INFLUENCE TO THE COMMUNIST
PARTY."  IT REQUIRES IMMEDIATE DISCHARGE OF ANY EMPLOYEE FAILING TO
SUBSCRIBE TO SUCH AN OATH.  APPELLANT, A TEACHER IN A PUBLIC SCHOOL OF
THE STATE, REFUSED TO FILE SUCH AN OATH AND SUED IN A STATE COURT FOR A
JUDGMENT DECLARING THE STATUTE UNCONSTITUTIONAL AND ENJOINING ITS
ENFORCEMENT.  HE ALLEGED, IN EFFECT, THAT HE HAD NOT DONE ANY OF THE
THINGS MENTIONED IN THE STATUTE, AS HE UNDERSTOOD IT, BUT THAT ITS
MEANING WAS SO VAGUE AS TO DEPRIVE HIM OF LIBERTY OR PROPERTY WITHOUT
DUE PROCESS OF LAW.  THE STATE SUPREME COURT HELD THE STATUTE
CONSTITUTIONAL AND DENIED RELIEF.  HELD: 

1.  NOTWITHSTANDING HIS ALLEGATION THAT HE HAD NOT DONE ANY OF THE
THINGS MENTIONED IN THE REQUIRED OATH, APPELLANT WAS NOT WITHOUT
STANDING TO ATTACK THE STATUTE ON THE GROUND THAT IT WAS SO VAGUE AS TO
DEPRIVE HIM OF LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW.  PP. 280
285. 

2.  THE MEANING OF THE REQUIRED OATH IS SO VAGUE AND UNCERTAIN THAT
THE STATE CANNOT, CONSISTENTLY WITH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, FORCE AN EMPLOYEE EITHER TO TAKE SUCH AN OATH, AT
THE RISK OF SUBSEQUENT PROSECUTION FOR PERJURY, OR FACE IMMEDIATE
DISMISSAL FROM PUBLIC SERVICE.  PP. 285-288. 

CRAMP V. BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

A FLORIDA STATUTE REQUIRES EACH EMPLOYEE OF THE STATE OR ITS
SUBDIVISIONS TO EXECUTE A WRITTEN OATH IN WHICH HE MUST SWEAR THAT,
AMONG OTHER THINGS, HE HAS NEVER LENT HIS "AID, SUPPORT, ADVICE,
COUNSEL OR INFLUENCE TO THE COMMUNIST PARTY."  (FN1)  FAILURE TO
SUBSCRIBE TO THIS OATH RESULTS UNDER THE LAW IN THE EMPLOYEE'S
IMMEDIATE DISCHARGE.  (FN2) 

AFTER THE APPELLANT HAD BEEN EMPLOYED FOR MORE THAN NINE YEARS AS A
PUBLIC SCHOOL TEACHER IN ORANGE COUNTY, FLORIDA, IT WAS DISCOVERED IN
1959 THAT HE HAD NEVER BEEN REQUIRED TO EXECUTE HIS STATUTORY OATH. 
(FN3)  WHEN REQUESTED TO DO SO HE REFUSED.  HE THEN BROUGHT AN ACTION
IN THE STATE CIRCUIT COURT ASKING FOR A JUDGMENT DECLARING THE OATH
REQUIREMENT UNCONSTITUTIONAL, AND FOR AN INJUNCTION FORBIDDING THE
APPELLEE, THE ORANGE COUNTY BOARD OF PUBLIC INSTRUCTION, FROM REQUIRING
HIM TO EXECUTE THE OATH AND FROM DISCHARGING HIM FOR HIS FAILURE TO DO
SO.  THE CIRCUIT COURT HELD THE STATUTE VALID AND DENIED THE PRAYER FOR
AN INJUNCTION.  THE SUPREME COURT OF FLORIDA AFFIRMED, 125 SO. 2D 554,
AND THIS IS AN APPEAL FROM THE JUDGMENT OF AFFIRMANCE.  HAVING DOUBT AS
TO THE JURISDICTION OF THIS COURT, WE POSTPONED DECISION OF THAT
PRELIMINARY QUESTION UNTIL THE HEARING OF THE APPEAL ON THE MERITS. 
366 U.S. 934. 

                                    I. 

IN HIS COMPLAINT IN THE STATE CIRCUIT COURT CRAMP ALLEGED THAT "HE
HAS, DOES AND WILL SUPPORT THE CONSTITUTION OF THE UNITED STATES AND OF
THE STATE OF FLORIDA; HE IS NOT A MEMBER OF THE COMMUNIST PARTY; THAT
HE HAS NOT, DOES NOT AND WILL NOT LEND AID, SUPPORT, ADVICE, COUNSEL OR
INFLUENCE TO THE COMMUNIST PARTY; HE DOES NOT BELIEVE IN THE OVERTHROW
OF THE GOVERNMENT OF THE UNITED STATES OR OF THE STATE OF FLORIDA BY
FORCE OR VIOLENCE; HE IS NOT A MEMBER OF ANY ORGANIZATION OR PARTY
WHICH BELIEVES IN OR TEACHES DIRECTLY OR INDIRECTLY THE OVERTHROW OF
THE GOVERNMENT OF THE UNITED STATES OR OF FLORIDA BY FORCE OR
VIOLENCE."  HE FURTHER ALLEGED THAT HE "IS A LOYAL AMERICAN AND DOES
NOT DECLINE TO EXECUTE OR SUBSCRIBE TO THE AFORESAID OATH FOR FEAR OF
THE PENALTIES PROVIDED BY LAW FOR A FALSE OATH." 

IT IS THESE SWORN STATEMENTS IN THE COMPLAINT WHICH RAISE TWO RELATED
BUT SEPARATE QUESTIONS AS TO OUR JURISDICTION OF THIS APPEAL.  FIRST,
DID THE FLORIDA SUPREME COURT REST ITS DECISION, AT LEAST
ALTERNATIVELY, UPON THE GROUND THAT THE APPELLANT, BECAUSE OF THESE
STATEMENTS, LACKED STANDING TO ATTACK THE STATUTORY OATH?  IF SO, WE
SHOULD HAVE TO CONSIDER THE APPLICABILITY OF "THE SETTLED RULE THAT
WHERE THE JUDGMENT OF A STATE COURT RESTS UPON TWO GROUNDS, ONE OF
WHICH IS FEDERAL AND THE OTHER NON-FEDERAL IN CHARACTER, OUR
JURISDICTION FAILS IF THE NON-FEDERAL GROUND IS INDEPENDENT OF THE
FEDERAL GROUND AND ADEQUATE TO SUPPORT THE JUDGMENT."  FOX FILM CORP.
V. MULLER, 296 U.S. 207, 210.  SECONDLY, DO THESE SWORN STATEMENTS OF
THE APPELLANT DEPRIVE HIM OF STANDING TO ATTACK THE STATE STATUTE IN
THIS COURT, IRRESPECTIVE OF WHAT THE FLORIDA COURT MAY HAVE DECIDED? 

THE SUPREME COURT OF FLORIDA RULED THAT "BECAUSE OF THE ALLEGATIONS
OF HIS OWN COMPLAINT THE APPELLANT TEACHER HAS UNEQUIVOCALLY
DEMONSTRATED THAT HE HAS NO STANDING TO ASSAULT THE SUBJECT STATUTE ON
THE GROUNDS THAT IT IS A BILL OF ATTAINDER, OR AN EX POST FACTO LAW." 
125 SO. 2D, AT 560.   WE MAY ASSUME THAT THIS RULING BY THE STATE COURT
WOULD OPERATE TO FORECLOSE OUR CONSIDERATION OF THIS APPEAL IF THE
APPELLANT HAD CONFINED HIS ATTACK UPON THE STATUTE TO THE TWO GROUNDS
MENTIONED.  BUT, IN ADDITION TO ASSERTING THAT THE FLORIDA STATUTE
CONSTITUTES AN EX POST FACTO LAW AND A BILL OF ATTAINDER, THE APPELLANT
HAS FROM THE BEGINNING ALSO CLAIMED THAT THE STATUTE IS
CONSTITUTIONALLY INVALID FOR TWO FURTHER AND QUITE DIFFERENT REASONS -
THAT IT IMPINGES UPON HIS CONSTITUTIONALLY PROTECTED RIGHT OF FREE
SPEECH AND ASSOCIATION, AND THAT THE LANGUAGE OF THE REQUIRED OATH IS
SO VAGUE AND UNCERTAIN AS TO DENY HIM DUE PROCESS OF LAW.  AS WE READ
THE OPINION OF THE FLORIDA SUPREME COURT, BOTH OF THESE FEDERAL
CONSTITUTIONAL ISSUES WERE DECIDED UPON THEIR MERITS, WITHOUT EVEN
IMPLICIT RELIANCE UPON ANY DOCTRINE OF STATE LAW.  (FN4) 

WHETHER THE APPELLANT HAS STANDING TO ATTACK THE STATE STATUTE IN
THIS COURT IS, HOWEVER, A SEPARATE ISSUE, TO WHICH WE MUST BRING OUR
INDEPENDENT JUDGMENT.  TILESTON V. ULLMAN, 318 U.S. 44; DOREMUS V.
BOARD OF EDUCATION, 342 U.S. 429.  THE CONTROLLING QUESTION IS WHETHER
THE APPELLANT "HAS SUSTAINED OR IS IMMEDIATELY IN DANGER OF SUSTAINING
SOME DIRECT INJURY AS THE RESULT OF THE STATUTE'S ENFORCEMENT  ...  ." 
MASSACHUSETTS V. MELLON, 262 U.S. 447, 488. 

IN THE ABSENCE OF THE SPECIFIC ALLEGATIONS IN THE COMPLAINT TO WHICH
ALLUSION HAS BEEN MADE, THERE CAN BE NO DOUBT THAT ENFORCEMENT OF THE
STATE LAW WOULD INFLICT A DIRECT AND SERIOUS INJURY UPON THE
APPELLANT.  THE STATUTE UNEQUIVOCALLY REQUIRES THE APPELLANT TO EXECUTE
THE OATH OR SUFFER IMMEDIATE DISCHARGE FROM PUBLIC EMPLOYMENT.  SEE
UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 91-92; ADLER V. BOARD
OF EDUCATION, 342 U.S. 485.  THE ARGUMENT IS MADE, HOWEVER, THAT THE
SELF-EXONERATING SWORN STATEMENTS IN THE COMPLAINT CONCLUSIVELY SHOW
THAT THIS APPELLANT COULD NOT POSSIBLY SUSTAIN INJURY BY EXECUTING THE
OATH, AND THAT HE CONSEQUENTLY HAS UNDERCUT HIS STANDING TO QUESTION
THE CONSTITUTIONAL VALIDITY OF THE STATE LAW. 

WHATEVER THE MERITS OF THIS ARGUMENT, IT HAS, WE THINK, NO
APPLICATION TO THE APPELLANT'S CLAIM THAT THE STATUTORY OATH IS
UNCONSTITUTIONALLY VAGUE.  THE VICES INHERENT IN AN UNCONSTITUTIONALLY
VAGUE STATUTE - THE RISK OF UNFAIR PROSECUTION AND THE POTENTIAL
DETERRENCE OF CONSTITUTIONALLY PROTECTED CONDUCT - HAVE BEEN REPEATEDLY
POINTED OUT IN OUR DECISIONS.  SEE CONNALLY V. GENERAL CONSTRUCTION
CO., 269 U.S. 385, 391; CLINE V. FRINK DAIRY CO., 274 U.S. 445, 465;
STROMBERG V. CALIFORNIA, 283 U.S. 359; 369; HERNDON V. LOWRY, 301 U.S.
242, 258-259; LANZETTA V. NEW JERSEY, 306 U.S. 451; WINTERS V. NEW
YORK, 333 U.S. 507.  SEE ALSO SMITH V. CALIFORNIA, 361 U.S. 147, 151. 
THESE ARE DANGERS TO WHICH ALL WHO ARE COMPELLED TO EXECUTE AN
UNCONSTITUTIONALLY VAGUE AND INDEFINITE OATH MAY BE EXPOSED.  CF.
THORNHILL V. ALABAMA, 310 U.S. 88, 96-98. 

THERE IS NOTHING IN THE ALLEGATIONS OF THE COMPLAINT TO INDICATE THAT
THE APPELLANT WILL NOT BE SUBJECTED TO THESE HAZARDS TO THE SAME DEGREE
AS OTHER PUBLIC EMPLOYEES REQUIRED TO TAKE THE OATH.  THE MOST THAT CAN
BE SAID OF HIS HAVING SUBSCRIBED TO THE ALLEGATIONS IN QUESTION IS THAT
HE BELIEVES HE COULD TRUTHFULLY EXECUTE THE OATH, AS HE UNDERSTANDS ITS
LANGUAGE.  BUT THE VERY VICE OF WHICH HE COMPLAINS IS THAT THE LANGUAGE
OF THE OATH IS SO VAGUE AND INDEFINITE THAT OTHERS COULD WITH REASON
INTERPRET IT DIFFERENTLY.  HE ARGUES, IN OTHER WORDS, THAT HE COULD
UNCONSTITUTIONALLY BE SUBJECTED TO ALL THE RISKS OF A CRIMINAL
PROSECUTION DESPITE THE SWORN ALLEGATIONS AS TO HIS PAST CONDUCT WHICH
ARE CONTAINED IN THE COMPLAINT.  (FN5)  WE CANNOT SAY THAT THE
APPELLANT LACKS STANDING TO ATTACK THIS STATUTORY OATH AS
UNCONSTITUTIONALLY VAGUE SIMPLY BECAUSE HE NOW PERSONALLY BELIEVES HE
COULD EVENTUALLY PREVAIL IN THE EVENT HE WERE PROSECUTED FOR PERJURY. 
CF. STAUB V. CITY OF BAXLEY, 355 U.S. 313, 319; JONES V. OPELIKA, 316
U.S. 584, 602, DISSENTING OPINION, ADOPTED PER CURIAM ON REHEARING, 319
U.S. 103, 104; SMITH V. CAHOON, 283 U.S. 553, 562. 

WE CONCLUDE THAT THE APPELLANT IS NOT WITHOUT STANDING TO ATTACK THE
FLORIDA STATUTE UPON THE GROUND THAT IT IS SO VAGUE AS TO DEPRIVE HIM
OF LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW, AND WE TURN,
THEREFORE, TO THE MERITS OF THAT CLAIM. 

                         II. 

THE FLORIDA SUPREME COURT FIRST CONSIDERED THE PROVISIONS OF THIS
LEGISLATIVE OATH IN STATE V. DIEZ, 97 SO. 2D 105, A CASE INVOLVING THE
VALIDITY OF AN INDICTMENT FOR PERJURY.  THERE THE COURT UPHELD THE
CONSTITUTIONALITY OF THE LEGISLATION ONLY UPON FINDING IT "  ...
INHERENT IN THE LAW THAT WHEN ONE TAKES THE OATH THAT HE HAS NOT LENT
AID, ADVICE, COUNSEL AND THE LIKE TO THE COMMUNIST PARTY, HE IS
REPRESENTING UNDER OATH THAT HE HAD NOT DONE SO KNOWINGLY."  97 SO. 2D,
AT 110.  IN THE PRESENT CASE THE FLORIDA COURT ADHERED TO THIS
CONSTRUCTION OF THE STATUTE, CHARACTERIZING WHAT HAD BEEN SAID IN DIEZ
AS A RULING THAT "THE ELEMENT OF SCIENTER WAS IMPLICIT IN EACH OF THE
REQUIREMENTS OF THE STATUTE."  125 SO. 2D, AT 557.  WE ACCEPT WITHOUT
QUESTION THIS VIEW OF THE STATUTE'S MEANING, AS OF COURSE WE MUST. 
THIS AUTHORITATIVE INTERPRETATION BY THE FLORIDA SUPREME COURT "PUTS
THESE WORDS IN THE STATUTE AS DEFINITELY AS IF IT HAD BEEN SO AMENDED
BY THE LEGISLATURE."  WINTERS V. NEW YORK, 333 U.S. 507, 514.  SEE
KINGSLEY PICTURES CORP. V. REGENTS, 360 U.S. 684, AT 688; ALBERTSON V.
MILLARD, 345 U.S. 242; UNITED STATES V. BURNISON, 339 U.S. 87; AERO
TRANSIT CO. V. COMMISSIONERS, 332 U.S. 495. 

THE ISSUE TO BE DECIDED, THEN, IS WHETHER A STATE CAN
CONSTITUTIONALLY COMPEL THOSE IN ITS SERVICE TO SWEAR THAT THEY HAVE
NEVER "KNOWINGLY LENT THEIR AID, SUPPORT, ADVICE, COUNSEL, OR INFLUENCE
TO THE COMMUNIST PARTY."  MORE PRECISELY, CAN FLORIDA CONSISTENTLY WITH
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT FORCE AN EMPLOYEE
EITHER TO TAKE SUCH AN OATH, AT THE RISK OF SUBSEQUENT PROSECUTION FOR
PERJURY, OR FACE IMMEDIATE DISMISSAL FROM PUBLIC SERVICE? 

THE PROVISION OF THE OATH HERE IN QUESTION, IT IS TO BE NOTED, SAYS
NOTHING OF ADVOCACY OF VIOLENT OVERTHROW OF STATE OR FEDERAL
GOVERNMENT.  IT SAYS NOTHING OF MEMBERSHIP OR AFFIALIATION WITH THE
COMMUNIST PARTY, PAST OR PRESENT.  THE PROVISION IS COMPLETELY LACKING
IN THESE OR ANY OTHER TERMS SUSCEPTIBLE OF OBJECTIVE MEASUREMENT. 
THOSE WHO TAKE THIS OATH MUST SWEAR, RATHER, THAT THEY HAVE NOT IN THE
UNENDING PAST EVER KNOWINGLY LENT THEIR "AID," OR "SUPPORT," OR
"ADVICE," OR "COUNSEL" OR "INFLUENCE" TO THE COMMUNIST PARTY.  WHAT DO
THESE PHRASES MEAN?  IN THE NOT TOO DISTANT PAST COMMUNIST PARTY
CANDIDATES APPEARED REGULARLY AND LEGALLY ON THE BALLOT IN MANY STATE
AND LOCAL ELECTIONS.  ELSEWHERE THE COMMUNIST PARTY HAS ON OCCASION
ENDORSED OR SUPPORTED CANDIDATES NOMINATED BY OTHERS.  COULD ONE WHO
HAD EVER CAST HIS VOTE FOR SUCH A CANDIDATE SAFELY SUBSCRIBE TO THIS
LEGISLATIVE OATH?  COULD A LAWYER WHO HAD EVER REPRESENTED THE
COMMUNIST PARTY OR ITS MEMBERS SWEAR WITH EITHER CONFIDENCE OR HONESTY
THAT HE HAD NEVER KNOWINGLY LENT HIS "COUNSEL" TO THE PARTY?  COULD A
JOURNALIST WHO HAD EVER DEFENDED THE CONSTITUTIONAL RIGHTS OF THE
COMMUNIST PARTY CONSCIENTIOUSLY TAKE AN OATH THAT HE HAD NEVER LENT THE
PARTY HIS "SUPPORT"?  INDEED, COULD ANYONE HONESTLY SUBSCRIBE TO THIS
OATH WHO HAD EVER SUPPORTED ANY CAUSE WITH CONTEMPORANEOUS KNOWLEDGE
THAT THE COMMUNIST PARTY ALSO SUPPORTED IT? 

THE VERY ABSURDITY OF THESE POSSIBILITIES BRINGS INTO FOCUS THE
EXTRAORDINARY AMBIGUITY OF THE STATUTORY LANGUAGE.  WITH SUCH VAGARIES
IN MIND, IT IS NOT UNREALISTIC TO SUGGEST THAT THE COMPULSION OF THIS
OATH PROVISION MIGHT WEIGH MOST HEAVILY UPON THOSE WHOSE CONSCIENTIOUS
SCRUPLES WERE THE MOST SENSITIVE.  WHILE IT IS PERHAPS FANCIFUL TO
SUPPOSE THAT A PERJURY PROSECUTION WOULD EVER BE INSTITUTED FOR PAST
CONDUCT OF THE KIND SUGGESTED, IT REQUIRES NO STRAIN OF THE IMAGINATION
TO ENVISION THE POSSIBILITY OF PROSECUTION FOR OTHER TYPES OF EQUALLY
GUILTLESS KNOWING BEHAVIOUR.  IT WOULD BE BLINKING REALITY NOT TO
ACKNOWLEDGE THAT THERE ARE SOME AMONG US ALWAYS READY TO AFFIX A
COMMUNIST LABEL UPON THOSE WHOSE IDEAS THEY VIOLENTLY OPPOSE.  AND
EXPERIENCE TEACHES THAT PROSECUTORS TOO ARE HUMAN. 

WE THINK THIS CASE DEMONSTRABLY FALLS WITHIN THE COMPASS OF THOSE
DECISIONS OF THE COURT WHICH HOLD 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.  "NO
ONE MAY BE REQUIRED AT PERIL OF LIFE, LIBERTY OR PROPERTY TO SPECULATE
AS TO THE MEANING OF PENAL STATUTES.  ALL ARE ENTITLED TO BE INFORMED
AS TO WHAT THE STATE COMMANDS OR FORBIDS."  LANZETTA V. NEW JERSEY, 306
U.S. 451, 453.  "WORDS WHICH ARE VAGUE AND FLUID  ... MAY BE AS MUCH OF
A TRAP FOR THE INNOCENT AS THE ANCIENT LAWS OF CALIGULA."  UNITED
STATES V. CARDIFF, 344 U.S. 174, 176.  "IN THE LIGHT OF OUR DECISIONS,
IT APPEARS UPON A MERE INSPECTION THAT THESE GENERAL WORDS AND PHRASES
ARE SO VAGUE AND INDEFINITE THAT ANY PENALTY PRESCRIBED FOR THEIR
VIOLATION CONSTITUTES A DENIAL OF DUE PROCESS OF LAW.  IT IS NOT THE
PENALTY ITSELF THAT IS INVALID BUT THE EXACTION OF OBEDIENCE TO A RULE
OR STANDARD THAT IS SO VAGUE AND INDEFINITE AS TO BE REALLY NO RULE OR
STANDARD AT ALL."  CHAMPLIN REFINING CO. V. CORPORATION COMMISSION OF
OKLAHOMA, 286 U.S. 210, 243.    THE VICE OF UNCONSTITUTIONAL VAGUENESS
IS FURTHER AGGRAVATED WHERE, AS HERE, THE STATUTE IN QUESTION OPERATES
TO INHIBIT THE EXERCISE OF INDIVIDUAL FREEDOMS AFFIRMATIVELY PROTECTED
BY THE CONSTITUTION.  AS WE SAID IN SMITH V. CALIFORNIA, "  ...
STRICTER STANDARDS OF PERMISSIBLE STATUTORY VAGUENESS MAY BE APPLIED TO
A STATUTE HAVING A POTENTIALLY INHIBITING EFFECT ON SPEECH; A MAN MAY
THE LESS BE REQUIRED TO ACT AT HIS PERIL HERE, BECAUSE THE FREE
DISSEMINATION OF IDEAS MAY BE THE LOSER."  361 U.S. 147, AT 151.  "THE
MAINTENANCE OF THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION TO THE END
THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND THAT
CHANGES MAY BE OBTAINED BY LAWFUL MEANS, AN OPPORTUNITY ESSENTIAL TO
THE SECURITY OF THE REPUBLIC, IS A FUNDAMENTAL PRINCIPLE OF OUR
CONSTITUTIONAL SYSTEM.  A STATUTE WHICH UPON ITS FACE, AND AS
AUTHORITATIVELY CONSTRUED, IS SO VAGUE AND INDEFINITE AS TO PERMIT THE
PUNISHMENT OF THE FAIR USE OF THIS OPPORTUNITY IS REPUGNANT TO THE
GUARANTY OF LIBERTY CONTAINED IN THE FOURTEENTH AMENDMENT."  STROMBERG
V. CALIFORNIA, 283 U.S. 359, 369.  SEE ALSO HERNDON V. LOWRY, 301 U.S.
242; THORNHILL V. ALABAMA, 310 U.S. 88; WINTERS V. NEW YORK, 333 U.S.
507. 

AS IN WIEMAN V. UPDEGRAFF, WE ARE NOT CONCERNED HERE WITH THE
QUESTION "WHETHER AN ABSTRACT RIGHT TO PUBLIC EMPLOYMENT EXISTS."  344
U.S. 183, AT 192.  NOR DO WE QUESTION THE POWER OF A STATE TO SAFEGUARD
THE PUBLIC SERVICE FROM DISLOYALTY.  CF. SLOCHOWER V. BOARD OF
EDUCATION, 350 U.S. 551; ADLER V. BOARD OF EDUCATION, 342 U.S. 485.  IT
IS ENOUGH FOR THE PRESENT CASE TO REAFFIRM "THAT CONSTITUTIONAL
PROTECTION DOES EXTEND TO THE PUBLIC SERVANT WHOSE EXCLUSION PURSUANT
TO A STATUTE IS PATENTLY ARBITRARY OR DISCRIMINATORY."  WIEMAN V.
UPDEGRAFF, SUPRA, AT 192.  "THE FACT  ...  THAT A PERSON IS NOT
COMPELLED TO HOLD PUBLIC OFFICE CANNOT POSSIBLY BE AN EXCUSE FOR
BARRING HIM FROM OFFICE BY STATE-IMPOSED CRITERIA FORBIDDEN BY THE
CONSTITUTION."  TORCASO V. WATKINS, 367 U.S. 488, AT 495-496. 
REVERSED. 

FN1  THE STATUTE IN ITS ENTIRETY PROVIDES AS FOLLOWS: 

"ALL PERSONS WHO NOW OR HEREAFTER ARE EMPLOYED BY OR WHO NOW OR
HEREAFTER ARE ON THE PAYROLL OF THE STATE, OR ANY OF ITS DEPARTMENTS
AND AGENCIES, SUBDIVISIONS, COUNTIES, CITIES, SCHOOL BOARDS AND
DISTRICTS OF THE FREE PUBLIC SCHOOL SYSTEM OF THE STATE OR COUNTIES, OR
INSTITUTIONS OF HIGHER LEARNING AND ALL CANDIDATES FOR PUBLIC OFFICE,
ARE HEREBY REQUIRED TO TAKE AN OATH BEFORE ANY PERSON DULY AUTHORIZED
TO TAKE ACKNOWLEDGMENTS OF INSTRUMENTS FOR PUBLIC RECORD IN THE STATE
IN THE FOLLOWING FORM: 

"I, ...... , A CITIZEN OF THE STATE OF FLORIDA AND OF THE UNITED
STATES OF AMERICA, AND BEING EMPLOYED BY OR AN OFFICER OF  ...  AND A
RECIPIENT OF PUBLIC FUNDS AS SUCH EMPLOYEE OR OFFICER, DO HEREBY
SOLEMNLY SWEAR OR AFFIRM THAT I WILL SUPPORT THE CONSTITUTION OF THE
UNITED STATES AND OF THE STATE OF FLORIDA; THAT I AM NOT A MEMBER OF
THE COMMUNIST PARTY; THAT I HAVE NOT AND WILL NOT LEND MY AID, SUPPORT,
ADVICE, COUNSEL OR INFLUENCE TO THE COMMUNIST PARTY; THAT I DO NOT
BELIEVE IN THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF
THE STATE OF FLORIDA BY FORCE OR VIOLENCE; THAT I AM NOT A MEMBER OF
ANY ORGANIZATION OR PARTY WHICH BELIEVES IN OR TEACHES, DIRECTLY OR
INDIRECTLY, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF
FLORIDA BY FORCE OR VIOLENCE. 

"AND SAID OATH SHALL BE FILED WITH THE RECORDS OF THE GOVERNING
OFFICIAL OR EMPLOYING GOVERNMENTAL AGENCY PRIOR TO THE APPROVAL OF ANY
VOUCHER FOR THE PAYMENT OF SALARY, EXPENSES, OR OTHER COMPENSATION." 
FLA. STAT. SEC. 876.05. 

THE SUPREME COURT OF FLORIDA HAS CONSTRUED THE PORTION OF THE
STATUTORY OATH PRINTED IN ITALICS AS FOLLOWS:  "WE THINK THE PERTINENT
CLAUSE, DESPITE ITS UNGRAMMATICAL CONSTRUCTION WAS MEANT TO APPLY
RETROSPECTIVELY AND THAT IT SHOULD BE READ AS IF IT HAD BEEN WRITTEN 'I
HAVE NOT LENT AND WILL NOT LEND'  ...  ."  STATE V. DIEZ, 97 SO. 2D
105, 109. 

FN2  "IF ANY PERSON REQUIRED BY SECS. 876.05-876.10 TO TAKE THE OATH
HEREIN PROVIDED FOR FAILS TO EXECUTE THE SAME, THE GOVERNING AUTHORITY
UNDER WHICH SUCH PERSON IS EMPLOYED SHALL CAUSE SAID PERSON TO BE
IMMEDIATELY DISCHARGED, AND HIS NAME REMOVED FROM THE PAYROLL, AND SUCH
PERSON SHALL NOT BE PERMITTED TO RECEIVE ANY PAYMENT AS AN EMPLOYEE OR
AS AN OFFICER WHERE HE OR SHE WAS SERVING."  FLA. STAT. SEC. 876.06. 
SEE ALSO FLA. STAT. SEC. 876.08, WHICH PROVIDES THAT:  "ANY GOVERNING
AUTHORITY OR PERSON, UNDER WHOM ANY EMPLOYEE IS SERVING OR BY WHOM
EMPLOYED WHO SHALL KNOWINGLY OR CARELESSLY PERMIT ANY SUCH EMPLOYEE TO
CONTINUE IN EMPLOYMENT AFTER FAILING TO COMPLY WITH THE PROVISIONS OF
SECS. 876.05-876.10" SHALL BE SUBJECT TO FINE, IMPRISONMENT, OR BOTH. 

FN3  THE STATUTE REQUIRING EXECUTION OF THE OATH WAS ENACTED IN
1949.  LAWS OF FLORIDA, 1949, C. 25046. 

FN4  THE FLORIDA SUPREME COURT DISPOSED OF THE CLAIMED VIOLATION OF
THE RIGHT OF FREE SPEECH AND ASSOCIATION IN THE FOLLOWING LANGUAGE: 

"IT HAS LONG BEEN RECOGNIZED THAT THE FIRST AMENDMENT FREEDOMS ARE
NOT ABSOLUTES IN AND OF THEMSELVES.  WHEN THEY ARE ASSERTED AS A
BARRIER TO GOVERNMENT ACTION WE ARE CONFRONTED BY THE NECESSITY OF
BALANCING THE ASSERTED PRIVATE RIGHT AGAINST THE ALLEGED PUBLIC
INTEREST.  THE PRIVATE RIGHT WILL CERTAINLY NOT BE LIGHTLY REGARDED. 
HOWEVER, AN INDIRECT ADVERSE EFFECT ON THE ASSERTED RIGHT OF THE
INDIVIDUAL WILL NOT PRECLUDE THE EXERCISE OF GOVERNMENTAL POWER WHEN
THE POWER IS SHOWN TO EXIST AND ITS ASSERTION IS NECESSITATED BY THE
EXIGENCIES OF THE PUBLIC WELLBEING.  BARENBLATT V. UNITED STATES, 360
U.S. 109 ...  .

"AS WE HAVE POINTED OUT IN OTHER PARTS OF THIS OPINION, THE FAILURE
TO TAKE THE REQUIRED OATH DOES NOT WORK AN ADJUDICATION OF GUILT NOR
DOES IT BURDEN THE EMPLOYEE WITH THE RESPONSIBILITY OF PROVING
INNOCENCE AGAINST AN ASSERTION OF GUILT.  STATUTES OF THIS TYPE HAVE
BEEN CONSISTENTLY SUSTAINED ON THE THEORY THAT THEY CONSTITUTE MERELY A
STIPULATION OF QUALIFICATIONS OR DISQUALIFICATIONS FOR PUBLIC
EMPLOYMENT.  THE STATUTE CONTAINS NO PROHIBITION AGAINST THE RIGHT OF A
CITIZEN TO SPEAK OUT OR TO ASSEMBLE PEACEABLY.  IT MERELY PROVIDES THAT
WHEN ONE SPEAKS OUT TO ADVOCATE THE VIOLENT OVERTHROW OF THE GOVERNMENT
OF THE UNITED STATES, OR ASSEMBLES FOR THAT PURPOSE, HE CANNOT
SIMULTANEOUSLY WORK FOR AND DRAW COMPENSATION FROM THE GOVERNMENT HE
SEEKS TO OVERTHROW."  125 SO. 2D, AT 558-559. 

THE COURT DISPOSED OF THE CLAIM THAT THE OATH REQUIREMENT WAS
UNCONSTITUTIONALLY VAGUE AS FOLLOWS:

"CERTAINLY THE INSTANT STATUTE IS PERFECTLY CLEAR IN ITS
REQUIREMENTS.  THERE COULD BE NO DOUBT IN THE MINDS OF ANYONE WHO CAN
READ ENGLISH AS TO THE REQUIREMENTS OF THE STATUTE AND THE EFFECT OF A
FAILURE TO COMPLY.  ADLER V. BOARD OF EDUCATION, SUPRA."  125 SO. 2D,
AT 558. 

FN5  "IF ANY PERSON REQUIRED BY THE PROVISIONS OF SECS 876.05-876.10
TO EXECUTE THE OATH HEREIN REQUIRED EXECUTES SUCH OATH, AND IT IS
SUBSEQUENTLY PROVEN THAT AT THE TIME OF THE EXECUTION OF SAID OATH SAID
INDIVIDUAL WAS GUILTY OF MAKING A FALSE STATEMENT IN SAID OATH, HE
SHALL BE GUILTY OF PERJURY, AND SHALL BE PROSECUTED AND PUNISHED FOR
THE CRIME OF PERJURY IN THE EVENT OF CONVICTION."  FLA. STAT. SEC.
876.10. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS JOIN THE COURT'S JUDGMENT
AND OPINION, BUT ALSO ADHERE TO THE VIEW EXPRESSED IN THEIR DISSENTS IN
ADLER V. BOARD OF EDUCATION, 342 U.S. 485, 496, 508; GARNER V. LOS
ANGELES BOARD, 341 U.S. 716, 730, 731; BARENBLADD V. UNITED STATES, 360
U.S. 109, 134; AND TO THEIR CONCURRENCES IN WIEMAN V. UPDEGRAFF, 344
U.S. 183, 192. 
..END :
























LENOIR FINANCE CO. V. JOHNSON 368 U.S. 289 


NO. 490.  DECIDED DECEMBER 11, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  254 N.C. 129, 118
S.E.2D 543. 


LENOIR FINANCE CO. V. JOHNSON, COMMISSIONER OF REVENUE OF NORTH
CAROLINA. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















HERRON V. PORTLAND STAGES 368 U.S. 289 


NO. 486.  DECIDED DECEMBER 11, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


HERRON V. PORTLAND STAGES, INC., ET AL. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















STATEN ISLAND MENTAL HEALTH SOCIETY V. RICHMOND COUNTY SOCIETY FOR THE
PREVENTION OF CRUELTY TO CHILDREN 368 U.S. 290 


NO. 503.  DECIDED DECEMBER 11, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  SEE 11 APP. DIV. 2D 236, 204 N.Y.S.2D 707. 


STATEN ISLAND MENTAL HEALTH SOCIETY, INC., V. RICHMOND COUNTY SOCIETY
FOR THE PREVENTION OF CRUELTY TO CHILDREN ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














WESTERN UNION TELEGRAPH CO. V. PENNSYLVANIA 368 U.S. 71 


NO. 15.  ARGUED OCTOBER 12, 1961 - DECIDED DECEMBER 4, 1961 - 400 PA.
337, 162 A.2D 617, REVERSED. 


1.  APPELLANT WAS INCORPORATED UNDER THE LAWS OF NEW YORK AND HAS ITS
PRINCIPAL PLACE OF BUSINESS THERE.  IT TRANSACTS A WORLD-WIDE
TELEGRAPHIC MONEY ORDER BUSINESS.  PENNSYLVANIA SUED IN A STATE COURT
AND OBTAINED A JUDGMENT UNDER A STATE STATUTE FOR THE ESCHEAT TO ITSELF
OF THE AMOUNT OF UNCLAIMED MONEY HELD BY APPELLANT AND ARISING OUT OF
MONEY ORDERS BOUGHT IN PENNSYLVANIA AND NEVER CASHED BY THE PAYEES OR
REFUNDED TO THE SENDERS.  HELD: PENNSYLVANIA HAD NO POWER TO RENDER A
JUDGMENT OF ESCHEAT WHICH WOULD BAR NEW YORK OR ANY OTHER STATE FROM
ESCHEATING THE SAME PROPERTY, AND, THEREFORE, THE JUDGMENT WAS VOID
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 72-77. 

2.  THE CONTROVERSY BETWEEN THE STATES AS TO WHICH OF THEM IS
ENTITLED TO THIS MONEY CAN BE SETTLED BY A SUIT IN THIS COURT UNDER
ART. III, SEC. 2, OF THE CONSTITUTION.  PP. 77-80. 

WESTERN UNION TELEGRAPH CO. V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PENNSYLVANIA LAW PROVIDES THAT "ANY REAL OR PERSONAL PROPERTY WITHIN
OR SUBJECT TO THE CONTROL OF THIS COMMONWEALTH  ...  SHALL ESCHEAT TO
THE COMMONWEALTH" WHENEVER IT "SHALL BE WITHOUT A RIGHTFUL OR LAWFUL
OWNER," "REMAIN UNCLAIMED FOR THE PERIOD OF SEVEN SUCCESSIVE YEARS" OR
"THE WHEREABOUTS OF SUCH OWNER  ...  SHALL BE AND REMAIN UNKNOWN FOR
THE PERIOD OF SEVEN SUCCESSIVE YEARS."  (FN1) THESE PROCEEDINGS WERE
BEGUN UNDER THAT LAW IN A PENNSYLVANIA STATE COURT TO ESCHEAT CERTAIN
OBLIGATIONS OF THE WESTERN UNION TELEGRAPH COMPANY - ALLEGED TO BE
"PROPERTY WITHIN" PENNSYLVANIA - TO PAY SUMS OF MONEY OWING TO VARIOUS
PEOPLE WHO HAD LEFT THE MONIES UNCLAIMED FOR MORE THAN SEVEN YEARS AND
WHOSE WHEREABOUTS WERE UNKNOWN.  THE FACTS WERE STIPULATED. 

WESTERN UNION IS A CORPORATION CHARTERED UNDER NEW YORK LAW WITH ITS
PRINCIPAL PLACE OF BUSINESS IN THAT STATE.  IT ALSO DOES BUSINESS AND
HAS OFFICES IN ALL THE OTHER STATES EXCEPT ALASKA AND HAWAII, IN THE
DISTRICT OF COLUMBIA, AND IN FOREIGN COUNTRIES, AND WAS FROM 1916 TO
1934 SUBJECT TO REGULATION BY THE I.C.C. AND SINCE THEN BY THE F.C.C.
IN ADDITION TO SENDING TELEGRAPHIC MESSAGES THROUGHOUT ITS WORLD-WIDE
SYSTEM, IT CARRIES ON A TELEGRAPHIC MONEY ORDER BUSINESS WHICH COMMONLY
WORKS LIKE THIS.  A SENDER GOES TO A WESTERN UNION OFFICE, FILLS OUT AN
APPLICATION AND GIVES IT TO THE COMPANY CLERK WHO WAITS ON HIM TOGETHER
WITH THE MONEY TO BE SENT AND THE CHARGES FOR SENDING IT.  A RECEIPT IS
GIVEN THE SENDER AND A TELEGRAPH MESSAGE IS TRANSMITTED TO THE
COMPANY'S OFFICE NEAREST TO THE PAYEE DIRECTING THAT OFFICE TO PAY THE
MONEY ORDER TO THE PAYEE.  THE PAYEE IS THEN NOTIFIED AND UPON PROPERLY
IDENTIFYING HIMSELF IS GIVEN A NEGOTIABLE DRAFT, WHICH HE CAN EITHER
ENDORSE AND CASH AT ONCE OR KEEP FOR USE IN THE FUTURE.  IF THE PAYEE
CANNOT BE LOCATED FOR DELIVERY OF THE NOTICE, OR FAILS TO CALL FOR THE
DRAFT WITHIN 72 HOURS, THE OFFICE OF DESTINATION NOTIFIES THE SENDING
OFFICE.  THIS OFFICE THEN NOTIFIES THE ORIGINAL SENDER OF THE FAILURE
TO DELIVER AND MAKES A REFUND, AS IT MAKES PAYMENTS TO PAYEES, BY WAY
OF A NEGOTIABLE DRAFT WHICH MAY BE EITHER CASHED IMMEDIATELY OR KEPT
FOR USE IN THE FUTURE. 

IN THE THOUSANDS OF MONEY ORDER TRANSACTIONS CARRIED ON BY THE
COMPANY, IT SOMETIMES HAPPENS THAT IT CAN NEITHER MAKE PAYMENT TO THE
PAYEE NOR MAKE A REFUND TO THE SENDER.  SIMILARLY PAYEES AND SENDERS
WHO ACCEPT DRAFTS AS PAYMENT OR REFUND SOMETIMES FAIL TO CASH THEM. 
FOR THIS REASON LARGE SUMS OF MONEY DUE FROM WESTERN UNION FOR
UNDELIVERED MONEY ORDERS AND UNPAID DRAFTS ACCUMULATE OVER THE YEARS IN
THE COMPANY'S OFFICES AND BANK ACCOUNTS THROUGHOUT THE COUNTRY.  IT IS
AN ACCUMULATION OF THIS KIND THAT PENNSYLVANIA SEEKS TO ESCHEAT HERE -
SPECIFICALLY, THE AMOUNT OF UNDISBURSED MONEY HELD BY WESTERN UNION
ARISING OUT OF MONEY ORDERS BOUGHT IN PENNSYLVANIA OFFICES TO BE
TRANSMITTED TO PAYEES IN PENNSYLVANIA AND OTHER STATES, CHIEFLY OTHER
STATES. 

WESTERN UNION, WHILE NOT CLAIMING THESE MONIES FOR ITSELF, CHALLENGED
PENNSYLVANIA'S RIGHT TO TAKE OWNERSHIP OF THEM FOR ITSELF.  (FN2)
AMONG OTHER GROUNDS THE COMPANY URGED THAT A JUDGMENT OF ESCHEAT FOR
PENNSYLVANIA IN ITS COURTS WOULD NOT PROTECT THE COMPANY FROM MULTIPLE
LIABILITY EITHER IN PENNSYLVANIA OR IN OTHER STATES.  ITS ARGUMENT IN
THIS RESPECT WAS THAT SENDERS OF MONEY ORDERS AND HOLDERS OF DRAFTS
WOULD NOT BE BOUND BY THE PENNSYLVANIA JUDGMENT BECAUSE THE SERVICE BY
PUBLICATION DID NOT, FOR TWO REASONS, GIVE THE STATE COURT
JURISDICTION:  (1) THAT UNDER THE DOCTRINE OF PENNOYER V. NEFF, 95 U.S.
714, THE PRESENCE OF PROPERTY, CALLED A "RES," WITHIN THE STATE IS A
PREREQUISITE FOR SERVICE BY PUBLICATION AND THAT THESE OBLIGATIONS DID
NOT CONSTITUTE SUCH PROPERTY WITHIN PENNSYLVANIA, AND (2) THAT THE
NOTICE BY PUBLICATION GIVEN IN THIS CASE DID NOT GIVE SUFFICIENT
INFORMATION OR AFFORD SUFFICIENT LIKELIHOOD OF ACTUAL NOTICE TO MEET
DUE PROCESS REQUIREMENTS.  IN ADDITION, WESTERN UNION URGED THAT THERE
MIGHT BE ESCHEATS CLAIMED BY OTHER STATES WHICH WOULD NOT BE BOUND BY
THE PENNSYLVANIA JUDGMENT BECAUSE THEY WERE NOT AND COULD NOT BE MADE
PARTIES TO THIS PENNSYLVANIA PROCEEDING.  WESTERN UNION'S APPREHENSIONS
THAT OTHER STATES MIGHT LATER ESCHEAT THE SAME FUNDS WERE BUTTRESSED BY
THE PENNSYLVANIA COURT'S FINDING THAT NEW YORK HAD ALREADY SEIZED AND
ESCHEATED A PART OF THE VERY FUNDS HERE CLAIMED BY PENNSYLVANIA.  WITH
REFERENCE TO THIS THE PENNSYLVANIA COURT OF COMMON PLEAS SAID:  "WE
TAKE THIS OPPORTUNITY OF STATING THAT WE DO NOT RECOGNIZE NEW YORK'S
AUTHORITY TO ESCHEAT THAT MONEY, BUT SINCE IT HAS BEEN DONE WE HAVE NO
JURISDICTION OVER THIS SUM."  73 DAUPHIN COUNTY REP. 160, 173.  BOTH
THE PENNSYLVANIA TRIAL COURT AND THE STATE SUPREME COURT REJECTED THE
CONTENTIONS OF WESTERN UNION AND DECLARED THE UNCLAIMED OBLIGATIONS
ESCHEATED.  73 DAUPHIN COUNTY REP. 160; 74 DAUPHIN COUNTY REP. 49; 400
PA. 337, 162 A.2D 617.  SINCE THE RECORD SHOWED SUBSTANTIAL QUESTIONS
AS TO THE JURISDICTION OF THE PENNSYLVANIA COURTS OVER THE INDIVIDUAL
OWNERS OF THE UNCLAIMED MONIES AND AS TO THE POWER OF THE STATE OF
PENNSYLVANIA TO ENTER A BINDING JUDGMENT THAT WOULD PROTECT WESTERN
UNION AGAINST SUBSEQUENT LIABILITY TO OTHER STATES, WE NOTED PROBABLE
JURISDICTION.  365 U.S. 801. 

WE FIND IT UNNECESSARY TO DECIDE ANY OF WESTERN UNION'S CONTENTIONS
AS TO THE ADEQUACY OF NOTICE TO AND VALIDITY OF SERVICE ON THE
INDIVIDUAL CLAIMANTS BY PUBLICATION.  FOR AS WE VIEW THESE PROCEEDINGS,
THERE IS A FAR MORE IMPORTANT QUESTION RAISED BY THIS RECORD - WHETHER
PENNSYLVANIA HAD POWER AT ALL TO RENDER A JUDGMENT OF ESCHEAT WHICH
WOULD BAR NEW YORK OR ANY OTHER STATE FROM ESCHEATING THIS SAME
PROPERTY. 

PENNSYLVANIA DOES NOT CLAIM AND COULD NOT CLAIM THAT THE SAME DEBTS
OR DEMANDS COULD BE ESCHEATED BY TWO STATES.  SEE STANDARD OIL CO. V.
NEW JERSEY, 341 U.S. 428, 443.  AND OUR PRIOR OPINIONS HAVE RECOGNIZED
THAT WHEN A STATE COURT'S JURISDICTION PURPORTS TO BE BASED, AS HERE,
ON THE PRESENCE OF PROPERTY WITHIN THE STATE, THE HOLDER OF SUCH
PROPERTY IS DEPRIVED OF DUE PROCESS OF LAW IF HE IS COMPELLED TO
RELINQUISH IT WITHOUT ASSURANCE THAT HE WILL NOT BE HELD LIABLE AGAIN
IN ANOTHER JURISDICTION OR IN A SUIT BROUGHT BY A CLAIMANT WHO IS NOT
BOUND BY THE FIRST JUDGMENT.  ANDERSON NATIONAL BANK V. LUCKETT, 321
U.S. 233, 242-243; SECURITY SAVINGS BANK V. CALIFORNIA, 263 U.S. 282,
286-290.  APPLYING THAT PRINCIPLE, THERE CAN BE NO DOUBT THAT WESTERN
UNION HAS BEEN DENIED DUE PROCESS BY THE PENNSYLVANIA JUDGMENT HERE
UNLESS THE PENNSYLVANIA COURTS HAD POWER TO PROTECT WESTERN UNION FROM
ANY OTHER CLAIM, INCLUDING THE CLAIM OF THE STATE OF NEW YORK THAT
THESE OBLIGATIONS ARE PROPERTY "WITHIN" NEW YORK AND ARE THEREFORE
SUBJECT TO ESCHEAT UNDER ITS LAWS.  BUT NEW YORK WAS NOT A PARTY TO
THIS PROCEEDING AND COULD NOT HAVE BEEN MADE A PARTY, AND, OF COURSE,
NEW YORK'S CLAIMS COULD NOT BE CUT OFF WHERE NEW YORK WAS NOT HEARD AS
A PARTY.  MOREOVER, THE POTENTIAL MULTISTATE CLAIMS TO THE "PROPERTY"
WHICH IS THE SUBJECT OF THIS ESCHEAT MAKE IT NOT UNLIKELY THAT VARIOUS
STATES WILL CLAIM IN REM JURISDICTION OVER IT.  THEREFORE, WESTERN
UNION WAS NOT PROTECTED BY THE PENNSYLVANIA JUDGMENT, FOR A STATE COURT
JUDGMENT NEED NOT BE GIVEN FULL FAITH AND CREDIT BY OTHER STATES AS TO
PARTIES OR PROPERTY NOT SUBJECT TO THE JURISDICTION OF THE COURT THAT
RENDERED IT.  PENNOYER V. NEFF, 95 U.S. 714; RILEY V. NEW YORK TRUST
CO., 315 U.S. 343. 

IT IS TRUE THAT, ON THE FACTS THERE PRESENTED, THIS COURT SAID IN
STANDARD OIL CO. V. NEW JERSEY, 341 U.S. 428, 443, THAT "THE DEBTS OR
DEMANDS  ...  HAVING BEEN TAKEN FROM THE APPELLANT COMPANY BY A VALID
JUDGMENT OF NEW JERSEY, THE SAME DEBTS OR DEMANDS AGAINST APPELLANT
(STANDARD OIL) CANNOT BE TAKEN BY ANOTHER STATE.  THE FULL FAITH AND
CREDIT CLAUSE BARS ANY SUCH DOUBLE ESCHEAT."  BUT THE COURT WENT ON TO
POINT OUT THAT "THE CLAIM OF NO OTHER STATE TO THIS PROPERTY IS BEFORE
US AND, OF COURSE, DETERMINATION OF ANY RIGHT OF A CLAIMANT STATE
AGAINST NEW JERSEY FOR THE PROPERTY ESCHEATED BY NEW JERSEY MUST AWAIT
PRESENTATION HERE."  HERE, UNLIKE STANDARD OIL, THERE IS IN REALITY A
CONTROVERSY BETWEEN STATES, POSSIBLY MANY OF THEM, OVER THE RIGHT TO
ESCHEAT PART OR ALL OF THESE FUNDS. 

THE CLAIMS OF NEW YORK ARE PARTICULARLY AGGRESSIVE, NOT MERELY
POTENTIAL, BUT ACTUAL, ACTIVE AND PERSISTENT - BEST SHOWN BY THE FACT
THAT NEW YORK HAS ALREADY ESCHEATED PART OF THE VERY FUNDS ORIGINALLY
CLAIMED BY PENNSYLVANIA.  THESE CLAIMS OF NEW YORK WERE PRESENTED TO US
IN BOTH THE BRIEF AND ORAL ARGUMENT OF THAT STATE AS AMICUS CURIAE.  IN
PRESENTING ITS CLAIMS NEW YORK ALSO CALLED OUR ATTENTION TO THE
POTENTIAL CLAIMS OF OTHER STATES FOR ESCHEAT BASED ON THEIR CONTACTS
WITH THE SEPARATE PHASES OF THE MULTI-STATE TRANSACTIONS OUT OF WHICH
THESE UNCLAIMED FUNDS AROSE, INCLUDING:  THE STATE OF RESIDENCE OF THE
PAYEE, THE STATE OF THE SENDER, THE STATE WHERE THE MONEY ORDER WAS
DELIVERED, AND THE STATE WHERE THE FISCAL AGENT ON WHICH THE MONEY
ORDER WAS DRAWN IS LOCATED.  ARGUMENTS MORE THAN MERELY PLAUSIBLE CAN
DOUBTLESS BE MADE TO SUPPORT CLAIMS OF ALL THESE AND OTHER STATES TO
ESCHEAT ALL OR PARTS OF ALL UNCLAIMED FUNDS HELD BY WESTERN UNION.  AND
THE LARGE AREA OF THE COMPANY'S BUSINESS MAKES IT ENTIRELY POSSIBLE
THAT EVERY STATE MAY NOW OR LATER CLAIM A RIGHT TO PARTICIPATE IN THESE
FUNDS.  BUT EVEN IF, AS SEEMS UNLIKELY, NO OTHER STATE WILL ASSERT SUCH
A CLAIM, THE ACTIVE CONTROVERSY BETWEEN NEW YORK AND PENNSYLVANIA IS
ENOUGH IN ITSELF TO JUSTIFY WESTERN UNION'S CONTENTION THAT TO REQUIRE
IT TO PAY THIS MONEY TO PENNSYLVANIA BEFORE NEW YORK HAS HAD ITS FULL
DAY IN COURT MIGHT FORCE WESTERN UNION TO PAY A SINGLE DEBT MORE THAN
ONCE AND THUS TAKE ITS PROPERTY WITHOUT DUE PROCESS OF LAW. 

OUR CONSTITUTION HAS WISELY PROVIDED A WAY IN WHICH CONTROVERSIES
BETWEEN STATES CAN BE SETTLED WITHOUT SUBJECTING INDIVIDUALS AND
COMPANIES AFFECTED BY THOSE CONTROVERSIES TO A DEPRIVATION OF THEIR
RIGHT TO DUE PROCESS OF LAW.  ARTICLE III, SEC. 2 OF THE CONSTITUTION
GIVES THIS COURT ORIGINAL JURISDICTION OF CASES IN WHICH A STATE IS A
PARTY.  THE SITUATION HERE IS IN ALL MATERIAL RESPECTS LIKE THAT WHICH
CAUSED US TO TAKE JURISDICTION IN TEXAS V. FLORIDA, 306 U.S. 398. 
THERE FOUR STATES SOUGHT TO COLLECT DEATH TAXES OUT OF AN ESTATE.  THE
TAX DEPENDED UPON THE DOMICILE OF THE DECEDENT, AND THIS COURT SAID
THAT "BY THE LAW OF EACH STATE A DECEDENT CAN HAVE ONLY A SINGLE
DOMICILE FOR PURPOSES OF DEATH TAXES  ...  ."  ID., AT 408.  THUS,
THERE WAS ONLY ONE TAX DUE TO ONLY ONE STATE.  THE ESTATE WAS
SUFFICIENT TO PAY THE TAX OF ANY ONE STATE, BUT THE TOTAL OF THE CLAIMS
OF THE FOUR STATES GREATLY EXCEEDED THE NET VALUE OF THE ESTATE.  FOR
THIS REASON, AS WE SAID, THE RISK OF LOSS TO THE STATE OF DOMICILE WAS
REAL AND SUBSTANTIAL, UNLESS WE EXERCISED OUR JURISDICTION.  UNDER
THESE CIRCUMSTANCES WE EXERCISED OUR ORIGINAL JURISDICTION TO AVOID
"THE RISK OF LOSS ENSUING FROM THE DEMANDS IN SEPARATE SUITS OF RIVAL
CLAIMANTS TO THE SAME DEBT OR LEGAL DUTY."  ID., AT 405.  THE RIVAL
STATE CLAIMANTS HERE, AS IN TEXAS V. FLORIDA, CAN INVOKE OUR ORIGINAL
JURISDICTION. 

WHILE WE HAVE PREVIOUSLY DECIDED SOME ESCHEAT CASES WHERE IT WAS
APPARENT THAT RIVAL STATE CLAIMS WERE IN THE OFFING, WE HAVE NOT IN ANY
OF THEM CLOSED THE DOOR TO THE EXERCISE OF OUR JURISDICTION.  IN
CONNECTICUT MUTUAL LIFE INS. CO. V. MOORE, 333 U.S. 541, WE SUSTAINED
THE POWER OF NEW YORK TO TAKE CUSTODY AS A CONSERVATOR OF UNCLAIMED
FUNDS DUE PERSONS INSURED BY THAT COMPANY THROUGH POLICIES ISSUED FOR
DELIVERY IN NEW YORK TO PERSONS THEN RESIDENT IN NEW YORK.  IN DOING SO
WE REJECTED AN ARGUMENT THAT THE STATE OF DOMICILE OF THE INSURANCE
COMPANIES INVOLVED ALONE HAD JURISDICTION TO ESCHEAT.  BUT THERE WE
WERE CAREFUL TO POINT OUT THAT "THE PROBLEM OF WHAT ANOTHER STATE THAN
NEW YORK MAY DO IS NOT BEFORE US.  THAT QUESTION IS NOT PASSED UPON." 
ID., AT 548.  EVEN THOUGH THIS RESERVATION WAS MADE AND NEW YORK ONLY
TOOK CUSTODY OF THE FUNDS, LEAVING THE WAY CLEAR FOR ALL CLAIMANTS TO
BRING ACTION TO RECOVER THEM AT ANY TIME, THERE WERE DISSENTS URGING
THAT A WAY SHOULD BE THEN FOUND FOR THE CONFLICTING CLAIMS OF STATES TO
BE DETERMINED.  SEVERAL YEARS LATER A DIVIDED COURT IN STANDARD OIL CO.
V. NEW JERSEY, 341 U.S. 428, UPHELD THE RIGHT OF NEW JERSEY TO ESCHEAT
CERTAIN UNCLAIMED SHARES OF STOCK AND DIVIDENDS DUE STOCKHOLDERS AND
EMPLOYEES OF THE STANDARD OIL COMPANY.  IN THAT CASE NEW JERSEY'S
JURISDICTION TO ESCHEAT WAS RESTED, AT LEAST IN PART, ON THE FACT THAT
STANDARD OIL WAS A DOMICILIARY OF THAT STATE.  AGAIN, HOWEVER, THE
COURT JUSTIFIED ITS CONCLUSION BY SAYING AS TO CLAIMS OF OTHER STATES:
"THE CLAIM OF NO OTHER STATE TO THIS PROPERTY IS BEFORE US AND, OF
COURSE, DETERMINATION OF ANY RIGHT OF A CLAIMANT STATE AGAINST NEW
JERSEY FOR THE PROPERTY ESCHEATED BY NEW JERSEY MUST AWAIT PRESENTATION
HERE."  ID., AT 443.  LATER NEW YORK SOUGHT LEAVE TO FILE AN ORIGINAL
ACTION HERE AGAINST NEW JERSEY, ALLEGING A CONTROVERSY BETWEEN THE TWO
STATES OVER JURISDICTION TO TAKE CUSTODY OF MONIES ARISING OUT OF
UNCLAIMED TRAVELERS CHECKS, OUTSTANDING FOR MORE THAN 15 YEARS, ISSUED
BY AMERICAN EXPRESS COMPANY, A JOINT STOCK COMPANY ORGANIZED UNDER NEW
YORK LAW WITH ITS PRINCIPAL OFFICE IN NEW YORK.  ANSWERING, NEW JERSEY
POINTED OUT THAT UNDER NEW YORK'S THEN CONTROLLING LAW (FN3) IT
DISCLAIMED ANY PURPOSE TO ESCHEAT PROPERTY CLAIMED FOR ESCHEAT BY ANY
OTHER STATE.  IN THIS STATE OF THE NEW YORK LAW, WE REFUSED TO TAKE
JURISDICTION.  358 U.S. 924.  BY AN ACT EFFECTIVE MARCH 29, 1960, (FN4)
NEW YORK AMENDED ITS LAW ELIMINATING THE DISCLAIMER AND NOW STRONGLY
ASSERTS ITS CLAIM TO THESE FUNDS UNDER ITS NEW LAW.    THE RAPIDLY
MULTIPLYING STATE ESCHEAT LAWS, ORIGINALLY APPLYING ONLY TO LAND AND
OTHER TANGIBLE THINGS BUT RECENTLY MOVING INTO THE ELUSIVE AND WIDE
RANGING FIELD OF INTANGIBLE TRANSACTIONS HAVE PRESENTED PROBLEMS OF
GREAT IMPORTANCE TO THE STATES AND PERSONS WHOSE RIGHTS WILL BE
ADVERSELY AFFECTED BY ESCHEATS.  (FN5)  THIS MAKES IT IMPERATIVE THAT
CONTROVERSIES BETWEEN DIFFERENT STATES OVER THEIR RIGHT TO ESCHEAT
INTANGIBLES BE SETTLED IN A FORUM WHERE ALL THE STATES THAT WANT TO DO
SO CAN PRESENT THEIR CLAIMS FOR CONSIDERATION AND FINAL, AUTHORITATIVE
DETERMINATION.  OUR COURT HAS JURISDICTION TO DO THAT.  WHETHER AND
UNDER WHAT CIRCUMSTANCES WE WILL EXERCISE OUR JURISDICTION TO HEAR AND
DECIDE THESE CONTROVERSIES OURSELVES IN PARTICULAR CASES, AND WHETHER
WE MIGHT UNDER SOME CIRCUMSTANCES REFER THEM TO UNITED STATES DISTRICT
COURTS, WE NEED NOT NOW DETERMINE.  CF. MASSACHUSETTS V. MISSOURI, 308
U.S. 1, 18-20.  NOR NEED WE, AT THIS TIME, ATTEMPT TO DECIDE THE
DIFFICULT LEGAL QUESTIONS PRESENTED WHEN MANY DIFFERENT STATES CLAIM
POWER TO ESCHEAT INTANGIBLES INVOLVED IN TRANSACTIONS TAKING PLACE IN
PART IN MANY STATES.  IT WILL BE TIME ENOUGH TO CONSIDER THOSE
COMPLICATED PROBLEMS WHEN ALL INTERESTED STATES - ALONG WITH ALL OTHER
CLAIMANTS - CAN BE AFFORDED A FULL HEARING AND A FINAL, AUTHORITATIVE
DETERMINATION.  (FN6)  IT IS PLAIN THAT PENNSYLVANIA COURTS, WITH NO
POWER TO BRING OTHER STATES BEFORE THEM, CANNOT GIVE SUCH HEARINGS. 
THEY HAVE NOT DONE SO HERE; THEY HAVE NOT ATTEMPTED TO DO SO.  AS A
RESULT, THEIR JUDGMENTS, WHICH CANNOT, WITH THE ASSURANCE THAT COMES
ONLY FROM A FULL TRIAL WITH ALL NECESSARY PARTIES PRESENT, PROTECT
WESTERN UNION FROM HAVING TO PAY THE SAME SINGLE OBLIGATION TWICE,
CANNOT STAND.  WHEN THIS SITUATION DEVELOPED, THE PENNSYLVANIA COURTS
SHOULD HAVE DISMISSED THE CASE. 

ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF PENNSYLVANIA IS
REVERSED, AND THE CAUSE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  ACT OF JULY 29, 1953, P.L. 986, SEC. 1 (27 PURDON'S STATUTES
SEC. 333). 

FN2  IN ITS ANSWER WESTERN UNION DID CLAIM THESE MONIES, BUT IT HAS
SINCE ABANDONED THIS GROUND. 

FN3  MCKINNEY'S N.Y. LAWS, SEC. 1309, ABANDONED PROPERTY LAW. 

FN4  N.Y. LAWS 1960, C. 307. 

FN5  THE MAGNITUDE OF THE PROBLEM INVOLVED IS ILLUSTRATED BY THE FACT
THAT, SINCE 1946, AT LEAST 20 STATES HAVE ENACTED LEGISLATION TO BRING
OR ENLARGE THE COVERAGE OF INTANGIBLE TRANSACTIONS UNDER THEIR ESCHEAT
LAWS.  FLORIDA, 1961; IDAHO, 1961; ILLINOIS, 1961; KENTUCKY, 1960;
VIRGINIA, 1960; CALIFORNIA, 1959; NEW MEXICO, 1959; LOUISIANA, 1958;
OREGON, 1957; UTAH, 1957; ARIZONA, 1956; WASHINGTON, 1955;
PENNSYLVANIA, 1953; MASSACHUSETTS, 1950; ARKANSAS, 1949; CONNECTICUT,
1949; NEW YORK, 1949; MICHIGAN, 1947; NORTH CAROLINA, 1947; NEW JERSEY,
1946.  OF THESE, 10 - ARIZONA, CALIFORNIA, FLORIDA, IDAHO, ILLINOIS,
NEW MEXICO, OREGON, UTAH, VIRGINIA, AND WASHINGTON - HAVE ADOPTED IN
SUBSTANCE THE UNIFORM DISPOSITION OF UNCLAIMED PROPERTY ACT PROMULGATED
BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS IN
1955.  IN ADDITION LEGISLATION HAS BEEN UNDER CONSIDERATION BY OTHER
STATES.  FOR DISCUSSION OF THIS AND A GENERAL DESCRIPTION OF THE
GROWING IMPORTANCE OF THESE LAWS, SEE ELY, ESCHEATS:  PERILS AND
PRECAUTIONS, 15 BUS.  LAW.  791. 

THE RECORD IN THIS VERY CASE SHOWS THAT MASSACHUSETTS IS LAYING CLAIM
TO FUNDS OF WESTERN UNION ON PRECISELY THE SAME GROUND THAT
PENNSYLVANIA ASSERTED HERE, THUS BRINGING MASSACHUSETTS INTO CONFLICT
WITH NEW YORK'S CLAIMS TOO. 

FN6  IN TEXAS V. FLORIDA, 306 U.S. 398, 405, WE HELD THAT INDIVIDUAL
CLAIMANTS "WHOSE PRESENCE IS NECESSARY OR PROPER FOR THE DETERMINATION
OF THE CASE OR CONTROVERSY BETWEEN THE STATES ARE PROPERLY MADE PARTIES
...  ." 

MEMORANDUM OF MR. JUSTICE STEWART. 

THE APPELLANT IS A NEW YORK CORPORATION WITH ITS PRINCIPAL OFFICE IN
THAT STATE.  THE FUNDS REPRESENTING THESE UNPAID MONEY ORDERS ARE
LOCATED THERE.  I THINK ONLY NEW YORK HAS POWER TO ESCHEAT THE PROPERTY
INVOLVED IN THIS CASE.  FOR THAT REASON, WHILE DISAGREEING WITH THE
COURT'S OPINION, WHICH FOR ME CREATES MORE PROBLEMS THAN IT SOLVES, I
JOIN IN THE JUDGMENT OF REVERSAL. 
..END :






















INTERSTATE COMMERCE COMMISSION V. J-T TRANSPORT CO. 368 U.S. 81 U.S.A.C.
TRANSPORT V. J-T TRANSPORT CO. 368 U.S. 81 ATCHISON, TOPEKA & SANTA FE
RAILWAY CO., V. REDDISH 368 U.S. 81 INTERSTATE COMMERCE COMMISSION V.
REDDISH 368 U.S. 81 ARKANSAS-BEST FREIGHT SYSTEM V. REDDISH 368 U.S.
81 


NO. 17.  ARGUED OCTOBER 17-18, 1961 - DECIDED DECEMBER 4, 1961* - 185 F.
SUPP. 838; 188 F. SUPP. 160, AFFIRMED. 

*TOGETHER WITH NO. 18, U.S.A.C. TRANSPORT, INC., ET AL. V. J-T
TRANSPORT CO., INC., ET AL., ON APPEAL FROM THE SAME COURT, ARGUED
OCTOBER 17-18, 1961; NO. 49, ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET
AL. V. REDDISH ET AL., NO. 53, INTERSTATE COMMERCE COMMISSION V.
REDDISH ET AL., AND NO. 54, ARKANSAS-BEST FREIGHT SYSTEM, INC., ET AL.
V. REDDISH ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF ARKANSAS, ARGUED OCTOBER 18, 1961. 


UNDER SEC. 209(B) OF THE INTERSTATE COMMERCE ACT, AS AMENDED IN 1957,
THE COMMISSION DENIED APPLICATIONS FOR OPERATING PERMITS FILED BY
CONTRACT MOTOR CARRIERS, SUPPORTED BY SHIPPERS AND OPPOSED BY COMMON
CARRIERS.  IN ONE CASE THE SHIPPER CLAIMED THAT A CONTRACT CARRIER'S
OPERATIONS COULD BE BETTER INTEGRATED WITH ITS PRODUCTION OF PARTS FOR
AIRPLANES.  IN THE OTHER CASE THE SHIPPERS CLAIMED THAT THE SERVICES OF
COMMON CARRIERS WERE UNSATISFACTORY AND THAT THEIR RATES WERE
PROHIBITIVE ON LESS-THAN-TRUCKLOAD SHIPMENTS OF CANNED GOODS.  THREE
JUDGE DISTRICT COURTS HELD THAT THE COMMISSION HAD INCORRECTLY APPLIED
THE ACT, AS AMENDED, SET ASIDE THE COMMISSION'S ORDERS AND REMANDED THE
CASES FOR FURTHER CONSIDERATION.  HELD:  THE JUDGMENTS ARE AFFIRMED. 
PP. 83-93. 

(A)  UNDER SEC. 209(B), AS AMENDED, THE ADEQUACY OF EXISTING SERVICES
IS A CRITERION TO BE CONSIDERED BY THE COMMISSION IN PASSING UPON SUCH
AN APPLICATION; BUT IT IS NOT DETERMINATIVE.  UNDER SEC. 203(A)(15), AS
AMENDED, THE "DISTINCT NEED" OF SHIPPERS FOR THE NEW CONTRACT SERVICE
MUST BE WEIGHED AGAINST THE ADEQUACY OF EXISTING SERVICES.  P. 88. 

(B)  BY INDULGING IN A PRESUMPTION THAT THE SERVICES WHICH EXISTING
COMMON CARRIERS RENDER THE PUBLIC WOULD BE ADVERSELY AFFECTED BY A LOSS
OF "POTENTIAL" TRAFFIC, EVEN IF THEY HAD NOT HANDLED IT BEFORE, AND BY
ASSIGNING TO THE APPLICANTS THE BURDEN OF PROVING THE INADEQUACY OF
EXISTING SERVICES, THE COMMISSION FAVORED THE PROTESTANTS' INTERESTS AT
THE EXPENSE OF THE SHIPPERS' IN A MANNER NOT INTENDED BY CONGRESS.  PP.
88-90. 

(C)  THE PROPER PROCEDURE IS FOR THE APPLICANT FIRST TO DEMONSTRATE
THAT THE UNDERTAKING IT PROPOSES IS SPECIALIZED AND TAILORED TO A
SHIPPER'S "DISTINCT NEED."  THE PROTESTANTS THEN MAY PRESENT EVIDENCE
TO SHOW THAT THEY HAVE THE ABILITY AND THE WILLINGNESS TO MEET THAT
SPECIALIZED NEED.  IF THAT IS DONE, THE BURDEN THEN SHIFTS TO THE
APPLICANT TO DEMONSTRATE THAT IT IS BETTER EQUIPPED TO MEET THE
DISTINCT NEEDS OF THE SHIPPER THAN THE PROTESTANTS.  P. 90. 

(D)  UNDER THE ACT, AS AMENDED IN 1957, THE STANDARD IS NOT WHETHER
EXISTING SERVICES ARE "REASONABLY ADEQUATE."  IT IS WHETHER A SHIPPER
HAS A "DISTINCT NEED" FOR A DIFFERENT OR A MORE SELECT OR A MORE
SPECIALIZED SERVICE WHICH THE PROTESTING CARRIERS CANNOT FILL.  PP. 90
91. 

(E)  THE COMMISSION ERRED IN RULING THAT THE DESIRE FOR LOWER RATES
OFFERED BY THE APPLICANT WAS NOT RELEVANT TO THE SHIPPERS' NEEDS, SINCE
THE MATTER OF RATES IS ONE FACTOR TO BE WEIGHED IN DETERMINING WHETHER
THE SHIPPER HAS ESTABLISHED A "NEED" FOR MORE "ECONOMICAL" SERVICE,
WITHIN THE MEANING OF THE NATIONAL TRANSPORTATION POLICY.  PP. 91-92. 

(F)  UNDER THE STATUTE, AS AMENDED, A SHIPPER IS ENTITLED TO HAVE HIS
"DISTINCT NEEDS" MET.  THE ADEQUACY OF EXISTING SERVICES FOR NORMAL
NEEDS AND THE WILLINGNESS AND ABILITY OF AN EXISTING CARRIER TO RENDER
THE SERVICE ARE NOT CONCLUSIVE, SINCE THE "DISTINCT NEED" OF THE
SHIPPER MAY NOT BE SERVED BY THE EXISTING SERVICES, IF THE NEW SERVICE
IS BETTER TAILORED TO FIT THE SPECIAL REQUIREMENTS OF THE SHIPPER'S
BUSINESS, THE LENGTH OF ITS PURSE, OR THE SELECT NATURE OF THE DELIVERY
SERVICE THAT IS DESIRED.  PP. 92-93. 

INTERSTATE COMMERCE COMMISSION V. J-T TRANSPORT CO., INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE ARE APPEALS FROM JUDGMENTS OF THREE-JUDGE DISTRICT COURTS, 28
U.S.C. SEC. 1253, WHICH SET ASIDE ORDERS OF THE INTERSTATE COMMERCE
COMMISSION DENYING APPLICATIONS FOR PERMITS AS CONTRACT CARRIERS.  185
F. SUPP. 838; 188 F. SUPP. 160. 

APPELLEE J-T TRANSPORT COMPANY ASKED TO EXTEND ITS PRESENT OPERATIONS
AS AN IRREGULAR-ROUTE CONTRACT CARRIER OF AIRPLANE PARTS TO INCLUDE
CARRIAGE OF AIRCRAFT LANDING GEAR BULKHEADS FOR BOEING AIRPLANE CO.
BOEING SUPPORTED THE APPLICATION.  COMMON CARRIERS OPPOSED THE
APPLICATION, AS DID ANOTHER CARRIER, U.S.A.C. TRANSPORT, INC.,
APPELLANT IN NO. 18.  BOEING INDICATED IT PREFERRED THE APPLICANT OVER
THE OTHER BECAUSE OF ITS UNSATISFACTORY EXPERIENCE WITH THE LATTER IN
OTHER OPERATIONS.  BOEING INDICATED THAT CONTRACT CARRIAGE WAS MORE
PRACTICABLE IN ITS EXPERIENCE THAN COMMON CARRIAGE, AS A CONTRACT
CARRIER'S OPERATIONS COULD BE BETTER INTEGRATED WITH A MANUFACTURER'S
PRODUCTION.  THOUGH THE EXAMINER RECOMMENDED A GRANT OF THE PERMIT, THE
COMMISSION DENIED IT (74 M.C.C. 324, 79 M.C.C. 695) SAYING THAT NO
ATTEMPT HAD BEEN MADE TO ASCERTAIN IF THE EXISTING SERVICES WERE
CAPABLE OF MEETING THE NEEDS OF THE SHIPPER.  IT RULED THAT "THERE IS,
IN EFFECT, A PRESUMPTION THAT THE SERVICES OF EXISTING CARRIERS WILL BE
ADVERSELY AFFECTED BY A LOSS OF 'POTENTIAL' TRAFFIC, EVEN IF THEY MAY
NOT HAVE HANDLED IT BEFORE."  79 M.C.C. 695, 705.  IT HELD THAT THE
APPLICANT HAD NOT ESTABLISHED A NEED FOR THIS CONTRACT SERVICE AND THAT
THE APPLICANT HAD NOT SHOWN "THE EXISTING SERVICE" OF THE OTHER CARRIER
TO BE "INADEQUATE."  ID., 709.  IT INDICATED THAT A SERVICE "NOT
NEEDED" CANNOT BE FOUND CONSISTENT WITH THE PUBLIC INTEREST OR THE
NATIONAL TRANSPORTATION POLICY, AS THOSE TERMS ARE USED IN SEC. 209(B)
OF THE INTERSTATE COMMERCE ACT AS AMENDED, 71 STAT.  411, 49 U.S.C.
SEC. 309(B).  IT SAID THAT THE SHIPPERS DID NOT REQUIRE A DISTINCT TYPE
OF SERVICE THAT COULD NOT BE PROVIDED BY THE PROTESTING CARRIER, WHICH
WAS INDEED IN A POSITION TO PROVIDE ANY SERVICE NEEDED AND WHICH WOULD
BE ADVERSELY AFFECTED BY A GRANT OF THIS APPLICATION, EVEN THOUGH IT
NEVER HAD HAD THE BUSINESS IN QUESTION. 

APPELLEE REDDISH MADE APPLICATION TO CARRY CANNED GOODS AS A CONTRACT
CARRIER FROM THREE POINTS IN ARKANSAS AND ONE IN OKLAHOMA TO VARIOUS
POINTS IN THIRTY-THREE STATES AND TO CARRY OTHER GOODS ON RETURN.  HIS
APPLICATION WAS SUPPORTED BY HIS PROSPECTIVE SHIPPERS AND OPPOSED BY
MOTOR COMMON CARRIERS, APPELLANTS IN NO. 54, AND BY RAIL COMMON
CARRIERS, APPELLANTS IN NO. 49. 

REDDISH SHOWED THAT HE DELIVERED TO CUSTOMERS WHO ORDERED GOODS IN
LESS-THAN-TRUCKLOAD AMOUNTS.  THESE CUSTOMERS MAINTAINED LOW
INVENTORIES AND NEEDED EXPEDITED DELIVERIES IN SMALL QUANTITIES AND ON
SHORT NOTICE.  SOME ACCEPTED DELIVERIES ONLY ON CERTAIN DAYS, A
REQUIREMENT CALLING FOR INTEGRATION AND COORDINATION BETWEEN SHIPPER
AND CUSTOMER.  THE SHIPPERS SAID THAT COMMON CARRIAGE WAS AN INADEQUATE
SERVICE FOR THESE SHIPMENTS, AS THEY WERE IN SUCH SMALL LOTS THAT THEY
OFTEN HAD TO BE CARRIED IN CONSOLIDATED LOADS WHICH CAUSED DELAYS IN
SHIPMENTS.  MOREOVER, IT WAS SHOWN THAT NOT ALL POINTS WOULD BE SERVED
BY ONE COMMON CARRIER, MAKING IT NECESSARY TO UNLOAD THE SHIPMENTS AND
RELOAD THEM ON ANOTHER CARRIER CAUSING DELAYS, MISCONSIGNMENT, AND
DAMAGE TO GOODS.  THE SHIPPERS ALSO TESTIFIED THAT THE COST OF COMMON
CARRIAGE WAS PROHIBITIVE FOR LESS-THAN-TRUCKLOAD SHIPMENTS AND THAT IF
THE REDDISH APPLICATION WERE DENIED THEY WOULD USE PRIVATE CARRIAGE. 
THE PROTESTING MOTOR COMMON CARRIERS TESTIFIED THEY COULD RENDER
ADEQUATE SERVICE FOR THESE SHIPMENTS AND PROVIDE MULTIPLE PICK-UP AND
DELIVERY SERVICES TO MOST OF THE POINTS BY TRANSFERRING THE SHIPMENTS
TO OTHER CARRIERS.  THE EXAMINER RECOMMENDED THAT THE APPLICATION BE
GRANTED.  THE COMMISSION DENIED IT, SAYING, INTER ALIA, THAT THE
SERVICES NEEDED BY THE SHIPPERS COULD BE PERFORMED BY EXISTING COMMON
CARRIERS, THAT THEY WOULD BE INJURED BY THE LOSS OF POTENTIAL TRAFFIC,
AND THAT THE SHIPPERS' DESIRE TO OBTAIN LOWER RATES FOR LESS-THAN
TRUCKLOAD SHIPMENTS WAS THE PRIMARY REASON FOR THEIR SUPPORT OF THE
APPLICATION, BUT WAS NOT A SUFFICIENT BASIS TO JUSTIFY A GRANT OF
AUTHORITY TO THIS CONTRACT CARRIER.  81 M.C.C. 35. 

THE CASES TURN ON THE MEANING OF LANGUAGE ADDED TO THE ACT IN 1957. 

OUR DECISION IN UNITED STATES V. CONTRACT STEEL CARRIERS, 350 U.S.
409, HELD THAT A CONTRACT CARRIER, RENDERING A SPECIALIZED SERVICE IN
THE SENSE THAT IT HAULED ONLY A LIMITED GROUP OF COMMODITIES OVER
IRREGULAR ROUTES, DID NOT BECOME A COMMON CARRIER BECAUSE IT REACHED
FOR NEW BUSINESS WITHIN THE LIMITS OF ITS LICENSE.  THAT DECISION
CAUSED CONCERN TO THE COMMISSION WHICH PROPOSED AMENDMENTS TO THE ACT. 
(FN1)  IT PROPOSED THAT SEC. 203(A)(15) BE AMENDED SO AS TO DEFINE A
CONTRACT CARRIER AS ONE WHO ENGAGES IN TRANSPORTATION BY MOTOR VEHICLE
"UNDER CONTINUING CONTRACTS WITH ONE PERSON OR A LIMITED NUMBER OF
PERSONS FOR THE FURNISHING OF TRANSPORTATION SERVICES OF A SPECIAL AND
INDIVIDUAL NATURE REQUIRED BY THE CUSTOMER AND NOT PROVIDED BY COMMON
CARRIERS."  IT ALSO PROPOSED THAT SEC. 209(B) BE AMENDED BY ADDING AN
ADDITIONAL REQUIREMENT FOR ISSUANCE OF A CONTRACT CARRIER PERMIT, VIZ.,
"THAT EXISTING COMMON CARRIERS ARE UNWILLING OR UNABLE TO PROVIDE THE
TYPE OF SERVICE FOR WHICH A NEED HAS BEEN SHOWN." 

THESE AMENDMENTS WERE VIGOROUSLY OPPOSED IN SOME QUARTERS.  (FN2)
THE ADDITION TO SEC. 203(A)(15) WAS OBJECTED TO ON THE GROUND THAT MANY
CONTRACT CARRIERS WOULD BE DRIVEN OUT OF BUSINESS BECAUSE THEY COULD
NOT MEET THE TEST OF PERFORMING A SERVICE "NOT PROVIDED BY COMMON
CARRIERS."  THE CHANGE IN SEC. 209(B) WAS OPPOSED BECAUSE IT WOULD BE
IMPOSSIBLE FOR A CONTRACT CARRIER TO PROVE THAT COMPETING COMMON
CARRIERS WERE "UNWILLING" TO RENDER THE SERVICE AND VERY DIFFICULT FOR
IT TO PROVE THAT COMMON CARRIERS WERE "UNABLE" TO RENDER THE SERVICE,
AS THE APPLICANT WOULD HAVE NO INTIMATE KNOWLEDGE OF THE BUSINESS OF
THE OPPOSING CARRIERS. 

THE COMMISSION BOWED TO THESE OBJECTIONS; (FN3) AND THE BILL AS IT
PASSED ELIMINATED THE PROPOSED CHANGES EXCEPT THE ONES THAT CHANGED THE
RESULT OF OUR DECISION IN UNITED STATES V. CONTRACT STEEL CARRIERS,
SUPRA.  (FN4)  SECTION 203(A)(15), HOWEVER, WAS AMENDED, SO FAR AS
MATERIAL HERE, BY ADDING TO THE DESCRIPTION OF THE TERM "CONTRACT
CARRIER BY MOTOR VEHICLE" ONE WHO FURNISHES "TRANSPORTATION SERVICES
DESIGNED TO MEET THE DISTINCT NEED OF EACH INDIVIDUAL CUSTOMER."  (FN5)
AND SEC. 209(B) WAS AMENDED BY ADDING A SENTENCE WHICH SETS FORTH FIVE
FACTORS THE COMMISSION SHALL CONSIDER IN DETERMINING WHETHER THE PERMIT
SHOULD ISSUE: 

"IN DETERMINING WHETHER ISSUANCE OF A PERMIT WILL BE CONSISTENT WITH
THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION POLICY DECLARED IN
THIS ACT, THE COMMISSION SHALL CONSIDER (1) THE NUMBER OF SHIPPERS TO
BE SERVED BY THE APPLICANT, (2) THE NATURE OF THE SERVICE PROPOSED, (3)
THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE SERVICES OF
THE PROTESTING CARRIERS AND (4) THE EFFECT WHICH DENYING THE PERMIT
WOULD HAVE UPON THE APPLICANT AND/OR ITS SHIPPER AND (5) THE CHANGING
CHARACTER OF THAT SHIPPER'S REQUIREMENTS."  (NUMERALS ADDED.) 

IT SEEMS CLEAR FROM THESE PROVISIONS THAT THE ADEQUACY OF EXISTING
SERVICES IS A CRITERION TO BE CONSIDERED BY THE COMMISSION, AS IT IS
INSTRUCTED TO CONSIDER "THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE
UPON THE SERVICES OF THE PROTESTING CARRIERS," AS WELL AS THE EFFECT OF
A DENIAL UPON THE SHIPPERS.  OR TO PUT THE MATTER OTHERWISE, THE
QUESTION OF THE NEED OF THE SHIPPING PUBLIC FOR THE PROPOSED SERVICE
NECESSARILY INCLUDES THE QUESTION WHETHER THE EXTENT, NATURE,
CHARACTER, AND SUITABILITY OF EXISTING, AVAILABLE SERVICE MAKES THE
PROPOSED SERVICE OUT OF LINE WITH THE REQUIREMENTS OF THE NATIONAL
TRANSPORTATION POLICY.  BUT THE ADEQUACY OF EXISTING FACILITIES OR THE
WILLINGNESS OR ABILITY OF EXISTING CARRIERS TO RENDER THE NEW SERVICE
IS NOT DETERMINATIVE.  THE "EFFECT WHICH DENYING THE PERMIT WOULD HAVE
UPON THE APPLICANT AND/OR ITS SHIPPER AND THE CHANGING CHARACTER OF
THAT SHIPPER'S REQUIREMENTS" HAVE ADDITIONAL RELEVANCE.  THIS IS A
PHASE OF THE PROBLEM REFLECTED IN THE BROADENED DEFINITION OF A
"CONTRACT CARRIER BY MOTOR VEHICLE" - ONE WHO FURNISHES TRANSPORTATION
SERVICES "DESIGNED TO MEET THE DISTINCT NEED OF EACH INDIVIDUAL
CUSTOMER."  SEC. 203(A)(15).  IT MEANS, WE THINK, THAT THE "DISTINCT
NEED" OF SHIPPERS FOR THE NEW CONTRACT CARRIER SERVICE MUST BE WEIGHED
AGAINST THE ADEQUACY OF EXISTING SERVICES.  THE COMMISSION INDULGED IN
"A PRESUMPTION THAT THE SERVICES OF EXISTING CARRIERS WILL BE ADVERSELY
AFFECTED BY A LOSS OF 'POTENTIAL' TRAFFIC, EVEN IF THEY MAY NOT HAVE
HANDLED IT BEFORE."  79 M.C.C. 695, 705.  THE EFFECT OF THE PRESUMPTION
IS IN SUBSTANCE TO LIMIT COMPETING CONTRACT CARRIAGE TO SERVICES "NOT
PROVIDED" BY EXISTING CARRIERS - A PROVISION THAT THE COMMISSION SOUGHT
UNSUCCESSFULLY TO HAVE INCORPORATED INTO THE ACT.  WE SEE NO ROOM FOR A
PRESUMPTION IN FAVOR OF, OR AGAINST, ANY OF THE FIVE FACTORS ON WHICH
FINDINGS MUST BE MADE UNDER SEC. 209(B).  THE EFFECT ON PROTESTING
CARRIERS OF A GRANT OF THE APPLICATION AND THE EFFECT ON SHIPPERS OF A
DENIAL ARE FACTORS TO BE WEIGHED IN DETERMINING ON BALANCE WHERE THE
PUBLIC INTEREST LIES.  THE AIM OF THE 1957 AMENDMENTS, AS WE READ THE
LEGISLATIVE HISTORY, WAS NOT TO PROTECT THE STATUS QUO OF EXISTING
CARRIERS BUT TO ESTABLISH A REGIME UNDER WHICH NEW CONTRACT CARRIAGE
COULD BE ALLOWED IF THE "DISTINCT NEED" OF SHIPPERS INDICATED THAT IT
WAS DESIRABLE. 

WE CANNOT ASSUME THAT CONGRESS, IN AMENDING THE STATUTE, INTENDED TO
ADOPT THE ADMINISTRATIVE CONSTRUCTION WHICH PREVAILED PRIOR TO THE
AMENDMENT. 

BY ADDING THE FIVE CRITERIA WHICH IT DIRECTED THE COMMISSION TO
CONSIDER, CONGRESS EXPRESSED ITS WILL THAT THE COMMISSION SHOULD NOT
MANIFEST SPECIAL SOLICITUDE FOR THAT CRITERION WHICH DIRECTS ATTENTION
TO THE SITUATION OF PROTESTING CARRIERS, AT THE EXPENSE OF THAT WHICH
DIRECTS ATTENTION TO THE SITUATION OF SUPPORTING SHIPPERS, WHEN THOSE
CRITERIA HAVE CONTRARY IMPLICATIONS.  SUCH A SITUATION DOUBTLESS EXISTS
IN THESE CASES, FOR GRANTING THE PERMITS MIGHT WELL HAVE PRODUCED SOME
CONSEQUENCES ADVERSE TO THE PROTESTING CARRIERS, WHILE DENYING THEM MAY
JUST AS CERTAINLY PROVE BURDENSOME TO THE SUPPORTING SHIPPERS.  HAD THE
COMMISSION, HAVING DRAWN OUT AND CRYSTALLIZED THESE COMPETING
INTERESTS, ATTEMPTED TO JUDGE THEM WITH AS MUCH DELICACY AS THE
PROSPECTIVE NATURE OF THE INQUIRY PERMITS, WE SHOULD HAVE BEEN CAUTIOUS
ABOUT DISTURBING ITS CONCLUSION. 

BUT WHILE SUCH A DETERMINATION IS PRIMARILY A RESPONSIBILITY OF THE
COMMISSION, WE ARE UNDER NO COMPULSION TO ACCEPT ITS READING WHERE, AS
HERE, WE ARE CONVINCED THAT IT HAS LOADED ONE OF THE SCALES.  BY
INDULGING IN A PRESUMPTION "THAT THE SERVICES OF EXISTING CARRIERS WILL
BE ADVERSELY AFFECTED BY A LOSS OF 'POTENTIAL' TRAFFIC, EVEN IF THEY
MAY NOT HAVE HANDLED IT BEFORE," AND BY ASSIGNING TO THE APPLICANTS THE
BURDEN OF PROVING THE INADEQUACY OF EXISTING SERVICES, THE COMMISSION
FAVORED THE PROTESTANTS' INTERESTS AT THE EXPENSE OF THE SHIPPERS' IN A
MANNER NOT COUNTENANCED BY ANYTHING DISCOVERABLE IN CONGRESS'
DELEGATION TO IT OF RESPONSIBILITY. 

IT IS ARGUED THAT THE COMMISSION, IN HOLDING THAT U.S.A.C. IS WILLING
AND ABLE TO RENDER THE SERVICE, DID NOT RELY ON THE PRESUMPTION.  WE
ARE, HOWEVER, NOT CONVINCED.  THE COMMISSION SEEMS TO HAVE PLACED THE
BURDEN OF PROVING INADEQUACY OF EXISTING SERVICES ON THE APPLICANT, FOR
IT SAID THAT THE APPLICANT HAD NOT SHOWN THAT THE SERVICE OF U.S.A.C.
WAS "INADEQUATE."  79 M.C.C. 695, 709.  SUCH A BURDEN IS IMPROPERLY
PLACED ON THE APPLICANT, AS THE REJECTION OF THE PROPOSED AMENDMENT TO
SEC. 209(B) SUGGESTS.  THE CAPABILITIES OF PROTESTING CARRIERS ARE
MATTERS PECULIARLY WITHIN THEIR KNOWLEDGE.  IN THE REDDISH CASE THE
COMMISSION MADE THE SAME ERROR, AS IS EVIDENT FROM ITS STATEMENT THAT
THE "SHIPPERS HAVE FAILED TO SHOW THAT THEY HAVE BEEN UNABLE TO OBTAIN
REASONABLY ADEQUATE SERVICE UPON REQUEST."  81 M.C.C. 35, 42. 

THE PROPER PROCEDURE, WE CONCLUDE, IS FOR THE APPLICANT FIRST TO
DEMONSTRATE THAT THE UNDERTAKING IT PROPOSES IS SPECIALIZED AND
TAILORED TO A SHIPPER'S DISTINCT NEED.  THE PROTESTANTS THEN MAY
PRESENT EVIDENCE TO SHOW THEY HAVE THE ABILITY AS WELL AS THE
WILLINGNESS TO MEET THAT SPECIALIZED NEED.  IF THAT IS DONE, THEN THE
BURDEN SHIFTS TO THE APPLICANT TO DEMONSTRATE THAT IT IS BETTER
EQUIPPED TO MEET THE DISTINCT NEEDS OF THE SHIPPER THAN THE
PROTESTANTS. 

MOREOVER, AS WE READ THE ACT, AS AMENDED IN 1957, THE STANDARD IS NOT
WHETHER EXISTING SERVICES ARE "REASONABLY ADEQUATE."  IT IS WHETHER A
SHIPPER HAS A "DISTINCT NEED" FOR A DIFFERENT OR A MORE SELECT OR A
MORE SPECIALIZED SERVICE.  THE PROTESTING CARRIERS MUST SHOW THEY CAN
FILL THAT "DISTINCT NEED," NOT THAT THEY CAN PROVIDE A "REASONABLY
ADEQUATE SERVICE."    IN THE REDDISH CASE THE COMMISSION RULED THAT THE
DESIRE FOR LOWER RATES OFFERED BY THE APPLICANT WAS IRRELEVANT TO A
SHIPPER'S NEEDS, THAT IF THE RATES OF EXISTING CARRIERS WERE TOO HIGH,
SHIPPERS SHOULD SEEK RELIEF FOR THEIR REDUCTION.  81 M.C.C. 35, 42-43. 
WE THINK THE MATTER OF RATES IS ONE FACTOR TO BE WEIGHED IN DETERMINING
THE NEED FOR THE NEW SERVICE.  IN A CONTEST BETWEEN CARRIERS BY MOTOR
VEHICLES AND CARRIERS BY RAIL, WE HELD IN SCHAFFER TRANSPORTATION CO.
V. UNITED STATES, 355 U.S. 83, THAT THE ABILITY OF A PARTICULAR MODE OF
TRANSPORTATION TO OPERATE WITH A LOWER RATE IS ONE OF THE "INHERENT
ADVANTAGES" THAT ONE TYPE MAY HAVE OVER ANOTHER WITHIN THE MEANING OF
THE ACT.  54 STAT. 899.  BY ANALOGY, CONTRACT CARRIAGE MAY BE MORE
"ECONOMICAL" THAN COMMON CARRIAGE BY MOTOR OR RAIL WITHIN THE FRAMEWORK
OF THE NATIONAL TRANSPORTATION POLICY, AS IT IS DEFINED IN THE ACT
(FN6) - "THE COMMISSION'S GUIDE" TO THE PUBLIC INTEREST.  MCLEAN
TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 82.  IT WOULD SEEM HARDLY
CONTESTABLE THAT IF DENIAL OF THE APPLICATION MEANT, FOR EXAMPLE, THAT
A SHIPPER'S COSTS OF TRANSPORTATION WOULD BE PROHIBITIVE, THE SHIPPER
HAD ESTABLISHED A "NEED" FOR THE MORE "ECONOMICAL" SERVICE.  SEE HERMAN
R. EWELL EXTENSION - PHILADELPHIA, 72 M.C.C.  645.  THIS DOES NOT MEAN
THAT THE LAWFULNESS OF RATES WOULD BE INJECTED INTO CERTIFICATE
PROCEEDINGS.  THE ISSUE OF WHETHER OR NOT THE PROPOSED SERVICE OFFERS A
RATE ADVANTAGE AND IF SO WHETHER SUCH ADVANTAGE ESTABLISHES A "NEED"
FOR THE SERVICE THAT OVERRIDES COUNTERBALANCING CONSIDERATIONS PRESENTS
ISSUES THAT FALL FAR SHORT OF A RATE PROCEEDING. 

WE AGREE WITH THE COURT IN THE J-T TRANSPORT CO. CASE THAT, WHILE THE
1957 AMENDMENTS CHANGED THE RESULT OF OUR DECISION IN UNITED STATES V.
CONTRACT STEEL CARRIERS, SUPRA, BY GIVING THE COMMISSION POWER TO LIMIT
THE NUMBER OF CONTRACTS WHICH A CONTRACT CARRIER CAN MAINTAIN, THE
AMENDMENTS IN OTHER RESPECTS PUT THE CONTRACT CARRIER ON A FIRMER
FOOTING.  THAT COURT SAID, "UNDER THE STATUTE A SHIPPER IS ENTITLED TO
HAVE HIS DISTINCT NEEDS MET."  185 F. SUPP. 838, 849.  WE AGREE.  WE
ALSO AGREE THAT THOUGH COMMON CARRIER SERVICE IS REASONABLY ADEQUATE
AND THOUGH ANOTHER CARRIER IS WILLING AND ABLE TO FURNISH THE SERVICE,
A PERMIT TO A CONTRACT CARRIER TO FURNISH THIS PARTICULAR SERVICE STILL
MIGHT BE WHOLLY CONSISTENT WITH THE NATIONAL TRANSPORTATION POLICY
DEFINED IN THE ACT.   FOR IT IS "THE DISTINCT NEED OF EACH INDIVIDUAL
CUSTOMER" THAT THE CONTRACT CARRIER IS DESIGNED TO FILL.  SEC.
203(A)(15).  AND "THE CHANGING CHARACTER" OF THE SHIPPER'S
"REQUIREMENTS" IS A FACTOR TO BE WEIGHED BEFORE DENYING THE
APPLICATION.  SEC. 209(B).  HENCE THE ADEQUACY OF EXISTING SERVICES FOR
NORMAL NEEDS AND THE WILLINGNESS AND ABILITY OF AN EXISTING CARRIER TO
RENDER THE SERVICE ARE NOT THE END OF THE MATTER.  THE "DISTINCT NEED"
OF THE SHIPPER MAY NONETHELESS NOT BE SERVED BY EXISTING SERVICES, IF
THE NEW SERVICE IS BETTER TAILORED TO FIT THE SPECIAL REQUIREMENTS OF A
SHIPPER'S BUSINESS, THE LENGTH OF ITS PURSE, OR THE SELECT NATURE OF
THE DELIVERY SERVICE THAT IS DESIRED.  THE FACT THAT THE PROTESTING
CARRIERS DO NOT PRESENTLY PERFORM THE SERVICE BEING TENDERED AND THAT
THE GRANT OF THE APPLICATION WOULD NOT DIVERT BUSINESS FROM THEM DOES
NOT NECESSARILY MEAN THAT THE GRANT WOULD HAVE NO EFFECT "UPON THE
SERVICES" OF THE PROTESTING CARRIERS WITHIN THE MEANING OF SEC.
209(B).  BUT WHERE THE PROTESTING CARRIERS DO NOT PRESENTLY HAVE THE
BUSINESS, IT WOULD SEEM THAT THE GRANT OF IT TO A NEWCOMER WOULD HAVE
AN ADVERSE EFFECT ON THEM ONLY IN THE UNUSUAL CASE. 

WE INTIMATE NO OPINION ON THE MERITS, FOR IT IS THE COMMISSION, NOT
THE COURTS, THAT BRINGS AN EXPERTISE TO BEAR ON THE PROBLEM, THAT MAKES
THE FINDINGS, AND THAT GRANTS OR DENIES THE APPLICATIONS.  YET THAT
EXPERTISE IS NOT SUFFICIENT BY ITSELF.  FINDINGS SUPPORTED BY
SUBSTANTIAL EVIDENCE ARE REQUIRED.  PUBLIC SERVICE COMM'N V. UNITED
STATES, 356 U.S. 421, 427; UNITED STATES V. UNITED STATES SMELTING CO.,
339 U.S. 186, 193. 

SINCE THE STANDARDS AND CRITERIA EMPLOYED BY THE COMMISSION WERE NOT
THE PROPER ONES, THE CAUSES MUST BE REMANDED FOR FURTHER CONSIDERATION
AND FOR NEW FINDINGS.  AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 364
U.S. 1, 15-17.  ACCORDINGLY THE JUDGMENTS BELOW ARE AFFIRMED. 

FN1  HEARINGS, S. 1384, SUBCOMMITTEE OF COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 85TH CONG., 1ST SESS., P. 6. 

FN2  THE PROPOSED AMENDMENTS WERE OBJECTED TO BY THE DEPARTMENT OF
JUSTICE AS BEING "UNDULY RESTRICTIVE" (S. HEARINGS, SUBCOMMITTEE OF
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 85TH CONG., 1ST SESS., P.
11) AND IN PART BY THE DEPARTMENT OF COMMERCE.  ID., 200-203.  THEY
WERE ALSO OPPOSED BY THE CONTRACT CARRIER CONFERENCE THAT STATED, INTER
ALIA, "SINCE THE STATE OF MIND OF THE COMMON CARRIERS CONCERNING THEIR
WILLINGNESS IS A MATTER PECULIARLY WITHIN THEIR OWN KNOWLEDGE, IT WOULD
BE ABSOLUTELY IMPOSSIBLE FOR A CONTRACT CARRIER TO EVER PROVE TO THE
CONTRARY.  FURTHERMORE, IT WOULD BE VERY DIFFICULT FOR A CONTRACT
CARRIER OR ITS SUPPORTING SHIPPER, HAVING NO INTIMATE KNOWLEDGE OF THE
BUSINESS OF OPPOSING COMMON CARRIERS, TO PROVE THAT SUCH CARRIERS WERE
UNABLE TO PERFORM A GIVEN SERVICE."  ID., P. 303. 

FN3  THE CHANGE IN THE COMMISSION'S ATTITUDE IS SUMMARIZED AS FOLLOWS
IN S. REP. NO. 703, 85TH CONG., 1ST SESS., P. 4:  "  ...  THE
COMMISSION, UPON REFLECTION, ON THE OBJECTIONS OF CONTRACT AND PRIVATE
CARRIERS TO THE BILL, CONCLUDED THAT IN SOME RESPECTS S. 1384 WOULD
PROVIDE TOO RIGID A PATTERN.  IT DECIDED THAT THE PROPOSED REQUIREMENT
IN SECTION 209(B) THAT ADDITIONAL PERMITS COULD BE ISSUED ONLY UPON A
SHOWING THAT EXISTING COMMON CARRIERS ARE UNWILLING OR UNABLE TO RENDER
THE REQUIRED TYPES OF SERVICE SHOULD BE WITHDRAWN." 

FN4  THAT THIS CHANGE WAS MADE IS CLEAR.  SEE S. REP. NO. 703, 85TH
CONG., 1ST SESS., PP. 2-3, 6, 7; H. REP. NO. 970, 85TH CONG., 1ST
SESS., P. 3. 

FN5  SEC. 203(A)(15) AS AMENDED READS AS FOLLOWS: 

"THE TERM 'CONTRACT CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON WHICH
ENGAGES IN TRANSPORTATION BY MOTOR VEHICLE OF PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE, FOR COMPENSATION (OTHER THAN
TRANSPORTATION REFERRED TO IN PARAGRAPH (14) AND THE EXCEPTION
THEREIN), UNDER CONTINUING CONTRACTS WITH ONE PERSON OR A LIMITED
NUMBER OF PERSONS EITHER (A) FOR THE FURNISHING OF TRANSPORTATION
SERVICES THROUGH THE ASSIGNMENT OF MOTOR VEHICLES FOR A CONTINUING
PERIOD OF TIME TO THE EXCLUSIVE USE OF EACH PERSON SERVED OR (B) FOR
THE FURNISHING OF TRANSPORTATION SERVICES DESIGNED TO MEET THE DISTINCT
NEED OF EACH INDIVIDUAL CUSTOMER." 

FN6  CONGRESS IN 1940 DESCRIBED THE NATIONAL TRANSPORTATION POLICY: 

"IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF
THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES
OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY."  54 STAT. 899. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING.* 

*(THIS OPINION APPLIES TO NO. 17, INTERSTATE COMMERCE COMMISSION V. J
T TRANSPORT CO., INC., AND NO. 18, U.S.A.C. TRANSPORT, INC., V. J-T
TRANSPORT CO., INC.) 

THESE ARE RELATED APPEALS FROM A DECREE OF A DISTRICT COURT SETTING
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DENYING AN
APPLICATION FOR A CONTRACT-CARRIER PERMIT UNDER THE 1957 AMENDMENTS TO
SECS. 203(A)(15) AND 209(B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C.
SECS. 303(A)(15), 309(B).  AT ISSUE ARE THE DISTRICT COURT'S
DETERMINATIONS THAT THE COMMISSION EXCEEDED ITS AUTHORITY UNDER THOSE
PROVISIONS IN FOUR PARTICULARS.  FIRST, BY CONSIDERING THE ADEQUACY OF
EXISTING CARRIAGE FOR THE TRANSPORTATION SERVICE PROPOSED, THE
COMMISSION IS SAID TO HAVE INJECTED AN INADMISSIBLE "SIXTH CRITERION"
INTO THE FIVE FACTORS DESIGNATED BY CONGRESS IN THE REVISED SEC.
209(B).  SECOND, THE COMMISSION WAS HELD TO HAVE IMPOSED ON THE
APPLICANT A BURDEN OF PROVING THE INADEQUACY OF EXISTING SERVICES THAT
CONGRESS HAD SPECIFICALLY REFUSED TO APPROVE.  THIRD, THE COURT
CONCLUDED THAT THE COMMISSION'S RELIANCE ON THE CAPACITY OF EXISTING
CARRIERS TO MEET THE "REASONABLE TRANSPORTATION NEEDS" OF THE SHIPPER
DID NOT MEET THE STANDARD OF SPECIFIC NEEDS IN AMENDED SEC.
203(A)(15).  FOURTH, THE COMMISSION IS CHARGED WITH INVOKING AN
IMPERMISSIBLE PRESUMPTION THAT AN EXISTING CARRIER WILLING AND ABLE TO
PERFORM A TRANSPORTATION SERVICE IT HAS NOT PREVIOUSLY UNDERTAKEN WILL
BE ADVERSELY AFFECTED BY THE LOSS OF POTENTIAL TRAFFIC. 

DISPOSITION OF THESE CONCLUSIONS TURNS FIRST ON A CONSTRUCTION OF THE
1957 AMENDMENTS IN THE CONTEXT OF THE MOTOR CARRIER ACT OF 1935, APART
FROM WHICH THEY ARE UNINTELLIGIBLE; NEXT UPON DUE CONSIDERATION OF WHAT
THE COMMISSION HAS HERE UNDERTAKEN TO DO, AS DISCLOSED IN A FAIR
READING OF ITS FINAL REPORT DENYING THE APPLICATION; AND, MOST
IMPORTANTLY, ON APPROPRIATE REGARD FOR THE LIMITS ON JUDICIAL REVIEW OF
SUCH COMMISSION ACTION AS IS NOW BEFORE US.

                                        I. 

THE MOTOR CARRIER ACT, THIS COURT HAS NOTED, WAS PASSED AT A TIME
WHEN "THE INDUSTRY WAS UNSTABLE ECONOMICALLY, DOMINATED BY EASE OF
COMPETITIVE ENTRY AND A FLUID RATE PICTURE.  AND AS A RESULT, IT BECAME
OVERCROWDED WITH SMALL ECONOMIC UNITS WHICH PROVED UNABLE TO SATISFY
EVEN THE MOST MINIMAL STANDARDS OF SAFETY OR FINANCIAL RESPONSIBILITY. 
SO CONGRESS FELT COMPELLED TO REQUIRE AUTHORIZATION FOR ALL INTERSTATE
OPERATIONS TO PRESERVE THE MOTOR TRANSPORTATION SYSTEM FROM OVER
COMPETITION  ...  ."  AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 344
U.S. 298, 312-313. 

THESE WERE INDEED THE CONDITIONS THAT PROMPTED LEGISLATIVE
RECOMMENDATIONS BY THE GREATLY ESTEEMED FEDERAL COORDINATOR OF
TRANSPORTATION, JOSEPH B. EASTMAN.  SEE S. DOC. NO. 152, 73D CONG., 2D
SESS. (1934).  ONE OF THE PRIME PURPOSES OF THE MEASURE HE PROPOSED WAS
TO CONTROL THE NUMBER AND SCOPE OF CONTRACT-CARRIER OPERATIONS IN ORDER
TO PRESERVE AND PROTECT COMMON-CARRIER SERVICE: 

"THESE PRIVATE AND CONTRACT CARRIERS MIGHT BE IGNORED IF THEY DID NOT
HAVE A TENDENCY TO DEMORALIZE OR IMPAIR THE SYSTEM OF COMMON CARRIAGE
WHICH UNDERTAKES TO SERVE ALL ALIKE AND IS OF PRIME IMPORTANCE TO THE
COUNTRY  ...  . 

"THE CONTRACT CARRIER MAY DIFFER FROM THE COMMON CARRIER ONLY IN THE
FACT THAT HE UNDERTAKES TO SKIM THE CREAM OF THE TRAFFIC AND LEAVE THE
PORTION WHICH LACKS THE BUTTERFATS TO HIS COMMON-CARRIER COMPETITOR. 
OBVIOUSLY SUCH OPERATIONS CAN HAVE VERY UNFORTUNATE AND UNDESIRABLE
RESULTS. 

"  ...  SO FAR AS REGULATION IS DIRECTED AGAINST PRIVATE AND CONTRACT
OPERATORS, IT SHOULD BE FOR THE CHIEF PURPOSE OF PROTECTING THE COMMON
CARRIERS AGAINST UNFAIR AND DEMORALIZING COMPETITION."  REPORT OF THE
FEDERAL COORDINATOR OF TRANSPORTATION, 1934, H.R. DOC. NO. 89, 74TH
CONG., 1ST SESS. 17 (1935). 

COORDINATOR EASTMAN'S PROPOSAL WAS ENACTED BY CONGRESS INTO THE MOTOR
CARRIER ACT OF 1935 (NOW INTERSTATE COMMERCE ACT, PART II).  SEE H.R.
REP. NO. 1645, 74TH CONG., 1ST SESS. 5 (1935); S. REP. NO. 482, 74TH
CONG., 1ST SESS. 2 (1935).  AS ENACTED, IT LAID FAR MORE STRINGENT
CONTROLS UPON COMMON CARRIERS THAN ON CONTRACT CARRIERS.  THE FORMER
WERE REQUIRED TO HOLD THEMSELVES OUT TO THE GENERAL PUBLIC, SECS.
203(A)(14), 207, UNDER JUST AND NONDISCRIMINATORY TARIFFS, SECS.
216(D), 217, WHILE THE LATTER WERE UNCONTROLLED IN THEIR CHARGES ABOVE
A REASONABLE MINIMUM, SEC. 218.  MOTOR CARRIERS OWNING MORE THAN 20
VEHICLES, WHICH PRESUMABLY INCLUDED MOST COMMON CARRIERS AND FEW IF ANY
CONTRACT CARRIERS, HAD TO OBTAIN COMMISSION APPROVAL BEFORE GOING OUT
OF BUSINESS, INTERSTATE COMMERCE ACT, PART I, SEC. 5, AND SEE 49 CFR
SECS. 179.2-179.5 (1961).  NO LIMITATION WAS LAID ON THE TYPES OF
TRAFFIC FOR WHICH CONTRACT CARRIERS COULD COMPETE, AND INDEED THERE HAS
NEVER DEVELOPED ANY INHERENT DIFFERENCE IN THE OPERATIONS PERFORMABLE
BY COMMON OR CONTRACT CARRIERS.  (FN1) INSTEAD, CONGRESS CHOSE TO
PROTECT COMMON CARRIERS FROM DESTRUCTIVE COMPETITION BY ENTRUSTING THE
INTERSTATE COMMERCE COMMISSION WITH THE ADMINISTRATION OF CERTAIN
GENERALIZED QUALIFICATIONS NEEDED TO OBTAIN A CONTRACT-CARRIER PERMIT. 

AS ORIGINALLY ENACTED, 49 STAT. 543, 544 (1935), SEC. 203(A)(15)
PROVIDED: 

"THE TERM 'CONTRACT CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON,
(OTHER THAN A COMMON CARRIER)  ...  , WHO OR WHICH, UNDER SPECIAL AND
INDIVIDUAL CONTRACTS OR AGREEMENTS, AND WHETHER DIRECTLY OR BY A LEASE
OR ANY OTHER ARRANGEMENT, TRANSPORTS PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE ...  ." 

THE COMMISSION TO ISSUE PERMITS TO CONTRACT CARRIERS WHEN IT APPEARED,
INTER ALIA: 

"  ...  THAT THE PROPOSED OPERATION, TO THE EXTENT AUTHORIZED BY THE
PERMIT, WILL BE CONSISTENT WITH THE PUBLIC INTEREST AND THE POLICY
DECLARED IN SECTION 202(A) OF THIS PART (THE 1935 FORERUNNER OF THE
NATIONAL TRANSPORTATION POLICY ADOPTED IN 1940)  ...  ."    THE DESIGN
OF THESE SECTIONS WAS EXPLICATED BY THE COMMISSION SHORTLY AFTER THEIR
PASSAGE, IN CONTRACTS OF CONTRACT CARRIERS, 1 M.C.C. 628 (1937).  THIS
WAS A RULE-MAKING PROCEEDING UNDER SEC. 209(B) TO ATTACH LIMITATIONS TO
CONTRACT-CARRIER PERMITS IN ORDER TO FORESTALL TRANSGRESSION UPON
COMMON CARRIAGE.  THE REASONS GIVEN FOR PROMULGATION OF THE RULE AFFORD
PERSUASIVE EVIDENCE OF THE CONTEMPORANEOUS UNDERSTANDING OF THE ACT: 

"THE TERM 'CONTRACT CARRIER' WAS COINED IN STATE STATUTES FOR THE
REGULATION OF MOTOR CARRIERS.  IN A NUMBER OF THESE STATUTES,
PROTECTION OF THE COMMON CARRIER WAS EXPRESSLY RECITED AS THE PURPOSE
OF REGULATING THE CONTRACT CARRIER.  IN OTHERS, THIS PURPOSE APPEARED
BY NECESSARY IMPLICATION  ...    "THIS PRINCIPLE IS INHERENT IN THE
MOTOR CARRIER ACT, 1935.  THE UNDERLYING PURPOSE IS PLAINLY TO PROMOTE
AND PROTECT ADEQUATE AND EFFICIENT COMMON-CARRIER SERVICE BY MOTOR
VEHICLE IN THE PUBLIC INTEREST, AND THE REGULATION OF CONTRACT CARRIERS
IS DESIGNED AND CONFINED WITH THAT END IN VIEW ...  . 

"  ...  .  THE PATENT OBJECT OF CONGRESS IS TO PROTECT THE COMMON
CARRIERS AGAINST CUT-THROAT COMPETITION."  1 M.C.C., AT 629.  SEE ALSO
FILING OF CONTRACTS BY CONTRACT CARRIERS, 20 M.C.C. 8, 11 (1939). 

AFTER RECITING THE RELATIVE FREEDOM FROM REGULATION ENJOYED BY
CONTRACT CARRIERS, THE COMMISSION CONCLUDED, IN TERMS PECULIARLY
APPROPRIATE TO THE PRESENT CONTROVERSY: 

"THIS INHERENT AND INEVITABLE DISADVANTAGE OF THE COMMON CARRIERS IS
ACCENTUATED AND BECOMES A SOURCE OF POSITIVE PERIL TO THEM WHEN
COMPETITORS, CLAIMING TO BE CONTRACT CARRIERS, ARE PROMISCUOUS IN THEIR
DEALINGS WITH SHIPPERS WHO  ...  MAY PLAY THE CONTRACT CARRIER AGAINST
THE COMMON CARRIER ...  WITH THE RESULT THAT THE UNFAIR AND DESTRUCTIVE
COMPETITION WHICH CONGRESS SOUGHT IN THE ACT TO ABATE IS INSTEAD
INTENSIFIED  ...  ."  1 M.C.C., AT 631. 

                          II. 

IN ACTING UPON APPLICATIONS FOR CONTRACT-CARRIER PERMITS, THE
COMMISSION HAS FROM THE BEGINNING REGARDED THE ADEQUACY OF EXISTING
COMMON-CARRIER FACILITIES TO BE OF CRUCIAL IMPORTANCE IN DETERMINING
CONSISTENCY WITH THE PUBLIC INTEREST AS DEFINED BY THE HISTORY AND
PURPOSES OF THE ACT.   IN C.&D. OIL CO. CONTRACT CARRIER APPLICATION, 1
M.C.C. 329, 332 (1936), IT EARLY STATED A GUIDING PRINCIPLE THAT HAS
BEEN REAFFIRMED MANY TIMES SINCE: 

"WE THINK THAT, IN ORDER TO FOSTER SOUND ECONOMIC CONDITIONS IN THE
MOTOR-CARRIER INDUSTRY, EXISTING MOTOR CARRIERS SHOULD NORMALLY BE
ACCORDED THE RIGHT TO TRANSPORT ALL TRAFFIC WHICH THEY CAN HANDLE
ADEQUATELY, EFFICIENTLY, AND ECONOMICALLY IN THE TERRITORIES SERVED BY
THEM, AS AGAINST ANY PERSON NOW SEEKING TO ENTER THE FIELD OF MOTOR
CARRIER TRANSPORTATION IN CIRCUMSTANCES SUCH AS ARE HERE DISCLOSED." 

A REVIEW OF COMMISSION ACTION FROM 1935 TO 1957 DISCLOSES THAT THIS
PRINCIPLE HAS BEEN UNWAVERINGLY APPLIED IN CIRCUMSTANCES IDENTICAL OR
NEARLY SO TO THOSE IN THE PRESENT CASE, AND THAT ITS APPLICATION HAS
PRODUCED CONSISTENT RULINGS EXACTLY AKIN TO THOSE NOW CHALLENGED HERE. 

C.&D. OIL CO. CONTRACT CARRIER APPLICATION, SUPRA.  THE DESIRE OF A
SHIPPER TO ENGAGE THE SERVICES OF A PARTICULAR CARRIER, ALTHOUGH BASED
ON SOUND AND LEGITIMATE BUSINESS REASONS, DOES NOT CONTROL DECISION AS
TO TRANSPORTATION NEEDS, AND IS NOT, STANDING ALONE, ENOUGH TO REQUIRE
A FINDING THAT THE PROPOSED SERVICE WOULD BE CONSISTENT WITH THE PUBLIC
INTEREST OR NATIONAL TRANSPORTATION POLICY. 

R.L. SMITH CONTRACT CARRIER APPLICATION, 1 M.C.C. 717 (1937). 
APPLICANT PROPOSED TO CARRY ONLY PEAK-LOAD SUPPLIES NOT PRESENTLY
CARRIED BY PROTESTANT COMMON CARRIERS, BUT THE PERMIT WAS DENIED
BECAUSE THE EXISTING CARRIERS "MAY AUGMENT THEIR FACILITIES AT WILL
THROUGH THE PURCHASE OR LEASE OF ADDITIONAL EQUIPMENT AND MAY THEREBY
FURNISH SUCH EMERGENCY SERVICE."  (AT 719.)  A LOSS OF POTENTIAL
TRAFFIC WAS THUS MADE DETERMINATIVE. 

EASTERN SHORE OIL CO. CONTRACT CARRIER APPLICATION, 7 M.C.C. 173, 175
176 (1938).  THERE WERE SEVERAL COMMON CARRIERS WITH AUTHORITY AND
FACILITIES TO HANDLE THE PROPOSED TRAFFIC, ALTHOUGH NONE HAD IN FACT
EVER CARRIED ANY OF IT.  THE COMMISSION CONCLUDED THAT NO NEED FOR THE
SERVICE HAD BEEN SHOWN, CONSISTENT WITH THE PUBLIC INTEREST AND THE
NATIONAL TRANSPORTATION POLICY, AND REAFFIRMED ITS RULING IN C.&D. THAT
THE DESIRE OF A SHIPPER TO ENGAGE A PARTICULAR CARRIER WAS INSUFFICIENT
GROUND FOR THE GRANTING OF A PERMIT. 

WILLIAM HEIM CARTAGE CO., EXTENSION OF OPERATIONS - INDIANAPOLIS, 20
M.C.C. 329 (1939).  APPLICANT PROPOSED TO DEDICATE THREE TRUCKS TO
SHIPPER'S EXCLUSIVE USE.  THERE WAS TESTIMONY THAT EXISTING COMMON
CARRIERS HAD THE CAPACITY TO UNDERTAKE THE TRAFFIC.  THE SHIPPER SOUGHT
TO OVERCOME THIS BY CLAIMING (1) THAT BECAUSE OF THE VARIETY OF GOODS
SHIPPED, COMMON-CARRIER RATES WOULD BE PROHIBITIVE, AND (2) THAT IF THE
APPLICATION WAS DENIED, THE SHIPPER WOULD NOT USE COMMON-CARRIER
SERVICE BUT WOULD PROBABLY INITIATE PRIVATE CARRIAGE.  NEVERTHELESS THE
COMMISSION DENIED THE PERMIT, HOLDING THAT THE BURDEN WAS ON THE
APPLICANT TO SHOW THAT ITS PROPOSED SERVICE "WOULD TEND TO CORRECT OR
SUBSTANTIALLY IMPROVE" A DEFICIENCY IN EXISTING SERVICE.  THE "MERE
DESIRE" OF A SHIPPER TO ENGAGE A PARTICULAR CARRIER WAS AGAIN REJECTED
AS A DETERMINING FACTOR. 

HORACE L. DAUM EXTENSION OF OPERATIONS - ILLINOIS, 22 M.C.C. 366
(1940).  SHIPPER HAD BEEN USING ITS OWN TRUCKS, AND SUPPORTED THIS
APPLICATION BY STATING THAT, IF REFUSED, IT WOULD CONTINUE TO USE ITS
OWN FACILITIES.  THE PROTESTANT COMMON CARRIER BY MOTOR VEHICLE HAD
ESTABLISHED THAT ITS EQUIPMENT WAS NOT BEING OPERATED TO FULL CAPACITY,
AND THAT IT WAS ABLE AND WILLING TO PURCHASE ADDITIONAL EQUIPMENT IF
NEEDED.  REAFFIRMING C.&D., THE COMMISSION DENIED THE PERMIT. 

N.S. CRAIG CONTRACT CARRIER APPLICATION, 31 M.C.C. 705 (1941).  THE
COMMISSION HAD BEFORE IT THE AMENDMENTS INTRODUCED BY THE
TRANSPORTATION ACT OF 1940, AND HAD TO DETERMINE WHETHER THE LINES IT
HAD THERETOFORE DRAWN WERE ALTERED BY THE DELETION OF THE WORD
"SPECIAL" FROM SEC. 203(A)(15) (FN2) OR BY THE ADOPTION OF THE NATIONAL
TRANSPORTATION POLICY IN ITS PRESENT FORM.  (FN3)  IT CONCLUDED FROM AN
EXAMINATION OF THE LEGISLATIVE HISTORY THAT, FAR FROM THERE BEING A
CHANGE, CONGRESS HAD APPROVED THE DISTINCTIONS EMPLOYED BY THE
COMMISSION, (FN4) WHICH IT RESTATED IN TERMS THAT ARE NOW UNMISTAKABLY
ENTRENCHED IN THE 1957 AMENDMENT TO SEC. 203(A)(15):  "THE STATUTORY
DEFINITIONS AS NOW AMENDED ARE ESSENTIALLY DECLARATORY OF THE COMMON
LAW.  IN OTHER WORDS, THE FACT OR NOT OF A PUBLIC HOLDING OUT REMAINS
THE FINAL OR ULTIMATE TEST OF COMMON CARRIAGE."  (AT 710.)  NUMEROUS
SECONDARY TESTS HAD BEEN USED TO DISTINGUISH CONTRACT CARRIAGE, BUT
EACH SHARED A COMMON FEATURE:  THE CRITERION OF "SPECIALIZATION, EITHER
IN THE NATURE OF THE PHYSICAL OPERATION, OR IN RESPECT OF THE SHIPPERS
SERVED, WITHOUT SOME SHOWING OF WHICH CONTRACT CARRIAGE CANNOT BE FOUND
TO EXIST."  (AT 711.)  A CARRIER MIGHT ENGAGE IN SPECIALIZED OPERATIONS
AND REMAIN A COMMON CARRIER IF IT HELD ITSELF OUT TO PERFORM SIMILAR
SERVICE FOR ANY SHIPPER THAT MIGHT WANT IT, BUT UNLESS IT DID SO
SPECIALIZE IT COULD NOT BE A CONTRACT CARRIER.  THE SPECIALIZATION THE
COMMISSION HAD IN MIND: 

"  ...  MIGHT TAKE THE FORM OF SPECIALIZED PHYSICAL OPERATIONS
DESIGNED TO MEET THE PECULIAR NEEDS OF PARTICULAR SHIPPERS OR MIGHT
CONSIST IN THE RIGID DEVOTION OF AN OTHERWISE ORDINARY PHYSICAL SERVICE
TO A SINGLE SHIPPER OR VERY LIMITED NUMBER OF SHIPPERS."  (AT 708.) 

THIS, IT WILL BE SEEN, IS AN ALMOST LITERAL PARAPHRASE OF WHAT LATER
EMERGED AS THE 1957 AMENDMENT TO SEC. 203(A)(15). 

HAVING ANTICIPATED EXPLICIT CONGRESSIONAL PURPOSE IN THIS MANNER, THE
COMMISSION CONTINUED TO ADHERE TO ITS EARLIER RULINGS AS CONSISTENT
WITH THAT PURPOSE. 

SAMUEL I. MAJOR CONTRACT CARRIER APPLICATION, 43 M.C.C. 795, 799-800
(1944).  NO SHOWING OF CONSISTENCY WITH PUBLIC INTEREST WHEN THERE ARE
COMMON CARRIERS AUTHORIZED, EQUIPPED, AND WILLING TO HANDLE THE
TRAFFIC. 

WILLARD J. HIBBARD EXTENSION OF OPERATIONS - LIME, 47 M.C.C. 311
(1947).  SHIPPER EMPHATIC THAT ONLY A CONTRACT CARRIER WILL DO, AND
THAT IT WILL NOT USE THE SERVICES OF A COMMON CARRIER.  THE COMMISSION
FOUND FROM THE EVIDENCE THAT EXISTING COMMON CARRIERS COULD
SATISFACTORILY PERFORM THE JOB:  "THE FACT THAT EXISTING CARRIERS HAVE
NOT PARTICIPATED IN THE TRAFFIC, IN THE ABSENCE OF ANY SHOWING THAT
THEY ARE UNABLE OR UNWILLING TO PROVIDE A SERVICE AS REQUIRED, DOES NOT
WARRANT A GRANT OF AUTHORITY TO A NEW CARRIER."  (AT 314.) 

B&F BUS SERVICE, INC., CONTRACT CARRIER APPLICATION, 53 M.C.C. 501
(1951).  IN A SITUATION REMARKABLY LIKE THE PRESENT ONE, THE COMMISSION
DEVISED AND APPLIED CRITERIA VIRTUALLY IDENTICAL TO THOSE ADOPTED BY
CONGRESS IN ITS 1957 AMENDMENT TO SEC. 209(B), AND DENIED THE
APPLICATION.  THE CONTRACT CARRIER THERE PROPOSED AN EXPRESS BUS
SERVICE FOR THE EMPLOYEES OF A PLANT IN CLIFTON, NEW JERSEY, TO CARRY
THEM BACK AND FORTH FROM NEW YORK.  THE PROTESTANT COMMON CARRIERS
ESTABLISHED THAT ONE OR ANOTHER OF THEM COULD CARRY THE PASSENGERS
WITHIN TWO MILES OF THE PLANT WHERE THEY COULD OBTAIN A TRANSFER ON A
LOCAL CROSSTOWN BUS TO AND FROM THE PLANT.  TWO PROTESTANTS OFFERED TO
RUN AN EXPRESS SERVICE IF 30 PASSENGERS COULD BE ASSURED.  EACH
PROTESTANT WAS DESIROUS OF OBTAINING THE TRAFFIC AND THOUGHT IT
NECESSARY FOR HIS BUSINESS TO DO SO. 

IN RESOLVING THE ISSUE, THE COMMISSION FORESAW THE ESSENTIALS OF THE
THIRD AND FOURTH CRITERIA NOW EXPLICITLY COMMENDED TO THEIR
CONSIDERATION BY CONGRESS IN SEC. 209(B): 

"BEFORE THE PROPOSED OPERATION MAY BE AUTHORIZED IT MUST BE FOUND
CONSISTENT WITH THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION
POLICY.  AMONG THE FACTORS TO BE CONSIDERED IN MAKING SUCH
DETERMINATION ARE (1) THE MANNER AND EXTENT SUCH SERVICE WILL AFFECT
THE OPERATIONS OF COMPETING COMMON CARRIERS AND THEIR PATRONS, (2) THE
NATURE AND EXTENT OF THE INCONVENIENCE PROSPECTIVE PATRONS OF THE
PROPOSED CONTRACT-CARRIER SERVICE WILL SUFFER IF IT IS NOT AUTHORIZED
AND, CONVERSELY, THE BENEFITS SUCH SERVICE WILL AFFORD THEM, AND (3)
THE ASCERTAINMENT OF THE PUBLIC INTEREST FROM A WEIGHING OF THESE
RESPECTIVE FACTS."  (AT 504-505.) 

APPLYING THIS FORMULA TO THAT CASE, THE COMMISSION DETERMINED THAT
THE POTENTIAL DAMAGE TO THE COMMON-CARRIER PROTESTANTS FROM LOSS OF A
NEW SERVICE AND OTHERS LIKE IT IN THE FUTURE, OUTWEIGHED THE ADVANTAGE
IN CONVENIENCE OFFERED BY THE CONTRACT-CARRIER APPLICANT.  THE TERMS IN
WHICH IT DREW THE BALANCE ARE OF ESPECIAL PERTINENCY TO OUR
CONTROVERSY: 

"WHERE A PROPOSED CONTRACT-CARRIER SERVICE WOULD SUBSTANTIALLY IMPAIR
THE COMMON-CARRIER SERVICE UPON WHICH THE PUBLIC GENERALLY MUST RELY,
EITHER IMMEDIATELY OR POTENTIALLY THROUGH A WEAKENING OF THE FINANCIAL
ABILITY OF THE COMMON CARRIERS TO MEET THE NEEDS OF THE PUBLIC,
ISSUANCE OF A PERMIT WOULD BE FOUND INCONSISTENT WITH THE PUBLIC
INTEREST."  (AT 505.) 

THIS MODE OF ADJUSTING CONFLICTING INTERESTS WHOSE ACCOMMODATION WAS
LATER EXPLICITLY COMMITTED TO THE COMMISSION BY CONGRESS FURNISHES
STRONG EVIDENCE OF THE WAY IN WHICH THOSE FACTORS ARE APPROPRIATELY
EVALUATED.  SUBSEQUENT RULINGS AFFORD IMPRESSIVE PROOF OF THIS UNIFORM
ADMINISTRATIVE PRACTICE. 

KILMER TRANSP.  CO. EXTENSION - UNIONTOWN, 53 M.C.C. 561 (1951). 
THIS IS ANOTHER CASE VERY CLOSE TO THE PRESENT ONE ON ITS FACTS. 
SHIPPERS OF FRAGILE EARTHENWARE PRODUCTS, REQUIRING SPECIAL HANDLING
AND EQUIPMENT, DESIRED TO USE A CONTRACT CARRIER WHICH HAD DESIGNED
SPECIAL TRAILERS, TRAINED EXPERIENCED DRIVERS, AND PROPOSED TO DEDICATE
ITS EQUIPMENT TO THE EXCLUSIVE USE OF THE SHIPPERS.  THERE WERE A
NUMBER OF COMMON CARRIERS AUTHORIZED AND WITH THE CAPACITY TO CARRY
THIS TRAFFIC.  THE SHIPPERS HAD EXPERIENCED SOME DELAYS WITH COMMON
CARRIAGE AND WISHED THE FLEXIBILITY PROPOSED BY THE APPLICANT OF
PICKING UP PORTIONS OF A LOAD AT DIFFERENT FACTORIES.  THE APPLICATION
WAS DENIED, THE COMMISSION STATING THAT "IN THE ABSENCE OF A SHOWING
THAT THE PROPOSED SERVICE WOULD PROVIDE SHIPPER WITH SOMETHING
SUBSTANTIAL IN THE WAY OF SERVICE WHICH EXISTING CARRIERS ARE UNABLE OR
UNWILLING TO PROVIDE, THE APPLICATION MUST BE DENIED."  (AT 571.) 

BEATTY MOTOR EXPRESS, INC., EXTENSION - SOAP TO PITTSBURGH, PA., 66
M.C.C. 160 (1955).  THE APPLICATION WAS SUPPORTED BY A SHIPPER WHO HAD
HAD A SATISFACTORY EXPERIENCE WITH THE APPLICANT AND WISHED TO CONTINUE
ITS SERVICE.  IN REFUSING THE REQUESTED PERMIT, THE COMMISSION
RECAPITULATED THE STANDARDS IT WAS APPLYING, CLARIFYING ESPECIALLY THE
MATTER OF BURDEN OF PROOF: 

"IT IS CLEAR FROM THE RECORD THAT EXISTING CARRIERS HAVE THE
AUTHORITY, EQUIPMENT, AND FACILITIES NECESSARY TO TRANSPORT ALL OF THE
CONSIDERED COMMODITIES FROM AND TO THE POINTS INVOLVED  ...  . NOR IS
THERE ANY SHOWING THAT THE PROPOSED SERVICE IS SO UNIQUE OR SO
SPECIALIZED THAT THE EXISTING CARRIERS ARE UNABLE TO PROVIDE THE
SUPPORTING SHIPPER WITH A REASONABLY SATISFACTORY SERVICE.  THERE IS NO
DOUBT THAT A GRANT OF AUTHORITY TO TRANSPORT THE INVOLVED SOAP PRODUCTS
AND PREPARATIONS WOULD BE CONVENIENT TO THE SUPPORTING SHIPPER, BUT THE
RECORD IS LACKING IN PROOF THAT THE SHIPPER WILL BE PREJUDICED OR
HANDICAPPED UNLESS THE AUTHORITY SOUGHT IS GRANTED.  PAST USE OF A
MOTOR-CARRIER SERVICE, COUPLED WITH THE MERE PREFERENCE FOR THE SERVICE
OF A PARTICULAR CARRIER OVER THAT OF EXISTING CARRIERS, IS NOT
SUFFICIENT TO WARRANT A GRANT OF AUTHORITY.  WE HAVE CONSISTENTLY HELD
THAT EXISTING CARRIERS SHOULD BE ACCORDED THE RIGHT TO TRANSPORT ALL
TRAFFIC WHICH, UNDER NORMAL CONDITIONS, THEY CAN HANDLE ADEQUATELY,
EFFICIENTLY, AND ECONOMICALLY IN THE TERRITORY SERVED BY THEM, WITHOUT
THE COMPETITION OF A NEW OPERATION."  (AT 162.) 

OVERLAND FREIGHT LINES, INC., EXTENSION - KENTUCKY, 69 M.C.C. 143,
148 (1956).  AN APPLICATION WAS DENIED DESPITE EVIDENCE THAT THE
PLACEMENT OF COMMON CARRIERS AT THE SHIPPER'S PLATFORM HAD INVOLVED
DELAYS REQUIRING PAYMENT OF OVERTIME THAT RAISED COSTS ON LOW-SALES
VALUE UNITS OF MERCHANDISE.  "WE CANNOT REASONABLY CONCLUDE THAT THEIR
PLACEMENTS, AS A WHOLE, HAVE BEEN SO UNREASONABLY DELAYED OR SO
INCONVENIENTLY MADE AS TO MERIT A FINDING THAT THE SERVICES OF THESE
CARRIERS HAVE BEEN INADEQUATE."  PAST DILIGENCE AND FUTURE WILLINGNESS
TO SPOT EQUIPMENT AT THE PLANT WERE SHOWN AND RELIED ON TO DENY THE
APPLICATION.    REFINERS TRANSPORT, INC., EXTENSION - MISSOURI, 71
M.C.C. 272 (1957).  ISSUANCE OF A PERMIT WAS REFUSED DESPITE (1)
EVIDENCE OF THREE OCCASIONS OF UNSATISFACTORY SHIPMENT BY THE
PROTESTANTS, AND (2) A STATEMENT BY THE CONSIGNEE THAT IT WOULD DO
FURTHER BUSINESS WITH THE SHIPPER ONLY IF THE APPLICANT'S
TRANSPORTATION SERVICE WAS OBTAINED. 

      III. 

THE LAW AND PRACTICE GOVERNING CONTRACT-CARRIER APPLICATIONS, AS IT
EMERGED FROM THE LANGUAGE, HISTORY, AND PURPOSES OF THE MOTOR CARRIER
ACT AND FROM CONSISTENT ADMINISTRATIVE CONSTRUCTION BETWEEN 1935 AND
1957, MAY BE SUMMARIZED AS FOLLOWS.  STRICTLY REGULATED COMMON CARRIAGE
WAS CONSIDERED THE BACKBONE OF THE MOTOR TRANSPORT INDUSTRY.  CONTRACT
CARRIERS MIGHT BE ABLE TO PERFORM CERTAIN SPECIALIZED TRANSPORTATION
TASKS MORE EASILY THAN COMMON CARRIERS, AND WHEN THIS WAS SO THEY
SHOULD BE ALLOWED TO ENTER THE FIELD.  IN ORDER TO PRESERVE THE
FINANCIAL AND OPERATIONAL CAPACITY OF COMMON CARRIERS TO PERFORM THE
VARIETY OF TASKS REQUIRED BY THE PUBLIC, HOWEVER, APPLICANTS FOR A
CONTRACT-CARRIER PERMIT MUST NOT BE AWARDED BUSINESS THAT EXISTING
COMMON CARRIERS ARE EQUIPPED AND OBLIGED IN THEIR CERTIFICATES TO
HANDLE.  ACCORDINGLY, THE APPLICANT MUST FIRST DEMONSTRATE THAT HE
PROPOSES A SPECIALIZED UNDERTAKING.  PROTESTANTS MAY THEN PRESENT
EVIDENCE THAT THEY HAVE THE CAPACITY AND THE DESIRE TO CARRY THE
PARTICULAR TRAFFIC PROPOSED.  IF THAT IS DONE, THE BURDEN SHIFTS BACK
TO THE APPLICANT TO DEMONSTRATE THAT THE PROTESTANTS ARE NOT SO WELL
EQUIPPED AS HE TO MEET THE NEEDS OF THE SHIPPER.  SHIPPER PREFERENCE IS
NOT SUFFICIENT.  UNLESS THE APPLICANT CAN SHOW THAT ITS SERVICE WILL BE
SUBSTANTIALLY SUPERIOR TO THAT OFFERED BY THE PROTESTANTS, THE ISSUANCE
OF A PERMIT MUST BE REFUSED, AND THIS ALTHOUGH THE PROTESTANT MAY NEVER
HAVE CARRIED THE TRAFFIC BEFORE AND MAY HAVE NO ASSURANCE THAT IT WILL
BE OFFERED HIM ONCE THE APPLICATION IS DENIED.  ONLY THUS, THE
COMMISSION HAD CONCLUDED, COULD THE POLICY OF CONGRESS TO PRESERVE A
VIABLE SYSTEM OF COMMON CARRIAGE BE SATISFIED. 

IT IS THIS BODY OF PRECEDENT, CONSCIENTIOUSLY DEVELOPED OVER A PERIOD
OF YEARS TO EFFECTUATE THE POLICIES FORMULATED IN THE MOTOR CARRIER ACT
FOR COMMISSION ENFORCEMENT, THAT WE ARE TOLD WAS OVERTURNED BY
CONGRESSIONAL AMENDMENT IN 1957.  AND SO WE MUST TURN TO THE TERMS,
ORIGIN, AND PURPOSE OF THOSE AMENDMENTS. 

AS NOW AMENDED BY 71 STAT. 411 (1957), SEC. 203(A)(15), 49 U.S.C.
SEC. 303(A)(15) READS AS FOLLOWS: 

"THE TERM 'CONTRACT CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON WHICH
ENGAGES IN TRANSPORTATION BY MOTOR VEHICLE OF PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE, FOR COMPENSATION (OTHER THAN AS A
COMMON CARRIER)  ...  UNDER CONTINUING CONTRACTS WITH ONE PERSON OR A
LIMITED NUMBER OF PERSONS EITHER (A) FOR THE FURNISHING OF
TRANSPORTATION SERVICES THROUGH THE ASSIGNMENT OF MOTOR VEHICLES FOR A
CONTINUING PERIOD OF TIME TO THE EXCLUSIVE USE OF EACH PERSON SERVED OR
(B) FOR THE FURNISHING OF TRANSPORTATION SERVICES DESIGNED TO MEET THE
DISTINCT NEED OF EACH INDIVIDUAL CUSTOMER." 

71 STAT. 411 (1957) ADDED TO SEC. 209(B), 49 U.S.C. SEC. 309(B), THE
FOLLOWING PROVISION: 

"IN DETERMINING WHETHER ISSUANCE OF A PERMIT WILL BE CONSISTENT WITH
THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION POLICY DECLARED IN
THIS ACT, THE COMMISSION SHALL CONSIDER (1) THE NUMBER OF SHIPPERS TO
BE SERVED BY THE APPLICANT, (2) THE NATURE OF THE SERVICE PROPOSED, (3)
THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE SERVICES OF
THE PROTESTING CARRIERS AND (4) THE EFFECT WHICH DENYING THE PERMIT
WOULD HAVE UPON THE APPLICANT AND/OR ITS SHIPPER AND (5) THE CHANGING
CHARACTER OF THAT SHIPPER'S REQUIREMENTS."  (FN5) 

FROM THE ITALICIZED CHANGES IT IS SAID TO FOLLOW THAT THE COMMISSION
MAY NO LONGER ASSIGN DUE WEIGHT, IN ITS JUDGMENT, TO THE ABILITY OF
EXISTING COMMON CARRIERS TO FURNISH SUBSTANTIALLY THE TRANSPORTATION
SERVICE PROPOSED.  THIS IS SO, IT IS ARGUED, BECAUSE FACTORS (3) AND
(4) ARE PLACED IN CONJUNCTIVE EQUIPOISE, DEMANDING A BALANCE ON
UNTILTED SCALES.  AND THE FULCRUM, TO COMPLETE THE METAPHOR, IS LOCATED
BY THIS ARGUMENT PRECISELY AT THE "DISTINCT NEED" OF THE SHIPPER
REFERRED TO IN AMENDED SEC. 203(A)(15). 

IF THE ISSUE BEFORE US WERE ONLY WHETHER THE LANGUAGE OF THE
AMENDMENTS COULD BEAR THIS CONSTRUCTION, THERE WOULD BE LITTLE
ARGUMENT.  BUT EVEN IF THE SUGGESTED INTERPRETATION WERE SUPPORTED BY
THE PLAIN MEANING OF THE WORDS, THIS WOULD NOT ADVANCE OUR INQUIRY VERY
FAR.  FOR THE "PLAIN MEANING" RULE AS AN AUTOMATIC CANON OF STATUTORY
CONSTRUCTION IS MISCHIEVOUS AND MISLEADING AND HAS BEEN LONG AGO
REJECTED.  SEE BOSTON SAND CO. V. UNITED STATES, 278 U.S. 41, 48;
UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 542-550. 
WORDS ARE SELDOM SO PLAIN THAT THEIR CONTEXT CANNOT SHAPE THEM.  ONCE
THE "TYRANNY OF LITERALNESS" IS REJECTED, UNITED STATES V. WITKOVICH,
353 U.S. 194, 199, THE REAL MEANING OF SEEMINGLY PLAIN WORDS MUST BE
SUPPLIED BY A CONSIDERATION OF THE STATUTE AS A WHOLE AS WELL AS BY AN
INQUIRY INTO RELEVANT LEGISLATIVE HISTORY.  INDEED WHEN THERE IS NEED
FOR AID, WE MAY TURN TO "ALL THE LIGHT RELEVANTLY SHED UPON THE WORDS
AND THE CLAUSE AND THE STATUTE THAT EXPRESS THE PURPOSE OF CONGRESS,"
UNITED STATES V. UNIVERSAL CORP., 344 U.S. 218, 221. 

THE STARTING POINT FOR DETERMINING LEGISLATIVE PURPOSE IS PLAINLY AN
APPRECIATION OF THE "MISCHIEF" THAT CONGRESS WAS SEEKING TO ALLEVIATE. 
IN THIS INSTANCE, FORTUNATELY, IT IS NOT HARD TO FIND, FOR THE COURT
ITSELF EXPOSED IT IN UNITED STATES V. CONTRACT STEEL CARRIERS, 350 U.S.
409.  THE COMMISSION HAD THERE DETERMINED THAT A CONTRACT CARRIER HAD,
THROUGH ACTIVE SOLICITATION OF SOME 69 TRANSPORTATION CONTRACTS, SO
EXPANDED ITS BUSINESS AS TO BECOME INDISTINGUISHABLE IN OPERATION FROM
A COMMON CARRIER, AND ORDERED IT TO CEASE AND DESIST.  THIS COURT
AFFIRMED REVERSAL OF THAT ORDER, RELYING ON SEC. 209(B) AS IT WAS THEN
WRITTEN (FN6) TO DECLARE THAT "A CONTRACT CARRIER IS FREE TO
AGGRESSIVELY SEARCH FOR NEW BUSINESS WITHIN THE LIMITS OF HIS
LICENSE."  350 U.S., AT 412. 

THE LATITUDE THUS AUTHORITATIVELY RECOGNIZED IN CONTRACT CARRIERS TO
ENGAGE ESSENTIALLY IN COMMON CARRIAGE WITHOUT AT THE SAME TIME
SUBJECTING THEMSELVES TO REGULATION AS COMMON CARRIERS, WAS THE
MISCHIEF THAT PROMPTED THE COMMISSION TO SEEK A RESTRICTIVE REWRITING
OF SECS. 203(A)(15) AND 209(B).  70 I.C.C. ANN. REP. 162 (1956). 
CHAIRMAN CLARKE OF THE COMMISSION TESTIFIED IN THE SENATE HEARINGS ON
THE COMMISSION'S PROPOSED BILL THAT, AS MATTERS THEN STOOD, CONTRACT
CARRIER EXPANSION COULD IMPAIR THE ABILITY OF COMMON CARRIERS TO OFFER
SERVICE TO THE GENERAL PUBLIC, PARTICULARLY TO THE SMALL SHIPPER WHO
COULD NOT AFFORD THE SERVICES OF A CONTRACT CARRIER.  THE COMMISSION
FEARED THAT THE INHERENT ADVANTAGES OF CONTRACT CARRIERS WOULD PERMIT
THEM TO "ENCROACH UPON THE OPERATIONS OF THE COMMON CARRIERS AND SKIM
OFF THE CREAM OF THE TRAFFIC UPON WHICH THEY DEPEND TO SUPPORT THEIR
OVERALL SERVICE TO THE PUBLIC."  (FN7) 

THIS CLEARLY WAS THE APPREHENDED EVIL THAT PROMPTED A FAVORABLE
REPORT OF THE AMENDMENTS.  S. REP. NO. 703, 85TH CONG., 1ST SESS. 1, 3,
7 (1957).  AS PHRASED IN THE HOUSE REPORT, THE FREEDOM ACCORDED
CONTRACT CARRIERS IN THE CONTRACT STEEL DECISION "OBLITERATES THE
DISTINCTION WHICH CONGRESS INTENDED TO MAKE BETWEEN COMMON AND CONTRACT
CARRIERS, AND OPENS THE DOOR TO UNJUST DISCRIMINATION AMONG SHIPPERS." 
H.R. REP. NO. 970, 85TH CONG., 1ST SESS. 3 (1957).  IN PRESENTING THE
BILL THAT WAS ADOPTED BY CONGRESS, SENATOR SMATHERS, THE SENATE
SUBCOMMITTEE CHAIRMAN, THUS STATED THE NEED IT WAS DESIGNED TO
FULFILL: 

"UNLIMITED DIVERSION OF TRAFFIC FROM COMMON CARRIERS TO CONTRACT
CARRIERS COULD IMPAIR THE COMMON CARRIERS' ABILITY TO RENDER ADEQUATE
SERVICE TO THE GENERAL PUBLIC; CONSEQUENTLY, A MORE PRECISE DEFINITION
OF CONTRACT CARRIAGE IN THE INTERSTATE COMMERCE ACT IS DEEMED
NECESSARY. 

     *         *         *        *         * 

"THE DECISION OF THE SUPREME COURT CLEARLY MEANS THAT THE CONGRESS
SHOULD DO SOMETHING TO CORRECT THE SITUATION."  103 CONG. REC. 14035,
14036 (1957). 

THE "MORE PRECISE DEFINITION OF CONTRACT CARRIAGE" IN THE RESULTING
SEC. 203(A)(15) WAS PLAINLY INTENDED TO RESTRICT THE OPPORTUNITIES OF
CONTRACT CARRIERS, NOT TO ENHANCE THEM. 

TO BE SURE, THE ADDITION OF THE FIVE CRITERIA FOR COMMISSION
CONSIDERATION IN THE AMENDMENT TO SEC. 209(B) WAS NOT EXPLICITLY
RESPONSIVE TO THE CONTRACT STEEL DECISION.  NEITHER THE HOUSE NOR THE
SENATE REPORT MAKES ANY MENTION OF THE MEANING OR PURPOSE OF THE
ADDITION.  THE CRITERIA WERE NOT CONTAINED IN THE BILLS, S. 1384 AND
H.R. 5123, 85TH CONG., 1ST SESS. (1957), AS INITIALLY PROPOSED BY THE
COMMISSION.  THEY EMANATED INSTEAD FROM A SUGGESTION BY THE CONTRACT
CARRIER CONFERENCE, AN APPELLEE IN THIS CASE; AND THERE IS LANGUAGE IN
THE TESTIMONY OF ITS GENERAL COUNSEL, CLARENCE D. TODD, BEFORE THE
SENATE SUBCOMMITTEE, FROM WHICH SUPPORT IS NOW DRAWN FOR THE APPELLEES'
POSITION: 

"THE PRIMARY THING THAT WE HAVE ALWAYS FELT THE COMMISSION SHOULD DO
IN THOSE CASES IS CONSIDER NOT ONLY THE EFFECT OF GRANTING THIS
AUTHORITY ON THE COMMON CARRIER - THEY DO THAT IN EACH AND EVERY CASE -
BUT TO CONSIDER THE EFFECT DENIAL WILL HAVE ON THE CONTRACT CARRIERS;
THE PUBLIC INTEREST IS SOMETHING TO BE BALANCED, AND WE THINK THAT BOTH
OF THOSE MATTERS SHOULD BE TAKEN INTO CONSIDERATION."  SENATE HEARINGS
300. 

THESE OBSERVATIONS, IT WILL BE NOTED, DID NOT ADDRESS THEMSELVES TO
THE EFFECT OF A DENIAL ON THE SHIPPER, WHICH IS AT ISSUE HERE. 
CONSIDERATION OF THE SHIPPER'S NEEDS WAS NOT ADVERTED TO IN THE
RECOMMENDATIONS MADE BY THE CONTRACT CARRIER CONFERENCE, SEE SENATE
HEARINGS 305; IT WAS ADDED BY THE SUBCOMMITTEE.  IN ANY EVENT, THE
"BALANCE" TO BE STRUCK WAS NOT DEFINED, NOR THE PROCESS BY WHICH IT WAS
TO BE DETERMINED.  AS A MATTER OF FACT, THE CONTRACT CARRIERS APPEAR TO
HAVE ACCEPTED THE EXISTING COMMISSION PRACTICE; THEY NEITHER ASKED FOR
NOR ANTICIPATED RELAXATION OF IT: 

"THE AMENDMENT SUGGESTED BY THE CONTRACT CARRIERS WOULD STILL REQUIRE
PROOF THAT THE PROPOSED SERVICE IS 'CONSISTENT WITH THE PUBLIC INTEREST
AND THE NATIONAL TRANSPORTATION POLICY' BUT IT SETS FORTH CERTAIN
MATTERS WHICH THE COMMISSION SHOULD CONSIDER IN DETERMINING THIS
QUESTION.  WE DO NOT BELIEVE THAT THIS AMENDMENT WOULD MAKE IT ANY
EASIER FOR OUR CONTRACT CARRIERS TO OBTAIN NEW AUTHORITY  ...  .  ALL
IT WOULD DO WOULD BE TO REQUIRE THE COMMISSION TO GIVE CONSIDERATION TO
FACTORS WHICH, IN OUR OPINION, ARE IMPORTANT TO THE PUBLIC INTEREST." 
SENATE HEARINGS 304. 

THAT THIS WAS CONGRESS' UNDERSTANDING OF THE ADDITION IS EVIDENCED BY
SENATOR SMATHERS' EXPLANATION IN RECOMMENDING ITS ADOPTION:  "IN THIS,
THE COMMITTEE IS PROPOSING TO GIVE THE COMMISSION MORE HELPFUL
STANDARDS THAN ARE CONTAINED IN THE PRESENT LAW."  103 CONG.  REC.
14036 (1957).  LIKE EVIDENCE IS CONTAINED IN A LETTER FROM CHAIRMAN
CLARKE TO THE HOUSE COMMITTEE, STATING THE COMMISSION'S BELIEF "THAT
H.R. 8825 (THE BILL AMENDED BY THE SENATE AS IT EVENTUALLY PASSED) IS
AN IMPROVEMENT OVER H.R. 5123, SUBMITTED BY THE COMMISSION IN DRAFT
FORM."  H.R. REP NO. 970, 85TH CONG., 1ST SESS., APPENDIX (1957).  THIS
IS HARDLY THE LANGUAGE OF A LOSER.  IF, IN CONSTRUING LEGISLATION, WE
ARE TO LOOK TO THE SPONSORS OF A BILL TO DETERMINE ITS MEANING,
SCHWEGMANN BROS. V. CALVERT CORP., 341 U.S. 384, 394-395, THESE
STATEMENTS SHOULD LEAVE NO DOUBT THAT THE ADDITION OF THE FIVE CRITERIA
TO SEC. 209(B) WORKED NO CHANGE IN THE COMMISSION'S LONGSTANDING
PRACTICE OF PREFERRING AVAILABLE COMMON CARRIERS TO CONTRACT-CARRIER
APPLICANTS. 

THESE PARTICULARIZED INDICATIONS ARE CONFIRMED AND REINFORCED BY THE
LEGISLATIVE HISTORY AS A WHOLE FOR PRECLUDING THE VIEW, UNDERLYING THE
DISTRICT COURT'S DECISION, THAT THE 1957 AMENDMENTS INTRODUCED A
RADICAL DEPARTURE IN REGULATORY POLICY.  AS WE HAVE SEEN, THE
COMMISSION HAD, IN ADVANCE OF THE AMENDMENTS, DEVELOPED AND APPLIED THE
CRITERIA AT ISSUE IN THIS CASE, AND HAD STRUCK THE SAME BALANCE THERE
AS HERE.  B&F BUS SERVICE, INC., CONTRACT CARRIER APPLICATION, SUPRA.
NEITHER THIS LEADING COMMISSION DISPOSITION, NOR ANY OTHER TO THE SAME
EFFECT, WAS CRITICIZED OR EVEN MENTIONED TO THE SUBCOMMITTEE THAT
DRAFTED THE AMENDED BILL.  HAD THE COMMISSION, WHICH MAINTAINED A
REPRESENTATIVE THROUGHOUT THE SENATE HEARINGS, SUSPECTED THAT ITS
PRACTICE IN THIS REGARD WAS BEING OVERTURNED, IT WOULD SCARCELY HAVE
GIVEN THE UNQUALIFIED APPROVAL THAT IT DID TO THE FINAL BILL.  SEE H.R.
REP. NO. 970, 85TH CONG., 1ST SESS. 2 (1957); S. REP. NO. 703, 85TH
CONG., 1ST SESS.  6 (1957); 103 CONG. REC. 14035 (1957)(REMARKS OF SEN.
SMATHERS).  ON THE CONTRARY, IT HAD GOOD REASON FOR ASSUMING THAT ITS
PRACTICE WAS BEING APPROVED.  THE REPORT THAT ISSUED FROM THE HEARINGS
CONTAINED THE FOLLOWING ENDORSEMENT: 

"YOUR COMMITTEE IS OF THE OPINION THAT THE PUBLIC INTEREST IN A SOUND
TRANSPORTATION SYSTEM, AND PARTICULARLY IN A STABLE AND ADEQUATE SYSTEM
OF COMMON CARRIAGE, IN THE LIGHT OF THE OBJECTIVES OF THE NATIONAL
TRANSPORTATION POLICY, REQUIRE THAT THE BILL, AS AMENDED, BE PASSED." 
S. REP. NO. 703, 85TH CONG., 1ST SESS. 7 (1957). 

FURTHERMORE, THE VERY SAME SESSION OF CONGRESS THAT PASSED THE
AMENDMENTS HERE IN ISSUE ALSO AMENDED SEC. 218(A), BY 71 STAT. 343
(1957), 49 U.S.C. SEC. 318(A), TO REQUIRE CONTRACT CARRIERS TO FILE
ACTUAL RATHER THAN MINIMUM RATES OR CHARGES.  THIS LEGISLATION WAS
REQUESTED BY THE COMMISSION, 70 I.C.C. ANN. REP. 168-169 (1956), AND
RECOMMENDED BY SENATOR SMATHERS' SUBCOMMITTEE, S. REP. NO. 335, 85TH
CONG., 1ST SESS. 2 (1957), TO ELIMINATE A COMPETITIVE ADVANTAGE HELD BY
CONTRACT CARRIERS.   IT SHOULD BE CONSTRUED IN PARI MATERIA WITH THE
AMENDMENTS TO SECS. 203(A)(15) AND 209(B).  THAT THE 1957 CONGRESS
SHARED THE ORIGINAL UNDERSTANDING OF THE MOTOR CARRIER ACT'S PURPOSE IS
MANIFESTED IN THE SENATE REPORT, AT 2:    "THE UNDERLYING PURPOSE OF
THE MOTOR CARRIER ACT (PT. II OF THE INTERSTATE COMMERCE ACT) IS THE
PROMOTION AND PROTECTION OF ADEQUATE AND EFFICIENT COMMON-CARRIER
SERVICE BY MOTOR VEHICLE IN THE PUBLIC INTEREST.  THE REGULATION OF
CONTRACT CARRIERS WAS DESIGNED WITH THAT END, AMONG OTHERS, IN VIEW." 

                             IV. 

THE FOREGOING DISTILLATION OF STATUTORY PURPOSE FROM THE LEGISLATIVE
HISTORY OF THE AMENDMENTS IS NOT AFFECTED BY THE DELETION FROM THE BILL
OF LANGUAGE INITIALLY SUBMITTED BY THE COMMISSION.  IN ITS ORIGINAL
FORM, S. 1384 WOULD HAVE AMENDED THE DEFINITION OF A CONTRACT CARRIER
IN SEC. 203(A)(15) TO MAKE IT ONE ENGAGING IN TRANSPORTATION UNDER
CONTRACTS FOR THE FURNISHING OF SPECIAL AND INDIVIDUAL SERVICES
REQUIRED BY THE CUSTOMER "AND NOT PROVIDED BY COMMON CARRIERS."  THE
COMMISSION BILL WOULD HAVE ALSO AMENDED SEC.  209(B) TO REQUIRE A
SHOWING BY A CONTRACT-CARRIER APPLICANT "THAT EXISTING COMMON CARRIERS
ARE UNWILLING OR UNABLE TO PROVIDE THE TYPE OF SERVICE FOR WHICH A NEED
HAS BEEN SHOWN."  (FN8)  THE QUOTED LANGUAGE WAS OBJECTED TO BY THE
JUSTICE DEPARTMENT, SENATE HEARINGS 10-11, AND DELETED BY THE SENATE
SUBCOMMITTEE, S. REP. NO. 703, 85TH CONG., 1ST SESS. 3 (1957), AS
"UNDULY RESTRICTIVE" OF CONTRACT CARRIAGE.  THIS DOES NOT AFFECT
CONSTRUCTION OF THE AMENDMENTS AS THEY EMERGED IN FINAL FORM, SO FAR AS
THEY ARE RELEVANT TO OUR PROBLEM.  THE FACT THAT THE COMMISSION
WITHDREW ITS INITIAL SUGGESTION FOR INCREASED RESTRICTIONS ON CONTRACT
CARRIAGE HARDLY AFFORDS THE BASIS FOR A CONCLUSION THAT EXISTING
RESTRICTIONS WERE LEGISLATIVELY DISAPPROVED OR NARROWED. 

IN TRUTH, THE COMMISSION'S LANGUAGE WAS DELETED BECAUSE IT WAS
THOUGHT TO PLACE AN IMPOSSIBLE BURDEN OF PROOF ON AN APPLICANT, OF
DEMONSTRATING A STATE OF MIND ("UNWILLING"), OR OF FACILITIES
("UNABLE"), ENTIRELY WITHIN THE KNOWLEDGE OF THE PROTESTANT.  THUS,
VERY EARLY IN THE SENATE HEARINGS, BEFORE ANY OTHER WITNESS HAD BEEN
HEARD FROM, CHAIRMAN CLARKE WITHDREW THE "UNWILLING" LANGUAGE FROM THE
SUGGESTED AMENDMENT TO SEC. 209(B) "BECAUSE OF THE VERY DIFFICULT
BURDEN OF PROOF THAT WOULD BE IMPOSED ON APPLICANTS  ...  ."  SENATE
HEARINGS 22.  LATER ON, THE REPRESENTATIVE OF THE CONTRACT CARRIER
CONFERENCE ASKED FOR DELETION OF THE "NOT PROVIDED" LANGUAGE, SUPRA,
FROM THE AMENDMENT TO SEC. 203(A)(15) BECAUSE IT PRESENTED THE VERY
SAME BURDEN OF PROOF PROBLEM.  SENATE HEARINGS 294-295.  THE COMMISSION
SUBSEQUENTLY RECOMMENDED THIS DELETION BECAUSE THE LANGUAGE WAS "NOT
NECESSARY TO CARRY OUT THE PURPOSE OF THE BILL  ...  ."  SENATE
HEARINGS 43-44.  SEE ALSO S. REP. NO. 703, 85TH CONG., 1ST SESS. 5
(1957).  (FN9)

   V. 

AN AMENDMENT IS NOT TO BE READ IN ISOLATION BUT AS AN ORGANIC PART OF
THE STATUTE IT AFFECTS.  AN AMENDMENT IS NOT A REPEAL.  EVEN WHEN PLAIN
WORDS ARE SUGGESTIVE OF A CHANGE IN POLICY, THEY ARE NOT TO BE
CONSTRUED AS SUCH IF THERE HAS BEEN A HISTORY OF CONSISTENT CONTRARY
LEGISLATIVE POLICY.  BOSTON SAND CO. V. UNITED STATES, 278 U.S. 41;
GUESSEFELDT V. MCGRATH, 342 U.S. 308, 313-315. 

THE INTERSTATE COMMERCE COMMITTEES THAT CONSIDERED THESE AMENDMENTS
WERE ADDRESSING THEMSELVES TO A LIMITED PROBLEM LAID BARE BY THE
CONTRACT STEEL DECISION.  IT WOULD BE HEEDLESS OF THE PRACTICALITIES OF
LEGISLATIVE PROCEDURE TO ASSUME THAT THESE EXPERIENCED COMMITTEES CHOSE
TO USE THE OCCASION TO OVERTURN A CONSISTENT PATTERN OF STATUTORY
REGULATION WITHOUT INVITING THE VIEWS OF THE COMMISSION, WITHOUT
UNDERTAKING ANY REVIEW OF COMMISSION PRECEDENTS, AND WITHOUT SELECTING
LANGUAGE PLAINLY EVINCING A PURPOSE TO CHANGE THE LAW IN THIS RESPECT. 
TO THE CONTRARY, IT SEEMS CLEAR THAT THESE CAREFUL ARCHITECTS OF MOTOR
CARRIER REGULATION FASHIONED AMENDMENTS THAT FIT HARMONIOUSLY INTO THE
PRIOR LAW.  THEY DID NOT INADVERTENTLY ADD A COLONIAL WING TO A GOTHIC
CATHEDRAL. 

                          VI. 

WHAT HAS BEEN SAID DISPOSES OF THE CONTENTION THAT THE COMMISSION
ERRONEOUSLY IMPORTED A "SIXTH CRITERION" OF THE ADEQUACY OF EXISTING
COMMON-CARRIER SERVICES INTO ITS CONSIDERATION OF THIS APPLICATION.  IT
DID NOT.  THAT CRITERION IS IMPLICIT IN THE THIRD FACTOR ENUNCIATED IN
AMENDED SEC. 209(B):  "THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE
UPON THE SERVICES OF THE PROTESTING CARRIERS."  THIS HAS ALWAYS BEEN A
CRUCIAL CONSIDERATION IN CONTRACT-CARRIER PROCEEDINGS, AND NOTHING IN
THE AMENDMENTS INTIMATES A CHANGE.  THE FUNDAMENTAL DIFFICULTY WITH THE
DISTRICT COURT'S JUDGMENT IN THIS CASE IS THAT IT RESTS UPON A MISTAKEN
APPREHENSION THAT THE 1957 AMENDMENTS HAD ELIMINATED PREFERENCE FOR
EXISTING COMMON-CARRIER SERVICE AS A PERMISSIBLE DETERMINANT OF
COMMISSION ACTION.  THUS IT CHARACTERIZED THE CRITERIA IN SEC.  209(B)
AS DESIGNED "TO INSURE THAT THEIR (APPLICANT'S AND SHIPPER'S) INTERESTS
WOULD RECEIVE THE SAME CONSIDERATION AND BE WEIGHED IN THE SAME BALANCE
AS THOSE OF OPPOSING CARRIERS."  185 F. SUPP. 838, 848 (W.D. MO.
1960).  THIS WAS A DESTRUCTIVE ERROR. 

THERE REMAIN THREE FURTHER GROUNDS ON WHICH THE DISTRICT COURT
INVALIDATED THE COMMISSION'S ORDER. 

(1)  THE COURT HELD THAT THE COMMISSION HAD IMPOSED ON THE APPLICANT
THE PRECISE BURDEN OF PROOF PROPOSED IN THE REJECTED LANGUAGE OF ITS
BILL, THAT EXISTING CARRIERS WERE UNABLE OR UNWILLING TO PROVIDE THE
TRANSPORTATION SERVICE APPLIED FOR.  HAD THE COMMISSION DONE THIS IT
WOULD HAVE BEEN IN CLEAR ERROR.  IT DID NOT DO SO. 

THE TRIAL EXAMINER'S FINDINGS AND RECOMMENDED ORDER WERE FIRST
REVIEWED BY DIVISION 1 OF THE COMMISSION.  IT HELD IN PART THAT "THE
BURDEN IS UPON AN APPLICANT SEEKING CONTRACT-CARRIER AUTHORITY, AS WELL
AS ONE SEEKING COMMON-CARRIER AUTHORITY, TO ESTABLISH, AMONG OTHER
THINGS, THAT THERE IS A NEED FOR THE SERVICE PROPOSED WHICH EXISTING
CARRIERS CANNOT OR WILL NOT MEET  ...  .  A SERVICE NOT NEEDED CANNOT
BE FOUND CONSISTENT WITH THE PUBLIC INTEREST OR THE NATIONAL
TRANSPORTATION POLICY."  74 M.C.C. 324, 328 (1958).  THIS STATEMENT IS
PERFECTLY CONSISTENT WITH PLACING THE BURDEN OF PROVING ITS WILLINGNESS
AND ABILITY ON THE PROTESTANT, LEAVING THE APPLICANT TO GO FORWARD WITH
A DEMONSTRATION OF ITS SUPERIOR CAPACITY TO MEET THE TRANSPORTATION
NEEDS OF THE SHIPPER.  (FN10)  ON RECONSIDERATION BY THE FULL
COMMISSION, A STATEMENT OF LIKE PURPORT WAS MADE: WE CANNOT FIND THAT
EXISTING SERVICE HAS BEEN SHOWN TO BE INADEQUATE."  79 M.C.C.  695, 709
(1959). 

THE COURT SEEMS TO HAVE FEARED THAT THE COMMISSION WAS IN FACT
PLACING A FULLER AND IMPERMISSIBLE BURDEN ON APPLICANTS, AND TURNED TO
LATER COMMISSION DISPOSITIONS TO CONFIRM ITS SUSPICIONS.  IN ROY D.
YIENGST COMMON CARRIER APPLICATION, 79 M.C.C. 265, 268 (1959), IT FOUND
A STATEMENT THAT THERE HAD BEEN NO "SHOWING THAT THE EXISTING CARRIERS
ARE UNWILLING OR UNABLE" TO PROVIDE THE SERVICE.  BUT A POSSIBLY
CARELESS PHRASE IS NOT CONCLUSIVE OF WHAT THE PHRASER IS DECIDING.  IF
IT WERE, OUR OWN OPINIONS MIGHT AT TIMES BE USED TO BIND OUR HANDS IN
LATER DECISIONS.  HAD THE DISTRICT COURT LOOKED BEHIND THE WORDS
EMPLOYED IN THE YIENGST DECISION, SUPRA, IT WOULD HAVE DISCOVERED THAT
THEY WERE USED AS A SHORTHAND DESCRIPTION OF A MORE COMPLICATED
ALLOCATION OF THE BURDEN OF PROOF; FOR THE PROTESTANTS THERE HAD COME
FORWARD AND SHOWN THEIR EXPERIENCE AND CAPACITY TO HANDLE THE TRAFFIC,
AND IT WAS THE APPLICANT'S SUBSEQUENT ASSERTION OF ITS SUPERIORITY THAT
WAS CONSIDERED INSUFFICIENT TO OVERCOME THIS SHOWING.  THE SAME THING
WAS TRUE IN CAROLINA HAULERS, INC., CONTRACT CARRIER APPLICATION, 76
M.C.C. 254, 256 (1958), LIKEWISE IMPROPERLY RELIED ON BY THE DISTRICT
COURT. 

WE SHOULD JUDGE A CHALLENGED ORDER OF THE COMMISSION BY "THE REPORT,
READ AS A WHOLE," UNITED STATES V. LOUISIANA, 290 U.S. 70, 80, AND BY
THE RECORD AS A WHOLE OUT OF WHICH THE REPORT AROSE.  WHEN THAT IS DONE
IN THIS CASE, IT BECOMES APPARENT THAT THE COMMISSION DID NOT ASSIGN A
STATUTORILY IMPERMISSIBLE BURDEN OF PROOF TO THE APPLICANT. 

THE COMMISSION'S FINAL REPORT FOUND FROM THE WHOLE RECORD THAT THE
PROTESTING CARRIER WAS IN FACT ABLE AND WILLING TO PERFORM THE PROPOSED
TRANSPORTATION SERVICE IN THE FOLLOWING RESPECTS, EACH OF WHICH IS SET
FORTH EXPLICITLY IN THE REPORT.  (1)  U.S.A.C., THE PROTESTANT, IS A
SPECIALIZED COMMON CARRIER IN THE AIRCRAFT FIELD, WITH APPROXIMATELY 60
PERCENT OF ITS PRESENT TRAFFIC CONSISTING OF FRAGILE PARTS, LIKE THE
LANDING-GEAR BULKHEADS WHOSE TRANSPORTATION IS NEEDED FOR BOEING
AIRPLANE COMPANY, THE SHIPPER.  (2)  U.S.A.C. IS ACCUSTOMED TO
MODIFYING ITS EQUIPMENT TO MEET SPECIFIC NEEDS, AND CAN FASHION ITS
SERVICES TO MEET THE SHIPPER'S PRODUCTION SCHEDULES.  (3)
SPECIFICALLY, AS CONCERNS THIS TRAFFIC, 79 M.C.C., AT 708, 

"U.S.A.C. HOLDS THE OPERATING AUTHORITY NECESSARY TO FURNISH THE
NEEDED SERVICE.  ITS DRIVERS HAVE SECURITY CLEARANCE; IT HAS EQUIPMENT
SUITABLE FOR TRANSPORTING AIRCRAFT ASSEMBLIES, PARTS, AND EQUIPMENT;
AND, IF THE SUPPORTING SHIPPERS WILL FURNISH IT WITH SPECIFICATIONS FOR
THE FIXTURES NECESSARY TO HANDLE THEIR PARTICULAR TRAFFIC, IT WILL
MODIFY AS MANY PIECES OF ITS EQUIPMENT AS IS NECESSARY TO PROVIDE
ADEQUATE SERVICE.  FURTHERMORE, IT IS WILLING TO DEDICATE CERTAIN OF
ITS TRAILERS TO THE EXCLUSIVE USE OF EACH OF THE SHIPPERS." 

IT IS DIFFICULT TO CONCEIVE OF MORE EXPLICIT FINDINGS, OR TO QUARREL
WITH THE COMMISSION'S CONCLUSION FROM THEM THAT "U.S.A.C. IS IN A
POSITION TO PROVIDE ANY SERVICE THAT IS NEEDED  ...  ."  79 M.C.C., AT
707.  THE FINDINGS, MOREOVER, FIND AMPLE SUPPORT IN THE EXTENSIVE AND
DETAILED TESTIMONY OF MR. DECKER, IN CHARGE OF FLEET CONTROL AND
OPERATIONS FOR U.S.A.C.  AFTER THE BURDEN OF PRODUCTION WAS PLACED ON
THE PROTESTANT TO SHOW IN WHAT RESPECTS IT WAS CAPABLE OF HANDLING THE
DISPUTED TRAFFIC, THE COMMISSION SURELY EXCEEDED NO STATUTORY
PROHIBITION IN SHIFTING TO THE APPLICANT THE BURDEN OF PERSUASION OF
ITS SUBSTANTIAL SUPERIORITY. 

(2)  THE DISTRICT COURT WAS PERSUADED, HOWEVER, THAT THE COMMISSION
HAD IMPOSED TOO LENIENT A BURDEN OF PRODUCTION ON THE PROTESTANT, TO
SHOW MERELY THAT "AVAILABLE COMMON-CARRIER SERVICE WAS REASONABLY
ADEQUATE TO MEET THE TRANSPORTATION NEEDS INVOLVED."  79 M.C.C., AT
701.  IT CONCLUDED THAT THE PROPER STANDARD WAS THE ONE ENUNCIATED BY
CONGRESS IN AMENDED SEC. 203(A)(15), OF MEETING THE "DISTINCT NEED" OF
EACH SHIPPER.  AND IT DETERMINED THAT THE COMMISSION HAD NOT EMPLOYED
THAT STANDARD:  "NO CONSIDERATION WAS GIVEN TO THE SPECIAL SERVICES
WHICH IN FACT COULD NOT BE SUPPLIED BY A COMMON CARRIER."  185 F.
SUPP., AT 850.  A REVIEW OF THE REPORT AND THE RECORD, JUDGED BY THE
STATUTE'S REQUIREMENTS, DOES NOT SUSTAIN THIS HOLDING. 

IN THE FIRST PLACE, THE COMMISSION MADE THE PRECISE FINDING REQUIRED
BY THE COURT UNDER SEC. 203(A)(15):  "PLAINLY, THERE IS NO WARRANT ON
THESE RECORDS FOR A FINDING THAT THE SUPPORTING SHIPPERS REQUIRE A
DISTINCT TYPE OF SERVICE THAT CANNOT BE PROVIDED BY U.S.A.C.  TO THE
CONTRARY, THE VERY BUSINESS OF U.S.A.C. IS THE TRANSPORTATION OF THE
TYPE OF TRAFFIC INVOLVED."  79 M.C.C., AT 709.  THIS FINDING WAS ITSELF
A CONCLUSION FROM THE DETAILED ENUMERATION OF U.S.A.C. CAPABILITIES
QUOTED PREVIOUSLY.  AND THERE WAS SUBSTANTIAL EVIDENCE IN THE RECORD TO
SUPPORT THE CONCLUSION THAT THE SHIPPER WOULD BE AS WELL SERVED BY
U.S.A.C.  AS BY THE APPLICANT J-T. 

THE SERVICE PROPOSED BY J-T WAS SPECIALIZED IN THE FOLLOWING
PARTICULARS.  IT HAD DESIGNED A TRAILER EXCLUSIVELY FOR BOEING'S
LANDING-GEAR BULKHEADS AT A COST OF $3,360 WITHIN ABOUT TWO WEEKS.  THE
TRAILER WAS UNDERSLUNG WITH AN ADJUSTABLE FLOOR AND ROOF IN ORDER TO
PERMIT REAR-END LOADING, A FULLY ENCLOSED CARRIER, AND THE HEIGHT
CLEARANCE REQUIRED BY STATE LAW ON THE ROADS IT TRAVELED.  THE TRAILER
WAS SPOTTED AT BOEING'S WICHITA PLANT, AVAILABLE AT ALL TIMES ON SHORT
NOTICE TO LEAVE FOR THE SUPPLIER'S PLANT IN INDIANAPOLIS TO PICK UP
ANOTHER LOAD OF BULKHEADS. 

THE TRAFFIC MANAGER FOR BOEING'S WICHITA PLANT TESTIFIED THAT THE
SHIPPER HAD ENJOYED PARTICULARLY THE CLOSE COORDINATION WITH J-T MADE
POSSIBLE THROUGH ITS NEAR-BY WICHITA TERMINAL.  THE BULKHEADS HAD TO BE
SCHEDULED INTO THE ASSEMBLY OPERATION AT A PREDETERMINED TIME; CONSTANT
ENGINEERING CHANGES NECESSITATED SUPPLY OF PARTICULAR BULKHEADS FOR
PARTICULAR PLANES, AND A DELAY IN TRANSPORTATION COULD PROVE VERY
EXPENSIVE.  THE SHIPPER WAS DISINCLINED TO USE U.S.A.C. BECAUSE IT HAD
NO WICHITA TERMINAL, BECAUSE ITS TARIFFS GAVE IT AUTHORITY TO DECIDE ON
THE TYPE OF EQUIPMENT IT WOULD USE, AND BECAUSE OF AN EXPERIENCE OF
CARELESSNESS IN 1953, ALTHOUGH IT WAS UNCERTAIN WHETHER THIS HAD BEEN
THE FAULT OF U.S.A.C. OR OF THE SHIPPER. 

U.S.A.C. OFFERED EVIDENCE THAT IT MAINTAINED A TERMINAL IN
INDIANAPOLIS AND ONE IN TOPEKA, KANSAS, WHICH COULD COVER SHIPMENTS
FROM WICHITA.  U.S.A.C. WOULD BE WILLING TO MODIFY ITS CANVAS-TOPPED
TRAILER TO INSTALL NECESSARY FIXTURES AND A REMOVABLE OR ELEVATABLE
ROOF AS NEEDED.  THE ROOF WOULD TAKE THREE DAYS TO INSTALL, THE
NECESSARY FIXTURES TEN DAYS TO TWO WEEKS.  ITS TARIFF POWER TO CONTROL
EQUIPMENT WAS USED ONLY TO PREVENT OVERLOADING.  (FN11)  IT WAS WILLING
TO DEDICATE THE NECESSARY EQUIPMENT EXCLUSIVELY TO THE SHIPPER. 

FROM THIS EVIDENCE IT WAS CERTAINLY OPEN TO THE COMMISSION TO FIND,
AS IT DID, THAT U.S.A.C. COULD MEET THE "DISTINCT NEED" OF THE
SHIPPER.  THE TARIFF POWER WAS NO OBSTACLE.  AN AMBIGUOUS AND ANCIENT
COMPLAINT ABOUT SERVICE NEED NOT CONTROL.  THE ABSENCE OF A WICHITA
TERMINAL COULD BE OFFSET, IF NEED BE, BY THE PRESENCE OF AN
INDIANAPOLIS TERMINAL:  THE TRAFFIC HAD THUS FAR BEEN ENTIRELY ONE WAY,
FROM INDIANAPOLIS TO WICHITA, AND NO REASON WAS GIVEN WHY TELEPHONIC
CONSULTATION WITH INDIANAPOLIS, REACHING THE SUPPLIER AND THE CARRIER
IN THE SAME PLACE, MIGHT NOT BE AS EFFICIENT OR MORE SO.  MOREOVER, THE
SHIPPER ON THREE OCCASIONS GAVE EVIDENCE THAT ITS PREFERENCE FOR J-T
WAS IN ACTUALITY BASED ON A MISUNDERSTANDING OF COMMON-CARRIER
AUTHORITY THAT THE COMMISSION WAS UNDER NO OBLIGATION TO CREDIT. 
(FN12)    BUT THIS DOES NOT MEAN THAT, AS A STATUTORY MATTER, THE
COMMISSION WAS REQUIRED TO FIND THAT THE PROTESTANT COULD MEET THE
"DISTINCT NEED" OF THE SHIPPER.  THAT PHRASE WAS INSERTED IN SEC.
203(A)(15) TO RESTRICT THE DEFINITION OF A CONTRACT CARRIER, NOT TO
LIMIT THE OPPORTUNITIES OF A COMMON CARRIER.  IT SHOULD BE NOTED THAT A
CONTRACT CARRIER MAY SO QUALIFY UNDER THAT SECTION EITHER BY MEETING
THE DISTINCT NEED OF A PARTICULAR CUSTOMER OR BY MEETING VERY ORDINARY
NEEDS THROUGH THE ASSIGNMENT OF VEHICLES TO THE SHIPPER'S EXCLUSIVE
USE.  IF THE LATTER QUALIFICATION WERE CONTROLLING IN A GIVEN CASE, THE
CONSIDERATION OF "DISTINCT NEED" WOULD BE IRRELEVANT. 

BEYOND THIS PARSING OF SEC. 203(A)(15), MOREOVER, THERE IS REASON IN
POLICY FOR THE COMMISSION TO DENY AN APPLICATION WHEN THE PROTESTANT IS
ABLE TO FURNISH "REASONABLY ADEQUATE" SERVICES.  THE MOTOR CARRIER ACT
EXPRESSES A POLICY, AS WE HAVE SEEN, OF PRESERVING EXISTING COMMON
CARRIAGE AGAINST THE INROADS OF CONTRACT CARRIAGE.  ONE WAY OF PUTTING
THAT POLICY INTO EFFECT IS TO DENY A CONTRACT-CARRIER APPLICATION, AS
THE COMMISSION HAS ALWAYS DONE, UNLESS THE APPLICANT CAN DEMONSTRATE
THAT ITS SERVICE WILL BE SUBSTANTIALLY SUPERIOR TO THAT AFFORDED BY
EXISTING CARRIERS.  ANOTHER WAY OF DESCRIBING THIS PRACTICE, WHICH THE
1957 AMENDMENTS HAVE IN NO WAY AFFECTED, IS THAT NO PERMIT WILL ISSUE
FOR TRAFFIC THAT CAN BE HANDLED WITH REASONABLE ADEQUACY BY A
PROTESTANT. 

(3)  THE DISTRICT COURT WAS MOST EMPHATIC IN ITS CONCLUSION THAT THE
COMMISSION HAD ERRED IN ITS RESOLUTION OF THE THIRD FACTOR IN SEC.
209(B) - "THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE
SERVICES OF THE PROTESTING CARRIERS" - BY THE AID OF AN UNWARRANTED
PRESUMPTION.  THE RELEVANT LANGUAGE OF THE FINAL REPORT IS AS FOLLOWS: 

"THE QUESTION PRESENTED  ...  IS HOW WE ARE TO DETERMINE WHETHER A
GRANT OF AUTHORITY WILL ADVERSELY AFFECT THE SERVICE OF A PROTESTANT. 
IT MIGHT BE ARGUED THAT WHERE, AS HERE, A PROTESTANT IS NOT NOW
ENJOYING THE INVOLVED TRAFFIC, IT CANNOT BE ADVERSELY AFFECTED BY A
GRANT OF AUTHORITY.  HOWEVER, WE BELIEVE THAT OUR PAST HOLDINGS THAT
EXISTING CARRIERS ARE ENTITLED TO TRANSPORT ALL THE TRAFFIC WHICH THEY
CAN ECONOMICALLY AND EFFICIENTLY HANDLE BEFORE ADDITIONAL AUTHORITY IS
GRANTED ARE EQUALLY VALID TODAY AS THEY WERE PRIOR TO THE 1957
AMENDMENTS TO THE ACT.  THERE IS, IN EFFECT, A PRESUMPTION THAT THE
SERVICES OF EXISTING CARRIERS WILL BE ADVERSELY AFFECTED BY A LOSS OF
'POTENTIAL' TRAFFIC, EVEN IF THEY MAY NOT HAVE HANDLED IT BEFORE."  79
M.C.C., AT 705. 

HOW THE DISTRICT COURT COULD BE CONFIDENT THAT THE COMMISSION WAS
BLINDLY APPLYING WHAT IT ITSELF CALLED ONLY "IN EFFECT" A PRESUMPTION,
IN THE FACE OF DETAILED FINDINGS THAT THE TRAFFIC WAS ONE THAT THE
PROTESTANT "CAN ECONOMICALLY AND EFFICIENTLY HANDLE," IT DID NOT
EXPLAIN.  DOUBTLESS IF THE COMMISSION HAD ERECTED A PRESUMPTION OF
ADVERSE EFFECT FROM EVIDENCE SIMPLY THAT THE PROTESTANT POSSESSED
AUTHORITY IN ITS CERTIFICATE TO CARRY THAT TRAFFIC, ITS ACTION WOULD
HAVE BEEN INCONSISTENT WITH CONGRESSIONAL DELETION OF THE WORDS "NOT
PROVIDED BY COMMON CARRIERS" FROM THE AMENDMENT TO SEC. 203(A)(15). 
BUT, AS WE HAVE SEEN, THAT IS PLAINLY NOT WHAT THE COMMISSION DID. 

THE COURT WENT FURTHER, HOWEVER, AND DETERMINED THAT EVIDENCE OF THE
PROTESTANT'S WILLINGNESS AND ABILITY WAS BY ITSELF INSUFFICIENT TO
SUPPORT THE REQUISITE FINDING OF AN ADVERSE EFFECT.  "WHERE ...  THE
PROTESTING CARRIER IS NOT PARTICIPATING IN THE TRAFFIC INVOLVED, THERE
CAN BE NO DIVERSION OF TRAFFIC AND HENCE ORDINARILY THERE WOULD BE NO
ADVERSE EFFECT ON THE SERVICES OF THE PROTESTING CARRIER."  185 F.
SUPP., AT 848.  IT IS SOMEWHAT DIFFICULT TO KNOW BY WHAT EXPERT INSIGHT
THE DISTRICT COURT ACHIEVED THIS CONCLUSION, AT VARIANCE WITH THE
COMMISSION'S DELIBERATE AND CONSIDERED CONTRARY RESOLUTION OF THE SAME
ISSUE.  APPARENTLY THE COURT THOUGHT THAT THE SHIPPER'S EXPRESSED
PREFERENCE FOR THE APPLICANT HAD TO BE TAKEN INTO CONSIDERATION IN
DETERMINING WHETHER THE PROTESTANT WOULD BE INJURED BY A GRANT OF THE
PERMIT.  EVEN IF THIS WERE A PROPER READING OF THE STATUTE, IT WOULD
NOT JUSTIFY THE DISTRICT COURT'S CONCLUSION.  FOR THE RECORD SHOWS THAT
WHEN THE SHIPPER WAS ASKED WHOSE SERVICES IT WOULD USE IF THE PERMIT
WERE DENIED, IT REPLIED THAT IT DID NOT KNOW. 

BUT IT IS PLAINLY AN IMPROPER READING OF THE STATUTE.  THE COMMISSION
HAS INVARIABLY HELD THAT THE PREFERENCE OF A SHIPPER FOR A PARTICULAR
CARRIER, EVEN THOUGH BASED ON SOUND BUSINESS REASONS, IS NOT ENOUGH TO
WARRANT ISSUANCE OF A PERMIT.  THIS PRACTICE IS UNAFFECTED BY THE 1957
AMENDMENTS.  WE HAVE OURSELVES UNANIMOUSLY HELD, SINCE THOSE AMENDMENTS
WENT INTO EFFECT, THAT LEGALLY COGNIZABLE INJURY MIGHT ACCRUE TO AN
EXISTING CARRIER DENIED POTENTIAL TRAFFIC. 

"SURELY THE STATEMENT BY GENERAL MOTORS (THE SHIPPER) THAT IT WOULD
NOT IN ANY EVENT GIVE THE BUSINESS TO ANY APPELLANT CANNOT DEPRIVE
APPELLANTS OF STANDING.  THE INTERESTS OF THESE INDEPENDENTS CANNOT BE
PLACED IN THE HANDS OF A SHIPPER TO DO WITH AS IT SEES FIT THROUGH
PREDICTIONS AS TO WHOM ITS BUSINESS WILL OR WILL NOT GO  ...  .  WE
CONCLUDE, THEN, THAT APPELLANTS HAD STANDING TO MAINTAIN THEIR ACTION
TO SET ASIDE THE COMMISSION'S ORDER UNDER THE 'PARTY IN INTEREST'
CRITERION OF SEC. 205(G) OF THE INTERSTATE COMMERCE ACT,  ...  AND
UNDER THE 'PERSON SUFFERING LEGAL WRONG  ...  OR ADVERSELY AFFECTED OR
AGGRIEVED' CRITERION OF SEC. 10(A) OF THE ADMINISTRATIVE PROCEDURE ACT
...  ."  AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 364 U.S. 1, 18. 

IF A PROTESTANT MAY BE "ADVERSELY AFFECTED" DESPITE SHIPPER HOSTILITY
FOR PURPOSES OF SEEKING JUDICIAL REVIEW, IT SEEMS CONSISTENT TO PERMIT
THE COMMISSION TO FIND IT SO FOR PURPOSES OF RULING UPON AN APPLICATION
UNDER SEC. 209(B). 

THERE IS PERSUASIVE LEGISLATIVE HISTORY TO THE SAME EFFECT.  THE
AMENDMENTS TO S. 1384 PROPOSED IN THE SENATE HEARINGS BY THE CONTRACT
CARRIER CONFERENCE, WHICH WERE SUBSTANTIALLY ADOPTED AS THE CRITERIA IN
SEC. 209(B), WOULD HAVE ERECTED A PRESUMPTION IN FAVOR OF A CONTRACT
CARRIER APPLICANT WHEN THE SHIPPER HAD PREVIOUSLY BEEN USING PRIVATE
CARRIAGE.  SENATE HEARINGS 305.  THIS PROVISION WAS SUPPORTED ON THE
GROUND THAT NO ADVERSE EFFECT WOULD NORMALLY BE VISITED ON A PROTESTANT
WHEN THE SHIPPER HAD SO DEMONSTRATED ITS ANTIPATHY TO COMMON CARRIAGE. 
IT WAS DELETED BY THE SUBCOMMITTEE.  THUS, IF WE ARE TO PLACE EMPHASIS
ON CONGRESSIONAL REJECTIONS, WE MUST TAKE THIS DELETION AS SIGNIFICANT
THAT SHIPPERS' DESIRES ARE NOT TO BE CONTROLLING. 

BUT WE NEED NOT RELY ON THIS EPISODE TO PROVE THE POINT.  THE WHOLE
SCHEME OF STATUTORY REGULATION POINTS THE SAME WAY.  FOR WE MUST
REMEMBER THAT CONGRESS HAS CHOSEN IN THE MOTOR CARRIER ACT TO REGULATE
MOTOR TRANSPORTATION NOT BY THE FORCES OF COMPETITION BUT BY IMPARTIAL
ADMINISTRATION THROUGH AN EXPERT BODY.  NO DOUBT CONTRACT CARRIAGE IS
FREQUENTLY PREFERRED BY SHIPPERS FOR THE ADVANTAGES, CHIEFLY IN
FLEXIBILIBY OF OPERATIONS, THAT IT MAY HOLD OVER AVAILABLE COMMON
CARRIAGE.  BUT THE NATIONAL INTEREST TO BE SAFEGUARDED UNDER THE
NATIONAL TRANSPORTATION POLICY IS ENTRUSTED TO THE I.C.C. AND NOT TO
THE SELF-INTEREST OF SHIPPERS.  SO LONG AS THE COMMISSION DOES NOT
BEHAVE ARBITRARILY, DOES NOT REJECT THE OFFER OF RELEVANT TESTIMONY OR
REFUSE TO "CONSIDER" SOME FACTOR THAT CONGRESS HAS COMMANDED TO BE
TAKEN INTO ACCOUNT, THE WEIGHT OR VALUE ACCORDED THE VARIOUS FACTORS
AND THE COMMISSION'S EVALUATION OF THE COMPARATIVE NEEDS OF SHIPPER,
APPLICANT, AND PROTESTANT IN A PARTICULAR SITUATION ARE CONCLUSIVE. 

A CAREFUL READING OF THE REPORT AND RECORD DEMONSTRATES THE UNWISDOM
OF OVERTURNING THE COMMISSION'S EXERCISE OF ITS REGULATORY FUNCTIONS
UPON MERELY APPARENT SURFACE IMPROPRIETIES.  FOR THE COMMISSION FOUND
AS A FACT THAT THE PROTESTANT NEEDED THE PROPOSED TRAFFIC; THAT
U.S.A.C.'S: 

"ABILITY TO OBTAIN BUSINESS DEPENDS ON ITS ABILITY TO SATISFY THE
NEEDS OF THE SHIPPERS HAVING TRANSPORTATION REQUIREMENTS SIMILAR TO
THOSE OF THESE SUPPORTING SHIPPERS, AND IT IS DEPENDENT UPON THE VERY
KIND OF TRAFFIC THAT IS HERE CONSIDERED FOR THE CONTINUANCE OF ITS
OPERATIONS."  79 M.C.C., AT 708. 

THIS IS THE CONTENT OF THE "PRESUMPTION" THAT FLOWS FROM A
PROTESTANT'S SHOWING OF ITS WILLINGNESS AND ABILITY:  A DECIDEDLY
ADVERSE EFFECT FROM A LOSS OF "POTENTIAL" TRAFFIC.  AND THE FINDING
RESTED ON A SUBSTANTIAL ARRAY OF RECORD FACTS.  U.S.A.C. HAD
DEMONSTRATED ITS NEEDS BY ACTUALLY SOLICITING BOEING FOR THE TRAFFIC,
FAR IN ADVANCE OF THIS PROCEEDING.  ITS RECORD OF RECENT "DEADHEADS,"
OR EMPTY TRAILERS, LEAVING INDIANAPOLIS WAS IMPRESSIVE: IN MARCH OF
1957, 92 DEADHEADS AS AGAINST 61 FULL LOADS; IN APRIL, 85 AGAINST 60. 
A SIMILAR EMPTY-EQUIPMENT PROBLEM EXISTED IN WICHITA.  AIRCRAFT-PARTS
TRANSPORTATION IN GENERAL HAD RECENTLY DECREASED.  THE PROBLEM WAS ONE
OF AIRCRAFT OBSOLESCENCE, MAKING THE BUSINESS SPOTTY, WITH RECURRENT
HIGHS AND LOWS.  U.S.A.C. HAD BEEN ENGAGED IN THE PROGRAMS FOR THE
BUILDING OF F-184'S, B-47'S, AND B-36'S.  EACH HAD ENDED. 

SURELY IT WOULD HAVE BEEN PERMISSIBLE FOR THE COMMISSION, CHARGED AS
IT IS WITH PRESERVING TRANSPORTATION FOR THE NATIONAL DEFENSE, TO
CONCLUDE THAT THE NATIONAL INTEREST LAY IN SEEKING TO KEEP U.S.A.C.'S
EXCESS CAPACITY PROFITABLY EMPLOYED AND AVAILABLE FOR FUTURE DEFENSE
NEEDS.  THE FACT THAT THE COMMISSION DID NOT ADVERT EXPRESSLY TO
DEFENSE NEEDS IN ITS REPORT DOES NOT AFFECT THE ILLUSTRATION THIS
EVIDENCE AFFORDS OF THE WAY IN WHICH A PRESUMPTION OF ADVERSITY MAY
REASONABLY BE DRAWN FROM EVIDENCE OF A PROTESTANT'S DESIRE AND CAPACITY
FOR TRAFFIC. 

VII. 

THE APPROPRIATE RELATION BETWEEN THE COMMISSION AND THE COURTS WAS
DELINEATED IN OUR TREATMENT OF THE CLOSELY PARALLEL PROBLEM IN
SECRETARY OF AGRICULTURE V. CENTRAL ROIG REF. CO., 338 U.S. 604.  THE
SUGAR ACT OF 1948, SEC. 205(A), AUTHORIZED THE SECRETARY TO ALLOCATE
MARKETING QUOTAS AMONG PARTICULAR REFINERIES "IN SUCH AMOUNTS AS TO
PROVIDE A FAIR, EFFICIENT, AND EQUITABLE DISTRIBUTION" (COMPARE
"CONSISTENT WITH THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION
POLICY"), AND DIRECTED HIM TO DO SO "BY TAKING INTO CONSIDERATION"
THREE FACTORS - ONE RELATED TO PROCESSING OF RAW SUGAR FROM SUGAR CANE,
WHICH THE SECRETARY DECIDED WAS INAPPLICABLE, AND THE OTHER TWO PAST
MARKETINGS AND FUTURE MARKETING CAPACITY.  THE SECRETARY APPLIED THESE
TWO BY GIVING THEM EQUAL WEIGHT AND REFERRING THEM TO A PRE-WORLD WAR
II BASE PERIOD SELECTED AS ONE UNAFFECTED BY SPECIAL WARTIME DEMANDS. 
THE RESULTING ALLOCATION ORDER WAS ATTACKED AS EXCEEDING STATUTORY
AUTHORITY AND WAS SET ASIDE BY THE COURT OF APPEALS.  THIS COURT
REVERSED, HOLDING THAT THE SECRETARY HAD NOT EXCEEDED THE DISCRETION
NECESSARILY VESTED IN HIM BY THE SUGAR-QUOTA SCHEME.  WE NOTED THAT A
DIRECTION TO "CONSIDER" CERTAIN FACTORS DID NOT CONTROL THE SECRETARY'S
JUDGMENT AS TO WHAT WEIGHT SHOULD BE ASSIGNED TO EACH OR WHETHER TO
GIVE WEIGHT TO ALL THREE IN EACH SITUATION.  WE CONCLUDED THAT SO LONG
AS THE SECRETARY WAS NOT ARBITRARY IN HIS CHOICE OF MEANS TO REACH AN
EQUITABLE DISTRIBUTION, HIS DECISION SHOULD STAND. 

IT IS A COMMONPLACE OF ADMINISTRATIVE LAW THAT THE EVALUATION TO BE
GIVEN CRITERIAL FINDINGS, IF ADEQUATELY SUPPORTED, IS LEFT ESSENTIALLY
TO THE ADMINISTRATIVE AGENCY CHARGED WITH PRIMARY RESPONSIBLIITY FOR
INTERPRETING THE WILL OF CONGRESS.  THE EXTENT TO WHICH THIS IS SO WILL
BE MISCONCEIVED IF DRAWN FROM ABSTRACT CONCEPTIONS OF "FACT," "LAW," OR
"LAW-APPLICATION."  FOR ONE THING, THE PERMISSIBLE SCOPE OF
ADMINISTRATIVE DISCRETION MAY VARY FROM SECTION TO SECTION WITHIN A
SINGLE STATUTE.  FOR ANOTHER, THE TASK OF EXERCISING AN INFORMED
DISCRETION IN ADMINISTRATIVE PROCEEDINGS EXTENDS FROM TESTIMONIAL
SUBMISSIONS THROUGH CONSIDERATIONS OF REGULATORY POLICY TO OBEDIENCE OF
A STATUTORY COMMAND.  IT IS A QUESTION OF POLICY, DERIVED FROM DUE
REGARD FOR, AND BASED ON UNDERSTANDING OF, THE REGULATORY SCHEME
ENACTED BY CONGRESS, AT WHICH POINT A REVIEWING COURT SHOULD
INTERVENE.  A CONCLUSION THAT THE AGENCY'S DETERMINATION, RESTING ON
FINDINGS (WHERE, AS IS NORMALLY TRUE, THEY ARE REQUIRED) APPROPRIATELY
SUPPORTED BY EVIDENCE, IS WITHIN ITS POWER TO MAKE IS A CONCLUSION THAT
THE FACTORS CALLING FOR INTERVENTION ARE ABSENT.  COMPARE INTERSTATE
COMMERCE COMMISSION V. UNION PACIFIC R. CO., 222 U.S. 541, 547-548. 

ADMINISTRATIVE AGENCIES ARE NOT ONLY VESTED WITH DISCRETION IN
SIFTING EVIDENCE AND IN MAKING FINDINGS BUT MAY ALSO DRAW ON THEIR
SPECIALIZED COMPETENCE FOR ASCERTAINING THE REACH AND MEANING OF
STATUTORY LANGUAGE.  COMPARE SOCIAL SECURITY BOARD V. NIEROTKO, 327
U.S. 358, 368-371, WITH LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S.
111, 128-131.  THE FACTORS TO BE CONSIDERED ON JUDICIAL REVIEW OF SUCH
AN ADMINISTRATIVE DETERMINATION INCLUDE THE PRECISION OF THE STATUTORY
LANGUAGE, THE TECHNICAL COMPLEXITY OF THE RELEVANT ISSUES, THE NEED FOR
CERTAINTY AS AGAINST EXPERIMENTATION, AND THE LIKELIHOOD THAT CONGRESS
FORESAW THE PRECISE QUESTION AT ISSUE AND DESIRED TO EXPRESS A
FORECLOSING JUDGMENT ON IT.  IN ASSESSING THESE FACTORS, WE ARE GUIDED
PRIMARILY BY AN INVESTIGATION OF THE PRIOR LAW AS IT SHEDS LIGHT ON THE
"MISCHIEF" CONGRESS SOUGHT TO ALLEVIATE, AND OF THE STATUTE ITSELF TO
SEE HOW CLOSELY CONGRESS SOUGHT TO DEFINE THE BALANCE OF COMPETING
CONSIDERATIONS IT ADDRESSED.    THAT INVESTIGATION HERE REVEALS THAT
CONGRESS CONFERRED THE POWER ON THE COMMISSION TO DECIDE AS IT HAS DONE
IN THIS CASE.  NONE OF THE PRECEDENTS IS TO THE CONTRARY; EACH POINTS
TO THIS CONCLUSION.  SEE UNITED STATES V. PIERCE AUTO LINES, 327 U.S.
515, 535-536 (NOT FOR COURTS TO GAUGE PUBLIC INTEREST; SO LONG AS
REQUISITE FINDINGS ARE MADE AND SUPPORTED BY EVIDENCE, THE RESOLUTION
OF RELEVANT FACTORS IS FOR THE COMMISSION); BASS V. UNITED STATES, 163
F. SUPP. 1, 4 (W.D. VA. 1958), AFF'D PER CURIAM, 358 U.S. 333 (SAME);
CF. UNITED STATES V. DETROIT & CLEVELAND NAV. CO., 326 U.S. 236, 240
241.  IN SCHAFFER TRANSP.  CO. V. UNITED STATES, 355 U.S. 83, 86 N. 3,
90, THE COURT DELIBERATELY REFRAINED FROM GUIDING THE COMMISSION'S
DISCRETION IN EVALUATING THE RELATIVE ADVANTAGES OF COMPETING
CARRIERS.  (FN13) 

DETERMINATIONS BY THE COMMISSION WHICH CONGRESS HAS COMMITTED TO ITS
JUDGMENT MUST BE JUDICIALLY RESPECTED BECAUSE SUCH EXERCISES OF
ADMINISTRATIVE DISCRETION ARE BEYOND THE COMPETENCE OR JURISDICTION OF
COURTS.  THEIR POWER OF REVIEW IS CONFINED TO CORRECTION OF COMMISSION
ACTION THAT TRANSCENDS THE AUTHORITY GIVEN IT BY CONGRESS, INCLUDING OF
COURSE DISREGARD BY THE COMMISSION OF PROCEDURAL PROPRIETIES RESULTING
IN ARBITRARY USE OF ITS POWERS. 

IN THE PRESENT CASE, NO CLAIM CAN BE MADE THAT THE COMMISSION'S
FINDINGS ARE UNSUPPORTED BY SUBSTANTIAL EVIDENCE.  UNITED STATES V. PAN
AMERICAN CORP., 304 U.S. 156, 158; CF. UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474; SEE ADMINISTRATIVE PROCEDURE ACT, SEC.  10(E), 60
STAT. 237, 243 (1946), 5 U.S.C. SEC. 1009(E).  THE COMMISSION'S
DETAILED REPORT NEGATIVES THIS, AS IT WOULD A CLAIM THAT THE COMMISSION
NEGLECTED TO MAKE REQUISITE FINDINGS. 

OF COURSE THE PROVISIONS OF THE NATIONAL TRANSPORTATION POLICY MUST
BE APPLIED BY THE COMMISSION TO EACH APPLICATION, SEE SCHAFFER TRANSP. 
CO. V. UNITED STATES, 355 U.S. 83, 88, BUT THEY "REPRESENT, AT BEST, A
COMPROMISE BETWEEN STABILITY AND FLEXIBILITY OF INDUSTRY CONDITIONS,
EACH ALLEGED TO BE IN THE NATIONAL INTEREST, AND WE CAN ONLY LOOK TO
SEE IF THE COMMISSION HAS APPLIED ITS FAMILIARITY WITH TRANSPORTATION
PROBLEMS TO THESE CONFLICTING CONSIDERATIONS."  AMERICAN TRUCKING
ASSNS.  V. UNITED STATES, 344 U.S. 298, 314; SEE INTERSTATE COMMERCE
COMMISSION V. PARKER, 326 U.S. 60, 66.  THE COMMISSION'S ACTION HERE
CERTAINLY DOES NOT FALL SHORT OF THAT STANDARD.  SEE 79 M.C.C., AT 705
706. 

AN ORDER OF THE COMMISSION CANNOT STAND, IT IS TRUE, IF WE CANNOT
TELL WHAT HAS BEEN DECIDED OR IF IT LEAVES UNCLEAR THE BASIS FOR ITS
CONCLUSIONS.  UNITED STATES V. CHICAGO, M., ST. P.&P.R. CO., 294 U.S.
499, 510-511.  FINDINGS ARE NO DOUBT JUDICIALLY MORE PERSUASIVE THE
MORE FELICITOUSLY THEY ARE FORMULATED AND THE LESS THEY REQUIRE
EXTRACTION FROM A DIFFUSE REPORT.  BUT THE COMMISSION IS NOT UNDER
STATUTORY DUTY TO SET FORTH ITS FINDINGS IN SERRIED ARRAY.  IT IS THE
COURT'S DUTY TO SUSTAIN THE COMMISSION'S FINDINGS IF, AS HERE, THERE IS
NO REAL DIFFICULTY IN DETERMINING WHAT WAS DECIDED AND ON WHAT
GROUNDS. 

IT IS NOT THE COURT'S FUNCTION TO IMPOSE OUR STANDARDS OF LUCIDITY OR
ELEGANCE IN EXPOSITION UPON THE COMMISSION.  AND WE SHOULD TAKE DUE
WARNING FROM THE CONSEQUENCES OF OUR DECISION IN CITY OF YONKERS V.
UNITED STATES, 320 U.S. 685, OF WHAT MAY FOLLOW FROM EXACTING OVERNICE
REQUIREMENTS OF THE I.C.C.  THERE THE COMMISSION HAD MADE NO EXPLICIT
FINDING THAT AN ELECTRIC INTERURBAN RAILWAY WAS AN INTEGRAL PART OF A
STEAM RAILROAD SYSTEM AS IT HAD TO BE BEFORE THE COMMISSION COULD ALLOW
IT TO SUSPEND ITS OPERATIONS.  THE FACTS WERE SO CLEARLY SPREAD UPON
THE RECORD THAT THE POINT WAS NOT ARGUED UNTIL ONE OF THE PARTIES
RAISED IT ON APPEAL.  THIS COURT REMANDED THE CASE FOR AN EXPRESS
FINDING.  THE COMMISSION TOOK SOME MORE EVIDENCE AND IN DUE COURSE IT
ENTERED THE INEVITABLE FINDING.  THE ORDER WAS ATTACKED AGAIN IN THE
DISTRICT COURT, AFFIRMED AGAIN AFTER ANOTHER LENGTHY OPINION, AND
EVENTUALLY AFFIRMED PER CURIAM, 323 U.S. 675.  THAT WASTEFUL CHARADE
OUGHT NOT TO BE REPEATED HERE. 

I WOULD REVERSE AND ALLOW THE COMMISSION'S ORDER TO STAND. 

FN1  THE COMMISSION HAS CLASSIFIED MOTOR CARRIAGE BY 17 TYPES OF
COMMODITIES, AND EACH ONE ADMITS OF COMMON OR CONTRACT CARRIAGE.  49
CFR SEC. 165.2 (1961). 

FN2  54 STAT. 898, 920 (1940). 

FN3  THE NATIONAL TRANSPORTATION POLICY, ADDED BY 54 STAT. 898, 899
(1940), 49 U.S.C.  PRECEDING SEC. 301, PROVIDES IN RELEVANT PART:  "IT
IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF THE
CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES OF
TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO ADMINISTERED
AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF EACH; TO
PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND FOSTER
SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL
CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF REASONABLE
CHARGES  ...  WITHOUT  ...  UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES
...   - ALL TO THE END OF DEVELOPING  ...  A NATIONAL TRANSPORTATION
SYSTEM  ... ADEQUATE TO MEET THE NEEDS OF THE COMMERCE OF THE UNITED
STATES, OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE.  ALL OF THE
PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW
TO CARRYING OUT THE ABOVE DECLARATION OF POLICY." 

FN4  SENATOR TRUMAN, A SENATE CONFEREE, SAID IN PRESENTING THE BILL: 

"SECTION 203, PARAGRAPHS (14) AND (15), HAVE BEEN REWRITTEN FOR THE
SOLE PURPOSE OF ELIMINATING CARRIERS PERFORMING PICK-UP, DELIVERY, AND
TRANSFER SERVICE.  THIS CHANGE WAS SUGGESTED BY THE CHAIRMAN OF THE
INTERSTATE COMMERCE COMMISSION. 

"THE CONFEREES WISH TO MAKE IT PLAIN THAT IT IS NOT THEIR INTENTION,
BY CHANGING THE LANGUAGE OF PARAGRAPHS (14) AND (15) OF SECTION 203 TO
CHANGE THE LEGISLATIVE INTENT OF THE CONGRESS ONE IOTA WITH RESPECT TO
DEFINITION OF COMMON AND CONTRACT CARRIERS OTHER THAN THOSE PERFORMING
PICK-UP, DELIVERY, AND TRANSFER SERVICE.  IT IS INTENDED THAT ALL OVER
THE-ROAD TRUCKERS SHALL WHENEVER POSSIBLE FALL WITHIN THE DESCRIPTION
OF COMMON CARRIERS. 

"IT IS INTENDED BY THE DEFINITION OF CONTRACT CARRIERS TO LIMIT THAT
GROUP  ...  ."  86 CONG. REC. 11546 (1940). 

FN5  BRACKETED NUMBERS ADDED FOR CONVENIENT REFERENCE.  ONLY THE
THIRD FACTOR AND SO MUCH OF THE FOURTH AS IS ITALICIZED ARE IN ISSUE
HERE.  THE COMMISSION CONSIDERED THE OTHERS, AND NO CHALLENGE IS MADE
TO ITS DISPOSITION OF THEM. 

FN6  SECTION 209(B) THEN EXCLUDED FROM THE LIMITATIONS THE COMMISSION
COULD IMPOSE, "THE RIGHT OF THE CARRIER TO SUBSTITUTE OR ADD CONTRACTS
WITHIN THE SCOPE OF THE PERMIT."  AS AMENDED AFTER CONTRACT STEEL, 71
STAT. 411, 412 (1957), THE SECTION EMPOWERS THE COMMISSION TO ATTACH
"TERMS, CONDITIONS AND LIMITATIONS RESPECTING THE PERSON OR PERSONS AND
THE NUMBER OR CLASS THEREOF FOR WHICH THE CONTRACT CARRIER MAY PERFORM
TRANSPORTATION SERVICE, AS MAY BE NECESSARY TO ASSURE THAT THE BUSINESS
IS THAT OF A CONTRACT CARRIER AND WITHIN THE SCOPE OF THE PERMIT  ...
." 

FN7  SURFACE TRANSPORTATION - SCOPE OF AUTHORITY OF I.C.C. - HEARINGS
BEFORE THE SUBCOMMITTEE ON SURFACE TRANSPORTATION OF THE SENATE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 85TH CONG., 1ST SESS. 23
(1957)(HEREINAFTER CITED AS SENATE HEARINGS). 

FN8  S. 1384 IS PRINTED AT SENATE HEARINGS 6. 

FN9  THE ONLY OTHER LIGHT SHED ON THE SIGNIFICANCE OF THE DELETIONS
IS FURNISHED IN A COLLOQUY IN THE COURSE OF THE HEARINGS: 

"SENATOR SCHOEPPEL.  I WOULD LIKE TO ASK A QUESTION RIGHT THERE:
SUPPOSING YOU HAD A COMMON CARRIER SERVING CERTAIN TERRITORY BUT WASN'T
FURNISHING ADEQUATE SERVICE.  THERE WAS COMMON CARRIER SERVICE THERE,
BUT OF A VERY LIMITED NATURE, AND WITH THE MODE AND EXTENT OF DOING
BUSINESS NOWADAYS WOULD YOU DRAW THE LINE THERE THAT THE COMMON CARRIER
HAD TO FURNISH REASONABLY ADEQUATE AND PROMPT SERVICE?" 

"MR. ROTHSCHILD (FROM THE DEPARTMENT OF COMMERCE, DEFERRED SPECIFIC
ANSWER AND THEN REPLIED).  THEY SHOULD NOT BE ABLE TO DENY THE
APPLICATION OF A COMMON CARRIER SIMPLY BECAUSE SOMEONE CLAIMS THAT
THERE IS COMMON CARRIER SERVICE THERE."  SENATE HEARINGS 200-201, 203. 

WHAT WEIGHT, IF ANY, SHOULD BE ACCORDED THIS EXPLORATORY SPECULATION
BETWEEN A SINGLE SUBCOMMITTEE MEMBER AND A REPRESENTATIVE OF A
GOVERNMENT DEPARTMENT HAVING NO INTIMATE FAMILIARITY WITH PRIOR
ADMINISTRATIVE PRACTICE, IS PROBLEMATICAL.  EVEN GIVING IT THE FULLEST
SIGNIFICANCE IT CAN BEAR, HOWEVER, THE MOST THAT EMERGES IS THIS:  WHEN
A CONTRACT CARRIER APPLIES FOR A PERMIT, IT IS NOT ENOUGH FOR A
PROTESTANT TO SHOW THAT IT HAS AUTHORITY TO TRANSPORT THE PROPOSED
TRAFFIC.  IT MUST SHOW ALSO THAT IT HAS THE CAPACITY AND WILLINGNESS TO
DO SO, AND THE COMMISSION MUST BE SATISFIED FROM ALL THE EVIDENCE THAT,
IN SENATOR SCHOEPPEL'S WORDS, THE SERVICE IT CAN PERFORM IS "REASONABLY
ADEQUATE" TO MEET THE SHIPPER'S NEEDS.  BUT THIS, IT WILL BE SEEN, IS
PRECISELY THE PROCEDURE THAT THE COMMISSION HAD INVARIABLY FOLLOWED
FROM 1935 TO 1957. 

FN10  THE STATEMENT MAY BE DEEMED LACKING IN DETAIL IN NOT EXPLICITLY
CONSIDERING THE FIVE CRITERIA IN SEC. 209(B), WHICH BECAME EFFECTIVE IN
ITS AMENDED FORM ON AUGUST 22, 1957, AFTER THE APPLICATION HAD BEEN
HEARD BUT BEFORE DIVISION 1'S ORDER WAS ISSUED.  SEE ZIFFRIN, INC., V.
UNITED STATES, 318 U.S. 73, 78.  THE FINAL ORDER OF THE FULL COMMISSION
MADE THE DETAILED FINDINGS, HOWEVER, SO THAT THE QUESTION NEED NOT
DETAIN US. 

FN11  THE EVIDENCE SHOWED THAT THE TOTAL WEIGHT OF THE HAUL WAS ABOUT
5,500 POUNDS (R. 92), AND THE TRAILER PROPOSED BY U.S.A.C. HAD A
CAPACITY OF 24,000 POUNDS.  (PROTESTANT'S EXHIBIT NO. 15, R. 147; R.
112.) 

FN12  J-T'S APPLICATION WAS SUPPORTED BECAUSE "  ...  WE RECOGNIZED
THAT THE CONTRACT CARRIER CAN DEDICATE EQUIPMENT TO OUR SERVICE, THE
TYPE OF EQUIPMENT THAT WE WANT, AND WE FEEL THAT ON THIS TYPE OF A
TRANSPORTATION IT IS THE BEST THING TO HAVE THE EQUIPMENT SOLELY
DEDICATED TO OUR USE."  (R. 89.) 

IT DID NOT CHOOSE A COMMON CARRIER "BECAUSE THE COMMON CARRIER CANNOT
DEDICATE HIS EQUIPMENT EXCLUSIVELY TO OUR SERVICE AS A CONTRACT CARRIER
CAN."  (R. 97.) 

AGAIN:  "IT IS MY UNDERSTANDING THAT A COMMON CARRIER CANNOT DEDICATE
EQUIPMENT TO A PARTICULAR SHIPPER, THAT HE HOLDS HIMSELF OUT TO FURNISH
THAT EQUIPMENT TO ANY SHIPPER THAT WANTS IT."  (R. 103.) 

THIS WAS OF COURSE AN ERRONEOUS UNDERSTANDING, AS COMMISSION
PRECEDENTS DEMONSTRATE.  A COMMON CARRIER MUST HOLD ITSELF OUT THROUGH
ITS TARIFFS TO SERVE ANY SHIPPER WHO DESIRES THE SAME CLASS OF TRAFFIC,
BUT IT MAY SPECIALIZE AS MUCH AS A CONTRACT CARRIER DOES AND MAY
DEDICATE EQUIPMENT TO THE USE OF ANY ONE SUCH SHIPPER.  WHEN U.S.A.C.
OFFERED TO DO SO, IT WAS A REASONABLE CONCLUSION THAT THE SHIPPER'S
PARTICULAR NEEDS HAD BEEN MET. 

FN13  NOR IS THE HOLDING IN THE SCHAFFER CASE OF ANY AID TO THE
APPELLEES.  THE COURT HELD THAT A COMMON-CARRIER APPLICANT COULD NOT BE
DENIED A CERTIFICATE ON THE GROUNDS OF EXISTING RAIL SERVICE, WITHOUT A
FINDING WHETHER THE "INHERENT ADVANTAGES" OF MOTOR TRANSPORT SHOULD
WARRANT THE GRANT.  SUCH A FINDING WAS THOUGHT NECESSARY TO CONFORM TO
THE DICTATES OF THE NATIONAL TRANSPORTATION POLICY, THE COURT DECLARING
THAT: 

"TO REJECT A MOTOR CARRIER'S APPLICATION ON THE BARE CONCLUSION THAT
EXISTING RAIL SERVICE CAN MOVE THE AVAILABLE TRAFFIC, WITHOUT REGARD TO
THE INHERENT ADVANTAGES OF THE PROPOSED SERVICE, WOULD GIVE ONE MODE OF
TRANSPORTATION UNWARRANTED PROTECTION FROM COMPETITION FROM OTHERS." 
355 U.S., AT 90-91. 

ON 91-92, THE COURT RECOGNIZED THAT THESE CONSIDERATIONS DID NOT
NECESSARILY PERTAIN TO APPLICATIONS OPPOSED BY OTHER MOTOR CARRIERS. 
THE COMMISSION HAS HELD IN THESE PROCEEDINGS THAT MOTOR COMMON AND
CONTRACT CARRIERS ARE NOT DIFFERENT "MODES" OF TRANSPORTATION, 79
M.C.C., AT 710, AND ITS EXPERT CONCLUSION IS ENTITLED TO GREAT WEIGHT. 
INDEED, THE WHOLE HISTORY OF MOTOR CARRIER REGULATION NEGATES ANY
SUGGESTION THAT CONGRESS HAS BEEN INTERESTED IN PRESERVING COMPETITION
BETWEEN THE DIFFERENT CLASSES OF MOTOR CARRIERS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, CONCURRING IN PART.* 

*(THIS OPINION APPLIES ONLY TO NO. 49, ATCHISON, TOPEKA & SANTA FE R.
CO. V. REDDISH, NO. 53, INTERSTATE COMMERCE COMMISSION V. REDDISH, AND
NO. 54, ARKANSAS-BEST FREIGHT SYSTEM, INC., V. REDDISH.) 

THESE ARE APPEALS FROM THE JUDGMENT OF A DISTRICT COURT SETTING ASIDE
AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DENYING AN APPLICATION
FOR A CONTRACT-CARRIER PERMIT.  THE APPLICATION SOUGHT AUTHORITY TO
TRANSPORT CANNED GOODS UNDER CONTINUING CONTRACTS WITH THREE ARKANSAS
CANNING COMPANIES TO POINTS IN 33 STATES AND TO RETURN FROM THOSE
POINTS WITH CANNED GOODS AND CANNING MATERIALS SUCH AS CANS, LIDS, AND
CORRUGATED BOXES.  IT WAS OPPOSED BY TWO GROUPS OF RAILROADS, ONE MOTOR
CONTRACT CARRIER AND 25 MOTOR COMMON CARRIERS, AUTHORIZED TO UNDERTAKE
TRANSPORTATION IN THE TERRITORY PROPOSED. 

THE TRIAL EXAMINER'S RECITATION OF FACTS, AS ADOPTED BY THE
COMMISSION, MAY BE BRIEFLY SUMMARIZED.   EACH OF THE SUPPORTING
SHIPPERS DOES A SUBSTANTIAL VOLUME OF BUSINESS WITH SMALL-LOT
PURCHASERS.  THESE CUSTOMERS MAINTAIN LOW INVENTORIES, NECESSITATING A
TRANSPORTATION SERVICE CAPABLE OF EFFECTING MULTIPLE PICKUPS AND
DELIVERIES ON SHORT NOTICE.  EACH SHIPPER HAS ENGAGED IN PRIVATE
CARRIAGE FOR THIS PURPOSE, SENDING ONLY SINGLE-LOT FULL TRUCKLOADS BY
COMMON CARRIER.  THE STEELE CANNING COMPANY'S PRIVATE EQUIPMENT WAS
FURNISHED IN PART THROUGH A LEASE OF THE APPLICANT'S TRUCKS.   WHEN A
STRIKE OF ITS DRIVERS OCCURRED, IT SOUGHT TO CONTRACT WITH THE
APPLICANT FOR ITS INDEPENDENT SERVICES.  THE OTHER SHIPPERS, WHO BEFORE
THE STRIKE SOLD MUCH OF THEIR GOODS THROUGH STEELE, NOW WISH TO EXPAND
THEIR SALES TO INDIVIDUAL CUSTOMERS AND DESIRE THE SAME TYPE OF SERVICE
FROM THE APPLICANT.    UNDER ITS TEMPORARY AUTHORITY, THE APPLICANT HAS
BEEN OFFERING SEVERAL STOPS IN TRANSIT AT THE TRUCKLOAD RATE, AND
ASSESSING NO STOP-IN-TRANSIT CHARGE, THUS RENDERING IN EFFECT A LESS
THAN-TRUCKLOAD SERVICE AT TRUCKLOAD RATES. 

EXISTING MOTOR CARRIERS POSSESS THE AUTHORITY AND EQUIPMENT TO
PROVIDE SERVICE TO A SUBSTANTIAL NUMBER OF THE POINTS INVOLVED, EITHER
DIRECTLY OR BY JOINT-LINE OPERATIONS.  ALTHOUGH FEW HAVE PREVIOUSLY
PARTICIPATED IN THIS PARTICULAR TRANSPORTATION, EACH DISPLAYS A DESIRE
TO OBTAIN THE TRAFFIC; SO DO THE PROTESTING RAILROADS, WHICH HAVE
RECENTLY EXPERIENCED A SHARP DECLINE IN CANNED-GOODS TONNAGE.  THE
MOTOR CARRIERS ARE WILLING AND ABLE TO PROVIDE MULTIPLE PICKUPS AND
DELIVERIES WHERE AUTHORIZED. 

THE SHIPPERS ASSERTED A PREFERENCE FOR THE APPLICANT'S SERVICES ON
TWO SPECIFIC GROUNDS.  FIRST, THEY CONTENDED THAT EXISTING CARRIERS
WERE UNABLE TO FURNISH MULTIPLE PICKUP AND DELIVERY SERVICE WITH
SUFFICIENT EXPEDITION.  SECOND, THEY MAINTAINED THAT THE LESS-THAN
TRUCKLOAD RATES CHARGED BY COMMON CARRIERS WERE PROHIBITIVE IN LIGHT OF
THE SMALL PROFIT FROM A CANNED-GOODS SHIPMENT ALLOWED BY COMPETITIVE
CONDITIONS.  ACCORDINGLY, THEY ASSERTED THAT, IF THE PERMIT WERE
DENIED, THEY WOULD RESORT TO PRIVATE CARRIAGE. 

ON THE FIRST POINT, THE COMMISSION CONCLUDED THAT THE TYPE OF SERVICE
REQUIRED BY THE SHIPPERS WAS NOT SUBSTANTIALLY DIFFERENT FROM THAT
OFFERED BY AVAILABLE MOTOR COMMON CARRIERS.  ITS TREATMENT OF THE THIRD
AND FOURTH CRITERIA IN SEC. 209(B) OF PART II OF THE INTERSTATE
COMMERCE ACT, ADDED BY 71 STAT. 411 (1957), 49 U.S.C. SEC. 309(B), A
TREATMENT ATTACKED AND INVALIDATED IN THE DISTRICT COURT, WAS ANIMATED
BY THE SAME POLICY PREFERENCE FOR PRESERVING AVAILABLE COMMON CARRIAGE
THAT CHARACTERIZED ITS DISPOSITION OF THE J-T TRANSPORT APPLICATION,
REVIEWED HERE TODAY, ANTE, P. 81.  THE PERTINENT PORTION OF ITS REPORT
IS AS FOLLOWS: 

"ASIDE FROM EVIDENCE PERTAINING TO RATES, THE RECORD IS DEVOID OF ANY
SUBSTANTIAL SHOWING OF DISSATISFACTION ON THE PART OF THE SHIPPERS WITH
EXISTING SERVICE.  COMPLAINTS ABOUT JOINT-LINE SERVICE, SLOW TRANSIT
TIME, AND INABILITY TO ARRANGE MULTIPLE PICKUPS AND DELIVERIES ARE OF A
GENERAL NATURE, AND ARE NOT SUBSTANTIATED BY REFERENCE TO SPECIFIC
INSTANCES.  ALTHOUGH PROTESTANT MOTOR CARRIERS, ESPECIALLY THOSE
OPERATING OVER REGULAR ROUTES, MAY BE HINDERED IN SOME INSTANCES BY
THEIR AUTHORITIES AND THE NATURE OF THEIR OPERATIONS FROM ACHIEVING
COMPLETE FLEXIBILITY IN EFFECTING MULTIPLE PICKUPS AND DELIVERIES, THE
SUPPORTING SHIPPERS HAVE FAILED TO SHOW THAT THEY HAVE BEEN UNABLE TO
OBTAIN REASONABLY ADEQUATE SERVICE UPON REQUEST  ...  .  IN THE ABSENCE
OF A MORE POSITIVE SHOWING THAT EXISTING SERVICE WILL NOT MEET
SHIPPER'S REASONABLE TRANSPORTATION NEEDS, WE ARE NOT WARRANTED IN
FINDING THAT A NEW SERVICE SHOULD BE AUTHORIZED OR THAT THE SUPPORTING
SHIPPERS WILL BE ADVERSELY AFFECTED BY A DENIAL OF THIS APPLICATION." 
81 M.C.C. 35, 41-42 (1959). 

THIS CONCLUSION WAS ATTACKED AND SET ASIDE IN THE DISTRICT COURT ON
MUCH THE SAME GROUNDS AS THOSE LEADING TO A SIMILAR RESULT IN THE J-T
TRANSPORT CASE, SUPRA.  LITTLE NEED BE ADDED HERE TO WHAT I SAID
THERE.  SUFFICE IT TO SAY THAT THE COMMISSION MADE THE FINDINGS
REQUIRED OF IT BY SEC. 209(B) AND THAT EACH WAS SUPPORTED BY
SUBSTANTIAL EVIDENCE.  ALTHOUGH ITS EVALUATION OF THOSE FINDINGS AND
THE CONCLUSION THAT IT DREW FROM THEM (FN1) MAY BE DIFFERENT FROM THOSE
WE MIGHT HAVE REACHED WERE WE ON THE COMMISSION, IT IS NOT FOR A
REVIEWING COURT TO UPSET THE COMMISSION'S INFORMED JUDGMENT ON THE
FACTORS IT HAS BEEN ASKED BY CONGRESS TO CONSIDER.  UNITED STATES V.
PIERCE AUTO LINES, 327 U.S. 515, 535-536; BASS V. UNITED STATES, 163 F.
SUPP. 1, 4 (W.D. VA. 1958), AFF'D PER CURIAM, 358 U.S. 333; AND SEE
SECRETARY OF AGRICULTURE V. CENTRAL ROIG REF. CO., 338 U.S. 604. 

THERE IS, HOWEVER, AN ADDITIONAL ISSUE IN THIS CASE THAT
DIFFERENTIATES IT FROM J-T TRANSPORT, SUPRA.  IT IS WHETHER THE
COMMISSION IS REQUIRED IN AN APPLICATION PROCEEDING TO CONSIDER
EVIDENCE THAT THE RATES OF AVAILABLE COMMON CARRIERS ARE SO HIGH AS TO
MAKE TRANSPORTATION COSTS PROHIBITIVE FOR A SUPPORTING SHIPPER. 

BEFORE REACHING THAT ISSUE, IT IS NECESSARY TO DISPOSE OF A
CONTENTION THAT PREVAILED IN THE DISTRICT COURT AND IS PRESSED HERE,
THAT THE COMMISSION MUST CONSIDER IN EVERY APPLICATION EVIDENCE OF MERE
RATE ADVANTAGES RESULTING FROM ECONOMIES INHERENT IN CONTRACT-CARRIER
OPERATIONS.  SECTION 209(B) MAKES NO SUCH REQUIREMENT. 

IN SCHAFFER TRANSP.  CO. V. UNITED STATES, 355 U.S. 83, 91-92, WE
RECOGNIZED AND IMPLIEDLY APPROVED THE LONGSTANDING COMMISSION PRACTICE
OF IGNORING RATE ADVANTAGES OFFERED BY AN APPLICANT OVER AVAILABLE
MOTOR CARRIERS.  THE COMMISSION HAS CONSISTENTLY RULED THAT A SHIPPER
DISSATISFIED WITH EXISTING COMMON-CARRIER RATES CANNOT ON THAT GROUND
ALONE SUCCESSFULLY SUPPORT AN APPLICATION FOR A CONTRACT-CARRIER
PERMIT, AND THAT ITS REMEDY LIES IN ATTACKING THE RATES UNDER SEC. 216
OF THE ACT.  SEE, E.G., DIXON & KOSTER CONTRACT CARRIER APPLICATION, 32
M.C.C. 1, 4 (1942); JAMES F. BLACK EXTENSION OF OPERATIONS -
PREFABRICATED HOUSES, 48 M.C.C.  695, 708-709 (1948); JOSEPH POMPROWITZ
EXTENSION - PACKING HOUSE PRODUCTS, 51 M.C.C. 343, 350 (1950).  THAT IS
WHAT IT RULED IN THIS CASE, SEE 81 M.C.C., AT 42-43. 

THIS CONSISTENT COMMISSION PRACTICE RESTS ON RELEVANT TRANSPORTATION
POLICY CONSIDERATIONS.  IF RATE ADVANTAGES RESULTING FROM INHERENT
ECONOMIES WERE MADE A DETERMINING FACTOR, THE COMMISSION WOULD HAVE TO
PERMIT PROTESTANTS TO CHALLENGE THE COST JUSTIFICATION OF AN
APPLICANT'S PROPOSED RATES.  THIS THE COMMISSION HAS NEVER PERMITTED,
SEE OMAHA & C.B.R.  & BRIDGE CO. COMMON CARRIER APPLICATION, 52 M.C.C.
207, 234-235 (1950), LARGELY BECAUSE AT THE APPLICATION STAGE THERE IS
AS YET NO REVEALING RECORD OF PROFIT OR LOSS DERIVED FROM THE PROPOSED
TRANSPORTATION SERVICE, (FN2) AND ITS REFUSAL HAS BEEN JUDICIALLY
APPROVED.  RAILWAY EXPRESS AGENCY V. UNITED STATES, 153 F. SUPP. 738,
741 (S.D.N.Y. 1957), AFF'D PER CURIAM, 355 U.S. 270; SEE AMERICAN
TRUCKING ASSNS.  V. UNITED STATES, 326 U.S. 77, 86-87. 

MORE FUNDAMENTALLY, IT MISCONCEIVES THE OBJECT OF CONGRESSIONAL MOTOR
CARRIER REGULATION TO MAINTAIN THAT THE COMMISSION MUST IN APPLICATION
PROCEEDINGS RESPECT INHERENT COST ADVANTAGES OF CONTRACT AS AGAINST
COMMON CARRIERS.  THEY ARE NOT DIFFERENT "MODES" OF TRANSPORTATION
WITHIN THE MEANING OF THE NATIONAL TRANSPORTATION POLICY, AND CONGRESS
HAS NOT BEEN CONCERNED WITH MAINTAINING COMPETITION BETWEEN THEM AS IT
HAS BEEN, FOR EXAMPLE, BETWEEN RAILROAD AND MOTOR CARRIERS.  COMPARE
SCHAFFER TRANSP.  CO. V. UNITED STATES, 355 U.S. 83.  THE COMMISSION IS
SPECIFICALLY ADMONISHED, IN SEC. 218(B) OF THE ACT, NOT TO PRESCRIBE
MINIMUM RATES THAT GIVE CONTRACT CARRIERS AN UNDUE COMPETITIVE
ADVANTAGE OVER COMMON CARRIERS. 

IN RATE PROCEEDINGS, HOWEVER, THE COMMISSION HAS CONSTRUED THIS
EXISTING, PREVIOUSLY AUTHORIZED CONTRACT CARRIERS EVEN THOUGH THEY MAY
DRAW AWAY A LARGE VOLUME OF TRAFFIC FROM COMMON CARRIERS.  NEW ENGLAND
MOTOR RATE BUREAU V. LEWERS, 30 M.C.C. 651 (1941).  ONCE GRANTED A
PERMIT, THEREFORE, A CONTRACT CARRIER MAY EXPLOIT ITS INHERENT COST
ADVANTAGES TO THE GREAT DETRIMENT OF EXISTING COMMON CARRIERS.  IN
DETERMINING TO IGNORE THOSE COST ADVANTAGES IN AN APPLICATION
PROCEEDING, THE COMMISSION ACTS WELL WITHIN ITS AUTHORITY TO EFFECTUATE
THE CONGRESSIONAL POLICY OF LIMITING ENTRANCE TO CONTRACT CARRIAGE AS A
MEANS OF PRESERVING THE CAPACITY OF AVAILABLE COMMON CARRIERS TO MEET
THE NATION'S TRANSPORTATION NEEDS. 

THAT POLICY IS UNAFFECTED BY THE 1957 AMENDMENTS TO SECS. 203(A)(15)
AND 209(B).  THERE IS NOT ONE REFERENCE TO RATES IN THE LEGISLATIVE
HISTORY OF THOSE AMENDMENTS.  IF ANYTHING, THE ACTION OF THE 1957
CONGRESS LOOKS THE OTHER WAY; SEC. 218(A) WAS AMENDED, BY 71 STAT. 343,
49 U.S.C. SEC. 318(A), TO REQUIRE THE FILING OF ACTUAL RATHER THAN
MINIMUM CONTRACT-CARRIER RATES, SO AS TO ELIMINATE A COMPETITIVE
DISADVANTAGE OF COMMON CARRIERS. 

THE RIGHT OF THE COMMISSION TO DISREGARD RATE ADVANTAGES AS SUCH IN
APPLICATION PROCEEDINGS DOES NOT, HOWEVER, DISPOSE OF THIS CASE.  FOR
THE TESTIMONY AND ARGUMENTS PRESENTED TO THE COMMISSION FAIRLY RAISED
THE CLAIM THAT THE AVAILABLE COMMON CARRIER RATES, WHETHER OR NOT JUST
AND REASONABLE IN RELATION TO TRANSPORTATION COSTS, WERE PROHIBITIVE
FOR THE SHIPPERS.  IF THIS CLAIM WERE SUSTAINED BY THE COMMISSION, IT
IS DIFFICULT TO SEE HOW IT COULD AVOID THE CONCLUSION THAT A DENIAL OF
THE PERMIT WOULD HOBBLE THE SHIPPER WITHOUT BENEFITING PROTESTANTS BY
POTENTIALLY AUGMENTING THEIR TRAFFIC. 

THE COMMISSION HAS IN FACT RECOGNIZED WHAT IT STYLES AN "EMBARGO"
EXCEPTION TO ITS USUAL PRACTICE OF DISREGARDING THE LEVEL OF RATES
CHARGED BY EXISTING CARRIERS.  SEE H.L.&F.  MCBRIDE EXTENSION - OHIO,
62 M.C.C. 779, 790 (1954).  IN HERMAN R. EWELL EXTENSION -
PHILADELPHIA, 72 M.C.C. 645, 648 (1957), THE COMMISSION TREATED A
SHIPPER'S CLAIM SIMILAR TO THE PRESENT ONE IN A MANNER RELEVANT TO OUR
PROBLEM. 

"THE PRESENT RECORD DOES NOT SHOW ANY EFFORT BY THE CARRIERS TO
HANDLE WITH THE SHIPPER ITS CLAIM THAT THEIR RATES ARE PROHIBITIVE. 
SUGAR IS A RELATIVELY INEXPENSIVE COMMODITY WHICH SELLS AT PRICES
WHICH, COMPARED TO PREWAR PRICES, DO NOT APPEAR TO HAVE INCREASED
PERCENTAGEWISE TO THE SAME EXTENT AS MOST OTHER COMMODITIES.  IT
APPEARS NOT IMPROBABLE THAT THE MARGIN OF PROFIT THEREON IS SO NARROW
THAT THE TRAFFIC WILL NOT MOVE EXCEPT AT RATES LOWER THAN OTHER
COMMODITIES CUSTOMARILY MOVED IN TANK-TRUCK EQUIPMENT.  IT MAY BE THAT
PROTESTANT'S RATES, THOUGH NOT INTRINSICALLY UNREASONABLE FROM A
STANDPOINT OF COST OR COMPARED TO OTHER BULK LIQUID RATES, ARE STILL
TOO HIGH TO MOVE THIS PARTICULAR TRAFFIC.  AND IT MAY BE THAT
PROTESTANTS ARE WITHIN THEIR RIGHTS IN THE EXERCISE OF THEIR MANAGERIAL
DISCRETION IN REFUSING ANY REDUCTION EVEN AT THE COST OF LOSING THE
TRAFFIC BUT, IF SO, THEY SHOULD AT LEAST HAVE NEGOTIATED WITH THE
SHIPPERS TO THE POINT OF MAKING THEIR POSITIONS CLEAR.  THEIR FAILURE
TO DO SO INDICATES EITHER DECISION TO FOREGO THE TRAFFIC EXCEPT AT
THEIR PRESENT RATES OR A LACK OF INTEREST IN IT AT RATES AT WHICH IT
CAN MOVE. 

"WITHOUT DEPARTING FROM THE GENERAL PROPOSITION THAT THE
REASONABLENESS OF RATES IS NOT AN ISSUE IN PUBLIC CONVENIENCE AND
NECESSITY PROCEEDINGS, AND THAT IF RATES ARE TOO HIGH AN ADEQUATE
REMEDY IS AVAILABLE UNDER SECTION 216 OF THE INTERSTATE COMMERCE ACT,
WE CONCLUDE THAT AUTHORITY SHOULD BE GRANTED HERE  ...  . PROTESTANTS'
RATES HAVE NOT AND WILL NOT MOVE THE TRAFFIC; AND TO THIS EXTENT THE
AVAILABLE MOTOR SERVICE IS INADEQUATE TO MEET THE SHIPPER'S
REQUIREMENTS.  PROTESTANTS, NEVER HAVING HANDLED THE TRAFFIC, WILL NOT
BE ADVERSELY AFFECTED BY THIS ACTION." 

IN THE EWELL PROCEEDING, THERE WAS EVIDENCE THAT THE EXISTING RATES
WERE TWO TO THREE TIMES AS HIGH AS THOSE PROPOSED BY THE APPLICANT,
THAT THE SHIPPER WOULD HAVE TO "ABSORB" ABOUT $200 ON EACH 30,000-POUND
SHIPMENT, AND THAT IT HAD ASKED EXISTING CARRIERS TO ADJUST THEIR RATES
WITHOUT RESULT.   SIMILAR EVIDENCE WAS PRESENTED IN THE PRESENT
PROCEEDING.  THE REPRESENTATIVE OF THE STEELE CANNING COMPANY TESTIFIED
THAT, IN NUMEROUS DISCUSSIONS WITH PROTESTANT CARRIERS, IT HAD LEARNED
THAT THEIR LESS-THAN-TRUCKLOAD RATES WERE TWO AND THREE TIMES AS HIGH
AS THE TRUCKLOAD RATES PROPOSED BY THE APPLICANT, AND THAT THESE RATES
WOULD DRIVE ITS CANNED GOODS OUT OF THE COMPETITIVE MARKET.  WHETHER
THIS TESTIMONY WAS SPECIFIC AND PERSUASIVE ENOUGH TO ESTABLISH THAT THE
TRAFFIC WOULD NOT MOVE AT EXISTING RATES WE DO NOT KNOW, FOR THE
COMMISSION MADE NO FINDING ON THIS ISSUE.  COMPARE SCHIRMER TRANSP. 
CO., INC., EXTENSION - MOLASSES, 77 M.C.C. 240, 242 (1958).  UNTIL IT
DOES, WE ARE UNABLE TO EXERCISE OUR REVIEWING FUNCTION OF ENSURING THAT
THE COMMISSION STAYS WITHIN ITS STATUTORY AUTHORITY AND DOES NOT ACT
ARBITRARILY.  CF. FLORIDA V. UNITED STATES, 282 U.S. 194, 214-215. 

I WOULD VACATE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE CASE
TO THE COMMISSION FOR A CONSIDERED DETERMINATION WHETHER THE RATES OF
PROTESTANT MOTOR CARRIERS ARE PROHIBITIVE.  THE SCOPE OF INQUIRY SHOULD
BE STRICTLY LIMITED.  THE COMMISSION NEED NOT ENGAGE IN A FULL-DRESS
RATE PROCEEDING TO DETERMINE WHETHER PRESENT MOTOR-CARRIER RATES ARE
UNJUST OR UNREASONABLE.  IT NEED ONLY FIND, FROM THE EVIDENCE OF RECORD
OR ADDITIONAL EVIDENCE THAT IT DEEMS NECESSARY, WHETHER THOSE RATES
IMPOSE AN EMBARGO ON THE SHIPPERS' GOODS. 

FN1  THE COMMISSION HAS CONSISTENTLY RULED THAT A JOINT-LINE
TRANSPORTATION SERVICE IS NOT INADEQUATE TO MEET A SHIPPER'S NEEDS. 
SEE CASES COLLECTED IN HALE & HALE, COMPETITION OR CONTROL III:  MOTOR
CARRIERS, 108 U. PA. L. REV. 775, 783 N. 24 (1960). 

FN2  THUS IN THE PRESENT CASE THE APPLICANT SUBMITTED A BALANCE SHEET
BUT NO INCOME STATEMENT (R. 31). 
..END :









HODGES V. UNITED STATES 368 U.S. 139 


NO. 58.  ARGUED NOVEMBER 13, 1961 - DECIDED DECEMBER 4, 1961 - REPORTED
BELOW: 108 U.S. APP. D.C. 375, 282 F.2D 858. 


CERTIORARI WAS GRANTED IN THIS CASE ON THE UNDERSTANDING THAT IT
PRESENTED THE QUESTION WHETHER THE DISTRICT COURT SHOULD HAVE ACCORDED
PETITIONER A HEARING UNDER 28 U.S.C.  SEC. 2255 WHEN IT APPEARED THAT
NO APPEAL HAD BEEN PERFECTED FROM THE ORIGINAL JUDGMENT OF CONVICTION. 
A THOROUGH REVIEW OF THE FULL RECORD REVEALED THAT THE DISTRICT COURT
DID IN FACT CONDUCT SUCH A HEARING, THOUGH THE MINUTES OF SUCH HEARING
HAD BEEN LOST, AND THAT NO HEARING WAS REQUIRED UNDER THE STATUTE,
BECAUSE "THE FILES AND RECORDS OF THE CASE CONCLUSIVELY SHOW" THAT
PETITIONER WAS ENTITLED TO NO RELIEF.  HELD:  THE WRIT IS DISMISSED AS
IMPROVIDENTLY GRANTED. 

HODGES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

WE BROUGHT THIS CASE HERE UPON THE UNDERSTANDING THAT THE QUESTION IT
PRESENTED WAS WHETHER THE DISTRICT COURT SHOULD HAVE ACCORDED
PETITIONER A HEARING UNDER 28 U.S.C.  SEC. 2255 WHEN IT APPEARED THAT
NO APPEAL HAD BEEN PERFECTED FROM THE ORIGINAL JUDGMENT OF CONVICTION. 
AFTER A THOROUGH REVIEW OF THE FULL RECORD, MADE POSSIBLE AFTER THE
CASE WAS BRIEFED AND ARGUED ON THE MERITS, WE HAVE CONCLUDED THAT THE
PETITION FOR CERTIORARI WAS IMPROVIDENTLY GRANTED.  THE RECORD SHOWS
THAT THE DISTRICT COURT DID IN FACT CONDUCT A HEARING UPON THE
PETITIONER'S SEC. 2255 MOTION, 156 F. SUPP. 313, BUT THAT THE MINUTES
OF SUCH HEARING HAVE BEEN LOST.  WHETHER OR NOT THAT HEARING WAS
ADEQUATE NEED NOT, HOWEVER, BE DETERMINED, FOR WE ARE SATISFIED FROM
THE RECORD, WHICH INCLUDES THE TRIAL TRANSCRIPT, THAT IN ANY EVENT THIS
WAS A CASE WHERE NO HEARING WAS REQUIRED UNDER THE STATUTE, BECAUSE
"THE FILES AND RECORDS OF THE CASE CONCLUSIVELY SHOW" THAT THE
PETITIONER WAS ENTITLED TO NO RELIEF.  THEREFORE, AND NECESSARILY
WITHOUT APPROVING OR DISAPPROVING THE VIEW OF THE COURT OF APPEALS ON
WHAT NOW APPEARS AN EXTRANEOUS ISSUE, 108 U.S. APP.  D.C. 375, 282 F.2D
858, WE DISMISS THE WRIT AS IMPROVIDENTLY GRANTED.  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THE HEARING WHICH THE DISTRICT COURT GAVE PETITIONER UNDER 28 U.S.C.
SEC. 2255 IS NOT DISPOSITIVE OF THE CASE.  THAT HEARING WAS HELD
OCTOBER 25, 1957.  THE ISSUE WITH WHICH THE COURT OF APPEALS IN THE
PRESENT CASE WAS CONCERNED WAS PRESENTED IN TWO AFFIDAVITS, ONE BY
PETITIONER DATED AUGUST 3, 1959, AND THE OTHER BY PETITIONER'S LAWYERS
DATED JULY 31, 1959.  PETITIONER SWEARS HE DID NOT KNOW THAT HE HAD
ONLY 10 DAYS TO APPEAL.  PETITIONER'S LAWYER SWEAR, "WE WERE PRESENT AT
THE TIME THAT SENTENCE WAS IMPOSED.  IMMEDIATELY AFTER SENTENCE WAS
IMPOSED, JOHN HODGES WAS REMOVED FROM THE COURTROOM BY THE U.S. MARSHAL
AND WE DID NOT HAVE AN OPPORTUNITY TO TALK TO HIM."  THEY ALSO STATE
THAT THEY ADVISED PETITIONER'S WIFE THAT SHE SHOULD HAVE HIM PROSECUTE
AN APPEAL.  PETITIONER SAYS THAT WHEN HIS WIFE MENTIONED AN APPEAL, THE
10-DAY PERIOD HAD PASSED.  NO ONE GAVE PETITIONER TIMELY NOTICE OF HIS
RIGHT TO APPEAL.* 

*HAD THE SENTENCING COURT REALIZED PETITIONER HAD NO EFFECTIVE LEGAL
REPRESENTATION AT THE TIME, ITS DUTY WOULD HAVE BEEN CLEAR.  RULE
37(A)(2) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES: "  ...
WHEN A COURT AFTER TRIAL IMPOSES SENTENCE UPON A DEFENDANT NOT
REPRESENTED BY COUNSEL, THE DEFENDANT SHALL BE ADVISED OF HIS RIGHT TO
APPEAL AND IF HE SO REQUESTS, THE CLERK SHALL PREPARE AND FILE
FORTHWITH A NOTICE OF APPEAL ON BEHALF OF THE DEFENDANT.  AN APPEAL BY
THE GOVERNMENT WHEN AUTHORIZED BY STATUTE MAY BE TAKEN WITHIN 30 DAYS
AFTER ENTRY OF THE JUDGMENT OR ORDER APPEALED FROM." 

THE UNDERLYING CONSTITUTIONAL ISSUE WHICH PETITIONER PRESSES IS THAT
THE CONFESSION USED AGAINST HIM WAS COERCED.  I DO NOT SEE HOW WE CAN
SAY THAT "THE FILES AND RECORDS OF THE CASE CONCLUSIVELY SHOW" THAT
PETITIONER IS ENTITLED TO NO RELIEF.  FOLLOWING THE 1957 HEARING THE
DISTRICT COURT MADE A FINDING THAT PETITIONER'S CONFESSION WAS
"VOLUNTARY" AND WAS NOT "THE RESULT OF COERCION, THREATS OR PROMISES." 
BUT THERE IS NO RECORD OF THAT HEARING.  THE REPORTER'S NOTES WERE
LOST.  NO COURT CAN REVIEW THE FINDINGS.  NO COURT HAS EVER REVIEWED
THEM. 

WE ARE NOT HERE CONCERNED WITH THE RIGHT TO APPEAL OUT OF TIME, AS
WAS THE CASE OF UNITED STATES V. ROBINSON, 361 U.S. 220.  INDEED, IN
ROBINSON THE COURT RECOGNIZED THAT RELIEF WAS, OR SHOULD BE, AVAILABLE
UNDER SEC. 2255 IN CASES SUCH AS THE ONE NOW BEFORE US: 

"THE ALLOWANCE OF AN APPEAL MONTHS OR YEARS AFTER EXPIRATION OF THE
PRESCRIBED TIME SEEMS UNNECESSARY FOR THE ACCOMPLISHMENT OF SUBSTANTIAL
JUSTICE, FOR THERE ARE A NUMBER OF COLLATERAL REMEDIES AVAILABLE TO
REDRESS DENIAL OF BASIC RIGHTS.  EXAMPLES ARE:  THE POWER OF A DISTRICT
COURT UNDER RULE 35 TO CORRECT AN ILLEGAL SENTENCE AT ANY TIME, AND TO
REDUCE A SENTENCE WITHIN 60 DAYS AFTER THE JUDGMENT OF CONVICTION
BECOMES FINAL; THE POWER OF A DISTRICT COURT TO ENTERTAIN A COLLATERAL
ATTACK UPON A JUDGMENT OF CONVICTION AND TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE UNDER 28 U.S.C. SEC. 2255; AND PROCEEDINGS BY WAY
OF WRIT OF ERROR CORAM NOBIS."  ID., AT 230, NOTE 14. 

IF THE ERROR NOW BEING PRESSED WERE A NON-CONSTITUTIONAL ONE, RELIEF
MIGHT BE DENIED, CITING SUNAL V. LARGE, 332 U.S. 174.  BUT IN THAT
CASE, WHERE HABEAS CORPUS WAS SOUGHT TO DO SERVICE AS AN APPEAL, WE
MADE CLEAR THAT WE WERE NOT DEALING WITH CONSTITUTIONAL DEFECTS IN THE
TRIAL.  ID., AT 178, 182.  WHEN A CONSTITUTIONAL ISSUE WAS PRESENTED,
WE TOOK THE OTHER COURSE AND ALLOWED RELIEF BY WAY OF SEC. 2255, AT
LEAST UNTIL TODAY.  SEE, E.G., JORDAN V. UNITED STATES, 352 U.S. 904. 
IN THE JORDAN CASE, PETITIONER HAD NOT RAISED THE CONSTITUTIONAL
OBJECTION AT THE TRIAL; AND THOUGH HE HAD APPEALED, HE HAD FAILED TO
RAISE IT THERE.  98 U.S. APP. D.C. 160, 166, 233 F.2D 362, 368.  LATER
HE TENDERED IT IN THE SEC. 2255 PROCEEDING.  WE HELD THAT THE
CONSTITUTIONAL ISSUE, THOUGH NOT RAISED AT THE TRIAL OR ON APPEAL, AS
COULD HAVE BEEN DONE, COULD BE RAISED IN A SEC. 2255 PROCEEDING.  THE
COURT OF APPEALS PROMPTLY AND PROPERLY TOOK THE JORDAN CASE TO MEAN
JUST THAT.  ASKINS V. UNITED STATES, 102 U.S. APP. D.C. 198, 200, 251
F.2D 909, 911.  IF THE JORDAN CASE IS THE LAW, I FAIL TO SEE WHY RELIEF
BY WAY OF SEC. 2255 IS NOT AVAILABLE WHEN PETITIONER, THROUGH NO FAULT
OF HIS OWN, WAS DENIED THE RIGHT TO APPEAL. 
..END :



UNION CARTAGE CO. V. UNITED STATES 368 U.S. 143 


NO. 448.  DECIDED DECEMBER 4, 1961 - 193 F. SUPP. 645, AFFIRMED. 


UNION CARTAGE CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE BRENNAN ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :















LINNABERY V. IOWA 368 U.S. 143 


NO. 26, MISC.  DECIDED DECEMBER 4, 1961 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


LINNABERY ET AL. V. IOWA. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BOWNE V. UTAH 368 U.S. 144 


NO. 169, MISC.  DECIDED DECEMBER 4, 1961 - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  11 UTAH 2D 95, 355
P.2D 689. 


BOWNE V. UTAH. 

APPEAL FROM THE SUPREME COURT OF UTAH. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















POST V. BOLES 368 U.S. 144 


NO. 319, MISC.  DECIDED DECEMBER 4, 1961 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


POST V. BOLES, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
WEST VIRGINIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR A HEARING IN THE LIGHT OF UVEGES V. PENNSYLVANIA,
335 U.S. 437, AND HERMAN V. CLAUDY, 350 U.S. 116. 
..END :














JOHNSON V. NEW JERSEY 368 U.S. 145 


NO. 347, MISC.  DECIDED DECEMBER 4, 1961 - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  34 N.J. 212, 168 A.2D
1. 


JOHNSON ET AL. V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















HOYT V. FLORIDA 368 U.S. 57 


NO. 31.  ARGUED OCTOBER 19, 1961.  - DECIDED NOVEMBER 20, 1961.  - 119
SO. 2D 691, AFFIRMED. 


APPELLANT, A WOMAN, KILLED HER HUSBAND AND WAS CONVICTED IN A FLORIDA
STATE COURT OF SECOND-DEGREE MURDER.  SHE CLAIMED THAT HER TRIAL BEFORE
AN ALL-MALE JURY VIOLATED HER RIGHTS UNDER THE FOURTEENTH AMENDMENT.  A
FLORIDA STATUTE PROVIDES, IN SUBSTANCE, THAT NO WOMAN SHALL BE TAKEN
FOR JURY SERVICE UNLESS SHE VOLUNTEERS FOR IT.  HELD:  THE FLORIDA
STATUTE IS NOT UNCONSTITUTIONAL ON ITS FACE OR AS APPLIED IN THIS
CASE.  PP. 58-69. 

(A)  THE RIGHT TO AN IMPARTIALLY SELECTED JURY ASSURED BY THE
FOURTEENTH AMENDMENT DOES NOT ENTITLE ONE ACCUSED OF CRIME TO A JURY
TAILORED TO THE CIRCUMSTANCES OF THE PARTICULAR CASE.  IT REQUIRES ONLY
THAT THE JURY BE INDISCRIMINATELY DRAWN FROM AMONG THOSE IN THE
COMMUNITY ELIGIBLE FOR JURY SERVICE, UNTRAMMELLED BY ANY ARBITRARY AND
SYSTEMATIC EXCLUSIONS.  PP. 58-59. 

(B)  THE FLORIDA STATUTE IS NOT UNCONSTITUTIONAL ON ITS FACE, SINCE
IT IS NOT CONSTITUTIONALLY IMPERMISSIBLE FOR A STATE TO CONCLUDE THAT A
WOMAN SHOULD BE RELIEVED FROM JURY SERVICE UNLESS SHE HERSELF
DETERMINES THAT SUCH SERVICE IS CONSISTENT WITH HER OWN SPECIAL
RESPONSIBILITIES.  PP. 59-65. 

(C)  IT CANNOT BE SAID THAT THE STATUTE IS UNCONSTITUTIONAL AS
APPLIED IN THIS CASE, SINCE THERE IS NO SUBSTANTIAL EVIDENCE IN THE
RECORD THAT FLORIDA HAS ARBITRARILY UNDERTAKEN TO EXCLUDE WOMEN FROM
JURY SERVICE.  PP. 65-69. 

HOYT V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

APPELLANT, A WOMAN, HAS BEEN CONVICTED IN HILLSBOROUGH COUNTY,
FLORIDA, OF SECOND DEGREE MURDER OF HER HUSBAND.  ON THIS APPEAL UNDER
28 U.S.C. SEC. 1257(2) FROM THE FLORIDA SUPREME COURT'S AFFIRMANCE OF
THE JUDGMENT OF CONVICTION, 119 SO. 2D 691, WE NOTED PROBABLE
JURISDICTION, 364 U.S. 930, TO CONSIDER APPELLANT'S CLAIM THAT HER
TRIAL BEFORE AN ALL-MALE JURY VIOLATED RIGHTS ASSURED BY THE FOURTEENTH
AMENDMENT.  THE CLAIM IS THAT SUCH JURY WAS THE PRODUCT OF A STATE JURY
STATUTE WHICH WORKS AN UNCONSTITUTIONAL EXCLUSION OF WOMEN FROM JURY
SERVICE. 

THE JURY LAW PRIMARILY IN QUESTION IS FLA. STAT., 1959, SEC.
40.01(1).  THIS ACT, WHICH REQUIRES THAT GRAND AND PETIT JURORS BE
TAKEN FROM "MALE AND FEMALE" CITIZENS OF THE STATE POSSESSED OF CERTAIN
QUALIFICATIONS, (FN1) CONTAINS THE FOLLOWING PROVISO: 

"PROVIDED, HOWEVER, THAT THE NAME OF NO FEMALE PERSON SHALL BE TAKEN
FOR JURY SERVICE UNLESS SAID PERSON HAS REGISTERED WITH THE CLERK OF
THE CIRCUIT COURT HER DESIRE TO BE PLACED ON THE JURY LIST." 

SHOWING THAT SINCE THE ENACTMENT OF THE STATUTE ONLY A MINIMAL NUMBER
OF WOMEN HAVE SO REGISTERED, APPELLANT CHALLENGES THE CONSTITUTIONALITY
OF THE STATUTE BOTH ON ITS FACE AND AS APPLIED IN THIS CASE.  FOR
REASONS NOW TO FOLLOW WE DECIDE THAT BOTH CONTENTIONS MUST BE
REJECTED. 

AT THE CORE OF APPELLANT'S ARGUMENT IS THE CLAIM THAT THE NATURE OF
THE CRIME OF WHICH SHE WAS CONVICTED PECULIARLY DEMANDED THE INCLUSION
OF PERSONS OF HER OWN SEX ON THE JURY.  SHE WAS CHARGED WITH KILLING
HER HUSBAND BY ASSAULTING HIM WITH A BASEBALL BAT.  AN INFORMATION WAS
FILED AGAINST HER UNDER FLA. STAT., 1959, SEC. 782.04, WHICH PUNISHES
AS MURDER IN THE SECOND DEGREE "ANY ACT IMMINENTLY DANGEROUS TO
ANOTHER, AND EVINCING A DEPRAVED MIND REGARDLESS OF HUMAN LIFE,
ALTHOUGH WITHOUT ANY PREMEDITATED DESIGN TO EFFECT THE DEATH OF ANY
PARTICULAR INDIVIDUAL  ...  ."  AS DESCRIBED BY THE FLORIDA SUPREME
COURT, THE AFFAIR OCCURRED IN THE CONTEXT OF A MARITAL UPHEAVAL
INVOLVING, AMONG OTHER THINGS, THE SUSPECTED INFIDELITY OF APPELLANT'S
HUSBAND, AND CULMINATING IN THE HUSBAND'S FINAL REJECTION OF HIS WIFE'S
EFFORTS AT RECONCILIATION.  IT IS CLAIMED, IN SUBSTANCE, THAT WOMEN
JURORS WOULD HAVE BEEN MORE UNDERSTANDING OR COMPASSIONATE THAN MEN IN
ASSESSING THE QUALITY OF APPELLANT'S ACT AND HER DEFENSE OF "TEMPORARY
INSANITY."  NO CLAIM IS MADE THAT THE JURY AS CONSTITUTED WAS OTHERWISE
AFFLICTED BY ANY ELEMENTS OF SUPPOSED UNFAIRNESS.  CF. IRVIN V. DOWD,
366 U.S. 717. 

OF COURSE, THESE PREMISES MISCONCEIVE THE SCOPE OF THE RIGHT TO AN
IMPARTIALLY SELECTED JURY ASSURED BY THE FOURTEENTH AMENDMENT.  THAT
RIGHT DOES NOT ENTITLE ONE ACCUSED OF CRIME TO A JURY TAILORED TO THE
CIRCUMSTANCES OF THE PARTICULAR CASE, WHETHER RELATING TO THE SEX OR
OTHER CONDITION OF THE DEFENDANT, OR TO THE NATURE OF THE CHARGES TO BE
TRIED.  IT REQUIRES ONLY THAT THE JURY BE INDISCRIMINATELY DRAWN FROM
AMONG THOSE ELIGIBLE IN THE COMMUNITY FOR JURY SERVICE, UNTRAMMELLED BY
ANY ARBITRARY AND SYSTEMATIC EXCLUSIONS.  SEE FAY V. NEW YORK, 332 U.S.
261, 284-285, AND THE CASES CITED THEREIN.  THE RESULT OF THIS APPEAL
MUST THEREFORE DEPEND ON WHETHER SUCH AN EXCLUSION OF WOMEN FROM JURY
SERVICE HAS BEEN SHOWN. 

                                             I. 

WE ADDRESS OURSELVES FIRST TO APPELLANT'S CHALLENGE TO THE STATUTE ON
ITS FACE. 

SEVERAL OBSERVATIONS SHOULD INITIALLY BE MADE.  WE OF COURSE
RECOGNIZE THAT THE FOURTEENTH AMENDMENT REACHES NOT ONLY ARBITRARY
CLASS EXCLUSIONS FROM JURY SERVICE BASED ON RACE OR COLOR, BUT ALSO ALL
OTHER EXCLUSIONS WHICH "SINGLE OUT" ANY CLASS OF PERSONS "FOR DIFFERENT
TREATMENT NOT BASED ON SOME REASONABLE CLASSIFICATION."  HERNANDEZ V.
TEXAS, 347 U.S. 475, 478.  WE NEED NOT, HOWEVER, ACCEPT APPELLANT'S
INVITATION TO CANVASS IN THIS CASE THE CONTINUING VALIDITY OF THIS
COURT'S DICTUM IN STRAUDER V. WEST VIRGINIA, 100 U.S. 303, 310, TO THE
EFFECT THAT A STATE MAY CONSTITUTIONALLY "CONFINE" JURY DUTY "TO
MALES."  THIS CONSTITUTIONAL PROPOSITION HAS GONE UNQUESTIONED FOR MORE
THAN EIGHTY YEARS IN THE DECISIONS OF THE COURT, SEE FAY V. NEW YORK,
SUPRA, AT 289-290, AND HAD BEEN REFLECTED, UNTIL 1957, IN CONGRESSIONAL
POLICY RESPECTING JURY SERVICE IN THE FEDERAL COURTS THEMSELVES.  (FN2)
EVEN WERE IT TO BE ASSUMED THAT THIS QUESTION IS STILL OPEN TO DEBATE,
THE PRESENT CASE TENDERS NARROWER ISSUES. 

MANIFESTLY, FLORIDA'S SEC. 40.01(1) DOES NOT PURPORT TO EXCLUDE WOMEN
FROM STATE JURY SERVICE.  RATHER, THE STATUTE "GIVES TO WOMEN THE
PRIVILEGE TO SERVE BUT DOES NOT IMPOSE SERVICE AS A DUTY."  FAY V. NEW
YORK, SUPRA, AT 277.  IT ACCORDS WOMEN AN ABSOLUTE EXEMPTION FROM JURY
SERVICE UNLESS THEY EXPRESSLY WAIVE THAT PRIVILEGE.  THIS IS NOT TO
SAY, HOWEVER, THAT WHAT IN FORM MAY BE ONLY AN EXEMPTION OF A
PARTICULAR CLASS OF PERSONS CAN IN NO CIRCUMSTANCES BE REGARDED AS AN
EXCLUSION OF THAT CLASS.  WHERE, AS HERE, AN EXEMPTION OF A CLASS IN
THE COMMUNITY IS ASSERTED TO BE IN SUBSTANCE AN EXCLUSIONARY DEVICE,
THE RELEVANT INQUIRY IS WHETHER THE EXEMPTION ITSELF IS BASED ON SOME
REASONABLE CLASSIFICATION AND WHETHER THE MANNER IN WHICH IT IS
EXERCISABLE RESTS ON SOME RATIONAL FOUNDATION. 

IN THE SELECTION OF JURORS FLORIDA HAS DIFFERENTIATED BETWEEN MEN AND
WOMEN IN TWO RESPECTS.  IT HAS GIVEN WOMEN AN ABSOLUTE EXEMPTION FROM
JURY DUTY BASED SOLELY ON THEIR SEX, NO SIMILAR EXEMPTION OBTAINING AS
TO MEN.  (FN3)  AND IT HAS PROVIDED FOR ITS EFFECTUATION IN A MANNER
LESS ONEROUS THAN THAT GOVERNING EXEMPTIONS EXERCISABLE BY MEN:  WOMEN
ARE NOT TO BE PUT ON THE JURY LIST UNLESS THEY HAVE VOLUNTARILY
REGISTERED FOR SUCH SERVICE; MEN, ON THE OTHER HAND, EVEN IF ENTITLED
TO AN EXEMPTION, ARE TO BE INCLUDED ON THE LIST UNLESS THEY HAVE FILED
A WRITTEN CLAIM OF EXEMPTION AS PROVIDED BY LAW.  (FN4)  FLA. STAT.,
1959, SEC. 40.10. 

IN NEITHER RESPECT CAN WE CONCLUDE THAT FLORIDA'S STATUTE IS NOT
"BASED ON SOME REASONABLE CLASSIFICATION," AND THAT IT IS THUS INFECTED
WITH UNCONSTITUTIONALITY.  DESPITE THE ENLIGHTENED EMANCIPATION OF
WOMEN FROM THE RESTRICTIONS AND PROTECTIONS OF BYGONE YEARS, AND THEIR
ENTRY INTO MANY PARTS OF COMMUNITY LIFE FORMERLY CONSIDERED TO BE
RESERVED TO MEN, WOMAN IS STILL REGARDED AS THE CENTER OF HOME AND
FAMILY LIFE.  WE CANNOT SAY THAT IT IS CONSTITUTIONALLY IMPERMISSIBLE
FOR A STATE, ACTING IN PURSUIT OF THE GENERAL WELFARE, TO CONCLUDE THAT
A WOMAN SHOULD BE RELIEVED FROM THE CIVIC DUTY OF JURY SERVICE UNLESS
SHE HERSELF DETERMINES THAT SUCH SERVICE IS CONSISTENT WITH HER OWN
SPECIAL RESPONSIBILITIES. 

FLORIDA IS NOT ALONE IN SO CONCLUDING.  WOMEN ARE NOW ELIGIBLE FOR
JURY SERVICE IN ALL BUT THREE STATES OF THE UNION.  (FN5)  OF THE FORTY
SEVEN STATES WHERE WOMEN ARE ELIGIBLE, SEVENTEEN BESIDES FLORIDA, AS
WELL AS THE DISTRICT OF COLUMBIA, HAVE ACCORDED WOMEN AN ABSOLUTE
EXEMPTION BASED SOLELY ON THEIR SEX, EXERCISABLE IN ONE FORM OR
ANOTHER.  (FN6)  IN TWO OF THESE STATES, AS IN FLORIDA, THE EXEMPTION
IS AUTOMATIC, UNLESS A WOMAN VOLUNTEERS FOR SUCH SERVICE.  (FN7)  IT IS
TRUE, OF COURSE, THAT FLORIDA COULD HAVE LIMITED THE EXEMPTION, AS SOME
OTHER STATES HAVE DONE, ONLY TO WOMEN WHO HAVE FAMILY
RESPONSIBILITIES.  (FN8)  BUT WE CANNOT REGARD IT AS IRRATIONAL FOR A
STATE LEGISLATURE TO CONSIDER PREFERABLE A BROAD EXEMPTION, WHETHER
BORN OF THE STATE'S HISTORIC PUBLIC POLICY OR OF A DETERMINATION THAT
IT WOULD NOT BE ADMINISTRATIVELY FEASIBLE TO DECIDE IN EACH INDIVIDUAL
INSTANCE WHETHER THE FAMILY RESPONSIBILITIES OF A PROSPECTIVE FEMALE
JUROR WERE SERIOUS ENOUGH TO WARRANT AN EXEMPTION. 

LIKEWISE WE CANNOT SAY THAT FLORIDA COULD NOT REASONABLY CONCLUDE
THAT FULL EFFECTUATION OF THIS EXEMPTION MADE IT DESIRABLE TO RELIEVE
WOMEN OF THE NECESSITY OF AFFIRMATIVELY CLAIMING IT, WHILE AT THE SAME
TIME REQUIRING OF MEN AN ASSERTION OF THE EXEMPTIONS AVAILABLE TO
THEM.  MOREOVER, FROM THE STANDPOINT OF ITS OWN ADMINISTRATIVE CONCERNS
THE STATE MIGHT WELL CONSIDER THAT IT WAS "IMPRACTICAL TO COMPEL LARGE
NUMBERS OF WOMEN, WHO HAVE AN ABSOLUTE EXEMPTION, TO COME TO THE
CLERK'S OFFICE FOR EXAMINATION SINCE THEY SO GENERALLY ASSERT THEIR
EXEMPTION."  FAY V. NEW YORK, SUPRA, AT 277; COMPARE 28 U.S.C. SEC.
1862; H.R. REP. NO. 308, 80TH CONG., 1ST SESS. A156 (1947).  (FN9) 

APPELLANT ARGUES THAT WHATEVER MAY HAVE BEEN THE DESIGN OF THIS
FLORIDA ENACTMENT, THE STATUTE IN PRACTICAL OPERATION RESULTS IN AN
EXCLUSION OF WOMEN FROM JURY SERVICE, BECAUSE WOMEN, LIKE MEN, CAN BE
EXPECTED TO BE AVAILABLE FOR JURY SERVICE ONLY UNDER COMPULSION.  IN
THIS CONNECTION SHE POINTS OUT THAT BY 1957, WHEN THIS TRIAL TOOK
PLACE, ONLY SOME 220 WOMEN OUT OF APPROXIMATELY 46,000 REGISTERED
FEMALE VOTERS IN HILLSBOROUGH COUNTY - CONSTITUTING ABOUT 40 PER CENT
OF THE TOTAL VOTING POPULATION OF THAT COUNTY (FN10) - HAD VOLUNTEERED
FOR JURY DUTY SINCE THE LIMITATION OF JURY SERVICE TO MALES, SEE HALL
V. FLORIDA, 136 FLA. 644, 662-665, 187 SO. 392, 400-401, WAS REMOVED BY
SEC. 40.01(1) IN 1949.  FLA. LAWS 1949, C. 25,126. 

THIS ARGUMENT, HOWEVER, IS SURELY BESIDE THE POINT.  GIVEN THE
REASONABLENESS OF THE CLASSIFICATION INVOLVED IN SEC. 40.01(1), THE
RELATIVE PAUCITY OF WOMEN JURORS DOES NOT CARRY THE CONSTITUTIONAL
CONSEQUENCE APPELLANT WOULD HAVE IT BEAR.  "CIRCUMSTANCES OR CHANCE MAY
WELL DICTATE THAT NO PERSONS IN A CERTAIN CLASS WILL SERVE ON A
PARTICULAR JURY OR DURING SOME PARTICULAR PERIOD."  HERNANDEZ V. TEXAS,
SUPRA, AT 482. 

WE CANNOT HOLD THIS STATUTE AS WRITTEN OFFENSIVE TO THE FOURTEENTH
AMENDMENT. 

                   II. 

APPELLANT'S ATTACK ON THE STATUTE AS APPLIED IN THIS CASE FARES NO
BETTER. 

IN THE YEAR HERE RELEVANT FLA. STAT., 1955, SEC. 40.10 IN CONJUNCTION
WITH SEC. 40.02 REQUIRED THE JURY COMMISSIONERS, WITH THE AID OF THE
LOCAL CIRCUIT COURT JUDGES AND CLERK, TO COMPILE ANNUALLY A JURY LIST
OF 10,000 INHABITANTS QUALIFIED TO BE JURORS.  IN 1957 THE EXISTING
HILLSBOROUGH COUNTY LIST HAD BECOME EXHAUSTED TO THE EXTENT OF SOME
3,000 JURORS.  THE NEW LIST WAS CONSTRUCTED BY TAKING OVER FROM THE OLD
LIST THE REMAINING SOME 7,000 JURORS, INCLUDING 10 WOMEN, AND ADDING
SOME 3,000 NEW MALE JURORS TO BUILD UP THE LIST TO THE REQUISITE
10,000.  AT THE TIME SOME 220 WOMEN HAD REGISTERED FOR JURY DUTY IN
THIS COUNTY, INCLUDING THOSE TAKEN OVER FROM THE EARLIER LIST. 

THE REPRESENTATIVE OF THE CIRCUIT COURT CLERK'S OFFICE, A WOMAN, WHO
ACTUALLY MADE UP THE LIST TESTIFIED AS FOLLOWS AS TO HER REASON FOR NOT
ADDING OTHERS OF THE 220 "REGISTERED" WOMEN TO THE 1957 LIST:  "WELL,
THE REASON I PLACED TEN IS I WENT BACK TWO OR THREE, FOUR YEARS, AND
NOTICED HOW MANY WOMEN THEY HAD PUT ON BEFORE AND I PUT ON
APPROXIMATELY THE SAME NUMBER."  SHE FURTHER TESTIFIED:  "MR. LOCKHART
(ONE OF THE JURY COMMISSIONERS) TOLD ME AT ONE TIME TO GO BACK
APPROXIMATELY TWO OR THREE YEARS TO GET THE NAMES BECAUSE THEY WERE
RECENT WOMEN THAT HAD SIGNED UP, BECAUSE IN THIS BOOK (THE FEMALE JUROR
REGISTER), THERE ARE NO DATES AT THE BEGINNING OF IT, SO WE CAN'T - I
DON'T KNOW EXACTLY HOW FAR BACK THEY DO GO AND SO I JUST WENT BACK TWO
OR THREE YEARS TO GET MY NAMES."  WHEN READ IN LIGHT OF MR. LOCKHART'S
TESTIMONY, PRINTED IN THE MARGIN, (FN11) IT IS APPARENT THAT THE IDEA
WAS TO AVOID LISTING WOMEN WHO THOUGH REGISTERED MIGHT BE DISQUALIFIED
BECAUSE OF ADVANCED AGE OR FOR OTHER REASONS. 

APPELLANT'S SHOWING FALLS FAR SHORT OF GIVING THIS PROCEDURE A
SINISTER COMPLEXION.  IT IS TRUE OF COURSE THAT THE PROPORTION OF WOMEN
ON THE JURY LIST (10) TO THE TOTAL OF THOSE REGISTERED FOR SUCH DUTY
(SOME 220) WAS LESS THAN 5%, AND NOT 27% AS THE TRIAL COURT MISTAKENLY
SAID AND THE STATE APPELLATE COURT MAY HAVE THOUGHT.  BUT WHEN THOSE
LISTED ARE COMPARED WITH THE 30 OR 35 WOMEN WHO HAD REGISTERED SINCE
1952 (NOTE 11, P. 66) THE PROPORTION RISES TO AROUND 33%, HARDLY
SUGGESTIVE OF AN ARBITRARY, SYSTEMATIC EXCLUSIONARY PURPOSE.  EQUALLY
UNIMPRESSIVE IS APPELLANT'S SUGGESTED "MALE" PROPORTION WHICH WE ARE
ASKED TO CONTRAST WITH THE FEMALE PERCENTAGE.  THE MALE PROPORTION IS
DERIVED BY COMPARING THE NUMBER OF MALES CONTAINED ON THE JURY LIST
WITH THE TOTAL NUMBER OF MALE ELECTORS IN THE COUNTY.  BUT SURELY THE
RESULTING PROPORTION IS MEANINGLESS WHEN THE RECORD DOES NOT EVEN
REVEAL HOW MANY OF SUCH ELECTORS WERE QUALIFIED FOR JURY SERVICE, HOW
MANY HAD BEEN GRANTED EXEMPTIONS (NOTES 3 AND 4, P. 61), AND HOW MANY
ON THE LIST HAD BEEN EXCUSED WHEN FIRST CALLED.  (ID.) 

THIS CASE IN NO WAY RESEMBLES THOSE INVOLVING RACE OR COLOR IN WHICH
THE CIRCUMSTANCES SHOWN WERE FOUND BY THIS COURT TO COMPEL A CONCLUSION
OF PURPOSEFUL DISCRIMINATORY EXCLUSIONS FROM JURY SERVICE.  E.G.,
HERNANDEZ V. TEXAS, SUPRA; NORRIS V. ALABAMA, 294 U.S. 587; SMITH V.
TEXAS, 311 U.S. 128; HILL V. TEXAS, 316 U.S. 400; EUBANKS V. LOUISIANA,
356 U.S. 584.  THERE IS PRESENT HERE NEITHER THE UNFORTUNATE ATMOSPHERE
OF ETHNIC OR RACIAL PREJUDICES WHICH UNDERLAY THE SITUATIONS DEPICTED
IN THOSE CASES, NOR THE LONG COURSE OF DISCRIMINATORY ADMINISTRATIVE
PRACTICE WHICH THE STATISTICAL SHOWING IN EACH OF THEM EVINCED.    IN
THE CIRCUMSTANCES HERE DEPICTED, IT INDEED "TAXES OUR CREDULITY,"
HERNANDEZ V. TEXAS, SUPRA, AT 482, TO ATTRIBUTE TO THESE ADMINISTRATIVE
OFFICIALS A DELIBERATE DESIGN TO EXCLUDE THE VERY CLASS WHOSE
ELIGIBILITY FOR JURY SERVICE THE STATE LEGISLATURE, AFTER MANY YEARS OF
CONTRARY POLICY, HAD DECLARED ONLY A FEW YEARS BEFORE.  (SEE P. 64,
SUPRA.)  IT IS SUFFICIENTLY EVIDENT FROM THE RECORD THAT THE PRESENCE
ON THE JURY LIST OF NO MORE THAN TEN OR TWELVE WOMEN IN THE EARLIER
YEARS, AND THE FAILURE TO ADD IN 1957 MORE WOMEN TO THOSE ALREADY ON
THE LIST, ARE ATTRIBUTABLE NOT TO ANY DISCRIMINATORY MOTIVE, BUT TO A
PURPOSE TO PUT ON THE LIST ONLY THOSE WOMEN WHO MIGHT BE EXPECTED TO BE
QUALIFIED FOR SERVICE IF ACTUALLY CALLED.  NOR IS THERE THE SLIGHTEST
SUGGESTION THAT THE LIST WAS THE PRODUCT OF ANY PLAN TO PLACE ON IT
ONLY WOMEN OF A PARTICULAR ECONOMIC OR OTHER COMMUNITY OR
ORGANIZATIONAL GROUP.  CF. THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217;
GLASSER V. UNITED STATES, 315 U.S. 60, 83-87.  AND SEE ALSO FAY V. NEW
YORK, SUPRA, AT 287. 

FINALLY, THE DISPROPORTION OF WOMEN TO MEN ON THE LIST INDEPENDENTLY
CARRIES NO CONSTITUTIONAL SIGNIFICANCE.  IN THE ADMINISTRATION OF THE
JURY LAWS PROPORTIONAL CLASS REPRESENTATION IS NOT A CONSTITUTIONALLY
REQUIRED FACTOR.  SEE ATKINS V. TEXAS, 325 U.S. 398, 403; CASSELL V.
TEXAS, 339 U.S. 282, 286-287; FAY V. NEW YORK, SUPRA, AT 290-291. 

FINDING NO SUBSTANTIAL EVIDENCE WHATEVER IN THIS RECORD THAT FLORIDA
HAS ARBITRARILY UNDERTAKEN TO EXCLUDE WOMEN FROM JURY SERVICE, A
SHOWING WHICH IT WAS INCUMBENT ON APPELLANT TO MAKE, HERNANDEZ V.
TEXAS, SUPRA, AT 479-480; FAY V. NEW YORK, SUPRA, AT 285, WE MUST
SUSTAIN THE JUDGMENT OF THE SUPREME COURT OF FLORIDA.  CF. AKINS V.
TEXAS, SUPRA.  AFFIRMED. 

FN1  JURORS MUST BE:  "PERSONS OVER THE AGE OF TWENTY-ONE YEARS, WHO
ARE CITIZENS OF THIS STATE, AND WHO HAVE RESIDED IN THE STATE FOR ONE
YEAR AND IN THEIR RESPECTIVE COUNTIES FOR SIX MONTHS, AND WHO ARE DULY
QUALIFIED ELECTORS OF THEIR RESPECTIVE COUNTIES  ...  ." 

FN2  FROM THE FIRST JUDICIARY ACT OF 1789, SEC. 29, 1 STAT. 73, 88,
TO THE CIVIL RIGHTS ACT OF 1957, 71 STAT. 634, 638, 28 U.S.C. SEC. 1861
- A PERIOD OF 168 YEARS - THE INCLUSION OR EXCLUSION OF WOMEN ON
FEDERAL JURIES DEPENDED UPON WHETHER THEY WERE ELIGIBLE FOR JURY
SERVICE UNDER THE LAW OF THE STATE WHERE THE FEDERAL TRIBUNAL SAT.  SEE
BALLARD V. UNITED STATES, 329 U.S. 187, 191-192; GLASSER V. UNITED
STATES, 315 U.S. 60, 64-65.  BY THE CIVIL RIGHTS ACT OF 1957 CONGRESS
MADE ELIGIBLE FOR JURY SERVICE "ANY CITIZEN OF THE UNITED STATES,"
POSSESSED OF SPECIFIED QUALIFICATIONS, 28 U.S.C. SEC. 1861, THEREBY FOR
THE FIRST TIME MAKING QUALIFICATIONS FOR FEDERAL JURY SERVICE WHOLLY
INDEPENDENT OF THOSE PRESCRIBED BY STATE LAW.  THE EFFECT OF THAT
STATUTE WAS TO MAKE WOMEN ELIGIBLE FOR FEDERAL JURY SERVICE EVEN THOUGH
INELIGIBLE UNDER STATE LAW.  SEE UNITED STATES V. WILSON, 158 F. SUPP.
442, AFF'D, 255 F.2D 686.  THERE IS NO INDICATION THAT SUCH
CONGRESSIONAL ACTION WAS IMPELLED BY CONSTITUTIONAL CONSIDERATIONS. 
CF. FAY V. NEW YORK, SUPRA, AT 290. 

FN3  MEN MAY BE EXEMPT BECAUSE OF AGE, BODILY INFIRMITY, OR BECAUSE
THEY ARE ENGAGED IN CERTAIN OCCUPATIONS.  FLA. STAT., 1959, SEC.
40.08. 

FN4  UNDER FLA. STAT., 1959, SEC. 40.12, EVERY PERSON CLAIMING AN
EXEMPTION, OTHER THAN AS PROVIDED WITH RESPECT TO WOMEN IN SEC.
40.01(1), MUST FILE, ANNUALLY, BEFORE DECEMBER 31 WITH THE CLERK OF THE
CIRCUIT COURT AN AFFIDAVIT OF EXEMPTION AND THE GROUNDS ON WHICH SUCH
CLAIM IS BASED.  THE AFFIDAVIT IS FORWARDED TO THE JURY COMMISSIONERS,
WHO, IF THE AFFIDAVIT IS FOUND SUFFICIENT, THEN OMIT THE AFFIANT FROM
THE JURY LIST FOR THE SUCCEEDING CALENDAR YEAR.  IN CASE EXEMPTION IS
DENIED, THE CLAIM TO IT MAY BE RENEWED IN ANY COURT IN WHICH THE
AFFIANT IS SUMMONED AS A JUROR DURING THAT YEAR.  THE EXEMPTION FOR
SUCH YEAR IS LOST, HOWEVER, BY FAILURE TO FILE THE REQUIRED AFFIDAVIT
BEFORE THE END OF THE PRECEDING YEAR. 

FN5  ALABAMA, ALA. CODE, 1940 (RECOMPILED VOL. 1958), TIT. 30, SEC.
21; MISSISSIPPI, MISS.  CODE ANN., 1942 (RECOMPILED VOL. 1956), SEC.
1762; SOUTH CAROLINA, S.C. CODE, 1952, SEC. 38-52. 

FN6  ALASKA, ALASKA COMP. LAWS ANN., 1949, SEC. 55-7-24 EIGHTH;
ARKANSAS, ARK. STAT., 1947, SEC. 39-112; DISTRICT OF COLUMBIA, D.C.
CODE, 1961, TIT. 11, SEC. 1418; GEORGIA, GA. CODE ANN., 1933 (SUPP.
1958), SEC. 59-124; IDAHO, IDAHO CODE, 1948, SEC. 2-411 AND (SUPP.
1961) SEC. 2-304; KANSAS, KAN. GEN. STAT., 1949, SEC. 43-116, SEC. 43
117; LOUISIANA, LA. REV. STAT., 1950, SEC. 15:172.1; MINNESOTA, MINN.
STAT. ANN., 1947, SEC. 593.04; (SUPP. 1960) SEC. 628.49; MISSOURI, MO.
CONST., ART. I, SEC. 22(B); NEVADA, NEV. REV. STAT., 1957, SEC.
6.020(3); NEW HAMPSHIRE, N.H. REV. STAT. ANN., 1955, SEC. 500:1; NEW
YORK, MCKINNEY'S N.Y. LAWS, JUDICIARY LAW (SUPP. 1961), SEC. 507(7);
NORTH DAKOTA, N.D. CENT. CODE, 1960, SEC. 27-09-04; RHODE ISLAND, R.I.
GEN. LAWS, 1956, SEC. 9-9-11; TENNESSEE, TENN. CODE ANN., 1955, SEC. 22
101, SEC. 22-108; VIRGINIA, VA. CODE, 1950 (REPLACEMENT VOL. 1957,
SUPP. 1960), SEC. 8-178(30); WASHINGTON, WASH. REV. CODE, 1951, SEC.
2.36.080; WISCONSIN, WIS. STAT. ANN., 1957, SEC. 6.015(2). 

IN TWENTY-ONE STATES WOMEN, GENERALLY SPEAKING, ARE ELIGIBLE FOR JURY
SERVICE ON THE SAME BASIS AND CONSIDERATIONS AS MEN:  ARIZONA, ARIZ.
REV. STAT. ANN., 1956, SEC. 21-202, SEC.  21-336; CALIFORNIA, CALIF.
CODE CIV. PROC., 1954, SEC. 198, SEC. 200, SEC. 201; COLORADO, COLO.
REV. STAT., 1953, SEC. 78-1-1(2), SEC. 78-1-3, SEC. 78-1-7; DELAWARE,
DEL. CODE ANN., 1953, TIT. 10, SEC. 4504; HAWAII, HAWAII CONST., ART.
I, SEC. 12; HAWAII REV. LAWS, 1955, SEC. 221-3, SEC. 221-4; ILLINOIS,
SMITH-HURD'S ILL. ANN. STAT., 1935 (SUPP. 1960), C. 78, SEC. 4;
INDIANA, BURNS' IND. ANN. STAT., 1933 (REPLACEMENT VOL. 1946; SUPP.
1961), SEC. 4-3317; IOWA, IOWA CODE ANN., 1950, SEC. 607.2, SEC. 607.3;
KENTUCKY, KY. REV. STAT., 1960, SEC. 29.035; MAINE, ME.  REV. STAT.,
1954, C. 116, SEC. 7; MARYLAND, MICHIE'S MD. ANN. CODE, 1957, ART. 51,
SEC. 3 AND (SUPP. 1961) ART. 51, SEC. 8 (WOMEN STILL HAVE AN ABSOLUTE
EXEMPTION IN FOUR COUNTIES); MICHIGAN, MICH. STAT. ANN., 1938 (SUPP.
1959), SEC. 27.263, SEC. 27.264; MONTANA, MONT. REV.  CODE ANN., 1947,
SEC. 93-1304, SEC. 93-1305; NEW JERSEY, N.J. STAT. ANN., 1952 (SUPP.
1960), SEC. 2A:69-1, SEC. 2A:69-2; NEW MEXICO, N.M. STAT. ANN., 1953,
SEC. 19-1-2, SEC. 19-1-31; OHIO, PAGE'S OHIO REV. CODE ANN., 1954, SEC.
2313.12, SEC. 2313.16; OREGON, ORE.  REV.  STAT., 1959, SEC. 10.040,
SEC. 10.050; PENNSYLVANIA, PURDON'S PA. STAT. ANN., 1930, TIT. 17, SEC.
1279, SEC. 1280; SOUTH DAKOTA, S.D. CODE, 1939 (SUPP. 1960), SEC.
32.1001, SEC. 32.1002; VERMONT, VT. STAT. ANN., 1958, TIT. 12, SEC.
1410; WEST VIRGINIA, W.VA. CODE, 1955 (SUPP. 1960), SEC. 5262. 

FN7  LOUISIANA, LA. REV. STAT., 1950, SEC. 15:172.1; NEW HAMPSHIRE,
N.H. REV. STAT. ANN., 1955, SEC. 500:1. 

FN8  IN EIGHT STATES WOMEN MAY BE EXCUSED IF THEY HAVE FAMILY
RESPONSIBILITIES WHICH WOULD MAKE JURY SERVICE AN UNDUE HARDSHIP:
CONNECTICUT, CONN. GEN. STAT. REV., 1958, C. 884, SEC. 51-218;
MASSACHUSETTS, MASS. GEN. LAWS ANN., 1959, C. 234, SEC. 1, SEC. 1A;
NEBRASKA, NEB.  REV. STAT., 1943 (REISSUE VOL. 1956), SEC. 25-1601.01,
SEC. 25-1601.02; NORTH CAROLINA, N.C.  GEN. STAT., 1943 (RECOMPILED
VOL. 1953; SUPP. 1959), SEC. 9-19; OKLAHOMA, OKLA. STAT. ANN., 1951
(SUPP. 1960), TIT. 38, SEC. 28; TEXAS, VERNON'S TEX. REV. CIV. STAT.,
1926 (SUPP. 1960), ART. 2135; UTAH, UTAH CODE ANN., 1953, SEC. 78-46
10(14); WYOMING, WYO. COMP. STAT., 1945 (SUPP. 1957), SEC. 12-104. 

FN9  28 U.S.C. SEC. 1862 EXEMPTS FROM FEDERAL JURY DUTY THOSE IN
ACTIVE SERVICE IN THE ARMED FORCES, MEMBERS OF FEDERAL OR LOCAL POLICE
AND FIRE DEPARTMENTS, AND CERTAIN ACTIVELY ENGAGED FEDERAL, STATE AND
LOCAL PUBLIC OFFICIALS.  THE HOUSE REPORT ON THE BILL STATES: 

"THIS SECTION (SEC. 1862) MAKES PROVISION FOR SPECIFIC EXEMPTION OF
CLASSES OF CITIZENS USUALLY EXCUSED FROM JURY SERVICE IN THE INTEREST
OF THE PUBLIC HEALTH, SAFETY, OR WELFARE.  THE INCLUSION IN THE JURY
LIST OF PERSONS SO EXEMPTED USUALLY SERVES ONLY TO WASTE THE TIME OF
THE COURT." 

FN10  114,247, OF WHICH SOME 68,000 WERE MEN. 

FN11  MR. LOCKHART TESTIFIED: 

"Q.  ALL RIGHT.  NOW, GETTING BACK TO MARCH 8, 1957, HOW MANY
ELIGIBLE FEMALE WOMEN WERE REGISTERED IN THAT BOOK? 

"A.  WELL, I DON'T KNOW HOW MANY WERE QUALIFIED, BUT THEY HAVE THE
NAMES ON THERE OF ABOUT 220. 

"Q.  APPROXIMATELY 220? 

"A.  AS I SAY, FROM 1952, ON, SINCE I WENT BACK ON THE SECOND TIME,
THERE HAS ONLY BEEN ABOUT 35 THAT HAS REGISTERED WITH THE CLERK OF THE
CIRCUIT COURT. 

"Q.  ALL RIGHT, SIR.  NOW, WERE THERE ANY ELIGIBLE FEMALE NAMES LEFT
OFF OF THIS JURY LIST WHICH YOU'VE PREPARED? 

"A.  THERE PROBABLY WERE. 

"Q.  ON MARCH 8, 1957? 

"A.  FROM THE LAST FOUR YEARS, WE HAVE BEEN AVERAGING ABOUT TEN TO
TWELVE ON EACH LIST. 

"Q.  ALL RIGHT.  WHY IS THAT, MR. LOCKHART? 

"A.  BECAUSE SINCE 1952, THERE HAS ONLY BEEN ABOUT 30, 35 THAT'S
QUALIFIED TO, I MEAN, WENT DOWN AND REGISTERED FOR JURY DUTY.  YOU
DON'T HAVE MUCH TO CHOOSE FROM. 

"Q.  WELL, NOW, HOW DO YOU SELECT WOMEN'S NAMES FROM THAT
REGISTRATION BOOK? 

"A. WELL, WE JUST HAVE TO TAKE THE NAMES ON THERE, THAT'S ALL. 

"Q.  WELL, YOU'VE USED SOME SYSTEM WITH REFERENCE TO THAT BOOK, DO YOU
NOT? 

"A.  WELL, WE TRY TO CHECK THEM THROUGH.  THEY DID BEFORE THIS LAST
YEAR.  I TRIED TO CHECK THEM THROUGH THE CITY DIRECTORY.  YOU'LL FIND
THAT A GOOD MANY OF THE WOMEN FOLKS NOW ARE OVER 65.  IN FACT ONE OF
THEM IS APPROXIMATELY EIGHTY. 

"Q.  WHAT I AM TRYING TO GET AT, MR. LOCKHART, IS THIS.  IF THERE
WERE ONLY TEN WOMEN'S NAMES, AS YOU TESTIFIED, WENT INTO THE PRESENT
JURY LIST AND THERE WERE AT THE TIME ABOUT 220 ELIGIBLE WOMEN WHO HAD
REGISTERED FOR JURY SERVICE, WHY THE DIFFERENCE BETWEEN TEN AND 220
WHICH WERE APPARENTLY ELIGIBLE? 

"A.  WELL, THEY HAVE BEEN PUT OVER A SPREAD OF YEARS. 

"Q. WELL, HOW DO YOU DO THAT? 

"A.  WELL, EVERY YEAR, THERE IS A NEW JURY LIST AND WE PUT ON TEN OR
TWELVE EVERY JURY LIST.  IN FACT, ALONG SEVEN OR EIGHT YEARS AGO, IT
WAS PRETTY HARD TO SEE WHETHER - THE STATUS CHANGED SO RAPIDLY, IT WAS
PRETTY HARD TO KNOW WHETHER THEY WOULD BE QUALIFIED OR NOT. 

"Q.  WOULD I BE CORRECT, THEN, IN SAYING THAT YOU OMITTED
APPROXIMATELY 210 ELIGIBLE WOMEN'S NAMES WHEN YOU COMPILED THIS LIST? 

"A.  I WOULDN'T SAY THEY WERE ELIGIBLE BECAUSE WE DIDN'T CHECK THEM. 
WE DON'T CHECK EVERY NAME ON THE REGISTRATION BOOKS. 

"Q. I'M TALKING ABOUT THIS REGISTRATION BOOK IN THE CLERK OF THE
CIRCUIT COURT'S OFFICE, MR. LOCKHART, WHERE THE WOMEN ARE REQUIRED TO
COME THERE AND REGISTER FOR JURY DUTY? 

"A.  YOU CAN SAY IT'S 220 NAMES ON THAT BOOK.  THERE IS. 

"Q.  ALL RIGHT.  IF THERE ARE 220 ELIGIBLE WOMEN ON THAT BOOK: 

"A.  I DON'T KNOW IF THEY ARE ELIGIBLE OR NOT. 

"Q.  WHAT I WANT TO KNOW, THEN, IS WHY YOU PICKED JUST TEN OUT OF
THAT 220 TO GO INTO THIS JURY LIST? 

"A.  WELL, WE PICKED - WE HAVE AVERAGE, FOR THE LAST FOUR YEARS, TEN
TO TWELVE ON EACH LIST. 

     *       *         *         *         * 

"Q.  MR. LOCKHART, IN MAKING UP THIS LIST, JURY LIST, FROM WHICH THE
PRESENT PANEL WAS DRAWN, DID YOU ATTEMPT TO COMPLY WITH FLORIDA
STATUTE, SECTION 40.01, SUB-SECTION (1), IN MAKING UP THAT LIST? 

"A.  WOULD YOU MIND READING IT TO ME? 

"Q.  WELL, THAT'S THE STATUTE, MR. LOCKHART, GOVERNING THE
QUALIFICATIONS FOR JURORS AND I WILL READ IT, IF YOU LIKE.  (SEC. 40.01
READ.)  NOW, WHAT I AM ASKING, MR. LOCKHART, IS, DID YOU PURPORT TO
COMPLY WITH THAT STATUTE WHEN YOU PREPARED THIS JURY LIST? 

"A.  YES, SIR. 

"Q.  ALL RIGHT.  DID YOU PUT IN THIS LIST ON MARCH 8, 1957, ANY WOMEN
OR FEMALE'S NAMES WHO WERE REGISTERED VOTERS BUT WHO HAD NOT REGISTERED
WITH THE CLERK OF THE CIRCUIT COURT? 

"A.  IF IT WAS THERE, WE DIDN'T INTEND TO.  WE CHECKED THE
REGISTRATION.  THE LAW REQUIRES THAT TO BE ON REGISTRATION. 

"Q.  IN OTHER WORDS, YOU WOULD SAY THAT YOU DID NOT? 

"A.  YES.  THAT'S RIGHT.  I DOUBT WHAT, WITH THAT SMALL NUMBER OF
NAMES.  THEY WERE CHECKED WITH THE REGISTRATION OFFICE." 

THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS,
CONCURRING. 

WE CANNOT SAY FROM THIS RECORD THAT FLORIDA IS NOT MAKING A GOOD
FAITH EFFORT TO HAVE WOMEN PERFORM JURY DUTY WITHOUT DISCRIMINATION ON
THE GROUND OF SEX.  HENCE WE CONCUR IN THE RESULT, FOR THE REASONS SET
FORTH IN PART II OF THE COURT'S OPINION. 
..END :
























MCLEMORE V. MISSISSIPPI 368 U.S. 70 


NO. 410.  DECIDED NOVEMBER 20, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  241 MISS.  664, 125 SO. 2D 86, 126 SO. 2D
236. 


MCLEMORE V. MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















FRUHLING V. AMALGAMATED HOUSING CORP. 368 U.S. 70 


NO. 419.  DECIDED NOVEMBER 20, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  9 N.Y.2D 541, 175
N.E.2D 156. 


FRUHLING V. AMALGAMATED HOUSING CORP. ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















STILL V. NORFOLK & WESTERN RAILWAY CO. 368 U.S. 35 


NO. 48.  ARGUED OCTOBER 19, 1961 - DECIDED NOVEMBER 13, 1961 - REVERSED
AND REMANDED. 


1.  UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, A RAILROAD CANNOT
ESCAPE LIABILITY FOR PERSONAL INJURIES NEGLIGENTLY INFLICTED UPON AN
EMPLOYEE BY PROVING THAT HE HAD OBTAINED HIS JOB BY MAKING FALSE
REPRESENTATIONS UPON WHICH THE RAILROAD RIGHTFULLY RELIED IN HIRING
HIM.  PP. 35-46. 

2.  MINNEAPOLIS, ST. P.&S. STE.  M.R. CO. V. ROCK, 279 U.S. 410, MUST
BE LIMITED TO ITS PRECISE FACTS; AND, IN EACH CASE NOT INVOLVING THE
PRECISE KIND OF FRAUD THERE INVOLVED, THE TERMS "EMPLOYED" AND
"EMPLOYEE," AS USED IN THE ACT, MUST BE INTERPRETED ACCORDING TO THEIR
ORDINARY MEANING, EVEN THOUGH THE EMPLOYEE'S MISREPRESENTATIONS MAY
HAVE CONTRIBUTED TO THE INJURY OR EVEN TO THE ACCIDENT UPON WHICH HIS
CLAIM IS BASED.  PP. 37-46. 

STILL V. NORFOLK & WESTERN RAILWAY CO. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL EMPLOYERS' LIABILITY ACT (FN1) REQUIRES RAILROADS TO PAY
DAMAGES FOR PERSONAL INJURIES NEGLIGENTLY INFLICTED UPON THEIR
EMPLOYEES.  THE QUESTION THIS CASE PRESENTS IS WHETHER A RAILROAD CAN
ESCAPE THIS STATUTORY LIABILITY BY PROVING THAT AN EMPLOYEE SO INJURED
HAD OBTAINED HIS JOB BY MAKING FALSE REPRESENTATIONS UPON WHICH THE
RAILROAD RIGHTFULLY RELIED IN HIRING HIM. 

PETITIONER BROUGHT THIS ACTION IN A WEST VIRGINIA STATE COURT SEEKING
DAMAGES FOR PERSONAL INJURIES FROM THE RESPONDENT NORFOLK & WESTERN
RAILWAY COMPANY, FOR WHICH, AS OF THE DATE OF HIS ALLEGED INJURIES, HE
HAD WORKED CONTINUOUSLY, EXCEPT FOR A ONE-YEAR INTERRUPTION, FOR SOME
SIX YEARS.  BY SPECIAL PLEA, THE RAILROAD SET UP AS A DEFENSE THE
CONTENTION THAT PETITIONER WAS NOT "EMPLOYED" BY IT WITHIN THE MEANING
OF THE ACT (FN2) AND ALLEGED IN SUPPORT OF THIS DEFENSE:  (1) THAT
PETITIONER HAD MADE FALSE AND FRAUDULENT REPRESENTATIONS IN HIS
APPLICATION FOR EMPLOYMENT WITH REGARD TO HIS PHYSICAL CONDITION AND
OTHER MATTERS PERTINENT TO HIS ELIGIBILITY AND CAPACITY TO SERVE AS A
RAILROAD EMPLOYEE; (2) THAT PETITIONER WOULD NOT HAVE BEEN HIRED BUT
FOR THESE MISREPRESENTATIONS AND THE FACT THAT THEY MISLED THE
RAILROAD'S HIRING OFFICIALS; AND (3) THAT THE VERY PHYSICAL DEFECTS
WHICH HAD BEEN FRAUDULENTLY CONCEALED FROM THE RAILROAD CONTRIBUTED TO
THE INJURY UPON WHICH PETITIONER'S ACTION IS BASED.  PETITIONER'S
DEMURRER TO THIS PLEA WAS OVERRULED AND EVIDENCE BY BOTH PARTIES WAS
PRESENTED TO A JURY.  WHEN ALL THE EVIDENCE WAS IN, HOWEVER, THE TRIAL
COURT DIRECTED THE JURY TO BRING IN A VERDICT FOR THE DEFENDANT ON THE
GROUND THAT THE UNDISPUTED EVIDENCE SHOWED THAT THE RAILROAD HAD BEEN
DECEIVED INTO HIRING PETITIONER BY PETITIONER'S FRAUDULENT
MISREPRESENTATIONS AS TO HIS HEALTH AND THAT THESE MISREPRESENTATIONS
HAD A "DIRECT CAUSAL CONNECTION" WITH THE INJURIES UPON WHICH
PETITIONER'S ACTION IS BASED. 

THROUGHOUT THE PROCEEDINGS IN THE TRIAL COURT, PETITIONER CONTENDED
THAT NO VERDICT SHOULD BE DIRECTED AGAINST HIM ON THE GROUNDS, AMONG
OTHERS:  (1) THAT THE ALLEGATIONS OF FRAUD SET UP IN THE RAILROAD'S
SPECIAL PLEA WERE NOT SUFFICIENT IN LAW TO STATE A DEFENSE UNDER THE
ACT; AND (2) THAT EVEN IF THE PLEA WERE SUFFICIENT IN LAW, IT RESTED
UPON QUESTIONS OF FACT WHICH SHOULD BE SUBMITTED TO THE JURY.  ON WRIT
OF ERROR, THE WEST VIRGINIA SUPREME COURT OF APPEALS REFUSED TO
OVERTURN THE TRIAL COURT'S ACTION ON EITHER OF THESE TWO GROUNDS. 
THOUGH WE RECOGNIZED THAT THE CASE MIGHT POSSIBLY BE DISPOSED OF ON THE
SECOND OF THESE GROUNDS, WE GRANTED CERTIORARI TO CONSIDER THE
IMPORTANT QUESTION RAISED BY PETITIONER'S FIRST GROUND CONCERNING THE
PROPER INTERPRETATION, SCOPE AND APPLICATION OF THE FEDERAL EMPLOYERS'
LIABILITY ACT.  (FN3) 

THE RAILROAD'S PRIMARY CONTENTION, WHICH WAS ACCEPTED AS THE
PRINCIPAL BASIS OF THE ACTION OF THE TRIAL COURT, IS THAT THE
SUFFICIENCY IN LAW OF ITS FRAUD DEFENSE WAS ESTABLISHED BY THIS COURT'S
DECISION IN MINNEAPOLIS, ST. PAUL & S. STE.  MARIE R. CO. V. ROCK. 
(FN4)  THAT CASE INVOLVED THE RAILROAD'S LIABILITY FOR THE NEGLIGENT
INJURY OF ONE JOE ROCK, WHO HAD OBTAINED HIS EMPLOYMENT BY A WHOLE
SERIES OF FRAUDULENT MISREPRESENTATIONS.  ROCK HAD ORIGINALLY APPLIED
FOR A JOB IN HIS OWN NAME AND HAD BEEN REJECTED WHEN HIS PHYSICAL
CONDITION WAS FOUND TO BE SUCH THAT HE DID NOT MEET THE RAILROAD'S
REQUIREMENTS.  SEVERAL DAYS LATER, HE REAPPLIED FOR THE SAME JOB AND,
IN ORDER TO CONCEAL THE FACT THAT HE HAD PREVIOUSLY BEEN REFUSED
EMPLOYMENT BECAUSE OF HIS HEALTH, REPRESENTED HIMSELF TO BE "JOHN
ROCK," AN APPARENTLY FICTITIOUS NAME HE ASSUMED FOR THE PURPOSE.  HE
NEXT ARRANGED TO HAVE ONE LENHART POSE AS "JOHN ROCK" AND TAKE THE
RAILROAD'S PHYSICAL EXAMINATION.  WHEN LENHART PASSED THE PHYSICAL, THE
RAILROAD HIRED JOE ROCK ON THE MISTAKEN BELIEF THAT HE WAS "JOHN ROCK"
AND THAT HE HAD LENHART'S PHYSICAL CONDITION.  ON THIS UNUSUAL
COMBINATION OF FACTS, THIS COURT HELD THAT ROCK COULD NOT RECOVER
DAMAGES AGAINST THE RAILROAD UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, SAYING:  "RIGHT TO RECOVER MAY NOT JUSTIFY OR REASONABLY BE RESTED
ON A FOUNDATION SO ABHORRENT TO PUBLIC POLICY."  (FN5) 

THE RAILROAD HERE SEEKS TO BRING ITSELF WITHIN THE ROCK DECISION BY
ARGUING THAT ROCK ESTABLISHED THE PRINCIPLE THAT ANY FALSE
REPRESENTATION WHICH DECEIVES THE EMPLOYER AND RESULTS IN A RAILROAD
WORKER'S GETTING A JOB HE WOULD NOT OTHERWISE HAVE OBTAINED IS
SUFFICIENT TO BAR THE WORKER FROM RECOVERING THE DAMAGES CONGRESS HAS
PROVIDED FOR RAILROAD WORKERS NEGLIGENTLY INJURED IN THE HONEST
PERFORMANCE OF THEIR DUTIES UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT.  ALTHOUGH THERE IS SOME LANGUAGE IN THE ROCK OPINION WHICH MIGHT
LEND ITSELF TO SUCH AN INTERPRETATION, WE THINK IT PLAIN THAT NO SUCH
RULE WAS EVER INTENDED.  CERTAINLY THAT WAS NOT THE CONTEMPORANEOUS
UNDERSTANDING OF ROCK AMONG OTHER COURTS AS IS PLAINLY SHOWN BY THE
STATEMENTS OF JUDGE NORDBYE WHEN THAT INTERPRETATION OF ROCK WAS URGED
UPON HIM ONLY ONE YEAR LATER AT THE TRIAL OF MINNEAPOLIS, ST. PAUL & S.
STE.  MARIE R. CO. V. BORUM:  "IT IS INCONCEIVABLE TO THIS COURT THAT
JUSTICE BUTLER INTENDED TO HOLD IN THE ROCK CASE THAT EVERY FRAUDULENT
VIOLATION OF THE RULES FRAMED FOR MAINTAINING A CERTAIN STANDARD OF
SAFETY AND EFFICIENCY OF THE EMPLOYEES WOULD RENDER SUCH EMPLOYMENT
VOID AND DENY THE DEFRAUDING EMPLOYEE ANY RIGHTS UNDER THE ACT.  IT
SEEMS QUITE CLEAR THAT ANY FRAUD PRACTICED BY THE PLAINTIFF HEREIN AT
THE MOST RENDERED THE CONTRACT VOIDABLE."  (FN6)  AND WHEN THE BORUM
CASE CAME HERE, THIS COURT, ALTHOUGH URGED TO DO SO, ITSELF REFUSED TO
EXTEND ROCK IN ANY SUCH MANNER.  (FN7) THE DECISION IN BORUM,
CONSIDERED IN THE LIGHT OF THE FACTS THERE INVOLVED, REFLECTS CLEARLY
THE CONTEMPORANEOUSLY UNDERSTOOD LIMITATIONS UPON THE ROCK APPROACH AND
THE RELUCTANCE OF THIS COURT TO EXTEND THE VAGUE NOTIONS OF PUBLIC
POLICY UPON WHICH THAT CASE RESTED TO NEW FACTUAL SITUATIONS. 

BORUM, WHO WAS FORTY-NINE AT THE TIME, WANTED A JOB WITH A RAILROAD
THAT HAD, IN THE INTEREST OF PROMOTING SAFETY AND EFFICIENCY IN ITS
OPERATIONS, ADOPTED A RULE AGAINST HIRING MEN OVER FORTY-FIVE.  KNOWING
THIS, HE TOLD THE RAILROAD EMPLOYMENT OFFICIALS THAT HE WAS ONLY THIRTY
EIGHT AND, BY THIS DELIBERATE MISREPRESENTATION, OBTAINED A JOB HE
WOULD NOT OTHERWISE HAVE BEEN GIVEN.  ALTHOUGH BORUM TOOK THE
RAILROAD'S REQUIRED PHYSICAL EXAMINATION, IT APPARENTLY KNEW NOTHING OF
BORUM'S DECEPTION ABOUT HIS AGE UNTIL SOME SEVEN YEARS LATER, AFTER HE
HAD LOST BOTH OF HIS LEGS IN AN ACCIDENT CAUSED BY THE RAILROAD'S
NEGLIGENCE AND HAD FILED SUIT AGAINST IT FOR DAMAGES UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  JUST BEFORE TRIAL OF THIS CASE, A LAST
MINUTE INVESTIGATION TURNED UP BORUM'S REAL AGE AND THE RAILROAD SOUGHT
TO RELY UPON THIS FACT TO ESCAPE ITS LIABILITY UNDER THE ACT.  THIS
COURT UNANIMOUSLY UPHELD THE MINNESOTA COURTS' DETERMINATION THAT BORUM
HAD A RIGHT TO RECOVER DESPITE HIS ADMITTEDLY FRAUDULENT AND MATERIAL
MISREPRESENTATION OF HIS AGE, BRUSHING ASIDE THE RAILROAD'S ATTEMPTED
RELIANCE UPON ROCK ON THE GROUND "THAT THE FACTS FOUND, WHEN TAKEN IN
CONNECTION WITH THOSE SHOWN BY UNCONTRADICTED EVIDENCE, ARE NOT
SUFFICIENT TO BRING THIS CASE WITHIN THE RULE APPLIED IN MINNEAPOLIS,
ST. P.&S.S.M. RY. CO. V. ROCK, SUPRA, OR THE REASONS UPON WHICH THAT
DECISION RESTS."  (FN8) 

IN SUPPORT OF THIS CONCLUSION, THE COURT IN BORUM POINTED TO A NUMBER
OF FACTUAL DIFFERENCES WITH THE ROCK CASE.  THE FIRST MENTIONED, AND
APPARENTLY THE MOST IMPORTANT OF THESE IN THE MIND OF THE COURT, WAS
THE FACT THAT ROCK, UNLIKE BORUM, HAD OBTAINED HIS EMPLOYMENT AS AN
"IMPOSTOR" BY PRESENTING HIMSELF TO THE RAILROAD UNDER AN ASSUMED NAME
AFTER HIS INITIAL APPLICATION IN HIS OWN NAME HAD BEEN REJECTED. 
SECONDLY, THE COURT POINTED TO THE FACT THAT ROCK, AGAIN UNLIKE BORUM,
HAD NEVER BEEN APPROVED AS PHYSICALLY FIT FOR EMPLOYMENT BY THE
RAILROAD'S EXAMINING SURGEON.  FINALLY, THE COURT MADE REFERENCE TO THE
FACT THAT UNDER THE RAILROAD'S OWN RULES, IT COULD NOT HAVE DISCHARGED
BORUM FOR HIS MISREPRESENTATION BECAUSE MORE THAN THIRTY DAYS HAD
PASSED SINCE HIS ORIGINAL PROVISIONAL EMPLOYMENT AND THE RULES MADE
THIS ACTION FINAL UNLESS CHANGED WITHIN THAT PERIOD.  BUT NO ONE OF
THESE FACTS, AS THE COURT RECOGNIZED, WAS SUFFICIENT TO JUSTIFY A
DISTINCTION BETWEEN ROCK AND BORUM BASED UPON AN ACCEPTABLE RECONCILING
PRINCIPLE.  IN BOTH CASES, THE WORKER HAD BEEN GUILTY OF MAKING A
MATERIAL, FALSE AND FRAUDULENT REPRESENTATION WITHOUT WHICH HE WOULD
NOT HAVE BEEN EMPLOYED.  AND IF SUCH A METHOD OF OBTAINING EMPLOYMENT
WAS, AS INTIMATED IN ROCK, TO BE CONSIDERED SO "ABHORRENT TO PUBLIC
POLICY" THAT THE NORMAL DISTINCTION BETWEEN "VOID" AND "VOIDABLE"
CONTRACTS WAS TO BE IGNORED, (FN9) THE MERE EXISTENCE OF A RAILROAD
RULE LIMITING THE TIME FOR DISCHARGE WITHOUT CAUSE COULD NOT, OF
COURSE, HAVE OVERRIDDEN THAT POLICY.  THE COURT THEREFORE, AS SHOWN
ABOVE, BASED ITS DECISION UPHOLDING BORUM'S RIGHT TO RECOVER UPON ALL
OF THE FACTUAL DISTINCTIONS BETWEEN HIS CASE AND THAT OF ROCK AND HELD
MERELY THAT ROCK WOULD NOT BE EXTENDED TO COVER THESE NEW FACTS. 

THIS FACTUAL DISTINCTION OF ROCK, THOUGH SUFFICIENT TO SHOW THE NON
EXISTENCE OF ANY BROAD PRINCIPLE THAT MATERIAL MISREPRESENTATIONS
RELIED UPON BY A RAILROAD IN HIRING BAR RECOVERY UNDER THE ACT, PROVED
COMPLETELY UNSATISFACTORY TO ESTABLISH AFFIRMATIVELY AN INTELLIGIBLE
GUIDE BY WHICH LOWER COURTS COULD DECIDE WHAT MISREPRESENTATIONS WERE
SO "ABHORRENT TO PUBLIC POLICY" AS TO COMPEL A FORFEITURE OF THE
WORKER'S RIGHT TO RECOVER UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 
AND SINCE BORUM, THE LOWER FEDERAL COURTS AND STATE COURTS HAVE BEEN
FORCED TO STRUGGLE WITH THE BAFFLING PROBLEM OF HOW MUCH AND WHAT KINDS
OF FRAUD ARE SUFFICIENTLY ABHORRENT WITHOUT FURTHER GUIDANCE FROM THIS
COURT.  CONSEQUENTLY, IN ALMOST ALL OF SUCH CASES, THE COURTS HAVE BEEN
FACED WITH A DILEMMA OCCASIONED BY THE FACT THAT BOTH PARTIES HAVE BEEN
ABLE TO ARGUE WITH CONSIDERABLE FORCE THAT A DECISION IN THEIR FAVOR IS
ABSOLUTELY REQUIRED BY ONE OR THE OTHER OF THE TWO DECISIONS ON THE
QUESTION BY THIS COURT.  THE RESULT IN A VAST MAJORITY OF THESE COURTS
HAS BEEN AN ACCEPTANCE OF ROCK AS LAYING DOWN A NARROW PUBLIC POLICY
HOLDING TO WHICH BORUM ESTABLISHES THE NEED FOR COURTS TO MAKE BROAD
EXCEPTIONS IN APPROPRIATE CASES.  AND, PERHAPS NOT SO SURPRISINGLY,
MOST CASES HAVE BEEN DEEMED APPROPRIATE ONES FOR AVOIDING THE HARSH
CONSEQUENCES OF ROCK, WITH THE COURTS CREATING NEW EXCEPTIONS TO ALLOW
RECOVERY WHENEVER A CASE DID NOT FIT WITHIN ONE ALREADY ESTABLISHED. 
(FN10) OCCASIONALLY, AS HERE, A WORKER HAS BEEN HELD TO BE BARRED FROM
RECOVERY, BUT THESE FEW CASES SEEM ENTIRELY INDISTINGUISHABLE ON ANY
SIGNIFICANT GROUNDS FROM THE MANY IN WHICH OTHER COURTS HAVE FOUND OR
CREATED EXCEPTIONS.  (FN11) 

IN THIS SITUATION, IT SEEMS NECESSARY FOR THIS COURT, IN THE INTEREST
OF THE ORDERLY ADMINISTRATION OF JUSTICE, TO TAKE A FRESH LOOK AT THIS
QUESTION IN AN EFFORT TO SUPPLY AN INTELLIGIBLE GUIDE FOR FUTURE
DECISIONS.  HAVING DONE SO, WE CONCLUDE THAT THE ROCK CASE, PROPERLY
INTERPRETED, LAYS DOWN NO GENERAL RULE AT ALL.  IN THAT CASE, THE COURT
WAS CONFRONTED WITH AN ACTION BY A RAILROAD WORKER WHO, THOUGH
UNDENIABLY AN EMPLOYEE OF THE RAILROAD IN ANY PRACTICAL OR LEGAL SENSE,
HAD OBTAINED HIS EMPLOYMENT IN WHAT WAS DEEMED TO BE SUCH AN OUTRAGEOUS
MANNER THAT IT SEEMED TO THE COURT AT THAT TIME TO BE "ABHORRENT TO
PUBLIC POLICY" TO PERMIT HIM TO RECOVER UNDER THE ACT CONGRESS HAD
PASSED.  (FN12)  THERE IS NO OCCASION FOR US HERE TO RECONSIDER THE
CORRECTNESS OF THAT DECISION ON THE BASIS OF THE PECULIAR COMBINATION
OF FACTS INVOLVED IN THAT CASE, FOR NO SUCH FACTS ARE INVOLVED HERE
AND, INDEED, THEY MAY NEVER RISE AGAIN.  WE DO CONCLUDE, HOWEVER, THAT
ROCK MUST BE LIMITED TO ITS PRECISE FACTS.  IN THE FACE OF THE
LEGISLATIVE POLICY EMBODIED IN THE FEDERAL EMPLOYERS' LIABILITY ACT
THAT A RAILROAD SHOULD PAY DAMAGES TO ITS WORKERS AND THEIR FAMILIES
FOR PERSONAL INJURIES INFLICTED BY THE RAILROAD'S NEGLIGENCE UPON THOSE
WHO PERFORM ITS DUTIES, CONSIDERATIONS OF PUBLIC POLICY OF THE GENERAL
KIND RELIED UPON BY THE COURT IN ROCK CANNOT BE PERMITTED TO ENCROACH
FURTHER UPON THE SPECIAL POLICY EXPRESSED BY CONGRESS IN THE ACT.  TO
FACILITATE THIS CONGRESSIONAL POLICY, THE TERMS "EMPLOYED" AND
"EMPLOYEE" AS USED IN THE ACT MUST, IN ALL CASES NOT INVOLVING THE
PRECISE KIND OF FRAUD INVOLVED IN ROCK, BE INTERPRETED ACCORDING TO
THEIR ORDINARY MEANING, AND THE STATUS OF EMPLOYEES WHO BECOME SUCH
THROUGH OTHER KINDS OF FRAUD, ALTHOUGH POSSIBLY SUBJECT TO TERMINATION
THROUGH RESCISSION OF THE CONTRACT OF EMPLOYMENT, MUST BE RECOGNIZED
FOR PURPOSES OF SUITS UNDER THE ACT.  AND THIS CONCLUSION IS NOT
AFFECTED BY THE FACT THAT AN EMPLOYEE'S MISREPRESENTATION MAY HAVE, AS
IS URGED HERE, CONTRIBUTED TO THE INJURY OR EVEN TO THE ACCIDENT UPON
WHICH HIS ACTION IS BASED.  THIS ARGUMENT, WHICH SEEMS TO HAVE GAINED
ITS POPULARITY PRIMARILY AS AN EXCEPTION BY WHICH THE APPLICATION OF
ROCK COULD BE AVOIDED, (FN13) SUGGESTS THAT A RAILROAD WORKER MAY BE
PARTIALLY "EMPLOYED" UNDER THE ACT - THAT HE MAY BE ABLE TO RECOVER FOR
SOME INJURIES NEGLIGENTLY INFLICTED UPON HIM BY THE RAILROAD AND NOT BE
ABLE TO RECOVER FOR OTHERS SO INFLICTED, DEPENDING UPON THE
CIRCUMSTANCES OF EACH PARTICULAR INJURY.  EVEN IF THIS SUGGESTION
RECOMMENDED ITSELF TO REASON - WHICH, OTHER THAN AS AN EXCEPTION TO THE
BROAD PRINCIPLE MISTAKENLY DRAWN FROM ROCK, IT PLAINLY DOES NOT - WE
WOULD NOT BE FREE TO ACCEPT IT.  FOR IT FINDS NO SUPPORT AT ALL IN THE
HISTORY, PURPOSE OR LANGUAGE OF THE ACT WHICH PROVIDES RECOVERY FOR ANY
"INJURY OR DEATH RESULTING IN WHOLE OR IN PART FROM THE NEGLIGENCE OF"
THE RAILROAD (FN14) AND THERE IS NO PRIOR AUTHORITY OF THIS COURT WHICH
REQUIRES OR EVEN PERMITS US TO DISREGARD OR IMPAIR THIS CONTROLLING
DECLARATION OF PUBLIC POLICY.  (FN15) 

THE PETITIONER IN THIS CASE WAS AN EMPLOYEE UNDER THE ACT AND IS
THEREFORE ENTITLED TO RECOVER IF HE SUFFERED INJURIES DUE TO THE
RAILROAD'S NEGLIGENCE.  IT WAS THEREFORE ERROR TO DIRECT A VERDICT
AGAINST HIM ON THE RAILROAD'S PLEA OF FRAUD.  THE CASE IS REVERSED AND
THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  45 U.S.C. SECS. 51-60. 

FN2  "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."  45 U.S.C. SEC. 51. 

FN3  365 U.S. 877. 

FN4  279 U.S. 410. 

FN5  ID., AT 415. 

FN6  JUDGE NORDBYE'S OPINION IS NOT REPORTED BUT APPEARS IN THE
RECORD IN THE BORUM CASE CERTIFIED TO THIS COURT.  SEE ALSO QUALLS V.
ATCHISON, TOPEKA & SANTA FE R. CO., 112 CAL. APP. 7, 17, 296 P. 645,
650:  "THIS CASE (ROCK) MAY BE REASONABLY DISTINGUISHED FROM THE CASE
AT BAR.  IN THE ROCK CASE THE PLAINTIFF WAS NEVER REALLY EMPLOYED BY
THE COMPANY.  IN THE PRESENT CASE THE PLAINTIFF WAS EMPLOYED."  BUT CF.
FORT WORTH & DENVER CITY R. CO. V. GRIFFITH, 27 S.W.2D 351, 354. 

FN7  286 U.S. 447. 

FN8  ID., AT 451. 

FN9  "THE GENERAL RULE IS THAT FRAUD OF THIS CHARACTER RENDERS A
CONTRACT VOIDABLE RATHER THAN VOID, BUT THAT RULE HAS BEEN IGNORED IN
THE ROCK CASE BY THE SUPREME COURT UPON THE GROUND THAT THE SAFETY OF
THE TRAVELING PUBLIC IS INVOLVED IN A CONTRACT OF THIS CHARACTER, AND
FOR REASONS OF PUBLIC POLICY IT IS HELD THAT THE CONTRACT IS VOID AND,
IN EFFECT, THAT APPELLEE NEVER BECAME AN EMPLOYEE OF THE APPELLANT." 
FORT WORTH & DENVER CITY R. CO. V. GRIFFITH, 27 S.W.2D 351, 354. 

FN10  SEE, E.G., QUALLS V. ATCHISON, TOPEKA & SANTA FE R. CO., 112
CAL. APP. 7, 17, 296 P. 645, 650 (MISREPRESENTATIONS AS TO PAST
EMPLOYMENT RECORD HELD "IMMATERIAL"); POWERS V. MICHIGAN CENTRAL R.
CO., 268 ILL. APP. 493, 498 (MISREPRESENTATIONS AS TO AGE AND PAST
EMPLOYMENT RECORD HELD INSUFFICIENT TO JUSTIFY APPLICATION OF ROCK
BECAUSE ROCK "INVOLVED AN UNUSUAL STATE OF FACTS"); DAWSON V. TEXAS &
PACIFIC R. CO., 123 TEX. 191, 196, 70 S.W.2D 392, 394
(MISREPRESENTATIONS AS TO PAST EMPLOYMENT RECORD AND MEDICAL HISTORY
HELD NO BAR BECAUSE THEY WERE "IN NOWISE CONNECTED WITH THE CAUSE OF
HIS INJURY AND NOT RELATED TO HIS FITNESS OR HIS ABILITY TO DISCHARGE
THE DUTIES REQUIRED OF HIM"); TEXAS & NEW ORLEANS R. CO. V. WEBSTER,
123 TEX. 197, 201, 70 S.W.2D 394, 396 (MISREPRESENTATIONS AS TO
PREVIOUS INJURY AND LITIGATION ARISING OUT OF THAT INJURY HELD NO BAR
BECAUSE "IT WAS NOT SHOWN THAT HIS PHYSICAL CONDITION WAS SUCH AS TO
MAKE HIS EMPLOYMENT INCONSISTENT WITH PLAINTIFF IN ERROR'S PROPER
POLICY OR ITS REASONABLE RULES TO INSURE DISCHARGE OF ITS DUTY TO
SELECT FIT EMPLOYEES"); CARTER V. PEORIA & PEKIN UNION R. CO., 275 ILL.
APP. 298, 303-304 (MISREPRESENTATIONS AS TO MEDICAL HISTORY HELD NO BAR
BECAUSE THERE WAS NO "EVIDENCE TO THE EFFECT THAT THIS FORMER INJURY IN
ANY WAY DISQUALIFIED OR PREVENTED APPELLANT FROM PROPERLY PERFORMING
HIS DUTIES AS SWITCHMAN"); PHILLIPS V. SOUTHERN PACIFIC CO., 14 CAL.
APP. 2D 454, 457, 58 P.2D 688, 690 (MISREPRESENTATIONS AS TO PAST
EMPLOYMENT RECORD HELD NO BAR EVEN THOUGH FACILITATED BY THE USE OF AN
ASSUMED NAME BECAUSE THERE WAS NO SHOWING OF "A CAUSAL CONNECTION
BETWEEN THE INJURY AND THE MISSTATEMENTS IN THE APPLICATION FOR
EMPLOYMENT"); LAUGHTER V. POWELL, 219 N.C. 689, 698, 14 S.E.2D 826, 832
(MISREPRESENTATIONS AS TO AGE HELD NO BAR BECAUSE THERE WAS, DESPITE
THESE MISREPRESENTATIONS, "A CONTRACT OF EMPLOYMENT, EVEN THOUGH
VOIDABLE, BY WHICH THE RELATION OF MASTER AND SERVANT, OR EMPLOYER AND
EMPLOYEE, WAS CREATED BETWEEN DEFENDANTS AND PLAINTIFF"); NEWKIRK V.
LOS ANGELES JUNCTION R. CO., 21 CAL. 2D 308, 320, 131 P.2D 535, 543
(MISREPRESENTATIONS AS TO AGE HELD NO BAR BECAUSE "WHERE EMPLOYMENT IS
INDUCED BY FRAUDULENT REPRESENTATIONS OF THE EMPLOYEE NOT GOING TO THE
FACTUM OF THE CONTRACT THE EMPLOYMENT EXISTS ALTHOUGH THERE MAY BE
GROUND FOR RESCINDING THE CONTRACT, AND RECOVERY MAY BE HAD FROM THE
EMPLOYER FOR NEGLIGENT INJURY TO THE EMPLOYEE AT LEAST WHERE THERE IS
NO CAUSAL CONNECTION BETWEEN THE INJURY AND THE MISREPRESENTATION");
MATTHEWS V. ATCHISON, TOPEKA & SANTA FE R. CO., 54 CAL. APP. 2D 549,
556, 129 P.2D 435, 441 (MISREPRESENTATIONS AS TO AGE AND PAST
EMPLOYMENT RECORD HELD NO BAR EVEN THOUGH THESE MISREPRESENTATIONS WERE
FACILITATED BY THE USE OF AN ASSUMED NAME AND EVEN THOUGH THEY MAY HAVE
CONTRIBUTED TO THE WORKER'S INJURY BECAUSE THE RULE REQUIRING "'A
CAUSAL CONNECTION BETWEEN THE INJURY AND THE MISSTATEMENTS' REFERS TO
THE HAPPENING OF THE INJURY, NOT TO ITS EFFECTS"); BLANTON V. NORTHERN
PACIFIC R. CO., 215 MINN. 442, 446, 10 N.W.2D 382, 384
(MISREPRESENTATIONS AS TO MEDICAL HISTORY AND PHYSICAL CONDITION HELD
NO BAR BECAUSE "THE JURY COULD HAVE FOUND THAT THERE WAS NO CAUSAL
CONNECTION BETWEEN THE MISREPRESENTATION AND PLAINTIFF'S HURT"); CASSO
V. PENNSYLVANIA R. CO., 219 F.2D 303, 305 (MISREPRESENTATIONS AS TO
MEDICAL HISTORY AND PHYSICAL CONDITION HELD NO BAR BECAUSE THE
MISREPRESENTATIONS WERE NOT "OF SUCH CHARACTER THAT IT 'SUBSTANTIALLY
AFFECTED THE EXAMINING SURGEON'S CONCLUSION THAT HE WAS IN GOOD HEALTH
AND ACCEPTABLE PHYSICAL CONDITION'"); ERESAFE V. NEW YORK, NEW HAVEN &
HARTFORD R. CO., 250 F.2D 619, 621-622 (MISREPRESENTATIONS AS TO
IDENTITY, MEDICAL HISTORY AND PHYSICAL CONDITION HELD NO BAR BECAUSE "A
HUMANE AND REALISTIC POLICY IN SUCH CASES REQUIRES SUBSTANTIAL PROOF OF
A DIRECT CAUSAL CONNECTION BETWEEN THE MISREPRESENTATIONS MADE AT THE
TIME OF HIRING AND THE SUBSEQUENT INJURY TO THE EMPLOYEE"); WHITE V.
THOMPSON, 181 KAN. 485, 497-498, 312 P.2D 612, 621 (MISREPRESENTATIONS
AS TO MEDICAL HISTORY AND PHYSICAL CONDITION HELD NO BAR BECAUSE "IT IS
NOT ALLEGED THE MISREPRESENTATIONS HAD CAUSAL RELATION TO PLAINTIFF'S
FITNESS TO PERFORM HIS DUTIES AND TO THE INJURIES HE SUSTAINED, OR THAT
THEY SUBSTANTIALLY AFFECTED THE MEDICAL EXAMINER'S CONCLUSION THAT
PLAINTIFF WAS IN GOOD HEALTH AND ACCEPTABLE PHYSICAL CONDITION, OR THAT
DEFENDANT REMAINED UNAWARE OF THE DECEPTION UNTIL AFTER PLAINTIFF'S
INJURIES"). 

FN11  ONLY FOUR CASES HAVE BEEN BROUGHT TO THE ATTENTION OF THIS
COURT IN WHICH THE RAILROAD HAS BEEN PERMITTED TO PREVAIL ON AN ISSUE
RAISED BY THE DEFENSE OF FRAUDULENT PROCUREMENT OF EMPLOYMENT.   ONE OF
THESE, FORT WORTH & DENVER CITY R. CO. V. GRIFFITH, 27 S.W.2D 351, WAS
DECIDED BEFORE BORUM BY A COURT WHICH FELT ITSELF ENTIRELY BOUND BY
ROCK:  "IN DEFERENCE TO THE HOLDING OF THE SUPREME COURT OF THE UNITED
STATES, WHICH WE FEEL CONSTRAINED TO FOLLOW, THE JUDGMENT IS REVERSED
AND IS HERE RENDERED FOR THE APPELLANT."  ID., AT 354.  THE OTHER THREE
ARE:  CLARK V. UNION PACIFIC R. CO., 70 IDAHO 70, 211 P.2D 402
(JUDGMENT FOR PLAINTIFF REVERSED FOR FAILURE TO INSTRUCT THE JURY WITH
REGARD TO THE RAILROAD'S FRAUD DEFENSE); SOUTHERN PAC.  CO. V. LIBBEY,
199 F.2D 341 (JUDGMENT FOR PLAINTIFF REVERSED FOR EXCLUSION OF EVIDENCE
RELATING TO RAILROAD'S FRAUD DEFENSE); AND TALAROWSKI V. PENNSYLVANIA
R. CO., 135 F. SUPP. 503 (MOTION TO STRIKE THE RAILROAD'S FRAUD DEFENSE
DENIED).  ALL FOUR OF THESE CASES INVOLVED MISREPRESENTATIONS AS TO THE
WORKER'S PHYSICAL CONDITION.   COMPARE THESE CASES WITH THOSE CITED IN
NOTE 10, SUPRA, ESPECIALLY WITH BLANTON V. NORTHERN PACIFIC R. CO.;
CASSO V. PENNSYLVANIA R. CO.; ERESAFE V. NEW YORK, NEW HAVEN & HARTFORD
R. CO.; AND WHITE V. THOMPSON. 

FN12  FOR CONTEMPORANEOUS COMMENT ON THE ROCK DECISION, SEE MERRILL,
MISREPRESENTATION TO SECURE EMPLOYMENT, 14 MINN. L. REV. 646; COMMENT,
43 HARV. L. REV. 141; COMMENT, 28 MICH. L. REV. 357. 

FN13  "A HUMANE AND REALISTIC POLICY IN SUCH CASES REQUIRES
SUBSTANTIAL PROOF OF A DIRECT CAUSAL CONNECTION BETWEEN THE
MISREPRESENTATIONS MADE AT THE TIME OF HIRING AND THE SUBSEQUENT INJURY
TO THE EMPLOYEE, BEFORE ANY DEFENSE OF FRAUD CAN BE CONSIDERED AS A BAR
TO A RECOVERY."  ERESAFE V. NEW YORK, NEW HAVEN & HARTFORD R. CO., 250
F.2D 619, 621-622.  MENTION OF A REQUIREMENT OF DIRECT CAUSAL
CONNECTION BETWEEN THE MISREPRESENTATIONS AND THE INJURY CAN BE FOUND
IN CASES PRIOR TO ROCK, BUT THERE TOO THE REQUIREMENT WAS USED TO
PERMIT RECOVERY DESPITE FRAUD.  SEE, E.G., ST. LOUIS & SAN FRANCISCO R.
CO. V. BRANTLEY, 168 ALA. 579, 588, 53 SO. 305, 307; LUPHER V.
ATCHISON, TOPEKA & SANTA FE R. CO., 81 KAN. 585, 589, 106 P. 284, 286;
GALVESTON, HARRISBURG & SAN ANTONIO R. CO. V. HARRIS, 48 TEX. CIV. APP.
434, 437, 107 S.W. 108, 110; LOUISVILLE & NASHVILLE R. CO. V. LEWIS,
218 KY. 197, 205, 291 S.W. 401, 404. 

FN14  WE DO NOT, OF COURSE, MEAN TO INTIMATE THAT, IN APPROPRIATE
CIRCUMSTANCES, EVIDENCE OF A PRE-EXISTING PHYSICAL DEFECT MIGHT NOT BE
RELEVANT ON THE ISSUE OF WHETHER THE INJURY COMPLAINED OF WAS CAUSED BY
THE RAILROAD'S NEGLIGENCE "IN WHOLE OR IN PART" BY TENDING TO SHOW
EITHER THAT THE WORKER WAS NOT INJURED BY THE RAILROAD AT ALL, THAT, IF
INJURED, THE RAILROAD WAS NOT RESPONSIBLE FOR THE FULL EXTENT OF THE
INJURY, OR THAT DAMAGES SHOULD BE DIMINISHED BY THE JURY BECAUSE OF
CONTRIBUTORY NEGLIGENCE. 

FN15  INDEED, IF THE DECISIONS OF THIS COURT CAN BE SAID TO POINT IN
EITHER DIRECTION, IT IS TOWARD THE CONCLUSION THAT A CAUSAL CONNECTION
BETWEEN THE INJURY AND THE MISREPRESENTATIONS IS TOTALLY IRRELEVANT. 
FOR, AS THIS COURT EXPRESSLY RECOGNIZED, THERE WAS NO SUCH CONNECTION
IN ROCK.  "WHILE HIS (ROCK'S) PHYSICAL CONDITION WAS NOT A CAUSE OF HIS
INJURIES, IT DID HAVE DIRECT RELATION TO THE PROPRIETY OF ADMITTING HIM
TO SUCH EMPLOYMENT."  279 U.S., AT 415. 

MR. JUSTICE FRANKFURTER, CONCURRING IN A JUDGMENT FOR A NEW TRIAL. 

THE ISSUE BEFORE THE COURT IN THIS CASE IS NOT THE SUFFICIENCY OF THE
EVIDENCE TO SUSTAIN A VERDICT FOR OR AGAINST AN EMPLOYEE CLAIMING
RECOVERY FOR INJURIES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 45
U.S.C. SECS. 51-58.  IT PRESENTS THE QUESTION WHETHER A
MISREPRESENTATION BY THE PETITIONER REGARDING HIS HEALTH AT THE TIME
THE RAILROAD HIRED HIM, BARS RECOVERY AS A MATTER OF LAW IN VIEW OF OUR
DECISION IN MINNEAPOLIS, ST. P.&S. STE.  M.R.  CO. V. ROCK, 279 U.S.
410.  THAT DECISION HELD THE STATUTORY REMEDIES UNAVAILABLE BECAUSE, AS
ITS AUTHOR PITHILY STATED IT ON TWO OCCASIONS, ROCK "WAS AN IMPOSTOR." 
279 U.S., AT 412; MINNEAPOLIS, ST. P.&S. STE.  M.R. CO. V. BORUM, 286
U.S. 447, 450. 

THE COURT DOES NOT NOW OVERRULE ROCK BUT SAYS THAT IT "MUST BE
LIMITED TO ITS PRECISE FACTS."  I TAKE IT THIS STATEMENT REFERS TO THE
FACTS RELEVANT TO THE RESULT IN THAT CASE; IT DOES NOT MEAN THAT THE
PLAINTIFF MUST BE NAMED ROCK. 

THE SCOPE OF THE ROCK DECISION WAS DEFINED IN BORUM, A CASE ON WHICH
THE COURT'S OPINION NOW RELIES.  THE LATTER CASE CAME BEFORE THIS COURT
FOR REVIEW OF THE STATE COURT'S REFUSAL TO SET ASIDE AN ARBITRAL
FINDING THAT THE PLAINTIFF HAD BEEN AN EMPLOYEE.  THE JUDGMENT WAS
AFFIRMED ON THE BASIS THAT THE EVIDENCE DID NOT REQUIRE A FINDING THAT
DECEIT IN OBTAINING EMPLOYMENT HAD MATERIALLY PREJUDICED THE EMPLOYER'S
EFFORTS TO SELECT FIT EMPLOYEES.  THE COURT DID NOT HOLD THAT THE
QUESTION OF FRAUD IN OBTAINING EMPLOYMENT WAS IMPROPERLY SUBMITTED TO
THE TRIER OF FACT. 

I WOULD SIMILARLY DISPOSE OF THIS CASE; THAT IS, UPON A NEW TRIAL THE
ISSUE SHOULD NOT BE WITHDRAWN FROM THE JURY BUT SUBMITTED TO IT ON THE
PRINCIPLE WHICH GOVERNED THE BORUM CASE, SUPRA. 

MR. JUSTICE WHITTAKER, DISSENTING. 

CLAIMING TO HAVE SUFFERED INJURIES TO HIS BACK BY THE NEGLIGENCE OF
FELLOW SERVANTS IN THE COURSE OF HIS EMPLOYMENT BY THE RESPONDENT
RAILROAD IN INTERSTATE COMMERCE, PETITIONER BROUGHT THIS ACTION AGAINST
THE RAILROAD IN A WEST VIRGINIA COURT UNDER THE BENEFICENT PROVISIONS
OF THE FEDERAL EMPLOYERS' LIABILITY ACT.  45 U.S.C. SECS. 51-58.  BUT
APPLICATION OF THE PROVISIONS OF THAT ACT IS, IN TERMS, MADE TO DEPEND
UPON, AMONG OTHER THINGS, THE EXISTENCE OF AN EMPLOYEE STATUS.  AT THE
CONCLUSION OF THE EVIDENCE OFFERED ON THE TRIAL OF THE CASE BEFORE A
JURY, THE RAILROAD MOVED FOR A DIRECTED VERDICT UPON THE GROUND, AMONG
OTHERS, THAT PETITIONER DID NOT OCCUPY AN EMPLOYEE STATUS WITH THE
RAILROAD.  BELIEVING THAT THE UNDISPUTED EVIDENCE SO CLEARLY
ESTABLISHED THAT PETITIONER HAD PROCURED HIS PUTATIVE EMPLOYMENT
RELATION WITH THE RAILROAD BY MATERIALLY FRAUDULENT MISREPRESENTATIONS
TO, AND CONCEALMENTS FROM, THE RAILROAD AND ITS EXAMINING PHYSICIAN OF
HIS NOW ADMITTED CONGENITALLY DEFECTIVE BACK CONDITION THAT REASONABLE
MEN COULD NOT DIFFER ABOUT IT, THE TRIAL COURT GRANTED THE MOTION AND
DIRECTED THE JURY TO, AND IT DID, RETURN A VERDICT FOR THE RAILROAD. 
THE SUPREME COURT OF APPEALS OF WEST VIRGINIA DECLINED TO REVIEW, AND
WE GRANTED CERTIORARI.  365 U.S. 877.    THIS COURT NOW NOT ONLY
REVERSES THAT JUDGMENT, BUT IT ALSO - I THINK QUITE GRATUITOUSLY AND
ERRONEOUSLY - RESTRICTS THE CASE OF MINNEAPOLIS, ST. P.&S. STE.  M.R.
CO. V. ROCK, 279 U.S. 410, "TO ITS PRECISE FACTS."  WHILE THE
UNDISPUTED EVIDENCE OF PETITIONER'S FRAUD UPON THE RAILROAD IN
PROCURING THE PUTATIVE EMPLOYMENT RELATIONSHIP SEEMS FAIRLY CLEAR TO
ME, AS IT DID TO THE TWO STATE COURTS, I CONCEDE THAT REASONABLE MEN
MAY DIFFER ABOUT IT; AND THEREFORE, IF WE MUST HERE DEAL WITH SUCH FACT
ISSUES, I AM ABLE TO SAY THAT THE ISSUE SHOULD NOT HAVE BEEN DETERMINED
BY THE COURT AS A MATTER OF LAW, BUT INSTEAD SHOULD HAVE BEEN SUBMITTED
TO THE JURY FOR RESOLUTION.  BUT I AM UNABLE TO AGREE TO WHAT I THINK
IS THE COURT'S GRATUITOUS AND ERRONEOUS RESTRICTION OF THE ROCK CASE
"TO ITS PRECISE FACTS," AND SO I DISSENT. 

THE QUESTION IS NOT WHETHER ONE WHO HAS OBTAINED AN EMPLOYEE STATUS
WITH A RAILROAD BY A FLAGRANT FRAUD MAY MAINTAIN AN ACTION TO RECOVER
FOR INJURIES WILLFULLY OR NEGLIGENTLY INFLICTED UPON HIM UNDER, AND
SUBJECT TO THE CONDITIONS AND DEFENSES IMPOSED BY, THE LAWS OF THE
STATE IN WHICH THE CASUALTY OCCURRED.  OF COURSE HE MAY.  HIS FRAUD,
HOWEVER FLAGRANT, WOULD NOT GIVE THE RAILROAD A LICENSE TO INJURE HIM. 
RATHER THE QUESTION IS WHETHER, DESPITE HIS FLAGRANT FRAUD IN PROCURING
THE EMPLOYEE STATUS, HE MAY HAVE THE SPECIAL BENEFITS, AND FREEDOM FROM
THE NORMAL DEFENSES, GIVEN BY CONGRESS IN THE FEDERAL EMPLOYERS'
LIABILITY ACT TO ONE WHO HAS HONESTLY ACQUIRED THE STATUS OF AND IS
TRULY AN EMPLOYEE OF A RAILROAD.  I THINK CONGRESS DID NOT INTEND TO
GIVE THOSE SPECIAL BENEFITS TO A PERSON WHO HAS ACQUIRED A PUTATIVE
EMPLOYMENT RELATIONSHIP WITH A RAILROAD BY FLAGRANT FRAUD, WHETHER THAT
FRAUD FALLS WITHIN THE "PRECISE FACTS" OF THE ROCK CASE OR WITHIN ANY
OF THE MYRIAD VARIATIONS THEREOF. 

WHILE THE FRAUD THAT INDUCED THE PUTATIVE EMPLOYMENT RELATIONSHIP IN
THE ROCK CASE WAS SO CLEAR THAT THIS COURT WAS ABLE TO AND DID
DETERMINE THE QUESTION AS ONE OF LAW, AND THE SOMEWHAT LESS COMPELLING
EVIDENCE OF FRAUD IN THIS CASE DOES NOT LEGALLY REQUIRE A LIKE RESULT,
THAT CASE DOES STAND FOR THE AGE-OLD AND SOUND PROPOSITION THAT FRAUD
IN THE INDUCEMENT OF A CONTRACT VITIATES THE CONTRACT.  I CANNOT AGREE
TO A REPUDIATION OF THAT PRINCIPLE. 

IRRESPECTIVE OF ITS LEGALLY CLEAR FRAUDULENT FACTS, THE FUNDAMENTAL
ISSUE IN THE ROCK CASE WAS "WHETHER, NOTWITHSTANDING THE MEANS BY WHICH
HE GOT EMPLOYMENT  ...  , PETITIONER MAY MAINTAIN AN ACTION UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT."  279 U.S., AT 413.  THE SAME
PRINCIPLE IS INVOLVED HERE.  TODAY, MUCH AS AT THE TIME OF THE ROCK
CASE, THAT "ACT ABROGATES THE FELLOW-SERVANT RULE AND RESTRICTS THE
DEFENSES OF CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK," ID., AT
413, YET HERE, AS THERE, PETITIONER "IN THIS ACTION SEEKS, IN VIRTUE OF
ITS PROVISIONS AND DESPITE THE RULES OF THE COMMON LAW, TO HOLD THE
RAILROAD LIABLE FOR NEGLIGENCE OF HIS FELLOW SERVANTS AND
NOTWITHSTANDING HIS OWN NEGLIGENCE MAY HAVE CONTRIBUTED TO CAUSE HIS
INJURIES."  IBID.  QUITE EXPLICITLY, CONGRESS CONFERRED THE SPECIAL
REMEDIES OF THAT ACT ONLY UPON THOSE WHO OCCUPY THE STATUS OF
EMPLOYEE.  SURELY THAT STATUS, WITHIN THE MEANING OF THE ACT, CANNOT BE
CREATED BY FLAGRANT FRAUD, WHETHER THAT FRAUD DOES OR DOES NOT FALL
WITHIN THE "PRECISE FACTS" OF THE ROCK CASE.  TODAY, NO LESS THAN AT
THE TIME OF THE ROCK CASE, "THE CARRIERS OWE A DUTY TO THEIR PATRONS
AND TO THE PUBLIC AS WELL AS TO THOSE ENGAGED IN THE OPERATION OF THEIR
RAILROADS TO TAKE CARE  ... TO EXCLUDE THE UNFIT FROM THEIR SERVICE. 
THE ENFORCEMENT OF THE ACT IS CALCULATED TO STIMULATE THEM TO PROPER
PERFORMANCE OF THAT DUTY."  279 U.S., AT 413-414.  ONE WHO FRAUDULENTLY
OBSTRUCTS THE DISCHARGE OF THAT DUTY SURELY CANNOT BE PERMITTED TO
PROFIT FROM HIS OWN WRONG.  THESE ARE THE UNDERLYING PRINCIPLES OF THE
ROCK CASE, AND I SUBMIT THAT THEY ARE SOUND. 

EVEN THOUGH THE EVIDENCE OF PETITIONER'S FRAUD IN PROCURING THE
PUTATIVE EMPLOYMENT RELATIONSHIP HERE MAY NOT BE SUFFICIENTLY CLEAR TO
ENABLE THE COURT TO DECLARE IT AS A MATTER OF LAW, AND HENCE THE ISSUE
MUST BE SUBMITTED TO THE JURY, SURELY THE JURY COULD FIND, ON PROPER
AND SUFFICIENT EVIDENCE, THAT PETITIONER PROCURED THE PUTATIVE
EMPLOYMENT RELATIONSHIP BY FRAUD; AND, SINCE FRAUD IN THE INDUCEMENT OF
THE CONTRACT VITIATES THE CONTRACT, SUCH A FINDING WOULD ESTABLISH THAT
PETITIONER NEVER, IN TRUTH, ACQUIRED THE EMPLOYMENT STATUS WHICH
CONGRESS INTENDED TO PROTECT BY THE EXTRAORDINARY PROVISIONS OF THE
ACT.  OTHERWISE, "THE DECEPTION BY WHICH PETITIONER MAY HAVE SECURED
EMPLOYMENT WOULD SET AT NAUGHT THE CARRIER'S REASONABLE RULE AND
PRACTICE ESTABLISHED TO PROMOTE THE SAFETY OF THE PUBLIC, ITS PATRONS
AND ITS EMPLOYEES AND TO PROTECT COMMERCE."  SUCH FRAUD WOULD DIRECTLY
OPPOSE "THE PUBLIC INTEREST BECAUSE CALCULATED TO EMBARRASS AND HINDER
THE CARRIER IN THE PERFORMANCE OF ITS DUTIES AND TO DEFEAT IMPORTANT
PURPOSES SOUGHT TO BE ADVANCED BY THE ACT."  279 U.S., AT 414. 

ONLY A FAIR MEASURE OF SIMPLE HONESTY IS INVOLVED.  SURELY, CONGRESS
CONTEMPLATED AND EXPECTED THAT SUCH WOULD BE NECESSARY TO CREATE THE
STATUS IT WAS SURROUNDING WITH THESE EXTRAORDINARY RIGHTS. 

ALTHOUGH THE PRINCIPLES OF THE ROCK CASE DO NOT LEGALLY REQUIRE A
LIKE RESULT IN THIS CASE, THEY PROPERLY DO PERMIT A JURY, RIGHTLY
INSTRUCTED, TO FIND, UPON THE AGGRAVATED EVIDENCE THAT SO WARRANTS,
THAT THE PUTATIVE EMPLOYMENT WAS INDUCED BY FRAUD.  AND IF THE JURY
SHOULD SO FIND, IT WOULD FOLLOW THAT, IN TRUTH, THE PETITIONER NEVER
DID ACQUIRE AND OCCUPY AN EMPLOYEE STATUS WITHIN THE MEANING OF THE
ACT.  THIS IS BUT A SIMPLE APPLICATION OF THE SURELY STILL VALID
PRINCIPLE THAT ONE MAY NOT PROFIT FROM HIS OWN WRONG.  I THINK THERE IS
NO CALL OR REASON HERE TO TAMPER WITH THE SOUND UNDERLYING PRINCIPLES
OF THE ROCK CASE. 
..END :

















HAMILTON V. ALABAMA 368 U.S. 52 


NO. 32.  ARGUED OCTOBER 17, 1961.  - DECIDED NOVEMBER 13, 1961.  - 271
ALA. 88, 122 SO. 2D 602, REVERSED. 


IN ALABAMA ARRAIGNMENT IS A CRITICAL STAGE IN A CRIMINAL PROCEEDING,
BECAUSE ONLY THEN MAY THE DEFENSE OF INSANITY BE PLEADED AND PLEAS IN
ABATEMENT OR MOTIONS CHALLENGING THE COMPOSITION OF THE GRAND JURY BE
MADE.  PETITIONER WAS ARRAIGNED WITHOUT COUNSEL IN ALABAMA FOR A
CAPITAL OFFENSE, TO WHICH HE PLEADED NOT GUILTY, AND SUBSEQUENTLY HE
WAS CONVICTED AND SENTENCED TO DEATH.  HELD: ABSENCE OF COUNSEL FOR
PETITIONER AT THE TIME OF HIS ARRAIGNMENT VIOLATED HIS RIGHTS UNDER THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 52-55. 

HAMILTON V. ALABAMA. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CAPITAL CASE, PETITIONER HAVING BEEN SENTENCED TO DEATH ON
A COUNT OF AN INDICTMENT CHARGING BREAKING AND ENTERING A DWELLING AT
NIGHT WITH INTENT TO RAVISH.  (FN1)  PETITIONER APPEALED, CLAIMING HE
HAD BEEN DENIED COUNSEL AT THE TIME OF ARRAIGNMENT.  THE ALABAMA
SUPREME COURT, ALTHOUGH STATING THAT THE RIGHT TO COUNSEL UNDER THE
STATE AND FEDERAL CONSTITUTIONS INCLUDED THE RIGHT TO COUNSEL AT THE
TIME OF ARRAIGNMENT, DID NOT REACH THE MERITS OF THE CLAIM BECAUSE TO
DO SO WOULD REQUIRE IMPEACHING THE MINUTE ENTRIES AT THE TRIAL, (FN2)
WHICH MAY NOT BE DONE IN ALABAMA ON AN APPEAL.  270 ALA. 184, 116 SO.
2D 906.  WHEN PETITIONER SOUGHT CERTIORARI HERE, ALABAMA RESPONDED
SAYING THAT HIS REMEDY TO ATTACK THE JUDGMENT WITH EXTRINSIC EVIDENCE
WAS BY WAY OF CORAM NOBIS.  WE DENIED CERTIORARI.  363 U.S. 852. 

PETITIONER THEREUPON PROCEEDED BY WAY OF CORAM NOBIS IN THE ALABAMA
COURTS.  THE SUPREME COURT OF ALABAMA, WHILE RECOGNIZING THAT
PETITIONER HAD A RIGHT UNDER STATE LAW, 15 ALA.  CODE SEC. 318, TO BE
REPRESENTED BY COUNSEL AT THE TIME OF HIS ARRAIGNMENT, DENIED RELIEF
BECAUSE THERE WAS NO SHOWING OR EFFORT TO SHOW THAT PETITIONER WAS
"DISADVANTAGED IN ANY WAY BY THE ABSENCE OF COUNSEL (FN3) WHEN HE
INTERPOSED HIS PLEA OF NOT GUILTY."  271 ALA. 88, 93, 122 SO. 2D 602,
607.  THE CASE IS HERE ON CERTIORARI.  364 U.S. 931. 

ARRAIGNMENT UNDER ALABAMA LAW IS A CRITICAL STAGE IN A CRIMINAL
PROCEEDING.  IT IS THEN THAT THE DEFENSE OF INSANITY MUST BE PLEADED
(15 ALA. CODE SEC. 423), OR THE OPPORTUNITY IS LOST.  MORRELL V. STATE,
136 ALA. 44, 34 SO. 208.  THEREAFTER THAT PLEA MAY NOT BE MADE EXCEPT
IN THE DISCRETION OF THE TRIAL JUDGE, AND HIS REFUSAL TO ACCEPT IT IS
"NOT REVISABLE" ON APPEAL.  ROHN V. STATE, 186 ALA. 5, 8, 65 SO. 42,
43.  CF. GARRETT V. STATE, 248 ALA. 612, 614-615, 29 SO. 2D 8, 9. 
PLEAS IN ABATEMENT MUST ALSO BE MADE AT THE TIME OF ARRAIGNMENT.  15
ALA. CODE SEC. 279.  IT IS THEN THAT MOTIONS TO QUASH BASED ON
SYSTEMATIC EXCLUSION OF ONE RACE FROM GRAND JURIES (REEVES V. STATE,
264 ALA. 476, 88 SO. 2D 561), OR ON THE GROUND THAT THE GRAND JURY WAS
OTHERWISE IMPROPERLY DRAWN (WHITEHEAD V. STATE, 206 ALA. 288, 90 SO.
351), MUST BE MADE. 

WHATEVER MAY BE THE FUNCTION AND IMPORTANCE OF ARRAIGNMENT IN OTHER
JURISDICTIONS, (FN4) WE HAVE SAID ENOUGH TO SHOW THAT IN ALABAMA IT IS
A CRITICAL STAGE IN A CRIMINAL PROCEEDING.  WHAT HAPPENS THERE MAY
AFFECT THE WHOLE TRIAL.  AVAILABLE DEFENSES MAY BE AS IRRETRIEVABLY
LOST, IF NOT THEN AND THERE ASSERTED, AS THEY ARE WHEN AN ACCUSED
REPRESENTED BY COUNSEL WAIVES A RIGHT FOR STRATEGIC PURPOSES.  CF.
CANIZIO V. NEW YORK, 327 U.S. 82, 85-86.  IN POWELL V. ALABAMA, 287
U.S. 45, 69, THE COURT SAID THAT AN ACCUSED IN A CAPITAL CASE "REQUIRES
THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE PROCEEDINGS AGAINST
HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE FACES THE DANGER OF
CONVICTION BECAUSE HE DOES NOT KNOW HOW TO ESTABLISH HIS INNOCENCE." 
THE GUIDING HAND OF COUNSEL IS NEEDED AT THE TRIAL "LEST THE UNWARY
CONCEDE THAT WHICH ONLY BEWILDERMENT OR IGNORANCE COULD JUSTIFY OR PAY
A PENALTY WHICH IS GREATER THAN THE LAW OF THE STATE EXACTS FOR THE
OFFENSE WHICH THEY IN FACT AND IN LAW COMMITTED."  TOMKINS V. MISSOURI,
323 U.S. 485, 489.  BUT THE SAME PITFALLS OR LIKE ONES FACE AN ACCUSED
IN ALABAMA WHO IS ARRAIGNED WITHOUT HAVING COUNSEL AT HIS SIDE.  WHEN
ONE PLEADS TO A CAPITAL CHARGE WITHOUT BENEFIT OF COUNSEL, WE DO NOT
STOP TO DETERMINE WHETHER PREJUDICE RESULTED.  WILLIAMS V. KAISER, 323
U.S. 471, 475-476; HOUSE V. MAYO, 324 U.S. 42, 45-46; UVEGES V.
PENNSYLVANIA, 335 U.S. 437, 442.  IN THIS CASE, AS IN THOSE, THE DEGREE
OF PREJUDICE CAN NEVER BE KNOWN.  ONLY THE PRESENCE OF COUNSEL COULD
HAVE ENABLED THIS ACCUSED TO KNOW ALL THE DEFENSES AVAILABLE TO HIM AND
TO PLEAD INTELLIGENTLY.  REVERSED. 

FN1  ANOTHER COUNT CHARGED BREAKING AND ENTERING WITH INTENT TO
STEAL. 

FN2  THE MINUTE ENTRIES INDICATED THAT PETITIONER HAD COUNSEL AT THE
ARRAIGNMENT. 

FN3  PETITIONER WAS FIRST INDICTED FOR BURGLARY AND WHEN ARRAIGNED
HAD COUNSEL PRESENT.  LATER, THE PRESENT INDICTMENT, RELATING TO THE
SAME INCIDENT, WAS RETURNED.  HIS COUNSEL, WHO HAD BEEN APPOINTED, WAS
ADVISED THAT PETITIONER WOULD BE RE-ARRAIGNED.  BUT NO LAWYER APPEARED
AT THIS ARRAIGNMENT AND WE READ THE ALABAMA SUPREME COURT OPINION TO
MEAN THAT THE EARLIER APPOINTMENT DID NOT CARRY OVER. 

FN4  ARRAIGNMENT HAS DIFFERING CONSEQUENCES IN THE VARIOUS
JURISDICTIONS.  UNDER FEDERAL LAW AN ARRAIGNMENT IS A SINE QUA NON TO
THE TRIAL ITSELF - THE PRELIMINARY STAGE WHERE THE ACCUSED IS INFORMED
OF THE INDICTMENT AND PLEADS TO IT, THEREBY FORMULATING THE ISSUE TO BE
TRIED.  CRAIN V. UNITED STATES, 162 U.S. 625, 644; RULES 10 AND 11,
FEDERAL RULES OF CRIMINAL PROCEDURE.  THAT VIEW HAS LED SOME STATES TO
HOLD THAT ARRAIGNMENT IS THE FIRST STEP IN A TRIAL (AT LEAST IN CASE OF
FELONIES) AT WHICH THE ACCUSED IS ENTITLED TO AN ATTORNEY.  PEOPLE V.
KURANT, 331 ILL. 470, 163 N.E. 411. 

IN OTHER STATES ARRAIGNMENT IS NOT "A PART OF THE TRIAL" BUT "A MERE
FORMAL PRELIMINARY STEP TO AN ANSWER OR PLEA."  EX PARTE JEFFCOAT, 109
FLA. 207, 210, 146 SO. 827, 828. 

AN ARRAIGNMENT NORMALLY, HOWEVER, AFFORDS AN OPPORTUNITY OF THE
ACCUSED TO PLEAD, AS A CONDITION PRECEDENT TO A TRIAL.  FOWLER V.
STATE, 155 TEX. CR. R. 35, 230 S.W.2D 810.  N.J. RULES OF PRACTICE,
RULE 8:4-2. 
..END :





OXENBERG V. ALASKA 368 U.S. 56 


NO. 385.  DECIDED NOVEMBER 13, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  - ALASKA - , 362 P.2D 893. 


OXENBERG V. ALASKA. 

APPEAL FROM THE SUPREME COURT OF ALASKA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















ROPER V. UNITED STATES 368 U.S. 20 


NO. 16.  ARGUED OCTOBER 12, 16, 1961 - DECIDED NOVEMBER 6, 1961 - 282
F.2D 413, AFFIRMED. 


THIS LIBEL IN PERSONAM AGAINST THE UNITED STATES UNDER THE SUITS IN
ADMIRALTY ACT WAS BROUGHT BY AN EMPLOYEE OF A STEVEDORING COMPANY TO
RECOVER DAMAGES FOR INJURIES SUSTAINED WHILE UNLOADING GRAIN FROM A
GOVERNMENT-OWNED SHIP AT A PIER.  THE SHIP HAD BEEN DEACTIVATED,
"MOTHBALLED" AND RENDERED UNFIT FOR NAVIGATION AND WAS BEING USED
SOLELY FOR THE STORAGE OF GRAIN OWNED BY THE GOVERNMENT.  WITHOUT BEING
PREPARED OR RELICENSED FOR NAVIGATION, IT HAD BEEN TOWED TO A GRAIN
ELEVATOR, LOADED WITH GRAIN, TOWED BACK TO ITS ANCHORAGE AND THEN TOWED
AGAIN TO THE GRAIN ELEVATOR FOR UNLOADING WHEN THE GRAIN WAS SOLD.  THE
TRIAL COURT DISMISSED THE LIBEL, HOLDING THAT, SINCE THE VESSEL WAS NOT
IN NAVIGATION, THERE WAS NO WARRANTY OF SEAWORTHINESS.  THE COURT OF
APPEALS AFFIRMED.  HELD: THE EXISTENCE OF THE WARRANTY OF SEAWORTHINESS
DEPENDS ON WHETHER THE VESSEL IS IN NAVIGATION, WHICH IS A QUESTION OF
FACT; ON THE RECORD IN THIS CASE, THIS COURT CANNOT HOLD THAT THE
FINDING OF THE TRIAL COURT IN THIS REGARD WAS CLEARLY ERRONEOUS.  PP.
20-24. 

ROPER V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A LONGSHOREMAN, BROUGHT THIS LIBEL IN PERSONAM AGAINST
THE UNITED STATES PURSUANT TO THE SUITS IN ADMIRALTY ACT, SEC. 2, 41
STAT. 525, 46 U.S.C. SEC.  742.  (FN1)  CLAIMING INJURIES SUFFERED
WHILE ABOARD A GOVERNMENT SHIP REMOVING GRAIN TO AN ELEVATOR,
PETITIONER SOUGHT RECOVERY ON THE GROUNDS OF UNSEAWORTHINESS AND
NEGLIGENCE.  THE DISTRICT COURT DISMISSED THE LIBEL AFTER FINDING THAT
THERE WAS NO NEGLIGENCE, AND THAT SINCE THE SHIP IN FACT WAS NOT IN
NAVIGATION THERE WAS NO WARRANTY OF SEAWORTHINESS.  170 F. SUPP. 763. 
THIS DISMISSAL WAS AFFIRMED BY A DIVIDED COURT OF APPEALS, 282 F.2D
413, AND A PETITION FOR CERTIORARI REQUESTING REVIEW OF THE
SEAWORTHINESS ISSUE WAS GRANTED.  365 U.S. 802.  WE NOW AFFIRM THE
JUDGMENT BELOW. 

THE S.S. HARRY LANE WAS A LIBERTY SHIP OF WORLD WAR II ORIGIN, WHICH
WAS DEACTIVATED FROM SERVICE AND "MOTHBALLED" IN 1945.  IN THIS PROCESS
HER SUPPLIES, STORES, NAUTICAL INSTRUMENTS, CARGO GEAR AND TACKLE WERE
REMOVED; HER PIPES AND MACHINERY WERE DRAINED AND PREPARED FOR STORAGE;
AND HER RUDDER, TAIL SHAFT AND PROPELLER WERE SECURED.  AS A RESULT OF
SUCH ACTION THE SHIP LOST HER COAST GUARD SAFETY CERTIFICATION AS WELL
AS HER LICENSE TO OPERATE, BOTH OF WHICH WERE REQUISITE TO A VESSEL IN
NAVIGATION.  INDEED, THE TRIAL COURT FOUND THAT "ADMITTEDLY"
REACTIVATION OF THE SHIP WOULD HAVE REQUIRED A MAJOR OVERHAUL. 

IN 1954 THE GOVERNMENT WAS CONFRONTED WITH AN URGENT NEED OF STORAGE
FACILITIES FOR THE COUNTRY'S SURPLUS GRAIN, AND A DECISION WAS MADE TO
UTILIZE AS WAREHOUSE SPACE THE HOLDS OF SOME OF THE DEACTIVATED LIBERTY
SHIPS.  THE SHIPS WERE NOT REACTIVATED FOR NAVIGATION NOR USED FOR
TRANSPORTATION PURPOSES, BUT WERE UTILIZED SOLELY AS GRANARIES FOR THE
STORAGE OF THE GOVERNMENT'S GRAIN.  PURSUANT THERETO, THE USE OF THE
S.S. HARRY LANE WAS COVERED BY A GENERAL STORAGE AGREEMENT BETWEEN THE
CONTINENTAL GRAIN COMPANY AND THE COMMODITY CREDIT CORPORATION, AND IT
WAS TOWED TO LOADING FACILITIES, FILLED WITH GRAIN, AND RETURNED TO THE
"DEAD FLEET" OF SOME 360 VESSELS, WHERE IT REMAINED FOR TWO YEARS. 

IN SEPTEMBER 1956 A SALE WAS MADE OF THE GRAIN STORED IN THIS SHIP,
AND SHE WAS TOWED BACK TO THE GRAIN ELEVATOR FOR THE UNLOADING
OPERATION.  AS IN THE EARLIER MOVEMENT, NO REPAIRS OR STRUCTURAL
CHANGES PREPARATORY TO ACTIVATING THE SHIP WERE MADE; NOR WAS THERE ANY
ATTEMPT TO OBTAIN A SAFETY CERTIFICATE OR A LICENSE TO OPERATE AS A
VESSEL IN NAVIGATION, AND NONE WAS ISSUED.  THE MOVEMENT WAS BY TUG,
WITH A LICENSED RIDING MASTER AND SIX LINEMEN STATIONED ABOARD THE DEAD
VESSEL.  THE LINEMEN WERE DISCHARGED FROM THE VESSEL AFTER SHE WAS
SECURED TO HER BERTH AT THE GRAIN ELEVATOR, THE RIDING MASTER ALONE
REMAINING TO GUARD THE VESSEL.  THE LINE HANDLERS DID NOT SIGN ON AS
SEAMEN FOR THE VESSEL, AND THE TUGBOAT CAPTAIN WAS "IN CHARGE OF THE
MOVE FROM THE FLEET DOWN TO THE BERTH" WITH THE RIDING MASTER "SUBJECT
TO THE ORDERS OF THE TUGBOAT CAPTAIN." 

THE UNLOADING OPERATION WAS CARRIED OUT BY CONTINENTAL GRAIN
COMPANY.  THE GRAIN WAS REMOVED BY A "MARINE LEG," A LARGE SHORE-BASED
MECHANISM CONTAINING A CONVEYOR BELT WHICH LIFTS GRAIN FROM THE SHIP'S
HOLD INTO THE ADJACENT GRAIN ELEVATOR LEASED BY CONTINENTAL.  THE
MARINE LEG WAS OWNED AND MAINTAINED BY CONTINENTAL, AND THEIR EMPLOYEE
OPERATED IT FROM A CONTROL HOUSE IN RESPONSE TO SIGNALS FROM
LONGSHOREMEN IN THE HOLD.  WHEN THE GRAIN LEVEL DROPPED TO A CERTAIN
DEPTH, THE BALANCE WAS DRAWN ONTO THE BELT BY "GRAIN SHOVELS" - PLOW
LIKE DEVICES ATTACHED BY ROPE TO WINCHES IN THE LEG.  THESE SHOVELS
WERE OPERATED BY LONGSHOREMEN EMPLOYED BY A STEVEDORING COMPANY, WHICH
HAD CONTRACTED WITH CONTINENTAL TO AID IN THE UNLOADING.  PETITIONER,
THE FOREMAN OF THE LONGSHOREMAN CREW, WAS INJURED WHEN A LATENTLY
DEFECTIVE PART OF THE MARINE LEG (A BLOCK THROUGH WHICH ONE OF THE
SHOVEL ROPES RAN) BROKE AND STRUCK HIM.  THE ENTIRE UNLOADING OPERATION
WAS DIRECTED AND CONTROLLED BY CONTINENTAL AND THE STEVEDORING COMPANY,
AND THE RIDING MASTER WAS WITHOUT POWER TO SUPERVISE THE WORK OR
INSPECT THE EQUIPMENT. 

THE TEST FOR DETERMINING WHETHER A VESSEL IS IN NAVIGATION IS THE
"STATUS OF THE SHIP," WEST V. UNITED STATES, 361 U.S. 118, 122 (1959). 
THIS A QUESTION OF FACT, BUTLER V. WHITEMAN, 356 U.S. 271 (1958), AND
CONSEQUENTLY REVERSIBLE ONLY UPON A SHOWING OF CLEAR ERROR.  ADMITTEDLY
THE S. S. HARRY LANE WAS WITHDRAWN FROM NAVIGATION IN 1945.  THE ISSUE
PRESENTED IS THEREFORE WHETHER EVENTS SUBSEQUENT TO 1945 ALTERED THIS
STATUS.  IN 1954 THE FUNCTION OF THE SHIP WAS MODIFIED.  HOWEVER, SHE
WAS NOT CONVERTED TO A SELF-PROPELLED, SELF-DIRECTED CARGO VESSEL.  NOR
WAS SHE EVEN PREPARED FOR USE AS A BARGE TO TRANSPORT CARGO FROM ONE
LOCATION TO ANOTHER.  IN POINT OF FACT IT WOULD BE MORE ACCURATE TO
NOTE THAT THE SHIP ITSELF WAS NOT CONVERTED TO ANY NAVIGATIONAL USE. 
WHILE ITS HOLD WAS UTILIZED AS A GRANARY OR WAREHOUSE, THE VESSEL IPSO
FACTO WAS NOT REACTIVATED FOR SERVICE IN NAVIGATION. 

A SECOND ASPECT OF THE SHIP'S HISTORY SINCE 1954 IS THE MOVEMENT
BETWEEN THE DEAD FLEET AND THE GRAIN ELEVATOR.  THIS MOVEMENT WAS BY
TUG WITHOUT ASSISTANCE FROM THE SHIP'S MOTIVE OR DIRECTIONAL EQUIPMENT
WHICH, INDEED, WAS NOT IN THE LEAST USABLE.  THE MEN ABOARD WERE NOT
SIGNED ON AS SEAMEN, AND THE ENTIRE OPERATION WAS DIRECTED AND
CONTROLLED BY THE TUG CAPTAIN.  UNLIKE A BARGE, THE S.S. HARRY LANE WAS
NOT MOVED IN ORDER TO TRANSPORT COMMODITIES FROM ONE LOCATION TO
ANOTHER.  IT SERVED AS A MOBILE WAREHOUSE WHICH WAS FILLED AND THEN
MOVED OUT OF THE WAY TO PERFORM ITS FUNCTION OF STORING GRAIN UNTIL
NEEDED, AT WHICH TIME IT WAS RETURNED AND UNLOADED. 

IN LIGHT OF THE ABOVE CIRCUMSTANCES, WE CANNOT SAY AS A MATTER OF LAW
THAT THE S.S.  HARRY LANE HAD BEEN CONVERTED INTO A VESSEL IN
NAVIGATION, AND THAT THE FINDINGS OF THE TRIAL COURT WERE CLEARLY
ERRONEOUS.  (FN2) 

SINCE WE ARE UNWILLING TO UPSET THE TRIAL COURT'S FACTUAL
DETERMINATION THAT THE S.S. HARRY LANE WAS NOT A VESSEL IN NAVIGATION,
IT FOLLOWS THAT THERE WAS NO WARRANTY OF THE SHIP'S SEAWORTHINESS. 
WEST V. UNITED STATES, SUPRA; KISSINGER V. UNITED STATES, 176 F. SUPP.
828 (1959).  (FN3)  THIS LIMITATION IS ANALOGOUS TO THAT APPLIED IN
LIBELS UNDER THE JONES ACT, WHERE IT HAS LONG BEEN HELD THAT RECOVERY
IS PRECLUDED IF THE SHIP INVOLVED IS NOT A VESSEL IN NAVIGATION. 
DESPER V. STARVED ROCK FERRY CO., 342 U.S. 187 (1952); HAWN V. AMERICAN
S.S. CO., 107 F.2D 999 (1939). 

THIS DISPOSITION OF THE CASE MAKES IT UNNECESSARY FOR US TO PASS UPON
THE REMAINING QUESTION, I.E., WHETHER A SHORE-BASED MARINE LEG IS
WITHIN THE WARRANTY OF SEAWORTHINESS IN THE CIRCUMSTANCES HERE
DISCLOSED.  AFFIRMED. 

FN1  OTHER PARTIES, NOT CONCERNED WITH OUR DISPOSITION, WERE
IMPLEADED. 

FN2  FOR CASES INVOLVING SIMILAR FACTS AND TO THE SAME EFFECT SEE
HAWN V. AMERICAN S. S. CO., 107 F.2D 999 (C.A.2D CIR. 1939); KISSINGER
V. UNITED STATES, 176 F. SUPP.  828 (D.C.E.D.N.Y. 1959); KROLCZYK V.
WATERWAYS NAVIGATION CO., 151 F. SUPP. 873 (D.C.E.D.  MICH. 1957). 
LAWLOR V. SOCONY-VACUUM OIL CO., 275 F.2D 599 (C.A.2D CIR. 1960), IS
NOT CONTRA.  THERE MINOR REPAIRS WERE UNDERWAY ON AN ACTIVE SHIP WITH A
FULL CREW ABOARD. 

FN3  THE VIEW THAT A VESSEL NOT IN NAVIGATION EXTENDS NO WARRANTY HAS
OFTEN BEEN EXPRESSED IN THE MORE FAMILIAR CONTEXT OF TO WHOM DOES THE
WARRANTY EXTEND.  E.G., UNION CARBIDE CORP. V. GOETT, 256 F.2D 449
(C.A. 4TH CIR. 1958).  IMPLICIT WITHIN SUCH CASES IS THE REASONING THAT
THOSE WORKING ON VESSELS NOT IN NAVIGATION ARE NOT SEAMEN (OR DOING
SEAMEN'S WORK) AND CONSEQUENTLY NOT AMONG THOSE EMPLOYEES PROTECTED BY
THE WARRANTY OF SEAWORTHINESS. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

FOR THE REASONS STATED BY JUDGE SOBELOFF IN THE COURT OF APPEALS, I
BELIEVE THIS SHIP AT THE TIME OF THE ACCIDENT WAS NOT A "DEAD SHIP" BUT
"A VESSEL IN NAVIGATION," BECAUSE IT WAS "BEING ACTUALLY USED AS A
BARGE, AND TRANSPORTING A CARGO."  282 F.2D 413, 419. 
..END :

















MARTIN V. WALTON 368 U.S. 25 


NO. 30.  ARGUED OCTOBER 17, 1961 - DECIDED NOVEMBER 6, 1961 - 187 KAN.
473, 357 P.2D 782, APPEAL DISMISSED. 


UNDER A KANSAS STATUTE AND RULES PROMULGATED BY THE SUPREME COURT OF
KANSAS, A RESIDENT OF KANSAS WHO WAS DULY LICENSED TO PRACTICE LAW IN
BOTH KANSAS AND MISSOURI AND MAINTAINED LAW OFFICES IN BOTH STATES WAS
DENIED THE RIGHT TO APPEAR IN A KANSAS COURT WITHOUT ASSOCIATING LOCAL
COUNSEL, SOLELY BECAUSE HE PRACTICED REGULARLY IN MISSOURI.  HELD:  THE
STATE STATUTE AND RULES ARE NOT BEYOND THE ALLOWABLE RANGE OF STATE
ACTION UNDER THE FOURTEENTH AMENDMENT, AND THIS APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION.  PP. 25-26. 

MARTIN V. WALTON, PROBATE JUDGE OF JOHNSON COUNTY, KANSAS. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION.  UPON
PLENARY CONSIDERATION, WE ARE SATISFIED THAT, BOTH ON THEIR FACE AND AS
APPLIED TO APPELLANT, KAN. GEN. STAT., 1949, SEC. 7-104, AND AMENDED
KAN. SUP. CT. RULES 41 AND 54 PROMULGATED BY THE SUPREME COURT OF
KANSAS, ACTING WITHIN ITS COMPETENCE UNDER STATE LAW, ARE NOT BEYOND
THE ALLOWABLE RANGE OF STATE ACTION UNDER THE FOURTEENTH AMENDMENT. 
SEE, E.G., DENT V. WEST VIRGINIA, 129 U.S. 114; GRAVES V. MINNESOTA,
272 U.S. 425; SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 239;
HITCHCOCK V. COLLENBERG, 353 U.S. 919; KOVRAK V. GINSBURG, 358 U.S.
52.  WE CANNOT DISREGARD THE REASONS GIVEN BY THE KANSAS SUPREME COURT
FOR THE RULES IN QUESTION.  187 KAN. 473, 357 P.2D 782.  NOR DOES THE
FACT THAT THE RULES MAY RESULT IN "INCIDENTAL INDIVIDUAL INEQUALITY"
MAKE THEM OFFENSIVE TO THE FOURTEENTH AMENDMENT.  PHELPS V. BOARD OF
EDUCATION, 300 U.S. 319, 324. 

THE CHIEF JUSTICE CONCURS IN THE RESULT. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE DISPOSITION OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

IF THIS WERE A CASE WHERE AN ATTORNEY, THOUGH A MEMBER OF THE KANSAS
BAR, PRACTICED LAW ONLY IN MISSOURI, THE REASONS FOR RULES 41 AND 54,*
AS DECLARED BY THE KANSAS SUPREME COURT, WOULD BE ADEQUATE TO SUSTAIN
THEM.  FOR WE ARE TOLD BY THAT COURT THAT THEY WERE DESIGNED "TO
PROVIDE LITIGANTS IN (KANSAS) TRIBUNALS WITH THE SERVICE OF A RESIDENT
ATTORNEY FAMILIAR WITH LOCAL RULES, PROCEDURE AND PRACTICE AND UPON
WHOM SERVICE MAY BE HAD IN ALL MATTERS CONNECTED WITH ACTIONS OR
PROCEEDINGS PROPER TO BE SERVED UPON AN ATTORNEY OF RECORD."  187 KAN.
473, 485, 357 P.2D 782, 791. 

*RULE 41 PROVIDES IN RELEVANT PART: 

"PROVIDED FURTHER HOWEVER, THE AUTHORITY GRANTED TO PRACTICE LAW
SHALL NOT BE EXERCISED EXCEPT AS PROVIDED UNDER RULE NO. 54 INFRA, WHEN
THE LICENSEE HEREIN HAS BEEN ADMITTED TO THE BAR OF ANOTHER STATE OR
TERRITORY AND IS REGULARLY ENGAGED IN THE PRACTICE OF LAW IN SUCH OTHER
STATE OR TERRITORY." 

RULE 54 PROVIDES: 

"AN ATTORNEY REGULARLY PRACTICING OUTSIDE OF THIS STATE AND IN GOOD
STANDING AS A MEMBER OF THE BAR OF THE PLACE OF HIS REGULAR PRACTICE
MAY BE RECOGNIZED AS AN ATTORNEY BY THE COURTS, COMMISSIONS, AND
AGENCIES OF THIS STATE, FOR ANY ACTION OR PROCEEDING, BUT ONLY IF HE
HAS ASSOCIATED WITH HIM AS ATTORNEY OF RECORD IN SUCH ACTION OR
PROCEEDING A MEMBER OF THE BAR OF THIS STATE QUALIFIED UNDER THE
PROVISIONS OF G.S. 1949, 7-104, UPON WHOM SERVICE MAY BE HAD IN ALL
MATTERS CONNECTED WITH SUCH ACTION OR PROCEEDING PROPER TO BE SERVED
UPON AN ATTORNEY OF RECORD." 

BUT THE FACTS ASSUMED ARE NOT THE FACTS OF THIS CASE.  THE FACTS
ALLEGED IN THE PETITION FOR WRIT OF MANDAMUS, WHICH ARE ASSUMED TO BE
TRUE BY THE MOTION TO QUASH, SHOW THE FOLLOWING:  PETITIONER, SINCE
1948, HAS CONTINUOUSLY MAINTAINED LAW OFFICES AND HAD A GENERAL
PRACTICE OF LAW BOTH IN KANSAS CITY, MISSOURI, AND IN MISSION, KANSAS,
THE LATTER BEING A SUBURB OF KANSAS CITY, MISSOURI.  PETITIONER'S HOME
IS MISSION, KANSAS.  HE IS CITY ATTORNEY FOR MISSION AND A MEMBER OF
THE BOARD OF TAX APPEALS OF KANSAS.  MANY OF HIS CLIENTS LIVE IN ONE
STATE AND WORK IN THE OTHER.  THEIR PROBLEMS INVOLVE THE LAWS AND
PROCEDURES OF BOTH STATES.  HE CONSULTS WITH AS MANY CLIENTS IN HIS
KANSAS OFFICE OR HOME AS IN HIS MISSOURI OFFICE.  ABOUT ONE-HALF OF HIS
EARNED INCOME IS DERIVED FROM HIS KANSAS PRACTICE, A LARGE PORTION OF
WHICH CONSISTS OF PRACTICE IN THE PROBATE COURT.  TO USE THE WORDS OF
THE KANSAS SUPREME COURT, QUOTED ABOVE, PETITIONER IS A "RESIDENT
ATTORNEY FAMILIAR WITH LOCAL RULES, PROCEDURE AND PRACTICE AND UPON
WHOM SERVICE MAY BE HAD IN ALL MATTERS." 

FOUR OTHER FACTORS WERE MENTIONED BY THE KANSAS SUPREME COURT IN
SUSTAINING THESE RULES: 

1.  KANSAS COURTS AND COMMISSIONS "ENCOUNTERED DIFFICULTY IN
PROCURING THE PRESENCE OF THE KANSAS LICENSED ATTORNEYS OFFICED IN
MISSOURI AT THE CALL OF  ...  THEIR DOCKETS." 

2.  THERE HAS BEEN AN "INABILITY OF KANSAS OFFICED ATTORNEYS TO
PROCURE SERVICE ON MISSOURI OFFICED KANSAS ATTORNEYS WITHOUT HAVING TO
PROCEED TO ANOTHER STATE." 

3.  THERE HAS BEEN A "FAILURE OF SOME KANSAS LICENSED ATTORNEYS
OFFICED IN MISSOURI TO ANSWER CALLS TO APPEAR ON MATTERS OF URGENCY." 

4.  THERE HAS BEEN A "FAILURE OF THOSE ATTORNEYS TO FAMILIARIZE
THEMSELVES WITH THE RULES OF LOCAL PRACTICE AND PROCEDURE BY REASON OF
THEIR INFREQUENT APPEARANCE BEFORE THE KANSAS COURTS AND TRIBUNALS." 
187 KAN. 473, 482-483, 357 P.2D 782, 790. 

THESE FOUR FACTORS, APPLICABLE PERHAPS TO "KANSAS LICENSED ATTORNEYS
OFFICED IN MISSOURI" (187 KAN., AT 482, 357 P.2D, AT 790), PLAINLY HAVE
NO RELEVANCY TO PETITIONER WHO HAS AN ACTIVE PRACTICE IN KANSAS.  THIS
CASE IS THEREFORE QUITE DIFFERENT FROM THOSE WHERE "INCIDENTAL
INDIVIDUAL INEQUALITY" (PHELPS V. BOARD OF EDUCATION, 300 U.S. 319,
324) RESULTS FROM PUTTING MANY INTO ONE CLASS, TREATING THEM ALL ALIKE,
AND DISREGARDING SLIGHT OR MINOR DIFFERENCES AMONG THEM. 

IF KANSAS CAN DENY THIS LAWYER HIS LIVELIHOOD, SO CAN MISSOURI.  WHEN
KANSAS DENIES HIM THE RIGHT TO PURSUE HIS LIVELIHOOD, IT DESTROYS HIS
COMPETENCE FOR REASONS THAT HAVE NO RELATION TO COMPETENCY.  STATES
HAVE GREAT LEEWAY IN MAKING CLASSIFICATIONS, IN PROVIDING GENERAL
RULES, IN DIFFERENTIATING EVILS BY BROAD LINES OR BY NARROW ONES. 
WHERE, HOWEVER, A STATE DECLARES WHAT PURPOSE THE LAW HAS, NO ROOM IS
LEFT TO CONCEIVE OF ANY OTHER PURPOSE IT MAY SERVE.  SEE ALLIED STORES
OF OHIO, INC., V. BOWERS, 358 U.S. 522, 530.  A LAW, FAIR ON ITS FACE,
MAY BE APPLIED IN A WAY THAT VIOLATES THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  YICK WO V. HOPKINS, 118 U.S. 356, 373-374. 
HERE THE LAW AS APPLIED HAS NO RELATION WHATSOEVER TO THE DECLARED EVIL
AT WHICH THE LAW WAS AIMED.  IT IS, THEREFORE, INVIDIOUS IN ITS
APPLICATION, STRIKING WITHOUT REASON AT A CITIZEN'S ACTIVITIES WHICH
TOUCH SEVERAL STATES, AS CONSTITUTIONALLY THEY ARE ENTITLED TO DO UNDER
OUR FEDERAL REGIME.  CF. EDWARDS V. CALIFORNIA, 314 U.S. 160. 

AS WE SAID IN SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 239: 

"A STATE CAN REQUIRE HIGH STANDARDS OF QUALIFICATION, SUCH AS GOOD
MORAL CHARACTER OR PROFICIENCY IN ITS LAW, BEFORE IT ADMITS AN
APPLICANT TO THE BAR, BUT ANY QUALIFICATION MUST HAVE A RATIONAL
CONNECTION WITH THE APPLICANT'S FITNESS OR CAPACITY TO PRACTICE LAW
...  .  OBVIOUSLY AN APPLICANT COULD NOT BE EXCLUDED MERELY BECAUSE HE
WAS A REPUBLICAN OR A NEGRO OR A MEMBER OF A PARTICULAR CHURCH.  EVEN
IN APPLYING PERMISSIBLE STANDARDS, OFFICERS OF A STATE CANNOT EXCLUDE
AN APPLICANT WHEN THERE IS NO BASIS FOR THEIR FINDING THAT HE FAILS TO
MEET THESE STANDARDS, OR WHEN THEIR ACTION IS INVIDIOUSLY
DISCRIMINATORY." 

ACCORDINGLY, THE APPLICATION OF THESE RULES TO PETITIONER CAUSES HIM
TO BE SINGLED OUT FOR DISCRIMINATORY TREATMENT, EVEN THOUGH HE HAS
PASSED THE KANSAS BAR AND IS EQUALLY AS COMPETENT AS OTHER KANSAS
LAWYERS TO PRACTICE IN THAT STATE.  THE FACT THAT AN ATTORNEY MAINTAINS
AN OFFICE AND PRACTICES LAW IN TWO STATES HAS NO "RATIONAL CONNECTION"
WITH HIS "FITNESS OR CAPACITY TO PRACTICE LAW" (SCHWARE V. BOARD OF BAR
EXAMINERS, SUPRA, 239) AND DOES NOT WITHOUT MORE GIVE EITHER STATE THE
RIGHT TO DEPRIVE HIM OF HIS LIVELIHOOD IN LIGHT OF THE REQUIREMENTS OF
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
..END :







DEPARTMENT OF REVENUE OF ILLINOIS V. UNITED STATES 368 U.S. 30 


NO. 245.  DECIDED NOVEMBER 6, 1961 - JUDGMENT VACATED AND CASE REMANDED
REPORTED BELOW:  191 F. SUPP. 723. 


DEPARTMENT OF REVENUE OF ILLINOIS ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

IN THE LIGHT OF THE REPRESENTATIONS OF THE SOLICITOR GENERAL AND UPON
CONSIDERATION OF THE ENTIRE RECORD, THE JUDGMENT OF THE DISTRICT COURT
IS VACATED.  THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
CONSIDERATION IN THE LIGHT OF DEVELOPMENTS WHICH HAVE OCCURRED SINCE
THE INJUNCTION WAS ISSUED, WITHOUT PREJUDICE TO CONSIDERATION BY THAT
COURT OF ANY APPLICATION BY APPELLEES FOR SUCH TEMPORARY EQUITABLE
RELIEF AS THEY MAY REQUEST PENDING THE FURTHER PROCEEDINGS HEREBY
ORDERED. 
..END :










CUMMINGS V. HUISKAMP 368 U.S. 30 


NO. 511, MISC.  DECIDED NOVEMBER 6, 1961. 


CUMMINGS V. HUISKAMP, JUDGE, LEE COUNTY DISTRICT COURT, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















PEPE V. DELAWARE 368 U.S. 31 


NO. 345.  DECIDED NOVEMBER 6, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  53 DEL. - , 171 A.2D 216. 


PEPE V. DELAWARE. 

APPEAL FROM THE SUPREME COURT OF DELAWARE. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI DENIED. 
..END :

















PONCA WHOLESALE MERCANTILE CO. V. ROCKY MOUNTAIN WHOLESALE CO. 368 U.S.
31 


NO. 352.  DECIDED NOVEMBER 6, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  68 N.M. 228, 360 P.2D
643. 


PONCA WHOLESALE MERCANTILE CO. V. ROCKY MOUNTAIN WHOLESALE CO., INC. 

APPEAL FROM THE SUPREME COURT OF NEW MEXICO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















SCHROEDER V. WILLIAMS 368 U.S. 32 


NO. 357.  DECIDED NOVEMBER 6, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  171 NEB. 792, 107 N.W.2D 750. 


SCHROEDER ET AL. V. WILLIAMS ET AL. 

APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MURPHY V. WATERFRONT COMMISSION OF NEW YORK HARBOR 368 U.S. 32 


NO. 362.  DECIDED NOVEMBER 6, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  35 N.J. 62, 171 A.2D 295. 


MURPHY ET AL. V. WATERFRONT COMMISSION OF NEW YORK HARBOR. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















TWENTIETH CENTURY-FOX FILM CORP. V. GEROSA 368 U.S. 33 


NO. 373.  DECIDED NOVEMBER 6, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


TWENTIETH CENTURY-FOX FILM CORP. V. GEROSA, COMPTROLLER OF NEW YORK
CITY. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :












OWENS V. ELLIS 368 U.S. 33 


NO. 506, MISC.  DECIDED NOVEMBER 6, 1961. 


OWENS V. ELLIS, CORRECTIONS DIRECTOR, ET AL. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :



















WINKLE V. BANNAN 368 U.S. 34 


NO. 93, MISC.  DECIDED NOVEMBER 6, 1961 - CERTIORARI GRANTED; JUDGMENT
VACATED; CASE REMANDED. 


WINKLE V. BANNAN, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND, AS
SUGGESTED BY THE ATTORNEY GENERAL OF MICHIGAN, THE CASE IS REMANDED FOR
CONSIDERATION IN LIGHT OF MAPP V. OHIO, 367 U.S. 643. 
..END :















COATES V. WALTERS 368 U.S. 34 


NO. 339, MISC.  DECIDED NOVEMBER 6, 1961 - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  9 N.Y.2D 242, 173
N.E.2D 797. 


COATES V. WALTERS. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CHOBOT V. WISCONSIN 368 U.S. 15 


NO. 146.  DECIDED OCTOBER 23, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  12 WIS. 2D 110, 106
N.W.2D 286. 


CHOBOT V. WISCONSIN. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE HARLAN ARE OF
THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :













KATZ V. SINGERMAN 368 U.S. 15 


NO. 298.  DECIDED OCTOBER 23, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  241 LA. 103, 127 SO. 2D 515. 


KATZ ET AL. V. SINGERMAN ET AL. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. GALLION
368 U.S. 16 


NO. 303.  DECIDED OCTOBER 23, 1961 - REPORTED BELOW:  290 F.2D 337. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED TO THE COURT OF
APPEALS WITH INSTRUCTIONS TO DIRECT THE DISTRICT COURT TO PROCEED WITH
TRIAL OF THE ISSUES UNLESS WITHIN A REASONABLE TIME, NO LATER THAN
JANUARY 2, 1962, THE STATE OF ALABAMA SHALL HAVE ACCORDED PETITIONER AN
OPPORTUNITY TO BE HEARD ON ITS MOTION TO DISSOLVE THE STATE RESTRAINING
ORDER OF JUNE 1, 1956, AND UPON THE MERITS OF THE ACTION IN WHICH SUCH
ORDER WAS ISSUED. 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. GALLION,
ATTORNEY GENERAL OF ALABAMA, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT BELOW
IS VACATED, AND THE CASE IS REMANDED TO THE COURT OF APPEALS WITH
INSTRUCTIONS TO DIRECT THE DISTRICT COURT TO PROCEED WITH THE TRIAL OF
THE ISSUES IN THIS ACTION UNLESS WITHIN A REASONABLE TIME, NO LATER
THAN JANUARY 2, 1962, THE STATE OF ALABAMA SHALL HAVE ACCORDED TO
PETITIONER AN OPPORTUNITY TO BE HEARD ON ITS MOTION TO DISSOLVE THE
STATE RESTRAINING ORDER OF JUNE 1, 1956, AND UPON THE MERITS OF THE
ACTION IN WHICH SUCH ORDER WAS ISSUED.  PENDING THE FINAL DETERMINATION
OF ALL PROCEEDINGS IN THE STATE ACTION, THE DISTRICT COURT IS
AUTHORIZED TO RETAIN JURISDICTION OVER THE FEDERAL ACTION AND TO TAKE
SUCH STEPS AS MAY APPEAR NECESSARY AND APPROPRIATE TO ASSURE A PROMPT
DISPOSITION OF ALL ISSUES INVOLVED IN, OR CONNECTED WITH, THE STATE
ACTION.  TRUAX V. CORRIGAN, 257 U.S. 312, 331-334. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














AMERICAN CHICLE CO. V. STATE TAX COMMISSION OF NEW YORK 368 U.S. 17 


NO. 301.  DECIDED OCTOBER 23, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  9 N.Y.2D 883, 175
N.E.2D 829. 


AMERICAN CHICLE CO. V. STATE TAX COMMISSION OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















TINSLEY V. CITY OF RICHMOND 368 U.S. 18 


NO. 315.  DECIDED OCTOBER 23, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  202 VA. 707, 119 S.E.2D
488. 


TINSLEY V. CITY OF RICHMOND. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :













ANDERSON V. BALL 368 U.S. 18 


NO. 326.  DECIDED OCTOBER 23, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  21 ILL. 2D 396, 172 N.E.2D 760. 


ANDERSON ET AL. V. BALL, COUNTY TREASURER. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















DEGREGORY V. ATTORNEY GENERAL OF NEW HAMPSHIRE 368 U.S. 19 


NO. 237, MISC.  DECIDED OCTOBER 23, 1961 - 103 N.H. 214, 169 A.2D 1,
AFFIRMED. 


DEGREGORY V. ATTORNEY GENERAL OF NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR.
JUSTICE BRENNAN DISSENT. 
..END :















GREMILLION V. UNITED STATES 368 U.S. 11 


NO. 200.  DECIDED OCTOBER 16, 1961 - 194 F. SUPP. 182, AFFIRMED. 


GREMILLION ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















RILEY V. PENNSYLVANIA READING SEASHORE LINES 368 U.S. 11 


NO. 427, MISC.  DECIDED OCTOBER 16, 1961 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


RILEY V. PENNSYLVANIA READING SEASHORE LINES. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















ROOSEVELT RACEWAY, INC. V. MONAGHAN 368 U.S. 12 


NO. 299.  DECIDED OCTOBER 16, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  9 N.Y.2D 293, 174
N.E.2D 71. 


ROOSEVELT RACEWAY, INC., V. MONAGHAN, COMMISSIONER OF HARNESS RACING. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN WOULD NOTE PROBABLE JURISDICTION. 
..END :














CASTLE V. UNITED STATES 368 U.S. 13 


NO. 60, MISC.  DECIDED OCTOBER 16, 1961 - REPORTED BELOW:  287 F.2D
657. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED FOR
RESENTENCING, SINCE PETITIONER WAS GUILTY OF BUT A SINGLE OFFENSE UNDER
18 U.S.C. SEC. 2314. 

CASTLE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  WE ARE IN AGREEMENT WITH THE
REPRESENTATIONS OF THE SOLICITOR GENERAL THAT, UNDER THE PRINCIPLES
ANNOUNCED IN BELL V. UNITED STATES, 349 U.S. 81, THE PETITIONER WAS
GUILTY OF BUT A SINGLE OFFENSE UNDER 18 U.S.C. SEC. 2314.  IN LIGHT OF
SUCH REPRESENTATIONS AND UPON CONSIDERATION OF THE ENTIRE RECORD, THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS
WITH INSTRUCTIONS TO REMIT TO THE DISTRICT COURT FOR RESENTENCING IN
ACCORDANCE WITH THIS OPINION. 
..END :




GOODMAN V. UNITED STATES 368 U.S. 14 


NO. 281, MISC.  DECIDED OCTOBER 16, 1961 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  289 F.2D 256. 


GOODMAN V. UNITED STATES ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  IN THE LIGHT OF THE
REPRESENTATIONS OF THE SOLICITOR GENERAL AND UPON CONSIDERATION OF THE
ENTIRE RECORD, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT TO PERMIT THE UNITED STATES TO
FILE AN APPROPRIATE MOTION IN THAT COURT TO WITHDRAW ITS PRIOR
APPLICATION FOR AN ORDER DIRECTING PETITIONER TO TESTIFY. 
..END :











HUBBARD V. BOARD OF EDUCATION OF NEW YORK CITY 368 U.S. 1 


NO. 307, MISC.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HUBBARD V. BOARD OF EDUCATION OF NEW YORK CITY. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















JOHNSON V. DISTRICT COURT OF IOWA IN AND FOR FAYETTE COUNTY 368 U.S. 1 


NO. 331, MISC.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


JOHNSON ET AL. V. DISTRICT COURT OF IOWA IN AND FOR FAYETTE COUNTY. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















SOERGEL V. ALLEN 368 U.S. 2 


NO. 117.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 9 N.Y.2D 633, 172 N.E.2D 84. 


SOERGEL ET AL. V. ALLEN, COMMISSIONER OF EDUCATION OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SPENCER V. HIBERNIA BANK 368 U.S. 2 


NO. 176.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  186 CAL. APP. 2D 702, 9 CAL. RPTR.  867. 


SPENCER, ADMINISTRATRIX, ET AL. V. HIBERNIA BANK ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















SECURITY-FIRST NATIONAL BANK OF LOS ANGELES V. FRANCHISE TAX BOARD OF
CALIFORNIA 368 U.S. 3 


NO. 122.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  55 CAL. 2D 407, 359 P.2D 625. 


SECURITY-FIRST NATIONAL BANK OF LOS ANGELES ET AL. V. FRANCHISE TAX
BOARD OF CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














ABLEMAN V. CITY OF CEDAR RAPIDS 368 U.S. 3 


NO. 246.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  252 IOWA 948, 108
N.W.2D 253. 


ABLEMAN ET AL. V. CITY OF CEDAR RAPIDS. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















STANDARD DRUG CO., INC. V. GENERAL ELECTRIC CO. 368 U.S. 4 


NO. 127.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  202 VA. 367, 117 S.E.2D
289. 


STANDARD DRUG CO. INC., V. GENERAL ELECTRIC CO. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CRUZ V. COLORADO 368 U.S. 4 


NO. 66, MISC.  DECIDED OCTOBER 9, 1961 - CERTIORARI GRANTED; JUDGMENT
REVERSED; AND CASE REMANDED. 


CRUZ V. COLORADO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  UPON CONSIDERATION OF THE ENTIRE
RECORD AND THE CONFESSION OF ERROR OF THE ATTORNEY GENERAL OF COLORADO,
THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED. 
..END :















MILK TRANSPORT, INC. V. UNITED STATES 368 U.S. 5 


NO. 95.  DECIDED OCTOBER 9, 1961 - 190 F. SUPP. 350, AFFIRMED. 


MILK TRANSPORT, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

PER CURIAM. 

THE MOTION OF W.W. HUGHES FOR LEAVE TO FILE A BRIEF, AS AMICUS
CURIAE, IS DENIED.  THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT
IS AFFIRMED. 
..END :
















LYNN V. MCELROY 368 U.S. 5 


NO. 104, MISC.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED - REPORTED
BELOW:  284 F.2D 299. 


LYNN V. MCELROY, CIRCUIT COURT JUDGE, ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :

















DILLNER TRANSFER CO. V. UNITED STATES 368 U.S. 6 


NO. 188.  DECIDED OCTOBER 9, 1961 - 193 F. SUPP. 823, AFFIRMED. 


DILLNER TRANSFER CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















GENCO V. GENCO 368 U.S. 6 


NO. 277, MISC.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 171 OHIO ST. 450, 172 N.E.2D 9. 


GENCO V. GENCO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















GOSLIN V. BEAZLEY 368 U.S. 7 


NO. 215.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  339 S.W.2D 689. 


GOSLIN ET AL. V. BEAZLEY ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, FIRST SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















MCMAHON V. MILAM MANUFACTURING CO. 368 U.S. 7 


NO. 218.  DECIDED OCTOBER 9, 1961 - CERTIORARI GRANTED AND JUDGMENT
REVERSED - REPORTED BELOW:  - MISS.  - , 127 SO. 2D 647. 


MCMAHON ET AL. V. MILAM MANUFACTURING CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
MISSISSIPPI. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236. 
..END :
















OREGON, SMITH V. GLADDEN 368 U.S. 8 


NO. 23, MISC.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


OREGON EX REL. SMITH V. GLADDEN, WARDEN. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HAMILTON, ALIAS HAYDEN V. SUPERIOR COURT OF CALIFORNIA, IN AND FOR MARIN
COUNTY 368 U.S. 8 


NO. 105, MISC.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HAMILTON, ALIAS HAYDEN, V. SUPERIOR COURT OF CALIFORNIA, IN AND FOR
MARIN COUNTY. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :













CEPERO V. RINCON DE GAUTIER 368 U.S. 9 


NO. 108, MISC.  DECIDED OCTOBER 9, 1961. 


CEPERO V. RINCON DE GAUTIER, CITY MANAGER, SAN JUAN. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















CEPERO V. PUERTO RICO 368 U.S. 9 


NO. 164, MISC.  DECIDED OCTOBER 9, 1961. 


CEPERO V. PUERTO RICO ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















CEPERO V. PUERTO RICO 368 U.S. 9 


NO. 382, MISC.  DECIDED OCTOBER 9, 1961. 


CEPERO V. PUERTO RICO ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















LONGORIA V. DELAWARE 368 U.S. 10 


NO. 219, MISC.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 53 DEL. - , 168 A.2D 695. 


LONGORIA V. DELAWARE. 

APPEAL FROM THE SUPREME COURT OF DELAWARE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MCLAIN V. CALIFORNIA 368 U.S. 10 


NO. 129, MISC.  DECIDED OCTOBER 9, 1961 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 55 CAL. 2D 78, 357 P.2D 1080. 


MCLAIN V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















TORCASO V. WATKINS 367 U.S. 488 


NO. 373.  ARGUED APRIL 24, 1961 - DECIDED JUNE 19, 1961 - 223 MD. 49,
162 A.2D 438, REVERSED. 


APPELLANT WAS APPOINTED BY THE GOVERNOR OF MARYLAND TO THE OFFICE OF
NOTARY PUBLIC; BUT HE WAS DENIED A COMMISSION BECAUSE HE WOULD NOT
DECLARE HIS BELIEF IN GOD, AS REQUIRED BY THE MARYLAND CONSTITUTION. 
CLAIMING THAT THIS REQUIREMENT VIOLATED HIS RIGHTS UNDER THE FIRST AND
FOURTEENTH AMENDMENTS, HE SUED IN A STATE COURT TO COMPEL ISSUANCE OF
HIS COMMISSION; BUT RELIEF WAS DENIED.  THE STATE COURT OF APPEALS
AFFIRMED, HOLDING THAT THE STATE CONSTITUTIONAL PROVISION IS SELF
EXECUTING WITHOUT NEED FOR IMPLEMENTING LEGISLATION AND REQUIRES
DECLARATION OF A BELIEF IN GOD AS A QUALIFICATION FOR OFFICE.  HELD:
THIS MARYLAND TEST FOR PUBLIC OFFICE CANNOT BE ENFORCED AGAINST
APPELLANT, BECAUSE IT UNCONSTITUTIONALLY INVADES HIS FREEDOM OF BELIEF
AND RELIGION GUARANTEED BY THE FIRST AMENDMENT AND PROTECTED BY THE
FOURTEENTH AMENDMENT FROM INFRINGEMENT BY THE STATES.  PP. 489-496. 

TORCASO V. WATKINS, CLERK. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ARTICLE 37 OF THE DECLARATION OF RIGHTS OF THE MARYLAND CONSTITUTION
PROVIDES: 

"NO RELIGIOUS TEST OUGHT EVER TO BE REQUIRED AS A QUALIFICATION FOR
ANY OFFICE OF PROFIT OR TRUST IN THIS STATE, OTHER THAN A DECLARATION
OF BELIEF IN THE EXISTENCE OF GOD  ...  ." 

THE APPELLANT TORCASO WAS APPOINTED TO THE OFFICE OF NOTARY PUBLIC BY
THE GOVERNOR OF MARYLAND BUT WAS REFUSED A COMMISSION TO SERVE BECAUSE
HE WOULD NOT DECLARE HIS BELIEF IN GOD.  HE THEN BROUGHT THIS ACTION IN
A MARYLAND CIRCUIT COURT TO COMPEL ISSUANCE OF HIS COMMISSION, CHARGING
THAT THE STATE'S REQUIREMENT THAT HE DECLARE THIS BELIEF VIOLATED "THE
FIRST AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED
STATES  ...  ."  (FN1)  THE CIRCUIT COURT REJECTED THESE FEDERAL
CONSTITUTIONAL CONTENTIONS, AND THE HIGHEST COURT OF THE STATE, THE
COURT OF APPEALS, AFFIRMED, (FN2) HOLDING THAT THE STATE CONSTITUTIONAL
PROVISION IS SELF-EXECUTING AND REQUIRES DECLARATION OF BELIEF IN GOD
AS A QUALIFICATION FOR OFFICE WITHOUT NEED FOR IMPLEMENTING
LEGISLATION.  THE CASE IS THEREFORE PROPERLY HERE ON APPEAL UNDER 28
U.S.C. SEC. 1257(2). 

THERE IS, AND CAN BE, NO DISPUTE ABOUT THE PURPOSE OR EFFECT OF THE
MARYLAND DECLARATION OF RIGHTS REQUIREMENT BEFORE US - IT SETS UP A
RELIGIOUS TEST WHICH WAS DESIGNED TO AND, IF VALID, DOES BAR EVERY
PERSON WHO REFUSES TO DECLARE A BELIEF IN GOD FROM HOLDING A PUBLIC
"OFFICE OF PROFIT OR TRUST" IN MARYLAND.  THE POWER AND AUTHORITY OF
THE STATE OF MARYLAND THUS IS PUT ON THE SIDE OF ONE PARTICULAR SORT OF
BELIEVERS - THOSE WHO ARE WILLING TO SAY THEY BELIEVE IN "THE EXISTENCE
OF GOD."  IT IS TRUE THAT THERE IS MUCH HISTORICAL PRECEDENT FOR SUCH
LAWS.  INDEED, IT WAS LARGELY TO ESCAPE RELIGIOUS TEST OATHS AND
DECLARATIONS THAT A GREAT MANY OF THE EARLY COLONISTS LEFT EUROPE AND
CAME HERE HOPING TO WORSHIP IN THEIR OWN WAY.  IT SOON DEVELOPED,
HOWEVER, THAT MANY OF THOSE WHO HAD FLED TO ESCAPE RELIGIOUS TEST OATHS
TURNED OUT TO BE PERFECTLY WILLING, WHEN THEY HAD THE POWER TO DO SO,
TO FORCE DISSENTERS FROM THEIR FAITH TO TAKE TEST OATHS IN CONFORMITY
WITH THAT FAITH.  THIS BROUGHT ON A HOST OF LAWS IN THE NEW COLONIES
IMPOSING BURDENS AND DISABILITIES OF VARIOUS KINDS UPON VARIED BELIEFS
DEPENDING LARGELY UPON WHAT GROUP HAPPENED TO BE POLITICALLY STRONG
ENOUGH TO LEGISLATE IN FAVOR OF ITS OWN BELIEFS.  THE EFFECT OF ALL
THIS WAS THE FORMAL OR PRACTICAL "ESTABLISHMENT" OF PARTICULAR
RELIGIOUS FAITHS IN MOST OF THE COLONIES, WITH CONSEQUENT BURDENS
IMPOSED ON THE FREE EXERCISE OF THE FAITHS OF NONFAVORED BELIEVERS. 
(FN3) 

THERE WERE, HOWEVER, WISE AND FAR-SEEING MEN IN THE COLONIES - TOO
MANY TO MENTION - WHO SPOKE OUT AGAINST TEST OATHS AND ALL THE
PHILOSOPHY OF INTOLERANCE BEHIND THEM.  ONE OF THESE, IT SO HAPPENS,
WAS GEORGE CALVERT (THE FIRST LORD BALTIMORE), WHO TOOK A MOST
IMPORTANT PART IN THE ORIGINAL ESTABLISHMENT OF THE COLONY OF
MARYLAND.  HE WAS A CATHOLIC AND HAD, FOR THIS REASON, FELT COMPELLED
BY HIS CONSCIENCE TO REFUSE TO TAKE THE OATH OF SUPREMACY IN ENGLAND AT
THE COST OF RESIGNING FROM HIGH GOVERNMENTAL OFFICE.  HE AGAIN REFUSED
TO TAKE THAT OATH WHEN IT WAS DEMANDED BY THE COUNCIL OF THE COLONY OF
VIRGINIA, AND AS A RESULT HE WAS DENIED SETTLEMENT IN THAT COLONY. 
(FN4)  A RECENT HISTORIAN OF THE EARLY PERIOD OF MARYLAND'S LIFE HAS
SAID THAT IT WAS CALVERT'S HOPE AND PURPOSE TO ESTABLISH IN MARYLAND A
COLONIAL GOVERNMENT FREE FROM THE RELIGIOUS PERSECUTIONS HE HAD KNOWN -
ONE "SECURELY BEYOND THE REACH OF OATHS  ...  ."  (FN5) 

WHEN OUR CONSTITUTION WAS ADOPTED, THE DESIRE TO PUT THE PEOPLE
"SECURELY BEYOND THE REACH" OF RELIGIOUS TEST OATHS BROUGHT ABOUT THE
INCLUSION IN ARTICLE VI OF THAT DOCUMENT OF A PROVISION THAT "NO
RELIGIOUS TEST SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY OFFICE
OR PUBLIC TRUST UNDER THE UNITED STATES."  ARTICLE VI SUPPORTS THE
ACCURACY OF OUR OBSERVATION IN GIROUARD V. UNITED STATES, 328 U.S. 61,
69, THAT "THE TEST OATH IS ABHORRENT TO OUR TRADITION."  NOT SATISFIED,
HOWEVER, WITH ARTICLE VI AND OTHER GUARANTEES IN THE ORIGINAL
CONSTITUTION, THE FIRST CONGRESS PROPOSED AND THE STATES VERY SHORTLY
THEREAFTER ADOPTED OUR BILL OF RIGHTS, INCLUDING THE FIRST AMENDMENT. 
(FN6) THAT AMENDMENT BROKE NEW CONSTITUTIONAL GROUND IN THE PROTECTION
IT SOUGHT TO AFFORD TO FREEDOM OF RELIGION, SPEECH, PRESS, PETITION AND
ASSEMBLY.  SINCE PRIOR CASES IN THIS COURT HAVE THOROUGHLY EXPLORED AND
DOCUMENTED THE HISTORY BEHIND THE FIRST AMENDMENT, THE REASONS FOR IT,
AND THE SCOPE OF THE RELIGIOUS FREEDOM IT PROTECTS, WE NEED NOT COVER
THAT GROUND AGAIN.  (FN7)  WHAT WAS SAID IN OUR PRIOR CASES WE THINK
CONTROLS OUR DECISION HERE. 

IN CANTWELL V. CONNECTICUT, 310 U.S. 296, 303-304, WE SAID: 

"THE FIRST AMENDMENT DECLARES THAT CONGRESS SHALL MAKE NO LAW
RESPECTING AN ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE
EXERCISE THEREOF.  THE FOURTEENTH AMENDMENT HAS RENDERED THE
LEGISLATURES OF THE STATES AS INCOMPETENT AS CONGRESS TO ENACT SUCH
LAWS  ...  .  THUS THE AMENDMENT EMBRACES TWO CONCEPTS, - FREEDOM TO
BELIEVE AND FREEDOM TO ACT.  THE FIRST IS ABSOLUTE BUT, IN THE NATURE
OF THINGS, THE SECOND CANNOT BE." 

LATER WE DECIDED EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, AND SAID
THIS AT PAGES 15 AND 16: 

"THE 'ESTABLISHMENT OF RELIGION' CLAUSE OF THE FIRST AMENDMENT MEANS
AT LEAST THIS:  NEITHER A STATE NOR THE FEDERAL GOVERNMENT CAN SET UP A
CHURCH.  NEITHER CAN PASS LAWS WHICH AID ONE RELIGION, AID ALL
RELIGIONS, OR PREFER ONE RELIGION OVER ANOTHER.  NEITHER CAN FORCE NOR
INFLUENCE A PERSON TO GO TO OR TO REMAIN AWAY FROM CHURCH AGAINST HIS
WILL OR FORCE HIM TO PROFESS A BELIEF OR DISBELIEF IN ANY RELIGION.  NO
PERSON CAN BE PUNISHED FOR ENTERTAINING OR PROFESSING RELIGIOUS BELIEFS
OR DISBELIEFS, FOR CHURCH ATTENDANCE OR NON-ATTENDANCE.  NO TAX IN ANY
AMOUNT, LARGE OR SMALL, CAN BE LEVIED TO SUPPORT ANY RELIGIOUS
ACTIVITIES OR INSTITUTIONS, WHATEVER THEY MAY BE CALLED, OR WHATEVER
FORM THEY MAY ADOPT TO TEACH OR PRACTICE RELIGION.  NEITHER A STATE NOR
THE FEDERAL GOVERNMENT CAN, OPENLY OR SECRETLY, PARTICIPATE IN THE
AFFAIRS OF ANY RELIGIOUS ORGANIZATIONS OR GROUPS AND VICE VERSA.  IN
THE WORDS OF JEFFERSON, THE CLAUSE AGAINST ESTABLISHMENT OF RELIGION BY
LAW WAS INTENDED TO ERECT 'A WALL OF SEPARATION BETWEEN CHURCH AND
STATE.'" 

WHILE THERE WERE STRONG DISSENTS IN THE EVERSON CASE, THEY DID NOT
CHALLENGE THE COURT'S INTERPRETATION OF THE FIRST AMENDMENT'S COVERAGE
AS BEING TOO BROAD, BUT THOUGHT THE COURT WAS APPLYING THAT
INTERPRETATION TOO NARROWLY TO THE FACTS OF THAT CASE.  NOT LONG
AFTERWARD, IN ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION, 333 U.S.
203, WE WERE URGED TO REPUDIATE AS DICTA THE ABOVE-QUOTED EVERSON
INTERPRETATION OF THE SCOPE OF THE FIRST AMENDMENT'S COVERAGE.  WE
DECLINED TO DO THIS, BUT INSTEAD STRONGLY REAFFIRMED WHAT HAD BEEN SAID
IN EVERSON, CALLING ATTENTION TO THE FACT THAT BOTH THE MAJORITY AND
THE MINORITY IN EVERSON HAD AGREED ON THE PRINCIPLES DECLARED IN THIS
PART OF THE EVERSON OPINION.  AND A CONCURRING OPINION IN MCCOLLUM,
WRITTEN BY MR. JUSTICE FRANKFURTHER AND JOINED BY THE OTHER EVERSON
DISSENTERS, SAID THIS: 

"WE ARE ALL AGREED THAT THE FIRST AND FOURTEENTH AMENDMENTS HAVE A
SECULAR REACH FAR MORE PENETRATING IN THE CONDUCT OF GOVERNMENT THAN
MERELY TO FORBID AN 'ESTABLISHED CHURCH.'  ...  WE RENEW OUR CONVICTION
THAT 'WE HAVE STAKED THE VERY EXISTENCE OF OUR COUNTRY ON THE FAITH
THAT COMPLETE SEPARATION BETWEEN THE STATE AND RELIGION IS BEST FOR THE
STATE AND BEST FOR RELIGION.'"  (FN8) 

THE MARYLAND COURT OF APPEALS THOUGHT, AND IT IS ARGUED HERE, THAT
THIS COURT'S LATER HOLDING AND OPINION IN ZORACH V. CLAUSON, 343 U.S.
306, HAD IN PART REPUDIATED THE STATEMENT IN THE EVERSON OPINION QUOTED
ABOVE AND PREVIOUSLY REAFFIRMED IN MCCOLLUM.  BUT THE COURT'S OPINION
IN ZORACH SPECIFICALLY STATED:  "WE FOLLOW THE MCCOLLUM CASE."  343
U.S., AT 315.  NOTHING DECIDED OR WRITTEN IN ZORACH LENDS SUPPORT TO
THE IDEA THAT THE COURT THERE INTENDED TO OPEN UP THE WAY FOR
GOVERNMENT, STATE OR FEDERAL, TO RESTORE THE HISTORICALLY AND
CONSTITUTIONALLY DISCREDITED POLICY OF PROBING RELIGIOUS BELIEFS BY
TEST OATHS OR LIMITING PUBLIC OFFICES TO PERSONS WHO HAVE, OR PERHAPS
MORE PROPERLY PROFESS TO HAVE, A BELIEF IN SOME PARTICULAR KIND OF
RELIGIOUS CONCEPT.  (FN9) 

WE REPEAT AND AGAIN REAFFIRM THAT NEITHER A STATE NOR THE FEDERAL
GOVERNMENT CAN CONSTITUTIONALLY FORCE A PERSON "TO PROFESS A BELIEF OR
DISBELIEF IN ANY RELIGION."  NEITHER CAN CONSTITUTIONALLY PASS LAWS OR
IMPOSE REQUIREMENTS WHICH AID ALL RELIGIONS AS AGAINST NON-BELIEVERS,
(FN10) AND NEITHER CAN AID THOSE RELIGIONS BASED ON A BELIEF IN THE
EXISTENCE OF GOD AS AGAINST THOSE RELIGIONS FOUNDED ON DIFFERENT
BELIEFS.  (FN11) 

IN UPHOLDING THE STATE'S RELIGIOUS TEST FOR PUBLIC OFFICE THE HIGHEST
COURT OF MARYLAND SAID: 

"THE PETITIONER IS NOT COMPELLED TO BELIEVE OR DISBELIEVE, UNDER
THREAT OF PUNISHMENT OR OTHER COMPULSION.  TRUE, UNLESS HE MAKES THE
DECLARATION OF BELIEF HE CANNOT HOLD PUBLIC OFFICE IN MARYLAND, BUT HE
IS NOT COMPELLED TO HOLD OFFICE." 

THE FACT, HOWEVER, THAT A PERSON IS NOT COMPELLED TO HOLD PUBLIC
OFFICE CANNOT POSSIBLY BE AN EXCUSE FOR BARRING HIM FROM OFFICE BY
STATE-IMPOSED CRITERIA FORBIDDEN BY THE CONSTITUTION.  THIS WAS SETTLED
BY OUR HOLDING IN WIEMAN V. UPDEGRAFF, 344 U.S. 183.  WE THERE POINTED
OUT THAT WHETHER OR NOT "AN ABSTRACT RIGHT TO PUBLIC EMPLOYMENT
EXISTS," CONGRESS COULD NOT PASS A LAW PROVIDING " '...  THAT NO
FEDERAL EMPLOYEE SHALL ATTEND MASS OR TAKE ANY ACTIVE PART IN
MISSIONARY WORK.'"  (FN12) 

THIS MARYLAND RELIGIOUS TEST FOR PUBLIC OFFICE UNCONSTITUTIONALLY
INVADES THE APPELLANT'S FREEDOM OF BELIEF AND RELIGION AND THEREFORE
CANNOT BE ENFORCED AGAINST HIM. 

THE JUDGMENT OF THE COURT OF APPEALS OF MARYLAND IS ACCORDINGLY
REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  APPELLANT ALSO CLAIMED THAT THE STATE'S TEST OATH REQUIREMENT
VIOLATES THE PROVISION OF ART. VI OF THE FEDERAL CONSTITUTION THAT "NO
RELIGIOUS TEST SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY OFFICE
OR PUBLIC TRUST UNDER THE UNITED STATES."  BECAUSE WE ARE REVERSING THE
JUDGMENT ON OTHER GROUNDS, WE FIND IT UNNECESSARY TO CONSIDER
APPELLANT'S CONTENTION THAT THIS PROVISION APPLIES TO STATE AS WELL AS
FEDERAL OFFICES. 

FN2  223 MD. 49, 162 A.2D 438.  APPELLANT'S ALTERNATIVE CONTENTION
THAT THIS TEST VIOLATES THE MARYLAND CONSTITUTION ALSO WAS REJECTED BY
THE STATE COURTS. 

FN3  SEE, E.G., I STOKES, CHURCH AND STATE IN THE UNITED STATES, 358
446.  SEE ALSO CASES CITED, NOTE 7, INFRA. 

FN4  THE LETTER FROM THE VIRGINIA COUNCIL TO THE KING'S PRIVY COUNCIL
IS QUOTED IN HANLEY, THEIR RIGHTS AND LIBERTIES (NEWMAN PRESS 1959),
65, AS FOLLOWS: 

"ACCORDING TO THE INSTRUCTIONS FROM YOUR LORDSHIP AND THE USUAL
COURSE HELD IN THIS PLACE, WE TENDERED THE OATHS OF SUPREMACY AND
ALLEGIANCE TO HIS LORDSHIP; BALTIMORE AND SOME OF HIS FOLLOWERS, WHO
MAKING PROFESSION OF THE ROMISH RELIGION, UTTERLY REFUSED TO TAKE THE
SAME  ...  HIS LORDSHIP THEN OFFERED TO TAKE THIS OATH, A COPY WHEREOF
IS INCLUDED  ...  BUT WE COULD NOT IMAGINE THAT SO MUCH LATITUDE WAS
LEFT FOR US TO DECLINE FROM THE PRESCRIBED FORM, SO STRICTLY EXACTED
AND SO WELL JUSTIFIED AND DEFENDED BY THE PEN OF OUR LATE SOVEREIGN,
LORD KING JAMES OF HAPPY MEMORY  ...  . AMONG THE MANY BLESSINGS AND
FAVORS FOR WHICH WE ARE BOUND TO BLESS GOD  ... THERE IS NONE WHEREBY
IT HATH BEEN MADE MORE HAPPY THAN IN THE FREEDOM OF OUR RELIGION  ...
AND THAT NO PAPISTS HAVE BEEN SUFFERED TO SETTLE THEIR ABODE AMONGST US
...  ." 

OF COURSE THIS WAS LONG BEFORE MADISON'S GREAT MEMORIAL AND
REMONSTRANCE AND THE ENACTMENT OF THE FAMOUS VIRGINIA BILL FOR
RELIGIOUS LIBERTY, DISCUSSED IN OUR OPINION IN EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1, 11-13. 

FN5  HANLEY, OP. CIT., SUPRA, P. 65. 

FN6  "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." 

FN7  SEE, E.G., THE OPINIONS OF THE COURT AND ALSO THE CONCURRING AND
DISSENTING OPINIONS IN REYNOLDS V. UNITED STATES, 98 U.S. 145; DAVIS V.
BEASON, 133 U.S. 333; CANTWELL V. CONNECTICUT, 310 U.S. 296; WEST
VIRGINIA STATE BD. OF EDUCATION V. BARNETTE, 319 U.S. 624; FOWLER V.
RHODE ISLAND, 345 U.S. 67; EVERSON V. BOARD OF EDUCATION, 330 U.S. 1;
ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203; MCGOWAN
V. MARYLAND, 366 U.S. 420. 

FN8  333 U.S., AT 213, 232.  LATER, IN ZORACH V. CLAUSON, 343 U.S.
306, 322, MR. JUSTICE FRANKFURTER STATED IN DISSENT THAT "THE RESULT IN
THE MCCOLLUM CASE  ...  WAS BASED ON PRINCIPLES THAT RECEIVED UNANIMOUS
ACCEPTANCE BY THIS COURT, BARRING ONLY A SINGLE VOTE." 

FN9  IN ONE OF HIS FAMOUS LETTERS OF "A LANDHOLDER," PUBLISHED IN
DECEMBER 1787, OLIVER ELLSWORTH, A MEMBER OF THE FEDERAL CONSTITUTIONAL
CONVENTION AND LATER CHIEF JUSTICE OF THIS COURT, INCLUDED AMONG HIS
STRONG ARGUMENTS AGAINST RELIGIOUS TEST OATHS THE FOLLOWING STATEMENT: 
"IN SHORT, TEST-LAWS ARE UTTERLY INEFFECTUAL:  THEY ARE NO SECURITY
AT ALL; BECAUSE MEN OF LOOSE PRINCIPLES WILL, BY AN EXTERNAL
COMPLIANCE, EVADE THEM.  IF THEY EXCLUDE ANY PERSONS, IT WILL BE HONEST
MEN, MEN OF PRINCIPLE, WHO WILL RATHER SUFFER AN INJURY, THAN ACT
CONTRARY TO THE DICTATES OF THEIR CONSCIENCES  ...  ."  QUOTED IN FORD,
ESSAYS ON THE CONSTITUTION OF THE UNITED STATES, 170.  SEE ALSO 4
ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
FEDERAL CONSTITUTION, 193.    FN10  IN DISCUSSING ARTICLE VI IN THE
DEBATE OF THE NORTH CAROLINA CONVENTION ON THE ADOPTION OF THE FEDERAL
CONSTITUTION, JAMES IREDELL, LATER A JUSTICE OF THIS COURT, SAID: 

"  ...  IT IS OBJECTED THAT THE PEOPLE OF AMERICA MAY, PERHAPS,
CHOOSE REPRESENTATIVES WHO HAVE NO RELIGION AT ALL, AND THAT PAGANS AND
MAHOMETANS MAY BE ADMITTED INTO OFFICES.  BUT HOW IS IT POSSIBLE TO
EXCLUDE ANY SET OF MEN, WITHOUT TAKING AWAY THAT PRINCIPLE OF RELIGIOUS
FREEDOM WHICH WE OURSELVES SO WARMLY CONTEND FOR?" 

AND ANOTHER DELEGATE POINTED OUT THAT ARTICLE VI "LEAVES RELIGION ON
THE SOLID FOUNDATION OF ITS OWN INHERENT VALIDITY, WITHOUT ANY
CONNECTION WITH TEMPORAL AUTHORITY; AND NO KIND OF OPPRESSION CAN TAKE
PLACE."  4 ELLIOT, OP. CIT., SUPRA, AT 194, 200. 

FN11  AMONG RELIGIONS IN THIS COUNTRY WHICH DO NOT TEACH WHAT WOULD
GENERALLY BE CONSIDERED A BELIEF IN THE EXISTENCE OF GOD ARE BUDDHISM,
TAOISM, ETHICAL CULTURE, SECULAR HUMANISM AND OTHERS.  SEE WASHINGTON
ETHICAL SOCIETY V. DISTRICT OF COLUMBIA, 101 U.S. APP. D.C. 371, 249
F.2D 127; FELLOWSHIP OF HUMANITY V. COUNTY OF ALAMEDA, 153 CAL. APP. 2D
673, 315 P.2D 394; II ENCYCLOPAEDIA OF THE SOCIAL SCIENCES 293; 4
ENCYCLOPAEDIA BRITANNICA (1957 ED.)  325-327; 21 ID., AT 797; ARCHER,
FAITHS MEN LIVE BY (2D ED. REVISED BY PURINTON), 120-138, 254-313; 1961
WORLD ALMANAC 695, 712; YEAR BOOK OF AMERICAN CHURCHES FOR 1961, AT 29,
47. 

FN12  344 U.S., AT 191-192, QUOTING FROM UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75, 100. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE HARLAN CONCUR IN THE RESULT. 

..END :















POE V. ULLMAN 367 U.S. 497 


NO. 60.  ARGUED MARCH 1-2, 1961 - DECIDED JUNE 19, 1961* - 147 CONN. 48,
156 A.2D 508, APPEAL DISMISSED. 

*TOGETHER WITH NO. 61, BUXTON V. ULLMAN, STATE'S ATTORNEY, ALSO ON
APPEAL FROM THE SAME COURT. 


THESE ARE APPEALS FROM A DECISION OF THE SUPREME COURT OF ERRORS OF
CONNECTICUT AFFIRMING DISMISSALS OF COMPLAINTS IN THREE CASES IN WHICH
THE PLAINTIFFS SUED FOR DECLARATORY JUDGMENTS THAT CERTAIN CONNECTICUT
STATUTES WHICH PROHIBIT THE USE OF CONTRACEPTIVE DEVICES AND THE GIVING
OF MEDICAL ADVICE ON THEIR USE VIOLATE THE FOURTEENTH AMENDMENT BY
DEPRIVING THE PLAINTIFFS OF LIFE AND PROPERTY WITHOUT DUE PROCESS OF
LAW.  THE COMPLAINTS ALLEGED THAT TWO PLAINTIFFS WHO WERE MARRIED WOMEN
NEEDED MEDICAL ADVICE ON THE USE OF SUCH DEVICES FOR THE PROTECTION OF
THEIR HEALTH BUT THAT A PHYSICIAN, WHO WAS THE PLAINTIFF IN THE THIRD
CASE, WAS DETERRED FROM GIVING SUCH ADVICE BECAUSE THE STATE'S ATTORNEY
INTENDED TO PROSECUTE OFFENSES AGAINST THE STATE'S LAWS AND HE CLAIMED
THAT THE GIVING OF SUCH ADVICE AND THE USE OF SUCH DEVICES WERE
FORBIDDEN BY STATE STATUTES.  HOWEVER, IT APPEARED THAT THE STATUTES IN
QUESTION HAD BEEN ENACTED IN 1879 AND THAT NO ONE EVER HAD BEEN
PROSECUTED THEREUNDER EXCEPT TWO DOCTORS AND A NURSE, WHO WERE CHARGED
WITH OPERATING A BIRTH-CONTROL CLINIC, AND THAT THE INFORMATION AGAINST
THEM HAD BEEN DISMISSED AFTER THE STATE SUPREME COURT HAD SUSTAINED THE
LEGISLATION IN 1940 ON AN APPEAL FROM A DEMURRER TO THE INFORMATION. 
HELD: THE APPEALS ARE DISMISSED, BECAUSE THE RECORDS IN THESE CASES DO
NOT PRESENT CONTROVERSIES JUSTIFYING THE ADJUDICATION OF A
CONSTITUTIONAL ISSUE.  PP. 498-509. 

POE ET AL. V. ULLMAN, STATE'S ATTORNEY. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE CLARK AND MR. JUSTICE
WHITTAKER JOIN. 

THESE APPEALS CHALLENGE THE CONSTITUTIONALITY, UNDER THE FOURTEENTH
AMENDMENT, OF CONNECTICUT STATUTES WHICH, AS AUTHORITATIVELY CONSTRUED
BY THE CONNECTICUT SUPREME COURT OF ERRORS, PROHIBIT THE USE OF
CONTRACEPTIVE DEVICES AND THE GIVING OF MEDICAL ADVICE IN THE USE OF
SUCH DEVICES.  IN PROCEEDINGS SEEKING DECLARATIONS OF LAW, NOT ON
REVIEW OF CONVICTIONS FOR VIOLATION OF THE STATUTES, THAT COURT HAS
RULED THAT THESE STATUTES WOULD BE APPLICABLE IN THE CASE OF MARRIED
COUPLES AND EVEN UNDER CLAIM THAT CONCEPTION WOULD CONSTITUTE A SERIOUS
THREAT TO THE HEALTH OR LIFE OF THE FEMALE SPOUSE. 

NO. 60 COMBINES TWO ACTIONS BROUGHT IN A CONNECTICUT SUPERIOR COURT
FOR DECLARATORY RELIEF.  THE COMPLAINT IN THE FIRST ALLEGES THAT THE
PLAINTIFFS, PAUL AND PAULINE POE, (FN1) ARE A HUSBAND AND WIFE, THIRTY
AND TWENTY-SIX YEARS OLD RESPECTIVELY, WHO LIVE TOGETHER AND HAVE NO
CHILDREN.  MRS. POE HAS HAD THREE CONSECUTIVE PREGNANCIES TERMINATING
IN INFANTS WITH MULTIPLE CONGENITAL ABNORMALITIES FROM WHICH EACH DIED
SHORTLY AFTER BIRTH.  PLAINTIFFS HAVE CONSULTED DR. BUXTON, AN
OBSTETRICIAN AND GYNECOLOGIST OF EMINENCE, AND IT IS DR. BUXTON'S
OPINION THAT THE CAUSE OF THE INFANTS' ABNORMALITIES IS GENETIC,
ALTHOUGH THE UNDERLYING "MECHANISM" IS UNCLEAR.  IN VIEW OF THE GREAT
EMOTIONAL STRESS ALREADY SUFFERED BY PLAINTIFFS, THE PROBABLE
CONSEQUENCE OF ANOTHER PREGNANCY IS PSYCHOLOGICAL STRAIN EXTREMELY
DISTURBING TO THE PHYSICAL AND MENTAL HEALTH OF BOTH HUSBAND AND WIFE. 
PLAINTIFFS KNOW THAT IT IS DR. BUXTON'S OPINION THAT THE BEST AND
SAFEST MEDICAL TREATMENT WHICH COULD BE PRESCRIBED FOR THEIR SITUATION
IS ADVICE IN METHODS OF PREVENTING CONCEPTION.  DR. BUXTON KNOWS OF
DRUGS, MEDICINAL ARTICLES AND INSTRUMENTS WHICH CAN BE SAFELY USED TO
EFFECT CONTRACEPTION.  MEDICALLY, THE USE OF THESE DEVICES IS INDICATED
AS THE BEST AND SAFEST PREVENTIVE MEASURE NECESSARY FOR THE PROTECTION
OF PLAINTIFFS' HEALTH.  PLAINTIFFS, HOWEVER, HAVE BEEN UNABLE TO OBTAIN
THIS INFORMATION FOR THE SOLE REASON THAT ITS DELIVERY AND USE MAY OR
WILL BE CLAIMED BY THE DEFENDANT STATE'S ATTORNEY (APPELLEE IN THIS
COURT) TO CONSTITUTE OFFENSES AGAINST CONNECTICUT LAW.  THE STATE'S
ATTORNEY INTENDS TO PROSECUTE OFFENSES AGAINST THE STATE'S LAWS, AND
CLAIMS THAT THE GIVING OF CONTRACEPTIVE ADVICE AND THE USE OF
CONTRACEPTIVE DEVICES WOULD BE OFFENSES FORBIDDEN BY CONN. GEN. STAT.
REV., 1958, SECS. 53-32 AND 54-196.  (FN2)  ALLEGING IRREPARABLE INJURY
AND A SUBSTANTIAL UNCERTAINTY OF LEGAL RELATIONS (A LOCAL PROCEDURAL
REQUISITE FOR A DECLARATION), PLAINTIFFS ASK A DECLARATORY JUDGMENT
THAT SECS. 53-32 AND 54-196 ARE UNCONSTITUTIONAL, IN THAT THEY DEPRIVE
THE PLAINTIFFS OF LIFE AND LIBERTY WITHOUT DUE PROCESS OF LAW. 

THE SECOND ACTION IN NO. 60 IS BROUGHT BY JANE DOE, A TWENTY-FIVE
YEAR-OLD HOUSEWIFE.  MRS. DOE, IT IS ALLEGED, LIVES WITH HER HUSBAND,
THEY HAVE NO CHILDREN; MRS. DOE RECENTLY UNDERWENT A PREGNANCY WHICH
INDUCED IN HER A CRITICAL PHYSICAL ILLNESS - TWO WEEKS' UNCONSCIOUSNESS
AND A TOTAL OF NINE WEEKS' ACUTE SICKNESS WHICH LEFT HER WITH PARTIAL
PARALYSIS, MARKED IMPAIRMENT OF SPEECH, AND EMOTIONAL INSTABILITY. 
ANOTHER PREGNANCY WOULD BE EXCEEDINGLY PERILOUS TO HER LIFE.  SHE, TOO,
HAS CONSULTED DR. BUXTON, WHO BELIEVES THAT THE BEST AND SAFEST
TREATMENT FOR HER IS CONTRACEPTIVE ADVICE.  THE REMAINING ALLEGATIONS
OF MRS. DOE'S COMPLAINT, AND THE RELIEF SOUGHT, ARE SIMILAR TO THOSE IN
THE CASE OF MR. AND MRS. POE. 

IN NO. 61, ALSO A DECLARATORY JUDGMENT ACTION, DR. BUXTON IS THE
PLAINTIFF.  SETTING FORTH FACTS IDENTICAL TO THOSE ALLEGED BY JANE DOE,
HE ASKS THAT THE CONNECTICUT STATUTES PROHIBITING HIS GIVING OF
CONTRACEPTIVE ADVICE TO MRS. DOE BE ADJUDGED UNCONSTITUTIONAL, AS
DEPRIVING HIM OF LIBERTY AND PROPERTY WITHOUT DUE PROCESS. 

IN ALL THREE ACTIONS, DEMURRERS WERE ADVANCED, INTER ALIA, ON THE
GROUND THAT THE STATUTES ATTACKED HAD BEEN PREVIOUSLY CONSTRUED AND
SUSTAINED BY THE SUPREME COURT OF ERRORS OF CONNECTICUT, AND THUS THERE
DID NOT EXIST THE UNCERTAINTY OF LEGAL RELATIONS REQUISITE TO MAINTAIN
SUITS FOR DECLARATORY JUDGMENT.  WHILE THE CONNECTICUT SUPREME COURT OF
ERRORS IN SUSTAINING THE DEMURRERS REFERRED TO THIS LOCAL PROCEDURAL
GROUND, RELYING ON STATE V. NELSON, 126 CONN. 412, 11 A.2D 856, AND
TILESTON V. ULLMAN, 129 CONN. 84, 26 A.2D 582, APP. DISM'D, 318 U.S.
44, WE CANNOT SAY THAT ITS DECISION RESTED ON IT.  147 CONN. 48, 156
A.2D 508.  WE NOTED PROBABLE JURISDICTION.  362 U.S. 987. 

APPELLANTS' COMPLAINTS IN THESE DECALRATORY JUDGMENT PROCEEDINGS DO
NOT CLEARLY, AND CERTAINLY DO NOT IN TERMS, ALLEGE THAT APPELLEE ULLMAN
THREATENS TO PROSECUTE THEM FOR USE OF, OR FOR GIVING ADVICE
CONCERNING, CONTRACEPTIVE DEVICES.  THE ALLEGATIONS ARE MERELY THAT, IN
THE COURSE OF HIS PUBLIC DUTY, HE INTENDS TO PROSECUTE ANY OFFENSES
AGAINST CONNECTICUT LAW, AND THE HE CLAIMS THAT USE OF AND ADVICE
CONCERNING CONTRACEPTIVES WOULD CONSTITUTE OFFENSES.  THE LACK OF
IMMEDIACY OF THE THREAT DESCRIBED BY THESE ALLEGATIONS MIGHT ALONE
RAISE SERIOUS QUESTIONS OF NON-JUSTICIABILITY OF APPELLANTS' CLAIMS. 
SEE UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 88.  BUT EVEN WERE
WE TO READ THE ALLEGATIONS TO CONVEY A CLEAR THREAT OF IMMINENT
PROSECUTIONS, WE ARE NOT BOUND TO ACCEPT AS TRUE ALL THAT IS ALLEGED ON
THE FACE OF THE COMPLAINT AND ADMITTED, TECHNICALLY, BY DEMURRER, ANY
MORE THAN THE COURT IS BOUND BY STIPULATION OF THE PARTIES.  SWIFT &
CO. V. HOCKING VALLEY R. CO., 243 U.S. 281, 289.  FORMAL AGREEMENT
BETWEEN PARTIES THAT COLLIDES WITH PLAUSIBILITY IS TOO FRAGILE A
FOUNDATION FOR INDULGING IN CONSTITUTIONAL ADJUDICATION. 

THE CONNECTICUT LAW PROHIBITING THE USE OF CONTRACEPTIVES HAS BEEN ON
THE STATE'S BOOKS SINCE 1879.  CONN. ACTS 1879, C. 78.  DURING THE MORE
THAN THREE-QUARTERS OF A CENTURY SINCE ITS ENACTMENT, A PROSECUTION FOR
ITS VIOLATION SEEMS NEVER TO HAVE BEEN INITIATED, SAVE IN STATE V.
NELSON, 126 CONN. 412, 11 A.2D 856.  THE CIRCUMSTANCES OF THAT CASE,
DECIDED IN 1940, ONLY PROVE THE ABSTRACT CHARACTER OF WHAT IS BEFORE
US.  THERE, A TEST CASE WAS BROUGHT TO DETERMINE THE CONSTITUTIONALITY
OF THE ACT AS APPLIED AGAINST TWO DOCTORS AND A NURSE WHO HAD ALLEGEDLY
DISSEMINATED CONTRACEPTIVE INFORMATION.  AFTER THE SUPREME COURT OF
ERRORS SUSTAINED THE LEGISLATION ON APPEAL FROM A DEMURRER TO THE
INFORMATION, THE STATE MOVED TO DISMISS THE INFORMATION.  NEITHER
COUNSEL NOR OUR OWN RESEARCHES HAVE DISCOVERED ANY OTHER ATTEMPT TO
ENFORCE THE PROHIBITION OF DISTRIBUTION OR USE OF CONTRACEPTIVE DEVICES
BY CRIMINAL PROCESS.  (FN3)  THE UNREALITY OF THESE LAW SUITS IS
ILLUMINED BY ANOTHER CIRCUMSTANCE.  WE WERE ADVISED BY COUNSEL FOR
APPELLANTS THAT CONTRACEPTIVES ARE COMMONLY AND NOTORIOUSLY SOLD IN
CONNECTICUT DRUG STORES.  (FN4)  YET NO PROSECUTIONS ARE RECORDED; AND
CERTAINLY SUCH UBIQUITOUS, OPEN, PUBLIC SALES WOULD MORE QUICKLY INVITE
THE ATTENTION OF ENFORCEMENT OFFICIALS THAN THE CONDUCT IN WHICH THE
PRESENT APPELLANTS WISH TO ENGAGE - THE GIVING OF PRIVATE MEDICAL
ADVICE BY A DOCTOR TO HIS INDIVIDUAL PATIENTS, AND THEIR PRIVATE USE OF
THE DEVICES PRESCRIBED.  THE UNDEVIATING POLICY OF NULLIFICATION BY
CONNECTICUT OF ITS ANTI-CONTRACEPTIVE LAWS THROUGHOUT ALL THE LONG
YEARS THAT THEY HAVE BEEN ON THE STATUTE BOOKS BESPEAKS MORE THAN
PROSECUTORIAL PARALYSIS.  WHAT WAS SAID IN ANOTHER CONTEXT IS RELEVANT
HERE.  "DEEPLY EMBEDDED TRADITIONAL WAYS OF CARRYING OUT STATE POLICY
..."  - OR NOT CARRYING IT OUT - "ARE OFTEN TOUGHER AND TRUER LAW THAN
THE DEAD WORDS OF THE WRITTEN TEXT."  NASHVILLE, C. & ST. L.R. CO. V.
BROWNING, 310 U.S. 362, 369. 

THE RESTRICTION OF OUR JURISDICTION TO CASES AND CONTROVERSIES WITHIN
THE MEANING OF ARTICLE III OF THE CONSTITUTION, SEE MUSKRAT V. UNITED
STATES, 219 U.S. 346, IS NOT THE SOLE LIMITATION ON THE EXERCISE OF OUR
APPELLATE POWERS, ESPECIALLY IN CASES RAISING CONSTITUTIONAL
QUESTIONS.  THE POLICY REFLECTED IN NUMEROUS CASES AND OVER A LONG
PERIOD WAS THUS SUMMARIZED IN THE OFT-QUOTED STATEMENT OF MR. JUSTICE
BRANDEIS:  "THE COURT HAS DEVELOPED, FOR ITS OWN GOVERNANCE IN THE
CASES CONFESSEDLY WITHIN ITS JURISDICTION, A SERIES OF RULES UNDER
WHICH IT HAS AVOIDED PASSING UPON A LARGE PART OF ALL THE
CONSTITUTIONAL QUESTIONS PRESSED UPON IT FOR DECISION."  ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 341, 346 (CONCURRING
OPINION).  IN PART THE RULES SUMMARIZED IN THE ASHWANDER OPINION HAVE
DERIVED FROM THE HISTORICALLY DEFINED, LIMITED NATURE AND FUNCTION OF
COURTS AND FROM THE RECOGNITION THAT, WITHIN THE FRAMEWORK OF OUR
ADVERSARY SYSTEM, THE ADJUDICATORY PROCESS IS MOST SECURELY FOUNDED
WHEN IT IS EXERCISED UNDER THE IMPACT OF A LIVELY CONFLICT BETWEEN
ANTAGONISTIC DEMANDS, ACTIVELY PRESSED, WHICH MAKE RESOLUTION OF THE
CONTROVERTED ISSUE A PRACTICAL NECESSITY.  SEE LITTLE V. BOWERS, 134
U.S. 547, 558; CALIFORNIA V. SAN PABLO & TULARE R. CO., 149 U.S. 308,
314; UNITED STATES V. FRUEHAUF, 365 U.S. 146, 157.  IN PART THEY DERIVE
FROM THE FUNDAMENTAL FEDERAL AND TRIPARTITE CHARACTER OF OUR NATIONAL
GOVERNMENT AND FROM THE ROLE - RESTRICED BY ITS VERY RESPONSIBILITY -
OF THE FEDERAL COURTS, AND PARTICULARLY THIS COURT, WITHIN THAT
STRUCTURE.  SEE THE NOTE TO HAYBURN'S CASE, 2 DALL.  409; MASSACHUSETTS
V. MELLON, 262 U.S. 447; 488-489; WATSON V. BUCK, 313 U.S. 387, 400
403; ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 471. 

THESE CONSIDERATIONS PRESS WITH SPECIAL URGENCY IN CASES CHALLENGING
LEGISLATIVE ACTION OR STATE JUDICIAL ACTION AS REPUGNANT TO THE
CONSTITUTION.  "THE BEST TEACHING OF THIS COURT'S EXPERIENCE ADMONISHES
US NOT TO ENTERTAIN CONSTITUTIONAL QUESTIONS IN ADVANCE OF THE
STRICTEST NECESSITY."  PARKER V. COUNTY OF LOS ANGELES, 338 U.S. 327,
333.  SEE ALSO LIVERPOOL, N.Y. & P.S.S. CO. V. COMMISSIONERS, 113 U.S.
33, 39.  THE VARIOUS DOCTRINES OF "STANDING," (FN5) "RIPENESS," (FN6)
AND "MOOTNESS," (FN7) WHICH THIS COURT HAS EVOLVED WITH PARTICULAR,
THOUGH NOT EXCLUSIVE, REFERENCE TO SUCH CASES ARE BUT SEVERAL
MANIFESTATIONS - EACH HAVING ITS OWN "VARIED APPLICATION"  (FN8) - OF
THE PRIMARY CONCEPTION THAT FEDERAL JUDICIAL POWER IS TO BE EXERCISED
TO STRIKE DOWN LEGISLATION, WHETHER STATE OR FEDERAL, ONLY AT THE
INSTANCE OF ONE WHO IS HIMSELF IMMEDIATELY HARMED, OR IMMEDIATELY
THREATENED WITH HARM, BY THE CHALLENGED ACTION.  STEARNS V. WOOD, 236
U.S. 75; TEXAS V. INTERSTATE COMMERCE COMM'N, 258 U.S. 158; UNITED
PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 89-90.  "THIS COURT CAN HAVE
NO RIGHT TO PRONOUNCE AN ABSTRACT OPINION UPON THE CONSTITUTIONALITY OF
A STATE LAW.  SUCH LAW MUST BE BROUGHT INTO ACTUAL, OR THREATENED
OPERATION UPON RIGHTS PROPERLY FALLING UNDER JUDICIAL COGNIZANCE, OR A
REMEDY IS NOT TO BE HAD HERE."  GEORGIA V. STANTON, 6 WALL.  50, 75,
APPROVINGLY QUOTING MR. JUSTICE THOMPSON, DISSENTING, IN CHEROKEE
NATION V. GEORGIA, 5 PET.  1, 75; ALSO QUOTED IN NEW JERSEY V. SARGENT,
269 U.S. 328, 331.  "THE PARTY WHO INVOKES THE POWER TO ANNUL
LEGISLATION ON GROUNDS OF ITS UNCONSTITUTIONALITY MUST BE ABLE TO SHOW
NOT ONLY THAT THE STATUTE IS INVALID BUT THAT HE HAS SUSTAINED OR IS
IMMEDIATELY IN DANGER OF SUSTAINING SOME DIRECT INJURY AS THE RESULT OF
ITS ENFORCEMENT  ...  ."  MASSACHUSETTS V. MELLON, 262 U.S. 447, 488. 
(FN9) 

THIS PRINCIPLE WAS GIVEN EARLY APPLICATION AND HAS BEEN RECURRINGLY
ENFORCED IN THE COURT'S REFUSAL TO ENTERTAIN CASES WHICH DISCLOSED A
WANT OF A TRULY ADVERSARY CONTEST, OF A COLLISION OF ACTIVELY ASSERTED
AND DIFFERING CLAIMS.  SEE, E.G., CLEVELAND V. CHAMBERLAIN, 1 BLACK
419; WOOD-PAPER CO. V. HEFT, 8 WALL.  333.  SUCH CASES MAY NOT BE
"COLLUSIVE" IN THE DEROGATORY SENSE OF LORD V. VEAZIE, 8 HOW.  251 - IN
THE SENSE OF MERELY COLORABLE DISPUTES GOT UP TO SECURE AN ADVANTAGEOUS
RULING FROM THE COURT.  SEE SOUTH SPRING HILL GOLD MINING CO. V. AMADOR
MEDEAN GOLD MINING CO., 145 U.S. 300, 301.  THE COURT HAS FOUND UNFIT
FOR ADJUDICATION ANY CAUSE THAT "IS NOT IN ANY REAL SENSE ADVERSARY,"
THAT "DOES NOT ASSUME THE 'HONEST AND ACTUAL ANTAGONISTIC ASSERTION OF
RIGHTS' TO BE ADJUDICATED - A SAFEGUARD ESSENTIAL TO THE INTEGRITY OF
THE JUDICIAL PROCESS, AND ONE WHICH WE HAVE HELD TO BE INDISPENSABLE TO
ADJUDICATION OF CONSTITUTIONAL QUESTIONS BY THIS COURT."  UNITED STATES
V. JOHNSON, 319 U.S. 302, 305.  THE REQUIREMENT FOR ADVERSITY WAS
CLASSICALLY EXPOUNDED IN CHICAGO & GRAND TRUNK R. CO. V. WELLMAN, 143
U.S. 339, 344-345: 

"...  THE THEORY UPON WHICH, APPARENTLY, THIS SUIT WAS BROUGHT IS
THAT PARTIES HAVE AN APPEAL FROM THE LEGISLATURE TO THE COURTS; AND
THAT THE LATTER ARE GIVEN AN IMMEDIATE AND GENERAL SUPERVISION OF THE
CONSTITUTIONALITY OF THE ACTS OF THE FORMER.  SUCH IS NOT TRUE. 
WHENEVER, IN PURSUANCE OF AN HONEST AND ACTUAL ANTAGONISTIC ASSERTION
OF RIGHTS BY ONE INDIVIDUAL AGAINST ANOTHER, THERE IS PRESENTED A
QUESTION INVOLVING THE VALIDITY OF ANY ACT OF ANY LEGISLATURE, STATE OR
FEDERAL, AND THE DECISION NECESSARILY RESTS ON THE COMPETENCY OF THE
LEGISLATURE TO SO ENACT, THE COURT MUST, IN THE EXERCISE OF ITS SOLEMN
DUTIES, DETERMINE WHETHER THE ACT BE CONSTITUTIONAL OR NOT; BUT SUCH AN
EXERCISE OF POWER IS THE ULTIMATE AND SUPREME FUNCTION OF COURTS.  IT
IS LEGITIMATE ONLY IN THE LAST RESORT, AND AS A NECESSITY IN THE
DETERMINATION OF REAL, EARNEST AND VITAL CONTROVERSY BETWEEN
INDIVIDUALS.  IT NEVER WAS THE THOUGHT THAT, BY MEANS OF A FRIENDLY
SUIT, A PARTY BEATEN IN THE LEGISLATURE COULD TRANSFER TO THE COURTS AN
INQUIRY AS TO THE CONSTITUTIONALITY OF THE LEGISLATIVE ACT."    WHAT
WAS SAID IN THE WELLMAN CASE FOUND READY APPLICATION IN PROCEEDINGS
BROUGHT UNDER MODERN DECLARATORY JUDGMENT PROCEDURES.  FOR JUST AS THE
DECLARATORY JUDGMENT DEVICE DOES NOT "PURPORT TO ALTER THE CHARACTER OF
THE CONTROVERSIES WHICH ARE THE SUBJECT OF THE JUDICIAL POWER UNDER THE
CONSTITUTION," UNITED STATES V. WEST VIRGINIA, 295 U.S. 463, 475, IT
DOES NOT PERMIT LITIGANTS TO INVOKE THE POWER OF THIS COURT TO OBTAIN
CONSTITUTIONAL RULINGS IN ADVANCE OF NECESSITY.  ELECTRIC BOND & SHARE
CO. V. SECURITIES AND EXCHANGE COMM'N, 303 U.S. 419, 443.  THE COURT
HAS BEEN ON THE ALERT AGAINST USE OF THE DECLARATORY JUDGMENT DEVICE
FOR AVOIDING THE RIGOROUS INSISTENCE ON EXIGENT ADVERSITY AS A
CONDITION FOR EVOKING COURT ADJUDICATION.  THIS IS AS TRUE OF STATE
COURT SUITS FOR DECLARATORY JUDGMENTS AS OF FEDERAL.  BY EXERCISING
THEIR JURISDICTION, STATE COURTS CANNOT DETERMINE THE JURISDICTION TO
BE EXERCISED BY THIS COURT.  TYLER V. JUDGES OF THE COURT OF
REGISTRATION, 179 U.S. 405; DOREMUS V. BOARD OF EDUCATION, 342 U.S.
429.  ALTHOUGH WE HAVE HELD THAT A STATE DECLARATORY-JUDGMENT SUIT MAY
CONSTITUTE A CASE OR CONTROVERSY WITHIN OUR APPELLATE JURISDICTION, IT
IS TO BE REVIEWED HERE ONLY "SO LONG AS THE CASE RETAINS THE ESSENTIALS
OF AN ADVERSARY PROCEEDING, INVOLVING A REAL, NOT A HYPOTHETICAL,
CONTROVERSY, WHICH IS FINALLY DETERMINED BY THE JUDGMENT BELOW." 
NASHVILLE, C. & ST. L. R. CO. V. WALLACE, 288 U.S. 249, 264.  IT WAS
WITH RESPECT TO A STATE-ORIGINATING DECLARATORY JUDGMENT PROCEEDING
THAT WE SAID, IN ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S.
450, 471, THAT "THE EXTENT TO WHICH THE DECLARATORY JUDGMENT PROCEDURE
MAY BE USED IN THE FEDERAL COURTS TO CONTROL STATE ACTION LIES IN THE
SOUND DISCRETION OF THE COURT  ...  ."  INDEED, WE HAVE RECOGNIZED, IN
SUCH CASES, THAT "...  THE DISCRETIONARY ELEMENT CHARACTERISTIC OF
DECLARATORY JURISDICTION AND PRACTICE WITHOUT THE REMEDIAL PHASE,
OFFERS A CONVENIENT INSTRUMENT FOR MAKING  ...  EFFECTIVE  ..."  THE
POLICY AGAINST PREMATURE CONSTITUTIONAL DECISION.  RESCUE ARMY V.
MUNICIPAL COURT, 331 U.S. 549, 573, N. 41. 

INSOFAR AS APPELLANTS SEEK TO JUSTIFY THE EXERCISE OF OUR DECLARATORY
POWER BY THE THREAT OF PROSECUTION, FACTS WHICH THEY CAN NO MORE
NEGATIVE BY COMPLAINT AND DEMURRER THAN THEY COULD BY STIPULATION
PRECLUDE OUR DETERMINING THEIR APPEALS ON THE MERITS.  CF. BARTEMEYER
V. IOWA, 18 WALL.  129, 134-135.  IT IS CLEAR THAT THE MERE EXISTENCE
OF A STATE PENAL STATUTE WOULD CONSTITUTE INSUFFICIENT GROUNDS TO
SUPPORT A FEDERAL COURT'S ADJUDICATION OF ITS CONSTITUTIONALITY IN
PROCEEDINGS BROUGHT AGAINST THE STATE'S PROSECUTING OFFICIALS IF REAL
THREAT OF ENFORCEMENT IS WANTING.  SEE EX PARTE LA PRADE, 289 U.S. 444,
458.  IF THE PROSECUTOR EXPRESSLY AGREES NOT TO PROSECUTE, A SUIT
AGAINST HIM FOR DECLARATORY AND INJUNCTIVE RELIEF IS NOT SUCH AN
ADVERSARY CASE AS WILL BE REVIEWED HERE.  C.I.O. V. MCADORY, 325 U.S.
472, 475.  EIGHTY YEARS OF CONNECTICUT HISTORY DEMONSTRATE A SIMILAR,
ALBEIT TACIT AGREEMENT.  THE FACT THAT CONNECTICUT HAS NOT CHOSEN TO
PRESS THE ENFORCEMENT OF THIS STATUTE DEPRIVES THESE CONTROVERSIES OF
THE IMMEDIACY WHICH IS AN INDISPENSABLE CONDITION OF CONSTITUTIONAL
ADJUDICATION.  THIS COURT CANNOT BE UMPIRE TO DEBATES CONCERNING
HARMLESS, EMPTY SHADOWS.  TO FIND IT NECESSARY TO PASS ON THESE
STATUTES NOW, IN ORDER TO PROTECT APPELLANTS FROM THE HAZARDS OF
PROSECUTION, WOULD BE TO CLOSE OUR EYES TO REALITY. 

NOR DOES THE ALLEGATION BY THE POES AND DOE THAT THEY ARE UNABLE TO
OBTAIN INFORMATION CONCERNING CONTRACEPTIVE DEVICES FROM DR. BUXTON,
"FOR THE SOLE REASON THAT THE DELIVERY AND USE OF SUCH INFORMATION AND
ADVICE MAY OR WILL BE CLAIMED BY THE DEFENDANT STATE'S ATTORNEY TO
CONSTITUTE OFFENSES," DISCLOSE A NECESSITY FOR PRESENT CONSTITUTIONAL
DECISION.  IT IS TRUE THAT THIS COURT HAS SEVERAL TIMES PASSED UPON
CRIMINAL STATUTES CHALLENGED BY PERSONS WHO CLAIMED THAT THE EFFECTS OF
THE STATUTES WERE TO DETER OTHERS FROM MAINTAINING PROFITABLE OR
ADVANTAGEOUS RELATIONS WITH THE COMPLAINANTS.  SEE, E.G., TRUAX V.
RAICH, 239 U.S. 33; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510.  BUT IN
THESE CASES THE DETERRENT EFFECT COMPLAINED OF WAS ONE WHICH WAS
GROUNDED IN A REALISTIC FEAR OF PROSECUTION.  WE CANNOT AGREE THAT IF
DR. BUXTON'S COMPLIANCE WITH THESE STATUTES IS UNCOERCED BY THE RISK OF
THEIR ENFORCEMENT, HIS PATIENTS ARE ENTITLED TO A DECLARATORY JUDGMENT
CONCERNING THE STATUTES' VALIDITY.  AND, WITH DUE REGARD TO DR.
BUXTON'S STANDING AS A PHYSICIAN AND TO HIS PERSONAL SENSITIVENESS, WE
CANNOT ACCEPT, AS THE BASIS OF CONSTITUTIONAL ADJUDICATION, OTHER THAN
AS CHIMERICAL THE FEAR OF ENFORCEMENT OF PROVISIONS THAT HAVE DURING SO
MANY YEARS GONE UNIFORMLY AND WITHOUT EXCEPTION UNENFORCED. 

JUSTICIABILITY IS OF COURSE NOT A LEGAL CONCEPT WITH A FIXED CONTENT
OR SUSCEPTIBLE OF SCIENTIFIC VERIFICATION.  ITS UTILIZATION IS THE
RESULTANT OF MANY SUBTLE PRESSURES, INCLUDING THE APPROPRIATENESS OF
THE ISSUES FOR DECISION BY THIS COURT AND THE ACTUAL HARDSHIP TO THE
LITIGANTS OF DENYING THEM THE RELIEF SOUGHT.  BOTH THESE FACTORS
JUSTIFY WITHHOLDING ADJUDICATION OF THE CONSTITUTIONAL ISSUE RAISED
UNDER THE CIRCUMSTANCES AND IN THE MANNER IN WHICH THEY ARE NOW BEFORE
THE COURT.  DISMISSED. 

FN1  PLAINTIFFS IN THE TWO CASES COMPOSING NO. 60 SUE UNDER
FICTITIOUS NAMES.  THE SUPREME COURT OF ERRORS OF CONNECTICUT APPROVED
THIS PROCEDURE IN THE SPECIAL CIRCUMSTANCES OF THE CASES. 

FN2  AS A MATTER OF SPECIFIC LEGISLATION, CONNECTICUT OUTLAWS ONLY
THE USE OF CONTRACEPTIVE MATERIALS.  CONN. GEN. STAT. REV., 1958, SEC.
53-32 PROVIDES: 

"USE OF DRUGS OR INSTRUMENTS TO PREVENT CONCEPTION.  ANY PERSON WHO
USES ANY DRUG, MEDICINAL ARTICLE OR INSTRUMENT FOR THE PURPOSE OF
PREVENTING CONCEPTION SHALL BE FINED NOT LESS THAN FIFTY DOLLARS OR
IMPRISONED NOT LESS THAN SIXTY DAYS NOR MORE THAN ONE YEAR OR BE BOTH
FINED AND IMPRISONED." 

THERE ARE NO SUBSTANTIVE PROVISIONS DEALING WITH THE SALE OR
DISTRIBUTION OF SUCH DEVICES, NOR WITH THE GIVING OF INFORMATION
CONCERNING THEIR USE.  THESE ACTIVITIES ARE DEEMED TO BE INVOLVED IN
LAW SOLELY BECAUSE OF THE GENERAL CRIMINAL ACCESSORY ENACTMENT OF
CONNECTICUT.  THIS IS CONN. GEN. STAT. REV., 1958, SEC. 54-196: 

"ACCESSORIES.  ANY PERSON WHO ASSISTS, ABETS, COUNSELS, CAUSES, HIRES
OR COMMANDS ANOTHER TO COMMIT ANY OFFENSE MAY BE PROSECUTED AND
PUNISHED AS IF HE WERE THE PRINCIPAL OFFENDER." 

FN3  THE ASSUMPTION OF PROSECUTION OF SPOUSES FOR USE OF
CONTRACEPTIVES IS NOT ONLY INHERENTLY BIZARRE, AS WAS ADMITTED BY
COUNSEL, BUT IS UNDERSCORED IN ITS IMPLAUSIBILITY BY THE DISABILITY OF
SPOUSES, UNDER CONNECTICUT LAW, FROM BEING COMPELLED TO TESTIFY AGAINST
ONE ANOTHER. 

FN4  IT IS ALSO WORTHY OF NOTE THAT THE SUPREME COURT OF ERRORS HAS
HELD THAT CONTRACEPTIVE DEVICES COULD NOT BE SEIZED AND DESTROYED AS
NUISANCES UNDER THE STATE'S SEIZURE STATUTES.  SEE STATE V. CERTAIN
CONTRACEPTIVE MATERIALS, 126 CONN. 428, 11 A.2D 863, DECIDED ON THE
SAME DAY AS THE NELSON CASE. 

FN5  SEE, E.G., BRAXTON COUNTY COURT V. WEST VIRGINIA, 208 U.S. 192;
YAZOO & MISSISSIPPI VALLEY R. CO. V. JACKSON VINEGAR CO., 226 U.S. 217;
FAIRCHILD V. HUGHES, 258 U.S. 126; TILESTON V. ULLMAN, 318 U.S. 44;
UNITED STATES V. RAINES, 362 U.S. 17.  CF. OWINGS V. NORWOOD'S LESSEE,
5 CRANCH 344. 

FN6  SEE, E.G., NEW JERSEY V. SARGENT, 269 U.S. 328; ARIZONA V.
CALIFORNIA, 283 U.S. 423; INTERNATIONAL LONGSHOREMEN'S UNION V. BOYD,
347 U.S. 222.  CF. COFFMAN V. BREEZE CORPORATIONS, 323 U.S. 316. 

FN7  SEE, E.G., SAN MATEO COUNTY V. SOUTHERN PACIFIC R. CO., 116 U.S.
138; SINGER MFG. CO. V. WRIGHT, 141 U.S. 696; MILLS V. GREEN, 159 U.S.
651; KIMBALL V. KIMBALL, 174 U.S. 158; TENNESSEE V. CONDON, 189 U.S.
64; AMERICAN BOOK CO. V. KANSAS, 193 U.S. 49; JONES V. MONTAGUE, 194
U.S. 147; SECURITY MUTUAL LIFE INS. CO. V. PREWITT, 200 U.S. 446;
RICHARDSON V. MCCHESNEY, 218 U.S. 487; BERRY V. DAVIS, 242 U.S. 468;
ATHERTON MILLS V. JOHNSTON, 259 U.S. 13. 

FN8  MR. JUSTICE BRANDEIS, CONCURRING, IN ASHWANDER V. TENNESSEE
VALLEY AUTHORITY, 297 U.S. 288, 341, 347. 

FN9  THE MELLON CASES INVOLVED WHAT IS TECHNICALLY DESIGNATED AS THE
PROBLEM OF "STANDING," BUT THE CONCERN WHICH THEY EXEMPLIFY THAT
CONSTITUTIONAL ISSUES BE DETERMINED ONLY AT THE SUIT OF A PERSON
IMMEDIATELY INJURED HAS EQUAL APPLICATION HERE.  IT MAKES LITTLE SENSE
TO INSIST THAT ONLY THE PARTIES THEMSELVES WHOM LEGISLATION IMMEDIATELY
THREATENS MAY SUE TO STRIKE IT DOWN AND, AT THE SAME TIME, PERMIT SUCH
SUIT WHEN THERE IS NOT EVEN A REMOTE LIKELIHOOD THAT THE THREAT TO THEM
WILL IN FACT MATERIALIZE. 

MR. JUSTICE BLACK DISSENTS BECAUSE HE BELIEVES THAT THE
CONSTITUTIONAL QUESTIONS SHOULD BE REACHED AND DECIDED. 

MR. JUSTICE BRENNAN, CONCURRING IN THE JUDGMENT. 

I AGREE THAT THIS APPEAL MUST BE DISMISSED FOR FAILURE TO PRESENT A
REAL AND SUBSTANTIAL CONTROVERSY WHICH UNEQUIVOCALLY CALLS FOR
ADJUDICATION OF THE RIGHTS CLAIMED IN ADVANCE OF ANY ATTEMPT BY THE
STATE TO CURTAIL THEM BY CRIMINAL PROSECUTION.  I AM NOT CONVINCED, ON
THIS SKIMPY RECORD, THAT THESE APPELLANTS AS INDIVIDUALS ARE TRULY
CAUGHT IN AN INESCAPABLE DILEMMA.  THE TRUE CONTROVERSY IN THIS CASE IS
OVER THE OPENING OF BIRTH-CONTROL CLINICS ON A LARGE SCALE; IT IS THAT
WHICH THE STATE HAS PREVENTED IN THE PAST, NOT THE USE OF
CONTRACEPTIVES BY ISOLATED AND INDIVIDUAL MARRIED COUPLES.  IT WILL BE
TIME ENOUGH TO DECIDE THE CONSTITUTIONAL QUESTIONS URGED UPON US WHEN,
IF EVER, THAT REAL CONTROVERSY FLARES UP AGAIN.  UNTIL IT DOES, OR
UNTIL THE STATE MAKES A DEFINITE AND CONCRETE THREAT TO ENFORCE THESE
LAWS AGAINST INDIVIDUAL MARRIED COUPLES - A THREAT WHICH IT HAS NEVER
MADE IN THE PAST EXCEPT UNDER THE PROVOCATION OF LITIGATION - THIS
COURT MAY NOT BE COMPELLED TO EXERCISE ITS MOST DELICATE POWER OF
CONSTITUTIONAL ADJUDICATION. 

MR. JUSTICE DOUGLAS, DISSENTING. 

                            I. 

THESE CASES ARE DISMISSED BECAUSE A MAJORITY OF THE MEMBERS OF THIS
COURT CONCLUDE, FOR VARYING REASONS, THAT THIS CONTROVERSY DOES NOT
PRESENT A JUSTICIABLE QUESTION.  THAT CONCLUSION IS TOO TRANSPARENT TO
REQUIRE AN EXTENDED REPLY.  THE DEVICE OF THE DECLARATORY JUDGMENT IS
AN HONORED ONE.   ITS USE IN THE FEDERAL SYSTEM IS RESTRICTED TO
"CASES" OR "CONTROVERSIES" WITHIN THE MEANING OF ARTICLE III.  THE
QUESTION MUST BE "APPROPRIATE FOR JUDICIAL DETERMINATION," NOT
HYPOTHETICAL, ABSTRACT, ACADEMIC OR MOOT.  AETNA LIFE INS. CO. V.
HAWORTH, 300 U.S. 227, 240.  IT MUST TOUCH "THE LEGAL RELATIONS OF
PARTIES HAVING ADVERSE LEGAL INTERESTS."  ID., 240-241.  IT MUST BE
"REAL AND SUBSTANTIAL" AND ADMIT OF "SPECIFIC RELIEF THROUGH A DECREE
OF A CONCLUSIVE CHARACTER."  ID., 241.  THE FACT THAT DAMAGES ARE NOT
AWARDED OR AN INJUNCTION DOES NOT ISSUE, THE FACT THAT THERE ARE NO
ALLEGATIONS OF IRREPARABLE INJURY ARE IRRELEVANT.  ID., 241.  THIS IS
HORNBOOK LAW.  THE NEED FOR THIS REMEDY IN THE FEDERAL FIELD WAS
SUMMARIZED IN A SENATE REPORT AS FOLLOWS: 

"  ...  IT IS OFTEN NECESSARY, IN THE ABSENCE OF THE DECLARATORY
JUDGMENT PROCEDURE, TO VIOLATE OR PURPORT TO VIOLATE A STATUTE IN ORDER
TO OBTAIN A JUDICIAL DETERMINATION OF ITS MEANING OR VALIDITY."  S.
REP. NO. 1005, 73D CONG., 2D SESS., PP. 2-3. 

IF THERE IS A CASE WHERE THE NEED FOR THIS REMEDY IN THE SHADOW OF A
CRIMINAL PROSECUTION IS SHOWN, IT IS THIS ONE, AS MR. JUSTICE HARLAN
DEMONSTRATES.  PLAINTIFFS IN NO. 60 ARE TWO SETS OF HUSBAND AND WIFE. 
ONE WIFE IS PATHETICALLY ILL, HAVING DELIVERED A STILLBORN FETUS.  IF
SHE BECOMES PREGNANT AGAIN, HER LIFE WILL BE GRAVELY JEOPARDIZED.  THIS
COUPLE HAVE BEEN UNABLE TO GET MEDICAL ADVICE CONCERNING THE "BEST AND
SAFEST" MEANS TO AVOID PREGNANCY FROM THEIR PHYSICIAN, PLAINTIFF IN NO.
61, BECAUSE IF HE GAVE IT HE WOULD COMMIT A CRIME.  THE USE OF
CONTRACEPTIVE DEVICES WOULD ALSO CONSTITUTE A CRIME.  AND IT IS ALLEGED
- AND ADMITTED BY THE STATE - THAT THE STATE'S ATTORNEY INTENDS TO
ENFORCE THE LAW BY PROSECUTING OFFENSES UNDER THE LAWS. 

A PUBLIC CLINIC DISPENSING BIRTH-CONTROL INFORMATION HAS INDEED BEEN
CLOSED BY THE STATE.  DOCTORS AND A NURSE WORKING IN THAT CLINIC WERE
ARRESTED BY THE POLICE AND CHARGED WITH ADVISING MARRIED WOMEN ON THE
USE OF CONTRACEPTIVES.  THAT LITIGATION PRODUCED STATE V. NELSON, 126
CONN. 412, 11 A.2D 856, WHICH UPHELD THESE STATUTES.  THAT SAME POLICE
RAID ON THE CLINIC RESULTED IN THE SEIZURE OF A QUANTITY OF THE
CLINIC'S CONTRACEPTION LITERATURE AND MEDICAL EQUIPMENT AND SUPPLIES. 
THE LEGALITY OF THAT SEIZURE WAS IN QUESTION IN STATE V. CERTAIN
CONTRACEPTIVE MATERIALS, 126 CONN. 428, 11 A.2D 863. 

THE COURT REFERS TO THE NELSON PROSECUTION AS A "TEST CASE" AND
IMPLIES THAT IT HAD LITTLE IMPACT.   YET ITS IMPACT WAS DESCRIBED
DIFFERENTLY BY A CONTEMPORARY OBSERVER WHO CONCLUDED HIS COMMENT WITH
THIS SENTENCE:  "THIS SERIOUS SETBACK TO THE BIRTH CONTROL MOVEMENT
(THE NELSON CASE) LED TO THE CLOSING OF ALL THE CLINICS IN THE STATE,
JUST AS THEY HAD BEEN PREVIOUSLY CLOSED IN THE STATE OF
MASSACHUSETTS."  (FN1)  AT ORAL ARGUMENT, COUNSEL FOR APPELLANTS
CONFIRMED THAT THE CLINICS ARE STILL CLOSED.  IN RESPONSE TO A QUESTION
FROM THE BENCH, HE AFFIRMED THAT "NO PUBLIC OR PRIVATE CLINIC" HAS
DARED GIVE BIRTH-CONTROL ADVICE SINCE THE DECISION IN THE NELSON CASE. 
(FN2)    THESE, THEN, ARE THE CIRCUMSTANCES IN WHICH THE COURT FEELS
THAT IT CAN, CONTRARY TO EVERY PRINCIPLE OF AMERICAN OR ENGLISH COMMON
LAW, (FN3) GO OUTSIDE THE RECORD TO CONCLUDE THAT THERE EXISTS A "TACIT
AGREEMENT" THAT THESE STATUTES WILL NOT BE ENFORCED.  NO LAWYER, I
THINK, WOULD ADVISE HIS CLIENTS TO RELY ON THAT "TACIT AGREEMENT."  NO
POLICE OFFICIAL, I THINK, WOULD FEEL HIMSELF BOUND BY THAT "TACIT
AGREEMENT."  AFTER OUR NATIONAL EXPERIENCE DURING THE PROHIBITION ERA,
IT WOULD BE ABSURD TO PRETEND THAT ALL CRIMINAL STATUTES ARE ADEQUATELY
ENFORCED.  BUT THAT DOES NOT MEAN THAT BOOTLEGGING WAS THE LESS A
CRIME.  CF.  COSTELLO V. UNITED STATES, 365 U.S. 265.  IN FACT, AN
ARBITRARY ADMINISTRATIVE PATTERN OF NON-ENFORCEMENT MAY INCREASE THE
HARDSHIPS OF THOSE SUBJECT TO THE LAW.  SEE J. GOLDSTEIN, POLICE
DISCRETION NOT TO INVOKE THE CRIMINAL PROCESS, 69 YALE L.J. 543. 

WHEN THE COURT GOES OUTSIDE THE RECORD TO DETERMINE THAT CONNECTICUT
HAS ADOPTED "THE UNDEVIATING POLICY OF NULLIFICATION  ...  OF ITS ANTI
CONTRACEPTIVE LAWS," IT SELECTS A PARTICULARLY POOR CASE IN WHICH TO
EXERCISE SUCH A NOVEL POWER.  THIS IS NOT A LAW WHICH IS A DEAD
LETTER.  TWICE SINCE 1940, CONNECTICUT HAS RE-ENACTED THESE LAWS AS
PART OF GENERAL STATUTORY REVISIONS.  CONSISTENTLY, BILLS TO REMOVE THE
STATUTES FROM THE BOOKS HAVE BEEN REJECTED BY THE LEGISLATURE.  IN
SHORT, THE STATUTES - FAR FROM BEING THE ACCIDENTAL LEFT-OVERS OF
ANOTHER ERA - ARE THE CENTER OF A CONTINUING CONTROVERSY IN THE STATE. 
SEE, E.G., THE NEW REPUBLIC, MAY 19, 1947, P. 8. 

AGAIN, THE COURT RELIES ON THE INABILITY OF COUNSEL TO SHOW ANY
ATTEMPTS, OTHER THAN THE NELSON CASE, "TO ENFORCE THE PROHIBITION OF
DISTRIBUTION OR USE OF CONTRACEPTIVE DEVICES BY CRIMINAL PROCESS." 
YET, ON ORAL ARGUMENT, COUNSEL FOR THE APPELLEE STATED ON HIS OWN
KNOWLEDGE THAT SEVERAL PROPRIETORS HAD BEEN PROSECUTED IN THE "MINOR
POLICE COURTS OF CONNECTICUT" AFTER THEY HAD BEEN "PICKED UP" FOR
SELLING CONTRACEPTIVES.  THE ENFORCEMENT OF CRIMINAL LAWS IN MINOR
COURTS HAS JUST AS MUCH IMPACT AS IN THOSE CASES WHERE APPELLATE COURTS
ARE RESORTED TO.  THE NEED OF THE PROTECTION OF CONSTITUTIONAL
GUARANTEES, AND THE RIGHT TO THEM, ARE NOT LESS BECAUSE THE MATTER IS
SMALL OR THE COURT LOWLY.  SEE THOMPSON V. CITY OF LOUISVILLE, 362 U.S.
199; TUMEY V. OHIO, 273 U.S. 510.  NOR IS THE NEED LACKING BECAUSE THE
DISPENSING OF BIRTH-CONTROL INFORMATION IS BY A SINGLE DOCTOR RATHER
THAN BY BIRTH-CONTROL CLINICS.  THE NATURE OF THE CONTROVERSY WOULD NOT
BE CHANGED ONE IOTA HAD A DOZEN DOCTORS, REPRESENTING A DOZEN BIRTH
CONTROL CLINICS, SUED FOR REMEDIAL RELIEF. 

WHAT ARE THESE PEOPLE - DOCTOR AND PATIENTS - TO DO?  FLOUT THE LAW
AND GO TO PRISON?  VIOLATE THE LAW SURREPTITIOUSLY AND HOPE THEY WILL
NOT GET CAUGHT?  BY TODAY'S DECISION WE LEAVE THEM NO OTHER
ALTERNATIVES.  IT IS NOT THE CHOICE THEY NEED HAVE UNDER THE REGIME OF
THE DECLARATORY JUDGMENT AND OUR CONSTITUTIONAL SYSTEM.  IT IS NOT THE
CHOICE WORTHY OF A CIVILIZED SOCIETY.  A SICK WIFE, A CONCERNED
HUSBAND, A CONSCIENTIOUS DOCTOR SEEK A DIGNIFIED, DISCRETE, ORDERLY
ANSWER TO THE CRITICAL PROBLEM CONFRONTING THEM.  WE SHOULD NOT TURN
THEM AWAY AND MAKE THEM FLOUT THE LAW AND GET ARRESTED TO HAVE THEIR
CONSTITUTIONAL RIGHTS DETERMINED.  SEE RAILWAY MAIL ASSN. V. CORSI, 326
U.S. 88.  THEY ARE ENTITLED TO AN ANSWER TO THEIR PREDICAMENT HERE AND
NOW. 

                                    II. 

THE RIGHT OF THE DOCTOR TO ADVISE HIS PATIENTS ACCORDING TO HIS BEST
LIGHTS SEEMS SO OBVIOUSLY WITHIN FIRST AMENDMENT RIGHTS AS TO NEED NO
EXTENDED DISCUSSION.  THE LEADING CASES ON FREEDOM OF EXPRESSION ARE
GENERALLY FRAMED WITH REFERENCE TO PUBLIC DEBATE AND DISCOURSE.  BUT AS
CHAFEE SAID, "THE FIRST AMENDMENT AND OTHER PARTS OF THE LAW ERECT A
FENCE INSIDE WHICH MEN CAN TALK.  THE LAW-MAKERS, LEGISLATORS AND
OFFICIALS STAY ON THE OUTSIDE OF THAT FENCE.  BUT WHAT THE MEN INSIDE
THE FENCE SAY WHEN THEY ARE LET ALONE IS NO CONCERN OF THE LAW."  THE
BLESSINGS OF LIBERTY (1956), P. 108. 

THE TEACHER (SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234) AS WELL AS THE
PUBLIC SPEAKER (THOMAS V. COLLINS, 323 U.S. 516) IS INCLUDED.  THE
ACTOR ON STAGE OR SCREEN, THE ARTIST WHOSE CREATION IS IN OIL OR CLAY
OR MARBLE, THE POET WHOSE READING PUBLIC MAY BE PRACTICALLY
NONEXISTENT, THE MUSICIAN AND HIS MUSICAL SCORES, THE COUNSELOR WHETHER
PRIEST, PARENT OR TEACHER NO MATTER HOW SMALL HIS AUDIENCE - THESE TOO
ARE BENEFICIARIES OF FREEDOM OF EXPRESSION.  THE REMARK BY PRESIDENT
JAMES A. GARFIELD THAT HIS IDEAL OF A COLLEGE WAS A LOG IN THE WOODS
WITH A STUDENT AT ONE END AND MARK HOPKINS AT ANOTHER (9 DICT.  AM.
BIOG., P. 216) PUTS THE PRESENT PROBLEM IN PROPER FIRST AMENDMENT
DIMENSIONS.  OF COURSE A PHYSICIAN CAN TALK FREELY AND FULLY WITH HIS
PATIENT WITHOUT THREAT OF RETALIATION BY THE STATE.  THE CONTRARY
THOUGHT - THE ONE ENDORSED SUB SILENTIO BY THE COURTS BELOW - HAS THE
CAST OF REGIMENTATION ABOUT IT, A CAST AT WAR WITH THE PHILOSOPHY AND
PRESUPPOSITIONS OF THIS FREE SOCIETY. 

WE SHOULD SAY WITH KANT THAT "IT IS ABSURD TO EXPECT TO BE
ENLIGHTENED BY REASON, AND AT THE SAME TIME TO PRESCRIBE TO HER WHAT
SIDE OF THE QUESTION SHE MUST ADOPT."  (FN4)  LEVELING THE DISCOURSE OF
MEDICAL MEN TO THE MORALITY OF A PARTICULAR COMMUNITY IS A DEADENING
INFLUENCE.  MILL SPOKE OF THE PRESSURES OF INTOLERANT GROUPS THAT
PRODUCE "EITHER MERE CONFORMERS TO COMMONPLACE, OR TIME-SERVERS FOR
TRUTH."  (FN5)  WE WITNESS IN THIS CASE A SEALING OF THE LIPS OF A
DOCTOR BECAUSE HE DESIRES TO OBSERVE THE LAW, OBNOXIOUS AS THE LAW MAY
BE.  THE STATE HAS NO POWER TO PUT ANY SANCTIONS OF ANY KIND ON HIM FOR
ANY VIEWS OR BELIEFS THAT HE HAS OR FOR ANY ADVICE HE RENDERS.  THESE
ARE HIS PROFESSIONAL DOMAINS INTO WHICH THE STATE MAY NOT INTRUDE.  THE
CHRONICLES ARE FILLED WITH SAD ATTEMPTS OF GOVERNMENT TO STOMP OUT
IDEAS, TO BAN THOUGHTS BECAUSE THEY ARE HERETICAL OR OBNOXIOUS.  AS
MILL STATED, "OUR MERELY SOCIAL INTOLERANCE KILLS NO ONE, ROOTS OUT NO
OPINIONS, BUT INDUCES MEN TO DISGUISE THEM, OR TO ABSTAIN FROM ANY
ACTIVE EFFORT FOR THEIR DIFFUSION."  (FN6) WHEN THAT HAPPENS SOCIETY
SUFFERS.  FREEDOM WORKING UNDERGROUND, FREEDOM BOOTLEGGED AROUND THE
LAW IS FREEDOM CRIPPLED.  A SOCIETY THAT TELLS ITS DOCTORS UNDER PAIN
OF CRIMINAL PENALTY WHAT THEY MAY NOT TELL THEIR PATIENTS IS NOT A FREE
SOCIETY.  ONLY FREE EXCHANGE OF VIEWS AND INFORMATION IS CONSISTENT
WITH "A CIVILIZATION OF THE DIALOGUE," TO BORROW A PHRASE FROM DR.
ROBERT M. HUTCHINS.  SEE WIEMAN V. UPDEGRAFF, 344 U.S. 183, 197
(CONCURRING OPINION). 

   III. 

I AM ALSO CLEAR THAT THIS CONNECTICUT LAW AS APPLIED TO THIS MARRIED
COUPLE DEPRIVES THEM OF "LIBERTY" WITHOUT DUE PROCESS OF LAW, AS THAT
CONCEPT IS USED IN THE FOURTEENTH AMENDMENT. 

THE FIRST EIGHT AMENDMENTS TO THE CONSTITUTION HAVE BEEN MADE
APPLICABLE TO THE STATES ONLY IN PART.  MY VIEW HAS BEEN THAT WHEN THE
FOURTEENTH AMENDMENT WAS ADOPTED, ITS DUE PROCESS CLAUSE INCORPORATED
ALL OF THOSE AMENDMENTS.  SEE ADAMSON V. CALIFORNIA, 332 U.S. 46, 68
(DISSENTING OPINION).  ALTHOUGH THE HISTORY OF THE FOURTEENTH AMENDMENT
MAY NOT BE CONCLUSIVE, THE WORDS "DUE PROCESS" ACQUIRED SPECIFIC
MEANING FROM ANGLO-AMERICAN EXPERIENCE.  (FN7)  AS MR. JUSTICE BRENNAN
RECENTLY STATED, "THE BILL OF RIGHTS IS THE PRIMARY SOURCE OF EXPRESSED
INFORMATION AS TO WHAT IS MEANT BY CONSTITUTIONAL LIBERTY.  THE
SAFEGUARDS ENSHRINED IN IT ARE DEEPLY ETCHED IN THE FOUNDATIONS OF
AMERICA'S FREEDOMS."  THE BILL OF RIGHTS AND THE STATES (1961), 36
N.Y.U.L. REV. 761, 776.  WHEN THE FRAMERS WROTE THE BILL OF RIGHTS THEY
ENSHRINED IN THE FORM OF CONSTITUTIONAL GUARANTEES THOSE RIGHTS - IN
PART SUBSTANTIVE, IN PART PROCEDURAL - WHICH EXPERIENCE INDICATED WERE
INDISPENSABLE TO A FREE SOCIETY.  SOME WOULD DISAGREE AS TO THEIR
IMPORTANCE; THE DEBATE CONCERNING THEM DID INDEED START BEFORE THEIR
ADOPTION AND HAS CONTINUED TO THIS DAY.  YET THE CONSTITUTIONAL
CONCEPTION OF "DUE PROCESS" MUST, IN MY VIEW, INCLUDE THEM ALL UNTIL
AND UNLESS THERE ARE AMENDMENTS THAT REMOVE THEM.  THAT HAS INDEED BEEN
THE VIEW OF A FULL COURT OF NINE JUSTICES, THOUGH THE MEMBERS WHO MAKE
UP THAT COURT UNFORTUNATELY DID NOT SIT AT THE SAME TIME.  (FN8) 

THOUGH I BELIEVE THAT "DUE PROCESS" AS USED IN THE FOURTEENTH
AMENDMENT INCLUDES ALL OF THE FIRST EIGHT AMENDMENTS, I DO NOT THINK IT
IS RESTRICTED AND CONFINED TO THEM.  WE RECENTLY HELD THAT THE
UNDEFINED "LIBERTY" IN THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
INCLUDES FREEDOM TO TRAVEL.  KENT V. DULLES, 357 U.S. 116, 125-127. 
CF. EDWARDS V. CALIFORNIA, 314 U.S. 160, 177, 178 (CONCURRING
OPINION).  THE RIGHT "TO MARRY, ESTABLISH A HOME AND BRING UP CHILDREN"
WAS SAID IN MEYER V. NEBRASKA, 262 U.S. 390, 399, TO COME WITHIN THE
"LIBERTY" OF THE PERSON PROTECTED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  AS I INDICATED IN MY DISSENT IN PUBLIC UTILITIES
COMM'N V. POLLAK, 343 U.S. 451, 467, "LIBERTY" WITHIN THE PURVIEW OF
THE FIFTH AMENDMENT INCLUDES THE RIGHT OF "PRIVACY," A RIGHT I THOUGHT
INFRINGED IN THAT CASE BECAUSE A MEMBER OF A "CAPTIVE AUDIENCE" WAS
FORCED TO LISTEN TO A GOVERNMENT-SPONSORED RADIO PROGRAM.  "LIBERTY" IS
A CONCEPTION THAT SOMETIMES GAINS CONTENT FROM THE EMANATIONS OF OTHER
SPECIFIC GUARANTEES (N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 460) OR FROM
EXPERIENCE WITH THE REQUIREMENTS OF A FREE SOCIETY. 

FOR YEARS THE COURT STRUCK DOWN SOCIAL LEGISLATION WHEN A PARTICULAR
LAW DID NOT FIT THE NOTIONS OF A MAJORITY OF JUSTICES AS TO LEGISLATION
APPROPRIATE FOR A FREE ENTERPRISE SYSTEM.  MR. JUSTICE HOLMES,
DISSENTING, RIGHTLY SAID THAT "A CONSTITUTION IS NOT INTENDED TO EMBODY
A PARTICULAR ECONOMIC THEORY, WHETHER OF PATERNALISM AND THE ORGANIC
RELATION OF THE CITIZEN TO THE STATE OR OF LAISSEZ FAIRE.  IT IS MADE
FOR PEOPLE OF FUNDAMENTALLY DIFFERING VIEWS, AND THE ACCIDENT OF OUR
FINDING CERTAIN OPINIONS NATURAL AND FAMILIAR OR NOVEL AND EVEN
SHOCKING OUGHT NOT TO CONCLUDE OUR JUDGMENT UPON THE QUESTION WHETHER
STATUTES EMBODYING THEM CONFLICT WITH THE CONSTITUTION OF THE UNITED
STATES."  LOCHNER V. NEW YORK, 198 U.S. 45, 75-76. 

THE ERROR OF THE OLD COURT, AS I SEE IT, WAS NOT IN ENTERTAINING
INQUIRIES CONCERNING THE CONSTITUTIONALITY OF SOCIAL LEGISLATION BUT IN
APPLYING THE STANDARDS THAT IT DID.  SEE TOT V. UNITED STATES, 319 U.S.
463; GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490.  SOCIAL LEGISLATION
DEALING WITH BUSINESS AND ECONOMIC MATTERS TOUCHES NO PARTICULARIZED
PROHIBITION OF THE CONSTITUTION, UNLESS IT BE THE PROVISION OF THE
FIFTH AMENDMENT THAT PRIVATE PROPERTY SHOULD NOT BE TAKEN FOR PUBLIC
USE WITHOUT JUST COMPENSATION.  IF IT IS FREE OF THE LATTER GUARANTEE,
IT HAS A WIDE SCOPE FOR APPLICATION.  SOME GO SO FAR AS TO SUGGEST THAT
WHATEVER THE MAJORITY IN THE LEGISLATURE SAYS GOES (CF. UNITED STATES
V. CHANDLER-DUNBAR CO., 229 U.S. 53, 64), THAT THERE IS NO OTHER
STANDARD OF CONSTITUTIONALITY.  THAT REDUCES THE LEGISLATIVE POWER TO
SHEER VOTING STRENGTH AND THE JUDICIAL FUNCTION TO A MATTER OF
STATISTICS.  AS ROBERT M. HUTCHINS HAS SAID, "IT IS OBVIOUSLY
IMPOSSIBLE TO RAISE QUESTIONS OF FREEDOM AND JUSTICE IF THE SOLE DUTY
OF THE COURT IS TO DECIDE WHETHER THE CASE AT BAR FALLS WITHIN THE
SCOPE OF THE DULY ISSUED COMMAND OF A DULY CONSTITUTED SOVEREIGN."  TWO
FACES OF FEDERALISM (1960), P. 18.  WHILE THE LEGISLATIVE JUDGMENT ON
ECONOMIC AND BUSINESS MATTERS IS "WELL-NIGH CONCLUSIVE" (BERMAN V.
PARKER, 348 U.S. 26, 32), IT IS NOT BEYOND JUDICIAL INQUIRY.  CF.
UNITED STATES V. OREGON, 366 U.S. 643, 649 (DISSENTING OPINION). 

THE REGIME OF A FREE SOCIETY NEEDS ROOM FOR VAST EXPERIMENTATION. 
CRISES, EMERGENCIES, EXPERIENCE AT THE INDIVIDUAL AND COMMUNITY LEVELS
PRODUCE NEW INSIGHTS; PROBLEMS EMERGE IN NEW DIMENSIONS; NEEDS, ONCE
NEVER IMAGINED, APPEAR.  TO STOP EXPERIMENTATION AND THE TESTING OF NEW
DECREES AND CONTROLS IS TO DEPRIVE SOCIETY OF A NEEDED VERSATILITY. 
YET TO SAY THAT A LEGISLATURE MAY DO ANYTHING NOT WITHIN A SPECIFIC
GUARANTEE OF THE CONSTITUTION MAY BE AS CRIPPLING TO A FREE SOCIETY AS
TO ALLOW IT TO OVERRIDE SPECIFIC GUARANTEES SO LONG AS WHAT IT DOES
FAILS TO SHOCK THE SENSIBILITIES OF A MAJORITY OF THE COURT.  (FN9) 

THE PRESENT LEGISLATION IS AN EXCELLENT EXAMPLE.  IF A STATE BANNED
COMPLETELY THE SALE OF CONTRACEPTIVES IN DRUG STORES, THE CASE WOULD BE
QUITE DIFFERENT.  IT MIGHT SEEM TO SOME OR TO ALL JUDGES AN
UNREASONABLE RESTRICTION.  YET IT MIGHT NOT BE IRRATIONAL TO CONCLUDE
THAT A BETTER WAY OF DISPENSING THOSE ARTICLES IS THROUGH PHYSICIANS. 
THE SAME MIGHT BE SAID OF A STATE LAW BANNING THE MANUFACTURE OF
CONTRACEPTIVES.  HEALTH, RELIGIOUS, AND MORAL ARGUMENTS MIGHT BE
MARSHALLED PRO AND CON.  YET IT IS NOT FOR JUDGES TO WEIGH THE
EVIDENCE.  WHERE EITHER THE SALE OR THE MANUFACTURE IS PUT UNDER
REGULATION, THE STRICTURES ARE ON BUSINESS AND COMMERCIAL DEALINGS THAT
HAVE HAD A LONG HISTORY WITH THE POLICE POWER OF THE STATES. 

THE PRESENT LAW, HOWEVER, DEALS NOT WITH SALE, NOT WITH MANUFACTURE,
BUT WITH USE.  IT PROVIDES: 

"ANY PERSON WHO USES ANY DRUG, MEDICINAL ARTICLE OR INSTRUMENT FOR
THE PURPOSE OF PREVENTING CONCEPTION SHALL BE FINED NOT LESS THAN FIFTY
DOLLARS OR IMPRISONED NOT LESS THAN SIXTY DAYS NOR MORE THAN ONE YEAR
OR BE BOTH FINED AND IMPRISONED."  CONN. GEN. STAT., 1958, SEC. 53-32. 

THE REGULATION AS APPLIED IN THIS CASE TOUCHES THE RELATIONSHIP
BETWEEN MAN AND WIFE.  IT REACHES INTO THE INTIMACIES OF THE MARRIAGE
RELATIONSHIP.  IF WE IMAGINE A REGIME OF FULL ENFORCEMENT OF THE LAW IN
THE MANNER OF AN ANTHONY COMSTOCK, (FN10) WE WOULD REACH THE POINT
WHERE SEARCH WARRANTS ISSUED AND OFFICERS APPEARED IN BEDROOMS TO FIND
OUT WHAT WENT ON.  (FN11)  IT IS SAID THAT THIS IS NOT THAT CASE.  AND
SO IT IS NOT.  BUT WHEN THE STATE MAKES "USE" A CRIME AND APPLIES THE
CRIMINAL SANCTION TO MAN AND WIFE, THE STATE HAS ENTERED THE INNERMOST
SANCTUM OF THE HOME.  IF IT CAN MAKE THIS LAW, IT CAN ENFORCE IT.  AND
PROOF OF ITS VIOLATION NECESSARILY INVOLVES AN INQUIRY INTO THE
RELATIONS BETWEEN MAN AND WIFE.    THAT IS AN INVASION OF THE PRIVACY
THAT IS IMPLICIT IN A FREE SOCIETY.  A NOTED THEOLOGIAN WHO CONCEIVES
OF THE USE OF A CONTRACEPTIVE AS A "SIN" NONETHELESS ADMITS THAT A
"USE" STATUTE SUCH AS THIS ENTERS A FORBIDDEN DOMAIN. 

"  ...  THE CONNECTICUT STATUTE CONFUSES THE MORAL AND LEGAL, IN THAT
IT TRANSPOSES WITHOUT FURTHER ADO A PRIVATE SIN INTO A PUBLIC CRIME. 
THE CRIMINAL ACT HERE IS THE PRIVATE USE OF CONTRACEPTIVES.  THE REAL
AREA WHERE THE COERCIONS OF LAW MIGHT, AND OUGHT TO, BE APPLIED, AT
LEAST TO CONTROL AN EVIL - NAMELY, THE CONTRACEPTIVE INDUSTRY - IS
QUITE OVERLOOKED.  AS IT STANDS, THE STATUTE IS, OF COURSE,
UNENFORCEABLE WITHOUT POLICE INVASION OF THE BEDROOM, AND IS THEREFORE
INDEFENSIBLE AS A PIECE OF LEGAL DRAUGHTSMANSHIP."  MURRAY, WE HOLD
THESE TRUTHS (1960), PP. 157-158. 

THIS NOTION OF PRIVACY IS NOT DRAWN FROM THE BLUE.  (FN12)  IT
EMANATES FROM THE TOTALITY OF THE CONSTITUTIONAL SCHEME UNDER WHICH WE
LIVE.  (FN13) 

"ONE OF THE EARMARKS OF THE TOTALITARIAN UNDERSTANDING OF SOCIETY IS
THAT IT SEEKS TO MAKE ALL SUBCOMMUNITIES - FAMILY, SCHOOL, BUSINESS,
PRESS, CHURCH - COMPLETELY SUBJECT TO CONTROL BY THE STATE.  THE STATE
THEN IS NOT ONE VITAL INSTITUTION AMONG OTHERS:  A POLICEMAN, A
REFEREE, AND A SOURCE OF INITIATIVE FOR THE COMMON GOOD.  INSTEAD, IT
SEEKS TO BE COEXTENSIVE WITH FAMILY AND SCHOOL, PRESS, BUSINESS
COMMUNITY, AND THE CHURCH, SO THAT ALL OF THESE COMPONENT INTEREST
GROUPS ARE, IN PRINCIPLE, REDUCED TO ORGANS AND AGENCIES OF THE STATE. 
IN A DEMOCRATIC POLITICAL ORDER, THIS MEGATHERIAN CONCEPT IS EXPRESSLY
REJECTED AS OUT OF ACCORD WITH THE DEMOCRATIC UNDERSTANDING OF SOCIAL
GOOD, AND WITH THE ACTUAL MAKE-UP OF THE HUMAN COMMUNITY."  (FN14) 

CAN THERE BE ANY DOUBT THAT A BILL OF RIGHTS THAT IN TIME OF PEACE
BARS SOLDIERS FROM BEING QUARTERED IN A HOME "WITHOUT THE CONSENT OF
THE OWNER"  (FN15) SHOULD ALSO BAR THE POLICE FROM INVESTIGATING THE
INTIMACIES OF THE MARRIAGE RELATION?  THE IDEA OF ALLOWING THE STATE
THAT LEEWAY IS CONGENIAL ONLY TO A TOTALITARIAN REGIME. 

I DISSENT FROM A DISMISSAL OF THESE CASES AND OUR REFUSAL TO STRIKE
DOWN THIS LAW. 

FN1  HIMES, A DECADE OF PROGRESS IN BIRTH CONTROL, 212 ANNALS AM.
ACAD.  POL.  & SOC.  SCI.  88, 94 (1940). 

FN2  IT MAY BE, AS SOME SUGGEST, THAT THESE BIZARRE LAWS ARE KEPT ON
THE BOOKS SOLELY TO INSURE THAT TRAFFIC IN CONTRACEPTIVES WILL BE
FURTIVE, OR WILL BE LIMITED TO THOSE WHO, BY THE ACCIDENT OF THEIR
EDUCATION, TRAVELS, OR WEALTH, NEED NOT RELY ON LOCAL PUBLIC CLINICS
FOR INSTRUCTION AND SUPPLY.  YET THESE LAWS - AS THE DECISION BELOW
SHOWS - ARE NOT LIMITED TO SUCH SITUATIONS. 

FN3  "ON THE CONTINENT THERE WAS SOME SPECULATION DURING THE MIDDLE
AGES AS TO WHETHER A LAW COULD BECOME INOPERATIVE THROUGH LONG
CONTINUED DESUETUDE.  IN ENGLAND, HOWEVER, THE IDEA OF PRESCRIPTION AND
THE ACQUISITION OR LOSS OF RIGHTS MERELY BY THE LAPSE OF A PARTICULAR
LENGTH OF TIME FOUND LITTLE FAVOUR  ...  .  THERE WAS CONSEQUENTLY NO
ROOM FOR ANY THEORY THAT STATUTES MIGHT BECOME OBSOLETE."  PLUCKNETT, A
CONCISE HISTORY OF THE COMMON LAW (1956), PP. 337-338. 

FN4  THE CRITIQUE OF PURE REASON, 42 GREAT BOOKS, P. 221. 

FN5  ON LIBERTY OF THOUGHT AND DISCUSSION, 43 GREAT BOOKS, P. 282. 

FN6  IBID. 

FN7  SEE KONVITZ, FUNDAMENTAL LIBERTIES OF A FREE PEOPLE (1957), PP.
37-39; GREEN, THE BILL OF RIGHTS, THE FOURTEENTH AMENDMENT AND THE
SUPREME COURT, 46 MICH. L. REV. 869, 904 ET SEQ. (1948); HOLMES, THE
FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS, 7 S.C.L.Q. REV.  596
(1955). 

AND SEE MR. JUSTICE RUTLEDGE (CONCURRING) IN IN RE OLIVER, 333 U.S.
257, 280-281. 

FN8  I START WITH JUSTICES BRADLEY, SWAYNE, FIELD, CLIFFORD AND
HARLAN.  TO THIS NUMBER, MR. JUSTICE BREWER CAN PROBABLY BE JOINED ON
THE BASIS OF HIS AGREEMENT "IN THE MAIN" WITH MR. JUSTICE HARLAN IN
O'NEIL V. VERMONT, 144 U.S. 323, 371.  SEE THE APPENDIX TO MR. JUSTICE
BLACK'S DISSENT IN ADAMSON V. CALIFORNIA, SUPRA, 120-123.  TO THESE I
ADD MR. JUSTICE BLACK, MR. JUSTICE MURPHY, MR. JUSTICE RUTLEDGE AND
MYSELF (ADAMSON V. CALIFORNIA, SUPRA, 68, 123). 

FN9  "THE DUE PROCESS CLAUSE IS SAID TO EXACT FROM THE STATES ALL
THAT IS 'IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY.'  IT IS FURTHER
SAID THAT THE CONCEPT IS A LIVING ONE, THAT IT GUARANTEES BASIC RIGHTS,
NOT BECAUSE THEY HAVE BECOME PETRIFIED AS OF ANY ONE TIME, BUT BECAUSE
DUE PROCESS FOLLOWS THE ADVANCING STANDARDS OF A FREE SOCIETY AS TO
WHAT IS DEEMED REASONABLE AND RIGHT.  IT IS TO BE APPLIED, ACCORDING TO
THIS VIEW, TO FACTS AND CIRCUMSTANCES AS THEY ARISE, THE CASES FALLING
ON ONE SIDE OF THE LINE OR THE OTHER AS A MAJORITY OF NINE JUSTICES
APPRAISE CONDUCT AS EITHER IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY
OR AS LYING WITHOUT THE CONFINES OF THAT VAGUE CONCEPT.  OF COURSE, IN
THIS VIEW, THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, WHICH
CONFESSEDLY MUST BE CONSTRUED LIKE THAT OF THE FOURTEENTH, MAY BE
REPETITIOUS OF MANY OF THE OTHER GUARANTIES OF THE FIRST EIGHT
AMENDMENTS AND MAY RENDER MANY OF THEIR PROVISIONS SUPERFLUOUS." 
ROBERTS, THE COURT AND THE CONSTITUTION (1951), P. 80. 

FN10  ANTHONY COMSTOCK (1844-1915) - THE CONGREGATIONALIST WHO
INSPIRED THE FOUNDATION OF THE NEW YORK SOCIETY FOR THE SUPPRESSION OF
VICE IN 1873 AND THE WATCH AND WARD SOCIETY OF BOSTON IN 1876 AND WHO
INSPIRED GEORGE BERNARD SHAW TO USE THE OPPROBRIOUS WORD "COMSTOCKERY"
IN MRS. WARREN'S PROFESSION - WAS RESPONSIBLE FOR THE PASSAGE IN 1879
OF THIS CONNECTICUT LAW. 

"ANTHONY COMSTOCK HAD MORAL EARNESTNESS AND IT CAN'T BE FAKED.  HIS
CONCERN WAS WITH PURITAN THEOLOGY RATHER THAN PURITAN ETHICS. 
RIGHTEOUSNESS SEEMED TO HIS LESS IMPORTANT THAN SALVATION AND
CONSEQUENTLY TRICKS WHICH SEEMED SHABBY TO NEUTRALS LEFT HIM WITHOUT
SHAME.  A MAN WHO FIGHTS FOR THE SAFETY OF HIS IMMORTAL SOUL CAN HARDLY
BE EXPECTED TO LIVE UP TO THE BEST QUEENSBERRY TRADITIONS IN THE
CLINCHES.  TO GRANT THE MAJOR PREMISES OF COMSTOCK'S RELIGIOUS AND
SOCIAL PHILOSOPHY IS TO ACQUIT HIM OF ANY LACK OF LOGIC.  OBSCENITY WAS
TO ANTHONY POISON TO SOUL AND BODY, AND ANYTHING REMOTELY TOUCHING UPON
SEX WAS TO HIS MIND OBSCENE.  HE SEEMS TO HAVE BELIEVED IMPLICITLY IN
MEDICAL THEORIES WHICH HAVE SINCE HIS TIME BEEN DISCARDED.  EVEN IN HIS
DAY BELIEFS WERE CHANGING, BUT COMSTOCK WAS LOYAL TO THE OLD-LINE
IDEAS.  IT WAS HIS NOTION THAT IDIOCY, EPILEPSY AND LOCOMOTOR-ATAXIA
WERE AMONG THE AILMENTS FOR WHICH AUTO-EROTICISM WAS RESPONSIBLE. 
SINCE DEATH AND DAMNATION MIGHT BE, ACCORDING TO HIS BELIEF, THE
PORTION OF THE GIRL OR BOY WHO READ A RIBALD STORY, IT IS EASY TO
UNDERSTAND WHY HE WAS SO IMPATIENT WITH THOSE WHO ADVANCED THE CLAIMS
OF ART. EVEN THOSE WHO LOVE BEAUTY WOULD HARDLY BE PREPARED TO BURN IN
HELL FOREVER IN ITS SERVICE.  COMSTOCK'S DECISION WAS EVEN EASIER, FOR
HE DID NOT KNOW, UNDERSTAND OR CARE ANYTHING ABOUT BEAUTY."  BROUN AND
LEECH, ANTHONY COMSTOCK (1927), PP. 265-266. 

FN11  THOSE WARRANTS WOULD, I THINK, GO BEYOND ANYTHING SO FAR KNOWN
IN OUR LAW.  THE LAW HAS LONG KNOWN THE WRIT DE VENTRE INSPICIENDO
AUTHORIZING MATRONS TO INSPECT THE BODY OF A WOMAN TO DETERMINE IF SHE
IS PREGNANT.  THIS WRIT WAS ISSUED TO DETERMINE BEFORE A HANGING
WHETHER A CONVICTED FEMALE WAS PREGNANT OR TO ASCERTAIN WHETHER
RIGHTFUL SUCCESSION OF PROPERTY WAS TO BE DEFEATED BY ASSERTION OF A
SUPPOSITIOUS HEIR.  SEE 1 BLACKSTONE COMMENTARIES (JONES ED. 1915), P.
651. 

FN12  THE RIGHT "TO BE LET ALONE" HAD MANY COMMON-LAW OVERTONES.  SEE
COOLEY, TORTS (2D ED. 1888), P. 29; WARREN AND BRANDEIS, RIGHT TO
PRIVACY, 4 HARV. L. REV. 192.  CF. OHIO REV. CODE, SEC. 2905.34, WHICH
MAKES CRIMINAL KNOWING "POSSESSION" OF "A DRUG, MEDICINE, ARTICLE, OR
THING INTENDED FOR THE PREVENTION OF CONCEPTION," DOCTORS AND DRUGGISTS
BEING EXCEPTED.  SEC. 2905.37. 

FN13  MR. JUSTICE MURPHY DISSENTING IN ADAMSON V. CALIFORNIA, 332
U.S. 46, 124, SAID: 

"I AGREE THAT THE SPECIFIC GUARANTEES OF THE BILL OF RIGHTS SHOULD BE
CARRIED OVER INTACT INTO THE FIRST SECTION OF THE FOURTEENTH
AMENDMENT.  BUT I AM NOT PREPARED TO SAY THAT THE LATTER IS ENTIRELY
AND NECESSARILY LIMITED BY THE BILL OF RIGHTS.  OCCASIONS MAY ARISE
WHERE A PROCEEDING FALLS SO FAR SHORT OF CONFORMING TO FUNDAMENTAL
STANDARDS OF PROCEDURE AS TO WARRANT CONSTITUTIONAL CONDEMNATION IN
TERMS OF A LACK OF DUE PROCESS DESPITE THE ABSENCE OF A SPECIFIC
PROVISION IN THE BILL OF RIGHTS." 

FN14  CALHOUN, DEMOCRACY AND NATURAL LAW, 5 NAT. LAW FORUM, 31, 36
(1960). 

FN15  THE THIRD AMENDMENT PROVIDES: 

"NO SOLDIER SHALL, IN TIME OF PEACE BE QUARTERED IN ANY HOUSE,
WITHOUT THE CONSENT OF THE OWNER, NOR IN TIME OF WAR, BUT IN A MANNER
TO BE PRESCRIBED BY LAW." 

MR. JUSTICE HARLAN, DISSENTING. 

I AM COMPELLED, WITH ALL RESPECT, TO DISSENT FROM THE DISMISSAL OF
THESE APPEALS.  IN MY VIEW THE COURSE WHICH THE COURT HAS TAKEN DOES
VIOLENCE TO ESTABLISHED CONCEPTS OF "JUSTICIABILITY," AND UNJUSTIFIABLY
LEAVES THESE APPELLANTS UNDER THE THREAT OF UNCONSTITUTIONAL
PROSECUTION.  REGRETTABLY, AN ADEQUATE EXPOSITION OF MY VIEWS CALLS FOR
A DISSENTING OPINION OF UNUSUAL LENGTH. 

BETWEEN THEM THESE SUITS SEEK DECLARATORY RELIEF AGAINST THE
THREATENED ENFORCEMENT OF CONNECTICUT'S ANTIBIRTHCONTROL LAWS MAKING
CRIMINAL THE USE OF CONTRACEPTIVES, INSOFAR AS SUCH LAWS RELATE TO THE
USE OF CONTRACEPTIVES BY MARRIED PERSONS AND THE GIVING OF ADVICE TO
MARRIED PERSONS IN THEIR USE.  (FN1)  THE APPELLANTS, A MARRIED COUPLE,
A MARRIED WOMAN, AND A DOCTOR, ASK THAT IT BE ADJUDGED, CONTRARY TO
WHAT THE CONNECTICUT COURTS HAVE HELD, THAT SUCH LAWS, AS THREATENED TO
BE APPLIED TO THEM IN CIRCUMSTANCES DESCRIBED IN THE OPINION ANNOUNCING
THE JUDGMENT OF THE COURT (ANTE, PP. 498-500), VIOLATE THE FOURTEENTH
AMENDMENT, IN THAT THEY DEPRIVE APPELLANTS OF LIFE, LIBERTY, OR
PROPERTY WITHOUT DUE PROCESS. 

THE PLURALITY OPINION OF THE COURT GIVES, AS THE BASIS FOR DISMISSING
THE APPEALS, THE REASON THAT, AS TO THE TWO MARRIED APPELLANTS, THE
LACK OF DEMONSTRATED ENFORCEMENT OF THE CONNECTICUT STATUTE BESPEAKS AN
ABSENCE OF EXIGENT ADVERSITY WHICH IS POSITED AS THE CONDITION FOR
EVOKING ADJUDICATION FROM US, AND, AS TO THE DOCTOR, THAT HIS
COMPLIANCE WITH THE STATE STATUTE IS UNCOERCED BY AN "REALISTIC FEAR OF
PROSECUTION," GIVING DUE RECOGNITION TO HIS "STANDING AS A PHYSICIAN
AND TO HIS PERSONAL SENSITIVENESS."  WITH THESE REASONS IT APPEARS THAT
THE CONCURRING OPINION AGREES. 

IN ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 462,
IT WAS SAID THAT "DECLARATORY JUDGMENT PROCEDURE MAY BE RESORTED TO
ONLY IN THE SOUND DISCRETION OF THE COURT AND WHERE THE INTERESTS OF
JUSTICE WILL BE ADVANCED AND AN ADEQUATE AND EFFECTIVE JUDGMENT MAY BE
RENDERED."  IN MY VIEW OF THESE CASES A PRESENT DETERMINATION OF THE
CONSTITUTIONAL ISSUES IS THE ONLY COURSE WHICH WILL ADVANCE JUSTICE,
AND I CAN FIND NO SOUND REASON BORN OF CONSIDERATIONS AS TO THE
POSSIBLE INADEQUACY OR INEFFECTIVENESS OF THE JUDGMENT THAT MIGHT BE
RENDERED WHICH JUSTIFIES THE COURT'S CONTRARY DISPOSITION.  WHILE
ORDINARILY I WOULD NOT DEEM IT APPROPRIATE TO DEAL, IN DISSENT, WITH
CONSTITUTIONAL ISSUES WHICH THE COURT HAS NOT REACHED, I SHALL DO SO
HERE BECAUSE SUCH ISSUES, AS I SEE THINGS, ARE ENTANGLED WITH THE
COURT'S CONCLUSION AS TO THE NONJUSTICIABILITY OF THESE APPEALS. 

                                  PART ONE

                        JUSTICIABILITY. 

THERE CAN BE NO QUARREL WITH THE PLURALITY OPINION'S STATEMENT THAT
"JUSTICIABILITY IS OF COURSE NOT A LEGAL CONCEPT WITH A FIXED CONTENT
OR SUSCEPTIBLE OF SCIENTIFIC VERIFICATION," BUT, WITH DEFERENCE, THE
FACT THAT JUSTICIABILITY IS NOT PRECISELY DEFINABLE DOES NOT MAKE IT
INEFFABLE.  ALTHOUGH A LARGE NUMBER OF CASES ARE BROUGHT TO BEAR ON THE
CONCLUSION THAT IS REACHED, I THINK IT IS FAIRLY DEMONSTRABLE THAT THE
AUTHORITIES FALL FAR SHORT OF COMPELLING DISMISSAL OF THESE APPEALS. 
(FN2)  EVEN SO, IT IS SUGGESTED THAT THE CASES DO POINT THE WAY TO A
"RIGOROUS INSISTENCE ON EXIGENT ADVERSITY" AND A "POLICY AGAINST
PREMATURE CONSTITUTIONAL DECISION," WHICH PROPERLY UNDERSTOOD DOES
INDEED DEMAND THAT RESULT. 

THE POLICY REFERRED TO IS ONE TO WHICH I UNRESERVEDLY SUBSCRIBE. 
WITHOUT UNDERTAKING TO BE DEFINITIVE, I WOULD SUPPOSE IT IS A POLICY
THE WISDOM OF WHICH IS WOVEN OF SEVERAL STRANDS:  (1) DUE REGARD FOR
THE FACT THAT THE SOURCE OF THE COURT'S POWER LIES ULTIMATELY IN ITS
DUTY TO DECIDE, IN CONFORMITY WITH THE CONSTITUTION, THE PARTICULAR
CONTROVERSIES WHICH COME TO IT, AND DOES NOT ARISE FROM SOME
GENERALIZED POWER OF SUPERVISION OVER STATE AND NATIONAL LEGISLATURES;
(2) THEREFORE IT SHOULD INSIST THAT LITIGANTS BRING TO THE COURT
INTERESTS AND RIGHTS WHICH REQUIRE PRESENT RECOGNITION AND
CONTROVERSIES DEMANDING IMMEDIATE RESOLUTION; (3) ALSO IT FOLLOWS THAT
THE CONTROVERSY MUST BE ONE WHICH IS IN TRUTH AND FACT THE LITIGANT'S
OWN, SO THAT THE CLASH OF ADVERSARY CONTEST WHICH IS NEEDED TO SHARPEN
AND ILLUMINATE ISSUES IS PRESENT AND GIVES THAT AID ON WHICH OUR
ADJUDICATORY SYSTEM HAS COME TO RELY; (4) FINALLY, IT IS REQUIRED THAT
OTHER MEANS OF REDRESS FOR THE PARTICULAR RIGHT CLAIMED BE UNAVAILABLE,
SO THAT THE PROCESS OF THE COURT MAY NOT BECOME OVERBURDENED AND
CONFLICTS WITH OTHER COURTS OR DEPARTMENTS OF GOVERNMENT MAY NOT
NEEDLESSLY BE CREATED, WHICH MIGHT COME ABOUT IF EITHER THOSE TRULY
AFFECTED ARE NOT THE ONES DEMANDING RELIEF, OR IF THE RELIEF WE CAN
GIVE IS NOT TRULY NEEDED.    IN PARTICULARIZATION OF THIS COMPOSITE
POLICY THE COURT, IN THE COURSE OF ITS DECISIONS ON MATTERS OF
JUSTICIABILITY, HAS DEVELOPED AND GIVEN EXPRESSION TO A NUMBER OF
IMPORTANT LIMITATIONS ON THE EXERCISE OF ITS JURISDICTION, THE PRESENCE
OR ABSENCE OF WHICH HERE SHOULD DETERMINE THE JUSTICIABILITY OF THESE
APPEALS.  SINCE ALL OF THEM ARE REFERRED TO HERE IN ONE WAY OR ANOTHER,
IT IS WELL TO PROCEED TO A DISCLOSURE OF THOSE WHICH ARE NOT INVOLVED
IN THE PRESENT APPEALS, THEREBY FOCUSING ATTENTION ON THE ONE FACTOR ON
WHICH RELIANCE APPEARS TO BE PLACED BY BOTH THE PLURALITY AND
CONCURRING OPINIONS IN THIS INSTANCE. 

FIRST:  IT SHOULD BY NOW BE ABUNDANTLY CLEAR THAT THE FACT THAT ONLY
CONSTITUTIONAL CLAIMS ARE PRESENTED IN PROCEEDINGS SEEKING ANTICIPATORY
RELIEF AGAINST STATE CRIMINAL STATUTES DOES NOT FOR THAT REASON ALONE
MAKE THE CLAIMS PREMATURE.  SEE, E.G., TERRACE V. THOMPSON, 263 U.S.
197; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510; EUCLID V. AMBLER CO.,
272 U.S. 365.  WHATEVER GENERAL PRONOUNCEMENTS MAY BE FOUND TO THE
CONTRARY MUST, IN CONTEXT, BE SEEN TO REFER TO CONSIDERATIONS QUITE
DIFFERENT FROM ANYTHING PRESENT IN THESE CASES. 

THUS IN ALABAMA STATE FEDERATION OF LABOR V. MCADORY, SUPRA,
ANTICIPATORY RELIEF WAS WITHHELD FOR THE PRECISE REASON THAT NORMALLY
THIS COURT OUGHT NOT TO CONSIDER THE CONSTITUTIONALITY OF A STATE
STATUTE IN THE ABSENCE OF A CONTROLLING INTERPRETATION OF ITS MEANING
AND EFFECT BY THE STATE COURTS.  TO THE SAME EFFECT SEE PARKER V. LOS
ANGELES COUNTY, 338 U.S. 327; WATSON V. BUCK, 313 U.S. 387; BEAL V.
MISSOURI PACIFIC R. CO., 312 U.S. 45.  INDEED, WITHOUT BELABORING THE
POINT, THE PRINCIPLE THAT ANTICIPATORY RELIEF AGAINST STATE CRIMINAL
STATUTES IS NOT UNAVAILABLE AS A GENERAL MATTER MAY BEST BE ILLUSTRATED
BY SEVERAL CASES RECENTLY DECIDED IN THIS COURT.  IN HARRISON V.
N.A.A.C.P., 360 U.S. 167, THE PREMISE OF OUR ACTION WAS THAT
ANTICIPATORY RELIEF SHOULD BE OBTAINED, IF POSSIBLE - WITH REVIEW HERE
ON CERTIORARI OR APPEAL - IN A STATE COURT WHICH COULD THEN
AUTHORITATIVELY CONSTRUE A NEW AND AMBIGUOUS STATE STATUTE; ONLY IF
SUCH RELIEF WERE UNAVAILABLE, SHOULD A FEDERAL DISTRICT COURT EXERCISE
ITS STATUTORY JURISDICTION.  AND IN OUR RECENT DECISIONS UPHOLDING THE
CONSTITUTIONALITY OF STATE SUNDAY-CLOSING LAWS, 366 U.S. 420, ET SEQ.,
NOT ONE OF THE OPINIONS PAUSED EVEN SLIGHTLY OVER THE APPROPRIATENESS
OF ANTICIPATORY RELIEF, ALTHOUGH IN ONE CASE THAT ISSUE WAS ARGUED,
GALLAGHER V. CROWN KOSHER SUPER MARKET, 366 U.S. 617. 

HENCE, ANY LANGUAGE IN THE CASES WHERE THE COURT HAS ABSTAINED FROM
EXERCISING ITS JURISDICTION, TO THE EFFECT THAT WE SHOULD NOT
"ENTERTAIN CONSTITUTIONAL QUESTIONS IN ADVANCE OF THE STRICTEST
NECESSITY," PARKER V. LOS ANGELES COUNTY, SUPRA, AT 333, IS NOT AT ALL
APPOSITE IN THE PRESENT CASES.  FOR THESE APPEALS COME TO US FROM THE
HIGHEST COURT OF CONNECTICUT, THUS AFFORDING US - IN COMPANY WITH
PREVIOUS STATE INTERPRETATIONS OF THE SAME STATUTE - A CLEAR
CONSTRUCTION OF THE SCOPE OF THE STATUTE, THEREBY IN EFFECT ASSURING
THAT OUR REVIEW CONSTITUTIES NO GREATER INTERFERENCE WITH STATE
ADMINISTRATION THAN THE STATE PROCEDURES THEMSELVES ALLOW. 

SECOND:  I DO NOT THINK THESE APPEALS MAY BE DISMISSED FOR WANT OF
"RIPENESS" AS THAT CONCEPT HAS BEEN UNDERSTOOD IN ITS "VARIED
APPLICATIONS."  (FN3)  THERE IS NO LACK OF "RIPENESS" IN THE SENSE THAT
IS EXEMPLIFIED BY CASES SUCH AS STEARNS V. WOOD, 236 U.S. 75; ELECTRIC
BOND & SHARE CO. V. SECURITIES & EXCHANGE COMM'N, 303 U.S. 419; UNITED
PUBLIC WORKERS V. MITCHELL, 330 U.S. 75; INTERNATIONAL LONGSHOREMEN'S
UNION V. BOYD, 347 U.S. 222; AND PERHAPS AGAIN PARKER V. LOS ANGELES
COUNTY, SUPRA.  IN ALL OF THOSE CASES THE LACK OF RIPENESS INHERED IN
THE FACT THAT THE NEED FOR SOME FURTHER PROCEDURE, SOME FURTHER
CONTINGENCY OF APPLICATION OR INTERPRETATION, WHETHER JUDICIAL,
ADMINISTRATIVE OR EXECUTIVE, OR SOME FURTHER CLARIFICATION OF THE
INTENTIONS OF THE CLAIMANT, SERVED TO MAKE REMOTE THE ISSUE WHICH WAS
SOUGHT TO BE PRESENTED TO THE COURT.  CERTAINLY THE APPELLANTS HAVE
STATED IN THEIR PLEADINGS FULLY AND UNEQUIVOCALLY WHAT IT IS THAT THEY
INTEND TO DO; NO CLARIFYING OR RESOLVING CONTINGENCY STANDS IN THEIR
WAY BEFORE THEY MAY EMBARK ON THAT CONDUCT.  THUS THERE IS NO
CIRCUMSTANCE BESIDES THAT OF DETECTION OR PROSECUTION TO MAKE REMOTE
THE PARTICULAR CONTROVERSY.  AND IT IS CLEAR BEYOND CAVIL THAT THE MERE
FACT THAT A CONTROVERSY SUCH AS THIS IS RENDERED STILL MORE UNAVOIDABLE
BY AN ACTUAL PROSECUTION, IS NOT ALONE SUFFICIENT TO MAKE THE CASE TOO
REMOTE, NOT IDEALLY ENOUGH "RIPE" FOR ADJUDICATION, AT THE PRIOR STAGE
OF ANTICIPATORY RELIEF. 

MOREOVER, IT FOLLOWS FROM WHAT HAS ALREADY BEEN SAID THAT THERE IS NO
SUCH WANT OF RIPENESS AS WAS PRESENTED IN RESCUE ARMY V. MUNICIPAL
COURT, 331 U.S. 549, OR IN OUR RECENT DECISIONS DISMISSING THE APPEALS
IN ATLANTA NEWSPAPERS V. GRIMES, 364 U.S. 290, AND UNITED STATES V.
FRUEHAUF, 365 U.S. 146, WHERE THE RECORDS PRESENTED FOR ADJUDICATION A
CONTROVERSY SO ARTIFICIALLY TRUNCATED AS TO MAKE THE CASES NOT
SUSCEPTIBLE TO INTELLIGENT DECISION.  I CANNOT SEE WHAT FURTHER
ELABORATION IS REQUIRED TO ENABLE US TO DECIDE THE APPELLANTS' CLAIMS,
AND INDEED NEITHER THE PLURALITY OPINION NOR THE CONCURRING OPINION -
NOTWITHSTANDING THE LATTER'S CHARACTERIZATION OF THIS RECORD AS
"SKIMPY" - SUGGESTS WHAT MORE GRIST IS NEEDED BEFORE THE JUDICIAL MILL
COULD TURN. 

THIRD:  THIS IS NOT A FEIGNED, HYPOTHETICAL, FRIENDLY OR COLORABLE
SUIT SUCH AS DISCLOSES "A WANT OF A TRULY ADVERSARY CONTEST.  CLEARLY
THESE CASES ARE NOT ANALOGOUS TO WOOD-PAPER CO. V. HEFT, 8 WALL.  333,
OR SOUTH SPRING HILL GOLD MINING CO. V. AMADOR MEDEAN GOLD MINING CO.,
145 U.S. 300, WHERE PRIOR TO CONSIDERATION THE CONTROVERSY IN EFFECT
BECAME MOOT BY THE MERGER OF THE TWO CONTESTING INTERESTS.  NOR IS
THERE ANY QUESTION OF COLLUSION AS IN LORD V. VEAZIE, 8 HOW.  251, OR
IN UNITED STATES V. JOHNSON, 319 U.S. 302.  AND THERE IS NOTHING TO
SUGGEST THAT THE PARTIES BY THEIR CONDUCT OF THIS LITIGATION HAVE
COOPERATED TO FORCE AN ADJUDICATION OF A CONSTITUTIONAL ISSUE WHICH -
WERE THE PARTIES INTERESTED SOLELY IN WINNING THEIR CASES RATHER THAN
OBTAINING A CONSTITUTIONAL DECISION - MIGHT NOT ARISE IN AN ARM'S
LENGTH CONTESTED PROCEEDING.  SUCH WAS THE SITUATION IN CHICAGO & GRAND
TRUNK R. CO. V. WELLMAN, 143 U.S. 339, WHERE THE PARTIES SOUGHT A
RULING AS TO WHETHER A PARTICULAR PASSENGER RATE WAS UNCONSTITUTIONALLY
CONFISCATORY, HAVING STIPULATED ALL THE DEBATABLE AND CONTINGENT FACTS
WHICH OTHERWISE MIGHT HAVE RENDERED A CONSTITUTIONAL DECISION
UNNECESSARY. 

IN THE PRESENT APPEALS NO MORE IS ALLEGED OR CONCEDED THAN IS
CONSISTENT WITH UNDISPUTED FACTS AND WITH ORDINARY PRACTICE IN DECIDING
A CASE FOR ANTICIPATORY RELIEF ON DEMURRER.  I THINK IT IS
UNJUSTIFIABLY STRETCHING THINGS TO ASSUME THAT APPELLANTS ARE NOT
DETERRED BY THE THREAT OF PROSECUTION FROM ENGAGING IN THE CONDUCT IN
WHICH THEY ASSERT A RIGHT TO ENGAGE, OR TO ASSUME THAT APPELLEE'S
DEMURRER TO THE PROPOSITION THAT HE ASSERTS THE RIGHT TO ENFORCE THE
STATUTE AGAINST APPELLANTS AT ANY TIME HE CHOOSES IS ANYTHING BUT A
CANDID ONE. 

INDEED, AS WILL BE DEVELOPED BELOW, I THINK BOTH THE PLURALITY AND
CONCURRING OPINIONS CONFUSE ON THIS SCORE THE PREDICTIVE LIKELIHOOD
THAT, HAD THEY NOT BROUGHT THEMSELVES TO APPELLEE'S ATTENTION, HE WOULD
NOT ENFORCE THE STATUTE AGAINST THEM, WITH SOME ENTIRELY SUPPOSITIOUS
"TACIT AGREEMENT" NOT TO PROSECUTE, THEREBY IGNORING THE PROSECUTOR'S
CLAIM, ASSERTED IN THESE VERY PROCEEDINGS, OF A RIGHT, AT HIS UNBOUNDED
PROSECUTORIAL DISCRETION, TO ENFORCE THE STATUTE. 

FOURTH:  THE DOCTRINE OF THE CASES DEALING WITH A LITIGANT'S LACK OF
STANDING TO RAISE A CONSTITUTIONAL CLAIM IS SAID TO JUSTIFY THE
DISMISSAL OF THESE APPEALS.  THE PRECEDENTS PUT FORWARD AS EXAMPLES OF
THIS DOCTRINE, SEE THE PLURALITY OPINION, NOTE 5, AS WELL AS CASES SUCH
AS FROTHINGHAM V. MELLON AND MASSACHUSETTS V. MELLON, 262 U.S. 447, AND
TEXAS V. INTERSTATE COMMERCE COMM'N, 258 U.S. 158, DO INDEED STAND FOR
THE PROPOSITION THAT A LEGAL CLAIM WILL NOT BE CONSIDERED AT THE
INSTANCE OF ONE WHO HAS NO REAL AND CONCRETE INTEREST IN ITS
VINDICATION.  THIS IS WELL IN ACCORD WITH THE GROUNDS FOR DECLINING
JURISDICTION SUGGESTED ABOVE.  BUT THIS DOCTRINE IN TURN NEEDS FURTHER
PARTICULARIZATION LEST IT BECOME A CATCHALL FOR AN UNARTICULATED
DISCRETION ON THE PART OF THIS COURT TO DECLINE TO ADJUDICATE APPEALS
INVOLVING CONSTITUTIONAL ISSUES. 

THERE IS NO QUESTION BUT THAT APPELLANTS HERE ARE ASSERTING RIGHTS
WHICH ARE PECULIARLY THIER OWN, AND WHICH, IF THEY ARE TO BE RAISED AT
ALL, MAY BE RAISED MOST APPROPRIATELY BY THEM.  CF. TILESTON V. ULLMAN,
318 U.S. 44; TEXAS V. INTERSTATE COMMERCE COMM'N, SUPRA; YAZOO &
MISSISSIPPI VALLEY R. CO. V. JACKSON VINEGAR CO., 226 U.S. 217;
ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 341 (CONCURRING
OPINION).  NOR DO I UNDERSTAND THE ARGUMENT TO BE THAT THIS IS THE SORT
OF CLAIM WHICH IS TOO REMOTE EVER TO BE PRESSED BY ANYONE, BECAUSE NO
ONE IS EVER SUFFICIENTLY INVOLVED.  CF. MASSACHUSETTS V. MELLON,
FROTHINGHAM V. MELLON, SUPRA.  THUS, IN TRUTH, IT IS NOT THE PARTIES
PRESSING THIS CLAIM BUT THE OCCASION CHOSEN FOR PRESSING IT WHICH IS
OBJECTED TO.  BUT AS HAS BEEN SHOWN THE FACT THAT IT IS ANTICIPATORY
RELIEF WHICH IS ASKED CANNOT OF ITSELF MAKE THE OCCASION
OBJECTIONABLE. 

WE ARE BROUGHT, THEN, TO THE PRECISE FAILING IN THESE PROCEEDINGS
WHICH IS SAID TO JUSTIFY REFUSAL TO EXERCISE OUR MANDATORY APPELLATE
JURISDICTION:  THAT THERE HAS BEEN BUT ONE RECORDED CONNECTICUT CASE
DEALING WITH A PROSECUTION UNDER THE STATUTE.  (FN4)  THE SIGNIFICANCE
OF THIS LACK OF RECORDED EVIDENCE OF PROSECUTIONS IS SAID TO MAKE THE
PRESENTATION OF APPELLANTS' RIGHTS TOO REMOTE, TOO CONTINGENT, TOO
HYPOTHETICAL FOR ADJUDICATION IN THE LIGHT OF THE POLICIES ALREADY
CONSIDERED.  SEE PP. 526-530, SUPRA.  IN MY VIEW IT IS ONLY AS A RESULT
OF MISCONCEPTIONS BOTH ABOUT THE PURPORT OF THE RECORD BEFORE US AND
ABOUT THE NATURE OF THE RIGHTS APPELLANTS PUT FORWARD THAT THIS
CONCLUSION CAN BE REACHED. 

AS FAR AS THE RECORD IS CONCERNED, I THINK IT IS PURE CONJECTURE, AND
INDEED CONJECTURE WHICH TO ME SEEMS CONTRARY TO REALITIES, THAT AN OPEN
VIOLATION OF THE STATUTE BY A DOCTOR (OR MORE OBVIOUSLY STILL BY A
BIRTH-CONTROL CLINIC) WOULD NOT RESULT IN A SUBSTANTIAL THREAT OF
PROSECUTION.  CRUCIAL TO THE OPPOSITE CONCLUSION IS THE DESCRIPTION OF
THE 1940 PROSECUTION INSTITUTED IN STATE V. NELSON, 126 CONN. 412, 11
A.2D 856, AS A "TEST CASE" WHICH, AS IT IS VIEWED, SCARCELY EVEN
PUNCTUATES THE UNIFORM STATE PRACTICE OF NONENFORCEMENT OF THIS
STATUTE.  I READ THE HISTORY OF CONNECTICUT ENFORCEMENT IN A VERY
DIFFERENT LIGHT.  THE NELSON CASE, AS APPEARS FROM THE STATE COURT'S
OPINION, WAS A PROSECUTION OF TWO DOCTORS AND A NURSE FOR AIDING AND
ABETTING VIOLATIONS OF THIS STATUTE BY MARRIED WOMEN IN PRESCRIBING AND
ADVISING THE USE OF CONTRACEPTIVE MATERIALS BY THEM.  IT IS TRUE THAT
THERE IS EVIDENCE OF A CUSTOMARY UNWILLINGNESS TO ENFORCE THE STATUTE
PRIOR TO NELSON, FOR IN THAT CASE THE PROSECUTOR STATED TO THE TRIAL
COURT IN A LATER MOTION TO DISCONTINUE THE PROSECUTIONS THAT "WHEN THIS
WATERBURY CLINIC OPERATED BY THE DEFENDANTS WAS OPENED THERE WERE IN
OPEN OPERATION ELSEWHERE IN THE STATE AT LEAST EIGHT OTHER
CONTRACEPTIVE CLINICS WHICH HAD BEEN IN EXISTENCE FOR A LONG PERIOD OF
TIME AND NO QUESTIONS AS TO THEIR RIGHT TO OPERATE HAD BEEN RAISED  ...
."  (FN5) 

WHAT MUST ALSO BE NOTED IS THAT THE PROSECUTOR FOLLOWED THIS
STATEMENT WITH AN EXPLANATION THAT THE PRIMARY PURPOSE OF THE
PROSECUTION WAS TO PROVIDE CLEAR WARNING TO ALL THOSE WHO, LIKE NELSON,
MIGHT RELY ON THIS PRACTICE OF NONENFORCEMENT.  HE STATED THAT THE
PURPOSE OF THE PROSECUTION WAS: 

"THE ESTABLISHMENT OF THE CONSTITUTIONAL VALIDITY AND EFFICACY OF THE
STATUTES UNDER WHICH THESE ACCUSED ARE INFORMED AGAINST.  HENCEFORTH
ANY PERSON, WHETHER A PHYSICIAN OR LAYMAN, WHO VIOLATES THE PROVISIONS
OF THESE STATUTES, MUST EXPECT TO BE PROSECUTED AND PUNISHED IN
ACCORDANCE WITH THE LITERAL PROVISIONS OF THE LAW."  (FN6) 

THUS THE RESPECT IN WHICH NELSON WAS A TEST CASE IS ONLY THAT IT WAS
BROUGHT FOR THE PURPOSE OF MAKING ENTIRELY CLEAR THE STATE'S POWER AND
WILLINGNESS TO ENFORCE AGAINST "ANY PERSON, WHETHER A PHYSICIAN OR
LAYMAN", THE STATUTE AND TO ELIMINATE FROM FUTURE CASES THE VERY DOUBT
ABOUT THE EXISTENCE OF THESE ELEMENTS WHICH HAD RESULTED IN EIGHT OPEN
BIRTH-CONTROL CLINICS, AND WHICH WOULD HAVE MADE UNFAIR THE CONVICTION
OF NELSON. 

THE PLURALITY OPINION NOW FINDS, AND THE CONCURRING OPINION MUST
ASSUME, THAT THE ONLY EXPLANATION OF THE ABSENCE OF RECORDED
PROSECUTIONS SUBSEQUENT TO THE NELSON CASE IS THAT CONNECTICUT HAS
RENOUNCED THAT INTENTION TO PROSECUTE AND PUNISH "ANY PERSON   ...  IN
ACCORDANCE WITH THE LITERAL PROVISIONS OF THE LAW" WHICH IT ANNOUNCED
IN NELSON.  BUT IF RENUNCIATION OF THE PURPOSES OF THE NELSON
PROSECUTION IS CONSISTENT WITH A LACK OF SUBSEQUENT PROSECUTIONS,
SUCCESS OF THAT PURPOSE IS NO LESS CONSISTENT WITH THIS LACK.  I FIND
IT DIFFICULT TO BELIEVE THAT DOCTORS GENERALLY - AND NOT JUST THOSE
OPERATING SPECIALIZED CLINICS - WOULD CONTINUE OPENLY TO DISSEMINATE
ADVICE ABOUT CONTRACEPTIVES AFTER NELSON IN RELIANCE ON THE STATE'S
SUPPOSED UNWILLINGNESS TO PROSECUTE, OR TO CONSIDER THAT HIGH-MINDED
MEMBERS OF THE PROFESSION WOULD IN CONSEQUENCE OF SUCH INACTION DEEM
THEMSELVES WARRANTED IN DISRESPECTING THIS LAW SO LONG AS IT IS ON THE
BOOKS.  NOR CAN I REGARD AS "CHIMERICAL" THE FEAR OF ENFORCEMENT OF
THESE PROVISIONS THAT SEEMS TO HAVE CAUSED THE DISAPPEARANCE OF AT
LEAST NINE BIRTH-CONTROL CLINICS.  (FN7)  IN SHORT, I FEAR THAT THE
COURT HAS INDULGED IN A BIT OF SLEIGHT OF HAND TO BE RID OF THIS CASE. 
IT HAS TREATED THE SIGNIFICANCE OF THE ABSENCE OF PROSECUTIONS DURING
THE TWENTY YEARS SINCE NELSON AS IDENTICAL WITH THAT OF THE ABSENCE OF
PROSECUTIONS DURING THE YEARS BEFORE NELSON.  IT HAS IGNORED THE FACT
THAT THE VERY PURPOSE OF THE NELSON PROSECUTION WAS TO CHANGE DEFIANCE
INTO COMPLIANCE.  IT HAS IGNORED THE VERY POSSIBILITY THAT THIS PURPOSE
MAY HAVE BEEN SUCCESSFUL.  (FN8)  THE RESULT IS TO POSTULATE A SECURITY
FROM PROSECUTION FOR OPEN DEFIANCE OF THE STATUTE WHICH I DO NOT
BELIEVE THE RECORD SUPPORTS.  (FN9) 

THESE CONSIDERATIONS ALONE SERVE TO BRING APPELLANTS SO SQUARELY
WITHIN THE RULE OF PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, AND
TRUAX V. RAICH, 239 U.S. 33, THAT FURTHER DEMONSTRATION WOULD BE
POINTLESS. 

BUT EVEN IF DR. BUXTON WERE NOT IN THE LITIGATION AND APPELLANTS THE
POES AND DOE WERE SEEKING SIMPLY TO USE CONTRACEPTIVES WITHOUT ANY NEED
OF CONSULTING A PHYSICIAN BEFOREHAND - WHICH IS NOT THE CASE WE HAVE,
ALTHOUGH IT IS THE CASE WHICH THE PLURALITY OPINION OF THE COURT IS
PRIMARILY CONCERNED TO DISCUSS - EVEN THEN I THINK THAT IT MISCONCEIVES
THE CONCEPT OF JUSTICIABILITY AND THE NATURE OF THESE APPELLANTS'
RIGHTS TO SAY THAT THE FAILURE OF THE STATE TO CARRY THROUGH ANY
CRIMINAL PROSECUTION REQUIRES DISMISSAL OF THEIR APPEALS. 

THE COURT'S DISPOSITION ASSUMES THAT TO DECIDE THE CASE NOW, IN THE
ABSENCE OF ANY CONSUMMATED PROSECUTIONS, IS UNWISE BECAUSE IT FORCES A
DIFFICULT DECISION IN ADVANCE OF ANY EXIGENT NECESSITY THEREFOR.  OF
COURSE IT IS ABUNDANTLY CLEAR THAT THIS REQUISITE NECESSITY CAN EXIST
PRIOR TO ANY ACTUAL PROSECUTION, FOR THAT IS THE THEORY OF ANTICIPATORY
RELIEF, AND IS BY NOW FAMILIAR LAW.  WHAT MUST BE RELIED ON, THEREFORE,
IS THAT THE HISTORICAL ABSENCE OF PROSECUTIONS IN SOME WAY LEAVES THESE
APPELLANTS FREE TO VIOLATE THE STATUTE WITHOUT FEAR OF PROSECUTION,
WHETHER OR NOT THE LAW IS CONSTITUTIONAL, AND THUS ABSOLVES US FROM THE
DUTY OF DECIDING IF IT IS.  DESPITE THE SUGGESTION OF A "TOUGHER AND
TRUER LAW" OF IMMUNITY FROM CRIMINAL PROSECUTION AND DESPITE
SPECULATION AS TO A "TACIT AGREEMENT" THAT THIS LAW WILL NOT BE
ENFORCED, THERE IS, OF COURSE, NO SUGGESTION OF AN ESTOPPEL AGAINST THE
STATE IF IT SHOULD ATTEMPT TO PROSECUTE APPELLANTS.  NEITHER THE
PLURALITY NOR THE CONCURRING OPINION SUGGESTS THAT APPELLANTS HAVE SOME
LEGALLY COGNIZABLE RIGHT NOT TO BE PROSECUTED IF THE STATUTE IS
CONSTITUTIONAL.  WHAT IS MEANT IS SIMPLY THAT THE APPELLANTS ARE MORE
OR LESS FREE TO ACT WITHOUT FEAR OF PROSECUTION BECAUSE THE PROSECUTING
AUTHORITIES OF THE STATE, IN THEIR DISCRETION AND AT THEIR WHIM, ARE,
AS A MATTER OF PREDICTION, UNLIKELY TO DECIDE TO PROSECUTE. 

HERE IS THE CORE OF MY DISAGREEMENT WITH THE PRESENT DISPOSITION.  AS
I WILL DEVELOP LATER IN THIS OPINION, THE MOST SUBSTANTIAL CLAIM WHICH
THESE MARRIED PERSONS PRESS IS THEIR RIGHT TO ENJOY THE PRIVACY OF
THEIR MARITAL RELATIONS FREE OF THE ENQUIRY OF THE CRIMINAL LAW,
WHETHER IT BE IN A PROSECUTION OF THEM OR OF A DOCTOR WHOM THEY HAVE
CONSULTED.  AND I CANNOT AGREE THAT THEIR ENJOYMENT OF THIS PRIVACY IS
NOT SUBSTANTIALLY IMPINGED UPON, WHEN THEY ARE TOLD THAT IF THEY USE
CONTRACEPTIVES, INDEED WHETHER THEY DO SO OR NOT, THE ONLY THING WHICH
STANDS BETWEEN THEM AND BEING FORCED TO RENDER CRIMINAL ACCOUNT OF
THEIR MARITAL PRIVACY IS THE WHIM OF THE PROSECUTOR.  (FN10)
CONNECTICUT'S HIGHEST COURT HAS TOLD US IN THE CLEAREST TERMS THAT,
GIVEN PROOF, THE PROSECUTOR WILL SUCCEED IF HE DECIDES TO BRING A
PROCEEDING AGAINST ONE OF THE APPELLANTS FOR TAKING THE PRECISE ACTIONS
APPELLANTS HAVE ANNOUNCED THEY INTEND TO TAKE.  THE STATE COURT DOES
NOT AGREE THAT THERE HAS COME INTO PLAY A "TOUGHER AND TRUER LAW THAN
THE DEAD WORDS OF THE WRITTEN TEXT," AND IN THE LIGHT OF TWELVE
UNSUCCESSFUL ATTEMPTS SINCE 1943 TO CHANGE THIS LEGISLATION, POE V.
ULLMAN, 147 CONN. 48, 56, 156 A.2D 508, 513, N. 2, THIS POSITION IS NOT
DIFFICULT TO UNDERSTAND.  PROSECUTION AND CONVICTION FOR THE CLEARLY
SPELLED-OUT ACTIONS THE APPELLANTS WISH TO TAKE IS NOT MADE UNLIKELY BY
ANY FORTUITOUS FACTOR OUTSIDE THE CONTROL OF THE PARTIES, NOR IS IT
MADE UNCERTAIN BY POSSIBLE VARIATIONS IN THE ACTIONS APPELLANTS
ACTUALLY TAKE FROM THOSE THE STATE COURTS HAVE ALREADY PASSED UPON. 
ALL THAT STANDS BETWEEN THE APPELLANTS AND JAIL IS THE LEGALLY
UNFETTERED WHIM OF THE PROSECUTOR AND THE CONSTITUTIONAL ISSUE THIS
COURT TODAY REFUSES TO DECIDE. 

IF WE REVERT AGAIN TO THE REASONS UNDERLYING OUR RELUCTANCE TO
EXERCISE A JURISDICTION WHICH TECHNICALLY WE POSSESS, AND THE CONCRETE
EXPRESSION OF THOSE UNDERLYING REASONS IN OUR CASES, SEE PP. 526-531,
SUPRA, THEN I THINK IT MUST BECOME CLEAR THAT THERE IS NO JUSTIFICATION
FOR FAILING TO DECIDE THESE MARRIED PERSONS' APPEALS.  THE CONTROVERSY
AWAITS NOTHING BUT AN ACTUAL PROSECUTION, AND, AS WILL BE SHOWN, THE
SUBSTANTIAL DAMAGE AGAINST WHICH THESE APPELLANTS, MRS. DOE AND THE
POES, ARE ENTITLED TO PROTECTION WILL BE ACCOMPLISHED BY SUCH A
PROSECUTION, WHATEVER ITS OUTCOME IN THE STATE COURTS OR HERE.  BY THE
PRESENT DECISION, ALTHOUGH AS A GENERAL MATTER THE PARTIES WOULD BE
ENTITLED TO OUR REVIEW IN AN ANTICIPATORY PROCEEDING WHICH THE STATE
ALLOWED TO BE INSTITUTED IN ITS COURTS, THESE APPELLANTS ARE MADE TO
AWAIT ACTUAL PROSECUTION BEFORE WE WILL HEAR THEM.  INDEED IT APPEARS
THAT WHEREAS APPELLANTS WOULD SURELY HAVE BEEN ENTITLED TO REVIEW WERE
THIS A NEW STATUTE, SEE HARRISON V. N.A.A.C.P., SUPRA, THE STATE HERE
IS ENABLED TO MAINTAIN AT LEAST SOME SUBSTANTIAL MEASURE OF COMPLIANCE
WITH THIS STATUTE AND STILL OBVIATE ANY REVIEW IN THIS COURT, BY THE
DEVICE OF PURELY DISCRETIONARY PROSECUTORIAL INACTIVITY.  IT SEEMS TO
ME TO DESTROY THE WHOLE PURPOSE OF ANTICIPATORY RELIEF TO CONSIDER THE
PROSECUTOR'S DISCRETION, ONCE ALL LEGAL AND ADMINISTRATIVE CHANNELS
HAVE BEEN CLEARED, AS IN ANY WAY ANALOGOUS TO THOSE OTHER CONTINGENCIES
WHICH MAKE REMOTE A CONTROVERSY PRESENTING CONSTITUTIONAL CLAIMS. 

IN THIS LIGHT IT IS NOT SURPRISING THAT THE COURT'S POSITION IS
WITHOUT SUPPORT IN THE PRECEDENTS.   (FN11)  INDEED IT SEEMS TO ME THAT
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, PROVIDES VERY CLEAR
AUTHORITY CONTRARY TO THE POSITION OF THE COURT IN THIS CASE, FOR THERE
A COURT WHICH INCLUDED JUSTICES HOLMES, BRANDEIS, AND STONE REJECTED A
CLAIM OF PREMATURENESS AND THEN PASSED UPON AND HELD UNCONSTITUTIONAL A
STATE STATUTE WHOSE SANCTIONS WERE NOT EVEN TO BECOME EFFECTIVE FOR
MORE THAN SEVENTEEN MONTHS AFTER THE TIME THE CASE WAS ARGUED TO THIS
COURT.  THE COURT FOUND ALLEGATIONS OF PRESENT LOSS OF BUSINESS, CAUSED
BY THE THREAT OF THE STATUTE'S FUTURE ENFORCEMENT AGAINST THE SOCIETY'S
CLIENTELE, SUFFICIENT TO MAKE THE INJURY TO THE SOCIETY "PRESENT AND
VERY REAL."  268 U.S., AT 536.  I CANNOT REGARD AS LESS PRESENT, OR
LESS REAL, THE TENDENCY TO DISCOURAGE THE EXERCISE OF THE LIBERTIES OF
THESE APPELLANTS, CAUSED BY RELUCTANCE TO SUBMIT THEIR FREEDOMS FROM
PROSECUTION AND CONVICTION TO THE DISCRETION OF THE CONNECTICUT
PROSECUTING AUTHORITIES.  I THEREFORE THINK IT INCUMBENT ON US TO
CONSIDER THE MERITS OF APPELLANTS' CONSTITUTIONAL CLAIMS. 

                    PART TWO. 

         CONSTITUTIONALITY. 

I CONSIDER THAT THIS CONNECTICUT LEGISLATION, AS CONSTRUED TO APPLY
TO THESE APPELLANTS, VIOLATES THE FOURTEENTH AMENDMENT.  I BELIEVE THAT
A STATUTE MAKING IT A CRIMINAL OFFENSE FOR MARRIED COUPLES TO USE
CONTRACEPTIVES IS AN INTOLERABLE AND UNJUSTIFIABLE INVASION OF PRIVACY
IN THE CONDUCT OF THE MOST INTIMATE CONCERNS OF AN INDIVIDUAL'S
PERSONAL LIFE.  I REACH THIS CONCLUSION, EVEN THOUGH I FIND IT
DIFFICULT AND UNNECESSARY AT THIS JUNCTURE TO ACCEPT APPELLANTS' OTHER
ARGUMENT THAT THE JUDGMENT OF POLICY BEHIND THE STATUTE, SO APPLIED, IS
SO ARBITRARY AND UNREASONABLE AS TO RENDER THE ENACTMENT INVALID FOR
THAT REASON ALONE.  SINCE BOTH THE CONTENTIONS DRAW THEIR BASIS FROM NO
EXPLICIT LANGUAGE OF THE CONSTITUTION, AND HAVE YET TO FIND EXPRESSION
IN ANY DECISION OF THIS COURT, I FEEL IT DESIRABLE AT THE OUTSET TO
STATE THE FRAMEWORK OF CONSTITUTIONAL PRINCIPLES IN WHICH I THINK THE
ISSUE MUST BE JUDGED. 

                                              I. 

IN REVIEWING STATE LEGISLATION, WHETHER CONSIDERED TO BE IN THE
EXERCISE OF THE STATE'S POLICE POWERS, OR IN PROVISION FOR THE HEALTH,
SAFETY, MORALS OR WELFARE OF ITS PEOPLE, IT IS CLEAR THAT WHAT IS
CONCERNED ARE "THE POWERS OF GOVERNMENT INHERENT IN EVERY
SOVEREIGNTY."  THE LICENSE CASES, 5 HOW.  504, 583.  ONLY TO THE EXTENT
THAT THE CONSTITUTION SO REQUIRES MAY THIS COURT INTERFERE WITH THE
EXERCISE OF THIS PLENARY POWER OF GOVERNMENT.  BARRON V. MAYOR OF
BALTIMORE, 7 PET. 243.  BUT PRECISELY BECAUSE IT IS THE CONSTITUTION
ALONE WHICH WARRANTS JUDICIAL INTERFERENCE IN SOVEREIGN OPERATIONS OF
THE STATE, THE BASIS OF JUDGMENT AS TO THE CONSTITUTIONALITY OF STATE
ACTION MUST BE A RATIONAL ONE, APPROACHING THE TEXT WHICH IS THE ONLY
COMMISSION FOR OUR POWER NOT IN A LITERALISTIC WAY, AS IF WE HAD A TAX
STATUTE BEFORE US, BUT AS THE BASIC CHARTER OF OUR SOCIETY, SETTING OUT
IN SPARE BUT MEANINGFUL TERMS THE PRINCIPLES OF GOVERNMENT.  MCCULLOCH
V. MARYLAND, 4 WHEAT.  316.  BUT AS INESCAPABLE AS IS THE RATIONAL
PROCESS IN CONSTITUTIONAL ADJUDICATION IN GENERAL, NOWHERE IS IT MORE
SO THAN IN GIVING MEANING TO THE PROHIBITIONS OF THE FOURTEENTH
AMENDMENT AND, WHERE THE FEDERAL GOVERNMENT IS INVOLVED, THE FIFTH
AMENDMENT, AGAINST THE DEPRIVATION OF LIFE, LIBERTY OR PROPERTY WITHOUT
DUE PROCESS OF LAW. 

IT IS BUT A TRUISM TO SAY THAT THIS PROVISION OF BOTH AMENDMENTS IS
NOT SELF-EXPLANATORY.  AS TO THE FOURTEENTH, WHICH IS INVOLVED HERE,
THE HISTORY OF THE AMENDMENT ALSO SHEDS LITTLE LIGHT ON THE MEANING OF
THE PROVISION.  FAIRMAN, DOES THE FOURTEENTH AMENDMENT INCORPORATE THE
BILL OF RIGHTS, 2 STAN.  L. REV. 15.  IT IS IMPORTANT TO NOTE, HOWEVER,
THAT TWO VIEWS OF THE AMENDMENT HAVE NOT BEEN ACCEPTED BY THIS COURT AS
DELINEATING ITS SCOPE.  ONE VIEW, WHICH WAS ABLY AND INSISTENTLY ARGUED
IN RESPONSE TO WHAT WERE FELT TO BE ABUSES BY THIS COURT OF ITS
REVIEWING POWER, SOUGHT TO LIMIT THE PROVISION TO A GUARANTEE OF
PROCEDURAL FAIRNESS.  SEE DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 105;
BRANDEIS, J., IN WHITNEY V. CALIFORNIA, 274 U.S. 357, AT 373; WARREN,
THE NEW "LIBERTY" UNDER THE 14TH AMENDMENT, 39 HARV. L. REV. 431;
REEDER, THE DUE PROCESS CLAUSES AND "THE SUBSTANCE OF INDIVIDUAL
RIGHTS," 58 U. PA. L. REV. 191; SHATTUCK, THE TRUE MEANING OF THE TERM
"LIBERTY" IN THOSE CLAUSES IN THE FEDERAL AND STATE CONSTITUTIONS WHICH
PROTECT "LIFE, LIBERTY, AND PROPERTY," 4 HARV. L. REV. 365.  THE OTHER
VIEW WHICH HAS BEEN REJECTED WOULD HAVE IT THAT THE FOURTEENTH
AMENDMENT, WHETHER BY WAY OF THE PRIVILEGES AND IMMUNITIES CLAUSE OR
THE DUE PROCESS CLAUSE, APPLIED AGAINST THE STATES ONLY AND PRECISELY
THOSE RESTRAINTS WHICH HAD PRIOR TO THE AMENDMENT BEEN APPLICABLE
MERELY TO FEDERAL ACTION.  HOWEVER, "DUE PROCESS" IN THE CONSISTENT
VIEW OF THIS COURT HAS EVER BEEN A BROADER CONCEPT THAN THE FIRST VIEW
AND MORE FLEXIBLE THAN THE SECOND. 

WERE DUE PROCESS MERELY A PROCEDURAL SAFEGUARD IT WOULD FAIL TO REACH
THOSE SITUATIONS WHERE THE DEPRIVATION OF LIFE, LIBERTY OR PROPERTY WAS
ACCOMPLISHED BY LEGISLATION WHICH BY OPERATING IN THE FUTURE COULD,
GIVEN EVEN THE FAIREST POSSIBLE PROCEDURE IN APPLICATION TO
INDIVIDUALS, NEVERTHELESS DESTROY THE ENJOYMENT OF ALL THREE.  COMPARE,
E.G., SELECTIVE DRAFT LAW CASES, 245 U.S. 366; BUTLER V. PERRY, 240
U.S. 328; KOREMATSU V. UNITED STATES, 323 U.S. 214.  THUS THE
GUARANTIES OF DUE PROCESS, THOUGH HAVING THEIR ROOTS IN MAGNA CARTA'S
"PER LEGEM TERRAE" AND CONSIDERED AS PROCEDURAL SAFEGUARDS "AGAINST
EXECUTIVE USURPATION AND TYRANNY," HAVE IN THIS COUNTRY "BECOME
BULWARKS ALSO AGAINST ARBITRARY LEGISLATION."  HURTADO V. CALIFORNIA,
110 U.S. 516, AT 532. 

HOWEVER IT IS NOT THE PARTICULAR ENUMERATION OF RIGHTS IN THE FIRST
EIGHT AMENDMENTS WHICH SPELLS OUT THE REACH OF FOURTEENTH AMENDMENT DUE
PROCESS, BUT RATHER, AS WAS SUGGESTED IN ANOTHER CONTEXT LONG BEFORE
THE ADOPTION OF THAT AMENDMENT, THOSE CONCEPTS WHICH ARE CONSIDERED TO
EMBRACE THOSE RIGHTS "WHICH ARE  ...  FUNDAMENTAL; WHICH BELONG  ...
TO THE CITIZENS OF ALL FREE GOVERNMENTS," CORFIELD V. CORYELL, 4 WASH.
C.C. 371, 380, FOR "THE PURPOSES OF SECURING WHICH MEN ENTER INTO
SOCIETY," CALDER V. BULL, 3 DALL.  386, 388.  AGAIN AND AGAIN THIS
COURT HAS RESISTED THE NOTION THAT THE FOURTEENTH AMENDMENT IS NO MORE
THAN A SHORTHAND REFERENCE TO WHAT IS EXPLICITLY SET OUT ELSEWHERE IN
THE BILL OF RIGHTS.  SLAUGHTER-HOUSE CASES, 16 WALL.  36; WALKER V.
SAUVINET, 92 U.S. 90; HURTADO V. CALIFORNIA, 110 U.S. 516; PRESSER V.
ILLINOIS, 116 U.S. 252; IN RE KEMMLER, 136 U.S. 436; TWINING V. NEW
JERSEY, 211 U.S. 78; PALKO V. CONNECTICUT, 302 U.S. 319.  INDEED THE
FACT THAT AN IDENTICAL PROVISION LIMITING FEDERAL ACTION IS FOUND AMONG
THE FIRST EIGHT AMENDMENTS, APPLYING TO THE FEDERAL GOVERNMENT,
SUGGESTS THAT DUE PROCESS IS A DISCRETE CONCEPT WHICH SUBSISTS AS AN
INDEPENDENT GUARANTY OF LIBERTY AND PROCEDURAL FAIRNESS, MORE GENERAL
AND INCLUSIVE THAN THE SPECIFIC PROHIBITIONS.  SEE MORMON CHURCH V.
UNITED STATES, 136 U.S. 1; DOWNES V. BIDWELL, 182 U.S. 244; HAWAII V.
MANKICHI, 190 U.S. 197; BALZAC V. PORTO RICO, 258 U.S. 298; FARRINGTON
V. TOKUSHIGE, 273 U.S. 284; BOLLING V. SHARPE, 347 U.S. 497.    DUE
PROCESS HAS NOT BEEN REDUCED TO ANY FORMULA; ITS CONTENT CANNOT BE
DETERMINED BY REFERENCE TO ANY CODE.  THE BEST THAT CAN BE SAID IS THAT
THROUGH THE COURSE OF THIS COURT'S DECISIONS IT HAS REPRESENTED THE
BALANCE WHICH OUR NATION, BUILT UPON POSTULATES OF RESPECT FOR THE
LIBERTY OF THE INDIVIDUAL, HAS STRUCK BETWEEN THAT LIBERTY AND THE
DEMANDS OF ORGANIZED SOCIETY.  IF THE SUPPLYING OF CONTENT TO THIS
CONSTITUTIONAL CONCEPT HAS OF NECESSITY BEEN A RATIONAL PROCESS, IT
CERTAINLY HAS NOT BEEN ONE WHERE JUDGES HAVE FELT FREE TO ROAM WHERE
UNGUIDED SPECULATION MIGHT TAKE THEM.  THE BALANCE OF WHICH I SPEAK IS
THE BALANCE STRUCK BY THIS COUNTRY, HAVING REGARD TO WHAT HISTORY
TEACHES ARE THE TRADITIONS FROM WHICH IT DEVELOPED AS WELL AS THE
TRADITIONS FROM WHICH IT BROKE.  THAT TRADITION IS A LIVING THING.  A
DECISION OF THIS COURT WHICH RADICALLY DEPARTS FROM IT COULD NOT LONG
SURVIVE, WHILE A DECISION WHICH BUILDS ON WHAT HAS SURVIVED IS LIKELY
TO BE SOUND.  NO FORMULA COULD SERVE AS A SUBSTITUTE, IN THIS AREA, FOR
JUDGMENT AND RESTRAINT. 

IT IS THIS OUTLOOK WHICH HAS LED THE COURT CONTINUINGLY TO PERCEIVE
DISTINCTIONS IN THE IMPERATIVE CHARACTER OF CONSTITUTIONAL PROVISIONS,
SINCE THAT CHARACTER MUST BE DISCERNED FROM A PARTICULAR PROVISION'S
LARGER CONTEXT.  AND INASMUCH AS THIS CONTEXT IS ONE NOT OF WORDS, BUT
OF HISTORY AND PURPOSES, THE FULL SCOPE OF THE LIBERTY GUARANTEED BY
THE DUE PROCESS CLAUSE CANNOT BE FOUND IN OR LIMITED BY THE PRECISE
TERMS OF THE SPECIFIC GUARANTEES ELSEWHERE PROVIDED IN THE
CONSTITUTION.  THIS "LIBERTY" IS NOT A SERIES OF ISOLATED POINTS
PRICKED OUT IN TERMS OF THE TAKING OF PROPERTY; THE FREEDOM OF SPEECH,
PRESS, AND RELIGION; THE RIGHT TO KEEP AND BEAR ARMS; THE FREEDOM FROM
UNREASONABLE SEARCHES AND SEIZURES; AND SO ON.  IT IS A RATIONAL
CONTINUUM WHICH, BROADLY SPEAKING, INCLUDES A FREEDOM FROM ALL
SUBSTANTIAL ARBITRARY IMPOSITIONS AND PURPOSELESS RESTRAINTS, SEE
ALLGEYER V. LOUISIANA, 165 U.S. 578; HOLDEN V. HARDY, 169 U.S. 366;
BOOTH V. ILLINOS, 184 U.S. 425; NEBBIA V. NEW YORK, 291 U.S. 502;
SKINNER V. OKLAHOMA, 316 U.S. 535, 544 (CONCURRING OPINION); SCHWARE V.
BOARD OF BAR EXAMINERS, 353 U.S. 232, AND WHICH ALSO RECOGNIZES, WHAT A
REASONABLE AND SENSITIVE JUDGMENT MUST, THAT CERTAIN INTERESTS REQUIRE
PARTICULARLY CAREFUL SCRUTINY OF THE STATE NEEDS ASSERTED TO JUSTIFY
THEIR ABRIDGMENT.  CF. SKINNER V. OKLAHOMA, SUPRA; BOLLING V. SHARPE,
SUPRA. 

AS WAS SAID IN MEYER V. NEBRASKA, 262 U.S. 390, 399, "THIS COURT HAS
NOT ATTEMPTED TO DEFINE WITH EXACTNESS THE LIBERTY THUS GUARANTEED  ...
.  WITHOUT DOUBT, IT DENOTES NOT MERELY FREEDOM FROM BODILY RESTRAINT
...  ."  THUS, FOR INSTANCE, WHEN IN THAT CASE AND IN PIERCE V. SOCIETY
OF SISTERS, 268 U.S. 510, THE COURT STRUCK DOWN LAWS WHICH SOUGHT NOT
TO REQUIRE WHAT CHILDREN MUST LEARN IN SCHOOLS, BUT TO PRESCRIBE, IN
THE FIRST CASE, WHAT THEY MUST NOT LEARN, AND IN THE SECOND, WHERE THEY
MUST ACQUIRE THEIR LEARNING, I DO NOT THINK IT WAS WRONG TO PUT THOSE
DECISIONS ON "THE RIGHT OF THE INDIVIDUAL TO  ...  ESTABLISH A HOME AND
BRING UP CHILDREN,"  MEYER V. NEBRASKA, IBID., OR ON THE BASIS THAT
"THE FUNDAMENTAL THEORY OF LIBERTY UPON WHICH ALL GOVERNMENTS IN THIS
UNION REPOSE EXCLUDES ANY GENERAL POWER OF THE STATE TO STANDARDIZE ITS
CHILDREN BY FORCING THEM TO ACCEPT INSTRUCTION FROM PUBLIC TEACHERS
ONLY," PIERCE V. SOCIETY OF SISTERS, AT 535.  I CONSIDER THIS SO, EVEN
THOUGH TODAY THOSE DECISIONS WOULD PROBABLY HAVE GONE BY REFERENCE TO
THE CONCEPTS OF FREEDOM OF EXPRESSION AND CONSCIENCE ASSURED AGAINST
STATE ACTION BY THE FOURTEENTH AMENDMENT, CONCEPTS THAT ARE DERIVED
FROM THE EXPLICIT GUARANTEES OF THE FIRST AMENDMENT AGAINST FEDERAL
ENCROACHMENT UPON FREEDOM OF SPEECH AND BELIEF.  SEE WEST VIRGINIA
STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, AND 656 (DISSENTING
OPINION); PRICE V. MASSACHUSETTS, 321 U.S. 158, 166.  FOR IT IS THE
PURPOSES OF THOSE GUARANTEES AND NOT THEIR TEXT, THE REASONS FOR THEIR
STATEMENT BY THE FRAMERS AND NOT THE STATEMENT ITSELF, SEE PALKO V.
CONNECTICUT, 302 U.S. 319, 324-327; UNITED STATES V. CAROLENE PRODS.,
304 U.S. 144, 152-153, WHICH HAVE LED TO THEIR PRESENT STATUS IN THE
COMPENDIOUS NOTION OF "LIBERTY" EMBRACED IN THE FOURTEENTH AMENDMENT. 

EACH NEW CLAIM TO CONSTITUTIONAL PROTECTION MUST BE CONSIDERED
AGAINST A BACKGROUND OF CONSTITUTIONAL PURPOSES, AS THEY HAVE BEEN
RATIONALLY PERCEIVED AND HISTORICALLY DEVELOPED.  THOUGH WE EXERCISE
LIMITED AND SHARPLY RESTRAINED JUDGMENT, YET THERE IS NO "MECHANICAL
YARDSTICK," NO "MECHANICAL ANSWER."  THE DECISION OF AN APPARENTLY
NOVEL CLAIM MUST DEPEND ON GROUNDS WHICH FOLLOW CLOSELY ON WELL
ACCEPTED PRINCIPLES AND CRITERIA.  THE NEW DECISION MUST TAKE "ITS
PLACE IN RELATION TO WHAT WENT BEFORE AND FURTHER CUT A CHANNEL FOR
WHAT IS TO COME."  IRVINE V. CALIFORNIA, 347 U.S. 128, 147 (DISSENTING
OPINION).  THE MATTER WAS WELL PUT IN ROCHIN V. CALIFORNIA, 342 U.S.
165, 170-171: 

"THE VAGUE CONTOURS OF THE DUE PROCESS CLAUSE DO NOT LEAVE JUDGES AT
LARGE.  WE MAY NOT DRAW ON OUR MERELY PERSONAL AND PRIVATE NOTIONS AND
DISREGARD THE LIMITS THAT BIND JUDGES IN THEIR JUDICIAL FUNCTION.  EVEN
THOUGH THE CONCEPT OF DUE PROCESS OF LAW IS NOT FINAL AND FIXED, THESE
LIMITS ARE DERIVED FROM CONSIDERATIONS THAT ARE FUSED IN THE WHOLE
NATURE OF OUR JUDICIAL PROCESS  ...  . THESE ARE CONSIDERATIONS DEEPLY
ROOTED IN REASON AND IN THE COMPELLING TRADITIONS OF THE LEGAL
PROFESSION." 

ON THESE PREMISES I TURN TO THE PARTICULAR CONSTITUTIONAL CLAIM IN
THIS CASE. 

                                   II. 

APPELLANTS CONTEND THAT THE CONNECTICUT STATUTE DEPRIVES THEM, AS IT
UNQUESTIONABLY DOES, OF A SUBSTANTIAL MEASURE OF LIBERTY IN CARRYING ON
THE MOST INTIMATE OF ALL PERSONAL RELATIONSHIPS, AND THAT IT DOES SO
ARBITRARILY AND WITHOUT ANY RATIONAL, JUSTIFYING PURPOSE.  THE STATE,
ON THE OTHER HAND, ASSERTS THAT IT IS ACTING TO PROTECT THE MORAL
WELFARE OF ITS CITIZENRY, BOTH DIRECTLY, IN THAT IT CONSIDERS THE
PRACTICE OF CONTRACEPTION IMMORAL IN ITSELF, AND INSTRUMENTALLY, IN
THAT THE AVAILABILITY OF CONTRACEPTIVE MATERIALS TENDS TO MINIMIZE "THE
DISASTROUS CONSEQUENCE OF DISSOLUTE ACTION," THAT IS FORNICATION AND
ADULTERY. 

IT IS ARGUED BY APPELLANTS THAT THE JUDGMENT, IMPLICIT IN THIS
STATUTE - THAT THE USE OF CONTRACEPTIVES BY MARRIED COUPLES IS IMMORAL
IS AN IRRATIONAL ONE, THAT IN EFFECT IT SUBJECTS THEM IN A VERY
IMPORTANT MATTER TO THE ARBITRARY WHIM OF THE LEGISLATURE, AND THAT IT
DOES SO FOR NO GOOD PURPOSE.  WHERE, AS HERE, WE ARE DEALING WITH WHAT
MUST BE CONSIDERED "A BASIC LIBERTY," CF. SKINNER V. OKLAHOMA, SUPRA,
AT 541, "THERE ARE LIMITS TO THE EXTENT TO WHICH THE PRESUMPTION OF
CONSTITUTIONALITY CAN BE PRESSED," ID., AT 544 (CONCURRING OPINION),
AND THE MERE ASSERTION THAT THE ACTION OF THE STATE FINDS JUSTIFICATION
IN THE CONTROVERSIAL REALM OF MORALS CANNOT JUSTIFY ALONE ANY AND EVERY
RESTRICTION IT IMPOSES.  SEE ALBERTS V. CALIFORNIA, 354 U.S. 476. 

YET THE VERY INCLUSION OF THE CATEGORY OF MORALITY AMONG STATE
CONCERNS INDICATES THAT SOCIETY IS NOT LIMITED IN ITS OBJECTS ONLY TO
THE PHYSICAL WELL-BEING OF THE COMMUNITY, BUT HAS TRADITIONALLY
CONCERNED ITSELF WITH THE MORAL SOUNDNESS OF ITS PEOPLE AS WELL. 
INDEED TO ATTEMPT A LINE BETWEEN PUBLIC BEHAVIOR AND THAT WHICH IS
PURELY CONSENSUAL OR SOLITARY WOULD BE TO WITHDRAW FROM COMMUNITY
CONCERN A RANGE OF SUBJECTS WITH WHICH EVERY SOCIETY IN CIVILIZED TIMES
HAS FOUND IT NECESSARY TO DEAL.  THE LAWS REGARDING MARRIAGE WHICH
PROVIDE BOTH WHEN THE SEXUAL POWERS MAY BE USED AND THE LEGAL AND
SOCIETAL CONTEXT IN WHICH CHILDREN ARE BORN AND BROUGHT UP, AS WELL AS
LAWS FORBIDDING ADULTERY, FORNICATION AND HOMOSEXUAL PRACTICES WHICH
EXPRESS THE NEGATIVE OF THE PROPOSITION, CONFINING SEXUALITY TO LAWFUL
MARRIAGE, FORM A PATTERN SO DEEPLY PRESSED INTO THE SUBSTANCE OF OUR
SOCIAL LIFE THAT ANY CONSTITUTIONAL DOCTRINE IN THIS AREA MUST BUILD
UPON THAT BASIS.  COMPARE MCGOWAN V. MARYLAND, 366 U.S. 420. 

IT IS IN THIS AREA OF SEXUAL MORALITY, WHICH CONTAINS MANY
PROSCRIPTIONS OF CONSENSUAL BEHAVIOR HAVING LITTLE OR NO DIRECT IMPACT
ON OTHERS, THAT THE STATE OF CONNECTICUT HAS EXPRESSED ITS MORAL
JUDGMENT THAT ALL USE OF CONTRACEPTIVES IS IMPROPER.  APPELLANTS CITE
AN IMPRESSIVE LIST OF AUTHORITIES WHO, FROM A GREAT VARIETY OF POINTS
OF VIEW, COMMEND THE CONSIDERED USE OF CONTRACEPTIVES BY MARRIED
COUPLES.  WHAT THEY DO NOT EMPHASIZE IS THAT NOT TOO LONG AGO THE
CURRENT OF OPINION WAS VERY PROBABLY QUITE THE OPPOSITE, (FN12) AND
THAT EVEN TODAY THE ISSUE IS NOT FREE OF CONTROVERSY.  CERTAINLY,
CONNECTICUT'S JUDGMENT IS NO MORE DEMONSTRABLY CORRECT OR INCORRECT
THAN ARE THE VARIETIES OF JUDGMENT, EXPRESSED IN LAW, ON MARRIAGE AND
DIVORCE, ON ADULT CONSENSUAL HOMOSEXUALITY, ABORTION, AND
STERILIZATION, OR EUTHANASIA AND SUICIDE.  IF WE HAD A CASE BEFORE US
WHICH REQUIRED US TO DECIDE SIMPLY, AND IN ABSTRACTION, WHETHER THE
MORAL JUDGMENT IMPLICIT IN THE APPLICATION OF THE PRESENT STATUTE TO
MARRIED COUPLES WAS A SOUND ONE, THE VERY CONTROVERSIAL NATURE OF THESE
QUESTIONS WOULD, I THINK, REQUIRE US TO HESITATE LONG BEFORE CONCLUDING
THAT THE CONSTITUTION PRECLUDED CONNECTICUT FROM CHOOSING AS IT HAS
AMONG THESE VARIOUS VIEWS.  CF. ALBERTS V. CALIFORNIA, 354 U.S. 476,
500-503 (CONCURRING OPINION). 

BUT, AS MIGHT BE EXPECTED, WE ARE NOT PRESENTED SIMPLY WITH THIS
MORAL JUDGMENT TO BE PASSED ON AS AN ABSTRACT PROPOSITION.  THE SECULAR
STATE IS NOT AN EXAMINER OF CONSCIENCES: IT MUST OPERATE IN THE REALM
OF BEHAVIOR, OF OVERT ACTIONS, AND WHERE IT DOES SO OPERATE, NOT ONLY
THE UNDERLYING, MORAL PURPOSE OF ITS OPERATIONS, BUT ALSO THE CHOICE OF
MEANS BECOMES RELEVANT TO ANY CONSTITUTIONAL JUDGMENT ON WHAT IS DONE. 
THE MORAL PRESUPPOSITION ON WHICH APPELLANTS ASK US TO PASS JUDGMENT
COULD FORM THE BASIS OF A VARIETY OF LEGAL RULES AND ADMINISTRATIVE
CHOICES, EACH PRESENTING A DIFFERENT ISSUE FOR ADJUDICATION.  FOR
EXAMPLE, ONE PRACTICAL EXPRESSION OF THE MORAL VIEW PROPOUNDED HERE
MIGHT BE THE RULE THAT A MARRIAGE IN WHICH ONLY CONTRACEPTIVE RELATIONS
HAD TAKEN PLACE HAD NEVER BEEN CONSUMMATED AND COULD BE ANNULLED. 
COMPARE, E.G., 2 BOUSCAREN, CANON LAW DIGEST, 307-313.  AGAIN, THE USE
OF CONTRACEPTIVES MIGHT BE MADE A GROUND FOR DIVORCE, OR PERHAPS TAX
BENEFITS AND SUBSIDIES COULD BE PROVIDED FOR LARGE FAMILIES.  OTHER
EXAMPLES ALSO READILY SUGGEST THEMSELVES. 

                                             III. 

PRECISELY WHAT IS INVOLVED HERE IS THIS:  THE STATE IS ASSERTING THE
RIGHT TO ENFORCE ITS MORAL JUDGMENT BY INTRUDING UPON THE MOST INTIMATE
DETAILS OF THE MARITAL RELATION WITH THE FULL POWER OF THE CRIMINAL
LAW.  POTENTIALLY, THIS COULD ALLOW THE DEPLOYMENT OF ALL THE
INCIDENTAL MACHINERY OF THE CRIMINAL LAW, ARRESTS, SEARCHES AND
SEIZURES; INEVITABLY, IT MUST MEAN AT THE VERY LEAST THE LODGING OF
CRIMINAL CHARGES, A PUBLIC TRIAL, AND TESTIMONY AS TO THE CORPUS
DELICTI.  NOR COULD ANY IMAGINABLE ELABORATION OF PRESUMPTIONS,
TESTIMONIAL PRIVILEGES, OR OTHER SAFEGUARDS, ALLEVIATE THE NECESSITY
FOR TESTIMONY AS TO THE MODE AND MANNER OF THE MARRIED COUPLES' SEXUAL
RELATIONS, OR AT LEAST THE OPPORTUNITY FOR THE ACCUSED TO MAKE DENIAL
OF THE CHARGES.  IN SUM, THE STATUTE ALLOWS THE STATE TO ENQUIRE INTO,
PROVE AND PUNISH MARRIED PEOPLE FOR THE PRIVATE USE OF THEIR MARITAL
INTIMACY. 

THIS, THEN, IS THE PRECISE CHARACTER OF THE ENACTMENT WHOSE
CONSTITUTIONAL MEASURE WE MUST TAKE.  THE STATUTE MUST PASS A MORE
RIGOROUS CONSTITUTIONAL TEST THAN THAT GOING MERELY TO THE PLAUSIBILITY
OF ITS UNDERLYING RATIONALE.  SEE PP. 542-545, SUPRA.  THIS ENACTMENT
INVOLVES WHAT, BY COMMON UNDERSTANDING THROUGHOUT THE ENGLISH-SPEAKING
WORLD, MUST BE GRANTED TO BE A MOST FUNDAMENTAL ASPECT OF "LIBERTY,"
THE PRIVACY OF THE HOME IN ITS MOST BASIC SENSE, AND IT IS THIS WHICH
REQUIRES THAT THE STATUTE BE SUBJECTED TO "STRICT SCRUTINY."  SKINNER
V. OKLAHOMA, SUPRA, AT 541. 

THAT ASPECT OF LIBERTY WHICH EMBRACES THE CONCEPT OF THE PRIVACY OF
THE HOME RECEIVES EXPLICIT CONSTITUTIONAL PROTECTION AT TWO PLACES
ONLY.  THESE ARE THE THIRD AMENDMENT, RELATING TO THE QUARTERING OF
SOLDIERS, (FN13) AND THE FOURTH AMENDMENT, PROHIBITING UNREASONABLE
SEARCHES AND SEIZURES.  (FN14)  WHILE THESE AMENDMENTS REACH ONLY THE
FEDERAL GOVERNMENT, THIS COURT HAS HELD IN THE STRONGEST TERMS, AND
TODAY AGAIN CONFIRMS, THAT THE CONCEPT OF "PRIVACY" EMBODIED IN THE
FOURTH AMENDMENT IS PART OF THE "ORDERED LIBERTY" ASSURED AGAINST STATE
ACTION BY THE FOURTEENTH AMENDMENT.   SEE WOLF V. COLORADO, 338 U.S.
25; MAPP V. OHIO, POST, P. 643. 

IT IS CLEAR, OF COURSE, THAT THIS CONNECTICUT STATUTE DOES NOT INVADE
THE PRIVACY OF THE HOME IN THE USUAL SENSE, SINCE THE INVASION INVOLVED
HERE MAY, AND DOUBTLESS USUALLY WOULD, BE ACCOMPLISHED WITHOUT ANY
PHYSICAL INTRUSION WHATEVER INTO THE HOME.  WHAT THE STATUTE UNDERTAKES
TO DO, HOWEVER, IS TO CREATE A CRIME WHICH IS GROSSLY OFFENSIVE TO THIS
PRIVACY, WHILE THE CONSTITUTION REFERS ONLY TO METHODS OF FERRETING OUT
SUBSTANTIVE WRONGS, AND THE PROCEDURE IT REQUIRES PRESUPPOSES THAT
SUBSTANTIVE OFFENSES MAY BE COMMITTED AND SOUGHT OUT IN THE PRIVACY OF
THE HOME.  BUT SUCH AN ANALYSIS FORECLOSES ANY CLAIM TO CONSTITUTIONAL
PROTECTION AGAINST THIS FORM OF DEPRIVATION OF PRIVACY, ONLY IF DUE
PROCESS IN THIS RESPECT IS LIMITED TO WHAT IS EXPLICITLY PROVIDED IN
THE CONSTITUTION, DIVORCED FROM THE RATIONAL PURPOSES, HISTORICAL
ROOTS, AND SUBSEQUENT DEVELOPMENTS OF THE RELEVANT PROVISIONS. 

PERHAPS THE MOST COMPREHENSIVE STATEMENT OF THE PRINCIPLE OF
LIBERTY UNDERLYING THESE ASPECTS OF THE CONSTITUTION WAS GIVEN BY MR.
JUSTICE BRANDEIS, DISSENTING IN OLMSTEAD V. UNITED STATES, 277 U.S.
438, AT 478:    "THE PROTECTION GUARANTEED BY THE FOURTH AND FIFTH
AMENDMENTS IS MUCH BROADER IN SCOPE.  THE MAKERS OF OUR CONSTITUTION
UNDERTOOK TO SECURE CONDITIONS FAVORABLE TO THE PURSUIT OF HAPPINESS. 
THEY RECOGNIZED THE SIGNIFICANCE OF MAN'S SPIRITUAL NATURE, OF HIS
FEELINGS AND OF HIS INTELLECT.  THEY KNEW THAT ONLY A PART OF THE PAIN,
PLEASURE AND SATISFACTIONS OF LIFE ARE TO BE FOUND IN MATERIAL THINGS. 
THEY SOUGHT TO PROTECT AMERICANS IN THEIR BELIEFS, THEIR THOUGHTS,
THEIR EMOTIONS AND THEIR SENSATIONS.  THEY CONFERRED, AS AGAINST THE
GOVERNMENT, THE RIGHT TO BE LET ALONE - THE MOST COMPREHENSIVE OF
RIGHTS AND THE RIGHT MOST VALUED BY CIVILIZED MEN.  TO PROTECT THAT
RIGHT, EVERY UNJUSTIFIABLE INTRUSION BY THE GOVERNMENT UPON THE PRIVACY
OF THE INDIVIDUAL, WHATEVER THE MEANS EMPLOYED, MUST BE DEEMED A
VIOLATION OF THE FOURTH AMENDMENT  ...  ." 

I THINK THE SWEEP OF THE COURT'S DECISIONS, UNDER BOTH THE FOURTH AND
FOURTEENTH AMENDMENTS, AMPLY SHOWS THAT THE CONSTITUTION PROTECTS THE
PRIVACY OF THE HOME AGAINST ALL UNREASONABLE INTRUSION OF WHATEVER
CHARACTER.  "THESE PRINCIPLES  ...  AFFECT THE VERY ESSENCE OF
CONSTITUTIONAL LIBERTY AND SECURITY.  THEY REACH FARTHER THAN A
CONCRETE FORM OF THE CASE  ...  BEFORE THE COURT, WITH ITS ADVENTITIOUS
CIRCUMSTANCES; THEY APPLY TO ALL INVASIONS ON THE PART OF THE
GOVERNMENT AND ITS EMPLOYES OF THE SANCTITY OF A MAN'S HOME AND THE
PRIVACIES OF LIFE  ...  ."  BOYD V. UNITED STATES, 116 U.S. 616, 630. 
"THE SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY INTRUSION BY THE
POLICE - WHICH IS AT THE CORE OF THE FOURTH AMENDMENT - IS BASIC TO A
FREE SOCIETY."  WOLF V. COLORADO, SUPRA, AT 27.  IN ADDITION, SEE,
E.G., DAVIS V. UNITED STATES, 328 U.S. 582, 587; OKLAHOMA PRESS PUB.
CO. V. WALLING, 327 U.S. 186, 202-203; FRANK V. MARYLAND, 359 U.S. 360,
365-366; SILVERMAN V. UNITED STATES, 365 U.S. 505, 511. 

IT WOULD SURELY BE AN EXTREME INSTANCE OF SACRIFICING SUBSTANCE TO
FORM WERE IT TO BE HELD THAT THE CONSTITUTIONAL PRINCIPLE OF PRIVACY
AGAINST ARBITRARY OFFICIAL INTRUSION COMPREHENDS ONLY PHYSICAL
INVASIONS BY THE POLICE.  TO BE SURE, THE TIMES PRESENTED THE FRAMERS
WITH TWO PARTICULAR THREATS TO THAT PRINCIPLE, THE GENERAL WARRANT, SEE
BOYD V. UNITED STATES, SUPRA, AND THE QUARTERING OF SOLDIERS IN PRIVATE
HOMES.  BUT THOUGH "LEGISLATION, BOTH STATUTORY AND CONSTITUTIONAL, IS
ENACTED,  ...  FROM AN EXPERIENCE OF EVILS,  ...  ITS GENERAL LANGUAGE
SHOULD NOT, THEREFORE, BE NECESSARILY CONFINED TO THE FORM THAT EVIL
HAD THERETOFORE TAKEN  ...  .  A PRINCIPLE TO BE VITAL MUST BE CAPABLE
OF WIDER APPLICATION THAN THE MISCHIEF WHICH GAVE IT BIRTH."  WEEMS V.
UNITED STATES, 217 U.S. 349, 373. 

ALTHOUGH THE FORM OF INTRUSION HERE - THE ENACTMENT OF A SUBSTANTIVE
OFFENSE - DOES NOT, IN MY OPINION, PRECLUDE THE MAKING OF A CLAIM BASED
ON THE RIGHT OF PRIVACY EMBRACED IN THE "LIBERTY" OF THE DUE PROCESS
CLAUSE, IT MUST BE ACKNOWLEDGED THAT THERE IS ANOTHER SENSE IN WHICH IT
COULD BE ARGUED THAT THIS INTRUSION ON PRIVACY DIFFERS FROM WHAT THE
FOURTH AMENDMENT, AND THE SIMILAR CONCEPT OF THE FOURTEENTH, WERE
INTENDED TO PROTECT:  HERE WE HAVE NOT AN INTRUSION INTO THE HOME SO
MUCH AS ON THE LIFE WHICH CHARACTERISTICALLY HAS ITS PLACE IN THE
HOME.  BUT TO MY MIND SUCH A DISTINCTION IS SO INSUBSTANTIAL AS TO BE
CAPTIOUS: IF THE PHYSICAL CURTILAGE OF THE HOME IS PROTECTED, IT IS
SURELY AS A RESULT OF SOLICITUDE TO PROTECT THE PRIVACIES OF THE LIFE
WITHIN.  CERTAINLY THE SAFEGUARDING OF THE HOME DOES NOT FOLLOW MERELY
FROM THE SANCTITY OF PROPERTY RIGHTS.  THE HOME DERIVES ITS PRE
EMINENCE AS THE SEAT OF FAMILY LIFE.  AND THE INTEGRITY OF THAT LIFE IS
SOMETHING SO FUNDAMENTAL THAT IT HAS BEEN FOUND TO DRAW TO ITS
PROTECTION THE PRINCIPLES OF MORE THAN ONE EXPLICITLY GRANTED
CONSTITUTIONAL RIGHT.  THUS, MR. JUSTICE BRANDEIS, WRITING OF A STATUTE
WHICH MADE "IT PUNISHABLE TO TEACH PACIFISM IN ANY PLACE TO A SINGLE
PERSON  ...  NO MATTER WHAT THE RELATION OF THE PARTIES MAY BE," FOUND
SUCH A "STATUTE INVADES THE PRIVACY AND FREEDOM OF THE HOME.  FATHER
AND MOTHER MAY NOT FOLLOW THE PROMPTINGS OF RELIGIOUS BELIEF, OF
CONSCIENCE OR OF CONVICTION, AND TEACH SON OR DAUGHTER THE DOCTRINE OF
PACIFISM.  IF THEY DO ANY POLICE OFFICER MAY SUMMARILY ARREST THEM." 
GILBERT V. MINNESOTA, 254 U.S. 325, 335-336 (DISSENTING OPINION).  THIS
SAME PRINCIPLE IS EXPRESSED IN THE PIERCE AND MEYER CASES, SUPRA.
THESE DECISIONS, AS WAS SAID IN PRICE V. MASSACHUSETTS, 321 U.S. 158,
AT 166, "HAVE RESPECTED THE PRIVATE REALM OF FAMILY LIFE WHICH THE
STATE CANNOT ENTER." 

OF THIS WHOLE "PRIVATE REALM OF FAMILY LIFE" IT IS DIFFICULT TO
IMAGINE WHAT IS MORE PRIVATE OR MORE INTIMATE THAN A HUSBAND AND WIFE'S
MARITAL RELATIONS.  WE WOULD INDEED BE STRAINING AT A GNAT AND
SWALLOWING A CAMEL WERE WE TO SHOW CONCERN FOR THE NICETIES OF PROPERTY
LAW INVOLVED IN OUR RECENT DECISION, UNDER THE FOURTH AMENDMENT, IN
CHAPMAN V. UNITED STATES, 365 U.S. 610, AND YET FAIL AT LEAST TO SEE
ANY SUBSTANTIAL CLAIM HERE. 

OF COURSE, JUST AS THE REQUIREMENT OF A WARRANT IS NOT INFLEXIBLE IN
CARRYING OUT SEARCHES AND SEIZURES, SEE ABEL V. UNITED STATES, 362 U.S.
217; UNITED STATES V. RABINOWITZ, 339 U.S. 56, SO THERE ARE
COUNTERVAILING CONSIDERATIONS AT THIS MORE FUNDAMENTAL ASPECT OF THE
RIGHT INVOLVED.  "THE FAMILY  ...  IS NOT BEYOND REGULATION," PRINCE V.
MASSACHUSETTS, SUPRA, AND IT WOULD BE AN ABSURDITY TO SUGGEST EITHER
THAT OFFENSES MAY NOT BE COMMITTED IN THE BOSOM OF THE FAMILY OR THAT
THE HOME CAN BE MADE A SANCTUARY FOR CRIME.  THE RIGHT OF PRIVACY MOST
MANIFESTLY IS NOT AN ABSOLUTE.  THUS, I WOULD NOT SUGGEST THAT
ADULTERY, HOMOSEXUALITY, FORNICATION AND INCEST ARE IMMUNE FROM
CRIMINAL ENQUIRY, HOWEVER PRIVATELY PRACTICED.  SO MUCH HAS BEEN
EXPLICITLY RECOGNIZED IN ACKNOWLEDGING THE STATE'S RIGHTFUL CONCERN FOR
ITS PEOPLE'S MORAL WELFARE.  SEE PP. 545-548, SUPRA.  BUT NOT TO
DISCRIMINATE BETWEEN WHAT IS INVOLVED IN THIS CASE AND EITHER THE
TRADITIONAL OFFENSES AGAINST GOOD MORALS OR CRIMES WHICH, THOUGH THEY
MAY BE COMMITTED ANYWHERE, HAPPEN TO HAVE BEEN COMMITTED OR CONCEALED
IN THE HOME, WOULD ENTIRELY MISCONCEIVE THE ARGUMENT THAT IS BEING
MADE. 

ADULTERY, HOMOSEXUALITY AND THE LIKE ARE SEXUAL INTIMACIES WHICH THE
STATE FORBIDS ALTOGETHER, BUT THE INTIMACY OF HUSBAND AND WIFE IS
NECESSARILY AN ESSENTIAL AND ACCEPTED FEATURE OF THE INSTITUTION OF
MARRIAGE, AN INSTITUTION WHICH THE STATE NOT ONLY MUST ALLOW, BUT WHICH
ALWAYS AND IN EVERY AGE IT HAS FOSTERED AND PROTECTED.  IT IS ONE THING
WHEN THE STATE EXERTS ITS POWER EITHER TO FORBID EXTRA-MARITAL
SEXUALITY ALTOGETHER, OR TO SAY WHO MAY MARRY, BUT IT IS QUITE ANOTHER
WHEN, HAVING ACKNOWLEDGED A MARRIAGE AND THE INTIMACIES INHERENT IN IT,
IT UNDERTAKES TO REGULATE BY MEANS OF THE CRIMINAL LAW THE DETAILS OF
THAT INTIMACY. 

IN SUM, EVEN THOUGH THE STATE HAS DETERMINED THAT THE USE OF
CONTRACEPTIVES IS AS INIQUITOUS AS ANY ACT OF EXTRA-MARITAL SEXUAL
IMMORALITY, THE INTRUSION OF THE WHOLE MACHINERY OF THE CRIMINAL LAW
INTO THE VERY HEART OF MARITAL PRIVACY, REQUIRING HUSBAND AND WIFE TO
RENDER ACCOUNT BEFORE A CRIMINAL TRIBUNAL OF THEIR USES OF THAT
INTIMACY, IS SURELY A VERY DIFFERENT THING INDEED FROM PUNISHING THOSE
WHO ESTABLISH INTIMACIES WHICH THE LAW HAS ALWAYS FORBIDDEN AND WHICH
CAN HAVE NO CLAIM TO SOCIAL PROTECTION. 

IN MY VIEW THE APPELLANTS HAVE PRESENTED A VERY PRESSING CLAIM FOR
CONSTITUTIONAL PROTECTION.  SUCH DIFFICULTY AS THE CLAIM PRESENTS LIES
ONLY IN EVALUATING IT AGAINST THE STATE'S COUNTERVAILING CONTENTION
THAT IT BE ALLOWED TO ENFORCE, BY WHATEVER MEANS IT DEEMS APPROPRIATE,
ITS JUDGMENT OF THE IMMORALITY OF THE PRACTICE THIS LAW CONDEMNS.  IN
RESOLVING THIS CONFLICT A NUMBER OF FACTORS COMPEL ME TO CONCLUDE THAT
THE DECISION HERE MUST MOST EMPHATICALLY BE FOR THE APPELLANTS.  SINCE,
AS IT APPEARS TO ME, THE STATUTE MARKS AN ABRIDGMENT OF IMPORTANT
FUNDAMENTAL LIBERTIES PROTECTED BY THE FOURTEENTH AMENDMENT, IT WILL
NOT DO TO URGE IN JUSTIFICATION OF THAT ABRIDGMENT SIMPLY THAT THE
STATUTE IS RATIONALLY RELATED TO THE EFFECTUATION OF A PROPER STATE
PURPOSE.  A CLOSER SCRUTINY AND STRONGER JUSTIFICATION THAN THAT ARE
REQUIRED.  SEE PP. 542-545, SUPRA. 

THOUGH THE STATE HAS ARGUED THE CONSTITUTIONAL PERMISSIBILITY OF THE
MORAL JUDGMENT UNDERLYING THIS STATUTE, NEITHER ITS BRIEF, NOR ITS
ARGUMENT, NOR ANYTHING IN ANY OF THE OPINIONS OF ITS HIGHEST COURT IN
THESE OR OTHER CASES EVEN REMOTELY SUGGESTS A JUSTIFICATION FOR THE
OBNOXIOUSLY INTRUSIVE MEANS IT HAS CHOSEN TO EFFECTUATE THAT POLICY. 
TO ME THE VERY CIRCUMSTANCE THAT CONNECTICUT HAS NOT CHOSEN TO PRESS
THE ENFORCEMENT OF THIS STATUTE AGAINST INDIVIDUAL USERS, WHILE IT
NEVERTHELESS PERSISTS IN ASSERTING ITS RIGHT TO DO SO AT ANY TIME - IN
EFFECT A RIGHT TO HOLD THIS STATUTE AS AN IMMINENT THREAT TO THE
PRIVACY OF THE HOUSEHOLDS OF THE STATE - CONDUCES TO THE INFERENCE
EITHER THAT IT DOES NOT CONSIDER THE POLICY OF THE STATUTE A VERY
IMPORTANT ONE, OR THAT IT DOES NOT REGARD THE MEANS IT HAS CHOSEN FOR
ITS EFFECTUATION AS APPROPRIATE OR NECESSARY. 

BUT CONCLUSIVE, IN MY VIEW, IS THE UTTER NOVELTY OF THIS ENACTMENT. 
ALTHOUGH THE FEDERAL GOVERNMENT AND MANY STATES HAVE AT ONE TIME OR
OTHER HAD ON THEIR BOOKS STATUTES FORBIDDING OR REGULATING THE
DISTRIBUTION OF CONTRACEPTIVES, NONE, SO FAR AS I CAN FIND, HAS MADE
THE USE OF CONTRACEPTIVES A CRIME.  (FN15)  INDEED, A DILIGENT SEARCH
HAS REVEALED THAT NO NATION, INCLUDING SEVERAL WHICH QUITE EVIDENTLY
SHARE CONNECTICUT'S MORAL POLICY, (FN16) HAS SEEN FIT TO EFFECTUATE
THAT POLICY BY THE MEANS PRESENTED HERE. 

THOUGH UNDOUBTEDLY THE STATES ARE AND SHOULD BE LEFT FREE TO REFLECT
A WIDE VARIETY OF POLICIES, AND SHOULD BE ALLOWED BROAD SCOPE IN
EXPERIMENTING WITH VARIOUS MEANS OF PROMOTING THOSE POLICIES, I MUST
AGREE WITH MR. JUSTICE JACKSON THAT "THERE ARE LIMITS TO THE EXTENT TO
WHICH A LEGISLATIVELY REPRESENTED MAJORITY MAY CONDUCT  ...
EXPERIMENTS AT THE EXPENSE OF THE DIGNITY AND PERSONALITY" OF THE
INDIVIDUAL.  SKINNER V. OKLAHOMA, SUPRA.  IN THIS INSTANCE THESE LIMITS
ARE, IN MY VIEW, REACHED AND PASSED. 

I WOULD ADJUDICATE THESE APPEALS AND HOLD THIS STATUTE
UNCONSTITUTIONAL, INSOFAR AS IT PURPORTS TO MAKE CRIMINAL THE CONDUCT
CONTEMPLATED BY THESE MARRIED WOMEN.  IT FOLLOWS THAT IF THEIR CONDUCT
CANNOT BE A CRIME, APPELLANT BUXTON CANNOT BE AN ACCOMPLICE THERETO.  I
WOULD REVERSE THE JUDGMENT IN EACH OF THESE CASES. 

FN1  THESE STATUTES, CONN. GEN. STAT., REV. 1958, SEC. 53-32
(FORBIDDING THE USE OF CONTRACEPTIVES), AND CONN. GEN. STAT., REV.
1958, SEC. 54-196 (THE GENERAL ACCESSORY LAW), ARE SET FORTH IN NOTE 2
OF THE PLURALITY OPINION, ANTE, P. 499. 

FN2  ONLY TWO CASES ARE SQUARELY RELIED ON, C.I.O. V. MCADORY, 325
U.S. 472, A COMPANION CASE TO ALABAMA STATE FEDERATION OF LABOR V.
MCADORY, SUPRA, DISCUSSED AT PP. 526-527, INFRA, AND TENDERING THE SAME
ISSUES; AND EX PARTE LA PRADE, 289 U.S. 444.  THE APPEAL IN THE
PRINCIPAL MCADORY CASE WAS DISMISSED BECAUSE THE STATE STATUTE THERE
CHALLENGED HAD NOT YET BEEN CONSTRUED BY THE STATE COURTS, AND IT WAS
THOUGHT THAT STATE CONSTRUCTION MIGHT REMOVE SOME CONSTITUTIONAL
DOUBTS.  IN THE COMPANION MCADORY CASE, THE APPEAL WAS LIKEWISE
DISMISSED, THE STATE HAVING "AGREED NOT TO ENFORCE SEC. 7 OF THE ACT
THERE CHALLENGED UNTIL THE FINAL DECISION AS TO THE SECTION'S VALIDITY
BY THIS COURT IN ALABAMA STATE FEDERATION OF LABOR V. MCADORY  ...  ." 
ID., AT 475.  IN THE PRESENT APPEALS THERE IS NO AGREEMENT NOT TO
PROSECUTE, NO COMPANION CASE AWAITING DISPOSITION, AND NO UNCERTAINTY
ABOUT STATE LAW DUE TO LACK OF STATE CONSTRUCTION. 

AS TO EX PARTE LA PRADE, SUPRA, SEE NOTE 11, INFRA. 

FN3 MANIFESTLY THE TYPE OF RIPENESS FOUND WANTING IN CASES SUCH AS
MASSACHUSETTS V. MELLON, 262 U.S. 447, TEXAS V. INTERSTATE COMMERCE
COMM'N, 258 U.S. 158, NEW JERSEY V. SARGENT, 269 U.S. 328, AND ARIZONA
V. CALIFORNIA, 283 U.S. 423, IS NOT LACKING IN THE CASES BEFORE US.
FOR THE RECURRENT THEME OF THOSE CASES, ALL OF WHICH CHALLENGE FEDERAL
ACTION AS AN ENCROACHMENT ON STATE SOVEREIGNTY, IS THE FACT THAT THE
MERE EXISTENCE OF STATE SOVEREIGN POWERS AND PREROGATIVES WHICH MAY
BEAR GENERALLY UPON INDIVIDUAL RIGHTS RAISES NO SUCH CONCRETE AND
PRACTICAL ISSUES AS COURTS ARE ACCUSTOMED TO CONSIDER, SO THAT
ADJUDICATION UPON THEIR VALIDITY IN SUCH CIRCUMSTANCES WOULD TAKE PLACE
IN THE MOST ABSTRACT KIND OF SETTING. 

FN4  SOME SUPPORT IS SOUGHT TO BE DRAWN FOR THE SUPPOSITION OF STATE
ACQUIESCENCE IN VIOLATION OF THE STATUTE FROM THE CASE OF STATE V.
CERTAIN CONTRACEPTIVE MATERIALS, 126 CONN. 428, 11 A.2D 863.  BUT THAT
CASE HELD NO MORE THAN THAT CONTRACEPTIVE MATERIALS COULD NOT BE SEIZED
UNDER THE AUTHORITY OF A STATUTE INTERPRETED TO DEAL WITH THE SEIZURE
OF GAMBLING PARAPHERNALIA. 

FN5  THE "CIRCUMSTANCES" OF THE NELSON CASE MAY BEST BE GATHERED FROM
THE REMARKS OF THE STATE'S PROSECUTING ATTORNEY, MR. FITZGERALD,
SEEKING THE APPROVAL OF THE TRIAL JUDGE FOR A NOLLE PROSEQUI IN THAT
CASE AFTER THE DECISION OF THE STATE SUPREME COURT.  IN AN AFFIDAVIT
ACCOMPANYING A TRANSCRIPT OF THE PROCEEDINGS ON THE STATE'S MOTION, THE
ATTORNEY FOR THE DEFENDANTS STATED THAT "SAID CRIMINAL PROSECUTIONS
WERE PROSECUTIONS INSTITUTED BY THE STATE UPON COMPLAINT OF A CITIZEN
AND WERE INSTITUTED IN NO SENSE WITH THE PRIOR KNOWLEDGE OR APPROVAL OF
THE ACCUSED AND THERE WAS NO PRE-TRIAL ACQUIESCENCE BY THE ACCUSED THAT
SAID ACTIONS WOULD BE INSTITUTED TO TEST THE CONSTITUTIONALITY OF THE
STATUTES IN QUESTION." 

FN6  THIS STATEMENT WAS MADE IN THE SAME PROCEEDINGS REFERRED TO IN
NOTE 5, SUPRA. 

FN7  SEE BRIEF OF PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., AS
AMICUS CURIAE, P. 4, AND APPENDIX F. 

FN8  THE CONCURRING OPINION CONCLUDES, APPARENTLY ON THE BASIS OF THE
NELSON EPISODE, THAT THE "TRUE CONTROVERSY IN THIS CASE IS OVER THE
OPENING OF BIRTH-CONTROL CLINICS ON A LARGE SCALE  ... ."  IT SHOULD BE
SAID AT ONCE THAT AS TO THESE APPEALS THIS IS AN ENTIRELY UNWARRANTED
ASSUMPTION.  THE AMICUS CURIAE IN THIS CASE, THE PLANNED PARENTHOOD
FEDERATION OF AMERICA, INC., IS INDEED INTERESTED IN SUCH CLINICS, SEE
NOTE 7, SUPRA, BUT AS TO THE ACTUAL PARTIES HERE, THERE IS NOT ONE WORD
IN THE RECORD OR THEIR BRIEFS TO SUGGEST THAT THEIR INTEREST IS
ANYTHING OTHER THAN THEY SAY IT IS.  THE NELSON PROSECUTION, IT IS
TRUE, INVOLVED A DOCTOR AND NURSES AT A BIRTH-CONTROL CLINIC, BUT THERE
IS NOTHING ABOUT THESE STATUTES AS THEY HAVE BEEN AUTHORITATIVELY
CONSTRUED IN THIS AND PREVIOUS CASES, THAT LIMITS THEIR APPLICATION TO
ADVICE GIVEN BY A DOCTOR IN A CLINIC OF THAT SORT, AS OPPOSED TO ADVICE
GIVEN BY A DOCTOR IN SOME LESS SPECIALIZED CLINIC, A HOSPITAL OR IN HIS
OWN OFFICE.    THE ONLY CONCEIVABLE SENSE IN WHICH "THE TRUE
CONTROVERSY IN THIS CASE IS OVER THE OPENING OF BIRTH-CONTROL CLINICS"
MUST LIE IN THE CIRCUMSTANCE THAT SINCE THE NOTORIOUS AND AVOWED
PURPOSE OF SUCH A CLINIC IS THE VIOLATION OF THESE STATUES, THERE WOULD
NOT BE THE SAME PROBLEM OF DETECTION OR PROOF OF VIOLATIONS AS MIGHT
OTHERWISE PRESENT ITSELF.  THE RELEVANCE IN TURN OF THIS CIRCUMSTANCE
MUST BE THAT, IN THE VIEW OF THE CONCURRING OPINION THERE IS A PRESENT
THREAT OF ENFORCEMENT AGAINST ANY SUCH CLINIC - WHICH I TOO BELIEVE -
BUT COUPLED WITH A FURTHER ASSUMPTION - ONE SHARED BY THE PLURALITY
OPINION THOUGH LACKING ANY FACTUAL WARRANT WHATEVER - THAT THESE
STATUTES DO NOT ALSO DETER MEMBERS OF THE MEDICAL PROFESSION IN GENERAL
FROM VIOLATING THESE STATUTES.  FURTHERMORE BOTH OPINIONS MUST SHARE
THE ASSUMPTION THAT THE APPELLANTS MAY BE REQUIRED TO HOLD WHAT MAY BE
THEIR CONSITUTIONAL RIGHTS AT THE WHIM AND PLEASURE OF THE PROSECUTOR. 
IN SUM, THE STRONG IMPLICATION OF THE CONCURRING OPINION THAT A SUIT
FOR ANTICIPATORY RELIEF BROUGHT BY A BIRTH-CONTROL CLINIC (THOUGH IT
WOULD RAISE NO DIFFERENT ISSUES AND PRESENT A RECORD NO LESS "SKIMPY")
WOULD SUCCEED IN INVOKING OUR JURISDICTION WHERE THESE SUITS FAIL,
EXPOSES THE FALLACY UNDERLYING THE COURT'S DISPOSITION: THE
UNPRECEDENTED DOCTRINE THAT A SUIT FOR ANTICIPATORY RELIEF WILL BE
ENTERTAINED AT THE INSTANCE OF ONE WHO IS FORCED TO VIOLATE A STATUTE
FLAGRANTLY, BUT NOT AT THE URGING OF ONE WHO MAY VIOLATE IT
SURREPTITIOUSLY WITH A HIGH PROBABILITY OF AVOIDING DETECTION. 

FN9  IN THIS REGARD IT IS WORTH COMPARING THE RECORD OF THE FEDERAL
COMMUNICATIONS COMMISSION IN ENFORCING ITS REGULATIONS BY MEANS OF A
THREAT OF REVOCATION OF STATION LICENSES.  THE COMMISSION HAS NOT, AS
IS GENERALLY KNOWN, USED THIS SANCTION MUCH MORE READILY THAN
CONNECTICUT HAS INVOKED CRIMINAL PENALTIES TO ENFORCE THE LAWS HERE IN
QUESTION, BUT NO ONE WOULD DISCOUNT ENTIRELY THE EFFICACY OF THE THREAT
OR SUGGEST THAT OPEN DEFIANCE OF COMMISSION REGULATIONS IS WITHOUT
SUBSTANTIAL RISKS. 

FN10  IT IS SUGGESTED THAT PROSECUTION IS UNLIKELY BECAUSE OF AN
INTERSPOUSAL TESTIMONIAL PRIVILEGE IN CONNECTICUT.  ASSUMING THAT SUCH
A PRIVILEGE EXISTS AND IS APPLICABLE HERE, THE TESTIMONY OF EITHER
SPOUSE IS NOT NECESSARY TO A CONVICTION.  FURTHERMORE, AS WILL BE
ARGUED, THE REAL INCURSION HERE INHERES IN THE INSTITUTION OF A
PROSECUTION IN THIS MATTER AT ALL, WITH THE CONSEQUENT NEED OF AN
OPPORTUNITY FOR THE PARTIES - QUILTY OR INNOCENT - TO DEFEND THEMSELVES
AGAINST THE CHARGES.  SEE P. 548, INFRA. 

FN11  THERE IS A MUCH DISCREDITED DICTUM IN EX PARTE LA PRADE, 289
U.S. 444, THAT IN AN INJUNCTION ACTION THERE MUST BE AN ALLEGATION OF
THREATENED IMMEDIATE ENFORCEMENT OF THE STATUTE.  SEE 50 YALE L.J.
1278; BORCHARD, CHALLENGING "PENAL" STATUTES BY DECLARATORY ACTION, 52
YALE L.J. 445; 62 HARV. L. REV. 870-871.  BUT AGAINST THIS DICTUM
(WHICH EVEN IN ITS CONTEXT WAS JUSTIFIED ONLY AS A NATURAL CONSEQUENCE
OF THE RULE OF EX PARTE YOUNG, 209 U.S. 123, INVOLVING SUITS AGAINST
STATE OFFICERS) ONE CAN ARRAY NUMEROUS CASES IN WHICH PROOF OF ANY SUCH
IMMEDIATE THREAT WAS CONSIDERED UNNECESSARY AND THE COURT PROCEEDED TO
A DETERMINATION OF THE MERITS.  SEE, E.G., PENNSYLVANIA V. WEST
VIRGINIA, 262 U.S. 553; EUCLID V. AMBLER CO., 272 U.S. 365; CARTER V.
CARTER COAL CO., 298 U.S. 238; CURRIN V. WALLACE, 306 U.S. 1. 

FN12  THE SO-CALLED COMSTOCK LAW, 17 STAT. 598, MAY BE REGARDED AS
CHARACTERISTIC OF THE ATTITUDE OF A LARGE SEGMENT OF PUBLIC OPINION ON
THIS MATTER THROUGH THE END OF THE LAST CENTURY.  IT WAS ONLY BY
JUDICIAL INTERPRETATION AT A LATER DATE THAT THE ABSOLUTE PROHIBITIONS
OF THE LAW WERE QUALIFIED TO EXCLUDE PROFESSIONAL MEDICAL USE.  YOUNGS
RUBBER CORP. V. LEE & CO., 45 F.2D 103; DAVIS V. UNITED STATES, 62 F.2D
473; UNITED STATES V. ONE PACKAGE, 86 F.2D 737; 50 HARV. L. REV. 1312. 
HOWEVER, THE COMSTOCK LAW IN ITS ORIGINAL FORM "STARTED A FASHION" AND
MANY STATES ENACTED SIMILAR LEGISLATION, SOME OF WHICH IS STILL ON THE
BOOKS.  SEE STONE AND PILPEL, THE SOCIAL AND LEGAL STATUS OF
CONTRACEPTION, 22 N.C.L. REV. 212; LEGISLATION NOTE, 45 HARV. L. REV.
723; NOTE, 6 U. OF CHI.  L. REV. 260; MURRAY, AMERICA'S FOUR
CONSPIRACIES, AT 32-33, IN RELIGION IN AMERICA (COGLEY ED.).  INDEED
THE CRITICISM OF THESE MEASURES ASSUMES THAT THEY REPRESENTED GENERAL
PUBLIC OPINION, THOUGH OF A BYGONE DAY.  SEE, E.G., KNOPF, VARIOUS
ASPECTS OF BIRTH CONTROL; BIRTH CONTROL CLINICAL RESEARCH BUREAU, LAWS
RELATING TO BIRTH CONTROL IN THE UNITED STATES AND ITS TERRITORIES,
FOREWORD AND INTRODUCTION; STONE AND PILPEL, SUPRA; HEARINGS ON H.R.
11082, 72D CONG., 1ST SESS.  SEE GENERALLY, BROUN AND LEECH, ANTHONY
COMSTOCK; DENNETT, BIRTH CONTROL LAWS. 

FN13  "NO SOLDIER SHALL, IN TIME OF PEACE BE QUARTERED IN ANY HOUSE,
WITHOUT THE CONSENT OF THE OWNER, NOR IN TIME OF WAR, BUT IN A MANNER
TO BE PRESCRIBED BY LAW." 

FN14  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

FN15  SEE TABULATION OF STATUTES IN BIRTH CONTROL LEGISLATION, 9
CLEVELAND-MARSHALL LAW REVIEW, 245 (1960); LEGISLATION NOTE, 45 HARV.
L. REV. 723 (1932); BIRTH CONTROL CLINICAL RESEARCH BUREAU, LAWS
RELATING TO BIRTH CONTROL IN THE UNITED STATES AND ITS TERRITORIES
(1938). 

FN16  UNQUALIFIED DISAPPROVAL OF CONTRACEPTION IS IMPLICIT IN THE
LAWS OF BELGIUM, DROIT PENAL, SEC. 383; FRANCE, CODE PENAL, ART. 317;
IRELAND, CENSORSHIP OF PUBLICATIONS ACT OF 1929, SECS. 16, 17, CRIMINAL
LAW AMENDMENT ACT OF 1935, SEC. 17; ITALY, CODICE PENALE, ARTS.  553,
555; AND SPAIN, CODIGO PENAL, ART. 416.  COMPARE THE MORE PERMISSIVE
LEGISLATION IN CANADA, CRIMINAL CODE, SEC. 150; GERMANY,
STRAFGESETZBUCH, SEC. 184; AND SWITZERLAND, CODE PENAL, ART. 211. 

MR. JUSTICE STEWART, DISSENTING. 

FOR THE REASONS SO CONVINCINGLY ADVANCED BY BOTH MR. JUSTICE DOUGLAS
AND MR. JUSTICE HARLAN, I JOIN THEM IN DISSENTING FROM THE DISMISSAL OF
THESE APPEALS.  SINCE THE APPEALS ARE NONETHELESS DISMISSED, MY DISSENT
NEED GO NO FURTHER.  HOWEVER, IN REFRAINING FROM A DISCUSSION OF THE
CONSTITUTIONAL ISSUES, I IN NO WAY IMPLY THAT THE ULTIMATE RESULT I
WOULD REACH ON THE MERITS OF THESE CONTROVERSIES WOULD DIFFER FROM THE
CONCLUSIONS OF MY DISSENTING BROTHERS. 
..END :




PIEMONTE V. UNITED STATES 367 U.S. 556 


NO. 122.  ARGUED MARCH 21, 1961 - DECIDED JUNE 19, 1961 - 276 F.2D 148,
AFFIRMED. 


WHILE SERVING A SENTENCE FOR A FEDERAL NARCOTICS OFFENSE, PETITIONER
WAS SUMMONED BEFORE A FEDERAL GRAND JURY AND ASKED QUESTIONS CONCERNING
HIS CRIME AS WELL AS OTHER TRANSACTIONS IN NARCOTICS.  HE INVOKED HIS
PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT AND
REFUSED TO ANSWER.  ACTING PURSUANT TO 18 U.S.C. SEC. 1406, WHICH
GRANTS IMMUNITY FROM PROSECUTION TO A WITNESS COMPELLED TO TESTIFY
BEFORE A GRAND JURY CONCERNING VIOLATIONS OF THE NARCOTICS LAWS, THE
UNITED STATES ATTORNEY OBTAINED A COURT ORDER GRANTING PETITIONER
IMMUNITY AND DIRECTING HIM TO TESTIFY.  ON HIS REFUSAL TO DO SO, PARTLY
BECAUSE HE FEARED FOR HIS LIFE AND THAT OF HIS FAMILY, HE WAS ADJUDGED
GUILTY OF CRIMINAL CONTEMPT.  HELD:  THE CONVICTION IS SUSTAINED. 
REINA V. UNITED STATES, 364 U.S. 507.  PP. 556-561. 

PIEMONTE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER, ARMANDO PIEMONTE, WHILE SERVING A SIX-YEAR SENTENCE FOR
THE SALE AND POSSESSION OF HEROIN, WAS BROUGHT BY WRIT OF HABEAS CORPUS
AD TESTIFICANDUM BEFORE A FEDERAL GRAND JURY INQUIRING INTO NARCOTICS
OFFENSES.  HAVING CONSULTED HIS COUNSEL PRIOR TO HIS APPEARANCE, BEFORE
THE GRAND JURY HE REFUSED TO ANSWER ALL QUESTIONS CONCERNING HIS CRIME
AS WELL AS OTHER TRANSACTIONS IN NARCOTICS, UNDER THE CLAIM OF HIS
PRIVILEGE AGAINST SELF-INCRIMINATION.  THREE DAYS LATER, THE UNITED
STATES ATTORNEY PETITIONED FOR AN ORDER DIRECTING PIEMONTE TO ANSWER
THE QUESTIONS PUT TO HIM.  THE PETITION STATED THAT THE GRAND JURY WAS
CONDUCTING AN INVESTIGATION OF ILLEGAL NARCOTICS ACTIVITIES, THAT
PIEMONTE'S TESTIMONY WAS REQUIRED FOR THE INVESTIGATION IN THE PUBLIC
INTEREST, THAT HAVING BEEN QUESTIONED ON MATTERS RELATING TO NARCOTICS
PIEMONTE CLAIMED HIS PRIVILEGE AGAINST SELF-INCRIMINATION, WHEREFORE
REQUEST WAS MADE THAT PIEMONTE BE REQUIRED TO TESTIFY PURSUANT TO 18
U.S.C. SEC. 1406.  THAT PROVISION OF THE NARCOTIC CONTROL ACT OF 1956
GIVES IMMUNITY FROM FUTURE PROSECUTION TO ANY WITNESS WHO IS COMPELLED
BY COURT ORDER TO TESTIFY BEFORE A GRAND JURY CONCERNING VIOLATIONS OF
THE NARCOTICS LAWS.  (FN1) THE SECTION'S BREADTH AND CONSTITUTIONALITY
WERE CONSIDERED EARLIER THIS TERM IN REINA V. UNITED STATES, 364 U.S.
507. 

THE DISTRICT JUDGE, HAVING GRANTED PIEMONTE IMMUNITY FROM
"PROSECUTION WHICH MIGHT ARISE FROM ANY ANSWERS THAT YOU GIVE TO THIS
GRAND JURY CONCERNING THE MATTER OF THEIR INVESTIGATION," ORDERED HIM
TO TESTIFY "RELATIVE TO THE AFOREMENTIONED INQUIRY OF SAID GRAND JURY
...  ."  PIEMONTE WAS GRANTED AN OPPORTUNITY TO CONSULT HIS LAWYER AND
HIS DUTY TO APPEAR BEFORE THE GRAND JURY WAS DELAYED FOR A DAY.  THE
NEXT MORNING HE RENEWED HIS REFUSAL TO ANSWER THE QUESTIONS PROPOUNDED
TO HIM ABOUT NARCOTICS ACTIVITIES AND AGAIN INVOKED HIS FIFTH AMENDMENT
PRIVILEGE. 

THAT AFTERNOON HE WAS TAKEN BACK BEFORE THE DISTRICT COURT TO ANSWER
AN ORDER TO SHOW CAUSE WHY HE SHOULD NOT BE CITED FOR CONTEMPT FOR
DELIBERATELY DISOBEYING THE PREVIOUS ORDER TO TESTIFY.  HE WAS
REPRESENTED BY HIS COUNSEL AT THIS PROCEEDING.  HAVING EXAMINED THE
TRANSCRIPT OF THE GRAND JURY'S MORNING PROCEEDINGS, THE JUDGE ASKED
PETITIONER IF HE PERSISTED IN REFUSING TO ANSWER THE QUESTIONS, TO
WHICH PIEMONTE REPLIED IN THE AFFIRMATIVE.  THE JUDGE GAVE PIEMONTE'S
COUNSEL FOUR DAYS TO PREPARE FOR A PLENARY HEARING OF THE CHARGE OF
CONTUMACY, BUT DENIED PIEMONTE'S MOTION FOR A JURY TRIAL. 

AT THE SUBSEQUENT HEARING, THE GOVERNMENT STOOD ON ITS CASE BASED ON
THE GRAND JURY TRANSCRIPTS AND THE COURT'S ORDER TO TESTIFY.  THE JUDGE
AGAIN ASKED PIEMONTE IF HE PERSISTED IN HIS REFUSAL TO OBEY THE COURT'S
ORDER.  PIEMONTE TOOK THE STAND IN HIS OWN BEHALF, AND MADE THE
FOLLOWING EXPLANATION FOR HIS REFUSAL TO TESTIFY: 

"WELL, I AM DOING TIME IN THE PENITENTIARY.  I FEAR FOR MY LIFE.  I
FEAR FOR THE LIFE OF MY WIFE, MY TWO STEPCHILDREN, AND MY FAMILY.  I
CAN'T DO SOMETHING LIKE THAT.  I WANT TO LIVE, TOO." 

AFTER HIS COUNSEL'S ELABORATION OF THIS ARGUMENT, THE JUDGE AGAIN
ASKED PIEMONTE IF HE WOULD TESTIFY.  UPON HIS REFUSAL, THE JUDGE
DECLARED HIM GUILTY OF CONTEMPT OF COURT FOR WILLFUL FAILURE TO OBEY A
LAWFUL ORDER.  AFTER HEARING ARGUMENT ON THE SENTENCE, THE JUDGE ONCE
AGAIN OFFERED TO GIVE PETITIONER THE OPPORTUNITY TO ANSWER THE
QUESTIONS.  THE REFUSAL HAVING BEEN MADE DEFINITIVE, SENTENCE WAS FIXED
AT EIGHTEEN MONTHS, TO COMMENCE AT THE TERMINATION OF THE IMPRISONMENT
HE WAS SERVING. 

THE CONTEMPT JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT, 276 F.2D 148, AND WE GRANTED CERTIORARI, 364 U.S.
811. 

THIS RECORD SURELY EVINCES THE UTMOST SOLICITUDE BY THE TRIAL COURT
FOR THE DEFENDANT'S INTERESTS.   HIS ONLY CLAIM FOR REVERSAL HERE IS
BASED UPON ALLEGED DEFECTS IN THE PROCEEDINGS WHICH RESULTED IN HIS
CONVICTION OF CRIMINAL CONTEMPT.  (FN2) 

PETITIONER'S FIRST CLAIM IS THAT HE WAS SUBJECTED TO SO MANY
DIFFERING INTERPRETATIONS OF WHETHER HE HAD A PRIVILEGE TO REFRAIN FROM
TESTIFYING AS TO CERTAIN QUESTIONS THAT THE ORDER COMMANDING HIM TO
ANSWER LACKED SUFFICIENT CLARITY.  THIS IS A SHEER AFTERTHOUGHT. 
NEITHER PIEMONTE NOR HIS COUNSEL EVER CLAIMED CONFUSION IN THE DISTRICT
COURT AS A BASIS FOR HIS REFUSAL TO TESTIFY.  NOR DO THE FACTS REVEAL
THAT PETITIONER COULD HAVE BEEN MISLED BY THE OUT-OF-CONTEXT STATEMENTS
HE PIECES TOGETHER FOR PURPOSES OF REVIEW. 

THE FIRST MORNING BEFORE THE GRAND JURY, THE GOVERNMENT ATTORNEY
ASKED PETITIONER: 

"DIDN'T YOUR LAWYER ADVISE YOU, MR. PIEMONTE, ON THOSE MATTERS THAT
YOU PLEADED GUILTY TO IN THE INDICTMENT THAT YOU HAVE NO CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION?" 

HOWEVER, THE GOVERNMENT, IN ORDER TO AVOID ANY ARGUMENTATIVE
OPPORTUNITIES AS TO THE SCOPE OF THE AREA FOR WHICH IT SOUGHT IMMUNITY,
DID NOT ATTEMPT TO SECURE AN ORDER DIRECTING ANSWERS FOR THE PARTICULAR
QUESTIONS RELATING TO MATTERS INVOLVED IN HIS FORMER CONVICTION.  IT
REQUESTED A BROAD ORDER OF IMMUNITY TO COVER THE ENTIRE SCOPE OF WHAT
WAS UNDER INVESTIGATION BY THE GRAND JURY.  THE UNITED STATES ATTORNEY
TOLD THE DISTRICT JUDGE IN SEEKING THE ORDER COMPELLING TESTIMONY: 

"SO THAT THE COURT WOULD NOT HAVE ANY MISCONCEPTION OF THE IDEA OF
THE GOVERNMENT COUNSEL ON THIS MATTER, WE, TOO, THINK THAT THE
CONSTITUTIONAL PRIVILEGE CLAIMED BY THE WITNESS IS WELL TAKEN IN THIS
MATTER." 

PETITIONER PLAINLY MUST HAVE KNOWN - AND GAVE EVERY INDICATION THAT
HE KNEW - THAT HE WAS REQUIRED TO ANSWER ALL QUESTIONS PUT TO HIM BY
THE GRAND JURY IN RETURN FOR EQUIVALENT, COMPENSATING IMMUNITY.  WE
FIND NO MERIT IN AN ARGUMENT WHICH IS CONTRADICTED BY PETITIONER'S OWN
ASSERTION, SUPPORTED BY HIS COUNSEL'S ARGUMENT, THAT HE REFUSED TO
TESTIFY SOLELY BECAUSE OF FEAR. 

SECONDLY, PETITIONER ARGUES THAT THE ORAL GRANT OF IMMUNITY BY THE
DISTRICT JUDGE WAS NULL AND VOID, BECAUSE THE JUDGE SAID "THIS COURT
NOW GRANTS YOU IMMUNITY FROM PROSECUTION  ...  ," AND "I NOW GRANT YOU
IMMUNITY FROM SUCH PROSECUTION  ...  ," WHEN IN REALITY THE STATUTE,
NOT THE COURT, GRANTS THE IMMUNITY.  THE PUERILITY OF THIS CONTENTION
IS EMPHASIZED BY PETITIONER'S DISREGARD OF THE JUDGE'S INTRODUCTORY
BASIS OF HIS PRONOUNCEMENT AS "IN ACCORDANCE WITH THE PROVISIONS OF THE
NARCOTIC CONTROL ACT.' 

THE REMAINING CONTENTIONS OF PETITIONER ARE OF EVEN LESS
SUBSTANTIALITY, AND ACCORDINGLY THE JUDGMENT BELOW IS AFFIRMED. 

FN1  "WHENEVER IN THE JUDGMENT OF A UNITED STATES ATTORNEY THE
TESTIMONY OF ANY WITNESS, OR THE PRODUCTION OF BOOKS, PAPERS, OR OTHER
EVIDENCE BY ANY WITNESS, IN ANY CASE OR PROCEEDING BEFORE ANY GRAND
JURY OR COURT OF THE UNITED STATES INVOLVING ANY VIOLATION OF: 

"(1)  ANY PROVISION OF PART I OR PART II OF SUBCHAPTER A OF CHAPTER
39 OF THE INTERNAL REVENUE CODE OF 1954 THE PENALTY FOR WHICH IS
PROVIDED IN SUBSECTION (A) OR (B) OF SECTION 7237 OF SUCH CODE: 

"(2)  SUBSECTION (C), (H), OR (I) OF SECTION 2 OF THE NARCOTIC DRUGS
IMPORT AND EXPORT ACT, AS AMENDED (21 U.S.C., SEC. 174), OR: 

"(3)  THE ACT OF JULY 11, 1941, AS AMENDED (21 U.S.C., SEC. 184A), IS
NECESSARY TO THE PUBLIC INTEREST, HE, UPON THE APPROVAL OF THE ATTORNEY
GENERAL, SHALL MAKE APPLICATION TO THE COURT THAT THE WITNESS SHALL BE
INSTRUCTED TO TESTIFY OR PRODUCE EVIDENCE SUBJECT TO THE PROVISIONS OF
THIS SECTION, AND UPON ORDER OF THE COURT SUCH WITNESS SHALL NOT BE
EXCUSED FROM TESTIFYING OR FROM PRODUCING BOOKS, PAPERS, OR OTHER
EVIDENCE ON THE GROUND THAT THE TESTIMONY OR EVIDENCE REQUIRED OF HIM
MAY TEND TO INCRIMINATE HIM OR SUBJECT HIM TO A PENALTY OR FORFEITURE. 
BUT NO SUCH WITNESS SHALL BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR
FORFEITURE FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER, OR THING
CONCERNING WHICH HE IS COMPELLED AFTER HAVING CLAIMED HIS PRIVILEGE
AGAINST SELF-INCRIMINATION, TO TESTIFY OR PRODUCE EVIDENCE, NOR SHALL
TESTIMONY SO COMPELLED BE USED AS EVIDENCE IN ANY CRIMINAL PROCEEDING
(EXCEPT PROSECUTION DESCRIBED IN THE NEXT SENTENCE) AGAINST HIM IN ANY
COURT.  NO WITNESS SHALL BE EXEMPT UNDER THIS SECTION FROM PROSECUTION
FOR PERJURY OR CONTEMPT COMMITTED WHILE GIVING TESTIMONY OR PRODUCING
EVIDENCE UNDER COMPULSION AS PROVIDED IN THIS SECTION." 

FN2  NEITHER BEFORE THE COURT OF APPEALS NOR HERE WAS FEAR FOR
HIMSELF OR HIS FAMILY URGED BY PIEMONTE AS A VALID EXCUSE FROM
TESTIFYING.  NOR WOULD THIS BE A LEGAL EXCUSE.  EVERY CITIZEN OF COURSE
OWES TO HIS SOCIETY THE DUTY OF GIVING TESTIMONY TO AID IN THE
ENFORCEMENT OF THE LAW.  SEE BROWN V. WALKER, 161 U.S. 591, 600.  LORD
CHANCELLOR HARDWICKE'S PITHY PHRASE CANNOT BE TOO OFTEN RECALLED:  "THE
PUBLIC HAS A RIGHT TO EVERY MAN'S EVIDENCE."  12 HANSARD'S DEBATES 693;
8 WIGMORE, EVIDENCE (3D ED.), P. 64, SEC. 2192. 

IF TWO PERSONS WITNESS AN OFFENSE - ONE BEING AN INNOCENT BYSTANDER
AND THE OTHER AN ACCOMPLICE WHO IS THEREAFTER IMPRISONED FOR HIS
PARTICIPATION - THE LATTER HAS NO MORE RIGHT TO KEEP SILENT THAT THE
FORMER.  THE GOVERNMENT OF COURSE HAS AN OBLIGATION TO PROTECT ITS
CITIZENS FROM HARM.  BUT FEAR OF REPRISAL OFFERS AN IMMUNIZED PRISONER
NO MORE DISPENSATION FROM TESTIFYING THAT IT DOES ANY INNOCENT
BYSTANDER WITHOUT A RECORD. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

THIS CASE REPRESENTS ANOTHER LONG STEP IN THE CONSTANTLY EXPANDING
USE BY THE FEDERAL DISTRICT JUDGES OF THEIR SUMMARY CONTEMPT POWER TO
METE OUT SEVERE PRISON SENTENCES WITHOUT ACCORDING THE DEFENDANTS THE
BENEFIT OF A JURY TRIAL AND THE OTHER RIGHTS GUARANTEED BY THE FIFTH
AND SIXTH AMENDMENTS.  (FN1)  IN AN ORDINARY CASE OF THIS NATURE, I
WOULD CONTENT MYSELF WITH SAYING THAT THE CONVICTION SHOULD BE REVERSED
ON THE GROUND THAT A FEDERAL DISTRICT JUDGE HAS NO POWER TO IMPOSE SUCH
PUNISHMENT IN A SUMMARY PROCEEDING.  SEE GREEN V. UNITED STATES, 356
U.S. 165, 193 (DISSENTING OPINION); REINA V. UNITED STATES, 364 U.S.
507, 515 (DISSENTING OPINION).  HOWEVER, THE FACTS OF THIS CASE ARE SO
DISQUIETING THAT I AM COMPELLED TO ADD A FEW ADDITIONAL COMMENTS. 

IN 1958, THE PETITIONER WAS CONVICTED OF SELLING AND POSSESSING
NARCOTICS IN VIOLATION OF THE FEDERAL NARCOTICS LAWS AND WAS SENTENCED
BY A FEDERAL DISTRICT COURT TO SIX YEARS' IMPRISONMENT.  IN 1959, WHILE
SERVING HIS SENTENCE AT THE LEAVENWORTH PENITENTIARY, THE PETITIONER
WAS SUBPOENAED TO TESTIFY BEFORE A FEDERAL GRAND JURY CONDUCTING AN
INVESTIGATION OF POSSIBLE NARCOTICS OFFENSES.  HE WAS ASKED TO INDICATE
WHERE HE HAD OBTAINED THE NARCOTICS WHICH HE WAS CONVICTED OF HAVING
POSSESSED AND SOLD.  INVOKING HIS FIFTH AMENDMENT PRIVILEGE AGAINST
SELF-INCRIMINATION, THE PETITIONER REFUSED TO ANSWER THE QUESTION. 
(FN2)  HE WAS THEN ASKED WHETHER HE KNEW SEVERAL NAMED INDIVIDUALS AND
WHETHER HE HAD OBTAINED THE NARCOTICS FROM ANY OF THOSE INDIVIDUALS. 
STILL RELYING UPON HIS FIFTH AMENDMENT PRIVILEGE, THE PETITIONER
REFUSED TO ANSWER EACH OF THE QUESTIONS.  ON PETITION OF THE
GOVERNMENT, THE DISTRICT COURT AUTHORIZED THE GRANTING OF IMMUNITY TO
THE PETITIONER PURSUANT TO 18 U.S.C. SEC. 1406 AND INSTRUCTED HIM TO
ANSWER THE QUESTIONS ASKED BY THE GRAND JURY.  UPON BEING RECALLED
BEFORE THE GRAND JURY, THE PETITIONER AGAIN INVOKED THE FIFTH AMENDMENT
AND REFUSED TO IDENTIFY THOSE FROM WHOM HE HAD OBTAINED THE NARCOTICS
WHICH CONSTITUTED THE BASIS FOR HIS 1958 CONVICTION.  (FN3)  IN
RESPONSE TO A SUBSEQUENT ORDER TO SHOW CAUSE WHY HE SHOULD NOT BE HELD
IN CONTEMPT OF COURT, THE PETITIONER ASSERTED, AS AN ADDITIONAL REASON
FOR NOT ANSWERING, THAT THE LIVES OF HIS WIFE AND CHILDREN, AS WELL AS
HIS OWN LIFE, WOULD BE ENDANGERED WERE HE TO ANSWER THE QUESTIONS. 
HAVING DENIED THE PETITIONER'S REQUEST FOR A JURY TRIAL, THE DISTRICT
JUDGE SUMMARILY FOUND THE PETITIONER GUILTY OF CONTEMPT OF COURT AND
SENTENCED HIM TO EIGHTEEN MONTHS' IMPRISONMENT, TO BE SERVED AFTER THE
COMPLETION OF THE SIX-YEAR SENTENCE IMPOSED IN 1958. 

IN MY OPINION, THE GOVERNMENT HAS SUBJECTED THE PETITIONER TO
UNJUSTIFIABLE HARASSMENT.  THE PETITIONER HAS BEEN CONVICTED FOR HIS
ADMITTEDLY ILLEGAL CONDUCT AND IS PRESENTLY PAYING HIS DEBT TO SOCIETY
FOR THAT CONDUCT.  HOWEVER, NOT BEING SATISFIED WITH THIS PUNISHMENT,
THE GOVERNMENT SOUGHT TO EXTRACT FROM THE PETITIONER, UNDER THE THREAT
OF A CONTEMPT CONVICTION, TESTIMONY WHICH IT COULD NOT HAVE COMPELLED
AT THE ORIGINAL TRIAL IN 1958, AND WHICH IT KNOWS MIGHT WELL ENDANGER
PETITIONER'S LIFE AND THE LIVES OF HIS LOVED ONES.  IN MY VIEW, THE
GOVERNMENT'S ATTEMPT TO COMPEL THE PETITIONER TO TESTIFY ABOUT CONDUCT
FOR WHICH HE HAS ALREADY BEEN PUNISHED, AND THE DISTRICT COURT'S
IMPOSITION OF AN ADDITIONAL TERM IN THE PENITENTIARY FOR PETITIONER'S
REFUSAL TO TESTIFY ABOUT SUCH CONDUCT REPRESENTS THE TYPE OF HARASSMENT
WHICH VIOLATES THE SPIRIT OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT.  CF. ABBATE V. UNITED STATES, 359 U.S. 187, 196 (SEPARATE
OPINION OF MR. JUSTICE BRENNAN); CIUCCI V. ILLINOIS, 356 U.S. 571, 573
(DISSENTING OPINION).  I THINK IT CAN FAIRLY BE SAID THAT THE TREATMENT
WHICH THE PETITIONER HAS RECEIVED FROM THE GOVERNMENT AND THE DISTRICT
COURT FALLS FAR SHORT OF THAT FUNDAMENTAL FAIRNESS WHICH THE
CONSTITUTION GUARANTEES AND TO WHICH EVEN THE BASEST PRISONER IN THE
PENITENTIARY IS ENTITLED.  (FN4)  THEREFORE, EVEN IF THE COURT IS
UNWILLING TO RECOGNIZE THAT THE CONSTITUTION PROHIBITS THE IMPOSITION
OF PUNISHMENT IN A SUMMARY PROCEEDING, IT OUGHT TO EXERCISE ITS
SUPERVISORY POWER OVER THE LOWER FEDERAL COURTS TO RECTIFY THE ABUSE OF
THE SUMMARY CONTEMPT POWER WHICH THE RECORD IN THIS CASE MAKES
MANIFEST.  SEE OFFUTT V. UNITED STATES, 348 U.S. 11.    FN1  ONLY IN
THE LAST FEW YEARS HAS IT BECOME THE FASHION FOR DISTRICT JUDGES TO USE
THE SUMMARY CONTEMPT POWER AS A DEVICE FOR IMPOSING LONG TERMS OF
IMPRISONMENT.   SEE, E.G., REINA V. UNITED STATES, 364 U.S. 507 (TWO
YEARS' IMPRISONMENT); BROWN V. UNITED STATES, 359 U.S. 41 (FIFTEEN
MONTHS' IMPRISONMENT); GREEN V. UNITED STATES, 356 U.S. 165 (THREE
YEARS' IMPRISONMENT); COLLINS V. UNITED STATES, 269 F.2D 745 (THREE
YEARS' IMPRISONMENT; TEDESCO V. UNITED STATES, 255 F.2D 35 (TWO YEARS'
IMPRISONMENT); CORONA V. UNITED STATES, 250 F.2D 578 (TWO YEARS'
IMPRISONMENT).  PRIOR TO THIS RECENT TREND, THE SUMMARY CONTEMPT POWER
WAS SELDOM USED TO IMPOSE MORE THAN A NOMINAL FINE OR A SHORT TERM OF
IMPRISONMENT.  SEE BROWN V. UNITED STATES, SUPRA, AT 58-59 (DISSENTING
OPINION). 

FN2  "Q.  YOU ARE NOW INCARCERATED IN THE PENITENTIARY, ARE YOU NOT,
MR. PIEMONTE? 

"A.  THAT'S RIGHT. 

"Q.  WHICH ONE? 

"A.  LEAVENWORTH PENITENTIARY. 

"Q.  YOU ARE SERVING A TERM OF SIX YEARS? 

"A.  SIX YEARS. 

"Q.  AND THAT IS FOR THE SALE AND POSSESSION OF HEROIN? 

"A.  YES, SIR. 

"Q.  MR. PIEMONTE, THAT SALE AND POSSESSION OF HEROIN, THERE WERE TWO
SALES, WERE THERE NOT, ONE OUNCE AND 95 GRAINS OF HEROIN THAT YOU SOLD
FOR $3100.00, AND ANOTHER SALE - THE FIRST ONE WAS ON NOVEMBER 23,
1957, AND THE SECOND ONE WAS ON NOVEMBER 27, 1957, WHEN YOU SOLD EIGHT
OUNCES 354 GRAINS FOR $3,000.00 TO AGENT DAVIS; THOSE WERE THE CHARGES
IN THE INDICTMENT? 

"A.  RIGHT. 

"Q.  NOW, MR. PIEMONTE, OUR INFORMATION IS THAT YOU WERE IN THE
NARCOTIC BUSINESS - STRIKE THAT QUESTION. 

"THESE TWO SALES OF HEROIN, THE FIRST ONE FOR $3100.00, AND THE
SECOND ONE FOR $3,000.00, ON NOVEMBER 23, 1957, AND NOVEMBER 27, 1957,
WILL YOU TELL THE GRAND JURY, PLEASE, WHERE YOU GOT THE HEROIN? 

"A.  SIR, I AM TAKING THE 5TH AMENDMENT.  I DECLINE TO ANSWER ANY
QUESTIONS UNDER THE CONSTITUTION, THE 5TH AMENDMENT." 

FN3  "Q.  NOW I AM GOING TO GO OVER SOME OF THOSE QUESTIONS THAT YOU
CLAIMED YOUR PRIVILEGE ON AND REPEAT THEM TO YOU. 

"NOW YOU WERE CONVICTED IN THE FEDERAL COURT HERE IN CHICAGO FOR THE
SALE OF HEROIN ON NOVEMBER 23, 1957 THAT YOU GOT $3100 FOR AND ANOTHER
SALE ON THE 27TH DAY OF NOVEMBER 1957 THAT YOU GOT $3,000 FOR. 

"NOW THOSE WERE THE TWO SALES UPON WHICH YOU WERE CONVICTED AND
SENTENCED TO THE PENITENTIARY AT LEAVENWORTH, IS THAT RIGHT? 

"A.  RIGHT. 

"Q.  NOW THE QUESTION: 

"THESE TWO SALES OF HEROIN, THE FIRST ONE FOR $3100 AND THE SECOND
ONE FOR $3,000 ON NOVEMBER 23, 1957 AND NOVEMBER 27, 1957, WILL YOU
TELL THE GRAND JURY, PLEASE, WHERE YOU GOT THAT HEROIN? 

"A.  I STAND ON THE FIFTH AMENDMENT.  I DECLINE TO ANSWER AS IT MAY
TEND TO INCRIMINATE ME." 

FN4  I DO NOT MEAN TO IMPLY THAT A PERSON WHO IS INCARCERATED MAY,
FOR THAT REASON ALONE, BE EXCUSED FROM TESTIFYING BEFORE A GRANT JURY. 
HOWEVER, I DO BELIEVE THAT HE CANNOT BE COMPELLED TO TESTIFY CONCERNING
THE ILLEGAL ACTIVITY FOR WHICH HE HAS BEEN INCARCERATED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

PETITIONER, WHILE A PRISONER IN A FEDERAL PENITENTIARY SERVING A SIX
YEAR SENTENCE ON A NARCOTICS CONVICTION, WAS SUMMONED BEFORE A GRAND
JURY AND INTERROGATED ABOUT TRANSACTIONS IN NARCOTICS. 

                      I. 

ONE SERIES OF QUESTIONS WAS OPENED WITH THE FOLLOWING:  "MR.
PIEMONTE, WERE YOU IN THE NARCOTICS BUSINESS IN 1954?"  FOLLOWING THE
TENDER OF IMMUNITY, PETITIONER WAS AGAIN ASKED A SERIES OF QUESTIONS,
SOME OF THEM RELATING TO TRANSACTIONS IN NARCOTICS IN THAT YEAR.  AMONG
THE QUESTIONS WAS THE FOLLOWING:  "HAVE YOU SUPPLIED JEREMIAH PULLINGS
WITH ANY HEROIN?" 

THESE QUESTIONS AND THESE REFUSALS TO ANSWER WERE ON AUGUST 10 AND
14, 1959.  THE SENTENCE FOR CONTEMPT WAS IMPOSED ON AUGUST 18, 1959. 
AFTER THAT DATE AND BEFORE FEBRUARY 29, 1960, THE DATE WHEN THE COURT
OF APPEALS AFFIRMED THE APPEAL, THE GRAND JURY RETURNED ANOTHER
INDICTMENT AGAINST PETITIONER.  THIS WAS ON SEPTEMBER 2, 1959.  THIS
INDICTMENT CHARGED PETITIONER AND OTHERS WITH A CONSPIRACY TO BUY AND
SELL NARCOTICS COMMENCING IN AUGUST 1954.  ONE OF THE OVERT ACTS
CHARGED WAS A CONVERSATION IN 1955 BETWEEN JEREMIAH PULLINGS AND ONE OF
PETITIONER'S CO-CONSPIRATORS UNDER THE SEPTEMBER 2, 1959, INDICTMENT. 
THESE 1954 AND 1955 TRANSACTIONS, FOR WHICH PETITIONER NOW STANDS
INDICTED, WERE ONES ON WHICH HE REFUSED TO TESTIFY AND FOR WHICH HE HAS
BEEN COMMITTED FOR CONTEMPT. 

ONCE AN INDICTMENT WAS RETURNED, THE PROCEEDINGS OF THIS GRAND JURY
BECAME A PART OF A CRIMINAL PROSECUTION DIRECTED AGAINST PETITIONER. 
COUNSELMAN V. HITCHCOCK.  142 U.S. 547, 562; UNITED STATES V. MONIA,
317 U.S. 424, 427.  WHEN THE CITIZEN IS FORMALLY ACCUSED BY INDICTMENT,
HE HAS A CONSTITUTIONAL RIGHT TO STAND MUTE AND TO REFUSE TO TESTIFY. 
HIS RIGHT NOT TO TAKE THE STAND IN A FEDERAL CRIMINAL TRIAL TRANSCENDS
HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  NO IMMUNITY STATUTE, NO
PRESSURE OF GOVERNMENT, NO THREATS OF THE PROSECUTION CAN BE USED TO
DEPRIVE THE CITIZEN OF THIS RIGHT.  SEE WILSON V. UNITED STATES, 149
U.S. 60; STEWART V. UNITED STATES, 366 U.S. 1.  AND IT IS UNTHINKABLE
THAT A DISTRICT JUDGE WOULD EVER HOLD A DEFENDANT IN CONTEMPT BECAUSE
HE REFUSED TO TAKE THE STAND AT HIS OWN TRIAL.  THE DISTRICT JUDGE DID
NO SUCH THING HERE.  BUT THAT WAS THE POSTURE OF THE CASE WHEN IT WAS
DECIDED BY THE COURT OF APPEALS.  FOR BY THEN THE MATTERS ABOUT WHICH
PETITIONER REFUSED TO ANSWER HAD BECOME IN FORM AND IN EFFECT AN
INDICTMENT AGAINST HIM. 

THERE IS NO POWER IN OUR FREE SOCIETY TO COMPEL A PERSON TO TALK
ABOUT A MATTER ON WHICH HE HAS BEEN INDICTED OR TO PENALIZE HIM FOR
FAILURE TO DO SO.  WE MIGHT AS WELL SAY THAT AN ACCUSED CAN BE
COMMITTED FOR CONTEMPT FOR FAILURE TO TAKE THE STAND AT HIS OWN TRIAL. 

WE ARE ADVISED THAT AFTER WE GRANTED CERTIORARI THE INDICTMENT
AGAINST PETITIONER WAS DISMISSED ON MOTION OF THE GOVERNMENT FOR LACK
OF EVIDENCE.  THAT SEEMS IRRELEVANT.  THE TRUTH IS THAT THE GRAND JURY
BEFORE WHICH PETITIONER WAS SUMMONED DID INDICT HIM.  PETITIONER WAS IN
FACT HELD IN CONTEMPT FOR REFUSAL TO TESTIFY IN A CRIMINAL PROCEEDING
AGAINST HIM.  THAT IS NOT PERMISSIBLE UNDER THE PROCEDURES OF OUR FREE
SOCIETY,  WHATEVER MAY HAVE BEEN THE ULTIMATE FATE OF THAT CRIMINAL
PROCEEDING. 

                                      II. 

I THINK THE IMPOSITION OF AN EIGHTEEN MONTHS' SENTENCE WAS BEYOND THE
POWER OF A FEDERAL COURT IN A SUMMARY PROCEEDING.  THAT WAS THE VIEW
STATED BY MR. JUSTICE BLACK IN HIS DISSENTING OPINION IN GREEN V.
UNITED STATES, 356 U.S. 165, 193, WITH WHICH I AGREED THEN AND STILL
AGREE.  THERE IS NOTHING I CAN FIND IN THE CONSTITUTION WHICH PERMITS
THOSE WHO DEFY A COURT'S DECREE TO BE TRIED IN ONE WAY AND THOSE WHO
DEFY A MANDATE OF THE CONGRESS (FN1) OR AN ORDER OF THE EXECUTIVE (FN2)
TO BE TRIED IN ANOTHER WAY.  WHATEVER THE CRIMINAL CHARGE MAY BE, AN
ACCUSED IS ENTITLED TO THE PROTECTIONS AFFORDED BY THE CONSTITUTION -
INDICTMENT BY A GRAND JURY AND TRIAL BEFORE A PETIT JURY WHICH SITS TO
DETERMINE GUILT.  DETERMINATION OF GUILT BY A JUDGE, WITHOUT THESE
SAFEGUARDS INTERPOSED BETWEEN THE ACCUSED AND GOVERNMENT, MARKS A
CONTINUING EROSION OF CIVIL RIGHTS.  THE EVIL IS COMPOUNDED HERE BY
REASON OF THE FACT THAT CONTEMPT IS USED TO INCREASE A PUNISHMENT
ALREADY IMPOSED FOR AN OFFENSE AS RESPECTS WHICH NO SECOND INDICTMENT
COULD EVER BE RETURNED.  CRIMINAL CONTEMPT IS USED TO UNDERMINE NOT
ONLY THE GUARANTEES OF AN INDICTMENT BY A GRAND JURY AND A TRIAL BY
ONE'S PEERS BUT ALSO TO DESTROY THE PROTECTION OF DOUBLE JEOPARDY. 

PLAINLY THIS JUDGMENT OF CONVICTION SHOULD NOT STAND. 

FN1  SEE WATKINS V. UNITED STATES, 354 U.S. 178. 

FN2  SEE HIRABAYASHI V. UNITED STATES, 320 U.S. 81; KOREMATSU V.
UNITED STATES, 323 U.S. 214. 
..END :






CULOMBE V. CONNECTICUT 367 U.S. 568 


NO. 161.  ARGUED JANUARY 19, 1961 - DECIDED JUNE 19, 1961 - 147 CONN.
194, 158 A.2D 239, REVERSED. 


PETITIONER, THEN A 33-YEAR-OLD ILLITERATE MENTAL DEFECTIVE OF THE
MORON CLASS WHO WAS SUGGESTIBLE AND SUBJECT TO INTIMIDATION, WAS TAKEN
INTO CUSTODY BY STATE POLICE OFFICERS ON SATURDAY AFTERNOON AND HELD
WITHOUT BENEFIT OF COUNSEL, THOUGH HE REQUESTED COUNSEL, WITHOUT THE
PROMPT ARRAIGNMENT REQUIRED BY STATE LAW, AND WITHOUT BEING ADVISED OF
HIS CONSTITUTIONAL RIGHTS.  HE WAS QUESTIONED INTERMITTENTLY BY POLICE
OFFICERS UNTIL WEDNESDAY NIGHT, WHEN, AFTER BEING UPSET BY SEEING HIS
WIFE AND SICK DAUGHTER AND BEING URGED BY HIS WIFE TO TELL THE TRUTH,
HE CONFESSED TO PARTICIPATION IN A HOLDUP IN WHICH TWO MEN WERE
MURDERED.  THIS CONFESSION WAS ADMITTED IN EVIDENCE OVER HIS TIMELY
OBJECTION AT HIS TRIAL IN A STATE COURT, AND HE WAS CONVICTED OF
MURDER.  HELD:  ON ALL THE CIRCUMSTANCES OF THIS RECORD, THIS
CONFESSION WAS NOT VOLUNTARY; ITS ADMISSION IN EVIDENCE DEPRIVED
PETITIONER OF DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT; AND HIS CONVICTION MUST BE SET ASIDE.  PP. 568-642. 

CULOMBE V. CONNECTICUT. 

CERTIORARI TO THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE STEWART JOINS. 

ONCE AGAIN THE COURT IS CONFRONTED WITH THE PAINFUL DUTY OF SITTING
IN JUDGMENT ON A STATE'S CONVICTION FOR MURDER, AFTER A JURY'S VERDICT
WAS FOUND FLAWLESS BY THE STATE'S HIGHEST COURT, IN ORDER TO DETERMINE
WHETHER THE DEFENDANT'S CONFESSIONS, DECISIVE FOR THE CONVICTION, WERE
ADMITTED INTO EVIDENCE IN ACCORDANCE WITH THE STANDARDS FOR
ADMISSIBILITY DEMANDED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THIS RECURRING PROBLEM TOUCHING THE ADMINISTRATION OF
CRIMINAL JUSTICE BY THE STATES PRESENTS IN AN AGGRAVATED FORM IN THIS
CASE THE ANXIOUS TASK OF RECONCILING THE RESPONSIBILITY OF THE POLICE
FOR FERRETING OUT CRIME WITH THE RIGHT OF THE CRIMINAL DEFENDANT,
HOWEVER GUILTY, TO BE TRIED ACCORDING TO CONSTITUTIONAL REQUIREMENTS. 

ON DECEMBER 15, 1956, THE DEAD BODIES OF TWO MEN WERE FOUND IN KURP'S
GASOLINE STATION IN NEW BRITAIN, CONNECTICUT.  EDWARD J. KURPIEWSKI,
THE PROPRIETOR, WAS FOUND IN THE BOILER ROOM WITH A BULLET IN HIS
HEAD.  DANIEL J. JANOWSKI, A CUSTOMER, WAS FOUND IN THE MEN'S TOILET
ROOM SHOT TWICE IN THE HEAD.  PARKED AT THE PUMPS IN FRONT OF THE
STATION WAS JANOWSKI'S CAR.  IN IT WAS JANOWSKI'S DAUGHTER, PHYSICALLY
UNHARMED.  SHE WAS THE ONLY SURVIVING EYEWITNESS OF WHAT HAD HAPPENED
AT THE STATION.  SHE WAS EIGHTEEN MONTHS OLD. 

THE KURP'S AFFAIR WAS ONE IN A SERIES OF HOLDUPS AND HOLDUP KILLINGS
THAT TERRIFIED THE OPERATORS OF GASOLINE STATIONS, PACKAGE STORES AND
SMALL SHOPS THROUGHOUT THE ENVIRONING CONNECTICUT AREA.  NEWSPAPERS AND
RADIO AND TELEVISION BROADCASTERS REPORTED EACH FRESH DEPREDATION OF
THE "MAD KILLERS."  AT HARTFORD, THE STATE POLICE WERE AT WORK
INVESTIGATING THE CRIMES, APPARENTLY WITH LITTLE EVIDENCE TO GO ON.  AT
THE SCENE OF THE KILLINGS OF KURPIEWSKI AND JANOWSKI NO PHYSICAL CLUES
WERE DISCOVERED.  (FN1)  THE BULLET SLUGS REMOVED FROM THE BRAINS OF
THE TWO VICTIMS WERE SPLIT AND DAMAGED. 

IN THE LAST WEEK OF FEBRUARY 1957, FOR REASONS WHICH DO NOT APPEAR IN
THIS RECORD, SUSPICION IN CONNECTION WITH AT LEAST TWO OF THE HOLDUPS
UNDER INVESTIGATION, HOLDUPS OF A COUNTRY STORE IN COVENTRY AND OF A
PACKAGE STORE IN ROCKY HILL, FOCUSED ON TWO FRIENDS, ARTHUR CULOMBE AND
JOSEPH TABORSKY.  ON THE AFTERNOON OF FEBRUARY 23, THE TWO WERE
ACCOSTED BY TEAMS OF OFFICERS AND ASKED TO COME TO STATE POLICE
HEADQUARTERS.  THEY WERE NEVER AGAIN OUT OF POLICE CUSTODY.  IN THE
HEADQUARTERS' INTERROGATION ROOM AND ELSEWHERE, THEY WERE QUESTIONED
ABOUT THE COVENTRY AND ROCKY HILL HOLDUPS, KURP'S, AND OTHER MATTERS. 
WITHIN TEN DAYS CULOMBE HAD FIVE TIMES CONFESSED ORALLY TO
PARTICIPATION IN THE KURP'S GASOLINE STATION AFFAIR - ONCE RE-ENACTING
THE HOLDUP FOR THE POLICE - AND HAD SIGNED THREE TYPED STATEMENTS
INCRIMINATING HIMSELF AND TABORSKY IN THE KURP'S KILLINGS.  TABORSKY
ALSO CONFESSED. 

THE TWO WERE INDICTED AND TRIED JOINTLY FOR MURDER IN THE FIRST
DEGREE BEFORE A JURY IN THE SUPERIOR COURT AT HARTFORD.  CERTAIN OF
THEIR ORAL AND WRITTEN STATEMENTS WERE PERMITTED TO GO TO THE JURY OVER
THEIR TIMELY OBJECTIONS THAT THESE HAD BEEN EXTRACTED FROM THEM BY
POLICE METHODS WHICH MADE THE CONFESSIONS INADMISSIBLE CONSISTENTLY
WITH THE FOURTEENTH AMENDMENT.  BOTH MEN WERE CONVICTED OF FIRST-DEGREE
MURDER AND THEIR CONVICTIONS AFFIRMED BY THE SUPREME COURT OF ERRORS. 
147 CONN. 194, 158 A.2D 239.  ONLY CULOMBE SOUGHT REVIEW BY THIS
COURT.  BECAUSE HIS PETITION FOR CERTIORARI PRESENTED SERIOUS QUESTIONS
CONCERNING THE LIMITATIONS IMPOSED BY THE FEDERAL DUE PROCESS CLAUSE
UPON THE INVESTIGATIVE ACTIVITIES OF STATE CRIMINAL LAW ENFORCEMENT
OFFICIALS, WE ISSUED THE WRIT.  363 U.S. 826. 

                                        I. 

THE OCCASION WHICH IN DECEMBER 1956 CONFRONTED THE CONNECTICUT STATE
POLICE WITH TWO CORPSES AND AN INFANT AS THEIR SOLE INFORMANTS TO A
CRIME OF COMMUNITY-DISTURBING VIOLENCE IS NOT A RARE ONE.  DESPITE
MODERN ADVANCES IN THE TECHNOLOGY OF CRIME DETECTION, OFFENSES
FREQUENTLY OCCUR ABOUT WHICH THINGS CANNOT BE MADE TO SPEAK.  AND WHERE
THERE CANNOT BE FOUND INNOCENT HUMAN WITNESSES TO SUCH OFFENSES,
NOTHING REMAINS - IF POLICE INVESTIGATION IS NOT TO BE BALKED BEFORE IT
HAS FAIRLY BEGUN - BUT TO SEEK OUT POSSIBLY GUILTY WITNESSES AND ASK
THEM QUESTIONS, WITNESSES, THAT IS, WHO ARE SUSPECTED OF KNOWING
SOMETHING ABOUT THE OFFENSE PRECISELY BECAUSE THEY ARE SUSPECTED OF
IMPLICATION IN IT. 

THE QUESTIONS WHICH THESE SUSPECTED WITNESSES ARE ASKED MAY SERVE TO
CLEAR THEM.  THEY MAY SERVE, DIRECTLY OR INDIRECTLY, TO LEAD THE POLICE
TO OTHER SUSPECTS THAN THE PERSONS QUESTIONED.  OR THEY MAY BECOME THE
MEANS BY WHICH THE PERSONS QUESTIONED ARE THEMSELVES MADE TO FURNISH
PROOFS WHICH WILL EVENTUALLY SEND THEM TO PRISON OR DEATH.  IN ANY
EVENT, WHATEVER ITS OUTCOME, SUCH QUESTIONING IS OFTEN INDISPENSABLE TO
CRIME DETECTION.  ITS COMPELLING NECESSITY HAS BEEN JUDICIALLY
RECOGNIZED AS ITS SUFFICIENT JUSTIFICATION, EVEN IN A SOCIETY WHICH,
LIKE OURS, STANDS STRONGLY AND CONSTITUTIONALLY COMMITTED TO THE
PRINCIPLE THAT PERSONS ACCUSED OF CRIME CANNOT BE MADE TO CONVICT
THEMSELVES OUT OF THEIR OWN MOUTHS. 

BUT PERSONS WHO ARE SUSPECTED OF CRIME WILL NOT ALWAYS BE UNRELUCTANT
TO ANSWER QUESTIONS PUT BY THE POLICE.  SINCE UNDER THE PROCEDURES OF
ANGLO-AMERICAN CRIMINAL JUSTICE THEY CANNOT BE CONSTRAINED BY LEGAL
PROCESS TO GIVE ANSWERS WHICH INCRIMINATE THEM, THE POLICE HAVE
RESORTED TO OTHER MEANS TO UNBEND THEIR RELUCTANCE, LEST CRIMINAL
INVESTIGATION FOUNDER.  (FN2)  KINDNESS, CAJOLERY, ENTREATY, DECEPTION,
PERSISTENT CROSS-QUESTIONING, EVEN PHYSICAL BRUTALITY HAVE BEEN USED TO
THIS END.  (FN3)  IN THE UNITED STATES, "INTERROGATION" HAS BECOME A
POLICE TECHNIQUE, (FN4) AND DETENTION FOR PURPOSES OF INTERROGATION A
COMMON, ALTHOUGH GENERALLY UNLAWFUL, PRACTICE.  (FN5) CRIME DETECTION
OFFICIALS, FINDING THAT IF THEIR SUSPECTS ARE KEPT UNDER TIGHT POLICE
CONTROL DURING QUESTIONING THEY ARE LESS LIKELY TO BE DISTRACTED, LESS
LIKELY TO BE RECALCITRANT AND, OF COURSE, LESS LIKELY TO MAKE OFF AND
ESCAPE ENTIRELY, NOT INFREQUENTLY TAKE SUCH SUSPECTS INTO CUSTODY FOR
"INVESTIGATION." 

THIS PRACTICE HAS ITS MANIFEST EVILS AND DANGERS.  PERSONS SUBJECTED
TO IT ARE TORN FROM THE RELIANCES OF THEIR DAILY EXISTENCE AND HELD AT
THE MERCY OF THOSE WHOSE JOB IT IS - IF SUCH PERSONS HAVE COMMITTED
CRIMES, AS IT IS SUPPOSED THEY HAVE - TO PROSECUTE THEM.  THEY ARE
DEPRIVED OF FREEDOM WITHOUT A PROPER JUDICIAL TRIBUNAL HAVING FOUND
THEM GUILTY, WITHOUT A PROPER JUDICIAL TRIBUNAL HAVING FOUND EVEN THAT
THERE IS PROBABLE CAUSE TO BELIEVE THAT THEY MAY BE GUILTY.  (FN6) WHAT
ACTUALLY HAPPENS TO THEM BEHIND THE CLOSED DOOR OF THE INTERROGATION
ROOM IS DIFFICULT IF NOT IMPOSSIBLE TO ASCERTAIN.  CERTAINLY, IF
THROUGH EXCESS OF ZEAL OR AGGRESSIVE IMPATIENCE OR FLARING UP OF TEMPER
IN THE FACE OF OBSTINATE SILENCE A PRISONER IS ABUSED, (FN7) HE IS
FACED WITH THE TASK OF OVERCOMING, BY HIS LONE TESTIMONY, SOLEMN
OFFICIAL DENIALS.  (FN8)  THE PRISONER KNOWS THIS - KNOWS THAT NO
FRIENDLY OR DISINTERESTED WITNESS IS PRESENT - AND THE KNOWLEDGE MAY
ITSELF INDUCE FEAR.  (FN9)  BUT, IN ANY CASE, THE RISK IS GREAT THAT
THE POLICE WILL ACCOMPLISH BEHIND THEIR CLOSED DOOR PRECISELY WHAT THE
DEMANDS OF OUR LEGAL ORDER FORBID: MAKE A SUSPECT THE UNWILLING
COLLABORATOR IN ESTABLISHING HIS GUILT.  THIS THEY MAY ACCOMPLISH NOT
ONLY WITH ROPES AND A RUBBER HOSE, NOT ONLY BY RELAY QUESTIONING
PERSISTENTLY, INSISTENTLY SUBJUGATING A TIRED MIND, BUT BY SUBTLER
DEVICES. 

IN THE POLICE STATION A PRISONER IS SURROUNDED BY KNOWN HOSTILE
FORCES.  HE IS DISORIENTED FROM THE WORLD HE KNOWS AND IN WHICH HE
FINDS SUPPORT.  (FN10)  HE IS SUBJECT TO COERCING IMPINGEMENTS,
UNDERMINING EVEN IF NOT OBVIOUS PRESSURES OF EVERY VARIETY.  IN SUCH AN
ATMOSPHERE, QUESTIONING THAT IS LONG CONTINUED - EVEN IF IT IS ONLY
REPEATED AT INTERVALS, NEVER PROTRACTED TO THE POINT OF PHYSICAL
EXHAUSTION - INEVITABLY SUGGESTS THAT THE QUESTIONER HAS A RIGHT TO,
AND EXPECTS, AN ANSWER.  (FN11)  THIS IS SO, CERTAINLY, WHEN THE
PRISONER HAS NEVER BEEN TOLD THAT HE NEED NOT ANSWER AND WHEN, BECAUSE
HIS COMMITMENT TO CUSTODY SEEMS TO BE AT THE WILL OF HIS QUESTIONERS,
HE HAS EVERY REASON TO BELIEVE THAT HE WILL BE HELD AND INTERROGATED
UNTIL HE SPEAKS.  (FN12) 

HOWEVER, A CONFESSION MADE BY A PERSON IN CUSTODY IS NOT ALWAYS THE
RESULT OF AN OVERBORNE WILL.  THE POLICE MAY BE MIDWIFE TO A
DECLARATION NATURALLY BORN OF REMORSE, OR RELIEF, OR DESPERATION, OR
CALCULATION.  IF THAT IS SO, IF THE "SUCTION PROCESS" (FN13) HAS NOT
BEEN AT THE PRISONER AND DRAINED HIS CAPACITY FOR FREEDOM OF CHOICE,
DOES NOT THE AWFUL RESPONSIBILITY OF THE POLICE FOR MAINTAINING THE
PEACEFUL ORDER OF SOCIETY JUSTIFY THE MEANS WHICH THEY HAVE EMPLOYED? 
IT WILL NOT DO TO FORGET, AS SIR PATRICK (NOW LORD JUSTICE) DEVLIN HAS
PUT IT, THAT "THE LEAST CRITICISM OF POLICE METHODS OF INTERROGATION
DESERVES TO BE MOST CAREFULLY WEIGHED BECAUSE THE EVIDENCE WHICH SUCH
INTERROGATION PRODUCES IS OFTEN DECISIVE; THE HIGH DEGREE OF PROOF
WHICH THE ENGLISH LAW REQUIRES - PROOF BEYOND REASONABLE DOUBT - OFTEN
COULD NOT BE ACHIEVED BY THE PROSECUTION WITHOUT THE ASSISTANCE OF THE
ACCUSED'S OWN STATEMENT."  (FN14  YET EVEN IF ONE CANNOT ADOPT "AN
UNDISCRIMINATING HOSTILITY TO MERE INTERROGATION  ...  WITHOUT UNDULY
FETTERING THE STATES IN PROTECTING SOCIETY FROM THE CRIMINAL," (FN15)
THERE REMAIN THE QUESTIONS:  WHEN, APPLIED TO WHAT PRACTICES, IS A
JUDGMENT OF IMPERMISSIBILITY DRAWN FROM THE FUNDAMENTAL CONCEPTIONS OF
ANGLO-AMERICAN ACCUSATORIAL PROCESS "UNDISCRIMINATING?"  WHAT ARE THE
CHARACTERISTICS OF THE "MERE INTERROGATION" WHICH IS ALLOWABLE
CONSISTENTLY WITH THOSE CONCEPTIONS? 

                                     II. 

THE PROBLEM WHICH MUST BE FACED IN FAIR RECOGNITION OF THE STATES'
BASIC SECURITY AND OF THE STATES' OBSERVANCE OF THEIR OWN STANDARDS,
APART FROM THE SANCTIONS OF THE FOURTEENTH AMENDMENT, IN BRINGING THE
GUILTY TO JUSTICE IS THAT WHICH MR. JUSTICE JACKSON DESCRIBED IN
DEALING WITH THREE CASES BEFORE US: 

"IN EACH CASE POLICE WERE CONFRONTED WITH ONE OR MORE BRUTAL MURDERS
WHICH THE AUTHORITIES WERE UNDER THE HIGHEST DUTY TO SOLVE.  EACH OF
THESE MURDERS WAS UNWITNESSED, AND THE ONLY POSITIVE KNOWLEDGE ON WHICH
A SOLUTION COULD BE BASED WAS POSSESSED BY THE KILLER.  IN EACH THERE
WAS REASONABLE GROUND TO SUSPECT AN INDIVIDUAL BUT NOT ENOUGH LEGAL
EVIDENCE TO CHARGE HIM WITH GUILT.  IN EACH THE POLICE ATTEMPTED TO
MEET THE SITUATION BY TAKING THE SUSPECT INTO CUSTODY AND INTERROGATING
HIM  ...  . 

"  ...  NO ONE SUGGESTS THAT ANY COURSE HELD PROMISE OF SOLUTION OF
THESE MURDERS OTHER THAN TO TAKE THE SUSPECT INTO CUSTODY FOR
QUESTIONING.  THE ALTERNATIVE WAS TO CLOSE THE BOOKS ON THE CRIME AND
FORGET IT, WITH THE SUSPECT AT LARGE.  THIS IS A GRAVE CHOICE FOR A
SOCIETY IN WHICH TWO-THIRDS OF THE MURDERS ALREADY ARE CLOSED OUT AS
INSOLUBLE. 

     *         *         *         *   * 

"  ...  THE SUSPECT NEITHER HAD NOR WAS ADVISED OF HIS RIGHT TO GET
COUNSEL.  THIS PRESENTS A REAL DILEMMA IN A FREE SOCIETY.  TO SUBJECT
ONE WITHOUT COUNSEL TO QUESTIONING WHICH MAY AND IS INTENDED TO CONVICT
HIM, IS A REAL PERIL TO INDIVIDUAL FREEDOM.  TO BRING IN A LAWYER MEANS
A REAL PERIL TO SOLUTION OF THE CRIME, BECAUSE, UNDER OUR ADVERSARY
SYSTEM, HE DEEMS THAT HIS SOLE DUTY IS TO PROTECT HIS CLIENT - GUILTY
OR INNOCENT - AND THAT IS SUCH A CAPACITY HE OWES NO DUTY WHATEVER TO
HELP SOCIETY SOLVE ITS CRIME PROBLEM.  UNDER THIS CONCEPTION OF
CRIMINAL PROCEDURE, ANY LAWYER WORTH HIS SALT WILL TELL THE SUSPECT IN
NO UNCERTAIN TERMS TO MAKE NO STATEMENT TO POLICE UNDER ANY
CIRCUMSTANCES."  WATTS V. INDIANA, 338 U.S. 49, 57, 58-59. 

THE NATURE AND COMPONENTS OF THIS PROBLEM, CONCERNING AS IT DOES
LIBERTY AND SECURITY, HAD BETTER BE OVERTLY AND CRITICALLY EXAMINED
THAN SMOTHERED BY UNANALYZED ASSUMPTIONS.  THAT JUDGES WHO AGREE ON
RELATIVELY LEGAL CONSIDERATIONS MAY DISAGREE IN THEIR APPLICATION TO
THE SAME SET OF CIRCUMSTANCES DOES NOT WEAKEN THE VALIDITY OF THOSE
CONSIDERATIONS NOR MINIMIZE THEIR IMPORTANCE.  DIFFERENCES IN THE
APPRAISAL OF THE SAME FACTS IS A COMMONPLACE OF ADJUDICATION. 

THE CRITICAL ELEMENTS OF THE PROBLEM MAY BE QUICKLY ISOLATED IN LIGHT
OF WHAT HAS ALREADY BEEN SAID.  ITS FIRST POLE IS THE RECOGNITION THAT
"QUESTIONING SUSPECTS IS INDISPENSABLE IN LAW ENFORCEMENT."  (FN16)  AS
THE SUPREME COURT OF NEW JERSEY PUT IT RECENTLY:  "THE PUBLIC INTEREST
REQUIRES THAT INTERROGATION, AND THAT AT A POLICE STATION, NOT
COMPLETELY BE FORBIDDEN, SO LONG AS IT IS CONDUCTED FAIRLY, REASONABLY,
WITHIN PROPER LIMITS AND WITH FULL REGARD TO THE RIGHTS OF THOSE BEING
QUESTIONED."  (FN17)  BUT IF IT IS ONCE ADMITTED THAT QUESTIONING OF
SUSPECTS IS PERMISSIBLE, WHATEVER REASONABLE MEANS ARE NEEDED TO MAKE
THE QUESTIONING EFFECTIVE MUST ALSO BE CONCEDED TO THE POLICE.  OFTEN
PROLONGATION OF THE INTERROGATION PERIOD WILL BE ESSENTIAL, SO THAT A
SUSPECT'S STORY CAN BE CHECKED AND, IF IT PROVES UNTRUE, HE CAN BE
CONFRONTED WITH THE LIE; IF TRUE, RELEASED WITHOUT CHARGE.  (FN18)
OFTEN THE PLACE OF QUESTIONING WILL HAVE TO BE A POLICE INTERROGATION
ROOM, BOTH BECAUSE IT IS IMPORTANT TO ASSURE THE PROPER ATMOSPHERE OF
PRIVACY AND NON-DISTRACTION IF QUESTIONING IS TO BE MADE PRODUCTIVE,
(FN19) AND BECAUSE, WHERE A SUSPECT IS QUESTIONED BUT NOT TAKEN INTO
CUSTODY, HE - AND IN SOME CASES HIS ASSOCIATES - MAY TAKE PROMPT
WARNING AND FLEE THE PREMISES.  LEGAL COUNSEL FOR THE SUSPECT WILL
GENERALLY PROVE A THOROUGH OBSTRUCTION TO THE INVESTIGATION.  (FN20)
INDEED, EVEN TO INFORM THE SUSPECT OF HIS LEGAL RIGHT TO KEEP SILENT
WILL PROVE AN OBSTRUCTION.  WHATEVER FORTIFIES THE SUSPECT OR SECONDS
HIM IN HIS CAPACITY TO KEEP HIS MOUTH CLOSED IS A POTENTIAL OBSTACLE TO
THE SOLUTION OF CRIME.    AT THE OTHER POLE IS A CLUSTER OF CONVICTIONS
EACH EXPRESSIVE, IN A DIFFERENT MANIFESTATION, OF THE BASIC NOTION THAT
THE TERRIBLE ENGINE OF THE CRIMINAL LAW IS NOT TO BE USED TO OVERREACH
INDIVIDUALS WHO STAND HELPLESS AGAINST IT.  (FN21)  AMONG THESE ARE THE
NOTIONS THAT MEN ARE NOT TO BE IMPRISONED AT THE UNFETTERED WILL OF
THEIR PROSECUTORS, NOR SUBJECTED TO PHYSICAL BRUTALITY BY OFFICIALS
CHARGED WITH THE INVESTIGATION OF CRIME.  CARDINAL AMONG THEM, ALSO, IS
THE CONVICTION, BASIC TO OUR LEGAL ORDER, THAT MEN ARE NOT TO BE
EXPLOITED FOR THE INFORMATION NECESSARY TO CONDEMN THEM BEFORE THE LAW,
THAT, IN HAWKINS' WORDS, A PRISONER IS NOT " TO BE MADE THE DELUDED
INSTRUMENT OF HIS OWN CONVICTION."  2 HAWKINS, PLEAS OF THE CROWN (8TH
ED. 1824), 595.  THIS PRINCIPLE, BRANDED INTO THE CONSCIOUSNESS OF OUR
CIVILIZATION BY THE MEMORY OF THE SECRET INQUISITIONS, SOMETIMES
PRACTICED WITH TORTURE, WHICH WERE BORROWED BRIEFLY FROM THE CONTINENT
DURING THE ERA OF THE STAR CHAMBER, (FN22) WAS WELL KNOWN TO THOSE WHO
ESTABLISHED THE AMERICAN GOVERNMENTS.  (FN23)  ITS ESSENCE IS THE
REQUIREMENT THAT THE STATE WHICH PROPOSES TO CONVICT AND PUNISH AN
INDIVIDUAL PRODUCE THE EVIDENCE AGAINST HIM BY THE INDEPENDENT LABOR OF
ITS OFFICERS, NOT BY THE SIMPLE, CRUEL EXPEDIENT OF FORCING IT FROM HIS
OWN LIPS.  SEE BLACKBURN V. ALABAMA, 361 U.S. 199, 206-207; CHAMBERS V.
FLORIDA, 309 U.S. 227, 235-238.  QUITE EARLY THE ENGLISH COURTS
ACKNOWLEDGED THE BARRIER THAT, IN THIS REGARD, SET OFF THE ACCUSATORIAL
SYSTEM FROM THE INQUISITORIAL.  (FN24)  AND SOON THEY CAME TO ENFORCE
IT BY THE RIGOROUS DEMAND THAT AN EXTRA-JUDICIAL CONFESSION, IF IT WAS
TO BE OFFERED IN EVIDENCE AGAINST A MAN, MUST BE THE PRODUCT OF HIS OWN
FREE CHOICE.  (FN25)  SO FUNDAMENTAL, HISTORICALLY, IS THIS CONCEPT,
THAT THE FOURTEENTH AMENDMENT, AS ENFORCED BY OUR DECISIONS, APPLIED IT
AS A LIMITATION UPON THE CRIMINAL PROCEDURE OF THE STATES. 
CONSISTENTLY WITH THAT AMENDMENT NEITHER THE BODY NOR MIND OF AN
ACCUSED MAY BE TWISTED UNTIL HE BREAKS.  BROWN V. MISSISSIPPI, 297 U.S.
278; LEYRA V. DENNO, 347 U.S. 556. 

RECOGNIZING THE NEED TO PROTECT CRIMINAL SUSPECTS FROM ALL OF THE
DANGERS WHICH ARE TO BE FEARED WHEN THE PROCESS OF POLICE INTERROGATION
IS ENTIRELY UNLEASHED, LEGISLATURES HAVE ENACTED SEVERAL KINDS OF LAWS
DESIGNED TO CURB THE WORST EXCESSES OF THE INVESTIGATIVE ACTIVITY OF
THE POLICE.  THE MOST WIDESPREAD OF THESE ARE THE UBIQUITOUS STATUTES
REQUIRING THE PROMPT TAKING OF PERSONS ARRESTED BEFORE A JUDICIAL
OFFICER; (FN26) THESE ARE RESPONSIVE BOTH TO THE FEAR OF ADMINISTRATIVE
DETENTION WITHOUT PROBABLE CAUSE AND TO THE KNOWN RISK OF OPPORTUNITY
FOR THIRD-DEGREE PRACTICES WHICH IS ALLOWED BY DELAYED JUDICIAL
EXAMINATION.  (FN27) OTHER STATUTES OUTLAW THE SWEATING, BEATING OR
IMPRISONMENTS OF SUSPECTS FOR THE PURPOSE OF EXTORTING CONFESSIONS,
(FN28) OR ASSURE IMPRISONED SUSPECTS THE RIGHT TO COMMUNICATE WITH
FRIENDS OR LEGAL COUNSEL.  (FN29)  BUT BECAUSE IT IS THE COURTS WHICH
ARE CHARGED, IN THE ULTIMATE, BOTH WITH THE ENFORCEMENT OF THE CRIMINAL
LAW AND WITH SAFEGUARDING THE CRIMINAL DEFENDANT'S RIGHTS TO PROCEDURES
CONSISTENT WITH FUNDAMENTAL FAIRNESS, THE PROBLEM OF RECONCILING
SOCIETY'S NEED FOR POLICE INTERROGATION WITH SOCIETY'S NEED FOR
PROTECTION FROM THE POSSIBLE ABUSES OF POLICE INTERROGATION DECISIVELY
DEVOLVES UPON THE COURTS, PARTICULARLY IN CONNECTION WITH THE RULES OF
EVIDENCE WHICH REGULATE THE ADMISSIBILITY OF EXTRAJUDICIAL
CONFESSIONS.  UNDER OUR FEDERAL SYSTEM THIS TASK, WITH RESPECT TO LOCAL
CRIMES, IS, OF COURSE, PRIMARILY THE RESPONSIBILITY OF THE STATE
COURTS.  THE FOURTEENTH AMENDMENT, HOWEVER, LIMITS THEIR FREEDOM IN
THIS REGARD.  IT SUBJECTS THEIR BROAD POWERS TO A LIMITED, BUT
SEARCHING, FEDERAL REVIEW AND PLACES UPON THIS COURT THE OBLIGATION -
WITH ALL THE DEFERENCE AND CAUTION WHICH EXERCISE OF SUCH A COMPETENCE
DEMANDS - TO ADJUDICATE WHAT DUE PROCESS OF LAW REQUIRES BY WAY OF
RESTRICTING THE STATE COURTS IN THEIR USE OF THE PRODUCTS OF POLICE
INTERROGATION. 

THAT JUDGMENT IS WHAT IS AT ISSUE IN THIS CASE. 

                                      III. 

THE DILEMMA POSED BY POLICE INTERROGATION OF SUSPECTS IN CUSTODY AND
THE JUDICIAL USE OF INTERROGATED CONFESSIONS TO CONVICT THEIR MAKERS
CANNOT BE RESOLVED SIMPLY BY WHOLLY SUBORDINATING ONE SET OF OPPOSING
CONSIDERATIONS TO THE OTHER.  THE ARGUMENT THAT WITHOUT SUCH
INTERROGATION IT IS OFTEN IMPOSSIBLE TO CLOSE THE HIATUS BETWEEN
SUSPICION AND PROOF, ESPECIALLY IN CASES INVOLVING PROFESSIONAL
CRIMINALS, IS OFTEN PRESSED IN QUARTERS RESPONSIBLE AND NOT UNFEELING. 
IT IS THE SAME ARGUMENT THAT WAS ONCE INVOKED TO SUPPORT THE LASH AND
THE RACK.  (FN30)  WHERE IT HAS BEEN PUT TO THIS COURT IN ITS EXTREME
FORM, AS JUSTIFYING THE ALL-NIGHT GRILLING OF PRISONERS UNDER
CIRCUMSTANCES OF SUSTAINED, WEEK-LONG TERROR, WE HAVE REJECTED IT.
CHAMBERS V. FLORIDA, 309 U.S. 227, 240-241.  "THE CONSTITUTION
PROSCRIBES SUCH LAWLESS MEANS IRRESPECTIVE OF THE END." 

BUT ASKING QUESTIONS IS NOT THE LASH OR THE RACK, AND TO SAY THAT THE
ARGUMENT EX NECESSITATE IS NOT THE SHORT ANSWER TO EVERY SITUATION IN
WHICH IT IS INVOKED IS NOT TO DISMISS IT ALTOGETHER.  DUE PROCESS DOES
NOT DEMAND OF THE STATES, IN THEIR ADMINISTRATION OF THE CRIMINAL LAW,
STANDARDS OF FAVOR TO THE ACCUSED WHICH OUR CIVILIZATION, IN ITS MOST
SENSITIVE EXPRESSION, HAS NEVER FOUND IT PRACTICAL TO ADOPT.  THE
PRINCIPLE OF THE INDIAN EVIDENCE ACT WHICH EXCLUDES ALL CONFESSIONS
MADE TO THE POLICE OR BY PERSONS WHILE THEY ARE DETAINED BY THE POLICE
(FN31) HAS NEVER BEEN ACCEPTED IN ENGLAND (FN32) OR IN THIS COUNTRY. 
(FN33)  NOR HAS THE PRINCIPLE OF THE SCOTTISH CASES BARRING THE USE IN
EVIDENCE OF A DEFENDANT'S INCRIMINATING RESPONSES TO POLICE QUESTIONING
AT ANY TIME AFTER SUSPICION HAS FOCUSED ON HIM.  (FN34)  RATHER, THIS
COURT (IN CASES COMING HERE FROM THE LOWER FEDERAL COURTS), (FN35) THE
COURTS OF ENGLAND (FN36) AND OF CANADA, (FN37) AND THE COURTS OF ALL
THE STATES (FN38) HAVE AGREED IN HOLDING PERMISSIBLE THE RECEIPT OF
CONFESSIONS SECURED BY THE QUESTIONING OF SUSPECTS IN CUSTODY BY CRIME
DETECTION OFFICIALS.  AND, IN A LONG SERIES OF CASES, THIS COURT HAS
HELD THAT THE FOURTEENTH AMENDMENT DOES NOT PROHIBIT A STATE FROM SUCH
DETENTION AND EXAMINATION OF A SUSPECT AS, UNDER ALL THE CIRCUMSTANCES,
IS FOUND NOT TO BE COERCIVE.  SEE LISENBA V. CALIFORNIA, 314 U.S. 219;
LYONS V. OKLAHOMA, 322 U.S. 596; GALLEGOS V. NEBRASKA, 342 U.S. 55;
BROWN V. ALLEN, 344 U.S. 443; STEIN V. NEW YORK, 346 U.S. 156, 184;
CROOKER V. CALIFORNIA, 357 U.S. 433; CICENIA V. LAGAY, 357 U.S. 504. 
AND SEE TOWNSEND V. BURKE, 334 U.S. 736, 738. 

IT IS TRUE THAT THE ENGLISH COURTS HAVE LONG TENDED SEVERELY TO
DISCOURAGE LAW ENFORCEMENT OFFICERS FROM ASKING QUESTIONS OF PERSONS
UNDER ARREST OR WHO ARE SO FAR SUSPECTED THAT THEIR ARREST IS
IMMINENT.  THE JUDGES HAVE MANY TIMES DEPRECATED THE PRACTICE EVEN
WHILE RECEIVING IN EVIDENCE THE CONFESSIONS IT HAS PRODUCED.  (FN39)
THE MANUAL KNOWN AS THE JUDGES' RULES, FIRST ISSUED IN 1912, AUGMENTED
IN 1918, AND CLARIFIED BY A HOME OFFICER CIRCULAR PUBLISHED IN 1930,
EMBODIES THE ATTITUDE OF THE ENGLISH BENCH IN THIS REGARD.  (FN40)
WHILE ENCOURAGING POLICE OFFICERS TO PUT QUESTIONS TO ALL POSSIBLY
INFORMED PERSONS, WHETHER OR NOT SUSPECTED, DURING THE EARLY PHASE OF
THEIR INVESTIGATION WHICH AIMS AT DISCOVERING WHO COMMITTED THE
OFFENSE, THE RULES ADMONISH THAT SO SOON AS THE OFFICERS MAKE UP THEIR
MINDS TO CHARGE A PARTICULAR PERSON WITH A CRIME, THEY SHOULD CAUTION
HIM, FIRST, THAT HE NEED SAY NOTHING AND, SECOND, THAT WHAT HE SAYS MAY
BE USED IN EVIDENCE, BEFORE QUESTIONING HIM OR QUESTIONING HIM
FURTHER.  PERSONS IN CUSTODY ARE NOT TO BE QUESTIONED, EXCEPT THAT WHEN
A PRISONER, HAVING BEEN CAUTIONED, VOLUNTEERS A STATEMENT, SUCH
QUESTIONS MAY BE ASKED AS ARE FAIRLY NEEDED TO REMOVE AMBIGUITIES, SO
LONG AS THE QUESTIONER DOES NOT SEEK TO ELICIT INFORMATION BEYOND THE
SCOPE OF WHAT THE PRISONER HAS OFFERED.  IF TWO OR MORE PERSONS ARE
CHARGED WITH AN OFFENSE AND THE POLICE HAVE TAKEN THE STATEMENT OF ONE
OF THEM, COPIES MAY BE FURNISHED TO THE OTHERS BUT NOTHING SHOULD BE
SAID OR DONE TO INVITE A REPLY.  (FN41)  THE JUDGES' RULES ARE NOT
"LAW" IN THE SENSE THAT ANY VIOLATION OF THEM BY A QUESTIONING OFFICER
EO IPSO RENDERS INADMISSIBLE IN EVIDENCE WHATEVER INCRIMINATORY
RESPONSES HE MAY OBTAIN.  (FN42)  BUT IT IS CLEAR THAT THE JUDGES
PRESIDING AT CRIMINAL TRIALS HAVE BROAD DISCRETION TO EXCLUDE ANY
CONFESSION PROCURED BY METHODS WHICH OFFEND AGAINST THE LETTER OR THE
SPIRIT OF THE RULES, (FN43) AND VIOLATIONS HAVE IN A FEW INSTANCES
SEEMED TO INFLUENCE, ALTHOUGH NOT TO CONTROL, THE JUDGMENT OF THE COURT
OF CRIMINAL APPEAL IN QUASHING CONVICTIONS.  (FN44)  FOR THESE REASONS,
AND BECAUSE OF THE RESPECT WHICH ATTACHES TO THE RULES IN VIEW OF THEIR
SOURCE, THEY HAVE DOUBTLESS HAD A PERVASIVE EFFECT UPON ACTUAL POLICE
PRACTICES, AND THEY APPEAR TO BE REGARDED BY THE CONSTABULARY AS A MORE
OR LESS INFRANGIBLE CODE.  (FN45)  INASMUCH AS THE SAME CONCEPTION IS
SHARED BY COUNSEL FOR THE CROWN, THE CONTEMPORARY ENGLISH REPORTS DO
NOT DISCLOSE CASES INVOLVING THE SORT OF CLAIMS OF COERCION SO
FREQUENTLY LITIGATED IN OUR COURTS.  IT MAY WELL BE THAT THEIR
CIRCUMSTANCES SELDOM ARISE; (FN46) WHEN THEY DO, THE CROWN DOES NOT
OFFER THE CONFESSION' IF IT WERE OFFERED - IN A CASE, FOR EXAMPLE,
WHERE SEVERAL HOURS OF QUESTIONING COULD BE SHOWN - THE TRIAL JUDGE
WOULD ALMOST CERTAINLY EXCLUDE IT.  (FN47) 

THIS PRINCIPLE BY WHICH THE ENGLISH TRIAL JUDGES HAVE SUPPLEMENTED
THE TRADITIONAL ANGLO-AMERICAN RULE THAT CONFESSIONS ARE ADMISSIBLE IF
VOLUNTARY, BY THE EXERCISE OF A DISCRETION TO EXCLUDE INCRIMINATING
STATEMENTS PROCURED BY METHODS DEEMED OPPRESSIVE ALTHOUGH NOT DEEMED
FUNDAMENTALLY INCONSISTENT WITH ACCUSATORIAL CRIMINAL PROCEDURE, (FN48)
HAS NOT BEEN IMITATED IN THE UNITED STATES.  (FN49)  IN 1943 THIS
COURT, IN MCNABB V. UNITED STATES, 318 U.S. 332, DREW UPON ITS
SUPERVISORY AUTHORITY OVER THE ADMINISTRATION OF FEDERAL CRIMINAL
JUSTICE TO INAUGURATE AN EXCLUSIONARY PRACTICE CONSIDERABLY LESS
STRINGENT THAN THE ENGLISH.  THAT PRACTICE REQUIRES THE EXCLUSION OF
ANY CONFESSION "MADE DURING ILLEGAL DETENTION DUE TO FAILURE PROMPTLY
TO CARRY A PRISONER BEFORE A COMMITTING MAGISTRATE, WHETHER OR NOT THE
'CONFESSION IS THE RESULT OF TORTURE, PHYSICAL OR PSYCHOLOGICAL  ...
.'"  UPSHAW V. UNITED STATES, 335 U.S. 410, 413.  (FN50)  ITS PURPOSE
IS TO GIVE EFFECT TO THE REQUIREMENT THAT PERSONS ARRESTED BE BROUGHT
WITHOUT UNNECESSARY DELAY BEFORE A JUDICIAL OFFICER - A SAFEGUARD WHICH
OUR SOCIETY, LIKE OTHER CIVILIZED SOCIETIES, HAS FOUND ESSENTIAL TO THE
PROTECTION OF PERSONAL LIBERTY.  (FN51) 

THE MCNABB CASE WAS AN INNOVATION WHICH DERIVED FROM OUR CONCERN AND
RESPONSIBILITY FOR FAIR MODES OF CRIMINAL PROCEEDING IN THE FEDERAL
COURTS.  (FN52)  THE STATES, IN THE LARGE, HAVE NOT ADOPTED A SIMILAR
EXCLUSIONARY PRINCIPLE.  (FN53)  AND ALTHOUGH WE ADHERE UNRESERVEDLY TO
MCNABB FOR FEDERAL CRIMINAL CASES, WE HAVE NOT EXTENDED ITS RULE TO
STATE PROSECUTIONS AS A REQUIREMENT OF THE FOURTEENTH AMENDMENT. 
GALLEGOS V. NEBRASKA, 342 U.S. 55, 63-64 (OPINION OF REED, J.); BROWN
V. ALLEN, 344 U.S. 443, 476; STEIN V. NEW YORK, 346 U.S. 156, 187-188;
CF. LYONS V. OKLAHOMA, 322 U.S. 596, 597-598, N. 2; TOWNSEND V. BURKE,
334 U.S. 736, 738; STROBLE V. CALIFORNIA, 343 U.S. 181, 197. 

IN LIGHT OF OUR PAST OPINIONS AND IN LIGHT OF THE WIDE DIVERGENCE OF
VIEWS WHICH MEN MAY REASONABLY MAINTAIN CONCERNING THE PROPRIETY OF
VARIOUS POLICE INVESTIGATIVE PROCEDURES NOT INVOLVING THE EMPLOYMENT OF
OBVIOUS BRUTALITY, THIS MUCH SEEMS CERTAIN:  IT IS IMPOSSIBLE FOR THIS
COURT, IN ENFORCING THE FOURTEENTH AMENDMENT, TO ATTEMPT PRECISELY TO
DELIMIT, OR TO SURROUND WITH SPECIFIC, ALL-INCLUSIVE RESTRICTIONS, THE
POWER OF INTERROGATION ALLOWED TO STATE LAW ENFORCEMENT OFFICERS IN
OBTAINING CONFESSIONS.  NO SINGLE LITMUS-PAPER TEST FOR
CONSTITUTIONALLY IMPERMISSIBLE INTERROGATION HAS BEEN EVOLVED:  NEITHER
EXTENSIVE CROSS-QUESTIONING - DEPRECATED BY THE ENGLISH JUDGES; NOR
UNDUE DELAY IN ARRAIGNMENT - PROSCRIBED BY MCNABB; NOR FAILURE TO
CAUTION A PRISONER - ENJOINED BY THE JUDGES' RULES; NOR REFUSAL TO
PERMIT COMMUNICATION WITH FRIENDS AND LEGAL COUNSEL AT STAGES IN THE
PROCEEDING WHEN THE PRISONER IS STILL ONLY A SUSPECT - PROHIBITED BY
SEVERAL STATE STATUTES.  SEE LISENBA V. CALIFORNIA, 314 U.S. 219;
CROOKER V. CALIFORNIA, 357 U.S. 433; ASHDOWN V. UTAH, 357 U.S. 426. 

EACH OF THESE FACTORS, IN COMPANY WITH ALL OF THE SURROUNDING
CIRCUMSTANCES - THE DURATION AND CONDITIONS OF DETENTION (IF THE
CONFESSOR HAS BEEN DETAINED), THE MANIFEST ATTITUDE OF THE POLICE
TOWARD HIM, HIS PHYSICAL AND MENTAL STATE, THE DIVERSE PRESSURES WHICH
SAP OR SUSTAIN HIS POWERS OF RESISTANCE AND SELF-CONTROL - IS
RELEVANT.  (FN54)  THE ULTIMATE TEST REMAINS THAT WHICH HAS BEEN THE
ONLY CLEARLY ESTABLISHED TEST IN ANGLO-AMERICAN COURTS FOR TWO HUNDRED
YEARS:  THE TEST OF VOLUNTARINESS.  IS THE CONFESSION THE PRODUCT OF AN
ESSENTIALLY FREE AND UNCONSTRAINED CHOICE BY ITS MAKER?  IF IT IS, IF
HE HAS WILLED TO CONFESS, IT MAY BE USED AGAINST HIM.  IF IT IS NOT, IF
HIS WILL HAS BEEN OVERBORNE AND HIS CAPACITY FOR SELF-DETERMINATION
CRITICALLY IMPAIRED, THE USE OF HIS CONFESSION OFFENDS DUE PROCESS. 
ROGERS V. RICHMOND, 365 U.S. 534.  THE LINE OF DISTINCTION IS THAT AT
WHICH GOVERNING SELF-DIRECTION IS LOST AND COMPULSION, OF WHATEVER
NATURE OR HOWEVER INFUSED, PROPELS OR HELPS TO PROPEL THE CONFESSION. 
                                     IV. 

THE INQUIRY WHETHER, IN A PARTICULAR CASE, A CONFESSION WAS
VOLUNTARILY OR INVOLUNTARILY MADE INVOLVES, AT THE LEAST, A THREE
PHASED PROCESS.  FIRST, THERE IS THE BUSINESS OF FINDING THE CRUDE
HISTORICAL FACTS, THE EXTERNAL, "PHENOMENOLOGICAL" OCCURRENCES AND
EVENTS SURROUNDING THE CONFESSION.  SECOND, BECAUSE THE CONCEPT OF
"VOLUNTARINESS" IS ONE WHICH CONCERNS A MENTAL STATE, THERE IS THE
IMAGINATIVE RECREATION, LARGELY INFERENTIAL, OF INTERNAL,
"PSYCHOLOGICAL" FACT.  THIRD, THERE IS THE APPLICATION TO THIS
PSYCHOLOGICAL FACT OF STANDARDS FOR JUDGMENT INFORMED BY THE LARGER
LEGAL CONCEPTIONS ORDINARILY CHARACTERIZED AS RULES OF LAW BUT WHICH,
ALSO, COMPREHEND BOTH INDUCTION FROM, AND ANTICIPATION OF, FACTUAL
CIRCUMSTANCES. 

IN A CASE COMING HERE FROM THE HIGHEST COURT OF A STATE IN WHICH
REVIEW MAY BE HAD, THE FIRST OF THESE PHASES IS DEFINITELY DETERMINED,
NORMALLY, BY THAT COURT.  DETERMINATION OF WHAT HAPPENED REQUIRES
ASSESSMENTS OF THE RELATIVE CREDIBILITY OF WITNESSES WHOSE STORIES, IN
CASES INVOLVING CLAIMS OF COERCION, ARE FREQUENTLY, IF INDEED NOT
ALMOST INVARIABLY, CONTRADICTORY.  THAT ASCERTAINMENT BELONGS TO THE
TRIER OF FACTS BEFORE WHOM THOSE WITNESSES ACTUALLY APPEAR, SUBJECT TO
WHATEVER CORRECTIVE POWERS A STATE'S APPELLATE PROCESSES AFFORD. 

THIS MEANS THAT ALL TESTIMONIAL CONFLICT IS SETTLED BY THE JUDGMENT
OF THE STATE COURTS.  WHERE THEY HAVE MADE EXPLICIT FINDINGS OF FACT,
THOSE FINDINGS CONCLUDE US AND FORM THE BASIS OF OUR REVIEW - WITH THE
ONE CAVEAT, NECESSARILY, THAT WE ARE NOT TO BE BOUND BY FINDINGS WHOLLY
LACKING SUPPORT IN EVIDENCE.  SEE THOMPSON V. LOUISVILLE, 362 U.S.
199.  WHERE THERE ARE NO EXPLICIT FINDINGS, OR IN THE CASE OF LACUNAE
AMONG THE FINDINGS, THE REJECTION OF A FEDERAL CONSTITUTIONAL CLAIM BY
STATE CRIMINAL COURTS APPLYING PROPER CONSTITUTIONAL STANDARDS (FN55)
RESOLVES ALL CONFLICTS IN TESTIMONY BEARING ON THAT CLAIM AGAINST THE
CRIMINAL DEFENDANT.  IN SUCH INSTANCES, WE CONSIDER ONLY THE
UNCONTESTED PORTIONS OF THE RECORD:  THE EVIDENCE OF THE PROSECUTION'S
WITNESSES AND SO MUCH OF THE EVIDENCE FOR THE DEFENSE AS, FAIRLY READ
IN THE CONTEXT OF THE RECORD AS A WHOLE, REMAINS UNCONTRADICTED. 
ASHCRAFT V. TENNESSEE, 322 U.S. 143, 152-153; LYONS V. OKLAHOMA, 322
U.S. 596, 602-603; WATTS V. INDIANA, 338 U.S. 49, 50-52 (OPINION OF
FRANKFURTER, J.); GALLEGOS V. NEBRASKA, 342 U.S. 55, 60-62; STEIN V.
NEW YORK, 346 U.S. 156, 180-182; PAYNE V. ARKANSAS, 356 U.S. 560, 561
562; THOMAS V. ARIZONA, 356 U.S. 390, 402-403. 

THE SECOND AND THIRD PHASES OF THE INQUIRY - DETERMINATION OF HOW THE
ACCUSED REACTED TO THE EXTERNAL FACTS, AND OF THE LEGAL SIGNIFICANCE OF
HOW HE REACTED ALTHOUGH DISTINCT AS A MATTER OF ABSTRACT ANALYSIS,
BECOME IN PRACTICAL OPERATION INEXTRICABLY INTERWOVEN.  THIS IS SO, IN
PART, BECAUSE THE CONCEPTS BY WHICH LANGUAGE EXPRESSES AN OTHERWISE
UNREPRESENTABLE MENTAL REALITY ARE THEMSELVES GENERALIZATIONS IMPORTING
PRECONCEPTIONS ABOUT THE REALITY TO BE EXPRESSED.  IT IS SO, ALSO,
BECAUSE THE APPREHENSION OF MENTAL STATES IS ALMOST INVARIABLY A MATTER
OF INDUCTION, MORE OR LESS IMPRECISE, AND THE MARGIN OF ERROR WHICH IS
THUS INTRODUCED INTO THE FINDING OF "FACT" MUST BE ACCOUNTED FOR IN THE
FORMULATION AND APPLICATION OF THE "RULE" DESIGNED TO COPE WITH SUCH
CLASSES OF FACTS.  THE NOTION OF "VOLUNTARINESS" IS ITSELF AN
AMPHIBIAN.  IT PURPORTS AT ONCE TO DESCRIBE AN INTERNAL PSYCHIC STATE
AND TO CHARACTERIZE THAT STATE FOR LEGAL PURPOSES.  SINCE THE
CHARACTERIZATION IS THE VERY ISSUE "TO REVIEW WHICH THIS COURT SITS,"
WATTS V. INDIANA, 338 U.S. 49, 51 (OPINION OF FRANKFURTER, J.), THE
MATTER OF DESCRIPTION, TOO, IS NECESSARILY OPEN HERE.  SEE LISENBA V.
CALIFORNIA, 314 U.S. 219, 237-238; WARD V. TEXAS, 316 U.S. 547, 550;
HALEY V. OHIO, 332 U.S. 596, 599; MALINSKI V. NEW YORK, 324 U.S. 401,
404, 417. 

NO MORE RESTRICTED SCOPE OF REVIEW WOULD SUFFICE ADEQUATELY TO
PROTECT FEDERAL CONSTITUTIONAL RIGHTS.  FOR THE MENTAL STATE OF
INVOLUNTARINESS UPON WHICH THE DUE PROCESS QUESTION TURNS CAN NEVER BE
AFFIRMATIVELY ESTABLISHED OTHER THAN CIRCUMSTANTIALLY - THAT IS, BY
INFERENCE; AND IT CANNOT BE COMPETENT TO THE TRIER OF FACT TO PRECLUDE
OUR REVIEW SIMPLY BE DECLINING TO DRAW INFERENCES WHICH THE HISTORICAL
FACTS COMPEL.  GREAT WEIGHT, OF COURSE, IS TO BE ACCORDED TO THE
INFERENCES WHICH ARE DRAWN BY THE STATE COURTS.  IN A DUBIOUS CASE, IT
IS APPROPRIATE, WITH DUE REGARD TO FEDERAL-STATE RELATIONS, THAT THE
STATE COURT'S DETERMINATION SHOULD CONTROL.  BUT WHERE, ON THE
UNCONTESTED EXTERNAL HAPPENINGS, COERCIVE FORCES SET IN MOTION BY STATE
LAW ENFORCEMENT OFFICIALS ARE UNMISTAKABLY IN ACTION; WHERE THESE
FORCES, UNDER ALL THE PREVAILING STATES OF STRESS, ARE POWERFUL ENOUGH
TO DRAW FORTH A CONFESSION; WHERE, IN FACT, THE CONFESSION DOES COME
FORTH AND IS CLAIMED BY THE DEFENDANT TO HAVE BEEN EXTORTED FROM HIM;
AND WHERE HE HAS ACTED AS A MAN WOULD ACT WHO IS SUBJECTED TO SUCH AN
EXTRACTING PROCESS - WHERE THIS IS ALL THAT APPEARS IN THE RECORD - A
STATE'S JUDGMENT THAT THE CONFESSION WAS VOLUNTARY CANNOT STAND. 

"  ...  IF FORCE HAS BEEN APPLIED, THIS COURT DOES NOT LEAVE TO LOCAL
DETERMINATION WHETHER OR NOT THE CONFESSION WAS VOLUNTARY.  THERE IS
TORTURE OF MIND AS WELL AS BODY; THE WILL IS AS MUCH AFFECTED BY FEAR
AS BY FORCE.  AND THERE COMES A POINT WHERE THIS COURT SHOULD NOT BE
IGNORANT AS JUDGES OF WHAT WE KNOW AS MEN."  WATTS V. INDIANA, SUPRA,
AT 52. 

                                      V. 

WE TURN, THEN, TO THE UNCONTESTED HISTORICAL FACTS AS THEY APPEAR IN
THIS RECORD.  SINCE JUDGMENT AS TO LEGAL VOLUNTARINESS VEL NON UNDER
THE DUE PROCESS CLAUSE IS DRAWN FROM THE TOTALITY OF THE RELEVANT
CIRCUMSTANCES OF A PARTICULAR SITUATION, A DETAILED ACCOUNT OF THEM IS
UNAVOIDABLE.  WHEN CULOMBE'S CONFESSIONS WERE OFFERED BY THE
PROSECUTION AND OBJECTED TO AS CONSTITUTIONALLY INADMISSIBLE, THE
CONNECTICUT SUPERIOR COURT, PURSUANT TO THE APPLICABLE CONNECTICUT
PROCEDURE, (FN56) EXCUSED THE JURY AND TOOK EVIDENCE BEARING ON THE
ISSUE OF COERCION.  IT LATER MADE EXPLICIT FINDINGS SETTING FORTH THE
FACTS WHICH IT CREDITED AND DEEMED RELEVANT.  ON THE BASIS OF THESE
FINDINGS AND - INSOFAR AS THEY DO NOT COVER ALL ASPECTS OF THE
TESTIMONY - OF EVIDENCE THAT IS UNCONTRADICTED, THE FOLLOWING MAY BE
TAKEN AS ESTABLISHED.  (FN57) 

IN FEBRUARY 1957, THE CONNECTICUT STATE POLICE AT HARTFORD WERE
INVESTIGATING A NUMBER OF CRIMINAL INCIDENTS.  IN CONNECTION WITH
CERTAIN OF THESE (OTHER THAN THE KURP'S GASOLINE STATION KILLINGS IN
NEW BRITAIN) IT WAS DECIDED ON SATURDAY, FEBRUARY 23 TO HAVE TWO MEN,
ARTHUR CULOMBE AND JOSEPH TABORSKY, PICKED UP AND VIEWED BY WITNESSES. 
LIEUTENANT ROME, WHO WAS IN CHARGE OF THE INVESTIGATION, DELEGATED
TEAMS OF OFFICERS TO GO TO DIFFERENT ADDRESSES WHERE THE MEN MIGHT BE
LOCATED. 

SHORTLY AFTER 2 P.M., TWO OFFICERS ACCOSTED CULOMBE AND TABORSKY
ENTERING A CAR IN FRONT OF THE HOME OF THE LATTER'S MOTHER IN
HARTFORD.  THEY TOLD TABORSKY THAT LIEUTENANT ROME WANTED TO TALK TO
HIM AT STATE POLICE HEADQUARTERS.  THEY SAID THAT THIS WAS NOT AN
ARREST.  TABORSKY STATED THAT HE WAS WILLING TO GO AND CULOMBE DROVE
HIM TO HEADQUARTERS, FOLLOWING THE OFFICER'S CAR.  LEAVING TABORSKY,
CULOMBE IMMEDIATELY DROVE HOME. 

SHORTLY AFTER HIS ARRIVAL, AT ABOUT 2:30 P.M., SERGEANT PAIGE AND
ANOTHER OFFICER CAME TO CULOMBE'S APARTMENT TO BRING HIM BACK TO
HEADQUARTERS.  THEY TOLD CULOMBE THAT HE WAS NOT ARRESTED, THAT
LIEUTENANT ROME WANTED TO TALK TO HIM.  CULOMBE DROVE SERGEANT PAIGE TO
HEADQUARTERS IN HIS, CULOMBE'S, CAR.  FROM THIS TIME, CULOMBE WAS NEVER
AGAIN OUT OF THE EFFECTIVE CONTROL OF THE POLICE. 

LIEUTENANT ROME SPOKE BRIEFLY TO CULOMBE AND TABORSKY AND ASKED THEM
IF THEY WOULD AGREE TO ACCOMPANY SEVERAL OFFICERS TO COVENTRY AND ROCKY
HILL FOR PURPOSES OF POSSIBLE IDENTIFICATION.  THEY CONSENTED. 
SERGEANT PAIGE AND TWO OTHER OFFICERS TOOK CULOMBE AND TABORSKY ON THIS
TRIP, WHICH CONSUMED ABOUT THREE HOURS, BETWEEN 3 AND 6 P.M.  IN THE
CAR, CULOMBE WAS QUESTIONED CONCERNING HIS POSSIBLE PARTICIPATION IN
SEVERAL CRIMES.  HE WAS NOT THEN REGARDED AS UNDER ARREST.  DURING THE
STOPS AT COVENTRY AND ROCKY HILL, AFTER CULOMBE AND TABORSKY, AT THE
OFFICERS' REQUEST, HAD ENTERED A COUNTRY STORE AND A PACKAGE STORE
FEIGNING TO BE CUSTOMERS, THE TWO MEN WERE LEFT FOR BRIEF PERIODS OF
TIME IN THE POLICE CRUISER WITH ONLY OFFICER GRIFFIN PRESENT.  GRIFFIN
PERMITTED THEM TO DRINK THE CONTENTS OF A BOTTLE OF LIQUOR WHICH
TABORSKY CARRIED. 

ON THE RETURN TO HARTFORD THE GROUP STOPPED AT A DINER FOR DINNER. 
CULOMBE AND TABORSKY WERE TOLD TO ORDER WHAT THEY WANTED AND ATE WELL. 
AT HEADQUARTERS CULOMBE WAS QUESTIONED FOR AN HOUR BY PAIGE CONCERNING
HIS POSSESSION OF GUNS.  HE TOLD PAIGE THAT HE WAS A GUN COLLECTOR AND
HAD SEVEN OR EIGHT GUNS AT HIS HOME WHICH HE AGREED TO TURN OVER TO THE
POLICE.  THE REASON CULOMBE REVEALED THIS INFORMATION TO PAIGE WAS THAT
THE GUNS WERE REGISTERED AND CULOMBE KNEW THAT PAIGE COULD HAVE TRACED
THEM TO HIM IN ANY EVENT. 

PAIGE AND ANOTHER OFFICER TOOK CULOMBE TO HIS HOME, WHERE CULOMBE
LEFT THEM IN THE LIVING ROOM AND WENT TO THE BEDROOM.  FOLLOWING, THEY
FOUND HIM WITH TWO GUNS.  THEY FOUND A CLIP OF CARTRIDGES IN A DRAWER
WHICH HE HAD JUST CLOSED AND SIX MORE GUNS IN A SMALL SAFE.  THEY TOOK
THESE.  CULOMBE AND THE SECOND OFFICER LEFT AND WAITED TOGETHER ON THE
STREET NEAR THE CRUISER, THE OFFICER HOLDING CULOMBE'S ARM, FOR
APPROXIMATELY TWENTY MINUTES WHILE PAIGE REMAINED IN CULOMBE'S
APARTMENT QUESTIONING CULOMBE'S WIFE. 

CULOMBE WAS TAKEN BACK TO HEADQUARTERS.  PAIGE TALKED WITH HIM FOR A
SHORT WHILE, THEN DISCONTINUED HIS INVESTIGATION FOR THE NIGHT.  ROME
TALKED WITH CULOMBE FOR ABOUT TWO HOURS, APPARENTLY OVER A THREE- OR
THREE- AND-A-HALF-HOUR PERIOD.  THE TALK CONCERNED THE KURP'S KILLINGS
AND OTHER MATTERS.  AT THIS TIME CULOMBE AND TABORSKY WERE KEPT IN
SEPARATE ROOMS.  ROME WOULD QUESTION ONE, THEN THE OTHER, STAYING WITH
EACH MAN UNTIL HE GOT SOME BIT OF INFORMATION THAT HE COULD HAVE
CHECKED.  DURING RESPITES OF QUESTIONING BY ROME, CULOMBE REMAINED IN
THE INTERROGATION ROOM. 

AT ONE POINT, CULOMBE TOLD ROME THAT HE WANTED TO SEE A LAWYER BUT
DID NOT GIVE THE NAME OF ANY SPECIFIC LAWYER.  ROME REPLIED THAT
CULOMBE COULD HAVE ANY LAWYER HE WANTED IF CULOMBE WOULD TELL ROME WHAT
LAWYER TO CALL.  ROME KNEW THAT CULOMBE, AN ILLITERATE, WAS UNABLE TO
USE THE TELEPHONE DIRECTORY. 

ABOUT 10 P.M., ROME PUT CULOMBE UNDER ARREST BY VIRTUE OF A
CONNECTICUT STATUTE PERMITTING ARREST WITHOUT A WARRANT WHERE THE
ARRESTING OFFICER HAS CAUSE TO SUSPECT THAT THE PERSON ARRESTED HAS
COMMITTED A FELONY.  THE STATUTE REQUIRES THAT PERSONS SO ARRESTED BE
PRESENTED WITH REASONABLE PROMPTNESS BEFORE THE PROPER AUTHORITY. 
(FN58)  CULOMBE WAS TAKEN TO A CELL AT HEADQUARTERS SOMETIME BEFORE
MIDNIGHT.  HOWEVER, THE LOG BOOK IN WHICH NOTATION IS CUSTOMARILY MADE
OF PRISONERS DETAINED IN THE HEADQUARTERS CELL BLOCKS SHOWS NO ENTRY
FOR CULOMBE SATURDAY NIGHT. 

CONCERNING THE PURPOSE OF THE QUESTIONING WHICH BEGAN ON SATURDAY AND
CONTINUED INTERMITTENTLY UNTIL CULOMBE CONFESSED THE FOLLOWING
WEDNESDAY, SERGEANT PAIGE CANDIDLY ADMITTED THAT IT WAS INTENDED TO
OBTAIN A CONFESSION IF A CONFESSION WAS OBTAINABLE.  (FN59)  LIEUTENANT
ROME AGREED THAT HE HAD KEPT AFTER CULOMBE UNTIL HE GOT ANSWERS WHICH
HE COULD PROVE WERE CORRECT.  (FN60)  THERE IS NO INDICATION THAT AT
ANY TIME CULOMBE WAS WARNED OF HIS RIGHT TO KEEP SILENT.  NEITHER PAIGE
NOR ANYONE IN PAIGE'S HEARING CAUTIONED CULOMBE CONCERNING HIS
CONSTITUTIONAL RIGHTS.  (FN61) 

ON SUNDAY, FEBRUARY 24, CULOMBE WAS QUESTIONED FOR A SHORT TIME ABOUT
THE NEW BRITAIN KILLINGS AND DENIED THAT HE WAS INVOLVED.  HE WAS ALSO
QUESTIONED BY PAIGE AND A HARTFORD DETECTIVE ABOUT ANOTHER ROBBERY. 
THE FOLLOWING MORNING CULOMBE AND TABORSKY WERE DRIVEN TO NEW BRITAIN
AND, AFTER A SUBSTANTIAL WAIT AT THE DETECTIVE HEADQUARTERS BUILDING,
WERE BOOKED FOR BREACH OF THE PEACE AT NEW BRITAIN POLICE
HEADQUARTERS.  CROWDS LINED BOTH SIDES OF THE STREET WHERE THE STATIONS
WERE LOCATED.   AFTER THE BOOKING, EN ROUTE BACK TO HARTFORD, THE
CRUISER IN WHICH CULOMBE RODE STOPPED AT KURP'S GAS STATION.  ROME
ASKED CULOMBE IF HE RECOGNIZED THE PLACE; CULOMBE SAID THAT HE DID
NOT.  ON MONDAY AFTERNOON CULOMBE WAS AGAIN QUESTIONED AT HEADQUARTERS
CONCERNING KURP'S AS WELL AS OTHER MATTERS.  LIEUTENANT ROME QUESTIONED
HIM FOR TWO OR THREE HOURS.  SERGEANT PAIGE ALSO QUESTIONED HIM FOR
TWENTY MINUTES OR HALF AN HOUR, BUT THIS APPEARS TO HAVE BEEN
CONCURRENT WITH ROME'S QUESTIONING.  CULOMBE THEN CONFESSED TO THE
THEFT OF CERTAIN CANNED GOODS AND MADE A STATEMENT ABOUT THEM THAT WAS
REDUCED TO WRITING. 

ON TUESDAY, FEBRUARY 26, CULOMBE WAS REMOVED FROM HIS CELL TO BE
TAKEN TO THE NEW BRITAIN POLICE COURT FOR PRESENTATION ON THE BREACH OF
THE PEACE CHARGE.  AT THAT TIME ROME TOLD HIM THAT HE WAS TO BE BROUGHT
TO COURT AND WOULD HAVE AN OPPORTUNITY TO SEE A LAWYER.  AT NEW BRITAIN
THERE WERE AGAIN CROWDS ON THE STREET, BUT NOT AS HEAVY AS MONDAY'S. 

THE COURTROOM WAS CROWDED.  ONCE IN IT, CULOMBE AND TABORSKY WERE
PLACED IN A PRISONERS' PEN, A WIRE-MESH, CAGE-LIKE AFFAIR IN THE CORNER
OF THE ROOM.  PHOTOGRAPHERS WITH FLASHBULBS TOOK PHOTOGRAPHS OF THEM IN
THE PEN.  THE CROWD WAS BETWEEN THE PEN AND THE JUDGE'S BENCH.  WHEN
COURT CONVENED, THE TWO MEN WERE PRESENTED FOR BREACH OF THE PEACE. 
CULOMBE WAS NOT REQUIRED TO PLEAD.  HE WAS NOT HEARD BY THE COURT.  HE
WAS NOT TAKEN OUT OF THE PEN AND BROUGHT BEFORE THE BENCH.  HE WAS NOT
TOLD THAT HE MIGHT HAVE COUNSEL.  NO ONE INFORMED THE JUDGE THAT
CULOMBE HAD PREVIOUSLY ASKED TO SEE A LAWYER.  AT LIEUTENANT ROME'S
SUGGESTION, THE PROSECUTING ATTORNEY MOVED FOR A CONTINUANCE.  WITHOUT
GIVING CULOMBE AN OCCASION TO CONTEST THE MOTION OR PARTICIPATE IN ANY
WAY IN THE PROCEEDINGS, THE COURT CONTINUED THE CASE FOR A WEEK AND
ISSUED A MITTIMUS COMMITTING CULOMBE TO THE HARTFORD COUNTY JAIL UNTIL
RELEASED BY DUE COURSE OF LAW.    THE IDEA OF PRESENTING CULOMBE AND
TABORSKY ON CHARGES OF BREACH OF THE PEACE WAS ROME'S, IN COLLABORATION
WITH THE ALTERNATE PROSECUTOR.  (FN62)  ITS PURPOSE, ROME TESTIFIED,
WAS "TO HELP ME INVESTIGATE SOME SERIOUS CRIMES IN THE STATE OF
CONNECTICUT."  THIS BREACH OF THE PEACE PROSECUTION WAS LATER NOLLED,
CULOMBE HAVING NEVER BEEN BROUGHT BACK BEFORE THE POLICE COURT BECAUSE
"IT WASN'T NECESSARY."  (FN63)  IN TESTIMONY ADMITTED IN TABORSKY'S
CASE, ROME CONCEDED THAT HE COULD HAVE BOOKED TABORSKY (AND HENCE,
PRESUMABLY, CULOMBE, SINCE THE LEGAL PROCEEDINGS AGAINST THE TWO MEN
WERE AT ALL STAGES PROSECUTED SIMULTANEOUSLY) ON SUNDAY AND PRESENTED
HIM ON MONDAY, BUT DELAYED BECAUSE HE, ROME, WANTED MORE TIME, MORE
INTERROGATION.  PRESENTING THE MAN ON MONDAY, ALTHOUGH IT WOULD HAVE
BEEN IN ACCORDANCE WITH THE CONNECTICUT STATUTE REQUIRING PRESENTATION
WITH REASONABLE PROMPTNESS, WAS NOT, ROME TESTIFIED, "IN ACCORDANCE
WITH GOOD INVESTIGATION."  (FN64) 

ON LEAVING THE POLICE COURT, AND AFTER ANOTHER STOP AT KURP'S,
CULOMBE WAS RETURNED TO HEADQUARTERS IN HARTFORD, WHERE HE AND TABORSKY
WERE QUESTIONED BY ROME AND OTHER OFFICERS DURING AN INDETERMINATE
PERIOD THAT CANNOT HAVE BEEN MORE THAN ABOUT TWO HOURS.  AT 3 OR 4 THAT
AFTERNOON, ROME VISITED THE CULOMBE HOME AND QUESTIONED CULOMBE'S WIFE
FOR HALF AN HOUR.  ROME THEN RETURNED TO HEADQUARTERS WHERE, SHORTLY
THEREAFTER, MRS. CULOMBE ARRIVED, BROUGHT IN A POLICE CRUISER BY A
POLICEWOMAN PURSUANT TO ARRANGEMENTS MADE BY ROME, BUT BY HER OWN
REQUEST OR, AT THE LEAST, HER OWN AGREEMENT.  HER CHILDREN WERE WITH
HER.  SHE SPOKE BRIEFLY WITH ROME, WHO ASKED HER IF SHE "WOULD GO ALONG
AND LAY THE CARDS ON THE TABLE TO HER HUSBAND AND SEE IF HE WOULDN'T
CONFESS."  (FN65)  MRS. CULOMBE WAS THEN TAKEN TO A ROOM WHERE, IN THE
PRESENCE OF ROME AND THE POLICEWOMAN, SHE TALKED TO CULOMBE DURING A
QUARTER OF AN HOUR.  THE CHILDREN WERE NOT IN THE ROOM.  MRS. CULOMBE
ASKED CULOMBE IF HE WERE RESPONSIBLE FOR THE NEW BRITAIN KILLINGS AND
TOLD HIM THAT IF HE WERE HE SHOULD TELL THE POLICE THE TRUTH.  ROME
PERMITTED THIS CONFRONTATION BECAUSE "IT IS ANOTHER WAY OF GETTING A
CONFESSION."  HE ADMITTED THAT HE ASKED MRS. CULOMBE TO HELP THE POLICE
AND THAT SHE DID HELP THEM INDIRECTLY; THAT HE TRIED TO USE HER AS A
MEANS OF SECURING HER HUSBAND'S CONFESSION. 

AFTER MRS. CULOMBE LEFT THE ROOM, ROME CONTINUED TO QUESTION CULOMBE
CONCERNING CERTAIN CONVERSATIONS BETWEEN CULOMBE AND TABORSKY.  CULOMBE
AND ROME WENT TO THE DOOR OF THE ROOM AND ROME CALLED CULOMBE'S
THIRTEEN-YEAR-OLD DAUGHTER INTO THE ROOM, SAYING:  "HONEY, COME IN HERE
AND  ...  .  YOU TELL ME HOW THEY WENT INTO THE BEDROOM AND TALKED -
JOE TABORSKY AND YOUR FATHER."  THERE IS NO INDICATION THAT THE GIRL
DID COME INTO THE ROOM OR THAT SHE SAID ANYTHING. 

CULOMBE WAS RETURNED TO HIS CELL.  PAIGE CAME TO THE CELL AND BEGAN
TO ASK HIM QUESTIONS, BUT CULOMBE WAS UPSET BY THE SCENE WITH HIS
FAMILY AND CHOKED UP OR SOBBED AND TOLD PAIGE THAT HE DID NOT WANT TO
TALK.  PAIGE DISCONTINUED THE QUESTIONING AND SAT WITH CULOMBE FOR
FIFTEEN OR TWENTY MINUTES UNTIL OTHER OFFICERS CAME TO REMOVE CULOMBE
TO THE COUNTY JAIL PURSUANT TO THE MITTIMUS OF THE NEW BRITAIN POLICE
COURT.  PAIGE ADMITTED THAT CULOMBE'S CONFRONTATION BY HIS WIFE HAD
BEEN AN "ORDEAL," AND ROME AGREED THAT THE PRISONER WAS "UPSET." 
CULOMBE WAS LOGGED IN AT THE JAIL BETWEEN 8 AND 9 THAT NIGHT. 

AT ABOUT 10 A.M. ON WEDNESDAY, FEBRUARY 27, JAIL GUARDS CAME TO
CULOMBE'S CELL, LED HIM TO THE GATES OF THE JAIL, AND TURNED HIM INTO
THE CUSTODY OF SERGEANT PAIGE AND SEVERAL OTHER STATE POLICE OFFICERS. 
NOTATION WAS MADE ON THE BOOKS OF THE JAIL THAT THE STATE POLICE HAD
"BORROWED" CULOMBE.  (FN66)  HELD AT HEADQUARTERS UNTIL 1 P.M., CULOMBE
WAS THEN BROUGHT TO THE INTERROGATION ROOM FOR QUESTIONING BY PAIGE AND
DETECTIVE MURPHY.  PAIGE, WHO WAS AT FIRST ALONE IN THE ROOM WITH
CULOMBE, BEGAN BY TELLING CULOMBE THAT CULOMBE HAD BEEN LYING TO HIM. 
HE SUGGESTED THAT, WHENEVER CULOMBE DID NOT WANT TO ANSWER A QUESTION,
CULOMBE SAY "I DON'T WANT TO ANSWER" INSTEAD OF LYING.  CULOMBE AGREED,
AND THEREUPON PAIGE, WHO HELD A LIST OF THE CRIMES BEING INVESTIGATED,
WENT THROUGH IT QUESTIONING CULOMBE ABOUT HIS PARTICIPATION IN EACH. 
ANSWERING EACH QUESTION, CULOMBE STATED EITHER THAT HE HAD NOT BEEN
THERE OR THAT HE DID NOT WANT TO TALK ABOUT IT.  WHEN PAIGE HAD GOTTEN
THROUGH THE LIST, MURPHY, HAVING COME IN, TOOK THE LIST OVER AND
REPEATED THE SAME QUESTIONS THAT CULOMBE HAD ANSWERED OR REFUSED TO
ANSWER FOR PAIGE.  PAIGE LEFT THE ROOM FOR A WHILE, THEN RE-ENTERED. 
MURPHY ASKED CULOMBE WHETHER CULOMBE DID NOT WANT TO COOPERATE. 
CULOMBE SAID THAT HE DID BUT THAT IT WAS A HARD DECISION TO MAKE. 
MURPHY ASKED WHETHER CULOMBE WAS IN FEAR OF ANYONE AND CULOMBE ANSWERED
THAT HE WAS IN FEAR OF TABORSKY.  AFTER APPROXIMATELY AN HOUR AND A
HALF, CULOMBE TOLD THE POLICE THAT THEY WERE LOOKING FOR FOUR GUNS AND
TWO MEN AND THAT HE HAD NOT DONE ANY KILLING HIMSELF.  IMMEDIATELY,
ROME, WHO HAD BEEN LISTENING TO THE INTERROGATION OVER AN
INTERCOMMUNICATION SYSTEM, CAME INTO THE ROOM AND, SHORTLY THEREAFTER,
DETECTIVE O'BRIEN ALSO ARRIVED.  CULOMBE AGREED TO SHOW THE OFFICERS
WHERE THE GUNS WOULD BE FOUND.  (FN67)  HE REQUESTED THAT THEY TRAVEL
IN AN UNMARKED CAR AND WAS ASSURED THAT THE CRUISER WOULD CARRY NO
IDENTIFYING INSIGNIA.  AT ABOUT 3:30 P.M., THE FOUR OFFICERS AND
CULOMBE LEFT HEADQUARTERS FOR CULOMBE'S HOME. 

DURING THE SHORT RIDE, ROME QUESTIONED CULOMBE IN THE REAR SEAT OF
THE CAR.  THE OTHER THREE OFFICERS SAT UP FRONT.  WHEN CULOMBE BEGAN TO
GIVE ANSWERS WHICH ROME REGARDED AS SIGNIFICANT, ROME TOLD O'BRIEN, WHO
HAD BEEN DRIVING, TO LET MURPHY TAKE THE WHEEL.  O'BRIEN, WHO WAS
SKILLED AT SHORTHAND, UNDERSTOOD THAT THIS MEANT THAT HE WAS TO TAKE
THE CONVERSATION DOWN.  HE DID SO.  IN IT CULOMBE ADMITTED
PARTICIPATION IN A NUMBER OF CRIMES, INCLUDING THE GAS STATION HOLDUP. 
HE GAVE A DETAILED DESCRIPTION OF WHAT HAPPENED AT KURP'S IN WHICH HE
RELATED THAT HE AND TABORSKY HAD ROBBED THE STATION AND THAT TABORSKY
HAD SHOT BOTH THE PROPRIETOR AND THE CUSTOMER.  SEVERAL OFFICERS
TESTIFIED TO THE CONTENT OF THIS ORAL CONFESSION AT THE TRIAL. 

CULOMBE, THE FOUR OFFICERS AND TWO POLICE PHOTOGRAPHERS ENTERED THE
CULOMBES' PROJECT APARTMENT.  THERE THEY FOUND MRS. CULOMBE WITH HER
YOUNGER, FIVE-YEAR-OLD DAUGHTER.  AFTER DIRECTING ROME TO A CACHE
BEHIND THE MEDICINE CABINET WHERE CERTAIN WEAPONS WERE CONCEALED AND TO
A SAFE COMPARTMENT CONTAINING PARTS OF A GUN, CULOMBE SPOKE WITH HIS
WIFE IN THE LIVING ROOM IN THE PRESENCE OF AT LEAST ONE DETECTIVE.  HE
TOLD HER THAT HE HAD DECIDED TO CLEANSE HIS CONSCIENCE AND MAKE A CLEAN
BREAST OF THINGS; THAT HE WAS AFRAID THAT TABORSKY MIGHT HARM HER, AND
SO HE WAS COOPERATING.  HE ALSO SAID THAT HE WANTED TO SAVE MRS.
CULOMBE EMBARRASSMENT AS FAR AS THE NEIGHBORS WERE CONCERNED.  (FN68)
LEAVING THE APARTMENT IN THE CRUISER, CULOMBE DIRECTED THE OFFICERS TO
A NEARBY SWAMPY AREA WHERE HE POINTED OUT THE LOCATION IN WHICH HE HAD
DISPOSED OF ONE GUN AND PART OF ANOTHER USED AT KURP'S.  HE LED THEM TO
ANOTHER SWAMP WHERE A RAINCOAT SAID TO HAVE BEEN WORN ON THE NIGHT OF
THE HOLDUP WAS RECOVERED.  AFTER SEVERAL OTHER LIKE STOPS HE WAS TAKEN
BACK TO HEADQUARTERS, ARRIVING JUST AFTER 6 P.M.  THERE, IN RESPONSE TO
BRIEF QUESTIONING IN THE PRESENCE OF MAJOR REMER AND COMMISSIONER
KELLY, HE REPEATED HIS CONFESSIONS OF THE EARLY AFTERNOON. 

CULOMBE WAS TAKEN TO DINNER.  SHORTLY AFTERWARDS HE AGAIN SAW MRS.
CULOMBE, WHO HAD COME TO HEADQUARTERS WITH HER FIVE-YEAR-OLD.  THE
CHILD WAS SICK.  MRS. CULOMBE TOLD CULOMBE THAT THE CHILD WAS SICK AND
CULOMBE SAID THAT HE THOUGHT THAT THE POLICEWOMAN WOULD TAKE IT TO THE
HOSPITAL IF SHE WERE ASKED.  AT ABOUT 8 P.M., ROME, PAIGE, O'BRIEN AND
COUNTY DETECTIVE MATUS BROUGHT CULOMBE TO THE INTERROGATION ROOM TO
REDUCE HIS SEVERAL CONFESSIONS TO WRITING.  CULOMBE MADE A NUMBER OF
STATEMENTS.  THE MANNER OF TAKING THEM (NO DOUBT COMPLICATED BY
CULOMBE'S ILLITERACY AND HIS TENDENCY TO GIVE RAMBLING AND NON
CONSECUTIVE ANSWERS) WAS AS FOLLOWS:  ROME QUESTIONED CULOMBE; CULOMBE
ANSWERED; ROME TRANSPOSED THE ANSWER INTO NARRATIVE FORM; CULOMBE
AGREED TO IT; ROME DICTATED THE PHRASE OR SENTENCE TO O'BRIEN.  EACH
COMPLETED STATEMENT WAS READ TO AND SIGNED BY CULOMBE.  THE LAST OF
THEM RELATED TO THE KURP'S HOLDUP AND TO ANOTHER CRIME COMMITTED
EARLIER ON THE SAME DAY.  IT WAS STARTED SHORTLY BEFORE 11 P.M. AND THE
KURP'S EPISODE WAS REACHED AT 12:30 A.M.  THE KURP'S STATEMENT REQUIRED
A HALF HOUR TO COMPOSE. 

AT THE END OF THIS FOUR-AND-A-HALF-HOUR INTERVIEW, CULOMBE WAS
UNSHAVED, HIS CLOTHING A SORRY SIGHT.  HE WAS TIRED.  HE SPENT THAT
NIGHT IN A CELL AT STATE POLICE HEADQUARTERS AT HIS OWN REQUEST,
APPARENTLY BECAUSE HE WAS AFRAID OF TABORSKY, WHO WAS STILL LODGED IN
THE HARTFORD JAIL.  ALTHOUGH THE CONFESSION WHICH HE SIGNED THAT NIGHT
WAS NOT PUT IN AS AN EXHIBIT AT THE TRIAL, IT WAS FULLY LAID BEFORE THE
JURY BY THE RECEIPT IN EVIDENCE OF ANOTHER TYPED PAPER SUBSTITUTED FOR
IT BY STIPULATION AND WHOSE CONTENTS, SEVERAL OFFICERS TESTIFIED,
EMBODIED THE SUBSTANCE OF WHAT CULOMBE TOLD THEM SHORTLY AFTER MIDNIGHT
WEDNESDAY.  (FN69) 

ON THURSDAY, FEBRUARY 28, ROME HAD CULOMBE BROUGHT INTO A ROOM WHERE
HE WAS TALKING TO TABORSKY.  AT THE LIEUTENANT'S DIRECTION, CULOMBE
REPEATED HIS CONFESSION.  LATER CULOMBE WAS PRESENTED IN THE SUPERIOR
COURT ON A CHARGE OF FIRST-DEGREE MURDER PURSUANT TO A BENCH WARRANT
ISSUED THAT MORNING.  THE PRESIDING JUDGE WARNED CULOMBE OF HIS RIGHTS
TO KEEP SILENT AND TO HAVE COUNSEL.  HE ASKED CULOMBE IF HE WANTED
COUNSEL AND CULOMBE REPLIED THAT HE DID.  CULOMBE SAID THAT HE DID NOT
WANT THE PUBLIC DEFENDER, THAT HE WANTED ATTORNEY MCDONOUGH BUT COULD
NOT AFFORD TO PAY FOR HIS SERVICES.  THE JUDGE PROMISED THAT THE COURT
WOULD SEE THAT CULOMBE HAD THE ATTORNEY OF HIS CHOICE AT STATE
EXPENSE.  HE THEN INFORMED CULOMBE THAT THE POLICE WISHED TO CONDUCT AN
INVESTIGATION INTO THE CHARGES AGAINST HIM AND HAD REQUESTED AN ORDER
RELEASING CULOMBE INTO THEIR CUSTODY FOR THAT PURPOSE.  ASKED IF HE WAS
WILLING TO COOPERATE, CULOMBE SAID THAT HE WAS.  HE WAS TOLD THAT THIS
MIGHT MEAN THAT HE WOULD BE TAKEN TO THE SITES OF VARIOUS CRIMES AND
AGAIN SAID THAT HE WAS WILLING TO COOPERATE; HE WANTED "TO COOPERATE
WITH THEM IN ANY WAY I CAN."  ACCORDINGLY, THE COURT RELEASED CULOMBE
TO THE STATE POLICE COMMISSIONER FOR THE PURPOSE OF CONTINUING THE
INVESTIGATION. 

AT KURP'S GASOLINE STATION, CULOMBE RE-ENACTED THE HOLDUP FOR ROME
AND OTHER OFFICERS.  LATER THAT AFTERNOON, AT HEADQUARTERS, NEW YORK
DETECTIVES TALKED TO HIM CONCERNING A NEW YORK KILLING.  NO FURTHER
INVESTIGATION RELATING THE CONNECTICUT CRIMES WAS CONDUCTED THAT DAY OR
FRIDAY.  CULOMBE REMAINED IN THE CELL BLOCK AT HEADQUARTERS, RATHER
THAN AT THE COUNTY JAIL, AT HIS OWN REQUEST.  ON FRIDAY NIGHT HE FIRST
SAW MR. MCDONOUGH, HIS COURT-APPOINTED COUNSEL, AND ALSO SAW HIS WIFE. 

TWO STATE PSYCHIATRISTS EXAMINED CULOMBE DURING TWO HOURS ON
SATURDAY, MARCH 2.  AT 10 P.M. THAT EVENING, WHEN CULOMBE WAS ALONE IN
HIS CELL, HE CALLED OUT TO THE GUARD ASSIGNED TO THE CELL BLOCK AND
SAID THAT HE WANTED TO VOLUNTEER SOME INFORMATION RELATING TO THE
KURP'S HOLDUP.  THE GUARD HAD NOT PREVIOUSLY SPOKEN TO CULOMBE DURING
HIS WATCH EXCEPT TO SAY, "HI, ART," WHEN HE FIRST CAME ON DUTY AT 6
O'CLOCK.  CULOMBE NOW NARRATED A NEW VERSION OF WHAT HAD HAPPENED AT
KURP'S.  THIS WAS GENERALLY SIMILAR TO HIS PREVIOUS STATEMENTS EXCEPT
THAT IN IT HE ADMITTED THAT HE HIMSELF HAD SHOT KURPIEWSKI.  THE GUARD
TELEPHONED THIS INFORMATION TO LIEUTENANT ROME AND CULOMBE THANKED
HIM.  AT TRIAL THE GUARD RELATED THE OCCASION AND CONTENTS OF THIS ORAL
CONFESSION TO THE JURY. 

SUNDAY MORNING, ROME, THE GUARD TO WHOM CULOMBE HAD CONFESSED THE
NIGHT BEFORE, AND ANOTHER OFFICER INTERVIEWED CULOMBE IN THE
INTERROGATION ROOM.  IN ANSWER TO ROME'S QUESTION, COLUMBE SAID THAT HE
WANTED TO CHANGE THE STORY THAT HE HAD PREVIOUSLY GIVEN.  HE THEN SAID
THAT HE HAD SHOT KURPIEWSKI.  FOLLOWING THE SAME PROCEDURE THAT HAD
BEEN USED ON WEDNESDAY NIGHT, A DETAILED STATEMENT OF HIS NEW VERSION
OF THE NEW BRITAIN KILLINGS WAS COMPOSED AND CULOMBE SIGNED IT.  IT WAS
RECEIVED IN EVIDENCE AT THE TRIAL.  LATER IN THE AFTERNOON ATTORNEY
MCDONOUGH SPOKE WITH CULOMBE AND ROME AT HEADQUARTERS.  HE TOLD CULOMBE
NOT TO SIGN ANY MORE PAPERS OR TO TALK TO THE POLICE.  HE TOLD ROME
THAT HE DID NOT WANT THE POLICE BOTHERING CULOMBE FURTHER AND REQUESTED
THAT CULOMBE BE REMOVED FROM HEADQUARTERS TO THE COUNTY JAIL.  THIS WAS
DONE. 

THE FOLLOWING DAY, MONDAY, MARCH 4, LIEUTENANT ROME AND DETECTIVE
O'BRIEN VISITED CULOMBE AT THE JAIL FOR HALF AN HOUR.  ROME BROUGHT A
NEW TYPED STATEMENT PREPARED BY THE POLICE.  THIS WAS A SUBSTANTIALLY
VERBATIM TRANSCRIPTION OF THE DOCUMENT WHICH CULOMBE HAD SIGNED ON
WEDNESDAY, BUT WITH ALL REFERENCES TO THE SECOND, SEPARATE CRIME
COMMITTED ON DECEMBER 15, 1956, DELETED.  ROME READ THE TRANSCRIPTION
TO CULOMBE AND CULOMBE SIGNED IT.  IT WAS ADMITTED AT TRIAL.  ROME DID
NOT NOTIFY MCDONOUGH THAT CULOMBE'S SIGNATURE WAS TO BE OBTAINED
BECAUSE HE WAS WORRIED THAT IF HE DID, MCDONOUGH WOULD NOT PERMIT
CULOMBE TO SIGN.  ROME TESTIFIED THAT HE COULD "DO BETTER WITHOUT" THE
ATTORNEY:  CULOMBE "WAS COOPERATIVE  ...  .  I NEEDED HIS COOPERATION
AND GOT IT."    THE MAN WHO WAS THUS COOPERATIVE WITH THE POLICE,
ARTHUR CULOMBE, WAS A THIRTY-THREE-YEAR-OLD MENTAL DEFECTIVE OF THE
MORON CLASS WITH AN INTELLIGENCE QUOTIENT OF SIXTY-FOUR (FN70) AND A
MENTAL AGE OF NINE TO NINE AND HALF YEARS.  HE WAS WHOLLY ILLITERATE. 
(FN71)  EXPERT WITNESSES FOR THE STATE, WHOSE APPRAISAL OF CULOMBE'S
MENTAL CONDITION WAS THE MOST FAVORABLE ADDUCED AT TRIAL, CLASSIFIED
HIM AS A "HIGH MORON" AND "A RATHER HIGH GRADE MENTALLY DEFECTIVE" AND
TESTIFIED THAT HIS REACTIONS WOULD NOT BE THE SAME AS THOSE OF THE
CHRONOLOGICAL NINE-YEAR-OLD BECAUSE HIS GREATER PHYSICAL MATURITY AND
FULLER BACKGROUND OF EXPERIENCE GAVE HIM A PERSPECTIVE THAT THE NINE
YEAR-OLD WOULD NOT POSSESS.  CULOMBE WAS, HOWEVER, "HANDICAPPED." 
CULOMBE HAD BEEN IN MENTAL INSTITUTIONS FOR DIAGNOSIS AND TREATMENT. 
HE HAD BEEN IN TROUBLE WITH THE LAW SINCE HE WAS AN ADOLESCENT AND HAD
BEEN IN PRISON AT LEAST TWICE IN CONNECTICUT SINCE HIS SUCCESSFUL
ESCAPE FROM A MASSACHUSETTS TRAINING SCHOOL FOR MENTAL DEFECTIVES. 
DURING THE THREE YEARS IMMEDIATELY PRECEDING HIS ARREST HE HAD HELD
DOWN, AND ADEQUATELY PERFORMED, A FREIGHT HANDLER'S JOB AND HAD
SUPPORTED HIS WIFE AND TWO YOUNG CHILDREN.  A PSYCHIATRIST TESTIFYING
FOR THE STATE SAID THAT, ALTHOUGH HE WAS NOT A FEARFUL MAN, CULOMBE WAS
SUGGESTIBLE AND COULD BE INTIMIDATED.  (FN72) 

TEN DAYS AFTER HIS LAST CONFESSION, ON MARCH 14, 1957, CULOMBE WAS
INDICTED FOR FIRST-DEGREE MURDER. 

                                     VI. 

IN THE VIEW WE TAKE OF THIS CASE, ONLY THE WEDNESDAY CONFESSIONS NEED
BE DISCUSSED.  (FN73)  IF THESE WERE COERCED, CULOMBE'S CONVICTION,
HOWEVER CONVINCINGLY SUPPORTED BY OTHER EVIDENCE, CANNOT STAND. 
MALINSKI V. NEW YORK, 324 U.S. 401; STROBLE V. CALIFORNIA, 343 U.S.
181; PAYNE V. ARKANSAS, 356 U.S. 560.  ON ALL THE CIRCUMSTANCES OF THIS
RECORD WE ARE COMPELLED TO CONCLUDE THAT THESE CONFESSIONS WERE NOT
VOLUNTARY.  BY THEIR USE PETITIONER WAS DEPRIVED OF DUE PROCESS OF
LAW. 

CONSIDERATION OF THE BODY OF THIS COURT'S PRIOR DECISIONS WHICH HAVE
FOUND CONFESSIONS COERCED INFORMS THIS CONCLUSION.  FOR ALTHOUGH THE
QUESTION WHETHER A PARTICULAR CRIMINAL DEFENDANT'S WILL HAS BEEN
OVERBORNE AND BROKEN IS ONE, IT DESERVES REPETITION, THAT MUST BE
DECIDED ON THE PECULIAR, INDIVIDUAL SET OF FACTS OF HIS CASE, IT IS
ONLY BY A CLOSE, RELEVANT COMPARISON OF SITUATIONS THAT STANDARDS WHICH
ARE SOLID AND EFFECTIVELY ENFORCEABLE - NOT DOCTRINAIRE OR ABSTRACT -
CAN BE EVOLVED.  IN APPROACHING THESE DECISIONS, WE MAY PUT ASIDE AT
THE OUTSET CASES INVOLVING PHYSICAL BRUTALITY, (FN74) THREATS OF
PHYSICAL BRUTALITY, (FN75) AND SUCH CONVINCINGLY TERROR-AROUSING, AND
OTHERWISE UNEXPLAINABLE, INCIDENTS OF INTERROGATION AS THE REMOVAL OF
PRISONERS FROM JAIL AT NIGHT FOR QUESTIONING IN SECLUDED PLACES, (FN76)
THE SHUTTLING OF PRISONERS FROM JAIL TO JAIL, AT DISTANCES FROM THEIR
HOMES, FOR QUESTIONING, (FN77) THE KEEPING OF PRISONERS UNCLOTHED OR
STANDING ON THEIR FEET FOR LONG PERIODS DURING QUESTIONING.  (FN78)  NO
SUCH OBVIOUS, CRUDE DEVICES APPEAR IN THIS RECORD.  WE MAY PUT ASIDE
ALSO CASES WHERE DEPRIVATION OF SLEEP HAS BEEN USED TO SAP A PRISONER'S
STRENGTH AND DRUG HIM (FN79) OR WHERE BALD DISREGARD OF HIS RUDIMENTARY
NEED FOR FOOD IS A FACTOR THAT ADDS TO ENFEEBLEMENT.  (FN80)  CULOMBE
WAS NOT SUBJECT TO WAKES OR STARVATION.  WE MAY PUT ASIDE CASES STAMPED
WITH THE OVERHANGING THREAT OF THE LYNCH MOB, (FN81) FOR ALTHOUGH IT IS
TRUE THAT CULOMBE SAW CROWDS OF PEOPLE GATHERED TO WITNESS HIS BOOKING
AND PRESENTATION IN NEW BRITAIN, THIS CIRCUMSTANCE MUST BE ACCOUNTED OF
SMALL SIGNIFICANCE HERE.  THERE WERE NO MOBS AT HARTFORD WHERE HE WAS
HELD SECURELY IMPRISONED AT STATE POLICE HEADQUARTERS.  (FN82)
FINALLY, WE MAY PUT ASIDE CASES OF GRUELLING, INTENSELY UNRELAXING
QUESTIONING OVER PROTRACTED PERIODS.  (FN83) CULOMBE'S MOST EXTENDED
SESSION PRIOR TO HIS FIRST CONFESSION RAN THREE AND A HALF HOURS WITH
SUBSTANTIAL RESPITES.  BECAUSE ALL OF HIS QUESTIONING CONCERNED NOT ONE
BUT SEVERAL OFFENSES, IT DOES NOT PRESENT AN ASPECT OF RELENTLESS,
CONSTANTLY REPEATED PROBING DESIGNED TO BREAK CONCENTRATED RESISTANCE. 
PARTICULARLY, THE SUSTAINED FOUR-AND-A-HALF-HOUR INTERVIEW THAT
PRECEDED THE WEDNESDAY-MIDNIGHT CONFESSION WAS ALMOST WHOLLY TAKEN UP
WITH MATTERS OTHER THAN KURP'S, AND AT THAT TIME, FAR FROM RESISTING,
CULOMBE WAS WHOLLY COOPERATING WITH THE POLICE. 

SIMILARLY, OUR DECISIONS IN HALEY V. OHIO, 332 U.S. 596, AND
BLACKBURN V. ALABAMA, 361 U.S. 199, ARE NOT PERSUASIVE HERE.  HALEY, A
FIFTEEN-YEAR-OLD BOY, WAS ARRESTED AT HIS HOME AND TAKEN TO A POLICE
STATION AT MIDNIGHT, WHERE HE WAS QUESTIONED BY RELAYS OF OFFICERS
UNTIL HE CONFESSED AT 5 A.M.  HE HAD SEEN NO FRIEND OR LEGAL COUNSEL
DURING THAT TIME AND HE WAS SUBSEQUENTLY HELD INCOMMUNICADO FOR THREE
DAYS.  ON THE TOTALITY OF CIRCUMSTANCES, THE COURT HELD HIS CONFESSION
COERCED.  BUT CULOMBE WAS NEVER QUESTIONED CONCERNING ONE CRIME FOR
FIVE HOURS.  INDEED, HE WAS NEVER QUESTIONED DURING FIVE HOURS AT A
STRETCH.  HE WAS NEVER QUESTIONED IN THE EARLY MORNING HOURS.  AND
WHILE HALEY, WHOSE QUESTIONING BEGAN IMMEDIATELY ON HIS ARRIVAL AT THE
STATION AND DID NOT LET UP UNTIL HE CONFESSED, HAD EVERY REASON TO
EXPECT THAT HIS RELAY INTERROGATORS INTENDED TO KEEP THE PACE UP TILL
HE BROKE, (FN84) CULOMBE, AT THE TIME OF HIS CONFESSIONS, HAD BEEN
QUESTIONED ON SEVERAL PREVIOUS DAYS AND KNEW THAT THE SESSIONS HAD NOT
RUN MORE THAN A FEW HOURS.  MOREOVER, CULOMBE, DESPITE HIS MENTAL AGE
OF NINE OR NINE AND A HALF, CANNOT BE VIEWED AS A CHILD.  EXPERT
TESTIMONY IN THE RECORD, WHICH THE CONNECTICUT COURTS MAY HAVE
CREDITED, PRECLUDES THE APPLICATION TO CULOMBE OF STANDARDS APPROPRIATE
TO THE ADOLESCENT HALEY. 

NOR, WITHOUT GUESSING, AS UNTUTORED LAYMEN AND NOT PROFESSIONALLY
INFORMED AS JUDGES, ABOUT THE SUSCEPTIBILITY OF A MENTAL DEFECTIVE TO
OVERREACHING, CAN WE APPLY TO CULOMBE THE STANDARDS CONTROLLING THE
CASE OF THE ACTIVE PSYCHOTIC, BLACKBURN.  THE EXPERT EVIDENCE OF
HALLUCINATIONS, DELUSIONAL IDEAS AND COMPLETE LOSS OF CONTACT WITH HIS
SURROUNDINGS WHICH WE FOUND UNCONTRADICTED IN THE BLACKBURN RECORD HAS
NO COUNTERPART IN CULOMBE'S.  ALSO, BLACKBURN, LIKE HALEY, CONFESSED
AFTER A PROTRACTED QUESTIONING SESSION - EIGHT OR NINE HOURS, WITH A
ONE-HOUR BREAK, IN BLACKBURN'S CASE - MORE EXHAUSTING THAN ANY SINGLE
PERIOD THAT CULOMBE UNDERWENT. 

ON THE OTHER HAND, WHAT MUST ENTER OUR JUDGMENT ABOUT CULOMBE'S
MENTAL EQUIPMENT - THAT HE IS SUGGESTIBLE AND SUBJECT TO INTIMIDATION -
DOES NOT PERMIT US TO ATTRIBUTE TO HIM POWERS OF RESISTANCE COMPARABLE
TO THOSE WHICH THE COURT FOUND POSSESSED BY THE DEFENDANT COOPER IN
STEIN V. NEW YORK, 346 U.S. 156, WHO HAGGLED FOR TERMS WITH THE
OFFICIALS TO WHOM HE CONFESSED, (FN85) OR THE DEFENDANT JAMES IN
LISENBA V. CALIFORNIA, 314 U.S. 219, WHO BRAGGED IMMEDIATELY BEFORE HIS
CONFESSION THAT THERE WERE NOT ENOUGH MEN IN THE DISTRICT ATTORNEY'S
OFFICE TO MAKE HIM TALK.  CULOMBE WAS DETAINED IN THE EFFECTIVE CUSTODY
OF THE POLICE FOR FOUR NIGHTS AND A SUBSTANTIAL PORTION OF FIVE DAYS
BEFORE HE CONFESSED.  DURING THAT TIME HE WAS QUESTIONED SO REPEATEDLY,
ALTHOUGH INTERMITTENTLY, THAT HE CANNOT BUT HAVE BEEN MADE TO BELIEVE
WHAT THE POLICE HARDLY DENIED, THAT THE POLICE WANTED ANSWERS AND WERE
DETERMINED TO GET THEM.  (FN86)  OTHER THAN HIS QUESTIONERS AND JAILERS
AND THE POLICE OFFICIALS WHO BOOKED HIM AT NEW BRITAIN, HE SPOKE TO
ONLY TWO PEOPLE: TABORSKY, OF WHOM HE WAS AFRAID, AND HIS OWN WIFE, WHO
BY PREARRANGEMENT WITH LIEUTENANT ROME, ASKED HIM TO TELL THE POLICE
THE TRUTH.  (FN87)  THE VERY DURATION OF SUCH A DETENTION DISTINGUISHES
THIS CASE FROM THOSE IN WHICH WE HAVE FOUND TO BE VOLUNTARY CONFESSIONS
GIVEN AFTER SEVERAL HOURS QUESTIONING OR LESS ON THE DAY OF ARREST. 
SEE STROBLE V. CALIFORNIA, 343 U.S. 181; CICENIA V. LAGAY, 357 U.S.
504; ASHDOWN V. UTAH, 357 U.S. 426; CF. CROOKER V. CALIFORNIA, 357 U.S.
433.  IN OTHER CASES, IN WHICH WE HAVE SUSTAINED CONVICTIONS RESTING ON
CONFESSIONS MADE AFTER PROLONGED DETENTION, QUESTIONING OF THE
DEFENDANT WAS SPORADIC, NOT SYSTEMATIC, (FN88) OR HAD BEEN DISCONTINUED
DURING A CONSIDERABLE PERIOD PRIOR TO CONFESSION, (FN89) SO THAT WE DID
NOT FIND, IN THE CIRCUMSTANCES THERE PRESENTED, THAT POLICE
INTERROGATORS HAD OVERBORNE THE ACCUSED. 

THE CASES MOST CLOSELY COMPARABLE TO THE PRESENT ONE ON THEIR FACTS
ARE TURNER V. PENNSYLVANIA, 338 U.S. 62, JOHNSON V. PENNSYLVANIA, 340
U.S. 881, AND FIKES V. ALABAMA, 352 U.S. 191.  TURNER, LIKE CULOMBE,
WAS ARRESTED WITHOUT A WARRANT AND, WITHOUT HAVING BEEN BROUGHT BEFORE
A MAGISTRATE, (FN90) WAS DETAINED DURING FOUR NIGHTS AND ABOUT FIVE
DAYS BEFORE HE CONFESSED.  LIKE CULOMBE, ALSO, HE WAS QUESTIONED IN
DAYLIGHT AND EVENING HOURS, SOMETIMES BY ONE, SOMETIMES BY SEVERAL
OFFICERS.  TURNER SAW NO VISITORS DURING HIS DETENTION; CULOMBE SAW
ONLY HIS WIFE, WHO GAVE HIM SCANT SUPPORT.  IT IS TRUE THAT TURNER'S
INTERROGATION AMOUNTED TO A TOTAL OF MORE THAN TWENTY-THREE HOURS, AS
AGAINST THE APPROXIMATELY TWELVE AND ONE HALF HOURS THAT CULOMBE WAS
QUESTIONED PRIOR TO HIS FIRST CONFESSION, AND THAT TURNER WAS
QUESTIONED ON TWO DAYS FOR AS MANY AS SIX HOURS (IN TWO SESSIONS, ON
EACH OCCASION), WHILE CULOMBE WAS NEVER QUESTIONED FOR MORE THAN THREE
HOURS ON ANY ONE DAY.  IT IS TRUE ALSO THAT TURNER'S QUESTIONING
INVOLVED ONLY A SINGLE CRIME, NOT SEVERAL.  BUT TURNER WAS NOT A MENTAL
DEFECTIVE, AS IS CULOMBE, AND CERTAIN SIGNIFICANT PRESSURES BROUGHT TO
BEAR ON CULOMBE - THE USE OF HIS FAMILY, THE INTIMIDATING EFFECT OF THE
NEW BRITAIN POLICE COURT HEARING - WERE ABSENT IN THE TURNER RECORD. 
THE COURT HELD TURNER'S CONFESSION COERCED. 

JOHNSON, INDICTED AS TURNER'S ACCOMPLICE, WAS DETAINED DURING
APPROXIMATELY THE SAME PERIOD AND UNDER THE SAME CONDITIONS AS WAS
TURNER.  HE WAS QUESTIONED, HOWEVER, FOR ONLY SOMEWHAT MORE THAN SIX
HOURS OVER THESE FIVE DAYS, NEVER MORE THAN AN HOUR AND A HALF AT A
SITTING.  AT LEAST FIVE OFFICERS PARTICIPATED, AT ONE TIME OR ANOTHER,
IN THE QUESTIONING.  AT HIS SEPARATE TRIAL, BOTH HIS OWN CONFESSION AND
TURNER'S WERE ADMITTED.  THIS COURT REVERSED PER CURIAM.  (FN91) 

THE FACTS ON WHICH THE COURT RELIED IN FIKES WERE THESE.  THE
DEFENDANT, A TWENTY-SEVEN-YEAR-OLD NEGRO WITH A THIRD-GRADE EDUCATION,
APPARENTLY SCHIZOPHRENIC AND HIGHLY SUGGESTIBLE, AND WHO HAD PREVIOUSLY
BEEN INVOLVED WITH THE LAW ON ONLY ONE OCCASION, WAS APPREHENDED BY
PRIVATE PERSONS IN A WHITE NEIGHBORHOOD IN SELMA, ALABAMA, AT MIDNIGHT
ON A SATURDAY.  JAILED AND HELD BY THE POLICE ON OPEN CHARGES, HE WAS
QUESTIONED FOR FOUR AND HALF OR FIVE HOURS IN TWO SESSIONS ON SUNDAY,
AND DURING THE SECOND OF THESE SESSIONS HE WAS DRIVEN AROUND THE CITY
TO THE LOCATIONS OF SEVERAL UNSOLVED BURGLARIES.  THAT DAY HE TALKED TO
THE SHERIFF OF HIS HOME COUNTY, CALLED TO SELMA AT HIS REQUEST.  ON
MONDAY HE TALKED TO HIS EMPLOYER.  AFTER TWO HOURS OF QUESTIONING IN
THE MORNING HE WAS TAKEN TO A STATE PRISON FIFTY-FIVE MILES FROM SELMA
AND EIGHTY MILES FROM HIS HOME, WHERE HE WAS QUESTIONED DURING SEVERAL
HOURS IN THE AFTERNOON AND A SHORT WHILE IN THE EVENING.  THEREAFTER,
HE WAS KEPT IN A SEGREGATION UNIT AT THE PRISON, WHERE HE SAW ONLY
JAILERS AND POLICE OFFICERS.  HE DID NOT CONSULT COUNSEL, NOR WAS HE
BROUGHT BEFORE A MAGISTRATE - DESPITE THE REQUIREMENT OF ALABAMA LAW
THAT HE BE TAKEN FORTHWITH FOR A MAGISTRATE'S HEARING - PRIOR TO THE
TIME OF HIS CONFESSION. 

ON TUESDAY HE WAS NOT QUESTIONED.  ON WEDNESDAY HE WAS QUESTIONED
SEVERAL HOURS IN THE AFTERNOON AND INTO THE EVENING.  ON THURSDAY THE
QUESTIONING TOTALED THREE AND A HALF HOURS IN TWO SESSIONS, AND ON THAT
DAY HIS FATHER, WHO HAD COME TO THE PRISON TO SEE HIM, WAS TURNED
AWAY.  THURSDAY EVENING HIS FIRST CONFESSION, CONSISTING LARGELY OF YES
AND-NO ANSWERS TO OFTEN LEADING OR SUGGESTIVE QUESTIONS BY AN EXAMINER,
WAS TAKEN.  SATURDAY HE WAS QUESTIONED AGAIN FOR THREE HOURS.  A LAWYER
WHO CAME TO THE PRISON TO SEE HIM WAS REFUSED ADMISSION.  ON SUNDAY,
HOWEVER, FIKES' FATHER WAS PERMITTED TO SEE HIM.  THE FOLLOWING
TUESDAY, AFTER QUESTIONING OF TWO AND A HALF HOURS, HE CONFESSED A
SECOND TIME.  BOTH CONFESSIONS WERE ADMITTED IN EVIDENCE AT HIS TRIAL. 

THIS COURT REVERSED FIKES' CONVICTION.  THAT REVERSAL WAS ON A RECORD
WHICH SHOWED, AS DOES CULOMBE'S, ONLY INTERMITTENT INTERROGATION AND NO
TOTAL DENIAL OF FRIENDLY COMMUNICATION TO THE PRISONER.  IT SHOWED
ALSO, AS DOES THE PRESENT RECORD, A BACKGROUND ATMOSPHERE OF COMMUNITY
OUTRAGE BUT NO APPRECIABLE THREAT OF LYNCH VIOLENCE.  PARTICULARLY
SIGNIFICANT, FIKES, LIKE CULOMBE, WAS SUSPECTED NOT OF ONLY ONE, BUT OF
A NUMBER OF OFFENSES UNDER INVESTIGATION.  FIKES, CONCEDEDLY, WAS
REMOVED TO A PRISON LOCATED AT A CONSIDERABLE DISTANCE FROM HIS HOME,
AS CULOMBE WAS NOT.  THIS IS A FACTOR TO BE CONSIDERED.  BUT IN FIKES
THAT REMOVAL WAS PURPORTEDLY - AND NOT UNCONVINCINGLY - JUSTIFIED BY
CONCERN FOR THE PRISONER'S SAFETY, COMPARE WARD V. TEXAS, 316 U.S. 547,
AND WAS NOT, AS SUCH, A PREDOMINANT ELEMENT IN OUR DECISION. 

WE FIND THAT THE PRESENT CASE IS NOT LESS STRONG FOR REVERSAL THAN
FIKES V. ALABAMA.  CULOMBE - CERTAINLY NOT A STRONGER MAN THAN FIKES -
WAS APPARENTLY NEVER INFORMED OF HIS CONSTITUTIONAL RIGHTS, AS WAS
FIKES.  NEVERTHELESS, HE EXPRESSLY TOLD THE POLICE THAT HE WANTED
COUNSEL, AS FIKES DID NOT, AND HIS REQUEST WAS IN EFFECT FRUSTRATED. 
WE ARE TOLD THAT THIS WAS BECAUSE CULOMBE DID NOT KNOW THE NAME OF ANY
PARTICULAR ATTORNEY AND THE POLICE DO NOT REGARD IT AS AN APPROPRIATE
PRACTICE FOR THEM TO SUGGEST ATTORNEYS' NAMES TO PRISONERS.  HOWEVER
LAUDABLE THIS POLICY MAY BE IN THE GENERAL RUN OF THINGS, IT MANIFESTS
AN EXCESS OF POLICE DELICACY WHEN A TOTALLY ILLITERATE MAN, DETAINED AT
POLICE HEADQUARTERS AND SUSPECTED OF MANY SERIOUS FELONIES, OBVIOUSLY
NEEDS A LAWYER AND ASKS FOR ONE.  IN ANY EVENT, IN EVERY COUNTY IN
CONNECTICUT THERE IS A PUBLIC DEFENDER.  (FN92)    MOREOVER, CULOMBE
WAS SUBJECTED TO OTHER PRESSURES NOT BROUGHT TO BEAR ON FIKES.  BY
LIEUTENANT ROME'S ARRANGEMENT, MRS. CULOMBE WAS PERMITTED - INDEED
ASKED - TO CONFRONT HER HUSBAND AND TELL HIM TO CONFESS.  CULOMBE'S
THIRTEEN-YEAR-OLD DAUGHTER WAS CALLED UPON IN HIS PRESENCE TO RECOUNT
INCRIMINATING CIRCUMSTANCES.  THIS MAY FALL SHORT OF THE CRUDE
CHICANERY OF EMPLOYING PERSONS INTIMATE WITH AN ACCUSED, TO PLAY ON HIS
EMOTIONS, THAT WAS INVOLVED IN SPANO V. NEW YORK, 360 U.S. 315.  BUT IT
APPEARS, IN CONJUNCTION WITH ALL OF THE OTHER CIRCUMSTANCES, TO HAVE
HAD PRECISELY THE EFFECT THAT ROME, BY HIS OWN ADMISSION, CALCULATED:
"IT IS ANOTHER WAY OF GETTING A CONFESSION."  (FN93)    WHAT APPEARS IN
THIS CASE, THEN, IS THIS.  CULOMBE WAS TAKEN BY THE POLICE AND HELD IN
THE CAREFULLY CONTROLLED ENVIRONMENT OF POLICE CUSTODY FOR MORE THAN
FOUR DAYS BEFORE HE CONFESSED.  DURING THAT TIME HE WAS QUESTIONED -
QUESTIONED EVERY DAY ABOUT THE KURP'S AFFAIR - AND WITH THE AVOWED
INTENTION, NOT MERELY TO CHECK HIS STORY TO ASCERTAIN WHETHER THERE WAS
CAUSE TO CHARGE HIM, BUT TO OBTAIN A CONFESSION IF A CONFESSION WAS
OBTAINABLE. 

ALL MEANS FOUND FIT WERE EMPLOYED TO THIS END.  CULOMBE WAS NOT TOLD
THAT HE HAD A RIGHT TO REMAIN SILENT.  ALTHOUGH HE SAID THAT HE WANTED
A LAWYER, THE POLICE MADE NO ATTEMPT TO GIVE HIM THE HELP HE NEEDED TO
GET ONE.  (FN94)  INSTEAD OF BRINGING HIM BEFORE A MAGISTRATE WITH
REASONABLE PROMPTNESS, AS CONNECTICUT LAW REQUIRES, TO BE DULY
PRESENTED FOR THE GRAVE CRIMES OF WHICH HE WAS IN FACT SUSPECTED (AND
FOR WHICH HE HAD BEEN ARRESTED UNDER THE FELONY-ARREST STATUTE), HE WAS
TAKEN BEFORE THE NEW BRITAIN POLICE COURT ON THE PALPABLE RUSE OF A
BREACH-OF-THE-PEACE CHARGE CONCOCTED TO GIVE THE POLICE TIME TO PURSUE
THEIR INVESTIGATION.  THIS DEVICE IS ADMITTED.  IT HAD A TWO-FOLD
EFFECT.  FIRST, IT KEPT CULOMBE IN POLICE HANDS WITHOUT ANY OF THE
PROTECTIONS THAT A PROPER MAGISTRATE'S HEARING WOULD HAVE ASSURED HIM. 
CERTAINLY, HAD HE BEEN BROUGHT BEFORE IT CHARGED WITH MURDER INSTEAD OF
AN INSIGNIFICANT MISDEMEANOR, NO COURT WOULD HAVE FAILED TO WARN
CULOMBE OF HIS RIGHTS AND ARRANGE FOR APPOINTMENT OF COUNSEL.  (FN95)
SECOND, EVERY CIRCUMSTANCE OF THE POLICE COURT'S PROCEDURE WAS, IN
ITSELF, POTENTIALLY INTIMIDATING.  CULOMBE HAD BEEN TOLD THAT MORNING
THAT HE WOULD BE PRESENTED IN A COURT OF LAW AND WOULD BE ABLE TO
CONSULT COUNSEL.  INSTEAD, HE WAS LED INTO A CROWDED ROOM PENNED IN A
CORNER, AND, WITHOUT EVER BEING BROUGHT BEFORE THE BENCH OR GIVEN A
CHANCE TO PARTICIPATE IN ANY WAY, HIS CASE WAS DISPOSED OF.  CULOMBE
HAD BEEN CONVICTED OF CRIMES BEFORE AND PRESUMABLY WAS NOT IGNORANT OF
THE WAY IN WHICH JUSTICE IS REGULARLY DONE.  IT WOULD DENY THE IMPACT
OF EXPERIENCE TO BELIEVE THAT THE IMPRESSION WHICH EVEN HIS LIMITED
MIND DREW FROM THIS APPEARANCE BEFORE A COURT WHICH DID NOT EVEN HEAR
HIM, A COURT WHICH MAY WELL HAVE APPEARED A MERE TOOL IN THE HANDS OF
THE POLICE, WAS NOT INTIMIDATING. 

THAT SAME EVENING, BY ARRANGEMENT OF THE STATE POLICE, CULOMBE'S WIFE
AND DAUGHTER APPEARED AT HEADQUARTERS FOR THE INTERVIEW THAT LEFT HIM
SOBBING IN HIS CELL.  THE NEXT MORNING, ALTHOUGH THE MITTIMUS OF THE
NEW BRITAIN POLICE COURT HAD COMMITTED CULOMBE TO THE HARTFORD JAIL
UNTIL RELEASED BY DUE COURSE OF LAW, THE POLICE "BORROWED" HIM, AND
LATER THE QUESTIONING RESUMED.  THERE CAN BE NO DOUBT OF ITS PURPOSE AT
THIS TIME.  FOR PAIGE THEN "KNEW" - IF HE WAS EVER TO KNOW - THAT
CULOMBE WAS GUILTY.  (FN96)  PAIGE OPENED BY TELLING CULOMBE TO STOP
LYING AND TO SAY INSTEAD THAT HE DID NOT WANT TO ANSWER.  BUT WHEN
CULOMBE SAID THAT HE DID NOT WANT TO ANSWER, DETECTIVE MURPHY TOOK OVER
AND REPEATED THE SAME QUESTIONS THAT PAIGE HAD ASKED. 

IT IS CLEAR THAT THIS MAN'S WILL WAS BROKEN WEDNESDAY AFTERNOON.  IT
IS NO LESS CLEAR THAT HIS WILL WAS BROKEN WEDNESDAY NIGHT WHEN, AFTER
SEVERAL HOURS IN A CAR WITH FOUR POLICEMEN, TWO INTERVIEWS WITH HIS
WIFE AND HIS APPARENTLY ILL CHILD, FURTHER INQUIRIES MADE OF HIM IN THE
PRESENCE OF THE POLICE COMMISSIONER, AND A FOUR-AND-A-HALF-HOUR SESSION
WHICH LEFT HIM (BY POLICE TESTIMONY) "TIRED," HE AGREED TO THE
COMPOSITION OF A STATEMENT THAT WAS NOT EVEN CAST IN HIS OWN WORDS.  WE
DO NOT OVERLOOK THE FACT THAT CULOMBE TOLD HIS WIFE AT THEIR APARTMENT
THAT HE WANTED TO CLEANSE HIS CONSCIENCE AND MAKE A CLEAN BREAST OF
THINGS.  THIS ITEM, IN THE TOTAL CONTEXT, DOES NOT OVERBALANCE THE
SIGNIFICANCE OF ALL ELSE, PARTICULARLY SINCE IT WAS HIS WIFE WHO THE
DAY BEFORE, AT THE REQUEST OF LIEUTENANT ROME, HAD ASKED HIM TO
CONFESS.  (FN97)  NEITHER THE WEDNESDAY-AFTERNOON NOR THE WEDNESDAY
MIDNIGHT STATEMENT MAY BE PROVED AGAINST CULOMBE, AND HE CONVICTED BY
THEIR USE, CONSISTENTLY WITH THE CONSTITUTION. 

                                     VII. 

REGARDFUL AS ONE MUST BE OF THE PROBLEMS OF CRIME-DETECTION
CONFRONTING THE STATES, ONE DOES NOT REACH THE RESULT HERE AS AN EASY
DECISION.  IN THE CASE OF SUCH UNWITNESSED CRIMES AS THE KURP'S
KILLINGS, THE TRAILS OF DETECTION CHALLENGE THE MOST IMAGINATIVE
CAPACITIES OF LAW ENFORCEMENT OFFICERS.  OFTEN THERE IS LITTLE ELSE THE
POLICE CAN DO THAN INTERROGATE SUSPECTS AS AN INDISPENSABLE PART OF
CRIMINAL INVESTIGATION.  BUT WHEN INTERROGATION OF A PRISONER IS SO
LONG CONTINUED, WITH SUCH A PURPOSE, AND UNDER SUCH CIRCUMSTANCES, AS
TO MAKE THE WHOLE PROCEEDING AN EFFECTIVE INSTRUMENT FOR EXTORTING AN
UNWILLING ADMISSION OF GUILT, DUE PROCESS PRECLUDES THE USE OF THE
CONFESSION THUS OBTAINED.  UNDER OUR ACCUSATORIAL SYSTEM, SUCH AN
EXPLOITATION OF INTERROGATION, WHATEVER ITS USEFULNESS, IS NOT A
PERMISSIBLE SUBSTITUTE FOR JUDICIAL TRIAL.  REVERSED. 

FN1  AT THE TRIAL OF PETITIONER AND HIS CO-DEFENDANT TABORSKY FOR THE
KILLINGS AT KURP'S, NO EVIDENCE OF ANY IMPORTANCE WAS PRESENTED BY THE
STATE THAT DID NOT DERIVE, DIRECTLY OR INDIRECTLY, FROM THE CONFESSIONS
AND DISCLOSURES OBTAINED FROM THE TWO MEN DURING FEBRUARY AND MARCH
1957. 

FN2  IT IS SIGNIFICANT THAT THE PROPOSAL MOST FREQUENTLY MADE WITH
THE OBJECT OF CURBING THIRD-DEGREE METHODS BY THE POLICE IS THE
PROVISION OF SOME FORM OF PRELIMINARY JUDICIAL INTERROGATION OF PERSONS
ACCUSED OF CRIME, IN WHICH PROCEEDING THE PRIVILEGE AGAINST SELF
INCRIMINATION IS TO BE SO FAR WITHDRAWN AS TO PERMIT THE PROSECUTION,
UPON SUBSEQUENT TRIAL OF THE ACCUSED, TO COMMENT ON HIS REFUSAL TO
ANSWER QUESTIONS.  SEE IV NATIONAL COMMISSION ON LAW OBSERVANCE AND
ENFORCEMENT, REPORT NO. 11, LAWLESSNESS IN LAW ENFORCEMENT (HEREINAFTER
IV WICKERSHAM)(1931), 5-6; KAUPER, JUDICIAL EXAMINATION OF THE ACCUSED
A REMEDY FOR THE THIRD DEGREE, 30 MICH. L. REV. 1224 (1932); POUND,
LEGAL INTERROGATION OF PERSONS ACCUSED OR SUSPECTED OF CRIME, 24 J.
CRIM. L. & CRIMINOLOGY 1014 (1934); MCCORMICK, SOME PROBLEMS AND
DEVELOPMENTS IN THE ADMISSIBILITY OF CONFESSIONS, 24 TEX. L. REV.  239,
277 (1946).  CF. REPORT OF COMMITTEE ON LAWLESS ENFORCEMENT OF LAW,
AM. J. POL.  SCI.  (HEREINAFTER ABA COMMITTEE REPORT) 575, 593 (1930). 
UNDERLYING THESE PROPOSALS IS THE RECOGNITION THAT SOME FORM OF
INTERROGATION OF CRIMINAL SUSPECTS IS NECESSARY TO EFFECTIVE LAW
ENFORCEMENT. 

FN3  FOR THE PREVALENCE IN THIS COUNTRY OF VARIOUS METHODS OF POLICE
PRESSURING RANGING FROM PERSISTENT QUESTIONING TO BEATINGS SEE, E.G.,
ABA COMMITTEE REPORT, PASSIM; IV WICKERSHAM, PASSIM; BOOTH,
CONFESSIONS, AND METHODS EMPLOYED IN PROCURING THEM, 4 SO.  CALIF. L
REV. 83 (1930); NOTE, 43 HARV. L. REV. 617 (1930); HOPKINS, OUR LAWLESS
POLICE (1931), PASSIM; REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL
RIGHTS, TO SECURE THESE RIGHTS (1947), 25-27.  SEE ALSO AUTHORITIES
CITED IN NOTE 5, INFRA.  ALTHOUGH THE THIRD DEGREE IS, IN ENGLAND,
SPOKEN OF AS THE AMERICAN PRACTICE, ENGLAND HERSELF IS NOT FREE OF
POLICE INTERROGATION AND CROSS-QUESTIONING.  REPORT OF THE ROYAL
COMMISSION ON POLICE POWERS AND PROCEDURE (CMD.  3297)(1929), 100-102;
PRELIMINARY INVESTIGATIONS OF CRIMINAL OFFENSES, A REPORT BY JUSTICE
(1960), 9-10; WILLIAMS, QUESTIONING BY THE POLICE: SOME PRACTICAL
CONSIDERATIONS, (1960) CRIM. L. REV. 325, 328-331; WILLIAMS POLICE
DETENTION AND ARREST PRIVILEGES UNDER FOREIGN LAW, ENGLAND, 51 J. CRIM.
L., CRIMINOLOGY & POL.  SCI.  413 (1960).  A ROYAL COMMISSION IS NOW
ENGAGED IN A COMPREHENSIVE INQUIRY CONCERNING THE POLICE WHICH WILL,
APPARENTLY, INCLUDE STUDY OF POLICE METHODS INSOFAR AS THESE MAY RELATE
TO THE CONTROL AND ADMINISTRATION OF THE POLICE AND THEIR RELATIONSHIP
WITH THE PUBLIC.  SEE THE COMMISSION'S TERMS OF REFERENCE, ROYAL
COMMISSION ON THE POLICE 1960, INTERIM REPORT (CMD.  1222)(1960), IV. 

FN4  SEE, E.G., KIDD, POLICE INTERROGATION (1940); MULBAR,
INTERROGATION (1951); DIENSTEIN, TECHNICS FOR THE CRIME INVESTIGATOR
(1952), 97-115; INBAU AND REID, LIE DETECTION AND CRIMINAL
INTERROGATION (3D ED. 1953); O'HARA, FUNDAMENTALS OF CRIMINAL
INVESTIGATION (1956), 95-126.  COMPARE WITH THE HIGHLY SOPHISTICATED
METHODS OF POLICE INTERROGATION DESCRIBED IN THESE VOLUMES LORD
BRAMPTON'S ADDRESS TO POLICE CONSTABLES PRINTED, IN PART, IN REPORT OF
THE ROYAL COMMISSION, SUPRA, NOTE 3, APPENDIX 8, AT 147:  "PERHAPS THE
BEST MAXIM FOR A CONSTABLE TO BEAR IN MIND WITH RESPECT TO AN ACCUSED
PERSON IS, 'KEEP YOUR EYES AND YOUR EARS OPEN, AND YOUR MOUTH SHUT.'" 
SEE ALSO REGINA V. MALE AND COOPER, 17 COX C.C. 689, 690. 

FN5  AMERICAN CIVIL LIBERTIES UNION, ILLINOIS DIVISION, SECRET
DETENTION BY THE CHICAGO POLICE (1959); SEE ALSO FOOTE, LAW AND POLICE
PRACTICE:  SAFEGUARDS IN THE LAW OF ARREST, 52 NW. U.L. REV. 16, 20-27
(1957); HALL, THE LAW OF ARREST IN RELATION TO CONTEMPORARY SOCIAL
PROBLEMS, 3 U. OF CHI.  L. REV. 345, 359-362 (1936); HALL, POLICE AND
LAW IN A DEMOCRATIC SOCIETY, 28 IND. L.J. 133, 154 (1953). 

FN6  FOR A THOROUGH DISCUSSION OF THE EVILS INHERENT IN THE DETENTION
OF SUSPECTED PERSONS FOR INTERROGATION, SEE MEMORANDUM ON THE DETENTION
OF ARRESTED PERSONS AND THEIR PRODUCTION BEFORE A COMMITTING
MAGISTRATE, TRANSMITTED TO SUB-COMMITTEE NO. 2 OF THE COMMITTEE ON THE
JUDICIARY OF THE HOUSE OF REPRESENTATIVES (1944), IN CHAFEE, DOCUMENTS
ON FUNDAMENTAL HUMAN RIGHTS, PAMPHLETS 1-3 (1951-1952), 483.  BEYOND
THE OBVIOUS, IMMEDIATE CONSIDERATIONS CONCERNING INCARCERATION WITHOUT
JUDICIAL HEARING, THE THREAT OF THE THIRD DEGREE, DEPRIVATION OF
COUNSEL AT A POSSIBLY CRITICAL PERIOD IN THE CRIMINAL PROCEEDING, ETC.,
THERE LIE OTHER LESS EVIDENT BUT EQUALLY SIGNIFICANT MENACES.  THERE IS
THE THREAT THAT A POLICE SYSTEM WHICH HAS GROWN TO RELY TOO HEAVILY ON
INTERROGATION WILL NOT PURSUE, OR LEARN, OTHER CRIME DETECTION METHODS,
AND THE CONSEQUENT DANGER THAT THE POLICE WILL FEEL THEMSELVES UNDER
PRESSURE TO SECURE CONFESSIONS.  SEE IV WICKERSHAM, AT 187-189; GLUECK,
CRIME AND JUSTICE (1936), 76.  THERE IS THE DANGER THAT THE POLICE, BY
OFFENDING CANONS OF FAIRNESS REGARDED AS FUNDAMENTAL BY THE PEOPLE,
WILL CREATE AN ATMOSPHERE OF PUBLIC RESENTMENT TO AUTHORITY INIMICAL TO
LAW ENFORCEMENT.  SEE HALL, THE LAW OF ARREST IN RELATION TO
CONTEMPORARY SOCIAL PROBLEMS, 3 U. OF CHI.  L. REV. 345, 373 (1936);
WILLIAMS, QUESTIONING BY THE POLICE:  SOME PRACTICAL CONSIDERATIONS,
(1960) CRIM. L. REV. 325, 337. 

FN7  SEE IV WICKERSHAM, AT 174:  "BUT THERE IS DANGER THAT THE
PROCESS OF QUESTIONING MAY DEVELOP INTO THE THIRD DEGREE.  ONCE THE
INTERROGATION HAS BEGUN, THE POLICE OR OTHER OFFICIALS ARE NATURALLY
RELUCTANT TO LEAVE OFF UNTIL THE DESIRED INFORMATION HAS BEEN OBTAINED,
REGARDLESS OF THE PRISONER'S FATIGUE OR NEED OF SLEEP; AND THE BAFFLED
QUESTIONER, GETTING OBSTINATE SILENCE OR EVASIVE AND IMPUDENT REPLIES,
IS EASILY TEMPTED TO EKE OUT HIS UNSUCCESSFUL QUESTIONS BY THREATS OR
VIOLENCE." 

FN8  THERE CAN BE NO DOUBT THAT THE SECRECY IN WHICH POLICE-STATION
INTERROGATION IS USUALLY CARRIED OUT IS A CONDITION WHICH ENCOURAGES
QUESTIONING TO RUN OVER INTO VIOLENCE.  SEE ABA COMMITTEE REPORT, AT
587-588; HOGAN AND SNEE, THE MCNABB-MALLORY RULE:  ITS RISE, RATIONALE
AND RESCUE, 47 GEO. L.J. 1, 27 (1958); CF. IV WICKERSHAM, AT 31. 
HISTORICALLY THERE HAS BEEN INTIMATE CONNECTION BETWEEN THE USE OF
TORTURE AND SECRET INVESTIGATIONS.  FILAMOR, THIRD DEGREE CONFESSION,
13 BOMBAY L.J. 339, 342 (1936). 

FN9  SEE ABA COMMITTEE REPORT, AT 579:  "  ...  THE PRISONER KNOWS
THAT HE IS WHOLLY AT THE MERCY OF HIS INQUISITOR AND THAT THE SEVERE
CROSS-EXAMINATION MAY AT ANY MOMENT SHIFT TO A SEVERE BEATING." 

FN10  SEE REPORT OF THE ROYAL COMMISSION ON POLICE POWERS AND
PROCEDURE (CMD.  3297) (1929), AT 61:  "  ...  PERSONS IN CUSTODY  ...
ARE FROM THE NATURE OF THINGS AT A DISADVANTAGE BECAUSE OF THEIR
POSITION.  AS ONE WITNESS EXPRESSED IT TO US, 'THE WHOLE OF THE
INFLUENCES AROUND THEM APPEAR TO THEM TO BE HOSTILE' AND WE THINK THAT
A RIGHT OF ASKING QUESTIONS IN THESE CIRCUMSTANCES IS IN ITSELF A
SOURCE OF DANGER  ...  ." 

FN11  O'BRIEN, J., DISSENTING, IN REGINA V. JOHNSTON, 15 IRISH COMMON
LAW REPORTS, 60, 87, 90 (CRIM. APP.):  "  ...  IT APPEARS TO ME THAT
ANSWERS GIVEN BY A PRISONER TO QUESTIONS PUT TO HIM BY THOSE IN WHOSE
CUSTODY HE IS, RESPECTING THE OFFENCE WITH WHICH HE IS CHARGED, CANNOT
BE REGARDED AS VOLUNTARY STATEMENTS, EXCEPT THE PRISONER BE AT THE SAME
TIME APPRISED THAT HE IS NOT OBLIGED TO ANSWER THEM, AND THAT HIS
ANSWERS MAY BE GIVEN IN EVIDENCE AGAINST HIM AT HIS TRIAL.  THE VERY
FACT OF THESE QUESTIONS BEING PUT BY SUCH A PERSON, UNACCOMPANIED BY
ANY SUCH CAUTION, CONVEYS TO THE PRISONER'S MIND THE IDEA OF SOME
OBLIGATION ON HIS PART TO ANSWER THEM, AND DEPRIVES THE STATEMENT OF
THAT VOLUNTARY CHARACTER WHICH IS ESSENTIAL TO ITS ADMISSIBILITY."  CF.
CUTHBERT W. POUND, INQUISITORIAL CONFESSIONS, 1 CORNELL L.Q. 77, 80
(1916). 

FN12  CF. WILDE, C.J., IN REGINA V. PETTIT, 4 COX C.C. 164, 165:
"THE LAW IS SO EXTREMELY CAUTIOUS IN GUARDING AGAINST ANYTHING LIKE
TORTURE, THAT IT EXTENDS A SIMILAR PRINCIPLE TO EVERY CASE WHERE A MAN
IS NOT A FREE AGENT IN MEETING AN INQUIRY.  IF THIS SORT OF EXAMINATION
BE ADMITTED IN EVIDENCE, IT IS HARD TO SAY WHERE IT MIGHT STOP.  A
PERSON IN CUSTODY, OR IN OTHER IMPRISONMENT, QUESTIONED BY A
MAGISTRATE, WHO HAS POWER TO COMMIT HIM AND POWER TO RELEASE HIM, MIGHT
THINK HIMSELF BOUND TO ANSWER FOR FEAR OF BEING SENT TO GAOL.  THE MIND
IN SUCH A CASE WOULD BE LIKELY TO BE AFFECTED BY THE VERY INFLUENCES
WHICH RENDER THE STATEMENTS OF ACCUSED PERSONS INADMISSIBLE."  CF. IV.
WICKERSHAM, AT 93.    FN13  WATTS V. INDIANA, 338 U.S. 49, 53 (OPINION
OF FRANKFURTER, J.). 

FN14  DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND (1958), 58.    FN15
JACKSON, J., DISSENTING IN ASHCRAFT V. TENNESSEE, 322 U.S. 143, 156,
160. 

FN16  PEOPLE V. HALL, 413 ILL. 615, 624, 110 N.E.2D 249, 254.  SEE 3
WIGMORE ON EVIDENCE (3D ED. 1940), SEC. 851; FILAMOR, THIRD DEGREE
CONFESSION, 13 BOMBAY L.J. 339, 347 (1936); KIDD, POLICE INTERROGATION
(1940), 13-15; MULBAR, INTERROGATION (1951), 3-4; O'HARA, FUNDAMENTALS
OF CRIMINAL INVESTIGATION (1956), 8-10; INBAU AND REID, LIE DETECTION
AND CRIMINAL INVESTIGATION (3D ED. 1953), 195-197. 

FN17  STATE V. SMITH, 32 N.J. 501, 534, 161 A.2D 520, 537.  THE NEED
TO PERMIT POLICE INTERROGATION OF SUSPECTS IN CUSTODY HAS BEEN
PERSISTENTLY ASSERTED IN THIS COUNTRY.  SEE, E.G., H.R. REP. NO. 1815,
85TH CONG., 2D SESS. 5-7 ("IF THE POLICE  ...  ARE, IN EFFECT,
PREVENTED FROM CONDUCTING A PROPER AND REASONABLE INTERROGATION OF
SUSPECTS, LAW ENFORCEMENT IS FACED WITH A SERIOUS CHALLENGE."  ID., AT
5.); S. REP. NO. 1478, 85TH CONG., 2D SESS. 7-11 ("WE ABHOR  ...  THE
IDEA  ...  THAT THE POLICE DO NOT HAVE THE RIGHT TO REASONABLY
INTERROGATE PERSONS HELD IN CUSTODY PRIOR TO ARRAIGNMENT.  THIS
SUBCOMMITTEE BELIEVE THAT THE POLICE NOT ONLY HAVE THE RIGHT, BUT THEY
HAVE THE DUTY TO CONDUCT REASONABLE INTERROGATION OF PERSONS CHARGED
WITH CRIME."  ID., AT 11.); H.R. REP. NO. 352, 86TH CONG., 1ST SESS. 4,
6-9 ("TO PRECLUDE POLICE QUESTIONING WOULD HAVE A DEVASTATING EFFECT ON
THE CRIMINAL LAW."  ID., AT 4.); ADMISSION OF EVIDENCE IN CERTAIN
CASES, HEARINGS BEFORE SUBCOMMITTEE NO. 2 OF THE COMMITTEE ON THE
JUDICIARY, HOUSE OF REPRESENTATIVES, ON H.R. 3690, 78TH CONG., 1ST
SESS., SER.  NO. 12, 1-10, 27-60; SUPREME COURT DECISIONS, HEARINGS
BEFORE THE SPECIAL SUBCOMMITTEE TO STUDY DECISIONS OF THE SUPREME COURT
OF THE UNITED STATES, OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, 85TH CONG., 2D SESS., SER.  NO. 12, PT. 1, 2-21, 30
101, 157-190; ADMISSION OF EVIDENCE (MALLORY RULE), HEARINGS BEFORE THE
SUBCOMMITTEE ON IMPROVEMENTS IN THE FEDERAL CRIMINAL CODE OF THE
COMMITTEE ON THE JUDICIARY, SENATE, ON H.R. 11477, S. 2970, S. 3325, S.
3355, 85TH CONG., 2D SESS. 22-45, 64-74, 128-149, 160-162; CONFESSIONS
AND POLICE DETENTION, HEARINGS BEFORE THE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS OF THE COMMITTEE ON THE JUDICIARY, SENATE, 85TH
CONG., 2D SESS. 2-8, 119-141; 93 CONG. REC. 1390; 105 CONG. REC.
12863; WICKERSHAM, THE SUPREME COURT AND FEDERAL CRIMINAL PROCEDURE, 44
CORNELL L.Q.  14, 19-22 (1958); INBAU, THE CONFESSION DILEMMA IN THE
UNITED STATES SUPREME COURT, 43 ILL. L. REV. 442 (1948); INBAU, LAW AND
POLICE PRACTICE:  RESTRICTIONS IN THE LAW OF INTERROGATION AND
CONFESSIONS, 52 NW. U.L. REV. 77, 80-82 (1957); HALL, POLICE AND LAW IN
A DEMOCRATIC SOCIETY, 28 IND. L.J. 133, 176 (1953); CF. IV. WICKERSHAM,
AT 173-174.  AND SEE WILLIAMS, QUESTIONING BY THE POLICE:  SOME
PRACTICAL CONSIDERATIONS, (1960) CRIM. L. REV. 325, 332-334, 340-341. 

FN18  SEE COAKLEY, LAW AND POLICE PRACTICE:  RESTRICTIONS IN THE LAW
OF ARREST, 52 NW. U.L. REV. 2, 8-10 (1957), CRITICIZING AS POSSIBLY TOO
SHORT, IN SOME CASES, THE TWENTY-FOUR-HOUR MAXIMUM PREHEARING DETENTION
PERIOD PROVIDED BY SEC. 11 OF THE UNIFORM ARREST ACT.  THE ACT IS FOUND
IN WARNER, THE UNIFORM ARREST ACT, 28 VA. L. REV. 315, 343, 347
(1942). 

FN19  SEE MULBAR, INTERROGATION (1951), 18-19. 

FN20  SEE CONFESSIONS AND POLICE DETENTION, HEARINGS, SUPRA, NOTE 17,
AT 117-118; H.R. REP. NO. 352, 86TH CONG., 1ST SESS. 8.  SEE ALSO
KAUPER, JUDICIAL EXAMINATION OF THE ACCUSED - A REMEDY FOR THE THIRD
DEGREE, 30 MICH. L. REV. 1224, 1247 (1932), SUGGESTING THAT THE
PRESENCE OF COUNSEL WOULD BE OBSTRUCTIVE EVEN AT AN INTERROGATION WHERE
THE ACCUSED WAS DEPRIVED OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION. 
IT IS SIGNIFICANT THAT CRITICS OF FRENCH CRIMINAL PROCEDURE ATTRIBUTE
THE PRESENCE OF THIRD-DEGREE METHODS AND EXTRA-JUDICIAL POLICE
INTERROGATION IN FRANCE TO THE IMPEDIMENT TO JUDICIAL INQUISITION
INTRODUCED BY THE LAW OF 1897, GIVING SUSPECTS THE RIGHT TO BE
REPRESENTED BY COUNSEL BEFORE THE JUGE D'INSTRUCTION.  HAMSON, THE
PROSECUTION OF THE ACCUSED - ENGLISH AND FRENCH LEGAL METHODS, (1955)
CRIM. L. REV. 272, 275-276, 278; VOUIN, THE PROTECTION OF THE ACCUSED
IN FRENCH CRIMINAL PROCEDURE, 5 INT'L & COMP. L.Q. 1, 17 (1956). 

FN21  THESE INVOLVE, AS SIR PATRICK DEVLIN PUT IT, "THE RECOGNITION,
BY EVERY SYSTEM OF LAW IN WHICH THE LIBERTY OF THE SUBJECT IS
CONSIDERED, THAT INQUIRY INTO CRIME CANNOT BE LEFT SIMPLY TO
ADMINISTRATIVE DISCRETION.  IN MOST SYSTEMS IT HAS BEEN FOUND NECESSARY
TO REGULATE, FORMALLY OR INFORMALLY, THE POWER OF INTERROGATION." 
DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND (1958), 13-14. 

FN22  FOR THE HISTORY OF THIS EPISODE IN ENGLISH JUDICIAL PRACTICE
SEE 5 HOLDSWORTH, A HISTORY OF ENGLISH LAW (1924), 184-196; LOWELL, THE
JUDICIAL USE OF TORTURE, 11 HARV.  L. REV. 220, 290 (1897). 

FN23  PATRICK HENRY, IN 3 ELLIOT'S DEBATES (2D ED. 1891), 447-448:  "
...  WHAT HAS DISTINGUISHED OUR ANCESTORS?  - THAT THEY WOULD NOT
ADMIT OF TORTURES, OR CRUEL AND BARBAROUS PUNISHMENT.  BUT IN THE
ABSENCE OF A BILL OF RIGHTS CONGRESS MAY INTRODUCE THE PRACTICE OF THE
CIVIL LAW, IN PREFERENCE TO THAT OF THE COMMON LAW.  THEY MAY INTRODUCE
THE PRACTICE OF FRANCE, SPAIN, AND GERMANY - OF TORTURING, TO EXTORT A
CONFESSION OF THE CRIME.  THEY WILL SAY THAT THEY MIGHT AS WELL DRAW
EXAMPLES FROM THOSE COUNTRIES AS FROM GREAT BRITAIN, AND THEY WILL TELL
YOU THAT THERE IS SUCH A NECESSITY OF STRENGTHENING THE ARM OF
GOVERNMENT, THAT THEY MUST HAVE A CRIMINAL EQUITY, AND EXTORT
CONFESSION BY TORTURE, IN ORDER TO PUNISH WITH STILL MORE RELENTLESS
SEVERITY.  WE ARE THEN LOST AND UNDONE." 

FN24  SEE GILBERT ON EVIDENCE (3D ED. 1769) 140:  "  ...  BUT THEN
THIS CONFESSION MUST BE VOLUNTARY AND WITHOUT COMPULSION; FOR OUR LAW
IN THIS DIFFERS FROM THE CIVIL LAW, THAT IT WILL NOT FORCE ANY MAN TO
ACCUSE HIMSELF; AND IN THIS WE DO CERTAINLY FOLLOW THE LAW OF NATURE,
WHICH COMMANDS EVERY MAN TO ENDEAVOR HIS OWN PRESERVATION; AND
THEREFORE PAIN AND FORCE MAY COMPEL MEN TO CONFESS WHAT IS NOT THE
TRUTH OF FACTS, AND CONSEQUENTLY SUCH EXTORTED CONFESSIONS ARE NOT TO
BE DEPENDED ON."  AND SEE BROWN V. WALKER, 161 U.S. 591, 596-597; 1
COOLEY'S CONSTITUTIONAL LIMITATIONS (8TH ED. 1927) 647-648; CF. 2 STORY
ON THE CONSTITUTION (4TH ED. 1873) SEC. 1788. 

OF COURSE, THE CONTINENTAL COUNTRIES WHICH EMPLOY INQUISITORIAL MODES
OF CRIMINAL PROCEDURE HAVE THEMSELVES LONG AGO GIVEN UP RELIANCE UPON
THE TORTURES WHICH THEY ONCE USED TO WRING INCRIMINATING INFORMATION
OUT OF THE ACCUSED AND WHICH WERE A SALIENT FEATURE OF THE
INQUISITORIAL SYSTEM AT THE TIME THAT THE ENGLISH DEFINITELY REJECTED
IT IN THE SEVENTEENTH CENTURY.  FOR DESCRIPTIONS OF THE DEVELOPMENT AND
MODERN CHARACTER OF THE INQUISITORIAL METHOD, SEE KEEDY, THE
PRELIMINARY INVESTIGATION OF CRIME IN FRANCE, 88 U. OF PA. L. REV. 385,
692, 915 (1940); GARNER, CRIMINAL PROCEDURE IN FRANCE, 25 YALE L.J. 255
(1916); PLOSCOWE, THE DEVELOPMENT OF PRESENT-DAY CRIMINAL PROCEDURES IN
EUROPE AND AMERICA, 48 HARV. L. REV. 433 (1935); HAMSON, THE
PROSECUTION OF THE ACCUSED - ENGLISH AND FRENCH LEGAL METHODS, (1955)
CRIM. L. REV. 272; AND SEE VOUIN, PROVISIONAL RELEASE IN FRENCH PENAL
LAW, 108 U. OF PA. L. REV. 355 (1960).  A DESCRIPTION OF THE CAREFUL
PROCEDURAL SAFEGUARDS WHICH THE INQUISITORIAL SYSTEM NOW MAINTAINS IS
FOUND IN VOUIN, THE PROTECTION OF THE ACCUSED IN FRENCH CRIMINAL
PROCEDURE, 5 INT'L & COMP. L.Q. 1 (1956), AND AN INTERESTING STUDY OF
SOME OF THOSE SAFEGUARDS IN OPERATION IN A PARTICULAR CASE IS VOUIN,
L'AFFAIRE DRUMMOND, (1955) CRIM. L. REV. 5. 

FN25  REX V. RUDD, 1 COWP.  331, 334.  SEE IBRAHIM V. REX, (1914)
A.C. 599, 609-610 (P.C.).  WIGMORE, IT IS TRUE, ATTRIBUTES TO THE
ENGLISH EXCLUSIONARY RULE THE SOLE PURPOSE OF ASSURING THE RELIABILITY
OF EVIDENCE.  SEE 3 WIGMORE ON EVIDENCE (3D ED. 1940) SECS.  815-867. 
THERE CAN BE NO DOUBT, OF COURSE, THAT THE FEAR OF FALSE CONFESSIONS
PLAYED A LARGE PART IN THE ADOPTION OF THE RULE.  SEE REX V.
WARICKSHALL, 1 LEACH 298, 299-300; 3 RUSSELL ON CRIMES (6TH ED. 1896)
478, N. (E).   BUT IT IS EQUALLY CLEAR THAT THERE SOON MINGLED WITH
THIS ORIGINAL AND AT FIRST EXCLUSIVE IMPETUS ANOTHER INDEPENDENT AND
SUFFICIENT, ALTHOUGH HISTORICALLY DIVERSE, REASON FOR THE RULE:  THE
CONCEPTION THAT THE USE OF EXTORTED CONFESSIONS SET AT NAUGHT THE
UNDERLYING TENET OF THE ACCUSATORIAL SYSTEM, THAT MEN MIGHT NOT BE
COMPELLED TO SPEAK WHAT WOULD CONVICT THEM.  SEE GILBERT ON EVIDENCE,
QUOTED NOTE 24, SUPRA.  QUITE APART FROM TESTIMONIAL UNRELIABILITY,
WHERE IT APPEARED THAT COERCION HAD BEEN APPLIED TO EXTRACT EXTRA
JUDICIAL INCRIMINATING STATEMENTS, THE COURTS REFUSED TO BE PARTY TO
SUCH PROCEEDINGS.  REGINA V. JARVIS, 10 COX C.C. 574, 576 (CRIM. APP.);
REGINA V. THOMPSON (1893) 2 Q.B. 12, 18-19 (DR. CAS. RES.); CHALMERS V.
H.M. ADVOCATE, (1954) SESS. CAS. 66, 78-79, 81-82 (J.C.); O'BRIEN, J.,
DISSENTING IN REGINA V. JOHNSTON, 15 IRISH COMMON LAW REPORTS 60, 87,
88.  COMPARE BRAM V. UNITED STATES, 168 U.S. 532, 543.  AND SEE
MCCORMICK, THE SCOPE OF PRIVILEGE IN THE LAW OF EVIDENCE, 16 TEX. L.
REV. 447, 451-457 (1938); SMITH, PUBLIC INTEREST AND THE INTERESTS OF
THE ACCUSED IN THE CRIMINAL PROCESS - REFLECTIONS OF A SCOTTISH LAWYER,
32 TULANE L.  REV. 349, 354-355 (1958); LOWELL, THE JUDICIAL USE OF
TORTURE, 11 HARV. L. REV. 220, 290, 296 (1897).  IN THIS WAY, THE
CONCEPTIONS UNDERLYING THE RULE EXCLUDING COERCED CONFESSIONS AND THE
PRIVILEGE AGAINST SELF-INCRIMINATION HAVE BECOME TO SOME EXTENT,
ASSIMILATED.  SEE 1 STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND
(1883), 440; 1 TAYLOR ON EVIDENCE (12TH ED. 1931) 556; FRAENKEL, FROM
SUSPICION TO ACCUSATION, 51 YALE L.J. 748, 753 (1942); REPORT OF THE
ROYAL COMMISSION ON POLICE POWERS AND PROCEDURES (CMD.  3297)(1929) 24;
IV WICKERSHAM, AT 26-27.  OUR OWN DECISIONS ENFORCING THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT HAVE MADE CLEAR THAT "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."  LISENBA V. CALIFORNIA, 314 U.S. 219, 236.  SEE
ROGERS V. RICHMOND, 365 U.S. 534, AND AUTHORITIES CITED THEREIN.  AND
SEE STATE V. SMITH, 32 N.J. 501, 541-544, 161 A.2D 520, 541-543
(1960). 

FN26  SEE MCNABB V. UNITED STATES, 318 U.S. 332, 342-343, N. 7.  THE
MOST PREVALENT AMERICAN PROVISION IS THAT REQUIRING JUDICIAL
EXAMINATION "WITHOUT UNNECESSARY DELAY."  SEE, E.G., FED. RULES CRIM.
PROC., 5(A); CAL PENAL CODE, SEC. 849; ILL. REV. STAT., 1959, C. 38,
SEC. 660; N.Y. CODE CRIM. PROC., SEC. 165; AMERICAN LAW INSTITUTE, CODE
CRIM.  PROC., 1931, SECS. 6, 35; AND SEE 1 ALEXANDER, THE LAW OF ARREST
(1949), 623-633.  SOME JURISDICTIONS FIX SPECIFIC PERIODS OF
PERMISSIBLE PRE-EXAMINATION DETENTION.  SEE CAL.  PENAL CODE, SEC. 825
(WITHOUT UNNECESSARY DELAY; TWO-DAY MAXIMUM); MO. REV. STAT., 1959,
SEC. 544.170 (TWENTY HOURS UNLESS PRISONER CHARGED AND HELD BY
WARRANT); N.H. REV. STAT., 1955, SECS. 594:2, 594:19, 594:20, 594:22,
594:23 (FOUR-HOUR DETENTION WITHOUT ARREST IN CERTAIN CASES; TWENTY
FOUR HOURS AFTER NIGHT ARREST; EXAMINATION WITHOUT UNREASONABLE DELAY
IF ARREST IS BY WARRANT; OTHER ARRESTS REQUIRE PROMPT EXAMINATION;
TWENTY-FOUR-HOUR MAXIMUM); R.I. GEN. LAWS, 1956, SEC. 12-7-1, 12-7-13
(TWO-HOUR DETENTION WITHOUT ARREST IN CERTAIN CASES; TWENTY-FOUR HOURS
AFTER ARREST).  JUDICIAL DECISIONS AS TO WHAT CONSTITUTES UNNECESSARY
OR UNREASONABLE DELAY, UNDER THE PERTINENT STATUTES OR AT COMMON LAW,
ARE NOT WHOLLY HARMONIOUS.  COMPARE KEEFE V. HART, 213 MASS. 476, 100
N.E. 558 (JURY COULD FIND ONE AND A QUARTER HOURS UNLAWFUL), WITH LYNN
V. WEAVER, 251 MICH, 265, 231 N.W. 579 (FOUR HOURS LAWFUL); MADSEN V.
HUTCHISON, 49 IDAHO 358, 290 P. 208 (FIVE HOURS UNLAWFUL AS MATTER OF
LAW; NO EXTENUATING CIRCUMSTANCES FOUND), WITH HAGGARD V. FIRST NAT.
BANK OF MANDAN, 72 N.D. 434, 8 N.W.2D 5 (JURY CAN FIND FIVE HOURS
LAWFUL UNDER CIRCUMSTANCES); DRAGNA V. WHITE, 45 CAL. 2D 469, 473, 289
P.2D 428, 430 (DICTUM THAT LESS THAN TWO DAYS MAY BE UNLAWFUL UNDER
CAL. PENAL CODE, SEC. 825), WITH PEOPLE V. SEWELL, 95 CAL. APP. 2D 850,
856, 214 P.2D 113, 117 (SUGGESTION THAT TWO-DAY DETENTION IS LAWFUL
UNDER SEC. 825; NO CONSIDERATION OF CIRCUMSTANCES).  CASES CAN BE FOUND
HOLDING NECESSARY OR REASONABLE RELATIVELY LONG PERIODS OF DELAY. 
E.G., PEOPLE V. KELLY, 404 ILL. 281, 288, 89 N.E.2D 27, 30-31, SEMBLE;
COMMONWEALTH V. BANUCHI, 335 MASS. 649, 141 N.E.2D 835; MULBERRY V.
FUELLHART, 203 PA. 573, 53 A. 504; PELOQUIN V. HIBNER, 231 WIS. 77, 285
N.W. 380 (ALTERNATIVE HOLDING); UNITED STATES EX REL. GOODCHILD V.
BURKE, 245 F.2D 88 (C.A. 7TH CIR.)(WISCONSIN LAW).  BUT SEE MALLORY V.
UNITED STATES, 354 U.S. 449. 

OUTSIDE THE UNITED STATES, TOO, LEGISLATION REQUIRING THAT ARRESTED
PERSONS BE BROUGHT BEFORE A MAGISTRATE WITHIN SOME FIXED PERIOD OF TIME
IS COMMON, ALTHOUGH THE PERIOD FIXED VARIES FROM COUNTRY TO COUNTRY. 
SEE, E.G., CRIMINAL CODE OF CANADA, SEC. 438(2)(TWENTY-FOUR HOURS
WHENEVER A JUSTICE IS AVAILABLE WITHIN TWENTY-FOUR HOURS; IF NOT, AS
SOON THEREAFTER AS POSSIBLE); MAGISTRATES' COURTS ACT, 1952, 15 & 16
GEO. VI & 1 ELIZ.  II, C. 55, SEC. 38 (POLICE MUST RELEASE ON
RECOGNIZANCE PERSONS ARRESTED WITHOUT WARRANT WHO CANNOT PRACTICABLY BE
BROUGHT BEFORE A MAGISTRATE WITHIN TWENTY-FOUR HOURS, UNLESS THE
OFFENSE IS SERIOUS); CRIMINAL PROCEDURE (SCOTLAND) ACT, 1887, 50 & 51
VICT., C. 35, SEC. 17 (EXAMINATION ON DECLARATION MAY BE DELAYED FORTY
EIGHT HOURS TO PERMIT PERSON ARRESTED TO SECURE COUNSEL); COMPARE THE
NEW FRENCH CODE DE PROCEDURE PENALE, ARTS. 63, 77, 154 (TWENTY-FOUR
HOUR DETENTIONS FOR INVESTIGATION IN CERTAIN CASES).  FOR DISCUSSION OF
SUCH FOREIGN REGULATIONS, SEE WORKING PAPERS E THROUGH V, UNITED
NATIONS, 1958 SEMINAR ON THE PROTECTION OF HUMAN RIGHTS IN CRIMINAL LAW
AND PROCEDURE, BAGUIO CITY, PHILIPPINES (1958), AND THE SYMPOSIUM: THE
COMPARATIVE STUDY OF CONDITIONAL RELEASE, 108 U. OF PA. L. REV. 290-365
(1960). 

IN SUM, IT SEEMS FAIR TO SAY THAT THERE IS UNANIMITY FOR THE
PROPOSITION THAT "STRICT OBSERVANCE OF SOME REASONABLY DEFINITE AND
RATHER SHORT TIME-LIMIT FOR THE DETENTION OF A PRISONER AFTER ARREST
WITHOUT JUDICIAL SANCTION IS VITAL TO PERSONAL LIBERTY."  STATEMENT BY
THE COMMITTEE ON THE BILL OF RIGHTS OF THE AMERICAN BAR ASSN.,
SUBMITTED TO SUBCOMMITTEE NO. 2 OF THE COMMITTEE ON THE JUDICIARY,
HOUSE OF REPRESENTATIVES, IN CHAFEE, DOCUMENTS ON FUNDAMENTAL HUMAN
RIGHTS, PAMPHLETS 1-3 (1951-1952), 480.  BUT THERE IS WIDE DIVERGENCE
OF VIEWS CONCERNING HOW DEFINITE IS "REASONABLY DEFINITE" AND HOW SHORT
IS "RATHER SHORT." 

FN27  INSTANCES OF THIRD-DEGREE TREATMENT OF PRISONERS ALMOST
INVARIABLY OCCUR DURING THE PERIOD BETWEEN ARREST AND PRELIMINARY
EXAMINATION.  IV WICKERSHAM, AT 169; ANNUAL REPORT OF THE COMMITTEE ON
CRIMINAL COURTS, LAW AND PROCEDURE FOR 1927-1928 TO THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK, YEAR BOOK, 1928, OF THE ASSN. OF THE
BAR, CITY OF NEW YORK 235, 243, 253; LEIBOWITZ, LAW AND POLICE
PRACTICE:  SAFEGUARDS IN THE LAW OF INTERROGATION AND CONFESSIONS, 52
NW. U.L. REV. 86, 87 (1957); HALL, THE LAW OF ARREST IN RELATION TO
CONTEMPORARY SOCIAL PROBLEMS, 3 U. OF CHI.  L. REV. 345, 357 (1936). 

FN28  E.G., ILL REV. STAT., 1959, C. 38, SEC. 379 (PENALIZING ASSAULT
AND BATTERY OR IMPRISONMENT BY TWO OR MORE PERSONS FOR THE PURPOSE OF
OBTAINING CONFESSIONS); KY. REV.  STAT., 1960, SEC. 422.110 (PENALIZING
ATTEMPTS BY PERSONS HAVING CUSTODY OF PRISONERS CHARGED WITH CRIME TO
OBTAIN INCRIMINATING INFORMATION BY PLYING WITH QUESTIONS, BY THREATS
OR BY OTHER WRONGFUL MEANS; CONFESSION SO OBTAINED MADE INADMISSIBLE IN
EVIDENCE). 

FN29  E.G., CAL. PENAL CODE, SEC. 825 (ATTORNEYS PERMITTED TO SEE
ARRESTED PERSONS; OFFICERS NEGLECTING OR REFUSING TO PERMIT SUCH VISITS
ARE GUILTY OF A MISDEMEANOR AND CIVILLY LIABLE FOR STATUTORY
FORFEITURE); N.H. REV. STAT., 1955, SECS. 594:15, 594:16, 594:17
(RELATIVES, FRIENDS AND ATTORNEY TO BE NOTIFIED OF ARREST AND PERMITTED
TO SEE PERSON ARRESTED; VIOLATION OF THESE PROVISIONS MADE CRIMINAL);
TEX. PENAL CODE, ART. 1176 (MAKES IT UNLAWFUL FOR PERSONS HAVING
PRISONERS IN CUSTODY TO PREVENT PRISONERS' CONSULTATION OR
COMMUNICATION WITH COUNSEL).  FOR CITATION TO STATUTES EMPLOYING
VARIOUS APPROACHES TO ELIMINATION OF THIRD-DEGREE PRACTICES AND THE
PROTECTION OF PRISONERS' INTERESTS, SEE MCCORMICK, SOME PROBLEMS AND
DEVELOPMENTS IN THE ADMISSIBILITY OF CONFESSIONS, 24 TEX. L. REV. 239,
251-254 (1946). 

FN30  UNDER THE INQUISITORIAL SYSTEM AS IT WAS PRACTICED WITH
SYSTEMATIZED TORTURE (THE SYSTEM EMBODIED, FOR EXAMPLE, IN THE FRENCH
ORDINANCE OF 1670), THE RACK WAS APPLIED TO SUSPECTS IN WHOSE CASES THE
PRELIMINARY EXAMINATION HAD DEVELOPED INDICATIONS OF GUILT SUFFICIENT
TO JUSTIFY ITS USE BUT INSUFFICIENT TO SATISFY THE SEVERE BURDEN OF
PROOF NECESSARY TO CONVICTION.  SEE LOWELL, THE JUDICIAL USE OF
TORTURE, 11 HAR.  L. REV. 220, 224-228 (1897). 

FN31  THE INDIAN EVIDENCE ACT.  1872.  SECTION 25 EXCLUDES
CONFESSIONS MADE TO A POLICE OFFICER; SEC. 26 EXCLUDES CONFESSIONS MADE
BY ANY PERSON WHILE IN THE CUSTODY OF A POLICE OFFICER, EXCEPT IN THE
IMMEDIATE PRESENCE OF A MAGISTRATE.  HOWEVER, SEC. 27 PROVIDES THAT
"WHEN ANY FACT IS DEPOSED TO AS DISCOVERED IN CONSEQUENCE OF
INFORMATION RECEIVED FROM A PERSON ACCUSED OF ANY OFFENCE, IN THE
CUSTODY OF A POLICE OFFICER, SO MUCH OF SUCH INFORMATION, WHETHER IT
AMOUNTS TO A CONFESSION OR NOT, AS RELATES DISTINCTLY TO THE FACT
THEREBY DISCOVERED, MAY BE PROVED."  COMPARE THE BILL, REPORTED TO HAVE
PASSED ONE HOUSE OF THE CALIFORNIA LEGISLATURE IN 1929, SET OUT IN
BOOTH, CONFESSIONS, AND METHODS EMPLOYED IN PROCURING THEM, 4 SO.
CALIF. L. REV. 83, 84-85, N. 3A (1930).  AND SEE THE PROVISION
SUBMITTED WITHOUT RECOMMENDATION BY THE COMMISSION ON PENAL PROCEDURE
AT THE SIXTH CONGRESS OF THE INTERNATIONAL ASSOCIATION OF DEMOCRATIC
LAWYERS, IN COE, PRACTICES OF POLICE AND PROSECUTION PRIOR TO TRIAL, 17
LAW.  GUILD REV. 62, 64 (1957). 

FN32  E.G., IBRAHIM V. REX, (1914) A.C. 599 (P.C.); REGINA V. MAY, 36
CR. APP. REP. 91. 

FN33  HOPT V. UTAH, 110 U.S. 574; SPARF AND HANSEN V. UNITED STATES,
156 U.S. 51; PIERCE V. UNITED STATES, 160 U.S. 355.  AND SEE WILSON V.
UNITED STATES, 162 U.S. 613, 623; BILOKUMSKY V. TOD, 263 U.S. 149,
157. 

FN34  CHALMERS V. H.M. ADVOCATE, (1954) SESS. CAS. 66 (J.C.).  AS
EXPRESSED IN THE OPINION OF THE LORD JUSTICE-GENERAL: 

"  ...  THE THEORY OF OUR LAW IS THAT AT THE STAGE OF INITIAL
INVESTIGATION THE POLICE MAY QUESTION ANYONE WITH A VIEW TO ACQUIRING
INFORMATION WHICH MAY LEAD TO THE DETECTION OF THE CRIMINAL; BUT THAT,
WHEN THE STAGE HAS BEEN REACHED AT WHICH SUSPICION, OR MORE THAN
SUSPICION, HAS IN THEIR VIEW CENTRED UPON SOME PERSON AS THE LIKELY
PERPETRATOR OF THE CRIME, FURTHER INTERROGATION OF THAT PERSON BECOMES
VERY DANGEROUS, AND, IF CARRIED TOO FAR, E.G., TO THE POINT OF
EXTRACTING A CONFESSION BY WHAT AMOUNTS TO CROSS-EXAMINATION, THE
EVIDENCE OF THAT CONFESSION WILL ALMOST CERTAINLY BE EXCLUDED."  ID.,
AT 78. 

FN35  UNITED STATES V. CARIGNAN, 342 U.S. 36; CF. UNITED STATES V.
MITCHELL, 322 U.S. 65.  AND SEE BRAM V. UNITED STATES, 168 U.S. 532,
558; ZIANG SUNG WAN V. UNITED STATES, 266 U.S. 1, 14; MCNABB V. UNITED
STATES, 318 U.S. 332, 346. 

FN36  REX V. THORNTON, 1 MOOD.  27; REX V. GILHAM, 1 MOOD.  186; REX
V. VOISIN, (1918) 1 K.B. 531 (CRIM. APP.); REGINA V. STRAFFEN, (1952) 2
Q.B. 911 (CRIM. APP.); AND SEE LAMBE'S CASE, 2 LEACH 552, 554.  IRISH
COURTS REACH THE SAME RESULT.  REX V. GIBNEY, JEBB'S RES. CAS. 14;
REGINA V. JOHNSTON, 15 IRISH COMMON LAW REP. 60 (CRIM. APP.).  SEVERAL
ENGLISH DECISIONS AT THE END OF THE LAST CENTURY APPEARED TO LAY DOWN A
PER SE RULE EXCLUDING CONFESSIONS BY PERSONS QUESTIONED IN CUSTODY, SEE
REGINA V. GAVIN, 15 COX C.C. 656; REGINA V. MALE AND COOPER, 17 COX
C.C. 689, BUT THESE CASES HAVE SINCE BEEN LAID TO REST.  REX V. BEST,
(1909) 1 K.B. 692 (CRIM. APP.).  PERHAPS THE BEST STATEMENT OF THE
CURRENT ENGLISH LAW, SUBJECT TO SOME QUALIFICATION WITH RESPECT TO THE
JUDGES' RULES, SEE TEXT AT NOTES 39-47, INFRA, IS THAT IN REX V.
VOISIN, (1918) 1 K.B.  531, 539 (CRIM. APP.): 

"  ...  THE MERE FACT THAT A STATEMENT IS MADE IN ANSWER TO A
QUESTION PUT BY A POLICE CONSTABLE IS NOT IN ITSELF SUFFICIENT TO MAKE
THE STATEMENT INADMISSIBLE IN LAW.  IT MAY BE, AND OFTEN IS, A GROUND
FOR THE JUDGE IN HIS DISCRETION EXCLUDING THE EVIDENCE; BUT HE SHOULD
DO SO ONLY IF HE THINKS THE STATEMENT WAS NOT A VOLUNTARY ONE  ...  ,
OR WAS AN UNGUARDED ANSWER MADE UNDER CIRCUMSTANCES THAT RENDERED IT
UNRELIABLE, OR UNFAIR FOR SOME REASON TO BE ALLOWED IN EVIDENCE AGAINST
THE PRISONER."  SEE IBRAHIM V. REX, (1914) A.C. 599, 610-614 (P.C.). 

FN37  BOUDREAU V. REX, (1949) 3 D.L.R. 81 (S.C. CAN.); REX V. BELLOS,
(1927) 3 D.L.R.  186 (S.C. CAN.); REGINA V. DAY, 20 ONT.  209 (Q.B.);
REGINA V. ELLIOTT, 31 ONT.  14 (D.C.).  IN CANADA, AS IN ENGLAND,
HOWEVER, TRIAL JUDGES EXERCISE A BROAD DISCRETION TO EXCLUDE
CONFESSIONS BY PRISONERS IN RESPONSE TO POLICE QUESTIONING WHERE, UNDER
ALL THE CIRCUMSTANCES, ADMISSION OF THE CONFESSIONS IS DEEMED UNFAIR. 
SEE REX V. ANDERSON, (1942) 3 D.L.R. 179 (C.A., B.C.).  COMPARE REX V.
KOOTEN, (1926) 4 D.L.R. 771 (K.B., MAN.), WITH THE CANADIAN CASES CITED
IN NOTES 47 AND 48, INFRA.  AND IN BOTH COUNTRIES THE HEAVY BURDEN
PLACED ON THE CROWN AFFIRMATIVELY TO DEMONSTRATE THE VOLUNTARINESS OF
ANY OFFERED STATEMENT AS A CONDITION OF ITS ADMISSIBILITY, REGINA V.
THOMPSON, (1893) 2 Q.B. 12 (CR. CAS. RES.), OFTEN OPERATES TO EXCLUDE
INTERROGATED CONFESSIONS.  SEE, E.G., REX V. CHADWICK, 24 CRIM. APP.
REP. 138 (RECORDER ERRED IN DETERMINING ISSUE OF VOLUNTARINESS ON
DEPOSITIONS; BURDEN IS ON CROWN AFFIRMATIVELY TO SHOW THAT CONFESSION
IS VOLUNTARY); REX V. DICK, (1947) 2 D.L.R. 213 (C.A., ONT.); REX V.
HOWLETT, (1950) 2 D.L.R. 517 (C.A., ONT.).  THE CANADIAN LAW IS
DISCUSSED IN KAUFMAN, THE ADMISSIBILITY OF CONFESSIONS IN CRIMINAL
MATTERS (1960). 

FN38  ALABAMA:  INGRAM V. STATE, 252 ALA. 497, 42 SO. 2D 36 (1949);
MYHAND V. STATE, 259 ALA. 415, 66 SO. 2D 544 (1953).  ARIZONA:  STATE
V. MILLER, 62 ARIZ. 529, 158 P.2D 669 (1945); HIGHTOWER V. STATE, 62
ARIZ. 351, 158 P.2D 156 (1945), SEMBLE; STATE V. JORDAN, 83 ARIZ. 248,
320 P.2D 446 (1958), SEMBLE.  ARKANSAS:  STATE V. BROWNING, 206 ARK.
791, 178 S.W.2D 77 (1944); MOORE V. STATE, 229 ARK. 335, 315 S.W.2D 907
(1958); AND SEE DORSEY V. STATE, 219 ARK. 101, 240 S.W.2D 30 (1951). 
CALIFORNIA:  PEOPLE V. BASHOR, 48 CAL. 2D 763, 312 P.2D 255 (1957); AND
SEE ROGERS V. SUPERIOR COURT, 46 CAL. 2D 3, 291 P.2D 929 (1955). 
COLORADO: CAHILL V. PEOPLE, 111 COLO. 29, 137 P.2D 673 (1943); DOWNEY
V. PEOPLE, 121 COLO. 307, 215 P.2D 892 (1950); LEICK V. PEOPLE, 136
COLO. 535, 322 P.2D 674 (1958).  CONNECTICUT:  STATE V. ZUKAUSKAS, 132
CONN. 450, 45 A.2D 289 (1945); STATE V. BUTEAU, 136 CONN. 113, 68 A.2D
681 (1949); AND SEE STATE V. GUASTAMACHIO, 137 CONN. 179, 75 A.2D 429
(1950).  DELAWARE:  GARNER V. STATE, 51 DEL. 301, 145 A.2D 68 (1958). 
FLORIDA: GRAHAM V. STATE, 91 SO. 2D 662 (FLA. 1956); SINGER V. STATE,
109 SO. 2D 7, 26 (FLA. 1959); AND SEE FINLEY V. STATE, 153 FLA. 394, 14
SO. 2D 844 (1943); ROLLINS V. STATE, 41 SO.  2D 885 (FLA. 1949). 
GEORGIA:  BRYANT V. STATE, 191 GA. 686, 13 S.E.2D 820 (1941), 197 GA.
641, 30 S.E.2D 259 (1944); RUSSELL V. STATE, 196 GA. 275, 26 S.E.2D 528
(1943); AND SEE FERGUSON V. STATE, 215 GA. 117, 109 S.E.2D 44 (1959),
REV'D ON OTHER GROUNDS, 365 U.S. 570.  HAWAII:  TERRITORY V. YOUNG AND
NOZAWA, 37 HAW.  189 (1945); TERRITORY V. AQUINO, 43 HAW.  347 (1959). 
IDAHO:  STATE V. BEHLER, 65 IDAHO 464, 146 P.2D 338 (1944), SEMBLE; AND
SEE STATE V. JOHNSON, 74 IDAHO 269, 261 P.2D 638 (1953).  ILLINOIS:
PEOPLE V. LAZENBY, 403 ILL. 95, 85 N.E.2D 660 (1949); PEOPLE V. HALL,
413 ILL. 615, 110 N.E.2D 249 (1953); DAVIES V. PEOPLE, 10 ILL. 2D 11,
139 N.E.2D 216 (1956); PEOPLE V. GOARD, 11 ILL. 2D 495, 144 N.E.2D 603
(1957); NAPUE V. PEOPLE, 13 ILL. 2D 566, 571, 150 N.E.2D 613, 616
(1958)(DICTUM), REV'D ON OTHER GROUNDS, 360 U.S. 264; PEOPLE V. MILLER,
13 ILL.  2D 84, 148 N.E.2D 455 (1958); AND SEE PEOPLE V. LETTRICH, 413
ILL. 172, 108 N.E.2D 488 (1952).  INDIANA:  KRAUSS V. STATE, 229 IND.
625, 100 N.E.2D 824 (1951); PEARMAN V. STATE, 233 IND. 111, 117 N.E.2D
362 (1954); AND SEE DAVIS V. STATE, 235 IND. 620, 137 N.E.2D 30
(1956).  IOWA:  STATE V. WILLIAMS, 245 IOWA 494, 62 N.W.2D 742 (1954);
STATE V. HARRIOTT, 248 IOWA 25, 79 N.W.2D 332 (1956); STATE V.
TRIPLETT, 248 IOWA 339, 79 N.W.2D 391 (1956).  KANSAS:  STATE V.
VARGAS, 180 KAN. 716, 308 P.2D 81 (1957); AND SEE STATE V. SMITH, 158
KAN. 645, 149 P.2D 600 (1944).  KENTUCKY:  COMMONWEALTH V. MAYHEW, 297
KY. 172, 178 S.W.2D 928 (1943); CURTIS V. COMMONWEALTH, 312 KY. 205,
226 S.W.2D 753 (1949); REED V. COMMONWEALTH, 312 KY. 214, 226 S.W.2D
513 (1949); MILAM V. COMMONWEALTH, 275 S.W. 921 (KY. 1955); KARL V.
COMMONWEALTH, 288 S.W.2D 628 (KY. 1956).  LOUISIANA:  STATE V. HOLMES,
205 LA. 730, 18 SO. 2D 40 (1944); STATE V. JOSEPH, 217 LA. 175, 46 SO.
2D 118 (1950); STATE V. SOLOMON, 222 LA. 269, 62 SO. 2D 481 (1952);
STATE V. WESTON, 232 LA. 766, 95 SO. 2D 305 (1957); AND SEE STATE V.
GREEN, 221 LA. 713, 60 SO. 2D 208 (1952).  MAINE: STATE V. PRIEST, 117
ME. 223, 103 A. 359 (1918).  MARYLAND:  COX V. STATE, 192 MD. 525, 64
A.2D 732 (1949); JAMES V. STATE, 193 MD. 31, 65 A.2D 888 (1949);
MERCHANT V. STATE, 217 MD. 61, 141 A.2D 487 (1958).  MASSACHUSETTS:
COMMONWEALTH V. MABEY, 299 MASS. 96, 12 N.E.2D 61 (1937); COMMONWEALTH
V. BANUCHI, 335 MASS. 649, 141 N.E.2D 835 (1957).  MICHIGAN:  PEOPLE V.
LA PANNE, 255 MICH. 38, 237 N.W. 38 (1931), SEMBLE; AND SEE PEOPLE V.
HAMILTON, 359 MICH, 410, 416-417, 102 N.W.2D 738 (1960).  MINNESOTA:
STATE V. SCHABERT, 222 MINN. 261, 24 N.W.2D 846 (1946).  MISSISSIPPI:
WINSTON V. STATE, 209 MISS.  799, 48 SO. 2D 513 (1950), SEMBLE; CROUSE
V. STATE, 229 MISS.  15, 89 SO. 2D 919 (1956), SEMBLE.  MISSOURI:
STATE V. ELLIS, 354 MO. 998, 193 S.W.2D 31 (1946); STATE V. FRANCIES,
295 S.W.2D 8 (MO. 1956); STATE V. SMITH, 310 S.W.2D 845 (MO. 1958); AND
SEE STATE V. LEE, 361 MO. 163, 233 S.W.2D 666 (1950).  MONTANA:  STATE
V. DIXSON, 80 MONT.  181, 260 P. 138 (1927); STATE V. ROBUCK, 126 MONT.
302, 248 P.2D 817 (1952).  NEBRASKA: KITTS V. STATE, 151 NEB. 679, 39
N.W.2D 283 (1949); GALLEGOS V. STATE, 152 NEB. 831, 43 N.W.2D 1 (1950),
AFF'D, 342 U.S. 55; PARKER V. STATE, 164 NEB. 614, 83 N.W.2D 347
(1957).  NEVADA:  STATE V. BOUDREAU, 67 NEV. 36, 214 P.2D 135 (1950);
EX PARTE SEFTON, 73 NEV. 2, 306 P.2D 771 (1957).  NEW HAMPSHIRE:  STATE
V. HOWARD, 17 N.H. 171 (1845); AND SEE STATE V. GEORGE, 93 N.H. 408, 43
A.2D 256 (1945).  NEW JERSEY:  STATE V. PIERCE, 4 N.J. 252, 72 A.2D 305
(1950); STATE V. COOPER, 10 N.J. 532, 92 A.2D 786 (1952); STATE V.
GRILLO, 11 N.J. 173, 93 A.2D 328 (1952); STATE V. WISE, 19 N.J. 59, 115
A.2D 62 (1955); STATE V. SMITH, 32 N.J. 501, 161 A.2D 520 (1960).  NEW
MEXICO:  STATE V. LINDEMUTH, 56 N.M. 257, 243 P.2D 325 (1952); STATE V.
GRIEGO, 61 N.M. 42, 294 P.2D 282 (1956); STATE V. PADILLA, 66 N.M. 289,
347 P.2D 312 (1959).  NEW YORK:  PEOPLE V. PEREZ, 300 N.Y. 208, 90
N.E.2D 40 (1949); PEOPLE V. SPANO, 4 N.Y.2D 256, 150 N.E.2D 226 (1958),
REV'D, 360 U.S. 315; PEOPLE V. VARGAS, 7 N.Y.2D 555, 166 N.E.2D 831
(1960); AND SEE PEOPLE V. ALEX, 265 N.Y. 192, 192 N.E. 289 (1934);
PEOPLE V. ELMORE, 277 N.Y. 397, 14 N.E.2D 451 (1938); PEOPLE V.
LOVELLO, 1 N.Y.2D 436, 136 N.E.2D 483 (1956).  BUT SEE PEOPLE V. DI
BIASI, 7 N.Y.2D 544, 166 N.E.2D 825 (1960)(POST-INDICTMENT).  NORTH
CAROLINA:  STATE V. BROWN, 233 N.C. 202, 63 S.E.2D 99 (1951); STATE V.
ROGERS, 233 N.C. 390, 64 S.E.2D 572 (1951); STATE V. DAVIS, 253 N.C.
86, 116 S.E.2D 365 (1960).  NORTH DAKOTA:  STATE V. NAGEL, 75 N.D.
495, 28 N.W.2D 665 (1947); STATE V. BRAATHEN, 77 N.D. 309, 43 N.W.2D
202 (1950).  OHIO: STATE V. COLLETT, 58 N.E.2D 417 (OHIO APP. 1944),
APP. DISM'D, 144 OHIO ST. 639, 60 N.E.2D 170 (1945); STATE V. LOWDER,
79 OHIO APP. 237, 72 N.E.2D 785 (1946), APP. DISM'D, 147 OHIO ST. 530,
72 N.E.2D 102 (1947).  OKLAHOMA:  FRY V. STATE, 78 OKLA. CR. 299 P.2D
196 (1951); THACKER V. STATE, 309 P.2D 306 (OKLA, CR., 1957); AND SEE
APPLICATION OF FOWLER, 356 P.2D 770, 778 (OKLA, CR., 1960).  OREGON:
STATE V. FOLKES, 174 ORE.  568, 150 P.2D 17 (1944); STATE V. NUNN, 212
ORE.  546, 321 P.2D 356 (1958); AND SEE STATE V. LELAND, 190 ORE.  598,
227 P.2D 785 (1951), AFF'D, 343 U.S. 790 (1952).  PENNSYLVANIA:
COMMONWEALTH V. AGOSTON, 364 PA. 464, 72 A.2D 575 (1950); COMMONWEALTH
V. BIBALO, 375 PA. 257, 100 A.2D 45 (1953); COMMONWEALTH EX REL.
SLEIGHTER V. BANMILLER, 392 PA. 133, 139 A.2D 918 (1958).  RHODE
ISLAND:  STATE V. ANDREWS, 86 R.I. 341, 134 A.2D 425 (1957).  SOUTH
CAROLINA:  STATE V. BROWN, 212 S.C. 237, 47 S.E.2D 521 (1948); STATE V.
BULLOCK, 235 S.C. 356, 111 S.E.2D 657 (1959); AND SEE STATE V.
CHASTEEN, 228 S.C. 88, 88 S.E.2D 880 (1955).  SOUTH DAKOTA:  STATE V.
LANDERS, 21 S.D. 606, 114 N.W. 717 (1908); STATE V. NICHOLAS, 62 S.D.
511, 253 N.W. 737 (1934), SEMBLE.  TENNESSEE:  WYNN V. STATE, 181 TENN.
325, 181 S.W.2D 332 (1944); FORD V. STATE, 184 TENN. 443, 201 S.W.2D
539 (1945); TAYLOR V. STATE, 191 TENN. 670, 235 S.W.2D 818 (1950); AND
SEE MCGHEE V. STATE, 183 TENN. 20, 189 S.W.2D 826 (1945); ACKLEN V.
STATE, 196 TENN. 314, 267 S.W.2D 101 (1954).  TEXAS: DIMERY V. STATE,
156 TEX. CR. R. 197, 240 S.W.2D 293 (1951); LEVINESS V. STATE, 157 TEX.
CR. R. 160, 247 S.W.2D 115 (1952); GOLEMON V. STATE, 157 TEX. CR. R.
534, 247 S.W.2D 119 (1952); LEFORS V. STATE, 161 TEX. CR. R. 544, 278
S.W.2D 837 (1954); WALKER V. STATE, 162 TEX. CR. R. 408, 286 S.W.2D 144
(1955); CHILDRESS V. STATE, 166 TEX. CR. R. 95, 312 S.W.2D 247 (1958). 
UTAH:  MARES V. HILL, 118 UTAH 484, 222 P.2D 811 (1950); AND SEE STATE
V. GARDNER, 119 UTAH 579, 230 P.2D 559 (1951); STATE V. BRAASCH, 119
UTAH 450, 229 P.2D 289 (1951).  VERMONT:  STATE V. BLAIR, 118 VT. 81,
99 A.2D 677 (1953); STATE V. GOYET, 120 VT. 12, 132 A.2D 623 (1957). 
VIRGINIA:  JAMES V. COMMONWEALTH, 192 VA. 713, 66 S.E.2D 513 (1951);
CAMPBELL V. COMMONWEALTH, 194 VA. 825, 75 S.E.2D 468 (1953); MENDOZA V.
COMMONWEALTH, 199 VA. 961, 103 S.E.2D 1 (1958).  WASHINGTON:  STATE V.
WINTERS, 39 WASH. 2D 545, 236 P.2D 1038 (1951); STATE V. JOHNSON, 53
WASH. 2D 666, 335 P.2D 809 (1959).  WEST VIRGINIA:  STATE V. DIGMAN,
121 W.VA. 499, 5 S.E.2D 113 (1939); STATE V. BRUNER, 143 W.VA. 755, 105
S.E.2D 140 (1958); AND SEE STATE V. BRADY, 104 W.VA. 523, 140 S.E. 546
(1927).  WISCONSIN:  STATE V. FRANSISCO, 257 WIS. 247, 43 N.W.2D 38
(1950); KIEFER V. STATE, 258 WIS. 47, 44 N.W.2D 537 (1950); STATE V.
BABICH, 258 WIS. 290, 45 N.W.2D 660 (1951); STATE V. STORTECKY, 273
WIS. 362, 77 N.W.2D 721 (1956); STATE V. BRONSTON, 7 WIS. 2D 627, 97
N.W.2D 504, 98 N.W.2D 468 (1959).  WYOMING: MORTIMORE V. STATE, 24 WYO.
452, 161 P. 766 (1916); STATE V. LANTZER, 55 WYO. 230, 99 P.2D 73
(1940). 

FN39  REGINA V. BERRIMAN, 6 COX C.C. 388, 388-389 ("I VERY MUCH
DISAPPROVE OF THIS PROCEEDING.  BY THE LAW OF THIS COUNTRY, NO PERSON
OUGHT TO BE MADE TO CRIMINATE HIMSELF, AND NO POLICE OFFICER HAS ANY
RIGHT, UNTIL THERE IS CLEAR PROOF OF A CRIME HAVING BEEN COMMITTED, TO
PUT SEARCHING QUESTIONS TO A PERSON FOR THE PURPOSE OF ELICITING FROM
HIM WHETHER AN OFFENCE HAS BEEN PERPETRATED OR NOT.  IF THERE IS
EVIDENCE OF AN OFFENCE, A POLICE OFFICER IS JUSTIFIED, AFTER A PROPER
CAUTION, IN PUTTING TO A SUSPECTED PERSON INTERROGATORIES WITH A VIEW
TO ASCERTAINING WHETHER OR NOT THERE ARE FAIR AND REASONABLE GROUNDS
FOR APPREHENDING HIM.  EVEN THIS COURSE SHOULD BE VERY SPARINGLY
RESORTED TO  ...  I WISH IT TO GO FORTH AMONGST THOSE WHO ARE INFERIOR
OFFICERS IN THE ADMINISTRATION OF JUSTICE, THAT SUCH A PRACTICE IS
ENTIRELY OPPOSED TO THE SPIRIT OF OUR LAW."); REGINA V. MICK, 3 F.&F.
822, 823 ("I ENTIRELY DISAPPROVE OF THE SYSTEM OF POLICE OFFICERS
EXAMINING PRISONERS.  THE LAW HAS SURROUNDED PRISONERS WITH GREAT
PRECAUTIONS TO PREVENT CONFESSIONS BEING EXTORTED FROM THEM, AND THE
MAGISTRATES ARE NOT ALLOWED TO QUESTION PRISONERS, OR TO ASK THEM WHAT
THEY HAVE TO SAY; AND IT IS NOT FOR POLICEMEN TO DO THESE THINGS.  IT
IS ASSUMING THE FUNCTIONS OF THE MAGISTRATE WITHOUT THOSE PRECAUTIONS
WHICH THE MAGISTRATES ARE REQUIRED BY THE LAW TO USE, AND ASSUMING
FUNCTIONS WHICH ARE ENTRUSTED TO THE MAGISTRATES AND TO THEM ONLY.");
REGINA V. REASON, 12 COX C.C. 228, 229 ("IT IS THE DUTY OF THE POLICE
CONSTABLE TO HEAR WHAT THE PRISONER HAS VOLUNTARILY TO SAY, BUT AFTER
THE PRISONER IS TAKEN INTO CUSTODY IT IS NOT THE DUTY OF THE POLICE
CONSTABLE TO ASK QUESTIONS."); REGINA V. CHEVERTON, 2 F.&F. 833, 835;
REGINA V. REGAN, 17 LAW TIMES REP.  (N.S.)  325, 326. 

FN40  THE FIRST FOUR OF THE RULES, DRAWN UP BY THE JUDGES OF THE
KING'S BENCH AT THE REQUEST OF THE HOME SECRETARY, WERE CIRCULATED IN
1912.  THEIR TEXT IS SET FORTH IN REX V. VOISIN, (1918) 1 K.B. 531,
539, N. (3).  A MEMORANDUM APPROVED BY THE JUDGES IN 1918 INCREASED
THEIR NUMBER TO NINE.  SEE 145 LAW TIMES 389 (SEPT. 28, 1918). 
AMBIGUITIES IN THE RULES WERE POINTED OUT BY A ROYAL COMMISSION IN
1929, SEE REPORT OF THE ROYAL COMMISSION ON POLICE POWERS AND PROCEDURE
(CMD.  3297)(1929) 69-74, AND IN RESPONSE TO THE COMMISSION'S
OBSERVATIONS A CLARIFYING CIRCULAR WAS ISSUED BY THE HOME OFFICE IN
1930 WITH THE APPROVAL OF THE JUDGES.  SEE 6 POLICE JOURNAL (1933) 342,
352-356; 1 TAYLOR ON EVIDENCE (12TH ED.  1931) 557-559.  FURTHER HOME
OFFICE CIRCULARS IN 1947 AND 1948 WERE APPROVED BY THE LORD CHIEF
JUSTICE.  FOR THE TEXT OF THE RULES AND CIRCULARS AS PRESENTLY IN
OPERATION, SEE 1 STONE'S JUSTICES' MANUAL (92D ED. 1960) 353-356.  SEE
ALSO DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND (1958), 38-42, 137
141.  THE HOME SECRETARY RECENTLY RESPONDED TO PARLIAMENT THAT HE HAD
BEEN IN TOUCH WITH THE LORD CHIEF JUSTICE, WHO HAD AGREED THAT THE TIME
HAD COME WHEN IT WOULD BE APPROPRIATE FOR THE JUDGES TO CARRY OUT A
REVIEW OF THE SCOPE AND OPERATION OF THE JUDGES' RULES, 636 H.C. DEB.,
HANSARD, NO. 75 (WRITTEN ANSWERS) 145 (MARCH 16, 1961). 

FN41  THE RULES, IN PERTINENT PART, ARE: 

"(1)  WHEN A POLICE OFFICER IS ENDEAVOURING TO DISCOVER THE AUTHOR OF
A CRIME, THERE IS NO OBJECTION TO HIS PUTTING QUESTIONS IN RESPECT
THEREOF TO ANY PERSON OR PERSONS, WHETHER SUSPECTED OR NOT, FROM WHOM
HE THINKS THAT USEFUL INFORMATION CAN BE OBTAINED. 

"(2)  WHENEVER A POLICE OFFICER HAS MADE UP HIS MIND TO CHARGE A
PERSON WITH A CRIME, HE SHOULD FIRST CAUTION SUCH PERSON BEFORE ASKING
ANY QUESTIONS OR ANY FURTHER QUESTIONS, AS THE CASE MAY BE. 

"(3)  PERSONS IN CUSTODY SHOULD NOT BE QUESTIONED WITHOUT THE USUAL
CAUTION BEING FIRST ADMINISTERED. 

"(4)  IF THE PRISONER WISHES TO VOLUNTEER ANY STATEMENT, THE USUAL
CAUTION SHOULD BE ADMINISTERED ...  . 

     *         *         *         *  * 

"(7)  A PRISONER MAKING A VOLUNTARY STATEMENT MUST NOT BE CROSS
EXAMINED, AND NO QUESTIONS SHOULD BE PUT TO HIM ABOUT IT EXCEPT FOR THE
PURPOSE OF REMOVING AMBIGUITY IN WHAT HE HAS ACTUALLY SAID.  FOR
INSTANCE, IF HE HAS MENTIONED AN HOUR WITHOUT SAYING WHETHER IT WAS
MORNING OR EVENING, OR HAS GIVEN A DAY OF THE WEEK AND DAY OF THE MONTH
WHICH DO NOT AGREE, OR HAS NOT MADE IT CLEAR TO WHAT INDIVIDUAL OR WHAT
PLACE HE INTENDED TO REFER IN SOME PART OF HIS STATEMENT, HE MAY BE
QUESTIONED SUFFICIENTLY TO CLEAR UP THE POINT. 

"(8)  WHEN TWO OR MORE PERSONS ARE CHARGED WITH THE SAME OFFENCE AND
STATEMENTS ARE TAKEN SEPARATELY FROM THE PERSONS CHARGED, THE POLICE
SHOULD NOT READ THESE STATEMENTS TO THE OTHER PERSONS CHARGED, BUT EACH
OF SUCH PERSONS SHOULD BE FURNISHED BY THE POLICE WITH A COPY OF SUCH
STATEMENTS AND NOTHING SHOULD BE SAID OR DONE BY THE POLICE TO INVITE A
REPLY.  IF THE PERSON CHARGED DESIRES TO MAKE A STATEMENT IN REPLY, THE
USUAL CAUTION SHOULD BE ADMINISTERED." 

THESE MUST BE READ IN CONNECTION WITH THE HOME OFFICE CIRCULAR OF
1930, WHICH STATES: 

"RULE 3 WAS NEVER INTENDED TO ENCOURAGE OR AUTHORIZE THE QUESTIONING
OR CROSS-EXAMINATION OF A PERSON IN CUSTODY AFTER HE HAS BEEN
CAUTIONED, ON THE SUBJECT OF THE CRIME FOR WHICH HE IS IN CUSTODY, AND
LONG BEFORE THIS RULE WAS FORMULATED, AND SINCE, IT HAS BEEN THE
PRACTICE FOR THE JUDGE NOT TO ALLOW ANY ANSWER TO A QUESTION SO
IMPROPERLY PUT TO BE GIVEN IN EVIDENCE; BUT IN SOME CASES IT MAY BE
PROPER AND NECESSARY TO PUT QUESTIONS TO A PERSON IN CUSTODY AFTER THE
CAUTION HAS BEEN ADMINISTERED.  FOR INSTANCE, A PERSON ARRESTED FOR A
BURGLARY MAY, BEFORE HE IS FORMALLY CHARGED, SAY 'I HAVE HIDDEN OR
THROWN THE PROPERTY AWAY,' AND AFTER CAUTION HE WOULD PROPERLY BE
ASKED, 'WHERE HAVE YOU HIDDEN OR THROWN IT?'; OR A PERSON, BEFORE HE IS
FORMALLY CHARGED AS A HABITUAL CRIMINAL, IS PROPERLY ASKED TO GIVE AN
ACCOUNT OF WHAT HE HAS DONE SINCE HE LAST CAME OUT OF PRISON.  RULE 3
IS INTENDED TO APPLY TO SUCH CASES AND, SO UNDERSTOOD, IS NOT IN
CONFLICT WITH AND DOES NOT QUALIFY RULE 7, WHICH PROHIBITS ANY QUESTION
UPON A VOLUNTARY STATEMENT EXCEPT SUCH AS IS NECESSARY TO CLEAR UP
AMBIGUITY." 

FN42  REGINA V. WATTAM, 36 CRIM. APP. REP. 72, 77; REGINA V.
STRAFFEN, (1952) 2 Q.B.  911, 914 (CRIM. APP.). 

FN43  IBID.; REX V. MAY, 36 CRIM. APP. REP. 91, 93; REX V. VOISIN,
(1918) 1 K.B. 531, 539-540; SEE "QUESTIONING AN ACCUSED PERSON," 92
J.P. 743, 758 (1928); BROWNLIE, POLICE QUESTIONING, CUSTODY AND
CAUTION, (1960) CRIM. L. REV. 298. 

FN44  SEE REX V. DWYER, 23 CRIM. APP. REP. 156; REGINA V. BASS, 37
CRIM. APP. REP. 51. 

FN45  SEE DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND (1958),
PASSIM. 

FN46  NO DOUBT THE JUDGES' RULES ARE SOMETIMES BROKEN, BUT THE
REPORTED BREACHES THEMSELVES SEEM RELATIVELY MILD - COMPARED WITH WHAT
IS COMMON AMERICAN POLICE PRACTICE - SO THAT EVEN THESE APPEAR TO
SUPPORT THE CONCLUSION THAT, IN THE LARGE, THE TENOR OF THE RULES IS
THAT WHICH PREVAILS IN PRACTICAL OPERATION AMONG THE ENGLISH
CONSTABULARY.  SEE THE SEVERAL ARTICLES COMPOSING THE "SPECIAL ISSUE ON
POLICE QUESTIONING," (1960) CRIM. L. REV. 298-356; ELLIOTT, BOOK
REVIEW, 5 J. SOC. PUBLIC TEACHERS OF LAW (N.S.)  230 (1960). 

THE FUROR, BOTH WITHIN AND WITHOUT PARLIAMENT, RAISED BY AN
AFTERNOON'S QUESTIONING OF MISS SAVIDGE, IS ILLUMINATING.  SEE INQUIRY
IN REGARD TO THE INTERROGATION BY THE POLICE OF MISS SAVIDGE, REPORT OF
THE TRIBUNAL APPOINTED UNDER THE TRIBUNALS OF INQUIRY (EVIDENCE) ACT,
1921 (CMD.  3147)(1928); 217 H.C. DEB.  1216-1220, 1303-1339, 1921-1931
(5TH SER.  1928).  SO IS THE COMMENT TO WHICH THE ENGLISH PRACTICE HAS
SOMETIMES GIVEN OCCASION.  SEE, E.G., FORSYTH, THE HISTORY OF LAWYERS
(1875), 282, N. 1:  "NOT LONG AGO, AT A TRIAL AT THE CENTRAL CRIMINAL
COURT, A POLICEMAN WAS ASKED WHETHER THE PRISONER HAD NOT MADE A
STATEMENT.  HE ANSWERED, 'NO:  HE WAS BEGINNING TO DO SO; BUT I KNEW MY
DUTY BETTER, AND I PREVENTED HIM.'" 

FN47  SEE THE 1905 DECISION, REX V. KNIGHT, 21 T.L. REP. 310; AND SEE
REX V. KAY, 11 B.C. 157. 

FN48  COMPARE REX V. GODWIN, (1924) 2 D.L.R. 362 (K.B., N.B.), WITH
IBRAHIM V. REX, (1914) A.C. 599 (P.C.).  AND SEE REX V. PATTISON, 21
CR. APP. REP. 139. 

FN49  THE JUDGES' RULES' REQUIREMENT OF A CAUTION HAS BEEN ADOPTED,
HOWEVER, AND MADE A CONDITION OF ADMISSIBILITY OF INCRIMINATING
STATEMENTS, BY THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. SEC.
831.  THE SAME REQUIREMENT, WITH CERTAIN EXCEPTIONS, PREVAILS BY
STATUTE IN TEXAS.  TEX. CODE CRIM. PROC., ARTS. 726, 727.  COMPARE S.
3325, 85TH CONG., 2D SESS. 

FN50  IN MCNABB, OUR DECISION TURNED ON THE FAILURE OF THE ARRESTING
OFFICERS TO COMPLY WITH PROCEDURES PRESCRIBED BY FEDERAL STATUTES THEN
IN EFFECT REQUIRING PROMPT PRODUCTION OF PERSONS ARRESTED FOR
PRELIMINARY EXAMINATION.  COMPARE ANDERSON V. UNITED STATES, 318 U.S.
350.  THE UPSHAW CASE AND MALLORY V. UNITED STATES, 354 U.S. 449,
CARRIED THE SAME EXCLUSIONARY RULE OVER IN IMPLEMENTATION OF FED. RULES
CRIM. PROC., 5(A).  OF COURSE, OUR DECISION IN UNITED STATES V.
MITCHELL, 322 U.S. 65, MAKES CLEAR THAT CONFESSIONS MADE DURING THE
PERIOD IMMEDIATELY FOLLOWING ARREST AND BEFORE DELAY BECOMES UNLAWFUL
ARE NOT TO BE EXCLUDED UNDER THE RULE. 

FN51  318 U.S., AT 343-344: 

"  ...  THE AWFUL INSTRUMENTS OF THE CRIMINAL LAW CANNOT BE ENTRUSTED
TO A SINGLE FUNCTIONARY.  THE COMPLICATED PROCESS OF CRIMINAL JUSTICE
IS THEREFORE DIVIDED INTO DIFFERENT PARTS, RESPONSIBILITY FOR WHICH IS
SEPARATELY VESTED IN THE VARIOUS PARTICIPANTS UPON WHOM THE CRIMINAL
LAW RELIES FOR ITS VINDICATION.  LEGISLATION  ...  REQUIRING THAT THE
POLICE MUST WITH REASONABLE PROMPTNESS SHOW LEGAL CAUSE FOR DETAINING
ARRESTED PERSONS, CONSTITUTES AN IMPORTANT SAFEGUARD - NOT ONLY IN
ASSURING PROTECTION FOR THE INNOCENT BUT ALSO IN SECURING CONVICTION OF
THE GUILTY BY METHODS THAT COMMEND THEMSELVES TO A PROGRESSIVE AND SELF
CONFIDENT SOCIETY.  FOR THIS PROCEDURAL REQUIREMENT CHECKS RESORT TO
THOSE REPREHENSIBLE PRACTICES KNOWN AS THE 'THIRD DEGREE' WHICH, THOUGH
UNIVERSALLY REJECTED AS INDEFENSIBLE, STILL FIND THEIR WAY INTO USE. 
IT AIMS TO AVOID ALL THE EVIL IMPLICATIONS OF SECRET INTERROGATION OF
PERSONS ACCUSED OF CRIME.  IT REFLECTS NOT A SENTIMENTAL BUT A STURDY
VIEW OF LAW ENFORCEMENT.  IT OUTLAWS EASY BUT SELF-DEFEATING WAYS IN
WHICH BRUTALITY IS SUBSTITUTED FOR BRAINS AS AN INSTRUMENT OF CRIME
DETECTION."  SEE NOTES 26, 27, SUPRA.    FN52  PRIOR TO MCNABB, THE
RULE PREVAILING IN THE FEDERAL COURTS MADE VOLUNTARINESS THE TEST OF
ADMISSIBILITY.  ZIANG SUNG WAN V. UNITED STATES, 266 U.S. 1.  SEE ALSO
BRAM V. UNITED STATES, 168 U.S. 532. 

FN53  SEE CASES CITED IN NOTE 38, SUPRA. ALABAMA, ARIZONA, ARKANSAS,
CALIFORNIA, CONNECTICUT, FLORIDA, GEORGIA, HAWAII, ILLINOIS, INDIANA,
IOWA, KANSAS, LOUISIANA (SEMBLE), MARYLAND, MASSACHUSETTS (SEMBLE),
MISSISSIPPI, MISSOURI, NEVADA, NEW JERSEY, NEW YORK, NORTH CAROLINA
(SEMBLE), NORTH DAKOTA, OHIO, OKLAHOMA, OREGON, PENNSYLVANIA (NO PROMPT
ARRAIGNMENT STATUTE), RHODE ISLAND (SEMBLE), TENNESSEE (NO PROMPT
ARRAIGNMENT STATUTE), TEXAS, UTAH, VERMONT (SEMBLE), VIRGINIA,
WASHINGTON AND WISCONSIN (SEMBLE) HAVE EXPRESSLY REJECTED MCNABB. 
COLORADO APPEARS CLEARLY TO REJECT IT.  MINNESOTA ALSO APPEARS TO
REJECT IT, THE DECISION IN STATE V. SCHABERT, 222 MINN. 261, 24 N.W.2D
846, QUALIFYING WHATEVER SUGGESTION MIGHT HAVE BEEN INFERRED FROM THE
OPINION IN THE EARLIER APPEAL OF THE SAME CASE, 218 MINN. 1, 15 N.W.2D
585, THAT MCNABB WOULD BE FOLLOWED.  THERE IS DICTUM IN KENTUCKY
SUGGESTING THAT PROTRACTED PRE-ARRAIGNMENT DELAY WOULD NOT EO IPSO
CAUSE EXCLUSION OF A CONFESSION.  REED V. COMMONWEALTH, 312 KY. 214,
218, 226 S.W.2D 513, 514-515 (1949).  IDAHO, WHERE STATE V. JOHNSON, 74
IDAHO 269, 261 P.2D 638, LIMITS AND IN PART OVERRULES STATE V.
KOTTHOFF, 67 IDAHO 319, 177 P.2D 474 (A DECISION WHOSE REASONING SEEMS
IN SOME RESPECTS SIMILAR TO THAT OF MCNABB) MUST NOW BE REGARDED AS
UNCOMMITTED.  THE ONLY STATE TO FOLLOW MCNABB IS MICHIGAN.  PEOPLE V.
HAMILTON, 359 MICH. 410, 102 N.W.2D 738. 

FN54  CF. CICENIA V. LAGAY, 357 U.S. 504-509: 

"  ...  ON THE ONE HAND, IT IS INDISPUTABLE THAT THE RIGHT TO COUNSEL
IN CRIMINAL CASES HAS A HIGH PLACE IN OUR SCHEME OF PROCEDURAL
SAFEGUARDS.  ON THE OTHER HAND, IT CAN HARDLY BE DENIED THAT ADOPTION
OF PETITIONER'S POSITION THAT ANY STATE DENIAL OF A DEFENDANT'S REQUEST
TO CONFER WITH COUNSEL DURING POLICE QUESTIONING VIOLATES DUE PROCESS
WOULD CONSTRICT STATE POLICE ACTIVITIES IN A MANNER THAT IN MANY
INSTANCES MIGHT IMPAIR THEIR ABILITY TO SOLVE DIFFICULT CASES.  A
SATISFACTORY FORMULA FOR RECONCILING THESE COMPETING CONCERNS IS NOT TO
BE FOUND IN ANY BROAD PRONOUNCEMENT THAT ONE MUST YIELD TO THE OTHER IN
ALL INSTANCES.  INSTEAD,  ...  THIS COURT, IN JUDGING WHETHER STATE
PROSECUTIONS MEET THE REQUIREMENTS OF DUE PROCESS, HAS SOUGHT TO
ACHIEVE A PROPER ACCOMMODATION BY CONSIDERING A DEFENDANT'S LACK OF
COUNSEL ONE PERTINENT ELEMENT IN DETERMINING FROM ALL THE CIRCUMSTANCES
WHETHER A CONVICTION WAS ATTENDED BY FUNDAMENTAL UNFAIRNESS." 

FN55  THE RECORD IN THIS CASE DOES NOT MAKE CLEAR, AS DID THAT IN
ROGERS V. RICHMOND, 365 U.S. 534, THAT THE LEGAL STANDARD APPLIED BY
THE TRIAL JUDGE IN PASSING UPON THE ADMISSIBILITY OF CULOMBE'S
CONFESSIONS WAS, UNDER THIS COURT'S DECISIONS, AN IMPERMISSIBLE ONE. 
IN VIEW OF THE DISPOSITION WHICH WE MAKE UPON THE FACTS OF THIS CASE,
VIEWED UNDER THE ASSUMPTION THAT A PROPER CRITERION OF JUDGMENT WAS
EMPLOYED BELOW, WE NEED NOT FURTHER PURSUE THE INQUIRY WHETHER THE
TRIAL JUDGE'S STANDARD SATISFIED THE CONSTITUTIONAL REQUIREMENTS
REGARDING COERCION. 

FN56  STATE V. BUTEAU, 136 CONN. 113, 116-118, 68 A.2D 681, 682-683;
STATE V. LORAIN, 141 CONN. 694, 699-700, 109 A.2D 504, 506-507.  AND
SEE STATE V. MCCARTHY, 133 CONN.  171, 177, 49 A.2D 594, 596-597. 

FN57  PORTIONS OF THE FOLLOWING STATEMENT OF FACTS ARE BASED UPON
TESTIMONY INTRODUCED INTO THE RECORD IN THE CASE OF TABORSKY, CULOMBE'S
CO-DEFENDANT, WHO WAS TRIED JOINTLY WITH CULOMBE.  VIRTUALLY ALL OF THE
EVIDENCE CONCERNING CULOMBE'S MENTAL CAPACITY WAS INTRODUCED, NOT AT
THE TIME OF THE TRIAL TO THE COURT OF THE ISSUE OF COERCION RELEVANT TO
THE ADMISSIBILITY OF CULOMBE'S CONFESSIONS, BUT AT A LATER STAGE OF THE
TRIAL, IN CONNECTION WITH CULOMBE'S DEFENSE OF INSANITY.  SINCE ALL OF
THIS EVIDENCE WAS IN THE RECORD AT THE TIME THAT THE SUPREME COURT OF
ERRORS CONSIDERED AND REJECTED CULOMBE'S FEDERAL CLAIM OF COERCION, AND
SINCE THE OPINION OF THAT COURT DOES NOT INDICATE THAT IT CONSIDERED
THE MATERIAL IMPROPERLY BEFORE IT AS A MATTER OF STATE PROCEDURE, WE
NEED NOT NOW DECIDE WHAT EFFECT SUCH A RULING WOULD HAVE ON THE SCOPE
OF OUR REVIEW.  COMPARE BLACKBURN V. ALABAMA, 361 U.S. 199, 209-211. 

FN58  CONN. GEN. STAT., 1955 SUPP., SEC. 195D, NOW CONN. GEN. STAT.,
1958, SEC. 6-49: "  ... MEMBERS OF THE STATE POLICE DEPARTMENT  ...
SHALL ARREST, WITHOUT PREVIOUS COMPLAINT AND WARRANT, ANY PERSON WHO
SUCH OFFICER HAS REASONABLE GROUNDS TO BELIEVE HAS COMMITTED OR IS
COMMITTING A FELONY.  ANY PERSON SO ARRESTED SHALL BE PRESENTED WITH
REASONABLE PROMPTNESS BEFORE PROPER AUTHORITY." 

FN59  "Q.  ALL OF THE QUESTIONING OF CULOMBE, FROM THE TIME THAT HE
WAS TAKEN INTO CUSTODY WAS WITH THE OBJECT IN VIEW OF OBTAINING A
CONFESSION IF A CONFESSION WAS OBTAINABLE, THAT IS TRUE, ISN'T IT?  A.
THAT IS CORRECT."  (CROSS-EXAMINATION OF SERGEANT PAIGE.) 

FN60  "Q.  YOU KEPT AFTER HIM, TO USE VERY CONSERVATIVE WORDS?  A.
YES, SIR.  Q. UNTIL YOU RECEIVED THE ANSWERS THAT YOU WANTED?  THAT'S
RIGHT, ISN'T IT?  A. NO, SIR.  UNTIL WE RECEIVED THE ANSWERS WHICH WE
PROVED WERE CORRECT.  Q. THE ANSWERS THAT YOU WANTED WERE ADMISSIONS OF
GUILT?  YOU WANTED THOSE ANSWERS?  A. NO, SIR, NOT IF HE WERE NOT
GUILTY.  Q. YOU WERE BOUND AND DETERMINED, WEREN'T YOU, LIEUTENANT, TO
GET SUCH ANSWERS?  A. NO, SIR.  NOT IF HE WERE QUILTY.  WE WANTED
ANSWERS THAT WE COULD PROVE WERE CORRECT."  (CROSS-EXAMINATION OF
LIEUTENANT ROME.) 

FN61  "Q.  WERE THEY TOLD OF THEIR RIGHTS, CONSTITUTIONAL RIGHTS?  A.
I DIDN'T TELL THEM.  Q. YOU DIDN'T HEAR ANYONE ELSE TELL IT TO THEM? 
A. NO, SIR, NOT THAT I KNOW OF."  (CROSS-EXAMINATION OF SERGEANT
PAIGE.)  IT IS UNCLEAR FROM THE CONTEXT OF THESE RESPONSES WHETHER THEY
ARE MEANT TO REFER TO THE WHOLE OF CULOMBE'S PERIOD OF DETENTION OR
ONLY TO SATURDAY AFTERNOON. 

FN62  ROME ADMITTED THAT HE MIGHT HAVE TOLD SOMEONE THAT HE WAS
TAKING A CHANCE PRESENTING CULOMBE ON A BREACH OF THE PEACE CHARGE
(THERE WAS A CHANCE, HE SAID, AS TO WHETHER OR NOT THE POLICE COULD GET
A CONVICTION FOR BREACH OF THE PEACE), AND THAT HE HAD THANKED THE
ALTERNATE PROSECUTOR FOR COMING DOWN TO HARTFORD FROM NEW BRITAIN ON
SUNDAY NIGHT AT HIS REQUEST IN CONNECTION WITH THIS MATTER. 

FN63  THE TESTIMONY IS LIEUTENANT ROME'S. 

FN64  "Q.  YOU COULD HAVE PRESENTED HIM ON MONDAY, COULDN'T YOU?  A.
YES, SIR.  Q. AND YOU DIDN'T DO THAT?  A. NO, SIR.  Q. WHY DIDN'T YOU
DO IT?  ...  THE WITNESS:  IT WASN'T IN ACCORDANCE WITH GOOD
INVESTIGATION.  Q. BUT IT WAS IN ACCORDANCE WITH THE STATUTE, WASN'T
IT?  A. YES, SIR.  Q.  WITH REASONABLE PROMPTNESS TO BRING HIM BEFORE A
PROPER AUTHORITY?  A. REASONABLE PROMPTNESS - TUESDAY MORNING, YES  ...
.  Q. YOU DIDN'T BRING HIM BEFORE THE COURT ON MONDAY?  A. NO, SIR. 
Q.  AND WITH REASONABLE PROMPTNESS, YOU COULD HAVE, COULDN'T YOU?  A.
YES, SIR.  Q. BUT YOU WANTED TO HOLD HIM AND DO SOME MORE GRILLING,
DIDN'T YOU?  MR. BILL:  OBJECTION TO THE GRILLING.  THE COURT: I WILL
SUSTAIN IT.  Q. YOU WANTED TO INTERROGATE HIM SOME MORE, DIDN'T YOU? 
A. YES, MR. BURKE.  Q.  AND THAT IS WHY YOU DIDN'T BRING HIM BEFORE THE
PROPER AUTHORITY - YOU WANTED SOME MORE TIME?  A.  YES, MR. BURKE." 
(CROSS-EXAMINATION OF LIEUTENANT ROME.) 

FN65  THE TESTIMONY IS LIEUTENANT ROME'S. 

FN66  THE SUPERIOR COURT RULED THAT THIS BORROWING WAS ILLEGAL UNDER
CONNECTICUT LAW; THE SUPREME COURT OF ERRORS FOUND IT UNNECESSARY TO
PASS ON THE POINT. 

FN67  CULOMBE REQUESTED THAT MR. BILL, THE STATE'S ATTORNEY, BE TOLD
WHAT HE WAS DOING, THAT HE WAS COOPERATING.  HE SAID THAT HE WANTED MR.
BILL TO SEE THE STATEMENTS THAT HE MADE.  THE OFFICERS SEEM TO HAVE
TOLD CULOMBE THAT MR. BILL WOULD BE NOTIFIED OF HIS COOPERATION BUT, IN
FACT, MR. BILL WAS NEVER SO NOTIFIED. 

FN68  CULOMBE TESTIFIED THAT HIS FIVE-YEAR-OLD DAUGHTER, WHO WAS
PRESENT IN THE ROOM, APPEARED SICK TO HIM AT THAT TIME.  THE OFFICERS
TESTIFIED THAT THEY DID NOT NOTICE ANY ILLNESS IN THE CHILD AND THAT
CULOMBE HAD EXPRESSED NO APPREHENSION CONCERNING HER HEALTH, BUT IT IS
UNDISPUTED THAT THE LITTLE GIRL HAD TO BE TAKEN TO A HOSPITAL THAT
NIGHT WITH MUMPS. 

FN69  BECAUSE THE WEDNESDAY-MIDNIGHT CONFESSION ALSO CONTAINED
REFERENCES TO ANOTHER CRIMINAL OFFENSE, IT WAS NOT PHYSICALLY OFFERED
IN EVIDENCE AT THE TRIAL.  COUNSEL FOR THE STATE AND FOR THE DEFENSE
STIPULATED THAT ANOTHER DOCUMENT, A SUBSTANTIALLY VERBATIM COPY OF THE
KURP'S PORTION OF THE CONFESSION, MIGHT BE SUBSTITUTED FOR IT.  THIS
WAS THE SO-CALLED MONDAY CONFESSION.  IT WAS A PAPER PREPARED BY THE
POLICE FROM THE WEDNESDAY-MIDNIGHT STATEMENT WHICH WAS READ TO, AND
SIGNED BY, CULOMBE THE FOLLOWING MONDAY.  NOTWITHSTANDING THE
STIPULATION, THE PROSECUTION LAID A FOUNDATION FOR THE INTRODUCTION AS
AN EXHIBIT OF THE MONDAY CONFESSION BY OFFERING TESTIMONY BEFORE THE
JURY, FIRST, THAT CULOMBE HAD MADE A STATEMENT WEDNESDAY NIGHT; SECOND,
THAT IT HAD BEEN COMMITTED TO WRITING; AND THIRD, THAT THIS WRITING WAS
SUBSTANTIALLY IDENTICAL TO THE TYPED PAPER WHICH CULOMBE SIGNED ON
MONDAY (WITNESSES ON THE STAND EXAMINED AND COMPARED THE DOCUMENTS). 
THE MONDAY CONFESSION WAS THEN SUBMITTED TO THE JURY.  UNDER THESE
CIRCUMSTANCES, THE EFFECTIVE USE OF THE WEDNESDAY-MIDNIGHT STATEMENT
WAS MUCH THE SAME AS IF IT HAD GONE PHYSICALLY TO THE JURY, AND FOR
PURPOSES OF THE CONSTITUTIONAL ISSUE PRESENTED HERE WE MAY TREAT THE
WEDNESDAY-MIDNIGHT CONFESSION AS PUT IN EVIDENCE.  SEE MALINSKI V. NEW
YORK, 324 U.S. 401. 

FN70  AS MEASURED ON THE FULL SCALE WECHSLER-BELLEVUE TEST.  THE
NORMAL INTELLIGENCE QUOTIENT ON THIS SCALE IS NINETY TO ONE HUNDRED AND
TEN. 

FN71  CULOMBE CAN READ AND WRITE ONLY HIS NAME. 

FN72  AGAIN, THIS IS THE MOST FAVORABLE DIAGNOSIS OF CULOMBE'S
CAPACITY IN THIS REGARD.  THE REPORT OF A CLINICAL PSYCHOLOGIST
APPOINTED BY THE COURT TO EXAMINE CULOMBE BOTH FOR THE STATE AND FOR
THE DEFENSE STATES:  "IN ADDITION TO BEING SADDLED WITH DEFICIENT
MENTAL EQUIPMENT WITH WHICH HE MUST TRY TO COPE WITH LIFE'S PROBLEMS,
MR. C. IS ALSO POSSESSED OF THAT CHARACTER DEFECT SO FREQUENTLY FOUND
IN INDIVIDUALS OF LOW INTELLECTUAL CALIBRE: HE IS ENORMOUSLY
SUGGESTIBLE.  THUS, LACKING IN THE CAPACITY FOR SUFFICIENT CRITICAL
JUDGMENT, HIS MANNER OF THINKING, HIS PATTERN OF LIVING AND HIS WAY OF
BEHAVING CAN ALL EASILY BE INFLUENCED BY THOSE PERSONS CLOSEST TO HIM
...  ." 

FN73  TIMELY QUESTION WAS RAISED AT TRIAL CONCERNING THE
VOLUNTARINESS OF EACH OF CULOMBE'S WEDNESDAY CONFESSIONS, AND BOTH WERE
FOUND VOLUNTARY BY THE CONNECTICUT COURT.  THE PETITION FOR CERTIORARI
IN THIS COURT ADVERTS AMONG THE QUESTIONS PRESENTED ONLY TO THE
WRITTEN, WEDNESDAY-MIDNIGHT CONFESSION.  HOWEVER, IN VIEW OF THE
INTIMATE CONNECTION BETWEEN THE AFTERNOON AND MIDNIGHT CONFESSIONS, WE
REGARD THE PETITION AS FAIRLY COMPRISING A CLAIM THAT THE ORAL
CONFESSION, AS WELL, IS UNCONSTITUTIONALLY TAINTED BY COERCION. 

FN74  BROWN V. MISSISSIPPI, 297 U.S. 278; CF. WARD V. TEXAS, 316 U.S.
547.  AND SEE PENNSYLVANIA EX REL. HERMAN V. CLAUDY, 350 U.S. 116. 

FN75  CF. MALINSKI V. NEW YORK, 324 U.S. 401.  AND SEE LEE V.
MISSISSIPPI, 332 U.S. 742. 

FN76  WHITE V. TEXAS, 310 U.S. 530; VERNON V. ALABAMA, 313 U.S. 547. 

FN77  WARD V. TEXAS, 316 U.S. 547. 

FN78  MALINSKI V. NEW YORK, 324 U.S. 401; LOMAX V. TEXAS, 313 U.S.
544. 

FN79  CHAMBERS V. FLORIDA, 309 U.S. 227; LEYRA V. DENNO, 347 U.S.
556. 

FN80  PAYNE V. ARKANSAS, 356 U.S. 560. 

FN81  CHAMBERS V. FLORIDA, 309 U.S. 227; PAYNE V. ARKANSAS, 356 U.S.
560. 

FN82  CF. THOMAS V. ARIZONA, 356 U.S. 390. 

FN83  ASHCRAFT V. TENNESSEE, 322 U.S. 143 (RELAY QUESTIONING FOR MORE
THAN THIRTY-SIX HOURS WITH ONE FIVE-MINUTE PAUSE); WATTS V. INDIANA,
338 U.S. 49 (RELAY QUESTIONING FROM 11:30 P.M. TO 2:30 OR 3 A.M. ON THE
FIRST DAY OF DETENTION AND FROM 5:30 P.M. TO 3 A.M.  ON FOUR OF THE
FIVE SUCCEEDING DAYS); HARRIS V. SOUTH CAROLINA, 338 U.S. 68 (RELAY
QUESTIONING IN A HOT CUBICLE THROUGHOUT ONE EVENING AND DURING ELEVEN
AND A HALF HOURS, WITH A ONE-HOUR RESPITE, THE NEXT DAY; THEN, ON THE
DAY FOLLOWING, MORE THAN A HALF-DOZEN HOURS OF QUESTIONING BEFORE THE
CONFESSION WAS MADE); LEYRA V. DENNO, 347 U.S. 556 (QUESTIONING
THROUGHOUT AFTERNOON AND EVENING ON THE FIRST DAY; 10 A.M. TO MIDNIGHT
ON THE SECOND; THEN FROM 9 A.M. ON THE THIRD UNTIL 8:30 A.M. ON THE
MORNING OF THE FOURTH, WITH THE QUESTIONING LATER RESUMING, AFTER A
BRIEF RECESS, UNTIL LEYRA CONFESSED).  CF.  CHAMBERS V. FLORIDA, 309
U.S. 227.  BUT SEE LISENBA V. CALIFORNIA.  314 U.S. 219. 

FN84  SEE ALSO SPANO V. NEW YORK, 360 U.S. 315. 

FN85  THE DEFENDANT STEIN, LIKE COOPER, WAS "AN EXPERIENCED CRIMINAL
...  .  THESE MEN WERE NOT YOUNG, SOFT, IGNORANT OR TIMID."  346 U.S.,
AT 185.  ALTHOUGH CULOMBE, TOO, HAS HAD CONSIDERABLE CRIMINAL
EXPERIENCE, ITS VALUE TO HIM, AS A SCHOOL FOR TOUGHENING HIS
RESISTANCE, MUST BE DULY DISCOUNTED IN LIGHT OF HIS SUBNORMAL MENTAL
CAPACITIES.  THE TESTIMONY OF A PSYCHIATRIC EXPERT FOR THE PROSECUTION
IS THAT "AS A MENTAL DEFECTIVE HE IS SUGGESTIBLE.  I DON'T THINK THAT
HE IS A FEARFUL MAN.  I THINK THAT HE CAN BE INTIMIDATED, AND TO USE
HIS OWN EXPRESSION 'I DON'T HAVE THE MOXIE THAT SOMEONE ELSE HAS.'  ...
.  HE IS SUGGESTIBLE AND HE CAN BE INTIMIDATED  ...  .  I WOULD SAY
THIS - WITH BENEVOLENT INFLUENCES, HE GETS ALONG, AS I SAID HE DID IN
THE LAST THREE AND A HALF YEARS.  WITH SUFFICIENTLY INTIMIDATING
MALIGNANT INFLUENCES, HE DOESN'T."    FN86  COMPARE THOMAS V. ARIZONA,
356 U.S. 390 (CONFESSION BEFORE JUSTICE OF THE PEACE AT PRELIMINARY
HEARING ON MORNING FOLLOWING AFTERNOON OF DEFENDANT'S ARREST; DEFENDANT
WARNED OF HIS RIGHTS TO COUNSEL AND TO PLEAD NOT GUILTY); ASHDOWN V.
UTAH, 357 U.S. 426 (DEFENDANT CAUTIONED THAT SHE CAN REFUSE TO ANSWER
AND CAN CONSULT WITH COUNSEL); BROWN V. ALLEN, 344 U.S. 443 (DEFENDANT
REPEATEDLY WARNED THAT HE CAN REMAIN SILENT AND HAVE ASSISTANCE OF
COUNSEL; WHENEVER DEFENDANT TOLD POLICE THAT HE WANTED TO STOP THE
CONVERSATION HIS REQUEST WAS RESPECTED AND HE WAS RETURNED TO JAIL). 

FN87  COMPARE BROWN V. ALLEN, 344 U.S. 443 (DEFENDANT SAW COUNSEL AND
AT LEAST TWO FRIENDS DURING DETENTION, ONE OF WHOM WAS LOCATED BY
POLICE AT HIS REQUEST, IT IS TRUE THAT ONE OF THESE FRIENDS APPEARS TO
HAVE BEEN COOPERATING WITH THE POLICE IN CERTAIN REGARDS, BUT THERE IS
NO INDICATION THAT SHE ATTEMPTED TO PERSUADE THE PRISONER TO CONFESS);
LYONS V. OKLAHOMA, 322 U.S. 596 (DEFENDANT'S WIFE AND FAMILY VISITED
HIM IN JAIL). 

FN88  IN GALLEGOS V. NEBRASKA, 342 U.S. 55, THE DEFENDANT WAS
ARRESTED IN TEXAS BY TEXAS AUTHORITIES AND, WHEN QUESTIONED, GAVE A
FALSE NAME.  HE WAS HELD IN CUSTODY AND AGAIN QUESTIONED - AFTER
INTERVALS FIRST OF TWENTY-ONE, THEN OF FORTY-EIGHT HOURS - FOR THE
PURPOSE OF ESTABLISHING HIS IDENTITY.  ON THE SECOND OCCASION, HE GAVE
HIS NAME AND ADMITTED THAT HE HAD BEEN IN NEBRASKA.  ON THE FOLLOWING
DAY, HE CONFESSED TO A CRIME COMMITTED IN THAT STATE.  HE WAS REMOVED
TO NEBRASKA AND DURING HIS FIRST QUESTIONING BY NEBRASKA OFFICERS, A
WEEK AFTER HIS TEXAS CONFESSION, HE AGAIN CONFESSED.  NO CLAIM OF
COERCION WAS PRESSED IN THIS COURT IN GALLEGOS, COUNSEL FOR THE
PETITIONER RELYING ON THE FACT OF ILLEGALLY PROLONGED DETENTION WITHOUT
PRELIMINARY EXAMINATION AND BEFORE APPOINTMENT OF COUNSEL.  IN LYONS V.
OKLAHOMA, 322 U.S. 596, THE DEFENDANT WAS QUESTIONED FOR TWO HOURS ON
THE DAY OF HIS ARREST, THEN REMAINED IN JAIL (WHERE HIS FAMILY VISITED
HIM) FOR ELEVEN DAYS.  AT THE END OF THIS PERIOD HE WAS SUBJECTED TO
ONE PROLONGED, NIGHT-LONG INTERROGATION SESSION UNDER INTIMIDATING
CIRCUMSTANCES AND HE CONFESSED.  THIS CONFESSION WAS NOT OFFERED IN
EVIDENCE, HAVING CONCEDEDLY BEEN COERCED.  HE CONFESSED AGAIN THE SAME
EVENING, AFTER HE HAD BEEN TAKEN TO THE STATE PENITENTIARY AND
DELIVERED INTO CUSTODY OF THE WARDEN; AND THE QUESTION RAISED WAS
WHETHER THE COERCIVE INFLUENCES ATTENDING THE INITIAL CONFESSION ALSO
INFECTED THE LATER ONE.  THE WHOLE PATTERN OF FACTORS IN LYONS WAS
DIFFERENT FROM THAT OF THE PRESENT CASE AND INVOLVED WHOLLY DIFFERENT
CONSIDERATIONS.  CF. UNITED STATES V. BAYER, 331 U.S. 532.  AND SEE
WILSON V. LOUISIANA, 341 U.S. 901 (DEFENDANT HAD BEEN INTERROGATED
DURING FOUR OR FIVE HOURS FOLLOWING HIS ARREST AND CONFESSED; TWO DAYS
LATER HE WAS ASKED TO REPEAT HIS STORY AND HE AGAIN CONFESSED, THERE
BEING NO INDICATION IN THE RECORD THAT HE WAS QUESTIONED ON THE SECOND
OCCASION). 

FN89  IN BROWN V. ALLEN, 344 U.S. 443, THE DEFENDANT HAD BEEN
ARRESTED ON MONDAY, TWICE QUESTIONED FOR AN HOUR OR TWO ON THAT DAY,
AND QUESTIONED DAILY FOR A COUPLE OF HOURS ON TUESDAY AND WEDNESDAY. 
ON THURSDAY HE WAS CONFRONTED BY WITNESSES AND, AFTER THEY HAD RELATED
CERTAIN INFORMATION, HE WAS ASKED WHETHER HE HAD ANY QUESTIONS TO ASK
THEM.  ON EACH OCCASION HE WAS WARNED THAT HE NEED MAKE NO STATEMENT
AND THAT HE HAD A RIGHT TO THE ASSISTANCE OF COUNSEL BEFORE HE MADE ANY
STATEMENT.  HE WAS NOT AGAIN INTERVIEWED UNTIL THE FOLLOWING SATURDAY,
WHEN THE CHARGES AGAINST HIM WERE READ TO HIM, HE WAS ASKED IF HE
WANTED TO MAKE A STATEMENT, AND - WITHOUT QUESTIONING - HE CONFESSED. 
SEE ALSO NOTE 87, SUPRA. 

FN90  CULOMBE'S APPEARANCE BEFORE THE NEW BRITAIN POLICE COURT,
WHETHER OR NOT IT LEGITIMATED HIS DETENTION UNDER CONNECTICUT LAW,
HARDLY AFFORDED HIM THE PROTECTION OF A PRELIMINARY EXAMINATION WITH
RESPECT TO THE FELONIES OF WHICH HE WAS SUSPECTED.  SEE P. 632, INFRA. 

FN91  WITHOUT ENTERING INTO FURTHER DISCUSSION OF THIS ADMITTEDLY NOT
UNAMBIGUOUS DECISION, ONE MAY DRAW FROM IT, AT THE LEAST, A REFFIRMANCE
OF WHAT WAS DECIDED IN TURNER. 

FN92  CONN. GEN. STAT., 1949, SEC. 8796, NOW CONN. GEN. STAT., 1958,
SEC. 54-80. 

FN93 WE HAVE DULY TAKEN INTO ACCOUNT, IN THIS REGARD, THE FINDING BY
THE CONNECTICUT SUPERIOR COURT:  "NOTHING WAS SAID OR DONE BY THE
POLICE TO MRS. CULOMBE OR THE CHILDREN TO CAUSE ANXIETY ON THE PART OF
CULOMBE OR TO REDUCE HIS RESISTANCE OR WILL POWER, OR TO INFLUENCE HIM
TO CONFESS."  WHATEVER WAS DONE TO MRS. CULOMBE, IT IS WHAT WAS DONE
WITH HER, AND WITH HER DAUGHTER, THAT IS SIGNIFICANT.  TO THE EXTENT
THAT THIS FINDING CAN BE READ - AS WE THINK IT CANNOT - TO MEAN THAT NO
USE WAS MADE OF CULOMBE'S FAMILY WHICH IN FACT REDUCED HIS RESISTANCE,
SUCH A FINDING WOULD LACK SUPPORT IN EVIDENCE.  THOMPSON V. LOUISVILLE,
362 U.S. 199.  IT IS THE UNCONTROVERTED TESTIMONY OF BOTH ROME AND
PAIGE THAT CULOMBE WAS UPSET BY HIS WIFE'S VISIT OF TUESDAY NIGHT, AND
PAIGE TESTIFIED THAT CULOMBE THEREAFTER CHOKED UP OR SOBBED. 

FN94  WE DO NOT IGNORE THAT CULOMBE NEVER REPEATED HIS REQUEST FOR A
LAWYER AFTER SATURDAY NIGHT.  IN VIEW OF ITS FRUSTRATION AT THAT TIME,
THIS IS NOT SURPRISING.  LIEUTENANT ROME TOLD HIM ON TUESDAY MORNING
THAT HE WOULD HAVE A CHANCE TO CONSULT COUNSEL AT COURT - A PROMISE
THAT WAS NOT MADE GOOD. 

IT IS ALSO TRUE THAT CULOMBE SEVERAL TIMES SAW HIS WIFE, AT HOME AND
AT STATE POLICE HEADQUARTERS, AND THAT HE DID NOT REQUEST THAT SHE
SECURE AN ATTORNEY FOR HIM.  UNDER THE STRESSING CIRCUMSTANCES OF THESE
MEETINGS, SUCH RESERVE OF THOUGHT CAN HARDLY HAVE BEEN EXPECTED. 
CULOMBE'S OWN EXPLANATION FOR HIS FAILURE TO MAKE THIS REQUEST OF HIS
WIFE IS THAT WHICH THE CIRCUMSTANCES, EVEN WITHOUT HIS TESTIMONY,
COMPEL:  "I DIDN'T ASK HER.  I DIDN'T EVEN THINK OF IT, TO BEGIN WITH
...  .  HOW COULD YOU, WITH ALL THIS PRESSURE?  YOU DON'T EVEN KNOW
WHAT DAY IT IS HALF THE TIME." 

FN95  IN REX V. DICK, (1947) 2 D.L.R. 213, CERTAIN STATEMENTS MADE BY
A PRISONER WHO HAD BEEN CHARGED WITH VAGRANCY, CAUTIONED CONCERNING
THAT OFFENSE (OR NOT AT ALL), AND THEN QUESTIONED WITH THE PURPOSE OF
ELICITING INFORMATION ABOUT THE MURDER OF WHICH SHE WAS SUSPECTED, WERE
HELD INADMISSIBLE AS INVOLUNTARY.  ROBERTSON, C.J.O., SAID, AT 225: 

"  ...  IT SEEMS TO ME TO BE AN ABUSE OF THE PROCESS OF THE CRIMINAL
LAW TO USE THE PURELY FORMAL CHARGE OF A TRIFLING OFFENCE UPON WHICH
THERE IS NO REAL INTENTION TO PROCEED, AS A COVER FOR PUTTING THE
PERSON CHARGED UNDER ARREST, AND OBTAINING FROM THAT PERSON
INCRIMINATING STATEMENTS, NOT IN RELATION TO THE CHARGE LAID AND MADE
THE SUBJECT OF A CAUTION, BUT IN RELATION TO A MORE SERIOUS AND
ALTOGETHER DIFFERENT OFFENCE:  ...  IT IS TRIFLING WITH THE LONG
ESTABLISHED MAXIM NEMO TENETUR SEIPSUM ACCUSARE, AND HAS MORE THAN THE
MERE APPEARANCE - BUT, IN THE INTENDED RESULT IT HAS AT TIMES THE
EFFECT - OF A TRIAL BY THE POLICE IN CAMERA BEFORE EVEN THE CHARGE HAS
BEEN LAID." 

FN96  ON THE BASIS OF THE FOLLOWING TESTIMONY BY SERGEANT PAIGE ON
CROSS-EXAMINATION, IT WOULD BE DIFFICULT TO REGARD WEDNESDAY'S
QUESTIONING OF CULOMBE AS ANYTHING OTHER THAN A PILE-DRIVING EFFORT TO
FORCE HIS CONVICTION FROM HIS OWN LIPS: 

"Q.  HOW LONG DID HE CONTINUE TO SAY THAT?  A. WELL, I STARTED
TALKING TO HIM AT ONE-THIRTY AND IT WAS JUST A SHORT WHILE AFTERWARDS
THAT I TOOK THIS PIECE OF PAPER WITH ALL THE DIFFERENT CRIMES ON IT AND
ASKED HIM THESE QUESTIONS.  MURPHY CAME IN AND REPEATED THE SAME THING
AND WE WERE OUT OF THE BARRACKS BY HALF PAST THREE THAT AFTERNOON. 

"Q.  WELL, HOW LONG DID HE KEEP THAT UP - SAYING HE DIDN'T WANT TO
TALK ABOUT IT? A. EVERYTIME WE WOULD ASK HIM A QUESTION AND ASK HIM IF
HE WAS THERE AND HE WOULD SAY HE DIDN'T WANT TO TALK ABOUT IT. 

"Q.  HOW LONG A PERIOD OF TIME DID THAT TAKE TO GIVE THAT ANSWER?  A.
WHAT ANSWER? 

"Q.  'I DON'T WANT TO TALK ABOUT IT'?  A. THREE QUARTERS OF AN HOUR. 

"Q.  AND HE HAD BEEN DOING THAT IN ADDITION TO DENYING IT FOR DAYS UP
TO THAT POINT, HADN'T HE? A.  WELL, THAT WASN'T A DENIAL, MR.
MCDONOUGH. 

"Q.  WELL, HE SAID HE HAD NOTHING TO DO WITH THEM, DIDN'T HE?  A. NO,
HE SAID RATHER THAN LIE - HE SAID 'I DON'T WANT TO TALK ABOUT IT,'
WHICH WAS TELLING ME THAT HE WAS INVOLVED IN THE CRIMES. 

"Q.  THAT WAS YOUR CONCLUSION?  A. THAT WAS THE CONCLUSION BETWEEN
US. 

"Q.  HE NEVER SAID ANY SUCH THING THAT YOU JUST SAID - THAT IS A
CONCLUSION OF YOURS - THAT IS WHAT YOU ARE ASSUMING?  A. THAT IS WHAT I
KNEW. 

"Q.  THAT IS WHAT YOU KNEW HE WAS INVOLVED IN - HE DIDN'T TELL YOU HE
WAS INVOLVED IN ANY OF THOSE CRIMES?  A. BUT I KNEW THAT WAS THE ANSWER
WITHOUT HIS ACTUALLY SAYING YES. 

"Q.  ISN'T THAT AN ASSUMPTION YOU DREW?  A. THAT WAS THE KNOWLEDGE I
RECEIVED FROM HIS ACTS. 

"Q.  THAT IS WHAT YOU DREW?  A. YES." 

FN97  WE ACCORD SMALL WEIGHT, ALSO, TO THE FACT THAT ON THURSDAY,
WHEN CULOMBE WAS PRESENTED IN THE SUPERIOR COURT FOR MURDER, HE TOLD
THE PRESIDING JUDGE THAT HE WANTED TO COOPERATE WITH THE POLICE AND WAS
WILLING TO BE RELEASED INTO THEIR CUSTODY.  OF COURSE, IF CULOMBE'S
SOLE CLAIM OF COERCION WERE THAT HE HAD BEEN PHYSICALLY ABUSED AT STATE
POLICE HEADQUARTERS, SUCH BEHAVIOR ON HIS PART MIGHT GROUND A
REASONABLE INFERENCE THAT ASSERTIONS OF BRUTALITY WERE NOT CREDIBLE. 
BUT THE PRESSURES OF WHICH HE COMPLAINS, AND IN WHICH WE SUSTAIN HIM,
ARE OF A SUBTLER SORT, AND NOTHING IN HIS WILLINGNESS TO "COOPERATE" -
ON THE DAY AFTER HE SIGNED A SERIES OF CONFESSIONS - IS INCONSISTENT
WITH THE CONCLUSION THAT THOSE PRESSURES BROKE HIS RESISTANCE. 

MR. CHIEF JUSTICE WARREN, CONCURRING. 

IT HAS NOT BEEN THE CUSTOM OF THE COURT, IN DECIDING THE CASES WHICH
COME BEFORE IT, TO WRITE LENGTHY AND ABSTRACT DISSERTATIONS UPON
QUESTIONS WHICH ARE NEITHER PRESENTED BY THE RECORD NOR NECESSARY TO A
PROPER DISPOSITION OF THE ISSUES RAISED.  THE OPINION WHICH ANNOUNCES
THE JUDGMENT OF THE COURT IN THE INSTANT CASE HAS DEPARTED FROM THIS
CUSTOM AND IS IN THE NATURE OF AN ADVISORY OPINION, FOR IT ATTEMPTS TO
RESOLVE WITH FINALITY MANY DIFFICULT PROBLEMS WHICH ARE AT BEST ONLY
TANGENTIALLY INVOLVED HERE.  THE OPINION WAS UNQUESTIONABLY WRITTEN
WITH THE INTENTION OF CLARIFYING THESE PROBLEMS AND OF ESTABLISHING A
SET OF PRINCIPLES WHICH COULD BE EASILY APPLIED IN ANY COERCED
CONFESSION SITUATION.  HOWEVER, IT IS DOUBTFUL THAT SUCH WILL BE THE
RESULT, FOR WHILE THREE MEMBERS OF THE COURT AGREE TO THE GENERAL
PRINCIPLES ENUNCIATED BY THE OPINION, THEY CONSTRUE THOSE PRINCIPLES AS
REQUIRING A RESULT IN THIS CASE EXACTLY THE OPPOSITE FROM THAT REACHED
BY THE AUTHOR OF THE OPINION.  THIS BEING TRUE, IT CANNOT BE ASSUMED
THAT THE LOWER COURTS AND LAW ENFORCEMENT AGENCIES WILL RECEIVE BETTER
GUIDANCE FROM THE TREATISE FOR WHICH THIS CASE SEEMS TO HAVE PROVIDED A
VEHICLE.  ON AN ABSTRACT LEVEL, I FIND MYSELF IN AGREEMENT WITH SOME
PORTIONS OF THE OPINION AND IN DISAGREEMENT WITH OTHER PORTIONS. 
HOWEVER, I WOULD PREFER NOT TO WRITE ON MANY OF THE DIFFICULT QUESTIONS
WHICH THE OPINION DISCUSSES UNTIL THE FACTS OF A PARTICULAR CASE MAKE
SUCH WRITING NECESSARY.  IN MY VIEW, THE REASONS WHICH HAVE COMPELLED
THE COURT TO DEVELOP THE LAW ON A CASE-BY-CASE APPROACH, TO DELARE
LEGAL PRINCIPLES ONLY IN THE CONTEXT OF SPECIFIC FACTUAL SITUATIONS,
AND TO AVOID EXPOUNDING MORE THAN IS NECESSARY FOR THE DECISION OF A
GIVEN CASE ARE PERSUASIVE.  SEE ALABAMA STATE FEDERATION OF LABOR V.
MCADORY, 325 U.S. 450, 461-462, AND CASES CITED; POE V. ULLMAN, ANTE,
P. 497.  I SEE NO REASON FOR MAKING AN EXCEPTION IN THIS CASE, AND I AM
THEREFORE UNABLE TO JOIN THE OPINION WHICH ANNOUNCES THE JUDGMENT OF
THE COURT.  ACCORDINGLY, I JOIN THE SEPARATE CONCURRING OPINION OF MR.
JUSTICE BRENNAN. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AGREES, CONCURRING. 

I FIND THIS CASE A SIMPLE ONE.  AS MY BROTHER BRENNAN STATES, IT IS
CONTROLLED BY MANY OF OUR DECISIONS CONCERNING CONFESSIONS UNLAWFULLY
OBTAINED.  IT IS ALSO CONTROLLED BY THE PRINCIPLE SOME OF US HAVE URGED
UPON THE COURT IN SEVERAL PRIOR CASES, INCLUDING CROOKER V. CALIFORNIA,
357 U.S. 433, 441 (DISSENTING OPINION); ASHDOWN V. UTAH, 357 U.S. 426,
431 (DISSENTING OPINION); CICENIA V. LAGAY, 357 U.S. 504, 511
(DISSENTING OPINION); SPANO V. NEW YORK, 360 U.S. 315, 324 (CONCURRING
OPINION).  (FN1)  THAT PRINCIPLE IS THAT ANY ACCUSED - WHETHER RICH OR
POOR - HAS THE RIGHT TO CONSULT A LAWYER BEFORE TALKING WITH THE
POLICE; AND IF HE MAKES THE REQUEST FOR A LAWYER AND IT IS REFUSED, HE
IS DENIED "THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE" GUARANTEED BY THE
SIXTH AND FOURTEENTH AMENDMENTS. 

THE POLICE FIRST DESCENDED ON PETITIONER ON A SATURDAY AFTERNOON.  BY
TEN THAT NIGHT - AT THE LATEST - HE WAS IN "CUSTODY."  HE ASKED TO SEE
AN ATTORNEY.  THAT REQUEST WAS CALLOUSLY TURNED ASIDE.  THE TESTIMONY
OF OFFICER ROME EXPOSES THE CRITICAL ISSUE IN THE CASE: 

"Q.  UP UNTIL MONDAY NIGHT CULOMBE HADN'T SEEN A LAWYER, HAD HE?  A.
NO, SIR. 

"Q.  HE HAD ASKED TO SEE A LAWYER, HADN'T HE? 

"A.  YES, SIR. 

"Q.  DIDN'T YOU TELL HIM THAT HE COULD SEE A LAWYER WHEN YOU GOT GOOD
AND READY TO LET HIM SEE HIM? 

"A.  NO, SIR. 

"Q.  WELL, WHEN HE ASKED TO SEE A LAWYER DID HE SEE A LAWYER?  A. NO,
SIR. 

"Q.  DID YOU ALLOW HIM TO GO TO A TELEPHONE TO CALL A LAWYER?  A.
THERE WAS A TELEPHONE RIGHT THERE.  HE DIDN'T HAVE THE NAME OF AN
ATTORNEY TO CALL. 

"Q.  WELL, THERE ARE A LARGE NUMBER OF HARTFORD LAWYERS' NAMES IN THE
HARTFORD TELEPHONE DIRECTORY. 

"A.  YES, SIR. 

"Q.  DID YOU OFFER HIM THE USE OF THE DIRECTORY TO FIND OUT THE NAME
OF A LAWYER TO CALL? 

"A.  WE WERE TOLD THAT HE COULDN'T READ. 

"Q.  OH, YOU WERE TOLD THAT HE COULDN'T READ? 

"A.  YES, SIR.    "Q.  WHO TOLD YOU THAT?  A. HE DID. 

"Q.  WELL, THEN, BEFORE I ASKED THE QUESTION HERE IN THE COURTROOM,
YOU HAD INFORMATION THAT HE COULDN'T READ? 

"A.  AFTER I TALKED WITH HIM. 

"Q.  SO, THEREFORE, A TELEPHONE DIRECTORY WOULD HAVE BEEN OF NO USE
TO HIM?  THAT IS WHAT YOU MEAN BY THE ANSWER?  A. IF WHAT HE TOLD ME
WAS THE TRUTH, YES, SIR. 

"Q.  DID YOU TELL HIM THAT HE COULD HAVE GOTTEN IN TOUCH WITH MR.
COSGROVE, THE PUBLIC DEFENDER FOR THIS COURT? 

"A.  I MAKE IT MY BUSINESS NEVER TO MENTION ANY ATTORNEYS.  IT IS UP
TO THEM TO MENTION THEIR ATTORNEY. 

"Q.  THIS MAN WAS IN THE HANDS OF THE POLICE ON A SERIOUS
INVESTIGATION.  HE SAID THAT HE WANTED A LAWYER AND YOU DID NOTHING TO
HELP HIM?  A. I TOLD HIM HE COULD HAVE A LAWYER IF HE TOLD ME WHO HE
WANTED ME TO CALL. 

"Q.  DID YOU TELL HIM THAT?  A. YES, SIR. 

"Q.  DIDN'T CULOMBE TELL YOU ON MONDAY NIGHT, 'IF THAT IS THE WAY YOU
OPERATE UP HERE I WANT TO GET IN TOUCH WITH A LAWYER,' AND YOU REPLIED,
'WE WILL LET YOU GET IN TOUCH WITH ONE AT THE RIGHT TIME, NOT UNTIL
THEN.' 

"A.  NO, SIR. 

"Q.  BUT THERE WAS TALK ABOUT A LAWYER?  A. YES, SIR." 

PETITIONER IS ILLITERATE AND MENTALLY DEFECTIVE - A MORON OR AN
IMBECILE.  HE SPENT SIX YEARS IN THE THIRD GRADE AND LEFT SCHOOL AT THE
AGE OF SIXTEEN.  HE HAS TWICE BEEN IN STATE INSTITUTIONS FOR THE FEEBLE
MINDED. 

HE DID NOT SEE AN ATTORNEY UNTIL SIX DAYS AFTER HE WAS FIRST ARRESTED
AND AFTER HE HAD CONFESSED TO THE POLICE.  DURING ALL THIS TIME THE
POLICE QUESTIONED HIM UNTIL THEIR QUESTIONING PRODUCED THE CONFESSION
ON WHICH HIS PRESENT CONVICTION IS BASED. 

IT IS SAID THAT IF WE ENFORCED THE GUARANTEE OF COUNSEL BY ALLOWING A
PERSON, WHO IS ARRESTED, TO OBTAIN LEGAL ADVICE BEFORE TALKING WITH THE
POLICE, WE "WOULD EFFECTIVELY PRECLUDE POLICE QUESTIONING" (CROOKER V.
CALIFORNIA, SUPRA, 441) AND "WOULD CONSTRICT STATE POLICE ACTIVITIES IN
A MANNER THAT IN MANY INSTANCES MIGHT IMPAIR THEIR ABILITY TO SOLVE
DIFFICULT CASES."  CICENIA V. LAGAY, SUPRA, 509.  IT IS SAID THAT "ANY
LAWYER WORTH HIS SALT WILL TELL THE SUSPECT IN NO UNCERTAIN TERMS TO
MAKE NO STATEMENT TO POLICE UNDER ANY CIRCUMSTANCES."  WATTS V.
INDIANA, 338 U.S. 49, 57, 59 (CONCURRING OPINION).  IN OTHER WORDS, AN
ATTORNEY IS LIKELY TO INFORM HIS CLIENT, CLEARLY AND UNEQUIVOCALLY,
THAT "NO PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF," AS PROVIDED IN THE FIFTH AMENDMENT.  THIS IS
THE "EVIL" TO BE FEARED FROM CONTACT BETWEEN A POLICE SUSPECT AND HIS
LAWYER. 

INTERROGATION OF PEOPLE BY THE POLICE IS AN INDISPENSABLE ASPECT OF
CRIMINAL INVESTIGATIONS.  BUT THERE IS NO RIGHT TO INTERROGATE - BY THE
POLICE ANY MORE THAN BY THE COURTS - WHEN THE PRIVILEGE AGAINST SELF
INCRIMINATION IS INVOKED.  KNOWING THIS, THE POLICE HAVE SET UP IN ITS
PLACE A SYSTEM OF ADMINISTRATIVE DETENTION THAT HAS NO CONSTITUTIONAL
JUSTIFICATION.  IT IS DETENTION INCOMMUNICADO, A SYSTEM WHICH BREEDS
OPPRESSION.  SEE HALEY V. OHIO, 332 U.S. 596.  IN THE PRESENT CASE THIS
ILLITERATE PETITIONER WAS NOT GIVEN THE MODICUM OF PROTECTION AFFORDED
IN ENGLAND WHERE A PRISONER IS WARNED THAT STATEMENTS MADE MAY BE USED
AGAINST HIM (FN2) AND WHERE THE POLICE ARE ENJOINED NOT TO HAMMER AWAY
AT A PRISONER NOR EVEN TO CROSS-EXAMINE HIM WHEN HE MAKES A VOLUNTARY
STATEMENT EXCEPT TO CLEAR UP AMBIGUITIES.  SEE DEVLIN, THE CRIMINAL
PROSECUTION IN ENGLAND (1958), PP. 137-141.  THE FLOW OF CASES COMING
HERE SHOWS THAT DETENTION INCOMMUNICADO IS OFTEN ACCOMPANIED BY
ILLEGALITY AND BRUTALITY.  THE ARRIVAL OF AN ATTORNEY IS A SPECIFIC
AGAINST THESE PROSCRIBED PRACTICES. 

IF THIS ACCUSED WERE A SON OF A WEALTHY OR PROMINENT PERSON, AND
DEMANDED A LAWYER, CAN THERE BE ANY DOUBT THAT HIS REQUEST WOULD HAVE
BEEN HEEDED?  BUT PETITIONER HAS NO SOCIAL STATUS.  HE COMES FROM A
LOWLY ENVIRONMENT.  NO CLASS OR FAMILY IS HIS ALLY.  HIS HELPLESSNESS
BEFORE THE POLICE WHEN HE IS WITHOUT "THE GUIDING HAND OF COUNSEL"
(POWELL V. ALABAMA, 287 U.S. 45, 69) EMPHASIZES THE LACK OF EQUAL
PROTECTION INHERENT IN THE DWARFED AND TWISTED CONSTRUCTION WE HAVE
GIVEN THE CONSTITUTIONAL GUARANTEE OF THE ASSISTANCE OF COUNSEL.  CF.
MCNEAL V. CULVER, 365 U.S. 109, 117 (CONCURRING OPINION). 

THE SYSTEM OF POLICE INTERROGATION UNDER SECRET DETENTION FALLS
HEAVIEST ON THE WEAK AND ILLITERATE - THE LEAST ARTICULATE SEGMENTS OF
OUR SOCIETY.  SEE AMERICAN CIVIL LIBERTIES UNION REPORT, SECRET
DETENTION BY THE CHICAGO POLICE (1959), PP. 19-21.  THE INDIGENT WHO
LANGUISHES IN JAIL FOR WANT OF BAIL, CF. BANDY V. UNITED STATES, 81 S.
CT. 197 (MEMORANDUM OPINION), OR THE MEMBER OF A MINORITY GROUP WITHOUT
STATUS OR POWER (FN3) IS THE ONE WHO SUFFERS MOST WHEN WE LEAVE THE
CONSTITUTIONAL RIGHT TO COUNSEL TO THE DISCRETION OF THE POLICE.  THAT
RIGHT CAN ONLY BE PROTECTED BY A BROAD GUARANTEE OF COUNSEL THAT
APPLIES ACROSS THE BOARD TO RICH AND POOR ALIKE.  SEE RECK V. PATE,
ANTE, P. 444 (CONCURRING OPINION). 

I BELIEVE THAT THE DENIAL OF PETITIONER'S REQUEST THAT HE BE GIVEN
THE RIGHT OF COUNSEL WAS A VIOLATION OF HIS CONSTITUTIONAL RIGHTS.  I
THEREFORE CONCUR IN THE JUDGMENT OF THE COURT REVERSING THE
CONVICTION. 

FN1  CF. IN RE OLIVER, 333 U.S. 257; IN RE GROBAN, 352 U.S. 330, 337
(DISSENTING OPINION); ANONYMOUS V. BAKER, 360 U.S. 287, 298 (DISSENTING
OPINION). 

FN2  "THE FORM OF CAUTION EXPRESSES TWO THINGS.  FIRST, THERE IS THE
REMINDER THAT THE ACCUSED IS NOT OBLIGED TO TALK:  SECONDLY, THERE IS
THE WARNING THAT, IF HE DOES TALK, WHAT HE SAYS WILL BE TAKEN DOWN IN
WRITING AND MAY BE GIVEN IN EVIDENCE.  FROM THE LAWYER'S POINT OF VIEW
BOTH ARE STATEMENTS OF THE OBVIOUS.  JUST AS AN ACCUSED OR SUSPECT IS
NEVER OBLIGED TO TALK, SO THE POLICE ARE ALWAYS AT LIBERTY TO TAKE DOWN
WHAT AN ACCUSED OR SUSPECT SAYS AND GIVE IT IN EVIDENCE.  THE REAL
SIGNIFICANCE OF THE CAUTION IS THAT IT IS, SO TO SPEAK, A DECLARATION
OF WAR.  BY IT THE POLICE ANNOUNCE THAT THEY ARE NO LONGER REPRESENTING
THEMSELVES TO THE MAN THEY ARE QUESTIONING AS THE NEUTRAL INQUIRER WHOM
THE GOOD CITIZEN OUGHT TO ASSIST; THEY ARE THE PROSECUTION AND ARE
WITHOUT RIGHT, LEGAL OR MORAL, TO FURTHER HELP FROM THE ACCUSED; NO
MAN, INNOCENT OR GUILTY, NEED THEREAFTER REPROACH HIMSELF FOR KEEPING
SILENT, FOR THAT IS WHAT THEY HAVE JUST TOLD HIM HE MAY DO.  THE
CAUTION, THE CHARGE, THE ARREST - ANY OF THESE THREE THINGS SHOW THAT
HOSTITILITES HAVE BEGUN AND THAT THE SUSPECT HAS FORMALLY BECOME THE
ACCUSED."  DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND (1958), PP. 36
37. 

FN3  "POLICE OFFICERS ARE CHARGED WITH THE FAIR AND IMPARTIAL
ADMINISTRATION OF THE LAW.  YET, IN MANY LOCALITIES, THERE ARE SHARP
AND SHOCKING CONTRASTS IN THE KIND OF 'LAW' ADMINISTERED TO DIFFERENT
GROUPS OF CITIZENS  ...  .  PEOPLE LACKING SPECIAL STATUS OR 'PULL' MAY
BE PUSHED AROUND, ROUGHED UP, ARRESTED ON VAGUE AND EVEN FALSE CHARGES,
AND TREATED GENERALLY AS SECOND-CLASS CITIZENS.  THIS IS ESPECIALLY
TRUE OF DWELLERS IN SLUM AREAS WITH HIGH CRIME RATES - AND EVEN MORE
ESPECIALLY OF POVERTY-RIDDEN NEGROES AND OTHER MINORITY GROUPS - WHERE
POLICE RAIDS ON TENEMENT HOMES ARE SOMETIMES MADE ON SLIGHT SUSPICION
WITHOUT THE BENEFIT OF SEARCH WARRANTS."  DEUTSCH, THE TROUBLE WITH
COPS (1955), P. 63. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK JOIN, CONCURRING IN THE RESULT. 

IT IS MY VIEW THAT THE FACTS STATED IN PART V OF THE OPINION OF MY
BROTHER FRANKFURTER REQUIRE THE CONCLUSION THAT ALL AND NOT ALONE THE
WEDNESDAY CONFESSIONS WERE COERCED FROM THE PETITIONER, AND THAT UNDER
OUR CASES NONE IS ADMISSIBLE IN EVIDENCE AGAINST HIM.  SEE, E.G., FIKES
V. ALABAMA, 352 U.S. 191, AND CASES THERE CITED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE WHITTAKER
JOIN, DISSENTING. 

I AGREE TO WHAT MY BROTHER FRANKFURTER HAS WRITTEN IN DELINEATION OF
THE GENERAL PRINCIPLES GOVERNING POLICE INTERROGATION OF THOSE
SUSPECTED OF, OR UNDER INVESTIGATION IN CONNECTION WITH, THE COMMISSION
OF CRIME, AND AS TO THE FACTORS WHICH SHOULD GUIDE FEDERAL JUDICIAL
REVIEW OF STATE ACTION IN THIS FIELD.  I THINK, HOWEVER, THAT UPON THIS
RECORD, WHICH CONTAINS FEW OF THE HALLMARKS USUALLY FOUND IN "COERCED
CONFESSION" CASES, SUCH CONSIDERATIONS FIND THEIR PROPER REFLECTION IN
AFFIRMANCE OF THIS JUDGMENT. 

WITH DUE REGARD TO THE MEDICAL AND OTHER EVIDENCE AS TO PETITIONER'S
HISTORY AND SUBNORMAL MENTALITY, I AM UNABLE TO CONSIDER THAT IT WAS
CONSTITUTIONALLY IMPERMISSIBLE FOR THE STATE TO CONCLUDE THAT
PETITIONER'S "WEDNESDAY" CONFESSIONS WERE THE PRODUCT OF A DELIBERATE
CHOICE ON HIS PART TO TRY TO AMERLIORATE HIS FATE BY MAKING A CLEAN
BREAST OF THINGS, AND NOT THE CONSEQUENCE OF IMPROPER POLICE ACTIVITY. 
TO ME, PETITIONER'S SUPPLEMENTAL CONFESSION ON THE FOLLOWING SATURDAY
NIGHT, WHICH AS DEPICTED BY THE RECORD BEARS ALL THE INDICIA OF
SPONTANEITY, IS ESPECIALLY PERSUASIVE AGAINST THIS COURT'S CONTRARY
VIEW. 

I SHOULD ALSO ADD THAT I FIND NO CONSTITUTIONAL INFIRMITY IN THE
STANDARDS USED BY THE CONNECTICUT COURTS IN EVALUATING THE
VOLUNTARINESS OF PETITIONER'S CONFESSIONS.  CF. ROGERS V. RICHMOND, 365
U.S. 534. 

I WOULD AFFIRM. 
..END :














MAPP V. OHIO 367 U.S. 643 


NO. 236.  ARGUED MARCH 29, 1961 - DECIDED JUNE 19, 1961 - 170 OHIO ST.
427, 166 N.E.2D 387, REVERSED. 


ALL EVIDENCE OBTAINED BY SEARCHES AND SEIZURES IN VIOLATION OF THE
FEDERAL CONSTITUTION IS INADMISSIBLE IN A CRIMINAL TRIAL IN A STATE
COURT.  WOLF V. COLORADO, 338 U.S. 25, OVERRULED INSOFAR AS IT HOLDS TO
THE CONTRARY.  PP. 643-660. 

MAPP V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

APPELLANT STANDS CONVICTED OF KNOWINGLY HAVING HAD IN HER POSSESSION
AND UNDER HER CONTROL CERTAIN LEWD AND LASCIVIOUS BOOKS, PICTURES, AND
PHOTOGRAPHS IN VIOLATION OF SEC. 2905.34 OF OHIO'S REVISED CODE.  (FN1)
AS OFFICIALLY STATED IN THE SYLLABUS TO ITS OPINION, THE SUPREME COURT
OF OHIO FOUND THAT HER CONVICTION WAS VALID THOUGH "BASED PRIMARILY
UPON THE INTRODUCTION IN EVIDENCE OF LEWD AND LASCIVIOUS BOOKS AND
PICTURES UNLAWFULLY SEIZED DURING AN UNLAWFUL SEARCH OF DEFENDANT'S
HOME  ... ."  170 OHIO ST. 427-428, 166 N.E.2D 387, 388. 

ON MAY 23, 1957, THREE CLEVELAND POLICE OFFICERS ARRIVED AT
APPELLANT'S RESIDENCE IN THAT CITY PURSUANT TO INFORMATION THAT "A
PERSON WAS HIDING OUT IN THE HOME, WHO WAS WANTED FOR QUESTIONING IN
CONNECTION WITH A RECENT BOMBING, AND THAT THERE WAS A LARGE AMOUNT OF
POLICY PARAPHERNALIA BEING HIDDEN IN THE HOME."  MISS MAPP AND HER
DAUGHTER BY A FORMER MARRIAGE LIVED ON THE TOP FLOOR OF THE TWO-FAMILY
DWELLING.  UPON THEIR ARRIVAL AT THAT HOUSE, THE OFFICERS KNOCKED ON
THE DOOR AND DEMANDED ENTRANCE BUT APPELLANT, AFTER TELEPHONING HER
ATTORNEY, REFUSED TO ADMIT THEM WITHOUT A SEARCH WARRANT.  THEY ADVISED
THEIR HEADQUARTERS OF THE SITUATION AND UNDERTOOK A SURVEILLANCE OF THE
HOUSE. 

THE OFFICERS AGAIN SOUGHT ENTRANCE SOME THREE HOURS LATER WHEN FOUR
OR MORE ADDITIONAL OFFICERS ARRIVED ON THE SCENE.  WHEN MISS MAPP DID
NOT COME TO THE DOOR IMMEDIATELY, AT LEAST ONE OF THE SEVERAL DOORS TO
THE HOUSE WAS FORCIBLY OPENED (FN2) AND THE POLICEMEN GAINED
ADMITTANCE.  MEANWHILE MISS MAPP'S ATTORNEY ARRIVED, BUT THE OFFICERS,
HAVING SECURED THEIR OWN ENTRY, AND CONTINUING IN THEIR DEFIANCE OF THE
LAW, WOULD PERMIT HIM NEITHER TO SEE MISS MAPP NOR TO ENTER THE HOUSE. 
IT APPEARS THAT MISS MAPP WAS HALFWAY DOWN THE STAIRS FROM THE UPPER
FLOOR TO THE FRONT DOOR WHEN THE OFFICERS, IN THIS HIGHHANDED MANNER,
BROKE INTO THE HALL.  SHE DEMANDED TO SEE THE SEARCH WARRANT.  A PAPER,
CLAIMED TO BE A WARRANT, WAS HELD UP BY ONE OF THE OFFICERS.  SHE
GRABBED THE "WARRANT" AND PLACED IT IN HER BOSOM.  A STRUGGLE ENSUED IN
WHICH THE OFFICERS RECOVERED THE PIECE OF PAPER AND AS A RESULT OF
WHICH THEY HANDCUFFED APPELLANT BECAUSE SHE HAD BEEN "BELLIGERENT" IN
RESISTING THEIR OFFICIAL RESCUE OF THE "WARRANT" FROM HER PERSON. 
RUNNING ROUGHSHOD OVER APPELLANT, A POLICEMAN "GRABBED" HER, "TWISTED
HER HAND," AND SHE "YELLED AND PLEADED WITH HIM" BECAUSE "IT WAS
HURTING."  APPELLANT, IN HANDCUFFS, WAS THEN FORCIBLY TAKEN UPSTAIRS TO
HER BEDROOM WHERE THE OFFICERS SEARCHED A DRESSER, A CHEST OF DRAWERS,
A CLOSET AND SOME SUITCASES.  THEY ALSO LOOKED INTO A PHOTO ALBUM AND
THROUGH PERSONAL PAPERS BELONGING TO THE APPELLANT.  THE SEARCH SPREAD
TO THE REST OF THE SECOND FLOOR INCLUDING THE CHILD'S BEDROOM, THE
LIVING ROOM, THE KITCHEN AND A DINETTE.  THE BASEMENT OF THE BUILDING
AND A TRUNK FOUND THEREIN WERE ALSO SEARCHED.  THE OBSCENE MATERIALS
FOR POSSESSION OF WHICH SHE WAS ULTIMATELY CONVICTED WERE DISCOVERED IN
THE COURSE OF THAT WIDESPREAD SEARCH. 

AT THE TRIAL NO SEARCH WARRANT WAS PRODUCED BY THE PROSECUTION, NOR
WAS THE FAILURE TO PRODUCE ONE EXPLAINED OR ACCOUNTED FOR.  AT BEST,
"THERE IS, IN THE RECORD, CONSIDERABLE DOUBT AS TO WHETHER THERE EVER
WAS ANY WARRANT FOR THE SEARCH OF DEFENDANT'S HOME."  170 OHIO ST., AT
430, 166 N.E.2D, AT 389.  THE OHIO SUPREME COURT BELIEVED A "REASONABLE
ARGUMENT" COULD BE MADE THAT THE CONVICTION SHOULD BE REVERSED "BECAUSE
THE 'METHODS' EMPLOYED TO OBTAIN THE EVIDENCE  ...  WERE SUCH AS TO
'OFFEND "A SENSE OF JUSTICE,"'"BUT THE COURT FOUND DETERMINATIVE THE
FACT THAT THE EVIDENCE HAD NOT BEEN TAKEN "FROM DEFENDANT'S PERSON BY
THE USE OF BRUTAL OR OFFENSIVE PHYSICAL FORCE AGAINST DEFENDANT."  170
OHIO ST., AT 431, 166 N.E.2D, AT 389-390. 

THE STATE SAYS THAT EVEN IF THE SEARCH WERE MADE WITHOUT AUTHORITY,
OR OTHERWISE UNREASONABLY, IT IS NOT PREVENTED FROM USING THE
UNCONSTITUTIONALLY SEIZED EVIDENCE AT TRIAL, CITING WOLF V. COLORADO,
338 U.S. 25 (1949), IN WHICH THIS COURT DID INDEED HOLD "THAT IN A
PROSECUTION IN A STATE COURT FOR A STATE CRIME THE FOURTEENTH AMENDMENT
DOES NOT FORBID THE ADMISSION OF EVIDENCE OBTAINED BY AN UNREASONABLE
SEARCH AND SEIZURE."  AT P. 33.  ON THIS APPEAL, OF WHICH WE HAVE NOTED
PROBABLE JURISDICTION, 364 U.S. 868, IT IS URGED ONCE AGAIN THAT WE
REVIEW THAT HOLDING.  (FN3)

                                      I. 

SEVENTY-FIVE YEARS AGO, IN BOYD V. UNITED STATES, 116 U.S. 616, 630
(1886), CONSIDERING THE FOURTH (FN4) AND FIFTH AMENDMENTS AS RUNNING
"ALMOST INTO EACH OTHER" (FN5) ON THE FACTS BEFORE IT, THIS COURT HELD
THAT THE DOCTRINES OF THOSE AMENDMENTS: 

"APPLY TO ALL INVASIONS ON THE PART OF THE GOVERNMENT AND ITS
EMPLOYES OF THE SANCTITY OF A MAN'S HOME AND THE PRIVACIES OF LIFE.  IT
IS NOT THE BREAKING OF HIS DOORS, AND THE RUMMAGING OF HIS DRAWERS,
THAT CONSTITUTES THE ESSENCE OF THE OFFENCE; BUT IT IS THE INVASION OF
HIS INDEFEASIBLE RIGHT OF PERSONAL SECURITY, PERSONAL LIBERTY AND
PRIVATE PROPERTY  ...  .  BREAKING INTO A HOUSE AND OPENING BOXES AND
DRAWERS ARE CIRCUMSTANCES OF AGGRAVATION; BUT ANY FORCIBLE AND
COMPULSORY EXTORTION OF A MAN'S OWN TESTIMONY OR OF HIS PRIVATE PAPERS
TO BE USED AS EVIDENCE TO CONVICT HIM OF CRIME OR TO FORFEIT HIS GOODS,
IS WITHIN THE CONDEMNATION  ...  OF THOSE AMENDMENTS." 

THE COURT NOTED THAT: 

"CONSTITUTIONAL PROVISIONS FOR THE SECURITY OF PERSON AND PROPERTY
SHOULD BE LIBERALLY CONSTRUED ...  .  IT IS THE DUTY OF COURTS TO BE
WATCHFUL FOR THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST ANY
STEALTHY ENCROACHMENTS THEREON."  AT P. 635. 

IN THIS JEALOUS REGARD FOR MAINTAINING THE INTEGRITY OF INDIVIDUAL
RIGHTS, THE COURT GAVE LIFE TO MADISON'S PREDICTION THAT "INDEPENDENT
TRIBUNALS OF JUSTICE  ...  WILL BE NATURALLY LED TO RESIST EVERY
ENCROACHMENT UPON RIGHTS EXPRESSLY STIPULATED FOR IN THE CONSTITUTION
BY THE DECLARATION OF RIGHTS."  I ANNALS OF CONG. 439 (1789). 
CONCLUDING, THE COURT SPECIFICALLY REFERRED TO THE USE OF THE EVIDENCE
THERE SEIZED AS "UNCONSTITUTIONAL."  AT P. 638. 

LESS THAN 30 YEARS AFTER BOYD, THIS COURT, IN WEEKS V. UNITED STATES,
232 U.S. 383 (1914), STATED THAT: 

"THE FOURTH AMENDMENT  ...  PUT THE COURTS OF THE UNITED STATES AND
FEDERAL OFFICIALS, IN THE EXERCISE OF THEIR POWER AND AUTHORITY, UNDER
LIMITATIONS AND RESTRAINTS AND  ...  FOREVER SECURED THE PEOPLE, THEIR
PERSONS, HOUSES, PAPERS AND EFFECTS AGAINST ALL UNREASONABLE SEARCHES
AND SEIZURES UNDER THE GUISE OF LAW  ...  AND THE DUTY OF GIVING TO IT
FORCE AND EFFECT IS OBLIGATORY UPON ALL ENTRUSTED UNDER OUR FEDERAL
SYSTEM WITH THE ENFORCEMENT OF THE LAWS."  AT PP. 391-392. 

SPECIFICALLY DEALING WITH THE USE OF THE EVIDENCE UNCONSTITUTIONALLY
SEIZED, THE COURT CONCLUDED: 

"IF LETTERS AND PRIVATE DOCUMENTS CAN THUS BE SEIZED AND HELD AND
USED IN EVIDENCE AGAINST A CITIZEN ACCUSED OF AN OFFENSE, THE
PROTECTION OF THE FOURTH AMENDMENT DECLARING HIS RIGHT TO BE SECURE
AGAINST SUCH SEARCHES AND SEIZURES IS OF NO VALUE, AND, SO FAR AS THOSE
THUS PLACED ARE CONCERNED, MIGHT AS WELL BE STRICKEN FROM THE
CONSTITUTION.  THE EFFORTS OF THE COURTS AND THEIR OFFICIALS TO BRING
THE GUILTY TO PUNISHMENT, PRAISEWORTHY AS THEY ARE, ARE NOT TO BE AIDED
BY THE SACRIFICE OF THOSE GREAT PRINCIPLES ESTABLISHED BY YEARS OF
ENDEAVOR AND SUFFERING WHICH HAVE RESULTED IN THEIR EMBODIMENT IN THE
FUNDAMENTAL LAW OF THE LAND."  AT P. 393. 

FINALLY, THE COURT IN THAT CASE CLEARLY STATED THAT USE OF THE SEIZED
EVIDENCE INVOLVED "A DENIAL OF THE CONSTITUTIONAL RIGHTS OF THE
ACCUSED."  AT P. 398.  THUS, IN THE YEAR 1914, IN THE WEEKS CASE, THIS
COURT "FOR THE FIRST TIME" HELD THAT "IN A FEDERAL PROSECUTION THE
FOURTH AMENDMENT BARRED THE USE OF EVIDENCE SECURED THROUGH AN ILLEGAL
SEARCH AND SEIZURE."  WOLF V. COLORADO, SUPRA, AT 28.  THIS COURT HAS
EVER SINCE REQUIRED OF FEDERAL LAW OFFICERS A STRICT ADHERENCE TO THAT
COMMAND WHICH THIS COURT HAS HELD TO BE A CLEAR, SPECIFIC, AND
CONSTITUTIONALLY REQUIRED - EVEN IF JUDICIALLY IMPLIED - DETERRENT
SAFEGUARD WITHOUT INSISTENCE UPON WHICH THE FOURTH AMENDMENT WOULD HAVE
BEEN REDUCED TO "A FORM OF WORDS."  HOLMES, J., SILVERTHORNE LUMBER CO.
V. UNITED STATES, 251 U.S. 385, 392 (1920).  IT MEANT, QUITE SIMPLY,
THAT "CONVICTION BY MEANS OF UNLAWFUL SEIZURES AND ENFORCED CONFESSIONS
...  SHOULD FIND NO SANCTION IN THE JUDGMENTS OF THE COURTS  ...  ,"
WEEKS V. UNITED STATES, SUPRA, AT 392, AND THAT SUCH EVIDENCE "SHALL
NOT BE USED AT ALL."  SILVERTHORNE LUMBER CO. V. UNITED STATES, SUPRA,
AT 392. 

THERE ARE IN THE CASES OF THIS COURT SOME PASSING REFERENCES TO THE
WEEKS RULE AS BEING ONE OF EVIDENCE.  BUT THE PLAIN AND UNEQUIVOCAL
LANGUAGE OF WEEKS - AND ITS LATER PARAPHRASE IN WOLF - TO THE EFFECT
THAT THE WEEKS RULE IF OF CONSTITUTIONAL ORIGIN, REMAINS ENTIRELY
UNDISTURBED.  IN BYARS V. UNITED STATES, 273 U.S. 28 (1927), A
UNANIMOUS COURT DECLARED THAT "THE DOCTRINE CANNOT  ...  BE TOLERATED
UNDER OUR CONSTITUTIONAL SYSTEM, THAT EVIDENCES OF CRIME DISCOVERED BY
A FEDERAL OFFICER IN MAKING A SEARCH WITHOUT LAWFUL WARRANT MAY BE USED
AGAINST THE VICTIM OF THE UNLAWFUL SEARCH WHERE A TIMELY CHALLENGE HAS
BEEN INTERPOSED."  AT PP. 29-30.  THE COURT, IN OLMSTEAD V. UNITED
STATES, 277 U.S. 438 (1928), IN UNMISTAKABLE LANGUAGE RESTATED THE
WEEKS RULE: 

"THE STRIKING OUTCOME OF THE WEEKS CASE AND THOSE WHICH FOLLOWED IT
WAS THE SWEEPING DECLARATION THAT THE FOURTH AMENDMENT, ALTHOUGH NOT
REFERRING TO OR LIMITING THE USE OF EVIDENCE IN COURTS, REALLY FORBADE
ITS INTRODUCTION IF OBTAINED BY GOVERNMENT OFFICERS THROUGH A VIOLATION
OF THE AMENDMENT."  AT P. 462. 

IN MCNABB V. UNITED STATES, 318 U.S. 332 (1943), WE NOTE THIS
STATEMENT: 

"A CONVICTION IN THE FEDERAL COURTS, THE FOUNDATION OF WHICH IS
EVIDENCE OBTAINED IN DISREGARD OF LIBERTIES DEEMED FUNDAMENTAL BY THE
CONSTITUTION, CANNOT STAND.  BOYD V. UNITED STATES ...  WEEKS V. UNITED
STATES  ...  .  AND THIS COURT HAS, ON CONSTITUTIONAL GROUNDS, SET
ASIDE CONVICTIONS, BOTH IN THE FEDERAL AND STATE COURTS, WHICH WERE
BASED UPON CONFESSIONS 'SECURED BY PROTRACTED AND REPEATED QUESTIONING
OF IGNORANT AND UNTUTORED PERSONS, IN WHOSE MINDS THE POWER OF OFFICERS
WAS GREATLY MAGNIFIED'  ...  OR 'WHO HAVE BEEN UNLAWFULLY HELD
INCOMMUNICADO WITHOUT ADVICE OF FRIENDS OR COUNSEL'  ...  ."  AT PP.
339-340. 

SIGNIFICANTLY, IN MCNABB, THE COURT DID THEN PASS ON TO FORMULATE A
RULE OF EVIDENCE, SAYING, "IN THE VIEW WE TAKE OF THE CASE, HOWEVER, IT
BECOMES UNNECESSARY TO REACH THE CONSTITUTIONAL ISSUE FOR ... THE
PRINCIPLES GOVERNING THE ADMISSIBILITY OF EVIDENCE IN FEDERAL CRIMINAL
TRIALS HAVE NOT BEEN RESTRICTED  ...  TO THOSE DERIVED SOLELY FROM THE
CONSTITUTION."  AT PP.  340-341. 

                                     II. 

IN 1949, 35 YEARS AFTER WEEKS WAS ANNOUNCED, THIS COURT, IN WOLF V.
COLORADO, SUPRA, AGAIN FOR THE FIRST TIME, (FN6) DISCUSSED THE EFFECT
OF THE FOURTH AMENDMENT UPON THE STATES THROUGH THE OPERATION OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IT SAID: 

"WE HAVE NO HESITATION IN SAYING THAT WERE A STATE AFFIRMATIVELY TO
SANCTION SUCH POLICE INCURSION INTO PRIVACY IT WOULD RUN COUNTER TO THE
GUARANTY OF THE FOURTEENTH AMENDMENT."  AT P. 28. 

NEVERTHELESS, AFTER DECLARING THAT THE "SECURITY OF ONE'S PRIVACY
AGAINST ARBITRARY INTRUSION BY THE POLICE" IS "IMPLICIT IN 'THE CONCEPT
OF ORDERED LIBERTY' AND AS SUCH ENFORCEABLE AGAINST THE STATES THROUGH
THE DUE PROCESS CLAUSE," CF. PALKO V. CONNECTICUT, 302 U.S. 319 (1937),
AND ANNOUNCING THAT IT "STOUTLY ADHERED" TO THE WEEKS DECISION, THE
COURT DECIDED THAT THE WEEKS EXCLUSIONARY RULE WOULD NOT THEN BE
IMPOSED UPON THE STATES AS "AN ESSENTIAL INGREDIENT OF THE RIGHT."  338
U.S., AT 27-29.  THE COURT'S REASONS FOR NOT CONSIDERING ESSENTIAL TO
THE RIGHT TO PRIVACY, AS A CURB IMPOSED UPON THE STATES BY THE DUE
PROCESS CLAUSE, THAT WHICH DECADES BEFORE HAD BEEN POSITED AS PART AND
PARCEL OF THE FOURTH AMENDMENT'S LIMITATION UPON FEDERAL ENCROACHMENT
OF INDIVIDUAL PRIVACY, WERE BOTTOMED ON FACTUAL CONSIDERATIONS. 

WHILE THEY ARE NOT BASICALLY RELEVANT TO A DECISION THAT THE
EXCLUSIONARY RULE IS AN ESSENTIAL INGREDIENT OF THE FOURTH AMENDMENT AS
THE RIGHT IT EMBODIES IS VOUCHSAFED AGAINST THE STATES BY THE DUE
PROCESS CLAUSE, WE WILL CONSIDER THE CURRENT VALIDITY OF THE FACTUAL
GROUNDS UPON WHICH WOLF WAS BASED. 

THE COURT IN WOLF FIRST STATED THAT "THE CONTRARIETY OF VIEWS OF THE
STATES" ON THE ADOPTION OF THE EXCLUSIONARY RULE OF WEEKS WAS
"PARTICULARLY IMPRESSIVE" (AT P. 29); AND, IN THIS CONNECTION, THAT IT
COULD NOT "BRUSH ASIDE THE EXPERIENCE OF STATES WHICH DEEM THE
INCIDENCE OF SUCH CONDUCT BY THE POLICE TOO SLIGHT TO CALL FOR A
DETERRENT REMEDY  ...  BY OVERRIDING THE STATES' RELEVANT RULES OF
EVIDENCE."  AT PP. 31-32.  WHILE IN 1949, PRIOR TO THE WOLF CASE,
ALMOST TWO-THIRDS OF THE STATES WERE OPPOSED TO THE USE OF THE
EXCLUSIONARY RULE, NOW, DESPITE THE WOLF CASE, MORE THAN HALF OF THOSE
SINCE PASSING UPON IT, BY THEIR OWN LEGISLATIVE OR JUDICIAL DECISION,
HAVE WHOLLY OR PARTLY ADOPTED OR ADHERED TO THE WEEKS RULE.  SEE ELKINS
V. UNITED STATES, 364 U.S. 206, APPENDIX, PP. 224-232 (1960). 
SIGNIFICANTLY, AMONG THOSE NOW FOLLOWING THE RULE IS CALIFORNIA, WHICH,
ACCORDING TO ITS HIGHEST COURT, WAS "COMPELLED TO REACH THAT CONCLUSION
BECAUSE OTHER REMEDIES HAVE COMPLETELY FAILED TO SECURE COMPLIANCE WITH
THE CONSTITUTIONAL PROVISIONS  ...  ."  PEOPLE V. CAHAN, 44 CAL. 2D
434, 445, 282 P.2D 905, 911 (1955).  IN CONNECTION WITH THIS CALIFORNIA
CASE, WE NOTE THAT THE SECOND BASIS ELABORATED IN WOLF IN SUPPORT OF
ITS FAILURE TO ENFORCE THE EXCLUSIONARY DOCTRINE AGAINST THE STATES WAS
THAT "OTHER MEANS OF PROTECTION" HAVE BEEN AFFORDED "THE RIGHT TO
PRIVACY."  (FN7)  338 U.S., AT 30.  THE EXPERIENCE OF CALIFORNIA THAT
SUCH OTHER REMEDIES HAVE BEEN WORTHLESS AND FUTILE IS BUTTRESSED BY THE
EXPERIENCE OF OTHER STATES.  THE OBVIOUS FUTILITY OF RELEGATING THE
FOURTH AMENDMENT TO THE PROTECTION OF OTHER REMEDIES HAS, MOREOVER,
BEEN RECOGNIZED BY THIS COURT SINCE WOLF.  SEE IRVINE V. CALIFORNIA,
347 U.S. 128, 137 (1954). 

LIKEWISE, TIME HAS SET ITS FACE AGAINST WHAT WOLF CALLED THE "WEIGHTY
TESTIMONY" OF PEOPLE V. DEFORE, 242 N.Y. 13, 150 N.E. 585 (1926). 
THERE JUSTICE (THEN JUDGE) CARDOZO, REJECTING ADOPTION OF THE WEEKS
EXCLUSIONARY RULE IN NEW YORK, HAD SAID THAT "THE FEDERAL RULE AS IT
STANDS IS EITHER TOO STRICT OR TOO LAX."  242 N.Y., AT 22, 150 N.E., AT
588.  HOWEVER, THE FORCE OF THAT REASONING HAS BEEN LARGELY VITIATED BY
LATER DECISIONS OF THIS COURT.  THESE INCLUDE THE RECENT DISCARDING OF
THE "SILVER PLATTER" DOCTRINE WHICH ALLOWED FEDERAL JUDICIAL USE OF
EVIDENCE SEIZED IN VIOLATION OF THE CONSTITUTION BY STATE AGENTS,
ELKINS V. UNITED STATES, SUPRA; THE RELAXATION OF THE FORMERLY STRICT
REQUIREMENTS AS TO STANDING TO CHALLENGE THE USE OF EVIDENCE THUS
SEIZED, SO THAT NOW THE PROCEDURE OF EXCLUSION, "ULTIMATELY REFERABLE
TO CONSTITUTIONAL SAFEGUARDS," IS AVAILABLE TO ANYONE EVEN
"LEGITIMATELY ON THE PREMISES" UNLAWFULLY SEARCHED, JONES V. UNITED
STATES, 362 U.S. 257, 266-267 (1960); AND, FINALLY, THE FORMULATION OF
A METHOD TO PREVENT STATE USE OF EVIDENCE UNCONSTITUTIONALLY SEIZED BY
FEDERAL AGENTS, REA V. UNITED STATES, 350 U.S. 214 (1956).  BECAUSE
THERE CAN BE NO FIXED FORMULA, WE ARE ADMITTEDLY MET WITH "RECURRING
QUESTIONS OF THE REASONABLENESS OF SEARCHES," BUT LESS IS NOT TO BE
EXPECTED WHEN DEALING WITH A CONSTITUTION, AND, AT ANY RATE,
"REASONABLENESS IS IN THE FIRST INSTANCE FOR THE TRIAL COURT  ...  TO
DETERMINE."  UNITED STATES V. RABINOWITZ, 339 U.S. 56, 63 (1950). 

IT, THEREFORE, PLAINLY APPEARS THAT THE FACTUAL CONSIDERATIONS
SUPPORTING THE FAILURE OF THE WOLF COURT TO INCLUDE THE WEEKS
EXCLUSIONARY RULE WHEN IT RECOGNIZED THE ENFORCEABILITY OF THE RIGHT TO
PRIVACY AGAINST THE STATES IN 1949, WHILE NOT BASICALLY RELEVANT TO THE
CONSTITUTIONAL CONSIDERATION, COULD NOT, IN ANY ANALYSIS, NOW BE DEEMED
CONTROLLING. 

                    III. 

SOME FIVE YEARS AFTER WOLF, IN ANSWER TO A PLEA MADE HERE TERM AFTER
TERM THAT WE OVERTURN ITS DOCTRINE ON APPLICABILITY OF THE WEEKS
EXCLUSIONARY RULE, THIS COURT INDICATED THAT SUCH SHOULD NOT BE DONE
UNTIL THE STATES HAD "ADEQUATE OPPORTUNITY TO ADOPT OR REJECT THE WEEKS
RULE."  IRVINE V. CALIFORNIA, SUPRA, AT 134.  THERE AGAIN IT WAS SAID: 

"NEVER UNTIL JUNE OF 1949 DID THIS COURT HOLD THE BASIC SEARCH-AND
SEIZURE PROHIBITION IN ANY WAY APPLICABLE TO THE STATES UNDER THE
FOURTEENTH AMENDMENT."  IBID. 

AND ONLY LAST TERM, AFTER AGAIN CAREFULLY RE-EXAMINING THE WOLF
DOCTRINE IN ELKINS V. UNITED STATES, SUPRA, THE COURT POINTED OUT THAT
"THE CONTROLLING PRINCIPLES" AS TO SEARCH AND SEIZURE AND THE PROBLEM
OF ADMISSIBILITY "SEEMED CLEAR" (AT P. 212) UNTIL THE ANNOUNCEMENT IN
WOLF "THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT
ITSELF REQUIRE STATE COURTS TO ADOPT THE EXCLUSIONARY RULE" OF THE
WEEKS CASE.  AT P. 213.  AT THE SAME TIME, THE COURT POINTED OUT, "THE
UNDERLYING CONSTITUTIONAL DOCTRINE WHICH WOLF ESTABLISHED  ...  THAT
THE FEDERAL CONSTITUTION  ... PROHIBITS UNREASONABLE SEARCHES AND
SEIZURES BY STATE OFFICERS" HAD UNDERMINED THE "FOUNDATION UPON WHICH
THE ADMISSIBILITY OF STATE-SEIZED EVIDENCE IN A FEDERAL TRIAL
ORIGINALLY RESTED  ...  ."  IBID.  THE COURT CONCLUDED THAT IT WAS
THEREFORE OBLIGED TO HOLD, ALTHOUGH IT CHOSE THE NARROWER GROUND ON
WHICH TO DO SO, THAT ALL EVIDENCE OBTAINED BY AN UNCONSTITUTIONAL
SEARCH AND SEIZURE WAS INADMISSIBLE IN A FEDERAL COURT REGARDLESS OF
ITS SOURCE.  TODAY WE ONCE AGAIN EXAMINE WOLF'S CONSTITUTIONAL
DOCUMENTATION OF THE RIGHT TO PRIVACY FREE FROM UNREASONABLE STATE
INTRUSION, AND, AFTER ITS DOZEN YEARS ON OUR BOOKS, ARE LED BY IT TO
CLOSE THE ONLY COURTROOM DOOR REMAINING OPEN TO EVIDENCE SECURED BY
OFFICIAL LAWLESSNESS IN FLAGRANT ABUSE OF THAT BASIC RIGHT, RESERVED TO
ALL PERSONS AS A SPECIFIC GUARANTEE AGAINST THAT VERY SAME UNLAWFUL
CONDUCT.  WE HOLD THAT ALL EVIDENCE OBTAINED BY SEARCHES AND SEIZURES
IN VIOLATION OF THE CONSTITUTION IS, BY THAT SAME AUTHORITY,
INADMISSIBLE IN A STATE COURT. 

                                            IV. 

SINCE THE FOURTH AMENDMENT'S RIGHT OF PRIVACY HAS BEEN DECLARED
ENFORCEABLE AGAINST THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH, IT IS ENFORCEABLE AGAINST THEM BY THE SAME SANCTION OF
EXCLUSION AS IS USED AGAINST THE FEDERAL GOVERNMENT.  WERE IT
OTHERWISE, THEN JUST AS WITHOUT THE WEEKS RULE THE ASSURANCE AGAINST
UNREASONABLE FEDERAL SEARCHES AND SEIZURES WOULD BE "A FORM OF WORDS,"
VALUELESS AND UNDESERVING OF MENTION IN A PERPETUAL CHARTER OF
INESTIMABLE HUMAN LIBERTIES, SO TOO, WITHOUT THAT RULE THE FREEDOM FROM
STATE INVASIONS OF PRIVACY WOULD BE SO EPHEMERAL AND SO NEATLY SEVERED
FROM ITS CONCEPTUAL NEXUS WITH THE FREEDOM FROM ALL BRUTISH MEANS OF
COERCING EVIDENCE AS NOT TO MERIT THIS COURT'S HIGH REGARD AS A FREEDOM
"IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY."  AT THE TIME THAT THE
COURT HELD IN WOLF THAT THE AMENDMENT WAS APPLICABLE TO THE STATES
THROUGH THE DUE PROCESS CLAUSE, THE CASES OF THIS COURT, AS WE HAVE
SEEN, HAD STEADFASTLY HELD THAT AS TO FEDERAL OFFICERS THE FOURTH
AMENDMENT INCLUDED THE EXCLUSION OF THE EVIDENCE SEIZED IN VIOLATION OF
ITS PROVISIONS.  EVEN WOLF "STOUTLY ADHERED" TO THAT PROPOSITION.  THE
RIGHT TO PRIVACY, WHEN CONCEDED OPERATIVELY ENFORCEABLE AGAINST THE
STATES, WAS NOT SUSCEPTIBLE OF DESTRUCTION BY AVULSION OF THE SANCTION
UPON WHICH ITS PROTECTION AND ENJOYMENT HAD ALWAYS BEEN DEEMED
DEPENDENT UNDER THE BOYD, WEEKS AND SILVERTHORNE CASES.  THEREFORE, IN
EXTENDING THE SUBSTANTIVE PROTECTIONS OF DUE PROCESS TO ALL
CONSTITUTIONALLY UNREASONABLE SEARCHES - STATE OR FEDERAL - IT WAS
LOGICALLY AND CONSTITUTIONALLY NECESSARY THAT THE EXCLUSION DOCTRINE -
AN ESSENTIAL PART OF THE RIGHT TO PRIVACY - BE ALSO INSISTED UPON AS AN
ESSENTIAL INGREDIENT OF THE RIGHT NEWLY RECOGNIZED BY THE WOLF CASE. 
IN SHORT, THE ADMISSION OF THE NEW CONSTITUTIONAL RIGHT BY WOLF COULD
NOT CONSISTENTLY TOLERATE DENIAL OF ITS MOST IMPORTANT CONSTITUTIONAL
PRIVILEGE, NAMELY, THE EXCLUSION OF THE EVIDENCE WHICH AN ACCUSED HAD
BEEN FORCED TO GIVE BY REASON OF THE UNLAWFUL SEIZURE.  TO HOLD
OTHERWISE IS TO GRANT THE RIGHT BUT IN REALITY TO WITHHOLD ITS
PRIVILEGE AND ENJOYMENT.  ONLY LAST YEAR THE COURT ITSELF RECOGNIZED
THAT THE PURPOSE OF THE EXCLUSIONARY RULE "IS TO DETER - TO COMPEL
RESPECT FOR THE CONSTITUTIONAL GUARANTY IN THE ONLY EFFECTIVELY
AVAILABLE WAY - BY REMOVING THE INCENTIVE TO DISREGARD IT."  ELKINS V.
UNITED STATES, SUPRA, AT 217. 

INDEED, WE ARE AWARE OF NO RESTRAINT, SIMILAR TO THAT REJECTED TODAY,
CONDITIONING THE ENFORCEMENT OF ANY OTHER BASIC CONSTITUTIONAL RIGHT. 
THE RIGHT TO PRIVACY, NO LESS IMPORTANT THAN ANY OTHER RIGHT CAREFULLY
AND PARTICULARLY RESERVED TO THE PEOPLE, WOULD STAND IN MARKED CONTRAST
TO ALL OTHER RIGHTS DECLARED AS "BASIC TO A FREE SOCIETY."  WOLF V.
COLORADO, SUPRA, AT 27.  THIS COURT HAS NOT HESITATED TO ENFORCE AS
STRICTLY AGAINST THE STATES AS IT DOES AGAINST THE FEDERAL GOVERNMENT
THE RIGHTS OF FREE SPEECH AND OF A FREE PRESS, THE RIGHTS TO NOTICE AND
TO A FAIR, PUBLIC TRIAL, INCLUDING, AS IT DOES, THE RIGHT NOT TO BE
CONVICTED BY USE OF A COERCED CONFESSION, HOWEVER LOGICALLY RELEVANT IT
BE, AND WITHOUT REGARD TO ITS RELIABILITY.  ROGERS V. RICHMOND, 365
U.S. 534 (1961).  AND NOTHING COULD BE MORE CERTAIN THAN THAT WHEN A
COERCED CONFESSION IS INVOLVED, "THE RELEVANT RULES OF EVIDENCE" ARE
OVERRIDDEN WITHOUT REGARD TO "THE INCIDENCE OF SUCH CONDUCT BY THE
POLICE," SLIGHT OR FREQUENT.  WHY SHOULD NOT THE SAME RULE APPLY TO
WHAT IS TANTAMOUNT TO COERCED TESTIMONY BY WAY OF UNCONSTITUTIONAL
SEIZURE OF GOODS, PAPERS, EFFECTS, DOCUMENTS, ETC.?  WE FIND THAT, AS
TO THE FEDERAL GOVERNMENT, THE FOURTH AND FIFTH AMENDMENTS AND, AS TO
THE STATES, THE FREEDOM FROM UNCONSCIONABLE INVASIONS OF PRIVACY AND
THE FREEDOM FROM CONVICTIONS BASED UPON COERCED CONFESSIONS DO ENJOY AN
"INTIMATE RELATION" (FN8) IN THEIR PERPETUATION OF "PRINCIPLES OF
HUMANITY AND CIVIL LIBERTY SECURED  ... ONLY AFTER YEARS OF STRUGGLE,"
BRAM V. UNITED STATES, 168 U.S. 532, 543-544 (1897).  THEY EXPRESS
"SUPPLEMENTING PHASES OF THE SAME CONSTITUTIONAL PURPOSE - TO MAINTAIN
INVIOLATE LARGE AREAS OF PERSONAL PRIVACY."  FELDMAN V. UNITED STATES,
322 U.S. 487, 489-490 (1944).   THE PHILOSOPHY OF EACH AMENDMENT AND OF
EACH FREEDOM IS COMPLEMENTARY TO, ALTHOUGH NOT DEPENDENT UPON, THAT OF
THE OTHER IN ITS SPHERE OF INFLUENCE - THE VERY LEAST THAT TOGETHER
THEY ASSURE IN EITHER SPHERE IS THAT NO MAN IS TO BE CONVICTED ON
UNCONSTITUTIONAL EVIDENCE.  CF. ROCHIN V. CALIFORNIA, 342 U.S. 165, 173
(1952). 

               V. 

MOREOVER, OUR HOLDING THAT THE EXCLUSIONARY RULE IS AN ESSENTIAL PART
OF BOTH THE FOURTH AND FOURTEENTH AMENDMENTS IS NOT ONLY THE LOGICAL
DICTATE OF PRIOR CASES, BUT IT ALSO MAKES VERY GOOD SENSE.  THERE IS NO
WAR BETWEEN THE CONSTITUTION AND COMMON SENSE.  PRESENTLY, A FEDERAL
PROSECUTOR MAY MAKE NO USE OF EVIDENCE ILLEGALLY SEIZED, BUT A STATE'S
ATTORNEY ACROSS THE STREET MAY, ALTHOUGH HE SUPPOSEDLY IS OPERATING
UNDER THE ENFORCEABLE PROHIBITIONS OF THE SAME AMENDMENT.  THUS THE
STATE, BY ADMITTING EVIDENCE UNLAWFULLY SEIZED, SERVED TO ENCOURAGE
DISOBEDIENCE TO THE FEDERAL CONSTITUTION WHICH IT IS BOUND TO UPHOLD. 
MOREOVER, AS WAS SAID IN ELKINS, "THE VERY ESSENCE OF A HEALTHY
FEDERALISM DEPENDS UPON THE AVOIDANCE OF NEEDLESS CONFLICT BETWEEN
STATE AND FEDERAL COURTS."  364 U.S., AT 221.  SUCH A CONFLICT,
HEREAFTER NEEDLESS, AROSE THIS VERY TERM, IN WILSON V. SCHNETTLER, 365
U.S. 381 (1961), IN WHICH, AND IN SPITE OF THE PROMISE MADE BY REA, WE
GAVE FULL RECOGNITION TO OUR PRACTICE IN THIS REGARD BY REFUSING TO
RESTRAIN A FEDERAL OFFICER FROM TESTIFYING IN A STATE COURT AS TO
EVIDENCE UNCONSTITUTIONALLY SEIZED BY HIM IN THE PERFORMANCE OF HIS
DUTIES.  YET THE DOUBLE STANDARD RECOGNIZED UNTIL TODAY HARDLY PUT SUCH
A THESIS INTO PRACTICE.  IN NONEXCLUSIONARY STATES, FEDERAL OFFICERS,
BEING HUMAN, WERE BY IT INVITED TO AND DID, AS OUR CASES INDICATE, STEP
ACROSS THE STREET TO THE STATE'S ATTORNEY WITH THEIR UNCONSTITUTIONALLY
SEIZED EVIDENCE.  PROSECUTION ON THE BASIS OF THAT EVIDENCE WAS THEN
HAD IN A STATE COURT IN UTTER DISREGARD OF THE ENFORCEABLE FOURTH
AMENDMENT.  IF THE FRUITS OF AN UNCONSTITUTIONAL SEARCH HAD BEEN
INADMISSIBLE IN BOTH STATE AND FEDERAL COURTS, THIS INDUCEMENT TO
EVASION WOULD HAVE BEEN SOONER ELIMINATED.  THERE WOULD BE NO NEED TO
RECONCILE SUCH CASES AS REA AND SCHNETTLER, EACH POINTING UP THE
HAZARDOUS UNCERTAINTIES OF OUR HERETOFORE AMBIVALENT APPRAOCH. 

FEDERAL-STATE COOPERATION IN THE SOLUTION OF CRIME UNDER
CONSTITUTIONAL STANDARDS WILL BE PROMOTED, IF ONLY BY RECOGNITION OF
THEIR NOW MUTUAL OBLIGATION TO RESPECT THE SAME FUNDAMENTAL CRITERIA IN
THEIR APPROACHES.  "HOWEVER MUCH IN A PARTICULAR CASE INSISTENCE UPON
SUCH RULES MAY APPEAR AS A TECHNICALITY THAT INURES TO THE BENEFIT OF A
GUILTY PERSON, THE HISTORY OF THE CRIMINAL LAW PROVES THAT TOLERANCE OF
SHORTCUT METHODS IN LAW ENFORCEMENT IMPAIRS ITS ENDURING
EFFECTIVENESS."  MILLER V. UNITED STATES, 357 U.S. 301, 313 (1958). 
DENYING SHORTCUTS TO ONLY ONE OF TWO COOPERATING LAW ENFORCEMENT
AGENCIES TENDS NATURALLY TO BREED LEGITIMATE SUSPICION OF "WORKING
ARRANGEMENTS" WHOSE RESULTS ARE EQUALLY TAINTED.  BYARS V. UNITED
STATES, 273 U.S. 28 (1927); LUSTIG V. UNITED STATES, 338 U.S. 74
(1949). 

THERE ARE THOSE WHO SAY, AS DID JUSTICE (THEN JUDGE) CARDOZO, THAT
UNDER OUR CONSTITUTIONAL EXCLUSIONARY DOCTRINE "THE CRIMINAL IS TO GO
FREE BECAUSE THE CONSTABLE HAS BLUNDERED."  PEOPLE V. DEFORE, 242 N.Y.,
AT 21, 150 N.E., AT 587.  IN SOME CASES THIS WILL UNDOUBTEDLY BE THE
RESULT.  (FN9)  BUT, AS WAS SAID IN ELKINS, "THERE IS ANOTHER
CONSIDERATION - THE IMPERATIVE OF JUDICIAL INTEGRITY."  364 U.S., AT
222.  THE CRIMINAL GOES FREE, IF HE MUST, BUT IT IS THE LAW THAT SETS
HIM FREE.  NOTHING CAN DESTROY A GOVERNMENT MORE QUICKLY THAN ITS
FAILURE TO OBSERVE ITS OWN LAWS, OR WORSE, ITS DISREGARD OF THE CHARTER
OF ITS OWN EXISTENCE.  AS MR. JUSTICE BRANDEIS, DISSENTING, SAID IN
OLMSTEAD V. UNITED STATES, 277 U.S. 438, 485 (1928):  "OUR GOVERNMENT
IS THE POTENT, THE OMNIPRESENT TEACHER.  FOR GOOD OR FOR ILL, IT
TEACHES THE WHOLE PEOPLE BY ITS EXAMPLE  ...  IF THE GOVERNMENT BECOMES
A LAWBREAKER, IT BREEDS CONTEMPT FOR LAW; IT INVITES EVERY MAN TO
BECOME A LAW UNTO HIMSELF; IT INVITES ANARCHY."  NOR CAN IT LIGHTLY BE
ASSUMED THAT, AS A PRACTICAL MATTER, ADOPTION OF THE EXCLUSIONARY RULE
FETTERS LAW ENFORCEMENT.  ONLY LAST YEAR THIS COURT EXPRESSLY
CONSIDERED THAT CONTENTION AND FOUND THAT "PRAGMATIC EVIDENCE OF A
SORT" TO THE CONTRARY WAS NOT WANTING.  ELKINS V. UNITED STATES, SUPRA,
AT 218.  THE COURT NOTED THAT: 

"THE FEDERAL COURTS THEMSELVES HAVE OPERATED UNDER THE EXCLUSIONARY
RULE OF WEEKS FOR ALMOST HALF A CENTURY; YET IT HAS NOT BEEN SUGGESTED
EITHER THAT THE FEDERAL BUREAU OF INVESTIGATION (FN10) HAS THEREBY BEEN
RENDERED INEFFECTIVE, OR THAT THE ADMINISTRATION OF CRIMINAL JUSTICE IN
THE FEDERAL COURTS HAS THEREBY BEEN DISRUPTED.  MOREOVER, THE
EXPERIENCE OF THE STATES IS IMPRESSIVE  ...  . THE MOVEMENT TOWARDS THE
RULE OF EXCLUSION HAS BEEN HALTING BUT SEEMINGLY INEXORABLE."  ID., AT
218-219.    THE IGNOBLE SHORTCUT TO CONVICTION LEFT OPEN TO THE STATE
TENDS TO DESTROY THE ENTIRE SYSTEM OF CONSTITUTIONAL RESTRAINTS ON
WHICH THE LIBERTIES OF THE PEOPLE REST.  (FN11)  HAVING ONCE RECOGNIZED
THAT THE RIGHT TO PRIVACY EMBODIED IN THE FOURTH AMENDMENT IS
ENFORCEABLE AGAINST THE STATES, AND THAT THE RIGHT TO BE SECURE AGAINST
RUDE INVASIONS OF PRIVACY BY STATE OFFICERS IS, THEREFORE,
CONSTITUTIONAL IN ORIGIN, WE CAN NO LONGER PERMIT THAT RIGHT TO REMAIN
AN EMPTY PROMISE.  BECAUSE IT IS ENFORCEABLE IN THE SAME MANNER AND TO
LIKE EFFECT AS OTHER BASIC RIGHTS SECURED BY THE DUE PROCESS CLAUSE, WE
CAN NO LONGER PERMIT IT TO BE REVOCABLE AT THE WHIM OF ANY POLICE
OFFICER WHO, IN THE NAME OF LAW ENFORCEMENT ITSELF, CHOOSES TO SUSPEND
ITS ENJOYMENT.  OUR DECISION, FOUNDED ON REASON AND TRUTH, GIVES TO THE
INDIVIDUAL NO MORE THAN THAT WHICH THE CONSTITUTION GUARANTEES HIM, TO
THE POLICE OFFICER NO LESS THAN THAT TO WHICH HONEST LAW ENFORCEMENT IS
ENTITLED, AND, TO THE COURTS, THAT JUDICIAL INTEGRITY SO NECESSARY IN
THE TRUE ADMINISTRATION OF JUSTICE. 

THE JUDGMENT OF THE SUPREME COURT OF OHIO IS REVERSED AND THE CAUSE
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  THE STATUTE PROVIDES IN PERTINENT PART THAT: 

"NO PERSON SHALL KNOWINGLY  ...  HAVE IN HIS POSSESSION OR UNDER HIS
CONTROL AN OBSCENE, LEWD, OR LASCIVIOUS BOOK OR  ...  PICTURE  ...  . 

"WHOEVER VIOALTES THIS SECTION SHALL BE FINED NOT LESS THAN TWO
HUNDRED NOR MORE THAN TWO THOUSAND DOLLARS OR IMPRISONED NOT LESS THAN
ONE NOR MORE THAN SEVEN YEARS, OR BOTH." 

FN2  A POLICE OFFICER TESTIFIED THAT "WE DID PRY THE SCREEN DOOR TO
GAIN ENTRANCE"; THE ATTORNEY ON THE SCENE TESTIFIED THAT A POLICEMAN
"TRIED  ...  TO KICK IN THE DOOR" AND THEN "BROKE THE GLASS IN THE DOOR
AND SOMEBODY REACHED IN AND OPENED THE DOOR AND LET THEM IN"; THE
APPELLANT TESTIFIED THAT "THE BACK DOOR WAS BROKEN." 

FN3  OTHER ISSUES HAVE BEEN RAISED ON THIS APPEAL BUT, IN THE VIEW WE
HAVE TAKEN OF THE CASE, THEY NEED NOT BE DECIDED.  ALTHOUGH APPELLANT
CHOSE TO URGE WHAT MAY HAVE APPEARED TO BE THE SURER GROUND FOR
FAVORABLE DISPOSITION AND DID NOT INSIST THAT WOLF BE OVERRULED, THE
AMICUS CURIAE, WHO WAS ALSO PERMITTED TO PARTICIPATE IN THE ORAL
ARGUMENT, DID URGE THE COURT TO OVERRULE WOLF. 

FN4  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

FN5  THE CLOSE CONNECTION BETWEEN THE CONCEPTS LATER EMBODIED IN
THESE TWO AMENDMENTS HAD BEEN NOTED AT LEAST AS EARLY AS 1765 BY LORD
CAMDEN, ON WHOSE OPINION IN ENTICK V. CARRINGTON, 19 HOWELL'S STATE
TRIALS 1029, THE BOYD COURT DREW HEAVILY.  LORD CAMDEN HAD NOTED, AT
1073: 

"IT IS VERY CERTAIN, THAT THE LAW OBLIGETH NO MAN TO ACCUSE HIMSELF;
BECAUSE THE NECESSARY MEANS OF COMPELLING SELF-ACCUSATION, FALLING UPON
THE INNOCENT AS WELL AS THE GUILTY, WOULD BE BOTH CRUEL AND UNJUST; AND
IT SHOULD SEEM, THAT SEARCH FOR EVIDENCE IS DISALLOWED UPON THE SAME
PRINCIPLE.  THERE TOO THE INNOCENT WOULD BE CONFOUNDED WITH THE
GUILTY." 

FN6  SEE, HOWEVER, NATIONAL SAFE DEPOSIT CO. V. STEAD, 232 U.S. 58
(1914), AND ADAMS V. NEW YORK, 192 U.S. 585 (1904). 

FN7  LESS THAN HALF OF THE STATES HAVE ANY CRIMINAL PROVISIONS
RELATING DIRECTLY TO UNREASONABLE SEARCHES AND SEIZURES.  THE PUNITIVE
SANCTIONS OF THE 23 STATES ATTEMPTING TO CONTROL SUCH INVASIONS OF THE
RIGHT OF PRIVACY MAY BE CLASSIFIED AS FOLLOWS: 

CRIMINAL LIABILITY OF AFFIANT FOR MALICIOUS PROCUREMENT OF SEARCH
WARRANT.  - ALA. CODE, 1958, TIT. 15, SEC. 99; ALASKA COMP. LAWS ANN.,
1949, SEC. 66-7-15; ARIZ. REV. STAT. ANN., 1956, SEC. 13-1454; CAL.
PEN.  CODE SEC. 170; FLA. STAT., 1959, SEC. 933.16; GA. CODE ANN.,
1953, SEC. 27-301; IDAHO CODE ANN., 1948, SEC. 18-709; IOWA CODE ANN.,
1950, SEC. 751.38; MINN. STAT. ANN., 1947, SEC. 613.54; MONT. REV.
CODES ANN., 1947, SEC.  94-35-122; NEV. REV. STAT. SECS. 199.130,
199.140; N.J. STAT. ANN., 1940, SEC. 33:1-64; N.Y.  PEN.  LAW SEC.
1786, N.Y. CODE CRIM. PROC. SEC. 811; N.C. GEN. STAT., 1953, SEC. 15-27
(APPLIES TO "OFFICERS" ONLY); N.D. CENTURY CODE ANN., 1960, SECS. 12-17
08, 29-29-18; OKLA. STAT., 1951, TIT. 21, SEC. 585, TIT. 22, SEC. 1239;
ORE.  REV.  STAT. SEC. 141.990; S.D. CODE, 1939 (SUPP.  1960), SEC.
34.9904; UTAH CODE ANN., 1953, SEC. 77-54-21. 

CRIMINAL LIABILITY OF MAGISTRATE ISSUING WARRANT WITHOUT SUPPORTING
AFFIDAVIT.  - N.C. GEN.  STAT., 1953, SEC. 15-27; VA. CODE ANN., 1960
REPLACEMENT VOLUME, SEC. 19.1-89. 

CRIMINAL LIABILITY OF OFFICER WILLFULLY EXCEEDING AUTHORITY OF SEARCH
WARRANT.  - FLA. STAT.  ANN., 1944, SEC. 933.17; IOWA CODE ANN., 1950,
SEC. 751.39; MINN. STAT. ANN., 1947, SEC.  613.54; NEV. REV. STAT. SEC.
199.450; N.Y. PEN.  LAW SEC. 1847, N.Y. CODE CRIM. PROC. SEC. 812; N.D.
CENTURY CODE ANN., 1960, SECS. 12-17-07, 29-29-19; OKLA. STAT., 1951,
TIT. 21, SEC. 536, TIT. 22, SEC. 1240; S.D. CODE, 1939 (SUPP. 1960),
SEC. 34.9905; TENN. CODE ANN., 1955, SEC. 40-510; UTAH CODE ANN., 1953,
SEC. 77-54-22. 

CRIMINAL LIABILITY OF OFFICER FOR SEARCH WITH INVALID WARRANT OR NO
WARRANT.  - IDAHO CODE ANN., 1948, SEC. 18-703; MINN. STAT. ANN., 1947,
SECS. 613.53, 621.17; MO. ANN. STAT., 1953, SEC. 558.190; MONT. REV.
CODES ANN., 1947, SEC. 94-3506; N.J. STAT. ANN., 1940, SEC. 33:1-65;
N.Y. PEN.  LAW SEC. 1846; N.D. CENTURY CODE ANN., 1960, SEC. 12-17-06;
OKLA. STAT. ANN., 1958, TIT. 21, SEC. 535; UTAH CODE ANN., 1953, SEC.
76-28-52; VA. CODE ANN., 1960 REPLACEMENT VOLUME, SEC. 19.1-88; WASH.
REV. CODE SECS. 10.79.040, 10.79.045. 

FN8  BUT COMPARE WALEY V. JOHNSTON, 316 U.S. 101, 104, AND CHAMBERS
V. FLORIDA, 309 U.S. 227, 236, WITH WEEKS V. UNITED STATES, 232 U.S.
383, AND WOLF V. COLORADO, 338 U.S. 25. 

FN9  AS IS ALWAYS THE CASE, HOWEVER, STATE PROCEDURAL REQUIREMENTS
GOVERNING ASSERTION AND PURSUANCE OF DIRECT AND COLLATERAL
CONSTITUTIONAL CHALLENGES TO CRIMINAL PROSECUTIONS MUST BE RESPECTED. 
WE NOTE, MOREOVER, THAT THE CLASS OF STATE CONVICTIONS POSSIBLY
AFFECTED BY THIS DECISION IS OF RELATIVELY NARROW COMPASS WHEN COMPARED
WITH BURNS V. OHIO, 360 U.S. 252, GRIFFIN V. ILLINOIS, 351 U.S. 12, AND
HERMAN V. CLAUDY, 350 U.S. 116.  IN THOSE CASES THE SAME CONTENTION WAS
URGED AND LATER PROVED UNFOUNDED.  IN ANY CASE, FURTHER DELAY IN
REACHING THE PRESENT RESULT COULD HAVE NO EFFECT OTHER THAN TO COMPOUND
THE DIFFICULTIES. 

FN10  SEE THE REMARKS OF MR. HOOVER, DIRECTOR OF THE FEDERAL BUREAU
OF INVESTIGATION, FBI LAW ENFORCEMENT BULLETIN, SEPTEMBER, 1952, PP. 1
2, QUOTED IN ELKINS V. UNITED STATES, 364 U.S. 206, 218-219, NOTE 8. 

FN11  CF. MARCUS V. SEARCH WARRANT, POST, P. 717. 

MR. JUSTICE BLACK, CONCURRING. 

FOR NEARLY FIFTY YEARS, SINCE THE DECISION OF THIS COURT IN WEEKS V.
UNITED STATES, (FN1) FEDERAL COURTS HAVE REFUSED TO PERMIT THE
INTRODUCTION INTO EVIDENCE AGAINST AN ACCUSED OF HIS PAPERS AND EFFECTS
OBTAINED BY "UNREASONABLE SEARCHES AND SEIZURES" IN VIOLATION OF THE
FOURTH AMENDMENT.  IN WOLF V. COLORADO, DECIDED IN 1948, HOWEVER, THIS
COURT HELD THAT "IN A PROSECUTION IN A STATE COURT FOR A STATE CRIME
THE FOURTEENTH AMENDMENT DOES NOT FORBID THE ADMISSION OF EVIDENCE
OBTAINED BY AN UNREASONABLE SEARCH AND SEIZURE."  (FN2)  I CONCURRED IN
THAT HOLDING ON THESE GROUNDS: 

"FOR REASONS STATED IN MY DISSENTING OPINION IN ADAMSON V.
CALIFORNIA, 332 U.S. 46, 68, I AGREE WITH THE CONCLUSION OF THE COURT
THAT THE FOURTH AMENDMENT'S PROHIBITION OF 'UNREASONABLE SEARCHES AND
SEIZURES' IS ENFORCEABLE AGAINST THE STATES.  CONSEQUENTLY, I SHOULD BE
FOR REVERSAL OF THIS CASE IF I THOUGHT THE FOURTH AMENDMENT NOT ONLY
PROHIBITED 'UNREASONABLE SEARCHES AND SEIZURES,' BUT ALSO, OF ITSELF,
BARRED THE USE OF EVIDENCE SO UNLAWFULLY OBTAINED.  BUT I AGREE WITH
WHAT APPEARS TO BE A PLAIN IMPLICATION OF THE COURT'S OPINION THAT THE
FEDERAL EXCLUSIONARY RULE IS NOT A COMMAND OF THE FOURTH AMENDMENT BUT
IS A JUDICIALLY CREATED RULE OF EVIDENCE WHICH CONGRESS MIGHT NEGATE." 
(FN3) 

I AM STILL NOT PERSUADED THAT THE FOURTH AMENDMENT, STANDING ALONE,
WOULD BE ENOUGH TO BAR THE INTRODUCTION INTO EVIDENCE AGAINST AN
ACCUSED OF PAPERS AND EFFECTS SEIZED FROM HIM IN VIOLATION OF ITS
COMMANDS.  FOR THE FOURTH AMENDMENT DOES NOT ITSELF CONTAIN ANY
PROVISION EXPRESSLY PRECLUDING THE USE OF SUCH EVIDENCE, AND I AM
EXTREMELY DOUBTFUL THAT SUCH A PROVISION COULD PROPERLY BE INFERRED
FROM NOTHING MORE THAN THE BASIC COMMAND AGAINST UNREASONABLE SEARCHES
AND SEIZURES.  REFLECTION ON THE PROBLEM, HOWEVER, IN THE LIGHT OF
CASES COMING BEFORE THE COURT SINCE WOLF, HAS LED ME TO CONCLUDE THAT
WHEN THE FOURTH AMENDMENT'S BAN AGAINST UNREASONABLE SEARCHES AND
SEIZURES IS CONSIDERED TOGETHER WITH THE FIFTH AMENDMENT'S BAN AGAINST
COMPELLED SELF-INCRIMINATION, A CONSTITUTIONAL BASIS EMERGES WHICH NOT
ONLY JUSTIFIES BUT ACTUALLY REQUIRES THE EXCLUSIONARY RULE. 

THE CLOSE INTERRELATIONSHIP BETWEEN THE FOURTH AND FIFTH AMENDMENTS,
AS THEY APPLY TO THIS PROBLEM, (FN4) HAS LONG BEEN RECOGNIZED AND,
INDEED, WAS EXPRESSLY MADE THE GROUND FOR THIS COURT'S HOLDING IN BOYD
V. UNITED STATES.  (FN5)  THERE THE COURT FULLY DISCUSSED THIS
RELATIONSHIP AND DECLARED ITSELF "UNABLE TO PERCEIVE THAT THE SEIZURE
OF A MAN'S PRIVATE BOOKS AND PAPERS TO BE USED IN EVIDENCE AGAINST HIM
IS SUBSTANTIALLY DIFFERENT FROM COMPELLING HIM TO BE A WITNESS AGAINST
HIMSELF."  (FN8)  IT WAS UPON THIS GROUND THAT MR. JUSTICE RUTLEDGE
LARGELY RELIED IN HIS DISSENTING OPINION IN THE WOLF CASE.  (FN7)  AND,
ALTHOUGH I REJECTED THE ARGUMENT AT THAT TIME, ITS FORCE HAS, FOR ME AT
LEAST, BECOME COMPELLING WITH THE MORE THOROUGH UNDERSTANDING OF THE
PROBLEM BROUGHT ON BY RECENT CASES.  IN THE FINAL ANALYSIS, IT SEEMS TO
ME THAT THE BOYD DOCTRINE, THOUGH PERHAPS NOT REQUIRED BY THE EXPRESS
LANGUAGE OF THE CONSTITUTION STRICTLY CONSTRUED, IS AMPLY JUSTIFIED
FROM AN HISTORICAL STANDPOINT, SOUNDLY BASED IN REASON, AND ENTIRELY
CONSISTENT WITH WHAT I REGARD TO BE THE PROPER APPROACH TO
INTERPRETATION OF OUR BILL OF RIGHTS - AN APPROACH WELL SET OUT BY MR.
JUSTICE BRADLEY IN THE BOYD CASE: 

"CONSTITUTIONAL PROVISIONS FOR THE SECURITY OF PERSON AND PROPERTY
SHOULD BE LIBERALLY CONSTRUED.  A CLOSE AND LITERAL CONSTRUCTION
DEPRIVES THEM OF HALF THEIR EFFICACY, AND LEADS TO GRADUAL DEPRECIATION
OF THE RIGHT, AS IF IT CONSISTED MORE IN SOUND THAN IN SUBSTANCE.  IT
IS THE DUTY OF THE COURTS TO BE WATCHFUL FOR THE CONSTITUTIONAL RIGHTS
OF THE CITIZEN, AND AGAINST ANY STEALTHY ENCROACHMENTS THEREON." 
(FN8) 

THE CASE OF ROCHIN V. CALIFORNIA, (FN9) WHICH WE DECIDED THREE YEARS
AFTER THE WOLF CASE, AUTHENTICATED, I THINK, THE SOUNDNESS OF MR.
JUSTICE BRADLEY'S AND MR. JUSTICE RUTLEDGE'S RELIANCE UPON THE
INTERRELATIONSHIP BETWEEN THE FOURTH AND FIFTH AMENDMENTS AS REQUIRING
THE EXCLUSION OF UNCONSTITUTIONALLY SEIZED EVIDENCE.  IN THE ROCHIN
CASE, THREE POLICE OFFICERS, ACTING WITH NEITHER A JUDICIAL WARRANT NOR
PROBABLE CAUSE, ENTERED ROCHIN'S HOME FOR THE PURPOSE OF CONDUCTING A
SEARCH AND BROKE DOWN THE DOOR TO A BEDROOM OCCUPIED BY ROCHIN AND HIS
WIFE.  UPON THEIR ENTRY INTO THE ROOM, THE OFFICERS SAW ROCHIN PICK UP
AND SWALLOW TWO SMALL CAPSULES.  THEY IMMEDIATELY SEIZED HIM AND TOOK
HIM IN HANDCUFFS TO A HOSPITAL WHERE THE CAPSULES WERE RECOVERED BY USE
OF A STOMACH PUMP.  INVESTIGATION SHOWED THAT THE CAPSULES CONTAINED
MORPHINE AND EVIDENCE OF THAT FACT WAS MADE THE BASIS OF HIS CONVICTION
OF A CRIME IN A STATE COURT. 

WHEN THE QUESTION OF THE VALIDITY OF THAT CONVICTION WAS BROUGHT
HERE, WE WERE PRESENTED WITH AN ALMOST PERFECT EXAMPLE OF THE
INTERRELATIONSHIP BETWEEN THE FOURTH AND FIFTH AMENDMENTS.  INDEED,
EVERY MEMBER OF THIS COURT WHO PARTICIPATED IN THE DECISION OF THAT
CASE RECOGNIZED THIS INTERRELATIONSHIP AND RELIED ON IT, TO SOME EXTENT
AT LEAST, AS JUSTIFYING REVERSAL OF ROCHIN'S CONVICTION.  THE MAJORITY,
THOUGH CAREFUL NOT TO MENTION THE FIFTH AMENDMENT'S PROVISION THAT "NO
PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS
AGAINST HIMSELF," SHOWED AT LEAST THAT IT WAS NOT UNAWARE THAT SUCH A
PROVISION EXISTS, STATING:  "COERCED CONFESSIONS OFFEND THE COMMUNITY'S
SENSE OF FAIR PLAY AND DECENCY  ...  .  IT WOULD BE A STULTIFICATION OF
THE RESPONSIBILITY WHICH THE COURSE OF CONSTITUTIONAL HISTORY HAS CAST
UPON THIS COURT TO HOLD THAT IN ORDER TO CONVICT A MAN THE POLICE
CANNOT EXTRACT BY FORCE WHAT IS IN HIS MIND BUT CAN EXTRACT WHAT IS IN
HIS STOMACH."  (FN10)  THE METHODS USED BY THE POLICE THUS WERE,
ACCORDING TO THE MAJORITY, "TOO CLOSE TO THE RACK AND THE SCREW TO
PERMIT OF CONSTITUTIONAL DIFFERENTIATION," (FN11) AND THE CASE WAS
REVERSED ON THE GROUND THAT THESE METHODS HAD VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT IN THAT THE TREATMENT ACCORDED
ROCHIN WAS OF A KIND THAT "SHOCKS THE CONSCIENCE," "OFFENDS 'A SENSE OF
JUSTICE'" AND FAILS TO "RESPECT CERTAIN DECENCIES OF CIVILIZED
CONDUCT."  (FN12) 

I CONCURRED IN THE REVERSAL OF THE ROCHIN CASE, BUT ON THE GROUND
THAT THE FOURTEENTH AMENDMENT MADE THE FIFTH AMENDMENT'S PROVISION
AGAINST SELF-INCRIMINATION APPLICABLE TO THE STATES AND THAT, GIVEN A
BROAD RATHER THAN A NARROW CONSTRUCTION, THAT PROVISION BARRED THE
INTRODUCTION OF THIS "CAPSULE" EVIDENCE JUST AS MUCH AS IT WOULD HAVE
FORBIDDEN THE USE OF WORDS ROCHIN MIGHT HAVE BEEN COERCED TO SPEAK. 
(FN13)  IN REACHING THIS CONCLUSION I CITED AND RELIED ON THE BOYD
CASE, THE CONSTITUTIONAL DOCTRINE OF WHICH WAS, OF COURSE, NECESSARY TO
MY DISPOSITION OF THE CASE.  AT THAT TIME, HOWEVER, THESE VIEWS WERE
VERY DEFINITELY IN THE MINORITY FOR ONLY MR. JUSTICE DOUGLAS AND I
REJECTED THE FLEXIBLE AND UNCERTAIN STANDARDS OF THE "SHOCK-THE
CONSCIENCE TEST" USED IN THE MAJORITY OPINION.  (FN14)    TWO YEARS
AFTER ROCHIN, IN IRVINE V. CALIFORNIA, (FN15) WE WERE AGAIN CALLED UPON
TO CONSIDER THE VALIDITY OF A CONVICTION BASED ON EVIDENCE WHICH HAD
BEEN OBTAINED IN A MANNER CLEARLY UNCONSTITUTIONAL AND ARGUABLY
SHOCKING TO THE CONSCIENCE.  THE FIVE OPINIONS WRITTEN BY THIS COURT IN
THAT CASE DEMONSTRATE THE UTTER CONFUSION AND UNCERTAINTY THAT HAD BEEN
BROUGHT ABOUT BY THE WOLF AND ROCHIN DECISIONS.  IN CONCURRING, MR.
JUSTICE CLARK EMPHASIZED THE UNSATISFACTORY NATURE OF THE COURT'S
"SHOCK-THE-CONSCIENCE TEST," SAYING THAT THIS "TEST" "MAKES FOR SUCH
UNCERTAINTY AND UNPREDICTABILITY THAT IT WOULD BE IMPOSSIBLE TO
FORETELL - OTHER THAN BY GUESSWORK - JUST HOW BRAZEN THE INVASION OF
THE INTIMATE PRIVACIES OF ONE'S HOME MUST BE IN ORDER TO SHOCK ITSELF
INTO THE PROTECTIVE ARMS OF THE CONSTITUTION.  IN TRUTH, THE PRACTICAL
RESULT OF THIS AD HOC APPROACH IS SIMPLY THAT WHEN FIVE JUSTICES ARE
SUFFICIENTLY REVOLTED BY LOCAL POLICE ACTION, A CONVICTION IS
OVERTURNED AND A GUILTY MAN MAY GO FREE."  (FN16) 

ONLY ONE THING EMERGED WITH COMPLETE CLARITY FROM THE IRVINE CASE -
THAT IS THAT SEVEN JUSTICES REJECTED THE "SHOCK-THE-CONSCIENCE"
CONSTITUTIONAL STANDARD ENUNCIATED IN THE WOLF AND ROCHIN CASES.   BUT
EVEN THIS DID NOT LESSEN THE CONFUSION IN THIS AREA OF THE LAW BECAUSE
THE CONTINUED EXISTENCE OF MUTUALLY INCONSISTENT PRECEDENTS TOGETHER
WITH THE COURT'S INABILITY TO SETTLE UPON A MAJORITY OPINION IN THE
IRVINE CASE LEFT THE SITUATION AT LEAST AS UNCERTAIN AS IT HAD BEEN
BEFORE.  (FN17) FINALLY, TODAY, WE CLEAR UP THAT UNCERTAINTY.  AS I
UNDERSTAND THE COURT'S OPINION IN THIS CASE, WE AGAIN REJECT THE
CONFUSING "SHOCK-THE-CONSCIENCE" STANDARD OF THE WOLF AND ROCHIN CASES
AND, INSTEAD, SET ASIDE THIS STATE CONVICTION IN RELIANCE UPON THE
PRECISE, INTELLIGIBLE AND MORE PREDICTABLE CONSTITUTIONAL DOCTRINE
ENUNCIATED IN THE BOYD CASE.  I FULLY AGREE WITH MR. JUSTICE BRADLEY'S
OPINION THAT THE TWO AMENDMENTS UPON WHICH THE BOYD DOCTRINE RESTS ARE
OF VITAL IMPORTANCE IN OUR CONSTITUTIONAL SCHEME OF LIBERTY AND THAT
BOTH ARE ENTITLED TO A LIBERAL RATHER THAN A NIGGARDLY INTERPRETATION. 
THE COURTS OF THE COUNTRY ARE ENTITLED TO KNOW WITH AS MUCH CERTAINTY
AS POSSIBLE WHAT SCOPE THEY COVER.  THE COURT'S OPINION, IN MY
JUDGMENT, DISSIPATES THE DOUBT AND UNCERTAINTY IN THIS FIELD OF
CONSTITUTIONAL LAW AND I AM PERSUADED, FOR THIS AND OTHER REASONS
STATED, TO DEPART FROM MY PRIOR VIEWS, TO ACCEPT THE BOYD DOCTRINE AS
CONTROLLING IN THIS STATE CASE AND TO JOIN THE COURT'S JUDGMENT AND
OPINION WHICH ARE IN ACCORDANCE WITH THAT CONSTITUTIONAL DOCTRINE. 

FN1  232 U.S. 383, DECIDED IN 1914. 

FN2  338 U.S. 25, 33. 

FN3  ID., AT 39-40. 

FN4  THE INTERRELATIONSHIP BETWEEN THE FOURTH AND THE FIFTH
AMENDMENTS IN THIS AREA DOES NOT, OF COURSE, JUSTIFY A NARROWING IN THE
INTERPRETATION OF EITHER OF THESE AMENDMENTS WITH RESPECT TO AREAS IN
WHICH THEY OPERATE SEPARATELY.  SEE FELDMAN V. UNITED STATES, 322 U.S.
487, 502-503 (DISSENTING OPINION); FRANK V. MARYLAND, 359 U.S. 360, 374
384 (DISSENTING OPINION). 

FN5  116 U.S. 616. 

FN6  ID., AT 633. 

FN7  338 U.S., AT 47-48. 

FN8  116 U.S., AT 635.  AS THE COURT POINTS OUT, MR. JUSTICE
BRADLEY'S APPROACH TO INTERPRETATION OF THE BILL OF RIGHTS STEMMED
DIRECTLY FROM THE SPIRIT IN WHICH THAT GREAT CHARTER OF LIBERTY WAS
OFFERED FOR ADOPTION ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES BY
ITS FRAMER, JAMES MADISON:  "IF THEY (THE FIRST TEN AMENDMENTS) ARE
INCORPORATED INTO THE CONSTITUTION, INDEPENDENT TRIBUNALS OF JUSTICE
WILL CONSIDER THEMSELVES IN A PECULIAR MANNER THE GUARDIANS OF THOSE
RIGHTS; THEY WILL BE AN IMPENETRABLE BULWARK AGAINST EVERY ASSUMPTION
OF POWER IN THE LEGISLATIVE OR EXECUTIVE; THEY WILL BE NATURALLY LED TO
RESIST EVERY ENCROACHMENT UPON RIGHTS EXPRESSLY STIPULATED FOR IN THE
CONSTITUTION BY THE DECLARATION OF RIGHTS."  I ANNALS OF CONGRESS 439
(1789). 

FN9  342 U.S. 165. 

FN10  ID., AT 173. 

FN11  ID., AT 172. 

FN12  ID., AT 172, 173. 

FN13  ID., AT 174-177. 

FN14  FOR THE CONCURRING OPINION OF MR. JUSTICE DOUGLAS SEE ID., AT
177-179. 

FN15  347 U.S. 128. 

FN16  ID., AT 138. 

FN17  SEE ALSO UNITED STATES V. RABINOWITZ, 339 U.S. 56, 66-68
(DISSENTING OPINION). 

MR. JUSTICE DOUGLAS, CONCURRING. 

THOUGH I HAVE JOINED THE OPINION OF THE COURT, I ADD A FEW WORDS. 
THIS CRIMINAL PROCEEDING STARTED WITH A LAWLESS SEARCH AND SEIZURE. 
THE POLICE ENTERED A HOME FORCEFULLY, AND SEIZED DOCUMENTS THAT WERE
LATER USED TO CONVICT THE OCCUPANT OF A CRIME. 

SHE LIVED ALONE WITH HER FIFTEEN-YEAR-OLD DAUGHTER IN THE SECOND
FLOOR FLAT OF A DUPLEX IN CLEVELAND.  AT ABOUT 1:30 IN THE AFTERNOON OF
MAY 23, 1957, THREE POLICEMEN ARRIVED AT THIS HOUSE.  THEY RANG THE
BELL, AND THE APPELLANT, APPEARING AT HER WINDOW, ASKED THEM WHAT THEY
WANTED.  ACCORDING TO THEIR LATER TESTIMONY, THE POLICEMEN HAD COME TO
THE HOUSE ON INFORMATION FROM "A CONFIDENTIAL SOURCE THAT THERE WAS A
PERSON HIDING OUT IN THE HOME, WHO WAS WANTED FOR QUESTIONING IN
CONNECTION WITH A RECENT BOMBING."  (FN1)  TO THE APPELLANT'S QUESTION,
HOWEVER, THEY REPLIED ONLY THAT THEY WANTED TO QUESTION HER AND WOULD
NOT STATE THE SUBJECT ABOUT WHICH THEY WANTED TO TALK. 

THE APPELLANT, WHO HAD RETAINED AN ATTORNEY IN CONNECTION WITH A
PENDING CIVIL MATTER, TOLD THE POLICE SHE WOULD CALL HIM TO ASK IF SHE
SHOULD LET THEM IN.  ON HER ATTORNEY'S ADVICE, SHE TOLD THEM SHE WOULD
LET THEM IN ONLY WHEN THEY PRODUCED A VALID SEARCH WARRANT.  FOR THE
NEXT TWO AND A HALF HOURS, THE POLICE LAID SIEGE TO THE HOUSE.  AT FOUR
O'CLOCK, THEIR NUMBER WAS INCREASED TO AT LEAST SEVEN.  APPELLANT'S
LAWYER APPEARED ON THE SCENE; AND ONE OF THE POLICEMEN TOLD HIM THAT
THEY NOW HAD A SEARCH WARRANT, BUT THE OFFICER REFUSED TO SHOW IT.
INSTEAD, GOING TO THE BACK DOOR, THE OFFICER FIRST TRIED TO KICK IT IN
AND, WHEN THAT PROVED UNSUCCESSFUL, HE BROKE THE GLASS IN THE DOOR AND
OPENED IT FROM THE INSIDE. 

THE APPELLANT, WHO WAS ON THE STEPS GOING UP TO HER FLAT, DEMANDED TO
SEE THE SEARCH WARRANT; BUT THE OFFICER REFUSED TO LET HER SEE IT
ALTHOUGH HE WAVED A PAPER IN FRONT OF HER FACE.  SHE GRABBED IT AND
THRUST IT DOWN THE FRONT OF HER DRESS.  THE POLICEMEN SEIZED HER, TOOK
THE PAPER FROM HER, AND HAD HER HANDCUFFED TO ANOTHER OFFICER.  SHE WAS
TAKEN UPSTAIRS, THUS BOUND, AND INTO THE LARGER OF THE TWO BEDROOMS IN
THE APARTMENT; THERE SHE WAS FORCED TO SIT ON THE BED.  MEANWHILE, THE
OFFICERS ENTERED THE HOUSE AND MADE A COMPLETE SEARCH OF THE FOUR ROOMS
OF HER FLAT AND OF THE BASEMENT OF THE HOUSE. 

THE TESTIMONY CONCERNING THE SEARCH IS LARGELY NONCONFLICTING.  THE
APPROACH OF THE OFFICERS; THEIR LONG WAIT OUTSIDE THE HOME, WATCHING
ALL ITS DOORS; THE ARRIVAL OF REINFORCEMENTS ARMED WITH A PAPER; (FN2)
BREAKING INTO THE HOUSE; PUTTING THEIR HANDS ON APPELLANT AND
HANDCUFFING HER; NUMEROUS OFFICERS RANSACKING THROUGH EVERY ROOM AND
PIECE OF FURNITURE, WHILE THE APPELLANT SAT, A PRISONER IN HER OWN
BEDROOM.  THERE IS DIRECT CONFLICT IN THE TESTIMONY, HOWEVER, AS TO
WHERE THE EVIDENCE WHICH IS THE BASIS OF THIS CASE WAS FOUND.  TO
UNDERSTAND THE MEANING OF THAT CONFLICT, ONE MUST UNDERSTAND THAT THIS
CASE IS BASED ON THE KNOWING POSSESSION (FN3) OF FOUR LITTLE PAMPHLETS,
A COUPLE OF PHOTOGRAPHS AND A LITTLE PENCIL DOODLE - ALL OF WHICH ARE
ALLEGED TO BE PORNOGRAPHIC. 

ACCORDING TO THE POLICE OFFICERS WHO PARTICIPATED IN THE SEARCH,
THESE ARTICLES WERE FOUND, SOME IN APPELLANT'S DRESSERS AND SOME IN A
SUITCASE FOUND BY HER BED.  ACCORDING TO APPELLANT, MOST OF THE
ARTICLES WERE FOUND IN A CARDBOARD BOX IN THE BASEMENT; ONE IN THE
SUITCASE BESIDE HER BED.  ALL OF THIS MATERIAL, APPELLANT - AND A
FRIEND OF HERS - SAID WERE ODDS AND ENDS BELONGING TO A RECENT BOARDER,
A MAN WHO HAD LEFT SUDDENLY FOR NEW YORK AND HAD BEEN DETAINED THERE. 
AS THE SUPREME COURT OF OHIO READ THE STATUTE UNDER WHICH APPELLANT IS
CHARGED, SHE IS GUILTY OF THE CRIME WHICHEVER STORY IS TRUE. 

THE OHIO SUPREME COURT SUSTAINED THE CONVICTION EVEN THOUGH IT WAS
BASED ON THE DOCUMENTS OBTAINED IN THE LAWLESS SEARCH.  FOR IN OHIO
EVIDENCE OBTAINED BY AN UNLAWFUL SEARCH AND SEIZURE IS ADMISSIBLE IN A
CRIMINAL PROSECUTION AT LEAST WHERE IT WAS NOT TAKEN FROM THE
"DEFENDANT'S PERSON BY THE USE OF BRUTAL OR OFFENSIVE FORCE AGAINST
DEFENDANT."  STATE V. MAPP, 170 OHIO ST. 427, 166 N.E.2D, AT 388,
SYLLABUS 2; STATE V. LINDWAY, 131 OHIO ST. 166, 2 N.E.2D 490.  THIS
EVIDENCE WOULD HAVE BEEN INADMISSIBLE IN A FEDERAL PROSECUTION.  WEEKS
V. UNITED STATES, 232 U.S. 383; ELKINS V. UNITED STATES, 364 U.S. 206. 
FOR, AS STATED IN THE FORMER DECISION, "THE EFFECT OF THE FOURTH
AMENDMENT IS TO PUT THE COURTS OF THE UNITED STATES AND FEDERAL
OFFICIALS, IN THE EXERCISE OF THEIR POWER AND AUTHORITY, UNDER
LIMITATIONS AND RESTRAINTS  ...  ."  ID., 391-392.  IT WAS THEREFORE
HELD THAT EVIDENCE OBTAINED (WHICH IN THAT CASE WAS DOCUMENTS AND
CORRESPONDENCE) FROM A HOME WITHOUT ANY WARRANT WAS NOT ADMISSIBLE IN A
FEDERAL PROSECUTION. 

WE HELD IN WOLF V. COLORADO, 338 U.S. 25, THAT THE FOURTH AMENDMENT
WAS APPLICABLE TO THE STATES BY REASON OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  BUT A MAJORITY HELD THAT THE EXCLUSIONARY RULE
OF THE WEEKS CASE WAS NOT REQUIRED OF THE STATES, THAT THEY COULD APPLY
SUCH SANCTIONS AS THEY CHOSE.  THAT POSITION HAD THE NECESSARY VOTES TO
CARRY THE DAY.  BUT WITH ALL RESPECT IT WAS NOT THE VOICE OF REASON OR
PRINCIPLE. 

AS STATED IN THE WEEKS CASE, IF EVIDENCE SEIZED IN VIOLATION OF THE
FOURTH AMENDMENT CAN BE USED AGAINST AN ACCUSED, "HIS RIGHT TO BE
SECURE AGAINST SUCH SEARCHES AND SEIZURES IS OF NO VALUE, AND ...
MIGHT AS WELL BE STRICKEN FROM THE CONSTITUTION."  232 U.S., AT 393. 

WHEN WE ALLOWED STATES TO GIVE CONSTITUTIONAL SANCTION TO THE "SHABBY
BUSINESS" OF UNLAWFUL ENTRY INTO A HOME (TO USE AN EXPRESSION OF MR.
JUSTICE MURPHY, WOLF V. COLORADO, AT 46), WE DID INDEED ROB THE FOURTH
AMENDMENT OF MUCH MEANINGFUL FORCE.  THERE ARE, OF COURSE, OTHER
THEORETICAL REMEDIES.  ONE IS DISCIPLINARY ACTION WITHIN THE HIERARCHY
OF THE POLICE SYSTEM, INCLUDING PROSECTUION OF THE POLICE OFFICER FOR A
CRIME.  YET AS MR. JUSTICE MURPHY SAID IN WOLF V. COLORADO, AT 42,
"SELF-SCRUTINY IS A LOFTY IDEAL, BUT ITS EXALTATION REACHES NEW HEIGHTS
IF WE EXPECT A DISTRICT ATTORNEY TO PROSECUTE HIMSELF OR HIS ASSOCIATES
FOR WELL-MEANING VIOLATIONS OF THE SEARCH AND SEIZURE CLAUSE DURING A
RAID THE DISTRICT ATTORNEY OR HIS ASSOCIATES HAVE ORDERED." 

THE ONLY REMAINING REMEDY, IF EXCLUSION OF THE EVIDENCE IS NOT
REQUIRED, IS AN ACTION OF TRESPASS BY THE HOMEOWNER AGAINST THE
OFFENDING OFFICER.  MR. JUSTICE MURPHY SHOWED HOW ONEROUS AND DIFFICULT
IT WOULD BE FOR THE CITIZEN TO MAINTAIN THAT ACTION AND HOW MEAGRE THE
RELIEF EVEN IF THE CITIZEN PREVAILS.  338 U.S. 42-44.  THE TRUTH IS
THAT TRESPASS ACTIONS AGAINST OFFICERS WHO MAKE UNLAWFUL SEARCHES AND
SEIZURES ARE MAINLY ILLUSORY REMEDIES. 

WITHOUT JUDICIAL ACTION MAKING THE EXCLUSIONARY RULE APPLICABLE TO
THE STATES, WOLF V. COLORADO IN PRACTICAL EFFECT REDUCED THE GUARANTEE
AGAINST UNREASONABLE SEARCHES AND SEIZURES TO "A DEAD LETTER," AS MR.
JUSTICE RUTLEDGE SAID IN HIS DISSENT.  SEE 338 U.S., AT 47. 

WOLF V. COLORADO, SUPRA, WAS DECIDED IN 1949.  THE IMMEDIATE RESULT
WAS A STORM OF CONSTITUTIONAL CONTROVERSY WHICH ONLY TODAY FINDS ITS
END.  I BELIEVE THAT THIS IS AN APPROPRIATE CASE IN WHICH TO PUT AN END
TO THE ASYMMETRY WHICH WOLF IMPORTED INTO THE LAW.  SEE STEFANELLI V.
MINARD, 342 U.S. 117; REA V. UNITED STATES, 350 U.S. 214; ELKINS V.
UNITED STATES, SUPRA; MONROE V. PAPE, 365 U.S. 167.  IT IS AN
APPROPRIATE CASE BECAUSE THE FACTS IT PRESENTS SHOW - AS WOULD FEW
OTHER CASES - THE CASUAL ARROGANCE OF THOSE WHO HAVE THE UNTRAMMELLED
POWER TO INVADE ONE'S HOME AND TO SEIZE ONE'S PERSON. 

IT IS ALSO AN APPROPRIATE CASE IN THE NARROWER AND MORE TECHNICAL
SENSE.  THE ISSUES OF THE ILLEGALITY OF THE SEARCH AND THE
ADMISSIBILITY OF THE EVIDENCE HAVE BEEN PRESENTED TO THE STATE COURT
AND WERE DULY RAISED HERE IN ACCORDANCE WITH THE APPLICABLE RULE OF
PRACTICE.  (FN4)  THE QUESTION WAS RAISED IN THE NOTICE OF APPEAL, THE
JURISDICTIONAL STATEMENT AND IN APPELLANT'S BRIEF ON THE MERITS.  (FN5)
IT IS TRUE THAT ARGUMENT WAS MOSTLY DIRECTED TO ANOTHER ISSUE IN THE
CASE, BUT THAT IS OFTEN THE FACT.  SEE ROGERS V. RICHMOND, 365 U.S.
534, 535-540.  OF COURSE, AN EARNEST ADVOCATE OF A POSITION ALWAYS
BELIEVES THAT, HAD HE ONLY AN ADDITIONAL OPPORTUNITY FOR ARGUMENT, HIS
SIDE WOULD WIN.  BUT, SUBJECT TO THE SOUND DISCRETION OF A COURT, ALL
ARGUMENT MUST AT LAST COME TO A HALT.  THIS IS ESPECIALLY SO AS TO AN
ISSUE ABOUT WHICH THIS COURT SAID LAST YEAR THAT "THE ARGUMENTS OF ITS
ANTAGONISTS AND OF ITS PROPONENTS HAVE BEEN SO MANY TIMES MARSHALLED AS
TO REQUIRE NO LENGTHY ELABORATION HERE."  ELKINS V. UNITED STATES,
SUPRA, 216. 

MOREOVER, CONTINUANCE OF WOLF V. COLORADO IN ITS FULL VIGOR BREEDS
THE UNSEEMLY SHOPPING AROUND OF THE KIND REVEALED IN WILSON V.
SCHNETTLER, 365 U.S. 381.  ONCE EVIDENCE, INADMISSIBLE IN A FEDERAL
COURT, IS ADMISSIBLE IN A STATE COURT A "DOUBLE STANDARD" EXISTS WHICH,
AS THE COURT POINTS OUT, LEADS TO "WORKING ARRANGEMENTS" THAT UNDERCUT
FEDERAL POLICY AND REDUCE SOME ASPECTS OF LAW ENFORCEMENT TO SHABBY
BUSINESS.  THE RULE THAT SUPPORTS THAT PRACTICE DOES NOT HAVE THE FORCE
OF REASON BEHIND IT.    FN1  THIS "CONFIDENTIAL SOURCE" TOLD THE
POLICE, IN THE SAME BREATH, THAT "THERE WAS A LARGE AMOUNT OF POLICY
PARAPHERNALIA BEING HIDDEN IN THE HOME." 

FN2  THE PURPORTED WARRANT HAS DISAPPEARED FROM THE CASE.  THE STATE
MADE NO ATTEMPT TO PROVE ITS EXISTENCE, ISSUANCE OR CONTENTS, EITHER AT
THE TRIAL OR ON THE HEARING OF A PRELIMINARY MOTION TO SUPPRESS.  THE
SUPREME COURT OF OHIO SAID:  "THERE IS, IN THE RECORD, CONSIDERABLE
DOUBT AS TO WHETHER THERE EVER WAS ANY WARRANT FOR THE SEARCH OF
DEFENDANT'S HOME  ...  .  ADMITTEDLY  ... THERE WAS NO WARRANT
AUTHORIZING A SEARCH  ...  FOR ANY 'LEWD, OR LASCIVIOUS BOOK  ...
PRINT, OR PICTURE.'"  170 OHIO ST. 427, 430, 166 N.E.2D 387, 389. 
FN3  OHIO REV. CODE, SEC. 2905.34:  "NO PERSON SHALL KNOWINGLY  ...
HAVE IN HIS POSSESSION OR UNDER HIS CONTROL AN OBSCENE, LEWD, OR
LASCIVIOUS BOOK, MAGAZINE, PAMPHLET, PAPER, WRITING, ADVERTISEMENT,
CIRCULAR, PRINT, PICTURE  ...  OR DRAWING ...  OF AN INDECENT OR
IMMORAL NATURE  ...  .  WHOEVER VIOLATES THIS SECTION SHALL BE FINED
NOT LESS THAN TWO HUNDRED NOR MORE THAN TWO THOUSAND DOLLARS OR
IMPRISONED NOT LESS THAN ONE NOR MORE THAN SEVEN YEARS, OR BOTH." 

FN4  "THE NOTICE OF APPEAL  ...  SHALL SET FORTH THE QUESTIONS
PRESENTED BY THE APPEAL  ...  . ONLY THE QUESTIONS SET FORTH IN THE
NOTICE OF APPEAL OR FAIRLY COMPRISED THEREIN WILL BE CONSIDERED BY THE
COURT."  RULE 10(2)(C), RULES OF THE SUPREME COURT OF THE UNITED
STATES. 

FN5  "DID THE CONDUCT OF THE POLICE IN PROCURING THE BOOKS, PAPERS
AND PICTURES PLACED IN EVIDENCE BY THE PROSECUTION VIOLATE AMENDMENT
IV, AMENDMENT V, AND AMENDMENT XIV SECTION 1 OF THE UNITED STATES
CONSTITUTION  ...  ?" 

MEMORANDUM OF MR. JUSTICE STEWART. 

AGREEING FULLY WITH PART I OF MR. JUSTICE HARLAN'S DISSENTING
OPINION, I EXPRESS NO VIEW AS TO THE MERITS OF THE CONSTITUTIONAL ISSUE
WHICH THE COURT TODAY DECIDES.  I WOULD, HOWEVER, REVERSE THE JUDGMENT
IN THIS CASE, BECAUSE I AM PERSUADED THAT THE PROVISION OF SEC. 2905.34
OF THE OHIO REVISED CODE, UPON WHICH THE PETITIONER'S CONVICTION WAS
BASED, IS, IN THE WORDS OF MR. JUSTICE HARLAN, NOT "CONSISTENT WITH THE
RIGHTS OF FREE THOUGHT AND EXPRESSION ASSURED AGAINST STATE ACTION BY
THE FOURTEENTH AMENDMENT." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

IN OVERRULING THE WOLF CASE THE COURT, IN MY OPINION, HAS FORGOTTEN
THE SENSE OF JUDICIAL RESTRAINT WHICH, WITH DUE REGARD FOR STARE
DECISIS, IS ONE ELEMENT THAT SHOULD ENTER INTO DECIDING WHETHER A PAST
DECISION OF THIS COURT SHOULD BE OVERRULED.  APART FROM THAT I ALSO
BELIEVE THAT THE WOLF RULE REPRESENTS SOUNDER CONSTITUTIONAL DOCTRINE
THAN THE NEW RULE WHICH NOW REPLACES IT.

                                            I. 

FROM THE COURT'S STATEMENT OF THE CASE ONE WOULD GATHER THAT THE
CENTRAL, IF NOT CONTROLLING, ISSUE ON THIS APPEAL IS WHETHER ILLEGALLY
STATE-SEIZED EVIDENCE IS CONSTITUTIONALLY ADMISSIBLE IN A STATE
PROSECUTION, AN ISSUE WHICH WOULD OF COURSE FACE US WITH THE NEED FOR
RE-EXAMINING WOLF.  HOWEVER, SUCH IS NOT THE SITUATION.  FOR, ALTHOUGH
THAT QUESTION WAS INDEED RAISED HERE AND BELOW AMONG APPELLANT'S
SUBORDINATE POINTS, THE NEW AND PIVOTAL ISSUE BROUGHT TO THE COURT BY
THIS APPEAL IS WHETHER SEC. 2905.34 OF THE OHIO REVISED CODE MAKING
CRIMINAL THE MERE KNOWING POSSESSION OR CONTROL OF OBSCENE MATERIAL,
(FN3) AND UNDER WHICH APPELLANT HAS BEEN CONVICTED, IS CONSISTENT WITH
THE RIGHTS OF FREE THOUGHT AND EXPRESSION ASSURED AGAINST STATE ACTION
BY THE FOURTEENTH AMENDMENT.  (FN2)  THAT WAS THE PRINCIPAL ISSUE WHICH
WAS DECIDED BY THE OHIO SUPREME COURT, (FN3) WHICH WAS TENDERED BY
APPELLANT'S JURISDICTIONAL STATEMENT, (FN4) AND WHICH WAS BRIEFED (FN5)
AND ARGUED (FN6) IN THIS COURT. 

IN THIS POSTURE OF THINGS, I THINK IT FAIR TO SAY THAT FIVE MEMBERS
OF THIS COURT HAVE SIMPLY "REACHED OUT" TO OVERRULE WOLF.  WITH ALL
RESPECT FOR THE VIEWS OF THE MAJORITY, AND RECOGNIZING THAT STARE
DECISIS CARRIES DIFFERENT WEIGHT IN CONSTITUTIONAL ADJUDICATION THAN IT
DOES IN NONCONSTITUTIONAL DECISION, I CAN PERCEIVE NO JUSTIFICATION FOR
REGARDING THIS CASE AS AN APPROPRIATE OCCASION FOR RE-EXAMINING WOLF. 

THE ACTION OF THE COURT FINDS NO SUPPORT IN THE RULE THAT DECISION OF
CONSTITUTIONAL ISSUES SHOULD BE AVOIDED WHEREVER POSSIBLE.  FOR IN
OVERRULING WOLF THE COURT, INSTEAD OF PASSING UPON THE VALIDITY OF
OHIO'S SEC. 2905.34, HAS SIMPLY CHOSEN BETWEEN TWO CONSTITUTIONAL
QUESTIONS.  MOREOVER, I SUBMIT THAT IT HAS CHOSEN THE MORE DIFFICULT
AND LESS APPROPRIATE OF THE TWO QUESTIONS.  THE OHIO STATUTE WHICH, AS
CONSTRUED BY THE STATE SUPREME COURT, PUNISHES KNOWING POSSESSION OR
CONTROL OF OBSCENE MATERIAL, IRRESPECTIVE OF THE PURPOSES OF SUCH
POSSESSION OR CONTROL (WITH EXCEPTIONS NOT HERE APPLICABLE) (FN7) AND
IRRESPECTIVE OF WHETHER THE ACCUSED HAD ANY REASONABLE OPPORTUNITY TO
RID HIMSELF OF THE MATERIAL AFTER DISCOVERING THAT IT WAS OBSCENE,
(FN8) SURELY PRESENTS A CONSTITUTIONAL QUESTION WHICH IS BOTH SIMPLER
AND LESS FAR-REACHING THAN THE QUESTION WHICH THE COURT DECIDES TODAY. 
IT SEEMS TO ME THAT JUSTICE MIGHT WELL HAVE BEEN DONE IN THIS CASE
WITHOUT OVERTURNING A DECISION ON WHICH THE ADMINISTRATION OF CRIMINAL
LAW IN MANY OF THE STATES HAS LONG JUSTIFIABLY RELIED. 

SINCE THE DEMANDS OF THE CASE BEFORE US DO NOT REQUIRE US TO REACH
THE QUESTION OF THE VALIDITY OF WOLF, I THINK THIS CASE FURNISHES A
SINGULARLY INAPPROPRIATE OCCASION FOR RECONSIDERATION OF THAT DECISION,
IF RECONSIDERATION IS INDEED WARRANTED.  EVEN THE MOST CURSORY
EXAMINATION WILL REVEAL THAT THE DOCTRINE OF THE WOLF CASE HAS BEEN OF
CONTINUING IMPORTANCE IN THE ADMINISTRATION OF STATE CRIMINAL LAW. 
INDEED, CERTAINLY AS REGARDS ITS "NON-EXCLUSIONARY" ASPECT, WOLF DID NO
MORE THAN ARTICULATE THE THEN EXISTING ASSUMPTION AMONG THE STATES THAT
THE FEDERAL CASES ENFORCING THE EXCLUSIONARY RULE "DO NOT BIND THE
STATES, FOR THEY CONSTRUE PROVISIONS OF THE FEDERAL CONSTITUTION, THE
FOURTH AND FIFTH AMENDMENTS, NOT APPLICABLE TO THE STATES."  PEOPLE V.
DEFORE, 242 N.Y. 13, 20, 150 N.E. 585, 587.  THOUGH, OF COURSE, NOT
REFLECTING THE FULL MEASURE OF THIS CONTINUING RELIANCE, I FIND THAT
DURING THE LAST THREE TERMS, FOR INSTANCE, THE ISSUE OF THE
INADMISSIBILITY OF ILLEGALLY STATE-OBTAINED EVIDENCE APPEARS ON AN
AVERAGE OF ABOUT FIFTEEN TIMES PER TERM JUST IN THE IN FORMA PAUPERIS
CASES SUMMARILY DISPOSED OF BY US.  THIS WOULD INDICATE BOTH THAT THE
ISSUE WHICH IS NOW BEING DECIDED MAY WELL HAVE UNTOWARD PRACTICAL
RAMIFICATIONS RESPECTING STATE CASES LONG SINCE DISPOSED OF IN RELIANCE
ON WOLF, AND THAT WERE WE DETERMINED TO RE-EXAMINE THAT DOCTRINE WE
WOULD NOT LACK FUTURE OPPORTUNITY. 

THE OCCASION WHICH THE COURT HAS TAKEN HERE IS IN THE CONTEXT OF A
CASE WHERE THE QUESTION WAS BRIEFED NOT AT ALL AND ARGUED ONLY
EXTREMELY TANGENTIALLY.  THE UNWISDOM OF OVERRULING WOLF WITHOUT FULL
DRESS ARGUMENT IS AGGRAVATED BY THE CIRCUMSTANCE THAT THAT DECISION IS
A COMPARATIVELY RECENT ONE (1949) TO WHICH THREE MEMBERS OF THE PRESENT
MAJORITY HAVE AT ONE TIME OR OTHER EXPRESSLY SUBSCRIBED, ONE TO BE SURE
WITH EXPLICIT MISGIVINGS.  (FN9)  I WOULD THINK THAT OUR OBLIGATION TO
THE STATES, ON WHOM WE IMPOSE THIS NEW RULE, AS WELL AS THE OBLIGATION
OF ORDERLY ADHERENCE TO OUR OWN PROCESSES WOULD DEMAND THAT WE SEEK
THAT AID WHICH ADEQUATE BRIEFING AND ARGUMENT LENDS TO THE
DETERMINATION OF AN IMPORTANT ISSUE.  IT CERTAINLY HAS NEVER BEEN A
POSTULATE OF JUDICIAL POWER THAT MERE ALTERED DISPOSITION, OR
SUBSEQUENT MEMBERSHIP ON THE COURT, IS SUFFICIENT WARRANT FOR
OVERTURNING A DELIBERATELY DECIDED RULE OF CONSTITUTIONAL LAW. 

THUS, IF THE COURT WERE BENT ON RECONSIDERING WOLF, I THINK THAT
THERE WOULD SOON HAVE PRESENTED ITSELF AN APPROPRIATE OPPORTUNITY IN
WHICH WE COULD HAVE HAD THE BENEFIT OF FULL BRIEFING AND ARGUMENT.  IN
ANY EVENT, AT THE VERY LEAST, THE PRESENT CASE SHOULD HAVE BEEN SET
DOWN FOR REARGUMENT, IN VIEW OF THE INADEQUATE BRIEFING AND ARGUMENT WE
HAVE RECEIVED ON THE WOLF POINT.  TO ALL INTENTS AND PURPOSES THE
COURT'S PRESENT ACTION AMOUNTS TO A SUMMARY REVERSAL OF WOLF, WITHOUT
ARGUMENT. 

I AM BOUND TO SAY THAT WHAT HAS BEEN DONE IS NOT LIKELY TO PROMOTE
RESPECT EITHER FOR THE COURT'S ADJUDICATORY PROCESS OR FOR THE
STABILITY OF ITS DECISIONS.  HAVING BEEN UNABLE, HOWEVER, TO PERSUADE
ANY OF THE MAJORITY TO A DIFFERENT PROCEDURAL COURSE, I NOW TURN TO THE
MERITS OF THE PRESENT DECISION. 

                                          II. 

ESSENTIAL TO THE MAJORITY'S ARGUMENT AGAINST WOLF IS THE PROPOSITION
THAT THE RULE OF WEEKS V. UNITED STATES, 232 U.S. 383, EXCLUDING IN
FEDERAL CRIMINAL TRIALS THE USE OF EVIDENCE OBTAINED IN VIOLATION OF
THE FOURTH AMENDMENT, DERIVES NOT FROM THE "SUPERVISORY POWER" OF THIS
COURT OVER THE FEDERAL JUDICIAL SYSTEM, BUT FROM CONSTITUTIONAL
REQUIREMENT.  THIS IS SO BECAUSE NO ONE, I SUPPOSE, WOULD SUGGEST THAT
THIS COURT POSSESSES ANY GENERAL SUPERVISORY POWER OVER THE STATE
COURTS.  ALTHOUGH I ENTERTAIN CONSIDERABLE DOUBT AS TO THE SOUNDNESS OF
THIS FOUNDATIONAL PROPOSITION OF THE MAJORITY, CF. WOLF V. COLORADO,
338 U.S., AT 39-40 (CONCURRING OPINION), I SHALL ASSUME, FOR PRESENT
PURPOSES, THAT THE WEEKS RULE "IS OF CONSTITUTIONAL ORIGIN." 

AT THE HEART OF THE MAJORITY'S OPINION IN THIS CASE IS THE FOLLOWING
SYLLOGISM:  (1) THE RULE EXCLUDING IN FEDERAL CRIMINAL TRIALS EVIDENCE
WHICH IS THE PRODUCT OF AN ILLEGAL SEARCH AND SEIZURE IS "PART AND
PARCEL" OF THE FOURTH AMENDMENT; (2) WOLF HELD THAT THE "PRIVACY"
ASSURED AGAINST FEDERAL ACTION BY THE FOURTH AMENDMENT IS ALSO
PROTECTED AGAINST STATE ACTION BY THE FOURTEENTH AMENDMENT; AND (3) IT
IS THEREFORE "LOGICALLY AND CONSTITUTIONALLY NECESSARY" THAT THE WEEKS
EXCLUSIONARY RULE SHOULD ALSO BE ENFORCED AGAINST THE STATES.  (FN10) 

THIS REASONING ULTIMATELY RESTS ON THE UNSOUND PREMISE THAT BECAUSE
WOLF CARRIED INTO THE STATES, AS PART OF "THE CONCEPT OF ORDERED
LIBERTY" EMBODIED IN THE FOURTEENTH AMENDMENT (338 U.S., AT 27), IT
MUST FOLLOW THAT WHATEVER CONFIGURATIONS OF THE FOURTH AMENDMENT HAVE
BEEN DEVELOPED IN THE PARTICULARIZING FEDERAL PRECEDENTS ARE LIKEWISE
TO BE DEEMED A PART OF "ORDERED LIBERTY," AND AS SUCH ARE ENFORCEABLE
AGAINST THE STATES.  FOR ME, THIS DOES NOT FOLLOW AT ALL. 

IT CANNOT BE TOO MUCH EMPHASIZED THAT WHAT WAS RECOGNIZED IN WOLF WAS
NOT THAT THE FOURTH AMENDMENT AS SUCH IS ENFORCEABLE AGAINST THE STATES
AS A FACET OF DUE PROCESS, A VIEW OF THE FOURTEENTH AMENDMENT WHICH, AS
WOLF ITSELF POINTED OUT (338 U.S., AT 26), HAS LONG SINCE BEEN
DISCREDITED, BUT THE PRINCIPLE OF PRIVACY "WHICH IS AT THE CORE OF THE
FOURTH AMENDMENT."  (ID., AT 27.)  IT WOULD NOT BE PROPER TO EXPECT OR
IMPOSE ANY PRECISE EQUIVALENCE, EITHER AS REGARDS THE SCOPE OF THE
RIGHT OR THE MEANS OF ITS IMPLEMENTATION, BETWEEN THE REQUIREMENTS OF
THE FOURTH AND FOURTEENTH AMENDMENTS.  FOR THE FOURTH, UNLIKE WHAT WAS
SAID IN WOLF OF THE FOURTEENTH, DOES NOT STATE A GENERAL PRINCIPLE
ONLY; IT IS A PARTICULAR COMMAND, HAVING ITS SETTING IN A PRE-EXISTING
LEGAL CONTEXT ON WHICH BOTH INTERPRETING DECISIONS AND ENABLING
STATUTES MUST AT LEAST BUILD. 

THUS, EVEN IN A CASE WHICH PRESENTED SIMPLY THE QUESTION OF WHETHER A
PARTICULAR SEARCH AND SEIZURE WAS CONSTITUTIONALLY "UNREASONABLE" - SAY
IN A TORT ACTION AGAINST STATE OFFICERS - WE WOULD NOT BE TRUE TO THE
FOURTEENTH AMENDMENT WERE WE MERELY TO STRETCH THE GENERAL PRINCIPLE OF
INDIVIDUAL PRIVACY ON A PROCRUSTEAN BED OF FEDERAL PRECEDENTS UNDER THE
FOURTH AMENDMENT.  BUT IN THIS INSTANCE MORE THAN THAT IS INVOLVED, FOR
HERE WE ARE REVIEWING NOT A DETERMINATION THAT WHAT THE STATE POLICE
DID WAS CONSTITUTIONALLY PERMISSIBLE (SINCE THE STATE COURT QUITE
EVIDENTLY ASSUMED THAT IT WAS NOT), BUT A DETERMINATION THAT APPELLANT
WAS PROPERLY FOUND GUILTY OF CONDUCT WHICH, FOR PRESENT PURPOSES, IT IS
TO BE ASSUMED THE STATE COULD CONSTITUTIONALLY PUNISH.  SINCE THERE IS
NOT THE SLIGHTEST SUGGESTION THAT OHIO'S POLICY IS "AFFIRMATIVELY TO
SANCTION  ...  POLICE INCURSION INTO PRIVACY" (338 U.S., AT 28),
COMPARE MARCUS V. SEARCH WARRANTS, POST, P. 717, WHAT THE COURT IS NOW
DOING IS TO IMPOSE UPON THE STATES NOT ONLY FEDERAL SUBSTANTIVE
STANDARDS OF "SEARCH AND SEIZURE" BUT ALSO THE BASIC FEDERAL REMEDY FOR
VIOLATION OF THOSE STANDARDS.  FOR I THINK IT ENTIRELY CLEAR THAT THE
WEEKS EXCLUSIONARY RULE IS BUT A REMEDY WHICH, BY PENALIZING PAST
OFFICIAL MISCONDUCT, IS AIMED AT DETERRING SUCH CONDUCT IN THE FUTURE. 

I WOULD NOT IMPOSE UPON THE STATES THIS FEDERAL EXCLUSIONARY REMEDY. 
THE REASONS GIVEN BY THE MAJORITY FOR NOW SUDDENTLY TURNING ITS BACK ON
WOLF SEEM TO ME NOTABLY UNCONVINCING. 

FIRST, IT IS SAID THAT "THE FACTUAL GROUNDS UPON WHICH WOLF WAS
BASED" HAVE SINCE CHANGED, IN THAT MORE STATES NOW FOLLOW THE WEEKS
EXCLUSIONARY RULE THAN WAS SO AT THE TIME WOLF WAS DECIDED.  WHILE THAT
IS TRUE, A RECENT SURVEY INDICATES THAT AT PRESENT ONE-HALF OF THE
STATES STILL ADHERE TO THE COMMON-LAW NON-EXCLUSIONARY RULE, AND ONE,
MARYLAND, RETAINS THE RULE AS TO FELONIES.  BERMAN AND OBERST,
ADMISSIBILITY OF EVIDENCE OBTAINED BY AN UNCONSTITUTIONAL SEARCH AND
SEIZURE, 55 N.W.L. REV. 525, 532-533.  BUT IN ANY CASE SURELY ALL THIS
IS BESIDE THE POINT, AS THE MAJORITY ITSELF INDEED SEEMS TO RECOGNIZE. 
OUR CONCERN HERE, AS IT WAS IN WOLF, IS NOT WITH THE DESIRABILITY OF
THAT RULE BUT ONLY WITH THE QUESTION WHETHER THE STATES ARE
CONSTITUTIONALLY FREE TO FOLLOW IT OR NOT AS THEY MAY THEMSELVES
DETERMINE, AND THE RELEVANCE OF THE DISPARITY OF VIEWS AMONG THE STATES
ON THIS POINT LIES SIMPLY IN THE FACT THAT THE JUDGMENT INVOLVED IS A
DEBATABLE ONE.  MOREOVER, THE VERY FACT ON WHICH THE MAJORITY RELIES,
INSTEAD OF LENDING SUPPORT TO WHAT IS NOW BEING DONE, POINTS AWAY FROM
THE NEED OF REPLACING VOLUNTARY STATE ACTION WITH FEDERAL COMPULSION. 
THE PRESERVATION OF A PROPER BALANCE BETWEEN STATE AND FEDERAL
RESPONSIBILITY IN THE ADMINISTRATION OF CRIMINAL JUSTICE DEMANDS
PATIENCE ON THE PART OF THOSE WHO MIGHT LIKE TO SEE THINGS MOVE FASTER
AMONG THE STATES IN THIS RESPECT.  PROBLEMS OF CRIMINAL LAW ENFORCEMENT
VARY WIDELY FROM STATE TO STATE.  ONE STATE, IN CONSIDERING THE
TOTALITY OF ITS LEGAL PICTURE, MAY CONCLUDE THAT THE NEED FOR EMBRACING
THE WEEKS RULE IS PRESSING BECAUSE OTHER REMEDIES ARE UNAVAILABLE OR
INADEQUATE TO SECURE COMPLIANCE WITH THE SUBSTANTIVE CONSTITUTIONAL
PRINCIPLE INVOLVED.  ANOTHER, THOUGH EQUALLY SOLICITOUS OF
CONSTITUTIONAL RIGHTS, MAY CHOOSE TO PURSUE ONE PURPOSE AT A TIME,
ALLOWING ALL EVIDENCE RELEVANT TO GUILT TO BE BROUGHT INTO A CRIMINAL
TRIAL, AND DEALING WITH CONSTITUTIONAL INFRACTIONS BY OTHER MEANS. 
STILL ANOTHER MAY CONSIDER THE EXCLUSIONARY RULE TOO ROUGH-AND-READY A
REMEDY, IN THAT IT REACHES ONLY UNCONSTITUTIONAL INTRUSIONS WHICH
EVENTUATE IN CRIMINAL PROSECUTION OF THE VICTIMS.  FURTHER, A STATE
AFTER EXPERIMENTING WITH THE WEEKS RULE FOR A TIME MAY, BECAUSE OF
UNSATISFACTORY EXPERIENCE WITH IT, DECIDE TO REVERT TO A NON
EXCLUSIONARY RULE.  AND SO ON.  FROM THE STANDPOINT OF CONSTITUTIONAL
PERMISSIBILITY IN POINTING A STATE IN ONE DIRECTION OR ANOTHER, I DO
NOT SEE AT ALL WHY "TIME HAS SET ITS FACE AGAINST" THE CONSIDERATIONS
WHICH LED MR. JUSTICE CARDOZO, THEN CHIEF JUDGE OF THE NEW YORK COURT
OF APPEALS, TO REJECT FOR NEW YORK IN PEOPLE V. DEFORE, 242 N.Y. 13,
150 N.E. 585, THE WEEKS EXCLUSIONARY RULE.  FOR US THE QUESTION
REMAINS, AS IT HAS ALWAYS BEEN, ONE OF STATE POWER, NOT ONE OF PASSING
JUDGMENT ON THE WISDOM OF ONE STATE COURSE OR ANOTHER.  IN MY VIEW THIS
COURT SHOULD CONTINUE TO FORBEAR FROM FETTERING THE STATES WITH AN
ADAMANT RULE WHICH MAY EMBARRASS THEM IN COPING WITH THEIR OWN PECULIAR
PROBLEMS IN CRIMINAL LAW ENFORCEMENT. 

FURTHER, WE ARE TOLD THAT IMPOSITION OF THE WEEKS RULE ON THE STATES
MAKES "VERY GOOD SENSE," IN THAT IT WILL PROMOTE RECOGNITION BY STATE
AND FEDERAL OFFICIALS OF THEIR "MUTUAL OBLIGATION TO RESPECT THE SAME
FUNDAMENTAL CRITERIA" IN THEIR APPROACH TO LAW ENFORCEMENT, AND WILL
AVOID " 'NEEDLESS CONFLICT BETWEEN STATE AND FEDERAL COURTS.'"  INDEED
THE MAJORITY NOW FINDS AN INCONGRUITY IN WOLF'S DISCRIMINATING
PERCEPTION  BETWEEN THE DEMANDS OF "ORDERED LIBERTY" AS RESPECTS THE
BASIC RIGHT OF "PRIVACY" AND THE MEANS OF SECURING IT AMONG THE
STATES.  THAT PERCEPTION, RESTING BOTH ON A SENSITIVE REGARD FOR OUR
FEDERAL SYSTEM AND A SOUND RECOGNITION OF THIS COURT'S REMOTENESS FROM
PARTICULAR STATE PROBLEMS, IS FOR ME THE STRENGTH OF THAT DECISION. 

AN APPROACH WHICH REGARDS THE ISSUE AS ONE OF ACHIEVING PROCEDURAL
SYMMETRY OR OF SERVING ADMINISTRATIVE CONVENIENCE SURELY DISFIGURES THE
BOUNDARIES OF THIS COURT'S FUNCTIONS IN RELATION TO THE STATE AND
FEDERAL COURTS.  OUR ROLE IN PROMULGATING THE WEEKS RULE AND ITS
EXTENSIONS IN SUCH CASES AS REA, ELKINS, AND RIOS (FN11) WAS QUITE A
DIFFERENT ONE THAN IT IS HERE.  THERE, IN IMPLEMENTING THE FOURTH
AMENDMENT, WE OCCUPIED THE POSITION OF A TRIBUNAL HAVING THE ULTIMATE
RESPONSIBILITY FOR DEVELOPING THE STANDARDS AND PROCEDURES OF JUDICIAL
ADMINISTRATION WITHIN THE JUDICIAL SYSTEM OVER WHICH IT PRESIDES.  HERE
WE REVIEW STATE PROCEDURES WHOSE MEASURE IS TO BE TAKEN NOT AGAINST THE
SPECIFIC SUBSTANTIVE COMMANDS OF THE FOURTH AMENDMENT BUT UNDER THE
FLEXIBLE CONTOURS OF THE DUE PROCESS CLAUSE.  I DO NOT BELIEVE THAT THE
FOURTEENTH AMENDMENT EMPOWERS THIS COURT TO MOULD STATE REMEDIES
EFFECTUATING THE RIGHT TO FREEDOM FROM "ARBITRARY INTRUSION BY THE
POLICE" TO SUIT ITS OWN NOTIONS OF HOW THINGS SHOULD BE DONE, AS, FOR
INSTANCE, THE CALIFORNIA SUPREME COURT DID IN PEOPLE V. CAHAN, 44 CAL.
2D 434, 282 P.2D 905, WITH REFERENCE TO PROCEDURES IN THE CALIFORNIA
COURTS OR AS THIS COURT DID IN WEEKS FOR THE LOWER FEDERAL COURTS. 

A STATE CONVICTION COMES TO US AS THE COMPLETE PRODUCT OF A SOVEREIGN
JUDICIAL SYSTEM.  TYPICALLY A CASE WILL HAVE BEEN TRIED IN A TRIAL
COURT, TESTED IN SOME FINAL APPELLATE COURT, AND WILL GO NO FURTHER. 
IN THE COMPARATIVELY RARE INSTANCE WHEN A CONVICTION IS REVIEWED BY US
ON DUE PROCESS GROUNDS WE DEAL THEN WITH A FINISHED PRODUCT IN THE
CREATION OF WHICH WE ARE ALLOWED NO HAND, AND OUR TASK, FAR FROM BEING
ONE OF OVER-ALL SUPERVISION, IS, SPEAKING GENERALLY, RESTRICTED TO A
DETERMINATION OF WHETHER THE PROSECUTION WAS CONSTITUTIONALLY FAIR. 
THE SPECIFICS OF TRIAL PROCEDURE, WHICH IN EVERY MATURE LEGAL SYSTEM
WILL VARY GREATLY IN DETAIL, ARE WITHIN THE SOLE COMPETENCE OF THE
STATES.  I DO NOT SEE HOW IT CAN BE SAID THAT A TRIAL BECOMES UNFAIR
SIMPLY BECAUSE A STATE DETERMINES THAT EVIDENCE MAY BE CONSIDERED BY
THE TRIER OF FACT, REGARDLESS OF HOW IT WAS OBTAINED, IF IT IS RELEVANT
TO THE ONE ISSUE WITH WHICH THE TRIAL IS CONCERNED, THE GUILT OR
INNOCENCE OF THE ACCUSED.  OF COURSE, A COURT MAY USE ITS PROCEDURES AS
AN INCIDENTAL MEANS OF PURSUING OTHER ENDS THAN THE CORRECT RESOLUTION
OF THE CONTROVERSIES BEFORE IT.  SUCH INDEED IS THE WEEKS RULE, BUT IF
A STATE DOES NOT CHOOSE TO USE ITS COURTS IN THIS WAY, I DO NOT BELIEVE
THAT THIS COURT IS EMPOWERED TO IMPOSE THIS MUCH-DEBATED PROCEDURE ON
LOCAL COURTS, HOWEVER EFFICACIOUS WE MAY CONSIDER THE WEEKS RULE TO BE
AS A MEANS OF SECURING CONSTITUTIONAL RIGHTS. 

FINALLY, IT IS SAID THAT THE OVERRULING OF WOLF IS SUPPORTED BY THE
ESTABLISHED DOCTRINE THAT THE ADMISSION IN EVIDENCE OF AN INVOLUNTARY
CONFESSION RENDERS A STATE CONVICTION CONSTITUTIONALLY INVALID.  SINCE
SUCH A CONFESSION MAY OFTEN BE ENTIRELY RELIABLE, AND THEREFORE OF THE
GREATEST RELEVANCE TO THE ISSUE OF THE TRIAL, THE ARGUMENT CONTINUES,
THIS DOCTRINE IS AMPLE WARRANT IN PRECEDENT THAT THE WAY EVIDENCE WAS
OBTAINED, AND JUST ITS RELEVANCE, IS CONSTITUTIONALLY SIGNIFICANT TO
THE FAIRNESS OF A TRIAL.  I BELIEVE THIS ANALOGY IS NOT A TRUE ONE. 
THE "COERCED CONFESSION" RULE IS CERTAINLY NOT A RULE THAT ANY
ILLEGALLY OBTAINED STATEMENTS MAY NOT BE USED IN EVIDENCE.  I WOULD
SUPPOSE THAT A STATEMENT WHICH IS PROCURED DURING A PERIOD OF ILLEGAL
DETENTION, MCNABB V. UNITED STATES, 318 U.S. 332, IS, AS MUCH AS
UNLAWFULLY SEIZED EVIDENCE, ILLEGALLY OBTAINED, BUT THIS COURT HAS
CONSISTENTLY REFUSED TO REVERSE STATE CONVICTIONS RESTING ON THE USE OF
SUCH STATEMENTS.  INDEED IT WOULD SEEM THE COURT LAID AT REST THE VERY
ARGUMENT NOW MADE BY THE MAJORITY WHEN IN LISENBA V. CALIFORNIA, 314
U.S. 219, A STATE-COERCED CONFESSION CASE, IT SAID (AT 235): 

"IT MAY BE ASSUMED THAT THE TREATMENT OF THE PETITIONER BY THE POLICE
...  DEPRIVED HIM OF HIS LIBERTY WITHOUT DUE PROCESS AND THAT THE
PETITIONER WOULD HAVE BEEN AFFORDED PREVENTIVE RELIEF IF HE COULD HAVE
GAINED ACCESS TO A COURT TO SEEK IT. 

"BUT ILLEGAL ACTS, AS SUCH, COMMITTED IN THE COURSE OF OBTAINING A
CONFESSION  ...  DO NOT FURNISH AN ANSWER TO THE CONSTITUTIONAL
QUESTION WE MUST DECIDE  ...  .  THE GRAVAMEN OF HIS COMPLAINT IS THE
UNFAIRNESS OF THE USE OF HIS CONFESSIONS, AND WHAT OCCURRED IN THEIR
PROCUREMENT IS RELEVANT ONLY AS IT BEARS ON THAT ISSUE." 

THE POINT, THEN, MUST BE THAT IN REQUIRING EXCLUSION OF AN
INVOLUNTARY STATEMENT OF AN ACCUSED, WE ARE CONCERNED NOT WITH AN
APPROPRIATE REMEDY FOR WHAT THE POLICE HAVE DONE, BUT WITH SOMETHING
WHICH IS REGARDED AS GOING TO THE HEART OF OUR CONCEPTS OF FAIRNESS IN
JUDICIAL PROCEDURE.  THE OPERATIVE ASSUMPTION OF OUR PROCEDURAL SYSTEM
IS THAT "OURS IS THE ACCUSATORIAL AS OPPOSED TO THE INQUISITORIAL
SYSTEM.  SUCH HAS BEEN THE CHARACTERISTIC OF ANGLO-AMERICAN CRIMINAL
JUSTICE SINCE IT FREED ITSELF FROM PRACTICES BORROWED BY THE STAR
CHAMBER FROM THE CONTINENT WHEREBY THE ACCUSED WAS INTERROGATED IN
SECRET FOR HOURS ON END."  WATTS V. INDIANA, 338 U.S. 49, 54.  SEE
ROGERS V. RICHMOND, 365 U.S. 534, 541.  THE PRESSURES BROUGHT TO BEAR
AGAINST AN ACCUSED LEADING TO A CONFESSION, UNLIKE AN UNCONSTITUTIONAL
VIOLATION OF PRIVACY, DO NOT, APART FROM THE USE OF THE CONFESSION AT
TRIAL, NECESSARILY INVOLVE INDEPENDENT CONSTITUTIONAL VIOLATIONS.  WHAT
IS CRUCIAL IS THAT THE TRIAL DEFENSE TO WHICH AN ACCUSED IS ENTITLED
SHOULD NOT BE RENDERED AN EMPTY FORMALITY BY REASON OF STATEMENTS WRUNG
FROM HIM, FOR THEN "A PRISONER  ...  HAS BEEN MADE THE DELUDED
INSTRUMENT OF HIS OWN CONVICTION."  2 HAWKINS, PLEAS OF THE CROWN (8TH
ED., 1824), C. 46, SEC. 34.  THAT THIS IS A PROCEDURAL RIGHT, AND THAT
ITS VIOLATION OCCURS AT THE TIME HIS IMPROPERLY OBTAINED STATEMENT IS
ADMITTED AT TRIAL, IS MANIFEST.  FOR WITHOUT THIS RIGHT ALL THE CAREFUL
SAFEGUARDS ERECTED AROUND THE GIVING OF TESTIMONY, WHETHER BY AN
ACCUSED OR ANY OTHER WITNESS, WOULD BECOME EMPTY FORMALITIES IN A
PROCEDURE WHERE THE MOST COMPELLING POSSIBLE EVIDENCE OF GUILT, A
CONFESSION, WOULD HAVE ALREADY BEEN OBTAINED AT THE UNSUPERVISED
PLEASURE OF THE POLICE. 

THIS, AND NOT THE DISCIPLINING OF THE POLICE, AS WITH ILLEGALLY
SEIZED EVIDENCE, IS SURELY THE TRUE BASIS FOR EXCLUDING A STATEMENT OF
THE ACCUSED WHICH WAS UNCONSTITUTIONALLY OBTAINED.  IN SUM, I THINK THE
COERCED CONFESSION ANALOGY WORKS STRONGLY AGAINST WHAT THE COURT DOES
TODAY. 

IN CONCLUSION, IT SHOULD BE NOTED THAT THE MAJORITY OPINION IN THIS
CASE IS IN FACT AN OPINION ONLY FOR THE JUDGMENT OVERRULING WOLF, AND
NOT FOR THE BASIC RATIONALE BY WHICH FOUR MEMBERS OF THE MAJORITY HAVE
REACHED THAT RESULT.  FOR MY BROTHER BLACK IS UNWILLING TO SUBSCRIBE TO
THEIR VIEW THAT THE WEEKS EXCLUSIONARY RULE DERIVES FROM THE FOURTH
AMENDMENT ITSELF (SEE ANTE, P. 661), BUT JOINS THE MAJORITY OPINION ON
THE PREMISE THAT ITS END RESULT CAN BE ACHIEVED BY BRINGING THE FIFTH
AMENDMENT TO THE AID OF THE FOURTH (SEE ANTE, PP.  662-665).  (FN12)
ON THAT SCORE I NEED ONLY SAY THAT WHATEVER THE VALIDITY OF THE "FOURTH
FIFTH AMENDMENT" CORRELATION WHICH THE BOYD CASE (116 U.S. 616) FOUND,
SEE 8 WIGMORE, EVIDENCE (3D ED.  1940), SEC. 2184, WE HAVE ONLY VERY
RECENTLY AGAIN REITERATED THE LONG-ESTABLISHED DOCTRINE OF THIS COURT
THAT THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT
APPLICABLE TO THE STATES.  SEE COHEN V. HURLEY, 366 U.S. 117. 

I REGRET THAT I FIND SO UNWISE IN PRINCIPLE AND SO INEXPEDIENT IN
POLICY A DECISION MOTIVATED BY THE HIGH PURPOSE OF INCREASING RESPECT
FOR CONSTITUTIONAL RIGHTS.  BUT IN THE LAST ANALYSIS I THINK THIS COURT
CAN INCREASE RESPECT FOR THE CONSTITUTION ONLY IF IT RIGIDLY RESPECTS
THE LIMITATIONS WHICH THE CONSTITUTION PLACES UPON IT, AND RESPECTS AS
WELL THE PRINCIPLES INHERENT IN ITS OWN PROCESSES.  IN THE PRESENT CASE
I THINK WE EXCEED BOTH, AND THAT OUR VOICE BECOMES ONLY A VOICE OF
POWER, NOT OF REASON. 

FN1  THE MATERIAL PARTS OF THAT LAW ARE QUOTED IN NOTE 1 OF THE
COURT'S OPINION.  ANTE, P. 643. 

FN2  IN ITS NOTE 3, ANTE, P. 646, THE COURT, IT SEEMS TO ME, HAS
TURNED UPSIDE DOWN THE RELATIVE IMPORTANCE OF APPELLANT'S RELIANCE ON
THE VARIOUS POINTS MADE BY HIM ON THIS APPEAL. 

FN3  SEE 170 OHIO ST. 427, 166 N.E.2D 387.  BECAUSE OF THE UNUSUAL
PROVISION OF THE OHIO CONSTITUTION REQUIRING "THE CONCURRENCE OF AT
LEAST ALL BUT ONE OF THE JUDGES" OF THE OHIO SUPREME COURT BEFORE A
STATE LAW IS HELD UNCONSTITUTIONAL (EXCEPT IN THE CASE OF AFFIRMANCE OF
A HOLDING OF UNCONSTITUTIONALITY BY THE OHIO COURT OF APPEALS), OHIO
CONST., ART. IV, SEC. 2, THE STATE SUPREME COURT WAS COMPELLED TO
UPHOLD THE CONSTITUTIONALITY OF SEC.  2905.34, DESPITE THE FACT THAT
FOUR OF ITS SEVEN JUDGES THOUGHT THE STATUTE OFFENSIVE TO THE
FOURTEENTH AMENDMENT. 

FN4  RESPECTING THE "SUBSTANTIALITY" OF THE FEDERAL QUESTIONS
TENDERED BY THIS APPEAL, APPELLANT'S JURISDICTIONAL STATEMENT CONTAINED
THE FOLLOWING: 

"THE FEDERAL QUESTIONS RAISED BY THIS APPEAL ARE SUBSTANTIAL FOR THE
FOLLOWING REASONS: 

"THE OHIO STATUTE UNDER WHICH THE DEFENDANT WAS CONVICTED VIOLATES
ONE'S SACRED RIGHT TO OWN AND HOLD PROPERTY, WHICH HAS BEEN HELD
INVIOLATE BY THE FEDERAL CONSTITUTION.  THE RIGHT OF THE INDIVIDUAL 'TO
READ, TO BELIEVE OR DISBELIEVE, AND TO THINK WITHOUT GOVERNMENTAL
SUPERVISION IS ONE OF OUR BASIC LIBERTIES, BUT TO DICTATE TO THE MATURE
ADULT WHAT BOOKS HE MAY HAVE IN HIS OWN PRIVATE LIBRARY SEEMS TO BE A
CLEAR INFRINGEMENT OF THE CONSTITUTIONAL RIGHTS OF THE INDIVIDUAL'
(JUSTICE HERBERT'S DISSENTING OPINION, APPENDIX 'A').  MANY CONVICTIONS
HAVE FOLLOWED THAT OF THE DEFENDANT IN THE STATE COURTS OF OHIO BASED
UPON THIS VERY SAME STATUTE.  UNLESS THIS HONORABLE COURT HEARS THIS
MATTER AND DETERMINES ONCE AND FOR ALL THAT THE STATUTE IS
UNCONSTITUTIONAL AS DEFENDANT CONTENDS, THERE WILL BE MANY SUCH
APPEALS.  WHEN SECTIONS 2905.34, 2905.37 AND 3767.01 OF THE OHIO
REVISED CODE (THE LATTER TWO SECTIONS PROVIDING EXCEPTIONS TO THE
COVERAGE OF SEC. 2905.34 AND RELATED PROVISIONS OF OHIO'S OBSCENITY
STATUTES) ARE READ TOGETHER,  ...  THEY OBVIOUSLY CONTRAVENE THE
FEDERAL AND STATE CONSTITUTIONAL PROVISIONS; BY BEING CONVICTED UNDER
THE STATUTE INVOLVED HEREIN, AND IN THE MANNER IN WHICH SHE WAS
CONVICTED, DEFENDANT-APPELLANT HAS BEEN DENIED DUE PROCESS OF LAW; A
SENTENCE OF FROM ONE (1) TO SEVEN (7) YEARS IN A PENAL INSTITUTION FOR
ALLEGED VIOLATION OF THIS UNCONSTITUTIONAL SECTION OF THE OHIO REVISED
CODE DEPRIVES THE DEFENDANT OF HER RIGHT TO LIBERTY AND THE PURSUIT OF
HAPPINESS, CONTRARY TO THE FEDERAL AND STATE CONSTITUTIONAL PROVISIONS,
FOR CIRCUMSTANCES WHICH SHE HERSELF DID NOT PUT IN MOTION, AND IS A
CRUEL AND UNUSUAL PUNISHMENT INFLICTED UPON HER CONTRARY TO THE STATE
AND FEDERAL CONSTITUTIONS." 

FN5  THE APPELLANT'S BRIEF DID NOT URGE THE OVERRULING OF WOLF. 
INDEED IT DID NOT EVEN CITE THE CASE.  THE BRIEF OF THE APPELLEE MERELY
RELIED ON WOLF IN SUPPORT OF THE STATE'S CONTENTION THAT APPELLANT'S
CONVICTION WAS NOT VITIATED BY THE ADMISSION IN EVIDENCE OF THE FRUITS
OF THE ALLEGED UNLAWFUL SEARCH AND SEIZURE BY THE POLICE.  THE BRIEF OF
THE AMERICAN AND OHIO CIVIL LIBERTIES UNIONS, AS AMICI, DID IN ONE
SHORT CONCLUDING PARAGRAPH OF ITS ARGUMENT "REQUEST" THE COURT TO RE
EXAMINE AND OVERRULE WOLF, BUT WITHOUT ARGUMENTATION.  I QUOTE IN FULL
THIS PART OF THEIR BRIEF:    "THIS CASE PRESENTS THE ISSUE OF WHETHER
EVIDENCE OBTAINED IN AN ILLEGAL SEARCH AND SEIZURE CAN CONSTITUTIONALLY
BE USED IN A STATE CRIMINAL PROCEEDING.  WE ARE AWARE OF THE VIEW THAT
THIS COURT HAS TAKEN ON THIS ISSUE IN WOLF V. COLORADO, 338 U.S. 25. 
IT IS OUR PURPOSE BY THIS PARAGRAPH TO RESPECTFULLY REQUEST THAT THIS
COURT RE-EXAMINE THIS ISSUE AND CONCLUDE THAT THE ORDERED LIBERTY
CONCEPT GUARANTEED TO PERSONS BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT NECESSARILY REQUIRES THAT EVIDENCE ILLEGALLY
OBTAINED IN VIOLATION THEREOF, NOT BE ADMISSIBLE IN STATE CRIMINAL
PROCEEDINGS."    FN6  COUNSEL FOR APPELLANT ON ORAL ARGUMENT, AS IN HIS
BRIEF, DID NOT URGE THAT WOLF BE OVERRULED.   INDEED, WHEN PRESSED BY
QUESTIONING FROM THE BENCH WHETHER HE WAS NOT IN FACT URGING US TO
OVERRULE WOLF, COUNSEL EXPRESSLY DISAVOWED ANY SUCH PURPOSE. 

FN7  "2905.37 LEGITIMATE PUBLICATIONS NOT OBSCENE. 

"SECTIONS 2905.33 TO 2905.36, INCLUSIVE, OF THE REVISED CODE DO NOT
AFFECT TEACHING IN REGULARLY CHARTERED MEDICAL COLLEGES, THE
PUBLICATION OF STANDARD MEDICAL BOOKS, OR REGULAR PRACTITIONERS OF
MEDICINE OR DRUGGISTS IN THEIR LEGITIMATE BUSINESS, NOR DO THEY AFFECT
THE PUBLICATION AND DISTRIBUTION OF BONA FIDE WORKS OF ART. NO ARTICLES
SPECIFIED IN SECTIONS 2905.33, 2905.34, AND 2905.36 OF THE REVISED CODE
SHALL BE CONSIDERED A WORK OF ART UNLESS SUCH ARTICLE IS MADE,
PUBLISHED, AND DISTRIBUTED BY A BONA FIDE ASSOCIATION OF ARTISTS OR AN
ASSOCIATION FOR THE ADVANCEMENT OF ART WHOSE DEMONSTRATED PURPOSE DOES
NOT CONTRAVENE SECTIONS 2905.06 TO 2905.44, INCLUSIVE, OF THE REVISED
CODE, AND WHICH IS NOT ORGANIZED FOR PROFIT." 

SEC. 3767.01(C): 

"THIS SECTION AND SECTIONS 2905.34,  ...  2905.37  ...  OF THE
REVISED CODE SHALL NOT AFFECT  ... ANY NEWSPAPER, MAGAZINE, OR OTHER
PUBLICATION ENTERED AS SECOND CLASS MATTER BY THE POST-OFFICE
DEPARTMENT." 

FN8 THE OHIO SUPREME COURT, IN ITS CONSTRUCTION OF SEC. 2905.34,
CONTROLLING UPON US HERE, REFUSED TO IMPORT INTO IT ANY OTHER
EXCEPTIONS THAN THOSE EXPRESSLY PROVIDED BY THE STATUTE.  SEE NOTE 7,
SUPRA.  INSTEAD IT HELD THAT "IF ANYONE LOOKS AT A BOOK AND FINDS IT
LEWD, HE IS FORTHWITH, UNDER THIS LEGISLATION, GUILTY  ...  ." 

FN9  SEE WOLF V. COLORADO, 338 U.S., AT 39-40; IRVINE V. CALIFORNIA. 
347 U.S. 128, 133-134, AND AT 138-139.  IN THE LATTER CASE, DECIDED IN
1954, MR. JUSTICE JACKSON, WRITING FOR THE MAJORITY, SAID (AT P. 134):
"WE THINK THAT THE WOLF DECISION SHOULD NOT BE OVERRULED, FOR THE
REASONS SO PERSUASIVELY STATED THEREIN."  COMPARE SCHWARTZ V. TEXAS,
344 U.S. 199, AND STEFANELLI V. MINARD, 342 U.S. 117, IN WHICH THE WOLF
CASE WAS DISCUSSED AND IN NO WAY DISAPPROVED.  AND SEE PUGACH V.
DOLLINGER, 365 U.S. 458, WHICH RELIED ON SCHWARTZ. 

FN10  ACTUALLY, ONLY FOUR MEMBERS OF THE MAJORITY SUPPORT THIS
REASONING.  SEE PP. 685-686, INFRA. 

FN11  REA V. UNITED STATES, 350 U.S. 214; ELKINS V. UNITED STATES,
364 U.S. 206; RIOS V. UNITED STATES, 364 U.S. 253. 

FN12  MY BROTHER STEWART CONCURS IN THE COURT'S JUDGMENT ON GROUNDS
WHICH HAVE NOTHING TO DO WITH WOLF. 
..END :








AMERICAN AUTOMOBILE ASSOCIATION V. UNITED STATES 367 U.S. 687 


NO. 288.  ARGUED APRIL 17, 1961 - DECIDED JUNE 19, 1961 - CT. CL. - ,
181 F. SUPP. 255, AFFIRMED. 


PETITIONER KEEPS ITS BOOKS AND MAKES ITS INCOME TAX RETURNS ON A
CALENDAR-YEAR ACCRUAL BASIS.  FOR THE YEARS 1952 AND 1953, IT REPORTED
AS GROSS INCOME ONLY THAT PORTION OF THE TOTAL PREPAID ANNUAL
MEMBERSHIP DUES ACTAULLY RECEIVED OR COLLECTED IN THE CALENDAR YEAR
WHICH RATABLY CORRESPONDED WITH THE NUMBER OF MEMBERSHIP MONTHS COVERED
BY THOSE DUES OCCURRING DURING THE SAME TAXABLE YEAR.  THE BALANCE WAS
RESERVED FOR RATABLE MONTHLY ACCRUAL OVER THE REMAINING MEMBERSHIP
PERIODS IN THE FOLLOWING CALENDAR YEAR, AS DEFERRED OR UNEARNED INCOME
REFLECTING THE ESTIMATED EXPENSE OF SERVICE TO ITS MEMBERS.  IN THE
EXERCISE OF HIS DISCRETION UNDER SEC. 41 OF THE INTERNAL REVENUE CODE
OF 1939, THE COMMISSIONER DETERMINED NOT TO ACCEPT PETITIONER'S
ACCOUNTING SYSTEM AND ASSESSED DEFICIENCIES RESULTING MAINLY FROM
PETITIONER'S FAILURE TO INCLUDE IN ITS GROSS INCOME FOR EACH YEAR THE
TOTAL AMOUNT OF DUES RECEIVED DURING THAT YEAR.  HELD:  THE
COMMISSIONER'S ACTION IS SUSTAINED.  PP. 688-698. 

(A)  THE ACCOUNTING METHOD USED BY PETITIONER MAY PRESENT AN ACCURATE
IMAGE OF THE TOTAL FINANCIAL STRUTURE; BUT IT FAILS TO RESPECT THE
CRITERIA OF ANNUAL TAX ACCOUNTING, AND IT MAY BE REJECTED BY THE
COMMISSIONER.  PP. 690-692. 

(B)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FINDING OF THE
COURT OF CLAIMS THAT PETITIONER'S METHOD OF ACCOUNTING HAD BEEN USED
REGULARLY BY IT SINCE 1931 AND WAS IN ACCORD WITH GENERALLY ACCEPTED
COMMERCIAL ACCOUNTING PRINCIPLES AND PRACTICES.  PP. 692-694. 

(C)  THE CONCLUSION HERE REACHED IS CONFIRMED BY THE FACTS THAT
CONGRESS INTRODUCED INTO THE INTERNAL REVENUE CODE OF 1954 PROVISIONS
WHICH SPECIFICALLY PERMITTED ESSENTIALLY THE SAME PRACTICE AS THAT
EMPLOYED BY PETITIONER; IT REPEALED THOSE PROVISIONS RETROACTIVELY ONE
YEAR LATER; AND IN 1958 IT REJECTED A PROPOSED AMENDMENT WHICH WOULD
HAVE SPECIFICALLY PERMITTED THIS PRACTICE WITH RESPECT TO PREPAID
AUTOMOBILE ASSOCIATION MEMBERSHIP DUES.  PP. 694-698. 

AMERICAN AUTOMOBILE ASSOCIATION V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN THIS SUIT FOR REFUND OF FEDERAL INCOME TAXES THE PETITIONER,
AMERICAN AUTOMOBILE ASSOCIATION, SEEKS DETERMINATION OF ITS TAX
LIABILITY FOR THE YEARS 1952 AND 1953.  RETURNS FILED FOR ITS TAXABLE
CALENDAR YEARS WERE PREPARED ON THE BASIS OF THE SAME ACCRUAL METHOD OF
ACCOUNTING AS WAS USED IN KEEPING ITS BOOKS.  THE ASSOCIATION REPORTED
AS GROSS INCOME ONLY THAT PORTION OF THE TOTAL PREPAID ANNUAL
MEMBERSHIP DUES, ACTUALLY RECEIVED OR COLLECTED IN THE CALENDAR YEAR,
WHICH RATABLY CORRESPONDED WITH THE NUMBER OF MEMBERSHIP MONTHS COVERED
BY THOSE DUES AND OCCURRING WITHIN THE SAME TAXABLE CALENDAR YEAR.  THE
BALANCE WAS RESERVED FOR RATABLE MONTHLY ACCRUAL OVER THE REMAINING
MEMBERSHIP PERIOD IN THE FOLLOWING CALENDAR YEAR AS DEFERRED OR
UNEARNED INCOME REFLECTING AN ESTIMATED FUTURE SERVICE EXPENSES TO
MEMBERS.  THE COMMISSIONER CONTENDS THAT PETITIONER SHOULD HAVE
REPORTED IN ITS GROSS INCOME FOR EACH YEAR THE ENTIRE AMOUNT OF
MEMBERSHIP DUES ACTUALLY RECEIVED IN THE TAXABLE CALENDAR YEAR WITHOUT
REGARD TO EXPECTED FUTURE SERVICE EXPENSE IN THE SUBSEQUENT YEAR.  THE
SOLE POINT AT ISSUE, THEREFORE, IS IN WHAT YEAR THE PREPAID DUES ARE
TAXABLE AS INCOME. 

IN AUDITING THE ASSOCIATION'S RETURNS FOR THE YEARS 1952 THROUGH
1954, THE COMMISSIONER, IN THE EXERCISE OF HIS DISCRETION UNDER SEC. 41
OF THE INTERNAL REVENUE CODE OF 1939, (FN1) DETERMINED NOT TO ACCEPT
THE TAXPAYER'S ACCOUNTING SYSTEM.  AS A RESULT, ADJUSTMENTS WERE MADE
FOR THOSE YEARS PRINCIPALLY BY ADDING TO GROSS INCOME FOR EACH TAXABLE
YEAR THE AMOUNT OF PREPAID DUES WHICH THE ASSOCIATION HAD RECEIVED BUT
NOT RECOGNIZED AS INCOME, AND SUBTRACTING FROM GROSS INCOME AMOUNTS
RECOGNIZED IN THE YEAR ALTHOUGH ACTUALLY RECEIVED IN THE PRIOR YEAR.  A
NET OPERATING LOSS CLAIMED FOR 1954 AND CORRESPONDING CARRY-BACK
DEDUCTIONS WERE GREATLY REDUCED, AND TAX DEFICIENCIES WERE ASSESSED FOR
1952 AND 1953.  PETITIONER PAID THE DEFICIENCIES AND ITS TIMELY CLAIM
FOR REFUND WAS DENIED.  SUIT TO RECOVER WAS INSTITUTED IN THE COURT OF
CLAIMS, BUT THE COURT SUSTAINED THE COMMISSIONER, - CT. CL. - , 181 F.
SUPP. 255.  RECOGNIZING A CONFLICT BETWEEN THE DECISION BELOW AND THAT
IN BRESSNER RADIO, INC., V. COMMISSIONER, 267 F.2D 520, WE GRANTED
CERTIORARI.  364 U.S. 813.  WE HAVE CONCLUDED THAT FOR TAX PURPOSES THE
DUES MUST BE INCLUDED AS INCOME IN THE CALENDAR YEAR OF THEIR ACTUAL
RECEIPT. 

THE ASSOCIATION IS A NATIONAL AUTOMOBILE CLUB ORGANIZED AS A NONSTOCK
MEMBERSHIP CORPORATION WITH ITS PRINCIPAL OFFICE IN WASHINGTON, D.C.
IT PROVIDES A VARIETY OF SERVICES (FN2) TO THE MEMBERS OF AFFILIATED
LOCAL AUTOMOBILE CLUBS AND THOSE OF TEN CLUBS WHICH TAXPAYER ITSELF
DIRECTLY OPERATES AS DIVISIONS, BUT SUCH SERVICES ARE RENDERED SOLELY
UPON A MEMBER'S DEMAND.  ITS INCOME IS DERIVED PRIMARILY FROM DUES PAID
ONE YEAR IN ADVANCE BY MEMBERS OF THE CLUBS.  MEMBERSHIPS MAY COMMENCE
OR BE RENEWED IN ANY MONTH OF THE YEAR.  FOR MANY YEARS, THE
ASSOCIATION HAS EMPLOYED AN ACCRUAL METHOD OF ACCOUNTING AND THE
CALENDAR YEAR AS ITS TAXABLE YEAR.  IT IS ADMITTED THAT FOR ITS
PURPOSES THE METHOD USED IS IN ACCORD WITH GENERALLY ACCEPTED
COMMERCIAL ACCOUNTING PRINCIPLES.  THE MEMBERSHIP DUES, AS RECEIVED,
WERE DEPOSITED IN THE ASSOCIATION'S BANK ACCOUNTS WITHOUT RESTRICTION
AS TO THEIR USE FOR ANY OF ITS CORPORATE PURPOSES.  HOWEVER, FOR THE
ASSOCIATION'S OWN ACCOUNTING PURPOSES, THE DUES WERE TREATED IN ITS
BOOKS AS INCOME RECEIVED RATABLY (FN3) OVER THE 12-MONTH MEMBERSHIP
PERIOD.   THE PORTIONS THEREOF RATABLY ATTRIBUTABLE TO MEMBERSHIP
MONTHS OCCURRING BEYOND THE YEAR OF RECEIPT, I.E., IN A SECOND CALENDAR
YEAR, WERE REFLECTED IN THE ASSOCIATION'S BOOKS AT THE CLOSE OF THE
FIRST YEAR AS UNEARNED OR DEFERRED INCOME.  CERTAIN OPERATING EXPENSES
WERE CHARGEABLE AS PREPAID MEMBERSHIP COST AND DEDUCTED RATABLY OVER
THE SAME PERIODS OF TIME AS THOSE OVER WHICH DUES WERE RECOGNIZED AS
INCOME. 

THE COURT OF CLAIMS BOTTOMED ITS OPINION ON AUTOMOBILE CLUB OF
MICHIGAN V. COMMISSIONER, 353 U.S. 180 (1957), FINDING THAT "THE METHOD
OF TREATMENT OF PREPAID AUTOMOBILE CLUB MEMBERSHIP DUES EMPLOYED BY THE
ASSOCIATION HERE WAS,  ...  FOR FEDERAL INCOME TAX PURPOSES, 'PURELY
ARTIFICIAL.'"  181 F. SUPP. 255, 258.  IT ACCEPTED THAT CASE AS "A
REJECTION BY THE SUPREME COURT OF THE ACCOUNTING METHOD ADVANCED BY
PLAINTIFF IN THE CASE AT BAR."  IBID.  THE ASSOCIATION DOES NOT DENY
THAT ITS ACCOUNTING SYSTEM IS SUBSTANTIALLY IDENTICAL TO THAT USED BY
THE PETITIONER IN MICHIGAN.  IT MAINTAINS, HOWEVER, THAT MICHIGAN DOES
NOT CONTROL THIS CASE BECAUSE OF A DIFFERENCE IN PROOF, I.E., THAT IN
THIS CASE THE RECORD CONTAINS EXPERT ACCOUNTING TESTIMONY INDICATING
THAT THE SYSTEM USED WAS IN ACCORD WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES; THAT ITS PROOF OF COST OF MEMBER SERVICE WAS DETAILED; AND
THAT THE CORRELATION BETWEEN THAT COST AND THE PERIOD OF TIME OVER
WHICH THE DUES WERE CREDITED AS INCOME WAS SHOWN AND JUSTIFIED BY PROOF
OF EXPERIENCE.  THE HOLDING OF MICHIGAN, HOWEVER, THAT THE SYSTEM OF
ACCOUNTING WAS "PURELY ARTIFICIAL" WAS BASED UPON THE FINDING THAT
"SUBSTANTIALLY ALL SERVICES ARE PERFORMED ONLY UPON A MEMBER'S DEMAND
AND THE TAXPAYER'S PERFORMANCE WAS NOT RELATED TO FIXED DATES AFTER THE
TAX YEAR."  353 U.S. 180, 189, NOTE 20.  THAT IS ALSO TRUE HERE.  (FN4)
AS THE ASSOCIATION'S OWN ACCOUNTING EXPERT TESTIFIED: 

"YOU ARE DEALING WITH A GROUP OR POOL.  ANY POOLING OR RISK
SITUATION, PARTICULAR MEMBERS MAY IN A PARTICULAR YEAR REQUIRE VERY
LITTLE OF A SPECIFIC SERVICE THAT IS RENDERED TO CERTAIN OTHER
MEMBERS.   I WOULDN'T KNOW WHAT THE EXPERIENCE ON THAT WOULD BE, BUT I
WOULD THINK IT WOULD BE RATHER IRREGULAR BETWEEN INDIVIDUAL MEMBERS
...  .  I AM BUYING THE AVAILABILITY OF SERVICES, THE PROTECTION  ...
.  FRANKLY, THE IRREGULARITY OF THE ACTUAL FURNISHING OF THE MAPS AND
HELPING YOU OUT WHEN YOU RUN OUT OF GASOLINE AND SO ON, I FRANKLY DON'T
THINK THAT HAS A BLESSED THING TO DO WITH THE OVER-ALL ACCOUNTING." 

IT MAY BE TRUE THAT TO THE ACCOUNTANT THE ACTUAL INCIDENCE OF COST IN
SERVING AN INDIVIDUAL MEMBER IN EXCHANGE FOR HIS INDIVIDUAL DUES IS
INCONSEQUENTIAL, OR, FROM THE VIEWPOINT OF COMMERCIAL ACCOUNTING,
UNESSENTIAL TO DETERMINATION AND DISCLOSURE OF THE OVERALL FINANCIAL
CONDITION OF THE ASSOCIATION.  THAT "IRREGULARITY," HOWEVER, IS HIGHLY
RELEVANT TO THE CLARITY OF AN ACCOUNTING SYSTEM WHICH DEFERS RECEIPT,
AS EARNED INCOME, OF DUES TO A TAXABLE PERIOD IN WHICH NO, SOME, OR ALL
THE SERVICES PAID FOR BY THOSE DUES MAY OR MAY NOT BE RENDERED.  THE
CODE EXACTS ITS REVENUE FROM THE INDIVIDUAL MEMBER'S DUES WHICH, NO ONE
DISPUTES, CONSTITUTE INCOME.  WHEN THEIR RECEIPT AS EARNED INCOME IS
RECOGNIZED RATABLY OVER TWO CALENDAR YEARS, WITHOUT REGARD TO
CORRESPONDINGLY FIXED INDIVIDUAL EXPENSE OR PERFORMANCE JUSTIFICATION,
BUT CONSISTENTLY WITH OVERALL EXPERIENCE, THEIR ACCOUNTING DOUBTLESS
PRESENTS A RATHER ACCURATE IMAGE OF THE TOTAL FINANCIAL STRUCTURE, BUT
FAILS TO RESPECT THE CRITERIA OF ANNUAL TAX ACCOUNTING AND MAY BE
REJECTED BY THE COMMISSIONER. 

THE ASSOCIATION FURTHER CONTENDS THAT THE FINDINGS OF THE COURT BELOW
SUPPORT ITS POSITION.  WE THINK NOT.  THE COURT OF CLAIMS' ONLY FINDING
AS TO THE ACCOUNTING SYSTEM ITSELF IS AS FOLLOWS: 

"22.  THE METHOD OF ACCOUNTING EMPLOYED BY PLAINTIFF DURING THE YEARS
IN ISSUE HAS BEEN USED REGULARLY BY PLAINTIFF SINCE 1931 AND IS IN
ACCORD WITH GENERALLY ACCEPTED COMMERCIAL ACCOUNTING PRINCIPLES AND
PRACTICES AND WAS, PRIOR TO THE ADVERSE DETERMIANTION BY THE
COMMISSIONER OF THE INTERNAL REVENUE, CUSTOMARILY AND GENERALLY
EMPLOYED IN THE MOTOR CLUB FIELD." 

THIS IS ONLY TO SAY THAT IN PERFORMING THE FUNCTION OF BUSINESS
ACCOUNTING THE METHOD EMPLOYED BY THE ASSOCIATION "IS IN ACCORD WITH
GENERALLY ACCEPTED COMMERCIAL ACCOUNTING PRINCIPLES AND PRACTICES."  IT
IS NOT TO HOLD THAT FOR INCOME TAX PURPOSES IT SO CLEARLY REFLECTS
INCOME AS TO BE BINDING ON THE TREASURY.  (FN5)  LIKEWISE, OTHER
FINDINGS MERELY REFLECTING STATISTICAL COMPUTATIONS OF AVERAGE MONTHLY
COST PER MEMBER ON A GROUP OR POOL BASIS ARE WITHOUT DETERMINATE
SIGNIFICANCE TO OUR DECISION THAT THE FEDERAL REVENUE CANNOT, WITHOUT
LEGISLATIVE CONSENT AND OVER OBJECTION OF THE COMMISSIONER, BE MADE TO
DEPEND UPON AVERAGE EXPERIENCE IN RENDERING PERFORMANCE AND TURNING A
PROFIT.  INDEED, SUCH TABULATIONS THEMSELVES DEMONSTRATE THE INADEQUACY
FROM AN INCOME TAX STANDPOINT OF THE PRO RATA METHOD OF ALLOCATING EACH
YEAR'S MEMBERSHIP DUES IN EQUAL MONTHLY INSTALLMENTS NOT IN FACT
RELATED TO THE EXPENSES INCURRED.  NOT ONLY DID INDIVIDUALLY INCURRED
EXPENSES ACTUALLY VARY FROM MONTH TO MONTH, BUT EVEN THE AVERAGE
EXPENSE VARIED - RECOGNITION OF INCOME NONETHELESS REMAINING RATABLY
CONSTANT.  ALTHOUGH THE FINDINGS BELOW SEEM TO INDICATE THAT IT WOULD
PRODUCE SUBSTANTIALLY THE SAME RESULT AS THAT OF THE SYSTEM OF RATABLE
MONTHLY RECOGNITION ACTUALLY EMPLOYED, WE CONSIDER SIMILARLY
UNSATISFACTORY, FROM AN INCOME TAX STANDPOINT, ALLOCATION OF MONTHLY
DUES TO GROSS MONTHLY INCOME TO THE EXTENT OF ACTUAL SERVICE
EXPENDITURES FOR THE SAME MONTH COMPUTED ON A GROUP OR POOL BASIS.  IN
ADDITION, THE ASSOCIATION'S ELECTION IN 1954 TO CHANGE ITS MONTHLY
RECOGNITION FORMULA (FN6) TO ONE WHICH TREATS ONE-HALF OF THE DUES AS
INCOME IN THE YEAR OF RECEIPT AND THE OTHER HALF AS INCOME RECEIVED IN
THE SUBSEQUENT YEAR, WITHOUT REGARD TO MONTH OF PAYMENT, ONLY MORE
CLEARLY INDICATES THE ARTIFICIALITY OF ITS METHOD, AT LEAST SO FAR AS
CONTROLLING TAX PURPOSES ARE CONCERNED.  MOREOVER, THE ASSOCIATION
REALIZED THAT THE FINDINGS OF THE COURT OF CLAIMS WERE NOT ALONE
SUFFICIENT FOR ITS PURPOSES.  IN ITS PETITION FOR REHEARING BELOW,
PETITIONER SPECIFICALLY ASKED THAT THEY BE AMENDED AND ENLARGED,
ESPECIALLY AS TO NO. 22 SET OUT ABOVE.  REHEARING AND AMENDMENT WERE
DENIED. 

WHETHER OR NOT THE COURT'S JUDGMENT IN MICHIGAN CONTROLS OUR
DISPOSITION OF THIS CASE, THERE ARE OTHER CONSIDERATIONS REQUIRING OUR
AFFIRMANCE.  THEY CONCERN THE ACTION OF THE CONGRESS WITH RESPECT TO
ITS OWN POSITIVE AND EXPRESS STATUTORY AUTHORIZATION OF EMPLOYMENT OF
SUCH SOUND COMMERCIAL ACCOUNTING PRACTICES IN REPORTING TAXABLE
INCOME.  IN 1954 THE CONGRESS FOUND DISSATISFACTION IN THE FACT THAT
"AS A RESULT OF COURT DECISIONS AND RULINGS, THERE HAVE DEVELOPED MANY
DIVERGENCIES BETWEEN THE COMPUTATION OF INCOME FOR TAX PURPOSES AND
INCOME FOR BUSINESS PURPOSES AS COMPUTED UNDER GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES.  THE AREAS OF DIFFERENCE ARE CONFINED ALMOST
ENTIRELY TO QUESTIONS OF WHEN CERTAIN TYPES OF REVENUE AND EXPENSES
SHOULD BE TAKEN INTO ACCOUNT IN ARRIVING AT NET INCOME."  HOUSE WAYS
AND MEANS COMMITTEE REPORT, H.R. REP. NO. 1337, 83D CONG., 2D SESS.
48.  AS A RESULT, IT INTRODUCED INTO THE INTERNAL REVENUE CODE OF 1954
SEC. 452 AND SEC. 462, (FN7) WHICH SPECIFICALLY PERMITTED ESSENTIALLY
THE SAME PRACTICE AS WAS EMPLOYED BY THE ASSOCIATION HERE.  (FN8)  ONLY
ONE YEAR LATER, HOWEVER, IN JUNE 1955, THE CONGRESS REPEALED THESE
OVERRULED THE LONG ADMINISTRATIVE PRACTICE OF THE COMMISSIONER AND
HOLDINGS OF THE COURTS IN DISALLOWING SUCH DEFERRAL OF INCOME FOR TAX
PURPOSES AND THEN WITHIN A YEAR REVERSED ITS OWN ACTION.  THIS REPEAL,
WE BELIEVE, CONFIRMS OUR VIEW THAT THE METHOD USED BY THE ASSOCIATION
COULD BE REJECTED BY THE COMMISSIONER.  WHILE THE CLAIM IS MADE THAT
CONGRESS DID NOT "INTEND TO DISTURB PRIOR LAW AS IT AFFECTED
PERMISSIBLE ACCRUAL ACCOUNTING PROVISIONS FOR TAX PURPOSES," H.R. REP.
NO. 293, 84TH CONG., 1ST SESS. 4-5, THE COLD FACT IS THAT IT REPEALED
THE ONLY LAW INCONTESTABLY PERMITTING THE PRACTICE UPON WHICH THE
ASSOCIATION DEPENDS.  TO SAY THAT, AS TO TAXPAYERS USING SUCH SYSTEMS,
CONGRESS WAS MERELY DECLARING EXISTING LAW WHEN IT ADOPTED SEC. 452 IN
1954, AND THAT IT WAS MERELY RESTORING UNAFFECTED THE SAME PRIOR LAW
WHEN IT REPEALED THE NEW SECTION IN 1955 FOR GOOD REASON, IS A
CONTRADICTION IN ITSELF, "VARNISHING NONSENSE WITH THE CHARM OF
SOUND."  INSTEAD OF CONSTITUTING A MERELY DUPLICATIVE CREATION, THE
FACT IS THAT SEC. 452 FOR THE FIRST TIME SPECIFICALLY DECLARED
PETITIONER'S SYSTEM OF ACCOUNTING TO BE ACCEPTABLE FOR INCOME TAX
PURPOSES, AND OVERRULED THE LONG-STANDING POSITION OF THE COMMISSIONER
AND COURTS TO THE CONTRARY.  AND THE REPEAL OF THE SECTION THE
FOLLOWING YEAR, UPON INSISTENCE BY THE TREASURY THAT THE PROPOSED
ENDORSEMENT OF SUCH TAX ACCOUNTING WOULD HAVE A DISASTROUS IMPACT ON
THE GOVERNMENT'S REVENUE, WAS JUST AS CLEARLY A MANDATE FROM THE
CONGRESS THAT PETITIONER'S SYSTEM WAS NOT ACCEPTABLE FOR TAX PURPOSES. 
TO INTERPRET ITS CAREFUL CONSIDERATION OF THE PROBLEM OTHERWISE IS TO
ACCUSE THE CONGRESS OF ENGAGING IN SCIAMACHY.  WE ARE FURTHER CONFIRMED
IN THIS VIEW BY CONSIDERATION OF THE EVEN MORE RECENT ACTION OF THE
CONGRESS IN 1958, SUBSEQUENT TO THE DECISION IN MICHIGAN, SUPRA.  IN
THAT YEAR SEC. 455 (FN9) WAS ADDED TO THE INTERNAL REVENUE CODE OF
1954.  IT PERMITS PUBLISHERS TO DEFER RECEIPT AS INCOME OF PREPAID
SUBSCRIPTIONS OF NEWSPAPERS, MAGAZINES AND PERIODICALS.  AN EFFORT WAS
MADE IN THE SENATE TO ADD A PROVISION IN SEC. 455 WHICH WOULD EXTEND
ITS COVERAGE TO PREPAID AUTOMOBILE CLUB MEMBERSHIP DUES.  (FN10)
HOWEVER, IN CONFERENCE THE HOUSE CONFEREES REFUSED TO ACCEPT THIS
AMENDMENT.  SENATOR BYRD EXPLAINED THE REJECTION OF THE AMENDMENT TO
THE SENATE (104 CONG. REC., PART 14, P. 17744):    "IT WAS THE POSITION
OF THE HOUSE CONFEREES THAT THIS MATTER OF PREPAID DUES AND FEES
RECEIVED BY NON-PROFIT SERVICE ORGANIZATIONS WAS A PART OF THE ENTIRE
SUBJECT DEALING WITH THE TREATMENT OF PREPAID INCOME AND THAT SUCH
SUBJECT SHOULD BE LEFT FOR STUDY OF THIS ENTIRE PROBLEM  ...  ." 
(FN11)    IT APPEARS, THEREFORE, THAT, PENDING ITS OWN FURTHER STUDY,
CONGRESS HAS GIVEN PUBLISHERS BUT DENIED AUTOMOBILE CLUBS THE VERY
RELIEF THAT THE ASSOCIATION SEEKS IN THIS COURT. 

TO RECAPITULATE, IT APPEARS THAT CONGRESS HAS LONG BEEN AWARE OF THE
PROBLEM THIS CASE PRESENTS.  IN 1954 IT ENACTED SEC. 452 AND SEC. 462,
BUT QUICKLY REPEALED THEM.  SINCE THAT TIME CONGRESS HAS AUTHORIZED THE
DESIRED ACCOUNTING ONLY IN THE INSTANCE OF PREPAID SUBSCRIPTION INCOME,
WHICH, AS WAS POINTED OUT IN MICHIGAN, IS RATABLY EARNED BY PERFORMANCE
ON "PUBLICATION DATES AFTER THE TAX YEAR."  353 U.S. 180, 189, NOTE
20.  IT HAS REFUSED TO ENLARGE SEC. 455 TO INCLUDE PREPAID MEMBERSHIP
DUES.   AT THE VERY LEAST, THIS BACKGROUND INDICATES CONGRESSIONAL
RECOGNITION OF THE COMPLICATIONS INHERENT IN THE PROBLEM AND ITS
SERIOUSNESS TO THE GENERAL REVENUE.  WE MUST LEAVE TO THE CONGRESS THE
FASHIONING OF A RULE WHICH, IN ANY EVENT, MUST HAVE WIDE
RAMIFICATIONS.  THE COMMITTEES OF THE CONGRESS HAVE STANDING COMMITTEES
EXPERTLY GROUNDED IN TAX PROBLEMS, WITH JURISDICTION COVERING THE WHOLE
FIELD OF TAXATION AND FACILITIES FOR STUDYING CONSIDERATIONS OF POLICY
AS BETWEEN THE VARIOUS TAXPAYERS AND THE NECESSITIES OF THE GENERAL
REVENUES.  THE VALIDITY OF THE LONG-ESTABLISHED POLICY OF THE COURT IN
DEFERRING, WHERE POSSIBLE, TO CONGRESSIONAL PROCEDURES IN THE TAX FIELD
IS CLEARLY INDICATED IN THIS CASE.  (FN12)  FINDING ONLY THAT, IN LIGHT
OF EXISTING PROVISIONS NOT SPECIFICALLY AUTHORIZING IT, THE EXERCISE OF
THE COMMISSIONER'S DISCRETION IN REJECTING THE ASSOCIATION'S ACCOUNTING
SYSTEM WAS NOT UNSOUND, WE NEED NOT ANTICIPATE WHAT WILL BE THE PRODUCT
OF FURTHER "STUDY OF THIS ENTIRE PROBLEM."  AFFIRMED. 

FN1  A TAXPAYER'S "NET INCOME SHALL BE COMPUTED  ...  IN ACCORDANCE
WITH THE METHOD OF ACCOUNTING REGULARLY EMPLOYED IN KEEPING THE BOOKS
...  BUT  ...  IF THE METHOD EMPLOYED DOES NOT CLEARLY REFLECT THE
INCOME, THE COMPUTATION SHALL BE MADE IN ACCORDANCE WITH SUCH METHOD AS
IN THE OPINION OF THE COMMISSIONER DOES CLEARLY REFLECT THE INCOME  ...
."  53 STAT. 24, 26 U.S.C. (1952 ED.)  SEC.  41.  SEE ALSO THE SIMILAR
PROVISION IN THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. (1958 ED.) 
SEC.  446. 

FN2 THESE GENERALLY INCLUDE FURNISHING ROAD MAPS, ROUTING, TOUR
BOOKS, ETC.; EMERGENCY ROAD SERVICE THROUGH CONTRACTS WITH LOCAL
GARAGES; BAIL BOND PROTECTION; PERSONAL AUTOMOBILE ACCIDENT INSURANCE
AND THEFT PROTECTION; AND, IN SOME OF ITS DIVISIONS, MOTOR LICENSE
PROCUREMENT, BRAKE AND HEADLIGHT ADJUSTMENT SERVICE, NOTARIAL DUTIES
AND ADVICE IN THE PROSECUTION OF SMALL CLAIMS. 

FN3  IN 1952 AND 1953 DUES COLLECTED IN ANY MONTH WERE ACCOUNTED AS
INCOME TO THE EXTENT OF ONE-TWENTY-FOURTH FOR THAT MONTH (ON THE
ASSUMPTION THAT THE MEAN DATE OF RECEIPT WAS THE MIDDLE OF THE MONTH),
ONE-TWELFTH FOR EACH OF THE NEXT ELEVEN MONTHS, AND AGAIN ONE-TWENTY
FOURTH IN THE ANNIVERSARY MONTH.  IN 1954, HOWEVER, GUIDED BY ITS OWN
STATISTICAL AVERAGE EXPERIENCE, THE ASSOCIATION CHANGED ITS SYSTEM SO
AS TO MORE SIMPLY REACH ALMOST THE SAME RESULT BY CHARGING TO YEAR OF
RECEIPT, WITHOUT REGARD TO MONTH OF RECEIPT, ONE-HALF OF THE ENTIRE
DUES PAYMENT AND DEFERRING THE BALANCE TO THE FOLLOWING YEAR. 

FN4  BEACON PUBLISHING CO. V. COMMISSIONER, 218 F.2D 697, AND
SCHUESSLER V. COMMISSIONER, 230 F.2D 722, MAY BE DISTINGUISHED FROM THE
PRESENT CASE ON THE SAME GROUNDS WHICH MADE THEM DISTINGUISHABLE IN
AUTOMOBILE CLUB OF MICHIGAN V. COMMISSIONER, 353 U.S. 180, 189, NOTE
20. 

FN5  THE HEARING COMMISSIONER OF THE COURT OF CLAIMS HAD SPECIFICALLY
FOUND AS FACT THAT PETITIONER'S "METHOD OF ACCOUNTING  ...  CLEARLY
REFLECTED ITS NET INCOME FOR SUCH YEARS."  THE COURT, HOWEVER, DID NOT
ADOPT THAT FINDING. 

FN6  SEE NOTE 2, SUPRA. 

FN7  26 U.S.C. (1952 ED., SUPP. II) SECS. 452, 462, REPEALED, 69
STAT. 134 (1955). 

FN8  THE SENATE REPORT INCLUDED THIS LANGUAGE: 

"UNDER THE 1939 CODE, REGARDLESS OF THE METHOD OF ACCOUNTING  ...
AMOUNTS ARE INCLUDIBLE IN GROSS INCOME BY THE RECIPIENT NOT LATER THAN
THE TIME OF RECEIPT IF THEY ARE SUBJECT TO FREE AND UNRESTRICTED USE BY
THE TAXPAYER EVEN THOUGH THE PAYMENTS ARE FOR GOODS OR SERVICES TO BE
PROVIDED BY THE TAXPAYER AT A FUTURE TIME."  S. REP. NO. 1622, 83D
CONG., 2D SESS. 301. 

FN9  26 U.S.C. (1958 ED.)  SEC.  455. 

FN10  AN UNSUCCESSFUL ATTEMPT TO INDUCE CONGRESSIONAL ACTION ON THIS
PROBLEM WAS MADE LAST YEAR, SEE H.R. 11266, 86TH CONG., 2D SESS., WHICH
PASSED THE HOUSE AUGUST 24, 1960, 106 CONG.  REC. 17482, BUT FAILED TO
DRAW ANY ACTION BY THE SENATE BEFORE ADJOURNMENT.  AN IDENTICAL BILL IS
CURRENTLY PENDING, SEE H.R. 929, 87TH CONG., 1ST SESS., AND H.R. REP.
NO. 381 ACCOMPANYING THE BILL AND RECOMMENDING ITS PASSAGE.  UNDER THAT
MEASURE THE TAXPAYER'S LIABILITY TO ITS MEMBERS "SHALL BE DEEMED TO
EXIST RATABLY OVER THE PERIOD  ...  THAT SUCH SERVICES ARE REQUIRED TO
BE RENDERED, OR ...  PRIVILEGES  ...  MADE AVAILABLE." 

FN11  THE EIGHTY-FOURTH CONGRESS STARTED THE STUDY OF "LEGISLATION
DEALING WITH PREPAID INCOME AND RESERVES FOR ESTIMATED EXPENSES  ...
."  S. REP. NO. 372, 84TH CONG., 1ST SESS. 6. 

FN12  IN 1955 IT WAS ESTIMATED THAT TRANSITIONAL LOSS OF REVENUE
UNDER SEC. 452 AND SEC. 462, REPEALED THAT YEAR, WOULD TOTAL IN EXCESS
OF A BILLION DOLLARS.  H.R. REP. NO. 293, 84TH CONG., 1ST SESS. 3. 
THAT THIS IMPACT ON THE REVENUE CONTINUES TO BE AN IMPORTANT FACTOR IN
CONGRESSIONAL CONSIDERATION OF THE PROBLEM IS INDICATED BY THE
OBSERVATION OF THE HOUSE COMMITTEE ON WAYS AND MEANS THAT A
"TRANSITIONAL RULE" IS NECESSARY "TO MINIMIZE THE INITIAL REVENUE
IMPACT" OF THE MEASURE CURRENTLY PENDING.  H.R. REP. NO. 381, 87TH
CONG., 1ST SESS. 4.  THAT THE SYSTEM USED BY PETITIONER HERE IS,
PERHAPS, PRESENTLY NOT UNCOMMON MAY BE INDICATED BY THE FACT THAT
DURING THIS TERM ALONE SEVERAL CASES INVOLVING SIMILAR SYSTEMS HAVE
REACHED THIS COURT. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE HARLAN AND
MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

IN AUTOMOBILE CLUB OF MICHIGAN THE COURT POINTED OUT THAT THE METHOD
OF ACCOUNTING EMPLOYED BY THE TAXPAYER WAS "PURELY ARTIFICIAL," SO FAR
AS THE RECORD THERE SHOWED.  353 U.S., AT 189.  HERE, BY CONTRAST, THE
PETITIONER PROVED, AND THE COURT OF CLAIMS FOUND, THAT THE METHOD OF
ACCOUNTING EMPLOYED BY THE PETITIONER DURING THE YEARS IN ISSUE WAS IN
ACCORD WITH GENERALLY ACCEPTED COMMERCIAL ACCOUNTING PRINCIPLES AND
PRACTICE, WAS CUSTOMARILY EMPLOYED BY SIMILAR TAXPAYERS, AND, IN THE
OPINION OF QUALIFIED EXPERTS IN THE ACCOUNTING FIELD, CLEARLY REFLECTED
THE PETITIONER'S NET INCOME.  I DO NOT UNDERSTAND THAT THE COURT TODAY
QUESTIONS EITHER THAT PROOF OR THOSE FINDINGS.  (FN1) 

THE COURT THUS HOLDS THAT THE COMMISSIONER IS AUTHORIZED TO DISREGARD
AND OVERRIDE A METHOD OF REPORTING INCOME UNDER WHICH PREPAID DUES ARE
DEFERRED IN DIRECT RELATION TO THE TAXPAYER'S COSTS UNDER ITS
MEMBERSHIP CONTRACTS.  THE EFFECT OF THE COURT'S DECISION IS TO ALLOW
THE COMMISSIONER TO PREVENT AN ACCRUAL BASIS TAXPAYER FROM MAKING
RETURNS IN ACCORDANCE WITH THE ACCEPTED AND CLEARLY VALID ACCOUNTING
PRACTICE OF EXCLUDING FROM GROSS INCOME AMOUNTS RECEIVED AS ADVANCES
UNTIL THE RIGHT TO SUCH AMOUNTS IS EARNED BY RENDITION OF THE SERVICES
FOR WHICH THE ADVANCES WERE MADE.  TO PERMIT THE COMMISSIONER TO DO
THIS, I THINK, IS TO IGNORE THE CLEAR STATUTORY COMMAND THAT A TAXPAYER
MUST BE ALLOWED TO MAKE HIS RETURNS IN ACCORD WITH HIS REGULARLY
EMPLOYED METHOD OF ACCOUNTING, SO LONG AS THAT METHOD CLEARLY REFLECTS
HIS INCOME.  (FN2)  THE RESULT, I AM AFRAID, WILL BE TO ENGENDER FAR
REACHING CONFUSION AND INJUSTICE IN THE ADMINISTRATION OF THE INTERNAL
REVENUE LAWS.  (FN3)

         I. 

THE COMMISSIONER'S BASIC ARGUMENT AGAINST THE DEFERRED REPORTING OF
PREPAYMENTS HAS TRADITIONALLY BEEN THAT SUCH A METHOD CONFLICTS WITH A
SERIES OF DECISIONS OF THIS COURT WHICH ESTABLISH THE SO-CALLED "CLAIM
OF RIGHT DOCTRINE."  (FN4)  IN THIS CASE THE GOVERNMENT ABANDONED THAT
ARGUMENT, WITH GOOD REASON.  AS FOUR CIRCUITS HAVE CORRECTLY HELD, THE
CLAIM OF RIGHT DOCTRINE FURNISHES NO SUPPORT FOR THE GOVERNMENT'S
POSITION.  BRESSNER RADIO, INC., V. COMMISSIONER, 267 F.2D 520, 524,
525-528 (C.A.2D CIR.); SCHLUDE V. COMMISSIONER, 283 F.2D 234 (C.A. 8TH
CIR.); SCHUESSLER V. COMMISSIONER, 230 F.2D 722, 725 (C.A. 5TH CIR.);
BEACON PUBLISHING CO. V. COMMISSIONER, 218 F.2D 697, 699-701 (C.A. 10TH
CIR.).  (FN5)  A CLAIM OF RIGHT WITHOUT "RESTRICTION ON USE" MAY BE THE
CRUCIAL FACTOR IN DETERMINING THAT PARTICULAR FUNDS ARE INCLUDABLE IN
GROSS INCOME.  SEE NORTH AMERICAN OIL V. BURNET, 286 U.S. 417; UNITED
STATES V. LEWIS, 340 U.S. 590; HEALY V. COMMISSIONER, 345 U.S. 278. 
BUT IT HARDLY FOLLOWS THAT ALL SUCH FUNDS MUST NECESSARILY BE REPORTED
BY AN ACCRUAL BASIS TAXPAYER AS INCOME IN THE YEAR OF RECEIPT, WHETHER
OR NOT THEN EARNED. 

THE GOVERNMENT SHIFTED ITS ARGUMENT IN THIS CASE TO THE CONTENTION
THAT THE "ANNUAL ACCOUNTING REQUIREMENT" DEMANDS THAT "NEITHER INCOME
NOR DEDUCTION ITEMS MAY BE ACCELERATED OR POSTPONED FROM ONE TAXABLE
YEAR TO ANOTHER IN ORDER TO REFLECT THE LONG-TERM ECONOMIC RESULT OF A
PARTICULAR TRANSACTION OR GROUP OF TRANSACTIONS."  THE GOVERNMENT FINDS
A BASIS FOR THIS ARGUMENT IN SUCH CASES AS SECURITY MILLS CO. V.
COMMISSIONER, 321 U.S. 281; BROWN V. HELVERING, 291 U.S. 193; BURNET V.
SANFORD & BROOKS CO., 282 U.S. 359; GUARANTY TRUST CO. V. COMMISSIONER,
303 U.S. 493; AND HEINER V. MELLON, 304 U.S. 271. 

THE COURT TODAY DOES NOT BASE ITS DECISION ON THIS THEORY, PRESUMABLY
BECAUSE THE COURT BELIEVES, AS I DO, THAT THE THEORY IS NOT VALID. 
PUTTING TO ONE SIDE THE POINT THAT MANY OF THE CASES RELIED ON INVOLVED
CASH BASIS TAXPAYERS, (FN6) THESE DECISIONS NO MORE PERTAIN TO DEFERRED
REPORTING OF TOTALLY UNEARNED RECEIPTS THAN DO THE CLAIM OF RIGHT
DECISIONS.  THESE CASES, LIKE THE CLAIM OF RIGHT CASES, START FROM THE
PREMISE THAT THE INCOME IN QUESTION HAS BEEN FULLY EARNED.  (FN7)  THE
UNDERLYING PREMISE OF THE ANNUAL ACCOUNTING REQUIREMENT IS THAT
OTHERWISE REPORTABLE INCOME DERIVED FROM A TRANSACTION CANNOT BE
EXCLUDED FROM GROSS INCOME IN ORDER TO LET THE TAXPAYER WAIT TO SEE IN
A LATER YEAR HOW THE OVER-ALL TRANSACTION TURNS OUT.  (FN8)  THAT IS
NOT THE ISSUE IN THIS CASE.  THE QUESTION HERE IS WHETHER ANY
REPORTABLE INCOME HAS BEEN DERIVED FROM A TRANSACTION WHEN PAYMENTS ARE
RECEIVED IN ADVANCE OF PERFORMANCE. 

ALTHOUGH WISELY REJECTING THE CLAIM OF RIGHT AND ANNUAL ACCOUNTING
ARGUMENTS, THE COURT DECIDES THIS CASE UPON GROUNDS WHICH SEEM TO ME
EQUALLY INVALID.  I CAN FIND NOTHING IN AUTOMOBILE CLUB OF MICHIGAN
WHICH CONTROLS DISPOSITION OF THIS CASE.  AND THE LEGISLATIVE HISTORY
UPON WHICH THE COURT ALTERNATIVELY RELIES SEEMS TO ME UPON EXAMINATION
TO BE SINGULARLY UNCONVINCING. 

IN MICHIGAN THERE WAS NO OFFER OF PROOF TO SHOW THE RATE AT WHICH THE
TAXPAYER FULFILLED ITS OBLIGATIONS UNDER ITS MEMBERSHIP CONTRACTS.  THE
DEFERRED REPORTING OF PREPAID DUES WAS, THEREFORE, REJECTED IN THAT
CASE SIMPLY BECAUSE THERE WAS NO SHOWING OF A CORRELATION BETWEEN THE
AMOUNTS DEFERRED AND THE COSTS INCURRED BY THE TAXPAYER IN CARRYING OUT
ITS OBLIGATIONS TO ITS MEMBERS.  UNTIL TODAY, THAT CASE HAS BEEN
RECOGNIZED AS ONE THAT SIMPLY HELD THAT, IN THE ABSENCE OF PROOF THAT
THE PRORATION USED BY THE TAXPAYER REASONABLY MATCHED ACTUAL EXPENSES
WITH THE EARNING OF RELATED REVENUE, THE COMMISSIONER WAS JUSIFIED IN
REJECTING THE TAXPAYER'S PRORATION.  I AM HARDLY ALONE IN THINKING THAT
MICHIGAN WAS DECIDED UPON THE VERY PREMISE THAT A REALISTIC DEFERRAL OF
INCOME BASED UPON PROOF OF AVERAGE COSTS OF SERVICE DURING IDENTIFIABLE
PERIODS WOULD BE ENTIRELY PERMISSIBLE.  SEE BRESSNER RADIO, INC., V.
COMMISSIONER, 267 F.2D 520, 526-529.  (FN9)  SUCH PROOF WAS CONCEDEDLY
ADDUCED IN THIS CASE. 

AS TO THE ENACTMENT AND REPEAL OF SEC. 452 AND SEC. 462, UPON WHICH
THE COURT PLACES SO MUCH RELIANCE, THERE ARE, AT THE OUTSET, OBVIOUS
DIFFICULTIES IN RELYING ON WHAT HAPPENED IN 1954 AND 1955 TO ASCERTAIN
THE MEANING OF SEC. 41 OF THE 1939 CODE.  SEE FOGARTY V. UNITED STATES,
340 U.S. 8, 13-14; GEMSCO, INC., V. WALLING, 324 U.S. 244, 265;
CAMMARANO V. UNITED STATES, 358 U.S. 498, 510.  BUT THESE PROBLEMS
ASIDE, I THINK THAT THE ENACTMENT AND SUBSEQUENT REPEAL OF SEC. 452 AND
SEC. 462 GIVE NO INDICATION OF CONGRESSIONAL APPROVAL OF THE POSITION
TAKEN BY THE COMMISSIONER IN THIS CASE.  IF ANYTHING, THE LEGISLATIVE
ACTION LEADS TO THE CONTRARY IMPRESSION. 

THE STATUTORY PROVISIONS IN QUESTION WERE PASSED AS PART OF A GENERAL
REVISION OF THE INTERNAL REVENUE LAWS IN 1954.  SECTION 452 PERMITTED
AN ACCRUAL BASIS TAXPAYER TO DEFER THE INCLUSION OF ADVANCES IN GROSS
INCOME UNTIL THEY WERE EARNED.  (FN10)  MOST SIGNIFICANTLY, A TAXPAYER
COULD SHIFT TO THIS METHOD WITHOUT THE CONSENT OF THE COMMISSIONER. 
NOT AIMED SPECIFICALLY AT THE PROBLEM OF REPORTING ADVANCES.  (FN11)
THE FUNCTION OF THE PROVISIONS WAS TO BRING "TAX ACCOUNTING  ...  MORE
NEARLY IN LINE WITH ACCEPTED BUSINESS ACCOUNTING BY ALLOWING PREPAID
INCOME TO BE TAXED AS IT IS EARNED RATHER THAN AS IT IS RECEIVED, AND
BY ALLOWING RESERVES TO BE ESTABLISHED FOR KNOWN FUTURE EXPENSES." 
(FN12)   IN SEEKING TO ACCOMPLISH THIS OBJECTIVE, CONGRESS RECOGNIZED
THAT AS A RESULT OF "COURT DECISIONS AND RULINGS," THE CLAIM OF RIGHT
APPROACH HAD BEEN USED TO REQUIRE REPORTING FOR THE YEAR OF RECEIPT ALL
PAYMENTS "SUBJECT TO FREE AND UNRESTRICTED USE  ...  EVEN THOUGH THE
PAYMENTS ARE FOR GOODS OR SERVICES TO BE PROVIDED BY THE TAXPAYER AT A
FUTURE TIME."  H.R. REP. NO. 1337, 83D CONG., 2D SESS. 48, A159. 
(FN13)  CONGRESSIONAL AWARENESS OF ADMINISTRATIVE AND JUDICIAL
MISAPPLICATION OF THE CLAIM OF RIGHT DOCTRINE CLEARLY DID NOT IMPLY
APPROVAL OF IT.  FOR BY 1954, "IT WAS LONG RECOGNIZED THAT THE
DIFFICULTY LAY, NOT WITH THE STATUTE, BUT WITH ADMINISTRATIVE AND COURT
INTERPRETATION."  (FN14)  AND WHILE THE COMMITTEE REPORTS CONTAIN NO
EXPRESS REJECTION OF THE COMMISSIONER'S INTERPRETATION OF THE 1939
STATUTE, THE LANGUAGE USED IN EXPLAINING THE NEED FOR A CHANGE
CERTAINLY INDICATES DISAPPROVAL.  (FN15) 

ALTHOUGH SEC. 452 AND SEC. 462 WERE SHORT-LIVED, THE SHAPE OF THE
DECISIONAL LAW WITH RESPECT TO SEC. 41 OF THE 1939 CODE CHANGED
CONSIDERABLY DURING THE INTERVAL BETWEEN THE PASSAGE AND REPEAL OF THE
NEW SECTIONS.  IN BEACON PUBLISHING CO. V. COMMISSIONER, 218 F.2D 697,
THE TENTH CIRCUIT REJECTED THE COMMISSIONER'S RELIANCE ON THE CLAIM OF
RIGHT RATIONALE AND FOUND THAT THE DEFERMENT OF ADVANCES IN ACCORD WITH
ACCRUAL PRINCIPLES DID "CLEARLY REFLECT  ...  INCOME" UNDER SEC. 41. 
AT ABOUT THE SAME TIME A NINTH CIRCUIT DECISION PERMITTED INCOME
RECEIVED FROM THE SALE OF GOODS TO BE OFFSET BY A DEDUCTION FOR THE
FUTURE EXPENSE OF SHIPPING THE GOODS.  PACIFIC GRAPE PRODUCTS CO. V.
COMMISSIONER, 219 F.2D 862. 

WHEN CONGRESS REPEALED SEC. 452 AND SEC. 462, THE RECORD SHOWS THAT
IT WAS FULLY AWARE OF THESE DECISIONS.  CONGRESS RECOGNIZED THAT THE
RATIONALE OF THESE CASES WOULD PRODUCE A COMPLETE REVERSAL OF THE
PREVIOUS ADMINISTRATIVE POSITION WITH RESPECT TO THE REPORTING OF
UNEARNED RECEIPTS UNDER SEC. 41 AND ITS COUNTERPART UNDER THE 1954
CODE, SEC. 446.  CONGRESSIONAL INTENT WITH RESPECT TO THIS POSSIBILITY
WAS ENTIRELY CLEAR - THE TREND OF JUDICIAL DECISIONS SHOULD BE ALLOWED
TO RUN ITS COURSE WITHOUT ANY INFERENCE OF DISAPPROVAL BEING DRAWN FROM
THE REPEAL OF SEC. 452 AND SEC. 462.  THIS INTENT WAS EVIDENCED IN THE
ASSURANCES WHICH THE HOUSE WAYS AND MEANS COMMITTEE DEMANDED AND
RECEIVED FROM THE SECRETARY OF THE TREASURY, WHO HAD SOUGHT THE REPEAL
OF THE TWO SECTIONS.  IN A LETTER TO THE CHAIRMAN OF THE COMMITTEE, THE
SECRETARY STATED: 

"MY DEAR MR. CHAIRMAN:  THIS LETTER WILL CONFIRM THE STATEMENTS MADE
TO YOU TODAY BY TREASURY REPRESENTATIVES. 

     *         *         *         *        * 

"FURTHERMORE, THE TREASURY DEPARTMENT WILL NOT CONSIDER THE REPEAL OF
TREATMENT OF PREPAID SUBSCRIPTIONS AND OTHER ITEMS OF PREPAID INCOME,
EITHER UNDER PRIOR LAW OR UNDER OTHER PROVISIONS OF THE 1954 CODE.  IN
OTHER WORDS, THE REPEAL OF SECTION 452 WILL NOT BE CONSIDERED BY THE
DEPARTMENT AS EITHER THE ACCEPTANCE OR THE REJECTION BY CONGRESS OF THE
DECISION IN BEACON PUBLISHING CO. V. COMMISSIONER (218 F.(2D) 697, C.A.
10, 1955) OR ANY OTHER JUDICIAL DECISIONS. 

"IT IS MY UNDERSTANDING THAT THE FOREGOING IS CONSISTENT WITH THE
DESIRE OF YOUR COMMITTEE, WITH WHICH I AGREE, THAT THE REPEAL OF
PRINCIPLES OF LAW WHICH WOULD HAVE BEEN APPLICABLE IF SECTIONS 452 AND
462 HAD NEVER BEEN ENACTED."  H.R. REP. NO. 293, 84TH CONG., 1ST SESS.
5. 

THE SAME VIEWPOINT WAS EXPRESSED IN THE SENATE REPORT, WHICH STATED: 

"ANOTHER ASPECT OF THE UNCERTAINTY WITH RESPECT TO SUBSCRIPTION
INCOME IF SECTION 452 IS REPEALED ARISES FROM A RECENT CIRCUIT COURT
DECISION IN BEACON PUBLISHING COMPANY V. COMMISSIONER (C.C.A. 10TH,
JANUARY 3, 1955).  THE COURT IN THIS CASE HELD THAT THE DEFERRAL OF
PREPAID SUBSCRIPTION INCOME WAS IN FACT PROPER UNDER THE ACCRUAL METHOD
OF ACCOUNTING.  THE SECRETARY OF THE TREASURY IN THE LETTER PREVIOUSLY
REFERRED TO WHICH HE SENT TO THE CHAIRMAN OF THE HOUSE COMMITTEE ON
WAYS AND MEANS INDICATED THAT THE REPEAL OF SECTION 452 WOULD NOT BE
TAKEN AS AN INDICATION BY THE TREASURY DEPARTMENT OF CONGRESSIONAL
INTENT AS TO THE PROPER TREATMENT OF PREPAID SUBSCRIPTION INCOME UNDER
PRIOR LAW OR UNDER OTHER PROVISIONS OF THE 1954 CODE.  HE ALSO
INDICATED THAT THE REPEAL OF SECTION 452 WILL NOT BE CONSIDERED BY THE
DEPARTMENT AS EITHER ACCEPTANCE OR REJECTION BY CONGRESS OF THE
DECISION IN BEACON PUBLISHING COMPANY V. COMMISSIONER OR IN ANY OTHER
JUDICIAL DECISIONS  ...  . 

"UNCERTAINTY WILL ALSO EXIST IN OTHER AREAS WITH THE REPEAL OF THESE
TWO PROVISIONS.  IN PACIFC GRAPE PRODUCTS (C.C.A. 9TH, FEBRUARY 10,
1955), FOR EXAMPLE, THE CIRCUIT COURT HELD THAT CERTAIN FREIGHT AND
SHIPPING EXPENSES INCURRED AFTER THE END OF THE YEAR COULD BE ACCRUED
FOR TAX PURPOSES AS OF THE END OF THE YEAR.  AN EXTENSION OF THE
PRINCIPLES LAID DOWN IN THIS CASE MIGHT WELL LEAD THE COURTS IN THE
FUTURE TO PERMIT THE ACCRUAL OF MOST ESTIMATED EXPENSES WHICH WOULD BE
COVERED BY SECTION 462 EVEN THOUGH THIS SECTION IS REPEALED."  S. REP.
NO. 372, 84TH CONG., 1ST SESS. 5-6.  (FN16) 

TO MY MIND, THIS LEGISLATIVE HISTORY SHOWS THAT CONGRESS MADE EVERY
EFFORT TO DISSUADE THE COURTS FROM DOING EXACTLY WHAT THE COURT IS
DOING IN THIS CASE - DRAWING FROM THE REPEAL OF SEC. 452 AN INFERENCE
OF CONGRESSIONAL DISAPPROVAL OF DEFERRED REPORTING OF ADVANCES.  (FN17)
BUT EVEN IF THE LEGISLATIVE HISTORY ON THIS POINT WERE HAZY, THE SAME
CONCLUSION WOULD HAVE TO BE REACHED UPON EXAMINATION OF CONGRESSIONAL
PURPOSE IN REPEALING SEC. 452 AND SEC. 462.  CF.  UNITED STATES V.
BENEDICT, 338 U.S. 692, 696.  FOR THE FACT OF THE MATTER IS, CONTRARY
TO THE IMPRESSION LEFT BY THE COURT'S OPINION, THAT THE REASONS FOR
REJECTING SEC. 452 AND SEC. 462 WERE ENTIRELY CONSISTENT WITH ACCEPTING
THE DEFERRED REPORTING OF RECEIPTS IN A CASE LIKE THIS.  SECTIONS 452
AND 462 WERE REPEALED SOLELY BECAUSE OF A PROSPECTIVE LOSS OF REVENUE
DURING THE FIRST YEAR IN WHICH TAXPAYERS WOULD TAKE ADVANTAGE OF THE
NEW SECTIONS.  (FN18)  INSOFAR AS THE REPORTING OF ADVANCES WAS
CONCERNED, THAT LOSS OF REVENUE WOULD HAVE OCCURRED SOLELY AS A
CONSEQUENCE OF TAXPAYERS CHANGING THEIR METHOD OF REPORTING, WITHOUT
THE NECESSITY OF SECURING THE COMMISSIONER'S CONSENT, TO THAT
AUTHORIZED UNDER SEC. 452 AND SEC. 462.  (FN19)  THE TAXPAYER WHO
SHIFTED HIS BASIS FOR REPORTING ADVANCES WOULD HAVE BEEN ALLOWED WHAT
WAS COMMONLY TERMED A "DOUBLE DEDUCTION" DURING THE TRANSITIONAL YEAR. 
(FN20)  UNDER SEC. 462, DEDUCTIONS COULD BE TAKEN IN THE YEAR OF CHANGE
FOR EXPENSES ATTRIBUTABLE TO ADVANCES TAXED IN PRIOR YEARS UNDER A
CLAIM OF RIGHT THEORY, AS WELL AS FOR RESERVES FOR FUTURE EXPENDITURES
ATTRIBUTABLE TO ADVANCES RECEIVED AND REPORTED DURING THAT YEAR. 
SIMILARLY, UNDER SEC. 452, PREPAYMENTS RECEIVED DURING THE YEAR OF
TRANSITION WOULD BE EXCLUDED FROM GROSS INCOME WHILE CURRENT
EXPENDITURES ATTRIBUTABLE TO PAST INCOME WOULD STILL BE DEDUCTIBLE. 
(FN21) 

THE CONGRESSIONAL PURPOSE IN REPEALING SEC. 452 AND SEC. 462 -
MAINTENANCE OF THE REVENUES - DOES NOT, HOWEVER, REQUIRE DISAPPROVAL OF
SOUND ACCOUNTING PRINCIPLES IN CASES OF TAXPAYERS WHO, LIKE THE
PETITIONER, HAVE CUSTOMARILY AND REGULARLY USED A SOUND ACCRUAL
ACCOUNTING METHOD IN REPORTING ADVANCE PAYMENTS.  NO TRANSITION IS
INVOLVED, AND NO "DOUBLE DEDUCTION" IS POSSIBLE.  MOREOVER, TAXPAYERS
FORMERLY REPORTING ADVANCES AS INCOME IN THE YEAR OF RECEIPT CAN NOW
SHIFT TO A TRUE ACCRUAL SYSTEM OF REPORTING ONLY WITH THE APPROVAL OF
THE COMMISSIONER.  SEE TREAS. REG. 111, SEC. 29.41-2 (1943); TREAS.
REG. 118, SEC. 39.41-2(C)(1953); INT. REV. CODE OF 1954, SEC. 446(E). 
(FN22)  BEFORE GIVING HIS APPROVAL THE COMMISSIONER CAN BE EXPECTED TO
INSIST UPON ADJUSTMENTS IN THE TAXPAYER'S TRANSITION YEAR TO FORESTALL
ANY REVENUE LOSS WHICH WOULD OTHERWISE RESULT FROM THE CHANGE IN
ACCOUNTING METHOD.  SEE KAHUKA PLANTATION CO. V. COMMISSIONER, 132 F.2D
671, 674; 2 MERTENS, LAW OF FEDERAL INCOME TAXATION, SECS. 12.21,
12.21A.  CF. BROWN V. HELVERING, 291 U.S. 193, 204. 

IN SHORT, EVEN IF THE LEGISLATIVE HISTORY OF THE REPEAL OF SEC. 452
AND SEC. 462 DID NOT CLEARLY INDICATE, AS IT DOES, THAT THE REPEAL OF
THOSE SECTIONS SHOULD HAVE NO BEARING UPON JUDICIAL DETERMINATION OF
WHETHER THE DEFERRED REPORTING OF ADVANCES "CLEARLY REFLECTS INCOME,"
THE PURPOSE OF THE CONGRESS WHICH REPEALED THOSE PROVISIONS WOULD LEAD
TO THE SAME CONCLUSION.  IT NEED HARDLY BE ADDED THAT THE SUBSEQUENT
LEGISLATIVE ACTIVITY CITED BY THE COURT IN NO WAY ALTERS THIS
CONCLUSION.  CONTRARY TO THE COURT'S SUGGESTION, THE "RELIEF THAT THE
ASSOCIATION SEEKS IN THIS COURT" IS FAR SHORT OF WHAT WAS SOUGHT IN
1958 IN URGING THAT THE COVERAGE OF SEC. 455 BE EXTENDED TO PREPAID
AUTOMOBILE CLUB MEMBERSHIP DUES.  AS ENACTED, SEC. 455 WAS NOT LIMITED
IN APPLICATION TO PUBLISHERS PREVIOUSLY REPORTING PREPAID SUBSCRIPTIONS
ON A DEFERRAL BASIS.  SEE I.T. 3369, 1940-1 CUM. BULL.  46.  IT APPLIED
TO ALL PUBLISHERS USING THE ACCRUAL METHOD AND PERMITTED A CHANGE TO
DEFERRED REPORTING OF SUBSCRIPTIONS FOR THE YEAR 1958 WITHOUT CONSENT
OF THE COMMISSIONER.  26 U.S.C. SEC. 455(C)(3)(B). 

          II. 

I THINK THE GOVERNMENT'S POSITION IN THIS CASE IS AT ODDS WITH THE
STATUTES, (FN23) REGULATIONS, (FN24) AND COURT DECISIONS, (FN25) WHICH,
SINCE 1916, HAVE RECOGNIZED THAT REALISTIC ACCRUAL ACCOUNTING DOES
"CLEARLY REFLECT INCOME."  IF I AM CORRECT, THE LAW DID NOT GIVE THE
COMMISSIONER ANY "DISCRETION  ...  NOT TO ACCEPT THE TAXPAYER'S
ACCOUNTING SYSTEM." 

THE BASIC CONCEPT OF INCLUDING ADVANCES IN GROSS INCOME ONLY AS THEY
ARE EARNED IS BUT AN ASPECT OF ACCRUAL ACCOUNTING PRINCIPLES WHICH HAVE
CONSISTENTLY RECEIVED JUDICIAL APPROVAL.  WE HAVE, FOR EXAMPLE, OFTEN
RECOGNIZED THAT DEDUCTIONS FOR BUSINESS EXPENSES MUST BE REPORTED AS
SOON AS THE OBLIGATION TO PAY BECOMES "CERTAIN."  SEE, E.G., UNITED
STATES V. ANDERSON, 269 U.S. 422; AMERICAN NATIONAL CO. V. UNITED
STATES, 274 U.S. 99; NILES BEMENT POND CO. V. UNITED STATES, 281 U.S.
357, 360; UNITED STATES V. OLYMPIC RADIO & TELEVISION, 349 U.S. 232,
236.  THIS MAY BE BEFORE OR AFTER CASH PAYMENT IS MADE, (FN26) OR EVEN
BEFORE IT IS DUE.  (FN27)  THE CONTROLLING FACTOR IS NOT THE FLOW OF
CASH, BUT THE "ECONOMIC AND BOOKKEEPING" PRINCIPLES WITH WHICH SEC. 41
IS CONCERNED.  UNITED STATES V. ANDERSON, SUPRA, AT 441.  SEE ALSO
AMERICAN NATIONAL CO. V. UNITED STATES, SUPRA.  THESE PRINCIPLES ARE AT
THE FOUNDATION OF THE SO-CALLED "ALL EVENTS" TEST FOR DETERMINING THE
ACCRUAL OF DEDUCTIONS.  SEE UNITED STATES V. ANDERSON, SUPRA, AT 441;
(FN28) UNITED STATES V. CONSOLIDATED EDISON CO., 366 U.S. 380, 384
386.  THE SAME PRINCIPLES ARE APPLICABLE TO THE ACCRUAL OF INCOME.  SEE
CONTINENTAL TIE & L. CO. V. UNITED STATES, 286 U.S. 290.  AS HAS BEEN
CORRECTLY NOTED, "IT IS A NECESSARY COROLLARY OF THIS 'ECONOMIC AND
BOOKKEEPING' PROPOSITION" UPON WHICH ANDERSON RESTED THAT RECEIPTS ARE
NOT REPORTABLE IN INCOME UNTIL "SUBSTANTIALLY 'ALL THE EVENTS' HAVE
OCCURRED, BOTH AS TO THE COST AND TIME OF PERFORMANCE, WHICH MUST OCCUR
IN ORDER TO DISCHARGE THE LIABILITY TO PERFORM WHICH WAS GIVEN BY THE
TAXPAYER IN RETURN FOR THE RECEIPT."  BRESSNER RADIO, INC., V.
COMMISSIONER, 267 F.2D 520, 524.  SEE ALSO UNITED STATES V. ANDERSON,
SUPRA, AT 440; BEACON PUBLISHING CO. V. COMMISSIONER, 218 F.2D 697,
699.  INDEED, "ACCRUAL" OF INCOME HAS BEEN COMMONLY DEFINED IN TERMS OF
"EARNINGS" FROM THE SALE OF GOODS OR THE PERFORMANCE OF SERVICES.  SEE,
E.G., SPRING CITY CO. V. COMMISSIONER, 292 U.S. 182, 184-185; STANLEY
AND KILCULLEN, THE FEDERAL INCOME TAX (3D ED. 1955), 190.  (FN29)  IN
REJECTING PETITIONER'S METHOD OF ALLOCATING PREPAID ADVANCES, THE
COURT, I THINK, DISREGARDS THESE BASIC PRINCIPLES. 

THE NET EFFECT OF COMPELLING THE PETITIONER TO INCLUDE ALL DUES IN
GROSS INCOME IN THE YEAR RECEIVED IS TO FORCE THE PETITIONER TO UTILIZE
A HYBRID ACCOUNTING METHOD - A CASH BASIS FOR DUES AND AN ACCRUAL BASIS
FOR ALL OTHER ITEMS.  SCHLUDE V. COMMISSIONER, 283 F.2D 234, 239.  CF.
COMMISSIONER V. SOUTH TEXAS CO., 333 U.S. 496, 501.  FOR TAXPAYERS
GENERALLY THE ENFORCEMENT OF SUCH A HYBRID ACCOUNTING METHOD MAY RESULT
IN A GROSS DISTORTION OF ACTUAL INCOME, PARTICULARLY IN THE FIRST AND
LAST YEARS OF DOING BUSINESS.  ON THE RETURN FOR THE FIRST YEAR IN
WHICH ADVANCES ARE RECEIVED, A TAXPAYER WILL HAVE TO REPORT AN
UNREALISTICALLY HIGH NET INCOME, SINCE HE WILL HAVE TO INCLUDE UNEARNED
RECEIPTS, WITHOUT ANY OFFSETTING DEDUCTIONS FOR THE FUTURE COST OF
EARNING THOSE RECEIPTS.  ON SUBSEQUENT TAX RETURNS, EACH YEAR'S
UNEARNED PREPAYMENTS WILL BE PARTIALLY OFFSET BY THE DEDUCTION OF
CURRENT EXPENSES ATTRIBUTABLE TO PREPAYMENTS TAXED IN PRIOR YEARS. 
EVEN THEN, HOWEVER, IF THE TAXPAYER IS FORBIDDEN TO CORRELATE EARNINGS
WITH RELATED EXPENDITURES, THE RESULT WILL BE A DISTORTION OF NORMAL
FLUCTUATIONS IN THE TAXPAYER'S NET INCOME.  FOR EXAMPLE, IN A YEAR WHEN
THERE ARE LOW CURRENT EXPENDITURES BECAUSE OF FEWER ADVANCES RECEIVED
IN THE PRECEDING YEAR, THE RESULT MAY BE AN INFLATED ADJUSTED GROSS
INCOME FOR THE CURRENT YEAR.  FINALLY, SHOULD THE TAXPAYER DECIDE TO GO
OUT OF BUSINESS UPON FULFILLMENT OF THE CONTRACTUAL OBLIGATIONS ALREADY
UNDERTAKEN, IN THE FINAL YEAR THERE WILL BE NO ADVANCES TO REPORT AND
MANY COSTS ATTRIBUTABLE TO ADVANCES RECEIVED IN PRIOR YEARS.  THE
RESULT WILL BE A GROSSLY UNREALISTIC REPORTABLE NET LOSS. 

THE COURT SUGGESTS THAT THE APPLICATION OF SOUND ACCRUAL PRINCIPLES
CANNOT BE ACCEPTED HERE BECAUSE DEFERMENT IS BASED ON AN ESTIMATED RATE
OF EARNINGS, AND BECAUSE THIS ESTIMATE, IN TURN, IS BASED ON AVERAGE,
NOT INDIVIDUAL, COSTS.  IT IS TRUE, OF COURSE, THAT THE PETITIONER
CANNOT KNOW WHAT SERVICE AN INDIVIDUAL MEMBER WILL REQUIRE OR WHEN HE
WILL DEMAND IT.  ACCORDINGLY, IN DETERMINING THE PORTION OF ITS
OUTSTANDING CONTRACTUAL OBLIGATIONS WHICH HAVE BEEN DISCHARGED DURING A
PARTICULAR PERIOD (AND HENCE THE PORTION OF RECEIPTS EARNED DURING THAT
PERIOD), THE PETITIONER CAN ONLY COMPARE THE TOTAL EXPENDITURES FOR
THAT PERIOD AGAINST ESTIMATED AVERAGE EXPENDITURES FOR THE SAME NUMBER
OF MEMBERS OVER A FULL CONTRACT TERM.  BUT THIS USE OF ESTIMATES AND
AVERAGES IS IN NO WAY INCONSISTENT WITH LONG-ACCEPTED ACCOUNTING
PRACTICES IN REFLECTING AND REPORTING INCOME.    AS THE GOVERNMENT HAS
POINTED OUT IN PAST LITIGATION, "MANY BUSINESS CONCERNS  ...  KEEP
ACCOUNTS ON AN ACCRUAL BASIS AND HAVE TO ESTIMATE FOR THE TAX YEAR THE
AMOUNT TO BE RECEIVED ON TRANSACTIONS UNDOUBTEDLY ALLOCABLE TO SUCH
YEAR."  CONTINENTAL TIE & L. CO. V. UNITED STATES, 286 U.S. 290, 295
296.  SIMILARLY, THE DEDUCTION OF FUTURE EXPENDITURES WHICH HAVE
ALREADY ACCRUED OFTEN REQUIRES ESTIMATES LIKE THOSE INVOLVED HERE. 
SEE, E.G., HARROLD V. COMMISSIONER, 192 F.2D 1002; SCHUESSLER V.
COMMISSIONER, 230 F.2D 722; DENISE COAL CO. V. COMMISSIONER, 271 F.2D
930, 934-937; HILINSKI V. COMMISSIONER, 237 F.2D 703.  FINALLY, IT IS
TO BE NOTED THAT THE REGULATIONS UNDER BOTH THE 1939 AND 1954 CODES
PERMIT VARIOUS METHODS OF REPORTING INCOME WHICH REQUIRE THE USE OF
ESTIMATES.  (FN30) IN THE ABSENCE OF ANY SHOWING THAT THE ESTIMATES
USED HERE WERE FAULTY, I THINK THE LAW DID NOT PERMIT THE COMMISSIONER
TO FORBID THE USE OF STANDARD ACCRUAL METHODS SIMPLY UPON THE GROUND
THAT ESTIMATES WERE NECESSARY TO DETERMINE WHAT THE RATE OF DEFERRAL
SHOULD BE. 

SIMILARLY, IT IS NOT RELEVANT THAT THE PETITIONER "DEFERS RECEIPT
...  OF DUES TO A TAXABLE PERIOD IN WHICH NO, SOME, OR ALL THE SERVICES
PAID FOR BY THOSE DUES MAY OR MAY NOT BE RENDERED."  THE FACT OF THE
MATTER IS THAT WHAT THE PETITIONER HAS AN OBLIGATION TO PROVIDE, I.E.,
THE CONSTANT READINESS OF SERVICES IF NEEDED, WILL WITH CERTAINTY BE
PROVIDED DURING THE PERIOD TO WHICH DEFERMENT HAS BEEN MADE.  AVERAGES
ARE FREQUENTLY UTILIZED IN TAX REPORTING.  IN COMPUTING THE VALUE OF
WORK IN PROCESS, IN DISTRIBUTING OVERHEAD TO PRODUCT COST, AND IN
VARIOUS OTHER AREAS, THE USE OF AVERAGES HAS LONG BEEN ACCEPTED.  SEE,
E.G., ROOKWOOD POTTERY CO. V. COMMISSIONER, 45 F.2D 43; EATONVILLE
LUMBER CO. V. COMMISSIONER, 10 B.T.A. 232.  THE USE OF AN "AVERAGE
COST" IS PARTICULARLY APPROPRIATE HERE WHERE THE DUES ARE EARNED BY
MAKING SERVICES CONTINUOUSLY AVAILABLE.  THE COST OF DOING SO MUST
NECESSARILY BE BASED ON COMPOSITE FIGURES. 

FOR THESE REASONS I THINK THAT THE PETITIONER'S ORIGINAL RETURNS
CLEARLY REFLECTED ITS INCOME, THAT THE COMMISSIONER WAS THEREFORE
WITHOUT AUTHORITY UNDER THE LAW TO OVERRIDE THE PETITIONER'S ACCOUNTING
METHOD, AND THAT THE JUDGMENT SHOULD BE REVERSED. 

FN1 THE COURT DOES NOT, FOR EXAMPLE, CHALLENGE FINDING NO. 26 OF THE
COURT OF CLAIMS: 

"HAD THE PLAINTIFF RECOGNIZED, ASSIGNED AND TRANSFERRED TO ITS GROSS
INCOME ACCOUNT ITS MONTHLY RECEIPTS OF DUES COLLECTED IN ADVANCE IN THE
PROPORTION TO ITS COST OF SERVICING ALL OF ITS MEMBERS EACH MONTH,
INSTEAD OF RATABLY OVER THE MEMBERSHIP PERIOD OF 12 MONTHS, THE
PROPORTION OF ADVANCE DUES WHICH WOULD HAVE BEEN RECOGNIZED AND
ASSIGNED TO GROSS INCOME DURING THE YEARS IN ISSUE HEREIN WOULD HAVE
BEEN SUBSTANTIALLY THE SAME AS THE GROSS INCOME FROM DUES AS DETERMINED
AND REPORTED BY THE PLAINTIFF UNDER THE METHOD OF ACCOUNTING ACTUALLY
EMPLOYED." 

FN2  INT. REV. CODE OF 1939, SEC. 41, 53 STAT. 24; INT. REV. CODE OF
1954, SEC. 446, 26 U.S.C. SEC. 446. 

FN3  THE SCOPE OF THE PROBLEM IS WELL ILLUSTRATED BY THE REPORTED
CASES.  SEE, E.G., SOUTH DADE FARMS V. COMMISSIONER, 138 F.2D 818 (RENT
RECEIVED IN ADVANCE); CLAY SEWER PIPE ASSN. V. COMMISSIONER, 139 F.2D
130 (SUBSCRIPTIONS FOR PROMOTION CAMPAIGN TO BE CONSUMMATED IN YEARS
SUBSEQUENT TO RECEIPT); BEACON PUBLISHING CO. V. COMMISSIONER, 218 F.2D
697 (ADVANCE NEWSPAPER SUBSCRIPTION PAYMENTS); BRESSNER RADIO, INC., V.
COMMISSIONER, 267 F.2D 520 (ADVANCE PAYMENTS IN A TELEVISION SERVICING
CONTRACT); SCHLUDE V. COMMISSIONER, 283 F.2D 234 (FEES FOR DANCING
LESSONS PAID IN ADVANCE); MORITZ V. COMMISSIONER, 21 T.C. 622
("CUSTOMERS' DEPOSITS" ON UNDEVELOPED PHOTOGRAPHS); SOUTH TACOMA MOTOR
CO. V. COMMISSIONER, 3 T.C. 411 (PROCEEDS FROM SALE OF COUPONS
ENTITLING BEARER TO GARAGE SERVICES IN LATER YEARS); YOUR HEALTH CLUB,
INC. V. COMMISSIONER, 4 T.C. 385 (ADVANCE PAYMENTS FOR USE OF GYM AND
OTHER FACILITIES); NORTHERN ILLINOIS COLLEGE OF OPTOMETRY V.
COMMISSIONER, 2 CCH TAX CT. MEM. 664 (TUITION PAID IN ADVANCE). 

FN4  ALMOST ALL OF THE DECISIONS SUSTAINING THE COMMISSIONER'S
DISALLOWANCE OF DEFERRED REPORTING OF ADVANCES BY ACCRUAL BASIS
TAXPAYERS HAVE RELIED ON THE CLAIM OF RIGHT DOCTRINE.  SEE, E.G.,
ANDREWS V. COMMISSIONER, 23 T.C. 1026, 1032-1033; SOUTH DADE FARMS V.
COMMISSIONER, 138 F.2D 818 (C.A. 5TH CIR.)(BUT COMPARE SCHUESSLER V.
COMMISSIONER, 230 F.2D 722 (C.A. 5TH CIR.)); CLAY SEWER PIPE ASSN. V.
COMMISSIONER, 139 F.2D 130 (C.A. 3D CIR.); AUTOMOBILE CLUB OF MICHIGAN
V. COMMISSIONER, 230 F.2D 585, 591 (C.A. 6TH CIR.), AFF'D ON OTHER
GROUNDS, 353 U.S. 180.  THE TAX COURT HAS CARRIED THE CLAIM OF RIGHT
DOCTRINE TO THE POINT WHERE IT WAS FOUND APPLICABLE TO ADVANCE FEES
WHICH WERE DUE BUT NOT YET PAID.  YOUR HEALTH CLUB, INC. V.
COMMISSIONER, 4 T.C. 385. 

FN5  THE REJECTION OF THE APPLICABILITY OF THE CLAIM OF RIGHT
DOCTRINE IN THESE CASES HAS BEEN ENTHUSIASTICALLY APPROVED BY LEGAL
COMMENTATORS.  SEE, E.G., GELFAND, THE "CLAIM OF RIGHT" DOCTRINE, 33
TAXES 726; WOLDER, DEDUCTION OF RESERVES FOR FUTURE EXPENSES AND
DEFERRING OF PREPAID INCOME, 34 TAXES 524; NOTE, 59 COL. L. REV. 942,
946.  BUT CF. FREEMAN, TAX ACCRUAL ACCOUNTING FOR CONTESTED ITEMS, 56
MICH. L. REV. 727, 730-732, 747. 

FN6  SEE, E.G., GUARANTY TRUST CO. V. COMMISSIONER, 303 U.S. 493;
BURNET V. SANFORD & BROOKS CO., 282 U.S. 359.  IN THE LATTER CASE, THE
COURT TOOK SPECIAL NOTICE OF THE FACT THAT THE TAXPAYER HAD NOT
"ATTEMPTED TO AVAIL ITSELF" OF THE ACCRUAL SYSTEM UNDER WHICH "EXPENSES
OF A TRANSACTION INCURRED IN ONE YEAR MIGHT BE OFFSET BY THE AMOUNTS
ACTUALLY RECEIVED FROM IT IN ANOTHER."  282 U.S., AT 366.  IN SECURITY
MILLS CO. V. COMMISSIONER, 321 U.S. 281, THE TAXPAYER WAS ATTEMPTING TO
USE WHAT THE COURT DESCRIBED AS "A DIVIDED AND INCONSISTENT METHOD OF
ACCOUNTING NOT PROPERLY TO BE DENOMINATED EITHER A CASH OR AN ACCRUAL
SYSTEM."  321 U.S., AT 287.  IN BROWN V. HELVERING, 291 U.S. 193, THE
TAXPAYER WAS ON AN ACCRUAL BASIS GENERALLY, BUT ITS ASSERTION OF A
RIGHT TO DEFER REPORTING "OVERRIDING COMMISSIONS" CONSTITUTED A CHANGE
IN ACCOUNTING PROCEDURES AS TO THE ACCEPTANCE OF WHICH THE COMMISSIONER
WAS SAID TO HAVE "WIDE DISCRETION."  291 U.S., AT 204.  SEE THE
DISCUSSION IN BRESSNER RADIO, INC., V. COMMISSIONER, 267 F.2D 520, 525
526. 

FN7  WITH THE POSSIBLE EXCEPTION OF CONTINGENT RELATED EXPENDITURES,
WHICH CANNOT BE ACCURATELY MEASURED.  SEE BROWN V. HELVERING, 291 U.S.
193, 200-201. 

FN8  THIS BECOMES ENTIRELY CLEAR UPON EXAMINATION OF THE CASES UPON
WHICH THE GOVERNMENT RELIES.  FOR EXAMPLE, IN HEINER V. MELLON, 304
U.S. 271, MEMBERS OF PARTNERSHIPS WHICH HAD BEEN FORMED TO LIQUIDATE
TWO CORPORATIONS ATTEMPTED TO DEFER REPORTING INCOME EARNED DURING THE
YEAR UNTIL IT COULD BE DETERMINED IN A SUBSEQUENT YEAR WHETHER THE
PARTNERSHIPS' OVER-ALL LIQUIDATION ENTERPRISE HAD BEEN PROFITABLE.  THE
COURT HELD THAT SUCH A POSTPONEMENT WAS BARRED BY THE ANNUAL ACCOUNTING
PRINCIPLE.  IN SECURITY MILLS CO. V. COMMISSIONER, 321 U.S. 281, THE
TAXPAYER ATTEMPTED TO REOPEN A PRIOR YEAR'S RETURN SO AS TO DEDUCT
AMOUNTS WHICH IT HAD SUBSEQUENTLY PAID OUT OF RECEIPTS EARNED IN THAT
YEAR.  AGAIN THE COURT RELIED ON THE ANNUAL ACCOUNTING PRINCIPLE IN
DENYING THE TAXPAYER'S CLAIM. 

FN9  SEE ALSO HOFFMAN, ACCOUNTING TREATMENT COUNTS IN DETERMINING NET
TAXABLE INCOME, 35 TAXES 918, 921; BEHREN, PREPAID INCOME-ACCOUNTING
CONCEPTS AND THE TAX LAW, 15 TAX L. REV. 343, 359-360; NOTE, 67 YALE
L.J. 1425, 1439-1440. 

FN10  THERE WERE CERTAIN RESTRICTIONS UPON THE PERIOD OVER WHICH THE
ADVANCES COULD BE DEFERRED, BUT THESE ARE NOT RELEVANT FOR OUR PURPOSES
HERE.  SEE PROPOSED TREAS. REG. SEC. 1.452, 20 FED. REG. 515; WOLDER,
DEDUCTION OF RESERVES FOR FUTURE EXPENSES AND DEFERRING OF PREPAID
INCOME, 34 TAXES 524; BIERMAN AND HELSTEIN, ACCOUNTING FOR PREPAID
INCOME AND ESTIMATED EXPENSES UNDER THE INTERNAL REVENUE CODE OF 1954,
10 TAX L. REV. 83, 93-96.  SECTION 452 SPECIFICALLY ENVISAGED THE
DEFERRAL OF CLUB DUES.  SEE H.R. REP. NO. 1337, 83D CONG., 2D SESS.
48. 

FN11  SEE, E.G., S. REP. NO. 372, 84TH CONG., 1ST SESS. 2.  SECTION
462 PROVIDED THAT, "IN COMPUTING TAXABLE INCOME FOR THE TAXABLE YEAR,
THERE SHALL BE TAKEN INTO ACCOUNT (IN THE DISCRETION OF THE SECRETARY
OR HIS DELEGATE) A REASONABLE ADDITION TO EACH RESERVE FOR ESTIMATED
EXPENSES  ... ."  SEC. 462(A), 68A STAT. 158.  "ESTIMATED EXPENSE" WAS
DEFINED AS A DEDUCTION "(A) PART OR ALL OF WHICH WOULD  ...  BE
REQUIRED TO BE TAKEN INTO ACCOUNT FOR A SUBSEQUENT TAXABLE YEAR; (B)
WHICH IS ATTRIBUTABLE TO THE INCOME OF THE TAXABLE YEAR OR PRIOR
TAXABLE YEARS FOR WHICH AN ELECTION UNDER THIS SECTION IS IN EFFECT;
AND (C) WHICH THE SECRETARY OR HIS DELEGATE IS SATISFIED CAN BE
ESTIMATED WITH REASONABLE ACCURACY."  SEC. 462(D)(1), 68A STAT. 158. 
SEE BIERMAN AND HELSTEIN, ACCOUNTING FOR PREPAID INCOME AND ESTIMATED
EXPENSES UNDER THE INTERNAL REVENUE CODE OF 1954, 10 TAX L. REV. 83,
103-113. 

FN12  S. REP. NO. 372, 84TH CONG., 1ST SESS. 3 (QUOTING FROM THE TAX
RECOMMENDATION IN THE PRESIDENTIAL BUDGET MESSAGE OF 1954). 

FN13  THERE WERE SOME EXCEPTIONS TO THE RIGID APPLICATION OF THIS
RULE WHICH HAD BEEN RECOGNIZED.  SEE I.T. 3369, 1940-1 CUM. BULL.  46
(PERMITTING DEFERRED REPORTING OF SUBSCRIPTIONS FOR PUBLISHERS WHO HAD
CONSISTENTLY FOLLOWED THAT PRACTICE); I.T. 2080, III-2 CUM. BULL.  48
(1924)(PERMITTING DEFERMENT OF RECEIPTS FROM SALES OF TICKETS FOR
TOURIST CRUISES), BUT COMPARE NATIONAL AIRLINES, INC. V. COMMISSIONER,
9 T.C. 159.  SEE ALSO VEENSTRA & DEHAAN COAL CO. V. COMMISSIONER, 11
T.C. 964; SUMMIT COAL CO. V. COMMISSIONER, 18 B.T.A. 983. 

FN14  FREEMAN, TAX ACCRUAL ACCOUNTING FOR CONTESTED ITEMS, 56 MICH.
L. REV. 727, 729, N. 9.  SEE BIERMAN AND HELSTEIN, ACCOUNTING FOR
PREPAID INCOME AND ESTIMATED EXPENSES UNDER THE INTERNAL REVENUE CODE
OF 1954, 10 TAX L. REV. 83, 84. 

FN15  "PRESENT LAW PROVIDES THAT THE NET INCOME OF A TAXPAYER SHALL
BE COMPUTED IN ACCORDANCE WITH THE METHOD OF ACCOUNTING REGULARLY
EMPLOYED BY THE TAXPAYER, IF SUCH METHOD CLEARLY REFLECTS THE INCOME
AND THE REGULATIONS STATE THAT APPROVED STANDARD METHODS OF ACCOUNTING
WILL ORDINARILY BE REGARDED AS CLEARLY REFLECTING TAXABLE INCOME. 
NEVERTHELESS, AS A RESULT OF COURT DECISIONS AND RULINGS, THERE HAVE
DEVELOPED MANY DIVERGENCIES BETWEEN THE COMPUTATION OF INCOME FOR TAX
PURPOSES AND INCOME FOR BUSINESS PURPOSES AS COMPUTED UNDER GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES  ... ."   H.R. REP. NO. 1337, 83D CONG.,
2D SESS. 48. 

FN16  SEE ALSO H.R. REP. NO. 293, 84TH CONG., 1ST SESS. 4-5. 

FN17  IT IS TO BE NOTED THAT NO SUCH INFERENCE WAS RELIED UPON IN THE
MICHIGAN CASE, ALTHOUGH THE SAME ARGUMENTS WITH RESPECT TO SECS. 452
AND 462 WERE PRESSED UPON THE COURT BY THE GOVERNMENT.  SEE BRIEF FOR
RESPONDENT, PP. 62-65, AUTOMOBILE CLUB OF MICHIGAN V. COMMISSIONER, 353
U.S. 180. 

FN18  SEE H.R. REP. NO. 293, 84TH CONG., 1ST SESS. 2-5; S. REP. NO.
372, 84TH CONG., 1ST SESS. 4-5; HEARINGS BEFORE THE SENATE FINANCE
COMMITTEE ON H.R. 4725, 84TH CONG., 1ST SESS. 6.  THE PROSPECTIVE LOSS
WAS MORE THAN TEN TIMES THE ORIGINAL ESTIMATE OF 47 MILLION.  IBID.
SEE NOTE, 67 YALE L.J. 1425, 1432, N. 25. 

FN19  THERE WAS ALSO A PROBLEM OF EXPANDED USE OF RESERVES FOR
ESTIMATED EXPENDITURES UNDER SEC. 462 FOR ITEMS LIKE VACATION PAY WHICH
WERE NOT RELATED TO THE REPORTING OF ADVANCES.  SEE HEARINGS BEFORE THE
SENATE FINANCE COMMITTEE ON H.R. 4725, 84TH CONG., 1ST SESS. 5, 9;
SPORRER, THE PAST AND FUTURE OF DEFERRING INCOME AND RESERVING FOR
EXPENSES, 34 TAXES 45, 55-56; GRISWOLD, FEDERAL TAXATION (5TH ED.
1960), 497-498. 

FN20  SEE S. REP. NO. 372, 84TH CONG., 1ST SESS. 4; HEARINGS BEFORE
THE SENATE FINANCE COMMITTEE ON H.R. 4725, 84TH CONG., 1ST SESS., AT 7,
8, 10; DAKIN, THE CHANGE FROM CASH TO ACCRUAL ACCOUNTING FOR FEDERAL
INCOME TAX PURPOSES - PYRAMIDED INCOME, DOUBLE DEDUCTIONS AND DOUBLE
TALK, 51 NW. U.L. REV. 515, 530-538; GRISWOLD, FEDERAL TAXATION (5TH
ED. 1960), 497-498; NOTE, 67 YALE L.J. 1425, 1430. 

FN21  ONLY ONE-TENTH OF THE ESTIMATED LOSS DURING THE TRANSITIONAL
YEAR WAS ATTRIBUTABLE TO SEC. 452.  SEE HEARINGS BEFORE THE SENATE
FINANCE COMMITTEE ON H.R. 4725, 84TH CONG., 1ST SESS. 21. 

FN22  SEE ALSO TREAS. REG. SEC. 1.446-1(E)(2)(1957); BROWN V.
HELVERING, 291 U.S. 193, 204-205; ADVERTISERS EXCHANGE, INC. V.
COMMISSIONER, 25 T.C. 1086; 2 MERTENS, LAW OF FEDERAL INCOME TAXATION,
SECS. 12.19-12.20. 

FN23  THE REVENUE ACT OF 1913, 38 STAT. 114, PROVIDED ONLY FOR A
STRICT CASH RECEIPTS AND DISBURSEMENTS METHOD OF ACCOUNTING.  SEE E.G.,
SEC. IIB, 38 STAT. 167.  IN THE 1916 ACT, THE SECTIONS DEALING WITH
PERMISSIBLE METHODS OF COMPUTING INCOME WERE REVISED TO PROVIDE THAT: 

"A CORPORATION  ...  KEEPING ACCOUNTS UPON ANY BASIS OTHER THAN THAT
OF ACTUAL RECEIPTS AND DISBURSEMENTS, UNLESS SUCH OTHER BASIS DOES NOT
CLEARLY REFLECT ITS INCOME, MAY, SUBJECT TO REGULATIONS MADE BY THE
COMMISSIONER OF INTERNAL REVENUE, WITH THE APPROVAL OF THE SECRETARY OF
THE TREASURY, MAKE ITS RETURN UPON THE BASIS UPON WHICH ITS ACCOUNTS
ARE KEPT,  ...  " SEC.  13(D), 39 STAT. 771.  SEE ALSO SEC. 8(G), 39
STAT. 763 (IDENTICAL PROVISION WITH RESPECT TO RETURNS FILED BY
INDIVIDUALS). 

THESE SECTIONS WERE DESIGNED SPECIFICALLY TO PERMIT ACCRUAL
ACCOUNTING.  SEE H.R. REP. NO. 922, 64TH CONG., 1ST SESS. 4; UNITED
STATES V. ANDERSON, 269 U.S. 422, 439-441.  IN THE REVENUE ACT OF 1918,
THE NECESSITY OF OBTAINING SPECIAL PERMISSION TO USE THE ACCRUAL METHOD
WAS OMITTED, SEE SEC. 212(B), 40 STAT. 1064-1065, AND THE PROVISION
PERMITTING THE USE OF ACCRUAL ACCOUNTING REMAINED SUBSTANTIALLY THE
SAME FOR THE NEXT THIRTY-SIX YEARS.  SEE INT. REV. CODE OF 1939, SEC.
41, 53 STAT. 24; REUBEL V. COMMISSIONER, 1 B.T.A. 676, 677-678.  IN
1954 THE PERTINENT PROVISION WAS AGAIN CHANGED, WITH SPECIFIC MENTION
OF THE "ACCRUAL METHOD."  SEE INT. REV. CODE OF 1954, SEC. 446, 26
U.S.C. SEC. 446.  SEE GENERALLY MAY, ACCOUNTING AND THE ACCOUNTANT IN
THE ADMINISTRATION OF INCOME TAXATION, 47 COL. L. REV. 377, 380-382. 
FN24  SEE, E.G., T.D. 2433, 19 TREAS. DEC. 5 (1917); TREAS. REG. 45,
ART. 23, ART. 111 (1920); TREAS. REG. 118, SEC. 39.41 (1953); TREAS.
REG. SEC. 1.446-1 (1957). 

FN25  SEE, E.G., UNITED STATES V. ANDERSON, 269 U.S. 422; NILES
BEMENT POND CO. V. UNITED STATES, 281 U.S. 357; ALUMINUM CASTINGS CO.
V. ROUTZAHN, 282 U.S. 92; SPRING CITY CO. V. COMMISSIONER, 292 U.S.
182, 184-185; SEE ALSO WEED & BROTHERS V. UNITED STATES, 69 CT. CL.
246, 251-257, 38 F.2D 935, 938-940. 

FN26  COMPARE, E.G., ALUMINUM CASTINGS CO. V. ROUTZAHN, 282 U.S. 92
(DEDUCTION TAKEN IN YEAR PRIOR TO CASH DISBURSEMENT) WITH SHELBY
SALESBOOK CO. V. UNITED STATES, 104 F. SUPP. 237 (DEDUCTION TAKEN IN
LATER YEAR). 

FN27  UNITED STATES V. ANDERSON, 269 U.S. 422; AMERICAN NATIONAL CO.
V. UNITED STATES, 274 U.S. 99; ALUMINUM CASTINGS CO. V. ROUTZAHN, 282
U.S. 92. 

FN28  THE COURT THERE HELD THAT AN ACCRUAL TAXPAYER SHOULD HAVE
DEDUCTED A TAX EXPENSE IN 1916 SO THAT IT PROPERLY COULD HAVE BEEN
OFFSET AGAINST THE PROFITS FROM SALES IN 1916 UPON WHICH THE TAX WAS
LEVIED.  THE COURT REJECTED THE CONTENTION THAT THE TAX COULD NOT
ACCRUE IN 1916 BECAUSE IT WAS NOT DUE UNTIL 1917.  IT STATED: 

"IN A TECHNICAL LEGAL SENSE IT MAY BE ARGUED THAT A TAX DOES NOT
ACCRUE UNTIL IT HAS BEEN ASSESSED AND BECOMES DUE; BUT IT IS ALSO TRUE
THAT IN ADVANCE OF THE ASSESSMENT OF A TAX, ALL THE EVENTS MAY OCCUR
WHICH FIX THE AMOUNT OF THE TAX AND DETERMINE THE LIABILITY OF THE
TAXPAYER TO PAY IT.  IN THIS RESPECT, FOR PURPOSES OF ACCOUNTING AND OF
ASCERTAINING TRUE INCOME FOR A GIVEN ACCOUNTING PERIOD, THE MUNITIONS
TAX HERE IN QUESTION DID NOT STAND ON ANY DIFFERENT FOOTING THAN OTHER
ACCRUED EXPENSES APPEARING ON APPELLEE'S BOOKS.  IN THE ECONOMIC AND
BOOKKEEPING SENSE WITH WHICH THE STATUTE AND TREASURY DECISION WERE
CONCERNED, THE TAXES HAD ACCRUED.  IT SHOULD BE NOTED THAT SEC. 13(D)
MAKES NO USE OF THE WORDS 'ACCRUE' OR 'ACCRUAL' BUT MERELY PROVIDES FOR
A RETURN UPON THE BASIS UPON WHICH THE TAXPAYER'S ACCOUNTS ARE KEPT, IF
IT REFLECTS INCOME - WHICH IS PRECISELY THE RETURN INSISTED UPON BY THE
GOVERNMENT."  269 U.S., AT 441. 

FN29  THE AUTHORS THERE STATE: 

"IN THE ORDINARY CASE, ACCRUAL PRECEDES ACTUAL RECEIPT SINCE THERE IS
AN ACCRUAL WHEN THERE IS A RIGHT TO RECEIVE.  BUT IN SOME CASES ITEMS
ARE RECEIVED BEFORE THEY ARE EARNED, AND THEN THE RECEIPT PRECEDES THE
ACCRUAL." 

SEE ALSO CONTINENTAL TIE & L. CO. V. UNITED STATES, 286 U.S. 290;
GEORGIA SCHOOL-BOOK DEPOSITORY, INC. V. COMMISSIONER, 1 T.C. 463; 1961
C.C.H. TAX REPORTER SEC. 2820.025 ("ON THE ACCRUAL BASIS, INCOME IS
REPORTED WHEN EARNED"); FREEMAN, TAX ACCRUAL ACOUNTING FOR CONTESTED
ITEMS, 56 MICH. L. REV. 727, 728. 

FN30  SEE, E.G., TREAS. REG. 111, SEC. 29.42-4 (1943), TREAS. REG.
118, SEC. 39.42-4 (1953), AND TREAS. REG. SEC. 1.451-3 (1957)(PROVIDING
FOR THE PERCENTAGE OF COMPLETION METHOD OF REPORTING INCOME ON LONG
TERM CONTRACTS); TREAS. REG. 111, SEC. 29.42-5 (1943), TREAS. REG. 118,
SEC.  39.42-5 (1953), AND TREAS. REG. SEC. 1.451-4 (1957)(PROVIDING FOR
THE DEDUCTION FOR REDEMPTION OF TRADING STAMPS BASED UPON "THE RATE, IN
PERCENTAGE, WHICH THE STAMPS REDEEMED IN EACH YEAR BEAR TO THE TOTAL
STAMPS ISSUED IN SUCH YEAR").  SEE GENERALLY BROWN & WILLIAMSON TOBACCO
CORP. V. COMMISSIONER, 16 T.C. 432. 
..END :















MARCUS V. SEARCH WARRANT OF PROPERTY AT 104 EAST TENTH STREET, KANSAS
CITY, MISSOURI 367 U.S. 717 


NO. 225.  ARGUED MARCH 30, 1961 - DECIDED JUNE 19, 1961 - 334 S.W.2D
119, REVERSED. 


PROCEEDING UNDER CERTAIN MISSOURI STATUTES, AS SUPPLEMENTED BY A RULE
OF THE STATE SUPREME COURT, A CITY POLICE OFFICER APPEARED IN A STATE
TRIAL COURT AND FILED A SWORN COMPLAINT THAT EACH OF THE APPELLANTS, A
WHOLESALE DISTRIBUTOR OF MAGAZINES, NEWSPAPERS AND BOOKS AND THE
OPERATORS OF FIVE RETAIL NEWSSTANDS, KEPT "OBSCENE" PUBLICATIONS FOR
SALE.  IN AN EX PARTE PROCEEDING, WITHOUT GRANTING APPELLANTS A HEARING
OR EVEN SEEING ANY OF THE PUBLICATIONS IN QUESTION, AND WITHOUT
SPECIFYING ANY PARTICULAR PUBLICATIONS, THE TRIAL JUDGE ISSUED SEARCH
WARRANTS AUTHORIZING POLICE OFFICERS TO SEARCH APPELLANTS' PREMISES AND
SEIZE ALL "OBSCENE" MATERIAL.  DIFFERENT POLICE OFFICERS SEARCHED
APPELLANTS' PREMISES AND, AFTER HASTY EXAMINATION, SEIZED ALL COPIES OF
ALL PUBLICATIONS WHICH, IN THEIR JUDGMENT, WERE OBSCENE.  NEARLY TWO
WEEKS LATER, APPELLANTS WERE GIVEN A HEARING, AT WHICH THEY MOVED TO
QUASH THE SEARCH WARRANTS FOR RETURN OF THE SEIZED PUBLICATIONS AND FOR
SUPPRESSION OF THEIR USE IN EVIDENCE, ON THE GROUND THAT THEIR SEIZURE
VIOLATED THE PROTECTION OF FREE SPEECH AND PRESS GUARANTEED BY THE
FOURTEENTH AMENDMENT.  THESE MOTIONS WERE DENIED AND, OVER TWO MONTHS
AFTER THE SEIZURE, THE TRIAL COURT FOUND THAT 100 OF THE SEIZED
PUBLICATIONS WERE OBSCENE AND IT ORDERED THEIR DESTRUCTION; BUT IT ALSO
FOUND THAT 180 OTHER SEIZED PUBLICATIONS WERE NOT OBSCENE AND IT
ORDERED THEM RETURNED TO THEIR OWNERS.  THE STATE SUPREME COURT
SUSTAINED THE VALIDITY OF THESE PROCEDURES, AND AN APPEAL WAS TAKEN TO
THIS COURT.  HELD: 

1.  THIS COURT HAD JURISDICTION OF THE APPEAL UNDER 28 U.S.C. SEC.
1257(2).  P. 721. 

2.  THE SEARCH AND SEIZURE PROCEDURES APPLIED IN THIS CASE LACKED THE
SAFEGUARDS TO NONOBSCENE MATERIAL WHICH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT REQUIRES TO PREVENT EROSION OF THE CONSTITUTIONAL
GUARANTIES OF FREEDOM OF SPEECH AND PRESS, AND THE JUDGMENT IS
REVERSED.  PP. 729-738. 

(A)  UNDER THE FOURTEENTH AMENDMENT, A STATE IS NOT FREE TO ADOPT
WHATEVER PROCEDURES IT PLEASES FOR DEALING WITH OBSCENITY WITHOUT
REGARD TO THE POSSIBLE CONSEQUENCES FOR CONSTITUTIONALLY PROTECTED
SPEECH.  PP. 729-731. 

(B)  AS APPLIED IN THIS CASE, MISSOURI'S PROCEDURES CONFIDED TO LAW
ENFORCEMENT OFFICIALS BROAD DISCRETION TO SEIZE ALLEGEDLY OBSCENE
PUBLICATIONS WITHOUT ADEQUATE SAFEGUARDS TO ASSURE NONOBSCENE MATERIAL
THE CONSTITUTIONAL PROTECTION TO WHICH IT IS ENTITLED.  PP. 731-733. 

(C)  KINGSLEY BOOKS, INC., V. BROWN, 354 U.S. 436, DISTINGUISHED. 
PP. 734-738. 

MARCUS ET AL. V. SEARCH WARRANT OF PROPERTY AT 104 EAST TENTH STREET,
KANSAS CITY, MISSOURI, ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS THE QUESTION WHETHER DUE PROCESS UNDER THE
FOURTEENTH AMENDMENT WAS DENIED THE APPELLANTS BY THE APPLICATION IN
THIS CASE OF MISSOURI'S PROCEDURES AUTHORIZING THE SEARCH FOR AND
SEIZURE OF ALLEGEDLY OBSCENE PUBLICATIONS PRELIMINARILY TO THEIR
DESTRUCTION BY BURNING OR OTHERWISE IF FOUND BY A COURT TO BE OBSCENE. 
THE PROCEDURES ARE STATUTORY, BUT ARE SUPPLEMENTED BY A RULE OF THE
MISSOURI SUPREME COURT.  (FN1)  THE WARRANT FOR SEARCH FOR AND SEIZURE
OF OBSCENE MATERIAL ISSUES ON A SWORN COMPLAINT FILED WITH A JUDGE OR
MAGISTRATE.  (FN2)  IF THE COMPLAINANT STATES "POSITIVELY AND NOT UPON
INFORMATION OR BELIEF," OR STATES "EVIDENTIAL FACTS FROM WHICH SUCH
JUDGE OR MAGISTRATE DETERMINES THE EXISTENCE OF PROBABLE CAUSE" TO
BELIEVE THAT OBSCENE MATERIAL "IS BEING HELD OR KEPT IN ANY PLACE OR IN
ANY BUILDING," "SUCH JUDGE OR MAGISTRATE SHALL ISSUE A SEARCH WARRANT
DIRECTED TO ANY PEACE OFFICER COMMANDING HIM TO SEARCH THE PLACE
THEREIN DESCRIBED AND TO SEIZE AND BRING BEFORE SUCH JUDGE OR
MAGISTRATE THE PERSONAL PROPERTY THEREIN DESCRIBED."  (FN3) THE OWNER
OF THE PROPERTY IS NOT AFFORDED A HEARING BEFORE THE WARRANT ISSUES;
THE PROCEEDING IS EX PARTE.  HOWEVER, THE JUDGE OR MAGISTRATE ISSUING
THE WARRANT MUST FIX A DATE, NOT LESS THAN FIVE NOR MORE THAN 20 DAYS
AFTER THE SEIZURE, FOR A HEARING TO DETERMINE WHETHER THE SEIZED
MATERIAL IS OBSCENE.  (FN4)  THE OWNER OF THE MATERIAL MAY APPEAR AT
SUCH HEARING AND DEFEND AGAINST THE CHARGE.   (FN5)  NO TIME LIMIT IS
PROVIDED WITHIN WHICH THE JUDGE MUST ANNOUNCE HIS DECISION.  IF THE
JUDGE FINDS THAT THE MATERIAL IS OBSCENE, HE IS REQUIRED TO ORDER IT TO
BE PUBLICLY DESTROYED, BY BURNING OR OTHERWISE; IF HE FINDS THAT IT IS
NOT OBSCENE, HE SHALL ORDER ITS RETURN TO ITS OWNER.  (FN6) 

THE MISSOURI SUPREME COURT SUSTAINED THE VALIDITY OF THE PROCEDURES
AS APPLIED IN THIS CASE.  334 S.W.2D 119.  THE APPELLANTS BROUGHT THIS
APPEAL HERE UNDER 28 U.S.C. SEC. 1257(2).  WE POSTPONED CONSIDERATION
OF THE QUESTION OF OUR JURISDICTION TO THE HEARING OF THE CASE ON THE
MERITS.  364 U.S. 811.  WE HOLD THAT THE APPEAL IS PROPERLY HERE, SEE
DAHNKE-WALKER MILLING CO. V. BONDURANT, 257 U.S. 282, AND TURN TO THE
MERITS. 

APPELLANT, KANSAS CITY NEWS DISTRIBUTORS, MANAGED BY APPELLANT, HOMER
SMAY, IS A WHOLESALE DISTRIBUTOR OF MAGAZINES, NEWSPAPERS AND BOOKS IN
THE KANSAS CITY AREA.  THE OTHER APPELLANTS OPERATE FIVE RETAIL
NEWSSTANDS IN KANSAS CITY.  IN OCTOBER 1957, POLICE LIEUTENANT COUGHLIN
OF THE KANSAS CITY POLICE DEPARTMENT VICE SQUAD WAS CONDUCTING AN
INVESTIGATION INTO THE DISTRIBUTION OF ALLEGEDLY OBSCENE MAGAZINES.  ON
OCTOBER 8, 1957, HE VISITED DISTRIBUTORS' PLACE OF BUSINESS AND SHOWED
SMAY A LIST OF MAGAZINES.  SMAY ADMITTED THAT HIS COMPANY DISTRIBUTED
ALL BUT ONE OF THE MAGAZINES ON THE LIST.  THE FOLLOWING DAY, OCTOBER
9, LIEUTENANT COUGHLIN VISITED THE FIVE NEWSSTANDS AND PURCHASED ONE
MAGAZINE AT EACH.  (FN7)  ON OCTOBER 10 THE OFFICER SIGNED AND FILED
SIX SWORN COMPLAINTS IN THE CIRCUIT COURT OF JACKSON COUNTY, STATING IN
EACH COMPLAINT THAT "OF HIS OWN KNOWLEDGE" THE APPELLANT NAMED THEREIN,
AT ITS STATED PLACE OF BUSINESS, "KEPT FOR THE PURPOSE OF SALE  ...
OBSCENE  ...  PUBLICATIONS  ...  ."  NO COPY OF ANY MAGAZINE ON
LIEUTENANT COUGHLIN'S LIST, OR PURCHASED BY HIM AT THE NEWSSTANDS, WAS
FILED WITH THE COMPLAINT OR SHOWN TO THE CIRCUIT JUDGE.  THE CIRCUIT
JUDGE ISSUED SIX SEARCH WARRANTS AUTHORIZING, AS TO THE PREMISES OF THE
APPELLANT NAMED IN EACH, "ANY PEACE OFFICER IN THE STATE OF MISSOURI
...  TO SEARCH THE SAID PREMISES  ...  WITHIN 10 DAYS AFTER THE
ISSUANCE OF THIS WARRANT BY DAY OR NIGHT, AND  ...  SEIZE ...  OBSCENE
MATERIALS AND TAKE SAME INTO YOUR POSSESSION  ...  ." 

ALL OF THE WARRANTS WERE EXECUTED ON OCTOBER 10, BUT BY DIFFERENT LAW
ENFORCEMENT OFFICERS.  LIEUTENANT COUGHLIN WITH TWO OTHER KANSAS CITY
POLICE OFFICERS, AND AN OFFICER OF THE JACKSON COUNTY SHERIFF'S PATROL,
EXECUTED THE WARRANT AGAINST DISTRIBUTORS.  DISTRIBUTORS' STOCK OF
MAGAZINES RUNS "INTO HUNDREDS OF THOUSANDS  ...  PROBABLY CLOSER TO A
MILLION COPIES."  THE OFFICERS EXAMINED THE PUBLICATIONS IN THE STOCK
ON THE MAIN FLOOR OF THE ESTABLISHMENT, NOT CONFINING THEMSELVES TO
LIEUTENANT COUGHLIN'S ORIGINAL LIST.  THEY SEIZED ALL MAGAZINES WHICH
"IN OUR JUDGMENT" WERE OBSCENE; WHEN AN OFFICER THOUGHT "A MAGAZINE
...  OUGHT TO BE PICKED UP" HE SEIZED ALL COPIES OF IT.  AFTER THREE
HOURS THE EXAMINATION WAS COMPLETED AND THE MAGAZINES SEIZED WERE
"HAULED AWAY IN A TRUCK AND PUT ON THE 15TH FLOOR OF THE COURTHOUSE." 
A SUBSTANTIALLY SIMILAR PROCEDURE WAS FOLLOWED AT EACH OF THE FIVE
NEWSSTANDS.  APPROXIMATELY 11,000 COPIES OF 280 PUBLICATIONS,
PRINCIPALLY MAGAZINES BUT ALSO SOME BOOKS AND PHOTOGRAPHS, WERE SEIZED
AT THE SIX PLACES.  (FN8) 

THE CIRCUIT JUDGE FIXED OCTOBER 17 FOR THE HEARING, WHICH WAS LATER
CONTINUED TO OCTOBER 23.  TIMELY MOTIONS WERE MADE BY THE APPELLANTS TO
QUASH THE SEARCH WARRANTS AND TO SUPPRESS AS EVIDENCE THE PROPERTY
SEIZED, AND FOR THE IMMEDIATE RETURN OF THE PROPERTY.  THE MOTIONS WERE
RESTED ON A NUMBER OF GROUNDS BUT WE ARE CONCERNED ONLY WITH THE
CHALLENGE TO THE APPLICATION OF THE PROCEDURES IN THE CONTEXT OF THE
PROTECTIONS FOR FREE SPEECH AND PRESS ASSURED AGAINST STATE ABRIDGMENT
BY THE FOURTEENTH AMENDMENT.  (FN9)  UNCONSTITUTIONALITY IN VIOLATION
OF THE FOURTEENTH AMENDMENT WAS ASSERTED BECAUSE THE PROCEDURES AS
APPLIED (1) ALLOWED A SEIZURE BY POLICE OFFICERS "WITHOUT NOTICE OR ANY
HEARING AFFORDED TO THE MOVANTS PRIOR TO SEIZURE FOR THE PURPOSE OF
DETERMINING WHETHER OR NOT THESE  ...  PUBLICATIONS ARE OBSCENE  ...
," AND (2) BECAUSE THEY "ALLOWED POLICE OFFICERS AND DEPUTY SHERIFFS TO
DECIDE AND MAKE A JUDICIAL DETERMINATION AFTER THE WARRANT WAS ISSUED
AS TO WHICH  ...  MAGAZINES WERE  ...  OBSCENE  ...  AND WERE SUBJECT
TO SEIZURE, IMPAIRING MOVANTS' FREEDOM OF SPEECH AND PUBLICATION."  THE
CIRCUIT JUDGE RESERVED RULINGS ON THE MOTIONS AND HEARD TESTIMONY OF
THE POLICE OFFICERS CONCERNING THE EVENTS SURROUNDING THE ISSUANCE AND
EXECUTION OF THE SEVERAL WARRANTS.  ON DECEMBER 12, 1957, THE CIRCUIT
JUDGE FILED AN UNREPORTED OPINION IN WHICH HE OVERRULED THE SEVERAL
MOTIONS AND FOUND THAT 100 OF THE 280 SEIZED ITEMS WERE OBSCENE.  A
JUDGMENT THEREUPON ISSUED DIRECTING THAT THE 100 ITEMS, AND ALL COPIES
THEREOF, "SHALL BE RETAINED BY THE SHERIFF OF JACKSON COUNTY  ...  AS
NECESSARY EVIDENCE FOR THE PURPOSE OF POSSIBLE CRIMINAL PROSECUTION OR
PROSECUTIONS, AND, WHEN SUCH NECESSITY NO LONGER EXISTS, SAID SHERIFF
...  SHALL PUBLICLY DESTROY THE SAME BY BURNING WITHIN THIRTY DAYS
THEREAFTER"; IT ORDERED FURTHER THAT THE 180 ITEMS NOT FOUND TO BE
OBSCENE, AND ALL COPIES THEREOF, "SHALL BE RETURNED FORTHWITH BY THE
SHERIFF  ...  TO THE RIGHTFUL OWNER OR OWNERS  ...  ." 

                                        I. 

THE USE BY GOVERNMENT OF THE POWER OF SEARCH AND SEIZURE AS AN
ADJUNCT TO A SYSTEM FOR THE SUPPRESSION OF OBJECTIONABLE PUBLICATIONS
IS NOT NEW.  HISTORICALLY THE STRUGGLE FOR FREEDOM OF SPEECH AND PRESS
IN ENGLAND WAS BOUND UP WITH THE ISSUE OF THE SCOPE OF THE SEARCH AND
SEIZURE POWER.  SEE GENERALLY SIEBERT, FREEDOM OF THE PRESS IN ENGLAND,
1476-1776; HANSON, GOVERNMENT AND THE PRESS, 1695-1763.  IT WAS A
PRINCIPAL INSTRUMENT FOR THE ENFORCEMENT OF THE TUDOR LICENSING
SYSTEM.  THE STATIONERS' COMPANY WAS INCORPORATED IN 1557 TO HELP
IMPLEMENT THAT SYSTEM AND WAS EMPOWERED "TO MAKE SEARCH WHENEVER IT
SHALL PLEASE THEM IN ANY PLACE, SHOP, HOUSE, CHAMBER, OR BUILDING OR
ANY PRINTER, BINDER OR BOOKSELLER WHATEVER WITHIN OUR KINGDOM OR
ENGLAND OR THE DOMINIONS OF THE SAME OF OR FOR ANY BOOKS OR THINGS
PRINTED, OR TO BE PRINTED, AND TO SEIZE, TAKE HOLD, BURN, OR TURN TO
THE PROPER USE OF THE FORESAID COMMUNITY, ALL AND SEVERAL THOSE BOOKS
AND THINGS WHICH ARE OR SHALL BE PRINTED CONTRARY TO THE FORM OF ANY
STATUTE, ACT, OR PROCLAMATION, MADE OR TO BE MADE  ...  ."  (FN10) 

AN ORDER OF COUNCIL CONFIRMED AND EXPANDED THE COMPANY'S POWER IN
1566, (FN11) AND THE STAR CHAMBER REAFFIRMED IT IN 1586 BY A DECREE
"THAT IT SHALL BE LAWFUL FOR THE WARDENS OF THE SAID COMPANY FOR THE
TIME BEING OR ANY TWO OF THE SAID COMPANY THERETO DEPUTED BY THE SAID
WARDENS, TO MAKE SEARCH IN ALL WORKHOUSES, SHOPS, WAREHOUSES OF
PRINTERS, BOOKSELLERS, BOOKBINDERS, OR WHERE THEY SHALL HAVE REASONABLE
CAUSE OF SUSPICION, AND ALL BOOKS ETC.  ...  CONTRARY TO  ...  THESE
PRESENT ORDINANCES TO STAY AND TAKE TO HER MAJESTY'S USE  ...  ." 
(FN12)  BOOKS THUS SEIZED WERE TAKEN TO STATIONERS' HALL WHERE THEY
WERE INSPECTED BY ECCLESIASTICAL OFFICERS, WHO DECIDED WHETHER THEY
SHOULD BE BURNT.  THESE POWERS WERE EXERCISED UNDER THE TUDOR
CENSORSHIP TO SUPPRESS BOTH CATHOLIC AND PURITAN DISSENTING
LITERATURE.  (FN13) 

EACH SUCCEEDING REGIME DURING TURBULENT SEVENTEENTH CENTURY ENGLAND
USED THE SEARCH AND SEIZURE POWER TO SUPPRESS PUBLICATIONS.  JAMES I
COMMISSIONED THE ECCLESIASTICAL JUDGES COMPRISING THE COURT OF HIGH
COMMISSION "TO ENQUIRE AND SEARCH FOR  ...  ALL HERETICAL, SCHISMATICAL
AND SEDITIOUS BOOKS, LIBELS, AND WRITINGS, AND ALL OTHER BOOKS,
PAMPHLETS AND PORTRAITURES OFFENSIVE TO THE STATE OR SET FORTH WITHOUT
SUFFICIENT AND LAWFUL AUTHORITY IN THAT BEHALF,  ...  AND THE SAME
BOOKS ETC. AND THEIR PRINTING-PRESSES THEMSELVES LIKEWISE TO SEIZE AND
SO TO ORDER AND DISPOSE OF THEM  ...  AS THEY MAY NOT AFTER SERVE OR BE
EMPLOYED FOR ANY SUCH UNLAWFUL USE  ...  ."  (FN14)  THE STAR CHAMBER
DECREE OF 1637, RE-ENACTING THE REQUIREMENT THAT ALL BOOKS BE LICENSED,
CONTINUED THE BROAD POWERS OF THE STATIONERS' COMPANY TO ENFORCE THE
LICENSING LAWS.  (FN15) DURING THE POLITICAL OVERTURN OF THE 1640'S
PARLIAMENT ON SEVERAL OCCASIONS ASSERTED THE NECESSITY OF A BROAD
SEARCH AND SEIZURE POWER TO CONTROL PRINTING.  THUS AN ORDER OF 1648
GAVE POWER TO THE SEARCHERS "TO SEARCH IN ANY HOUSE OR PLACE WHERE
THERE IS JUST CAUSE OF SUSPICION, THAT PRESSES ARE KEPT AND EMPLOYED IN
THE PRINTING OF SCANDALOUS AND LYING PAMPHLETS,  ...  AND TO SEIZE SUCH
SCANDALOUS AND LYING PAMPHLETS AS THEY FIND UPON SEARCH  ...  ." 
(FN16)  THE RESTORATION BROUGHT A NEW LICENSING ACT IN 1662.  UNDER ITS
AUTHORITY "MESSENGERS OF THE PRESS" OPERATED UNDER THE SECRETARIES OF
STATE, WHO ISSUED EXECUTIVE WARRANTS FOR THE SEIZURE OF PERSONS AND
PAPERS.  THESE WARRANTS, WHILE SOMETIMES SPECIFIC IN CONTENT, OFTEN
GAVE THE MOST GENERAL DISCRETIONARY AUTHORITY.  FOR EXAMPLE, A WARRANT
TO ROGER L'ESTRANGE, THE SURVEYOR OF THE PRESS, EMPOWERED HIM TO "SEIZE
ALL SEDITIOUS BOOKS AND LIBELS AND TO APPREHEND THE AUTHORS,
CONTRIVERS, PRINTERS, PUBLISHERS, AND DISPERSERS OF THEM," AND TO
"SEARCH ANY HOUSE, SHOP, PRINTING ROOM, CHAMBER, WAREHOUSE, ETC. FOR
SEDITIOUS, SCANDALOUS OR UNLICENSED PICTURES, BOOKS, OR PAPERS, TO
BRING AWAY OR DEFACE THE SAME, AND THE LETTER PRESS, TAKING AWAY ALL
THE COPIES  ...  ."  (FN17)  ANOTHER WARRANT GAVE L'ESTRANGE POWER TO
"SEARCH FOR & SEIZE AUTHORS, CONTRIVERS, PRINTERS,  ...  PUBLISHERS,
DISPENSERS, & CONCEALERS OF TREASONABLE, SCHISMATICALL, SEDITIOUS OR
UNLICENSED BOOKS, LIBELLS, PAMPHLETS, OR PAPERS  ...  TOGETHER WITH ALL
COPYS EXEMPLARYES OF SUCH BOOKS, LIBELLS, PAMPHLETS OR PAPER AS
AFORESAID."  (FN18) 

ALTHOUGH INCREASINGLY ATTACKED, THE LICENSING SYSTEM WAS CONTINUED IN
EFFECT FOR A TIME EVEN AFTER THE REVOLUTION OF 1688 AND EXECUTIVE
WARRANTS CONTINUED TO ISSUE FOR THE SEARCH FOR AND SEIZURE OF OFFENDING
BOOKS.  THE STATIONERS' COMPANY WAS ALSO ORDERED "TO MAKE OFTEN AND
DILIGENT SEARCHES IN ALL SUCH PLACES YOU OR ANY OF YOU SHALL KNOW OR
HAVE ANY PROBABLE REASON TO SUSPECT, AND TO SEIZE ALL UNLICENSED,
SCANDALOUS BOOKS AND PAMPHLETS  ...  ."  (FN19)  AND EVEN WHEN THE
DEVICE OF PROSECUTION FOR SEDITIOUS LIBEL REPLACED LICENSING AS THE
PRINCIPAL GOVERNMENTAL CONTROL OF THE PRESS, (FN20) IT TOO WAS ENFORCED
WITH THE AID OF GENERAL WARRANTS - AUTHORIZING EITHER THE ARREST OF ALL
PERSONS CONNECTED WITH THE PUBLICATION OR A PARTICULAR LIBEL AND THE
SEARCH OF THEIR PREMISES, OR THE SEIZURE OF ALL THE PAPERS OF A NAMED
PERSON ALLEGED TO BE CONNECTED WITH THE PUBLICATION OF A LIBEL. 
(FN21) 

ENFORCEMENT THROUGH GENERAL WARRANTS WAS FINALLY JUDICIALLY CONDEMNED
IN ENGLAND.  THIS WAS THE CONSEQUENCE OF THE STRUGGLE OF THE 1760'S
BETWEEN THE CROWN AND THE OPPOSITION PRESS LED BY JOHN WILKES, AUTHOR
AND EDITOR OF THE NORTH BRITON.  FROM THIS STRUGGLE CAME THE GREAT CASE
OF ENTICK V. CARRINGTON, 19 HOW.  ST. TR. 1029, WHICH THIS COURT HAS
CALLED "ONE OF THE LANDMARKS OF ENGLISH LIBERTY."  BOYD V. UNITED
STATES, 116 U.S. 616, 626.  A WARRANT BASED ON A CHARGE OF SEDITIOUS
LIBEL ISSUED FOR THE ARREST OF ENTICK, WRITER FOR AN OPPOSITION PAPER,
AND FOR THE SEIZURE OF ALL HIS PAPERS.  THE OFFICERS EXECUTING THE
WARRANT RANSACKED ENTICK'S HOME FOR FOUR HOURS AND CARTED AWAY GREAT
QUANTITIES OF BOOKS AND PAPERS.  LORD CAMDEN DECLARED THE GENERAL
WARRANT FOR THE SEIZURE OF PAPERS CONTRARY TO THE COMMON LAW, DESPITE
ITS LONG HISTORY.  CAMDEN SAID:  "THIS POWER SO ASSUMED BY THE
SECRETARY OF STATE IS AN EXECUTION UPON ALL THE PARTY'S PAPERS, IN THE
FIRST INSTANCE.  HIS HOUSE IS RIFLED; HIS MOST VALUABLE SECRETS ARE
TAKEN OUT OF HIS POSSESSION, BEFORE THE PAPER FOR WHICH HE IS CHARGED
IS FOUND TO BE CRIMINAL BY ANY COMPETENT JURISDICTION, AND BEFORE HE IS
CONVICTED EITHER OF WRITING, PUBLISHING, OR BEING CONCERNED IN THE
PAPER."  AT 1064.  CAMDEN EXPRESSLY DISMISSED THE CONTENTION THAT SUCH
A WARRANT COULD BE JUSTIFIED ON THE GROUNDS THAT IT WAS "NECESSARY FOR
THE ENDS OF GOVERNMENT TO LODGE SUCH A POWER WITH A STATE OFFICER; AND
...  BETTER TO PREVENT THE PUBLICATION BEFORE THAN TO PUNISH THE
OFFENDER AFTERWARDS."  AT 1073.  IN WILKES V. WOOD, 19 HOW.  ST. TR.
1153, CAMDEN ALSO CONDEMNED THE GENERAL WARRANTS EMPLOYED AGAINST JOHN
WILKES FOR HIS PUBLICATION OF ISSUE NO. 45 OF THE NORTH BRITON.  HE
DECLARED THAT THESE WARRANTS, CALLING FOR THE ARREST OF UNNAMED PERSONS
CONNECTED WITH THE ALLEGED LIBEL AND SEIZURE OF THEIR PAPERS, AMOUNTED
TO A "DISCRETIONARY POWER GIVEN TO MESSENGERS TO SEARCH WHEREVER THEIR
SUSPICIONS MAY CHANCE TO FALL.  IF SUCH A POWER IS TRULY INVESTED IN A
SECRETARY OF STATE, AND HE CAN DELEGATE THIS POWER, IT CERTAINLY MAY
AFFECT THE PERSON AND PROPERTY OF EVERY MAN IN THIS KINGDOM, AND IS
TOTALLY SUBVERSIVE OF THE LIBERTY OF THE SUBJECT."  ID., 1167.  (FN22) 

THIS HISTORY WAS, OF COURSE, PART OF THE INTELLECTUAL MATRIX WITHIN
WHICH OUR OWN CONSTITUTIONAL FABRIC WAS SHAPED.  THE BILL OF RIGHTS WAS
FASHIONED AGAINST THE BACKGROUND OF KNOWLEDGE THAT UNRESTRICTED POWER
OF SEARCH AND SEIZURE COULD ALSO BE AN INSTRUMENT FOR STIFLING LIBERTY
OF EXPRESSION.  FOR THE SERIOUS HAZARD OF SUPPRESSION OF INNOCENT
EXPRESSION INHERED IN THE DISCRETION CONFIDED IN THE OFFICERS
AUTHORIZED TO EXERCISE THE POWER. 

                                  II. 

THE QUESTION HERE IS WHETHER THE USE BY MISSOURI IN THIS CASE OF THE
SEARCH AND SEIZURE POWER TO SUPPRESS OBSCENE PUBLICATIONS INVOLVED
ABUSES INIMICAL TO PROTECTED EXPRESSION.  WE HELD IN ROTH V. UNITED
STATES, 354 U.S. 476, 485, (FN23) THAT "OBSCENITY IS NOT WITHIN THE
AREA OF CONSTITUTIONALLY PROTECTED SPEECH OR PRESS."  BUT IN ROTH
ITSELF WE EXPRESSLY RECOGNIZED THE COMPLEXITY OF THE TEST OF OBSCENITY
FASHIONED IN THAT CASE, AND THE VITAL NECESSITY IN ITS APPLICATION OF
SAFEGUARDS TO PREVENT DENIAL OF "THE PROTECTION OF FREEDOM OF SPEECH
AND PRESS FOR MATERIAL WHICH DOES NOT TREAT SEX IN A MANNER APPEALING
TO PRURIENT INTEREST."  ID., P. 488.  WE HAVE SINCE HELD THAT A STATE'S
POWER TO SUPPRESS OBSCENITY IS LIMITED BY THE CONSTITUTIONAL
PROTECTIONS FOR FREE EXPRESSION.  IN SMITH V. CALIFORNIA, 361 U.S. 147,
155, WE SAID, "THE EXISTENCE OF THE STATE'S POWER TO PREVENT THE
DISTRIBUTION OF OBSCENE MATTER DOES NOT MEAN THAT THERE CAN BE NO
CONSTITUTIONAL BARRIER TO ANY FORM OF PRACTICAL EXERCISE OF THAT
POWER," INASMUCH AS "OUR HOLDING IN ROTH DOES NOT RECOGNIZE ANY STATE
POWER TO RESTRICT THE DISSEMINATION OF BOOKS WHICH ARE NOT OBSCENE." 
ID., P. 152.  WE THEREFORE HELD THAT A STATE MAY NOT IMPOSE ABSOLUTE
CRIMINAL LIABILITY ON A BOOKSELLER FOR THE POSSESSION OF OBSCENE
MATERIAL, EVEN IF IT MAY DISPERSE WITH THE ELEMENT OF SCIENTER IN
DEALING WITH SUCH EVILS AS IMPURE FOOD AND DRUGS.  WE REMARKED THE
DISTINCTION BETWEEN THE CASES:  "THERE IS NO SPECIFIC CONSTITUTIONAL
INHIBITION AGAINST MAKING THE DISTRIBUTORS OF FOOD THE STRICTEST
CENSORS OF THEIR MERCHANDISE, BUT THE CONSTITUTIONAL GUARANTEES OF THE
FREEDOM OF SPEECH AND OF THE PRESS STAND IN THE WAY OF IMPOSING A
SIMILAR REQUIREMENT ON THE BOOKSELLER."  ID., PP. 152-153.  THE
MISSOURI SUPREME COURT'S ASSIMILATION OF OBSCENE LITERATURE TO GAMBLING
PARAPHERNALIA OR OTHER CONTRABAND FOR PURPOSES OF SEARCH AND SEIZURE
DOES NOT THEREFORE ANSWER THE APPELLANTS' CONSTITUTIONAL CLAIM, BUT
MERELY RESTATES THE ISSUE WHETHER OBSCENITY MAY BE TREATED IN THE SAME
WAY.  THE AUTHORITY TO THE POLICE OFFICERS UNDER THE WARRANTS ISSUED IN
THIS CASE, BROADLY TO SEIZE "OBSCENE  ... PUBLICATIONS," POSES PROBLEMS
NOT RAISED BY THE WARRANTS TO SEIZE "GAMBLING IMPLEMENTS" AND "ALL
INTOXICATING LIQUORS" INVOLVED IN THE CASES CITED BY THE MISSOURI
SUPREME COURT.  334 S.W.2D, AT 125.  FOR THE USE OF THESE WARRANTS
IMPLICATES QUESTIONS WHETHER THE PROCEDURES LEADING TO THEIR ISSUANCE
AND SURROUNDING THEIR EXECUTION WERE ADEQUATE TO AVOID SUPPRESSION OF
CONSTITUTIONALLY PROTECTED PUBLICATIONS.  "  ...  THE LINE BETWEEN
SPEECH UNCONDITIONALLY GUARANTEED AND SPEECH WHICH MAY LEGITIMATELY BE
REGULATED, SUPPRESSED, OR PUNISHED IS FINELY DRAWN  ...  .  THE
SEPARATION OF LEGITIMATE FROM ILLEGITIMATE SPEECH CALLS FOR  ...
SENSITIVE TOOLS  ...  ."  SPEISER V. RANDALL, 357 U.S. 513, 525. 
(FN24)  IT FOLLOWS THAT, UNDER THE FOURTEENTH AMENDMENT, A STATE IS NOT
FREE TO ADOPT WHATEVER PROCEDURES IT PLEASES FOR DEALING WITH OBSCENITY
AS HERE INVOLVED WITHOUT REGARD TO THE POSSIBLE CONSEQUENCES FOR
CONSTITUTIONALLY PROTECTED SPEECH. 

WE BELIEVE THAT MISSOURI'S PROCEDURES AS APPLIED IN THIS CASE LACKED
THE SAFEGUARDS WHICH DUE PROCESS DEMANDS TO ASSURE NONOBSCENE MATERIAL
THE CONSTITUTIONAL PROTECTION TO WHICH IT IS ENTITLED.   PUTTING TO ONE
SIDE THE FACT THAT NO OPPORTUNITY WAS AFFORDED THE APPELLANTS TO ELICIT
AND CONTEST THE REASONS FOR THE OFFICER'S BELIEF, OR OTHERWISE TO ARGUE
AGAINST THE PROPRIETY OF THE SEIZURE TO THE ISSUING JUDGE, STILL THE
WARRANTS ISSUED ON THE STRENGTH OF THE CONCLUSORY ASSERTIONS OF A
SINGLE POLICE OFFICER, WITHOUT ANY SCRUTINY BY THE JUDGE OF ANY
MATERIALS CONSIDERED BY THE COMPLAINANT TO BE OBSCENE.  THE WARRANTS
GAVE THE BROADEST DISCRETION TO THE EXECUTING OFFICERS; THEY MERELY
REPEATED THE LANGUAGE OF THE STATUTE AND THE COMPLAINTS, SPECIFIED NO
PUBLICATIONS, AND LEFT TO THE INDIVIDUAL JUDGMENT OF EACH OF THE MANY
POLICE OFFICERS INVOLVED THE SELECTION OF SUCH MAGAZINES AS IN HIS VIEW
CONSTITUTED "OBSCENE  ...  PUBLICATIONS."  SO FAR AS APPEARS FROM THE
RECORD, NONE OF THE OFFICERS EXCEPT LIEUTENANT COUGHLIN HAD PREVIOUSLY
EXAMINED ANY OF THE PUBLICATIONS WHICH WERE SUBSEQUENTLY SEIZED.  IT IS
PLAIN THAT IN MANY INSTANCES, IF NOT IN ALL, EACH OFFICER ACTUALLY MADE
AD HOC DECISIONS ON THE SPOT AND, GAUGED BY THE NUMBER OF PUBLICATIONS
SEIZED AND THE TIME SPENT IN EXECUTING THE WARRANTS, EACH DECISION WAS
MADE WITH LITTLE OPPORTUNITY FOR REFLECTION AND DELIBERATION.  AS TO
PUBLICATIONS SEIZED BECAUSE THEY APPEARED ON THE LIEUTENANT'S LIST, WE
KNOW NOTHING OF THE BASIS FOR THE ORIGINAL JUDGMENT THAT THEY WERE
OBSCENE.  IT IS NO REFLECTION ON THE GOOD FAITH OR JUDGMENT OF THE
OFFICERS TO CONCLUDE THAT THE TASK THEY WERE ASSIGNED WAS SIMPLY AN
IMPOSSIBLE ONE TO PERFORM WITH ANY REALISTIC EXPECTATION THAT THE
OBSCENE MIGHT BE ACCURATELY SEPARATED FROM THE CONSTITUTIONALLY
PROTECTED.  THEY WERE PROVIDED WITH NO GUIDE TO THE EXERCISE OF
INFORMED DISCRETION, BECAUSE THERE WAS NO STEP IN THE PROCEDURE BEFORE
SEIZURE DESIGNED TO FOCUS SEARCHINGLY ON THE QUESTION OF OBSCENITY. 
SEE GENERALLY 1 CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS, PP. 200
218.  IN CONSEQUENCE THERE WERE SUPPRESSED AND WITHHELD FROM THE MARKET
FOR OVER TWO MONTHS 180 PUBLICATIONS NOT FOUND OBSCENE.  (FN25)  THE
FACT THAT ONLY ONE-THIRD OF THE PUBLICATIONS SEIZED WERE FINALLY
CONDEMNED STRENGTHENS THE CONCLUSION THAT DISCRETION TO SEIZE ALLEGEDLY
OBSCENE MATERIALS CANNOT BE CONFIDED TO LAW ENFORCEMENT OFFICIALS
WITHOUT GREATER SAFEGUARDS THAN WERE HERE OPERATIVE.  PROCEDURES WHICH
SWEEP SO BROADLY AND WITH SO LITTLE DISCRIMINATION ARE OBVIOUSLY
DEFICIENT IN TECHNIQUES REQUIRED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO PREVENT EROSION OF THE CONSTITUTIONAL
GUARANTEES.  (FN26)

                                     III. 

THE RELIANCE OF THE MISSOURI SUPREME COURT UPON KINGSLEY BOOKS, INC.,
V. BROWN, 354 U.S. 436, IS MISPLACED.  THE DIFFERENCES IN THE
PROCEDURES UNDER THE NEW YORK STATUTE UPHELD IN THAT CASE AND THE
MISSOURI PROCEDURES AS APPLIED HERE ARE MARKED.  THEY AMOUNT TO THE
DISTINCTION BETWEEN "A 'LIMITED INJUNCTIVE REMEDY,' UNDER CLOSELY
DEFINED PROCEDURAL SAFEGUARDS, AGAINST THE SALE AND DISTRIBUTION OF
WRITTEN AND PRINTED MATTER FOUND AFTER DUE TRIAL TO BE OBSCENE,"
KINGSLEY BOOKS SUPRA, AT 437, AND A SCHEME WHICH IN OPERATION INHIBITED
THE CIRCULATION OF PUBLICATIONS INDISCRIMINATELY BECAUSE OF THE ABSENCE
OF ANY SUCH SAFEGUARDS.  FIRST, THE NEW YORK INJUNCTIVE PROCEEDING WAS
INITIATED BY A COMPLAINT FILED WITH THE COURT WHICH CHARGED THAT A
PARTICULAR NAMED OBSCENE PUBLICATION HAD BEEN DISPLAYED, AND TO WHICH
WERE ANNEXED COPIES OF THE PUBLICATION ALLEGED TO BE OBSCENE.  (FN27)
THE COURT, IN RESTRAINING DISTRIBUTION PENDING FINAL JUDICIAL
DETERMINATION OF THE CLAIM, THUS HAD THE ALLEGEDLY OBSCENE MATERIAL
BEFORE IT AND COULD EXERCISE AN INDEPENDENT CHECK ON THE JUDGMENT OF
THE PROSECUTING AUTHORITY AT A POINT BEFORE ANY RESTRAINT TOOK PLACE. 
SECOND, THE RESTRAINTS IN KINGSLEY BOOKS, BOTH TEMPORARY AND PERMANENT,
RAN ONLY AGAINST THE NAMED PUBLICATION; NO CATCHALL RESTRAINT AGAINST
THE DISTRIBUTION OF ALL "OBSCENE" MATERIAL WAS IMPOSED ON THE
DEFENDANTS THERE, COMPARABLE TO THE WARRANTS HERE WHICH AUTHORIZED A
MASS SEIZURE AND THE REMOVAL OF A BROAD RANGE OF ITEMS FROM
CIRCULATION.  (FN28)  THIRD, KINGSLEY BOOKS DOES NOT SUPPORT THE
PROPOSITION THAT THE STATE MAY IMPOSE THE EXTENSIVE RESTRAINTS IMPOSED
HERE ON THE DISTRIBUTION OF THESE PUBLICATIONS PRIOR TO AN ADVERSARY
PROCEEDING ON THE ISSUE OF OBSCENITY, IRRESPECTIVE OF WHETHER OR NOT
THE MATERIAL IS LEGALLY OBSCENE.  THIS COURT EXPRESSLY NOTED THERE THAT
THE STATE WAS NOT ATTEMPTING TO PUNISH THE DISTRIBUTORS FOR
DISOBEDIENCE OF ANY INTERIM ORDER ENTERED BEFORE HEARING.  THE COURT
POINTED OUT THAT NEW YORK MIGHT WELL CONSTRUE ITS OWN LAW AS NOT
IMPOSING ANY PUNISHMENT FOR VIOLATION OF AN INTERIM ORDER WERE THE BOOK
FOUND NOT OBSCENE AFTER DUE TRIAL.  354 U.S., AT 443, N. 2.  BUT THERE
IS NO DOUBT THAT AN EFFECTIVE RESTRAINT - INDEED THE MOST EFFECTIVE
RESTRAINT POSSIBLE - WAS IMPOSED PRIOR TO HEARING ON THE CIRCULATION OF
THE PUBLICATIONS IN THIS CASE, BECAUSE ALL COPIES ON WHICH THE POLICE
COULD LAY THEIR HANDS WERE PHYSICALLY REMOVED FROM THE NEWSSTANDS AND
FROM THE PREMISES OF THE WHOLESALE DISTRIBUTOR.  AN OPPORTUNITY
COMPARABLE TO THAT WHICH THE DISTRIBUTOR IN KINGSLEY BOOKS MIGHT HAVE
HAD TO CIRCULATE THE PUBLICATION DESPITE THE INTERIM RESTRAINT AND THEN
RAISE THE CLAIM OF NONOBSCENITY BY WAY OF DEFENSE TO A PROSECUTION FOR
DOING SO WAS NEVER AFFORDED THESE APPELLANTS BECAUSE THE COPIES THEY
POSSESSED WERE TAKEN AWAY.  THEIR ABILITY TO CIRCULATE THEIR
PUBLICATIONS WAS LEFT TO THE CHANCE OF SECURING OTHER COPIES,
THEMSELVES SUBJECT TO MASS SEIZURE UNDER OTHER SUCH WARRANTS.  THE
PUBLIC'S OPPORTUNITY TO OBTAIN THE PUBLICATIONS WAS THUS DETERMINED BY
THE DISTRIBUTOR'S READINESS AND ABILITY TO OUTWIT THE POLICE BY
OBTAINING AND SELLING OTHER COPIES BEFORE THEY IN TURN COULD BE
SEIZED.  IN ADDITION TO ITS UNSEEMLINESS, WE DO NOT BELIEVE THAT THIS
KIND OF ENFORCED COMPETITION AFFORDS A REASONABLE LIKELIHOOD THAT
NONOBSCENE PUBLICATIONS, ENTITLED TO CONSTITUTIONAL PROTECTION, WILL
REACH THE PUBLIC.  A DISTRIBUTOR MAY HAVE EVERY REASON TO BELIEVE THAT
A PUBLICATION IS CONSTITUTIONALLY PROTECTED AND WILL BE SO HELD AFTER
JUDICIAL HEARING, BUT HIS BELIEF IS UNAVAILING AS AGAINST THE CONTRARY
JUDGMENT OF THE POLICE OFFICER WHO SEIZES IT FROM HIM.  (FN29)
FINALLY, A SUBDIVISION OF THE NEW YORK STATUTE IN KINGSLEY BOOKS
REQUIRED THAT A JUDICIAL DECISION ON THE MERITS OF OBSCENITY BE MADE
WITHIN TWO DAYS OF TRIAL, WHICH IN TURN WAS REQUIRED TO BE WITHIN ONE
DAY OF THE JOINDER OF ISSUE ON THE REQUEST FOR AN INJUNCTION.  (FN30)
IN CONTRAST, THE MISSOURI STATUTORY SCHEME DRAWN IN QUESTION HERE HAS
NO LIMITATION ON THE TIME WITHIN WHICH DECISION MUST BE MADE, ONLY A
PROVISION FOR RAPID TRIAL OF THE ISSUE OF OBSCENITY.  AND IN FACT OVER
TWO MONTHS ELAPSED BETWEEN SEIZURE AND DECISION.  (FN31)  IN THESE
CIRCUMSTANCES THE RESTRAINT ON THE CIRCULATION OF PUBLICATIONS WAS FAR
MORE THOROUGHGOING AND DRASTIC THAN ANY RESTRAINT UPHELD BY THIS COURT
IN KINGSLEY BOOKS. 

MASS SEIZURE IN THE FASHION OF THIS CASE WAS THUS EFFECTED WITHOUT
ANY SAFEGUARDS TO PROTECT LEGITIMATE EXPRESSION.  THE JUDGMENT OF THE
MISSOURI SUPREME COURT SUSTAINING THE CONDEMNATION OF THE 100
PUBLICATIONS THEREFORE CANNOT BE SUSTAINED.  WE HAVE NO OCCASION TO
REACH THE QUESTION OF THE CORRECTNESS OF THE FINDING THAT THE
PUBLICATIONS ARE OBSCENE.  NOR IS IT NECESSARY FOR US TO DECIDE IN THIS
CASE WHETHER MISSOURI LACKS ALL POWER UNDER ITS STATUTORY SCHEME TO
SEIZE AND CONDEMN OBSCENE MATERIAL.  SINCE A VIOLATION OF THE
FOURTEENTH AMENDMENT INFECTED THE PROCEEDINGS IN ORDER TO VINDICATE
APPELLANTS' CONSTITUTIONAL RIGHTS THE JUDGMENT IS REVERSED, AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THESE PROCEDURES ARE SEPARATE FROM AND IN ADDITION TO THE
STATE'S CRIMINAL STATUTES.  SEE STATE V. MAC SALES CO., 263 S.W.2D
860.  THE CRIMINAL STATUTES ARE MO. REV. STAT., SECS. 563.270, 563.280,
563.290; SEE ALSO SEC. 563.310. 

FN2  MO. REV. STAT., SEC. 542.380, IN PERTINENT PART PROVIDES: 

"UPON COMPLAINT BEING MADE, ON OATH, IN WRITING, TO ANY OFFICER
AUTHORIZED TO ISSUE PROCESS FOR THE APPREHENSION OF OFFENDERS, THAT ANY
OF THE PROPERTY OR ARTICLES HEREIN NAMED ARE KEPT WITHIN THE COUNTY OF
SUCH OFFICER, IF HE SHALL BE SATISFIED THAT THERE IS REASONABLE GROUND
FOR SUCH COMPLAINT, SHALL ISSUE A WARRANT TO THE SHERIFF OR ANY
CONSTABLE OF THE COUNTY, DIRECTING HIM TO SEARCH FOR AND SEIZE ANY OF
THE FOLLOWING PROPERTY OR ARTICLES: 

     *         *    *         *         * 

"(2)  ANY OF THE FOLLOWING ARTICLES, KEPT FOR THE PURPOSE OF BEING
SOLD, PUBLISHED, EXHIBITED, GIVEN AWAY OR OTHERWISE DISTRIBUTED OR
CIRCULATED, VIZ.:  OBSCENE, LEWD, LICENTIOUS, INDECENT OR LASCIVIOUS
BOOKS, PAMPHLETS, BALLADS, PAPERS, DRAWINGS, LITHOGRAPHS, ENGRAVINGS,
PICTURES, MODELS, CASTS, PRINTS OR OTHER ARTICLES OR PUBLICATIONS OF AN
INDECENT, IMMORAL OR SCANDALOUS CHARACTER, OR ANY LETTERS, HANDBILLS,
CARDS, CIRCULARS, BOOKS, PAMPHLETS OR ADVERTISEMENTS OR NOTICES OF ANY
KIND GIVING INFORMATION, DIRECTLY OR INDIRECTLY, WHEN, WHERE, HOW OR OF
WHOM ANY OF SUCH THINGS CAN BE OBTAINED."  THESE PROCEDURES ALSO GOVERN
SEIZURE AND CONDEMNATION OF GAMBLING PARAPHERNALIA, CONTRACEPTIVE
DEVICES, AND TOOLS AND OTHER ARTICLES USED TO MANUFACTURE OR PRODUCE
SUCH ITEMS.  FRAUDULENT, FORGED, AND COUNTERFEITED WRITINGS AND OTHER
ARTICLES, AND THE INSTRUMENTS USED TO MAKE THEM, ARE ALSO DECLARED
CONTRABAND AND SUBJECT TO SEIZURE.  SEC. 542.440.    FN3  MISSOURI
SUPREME COURT RULE 33.01 OF THE RULES OF CRIMINAL PROCEDURE PROVIDES: 
"(A)  IF A COMPLAINT IN WRITING BE FILED WITH THE JUDGE OR MAGISTRATE
OF ANY COURT HAVING ORIGINAL JURISDICTION TO TRY CRIMINAL OFFENSES
STATING THAT PERSONAL PROPERTY  ...  THE SEIZURE OF WHICH UNDER SEARCH
WARRANT IS NOW OR MAY HEREAFTER BE AUTHORIZED BY ANY STATUTE OF THIS
STATE, IS BEING HELD OR KEPT AT ANY PLACE OR IN ANY BUILDING  ...
WITHIN THE TERRITORIAL JURISDICTION OF SUCH JUDGE OR MAGISTRATE, AND IF
SUCH COMPLAINT BE VERIFIED BY THE OATH OR AFFIRMATION OF THE
COMPLAINANT AND STATES SUCH FACTS POSITIVELY AND NOT UPON INFORMATION
OR BELIEF; OR IF THE SAME BE SUPPORTED BY WRITTEN AFFIDAVITS VERIFIED
BY OATH OR AFFIRMATION STATING EVIDENTIAL FACTS FROM WHICH SUCH JUDGE
OR MAGISTRATE DETERMINES THE EXISTENCE OF PROBABLE CAUSE, THEN SUCH
JUDGE OR MAGISTRATE SHALL ISSUE A SEARCH WARRANT DIRECTED TO ANY PEACE
OFFICER COMMANDING HIM TO SEARCH THE PLACE THEREIN DESCRIBED AND TO
SEIZE AND BRING BEFORE SUCH JUDGE OR MAGISTRATE THE PERSONAL PROPERTY
THEREIN DESCRIBED. 

"(B)  THE COMPLAINANT AND THE WARRANT ISSUED THEREON MUST CONTAIN A
DESCRIPTION OF THE PERSONAL PROPERTY TO BE SEARCHED FOR AND SEIZED AND
A DESCRIPTION OF THE PLACE TO BE SEARCHED, IN SUFFICIENT DETAIL AND
PARTICULARITY TO ENABLE THE OFFICER SERVING THE WARRANT TO READILY
ASCERTAIN AND IDENTIFY THE SAME." 

FN4  MO. REV. STAT., SEC. 542.400 PROVIDES: 

"THE JUDGE OR MAGISTRATE ISSUING THE WARRANT SHALL SET A DAY, NOT
LESS THAN FIVE DAYS NOR MORE THAN TWENTY DAYS AFTER THE DATE OF SUCH
SERVICE AND SEIZURE, FOR DETERMINING WHETHER SUCH PROPERTY IS THE KIND
OF PROPERTY MENTIONED IN SECTION 542.380, AND SHALL ORDER THE OFFICER
HAVING SUCH PROPERTY IN CHARGE TO RETAIN POSSESSION OF THE SAME UNTIL
AFTER SUCH HEARING.  WRITTEN NOTICE OF THE DATE AND PLACE OF SUCH
HEARING SHALL BE GIVEN, AT LEAST FIVE DAYS BEFORE SUCH DATE, BY POSTING
A COPY OF SUCH NOTICE IN A CONSPICUOUS PLACE UPON THE PREMISES IN WHICH
SUCH PROPERTY IS SEIZED, AND BY DELIVERING A COPY OF SUCH NOTICE TO ANY
PERSON CLAIMING AN INTEREST IN SUCH PROPERTY, WHOSE NAME MAY BE KNOWN
TO THE PERSON MAKING THE COMPLAINT OR TO THE OFFICER ISSUING OR SERVING
SUCH WARRANT, OR LEAVING THE SAME AT THE USUAL PLACE OF ABODE OF SUCH
PERSON WITH ANY MEMBER OF HIS FAMILY OR HOUSEHOLD ABOVE THE AGE OF
FIFTEEN YEARS.  SUCH NOTICE SHALL BE SIGNED BY THE MAGISTRATE OR JUDGE
OR BY THE CLERK OF THE COURT OF SUCH JUDGE." 

FN5  MO. REV. STAT., SEC. 542.410 PROVIDES: 

"RIGHTS OF PROPERTY OWNER.  - THE OWNER OR OWNERS OF SUCH PROPERTY
MAY APPEAR AT SUCH HEARING AND DEFEND AGAINST THE CHARGES AS TO THE
NATURE AND USE OF THE PROPERTY SO SEIZED, AND SUCH JUDGE OR MAGISTRATE
SHALL DETERMINE, FROM THE EVIDENCE PRODUCED AT SUCH HEARING, WHETHER
THE PROPERTY IS THE KIND OF PROPERTY MENTIONED IN SECTION 542.380." 

FN6  MO. REV. STAT., SEC. 542.420 PROVIDES: 

"DISPOSITION OF PROPERTY.  - IF THE JUDGE OR MAGISTRATE HEARING SUCH
CAUSE SHALL DETERMINE THAT THE PROPERTY OR ARTICLES ARE THE KIND
MENTIONED IN SECTION 542.380, HE SHALL CAUSE THE SAME TO BE PUBLICLY
DESTROYED, BY BURNING OR OTHERWISE, AND IF HE FIND THAT SUCH PROPERTY
IS NOT OF THE KIND MENTIONED, HE SHALL ORDER THE SAME RETURNED TO ITS
OWNER.  IF IT APPEARS THAT IT MAY BE NECESSARY TO USE SUCH ARTICLES OR
PROPERTY AS EVIDENCE IN ANY CRIMINAL PROSECUTION, THE JUDGE OR
MAGISTRATE SHALL ORDER THE OFFICER HAVING POSSESSION OF THEM TO RETAIN
SUCH POSSESSION UNTIL SUCH NECESSITY NO LONGER EXISTS, AND THEY SHALL
NEITHER BE DESTROYED NOR RETURNED TO THE OWNER UNTIL THEY ARE NO LONGER
NEEDED AS SUCH EVIDENCE." 

FN7  HE BOUGHT A COPY OF THE SAME MAGAZINE AT THREE OF THE STANDS, A
COPY OF ANOTHER EDITION OF THIS MAGAZINE AT A FOURTH STAND, AND A COPY
OF ONE OTHER MAGAZINE AT THE FIFTH STAND. 

FN8  THE PUBLICATIONS SEIZED INCLUDED SO-CALLED "GIRLIE" MAGAZINES,
NUDIST MAGAZINES, TREATISES AND MANUALS ON SEX, PHOTOGRAPHY MAGAZINES,
CARTOON AND JOKE BOOKS AND STILL PHOTOGRAPHS. 

FN9  BECAUSE OF THE RESULT WHICH WE REACH, IT IS UNNECESSARY TO
DECIDE OTHER CONSTITUTIONAL QUESTIONS RAISED BY THE APPELLANTS, (1)
WHETHER THE MISSOURI STATUTES ARE INVALID ON THEIR FACE AS AUTHORIZING
AN UNCONSTITUTIONAL CENSORSHIP AND PREVIOUS RESTRAINT OF PUBLICATIONS;
(2) WHETHER THE MISSOURI COURTS APPLIED AN UNCONSTITUTIONAL TEST OF
OBSCENITY; AND (3) WHETHER THE PUBLICATIONS CONDEMNED ARE OBSCENE UNDER
THE TEST OF ROTH V. UNITED STATES, 354 U.S. 476. 

FN10  1 ARBER, TRANSCRIPT OF THE REGISTERS OF THE COMPANY OF
STATIONERS OF LONDON, 1554-1640 A.D., P. XXXI. 

FN11  ELTON, THE TUDOR CONSTITUTION, P. 106. 

FN12  ELTON, SUPRA, PP. 182-183. 

FN13  SIEBERT, SUPRA, PP. 83, 85-86, 97. 

FN14  SIEBERT, SUPRA, P. 139, CITING PAT.  ROLL, 9 JAC.  I, PT. 18;
ID., II, PT. 15. 

FN15  4 ARBER, SUPRA, PP. 529-536. 

FN16  SIEBERT, SUPRA, 214-215, NOTE 72. 

FN17  SIEBERT, SUPRA, P. 254, CITING MINUTE ENTRY BOOK 5, P. 177. 

FN18  SIEBERT, SUPRA, P. 256, CITING ENTRY BOOK, CHAS. II, 1664, VOL.
21, P. 21; ALSO VOL. 16, P. 130. 

FN19  CAL. ST. P., DOM.  SER., 1690-1691, P. 74. 

FN20  ONE OF THE PRIMARY OBJECTIONS TO LICENSING WAS ITS ENFORCEMENT
THROUGH SEARCH AND SEIZURE.  THE HOUSE OF COMMONS' LIST OF REASONS WHY
THE LICENSING ACT SHOULD NOT BE RENEWED INCLUDED: "BECAUSE THAT ACT
SUBJECTS ALL MENS HOUSES, AS WELL PEERS AS COMMONERS, TO BE SEARCHED AT
ANY TIME, EITHER BY DAY OR NIGHT, BY A WARRANT UNDER THE SIGN MANUAL,
OR UNDER THE HAND OF ONE OF THE SECRETARIES OF STATE, DIRECTED TO ANY
MESSENGER, IF SUCH MESSENGER SHALL UPON PROBABLE REASON SUSPECT THAT
THERE ARE ANY UNLICENSED BOOKS THERE; AND THE HOUSES OF ALL PERSONS
FREE OF THE COMPANY OF STATIONERS ARE SUBJECT TO THE LIKE SEARCH, ON A
WARRANT FROM THE MASTER AND WARDENS OF THE SAID COMPANY, OR ANY ONE OF
THEM."  15 JOURNALS OF THE HOUSE OF LORDS, APRIL 18, 1695, P. 546. 

FN21  SIEBERT, SUPRA, PP. 374-376. 

FN22  A CONTEMPORARY LONDON PAMPHLET SUMMED UP THE WIDESPREAD
INDIGNATION AGAINST THE USE OF THE GENERAL WARRANT FOR THE SEIZURE OF
PAPERS:  "IN SUCH A PARTY-CRIME, AS A PUBLIC LIBEL, WHO CAN ENDURE THIS
ASSUMED AUTHORITY OF TAKING ALL PAPERS INDISCRIMINATELY?  ...  WHERE
THERE IS EVEN A CHARGE AGAINST ONE PARTICULAR PAPER, TO SEIZE ALL, OF
EVERY KIND, IS EXTRAVAGANT, UNREASONABLE AND INQUISITORIAL.  IT IS
INFAMOUS IN THEORY, AND DOWNRIGHT TYRANNY AND DESPOTISM IN PRACTICE." 
FATHER OF CANDOR, A LETTER CONCERNING LIBELS, WARRANTS, AND SEIZURE OF
PAPERS, P. 48 (2D ED. 1764, J. ALMON PRINTER). 

SEE GENERALLY LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH
AMENDMENT, PP. 42-50; HANSON, GOVERNMENT AND THE PRESS, 1695-1763, PP.
29-32, 49-50.  AN EVEN BROADER FORM OF GENERAL WARRANT WAS THE WRIT OF
ASSISTANCE, WHICH MET SUCH VIGOROUS OPPOSITION IN THE AMERICAN COLONIES
PRIOR TO THE REVOLUTION.  UNLIKE THE WARRANTS OF THE NORTH BRITON
AFFAIR AND ENTICK V. CARRINGTON, WHICH WERE AT LEAST CONCERNED WITH A
PARTICULAR DESIGNATED LIBEL, THESE WRITS EMPOWERED THE EXECUTING
OFFICER TO SEIZE ANY ILLEGALLY IMPORTED GOODS OR MERCHANDISE. 
MOREOVER, IN ADDITION TO AUTHORIZING SEARCH WITHOUT LIMIT OF PLACE,
THEY HAD NO FIXED DURATION.  IN EFFECT, COMPLETE DISCRETION WAS GIVEN
TO THE EXECUTING OFFICIALS; IN THE WORDS OF JAMES OTIS, THEIR USE
PLACED "THE LIBERTY OF EVERY MAN IN THE HANDS OF EVERY PETTY OFFICER." 
TUDOR, LIFE OF JAMES OTIS (1823), P. 66.  SEE LASSON, SUPRA, PP. 51
78. 

FN23  THIS HOLDING APPLIED ALSO TO THE OBSCENITY QUESTION RAISED
UNDER THE FOURTEENTH AMENDMENT IN ALBERTS V. CALIFORNIA, DECIDED IN THE
SAME OPINION. 

FN24  LORD CAMDEN IN ENTICK V. CARRINGTON RECOGNIZED THAT THERE WAS
NO JUSTIFICATION FOR THE ABUSE OF THE SEARCH AND SEIZURE POWER IN
SUPPRESSING SEDITIOUS LIBEL, EVEN IF THE VIEW WERE ACCEPTED THAT "MEN
OUGHT NOT TO BE ALLOWED TO HAVE SUCH EVIL INSTRUMENTS IN THEIR
KEEPING."  19 HOW.  ST. TR., AT 1072.  HE SAID, "IF LIBELS MAY BE
SEIZED, I AM AFRAID, THAT ALL THE INCONVENIENCES OF A GENERAL SEIZURE
WILL FOLLOW UPON A RIGHT ALLOWED TO SEIZE A PART.  THE SEARCH IN SUCH
CASES WILL BE GENERAL, AND EVERY HOUSE WILL FALL UNDER THE POWER OF A
SECRETARY OF STATE TO BE RUMMAGED BEFORE PROPER CONVICTION."  ID., AT
1071. 

FN25  AMONG THE PUBLICATIONS ORDERED RETURNED WERE SUCH TITLES AS
"THE DAWN OF RATIONAL SEX ETHICS," "SEX SYMBOLISM," "NOTES ON CASES OF
SEXUAL SUPPRESSION," "YOUR AFFECTIONS, EMOTIONS AND FEELINGS," "SEXUAL
IMPOTENCE, ITS CAUSES AND TREATMENTS," "THE PSYCHOLOGY OF SEX LIFE,"
"FREUD ON SLEEP AND SEXUAL DREAMS," "THE DETERMINATION OF SEX," "SEX
AND PSYCHOANALYSIS," "ARTIFICIAL INSEMINATION," "SYPHILIS, A TREATISE
FOR THE AMERICAN PUBLIC," "WHAT YOU SHOULD KNOW ABOUT SEXUAL
IMPOTENCY," "VARIATIONS IN SEXUAL BEHAVIOR," "SEX LIFE IN MARRIAGE,"
"PSYCHOPATHIA SEXUALIS," "THE SEX TECHNIQUE IN MARRIAGE," "SEXUAL
DEVIATIONS," "SEX PRACTICE IN LATER YEARS," AND "MARRIAGE, SEX, AND
FAMILY PROBLEMS." 

FN26  ENGLISH PRACTICE IN SUCH CASES HAS PLACED GREATER RESTRAINT ON
THE SEIZURE POWER.  SEIZURE OF OBSCENE MATERIAL, AS A PRELUDE TO
CONDEMNATION, WAS AUTHORIZED THERE BY LORD CAMPBELL'S OBSCENE
PUBLICATIONS ACT OF 1857, 20 & 21 VICT., C. 83.  AS ORIGINALLY
PROPOSED, THAT STATUTE WOULD HAVE ALLOWED SEARCH FOR AND SEIZURE OF
OBSCENE MATTER EITHER UNDER AUTHORITY GRANTED BY MAGISTRATES OR ON
WARRANTS GRANTED BY THE CHIEF COMMISSIONER OF POLICE.  MOREOVER, THE
AFFIDAVIT FOR OBTAINING A WARRANT WOULD HAVE BEEN REQUIRED TO CONTAIN
MERELY THE STATEMENT THAT THE PERSON MAKING IT HAD REASONABLE GROUND
FOR SUSPICION THAT OBSCENE PUBLICATIONS WERE KEPT ON THE PREMISES TO BE
SEARCHED.  SEE 146 HANSARD'S PARLIAMENTARY DEBATES, 3D SERIES, P. 866. 
THESE PROVISIONS MET VIGOROUS OPPOSITION IN PARLIAMENT.  A NUMBER OF
MEMBERS EMPHASIZED THAT THE DIFFICULTY OF DEFINING OBSCENITY MADE BROAD
SEARCH POWERS IN POLICE HANDS EXTREMELY DANGEROUS.  SEE ID., PP. 330
332, 1360-1362, 147 HANSARD, SUPRA, PP. 1863-1864.  AS A RESULT,
AMENDMENTS WERE ADOPTED REMOVING THE GRANT OF AUTHORITY TO THE POLICE
COMMISSIONER TO AUTHORIZE A SEARCH AND SEIZURE, REQUIRING GREATER
SPECIFICITY IN THE ALLEGATIONS BEFORE A WARRANT COULD BE ISSUED, AND
PROVIDING THAT WARRANTS COULD ISSUE ONLY FOR THE SEIZURE OF BOOKS THE
PUBLICATION OF WHICH WOULD CONSTITUTE A COMMON-LAW MISDEMEANOR.  LORD
LYNDHURST, DRAFTSMAN OF THESE AMENDMENTS, EXPLAINED:  "I HAVE NOW
PROVIDED THAT THE PERSON SHALL SWEAR THAT HE HAS REASON TO BELIEVE, AND
THAT HE DOES BELIEVE, THAT THERE ARE SUCH PUBLICATIONS IN SUCH A PLACE,
AND SHALL FURTHER STATE TO THE MAGISTRATE THE REASONS WHICH LEAD TO
THAT BELIEF.  NOR DOES IT STOP THERE.  THE MOST MATERIAL AMENDMENT IS,
THAT HE MUST STATE WHAT THE PUBLICATIONS ARE, AND THAT THEY ARE OF SUCH
A NATURE THAT, IF PUBLISHED, THE PARTY PUBLISHING THEM WILL BE GUILTY
OF A MISDEMEANOUR.  THE MAGISTRATE MUST ALSO BE SATISFIED THAT THE CASE
IS A PROPER ONE FOR A PROSECUTION  ...  ."  146 HANSARD, SUPRA, AT P.
1360.  THE LORD CHANCELLOR SUMMARIZED THE EFFECT OF THE CHANGES:  "AS
THE BILL NOW STOOD, THESE SEARCH-WARRANTS WOULD ONLY BE GRANTED AFTER
GREAT PRECAUTIONS  ... ."  ID., AT P. 1362. 

ACCORDING TO A RECENT SUMMARY OF PROCEDURES TO OBTAIN A WARRANT UNDER
THAT ACT, A POLICE OFFICER WOULD ORDINARILY BUY COPIES OF A WORK HE
SUSPECTED OF OBSCENITY.  THEY WOULD BE EXAMINED BY THE POLICE AND SENT
TO THE DIRECTOR OF PUBLIC PROSECUTIONS.  THE LATTER WOULD RETURN THEM
WITH ADVICE AS TO WHETHER A WARRANT SHOULD BE APPLIED FOR.  IF A
DECISION WERE MADE TO SEEK A WARRANT, THE PUBLICATIONS WOULD BE LAID
BEFORE A MAGISTRATE WITH THE SWORN AFFIDAVIT OF THE OFFICER, IN ORDER
THAT HE MIGHT BE SATISFIED THAT THEY WERE OF THE CHARACTER NECESSARY TO
JUSTIFY SEIZURE.  SEE MEMORANDUM OF THE ASSOCIATION OF CHIEF POLICE
OFFICERS OF ENGLAND AND WALES, MINUTES OF EVIDENCE TAKEN BEFORE THE
SELECT COMMITTEE OF THE HOUSE OF COMMONS ON THE OBSCENE PUBLICATIONS
BILL, 1956-1957, PP. 132-136.  SEE ALSO, ID., P. 23. 

THE ACT WAS REPLACED BY THE OBSCENE PUBLICATIONS ACT OF 1959, 7 & 8
ELIZ.  II, C. 66.  SEE 23 MOD. L. REV. 285. 

FN27  THE FEASIBILITY OF PARTICULARIZATION IN COMPLAINT AND WARRANT
IN A CASE SUCH AS THE PRESENT IS APPARENT, SINCE THE PUBLICATIONS WERE
SOLD ON NEWSSTANDS DISTRIBUTING TO THE PUBLIC.  COMPARE LORD CAMDEN'S
REMARK IN ENTICK V. CARRINGTON, DIRECTED TO THE CONTENTION THAT A
GENERAL WARRANT MIGHT BE JUSTIFIABLE AS A MEANS OF UNCOVERING EVIDENCE
OF CRIME:  "IF  ...  A RIGHT OF SEARCH FOR THE SAKE OF DISCOVERING
EVIDENCE OUGHT IN ANY CASE TO BE ALLOWED, THIS CRIME SEDITIOUS LIBEL
ABOVE ALL OTHERS OUGHT TO BE EXCEPTED, AS WANTING SUCH A DISCOVERY LESS
THAN ANY OTHER.  IT IS COMMITTED IN OPEN DAYLIGHT, AND IN THE FACE OF
THE WORLD; ...  ."  19 HOW.  ST. TR., AT 1074. 

FN28  THE TRIAL JUDGE IN KINGSLEY BOOKS REFUSED TO ENJOIN THE
DISTRIBUTION OF FUTURE ISSUES OF THE PUBLICATION IN QUESTION, STATING:
"UNLESS THE WORK BE BEFORE THE COURT AT THE TIME OF THE HEARING AT
WHICH THE INJUNCTION IS SOUGHT, IT IS INAPPROPRIATE TO MAKE A JUDICIAL
DETERMINATION WITH RESPECT TO IT.  IN RESPECT TO THIS FEATURE OF THE
CASE, THE PLAINTIFF SEEKS A LIKELY TRESPASS UPON A CONSTITUTIONALLY
PROTECTED AREA, AND THE COURT MUST REJECT THAT PRAYER."  208 MISC. 150,
168-169, 142 N.Y.S.2D 735, 751.  CF. NEAR V. MINNESOTA EX REL. OLSON,
283 U.S. 697.    FN29  CF. FREUND, THE SUPREME COURT AND CIVIL
LIBERTIES, 4 VAND.  L. REV. 533, 539. 

BLACKSTONE'S OFTEN-QUOTED FORMULATION OF THE PRINCIPLE OF FREEDOM OF
THE PRESS, THOUGH RESTRICTED TO THE PROHIBITION OF "PREVIOUS RESTRAINTS
UPON PUBLICATIONS," NEVERTHELESS ACKNOWLEDGED THE IMPORTANCE OF AN
ADJUDICATORY PROCEDURE AS A PROTECTION AGAINST THE SUPPRESSION OF
INOFFENSIVE PUBLICATIONS.  HE WROTE:  "TO PUNISH (AS THE LAW DOES AT
PRESENT) ANY DANGEROUS OR OFFENSIVE WRITINGS, WHICH, WHEN PUBLISHED,
SHALL ON A FAIR AND IMPARTIAL TRIAL BE ADJUDGED OF A PERNICIOUS
TENDENCY, IS NECESSARY FOR THE PRESERVATION OF PEACE AND GOOD ORDER
...  ."  4 COMMENTARIES, PP. 151-152.  COMPARE BUTLER, J., DISSENTING
IN NEAR V. MINNESOTA EX REL. OLSON, SUPRA, P. 723:  "THE DECISION OF
THE COURT IN THIS CASE DECLARES MINNESOTA AND EVERY OTHER STATE
POWERLESS TO RESTRAIN BY INJUNCTION THE BUSINESS OF PUBLISHING AND
CIRCULATING AMONG THE PEOPLE MALICIOUS, SCANDALOUS AND DEFAMATORY
PERIODICALS THAT IN DUE COURSE OF JUDICIAL PROCEDURE HAS BEEN ADJUDGED
TO BE A PUBLIC NUISANCE." 

FN30  THIS PROVISION WAS NOT DIRECTLY IMPLICATED IN KINGSLEY BOOKS
BECAUSE THE PARTIES HAD WAIVED THE PROVISION FOR IMMEDIATE TRIAL. 

FN31  COMPARE THE OBJECTION OF THE HOUSE OF COMMONS TO RENEWAL OF
LICENSING:  "BECAUSE THAT ACT APPOINTS NO TIME WHEREIN THE ARCHBISHOP,
OR BISHOP OF LONDON, SHALL APPOINT A LEARNED MAN, OR THAT ONE OR MORE
OF THE COMPANY OF STATIONERS SHALL GO TO THE CUSTOMHOUSE, TO VIEW
IMPORTED BOOKS; SO THAT THEY OR EITHER OF THEM MAY DELAY IT TILL THE
IMPORTER MAY BE UNDONE, BY HAVING SO GREAT A PART OF HIS STOCK LIE DEAD
...  ."  15 JOURNALS OF THE HOUSE OF LORDS, APRIL 18, 1695, P. 546. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

THE WARRANT USED TO SEARCH APPELLANTS' PREMISES MADE NO ATTEMPT
SPECIFICALLY TO DESCRIBE THE "THINGS TO BE SEIZED," AS THE FOURTH
AMENDMENT REQUIRES.  AS THE HISTORICAL SUMMARY IN THE COURT'S OPINION
DEMONSTRATES, A MAJOR PURPOSE OF ADOPTING THAT AMENDMENT WAS TO BAR THE
FEDERAL GOVERNMENT FROM USING PRECISELY THIS KIND OF GENERAL WARRANT TO
SUPPORT "UNREASONABLE SEARCHES AND SEIZURES" OF THE "PAPERS" AND
"EFFECTS" OF PERSONS HAVING POSSESSION OF THEM.  SEE ESPECIALLY ENTICK
V. CARRINGTON, 19 HOWELL'S STATE TRIALS 1029, AT 1073-1076; BOYD V.
UNITED STATES, 116 U.S. 616, 624-630; FRANK V. MARYLAND, 359 U.S. 360,
373 (DISSENTING OPINION).  IT IS MY VIEW THAT THE FOURTEENTH AMENDMENT
MAKES THE FOURTH AMENDMENT APPLICABLE TO THE STATES TO THE FULL EXTENT
OF ITS TERMS, JUST AS IT APPLIES TO THE FEDERAL GOVERNMENT.  SEE
ADAMSON V. CALIFORNIA, 332 U.S. 46, 68 (DISSENTING OPINION).  ONLY LAST
TERM WE SAID THAT IN WOLF V. COLORADO, 338 U.S. 25, "IT WAS
UNEQUIVOCALLY DETERMINED BY A UNANIMOUS COURT THAT THE FEDERAL
CONSTITUTION, BY VIRTUE OF THE FOURTEENTH AMENDMENT, PROHIBITS
UNREASONABLE SEARCHES AND SEIZURES BY STATE OFFICERS."  ELKINS V.
UNITED STATES, 364 U.S. 206, 213.  AND IN MAPP V. OHIO, ANTE, P. 643,
IT IS SAID THAT "SINCE THE FOURTH AMENDMENT'S RIGHT OF PRIVACY HAS BEEN
DECLARED ENFORCEABLE AGAINST THE STATES THROUGH THE DUE PROCESS CLAUSE
OF THE FOURTEENTH, IT IS ENFORCEABLE AGAINST THEM BY THE SAME SANCTION
OF EXCLUSION AS IS USED AGAINST THE FEDERAL GOVERNMENT."  SINCE THE
STATE HAS USED A GENERAL WARRANT IN THIS CASE IN VIOLATION OF THE
PROHIBITIONS OF THE FOURTH AND FOURTEENTH AMENDMENTS, I CONCUR IN
REVERSAL OF THE JUDGMENT. 
..END :














INTERNATIONAL ASSOCIATION OF MACHINISTS V. STREET 367 U.S. 740 


NO. 4.  ARGUED APRIL 21, 1960 - SET FOR REARGUMENT JUNE 20, 1960 -
REARGUED JANUARY 17-18, 1961 - DECIDED JUNE 19, 1961 - 215 GA. 27, 108
S.E.2D 796, JUDGMENT REVERSED AND CASE REMANDED. 


A GROUP OF RAILROAD EMPLOYEES SUED IN A GEORGIA STATE COURT TO ENJOIN
ENFORCEMENT OF A UNION-SHOP AGREEMENT ENTERED INTO BETWEEN A GROUP OF
RAILROADS AND LABOR UNIONS OF THEIR EMPLOYEES UNDER SEC. 2, ELEVENTH,
OF THE RAILWAY LABOR ACT WHICH REQUIRED ALL EMPLOYEES TO JOIN THE UNION
AND TO PAY INITIATION FEES, ASSESSMENTS AND DUES, IN ORDER TO KEEP
THEIR JOBS.  THE COMPLAINT ALLEGED THAT A SUBSTANTIAL PART OF THE MONEY
EACH OF THESE EMPLOYES WAS THUS COMPELLED TO PAY WAS USED OVER HIS
PROTEST TO FINANCE THE CAMPAIGNS OF POLITICAL CANDIDATES WHOM HE
OPPOSED AND TO PROMOTE THE PROPAGATION OF POLITICAL AND ECONOMIC
DOCTRINES, CONCEPTS, AND IDEOLOGIES WITH WHICH HE DISAGREED.  THE TRIAL
COURT FOUND THAT THE ALLEGATIONS WERE FULLY PROVED AND THAT, IN THESE
CIRCUMSTANCES, THE UNION-SHOP AGREEMENT VIOLATED THE COMPLAINING
EMPLOYEES' RIGHTS UNDER THE FIRST AMENDMENT.  IT ENJOINED ENFORCEMENT
OF THE UNION-SHOP AGREEMENT AND AWARDED SOME OF THE EMPLOYEES JUDGMENTS
FOR THE MONEY THEY HAD BEEN REQUIRED TO PAY.  THE SUPREME COURT OF
GEORGIA AFFIRMED.  HELD:  THE JUDGMENT IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS.  PP. 742-775. 

1.  IN RAILWAY EMPLOYES' DEPT. V. HANSON, 351 U.S. 225, THIS COURT
HELD THAT ENACTMENT OF THE PROVISION OF SEC. 2, ELEVENTH, WHICH
AUTHORIZES UNION-SHOP AGREEMENTS BETWEEN INTERSTATE RAILROADS AND
UNIONS OF THEIR EMPLOYEES, WAS A VALID EXERCISE BY CONGRESS OF ITS
POWERS UNDER THE COMMERCE CLAUSE AND DID NOT, ON ITS FACE, VIOLATE THE
FIRST AMENDMENT OR THE DUE PROCESS CLAUSE OF THE  FIFTH AMENDMENT; BUT
IT RESERVED DECISION ON THE CONSTITUTIONAL QUESTIONS PRESENTED IN THIS
CASE BY THE ACTUAL APPLICATION OF THAT SECTION AND THE UNION-SHOP
AGREEMENTS ENTERED INTO THEREUNDER.  PP. 746-749. 

2.  THOUGH THE RECORD IN THIS CASE ADEQUATELY PRESENTS THOSE
CONSTITUTIONAL QUESTIONS, IT IS NOT NECESSARY FOR THIS COURT TO DECIDE
THE CORRECTNESS OF THE CONSTITUTIONAL DETERMINATIONS MADE BY THE
GEORGIA COURTS, BECAUSE SEC. 2, ELEVENTH, DENIES AUTHORITY TO A UNION,
OVER THE EMPLOYEE'S OBJECTION, TO SPEND HIS MONEY FOR POLITICAL CAUSES
WHICH HE OPPOSES.  PP. 749-770. 

(A)  A REVIEW OF THE LEGISLATIVE HISTORY OF THE RAILWAY LABOR ACT
LEADS TO THE CONCLUSION THAT THE PURPOSE OF SEC. 2, ELEVENTH, IS TO
FORCE EMPLOYEES TO SHARE THE COSTS OF NEGOTIATING AND ADMINISTERING
COLLECTIVE AGREEMENTS AND ADJUSTING AND SETTLING DISPUTES.  PP. 750
764. 

(B)  SECTION 2, ELEVENTH, DENIES THE UNIONS THE POWER, OVER AN
EMPLOYEE'S OBJECTION, TO USE HIS EXACTED FUNDS TO SUPPORT POLITICAL
CAUSES WHICH HE OPPOSES.  PP. 765-770. 

3.  THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS, INCLUDING THE FASHIONING OF A MORE APPROPRIATE REMEDY. 
PP. 771-775. 

(A)  THE UNION-SHOP AGREEMENT ITSELF IS NOT UNLAWFUL AND THE
EMPLOYEES HERE INVOLVED REMAIN OBLIGATED, AS A CONDITION OF CONTINUED
EMPLOYMENT, TO MAKE THE PAYMENTS TO THEIR RESPECTIVE UNIONS CALLED FOR
BY THE AGREEMENT.  P. 771. 

(B)  THE INJUNCTION RESTRAINING ENFORCEMENT OF THE UNION-SHOP
AGREEMENT IS NOT A REMEDY APPROPRIATE TO THE VIOLATION OF THE ACT'S
RESTRICTIONS ON EXPENDITURES.  PP. 771-772. 

(C)  A BLANKET INJUNCTION AGAINST ALL EXPENDITURES OF FUNDS FOR THE
DISPUTED PURPOSES, EVEN ONE CONDITIONED ON CESSATION OF IMPROPER
EXPENDITURES, WOULD NOT BE A PROPER EXERCISE OF EQUITABLE DISCRETION. 
PP. 772-773. 

(D)  ANY REMEDY SHOULD BE GRANTED ONLY TO EMPLOYEES WHO HAVE MADE
KNOWN TO THE UNION OFFICIALS THAT THEY DO NOT DESIRE THEIR FUNDS TO BE
USED FOR POLITICAL CAUSES TO WHICH THEY OBJECT.  P. 774. 

(E)  THE PRESENT ACTION IS NOT A TRUE CLASS ACTION, SINCE THERE WAS
NO ATTEMPT TO PROVE THE EXISTENCE OF A CLASS OF WORKERS WHO HAD
SPECIFICALLY OBJECTED TO THE EXACTION OF DUES FOR POLITICAL PURPOSES. 
THEREFORE, ONLY THOSE WHO HAVE IDENTIFIED THEMSELVES AS OPPOSED TO
POLITICAL USES OF THEIR FUNDS ARE ENTITLED TO RELIEF IN THIS ACTION. 
P. 774. 

(F)  ONE POSSIBLE REMEDY WOULD BE AN INJUNCTION AGAINST EXPENDITURE
FOR POLITICAL CAUSES OPPOSED BY EACH COMPLAINING EMPLOYEE OF A SUM,
FROM THOSE MONEYS TO BE SPENT BY THE UNION FOR POLITICAL PURPOSES,
WHICH IS SO MUCH OF THE MONEYS EXACTED FROM HIM AS IS THE PROPORTION OF
THE UNION'S TOTAL EXPENDITURES MADE FOR SUCH POLITICAL ACTIVITIES TO
THE UNION'S TOTAL BUDGET.  PP. 774-775. 

(G)  ANOTHER POSSIBLE REMEDY WOULD BE RESTITUTION TO EACH INDIVIDUAL
EMPLOYEE OF THAT PORTION OF HIS MONEY WHICH THE UNION EXPENDED, DESPITE
HIS NOTIFICATION, FOR THE POLITICAL CAUSES TO WHICH HE ADVISED THE
UNION HE WAS OPPOSED.  P. 775. 

INTERNATIONAL ASSOCIATION OF MACHINISTS ET AL. V. STREET ET AL. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

A GROUP OF LABOR ORGANIZATIONS, APPELLANTS HERE, AND THE CARRIERS
COMPRISING THE SOUTHERN RAILWAY SYSTEM, ENTERED INTO A UNION-SHOP
AGREEMENT PURSUANT TO THE AUTHORITY OF SEC. 2, ELEVENTH OF THE RAILWAY
LABOR ACT.  (FN1)  THE AGREEMENT REQUIRES EACH OF THE APPELLEES,
EMPLOYEES OF THE CARRIERS, AS A CONDITION OF CONTINUED EMPLOYMENT, TO
PAY THE APPELLANT UNION REPRESENTING HIS PARTICULAR CLASS OR CRAFT THE
DUES, INITIATION FEES AND ASSESSMENTS UNIFORMLY REQUIRED AS A CONDITION
OF ACQUIRING OR RETAINING UNION MEMBERSHIP.  THE APPELLEES, IN BEHALF
OF THEMSELVES AND OF EMPLOYEES SIMILARLY SITUATED, BROUGHT THIS ACTION
IN THE SUPERIOR COURT OF BIBB COUNTY, GEORGIA, ALLEGING THAT THE MONEY
EACH WAS THUS COMPELLED TO PAY TO HOLD HIS JOB WAS IN SUBSTANTIAL PART
USED TO FINANCE THE CAMPAIGNS OF CANDIDATES FOR FEDERAL AND STATE
OFFICES WHOM HE OPPOSED, AND TO PROMOTE THE PROPAGATION OF POLITICAL
AND ECONOMIC DOCTRINES, CONCEPTS AND IDEOLOGIES WITH WHICH HE
DISAGREED.  THE SUPERIOR COURT FOUND THAT THE ALLEGATIONS WERE FULLY
PROVED (FN2) AND ENTERED A JUDGMENT AND DECREE ENJOINING THE
ENFORCEMENT OF THE UNION-SHOP AGREEMENT ON THE GROUND THAT SEC. 2,
ELEVENTH VIOLATES THE FEDERAL CONSTITUTION TO THE EXTENT THAT IT
PERMITS SUCH USE BY THE APPELLANTS OF THE FUNDS EXACTED FROM
EMPLOYEES.  (FN3)  THE SUPREME COURT OF GEORGIA AFFIRMED, 215 GA. 27,
108 S.E.2D 796.  (FN4)  ON APPEAL TO THIS COURT UNDER 28 U.S.C. SEC.
1257(1), WE NOTED PROBABLE JURISDICTION, 361 U.S. 807. 

                                        I.

                              THE HANSON DECISION. 

WE HELD IN RAILWAY EMPLOYES' DEPT. V. HANSON, 351 U.S. 225, THAT
ENACTMENT OF THE PROVISION OF SEC. 2, ELEVENTH AUTHORIZING UNION-SHOP
AGREEMENTS BETWEEN INTERSTATE RAILROADS AND UNIONS OF THEIR EMPLOYEES
WAS A VALID EXERCISE BY CONGRESS OF ITS POWERS UNDER THE COMMERCE
CLAUSE AND DID NOT VIOLATE THE FIRST AMENDMENT OR THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT.  IT IS ARGUED THAT OUR DISPOSITION OF
THE FIRST AMENDMENT CLAIMS IN HANSON DISPOSES OF APPELLEES'
CONSTITUTIONAL CLAIMS IN THIS CASE ADVERSELY TO THEIR CONTENTIONS.  WE
DISAGREE.  AS APPEARS FROM ITS HISTORY, THAT CASE DECIDED ONLY THAT
SEC. 2, ELEVENTH, IN AUTHORIZING COLLECTIVE AGREEMENTS CONDITIONING
EMPLOYEES' CONTINUED EMPLOYMENT ON PAYMENT OF UNION DUES, INITIATION
FEES AND ASSESSMENTS, DID NOT ON ITS FACE IMPINGE UPON PROTECTED RIGHTS
OF ASSOCIATION.  THE NEBRASKA SUPREME COURT IN HANSON, UPHOLDING THE
EMPLOYEES' CONTENTION THAT THE UNION SHOP COULD NOT CONSTITUTIONALLY BE
ENFORCED AGAINST THEM, STATED THAT THE UNION SHOP "IMPROPERLY BURDENS
THEIR RIGHT TO WORK AND INFRINGES UPON THEIR FREEDOMS.  THIS IS
PARTICULARLY TRUE AS TO THE LATTER BECAUSE IT IS APPARENT THAT SOME OF
THESE LABOR ORGANIZATIONS ADVOCATE POLITICAL IDEAS, SUPPORT POLITICAL
CANDIDATES, AND ADVANCE NATIONAL ECONOMIC CONCEPTS WHICH MAY OR MAY NOT
BE OF AN EMPLOYEE'S CHOICE."  160 NEB. 669, 697, 71 N.W.2D 526, 546. 
THAT STATEMENT WAS MADE IN THE CONTEXT OF THE ARGUMENT THAT COMPELLING
AN INDIVIDUAL TO BECOME A MEMBER OF AN ORGANIZATION WITH POLITICAL
ASPECTS IS AN INFRINGEMENT OF THE CONSTITUTIONAL FREEDOM OF
ASSOCIATION, WHATEVER MAY BE THE CONSTITUTIONALITY OF COMPULSORY
FINANCIAL SUPPORT OF GROUP ACTIVITIES OUTSIDE THE POLITICAL PROCESS. 
THE NEBRASKA COURT'S REFERENCE TO THE SUPPORT OF POLITICAL IDEAS,
CANDIDATES, AND ECONOMIC CONCEPTS "WHICH MAY OR MAY NOT BE OF AN
EMPLOYEE'S CHOICE" INDICATES THAT IT WAS CONSIDERING AT MOST THE
QUESTION OF COMPELLED MEMBERSHIP IN AN ORGANIZATION WITH POLITICAL
FACETS.  IN THEIR BRIEF IN THIS COURT THE APPELLEES IN HANSON ARGUED
THAT FIRST AMENDMENT RIGHTS WOULD BE INFRINGED BY THE ENFORCEMENT OF AN
AGREEMENT WHICH WOULD ENABLE COMPULSORILY COLLECTED FUNDS TO BE USED
FOR POLITICAL PURPOSES.  BUT THERE WAS NOTHING CONCRETE IN THE RECORD
TO SHOW THE EXTENT TO WHICH THE UNIONS WERE ACTUALLY SPENDING MONEY FOR
POLITICAL PURPOSES AND WHAT THESE PURPOSES WERE, NOTHING TO SHOW THE
EXTENT TO WHICH UNION FUNDS COLLECTED FROM MEMBERS WERE BEING USED TO
MEET THE COSTS OF POLITICAL ACTIVITY AND THE MECHANISM BY WHICH THIS
WAS DONE, AND NOTHING TO SHOW THAT THE EMPLOYEES THERE INVOLVED OPPOSED
THE USE OF THEIR MONEY FOR ANY PARTICULAR POLITICAL OBJECTIVE.  (FN5)
IN CONTRAST, THE PRESENT RECORD CONTAINS DETAILED INFORMATION ON ALL
THESE POINTS, AND SPECIFIC FINDINGS WERE MADE IN THE COURTS BELOW AS TO
ALL OF THEM.  WHEN IT IS RECALLED THAT THE ACTION IN HANSON WAS BROUGHT
BEFORE THE UNION-SHOP AGREEMENT BECAME EFFECTIVE AND THAT THE APPELLEES
NEVER THEREAFTER SHOWED THAT THE UNIONS WERE ACTUALLY ENGAGED IN
FURTHERING POLITICAL CAUSES WITH WHICH THEY DISAGREED AND THAT THEIR
MONEY WOULD BE USED TO SUPPORT SUCH ACTIVITIES, IT BECOMES OBVIOUS THAT
THIS COURT PASSED MERELY ON THE CONSTITUTIONAL VALIDITY OF SEC. 2,
ELEVENTH OF THE RAILWAY LABOR ACT ON ITS FACE, AND NOT AS APPLIED TO
INFRINGE THE PARTICULARIZED CONSTITUTIONAL RIGHTS OF ANY INDIVIDUAL. 
ON SUCH A RECORD, THE COURT COULD NOT HAVE DONE MORE, CONSISTENTLY WITH
THE RESTRAINTS THAT GOVERN US IN THE ADJUDICATION OF CONSTITUTIONAL
QUESTIONS AND WARN AGAINST THEIR PREMATURE DECISION.  WE THEREFORE
RESERVED DECISION OF THE CONSTITUTIONAL QUESTIONS WHICH THE APPELLEES
PRESENT IN THIS CASE.  WE SAID:  "IT IS ARGUED THAT COMPULSORY
MEMBERSHIP WILL BE USED TO IMPAIR FREEDOM OF EXPRESSION.  BUT THAT
PROBLEM IS NOT PRESENTED BY THIS RECORD.  ...  IF THE EXACTION OF DUES,
INITIATION FEES, OR ASSESSMENTS IS USED AS A COVER FOR FORCING
IDEOLOGICAL CONFORMITY OR OTHER ACTION IN CONTRAVENTION OF THE FIRST
AMENDMENT, THIS JUDGMENT WILL NOT PREJUDICE THE DECISION IN THAT CASE. 
FOR WE PASS NARROWLY ON SEC. 2, ELEVENTH OF THE RAILWAY LABOR ACT.  WE
ONLY HOLD THAT THE REQUIREMENTS FOR FINANCIAL SUPPORT OF THE COLLECTIVE
BARGAINING AGENCY BY ALL WHO RECEIVE THE BENEFITS OF ITS WORK IS WITHIN
THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE AND DOES NOT VIOLATE
EITHER THE FIRST OR THE FIFTH AMENDMENTS."  ID., P. 238.  SEE ALSO P.
242 (CONCURRING OPINION).  THUS ALL THAT WAS HELD IN HANSON WAS THAT
SEC. 2, ELEVENTH WAS CONSTITUTIONAL IN ITS BARE AUTHORIZATION OF UNION
SHOP CONTRACTS REQUIRING WORKERS TO GIVE "FINANCIAL SUPPORT" TO UNIONS
LEGALLY AUTHORIZED TO ACT AS THEIR COLLECTIVE BARGAINING AGENTS.  WE
SUSTAINED THIS REQUIREMENT - AND ONLY THIS REQUIREMENT - EMBODIED IN
THE STATUTORY AUTHORIZATION OF AGREEMENTS UNDER WHICH "ALL EMPLOYEES
SHALL BECOME MEMBERS OF THE LABOR ORGANIZATION REPRESENTING THEIR CRAFT
OR CLASS."  CLEARLY WE PASSED NEITHER UPON FORCED ASSOCIATION IN ANY
OTHER ASPECT NOR UPON THE ISSUE OF THE USE OF EXACTED MONEY FOR
POLITICAL CAUSES WHICH WERE OPPOSED BY THE EMPLOYEES. 

THE RECORD IN THIS CASE IS ADEQUATE SQUARELY TO PRESENT THE
CONSTITUTIONAL QUESTIONS RESERVED IN HANSON.  THESE ARE QUESTIONS OF
THE UTMOST GRAVITY.  HOWEVER, THE RESTRAINTS AGAINST UNNECESSARY
CONSTITUTIONAL DECISIONS COUNSEL AGAINST THEIR DETERMINATION UNLESS WE
MUST CONCLUDE THAT CONGRESS, IN AUTHORIZING A UNION SHOP UNDER SEC. 2,
ELEVENTH, ALSO MEANT THAT THE LABOR ORGANIZATION RECEIVING AN
EMPLOYEE'S MONEY SHOULD BE FREE, DESPITE THAT EMPLOYEE'S OBJECTION, TO
SPEND HIS MONEY FOR POLITICAL CAUSES WHICH HE OPPOSES.  FEDERAL
STATUTES ARE TO BE SO CONSTRUED AS TO AVOID SERIOUS DOUBT OF THEIR
CONSTITUTIONALITY.  "WHEN THE VALIDITY OF AN ACT OF THE CONGRESS IS
DRAWN IN QUESTION, AND EVEN 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.  EACH
NAMED APPELLEE IN THIS ACTION HAS MADE KNOWN TO THE UNION REPRESENTING
HIS CRAFT OR CLASS HIS DISSENT FROM THE USE OF HIS MONEY FOR POLITICAL
CAUSES WHICH HE OPPOSES.  WE HAVE THEREFORE EXAMINED THE LEGISLATIVE
HISTORY OF SEC. 2, ELEVENTH IN THE CONTEXT OF THE DEVELOPMENT OF
UNIONISM IN THE RAILROAD INDUSTRY UNDER THE REGULATORY SCHEME CREATED
BY THE RAILWAY LABOR ACT TO DETERMINE WHETHER A CONSTRUCTION IS "FAIRLY
POSSIBLE" WHICH DENIES THE AUTHORITY TO A UNION, OVER THE EMPLOYEE'S
OBJECTION, TO SPEND HIS MONEY FOR POLITICAL CAUSES WHICH HE OPPOSES. 
WE CONCLUDE THAT SUCH A CONSTRUCTION IS NOT ONLY "FAIRLY POSSIBLE" BUT
ENTIRELY REASONABLE, AND WE THEREFORE FIND IT UNNECESSARY TO DECIDE THE
CORRECTNESS OF THE CONSTITUTIONAL DETERMINATIONS MADE BY THE GEORGIA
COURTS. 

                                       II.

                    THE RAIL UNIONS AND UNION SECURITY. 

THE HISTORY OF UNION SECURITY IN THE RAILWAY INDUSTRY IS MARKED FIRST,
BY A STRONG AND LONG-STANDING TRADITION OF VOLUNTARY UNIONISM ON THE
PART OF THE STANDARD RAIL UNIONS; (FN6) SECOND, BY THE DECLARATION IN
1934 OF A CONGRESSIONAL POLICY OF COMPLETE FREEDOM OF CHOICE OF
EMPLOYEES TO JOIN OR NOT TO JOIN A UNION; THIRD, BY THE MODIFICATION OF
THE FIRM LEGISLATIVE POLICY AGAINST COMPULSION, BUT ONLY AS A SPECIFIC
RESPONSE TO THE RECOGNITION OF THE EXPENSES AND BURDENS INCURRED BY THE
UNIONS IN THE ADMINISTRATION OF THE COMPLEX SCHEME OF THE RAILWAY LABOR
ACT. 

WHEN THE QUESTION OF UNION SECURITY IN THE RAIL INDUSTRY WAS FIRST
GIVEN DETAILED CONSIDERATION BY CONGRESS IN 1934 (FN7) ONLY ONE OF THE
STANDARD UNIONS HAD SECURITY PROVISIONS IN ANY OF ITS CONTRACTS.  THE
BROTHERHOOD OF RAILROAD TRAINMEN MAINTAINED A NUMBER OF SO-CALLED
"PERCENTAGE" CONTRACTS, REQUIRING THAT IN CERTAIN CLASSES OF EMPLOYEES
REPRESENTED BY THE BROTHERHOOD, A SPECIFIED PERCENTAGE OF EMPLOYEES HAD
TO BELONG TO THE UNION.  THESE CONTRACTS APPLIED ONLY TO YARD
CONDUCTORS, YARD BRAKEMEN AND SWITCHMEN, AND COVERED NO MORE THAN
10,000 WORKERS, ABOUT 1% OF ALL RAIL EMPLOYEES.  SEE LETTER FROM JOSEPH
B. EASTMAN, FEDERAL COORDINATOR OF TRANSPORTATION, TO CHAIRMAN OF THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, JUNE 7, 1934, H.R.
REP. NO. 1944, 73D CONG., 2D SESS., PP. 14-16; TESTIMONY OF JAMES A.
FARQUHARSON, LEGISLATIVE REPRESENTATIVE OF THE BROTHERHOOD OF RAILROAD
TRAINMEN, HEARINGS ON H.R. 7650, HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 73D CONG., 2D SESS., PP. 94-105. 

DURING CONGRESSIONAL CONSIDERATION OF THE 1934 LEGISLATION, THE RAIL
UNIONS ATTEMPTED TO PERSUADE CONGRESS NOT TO PRECLUDE THEM FROM
NEGOTIATING SECURITY ARRANGEMENTS.  BY AMENDMENTS TO THE ORIGINAL
PROPOSAL, THEY SOUGHT TO ASSURE THAT THE PROVISION WHICH BECAME SEC. 2,
FIFTH SHOULD PREVENT THE CARRIERS FROM CONDITIONING EMPLOYMENT ON
MEMBERSHIP IN A COMPANY UNION BUT SHOULD EXEMPT THE STANDARD UNIONS
FROM ITS PROHIBITIONS.  THE TRAINMEN, THE ONLY UNION WHICH STOOD TO
LOSE EXISTING CONTRACTS IF THE SECTION WAS NOT LIMITED TO COMPANY
UNIONS, ESPECIALLY URGED SUCH A LIMITATION.  SEE STATEMENT OF A.F.
WHITNEY, PRESIDENT, S. REP. NO. 1065, 73D CONG., 2D SESS., PT. 2, P. 2;
SEE ALSO 78 CONG. REC. 12372, 12376. 

THE UNIONS SUCCEEDED IN HAVING THE HOUSE INCORPORATE SUCH A
LIMITATION IN THE BILL IT PASSED.  SEE H.R. REP. NO. 1944, 73D CONG.,
2D SESS. 2, 6; 78 CONG. REC. 11710-11720.  BUT THE SENATE DID NOT
ACQUIESCE.  EASTMAN, A FIRM BELIEVER IN COMPLETE FREEDOM OF EMPLOYEES
IN THEIR CHOICE OF REPRESENTATIVES, STRONGLY OPPOSED THE LIMITATION. 
HE CHARACTERIZED IT AS "VICIOUS, BECAUSE IT STRIKES AT THE PRINCIPLE OF
FREEDOM OF CHOICE WHICH THE BILL IS DESIGNED TO PROTECT.  THE
PROHIBITED PRACTICES ACQUIRE NO VIRTUE BY BEING CONFINED TO SO-CALLED
'STANDARD UNIONS.'  ...  WITHIN RECENT YEARS, THE PRACTICE OF TYING UP
MEN'S JOBS WITH LABOR-UNION MEMBERSHIP HAS CREPT INTO THE RAILROAD
INDUSTRY WHICH THERETOFORE WAS SINGULARLY CLEAN IN THIS RESPECT.  THE
PRACTICE HAS BEEN LARGELY IN CONNECTION WITH COMPANY UNIONS BUT NOT
ENTIRELY.  IF GENUINE FREEDOM OF CHOICE IS TO BE THE BASIS OF LABOR
RELATIONS UNDER THE RAILWAY LABOR ACT, AS IT SHOULD BE, THEN THE YELLOW
DOG CONTRACT, AND ITS COROLLARY, THE CLOSED SHOP, AND THE SO-CALLED
'PERCENTAGE CONTRACT' HAVE NO PLACE IN THE PICTURE."  HEARINGS ON S.
3266, SENATE COMMITTEE ON INTERSTATE COMMERCE, 73D CONG., 2D SESS., P.
157.  (FN8) EASTMAN'S VIEWS PREVAILED IN THE SENATE, AND THE HOUSE
CONCURRED IN A FINAL VERSION OF SEC. 2, FIFTH, PROVIDING THAT "NO
CARRIER  ...  SHALL REQUIRE ANY PERSON SEEKING EMPLOYMENT TO SIGN ANY
CONTRACT OR AGREEMENT PROMISING TO JOIN OR NOT TO JOIN A LABOR
ORGANIZATION."  SEE 78 CONG. REC. 12369-12376, 12382-12388, 12389
12398, 12400-12402, 12549-12555. 

DURING WORLD WAR II, THE NONOPERATING UNIONS MADE AN UNSUCCESSFUL
ATTEMPT TO OBTAIN UNION SECURITY, INCIDENTAL TO AN EFFORT TO SECURE A
WAGE INCREASE.  FOLLOWING THE FAILURE OF NEGOTIATIONS AND MEDIATION, A
PRESIDENTIAL EMERGENCY BOARD WAS APPOINTED.  TWO PRINCIPAL REASONS WERE
ADVANCED BY THE UNIONS.  THEY URGED THAT IN VIEW OF THEIR PLEDGE NOT TO
STRIKE FOR THE DURATION AND THEIR RESPONSIBILITIES TO ASSURE
UNINTERRUPTED OPERATION OF THE RAILROADS, THEY WERE JUSTIFIED IN
SEEKING TO MAINTAIN THEIR POSITIONS BY UNION SECURITY ARRANGEMENTS. 
THEY ALSO MAINTAINED THAT SINCE THEY SECURED BENEFITS THROUGH
COLLECTIVE BARGAINING FOR ALL EMPLOYEES THEY REPRESENTED, IT WAS FAIR
THAT THE COSTS OF THEIR OPERATIONS BE SHARED BY ALL WORKERS.  THE BOARD
RECOMMENDED WITHDRAWAL OF THE REQUEST, CONCLUDING THAT THE UNION SHOP
WAS PLAINLY FORBIDDEN BY THE RAILWAY LABOR ACT AND THAT IN ANY EVENT
THE UNIONS HAD FAILED TO SHOW ITS NECESSITY OR UTILITY.  PRESIDENTIAL
EMERGENCY BOARD, APPOINTED FEB. 20, 1943, REPORT OF MAY 24, 1943;
SUPPLEMENTAL REPORT, MAY 29, 1943.  THE REPORT SAID:  "THE BOARD IS
CONVINCED THAT THE ESSENTIAL ELEMENTS OF THE UNION SHOP AS DEFINED IN
THE EMPLOYEES' REQUEST ARE PROHIBITED BY SECTION 2 OF THE RAILWAY LABOR
ACT.  THE INTENT OF CONGRESS IN THIS RESPECT IS MADE EVIDENT, WITH
UNUSUAL CLARITY."  SUPPLEMENTAL REPORT, SUPRA, P. 29.  (FN9)  ON THE
MERITS OF THE ISSUE, THE BOARD EXPRESSLY REJECTED THE CLAIM THAT UNION
SECURITY WAS NECESSARY TO PROTECT THE BARGAINING POSITION OF THE
UNIONS:  "THE UNIONS ARE NOT SUFFERING FROM A FALLING OFF IN MEMBERS. 
ON THE CONTRARY,  ...  MEMBERSHIP HAS BEEN GROWING AND AT THE PRESENT
TIME APPEARS TO BE THE LARGEST IN RAILROAD HISTORY, WITH LESS THAN 10
PERCENT NONMEMBERSHIP AMONG THE EMPLOYEES HERE REPRESENTED." 
SUPPLEMENTAL REPORT, P. 31.  "THE EVIDENCE PRESENTED WITH RESPECT TO
DANGER FROM PREDATORY RIVALS SEEMED TO THE BOARD LACKING IN
SUFFICIENCY; ESPECIALLY SO IN THE LIGHT OF THE EVIDENCE CONCERNING
MEMBERSHIP GROWTH."  IBID.  "NO EVIDENCE WAS PRESENTED INDICATING THAT
THE UNIONS STAND IN JEOPARDY BY REASON OF CARRIER OPPOSITION.  A FEW
RAILROADS WERE MENTIONED ON WHICH SOME OF THE UNIONS DO NOT REPRESENT A
MAJORITY OF THEIR CRAFT OR CLASS, AND DO NOT HAVE BARGAINING
RELATIONSHIPS WITH THE CARRIER.  BUT THE EXHIBITS SHOW THAT THESE
UNIONS ARE THE CHOSEN REPRESENTATIVES OF THE EMPLOYEES ON THE
OVERWHELMING MAJORITY OF THE RAILROADS, AND THAT RECOGNITION OF THE
UNIONS IS GENERAL.  THE BOARD DOES NOT FIND THEREFORE THAT A SUFFICIENT
CASE HAS BEEN MADE FOR THE NECESSITY OF ADDITIONAL PROTECTION OF UNION
STATUS ON THE RAILROADS."  ID., P. 32.  THE UNIONS ACCEDED TO THE
BOARD'S RECOMMENDATION. 

THE QUESTION OF UNION SECURITY WAS REOPENED IN 1950.  (FN10)
CONGRESS THEN EVALUATED THE PROPOSAL FOR AUTHORIZING THE UNION SHOP
PRIMARILY IN TERMS OF ITS RELATIONSHIP TO THE FINANCING OF THE UNIONS'
PARTICIPATION IN THE MACHINERY CREATED BY THE RAILWAY LABOR ACT TO
ACHIEVE ITS GOALS.  THE FRAMEWORK FOR FOSTERING VOLUNTARY ADJUSTMENTS
BETWEEN THE CARRIERS AND THEIR EMPLOYEES IN THE INTEREST OF THE
EFFICIENT DISCHARGE BY THE CARRIERS OF THEIR IMPORTANT FUNCTIONS WITH
MINIMUM DISRUPTION FROM LABOR STRIFE HAS NO STATUTORY PARALLEL IN OTHER
INDUSTRY.  THAT MACHINERY, THE PRODUCT OF A LONG LEGISLATIVE EVOLUTION,
IS MORE COMPLEX THAN THAT OF ANY OTHER INDUSTRY.  THE LABOR RELATIONS
OF INTERSTATE CARRIERS HAVE BEEN A SUBJECT OF CONGRESSIONAL ENACTMENTS
SINCE 1888.  (FN11)  FOR A TIME, AFTER WORLD WAR I, CONGRESS
EXPERIMENTED WITH A FORM OF COMPULSORY ARBITRATION.  (FN12)  THE
EXPERIMENT WAS UNSUCCESSFUL.  CONGRESS HAS SINCE THAT TIME CONSISTENTLY
ADHERED TO A REGULATORY POLICY WHICH PLACES THE RESPONSIBILITY SQUARELY
UPON THE CARRIERS AND THE UNIONS MUTUALLY TO WORK OUT SETTLEMENTS OF
ALL ASPECTS OF THE LABOR RELATIONSHIP.  THAT POLICY WAS EMBODIED IN THE
RAILWAY LABOR ACT OF 1926, 44 STAT. 577, WHICH REMAINS THE BASIC
REGULATORY ENACTMENT.  AS THE SENATE REPORT ON THE BILL WHICH BECAME
THAT LAW STATED:  "THE QUESTION WAS  ...  PRESENTED WHETHER THE
SUBSTITUTE FOR THE ACT OF 1920 SHOULD CONSIST OF A COMPULSORY SYSTEM
WITH ADEQUATE MEANS PROVIDED FOR ITS ENFORCEMENT, OR WHETHER IT WAS IN
THE PUBLIC INTEREST TO CREATE THE MACHINERY FOR AMICABLE ADJUSTMENT OF
LABOR DISPUTES AGREED UPON BY THE PARTIES AND TO THE SUCCESS OF WHICH
BOTH PARTIES WERE COMMITTED  ...  .  THE COMMITTEE IS OF OPINION THAT
IT IS IN THE PUBLIC INTEREST TO PERMIT A FAIR TRIAL OF THE METHOD OF
AMICABLE ADJUSTMENT AGREED UPON BY THE PARTIES, RATHER THAN TO ATTEMPT
UNDER EXISTING CONDITIONS TO USE THE ENTIRE POWER OF THE GOVERNMENT TO
DEAL WITH THESE LABOR DISPUTES."  S. REP. NO. 606, 69TH CONG., 1ST
SESS., P. 4.  THE REFERENCE TO THE PLAN "AGREED UPON BY THE PARTIES"
WAS TO "THE FACT THAT THE RAILWAY LABOR ACT OF 1926 CAME ON THE STATUTE
BOOKS THROUGH AGREEMENT BETWEEN THE RAILROADS AND THE RAILROAD UNIONS
ON THE NEED FOR SUCH LEGISLATION.  IT IS ACCURATE TO SAY THAT THE
RAILROADS AND THE RAILROAD UNIONS BETWEEN THEM WROTE THE RAILWAY LABOR
ACT OF 1926 AND CONGRESS FORMALLY ENACTED THEIR AGREEMENT."  RAILWAY
EMPLOYES' DEPT. V. HANSON, SUPRA, P. 240 (CONCURRING OPINION).  SEE
GENERALLY MURPHY, AGREEMENT ON THE RAILROADS - THE JOINT RAILWAY
CONFERENCE OF 1926, 11 LAB.  L.J. 823. 

"ALL THROUGH THE 1926 ACT IS THE THEORY THAT THE AGREEMENT IS THE
VITAL THING IN LIFE."  STATEMENT OF DONALD R. RICHBERG, HEARINGS ON
H.R. 7180, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 69TH
CONG., 1ST SESS., PP. 15-16.  THE ACT CREATED AFFIRMATIVE LEGAL DUTIES
ON THE PART OF THE CARRIERS AND THEIR EMPLOYEES "TO EXERT EVERY
REASONABLE EFFORT TO MAKE AND MAINTAIN AGREEMENTS CONCERNING RATES OF
PAY, RULES, AND WORKING CONDITIONS, AND TO SETTLE ALL DISPUTES, WHETHER
ARISING OUT OF THE APPLICATION OF SUCH AGREEMENTS OR OTHERWISE  ...
."  SEC. 2, FIRST.  SEE TEXAS & N.O.R. CO. V. BROTHERHOOD OF RAILWAY &
STEAMSHIP CLERKS, 281 U.S. 548.  THE ACT ALSO ESTABLISHED A
COMPREHENSIVE ADMINISTRATIVE APPARATUS FOR THE ADJUSTMENT OF DISPUTES,
IN CONFERENCES BETWEEN THE PARTIES, SEC. 2, SECOND, THIRD AND FOURTH
(NOW SIXTH), AND IF NOT SO SETTLED, IN SUBMISSIONS TO BOARDS OF
ADJUSTMENT, SEC. 3, OR THE NATIONAL MEDIATION BOARD, SEC. 4.  AND THE
LEGISLATION EXPANDED THE ALREADY EXISTING VOLUNTARY ARBITRATION
MACHINERY, SECS. 7, 8, 9. 

A PRIMARY PURPOSE OF THE MAJOR REVISIONS MADE IN 1934 WAS TO
STRENGTHEN THE POSITION OF THE LABOR ORGANIZATIONS VIS-A-VIS THE
CARRIERS, TO THE END OF FURTHERING THE SUCCESS OF THE BASIC
CONGRESSIONAL POLICY OF SELF-ADJUSTMENT OF THE INDUSTRY'S LABOR
PROBLEMS BETWEEN CARRIER ORGANIZATIONS AND EFFECTIVE LABOR
ORGANIZATIONS.  THE UNIONS CLAIMED THAT THE CARRIERS INTERFERED WITH
THE EMPLOYEES' FREEDOM OF CHOICE OF REPRESENTATIVES BY CREATING COMPANY
UNIONS, AND OTHERWISE ATTEMPTING TO UNDERMINE THE EMPLOYEES'
PARTICIPATION IN THE PROCESS OF COLLECTIVE BARGAINING.  CONGRESS
AMENDED SEC. 2, THIRD TO REINFORCE THE PROHIBITIONS AGAINST
INTERFERENCE WITH THE CHOICE OF REPRESENTATIVES, AND TO PERMIT THE
EMPLOYEES TO SELECT NONEMPLOYEE REPRESENTATIVES.  A NEW SEC. 2, FOURTH
WAS ADDED GUARANTEEING EMPLOYEES THE RIGHT TO ORGANIZE AND BARGAIN
COLLECTIVELY, AND CONGRESS MADE IT THE ENFORCEABLE DUTY OF THE CARRIERS
"TO TREAT WITH" THE REPRESENTATIVES OF THE EMPLOYEES, SEC. 2, NINTH. 
SEE VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515.  IT WAS MADE
EXPLICIT THAT THE REPRESENTATIVE SELECTED BY A MAJORITY OF ANY CLASS OR
CRAFT OF EMPLOYEES SHOULD BE THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
ALL THE EMPLOYEES OF THAT CRAFT OR CLASS.  "THE MINORITY MEMBERS OF A
CRAFT ARE THUS DEPRIVED BY THE STATUTE OF THE RIGHT, WHICH THEY WOULD
OTHERWISE POSSESS, TO CHOOSE A REPRESENTATIVE OF THEIR OWN, AND ITS
MEMBERS CANNOT BARGAIN INDIVIDUALLY ON BEHALF OF THEMSELVES AS TO
MATTERS WHICH ARE PROPERLY THE SUBJECT OF COLLECTIVE BARGAINING." 
STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192, 200.  "CONGRESS HAS SEEN
FIT TO CLOTHE THE BARGAINING REPRESENTATIVE WITH POWERS COMPARABLE TO
THOSE POSSESSED BY A LEGISLATIVE BODY BOTH TO CREATE AND RESTRICT THE
RIGHTS OF THOSE WHOM IT REPRESENTS  ...  ."  ID., P. 202.  IN ADDITION
TO THUS STRENGTHENING THE UNIONS' STATUS IN RELATION TO BOTH THE
CARRIERS AND THE EMPLOYEES, THE 1934 ACT CREATED THE NATIONAL RAILROAD
ADJUSTMENT BOARD AND PROVIDED THAT THE 18 EMPLOYEE REPRESENTATIVES WERE
TO BE CHOSEN BY THE LABOR ORGANIZATIONS NATIONAL IN SCOPE.  SEC. 3. 
THIS BOARD WAS GIVEN JURISDICTION TO SETTLE WHAT ARE TERMED MINOR
DISPUTES IN THE RAILROAD INDUSTRY, PRIMARILY GRIEVANCES ARISING FROM
THE APPLICATION OF COLLECTIVE BARGAINING AGREEMENTS TO PARTICULAR
SITUATIONS.  SEE UNION PACIFIC R. CO. V. PRICE, 360 U.S. 601. 

IN SUM, IN PRESCRIBING COLLECTIVE BARGAINING AS THE METHOD OF
SETTLING RAILWAY DISPUTES, IN CONFERRING UPON THE UNIONS THE STATUS OF
EXCLUSIVE REPRESENTATIVES IN THE NEGOTIATION AND ADMINISTRATION OF
COLLECTIVE AGREEMENTS, AND IN GIVING THEM REPRESENTATION ON THE
STATUTORY BOARD TO ADJUDICATE GRIEVANCES, CONGRESS HAS GIVEN THE UNIONS
A CLEARLY DEFINED AND DELINEATED ROLE TO PLAY IN EFFECTUATING THE BASIC
CONGRESSIONAL POLICY OF STABILIZING LABOR RELATIONS IN THE INDUSTRY. 
"IT IS FAIR TO SAY THAT EVERY STAGE IN THE EVOLUTION OF THIS RAILROAD
LABOR CODE WAS PROGRESSIVELY INFUSED WITH THE PURPOSE OF SECURING SELF
ADJUSTMENT BETWEEN THE EFFECTIVELY ORGANIZED RAILROADS AND THE EQUALLY
EFFECTIVE RAILROAD UNIONS AND, TO THAT END, OF ESTABLISHING FACILITIES
FOR SUCH SELF-ADJUSTMENT BY THE RAILROAD COMMUNITY OF ITS OWN
INDUSTRIAL CONTROVERSIES  ...  .  THE ASSUMPTION AS WELL AS THE AIM OF
THAT ACT OF 1934 IS A PROCESS OF PERMANENT CONFERENCE AND NEGOTIATION
BETWEEN THE CARRIERS ON THE ONE HAND AND THE EMPLOYEES THROUGH THEIR
UNIONS ON THE OTHER."  ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S. 711, 752
753 (DISSENTING OPINION). 

PERFORMANCE OF THESE FUNCTIONS ENTAILS THE EXPENDITURE OF
CONSIDERABLE FUNDS.  MOREOVER, THIS COURT HAS HELD THAT UNDER THE
STATUTORY SCHEME, A UNION'S STATUS AS EXCLUSIVE BARGAINING
REPRESENTATIVE CARRIES WITH IT THE DUTY FAIRLY AND EQUITABLY TO
REPRESENT ALL EMPLOYEES OF THE CRAFT OR CLASS, UNION AND NONUNION. 
STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192; TUNSTALL V. BROTHERHOOD
OF LOCOMOTIVE FIREMEN & ENGINEMEN, 323 U.S. 210.  THE PRINCIPAL
ARGUMENT MADE BY THE UNIONS IN 1950 WAS BASED ON THEIR ROLE IN THIS
REGULATORY FRAMEWORK.  THEY MAINTAINED THAT BECAUSE OF THE EXPENSE OF
PERFORMING THEIR DUTIES IN THE CONGRESSIONAL SCHEME, FAIRNESS JUSTIFIED
THE SPREADING OF THE COSTS TO ALL EMPLOYEES WHO BENEFITED.  THEY THUS
ADVANCED AS THEIR PURPOSE THE ELIMINATION OF THE "FREE RIDERS" - THOSE
EMPLOYEES WHO OBTAINED THE BENEFITS OF THE UNIONS' PARTICIPATION IN THE
MACHINERY OF THE ACT WITHOUT FINANCIALLY SUPPORTING THE UNIONS. 

GEORGE M. HARRISON, SPOKESMAN FOR THE RAILWAY LABOR EXECUTIVES'
ASSOCIATION, STATED THE UNIONS' CASE IN THIS FASHION: 

"ACTIVITIES OF LABOR ORGANIZATIONS RESULTING IN THE PROCUREMENT OF
EMPLOYEE BENEFITS ARE COSTLY, AND THE ONLY SOURCE OF FUNDS WITH WHICH
TO CARRY ON THESE ACTIVITIES IS THE DUES RECEIVED FROM MEMBERS OF THE
ORGANIZATION.  WE BELIEVE THAT IT IS ESSENTIALLY UNFAIR FOR NONMEMBERS
TO PARTICIPATE IN THE BENEFITS OF THOSE ACTIVITIES WITHOUT CONTRIBUTING
ANYTHING TO THE COST.  THIS IS ESPECIALLY TRUE WHEN THE COLLECTIVE
BARGAINING REPRESENTATIVE IS ONE FROM WHOSE EXISTENCE AND ACTIVITIES HE
DERIVES MOST IMPORTANT BENEFITS AND ONE WHICH IS OBLIGATED BY LAW TO
EXTEND THESE ADVANTAGES TO HIM. 

"FURTHERMORE, COLLECTIVE BARGAINING TO THE RAILROAD INDUSTRY IS MORE
COSTLY FROM A MONETARY STANDPOINT THAN THAT CARRIED ON IN ANY OTHER
INDUSTRY.  THE ADMINISTRATIVE MACHINERY IS MORE COMPLETE AND MORE
COMPLEX.  THE MEDIATION, ARBITRATION, AND PRESIDENTIAL EMERGENCY BOARD
PROVISIONS OF THE ACT, WHILE GREATLY IN THE PUBLIC INTEREST, ARE VERY
COSTLY TO THE UNIONS.  THE HANDLING OF AGREEMENT DISPUTES THROUGH THE
NATIONAL RAILROAD ADJUSTMENT BOARD ALSO REQUIRES EXPENSE WHICH IS NOT
KNOWN TO UNIONS IN OUTSIDE INDUSTRY."  HEARINGS ON H.R. 7789, HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 81ST CONG., 2D SESS., P.
10. 

THIS ARGUMENT WAS DECISIVE WITH CONGRESS.  THE HOUSE COMMITTEE REPORT
TRACED THE HISTORY OF PREVIOUS LEGISLATION IN THE INDUSTRY AND POINTED
OUT THE DUTY OF THE UNION ACTING AS EXCLUSIVE BARGAINING REPRESENTATIVE
TO REPRESENT EQUALLY ALL MEMBERS OF THE CLASS.  "UNDER THE ACT, THE
COLLECTIVE-BARGAINING REPRESENTATIVE IS REQUIRED TO REPRESENT THE
ENTIRE MEMBERSHIP OF THE CRAFT OR CLASS, INCLUDING NONUNION MEMBERS,
FAIRLY, EQUITABLY, AND IN GOOD FAITH.  BENEFITS RESULTING FROM
COLLECTIVE BARGAINING MAY NOT BE WITHHELD FROM EMPLOYEES BECAUSE THEY
ARE NOT MEMBERS OF THE UNION."   H.R. REP. NO. 2811, 81ST CONG., 2D
SESS., P. 4.  OBSERVING THAT ABOUT 75% OR 80% OF ALL RAILROAD EMPLOYEES
WERE BELIEVED TO BELONG TO A UNION, THE REPORT CONTINUED:  "NONUNION
MEMBERS, NEVERTHELESS, SHARE IN THE BENEFITS DERIVED FROM COLLECTIVE
AGREEMENTS NEGOTIATED BY THE RAILWAY LABOR UNIONS BUT BEAR NO SHARE OF
THE COST OF OBTAINING SUCH BENEFITS."  IBID.  (FN13)  THESE
CONSIDERATIONS OVERBORE THE ARGUMENTS IN FAVOR OF THE EARLIER POLICY OF
COMPLETE INDIVIDUAL FREEDOM OF CHOICE.  AS WE SAID IN RAILWAY EMPLOYES'
DEPT. V. HANSON, SUPRA, P. 235, "TO REQUIRE, RATHER THAN TO INDUCE, THE
BENEFICIARIES OF TRADE UNIONISM TO CONTRIBUTE TO ITS COSTS MAY NOT BE
THE WISEST COURSE.  BUT CONGRESS MIGHT WELL BELIEVE THAT IT WOULD HELP
INSURE THE RIGHT TO WORK IN AND ALONG THE ARTERIES OF INTERSTATE
COMMERCE.  NO MORE HAS BEEN ATTEMPTED HERE  ...  .  THE FINANCIAL
SUPPORT REQUIRED RELATES  ...  TO THE WORK OF THE UNION IN THE REALM OF
COLLECTIVE BARGAINING."  (FN14)  THE CONCLUSION TO WHICH THIS HISTORY
CLEARLY POINTS IS THAT SEC. 2, ELEVENTH CONTEMPLATED COMPULSORY
UNIONISM TO FORCE EMPLOYEES TO SHARE THE COSTS OF NEGOTIATING AND
ADMINISTERING COLLECTIVE AGREEMENTS, AND THE COSTS OF THE ADJUSTMENT
AND SETTLEMENT OF DISPUTES.  (FN15)  ONE LOOKS IN VAIN FOR ANY
SUGGESTION THAT CONGRESS ALSO MEANT IN SEC. 2, ELEVENTH TO PROVIDE THE
UNIONS WITH A MEANS FOR FORCING EMPLOYEES, OVER THEIR OBJECTION, TO
SUPPORT POLITICAL CAUSES WHICH THEY OPPOSE. 

                         III. 

                     THE SAFEGUARDING OF RIGHTS OF DISSENT. 

TO THE CONTRARY, CONGRESS INCORPORATED SAFEGUARDS IN THE STATUTE TO
PROTECT DISSENTERS' INTERESTS.   CONGRESS BECAME CONCERNED DURING THE
HEARINGS AND DEBATES THAT THE UNION SHOP MIGHT BE USED TO ABRIDGE
FREEDOM OF SPEECH AND BELIEFS.  THE ORIGINAL PROPOSAL FOR AUTHORIZATION
OF THE UNION SHOP WAS QUALIFIED IN ONLY ONE RESPECT.  IT PROVIDED "THAT
NO SUCH AGREEMENT SHALL REQUIRE SUCH CONDITION OF EMPLOYMENT WITH
RESPECT TO EMPLOYEES TO WHOM MEMBERSHIP IS NOT AVAILABLE UPON THE SAME
TERMS AND CONDITIONS AS ARE GENERALLY APPLICABLE TO ANY OTHER MEMBER
...  ."  THIS WAS PRIMARILY DESIGNED TO PREVENT DISCHARGE OF EMPLOYEES
FOR NONMEMBERSHIP WHERE THE UNION DID NOT ADMIT THE EMPLOYEE TO
MEMBERSHIP ON RACIAL GROUNDS.  SEE HOUSE HEARINGS, P. 68; SENATE
HEARINGS, PP. 22-25.  BUT IT WAS STRENUOUSLY PROTESTED THAT THE
PROPOSAL PROVIDED NO PROTECTION FOR AN EMPLOYEE WHO DISAGREED WITH
UNION POLICIES OR LEADERSHIP.  IT WAS ARGUED, FOR EXAMPLE, THAT "THE
RIGHT OF FREE SPEECH IS AT STAKE  ...  .  A MAN COULD FEEL THAT HE WAS
NO LONGER ABLE FREELY TO EXPRESS HIMSELF BECAUSE HE COULD BE DISMISSED
ON ACCOUNT OF CRITICISM OF THE UNION  ...  ."  HOUSE HEARINGS, P. 115;
SEE ALSO SENATE HEARINGS, PP. 167-169, 320.  OBJECTIONS OF THIS KIND
LED THE RAIL UNIONS TO PROPOSE AN ADDITION TO THE PROVISO TO SEC. 2,
ELEVENTH TO PREVENT LOSS OF JOB FOR LACK OF UNION MEMBERSHIP "WITH
RESPECT TO EMPLOYEES TO WHOM MEMBERSHIP WAS DENIED OR TERMINATED FOR
ANY REASON OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE
PERIODIC DUES, FEES, AND ASSESSMENTS UNIFORMLY REQUIRED AS A CONDITION
OF ACQUIRING OR RETAINING MEMBERSHIP."  HOUSE HEARINGS, P. 247.  MR.
HARRISON PRESENTED THIS TEXT AND STATED, "IT IS SUBMITTED THAT THIS
BILL WITH THE AMENDMENT AS SUGGESTED IN THIS STATEMENT REMEDIES THE
ALLEGED ABUSES OF COMPULSORY UNION MEMBERSHIP AS CLAIMED BY THE
OPPOSING WITNESSES, YET MAKES POSSIBLE THE ELIMINATION OF THE 'FREE
RIDER' AND THE SHARING OF THE BURDEN OF MAINTENANCE BY ALL OF THE
BENEFICIARIES OF UNION ACTIVITY."  HOUSE HEARINGS, P. 253.  MR.
HARRISON ALSO SOUGHT TO REASSURE COMMITTEE MEMBERS AS TO THE POSSIBLE
IMPLICATIONS OF OTHER LANGUAGE OF THE PROPOSED BILL; HE EXPLAINED THAT
"FEES" MEANT "INITIATION FEES," AND "ASSESSMENTS" WAS INTENDED
PRIMARILY TO COVER THE SITUATION OF A UNION WHICH HAD ONLY NOMINAL
DUES, SO THAT ITS MEMBERS PAID "AN ASSESSMENT TO FINANCE THE ACTIVITIES
OF THE GENERAL NEGOTIATING COMMITTEE  ...  IT WILL VARY MONTH BY MONTH,
BASED ON THE EXPENSES AND WORK OF THAT COMMITTEE."  P. 257.  OR, HE
EXPLAINED, AN ASSESSMENT MIGHT COVER CONVENTION EXPENSES.  "SO WE HAD
TO USE THE WORD 'ASSESSMENT' IN ADDITION TO DUES AND FEES BECAUSE SOME
OF THE UNIONS COLLECT A NOMINAL AMOUNT OF DUES AND AN ASSESSMENT MONTH
AFTER MONTH TO FINANCE PART OF THE ACTIVITIES, ALTHOUGH IN TOTAL IT
PERHAPS IS NO DIFFERENT THAN THE DUES PAID IN THE FIRST INSTANCE WHICH
COMPREHENDED ALL OF THOSE EXPENSES."  P. 258.  IN REPORTING THE BILL,
THE SENATE COMMITTEE EXPRESSLY NOTED THE PROTECTIVE PROVISO, S. REP.
NO. 2262, 81ST CONG., 2D SESS., PP. 3-4, AND AFFIXED THE SENATE
ADDITIONAL LIMITATIONS.  THE WORDS "NOT INCLUDING FINES AND PENALTIES"
WERE ADDED, TO MAKE IT CLEAR THAT TERMINATION OF UNION MEMBERSHIP FOR
THEIR NONPAYMENT WOULD NOT BE GROUNDS FOR DISCHARGE.  IT WAS ALSO MADE
EXPLICIT THAT "FEES" MEANT "INITIATION FEES."  SEE 96 CONG. REC. 16267
16268. 

A CONGRESSIONAL CONCERN OVER POSSIBLE IMPINGEMENTS ON THE INTERESTS
OF INDIVIDUAL DISSENTERS FROM UNION POLICIES IS THEREFORE DISCERNIBLE. 
IT IS TRUE THAT OPPONENTS OF THE UNION SHOP URGED THAT CONGRESS SHOULD
NOT ALLOW IT WITHOUT EXPLICITLY REGULATING THE AMOUNT OF DUES WHICH
MIGHT BE EXACTED OR PRESCRIBING THE USES FOR WHICH THE DUES MIGHT BE
EXPENDED.  (FN16)  WE MAY ASSUME THAT CONGRESS WAS ALSO FULLY
CONVERSANT WITH THE LONG HISTORY OF INTENSIVE INVOLVEMENT OF THE
RAILROAD UNIONS IN POLITICAL ACTIVITIES.  BUT IT DOES NOT FOLLOW THAT
SEC. 2, ELEVENTH PLACES NO RESTRICTION ON THE USE OF AN EMPLOYEE'S
MONEY, OVER HIS OBJECTION, TO SUPPORT POLITICAL CAUSES HE OPPOSES
MERELY BECAUSE CONGRESS DID NOT ENACT A COMPREHENSIVE REGULATORY SCHEME
GOVERNING EXPENDITURES.  FOR IT IS ABUNDANTLY CLEAR THAT CONGRESS DID
NOT COMPLETELY ABANDON THE POLICY OF FULL FREEDOM OF CHOICE EMBODIED IN
THE 1934 ACT, BUT RATHER MADE INROADS ON IT FOR THE LIMITED PURPOSE OF
ELIMINATING THE PROBLEMS CREATED BY THE "FREE RIDER."  THAT POLICY
SURVIVES IN SEC. 2, ELEVENTH IN THE SAFEGUARDS INTENDED TO PROTECT
FREEDOM OF DISSENT.  CONGRESS WAS AWARE OF THE CONFLICTING INTERESTS
INVOLVED IN THE QUESTION OF THE UNION SHOP AND SOUGHT TO ACHIEVE THEIR
ACCOMMODATION.  AS WAS SAID BY THE PRESIDENTIAL EMERGENCY BOARD WHICH
RECOMMENDED THE MAKING OF THE UNION-SHOP AGREEMENT INVOLVED IN THIS
CASE: 

"IT IS NOT AS THOUGH CONGRESS HAD BELIEVED IT WAS MERELY REMOVING
SOME ABSTRACT LEGAL BARRIER AND NOT PASSING ON THE MERITS.  IT WAS MADE
FULLY AWARE THAT IT WAS DECIDING THESE CRITICAL ISSUES OF INDIVIDUAL
RIGHT VERSUS COLLECTIVE INTERESTS WHICH HAVE BEEN STRESSED IN THIS
PROCEEDING. 

"INDEED, CONGRESS GAVE VERY CONCRETE EVIDENCE THAT IT CAREFULLY
CONSIDERED THE CLAIMS OF THE INDIVIDUAL TO BE FREE OF ARBITRARY OR
UNREASONABLE RESTRICTIONS RESULTING FROM COMPULSORY UNIONISM.  IT DID
NOT GIVE A BLANKET APPROVAL TO UNION-SHOP AGREEMENTS.  INSTEAD IT
ENACTED A PRECISE AND CAREFULLY DRAWN LIMITATION ON THE KIND OF UNION
SHOP AGREEMENTS WHICH MIGHT BE MADE.  THE OBVIOUS PURPOSE OF THIS
CAREFUL PRESCRIPTION WAS TO STRIKE A BALANCE BETWEEN THE INTERESTS
PRESSED BY THE UNIONS AND THE CONSIDERATIONS WHICH THE CARRIERS HAVE
URGED.  BY PROVIDING THAT A WORKER SHOULD NOT BE DISCHARGED IF HE WAS
DENIED OR IF HE LOST HIS UNION MEMBERSHIP FOR ANY REASON OTHER THAN
NONPAYMENT OF DUES, INITIATION FEES OR ASSESSMENTS, CONGRESS DEFINITELY
INDICATED THAT IT HAD WEIGHED CAREFULLY AND GIVEN EFFECT TO THE POLICY
OF THE ARGUMENTS AGAINST THE UNION SHOP."  REPORT OF PRESIDENTIAL
EMERGENCY BOARD NO. 98, APPOINTED PURSUANT TO EXEC. ORDER NO. 10306,
NOV. 15, 1951, P. 6. 

WE RESPECT THIS CONGRESSIONAL PURPOSE WHEN WE CONSTRUE SEC. 2,
ELEVENTH AS NOT VESTING THE UNIONS WITH UNLIMITED POWER TO SPEND
EXACTED MONEY.  WE ARE NOT CALLED UPON TO DELINEATE THE PRECISE LIMITS
OF THAT POWER IN THIS CASE.  WE HAVE BEFORE US ONLY THE QUESTION
WHETHER THE POWER IS RESTRICTED TO THE EXTENT OF DENYING THE UNIONS THE
RIGHT, OVER THE EMPLOYEE'S OBJECTION, TO USE HIS MONEY TO SUPPORT
POLITICAL CAUSES WHICH HE OPPOSES.  ITS USE TO SUPPORT CANDIDATES FOR
PUBLIC OFFICE, AND ADVANCE POLITICAL PROGRAMS, IS NOT A USE WHICH HELPS
DEFRAY THE EXPENSES OF THE NEGOTIATION OR ADMINISTRATION OF COLLECTIVE
AGREEMENTS, OR THE EXPENSES ENTAILED IN THE ADJUSTMENT OF GRIEVANCES
AND DISPUTES.  IN OTHER WORDS, IT IS A USE WHICH FALLS CLEARLY OUTSIDE
THE REASONS ADVANCED BY THE UNIONS AND ACCEPTED BY CONGRESS WHY
AUTHORITY TO MAKE UNION-SHOP AGREEMENTS WAS JUSTIFIED.  ON THE OTHER
HAND, IT IS EQUALLY CLEAR THAT IT IS A USE TO SUPPORT ACTIVITIES WITHIN
THE AREA OF DISSENTERS' INTERESTS WHICH CONGRESS ENACTED THE PROVISO TO
PROTECT.  WE GIVE SEC. 2, ELEVENTH THE CONSTRUCTION WHICH ACHIEVES BOTH
CONGRESSIONAL PURPOSES WHEN WE HOLD, AS WE DO, THAT SEC. 2, ELEVENTH IS
TO BE CONSTRUED TO DENY THE UNIONS, OVER AN EMPLOYEE'S OBJECTION, THE
POWER TO USE HIS EXACTED FUNDS TO SUPPORT POLITICAL CAUSES WHICH HE
OPPOSES.  (FN17) 

WE EXPRESS NO VIEW AS TO OTHER UNION EXPENDITURES OBJECTED TO BY AN
EMPLOYEE AND NOT MADE TO MEET THE COSTS OF NEGOTIATION AND
ADMINISTRATION OF COLLECTIVE AGREEMENTS, OR THE ADJUSTMENT AND
SETTLEMENT OF GRIEVANCES AND DISPUTES.  WE DO NOT UNDERSTAND, IN VIEW
OF THE FINDINGS OF THE GEORGIA COURTS AND THE QUESTION DECIDED BY THE
GEORGIA SUPREME COURT, THAT THERE IS BEFORE US THE MATTER OF
EXPENDITURES FOR ACTIVITIES IN THE AREA BETWEEN THE COSTS WHICH LED
DIRECTLY TO THE COMPLAINT AS TO "FREE RIDERS," AND THE EXPENDITURES TO
SUPPORT UNION POLITICAL ACTIVITIES.  (FN18)  WE ARE SATISFIED, HOWEVER,
THAT SEC. 2, ELEVENTH IS TO BE INTERPRETED TO DENY THE UNIONS THE POWER
CLAIMED IN THIS CASE.  THE APPELLANT UNIONS, IN INSISTING THAT SEC. 2,
ELEVENTH CONTEMPLATES THEIR USE OF EXACTED FUNDS TO SUPPORT POLITICAL
CAUSES OBJECTED TO BY THE EMPLOYEE, WOULD HAVE US HOLD THAT CONGRESS
SANCTIONED AN EXPANSION OF HISTORICAL PRACTICES IN THE POLITICAL AREA
BY THE RAIL UNIONS.  THIS WE DECLINE TO DO.  BOTH BY TRADITION AND,
FROM 1934 TO 1951, BY FORCE OF LAW, THE RAIL UNIONS DID NOT RELY UPON
THE COMPULSION OF UNION SECURITY AGREEMENTS TO EXACT MONEY TO SUPPORT
THE POLITICAL ACTIVITIES IN WHICH THEY ENGAGE.  OUR CONSTRUCTION
THEREFORE INVOLVES NO CURTAILMENT OF THE TRADITIONAL POLITICAL
ACTIVITIES OF THE RAILROAD UNIONS.  IT MEANS ONLY THAT THOSE UNIONS
MUST NOT SUPPORT THOSE ACTIVITIES, AGAINST THE EXPRESSED WISHES OF A
DISSENTING EMPLOYEE, WITH HIS EXACTED MONEY.  (FN19)

                   IV.

                             THE APPROPRIATE REMEDY. 

UNDER OUR VIEW OF THE STATUTE, HOWEVER, THE DECISION OF THE COURT
BELOW WAS ERRONEOUS AND CANNOT STAND.  THE APPELLEES WHO HAVE
PARTICIPATED IN THIS ACTION HAVE IN THE COURSE OF IT MADE KNOWN TO
THEIR RESPECTIVE UNIONS THEIR OBJECTION TO THE USE OF THEIR MONEY FOR
THE SUPPORT OF POLITICAL CAUSES.  IN THAT CIRCUMSTANCE, THE RESPECTIVE
UNIONS WERE WITHOUT POWER TO USE PAYMENTS THEREAFTER TENDERED BY THEM
FOR SUCH POLITICAL CAUSES.  HOWEVER, THE UNION-SHOP AGREEMENT ITSELF IS
NOT UNLAWFUL.  RAILWAY EMPLOYES' DEPT. V. HANSON, SUPRA.  THE APPELLEES
THEREFORE REMAIN OBLIGED, AS A CONDITION OF CONTINUED EMPLOYMENT, TO
MAKE THE PAYMENTS TO THEIR RESPECTIVE UNIONS CALLED FOR BY THE
AGREEMENT.  THEIR RIGHT OF ACTION STEMS NOT FROM CONSTITUTIONAL
LIMITATIONS ON CONGRESS' POWER TO AUTHORIZE THE UNION SHOP, BUT FROM
SEC. 2, ELEVENTH ITSELF.  IN OTHER WORDS, APPELLEES' GRIEVANCE STEMS
FROM THE SPENDING OF THEIR FUNDS FOR PURPOSES NOT AUTHORIZED BY THE ACT
IN THE FACE OF THEIR OBJECTION, NOT FROM THE ENFORCEMENT OF THE UNION
SHOP AGREEMENT BY THE MERE COLLECTION OF FUNDS.  IF THEIR MONEY WERE
USED FOR PURPOSES CONTEMPLATED BY SEC. 2, ELEVENTH, THE APPELLEES WOULD
HAVE NO GRIEVANCE AT ALL.  WE THINK THAT AN INJUNCTION RESTRAINING
ENFORCEMENT OF THE UNION-SHOP AGREEMENT IS THEREFORE PLAINLY NOT A
REMEDY APPROPRIATE TO THE VIOLATION OF THE ACT'S RESTRICTION ON
EXPENDITURES.  RESTRAINING THE COLLECTION OF ALL FUNDS FROM THE
APPELLEES SWEEPS TOO BROADLY, SINCE THEIR OBJECTION IS ONLY TO THE USES
TO WHICH SOME OF THEIR MONEY IS PUT.  MOREOVER, RESTRAINING COLLECTION
OF THE FUNDS AS THE GEORGIA COURTS HAVE DONE MIGHT WELL INTERFERE WITH
THE APPELLANT UNIONS' PERFORMANCE OF THOSE FUNCTIONS AND DUTIES WHICH
THE RAILWAY LABOR ACT PLACES UPON THEM TO ATTAIN ITS GOAL OF STABILITY
IN THE INDUSTRY.  EVEN THOUGH THE LOWER COURT DECREE IS SUBJECT TO
MODIFICATION UPON PROOF BY THE APPELLANTS OF CESSATION OF IMPROPER
EXPENDITURES, IN THE INTERIM THE PROHIBITION IS ABSOLUTE AGAINST THE
COLLECTION OF ALL FUNDS FROM ANYONE WHO CAN SHOW THAT HE IS OPPOSED TO
THE EXPENDITURE OF ANY OF HIS MONEY FOR POLITICAL PURPOSES WHICH HE
DISAPPROVES.  THE COMPLETE SHUTOFF OF THIS SOURCE OF INCOME DEFEATS THE
CONGRESSIONAL PLAN TO HAVE ALL EMPLOYEES BENEFITED SHARE COSTS "IN THE
REALM OF COLLECTIVE BARGAINING," HANSON, 351 U.S., AT P. 235, AND
THREATENS THE BASIC CONGRESSIONAL POLICY OF THE RAILWAY LABOR ACT FOR
SELF-ADJUSTMENTS BETWEEN EFFECTIVE CARRIER ORGANIZATIONS AND EFFECTIVE
LABOR ORGANIZATIONS.  (FN20) 

SINCE THE CASE MUST THEREFORE BE REMANDED TO THE COURT BELOW FOR
CONSIDERATION OF A PROPER REMEDY, WE THINK THAT IT IS APPROPRIATE TO
SUGGEST THE LIMITS WITHIN WHICH REMEDIAL DISCRETION MAY BE EXERCISED
CONSISTENTLY WITH THE RAILWAY LABOR ACT AND OTHER RELEVANT PUBLIC
POLICIES.  AS INDICATED, AN INJUNCTION AGAINST ENFORCEMENT OF THE UNION
SHOP ITSELF THROUGH THE COLLECTION OF FUNDS IS UNWARRANTED.  WE ALSO
THINK THAT A BLANKET INJUNCTION AGAINST ALL EXPENDITURES OF FUNDS FOR
THE DISPUTED PURPOSES, EVEN ONE CONDITIONED ON CESSATION OF IMPROPER
EXPENDITURES, WOULD NOT BE A PROPER EXERCISE OF EQUITABLE DISCRETION. 
NOR WOULD IT BE PROPER TO ISSUE AN INTERIM OR TEMPORARY BLANKET
INJUNCTION OF THIS CHARACTER PENDING A FINAL ADJUDICATION.  THE NORRIS
LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C. SECS. 101-115, EXPRESSES A BASIC
POLICY AGAINST THE INJUNCTION OF ACTIVITIES OF LABOR UNIONS.  WE HAVE
HELD THAT THE ACT DOES NOT DEPRIVE THE FEDERAL COURTS OF JURISDICTION
TO ENJOIN COMPLIANCE WITH VARIOUS MANDATES OF THE RAILWAY LABOR ACT. 
VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515; GRAHAM V.
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 338 U.S. 232.  HOWEVER,
THE POLICY OF THE ACT SUGGESTS THAT THE COURTS SHOULD HESITATE TO FIX
UPON THE INJUNCTIVE REMEDY FOR BREACHES OF DUTY OWING UNDER THE LABOR
LAWS UNLESS THAT REMEDY ALONE CAN EFFECTIVELY GUARD THE PLAINTIFF'S
RIGHT.  IN GRAHAM THIS COURT FOUND AN INJUNCTION NECESSARY TO PREVENT
THE BREACH OF THE DUTY OF FAIR REPRESENTATION, IN ORDER THAT CONGRESS
MIGHT NOT SEEM TO HAVE HELD OUT TO THE PETITIONERS THERE "AN ILLUSORY
RIGHT FOR WHICH IT WAS DENYING THEM A REMEDY."  338 U.S., AT P. 240. 
NO SUCH NECESSITY FOR A BLANKET INJUNCTIVE REMEDY BECAUSE OF THE
ABSENCE OF REASONABLE ALTERNATIVES APPEARS HERE.  MOREOVER, THE FACT
THAT THESE EXPENDITURES ARE MADE FOR POLITICAL ACTIVITIES IS AN
ADDITIONAL REASON FOR RELUCTANCE TO IMPOSE SUCH AN INJUNCTIVE REMEDY. 
WHATEVER MAY BE THE POWERS OF CONGRESS OR THE STATES TO FORBID UNIONS
ALTOGETHER TO MAKE VARIOUS TYPES OF POLITICAL EXPENDITURES, AS TO WHICH
WE EXPRESS NO OPINION HERE, (FN21) MANY OF THE EXPENDITURES INVOLVED IN
THE PRESENT CASE ARE MADE FOR THE PURPOSE OF DISSEMINATING INFORMATION
AS TO CANDIDATES AND PROGRAMS AND PUBLICIZING THE POSITIONS OF THE
UNIONS ON THEM.  AS TO SUCH EXPENDITURES AN INJUNCTION WOULD WORK A
RESTRAINT ON THE EXPRESSION OF POLITICAL IDEAS WHICH MIGHT BE OFFENSIVE
TO THE FIRST AMENDMENT.  FOR THE MAJORITY ALSO HAS AN INTEREST IN
STATING ITS VIEWS WITHOUT BEING SILENCED BY THE DISSENTERS.  TO ATTAIN
THE APPROPRIATE RECONCILIATION BETWEEN MAJORITY AND DISSENTING
INTERESTS IN THE AREA OF POLITICAL EXPRESSION, WE THINK THE COURTS IN
ADMINISTERING THE ACT SHOULD SELECT REMEDIES WHICH PROTECT BOTH
INTERESTS TO THE MAXIMUM EXTENT POSSIBLE WITHOUT UNDUE IMPINGEMENT OF
ONE ON THE OTHER.    AMONG POSSIBLE REMEDIES WHICH WOULD APPEAR
APPROPRIATE TO THE INJURY COMPLAINED OF, TWO MAY BE ENFORCED WITH A
MINIMUM OF ADMINISTRATIVE DIFFICULTY (FN22) AND WITH LITTLE DANGER OF
ENCROACHMENT ON THE LEGITIMATE ACTIVITIES OR NECESSARY FUNCTIONS OF THE
UNIONS.  ANY REMEDIES, HOWEVER, WOULD PROPERLY BE GRANTED ONLY TO
EMPLOYEES WHO HAVE MADE KNOWN TO THE UNION OFFICIALS THAT THEY DO NOT
DESIRE THEIR FUNDS TO BE USED FOR POLITICAL CAUSES TO WHICH THEY
OBJECT.  THE SAFEGUARDS OF SEC. 2, ELEVENTH WERE ADDED FOR THE
PROTECTION OF DISSENTERS' INTEREST, BUT DISSENT IS NOT TO BE PRESUMED -
IT MUST AFFIRMATIVELY BE MADE KNOWN TO THE UNION BY THE DISSENTING
EMPLOYEE.  THE UNION RECEIVING MONEY EXACTED FROM AN EMPLOYEE UNDER A
UNION-SHOP AGREEMENT SHOULD NOT IN FAIRNESS BE SUBJECTED TO SANCTIONS
IN FAVOR OF AN EMPLOYEE WHO MAKES NO COMPLAINT OF THE USE OF HIS MONEY
FOR SUCH ACTIVITIES.  FROM THESE CONSIDERATIONS, IT FOLLOWS THAT THE
PRESENT ACTION IS NOT A TRUE CLASS ACTION, FOR THERE IS NO ATTEMPT TO
PROVE THE EXISTENCE OF A CLASS OF WORKERS WHO HAD SPECIFICALLY OBJECTED
TO THE EXACTION OF DUES FOR POLITICAL PURPOSES.  SEE HANSBERRY V. LEE,
311 U.S. 32, 44.  THUS WE THINK THAT ONLY THOSE WHO HAVE IDENTIFIED
THEMSELVES AS OPPOSED TO POLITICAL USES OF THEIR FUNDS ARE ENTITLED TO
RELIEF IN THIS ACTION. 

ONE REMEDY WOULD BE AN INJUNCTION AGAINST EXPENDITURE FOR POLITICAL
CAUSES OPPOSED BY EACH COMPLAINING EMPLOYEE OF A SUM, FROM THOSE MONEYS
TO BE SPENT BY THE UNION FOR POLITICAL PURPOSES, WHICH IS SO MUCH OF
THE MONEYS EXACTED FROM HIM AS IS THE PROPORTION OF THE UNION'S TOTAL
EXPENDITURES MADE FOR SUCH POLITICAL ACTIVITIES TO THE UNION'S TOTAL
BUDGET.  THE UNION SHOULD NOT BE IN A POSITION TO MAKE UP SUCH SUM FROM
MONEY PAID BY A NONDISSENTER, FOR THIS WOULD SHIFT A DISPROPORTIONATE
SHARE OF THE COSTS OF COLLECTIVE BARGAINING TO THE DISSENTER AND HAVE
THE SAME EFFECT OF APPLYING HIS MONEY TO SUPPORT SUCH POLITICAL
ACTIVITIES.  A SECOND REMEDY WOULD BE RESTITUTION TO EACH INDIVIDUAL
EMPLOYEE OF THAT PORTION OF HIS MONEY WHICH THE UNION EXPENDED, DESPITE
HIS NOTIFICATION, FOR THE POLITICAL CAUSES TO WHICH HE HAD ADVISED THE
UNION HE WAS OPPOSED.   THERE SHOULD BE NO NECESSITY, HOWEVER, FOR THE
EMPLOYEE TO TRACE HIS MONEY UP TO AND INCLUDING ITS EXPENDITURE; IF THE
MONEY GOES INTO GENERAL FUNDS AND NO SEPARATE ACCOUNTS OF RECEIPTS AND
EXPENDITURES OF THE FUNDS OF INDIVIDUAL EMPLOYEES ARE MAINTAINED, THE
PORTION OF HIS MONEY THE EMPLOYEE WOULD BE ENTITLED TO RECOVER WOULD BE
IN THE SAME PROPORTION THAT THE EXPENDITURES FOR POLITICAL PURPOSES
WHICH HE HAD ADVISED THE UNION HE DISAPPROVED BORE TO THE TOTAL UNION
BUDGET. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE COURT BELOW
FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  64 STAT. 1238, 45 U.S.C. SEC. 152, ELEVENTH.  THE SECTION
PROVIDES: 

"ELEVENTH.  NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, OR
OF ANY OTHER STATUTE OR LAW OF THE UNITED STATES, OR TERRITORY THEREOF,
OR OF ANY STATE, ANY CARRIER OR CARRIERS AS DEFINED IN THIS CHAPTER AND
A LABOR ORGANIZATION OR LABOR ORGANIZATIONS DULY DESIGNATED AND
AUTHORIZED TO REPRESENT EMPLOYEES IN ACCORDANCE WITH THE REQUIREMENTS
OF THIS CHAPTER SHALL BE PERMITTED: 

"(A)  TO MAKE AGREEMENTS, REQUIRING, AS A CONDITION OF CONTINUED
EMPLOYMENT, THAT WITHIN SIXTY DAYS FOLLOWING THE BEGINNING OF SUCH
EMPLOYMENT, OR THE EFFECTIVE DATE OF SUCH AGREEMENTS, WHICHEVER IS THE
LATER, ALL EMPLOYEES SHALL BECOME MEMBERS OF THE LABOR ORGANIZATION
REPRESENTING THEIR CRAFT OR CLASS:  PROVIDED, THAT NO SUCH AGREEMENT
SHALL REQUIRE SUCH CONDITION OF EMPLOYMENT WITH RESPECT TO EMPLOYEES TO
WHOM MEMBERSHIP IS NOT AVAILABLE UPON THE SAME TERMS AND CONDITIONS AS
ARE GENERALLY APPLICABLE TO ANY OTHER MEMBER OR WITH RESPECT TO
EMPLOYEES TO WHOM MEMBERSHIP WAS DENIED OR TERMINATED FOR ANY REASON
OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE PERIODIC DUES,
INITIATION FEES, AND ASSESSMENTS (NOT INCLUDING FINES AND PENALTIES)
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP. 

"(B)  TO MAKE AGREEMENTS PROVIDING FOR THE DEDUCTION BY SUCH CARRIER
OR CARRIERS FROM THE WAGES OF ITS OR THEIR EMPLOYEES IN A CRAFT OR
CLASS AND PAYMENT TO THE LABOR ORGANIZATION REPRESENTING THE CRAFT OR
CLASS OF SUCH EMPLOYEES, OF ANY PERIODIC DUES, INITIATION FEES, AND
ASSESSMENTS (NOT INCLUDING FINES AND PENALTIES) UNIFORMLY REQUIRED AS A
CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP:  PROVIDED, THAT NO SUCH
AGREEMENT SHALL BE EFFECTIVE WITH RESPECT TO ANY INDIVIDUAL EMPLOYEE
UNTIL HE SHALL HAVE FURNISHED THE EMPLOYER WITH A WRITTEN ASSIGNMENT TO
THE LABOR ORGANIZATION OF SUCH MEMBERSHIP DUES, INITIATION FEES, AND
ASSESSMENTS, WHICH SHALL BE REVOCABLE IN WRITING AFTER THE EXPIRATION
OF ONE YEAR OR UPON THE TERMINATION DATE OF THE APPLICABLE COLLECTIVE
AGREEMENT, WHICHEVER OCCURS SOONER. 

"(C)  THE REQUIREMENT OF MEMBERSHIP IN A LABOR ORGANIZATION IN AN
AGREEMENT MADE PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH SHALL BE
SATISFIED, AS TO BOTH A PRESENT OR FUTURE EMPLOYEE IN ENGINE, TRAIN,
YARD, OR HOSTLING SERVICE, THAT IS, AN EMPLOYEE ENGAGED IN ANY OF THE
SERVICES OR CAPACITIES COVERED IN THE FIRST DIVISION OF PARAGRAPH (H)
OF SECTION 153 OF THIS TITLE, DEFINING THE JURISDICTIONAL SCOPE OF THE
FIRST DIVISION OF THE NATIONAL RAILROAD ADJUSTMENT BOARD, IF SAID
EMPLOYEE SHALL HOLD OR ACQUIRE MEMBERSHIP IN ANY ONE OF THE LABOR
ORGANIZATIONS, NATIONAL IN SCOPE, ORGANIZED IN ACCORDANCE WITH THIS
CHAPTER AND ADMITTING TO MEMBERSHIP EMPLOYEES OF A CRAFT OR CLASS IN
ANY OF SAID SERVICES; AND NO AGREEMENT MADE PURSUANT TO SUBPARAGRAPH
(B) OF THIS PARAGRAPH SHALL PROVIDE FOR DEDUCTIONS FROM HIS WAGES FOR
PERIODIC DUES, INITIATION FEES, OR ASSESSMENTS PAYABLE TO ANY LABOR
ORGANIZATION OTHER THAN THAT IN WHICH HE HOLDS MEMBERSHIP:  PROVIDED,
HOWEVER, THAT AS TO AN EMPLOYEE IN ANY OF SAID SERVICES ON A PARTICULAR
CARRIER AT THE EFFECTIVE DATE OF ANY SUCH AGREEMENT ON A CARRIER, WHO
IS NOT A MEMBER OF ANY ONE OF THE LABOR ORGANIZATIONS, NATIONAL IN
SCOPE, ORGANIZED IN ACCORDANCE WITH THIS CHAPTER AND ADMITTING TO
MEMBERSHIP EMPLOYEES OF A CRAFT OR CLASS IN ANY OF SAID SERVICES, SUCH
EMPLOYEE, AS A CONDITION OF CONTINUING HIS EMPLOYMENT, MAY BE REQUIRED
TO BECOME A MEMBER OF THE ORGANIZATION REPRESENTING THE CRAFT IN WHICH
HE IS EMPLOYED ON THE EFFECTIVE DATE OF THE FIRST AGREEMENT APPLICABLE
TO HIM:  PROVIDED, FURTHER, THAT NOTHING HEREIN OR IN ANY SUCH
AGREEMENT OR AGREEMENTS SHALL PREVENT AN EMPLOYEE FROM CHANGING
MEMBERSHIP FROM ONE ORGANIZATION TO ANOTHER ORGANIZATION ADMITTING TO
MEMBERSHIP EMPLOYEES OF A CRAFT OR CLASS IN ANY OF SAID SERVICES. 

"(D)  ANY PROVISIONS IN PARAGRAPHS FOURTH AND FIFTH OF THIS SECTION
IN CONFLICT HEREWITH ARE TO THE EXTENT OF SUCH CONFLICT AMENDED." 

FN2  THE PERTINENT FINDINGS OF THE TRIAL COURT ARE: 

"(5)  THE FUNDS SO EXACTED FROM PLAINTIFFS AND THE CLASS THEY
REPRESENT BY THE LABOR UNION DEFENDANTS HAVE BEEN, AND ARE BEING, USED
IN SUBSTANTIAL AMOUNTS BY THE LATTER TO SUPPORT THE POLITICAL CAMPAIGNS
OF CANDIDATES FOR THE OFFICES OF PRESIDENT AND VICE PRESIDENT OF THE
UNITED STATES, AND FOR THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES, OPPOSED BY PLAINTIFFS AND THE CLASS THEY REPRESENT, AND
ALSO TO SUPPORT BY DIRECT AND INDIRECT FINANCIAL CONTRIBUTIONS AND
EXPENDITURES THE POLITICAL CAMPAIGNS OF CANDIDATES FOR STATE AND LOCAL
PUBLIC OFFICES, OPPOSED BY PLAINTIFFS AND THE CLASS THEY REPRESENT. 
THE SAID FUNDS ARE SO USED BOTH BY EACH OF THE LABOR UNION DEFENDANTS
SEPARATELY AND BY ALL OF THE LABOR UNION DEFENDANTS COLLECTIVELY AND IN
CONCERT AMONG THEMSELVES AND WITH OTHER ORGANIZATIONS NOT PARTIES TO
THIS ACTION THROUGH ASSOCIATIONS, LEAGUES, OR COMMITTEES FORMED FOR
THAT PURPOSE. 

"(6)  THOSE FUNDS HAVE BEEN AND ARE BEING USED IN SUBSTANTIAL AMOUNTS
TO PROPAGATE POLITICAL AND ECONOMIC DOCTRINES, CONCEPTS AND IDEOLOGIES
AND TO PROMOTE LEGISLATIVE PROGRAMS OPPOSED BY PLAINTIFFS AND THE CLASS
THEY REPRESENT.  THOSE FUNDS HAVE ALSO BEEN AND ARE BEING USED IN
SUBSTANTIAL AMOUNTS TO IMPOSE UPON PLAINTIFFS AND THE CLASS THEY
REPRESENT, AS WELL AS UPON THE GENERAL PUBLIC, CONFORMITY TO THOSE
DOCTRINES, CONCEPTS, IDEOLOGIES AND PROGRAMS. 

"(7)  THE EXACTION OF MONEYS FROM PLAINTIFFS AND THE CLASS THEY
REPRESENT FOR THE PURPOSES AND ACTIVITIES DESCRIBED ABOVE IS NOT
REASONABLY NECESSARY TO COLLECTIVE BARGAINING OR TO MAINTAINING THE
EXISTENCE AND POSITION OF SAID UNION DEFENDANTS AS EFFECTIVE BARGAINING
AGENTS OR TO INFORM THE EMPLOYEES WHOM SAID DEFENDANTS REPRESENT OF
DEVELOPMENTS OF MUTUAL INTEREST. 

"(8)  THE EXACTION OF SAID MONEY FROM PLAINTIFFS AND THE CLASS THEY
REPRESENT, IN THE FASHION SET FORTH ABOVE BY THE LABOR UNION
DEFENDANTS, IS PURSUANT TO THE UNION SHOP AGREEMENTS AND IN ACCORDANCE
WITH THE TERMS AND CONDITIONS OF THOSE AGREEMENTS." 

FN3  THE TRIAL JUDGE CONCLUDED: 

"SAID EXACTION AND USE OF MONEY, SAID UNION SHOP AGREEMENTS AND
VIOLATE THE UNITED STATES CONSTITUTION WHICH IN THE FIRST, FIFTH, NINTH
AND TENTH AMENDMENTS THERETO GUARANTEES TO INDIVIDUALS PROTECTION FROM
SUCH UNWARRANTED INVASION OF THEIR PERSONAL AND PROPERTY RIGHTS,
(INCLUDING FREEDOM OF ASSOCIATION, FREEDOM OF THOUGHT, FREEDOM OF
SPEECH, FREEDOM OF PRESS, FREEDOM TO WORK AND THEIR POLITICAL FREEDOM
AND RIGHTS) UNDER THE CLOAK OF FEDERAL AUTHORITY." 

THE JUDGMENT AND DECREE PROVIDED THAT THE APPELLANTS AND THE CARRIERS
"BE AND THEY HEREBY ARE PERPETUALLY ENJOINED FROM ENFORCING THE SAID
UNION SHOP AGREEMENTS  ...  AND FROM DISCHARGING PETITIONERS, OR ANY
MEMBER OF THE CLASS THEY REPRESENT, FOR REFUSING TO BECOME OR REMAIN
MEMBERS OF, OR PAY PERIODIC DUES, FEES, OR ASSESSMENTS TO, ANY OF THE
LABOR UNION DEFENDANTS, PROVIDED, HOWEVER, THAT SAID DEFENDANTS MAY AT
ANY TIME PETITION THE COURT TO DISSOLVE SAID INJUNCTION UPON A SHOWING
THAT THEY NO LONGER ARE ENGAGING IN THE IMPROPER AND UNLAWFUL
ACTIVITIES DESCRIBED ABOVE."  JUDGMENT WAS ALSO ENTERED IN FAVOR OF
THREE OF THE NAMED APPELLEES FOR THE AMOUNTS OF DUES, INITIATION FEES
AND ASSESSMENTS PAID BY THEM. 

FN4  THE SUPREME COURT OF GEORGIA VIEWED THE CONSTITUTIONAL QUESTION
PRESENTED FOR ITS DECISION AS FOLLOWS: 

"THE FUNDAMENTAL CONSTITUTIONAL QUESTION IS:  DOES THE CONTRACT
BETWEEN THE EMPLOYERS OF THE PLAINTIFFS AND THE UNION DEFENDANTS, WHICH
COMPELS THESE PLAINTIFFS, IF THEY CONTINUE TO WORK FOR THE EMPLOYERS,
TO JOIN THE UNIONS OF THEIR RESPECTIVE CRAFTS, AND PAY DUES, FEES, AND
ASSESSMENTS TO THE UNIONS, WHERE A PART OF THE SAME WILL BE USED TO
SUPPORT POLITICAL AND ECONOMIC PROGRAMS AND CANDIDATES FOR PUBLIC
OFFICE, WHICH THE PLAINTIFFS NOT ONLY DO NOT APPROVE BUT OPPOSE,
VIOLATE THEIR RIGHTS OF FREEDOM OF SPEECH AND DEPRIVE THEM OF THEIR
PROPERTY WITHOUT DUE PROCESS OF LAW UNDER THE FIRST AND FIFTH
AMENDMENTS TO THE FEDERAL CONSTITUTION?"  215 GA., AT 43-44, 108
S.E.2D, AT 807. 

FN5  THE RECORD CONTAINED ONE UNION CONSTITUTION WITH A STATEMENT OF
POLITICAL OBJECTIVES AND VARIOUS OTHER UNION CONSTITUTIONS AUTHORIZING
POLITICAL EDUCATION ACTIVITY, LOBBYING BEFORE LEGISLATIVE BODIES, AND
PUBLICATION OF UNION VIEWS.  THERE WAS AN INDICATION THAT LABOR WAS
FURNISHED TO MEMBERS OF SOME UNIONS.  THERE WAS ALSO MATERIAL TAKEN
FROM THE HEARINGS ON SEC. 2, ELEVENTH WHICH INCLUDED STATEMENTS OF
MANAGEMENT OPPONENTS OF THE ACT THAT UNION DUES WERE USED FOR POLITICAL
ACTIVITIES AND EMPLOYEES SHOULD NOT BE FORCED TO JOIN UNIONS IF THEY
DID NOT LIKE THE PURPOSES FOR WHICH THEIR FUNDS WOULD BE SPENT.  AND
THERE WERE STATEMENTS BY REP. HOFFMAN OF MICHIGAN DURING THE DEBATE ON
THE BILL, WARNING UNION LEADERS NOT TO LEVY "POLITICAL ASSESSMENTS" AND
USE THE ACT TO FORCE THEIR MEMBERS TO MEET THOSE ASSESSMENTS. 

FN6  "THESE RAILROAD LABOR ORGANIZATIONS IN THE PAST HAVE REFRAINED
FROM ADVOCATING THE UNION SHOP AGREEMENT, OR ANY OTHER TYPE OF UNION
SECURITY.  IT HAS ALWAYS BEEN OUR PHILOSOPHY THAT THE STRONGEST AND
MOST MILITANT TYPE OF LABOR ORGANIZATION WAS THE ONE WHOSE MEMBERS WERE
CAREFULLY SELECTED AND WHO JOINED CONVICTION AND A DESIRE TO ASSIST
THEIR FELLOWS IN PROMOTING OBJECTS OF LABOR UNIONISM  ...  ." 
STATEMENT OF CHARLES J. MACGOWAN, VICE PRESIDENT OF THE INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS, TRANSCRIPT OF PROCEEDINGS, PRESIDENTIAL
BOARD, APPOINTED FEB. 20, 1943, P. 5358.  SEE ALSO TRANSCRIPT OF
PROCEEDINGS, PRESIDENTIAL EMERGENCY BOARD NO. 98, APPOINTED PURSUANT TO
EXEC. ORDER NO. 10306, NOV. 15, 1951, PP. 835-845, CARRIERS' EXHIBIT W
28.  FOR AN ANALYSIS OF THE REASONS FOR THE LONG-TIME ABSENCE OF
PRESSURE FOR UNION SECURITY AGREEMENTS IN THE RAILWAY INDUSTRY, SEE
TONER, THE CLOSED SHOP, PP. 93-114. 

FN7  THE PRINCIPLE OF FREEDOM OF CHOICE HAD BEEN INCORPORATED IN TWO
EARLIER PIECES OF LEGISLATION GOVERNING RAILROADS.  THE BANKRUPTCY ACT
OF MARCH 3, 1933, 47 STAT. 1481, SEC. 77(P) AND (Q), PROVIDED THAT NO
JUDGE, TRUSTEE, OR RECEIVER OF A CARRIER SHOULD INTERFERE WITH EMPLOYEE
ORGANIZATION, INFLUENCE OR COERCE EMPLOYEES TO JOIN A COMPANY UNION, OR
REQUIRE EMPLOYEES TO JOIN OR REFRAIN FROM JOINING A LABOR
ORGANIZATION.  THE EMERGENCY RAILROAD TRANSPORTATION ACT OF JUNE 16,
1933, 48 STAT. 214, SEC. 7(E), REQUIRED ALL CARRIERS TO ABIDE BY THESE
PROVISIONS OF THE BANKRUPTCY ACT.  THE LATTER PROVISION WAS TEMPORARY,
WITH A MAXIMUM DURATION OF TWO YEARS.  SEE TESTIMONY OF JOSEPH B.
EASTMAN, FEDERAL COORDINATOR OF TRANSPORTATION, HOUSE HEARINGS ON H.R.
7650, 73D CONG., 2D SESS., PP. 22-23, AND HIS OFFICIAL INTERPRETATION
OF THIS LEGISLATION, 7 INTERSTATE COMMERCE ACTS ANN., 1934 SUPP., PP.
5972-5973. 

FN8  EASTMAN FURTHER EMPHASIZED THAT ONLY THE TRAINMEN WERE
IMMEDIATELY AFFECTED BY THE BROADER PROHIBITION HE SUPPORTED.  "I AM
CONFIDENT THAT THE ONLY REAL SUPPORT FOR THE PROPOSED AMENDMENTS IS
FROM A SINGLE ORGANIZATION.  NONE OF THE OTHER STANDARD ORGANIZATIONS
HAS ANYTHING TO GAIN FROM SUCH CHANGES IN THE BILL."  EASTMAN LETTER,
SUPRA, P. 16.  FOR OTHER EXPRESSIONS OF EASTMAN'S VIEWS, SEE HOUSE
HEARINGS, SUPRA, PP. 28-29; HEARINGS ON H.R. 9861, HOUSE RULES
COMMITTEE, 73D CONG., 2D SESS., PP. 22-24.  THAT OTHER RAIL UNIONS WERE
STILL COMMITTED AT THIS TIME TO THE PRINCIPLE OF VOLUNTARISM, DESPITE
THEIR SUPPORT OF THE TRAINMEN'S POSITION, IS INDICATED BY THE STATEMENT
OF GEORGE H. HARRISON, REPRESENTING THE RAILWAY LABOR EXECUTIVES'
ASSOCIATION:  "NOW, I HOPE THE COMMITTEE WILL NOT GET THE THOUGHT FROM
THESE STATEMENTS THAT THE RAILROAD LABOR UNIONS THAT I SPEAK FOR WANT
TO FORCE THESE MEN INTO OUR UNIONS, BECAUSE THAT IS NOT OUR PURPOSE;
...  ."  HOUSE HEARINGS ON H.R. 7650, SUPRA, P. 86. 

FN9  THE BOARD'S VIEW AS TO THE ILLEGALITY OF A UNION SHOP WAS
SUPPORTED BY AN OPINION OF THE ATTORNEY GENERAL, 40 OP. ATTY. GEN., NO.
59, P. 254 (DEC. 29, 1942). 

FN10  AT THE TIME OF THE CONGRESSIONAL DELIBERATIONS WHICH PRECEDED
THE ENACTMENT OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, THE
TRAINMEN, THROUGH THEIR PRESIDENT, A.F. WHITNEY, ADVOCATED THE CLOSED
SHOP, AND URGED THE REPEAL OF THE PROVISIONS WHICH PROHIBITED IT.
HEARINGS ON AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT, HOUSE
COMMITTEE ON EDUCATION AND LABOR, 80TH CONG., 1ST SESS., PP. 1549-1552,
1561.  HOWEVER, THE RAILWAY LABOR EXECUTIVES' ASSOCIATION OPPOSED
AMENDMENT OF THE 1934 ACT.  A.E. LYON, EXECUTIVE SECRETARY OF THE
ASSOCIATION, SAID:  "WE WANT TO MAKE IT VERY CLEAR THAT WE ARE
PROPOSING NO AMENDMENTS TO THE RAILWAY LABOR ACT.  WE BELIEVE THAT NONE
IS NECESSARY, AND WE ARE OPPOSED TO THOSE WHICH MR. WHITNEY
SUGGESTED."  HEARINGS, P. 3722.  LYON ADDED:  "WE ARE NOT ASKING YOU TO
AMEND THE RAILWAY LABOR ACT AND PROVIDE A CLOSED SHOP AS MR. WHITNEY
DID.  WE DO NOT THINK IT IS NECESSARY."  P. 3724.  IN RESPONSE TO THE
QUERY, "BY THE SERVICES YOU HAVE PERFORMED FOR YOUR MEMBERS YOU HAVE
ATTRACTED PEOPLE VOLUNTARILY TO JOIN.  IS THAT NOT CORRECT?"  LYON
REPLIED: "I THINK THAT IS TRUE.  AND MANY OF OUR UNION PEOPLE BELIEVE
THEY WOULD RATHER HAVE MEMBERS THAT BELONG BECAUSE THEY WANT TO, RATHER
THAN BECAUSE THEY HAVE TO."  P. 3732. 

FN11  THE ACT OF 1888, 25 STAT. 501, AUTHORIZED THE CREATION OF
BOARDS OF VOLUNTARY ARBITRATION TO SETTLE CONTROVERSIES BETWEEN
CARRIERS AND THEIR EMPLOYEES WHICH THREATENED TO DISRUPT
TRANSPORTATION.  SEC. 1.  THE ACT ALSO PROVIDED FOR A TEMPORARY
PRESIDENTIAL COMMISSION TO INVESTIGATE THE CAUSES OF A CONTROVERSY AND
THE BEST MEANS OF ADJUSTING IT; THE COMMISSION WAS TO REPORT THE
RESULTS OF ITS INVESTIGATION TO THE PRESIDENT AND CONGRESS.  SEC. 6. 

IN 1898 CONGRESS REPEALED THE ACT OF 1888 AND PASSED THE ERDMAN ACT,
30 STAT. 424, PROVIDING THAT "WHENEVER A CONTROVERSY CONCERNING WAGES,
HOURS OF LABOR, OR CONDITIONS OF EMPLOYMENT SHALL ARISE BETWEEN A
CARRIER SUBJECT TO THIS ACT AND THE EMPLOYEES OF SUCH CARRIER,
SERIOUSLY INTERRUPTING OR THREATENING TO INTERRUPT THE BUSINESS OF SAID
CARRIER," THE CHAIRMAN OF THE INTERSTATE COMMERCE COMMISSION AND THE
COMMISSIONER OF LABOR SHOULD ATTEMPT TO RESOLVE THE DISPUTE, AT THE
REQUEST OF EITHER PARTY, BY CONCILIATION AND MEDIATION.  SEC. 2.  IF
THESE METHODS FAILED, A BOARD OF VOLUNTARY ARBITRATION COULD BE SET UP
WITH REPRESENTATIVES ON IT OF THE CARRIER AND THE "LABOR ORGANIZATION
TO WHICH THE EMPLOYEES DIRECTLY INTERESTED BELONG  ...  ."  SEC. 3. 
AN EMPLOYEE TO PROMISE NOT TO BECOME OR REMAIN A MEMBER OF A LABOR
ORGANIZATION OR TO DISCRIMINATE AGAINST AN EMPLOYEE FOR SUCH
MEMBERSHIP, A PROVISION WHICH WAS HELD UNCONSTITUTIONAL IN ADAIR V.
UNITED STATES, 208 U.S. 161. 

THE ERDMAN ACT WAS SUPERSEDED IN 1913 BY THE PASSAGE OF THE NEWLANDS
ACT, 38 STAT. 103.  IT CREATED A BOARD OF MEDIATION AND CONCILIATION TO
WHICH EITHER PARTY TO A CONTROVERSY COULD REFER THE DISPUTE AND WHICH
COULD PROFFER ITS SERVICES EVEN WITHOUT REQUEST IF AN INTERRUPTION OF
TRAFFIC WAS IMMINENT AND SERIOUSLY JEOPARDIZED THE PUBLIC INTEREST. 
THE BOARD ALSO WAS AUTHORIZED TO GIVE OPINIONS AS TO THE MEANING OR
APPLICATION OF AGREEMENTS REACHED THROUGH MEDIATION.  SEC. 2.  THE
ARBITRATION PROCEDURES SET UP BY THE ERDMAN ACT WERE FURTHER
ELABORATED.  SECS. 3-8. 

IN 1916 CONGRESS IMPOSED THE 8-HOUR DAY ON THE RAILROADS, 39 STAT.
721.  DURING THE PERIOD OF FEDERAL OPERATION OF THE RAILROADS IN WORLD
WAR I AND AFTERWARDS THE FEDERAL GOVERNMENT EXECUTED AGREEMENTS WITH
MANY OF THE NATIONAL LABOR ORGANIZATIONS AS REPRESENTATIVES OF THE
RAILROAD EMPLOYEES.  BOARDS OF ADJUSTMENT WERE ALSO SET UP TO HANDLE
DISPUTES CONCERNING THE INTERPRETATION AND APPLICATION OF AGREEMENTS. 
SEE HEARINGS ON S. 3295, SUBCOMMITTEE OF SENATE COMMITTEE ON LABOR AND
PUBLIC WELFARE, 81ST CONG., 2D SESS., PP. 216, 305.  BY THE
TRANSPORTATION ACT OF 1920, 41 STAT. 456, CONGRESS TERMINATED FEDERAL
CONTROL AND ESTABLISHED AN EXTENSIVE NEW REGULATORY SCHEME.  SEE N. 12,
INFRA.  SEE GENERALLY HEARINGS ON S. 3463, SUBCOMMITTEE OF THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE, 81ST CONG., 2D SESS., PP. 124
131. 

FN12  THE TRANSPORTATION ACT OF 1920 PROVIDED FOR A RAILROAD LABOR
BOARD, WITH POWER TO RENDER A DECISION IN DISPUTES BETWEEN CARRIERS AND
THEIR EMPLOYEES OVER WAGES, GRIEVANCES, RULES, OR WORKING CONDITIONS
NOT RESOLVED THROUGH CONFERENCE AND ADJUSTMENT PROCEDURES.  SEC. 307. 
IN RENDERING A DECISION ON WAGES OR WORKING CONDITIONS, THE BOARD HAD A
DUTY TO ESTABLISH WAGES AND CONDITIONS WHICH IN ITS OPINION WERE "JUST
AND REASONABLE."  SEC. 307(D).  IT WAS HELD, HOWEVER, THAT THE
DECISIONS OF THE BOARD COULD NOT BE ENFORCED BY LEGAL PROCESS.  SEE
PENNSYLVANIA R. CO. V. UNITED STATES RAILROAD LABOR BOARD, 261 U.S. 72;
PENNSYLVANIA R. SYSTEM V. PENNSYLVANIA R. CO., 267 U.S. 203.  BY 1926
THE BOARD HAD LOST THE CONFIDENCE OF BOTH THE UNIONS AND MANY OF THE
RAILROADS.  COMMENTED THE SENATE COMMITTEE WHICH CONSIDERED THE RAILWAY
LABOR ACT OF 1926:  "IN VIEW OF THE FACT THAT THE EMPLOYEES ABSOLUTELY
REFUSE TO APPEAR BEFORE THE LABOR BOARD AND THAT MANY OF THE IMPORTANT
RAILROADS ARE THEMSELVES OPPOSED TO IT, THAT IT HAS BEEN HELD BY THE
SUPREME COURT TO HAVE NO POWER TO ENFORCE ITS JUDGMENTS, THAT ITS
AUTHORITY IS NOT RECOGNIZED OR RESPECTED BY THE EMPLOYEES AND BY A
NUMBER OF IMPORTANT RAILROADS, THAT THE PRESIDENT HAS SUGGESTED THAT IT
WOULD BE WISE TO SEEK A SUBSTITUTE FOR IT, AND THAT THE PARTY PLATFORMS
OF BOTH THE REPUBLICAN AND DEMOCRATIC PARTIES IN 1924 CLEARLY INDICATED
DISSATISFACTION WITH THE PROVISIONS OF THE TRANSPORTATION ACT RELATING
TO LABOR, THE COMMITTEE CONCLUDED THAT THE TIME HAD ARRIVED WHEN THE
LABOR BOARD SHOULD BE ABOLISHED AND THE PROVISIONS RELATING TO LABOR IN
THE TRANSPORTATION ACT, 1920, SHOULD BE REPEALED."  S. REP. NO. 606,
69TH CONG., 1ST SESS., PP. 3-4. 

FN13  FOR REITERATION BY VARIOUS UNION SPOKESMEN OF THIS PURPOSE OF
ELIMINATING THE PROBLEMS CREATED BY THE "FREE RIDER," SEE HEARINGS ON
S. 3295, SUPRA, PP. 6, 32-33, 36, 40, 66, 130, 236-237; HEARINGS ON
H.R. 7789, SUPRA, PP. 9, 19, 25-26, 29, 37-38, 49-50, 79, 81, 85, 87,
89, 228, 240-241, 250, 253, 255, 275.  FOR OTHER STATEMENTS BY MEMBERS
OF CONGRESS INDICATING THEIR ACCEPTANCE OF THIS JUSTIFICATION FOR THE
LEGISLATION, SEE SENATE HEARINGS, SUPRA, PP. 169-171; HOUSE HEARINGS,
SUPRA, PP. 25, 87, 106, 110, 139; 96 CONG. REC. 16279, 17050-17051,
17055, 17057, 17058. 

MR. HARRISON EXPRESSLY DISCLAIMED THAT THE UNION SHOP WAS SOUGHT IN
ORDER TO STRENGTHEN THE BARGAINING POWER OF THE UNIONS.  HE SAID: 

"I DO NOT THINK IT WOULD AFFECT THE POWER OF BARGAINING ONE WAY OR
THE OTHER  ...  .  IF I GET A MAJORITY OF THE EMPLOYEES TO VOTE FOR MY
UNION AS THE BARGAINING AGENT, I HAVE GOT AS MUCH ECONOMIC POWER AT
THAT STAGE OF DEVELOPMENT AS I WILL EVER HAVE.  THE MAN THAT IS GOING
TO SCAB - HE WILL SCAB WHETHER HE IS IN OR OUT OF THE UNION, AND IT
DOES NOT MAKE ANY DIFFERENCE."  HOUSE HEARINGS, SUPRA, PP. 20-21. 

NOR WAS ANY CLAIM SERIOUSLY ADVANCED THAT THE UNION SHOP WAS
NECESSARY TO HOLD OR INCREASE UNION MEMBERSHIP.  THE PROHIBITION
AGAINST UNION SECURITY IN THE 1934 ACT HAD NOT INTERFERED WITH THE
GROWTH OF UNION MEMBERSHIP OR CAUSED THE UNIONS TO LOSE THEIR POSITIONS
AS EXCLUSIVE BARGAINING AGENTS.  SEE A.F. OF L. V. AMERICAN SASH CO.,
335 U.S. 538, 548-549, N. 4 (CONCURRING OPINION); SEE ALSO TRANSCRIPT
OF PROCEEDINGS, PRESIDENTIAL EMERGENCY BOARD NO. 98, APPOINTED PURSUANT
TO EXEC. ORDER NO. 10306, NOV. 15, 1951, CARRIERS' EXHIBITS W-23, W-28,
PP. 38-51. 

FN14  THE UNIONS CONTINUED TO URGE THE ELIMINATION OF THE PROBLEMS
CREATED BY THE "FREE RIDER" AS THE JUSTIFICATION FOR THE UNION SHOP IN
THE PROCEEDINGS BEFORE THE PRESIDENTIAL EMERGENCY BOARD, WHICH
RECOMMENDED THAT THE CARRIERS MAKE THE AGREEMENTS INVOLVED IN THIS
CASE.  MR. HARRISON SAID: "  ...  THE RAILROAD UNIONS' PRIMARY PURPOSE
IN SEEKING AND OBTAINING THE AMENDMENT TO THE RAILWAY LABOR ACT IN 1951
TO PERMIT THE CHECK-OFF FOR PAYMENT OF DUES, WAS TO ELIMINATE THE 'FREE
RIDER,' THE GUY WHO DRAGS HIS FEET, A TERM WHICH IS APPLIED BY UNIONS
TO NON-MEMBERS WHO OBTAIN, WITHOUT COST TO THEMSELVES, THE BENEFITS OF
COLLECTIVE BARGAINING PROCURED THROUGH THE EFFORTS OF THE DUES-PAYING
MEMBERS."  TRANSCRIPT OF PROCEEDINGS, PRESIDENTIAL EMERGENCY BOARD NO.
98, APPOINTED PURSUANT TO EXEC. ORDER NO. 10306, NOV. 15, 1951, P.
150.  SEE ALSO TRANSCRIPT, PP. 40-44, 144-156, 182-183, 186-188, 202
203, 268, 283-286, 289, 545, 608-611, 1893, 1901, 2136, 2495-2497,
2795, 2839, 2930, 3014-3015, 3018-3019. 

FN15  SECTION 2, ELEVENTH (C), WHICH GIVES SCOPE FOR INTERCRAFT
MOBILITY IN THE RAIL INDUSTRY, IS CONSISTENT WITH THE VIEW THAT THE
PRIMARY UNION AND CONGRESSIONAL CONCERN WAS WITH THE ELIMINATION OF THE
"FREE RIDER" WHO DID NOT SUPPORT HIS REPRESENTATIVE'S PERFORMANCE OF
ITS FUNCTIONS UNDER THE ACT.  THE SECTION PROVIDES THAT AN OPERATING
EMPLOYEE CANNOT BE REQUIRED TO BECOME A MEMBER OF HIS CRAFT OR CLASS
REPRESENTATIVE IF "SAID EMPLOYEE SHALL HOLD OR ACQUIRE MEMBERSHIP IN
ANY ONE OF THE LABOR ORGANIZATIONS, NATIONAL IN SCOPE, ORGANIZED IN
ACCORDANCE WITH THIS CHAPTER AND ADMITTING TO MEMBERSHIP EMPLOYEES OF A
CRAFT OR CLASS IN ANY OF SAID SERVICES  ...  ."  THIS COURT HELD IN
PENNSYLVANIA R. CO. V. RYCHLIK, 352 U.S. 480, THAT THE UNIONS "NATIONAL
IN SCOPE" CONTEMPLATED BY THIS PROVISION ARE THOSE WHICH HAVE ALREADY
QUALIFIED AS ELECTORS UNDER SEC. 3 OF THE ACT TO PARTICIPATE IN THE
NATIONAL RAILROAD ADJUSTMENT BOARD.  AS THE COURT SAID IN PIGOTT V.
DETROIT, T.&I.R. CO., 116 F. SUPP. 949, 955, N. 11, AFF'D, 221 F.2D
736:  "EACH UNION PARTICIPATING IN THE AGENCIES OF THE ACT MUST ITSELF
PAY FOR THE SALARIES AND EXPENSES OF ITS OFFICIALS WHO SERVE IN SUCH
AGENCIES.  THIS CONSTITUTES A CONSIDERABLE FINANCIAL BURDEN WHICH MUST
BE REFLECTED IN THE DUES CHARGED THE EMPLOYEES.  UNLESS A LABOR
ORGANIZATION WERE OBLIGED TO PARTICIPATE IN THE JUDGMENT BOARD
MACHINERY BEFORE IT COULD QUALIFY FOR THE UNION SHOP EXCEPTION, IT
WOULD PLACE THE BARGAINING REPRESENTATIVE IN AN UNFAIR COMPETITIVE
POSITION WITH RESPECT TO A RIVAL UNION.  EMPLOYEES WOULD BE TEMPTED TO
DESERT THE ORGANIZATION OF A BARGAINING REPRESENTATIVE WHICH WAS
ASSUMING ITS RESPONSIBILITIES UNDER THE ACT IN FAVOR OF ANOTHER UNION
WHICH WAS NOT CONTRIBUTING TO ITS OPERATION AND WHICH COULD THEREBY
OFFER CHEAPER DUES.  THIS WOULD DEFEAT THE VERY PURPOSE OF THE UNION
AMENDMENT WHICH IS TO COMPEL EACH EMPLOYEE TO CONTRIBUTE HIS PART TO
THE BARGAINING REPRESENTATIVE'S ACTIVITIES ON HIS BEHALF, INCLUDING ITS
PARTICIPATION IN THE ADMINISTRATIVE MACHINERY OF THE ACT." 

FN16  SEE SENATE HEARINGS, PP. 173-174, 316-317; HOUSE HEARINGS, PP.
160, 172-173.  SEE ALSO 96 CONG. REC. 17049-17050. 

FN17  A DISTINCTION BETWEEN THE USE OF UNION FUNDS FOR POLITICAL
PURPOSES AND THEIR EXPENDITURE FOR NONPOLITICAL PURPOSES IS IMPLICIT IN
OTHER CONGRESSIONAL ENACTMENTS.  THUS THE TREASURY HAS ADOPTED THIS
REGULATION UNDER SEC. 162 OF THE INTERNAL REVENUE CODE OF 1954 TO
GOVERN THE DEDUCTIBILITY FOR INCOME-TAX PURPOSES OF PAYMENTS BY UNION
MEMBERS TO THEIR UNION: 

"DUES AND OTHER PAYMENTS TO AN ORGANIZATION, SUCH AS A LABOR UNION OR
A TRADE ASSOCIATION, WHICH OTHERWISE MEET THE REQUIREMENTS OF THE
REGULATIONS UNDER SECTION 162, ARE DEDUCTIBLE IN FULL UNLESS A
SUBSTANTIAL PART OF THE ORGANIZATION'S ACTIVITIES CONSISTS OF
EXPENDITURES FOR LOBBYING PURPOSES, FOR THE PROMOTION OR DEFEAT OF
LEGISLATION, FOR POLITICAL CAMPAIGN PURPOSES (INCLUDING THE SUPPORT OF
OR OPPOSITION TO ANY CANDIDATE FOR PUBLIC OFFICE), OR FOR CARRYING ON
PROPAGANDA (INCLUDING ADVERTISING) RELATED TO ANY OF THE FOREGOING
PURPOSES  ...  .  IF A SUBSTANTIAL PART OF THE ACTIVITIES OF THE
ORGANIZATION CONSISTS OF ONE OR MORE OF THOSE SPECIFIED, DEDUCTION WILL
BE ALLOWED ONLY FOR SUCH PORTION OF SUCH DUES AND OTHER PAYMENTS AS THE
TAXPAYER CAN CLEARLY ESTABLISH IS ATTRIBUTABLE TO ACTIVITIES OTHER THAN
THOSE SO SPECIFIED.  THE DETERMINATION AS TO WHETHER SUCH SPECIFIED
ACTIVITIES CONSTITUTE A SUBSTANTIAL PART OF AN ORGANIZATION'S
ACTIVITIES SHALL BE BASED ON ALL THE FACTS AND CIRCUMSTANCES.  IN NO
EVENT SHALL SPECIAL ASSESSMENTS OR SIMILAR PAYMENTS (INCLUDING AN
INCREASE IN DUES) MADE TO ANY ORGANIZATION FOR ANY OF SUCH SPECIFIED
PURPOSES BE DEDUCTIBLE."  26 CFR SEC. 1.162-15(C)(2); SEE ALSO REV.
PROC. 61-10, 1961-16 INT. REV. BULL.  49, APRIL 17, 1961.  CF.
CAMMARANO V. UNITED STATES, 358 U.S. 498. 

FN18  FOR EXAMPLE, MANY OF THE NATIONAL LABOR UNIONS MAINTAIN DEATH
BENEFIT FUNDS FROM THE DUES OF INDIVIDUAL MEMBERS TRANSMITTED BY THE
LOCALS. 

FN19  IN 1958 SENATOR POTTER PROPOSED AN AMENDMENT TO PENDING LABOR
LEGISLATION THAT WOULD HAVE GIVEN EMPLOYEES SUBJECT TO A UNION-SHOP
AGREEMENT THE RIGHT TO HAVE THEIR DUES USED ONLY FOR COLLECTIVE
BARGAINING AND RELATED PURPOSES AND WOULD HAVE REQUIRED THE SECRETARY
OF LABOR, IF HE DETERMINED THAT THE DUES WERE NOT SO EXPENDED, TO BRING
AN ACTION IN BEHALF OF THE DISSENTER FOR THE RECOVERY OF ALL THE MONEY
PAID BY THE DISSENTER TO THE UNION DURING THE LIFE OF THE AGREEMENT AND
FOR SUCH OTHER APPROPRIATE AND INJUNCTIVE RELIEF AS THE COURT DEEMED
JUST AND PROPER.  SEE 104 CONG. REC. 11330.  SENATOR POTTER ADVANCED
THIS PROPOSAL TO IMPLEMENT PRINCIPLES WHICH HE BELIEVED TO BE ALREADY
IMPLICIT IN THE LABOR LAWS.  HE SAID, "I KNOW THAT WHEN CONGRESS
ENACTED LEGISLATION PROVIDING FOR LABOR AND MANAGEMENT TO ENTER INTO
CONTRACTS FOR UNION SHOPS IT WAS INTENDED, UNDER THE UNION SHOP
PRINCIPLE, THAT LABOR WOULD USE THE DUES FOR COLLECTIVE-BARGAINING
PURPOSES."  104 CONG. REC. 11215; SEE ALSO ID., P. 11331.  THE FAILURE
OF THE AMENDMENT TO BE ADOPTED REFLECTED DISAGREEMENT IN THE SENATE
OVER THE SCOPE OF ITS COVERAGE AND DOUBTS AS TO THE PROPRIETY OF THE
BREADTH OF THE REMEDY.  SEE 104 CONG. REC. 11214-11224, 11330-11347. 

FN20  COMPARE SENATOR KENNEDY'S OBJECTION TO THE REMEDY FOR RECOVERY
OF ALL DUES CONTEMPLATED BY THE POTTER AMENDMENT.  104 CONG. REC.
11346. 

FN21 NO CONTENTION WAS MADE BELOW OR HERE THAT ANY OF THE
EXPENDITURES INVOLVED IN THIS CASE WERE MADE IN VIOLATION OF THE
FEDERAL CORRUPT PRACTICES ACT, 18 U.S.C. SEC. 610, OR ANY STATE CORRUPT
PRACTICES LEGISLATION. 

FN22  WE NOTE THAT THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT
OF 1959 REQUIRES EVERY LABOR ORGANIZATION SUBJECT TO THE FEDERAL LABOR
LAWS TO FILE ANNUALLY WITH THE SECRETARY OF LABOR A FINANCIAL REPORT AS
TO CERTAIN SPECIFIED DISBURSEMENTS AND ALSO "OTHER DISBURSEMENTS MADE
BY IT INCLUDING THE PURPOSES THEREOF  ...  ."  SEC. 201(B)(6).  EACH
UNION IS ALSO REQUIRED TO MAINTAIN RECORDS IN SUFFICIENT DETAIL TO
SUPPLY THE NECESSARY BASIC INFORMATION AND DATA FROM WHICH THE REPORT
MAY BE VERIFIED.  SEC. 206.  THE INFORMATION REQUIRED TO BE CONTAINED
IN SUCH REPORT MUST BE AVAILABLE TO ALL UNION MEMBERS.  SEC. 201(C). 

MR. JUSTICE DOUGLAS, CONCURRING. 

SOME FORCED ASSOCIATIONS ARE INEVITABLE IN AN INDUSTRIAL SOCIETY. 
ONE WHO OF NECESSITY RIDES BUSSES AND STREET CARS DOES NOT HAVE THE
FREEDOM THAT JOHN MUIR AND WALT WHITMAN EXTOLLED.  THE VERY EXISTENCE
OF A FACTORY BRINGS INTO BEING HUMAN COLONIES.  PUBLIC HOUSING IN SOME
AREAS MAY OF NECESSITY TAKE THE FORM OF APARTMENT BUILDINGS WHICH TO
SOME MAY BE AS REPULSIVE AS ANT HILLS.  YET PEOPLE IN TEEMING
COMMUNITIES OFTEN HAVE NO OTHER CHOICE. 

LEGISLATURES HAVE SOME LEEWAY IN DEALING WITH THE PROBLEMS CREATED BY
THESE MODERN PHENOMENA. 

COLLECTIVE BARGAINING IS A REMEDY FOR SOME OF THE PROBLEMS CREATED BY
MODERN FACTORY CONDITIONS.  THE BENEFICIARIES ARE ALL THE MEMBERS OF
THE LABORING FORCE.  WE THEREFORE CONCLUDED IN RAILWAY EMPLOYES' DEPT.
V. HANSON, 351 U.S. 225, THAT IT WAS PERMISSIBLE FOR THE LEGISLATURE TO
REQUIRE ALL WHO GAIN FROM COLLECTIVE BARGAINING TO CONTRIBUTE TO ITS
COST.  (FN1)  THAT IS THE NARROW AND PRECISE HOLDING OF THE HANSON
CASE, AS MR. JUSTICE BLACK SHOWS. 

ONCE AN ASSOCIATION WITH OTHERS IS COMPELLED BY THE FACTS OF LIFE,
SPECIAL SAFEGUARDS ARE NECESSARY LEST THE SPIRIT OF THE FIRST, FOURTH,
AND FIFTH AMENDMENTS BE LOST AND WE ALL SUCCUMB TO REGIMENTATION.  I
EXPRESSED THIS CONCERN IN PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S.
451, 467 (DISSENTING OPINION), WHERE A "CAPTIVE AUDIENCE" WAS FORCED TO
LISTEN TO SPECIAL RADIO BROADCASTS.  IF AN ASSOCIATION IS COMPELLED,
THE INDIVIDUAL SHOULD NOT BE FORCED TO SURRENDER ANY MATTERS OF
CONSCIENCE, BELIEF, OR EXPRESSION.  HE SHOULD BE ALLOWED TO ENTER THE
GROUP WITH HIS OWN FLAG FLYING, WHETHER IT BE RELIGIOUS, POLITICAL, OR
PHILOSOPHICAL; NOTHING THAT THE GROUP DOES SHOULD DEPRIVE HIM OF THE
PRIVILEGE OF PRESERVING AND EXPRESSING HIS AGREEMENT, DISAGREEMENT, OR
DISSENT, WHETHER IT COINCIDES WITH THE VIEW OF THE GROUP, OR CONFLICTS
WITH IT IN MINOR OR MAJOR WAYS; AND HE SHOULD NOT BE REQUIRED TO
FINANCE THE PROMOTION OF CAUSES WITH WHICH HE DISAGREES. 

IN A DEBATE ON THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, LATER
ADOPTED BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS ON DECEMBER 10,
1948, MR. MALIK OF LEBANON STATED WHAT I THINK IS THE CONTROLLING
PRINCIPLE IN CASES OF THE CHARACTER NOW BEFORE US: 

"THE SOCIAL GROUP TO WHICH THE INDIVIDUAL BELONGS, MAY, LIKE THE
HUMAN PERSON HIMSELF, BE WRONG OR RIGHT:  THE PERSON ALONE IS THE
JUDGE."  (FN2) 

THIS MEANS THAT MEMBERSHIP IN A GROUP CANNOT BE CONDITIONED ON THE
INDIVIDUAL'S ACCEPTANCE OF THE GROUP'S PHILOSOPHY.  (FN3)  OTHERWISE,
FIRST AMENDMENT RIGHTS ARE REQUIRED TO BE EXCHANGED FOR THE GROUP'S
ATTITUDE, PHILOSOPHY, OR POLITICS.  I DO NOT SEE HOW THAT IS
PERMISSIBLE UNDER THE CONSTITUTION.  SINCE NEITHER CONGRESS NOR THE
STATE LEGISLATURES CAN ABRIDGE THOSE RIGHTS, THEY CANNOT GRANT THE
POWER TO PRIVATE GROUPS TO ABRIDGE THEM.  AS I READ THE FIRST
AMENDMENT, IT FORBIDS ANY ABRIDGMENT BY GOVERNMENT WHETHER DIRECTLY OR
INDIRECTLY. 

THE COLLECTION OF DUES FOR PAYING THE COSTS OF COLLECTIVE BARGAINING
OF WHICH EACH MEMBER IS A BENEFICIARY IS ONE THING.  IF, HOWEVER, DUES
ARE USED, OR ASSESSMENTS ARE MADE, TO PROMOTE OR OPPOSE BIRTH CONTROL,
TO REPEAL OR INCREASE THE TAXES ON COSMETICS, TO PROMOTE OR OPPOSE THE
ADMISSION OF RED CHINA INTO THE UNITED NATIONS, AND THE LIKE, THEN THE
GROUP COMPELS AN INDIVIDUAL TO SUPPORT WITH HIS MONEY CAUSES BEYOND
WHAT GAVE RISE TO THE NEED FOR GROUP ACTION. 

I THINK THE SAME MUST BE SAID WHEN UNION DUES OR ASSESSMENTS ARE USED
TO ELECT A GOVERNOR, A CONGRESSMAN, A SENATOR, OR A PRESIDENT.  IT MAY
BE SAID THAT THE ELECTION OF A FRANKLIN D. ROOSEVELT RATHER THAN A
CALVIN COOLIDGE MIGHT BE THE BEST POSSIBLE WAY TO SERVE THE CAUSE OF
COLLECTIVE BARGAINING.  BUT EVEN SUCH A SELECTIVE USE OF UNION FUNDS
FOR POLITICAL PURPOSES SUBORDINATES THE INDIVIDUAL'S FIRST AMENDMENT
RIGHTS TO THE VIEWS OF THE MAJORITY.  I DO NOT SEE HOW THAT CAN BE
DONE, EVEN THOUGH THE OBJECTOR RETAINS HIS RIGHTS TO CAMPAIGN, TO
SPEAK, TO VOTE AS HE CHOOSES.  FOR WHEN UNION FUNDS ARE USED FOR THAT
PURPOSE, THE INDIVIDUAL IS REQUIRED TO FINANCE POLITICAL PROJECTS
AGAINST WHICH HE MAY BE IN REBELLION.  (FN4)  THE FURTHERANCE OF THE
COMMON CAUSE LEAVES SOME LEEWAY FOR THE LEADERSHIP OF THE GROUP.  AS
LONG AS THEY ACT TO PROMOTE THE CAUSE WHICH JUSTIFIED BRINGING THE
GROUP TOGETHER, THE INDIVIDUAL CANNOT WITHDRAW HIS FINANCIAL SUPPORT
MERELY BECAUSE HE DISAGREES WITH THE GROUP'S STRATEGY.  IF THAT WERE
ALLOWED, WE WOULD BE REVERSING THE HANSON CASE, SUB SILENTIO.  BUT
SINCE THE FUNDS HERE IN ISSUE ARE USED FOR CAUSES OTHER THAN DEFRAYING
THE COSTS OF COLLECTIVE BARGAINING, I WOULD AFFIRM THE JUDGMENT BELOW
WITH MODIFICATIONS.  ALTHOUGH I RECOGNIZE THE STRENGTH OF THE ARGUMENTS
ADVANCED BY MY BROTHERS BLACK AND WHITTAKER AGAINST GIVING A
"PROPORTIONAL" RELIEF TO APPELLEES IN THIS CASE, THERE IS THE PRACTICAL
PROBLEM OF MUSTERING FIVE JUSTICES FOR A JUDGMENT IN THIS CASE.  CF.
SCREWS V. UNITED STATES, 325 U.S. 91, 134.  SO I HAVE CONCLUDED
DUBITANTE TO AGREE TO THE ONE SUGGESTED BY MR. JUSTICE BRENNAN, ON THE
UNDERSTANDING THAT ALL RELIEF GRANTED WILL BE CONFINED TO THE SIX
PROTESTING EMPLOYEES.  THIS SUIT, THOUGH CALLED A "CLASS" ACTION, DOES
NOT MEET THE REQUIREMENTS AS THE USE OR NONUSE OF ANY DUES OR
ASSESSMENTS DEPENDS ON THE CHOICE OF EACH INDIVIDUAL, NOT THE GROUP. 
SEE HANSBERRY V. LEE, 311 U.S. 32, 44. 

FN1  THE PROBLEM OF EMPLOYEES WHO RECEIVE BENEFITS OF UNION
REPRESENTATION BUT WHO ARE UNWILLING TO GIVE FINANCIAL SUPPORT TO THE
UNION HAS RECEIVED MUCH ATTENTION FROM CONGRESS (SEE S. REP. NO. 105,
80TH CONG., 1ST SESS., PP. 5-7; H.R. REP. NO. 510, 80TH CONG., 1ST
SESS., PP. 42-43) AND FROM THE COURTS.  SEE RADIO OFFICERS V. LABOR
BOARD, 347 U.S. 17. 

FN2  COMMISSION ON HUMAN RIGHTS, SUMMARY RECORD OF THE FOURTEENTH
MEETING, FEBRUARY 4, 1947, U.N. DOC. E/CN.4/SR.14, P. 4. 

FN3  WE NOTED IN THE HANSON CASE, 351 U.S. 236-237, N. 8, VARIOUS
RESTRICTIONS PLACED BY UNION CONSTITUTIONS AND BY-LAWS ON INDIVIDUAL
MEMBERS.  SOME DISQUALIFIED PERSONS FROM MEMBERSHIP FOR THEIR POLITICAL
VIEWS OR ASSOCIATIONS.  CERTAINLY GOVERNMENT COULD NOT PRESCRIBE
STANDARDS OF THAT CHARACTER. 

SOME RESTRAINED MEMBERS FROM CERTAIN KINDS OF SPEECH OR ACTIVITY. 
CERTAINLY GOVERNMENT COULD NOT IMPOSE THESE RESTRAINTS. 

SOME REQUIRED THE USE OF PORTIONS OF UNION FUNDS FOR PURPOSES OTHER
THAN COLLECTIVE BARGAINING.  PLAINLY THOSE CONDITIONS COULD NOT BE
IMPOSED BY THE STATE OR FEDERAL GOVERNMENT OR ENFORCED BY THE JUDICIAL
BRANCH OF GOVERNMENT.  SEE SHELLEY V. KRAEMER, 334 U.S. 1; BARROWS V.
JACKSON, 346 U.S. 249. 

FN4  HOSTILITY TO SUCH COMPULSION WAS EXPRESSED EARLY IN OUR
HISTORY.  MADISON, IN HIS MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS
ASSESSMENTS, WROTE, "WHO DOES NOT SEE  ...  THAT THE SAME AUTHORITY
WHICH CAN FORCE A CITIZEN TO CONTRIBUTE THREE PENCE ONLY OF HIS
PROPERTY FOR THE SUPPORT OF ANY ONE ESTABLISHMENT, MAY FORCE HIM TO
CONFORM TO ANY OTHER ESTABLISHMENT IN ALL CASES WHATSOEVER?"  II
WRITINGS OF JAMES MADISON (HUNT ED. 1901), P. 186. 

JEFFERSON IN HIS 1779 BILL FOR RELIGIOUS LIBERTY WROTE "THAT TO
COMPEL A MAN TO FURNISH CONTRIBUTIONS OF MONEY FOR THE PROPAGATION OF
OPINIONS WHICH HE DISBELIEVES IS SINFUL AND TYRANNICAL."  SEE 12
HENING'S VA. STAT. 85; BRANT, MADISON, THE NATIONALIST (1948), P. 354. 

MR. JUSTICE WHITTAKER, CONCURRING IN PART AND DISSENTING IN PART. 

UNDERSTANDING THE COURT'S OPINION TO HOLD - PUT IN MY OWN WORDS -
THAT, IN ENACTING SEC. 2, ELEVENTH OF THE RAILWAY LABOR ACT, CONGRESS
INTENDED TO, AND IMPLIEDLY DID, LIMIT THE USE THAT RAILWAY LABOR UNIONS
MAY MAKE OF DUES, FEES AND ASSESSMENTS, COLLECTED FROM THOSE OF ITS
MEMBERS WHO WERE OR ARE REQUIRED TO BECOME OR REMAIN ITS MEMBERS BY
FORCE OF UNION SHOP CONTRACTS NEGOTIATED AS PERMITTED BY THAT SECTION,
ONLY TO DEFRAY THE COSTS OF NEGOTIATING AND ADMINISTERING COLLECTIVE
BARGAINING AGREEMENTS - INCLUDING THE ADJUSTMENT AND SETTLEMENT OF
DISPUTES - AND THAT THE HANSON CASE, RIGHTLY CONSTRUED, UPHOLDS NO MORE
THAN THAT, I JOIN POINTS I, II AND III OF THE COURT'S OPINION. 

BUT I DISSENT FROM POINT IV OF THE COURT'S OPINION.  IN RESPECT TO
THAT POINT, IT SEEMS APPROPRIATE TO MAKE THE FOLLOWING OBSERVATIONS. 
WHEN MANY MEMBERS PAY THE SAME AMOUNT OF MONTHLY DUES INTO THE TREASURY
OF THE UNION WHICH DISPENSES THE FUND FOR WHAT ARE, UNDER THE COURT'S
OPINION, BOTH PERMITTED AND PROSCRIBED ACTIVITIES, HOW CAN IT BE TOLD
WHOSE DUES PAID FOR WHAT?  LET US SUPPOSE A UNION WITH TWO MEMBERS,
EACH PAYING MONTHLY DUES OF THREE DOLLARS, AND THAT ONE DOES BUT THE
OTHER DOES NOT OBJECT TO HIS DUES BEING EXPENDED FOR "PROSCRIBED
ACTIVITY" - WHATEVER THAT PHRASE MAY MEAN.  OF THE DUES FOR A GIVEN
MONTH, THE UNION EXPENDS FOUR DOLLARS FOR ADMITTEDLY PROPER ACTIVITY
AND TWO DOLLARS FOR "PROSCRIBED ACTIVITY," ANSWERING TO THE OBJECTOR
THAT THE TWO DOLLARS SPENT FOR "PROSCRIBED ACTIVITY" WERE NOT FROM HIS,
BUT FROM THE OTHER'S, DUES.  WOULD NOT THE RESULT BE THAT THE OBJECTOR
WAS THUS REQUIRED TO PAY NOT HIS ONE-HALF BUT THREE-FOURTHS OF THE
UNION'S LEGITIMATE EXPENSES?  OR, HAS NOT THE OBJECTOR NEVERTHELESS
PAID A RATABLE PART OF THE COST OF THE "PROSCRIBED ACTIVITY"? 

THE COURT SUGGESTS THAT A PROPER DECREE MIGHT REQUIRE "RESTITUTION"
TO THE OBJECTOR OF THAT PART OF HIS DUES THAT IS EQUAL TO THE RATIO OF
DUES SPENT FOR "PROSCRIBED ACTIVITY" TO TOTAL DUES COLLECTED BY THE
UNION.  BUT EVEN IF THE COURT COULD DRAW A CLEAR LINE BETWEEN WHAT IS
AND WHAT IS NOT "PROSCRIBED ACTIVITY," THE ACCOUNTING AND PROOF
PROBLEMS INVOLVED WOULD MAKE THE REMEDY MOST ONEROUS AND IMPRACTICAL. 
BUT WHEN THERE IS ADDED TO THIS A FULL RECOGNITION OF THE PRACTICAL
IMPOSSIBILITY OF JUDICIALLY DRAWING THE CLEAR LINE MENTIONED AND ALSO
OF THE FACT THAT THE LOCAL UNIONS WHICH COLLECT THE DUES PROMPTLY PAY A
PART OF THEM TO THE NATIONAL UNION WHICH, IN TURN, ALSO ENGAGES IN
"PROSCRIBED ACTIVITY," IT BECOMES PLAIN THAT THE SUGGESTED RESTITUTION
REMEDY IS IMPOSSIBLE OF PRACTICAL PERFORMANCE. 

IT WOULD SEEM TO FOLLOW THAT THE ONLY PRACTICAL REMEDY POSSIBLE IS
THE ONE FORMULATED BY THE GEORGIA COURTS, AND I WOULD APPROVE IT. 

MR. JUSTICE BLACK, DISSENTING. 

THIS ACTION WAS BROUGHT IN A GEORGIA STATE COURT BY SIX RAILROAD
EMPLOYEES (FN1) IN BEHALF OF THEMSELVES "AND OTHERS SIMILARLY SITUATED"
AGAINST RAILROADS MAKING UP THE SOUTHERN RAILWAY SYSTEM, LABOR
ORGANIZATIONS REPRESENTING EMPLOYEES OF THAT SYSTEM IN COLLECTIVE
BARGAINING, AND A NUMBER OF INDIVIDUALS, TO ENJOIN ENFORCEMENT AND
APPLICATION TO THEM OF A UNION-SHOP AGREEMENT ENTERED INTO BETWEEN THE
RAILROADS AND THE LABOR ORGANIZATIONS AS AUTHORIZED BY SEC. 2, ELEVENTH
OF THE RAILWAY LABOR ACT.  (FN2)  THE AGREEMENT'S TERMS REQUIRED ALL
EMPLOYEES, IN ORDER TO KEEP THEIR RAILROAD JOBS, TO JOIN THE UNION AND
REMAIN MEMBERS, AT LEAST TO THE EXTENT OF TENDERING PERIODIC DUES,
INITIATION FEES AND ASSESSMENTS, NOT INCLUDING FINES AND PENALTIES. 
(FN3)  THE COMPLAINT, AS AMENDED, CHARGED THAT THE AGREEMENT WAS VOID
BECAUSE IT CONFLICTED WITH THE LAWS AND CONSTITUTION OF GEORGIA AND THE
FIRST, FIFTH, NINTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL
CONSTITUTION.  SECTION 2, ELEVENTH PROVIDES THAT SUCH UNION SHOPS ARE
VALID "NOTWITHSTANDING ANY OTHER  ...  STATUTE OR LAW OF THE UNITED
STATES  ...  OR OF ANY STATE."  RELYING ON OUR DECISION IN RAILWAY
EMPLOYES' DEPT. V. HANSON, 351 U.S. 225, WHICH UPHELD CONTRACTS MADE
PURSUANT TO THAT SECTION, THE GEORGIA TRIAL COURT DISMISSED THE
COMPLAINT AS AMENDED.  THE STATE SUPREME COURT REVERSED AND REMANDED
THE CASE FOR TRIAL, DISTINGUISHING OUR HANSON DECISION AS FOLLOWS: 

"IT IS ALLEGED THAT THE UNION DUES AND OTHER PAYMENTS THEY WILL BE
REQUIRED TO MAKE TO THE UNION WILL BE USED TO 'SUPPORT IDEOLOGICAL AND
POLITICAL DOCTRINES AND CANDIDATES' WHICH THEY ARE UNWILLING TO SUPPORT
AND IN WHICH THEY DO NOT BELIEVE, AND THAT THIS WILL VIOLATE THE FIRST,
FIFTH AND NINTH AMENDMENTS OF THE CONSTITUTION.  WHILE RAILWAY EMP. 
DEPT.  V. HANSON, 351 U.S. 225, SUPRA, UPHELD THE VALIDITY OF A CLOSED
SHOP CONTRACT EXECUTED UNDER SEC. 2, ELEVENTH, THAT OPINION CLEARLY
INDICATES THAT THAT COURT WOULD NOT APPROVE A REQUIREMENT THAT ONE JOIN
THE UNION IF HIS CONTRIBUTIONS THERETO WERE USED AS THIS PETITION
ALLEGES.  IT IS THERE SAID (HEADNOTE 3C): 'JUDGMENT IS RESERVED
(ITALICS IN GEORGIA SUPREME COURT OPINION) AS TO THE VALIDITY OR
ENFORCEABILITY OF A UNION OR CLOSED SHOP AGREEMENT IF OTHER CONDITIONS
OF UNION MEMBERSHIP ARE IMPOSED OR IF THE EXACTION OF DUES, INITIATION
FEES OR ASSESSMENTS IS USED AS A COVER FOR FORCING IDEOLOGICAL
CONFORMITY OR OTHER ACTION IN CONTRAVENTION OF THE FIRST OR THE FIFTH
AMENDMENT.'  WE MUST RENDER JUDGMENT NOW UPON THIS PRECISE QUESTION. 
WE DO NOT BELIEVE ONE CAN CONSTITUTIONALLY BE COMPELLED TO CONTRIBUTE
MONEY TO SUPPORT IDEAS, POLITICS AND CANDIDATES WHICH HE OPPOSES  ...
."  (FN4) 

ON REMAND, TESTIMONY, ADMISSIONS AND STIPULATIONS SHOWED WITHOUT
DISPUTE THAT UNION FUNDS COLLECTED FROM DUES, FEES AND ASSESSMENTS WERE
REGULARLY USED TO SUPPORT AND OPPOSE VARIOUS POLITICAL AND ECONOMIC
PROGRAMS, CANDIDATES, PARTIES AND IDEOLOGICAL CAUSES, AND THAT THE
COMPLAINING EMPLOYEES WERE OPPOSED TO MANY OF THE POSITIONS THE UNIONS
TOOK IN THESE MATTERS.  THE TRIAL COURT MADE LENGTHY FINDINGS, ONE
CRUCIAL HERE BEING: 

"THOSE FUNDS HAVE BEEN AND ARE BEING USED IN SUBSTANTIAL AMOUNTS TO
PROPAGATE POLITICAL AND ECONOMIC DOCTRINES, CONCEPTS AND IDEOLOGIES AND
TO PROMOTE LEGISLATIVE PROGRAMS OPPOSED BY PLAINTIFFS AND THE CLASS
THEY REPRESENT." 

THE TRIAL COURT THEN FOUND AND DECLARED SEC. 2, ELEVENTH
"UNCONSTITUTIONAL TO THE EXTENT THAT IT PERMITS, OR IS APPLIED TO
PERMIT, THE EXACTION OF FUNDS FROM PLAINTIFFS AND THE CLASS THEY
REPRESENT FOR THE COMPLAINED OF PURPOSES AND ACTIVITIES SET FORTH
ABOVE."  COMPULSORY MEMBERSHIP UNDER THESE CIRCUMSTANCES WAS HELD TO
ABRIDGE FIRST AMENDMENT FREEDOMS OF ASSOCIATION, THOUGHT, SPEECH, PRESS
AND POLITICAL EXPRESSION.  (FN5)  ON THE BASIS OF THIS HOLDING THE
TRIAL COURT ENJOINED ALL THE DEFENDANTS "FROM ENFORCING THE SAID UNION
SHOP AGREEMENTS  ...  AND FROM DISCHARGING PETITIONERS, OR ANY MEMBER
OF THE CLASS THEY REPRESENT, FOR REFUSING TO BECOME OR REMAIN MEMBERS
OF, OR PAY PERIODIC DUES, FEES, OR ASSESSMENTS TO, ANY OF THE LABOR
UNION DEFENDANTS, PROVIDED, HOWEVER, THAT SAID DEFENDANTS MAY AT ANY
TIME PETITION THE COURT TO DISSOLVE SAID INJUNCTION UPON A SHOWING THAT
THEY NO LONGER ARE ENGAGING IN THE IMPROPER AND UNLAWFUL ACTIVITIES
DESCRIBED ABOVE."  AGAIN, THE ACTIVITIES REFERRED TO WERE THE USE OF
UNION FUNDS COLLECTED FROM FEES, DUES AND ASSESSMENTS TO SUPPORT
CANDIDATES, PARTIES, OR IDEOLOGICAL, ECONOMIC OR POLITICAL VIEWS
CONTRARY TO THE WISHES OF THE COMPLAINING EMPLOYEES.  THE TRIAL COURT
ALSO DECREED THAT THE THREE EMPLOYEES WHO HAD BEEN COMPELLED UNDER
PROTEST TO PAY DUES, FEES AND ASSESSMENTS BECAUSE OF THE UNION-SHOP
AGREEMENT WERE ENTITLED TO HAVE THOSE PAYMENTS RETURNED. 

THE SUPREME COURT OF GEORGIA AFFIRMED, HOLDING THAT "ONE WHO IS
COMPELLED TO CONTRIBUTE THE FRUITS OF HIS LABOR TO SUPPORT OR PROMOTE
POLITICAL OR ECONOMIC PROGRAMS OR SUPPORT CANDIDATES FOR PUBLIC OFFICE
IS JUST AS MUCH DEPRIVED OF HIS FREEDOM OF SPEECH AS IF HE WERE
COMPELLED TO GIVE HIS VOCAL SUPPORT TO DOCTRINES HE OPPOSES."  (FN6)  I
FULLY AGREE WITH THIS HOLDING OF THE GEORGIA SUPREME COURT AND WOULD
AFFIRM ITS JUDGMENT WITH CERTAIN MODIFICATIONS OF THE RELIEF GRANTED. 

I. 

RAILROADS TO MAKE UNION-SHOP AGREEMENTS NOTWITHSTANDING ANY OTHER
PROVISION OF STATE OR FEDERAL LAW.  SUCH A CONTRACT SIMPLY MEANS THAT
NO PERSON CAN KEEP A JOB WITH THE CONTRACTING RAILROAD UNLESS HE
BECOMES A MEMBER OF AND PAYS DUES TO THE CONTRACTING UNION.  NEITHER
SEC. 2, ELEVENTH NOR ANY OTHER PART OF THE ACT CONTAINS ANY IMPLICATION
OR EVEN A HINT THAT CONGRESS WANTED TO LIMIT THE PURPOSES FOR WHICH A
CONTRACTING UNION'S DUES SHOULD OR COULD BE SPENT.  ALL THE PARTIES TO
THIS LITIGATION HAVE AGREED FROM ITS BEGINNING, AND STILL AGREE, THAT
THERE IS NO SUCH LIMITATION IN THE ACT.  THE COURT NEVERTHELESS, IN
ORDER TO AVOID CONSTITUTIONAL QUESTIONS, INTERPRETS THE ACT ITSELF AS
BARRING USE OF DUES FOR POLITICAL PURPOSES.  IN DOING THIS I THINK THE
COURT IS ONCE MORE "CARRYING THE DOCTRINE OF AVOIDING CONSTITUTIONAL
QUESTIONS TO A WHOLLY UNJUSTIFIABLE EXTREME."  (FN7)  IN FACT, I THINK
THE COURT IS ACTUALLY REWRITING SEC. 2, ELEVENTH TO MAKE IT MEAN
EXACTLY WHAT CONGRESS REFUSED TO MAKE IT MEAN.  THE VERY LEGISLATIVE
HISTORY RELIED ON BY THE COURT APPEARS TO ME TO PROVE THAT ITS
INTERPRETATION OF SEC. 2, ELEVENTH IS WITHOUT JUSTIFICATION.  FOR THAT
HISTORY SHOWS THAT CONGRESS WITH ITS EYES WIDE OPEN PASSED THAT
DUES TO ADVOCATE CAUSES, DOCTRINES, LAWS, CANDIDATES AND PARTIES,
WHETHER INDIVIDUAL MEMBERS OBJECTED OR NOT.  (FN8)  UNDER SUCH
CIRCUMSTANCES I THINK CONGRESS HAS A RIGHT TO A DETERMINATION OF THE
CONSTITUTIONALITY OF THE STATUTE IT PASSED, RATHER THAN TO HAVE THE
COURT REWRITE THE STATUTE IN THE NAME OF AVOIDING DECISION OF
CONSTITUTIONAL QUESTIONS. 

THE END RESULT OF WHAT THE COURT IS DOING IS TO DISTORT THIS STATUTE
SO AS TO DEPRIVE UNIONS OF RIGHTS I THINK CONGRESS TRIED TO GIVE THEM
AND AT THE SAME TIME, IN THE COMPANION CASE OF LATHROP V. DONOHUE,
DECIDED TODAY, POST, P. 820, LEAVE ITSELF FREE LATER TO HOLD THAT
INTEGRATED BAR ASSOCIATIONS CAN CONSTITUTIONALLY EXERCISE THE POWERS
NOW DENIED TO LABOR UNIONS FOR FEAR OF UNCONSTITUTIONALITY.  THE
CONSTITUTIONAL QUESTION RAISED ALIKE IN THIS CASE AND IN LATHROP IS
BOUND TO COME BACK HERE SOON WITH A RECORD SO METICULOUSLY PERFECT THAT
THE COURT CANNOT ESCAPE DECIDING IT.  SHOULD THE COURT THEN HOLD THAT
LAWYERS AND WORKERS CAN CONSTITUTIONALLY BE COMPELLED TO PAY FOR THE
SUPPORT OF VIEWS THEY ARE AGAINST, THE RESULT WOULD BE THAT THE LABOR
UNIONS WOULD HAVE LOST THEIR CASE THIS YEAR ON A STATUTORY
CONSTITUTIONAL BASIS WHILE THE INTEGRATED BAR WOULD WIN ITS CASE NEXT
YEAR OR THE YEAR AFTER ON THE GROUND THAT THE CONSTITUTIONAL PART OF
THE BASIS FOR THE HOLDING AGAINST THE UNIONS TODAY WAS GROUNDLESS.  YET
NO ONE HAS SUGGESTED THAT THE COURT'S STATUTORY CONSTRUCTION OF SEC. 2,
ELEVENTH COULD POSSIBLY BE SUPPORTED WITHOUT THE CRUTCH OF ITS FEAR OF
UNCONSTITUTIONALITY.  THIS IS WHY I THINK THE COURT'S AVOIDANCE OF THE
CONSTITUTIONAL ISSUE IN BOTH CASES TODAY IS WHOLLY UNFAIR TO THE UNIONS
AS WELL AS TO CONGRESS.  I MUST CONSIDER THIS CASE ON THE BASIS OF MY
BELIEF AS TO THE CONSTITUTIONALITY OF SEC. 2, ELEVENTH, INTERPRETED SO
AS TO AUTHORIZE COMPULSION OF WORKERS TO PAY DUES TO A UNION FOR USE IN
ADVOCATING CAUSES AND POLITICAL CANDIDATES THAT THE PROTESTING WORKERS
ARE AGAINST. 

                                       II. 

IT IS CONTENDED BY THE UNIONS THAT PRECISELY THE SAME FIRST AMENDMENT
QUESTION PRESENTED HERE WAS CONSIDERED AND DECIDED IN RAILWAY EMPLOYES'
DEPT. V. HANSON, 351 U.S. 225.  I AGREE THAT IT CLEARLY WAS NOT. 
THE MAIN GROUNDS OF ATTACK, AS OUR OPINION NOTED, WERE THAT THE UNION
SHOP AGREEMENT WOULD DEPRIVE EMPLOYEES OF THEIR FREEDOM OF ASSOCIATION
UNDER THE FIRST AMENDMENT AND OF THEIR PROPERTY RIGHTS UNDER THE
FIFTH.  THERE WERE NOT IN THE HANSON CASE, AS THERE ARE HERE,
ALLEGATIONS, PROOF AND FINDINGS THAT UNION FUNDS REGULARLY WERE BEING
USED TO SUPPORT POLITICAL PARTIES, CANDIDATES AND ECONOMIC AND
IDEOLOGICAL CAUSES TO WHICH THE COMPLAINING EMPLOYEES WERE HOSTILE. 
OUR OPINION IN HANSON CAREFULLY POINTED TO THE FACT THAT ONLY GENERAL
"WIDE-RANGED PROBLEMS" WERE TENDERED UNDER THE FIRST AMENDMENT AND THAT
IMPOSITION OF "ASSESSMENTS  ...  NOT GERMANE TO COLLECTIVE BARGAINING"
WOULD PRESENT "A DIFFERENT PROBLEM."  THE COURT WENT ON FURTHER TO
EMPHASIZE THAT IF AT ANOTHER TIME "THE EXACTION OF DUES, INITIATION
FEES, OR ASSESSMENTS IS USED AS A COVER FOR FORCING IDEOLOGICAL
CONFORMITY OR OTHER ACTION IN CONTRAVENTION OF THE FIRST AMENDMENT,
THIS JUDGMENT WILL NOT PREJUDICE THE DECISION IN THAT CASE  ...  .  WE
ONLY HOLD THAT THE REQUIREMENT FOR FINANCIAL SUPPORT OF THE COLLECTIVE
BARGAINING AGENCY BY ALL WHO RECEIVE THE BENEFITS OF ITS WORK IS WITHIN
THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE AND DOES NOT VIOLATE
EITHER THE FIRST OR THE FIFTH AMENDMENTS."  (FN9) 

THUS THE HANSON CASE HELD ONLY THAT WORKERS COULD BE REQUIRED TO PAY
THEIR PART OF THE COST OF ACTUAL BARGAINING CARRIED ON BY A UNION
SELECTED AS BARGAINING AGENT UNDER AUTHORITY OF CONGRESS, JUST AS
CONGRESS DOUBTLESS COULD HAVE REQUIRED WORKERS TO PAY THE COST OF SUCH
BARGAINING HAD IT CHOSEN TO HAVE THE BARGAINING CARRIED ON BY THE
SECRETARY OF LABOR OR ANY OTHER APPROPRIATELY SELECTED BARGAINING
AGENT.  THE HANSON CASE DID NOT HOLD THAT RAILROAD WORKERS COULD BE
COMPELLED BY LAW TO FOREGO THEIR CONSTITUTIONALLY PROTECTED FREEDOM OF
ASSOCIATION BY PARTICIPATING AS UNION "MEMBERS" AGAINST THEIR WILL. 
THAT CASE CANNOT, THEREFORE, PROPERLY BE READ TO REST ON A PRINCIPLE
WHICH WOULD PERMIT GOVERNMENT - IN FURTHERANCE OF SOME PUBLIC INTEREST,
BE THAT INTEREST ACTUAL OR IMAGINARY - TO COMPEL MEMBERSHIP IN ROTARY
CLUBS, FRATERNAL ORGANIZATIONS, RELIGIOUS GROUPS, CHAMBERS OF COMMERCE,
BAR ASSOCIATIONS, LABOR UNIONS, OR ANY OTHER PRIVATE ORGANIZATIONS
GOVERNMENT MAY DECIDE IT WANTS TO SUBSIDIZE, SUPPORT OR CONTROL.  IN A
WORD, THE HANSON CASE DID NOT HOLD THAT THE EXISTENCE OF UNION-SHOP
CONTRACTS COULD BE USED AS AN EXCUSE TO FORCE WORKERS TO ASSOCIATE WITH
PEOPLE THEY DO NOT WANT TO ASSOCIATE WITH, OR TO PAY THEIR MONEY TO
SUPPORT CAUSES THEY DETEST. 

                                       III. 

THE FIRST AMENDMENT PROVIDES: 

"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." 

PROBABLY NO ONE WOULD SUGGEST THAT CONGRESS COULD, WITHOUT VIOLATING
THIS AMENDMENT, PASS A LAW TAXING WORKERS, OR ANY PERSONS FOR THAT
MATTER (EVEN LAWYERS), TO CREATE A FUND TO BE USED IN HELPING CERTAIN
POLITICAL PARTIES OR GROUPS FAVORED BY THE GOVERNMENT TO ELECT THEIR
CANDIDATES OR PROMOTE THEIR CONTROVERSIAL CAUSES.  COMPELLING A MAN BY
LAW TO PAY HIS MONEY TO ELECT CANDIDATES OR ADVOCATE LAWS OR DOCTRINES
HE IS AGAINST DIFFERS ONLY IN DEGREE, IF AT ALL, FROM COMPELLING HIM BY
LAW TO SPEAK FOR A CANDIDATE, A PARTY, OR A CAUSE HE IS AGAINST.  THE
VERY REASON FOR THE FIRST AMENDMENT IS TO MAKE THE PEOPLE OF THIS
COUNTRY FREE TO THINK, SPEAK, WRITE AND WORSHIP AS THEY WISH, NOT AS
THE GOVERNMENT COMMANDS. 

THERE IS, OF COURSE, NO CONSTITUTIONAL REASON WHY A UNION OR OTHER
PRIVATE GROUP MAY NOT SPEND ITS FUNDS FOR POLITICAL OR IDEOLOGICAL
CAUSES IF ITS MEMBERS VOLUNTARILY JOIN IT AND CAN VOLUNTARILY GET OUT
OF IT.  (FN10)  LABOR UNIONS MADE UP OF VOLUNTARY MEMBERS FREE TO GET
IN OR OUT OF THE UNIONS WHEN THEY PLEASE HAVE PLAYED IMPORTANT AND
USEFUL ROLES IN POLITICS AND ECONOMIC AFFAIRS.  (FN11) HOW TO SPEND ITS
MONEY IS A QUESTION FOR EACH VOLUNTARY GROUP TO DECIDE FOR ITSELF IN
THE ABSENCE OF SOME VALID LAW FORBIDDING ACTIVITIES FOR WHICH THE MONEY
IS SPENT.  (FN12)  BUT A DIFFERENT SITUATION ARISES WHEN A FEDERAL LAW
STEPS IN AND AUTHORIZES SUCH A GROUP TO CARRY ON ACTIVITIES AT THE
EXPENSE OF PERSONS WHO DO NOT CHOOSE TO BE MEMBERS OF THE GROUP AS WELL
AS THOSE WHO DO.  SUCH A LAW, EVEN THOUGH VALIDLY PASSED BY CONGRESS,
CANNOT BE USED IN A WAY THAT ABRIDGES THE SPECIFICALLY DEFINED FREEDOMS
OF THE FIRST AMENDMENT.  AND WHETHER THERE IS SUCH ABRIDGMENT DEPENDS
NOT ONLY ON HOW THE LAW IS WRITTEN BUT ALSO ON HOW IT WORKS.  (FN13) 

THERE CAN BE NO DOUBT THAT THE FEDERALLY SANCTIONED UNION-SHOP
CONTRACT HERE, AS IT ACTUALLY WORKS, TAKES A PART OF THE EARNINGS OF
SOME MEN AND TURNS IT OVER TO OTHERS, WHO SPEND A SUBSTANTIAL PART OF
THE FUNDS SO RECEIVED IN EFFORTS TO THWART THE POLITICAL, ECONOMIC AND
IDEOLOGICAL HOPES OF THOSE WHOSE MONEY HAS BEEN FORCED FROM THEM UNDER
AUTHORITY OF LAW.  THIS INJECTS FEDERAL COMPULSION INTO THE POLITICAL
AND IDEOLOGICAL PROCESSES, A RESULT WHICH I HAVE SUPPOSED EVERYONE
WOULD AGREE THE FIRST AMENDMENT WAS PARTICULARLY INTENDED TO PREVENT. 
AND IT MAKES NO DIFFERENCE IF, AS IS URGED, POLITICAL AND LEGISLATIVE
ACTIVITIES ARE HELPFUL ADJUNCTS OF COLLECTIVE BARGAINING.  DOUBTLESS
EMPLOYERS COULD MAKE THE SAME ARGUMENTS IN FAVOR OF COMPULSORY
CONTRIBUTIONS TO AN ASSOCIATION OF EMPLOYERS FOR USE IN POLITICAL AND
ECONOMIC PROGRAMS CALCULATED TO HELP COLLECTIVE BARGAINING ON THEIR
SIDE.  BUT THE ARGUMENT IS EQUALLY UNAPPEALING WHOEVER MAKES IT.  THE
STARK FACT IS THAT THIS ACT OF CONGRESS IS BEING USED AS A MEANS TO
EXACT MONEY FROM THESE EMPLOYEES TO HELP GET VOTES TO WIN ELECTIONS FOR
PARTIES AND CANDIDATES AND TO SUPPORT DOCTRINES THEY ARE AGAINST.  IF
THIS IS CONSTITUTIONAL THE FIRST AMENDMENT IS NOT THE CHARTER OF
POLITICAL AND RELIGIOUS LIBERTY ITS SPONSORS BELIEVED IT TO BE.  JAMES
MADISON, WHO WROTE THE AMENDMENT, SAID IN ARGUING FOR RELIGIOUS LIBERTY
THAT "THE SAME AUTHORITY WHICH CAN FORCE A CITIZEN TO CONTRIBUTE THREE
PENCE ONLY OF HIS PROPERTY FOR THE SUPPORT OF ANY ONE ESTABLISHMENT,
MAY FORCE HIM TO CONFORM TO ANY OTHER ESTABLISHMENT IN ALL CASES
WHATSOEVER."  (FN14)  AND THOMAS JEFFERSON SAID THAT "TO COMPEL A MAN
TO FURNISH CONTRIBUTIONS OF MONEY FOR THE PROPAGATION OF OPINIONS WHICH
HE DISBELIEVES, IS SINFUL AND TYRANNICAL."  (FN15)  THESE VIEWS OF
MADISON AND JEFFERSON AUTHENTICALLY REPRESENT THE PHILOSOPHY EMBODIED
IN THE SAFEGUARDS OF THE FIRST AMENDMENT.  THAT AMENDMENT LEAVES THE
FEDERAL GOVERNMENT NO POWER WHATEVER TO COMPEL ONE MAN TO EXPEND HIS
ENERGY, HIS TIME OR HIS MONEY TO ADVANCE THE FORTUNES OF CANDIDATES HE
WOULD LIKE TO SEE DEFEATED OR TO URGE IDEOLOGIES AND CAUSES HE BELIEVES
WOULD BE HURTFUL TO THE COUNTRY.    THE COURT HOLDS THAT SEC. 2,
ELEVENTH DENIES "UNIONS, OVER AN EMPLOYEE'S OBJECTION, THE POWER TO USE
HIS EXACTED FUNDS TO SUPPORT POLITICAL CAUSES WHICH HE OPPOSES."  WHILE
I DO NOT SO CONSTRUE SEC. 2, ELEVENTH, I WANT TO MAKE CLEAR THAT I
BELIEVE THE FIRST AMENDMENT BARS USE OF DUES EXTORTED FROM AN EMPLOYEE
BY LAW FOR THE PROMOTION OF CAUSES, DOCTRINES AND LAWS THAT UNIONS
GENERALLY FAVOR TO HELP THE UNIONS, AS WELL AS ANY OTHER POLITICAL
PURPOSES.  I THINK WORKERS HAVE AS MUCH RIGHT TO THEIR OWN VIEWS ABOUT
MATTERS AFFECTING UNIONS AS THEY HAVE TO VIEWS ABOUT OTHER MATTERS IN
THE FIELDS OF POLITICS AND ECONOMICS.  INDEED, SOME OF THEIR MOST
STRONGLY HELD VIEWS ARE APT TO BE PRECISELY ON THE SUBJECT OF UNIONS,
JUST AS QUESTIONS OF LAW REFORM, COURT PROCEDURE, SELECTION OF JUDGES
AND OTHER ASPECTS OF THE "ADMINISTRATION OF JUSTICE" GIVE RISE TO SOME
OF THE DEEPEST AND MOST IRRECONCILABLE DIFFERENCES AMONG LAWYERS.  IN
MY VIEW, SEC. 2, ELEVENTH CAN CONSTITUTIONALLY AUTHORIZE NO MORE THAN
TO MAKE A WORKER PAY DUES TO A UNION FOR THE SOLE PURPOSE OF DEFRAYING
THE COST OF ACTING AS HIS BARGAINING AGENT.  OUR GOVERNMENT HAS NO MORE
POWER TO COMPEL INDIVIDUALS TO SUPPORT UNION PROGRAMS OR UNION
PUBLICATIONS THAN IT HAS TO COMPEL THE SUPPORT OF POLITICAL PROGRAMS,
EMPLOYER PROGRAMS OR CHURCH PROGRAMS.  AND THE FIRST AMENDMENT, FAIRLY
CONSTRUED, DEPRIVES THE GOVERNMENT OF ALL POWER TO MAKE ANY PERSON PAY
OUT ONE SINGLE PENNY AGAINST HIS WILL TO BE USED IN ANY WAY TO ADVOCATE
DOCTRINES OR VIEWS HE IS AGAINST, WHETHER ECONOMIC, SCIENTIFIC,
POLITICAL, RELIGIOUS OR ANY OTHER.  (FN16) 

I WOULD THEREFORE HOLD THAT SEC. 2, ELEVENTH OF THE RAILWAY LABOR
ACT, IN AUTHORIZING APPLICATION OF THE UNION-SHOP CONTRACT TO THE NAMED
PROTESTING EMPLOYEES WHO ARE APPELLEES HERE, VIOLATES THE FREEDOM OF
SPEECH GUARANTEE OF THE FIRST AMENDMENT. 

      IV. 

THE REMEDY: 

THE GEORGIA COURT ENJOINED THE UNIONS AND THE RAILROADS FROM CERTAIN
FUTURE ACTIVITIES UNDER THE CONTRACT AND ALSO REQUIRED REPAYMENT OF
DUES PAID BY THREE EMPLOYEES WHO HAD PROTESTED USE OF UNION FUNDS TO
SUPPORT CANDIDATES OR ADVOCATE VIEWS THE PROTESTING EMPLOYEES WERE
AGAINST. 

I AM NOT SO SURE AS THE COURT THAT THE INJUNCTION BARS "THE
COLLECTION OF ALL FUNDS FROM ANYONE WHO CAN SHOW THAT HE IS OPPOSED TO
THE EXPENDITURE OF ANY OF HIS MONEY FOR POLITICAL PURPOSES WHICH HE
DISAPPROVES."  SO CONSTRUED THE INJUNCTION WOULD TAKE AWAY THE FIRST
AMENDMENT RIGHT OF EMPLOYEES TO CONTRIBUTE THEIR MONEY VOLUNTARILY TO A
COLLECTIVE FUND TO BE USED TO SUPPORT AND OPPOSE CANDIDATES AND CAUSES
EVEN THOUGH INDIVIDUAL CONTRIBUTORS MIGHT DISAGREE WITH PARTICULAR
CHOICES OF THE GROUP.  SO FAR AS IT MAY BE AMBIGUOUS IN THIS RESPECT, I
THINK THE INJUNCTION SHOULD BE MODIFIED TO MAKE SURE THAT IT DOES NOT
INTERFERE WITH THE VALUABLE RIGHTS OF CITIZENS TO MAKE THEIR INDIVIDUAL
VOICES HEARD THROUGH VOLUNTARY COLLECTIVE ACTION. 

FOR MUCH THE SAME BASIC REASONS I THINK THE INJUNCTION IS TOO BROAD
IN THAT IT RUNS NOT ONLY IN FAVOR OF THE SIX PROTESTING EMPLOYEES BUT
ALSO IN FAVOR OF THE "CLASS THEY REPRESENT."  NO ONE OF THAT "CLASS" IS
SHOWN TO HAVE PROTESTED AT ALL.  THE STATE SUPREME COURT NEVERTHELESS
REJECTED THE UNIONS' CONTENTION THAT THE SO-CALLED CLASS WAS SO
INDEFINITE, AND ITS MEMBERS SO LACKING IN COMMON, IDENTIFIABLE
INTERESTS AND MENTAL ATTITUDES, THAT A DECREE PURPORTING TO BIND ALL OF
THEM, THE RAILROADS, THE INDIVIDUAL DEFENDANTS AND THE UNIONS, WOULD
NOT COMPORT WITH THE DUE PROCESS REQUIREMENTS OF THE FIFTH AND
FOURTEENTH AMENDMENTS.  FOR REASONS TO BE STATED, I AGREE WITH THIS
CONTENTION OF THE UNIONS AND CONSEQUENTLY WOULD HOLD THAT THE JUDGMENT
HERE CANNOT STAND INSOFAR AS IT PURPORTS FINALLY TO ADJUDICATE RIGHTS
AS BETWEEN THE PARTY DEFENDANTS AND RAILROAD EMPLOYEES WHO WERE NEITHER
NAMED PARTY PLAINTIFFS NOR INTERVENORS IN THE SUIT. 

THE TRIAL COURT DEFINED THE "CLASS" AS COMPOSED OF "ALL NON-OPERATING
EMPLOYEES OF THE RAILROAD DEFENDANTS AFFECTED BY, AND OPPOSED TO, THE
...  UNION SHOP AGREEMENTS, WHO ALSO ARE OPPOSED TO THE COLLECTION AND
USE OF PERIODIC DUES, FEES AND ASSESSMENTS FOR SUPPORT OF IDEOLOGICAL
AND POLITICAL DOCTRINES AND CANDIDATES AND LEGISLATIVE PROGRAMS  ...
."  (FN17)  AS APPLIED TO THE FACTS HERE, THIS CLASS, AS DEFINED, COULD
INCLUDE EMPLOYEES NOT ONLY FROM GEORGIA, BUT ALSO FROM FLORIDA,
ALABAMA, NORTH CAROLINA, SOUTH CAROLINA, TENNESSEE, LOUISIANA,
ILLINOIS, VIRGINIA, OHIO, INDIANA, MISSOURI, MISSISSIPPI, KENTUCKY AND
THE DISTRICT OF COLUMBIA.  GENUINE CLASS ACTIONS RESULT IN BINDING
JUDGMENTS EITHER FOR OR AGAINST EACH MEMBER OF THE CLASS.  (FN18)
OBVIOUSLY, TO MAKE A JUDGMENT BINDING, THE PARTIES FOR OR AGAINST WHOM
IT IS TO OPERATE MUST BE IDENTIFIABLE WHEN THE JUDGMENT IS RENDERED. 
THAT WOULD NOT BE POSSIBLE HERE SINCE THE ONLY EMPLOYEES INCLUDED IN
THE CLASS WOULD BE THOSE WHO PERSONALLY OPPOSE THE VIEWS THEY ALLEGE
THE UNION IS USING THEIR DUES TO PROMOTE.  THIS WOULD MAKE THE "CLASS"
DEPEND ON THE VIEWS ENTERTAINED BY EACH MEMBER, VIEWS WHICH MAY CHANGE
FROM DAY TO DAY OR YEAR TO YEAR.  UNDER THESE CIRCUMSTANCES, WHEN THIS
DECREE WAS RENDERED NEITHER THE COURT NOR THE ADVERSE PARTIES NOR
ANYONE ELSE COULD KNOW, WITH CERTAINTY, TO WHAT INDIVIDUALS THE UNIONS
OWED A DUTY UNDER THE DECREE.  IN HANSBERRY V. LEE, 311 U.S. 32, 44,
THIS COURT POINTED OUT THE INSUPERABLE OBSTACLES IN ATTEMPTING TO TREAT
AS MEMBERS OF THE SAME CLASS PARTIES TO A CONTRACT SUCH AS THE ONE
HERE, SOME OF WHOM MIGHT PREFER TO HAVE THE CONTRACT ENFORCED AND SOME
OF WHOM MIGHT NOT.  NOTICE TO PERSONS WHOSE RIGHTS ARE TO BE
ADJUDICATED IS TOO IMPORTANT AN ELEMENT OF OUR SYSTEM OF JUSTICE TO
PERMIT A HOLDING THAT THIS GEORGIA ACTION HAS FINALLY DETERMINED THE
ISSUES FOR ALL THE UNIDENTIFIABLE MEMBERS OF THIS "CLASS" OF PLAINTIFFS
SPREAD TERRITORIALLY ALL THE WAY FROM FLORIDA TO ILLINOIS AND FROM THE
DISTRICT OF COLUMBIA TO MISSOURI.  AFTER ALL THE CLASS SUIT DOCTRINE IS
ONLY A NARROW JUDICIALLY CREATED EXCEPTION TO THE RULE THAT A CASE OR
CONTROVERSY INVOLVES LITIGANTS WHO HAVE BEEN DULY NOTIFIED AND GIVEN AN
OPPORTUNITY TO BE PRESENT IN COURT EITHER IN PERSON OR BY COUNSEL. 
(FN19)  I WOULD HOLD THAT THERE WAS NO KNOWN COMMON INTEREST AMONG THE
MEMBERS OF THE DESCRIBED CLASS HERE WHICH JUSTIFIED THIS CLASS ACTION. 
FROM THE VERY NATURE OF THE RIGHTS ASSERTED, WHICH DEPENDED ON THE
UNKNOWN, PERHAPS FLUCTUATING MENTAL ATTITUDES OF EMPLOYEES, THE RIGHTS
OF EACH EMPLOYEE WERE THE BASIS FOR SEPARABLE CLAIMS, IN WHICH THE
RELIEF FOR EACH MIGHT VARY AS IT DID HERE AS TO THE AMOUNT OF DAMAGES
AWARDED.  UNDER THESE CIRCUMSTANCES THE CLASS JUDGMENT SHOULD NOT
STAND. 

THE DECREE, MODIFIED TO ELIMINATE ITS CLASS ASPECT, DOES NOT
UNCONDITIONALLY FORBID THE APPLICATION OF THE CONTRACT TO ALL PEOPLE
UNDER ALL CIRCUMSTANCES, AS DID THE ONE WE STRUCK DOWN IN THE HANSON
CASE.  THE DECREE SO MODIFIED WOULD SIMPLY FORBID USE OF THE UNION-SHOP
CONTRACT TO BAR EMPLOYMENT OF THE SIX PROTESTING EMPLOYEES SO LONG AS
THE UNIONS DO NOT DISCONTINUE THE PRACTICE OF SPENDING UNION FUNDS TO
SUPPORT ANY CAUSES OR DOCTRINES, POLITICAL, ECONOMIC OR OTHER, OVER THE
EXPRESSED OBJECTION OF THE SIX PARTICULAR EMPLOYEES.  OTHER EMPLOYEES
WHO HAVE NOT PROTESTED ARE OF COURSE IN THE ENTIRELY DIFFERENT POSITION
OF VOLUNTARY OR ACQUIESCING DUES PAYERS, WHICH THEY HAVE EVERY RIGHT TO
BE, AND SINCE THEY HAVE ASKED FOR NO RELIEF THE DECREE IN THIS CASE
SHOULD NOT AFFECT THEM.  THUS MODIFIED I THINK THE RELIEF AFFORDED BY
THE DECREE IS JUSTIFIED. 

THE DECREE REQUIRES THE UNION TO REFUND DUES, FEES AND ASSESSMENTS
PAID UNDER PROTEST BY THREE OF THE COMPLAINING EMPLOYEES AND EXEMPTS
THE SIX COMPLAINING EMPLOYEES FROM THE PAYMENT OF ANY UNION DUES, FEES
OR ASSESSMENTS SO LONG AS FUNDS SO RECEIVED ARE USED BY THE UNION TO
PROMOTE CAUSES THEY ARE AGAINST.  THE STATE COURT FOUND THAT THESE
PAYMENTS HAD BEEN AND WOULD BE MADE BY THESE EMPLOYEES ONLY BECAUSE
THEY HAD BEEN COMPELLED TO JOIN THE UNION TO SAVE THEIR JOBS, DESPITE
THEIR OBJECTIONS TO PAYING THE UNION SO LONG AS IT USED ITS FUNDS FOR
CANDIDATES, PARTIES AND IDEOLOGIES CONTRARY TO THESE EMPLOYEES'
WISHES.  THE COURT DOES NOT CHALLENGE THIS FINDING BUT NEVERTHELESS
HOLDS THAT RELIEVING PROTESTING WORKERS OF ALL PAYMENT OF DUES WOULD
SOMEHOW INTERFERE WITH THE UNION'S STATUTORY DUTY TO ACT AS A
BARGAINING AGENT.  IN THE FIRST PLACE, THIS WOULD INTERFERE WITH THE
UNION'S ACTIVITIES ONLY TO THE EXTENT THAT IT BARS COMPULSION OF DUES
PAYMENTS FROM PROTESTING WORKERS TO BE USED IN SOME UNKNOWN PART FOR
UNCONSTITUTIONAL PURPOSES, AND I THINK IT PERFECTLY PROPER TO HOLD THAT
SUCH PAYMENTS CANNOT BE COMPELLED.  FURTHERMORE, I THINK THE REMEDY
SUGGESTED BY THE COURT WILL WORK A FAR GREATER INTERFERENCE WITH THE
UNION'S BARGAINING ACTIVITIES BECAUSE IT WILL IMPOSE MUCH GREATER TRIAL
AND ACCOUNTING BURDENS ON BOTH UNIONS AND WORKERS.  THE COURT'S REMEDY
IS TO GIVE THE WRONGED EMPLOYEES A RIGHT TO A REFUND LIMITED EITHER TO
"THE PROPORTION OF THE UNION'S TOTAL EXPENDITURES MADE FOR SUCH
POLITICAL ACTIVITIES" OR TO THE "PROPORTION  ...  OF EXPENDITURES FOR
POLITICAL PURPOSES WHICH HE HAD ADVISED THE UNION HE DISAPPROVED."  IT
MAY BE THAT COURTS AND LAWYERS WITH SUFFICIENT SKILL IN ACCOUNTING,
ALGEBRA, GEOMETRY, TRIGONOMETRY AND CALCULUS WILL BE ABLE TO EXTRACT
THE PROPER MICROSCOPIC ANSWER FROM THE VOLUMINOUS AND COMPLEX
ACCOUNTING RECORDS OF THE LOCAL, NATIONAL AND INTERNATIONAL UNIONS
INVOLVED.  IT SEEMS TO ME, HOWEVER, THAT WHILE THE COURT'S REMEDY MAY
PROVE VERY LUCRATIVE TO SPECIAL MASTERS, ACCOUNTANTS AND LAWYERS, THIS
FORMULA, WITH ITS ATTENDANT TRIAL BURDENS, PROMISES LITTLE HOPE FOR
FINANCIAL RECOMPENSE TO THE INDIVIDUAL WORKERS WHOSE FIRST AMENDMENT
FREEDOMS HAVE BEEN FLAGRANTLY VIOLATED.  UNDOUBTEDLY, AT THE CONCLUSION
OF THIS LONG EXPLORATION OF ACCOUNTING INTRICACIES, MANY COURTS COULD
WITH PLAUSIBILITY DISMISS THE WORKERS' CLAIMS AS DE MINIMIS WHEN
MEASURED ONLY IN DOLLARS AND CENTS. 

I CANNOT AGREE TO TREAT SO LIGHTLY THE VALUE OF A MAN'S
CONSTITUTIONAL RIGHT TO BE WHOLLY FREE FROM ANY SORT OF GOVERNMENTAL
COMPULSION IN THE EXPRESSION OF OPINIONS.  IT SHOULD NOT BE FORGOTTEN
THAT MANY MEN HAVE LEFT THEIR NATIVE LANDS, LANGUISHED IN PRISON, AND
EVEN LOST THEIR LIVES, RATHER THAN GIVE SUPPORT TO IDEAS THEY WERE
CONSCIENTIOUSLY AGAINST.  THE THREE WORKERS WHO PAID UNDER PROTEST HERE
WERE FORCED UNDER AUTHORITY OF A FEDERAL STATUTE TO PAY ALL CURRENT
DUES OR LOSE THEIR JOBS.  THEY SHOULD GET BACK ALL THEY PAID WITH
INTEREST. 

UNIONS COMPOSED OF A VOLUNTARY MEMBERSHIP, LIKE ALL OTHER VOLUNTARY
GROUPS, SHOULD BE FREE IN THIS COUNTRY TO FIGHT IN THE PUBLIC FORUM TO
ADVANCE THEIR OWN CAUSES, TO PROMOTE THEIR CHOICE OF CANDIDATES AND
PARTIES AND TO WORK FOR THE DOCTRINES OR THE LAWS THEY FAVOR.  BUT TO
THE EXTENT THAT GOVERNMENT STEPS IN TO FORCE PEOPLE TO HELP ESPOUSE THE
PARTICULAR CAUSES OF A GROUP, THAT GROUP - WHETHER COMPOSED OF RAILROAD
WORKERS OR LAWYERS - LOSES ITS STATUS AS A VOLUNTARY GROUP.  THE REASON
OUR CONSTITUTION ENDOWED INDIVIDUALS WITH FREEDOM TO THINK AND SPEAK
AND ADVOCATE WAS TO FREE PEOPLE FROM THE BLIGHTING EFFECT OF EITHER A
PARTIAL OR A COMPLETE GOVERNMENTAL MONOPOLY OF IDEAS.  LABOR UNIONS
HAVE BEEN PECULIAR BENEFICIARIES OF THAT SALUTARY CONSTITUTIONAL
PRINCIPLE, AND LAWYERS, I THINK, ARE CHARGED WITH A PECULIAR
RESPONSIBILITY TO PRESERVE AND PROTECT THIS PRINCIPLE OF CONSTITUTIONAL
FREEDOM, EVEN FOR THEMSELVES.  A VIOLATION OF IT, HOWEVER SMALL, IS, IN
MY JUDGMENT, PROHIBITED BY THE FIRST AMENDMENT AND SHOULD BE STOPPED
DEAD IN ITS TRACKS ON ITS FIRST APPEARANCE.  WITH SO VITAL A PRINCIPLE
AT STAKE, I CANNOT AGREE TO THE IMPOSITION OF PARSIMONIOUS LIMITATIONS
ON THE KIND OF DECREE THE COURTS BELOW CAN FASHION IN THEIR EFFORTS TO
AFFORD EFFECTIVE PROTECTION TO THESE PRICELESS CONSTITUTIONAL RIGHTS. 

I WOULD AFFIRM THE JUDGMENT OF THE GEORGIA SUPREME COURT, WITH THE
MODIFICATIONS I HAVE SUGGESTED. 

FN1  ALTHOUGH THERE WERE MORE COMPLAINANTS WHEN THE SUIT WAS BROUGHT,
THERE WERE ONLY SIX WHEN THE TRIAL WAS COMPLETED. 

FN2  64 STAT. 1238, 45 U.S.C. SEC. 152, ELEVENTH. 

FN3  IN ACCORDANCE WITH THE REQUIREMENTS OF THE STATUTE, THE
AGREEMENT PROVIDED, IN LANGUAGE ALMOST IDENTICAL TO THAT OF THE
STATUTE, THAT NO EMPLOYEE WOULD BE REQUIRED TO BECOME OR REMAIN A
MEMBER OF THE UNION "IF SUCH MEMBERSHIP IS NOT AVAILABLE TO SUCH
EMPLOYE UPON THE SAME TERMS AND CONDITIONS AS ARE GENERALLY APPLICABLE
TO ANY OTHER MEMBER, OR IF THE MEMBERSHIP OF SUCH EMPLOYE IS DENIED OR
TERMINATED FOR ANY REASON OTHER THAN THE FAILURE OF THE EMPLOYE TO
TENDER THE PERIODIC DUES, INITIATION FEES, AND ASSESSMENTS (NOT
INCLUDING FINES AND PENALTIES) UNIFORMLY REQUIRED AS A CONDITION OF
ACQUIRING OR RETAINING MEMBERSHIP." 

FN4  LOOPER V. GEORGIA SOUTHERN & F.R. CO., 213 GA. 279, 284, 99
S.E.2D 101, 104-105. 

FN5  THE TRIAL COURT ALSO HELD THAT THE SECTION AS ENFORCED VIOLATED
THE FIFTH, NINTH AND TENTH AMENDMENTS.  MY VIEW AS TO THE FIRST
AMENDMENT MAKES IT UNNECESSARY FOR ME TO CONSIDER THE CLAIMS UNDER THE
OTHER AMENDMENTS. 

FN6  215 GA. 27, 46, 108 S.E.2D 796, 808. 

FN7  CLAY V. SUN INSURANCE OFFICE, 363 U.S. 207, 213 (DISSENTING
OPINION). 

FN8  THE SPECIFIC PROBLEM OF USE OF THE COMPELLED DUES FOR POLITICAL
PURPOSES WAS RAISED DURING BOTH THE HEARINGS AND THE FLOOR DEBATES. 
HEARINGS ON S. 3295, SUBCOMMITTEE OF THE SENATE COMMITTEE ON LABOR AND
PUBLIC WELFARE, 81ST CONG., 2D SESS., PP. 316-317; HEARINGS ON H.R.
7789, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 81ST CONG.,
2D SESS., P. 160; 96 CONG. REC. 17049-17050.    AGAIN, IN 1958, WHEN
SENATOR POTTER INTRODUCED HIS AMENDMENT TO LIMIT THE USE OF COMPELLED
DUES TO COLLECTIVE BARGAINING AND RELATED PURPOSES, HE POINTED OUT ON
THE FLOOR OF THE SENATE THAT "THE FACT IS THAT UNDER CURRENT PRACTICES
IN SOME OF OUR LABOR ORGANIZATIONS, DISSENTERS ARE BEING DENIED THE
FREEDOM NOT TO SUPPORT FINANCIALLY POLITICAL OR IDEOLOGICAL OR OTHER
ACTIVITIES WHICH THEY MAY OPPOSE."  104 CONG. REC. 11214.  IT COULD
HARDLY BE CONTENDED THAT THE DEBATE ON HIS PROPOSAL, WHICH WAS
DEFEATED, INDICATED ANY GENERALLY HELD BELIEF THAT SUCH USE OF
COMPELLED DUES WAS ALREADY PROSCRIBED UNDER SEC. 2, ELEVENTH OR ANY
OTHER EXISTING STATUTE.  SEE 104 CONG. REC. 11214-11224, 11330-11347. 
FN9  351 U.S., AT 235, 236, 238.  SEE ALSO ID., AT 242 (CONCURRING
OPINION). 

FN10  SEE DEMILLE V. AMERICAN FEDERATION OF RADIO ARTISTS, 175 P.2D
851, 854 (CAL. DIST.  CT. APP.), AFF'D, 31 CAL. 2D 139, 147-149, 187
P.2D 769, 775-776, CERT. DENIED, 333 U.S. 876. 

FN11  UNITED STATES V. C.I.O., 335 U.S. 106, 144 (CONCURRING
OPINION). 

FN12  SEE, E.G., GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490. 

FN13  WE HELD IN THE HANSON CASE, WITH RESPECT TO THIS VERY SAME SEC.
2, ELEVENTH, THAT EVEN THOUGH THE STATUTORY PROVISION AUTHORIZING UNION
SHOPS IS ONLY PERMISSIVE, THAT PROVISION, "WHICH EXPRESSLY DECLARES
THAT STATE LAW IS SUPERSEDED," IS "THE SOURCE OF THE POWER AND
AUTHORITY BY WHICH ANY PRIVATE RIGHTS ARE LOST OR SACRIFICED" AND
THEREFORE IS "THE GOVERNMENTAL ACTION ON WHICH THE CONSTITUTION
OPERATES."  351 U.S., AT 232.  EVEN THOUGH SEC. 2, ELEVENTH IS
PERMISSIVE IN FORM, CONGRESS WAS FULLY AWARE WHEN ENACTING IT THAT THE
ALMOST CERTAIN RESULT WOULD BE THE ESTABLISHMENT OF UNION SHOPS
THROUGHOUT THE RAILROAD INDUSTRY.  WITNESS AFTER WITNESS SO TESTIFIED
DURING THE HEARINGS ON THE BILL, AND THIS TESTIMONY WAS NEVER SERIOUSLY
DISPUTED.  SEE HEARINGS ON S. 3295, SUPRA, NOTE 8, PASSIM; HEARINGS ON
H.R. 7789, SUPRA, NOTE 8, PASSIM. 

FN14  1 STOKES, CHURCH AND STATE IN THE UNITED STATES, 391 (1950). 

FN15  BRANT, JAMES MADISON:  THE NATIONALIST, 354 (1948). 

FN16  CF. EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 16. 

FN17  THE TRIAL COURT WENT ON TO INCLUDE IN THE CLASS OTHER EMPLOYEES
WHO OPPOSED THE USE OF UNION FUNDS FOR ANY PURPOSES "OTHER THAN THE
NEGOTIATION, MAINTENANCE AND ADMINISTRATION OF AGREEMENTS CONCERNING
RATES OF PAY, RULES AND WORKING CONDITIONS, OR WAGES, HOURS, TERMS OR
OTHER CONDITIONS OF EMPLOYMENT OR THE HANDLING OF DISPUTES RELATING TO
THE ABOVE."  I READ THE TWO OPINIONS OF THE GEORGIA SUPREME COURT,
HOWEVER, AS LIMITING ITS HOLDING TO THE PRECISE QUESTION OF WHETHER THE
FIRST AMENDMENT IS VIOLATED BY THE COMPULSORY LEGAL REQUIREMENT THAT
EMPLOYEES PAY DUES AND OTHER FEES WHICH ARE PARTLY USED TO PROPAGATE
POLITICAL AND IDEOLOGICAL VIEWS OBNOXIOUS TO THE EMPLOYEES.  I
CONSEQUENTLY DO NOT REACH OR CONSIDER THE DIFFERENT QUESTION LURKING IN
THIS PART OF THE TRIAL COURT'S DEFINITION OF CLASS. 

FN18  SEE, E.G., SUPREME TRIBE OF BEN-HUR V. CAUBLE, 255 U.S. 356,
367. 

FN19  CF. HANSBERRY V. LEE, 311 U.S., AT 41-42. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

APPELLANT UNIONS WERE THE COLLECTIVE BARGAINING REPRESENTATIVES OF
THE "NON-OPERATING" EMPLOYEES OF THE SOUTHERN RAILWAY.  APPELLEES, SIX
INDIVIDUAL RAILWAY EMPLOYEES, COMMENCED THIS ACTION IN THE SUPERIOR
COURT OF BIBB COUNTY, GEORGIA, SEEKING A DECLARATION OF INVALIDITY AND
AN INJUNCTION TO PREVENT ENFORCEMENT OF A UNION-SHOP AGREEMENT, MADE
UNDER THE AUTHORITY OF SEC. 2, ELEVENTH OF THE RAILWAY LABOR ACT, AS
AMENDED IN 1951, ON THE GROUND THAT THE CONTRACT WAS IN VIOLATION OF
GEORGIA LAW AND RIGHTS SECURED BY THE FIRST, FIFTH, NINTH, AND TENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION.  THE SUIT WAS BROUGHT AS
A CLASS ACTION ON BEHALF OF "ALL THOSE EMPLOYEES OR FORMER EMPLOYEES OF
THE RAILROAD DEFENDANTS AFFECTED BY AND OPPOSED TO THE UNION-SHOP
AGREEMENT WHO ARE ALSO OPPOSED TO THE USE OF THE PERIODIC DUES, FEES
AND ASSESSMENTS WHICH THEY HAVE BEEN, ARE AND WILL BE REQUIRED TO PAY
TO SUPPORT IDEOLOGICAL AND POLITICAL DOCTRINES AND CANDIDATES AND
LEGISLATIVE PROGRAMS  ...  ."  THE MONTHLY DUES RANGED FROM $2.25 TO
$3.  THE PETITION ALLEGED THAT THE PLAINTIFFS OPPOSED AND WERE
UNWILLING VOLUNTARILY TO SUPPORT THE "IDEOLOGICAL AND POLITICAL
DOCTRINES AND CANDIDATES" FOR WHICH UNION DUES AND ASSESSMENTS WERE
COLLECTED UNDER THE UNION-SHOP AGREEMENT AND WOULD BE USED "IN
SUBSTANTIAL PART  ...  TO SUPPORT." 

THE GEORGIA TRIAL COURT'S DECISION DISMISSING THE COMPLAINT FOR
FAILURE TO STATE A CAUSE OF ACTION WAS REVERSED BY THE SUPREME COURT OF
GEORGIA.  213 GA. 279, 99 S.E.2D 101.  UPON REMAND, THE PARTIES
STIPULATED THE ABOVE ALLEGATIONS, AND THE PLAINTIFFS OFFERED PROOF OF
THE AMOUNT OF UNION FUNDS WHICH WENT TO THE LEGISLATIVE, POLITICAL, AND
EDUCATIONAL DEPARTMENTS OF THE UNIONS AND THE CONTROLLING ORGANS OF THE
AFL-CIO.  THE TRIAL COURT MADE, INTER ALIA, THE FOLLOWING FINDINGS:
THE UNIONS' FUNDS HAD BEEN EXPENDED IN "SUBSTANTIAL AMOUNTS" TO PROMOTE
POLITICAL DOCTRINES AND LEGISLATIVE PROGRAMS WHICH THE PLAINTIFFS
OPPOSED; THESE FUNDS HAD BEEN USED IN "SUBSTANTIAL AMOUNTS TO IMPOSE
UPON PLAINTIFFS  ...  CONFORMITY TO THOSE DOCTRINES"; SUCH USE OF FUNDS
WAS "NOT REASONABLY NECESSARY TO COLLECTIVE BARGAINING OR TO
MAINTAINING THE EXISTENCE AND POSITION OF SAID UNION DEFENDANTS AS
EFFECTIVE BARGAINING AGENTS."  THE NEED OF UNIONS TO ENGAGE IN WHAT ARE
LOOSELY DESCRIBED AS POLITICAL ACTIVITIES AS MEANS OF PROMOTING - IF
NOT TO ACHIEVING - THE PURPOSES OF THEIR EXISTENCE, THE EXTENT TO WHICH
THIS PRACTICE HAS BECOME AN ESSENTIAL PART OF THE AMERICAN LABOR
MOVEMENT AND MORE PARTICULARLY OF RAILROAD LABOR UNIONS, THE RELATION
OF THESE MEANS TO THE ENDS OF COLLECTIVE BARGAINING, WERE MATTERS NOT
CANVASSED AT TRIAL NOR JUDICIALLY NOTICED.  NOR WAS IT CLAIMED THAT THE
SLIGHTEST BARRIER HAD BEEN INTERPOSED AGAINST THE FULLEST EXERCISE BY
THE PLAINTIFFS OF THEIR FREEDOM OF SPEECH IN ANY FORM OR IN ANY FORUM. 
SINCE THESE MATTERS WERE NOT CANVASSED, NO FINDINGS UPON THEM WERE
MADE. 

THE TRIAL COURT PERMANENTLY ENJOINED ENFORCEMENT OF THE AGREEMENT SO
LONG AS THE UNIONS CONTINUED TO ENGAGE "IN THE IMPROPER AND UNLAWFUL
ACTIVITIES DESCRIBED."  IT DECLARED SEC. 2, ELEVENTH OF THE RAILWAY
LABOR ACT UNCONSTITUTIONAL INSOFAR AS IT PERMITTED THE EXACTION OF DUES
UTILIZED IN PROMOTING SO-CALLED POLITICAL ACTIVITIES FROM UNION MEMBERS
DISAPPROVING SUCH EXPENDITURES.  THE UNIONS WERE ALSO ORDERED TO REPAY
THE DUES AND ASSESSMENTS PREVIOUSLY PAID BY THE INDIVIDUAL PLAINTIFFS. 
THE GEORGIA SUPREME COURT AFFIRMED THIS JUDGMENT, 215 GA. 27, 108
S.E.2D 796, AND ON APPEAL TO THIS COURT, UNDER 28 U.S.C. SEC. 1257(1),
PROBABLE JURISDICTION WAS NOTED.  361 U.S. 807. 

I COMPLETELY DEFER TO THE GUIDING PRINCIPLE THAT THIS COURT WILL
ABSTAIN FROM ENTERTAINING A SERIOUS CONSTITUTIONAL QUESTION WHEN A
STATUTE MAY FAIRLY BE CONSTRUED SO AS TO AVOID THE ISSUE, BUT AM UNABLE
TO ACCEPT THE RESTRICTIVE INTERPRETATION THAT THE COURT GIVES TO SEC.
2, ELEVENTH OF THE RAILWAY LABOR ACT.  AFTER QUOTING THE RELEVANT CANON
FOR CONSTITUTIONAL ADJUDICATION FROM UNITED STATES V. JIN FUEY MOY, 241
U.S. 394, 401, (FN1) MR. JUSTICE CARDOZO FOR THE WHOLE COURT ENUNCIATED
THE COMPLEMENTARY PRINCIPLE: 

"BUT AVOIDANCE OF A DIFFICULTY WILL NOT BE PRESSED TO THE POINT OF
DISINGENUOUS EVASION.  HERE THE INTENTION OF THE CONGRESS IS REVEALED
TOO DISTINCTLY TO PERMIT US TO IGNORE IT BECAUSE OF MERE MISGIVINGS AS
TO POWER.  THE PROBLEM MUST BE FACED AND ANSWERED."  MOORE ICE CREAM
CO. V. ROSE, 289 U.S. 373, 379. 

THE COURT-DEVISED PRECEPT AGAINST AVOIDABLE CONFLICT WITH CONGRESS
THROUGH UNNECESSARY CONSTITUTIONAL ADJUDICATION IS NOT A REQUIREMENT TO
DISTORT AN ENACTMENT IN ORDER TO ESCAPE SUCH ADJUDICATION.  RESPECT FOR
THE DOCTRINE DEMANDS AND ONLY PERMITS THAT WE EXTRACT AN INTERPRETATION
WHICH SHIES OFF CONSTITUTIONAL CONTROVERSY, PROVIDED SUCH
INTERPRETATION IS CONSONANT WITH A FAIR READING OF A STATUTE. 

AND SO THE QUESTION BEFORE US IS WHETHER SEC. 2, ELEVENTH OF THE
RAILWAY LABOR ACT CAN UNTORTURINGLY BE READ TO BAR ACTIVITIES OF
RAILWAY UNIONS, WHICH HAVE BARGAINED IN ACCORDANCE WITH FEDERAL LAW FOR
A UNION SHOP, WHEREBY THEY ARE FORBIDDEN TO SPEND UNION DUES FOR
PURPOSES THAT HAVE UNIFORMLY AND EXTENSIVELY BEEN SO LONG PURSUED AS TO
HAVE BECOME COMMONPLACE, SETTLED, CONVENTIONAL TRADE-UNION PRACTICES. 
NO CONSIDERATION RELEVANT TO CONSTRUCTION SUSTAINS SUCH A RESTRICTIVE
READING. 

THE STATUTORY PROVISION CANNOT BE MEANINGFULLY CONSTRUED EXCEPT
AGAINST THE BACKGROUND AND PRESUPPOSITION OF WHAT IS LOOSELY CALLED
POLITICAL ACTIVITY OF AMERICAN TRADE UNIONS IN GENERAL AND RAILROAD
UNIONS IN PARTICULAR - ACTIVITY INDISSOLUBLY RELATING TO THE IMMEDIATE
ECONOMIC AND SOCIAL CONCERNS THAT ARE THE RAISON D'ETRE OF UNIONS.  IT
WOULD BE PEDANTIC HEAVILY TO DOCUMENT THIS FAMILIAR TRUTH OF INDUSTRIAL
HISTORY AND COMMONPLACE OF TRADE-UNION LIFE.  TO WRITE THE HISTORY OF
THE BROTHERHOODS, THE UNITED MINE WORKERS, THE STEEL WORKERS, THE
AMALGAMATED CLOTHING WORKERS, THE INTERNATIONAL LADIES GARMENT WORKERS,
THE UNITED AUTO WORKERS, AND LEAVE OUT THEIR SO-CALLED POLITICAL
ACTIVITIES AND EXPENDITURES FOR THEM, WOULD BE SHEER MUTILATION. 
SUFFICE IT TO RECALL A FEW ILLUSTRATIVE MANIFESTATIONS.  THE AFL,
SURELY THE CONSERVATIVE LABOR GROUP, SPONSORED AS EARLY AS 1893 AN
EXTENSIVE PROGRAM OF POLITICAL DEMANDS CALLING FOR COMPULSORY
EDUCATION, AN EIGHT-HOUR DAY, EMPLOYER TORT LIABILITY, AND OTHER SOCIAL
REFORMS.  (FN2)  THE FIERCELY CONTESTED ADAMSON ACT OF 1916, SEE WILSON
V. NEW, 243 U.S. 332, WAS A DIRECT RESULT OF RAILWAY UNION PRESSURES
EXERTED UPON BOTH THE CONGRESS AND THE PRESIDENT.  (FN3)  MORE
SPECIFICALLY, THE WEEKLY PUBLICATION "LABOR" - AN EXPENDITURE UNDER
ATTACK IN THIS CASE - HAS SINCE 1919 BEEN THE ORGAN OF THE RAILROAD
BROTHERHOODS WHICH FINANCE IT.  ITS FILES THROUGH THE YEARS SHOW ITS
PREOCCUPATION WITH LEGISLATIVE MEASURES THAT TOUCH THE VITALS OF
LABOR'S INTERESTS AND WITH THE MEN AND PARTIES WHO EFFECTUATE THEM. 
THIS ASPECT - CALL IT THE POLITICAL SIDE - IS AS ORGANIC, AS INURED A
PART OF THE PHILOSOPHY AND PRACTICE OF RAILWAY UNIONS AS THEIR
IMMEDIATE BREAD-AND-BUTTER CONCERNS. 

VIEWED IN THIS LIGHT, THERE IS A TOTAL ABSENCE IN THE TEXT, THE
CONTEXT, THE HISTORY AND THE PURPOSE OF THE LEGISLATION UNDER REVIEW OF
ANY INDICATION THAT CONGRESS, IN AUTHORIZING UNION-SHOP AGREEMENTS,
ATTRIBUTED TO UNIONS AND RESTRICTED THEM TO AN ARTIFICIAL, NON
PREVALENT SCOPE OF ACTIVITIES IN THE EXPENDITURE OF THEIR FUNDS.  AN
INFERENCE THAT CONGRESS LEGISLATED REGARDING EXPENDITURE CONTROL IN
CONTRADICTION TO PREVAILING PRACTICES OUGHT TO BE BETTER FOUNDED THAN
ON COMPLETE SILENCE.  THE AIM OF THE 1951 LEGISLATION, CLEARLY STATED
IN THE CONGRESSIONAL REPORTS, WAS TO ELIMINATE "FREE RIDERS" IN THE
INDUSTRY (FN4) - TO MAKE POSSIBLE "THE SHARING OF THE BURDEN OF
MAINTENANCE BY ALL OF THE BENEFICIARIES OF UNION ACTIVITY."  (FN5)  TO
SUGGEST THAT THIS LANGUAGE COVERTLY MEANT TO ENCOMPASS ANY LESS THAN
THE MAINTENANCE OF THOSE ACTIVITIES NORMALLY ENGAGED IN BY UNIONS IS TO
WITHDRAW LIFE FROM LAW AND TO SAY THAT CONGRESS DEALT WITH
ARTIFICIALITIES AND NOT WITH RAILWAY UNIONS AS THEY WERE AND AS THEY
FUNCTIONED. 

THE HEARINGS AND DEBATES LEND NOT THE SLIGHTEST SUPPORT TO A
CONSTRUCTION OF THE AMENDMENT WHICH WOULD RESTRICT THE USES TO WHICH
UNION FUNDS HAD, AT THE TIME OF THE UNION-SHOP AMENDMENT, BEEN
CONVENTIONALLY PUT.  TO BE SURE, THE LEGISLATIVE RECORD DOES NOT SPELL
OUT THE OBVIOUS.  THE ABSENCE OF ANY SHOWING OF CONCERN ABOUT UNIONS'
EXPENDITURES IN "POLITICAL" AREAS - ESPECIALLY WHEN THE ISSUE WAS
BRIEFLY RAISED (FN6) - ONLY BUTTRESSES THE CONCLUSION THAT CONGRESS
INTENDED TO LEAVE UNIONS FREE TO DO THAT WHICH UNIONS HAD BEEN AND WERE
DOING.  IT IS SURELY FANCIFUL TO CONCLUDE THAT THIS VERBAL VACUITY
IMPLIES THAT CONGRESS MEANT ITS AMENDMENT TO BE READ AS PROVIDING THAT
MEMBERS OF THE UNION MAY RESTRICT THEIR DUES SOLELY FOR FINANCING THE
TECHNICAL PROCESS OF COLLECTIVE BARGAINING. 

THERE WERE SPECIFIC SAFEGUARDS PROTECTIVE OF MINORITY RIGHTS.  THESE
SAFEGUARDS WERE DIRECTED SOLELY TOWARD THE PROTECTION OF THOSE WHO
MIGHT OTHERWISE FIND THEMSELVES BARRED FROM UNION MEMBERSHIP - VIZ.,
NEGROES AND THOSE WHO HAD BEEN LONG-TIME OPPONENTS OF THE UNIONS.  THE
ONLY REFERENCE TO FREE SPEECH IN THE RECORD OF THE ENACTMENT WAS MADE
BY THE PRESIDENT OF THE NORFOLK & WESTERN RAILROAD COMPANY DURING THE
HEARINGS BEFORE THE HOUSE SUBCOMMITTEE.  HIS REMARKS WERE RELATED TO
RESTRICTIVE PROVISIONS IN SOME UNION CONSTITUTIONS WHICH SUPPRESSED THE
RIGHT OF A DISSATISFIED MEMBER TO VOICE HIS CRITICISM UPON PAIN OF
EXPULSION.  (FN7)  NO SUCH CLAIM IS REMOTELY BEFORE US.  (FN8)  THE
SOLE REASON FOR CLARIFYING THE PROVISO TO THE AMENDMENT SO THAT PAYMENT
OF DUES WAS EXPLICITLY DECLARED TO BE THE ONLY LEGITIMATE CONDITION OF
UNION MEMBERSHIP WAS THE CONTINUING FEAR OF LACK OF PROTECTION FOR
UNPOPULAR MINORITIES.  THERE IS NO MENTION OF POLITICAL EXPENDITURES IN
ANY OF THE REFERENCES.  FROM THIS WASTELAND OF MATERIAL IT IS STRANGE
TO FIND NOT ONLY THAT "A CONGRESSIONAL CONCERN OVER POSSIBLE
IMPINGEMENTS ON THE INTERESTS OF INDIVIDUAL DISSENTERS FROM UNION
POLICIES IS THEREFORE DISCERNIBLE," BUT SO DISCERNIBLE THAT A
CONSTRUCTION MUST BE PLACED UPON THE STATUTE THAT NEITHER ITS TERMS NOR
THE ACCUSTOMED HABITS OF UNION LIFE REMOTELY JUSTIFY. 

NONE OF THE PARTIES IN INTEREST AT ANY TIME SUGGESTED THE POSSIBILITY
THAT THE STATUTE BE CONSTRUED IN THE MANNER NOW SUGGESTED.  NEITHER THE
UNITED STATES, THE INDIVIDUAL DISSIDENT MEMBERS, THE RAILROAD UNIONS,
THE RAILROADS, THE AFL-CIO, THE RAILWAY LABOR EXECUTIVES' ASSOCIATION,
NOR ANY OTHER AMICUS CURIAE SUGGESTED THAT THE STATUTE COULD BE
EMASCULATED IN THE MANNER NOW PROPOSED.  OF COURSE WE ARE NOT CONFINED
BY THE ABSENCE OF SUCH A CLAIM, BUT IT IS SIGNIFICANT THAT A
CONSTRUCTION NOW FOUND TO BE REASONABLE NEVER OCCURRED TO THE LITIGANTS
IN THE TWO ARGUMENTS HERE.    I CANNOT ATTRIBUTE TO CONGRESS THAT SUB
SILENTIO IT MEANT TO BAR RAILWAY UNIONS UNDER A UNION-SHOP AGREEMENT
FROM EXPENDING THEIR FUNDS IN THEIR TRADITIONAL MANNER.  HOW EASY IT
WOULD HAVE BEEN TO GIVE AT LEAST A HINT THAT SUCH WAS ITS PURPOSE.  THE
CLAIM THAT THESE EXPENDITURES INFRINGE THE APPELLEES' CONSTITUTIONAL
RIGHTS UNDER THE FIRST AMENDMENT MUST THEREFORE BE FACED. 

IN RAILWAY EMPLOYES' DEPT. V. HANSON, 351 U.S. 225, THIS COURT HAD TO
PASS ON THE VALIDITY OF SEC. 2, ELEVENTH OF THE RAILWAY LABOR ACT,
WHICH PROVIDED THAT UNION-SHOP AGREEMENTS ENTERED INTO BETWEEN A
CARRIER AND A DULY DESIGNATED LABOR ORGANIZATION SHALL BE VALID
NOTWITHSTANDING ANY OTHER "STATUTE OR LAW OF THE UNITED STATES, OR
TERRITORY THEREOF, OR OF ANY STATE."  (FN9)  WE HELD THAT IN ITS
EXERCISE OF THE POWER TO REGULATE COMMERCE, "THE CHOICE BY THE CONGRESS
OF THE UNION SHOP AS A STABILIZING FORCE IN INDUSTRIAL DISPUTES SEEMS
TO US TO BE AN ALLOWABLE ONE," AND THAT THE PLAINTIFFS' CLAIMS UNDER
THE FIRST AND FIFTH AMENDMENTS WERE WITHOUT MERIT. 

THE RECORD BEFORE THE COURT IN HANSON CLEARLY INDICATED THAT DUES
WOULD BE USED TO FURTHER WHAT ARE NORMALLY DESCRIBED AS POLITICAL AND
LEGISLATIVE ENDS.  AND IT SURELY CAN BE SAID THAT THE COURT WAS NOT
IGNORANT OF A FACT THAT EVERYONE ELSE KNEW.  UNION CONSTITUTIONS WERE
IN EVIDENCE WHICH AUTHORIZED THE USE OF UNION FUNDS FOR POLITICAL
MAGAZINES, FOR SUPPORT OF LOBBYING GROUPS, AND FOR URGING UNION MEMBERS
TO VOTE FOR UNION-APPROVED CANDIDATES.  (FN10)  THE CONTENTION NOW
RAISED BY PLAINTIFFS WAS SUCCINCTLY STATED BY THE HANSON PLAINTIFFS IN
THEIR BRIEF.  (FN11)  WE INDICATED THAT WE WERE DECIDING THE MERITS OF
THE COMPLAINT ON ALL THE ALLEGATIONS AND PROOF BEFORE US.  "ON THE
PRESENT RECORD, THERE IS NO MORE AN INFRINGEMENT OR IMPAIRMENT OF FIRST
AMENDMENT RIGHTS THAN THERE WOULD BE IN THE CASE OF A LAWYER WHO BY
STATE LAW IS REQUIRED TO BE A MEMBER OF AN INTEGRATED BAR."  351 U.S.,
AT 238. 

ONE WOULD SUPPOSE THAT HANSON'S REASONING DISPOSED OF THE PRESENT
SUIT.  THE GEORGIA SUPREME COURT, HOWEVER, IN REVERSING THE INITIAL
DISMISSAL OF THE ACTION BY THE LOWER COURT, RELIED UPON THE FOLLOWING
RESERVATION IN OUR OPINION:  "IF THE EXACTION OF DUES, INITIATION FEES,
OR ASSESSMENTS IS USED AS A COVER FOR FORCING IDEOLOGICAL CONFORMITY OR
OTHER ACTION IN CONTRAVENTION OF THE FIRST AMENDMENT, THIS JUDGMENT
WILL NOT PREJUDICE THE DECISION IN THAT CASE."  351 U.S., AT 238.  THE
USE OF UNION DUES TO PROMOTE RELEVANT AND EFFECTIVE MEANS OF REALIZING
THE PURPOSES FOR WHICH UNIONS EXIST DOES NOT CONSTITUTE A UTILIZATION
OF DUES "AS A COVER FOR FORCING IDEOLOGICAL CONFORMITY" IN ANY FAIR
READING OF THOSE WORDS.  IT WILL COME AS STARTLING AND FANCIFUL NEWS TO
THE RAILROAD UNIONS AND THE WHOLE LABOR MOVEMENT THAT IN USING UNION
FUNDS FOR PROMOTING AND OPPOSING LEGISLATIVE MEASURES OF CONCERN TO
THEIR MEMBERS THEY WERE ENGAGED IN UNDER-COVER OPERATIONS.  "COVER"
IMPLIES A DISGUISE, SOME SHAM; "FORCING  ...  CONFORMITY" MEANS
COERCING AVOWAL OF A BELIEF NOT ENTERTAINED.  PLAINTIFFS HERE ARE IN NO
WAY SUBJECTED TO SUCH SUPPRESSION OF THEIR TRUE BELIEFS OR SPONSORSHIP
OF VIEWS THEY DO NOT HOLD.  NOR ARE THEY FORCED TO JOIN A SHAM
ORGANIZATION WHICH DOES NOT PARTICIPATE IN COLLECTIVE BARGAINING
FUNCTIONS, BUT ONLY SERVES AS A CONDUIT OF FUNDS FOR IDEOLOGICAL
PROPAGANDA.  A TOTALLY DIFFERENT PROBLEM THAN THE ONE BEFORE THE COURT
WOULD BE PRESENTED BY PROVISIONS OF UNION CONSTITUTIONS WHICH IN FACT
PROHIBITED MEMBERS FROM SPONSORING VIEWS WHICH THE UNION OPPOSED,
(FN12) OR WHICH ENABLED OFFICERS TO SPONSOR VIEWS NOT REPRESENTATIVE OF
THE UNION. 

NEVERTHELESS, WE UNANIMOUSLY HELD THAT THE PLAINTIFFS IN HANSON HAD
NOT BEEN DENIED ANY RIGHT PROTECTED BY THE FIRST AMENDMENT.  DESPITE
OUR HOLDING, THE GIST OF THE COMPLAINT HERE IS THAT THE EXPENDITURE OF
A PORTION OF MANDATORY FUNDS FOR POLITICAL OBJECTIVES DENIES FREE
SPEECH - THE RIGHT TO SPEAK OR TO REMAIN SILENT - TO MEMBERS WHO
OPPOSE, AGAINST THE CONSTITUTED AUTHORITY OF UNION DESIRES, THIS USE OF
THEIR UNION DUES.  NO ONE'S DESIRE OR POWER TO SPEAK HIS MIND IS
CHECKED OR CURBED.  THE INDIVIDUAL MEMBER MAY EXPRESS HIS VIEWS IN ANY
PUBLIC OR PRIVATE FORUM AS FREELY AS HE COULD BEFORE THE UNION
COLLECTED HIS DUES.  FEDERAL TAXES ALSO MAY DIMINISH THE VIGOR WITH
WHICH A CITIZEN CAN GIVE PARTISAN SUPPORT TO A POLITICAL BELIEF, BUT AS
YET NO ONE WOULD PLACE SUCH AN IMPEDIMENT TO MAKING ONE'S VIEWS
EFFECTIVE WITHIN THE REACH OF CONSTITUTIONALLY PROTECTED "FREE
SPEECH." 

THIS IS TOO FINE-SPUN A CLAIM FOR CONSTITUTIONAL RECOGNITION.  THE
FRAMERS OF THE BILL OF RIGHTS LIVED IN AN ERA WHEN OVERHANGING THREATS
TO CONDUCT DEEMED "SEDITIOUS" AND LETTRES DE CACHET WERE CURRENT
ISSUES.  THEIR CONCERN WAS IN PROTECTING THE RIGHT OF THE INDIVIDUAL
FREELY TO EXPRESS HIMSELF - ESPECIALLY HIS POLITICAL BELIEFS - IN A
PUBLIC FORUM, UNTRAMMELED BY FEAR OF PUNISHMENT OR OF GOVERNMENTAL
CENSURE. 

BUT WERE WE TO ASSUME, ARGUENDO, THAT THE PLAINTIFFS HAVE ALLEGED A
VALID CONSTITUTIONAL OBJECTION IF CONGRESS HAD SPECIFICALLY ORDERED THE
RESULT, WE MUST CONSIDER THE DIFFERENCE BETWEEN SUCH COMPULSION AND THE
ABSENCE OF COMPULSION WHEN CONGRESS ACTS AS PLATONICALLY AS IT DID, IN
A WHOLLY NON-COERCIVE WAY.  CONGRESS HAS NOT COMMANDED THAT THE
RAILROADS SHALL EMPLOY ONLY THOSE WORKERS WHO ARE MEMBERS OF AUTHORIZED
UNIONS.  CONGRESS HAS ONLY GIVEN LEAVE TO A BARGAINING REPRESENTATIVE,
DEMOCRATICALLY ELECTED BY A MAJORITY OF WORKERS, TO ENTER INTO A
PARTICULAR CONTRACTUAL PROVISION ARRIVED AT UNDER THE GIVE-AND-TAKE OF
DULY SAFEGUARDED BARGAINING PROCEDURES.  (THE STATUTE FORBIDS
DISTORTION OF THESE PROCEDURES AS, FOR INSTANCE, THROUGH RACIAL
DISCRIMINATION.  STEELE V. LOUISVILLE & NASHVILLE R. CO., 323 U.S.
192.)  CONGRESS ITSELF EMPHASIZED THIS VITAL DISTINCTION BETWEEN
AUTHORIZATION AND COMPULSION.  S. REP. NO. 2262, 81ST CONG., 2D SESS.
2.  AND THIS COURT IN HANSON NOTED THAT "THE UNION SHOP PROVISION OF
THE RAILWAY LABOR ACT IS ONLY PERMISSIVE.  CONGRESS HAS NOT  ...
REQUIRED CARRIERS AND EMPLOYEES TO ENTER INTO UNION SHOP AGREEMENTS." 
351 U.S., AT 231.  WHEN WE SPEAK OF THE GOVERNMENT "ACTING" IN
PERMITTING THE UNION SHOP, THE SCOPE AND FORCE OF WHAT CONGRESS HAS
DONE MUST BE HEEDED.  THERE IS NOT A TRACE OF COMPULSION INVOLVED - NO
EXERCISE OF RESTRICTION BY CONGRESS ON THE FREEDOM OF THE CARRIERS AND
THE UNIONS.  ON THE CONTRARY, CONGRESS EXPANDED THEIR FREEDOM OF
ACTION.  CONGRESS LIFTED LIMITATIONS UPON FREE ACTION BY PARTIES
BARGAINING AT ARM'S LENGTH.  (FN13) 

THE PLAINTIFFS HAVE NOT BEEN DEPRIVED OF THE RIGHT TO PARTICIPATE IN
DETERMINING UNION POLICIES OR TO ASSERT THEIR RESPECTIVE WEIGHT IN
DEFINING THE PURPOSES FOR WHICH UNION DUES MAY BE EXPENDED.  RESPONSIVE
TO THE ACTUALITIES OF OUR INDUSTRIAL SOCIETY, IN WHICH UNIONS AS SUCH
PLAY THE ROLE THAT THEY DO, THE LAW REGARDS A UNION AS A SELF
CONTAINED, LEGAL PERSONALITY EXERCISING RIGHTS AND SUBJECT TO
RESPONSIBILITIES WHOLLY DISTINCT FROM ITS INDIVIDUAL MEMBERS.  SEE
UNITED MINE WORKERS OF AMERICA V. CORONADO COAL CO., 259 U.S. 344.  IT
IS A COMMONPLACE OF ALL ORGANIZATIONS THAT A MINORITY OF A LEGALLY
RECOGNIZED GROUP MAY AT TIMES SEE AN ORGANIZATION'S FUNDS USED FOR
PROMOTION OF IDEAS OPPOSED BY THE MINORITY.  THE ANALOGIES ARE
NUMEROUS.  ON THE LARGEST SCALE, THE FEDERAL GOVERNMENT EXPENDS REVENUE
COLLECTED FROM INDIVIDUAL TAXPAYERS TO PROPAGANDIZE IDEAS WHICH MANY
TAXPAYERS OPPOSE.  OR, AS THIS COURT NOTED IN HANSON, MANY STATE LAWS
COMPEL MEMBERSHIP IN THE INTEGRATED BAR AS A PREREQUISITE TO PRACTICING
LAW, (FN14) AND THE BAR ASSOCIATION USES ITS FUNDS TO URGE LEGISLATION
OF WHICH INDIVIDUAL MEMBERS OFTEN DISAPPROVE.  THE PRESENT CASE IS, AS
THE COURT IN HANSON ASSERTED, INDISTINGUISHABLE FROM THE ISSUES RAISED
BY THOSE WHO FIND CONSTITUTIONAL DIFFICULTIES WITH THE INTEGRATED BAR. 
(FN15)  IF OUR STATEMENT IN HANSON CARRIED ANY MEANING, IT WAS AN
UNQUALIFIED RECOGNITION THAT LEGISLATION PROVIDING FOR AN INTEGRATED
BAR, EXERCISING FAMILIAR FUNCTIONS, IS SUBJECT TO NO INFIRMITY DERIVED
FROM THE FIRST AMENDMENT.  AGAIN, UNDER THE SECURITIES EXCHANGE ACT OF
1934, CONGRESS SPECIFICALLY AUTHORIZED THE FORMATION OF "NATIONAL
SECURITIES ASSOCIATIONS," MEMBERSHIP IN WHICH IS OF PRACTICAL NECESSITY
TO MANY BROKERS AND DEALERS.  (FN16) THE ASSOCIATION HAS URGED THE
PASSAGE OF SEVERAL LEGISLATIVE REFORMS (FN17) WHICH ONE CAN CONFIDENTLY
ASSUME DID NOT REPRESENT THE CONVICTIONS OF ALL MEMBERS.  TO COME
CLOSER TO THE HEART OF THE IMMEDIATE MATTER, IS THE UNION'S CHOICE OF
WHEN TO PICKET OR TO GO OUT ON STRIKE UNCONSTITUTIONAL?  PICKETING IS
STILL DEEMED ALSO A FORM OF SPEECH, (FN18) BUT SURELY THE UNION'S
DECISION TO STRIKE UNDER ITS STATUTORY AEGIS AS A BARGAINING UNIT IS
NOT AN UNCONSTITUTIONAL COMPULSION FORCED UPON MEMBERS WHO STRONGLY
OPPOSE A STRIKE, AS MINORITIES NOT INFREQUENTLY DO. INDEED, LEGISLATIVE
REFORM INTENDED TO INSURE THE FAIR REPRESENTATION OF THE MINORITY
WORKERS IN INTERNAL UNION POLITICS (FN19) WOULD BE REDUNDANT IF,
DESPITE ALL PRECAUTIONS, THE UNION WERE CONSTITUTIONALLY FORBIDDEN
BECAUSE OF MINORITY OPPOSITION TO SPEND MONEY IN ACCORDANCE WITH THE
MAJORITY'S DESIRES. 

HOW UNREALISTIC THE VIEWS OF PLAINTIFFS ARE BECOMES MANIFEST IN LIGHT
OF THE PURPOSE OF THE LEGISLATIVE SCHEME IN AUTHORIZING THE UNION SHOP
AND THE PRACTICAL NECESSITY FOR UNIONS TO PARTICIPATE IN WHAT AS A
MATTER OF ANALYTICAL FRAGMENTATION MAY BE CALLED POLITICAL ACTIVITIES. 
THE 1951 AMENDMENT OF THE RAILWAY LABOR ACT, WHICH ENACTED SEC. 2,
ELEVENTH, WAS PASSED IN AN EFFORT TO MAKE MORE EQUITABLE THE SHARING OF
COSTS OF COLLECTIVE BARGAINING AMONG ALL THE WORKERS WHOM THE
BARGAINING AGENT REPRESENTED.  H.R. REP. NO. 2811, 81ST CONG., 2D SESS.
4; HEARINGS, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R.
7789, 81ST CONG., 2D SESS. 10, 11, 29, 49-50; HEARINGS, SUBCOMMITTEE OF
THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE ON S. 3295, 81ST
CONG., 2D SESS. 15-16, 130, 154, 170.  PRIOR TO THE PASSAGE OF THIS
AMENDMENT, THERE WAS NO WAY IN WHICH THE UNION COULD COMPEL NON-UNION
MEMBERS IN THE BARGAINING UNIT TO CONTRIBUTE TO THE EXPENSES INCURRED
IN SEEKING CONTRACTUAL PROVISIONS FROM THE CARRIER THAT WOULD REDOUND
TO THE ADVANTAGE OF ALL ITS EMPLOYEES.  THE MAIN REASON WHY PRIOR LAW
HAD FORBIDDEN UNION SHOPS IN THE RAILROAD INDUSTRY IS STATED IN THE
SENATE REPORT TO THE 1951 AMENDMENT: 

"THE PRESENT PROHIBITIONS AGAINST ALL FORMS OF UNION SECURITY
AGREEMENTS AND THE CHECK-OFF WERE MADE PART OF THE RAILWAY LABOR ACT IN
1934.  THEY WERE ENACTED INTO LAW AGAINST THE BACKGROUND OF EMPLOYER
USE OF THESE AGREEMENTS AS DEVICES FOR ESTABLISHING AND MAINTAINING
COMPANY UNIONS, THUS EFFECTIVELY DEPRIVING A SUBSTANTIAL NUMBER OF
EMPLOYEES OF THEIR RIGHT TO BARGAIN COLLECTIVELY.  IT IS ESTIMATED THAT
IN 1934 THERE WERE OVER 700 AGREEMENTS BETWEEN THE CARRIERS AND UNIONS
ALLEGED TO BE COMPANY UNIONS.  THESE AGREEMENTS REPRESENTED OVER 20
PERCENT OF THE TOTAL NUMBER OF AGREEMENTS IN THE INDUSTRY. 

"IT WAS BECAUSE OF THIS SITUATION THAT LABOR ORGANIZATIONS AGREED TO
THE PRESENT STATUTORY PROHIBITIONS AGAINST UNION SECURITY AGREEMENTS. 
AN EFFORT WAS MADE TO LIMIT THE PROHIBITION TO COMPANY UNIONS.  THIS,
HOWEVER, PROVED UNSUCCESSFUL; AND IN ORDER TO REACH THE PROBLEM OF
COMPANY CONTROL OVER UNIONS, LABOR ORGANIZATIONS ACCEPTED THE MORE
GENERAL PROHIBITIONS WHICH ALSO DEPRIVED THE NATIONAL ORGANIZATIONS OF
SEEKING UNION SECURITY AGREEMENTS AND CHECK-OFF PROVISIONS  ...  . 

"SINCE THE ENACTMENT OF THE 1934 AMENDMENTS, COMPANY UNIONS HAVE
PRACTICALLY DISAPPEARED."  S. REP. NO. 2262, 81ST CONG., 2D SESS. 2-3. 
SEE ALSO H.R. REP. NO. 2811, 81ST CONG., 2D SESS. 3. 

NOTHING WAS FURTHER FROM CONGRESSIONAL PURPOSE THAN TO BE CONCERNED
WITH RESTRICTIONS UPON THE RIGHT TO SPEAK.  ITS PURPOSE WAS TO
ELIMINATE "FREE RIDERS" IN THE BARGAINING UNIT.  INROADS ON FREE SPEECH
WERE NOT REMOTELY INVOLVED IN THE LEGISLATIVE PROCESS.  THEY WERE IN
NOBODY'S MIND.  CONGRESS LEGISLATED TO CORRECT WHAT IT FOUND TO BE
ABUSES IN THE DOMAIN OF PROMOTING INDUSTRIAL PEACE.  THIS COURT WOULD
STRAY BEYOND ITS POWERS WERE IT TO ERECT A FAR-FETCHED CLAIM, DERIVED
FROM SOME ULTIMATE RELATION BETWEEN AN OBVIOUSLY VALID AIM OF
LEGISLATION AND AN ABSTRACT CONCEPTION OF FREEDOM, INTO A
CONSTITUTIONAL RIGHT. 

FOR US TO HOLD THAT THESE DEFENDANT UNIONS MAY NOT EXPEND THEIR
MONEYS FOR POLITICAL AND LEGISLATIVE PURPOSES WOULD BE COMPLETELY TO
IGNORE THE LONG HISTORY OF UNION CONDUCT AND ITS PERVASIVE ACCEPTANCE
IN OUR POLITICAL LIFE.  AMERICAN LABOR'S INITIAL ROLE IN SHAPING
LEGISLATION DATES BACK 130 YEARS.  (FN20)  WITH THE COMING OF THE AFL
IN 1886, LABOR ON A NATIONAL SCALE WAS COMMITTED NOT TO ACT AS A CLASS
PARTY BUT TO MAINTAIN A PROGRAM OF POLITICAL ACTION IN FURTHERANCE OF
ITS INDUSTRIAL STANDARDS.  (FN21)  BRITISH TRADE UNIONS WERE SUPPORTING
MEMBERS OF THE HOUSE OF COMMONS AS EARLY AS 1867.  (FN22)  THE CANADIAN
TRADES CONGRESS IN 1894 DEBATED WHETHER POLITICAL ACTION SHOULD BE THE
MAIN OBJECTIVE OF THE LABOR FORCE.  (FN23)  AND IN A RECENT AUSTRALIAN
CASE, THE HIGH COURT UPHELD THE RIGHT OF A UNION TO EXPEL A MEMBER WHO
REFUSED TO PAY A POLITICAL LEVY.  (FN24)  THAT BRITAIN, CANADA AND
AUSTRALIA HAVE NO EXPLICIT FIRST AMENDMENT IS BESIDE THE POINT.  FOR
ONE THING, THE FREEDOMS SAFEGUARDED IN TERMS IN THE FIRST AMENDMENT ARE
DEEPLY ROOTED AND RESPECTED IN THE BRITISH TRADITION, AND ARE PART OF
LEGAL PRESUPPOSITIONS IN CANADA AND AUSTRALIA.  AND IN RELATION TO OUR
IMMEDIATE CONCERN, THE BRITISH COMMONWEALTH EXPERIENCE ESTABLISHES THE
PERTINENCE OF POLITICAL MEANS FOR REALIZING BASIC TRADE-UNION
INTERESTS. 

THE EXPENDITURES REVEALED BY THE AFL-CIO EXECUTIVE COUNCIL REPORTS
EMPHASIZE THAT LABOR'S PARTICIPATION IN URGING LEGISLATION AND
CANDIDACIES IS A MAJOR ONE. IN THE LAST THREE FISCAL YEARS, THE
COMMITTEE ON POLITICAL EDUCATION (COPE) EXPENDED A TOTAL OF
$1,681,990.42; THE AFL-CIO NEWS COST $756,591.99; THE LEGISLATIVE
DEPARTMENT REPORTED TOTAL EXPENSES OF $741,918.24.  (FN25)  YET THE
GEORGIA TRIAL COURT HAS FOUND THAT THESE FUNDS WERE NOT REASONABLY
RELATED TO THE UNIONS' ROLE AS COLLECTIVE BARGAINING AGENTS.  ONE COULD
SCARCELY CALL THIS A FINDING OF FACT BY WHICH THIS COURT IS BOUND, OR
EVEN ONE OF LAW.  IT IS A BASELESS DOGMATIC ASSERTION THAT FLIES IN THE
FACE OF FACT.  IT RESTS ON A MERE LISTING OF UNIONS' EXPENDITURES AND
AN EXHIBIT OF LABOR PUBLICATIONS.  THE PASSAGE OF THE ADAMSON ACT
(FN26) IN 1916, ESTABLISHING THE EIGHT-HOUR DAY FOR THE RAILROAD
INDUSTRY, AFFORDS POSITIVE PROOF THAT LABOR MAY ACHIEVE ITS DESIRED
RESULT THROUGH LEGISLATION AFTER BARGAINING TECHNIQUES FAIL.  SEE
WILSON V. NEW, SUPRA, AT 340-343.  IF HIGHER WAGES AND SHORTER HOURS
ARE PRIME ENDS OF A UNION IN BARGAINING COLLECTIVELY, THESE GOALS MAY
OFTEN BE MORE EFFECTIVELY ACHIEVED BY LOBBYING AND THE SUPPORT OF
SYMPATHETIC CANDIDATES.  IN 1960 THERE WERE AT LEAST EIGHTEEN RAILWAY
LABOR ORGANIZATIONS REGISTERED AS CONGRESSIONAL LOBBY GROUPS.  (FN27) 

WHEN ONE RUNS DOWN THE DETAILED LIST OF NATIONAL AND INTERNATIONAL
PROBLEMS ON WHICH THE AFL-CIO SPEAKS, IT SEEMS RATHER NAIVE FOR A COURT
TO CONCLUDE - AS DID THE TRIAL COURT - THAT THE UNION EXPENDITURES WERE
"NOT REASONABLY NECESSARY TO COLLECTIVE BARGAINING OR TO MAINTAINING
THE EXISTENCE AND POSITION OF SAID UNION DEFENDANTS AS EFFECTIVE
BARGAINING AGENTS."  THE NOTION THAT ECONOMIC AND POLITICAL CONCERNS
ARE SEPARABLE IS PRE-VICTORIAN.  PRESIDENTS OF THE UNITED STATES AND
COMMITTEES OF CONGRESS INVITE VIEWS OF LABOR ON MATTERS NOT IMMEDIATELY
CONCERNED WITH WAGES, HOURS, AND CONDITIONS OF EMPLOYMENT.  (FN28)  AND
THIS COURT ACCEPTS BRIEFS AS AMICI FROM THE AFL-CIO ON ISSUES THAT
CANNOT BE CALLED INDUSTRIAL, IN ANY CIRCUMSCRIBED SENSE.  IT IS NOT
TRUE IN LIFE THAT POLITICAL PROTECTION IS IRRELEVANT TO, AND INSULATED
FROM, ECONOMIC INTERESTS.  IT IS NOT TRUE FOR INDUSTRY OR FINANCE. 
(FN29)  NEITHER IS IT TRUE FOR LABOR.  IT DISRESPECTS THE WISE,
HARDHEADED MEN WHO WERE THE AUTHORS OF OUR CONSTITUTION AND OUR BILL OF
RIGHTS TO CONCLUDE THAT THEIR SCHEME OF GOVERNMENT REQUIRES WHAT THE
FACTS OF LIFE REJECT.  AS MR. JUSTICE RUTLEDGE STATED:  "TO SAY THAT
LABOR UNIONS AS SUCH HAVE NOTHING OF VALUE TO CONTRIBUTE TO THAT
PROCESS (THE ELECTORAL PROCESS) AND NO VITAL OR LEGITIMATE INTEREST IN
IT IS TO IGNORE THE OBVIOUS FACTS OF POLITICAL AND ECONOMIC LIFE AND OF
THEIR INCREASING INTERRELATIONSHIP IN MODERN SOCIETY."  UNITED STATES
V. CIO, 335 U.S. 106, 129, 144 (CONCURRING OPINION JOINED IN BY BLACK,
DOUGLAS, AND MURPHY, JJ).  FIFTY YEARS AGO THIS COURT HELD THAT THERE
WAS NO CONNECTION BETWEEN OUTLAWRY OF "YELLOW DOG CONTRACTS" ON
INTERSTATE RAILROADS AND INTERSTATE COMMERCE, AND THEREFORE FOUND
UNCONSTITUTIONAL LEGISLATION DIRECTED AGAINST THE EVILS OF THESE
AGREEMENTS.  IS IT ANY MORE CONSONANT WITH THE FACTS OF LIFE TODAY,
THAN WAS THIS HOLDING IN ADAIR V. UNITED STATES, 208 U.S. 161, TO SAY
THAT THE TAX POLICIES OF THE NATIONAL GOVERNMENT - THE SCHEME OF RATES
AND EXEMPTIONS - HAVE NO CLOSE RELATION TO THE WAGES OF WORKERS; THAT
LEGISLATIVE DEVELOPMENTS LIKE THE TENNESSEE VALLEY AUTHORITY DO NOT
INTIMATELY TOUCH THE LIVES OF WORKERS WITHIN THEIR RESPECTIVE REGIONS;
THAT NATIONAL MEASURES FURTHERING HEALTH AND EDUCATION DO NOT DIRECTLY
BEAR ON THE LIVES OF INDUSTRIAL WORKERS; THAT CANDIDATES WHO SUPPORT
THESE MOVEMENTS DO NOT STAND IN DIFFERENT RELATION TO LABOR'S NARROWEST
ECONOMIC INTERESTS THAN AVOWED OPPONENTS OF THESE MEASURES?  IS IT
RESPECTFUL OF THE MODES OF THOUGHT OF MADISON AND JEFFERSON PROJECTED
INTO OUR DAY TO ATTRIBUTE TO THEM THE VIEW THAT THE FIRST AMENDMENT
MUST BE CONSTRUED TO BAR UNIONS FROM CONCLUDING, BY DUE PROCEDURAL
STEPS, THAT CIVIL-RIGHTS LEGISLATION CONDUCES TO THEIR INTEREST,
THEREBY PROHIBITING UNION FUNDS TO BE EXPENDED TO PROMOTE PASSAGE OF
SUCH MEASURES?  (FN30) 

CONGRESS WAS NOT UNAWARE THAT RAILROAD UNIONS MIGHT USE THESE
MANDATORY CONTRIBUTIONS FOR FURTHERING THEIR ECONOMIC INTERESTS THROUGH
POLITICAL CHANNELS.  SEE 96 CONG. REC. 17049-17050.  THAT SUCH
CONSEQUENCES FROM AUTHORIZING COMPULSORY UNION MEMBERSHIP WERE TO BE
FORESEEN HAD BEEN INDICATED TO COMMITTEES OF CONGRESS LESS THAN FOUR
YEARS EARLIER WHEN THE UNION-SHOP PROVISIONS OF THE TAFT-HARTLEY ACT
WERE BEING DEBATED.  HEARINGS, SENATE COMMITTEE ON LABOR AND PUBLIC
WELFARE ON S. 55, 80TH CONG., 1ST SESS., PP. 726, 1452, 1455-1456,
1687, 2065, 2146, 2150; HEARINGS, HOUSE COMMITTEE ON EDUCATION AND
LABOR ON H.R. 8, 80TH CONG., 1ST SESS., PP. 350, 2260.  THE FAILURE OF
THE RAILWAY LABOR ACT AMENDMENTS TO EXEMPT THE MEMBER WHO DID NOT
CHOOSE TO HAVE HIS CONTRIBUTIONS PUT TO SUCH USES MAY HAVE REFLECTED
DIFFICULTIES IN DRAFTING AN EXEMPTING CLAUSE.  SEE HEARINGS,
SUBCOMMITTEE OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE ON S.
3295, 81ST CONG., 2D SESS., PP. 173-174.  BUT IN 1958, THE SENATE VOTED
DOWN A PROPOSAL TO ENABLE AN INDIVIDUAL UNION MEMBER TO RECOVER ANY
PORTION OF HIS DUES NOT EXPENDED FOR "COLLECTIVE BARGAINING PURPOSES." 
104 CONG. REC. 11330-11347. 

CONGRESS IS, OF COURSE, FREE TO ENACT LEGISLATION ALONG LINES ADOPTED
IN GREAT BRITAIN, WHEREBY DISSENTING MEMBERS MAY CONTRACT OUT OF ANY
LEVIES TO BE USED FOR POLITICAL PURPOSES.  (FN31)  "AT THE POINT WHERE
THE MUTUAL ADVANTAGE OF ASSOCIATION DEMANDS TOO MUCH INDIVIDUAL
DISADVANTAGE, A COMPROMISE MUST BE STRUCK  ...  .  WHEN THAT POINT HAS
BEEN REACHED - WHERE THE INTERSECTION SHOULD FALL - IS PLAINLY A
QUESTION WITHIN THE SPECIAL PROVINCE OF THE LEGISLATURE  ...  .  EVEN
WHERE THE SOCIAL UNDESIRABILITY OF A LAW MAY BE CONVINCINGLY URGED,
INVALIDATION OF THE LAW BY A COURT DEBILITATES POPULAR DEMOCRATIC
GOVERNMENT.  MOST LAWS DEALING WITH ECONOMIC AND SOCIAL PROBLEMS ARE
MATTERS OF TRIAL AND ERROR  ...  .  BUT EVEN IF A LAW IS FOUND WANTING
ON TRIAL, IT IS BETTER THAT ITS DEFECTS SHOULD BE DEMONSTRATED AND
REMOVED THAN THAT THE LAW SHOULD BE ABORTED BY JUDICIAL FIAT.  SUCH AN
ASSERTION OF JUDICIAL POWER DEFLECTS RESPONSIBILITY FROM THOSE ON WHOM
IN A DEMOCRATIC SOCIETY IT ULTIMATELY RESTS - THE PEOPLE."  AMERICAN
FEDERATION OF LABOR V. AMERICAN SASH & DOOR CO., 335 U.S. 538, 546, 553
(CONCURRING OPINION). 

IN CONCLUSION, THEN, WE ARE ASKED BY UNION MEMBERS WHO OPPOSE THESE
EXPENDITURES TO PROTECT THEIR RIGHT TO FREE SPEECH - ALTHOUGH THEY ARE
AS FREE TO SPEAK AS EVER - AGAINST GOVERNMENTAL ACTION WHICH HAS
PERMITTED A UNION ELECTED BY DEMOCRATIC PROCESS TO BARGAIN FOR A UNION
SHOP AND TO EXPEND THE FUNDS THEREBY COLLECTED FOR PURPOSES WHICH ARE
CONTROLLED BY INTERNAL UNION CHOICE.  TO DO SO WOULD BE TO MUTILATE A
SCHEME DESIGNED BY CONGRESS FOR THE PURPOSE OF EQUITABLY SHARING THE
COST OF SECURING THE BENEFITS OF UNION EXERTIONS; IT WOULD GREATLY
EMBARRASS IF NOT FRUSTRATE CONVENTIONAL LABOR ACTIVITIES WHICH HAVE
BECOME INSTITUTIONALIZED THROUGH TIME.  TO DO SO IS TO GIVE
CONSTITUTIONAL SANCTION TO DOCTRINAIRE VIEWS AND TO GRANT A MINISCULE
CLAIM CONSTITUTIONAL RECOGNITION. 

IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, THE LEGISLATIVE POWER
OF A STATE TO SUBSIDIZE BUS SERVICE TO PAROCHIAL SCHOOLS WAS SUSTAINED,
ALTHOUGH THE COURT RECOGNIZED THAT BECAUSE OF THE SUBSIDY SOME PARENTS
WERE UNDOUBTEDLY ENABLED TO SEND THEIR CHILDREN TO CHURCH SCHOOLS WHO
OTHERWISE WOULD NOT.  IT MAKES LITTLE DIFFERENCE WHETHER THE CONCLUSION
IS PHRASED SO THAT NO ESTABLISHMENT OF RELIGION WAS FOUND, OR WHETHER
IT BE MORE FORTHRIGHTLY STATED THAT THE MERELY INCIDENTAL
"ESTABLISHMENT" WAS TOO INSIGNIFICANT.  FIGURES OF THE DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE SHOW THAT THE YEARLY COST OF
TRANSPORTATION TO NON-PUBLIC SCHOOLS IN MASSACHUSETTS TOTALS
APPROXIMATELY $659,749; IN ILLINOIS $1,807,740.  (FN32)  THESE ARE
SCARCELY WHAT WOULD BE TERMED NEGLIGIBLE EXPENDITURES.  SOME MIGHT
CONSIDER THE RESULTING "ESTABLISHMENT" MORE SUBSTANTIAL THAN THE LOSS
OF FREE SPEECH THROUGH THE PAYMENT OF $3 PER MONTH FOR UNION DUES,
WHEREBY A DISSIDENT MEMBER FEELS IDENTIFIED IN HIS OWN MIND WITH THE
UNION'S POSITION. 

THE WORDS OF MR. JUSTICE CARDOZO, USED IN A DIFFERENT CONTEXT, ARE
APPLICABLE HERE:  "COUNTLESS CLAIMS OF RIGHT CAN BE DISCOVERED TO HAVE
THEIR SOURCE OR THEIR OPERATIVE LIMITS IN THE PROVISIONS OF A FEDERAL
STATUTE OR IN THE CONSTITUTION ITSELF WITH ITS CIRCUMAMBIENT
RESTRICTIONS UPON LEGISLATIVE POWER.  TO SET BOUNDS TO THE PURSUIT, THE
COURTS HAVE FORMULATED THE DISTINCTION BETWEEN CONTROVERSIES THAT ARE
BASIC AND THOSE THAT ARE COLLATERAL, BETWEEN DISPUTES THAT ARE
NECESSARY AND THOSE THAT ARE MERELY POSSIBLE.  WE SHALL BE LOST IN A
MAZE IF WE PUT THAT COMPASS BY."  GULLY V. FIRST NATIONAL BANK, 299
U.S. 109, 118. 

I WOULD REVERSE AND REMAND THE CASE FOR DISMISSAL IN THE GEORGIA
COURTS. 

FN1  "A STATUTE MUST BE CONSTRUED, IF FAIRLY POSSIBLE, SO AS TO AVOID
NOT ONLY THE CONCLUSION THAT IT IS UNCONSTITUTIONAL BUT ALSO GRAVE
DOUBTS UPON THAT SCORE." 

FN2  TAFT, THE A.F. OF L. IN THE TIME OF GOMPERS, P. 71 (1957). 

FN3  PERLMAN AND TAFT, HISTORY OF LABOR IN THE UNITED STATES, 1896
1932, PP. 380-385. 

FN4  S. REP. NO. 2262, 81ST CONG., 2D SESS. 2-3. 

FN5  REMARKS OF MR. HARRISON, HEARINGS, HOUSE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE, 81ST CONG., 2D SESS., P. 253. 

FN6  96 CONG. REC. 17049-17050; HEARINGS, SUBCOMMITTEE OF THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE ON S. 3295, 81ST CONG., 2D SESS.,
PP. 173-174. 

FN7  REMARKS OF MR. SMITH, HEARINGS, HOUSE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE, 81ST CONG., 2D SESS., PP. 115-116. 

FN8  COMPARE RAILWAY EMPLOYES' DEPT. V. HANSON, 351 U.S. 225, 236
237, N. 8. 

FN9  THE PERTINENT PORTION OF THE SECTION FOLLOWS: 

"NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, OR OF ANY
OTHER STATUTE OR LAW OF THE UNITED STATES, OR TERRITORY THEREOF, OR OF
ANY STATE, ANY CARRIER OR CARRIERS AS DEFINED IN THIS CHAPTER AND A
LABOR ORGANIZATION OR LABOR ORGANIZATIONS DULY DESIGNATED AND
AUTHORIZED TO REPRESENT EMPLOYEES IN ACCORDANCE WITH THE REQUIREMENTS
OF THIS CHAPTER SHALL BE PERMITTED: 

"(A)  TO MAKE AGREEMENTS, REQUIRING, AS A CONDITION OF CONTINUED
EMPLOYMENT, THAT WITHIN SIXTY DAYS FOLLOWING THE BEGINNING OF SUCH
EMPLOYMENT, OR THE EFFECTIVE DATE OF SUCH AGREEMENTS, WHICHEVER IS THE
LATER, ALL EMPLOYEES SHALL BECOME MEMBERS OF THE LABOR ORGANIZATION
REPRESENTING THEIR CRAFT OR CLASS:  PROVIDED, THAT NO SUCH AGREEMENT
SHALL REQUIRE SUCH CONDITION OF EMPLOYMENT WITH RESPECT TO EMPLOYEES TO
WHOM MEMBERSHIP IS NOT AVAILABLE UPON THE SAME TERMS AND CONDITIONS AS
ARE GENERALLY APPLICABLE TO ANY OTHER MEMBER OR WITH RESPECT TO
EMPLOYEES TO WHOM MEMBERSHIP WAS DENIED OR TERMINATED FOR ANY REASON
OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE PERIODIC DUES,
INITIATION FEES, AND ASSESSMENTS (NOT INCLUDING FINES AND PENALTIES)
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP."  64 STAT. 1238, 45 U.S.C. SEC. 152, ELEVENTH. 

FN10  SEE THE PROVISIONS OF THE CONSTITUTIONS OF THE BROTHERHOOD OF
MAINTENANCE OF WAY EMPLOYEES, THE BROTHERHOOD OF RAILWAY CARMEN OF
AMERICA, AND THE INTERNATIONAL ASSOCIATION OF MACHINISTS BEFORE THE
COURT IN THE HANSON RECORD, PP. 103-143. 

FN11  APPELLEES' BRIEF, PP. 16-17, 65. 

FN12  "B.  THE GRAND LODGE CONSTITUTION OF THE BROTHERHOOD RAILWAY
CARMEN OF AMERICA PROHIBITS MEMBERS FROM 'INTERFERING WITH LEGISLATIVE
MATTERS AFFECTING NATIONAL, STATE, TERRITORIAL, DOMINION OR PROVINCIAL
LEGISLATION, ADVERSELY AFFECTING THE INTERESTS OF OUR MEMBERS.'  SEC.
64."  351 U.S., AT 237, N. 8. 

FN13  TO IGNORE THIS DISTINCTION WOULD BE TO GO FAR BEYOND THE
SEVERELY CRITICIZED, INDEED RATHER DISCREDITED, CASE OF UNITED STATES
V. BUTLER, 297 U.S. 1, WHICH FOUND COERCIVE IMPLICATIONS IN THE
PROCESSING TAX OF THE AGRICULTURAL ADJUSTMENT ACT.  THE DISSENTING
VIEWS OF MR. JUSTICE STONE, CONCURRED IN BY BRANDEIS AND CARDOZO, JJ.,
MAY SURELY BE SAID TO HAVE WON THE DAY:  "ALTHOUGH THE FARMER IS PLACED
UNDER NO LEGAL COMPULSION TO REDUCE ACREAGE, IT IS SAID THAT THE MERE
OFFER OF COMPENSATION FOR SO DOING IS A SPECIES OF ECONOMIC COERCION
WHICH OPERATES WITH THE SAME LEGAL FORCE AND EFFECT AS THOUGH THE
CURTAILMENT WERE MADE MANDATORY BY ACT OF CONGRESS."  297 U.S., AT 81. 

FOR AN ANALYSIS OF THE 1951 AMENDMENT LEADING TO A NARROW SCOPE OF
ITS CONSTITUTIONAL IMPLICATIONS, SEE WELLINGTON, THE CONSTITUTION, THE
LABOR UNION, AND "GOVERNMENTAL ACTION," 70 YALE L.J. 345, 352-360, 363
371. 

FN14  THE FOLLOWING STATES HAVE INTEGRATED BARS:  ALABAMA (ALA. CODE,
TIT. 46, SEC. 30); ALASKA (ALASKA LAWS ANN. SEC. 35-2-77A TO SEC. 35-2
77O); ARIZONA (ARIZ. CODE ANN.  SEC. 32-302); CALIFORNIA (CAL. BUS.  &
PROF. CODE SEC. 6002); FLORIDA (FLA. STAT. ANN., VOL. 31, PP. 699-713
(COURT RULE)); IDAHO (IDAHO CODE SEC. 3-408 TO SEC. 3-417); KENTUCKY
(KY. REV. STAT. SEC. 30.170); LOUISIANA (LA. REV. STAT. 37:211; ART.
IV, ARTICLES OF INCORPORATION, LA. STATE BAR ASSN., 4 DART, ANNOTATIONS
TO LA. STAT. 1950, P. 29); MICHIGAN (MICH. STAT. ANN. SEC. 27-101);
MISSISSIPPI (MISS.  CODE SEC. 8696); MISSOURI (MO. SUPREME COURT RULE
6, 352 MO. XXIX); NEBRASKA (NEB. SUPREME COURT RULE IV, IN RE
INTEGRATION OF NEBRASKA STATE BAR ASSN., 133 NEB. 283, 275 N.W. 265);
NEVADA (NEV. REV.  STAT. 7.270-7.600); NEW MEXICO (N. MEX.  STAT.  ANN.
SEC. 18-1-2 TO SEC. 18-1-24); NORTH CAROLINA (N.C. GEN. STAT. SEC. 84
16); NORTH DAKOTA (N.D. REV. CODE SEC. 27-1202); OKLAHOMA (IN RE
INTEGRATION OF THE BAR OF OKLAHOMA, 185 OKLA. 505, 95 P.2D 113, AMENDED
BY OKLA. SUPREME COURT RULES APPROVED OCTOBER 6, 1958, OKLA. STAT.
ANN., 1960 CUM. ANN. POCKET PART, TIT. 5, C. 1, APP. 1); OREGON (ORE. 
REV.  STAT. SECS. 9.010-9.210); SOUTH DAKOTA (S.D. CODE SEC. 32.1114);
TEXAS (VERN.  CIV.  STAT., ART. 320A-1, SEC. 3); UTAH (UTAH CODE ANN.
SEC. 78-51-1 TO SEC. 78-51-25); VIRGINIA (VA. CODE SEC. 54-49);
WASHINGTON (WASH. REV. CODE SEC. 2.48.020); WEST VIRGINIA (W.VA. CODE
ANN. 51-1-4A); WISCONSIN (WIS. STAT. SEC. 256.31, 5 WIS. 2D 618, 627,
93 N.W.2D 601, 605); WYOMING (WYO. STAT. SEC. 5-22; WYO. SUPREME COURT
RULES FOR STATE BAR, RULE 5).    FN15  SO FAR AS REPORTED, ALL
DECISIONS HAVE UPHELD THE INTEGRATED BAR AGAINST CONSTITUTIONAL
ATTACK.  CARPENTER V. STATE BAR OF CALIFORNIA, 211 CAL. 358, 295 P. 23;
HERRON V. STATE BAR OF CALIFORNIA, 24 CAL. 2D 53, 147 P.2D 543;
PETITION OF FLORIDA STATE BAR ASSN., 40 SO. 2D 902; IN RE MUNDY, 202
LA. 41, 11 SO. 2D 398; AYRES V. HADAWAY, 303 MICH. 589, 6 N.W.2D 905;
IN RE SCOTT, 53 NEV. 24, 292 P. 291; IN RE PLATZ, 60 NEV. 296, 108 P.2D
858; IN RE GIBSON, 35 N. MEX.  550, 4 P.2D 643; KELLEY V. STATE BAR OF
OKLAHOMA, 148 OKLA. 282, 298 P. 623; LATHROP V. DONOHUE, 10 WIS. 2D
230, 102 N.W.2D 404, AFFIRMED, POST, P. 820. 

FN16  THE MALONEY ACT OF 1938 ADDED SEC. 15A TO THE SECURITIES
EXCHANGE ACT OF 1934.  52 STAT. 1070, 15 U.S.C. SEC. 78O-3.  IN ORDER
TO BE REGISTERED, A NUMBER OF STATUTORY STANDARDS MUST BE MET.   THE
STATUTE SPECIFICALLY REQUIRES THAT AN ASSOCIATION'S RULES PROVIDE FOR
DEMOCRATIC REPRESENTATION OF THE MEMBERSHIP AND THAT DUES BE EQUITABLY
ALLOCATED.  SEE SEC. 15AB)(5) AND (6).  ONLY ONE ASSOCIATION, THE
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., HAS EVER APPLIED FOR
OR BEEN GRANTED REGISTRATION.  NASD MEMBERSHIP COMPRISES ROUGHLY THREE
QUARTERS OF ALL BROKERS AND DEALERS REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION.  LOSS, SECURITIES REGULATION 766-67 (1951, SUPP.
1955).  SECTIONS 15AI) AND (N) OF THE ACT AUTHORIZE THE NASD TO
FORMULATE RULES WHICH STIPULATE THAT MEMBERS SHALL REFUSE TO DEAL WITH
NON-MEMBERS WITH IMMUNITY FROM THE ANTITRUST LAWS.  SEE S. REP. NO.
1455, 75TH CONG., 3D SESS. 8-9 (1938); LOSS, OP. CIT., SUPRA, 769-770. 
THE COMMISSION HAS STATED THAT IT IS "VIRTUALLY IMPOSSIBLE FOR A DEALER
WHO IS NOT A MEMBER OF THE NASD TO PARTICIPATE IN A DISTRIBUTION OF
IMPORTANT SIZE."  NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., 19
S.E.C. 424, 441. 

FN17  IN 1949 SENATOR FREAR INTRODUCED A BILL WHICH WOULD HAVE
GREATLY EXPANDED THE APPLICABILITY OF THE REGISTRATION, PROXY, AND
INSIDER TRADING PROVISIONS OF THE SECURITIES EXCHANGE ACT TO SMALL
CORPORATIONS.  S. 2408, 81ST CONG., 1ST SESS.  THE NASD SUPPORTED THE
PASSAGE OF THE PROPOSED LEGISLATION, AND TESTIFIED ON ITS BEHALF BEFORE
THE SENATE SUBCOMMITTEE.  HEARINGS BEFORE SUBCOMMITTEE OF SENATE
COMMITTEE ON BANKING AND CURRENCY ON S. 2408, 81ST CONG., 2D SESS. 53
62 (1950); LOSS, OP. CIT., SUPRA, 620, 621. 

FN18  TO THIS EXTENT THORNHILL V. ALABAMA, 310 U.S. 88, 101-106, HAS
SURVIVED AND WAS APPLIED IN CHAUFFEURS UNION V. NEWELL, 356 U.S. 341. 

FN19  SEE COX, INTERNAL AFFAIRS OF LABOR UNIONS UNDER THE LABOR
REFORM ACT OF 1959, 58 MICH. L. REV. 819, 829-851. 

FN20  1 COMMONS, HISTORY OF LABOR IN THE UNITED STATES, 318-325
(1918). 

FN21  TAFT, THE A.F. OF L. IN THE TIME OF GOMPERS, 289-292 (1957);
BAKKE AND KERR, UNIONS, MANAGEMENT AND THE PUBLIC, 215 (1948). 

FN22  3 COLE, A SHORT HISTORY OF THE BRITISH WORKING CLASS MOVEMENT,
56 (2D ED. 1937). 

FN23  LOGAN, TRADE UNIONS IN CANADA, 59-60 (1948). 

FN24  WILLIAM V. HURSEY, 33 A.L.J.R. 269 (1959). 

FN25  THESE ARE THE TOTALS OF THE FIGURES FOR 1957, 1958, AND 1959
REPORTED IN PROCEEDINGS OF THE AFL-CIO CONSTITUTIONAL CONVENTION, VOL.
II, PP. 17-19 (1959) AND ID., PP. 17-19 (1957). 

FN26  39 STAT. 721, 45 U.S.C. SECS. 65-66. 

FN27  LETTERS FROM CLERK OF HOUSE OF REPRESENTATIVES TO SUPREME COURT
LIBRARIAN, MAY 5, 1960; MAY 10, 1961. 

FN28  FOR A RECENT EXAMPLE, SEE THE STATEMENT OF STANLEY H.
RUTTENBERG, DIRECTOR OF RESEARCH FOR THE AFL-CIO, ON PENDING TAX
LEGISLATION BEFORE THE HOUSE WAYS AND MEANS COMMITTEE, REPORTED IN PART
IN THE NEW YORK TIMES, MAY 12, 1961, P. 14, COL. 3. 

FN29  A CONTESTED QUESTION IN THE CORPORATE FIELD IS THE LEGITIMACY
OF CORPORATE CHARITABLE CONTRIBUTIONS.  THIS PRESENTS A NOT DISSIMILAR
PROBLEM WHETHER THE GOVERNMENT MAY AUTHORIZE AN ORGANIZATION TO EXPEND
MONEY FOR A PURPOSE OUTSIDE THE CORPORATE BUSINESS TO WHICH AN
INDIVIDUAL STOCKHOLDER IS OPPOSED.  A SHAREHOLDER WHO JOINED PRIOR TO
THE AUTHORIZATION AND WHO THEREFORE CANNOT BE SAID TO HAVE IMPLIEDLY
CONSENTED SURELY IS AS DIRECTLY AFFECTED AS IS THE MEMBER OF A UNION
SHOP.  SEE A.P. SMITH MFG. CO. V. BARLOW, 13 N.J. 145, 98 A.2D 581,
WHICH UPHELD AGAINST FEDERAL CONSTITUTIONAL ATTACK A STATE STATUTE
WHICH AUTHORIZED NEW JERSEY CORPORATIONS TO MAKE CONTRIBUTIONS TO
CHARITY.  THE AMOUNTS INVOLVED WERE SUBSTANTIAL. 

FN30  SEE PROCEEDINGS OF THE AFL-CIO CONSTITUTIONAL CONVENTION, VOL.
II, PP. 183-192 (1959). 

A RECENT LEADER OF THE LONDON TIMES WHICH REVIEWED THE ANNUAL REPORT
OF THE BRITISH TRADE UNIONS COUNCIL NOTED THAT THE DOCUMENT CONCERNED
ITSELF WITH "FEW  ...  POLITICAL SUBJECTS  ...  WHICH HAVE NOT THEIR
INDUSTRIAL SIDES."  THE LONDON TIMES, AUG. 23, 1960, P. 9, COL. 2. 

FN31  THE COURSE OF LEGISLATION IN GREAT BRITAIN ILLUSTRATES THE
VARIOUS METHODS OPEN TO CONGRESS FOR EXEMPTING UNION MEMBERS FROM
POLITICAL LEVIES.  AS A CONSEQUENCE OF A RESTRICTIVE INTERPRETATION OF
THE TRADE UNION ACT OF 1876, 39 & 40 VICT., C. 22, BY THE HOUSE OF
LORDS IN AMALGAMATED SOCIETY OF RY. SERVANTS V. OSBORNE, 1910 A.C. 87,
PARLIAMENT IN 1913 PASSED LEGISLATION WHICH ALLOWED A UNION MEMBER TO
EXEMPT HIMSELF FROM POLITICAL CONTRIBUTIONS BY GIVING SPECIFIC NOTICE. 
TRADE UNION ACT OF 1913, 2 & 3 GEO. V, C. 30.  THE FEAR INSTILLED BY
THE GENERAL STRIKE IN 1926 CAUSED THE CONSERVATIVE PARLIAMENT TO AMEND
THE "CONTRACTING OUT" PROCEDURE BY A "CONTRACTING IN" SCHEME, THE NET
EFFECT OF WHICH WAS TO REQUIRE THAT EACH INDIVIDUAL GIVE NOTICE OF HIS
CONSENT TO CONTRIBUTE BEFORE HIS DUES COULD BE USED FOR POLITICAL
PURPOSES.  TRADE DISPUTES AND TRADE UNIONS ACT OF 1927, 17 & 18 GEO. V,
C. 22.  WHEN THE LABOR PARTY CAME TO POWER, PARLIAMENT RETURNED TO THE
1913 METHOD.  TRADE DISPUTES AND TRADE UNIONS ACT OF 1946, 9 & 10 GEO.
VI, C. 52.  THE CONSERVATIVE PARTY, WHEN IT CAME BACK, RETAINED THE
LEGISLATION OF ITS OPPONENTS. 

FN32  STATISTICS OF STATE SCHOOL SYSTEMS, 1955-1956:  ORGANIZATION,
STAFF, PUPILS, AND FINANCES, C. 2, P. 70 (U.S. DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE, 1959). 
..END :




LATHROP V. DONOHUE 367 U.S. 820 


NO. 200.  ARGUED JANUARY 18, 1961.  - DECIDED JUNE 19, 1961.  - 10 WIS.
2D 230, 102 N.W.2D 404, AFFIRMED. 


ACTING IN ACCORDANCE WITH AN ACT OF THE STATE LEGISLATURE, THE SUPREME
COURT OF WISCONSIN PROMULGATED RULES AND BYLAWS CREATING AN INTEGRATED
STATE BAR AND REQUIRING ALL LAWYERS PRACTICING IN THE STATE TO BE
MEMBERS THEREOF AND TO PAY ANNUAL DUES OF $15.  APPELLANT PAID HIS DUES
UNDER PROTEST AND SUED FOR A REFUND, CLAIMING THAT THE STATE BAR
ENGAGED IN POLITICAL ACTIVITIES WHICH HE OPPOSED, AND THAT BY COERCING
HIM TO SUPPORT IT, SUCH RULES AND BYLAWS VIOLATED HIS RIGHTS UNDER THE
FOURTEENTH AMENDMENT.  THE STATE SUPREME COURT HELD THAT COMPULSORY
ENROLLMENT IN THE STATE BAR IMPOSED ONLY THE DUTY TO PAY DUES;
SUSTAINED THE CONSTITUTIONALITY OF THE RULES AND BYLAWS; AND AFFIRMED A
JUDGMENT DISMISSING THE COMPLAINT.  ON APPEAL TO THIS COURT, HELD: 

1.  THIS APPEAL IS COGNIZABLE BY THIS COURT UNDER 28 U.S.C. SEC.
1257(2), WHICH AUTHORIZES IT TO REVIEW ON APPEAL A FINAL JUDGMENT
RENDERED BY THE HIGHEST COURT OF A STATE "WHERE IS DRAWN IN QUESTION
THE VALIDITY OF A (STATE) STATUTE."  PP. 824-827. 

2.  INSOFAR AS THE RULES AND BYLAWS MERELY REQUIRE LAWYERS PRACTICING
IN THE STATE TO BECOME MEMBERS OF THE INTEGRATED STATE BAR AND TO PAY
REASONABLE ANNUAL DUES, THEY DO NOT VIOLATE THE FOURTEENTH AMENDMENT. 
RAILWAY EMPLOYES' DEPARTMENT V. HANSON, 351 U.S. 225.  PP. 827-843, 849
850, 865. 

3.  THE JUDGMENT IS AFFIRMED WITHOUT PASSING ON THE CONCLUSION OF THE
WISCONSIN SUPREME COURT THAT APPELLANT MAY CONSTITUTIONALLY BE
COMPELLED TO CONTRIBUTE HIS FINANCIAL SUPPORT TO POLITICAL ACTIVITIES
WHICH HE OPPOSES.  PP. 843-848. 

LATHROP V. DONOHUE. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE CLARK AND MR. JUSTICE
STEWART JOIN. 

THE WISCONSIN SUPREME COURT INTEGRATED THE WISCONSIN BAR BY AN ORDER
WHICH CREATED "THE STATE BAR OF WISCONSIN" ON JANUARY 1, 1957, UNDER
RULES AND BYLAWS PROMULGATED BY THE COURT.  IN RE INTEGRATION OF THE
BAR, 273 WIS. 281; ID., P. VII; 77 N.W.2D 602.  THE ORDER ORIGINALLY
WAS EFFECTIVE FOR A TWO-YEAR TRIAL PERIOD, BUT IN 1958 WAS CONTINUED
INDEFINITELY.  IN RE INTEGRATION OF THE BAR, 5 WIS. 2D 618, 93 N.W.2D
601.  ALLEGING THAT THE "RULES AND BY-LAWS REQUIRED THE PLAINTIFF TO
ENROLL IN THE STATE BAR OF WISCONSIN AND TO PAY DUES TO THE TREASURER
OF THE STATE BAR OF WISCONSIN ON THE PENALTY OF BEING DEPRIVED OF HIS
LIVELIHOOD AS A PRACTICING LAWYER, IF HE SHOULD FAIL TO DO SO," THE
APPELLANT, A WISCONSIN LAWYER, BROUGHT THIS ACTION IN THE CIRCUIT COURT
OF DANE COUNTY FOR THE REFUND OF $15 ANNUAL DUES FOR 1959 PAID BY HIM
UNDER PROTEST TO APPELLEE, THE TREASURER OF THE STATE BAR.  HE ATTACHED
TO HIS COMPLAINT A COPY OF THE LETTER WITH WHICH HE HAD ENCLOSED HIS
CHECK FOR THE DUES.  HE STATED IN THE LETTER THAT HE PAID UNDER PROTEST
BECAUSE "I DO NOT LIKE TO BE COERCED TO SUPPORT AN ORGANIZATION WHICH
IS AUTHORIZED AND DIRECTED TO ENGAGE IN POLITICAL AND PROPAGANDA
ACTIVITIES  ...  .  A MAJOR PORTION OF THE ACTIVITIES OF THE STATE BAR
AS PRESCRIBED BY THE SUPREME COURT OF WISCONSIN ARE OF A POLITICAL AND
PROPAGANDA NATURE."  HIS COMPLAINT ALLEGES MORE SPECIFICALLY THAT THE
STATE BAR PROMOTES "LAW REFORM" AND "MAKES AND OPPOSES PROPOSALS FOR
CHANGES IN  ...  LAWS AND CONSTITUTIONAL PROVISIONS AND ARGUES TO
LEGISLATIVE BODIES AND THEIR COMMITTEES AND TO THE LAWYERS AND TO THE
PEOPLE WITH RESPECT TO THE ADOPTION OF CHANGES IN  ...  CODES, LAWS AND
CONSTITUTIONAL PROVISIONS."  HE ALLEGES FURTHER THAT IN THE COURSE OF
THIS ACTIVITY "THE STATE BAR OF WISCONSIN HAS USED ITS EMPLOYEES,
PROPERTY AND FUNDS IN ACTIVE, UNSOLICITED OPPOSITION TO THE ADOPTION OF
LEGISLATION BY THE LEGISLATURE OF THE STATE OF WISCONSIN, WHICH WAS
FAVORED BY THE PLAINTIFF, ALL CONTRARY TO PLAINTIFF'S CONVICTIONS AND
BELIEFS."  HIS COMPLAINT CONCLUDES:  "THE PLAINTIFF BASES THIS ACTION
ON HIS CLAIM THAT THE DEFENDANT HAS UNJUSTLY RECEIVED, HELD, AND
DISPOSED OF FUNDS OF THE PLAINTIFF IN THE AMOUNT OF $15.00, WHICH TO
THE KNOWLEDGE OF THE DEFENDANT WERE PAID TO THE DEFENDANT BY THE
PLAINTIFF UNWILLINGLY AND UNDER COERCION, AND THAT SUCH COERCION WAS
AND IS ENTAILED IN THE RULES AND BY-LAWS OF THE STATE BAR OF WISCONSIN
CONTINUED IN EFFECT BY THE AFORESAID ORDER OF THE SUPREME COURT OF THE
STATE OF WISCONSIN ...  ; AND THE SAID ORDER INSOFAR AS IT COERCES THE
PLAINTIFF TO SUPPORT THE STATE BAR OF WISCONSIN, IS UNCONSTITUTIONAL
AND IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE
UNITED STATES  ...  ." 

THE APPELLEE DEMURRED TO THE COMPLAINT ON THE GROUND, AMONG OTHERS,
(FN1) THAT IT FAILED TO STATE A CAUSE OF ACTION.  THE DEMURRER WAS
SUSTAINED AND THE COMPLAINT WAS DISMISSED.  THE SUPREME COURT OF
WISCONSIN, ON APPEAL, STATED THAT THE CIRCUIT COURT WAS WITHOUT
JURISDICTION TO DETERMINE THE QUESTIONS RAISED BY THE COMPLAINT. 
HOWEVER, TREATING THE CASE AS IF ORIGINALLY AND PROPERLY BROUGHT IN THE
SUPREME COURT, THE COURT CONSIDERED APPELLANT'S CONSTITUTIONAL CLAIMS,
NOT ONLY ON THE ALLEGATIONS OF THE COMPLAINT, BUT ALSO UPON THE FACTS,
OF WHICH IT TOOK JUDICIAL NOTICE, AS TO ITS OWN ACTIONS LEADING UP TO
THE CHALLENGED ORDER, AND AS TO ALL ACTIVITIES, INCLUDING LEGISLATIVE
ACTIVITIES, OF THE STATE BAR SINCE ITS CREATION.  (FN2)  THE JUDGMENT
OF THE CIRCUIT COURT DISMISSING THE COMPLAINT WAS AFFIRMED.  10 WIS. 2D
230, 102 N.W.2D 404.  THE SUPREME COURT HELD THAT THE REQUIREMENT THAT
APPELLANT BE AN ENROLLED DUES-PAYING MEMBER OF THE STATE BAR DID NOT
ABRIDGE HIS RIGHTS OF FREEDOM OF ASSOCIATION, AND ALSO THAT HIS RIGHTS
TO FREE SPEECH WERE NOT VIOLATED BECAUSE THE STATE BAR USED HIS MONEY
TO SUPPORT LEGISLATION WITH WHICH HE DISAGREED. 

AN APPEAL WAS BROUGHT HERE BY APPELLANT UNDER 28 U.S.C. SEC. 1257(2),
WHICH AUTHORIZES OUR REVIEW OF A FINAL JUDGMENT RENDERED BY THE HIGHEST
COURT OF A STATE "BY APPEAL, WHERE IS DRAWN IN QUESTION THE VALIDITY OF
A (STATE) STATUTE  ...  ."  WE POSTPONED TO THE HEARING ON THE MERITS
THE QUESTION WHETHER THE ORDER CONTINUING THE STATE BAR INDEFINITELY
UNDER THE RULES AND BYLAWS IS A "STATUTE" FOR THE PURPOSES OF APPEAL
UNDER SEC. 1257(2).  364 U.S. 810. 

WE THINK THAT THE ORDER IS A "STATUTE" FOR THE PURPOSES OF SEC.
1257(2).  UNDER THAT SECTION, THE LEGISLATIVE CHARACTER OF CHALLENGED
STATE ACTION, RATHER THAN THE NATURE OF THE AGENCY OF THE STATE
PERFORMING THE ACT, IS DECISIVE OF THE QUESTION OF JURISDICTION.  IT IS
NOT NECESSARY THAT THE STATE LEGISLATURE ITSELF SHOULD HAVE TAKEN THE
ACTION DRAWN IN QUESTION.  IN CONSTRUING THE SIMILAR JURISDICTIONAL
PROVISION IN THE JUDICIARY ACT OF 1867, 14 STAT. 385, WE SAID:  "ANY
ENACTMENT, FROM WHATEVER SOURCE ORIGINATING, TO WHICH A STATE GIVES THE
FORCE OF LAW IS A STATUTE OF THE STATE, WITHIN THE MEANING OF THE
CLAUSE CITED RELATING TO THE JURISDICTION OF THIS COURT."  WILLIAMS V.
BRUFFY, 96 U.S. 176, 183.  WE LIKEWISE SAID OF THE PROVISION OF THE ACT
OF 1925, 43 STAT. 936, WHICH IS THE PRESENT SEC. 1257(2):  "  ...  THE
JURISDICTIONAL PROVISION USES THE WORDS 'A STATUTE OF ANY STATE' IN
THEIR LARGER SENSE AND IS NOT INTENDED TO MAKE A DISTINCTION BETWEEN
ACTS OF A STATE LEGISLATURE AND OTHER EXERTIONS OF THE STATE'S LAW
MAKING POWER, BUT RATHER TO INCLUDE EVERY ACT LEGISLATIVE IN CHARACTER
TO WHICH THE STATE GIVES ITS SANCTION."  KING MANUFACTURING CO. V. CITY
COUNCIL, 277 U.S. 100, 104-105.  THUS THIS COURT HAS UPHELD
JURISDICTION ON APPEAL OF CHALLENGES TO MUNICIPAL ORDINANCES, E.G.,
KING MANUFACTURING CO. V. CITY COUNCIL, SUPRA; JAMISON V. TEXAS, 318
U.S. 413; CERTAIN TYPES OF ORDERS OF STATE REGULATORY COMMISSIONS,
E.G., LAKE ERIE & WESTERN R. CO. V. STATE PUBLIC UTILITIES COMM'N, 249
U.S. 422; AND SOME ORDERS OF OTHER STATE AGENCIES, E.G., HAMILTON V.
REGENTS, 293 U.S. 245, 257-258.  IT IS TRUE THAT IN THESE CASES THE
STATE AGENCY THE ACTION OF WHICH WAS CALLED IN QUESTION WAS EXERCISING
AUTHORITY DELEGATED TO IT BY THE LEGISLATURE.  HOWEVER, THIS FACT WAS
NOT DETERMINATIVE, BUT WAS MERELY RELEVANT TO THE CHARACTER OF THE
STATE'S ACTION.  THE ABSENCE OF SUCH A DELEGATION DOES NOT PRECLUDE
CONSIDERATION OF THE EXERCISE OF AUTHORITY AS A STATUTE. 

WE ARE SATISFIED THAT THIS APPEAL IS FROM AN ACT LEGISLATIVE IN
NATURE AND WITHIN SEC. 1257(2).  INTEGRATION OF THE BAR WAS EFFECTED
THROUGH AN INTERPLAY OF ACTION BY THE LEGISLATURE AND THE COURT
DIRECTED TO FASHIONING A POLICY FOR THE ORGANIZATION OF THE LEGAL
PROFESSION.  THE WISCONSIN LEGISLATURE INITIATED THE MOVEMENT FOR
INTEGRATION OF THE BAR IN 1943 WHEN IT PASSED THE STATUTE, CHAPTER 315
OF THE WISCONSIN LAWS FOR THAT YEAR, NOW WIS. REV. STAT. SEC. 256.31,
PROVIDING: 

"(1)  THERE SHALL BE AN ASSOCIATION TO BE KNOWN AS THE 'STATE BAR OF
WISCONSIN' COMPOSED OF PERSONS LICENSED TO PRACTICE LAW IN THIS STATE,
AND MEMBERSHIP IN SUCH ASSOCIATION SHALL BE A CONDITION PRECEDENT TO
THE RIGHT TO PRACTICE LAW IN WISCONSIN. 

"(2) THE SUPREME COURT BY APPROPRIATE ORDERS SHALL PROVIDE FOR THE
ORGANIZATION AND GOVERNMENT OF THE ASSOCIATION AND SHALL DEFINE THE
RIGHTS, OBLIGATIONS AND CONDITIONS OF MEMBERSHIP THEREIN, TO THE END
THAT SUCH ASSOCIATION SHALL PROMOTE THE PUBLIC INTEREST BY MAINTAINING
HIGH STANDARDS OF CONDUCT IN THE LEGAL PROFESSION AND BY AIDING IN THE
EFFICIENT ADMINISTRATION OF JUSTICE." 

THE STATE SUPREME COURT HELD THAT THIS STATUTE WAS NOT BINDING UPON
IT BECAUSE "THE POWER TO INTEGRATE THE BAR IS AN INCIDENT TO THE
EXERCISE OF THE JUDICIAL POWER  ...  ."  INTEGRATION OF BAR CASE, 244
WIS. 8, 40, 11 N.W.2D 604, 619.  THE COURT TWICE REFUSED TO ORDER
INTEGRATION, 244 WIS. 8, 11 N.W.2D 604, 249 WIS. 523, 25 N.W.2D 500,
BEFORE TAKING THE ACTIONS CALLED IN QUESTION ON THIS APPEAL, 273 WIS.
281, 77 N.W.2D 602, 5 WIS. 2D 618, 93 N.W.2D 601.  NEVERTHELESS, THE
COURT IN REJECTING THE FIRST PETITION, 244 WIS., AT PP. 51-52, 11
N.W.2D, AT PP. 623-624, RECOGNIZED THAT ITS EXERCISE OF THE POWER TO
ORDER INTEGRATION OF THE BAR WOULD NOT BE ADJUDICATORY, BUT AN ACTION
IN ACCORD WITH AND IN IMPLEMENTATION OF THE LEGISLATIVE DECLARATION OF
PUBLIC POLICY.  (FN3)  THE COURT SAID: 

"IT IS OBVIOUS THAT WHETHER THE GENERAL WELFARE REQUIRES THAT THE BAR
BE TREATED AS A CORPORATE BODY IS A MATTER FOR THE CONSIDERATION OF THE
LEGISLATURE  ...  .  WHILE THE LEGISLATURE HAS NO CONSTITUTIONAL POWER
TO COMPEL THE COURT TO ACT OR, IF IT ACTS, TO ACT IN A PARTICULAR WAY
IN THE DISCHARGE OF THE JUDICIAL FUNCTION, IT MAY NEVERTHELESS WITH
PROPRIETY, AND IN THE EXERCISE OF ITS POWER AND THE DISCHARGE OF ITS
DUTY, DECLARE ITSELF UPON QUESTIONS RELATING TO THE GENERAL WELFARE
WHICH INCLUDES THE INTEGRATION OF THE BAR.  THE COURT, AS HAS BEEN
EXEMPLIFIED DURING THE ENTIRE HISTORY OF THE STATE, WILL RESPECT SUCH
DECLARATIONS AND, AS ALREADY INDICATED, ADOPT THEM SO FAR AS THEY DO
NOT EMBARRASS THE COURT OR IMPAIR ITS CONSTITUTIONAL FUNCTIONS." 

INTEGRATION OF THE BAR IN WISCONSIN BORE NO RESEMBLANCE TO
ADJUDICATION.  THE STATE SUPREME COURT'S ACTION DISPOSED OF NO
LITIGATION BETWEEN PARTIES.  RATHER THE COURT SOUGHT TO REGULATE THE
PROFESSION BY APPLYING ITS ORDERS TO ALL PRESENT MEMBERS OF THE BAR AND
TO ALL PERSONS COMING WITHIN THE DESCRIBED CLASS IN THE FUTURE.  CF.
HAMILTON V. REGENTS, SUPRA, P. 258; KING MANUFACTURING CO. V. CITY
COUNCIL, SUPRA, P. 104.  AS SUCH, THE ACTION HAD THE CHARACTERISTICS OF
LEGISLATION.  WE CONCLUDE THAT THE APPEAL IS COGNIZABLE UNDER SEC.
1257(2).  WE THEREFORE PROCEED TO THE CONSIDERATION OF THE MERITS. 

THE CORE OF APPELLANT'S ARGUMENT IS THAT HE CANNOT CONSTITUTIONALLY
BE COMPELLED TO JOIN AND GIVE SUPPORT TO AN ORGANIZATION WHICH HAS
AMONG ITS FUNCTIONS THE EXPRESSION OF OPINION ON LEGISLATIVE MATTERS
AND WHICH UTILIZES ITS PROPERTY, FUNDS AND EMPLOYEES FOR THE PURPOSES
OF INFLUENCING LEGISLATION AND PUBLIC OPINION TOWARD LEGISLATION. 
(FN4)  BUT HIS COMPULSORY ENROLLMENT IMPOSES ONLY THE DUTY TO PAY
DUES.  (FN5)  THE SUPREME COURT OF WISCONSIN SO INTERPRETED ITS ORDER
AND ITS INTERPRETATION IS OF COURSE BINDING ON US.  THE COURT SAID:
"THE RULES AND BY-LAWS OF THE STATE BAR, AS APPROVED BY THIS COURT, DO
NOT COMPEL THE PLAINTIFF TO ASSOCIATE WITH ANYONE.  HE IS FREE TO
ATTEND OR NOT ATTEND ITS MEETINGS OR VOTE IN ITS ELECTIONS AS HE
CHOOSES.  THE ONLY COMPULSION TO WHICH HE HAS BEEN SUBJECTED BY THE
INTEGRATION OF THE BAR IS THE PAYMENT OF THE ANNUAL DUES OF $15 PER
YEAR."  10 WIS. 2D, AT P. 237, 102 N.W.2D, AT P. 408.  (FN6)  WE
THEREFORE ARE CONFRONTED, AS WE WERE IN RAILWAY EMPLOYES' DEPARTMENT V.
HANSON, 351 U.S. 225, ONLY WITH A QUESTION OF COMPELLED FINANCIAL
SUPPORT OF GROUP ACTIVITIES, NOT WITH INVOLUNTARY MEMBERSHIP IN ANY
OTHER ASPECT.  CF. INTERNATIONAL ASSOCIATION OF MACHINISTS V. STREET,
DECIDED TODAY, ANTE, P. 740, AT PP. 748-749. 

A REVIEW OF THE ACTIVITIES OF THE STATE BAR AUTHORIZED UNDER THE
RULES AND BYLAWS IS NECESSARY TO DECISION.  THE PURPOSES OF THE
ORGANIZATION ARE STATED AS FOLLOWS IN RULE 1, SEC. 2:  "TO AID THE
COURTS IN CARRYING ON AND IMPROVING THE ADMINISTRATION OF JUSTICE; TO
FOSTER AND MAINTAIN ON THE PART OF THOSE ENGAGED IN THE PRACTICE OF LAW
HIGH IDEALS OF INTEGRITY, LEARNING, COMPETENCE AND PUBLIC SERVICE AND
HIGH STANDARDS OF CONDUCT; TO SAFEGUARD THE PROPER PROFESSIONAL
INTERESTS OF THE MEMBERS OF THE BAR; TO ENCOURAGE THE FORMATION AND
ACTIVITIES OF LOCAL BAR ASSOCIATIONS; TO PROVIDE A FORUM FOR THE
DISCUSSION OF SUBJECTS PERTAINING TO THE PRACTICE OF LAW, THE SCIENCE
OF JURISPRUDENCE AND LAW REFORM, AND THE RELATIONS OF THE BAR TO THE
PUBLIC, AND TO PUBLISH INFORMATION RELATING THERETO; TO THE END THAT
THE PUBLIC RESPONSIBILITIES OF THE LEGAL PROFESSION MAY BE MORE
EFFECTIVELY DISCHARGED."  TO ACHIEVE THESE PURPOSES STANDING COMMITTEES
AND SECTIONS ARE ESTABLISHED.  (FN7)  THE RULES ALSO ASSIGN THE
ORGANIZATION A MAJOR ROLE IN THE STATE'S PROCEDURES FOR THE DISCIPLINE
OF MEMBERS OF THE BAR FOR UNETHICAL CONDUCT.  A COMMITTEE ON GRIEVANCES
IS PROVIDED FOR EACH OF THE NINE DISTRICTS INTO WHICH THE STATE IS
DIVIDED.  EACH COMMITTEE RECEIVES AND INVESTIGATES COMPLAINTS OF
ALLEGED MISCONDUCT OF LAWYERS WITHIN ITS DISTRICT.  EACH COMMITTEE ALSO
INVESTIGATES AND PROCESSES PETITIONS FOR REINSTATEMENT OF LAWYERS AND
PETITIONS FOR LATE ENROLLMENT IN THE STATE BAR OF LAWYERS WHO FAIL TO
ENROLL WITHIN A DESIGNATED PERIOD AFTER BECOMING ELIGIBLE TO ENROLL. 

THE STATE LEGISLATURE AND THE STATE SUPREME COURT HAVE INFORMED US OF
THE PUBLIC INTEREST SOUGHT TO BE SERVED BY THE INTEGRATION OF THE BAR. 
THE STATUTE STATES ITS DESIRABILITY "TO THE END THAT SUCH ASSOCIATION
SHALL PROMOTE THE PUBLIC INTEREST BY MAINTAINING HIGH STANDARDS OF
CONDUCT IN THE LEGAL PROFESSION AND BY AIDING IN THE EFFICIENT
ADMINISTRATION OF JUSTICE."  THIS THEME IS ECHOED IN THE SEVERAL
SUPREME COURT OPINIONS.  THE FIRST OPINION AFTER THE PASSAGE OF THE
STATUTE NOTED THE "WIDESPREAD GENERAL RECOGNITION OF THE FACT THAT THE
CONDUCT OF THE BAR IS A MATTER OF GENERAL PUBLIC INTEREST AND
CONCERN."  244 WIS. 8, 16, 11 N.W.2D 604, 608.  BUT THE COURT'S
EXAMINATION AT THAT TIME OF EXISTING PROCEDURES GOVERNING ADMISSION AND
DISCIPLINE OF LAWYERS AND THE PREVENTION OF THE UNAUTHORIZED PRACTICE
OF THE LAW PERSUADED THE COURT THAT THE PUBLIC INTEREST WAS BEING
ADEQUATELY SERVED WITHOUT INTEGRATION.  THE SAME CONCLUSION WAS REACHED
WHEN THE MATTER WAS REVIEWED AGAIN IN 1946.  AT THAT TIME, IN ADDITION
TO REVIEWING THE DESIRABILITY OF INTEGRATION IN THE CONTEXT OF THE
PROBLEMS OF ADMISSION AND DISCIPLINE, THE COURT CONSIDERED ITS UTILITY
IN OTHER FIELDS.  THE MATTER OF POST-LAW SCHOOL OR POST-ADMISSION
EDUCATION OF LAWYERS WAS ONE OF THESE.  THE COURT BELIEVED, HOWEVER,
THAT WHILE AN EDUCATIONAL PROGRAM WAS A PROPER OBJECTIVE, THE ONE
PROPOSED WAS "NEBULOUS IN OUTLINE AND PROBABLY EXPENSIVE IN
EXECUTION."  249 WIS. 523, 530, 25 N.W.2D 500, 503.  THE COURT ALSO
OBSERVED, "THERE ARE DOUBTLESS MANY OTHER USEFUL ACTIVITIES FOR WHICH
DUES MIGHT PROPERLY BE USED, BUT WHAT THEY ARE DOES NOT OCCUR TO US AND
NO PARTICULAR ONE SEEMS TO PRESS FOR ACTION."  249 WIS. 523, 530, 25
N.W.2D 500, 503. 

THE COURT CONCLUDED IN 1956, HOWEVER, THAT INTEGRATION MIGHT SERVE
THE PUBLIC INTEREST AND SHOULD BE GIVEN A TWO-YEAR TRIAL.  (FN8)  IT
DECIDED TO "REQUIRE THE BAR TO ACT AS A UNIT TO PROMOTE HIGH STANDARDS
OF PRACTICE AND THE ECONOMICAL AND SPEEDY ENFORCEMENT OF LEGAL RIGHTS,"
273 WIS. 281, 283, 77 N.W.2D 602, 603, BECAUSE IT HAD COME TO THE
CONCLUSION THAT EFFORTS TO ACCOMPLISH THESE ENDS IN THE PUBLIC INTEREST
THROUGH VOLUNTARY ASSOCIATION HAD NOT BEEN EFFECTIVE.  "TOO MANY
LAWYERS HAVE REFRAINED OR REFUSED TO JOIN,  ...  MEMBERSHIP IN THE
VOLUNTARY ASSOCIATION HAS BECOME STATIC, AND ...  A SUBSTANTIAL
MINORITY OF THE LAWYERS IN THE STATE ARE NOT ASSOCIATED WITH THE STATE
BAR ASSOCIATION."  273 WIS. 281, 283, 77 N.W.2D 602, 603.  WHEN THE
ORDER WAS EXTENDED INDEFINITELY IN 1958 THE ACTION WAS EXPRESSLY
GROUNDED ON THE FINDING THAT, "MEMBERS OF THE LEGAL PROFESSION BY THEIR
ADMISSION TO THE BAR BECOME AN IMPORTANT PART OF (THE) PROCESS (OF
ADMINISTERING JUSTICE) ...  .  AN INDEPENDENT, ACTIVE, AND INTELLIGENT
BAR IS NECESSARY TO THE EFFICIENT ADMINISTRATION OF JUSTICE BY THE
COURTS."  5 WIS. 2D 618, 622, 93 N.W.2D 601, 603. 

THE APPELLANT ATTACKS THE POWER OF THE STATE TO ACHIEVE THESE GOALS
THROUGH INTEGRATION ON THE GROUND THAT BECAUSE OF ITS LEGISLATIVE
ACTIVITIES, THE STATE BAR PARTAKES OF THE CHARACTER OF A POLITICAL
PARTY.  BUT ON THEIR FACE THE PURPOSES AND THE DESIGNATED ACTIVITIES OF
THE STATE BAR HARDLY JUSTIFY THIS CHARACTERIZATION.  THE INCLUSION
AMONG ITS PURPOSES THAT IT BE A FORUM FOR A "DISCUSSION OF  ...  LAW
REFORM" AND ACTIVE IN SAFEGUARDING THE "PROPER PROFESSIONAL INTERESTS
OF, THE MEMBERS OF THE BAR," IN UNSPECIFIED WAYS, DOES NOT SUPPORT IT.
ONLY TWO OF THE 12 COMMITTEES, ADMINISTRATION OF JUSTICE, AND
LEGISLATION, ARE EXPRESSLY DIRECTED TO CONCERN THEMSELVES IN A
SUBSTANTIAL WAY WITH LEGISLATION.  AUTHORITY GRANTED THE OTHER
COMMITTEES DIRECTS THEM TO DEAL LARGELY WITH MATTERS WHICH APPEAR TO BE
WHOLLY OUTSIDE THE POLITICAL PROCESS AND TO CONCERN THE INTERNAL
AFFAIRS OF THE PROFESSION. 

WE DO NOT UNDERSTAND THE APPELLANT TO CONTEND THAT THE STATE BAR IS A
SHAM ORGANIZATION DELIBERATELY DESIGNED TO FURTHER A PROGRAM OF
POLITICAL ACTION.  NOR WOULD SUCH A CONTENTION FIND SUPPORT IN THIS
RECORD.  LEGISLATIVE ACTIVITY IS CARRIED ON UNDER A STATEMENT OF POLICY
WHICH FOLLOWED THE RECOMMENDATIONS OF A FORMER PRESIDENT OF THE
VOLUNTARY WISCONSIN BAR ASSOCIATION, ALFRED LAFRANCE.  HE RECOMMENDED
THAT THE LEGISLATIVE ACTIVITY OF THE STATE BAR SHOULD HAVE TWO DISTINCT
ASPECTS:  (1) "THE FIELD OF LEGISLATIVE REPORTING OR THE DISSEMINATION
OF INFORMATION CONCERNING LEGISLATIVE PROPOSALS  ...  .  THIS IS A
SERVICE-INFORMATION FUNCTION THAT IS BOTH USEFUL TO THE GENERAL
MEMBERSHIP AND TO THE LOCAL BAR ASSOCIATIONS"; AND (2) "PROMOTIONAL OR
POSITIVE LEGISLATIVE ACTIVITY."  AS TO THE LATTER HE ADVISED THAT "THE
RULE OF SUBSTANTIAL UNANIMITY SHOULD BE OBSERVED.  UNLESS THE LAWYERS
OF WISCONSIN ARE SUBSTANTIALLY FOR OR AGAINST A PROPOSAL, THE STATE BAR
SHOULD NEITHER SUPPORT NOR OPPOSE THE PROPOSAL."  WIS.  BAR BULL., AUG.
1957, PP. 41-42.  "WE MUST REMEMBER THAT WE ARE AN INTEGRATED BAR, THAT
THE VIEWS OF THE MINORITY MUST BE GIVEN ALONG WITH THE VIEWS OF THE
MAJORITY WHERE UNANIMITY DOES NOT APPEAR.  THE STATE BAR REPRESENTS ALL
OF THE LAWYERS OF THIS STATE AND IN THAT CAPACITY WE MUST SAFEGUARD THE
INTERESTS OF ALL."  ID., P. 44.  THE RULES OF POLICY AND PROCEDURE FOR
LEGISLATIVE ACTIVITY FOLLOW THESE RECOMMENDATIONS.  (FN9) 

UNDER ITS CHARTER OF LEGISLATIVE ACTION, THE STATE BAR HAS
PARTICIPATED IN POLITICAL ACTIVITIES IN THESE PRINCIPAL CATEGORIES: 

(1)  ITS EXECUTIVE DIRECTOR IS REGISTERED AS A LOBBYIST IN ACCORDANCE
WITH STATE LAW.  FOR THE LEGISLATIVE SESSION 1959-1960, THE STATE BAR
LISTED A $1,400 LOBBYING EXPENSE; THIS WAS A PERCENTAGE OF THE SALARY
OF THE EXECUTIVE DIRECTOR, BASED ON AN ESTIMATE OF THE TIME HE SPENT IN
SEEKING TO INFLUENCE LEGISLATION, AMOUNTING TO 5% OF HIS SALARY FOR THE
TWO YEARS.  THE REGISTRATION STATEMENT SIGNED BY THE THEN PRESIDENT OF
THE STATE BAR ADDED THE EXPLANATORY NOTE:  "HIS ACTIVITIES AS A
LOBBYIST ON BEHALF OF THE STATE BAR ARE INCIDENTAL TO HIS GENERAL WORK
AND OCCUPY ONLY A SMALL PORTION OF HIS TIME." 

(2)  THE STATE BAR, THROUGH ITS BOARD OF GOVERNORS OR EXECUTIVE
COMMITTEE, HAS TAKEN A FORMAL POSITION WITH RESPECT TO A NUMBER OF
QUESTIONS OF LEGISLATIVE POLICY.  THESE HAVE INCLUDED SUCH SUBJECTS AS
AN INCREASE IN THE SALARIES OF STATE SUPREME COURT JUSTICES; MAKING
ATTORNEYS NOTARIES PUBLIC; AMENDING THE FEDERAL CAREER COMPENSATION ACT
TO APPLY TO ATTORNEYS EMPLOYED WITH THE ARMED FORCES THE SAME
PROVISIONS FOR SPECIAL PAY AND PROMOTION AVAILABLE TO MEMBERS OF OTHER
PROFESSIONS; IMPROVING PAY SCALES OF ATTORNEYS IN STATE SERVICE; COURT
REORGANIZATION; EXTENDING PERSONAL JURISDICTION OVER NONRESIDENTS;
ALLOWING THE RECORDING OF UNWITNESSED CONVEYANCES; USE OF DECEASED
PARTNERS' NAMES IN FIRM NAMES; REVISION OF THE LAW GOVERNING FEDERAL
TAX LIENS; LAW CLERKS FOR STATE SUPREME COURT JUSTICES; CURTESY AND
DOWER; SECURITIES TRANSFERS BY FIDUCIARIES; JURISDICTION OF COUNTY
COURTS OVER THE ADMINISTRATION OF INTER VIVOS TRUSTS; SPECIAL
APPROPRIATIONS FOR RESEARCH FOR THE STATE LEGISLATIVE COUNCIL. 

(3)  THE STANDING COMMITTEES, PARTICULARLY THE COMMITTEES ON
LEGISLATION AND ADMINISTRATION OF JUSTICE, AND THE SECTIONS HAVE
DEVOTED CONSIDERABLE TIME TO THE STUDY OF LEGISLATION, THE FORMULATION
OF RECOMMENDATIONS, AND THE SUPPORT OF VARIOUS PROPOSALS.  FOR EXAMPLE,
THE PRESIDENT REPORTED IN 1960 THAT THE COMMITTEE ON LEGISLATION "HAS
BEEN EXTREMELY BUSY, AND THROUGH ITS EFFORTS IN COOPERATION WITH OTHER
INTERESTED AGENCIES HAS BEEN INSTRUMENTAL IN SECURING THE PASSAGE OF
THE COURT REORGANIZATION BILL, THE BILL OF THE JUDICIAL COUNCIL
EXPANDING PERSONAL JURISDICTION, AND AT THIS RECENTLY RESUMED SESSION A
BILL PROVIDING CLERKS FOR OUR SUPREME COURT, AND OTHER BILLS OF
IMPORTANCE TO THE ADMINISTRATION OF JUSTICE."  WIS. BAR BULL., AUG.
1960, P. 41.  SEE ALSO ID., JUNE 1959, PP. 64-65.  A NEW SUBCOMMITTEE,
ON FEDERAL LEGISLATION, WAS SET UP BY THIS COMMITTEE FOLLOWING A STUDY
WHICH FOUND NEED FOR SUCH A GROUP "TO DEAL WITH FEDERAL LEGISLATION
AFFECTING THE PRACTICE OF LAW, OR LAWYERS AS A CLASS, OR THE
JURISDICTION, PROCEDURE AND PRACTICE OF THE FEDERAL COURTS AND OTHER
FEDERAL TRIBUNALS, OR CREATION OF NEW FEDERAL COURTS OR JUDGESHIPS
AFFECTING THIS STATE, AND COMPARABLE SUBJECTS  ...  ."  BOARD OF
GOVERNORS MINUTES, DEC. 11, 1959.  FURTHERMORE, LEGISLATIVE
RECOMMENDATIONS AND ACTIVITIES HAVE NOT BEEN CONFINED TO THOSE STANDING
COMMITTEES WITH THE EXPRESS FUNCTION IN THE BYLAWS OF CONSIDERING
LEGISLATIVE PROPOSALS.  SEE, E.G., REPORT OF THE COMMITTEE ON LEGAL
AID, WIS. BAR BULL., JUNE 1960, P. 61; REPORT OF THE COMMITTEE ON LEGAL
AID, ID., JUNE 1959, PP. 61-62.  MANY OF THE POSITIONS ON LEGISLATION
TAKEN ON BEHALF OF THE STATE BAR BY THE BOARD OF GOVERNORS OR THE
EXECUTIVE COMMITTEE HAVE ALSO FOLLOWED STUDIES AND RECOMMENDATIONS BY
THE SECTIONS.   SEE, E.G., REPORT OF THE REAL PROPERTY, PROBATE AND
TRUST LAW SECTION, WIS. BAR BULL., JUNE 1960, P. 51; REPORT OF THE
CORPORATION AND BUSINESS LAW SECTION, ID., P. 56. 

(4)  A NUMBER OF SPECIAL COMMITTEES HAVE BEEN CONSTITUTED, EITHER AD
HOC TO CONSIDER PARTICULAR LEGISLATIVE PROPOSALS, OR TO PERFORM
CONTINUING FUNCTIONS WHICH MAY INVOLVE THE CONSIDERATION OF
LEGISLATION.  THUS SPECIAL COMMITTEES HAVE CONSIDERED SUCH SUBJECTS AS
EXTENSION OF PERSONAL JURISDICTION OVER NONRESIDENTS, LAW CLERKS FOR
STATE SUPREME COURT JUSTICES, AND REVISION OF THE FEDERAL TAX LIEN
LAWS.  THE SPECIAL COMMITTEE ON WORLD PEACE THROUGH LAW, WHICH HAS
ENCOURAGED THE FORMATION OF SIMILAR COMMITTEES ON THE LOCAL LEVEL, HAS
SPONSORED DEBATES ON SUBJECTS SUCH AS THE REPEAL OF THE CONNALLY
RESERVATION, BELIEVING THAT "THE GENERAL KNOWLEDGE OF LAYMEN AS WELL AS
OF LAWYERS CONCERNING THE POSSIBILITY OF WORLD PEACE THROUGH LAW IS
LIMITED AND REQUIRES A CONSTANT PROGRAM OF EDUCATION AND DISCUSSION." 
WIS. BAR BULL., JUNE 1960, P. 54. 

(5)  THE WISCONSIN BAR BULLETIN, SENT TO EACH MEMBER, PRINTS ARTICLES
SUGGESTING CHANGES IN STATE AND FEDERAL LAW.  AND OTHER PUBLICATIONS OF
THE STATE BAR DEAL WITH THE PROGRESS OF LEGISLATION. 

BUT IT SEEMS PLAIN THAT LEGISLATIVE ACTIVITY IS NOT THE MAJOR
ACTIVITY OF THE STATE BAR.  THE ACTIVITIES WITHOUT APPARENT POLITICAL
COLORATION ARE MANY.  THE SUPREME COURT PROVIDED IN AN APPENDIX TO THE
OPINION BELOW, "AN ANALYSIS OF (STATE BAR)  ...  ACTIVITIES AND THE
PUBLIC PURPOSE SERVED THEREBY."  10 WIS. 2D, AT P. 246, 102 N.W.2D, AT
P. 412.  THE COURT FOUND THAT "THE MOST EXTENSIVE ACTIVITIES OF THE
STATE BAR ARE THOSE DIRECTED TOWARD POSTGRADUATE EDUCATION OF LAWYERS,"
AND THAT "POSTGRADUATE EDUCATION OF LAWYERS IS IN THE PUBLIC INTEREST
BECAUSE IT PROMOTES THE COMPETENCY OF LAWYERS TO HANDLE THE LEGAL
MATTERS ENTRUSTED TO THEM BY THOSE OF THE GENERAL PUBLIC WHO EMPLOY
THEM."  10 WIS. 2D, AT P. 246, 102 N.W.2D, AT PP. 412-413.  (FN10)  IT
FOUND THAT THE STATE BAR'S PARTICIPATION IN THE HANDLING OF GRIEVANCES
IMPROVED THE EFFICIENCY AND EFFECTIVENESS OF THIS WORK.  (FN11)  IT
FOUND THAT THE PUBLIC INTEREST WAS FURTHERED BY THE COMMITTEE ON
UNAUTHORIZED PRACTICE OF LAW WHICH WAS CARRYING ON "A CONSTANT PROGRAM
SINCE NUMEROUS TRADES AND OCCUPATIONS KEEP EXPANDING THEIR SERVICES AND
FREQUENTLY START OFFERING SERVICES WHICH CONSTITUTE THE PRACTICE OF THE
LAW."  10 WIS. 2D, AT P. 248, 102 N.W.2D, AT P. 413.  (FN12)  THE COURT
ALSO CONCLUDED THAT THE LEGAL AID COMMITTEE HAD "DONE EFFECTIVE AND
NOTEWORTHY WORK TO ENCOURAGE THE LOCAL BAR ASSOCIATIONS OF THE STATE TO
SET UP LEGAL-AID SYSTEMS IN THEIR LOCAL COMMUNITIES  ...  .  SUCH
COMMITTEE HAS ALSO OUTLINED RECOMMENDED PROCEDURES FOR ESTABLISHING AND
CARRYING THROUGH SUCH SYSTEMS OF PROVIDING LEGAL AID."  10 WIS. 2D, AT
P. 249, 102 N.W.2D, AT P. 414.  (FN13)  IN THE FIELD OF PUBLIC
RELATIONS THE COURT FOUND THAT THE "CHIEF ACTIVITY" OF THE STATE BAR
WAS THE "PREPARATION, PUBLICATION, AND DISTRIBUTION TO THE GENERAL
PUBLIC OF PAMPHLETS DEALING WITH VARIOUS TRANSACTIONS AND HAPPENINGS
WITH WHICH LAYMEN ARE FREQUENTLY CONFRONTED, WHICH EMBODY LEGAL
PROBLEMS."  10 WIS. 2D, AT P. 247, 102 N.W.2D, AT P. 413.  (FN14)
MOREOVER, A NUMBER OF STUDIES HAVE BEEN MADE OF PROGRAMS, NOT INVOLVING
POLITICAL ACTION, TO FURTHER THE ECONOMIC WELL-BEING OF THE
PROFESSION.  (FN15) 

THIS EXAMINATION OF THE PURPOSES AND FUNCTIONS OF THE STATE BAR SHOWS
ITS MULTIFACETED CHARACTER, IN FACT AS WELL AS IN CONCEPTION.  IN OUR
VIEW THE CASE PRESENTS A CLAIM OF IMPINGEMENT UPON FREEDOM OF
ASSOCIATION NO DIFFERENT FROM THAT WHICH WE DECIDED IN RAILWAY
EMPLOYES' DEPT. V. HANSON, 351 U.S. 225.  WE THERE HELD THAT SEC. 2,
ELEVENTH OF THE RAILWAY LABOR ACT, 45 U.S.C. SEC. 152, ELEVENTH, DID
NOT ON ITS FACE ABRIDGE PROTECTED RIGHTS OF ASSOCIATION IN AUTHORIZING
UNION-SHOP AGREEMENTS BETWEEN INTERSTATE RAILROADS AND UNIONS OF THEIR
EMPLOYEES CONDITIONING THE EMPLOYEES' CONTINUED EMPLOYMENT ON PAYMENT
OF UNION DUES, INITIATION FEES AND ASSESSMENTS.  THERE TOO THE RECORD
INDICATED THAT THE ORGANIZATIONS ENGAGED IN SOME ACTIVITIES SIMILAR TO
THE LEGISLATIVE ACTIVITIES OF WHICH THE APPELLANT COMPLAINS.  SEE
INTERNATIONAL ASSOCIATION OF MACHINISTS V. STREET, ANTE, P. 748, NOTE
5.  IN REJECTING HANSON'S CLAIM OF ABRIDGMENT OF HIS RIGHTS OF FREEDOM
OF ASSOCIATION, WE SAID, "ON THE PRESENT RECORD, THERE IS NO MORE AN
INFRINGEMENT OR IMPAIRMENT OF FIRST AMENDMENT RIGHTS THAN THERE WOULD
BE IN THE CASE OF A LAWYER WHO BY STATE LAW IS REQUIRED TO BE A MEMBER
OF AN INTEGRATED BAR."  351 U.S., AT 238.  BOTH IN PURPORT AND IN
PRACTICE THE BULK OF STATE BAR ACTIVITIES SERVE THE FUNCTION, OR AT
LEAST SO WISCONSIN MIGHT REASONABLY BELIEVE, OF ELEVATING THE
EDUCATIONAL AND ETHICAL STANDARDS OF THE BAR TO THE END OF IMPROVING
THE QUALITY OF THE LEGAL SERVICE AVAILABLE TO THE PEOPLE OF THE STATE,
WITHOUT ANY REFERENCE TO THE POLITICAL PROCESS.  IT CANNOT BE DENIED
THAT THIS IS A LEGITIMATE END OF STATE POLICY.  (FN16)  WE THINK THAT
THE SUPREME COURT OF WISCONSIN, IN ORDER TO FURTHER THE STATE'S
LEGITIMATE INTERESTS IN RAISING THE QUALITY OF PROFESSIONAL SERVICES,
MAY CONSTITUTIONALLY REQUIRE THAT THE COSTS OF IMPROVING THE PROFESSION
IN THIS FASHION SHOULD BE SHARED BY THE SUBJECTS AND BENEFICIARIES OF
THE REGULATORY PROGRAM, THE LAWYERS, EVEN THOUGH THE ORGANIZATION
CREATED TO ATTAIN THE OBJECTIVE ALSO ENGAGES IN SOME LEGISLATIVE
ACTIVITY.  GIVEN THE CHARACTER OF THE INTEGRATED BAR SHOWN ON THIS
RECORD, IN THE LIGHT OF THE LIMITATION OF THE MEMBERSHIP REQUIREMENT TO
THE COMPULSORY PAYMENT OF REASONABLE ANNUAL DUES, WE ARE UNABLE TO FIND
ANY IMPINGEMENT UPON PROTECTED RIGHTS OF ASSOCIATION.    HOWEVER,
APPELLANT WOULD HAVE US GO FARTHER AND DECIDE WHETHER HIS
CONSTITUTIONAL RIGHTS OF FREE SPEECH ARE INFRINGED IF HIS DUES MONEY IS
USED TO SUPPORT THE POLITICAL ACTIVITIES OF THE STATE BAR.   THE STATE
SUPREME COURT TREATED THE CASE AS RAISING THE QUESTION WHETHER FIRST
AMENDMENT RIGHTS WERE VIOLATED "BECAUSE PART OF HIS DUES MONEY IS USED
TO SUPPORT CAUSES TO WHICH HE IS OPPOSED."  10 WIS. 2D, AT P. 238, 102
N.W.2D, AT P. 409.  THE COURT IN REJECTING APPELLANT'S ARGUMENT
REASONED THAT "THE RIGHT TO PRACTICE LAW IS NOT A RIGHT BUT IS A
PRIVILEGE SUBJECT TO REGULATION  ...  .  THE ONLY LIMITATION UPON THE
STATE'S POWER TO REGULATE THE PRIVILEGE OF THE PRACTICE OF LAW IS THAT
THE REGULATIONS ADOPTED DO NOT IMPOSE AN UNCONSTITUTIONAL BURDEN OR
DENY DUE PROCESS."  10 WIS. 2D, AT PP. 237-238, 102 N.W.2D, AT P. 408. 
THE COURT FOUND NO SUCH BURDEN BECAUSE "  ...  THE PUBLIC WELFARE WILL
BE PROMOTED BY SECURING AND PUBLICIZING THE COMPOSITE JUDGMENT OF THE
MEMBERS OF THE BAR OF THE STATE ON MEASURES DIRECTLY AFFECTING THE
ADMINISTRATION OF JUSTICE AND THE PRACTICE OF LAW.  THE GENERAL PUBLIC
AND THE LEGISLATURE ARE ENTITLED TO KNOW HOW THE PROFESSION AS A WHOLE
STANDS ON SUCH TYPE OF PROPOSED LEGISLATION  ...  .  THE ONLY
CHALLENGED INTERFERENCE WITH HIS LIBERTY IS THE EXACTION OF ANNUAL DUES
TO THE STATE BAR, IN THE NATURE OF THE IMPOSITION OF AN ANNUAL LICENSE
FEE, NOT UNREASONABLE OR UNDULY BURDENSOME IN AMOUNT, PART OF WHICH IS
USED TO ADVOCATE CAUSES TO WHICH HE IS OPPOSED.  HOWEVER, THIS COURT,
IN WHICH IS VESTED THE POWER OF THE STATE TO REGULATE THE PRACTICE OF
LAW, HAS DETERMINED THAT IT PROMOTES THE PUBLIC INTEREST TO HAVE PUBLIC
EXPRESSION OF THE VIEWS OF A MAJORITY OF THE LAWYERS OF THE STATE, WITH
RESPECT TO LEGISLATION AFFECTING THE ADMINISTRATION OF JUSTICE AND THE
PRACTICE OF LAW, THE SAME TO BE VOICED THROUGH THEIR OWN DEMOCRATICALLY
CHOSEN REPRESENTATIVES COMPRISING THE BOARD OF GOVERNORS OF THE STATE
BAR.  THE PUBLIC INTEREST SO PROMOTED FAR OUTWEIGHS THE SLIGHT
INCONVENIENCE TO THE PLAINTIFF RESULTING FROM HIS REQUIRED PAYMENT OF
THE ANNUAL DUES."  10 WIS. 2D, AT PP. 239, 242, 102 N.W.2D, AT PP. 409,
411.  (FN17) 

WE ARE PERSUADED THAT ON THIS RECORD WE HAVE NO SOUND BASIS FOR
DECIDING APPELLANT'S CONSTITUTIONAL CLAIM INSOFAR AS IT RESTS ON THE
ASSERTION THAT HIS RIGHTS OF FREE SPEECH ARE VIOLATED BY THE USE OF HIS
MONEY FOR CAUSES WHICH HE OPPOSES.  EVEN IF THE DEMURRER IS TAKEN AS
ADMITTING ALL THE FACTUAL ALLEGATIONS OF THE COMPLAINT, EVEN IF THESE
ALLEGATIONS ARE CONSTRUED MOST EXPANSIVELY, AND EVEN IF, LIKE THE
WISCONSIN SUPREME COURT, WE TAKE JUDICIAL NOTICE OF THE POLITICAL
ACTIVITIES OF THE STATE BAR, STILL WE THINK THAT THE ISSUE OF
IMPINGEMENT UPON RIGHTS OF FREE SPEECH THROUGH THE USE OF EXACTED DUES
IS NO MORE CONCRETELY PRESENTED FOR ADJUDICATION THAN IT WAS IN
HANSON.  COMPARE INTERNATIONAL ASSOCIATION OF MACHINISTS V. STREET,
ANTE, P. 740, AT PP. 747-749.  NOWHERE ARE WE CLEARLY APPRISED AS TO
THE VIEWS OF THE APPELLANT ON ANY PARTICULAR LEGISLATIVE ISSUES ON
WHICH THE STATE BAR HAS TAKEN A POSITION, OR AS TO THE WAY IN WHICH AND
THE DEGREE TO WHICH FUNDS COMPULSORILY EXACTED FROM ITS MEMBERS ARE
USED TO SUPPORT THE ORGANIZATION'S POLITICAL ACTIVITIES.  THERE IS AN
ALLEGATION IN THE COMPLAINT THAT THE STATE BAR HAD "USED ITS EMPLOYEES,
PROPERTY AND FUNDS IN ACTIVE, UNSOLICITED OPPOSITION TO THE ADOPTION OF
LEGISLATION BY THE LEGISLATURE OF THE STATE OF WISCONSIN, WHICH WAS
FAVORED BY THE PLAINTIFF, ALL CONTRARY TO THE PLAINTIFF'S CONVICTIONS
AND BELIEFS," BUT THERE IS NO INDICATION OF THE NATURE OF THIS
LEGISLATION, NOR OF APPELLANT'S VIEWS ON PARTICULAR PROPOSALS, NOR OF
WHETHER ANY OF HIS DUES WERE USED TO SUPPORT THE STATE BAR'S
POSITIONS.  THERE IS AN ALLEGATION THAT THE STATE BAR'S REVENUES AMOUNT
TO ABOUT $90,000 A YEAR, OF WHICH $80,000 IS DERIVED FROM DUES, BUT
THERE IS NO INDICATION IN THE RECORD AS TO HOW POLITICAL EXPENDITURES
ARE FINANCED AND HOW MUCH HAS BEEN EXPENDED FOR POLITICAL CAUSES TO
WHICH APPELLANT OBJECTS.  THE FACTS OF WHICH THE SUPREME COURT TOOK
JUDICIAL NOTICE DO NOT ENLIGHTEN US ON THESE GAPS IN THE RECORD.  THE
MINUTES OF THE BOARD OF GOVERNORS AND EXECUTIVE COMMITTEE OF THE STATE
BAR SHOW THAT THE ORGANIZATION HAS TAKEN ONE POSITION OR ANOTHER ON A
WIDE VARIETY OF ISSUES, BUT THOSE MINUTES GIVE NO INDICATION OF
APPELLANT'S VIEWS AS TO ANY OF SUCH ISSUES OR OF WHAT PORTIONS OF THE
EXPENDITURE OF FUNDS TO PROPAGATE THE STATE BAR'S VIEWS MAY BE PROPERLY
APPORTIONED TO HIS DUES PAYMENTS.  NOR DO THE OTHER PUBLICATIONS OF THE
STATE BAR.  THE SUPREME COURT ASSUMED, AS APPARENTLY THE TRIAL COURT
DID IN PASSING ON THE DEMURRER, THAT THE APPELLANT WAS PERSONALLY
OPPOSED TO SOME OF THE LEGISLATION SUPPORTED BY THE STATE BAR.  BUT ITS
OPINION STILL GAVE NO DESCRIPTION OF ANY SPECIFIC MEASURES HE OPPOSED,
OR THE EXTENT TO WHICH THE STATE BAR ACTUALLY UTILIZED DUES FUNDS FOR
SPECIFIC PURPOSES TO WHICH HE HAD OBJECTED.  APPELLANT'S PHRASING OF
THE QUESTION PRESENTED ON APPEAL IN THIS COURT IS NOT RESPONSIVE TO ANY
OF THESE INQUIRIES AS TO FACTS WHICH MAY BE RELEVANT TO THE
DETERMINATION OF CONSTITUTIONAL QUESTIONS SURROUNDING THE POLITICAL
EXPENDITURES.  IT MERELY ASKS WHETHER A REQUIREMENT OF FINANCIAL
SUPPORT OF AN ASSOCIATION WHICH, "AMONG OTHER THINGS, USES ITS
PROPERTY, FUNDS AND EMPLOYEES FOR THE PURPOSE OF INFLUENCING A BROAD
RANGE OF LEGISLATION AND PUBLIC OPINION" CAN BE CONSTITUTIONALLY
IMPOSED ON HIM.  THIS STATEMENT OF THE QUESTION, JUST AS DOES HIS
COMPLAINT, APPEARS MORE A CLAIM OF THE RIGHT TO BE FREE FROM COMPELLED
FINANCIAL SUPPORT OF THE ORGANIZATION BECAUSE OF ITS POLITICAL
ACTIVITIES, THAN A CHALLENGE BY APPELLANT TO THE USE OF HIS DUES MONEY
FOR PARTICULAR POLITICAL CAUSES OF WHICH HE DISAPPROVES.  MOREOVER,
ALTHOUGH THE COURT BELOW PURPORTED TO DECIDE AS AGAINST ALL FOURTEENTH
AMENDMENT CLAIMS THAT THE APPELLANT COULD BE COMPELLED TO PAY HIS
ANNUAL DUES, EVEN THOUGH "PART ...  IS USED TO SUPPORT CAUSES TO WHICH
HE IS OPPOSED," ON ORAL ARGUMENT HERE APPELLANT DISCLAIMED ANY
NECESSITY TO SHOW THAT HE HAD OPPOSED THE POSITION OF THE STATE BAR ON
ANY PARTICULAR ISSUE AND ASSERTED THAT IT WAS SUFFICIENT THAT HE
OPPOSED THE USE OF HIS MONEY FOR ANY POLITICAL PURPOSES AT ALL.  IN
VIEW OF THE STATE OF RECORD AND THIS DISCLAIMER, WE THINK THAT WE WOULD
NOT BE JUSTIFIED IN PASSING ON THE CONSTITUTIONAL QUESTION CONSIDERED
BELOW.  "THE QUESTIONS INVOLVING THE POWER OF  ...  (THE STATE) COME
HERE NOT SO SHAPED BY THE RECORD AND BY THE PROCEEDINGS BELOW AS TO
BRING THOSE POWERS BEFORE THIS COURT AS LEANLY AND AS SHARPLY AS
JUDICIAL JUDGMENT UPON AN EXERCISE OF  ... (STATE) POWER REQUIRES." 
UNITED STATES V. C.I.O., 335 U.S. 106, 126 (CONCURRING OPINION).  CF.
UNITED STATES V. U.A.W.-C.I.O., 352 U.S. 567, 589-592. 

WE, THEREFORE, INTIMATE NO VIEW AS TO THE CORRECTNESS OF THE
CONCLUSION OF THE WISCONSIN SUPREME COURT THAT THE APPELLANT MAY
CONSTITUTIONALLY BE COMPELLED TO CONTRIBUTE HIS FINANCIAL SUPPORT TO
POLITICAL ACTIVITIES WHICH HE OPPOSES.  THAT ISSUE IS RESERVED, JUST AS
IT WAS IN HANSON, SEE INTERNATIONAL ASSOCIATION OF MACHINISTS V.
STREET, ANTE, P. 740, AT 746-749.  UPON THIS UNDERSTANDING WE FOUR VOTE
TO AFFIRM.  SINCE THREE OF OUR COLLEAGUES ARE OF THE VIEW THAT THE
CLAIM WHICH WE DO NOT DECIDE IS PROPERLY HERE AND HAS NO MERIT, AND ON
THAT GROUND VOTE TO AFFIRM, THE JUDGMENT OF THE WISCONSIN SUPREME COURT
IS AFFIRMED. 

FN1  HE ALSO DEMURRED ON GROUNDS THAT THE CIRCUIT COURT HAD NO
JURISDICTION OF THE SUBJECT MATTER BECAUSE EXCLUSIVE JURISDICTION WAS
VESTED IN THE SUPREME COURT AND THAT THERE WAS A DEFECT OF PARTIES
BECAUSE THE STATE BAR WAS NOT MADE A DEFENDANT. 

FN2  WE ALSO CONSIDER THE CASE ON THIS EXPANDED RECORD.  APPELLANT
RAISES NO OBJECTION, AND INDEED URGES US TO DO SO. 

FN3  THE COURT'S ACTION WAS IN RESPONSE TO A PETITION FOR
"INTEGRATION  ...  IN THE MANNER DESCRIBED" IN WIS. REV. STATS. SEC.
256.31.  WIS. BAR BULL., APR. 1956, P. 21.  THE RESOLUTION OF THE HOUSE
OF GOVERNORS OF THE WISCONSIN BAR ASSOCIATION LEADING TO THE FILING OF
THE PETITION REFERRED TO "INTEGRATION  ...  PURSUANT TO THE PROVISIONS
OF SECTION 256.31 OF THE WISCONSIN STATUTES."  ID., P. 52.  IN MANY
OTHER STATES INTEGRATION WAS INITIALLY ACCOMPLISHED EITHER ENTIRELY BY
THE LEGISLATURE OR BY A COMBINATION OF LEGISLATIVE AND JUDICIAL
ACTION.  SEE N.D. LAWS 1921, C. 25; ALA. LAWS 1923, NO. 133; IDAHO LAWS
1923, C. 211; N.M. LAWS 1925, C. 100; CAL. STAT. 1927, C. 34; NEV.
STAT. 1928, C. 13; OKLA. LAWS 1929, C. 264; UTAH LAWS 1931, C. 48; S.D.
LAWS 1931, C. 84; ARIZ. LAWS 1933, C. 66; WASH. LAWS 1933, C. 94; N.C.
LAWS 1933, C. 210; LA. ACTS 1934, 2D EXTRA SESS., NO. 10; KY. ACTS
1934, C. 3; ORE.  LAWS 1935, C. 28; MICH. ACTS 1935, NO. 58; VA. ACTS
1938, C. 410; TEX. GEN. LAWS 1939, P. 64; W.VA. ACTS 1945, C. 44;
ALASKA LAWS 1955, C. 196. 

FN4  APPELLANT'S NOTICE OF APPEAL PRESENTS THE FOLLOWING QUESTION FOR
OUR REVIEW: 

"DO THE ORDERS AND RULES OF THE SUPREME COURT OF THE STATE OF
WISCONSIN  ...  AND THE RULES AND BY-LAWS WHICH WERE PROMULGATED
THEREBY DEPRIVE THE APPELLANT  ...  OF HIS RIGHTS OF FREEDOM OF
ASSOCIATION, ASSEMBLY, SPEECH, PRESS, CONSCIENCE AND THOUGHT, OR OF HIS
LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW OR DENY TO HIM EQUAL
PROTECTION OF THE LAW OR OTHERWISE DEPRIVE HIM OF RIGHTS UNDER THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES BY
COMPELLING HIM, AS A CONDITION TO HIS RIGHT TO CONTINUE TO PRACTICE LAW
IN THE STATE OF WISCONSIN, TO BE A MEMBER OF AND FINANCIALLY SUPPORT AN
ASSOCIATION OF ATTORNEYS KNOWN AS THE STATE BAR OF WISCONSIN, WHICH
ASSOCIATION  ...  AMONG OTHER THINGS, USES ITS PROPERTY, FUNDS AND
EMPLOYEES FOR THE PURPOSE OF INFLUENCING A BROAD RANGE OF LEGISLATION
AND PUBLIC OPINION; AND, THEREFORE, ARE SAID ORDERS, RULES AND BY-LAWS,
INSOFAR AS THEY COERCE THE APPELLANT TO BE A MEMBER OF AND SUPPORT SAID
ASSOCIATION, INVALID ON THE GROUND THAT THEY ARE REPUGNANT TO THE
CONSTITUTION OF THE UNITED STATES?" 

FN5  THE RULES LIMIT THE MAXIMUM PERMISSIBLE DUES TO $20 A YEAR. 

FN6  A MEMBER SUSPENDED FOR NONPAYMENT OF DUES MAY SECURE AUTOMATIC
REINSTATEMENT, SO LONG AS HIS DUES ARE NOT IN ARREARAGE FOR THREE OR
MORE YEARS, BY MAKING FULL PAYMENT OF THE AMOUNT AND PAYING AN
ADDITIONAL $5 AS A PENALTY.  NO OTHER CONDITION ON ACQUIRING OR
RETAINING MEMBERSHIP IS IMPOSED BY THE RULES OR BYLAWS.  ALTHOUGH THE
STATE BAR PARTICIPATES IN THE INVESTIGATION OF COMPLAINTS OF
MISCONDUCT, SEE PP. 829-832, INFRA, FINAL POWER TO DISBAR OR OTHERWISE
DISCIPLINE ANY MEMBER RESIDES IN THE SUPREME COURT. 

THE RULES ALSO MAKE THE CANONS OF ETHICS OF THE AMERICAN BAR
ASSOCIATION, AS MODIFIED OR SUPPLEMENTED BY THE SUPREME COURT OF
WISCONSIN, "THE STANDARDS GOVERNING THE PRACTICE OF LAW IN THIS
STATE."  BUT APPELLANT MAKES NO CLAIM THAT THE STATE LACKS POWER TO
IMPOSE ON HIM A DUTY TO ABIDE BY THESE CANONS. 

FN7  THE COMMITTEES AND THEIR ASSIGNED FUNCTIONS ARE AS FOLLOWS: 

"LEGAL EDUCATION AND BAR ADMISSIONS.  - THIS COMMITTEE SHALL MAKE
CONTINUING STUDIES OF THE CURRICULA AND TEACHING METHODS EMPLOYED IN
LAW SCHOOLS, AND OF STANDARDS AND METHODS EMPLOYED IN DETERMINING THE
QUALIFICATIONS OF APPLICANTS FOR ADMISSION TO THE BAR; AND WHENEVER
REQUESTED BY THE STATE BAR COMMISSIONERS SHALL ASSIST IN THE
INVESTIGATION OF THE QUALIFICATIONS OF PERSONS SEEKING ADMISSION TO THE
BAR. 

"POST-GRADUATE EDUCATION.  - THIS COMMITTEE SHALL FORMULATE AND
PROMOTE PROGRAMS DESIGNED TO AFFORD TO THE MEMBERS OF THE STATE BAR
SUITABLE OPPORTUNITIES FOR ACQUIRING ADDITIONAL PROFESSIONAL KNOWLEDGE,
TRAINING, AND SKILL, THROUGH PUBLICATIONS, LECTURES, AND DISCUSSIONS AT
REGIONAL MEETINGS OF ASSOCIATION MEMBERS AND LAW INSTITUTES, AND
THROUGH CORRESPONDENCE COURSE STUDY. 

"ADMINISTRATION OF JUSTICE.  - THIS COMMITTEE SHALL STUDY THE
ORGANIZATION AND OPERATION OF THE WISCONSIN JUDICIAL SYSTEM AND SHALL
RECOMMEND FROM TIME TO TIME APPROPRIATE CHANGES IN PRACTICE AND
PROCEDURE FOR IMPROVING THE EFFICIENCY THEREOF; AND IN THAT CONNECTION
SHALL EXAMINE ALL LEGISLATIVE PROPOSALS FOR CHANGES IN THE JUDICIAL
SYSTEM. 

"JUDICIAL SELECTION.  - THIS COMMITTEE SHALL STUDY AND COLLECT
INFORMATION PERTAINING TO JUDICIAL SELECTION, TENURE, AND COMPENSATION,
INCLUDING RETIREMENT PENSIONS, AND SHALL REPORT FROM TIME TO TIME TO
THE ASSOCIATION WITH RESPECT THERETO. 

"PROFESSIONAL ETHICS.  - THIS COMMITTEE SHALL FORMULATE AND RECOMMEND
STANDARDS AND METHODS FOR THE EFFECTIVE ENFORCEMENT OF HIGH STANDARDS
OF ETHICS AND CONDUCT IN THE PRACTICE OF LAW; SHALL CONSIDER THE CANONS
OF ETHICS OF THE LEGAL PROFESSION AND THE OBSERVANCE THEREOF, AND SHALL
MAKE RECOMMENDATIONS FOR APPROPRIATE AMENDMENTS THERETO.  THE COMMITTEE
SHALL HAVE AUTHORITY TO EXPRESS OPINIONS REGARDING PROPER PROFESSIONAL
CONDUCT, UPON WRITTEN REQUEST OF ANY MEMBER OR OFFICER OF THE STATE
BAR. 

"PUBLIC SERVICES.  - THIS COMMITTEE SHALL PREPARE AND PRESENT TO THE
BOARD OF GOVERNORS PLANS FOR ADVANCING PUBLIC ACCEPTANCE OF THE OBJECTS
AND PURPOSES OF THE ASSOCIATION; AND SHALL HAVE RESPONSIBILITY FOR THE
EXECUTION OF SUCH PLANS AS ARE APPROVED BY THE BOARD OF GOVERNORS. 
SUCH PLANS SHALL INCLUDE ARRANGEMENTS FOR DISSEMINATING INFORMATION OF
INTEREST TO THE PUBLIC IN RELATION TO THE FUNCTIONS OF THE DEPARTMENTS
OF GOVERNMENT, THE JUDICIAL SYSTEM AND THE BAR; AND TO THAT END THE
COMMITTEE MAY OPERATE A SPEAKERS' BUREAU AND EMPLOY THE FACILITIES OF
THE PUBLIC PRESS AND OTHER CHANNELS OF PUBLIC COMMUNICATIONS. 

"INTERPROFESSIONAL AND BUSINESS RELATIONS.  - IT SHALL BE THE DUTY OF
THIS COMMITTEE TO SERVE AS A LIAISON AGENCY BETWEEN THE LEGAL
PROFESSION AND OTHER PROFESSIONS AND GROUPS WITH WHOM THE BAR IS IN
CONTACT IN ORDER TO INTERPRET TO SUCH PROFESSIONS AND GROUPS THE PROPER
SCOPE OF THE PRACTICE OF LAW.    "LEGISLATION. - THIS COMMITTEE SHALL
STUDY ALL PROPOSALS SUBMITTED TO THE WISCONSIN LEGISLATURE OR THE
CONGRESS OF THE UNITED STATES FOR CHANGES IN THE STATUTES RELATING TO
THE COURTS OR THE PRACTICE OF LAW, AND SHALL REPORT THEREON TO THE
BOARD OF GOVERNORS; AND WITH THE APPROVAL OF THE BOARD OF GOVERNORS MAY
REPRESENT THE STATE BAR IN SUPPORTING OR OPPOSING ANY SUCH PROPOSALS. 

"LEGAL AID.  - THIS COMMITTEE SHALL PROMOTE THE ESTABLISHMENT AND
EFFICIENT MAINTENANCE OF LEGAL AID ORGANIZATIONS EQUIPPED TO PROVIDE
FREE LEGAL SERVICES TO THOSE UNABLE TO PAY FOR SUCH SERVICE; SHALL
STUDY THE ADMINISTRATION OF JUSTICE AS IT AFFECTS PERSONS IN THE LOW
INCOME GROUPS; AND SHALL STUDY AND REPORT ON METHODS OF MAKING LEGAL
SERVICE MORE READILY AVAILABLE TO PERSONS OF MODERATE MEANS, AND SHALL
ENCOURAGE AND ASSIST LOCAL BAR ASSOCIATIONS IN ACCOMPLISHING THIS
PURPOSE. 

"UNAUTHORIZED PRACTICE OF THE LAW.  - THIS COMMITTEE SHALL KEEP
ITSELF AND THE ASSOCIATION INFORMED WITH RESPECT TO THE UNAUTHORIZED
PRACTICE OF LAW BY LAYMEN AND BY AGENCIES, AND THE PARTICIPATION OF
MEMBERS OF THE BAR IN SUCH ACTIVITIES, AND CONCERNING METHODS FOR THE
PREVENTION THEREOF.  THE COMMITTEE SHALL SEEK THE ELIMINATION OF SUCH
UNAUTHORIZED PRACTICE AND PARTICIPATION THEREIN ON THE PART OF MEMBERS
OF THE BAR, BY SUCH ACTION AND METHODS AS MAY BE APPROPRIATE FOR THAT
PURPOSE. 

"STATE BAR BULLETIN.  - THIS COMMITTEE SHALL ASSIST AND ADVISE THE
OFFICERS OF THE ASSOCIATION AND THE BOARD OF GOVERNORS IN MATTERS
PERTAINING TO THE PRODUCTION AND PUBLICATION OF THE WISCONSIN STATE BAR
BULLETIN, THE WISBAR LETTER, THE SUPREME COURT CALENDAR SERVICE AND
SUCH OTHER PERIODICAL PUBLICATIONS OF THE STATE BAR AS MAY BE
AUTHORIZED BY THE BOARD OF GOVERNORS FROM TIME TO TIME. 

"STATE GRIEVANCE COMMITTEE.  - THIS COMMITTEE SHALL CONSIST OF THE
CHAIRMEN OF THE DISTRICT GRIEVANCE COMMITTEES, WHO SHALL MEET AT LEAST
QUARTERLY AND WHOSE DUTIES SHALL BE TO EXCHANGE INFORMATION AS TO
PROBLEMS ARISING UNDER THE GRIEVANCE PROCEDURE, TO DISCUSS AND ADOPT
UNIFORM PROCEDURES AND STANDARDS UNDER RULE 10 (RELATING TO GRIEVANCES)
AND TO MAKE RECOMMENDATIONS TO THE BOARD OF GOVERNORS FOR IMPROVEMENTS
IN THE PROCEDURES UNDER RULE 10 AND FOR OTHER MATTERS CONSISTENT WITH
THEIR ORGANIZATION."  ARTICLE IV, SECTIONS 2-13, 273 WIS. XXXIII-XXXV;
SUPPLEMENT, WIS. BAR BULL., AUG. 1960, PP. 21-23. 

LAW, FAMILY LAW, ROLE OF HOUSE COUNSEL, INSURANCE, NEGLIGENCE AND
WORKMEN'S COMPENSATION LAW, LABOR RELATIONS LAW, MILITARY LAW, REAL
PROPERTY, PROBATE AND TRUST LAW, TAXATION, GOVERNMENT LAW, PROTECTION
OF INDIVIDUAL RIGHTS AGAINST MISUSE OF POWERS OF GOVERNMENT, PATENT,
TRADEMARK AND COPYRIGHT LAW, AND CRIMINAL LAW. 

FN8  THE COURT SAID:  "WE FEEL  ...  THAT INTEGRATION OF THE BAR
SHOULD BE TRIED.  THE RESULTS THEREOF WILL BE WHAT THE BAR AND THE
COURT MAKE OF IT.  IF INTEGRATION DOES NOT WORK, THIS COURT CAN CHANGE
THE RULES TO MEET ANY SITUATION THAT ARISES OR IT CAN ABANDON THE
PLAN."  IN RE INTEGRATION OF THE BAR, 273 WIS. 281, 285, 77 N.W.2D 602,
604.  "(THE RULES AND BY-LAWS) CANNOT BE TAKEN AS THE LAST WORD, AND
...  EXPERIENCE IN OPERATING UNDER THEM MAY DISCLOSE IMPERFECTIONS, AND
PARTICULARS IN WHICH THEY SHOULD BE CHANGED.  THE INTEGRATED BAR ITSELF
IS AN EXPERIMENT IN WISCONSIN, AND LIKE ALL NEW ENTERPRISES MAY BE
EXPECTED TO NEED ADAPTATION TO CONDITIONS AND CIRCUMSTANCES NOT YET
CLEARLY FORESEEN."  273 WIS. IX. 

FN9  THE POLICY PROVIDES: 

1.  "THE STATE BAR, THROUGH ACTION OF ITS BOARD OF GOVERNORS, WILL
INITIATE LEGISLATION ONLY ON SUCH MATTERS AS IT BELIEVES TO BE OF
GENERAL PROFESSIONAL INTEREST.  NO LEGISLATION WILL BE SPONSORED UNLESS
AND UNTIL THE BOARD IS SATISFIED THAT THE RECOMMENDATION REPRESENTS THE
CONSENSUS AND THE BEST COMPOSITE JUDGMENT OF THE LEGAL PROFESSION OF
THIS STATE, AND THAT THE PROPOSED LEGISLATION IS MERITORIOUS AND IN THE
PUBLIC INTEREST.  THE TEXT OF ALL PROPOSED LEGISLATION SHALL BE
CAREFULLY PREPARED AND CONSIDERED AND THE COUNSEL OF THE EXPERTS IN THE
FIELD INVOLVED WILL BE SOUGHT WHEREVER POSSIBLE." 

2.  POWER TO MAKE THE FINAL DETERMINATION OF THE POLICY OF THE STATE
BAR TOWARD SPECIFIC LEGISLATIVE PROPOSALS IS LODGED IN THE BOARD OF
GOVERNORS. 

3.  "WHERE IT IS OBVIOUS THAT THE MEMBERSHIP OF THE BAR IS OF A
SUBSTANTIALLY DIVIDED OPINION, THE BOARD OF GOVERNORS SHALL TAKE NO
DEFINITE POSITION"; BUT IN ANY SUCH CASE THE BOARD IS EMPOWERED TO
REPORT ITS VOTE TO THE LEGISLATURE AS A REFLECTION OF THE DIVERSE VIEWS
OF THE MEMBERS. 

4.  THE BOARD MAY DELEGATE ITS POWER TO TAKE A POSITION ON
LEGISLATIVE MATTERS TO THE COMMITTEE ON LEGISLATION, THE PRESIDENT OF
THE STATE BAR, OR THE LEGISLATIVE COUNSEL. 

5.  BETWEEN BOARD MEETINGS, THE EXECUTIVE COMMITTEE MAY EXERCISE ALL
OF THE BOARD'S POWERS WITH RESPECT TO LEGISLATION. 

6.  THE BOARD SHALL DESIGNATE A LEGISLATIVE COUNSEL, TO BE REGISTERED
AS A LOBBYIST IN ACCORDANCE WITH WISCONSIN LAW.  HIS TASK IS TO MANAGE
LEGISLATIVE ACTIVITIES, COORDINATING THE WORK OF SECTIONS AND
COMMITTEES INTERESTED IN LEGISLATIVE PROPOSALS WITH THE ACTIVITIES OF
THE BOARD, EXECUTIVE COMMITTEE, AND COMMITTEE ON LEGISLATION; HE IS
ALSO DIRECTED TO SCREEN ALL LEGISLATIVE PROPOSALS AND REFER THOSE OF
SPECIAL INTEREST TO THE APPROPRIATE SECTION OR COMMITTEE FOR STUDY AND
RECOMMENDATION. 

7.  THE COMMITTEE ON LEGISLATION IS EMPOWERED TO DESIGNATE PERSONS TO
APPEAR BEFORE LEGISLATIVE COMMITTEES AND ARRANGE FOR THEIR APPEARANCE. 

8.  WHEN A SECTION OR COMMITTEE SPONSORS LEGISLATION WITH THE
APPROVAL OF THE BOARD, SECTION OFFICERS OR THE COMMITTEE CHAIRMAN MAY
APPEAR BEFORE THE LEGISLATURE IN ITS NAME, OR REQUEST THE LEGISLATIVE
COUNSEL TO APPEAR. 

9.  "DURING THE SESSION OF THE LEGISLATURE ALL SECTIONS AND
COMMITTEES OF THE STATE BAR ARE EXPECTED TO STAND READY TO:  (A)
PARTICIPATE IN EXPLAINING THE BILLS RECOMMENDED OR OPPOSED BY THE STATE
BAR TO THE COMMITTEES OF THE LEGISLATURE TO WHOM THEY ARE REFERRED; (B)
PREPARE EXPLANATORY MATERIAL RELATIVE TO ANY BILL ABOUT WHICH A
QUESTION HAS ARISEN SINCE ITS INTRODUCTION; (C) EXAMINE ALL BILLS
ADVOCATED BY OTHERS THAT WOULD AFFECT THE COURTS, THE JUDICIARY, THE
LEGAL PROFESSION, OR THE ADMINISTRATION OF JUSTICE IN ANY PARTICULAR,
OR THAT WOULD MAKE ANY CHANGES IN THE SUBSTANTIVE LAW, AND KEEP THE
BOARD OF GOVERNORS AND THE EXECUTIVE COMMITTEE FULLY INFORMED SO THAT
ILL-ADVISED BILLS CAN BE OPPOSED AND MERITORIOUS BILLS CAN BE
SUPPORTED.  COMMITTEES OF THE LEGISLATURE SHOULD BE ENCOURAGED TO
REQUEST THE STATE BAR TO STUDY AND TO REPORT ITS RECOMMENDATIONS
CONCERNING ALL BILLS OF THIS CATEGORY." 

10.  THE STATE BAR STAFF IS DIRECTED TO COOPERATE WITH ALL SECTIONS,
COMMITTEES, INDIVIDUAL MEMBERS, AND LOCAL BAR ASSOCIATIONS DESIRING TO
HAVE BILLS DRAFTED FOR INTRODUCTION INTO THE LEGISLATURE. 

11.  TO FACILITATE WIDESPREAD STUDY OF LEGISLATIVE PROPOSALS, THE
STATE BAR SHALL ISSUE A WEEKLY LEGISLATIVE BULLETIN TO OFFICERS,
MEMBERS OF THE BOARD OF GOVERNORS AND THE EXECUTIVE COMMITTEE, SECTION
AND COMMITTEE CHAIRMEN, PRESIDENTS AND SECRETARIES OF ALL LOCAL BAR
ASSOCIATIONS, JUDGES, AND OTHER PERSONS AS DIRECTED BY THE EXECUTIVE
COMMITTEE. 

12.  LOCAL BAR ASSOCIATIONS ARE ENCOURAGED TO TAKE SUCH ACTION ON
LEGISLATION AS THEY DEEM APPROPRIATE AND FORWARD THEIR RECOMMENDATIONS
TO THE STATE BAR FOR CONSIDERATION.  BOARD OF GOVERNORS MINUTES, JUNE
12, 1957. 

BY RESOLUTION IN 1959 IT WAS FURTHER PROVIDED THAT A COMMITTEE OR
BOARD OF GOVERNORS.  BUT IN SO DOING IT MUST STATE THAT THE POSITION IS
THAT OF THE GROUP OR ITS OFFICERS, NOT THAT OF THE STATE BAR.  BOARD OF
GOVERNORS MINUTES, FEB. 18, 1959. 

FN10  THE STATEWIDE AND REGIONAL MEETINGS, THE COURT FOUND, ARE
LARGELY DEVOTED "TO THE DELIVERY OF PAPERS ON TECHNICAL LEGAL SUBJECTS
OF AN INSTRUCTIVE NATURE."  10 WIS. 2D, AT P. 246, 102 N.W.2D, AT PP.
412-413.  THE SECTIONS ARE PARTICULARLY ACTIVE IN THIS REGARD.  AS A
FORMER PRESIDENT OF THE STATE BAR DESCRIBED THEIR ROLE:  "THE SECTIONS
PROVIDE A SPECIAL PLACE WHERE MEMBERS WITH INTEREST IN PARTICULAR
FIELDS OF LAW MAY SERVE ON COMMITTEES AND RECEIVE ASSISTANCE AND
TRAINING IN SUCH FIELDS.  MOREOVER, THE SECTIONS PROVIDE THEIR OWN
PROGRAMS AT EACH ANNUAL AND MIDWINTER MEETING LARGELY OF A VERY
PRACTICAL AND EDUCATIONAL NATURE."  WIS. BAR BULL., AUG. 1958, P. 71. 
SEE, E.G., REPORT OF CORPORATION AND BUSINESS LAW SECTION, ID., JUNE
1960, P. 56; REPORT OF LABOR LAW SECTION, ID., P. 60.  FOR EXAMPLE, THE
TAXATION SECTION HAS SPONSORED AN ANNUAL TAX INSTITUTE FOR PRACTICING
LAWYERS.  SEE REPORT OF TAXATION SECTION, WIS. BAR BULL, JUNE 1959, PP.
53-54.  MANY OF THE PAPERS DELIVERED AT SUCH SESSIONS ARE LATER GIVEN
WIDER CIRCULATION TO THE BAR BY PUBLICATION IN THE BAR BULLETIN.  IN
ADDITION, THE STATE BAR HAS UNDERTAKEN THE SPONSORSHIP OF NUMEROUS
SPECIAL SEMINARS AND SYMPOSIA, SEE, E.G., WIS. BAR BULL., AUG. 1960, P.
41.  AND IT HAS MADE FUNDS AVAILABLE TO THE UNIVERSITY OF WISCONSIN LAW
SCHOOL TO COMPENSATE STUDENTS FOR ASSISTING IN THE PREPARATION OF
MATERIALS FOR POST-GRADUATE PROGRAMS.  SEE BOARD OF GOVERNORS MINUTES,
APR. 25, 1958; WIS. BAR BULL., AUG. 1958, PP. 69-70. 

FN11  PRIOR TO INTEGRATION THE BOARD OF STATE BAR COMMISSIONERS
CONDUCTED AND PAID FOR THE INVESTIGATION OF GRIEVANCES.  SINCE THEN THE
GRIEVANCE COMMITTEES HAVE PERFORMED MOST OF THAT WORK, WITH A RESULTING
DIMINUTION IN THE FINANCIAL NEEDS OF THE BAR COMMISSIONERS.  A FORMER
PRESIDENT OF THE STATE BAR COMMENTED ON THESE COMMITTEES' PERFORMANCE
OF THEIR FUNCTIONS:  "THE RESULT IS THAT A MAJORITY OF COMPLAINTS ARE
ADJUSTED OR EXPLAINED TO THE SATISFACTION OF THE COMPLAINANT, AND THE
STATE BAR COMMISSIONERS ARE SAVED CONSIDERABLE TIME AND EFFORT  ...
."  WIS. BAR BULL., AUG. 1958, P. 68.  SEE ALSO ID., AUG. 1960, P. 41. 

FN12  REVENUES FROM INTEGRATION ENABLED THE STATE BAR TO EMPLOY A
LAWYER WHOSE PRINCIPAL TASK IS THE INVESTIGATION OF COMPLAINTS OF
UNAUTHORIZED PRACTICE AND THE EFFORT TO ACHIEVE ITS DISCONTINUANCE.  A
NUMBER OF LEGAL ACTIONS TO PREVENT UNAUTHORIZED PRACTICE HAVE BEEN
INSTITUTED.  SEE, E.G., WIS. BAR BULL., AUG. 1960, P. 45; ID., JUNE
1960, PP. 49-50; ID., JUNE 1958, PP. 48-49.  THE COMMITTEE ON
UNAUTHORIZED PRACTICE HAS ALSO WORKED WITH THE COMMITTEE ON
INTERPROFESSIONAL AND BUSINESS RELATIONS IN CONFERRING WITH OTHER
PROFESSIONAL GROUPS TO ESTABLISH DEMARCATION LINES BETWEEN THEIR
ACTIVITIES AND THOSE OF THE BAR.  THUS AN AGREEMENT WAS NEGOTIATED WITH
THE ASSOCIATION OF CERTIFIED PUBLIC ACCOUNTANTS AND A JOINT COMMITTEE
PROVIDED TO POLICE IT.  SEE BOARD OF GOVERNORS MINUTES, DEC. 9, 1960. 
THE COMMITTEE ON INTERPROFESSIONAL AND BUSINESS RELATIONS HAS ALSO
PARTICIPATED IN PROJECTS FOR THE FORMULATION OF AGREEMENTS WITH THE
ASSOCIATION OF REAL ESTATE BROKERS AND THE ASSOCIATION OF COLLECTION
AGENCIES, AND ITS PROGRAM INCLUDES CONFERENCES WITH OTHER PROFESSIONAL
GROUPS.  SEE EXECUTIVE COMMITTEE MINUTES, JULY 22, 1960.  LEGAL ETHICS
IS ANOTHER CONCERN OF THE STATE BAR.  ITS COMMITTEE ON PROFESSIONAL
ETHICS HAS GIVEN OPINIONS ON A NUMBER OF QUESTIONS OF ETHICAL
PRACTICE.  SEE, E.G., WIS. BAR BULL., JUNE 1960, PP. 46-49. 

FN13  THE NUMBER OF LAWYERS IN WISCONSIN PARTICIPATING IN LEGAL AID
HAS STEADILY INCREASED.  THE COMMITTEE REPORTED IN 1960 THAT IT WOULD
"CONTINUE TO VIGOROUSLY CARRY ON ITS PROGRAM OF RENDERING PROMPT AND
EFFICIENT LEGAL AID SERVICES TO ALL THOSE WHO REQUIRE THE SAME; TO
CONTINUE TO WORK DILIGENTLY TO THE REALIZATION OF THE GOAL THAT EVERY
COUNTY BAR ASSOCIATION WITHIN OUR STATE HAVE AN EFFECTIVE LEGAL AID
BUREAU OR LEGAL AID SOCIETY AS SOON AS POSSIBLE; TO CONTINUE OUR POLICY
OF BRINGING INTO OUR OPEN FORUM MEETINGS ON LEGAL AID, THE MOST
OUTSTANDING AUTHORITIES ON THE SUBJECT, TO THE END THAT WE HERE IN THE
STATE OF WISCONSIN WILL AT ALL TIMES HAVE THE FULLEST, UP-TO-DATE
INFORMATION ON EVERY PHASE OF LEGAL AID  ...  ."  WIS.  BAR BULL., JUNE
1960, P. 64.  SEE ALSO ID., JUNE 1959, P. 63. 

FN14  THE STATE BAR HAS ALSO PREPARED ARTICLES ON LEGAL SUBJECTS FOR
DISTRIBUTION TO NEWSPAPERS THROUGHOUT THE STATE.  IT HAS BEEN CONCERNED
WITH THE PROMOTION OF THE ANNUAL LAW DAY.  SEE, E.G., WIS. BAR BULL.,
AUG. 1958, P. 67.  THE BAR BULLETIN, IN ADDITION TO PUBLISHING ARTICLES
ON LEGAL SUBJECTS, HAS ISSUED SPECIAL SUPPLEMENTS EXPLAINING AND
ANNOTATING NEW LAWS AND HAS PRINTED CHECKLISTS FOR ATTORNEYS SUGGESTING
HOW TO PROCEED WITH VARIOUS LEGAL PROBLEMS.  ITS AVOWED AIM IS TO MAKE
THE BULLETIN "A VERY PRACTICAL MEANS FOR ALL PRACTICING LAWYERS TO KEEP
POSTED ON THE EVER-CHANGING REQUIREMENTS IN THE PRACTICE  ...  .  WE
BELIEVE THAT ONE OF THE GREAT JUSTIFICATIONS FOR INTEGRATION IS FOUND
IN THE MEANS OF PUBLICATION AND COMMUNICATION FROM THE BAR TO THE
MEMBER THROUGH THESE VEHICLES."  WIS. BAR BULL., JUNE 1960, P. 67. 

FN15  THE STATED FUNCTIONS OF THE SPECIAL COMMITTEE ON ECONOMICS OF
THE BAR ARE:  "THE COMMITTEE WILL ENGAGE ITSELF IN THE GENERAL STUDY OF
THE ECONOMICS OF THE BAR TO DETERMINE A FAIR FEE SCHEDULE FROM TIME TO
TIME; SEEK ITS UNIFORM ADOPTION AND RECOGNITION THROUGHOUT THE STATE;
STUDY THE ENCROACHMENT OF LAY AGENCIES ON THE FIELDS OF LAW; MAKE
SUGGESTIONS FOR PROPER OFFICE MANAGEMENT, AND MAKE SUCH RECOMMENDATIONS
FROM TIME TO TIME AS IT CONSIDERS PROPER IN THE GENERAL FIELD."  WIS.
BAR BULL., JUNE 1959, P. 58.  ONE OF THE PRINCIPAL PRODUCTS OF SUCH
ACTIVITY HAS BEEN A RECOMMENDED SCHEDULE OF MINIMUM FEES FOR WISCONSIN
LAWYERS; THIS SCHEDULE WAS PUBLISHED AND DISTRIBUTED AT A COST OF OVER
$10,000 TO THE STATE BAR.  SEE WIS. BAR BULL., AUG. 1960, P. 40; ALSO
ID., PP. 10-11.  ANOTHER PROJECT AUTHORIZED BY THE BOARD OF GOVERNORS
IS A COMPREHENSIVE STATISTICAL STUDY OF THE ECONOMIC STATUS OF
WISCONSIN LAWYERS.  SEE BOARD OF GOVERNORS MINUTES, SEPT. 23, 1960,
DEC. 9, 1960.   OTHER SPECIAL COMMITTEES HAVE CONSIDERED SUCH MATTERS
AS GROUP INSURANCE FOR STATE BAR MEMBERS AND CREATION OF A CLIENT
SECURITY PLAN TO INSURE AGAINST ATTORNEYS' DEFALCATIONS.  SEE, E.G.,
WIS. BAR BULL., AUG. 1960, P. 41; BOARD OF GOVERNORS MINUTES, FEB. 18,
1959; EXECUTIVE COMMITTEE MINUTES, SEPT. 23, 1960.    FN16  ON THE
SUBJECT OF INTEGRATION OF THE BAR IN THE UNITED STATES, SEE GENERALLY
GLASER, THE ORGANIZATION OF THE INTEGRATED BAR, THE DEBATE OVER THE
INTEGRATED BAR, AND BIBLIOGRAPHY ON THE INTEGRATED BAR (COLUMBIA
UNIVERSITY BUREAU OF APPLIED SOCIAL RESEARCH).  COMPREHENSIVE
DISCUSSIONS OF INTEGRATION OF THE BAR IN THE VARIOUS STATES ARE
CONTAINED IN BRIEFS AMICI CURIAE FILED WITH THE COURT IN THIS CASE. 

FN17  THE WISCONSIN SUPREME COURT ORIGINALLY DECLINED TO ORDER
INTEGRATION PARTLY BECAUSE OF MISGIVINGS WHETHER POSSIBLE POLITICAL
ACTIVITIES OF THE INTEGRATED BAR WOULD BE CONSISTENT WITH THE PUBLIC
INTEREST SOUGHT TO BE SERVED.  SEE IN RE INTEGRATION OF THE BAR, 249
WIS. 523, 25 N.W.2D 500.   IT INDICATED THAT INTEGRATION WOULD "REQUIRE
IT TO CENSOR THE BUDGETS AND ACTIVITIES OF THE BAR AFTER INTEGRATION"
AND SAID:  "IT REQUIRES A VERY SHORT LOOK AT SOME OF THE POSSIBLE
ACTIVITIES OF THE BAR TO MAKE IT CLEAR THAT THIS COURT WOULD HAVE TO
INSIST UPON SCRUTINIZING EVERY ACTIVITY FOR WHICH IT IS PROPOSED TO
EXPEND FUNDS DERIVED FROM DUES, AND THAT A SERIES OF SITUATIONS WOULD
ARISE THAT WOULD BE EMBARRASSING TO THE RELATIONS OF BENCH AND BAR." 
249 WIS., AT PP. 528, 529-530, 25 N.W.2D, AT PP. 502, 503.  THESE
RESERVATIONS WERE EXPRESSLY DISCLAIMED WHEN THE COURT CONTINUED
INTEGRATION IN 1958, 5 WIS. 2D 618, 626-627, 93 N.W.2D 601, 605.  THE
COURT SAID:  "THE INTEGRATED STATE BAR OF WISCONSIN IS INDEPENDENT AND
FREE TO CONDUCT ITS ACTIVITIES WITHIN THE FRAMEWORK OF SUCH RULES AND
BY-LAWS."  5 WIS. 2D, AT P. 626, 93 N.W.2D, AT P. 605.  THE COURT
REITERATED THIS POSITION IN THE PRESENT CASE:  "IN SO FAR AS IT
CONFINES SUCH ACTIVITIES TO THOSE AUTHORIZED BY THE RULES AND BY-LAWS,
THIS COURT WILL NOT INTERFERE OR IN ANY MANNER SEEK TO CONTROL OR
CENSOR THE ACTION TAKEN, OR TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE
MEMBERSHIP OF THE STATE BAR."  10 WIS. 2D, AT P. 240, 102 N.W.2D, AT P.
410. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
CONCURRING IN THE JUDGMENT. 

I THINK IT MOST UNFORTUNATE THAT THE RIGHT OF THE WISCONSIN
INTEGRATED BAR TO USE, IN WHOLE OR IN PART, THE DUES OF DISSIDENT
MEMBERS TO CARRY ON LEGISLATIVE AND OTHER PROGRAMS OF LAW REFORM -
DOUBTLESS AMONG THE MOST USEFUL AND SIGNIFICANT BRANCHES OF ITS
AUTHORIZED ACTIVITIES - SHOULD BE LEFT IN SUCH DISQUIETING
CONSTITUTIONAL UNCERTAINTY.  THE EFFECT OF THAT UNCERTAINTY IS
COMPOUNDED BY THE CIRCUMSTANCE THAT IT WILL DOUBTLESS ALSO REACH INTO
THE INTEGRATED BARS OF TWENTY-FIVE OTHER STATES.  (FN1) 

I MUST SAY, WITH ALL RESPECT, THAT THE REASONS STATED IN THE
PLURALITY OPINION FOR AVOIDING DECISION OF THIS CONSTITUTIONAL ISSUE
CAN HARDLY BE REGARDED AS ANYTHING BUT TRIVIAL.  FOR, GIVEN THE
UNQUESTIONED FACT THAT THE WISCONSIN BAR USES OR THREATENS TO USE, OVER
APPELLANT'S PROTEST, SOME PART OF ITS RECEIPTS TO FURTHER OR OPPOSE
LEGISLATION ON MATTERS OF LAW REFORM AND THE ADMINISTRATION OF JUSTICE,
I AM AT A LOSS TO UNDERSTAND HOW IT CAN BE THOUGHT THAT THIS RECORD
AFFORDS "NO SOUND BASIS" FOR ADJUDICATING THE ISSUE SIMPLY BECAUSE WE
ARE NOT "CLEARLY APPRISED AS TO THE VIEWS OF THE APPELLANT ON ANY
PARTICULAR LEGISLATIVE ISSUES ON WHICH THE STATE BAR HAS TAKEN A
POSITION, OR AS TO THE WAY IN WHICH AND THE DEGREE TO WHICH FUNDS
COMPULSORILY EXACTED FROM ITS MEMBERS ARE USED TO SUPPORT THE
ORGANIZATION'S POLITICAL ACTIVITIES" (ANTE, PP. 845-846).  I AGREE WITH
MY BROTHER BLACK THAT THE CONSTITUTIONAL ISSUE IS INESCAPABLY BEFORE
US. 

UNLESS ONE IS READY TO FALL PREY TO WHAT ARE AT BEST BUT ALLURING
ABSTRACTIONS ON RIGHTS OF FREE SPEECH AND ASSOCIATION, I THINK HE WILL
BE HARD PUT TO IT TO FIND ANY SOLID BASIS FOR THE CONSTITUTIONAL QUALMS
WHICH, THOUGH UNEXPRESSED, SO OBVIOUSLY UNDERLIE THE PLURALITY OPINION,
OR FOR THE VIEWS OF MY TWO DISSENTING BROTHERS, ONE OF WHOM FINDS
UNCONSTITUTIONAL THE ENTIRE INTEGRATED BAR CONCEPT (POST, PP. 877-885),
AND THE OTHER OF WHOM HOLDS THE OPERATIONS OF SUCH A BAR
UNCONSTITUTIONAL TO THE EXTENT THAT THEY INVOLVE TAKING "THE MONEY OF
PROTESTING LAWYERS" AND USING "IT TO SUPPORT CAUSES THEY ARE AGAINST"
(POST, P. 871). 

FOR ME, THERE IS A SHORT AND SIMPLE ANSWER TO ALL OF THIS.  THE
HANSON CASE, 351 U.S. 225, DECIDED BY A UNANIMOUS COURT, SURELY LAYS AT
REST ALL DOUBT THAT A STATE MAY CONSTITUTIONALLY CONDITION THE RIGHT TO
PRACTICE LAW UPON MEMBERSHIP IN AN INTEGRATED BAR ASSOCIATION, A
CONDITION FULLY AS JUSTIFIED BY STATE NEEDS AS THE UNION SHOP IS BY
FEDERAL NEEDS.  INDEED THE CONCLUSION REACHED IN HANSON WITH RESPECT TO
COMPULSORY UNION MEMBERSHIP SEEMS TO ME A FORTIORI TRUE HERE, IN LIGHT
OF THE SUPERVISORY POWERS WHICH THE STATE, THROUGH ITS COURTS, HAS
TRADITIONALLY EXERCISED OVER ADMISSION TO THE PRACTICE OF LAW, SEE
KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36; IN RE ANASTAPLO,
366 U.S. 82, AND OVER THE CONDUCT OF LAWYERS AFTER ADMISSION, SEE COHEN
V. HURLEY, 366 U.S. 117.  THE INTEGRATED BAR WAS IN FACT TREATED AS
SUCH AN A FORTIORI CASE IN THE HANSON OPINION ITSELF.  SUPRA, AT 238. 
SO MUCH, INDEED, IS RECOGNIZED BY THE PLURALITY OPINION WHICH REJECTS
THE CONTENTION THAT WISCONSIN COULD NOT CONSTITUTIONALLY REQUIRE
APPELLANT, A LAWYER, TO BECOME AND REMAIN A DUES-PAYING MEMBER OF THE
STATE BAR. 

THAT BEING SO, I DO NOT UNDERSTAND WHY IT SHOULD BECOME
UNCONSTITUTIONAL FOR THE STATE BAR TO USE APPELLANT'S DUES TO FULFILL
SOME OF THE VERY PURPOSES FOR WHICH IT WAS ESTABLISHED.  I AM WHOLLY
UNABLE TO FOLLOW THE FORCE OF REASONING WHICH, ON THE ONE HAND, DENIES
THAT COMPULSORY DUES-PAYING MEMBERSHIP IN AN INTEGRATED BAR INFRINGES
"FREEDOM OF ASSOCIATION," AND, ON THE OTHER, IN EFFECT AFFIRMS THAT
SUCH MEMBERSHIP, TO THE EXTENT IT ENTAILS THE USE OF A DISSIDENT
MEMBER'S DUES FOR LEGITIMATE BAR PURPOSES, INFRINGES "FREEDOM OF
SPEECH."  THIS IS A REFINEMENT BETWEEN TWO ASPECTS OF WHAT, IN
CIRCUMSTANCES LIKE THESE, IS ESSENTIALLY BUT A SINGLE FACET OF THE
"LIBERTY" ASSURED BY THE FOURTEENTH AMENDMENT, SEE N.A.A.C.P. V.
ALABAMA, 357 U.S. 449, 460, THAT IS TOO SUBTLE FOR ME TO GRASP. 

NEVERTHELESS, SINCE A MAJORITY OF THE COURT HERE, AS IN THE STREET
CASE, ANTE, P. 740, HAS DEEMED THE "FREE SPEECH" ISSUE TO BE DISTINCT
FROM THAT OF "FREE ASSOCIATION,"  I SHALL ALSO TREAT THE CASE ON THAT
BASIS.  FROM A CONSTITUTIONAL STANDPOINT, I THINK THAT THERE CAN BE NO
DOUBT ABOUT WISCONSIN'S RIGHT TO USE APPELLANT'S DUES IN FURTHERANCE OF
ANY OF THE PURPOSES NOW DRAWN IN QUESTION.  (FN2)  ORDERLY ANALYSIS
REQUIRES THAT THERE BE CONSIDERED, FIRST, THE RESPECTS IN WHICH IT MAY
BE THOUGHT THAT THE USE OF A MEMBER'S DUES FOR CAUSES HE IS AGAINST
IMPINGES ON HIS RIGHT OF FREE SPEECH, AND SECOND, THE NATURE OF THE
STATE INTEREST OFFERED TO JUSTIFY SUCH USE OF THE DUES EXACTED FROM
HIM.  I SHALL ALSO ADD SOME FURTHER OBSERVATIONS AS TO THE OVER-ALL
CONSTITUTIONALITY OF THE INTEGRATED BAR CONCEPT. 

                     I. 

TO AVOID THE PITFALL OF DISARMING, AND USUALLY OBSCURING,
GENERALIZATION WHICH TOO OFTEN CHARACTERIZES DISCUSSIONS IN THIS
CONSTITUTIONAL FIELD, I SEE NO ALTERNATIVE (EVEN AT THE RISK OF BEING
THOUGHT TO LABOR THE OBVIOUS) BUT TO DEAL IN TURN WITH EACH OF THE
VARIOUS SPECIFIC IMPINGEMENTS ON "FREE SPEECH" WHICH HAVE BEEN
SUGGESTED OR INTIMATED TO FLOW FROM THE STATE BAR'S USE OF AN OBJECTING
MEMBER'S DUES FOR THE PURPOSES INVOLVED IN THIS CASE.  AS I UNDERSTAND
THINGS, IT IS SAID THAT THE OPERATION OF THE INTEGRATED BAR TENDS (1)
TO REDUCE A DISSIDENT MEMBER'S "ECONOMIC CAPACITY" TO ESPOUSE CAUSES IN
WHICH HE BELIEVES; (2) TO FURTHER GOVERNMENTAL "ESTABLISHMENT" OF
POLITICAL VIEWS; (3) TO THREATEN DEVELOPMENT OF A "GUILD SYSTEM" OF
CLOSED, SELF-REGULATING PROFESSIONS AND BUSINESSES; (4) TO "DROWN OUT"
THE VOICE OF DISSENT BY REQUIRING ALL MEMBERS OF THE BAR TO LEND
FINANCIAL SUPPORT TO THE VIEWS OF THE MAJORITY; AND (5) TO INTERFERE
WITH FREEDOM OF BELIEF BY CAUSING "COMPELLED AFFIRMATION" OF MAJORITY
HELD VIEWS.  WITH DEFERENCE, I AM BOUND TO SAY THAT, IN MY VIEW, ALL OF
THESE ARGUMENTS BORDER ON THE CHIMERICAL. 

1.  REDUCTION IN "ECONOMIC CAPACITY" TO ESPOUSE VIEWS. 

THIS ARGUMENT WHICH, IF INDEED SUGGESTED AT ALL, IS INTIMATED ONLY
OBLIQUELY, IS THAT THE MERE EXACTION OF DUES MONEY WORKS A
CONSTITUTIONALLY COGNIZABLE INHIBITION OF SPEECH BY REDUCING THE
RESOURCES OTHERWISE AVAILABLE TO A DISSIDENT MEMBER FOR THE ESPOUSAL OF
CAUSES IN WHICH HE BELIEVES.   THE UNTENABILITY OF SUCH A PROPOSITION
BECOMES IMMEDIATELY APPARENT WHEN IT IS RECOGNIZED THAT THIS RATIONALE
WOULD MAKE EVERY GOVERNMENTAL EXACTION THE MATERIAL OF A "FREE SPEECH"
ISSUE.  EVEN THE FEDERAL INCOME TAX WOULD BE SUSPECT.  AND CERTAINLY
THIS SOURCE OF INHIBITION IS AS GREAT IF THE INTEGRATED BAR WASTES ITS
DUES ON DINNERS AS IF IT SPENDS THEM ON RECOMMENDATIONS TO THE
LEGISLATURE.  YET I SUPPOSE THAT NO ONE WOULD BE WILLING TO CONTEND
THAT EVERY WASTE OF MONEY EXACTED BY SOME FORM OF COMPULSION IS AN
ABRIDGMENT OF FREE SPEECH. 

2.  "ESTABLISHMENT" OF POLITICAL VIEWS. 

THE SUGGESTION THAT A STATE-CREATED INTEGRATED BAR AMOUNTS TO A
GOVERNMENTAL "ESTABLISHMENT" OF POLITICAL BELIEF IS HARDLY WORTHY OF
MORE SERIOUS CONSIDERATION.  EVEN THOSE WHO WOULD TREAT THE FOURTEENTH
AMENDMENT AS EMBRACING THE IDENTICAL PROTECTIONS AFFORDED BY THE FIRST
WOULD HAVE TO RECOGNIZE THE CLEAR DISTINCTION IN THE WORDING OF THE
FIRST AMENDMENT BETWEEN THE PROTECTIONS OF SPEECH AND RELIGION, ONLY
THE LATTER PROVIDING A PROTECTION AGAINST "ESTABLISHMENT."  AND AS TO
THE FOURTEENTH, VIEWED INDEPENDENTLY OF THE FIRST, ONE CAN SURELY AGREE
THAT A STATE COULD NOT "CREATE A FUND TO BE USED IN HELPING CERTAIN
POLITICAL PARTIES OR GROUPS FAVORED" BY IT "TO ELECT THEIR CANDIDATES
OR PROMOTE THEIR CONTROVERSIAL CAUSES" (ANTE, P. 788), ANY MORE THAN
COULD CONGRESS DO SO, WITHOUT AGREEING THAT THIS IS IN ANY WAY
ANALOGOUS TO WHAT WISCONSIN HAS DONE IN CREATING ITS INTEGRATED BAR, OR
TO WHAT CONGRESS HAS PROVIDED IN THE RAILWAY LABOR ACT, CONSIDERED IN
THE STREET CASE, ANTE, P. 740. 

IN ESTABLISHING THE INTEGRATED BAR WISCONSIN HAS, I ASSUME ALL WOULD
AGREE, SHOWN NO INTEREST AT ALL IN FAVORING PARTICULAR CANDIDATES FOR
JUDICIAL OR LEGAL OFFICE OR PARTICULAR TYPES OF LEGISLATION.  EVEN IF
WISCONSIN HAD SUCH AN INTEREST, THE INTEGRATED BAR DOES NOT PROVIDE A
FIXED, PREDICTABLE CONDUIT FOR GOVERNMENTAL ENCOURAGEMENT OF PARTICULAR
VIEWS, FOR THE BAR MAKES ITS OWN DECISIONS ON LEGISLATIVE
RECOMMENDATIONS AND APPEARS TO TAKE NO ACTION AT ALL WITH REGARD TO
CANDIDATES.  BY THE SAME TOKEN THE WEIGHT LENT TO ONE SIDE OF A
CONTROVERSIAL ISSUE BY THE PRESTIGE OF GOVERNMENT IS WHOLLY LACKING
HERE. 

IN SHORT, IT SEEMS TO ME FANCIFUL IN THE EXTREME TO FIND IN THE
LIMITED FUNCTIONS OF THE WISCONSIN STATE BAR THOSE RISKS OF
GOVERNMENTAL SELF-PERPETUATION THAT MIGHT JUSTIFY THE RECOGNITION OF A
CONSTITUTIONAL PROTECTION AGAINST THE "ESTABLISHMENT" OF POLITICAL
BELIEFS.  A CONTRARY CONCLUSION WOULD, IT SEEMS TO ME, AS WELL EMBRACE
WITHIN ITS RATIONALE THE OPERATIONS OF THE JUDICIAL CONFERENCE OF THE
UNITED STATES, AND THE LEGISLATIVE RECOMMENDATIONS OF INDEPENDENT
AGENCIES SUCH AS THE INTERSTATE COMMERCE COMMISSION AND THE BUREAU OF
THE BUDGET. 

3.  DEVELOPMENT OF A "GUILD SYSTEM." 

IT IS SAID THAT THE INTEGRATED BAR CONCEPT TENDS TOWARDS THE
DEVELOPMENT OF SOME SORT OF A "GUILD SYSTEM."  BUT THERE ARE NO
REQUIREMENTS OF ACTION OR INACTION CONNECTED WITH THE WISCONSIN
INTEGRATED BAR, AS CONTRASTED WITH ANY UNINTEGRATED BAR, EXCEPT FOR THE
REQUIREMENT OF PAYMENT OF $15 ANNUAL DUES.  I WOULD AGREE THAT THE
REQUIREMENT OF PAYMENT OF DUES COULD NOT BE MADE THE BASIS OF LIMITING
THE PROFESSION OF LAW TO THE COMPARATIVELY WEALTHY.  CF. GRIFFIN V.
ILLINOIS, 351 U.S. 12.  NOR, DOUBTLESS, COULD ADMISSION TO THE
PROFESSION BE RESTRICTED TO RELATIVES OF THOSE ALREADY ADMITTED.  BUT
THERE IS NO SUCH "GUILD" THREAT PRESENTED IN THIS SITUATION. 

TRUE, THE WISCONSIN BAR MAKES RECOMMENDATIONS TO THE STATE SUPREME
COURT FOR REGULATORY CANONS OF LEGAL ETHICS, AND IT MAY BE SUPPOSED
THAT THE BAR IS NOT FORBIDDEN TO ADDRESS THE STATE LEGISLATURE FOR
MEASURES REGULATING IN SOME RESPECTS THE CONDUCT OF LAWYERS.  BUT
NEITHER ACTIVITY IS THE KIND OF DIRECT SELF-REGULATION THAT WAS
STRICKEN DOWN IN SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495.  THE
WISCONSIN SUPREME COURT HAS RETAINED ALL OF THE TRADITIONAL POWERS OF A
COURT TO SUPERVISE THE ACTIVITIES OF PRACTICING LAWYERS.  IT HAS
DELEGATED NONE OF THESE TO THE INTEGRATED BAR.  AS PUT BY THE STATE
SUPREME COURT: 

"THE INTEGRATED BAR HAS NO POWER TO DISCIPLINE OR TO DISBAR ANY
MEMBER.  THAT POWER HAS BEEN RESERVED TO AND NOT DELEGATED BY THIS
COURT.  THE PROCEDURE UNDER SEC. 256.28, STATS., FOR FILING COMPLAINTS
FOR DISCIPLINE OR DISBARMENT IN THIS COURT IS UNAFFECTED BY THESE
RULES.  RULE 11 AND RULE 7 PROVIDE AN ORDERLY AND EASY METHOD BY WHICH
PROPOSALS TO AMEND OR ABROGATE THE RULES OF THE STATE BAR MAY BE
BROUGHT BEFORE THIS COURT FOR HEARING ON PETITION.  RULE 9 PROVIDES THE
RULES OF PROFESSIONAL CONDUCT SET FORTH FROM TIME TO TIME IN THE CANONS
OF THE PROFESSIONAL ETHICS OF THE AMERICAN BAR ASSOCIATION, AS
SUPPLEMENTED OR MODIFIED BY PRONOUNCEMENT OF THIS COURT, SHALL BE THE
STANDARD GOVERNING THE PRACTICE OF LAW IN THIS STATE.  PRIOR TO THE
ADOPTION OF THE RULES THIS COURT HAS NOT EXPRESSLY ADOPTED SUCH CANONS
OF PROFESSIONAL ETHICS IN TOTO. 

"THE BY-LAWS OF THE STATE BAR PROVIDE FOR THE INTERNAL WORKINGS OF
THE ORGANIZATION AND BY RULE 11, SEC. 2, MAY BE AMENDED OR ABROGATED BY
RESOLUTION ADOPTED BY A VOTE OF TWO-THIRDS OF THE MEMBERS OF THE BOARD
OF GOVERNORS OR BY THE MEMBERS OF THE ASSOCIATION THEMSELVES THROUGH
THE REFERENDUM PROCEDURE.  AS A FURTHER PROTECTION TO THE MINORITY A
PETITION FOR REVIEW OF ANY CHANGE IN THE BY-LAWS MADE BY THE BOARD OF
GOVERNORS WILL BE ENTERTAINED BY THE COURT IF SIGNED BY 25 OR MORE
ACTIVE MEMBERS.    "INDEPENDENTLY OF THE PROVISIONS IN THE RULES FOR
INVOKING OUR SUPERVISORY JURISDICTION, THIS COURT HAS INHERENT POWER TO
TAKE REMEDIAL ACTION, ON A SUFFICIENT SHOWING THAT THE ACTIVITIES OR
POLICIES OF THE STATE BAR ARE NOT IN HARMONY WITH THE OBJECTIVES FOR
WHICH INTEGRATION WAS ORDERED OR ARE OTHERWISE CONTRARY TO THE PUBLIC
INTEREST."  IN RE INTEGRATION OF BAR, 5 WIS. 2D 618, 624-625, 93 N.W.2D
601, 604. 

MOREOVER, IT IS BY NO MEANS CLEAR TO ME IN WHAT PART OF THE FEDERAL
CONSTITUTION WE ARE TO FIND THE PROHIBITION OF STATE-AUTHORIZED SELF
REGULATION OF AND BY AN ECONOMIC GROUP THAT THE SCHECHTER CASE FOUND IN
ARTICLE I AS RESPECTS THE FEDERAL GOVERNMENT.  IS STATE-AUTHORIZED SELF
REGULATION OF LAWYERS TO BE THE OCCASION FOR JUDICIAL ENFORCEMENT OF
ART. IV, SEC. 4, WHICH PROVIDES THAT "THE UNITED STATES SHALL GUARANTEE
TO EVERY STATE IN THIS UNION A REPUBLICAN FORM OF GOVERNMENT  ...  "? 
CF. LUTHER V. BORDEN, 7 HOW.  1; PACIFIC STATES TEL.  & TEL. CO. V.
OREGON, 223 U.S. 118. 

4.  "DROWNING OUT" THE VOICE OF DISSENT. 

THIS OBJECTION CAN BE STATED IN EITHER OF TWO WAYS.  FIRST:  THE
REQUIREMENT OF DUES PAYMENTS TO BE SPENT TO FURTHER VIEWS TO WHICH THE
PAYOR IS OPPOSED TENDS TO INCREASE THE VOLUME OF THE ARGUMENTS HE
OPPOSES AND THEREBY TO DROWN OUT HIS OWN VOICE IN OPPOSITION, IN
VIOLATION OF HIS CONSTITUTIONAL RIGHT TO BE HEARD.  SECOND:  THE UNITED
STATES CONSTITUTION CREATES A SCHEME OF FEDERAL AND STATE GOVERNMENTS
EACH OF WHICH IS TO BE ELECTED ON A ONE-MAN-ONE-VOTE BASIS AND ON A ONE
MAN-ONE-POLITICAL-VOICE BASIS.  OF COURSE SEVERAL PERSONS MAY
VOLUNTARILY CUMULATE THEIR POLITICAL VOICES, BUT NO GOVERNMENTAL FORCE
CAN REQUIRE A SINGLE INDIVIDUAL TO CONTRIBUTE MONEY TO SUPPORT VIEWS TO
BE ADOPTED BY A DEMOCRATICALLY ORGANIZED GROUP EVEN IF THE INDIVIDUAL
IS ALSO FREE TO SAY WHAT HE PLEASES SEPARATELY. 

IT SEEMS TO ME THESE ARGUMENTS HAVE LITTLE FORCE.  IN THE FIRST
PLACE, THEIR SUPPOSITION IS THAT THE VOICE OF A DISSENTER IS LESS
EFFECTIVE IF HE SPEAKS IT FIRST IN AN ATTEMPT TO INFLUENCE THE ACTION
OF A DEMOCRATICALLY ORGANIZED GROUP AND THEN, IF NECESSARY, IN DISSENT
TO THE RECOMMENDATIONS OF THAT GROUP.  THIS IS NOT AT ALL CONVINCING. 
THE DISSENTER IS NOT BEING MADE TO CONTRIBUTE FUNDS TO THE FURTHERANCE
OF VIEWS HE OPPOSES BUT IS RATHER BEING MADE TO CONTRIBUTE FUNDS TO A
GROUP EXPENDITURE ABOUT WHICH HE WILL HAVE SOMETHING TO SAY.  TO THE
EXTENT THAT HIS VOICE OF DISSENT CAN CONVINCE HIS LAWYER ASSOCIATES, IT
WILL LATER BE HEARD BY THE STATE LEGISLATURE WITH A MAGNIFIED VOICE. 
IN SHORT, I THINK IT BEGS THE QUESTION TO APPROACH THE CONSTITUTIONAL
ISSUE WITH THE ASSUMPTION THAT THE MAJORITY OF THE BAR HAS A
PERMANENTLY FORMULATED POSITION WHICH THE DISSENTING DUES PAYOR IS
BEING REQUIRED TO SUPPORT, THUS INCREASING THE DIFFICULTY OF EFFECTIVE
OPPOSITION TO IT. 

MOREOVER, I DO NOT THINK IT CAN BE SAID WITH ANY ASSURANCE THAT BEING
REQUIRED TO CONTRIBUTE TO THE DISPERSION OF VIEWS ONE OPPOSES HAS A
SUBSTANTIAL LIMITING EFFECT ON ONE'S RIGHT TO SPEAK AND BE HEARD. 
CERTAINLY THESE RIGHTS WOULD BE LIMITED IF STATE ACTION SUBSTANTIALLY
REDUCED ONE'S ABILITY TO REACH HIS AUDIENCE.  BUT ARE THESE RIGHTS
SUBSTANTIALLY AFFECTED BY INCREASING THE OPPOSITION'S ABILITY TO REACH
THE SAME AUDIENCE?  I CAN CONCEIVE OF INSTANCES INVOLVING LIMITED
FACILITIES, SUCH AS TELEVISION TIME, WHICH MAY GO TO THE HIGHEST
BIDDER, WHEREIN INCREASING THE RESOURCES OF THE OPPOSITION MAY TEND TO
REDUCE A DISSIDENT'S ACCESS TO HIS AUDIENCE.  BUT BEFORE THE
CONSTITUTION COMES INTO PLAY, THERE SHOULD SURELY BE SOME SHOWING OF A
RELATIONSHIP BETWEEN REQUIRED FINANCIAL SUPPORT OF THE OPPOSITION AND
REDUCED ABILITY TO COMMUNICATE, A SHOWING I THINK HARDLY POSSIBLE IN
THE CASE OF THE LEGISLATIVE RECOMMENDATIONS OF THE WISCONSIN BAR.  AND,
ASIDE FROM THE CONSIDERATIONS OF FREEDOM FROM COMPELLED AFFIRMATIONS OF
BELIEF TO BE DISCUSSED LATER, I CAN FIND LITTLE BASIS FOR A RIGHT NOT
TO HAVE ONE'S OPPOSITION HEARD. 

BEYOND ALL THIS, THE ARGUMENT UNDER DISCUSSION IS CONTRADICTED IN THE
EVERYDAY OPERATION OF OUR SOCIETY.  OF COURSE IT IS DISAGREEABLE TO SEE
A GROUP, TO WHICH ONE HAS BEEN REQUIRED TO CONTRIBUTE, DECIDE TO SPEND
ITS MONEY FOR PURPOSES THE CONTRIBUTOR OPPOSES.  BUT THE CONSTITUTION
DOES NOT PROTECT AGAINST THE MERE PLAY OF PERSONAL EMOTIONS.  WE
RECOGNIZED IN HANSON THAT AN EMPLOYEE CAN BE REQUIRED TO CONTRIBUTE TO
THE PROPAGATION OF PERSONALLY REPUGNANT VIEWS ON WORKING CONDITIONS OR
RETIREMENT BENEFITS THAT ARE EXPRESSED ON UNION PICKET SIGNS OR IN
UNION HANDBILLS.  A FEDERAL TAXPAYER OBTAINS NO REFUND IF HE IS
OFFENDED BY WHAT IS PUT OUT BY THE UNITED STATES INFORMATION AGENCY. 
SUCH EXAMPLES COULD BE MULTIPLIED. 

FOR ME, THIS "DROWNING OUT" ARGUMENT FALLS APART UPON ANALYSIS. 

5.  "COMPELLED AFFIRMATION" OF BELIEF. 

IT IS ARGUED THAT THE REQUIREMENT OF BAR DUES PAYMENTS WHICH MAY BE
SPENT FOR LEGISLATIVE RECOMMENDATIONS WHICH THE PAYOR OPPOSES AMOUNTS
TO A COMPELLED AFFIRMATION OF BELIEF OF THE SORT THIS COURT STRUCK DOWN
IN WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624.  WHILE I
AGREE THAT THE RATIONALE OF BARNETTE IS RELEVANT, I DO NOT THINK THAT
IT IS IN ANY SENSE CONTROLLING THE PRESENT CASE. 

MR. JUSTICE JACKSON, WRITING FOR THE COURT IN BARNETTE, DID NOT VIEW
THE ISSUE AS TURNING MERELY "ON ONE'S POSSESSION OF PARTICULAR
RELIGIOUS VIEWS OR THE SINCERITY WITH WHICH THEY ARE HELD."  319 U.S.,
AT 634.  THE HOLDING OF BARNETTE WAS THAT, NO MATTER HOW STRONG OR WEAK
SUCH BELIEFS MIGHT BE, THE LEGISLATURE OF WEST VIRGINIA WAS NOT FREE TO
REQUIRE AS CONCRETE AND INTIMATE AN EXPRESSION OF BELIEF IN ANY CAUSE
AS THAT INVOLVED IN A COMPULSORY PLEDGE OF ALLEGIANCE.  IT IS IN THIS
LIGHT THAT ONE MUST ASSESS THE CONTENTION THAT, "COMPELLING A MAN BY
LAW TO PAY HIS MONEY TO ELECT CANDIDATES OR ADVOCATE LAWS OR DOCTRINES
HE IS AGAINST DIFFERS ONLY IN DEGREE, IF AT ALL, FROM COMPELLING HIM BY
LAW TO SPEAK FOR A CANDIDATE, A PARTY, OR A CAUSE HE IS AGAINST" (ANTE,
P. 788).  ONE COULD AS WELL SAY THAT THE SAME MERE DIFFERENCE IN DEGREE
DISTINGUISHES THE BARNETTE FLAG SALUTE SITUATION FROM A TAXPAYER'S
OBJECTIONS TO THE VIEWS A GOVERNMENT AGENCY PRESENTS, AT PUBLIC
EXPENSE, TO CONGRESS.  WHAT SEEMS TO ME OBVIOUS IS THE LARGE DIFFERENCE
IN DEGREE BETWEEN, ON THE ONE HAND, BEING COMPELLED TO RAISE ONE'S HAND
AND RECITE A BELIEF AS ONE'S OWN, AND, ON THE OTHER, BEING COMPELLED TO
CONTRIBUTE DUES TO A BAR ASSOCIATION FUND WHICH IS TO BE USED IN PART
TO PROMOTE THE EXPRESSION OF VIEWS IN THE NAME OF THE ORGANIZATION (NOT
IN THE NAME OF THE DUES PAYOR), WHICH VIEWS WHEN ADOPTED MAY TURN OUT
TO BE CONTRARY TO THE VIEWS OF THE DUES PAYOR.  I THINK THIS IS A
SITUATION WHERE THE DIFFERENCE IN DEGREE IS SO GREAT AS TO AMOUNT TO A
DIFFERENCE IN SUBSTANCE. 

IN BARNETTE THERE WAS A GOVERNMENTAL PURPOSE OF REQUIRING EXPRESSION
OF A VIEW IN ORDER TO ENCOURAGE ADOPTION OF THAT VIEW, MUCH THE SAME AS
WHEN A SCHOOL TEACHER REQUIRES A STUDENT TO WRITE A MESSAGE OF SELF
CORRECTION ON THE BLACKBOARD ONE HUNDRED TIMES.  IN THE PRESENT CASE
THERE IS NO INDICATION OF A GOVERNMENTAL PURPOSE TO FURTHER THE
EXPRESSION OF ANY PARTICULAR VIEW.  MORE THAN THAT, THE STATE BAR'S
PURPOSE OF FURTHERING EXPRESSION OF VIEWS IS UNCONNECTED WITH ANY
DESIRE TO INDUCE BELIEF OR CONVICTION BY THE DEVICE OF FORCING A PERSON
TO IDENTIFY HIMSELF WITH THE EXPRESSION OF SUCH VIEWS.  TRUE, PURPOSE
MAY NOT BE CONTROLLING WHEN THE IDENTIFICATION IS INTIMATE BETWEEN THE
PERSON WHO WISHES TO REMAIN SILENT AND THE BELIEFS FOISTED UPON HIM. 
BUT NO SUCH SITUATION EXISTS HERE WHERE THE CONNECTION BETWEEN THE
PAYMENT OF AN INDIVUDUAL'S DUES AND THE VIEWS TO WHICH HE OBJECTS IS
FACTUALLY SO REMOTE.  SURELY THE WISCONSIN SUPREME COURT IS RIGHT WHEN
IT SAYS THAT PETITIONER CAN BE EXPECTED TO REALIZE THAT "EVERYONE
UNDERSTANDS OR SHOULD UNDERSTAND" THAT THE VIEWS EXPRESSED ARE THOSE
"OF THE STATE BAR AS AN ENTITY SEPARATE AND DISTINCT FROM EACH
INDIVIDUAL."  5 WIS. 2D, AT 623, 93 N.W.2D, AT 603. 

INDEED, I THINK THE EXTREME DIFFICULTY THE COURT ENCOUNTERS IN THE
STREET CASE (ANTE, P. 740) IN FINDING A MECHANISM FOR REIMBURSING
DISSIDENT UNION MEMBERS FOR THEIR SHARE OF "POLITICAL" EXPENDITURES IS
WHOLLY OCCASIONED BY, AND IS INDICATIVE OF, THE MANY STEPS OF CHANGED
POSSESSION, OWNERSHIP, AND CONTROL OF DUES RECEIPTS AND THE MULTIPLE
STAGES OF DECISION MAKING WHICH SEPARATE THE DUES PAYOR FROM THE
POLITICAL EXPENDITURE OF SOME PART OF HIS DUES.  I THINK THESE MANY
STEPS AND STAGES REFLECT AS WELL UPON WHETHER THERE IS AN
IDENTIFICATION OF DUES PAYOR AND EXPENDITURE SO INTIMATE AS TO AMOUNT
TO A "COMPELLED AFFIRMATION."  SURELY IF THIS COURT IN STREET CAN ONLY
WITH GREAT DIFFICULTY - IF AT ALL - IDENTIFY THE CONTRIBUTIONS OF
PARTICULAR UNION MEMBERS WITH THE UNION'S POLITICAL EXPENDITURES, WE
SHOULD PAUSE BEFORE ASSUMING THAT PARTICULAR BAR MEMBERS CAN SENSIBLY
HEAR THEIR OWN VOICES WHEN THE STATE BAR SPEAKS AS AN ORGANIZATION. 

MR. JUSTICE CARDOZO, WRITING FOR HIMSELF, MR. JUSTICE BRANDEIS, AND
MR. JUSTICE STONE IN HAMILTON V. REGENTS, 293 U.S. 245, 265, THOUGHT
THAT THE REMOTENESS OF THE CONNECTION BETWEEN A CONSCIENTIOUS OBJECTION
TO WAR AND THE STUDY OF MILITARY SCIENCE WAS IN ITSELF SUFFICIENT TO
MAKE UNTENABLE A CLAIM THAT REQUIRING THIS STUDY IN STATE UNIVERSITIES
AMOUNTED TO A STATE ESTABLISHMENT OF RELIGION.   THESE JUSTICES THOUGHT
THE CASE EVEN CLEARER WHEN ALL THAT WAS INVOLVED WAS A CONTRIBUTION OF
MONEY: 

"MANIFESTLY A DIFFERENT DOCTRINE WOULD CARRY US TO LENGTHS THAT HAVE
NEVER YET BEEN DREAMED OF. THE CONSCIENTIOUS OBJECTOR, IF HIS LIBERTIES
WERE TO BE THUS EXTENDED, MIGHT REFUSE TO CONTRIBUTE TAXES IN
FURTHERANCE OF A WAR  ...  OR IN FURTHERANCE OF ANY OTHER END CONDEMNED
BY HIS CONSCIENCE AS IRRELIGIOUS OR IMMORAL.  THE RIGHT OF PRIVATE
JUDGMENT HAS NEVER YET BEEN SO EXALTED ABOVE THE POWERS AND THE
COMPULSION OF THE AGENCIES OF GOVERNMENT."  HAMILTON V. REGENTS, 293
U.S. 245, 268. 

NOR DO I NOW BELIEVE THAT A STATE TAXPAYER COULD OBJECT ON FOURTEENTH
AMENDMENT GROUNDS TO THE USE OF HIS MONEY FOR SCHOOL TEXTBOOKS OR
INSTRUCTION WHICH HE FINDS INTELLECTUALLY REPULSIVE, NOR FOR THE MERE
PURCHASE OF A FLAG FOR THE SCHOOL.  IN THE PRESENT CASE APPELLANT IS
SIMPLY REQUIRED TO PAY DUES INTO THE GENERAL FUNDS OF THE STATE BAR.  I
DO NOT THINK A SUBSEQUENT DECISION BY THE REPRESENTATIVES OF THE
MAJORITY OF THE BAR MEMBERS TO DEVOTE SOME PART OF THE ORGANIZATION'S
FUNDS TO THE FURTHERANCE OF A LEGISLATIVE PROPOSAL SO IDENTIFIES THE
INDIVIDUAL PAYOR OF DUES WITH THE BELIEF EXPRESSED THAT WE ARE IN THE
BARNETTE REALM OF "ASSERTED POWER TO FORCE AN AMERICAN CITIZEN PUBLICLY
TO PROFESS ANY STATEMENT OF BELIEF OR TO ENGAGE IN ANY CEREMONY OF
ASSENT TO ONE  ...  ."  319 U.S., AT 634. 

IT SEEMS TO ME EVIDENT THAT THE ACTUAL CORE OF APPELLANT'S COMPLAINT
AS TO "COMPELLED AFFIRMATION" IS NOT THE IDENTIFICATION WITH CAUSES TO
WHICH HE OBJECTS THAT MIGHT ARISE FROM SOME CONCEIVABLE TRACING OF THE
USE OF HIS DUES IN THEIR SUPPORT, BUT IS HIS FORCED ASSOCIATION WITH
THE INTEGRATED BAR.  THAT, HOWEVER, IS A BRIDGE WHICH, BEYOND ALL DOUBT
AND ANY PROTESTATIONS NOW MADE TO THE CONTRARY, WE CROSSED IN THE
HANSON CASE.  I CAN SEE NO WAY TO UNCROSS IT WITHOUT OVERRULING
HANSON.  CERTAINLY IT CANNOT BE DONE BY DECLARING AS A RULE OF LAW THAT
LAWYERS FEEL MORE STRONGLY ABOUT THE IDENTIFICATION OF THEIR NAMES WITH
PROPOSALS FOR LAW REFORM THAN UNION MEMBERS FEEL ABOUT THE
IDENTIFICATION OF THEIR NAMES WITH COLLECTIVE BARGAINING DEMANDS
DECLARED ON THE RADIO, IN PICKET SIGNS, AND ON HANDBILLS. 

                          II. 

WHILE I THINK THAT WHAT HAS BEEN SAID MIGHT WELL DISPOSE OF THIS CASE
WITHOUT MORE, IN THAT WISCONSIN LAWYERS RETAIN "FULL FREEDOM TO THINK
THEIR OWN THOUGHTS, SPEAK THEIR OWN MINDS, SUPPORT THEIR OWN CAUSES AND
WHOLEHEARTEDLY FIGHT WHATEVER THEY ARE AGAINST" (POST, P. 874), I SHALL
PASS ON TO CONSIDER THE STATE INTEREST INVOLVED IN THE ESTABLISHMENT OF
THE INTEGRATED BAR, THE OTHER INGREDIENT OF ADJUDICATION WHICH ARISES
WHENEVER INCIDENTAL IMPINGEMENT UPON SUCH FREEDOMS MAY FAIRLY BE SAID
TO DRAW IN QUESTION GOVERNMENTAL ACTION.  SEE, E.G., BARENBLATT V.
UNITED STATES, 360 U.S. 109; KONIGSBERG V. STATE BAR OF CALIFORNIA,
SUPRA. 

IN THIS INSTANCE IT CAN HARDLY BE DOUBTED THAT IT WAS
CONSTITUTIONALLY PERMISSIBLE FOR WISCONSIN TO REGARD THE FUNCTIONS OF
AN INTEGRATED BAR AS SUFFICIENTLY IMPORTANT TO JUSTIFY WHATEVER
INCURSIONS ON THESE INDIVIDUAL FREEDOMS MAY BE THOUGHT TO ARISE FROM
THE OPERATIONS OF THE ORGANIZATION.  THE WISCONSIN SUPREME COURT HAS
DESCRIBED THE FIELDS OF THE STATE BAR'S LEGISLATIVE ACTIVITIES AND HAS
ASSERTED ITS READINESS TO RESTRICT LEGISLATIVE RECOMMENDATIONS TO THOSE
FIELDS: 

"THIS COURT TAKES JUDICIAL NOTICE OF THE ACTIVITIES OF THE STATE BAR
IN THE LEGISLATIVE FIELD SINCE ITS CREATION BY THIS COURT IN 1956.  IN
EVERY INSTANCE THE LEGISLATIVE MEASURES ADVOCATED OR OPPOSED HAVE DEALT
WITH THE ADMINISTRATION OF JUSTICE, COURT REFORM, AND LEGAL PRACTICE. 
NEITHER THE ABOVE-QUOTED BY-LAWS NOR THE STATED PURPOSES SET FORTH IN
STATE BAR TO BE ENGAGED IN LEGISLATIVE ACTIVITIES UNRELATED TO THESE
THREE SUBJECTS  ...  .  HOWEVER, AS WE POINTED OUT IN OUR OPINION IN
THE 1958 IN RE INTEGRATION OF THE BAR CASE, THIS COURT WILL EXERCISE
ITS INHERENT POWER TO TAKE REMEDIAL ACTION SHOULD THE STATE BAR ENGAGE
IN AN ACTIVITY NOT AUTHORIZED BY THE RULES AND BY-LAWS AND NOT IN
KEEPING WITH THE STATED OBJECTIVES FOR WHICH IT WAS CREATED.  IF THE
LAWYERS OF THE STATE WISH BY GROUP ACTION TO ENGAGE IN LEGISLATIVE
ACTIVITIES NOT SO AUTHORIZED THEY WILL HAVE TO DO SO WITHIN THE
FRAMEWORK OF SOME VOLUNTARY ASSOCIATION, AND NOT THE STATE BAR."  10
WIS. 2D 230, 239-240, 102 N.W.2D 404, 409-410.    FURTHER, THE SAME
COURT HAS DECLARED ITS BELIEF THAT THE LAWYERS OF THE STATE POSSESS AN
EXPERTISE USEFUL TO THE PUBLIC INTEREST WITHIN THESE FIELDS: 

"WE ARE OF THE OPINION THAT THE PUBLIC WELFARE WILL BE PROMOTED BY
SECURING AND PUBLICIZING THE COMPOSITE JUDGMENT OF THE MEMBERS OF THE
BAR OF THE STATE ON MEASURES DIRECTLY AFFECTING THE ADMINISTRATION OF
JUSTICE AND THE PRACTICE OF LAW.  THE GENERAL PUBLIC AND THE
LEGISLATURE ARE ENTITLED TO KNOW HOW THE PROFESSION AS A WHOLE STANDS
ON SUCH TYPE OF PROPOSED LEGISLATION.  THIS IS A FUNCTION AN INTEGRATED
BAR, WHICH IS AS DEMOCRATICALLY GOVERNED AND ADMINISTERED AS THE STATE
BAR, CAN PERFORM MUCH MORE EFFECTIVELY THAN CAN A VOLUNTARY BAR
ASSOCIATION."  IBID. 

I DO NOT THINK THAT THE STATE COURT'S VIEW IN THIS RESPECT CAN BE
CONSIDERED IN ANY WAY UNREASONABLE. 

"THE COMPOSITE JUDGMENT OF THE MEMBERS OF THE BAR OF THE STATE ON
MEASURES DIRECTLY AFFECTING THE ADMINISTRATION OF JUSTICE AND THE
PRACTICE OF LAW" MAY WELL BE AS HELPFUL AND INFORMATIVE TO A STATE
LEGISLATURE AS THE WORK OF INDIVIDUAL LEGAL SCHOLARS AND OF SUCH
ORGANIZATIONS AS THE AMERICAN LAW INSTITUTE, FOR EXAMPLE, IS TO STATE
AND FEDERAL COURTS.  STATE AND FEDERAL COURTS ARE, OF COURSE,
INDIFFERENT TO THE PERSONAL BELIEFS AND PREDILECTIONS OF ANY OF SUCH
GROUPS.  THE FUNCTION SUCH GROUPS SERVE IS A RATIONALIZING ONE AND
THEIR POWER FLOWS FROM AND IS LIMITED TO THEIR ABILITY TO CONVINCE BY
ARGUMENTS FROM GENERALLY AGREED UPON PREMISES.  THEY ARE EXERCISING THE
TECHNIQUES AND KNOWLEDGE WHICH LAWYERS ARE TRAINED TO POSSESS IN THE
TASK OF SOLVING PROBLEMS WITH WHICH THE LEGAL PROFESSION IS MOST
FAMILIAR.  THE NUMBERLESS JUDICIAL CITATIONS TO THEIR WORK IS PROOF
ENOUGH OF THEIR USEFULNESS IN THE JUDICIAL DECISION-MAKING PROCESS. 
(FN3) 

LEGISLATURES TOO HAVE FOUND THAT THEY CAN BENEFIT FROM A LEGAL
"EXPERT'S EFFORT TO IMPROVE THE LAW IN TECHNICAL AND NON-CONTROVERSIAL
AREAS."  DULLES V. JOHNSON, 273 F.2D 362, 367.  IN THE WORDS OF THE
EXECUTIVE SECRETARY OF THE NEW YORK LAW REVISION COMMISSION, THERE ARE
AREAS IN WHICH "LAWYERS AS LAWYERS HAVE MORE TO OFFER, TO SOLVE A GIVEN
QUESTION, THAN OTHER SKILLED PERSONS OR GROUPS."  40 CORNELL L.Q. 641,
644.  SEE ALSO CARDOZO, A MINISTRY OF JUSTICE, 35 HARV. L. REV. 113. 
THE ACTS RECOMMENDED BY THE COMMISSIONERS ON UNIFORM STATE LAWS HAVE
BEEN ADOPTED ON OVER 1,300 OCCASIONS BY THE LEGISLATURES OF THE FIFTY
STATES, PUERTO RICO, AND THE DISTRICT OF COLUMBIA.  HANDBOOK OF THE
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS (1960), AT
P. 207.  THERE IS NO WAY OF COUNTING THE NUMBER OF OCCASIONS ON WHICH
STATE LEGISLATURES HAVE UTILIZED THE ASSISTANCE OF LEGAL ADVISORY
GROUPS.  SOME INDICATION MAY BE OBTAINED BY NOTING THAT THIRTY-ONE
JURISDICTIONS HAVE PERMANENT LEGISLATIVE SERVICE AGENCIES WHICH
RECOMMEND "SUBSTANTIVE" LEGISLATIVE PROGRAMS AND FORTY-TWO
JURISDICTIONS UTILIZE SUCH PERMANENT AGENCIES IN RECOMMENDING STATUTORY
REVISION.  (FN4) 

IN THIS LIGHT I CAN ONLY REGARD AS ENTIRELY GRATUITOUS A CONTENTION
THAT THERE IS ANYTHING LESS THAN A MOST SUBSTANTIAL STATE INTEREST IN
WISCONSIN HAVING THE VIEWS OF THE MEMBERS OF ITS BAR "ON MEASURES
DIRECTLY AFFECTING THE ADMINISTRATION OF JUSTICE AND THE PRACTICE OF
LAW."  NOR CAN I TAKE SERIOUSLY A SUGGESTION THAT THE LAWYERS OF
WISCONSIN ARE MERELY BEING POLLED ON MATTERS OF THEIR OWN PERSONAL
BELIEF OR PREDILECTION, ANY MORE THAN CONGRESS HAD IN MIND SUCH A POLL
WHEN IT MADE IT THE DUTY OF FEDERAL CIRCUIT JUDGES SUMMONED TO ATTEND
THE JUDICIAL CONFERENCE OF THE UNITED STATES "TO ADVISE  ...  AS TO ANY
MATTERS IN RESPECT OF WHICH THE ADMINISTRATION OF JUSTICE IN THE COURTS
OF THE UNITED STATES MAY BE IMPROVED."  42 STAT. 837, 838. 

                                       III. 

BEYOND THIS CONJUNCTION OF A HIGHLY SIGNIFICANT STATE NEED AND THE
CHIMERICAL NATURE OF THE CLAIMS OF ABRIDGMENT OF INDIVIDUAL FREEDOM,
THERE IS STILL A FURTHER APPROACH TO THE ENTIRE PROBLEM THAT COMBINES
BOTH OF THESE ASPECTS AND REINFORCES MY BELIEF IN THE CONSTITUTIONALITY
OF THE INTEGRATED BAR. 

I HAD SUPPOSED IT BEYOND DOUBT THAT A STATE LEGISLATURE COULD SET UP
A STAFF OR COMMISSION TO RECOMMEND CHANGES IN THE MORE OR LESS
TECHNICAL AREAS OF THE LAW INTO WHICH NO WELL-ADVISED LAYMEN WOULD
VENTURE WITHOUT THE ASSISTANCE OF COUNSEL.  A STATE LEGISLATURE COULD
CERTAINLY APPOINT A COMMISSION TO MAKE RECOMMENDATIONS TO IT ON THE
DESIRABILITY OF PASSING OR MODIFYING ANY OF THE COUNTLESS UNIFORM LAWS
DEALING WITH ALL KINDS OF LEGAL SUBJECTS, RUNNING ALL THE WAY FROM THE
UNIFORM COMMERCIAL CODE TO THE UNIFORM SIMULTANEOUS DEATH LAW.  (FN5)
IT SEEMS NO LESS CLEAR TO ME THAT A REASONABLE LICENSE TAX CAN BE
IMPOSED ON THE PROFESSION OF BEING A LAWYER, DOCTOR, DENTIST, ETC.  SEE
ROYALL V. VIRGINIA, 116 U.S. 572.  IN THESE CIRCUMSTANCES, WHEREIN LIES
THE UNCONSTITUTIONALITY OF WHAT WISCONSIN HAS DONE?  DOES THE
CONSTITUTION FORBID THE PAYMENT OF SOME PART OF THE CONSTITUTIONAL
LICENSE FEE DIRECTLY TO THE EQUALLY CONSTITUTIONAL STATE LAW REVISION
COMMISSION?  OR IS IT THAT SUCH A COMMISSION CANNOT BE CHOSEN BY A
MAJORITY VOTE OF ALL THE MEMBERS OF THE STATE BAR?  OR COULD IT BE THAT
THE FEDERAL CONSTITUTION REQUIRES A SEPARATION OF STATE POWERS
ACCORDING TO WHICH A STATE LEGISLATURE CAN TAX AND SET UP COMMISSIONS
BUT A STATE JUDICIARY CANNOT DO THESE THINGS? 

I END AS I BEGAN.  IT IS EXCEEDINGLY REGRETTABLE THAT SUCH SPECIOUS
CONTENTIONS AS APPELLANT MAKES IN THIS CASE SHOULD HAVE RESULTED IN
PUTTING THE INTEGRATED BAR UNDER THIS CLOUD OF PARTIAL
UNCONSTITUTIONALITY. 

FN1  ALABAMA, ALASKA, ARIZONA, CALIFORNIA, FLORIDA, IDAHO, KENTUCKY,
LOUISIANA, MICHIGAN, MISSISSIPPI, MISSOURI, NEBRASKA, NEVADA, NEW
MEXICO, NORTH CAROLINA, NORTH DAKOTA, OKLAHOMA, OREGON, SOUTH DAKOTA,
TEXAS, UTAH, VIRGINIA, WASHINGTON, WEST VIRGINIA, WYOMING.  SEE NOTE
14, DISSENTING OPINION OF MR. JUSTICE FRANKFURTER IN INTERNATIONAL
MACHINISTS V. STREET, ANTE, P. 808.  ARKANSAS HAS A BAR WHICH IS
INTEGRATED ONLY WITH RESPECT TO DISCIPLINARY MATTERS.  207 ARK. XXXIV
XXXVII. 

FN2  AMONG OTHER THINGS, THE INTEGRATED BAR OF THE STATE OF WISCONSIN
IS AUTHORIZED BY THE STATE SUPREME COURT, ACTING UNDER ITS INHERENT
RULE-MAKING POWERS, TO PUBLISH INFORMATION RELATING TO "THE PRACTICE OF
LAW, THE SCIENCE OF JURISPRUDENCE AND LAW REFORM, AND THE RELATIONS OF
THE BAR TO THE PUBLIC."  RULE 1, 273 WIS. XI.  RULE 4, SEC. 4, PROVIDES
FOR STANDING COMMITTEES INCLUDING, INTER ALIA, COMMITTEES ON
ADMINISTRATION OF JUSTICE AND ON LEGISLATION.  273 WIS. XVI.  THE
FUNCTION OF THE FORMER, AS SET OUT IN ART. IV, SEC. 4, OF THE BY-LAWS,
273 WIS. XXXIII, IS TO "STUDY THE ORGANIZATION AND OPERATION OF THE
WISCONSIN JUDICIAL SYSTEM AND  ...  RECOMMEND FROM TIME TO TIME
APPROPRIATE CHANGES IN PRACTICE AND PROCEDURE FOR IMPROVING THE
EFFICIENCY THEREOF  ...  ."  THE FUNCTION OF THE COMMITTEE ON
LEGISLATION IS TO STUDY AND, IN CERTAIN CIRCUMSTANCES, SUPPORT OR
OPPOSE "PROPOSALS SUBMITTED TO THE WISCONSIN LEGISLATURE OR THE
CONGRESS OF THE UNITED STATES FOR CHANGES IN THE STATUTES RELATING TO
THE COURTS OR THE PRACTICE OF LAW  ...  ."  ART. IV, SEC. 9, 273 WIS.
XXXIV.  THE ENABLING COURT RULES INDICATE AUTHORIZATION FOR FURTHER
STUDY AND COMMENT ON PROPOSED LEGISLATION, FOR THE BOARD OF GOVERNORS
IS DIRECTED TO ESTABLISH SECTIONS ON CORPORATION AND BUSINESS LAW;
FAMILY LAW; HOUSE COUNSEL; INSURANCE, NEGLIGENCE AND WORKMEN'S
COMPENSATION LAW; LABOR RELATIONS LAW; MILITARY LAW; REAL PROPERTY,
PROBATE, AND TRUST LAW; AND TAXATION.  273 WIS. XVII.  THE PLURALITY
OPINION OF THIS COURT SETS OUT THE NATURE AND SCOPE OF THE ACTIVITIES
BEARING ON PROSPECTIVE LEGISLATION ACTUALLY ENGAGED IN BY THIS
INTEGRATED BAR.  ANTE, PP. 835-839. 

FN3  THE NINE RESTATEMENTS OF THE LAW ALONE HAVE BEEN CITED WELL OVER
27,000 TIMES.  36TH ANNUAL MEETING, THE AMERICAN LAW INSTITUTE, AT P.
63. 

FN4  "PERMANENT LEGISLATIVE SERVICE AGENCIES," PUBLISHED BY THE
COUNCIL OF STATE GOVERNMENTS. 

FN5  IN THIRTY-THREE STATES THE LEGISLATURE APPOINTS COMMISSIONERS ON
UNIFORM STATE LAWS.  HANDBOOK OF THE NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS (1960), AT P. 211. 

MR. JUSTICE WHITTAKER, CONCURRING IN RESULT. 

BELIEVING THAT THE STATE'S REQUIREMENT THAT A LAWYER PAY TO ITS
DESIGNEE AN ANNUAL FEE OF $15 AS A CONDITION OF ITS GRANT, OR OF
CONTINUING ITS GRANT, TO HIM OF THE SPECIAL PRIVILEGE (WHICH IS WHAT IT
IS) OF PRACTICING LAW IN THE STATE - WHICH IS REALLY ALL THAT IS
INVOLVED HERE - DOES NOT VIOLATE ANY PROVISION OF THE UNITED STATES
CONSTITUTION, I CONCUR IN THE JUDGMENT. 

MR. JUSTICE BLACK, DISSENTING. 

I DO NOT BELIEVE THAT EITHER THE BENCH, THE BAR OR THE LITIGANTS WILL
KNOW WHAT HAS BEEN DECIDED IN THIS CASE - CERTAINLY I DO NOT.  TWO
MEMBERS OF THE COURT, SAYING THAT "THE CONSTITUTIONAL ISSUE IS
INESCAPABLY BEFORE US," VOTE TO AFFIRM THE HOLDING OF THE WISCONSIN
SUPREME COURT THAT A STATE CAN, WITHOUT VIOLATING THE FEDERAL
CONSTITUTION, COMPEL LAWYERS OVER THEIR PROTEST TO PAY DUES TO BE USED
IN PART FOR THE SUPPORT OF LEGISLATION AND CAUSES THEY DETEST.  ANOTHER
MEMBER, APPARENTLY AGREEING THAT THE CONSTITUTIONAL QUESTION IS
PROPERLY HERE, VOTES TO AFFIRM THE HOLDING OF THE WISCONSIN SUPREME
COURT BECAUSE HE BELIEVES THAT A STATE MAY CONSTITUTIONALLY REQUIRE A
LAWYER TO PAY A FEE TO ITS "DESIGNEE" AS A CONDITION TO GRANTING HIM
THE "SPECIAL PRIVILEGE" OF PRACTICING LAW, EVEN THOUGH THAT "DESIGNEE,"
OVER THE LAWYER'S PROTEST, USES PART OF THE FEE TO SUPPORT CAUSES THE
LAWYER DETESTS.  TWO OTHER MEMBERS OF THE COURT VOTE TO REVERSE THE
JUDGMENT OF THE WISCONSIN COURT ON THE GROUND THAT THE CONSTITUTIONAL
QUESTION IS PROPERLY HERE AND THE POWERS CONFERRED ON THE WISCONSIN
STATE BAR BY THE LAWS OF THAT STATE VIOLATE THE FIRST AND FOURTEENTH
AMENDMENTS.  FINALLY, FOUR MEMBERS OF THE COURT VOTE TO AFFIRM ON THE
GROUND THAT THE CONSTITUTIONAL QUESTION IS ACTUALLY NOT HERE FOR
DECISION AT ALL.  THUS THE ONLY PROPOSITION IN THIS CASE FOR WHICH
THERE IS A MAJORITY IS THAT THE CONSTITUTIONAL QUESTION IS PROPERLY
HERE, AND THE FIVE MEMBERS OF THE COURT WHO MAKE UP THAT MAJORITY
EXPRESS THEIR VIEWS ON THIS CONSTITUTIONAL QUESTION.  YET A MINORITY OF
FOUR REFUSES TO PASS ON THE QUESTION AND IT IS THEREFORE LEFT
COMPLETELY UP IN THE AIR - THE COURT DECIDES NOTHING.  IF EVER THERE
WERE TWO CASES THAT SHOULD BE SET OVER FOR REARGUMENT IN ORDER FOR THE
COURT TO DECIDE - OR AT LEAST TO MAKE AN ORDERLY ATTEMPT TO DECIDE -
THE BASIC CONSTITUTIONAL QUESTION INVOLVED IN BOTH OF THEM, IT IS THIS
CASE AND THE COMPANION CASE OF INTERNATIONAL ASSOCIATION OF MACHINISTS
V. STREET.  (FN1)  IN THIS STATE OF AFFAIRS, I FIND IT NECESSARY TO SET
OUT MY VIEWS ON THE QUESTIONS WHICH I THINK ARE PROPERLY PRESENTED AND
ARGUED BY THE PARTIES. 

IN MY JUDGMENT, THIS COURT CANNOT PROPERLY AVOID DECISION OF THE
SINGLE, SHARPLY DEFINED CONSTITUTIONAL ISSUE WHICH THIS CASE PRESENTS. 
THE APPELLANT FILED A COMPLAINT IN A WISCONSIN CIRCUIT COURT, CHARGING
THAT HE IS BEING COMPELLED BY THE STATE OF WISCONSIN, AS A PREREQUISITE
TO MAINTAINING HIS STATUS AS A LAWYER IN GOOD STANDING, TO BE A MEMBER
OF AN ASSOCIATION KNOWN AS THE STATE BAR OF WISCONSIN AND TO PAY DUES
TO THAT ASSOCIATION; THAT HE HAS PAID THESE DUES ONLY UNDER PROTEST;
THAT THE STATE BAR OF WISCONSIN IS USING HIS MONEY ALONG WITH THE
MONEYS IT HAS COLLECTED FROM OTHER WISCONSIN LAWYERS TO ENGAGE IN
ACTIVITIES OF A POLITICAL AND PROPAGANDISTIC NATURE IN FAVOR OF
OBJECTIVES TO WHICH HE IS OPPOSED AND AGAINST OBJECTIVES WHICH HE
FAVORS; AND THAT, AS A CONSEQUENCE OF THIS COMPELLED FINANCIAL SUPPORT
OF POLITICAL VIEWS TO WHICH HE IS PERSONALLY ANTAGONISTIC, HE IS BEING
DEPRIVED OF RIGHTS GUARANTEED TO HIM BY THE FIRST AND FOURTEENTH
AMENDMENTS OF THE FEDERAL CONSTITUTION.  UPON DEMURRER TO THIS
COMPLAINT, THE CIRCUIT COURT HELD THAT IT MUST BE DISMISSED WITHOUT
LEAVE TO AMEND BECAUSE, IN THE OPINION OF THAT COURT, "IT WOULD BE
IMPOSSIBLE TO FRAME A COMPLAINT SO AS TO STATE FACTS SUFFICIENT TO
CONSTITUTE A CAUSE OF ACTION AGAINST EITHER THE STATE BAR OF WISCONSIN
OR THE DEFENDANT DONOHUE."  (FN2) 

ON APPEAL, THE SUPREME COURT OF WISCONSIN, RELYING UPON ITS POWERS OF
JUDICIAL NOTICE, FOUND AS A FACT THAT THE STATE BAR DOES EXPEND SOME OF
THE MONEYS IT COLLECTS AS DUES TO FURTHER AND OPPOSE LEGISLATION (FN3)
AND THAT COURT ALSO ACCEPTED, AT ITS FULL FACE VALUE, THE ALLEGATION OF
THE COMPLAINT THAT MANY OF THESE EXPENDITURES FURTHERED VIEWS DIRECTLY
CONTRARY TO THOSE HELD BY THE APPELLANT.  (FN4)  THE WISCONSIN SUPREME
COURT NEVERTHELESS AFFIRMED THE JUDGMENT OF THE TRIAL COURT ON THE
GROUND THAT THE PUBLIC INTEREST IN HAVING "PUBLIC EXPRESSION OF THE
VIEWS OF A MAJORITY OF LAWYERS OF THE STATE, WITH RESPECT TO
LEGISLATION AFFECTING THE ADMINISTRATION OF JUSTICE AND THE PRACTICE OF
LAW  ...  FAR OUTWEIGHS THE SLIGHT INCONVENIENCE TO," AND HENCE ANY
ABRIDGMENT OF THE CONSTITUTIONAL RIGHTS OF, THOSE WHO DISAGREE WITH THE
VIEWS ADVOCATED BY THE STATE BAR.  (FN5) 

THE PLURALITY DECISION TO AFFIRM THE JUDGMENT OF THE WISCONSIN COURTS
ON THE GROUND THAT THE ISSUE IN THE CASE IS NOT "SHAPED  ...  AS LEANLY
AND AS SHARPLY AS JUDICIAL JUDGMENT UPON AN EXERCISE OF ...  (STATE)
POWER REQUIRES" IS, IN MY JUDGMENT, WRONG ON AT LEAST TWO GROUNDS. 
FIRST OF ALL, IT COMPLETELY DENIES THE APPELLANT AN OPPORTUNITY TO
AMEND HIS COMPLAINT SO AS TO "SHAPE" THE ISSUE IN A MANNER THAT WOULD
BE ACCEPTABLE TO THIS COURT.  APPELLANT'S COMPLAINT WAS DISMISSED BY
THE WISCONSIN COURTS, WITHOUT GIVING HIM A CHANCE TO AMEND IT AND
BEFORE HE HAD AN OPPORTUNITY TO BRING OUT THE FACTS IN THE CASE, SOLELY
BECAUSE THOSE COURTS BELIEVED THAT IT WOULD BE IMPOSSIBLE FOR HIM TO
ALLEGE ANY FACTS SUFFICIENT TO ENTITLE HIM TO RELIEF.  THE PLURALITY
NOW SUGGESTS, BY IMPLICATION, THAT THE WISCONSIN COURTS WERE WRONG ON
THIS POINT AND THAT APPELLANT COULD POSSIBLY MAKE OUT A CASE UNDER HIS
COMPLAINT.  WHY THEN IS THE CASE NOT REMANDED TO THE WISCONSIN COURTS
IN ORDER THAT THE APPELLANT WILL HAVE AT LEAST ONE OPPORTUNITY TO MEET
THIS COURT'S FASTIDIOUS PLEADING DEMANDS?  THE OPINIONS OF THE
WISCONSIN COURTS IN THIS CASE INDICATE THAT THE LAWS OF THAT STATE - AS
DO THE LAWS IN MOST CIVILIZED JURISDICTIONS - PERMIT AMENDMENTS AND
CLARIFICATIONS OF COMPLAINTS WHERE DEFECTS EXIST IN THE ORIGINAL
COMPLAINT WHICH CAN BE CURED.  AND EVEN IF WISCONSIN LAW WERE TO THE
CONTRARY, IT IS SETTLED BY THE DECISIONS OF THIS COURT THAT A FEDERAL
RIGHT CANNOT BE DEFEATED MERELY ON THE GROUND THAT THE ORIGINAL
COMPLAINT CONTAINED A CURABLE DEFECT.  (FN6)  ON THIS POINT, THE
JUDGMENT OF THE COURT AFFIRMING THE DISMISSAL OF APPELLANT'S SUIT,
INSOFAR AS THAT JUDGMENT RESTS UPON THE PLURALITY OPINION, SEEMS TO ME
TO BE TOTALLY WITHOUT JUSTIFICATION, EITHER IN REASON, IN PRECEDENT OR
IN JUSTICE.  (FN7) 

MY SECOND GROUND OF DISAGREEMENT WITH THE PLURALITY OPINION IS THAT I
THINK WE SHOULD CONSIDER AND DECIDE NOW THE CONSTITUTIONAL ISSUE RAISED
IN THIS CASE.  NO ONE HAS SUGGESTED THAT THIS IS A CONTRIVED OR
HYPOTHETICAL LAWSUIT.  INDEED, WE HAVE IT ON NO LESS AUTHORITY THAN
THAT OF THE SUPREME COURT OF WISCONSIN THAT THE WISCONSIN STATE BAR
DOES IN FACT USE MONEY EXTRACTED FROM THIS APPELLANT UNDER COLOR OF LAW
TO ENGAGE IN ACTIVITIES INTENDED TO INFLUENCE LEGISLATION.  THE
APPELLANT HAS ALLEGED, IN A COMPLAINT SWORN TO UNDER OATH, THAT MANY OF
THESE ACTIVITIES ARE IN OPPOSITION TO THE ADOPTION OF LEGISLATION WHICH
HE FAVORS.  IN SUCH A SITUATION, IT SEEMS TO ME TO BE NOTHING MORE THAN
THE EMPTIEST FORMALISM TO SUGGEST THAT THE CASE CANNOT BE DECIDED
BECAUSE THE APPELLANT FAILED TO ALLEGE, AS PRECISELY AS FOUR MEMBERS OF
THIS COURT THINK HE SHOULD, WHAT IT IS THAT THE BAR DOES WITH WHICH HE
DISAGREES.  AND IT CERTAINLY SEEMS UNJUST FOR THE APPELLANT TO BE
THROWN OUT OF COURT COMPLETELY WITHOUT BEING GIVEN A CHANCE TO AMEND
HIS COMPLAINT AND FOR A JUDGMENT AGAINST HIM TO BE AFFIRMED WITHOUT
CONSIDERATION OF THE MERITS OF HIS CAUSE EVEN THOUGH THAT JUDGMENT MAY
LATER BE HELD TO CONSTITUTE A COMPLETE BAR TO ASSERTION OF HIS FIRST
AMENDMENT RIGHTS.  EVEN IF THE COMPLAINT IN THIS CASE HAD BEEN DRAWN IN
RIGID CONFORMITY TO THE METICULOUS REQUIREMENTS OF THE PLURALITY, WE
WOULD BE PRESENTED WITH NOTHING BUT THE VERY SAME QUESTION NOW BEFORE
US:  CAN A STATE, CONSISTENTLY WITH THE FIRST AND FOURTEENTH
AMENDMENTS, FORCE A PERSON TO SUPPORT FINANCIALLY THE ACTIVITIES OF AN
ORGANIZATION IN SUPPORT OF VIEWS TO WHICH HE IS OPPOSED?  THUS, THE
BEST, IF NOT THE ONLY, REASON I CAN THINK OF FOR NOT RESOLVING THAT
QUESTION NOW IS THAT A DECISION ON THE CONSTITUTIONAL QUESTION IN THIS
CASE WOULD MAKE IT IMPOSSIBLE FOR THE COURT TO RELY UPON THE DOCTRINE
OF AVOIDANCE WITH RESPECT TO THAT SAME CONSTITUTIONAL QUESTION TO
JUSTIFY ITS STRAINED INTERPRETATION OF THE RAILWAY LABOR ACT IN THE
STREET CASE.  (FN8) 

ON THE MERITS, THE QUESTION POSED IN THIS CASE IS, IN MY JUDGMENT,
IDENTICAL TO THAT POSED TO BUT AVOIDED BY THE COURT IN THE STREET
CASE.  THUS, THE SAME REASONS THAT LED ME TO CONCLUDE THAT IT VIOLATES
THE FIRST AMENDMENT FOR A UNION TO USE DUES COMPELLED UNDER A UNIONSHOP
AGREEMENT TO ADVOCATE VIEWS CONTRARY TO THOSE ADVOCATED BY THE WORKERS
PAYING THE DUES UNDER PROTEST LEAD ME TO THE CONCLUSION THAT AN
INTEGRATED BAR CANNOT TAKE THE MONEY OF PROTESTING LAWYERS AND USE IT
TO SUPPORT CAUSES THEY ARE AGAINST.  WHAT I HAVE SAID IN THE STREET
CASE WOULD BE ENOUGH FOR ME TO DISPOSE OF THE ISSUES IN THIS CASE WERE
IT NOT FOR THE CONTENTION WHICH HAS BEEN URGED BY THE APPELLEE
THROUGHOUT THIS CASE THAT THERE ARE DISTINGUISHING FEATURES THAT WOULD
JUSTIFY THE AFFIRMANCE OF THIS CASE EVEN IF THE STATUTE IN THE STREET
CASE WERE STRUCK DOWN AS UNCONSTITUTIONAL. 

THE APPELLEE'S CONTENTION IN THIS RESPECT RESTS UPON TWO DIFFERENT
ARGUMENTS.  THE FIRST OF THESE IS THAT THE USE OF COMPELLED DUES BY AN
INTEGRATED BAR TO FURTHER LEGISLATIVE ENDS CONTRARY TO THE WISHES OF
SOME OF ITS MEMBERS CAN BE UPHELD UNDER THE SO-CALLED "BALANCING TEST,"
WHICH PERMITS ABRIDGMENT OF FIRST AMENDMENT RIGHTS SO LONG AS THAT
ABRIDGMENT FURTHERS SOME LEGITIMATE PURPOSE OF THE STATE.  (FN9)  UNDER
THIS THEORY, THE APPELLEE CONTENDS, ABRIDGMENTS OF SPEECH "INCIDENTAL"
TO AN INTEGRATED BAR MUST BE UPHELD BECAUSE THE INTEGRATED BAR PERFORMS
MANY VALUABLE SERVICES FOR THE PUBLIC.  AS POINTED OUT ABOVE, THE
WISCONSIN SUPREME COURT EMBRACED THIS THEORY IN EXPRESS TERMS.  AND THE
CONCURRING OPINION OF MR. JUSTICE HARLAN, THOUGH NOT PURPORTING TO
DISTINGUISH THE STREET CASE, ALSO ADOPTS THE CASE-BY-CASE "BALANCING"
APPROACH UNDER WHICH SUCH A DISTINCTION AS, INDEED, ANY DESIRED
DISTINCTION IS POSSIBLE. 

THE "BALANCING" ARGUMENT HERE IS IDENTICAL TO THAT WHICH HAS RECENTLY
PRODUCED A LONG LINE OF LIBERTY-STIFLING DECISIONS IN THE NAME OF "SELF
PRESERVATION."  (FN10) THE INTEREST OF THE STATE IN HAVING "PUBLIC
EXPRESSION OF THE VIEWS OF A MAJORITY OF THE LAWYERS" BY COMPELLING
DISSENTERS TO PAY MONEY AGAINST THEIR WILL TO ADVOCATE VIEWS THEY
DETEST IS MAGNIFIED TO THE POINT WHERE IT ASSUMES OVERPOWERING
PROPORTIONS AND APPEARS TO BECOME ALMOST AS NECESSARY A PART OF THE
FABRIC OF OUR SOCIETY AS THE NEED FOR "SELF-PRESERVATION."  ON THE
OTHER SIDE OF THE "SCALES," THE INTEREST OF LAWYERS IN BEING FREE FROM
SUCH STATE COMPULSION IS FIRST FRAGMENTIZED INTO ABSTRACT, IMAGINARY
PARTS, THEN MINIMIZED PART BY PART ALMOST TO THE POINT OF EXTINCTION,
AND FINALLY CHARACTERIZED AS BEING OF A PURELY "CHIMERICAL NATURE."  AS
IS TOO OFTEN THE CASE, WHEN THE CHERISHED FREEDOMS OF THE FIRST
AMENDMENT EMERGE FROM THIS PROCESS, THEY ARE TOO WEIGHTLESS TO HAVE ANY
SUBSTANTIAL EFFECT UPON THE CONSTITUTIONAL SCALES AND MUST THEREFORE BE
SACRIFICED IN ORDER NOT TO DISTURB WHAT ARE CONCEIVED TO BE THE MORE
IMPORTANT INTERESTS OF SOCIETY. 

I CANNOT AGREE THAT A CONTENTION ARISING FROM THE ABRIDGMENT OF FIRST
AMENDMENT FREEDOMS WHICH RESULTS FROM COMPELLED SUPPORT OF DETESTED
VIEWS CAN PROPERLY BE CHARACTERIZED AS OF A "CHIMERICAL NATURE" OR, IN
THE WORDS OF THE WISCONSIN SUPREME COURT, AS INVOLVING NOTHING MORE
THAN A "SLIGHT INCONVENIENCE."  (FN11)  QUITE THE CONTRARY, I CAN THINK
OF FEW PLAINER, MORE DIRECT ABRIDGMENTS OF THE FREEDOMS OF THE FIRST
AMENDMENT THAN TO COMPEL PERSONS TO SUPPORT CANDIDATES, PARTIES,
IDEOLOGIES OR CAUSES THAT THEY ARE AGAINST.  AND, AS STATED MANY TIMES
BEFORE, I DO NOT SUBSCRIBE TO THE THEORY THAT ABRIDGMENTS OF FIRST
AMENDMEND FREEDOMS CAN EVER BE PERMITTED ON A "BALANCING" BASIS. 
(FN12)  I REITERATE MY BELIEF THAT THE UNEQUIVOCAL LANGUAGE OF THE
FIRST AMENDMENT WAS INTENDED TO MEAN AND DOES MEAN THAT THE FRAMERS OF
THE BILL OF RIGHTS DID ALL OF THE "BALANCING" THAT WAS TO BE DONE IN
THIS AREA.  IT IS MY FIRM BELIEF THAT, IN THE LONG RUN, THE CONTINUED
EXISTENCE OF LIBERTY IN THIS COUNTRY DEPENDS UPON THE ABANDONMENT OF
THE CONSTITUTIONAL DOCTRINE THAT PERMITS THIS COURT TO REWEIGH THE
VALUES WEIGHED BY THE FRAMERS AND THUS TO WEAKEN THE PROTECTIONS OF THE
BILL OF RIGHTS.  THIS CASE REAFFIRMS THAT BELIEF FOR IT SHOWS THAT THE
BALANCING TEST CANNOT BE AND WILL NOT BE CONTAINED TO APPLY ONLY TO
THOSE "HARD" CASES WHICH AT LEAST SOME MEMBERS OF THIS COURT HAVE
REGARDED AS INVOLVING THE QUESTION OF THE POWER OF THIS COUNTRY TO
PRESERVE ITSELF.  FOR I ASSUME THAT NO ONE WOULD ARGUE THAT THE POWER
AT STAKE HERE IS NECESSARY TO THAT END. 

MOREOVER, IF I FELT THAT I HAD THE POWER TO REWEIGH THE "COMPETING"
VALUES INVOLVED, I WOULD HAVE NO DIFFICULTY REACHING THE CONCLUSION
THAT THE LOSS INFLICTED UPON OUR FREE WAY OF LIFE BY INVASION OF FIRST
AMENDMENT FREEDOMS BROUGHT ABOUT BY THE POWERS CONFERRED UPON THE
WISCONSIN INTEGRATED BAR FAR OUTWEIGHS ANY STATE INTEREST SERVED BY THE
EXERCISE OF THOSE POWERS BY THAT ASSOCIATION.  AT STAKE HERE IS THE
INTEREST OF THE INDIVIDUAL LAWYERS OF WISCONSIN IN HAVING FULL FREEDOM
TO THINK THEIR OWN THOUGHTS, SPEAK THEIR OWN MINDS, SUPPORT THEIR OWN
CAUSES AND WHOLEHEARTEDLY FIGHT WHATEVER THEY ARE AGAINST, AS WELL AS
THE INTEREST OF THE PEOPLE OF WISCONSIN AND, TO A LESSER EXTENT, THE
PEOPLE OF THE ENTIRE COUNTRY IN MAINTAINING THE POLITICAL INDEPENDENCE
OF WISCONSIN LAWYERS.  (FN13)  HOW IS IT POSSIBLE THAT SUCH FORMIDABLE
INTERESTS SO VITAL TO OUR FREE WAY OF LIFE CAN BE SAID TO BE OUTWEIGHED
BY ANY INTEREST - MUCH LESS THE WHOLLY IMAGINARY INTEREST URGED HERE BY
THE STATE WHICH WOULD HAVE US BELIEVE THAT IT WILL NEVER KNOW WHAT ITS
LAWYERS THINK ABOUT CERTAIN POLITICAL QUESTIONS IF IT CANNOT COMPEL
THEM TO PAY THEIR MONEY TO SUPPORT VIEWS THEY ABHOR?  CERTAINLY, I FEEL
ENTIRELY CONFIDENT IN SAYING THAT THE FRAMERS OF THE FIRST AMENDMENT
WOULD NEVER HAVE STRUCK THE BALANCE AGAINST FREEDOM ON THE BASIS OF
SUCH A DEMONSTRABLY SPECIOUS EXPEDIENCY. 

IN SAYING ALL THIS, I DO NOT MEAN TO SUGGEST THAT THE WISCONSIN STATE
BAR DOES NOT PROVIDE MANY USEFUL AND ENTIRELY LAWFUL SERVICES.  QUITE
THE CONTRARY, THE RECORD INDICATES THAT THIS INTEGRATED BAR
ASSOCIATION, LIKE OTHER BAR ASSOCIATIONS BOTH INTEGRATED AND VOLUNTARY,
DOES PROVIDE SUCH SERVICES.  BUT I THINK IT CLEAR THAT THESE ASPECTS OF
THE WISCONSIN STATE BAR ARE QUITE BESIDE THE POINT SO FAR AS THIS CASE
IS CONCERNED.  FOR A STATE CAN CERTAINLY INSURE THAT THE MEMBERS OF ITS
BAR WILL PROVIDE ANY USEFUL AND PROPER SERVICES IT DESIRES WITHOUT
CREATING AN ASSOCIATION WITH POWER TO COMPEL MEMBERS OF THE BAR TO PAY
MONEY TO SUPPORT VIEWS TO WHICH THEY ARE OPPOSED OR TO FIGHT VIEWS THEY
FAVOR.  THUS, THE POWER OF A BAR ASSOCIATION TO ADVOCATE LEGISLATION AT
THE EXPENSE OF THOSE WHO OPPOSE SUCH LEGISLATION IS WHOLLY SEPARABLE
FROM ANY LEGITIMATE FUNCTION OF AN INVOLUNTARY BAR ASSOCIATION AND,
THEREFORE, EVEN FOR THOSE WHO SUBSCRIBE TO THE BALANCING TEST, THERE IS
NOTHING TO BALANCE AGAINST THIS INVASION OF CONSTITUTIONALLY PROTECTED
RIGHTS. 

THE SECOND GROUND UPON WHICH THE APPELLEE WOULD HAVE US DISTINGUISH
COMPELLED SUPPORT OF HATED VIEWS AS PRACTICED BY AN INTEGRATED BAR FROM
COMPELLED SUPPORT OF SUCH VIEWS AS PRACTICED BY THE UNIONS INVOLVED IN
THE STREET CASE IS THAT LAWYERS ARE SOMEHOW DIFFERENT FROM OTHER
PEOPLE.  THIS ARGUMENT, THOUGH PHRASED IN VARIOUS WAYS, AMOUNTS TO
NOTHING MORE THAN THE CONTENTION THAT THE PRACTICE OF LAW IS A HIGH
OFFICE IN OUR SOCIETY WHICH IS CONFERRED BY THE STATE AS A PRIVILEGE
AND THAT THE STATE CAN, IN RETURN FOR THIS PRIVILEGE, IMPOSE
OBLIGATIONS UPON LAWYERS THAT IT COULD NOT IMPOSE UPON THOSE NOT GIVEN
"SO HIGH A PRIVILEGE."  WERE IT NOT FOR THIS COURT'S RECENT DECISION IN
COHEN V. HURLEY, (FN14) I WOULD REGARD THIS CONTENTION AS UTTERLY
FRIVOLOUS.  BUT, IT IS TRUE THAT THE COURT DID HOLD IN THE COHEN CASE
THAT LAWYERS COULD BE TREATED DIFFERENTLY FROM OTHER PEOPLE, AT LEAST
INSOFAR AS A CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION IS
CONCERNED.  AS I POINTED OUT IN MY DISSENTING OPINION IN THAT CASE, IT
IS A SHORT STEP FROM THAT POSITION TO THE POSITION NOW URGED IN THE
CONCURRING OPINION OF MR. JUSTICE WHITTAKER - THAT LAWYERS MUST ALSO
GIVE UP THEIR CONSTITUTIONAL RIGHTS UNDER THE FIRST AMENDMENT IN RETURN
FOR THE "PRIVILEGE" THAT THE STATE HAS CONFERRED UPON THEM.  (FN15) 

I DO NOT BELIEVE THAT THE PRACTICE OF LAW IS A "PRIVILEGE" WHICH
EMPOWERS GOVERNMENT TO DENY LAWYERS THEIR CONSTITUTIONAL RIGHTS.  THE
MERE FACT THAT A LAWYER HAS IMPORTANT RESPONSIBILITIES IN SOCIETY DOES
NOT REQUIRE OR EVEN PERMIT THE STATE TO DEPRIVE HIM OF THOSE
PROTECTIONS OF FREEDOM SET OUT IN THE BILL OF RIGHTS FOR THE PRECISE
PURPOSE OF INSURING THE INDEPENDENCE OF THE INDIVIDUAL AGAINST THE
GOVERNMENT AND THOSE ACTING FOR THE GOVERNMENT.  WHAT I SAID IN THE
COHEN CASE IS, IN MY JUDGMENT, EQUALLY APPLICABLE HERE: 

"  ...  ONE OF THE GREAT PURPOSES UNDERLYING THE GRANT OF THOSE
FREEDOMS WAS TO GIVE INDEPENDENCE TO THOSE WHO MUST DISCHARGE IMPORTANT
PUBLIC RESPONSIBILITIES.  THE LEGAL PROFESSION, WITH RESPONSIBILITIES
AS GREAT AS THOSE PLACED UPON ANY GROUP IN OUR SOCIETY, MUST HAVE THAT
INDEPENDENCE.  IF IT IS DENIED THEM, THEY ARE LIKELY TO BECOME NOTHING
MORE THAN PARROTS OF THE VIEWS OF WHATEVER GROUP WIELDS GOVERNMENTAL
POWER AT THE MOMENT.  WHEREVER THAT HAS HAPPENED IN THE WORLD, THE
LAWYER, AS PROPERLY SO CALLED AND RESPECTED, HAS CEASED TO PERFORM THE
HIGHEST DUTY OF HIS CALLING AND HAS LOST THE AFFECTION AND EVEN THE
RESPECT OF THE PEOPLE."  (FN16) 

AS I SEE IT, THE SINGLE, SHARPLY DEFINED CONSTITUTIONAL ISSUE
PRESENTED IN THIS CASE DOES NOT RAISE A DIFFICULT PROBLEM.  THIS
APPELLANT IS NOT DENYING THE POWER OF THE STATE OF WISCONSIN TO PROVIDE
THAT ITS BAR SHALL ENGAGE IN NON-POLITICAL AND NON-CONTROVERSIAL
ACTIVITIES OR EVEN THE POWER OF THE STATE TO PROVIDE THAT ALL LAWYERS
SHALL PAY A FEE TO SUPPORT SUCH ACTIVITIES.  WHAT HE DOES ARGUE, AND
PROPERLY I THINK, IS THAT THE STATE CANNOT COMPEL HIM TO PAY HIS MONEY
TO FURTHER THE VIEWS OF A MAJORITY OR ANY OTHER CONTROLLING PERCENTAGE
OF THE WISCONSIN STATE BAR WHEN THAT CONTROLLING GROUP IS TRYING TO
PASS LAWS OR ADVANCE POLITICAL CAUSES THAT HE IS AGAINST.  IF THE
"PRIVILEGE" OF BEING A LAWYER RENDERS THAT ARGUMENT UNSOUND, IT IS
CERTAINLY ONE OF THE MORE BURDENSOME PRIVILEGES GOVERNMENT CAN CONFER
UPON ONE OF ITS CITIZENS.  AND LAWYERS MIGHT BE WELL ADVISED TO
RECONSIDER THE WISDOM OF ENCOURAGING THE USE OF A SLOGAN WHICH, THOUGH
HIGH-SOUNDING AND NOBLE IN ITS OUTWARD APPEARANCE, APPARENTLY IMPOSES
HEAVY BURDENS UPON THEIR FIRST AMENDMENT FREEDOMS.    I WOULD REVERSE
THIS CASE AND DIRECT THE SUPREME COURT OF WISCONSIN TO REQUIRE REFUND
OF THE DUES EXACTED UNDER PROTEST FROM THE APPELLANT IN ORDER TO PERMIT
THE WISCONSIN STATE BAR TO ADVOCATE MEASURES HE IS AGAINST AND TO
OPPOSE MEASURES HE FAVORS.  I THINK IT PLAIN THAT LAWYERS HAVE AT LEAST
AS MUCH PROTECTION FROM SUCH COMPULSION UNDER THE CONSTITUTION AS THE
COURT IS HOLDING RAILROAD WORKERS HAVE UNDER THE RAILWAY LABOR ACT. 

FN1  ANTE, P. 740. 

FN2  THE CIRCUIT COURT ALSO FOUND JURISDICTIONAL DIFFICULTIES WITH
APPELLANT'S COMPLAINT BUT IT EXPRESSLY DECLINED TO REST ITS DECISION
UPON THE JURISDICTIONAL DEFECTS ALONE.    FN3  "THIS COURT TAKES
JUDICIAL NOTICE OF THE ACTIVITIES OF THE STATE BAR IN THE LEGISLATIVE
FIELD SINCE ITS CREATION BY THIS COURT IN 1956.  IN EVERY INSTANCE THE
LEGISLATIVE MEASURES ADVOCATED OR OPPOSED HAVE DEALT WITH THE
ADMINISTRATION OF JUSTICE, COURT REFORM, AND LEGAL PRACTICE."  LATHROP
V. DONOHUE, 10 WIS. 2D 230, 239, 102 N.W.2D 404, 409.  THE SCOPE OF
THIS FINDING IS SHOWN BY THE COURT'S FURTHER STATEMENT IN ANSWER TO
APPELLANT'S CONTENTION THAT THE STATE BAR ALSO TOOK POSITIONS ON
STRICTLY SUBSTANTIVE LEGISLATION:  "WE DO NOT DEEM THAT THE STATE BAR
SHOULD BE COMPELLED TO REFRAIN FROM TAKING A STAND ON A MEASURE WHICH
DOES SUBSTANTIALLY DEAL WITH LEGAL PRACTICE AND THE ADMINISTRATION OF
JUSTICE MERELY BECAUSE IT ALSO MAKES SOME CHANGES IN SUBSTANTIVE LAW." 
IBID. 

FN4  THUS, THE WISCONSIN COURT CORRECTLY STATED THE ISSUE IN THIS
CASE:  "THE ONLY CHALLENGED INTERFERENCE WITH HIS LIBERTY IS THE
EXACTION OF ANNUAL DUES TO THE STATE BAR  ...  PART OF WHICH IS USED TO
ADVOCATE CAUSES TO WHICH HE IS OPPOSED."  10 WIS. 2D 230, 242, 102
N.W.2D 404, 411. 

FN5  IBID.  THE WISCONSIN SUPREME COURT AGREED WITH THE CIRCUIT COURT
THAT THERE WERE JURISDICTIONAL DIFFICULTIES WITH THE SUIT AS IT WAS
BROUGHT.  BUT THE SUPREME COURT, LIKE THE CIRCUIT COURT, DID NOT REST
ITS DECISION ON THESE JURISDICTIONAL GROUNDS.  EVEN THOUGH IT AGREED
THAT THE CIRCUIT COURT DID NOT PROPERLY HAVE JURISDICTION, IT EXPRESSLY
AFFIRMED THE JUDGMENT OF THE CIRCUIT COURT WHICH, AS POINTED OUT ABOVE,
DISMISSED THE COMPLAINT WITHOUT LEAVE TO AMEND ON THE GROUND THAT NO
AMENDMENT WOULD CURE THE DEFECTS IN THE MERITS OF APPELLANT'S CASE. 

FN6  SEE, E.G., BROWN V. WESTERN R. OF ALABAMA, 338 U.S. 294,
ESPECIALLY AT 296. 

FN7  THE AUTHORITIES RELIED UPON BY THE PLURALITY OPINION CERTAINLY
DO NOT SUPPORT ITS POSITION.  THE CONCURRING OPINION IN UNITED STATES
V. C.I.O., 335 U.S. 106, 124-129, DOES NOT SUGGEST THAT A LITIGANT WHO
FAILS PROPERLY TO "SHAPE" CONSTITUTIONAL ISSUES SHOULD BE THROWN OUT OF
COURT COMPLETELY FOR HIS FAILURE.  AND THE DECISION OF THE COURT IN
UNITED STATES V. INTERNATIONAL UNION, U.A.W.-C.I.O., 352 U.S. 567,
PLAINLY CANNOT BE TAKEN TO JUSTIFY SUCH A DISPOSITION SINCE THAT CASE
WAS REMANDED FOR FURTHER PROCEEDINGS. 

FN8  AS I HAVE INDICATED IN MY DISSENTING OPINION IN THAT CASE, I
ALSO THINK THE COURT WENT TO EXTRAVAGANT LENGTHS TO AVOID THE
CONSTITUTIONAL ISSUE IN THAT CASE.  ANTE, AT 784-786.  AND I THINK IT
CLEAR THAT THE COURT WOULD HAVE NO CHOICE BUT TO MEET AND DECIDE THE
CONSTITUTIONAL ISSUE IN STREET IF A DECISION ON THAT ISSUE WERE MADE IN
THIS CASE.  SEE ID., AT 785. 

FN9  A COMPLETE STATEMENT OF THE ARGUMENTS UNDERLYING THE "BALANCING
TEST" IS SET OUT IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.
382, IN WHICH THIS COURT HELD THAT THE FREEDOMS OF SPEECH, PRESS,
PETITION AND ASSEMBLY GUARANTEED BY THE FIRST AMENDMENT ARE OUTWEIGHED
BY THE POWER OF CONGRESS TO REGULATE INTERSTATE COMMERCE. 

FN10  SEE, E.G., DENNIS V. UNITED STATES, 341 U.S. 494, 509-511;
BARENBLATT V. UNITED STATES, 360 U.S. 109, 127-128; WILKINSON V. UNITED
STATES, 365 U.S. 399, 411. 

FN11 10 WIS. 2D, AT 242, 102 N.W.2D 404, 411. 

FN12  SEE, E.G., SCALES V. UNITED STATES, ANTE, PP. 203, 259
(DISSENTING OPINION); COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL
BOARD, ANTE, PP. 1, 137 (DISSENTING OPINION); IN RE ANASTAPLO, 366 U.S.
82, 110-112 (DISSENTING OPINION); KONIGSBERG V. STATE BAR OF
CALIFORNIA, 366 U.S. 36, 62-71 (DISSENTING OPINION); BRADEN V. UNITED
STATES, 365 U.S. 431, 441-446 (DISSENTING OPINION); WILKINSON V. UNITED
STATES, 365 U.S. 399, 422-423 (DISSENTING OPINION); UPHAUS V. WYMAN,
364 U.S. 388, 392-393 (DISSENTING OPINION); BARENBLATT V. UNITED
STATES, 360 U.S. 109, 140-144 (DISSENTING OPINION); AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 445-453 (DISSENTING
OPINION). 

FN13  CF. COHEN V. HURLEY, 366 U.S. 117, 138-150 (DISSENTING
OPINION); IN RE ANASTAPLO, 366 U.S. 82, 114-116 (DISSENTING OPINION);
KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36, 73-74, 77-80
(DISSENTING OPINION). 

FN14  366 U.S. 117.  THE DECISION OF THE NEW YORK COURT OF APPEALS IN
THAT CASE WAS EXPRESSLY RESTED IN PART UPON THE NOTION THAT THE
PRACTICE OF LAW IS A "SPECIAL PRIVILEGE."  SEE ID., AT 132-133
(DISSENTING OPINION).  AND I THOUGHT THEN, AS I THINK NOW, THAT THE
DECISION OF THIS COURT UPHOLDING THE JUDGMENT OF THE NEW YORK COURT
PLACED "THE STAMP OF APPROVAL UPON A DOCTRINE THAT, IF PERMITTED TO
GROW, AS DOCTRINES HAVE A HABIT OF DOING, CAN GO FAR TOWARD DESTROYING
THE INDEPENDENCE OF THE LEGAL PROFESSION AND THUS TOWARD RENDERING THAT
PROFESSION LARGELY INCAPABLE OF PERFORMING THE VERY KINDS OF SERVICES
FOR THE PUBLIC THAT MOST JUSTIFY ITS EXISTENCE."  ID., AT 135
(DISSENTING OPINION). 

FN15  ID., AT 142-143 (DISSENTING OPINION). 

FN16  ID., AT 138-139 (DISSENTING OPINION). 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE QUESTION IN THE PRESENT CASE CONCERNS THE POWER OF A STATE TO
COMPEL LAWYERS TO BELONG TO A STATEWIDE BAR ASSOCIATION, THE
ORGANIZATION COMMONLY REFERRED TO IN THIS COUNTRY AS THE "INTEGRATED
BAR."  THERE CAN BE NO DOUBT THAT LAWYERS, LIKE DOCTORS AND DENTISTS,
CAN BE REQUIRED TO PASS EXAMINATIONS THAT TEST THEIR CHARACTER AND
THEIR FITNESS TO PRACTICE THE PROFESSION.  NO QUESTION OF THAT NATURE
IS PRESENTED.  THERE IS ALSO NO DOUBT THAT A STATE FOR CAUSE SHOWN CAN
DEPRIVE A LAWYER OF HIS LICENSE.  NO QUESTION OF THAT KIND IS INVOLVED
IN THE PRESENT CASE.  (FN1)  THE SOLE QUESTION IS THE EXTENT OF THE
POWER OF A STATE OVER A LAWYER WHO REBELS AT BECOMING A MEMBER OF THE
INTEGRATED BAR AND PAYING DUES TO SUPPORT ACTIVITIES THAT ARE OFFENSIVE
TO HIM.  THUS THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH, IS BROUGHT INTO PLAY.  AND FOR THE REASONS STATED BY MR.
JUSTICE BLACK, I THINK ALL ISSUES IN THE CASE ARE RIPE FOR DECISION. 

IF THE STATE CAN COMPEL ALL LAWYERS TO JOIN A GUILD, I SEE NO REASON
WHY IT CANNOT MAKE THE SAME REQUIREMENT OF DOCTORS, DENTISTS, AND
NURSES.  THEY TOO HAVE RESPONSIBILITIES TO THE PUBLIC; AND THEY ALSO
HAVE INTERESTS BEYOND MAKING A LIVING.  THE GROUPS WHOLE ACTIVITIES ARE
OR MAY BE DEEMED AFFECTED WITH A PUBLIC INTEREST ARE INDEED NUMEROUS. 
TEACHERS ARE AN OBVIOUS EXAMPLE.  INSURANCE AGENTS, BROKERS, AND
PHARMACISTS HAVE LONG BEEN UNDER LICENSING REQUIREMENTS OR SUPERVISORY
REGIMES.   AS THE INTERDEPENDENCY OF EACH PERSON ON THE OTHER INCREASES
WITH THE COMPLEXITIES OF MODERN SOCIETY, THE CIRCLE OF PEOPLE
PERFORMING VITAL SERVICES INCREASES.  PRECEDENTS ONCE ESTABLISHED OFTEN
GAIN MOMENTUM BY THE FORCE OF THEIR EXISTENCE.  DOCTRINE HAS A HABIT OF
FOLLOWING THE PATH OF INEXORABLE LOGIC. 

WE ESTABLISHED NO SUCH PRECEDENT IN RAILWAY EMPLOYES' DEPT. V.
HANSON, 351 U.S. 225.  WE DEALT THERE ONLY WITH A PROBLEM IN COLLECTIVE
BARGAINING, VIZ., IS IT BEYOND LEGISLATIVE COMPETENCE TO REQUIRE ALL
WHO BENEFIT FROM THE PROCESS OF COLLECTIVE BARGAINING AND ENJOY ITS
FRUITS TO CONTRIBUTE TO ITS COSTS?  WE HELD THAT THE EVIL OF THOSE WHO
ARE "FREE RIDERS" MAY BE SO DISRUPTIVE OF LABOR RELATIONS AND THEREFORE
SO FRAUGHT WITH DANGER TO THE MOVEMENT OF COMMERCE THAT CONGRESS HAS
THE POWER TO PERMIT A UNION-SHOP AGREEMENT THAT EXACTS FROM EACH
BENEFICIARY HIS SHARE OF THE COST OF GETTING INCREASED WAGES AND
IMPROVED WORKING CONDITIONS.  THE POWER OF A STATE TO MANAGE ITS
INTERNAL AFFAIRS BY REQUIRING A UNION-SHOP AGREEMENT WOULD SEEM TO BE
AS GREAT. 

IN THE HANSON CASE WE SAID, TO BE SURE, THAT IF A LAWYER COULD BE
REQUIRED TO JOIN AN INTEGRATED BAR, AN EMPLOYEE COULD BE COMPELLED TO
JOIN A UNION SHOP.  BUT ON REFLECTION THE ANALOGY FAILS. 

OF COURSE ANY GROUP PURPORTS TO SERVE A GROUP CAUSE.  A MEDICAL
ASSOCIATION THAT FIGHTS SOCIALIZED MEDICINE PROTECTS THE FEES OF THE
PROFESSION.  YET NOT EVEN AN IMMEDIATE CAUSE OF THAT CHARACTER IS
SERVED BY THE INTEGRATED BAR.  ITS CONTRIBUTION IS IN POLICING THE
MEMBERS OF THE LEGAL PROFESSION AND IN PROMOTING WHAT THE MAJORITY OF
THE BAR THINKS IS DESIRABLE LEGISLATION. 

THE SUPREME COURT OF WISCONSIN SAID THAT THE INTEGRATED BAR, UNLIKE A
VOLUNTARY BAR ASSOCIATION, WAS CONFINED IN ITS LEGISLATIVE ACTIVITIES. 
THOUGH THE WISCONSIN BAR WAS ACTIVE IN THE LEGISLATIVE FIELD, IT WAS
RESTRICTED TO ADMINISTRATION OF JUSTICE, COURT REFORM, AND LEGAL
PRACTICE.  THE COURT HOWEVER ADDED: 

"THE PLAINTIFF COMPLAINS THAT CERTAIN PROPOSED LEGISLATION, UPON
WHICH THE STATE BAR HAS TAKEN A STAND, EMBODY CHANGES IN SUBSTANTIVE
LAW, AND POINTS TO THE RECENTLY ENACTED FAMILY CODE.  AMONG OTHER
THINGS, SUCH MEASURE MADE MANY CHANGES IN DIVORCE PROCEDURE, AND,
THEREFORE, LEGAL PRACTICE.  WE DO NOT DEEM THAT THE STATE BAR SHOULD BE
COMPELLED TO REFRAIN FROM TAKING A STAND ON A MEASURE WHICH DOES
SUBSTANTIALLY DEAL WITH LEGAL PRACTICE AND THE ADMINISTRATION OF
JUSTICE MERELY BECAUSE IT ALSO MAKES SOME CHANGES IN SUBSTANTIVE LAW." 
10 WIS. 2D 230, 239, 102 N.W.2D 404, 409. 

IT IS DIFFICULT FOR ME TO SEE HOW THE STATE CAN COMPEL EVEN THAT
DEGREE OF SUBSERVIENCE OF THE INDIVIDUAL TO THE GROUP. 

IT IS TRUE THAT ONE OF THE PURPOSES OF THE STATE BAR ASSOCIATION IS
"TO SAFEGUARD THE PROPER PROFESSIONAL INTERESTS OF THE MEMBERS OF THE
BAR."  STATE BAR OF WISCONSIN, RULE 1, SEC. 2.  IN THIS CONNECTION, THE
ASSOCIATION HAS BEEN ACTIVE IN EXPLOITING THE MONOPOLY POSITION GIVEN
BY THE LICENSED CHARACTER OF THE PROFESSION.  THUS, THE BAR HAS
COMPILED AND PUBLISHED A SCHEDULE OF RECOMMENDED MINIMUM FEES.  SEE
WIS. BAR BULL., AUG. 1960, P. 40.  ALONG THE SAME LINE, THE COMMITTEE
ON UNAUTHORIZED PRACTICE OF THE LAW, ALONG WITH A COMMITTEE ON INTER
PROFESSIONAL AND BUSINESS RELATIONS, HAS BEEN SET UP TO POLICE
ACTIVITIES BY NONPROFESSIONALS WITHIN "THE PROPER SCOPE OF THE PRACTICE
OF LAW."  STATE BAR OF WISCONSIN, BY-LAWS, ART. IV, SECS. 8, 11. 

YET THIS IS A FAR CRY FROM THE HISTORY WHICH STOOD BEHIND THE
DECISION OF CONGRESS TO FOSTER THE WELL-ESTABLISHED INSTITUTION OF
COLLECTIVE BARGAINING AS ONE OF THE MEANS OF PRESERVING INDUSTRIAL
PEACE.  THAT HISTORY IS PARTIALLY CRYSTALLIZED IN THE LANGUAGE OF THE
WAGNER AND TAFT-HARTLEY ACTS: "EXPERIENCE HAS PROVED THAT PROTECTION BY
LAW OF THE RIGHT OF EMPLOYEES TO ORGANIZE AND BARGAIN COLLECTIVELY
SAFEGUARDS COMMERCE  ...  BY ENCOURAGING PRACTICES FUNDAMENTAL TO THE
FRIENDLY ADJUSTMENT OF INDUSTRIAL DISPUTES ARISING OUT OF DIFFERENCES
AS TO WAGES, HOURS, OR OTHER WORKING CONDITIONS, AND BY RESTORING
EQUALITY OF BARGAINING POWER BETWEEN EMPLOYERS AND EMPLOYEES." 
NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE TAFT-HARTLEY ACT, 61
STAT. 136, 137, 29 U.S.C. SEC. 151.  IT WAS WITH THIS HISTORY IN MIND
THAT WE SPOKE WHEN WE SAID THAT "ONE WOULD HAVE TO BE BLIND TO HISTORY
TO ASSERT THAT TRADE UNIONISM DID NOT ENHANCE AND STRENGTHEN THE RIGHT
TO WORK."  RAILWAY EMPLOYES' DEPT. V. HANSON, SUPRA, 235. 

NOR CAN THE PRESENT ASSOCIATION BE DEFENDED ON GROUNDS THAT IT
RENDERS ONLY PUBLIC SERVICES. 

IF WE HAD HERE A LAW WHICH REQUIRED LAWYERS TO CONTRIBUTE TO A FUND
OUT OF WHICH CLIENTS WOULD BE PAID IN CASE ATTORNEYS TURNED OUT TO BE
EMBEZZLERS, (FN2) THE PRESENT OBJECTION MIGHT NOT BE RELEVANT.  IN THAT
CASE, ONE RISK OF THE PROFESSION WOULD BE DISTRIBUTED AMONG ALL MEMBERS
OF THE GROUP.  THE FACT THAT A DISSIDENT MEMBER DID NOT FEEL HE HAD
WITHIN HIM THE SEEDS OF AN EMBEZZLER MIGHT NOT BAR A LEVY ON THE WHOLE
PROFESSION FOR ONE SAD BUT NOTORIOUS RISK OF THE PROFESSION.  WE WOULD
ALSO HAVE A DIFFERENT CASE IF LAWYERS WERE ASSESSED TO RAISE MONEY TO
FINANCE THE DEFENSE OF INDIGENTS.  CF. IN RE FLORIDA BAR, 62 SO. 2D 20,
24.  THAT WOULD BE AN IMPOSITION OF A DUTY ON THE CALLING WHICH PARTOOK
OF SERVICE TO THE PUBLIC.  HERE THE OBJECTION STRIKES DEEPER.  AN
ATTORNEY OBJECTS TO A FORCED ASSOCIATION WITH A GROUP THAT DEMANDS HIS
MONEY FOR THE PROMOTION OF CAUSES WITH WHICH HE DISAGREES, FROM WHICH
HE OBTAINS NO GAIN, AND WHICH IS NOT PART AND PARCEL OF SERVICE OWING
LITIGANTS OR COURTS. 

THE RIGHT OF ASSOCIATION IS AN IMPORTANT INCIDENT OF FIRST AMENDMENT
RIGHTS.  THE RIGHT TO BELONG - OR NOT TO BELONG - IS DEEP IN THE
AMERICAN TRADITION.  JOINING IS ONE METHOD OF EXPRESSION.  THIS FREEDOM
OF ASSOCIATION IS NOT AN ABSOLUTE.  FOR AS I HAVE NOTED IN MY OPINION
IN INTERNATIONAL ASSN. OF MACHINISTS V. STREET, ANTE, P. 775, DECIDED
THIS DAY, THE NECESSITIES OF LIFE PUT US INTO RELATIONS WITH OTHERS
THAT MAY BE UNDESIRABLE OR EVEN ABHORRENT, IF INDIVIDUAL STANDARDS WERE
TO OBTAIN.  YET IF THIS RIGHT IS TO BE CURTAILED BY LAW, IF THE
INDIVIDUAL IS TO BE COMPELLED TO ASSOCIATE WITH OTHERS IN A COMMON
CAUSE, THEN I THINK EXCEPTIONAL CIRCUMSTANCES SHOULD BE SHOWN.  I WOULD
TREAT LAWS OF THIS CHARACTER LIKE ANY THAT TOUCH ON FIRST AMENDMENT
RIGHTS.  CONGESTION OF TRAFFIC, STREET FIGHTS, RIOTS AND SUCH MAY
JUSTIFY CURTAILMENT OF OPPORTUNITIES OR OCCASIONS TO SPEAK FREELY.  CF.
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568.  BUT WHEN THOSE LAWS ARE
SUSTAINED, WE REQUIRE THEM TO BE "NARROWLY DRAWN" (CANTWELL V.
CONNECTICUT, 310 U.S. 296, 311) SO AS TO BE CONFINED TO THE PRECISE
EVIL WITHIN THE COMPETENCE OF THE LEGISLATURE.  SEE SHELTON V. TUCKER,
364 U.S. 479; LOUISIANA V. N.A.A.C.P., 366 U.S. 293.  THERE IS HERE NO
EVIL SHOWN.  IT HAS THE MARK OF "A LAWYER CLASS OR CASTE" - THE SYSTEM
OF "A SELF-GOVERNING AND SELF-DISCIPLINING BAR" SUCH AS ENGLAND HAS. 
(FN3)  THE PATTERN OF THIS LEGISLATION IS REGIMENTATION.  THE INROADS
OF AN INTEGRATED BAR ON THE LIBERTY AND FREEDOM OF LAWYERS TO ESPOUSE
SUCH CAUSES AS THEY CHOOSE WAS EMPHASIZED BY WILLIAM D. GUTHRIE (FN4)
OF THE NEW YORK BAR:  (FN5)    "THE IDEA SEEMS TO BE, CONTRARY TO ALL
HUMAN EXPERIENCE, THAT IF POWER BE VESTED IN THIS AT PRESENT UNKNOWN
AND UNTRIED AS WELL AS INDIFFERENT OUTSIDE BODY, HOLDING THEMSELVES
ALOOF FROM THEIR PROFESSION, THEY WILL SOMEHOW BECOME INSPIRED WITH A
HIGH PROFESSIONAL SENTIMENT OR SENSE OF DUTY AND COOPERATION AND WILL
UNSELFISHLY EXERCISE THEIR MAJORITY POWER FOR THE GOOD OF THEIR
PROFESSION AND THE PUBLIC, THAT THEY CAN BE TRUSTED TO CHOOSE AS THEIR
OFFICERS AND LEADERS LAWYERS OF THE TYPE WHO ARE NOW LEADERS, THAT THE
RESPONSIBILITY OF POWER WILL NECESSARILY SOBER AND ELEVATE THEIR MINDS,
AND FINALLY THAT DEMOCRACY CALLS FOR THE RULE OF THE MAJORITY. 

"THUS, THE TRADITIONS AND ETHICS OF OUR GREAT PROFESSION WOULD BE
LEFT TO THE MERCY OF MERE NUMBERS OFFICIALLY AUTHORIZED TO SPEAK FOR
US.  THIS WOULD BE ADOPTING ALL THE VICES OF DEMOCRACY WITHOUT THE
REASONABLE HOPE IN COMMON SENSE OF SECURING ANY OF ITS VIRTUES.  IT
WOULD BE FORCING THE DEMOCRATIC DOGMA OF MASS OR MAJORITY RULE TO A
DANGEROUS AND PERNICIOUS EXTREME. 

"ALTHOUGH IN POLITICAL DEMOCRACY THE RULE OF THE MAJORITY IS
NECESSARY, THE AMERICAN SYSTEM OF DEMOCRACY IS BASED UPON THE
RECOGNITION OF THE IMPERATIVE NECESSITY OF LIMITATIONS UPON THE WILL OF
THE MAJORITY.  IN THE PROPOSED COMPULSORY OR INVOLUNTARY INCORPORATION
OF THE BAR, THERE WOULD BE NO LIMITATION WHATEVER, AND THE BEST
SENTIMENTS AND TRADITIONS OF THE PROFESSION, OF THE PUBLIC-SPIRITED AND
HIGH-MINDED LAWYERS WHO ARE NOW ACTIVE IN THE VOLUNTARY BAR
ASSOCIATIONS OF THE STATE, COULD BE WHOLLY AND WANTONLY DISREGARDED AND
OVERRULED."  (FN6) 

THIS REGIMENTATION APPEARS IN HUMBLE FORM TODAY.  YET WE KNOW THAT
THE BAR AND BENCH DO NOT MOVE TO A SINGLE "NONPARTISAN" OBJECTIVE.  THE
OBVIOUS FACT THAT THEY ARE NOT SO MOTIVATED IS PLAIN FROM COHEN V.
HURLEY, 366 U.S. 117, WHICH WE DECIDED ONLY THE OTHER DAY.  ONCE WE
APPROVE THIS MEASURE, WE SANCTION A DEVICE WHERE MEN AND WOMEN IN
ALMOST ANY PROFESSION OR CALLING CAN BE AT LEAST PARTIALLY REGIMENTED
BEHIND CAUSES WHICH THEY OPPOSE.  I LOOK ON THE HANSON CASE AS A NARROW
EXCEPTION TO BE CLOSELY CONFINED.  UNLESS WE SO TREAT IT, WE
PRACTICALLY GIVE CARTE BLANCHE TO ANY LEGISLATURE TO PUT AT LEAST
PROFESSIONAL PEOPLE INTO GOOSE-STEPPING BRIGADES.  (FN7)  THOSE
BRIGADES ARE NOT COMPATIBLE WITH THE FIRST AMENDMENT.  WHILE THE
LEGISLATURE HAS FEW LIMITS WHERE STRICTLY SOCIAL LEGISLATION IS
CONCERNED (GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490; TOT V. UNITED
STATES, 319 U.S. 463), THE FIRST AMENDMENT APPLIES STRICTURES DESIGNED
TO KEEP OUR SOCIETY FROM BECOMING MOULDED INTO PATTERNS OF CONFORMITY
WHICH SATISFY THE MAJORITY. 

FN1 A SELF-POLICING PROVISION WHEREBY LAWYERS WERE GIVEN THE POWER TO
INVESTIGATE AND DISBAR THEIR ASSOCIATES WOULD RAISE UNDER MOST, IF NOT
ALL, STATE CONSTITUTIONS THE TYPE OF PROBLEM PRESENTED IN SCHECHTER
CORP. V. UNITED STATES, 295 U.S. 495.  SEE 1 DAVIS, ADMINISTRATIVE LAW
TREATISE, SEC. 2.14. 

FN2  SEE 84 REP. AM. BAR ASSN., PP. 365-367, 513-515, 604-606 (1959);
VOORHEES, A PROGRESS REPORT:  THE CLIENTS' SECURITY FUND PROGRAM, 46
AM. BAR ASSN. JOUR., 496 (1960); VOORHEES, SHOULD THE BAR ADOPT CLIENT
SECURITY FUNDS?, 28 JOUR.  BAR ASSN. KAN. 5 (1959).  AS OF MAY 1961,
ARIZONA, COLORADO, CONNECTICUT, NEW HAMPSHIRE, NEW MEXICO, OHIO,
PENNSYLVANIA, AND WASHINGTON HAVE SUCH FUNDS. 

FN3  GUTHRIE, THE PROPOSED COMPULSORY INCORPORATION OF THE BAR, 4
N.Y.L. REV. 223, 231 (1926). 

FN4  SEE SWAINE, THE CRAVATH FIRM (1946), VOL. I, PP. 359, 518. 

FN5  GUTHRIE, SUPRA, NOTE 3, 234-235. 

FN6  COMPARE WITH THIS THE LANGUAGE OF THE COURT BELOW IN THIS CASE:
"IT PROMOTES THE PUBLIC INTEREST TO HAVE PUBLIC EXPRESSION OF THE VIEWS
OF A MAJORITY OF THE LAWYERS OF THE STATE, WITH RESPECT TO LEGISLATION
AFFECTING THE ADMINISTRATION OF JUSTICE AND THE PRACTICE OF LAW, THE
SAME TO BE VOICED THROUGH THEIR OWN DEMOCRATICALLY CHOSEN
REPRESENTATIVES COMPRISING THE BOARD OF GOVERNORS OF THE INTEGRATED
STATE BAR."  10 WIS. 2D 230, 242, 102 N.W.2D 404. 

FN7  A CURRENT OBSERVER HAS COMMENTED ON THE RESULTS OF THE
REGIMENTED BAR IN ENGLAND: 

"BRITAIN IS MOVING TOWARDS A DANGEROUS DICTATORSHIP NOT ONLY IN
JOURNALISM, WIRELESS, AND TELEVISION, BUT IN FINANCE AND LAW.  THE
IMMENSE GROUPS CONTROLLING FINANCIAL OPERATIONS ARE BECOMING MORE AND
MORE INTERLOCKED AND HAVE AN INCREASING TENDENCY TO COVER UP EACH
OTHER'S ERRORS. 

"THE GREAT FIRMS OF SOLICITORS ARE LESS AND LESS INCLINED TO OFFEND
THE POWERFUL FINANCIAL HOUSES WHICH PLACE THE BIGGEST BUSINESS; AND IF
DISHONESTY IS ALLEGED THEY ALL TOO OFTEN REFUSE 'TO ACT' IF THIS SHOULD
INVOLVE ONE OF THE GREAT INTERESTS UPON WHICH THE BIG AND PROFITABLE
BUSINESS OF OUR TIMES DEPENDS. 

"SLOWLY, DANGEROUSLY, AND WITHOUT THE PUBLIC FULLY REALISING WHAT IS
HAPPENING, A NATION OF GREAT POWER BOTTLED UP IN A TINY GEOGRAPHICAL
AREA IS BEING BROUGHT WITHIN THE GRIP OF A MINORITY OF EXTREMELY
POWERFUL MEN WHOSE GENIUS IS TO DENY THE SMALLEST PRETENSION TO POWER,
BUT WHO, IN FACT, ARE WHOLLY RUTHLESS IN A PERSISTENT SEARCH FOR
POWER. 

"IN THIS SEARCH, ALTHOUGH MONEY IS VITAL, THEY ARE READY TO BE
RADICAL IN MANY WAYS - PARTICULARLY IN THE DESTRUCTION OF ALL RIVALRY
FOR INFLUENCE WHICH MIGHT SPRING FROM A WIDESPREAD CONTINUITY OF WEALTH
IN THE HANDS OF PROPRIETORS OF FAMILY BUSINESSES OR LAND. 

     *         *         *     *         * 

"TO DESTROY THIS MOVEMENT TOWARDS PRESS MONOPOLY AND FINANCIAL 'COVER
UP,' IT WILL BE NECESSARY FOR INDIVIDUALS STILL PRESERVED FROM 'TAKE
OVER' TO SUPPORT EVERY FORM OF INDEPENDENT JOURNALISM AND FINANCE. 
UNHAPPILY, IN THE FIELD OF JOURNALISM THE SMALLER GROUPS ARE SO AFRAID
OF WORSE THAN ALREADY THREATENS, THAT THE TENDENCY IS TOWARDS
SURRENDER.  THIS MUST BE STOPPED."  THE WEEKLY REVIEW, FEB. 3, 1961,
PP. 1, 2. 
..END :








CAFETERIA & RESTAURANT WORKERS UNION, LOCAL 473, AFL-CIO V. MCELROY 367
U.S. 886 


NO. 97.  ARGUED JANUARY 12, 1961 - DECIDED JUNE 19, 1961 - 109 U.S. APP.
D.C. 39, 284 F.2D 173, AFFIRMED. 


THE INDIVIDUAL PETITIONER WAS A COOK AT A CAFETERIA OPERATED BY A
PRIVATE CONCESSIONAIRE ON THE PREMISES OF THE NAVAL GUN FACTORY IN
WASHINGTON, D.C., WHICH WAS ENGAGED IN THE DEVELOPMENT OF SECRET
WEAPONS AND ACCESS TO WHICH WAS LIMITED TO PERSONS HAVING BADGES ISSUED
BY THE FACTORY'S SECURITY OFFICER.  THE CONTRACT BETWEEN THE GUN
FACTORY AND THE CONCESSIONAIRE FORBADE THE EMPLOYMENT ON THE PREMISES
OF ANY PERSON WHO FAILED TO MEET THE SECURITY REQUIREMENTS OF THE GUN
FACTORY, AS DETERMINED BY THE SECURITY OFFICER.  ON THE GROUND THAT THE
COOK HAD FAILED TO MEET THE SECURITY REQUIREMENTS OF THE GUN FACTORY,
THE SECURITY OFFICER REQUIRED HER TO TURN IN HER BADGE AND THEREAFTER
SHE WAS UNABLE TO WORK AT THE GUN FACTORY.  AFTER A REQUEST FOR A
HEARING BEFORE OFFICIALS OF THE GUN FACTORY HAD BEEN DENIED, THE COOK
SUED IN A FEDERAL DISTRICT COURT FOR RESTORATION OF HER BADGE, SO THAT
SHE MIGHT BE PERMITTED TO ENTER THE GUN FACTORY AND RESUME HER FORMER
EMPLOYMENT.  HELD:  THE DISTRICT COURT PROPERLY DENIED RELIEF.  PP. 887
899. 

(A)  UNDER THE EXPLICIT AUTHORITY OF ARTICLE 0734 OF THE NAVY
REGULATIONS, AND IN THE LIGHT OF THE HISTORICALLY UNQUESTIONED POWER OF
A COMMANDING OFFICER SUMMARILY TO EXCLUDE CIVILIANS FROM THE AREA OF
HIS COMMAND, THERE CAN BE NO DOUBT THAT THE SUPERINTENDENT OF THE GUN
FACTORY HAD AUTHORITY TO EXCLUDE THE COOK FROM THE GUN FACTORY UPON THE
SECURITY OFFICER'S DETERMINATION THAT SHE FAILED TO MEET THE SECURITY
REQUIREMENTS.  PP. 889-894. 

(B)  THE SUMMARY EXCLUSION OF THE COOK FROM THE PREMISES OF THE GUN
FACTORY, WITHOUT A HEARING AND WITHOUT ADVICE AS TO THE SPECIFIC
GROUNDS FOR HER EXCLUSION, DID NOT VIOLATE THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT.  PP. 894-899. 

CAFETERIA & RESTAURANT WORKERS UNION, LOCAL 473, AFL-CIO, ET AL. V.
MCELROY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1956 THE PETITIONER RACHEL BRAWNER WAS A SHORT-ORDER COOK AT A
CAFETERIA OPERATED BY HER EMPLOYER, M&M RESTAURANTS, INC., ON THE
PREMISES OF THE NAVAL GUN FACTORY (FN1) IN THE CITY OF WASHINGTON.  SHE
HAD WORKED THERE FOR MORE THAN SIX YEARS, AND FROM HER EMPLOYER'S POINT
OF VIEW HER RECORD WAS ENTIRELY SATISFACTORY. 

THE GUN FACTORY WAS ENGAGED IN DESIGNING, PRODUCING, AND INSPECTING
NAVAL ORDNANCE, INCLUDING THE DEVELOPMENT OF WEAPONS SYSTEMS OF A
HIGHLY CLASSIFIED NATURE.  LOCATED ON PROPERTY OWNED BY THE UNITED
STATES, THE INSTALLATION WAS UNDER THE COMMAND OF REAR ADMIRAL D.M.
TYREE, SUPERINTENDENT.  ACCESS TO IT WAS RESTRICTED, AND GUARDS WERE
POSTED AT ALL POINTS OF ENTRY.  IDENTIFICATION BADGES WERE ISSUED TO
PERSONS AUTHORIZED TO ENTER THE PREMISES BY THE SECURITY OFFICER, A
NAVAL OFFICER SUBORDINATE TO THE SUPERINTENDENT.  IN 1956 THE SECURITY
OFFICER WAS LIEUTENANT COMMANDER H.C. WILLIAMS.  RACHEL BRAWNER HAD
BEEN ISSUED SUCH A BADGE. 

THE CAFETERIA WHERE SHE WORKED WAS OPERATED BY M&M UNDER A CONTRACT
WITH THE BOARD OF GOVERNORS OF THE GUN FACTORY.  SECTION 5(B) OF THE
CONTRACT PROVIDED: 

"  ...  IN NO EVENT SHALL THE CONCESSIONAIRE ENGAGE, OR CONTINUE TO
ENGAGE, FOR OPERATIONS UNDER THIS AGREEMENT, PERSONNEL WHO: 

     *      *         *         *         * 

"(III)  FAIL TO MEET THE SECURITY REQUIREMENTS OR OTHER REQUIREMENTS
UNDER APPLICABLE REGULATIONS OF THE ACTIVITY, AS DETERMINED BY THE
SECURITY OFFICER OF THE ACTIVITY." 

ON NOVEMBER 15, 1956, MRS. BRAWNER WAS REQUIRED TO TURN IN HER
IDENTIFICATION BADGE BECAUSE OF LIEUTENANT COMMANDER WILLIAMS'
DETERMINATION THAT SHE HAD FAILED TO MEET THE SECURITY REQUIREMENTS OF
THE INSTALLATION.  THE SECURITY OFFICER'S DETERMINATION WAS
SUBSEQUENTLY APPROVED BY ADMIRAL TYREE, WHO CITED SEC. 5(B)(III) OF THE
CONTRACT AS THE BASIS FOR HIS ACTION.  AT THE REQUEST OF THE PETITIONER
UNION, WHICH REPRESENTED THE EMPLOYEES AT THE CAFETERIA, M&M SOUGHT TO
ARRANGE A MEETING WITH OFFICIALS OF THE GUN FACTORY "FOR THE PURPOSE OF
A HEARING REGARDING THE DENIAL OF ADMITTANCE TO THE NAVAL GUN FACTORY
OF RACHEL BRAWNER."  THIS REQUEST WAS DENIED BY ADMIRAL TYREE ON THE
GROUND THAT SUCH A MEETING WOULD "SERVE NO USEFUL PURPOSE." 

SINCE THE DAY HER IDENTIFICATION BADGE WAS WITHDRAWN MRS. BRAWNER HAS
NOT BEEN PERMITTED TO ENTER THE GUN FACTORY.  M&M OFFERED TO EMPLOY
HERE IN ANOTHER RESTAURANT WHICH THE COMPANY OPERATED IN THE SUBURBAN
WASHINGTON AREA, BUT SHE REFUSED ON THE GROUND THAT THE LOCATION WAS
INCONVENIENT. 

THE PETITIONERS BROUGHT THIS ACTION IN THE DISTRICT COURT AGAINST THE
SECRETARY OF DEFENSE, ADMIRAL TYREE, AND LIEUTENANT COMMANDER WILLIAMS,
IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, SEEKING, AMONG OTHER
THINGS, TO COMPEL THE RETURN TO MRS. BRAWNER OF HER IDENTIFICATION
BADGE, SO THAT SHE MIGHT BE PERMITTED TO ENTER THE GUN FACTORY AND
RESUME HER FORMER EMPLOYMENT.  THE DEFENDANTS FILED A MOTION FOR
SUMMARY JUDGMENT, SUPPORTED BY VARIOUS AFFIDAVITS AND EXHIBITS.  THE
MOTION WAS GRANTED AND THE COMPLAINT DISMISSED BY THE DISTRICT COURT. 
THIS JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA, SITTING EN BANC.  FOUR JUDGES DISSENTED.  (FN2) WE GRANTED
CERTIORARI BECAUSE OF AN ALLEGED CONFLICT BETWEEN THE COURT OF APPEALS'
DECISION AND GREENE V. MCELROY, 360 U.S. 474.  364 U.S. 813. 

AS THE CASE COMES HERE, TWO BASIC QUESTIONS ARE PRESENTED.  WAS THE
COMMANDING OFFICER OF THE GUN FACTORY AUTHORIZED TO DENY RACHEL BRAWNER
ACCESS TO THE INSTALLATION IN THE WAY HE DID?  IF HE WAS SO AUTHORIZED,
DID HIS ACTION IN EXCLUDING HER OPERATE TO DEPRIVE HER OF ANY RIGHT
SECURED TO HER BY THE CONSTITUTION? 

                                              I. 

IN GREENE V. MCELROY, SUPRA, THE COURT WAS UNWILLING TO FIND, IN THE
ABSENCE OF EXPLICIT AUTHORIZATION, THAT AN AERONAUTICAL ENGINEER,
EMPLOYED BY A PRIVATE CONTRACTOR ON PRIVATE PROPERTY, COULD BE BARRED
FROM FOLLOWING HIS PROFESSION BY GOVERNMENTAL REVOCATION OF HIS
SECURITY CLEARANCE WITHOUT ACCORDING HIM THE RIGHT TO CONFRONT AND
CROSS-EXAMINE HOSTILE WITNESSES.  THE COURT IN THAT CASE FOUND THAT
NEITHER THE CONGRESS NOR THE PRESIDENT HAD EXPLICITLY AUTHORIZED THE
PROCEDURE WHICH HAD BEEN FOLLOWED IN DENYING GREENE ACCESS TO
CLASSIFIED INFORMATION.  ACCORDINGLY WE DID NOT REACH THE
CONSTITUTIONAL ISSUES WHICH THAT CASE OTHERWISE WOULD HAVE PRESENTED. 
WE PROCEED ON THE PREMISE THAT THE EXPLICIT AUTHORIZATION FOUND WANTING
IN GREENE MUST BE SHOWN IN THE PRESENT CASE, PUTTING TO ONE SIDE THE
GOVERNMENT'S ARGUMENT THAT THE DIFFERING CIRCUMSTANCES HERE JUSTIFY
LESS RIGOROUS STANDARDS FOR MEASURING DELEGATION OF AUTHORITY. 

IT CANNOT BE DOUBTED THAT BOTH THE LEGISLATIVE AND EXECUTIVE BRANCHES
ARE WHOLLY LEGITIMATE POTENTIAL SOURCES OF SUCH EXPLICIT AUTHORITY. 
THE CONTROL OF ACCESS TO A MILITARY BASE IS CLEARLY WITHIN THE
CONSTITUTIONAL POWERS GRANTED TO BOTH CONGRESS AND THE PRESIDENT. 
ARTICLE I, SEC. 8, OF THE CONSTITUTION GIVES CONGRESS THE POWER TO
"PROVIDE AND MAINTAIN A NAVY;" TO "MAKE RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES;" TO "EXERCISE EXCLUSIVE
LEGISLATION  ... OVER ALL PLACES PURCHASED BY THE CONSENT OF THE
LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION
OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL
BUILDINGS;" AND TO "MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER
FOR CARRYING INTO EXECUTION THE FOREGOING POWERS ...  ."  BROAD POWER
IN THIS SAME AREA IS ALSO VESTED IN THE PRESIDENT BY ARTICLE II, SEC.
2, WHICH MAKES HIM THE COMMANDER IN CHIEF OF THE ARMED FORCES. 

CONGRESS HAS PROVIDED THAT THE SECRETARY OF THE NAVY "SHALL
ADMINISTER THE DEPARTMENT OF THE NAVY" AND SHALL HAVE "CUSTODY AND
CHARGE OF ALL  ...  PROPERTY OF THE DEPARTMENT."  10 U.S.C. SEC.
5031(A) AND (C).  IN ADMINISTERING HIS DEPARTMENT, THE SECRETARY HAS
BEEN GIVEN STATUTORY POWER TO "PRESCRIBE REGULATIONS, NOT INCONSISTENT
WITH LAW, FOR THE GOVERNMENT OF HIS DEPARTMENT,  ...  AND THE CUSTODY,
USE, AND PRESERVATION OF THE  ...  PROPERTY APPERTAINING TO IT."  5
U.S.C. SEC. 22.  THE LAW EXPLICITLY REQUIRES THAT UNITED STATES NAVY
REGULATIONS SHALL BE APPROVED BY THE PRESIDENT, 10 U.S.C. SEC. 6011,
AND THE PERTINENT REGULATIONS IN EFFECT WHEN RACHEL BRAWNER'S
IDENTIFICATION BADGE WAS REVOKED HAD, IN FACT, BEEN EXPRESSLY APPROVED
BY PRESIDENT TRUMAN ON AUGUST 9, 1948. 

THE REQUIREMENT OF PRESIDENTIAL APPROVAL OF NAVY REGULATIONS IS OF
ANCIENT VINTAGE.  (FN3)  THE SIGNIFICANCE OF SUCH PRESIDENTIAL APPROVAL
HAS OFTEN BEEN RECOGNIZED BY THIS COURT.  SMITH V. WHITNEY, 116 U.S.
167, 181; JOHNSON V. SAYRE, 158 U.S. 109, 117; UNITED STATES GRAIN
CORP. V. PHILLIPS, 261 U.S. 106, 109; DENBY V. BERRY, 263 U.S. 29, 37. 
(FN4)  WE MAY TAKE IT AS SETTLED THAT NAVY REGULATIONS APPROVED BY THE
PRESIDENT ARE, IN THE WORDS OF CHIEF JUSTICE MARSHALL, ENDOWED WITH
"THE SANCTION OF THE LAW."  UNITED STATES V. MAURICE, 2 BROCK.  96,
105.  (FN5)  AND WE FIND NO ROOM FOR SUBSTANTIAL DOUBT THAT THE NAVY
REGULATIONS IN EFFECT ON NOVEMBER 15, 1956, EXPLICITLY CONFERRED UPON
ADMIRAL TYREE THE POWER SUMMARILY TO DENY RACHEL BRAWNER ACCESS TO THE
GUN FACTORY. 

ARTICLE 0701 OF THE REGULATIONS DELINEATES THE TRADITIONAL
RESPONSIBILITIES AND DUTIES OF A COMMANDING OFFICER.  IT PROVIDES IN
PART AS FOLLOWS: 

"THE RESPONSIBILITY OF THE COMMANDING OFFICER FOR HIS COMMAND IS
ABSOLUTE, EXCEPT WHEN, AND TO THE EXTENT, RELIEVED THEREFROM BY
COMPETENT AUTHORITY, OR AS PROVIDED OTHERWISE IN THESE REGULATIONS. 
THE AUTHORITY OF THE COMMANDING OFFICER IS COMMENSURATE WITH HIS
RESPONSIBILITY, SUBJECT TO THE LIMITATIONS PRESCRIBED BY LAW AND THESE
REGULATIONS  ...  ." 

ARTICLE 0734 OF THE REGULATIONS PROVIDES: 

"IN GENERAL, DEALERS OR TRADESMEN OR THEIR AGENTS SHALL NOT BE
ADMITTED WITHIN A COMMAND, EXCEPT AS AUTHORIZED BY THE COMMANDING
OFFICER: 

"1.  TO CONDUCT PUBLIC BUSINESS. 

"2.  TO TRANSACT SPECIFIC PRIVATE BUSINESS WITH INDIVIDUALS AT THE
REQUEST OF THE LATTER. 

"3.  TO FURNISH SERVICES AND SUPPLIES WHICH ARE NECESSARY AND ARE NOT
OTHERWISE, OR ARE INSUFFICIENTLY, AVAILABLE TO THE PERSONNEL OF THE
COMMAND." 

IT WOULD BE DIFFICULT TO CONCEIVE OF A MORE SPECIFIC CONFERRAL OF
POWER UPON A COMMANDING OFFICER, IN THE EXERCISE OF HIS TRADITIONAL
COMMAND RESPONSIBILITY, TO EXCLUDE FROM THE AREA OF HIS COMMAND A
PERSON IN RACHEL BRAWNER'S STATUS.  EVEN WITHOUT THE BENEFIT OF THE
ILLUMINATING GLOSS OF HISTORY, IT COULD HARDLY BE DOUBTED THAT THE
PHRASE "TRADESMEN OR THEIR AGENTS" COVERED HER STATUS AS AN EMPLOYEE OF
M&M WITH EXPLICIT PRECISION.  (FN6)  BUT THE MEANING OF THE REGULATION
NEED NOT BE DETERMINED IN VACUO.  IT IS THE VERBALIZATION OF THE
UNQUESTIONED AUTHORITY WHICH COMMANDING OFFICERS OF MILITARY
INSTALLATIONS HAVE EXERCISED THROUGHOUT OUR HISTORY.  (FN7) 

AN OPINION BY ATTORNEY GENERAL BUTLER IN 1837 DISCLOSES THAT THE
POWER OF A MILITARY COMMANDING OFFICER TO EXCLUDE AT WILL PERSONS WHO
EARNED THEIR LIVING BY WORKING ON MILITARY BASES WAS EVEN THEN OF LONG
STANDING.  SPEAKING OF THE SUPERINTENDENT OF THE MILITARY ACADEMY, THE
ATTORNEY GENERAL'S OPINION STATED: 

"HE HAS ALWAYS REGARDED THE CITIZENS RESIDENT WITHIN THE PUBLIC
LIMITS - SUCH AS THE SUTLER, KEEPER OF THE COMMONS, TAILOR, SHOEMAKER,
ARTIFICERS, ETC., EVEN THOUGH THEY OWN HOUSES ON THE PUBLIC GROUNDS, OR
OCCUPY BUILDINGS BELONGING TO THE UNITED STATES  ...  - AS TENANTS AT
WILL, AND LIABLE TO BE REMOVED WHENEVER, IN THE OPINION OF THE
SUPERINTENDENT, THE INTERESTS OF THE ACADEMY REQUIRE IT.  'THIS,' HE
OBSERVES, 'HAS BEEN THE PRACTICE SINCE I HAVE BEEN IN COMMAND; AND
SUCH, I AM TOLD, WAS THE USAGE UNDER THE ADMINISTRATION OF MY
PREDECESSORS.'"  3 OP. ATTY. GEN. 268, 269. 

THIS POWER HAS BEEN EXPRESSLY RECOGNIZED MANY TIMES.  "THE POWER OF A
MILITARY COMMANDANT OVER A RESERVATION IS NECESSARILY EXTENSIVE AND
PRACTICALLY EXCLUSIVE, FORBIDDING ENTRANCE AND CONTROLLING RESIDENCE AS
THE PUBLIC INTEREST MAY DEMAND."  26 OP. ATTY. GEN. 91, 92.  "IT IS
WELL SETTLED THAT A POST COMMANDER CAN, IN HIS DISCRETION, EXCLUDE ALL
PERSONS OTHER THAN THOSE BELONGING TO HIS POST FROM POST AND
RESERVATION GROUNDS."  JAGA 1904/16272, 6 MAY 1904.  "IT IS WELL
SETTLED THAT A POST COMMANDER CAN, UNDER THE AUTHORITY CONFERRED ON HIM
BY STATUTES AND REGULATIONS, IN HIS DISCRETION, EXCLUDE PRIVATE PERSONS
AND PROPERTY THEREFROM, OR ADMIT THEM UNDER SUCH RESTRICTIONS AS HE MAY
PRESCRIBE IN THE INTEREST OF GOOD ORDER AND MILITARY DISCIPLINE (1918
DIG.  OP. J.A.G. 267 AND CASES CITED)."  JAGA 1925/680.44, 6 OCTOBER
1925. 

UNDER THE EXPLICIT AUTHORITY OF ARTICLE 0734 OF THE NAVY REGULATIONS,
AND IN THE LIGHT OF THE HISTORICALLY UNQUESTIONED POWER OF A COMMANDING
OFFICER SUMMARILY TO EXCLUDE CIVILIANS FROM THE AREA OF HIS COMMAND,
THERE CAN REMAIN NO SERIOUS DOUBT OF ADMIRAL TYREE'S AUTHORITY TO
EXCLUDE RACHEL BRAWNER FROM THE GUN FACTORY UPON THE SECURITY OFFICER'S
DETERMINATION THAT SHE FAILED TO MEET THE "SECURITY REQUIREMENTS  ...
OF THE ACTIVITY."  HER ADMITTANCE TO THE INSTALLATION IN THE FIRST
PLACE WAS PERMISSIBLE, IN THE COMMANDING OFFICER'S DISCRETION, ONLY
BECAUSE SHE CAME WITHIN THE EXCEPTION TO THE GENERAL RULE OF EXCLUSION
CONTAINED IN THE THIRD PARAGRAPH OF ARTICLE 0734 OF THE REGULATIONS. 
AND THE PLAIN WORDS OF ARTICLE 0734 MADE ABSOLUTE THE COMMANDING
OFFICER'S POWER TO WITHDRAW HER PERMISSION TO ENTER THE GUN FACTORY AT
ANY TIME. 

                                           II. 

THE QUESTION REMAINS WHETHER ADMIRAL TYREE'S ACTION IN SUMMARILY
DENYING RACHEL BRAWNER ACCESS TO THE SITE OF HER FORMER EMPLOYMENT
VIOLATED THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  THIS QUESTION CANNOT BE ANSWERED BY EASY ASSERTION THAT,
BECAUSE SHE HAD NO CONSTITUTIONAL RIGHT TO BE THERE IN THE FIRST PLACE,
SHE WAS NOT DEPRIVED OF LIBERTY OR PROPERTY BY THE SUPERINTENDENT'S
ACTION.  "ONE MAY NOT HAVE A CONSTITUTIONAL RIGHT TO GO TO BAGHDAD, BUT
THE GOVERNMENT MAY NOT PROHIBIT ONE FROM GOING THERE UNLESS BY MEANS
CONSONANT WITH DUE PROCESS OF LAW."   HOMER V. RICHMOND, 110 U.S. APP.
D.C. 226, 229, 292 F.2D 719, 722.  IT IS THE PETITIONERS' CLAIM THAT
DUE PROCESS IN THIS CASE REQUIRED THAT RACHEL BRAWNER BE ADVISED OF THE
SPECIFIC GROUNDS FOR HER EXCLUSION AND BE ACCORDED A HEARING AT WHICH
SHE MIGHT REFUTE THEM.  WE ARE SATISFIED, HOWEVER, THAT UNDER THE
CIRCUMSTANCES OF THIS CASE SUCH A PROCEDURE WAS NOT CONSTITUTIONALLY
REQUIRED. 

THE FIFTH AMENDMENT DOES NOT REQUIRE A TRIAL-TYPE HEARING IN EVERY
CONCEIVABLE CASE OF GOVERNMENT IMPAIRMENT OF PRIVATE INTEREST.  "FOR,
THOUGH 'DUE PROCESS OF LAW' GENERALLY IMPLIES AND INCLUDES ACTOR, REUS,
JUDEX, REGULAR ALLEGATIONS, OPPORTUNITY TO ANSWER, AND A TRIAL
ACCORDING TO SOME SETTLED COURSE OF JUDICIAL PROCEEDINGS,  ...  YET,
THIS IS NOT UNIVERSALLY TRUE."  MURRAY'S LESSEE V. HOBOKEN LAND AND
IMPROVEMENT CO., 18 HOW.  272, 280.  THE VERY NATURE OF DUE PROCESS
NEGATES ANY CONCEPT OF INFLEXIBLE PROCEDURES UNIVERSALLY APPLICABLE TO
EVERY IMAGINABLE SITUATION.  COMMUNICATIONS COMM'N V. WJR, 337 U.S.
265, 275-276; HANNAH V. LARCHE, 363 U.S. 420, 440, 442; HAGAR V.
RECLAMATION DISTRICT NO. 108, 111 U.S. 701, 708-709.  "'DUE PROCESS,'
UNLIKE SOME LEGAL RULES, IS NOT A TECHNICAL CONCEPTION WITH A FIXED
CONTENT UNRELATED TO TIME, PLACE AND CIRCUMSTANCES."  IT IS "COMPOUNDED
OF HISTORY, REASON, THE PAST COURSE OF DECISIONS  ...  ."  JOINT ANTI
FASCIST COMM. V. MCGRATH, 341 U.S. 123, 162-163 (CONCURRING OPINION). 
AS THESE AND OTHER CASES MAKE CLEAR, CONSIDERATION OF WHAT PROCEDURES
DUE PROCESS MAY REQUIRE UNDER ANY GIVEN SET OF CIRCUMSTANCES MUST BEGIN
WITH A DETERMINATION OF THE PRECISE NATURE OF THE GOVERNMENT FUNCTION
INVOLVED AS WELL AS OF THE PRIVATE INTEREST THAT HAS BEEN AFFECTED BY
GOVERNMENTAL ACTION.  WHERE IT HAS BEEN POSSIBLE TO CHARACTERIZE THAT
PRIVATE INTEREST (PERHAPS IN OVERSIMPLIFICATION) (FN8) AS A MERE
PRIVILEGE SUBJECT TO THE EXECUTIVE'S PLENARY POWER, IT HAS
TRADITIONALLY BEEN HELD THAT NOTICE AND HEARING ARE NOT
CONSTITUTIONALLY REQUIRED.  OCEANIC NAVIGATION CO. V. STRANAHAN, 214
U.S. 320, 340-343; KNAUFF V. SHAUGHNESSY, 338 U.S. 537; JAY V. BOYD,
351 U.S. 345, 354-358; CF.  BUTTFIELD V. STRANAHAN, 192 U.S. 470, 497. 

WHAT, THEN, WAS THE PRIVATE INTEREST AFFECTED BY ADMIRAL TYREE'S
ACTION IN THE PRESENT CASE?  IT MOST ASSUREDLY WAS NOT THE RIGHT TO
FOLLOW A CHOSEN TRADE OR PROFESSION.  CF. DENT V. WEST VIRGINIA, 129
U.S. 114; SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232; TRUAX V.
RAICH, 239 U.S. 33.  RACHEL BRAWNER REMAINED ENTIRELY FREE TO OBTAIN
EMPLOYMENT AS A SHORT-ORDER COOK OR TO GET ANY OTHER JOB, EITHER WITH
M&M OR WITH ANY OTHER EMPLOYER.  ALL THAT WAS DENIED HER WAS THE
OPPORTUNITY TO WORK AT ONE ISOLATED AND SPECIFIC MILITARY
INSTALLATION. 

MOREOVER, THE GOVERNMENTAL FUNCTION OPERATING HERE WAS NOT THE POWER
TO REGULATE OR LICENSE, AS LAWMAKER, AN ENTIRE TRADE OR PROFESSION, OR
TO CONTROL AN ENTIRE BRANCH OF PRIVATE BUSINESS, BUT, RATHER, AS
PROPRIETOR, TO MANAGE THE INTERNAL OPERATION OF AN IMPORTANT FEDERAL
MILITARY ESTABLISHMENT.  SEE PEOPLE V. CRANE, 214 N.Y. 154, 167-169,
108 N.E. 427, 431-432 (PER CARDOZO, J.); CF. PERKINS V. LUKENS STEEL
CO., 310 U.S. 113, 129.  IN THAT PROPRIETARY MILITARY CAPACITY, THE
FEDERAL GOVERNMENT, AS HAS BEEN POINTED OUT, HAS TRADITIONALLY
EXERCISED UNFETTERED CONTROL. 

THUS, THE NATURE BOTH OF THE PRIVATE INTEREST WHICH HAS BEEN IMPAIRED
AND THE GOVERNMENTAL POWER WHICH HAS BEEN EXERCISED MAKES THIS CASE
QUITE DIFFERENT FROM THAT OF THE LAWYER IN SCHWARE, SUPRA, THE
PHYSICIAN IN DENT, SUPRA, AND THE COOK IN RAICH, SUPRA.  THIS CASE,
LIKE PERKINS V. LUKENS STEEL CO., 310 U.S. 113, INVOLVES THE FEDERAL
GOVERNMENT'S DISPATCH OF ITS OWN INTERNAL AFFAIRS.  THE COURT HAS
CONSISTENTLY RECOGNIZED THAT AN INTEREST CLOSELY ANALOGOUS TO RACHEL
BRAWNER'S, THE INTEREST OF A GOVERNMENT EMPLOYEE IN RETAINING HIS JOB,
CAN BE SUMMARILY DENIED.  IT HAS BECOME A SETTLED PRINCIPLE THAT
GOVERNMENT EMPLOYMENT, IN THE ABSENCE OF LEGISLATION, CAN BE REVOKED AT
THE WILL OF THE APPOINTING OFFICER.  IN THE MATTER OF HENNEN, 13 PET.
230, 246, 259; CRENSHAW V. UNITED STATES, 134 U.S. 99, 108; PARSONS V.
UNITED STATES, 167 U.S. 324, 331-334; KEIM V. UNITED STATES, 177 U.S.
290, 293-294; TAYLOR AND MARSHALL V. BECKHAM (NO. 1), 178 U.S. 548, 575
578.  THIS PRINCIPLE WAS REAFFIRMED QUITE RECENTLY IN VITARELLI V.
SEATON, 359 U.S. 535.  THERE WE POINTED OUT THAT VITARELLI, AN INTERIOR
DEPARTMENT EMPLOYEE WHO HAD NOT QUALIFIED FOR STATUTORY PROTECTION
UNDER THE CIVIL SERVICE ACT, "COULD HAVE BEEN SUMMARILY DISCHARGED BY
THE SECRETARY AT ANY TIME WITHOUT THE GIVING OF A REASON  ...  ."  359
U.S., AT 539. 

IT IS ARGUED THAT HIS VIEW OF RACHEL BRAWNER'S INTEREST IS
INCONSISTENT WITH OUR DECISIONS IN UNITED PUBLIC WORKERS V. MITCHELL,
330 U.S. 75, AND WIEMAN V. UPDEGRAFF, 344 U.S. 183.  IN THOSE TWO CASES
AN INDIVIDUAL'S INTEREST IN GOVERNMENT EMPLOYMENT WAS RECOGNIZED AS
ENTITLED TO CONSTITUTIONAL PROTECTION, AND IT IS CONTENDED THAT WHAT
THE COURT SAID IN DECIDING THEM WOULD REQUIRE US TO HOLD THAT RACHEL
BRAWNER WAS ENTITLED TO NOTICE AND HEARING IN THIS CASE.  IN UNITED
PUBLIC WORKERS THE COURT OBSERVED THAT "NONE WOULD DENY" THAT "CONGRESS
MAY NOT 'ENACT A REGULATION PROVIDING THAT NO REPUBLICAN, JEW OR NEGRO
SHALL BE APPOINTED TO FEDERAL OFFICE, OR THAT NO FEDERAL EMPLOYEE SHALL
ATTEND MASS OR TAKE ANY ACTIVE PART IN MISSIONARY WORK.'"  330 U.S., AT
100.  IN WIEMAN THE COURT HELD UNCONSTITUTIONAL A STATUTE WHICH
EXCLUDED PERSONS FROM STATE EMPLOYMENT SOLELY ON THE BASIS OF
MEMBERSHIP IN ALLEGED "COMMUNIST-FRONT" OR "SUBVERSIVE" ORGANIZATIONS,
REGARDLESS OF THEIR KNOWLEDGE CONCERNING THE ACTIVITIES AND PURPOSES OF
THE ORGANIZATIONS TO WHICH THEY HAD BELONGED.  IN THE COURSE OF ITS
DECISION THE COURT SAID, "WE NEED NOT PAUSE TO CONSIDER WHETHER AN
ABSTRACT RIGHT TO PUBLIC EMPLOYMENT EXISTS.  IT IS SUFFICIENT TO SAY
THAT CONSTITUTIONAL PROTECTION DOES EXTEND TO THE PUBLIC SERVANT WHOSE
EXCLUSION PURSUANT TO A STATUTE IS PATENTLY ARBITRARY OR
DISCRIMINATORY."  344 U.S., AT 192. 

NOTHING THAT WAS SAID OR DECIDED IN UNITED PUBLIC WORKERS OR WIEMAN
WOULD LEAD TO THE CONCLUSION THAT RACHEL BRAWNER COULD NOT BE DENIED
ACCESS TO THE GUN FACTORY WITHOUT NOTICE AND AN OPPORTUNITY TO BE
HEARD.  THOSE CASES DEMONSTRATE ONLY THAT THE STATE AND FEDERAL
GOVERNMENTS, EVEN IN THE EXERCISE OF THEIR INTERNAL OPERATIONS, DO NOT
CONSTITUTIONALLY HAVE THE COMPLETE FREEDOM OF ACTION ENJOYED BY A
PRIVATE EMPLOYER.  BUT TO ACKNOWLEDGE THAT THERE EXIST CONSTITUTIONAL
RESTRAINTS UPON STATE AND FEDERAL GOVERNMENTS IN DEALING WITH THEIR
EMPLOYEES IS NOT TO SAY THAT ALL SUCH EMPLOYEES HAVE A CONSTITUTIONAL
RIGHT TO NOTICE AND A HEARING BEFORE THEY CAN BE REMOVED.  WE MAY
ASSUME THAT RACHEL BRAWNER COULD NOT CONSTITUTIONALLY HAVE BEEN
EXCLUDED FROM THE GUN FACTORY IF THE ANNOUNCED GROUNDS FOR HER
EXCLUSION HAD BEEN PATENTLY ARBITRARY OR DISCRIMINATORY - THAT SHE
COULD NOT HAVE BEEN KEPT OUT BECAUSE SHE WAS A DEMOCRAT OR A
METHODIST.  IT DOES NOT FOLLOW, HOWEVER, THAT SHE WAS ENTITLED TO
NOTICE AND A HEARING WHEN THE REASON ADVANCED FOR HER EXCLUSION WAS, AS
HERE, ENTIRELY RATIONAL AND IN ACCORD WITH THE CONTRACT WITH M & M. 

FINALLY, IT IS TO BE NOTED THAT THIS IS NOT A CASE WHERE GOVERNMENT
ACTION HAS OPERATED TO BESTOW A BADGE OF DISLOYALTY OR INFAMY, WITH AN
ATTENDANT FORECLOSURE FROM OTHER EMPLOYMENT OPPORTUNITY.  SEE WIEMAN V.
UPDEGRAFF, 344 U.S. 183, 190-191; JOINT ANTI-FASCIST COMM. V. MCGRATH,
341 U.S. 123, 140-141; CF. BAILEY V. RICHARDSON, 86 U.S. APP.  D.C.
248, 182 F.2D 46, AFF'D BY AN EQUALLY DIVIDED COURT, 341 U.S. 918. 
(FN9) ALL THIS RECORD SHOWS IS THAT, IN THE OPINION OF THE SECURITY
OFFICER OF THE GUN FACTORY, CONCURRED IN BY THE SUPERINTENDENT, RACHEL
BRAWNER FAILED TO MEET THE PARTICULAR SECURITY REQUIREMENTS OF THAT
SPECIFIC MILITARY INSTALLATION.  THERE IS NOTHING TO INDICATE THAT THIS
DETERMINATION WOULD IN ANY WAY IMPAIR RACHEL BRAWNER'S EMPLOYMENT
OPPORTUNITIES ANYWHERE ELSE.  (FN10)  AS POINTED OUT BY JUDGE
PRETTYMAN, SPEAKING FOR THE COURT OF APPEALS, "NOBODY HAS SAID THAT
BRAWNER IS DISLOYAL OR IS SUSPECTED OF THE SLIGHTEST SHADOW OF
INTENTIONAL WRONGDOING.  'SECURITY REQUIREMENTS' AT SUCH AN
INSTALLATION, LIKE SUCH REQUIREMENTS UNDER MANY OTHER CIRCUMSTANCES,
COVER MANY MATTERS OTHER THAN LOYALTY."  109 U.S. APP. D.C., AT 49, 284
F.2D, AT 183.  FOR ALL THAT APPEARS, THE SECURITY OFFICER AND THE
SUPERINTENDENT MAY HAVE SIMPLY THOUGHT THAT RACHEL BRAWNER WAS
GARRULOUS, OR CARELESS WITH HER IDENTIFICATION BADGE. 

FOR THESE REASONS, WE CONCLUDE THAT THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT WAS NOT VIOLATED IN THIS CASE.  AFFIRMED. 

FN1  THE NAME OF THE NAVAL GUN FACTORY HAS NOW BEEN OFFICIALLY
CHANGED TO NAVAL WEAPONS PLANT.  IT WILL BE REFERRED TO AS THE "GUN
FACTORY" IN THIS OPINION. 

FN2  THE APPEAL WAS ORIGINALLY HEARD BY A PANEL OF THREE JUDGES, AND
THE DISTRICT COURT'S JUDGMENT WAS REVERSED, ONE JUDGE DISSENTING. 
AFTER REHEARING EN BANC, THE ORIGINAL OPINION WAS WITHDRAWN, AND THE
DISTRICT COURT'S JUDGMENT WAS AFFIRMED.  109 U.S. APP. D.C. 39, 284
F.2D 173. 

FN3  SEE R.S. SEC. 1547 (1875) WHICH WAS DERIVED FROM THE ACT OF JULY
14, 1862, C. 164, SEC. 5, 12 STAT. 565.  SEE ALSO THE ACT OF APRIL 24,
1816, C. 69, SEC. 9, 3 STAT. 298; THE ACT OF MARCH 3, 1813, C. 52, SEC.
5, 2 STAT. 819. 

FN4  SEE ALSO 25 OP. ATTY. GEN. 270. 

FN5  THE ABSENCE OF PRESIDENTIAL APPROVAL WAS RELIED UPON IN ONE CASE
AS A BASIS FOR FINDING CERTAIN ADMINISTRATIVE ACTION UNAUTHORIZED.  SEE
PHILLIPS V. UNITED STATES GRAIN CORP., 279 F. 244, 248-249, REV'D ON
OTHER GROUNDS, 261 U.S. 106.  SEE ALSO 25 OP. ATTY. GEN. 270, 275. 

FN6  A TRADESMAN HAS BEEN DEFINED BY WEBSTER AS "A SHOPKEEPER; ALSO,
ONE OF HIS EMPLOYEES."  WEBSTER, NEW INTERNATIONAL DICTIONARY (SECOND
EDITION, UNABRIDGED, 1958), 2684. 

FN7  THE CONTRAST WITH THE HISTORY OF THE SECURITY PROGRAM INVOLVED
IN GREENE V. MCELROY IS STRIKING.  THERE IT WAS POINTED OUT THAT "PRIOR
TO WORLD WAR II, ONLY SPORADIC EFFORTS WERE MADE TO CONTROL THE
CLEARANCE OF PERSONS WHO WORKED IN PRIVATE ESTABLISHMENTS WHICH
MANUFACTURED MATERIALS FOR NATIONAL DEFENSE."  360 U.S., AT 493. 

FN8  SEE DAVIS, THE REQUIREMENT OF A TRIAL-TYPE HEARING, 70 HARV. L.
REV. 193, 222-224. 

FN9  COMPARE DAVIS, THE REQUIREMENT OF A TRIAL-TYPE HEARING, 70 HARV.
L. REV. 193, 229-230, AND NOTE, THE SUPREME COURT, 1950 TERM, 65 HARV.
L. REV. 107, 156-158, WITH RICHARDSON, PROBLEMS IN THE REMOVAL OF
FEDERAL CIVIL SERVANTS, 54 MICH. L. REV. 219, 240-241. 

FN10  IN ORAL ARGUMENT GOVERNMENT COUNSEL EMPHATICALLY REPRESENTED
THAT DENIAL OF ACCESS TO THE GUN FACTORY WOULD NOT "BY LAW OR IN FACT"
PREVENT RACHEL BRAWNER FROM OBTAINING EMPLOYMENT ON ANY OTHER FEDERAL
PROPERTY. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

I HAVE GRAVE DOUBTS WHETHER THE REMOVAL OF PETITIONER'S
IDENTIFICATION BADGE FOR "SECURITY REASONS" WITHOUT NOTICE OF CHARGES
OR OPPORTUNITY TO REFUTE THEM WAS AUTHORIZED BY STATUTE OR EXECUTIVE
ORDER.  SEE GREENE V. MCELROY, 360 U.S. 474 (1959).  BUT UNDER
COMPULSION OF THE COURT'S DETERMINATION THAT THERE WAS AUTHORITY, I
PASS TO A CONSIDERATION OF THE MORE IMPORTANT CONSTITUTIONAL ISSUE,
WHETHER PETITIONER HAS BEEN DEPRIVED OF LIBERTY OR PROPERTY WITHOUT DUE
PROCESS OF LAW IN VIOLATION OF THE FIFTH AMENDMENT. 

I READ THE COURT'S OPINION TO ACKNOWLEDGE THAT PETITIONER'S STATUS AS
AN EMPLOYEE AT THE GUN FACTORY WAS AN INTEREST OF SUFFICIENT
DEFINITENESS TO BE PROTECTED BY THE FEDERAL CONSTITUTION FROM SOME
KINDS OF GOVERNMENTAL INJURY.  INDEED, THIS ACKNOWLEDGMENT SEEMS
COMPELLED BY OUR CASES.  WIEMAN V. UPDEGRAFF, 344 U.S. 183, (1952);
UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 100 (1947)(DICTUM);
TORCASO V. WATKINS, ANTE, P. 488, DECIDED TODAY.  IN OTHER WORDS, IF
PETITIONER BRAWNER'S BADGE HAD BEEN LIFTED AVOWEDLY ON GROUNDS OF HER
RACE, RELIGION, OR POLITICAL OPINIONS, THE COURT WOULD CONCEDE THAT
SOME CONSTITUTIONALLY PROTECTED INTEREST - WHETHER "LIBERTY" OR
"PROPERTY" IT IS UNNECESSARY TO STATE - HAD BEEN INJURED.  BUT, AS THE
COURT SAYS, THERE HAS BEEN NO SUCH OPEN DISCRIMINATION HERE.  THE
EXPRESSED GROUND OF EXCLUSION WAS THE OBSCURING FORMULATION THAT
PETITIONER FAILED TO MEET THE "SECURITY REQUIREMENTS" OF THE NAVAL
INSTALLATION WHERE SHE WORKED.  I ASSUME FOR PRESENT PURPOSES THAT
SEPARATION AS A "SECURITY RISK," IF THE CHARGE IS PROPERLY ESTABLISHED,
IS NOT UNCONSTITUTIONAL.  BUT THE COURT GOES BEYOND THAT.  IT HOLDS
THAT THE MERE ASSERTION BY GOVERNMENT THAT EXCLUSION IS FOR A VALID
REASON FORECLOSES FURTHER INQUIRY.  THAT IS, UNLESS THE GOVERNMENT
OFFICIAL IS FOOLISH ENOUGH TO ADMIT WHAT HE IS DOING - AND FEW WILL BE
SO FOOLISH AFTER TODAY'S DECISION - HE MAY EMPLOY "SECURITY
REQUIREMENTS" AS A BLIND BEHIND WHICH TO DISMISS AT WILL FOR THE MOST
DISCRIMINATORY OF CAUSES. 

SUCH A RESULT IN EFFECT NULLIFIES THE SUBSTANTIVE RIGHT - NOT TO BE
ARBITRARILY INJURED BY GOVERNMENT - WHICH THE COURT PURPORTS TO
RECOGNIZE.  WHAT SORT OF RIGHT IS IT WHICH ENJOYS ABSOLUTELY NO
PROCEDURAL PROTECTION?  I DO NOT MEAN TO IMPLY THAT PETITIONER COULD
NOT HAVE BEEN EXCLUDED FROM THE INSTALLATION WITHOUT THE FULL
PROCEDURAL PANOPLY OF FIRST HAVING BEEN SUBJECTED TO A TRIAL, WITH
CROSS-EXAMINATION AND CONFRONTATION OF ACCUSERS, AND PROOF OF GUILT
BEYOND A REASONABLE DOUBT.  I NEED NOT GO SO FAR IN THIS CASE.  FOR
UNDER TODAY'S HOLDING PETITIONER IS ENTITLED TO NO PROCESS AT ALL.  SHE
IS NOT TOLD WHAT SHE DID WRONG; SHE IS NOT GIVEN A CHANCE TO DEFEND
HERSELF.  SHE MAY BE THE VICTIM OF THE BASEST CALUMNY, PERHAPS EVEN THE
CAPRICE OF THE GOVERNMENT OFFICIALS IN WHOSE POWER HER STATUS RESTED
COMPLETELY.  IN SUCH A CASE, I CANNOT BELIEVE THAT SHE IS NOT ENTITLED
TO SOME PROCEDURES.  "THE RIGHT TO BE HEARD BEFORE BEING CONDEMNED TO
SUFFER GRIEVOUS LOSS OF ANY KIND, EVEN THOUGH IT MAY NOT INVOLVE THE
STIGMA AND HARDSHIPS OF A CRIMINAL CONVICTION, IS A PRINCIPLE BASIC TO
OUR SOCIETY."  JOINT ANTI-FASCIST REFUGEE COMM. V. MCGRATH, 341 U.S.
123, 168 (1951)(CONCURRING OPINION.)  SEE ALSO HOMER V. RICHMOND, 110
U.S. APP. D.C. 226, 292 F.2D 719 (1961); PARKER V. LESTER, 227 F.2D 708
(C.A. 9TH CIR. 1955).  IN SUM, THE COURT HOLDS THAT PETITIONER HAS A
RIGHT NOT TO HAVE HER IDENTIFICATION BADGE TAKEN AWAY FOR AN
"ARBITRARY" REASON, BUT NO RIGHT TO BE TOLD IN DETAIL WHAT THE REASON
IS, OR TO DEFEND HER OWN INNOCENCE, IN ORDER TO SHOW, PERHAPS, THAT THE
TRUE REASON FOR DEPRIVATION WAS ONE FORBIDDEN BY THE CONSTITUTION. 
THAT IS AN INTERNAL CONTRADICTION TO WHICH I CANNOT SUBSCRIBE. 

ONE FURTHER CIRCUMSTANCE MAKES THIS PARTICULARLY A CASE WHERE
PROCEDURAL REQUIREMENTS OF FAIRNESS ARE ESSENTIAL.  PETITIONER WAS NOT
SIMPLY EXCLUDED FROM THE BASE SUMMARILY, WITHOUT A NOTICE AND CHANCE TO
DEFEND HERSELF.  SHE WAS EXCLUDED AS A "SECURITY RISK," THAT
DESIGNATION MOST ODIOUS IN OUR TIMES.  THE COURT CONSOLES ITSELF WITH
THE SPECULATION THAT SHE MAY HAVE BEEN MERELY GARRULOUS, OR CARELESS
WITH HER IDENTIFICATION BADGE, AND INDEED SHE MIGHT, ALTHOUGH SHE WILL
NEVER FIND OUT.  BUT, IN THE COMMON UNDERSTANDING OF THE PUBLIC WITH
WHOM PETITIONER MUST HEREAFTER LIVE AND WORK, THE TERM "SECURITY RISK"
CARRIES A MUCH MORE SINISTER MEANING.  SEE BEILAN V. BOARD OF PUBLIC
EDUCATION, 357 U.S. 399, 421-423 (1958)(DISSENTING OPINION).  IT IS FAR
MORE LIKELY TO BE TAKEN AS AN ACCUSATION OF COMMUNISM OR DISLOYALTY
THAN IMPUTATION OF SOME SMALL PERSONAL FAULT.  PERHAPS THE GOVERNMENT
HAS REASONS FOR LUMPING SUCH A MULTITUDE OF SINS UNDER A MISLEADING
TERM.  BUT IT OUGHT NOT TO AFFIX A "BADGE OF INFAMY," WIEMAN V.
UPDEGRAFF, SUPRA, AT 191, TO A PERSON WITHOUT SOME STATEMENT OF
CHARGES, AND SOME OPPORTUNITY TO SPEAK IN REPLY. 

IT MAY BE, OF COURSE, THAT PETITIONER WAS JUSTLY EXCLUDED FROM THE
GUN FACTORY.  BUT, IN MY VIEW, IT IS FUNDAMENTALLY UNFAIR, AND
THEREFORE VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT,
TO DEPRIVE HER OF A VALUABLE RELATIONSHIP SO SUMMARILY. 
..END :






BARGAINTOWN, U.S.A., INC. V. WHITMAN 367 U.S. 903 


NO. 76.  DECIDED JUNE 19, 1961 - F. SUPP. - , AFFIRMED. 


BARGAINTOWN, U.S.A., INC., ET AL. V. WHITMAN, DISTRICT ATTORNEY OF
LEBANON COUNTY, PA., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  MCGOWAN V. MARYLAND, 366 U.S. 420, AND TWO
GUYS FROM HARRISON-ALLENTOWN, INC., V. MCGINLEY, 366 U.S. 582. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :













BECK V. MAINE 367 U.S. 903 


NO. 899.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  156 ME. 403, 165 A.2D
433. 


BECK V. MAINE. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MAINE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CAROLINA AMUSEMENT CO. V. MARTIN 367 U.S. 904 


NO. 424.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW: 236 S.C. 558, 115 S.E.2D 273. 


CAROLINA AMUSEMENT CO. ET AL. V. MARTIN, SHERIFF, ET AL. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :














BIRDWELL V. KIRKLAND 367 U.S. 904 


NO. 914.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW: 337 S.W.2D 120. 


BIRDWELL ET AL. V. KIRKLAND ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, SECOND SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















BROUGHTON V. OHIO 367 U.S. 905 


NO. 554.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW: 171 OHIO ST. 261, 168 N.E.2D 744. 


BROUGHTON V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














WEISBERG V. OHIO 367 U.S. 905 


NO. 808.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW: 171 OHIO ST. 302, 170 N.E.2D 432. 


WEISBERG V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














COMMISSIONER OF INTERNAL REVENUE V. MILWAUKEE & SUBURBAN TRANSPORT CORP.
367 U.S. 906 


NO. 843.  DECIDED JUNE 19, 1961 - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED - REPORTED BELOW:  283 F.2D 279. 


COMMISSIONER OF INTERNAL REVENUE V. MILWAUKEE & SUBURBAN TRANSPORT
CORP. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED IN LIGHT OF AMERICAN AUTOMOBILE
ASSOCIATION V. UNITED STATES, ANTE, P. 687, AND UNITED STATES V.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., 366 U.S. 380. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :










HARPER V. BANNAN 367 U.S. 906 


NO. 1119, MISC.  DECIDED JUNE 19, 1961. 


HARPER V. BANNAN, WARDEN. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :



















TRUBEK V. ULLMAN 367 U.S. 907 


NO. 847.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW:  147 CONN. 633, 165 A.2D 158. 


TRUBEK ET AL. V. ULLMAN, STATE'S ATTORNEY. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS, MR. JUSTICE HARLAN AND MR. JUSTICE STEWART ARE
OF THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :














TUGWELL V. BUSH 367 U.S. 907 


NO. 1037.  DECIDED JUNE 19, 1961 - 194 F. SUPP. 182, AFFIRMED. 


TUGWELL, TREASURER OF LOUISIANA, ET AL. V. BUSH ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 
..END :


















DENNY V. BUSH 367 U.S. 908 


NO. 868.  DECIDED JUNE 19, 1961 - 191 F. SUPP. 871, AFFIRMED. 


DENNY ET AL. V. BUSH ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















LEGISLATURE OF LOUISIANA V. UNITED STATES 367 U.S. 908 


NO. 967.  DECIDED JUNE 19, 1961 - 191 F. SUPP. 871, AFFIRMED. 


LEGISLATURE OF LOUISIANA ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SWIFT & CO. V. UNITED STATES 367 U.S. 909 


NO. 875.  DECIDED JUNE 19, 1961 - 189 F. SUPP. 885, AFFIRMED. 


SWIFT & CO. ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED.  THE
MOTION OF WESTERN STATES MEAT PACKERS ASSOCIATION, INC., ET AL. FOR
LEAVE TO FILE BRIEF AS AMICI CURIAE IS GRANTED. 
..END :
















HOBBS V. ALASKA 367 U.S. 909 


NO. 954.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW: - ALASKA - , 359 P.2D 956. 


HOBBS V. ALASKA. 

APPEAL FROM THE SUPREME COURT OF ALASKA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















VIRGINIA ELECTRIC & POWER CO. V. JOHNSON 367 U.S. 910 


NO. 906.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW: 254 N.C. 17, 118 S.E.2D 155. 


VIRGINIA ELECTRIC & POWER CO. V. JOHNSON, COMMISSIONER OF REVENUE OF
NORTH CAROLINA. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















LOCAL 1422, INTERNATIONAL LONGSHOREMEN'S UNION, AFL-CIO V. SOUTH
CAROLINA STATE PORTS AUTHORITY 367 U.S. 910 


NO. 922.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED.  REPORTED BELOW:
191 F. SUPP. 156. 


LOCAL 1422, INTERNATIONAL LONGSHOREMEN'S UNION, AFL-CIO, ET AL. V. SOUTH
CAROLINA STATE PORTS AUTHORITY. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF SOUTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :















COMMISSIONER OF INTERNAL REVENUE V. SCHLUDE 367 U.S. 911 


NO. 629.  DECIDED JUNE 19, 1961 - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED - REPORTED BELOW:  283 F.2D 234. 


COMMISSIONER OF INTERNAL REVENUE V. SCHLUDE ET UX. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED FOR FURTHER CONSIDERATION IN THE LIGHT
OF AMERICAN AUTOMOBILE ASSOCIATION V. UNITED STATES, ANTE.  P. 687. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :













FAMILY FAIR, INC. V. OHIO 367 U.S. 911 


NO. 754.  DECIDED JUNE 19, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW: 171 OHIO ST. 322, 170 N.E.2D 731. 


FAMILY FAIR, INC., ET AL. V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :













JARECKI V. G.D. SEARLE & CO. 367 U.S. 303 


NO. 151.  ARGUED MARCH 21, 1961 - DECIDED JUNE 12, 1961* - 274 F.2D 129,
REVERSED - 278 F.2D 148, AFFIRMED. 

*TOGETHER WITH NO. 169, POLAROID CORPORATION V. COMMISSIONER OF
INTERNAL REVENUE, CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT, ARGUED MARCH 21-22, 1961. 


1.  DEVELOPMENT OF NEW PRODUCTS IS NOT "DISCOVERY" WITHIN THE MEANING
OF SEC. 456(A)(2)(B) OF THE INTERNAL REVENUE CODE OF 1939, AS AMENDED;
AND INCOME RESULTING FROM THE MANUFACTURE AND SALE OF CERTAIN PATENTED
DRUGS, CAMERAS, CAMERA EQUIPMENT AND STEREO PRODUCTS RESULTING FROM
INVENTIONS IS NOT INCLUDED WITHIN THE STATUTORY DEFINITION OF "ABNORMAL
INCOME," IN SEC. 456(A), SO AS TO QUALIFY FOR KOREAN WAR EXCESS PROFITS
TAX RELIEF UNDER THE EXCESS PROFITS TAX ACT OF 1950.  PP. 304-313. 

2.  SUCH INCOME IS NOT MADE ELIGIBLE FOR KOREAN WAR EXCESS PROFITS
TAX RELIEF BY THE CONCLUDING SENTENCE OF PARAGRAPH (2) OF SEC. 456(A),
WHICH PROVIDES THAT, "THE CLASSIFICATION OF INCOME OF ANY CLASS NOT
DESCRIBED IN SUBPARAGRAPHS (A) TO (D), INCLUSIVE, SHALL BE SUBJECT TO
REGULATIONS PRESCRIBED BY THE SECRETARY."  PP. 313-315. 

JARECKI, FORMER COLLECTOR OF INTERNAL REVENUE, ET AL. V. G.D. SEARLE &
CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT PROBLEMS IN THE INTERPRETATION OF SEC. 456(A) OF
THE INTERNAL REVENUE CODE OF 1939, A SECTION OF THE EXCESS PROFITS TAX
ACT OF 1950, 64 STAT. 1137.  THE ACT, WHICH IS INTENDED TO TAX AT HIGH
RATES UNUSUALLY HIGH PROFITS EARNED DURING THE KOREAN WAR, IMPOSES A
TAX ON PROFITS IN EXCESS OF AN AMOUNT DEEMED TO REPRESENT THE
TAXPAYER'S NORMAL PROFITS.  (FN1)  RECOGNIZING, HOWEVER, THAT SOME
PROFITS OTHERWISE SUBJECT TO TAX UNDER THIS SCHEME MIGHT STEM FROM
CAUSES OTHER THAN THE INFLATED WARTIME ECONOMY, CONGRESS ENACTED SEC.
456.  THIS SECTION GRANTS RELIEF IN CERTAIN CASES OF "ABNORMAL INCOME"
AS DEFINED IN SEC. 456(A) (FN2) BY ALLOCATING SOME OF THIS INCOME TO
YEARS OTHER THAN THOSE IN WHICH IT WAS RECEIVED FOR PURPOSES OF
COMPUTING THE TAX. 

THE DISPUTE IN THESE CASES IS WHETHER INCOME FROM THE SALES OF
CERTAIN NEW PRODUCTS FALLS WITHIN THE STATUTORY DEFINITION OF "ABNORMAL
INCOME."  TAXPAYERS CLAIM THAT THE INCOME FROM THE SALES OF THEIR
PRODUCTS IS INCOME RESULTING FROM "DISCOVERY."  THEY CLAIM IT IS
THEREFORE "ABNORMAL INCOME" WITHIN THE CLASS DEFINED BY SEC.
456(A)(2)(B) AS: 

"INCOME RESULTING FROM EXPLORATION, DISCOVERY, OR PROSPECTING, OR ANY
COMBINATION OF THE FOREGOING, EXTENDING OVER A PERIOD OF MORE THAN 12
MONTHS." 

TAXPAYER IN NO. 151 IS A CORPORATION ENGAGED IN THE MANUFACTURE AND
MARKETING OF DRUGS.  AS A RESULT OF RESEARCH EXTENDING FOR MORE THAN 12
MONTHS, IT PRODUCED TWO NEW DRUGS, "BANTHINE," USED IN THE TREATMENT OF
PEPTIC ULCERS, AND "DRAMAMINE," FOR RELIEF FROM MOTION SICKNESS. 
TAXPAYER RECEIVED PATENTS ON BOTH DRUGS, AND IT ASSERTS THAT BOTH WERE
NEW PRODUCTS AND NOT MERELY IMPROVEMENTS ON PRE-EXISTING COMPOUNDS. 
TAXPAYER RECEIVED INCOME FROM THE SALE OF "BANTHINE" AND "DRAMAMINE" IN
THE YEARS 1950 THROUGH 1952.  IT PAID ITS TAX WITHOUT CLAIMING RELIEF
UNDER SEC. 456, AND THEN CLAIMED A REFUND.  ON DENIAL OF ITS CLAIM,
TAXPAYER FILED A COMPLAINT IN THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS.  THE DISTRICT COURT DISMISSED THE COMPLAINT, BUT
THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED.  IT HELD THAT
"DISCOVERY" MIGHT INCLUDE THE PREPARATION OF NEW PRODUCTS AND THAT THE
CASE MUST BE REMANDED FOR A TRIAL ON THE ISSUE OF WHETHER TAXPAYER'S
DRUGS "WERE ACTUALLY DISCOVERIES."  274 F.2D 129, 131. 

TAXPAYER IN NO. 169 IS THE INVENTOR AND PRODUCER OF THE "POLAROID
LAND PROCESS," A CAMERA AND FILM WHICH PRODUCE A PHOTOGRAPH IN 60
SECONDS, AND THE "POLAROID 3-D SYNTHETIC POLARIZER," A DEVICE
INCORPORATED IN THE "VIEWERS" THROUGH WHICH AUDIENCES WATCHED THE THREE
DIMENSIONAL MOTION PICTURES IN VOGUE SOME YEARS AGO.  THESE INVENTIONS,
EACH THE PRODUCT OF MORE THAN 12 MONTHS' RESEARCH, ARE NOVEL, ACCORDING
TO TAXPAYER, AND EACH HAS BEEN PATENTED.  THE POLAROID LAND EQUIPMENT
WAS THE SUBJECT OF 238 PATENTS BY THE END OF 1958, AND TAXPAYER
CHARACTERIZES THIS INVENTION AS "REVOLUTIONARY."  ITS PRODUCTION WAS A
NEW DEPARTURE IN THE BUSINESS OF TAXPAYER, WHICH HAD HITHERTO BEEN
ENGAGED PRIMARILY IN MANUFACTURING AND SELLING SUCH OPTICAL PRODUCTS AS
POLARIZING SUNGLASSES, VISORS AND CAMERA FILTERS.  IN ITS RETURNS FOR
1951 THROUGH 1953 TAXPAYER UTILIZED THE PROVISIONS OF SEC. 456 IN
COMPUTING ITS TAX ON INCOME FROM THE SALES OF ITS PHOTOGRAPHIC
EQUIPMENT AND 3-D POLARIZERS.  THE COMMISSIONER DETERMINED THAT SEC.
456 WAS NOT APPLICABLE, AND THE TAX COURT UPHELD HIS DETERMINATION OF A
DEFICIENCY.  THE COURT OF APPEALS FOR THE FIRST CIRCUIT AFFIRMED,
HOLDING THAT TAXPAYER'S INVENTIONS WERE NOT "DISCOVERIES" AND ITS
INCOME FROM THEIR SALE NOT "ABNORMAL INCOME."  278 F.2D 148. 

WE GRANTED CERTIORARI IN EACH CASE TO RESOLVE THE CONFLICT BETWEEN
THE DECISIONS OF THE FIRST AND SEVENTH CIRCUITS.  364 U.S. 812, 813. 

                                 I. 

FOR PRESENT PURPOSES WE ACCEPT, AS DID THE FIRST CIRCUIT, TAXPAYERS'
ASSERTIONS OF THE NOVELTY OF THEIR PRODUCTS.  BUT WE ALSO AGREE WITH
THAT COURT THAT TAXPAYERS' INVENTIONS ARE NOT "DISCOVERIES" AS THAT
WORD IS USED IN SEC. 456(A)(2)(B) AND THAT INCOME FROM SALES OF THE NEW
PRODUCTS MAY NOT RECEIVE THE SPECIAL TREATMENT PROVIDED BY SEC. 456. 

WE LOOK FIRST TO THE FACE OF THE STATUTE.  "DISCOVERY" IS A WORD
USABLE IN MANY CONTEXTS AND WITH VARIOUS SHADES OF MEANING.  HERE,
HOWEVER, IT DOES NOT STAND ALONE, BUT GATHERS MEANING FROM THE WORDS
AROUND IT.  THESE WORDS STRONGLY SUGGEST THAT A PRECISE AND NARROW
APPLICATION WAS INTENDED IN SEC. 456.  THE THREE WORDS IN CONJUNCTION,
"EXPLORATION," "DISCOVERY" AND "PROSPECTING," ALL DESCRIBE INCOME
PRODUCING ACTIVITY IN THE OIL AND GAS AND MINING INDUSTRIES, BUT IT IS
DIFFICULT TO CONCEIVE OF ANY OTHER INDUSTRY TO WHICH THEY ALL APPLY. 
CERTAINLY THE DEVELOPMENT AND MANUFACTURE OF DRUGS AND CAMERAS ARE NOT
SUCH INDUSTRIES.  THE MAXIM NOSCITUR A SOCIIS, THAT A WORD IS KNOWN BY
THE COMPANY IT KEEPS, WHILE NOT AN INESCAPABLE RULE, IS OFTEN WISELY
APPLIED WHERE A WORD IS CAPABLE OF MANY MEANINGS IN ORDER TO AVOID THE
GIVING OF UNINTENDED BREADTH TO THE ACTS OF CONGRESS.  SEE, E.G., NEAL
V. CLARK, 95 U.S. 704, 708-709.  THE APPLICATION OF THE MAXIM HERE
LEADS TO THE CONCLUSION THAT "DISCOVERY" IN SEC. 456 MEANS ONLY THE
DISCOVERY OF MINERAL RESOURCES. 

WHEN WE EXAMINE FURTHER THE CONSTRUCTION OF SEC. 456(A)(2) AND
COMPARE SUBPARAGRAPHS (B) AND (C), IT BECOMES UNMISTAKABLY CLEAR THAT
"DISCOVERY" WAS NOT MEANT TO INCLUDE THE DEVELOPMENT OF PATENTABLE
PRODUCTS.  IF "DISCOVERY" WERE SO WIDE IN SCOPE, THERE WOULD BE NO NEED
FOR THE PROVISION IN SUBPARAGRAPH (C) FOR "INCOME FROM THE SALE OF
PATENTS, FORMULAE, OR PROCESSES."  ALL OF THIS INCOME, UNDER TAXPAYERS'
READING OF "DISCOVERY," WOULD ALSO BE INCOME "RESULTING FROM  ...
DISCOVERY" WITHIN SUBPARAGRAPH (B).  TO BORROW THE HOMELY METAPHOR OF
JUDGE ALDRICH IN THE FIRST CIRCUIT, "IF THERE IS A BIG HOLE IN THE
FENCE FOR THE BIG CAT, NEED THERE BE A SMALL HOLE FOR THE SMALL ONE?" 
THE STATUTE ADMITS A REASONABLE CONSTRUCTION WHICH GIVES EFFECT TO ALL
OF ITS PROVISIONS.  IN THESE CIRCUMSTANCES WE WILL NOT ADOPT A STRAINED
READING WHICH RENDERS ONE PART A MERE REDUNDANCY.  SEE, E.G., UNITED
STATES V. MENASCHE, 348 U.S. 528, 538-539. 

TAXPAYERS ASSERT THAT IT IS THE "ORDINARY MEANING" OF "DISCOVERY"
WHICH MUST GOVERN.  WE FIND AMPLE EVIDENCE BOTH ON THE FACE OF THE
STATUTE AND, AS WE SHALL SHOW, IN ITS LEGISLATIVE HISTORY THAT A
TECHNICAL USAGE WAS INTENDED.  BUT EVEN IF WE WERE WITHOUT SUCH
EVIDENCE WE SHOULD FIND IT DIFFICULT TO BELIEVE THAT CONGRESS INTENDED
TO APPLY THE LAYMAN'S MEANING OF "DISCOVERY" TO DESCRIBE THE PRODUCTS
OF RESEARCH.  TO DO SO WOULD LEAD TO THE NECESSITY OF DRAWING A LINE
BETWEEN THINGS FOUND AND THINGS MADE, FOR IN ORDINARY PRESENT-DAY USAGE
THINGS REVEALED ARE DISCOVERIES, BUT NEW FABRICATIONS ARE INVENTIONS. 
(FN3)  IT WOULD APPEAR SENSELESS FOR CONGRESS TO ADOPT THIS USAGE, TO
PROVIDE RELIEF FOR INCOME FROM DISCOVERIES AND YET MAKE NO PROVISION
FOR INCOME FROM INVENTIONS.  PERHAPS IN THE PATENT LAW "DISCOVERY" HAS
THE UNCOMMONLY WIDE MEANING TAXPAYERS SUGGEST, BUT THE FIELDS OF
PATENTS AND TAXATION ARE EACH LORES UNTO THEMSELVES, AND THE USAGE IN
THE PATENT LAW (WHICH IS BY NO MEANS ENTIRELY IN TAXPAYERS' FAVOR)
(FN4) IS UNPERSUASIVE HERE.  ALL THE EVIDENCE IS TO THE EFFECT THAT
CONGRESS DID NOT INTEND TO INTRODUCE THE DIFFICULT DISTINCTION BETWEEN
INVENTIONS AND DISCOVERIES INTO THE EXCESS PROFITS TAX LAW. 

THE RELEVANT LEGISLATIVE HISTORY FORTIFIES THE CONCLUSIONS TO WHICH
THE WORDS OF THE STATUTE LEAD US.  THE WORD "DISCOVERY" HAS BEEN USED
FOR MANY YEARS IN THE TAX LAWS, AND HAS ALWAYS BEEN USED WITH THE
LIMITED MEANING OF THE FINDING OF MINERAL DEPOSITS.  IN THE REVENUE ACT
OF 1918, ENACTING ONE OF THE EARLIEST EXCESS PROFITS TAX LAWS, A LIMIT
WAS PLACED ON THE EXCESS PROFITS TAX ON INCOME FROM "A BONA FIDE SALE
OF MINES, OIL OR GAS WELLS, OR ANY INTEREST THEREIN, WHERE THE
PRINCIPAL VALUE OF THE PROPERTY HAS BEEN DEMONSTRATED BY PROSPECTING OR
EXPLORATION AND DISCOVERY WORK DONE BY THE TAXPAYER."  REVENUE ACT OF
1918, SEC. 337, 40 STAT. 1096.  (FN5)  AN IDENTICAL LIMITATION WAS
IMPOSED ON THE INCOME TAX LEVIED UNDER THAT ACT, (FN6) AND THE SAME
USAGE OF "DISCOVERY" OBTAINED IN THE ALLOWANCE OF DEPLETION
DEDUCTIONS.  (FN7)  THE LIMITATION ON THE INCOME TAX ON THE PROCEEDS OF
THE SALE OF MINERAL DEPOSITS WAS RE-ENACTED WITHOUT SIGNIFICANT CHANGE
IN THE REVENUE ACTS OF 1921, 1924, 1926, 1928, 1932, 1936 AND 1938. 
(FN8)  IT REMAINS IN THE INCOME TAX PROVISIONS OF THE INTERNAL REVENUE
CODE OF 1939 AS SEC. 105 AND HAS BEEN CARRIED FORWARD AS SEC. 632 OF
THE 1954 CODE.   IN EACH RE-ENACTMENT "DISCOVERY" IS LINKED WITH
"EXPLORATION" AND "PROSPECTING," AND IN EACH THE WORD IS RESTRICTIVELY
APPLIED TO EXTRACTIVE INDUSTRIES.  A CORRESPONDINGLY NARROW USE OF
"DISCOVERY" HAS CONTINUED SINCE 1918 IN THE DEPLETION ALLOWANCE
MORE THAN 30 YEARS PRECEDING THE ENACTMENT OF THE SECTION HERE AT
ISSUE, DURING WHICH TIME "DISCOVERY" WAS USED AND RE-USED IN SUCCESSIVE
TAXING STATUTES, THE WORD DEVELOPED INTO A TERM OF ART OF PRECISE AND
LIMITED MEANING. 

THE EXCESS PROFITS TAX ACT OF 1940, 54 STAT. 975, MADE SPECIFIC
MENTION OF MORE TYPES OF "ABNORMAL INCOME" QUALIFYING FOR RELIEF THAN
DID THE EARLIER EXCESS PROFITS TAX STATUTES, BUT THERE IS NO INDICATION
THAT IT WORKED ANY TRANSFORMATION IN THE MEANING OF "DISCOVERY." 
TYPES OF "ABNORMAL INCOME."  AMONG THEM WAS THE FOLLOWING, AT SEC.
721(A)(2)(C): 

"INCOME RESULTING FROM EXPLORATION, DISCOVERY, PROSPECTING, RESEARCH,
OR DEVELOPMENT OF TANGIBLE PROPERTY, PATENTS, FORMULAE, OR PROCESSES,
OR ANY COMBINATION OF THE FOREGOING, EXTENDING OVER A PERIOD OF MORE
THAN 12 MONTHS." 

THIS WAS THE FIRST TIME SPECIFIC PROVISION WAS MADE FOR INCOME FROM
INVENTION, RELIEF IN CASES OF SUCH INCOME HAVING PREVIOUSLY BEEN
OBTAINABLE, IF AT ALL, ONLY UNDER THE "GENERAL RELIEF" PROVISIONS OF
THE EARLIER ACTS.  (FN10)  IT IS INSTRUCTIVE THAT THE FORMULA
"EXPLORATION, DISCOVERY, OR PROSPECTING" WAS NOT CONSIDERED BROAD
ENOUGH TO COVER INVENTION AND THAT THE WORDS "RESEARCH" AND
"DEVELOPMENT" WERE ADDED TO COVER THAT SOURCE OF INCOME.  PLAINLY,
"DISCOVERY" RETAINED IN THE WORLD WAR II EXCESS PROFITS ACT THE LIMITED
MEANING WHICH IT HAD HAD IN THE PREVIOUS ACTS AND WHICH IT CONTINUED TO
HAVE IN THE INCOME TAX PROVISIONS OF THE THEN-CURRENT CODE.  (FN11) 

THE RELIEF PROVISIONS OF THE EXCESS PROFITS TAX ACT OF 1950, WHICH WE
HERE CONSTRUE, WERE MODELED INPART ON SEC. 721 OF THE WORLD WAR II ACT,
BUT WERE DIFFERENT IN SIGNIFICANT RESPECTS.  IN THE CLASSIFICATIONS OF
INCOME IN THE NEW SEC. 456, CONGRESS GAVE SEPARATE TREATMENT TO INCOME
FROM DISCOVERY OF MINERALS AND INCOME FROM INVENTION.  IT PROVIDED
RELIEF IN SUBPARAGRAPH (B) FOR "INCOME RESULTING FROM EXPLORATION,
DISCOVERY, OR PROSPECTING," BUT PROVIDED IN SUBPARAGRAPH (C) ONLY FOR
"INCOME FROM THE SALE OF PATENTS, FORMULAE, OR PROCESSES." 
SUBPARAGRAPH (C) DOES NOT ENCOMPASS AALL INCOME FROM INVENTIONS.  IT
DOES NOT COVER INCOME FROM THE SALE OF PRODUCTS MADE UNDER A NEW
PATENT, THE SORT OF INCOME AT ISSUE HERE.  TAXPAYERS ASSERT THAT THE
INCOME FROM THEIR INVENTIONS IS, REALISTICALLY SPEAKING, AS "ABNORMAL"
IN THEIR BUSINESSES AS THE DISCOVERY OF A NEW MINE WOULD BE IN THE
BUSINESS OF A PROSPECTOR.  THEIR INCOME IS WITHIN THE SPIRIT OF SEC.
456, THEY SAY, AND SHOULD BE HELD TO BE WITHIN THE LETTER OF
SUBPARAGRAPH (B).  IT IS CLEAR, HOWEVER, THAT CONGRESS, WHILE IT MAY
HAVE RECOGNIZED THE ABNORMAL NATURE OF THIS SORT OF INCOME, CHOSE
DELIBERATELY TO DENY RELIEF FOR IT AND TO LIMIT RELIEF IN CASES OF
RESEARCH AND DEVELOPMENT TO THAT PROVIDED IN SUBPARAGRAPH (C). 

THE RELIEF PROVISIONS OF THE WORLD WAR II ACT HAD BEEN INTENDED TO
PROVIDE "FLEXIBLE RULES," (FN12) AND THEIR APPLICATION HAD OFTEN BEEN
AN UNCERTAIN AFFAIR.  IN ADMINISTERING SEC. 721 THE COMMISSIONER OFTEN
FACED THE DIFFICULT TASK OF SEPARATING INCOME WHICH WAS THE PRODUCT OF
"RESEARCH, OR DEVELOPMENT" FROM THAT RESULTING MERELY FROM IMPROVED
MANAGEMENT OR SALES EFFORTS.  THE DIFFICULTY OF DISTINCTION LED THE TAX
COURT TO HOLD THAT THE DISTINCTION MUST BE MADE "BY EXERCISING COMMON
SENSE AND JUDGMENT," AND THAT "IT IS ENTIRELY POSSIBLE THAT THE
ALLOCATION MADE BY ONE PERSON WOULD NEVER MATCH THAT MADE BY ANOTHER." 
RAMSEY ACCESSORIES MFG. CORP. V. COMMISSIONER, 10 T.C. 482, 489. 
CONGRESS IN 1950 RECOGNIZED THE DELAY AND UNCERTAINTY CAUSED BY THE
ELEMENT OF ADMINISTRATIVE DISCRETION IN THIS AND OTHER (FN13) SECTIONS
AND SET ABOUT DRAFTING AN EXCESS PROFITS TAX LAW ON THE PRINCIPLE THAT
"SUBJECTIVE JUDGMENTS  ...  SHOULD BE AVOIDED IN THE NEW LAW."  H.R.
REP. NO. 3142, 81ST CONG., 2D SESS. 20.  THIS PRINCIPLE WAS EXPRESSLY
FOLLOWED IN THE DRAFTING OF SEC. 456.  THE SENATE COMMITTEE REPORTED ON
SEC. 456 AS FOLLOWS:    "THE EQUIVALENT PROVISION IN THE WORLD WAR II
LAW (SEC. 721) ALSO PERMITTED ADJUSTMENTS WITH REFERENCE TO CERTAIN
OTHER TYPES OF INCOME, PARTICULARLY THAT RESULTING FROM THE SALE OF
TANGIBLE PROPERTY ARISING OUT OF RESEARCH AND DEVELOPMENT WHICH
EXTENDED OVER A PERIOD OF MORE THAN 12 MONTHS.  THIS PROVISION IN THE
OLD LAW WAS A POTENTIAL LOOPHOLE OF MAJOR DIMENSIONS.  BECAUSE THERE
APPEARED TO BE NO MEANS OF RESTRICTING SUCH AN ADJUSTMENT TO TRULY
MERITORIOUS CASES OTHER THAN BY THE INTRODUCTION OF A LARGE DEGREE OF
ADMINISTRATIVE DISCRETION OF THE TYPE REQUIRED BY THE GENERAL RELIEF
CLAUSE OF THE WORLD WAR II LAW (SEC. 722), AND BECAUSE THE NEED FOR A
REALLOCATION OF SUCH INCOME SEEMED TO BE MATERIALLY LESS THAN FOR THE
OTHER CLASSES OF INCOME DESCRIBED ABOVE, THE BILL OMITS THIS ITEM FROM
THE LIST OF ABNORMAL TYPES OF INCOME FOR WHICH A REALLOCATION CAN BE
MADE."  S. REP. NO. 2679, 81ST CONG., 2D SESS. 14. 

THE HOUSE COMMITTEE REPORT WAS VIRTUALLY IDENTICAL.  H.R. REP. NO.
3142, 81ST CONG., 2D SESS. 13. 

TAXPAYERS RECOGNIZE, AS THEY MUST, THAT CONGRESS INTENDED ITS CHANGE
IN LANGUAGE TO LIMIT THE KINDS OF INCOME ELIGIBLE FOR RELIEF.  THEY
SAY, HOWEVER, THAT NOT ALL INCOME FROM RESEARCH AND DEVELOPMENT WAS
EXCLUDED.  THAT WHICH COMES FROM INVENTIONS NOT MERELY PATENTABLE BUT
ALSO SUFFICIENTLY REVOLUTIONARY TO BE CALLED "GENUINE DISCOVERIES" IS
STILL WITHIN THE PROTECTION OF SEC. 456.  WE FIND IT IMPOSSIBLE TO
BELIEVE THAT AN AMENDMENT DESIGNED TO ELIMINATE UNCERTAINTY AND
ADMINISTRATIVE DISCRETION WOULD INTRODUCE INTO THE LAW - WITHOUT A
CONGRESSIONAL WORD OF WARNING OR EXPLANATION - A DISTINCTION AS VAGUE,
AS DEPENDENT UPON NUANCES OF SCIENTIFIC OPINION, AND AS UNPRECEDENTED
AS THAT URGED BY TAXPAYERS. 

                      II. 

TAXPAYERS HAVE ANOTHER ARGUMENT, WHICH THE FIRST CIRCUIT REJECTED AND
WHICH THE SEVENTH CIRCUIT DID NOT REACH.  PARAGRAPH (1) OF SEC. 456(A)
DEFINES "ABNORMAL INCOME" AS "INCOME OF ANY CLASS DESCRIBED IN
PARAGRAPH (2)" WHICH MEETS CERTAIN REQUIREMENTS.  PARAGRAPH (2) LISTS
FOUR CLASSES OF INCOME AND PROVIDES IN ITS CONCLUDING SENTENCE: 

"THE CLASSIFICATION OF INCOME OF ANY CLASS NOT DESCRIBED IN
SUBPARAGRAPHS (A) TO (D), INCLUSIVE, SHALL BE SUBJECT TO REGULATIONS
PRESCRIBED BY THE SECRETARY." 

TAXPAYERS ARGUE THAT EVEN IF THE INCOME HERE AT ISSUE WAS NOT
PROVIDED FOR UNDER ANY OF THE SUBPARAGRAPHS OF PARAGRAPH (2), IT IS
NEVERTHELESS INCLUDED WITHIN THIS FINAL SENTENCE AND IS HENCE ELIGIBLE
FOR RELIEF. 

WE NEED NOT DECIDE THE PRECISE EFFECT OF THE SENTENCE RELIED ON.  IN
LIGHT OF THE CLEAR PURPOSE OF CONGRESS IN ENACTING SEC. 456 TO CUT DOWN
NOT ONLY THE AMOUNT OF ADMINISTRATIVE DISCRETION WHICH HAD PREVAILED
UNDER THE PREDECESSOR SECTION BUT ALSO THE SCOPE OF AVAILABLE RELIEF,
THE POWER OF THE SECRETARY TO EXTEND RELIEF FAR BEYOND THE FOUR CORNERS
OF THE STATUTE MAY BE DOUBTED.  (FN14)  IT IS SUFFICIENT TO NOTE THAT,
UNLIKE ITS PREDECESSOR (WHICH MADE RELIEF AVAILABLE FOR ALL "ABNORMAL
INCOME," WHETHER OR NOT SPECIFIED IN A PARTICULAR CLASS), (FN15) SEC.
456 APPLIES ONLY TO THOSE CLASSES SPECIFIED IN SEC. 456(A)(2).  SECTION
456 DOES NOT APPLY IN TERMS TO ALL ABNORMAL INCOME AND CONTAINS NO
INDICATION THAT THE SECRETARY SHOULD CREATE ADMINISTRATIVE
CLASSIFICATIONS EMBRACING ALL SUCH INCOME.  AND EVEN IF THE SENTENCE
RELIED ON GIVES THE SECRETARY POWER TO EXPAND THE CLASSES OF ABNORMAL
INCOME SOMEWHAT BEYOND THE FOUR ENUMERATED IN THE STATUTE, HE HAS
CLEARLY NOT DONE SO HERE.  THE REGULATIONS (FN16) SPECIFICALLY PROVIDE
THAT "INCOME FROM THE SALE OF TANGIBLE PROPERTY ARISING OUT OF RESEARCH
AND DEVELOPMENT WHICH EXTENDED OVER A PERIOD OF MORE THAN 12 MONTHS IS
NOT INCLUDED IN THE LIST OF ABNORMAL TYPES OF INCOME TO WHICH SECTION
456 IS APPLICABLE, AND SUCH INCOME MAY NOT CONSTITUTE A CLASS OF INCOME
FOR PURPOSES OF THAT SECTION."  THIS SPECIFIC EXCLUSION IS CLEARLY IN
FURTHERANCE OF THE PURPOSE OF CONGRESS IN DELETING "RESEARCH" AND
"DEVELOPMENT" INCOME FROM ITS CLASSIFICATION OF ABNORMAL INCOME.  THE
COMMISSIONER, EFFECTING THE WILL OF CONGRESS, HAS BARRED RELIEF FOR THE
TYPE OF INCOME HERE AT ISSUE. 

THE LAST SENTENCE OF THE REGULATION, ON WHICH TAXPAYERS ALSO RELY,
DOES NOT AID THEM.  IT PROVIDES MERELY THAT "RESEARCH" AND
"DEVELOPMENT" INCOME IS ELIGIBLE FOR RELIEF IF IT IS PROPERLY
INCLUDIBLE IN A CLASS OF INCOME TO WHICH SEC. 456 OTHERWISE APPLIES. 
AS WE HAVE HELD, HOWEVER, TAXPAYERS' INCOME DOES NOT FALL WITHIN ANY
SUCH CLASS. 

THEREFORE, THE JUDGMENT OF THE COURT OF APPEALS FOR THE SEVENTH
CIRCUIT MUST BE REVERSED AND THE JUDGMENT OF THE COURT OF APPEALS FOR
THE FIRST CIRCUIT AFFIRMED.  IT IS SO ORDERED. 

FN1  SEE H.R. REP. NO. 3142, 81ST CONG., 2D SESS. 2; S. REP. NO.
2679, 81ST CONG., 2D SESS. 2. 

FN2  SECTION 456(A) PROVIDES IN PART: 

"(A)  DEFINITIONS.  - FOR THE PURPOSES OF THIS SECTION: 

"(1)  ABNORMAL INCOME.  - THE TERM 'ABNORMAL INCOME' MEANS INCOME OF
ANY CLASS DESCRIBED IN PARAGRAPH (2) INCLUDIBLE IN THE GROSS INCOME OF
THE TAXPAYER FOR ANY TAXABLE YEAR UNDER THIS SUBCHAPTER IF IT IS
ABNORMAL FOR THE TAXPAYER TO DERIVE INCOME OF SUCH CLASS, OR, IF THE
TAXPAYER NORMALLY DERIVES INCOME OF SUCH CLASS BUT THE AMOUNT OF SUCH
INCOME OF SUCH CLASS INCLUDIBLE IN THE GROSS INCOME OF THE TAXABLE YEAR
IS IN EXCESS OF 115 PER CENTUM OF THE AVERAGE AMOUNT OF THE GROSS
INCOME OF THE SAME CLASS FOR THE FOUR PREVIOUS TAXABLE YEARS, OR, IF
THE TAXPAYER WAS NOT IN EXISTENCE FOR FOUR PREVIOUS TAXABLE YEARS, THE
TAXABLE YEARS DURING WHICH THE TAXPAYER WAS IN EXISTENCE. 

"(2)  SEPARATE CLASSES OF INCOME.  - EACH OF THE FOLLOWING
SUBPARAGRAPHS SHALL BE HELD TO DESCRIBE A SEPARATE CLASS OF INCOME: 

"(A)  INCOME ARISING OUT OF A CLAIM, AWARD, JUDGMENT, OR DECREE, OR
INTEREST ON ANY OF THE FOREGOING; OR: 

"(B)  INCOME RESULTING FROM EXPLORATION, DISCOVERY, OR PROSPECTING,
OR ANY COMBINATION OF THE FOREGOING, EXTENDING OVER A PERIOD OF MORE
THAN 12 MONTHS; OR: 

"(C)  INCOME FROM THE SALE OF PATENTS, FORMULAE, OR PROCESSES, OR ANY
COMBINATION OF THE FOREGOING, DEVELOPED OVER A PERIOD OF MORE THAN 12
MONTHS; OR: 

"(D)  INCOME INCLUDIBLE IN GROSS INCOME FOR THE TAXABLE YEAR RATHER
THAN FOR A DIFFERENT TAXABLE YEAR BY REASON OF A CHANGE IN THE
TAXPAYER'S METHOD OF ACCOUNTING. 

"ALL THE INCOME WHICH IS CLASSIFIABLE IN MORE THAN ONE OF SUCH
SUBPARAGRAPHS SHALL BE CLASSIFIED UNDER THE ONE WHICH THE TAXPAYER
IRREVOCABLY ELECTS.  THE CLASSIFICATION OF INCOME OF ANY CLASS NOT
DESCRIBED IN SUBPARAGRAPHS (A) TO (D), INCLUSIVE, SHALL BE SUBJECT TO
REGULATIONS PRESCRIBED BY THE SECRETARY." 

FN3  IN LAY TERMS, POLAROID'S PHOTOGRAPHIC EQUIPMENT AND SEARLE'S
DRUGS ARE PROBABLY BETTER CALLED INVENTIONS THAN DISCOVERIES. 
WEBSTER'S NEW INTERNATIONAL DICTIONARY, UNABRIDGED (2D ED.)  P. 745,
MAKES THIS DISTINCTION:  "ONE DISCOVERS WHAT EXISTED BEFORE, BUT HAD
REMAINED UNKNOWN; ONE INVENTS BY FORMING COMBINATIONS WHICH ARE
ENTIRELY NEW, OR WHICH ATTAIN THEIR END BY MEANS UNKNOWN BEFORE; AS,
COLUMBUS DISCOVERED AMERICA; NEWTON DISCOVERED THE LAW OF GRAVITATION;
EDISON INVENTED THE PHONOGRAPH  ...  ." 

FN4  THE UNITED STATES CONSTITUTION, ART. I, SEC. 8, CL. 8 GIVES
CONGRESS THE POWER TO SECURE TO "INVENTORS THE EXCLUSIVE RIGHT TO THEIR
...  DISCOVERIES."  WHILE THE TERMS "DISCOVER" AND "DISCOVERY" ARE
USED THROUGHOUT THE PATENT STATUTES, THEY SEEM GENERALLY TO APPEAR WITH
"INVENT" AND "INVENTION" AS IF THE TERMS HAVE SEPARATE MEANINGS.  SEE,
E.G., 35 U.S.C. SEC. 101:  "WHOEVER INVENTS OR DISCOVERS ANY NEW AND
USEFUL PROCESS, MACHINE, MANUFACTURE, OR COMPOSITION OF MATTER  ...
MAY OBTAIN A PATENT THEREFOR  ...  ."  AND SEE DOLBEAR V. AMERICAN BELL
TELEPHONE CO. (TELEPHONE CASES), 126 U.S. 1, 532-533. 

FN5  THIS SECTION WAS RE-ENACTED BY THE REVENUE ACT OF 1921, SEC.
337, 42 STAT. 277. 

FN6  REVENUE ACT OF 1918, SEC. 211(B), 40 STAT. 1064. 

FN7  REVENUE ACT OF 1918, SECS. 214(A)(10), 234(A)(9), 40 STAT. 1067,
1078, PROVIDING "THAT IN THE CASE OF MINES, OIL AND GAS WELLS,
DISCOVERED BY THE TAXPAYER  ...  WHERE THE FAIR MARKET VALUE OF THE
PROPERTY IS MATERIALLY DISPROPORTIONATE TO THE COST, THE DEPLETION
ALLOWANCE SHALL BE BASED UPON THE FAIR MARKET VALUE OF THE PROPERTY AT
THE DATE OF DISCOVERY  ...  ." 

FN8  REVENUE ACT OF 1921, SEC. 211(B), 42 STAT. 237; REVENUE ACT OF
1924, SEC. 211(B), 43 STAT. 267; REVENUE ACT OF 1926, SEC. 211(B), 44
STAT. 23; REVENUE ACT OF 1928, SEC. 102(A), 45 STAT. 812; REVENUE ACT
OF 1932, SEC. 102(A), 47 STAT. 192; REVENUE ACT OF 1936, SEC. 105, 49
STAT. 1678; REVENUE ACT OF 1938, SEC. 105, 52 STAT. 484. 

FN9  REVENUE ACT OF 1921, SECS. 214(A)(10), 234(A)(9), 42 STAT. 241,
256; REVENUE ACT OF 1924, SEC. 204(C), 43 STAT. 260; REVENUE ACT OF
1926, SEC. 204(C)(1), 44 STAT. 16; REVENUE ACT OF 1928, SEC. 114(B)(2),
45 STAT. 821; REVENUE ACT OF 1932, SEC. 114(B)(2), 47 STAT. 202;
REVENUE ACT OF 1934, SEC. 114(B)(2), 48 STAT. 710; REVENUE ACT OF 1936,
SEC. 114(B)(2), 49 STAT. 1686; REVENUE ACT OF 1938, SEC. 114(B)(2), 52
STAT. 495. 

FN10  SECTION 327(D) OF THE REVENUE ACT OF 1918, 40 STAT. 1093, GAVE
THE COMMISSIONER POWER TO GRANT RELIEF IN ANY CASE IN WHICH "THE TAX
...  WOULD, OWING TO ABNORMAL CONDITIONS AFFECTING THE CAPITAL OR
INCOME OF THE CORPORATION, WORK UPON THE CORPORATION AN EXCEPTIONAL
HARDSHIP  ...  ."  SECTION 721 OF THE WORLD WAR II LAW CLASSIFIED
SPECIFIC TYPES OF ABNORMAL INCOME FOR PURPOSES OF COMPUTING THE TAX,
AND, WHILE IT PROVIDED RELIEF FOR ALL ABNORMAL INCOME OF WHATEVER
CLASS, WAS NOT CONSIDERED A "GENERAL RELIEF" SECTION. 

FN11  I.R.C. OF 1939, SECS. 105, 114(B)(2).  IT WAS EXPRESSLY
PROVIDED BY SEC. 728 OF THE WORLD WAR II EXCESS PROFITS TAX STATUTE, 54
STAT. 989, THAT THE WORDS USED IN THAT STATUTE SHOULD HAVE THE SAME
MEANING AS WHEN USED IN THE INCOME TAX CHAPTER OF THE CODE. 

FN12  H.R. REP. NO. 146, 77TH CONG., 1ST SESS. 2. 

FN13  THE "GENERAL RELIEF" SECTION OF THE WORLD WAR II ACT, SEC. 722,
54 STAT. 986, AS AMENDED, 55 STAT. 23, 701, 56 STAT. 914, 57 STAT. 56,
601, 58 STAT. 55, PROVIDED FOR ADJUSTMENTS IN THE COMPUTATION OF BASE
PERIOD INCOME IF THE TAXPAYER ESTABLISHED, AMONG OTHER THINGS, "WHAT
WOULD BE A FAIR AND JUST AMOUNT REPRESENTING NORMAL EARNINGS" DURING
THE BASE PERIOD. 

FN14  IN FACT, THE COMMITTEE REPORTS STATE THAT "ADJUSTMENTS  ...
UNDER SEC. 456 ARE LIMITED TO INCOME ARISING OUT OF" THE FOUR CLASSES
SPECIFIED IN SUBPARAGRAPHS (A) THROUGH (D).  H.R. REP. NO. 3142, 81ST
CONG., 2D SESS. 13; S. REP. NO. 2679, 81ST CONG., 2D SESS. 14. 

FN15  EXCESS PROFITS TAX ACT OF 1940, SEC. 721, 54 STAT. 986, AS
AMENDED, 55 STAT. 21.  SECTION 721(A)(1) DEFINES "ABNORMAL INCOME" AS
"INCOME OF ANY CLASS INCLUDIBLE IN THE GROSS INCOME OF THE TAXPAYER
...  ." 

FN16  TREAS. REG. 130, SEC. 40.456-2(B)(1951), AS AMENDED, T.D. 6026,
1953-2 CUM. BULL.  235: "OTHER INCOME, NOT WITHIN A CLASS DESCRIBED IN
SUBPARAGRAPHS (A)-(D) OF SECTION 456(A)(2), TO WHICH SECTION 456 IS
APPLICABLE MAY BE GROUPED BY THE TAXPAYER, SUBJECT TO APPROVAL BY THE
COMMISSIONER ON THE EXAMINATION OF THE TAXPAYER'S RETURN, IN SUCH
CLASSES SIMILAR TO THOSE SPECIFIED IN SUBPARAGRAPHS (A)-(D) OF SECTION
456(A)(2) AS ARE REASONABLE IN A BUSINESS OF THE TYPE WHICH THE
TAXPAYER CONDUCTS, AND AS ARE APPROPRIATE IN THE LIGHT OF THE
TAXPAYER'S BUSINESS EXPERIENCE AND ACCOUNTING PRACTICE.  INCOME FROM
THE SALE OF TANGIBLE PROPERTY ARISING OUT OF RESEARCH AND DEVELOPMENT
WHICH EXTENDED OVER A PERIOD OF MORE THAN 12 MONTHS IS NOT INCLUDED IN
THE LIST OF ABNORMAL TYPES OF INCOME TO WHICH SECTION 456 IS
APPLICABLE, AND SUCH INCOME MAY NOT CONSTITUTE A CLASS OF INCOME FOR
PURPOSES OF THAT SECTION.  HOWEVER, SECTION 456 IS APPLICABLE TO SUCH
INCOME IF THE INCOME IS OTHERWISE PROPERLY INCLUDIBLE WITHIN A CLASS OF
INCOME TO WHICH SUCH SECTION IS APPLICABLE FOR EXAMPLE, THE CLASS
DESCRIBED IN SECTION 456(A)(2)(D)." 
..END :









CIVIL AERONAUTICS BOARD V. DELTA AIR LINES, INC. 367 U.S. 316 


NO. 492.  ARGUED APRIL 27, 1961 - DECIDED JUNE 12, 1961* - 280 F.2D 43,
AFFIRMED. 

*TOGETHER WITH NO. 493, LAKE CENTRAL AIRLINES, INC., V. DELTA AIR
LINES, INC., ALSO ON CERTIORARI TO THE SAME COURT. 


ONCE A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY GRANTED BY THE
CIVIL AERONAUTICS BOARD TO AN AIR LINE HAS BECOME EFFECTIVE UNDER SEC.
401(F) OF THE FEDERAL AVIATION ACT OF 1958, THE BOARD MAY NOT ALTER IT
WITHOUT THE FORMAL NOTICE AND HEARING REQUIRED BY SEC. 401(G) - EVEN
THOUGH THE BOARD, AT THE TIME OF CERTIFICATION, HAS PURPORTED TO
RESERVE JURISDICTION TO MAKE SUMMARY MODIFICATIONS PURSUANT TO
PETITIONS FOR RECONSIDERATION AND SUCH PETITIONS HAVE BEEN FILED WITHIN
THE TIME PRESCRIBED BY THE BOARD'S REGULATIONS AND BEFORE THE EFFECTIVE
DATE OF THE CERTIFICATE.  PP. 317-334. 

(A)  CONGRESS INTENDED THAT CERTIFICATED AIR LINES SHOULD ENJOY
"SECURITY OF ROUTE," SO THAT THEY MIGHT INVEST THE CONSIDERABLE SUMS
REQUIRED TO SUPPORT THEIR OPERATIONS, AND IT PROVIDED IN SEC. 401(G)
CERTAIN MINIMUM PROTECTIONS BEFORE A CERTIFICATED OPERATION COULD BE
CANCELLED.  PP. 321-325. 

(B)  NOTWITHSTANDING THE GENERAL PRINCIPLE THAT AN ADMINISTRATIVE
ORDER IS NOT "FINAL" FOR THE PURPOSES OF JUDICIAL REVIEW UNTIL
OUTSTANDING PETITIONS FOR RECONSIDERATION HAVE BEEN DISPOSED OF, THE
BOARD MAY NOT, BY RESERVING JURISDICTION TO MAKE SUMMARY MODIFICATIONS
PURSUANT TO PETITIONS FOR RECONSIDERATION, DO INDIRECTLY WHAT CONGRESS
HAS FORBIDDEN IT TO DO DIRECTLY.  PP. 325-334. 

CIVIL AERONAUTICS BOARD V. DELTA AIR LINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE POWER OF THE CIVIL AERONAUTICS BOARD TO ALTER
A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, GRANTED TO
RESPONDENT DELTA AIR LINES, AFTER THAT CERTIFICATE HAD BECOME EFFECTIVE
UNDER SEC. 401(F) OF THE FEDERAL AVIATION ACT OF 1958.  72 STAT. 731,
755, 49 U.S.C. SEC. 1371(F).  (FN1)  THE ADMINISTRATIVE PROCEEDINGS
FROM WHICH THE PRESENT DISPUTE ARISES DATE BACK TO MAY 1955, AND
INVOLVE CONSIDERATION BY THE BOARD OF A NUMBER OF APPLICATIONS FOR NEW
SERVICE BETWEEN CITIES LOCATED IN AN AREA EXTENDING FROM THE GREAT
LAKES TO FLORIDA.  THE BOARD DIVIDED THE PROCEEDINGS INTO TWO GENERAL
CATEGORIES, CONSOLIDATING THE APPLICATIONS FOR LONG-HAUL SERVICE IN THE
GREAT LAKES-SOUTHEAST SERVICE CASE AND THOSE FOR SHORT-HAUL FLIGHTS IN
THE GREAT LAKES LOCAL SERVICE INVESTIGATION CASE.  IN ORDER TO PROTECT
FULLY THE INTERESTS OF LOCAL SERVICE CARRIERS, THE BOARD ALLOWED THESE
CARRIERS, INCLUDING PETITIONER LAKE CENTRAL AIRLINES, TO INTERVENE IN
THE HEARINGS ON THE LONG-HAUL APPLICATIONS. 

AT THE CONCLUSION OF THE GREAT LAKES-SOUTHEAST SERVICE CASE A NUMBER
OF AWARDS WERE MADE, INCLUDING ONE PERMITTING DELTA TO EXTEND AN
EXISTING ROUTE NORTHWEST SO AS TO PROVIDE SERVICE FROM MIAMI TO DETROIT
AND TO ADD INDIANAPOLIS AND LOUISVILLE AS INTERMEDIATE POINTS ON ITS
EXISTING CHICAGO-TO-MIAMI ROUTE.  CERTAIN RESTRICTIONS FOR THE
PROTECTION OF LOCAL CARRIERS WERE IMPOSED ON MANY OF THE AWARDS, THESE
RESTRICTIONS GENERALLY PROVIDING THAT FLIGHTS BETWEEN SPECIFIED
INTERMEDIATE CITIES HAD TO ORIGINATE AT OR BEYOND GIVEN DISTANT
POINTS.  THE STATED PURPOSE OF THESE RESTRICTIONS WAS TO PREVENT THE
LONG-HAUL CARRIER FROM DUPLICATING SO-CALLED "TURN-AROUND" SERVICE
ALREADY PROVIDED BY EXISTING LOCAL CARRIERS.  ONE SUCH RESTRICTION WAS
APPLIED TO DELTA'S RUN BETWEEN DETROIT AND VARIOUS LOCATIONS IN OHIO
BUT, BY AND LARGE, DELTA'S AWARD WAS FREE OF PROTECTIVE LIMITATIONS. 

THE BOARD'S ORDER ISSUED ON SEPTEMBER 30, 1958, AND IT SPECIFIED THAT
DELTA'S CERTIFICATE WAS TO BECOME EFFECTIVE ON NOVEMBER 29, 1958,
UNLESS POSTPONED BY THE BOARD PRIOR TO THAT DATE.  SHORTLY THEREAFTER,
WITHIN TIME LIMITS SET BY THE BOARD, (FN2) NUMEROUS PETITIONS FOR
RECONSIDERATION WERE FILED, INCLUDING ONE BY LAKE CENTRAL PROTESTING
THE BREADTH OF DELTA'S CERTIFICATE.  LAKE CENTRAL REQUESTED THAT, IF
THE BOARD SHOULD BE UNABLE TO DECIDE ITS PETITION FOR RECONSIDERATION
BEFORE NOVEMBER 29, THE EFFECTIVE DATE OF THE CERTIFICATE BE PUT OFF. 
ON NOVEMBER 28, ONE DAY BEFORE DELTA'S CERTIFICATE WAS TO BECOME
EFFECTIVE, THE BOARD ISSUED A LENGTHY MEMORANDUM AND ORDER, WHICH
STATED IN SUBSTANCE THAT THE REQUESTS FOR STAYS, WITH ONE IMMATERIAL
EXCEPTION, WERE DENIED, BUT THAT JUDGMENT ON THE MERITS OF THE
PETITIONS FOR RECONSIDERATION WOULD BE RESERVED.  THE BOARD EXPLAINED
THAT THE PARTIES HAD NOT MADE A SUFFICIENT SHOWING OF ERROR TO JUSTIFY
POSTPONEMENTS AND THAT, IN VIEW OF THE ADVENT OF THE PEAK WINTER
SEASON, FURTHER DELAY WOULD BE PARTICULARLY INAPPROPRIATE; THE BOARD
THEN SAID: 

"TO THE EXTENT THAT WE HAVE CONSIDERED THE PETITIONS FOR
RECONSIDERATION IN THE PRESENT ORDER WE HAVE DONE SO ONLY FOR THE
PURPOSES OF ASSESSING THE PROBABILITY OF ERROR IN OUR ORIGINAL
DECISION.  WE FEEL THAT SUCH ACTION IS NECESSARY TO A FAIR
CONSIDERATION OF THE STAY REQUESTS, AND IS IN NO WAY PREJUDICIAL TO THE
LEGAL RIGHTS OF THOSE PARTIES SEEKING RECONSIDERATION.  NOTHING IN THE
PRESENT ORDER FORECLOSES THE BOARD FROM FULL AND COMPLETE CONSIDERATION
OF THE PENDING PETITIONS FOR RECONSIDERATION ON THEIR MERITS." 

FOR REASONS NOT PRESENTLY PERTINENT, DELTA'S CERTIFICATE BECAME
EFFECTIVE ON DECEMBER 5, (FN3) RATHER THAN NOVEMBER 29, 1958, AND DELTA
COMMENCED ITS NEWLY AUTHORIZED OPERATIONS SHORTLY THEREAFTER.  ON MAY
7, 1959, THE BOARD ISSUED A NEW ORDER DISPOSING OF THE STILL-PENDING
PETITIONS FOR RECONSIDERATION.  BY THIS ORDER, THE BOARD AMENDED
DELTA'S CERTIFICATE IN RESPONSE TO THE RESTRICTIONS PROPOSED BY LAKE
CENTRAL.  SPECIFICALLY, THE BOARD BARRED DELTA'S OPERATIONS BETWEEN TEN
PAIRS OF INTERMEDIATE CITIES UNLESS THE FLIGHTS INITIATED AT ATLANTA OR
POINTS FARTHER SOUTH; THE EFFECT OF THIS ORDER WAS TO BAR CERTAIN
FLIGHTS DELTA WAS THEN OPERATING.  EVEN THEN, THE BOARD'S ACTION WAS
NOT FINAL; THE BOARD RESERVED THE POWER TO LIFT THESE RESTRICTIONS
PENDING THE OUTCOME OF THE GREAT LAKES LOCAL SERVICE CASE.  (FN4)  THE
BOARD'S DISPOSITION OF THE PETITIONS WAS TAKEN SUMMARILY, WITHOUT
FORMAL NOTICE TO THE PARTIES OR THE OPPORTUNITY FOR A HEARING PRIOR TO
DECISION. 

DELTA SOUGHT REVIEW OF THIS ORDER BEFORE THE BOARD, CHALLENGING THE
BOARD'S POWER TO CHANGE THE TERMS OF ITS CERTIFICATE AFTER THE
EFFECTIVE DATE THEREOF WITHOUT NOTICE OR HEARING.  THE BOARD OVERRULED
DELTA'S OBJECTION, STATING THAT:  "WE BELIEVE WE HAVE SUCH POWER, AND
WE HAVE EXERCISED IT IN THE PAST.  MOREOVER, THERE IS NO SHOWING, AND
WE ARE UNABLE TO CONCLUDE, THAT ANY SIGNIFICANT ADVERSE EFFECT WILL
RESULT TO EITHER DELTA OR THE PUBLIC FROM OBSERVANCE OF THE CONDITIONS
HERE INVOLVED."  ON REVIEW IN THE COURT OF APPEALS FOR THE SECOND
CIRCUIT, HOWEVER, THE BOARD'S ORDER WAS OVERTURNED, THE COURT REASONING
THAT CONGRESS HAD MADE NOTICE AND HEARING A PREREQUISITE TO THE
EXERCISE OF THE BOARD'S POWER TO CHANGE AN EXISTING CERTIFICATE.  DELTA
AIR LINES, INC., V. CIVIL AERONAUTICS BOARD, 280 F.2D 43. 

THE ISSUE IN THIS CASE IS NARROW AND CAN BE STATED BRIEFLY:  HAS
CONGRESS AUTHORIZED THE BOARD TO ALTER, WITHOUT FORMAL NOTICE OR
HEARING, A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ONCE THAT
CERTIFICATE HAS GONE INTO EFFECT?  IF NOT, SHOULD IT MAKE ANY
DIFFERENCE THAT THE BOARD HAS PURPORTED TO RESERVE JURISDICTION PRIOR
TO CERTIFICATION TO MAKE SUMMARY MODIFICATIONS PURSUANT TO PETITIONS
FOR RECONSIDERATION?  WE THINK THAT BOTH THESE QUESTIONS MUST BE
ANSWERED IN THE NEGATIVE. 

WHENEVER A QUESTION CONCERNING ADMINISTRATIVE, OR JUDICIAL,
RECONSIDERATION ARISES, TWO OPPOSING POLICIES IMMEDIATELY DEMAND
RECOGNITION:  THE DESIRABILITY OF FINALITY, ON THE ONE HAND, AND THE
PUBLIC INTEREST IN REACHING WHAT, ULTIMATELY, APPEARS TO BE THE RIGHT
RESULT ON THE OTHER.  (FN5) SINCE THESE POLICIES ARE IN TENSION, IT IS
NECESSARY TO REACH A COMPROMISE IN EACH CASE AND PETITIONERS HAVE
ARGUED AT LENGTH THAT THE BOARD'S PRESENT PROCEDURE IS A HAPPY
RESOLUTION OF CONFLICTING INTERESTS.  HOWEVER, THE FACT IS THAT THE
BOARD IS ENTIRELY A CREATURE OF CONGRESS AND THE DETERMINATIVE QUESTION
IS NOT WHAT THE BOARD THINKS IT SHOULD DO BUT WHAT CONGRESS HAS SAID IT
CAN DO.  SEE UNITED STATES V. SEATRAIN LINES, 329 U.S. 424, 433.  CF.
DELTA AIR LINES V. SUMMERFIELD, 347 U.S. 74, 79-80.  THIS PROPOSITION
BECOMES CLEAR BEYOND QUESTION WHEN IT IS NOTED THAT CONGRESS HAS BEEN
ANYTHING BUT INATTENTIVE TO THIS ISSUE IN THE ACTS GOVERNING THE
VARIOUS ADMINISTRATIVE AGENCIES.  A REVIEW OF THESE STATUTES REVEALS A
WIDE VARIETY OF DETAILED PROVISIONS CONCERNING RECONSIDERATION, EACH
ONE ENACTED IN AN ATTEMPT TO TAILOR THE AGENCY'S DISCRETION TO THE
PARTICULAR PROBLEMS IN THE AREA.  (FN6)  IN THIS RESPECT, THE FEDERAL
AVIATION ACT IS NO EXCEPTION SINCE, IN SEC. 401(F) AND (G) OF THE ACT,
CONGRESS HAS STATED THE LIMITS OF THE BOARD'S POWER TO RECONSIDER IN
UNEQUIVOCAL TERMS.  SECTION 401(F) PROVIDES THAT "EACH CERTIFICATE
SHALL BE EFFECTIVE FROM THE DATE SPECIFIED THEREIN, AND SHALL CONTINUE
IN EFFECT UNTIL SUSPENDED OR REVOKED AS HEREINAFTER PROVIDED."  THE
PHRASE "AS HEREINAFTER PROVIDED" REFERS TO SEC. 401(G), WHICH STATES: 

"AUTHORITY TO MODIFY, SUSPEND, OR REVOKE 

"(G)  THE BOARD UPON PETITION OR COMPLAINT OR UPON ITS OWN
INITIATIVE, AFTER NOTICE AND HEARINGS, MAY ALTER, AMEND, MODIFY, OR
SUSPEND ANY SUCH CERTIFICATE, IN WHOLE OR IN PART, IF THE PUBLIC
CONVENIENCE AND NECESSITY SO REQUIRE, OR MAY REVOKE ANY SUCH
CERTIFICATE, IN WHOLE OR IN PART, FOR INTENTIONAL FAILURE TO COMPLY
WITH ANY PROVISION OF THIS TITLE OR ANY ORDER, RULE, OR REGULATION
ISSUED HEREUNDER OR ANY TERM, CONDITION, OR LIMITATION OF SUCH
CERTIFICATE:  PROVIDED, THAT NO SUCH CERTIFICATE SHALL BE REVOKED
UNLESS THE HOLDER THEREOF FAILS TO COMPLY, WITHIN A REASONABLE TIME TO
BE FIXED BY THE BOARD, WITH AN ORDER OF THE BOARD COMMANDING OBEDIENCE
TO THE PROVISION, OR TO THE ORDER (OTHER THAN AN ORDER ISSUED IN
ACCORDANCE WITH THIS PROVISO), RULE, REGULATION, TERM, CONDITION, OR
LIMITATION FOUND BY THE BOARD TO HAVE BEEN VIOLATED.  ANY INTERESTED
PERSON MAY FILE WITH THE BOARD A PROTEST OR MEMORANDUM IN SUPPORT OF OR
IN OPPOSITION TO THE ALTERATION, AMENDMENT, MODIFICATION, SUSPENSION,
OR REVOCATION OF THE CERTIFICATE." 

THIS LANGUAGE REPRESENTS TO US AN ATTEMPT BY CONGRESS TO GIVE THE
BOARD COMPREHENSIVE INSTRUCTIONS TO MEET ALL CONTINGENCIES AND THE
BOARD'S DUTY IS TO FOLLOW THESE INSTRUCTIONS, (FN7) PARTICULARLY IN
LIGHT OF THE FACT THAT OBEDIENCE THERETO RAISES NO SUBSTANTIAL
OBSTACLES.  IT IS TRUE, OF COURSE, THAT STATUTORY LANGUAGE NECESSARILY
DERIVES MUCH OF ITS MEANING FROM THE SURROUNDING CIRCUMSTANCES. 
HOWEVER, WE THINK THAT, WHILE THERE IS NO LEGISLATIVE HISTORY DIRECTLY
ON POINT, THE BACKGROUND OF THE AVIATION ACT STRONGLY SUPPORTS WHAT WE
BELIEVE TO BE THE PLAIN MEANING OF SEC. 401(F) AND (G).  IT IS CLEAR
FROM THE STATEMENTS OF THE SUPPORTERS OF THE PREDECESSOR OF THE
AVIATION ACT - THE CIVIL AERONAUTICS ACT OF 1938 - THAT CONGRESS WAS
VITALLY CONCERNED WITH WHAT HAS BEEN CALLED "SECURITY OF ROUTE" - I.E.,
PROVIDING ASSURANCE TO THE CARRIER THAT ITS INVESTMENT IN OPERATIONS
WOULD BE PROTECTED INSOFAR AS REASONABLY POSSIBLE.  (FN8)  AND THERE IS
NO OTHER EXPLANATION BUT THAT CONGRESS DELIMITED THE BOARD'S POWER TO
RECONSIDER ITS AWARDS WITH PRECISELY THIS FACTOR IN MIND; HENCE THE
LANGUAGE THAT A CERTIFICATE "SHALL BE EFFECTIVE  ...  UNTIL SUSPENDED
OR REVOKED AS HEREINAFTER PROVIDED", LANGUAGE WHICH IS ABSENT FROM
SEVERAL OF THE ACTS TO WHICH REFERENCE HAS BEEN MADE.  THUS, THE
STRUCTURE OF THE STATUTE, WHEN CONSIDERED IN LIGHT OF THE FACTOR
PERSUADING CONGRESS, INDICATES TO US THAT THE CRITICAL DATE IN THE MIND
OF CONGRESS WAS THE DATE ON WHICH THE CARRIER COMMENCED OPERATIONS,
WITH THE CONCOMITANT INVESTMENT IN FACILITIES AND PERSONNEL, NOT THE
DATE THAT ABSTRACT LEGAL ANALYSIS MIGHT INDICATE AS THE "FINAL" DATE. 
IN OTHER WORDS, IT SEEMS CLEAR TO US THAT CONGRESS WAS RELATIVELY
INDIFFERENT TO THE FLUCTUATIONS AN AWARD MIGHT UNDERGO PRIOR TO THE
TIME IT AFFECTED PRACTICAL RELATIONSHIPS, BUT THAT CONGRESS WAS VITALLY
CONCERNED WITH ITS SECURITY AFTER THE WHEELS HAD BEEN SET IN MOTION. 
IN LIGHT OF THIS, WE THINK THE RESULT WE REACH FOLLOWS NATURALLY:  TO
THE EXTENT THERE ARE UNCERTAINTIES OVER THE BOARD'S POWER TO ALTER
EFFECTIVE CERTIFICATES, THERE IS AN IDENTIFIABLE CONGRESSIONAL INTENT
THAT THESE UNCERTAINTIES BE RESOLVED IN FAVOR OF THE CERTIFICATED
CARRIER AND THAT THE SPECIFIC INSTRUCTIONS SET OUT IN THE STATUTE
SHOULD NOT BE MODIFIED BY RESORT TO SUCH GENERALITIES AS
"ADMINISTRATIVE FLEXIBILITY" AND "IMPLIED POWERS."  WE DO NOT QUARREL
WITH THOSE WHO WOULD GRANT THE BOARD GREAT DISCRETION TO CONJURE WITH
CERTIFICATES PRIOR TO EFFECTUATION.  BUT, WE FEEL THAT WE WOULD BE
PAYING LESS THAN ADEQUATE DEFERENCE TO THE INTENT OF CONGRESS WERE WE
NOT TO HOLD THAT, AFTER A CERTIFICATE HAS GONE INTO EFFECT, THE
INSTRUCTIONS SET OUT IN THE STATUTE ARE TO BE FOLLOWED SCRUPULOUSLY. 

HOWEVER, PETITIONERS ARGUE THAT THERE IS AN IMPLIED EXCEPTION TO THE
STATUTORY MANDATE WHEN THE BOARD, PURSUANT TO A PETITION FOR
RECONSIDERATION FILED BEFORE THE CERTIFICATE'S EFFECTIVE DATE, MAKES A
STATEMENT THAT THE CERTIFICATE IS SUBJECT TO LATER AMENDMENT AFTER
FURTHER DELIBERATION UPON THE PETITION.  PETITIONERS ADMIT THAT THERE
IS NO EXPRESS STATUTORY AUTHORITY FOR THE BOARD TO ENTERTAIN PETITIONS
FOR RECONSIDERATION EVEN PRIOR TO THE EFFECTIVE DATE OF THE
CERTIFICATE, BUT THEY ASSERT, AND WE ASSUME ARGUENDO THEY ARE CORRECT,
THAT THE BOARD HAS IMPLIED POWER TO ACCEPT SUCH PETITIONS.  THIS BEING
THE CASE, PETITIONERS CLAIM THAT THE EXISTENCE OF AN OUTSTANDING
PETITION FOR RECONSIDERATION GIVES A DOUBLE MEANING TO THE TERM
"EFFECTIVE" AS USED IN THE ACT: CERTIFICATES ARE "EFFECTIVE" ON THE
DATE SPECIFIED THEREIN FOR THE PURPOSE OF ALLOWING THE CERTIFICATED
CARRIER TO COMMENCE OPERATIONS, BUT THEY ARE NOT "EFFECTIVE" AS THE
TERM IS USED IN SEC. 401(F) SO AS TO PRECLUDE MODIFICATION OUTSIDE THE
PROCEDURES SPECIFIED IN SEC. 401(G). 

THE APPEAL OF THIS ARGUMENT COMES, IN THE MAIN, FROM THE GENERAL
NOTION THAT AN ADMINISTRATIVE ORDER IS NOT "FINAL," FOR THE PURPOSES OF
JUDICIAL REVIEW, UNTIL OUTSTANDING PETITIONS FOR RECONSIDERATION HAVE
BEEN DISPOSED OF.  SEE, E.G., OUTLAND V. CIVIL AERONAUTICS BOARD, 109
U.S. APP. D.C. 90, 284 F.2D 224; BRANIFF AIRWAYS, INC., V. CIVIL
AERONAUTICS BOARD, 79 U.S. APP. D.C. 341, 147 F.2D 152.  ONCE IT IS
ESTABLISHED THAT THE CERTIFICATE IS NOT "FINAL" FOR ONE PURPOSE, THE
ARGUMENT RUNS, THEN IT IS LOGICAL TO ASSUME THAT THE CERTIFICATE LACKS
"FINALITY" FOR ANOTHER.  THE DIFFICULTIES WITH THIS LINE OF REASONING,
HOWEVER, ARE MANY.  FIRST, INSOFAR AS IT IS BOTTOMED ON CASES SUCH AS
OUTLAND AND BRANIFF, THE ARGUMENT RELIES ON HOLDINGS THAT WERE NEVER
MADE.  THE COURTS OF APPEALS IN THESE CASES DECIDED ONLY THAT PETITIONS
FOR REVIEW WERE TIMELY IF FILED IN TIME FROM THE DATE ON WHICH THE
BOARD DISPOSED OF PENDING PETITIONS FOR RECONSIDERATION; THE QUESTION
WHETHER THE BOARD'S ACTION ON THE PETITIONS FOR RECONSIDERATION SHOULD
HAVE BEEN TAKEN AFTER NOTICE AND HEARING DID NOT ARISE.  FURTHERMORE,
PETITIONERS' ARGUMENT SKIPS AN IMPORTANT LOGICAL STEP; IT ASSUMES,
WITHOUT EXPLANATION, THAT QUESTIONS OF ADMINISTRATIVE FINALITY PRESENT
THE SAME PROBLEMS, AND THEREFORE DESERVE THE SAME SOLUTIONS, AS
QUESTIONS CONCERNING THE TIMELINESS OF AN APPEAL.  IN POINT OF FACT,
THIS ASSERTION IS NOT ONLY UNSUPPORTED BUT ERRONEOUS.  THE PERTINENT
STATUTORY LANGUAGE IS NOT SIMILAR IN THE TWO INSTANCES (FN9) AND THE
OTHER POINTS UNDER ANALYSIS ARE DIFFERENT.  THUS, A COURT CONSIDERING
THE TIMELINESS OF A LITIGANT'S APPEAL IS CONCERNED WITH THE WISDOM OF
EXERCISING ITS OWN POWER TO ACT, AND THE RESULT DEPENDS ON SUCH FACTORS
AS FAIRNESS TO THE APPELLANT AND THE INTENT OF CONGRESS IN PASSING A
GENERAL STATUTE - SEC. 10(C) OF THE ADMINISTRATIVE PROCEDURE ACT -
WHICH APPLIES EQUALLY TO ALMOST ALL ADMINISTRATIVE AGENCIES.  THERE IS
NO CALL, AS OUTLAND AND SIMILAR CASES ILLUSTRATE BY THEIR OMISSIONS,
FOR CONSIDERING EITHER THE SECTIONS OF A PARTICULAR ACT WHICH ARE NOT
CONCERNED WITH APPELLATE REVIEW OR THE PROBLEM - WHICH AT THAT POINT IS
OF HISTORICAL INTEREST ONLY - WHETHER THE PETITION FOR RECONSIDERATION
SHOULD HAVE BEEN DECIDED SUMMARILY OR AFTER NOTICE AND HEARING.  ONE
MIGHT ARGUE, OF COURSE, THAT THE QUESTION IS SIMILAR IN BOTH INSTANCES
BECAUSE, IF THE BOARD'S ACTION ON THE PETITION FOR RECONSIDERATION IS
TOO LATE, THEN AN APPEAL WHICH IS TIMELY ONLY FROM THE BOARD'S ACTION
ON RECONSIDERATION IS ALSO TOO LATE.  HOWEVER, THIS LINE OF REASONING
OVERLOOKS THE CONFINES OF THE RESULT WE ARE REACHING IN THIS CASE.  WE
ARE NOT SAYING THAT THE BOARD CANNOT ENTERTAIN PETITIONS FOR
RECONSIDERATION AFTER EFFECTIVE CERTIFICATION, NOR ARE WE HOLDING THAT
SUCH PETITIONS CANNOT BE DENIED SUMMARILY; ALL WE HOLD IS THAT THE
PETITIONS CANNOT BE GRANTED AND THE CERTIFICATED CARRIER'S OPERATIONS
CURTAILED WITHOUT NOTICE OR HEARING.  THEREFORE, SINCE THE CASES SUCH
AS OUTLAND CONCERNED THE DENIAL OF A PETITION FOR RECONSIDERATION,
THERE IS NO CONFLICT, EXPRESS OR IMPLIED, BETWEEN THOSE DECISIONS AND
THIS ONE.   (FN10)  IN THIS CONNECTION, THE STATEMENT OF A LEADING
COMMENTATOR SEEMS PARTICULARLY PERTINENT: 

"THE TENDENCY TO ASSUME THAT A WORD WHICH APPEARS IN TWO OR MORE
LEGAL RULES, AND SO IN CONNECTION WITH MORE THAN ONE PURPOSE, HAS, AND
SHOULD HAVE PRECISELY THE SAME SCOPE IN ALL OF THEM RUNS ALL THROUGH
LEGAL DISCUSSIONS.  IT HAS ALL THE TENACITY OF ORIGINAL SIN AND MUST
CONSTANTLY BE GUARDED AGAINST."  COOK, THE LOGICAL AND LEGAL BASES OF
THE CONFLICT OF LAWS, 159.  (FN11) 

THIRDLY, WERE WE TO ADOPT THE POSITION URGED BY PETITIONERS, WE WOULD
HAVE TO HOLD THAT, IN THE WORDS OF A FORMER CHAIRMAN OF THE BOARD, THE
POWER TO RECONSIDER A CASE MAY BE THE LEVER FOR "NULLIFYING AN EXPRESS
PROVISION OF THE ACT."  RYAN, THE REVOCATION OF AN AIRLINE CERTIFICATE
OF PUBLIC CONVENIENCE AND NECESSITY, 15 J. AIR L. & COMM. 377, 384.  AS
COMMISSIONER RYAN INDICATED, THE POWER THE BOARD ASKS FOR IN THIS CASE
SEEMS NOTHING MORE OR LESS THAN THE POWER TO DO INDIRECTLY WHAT IT
CANNOT DO DIRECTLY.  PARENTHETICALLY, IT SHOULD BE NOTED THAT, FOR
PURPOSES OF THIS DISPUTE, IT IS DIFFICULT TO DRAW A DISTINCTION BETWEEN
A PETITION FOR RECONSIDERATION FILED BY A PARTY AND ONE INITIATED BY
THE BOARD SUA SPONTE.  SPRAGUE V. WOLL, 122 F.2D 128.  THIS BEING THE
CASE, IT IS ALL THE MORE SIGNIFICANT THAT THE COURT IN UNITED STATES V.
SEATRAIN LINES, 329 U.S. 424, WHILE OVERRULING THE INTERSTATE COMMERCE
COMMISSION'S CONTENTION THAT IT HAD INHERENT POWER TO RECONSIDER
EFFECTIVE CERTIFICATES, PAID NO ATTENTION TO THE FACT THAT THE
COMMISSION HAD MADE THE ORIGINAL CERTIFICATE EFFECTIVE, SUBJECT "TO
SUCH TERMS, CONDITIONS, AND LIMITATIONS AS ARE NOW, OR MAY HEREAFTER
BE, ATTACHED TO THE EXERCISE OF SUCH AUTHORITY BY THIS COMMISSION." 

ALTHOUGH WE FEEL THAT THE LANGUAGE AND BACKGROUND OF THE STATUTE ARE
SUFFICIENTLY CLEAR SO THAT AFFIRMANCE CAN REST SOLELY ON THAT BASIS, IT
SEEMS APPROPRIATE, IN LIGHT OF PETITIONERS' VIGOROUS ASSERTION THAT
POLICY REASONS COMPEL THEIR RESULT, TO DISCUSS SOME OF THE
RAMIFICATIONS OF OUR DECISION.  IN THE FIRST PLACE, IT BEARS REPETITION
THAT WE ARE NOT DECIDING THAT THE BOARD IS BARRED FROM RECONSIDERING
ITS INITIAL DECISION.  ALL WE HOLD IS THAT, IF THE BOARD WISHES TO DO
SO, IT MUST PROCEED IN THE MANNER AUTHORIZED BY STATUTE.  THUS, FOR
EXAMPLE, THE BOARD MAY RECONSIDER AN EFFECTIVE CERTIFICATE AT ANY TIME
IF IT AFFORDS THE CERTIFICATED CARRIER NOTICE AND HEARING PRIOR TO
DECISION; OR, IF IT FEELS UNCERTAIN ABOUT THE DECISION PRIOR TO ITS
EFFECTIVE DATE, IT MAY POSTPONE THE EFFECTIVE DATE UNTIL ALL
DIFFERENCES HAVE BEEN RESOLVED; AND, IF NEITHER OF THESE PROCEDURES
SEEM PRACTICAL IN A GIVEN CASE, THE BOARD MAY ISSUE A TEMPORARY
CERTIFICATE SET TO EXPIRE ON THE DATE THE BOARD PRESCRIBES FOR RE
EXAMINATION.  (FN12)  INDEED, WTIH ALL THESE WEAPONS AT ITS COMMAND, IT
IS DIFFICULT TO FOLLOW THE ARGUMENT THAT THE BOARD SHOULD BE ALLOWED TO
IMPROVISE ON THE POWERS GRANTED BY CONGRESS IN ORDER TO PRESERVE
ADMINISTRATIVE FLEXIBILITY. 

FURTHERMORE, IT WOULD SEEM THAT ANY REALISTIC APPRAISAL OF THE
RELATIVE HARDSHIPS INVOLVED IN THIS CASE CUTS IN FAVOR OF THE
RESPONDENT.  TO BE SURE, THE BOARD MAY BE ABLE TO ACT QUICKER UNDER THE
RULE IT ESPOUSES AND, BY ELIMINATING THE NECESSITY OF A NEW HEARING,
LAKE CENTRAL WILL BE SPARED THE EXPENSE OF PREPARING A NEW RECORD. 
HOWEVER, WERE THE BOARD CORRECT, RESPONDENT WOULD BE SUBJECTED TO THE
LOSS OF VALUABLE ROUTES, ROUTES IT HAD ALREADY BEGUN TO OPERATE AFTER
CONSIDERABLE INITIAL INVESTMENT, WITHOUT BEING HEARD IN OPPOSITION. 
THE BOARD POINTS OUT THAT RESPONDENT HAD NOTICE THAT THE BOARD HAD
RESERVED THE RIGHT TO AMEND THE CERTIFICATE.  BUT IT IS NOT CLEAR WHAT
COMFORT RESPONDENT COULD TAKE FROM SUCH NOTICE; RESPONDENT COULD NOT
HEDGE, SINCE SEC. 401(F) OF THE ACT PROVIDES THAT A CERTIFICATED
CARRIER MAY LOSE THE RIGHT TO CONDUCT ANY SERVICE IT DOES NOT INITIATE
WITHIN 90 DAYS OF CERTIFICATION.  CONCEDEDLY, THE FACT OF NOTICE GIVES
CONSIDERABLE SURFACE APPEAL TO PETITIONERS' ASSERTIONS; THEY CAN AND DO
ARGUE THAT RESPONDENT KNEW WHAT IT WAS GETTING INTO AND SHOULD NOT BE
HEARD TO COMPLAIN WHEN THE GAMBLE TURNS OUT UNFAVORABLY.  HOWEVER, IT
MUST BE REMEMBERED THAT THE PROBLEM IS NOT PRESENTED TO US IN THE
ABSTRACT; WE ARE DEALING WITH IT IN THE CONTEXT OF THIS PARTICULAR
STATUTE.  AND, AS STATED ABOVE, A MAJOR PURPOSE BEHIND THE ENACTMENT OF
THE AVIATION ACT WAS TO ELIMINATE THE ELEMENT OF RISK FROM A CARRIER'S
OPERATIONS.  WITH CONGRESS ON RECORD AS AFFIRMATIVELY DESIRING TO
ELIMINATE THE NECESSITY OF GAMBLING, WE DO NOT FEEL THAT THE
"ASSUMPTION OF THE RISK" ARGUMENT CARRIES MUCH WEIGHT.  THE BOARD ALSO
ARGUES THAT RESPONDENT "IN SUBSTANCE" ENJOYED THE HEARING CONTEMPLATED
BY SEC. 401(G) BECAUSE THE MATTERS IMPELLING THE BOARD TO CHANGE ITS
MIND WERE MATTERS THAT HAD BEEN THRASHED OUT DURING THE HEARINGS ON THE
ORIGINAL CERTIFICATE.  HOWEVER, THIS CONTENTION ASSUMES A FACT THAT WE
DO NOT HAVE BEFORE US - THAT A HEARING WOULD NOT HAVE DISCLOSED ANY
FURTHER EVIDENCE OR, PERHAPS MORE IMPORTANTLY, ANY POST-CERTIFICATION
EVENTS WEIGHTY ENOUGH TO ALTER THE BOARD'S THINKING.  (FN13) 

IN SHORT, OUR CONCLUSION IS THAT CONGRESS WANTED CERTIFICATED
CARRIERS TO ENJOY "SECURITY OF ROUTE" SO THAT THEY MIGHT INVEST THE
CONSIDERABLE SUMS REQUIRED TO SUPPORT THEIR OPERATIONS; AND, TO THIS
END, CONGRESS PROVIDED CERTAIN MINIMUM PROTECTIONS BEFORE A
CERTIFICATED OPERATION COULD BE CANCELLED.  WE DO NOT THINK IT TOO MUCH
TO ASK THAT THE BOARD FURNISH THESE MINIMUM PROTECTIONS AS A MATTER OF
COURSE, WHETHER OR NOT THE BOARD IN A GIVEN CASE MIGHT THINK THEM
MEANINGLESS.  IT MIGHT BE ADDED THAT SOME AUTHORITIES HAVE FELT
STRONGLY ENOUGH ABOUT THE PRACTICAL SIGNIFICANCE OF THESE PROTECTIONS
TO SUGGEST THAT THEIR PRESENCE MAY BE REQUIRED BY THE FIFTH AMENDMENT. 
SEE SEATRAIN LINES V. UNITED STATES, 64 F. SUPP. 156, 161; HANDLON V.
TOWN OF BELLEVILLE, 4 N.J. 99, 71 A.2D 624; SEE ALSO 63 HARV. L. REV.
1437, 1439. 

PETITIONERS' FINAL ARGUMENT IS THAT THEIR POSITION IS SUPPORTED BY
CONSISTENT ADMINISTRATIVE CONSTRUCTION AND ANALOGOUS CASE AUTHORITY. 
THE ADMINISTRATIVE CONSTRUCTION ARGUMENT APPEARS LESS THAN SUBSTANTIAL
IN LIGHT OF THE FACT THAT, ON THE LAST AND, IT APPEARS, ONLY OCCASION
WHEN THE PRESENT QUESTION WAS EXPRESSLY CONSIDERED, THE BOARD SAID IN
DICTUM THAT IT HAD "GRAVE DOUBTS" ABOUT PROCEEDING IN THE MANNER
FOLLOWED IN THIS CASE.  KANSAS CITY-MEMPHIS-FLORIDA CASE, 9 C.A.B. 401;
(FN14) CF. SMITH BROS., REVOCATION OF CERTIFICATE, 33 M.C.C. 465.  SEE
GENERALLY RYAN, SUPRA, WHERE COMMISSIONER RYAN WENT TO GREAT LENGTHS TO
EXPOSE WHAT HE FELT WERE THE FALLACIES IN THE CONTENTIONS NOW ADVANCED
BY PETITIONERS.  WITH RESPECT TO PRIOR CASES, PETITIONERS AGAIN ARE
UNABLE TO CITE ANY HOLDINGS ON POINT.  PETITIONERS RELY HEAVILY ON
FRONTIER AIRLINES, INC., V. CIVIL AERONAUTICS BOARD, 104 U.S. APP. D.C.
78, 259 F.2D 808, BUT THE DISPUTE HERE INVOLVED WAS NOT RAISED IN THAT
CASE.  THE CLOSEST ANALOGY IN FRONTIER IS TO THE ARGUMENT PUT FORWARD
BY A PARTY WHOSE PETITION FOR RECONSIDERATION HAD BEEN DENIED; AND THE
COURT OF APPEALS REPORTED THIS ARGUMENT AND THE REASONS FOR OVERRULING
IT AS FOLLOWS: 

"THE ORDER ON RECONSIDERATION IS A NULLITY BECAUSE IT WAS RENDERED
AFTER THE PETITION FOR JUDICIAL REVIEW HAD BEEN FILED AND AFTER THE
CERTIFICATES PREVIOUSLY ISSUED HAD BECOME EFFECTIVE; AND, IF THAT ORDER
IS A NULLITY, THE BASIC ORDER IS ALSO A NULLITY BECAUSE IT FAILS TO
COVER CERTAIN POINTS. 

*         *         *         *         * 

"WE DO NOT FIND THE ORDER DENYING RECONSIDERATION INVALID BECAUSE
RENDERED AFTER THIS PETITION WAS FILED.  NO HARM WAS DONE.  HAD THE
BOARD BEEN OF A MIND TO GRANT RECONSIDERATION, IT COULD HAVE SO
INDICATED AND A MOTION TO REMAND WOULD HAVE BEEN IN ORDER." 

PERHAPS MORE FAVORABLE TO PETITIONERS IS THIS COURT'S DECISION IN
UNITED STATES V. ROCK ISLAND MOTOR TRANSPORT CO., 340 U.S. 419, WHERE
IT WAS HELD THAT THE INTERSTATE COMMERCE COMMISSION COULD MODIFY A
MOTOR CARRIER'S EFFECTIVE CERTIFICATE PURSUANT TO A RESERVATION IN THE
INITIAL ORDER.  HOWEVER, TWO IMPORTANT DISTINCTIONS BETWEEN THAT CASE
AND THIS ARE APPARENT:  (1) THE MOTOR CARRIER ACT MAKES EXPRESS
PROVISION FOR SUMMARY MODIFICATIONS AFTER CERTIFICATION, 49 U.S.C. SEC.
308, AND (2) THE COURT IN ROCK ISLAND WAS VERY CAREFUL TO LIMIT ITS
HOLDING TO THE PARTICULAR MODIFICATION MADE IN THAT CASE.  FINALLY, THE
DECISION WHICH IS ANALYTICALLY MOST RELEVANT TO THIS CASE, UNITED
STATES V. SEATRAIN LINES, SUPRA, FURNISHES SUPPORT FOR RESPONDENT,
RATHER THAN PETITIONERS.  WHILE SEATRAIN MAY BE DISTINGUISHABLE ON ITS
FACTS, (FN15) THE COURT SPOKE IN GENERAL TERMS OF THE RULE THAT
SUPERVISING AGENCIES DESIRING TO CHANGE EXISTING CERTIFICATES MUST
FOLLOW THE PROCEDURES "SPECIFICALLY AUTHORIZED" BY CONGRESS AND CANNOT
RELY ON THEIR OWN NOTIONS OF IMPLIED POWERS IN THE ENABLING ACT.  IN
SHORT, WE DO NOT FIND THAT PRIOR AUTHORITY CLEARLY FAVORS EITHER SIDE;
HOWEVER, TO THE EXTENT THAT A BROAD OBSERVATION IS PERMISSIBLE, WE
THINK THAT BOTH ADMINISTRATIVE AND JUDICIAL FEELINGS HAVE BEEN OPPOSED
TO THE PROPOSITION THAT THE AGENCIES MAY EXPAND THEIR POWERS OF
RECONSIDERATION WITHOUT A SOLID FOUNDATION IN THE LANGUAGE OF THE
STATUTE.  THEREFORE, SINCE THE LANGUAGE AND BACKGROUND OF THE STATUTE
ARE AGAINST, RATHER THAN FOR, THE BOARD, THE JUDGMENT OF THE COURT OF
APPEALS MUST BE AFFIRMED. 

FN1  THIS SECTION PROVIDES: 

"EACH CERTIFICATE SHALL BE EFFECTIVE FROM THE DATE SPECIFIED THEREIN,
AND SHALL CONTINUE IN EFFECT UNTIL SUSPENDED OR REVOKED AS HEREINAFTER
PROVIDED, OR UNTIL THE BOARD SHALL CERTIFY THAT OPERATION THEREUNDER
HAS CEASED, OR, IF ISSUED FOR A LIMITED PERIOD OF TIME UNDER SUBSECTION
(D)(2) OF THIS SECTION, SHALL CONTINUE IN EFFECT UNTIL THE EXPIRATION
THEREOF, UNLESS, PRIOR TO THE DATE OF EXPIRATION, SUCH CERTIFICATE
SHALL BE SUSPENDED OR REVOKED AS PROVIDED HEREIN, OR THE BOARD SHALL
CERTIFY THAT OPERATIONS THEREUNDER HAVE CEASED:  PROVIDED, THAT IF ANY
SERVICE AUTHORIZED BY A CERTIFICATE IS NOT INAUGURATED WITHIN SUCH
PERIOD, NOT LESS THAN NINETY DAYS, AFTER THE DATE OF THE AUTHORIZATION
AS SHALL BE FIXED BY THE BOARD, OR IF, FOR A PERIOD OF NINETY DAYS OR
SUCH OTHER PERIOD AS MAY BE DESIGNATED BY THE BOARD ANY SUCH SERVICE IS
NOT OPERATED, THE BOARD MAY BY ORDER, ENTERED AFTER NOTICE AND HEARING,
DIRECT THAT SUCH CERTIFICATE SHALL THEREUPON CEASE TO BE EFFECTIVE TO
THE EXTENT OF SUCH SERVICE." 

FN2  THE BOARD'S REGULATIONS CONCERNING PETITIONS FOR
RECONSIDERATION, 14 CFR SEC.  302.37, PROVIDE IN PART THAT: 

"PETITION FOR RECONSIDERATION - (A) TIME FOR FILING.  A PETITION FOR
RECONSIDERATION, REHEARING OR REARGUMENT MAY BE FILED BY ANY PARTY TO A
PROCEEDING WITHIN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF A FINAL
ORDER BY THE BOARD IN SUCH PROCEEDING UNLESS THE TIME IS SHORTENED OR
ENLARGED BY THE BOARD, EXCEPT THAT SUCH PETITION MAY NOT BE FILED WITH
RESPECT TO AN INITIAL DECISION WHICH HAS BECOME FINAL THROUGH FAILURE
TO FILE EXCEPTIONS THERETO.  HOWEVER, NEITHER THE FILING NOR THE
GRANTING OF SUCH A PETITION SHALL OPERATE AS A STAY OF SUCH FINAL ORDER
UNLESS SPECIFICALLY SO ORDERED BY THE BOARD.  AFTER THE EXPIRATION OF
THE PERIOD OF FILING A PETITION, A MOTION FOR LEAVE TO FILE SUCH
PETITION MAY BE FILED; BUT NO SUCH MOTION SHALL BE GRANTED EXCEPT ON A
SHOWING OF UNUSUAL AND EXCEPTIONAL CIRCUMSTANCES, CONSTITUTING GOOD
CAUSE FOR FAILURE TO MAKE TIMELY FILING.  WITHIN TEN (10) DAYS AFTER A
PETITION FOR RECONSIDERATION, REHEARING, OR REARGUMENT IS FILED, ANY
PARTY TO THE PROCEEDING MAY FILE AN ANSWER IN SUPPORT OF OR IN
OPPOSITION TO THE PETITION."    FN3  A TEMPORARY STAY WAS GRANTED FROM
NOVEMBER 29 TO DECEMBER 5 TO ENABLE THE COURT OF APPEALS TO CONSIDER A
REQUEST BY EASTERN AIR LINES FOR A JUDICIAL STAY OF CERTAIN AWARDS MADE
IN THE ORIGINAL PROCEEDING.  EASTERN DID NOT GET ITS STAY NOR WAS ITS
CHALLENGE ON THE MERITS UPHELD.  EASTERN AIR LINES V. CIVIL AERONAUTICS
BOARD, 271 F.2D 752. 

FN4  WE ARE INFORMED THAT THIS CASE HAS NOW BEEN COMPLETED BUT NO
FURTHER ACTION HAS BEEN TAKEN ON DELTA'S RESTRICTIONS.    FN5  SEE
TOBIAS, ADMINISTRATIVE RECONSIDERATION:  SOME RECENT DEVELOPMENTS IN
NEW YORK, 28 N.Y.U.L. REV. 1262, WHERE THE AUTHOR OBSERVED: 

"RE-EXAMINATION AND RECONSIDERATION ARE AMONG THE NORMAL PROCESSES OF
INTELLIGENT LIVING.  ADMITTEDLY NO WARRANTY OF CORRECTNESS OR FITNESS
ATTACHES TO A DECISION OR AN ACTION SIMPLY BECAUSE IT IS A THING OF THE
PAST.  EVERY-DAY EXPERIENCE TEACHES THE CONTRARY:  WHILE THE CHOICE
FIRST MADE MAY WELL REMAIN THE COURSE ULTIMATELY FOLLOWED, OFTEN ENOUGH
IT IS FOUND ON FURTHER CONSIDERATION TO REQUIRE REVISION.  ON THE OTHER
HAND, CONSTANT RE-EXAMINATION AND ENDLESS VACILLATION MAY BECOME
LUDICROUS, SELF-DEFEATING, AND EVEN OPPRESSIVE.  WHETHER FOR BETTER OR
FOR WORSE SO FAR AS THE MERITS OF THE CHOSEN COURSE ARE CONCERNED, A
POINT MAY BE REACHED AT WHICH THE DIE NEEDS TO BE CAST WITH SOME
'FINALITY.'  AN OPPOSITION MAY THUS DEVELOP BETWEEN THE RIGHT RESULT
AND THE FINAL ONE." 

SEE ALSO THE STATEMENT OF THE BOARD IN ITS ORIGINAL OPINION IN THIS
CASE, DENYING A MOTION TO REOPEN THE RECORD: 

"OUR GENERAL POLICY WITH RESPECT TO MOTIONS TO REOPEN THE RECORD FOR
RECEIPT OF DATA ON THE MOST RECENT OPERATING EXPERIENCE HAS
CONSISTENTLY REFLECTED THE REQUIREMENT OF THE PUBLIC INTEREST THAT THE
RECORD IN MAJOR ROUTE CASES BE BROUGHT TO A CLOSE AS EXPEDITIOUSLY AS
POSSIBLE, CONSISTENT WITH THE REQUIREMENTS OF FULL HEARINGS, SO THAT
FINAL DECISION MAY BE RENDERED PROMPTLY.  INSTITUTION OF NEEDED NEW
SERVICES COULD BE ENDLESSLY DELAYED WERE WE TO PERMIT THE RECORD TO BE
REOPENED IN THE FINAL PROCEDURAL STAGES OF A CASE FOR THE SUBMISSION OF
MORE RECENT OPERATING DATA (AND THE ATTENDANT CROSS-EXAMINATION AND
EXCHANGE OF REBUTTAL EVIDENCE).  ONLY IN THE CASES WHERE THE SITUATION
UNDER CONSIDERATION HAS CHANGED RADICALLY WOULD SUCH A COURSE OF ACTION
BE JUSTIFIED." 

FN6  GENERALLY SPEAKING, THE LESS INTERESTED CONGRESS HAS BEEN IN
WHAT HAS BEEN CALLED "SECURITY OF CERTIFICATE," THE WIDER THE SCOPE OF
RECONSIDERATION CONGRESS HAS ALLOWED TO THE SUPERVISING AGENCY.  SEE
GENERALLY DAVIS, RES JUDICATA IN ADMINISTRATIVE LAW, 25 TEXAS L. REV.
199.  IT CANNOT BE DOUBTED THAT CONGRESS WAS POWERFULLY INTERESTED IN
"SECURITY OF CERTIFICATE" WHEN IT PASSED THE AVIATION ACT.  SEE 83
CONG. REC. 6407. 

FN7  NO ONE CONTENDS THAT THE CHANGES MADE UPON RECONSIDERATION
CONSTITUTED THE CORRECTION OF INADVERTENT ERRORS.  SEE AMERICAN
TRUCKING ASSNS., INC., V. FRISCO TRANSPORTATION CO., 358 U.S. 133. 

FN8  SPEAKING ON BEHALF OF THE BILL WHICH BECAME THE PREDECESSOR OF
THE FEDERAL AVIATION ACT - THE CIVIL AERONAUTICS ACT OF 1938 -
CONGRESSMAN LEA, CHAIRMAN OF THE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE WHICH REPORTED THE BILL, SAID: 

"ONE HUNDRED AND TWENTY MILLION DOLLARS HAS ALREADY BEEN INVESTED IN
COMMERCIAL AVIATION IN THE UNITED STATES.  IT IS THE INFORMATION OF THE
COMMITTEE THAT $60,000,000 OF THIS SUM HAS BEEN WIPED OUT.  THE FACT
THAT SO MUCH MONEY HAS BEEN PUT INTO COMMERCIAL AVIATION SHOWS THE
FAITH, THE GENIUS, AND THE COURAGE OF THE AMERICAN PEOPLE IN THAT THEY
ARE WILLING TO INVEST AS THEY HAVE IN AVIATION UP TO THIS DATE. 
HOWEVER, IN THE ABSENCE OF LEGISLATION SUCH AS WE HAVE NOW BEFORE US
THESE LINES ARE GOING TO FIND IT VERY DIFFICULT IF NOT IMPOSSIBLE TO
FINANCE THEIR OPERATIONS BECAUSE OF THE LACK OF STABILITY AND ASSURANCE
IN THEIR OPERATIONS.  YOU WOULD NOT WANT TO INVEST $200 OR $2,000 A
MILE IN A LINE THAT HAS NO ASSURANCE OF SECURITY OF ITS ROUTE AND NO
PROTECTION AGAINST CUTTHROAT COMPETITION. 

"PART OF THE PROPOSAL HERE IS THAT THE REGULATORY BODY CREATED BY THE
BILL WILL HAVE AUTHORITY TO ISSUE CERTIFICATES OF CONVENIENCE AND
NECESSITY TO THE OPERATORS.  THIS WILL GIVE ASSURANCE OF SECURITY OF
ROUTE.  THE AUTHORITY WILL ALSO EXERCISE RATE CONTROL, REQUIRING THAT
RATES BE REASONABLE AND GIVING POWER TO PROTECT AGAINST CUTTHROAT
COMPETITION.  IN MY JUDGMENT, THOSE TWO THINGS ARE THE FUNDAMENTAL AND
ESSENTIAL NEEDS OF AVIATION AT THIS TIME, SECURITY AND STABILITY IN THE
ROUTE AND PROTECTION AGAINST CUTTHROAT COMPETITION. 

"THESE ARE THE TWO ECONOMIC FUNDAMENTALS PRESENTED AND IT IS THIS
NECESSITY THAT THE BILL SEEKS TO MEET.  WE WANT TO GIVE FINANCIAL
STABILITY TO THESE COMPANIES SO THEY CAN FINANCE THEIR OPERATIONS AND
FINANCE THEM TO ADVANTAGE."  83 CONG. REC. 6406-6407. 

FN9  THE "FINALITY" OF AN ORDER FOR PURPOSES OF JUDICIAL REVIEW
DEPENDS ON SEC. 10(C) OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT.
243, 5 U.S.C. SEC. 1009(C).  SEE 6 STAN.  L. REV. 531. 

FN10  IN ADDITION TO THE REASONS MENTIONED IN THE TEXT, THOSE CASES
INVOLVING ORDERS, RATHER THAN CERTIFICATES - SEE WESTERN AIR LINES V.
CIVIL AERONAUTICS BOARD, 194 F.2D 211 - ARE DISTINGUISHABLE FOR THE
REASONS STATED IN SEATRAIN, SUPRA, AT 432.  SIMILARLY, THE CASES
INVOLVING CERTIFICATES UNDER THE FEDERAL COMMUNICATIONS ACT ARE
DISTINGUISHABLE FOR THE REASONS STATED BY COMMISSIONER RYAN.  SEE RYAN,
THE REVOCATION OF AN AIRLINE CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY, 15 J. AIR L. & COMM. 377, 384-385. 

FN11  SEE ALSO HANCOCK, FALLACY OF THE TRANSPLANTED CATEGORY, 37
CAN.  B. REV. 535.  ONE MIGHT ARGUE, OF COURSE, THAT JUDICIAL REVIEW
AND ADMINISTRATIVE RECONSIDERATION ARE THE SAME SINCE BOTH THREATEN A
REVERSAL OF THE PRIOR AWARD.  HOWEVER, CONGRESS HAS SHOWN NO INTENT TO
PRECLUDE RECONSIDERATION, EITHER JUDICIAL OR ADMINISTRATIVE, AFTER
NOTICE AND HEARING. 

FN12  ALTHOUGH THE BOARD DID NOT PURPORT TO ISSUE A TEMPORARY
CERTIFICATE AS PRESCRIBED IN SEC. 401(D)(2), PETITIONERS NOW ARGUE THAT
THE BOARD'S ACTION WAS "EQUIVALENT" TO A TEMPORARY CERTIFICATION. 
HOWEVER, WE DO NOT FIND THIS PROPOSITION PERSUASIVE.  AS STATED IN THE
TEXT, SUPRA, WE THINK THAT THE BOARD MUST BOW TO THE STATUTORY
PROCEDURE AND CANNOT TAKE SHORT CUTS.  SEE NOTE 15, INFRA.  MOREOVER,
THE MOST NATURAL READING OF SEC.  401(D)(2) - WHICH SAYS THAT TEMPORARY
CERTIFICATES MAY BE ISSUED FOR "LIMITED PERIODS" - IS THAT CONGRESS WAS
AUTHORIZING THE BOARD TO ISSUE CERTIFICATES RUNNING UNTIL A SPECIFIED
DATE.  ONE REASON FOR THIS CONSTRUCTION IS OBVIOUS; IF A TEMPORARY
CERTIFICATE HAD UNLIMITED DURATION, ONLY SUBJECT TO IMMEDIATE
REVOCATION WHEN THE BOARD GOT AROUND TO CONSIDERING VARIOUS OBJECTIONS,
IT MIGHT PLAY HAVOC WITH THE ABILITY OF THE CARRIER TO ACCEPT ADVANCE
RESERVATIONS.  JUST SUCH A CONTENTION WAS MADE BY DELTA BEFORE THE
BOARD IN ITS PETITION FOR A STAY OF THE BOARD'S MAY 7, 1959, ORDER ON
RECONSIDERATION.  DELTA POINTED OUT: 

"IT IS A FACT THAT SCHEDULES FOR MAY AND JUNE, AND TIMETABLES SHOWING
THIS EARLY MORNING CHICAGO-INDIANAPOLIS-EVANSVILLE AND EVANSVILLE
INDIANAPOLIS-CHICAGO SERVICE, HAVE BEEN RELEASED TO THE PUBLIC AND MANY
RESERVATIONS HAVE BEEN BOOKED FOR THESE MONTHS.  FURTHERMORE, PILOT
BIDDING PROCEDURES AND PROBLEMS INVOLVING EQUIPMENT ROTATION PROHIBIT
THE IMMEDIATE CANCELLATION OF THIS FLIGHT ON SHORT NOTICE." 

FN13  IT APPEARS CLEAR, AND THE BOARD DOES NOT DISAGREE, THAT THE
"HEARING" SPECIFIED IN SEC. 401(G) MEANS A "HEARING" PRIOR TO
DECISION.  AND, THE BOARD DOES NOT CONTEND THAT THIS REQUIREMENT COULD
HAVE BEEN SATISFIED BY THE ALLOWANCE OF A HEARING AFTER THE DECISION ON
RECONSIDERATION WAS HANDED DOWN.  THIS COURSE OF ACTION SEEMS WISE
SINCE (1) IT IS GENERALLY ACCEPTED ON BOTH PRINCIPLE AND AUTHORITY THAT
A HEARING AFTER DECISION, ALTHOUGH PERMISSIBLE IN SPECIAL
CIRCUMSTANCES, IS NOT THE EQUIVALENT OF A PREDETERMINATION HEARING,
SEE, E.G., GELHORN AND BYSE, ADMINISTRATIVE LAW, 774; (2) IT IS NOT
ENTIRELY CLEAR THAT DELTA COULD HAVE PROCURED A HEARING AFTER THE
BOARD'S DECISION.  DELTA SOUGHT A STAY OF THE BOARD'S MAY 7 ORDER UNTIL
AFTER THE GREAT LAKES LOCAL SERVICE INVESTIGATION CASE WAS DECIDED,
PRESUMABLY WITH A VIEW TO INTRODUCING FURTHER EVIDENCE ON THE PRESENT
POINT IN THAT CASE; THE REQUEST FOR A STAY WAS DENIED. 

FN14  SINCE KANSAS CITY, THE BOARD HAS RECONSIDERED AN EFFECTIVE
AWARD ON THREE OCCASIONS.  UNITED WESTERN, ACQUISITION OF AIR CARRIER
PROPERTY, 11 C.A.B. 701; SERVICE TO PHOENIX CASE, ORDER E-12039 (1957);
SOUTH CENTRAL AREA LOCAL SERVICE CASE, ORDER E-14219 (1959).  UNITED
WESTERN DID NOT INVOLVE A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY AND, THUS, HAS NO RELEVANCE.  SEE NOTE 10, SUPRA. SERVICE TO
PHOENIX INVOLVED A DENIAL OF RECONSIDERATION EXCEPT ON ONE POINT, WHICH
MIGHT ARGUABLY BE TERMED THE CORRECTION OF INADVERTENT ERROR.  SEE NOTE
7, SUPRA.  SOUTH CENTRAL DID INVOLVE THE ALTERATION OF A CERTIFICATED
CARRIER'S RIGHTS.  AS STATED, THE PRESENT POINT WAS NOT RAISED IN ANY
OF THESE THREE CASES. 

FN15 THE POTENTIALLY DISTINGUISHING FEATURE ABOUT SEATRAIN IS THAT
THE COURT'S HOLDING MAY REST ON AN ALTERNATE GROUND - VIZ.:  THAT THE
COMMISSION HAD NO POWER TO IMPOSE THE CONDITIONS IT DID IN THE FIRST
INSTANCE.  HOWEVER, SEATRAIN CANNOT BE DISTINGUISHED ON THE GROUNDS
THAT THE COURT SAID "THE CERTIFICATE, WHEN FINALLY GRANTED AND THE TIME
FIXED FOR REHEARING HAS PASSED, IS NOT SUBJECT TO REVOCATION IN WHOLE
OR IN PART EXCEPT AS SPECIFICALLY AUTHORIZED  ...  ."  THE POINT IS
THAT, UNDER THE WATER CARRIER ACT, THE COMMISSION HAD EXPRESS AUTHORITY
TO ENTERTAIN PETITIONS FOR RECONSIDERATION AT ANY TIME.  SEE 49 U.S.C.
SEC. 916(A), INCORPORATING 49 U.S.C. SEC. 17(6) AND (7).   THEREFORE,
IT IS CLEAR THAT THE COMMISSION IN SEATRAIN COULD HAVE REACHED WITH
IMPUNITY THE RESULT IT WANTED TO REACH BY FOLLOWING THE PROCEDURES SET
OUT BY CONGRESS.  THE FORCE OF THE SEATRAIN DECISION IS, THEN, THAT THE
COMMISSIONS AND BOARDS MUST FOLLOW SCRUPULOUSLY THE STATUTORY
PROCEDURES BEFORE THEY CAN ALTER EXISTING OPERATIONS AND THAT ARGUMENTS
TO THE EFFECT THAT "THIS IS JUST ANOTHER WAY OF DOING IT" WILL NOT
PREVAIL. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER AND MR.
JUSTICE HARLAN JOIN, DISSENTING. 

THIS IS AN AIRLINE ROUTE PROCEEDING BROUGHT BEFORE THE CIVIL
AERONAUTICS BOARD.  THE CASE INVOLVES THE EFFECT UPON THE PROCEEDING,
AND HENCE UPON A CERTIFICATE OF CONVENIENCE AND NECESSITY ORDERED TO BE
ISSUED THEREIN, OF A TIMELY MOTION FOR RECONSIDERATION. 

SPECIFICALLY, THE QUESTION PRESENTED IS WHETHER, IN THE LIGHT OF THE
PROVISIONS OF SECS. 401(F) AND 401(G) OF THE FEDERAL AVIATION ACT,
(FN1) THE BOARD, BY ALLOWING ITS CERTIFICATE TO BECOME "EFFECTIVE,"
NOTWITHSTANDING A TIMELY FILED AND UNRULED MOTION FOR RECONSIDERATION,
LOST ALL POWER TO GRANT THE MOTION AND ACCORDINGLY TO MODIFY ITS ORDER
AND THE RESULTING CERTIFICATE. 

THIS CASE IS BUT A FACET OF A MULTI-PARTY, HIGHLY COMPLEX AND
PROTRACTED ROUTE PROCEEDING, KNOWN AS THE "GREAT LAKES-SOUTHEAST
SERVICE CASE," COMMENCED BEFORE THE CIVIL AERONAUTICS BOARD IN MAY
1955.  IT INVOLVED, "PREDOMINANTLY," THE "LONG-HAUL" SERVICE NEEDS OF
AN AREA EXTENDING ROUGHLY BETWEEN THE GREAT LAKES AND FLORIDA. 
NUMEROUS TRUNKLINE CARRIERS SOUGHT NEW OR ADDITIONAL OPERATING RIGHTS
IN THAT AREA.  THE BOARD WAS ALSO CONFRONTED WITH A NUMBER OF PETITIONS
BY LOCAL CARRIERS FOR AUTHORITY TO PROVIDE NEW OR IMPORVED SHORT-HAUL
SERVICE BETWEEN CERTAIN INTERMEDIATE CITIES IN THAT AREA.  IN AN EFFORT
TO KEEP THE PROCEEDING WITHIN MANAGEABLE BOUNDS, THE BOARD DECLINED TO
CONSOLIDATE THOSE SHORT-HAUL PETITIONS WITH THIS CASE, AND, INSTEAD,
DIRECTED THE INSTITUTION OF A SEPARATE PROCEEDING (GREAT LAKES LOCAL
SERVICE INVESTIGATION) FOR THEIR RESOLUTION, BUT IT DID ANNOUNCE THAT,
TO MAKE SURE THAT THIS SEPARATION WOULD NOT DEPRIVE THEM OF AN
OPPORTUNITY TO BE HEARD IN PROTECTION OF THEIR RIGHTS, THE LOCAL
SERVICE CARRIERS WOULD BE PERMITTED TO INTERVENE IN THIS CASE. 

AS ONE OF THE MANY CONTENDING TRUNKLINE CARRIERS, RESPONDENT, DELTA
AIR LINES, INC., PETITIONED FOR AUTHORITY (1) TO EXTEND AN EXISTING
ROUTE NORTHWESTERLY TO PROVIDE SERVICE FROM MIAMI TO DETROIT, AND (2)
TO ADD INDIANAPOLIS AND LOUISVILLE AS INTERMEDIATE POINTS ON ITS
EXISTING CHICAGO-TO-MIAMI ROUTE.  PETITIONER, LAKE CENTRAL AIRLINES,
INC., A LOCAL OR SHORT-HAUL CARRIER OPERATING A LINE BETWEEN CHICAGO
AND INDIANAPOLIS, AND ALSO SERVING LOUISVILLE, INTERVENED TO OBJECT TO
THE DELTA PETITION UNLESS ITS PROPOSED NEW SERVICE TO INDIANAPOLIS AND
LOUISVILLE BE RESTRICTED TO NORTHBOUND FLIGHTS ORIGINATING, AND TO
SOUTHBOUND FLIGHTS TERMINATING, AT OR SOUTH OF ATLANTA.  UPON THIS
ISSUE, LAKE CENTRAL OFFERED EVIDENCE THAT IT WOULD SUFFER INJURY AND
DAMAGE, THROUGH DIVERSION OF ITS LOCAL TRAFFIC, BY THE PROPOSED NEW
DELTA SERVICE UNLESS IT BE SO RESTRICTED. 

ON SEPTEMBER 30, 1958, THE BOARD FILED ITS OPINION AND ORDER IN
WHICH, AMONG OTHER THINGS, IT AUTHORIZED DELTA TO ADD INDIANAPOLIS AND
LOUISVILLE AS INTERMEDIATE POINTS ON ITS CHICAGO-TO-MIAMI ROUTE,
WITHOUT IMPOSING THE RESTRICTIONS THAT LAKE CENTRAL HAD ASKED. 
CONSISTENTLY WITH ITS CUSTOM, THE BOARD STATED IN ITS ORDER THAT THE
CERTIFICATE THEREBY AUTHORIZED TO DELTA WOULD BECOME EFFECTIVE ON THE
60TH DAY AFTER ENTRY OF THE ORDER (NOVEMBER 29). 

WITHIN THE 30 DAYS ALLOWED BY THE BOARD'S RULE FOR THE FILING OF A
MOTION FOR RECONSIDERATION, (FN2) LAKE CENTRAL FILED WITH THE BOARD ON
OCTOBER 31, 1958, ITS MOTION FOR RECONSIDERATION, ELABORATING THE
GROUNDS IT HAD ASSERTED AND SUPPORTED WITH EVIDENCE, IN OPPOSITION TO
DELTA'S PETITION.  IT ALSO ASKED IN THAT MOTION THAT THE EFFECTIVE DATE
OF THE DELTA CERTIFICATE BE STAYED PENDING DECISION BY THE BOARD OF THE
MOTION FOR RECONSIDERATION.    ON NOVEMBER 28, 1958, ONE DAY PRIOR TO
THE DATE UPON WHICH, AS STATED IN THE BOARD'S ORDER OF SEPTEMBER 30,
THE DELTA CERTIFICATE WOULD BECOME EFFECTIVE, THE BOARD FILED A LENGTHY
MEMORANDUM AND ORDER IN WHICH IT DENIED LAKE CENTRAL'S REQUEST (AND
ALSO - WITH ONE EXCEPTION NOT MATERIAL HERE - THE SIMILAR REQUESTS OF
OTHERS) FOR A STAY OF THE EFFECTIVE DATE OF THE DELTA CERTIFICATE UNTIL
AFTER THE BOARD HAD DECIDED LAKE CENTRAL'S MOTION FOR RECONSIDERATION. 
IN THAT ORDER, THE BOARD EXPRESSED ITS VIEW THAT "THE PARTIES HAD NOT
MADE A SUFFICIENT SHOWING OF PROBABLE LEGAL ERROR OR ABUSE OF
DISCRETION" TO WARRANT THE ISSUANCE OF A STAY, AND THAT, IN VIEW OF THE
APPROACHING PEAK WINTER SEASON, THE "NEW SERVICES TO FLORIDA WERE
IMMEDIATELY REQUIRED." 

THEN, TURNING TO THE MOTIONS FOR RECONSIDERATION, THE BOARD SAID IN
THAT ORDER THAT, "BECAUSE OF THE DETAILED MATTERS RAISED IN THE
PETITIONS FOR RECONSIDERATION, IT WOULD NOT BE POSSIBLE TO FINALLY
DISPOSE OF THEM UNTIL AFTER NOVEMBER 29," BUT THE BOARD PROMPTLY WOULD
"ADDRESS ITSELF TO THE MERITS OF THE PETITIONS FOR RECONSIDERATION, AND
ITS ORDER DEALING WITH THOSE MATTERS WOULD ISSUE AT A LATER DATE."  IT
THUS AND OTHERWISE MADE CLEAR THAT ITS DENIAL OF THE STAYS WAS NOT
INTENDED TO BE "IN ANY WAY PREJUDICIAL TO THE LEGAL RIGHTS OF THOSE
PARTIES SEEKING RECONSIDERATION."  IT CONCLUDED:  "NOTHING IN THE
PRESENT ORDER FORECLOSES THE BOARD FROM FULL AND COMPLETE CONSIDERATION
OF THE PENDING PETITIONS FOR RECONSIDERATION ON THEIR MERITS." 

THEREAFTER, ON MAY 7, 1959, THE BOARD GRANTED LAKE CENTRAL'S PETITION
FOR RECONSIDERATION AND ACCORDINGLY ENTERED ITS FINAL ORDER RESTRICTING
DELTA'S SERVICE OF INDIANAPOLIS AND LOUISVILLE TO NORTHBOUND FLIGHTS
ORIGINATING, AND TO SOUTHBOUND FLIGHTS TERMINATING, AT OR SOUTH OF
ATLANTA; BUT THE BOARD DID SAY IN THAT ORDER THAT "IF, AFTER DECIDING
THE ISSUES PRESENTED IN THE GREAT LAKES LOCAL SERVICE CASE, WE CONCLUDE
THAT THE LONG-HAUL RESTRICTIONS ARE NOT REQUIRED, WE WILL HAVE FULL
FREEDOM TO REMOVE THEM AT THAT TIME."  IT IS THIS ORDER THAT GIVES RISE
TO THE PRESENT CONTROVERSY. 

ON DELTA'S APPEAL FROM THAT ORDER, THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT REVERSED.  280 F.2D 43.  IT HELD THAT,
NOTWITHSTANDING THE TIMELY FILED AND UNRULED MOTION FOR
RECONSIDERATION, "ONCE THE BOARD ALLOWED THE CERTIFICATE TO BECOME
EFFECTIVE," IT LOST ALL POWER THEREAFTER TO GRANT THE MOTION AND
ACCORDINGLY TO MODIFY ITS ORDER AND THE RESULTING CERTIFICATE, AND THAT
"IT IS ONLY IN A SEPARATE AND PLENARY PROCEEDING SATISFYING THE
REQUIREMENTS OF SECTION 401(G) THAT AN EFFECTIVE CERTIFICATE
AUTHORIZING UNRESTRICTED SERVICE MAY BE MODIFIED BY SUBSEQUENTLY
IMPOSED RESTRICTIONS."  280 F.2D, AT 48.  BECAUSE OF THE IMPORTANCE OF
THE QUESTION INVOLVED TO THE PROPER ADMINISTRATION OF THE ACT, WE
BROUGHT THE CASE HERE.  364 U.S. 917, 918. 

THE COURT NOW AFFIRMS THAT JUDGMENT.  IT DOES SO UPON GROUNDS WHICH,
I AM BOUND TO SAY, WITH ALL RESPECT, SEEM TO ME TO BE SPURIOUS AND
LEGALLY INDEFENSIBLE, AS I SHALL ENDEAVOR TO SHOW. 

ALTHOUGH THE FEDERAL AVIATION ACT DOES NOT EXPRESSLY PROVIDE FOR
MOTIONS FOR RECONSIDERATION BY THE BOARD OF ITS ORDERS, IT IS CLEAR,
AND INDEED IT IS AGREED BY THE PARTIES, THAT THE BOARD HAS POWER TO
PROVIDE FOR, AND TO ENTERTAIN, SUCH MOTIONS, FOR "THE POWER TO
RECONSIDER IS INHERENT IN THE POWER TO DECIDE."  ALBERTSON V. FEDERAL
COMMUNICATIONS COMM'N, 87 U.S. APP. D.C. 39, 41, 182 F.2D 397, 399. 
SEE ALSO BRANIFF AIRWAYS V. CIVIL AERONAUTICS BOARD, 79 U.S. APP. D.C.
341, 147 F.2D 152. 

PURSUANT TO THAT POWER, THE BOARD ADOPTED ITS RULE OF PRACTICE
PRESCRIBING, IN PERTINENT PART, THAT "A PETITION FOR RECONSIDERATION,
REHEARING OR REARGUMENT MAY BE FILED BY ANY PARTY TO A PROCEEDING
WITHIN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF A FINAL ORDER BY
THE BOARD IN SUCH PROCEEDING  ...  ."  (FN3)  IT IS ADMITTED THAT LAKE
CENTRAL FILED ITS MOTION FOR RECONSIDERATION WITHIN THE 30 DAYS ALLOWED
BY THAT RULE. 

UNDER EVERY RELEVANT REPORTED DECISION, SAVE ONE TO BE LATER NOTED, A
TIMELY MOTION FOR RECONSIDERATION, BEING AN AUTHORIZED AND APPROPRIATE
STEP IN THE PROCEEDING, "OPERATES TO RETAIN THE BOARD'S AUTHORITY OVER
THE ORIGINAL ORDER," WATERMAN S.S. CORP. V. CIVIL AERONAUTICS BOARD,
159 F.2D 828, 829 (C.A. 5TH CIR.), "REOPENS THE CASE,"  BLACK RIVER
VALLEY BROADCASTS V. MCNINCH, 69 APP. D.C. 311, 316, 101 F.2D 235, 240,
AND PREVENTS THE "PROPOSED DECISION" - WHICH, AT THAT STAGE, IS ALL IT
IS (WATERMAN CASE, SUPRA, AT 828) - FROM BECOMING "FINAL."  OUTLAND V.
CIVIL AERONAUTICS BOARD, 109 U.S. APP. D.C. 193, 284 F.2D 224, 227. 
THE PROCEEDING BEING THUS HELD OPEN BY THE MOTION, AND THE BOARD HAVING
BOTH THE POWER AND THE DUTY TO DECIDE IT, IT WOULD SEEM TO BE
FUNDAMENTAL THAT THE BOARD HAS POWER TO DECIDE IT EITHER WAY -
INCLUDING, OF COURSE, THE "POWER TO GRANT IT," ENTERPRISE CO. V.
FEDERAL COMMUNICATIONS COMM'N, 97 U.S. APP. D.C. 374, 378, 231 F.2D
708, 712, AS IT DID HERE. 

IT SEEMS NECESSARILY TRUE, AND IS WELL SETTLED BY THE CASES, THAT
"WHERE A MOTION FOR REHEARING IS IN FACT FILED THERE IS NO FINAL ACTION
UNTIL THE REHEARING IS DENIED  ...  FOR THERE IS ALWAYS A POSSIBILITY
THAT THE ORDER COMPLAINED OF WILL BE MODIFIED IN A WAY WHICH RENDERS
JUDICIAL REVIEW UNNECESSARY," OUTLAND V. CIVIL AERONAUTICS BOARD, 109
U.S. APP. D.C., AT 93, 284 F.2D, AT 227, AND "ALTHOUGH THE MOTION DID
NOT  ...  SUPERSEDE OR SUSPEND THE ORDER, IT DID OPERATE TO RETAIN THE
BOARD'S AUTHORITY OVER THE ORDER, SO THAT THE ORDER OVERRULING THE
MOTION SHOULD BE TAKEN AS THE FINAL  ...  ORDER INTENDED BY THE STATUTE
TO START THE RUNNING OF THE SIXTY-DAY PERIOD FOR JUDICIAL REVIEW." 
WATERMAN S.S. CORP. V. CIVIL AERONAUTICS BOARD, SUPRA, AT 829.  IT
NECESSARILY FOLLOWS THAT, IF A TIMELY MOTION FOR RECONSIDERATION IS
PENDING BEFORE THE BOARD, ITS "PROPOSED DECISION" (ID., AT 828) HAS
"NOT BECOME FINAL IN THE SENSE THAT IT IS NO LONGER SUBJECT TO CHANGE
UPON RECONSIDERATION," ENTERPRISE CO. V. FEDERAL COMMUNICATIONS COMM'N,
97 U.S. APP. D.C., AT 378, 231 F.2D, AT 712, AND "JURISDICTION OVER
THAT ORDER REMAINS WITH THE BOARD UNTIL THE TIME FOR APPEAL HAS
EXPIRED, AND THAT TIME IS TOLLED BY AN APPLICATION FOR REHEARING." 
(IBID.)  HENCE, "NO FINAL RIGHTS ACCRUED TO DELTA AS A RESULT OF THE
ORDER ORIGINALLY GRANTING ITS PERMIT," BLACK RIVER VALLEY BROADCASTS V.
MCNINCH, 69 APP. D.C., AT 316, 101 F.2D, AT 240.  SEE ALSO, E.G.,
BRANIFF AIRWAYS V. CIVIL AERONAUTICS BOARD, SUPRA; ALBERTSON V. FEDERAL
COMMUNICATIONS COMM'N, SUPRA; WESTERN AIR LINES V.  CIVIL AERONAUTICS
BOARD, 194 F.2D 211 (C.A. 9TH CIR.); AND BUTTERFIELD THEATRES V.
FEDERAL COMMUNICATIONS COMM'N, 99 U.S. APP. D.C. 71, 237 F.2D 552. 

"THERE IS NO DOUBT UNDER THE DECISIONS AND PRACTICE IN THIS COURT
THAT WHERE A MOTION FOR A NEW TRIAL IN A COURT OF LAW, OR A PETITION
FOR A REHEARING IN A COURT OF EQUITY, IS DULY AND SEASONABLY FILED, IT
SUSPENDS THE RUNNING OF THE TIME FOR TAKING  ...  AN APPEAL, AND THAT
THE TIME WITHIN WHICH A PROCEEDING TO REVIEW MUST BE INITIATED BEGINS
FROM THE DATE OF THE DENIAL OF  ...  THE MOTION  ...  ,"  MORSE V.
UNITED STATES, 270 U.S. 151, 153-154, AND "THIS IS ALSO TRUE IN
ADMINISTRATIVE PROCEEDINGS,"  BLACK RIVER VALLEY BROADCASTS V. MCNINCH,
69 APP. D.C., AT 316, 101 F.2D, AT 240.  (FN4) 

THE ONLY REPORTED DECISION TO THE CONTRARY IS CONSOLIDATED FLOWERS
SHIPMENTS V. CIVIL AERONAUTICS BOARD, 205 F.2D 449 (C.A. 9TH CIR.).  IT
WAS THERE HELD THAT THE TIME WITHIN WHICH A PETITION FOR REVIEW MUST BE
FILED RUNS FROM THE DATE OF THE BOARD'S DECISION, NOT FROM THE DATE ON
WHICH IT OVERRULED A TIMELY MOTION FOR RECONSIDERATION; AND, INASMUCH
AS THE PETITION FOR REVIEW HAD NOT BEEN FILED WITHIN THE FORMER PERIOD,
THE COURT DISMISSED THE PETITION AS UNTIMELY.  RECOGNIZING THAT THIS
RESULT WAS CONTRARY TO ITS PRIOR DECISIONS, (FN5) THE COURT THOUGHT IT
WAS REQUIRED TO SO HOLD BECAUSE OF THE LAST SENTENCE OF SEC. 10(C) OF
THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. SEC. 1009(C), SAYING THAT,
FOR THE PURPOSES OF APPEAL, "AGENCY ACTION OTHERWISE FINAL SHALL BE
FINAL FOR THE PURPOSES OF THIS SUBSECTION WHETHER OR NOT THERE HAS BEEN
PRESENTED OR DETERMINED ANY APPLICATION  ...  FOR ANY FORM OF
RECONSIDERATION  ...  ."  THE FALLACY OF THAT REASONING WAS COMPLETELY
EXPOSED AND SOUNDLY REJECTED IN OUTLAND V. CIVIL AERONAUTICS BOARD,
SUPRA.  (FN6)  AND ON MAY 1, 1961, THE NINTH CIRCUIT ITSELF
SPECIFICALLY OVERRULED THAT CASE.  SAMUEL B. FRANKLIN & CO. V.
SECURITIES EXCHANGE COMMISSION, 290 F.2D 719. 

THERE IS ONLY ONE REPORTED DECISION, INVOLVING PROCEDURES BEFORE THE
CIVIL AERONAUTICS BOARD, THAT HAS PRESENTED THE PRECISE QUESTION WE
HAVE HERE.  IT IS FRONTIER AIRLINES, INC., V. CIVIL AERONAUTICS BOARD,
104 U.S. APP. D.C. 78, 259 F.2D 808.  THERE, JUST AS HERE, AFTER A
BOARD CERTIFICATE HAD BEEN PERMITTED TO BECOME "EFFECTIVE," THE BOARD
GRANTED AN EARLIER AND TIMELY FILED MOTION FOR RECONSIDERATION AND
REVISED THE CERTIFICATE ACCORDINGLY.  IT WAS CONTENDED THAT THE
REVISION OF THE ORDER AND, HENCE, ALSO OF THE CERTIFICATE, SO MADE, WAS
"A NULLITY BECAUSE IT WAS RENDERED  ...  AFTER THE CERTIFICATE  ...
HAD BECOME EFFECTIVE."  (104 U.S. APP. D.C., AT 80, 259 F.2D, AT 810.) 
THAT CONTENTION WAS THERE SOUNDLY REJECTED. 

IT THEREFORE SEEMS QUITE CLEAR TO ME THAT, UNDER HISTORIC LEGAL
PROCEDURES AND ALL, SAVE ONE, OF THE NUMEROUS RELEVANT DECISIONS, THE
TIMELY FILING OF THE MOTION FOR RECONSIDERATION - BEING A LEGALLY
AUTHORIZED STEP IN THE PROCEEDING - KEPT THE PROCEEDING OPEN AND
CONTINUING; THAT HAVING THE POWER, AS WELL AS THE DUTY, TO DECIDE THAT
MOTION, THE BOARD HAD POWER TO GRANT IT, AS IT DID, AND THUS,
NECESSARILY, ACCORDINGLY TO REVISE ITS EARLIER DECISION - WHICH, UNTIL
THEN, WAS ONLY "A PROPOSED DECISION" (WATERMAN CASE, SUPRA, AT 828) -
AND THAT, INASMUCH AS THE BOARD SUSTAINED THAT MOTION, THE EARLIER
"PROPOSED DECISION" NEVER DID BECOME THE FINAL DECISION IN THE
PROCEEDING. 

INASMUCH AS ALL OF THE REPORTED CASES, SAVE THE DISCREDITED AND NOW
OVERRULED CONSOLIDATED FLOWERS CASE, SUPRA, ARE AGAINST IT, DELTA IS
COMPELLED TO RELY ALMOST ENTIRELY ON ITS CLAIM THAT THE "PLAIN
LANGUAGE" OF SEC. 401(F) DEPRIVES THE BOARD OF POWER, ONCE IT HAS
ALLOWED A CERTIFICATE TO BECOME "EFFECTIVE," TO REVISE ITS INITIAL
DECISION AND THE RESULTING CERTIFICATE IN PURSUANCE OF AN EARLIER AND
TIMELY FILED MOTION FOR RECONSIDERATION; AND THAT, ONCE IT HAS BEEN SO
PERMITTED TO BECOME "EFFECTIVE," THE CERTIFICATE MAY BE MODIFIED OR
ALTERED ONLY BY A SEPARATE AND INDEPENDENT PLENARY PROCEEDING UNDER
SEC. 401(G). 

THE OBVIOUS DEFECTS IN THAT ARGUMENT ARE THAT (1) UNDER SEC. 401(F),
THE "PROPOSED DECISION" (WATERMAN CASE, SUPRA, AT 228) REMAINED SUBJECT
TO REVISION BY THE BOARD IN RESPONSE TO THE TIMELY FILED MOTION FOR
RECONSIDERATION, AND (2) THE ARGUMENT IGNORES THE FACT THAT SEC. 401(G)
APPLIES ONLY TO PROCEEDINGS TO ALTER, AMEND, SUSPEND OR REVOKE A
CERTIFICATE IN EXISTENCE AFTER THE AUTHORIZATION PROCEEDING HAS BEEN
FULLY CONCLUDED AND FINALLY ENDED - I.E., AFTER ALL TIMELY FILED
MOTIONS FOR RECONSIDERATION HAVE BEEN DENIED, AND THE TIME FOR APPEAL
HAS EXPIRED WITHOUT AN APPEAL BEING TAKEN OR, IF AN APPEAL WAS TAKEN,
THE BOARD'S DECISION HAS BEEN FINALLY AFFIRMED. 

SURELY IT CANNOT BE DOUBTED THAT, IF THE BOARD, INSTEAD OF GRANTING
IT, HAD DENIED THE MOTION FOR RECONSIDERATION, THE COURT OF APPEALS, ON
JUDICIAL REVIEW, OR THIS COURT ON CERTIORARI, COULD REVERSE THE BOARD'S
DECISION AND REMAND THE CASE TO THE BOARD WITH DIRECTIONS TO GRANT THE
MOTION FOR RECONSIDERATION.  IT IS CERTAIN THAT SUCH A JUDGMENT WOULD
OPERATE NOT ONLY ON THE BOARD'S DECISION BUT, AS WELL, ON ITS
"EFFECTIVE" CERTIFICATE.  IF THE BOARD HAS POWER, WHEN THUS DIRECTED BY
THE JUDGMENT OF A REVIEWING COURT, TO REVISE, MODIFY OR VACATE ITS
ERRONEOUS DECISION AND ITS RESULTING CERTIFICATE, EVEN THOUGH
"EFFECTIVE," WHY SHOULD THE RESULT BE DIFFERENT IF THE BOARD, WITHOUT
SUCH JUDICIAL DIRECTION, NOTES ITS ERROR, GRANTS THE TIMELY FILED AND
PENDING MOTION FOR RECONSIDERATION, AND ACCORDINGLY REVISES ITS
DECISION AND THE RESULTING CERTIFICATE? 

APART FROM THE DISCREDITED AND NOW OVERRULED NINTH CIRCUIT CASE OF
CONSOLIDATED FLOWERS SHIPMENTS V. CIVIL AERONAUTICS BOARD, SUPRA, DELTA
CITES NO CASE THAT INVOLVES THE EFFECT UPON A BOARD DECISION OF A
TIMELY FILED MOTION FOR RECONSIDERATION, OR OF A BOARD-REVISED ORDER
MADE IN PURSUANCE OF SUCH A MOTION, OR THAT IN ANY WAY SUPPORTS IT.
ITS CLAIM OF SUPPORT BY UNITED STATES V. SEATRAIN LINES, 329 U.S. 424;
WATSON BROS. TRANSPORTATION CO. V. UNITED STATES, 132 F. SUPP. 905; AND
SMITH BROS. REVOCATION OF CERTIFICATE, 33 M.C.C.  465, IS WHOLLY
UNFOUNDED.  NONE OF THOSE CASES INVOLVED OR DEALT WITH THE QUESTION WE
HAVE HERE.  NONE OF THEM INVOLVED OR DEALT WITH ANY QUESTION RESPECTING
THE EFFECT OF A TIMELY FILED MOTION FOR RECONSIDERATION UPON AN
ADMINISTRATIVE ORDER.  TO THE CONTRARY, IN EACH OF THEM THE
ADMINISTRATIVE PROCEEDING HAD LONG SINCE FINALLY ENDED - I.E., ALL
TIMELY FILED MOTIONS FOR RECONSIDERATION HAD BEEN DENIED, THE TIME FOR
JUDICIAL REVIEW HAD EXPIRED, AND THE PROCEEDING WAS IN ALL RESPECTS
CLOSED. 

THE ONLY RELEVANT STATEMENT IN THE SEATRAIN CASE, SUPRA, IS SQUARELY
OPPOSED TO DELTA'S POSITION, NAMELY, "THE CERTIFICATE, WHEN FINALLY
GRANTED AND THE TIME FIXED FOR REHEARING IT HAS PASSED, IS NOT SUBJECT
TO REVOCATION IN WHOLE OR IN PART EXCEPT AS SPECIFICALLY AUTHORIZED BY
CONGRESS (I.E., IN AN INDEPENDENT PLENARY PROCEEDING)."  329 U.S., AT
432, 433.  HERE, "THE TIME FIXED FOR REHEARING HAD NOT PASSED," BUT,
INSTEAD, AN APPROPRIATE MOTION FOR RECONSIDERATION HAD BEEN TIMELY
FILED AND WAS PENDING.  SURELY, THE BOARD NOT ONLY HAD POWER, BUT ALSO
A DUTY, TO RULE ON THAT MOTION AND, IF IT FOUND IT MERITORIOUS, TO
SUSTAIN IT, AND ACCORDINGLY TO REVISE ITS DECISION AND RESULTING
CERTIFICATE.    THE WATSON CASE, SUPRA, HAS NO RELEVANCE WHATEVER TO
THIS ONE.  IN THE SMITH CASE, SUPRA, THE COMMISSION WAS CAREFUL TO
POINT OUT THAT "  ...  THE CERTIFICATE MARKS THE END OF THE
PROCEEDINGS, JUST AS THE ENTRY OF A FINAL JUDGMENT OR DECREE MARKS THE
END OF A COURT PROCEEDING  ...  ."  33 M.C.C., AT 472.  IT IS CERTAIN
THAT "A PROPOSED DECISION" (WATERMAN CASE, SUPRA, AT 228) OF A COURT
DOES NOT, WHILE A TIMELY FILED MOTION FOR NEW TRIAL, REHEARING OR
RECONSIDERATION IS PENDING, END THE PROCEEDING, BUT IT IS THE DENIAL OF
THE MOTION, AND EXPIRATION OF THE TIME TO APPEAL, THAT "MARKS THE END
OF A COURT PROCEEDING"; AND "THIS IS ALSO TRUE IN ADMINISTRATIVE
PROCEEDINGS."  BLACK RIVER VALLEY BROADCASTS V. MCNINCH, 69 APP. D.C.,
AT 316, 101 F.2D, AT 240. 

CONVENIENCE AND NECESSITY "FOR A LIMITED PERIOD OF TIME UNDER
SUBSECTION (D)(2) OF THAT SECTION."  ALTHOUGH THE BOARD DID NOT
EXPRESSLY SAY, IN ITS ORDER OF SEPTEMBER 30, 1958, THAT THE CERTIFICATE
THEREBY AUTHORIZED TO DELTA WOULD CONTINUE ONLY "FOR A LIMITED PERIOD
OF TIME," IT DID EXPRESSLY POINT OUT IN ITS ORDER OF NOVEMBER 28, 1958,
DENYING LAKE CENTRAL'S MOTION FOR A STAY AND PERMITTING THE DELTA
CERTIFICATE TO BECOME EFFECTIVE, THAT LAKE CENTRAL'S MOTION FOR
RECONSIDERATION WAS STILL PENDING UNDETERMINED, AND THAT IT PROMPTLY
WOULD "ADDRESS ITSELF TO THE MERITS OF THAT PETITION FOR
RECONSIDERATION, AND THAT ITS ORDER DEALING WITH THAT MATTER WOULD
ISSUE AT A LATER DATE."  HENCE, THE DELTA CERTIFICATE, THOUGH THUS
ALLOWED TO BECOME "EFFECTIVE," WAS, IN THE LAW'S REGARD, AS SURELY
"ISSUED FOR THE LIMITED PERIOD OF TIME" EXPIRING WITH THE DATE OF THE
POSSIBLE GRANT OF LAKE CENTRAL'S MOTION FOR RECONSIDERATION, AS IF THAT
LIMITATION HAD BEEN EXPRESSED IN THE BOARD'S AUTHORIZING ORDER AND
CERTIFICATE. 

HERE, AS IN WESTERN AIR LINES V. CIVIL AERONAUTICS BOARD, 194 F.2D,
211, 214 (C.A. 9TH CIR.), DELTA "ACTED WITH ITS EYES OPEN AND AT ITS
OWN RISK.  IT WAS AWARE THAT THE PROCEEDINGS BEFORE THE BOARD HAD NOT
BECOME FINAL, AND WOULD NOT UNTIL THE EXPIRATION OF THE PERIOD OF 30
DAYS WITHIN WHICH PETITIONS FOR RECONSIDERATION MIGHT BE FILED." 

SURELY LAKE CENTRAL'S TIMELY FILED MOTION FOR RECONSIDERATION KEPT
THE WHOLE PROCEEDING OPEN, INCLUDING THE BOARD'S ORDER AND RESULTING
CERTIFICATE, UNTIL THAT MOTION WAS DENIED.  IT WAS NOT DENIED. 
INSTEAD, IT WAS GRANTED, AS SURELY THE BOARD HAD POWER TO DO.
THEREFORE, THE BOARD'S ORIGINALLY "PROPOSED DECISION" NEVER DID BECOME
THE FINAL DECISION IN THE PROCEEDING.  AND WHEN THAT "PROPOSED
DECISION" THUS FELL, THE CERTIFICATE WHICH IT AUTHORIZED, AND WHICH HAD
BEEN PERMITTED TO BECOME TEMPORARILY "EFFECTIVE," NECESSARILY FELL WITH
IT, AS IT WAS ALWAYS SUBJECT TO THE RESULTS OF THAT MOTION. 

IT IS NOT TO BE GAINSAID THAT THE PRACTICE, SOMETIMES, AS HERE,
FOLLOWED BY THE BOARD, OF PERMITTING ROUTE CERTIFICATES TO BECOME
"EFFECTIVE" WHILE NONFRIVOLOUS MOTIONS FOR REHEARING OR RECONSIDERATION
ARE PENDING UNDETERMINED, (FN7) IS PERILOUS BUSINESS AND ONLY RARELY,
IF EVER, IS JUSTIFIED.  BUT IT DOES NOT FOLLOW THAT, ONCE HAVING
PERMITTED A ROUTE CERTIFICATE TO BECOME "EFFECTIVE," THE BOARD HAS LOST
ALL POWER TO DECIDE A PENDING MOTION FOR RECONSIDERATION, AND, IF FOUND
MERITORIOUS, TO GRANT IT, AND THUS ITSELF TO RECTIFY THE ERRORS IN ITS
"PROPOSED DECISION" AND IN THE ROUTE CERTIFICATE THAT WAS THEREBY
ERRONEOUSLY AUTHORIZED. 

FOR THESE REASONS, I THINK THE COURT HAS FALLEN INTO CLEAR ERROR IN
AFFIRMING THE JUDGMENT OF THE COURT BELOW, WHICH, IN MY VIEW, IS
CONTRARY TO THE SETTLED LAW AND SHOULD BE REVERSED. 

FN1  SECTION 401(F) OF THE FEDERAL AVIATION ACT (72 STAT. 755-756, 49
U.S.C. SEC. 1371(F)) PROVIDES, IN RELEVANT PART, AS FOLLOWS: 

"(F)   EACH CERTIFICATE SHALL BE EFFECTIVE FROM THE DATE SPECIFIED
THEREIN, AND SHALL CONTINUE IN EFFECT UNTIL SUSPENDED OR REVOKED AS
HEREAFTER PROVIDED, OR UNTIL THE BOARD SHALL CERTIFY THAT OPERATION
THEREUNDER HAS CEASED OR, IF ISSUED FOR A LIMITED PERIOD OF TIME UNDER
SUBSECTION (D)(2) OF THIS SECTION, SHALL CONTINUE IN EFFECT UNTIL THE
EXPIRATION THEREOF, UNLESS, PRIOR TO THE DATE OF EXPIRATION, SUCH
CERTIFICATE SHALL BE SUSPENDED OR REVOKED AS PROVIDED HEREIN, OR THE
BOARD SHALL CERTIFY THAT OPERATIONS THEREUNDER HAVE CEASED  ...  ." 

PROVIDES, IN RELEVANT PART, AS FOLLOWS: 

"(G)  THE BOARD UPON PETITION OR COMPLAINT OR UPON ITS OWN
INITIATIVE, AFTER NOTICE AND HEARINGS, MAY ALTER, AMEND, MODIFY, OR
SUSPEND ANY SUCH CERTIFICATE, IN WHOLE OR IN PART, IF THE PUBLIC
CONVENIENCE AND NECESSITY SO REQUIRE, OR MAY REVOKE ANY SUCH
CERTIFICATE, IN WHOLE OR IN PART, FOR INTENTIONAL FAILURE TO COMPLY
WITH ANY PROVISION OF THIS TITLE OR ANY ORDER, RULE OR REGULATION
ISSUED HEREUNDER OR ANY TERM, CONDITION, OR LIMITATION OF SUCH
CERTIFICATE  ...  ." 

FN2  SECTION 302.37(A) OF THE RULES OF PRACTICE OF THE CIVIL
AERONAUTICS BOARD, 14 CFR SEC. 302.37(A) (1956 REV. ED.), PROVIDES, IN
RELEVANT PART, AS FOLLOWS: 

"PETITION FOR RECONSIDERATION - (A) TIME FOR FILING.  A PETITION FOR
RECONSIDERATION, REHEARING OR REARGUMENT MAY BE FILED BY ANY PARTY TO A
PROCEEDING WITHIN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF A FINAL
ORDER BY THE BOARD IN SUCH PROCEEDING UNLESS THE TIME IS SHORTENED OR
ENLARGED BY THE BOARD, EXCEPT THAT SUCH PETITION MAY NOT BE FILED WITH
RESPECT TO AN INITIAL DECISION WHICH HAS BECOME FINAL THROUGH FAILURE
TO FILE EXCEPTIONS THERETO.  HOWEVER, NEITHER THE FILING NOR THE
GRANTING OF SUCH A PETITION SHALL OPERATE AS A STAY OF SUCH FINAL ORDER
UNLESS SPECIFICALLY SO ORDERED BY THE BOARD  ...  ." 

IN A RECENT REVISION OF ITS RULES, THE BOARD HAS REDUCED THE TIME
WITHIN WHICH A PETITION FOR RECONSIDERATION MAY BE FILED FROM 30 TO 20
DAYS.  SEE 14 CFR SEC. 302.37 (1960 SUPP.). 

49 U.S.C. SEC. 1486(A) PROVIDES THAT DECISIONS OF THE BOARD SHALL BE
SUBJECT TO REVIEW BY THE COURTS OF APPEALS UPON PETITION "FILED WITHIN
SIXTY DAYS AFTER THE ENTRY OF SUCH ORDER," BY ANY PERSON HAVING A
SUBSTANTIAL INTEREST IN THE ORDER. 

FN3  SEE NOTE 2. 

FN4  SEE SAGINAW BROADCASTING CO. V. FEDERAL COMMUNICATIONS COMM'N,
68 APP. D.C. 282, 287, 96 F.2D 554, 559; SOUTHLAND INDUSTRIES, INC., V.
FEDERAL COMMUNICATIONS COMM'N, 69 APP. D.C. 82, 99 F.2D 117; WOODMEN OF
WORLD LIFE INS. ASSN. V. FEDERAL COMMUNICATIONS COMM'N, 69 APP. D.C.
87, 99 F.2D 122; RED RIVER BROADCASTING CO. V. FEDERAL COMMUNICATIONS
COMM'N, 69 APP. D.C. 1, 98 F.2D 282. 

FN5  SEE WESTERN AIR LINES V. CIVIL AERONAUTICS BOARD, 196 F.2D 933
(C.A. 9TH CIR.); SOUTHWEST AIRWAYS CO. V. CIVIL AERONAUTICS BOARD, 196
F.2D 937; WESTERN AIR LINES V. CIVIL AERONAUTICS BOARD, 194 F.2D 211. 

FN6  IN OUTLAND V. CIVIL AERONAUTICS BOARD, SUPRA, THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA EXPOSED THE FALLACY IN,
AND SOUNDLY REJECTED THE REASONING OF, THE CONSOLIDATED FLOWERS CASE,
SUPRA, IN THE FOLLOWING LANGUAGE: 

"THE LEGISLATIVE HISTORY OF 5 U.S.C.A. SEC. 1009(C) INDICATES THAT IT
WAS ADOPTED TO ACHIEVE HARMONY WITH THE HOLDING IN LEVERS V. ANDERSON,
1945, 326 U.S. 219, 66 S. CT. 72, 90 L. ED. 26 TO THE EFFECT THAT A
MOTION FOR REHEARING WAS NOT NECESSARY TO EXHAUST ADMINISTRATIVE
REMEDIES.  HOWEVER, WHILE MAKING JUDICIAL REVIEW AVAILABLE WITHOUT A
MOTION FOR REHEARING, THAT STATUTE DID NOT OPERATE TO REPEAL THE LAW
WITH RESPECT TO FINALITY.  WHERE A MOTION FOR REHEARING IS IN FACT
FILED THERE IS NO FINAL ACTION UNTIL THE REHEARING IS DENIED, AS WE
SAID IN BRANIFF AIRWAYS, INC. V. CIVIL AERONAUTICS BOARD, SUPRA.
REACH FINALITY BY EXHAUSTION OF ADMINISTRATIVE REMEDIES; IT LEAVES THAT
TO EACH LITIGANT'S CHOICE.  BUT WHEN THE PARTY ELECTS TO SEEK A
REHEARING THERE IS ALWAYS A POSSIBILITY THAT THE ORDER COMPLAINED OF
WILL BE MODIFIED IN A WAY WHICH RENDERS JUDICIAL REVIEW UNNECESSARY. 
PRACTICAL CONSIDERATIONS, THEREFORE, DICTATE THAT WHEN A PETITION FOR
REHEARING IS FILED, REVIEW MAY PROPERLY BE DEFERRED UNTIL THIS HAS BEEN
ACTED UPON.  THE CONTRARY RESULT REACHED BY THE NINTH CIRCUIT HAS
CAUSED PARTIES TO FILE SO CALLED 'PROTECTIVE' PETITIONS FOR JUDICIAL
REVIEW WHILE PETITIONS FOR REHEARING BEFORE THE BOARD WERE PENDING.  A
WHOLE TRAIN OF UNNECESSARY CONSEQUENCES FLOWED FROM THIS:  THE BOARD
AND OTHER PARTIES MAY BE CALLED UPON TO RESPOND AND OPPOSE THE MOTION
FOR REVIEW; WHEN THE BOARD ACTS, THE PETITION FOR JUDICIAL REVIEW MUST
BE AMENDED TO BRING THE PETITION UP TO DATE. 

"WE HOLD THAT WHEN A MOTION FOR REHEARING IS MADE, THE TIME FOR
FILING A PETITION FOR JUDICIAL REVIEW DOES NOT BEGIN TO RUN UNTIL THE
MOTION FOR REHEARING IS ACTED UPON BY THE BOARD."  109 U.S. APP. D.C.,
AT 92-93, 284 F.2D, AT 227-228. 

FN7  IN MANY INSTANCES, THE BOARD HAS PERMITTED CERTIFICATES TO
BECOME EFFECTIVE NOTWITHSTANDING A MOTION OR MOTIONS FOR
RECONSIDERATION WERE PENDING UNDETERMINED.  AND IN A NUMBER OF SUCH
CASES, AS HERE, THE BOARD HAS GRANTED SUCH MOTIONS AND ACCORDINGLY
MODIFIED THE "EFFECTIVE" CERTIFICATE.  SEE, E.G., NORTH CENTRAL CASE, 8
C.A.B. 208; CINCINNATI-NEW YORK ADDITIONAL SERVICE, 8 C.A.B. 603;
UNITED-WESTERN, ACQUISITION OF AIR CARRIER PROPERTY, 11 C.A.B. 701;
SERVICE TO PHOENIX CASE, ORDER E-12039 (1957); SOUTH CENTRAL AREA LOCAL
SERVICE CASE, ORDER E-14219 (1959). 
..END :













HORTON V. LIBERTY MUTUAL INSURANCE CO. 367 U.S. 348 


NO. 478.  ARGUED MAY 3, 1961 - DECIDED JUNE 12, 1961 - 275 F.2D 148,
AFFIRMED. 


PETITIONER WAS INJURED WHILE WORKING IN TEXAS FOR AN EMPLOYER INSURED
BY RESPONDENT INSURANCE COMPANY.  UNDER THE TEXAS WORKMEN'S
COMPENSATION LAW, HE FILED A CLAIM WITH THE TEXAS INDUSTRIAL ACCIDENT
BOARD FOR $14,035.  THE BOARD AWARDED HIM ONLY $1,050.  BASING
JURISDICTION ON DIVERSITY OF CITIZENSHIP, RESPONDENT SUED IN A FEDERAL
DISTRICT COURT TO HAVE THE AWARD SET ASIDE, ALLEGING THAT PETITIONER
WAS ENTITLED TO NOTHING BUT HAD CLAIMED AND WOULD CLAIM $14,035. 
PETITIONER MOVED TO DISMISS THE SUIT ON THE GROUND THAT THE VALUE OF
THE "MATTER IN CONTROVERSY" WAS ONLY $1,050.  HELD:  THE "MATTER IN
CONTROVERSY" WAS MORE THAN $10,000, WITHIN THE MEANING OF 28 U.S.C.
SEC. 1332, AS AMENDED IN 1958, AND THE FEDERAL DISTRICT COURT HAD
JURISDICTION.  PP. 349-355. 

(A)  NOTWITHSTANDING THE 1958 AMENDMENT WHICH FORBADE THE REMOVAL OF
STATE WORKMEN'S COMPENSATION CASES FROM STATE COURTS TO FEDERAL
DISTRICT COURTS, THE DISTRICT COURT HAD JURISDICTION TO TRY THIS CIVIL
CASE ORIGINALLY FILED THEREIN, IF THE MATTER IN CONTROVERSY EXCEEDED
$10,000.  PP. 350-352. 

(B)  IN VIEW OF THE ALLEGATION IN RESPONDENT'S COMPLAINT THAT
PETITIONER HAD CLAIMED AND WOULD CLAIM $14,035 AND PETITIONER'S FAILURE
TO DENY THAT ALLEGATION OR TO DISCLAIM ANY PART OF HIS ORIGINAL CLAIM,
THE AMOUNT IN CONTROVERSY EXCEEDED $10,000.  PP. 352-354. 

(C)  UNDER THE TEXAS WORKMEN'S COMPENSATION LAW, AS CONSTRUED BY THE
STATE SUPREME COURT, THIS SUIT WAS NOT AN APPEAL FROM A STATE
ADMINISTRATIVE ORDER, AND ITS DISMISSAL BY THE DISTRICT COURT WAS NOT
SUPPORTABLE ON THE GROUND THAT IT WAS SUCH AN APPEAL.  PP. 354-355. 

HORTON V. LIBERTY MUTUAL INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS UNDER THAT PART OF 28 U.S.C. SEC. 1332, AS
AMENDED IN 1958, (FN1) WHICH GRANTS JURISDICTION TO UNITED STATES
DISTRICT COURTS OF ALL CIVIL ACTIONS BETWEEN CITIZENS OF DIFFERENT
STATES "WHERE THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF
$10,000, EXCLUSIVE OF INTEREST AND COSTS  ...  ." 

PETITIONER, HORTON, WAS INJURED WHILE WORKING FOR AN EMPLOYER IN
TEXAS INSURED BY THE RESPONDENT, LIBERTY MUTUAL INSURANCE COMPANY. 
PURSUANT TO THE TEXAS WORKMEN'S COMPENSATION LAW, (FN2) PETITIONER
FILED A CLAIM WITH THE TEXAS INDUSTRIAL ACCIDENT BOARD AGAINST HIS
EMPLOYER AND THE RESPONDENT INSURANCE COMPANY ALLEGING THAT HE HAD BEEN
TOTALLY AND PERMANENTLY INCAPACITATED AND CLAIMING THE MAXIMUM RECOVERY
UNDER THE LAW OF $35 PER WEEK FOR 401 WEEKS, OR A TOTAL OF $14,035. 
AFTER ADMINISTRATIVE HEARINGS THE BOARD DECIDED THAT PETITIONER WOULD
BE DISABLED FOR ONLY 30 WEEKS AND ACCORDINGLY MADE AN AWARD OF ONLY
$1,050.  SECTION 5 OF ART. 8307 OF THE TEXAS WORKMEN'S COMPENSATION LAW
PERMITS EITHER THE EMPLOYEE OR THE INSURANCE COMPANY, IF DISSATISFIED
WITH AN AWARD, TO "BRING SUIT IN THE COUNTY WHERE THE INJURY OCCURRED
TO SET ASIDE SAID FINAL RULING," IN WHICH EVENT THE ISSUES SHALL BE
DETERMINED "UPON TRIAL DE NOVO, AND THE BURDEN OF PROOF SHALL BE UPON
THE PARTY CLAIMING COMPENSATION," BUT IN NO EVENT SHALL THE COURT ALLOW
RECOVERY IN EXCESS OF THE STATUTORY MAXIMUM OF $14,035.  ACTING UNDER
THIS PROVISION OF STATE LAW, THE RESPONDENT, ON APRIL 30, 1959, THE
VERY DAY OF THE AWARD, FILED THIS DIVERSITY CASE IN THE UNITED STATES
DISTRICT COURT TO SET ASIDE THE AWARD, ALLEGING THAT PETITIONER HAD
CLAIMED, WAS CLAIMING AND WOULD CLAIM $14,035, BUT DENYING THAT
PETITIONER WAS ENTITLED TO RECOVER ANYTHING AT ALL UNDER TEXAS LAW. 
ONE WEEK LATER THE PETITIONER, WHO ALSO WAS DISSATISFIED WITH THE
AWARD, FILED AN ACTION IN THE STATE COURT TO SET ASIDE THE BOARD'S
AWARD AND TO RECOVER IN THAT COURT THE FULL $14,035.  AFTER THAT,
PETITIONER MOVED TO DISMISS THE RESPONDENT'S FEDERAL COURT SUIT ON THE
GROUND THAT THE VALUE OF THE "MATTER IN CONTROVERSY" WAS ONLY THE
AMOUNT OF THE AWARD, $1,050, AND NOT THE AMOUNT OF HIS CLAIM OF
$14,035, ALTHOUGH HE ALSO CONTEMPORANEOUSLY FILED, SUBJECT TO HIS
MOTION TO DISMISS, WHAT HE DESIGNATED AS A COMPULSORY COUNTERCLAIM
(FN3) FOR THE FULL AMOUNT HE HAD CLAIMED BEFORE THE TEXAS BOARD AND IN
HIS TEXAS STATE COURT SUIT.  THE DISTRICT COURT HELD THAT THE "MATTER
IN CONTROVERSY" IN THE FEDERAL ACTION WAS ONLY THE AMOUNT OF THE $1,050
AWARD THAT THE RESPONDENT COMPANY HAD ASKED THE COURT TO SET ASIDE.  IN
SO HOLDING THE DISTRICT COURT RELIED ON NATIONAL SURETY CORP. V.
CHAMBERLAIN, (FN4) IN WHICH ANOTHER DISTRICT COURT IN TEXAS HAD REACHED
THE SAME CONCLUSION AS TO JURISDICTION LARGELY ON THE BASIS OF WHAT IT
DEEMED TO HAVE BEEN THE PURPOSE OF CONGRESS IN ENACTING THE 1958
AMENDMENT TO 28 U.S.C. SEC. 1332, WHICH AMENDMENT RATHER SEVERELY CUT
DOWN THE JURISDICTION OF FEDERAL DISTRICT COURTS, PARTICULARLY IN STATE
WORKMEN'S COMPENSATION CASES.  THE COURT OF APPEALS REVERSED, (FN5) AND
WE GRANTED CERTIORARI TO DECIDE THE IMPORTANT JURISDICTIONAL QUESTIONS
RAISED UNDER THE 1958 AMENDMENT.  (FN6) 

FOR REASONS TO BE STATED, WE HOLD THAT THE DISTRICT COURT HAS
JURISDICTION OF THE CONTROVERSY. 

FIRST.  IT IS TRUE, AS THE CHAMBERLAIN OPINION POINTED OUT, THAT THE
PURPOSE AND EFFECT OF THE 1958 AMENDMENT WERE TO REDUCE CONGESTION IN
THE FEDERAL DISTRICT COURTS PARTIALLY CAUSED BY THE LARGE NUMBER OF
CIVIL CASES THAT WERE BEING BROUGHT UNDER THE LONG-STANDING $3,000
JURISDICTIONAL RULE.  THIS EFFORT TO REDUCE DISTRICT COURT CONGESTION
FOLLOWED YEARS OF STUDY BY THE UNITED STATES JUDICIAL CONFERENCE AND
THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, AS WELL AS BY
THE CONGRESS.  (FN7)  TO ACCOMPLISH THIS PURPOSE THE 1958 AMENDMENT
TOOK SEVERAL DIFFERENT BUT RELATED STEPS.  IT RAISED THE REQUISITE
JURISDICTIONAL AMOUNT FROM $3,000 TO $10,000 IN DIVERSITY AND FEDERAL
QUESTION CASES; IT PROVIDED THAT A CORPORATION IS TO BE DEEMED A
CITIZEN NOT ONLY OF THE STATE BY WHICH IT WAS INCORPORATED BUT ALSO OF
THE STATE WHERE IT HAS ITS PRINCIPAL PLACE OF BUSINESS; AND, MOST
IMPORTANTLY HERE, IT ALSO FOR THE FIRST TIME FORBADE THE REMOVAL OF
STATE WORKMEN'S COMPENSATION CASES FROM STATE COURTS TO UNITED STATES
DISTRICT COURTS.  BY GRANTING DISTRICT JUDGES A DISCRETIONARY POWER TO
IMPOSE COSTS ON A FEDERAL COURT PLAINTIFF IF HE SHOULD "RECOVER LESS
THAN THE SUM OR VALUE OF $10,000," THE AMENDMENT FURTHER MANIFESTED A
CONGRESSIONAL PURPOSE TO DISCOURAGE THE TRYING OF SUITS INVOLVING LESS
THAN $10,000 IN FEDERAL COURTS.  IN DISCUSSING THE QUESTION OF STATE
WORKMEN'S COMPENSATION CASES, THE SENATE REPORT ON THE AMENDMENT
EVIDENCED A CONCERN NOT ONLY ABOUT THE PROBLEM OF CONGESTION IN THE
FEDERAL COURTS, BUT ALSO ABOUT TRIAL BURDENS THAT CLAIMANTS MIGHT
SUFFER BY HAVING TO GO TO TRIAL IN FEDERAL RATHER THAN STATE COURTS DUE
TO THE FACT THAT THE STATE COURTS ARE LIKELY TO BE CLOSER TO AN INJURED
WORKER'S HOME AND MAY ALSO PROVIDE HIM WITH SPECIAL PROCEDURAL
ADVANTAGES IN WORKMEN'S COMPENSATION CASES.  (FN8) 

THE FOREGOING ARE SOME OF THE APPEALING CONSIDERATIONS THAT LED THE
DISTRICT COURT TO CONCLUDE THAT IT WOULD FRUSTRATE THE CONGRESSIONAL
PURPOSE TO PERMIT INSURERS TO FILE WORKMEN'S COMPENSATION SUITS IN
FEDERAL COURTS WHEN CONGRESS HAD DELIBERATELY PROVIDED THAT SUCH SUITS
COULD NOT BE REMOVED TO FEDERAL COURTS IF FILED BY CLAIMANTS IN STATE
COURTS.  BUT AFTER THE MOST DELIBERATE STUDY OF THE WHOLE PROBLEM BY
LAWYERS AND JUDGES AND AFTER ITS CONSIDERATION BY LAWYERS ON THE SENATE
JUDICIARY COMMITTEE IN THE LIGHT OF STATISTICS ON BOTH REMOVALS AND
ORIGINAL FILINGS, (FN9) CONGRESS USED LANGUAGE SPECIFICALLY BARRING
REMOVAL OF SUCH CASES FROM STATE TO FEDERAL COURTS AND AT THE SAME TIME
LEFT UNCHANGED THE OLD LANGUAGE WHICH JUST AS SPECIFICALLY PERMITS
CIVIL SUITS TO BE FILED IN FEDERAL COURTS IN CASES WHERE THERE ARE BOTH
DIVERSITY OF CITIZENSHIP AND THE PRESCRIBED JURISDICTIONAL AMOUNT.  IN
THIS SITUATION WE MUST TAKE THE INTENT OF CONGRESS WITH REGARD TO THE
FILING OF DIVERSITY CASES IN FEDERAL DISTRICT COURTS TO BE THAT WHICH
ITS LANGUAGE CLEARLY SETS FORTH.  CONGRESS COULD VERY EASILY HAVE USED
LANGUAGE TO BAR FILING OF WORKMEN'S COMPENSATION SUITS BY THE INSURER
AS WELL AS REMOVAL OF SUCH SUITS, AND IT COULD EASILY DO SO STILL.  WE
THEREFORE HOLD THAT UNDER THE PRESENT LAW THE DISTRICT COURT HAS
JURISDICTION TO TRY THIS CIVIL CASE BETWEEN CITIZENS OF DIFFERENT
STATES IF THE MATTER IN CONTROVERSY IS IN EXCESS OF $10,000. 

SECOND.  WE AGREE WITH PETITIONER THAT DETERMINATION OF THE VALUE OF
THE MATTER IN CONTROVERSY FOR PURPOSES OF FEDERAL JURISDICTION IS A
FEDERAL QUESTION TO BE DECIDED UNDER FEDERAL STANDARDS, (FN10) ALTHOUGH
THE FEDERAL COURTS MUST, OF COURSE, LOOK TO STATE LAW TO DETERMINE THE
NATURE AND EXTENT OF THE RIGHT TO BE ENFORCED IN A DIVERSITY CASE.  IT
THEREFORE IS NOT CONTROLLING HERE THAT TEXAS HAS HELD THAT THE CRUCIAL
FACTOR FOR ALLOCATING ITS CASES AMONG DIFFERENT STATE COURTS ON AN
AMOUNT-IN-CONTROVERSY BASIS IS THE AMOUNT ORIGINALLY CLAIMED BEFORE ITS
STATE COMPENSATION BOARD.  (FN11) 

THE GENERAL FEDERAL RULE HAS LONG BEEN TO DECIDE WHAT THE AMOUNT IN
CONTROVERSY IS FROM THE COMPLAINT ITSELF, UNLESS IT APPEARS OR IS IN
SOME WAY SHOWN THAT THE AMOUNT STATED IN THE COMPLAINT IS NOT CLAIMED
"IN GOOD FAITH."  (FN12)  IN DECIDING THIS QUESTION OF GOOD FAITH WE
HAVE SAID THAT IT "MUST APPEAR TO A LEGAL CERTAINTY THAT THE CLAIM IS
REALLY FOR LESS THAN THE JURISDICTIONAL AMOUNT TO JUSTIFY DISMISSAL." 
(FN13)  THE COMPLAINT OF THE RESPONDENT COMPANY FILED IN THE DISTRICT
COURT, WHILE DENYING ANY LIABILITY AT ALL AND ASKING THAT THE AWARD OF
$1,050 AGAINST IT BE SET ASIDE, ALSO ALLEGES THAT PETITIONER HORTON HAS
CLAIMED, NOW CLAIMS AND WILL CLAIM THAT HE HAS SUFFERED TOTAL AND
PERMANENT DISABILITY AND IS ENTITLED TO A MAXIMUM RECOVERY OF $14,035,
WHICH, OF COURSE, IS IN EXCESS OF THE $10,000 REQUISITE TO GIVE A
FEDERAL COURT JURISDICTION OF THIS CONTROVERSY.  NO DENIAL OF THESE
ALLEGATIONS IN THE COMPLAINT HAS BEEN MADE, NO ATTEMPTED DISCLAIMER OR
SURRENDER OF ANY PART OF THE ORIGINAL CLAIM HAS BEEN MADE BY
PETITIONER, AND THERE HAS BEEN NO OTHER SHOWING, LET ALONE A SHOWING
"TO A LEGAL CERTAINTY," OF ANY LACK OF GOOD FAITH ON THE PART OF THE
RESPONDENT IN ALLEGING THAT A $14,035 CLAIM IS IN CONTROVERSY.  IT
WOULD CONTRADICT THE WHOLE RECORD AS WELL AS THE ALLEGATIONS OF THE
COMPLAINT TO SAY THAT THIS DISPUTE INVOLVES ONLY $1,050.  THE CLAIM
BEFORE THE BOARD WAS $14,035; THE STATE COURT SUIT OF PETITIONER ASKED
THAT MUCH; THE CONDITIONAL COUNTERCLAIM IN THE FEDERAL COURT CLAIMS THE
SAME AMOUNT.  TEXAS LAW UNDER WHICH THIS CLAIM WAS CREATED AND HAS ITS
BEING LEAVES THE ENTIRE $14,035 CLAIM OPEN FOR ADJUDICATION IN A DE
NOVO COURT TRIAL, REGARDLESS OF THE AWARD.  THUS THE RECORD BEFORE US
SHOWS BEYOND A DOUBT THAT THE AWARD IS CHALLENGED BY BOTH PARTIES AND
IS BINDING ON NEITHER; THAT PETITIONER CLAIMS MORE THAN $10,000 FROM
THE RESPONDENT AND THE RESPONDENT DENIES IT SHOULD HAVE TO PAY
PETITIONER ANYTHING AT ALL.  NO MATTER WHICH PARTY BRINGS IT INTO
COURT, THE CONTROVERSY REMAINS THE SAME; IT INVOLVES THE SAME AMOUNT OF
MONEY AND IS TO BE ADJUDICATED AND DETERMINED UNDER THE SAME RULES. 
UNQUESTIONABLY, THEREFORE, THE AMOUNT IN CONTROVERSY IS IN EXCESS OF
$10,000. 

THIRD.  PETITIONER CONTENDS, HOWEVER, THAT EVEN THOUGH THE AMOUNT IN
CONTROVERSY IS MORE THAN $10,000, THE SUIT FILED BY THE COMPANY IS
NOTHING MORE THAN AN APPEAL FROM A STATE ADMINISTRATIVE ORDER, THAT A
FEDERAL DISTRICT COURT HAS NO APPELLATE JURISDICTION AND THAT THE
DISMISSAL OF THE CASE BY THE DISTRICT COURT THEREFORE IS SUPPORTABLE ON
THAT GROUND.  THIS CONTENTION RESTS ALMOST ENTIRELY ON CHICAGO,
R.I.&P.R. CO. V. STUDE, 346 U.S. 574, 581, WHICH HELD THAT A UNITED
STATES DISTRICT COURT WAS WITHOUT JURISDICTION TO CONSIDER AN APPEAL
"TAKEN ADMINISTRATIVELY OR JUDICIALLY IN A STATE PROCEEDING."  ASIDE
FROM MANY OTHER RELEVANT DISTINCTIONS WHICH NEED NOT BE POINTED OUT,
THE STUDE CASE IS WITHOUT WEIGHT HERE BECAUSE, AS SHOWN BY THE TEXAS
SUPREME COURT'S INTERPRETATION OF ITS COMPENSATION ACT: 

"THE SUIT TO SET ASIDE AN AWARD OF THE BOARD IS IN FACT A SUIT, NOT
AN APPEAL.  IT IS FILED AS ANY OTHER SUIT IS FILED AND WHEN FILED THE
SUBJECT MATTER IS WITHDRAWN FROM THE BOARD."  (FN14) 

IT IS TRUE THAT AS CONDITIONS PRECEDENT TO FILING A SUIT A CLAIM MUST
HAVE BEEN FILED WITH THE BOARD AND THE BOARD MUST HAVE MADE A FINAL
RULING AND DECISION.  BUT THE TRIAL IN COURT IS NOT AN APPELLATE
PROCEEDING.  IT IS A TRIAL DE NOVO WHOLLY WITHOUT REFERENCE TO WHAT MAY
HAVE BEEN DECIDED BY THE BOARD.  (FN15) 

THE COURT OF APPEALS WAS RIGHT IN HOLDING THAT THE DISTRICT COURT HAD
JURISDICTION OF THIS CASE AND ITS JUDGMENT IS AFFIRMED. 

FN1  ACT OF JULY 25, 1958, 72 STAT. 415. 

FN2  VERNON'S TEX ANN. CIV. STAT., ARTS. 8306-8309. 

FN3  WITH EXCEPTIONS NOT HERE RELEVANT, RULE 13(A) OF THE FEDERAL
RULES OF CIVIL PROCEDURE REQUIRES A PARTY TO FILE A COUNTERCLAIM
ARISING OUT OF THE TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT OF THE
OPPOSING PARTY'S CLAIM. 

FN4  171 F. SUPP. 591. 

FN5  275 F.2D 148. 

FN6  364 U.S. 814. 

FN7  SEE H.R. REP. NO. 1706, 85TH CONG., 2D SESS.; S. REP. NO. 1830,
85TH CONG., 2D SESS.; HEARINGS ON H.R. 2516 AND H.R. 4497, SUBCOMMITTEE
OF HOUSE COMMITTEE ON THE JUDICIARY, 85TH CONG., 1ST SESS.  WITH
PARTICULAR REFERENCE TO THE PROVISION BARRING REMOVAL OF STATE
WORKMEN'S COMPENSATION CASES, SEE 104 CONG. REC. 12689-12690; S. REP.
NO. 1830, SUPRA, P. 9; ANNUAL REPORT OF THE PROCEEDINGS OF THE JUDICIAL
CONFERENCE OF THE UNITED STATES, 1957, P. 15. 

FN8  S. REP. NO. 1830, 85TH CONG., 2D SESS., PP. 8-9. 

FN9  SEE, ID., P. 8. 

FN10  SEE, E.G., SHAMROCK OIL CORP. V. SHEETS, 313 U.S. 100, 104. 

FN11  BOOTH V. TEXAS EMPLOYERS' INS. ASSN., 132 TEX. 237, 252, 123
S.W.2D 322, 331. 

FN12  ST. PAUL MERCURY INDEMNITY CO. V. RED CAB CO., 303 U.S. 283,
288, AND CASES THERE CITED. 

FN13  ID., AT 289.  SEE ALSO BELL V. PREFERRED LIFE ASSURANCE
SOCIETY, 320 U.S. 238, 240; AETNA CASUALTY CO. V. FLOWERS, 330 U.S.
464, 468. 

FN14  BOOTH V. TEXAS EMPLOYERS' INS. ASSN., 132 TEX. 237, 246, 123
S.W.2D 322, 328. 

FN15  THE CHARACTER OF THE LAWSUIT IS FURTHER ILLUMINATED BY
DECISIONS OF THE TEXAS SUPREME COURT HOLDING THAT THE ADMINISTRATIVE
AWARD BECOMES VACATED AND UNENFORCEABLE ONCE THE COURT HAS ACQUIRED
JURISDICTION OF THE CAUSE AND THE PARTIES EVEN IF A VOLUNTARY NONSUIT
IS TAKEN AND THE CASE DISMISSED WITHOUT JUDGMENT ON THE MERITS.  ZURICH
GENERAL ACCIDENT CO. V. RODGERS, 128 TEX. 313, 97 S.W.2D 674; TEXAS
RECIPROCAL INS. ASSN. V. LEGER, 128 TEX. 319, 97 S.W.2D 677.  THIS
MAKES IT ALL THE MORE CLEAR THAT THE MATTER IN CONTROVERSY BETWEEN THE
PARTIES TO THE SUIT IS NOT MERELY WHETHER THE AWARD WILL BE SET ASIDE
SINCE THE SUIT AUTOMATICALLY SETS IT ASIDE FOR DETERMINATION OF
LIABILITY DE NOVO.    MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE,
MR. JUSTICE BRENNAN AND MR. JUSTICE STEWART JOIN, DISSENTING. 

THE COURT TURNS A NEW FURROW IN THE FIELD OF DIVERSITY JURISDICTION
TODAY AND, IN SO DOING, PLOWS UNDER A RULE OF ALMOST A QUARTER OF A
CENTURY'S STANDING - THE RULE THAT IN DETERMINING JURISDICTION, "THE
SUM CLAIMED BY THE PLAINTIFF CONTROLS IF THE CLAIM IS APPARENTLY MADE
IN GOOD FAITH."  ST. PAUL INDEMNITY CO. V. RED CAB CO., 303 U.S. 283,
288 (1938).  HERE THE RESPONDENT INSURANCE COMPANY FILED SUIT "TO SET
ASIDE" AN AWARD OF $1,050 GIVEN HORTON BY THE TEXAS INDUSTRIAL ACCIDENT
BOARD.  THE COURT, INSTEAD OF TESTING THE JURISDICTIONAL AMOUNT BY THIS
SUM, LOOKS INSTEAD TO ALLEGATIONS OF THE INSURANCE COMPANY THAT HORTON,
THE DEFENDANT IN THE ACTION, "WILL CLAIM THE SUM OF ($14,035)  ...  ." 
THIS IS THE FIRST TIME THE COURT HAS LET A PLAINTIFF AFFIX JURISDICTION
BY PROPHESYING WHAT THE DEFENDANT WOULD OR MIGHT CLAIM, RATHER THAN BY
STATING WHAT THE PLAINTIFF ITSELF DID CLAIM.  IN SO GENEROUSLY
CONSTRUING THE STATUTE, THE COURT CONFOUNDS THE TEST HERETOFORE APPLIED
IN DIVERSITY CASES.  IT ALSO NULLIFIES THE RESULT OF "YEARS OF STUDY BY
THE UNITED STATES JUDICIAL CONFERENCE AND THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS, AS WELL AS BY THE CONGRESS," ANTE, P. 351, IN
THE ADOPTION OF THE ACT OF JULY 25, 1958, 72 STAT. 415, INCREASING THE
JURISDICTIONAL AMOUNT IN DIVERSITY CASES TO $10,000.  ONCE AGAIN THE
UNITED STATES DISTRICT COURTS IN TEXAS WILL BE FLOODED BY COMPENSATION
CASES, (FN1) AND THE CONGRESS ONCE AGAIN WILL BE OBLIGED TO AMEND THE
DIVERSITY STATUTE.  MOREOVER, TODAY'S DECISION PRACTICALLY WIPES OUT
THE LONG-EXISTING DISTINCTION BETWEEN DECLARATORY JUDGMENT ACTIONS AND
CONVENTIONAL SUITS.  SEE 28 U.S.C. SEC. 2201.  FOR THESE REASONS I MUST
DISSENT. 

PETITIONER, AN INJURED WORKMAN, FILED A CLAIM UNDER THE TEXAS
WORKMEN'S COMPENSATION ACT BEFORE THE TEXAS INDUSTRIAL ACCIDENT BOARD
FOR THE MAXIMUM ALLOWABLE RECOVERY, $14,035 (401 WEEKS AT $35 PER
WEEK).  THE BOARD, AFTER A HEARING, AWARDED PETITIONER $1,050 ($35 PER
WEEK FOR 30 WEEKS).  WITHIN HOURS OF THE AWARD, RESPONDENT, THE
COMPENSATION INSURER, LITERALLY RACED INTO FEDERAL DISTRICT COURT AND
FILED SUIT TO SET ASIDE THE BOARD'S DECISION.  THE DIVERSITY ACTION WAS
BROUGHT PURSUANT TO VERNON'S TEX. ANN. CIV. STAT., ART. 8307, SEC. 5,
WHICH ALLOWS THE ISSUES TO BE DETERMINED "UPON TRIAL DE NOVO, (WHERE)
...  THE BURDEN OF PROOF SHALL BE UPON THE PARTY CLAIMING
COMPENSATION."  UPON PETITIONER'S MOTION, THE DISTRICT COURT DISMISSED
THE ACTION FOR LACK OF JURISDICTION.  THE COURT OF APPEALS REVERSED. 

THE JURISDICTIONAL LIMITS OF FEDERAL DISTRICT COURTS ARE BOUNDED ON
ONE SIDE BY THE CONSTITUTION AND ON THE OTHER BY THE ENACTMENTS OF
CONGRESS.  ONLY THAT JUDICIAL POWER EXPRESSLY GRANTED BY STATUTE MAY BE
EXERCISED BY THE NISI PRIUS COURTS.  LOCKERTY V. PHILLIPS, 319 U.S. 182
(1943); KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226 (1922); SHELDON
V. SILL, 8 HOW.  441 (1850).  IN THE LIGHT OF SUCH HISTORY, THIS COURT
HAS REPEATEDLY HELD THAT SUCH JURISDICTION IS TO BE NARROWLY
INTERPRETED.  "THE POLICY OF THE (DIVERSITY) STATUTE CALLS FOR ITS
STRICT CONSTRUCTION."  HEALY V. RATTA, 292 U.S. 263, 270 (1934).  SEE
INDIANAPOLIS V. CHASE NATIONAL BANK, 314 U.S. 63 (1941); ST. PAUL
INDEMNITY CO. V. RED CAB CO., SUPRA. 

THE ARGUMENT THAT THE FEDERAL COURT, IN DIVERSITY CASES, IS JUST
ANOTHER STATE COURT IS INAPPOSITE HERE.  AS THE COURT POINTS OUT, THE
DETERMINATION OF WHETHER A CASE COMES WITHIN THE JURISDICTION OF A
DISTRICT COURT "IS A FEDERAL QUESTION TO BE DECIDED UNDER FEDERAL
STANDARDS."  ANTE, P. 352.  THE JURISDICTIONAL STATUTE, "WHICH IS
NATIONWIDE IN ITS OPERATION, WAS INTENDED TO BE UNIFORM IN ITS
APPLICATION, UNAFFECTED BY LOCAL LAW DEFINITION OR CHARACTERIZATION OF
THE SUBJECT MATTER TO WHICH IT IS TO BE APPLIED."  SHAMROCK OIL CORP.
V. SHEETS, 313 U.S. 100, 104 (1941).  REGARDLESS OF THE METHOD USED BY
THE TEXAS COURTS TO DETERMINE THE JURISDICTIONAL AMOUNTS FOR SUCH
CASES, WE MUST SCRUPULOUSLY APPLY THE STANDARD SET BY CONGRESS FOR
FEDERAL COURTS. 

THE STATUTE CONFERRING JURISDICTION ON DISTRICT COURTS IN SUITS
BETWEEN PARTIES OF DIVERSE CITIZENSHIP LIMITS IT TO THOSE ACTIONS
"WHERE THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF $10,000,
EXCLUSIVE OF INTEREST AND COSTS  ...  ."  28 U.S.C. SEC. 1332(A).  IN
MOST CASES, THE DETERMINATION OF THE AMOUNT IN CONTROVERSY IS
EXCEEDINGLY SIMPLE, E.G., LIQUIDATED DAMAGES.  HOWEVER, WHERE THE
RELIEF SOUGHT IS DIFFICULT TO DEFINE IN TERMS OF MONEY, OR IS OF
DIFFERING VALUE TO THE PARTIES, THE STATUTE DOES NOT ADMIT OF READY
APPLICATION.  TO CLARIFY THESE SITUATIONS, THIS COURT, IN ST. PAUL
INDEMNITY CO. V. RED CAB CO., SUPRA, AT 288, STATED:  "UNLESS THE LAW
GIVES A DIFFERENT RULE, THE SUM CLAIMED BY THE PLAINTIFF CONTROLS IF
THE CLAIM IS APPARENTLY MADE IN GOOD FAITH." 

THE APPLICATION OF THE FOREGOING RULES TO THE PROBLEM HERE RESULTS IN
A SIMPLE SOLUTION.  AT THE TIME RESPONDENT FILED ITS COMPLAINT, THERE
WAS ENFORCEABLE AGAINST IT A LIABILITY IN THE AMOUNT OF $1,050.  IF
PETITIONER DEFAULTED, THE DISTRICT COURT WOULD SET ASIDE THE BOARD
AWARD.  IF RESPONDENT LOST AND PETITIONER FILED NO COUNTERCLAIM, THE
JUDGMENT COULD ONLY BE FOR $1,050.  IT WAS ONLY IF PETITIONER
COUNTERCLAIMED FOR AN AMOUNT IN EXCESS OF THE JURISDICTIONAL AMOUNT OF
$10,000, THAT RESPONDENT COULD HAVE CONTROVERTED A CLAIM COGNIZABLE IN
FEDERAL COURT.  IT SEEMS IMPOSSIBLE TO AVOID THE CONCLUSION THAT THE
COURT IS ALLOWING DIVERSITY JURISDICTION TO BE PREDICATED UPON A
COUNTERCLAIM WHICH MIGHT POSSIBLY BE FILED BY PETITIONER.  EVEN A
"DISCLAIMER OR SURRENDER OF A  ...  PART OF THE ORIGINAL CLAIM" WOULD
NOT CHANGE THE COURT'S INSISTENCE UPON LOOKING TO THE ALLEGED
COUNTERCLAIM IF THAT WERE MORE THAN THE RESPONDENT'S CLAIM, FOR THE
JURISDICTIONAL MINIMUM.  APPARENTLY THE COURT WOULD REQUIRE A "DENIAL
OF THESE ALLEGATIONS" THAT PETITIONER WILL CLAIM AN AMOUNT IN EXCESS OF
THE JURISDICTIONAL LIMIT BEFORE CONSIDERING THE RESPONDENT'S PRAYER TO
SET ASIDE THE BOARD'S AWARD AS THE SOURCE OF THE JURISDICTIONAL
AMOUNT.  ANTE, P. 353.  NOT ONLY IS THIS IN PATENT CONFLICT WITH ST.
PAUL INDEMNITY CO. V. RED CAB CO., SUPRA, BUT IT DISTORTS THE MEANING
OF RULE 3, FEDERAL RULES OF CIVIL PROCEDURE, WHICH STATES, "(A) CIVIL
ACTION IS COMMENCED BY FILING A COMPLAINT WITH THE COURT."  HERE THE
COURT EVIDENTLY HOLDS THAT IF THE COMPLAINT, INSUFFICIENT TO MEET THE
JURISDICTIONAL STANDARDS, ALLEGES THAT A POSSIBLE COMPULSORY
COUNTERCLAIM, SUFFICIENT TO MEET SUCH STANDARDS, MAY BE FILED BY THE
DEFENDANT, FEDERAL JURISDICTION ATTACHES.  CERTAINLY WE HAVE NEVER
PERMITTED A DISTRICT COURT TO ACQUIRE JURISDICTION UNDER 28 U.S.C. SEC.
1331(A) (FN2) WHERE THE PLAINTIFF DOES NOT ALLEGE A FEDERAL QUESTION
BUT CLAIMS THAT THE DEFENDANT WILL RAISE SUCH AN ISSUE.  "WHETHER A
CASE IS ONE (INVOLVING A FEDERAL QUESTION)  ...  MUST BE DETERMINED
FROM WHAT NECESSARILY APPEARS IN THE PLAINTIFF'S STATEMENT OF HIS OWN
CLAIM IN THE BILL OR DECLARATION, UNAIDED BY ANYTHING ALLEGED IN
ANTICIPATION OF AVOIDANCE OF DEFENSES WHICH IT IS THOUGHT THE DEFENDANT
MAY INTERPOSE."  TAYLOR V. ANDERSON, 234 U.S. 74, 75-76 (1914).  SEE
SKELLY OIL CO. V. PHILLIPS PETROLEUM CO., 339 U.S. 667 (1950); FIRST
NATIONAL BANK V. WILLIAMS, 252 U.S. 504 (1920); LOUISVILLE & N.R. CO.
V. MOTTLEY, 211 U.S. 149 (1908).  TO ALLOW SUCH A PROCEDURE IN
DIVERSITY CASES IS TO UNBALANCE THE ENTIRE JURISDICTIONAL PATTERN. 

IN ESSENCE, THE COURT HAS PERMITTED RESPONDENT TO TURN ITS SUIT INTO
AN ACTION FOR A DECLARATORY JUDGMENT WITHOUT MEETING THE REQUIREMENTS
OF THE DECLARATORY JUDGMENT ACT.  28 U.S.C. SEC. 2201.  THAT ACT
PROVIDES THAT "IN A CASE OF ACTUAL CONTROVERSY WITHIN ITS JURISDICTION
...  ANY COURT OF THE UNITED STATES, UPON THE FILING OF AN APPROPRIATE
PLEADING, MAY DECLARE THE RIGHTS AND OTHER LEGAL RELATIONS OF ANY
INTERESTED PARTY SEEKING SUCH DECLARATION  ...  ." 

THE COMPLAINT FILED IN THE DISTRICT COURT WAS NOT STYLED A
DECLARATORY JUDGMENT ACTION, AND IT DID NOT SEEK SUCH RELIEF.  MORE
IMPORTANTLY, RESPONDENT HAS SUCCEEDED IN AVOIDING THE ELEMENT OF
DISCRETION PERMITTED BY THE STATUTE.  SEE BRILLHART V. EXCESS INS. CO.,
316 U.S. 491 (1942).  DECLARATORY RELIEF IS A PROCEDURAL REMEDY AND,
THEREFORE, THE CONSTRUCTION OF THE ACT IS A FEDERAL MATTER.  SEE AETNA
LIFE INS. CO. V. HAWORTH, 300 U.S. 227 (1937).  WHETHER OR NOT SUCH
RELIEF SHOULD BE GRANTED DOES NOT DEPEND UPON WHETHER THE STATE COURTS
WOULD EXERCISE THEIR DISCRETION TO GRANT A DECLARATORY JUDGMENT IN THE
SAME SITUATION.  (FN3)  DIFFERING FACTORS ARE PERTINENT TO THE
DISCRETIONARY DECISIONS OF THE TWO SEPARATE JUDICIAL SYSTEMS, STATE AND
FEDERAL.  IN THE LATTER SYSTEM, DISCRETIONARY REFUSAL TO ENTERTAIN THE
ACTION FREQUENTLY OCCURS WHEN THE SUIT INVOLVES A STATE STATUTE, SUCH
AS THE ONE HERE.  SEE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450
(1945).  MOREOVER, IT IS EVEN QUESTIONABLE WHETHER RESPONDENT HAS
SATISFIED THE JURISDICTIONAL AMOUNT REQUIREMENT FOR SUCH ACTIONS.  SEE
TRAVELERS INS. CO. V. GREENFIELD, 154 F.2D 950; NEW YORK LIFE INS. CO.
V. GREENFIELD, 154 F.2D 953; COMMERCIAL CASUALTY INS. CO. V. FOWLES,
154 F.2D 884; MUTUAL LIFE INS. CO. V. MOYLE, 116 F.2D 434.  THAT THE
DECLARATORY JUDGMENT ACT IN NO WAY AFFECTS THE JURISDICTIONAL
REQUIREMENTS FOR FEDERAL COURTS IS CLEAR.  "TO SANCTION SUITS FOR
DECLARATORY RELIEF AS WITHIN THE JURISDICTION OF THE DISTRICT COURTS
MERELY BECAUSE  ...  ARTFUL PLEADING ANTICIPATES A DEFENSE BASED ON
FEDERAL LAW WOULD CONTRAVENE THE WHOLE TREND OF JURISDICTIONAL
LEGISLATION BY CONGRESS, DISREGARD THE EFFECTIVE FUNCTIONING OF THE
FEDERAL JUDICIAL SYSTEM AND DISTORT THE LIMITED PROCEDURAL PURPOSE OF
THE DECLARATORY JUDGMENT ACT."  SKELLY OIL CO. V. PHILLIPS PETROLEUM
CO., SUPRA, AT 673-674. 

FINALLY, TODAY'S DECISION EFFECTIVELY EMASCULATES THE RECENT
CONGRESSIONAL ATTEMPT TO LIMIT DIVERSITY JURISDICTION, ESPECIALLY IN
WORKMEN'S COMPENSATION CASES.  IN ORDER TO DECREASE "THE WORKLOAD OF
THE FEDERAL COURTS," WHICH "HAS GREATLY INCREASED BECAUSE OF THE
REMOVAL OF WORKMEN'S COMPENSATION CASES FROM THE STATE COURTS TO THE
FEDERAL COURTS," THE JUDICIAL CONFERENCE OF THE UNITED STATES URGED THE
PASSAGE OF THE CURRENT LEGISLATION.  S. REP. NO. 1830, 85TH CONG., 2D
SESS. 7.  WORKMEN'S COMPENSATION CASES WERE SINGLED OUT AND
SPECIFICALLY DEALT WITH BECAUSE THEY "ARISE AND EXIST ONLY BY VIRTUE OF
STATE LAWS.  NO FEDERAL QUESTION IS INVOLVED AND NO LAW OF THE UNITED
STATES IS INVOLVED IN THESE CASES."  ID., AT 8.  TO ACCOMPLISH THE
DESIRED RESULT OF RESTRICTING FEDERAL DIVERSITY JURISDICTION, CONGRESS
RAISED THE MINIMUM JURISDICTIONAL AMOUNT FROM $3,000 TO $10,000. 
CORPORATIONS WERE DEEMED CITIZENS OF MORE THAN ONE STATE AND REMOVAL OF
WORKMEN'S COMPENSATION CASES TO FEDERAL COURTS WAS FORBIDDEN. 

TO FURTHER LIMIT THE NUMBER OF DIVERSITY CASES, THE CONGRESS ENACTED
28 U.S.C. SEC. 1332(B), WHICH PROVIDES THAT: 

"WHERE THE PLAINTIFF WHO FILES THE CASE ORIGINALLY IN THE FEDERAL
COURTS IS FINALLY ADJUDGED TO BE ENTITLED TO RECOVER LESS THAN THE SUM
OR VALUE OF $10,000, COMPUTED WITHOUT REGARD TO ANY  ... COUNTERCLAIM
TO WHICH THE DEFENDANT MAY BE ADJUDGED TO BE ENTITLED,  ...  THE
DISTRICT COURT  ... MAY IMPOSE COSTS ON THE PLAINTIFF." 

THIS PROVISION MAKES LITTLE SENSE WHEN APPLIED TO THE RESULT NOW
APPROVED BY THE COURT.  IF RESPONDENT WERE TO OBTAIN THE RELIEF IT
SOUGHT, NAMELY, TO HAVE THE BOARD'S AWARD OF LESS THAN $10,000
"VACATED, SET ASIDE, VOIDED AND DECLARED TO BE OF NO FURTHER FORCE AND
EFFECT," IT IS CLEAR THAT COSTS COULD BE ASSESSED AGAINST IT UNDER SEC.
1332(B).  THIS PRODUCES AN ANOMALOUS SITUATION WHICH THE COURT MUST
IMPLICITLY APPROVE.  RESPONDENT HAS NO HOPE OF AVOIDING POSSIBLE
LIABILITY UNDER THE COST SANCTION OF SEC. 1332(B).  THIS IS SO BECAUSE
THE RELIEF IT OBTAINS MUST BE MEASURED AGAINST THE JURISDICTIONAL
MINIMUM "WITHOUT REGARD" FOR HORTON'S POSSIBLE COUNTERCLAIM.  WE ARE
THEREFORE LEFT WITH THE STRANGE RESULT THAT WHILE RESPONDENT HAS MET
THE REQUIREMENTS OF SEC. 1332(A), YET UNDER SEC. 1332(B) IT WILL BE
LIABLE FOR COSTS FOR FAILING TO MEET THE SAME REQUIREMENTS. 

MOREOVER, THE SENATE REPORT EXPRESSED CONCERN FOR THE PROBLEMS OF THE
INJURED EMPLOYEE IN FEDERAL COURT. 

"SOME OF THESE STATE (WORKMEN'S COMPENSATION) STATUTES LIMIT THE
VENUE TO THE PLACE WHERE THE ACCIDENT OCCURRED OR TO THE DISTRICT OF
THE WORKMAN'S RESIDENCE.  WHEN REMOVED TO THE FEDERAL COURT THE VENUE
PROVISIONS OF THE STATE STATUTE CANNOT BE APPLIED.  VERY OFTEN CASES
REMOVED TO THE FEDERAL COURTS REQUIRE THE WORKMAN TO TRAVEL LONG
DISTANCES AND TO BRING HIS WITNESSES AT GREAT EXPENSE.  THIS PLACES AN
UNDUE BURDEN UPON THE WORKMAN AND VERY OFTEN THE WORKMAN SETTLES HIS
CLAIM BECAUSE HE CANNOT AFFORD THE LUXURY OF A TRIAL IN FEDERAL
COURT."  S. REP. NO. 1830, 85TH CONG., 2D SESS. 9. 

WHILE 28 U.S.C. SEC. 1332 DOES NOT SPECIFICALLY PROHIBIT THE FILING
OF ORIGINAL WORKMEN'S COMPENSATION CASES, A CLEARER EXPRESSION OF
CONGRESSIONAL DISLIKE FOR SADDLING FEDERAL COURTS WITH SUCH CASES COULD
HARDLY BE IMAGINED.  WE SHOULD, THEREFORE, GIVE EFFECT TO THIS POLICY
WHEREVER POSSIBLE.  NOT ONLY DOES THE DECISION TODAY FAIL TO DO THIS,
BUT THE COURT GOES OUT OF ITS WAY TO DEFEAT THE CONGRESSIONAL INTENT. 
THE STATEMENT THAT "THE WORKMAN HAS THE OPTION TO FILE HIS CASE IN
EITHER THE FEDERAL OR THE STATE COURT," S. REP. NO. 1830, 85TH CONG.,
2D SESS. 9, IS NO LONGER CORRECT.  IT IS NOW AN UNEQUAL RACE TO THE
COURTHOUSE DOOR - A RACE WHICH THE INSURERS WILL INVARIABLY WIN, SINCE
THEY HAVE RESIDENT COUNSEL IN AUSTIN (THE LOCATION OF THE TEXAS
INDUSTRIAL ACCIDENT BOARD) WHO QUICKLY SECURE NEWS OF BOARD AWARDS AND
ARE THUS ENABLED TO "BEAT" THE WORKMAN IN THE CHOICE OF FORUMS.  THUS,
THE COURT - CONTRARY TO THE SPECIFICALLY EXPRESSED INTENTION OF THE
CONGRESS - GRANTS THE INSURANCE COMPANIES THE OPTION OF GOING INTO
FEDERAL COURT, WITH ALL ITS ATTENDANT DIFFICULTIES TO THE ALREADY
OVERBURDENED FEDERAL JUDICIARY AND THE IMPECUNIOUS WORKMAN.  WE THOUGHT
DIFFERENTLY IN 1957, WHEN WE REFUSED TO "READ LEGISLATION WITH A
JAUNDICED EYE," SAYING THAT "IT WILL NOT DO FOR US TO TELL THE CONGRESS
'WE SEE WHAT YOU WERE DRIVING AT BUT YOU DID NOT USE CHOICE WORDS TO
DESCRIBE YOUR PURPOSE.'"  UNITED STATES V. UNION PACIFIC R. CO., 353
U.S. 112, 118.  CONGRESS CLOSED THE BACK DOOR AND LOCKED IT TIGHT IN
1958, ONLY TO HAVE THE COURT BREAK DOWN THE FRONT DOOR TODAY AND HANG
OUT THE WELCOME SIGN.    FN1  IN 1957, 2,147 WORKMEN'S COMPENSATION
CASES WERE COMMENCED IN THE UNITED STATES DISTRICT COURTS OF TEXAS.  S.
REP. NO. 1830, 85TH CONG., 2D SESS. 8. 

FN2  "THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL
CIVIL ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR
VALUE OF $10,000 EXCLUSIVE OF INTEREST AND COSTS, AND ARISES UNDER THE
CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES." 

FN3  THE ARGUMENT THAT THE SUIT HERE IS NOT REALLY ONE TO SET ASIDE
THE BOARD AWARD (BECAUSE THE MOMENT IT WAS FILED THAT AWARD WAS VOIDED
AND THE SUIT IS, IN REALITY, A NEW PROCEEDING IN WHICH THE WORKMAN MUST
ESTABLISH LIABILITY), WHEN COUPLED WITH THE RESULT HERE, LEADS TO THE
TOTAL ABANDONMENT OF THE RULE OF ST. PAUL INDEMNITY CO. V. RED CAB CO.,
303 U.S. 283 (1938).  IT WOULD PERMIT JURISDICTION TO BE ESTABLISHED BY
THE PLAINTIFF'S ALLEGATION THAT AT SOME PRIOR TIME THE DEFENDANT HAD
CLAIMED, EVEN IF ONLY EXTRAJUDICIALLY, AN AMOUNT EQUAL TO THE
JURISDICTIONAL MINIMUM. 
..END :





















GORI V. UNITED STATES 367 U.S. 364 


NO. 486.  ARGUED MAY 3, 1961 - DECIDED JUNE 12, 1961 - 282 F.2D 43,
AFFIRMED. 


ON THE RECORD IN THIS CASE, PETITIONER'S CONVICTION AT HIS SECOND
TRIAL IN A FEDERAL DISTRICT COURT FOR VIOLATION OF 18 U.S.C. SEC. 659,
AFTER HIS FIRST TRIAL HAD BEEN TERMINATED BY THE TRIAL JUDGE'S
DECLARATION OF A MISTRIAL SUA SPONTE AND WITHOUT PETITIONER'S "ACTIVE
AND EXPRESS CONSENT," BUT CONCEDEDLY IN THE TRIAL COURT'S EXERCISE OF
DISCRETION OUT OF REGARD FOR PETITIONER'S INTEREST, DID NOT VIOLATE THE
FIFTH AMENDMENT'S PROHIBITION OF DOUBLE JEOPARDY.  PP. 364-370. 

GORI V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

OPINION OF THE COURT, BY MR. JUSTICE FRANKFURTER, ANNOUNCED BY MR.
JUSTICE CLARK. 

IN VIEW OF THIS COURT'S PRIOR DECISIONS, OUR LIMITED GRANT OF
CERTIORARI IN THIS CASE (FN1) BRINGS A NARROW QUESTION HERE.  WE ARE TO
DETERMINE WHETHER, IN THE PARTICULAR CIRCUMSTANCES OF THIS RECORD,
PETITIONER'S CONVICTION AT HIS SECOND TRIAL (FN2) FOR VIOLATION OF 18
U.S.C. SEC. 659, (FN3) AFTER HIS FIRST TRIAL HAD BEEN TERMINATED BY THE
TRIAL JUDGE'S DECLARATION OF A MISTRIAL SUA SPONTE AND WITHOUT
PETITIONER'S "ACTIVE AND EXPRESS CONSENT," (FN4) VIOLATES THE FIFTH
AMENDMENT'S PROHIBITION OF DOUBLE JEOPARDY.  THE COURT OF APPEALS FOR
THE SECOND CIRCUIT IN BANC AFFIRMED PETITIONER'S CONVICTION (ONE JUDGE
DISSENTING), HOLDING HIS CONSTITUTIONAL OBJECTION WITHOUT MERIT.  282
F.2D 43.  WE AGREE THAT THE FIFTH AMENDMENT DOES NOT REQUIRE A CONTRARY
RESULT.  (FN5) 

PETITIONER WAS BROUGHT TO TRIAL BEFORE A JURY IN THE DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK ON FEBRUARY 4, 1959, ON AN
INFORMATION CHARGING THAT HE HAD KNOWINGLY RECEIVED AND POSSESSED GOODS
STOLEN IN INTERSTATE COMMERCE.  THAT SAME AFTERNOON, DURING THE DIRECT
EXAMINATION OF THE FOURTH WITNESS FOR THE GOVERNMENT, THE PRESIDING
JUDGE, ON HIS OWN MOTION AND WITH NEITHER APPROVAL NOR OBJECTION BY
PETITIONER'S COUNSEL, (FN6) WITHDREW A JUROR AND DECLARED A MISTRIAL. 
IT IS UNCLEAR WHAT REASONS CAUSED THE COURT TO TAKE THIS ACTION, WHICH
THE COURT OF APPEALS CHARACTERIZED AS "OVERASSIDUOUS" AND CRITICIZED AS
PREMATURE.  (FN7)  APPARENTLY THE TRIAL JUDGE INFERRED THAT THE
PROSECUTING ATTORNEY'S LINE OF QUESTIONING PRESAGED INQUIRY CALCULATED
TO INFORM THE JURY OF OTHER CRIMES BY THE ACCUSED, AND TOOK ACTION TO
FORESTALL IT.  IN ANY EVENT, IT IS OBVIOUS, AS THE COURT OF APPEALS
CONCLUDED, THAT THE JUDGE "WAS ACTING ACCORDING TO HIS CONVICTIONS IN
PROTECTING THE RIGHTS OF THE ACCUSED."  282 F.2D, AT 46.  THE COURT
BELOW DID NOT HOLD THE MISTRIAL RULING ERRONEOUS OR AN ABUSE OF
DISCRETION.  IT DID FIND THE PROSECUTOR'S CONDUCT UNEXCEPTIONABLE AND
THE REASON FOR THE MISTRIAL, THEREFORE, NOT "ENTIRELY CLEAR."  IT DID
SAY THAT "THE JUDGE SHOULD HAVE AWAITED A DEFINITE QUESTION WHICH WOULD
HAVE PERMITTED A CLEAR-CUT RULING," AND THAT, IN FAILING TO DO SO, HE
DISPLAYED AN "OVERZEALOUSNESS" AND ACTED "TOO HASTILY."  ID., AT 46,
48.  BUT AFTER DISCUSSING THE WIDE RANGE OF DISCRETION WHICH THE
"FUNDAMENTAL CONCEPTS OF THE FEDERAL ADMINISTRATION OF CRIMINAL
JUSTICE" ALLOW TO THE TRIAL JUDGE IN DETERMINING WHETHER OR NOT A
MISTRIAL IS APPROPRIATE - A RESPONSIBILITY WHICH "IS PARTICULARLY ACUTE
IN THE AVOIDANCE OF PREJUDICE ARISING FROM NUANCES IN THE HEATED
ATMOSPHERE OF TRIAL, WHICH CANNOT BE FULLY DEPICTED IN THE COLD RECORD
ON APPEAL," ID., AT 47 - AND THE CORRESPONDING AFFIRMATIVE
RESPONSIBILITY FOR THE CONDUCT OF A CRIMINAL TRIAL WHICH THE FEDERAL
PRECEDENTS IMPOSE, IT CONCLUDED: 

"ON THIS BASIS WE DO NOT BELIEVE DECISION SHOULD BE DIFFICULT, FOR
THE RESPONSIBILITY AND DISCRETION EXERCISED BY THE JUDGES BELOW SEEM TO
US SOUND  ...  ."  ID., AT 48. 

CERTAINLY, ON THE SKIMPY RECORD BEFORE US (FN8) IT WOULD EXCEED THE
APPROPRIATE SCOPE OF REVIEW WERE WE OURSELVES TO ATTEMPT TO PASS AN
INDEPENDENT JUDGMENT UPON THE PROPRIETY OF THE MISTRIAL, EVEN SHOULD WE
BE PRONE TO DO SO - AS WE ARE NOT, WITH DUE REGARD FOR THE GUIDING
FAMILIARITY WITH DISTRICT JUDGES AND WITH DISTRICT COURT CONDITIONS
POSSESSED BY THE COURTS OF APPEALS. 

ON MARCH 9, 1959, PETITIONER MOVED TO DISMISS THE INFORMATION ON THE
GROUND THAT TO TRY HIM AGAIN WOULD CONSTITUTE DOUBLE JEOPARDY.  THE
MOTION WAS DENIED AND HE WAS RETRIED IN APRIL.  HE NOW ATTACKS THE
CONVICTION IN WHICH THE SECOND TRIAL RESULTED. 

IN THIS STATE OF THE RECORD, WE ARE NOT REQUIRED TO PASS UPON THE
BROAD CONTENTIONS PRESSED, RESPECTIVELY, BY COUNSEL FOR PETITIONER AND
FOR THE GOVERNMENT.  THE CASE IS ONE IN WHICH, VIEWING IT MOST
FAVORABLY TO PETITIONER, THE MISTRIAL ORDER UPON WHICH HIS CLAIM OF
JEOPARDY IS BASED WAS FOUND NEITHER APPARENTLY JUSTIFIED NOR CLEARLY
ERRONEOUS BY THE COURT OF APPEALS IN ITS REVIEW OF A COLD RECORD.  WHAT
THAT COURT DID FIND AND WHAT IS UNQUESTIONABLE IS THAT THE ORDER WAS
THE PRODUCT OF THE TRIAL JUDGE'S EXTREME SOLICITUDE - AN OVEREAGER
SOLICITUDE, IT MAY BE - IN FAVOR OF THE ACCUSED. 

SINCE 1824 IT HAS BEEN SETTLED LAW IN THIS COURT THAT "THE DOUBLE
JEOPARDY PROVISION OF THE FIFTH AMENDMENT  ...  DOES NOT MEAN THAT
EVERY TIME A DEFENDANT IS PUT TO TRIAL BEFORE A COMPETENT TRIBUNAL HE
IS ENTITLED TO GO FREE IF THE TRIAL FAILS TO END IN A FINAL JUDGMENT." 
WADE V. HUNTER, 336 U.S. 684, 688.  UNITED STATES V. PEREZ, 9 WHEAT. 
579; THOMPSON V. UNITED STATES, 155 U.S. 271; KEERL V. MONTANA, 213
U.S. 135, 137-138; SEE EX PARTE LANGE, 18 WALL.  163, 173-174; GREEN V.
UNITED STATES, 355 U.S. 184, 188.  WHERE, FOR REASONS DEEMED COMPELLING
BY THE TRIAL JUDGE, WHO IS BEST SITUATED INTELLIGENTLY TO MAKE SUCH A
DECISION, THE ENDS OF SUBSTANTIAL JUSTICE CANNOT BE ATTAINED WITHOUT
DISCONTINUING THE TRIAL, A MISTRIAL MAY BE DECLARED WITHOUT THE
DEFENDANT'S CONSENT AND EVEN OVER HIS OBJECTION, AND HE MAY BE RETRIED
CONSISTENTLY WITH THE FIFTH AMENDMENT.  SIMMONS V. UNITED STATES, 142
U.S. 148; LOGAN V. UNITED STATES, 144 U.S. 263; DREYER V. ILLINOIS, 187
U.S. 71, 85-86.  IT IS ALSO CLEAR THAT "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  ...  ," BROCK V. NORTH CAROLINA, 344 U.S. 424, 427,
(FN9) AND THAT WE HAVE CONSISTENTLY DECLINED TO SCRUTINIZE WITH SHARP
SURVEILLANCE THE EXERCISE OF THAT DISCRETION.  SEE LOVATO V. NEW
MEXICO, 242 U.S. 199; CF. WADE V. HUNTER, SUPRA.  IN THE PEREZ CASE,
THE AUTHORITATIVE STARTING POINT OF OUR LAW IN THIS FIELD, MR. JUSTICE
STORY, FOR A UNANIMOUS COURT, THUS STATED THE PRINCIPLES WHICH HAVE
SINCE GUIDED THE FEDERAL COURTS IN THEIR APPLICATION OF THE CONCEPT OF
DOUBLE JEOPARDY TO SITUATIONS GIVING RISE TO MISTRIALS: 

"  ...  WE THINK, THAT IN ALL CASES OF THIS NATURE, THE LAW HAS
INVESTED COURTS OF JUSTICE 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.  THEY
ARE TO EXERCISE A SOUND DISCRETION ON THE SUBJECT; AND IT IS IMPOSSIBLE
TO DEFINE ALL THE CIRCUMSTANCES, WHICH WOULD RENDER IT PROPER TO
INTERFERE.  TO BE SURE, THE POWER OUGHT TO BE USED WITH THE GREATEST
CAUTION, UNDER URGENT CIRCUMSTANCES, AND FOR VERY PLAIN AND OBVIOUS
CAUSES; AND, IN CAPITAL CASES ESPECIALLY, COURTS SHOULD BE EXTREMELY
CAREFUL HOW THEY INTERFERE WITH ANY OF THE CHANCES OF LIFE, IN FAVOR OF
THE PRISONER.  BUT, AFTER ALL, THEY HAVE THE RIGHT TO ORDER THE
DISCHARGE; AND THE SECURITY WHICH THE PUBLIC HAVE FOR THE FAITHFUL,
SOUND, AND CONSCIENTIOUS EXERCISE OF THIS DISCRETION, RESTS, IN THIS,
AS IN OTHER CASES, UPON THE RESPONSIBILITY OF THE JUDGES, UNDER THEIR
OATHS OF OFFICE  ...  ."  9 WHEAT., AT 580. 

THE PRESENT CASE FALLS WITHIN THESE BROAD CONSIDERATIONS.  JUDICIAL
WISDOM COUNSELS AGAINST ANTICIPATING HYPOTHETICAL SITUATIONS IN WHICH
THE DISCRETION OF THE TRIAL JUDGE MAY BE ABUSED AND SO CALL FOR THE
SAFEGUARD OF THE FIFTH AMENDMENT - CASES IN WHICH THE DEFENDANT WOULD
BE HARASSED BY SUCCESSIVE, OPPRESSIVE PROSECUTIONS, OR IN WHICH A JUDGE
EXERCISES HIS AUTHORITY TO HELP THE PROSECUTION, AT A TRIAL IN WHICH
ITS CASE IS GOING BADLY, BY AFFORDING IT ANOTHER, MORE FAVORABLE
OPPORTUNITY TO CONVICT THE ACCUSED.  SUFFICE THAT WE ARE UNWILLING,
WHERE IT CLEARLY APPEARS THAT A MISTRIAL HAS BEEN GRANTED IN THE SOLE
INTEREST OF THE DEFENDANT, TO HOLD THAT ITS NECESSARY CONSEQUENCE IS TO
BAR ALL RETRIAL.  IT WOULD HARK BACK TO THE FORMALISTIC ARTIFICIALITIES
OF SEVENTEENTH CENTURY CRIMINAL PROCEDURE SO TO CONFINE OUR FEDERAL
TRIAL COURTS BY COMPELLING THEM TO NAVIGATE A NARROW COMPASS BETWEEN
SCYLLA AND CHARYBDIS.  WE WOULD NOT THUS MAKE THEM UNDULY HESITANT
CONSCIENTIOUSLY TO EXERCISE THEIR MOST SENSITIVE JUDGMENT - ACCORDING
TO THEIR OWN LIGHTS IN THE IMMEDIATE EXIGENCIES OF TRIAL - FOR THE MORE
EFFECTIVE PROTECTION OF THE CRIMINAL ACCUSED.  AFFIRMED. 

FN1  364 U.S. 917. 

FN2  PRIOR TO THE PROCEEDINGS IN THE TWO TRIALS WHICH ARE RELEVANT
FOR PRESENT PURPOSES, DENOMINATED THE "FIRST" AND "SECOND" TRIALS
HEREIN, THERE HAD BEEN A MISTRIAL GRANTED UPON MOTION OF PETITIONER. 

FN3  THE STATUTE MAKES UNLAWFUL, INTER ALIA, THE RECEIPT OR
POSSESSION OF ANY GOODS STOLEN FROM A VEHICLE AND MOVING AS, OR
CONSTITUTING, AN INTERSTATE SHIPMENT OF FREIGHT, KNOWING THE GOODS TO
BE STOLEN. 

FN4  282 F.2D 43, 46. 

FN5  WE CANNOT, OF COURSE, DETERMINE WHAT RESULT WOULD OBTAIN HAD THE
COURT OF APPEALS, IN LIGHT OF ITS CLOSE ACQUAINTANCE WITH THE LOCAL
SITUATION, DECIDED THAT PETITIONER'S MISTRIAL OPERATED TO BAR HIS
FURTHER PROSECUTION, AND WERE SUCH A DECISION BEFORE US. 

FN6  IN LIGHT OF OUR DISPOSITION, WE NEED NOT REACH THE GOVERNMENT'S
SUGGESTION THAT PETITIONER'S FAILURE TO OBJECT TO THE MISTRIAL
ADVERSELY AFFECTS HIS CLAIM.  WE NOTE PETITIONER'S ARGUMENT THAT,
BECAUSE OF THE PRECIPITOUS COURSE OF EVENTS, THERE WAS NO OPPORTUNITY
FOR SUCH OBJECTION. 

FN7  "THE COLLOQUY (IMMEDIATELY PRECEDING THE MISTRIAL)  ...
DEMONSTRATES THAT THE PROSECUTOR DID NOTHING TO INSTIGATE THE
DECLARATION OF A MISTRIAL AND THAT HE WAS ONLY PERFORMING HIS ASSIGNED
DUTY UNDER TRYING CONDITIONS.  THIS IS BORNE OUT BY THE ENTIRE
TRANSCRIPT, INCLUDING ALSO THAT COVERING THE MORNING SESSION.  NOR DOES
IT MAKE ENTIRELY CLEAR THE REASONS WHICH LED THE JUDGE TO ACT, THOUGH
THE PARTIES APPEAR AGREED THAT HE INTENDED TO PREVENT THE PROSECUTOR
FROM BRINGING OUT EVIDENCE OF OTHER CRIMES BY THE ACCUSED.  EVEN SO,
THE JUDGE SHOULD HAVE AWAITED A DEFINITE QUESTION WHICH WOULD HAVE
PERMITTED A CLEAR-CUT RULING  ...  ."  282 F.2D, AT 46. 

FN8  THE RECORD HERE CONTAINS, WITH RESPECT TO THE FEBRUARY 4 TRIAL,
TWO PARAGRAPHS FROM THE GOVERNMENT'S OPENING, FOUR PARAGRAPHS FROM THE
PETITIONER'S OPENING, A SIX-LINE COLLOQUY BETWEEN THE COURT AND
PROSECUTING COUNSEL, A PORTION OF THE EXAMINATION OF THE THIRD OF THE
GOVERNMENT'S FIRST THREE WITNESSES, AND THE ENTIRE TRANSCRIPT OF THE
TESTIMONY OF THE FOURTH WITNESS.  THE LAST TWO ITEMS ARE SET OUT IN THE
AFFIDAVIT OF THE ASSISTANT UNITED STATES ATTORNEY IN OPPOSITION TO
PETITIONER'S MOTION TO DISMISS THE INFORMATION FOLLOWING THE MISTRIAL. 

FN9  BROCK V. NORTH CAROLINA WAS A STATE PROSECUTION AND THEREFORE
AROSE, OF COURSE, UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE PASSAGE QUOTED FROM BROCK, HOWEVER, RELATED TO THE
APPLICATION IN FEDERAL PROSECUTIONS OF THE DOUBLE JEOPARDY PROVISION OF
THE FIFTH. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

THE PLACE ONE COMES OUT, WHEN FACED WITH THE PROBLEM OF THIS CASE,
DEPENDS LARGELY ON WHERE ONE STARTS. 

TODAY THE COURT PHRASES THE PROBLEM IN TERMS OF WHETHER A MISTRIAL
HAS BEEN GRANTED "TO HELP THE PROSECUTION" ON THE ONE HAND OR "IN THE
SOLE INTEREST OF THE DEFENDANT" ON THE OTHER.  THE FORMER IS PLAINLY IN
VIOLATION OF THE PROVISION OF THE FIFTH AMENDMENT THAT NO PERSON SHALL
"  ...  BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF
LIFE OR LIMB  ...  ."  THAT WAS WHAT WE SAID IN GREEN V. UNITED STATES,
355 U.S. 184, 188.  BUT NOT UNTIL TODAY, I BELIEVE, HAVE WE EVER
INTIMATED THAT A MISTRIAL ORDERED "IN THE SOLE INTEREST OF THE
DEFENDANT" WAS NO BAR TO A SECOND TRIAL WHERE THE MISTRIAL WAS NOT
ORDERED AT THE REQUEST OF THE DEFENDANT OR WITH HIS CONSENT.  YET THAT
IS THE SITUATION PRESENTED HERE, FOR THE COURT OF APPEALS FOUND THAT
THE TRIAL JUDGE "WAS ACTING ACCORDING TO HIS CONVICTIONS IN PROTECTING
THE RIGHTS OF THE ACCUSED."  (FN1) 

THERE ARE OCCASIONS WHERE A SECOND TRIAL MAY BE HAD, ALTHOUGH THE
JURY WHICH WAS IMPANELLED FOR THE FIRST TRIAL WAS DISCHARGED WITHOUT
REACHING A VERDICT AND WITHOUT THE DEFENDANT'S CONSENT.  MISTRIAL
BECAUSE THE JURY WAS UNABLE TO AGREE IS THE CLASSIC EXAMPLE; AND THAT
WAS THE CRITICAL CIRCUMSTANCE IN UNITED STATES V. PEREZ, 9 WHEAT.  515;
LOGAN V. UNITED STATES, 144 U.S. 263; DREYER V. ILLINOIS, 187 U.S. 71;
MOSS V. GLENN, 189 U.S. 506; KEERL V. MONTANA, 213 U.S. 135.  TACTICAL
SITUATIONS OF AN ARMY IN THE FIELD HAVE BEEN HELD TO JUSTIFY THE
WITHDRAWAL OF A COURTMARTIAL PROCEEDING AND THE INSTITUTION OF ANOTHER
ONE IN CALMER DAYS.  WADE V. HUNTER, 336 U.S. 684.  DISCOVERY BY THE
JUDGE DURING THE TRIAL THAT "ONE OR MORE MEMBERS OF A JURY MIGHT BE
BIASED AGAINST THE GOVERNMENT OR THE DEFENDANT" HAS BEEN HELD TO
WARRANT DISCHARGE OF THE JURY AND DIRECTION OF A NEW TRIAL.  ID., 689. 
AND SEE SIMMONS V. UNITED STATES, 142 U.S. 148; THOMPSON V. UNITED
STATES, 155 U.S. 271.  THAT IS TO SAY, "A DEFENDANT'S VALUED RIGHT TO
HAVE HIS TRIAL COMPLETED BY A PARTICULAR TRIBUNAL MUST IN SOME
INSTANCES BE SUBORDINATED TO THE PUBLIC'S INTEREST IN FAIR TRIALS
DESIGNED TO END IN JUST JUDGMENTS."  (FN2)  WADE V. HUNTER, SUPRA,
689.  WHILE THE MATTER IS SAID TO BE IN THE SOUND DISCRETION OF THE
TRIAL COURT, THAT DISCRETION HAS SOME GUIDELINES - "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."  ID., 690.    TO DATE THESE EXCEPTIONS HAVE BEEN NARROWLY
CONFINED.  ONCE A JURY HAS BEEN IMPANELLED AND SWORN, JEOPARDY ATTACHES
AND A SUBSEQUENT PROSECUTION IS BARRED, IF A MISTRIAL IS ORDERED -
ABSENT A SHOWING OF IMPERIOUS NECESSITY.  (FN3)  AS STATED BY MR.
JUSTICE STORY IN UNITED STATES V. COOLIDGE, 25 FED. CAS. 622, THE
DISCRETION IS TO BE EXERCISED "ONLY IN VERY EXTRAORDINARY AND STRIKING
CIRCUMSTANCES." 

THAT IS MY STARTING POINT.  I READ THE DOUBLE JEOPARDY CLAUSE AS
APPLYING A STRICT STANDARD.  "THE PROHIBITION IS NOT AGAINST BEING
TWICE PUNISHED; BUT AGAINST BEING TWICE PUT IN JEOPARDY."  UNITED
STATES V. BALL, 163 U.S. 662, 669.  IT IS DESIGNED TO HELP EQUALIZE THE
POSITION OF GOVERNMENT AND THE INDIVIDUAL, TO DISCOURAGE ABUSIVE USE OF
THE AWESOME POWER OF SOCIETY.  ONCE A TRIAL STARTS JEOPARDY ATTACHES. 
THE PROSECUTION MUST STAND OR FALL ON ITS PERFORMANCE AT THE TRIAL.  I
DO NOT SEE HOW A MISTRIAL DIRECTED BECAUSE THE PROSECUTOR HAS NO
WITNESSES IS DIFFERENT FROM A MISTRIAL DIRECTED BECAUSE THE PROSECUTOR
ABUSES HIS OFFICE AND IS GUILTY OF MISCONDUCT.  IN NEITHER IS THERE A
BREAKDOWN IN JUDICIAL MACHINERY SUCH AS HAPPENS WHEN THE JUDGE IS
STRICKEN, OR A JUROR HAS BEEN DISCOVERED TO BE DISQUALIFIED TO SIT, OR
WHEN IT IS IMPOSSIBLE OR IMPRACTICAL TO HOLD A TRIAL AT THE TIME AND
PLACE SET.  THE QUESTION IS NOT, AS THE COURT OF APPEALS THOUGHT,
WHETHER A DEFENDANT IS "TO RECEIVE ABSOLUTION FOR HIS CRIME."  282 F.2D
43, 48.  THE POLICY OF THE BILL OF RIGHTS IS TO MAKE RARE INDEED THE
OCCASIONS WHEN THE CITIZEN CAN FOR THE SAME OFFENSE BE REQUIRED TO RUN
THE GANTLET TWICE.  THE RISK OF JUDICIAL ARBITRARINESS RESTS WHERE, IN
MY VIEW, THE CONSTITUTION PUTS IT - ON THE GOVERNMENT. 

FN1  IN THIS CASE THE TRIAL JUDGE SAID: 

"I DECLARE A MISTRIAL AND I DON'T CARE WHETHER THE ACTION IS
DISMISSED OR NOT.  I DECLARE A MISTRIAL BECAUSE OF THE CONDUCT OF THE
DISTRICT ATTORNEY." 

FN2  IN LOVATO V. NEW MEXICO, 242 U.S. 199, 201, THE JURY WAS
DISMISSED SO THAT THE DEFENDANT COULD BE ARRAIGNED AND COULD PLEAD; AND
IT WAS THEN IMPANELLED AGAIN.  THE CASE STANDS FOR NO MORE THAN THE
SETTLED PROPOSITION THAT "A MERE IRREGULARITY OF PROCEDURE" DOES NOT
ALWAYS AMOUNT TO DOUBLE JEOPARDY. 

FN3  SEE UNITED STATES V. WATSON, 28 FED. CAS. 499; UNITED STATES V.
WHITLOW, 110 F. SUPP. 871; EX PARTE ULRICH, 42 F. 587. 

IN STATE CASES, A SECOND PROSECUTION HAS BEEN BARRED WHERE THE JURY
WAS DISCHARGED THROUGH THE TRIAL JUDGE'S MISCONSTRUCTION OF THE LAW. 
JACKSON V. SUPERIOR COURT, 10 CAL. 2D 350, 74 P.2D 243, 113 A.L.R.
1422; STATE V. SPAYDE, 110 IOWA 726, 80 N.W. 1058; STATE V. CALLENDINE,
8 IOWA 288; LILLARD V. COMMONWEALTH, 267 S.W.2D 712 (KY.); MULLINS V.
COMMONWEALTH, 258 KY.  529, 80 S.W.2D 606; ROBINSON V. COMMONWEALTH, 88
KY. 386, 11 S.W. 210; WILLIAMS V. COMMONWEALTH, 78 KY. 93; YARBROUGH V.
STATE, 90 OKLA. CR. 74, 210 P.2D 375; LOYD V. STATE, 6 OKLA. CR. 76,
116 P. 959. 

WHERE THE TRIAL JUDGE HAS MADE A MISTAKE IN CONCLUDING THAT THE JURY
WAS ILLEGALLY IMPANELLED, OR BIASED, A SECOND PROSECUTION HAS BEEN
BARRED.  WHITMORE V. STATE, 43 ARK.  271; GILLESPIE V. STATE, 168 IND.
298, 80 N.E. 829; O'BRIAN V. COMMONWEALTH, 72 KY. 333; PEOPLE V.
PARKER, 145 MICH. 488, 108 N.W. 999; STATE V. NELSON, 19 R.I. 467;
STATE V. M'KEE, 17 S.C.L. (1 BAIL.)  651, 21 AM. DEC. 499; TOMASSON V.
STATE, 112 TENN. 596, 79 S.W. 802.  SEE ALSO HILANDS V. COMMONWEALTH,
111 PA. ST. 1, 2 A. 70, 56 AM. REP. 235, AS LIMITED BY COMMONWEALTH V.
SIMPSON, 310 PA. 380, 165 A. 498.  CF. MADEN V. EMMONS, 83 IND. 331. 

THE ACCUSED HAS ALSO BEEN DISCHARGED WHERE THE TRIAL JUDGE ERRED IN
HIS ESTIMATE OF THE PREJUDICIAL QUALITY OF THE REMARKS MADE BY COUNSEL
FOR THE ACCUSED, ARMENTROUT V. STATE, 214 IND. 273, 15 N.E.2D 363, OR
OF THE JURORS' DRINKING BEER WHICH HAD BEEN BROUGHT IN BY THE BAILIFF. 
STATE V. LEUNIG, 42 IND. 541. 
..END :



UNITED STATES V. SHIMER 367 U.S. 374 


NO. 392.  ARGUED APRIL 27, 1961 - DECIDED JUNE 12, 1961 - 276 F.2D 792,
REVERSED AND CASE REMANDED. 


UNDER TITLE III OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS
AMENDED IN 1945, THE VETERANS' ADMINISTRATION GUARANTEED UP TO $4,000
OR 4/13 OF THE INDEBTEDNESS OUTSTANDING AT ANY TIME ON A LOAN OF
$13,000 MADE BY A LENDING INSTITUTION TO A WORLD WAR II VETERAN AND
SECURED BY A MORTGAGE ON A HOME IN PENNSYLVANIA PURCHASED BY HIM WITH
THE PROCEEDS.  THE VETERAN SOON DEFAULTED, AND THE MORTGAGEE NOTIFIED
THE ADMINISTRATION, OBTAINED A PENNSYLVANIA JUDGMENT FORECLOSING THE
MORTGAGE, AND BOUGHT THE PROPERTY AT A SHERIFF'S SALE FOR $250.  THE
VETERANS' ADMINISTRATION PAID THE ENTIRE GUARANTY OF $4,000 AND SUED IN
A FEDERAL DISTRICT COURT TO RECOVER THAT AMOUNT FROM THE VETERAN AS
INDEMNITY.  THE DISTRICT COURT HELD THAT THE VETERAN WAS NOT LIABLE ON
THE GROUND THAT, UNDER PENNSYLVANIA LAW, THE ADMINISTRATION HAD BEEN
RELEASED FROM LIABILITY AS GUARANTOR BY THE MORTGAGEE'S PURCHASE OF THE
PROPERTY AT THE SHERIFF'S SALE, FOLLOWED BY ITS FAILURE TO PETITION FOR
JUDICIAL DETERMINATION OF ITS "FAIR MARKET VALUE," PURSUANT TO A
PENNSYLVANIA DEFICIENCY JUDGMENT ACT.  THE COURT OF APPEALS AFFIRMED. 
HELD:  THE JUDGMENT IS REVERSED, SINCE THE COURTS BELOW ERRED IN
APPLYING A STATE STATUTE WHICH WAS IN CONFLICT WITH A VALID REGULATION
OF THE VETERANS' ADMINISTRATION ISSUED PURSUANT TO THE ACT AND AGREED
TO BY THE VETERAN WHEN THE LOAN WAS MADE.  PP. 375-388. 

(A)  APPLICATION OF STATE LAW TO DETERMINE THE ADMINISTRATION'S
OBLIGATION TO THE MORTGAGEE WAS INCONSISTENT WITH THE APPLICABLE
REGULATIONS PRESCRIBED BY THE ADMINISTRATION.  PP. 377-381. 

(B)  SECTION 504 OF THE ACT AUTHORIZED THE VETERANS' ADMINISTRATOR TO
DISPLACE STATE LAW BY ESTABLISHING THE EXCLUSIVE PROCEDURES PRESCRIBED
BY THE REGULATIONS AND FOLLOWED IN THIS CASE.  PP. 381-385. 

(C)  THE ACT AFFORDS AN INDEPENDENT RIGHT OF INDEMNITY TO THE
ADMINISTRATION.  PP. 386-387. 

(D)  UNDER THE APPLICABLE REGULATIONS, THE VETERAN CANNOT ESCAPE
LIABILITY FOR INDEMNITY ON THE THEORY THAT THERE WAS NO DEBT DUE FROM
HIM AT THE TIME OF PAYMENT ON THE GUARANTY.  PP. 387-388. 

UNITED STATES V. SHIMER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS ACTION IN THE EASTERN DISTRICT OF
PENNSYLVANIA TO RECOVER FROM SHIMER, ON THEORIES OF SUBROGRATION AND
INDEMNITY, AN AMOUNT OF $4,000 WHICH THE VETERANS' ADMINISTRATION, AS
GUARANTOR OF A LOAN MADE TO HIM BY EXCELSIOR SAVING FUND AND LOAN
ASSOCIATION, HAD PAID TO THAT INSTITUTION. 

THE RELEVANT FACTS, AS STIPULATED BY THE PARTIES, ARE THESE:  IN 1948
SHIMER, A WORLD WAR II VETERAN, BORROWED $13,000 FROM EXCELSIOR SECURED
BY A MORTGAGE UPON RESIDENTIAL REALTY WHICH SHIMER PURCHASED WITH THE
PROCEEDS.  AT SHIMER'S REQUEST THE VETERANS' ADMINISTRATION, PURSUANT
TO TITLE III OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED
IN 1945, (FN1) GRANTED A MAXIMUM GUARANTEE OF THE LOAN - THAT IS, THE
LESSER OF $4,000 OR 4/13 OF THE INDEBTEDNESS OUTSTANDING AT ANY
PARTICULAR TIME.  (FN2)  BOTH THE "HOME LOAN REPORT" SIGNED BY SHIMER,
AND THE ADMINISTRATION CERTIFICATE OF GUARANTY, SPECIFIED THAT THE
RIGHTS OF THE PARTIES WOULD BE GOVERNED BY REGULATIONS OF THE
ADMINISTRATION IN EFFECT AT THE DATE OF THE LOAN AND GUARANTY.  SHIMER
DEFAULTED IN 1948, AND IN 1949 EXCELSIOR, AS MORTGAGEE, NOTIFIED THE
VETERANS' ADMINISTRATION OF HIS DEFAULT AND OBTAINED A PENNSYLVANIA
JUDGMENT FORECLOSING THE MORTGAGE WHICH THEN SECURED A DEBT IN EXCESS
OF $13,000.  (FN3)  AFTER THE PROPERTY WAS PURCHASED BY EXCELSIOR AT A
SHERIFF'S SALE FOR $250, THE VETERANS' ADMINISTRATION PAID IT THE
ENTIRE GUARANTY OF $4,000 AND BROUGHT THE PRESENT ACTION AGAINST
SHIMER. 

IN THE COURT OF APPEALS, THE UNITED STATES CHOSE TO RELY EXCLUSIVELY
ON THE ADMINISTRATION'S ALLEGED RIGHT OF INDEMNITY AGAINST SHIMER, AND
ACCORDINGLY DOES NOT PRESS ITS CLAIM HERE UPON A THEORY OF
SUBROGATION.  THE COURT OF APPEALS HELD THAT THE UNITED STATES WAS NOT
ENTITLED TO RECOVER, REACHING THIS RESULT BY APPLYING A WELL
ESTABLISHED PRINCIPLE OF SURETY LAW WHICH BOTH PARTIES AGREE WAS
RECOGNIZED BY CONGRESS WHEN IT PASSED TITLE III: THE VETERANS'
ADMINISTRATION, AS GUARANTOR, COULD NOT RECOVER FROM ITS PRINCIPAL,
SHIMER, ANY AMOUNT IT WAS NOT OBLIGATED TO PAY THE MORTGAGEE,
EXCELSIOR, ON HIS BEHALF.  TURNING TO STATE LAW TO DETERMINE THE EXTENT
OF THE ADMINISTRATION'S OBLIGATION TO EXCELSIOR, THE COURT BELOW
CONSIDERED THAT UNDER PENNSYLVANIA LAW BOTH SHIMER AND THE VETERANS'
ADMINISTRATION HAD BEEN RELEASED FROM ANY FURTHER LIABILITY TO
EXCELSIOR AT THE TIME THE ADMINISTRATION PAID ITS $4,000 GUARANTEE,
THAT IS, AFTER THE FORECLOSURE SALE.  276 F.2D 792.  UNDER THE
PENNSYLVANIA DEFICIENCY JUDGMENT ACT (FN4) A MORTGAGEE WHO PURCHASES
THE MORTGAGED PROPERTY IN EXECUTION PROCEEDINGS CANNOT RECOVER A
DEFICIENCY JUDGMENT UNLESS AND UNTIL THE MORTGAGEE OBTAINS A COURT
DETERMINATION OF THE FAIR MARKET VALUE OF THE MORTGAGED PROPERTY AND
CREDITS THAT AMOUNT TO THE UNSATISFIED LIABILITY.  WHEN, AS EVENTUATED
IN THIS CASE, THE MORTGAGEE FAILS TO BRING A PROCEEDING FOR THIS
PURPOSE WITHIN SIX MONTHS AFTER THE FORECLOSURE SALE, THE DEBTOR AND
GUARANTOR ARE PERMANENTLY DISCHARGED. 

WE GRANTED CERTIORARI, 364 U.S. 889, TO PASS UPON THE CONTENTIONS OF
THE UNITED STATES THAT:  (1) THE APPLICATION OF STATE LAW TO DETERMINE
THE ADMINISTRATION'S OBLIGATION TO EXCELSIOR IS INCONSISTENT WITH THE
REGULATIONS PRESCRIBED BY THE AGENCY CHARGED WITH ADMINISTERING THE
SERVICEMEN'S READJUSTMENT ACT; (2) THESE REGULATIONS ARE AUTHORIZED BY
THE FEDERAL ENACTMENT; AND (3) A RIGHT OF INDEMNITY UNDER FEDERAL LAW
ARISES IN FAVOR OF THE VETERANS' ADMINISTRATION UPON PROPER PAYMENT OF
ITS OBLIGATIONS AS GUARANTOR. 

           I. 

THE REGULATIONS PROMULGATED BY THE VETERANS' ADMINISTRATION MAKE
CLEAR THAT THEY WERE INTENDED TO CREATE A UNIFORM SYSTEM FOR
DETERMINING THE ADMINISTRATION'S OBLIGATION AS GUARANTOR, WHICH IN ITS
OPERATION WOULD DISPLACE STATE LAW.  SECTION 36.4321, 12 FED. REG.
8344, IN SUBSECTION (A) (FN5) IMPLEMENTS THE "PRO RATA" REQUIREMENTS OF
SEC. 500(B) OF THE STATUTE, NOTE 2, SUPRA, AND ESTABLISHES THE
PROCEDURE FOR COMPUTING THE AMOUNT OF THE GUARANTY WHICH THE MORTGAGEE
CAN, UNDER SEC. 506 OF THE STATUTE, DEMAND TO HAVE APPLIED AGAINST HIS
UNPAID CLAIM ON THE DATE OF DEFAULT.  (FN6)  IN THIS INSTANCE IT IS
AGREED THAT SUCH AMOUNT IS $4,000.  HOWEVER, WE ARE INFORMED BY THE
SOLICITOR GENERAL THAT THE MORTGAGEE IS BOTH ALLOWED AND ENCOURAGED TO
DELAY COLLECTING ON THE GUARANTY UNTIL AFTER ALL EVENTS WHICH MAY LEAD
TO A GOVERNMENT OFFSET HAVE TAKEN PLACE.  THE ADMINISTRATION'S
POTENTIAL RIGHT AS SUBROGEE TO SOME PORTION OF THE PROCEEDS OF A
FORECLOSURE SALE IS SUCH A POSSIBLE OFFSET.  ACCORDINGLY, EXCELSIOR
WAITED UNTIL AFTER THE FORECLOSURE SALE TO COLLECT ON THE GUARANTY. 
THIS BROUGHT EXCELSIOR WITHIN SUBSECTION (B) OF SEC. 36.4321 WHICH
PROVIDES THAT "CREDITS ACCRUING FROM THE PROCEEDS OF A SALE  ...  OF
THE SECURITY SUBSEQUENT TO THE DATE OF COMPUTATION (PURSUANT TO
SUBSECTION (A), SUPRA), AND PRIOR TO THE SUBMISSION OF THE (GUARANTY)
CLAIM" SHALL BE APPLIED IN REDUCTION OF THE OUTSTANDING DEBT AND "THE
AMOUNT PAYABLE ON THE CLAIM SHALL IN NO EVENT EXCEED THE REMAINING
BALANCE OF THE INDEBTEDNESS." 

IT WAS AT THIS POINT THAT THE COURT OF APPEALS APPLIED THE
PENNSYLVANIA DEFICIENCY JUDGMENT ACT TO DETERMINE THE "CREDITS ACCRUING
FROM THE PROCEEDS OF  ...  (THE FORECLOSURE) SALE."  HOWEVER, THE
METHOD OF DETERMINING THESE CREDITS IS ALSO SPECIFIED IN THE
REGULATIONS, INDEED SPELLED OUT IN SEC. 36.4320, 13 FED. REG. 7739
7741, IN SUCH GREAT DETAIL THAT THERE CAN BE LITTLE DOUBT OF AN
ADMINISTRATIVE INTENT THAT SUCH METHOD SHOULD PROVIDE THE EXCLUSIVE
PROCEDURE.  (FN7)  IN SUBSTANCE, THAT SECTION PROVIDES THAT IN EVERY
CASE AT LEAST THE AMOUNT REALIZED AT THE FORECLOSURE SALE IS TO BE
CREDITED.  IT ALSO SPECIFIES THE WAY IN WHICH THE VETERANS'
ADMINISTRATION CAN REQUIRE THE MORTGAGEE TO CREDIT MORE THAN THE AMOUNT
RECEIVED AT THE FORECLOSURE SALE AND THEREBY PROTECT ITSELF AGAINST THE
VERY RISK THE PENNSYLVANIA DEFICIENCY JUDGMENT ACT WAS DESIGNED TO
ALLEVIATE - THE RISK OF HAVING TO MAKE GOOD ITS GUARANTY SIMPLY BECAUSE
THE MORTGAGED PROPERTY IS SOLD FOR AN INADEQUATE PRICE AT A JUDICIAL
SALE.  THE ADMINISTRATOR IS AUTHORIZED TO "SPECIFY IN ADVANCE OF SUCH
SALE THE MINIMUM AMOUNT WHICH SHALL BE CREDITED TO THE INDEBTEDNESS OF
THE BORROWER ON ACCOUNT OF THE VALUE OF THE SECURITY TO BE SOLD."  THE
MORTGAGEE MUST THEN REDUCE THE BALANCE OF THE UNPAID DEBT BY AT LEAST
THIS MINIMUM AMOUNT BEFORE COLLECTING ON THE GUARANTY.  THE MORTGAGEE
HAS THE OPTION, HOWEVER, OF SELLING ANY PROPERTY IT PURCHASED AT OR
BELOW THIS MINIMUM AMOUNT TO THE VETERANS' ADMINISTRATION FOR THE
SPECIFIED MINIMUM AMOUNT.  IF, AS IN THE PRESENT CASE, THE
ADMINISTRATOR DOES NOT SPECIFY A MINIMUM AMOUNT "THE HOLDER (MORTGAGEE)
SHALL CREDIT AGAINST THE INDEBTEDNESS THE NET PROCEEDS OF THE SALE  ...
." 

IN EFFECT, THEN, THE SCHEME SET UP BY THE REGULATIONS PROVIDES THE
VETERANS' ADMINISTRATION WITH A MEASURE OF ASSURANCE THAT THERE SHALL
BE CREDITED AGAINST THE UNPAID DEBT AT LEAST WHAT THE ADMINISTRATOR
REGARDS AS THE FAIR VALUE OF THE MORTGAGED PROPERTY.  IN TERMS OF THE
PRESENT CASE: WITH AN UNPAID BALANCE OF INDEBTEDNESS OF $13,000, THE
VETERANS' ADMINISTRATION SHOULD NOT HAVE TO PAY ITS FULL GUARANTY OF
$4,000 UNLESS THE PROPERTY WHICH EXCELSIOR MAY RETAIN IS WORTH LESS
THAN $9,000.  IF EXCELSIOR PURCHASED PROPERTY WORTH $10,000 FOR $250 AT
THE FORECLOSURE SALE, THE ADMINISTRATION SHOULD NOT HAVE TO PAY MORE
THAN $3,000 ON ITS $4,000 GUARANTY, OR, TO STATE THE MATTER MORE
PRECISELY, THE ADMINISTRATION SHOULD REALIZE A $1,000 CREDIT AS SET OFF
AGAINST ITS $4,000 GUARANTY WHICH EXCELSIOR COULD HAVE CLAIMED AT THE
TIME OF DEFAULT.  ACCORDINGLY, IF THE ADMINISTRATOR REGARDED THE
MORTGAGED PROPERTY AS WORTH $10,000 HE COULD HAVE SPECIFIED (WHICH HE
DID NOT) A MINIMUM CREDIT (OR "UPSET PRICE") OF THAT AMOUNT WHICH
EXCELSIOR WOULD THEN HAVE HAD TO CREDIT AGAINST THE $13,000 UNPAID
DEBT.  IF EXCELSIOR HAD PURCHASED THE PROPERTY FOR $10,000 OR LESS, IT
WOULD HAVE HAD AN OPTION TO RECONVEY THE PROPERTY AT A VALUATION OF
$10,000 TO THE VETERANS' ADMINISTRATION. 

THIS SCHEME OF PROTECTION, WHILE INTENDED TO REMEDY THE SAME ABUSES
AT WHICH THE PENNSYLVANIA DEFICIENCY JUDGMENT ACT IS DIRECTED, IS, OF
COURSE, INCONSISTENT WITH THE PENNSYLVANIA PROCEDURES WHICH PROVIDE FOR
A JUDICIAL DETERMINATION OF THE AMOUNT TO BE CREDITED AGAINST AN
OUTSTANDING DEBT AND DO NOT OBLIGATE THE GUARANTOR TO PURCHASE THE
MORTGAGED PROPERTY AT ITS JUDICIALLY DETERMINED VALUE.  WE HAVE NO
DOUBT THAT THIS REGULATORY SCHEME, COMPLETE AS IT IS IN EVERY DETAIL,
WAS INTENDED TO PROVIDE THE WHOLE AND EXCLUSIVE SOURCE OF PROTECTION OF
THE INTERESTS OF THE VETERANS' ADMINISTRATION AS GUARANTOR AND WAS, TO
THIS EXTENT, MEANT TO DISPLACE INCONSISTENT STATE LAW.  (FN8)

                          II. 

WE THINK THAT THE SERVICEMEN'S READJUSTMENT ACT AUTHORIZED THE
VETERANS' ADMINISTRATOR TO DISPLACE STATE LAW BY ESTABLISHING THESE
EXCLUSIVE PROCEDURES.  (FN9)  IN THIS REGARD IT IS IMPORTANT TO RECALL
THE SCOPE OF OUR REVIEW IN A CASE SUCH AS THIS.  MORE THAN A HALF
CENTURY AGO THIS COURT DECLARED THAT "WHERE CONGRESS HAS COMMITTED TO
THE HEAD OF A DEPARTMENT CERTAIN DUTIES REQUIRING THE EXERCISE OF
JUDGMENT AND DISCRETION, HIS ACTION THEREON, WHETHER IT INVOLVE
QUESTIONS OF LAW OR FACT, WILL NOT BE REVIEWED BY THE COURTS, UNLESS HE
HAS EXCEEDED HIS AUTHORITY OR THIS COURT SHOULD BE OF OPINION THAT HIS
ACTION WAS CLEARLY WRONG."  BATES & GUILD CO. V. PAYNE, 194 U.S. 106,
108-109.  THIS ADMONITION HAS BEEN CONSISTENTLY FOLLOWED BY THIS COURT
WHENEVER DECISION AS TO THE MEANING OR REACH OF A STATUTE HAS INVOLVED
RECONCILING CONFLICTING POLICIES, AND A FULL UNDERSTANDING OF THE FORCE
OF THE STATUTORY POLICY IN THE GIVEN SITUATION HAS DEPENDED UPON MORE
THAN ORDINARY KNOWLEDGE RESPECTING THE MATTERS SUBJECTED TO AGENCY
REGULATIONS.  SEE, E.G., NATIONAL BROADCASTING CO. V. UNITED STATES,
319 U.S. 190; LABOR BOARD V. HEARST PUBLICATIONS, INC., 322 U.S. 111;
REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793; SECURITIES &
EXCHANGE COMM'N V. CHENERY CORP., 332 U.S. 194; LABOR BOARD V. SEVEN-UP
BOTTLING CO., 344 U.S. 344. 

IN THE PRESENT CASE WE NEED ONLY CONSIDER THE STATUTORY AUTHORIZATION
FOR SEC. 36.4320(A)(4) WHICH PROVIDES THAT "IF A MINIMUM AMOUNT (THE
UPSET PRICE) HAS NOT BEEN SPECIFIED BY THE ADMINISTRATOR ...  THE
HOLDER SHALL CREDIT AGAINST THE INDEBTEDNESS THE NET PROCEEDS OF THE
SALE  ...  ."  IT WOULD, OF COURSE, HAVE BEEN POSSIBLE FOR THE
ADMINISTRATOR TO HAVE PROMULGATED REGULATIONS CONSISTENT WITH MUCH OF
THE PRESENT SCHEME WHICH WOULD HAVE, IN ADDITION, ACCEPTED THE BENEFITS
OF LOCAL LAW WHICH TENDED FURTHER TO REDUCE A GUARANTOR'S RISK OF LOSS
FROM SALE OF THE MORTGAGED PROPERTY AT AN INADEQUATE PRICE.  THUS, WITH
SPECIFIC REFERENCE TO THE PENNSYLVANIA DEFICIENCY JUDGMENT ACT, THERE
WOULD HAVE BEEN NOTHING INHERENTLY ILLOGICAL ABOUT ADMINISTRATIVE
REGULATIONS PROVIDING FOR AN "UPSET PRICE" DEVICE AND THEN ADDING THAT,
IN SITUATIONS WHERE THE "UPSET PRICE" TECHNIQUE WAS NOT USED BY THE
ADMINISTRATOR, THE VETERANS' ADMINISTRATION WAS TO BE ENTITLED TO THE
BENEFITS OF THE STATE JUDICIAL ASSESSMENT OF THE VALUE OF PROPERTY
PURCHASED BY THE MORTGAGEE.  HOWEVER, THE VETERANS' ADMINISTRATOR HAS
CHOSEN NOT TO TAKE ADVANTAGE OF LAWS LIKE THAT OF PENNSYLVANIA.  IF
THIS CHOICE REPRESENTS A REASONABLE ACCOMMODATION OF CONFLICTING
POLICIES THAT WERE COMMITTED TO THE AGENCY'S CARE BY THE STATUTE, WE
SHOULD NOT DISTURB IT UNLESS IT APPEARS FROM THE STATUTE OR ITS
LEGISLATIVE HISTORY THAT THE ACCOMMODATION IS NOT ONE THAT CONGRESS
WOULD HAVE SANCTIONED. 

IT IS DOUBTLESS TRUE THAT THE POLICY OF THE ACT IS, BROADLY STATED,
TO ENABLE VETERANS TO OBTAIN LOANS AND TO OBTAIN THEM WITH THE LEAST
RISK OF LOSS UPON FORECLOSURE, TO BOTH VETERAN AND THE VETERANS'
ADMINISTRATION AS GUARANTOR OF THE VETERAN'S INDEBTEDNESS, AND IT IS
EQUALLY CLEAR THAT HAD THE REGULATIONS ADOPTED OR INCLUDED THE
PROVISIONS OF THE PENNSYLVANIA DEFICIENCY JUDGMENT ACT THIS WOULD HAVE
FURTHERED AT LEAST THE SECOND OF THESE PURPOSES.  HOWEVER, THERE ARE
ALSO AMPLE INDICATIONS BOTH IN THE ACT AND IN ITS LEGISLATIVE HISTORY
THAT CONGRESS INTENDED THE GUARANTY PROVISIONS TO OPERATE AS THE
SUBSTANTIAL EQUIVALENT OF A DOWN PAYMENT IN THE SAME AMOUNT BY THE
VETERAN ON THE PURCHASE PRICE, IN ORDER TO INDUCE PROSPECTIVE MORTGAGEE
CREDITORS TO PROVIDE 100% FINANCING FOR A VETERAN'S HOME.  (FN10)  THE
REGULATIONS WHICH THE ADMINISTRATOR HAS ADOPTED PROVIDE WHAT THE AGENCY
COULD ALLOWABLY VIEW AS A MORE EFFECTIVE RECONCILIATION OF THESE
TWOFOLD ENDS THAN MIGHT BE ACCOMPLISHED BY A COMPLETE OR PARTIAL
ADOPTION OF THE LAW OF A STATE SUCH AS PENNSYLVANIA. 

THE REGULATIONS ASSURE A PENNSYLVANIA MORTGAGEE-CREDITOR THAT HE WILL
BE ABLE EITHER TO RECOVER THE FULL AMOUNT OF THE GUARANTY OR TO SELL
THE MORTGAGED PROPERTY TO THE UNITED STATES AND RECOVER THE AMOUNT OF
ITS LOSS AFTER SUCH SALE. FOR EXAMPLE, IN THE PRESENT SITUATION
EXCELSIOR KNEW THAT IT COULD EITHER RECOVER $4,000 FROM THE VETERANS'
ADMINISTRATION AND KEEP THE MORTGAGED PROPERTY, OR THAT IT COULD SELL
THE MORTGAGED PROPERTY TO THE UNITED STATES, RECOVERING ON ITS GUARANTY
THE AMOUNT BY WHICH THE UNPAID DEBT EXCEEDED THE PRICE WHICH THE UNITED
STATES HAD PAID.  THE ONLY RISK OF LOSS WITH WHICH EXCELSIOR WOULD HAVE
BEEN FACED WAS THE RISK OF HAVING ON ITS HANDS A PROPERTY WORTH LESS
THAN $9,000 TO SECURE A RESIDUAL DEBT OF $9,000 (AFTER THE UNITED
STATES HAD PAID $4,000 OF THE TOTAL DEBT OF $13,000).  THIS IS
PRECISELY THE RISK WHICH EXCELSIOR WOULD HAVE HAD TO ASSUME HAD IT
INSISTED UPON A $4,000 DOWN PAYMENT BY THE VETERAN AND LENT $9,000 ON
THE PROPERTY.  PRESUMABLY THEREFORE IT WAS WILLING TO ACCEPT A $4,000
GUARANTEE UNDER THE ADMINISTRATOR'S REGULATIONS IN EXCHANGE FOR A
$4,000 DOWN PAYMENT. 

IN CONTRAST, A MORTGAGEE WHOSE FEDERAL GUARANTY WAS SUBJECT TO THE
LAW OF A STATE SUCH AS PENNSYLVANIA WOULD BE SUBJECTED BOTH TO AN
ADDITIONAL COST AND TO AN ADDITIONAL RISK, NEITHER OF WHICH IS PRESENT
WHEN THERE IS AN EQUIVALENT DOWN PAYMENT.  THE ADDITIONAL COST IS THAT
REQUIRED IN EVERY CASE TO LITIGATE THE VALUE OF THE MORTGAGED
PROPERTY.  THE ADDITIONAL RISK IS THAT, IF IT WAS JUDICIALLY DETERMINED
THAT THE PROPERTY WAS WORTH MORE THAN THE AMOUNT FOR WHICH THE
MORTGAGEE COULD IN FACT SELL IT, THE MORTGAGEE WOULD HAVE TO ABSORB THE
COST OF THE JUDICIAL ERROR AND COULD RECOVER ON ITS GUARANTY ONLY THE
DIFFERENCE BETWEEN THE UNPAID DEBT AND THE AMOUNT OF THE JUDICIAL
ESTIMATE OF THE VALUE OF THE PROPERTY.  THUS IF THE VALUE OF THE
MORTGAGED PROPERTY IN THE PRESENT CASE HAD BEEN JUDICIALLY ASSESSED AT
$10,000, EXCELSIOR, AFTER PAYMENT OF THE RESULTING $3,000 ON THE
GUARANTY, WOULD HAVE BEEN LEFT WITH THE MORTGAGED PROPERTY IN PLACE OF
AN UNREQUITED $10,000 LOAN, WHEREAS HAD IT INSISTED ON A $4,000 DOWN
PAYMENT FROM THE VETERAN IT WOULD HAVE HAD THE MORTGAGED PROPERTY TO
STAND FOR A $9,000 LOAN.  (FN11) 

WE CANNOT SAY THAT A PENNSYLVANIA LENDER WOULD NOT PREFER A DOWN
PAYMENT TO A GUARANTEED LOAN IN THE SAME AMOUNT IF THE PENNSYLVANIA
DEFICIENCY JUDGMENT ACT WERE APPLICABLE.  NOR CAN WE SAY THAT THE
ADMINISTRATOR HAS UNREASONABLY SACRIFICED EITHER THE GOVERNMENT'S OR
THE VETERAN'S PROTECTION IN RELYING EXCLUSIVELY ON THE "UPSET PRICE"
DEVICE IN ORDER TO PRESERVE THE INTERCHANGEABILITY OF A GUARANTY WITH A
DOWN PAYMENT.  THE VETERANS' ADMINISTRATION CAN AND DOES PROTECT ITSELF
FROM A SALE AT AN INADEQUATE PRICE BY SPECIFYING THE MINIMUM CREDIT
WHICH THE MORTGAGEE MUST SUBTRACT FROM THE UNPAID DEBT.  IN PROTECTING
ITSELF IT ALSO PLACES ITS OWN FINANCIAL RESOURCES BEHIND THE DEBTOR
VETERAN WHO MAY BE FORCED TO REIMBURSE THE ADMINISTRATOR ONLY IF THE
ADMINISTRATOR CONSIDERS THAT THE PROPERTY HAS BEEN SOLD AT A FAIR
PRICE, AND WHO RETAINS ALL THE BENEFITS OF STATE LAW AS AGAINST THE
MORTGAGEE. 

WE CONSIDER THE REGULATIONS TO BE A REASONABLE ACCOMMODATION OF THE
STATUTORY ENDS, FIRST, OF MAKING A FEDERAL GUARANTY THE SUBSTANTIAL
EQUIVALENT OF A DOWN PAYMENT, AND, SECOND, OF PROTECTING BOTH THE
VETERANS' ADMINISTRATION AND THE VETERAN FROM UNNECESSARY LOSS ON A
FORECLOSURE SALE.  AND SINCE WE FIND NOTHING IN THE STATUTE OR THE
LEGISLATIVE HISTORY ANTAGONISTIC TO THIS ACCOMMODATION, WE HOLD THE
REGULATIONS TO BE A VALID EXERCISE OF THE AUTHORITY GRANTED THE
ADMINISTRATOR IN SEC. 504 OF THE SERVICEMEN'S READJUSTMENT ACT (NOTE 9,
SUPRA). 

                                       III. 

RESPONDENT'S FINAL CONTENTION IS THAT EVEN THOUGH THE VETERANS'
ADMINISTRATION WAS OBLIGATED ON ITS GUARANTY TO EXCELSIOR, THE
ADMINISTRATION NEVERTHELESS HAD NO RIGHT TO INDEMNITY FROM HIM.  IT IS
ARGUED, FIRST, THAT UNDER THE ACT THE ADMINISTRATION, IN CIRCUMSTANCES
LIKE THESE, CAN RECOVER OVER AGAINST THE VETERAN ONLY ON A THEORY OF
SUBROGATION TO THE MORTGAGEE'S RIGHTS.  THE ADMINISTRATOR HAVING
PROCEEDED IN THIS INSTANCE SIMPLY ON A THEORY OF INDEMNITY, IT IS
CLAIMED THAT THERE IS NO STATUTORY AUTHORIZATION FOR THE PRESENT SUIT. 

PRIOR TO THE AMENDMENT OF THE ACT IN 1945, IT WAS ASSUMED THAT THE
ORDINARY CONCOMITANTS OF A GUARANTY RELATIONSHIP WOULD FOLLOW UPON THE
MERE AUTHORIZATION OF GOVERNMENT GUARANTEED LOANS AND THAT THESE
INCLUDED THE GUARANTOR'S RIGHT OF INDEMNITY.  RESTATEMENT OF THE LAW OF
SECURITY, SEC. 104; DECISIONS OF THE ADMINISTRATOR OF VETERANS'
AFFAIRS, NO. 625, VOL. 1, P. 1154.  THE 1945 AMENDMENTS MADE EXPLICIT
THAT PAYMENT OF THE GUARANTY WOULD BE DUE ON THE VETERAN'S DEFAULT AND
THAT THEREUPON THE ADMINISTRATOR "SHALL BE SUBROGATED TO THE RIGHTS OF
THE HOLDER OF THE OBLIGATION TO THE EXTENT OF THE AMOUNT PAID ON THE
GUARANTY." 

IT IS ARGUED THAT THIS AMENDMENT, BY NEGATIVE IMPLICATION, OVERRULED
OR REJECTED WHAT THE ADMINISTRATOR HAD PREVIOUSLY REGARDED AS HIS
INDEPENDENT RIGHT TO INDEMNITY, BUT SURELY THIS IS CARRYING A NEGATIVE
IMPLICATION TOO FAR.  WE CANNOT AGREE THAT CONGRESS, WITHOUT ANY
STATUTORY REFERENCE TO THE PROBLEM AND WITHOUT ANY DISCUSSION OF IT,
INTENDED TO RELIEVE THE VETERAN OF DIRECT LIABILITY FOR AMOUNTS
PROPERLY PAID ON HIS BEHALF BY THE VETERANS' ADMINISTRATION.  NOT ONLY
MIGHT SUCH A WAIVER OF A GUARANTOR'S NORMAL RIGHTS REQUIRE A MORE
BURDENSOME ROUTE TO RECOVERY OVER FROM THE PRINCIPAL, BUT IT WOULD
DEPRIVE THE GUARANTOR OF ANY RECOVERY ON OCCASIONS WHEN THE MORTGAGEE'S
RIGHTS WERE LIMITED AS AGAINST THE DEBTOR BY STATE LAW, YET WERE
PROTECTED AGAINST THE ADMINISTRATOR BY STATE OR FEDERAL LAW.  RELIEF
FROM LIABILITY IN THESE CIRCUMSTANCES WOULD CONVERT A GUARANTY INTO A
GRANT OF AID.  BUT THE ENTIRE HISTORY OF THE "HOME LOAN" PROVISIONS OF
THE STATUTE IS INCONSISTENT WITH AN INTENT TO MAKE OUTRIGHT GRANTS,
RATHER THAN LOANS OF CASH (S. 1767, 78TH CONG., 2D SESS.) OR CREDIT, TO
RETURNING SERVICEMEN. 

MOREOVER, THE RECOGNITION OF A LOSS TO THE GUARANTOR MERELY BECAUSE
OF A FAILURE OF THE LENDER'S RIGHTS AGAINST THE PRINCIPAL IS
INCOMPATIBLE WITH THE BACKGROUND OF GENERAL SURETY LAW AGAINST WHICH
THE STATUTE WAS DRAWN.  SEE, E.G., LESLIE V. COMPTON, 103 KAN. 92, 172
P. 1015.  INDEED, AT THE TIME OF THE 1945 AMENDMENTS TO THE ACT THE
ADMINISTRATOR HAD ALREADY RULED THAT THERE WAS A RIGHT TO RECOVER OVER
AGAINST THE VETERAN ON A THEORY OF INDEMNITY IN SITUATIONS WHERE
RECOVERY BY WAY OF SUBROGATION WAS BARRED BY STATE LAW.  DECISIONS OF
THE ADMINISTRATOR OF VETERANS' AFFAIRS, NO. 625, VOL. 1, P. 1154. 

FOR THESE REASONS, WE ARE CONSTRAINED TO AGREE WITH THE UNIFORM
CONSTRUCTION OF THE LOWER COURTS, INCLUDING THAT OF THE TWO COURTS
BELOW, THAT THE STATUTE AFFORDS AN INDEPENDENT RIGHT OF INDEMNITY TO
THE VETERANS' ADMINISTRATION.  SEE UNITED STATES V. SHIMER, 276 F.2D
792; MCKNIGHT V. UNITED STATES, 259 F.2D 540; UNITED STATES V. JONES,
155 F. SUPP. 52; UNITED STATES V. GALLARDO, 154 F. SUPP. 373; UNITED
STATES V. HENDERSON, 121 F. SUPP. 343. 

FINALLY, WE FIND UNTENABLE RESPONDENT'S ARGUMENT THAT THE APPLICABLE
REGULATION DOES NOT SUPPORT RECOVERY BECAUSE THERE WAS NO DEBT DUE FROM
THE VETERAN AT THE TIME OF PAYMENT ON THE GUARANTY.  SECTION
36.4323(E), 11 FED. REG. 2123, PROVIDES:  "ANY AMOUNTS PAID BY THE
ADMINISTRATOR ON ACCOUNT OF THE LIABILITIES OF ANY VETERAN GUARANTEED
OR INSURED UNDER THE PROVISIONS OF THE ACT SHALL CONSTITUTE A DEBT
OWING TO THE UNITED STATES BY SUCH VETERAN."  THE REGULATION IS MERELY
DECLARATORY OF A SURETY'S CUSTOMARY RIGHT OF INDEMNITY FOR AMOUNTS PAID
PURSUANT TO AN OBLIGATION OF THE GUARANTOR ASSUMED WITH THE CONSENT OF
THE PRINCIPAL.  RESTATEMENT OF THE LAW OF SECURITY, SEC. 104.  THIS
RIGHT IS IN GENERAL UNAFFECTED BY DEFENSES OF THE PRINCIPAL WHICH ARE
NOT AVAILABLE TO THE GUARANTOR.  (FN12)  SIMPSON, SURETYSHIP, AT P.
227; STEARNS, LAW OF SURETYSHIP, SEC. 284.  THE REGULATION CERTAINLY
INDICATES NO PURPOSE TO DEPART FROM THE GENERAL RULE IN THE CASE OF
GUARANTIES BY THE VETERANS' ADMINISTRATION.  (FN13) 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED. 

FN1  58 STAT. 291, AS AMENDED BY 59 STAT. 626. 

FN2  "SEC.  500.  (A)  ANY PERSON WHO SHALL HAVE SERVED IN THE ACTIVE
MILITARY OR NAVAL SERVICE OF THE UNITED STATES AT ANY TIME ON OR AFTER
SEPTEMBER 16, 1940, AND PRIOR TO THE TERMINATION OF THE PRESENT WAR
...  SHALL BE ELIGIBLE FOR THE BENEFITS OF THIS TITLE.  ANY LOAN MADE
BY SUCH VETERAN WITHIN TEN YEARS AFTER THE TERMINATION OF THE WAR FOR
ANY OF THE PURPOSES, AND IN COMPLIANCE WITH THE PROVISIONS, SPECIFIED
IN THIS TITLE, IS AUTOMATICALLY GUARANTEED BY THE GOVERNMENT BY THIS
TITLE IN AN AMOUNT NOT EXCEEDING FIFTY PER CENTUM OF THE LOAN:
PROVIDED, THAT THE AGGREGATE AMOUNT GUARANTEED SHALL NOT EXCEED  ...
$4,000 IN THE CASE OF REAL-ESTATE LOANS  ...  . 

"(B)  LOANS GUARANTEED UNDER THIS TITLE SHALL BE PAYABLE UNDER SUCH
TERMS AND CONDITIONS AS MAY BE AGREED UPON BY THE PARTIES THERETO,
SUBJECT TO THE CONDITIONS AND LIMITATIONS OF THIS TITLE AND THE
REGULATIONS ISSUED PURSUANT TO SECTION 504:  PROVIDED, THAT THE
LIABILITY UNDER THE GUARANTY WITHIN THE LIMITATIONS OF THIS TITLE SHALL
DECREASE OR INCREASE PRO RATA WITH ANY DECREASE OR INCREASE OF THE
AMOUNT OF THE UNPAID PORTION OF THE OBLIGATION  ...  ." 

FN3  THE COMPUTATION OF THE AMOUNT OF THE UNPAID DEBT AND THE AMOUNT
CONSEQUENTLY OWING ON THE GUARANTY WILL BE OPEN FOR FURTHER
CONSIDERATION BY THE DISTRICT COURT ON THE REMAND WHICH WILL RESULT
FROM THIS OPINION. 

FN4  PURDON'S PA. STAT., TIT. 12, SECS. 2621.1 - 2621.11. 

FN5  SECTION 36.4321(A) PROVIDES IN RELEVANT PART: 

"COMPUTATION OF GUARANTY CLAIMS; SUBSEQUENT ACCOUNTINGS.  (A) SUBJECT
TO THE LIMITATION THAT THE TOTAL AMOUNTS PAYABLE SHALL IN NO EVENT
EXCEED THE AMOUNT ORIGINALLY GUARANTEED, THE AMOUNT PAYABLE ON A CLAIM
FOR THE GUARANTY SHALL BE THE PERCENTAGE OF THE LOAN ORIGINALLY
GUARANTEED APPLIED TO THE INDEBTEDNESS COMPUTED AS OF THE DATE OF CLAIM
BUT NOT LATER THAN (1) THE DATE OF JUDGMENT OR OF DECREE OF FORECLOSURE
...  ." 

FN6  SECTION 506 OF THE ACT PROVIDES:  "IN THE EVENT OF DEFAULT IN
THE PAYMENT OF ANY LOAN GUARANTEED UNDER THIS TITLE, THE HOLDER OF THE
OBLIGATION SHALL NOTIFY THE ADMINISTRATOR WHO SHALL THEREUPON PAY TO
SUCH HOLDER THE GUARANTY NOT IN EXCESS OF THE PRO RATA PORTION OF THE
AMOUNT ORIGINALLY GUARANTEED, AND SHALL BE SUBROGATED TO THE RIGHTS OF
THE HOLDER OF THE OBLIGATION TO THE EXTENT OF THE AMOUNT PAID ON THE
GUARANTY  ...  ." 

FN7 SECTION 36.4320 (WHOSE LENGTH AND INTRICACY IS SUCH AS TO MAKE
IMPRACTICABLE ITS SPREADING IN THIS OPINION) WAS AMENDED IN PARTICULARS
NOT HERE RELEVANT AND WAS GENERALLY CLARIFIED BETWEEN THE DATES OF THE
LOAN AND GUARANTEE AND THE DATES OF FORECLOSURE AND SALE.  WE CONSIDER
APPLICABLE THE LATER WORDING IN LIGHT OF SEC. 36.4300 OF THE
REGULATIONS WHICH WAS IN EFFECT AT THE DATE OF THE LOAN AND WHICH
PROVIDED: 

"APPLICABILITY.  THE REGULATIONS IN THIS PART AND AMENDMENTS THERETO
SHALL BE APPLICABLE TO EACH LOAN ENTITLED TO AN AUTOMATIC GUARANTY, OR
OTHERWISE GUARANTEED OR INSURED, ON OR AFTER THE DATE OF PUBLICATION
THEREOF IN THE FEDERAL REGISTER, AND SHALL BE APPLICABLE TO SUCH LOANS
PREVIOUSLY GUARANTEED OR INSURED TO THE EXTENT THAT NO LEGAL RIGHTS
VESTED THEREUNDER ARE IMPAIRED.  12 FED. REG. 8342. 

FN8  THIS CONCLUSION IS FORTIFIED BY SEC. 36.4320(D) WHICH
SPECIFICALLY EXCLUDES AND WAIVES ONE TYPE OF STATE PROTECTION OF
GUARANTORS AND LENDERS WHICH OTHERWISE WOULD HAVE SEEMED TO FIT THE
OTHER PROVISIONS OF THE SECTION.  SUBDIVISION (D) PROVIDES: 

"IF A MINIMUM BID IS REQUIRED UNDER APPLICABLE STATE LAW, OR DECREE
OF FORECLOSURE OR ORDER OF SALE, OR OTHER LAWFUL ORDER OR DECREE, THE
HOLDER MAY BID AN AMOUNT NOT EXCEEDING SUCH AMOUNT LEGALLY REQUIRED. 
IF AN AMOUNT HAS BEEN SPECIFIED BY THE ADMINISTRATOR AND THE HOLDER IS
THE SUCCESSFUL BIDDER FOR AN AMOUNT NOT EXCEEDING THE AMOUNT LEGALLY
REQUIRED, SUCH SPECIFIED AMOUNT SHALL GOVERN FOR THE PURPOSES OF THIS
GUARANTY OR INSURANCE.  IN THE EVENT NO AMOUNT IS SPECIFIED AND THE
HOLDER IS THE SUCCESSFUL BIDDER FOR AN AMOUNT NOT EXCEEDING THE AMOUNT
LEGALLY REQUIRED, THE AMOUNT PAID OR PAYABLE BY THE ADMINISTRATOR UNDER
THE GUARANTY SHALL NOT BE SUBJECT TO ANY ADJUSTMENT BY REASON OF SUCH
BID." 

FN9  SECTION 504 OF THE ACT PROVIDES:  "THE ADMINISTRATOR IS
AUTHORIZED TO PROMULGATE SUCH RULES AND REGULATIONS NOT INCONSISTENT
WITH THIS TITLE, AS AMENDED, AS ARE NECESSARY AND APPROPRIATE FOR
CARRYING OUT THE PROVISIONS OF THIS TITLE, AND MAY DELEGATE TO
SUBORDINATE EMPLOYEES AUTHORITY TO ISSUE CERTIFICATES, OR OTHER
EVIDENCE, OF GUARANTY OF LOANS GUARANTEED UNDER THE PROVISIONS OF THIS
TITLE, AND TO EXERCISE OTHER ADMINISTRATIVE FUNCTIONS HEREUNDER." 

FN10  SEE, E.G., H.R. REP. NO. 1418, 78TH CONG., 2D SESS., PP. 3, 9;
HEARINGS BEFORE SUBCOMMITTEE OF THE SENATE COMMITTEE ON FINANCE ON H.R.
3749, 79TH CONG., 1ST SESS., PP.  31-33 (GENERAL OMAR BRADLEY). 

FN11  PENNSYLVANIA LAW DOES NOT REQUIRE A MORTGAGEE WHO PURCHASES THE
MORTGAGED PROPERTY AT A FORECLOSURE SALE FOR AN AMOUNT LESS THAN THE
UNPAID DEBT TO RETURN ANY PORTION OF THE DOWN PAYMENT PURSUANT TO A
JUDICIAL ASSESSMENT OF THE VALUE OF THE PROPERTY. 

FN12  MOREOVER, AT THE TIME THE VETERANS' ADMINISTRATION BECAME
LIABLE ON ITS GUARANTY (I.E., ON THE VETERAN'S DEFAULT AND PRIOR TO THE
FORECLOSURE SALE, SEE NOTES 5 AND 6, SUPRA) THE ADMINISTRATION AND THE
RESPONDENT VETERAN HAD NO DEFENSES TO PAYMENT EITHER UNDER STATE LAW OR
UNDER THE REGULATIONS OF THE ADMINISTRATOR. 

FN13  THIS IS MADE PARTICULARLY CLEAR BY THE FORM OF THE REGULATION
WHICH WAS THE PREDECESSOR OF 11 FED. REG. 2123.  THE EARLIER
REGULATION, 9 FED. REG. 12655, PROVIDED: 

"(A)  ANY AMOUNTS PAID TO THE CREDITOR BY THE ADMINISTRATOR PURSUANT
TO THE GUARANTY SHALL CONSTITUTE A DEBT DUE TO THE UNITED STATES BY THE
VETERAN ON WHOSE APPLICATION THE GUARANTY WAS MADE  ...  ."    MR.
JUSTICE BLACK AND MR. JUSTICE DOUGLAS WOULD AFFIRM THE JUDGMENT FOR THE
REASONS STATED BY THE COURT OF APPEALS, 276 F.2D 792. 
..END :










COMMUNIST PARTY, U.S.A. V. CATHERWOOD 367 U.S. 389 


NO. 495.  ARGUED MAY 4, 1961 - DECIDED JUNE 12, 1961 - 8 N.Y.2D 77, 168
N.E.2D 242, REVERSED AND CASE REMANDED. 


THE NEW YORK STATE INDUSTRIAL COMMISSIONER TERMINATED PETITIONERS'
REGISTRATIONS AND LIABILITY FOR STATE TAXATION AS EMPLOYERS UNDER THE
NEW YORK STATE UNEMPLOYMENT INSURANCE LAW, AND THE NEW YORK COURT OF
APPEALS SUSTAINED SUCH ACTION, ON THE GROUND THAT IT WAS REQUIRED BY
THE COMMUNIST CONTROL ACT OF 1954, WHICH DECLARES THAT THE COMMUNIST
PARTY OF THE UNITED STATES IS AN INSTRUMENTALITY OF A CONSPIRACY TO
OVERTHROW THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE AND
THAT IT AND ANY OF ITS SUCCESSORS "ARE NOT ENTITLED TO ANY OF THE
RIGHTS, PRIVILEGES, AND IMMUNITIES ATTENDANT UPON LEGAL BODIES CREATED
UNDER THE JURISDICTION OF THE LAWS OF THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF."  THIS TERMINATION OF STATE REGISTRATION
HAD THE INDIRECT EFFECT OF INCREASING PETITIONERS' TAX RATE UNDER THE
FEDERAL UNEMPLOYMENT TAX ACT FROM ABOUT 1% TO 3%.  THE INTERNAL REVENUE
SERVICE CONTINUED TO TREAT PETITIONERS AS COVERED BY THE LATTER ACT AND
TO COLLECT TAXES FROM THEM THEREUNDER.  HELD:  THE COMMUNIST CONTROL
ACT OF 1954 DOES NOT REQUIRE EXCLUSION OF PETITIONERS FROM NEW YORK'S
UNEMPLOYMENT COMPENSATION SYSTEM; THE JUDGMENT IS REVERSED AND THE CASE
IS REMANDED FOR FURTHER PROCEEDINGS.  PP. 389-395. 

COMMUNIST PARTY, U.S.A., ET AL. V. CATHERWOOD, INDUSTRIAL COMMISSIONER. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WE HERE REVIEW THE UPHOLDING BY THE NEW YORK COURT OF APPEALS OF THE
ACTION OF THE NEW YORK STATE INDUSTRIAL COMMISSIONER TERMINATING
PETITIONERS' REGISTRATION AND LIABILITY TO STATE TAXATION AS EMPLOYERS
UNDER THE NEW YORK STATE UNEMPLOYMENT INSURANCE LAW.  N.Y. LABOR LAW,
SECS. 511-512, 517-518, 570, 577, 581.  THIS DETERMINATION WAS EFFECTED
UNDER WHAT WAS CONCEIVED TO BE THE COMPULSION OF A FEDERAL STATUTE, THE
COMMUNIST CONTROL ACT OF 1954, 68 STAT. 775, 50 U.S.C. SECS. 841-844,
WHICH PROVIDES, IN PERTINENT PART: 

"SECTION 2.  THE CONGRESS HEREBY FINDS AND DECLARES THAT THE
COMMUNIST PARTY OF THE UNITED STATES, ALTHOUGH PURPORTEDLY A POLITICAL
PARTY, IS IN FACT AN INSTRUMENTALITY OF A CONSPIRACY TO OVERTHROW THE
GOVERNMENT OF THE UNITED STATES  ...  .  THEREFORE THE COMMUNIST PARTY
SHOULD BE OUTLAWED. 

"SECTION 3.  THE COMMUNIST PARTY OF THE UNITED STATES, OR ANY
SUCCESSORS OF SUCH PARTY REGARDLESS OF THE ASSUMED NAME, WHOSE OBJECT
OR PURPOSE IS TO OVERTHROW THE GOVERNMENT OF THE UNITED STATES, OR THE
GOVERNMENT OF ANY STATE, TERRITORY, DISTRICT, OR POSSESSION THEREOF, OR
THE GOVERNMENT OF ANY POLITICAL SUBDIVISION THEREIN BY FORCE AND
VIOLENCE, ARE NOT ENTITLED TO ANY OF THE RIGHTS, PRIVILEGES, AND
IMMUNITIES ATTENDANT UPON LEGAL BODIES CREATED UNDER THE JURISDICTION
OF THE LAWS OF THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF;
AND WHATEVER RIGHTS, PRIVILEGES, AND IMMUNITIES WHICH HAVE HERETOFORE
BEEN GRANTED TO SAID PARTY OR ANY SUBSIDIARY ORGANIZATION BY REASON OF
THE LAWS OF THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, ARE
HEREBY TERMINATED: PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION
SHALL BE CONSTRUED AS AMENDING THE INTERNAL SECURITY ACT OF 1950, AS
AMENDED. 

NEW YORK HAS AN "EXPERIENCE RATING" SCHEME WHEREBY EMPLOYERS WITH
CONSISTENT RECORDS OF HIGH EMPLOYMENT LEVELS ARE TAXED AT A LOWER RATE
THAN WOULD OTHERWISE OBTAIN.  UNDER THE FEDERAL UNEMPLOYMENT TAX ACT,
26 U.S.C. SECS. 3301-3308, AN EMPLOYER IS ENTITLED TO A FEDERAL TAX
CREDIT FOR THE AMOUNT PAID IN STATE UNEMPLOYMENT TAXES.  IF THE STATE
TAXING STRUCTURE ALLOWS FOR A REDUCTION IN TAX RATE TO EMPLOYERS WITH
GOOD EMPLOYMENT RECORDS UNDER A FEDERALLY CERTIFIED "EXPERIENCE RATING"
SYSTEM, THE FEDERAL TAX IS NEVERTHELESS REDUCED BY THE HIGHEST RATE
IMPOSED BY THE STATE, SO THAT THE EMPLOYER RETAINS THE FULL BENEFIT OF
HIS EXPERIENCE RATING REDUCTION.  THUS, BEFORE THE TERMINATION OF THEIR
NEW YORK REGISTRATION THE COMBINED FEDERAL AND STATE TAX RATE OF THE
PETITIONER, COMMUNIST PARTY, U.S.A., WAS 1%, AND THAT OF THE
PETITIONER, COMMUNIST PARTY OF NEW YORK STATE, WAS, ACCORDING TO ITS
REPRESENTATIONS, 1.1%.  THE EFFECT OF THE REGISTRATION TERMINATION AS
TO BOTH WAS TO INCREASE THE RATE TO 3%, THE RATE PROVIDED IN THE
FEDERAL STATUTE.  (FN1) 

WE GRANTED CERTIORARI, 364 U.S. 918, TO CONSIDER THE PETITIONERS'
CLAIMS THAT NEW YORK HAS MISTAKENLY CONSTRUED THE COMMUNIST CONTROL ACT
OF 1954 TO REQUIRE TERMINATION OF THEIR STATUS AS EMPLOYERS UNDER THE
NEW YORK STATUTE, AND, CONTRARIWISE, THAT BOTH SEC. 3 OF THE COMMUNIST
CONTROL ACT, SO CONSTRUED, AND NEW YORK'S TERMINATION OF REGISTRATION
INFRINGED THE CONSTITUTION OF THE UNITED STATES.  (FN2) 

WE MUST REJECT AT THE OUTSET RESPONDENT'S CONTENTION THAT THE COURT
OF APPEALS' DECISION RESTED ON A DETERMINATION, BASED ON JUDICIAL
NOTICE WHICH WAS NOT DISPLACED BY ANY PROOF, THAT PETITIONERS WERE NOT
EMPLOYERS WITHIN THE MEANING OF SEC. 512 OF THE NEW YORK LABOR LAW, BUT
A CRIMINAL CONSPIRACY.  IT IS ENTIRELY CLEAR THAT THE INDUSTRIAL
COMMISSIONER AND THE UNEMPLOYMENT INSURANCE REFEREE, (FN3) THE
UNEMPLOYMENT INSURANCE APPEAL BOARD, (FN4) AND THE COURT OF APPEALS
(FN5) ALL BASED THEIR DETERMINATION SQUARELY ON WHAT THEY CONCEIVED TO
BE THE COMPULSION OF THE COMMUNIST CONTROL ACT.  THE COURT OF APPEALS'
AMENDED REMITTITUR, WHICH STATES THAT THE QUESTIONS OF THE CONSTRUCTION
AND CONSTITUTIONALITY OF THE COMMUNIST CONTROL ACT "WERE PRESENTED AND
NECESSARILY PASSED UPON," PUTS THE MATTER BEYOND DOUBT.  (FN6) 

FOLLOWING THE FAMILIAR RULE THAT DECISION OF CONSTITUTIONAL QUESTIONS
SHOULD BE AVOIDED WHEREVER FAIRLY POSSIBLE, WE TURN AT ONCE TO THE
FEDERAL STATUTE WHICH THIS COURT HAS NOT HERETOFORE HAD OCCASION TO
CONSTRUE.  APART FROM UNREVEALING RANDOM REMARKS DURING THE COURSE OF
DEBATE IN THE TWO HOUSES, THERE IS NO LEGISLATIVE HISTORY WHICH IN ANY
WAY SERVES TO GIVE CONTENT TO THE VAGUE TERMINOLOGY OF SEC. 3 OF THE
COMMUNIST CONTROL ACT.  THE STATUTE CONTAINS NO DEFINITION, AND NEITHER
COMMITTEE REPORTS NOR AUTHORITATIVE SPOKESMEN ATTEMPT TO GIVE ANY
DEFINITION, OF THE CLAUSE "RIGHTS, PRIVILEGES, AND IMMUNITIES ATTENDANT
UPON LEGAL BODIES CREATED UNDER THE JURISDICTION OF THE UNITED STATES
OR ANY POLITICAL SUBDIVISION THEREOF."  RESPONDENT WOULD HAVE US
CONSTRUE THIS LANGUAGE TO MEAN THAT WHEREVER A SITUATION ADVANTAGEOUS
TO THE PETITIONERS OCCURS BY REFERENCE TO THE STATUTORY OR COMMON LAW
OF A STATE OR ANY OTHER GOVERNMENT IN THE UNITED STATES, THIS IS TO BE
CONSIDERED A "RIGHT," "PRIVILEGE," OR "IMMUNITY," AND MUST BE DEEMED TO
BE WITHHELD BY THE ACT.  ON THIS BASIS NEW YORK HAS REASONED THAT
LIABILITY TO TAXATION AS AN EMPLOYER, THOUGH NOT A PRIVILEGE IN THE
ORDINARY SENSE OF THE TERM, IS NONETHELESS A RECOGNITION OF THE COMMON
LAW CONTRACTUAL CAPACITY TO EMPLOY, AND AS SUCH IS ADVANTAGEOUS TO
PETITIONERS; AND FURTHER, THAT AN EMPLOYER WHOSE EMPLOYEES ARE UNABLE
TO BENEFIT FROM STATE AND FEDERAL UNEMPLOYMENT INSURANCE PROGRAMS WILL
BE DISADVANTAGED IN FINDING AND KEEPING EMPLOYEES.  THEREFORE IT WAS
THOUGHT THAT THE COMMUNIST CONTROL ACT REQUIRED TERMINATION OF THE
REGISTRATION OF PETITIONERS AS EMPLOYERS. 

THIS INTERPRETATION, RAISING AS IT DOES NOVEL CONSTITUTIONAL
QUESTIONS, THE ANSWERS TO WHICH ARE NOT NECESSARILY CONTROLLED BY
DECISIONS OF THIS COURT IN CONNECTION WITH OTHER LEGISLATION DEALING
WITH THE COMMUNIST PARTY, MUST, WE THINK, BE REJECTED.  NOT ONLY DOES
THE LANGUAGE OF THE STATUTE FALL FAR SHORT OF COMPELLING SUCH AN
INTERPRETATION, BUT THERE ARE GOOD INDICATIONS THAT THE PARTICULAR
RESULT OF BARRING PETITIONERS AS EMPLOYERS UNDER STATE AND FEDERAL
UNEMPLOYMENT INSURANCE SYSTEMS WAS NOT WITHIN THE CONTEMPLATION OF THIS
ACT.  THE INTERNAL REVENUE SERVICE HAS CONTINUED TO COLLECT TAXES FROM
PETITIONERS UNDER THE FEDERAL UNEMPLOYMENT TAX ACT, (FN7) AND CONGRESS
IN 1956 HAS DEALT IN TERMS WITH A LIKE MATTER, EXCLUDING FROM FEDERAL
OLD-AGE, SURVIVORS AND DISABILITY BENEFITS, 42 U.S.C., C. 7, SUBCHAPTER
II, EMPLOYMENT WITH ANY ORGANIZATION REQUIRED TO REGISTER BY THE
SUBVERSIVE ACTIVITIES CONTROL BOARD AND REMOVING FROM THE COVERAGE OF
THE FEDERAL INSURANCE CONTRIBUTIONS ACT, 26 U.S.C., C. 21, ANY SUCH
ORGANIZATION, (FN8) THUS TYING THE EXCLUSION TO THE ADMINISTRATIVE FACT
FINDINGS AND DETERMINATIONS REQUIRED BY THE INTERNAL SECURITY ACT OF
1950, 64 STAT. 987; SEE COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES
CONTROL BOARD, ANTE, P. 1. 

IN FACE OF THESE CONSIDERATIONS WE SHOULD HESITATE LONG BEFORE
ATTRIBUTING TO CONGRESS A PURPOSE TO EFFECTUATE THE SIMILAR EXCLUSION
IN THIS INSTANCE BY LEGISLATIVE FIAT.  OUR RELUCTANCE TO ACCEPT A STATE
INTERPRETATION WHICH WOULD HAVE THAT EFFECT IS FORTIFIED BOTH BY THE
DIFFICULT CONSTITUTIONAL QUESTIONS THAT WOULD RESULT AND BY THE
UNDESIRABILITY OF HAVING CONFLICTING STATE AND FEDERAL ADMINISTRATIVE
INTERPRETATIONS OF A FEDERAL STATUTE ESTABLISHING THIS "COORDINATED AND
DUAL SYSTEM" (BUCKSTAFF CO. V. MCKINLEY, 308 U.S. 358, 364) OF
EMPLOYMENT INSURANCE. 

WE HOLD THAT THE COMMUNIST CONTROL ACT OF 1954 DOES NOT REQUIRE
EXCLUSION OF THE PETITIONERS FROM NEW YORK'S UNEMPLOYMENT COMPENSATION
SYSTEM.  SINCE THE NEW YORK COURT OF APPEALS' DECISION UNMISTAKABLY
RESTED ON THE CONTRARY PREMISE, ITS JUDGMENT MUST BE REVERSED AND THE
CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THE BASIC FEDERAL RATE WAS INCREASED TO 3.1% BY PUBLIC LAW 86
778, SEC. 523(C), 74 STAT. 924, 982, EFFECTIVE 1961.  26 U.S.C. SEC.
3301. 

FN2  PETITIONERS ARGUE THAT THE ACT ON ITS FACE AND AS APPLIED
VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT AND ART. I, SEC.
9, CL. 3 OF THE FEDERAL CONSTITUTION, WHICH PROVIDES THAT "NO BILL OF
ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED."  PETITIONERS ALSO
CONTINGENTLY ASSERT A FOURTEENTH AMENDMENT CLAIM, SEE NOTE 6, INFRA. 

FN3  THE REFEREE, IN REVIEWING THE ADMINISTRATIVE ACTION OF THE
COMMISSIONER, STATED THAT "THE COMMISSIONER'S REPRESENTATIVES  ...
URGE THAT CONGRESS HAS EFFECTIVELY OUTLAWED THE COMMUNIST PARTY AND
THUS, BY FORCE OF LAW, THE REFEREE IS BOUND TO FIND THAT  ...  THERE
COULD NOT HAVE BEEN ANY VALID EMPLOYMENT  ...  ."  (R. 5.)  THIS
CONTENTION THE REFEREE ACCEPTED, HOLDING THAT "CONGRESS EFFECTIVELY
TERMINATED THE RIGHT OF THE PARTIES TO ENTER INTO CONTRACTS OF
EMPLOYMENT  ...  ."  (R. 7.) 

FN4  THE BOARD AFFIRMED THE REFEREE'S CONCLUSIONS OF LAW.  (R. 2.) 

FN5  SEE 8 N.Y.2D 77, AT 83, 168 N.E.2D 242, AT 245, FOR THE OPINION
OF CHIEF JUDGE DESMOND, WITH WHOM JUDGE DYE CONCURRED, AND 8 N.Y.2D, AT
90-91, 168 N.E.2D, AT 248-249, FOR THE OPINION OF JUDGE VAN VOORHIS,
WITH WHOM JUDGE BURKE CONCURRED.  TWO JUDGES OF THE COURT DISSENTED,
AND ONE JUDGE DID NOT PARTICIPATE. 

FN6  PETITIONERS ALSO ARGUE THAT IF THE ADMINISTRATIVE ACTION RESTED
UPON SOME STATE PROCEDURAL GROUND, AS RESPONDENT CONTENDS, THEN THAT
ACTION VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  WE
DO NOT REACH THIS CONTENTION. 

FN7  THE SOLICITOR GENERAL, IN A LETTER TO THE CLERK OF THIS COURT
RESPONDING TO A CERTIFICATION BY THE COURT TO THE ATTORNEY GENERAL OF
THE UNITED STATES THAT THE CONSTITUTIONALITY OF A FEDERAL STATUTE HAD
BEEN DRAWN INTO QUESTION IN THIS CASE, STATED THAT "THERE IS NO NEED TO
FILE A BRIEF DESCRIBING THE PRACTICE OF FEDERAL AGENCIES IN
INTERPRETING THE STATUTE (THE COMMUNIST CONTROL ACT OF 1954), FOR THIS
INFORMATION IS ALREADY SET FORTH IN THE OPINION OF JUDGE FULD IN THE
NEW YORK COURT OF APPEALS."  THE DISSENTING OPINION OF JUDGE FULD
STATES THAT "THE FEDERAL AUTHORITIES, ADMITTEDLY AWARE OF THE
INDUSTRIAL COMMISSIONER'S POSITION, HAVE TAKEN ONE DIAMETRICALLY
OPPOSED AND CONTINUE TO RECOGNIZE THE COMMUNIST PARTY AS AN EMPLOYER
SUBJECT TO THE FEDERAL ACT." 

FN8  42 U.S.C. SEC. 410(A)(17) AND 26 U.S.C. SEC. 3121(B)(17), ACT OF
AUGUST 1, 1956, SEC.  121(C) AND (D), 70 STAT. 839.  NO SIMILAR
EXCLUSION, HOWEVER, HAS BEEN MADE FROM THE COVERAGE OF THE FEDERAL
UNEMPLOYMENT TAX ACT, 26 U.S.C., C. 23, WHICH IMPOSES THE FEDERAL TAX
AGAINST WHICH THE STATE TAXES INVOLVED IN THIS CASE ARE CREDITED.  SEE
P. 391, SUPRA. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :















POWER REACTOR DEVELOPMENT CO. V. INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, AFL-CIO 367 U.S. 396 


NO. 315.  ARGUED APRIL 26-27, 1961 - DECIDED JUNE 12, 1961* - 108 U.S.
APP. D.C. 97, 280 F.2D 645, REVERSED AND CASE REMANDED. 

*TOGETHER WITH NO. 454, UNITED STATES ET AL. V. INTERNATIONAL UNION
OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 


UNDER SECS. 104B AND 185 OF THE ATOMIC ENERGY ACT, THE ATOMIC ENERGY
COMMISSION ISSUED A PROVISIONAL CONSTRUCTION PERMIT AUTHORIZING A
PRIVATE CORPORATION TO CONSTRUCT, BUT NOT TO OPERATE, ON THE SHORES OF
LAKE ERIE ABOUT 35 MILES FROM THE CENTER OF DETROIT AND ABOUT 30 MILES
FROM THE CENTER OF TOLEDO, A FAST-NEUTRON BREEDER REACTOR FOR THE
GENERATION OF ELECTRIC POWER, SUBJECT TO THE CONDITION THAT, BEFORE
ISSUANCE OF A LICENSE TO OPERATE IT, THE FINAL HAZARDS SUMMARY REPORT
MUST SHOW THAT "THE FINAL DESIGN PROVIDES REASONABLE ASSURANCE  ...
THAT THE HEALTH AND SAFETY OF THE PUBLIC WILL NOT BE ENDANGERED BY
OPERATION OF THE REACTOR."  AFTER THREE LABOR UNIONS HAD INTERVENED AND
OPPOSED CONTINUATION OF THE PROVISIONAL CONSTRUCTION PERMIT IN EFFECT,
THE COMMISSION HELD EXTENSIVE HEARINGS, AFTER WHICH IT FOUND REASONABLE
ASSURANCE IN THE RECORD "THAT A UTILIZATION FACILITY OF THE GENERAL
TYPE PROPOSED  ...  CAN BE CONSTRUCTED AND OPERATED AT THE LOCATION
WITHOUT UNDUE RISK TO THE HEALTH AND SAFETY OF THE PUBLIC," AND IT
CONTINUED IN EFFECT THE PROVISIONAL CONSTRUCTION PERMIT, SUBJECT TO
SUBSTANTIALLY THE SAME CONDITION.  THE COURT OF APPEALS SET ASIDE THE
ORDER AND REMANDED THE CASE TO THE COMMISSION.  HELD:  THE COURT OF
APPEALS ERRED IN SETTING ASIDE THE COMMISSION'S ORDER CONTINUING THE
PROVISIONAL CONSTRUCTION PERMIT IN EFFECT.  PP. 398-416. 

(A)  IT IS CLEAR FROM THE FACE OF THE STATUTE THAT CONGRESS
CONTEMPLATED A STEP-BY-STEP PROCEDURE:  FIRST AN APPLICANT WOULD HAVE
TO GET A CONSTRUCTION PERMIT, THEN HE WOULD HAVE TO CONSTRUCT HIS
FACILITY, AND THEN HE WOULD HAVE TO ASK THE COMMISSION TO GRANT HIM A
LICENSE TO OPERATE THE FACILITY.  PP. 403-405. 

(B)  IT IS CLEAR FROM SEC. 182A THAT, BEFORE LICENSING THE OPERATION
OF THE REACTOR, THE COMMISSION WILL HAVE TO MAKE A POSITIVE FINDING
THAT OPERATION OF THE FACILITY "WILL PROVIDE ADEQUATE PROTECTION TO THE
HEALTH AND SAFETY OF THE PUBLIC."  PP. 405-406. 

(C)  UNDER THE PROVISIONS OF THE ACT AND THE COMMISSION'S
REGULATIONS, THE COMMISSION PROCEEDED PROPERLY IN ISSUING THE
PROVISIONAL CONSTRUCTION PERMIT ON A FINDING OF REASONABLE ASSURANCE IN
THE RECORD THAT A UTILIZATION FACILITY OF THE GENERAL TYPE PROPOSED
COULD BE CONSTRUCTED AND OPERATED AT THE LOCATION PROPOSED WITHOUT
UNDUE RISK TO THE HEALTH AND SAFETY OF THE PUBLIC, AND DEFERRING UNTIL
APPLICATION FOR THE GRANT OF AN OPERATING LICENSE A DEFINITIVE FINDING
THAT OPERATION OF THE FACILITY "WILL PROVIDE ADEQUATE PROTECTION FOR
THE HEALTH AND SAFETY OF THE PUBLIC."  PP. 406-410. 

(D)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE LEGISLATIVE
HISTORY OF THE ACT.  PP.  410-414. 

(E)  BEFORE GRANTING A PERMIT FOR CONSTRUCTION OF A REACTOR NEAR A
LARGE POPULATION CENTER, THE COMMISSION IS NOT REQUIRED TO FIND THAT
THERE ARE "COMPELLING REASONS" FOR DOING SO.  P. 414. 

(F)  THIS COURT CANNOT ASSUME THAT THE COMMISSION WILL EXCEED ITS
POWERS IN PASSING ON AN APPLICATION FOR A LICENSE TO OPERATE THE
REACTOR OR THAT THE MANY SAFEGUARDS PROVIDED TO PROTECT THE PUBLIC
INTEREST WILL NOT BE FULLY EFFECTIVE.  PP. 414-416. 

POWER REACTOR DEVELOPMENT CO. V. INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, AFL-CIO, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS THE FIRST CONTESTED LICENSING PROCEEDING TO BE DECIDED
BY THE ATOMIC ENERGY COMMISSION UNDER THE ATOMIC ENERGY ACT OF 1954, 68
STAT. 919, 42 U.S.C. SEC. 2011 ET SEQ. IT PRESENTS THE QUESTION WHETHER
THE COMMISSION ERRED IN CONTINUING IN EFFECT A PROVISIONAL CONSTRUCTION
PERMIT WHICH AUTHORIZES THE PETITIONER POWER REACTOR DEVELOPMENT
COMPANY TO CONSTRUCT, BUT NOT TO OPERATE, A FAST-NEUTRON BREEDER
REACTOR FOR THE GENERATION OF ELECTRIC POWER.  THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT SET THAT ORDER ASIDE.  108 U.S. APP.
D.C. 97, 280 F.2D 645 (1960).  WE GRANTED CERTIORARI, 364 U.S. 889
(1960), ON PETITIONS OF THE UNITED STATES AND OF POWER REACTOR
DEVELOPMENT COMPANY (HEREAFTER PRDC), TO DECIDE AN IMPORTANT QUESTION
OF THE SCOPE OF THE COMMISSION'S POWER UNDER THE ATOMIC ENERGY ACT OF
1954. 

STATED MORE PRECISELY, THE QUESTION BEFORE US IS WHETHER THE
COMMISSION, IN ISSUING A PERMIT FOR THE CONSTRUCTION OF A FACILITY
WHICH WILL UTILIZE NUCLEAR MATERIALS, SUCH AS THE POWER REACTOR
PRESENTLY INVOLVED, MUST MAKE THE SAME DEFINITIVE FINDING OF SAFETY OF
OPERATION AS IT ADMITTEDLY WILL HAVE TO MAKE BEFORE IT LICENSES ACTUAL
OPERATION OF THE FACILITY.  THE COURT OF APPEALS SAID: "IT IS
UNDISPUTED THAT THE COMMISSION MUST MAKE SUCH A FINDING WHEN IT
AUTHORIZES OPERATION.  THE QUESTION IS WHETHER IT MUST MAKE SUCH A
FINDING WHEN IT AUTHORIZES CONSTRUCTION.  IN OUR OPINION IT MUST."  108
U.S. APP. D.C., AT 100, 280 F.2D, AT 648.  PETITIONERS AGREE THAT SOME
FINDING DIRECTED TO SAFETY OF OPERATION MUST BE MADE AT THE
CONSTRUCTION-PERMIT STAGE OF THE PROCEEDING, BUT ARGUE THAT THE COURT
OF APPEALS ERRED IN HOLDING THAT THE COMMISSION MUST HAVE THE SAME
DEGREE OF CERTITUDE AT THIS PRELIMINARY POINT AS WHEN IT LICENSES
OPERATION.  IN ORDER TO UNDERSTAND HOW THE CONTROVERSY ARISES AND WHAT
IS INVOLVED IN ITS RESOLUTION, IT WILL BE NECESSARY TO STATE THE
PROCEEDINGS IN THE CASE AT SOME LENGTH, AND THEN DESCRIBE IN DETAIL THE
GOVERNING STATUTE AND ADMINISTRATIVE REGULATIONS.  FOR THE DECISION OF
THIS CASE ULTIMATELY TURNS ON A COMPARISON OF WHAT THE COMMISSION FOUND
WITH WHAT THE STATUTE AND REGULATIONS REQUIRE. 

THE CASE BEGAN ON JANUARY 7, 1956, WHEN PRDC FILED WITH THE
COMMISSION (HEREAFTER SOMETIMES REFERRED TO AS THE AEC) AN APPLICATION
TO CONSTRUCT AND OPERATE A DEVELOPMENTAL POWER REACTOR OF A RELATIVELY
NEW TYPE.  THIS DEVICE HAS TWO CHARACTERISTICS WHICH DISTINGUISH IT
FROM OTHER NUCLEAR REACTORS.  FIRST, THE NEUTRONS WHICH FLY ABOUT
INSIDE THE REACTOR (TO USE CRUDE BUT GRAPHIC LAYMAN'S TERMINOLOGY) AND
SPLIT ATOMS OF FISSIONABLE URANIUM-235 - THUS RELEASING NEW NEUTRONS
AND ENERGY IN THE FORM OF HEAT - ARE "FAST" NEUTRONS.  THAT IS, THEY
TRAVEL AT A VELOCITY OF ABOUT 10,000 MILES PER SECOND, MUCH FASTER THAN
NEUTRONS IN ORDINARY REACTORS.  SECOND, THIS REACTOR IS A "BREEDER": IT
HAS THE PROPERTY OF BEING ABLE TO PRODUCE ABOUT 1.2 TIMES AS MUCH
FISSIONABLE MATERIAL AS IT CONSUMES.  THIS RESULT COMES ABOUT THROUGH A
SORT OF MODERN ALCHEMY; WHEN THE NEUTRONS FLY OUTSIDE THE INNER CORE OF
THE REACTOR, WHICH IS COMPOSED OF FISSIONABLE U-235, THEY ENTER A
BLANKET OF NONFISSIONABLE U-238.  ATOMS IN THIS BLANKET ARE CHANGED,
WHEN STRUCK BY A NEUTRON, INTO PLUTONIUM, ITSELF A FISSIONABLE FUEL
WHICH CAN BE REMOVED FROM THE REACTOR AND BE PUT TO POSSIBLE USE IN
OTHER INSTALLATIONS.  THUS, THE REACTOR "BREEDS" PLUTONIUM FASTER THAN
IT USES UP U-235.  IT NOT ONLY GENERATES ENERGY TO PRODUCE ELECTRIC
POWER, IT ALSO CREATES NEW REACTOR FUEL.  THIS "BREEDER" EFFECT IS
ATTAINABLE BECAUSE OF THE USE OF FAST NEUTRONS.  TWO BORON CONTROL RODS
INSERTED INTO THE REACTOR ARE A MEANS DESIGNED TO REDUCE ITS POWER
LEVEL AT ANY TIME.  AND IN ADDITION TO THESE RODS, EIGHT MORE BORON
RODS ARE SUSPENDED BY AN ELECTROMAGNET OVER THE REACTOR; IN CASE THE
REACTIVITY RISES TO A DANGEROUSLY HIGH LEVEL, THESE SAFETY RODS ARE
INTENDED TO DROP INTO THE REACTOR AUTOMATICALLY AND SHUT IT DOWN
IMMEDIATELY.  THE WHOLE MACHINE IS HOUSED IN A SERIES OF THICK
CONCRETE, GRAPHITE, AND STEEL LAYERS, ALL UNDERGROUND.  OVER THIS
ENTIRE COMPLEX IS PLACED A FOOTBALL-SHAPED BUILDING, ENCLOSED IN A TWO
INCH STEEL SHIELD CAPABLE OF CONTAINING AN EXPLOSION EQUAL IN FORCE TO
1,000 POUNDS OF TNT, WHICH IS GREATER THAN ANY EXPLOSION WHICH ANY OF
THE EXPERTS WHO TESTIFIED IN THIS CASE BELIEVES IS AT ALL LIKELY TO
RESULT FROM AN ACCIDENT IN THE OPERATION OF THE REACTOR.  THE
APPLICATION, AFTER DESCRIBING THE REACTOR IN MUCH GREATER DETAIL THAN
THIS RUDIMENTARY SUMMARY, WENT ON TO PROVIDE THAT THE REACTOR WOULD BE
LOCATED AT LAGOONA BEACH, MICH., ON THE SHORES OF LAKE ERIE, ABOUT 35
MILES FROM THE CENTER OF DETROIT, MICH., AND ABOUT 30 MILES FROM THE
CENTER OF TOLEDO, OHIO. 

THE COMMISSION TOOK THE CASE UNDER ADVISEMENT AND, ON AUGUST 4, 1956,
DESPITE A REPORT OF ITS ADVISORY COMMITTEE ON REACTOR SAFEGUARDS WHICH
WAS AT BEST NONCOMMITTAL ABOUT THE PROBABLE SAFETY OF THE PROPOSED
REACTOR IN OPERATION, ISSUED A PROVISIONAL CONSTRUCTION PERMIT WITHOUT
HAVING HELD PUBLIC HEARINGS, AS THE LAW AT THAT TIME PERMITTED IT TO
DO.  THIS PERMIT WAS SUBJECT TO THE FOLLOWING CONDITION: 

"THE CONVERSION OF THIS PERMIT TO A LICENSE IS SUBJECT TO SUBMITTAL
BY PRDC TO THE COMMISSION (BY AMENDMENT OF THE APPLICATION) OF THE
COMPLETE, FINAL HAZARDS SUMMARY REPORT (PORTIONS OF WHICH MAY BE
SUBMITTED AND EVALUATED FROM TIME TO TIME).  THE FINAL HAZARDS SUMMARY
REPORT MUST SHOW THAT THE FINAL DESIGN PROVIDES REASONABLE ASSURANCE
...  THAT THE HEALTH AND SAFETY OF THE PUBLIC WILL NOT BE ENDANGERED BY
OPERATION OF THE REACTOR  ...  ." 

ON AUGUST 31, 1956, IN ACCORDANCE WITH THE COMMISSION'S THEN EXISTING
RULES OF PRACTICE, THE RESPONDENTS IN THIS COURT, INTERNATIONAL UNION
OF ELECTRICAL, RADIO, AND MACHINE WORKERS, UNITED AUTOMOBILE, AIRCRAFT,
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AND UNITED PAPERMAKERS
AND PAPERWORKERS, PETITIONED THE COMMISSION FOR PERMISSION TO INTERVENE
AND OPPOSE CONTINUATION IN EFFECT OF PRDC'S PROVISIONAL CONSTRUCTION
PERMIT.  THE AEC GRANTED PERMISSION TO INTERVENE ON OCTOBER 8, 1956,
AND SET THE CASE DOWN FOR A HEARING BEFORE ONE OF ITS HEARING
EXAMINERS.  EXTENSIVE HEARINGS WERE HELD BETWEEN JANUARY 8, 1957, AND
AUGUST 7, 1957, AND ON NOVEMBER 22, 1957, IN ACCORDANCE WITH THE AEC'S
ORDER SETTING THE CASE FOR HEARING BEFORE HIM, THE EXAMINER, INSTEAD OF
ISSUING AN INITIAL DECISION AND OPINION OF HIS OWN, TRANSFERRED AND
CERTIFIED THE RECORD OF THE HEARINGS TO THE FULL COMMISSION FOR ITS
CONSIDERATION.  ORAL ARGUMENT WAS HAD BEFORE THE COMMISSION ON MAY 29,
1958.  ON DECEMBER 10, 1958, THE COMMISSION RENDERED ITS "OPINION AND
INITIAL DECISION" CONTINUING PRDC'S PERMIT IN EFFECT, SUBJECT TO THE
SAME CONDITION RECITED ABOVE.  TO ITS OPINION WERE APPENDED EXTENSIVE
FINDINGS OF FACT, INCLUDING FINDING 22, WHICH IS OF CENTRAL IMPORTANCE
TO THE DECISION OF THIS CASE.  THAT FINDING READS AS FOLLOWS: 

"22.  THE COMMISSION FINDS REASONABLE ASSURANCE IN THE RECORD THAT A
UTILIZATION FACILITY OF THE GENERAL TYPE PROPOSED IN THE PRDC
APPLICATION AND AMENDMENTS THERETO CAN BE CONSTRUCTED AND WILL BE ABLE
TO BE OPERATED AT THE LOCATION PROPOSED WITHOUT UNDUE RISK TO THE
HEALTH AND SAFETY OF THE PUBLIC." 

COMMISSIONERS VANCE AND FLOBERG JOINED IN THE OPINION.  COMMISSIONER
GRAHAM FILED A SHORT CONCURRING OPINION AGREEING WITH THE COMMISSION'S
BASIC SAFETY FINDINGS, JUST QUOTED, BUT DOING SO IN MUCH SHORTER
COMPASS THAN THE MAJORITY.  COMMISSIONERS LIBBY AND MCCONE (THE
CHAIRMAN) TOOK NO PART IN THE DECISION.  THE RESULT OF THIS INITIAL
OPINION WAS AN ORDER CONTINUING PRDC'S PROVISIONAL CONSTRUCTION PERMIT
IN EFFECT, BUT CONTAINING THE SAME CONDITION WHICH THE ORIGINAL PERMIT,
ISSUED ON AUGUST 4, 1956, HAD CONTAINED. 

THE INTERVENING UNIONS, AS WAS THEIR RIGHT, FILED DETAILED EXCEPTIONS
TO THIS INITIAL DECISION.  THE COMMISSION FULLY RECONSIDERED ALL THE
CONTENTIONS AND REVIEWED THE EVIDENCE PRESENTED AT THE LENGTHY
HEARINGS, WITH PARTICULAR ATTENTION TO THE TESTIMONY OF THE SCIENTIFIC
EXPERTS, SEVERAL OF THEM MEMBERS OF THE ADVISORY COMMITTEE ON REACTOR
SAFEGUARDS, WHO HAD TESTIFIED.  ON MAY 26, 1959, THE COMMISSION ISSUED
ITS "OPINION AND FINAL DECISION," DEALING WITH ALL QUESTIONS PRESENTED
IN EVEN GREATER DETAIL AND REAFFIRMING ITS INITIAL DECISION.  THE
COMMISSION EMPHASIZED THAT "PUBLIC SAFETY IS THE FIRST, LAST, AND A
PERMANENT CONSIDERATION IN ANY DECISION ON THE ISSUANCE OF A
CONSTRUCTION PERMIT OR A LICENSE TO OPERATE A NUCLEAR FACILITY."  EVEN
AFTER OPERATION OF THE REACTOR IS LICENSED - IF IT EVER IS - THE
COMMISSION, IT SAID, WILL RETAIN JURISDICTION OVER PRDC'S ACTIVITIES TO
ENSURE THAT THE HIGHEST SAFETY STANDARDS ARE MAINTAINED.  THE OPINION
WENT ON TO EXAMINE THE SUITABILITY OF THE PROPOSED SITE, NOTED THAT IT
WAS NEAR A GREAT POPULATION CENTER, AND NEVERTHELESS CONCLUDED THAT AT
THE PRESENT STAGE THERE WAS REASONABLE ASSURANCE THAT THE GENERAL TYPE
OF REACTOR PROPOSED BY PRDC WOULD BE SAFE ENOUGH AT THAT LOCATION.  THE
COMMISSION POINTED OUT, HOWEVER, THAT ITS ACTION IN ALLOWING PRDC TO
PROCEED WITH CONSTRUCTION WAS BY ITS NATURE TENTATIVE AND PRELIMINARY,
AND THAT IT WAS BY NO MEANS COMMITTED TO THE ISSUANCE OF AN OPERATING
LICENSE.  "PRDC HAS BEEN ON NOTICE SINCE BEFORE THE FIRST SHOVEL OF
DIRT WAS MOVED," IT SAID, "THAT ITS CONSTRUCTION PERMIT IS PROVISIONAL
UPON FURTHER DEMONSTRATION OF MANY TECHNOLOGICAL AND FINANCIAL FACTS,
INCLUDING THE COMPLETE SAFETY OF THE REACTOR."  A MORE SEVERE SAFETY
TEST WOULD HAVE TO BE PASSED WHEN THE REACTOR WAS COMPLETED, THE
OPINION SAID, SINCE "THE DEGREE OF 'REASONABLE ASSURANCE'  ...  THAT
SATISFIES US ...  FOR PURPOSES OF THE PROVISIONAL CONSTRUCTION PERMIT
WOULD NOT BE THE SAME AS WE WOULD REQUIRE IN CONSIDERING THE ISSUANCE
OF THE OPERATING LICENSE."  THE COMMISSION THEN MADE NEW FINDINGS OF
FACT, INCLUDING THE FOLLOWING COUNTERPART OF ITS INITIAL FINDING 22: 

"22.  THE COMMISSION FINDS REASONABLE ASSURANCE IN THE RECORD, FOR
THE PURPOSES OF THIS PROVISIONAL CONSTRUCTION PERMIT, THAT A
UTILIZATION FACILITY OF THE GENERAL TYPE PROPOSED IN THE PRDC
APPLICATION AND AMENDMENTS THERETO CAN BE CONSTRUCTED AND OPERATED AT
THE LOCATION WITHOUT UNDUE RISK TO THE HEALTH AND SAFETY OF THE
PUBLIC." 

ALL THREE OF THE COMMISSIONERS WHO TOOK PART IN THE CASE JOINED IN
THIS FINAL DECISION, AND THE COMMISSION ENTERED ITS FINAL ORDER
CONTINUING IN EFFECT THE PRDC PROVISIONAL CONSTRUCTION PERMIT, BUT
AGAIN SUBJECT TO THE CONDITION THAT A MORE EXTENSIVE SAFETY
INVESTIGATION AND A DEFINITIVE SAFETY FINDING, WOULD HAVE TO BE MADE
BEFORE OPERATION WAS PERMITTED. 

THE INTERVENING UNIONS, RESPONDENTS IN THIS COURT, THEN PETITIONED
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT TO REVIEW AND
SET ASIDE THIS ORDER OF THE COMMISSION.  ONLY THE FINAL ORDER
CONTINUING THE PERMIT IN EFFECT WAS DRAWN IN QUESTION.  NO COMPLAINT
WAS MADE OF THE ORIGINAL EX PARTE GRANT OF THE PERMIT IN 1956.  PRDC
INTERVENED IN THE COURT OF APPEALS IN SUPPORT OF THE AEC.  ON JUNE 10,
1960, BY A DIVIDED VOTE, A THREE-JUDGE PANEL OF THE COURT OF APPEALS
SET ASIDE THE AEC'S ORDER AND REMANDED THE CASE TO THE COMMISSION.  A
PETITION FOR REHEARING EN BANC WAS DENIED, TWO JUDGES DISSENTING, AND
WE BROUGHT THE CASE HERE. 

WE TURN NOW TO AN EXAMINATION OF THE STATUTES AND REGULATIONS
PURSUANT TO WHICH THE COMMISSION PURPORTED TO CONTINUE IN EFFECT PRDC'S
CONSTRUCTION PERMIT.  THE BASIC PROVISION IS SEC. 104B OF THE ATOMIC
ENERGY ACT OF 1954, 42 U.S.C. SEC. 2134(B), WHICH AUTHORIZES THE AEC TO
"ISSUE LICENSES TO PERSONS APPLYING THEREFOR FOR UTILIZATION AND
PRODUCTION FACILITIES INVOLVED IN THE CONDUCT OF RESEARCH AND
DEVELOPMENT ACTIVITIES  ...  .  IN ISSUING LICENSES UNDER THIS
SUBSECTION, THE COMMISSION SHALL IMPOSE THE MINIMUM AMOUNT OF SUCH
REGULATIONS AND TERMS OF LICENSE AS WILL PERMIT THE COMMISSION TO
FULFILL ITS OBLIGATIONS UNDER THIS CHAPTER TO PROMOTE THE COMMON
DEFENSE AND SECURITY AND TO  PROTECT THE HEALTH AND SAFETY OF THE
PUBLIC  ...  ."  TWO THINGS ABOUT THIS SECTION SHOULD BE EMPHASIZED. 
FIRST, THERE IS NO DOUBT THAT THE TERM "LICENSES" AS USED THEREIN
INCLUDES THE PROVISIONAL CONSTRUCTION PERMIT WHICH PRDC HAS RECEIVED. 
THE LAST SENTENCE OF SEC. 185, 42 U.S.C. SEC. 2235, EXPRESSLY SO
PROVIDES, AS WE SHALL SOON SEE.  AND SECOND, THERE IS ALSO NO DOUBT
THAT CONSTRUCTION PERMITS, LIKE ALL OTHER LICENSES, CAN BE ISSUED ONLY
CONSISTENTLY WITH THE HEALTH AND SAFETY OF THE PUBLIC.  BUT THE
RESPONSIBILITY FOR SAFEGUARDING THAT HEALTH AND SAFETY BELONGS UNDER
THE STATUTE TO THE COMMISSION.  AND SEC. 104B, ESPECIALLY WHEN READ IN
CONNECTION WITH THE GENERAL RULE-MAKING POWER CONFERRED BY SEC.
161I(3), 42 U.S.C. SEC. 2201(I)(3), CLEARLY CONTEMPLATES THAT THE
COMMISSION SHALL BY REGULATION SET FORTH WHAT THE PUBLIC SAFETY
REQUIRES AS A PREREQUISITE TO THE ISSUANCE OF ANY LICENSE OR PERMIT
UNDER THE ACT.    THE ISSUANCE OF CONSTRUCTION PERMITS IS SUBJECT TO
SEC. 185, 42 U.S.C. SEC. 2235.  THAT SECTION PROVIDES THAT: 

"ALL APPLICANTS FOR LICENSES TO CONSTRUCT OR MODIFY PRODUCTION OR
UTILIZATION FACILITIES SHALL, IF THE APPLICATION IS OTHERWISE
ACCEPTABLE TO THE COMMISSION, BE INITIALLY GRANTED A CONSTRUCTION
PERMIT.  THE CONSTRUCTION PERMIT SHALL STATE THE EARLIEST AND LATEST
DATES FOR THE COMPLETION OF THE CONSTRUCTION OR MODIFICATION.  UNLESS
THE CONSTRUCTION OR MODIFICATION OF THE FACILITY IS COMPLETED BY THE
COMPLETION DATE, THE CONSTRUCTION PERMIT SHALL EXPIRE, AND ALL RIGHTS
THEREUNDER BE FORFEITED, UNLESS UPON GOOD CAUSE SHOWN, THE COMMISSION
EXTENDS THE COMPLETION DATE.  UPON THE COMPLETION OF THE CONSTRUCTION
OR MODIFICATION OF THE FACILITY, UPON THE FILING OF ANY ADDITIONAL
INFORMATION NEEDED TO BRING THE ORIGINAL APPLICATION UP TO DATE, AND
UPON FINDING THAT THE FACILITY AUTHORIZED HAS BEEN CONSTRUCTED AND WILL
OPERATE IN CONFORMITY WITH THE APPLICATION AS AMENDED AND IN CONFORMITY
WITH THE PROVISIONS OF THIS CHAPTER AND OF THE RULES AND REGULATIONS OF
THE COMMISSION, AND IN THE ABSENCE OF ANY GOOD CAUSE BEING SHOWN TO THE
COMMISSION WHY THE GRANTING OF A LICENSE WOULD NOT BE IN ACCORDANCE
WITH THE PROVISIONS OF THIS CHAPTER, THE COMMISSION SHALL THEREUPON
ISSUE A LICENSE TO THE APPLICANT.  FOR ALL OTHER PURPOSES OF THIS
CHAPTER, A CONSTRUCTION PERMIT IS DEEMED TO BE A 'LICENSE.'" 

IT IS CLEAR FROM THE FACE OF THIS STATUTE - AND ALL PARTIES AGREE -
THAT CONGRESS CONTEMPLATED A STEP-BY-STEP PROCEDURE.  FIRST AN
APPLICANT WOULD HAVE TO GET A CONSTRUCTION PERMIT, THEN HE WOULD HAVE
TO CONSTRUCT HIS FACILITY, AND THEN HE WOULD HAVE TO ASK THE COMMISSION
TO GRANT HIM A LICENSE TO OPERATE THE FACILITY.  THIS PROCEDURE IS
DESCRIBED IN ITS GENERAL OUTLINES IN MARKS AND TROWBRIDGE, FRAMEWORK
FOR ATOMIC INDUSTRY, 76-77 (1955).  SEE ALSO GREEN, THE LAW OF REACTOR
SAFETY, 12 VAND.  L. REV. 112, 121-127 (1958).  THE SECOND STEP OF THE
PROCEDURE, THE APPLICATION FOR AND GRANTING OF AN OPERATING LICENSE, IS
GOVERNED BY SEC. 182A, 42 U.S.C.  SEC. 2232(A).  THAT PROVISION READS,
IN PERTINENT PART: 

"IN CONNECTION WITH APPLICATIONS FOR LICENSES TO OPERATE PRODUCTION
OR UTILIZATION FACILITIES, THE APPLICANT SHALL STATE SUCH TECHNICAL
SPECIFICATIONS  ...  AND SUCH OTHER INFORMATION AS THE COMMISSION MAY,
BY RULE OR REGULATION, DEEM NECESSARY IN ORDER TO ENABLE IT TO FIND
THAT THE UTILIZATION OR PRODUCTION OF SPECIAL NUCLEAR MATERIAL WILL BE
IN ACCORD WITH THE COMMON DEFENSE AND SECURITY AND WILL PROVIDE
ADEQUATE PROTECTION TO THE HEALTH AND SAFETY OF THE PUBLIC." 

IT IS CLEAR FROM THIS PROVISION THAT BEFORE LICENSING THE OPERATION
OF PRDC'S REACTOR, THE AEC WILL HAVE TO MAKE A POSITIVE FINDING THAT
OPERATION OF THE FACILITY WILL "PROVIDE ADEQUATE PROTECTION TO THE
HEALTH AND SAFETY OF THE PUBLIC."  WHAT IS NOT CLEAR, AND WHAT IS AT
THE CENTER OF THE CONTROVERSY IN THIS CASE, IS WHETHER THE COMMISSION
MUST ALSO HAVE MADE SUCH A FINDING WHEN IT ISSUED PRDC'S CONSTRUCTION
PERMIT.  THERE IS NOTHING ON THE FACE OF EITHER SEC. 182 OR SEC. 185
WHICH TELLS US WHAT SAFETY FINDINGS MUST BE MADE BEFORE THIS
PRELIMINARY STEP IS TAKEN.  WE KNOW, HOWEVER, FROM SEC. 104B THAT SOME
SUCH FINDING MUST BE MADE.  FOR ENLIGHTENMENT ON THE NATURE OF THIS
FINDING, BOTH PARTIES URGE US TO EXAMINE THE COMMISSION'S REGULATIONS,
AND ACCORDINGLY WE PROCEED TO DO SO. 

THE CRUCIAL REGULATION FOR OUR PURPOSES IS THE COMMISSION'S
REGULATION 50.35, 10 CFR SEC. 50.35: 

"SEC. 50.35.  EXTENDED TIME FOR PROVIDING TECHNICAL INFORMATION. 
WHERE, BECAUSE OF THE NATURE OF A PROPOSED PROJECT, AN APPLICANT IS NOT
IN A POSITION TO SUPPLY INITIALLY ALL OF THE TECHNICAL INFORMATION
OTHERWISE REQUIRED TO COMPLETE THE APPLICATION, HE SHALL INDICATE THE
REASON, THE ITEMS OR KINDS OF INFORMATION OMITTED, AND THE APPROXIMATE
TIMES WHEN SUCH DATA WILL BE PRODUCED.  IF THE COMMISSION IS SATISFIED
THAT IT HAS INFORMATION SUFFICIENT TO PROVIDE REASONABLE ASSURANCE THAT
A FACILITY OF THE GENERAL TYPE PROPOSED CAN BE CONSTRUCTED AND OPERATED
AT THE PROPOSED LOCATION WITHOUT UNDUE RISK TO THE HEALTH AND SAFETY OF
THE PUBLIC AND THAT THE OMITTED INFORMATION WILL BE SUPPLIED, IT MAY
PROCESS THE APPLICATION AND ISSUE A CONSTRUCTION PERMIT ON A
PROVISIONAL BASIS WITHOUT THE OMITTED INFORMATION SUBJECT TO ITS LATER
PRODUCTION AND AN EVALUATION BY THE COMMISSION THAT THE FINAL DESIGN
PROVIDES REASONABLE ASSURANCE THAT THE HEALTH AND SAFETY OF THE PUBLIC
WILL NOT BE ENDANGERED." 

THIS REGULATION, OBVIOUSLY, ELABORATES UPON AND DESCRIBES IN FULLER
DETAIL THE STEP-BY-STEP LICENSING PROCEDURE CONTEMPLATED BY SECS. 182
AND 185.  IT STATES, PURSUANT TO THE AUTHORITY CONFERRED BY SECS. 104B
AND 161I(3), WHAT SAFETY FINDINGS SHALL BE REQUIRED AT EACH STAGE OF
THE PROCEEDING.  THERE IS GENERAL AGREEMENT THAT THE SECOND SAFETY
FINDING REFERRED TO, "THAT THE FINAL DESIGN PROVIDES REASONABLE
ASSURANCE THAT THE HEALTH AND SAFETY OF THE PUBLIC WILL NOT BE
ENDANGERED," COMPORTS WITH THE REQUIREMENTS OF SEC. 182 CONCERNING THE
ISSUANCE OF A LICENSE TO OPERATE.  THERE IS ALSO AGREEMENT THAT THE
REGULATION'S FIRST REQUIRED SAFETY FINDING, "THAT THE AEC HAS
INFORMATION SUFFICIENT TO PROVIDE REASONABLE ASSURANCE THAT A FACILITY
OF THE GENERAL TYPE PROPOSED CAN BE CONSTRUCTED AND OPERATED AT THE
PROPOSED LOCATION WITHOUT UNDUE RISK TO THE HEALTH AND SAFETY OF THE
PUBLIC," IS A VALID EXERCISE OF THE RULE-MAKING POWER CONFERRED UPON
THE AEC BY STATUTE, AND REQUIRES THAT SOME FINDING AS TO SAFETY OF
OPERATION BE MADE EVEN BEFORE A PROVISIONAL CONSTRUCTION PERMIT IS
GRANTED.  THE QUESTION IS WHETHER THAT FIRST FINDING MUST BE BACKED UP
WITH AS MUCH CONVICTION AS TO THE SAFETY OF THE FINAL DESIGN OF THE
SPECIFIC REACTOR IN OPERATION AS THE SECOND, FINAL FINDING MUST BE. 

WE THINK THE GREAT WEIGHT OF THE ARGUMENT SUPPORTS THE POSITION TAKEN
BY PRDC AND BY THE COMMISSION, THAT REG. 50.35 PERMITS THE COMMISSION
TO DEFER A DEFINITIVE SAFETY FINDING UNTIL OPERATION IS ACTUALLY
LICENSED.  THE WORDS OF THE REGULATION THEMSELVES CERTAINLY LEAN
STRONGLY IN THAT DIRECTION.  THE FIRST FINDING IS TO BE MADE, BY
DEFINITION, ON THE BASIS OF INCOMPLETE INFORMATION, AND CONCERNS ONLY
THE "GENERAL TYPE" OF REACTOR PROPOSED.  THE SECOND FINDING IS PHRASED
UNEQUIVOCALLY IN TERMS OF "REASONABLE ASSURANCE," WHILE THE FIRST
SPEAKS MORE TENTATIVELY OF "INFORMATION SUFFICIENT TO  PROVIDE
REASONABLE ASSURANCE."  THE COMMISSION, FURTHERMORE, HAD GOOD REASON TO
MAKE THIS DISTINCTION.  FOR NUCLEAR REACTORS ARE FAST-DEVELOPING AND
FAST-CHANGING.  WHAT IS UP TO DATE NOW MAY NOT, PROBABLY WILL NOT, BE
AS ACCEPTABLE TOMORROW.  PROBLEMS WHICH SEEM INSUPERABLE NOW MAY BE
SOLVED TOMORROW, PERHAPS IN THE VERY PROCESS OF CONSTRUCTION ITSELF. 
WE SEE NO REASON WHY WE SHOULD NOT ACCORD TO THE COMMISSION'S
INTERPRETATION OF ITS OWN REGULATION AND GOVERNING STATUTE THAT RESPECT
WHICH IS CUSTOMARILY GIVEN TO A PRACTICAL ADMINISTRATIVE CONSTRUCTION
OF A DISPUTED PROVISION.  PARTICULARLY IS THIS RESPECT DUE WHEN THE
ADMINISTRATIVE PRACTICE AT STAKE "INVOLVES A CONTEMPORANEOUS
CONSTRUCTION OF A STATUTE BY THE MEN CHARGED WITH THE RESPONSIBILITY OF
SETTING ITS MACHINERY IN MOTION, OF MAKING THE PARTS WORK EFFICIENTLY
AND SMOOTHLY WHILE THEY ARE YET UNTRIED AND NEW."  NORWEGIAN NITROGEN
PRODUCTS CO. V. UNITED STATES, 288 U.S. 294, 315 (1933).  AND FINALLY,
AND PERHAPS DEMANDING PARTICULAR WEIGHT, THIS CONSTRUCTION HAS TIME AND
AGAIN BEEN BROUGHT TO THE ATTENTION OF THE JOINT COMMITTEE OF CONGRESS
ON ATOMIC ENERGY, WHICH UNDER SEC. 202 OF THE ACT, 42 U.S.C. SEC. 2252,
HAS A SPECIAL DUTY DURING EACH SESSION OF CONGRESS TO "CONDUCT HEARINGS
IN EITHER OPEN OR EXECUTIVE SESSION FOR THE PURPOSE OF RECEIVING
INFORMATION CONCERNING THE DEVELOPMENT, GROWTH, AND STATE OF THE ATOMIC
ENERGY INDUSTRY," AND TO OVERSEE THE OPERATIONS OF THE AEC.  SEE, E.G.,
HEARINGS ON DEVELOPMENT, GROWTH, AND STATE OF THE ATOMIC ENERGY
INDUSTRY, 84TH CONG., 2D SESS., P. 106 (1956); HEARINGS ON DEVELOPMENT,
ETC., 85TH CONG., 2D SESS., PP. 119-121 (1958); HEARINGS ON
DEVELOPMENT, ETC., 86TH CONG., 2D SESS., PP. 103-109, 677-678 (1960);
HEARINGS ON DEVELOPMENT, ETC., 87TH CONG., 1ST SESS., PP. 29-32 (1961);
HEARINGS ON GOVERNMENTAL INDEMNITY FOR PRIVATE LICENSEES AND AEC
CONTRACTORS AGAINST REACTOR HAZARDS, 84TH CONG., 2D SESS., PP. 62-65
(1956); A STUDY OF AEC PROCEDURES AND ORGANIZATION IN THE LICENSING OF
REACTOR FACILITIES, 85TH CONG., 1ST SESS., PP. 11-14, 100-108 (JOINT
COMM. PRINT 1957).  NO CHANGE IN THIS PROCEDURE HAS EVER BEEN SUGGESTED
BY THE COMMITTEE, ALTHOUGH IT HAS ON OCCASION BEEN CRITICAL OF OTHER
ASPECTS OF THE PRDC PROCEEDINGS NOT BEFORE US.  IT MAY OFTEN BE SHAKY
BUSINESS TO ATTRIBUTE SIGNIFICANCE TO THE INACTION OF CONGRESS, BUT
UNDER THESE CIRCUMSTANCES, AND CONSIDERING ESPECIALLY THE PECULIAR
RESPONSIBILITY AND PLACE OF THE JOINT COMMITTEE ON ATOMIC ENERGY IN THE
STATUTORY SCHEME, WE THINK IT FAIR TO READ THIS HISTORY AS A DE FACTO
ACQUIESCENCE IN AND RATIFICATION OF THE COMMISSION'S LICENSING
PROCEDURE BY CONGRESS.  CF., E.G., IVANHOE IRRIG.  DIST.  V. MCCRACKEN,
357 U.S. 275, 292-294 (1958); BROOKS V. DEWAR, 313 U.S. 354, 360-361
(1941).  THIS SAME PROCEDURE HAS BEEN USED IN EACH OF THE NINE
INSTANCES IN WHICH THE COMMISSION HAS GRANTED A PROVISIONAL
CONSTRUCTION PERMIT FOR A DEVELOPMENTAL NUCLEAR POWER REACTOR, E.G.,
YANKEE ATOMIC ELEC.  CO., CPPR-5 (AEC 1957), AND WE HOLD THAT IT WAS
PROPERLY USED IN THIS CASE. 

IT IS PLAIN THAT THE STATUTE AND REGULATIONS, AS SO CONSTRUED AND
APPLIED, WERE COMPLIED WITH FULLY.  THE COMMISSION DID NOT, AS
RESPONDENTS' ARGUMENT SEEMS AT TIMES TO SUGGEST, FIND MERELY THAT THE
CONSTRUCTION OF THE REACTOR WOULD PRESENT NO SAFETY PROBLEM.  THE
COMMISSION'S OPINION AND FINDINGS CLEARLY WERE DEEPLY CONCERNED ABOUT
THE PROSPECTIVE SAFETY OF OPERATION OF THE PROPOSED REACTOR.  ADMITTING
THAT ON THE BASIS OF THE FACTS BEFORE IT IT WAS UNABLE TO MAKE A
DEFINITIVE FINDING OF SAFETY, THE COMMISSION NEVERTHELESS FOUND - AND
RESPONDENTS DO NOT DENY THAT THE FINDING WAS SUPPORTED BY SUBSTANTIAL
EVIDENCE - THAT IT HAD INFORMATION SUFFICIENT TO PROVIDE REASONABLE
ASSURANCE THAT THE GENERAL TYPE OF REACTOR PROPOSED COULD BE OPERATED
WITHOUT UNDUE RISK TO THE HEALTH AND SAFETY OF THE PUBLIC.  ITS FINDING
22, WHICH WE HAVE QUOTED, WAS IN THE VERY WORDS OF REG. 50.35, EXCEPT
FOR THE INSERTION OF THE PHRASE, "FOR THE PURPOSES OF THIS PROVISIONAL
CONSTRUCTION PERMIT."  THIS PHRASE WAS MERELY DECLARATORY OF THE NATURE
OF THE PROCEEDING BEFORE THE COMMISSION, AND IN NO WAY DENIGRATED THE
FINDING AS TO SAFETY OF OPERATION. 

RESPONDENTS CONTEND NEVERTHELESS THAT THEIR CONSTRUCTION OF THE
STATUTE IS COMPELLED BY THE LEGISLATIVE HISTORY.  SINCE THE COURT OF
APPEALS RELIED HEAVILY ON THIS HISTORY, WE HAVE STUDIED IT CAREFULLY. 
TWO INCIDENTS ARE CITED IN PARTICULAR.  FIRST, THE JOINT COMMITTEE
STATED IN ITS REPORT ON THE BILL WHICH BECAME THE ATOMIC ENERGY ACT OF
1954, AND WHICH WHEN REPORTED CONTAINED SECS. 182 AND 185 IN
SUBSTANTIALLY THEIR PRESENT SHAPE, THAT "SECTION 185  ...  REQUIRES THE
ISSUANCE OF A LICENSE IF THE CONSTRUCTION IS CARRIED OUT IN ACCORDANCE
WITH THE TERMS OF THE CONSTRUCTION PERMIT."   S. REP. NO. 1699, 83D
CONG., 2D SESS., P. 28 (1954); H.R. REP. NO. 2181, 83D CONG., 2D SESS.,
P. 28 (1954).  THE BEST WE CAN SAY ABOUT THIS STATEMENT, WITH ALL
DEFERENCE, IS THAT IT MUST HAVE BEEN INADVERTENT.  WITNESSES WHO
APPEARED BEFORE THE JOINT COMMITTEE AT THE HEARINGS ON THE BILL HAD
MADE THE VERY COMPLAINT THAT UNDER THE WORDS OF THE BILL AS PROPOSED A
COMPANY MIGHT INVEST LARGE SUMS IN CONSTRUCTION OF A REACTOR, AND THEN
BE DENIED THE RIGHT TO OPERATE IT.  THIS SITUATION, THEY CLAIMED, WAS
UNFAIR, AND WOULD SUBSTANTIALLY DISCOURAGE THE PRIVATE INVESTMENT IN
THE FIELD OF ATOMIC POWER WHICH IT WAS ONE OF THE BILL'S MAJOR PURPOSES
TO STIMULATE.  SEE HEARINGS BEFORE THE JOINT COMMITTEE ON ATOMIC ENERGY
ON THE BILL TO AMEND THE ATOMIC ENERGY ACT OF 1946, 83D CONG., 2D
SESS., PT. I., PP. 113, 119 (STATEMENT OF PAUL W. MCQUILLEN,
REPRESENTING THE DOW CHEMICAL-DETROIT EDISON AND ASSOCIATES ATOMIC
POWER DEVELOPMENT PROJECT, PREDECESSORS OF PRDC); PP. 226-227
(STATEMENT OF E.H. DIXON, CHAIRMAN OF THE COMMITTEE ON ATOMIC POWER OF
THE EDISON ELECTRIC INSTITUTE AND PRESIDENT OF MIDDLE-SOUTH UTILITIES,
INC.); P. 417 (STATEMENT OF THE SPECIAL COMMITTEE ON ATOMIC ENERGY OF
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK).  IN SPITE OF THESE
PLEAS, HOWEVER, THE BILL WAS UNCHANGED.  INDUSTRY SPOKESMEN RENEWED THE
ARGUMENT THE NEXT YEAR WHEN THEY SOUGHT UNSUCCESSFULLY TO HAVE SEC. 185
AMENDED.  HEARINGS ON DEVELOPMENT, ETC., 84TH CONG., 1ST SESS., PP.
258, 261 (1955).  EVEN A GLANCE AT SEC. 185 SUFFICES TO SHOW THAT
ISSUANCE OF A CONSTRUCTION PERMIT DOES NOT MAKE AUTOMATIC THE LATER
ISSUANCE OF A LICENSE TO OPERATE.  FOR THAT SECTION SETS FORTH THREE
CONDITIONS, IN ADDITION TO THE COMPLETION OF THE CONSTRUCTION, WHICH
MUST BE MET BEFORE AN OPERATING LICENSE IS GRANTED:  (1) FILING OF ANY
ADDITIONAL INFORMATION NECESSARY TO BRING THE APPLICATION UP TO DATE -
INFORMATION WHICH WILL NECESSARILY IN THIS CASE INCLUDE DETAILED SAFETY
DATA CONCERNING THE FINAL DESIGN OF PETITIONER'S REACTOR; (2) A FINDING
THAT THE REACTOR WILL OPERATE IN ACCORDANCE WITH THE ACT AND
REGULATIONS - I.E., THAT THE SAFETY AND HEALTH OF THE PUBLIC WILL BE
ADEQUATELY PROTECTED - AND WITH THE CONSTRUCTION PERMIT ITSELF, WHICH
IS EXPRESSLY CONDITIONED UPON A FULL INVESTIGATION AND FINDING OF
SAFETY BEFORE OPERATION IS PERMITTED; AND (3) THE ABSENCE OF ANY GOOD
CAUSE WHY THE GRANTING OF A LICENSE TO OPERATE WOULD NOT BE IN
ACCORDANCE WITH THE ACT - E.G., A SHOWING BY RESPONDENT UNIONS, WHO
WILL HAVE FULL RIGHTS TO APPEAR AND CONTEST THE ISSUANCE OF AN
OPERATING LICENSE, THAT THE REACTOR MAY NOT BE REASONABLY SAFE. 
RESPONDENTS RELY MORE HEAVILY ON ANOTHER EVEN DURING THE DEBATES ON
THIS BILL ON THE FLOOR OF THE SENATE.  SENATOR HUMPHREY, AN OPPONENT OF
THE BILL, EXPRESSED A DESIRE THAT IT BE MADE CLEAR THAT "THE
CONSTRUCTION PERMIT IS EQUIVALENT TO A LICENSE," AND THAT "THE REVISED
CONSTRUCTION PERMITS."  100 CONG. REC.  12014 (JULY 26, 1954). 
SENATOR HICKENLOOPER, FLOOR MANAGER OF THE BILL AND THE RANKING SENATE
MEMBER OF THE JOINT COMMITTEE ON ATOMIC ENERGY, INDICATED THAT HE
AGREED WITH THIS CONSTRUCTION OF SECS. 182 AND 185.  SENATOR HUMPHREY
WANTED THESE MATTERS MADE CLEAR BECAUSE HE FEARED THAT OTHERWISE A
CONSTRUCTION PERMIT COULD BE EASILY OBTAINED AND SUBSTANTIAL INVESTMENT
MADE IN CONSTRUCTION, AND THEN THE COMMISSION WOULD FEEL OBLIGED,
PERHAPS UNDER PRESSURE, TO ISSUE AN OPERATING LICENSE IN ORDER THAT
THIS INVESTMENT SHOULD NOT GO TO WASTE.  THE LANGUAGE USED IN THE
EXCHANGE BETWEEN SENATORS HUMPHREY AND HICKENLOOPER IS SUSCEPTIBLE, IF
READ BROADLY AND OUT OF CONTEXT, OF THE CONSTRUCTION WHICH RESPONDENTS
ATTRIBUTE TO IT, NAMELY, THAT NO SEC. 185 CONSTRUCTION PERMIT MAY BE
ISSUED UNLESS THE COMMISSION HAS MADE THE SAME SAFETY-OF-OPERATION
FINDING WHICH IT MUST MAKE UNDER SEC. 182A BEFORE ALLOWING ACTUAL
OPERATION.  BUT THE CONTEXT OF THE EXCHANGE MAKES IT CLEAR THAT NO SUCH
IMPLICATION WAS INTENDED BY THE PARTICIPANTS.  SENATOR HUMPHREY'S
STATEMENTS WERE MADE DURING THE CONSIDERATION OF AN AMENDMENT WHICH HE
HAD HIMSELF PROPOSED ON JULY 16.  THIS AMENDMENT WOULD HAVE ADDED THE
FOLLOWING CLAUSE TO THE END OF SEC. 185: 

"AND NO CONSTRUCTION PERMIT SHALL BE ISSUED BY THE COMMISSION UNTIL
AFTER THE COMPLETION OF THE PROCEDURES ESTABLISHED BY SECTION 182 FOR
THE CONSIDERATION OF APPLICATIONS FOR LICENSES UNDER THIS ACT." 

UPON BEING ASSURED BY SENATOR HICKENLOOPER THAT AN EARLIER AMENDMENT
WHICH SENATOR HICKENLOOPER HIMSELF HAD OFFERED TO SEC. 189 TOOK CARE OF
THE PROBLEM, SENATOR HUMPHREY WITHDREW HIS PROPOSAL.  THIS AMENDMENT TO
SEC. 189, WHICH WAS ADOPTED, WAS CONCERNED SOLELY WITH HEARINGS AND
JUDICIAL REVIEW.  PLAINLY SENATOR HUMPHREY'S CONCERN WAS NOT WITH THE
SUBSTANTIVE SAFETY FINDINGS NECESSARY TO THE ISSUANCE OF A CONSTRUCTION
PERMIT, BUT RATHER WITH THE PROCEDURAL SAFEGUARDS WITH WHICH THAT
ISSUANCE SHOULD, IN HIS OPINION, BE SURROUNDED.  THE REFERENCE TO THE
APPLICATION OF SEC. 182 TO CONSTRUCTION PERMITS WAS MADE NOT WITH SEC.
182A IN MIND - THAT SUBSECTION SETS OUT THE SUBSTANTIVE SAFETY STANDARD
FOR THE ISSUANCE OF AN OPERATING LICENSE - BUT RATHER WITH A VIEW TO
THE APPLICATION OF SEC. 182B, ABOUT WHICH SENATOR HUMPHREY PARTICULARLY
ASKED SENATOR HICKENLOOPER DURING THE EXCHANGE ON THE FLOOR REFERRED
TO, AND WHICH MERELY PROVIDES THAT NOTICE OF A LICENSE APPLICATION MUST
BE PUBLISHED AND GIVEN TO ANY APPROPRIATE REGULATORY AGENCIES, A
PROCEDURAL REQUIREMENT WHICH WAS FULLY SATISFIED IN THIS CASE.  THIS
INTERPRETATION OF THE MEANING OF SENATOR HUMPHREY'S REMARKS IS BORNE
OUT BY A STATEMENT OF REPRESENTATIVE HOLIFIELD, WHO, TOGETHER WITH
REPRESENTATIVE PRICE, HAD DISSENTED FROM THE FAVORABLE REPORT OF THE
JOINT COMMITTEE, PRECISELY BECAUSE, INTER ALIA, UNDER THE BILL AS
REPORTED A CONSTRUCTION PERMIT DID NOT HAVE TO BE PRECEDED BY THE SAME
PROCEDURES AS AN OPERATING LICENSE.  SEE S. REP. NO. 1699, 83D CONG.,
2D SESS., P. 123 (1954); H.R. REP. NO. 2181, 83D CONG., 2D SESS., P.
123 (1954).  REPRESENTATIVE PRICE WANTED THE SAME AMENDMENT ADDED TO
SEC. 185 WHICH SENATOR HUMPHREY PROPOSED, AND HE CHARACTERIZED THIS
AMENDMENT AS NECESSARY TO ENSURE "THAT THE SAME PROCEDURAL SAFEGUARDS
IN THE CASE OF LICENSES BE APPLIED TO CONSTRUCTION PERMITS."  100 CONG.
REC. 10959 (JULY 19, 1954).  WE THINK, THEREFORE, THAT SENATOR
HUMPHREY'S STATEMENT REFERRED ONLY TO PROCEDURAL PREREQUISITES OF
CONSTRUCTION PERMITS, AND HAD NOTHING TO DO WITH THE SUBSTANTIVE SAFETY
CONSIDERATIONS WHICH THIS CASE INVOLVES.  IF THERE WERE ANY DOUBT ABOUT
THIS MATTER, THE CONSISTENT ADMINISTRATIVE PRACTICE, MADE KNOWN TO
CONGRESS MANY TIMES AND NEVER DISTURBED BY IT, WOULD DICTATE THIS
CONCLUSION. 

THE COURT OF APPEALS PUT FORWARD AS AN ALTERNATIVE BASIS FOR ITS
DECISION THE HOLDING THAT UNDER THE LAW THE COMMISSION MAY NOT
AUTHORIZE THE CONSTRUCTION OF A REACTOR NEAR A LARGE POPULATION CENTER
WITHOUT "COMPELLING REASONS" FOR DOING SO, 108 U.S. APP. D.C., AT 103
104, 280 F.2D, AT 651-652, AND THAT NO SUCH REASONS HAD BEEN FOUND BY
THE AEC IN THIS CASE.  IT IS NOT CLEAR WHETHER RESPONDENTS HAVE
ABANDONED THAT CONTENTION IN THIS COURT, AND IT IS LIKEWISE UNCERTAIN
WHETHER THEY EVER PRESENTED IT TO THE COMMISSION, A STEP WHICH WOULD
ORDINARILY BE A PREREQUISITE TO ITS CONSIDERATION BY THE COURT OF
APPEALS.  IN ANY EVENT, THE POSITION IS WITHOUT MERIT.  THE STATUTE AND
REGULATIONS SAY NOTHING ABOUT "COMPELLING REASONS."  OF COURSE CONGRESS
(AND THE COMMISSION, TOO, FOR THAT MATTER) HAD THE PROBLEM OF SAFETY
UPPERMOST IN MIND, AND OF COURSE THAT PROBLEM IS MOST ACUTE WHEN A
REACTOR, POTENTIALLY DANGEROUS, IS LOCATED NEAR A LARGE CITY.  BUT THE
COMMISSION FOUND REASONABLE ASSURANCE, FOR PRESENT PURPOSES, THAT THE
REACTOR COULD BE SAFELY OPERATED AT THE PROPOSED LOCATION, AND THAT IS
ENOUGH TO SATISFY THE REQUIREMENTS OF LAW.  THE COMMISSION RECOGNIZED
THAT THE SITE AND ALL ITS PROPERTIES ARE AMONG THE MOST IMPORTANT
INGREDIENTS OF A FINDING OF SAFETY VEL NON.  IT CONSIDERED THE SITE
ALONG WITH ALL THE OTHER RELEVANT DATA.  THERE IS NO WARRANT IN THE
STATUTE FOR SETTING ASIDE THE COMMISSION'S CONCLUSION. 

WE HOLD, THEREFORE, THAT THE COURT OF APPEALS ERRED IN SETTING ASIDE
THE ORDER OF THE AEC CONTINUING PRDC'S PROVISIONAL CONSTRUCTION PERMIT
IN EFFECT.  WE DEEM IT APPROPRIATE TO ADD A FEW WORDS CONCERNING THE
FEARS OF NUCLEAR DISASTER WHICH RESPONDENTS SO URGENTLY PLACE BEFORE
US.  THE RESPONDENTS' ARGUMENT IS TANTAMOUNT TO AN INSISTENCE THAT THE
COMMISSION CANNOT BE COUNTED ON, WHEN THE TIME COMES TO MAKE A
DEFINITIVE SAFETY FINDING, WHOLLY TO EXCLUDE THE CONSIDERATION THAT
PRDC WILL HAVE MADE AN ENORMOUS INVESTMENT.  THE PETITIONERS CONCEDE
THAT THE COMMISSION IS ABSOLUTELY DENIED ANY AUTHORITY TO CONSIDER THIS
INVESTMENT WHEN ACTING UPON AN APPLICATION FOR A LICENSE FOR
OPERATION.  PRDC HAS BEEN ON NOTICE LONG SINCE THAT IT PROCEEDS WITH
CONSTRUCTION AT ITS OWN RISK, AND THAT ALL ITS FUNDS MAY GO FOR
NAUGHT.  WITH ITS EYES OPEN, PRDC HAS WILLINGLY ACCEPTED THAT RISK,
HOWEVER GREAT.  NO LICENSE TO OPERATE MAY BE ISSUED TO PRDC UNTIL A
FULL HAZARDS REPORT HAS BEEN FILED, UNTIL THE AEC'S ADVISORY COMMITTEE
ON REACTOR SAFEGUARDS MAKES A FULL INVESTIGATION AND PUBLIC REPORT ON
SAFETY TO THE COMMISSION, UNTIL THE COMMISSION ITSELF, AFTER NOTICE AND
HEARINGS AT WHICH RESPONDENTS, IF THEY DESIRE, MAY BE HEARD, HAS MADE
THE SAFETY-OF-OPERATION FINDING REQUIRED BY SEC. 182A AND REG. 50.35,
AND UNTIL THE OTHER REQUIREMENTS OF SEC. 185 HAVE BEEN MET.  IT MAY BE
THAT AN OPERATING LICENSE WILL NEVER BE ISSUED.  IF ONE IS, THAT WILL
NOT BE THE END OF THE MATTER.  THE RESPONDENTS MAY HAVE JUDICIAL
REVIEW.  MOREOVER, THE COMMISSION'S RESPONSIBILITY FOR SUPERVISION OF
PRDC CONTINUES.  FOR, UNDER REG. 50.57, 10 CFR SEC. 50.57, OPERATION AT
FULL POWER (100,000 ELECTRIC KILOWATTS) WILL NOT BE PERMITTED UNTIL
SEVERAL STEPS OF GRADUALLY INCREASING OPERATION HAVE BEEN SUCCESSFULLY
MASTERED, WITH A FULL PUBLIC HEARING AT EACH STEP, AND NO FURTHER
ADVANCE PERMITTED WITHOUT THE AEC'S BEING FULLY SATISFIED THAT A STEP
UP WILL MEET THE HIGH SAFETY STANDARDS IMPOSED BY LAW.  THIS IS THE
MULTI-STEP SCHEME WHICH CONGRESS AND THE COMMISSION HAVE DEVISED TO
PROTECT THE PUBLIC HEALTH AND SAFETY.  WE HOLD THAT THE ACTIONS OF THE
COMMISSION UP TO NOW HAVE BEEN WITHIN THE CONGRESSIONAL AUTHORIZATION. 
WE CANNOT ASSUME THAT THE COMMISSION WILL EXCEED ITS POWERS, OR THAT
THESE MANY SAFEGUARDS TO PROTECT THE PUBLIC INTEREST WILL NOT BE FULLY
EFFECTIVE. 

ACCORDINGLY, THE JUDGMENT IS REVERSED AND THE CAUSES ARE REMANDED TO
THE COURT OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE ONLY REQUIREMENT IN THE ACT FOR A FINDING THAT THE FACILITIES
INVOLVED HERE "WILL PROVIDE ADEQUATE PROTECTION TO THE HEALTH AND
SAFETY OF THE PUBLIC" IS FOUND IN SEC. 182 WHICH IS HEADED "LICENSE
APPLICATIONS."  (FN1)  BY THE TERMS OF SEC. 185 A CONSTRUCTION PERMIT
IS, APART FROM THE REQUIREMENTS OF SEC. 185, "DEEMED TO BE A
'LICENSE.'"  (FN2)  SECTION 185 GOVERNS APPLICATIONS FOR CONSTRUCTION
PERMITS.  IT HAS NO SEPARATE OR INDEPENDENT STANDARDS FOR SAFETY, NO
SPECIFIC REQUIREMENT FOR A FINDING ON "SAFETY."  IF THE FACILITY IS
FINISHED AND WILL OPERATE "IN CONFORMITY WITH" THE ACT, THE LICENSE
ISSUES "IN THE ABSENCE OF ANY GOOD CAUSE BEING SHOWN TO THE COMMISSION
WHY THE GRANTING OF A LICENSE WOULD NOT BE IN ACCORDANCE WITH THE
PROVISIONS OF" THE ACT.  AS THE COMMITTEE REPORT STATED, "SECTION 185
...  REQUIRES THE ISSUANCE OF A LICENSE IF THE CONSTRUCTION IS CARRIED
OUT IN ACCORDANCE WITH THE TERMS OF THE CONSTRUCTION PERMIT."  (FN3)
IN OTHER WORDS, THE FINDING ON "SAFETY," IF IT IS TO BE MADE (AS IT
ASSUREDLY MUST BE), MUST BE MADE AT THE TIME THE CONSTRUCTION PERMIT IS
ISSUED OR NOT AT ALL. 

WHILE IN THE PRESENT CASE THE COMMISSION "FINDS REASONABLE ASSURANCE
IN THE RECORD, FOR THE PURPOSES OF THIS PROVISIONAL CONSTRUCTION
PERMIT," THAT THE FACILITY CAN BE OPERATED "WITHOUT UNDUE RISK TO THE
HEALTH AND SAFETY OF THE PUBLIC," IT ALSO FINDS THAT "IT HAS NOT BEEN
POSITIVELY ESTABLISHED" THAT A FACILITY OF THIS CHARACTER "CAN BE
OPERATED WITHOUT A CREDIBLE POSSIBILITY OF RELEASING SIGNIFICANT
QUANTITIES OF FISSION PRODUCTS TO THE ENVIRONMENT."  THE COMMISSION
ADDED THAT THERE WAS "REASONABLE ASSURANCE" BEFORE THE DATE WHEN THE
FACILITY WENT INTO OPERATION THAT RESEARCH AND INVESTIGATION WOULD
DEFINITELY ESTABLISH "WHETHER OR NOT THE REACTOR PROPOSED BY APPLICANT
CAN BE SO OPERATED." 

PLAINLY THESE ARE NOT FINDINGS THAT THE "SAFETY" STANDARDS HAVE BEEN
MET.  THEY PRESUPPOSE - CONTRARY TO THE PREMISE OF THE ACT - THAT
"SAFETY" FINDINGS CAN BE MADE AFTER CONSTRUCTION IS FINISHED.  BUT WHEN
THAT POINT IS REACHED, WHEN MILLIONS HAVE BEEN INVESTED, THE MOMENTUM
IS ON THE SIDE OF THE APPLICANT, NOT ON THE SIDE OF THE PUBLIC.  THE
MOMENTUM IS NOT ONLY GENERATED BY THE DESIRE TO SALVAGE AN INVESTMENT. 
NO AGENCY WANTS TO BE THE ARCHITECT OF A "WHITE ELEPHANT."  CONGRESS
COULD DESIGN AN ACT THAT WOULD GIVE A COMPLETED STRUCTURE THAT
MOMENTUM.  BUT IT IS CLEAR TO ME IT DID NOT DO SO. 

WHEN THIS MEASURE WAS BEFORE THE SENATE, SENATOR HUMPHREY PROPOSED AN
AMENDMENT THAT READ, "NO CONSTRUCTION PERMITS SHALL BE ISSUED BY THE
COMMISSION UNTIL AFTER THE COMPLETION OF THE PROCEDURES ESTABLISHED BY
THIS ACT."  (FN4)  THAT AMENDMENT WOULD PLAINLY HAVE MADE THE PRESENT
FINDINGS INADEQUATE, FOR THEY LEAVE THE ISSUE OF "SAFETY" WHOLLY IN
CONJECTURE AND UNRESOLVED. 

SENATOR HUMPHREY EXPLAINED HIS AMENDMENT AS FOLLOWS:  (FN5) 

"THE PURPOSE OF THE AMENDMENT WHEN IT WAS PREPARED WAS TO MAKE SURE
THAT THE CONSTRUCTION OF A FACILITY WAS NOT PERMITTED PRIOR TO THE
AUTHORIZATION OF A LICENSE, BECAUSE HAD THAT BEEN DONE WHAT IT WOULD
HAVE AMOUNTED TO WOULD BE GETTING AN INVESTMENT OF A SUBSTANTIAL AMOUNT
OF CAPITAL, WHICH SURELY WOULD HAVE BEEN PREJUDICIAL IN TERMS OF THE
COMMISSION ISSUING THE LICENSE.  IN OTHER WORDS, IF THE COMMISSION HAD
GRANTED THE CONSTRUCTION PERMIT FOR SOME FORM OF NUCLEAR REACTOR, AND
THEN THE QUESTION OF A LICENSE WAS NOT FULLY RESOLVED, SURELY THERE
WOULD HAVE BEEN CONSIDERABLE PRESSURE, AND JUSTIFIABLY SO, FOR THE
COMMISSION TO HAVE AUTHORIZED THE LICENSE ONCE IT HAD AUTHORIZED THE
PERMIT FOR CONSTRUCTION. 

"THE CHAIRMAN OF THE COMMITTEE TELLS ME HE HAS MODIFIED CERTAIN
I WAS NOT AWARE.  THE CHAIRMAN INDICATES TO ME THAT UNDER THE TERMS OF
THE BILL, AS AMENDED, THE CONSTRUCTION PERMIT IS EQUIVALENT TO A
LICENSE.  IN OTHER WORDS, AS I UNDERSTAND, UNDER THE BILL A
CONSTRUCTION PERMIT CANNOT BE INTERPRETED IN ANY OTHER WAY THAN BEING
EQUAL TO OR A PART OF THE LICENSING PROCEDURE.  IS THAT CORRECT?" 

HIS QUESTION WAS ANSWERED BY SENATOR HICKENLOOPER, WHO WAS IN CHARGE
OF THE BILL:  (FN6) 

"A LICENSE AND A CONSTRUCTION PERMIT ARE EQUIVALENT.  THEY ARE THE
SAME THING, AND ONE CANNOT OPERATE UNTIL THE OTHER IS GRANTED. 

"THE SAME IS TRUE WITH REFERENCE TO HEARINGS.  THEREFORE, WE BELIEVE,
AND WE ASSURE THE SENATOR, THAT THE AMENDMENT IS NOT ESSENTIAL TO THE
PROBLEM WHICH HE IS ATTEMPTING TO REACH." 

SENATOR HUMPHREY THEN ASKED IF SEC. 182 APPLIED "DIRECTLY TO
CONSTRUCTION PERMITS."  (FN7) SENATOR HICKENLOOPER REPLIED "YES." 
(FN8)  SENATOR HUMPHREY ACCORDINGLY WITHDREW HIS AMENDMENT.  (FN9) 

THIS LEGISLATIVE HISTORY MAKES CLEAR THAT THE TIME WHEN THE ISSUE OF
"SAFETY" MUST BE RESOLVED IS BEFORE THE COMMISSION ISSUES A
CONSTRUCTION PERMIT.  THE CONSTRUCTION GIVEN THE ACT BY THE COMMISSION
(AND TODAY APPROVED) IS, WITH ALL DEFERENCE, A LIGHT-HEARTED APPROACH
TO THE MOST AWESOME, THE MOST DEADLY, THE MOST DANGEROUS PROCESS THAT
MAN HAS EVER CONCEIVED.  (FN10) 

FN1  SEE APPENDIX TO THIS OPINION, POST, P. 419. 

FN2  IBID. 

FN3  1 LEG.  HIST.  1024. 

FN4  3 LEG.  HIST.  3759. 

FN5  IBID. 

FN6  IBID. 

FN7  IBID. 

FN8  IBID. 

FN9  IBID. 

FN10  SEE BIOLOGICAL AND ENVIRONMENTAL EFFECTS OF NUCLEAR WAR,
SUMMARY-ANALYSIS OF HEARINGS, JUNE 22-26, 1959, JOINT COMMITTEE ON
ATOMIC ENERGY, 86TH CONG., 1ST SESS.; FALLOUT FROM NUCLEAR WEAPONS
TESTS, SUMMARY-ANALYSIS OF HEARINGS, MAY 5-8, 1959, JOINT COMMITTEE ON
ATOMIC ENERGY, 86TH CONG., 1ST SESS.  FOR AN ANALYSIS OF THE
ADMINISTRATIVE LAW TECHNIQUES USED BY THE COMMISSION IN THIS CASE, SEE
JALET, A STUDY IN ADMINISTRATIVE LAW, 47 GEORGETOWN L.J. 47 (1958). 
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. 


"LICENSE APPLICATIONS. 

"A. EACH APPLICATION FOR A LICENSE HEREUNDER SHALL BE IN WRITING AND
SHALL SPECIFICALLY STATE SUCH INFORMATION AS THE COMMISSION, BY RULE OR
REGULATION, MAY DETERMINE TO BE NECESSARY TO DECIDE SUCH OF THE
TECHNICAL AND FINANCIAL QUALIFICATIONS OF THE APPLICANT, THE CHARACTER
OF THE APPLICANT, THE CITIZENSHIP OF THE APPLICANT, OR ANY OTHER
QUALIFICATIONS OF THE APPLICANT AS THE COMMISSION MAY DEEM APPROPRIATE
FOR THE LICENSE.  IN CONNECTION WITH APPLICATIONS FOR LICENSES TO
OPERATE PRODUCTION OR UTILIZATION FACILITIES, THE APPLICANT SHALL STATE
SUCH TECHNICAL SPECIFICATIONS, INCLUDING INFORMATION OF THE AMOUNT,
KIND, AND SOURCE OF SPECIAL NUCLEAR MATERIAL REQUIRED, THE PLACE OF THE
USE, THE SPECIFIC CHARACTERISTICS OF THE FACILITY, AND SUCH OTHER
INFORMATION AS THE COMMISSION MAY, BY RULE OR REGULATION, DEEM
NECESSARY IN ORDER TO ENABLE IT TO FIND THAT THE UTILIZATION OR
PRODUCTION OF SPECIAL NUCLEAR MATERIAL WILL BE IN ACCORD WITH THE
COMMON DEFENSE AND SECURITY AND WILL PROVIDE ADEQUATE PROTECTION TO THE
HEALTH AND SAFETY OF THE PUBLIC.  SUCH TECHNICAL SPECIFICATIONS SHALL
BE A PART OF ANY LICENSE ISSUED." 


"CONSTRUCTION PERMITS.  - ALL APPLICANTS FOR LICENSES TO CONSTRUCT OR
MODIFY PRODUCTION OR UTILIZATION FACILITIES SHALL, IF THE APPLICATION
IS OTHERWISE ACCEPTABLE TO THE COMMISSION, BE INITIALLY GRANTED A
CONSTRUCTION PERMIT.  THE CONSTRUCTION PERMIT SHALL STATE THE EARLIEST
AND LATEST DATES FOR THE COMPLETION OF THE CONSTRUCTION OR
MODIFICATION.  UNLESS THE CONSTRUCTION OR MODIFICATION OF THE FACILITY
IS COMPLETED BY THE COMPLETION DATE, THE CONSTRUCTION PERMIT SHALL
EXPIRE, AND ALL RIGHTS THEREUNDER BE FORFEITED, UNLESS UPON GOOD CAUSE
SHOWN, THE COMMISSION EXTENDS THE COMPLETION DATE.  UPON THE COMPLETION
OF THE CONSTRUCTION OR MODIFICATION OF THE FACILITY, UPON THE FILING OF
ANY ADDITIONAL INFORMATION NEEDED TO BRING THE ORIGINAL APPLICATION UP
TO DATE, AND UPON FINDING THAT THE FACILITY AUTHORIZED HAS BEEN
CONSTRUCTED AND WILL OPERATE IN CONFORMITY WITH THE APPLICATION AS
AMENDED AND IN CONFORMITY WITH THE PROVISIONS OF THIS ACT AND OF THE
RULES AND REGULATIONS OF THE COMMISSION, AND IN THE ABSENCE OF ANY GOOD
CAUSE BEING SHOWN TO THE COMMISSION WHY THE GRANTING OF A LICENSE WOULD
NOT BE IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT, THE COMMISSION
SHALL THEREUPON ISSUE A LICENSE TO THE APPLICANT.  FOR ALL OTHER
PURPOSES OF THIS ACT, A CONSTRUCTION PERMIT IS DEEMED TO BE A
'LICENSE.'" 
..END :
















LOTT V. UNITED STATES 367 U.S. 421 


NO. 238.  ARGUED APRIL 18, 1961.  - DECIDED JUNE 12, 1961.  - 280 F.2D
24, REVERSED AND CAUSE REMANDED. 


HAVING BEEN INDICTED JOINTLY WITH TWO OTHER DEFENDANTS IN A FEDERAL
DISTRICT COURT FOR WILLFULLY ATTEMPTING AND CONSPIRING TO EVADE THE
FEDERAL INCOME TAXES OF THEIR CORPORATE EMPLOYER, PETITIONERS ENTERED
PLEAS OF NOLO CONTENDERE.  THE COURT ACCEPTED THEIR PLEAS BUT POSTPONED
PRONOUNCEMENT OF JUDGMENT PENDING CONCLUSION OF THE JURY TRIAL OF THE
OTHER TWO DEFENDANTS.  AFTER CONCLUSION OF THAT TRIAL ABOUT THREE
MONTHS LATER, THE COURT ORALLY PRONOUNCED ITS JUDGMENT CONVICTING
PETITIONERS AND SENTENCING THEM TO IMPRISONMENT.  A FORMAL JUDGMENT WAS
SIGNED AND FILED WITH THE CLERK THREE DAYS LATER.  THE NEXT DAY,
PETITIONERS FILED SEPARATE MOTIONS IN ARREST OF JUDGMENT, WHICH WERE
DENIED 20 DAYS LATER.  TWO DAYS AFTER SUCH DENIAL, PETITIONERS FILED
NOTICES OF APPEAL.  HELD:  THE APPEALS WERE NOT UNTIMELY UNDER RULE
37(A)(2) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE - REGARDLESS OF
WHETHER THAT RULE IS MODIFIED BY RULE 34 - SINCE IT WAS THE JUDGMENT OF
CONVICTION AND SENTENCE, NOT THE PLEAS OF NOLO CONTENDERE AND THEIR
ACCEPTANCE, THAT CONSTITUTED THE "DETERMINATION OF GUILT" WITHIN THE
MEANING OF RULE 34, SUCH MOTIONS WERE MADE WITHIN 5 DAYS AFTER THAT
DETERMINATION, AS REQUIRED BY RULE 34, AND THE NOTICES OF APPEAL WERE
FILED WITHIN 10 DAYS AFTER DENIAL OF SUCH MOTIONS, AS REQUIRED BY RULE
37(A)(2).  PP. 422-427. 

LOTT ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS CONCERNED WITH THE TIMELINESS OF AN APPEAL FROM A
JUDGMENT OF CONVICTION AND SENTENCE IN A CRIMINAL CASE UNDER RULE
37(A)(2) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  (FN1) 

THESE THREE PETITIONERS, HAVING BEEN JOINTLY INDICTED WITH TWO
OTHERS, ON FIVE COUNTS IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS FOR WILLFULLY ATTEMPTING AND CONSPIRING TO
EVADE THE FEDERAL INCOME TAXES OF THEIR CORPORATE EMPLOYER, (FN2)
ENTERED, AND THE COURT ACCEPTED, PLEAS OF NOLO CONTENDERE ON MARCH 17,
1959.  BUT THE COURT DECIDED THAT PRONOUNCEMENT OF ITS JUDGMENT SHOULD
AWAIT CONCLUSION OF THE IMPENDING JURY TRIAL OF THE OTHER TWO
DEFENDANTS.  (FN3)  SOON AFTER THE CONCLUSION OF THAT RATHER PROTRACTED
TRIAL, THE COURT, ON JUNE 19, 1959, ORALLY PRONOUNCED ITS JUDGMENT
CONVICTING PETITIONERS AND SENTENCING THEM TO IMPRISONMENT.   (FN4)
THREE DAYS LATER, ON JUNE 22, FORMAL JUDGMENT WAS PREPARED, SIGNED BY
THE JUDGE AND FILED WITH THE CLERK.  THE NEXT DAY, JUNE 23, PETITIONERS
FILED THEIR SEPARATE "MOTIONS) IN ARREST OF JUDGMENT."  (FN5)  THOSE
MOTIONS WERE DENIED ON JULY 13.  TWO DAYS LATER, ON JULY 15,
PETITIONERS FILED THEIR SEPARATE NOTICES OF APPEAL FROM THE JUDGMENT TO
THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.  (FN6) 

ON THE GOVERNMENT'S MOTION, THAT COURT DISMISSED THE APPEALS AS
UNTIMELY UNDER RULE 37(A)(2).  280 F.2D 24.  IT HELD, IN EFFECT, THAT,
ALTHOUGH THERE IS NOT SUCH EXPRESS LIMITATION IN THE RULES, THE
PROVISIONS OF RULE 34 (FN7) IMPLIEDLY MODIFY AND LIMIT THE PROVISIONS
OF RULE 37(A)(2).  AND IT CONCLUDED THAT, ALTHOUGH "MOTIONS)  ...  IN
ARREST OF JUDGMENT" HAD, IN FACT, "BEEN MADE WITHIN THE 10-DAY PERIOD"
AFTER ENTRY OF THE JUDGMENT APPEALED FROM (RULE 37(A)(2), IT CANNOT BE
SO REGARDED UNDER THESE RULES BECAUSE THE TENDER BY PETITIONERS AND
ACCEPTANCE BY THE COURT OF THE PLEAS OF NOLO CONTENDERE ON MARCH 17
CONSTITUTED THE "DETERMINATION OF (THEIR) GUILT," AND, INASMUCH AS THE
MOTIONS IN ARREST WERE NOT MADE "WITHIN 5 DAYS AFTER (THAT)
DETERMINATION OF GUILT" AS REQUIRED BY RULE 34, IT FOLLOWED THAT, TO BE
TIMELY UNDER RULE 37(A)(2), THE APPEALS HAD TO "BE TAKEN WITHIN 10 DAYS
AFTER ENTRY OF THE JUDGMENT OR ORDER APPEALED FROM" (RULE 37(A)(2)), OR
BY JUNE 30 OR JULY 2 - DEPENDING UPON WHETHER IT WAS THE ORAL
PRONOUNCEMENT OF JUNE 19 OR THE FORMAL ENTRY OF JUNE 22 THAT
CONSTITUTED THE JUDGMENT - AND NOT "WITHIN 10 DAYS AFTER ENTRY OF THE
ORDER DENYING THE MOTION."  (RULE 37(A)(2).)  280 F.2D, AT 27-28. 
BECAUSE OF A CONFLICT BETWEEN THE CIRCUITS UPON THE QUESTION PRESENTED
(FN8) AND OF ITS IMPORTANCE TO THE PROPER ADMINISTRATION OF THE
CRIMINAL RULES, WE GRANTED CERTIORARI.  364 U.S. 813. 

BUTTRESSED BY LUJAN V. UNITED STATES, 204 F.2D 171 (C.A. 10TH CIR.),
AND SMITH V. UNITED STATES, 273 F.2D 462 (C.A. 10TH CIR.), HOLDING, ON
SIMILAR FACTS, THAT RULE 37(A)(2) ALONE AND UNAFFECTED BY ANY OTHER
RULE PRESCRIBES THE TIME WITHIN WHICH AN APPEAL MUST BE TAKEN TO A
COURT OF APPEALS IN A CRIMINAL CASE, AND FURTHER BUTTRESSED BY THEIR
BELIEF THAT THIS COURT, TOO, SO HELD, EVEN IF SUB SILENTIO, IN
EXERCISING JURISDICTION, UNDER FACTS VIRTUALLY IDENTICAL TO THOSE HERE,
IN SULLIVAN V. UNITED STATES, 348 U.S. 170, PETITIONERS POINT TO THE
FACTS THAT RULE 37(A)(2) IS CAPTIONED "TIME FOR TAKING APPEAL"; THAT IT
IS THE ONLY RULE THAT PURPORTS TO DEAL WITH THE SUBJECT; THAT IT DOES
NOT SPEAK OF MOTIONS FILED WITHIN FIVE DAYS, NOR AFTER "VERDICT OR
FINDING OF GUILTY" (RULE 33), NOR AFTER "DETERMINATION OF GUILT" (RULE
34) - WHATEVER THAT TERM MAY MEAN - AND MAKES NO REFERENCE TO
TIMELINESS, UNDER ANY OTHER RULE, OF THE MOTIONS OF WHICH IT SPEAKS,
BUT THAT IT SIMPLY SAYS IN PLAIN AND UNMISTAKABLE LANGUAGE THAT "AN
APPEAL BY A DEFENDANT MAY BE TAKEN WITHIN 10 DAYS AFTER ENTRY OF THE
JUDGMENT OR ORDER APPEALED FROM, BUT IF A MOTION ...  IN ARREST OF
JUDGMENT HAS BEEN MADE WITHIN THE 10-DAY PERIOD AN APPEAL FROM A
JUDGMENT OF CONVICTION MAY BE TAKEN WITHIN 10 DAYS AFTER ENTRY OF THE
ORDER DENYING THE MOTION."  THEN, AFTER POINTING TO THE ADMITTED FACT
THAT THEIR MOTIONS IN ARREST WERE "MADE WITHIN THE 10-DAY PERIOD" -
ACTUALLY WITHIN THREE DAYS - AFTER ENTRY OF THE JUDGMENT APPEALED FROM,
AND THAT THEY APPEALED ON THE SECOND DAY AFTER THEIR MOTIONS WERE
DENIED, PETITIONERS STRENUOUSLY INSIST THAT THEIR APPEALS WERE TIMELY. 
THEY CONTEND THAT TO HOLD THEIR APPEALS TO HAVE BEEN UNTIMELY, IN THESE
CIRCUMSTANCES, WOULD BE TO MUTILATE THE PLAIN LANGUAGE OF RULE 37(A)(2)
AND TO MAKE OF IT A TRAP EVEN FOR THE WARY - INCLUDING THEIR
EXPERIENCED AND COMPETENT COUNSEL WHO WERE DOING THEIR BEST TO PROTECT
PETITIONERS' RIGHTS OF APPEAL.  AND THEY INSIST THAT SUCH A SNARE
SHOULD NOT BE PERMITTED TO DEPRIVE ONE OF THE VALUABLE RIGHT OF AN
APPEAL UPON WHICH HIS LIBERTY, OR EVEN HIS LIFE, MAY WELL DEPEND. 

THOUGH WE ARE IMPRESSED BY THIS DEMONSTRATION AND ARGUMENT, AS ALSO
BY THE LEGALISMS OF THE GOVERNMENT'S CONTERVAILING ARGUMENT, AND
ALTHOUGH RECOGNIZING, AS WE DO, THE OBSCURITY, IF NOT INCONSISTENCY, IN
THESE RULES THAT HAS BEEN EXPOSED BY THIS CASE, WE NEED NOT HERE DECIDE
WHETHER RULES 33 AND 34 MODIFY RULE 37(A)(2) SO AS TO LIMIT THE TIME
WHICH IT SPECIFIES FOR THE TAKING OF AN APPEAL - BUT MAY AND SHOULD
LEAVE THAT PROBLEM AND ITS KINDRED ONES, BROUGHT TO THE FORE IN THIS
CASE, FOR RESOLUTION BY THE RULE-MAKING PROCESS, (FN9) UNITED STATES V.
ROBINSON, 361 U.S. 220 - FOR WE HAVE CONCLUDED THAT IT WAS THE JUDGMENT
OF CONVICTION AND SENTENCE, NOT THE TENDER AND ACCEPTANCE OF THE PLEAS
OF NOLO CONTENDERE, THAT CONSTITUTED THE "DETERMINATION OF GUILT"
WITHIN THE MEANING OF RULE 34.  AND, INASMUCH AS THE MOTIONS IN ARREST
WERE "MADE WITHIN 5 DAYS AFTER (THAT) DETERMINATION OF GUILT," AS
REQUIRED BY RULE 34, AND THUS, IN ANY VIEW, WERE ALSO "MADE WITHIN THE
10-DAY PERIOD" AFTER ENTRY OF THE JUDGMENT APPEALED FROM, AS REQUIRED
BY RULE 37(A)(2), THE APPEAL, TAKEN "WITHIN 10 DAYS AFTER ENTRY OF THE
ORDER DENYING THE MOTION," WAS TIMELY. 

ALTHOUGH IT IS SAID THAT A PLEA OF NOLO CONTENDERE MEANS LITERALLY "I
DO NOT CONTEST IT," PIASSICK V. UNITED STATES, 253 F.2D 658, 661, AND
"IS A MERE STATEMENT OF UNWILLINGNESS TO CONTEST AND NO MORE," MICKLER
V. FAHS, 243 F.2D 515, 517, IT DOES ADMIT "EVERY ESSENTIAL ELEMENT OF
THE OFFENSE (THAT IS) WELL PLEADED IN THE CHARGE."  UNITED STATES V.
LAIR, 195 F.47, 52 (C.A. 8TH CIR.).  CF. UNITED STATES V. FRANKFORT
DISTILLERIES, 324 U.S. 293, 296.  HENCE, IT IS TANTAMOUNT TO "AN
ADMISSION OF GUILT FOR THE PURPOSES OF THE CASE," HUDSON V. UNITED
STATES, 272 U.S. 451, 455, AND "NOTHING IS LEFT BUT TO RENDER JUDGMENT,
FOR THE OBVIOUS REASON THAT IN THE FACE OF THE PLEA NO ISSUE OF FACTS
EXISTS, AND NONE CAN BE MADE WHILE THE PLEA REMAINS OF RECORD," UNITED
STATES V. NORRIS, 281 U.S. 619, 623.  YET THE PLEA ITSELF DOES NOT
CONSTITUTE A CONVICTION NOR HENCE A "DETERMINATION OF GUILT."  IT IS
ONLY A CONFESSION OF THE WELL-PLEADED FACTS IN THE CHARGE.  IT DOES NOT
DISPOSE OF THE CASE.  IT IS STILL UP TO THE COURT "TO RENDER JUDGMENT"
THEREON.  UNITED STATES V.  NORRIS, SUPRA, AT 623.  AT ANY TIME BEFORE
SENTENCE IS IMPOSED - I.E., BEFORE THE PRONOUNCEMENT OF JUDGMENT - THE
PLEA MAY BE WITHDRAWN, WITH THE CONSENT OF THE COURT.  RULE 32(D), FED.
RULES CRIM. PROC. NECESSARILY, THEN, IT IS THE JUDGMENT OF THE COURT -
NOT THE PLEA - THAT CONSTITUTES THE "DETERMINATION OF GUILT."  APART
FROM THE OPINION BELOW, WE HAVE NOT BEEN CITED TO ANY CASE, AND HAVE
FOUND NONE, THAT HOLDS OR EVEN INTIMATES THE CONTRARY. 

IN VIEW OF THIS DISPOSITION OF THE JURISDICTIONAL QUESTION, WE NEED
NOT DECIDE PETITIONER'S ALTERNATIVE CONTENTIONS THAT THEIR MOTIONS IN
ARREST SHOULD BE TREATED AS MOTIONS UNDER RULE 12(B)(2) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE (SEE FINN V. UNITED STATES, 256 F.2D 304,
306 (C.A. 4TH CIR.); HOTCH V. UNITED STATES, 208 F.2D 244, 250 (C.A.
9TH CIR.); UNITED STATES V. HOLMES, 110 F. SUPP. 233, 234 (D.C.S.D.
TEX.)), OR AS MOTIONS TO VACATE SENTENCES UNDER 28 U.S.C. SEC. 2255
(SEE MARTENEY V. UNITED STATES, 216 F.2D 760 (C.A. 10TH CIR.); FINN V.
UNITED STATES, SUPRA). 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF
APPEALS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  "RULE 37.  TAKING APPEAL; AND PETITION FOR WRIT OF CERTIORARI. 

"(A) TAKING APPEAL TO A COURT OF APPEALS. 

"(2) TIME FOR TAKING APPEAL.  AN APPEAL BY A DEFENDANT MAY BE TAKEN
WITHIN 10 DAYS AFTER ENTRY OF THE JUDGMENT OR ORDER APPEALED FROM, BUT
IF A MOTION FOR A NEW TRIAL OR IN ARREST OF JUDGMENT HAS BEEN MADE
WITHIN THE 10-DAY PERIOD AN APPEAL FROM A JUDGMENT OF CONVICTION MAY BE
TAKEN WITHIN 10 DAYS AFTER ENTRY OF THE ORDER DENYING THE MOTION  ...
." 

FN2  THE CORPORATE EMPLOYER AND TAXPAYER WAS FARNSWORTH & CHAMBERS
CO., INC. PETITIONERS WERE EMPLOYEE-OFFICERS OF THAT CORPORATION, AND
COLLECTIVELY OWNED APPROXIMATELY 7 PERCENT OF ITS ISSUED AND
OUTSTANDING CAPITAL STOCK.  THE FIRST FOUR COUNTS OF THE INDICTMENT
CHARGED WILLFUL ATTEMPT TO EVADE THE CORPORATION'S INCOME TAXES FOR THE
YEARS 1951, 1952, 1953, AND 1954, RESPECTIVELY, AND THE FIFTH COUNT
CHARGED A CONSPIRACY TO COMMIT THE FOUR SUBSTANTIVE OFFENSES CHARGED. 

FN3  THE TWO CODEFENDANTS WHO STOOD TRIAL WERE RICHARD A. FARNSWORTH,
SR., AND HIS SON.  THEY OWNED A MAJOR PART OF THE CORPORATION'S CAPITAL
STOCK.  THEIR TRIAL, WHICH BEGAN ON APRIL 6, 1959, AND CONTINUED
THROUGH JUNE 9, RESULTED IN A VERDICT OF ACQUITTAL OF THE SON ON ALL
COUNTS, AND A FAILURE OF THE JURY TO AGREE ON ANY OF THE COUNTS AS TO
THE FATHER. 

FN4  PETITIONERS WERE SENTENCED TO IMPRISONMENT - BLOCKER FOR THREE
YEARS, LOTT AND FRAZIER FOR TWO YEARS, ON EACH COUNT, THE SENTENCES TO
RUN CONCURRENTLY, AND EACH WAS FINED $20,000. 

FN5  EACH OF THE MOTIONS IN ARREST PRAYED, INTER ALIA, "THAT THE
JUDGMENT AND SENTENCE  ...  BE ARRESTED AND SET ASIDE, THAT THE
INDICTMENT  ...  BE DISMISSED, AND THAT (THERE) BE GRANTED SUCH OTHER
RELIEF AS JUSTICE MAY DEMAND." 

FN6  ACTUALLY, ONLY LOTT APPEALED ON JULY 15.  BLOCKER AND FRAZIER
APPEALED TWO DAYS LATER, ON JULY 17. 

FN7  "RULE 34.  ARREST OF JUDGMENT. 

"THE COURT SHALL ARREST JUDGMENT IF THE INDICTMENT OR INFORMATION
DOES NOT CHARGE AN OFFENSE OR IF THE COURT WAS WITHOUT JURISDICTION OF
THE OFFENSE CHARGED.  THE MOTION IN ARREST OF JUDGMENT SHALL BE MADE
WITHIN 5 DAYS AFTER DETERMINATION OF GUILT OR WITHIN SUCH FURTHER TIME
AS THE COURT MAY FIX DURING THE 5-DAY PERIOD." 

FN8  IN ACCORD WITH THE DECISION BELOW IS UNITED STATES V. BERTONE,
249 F.2D 156 (C.A. 3D CIR.). AND SEE O'NEAL V. UNITED STATES, 264 F.2D
809 (C.A. 5TH CIR.); DROWN V. UNITED STATES 198 F.2D 999 (C.A. 9TH
CIR.); GODWIN V. UNITED STATES 185 F.2D 411 (C.A. 8TH CIR.).  TO THE
CONTRARY ARE LUJAN V. UNITED STATES, 204 F.2D 171 (C.A. 10TH CIR.);
SMITH V. UNITED STATES, 273 F.2D 462 (C.A. 10TH CIR.); AND SEE SULLIVAN
V. UNITED STATES, 212 F.2D 125 (C.A. 10TH CIR.), AFFIRMED, 348 U.S.
170. 

FN9  IN LIGHT OF THE CONFUSION THAT HAS ARISEN UNDER THESE RULES, AS
EXPOSED BY THIS CASE, IT IS HOPED THAT THOSE WHO ADVISE THE COURT WITH
RESPECT TO THE EXERCISE OF ITS RULE-MAKING POWERS - MORE PARTICULARLY
OF COURSE THE JUDICIAL CONFERENCE OF THE UNITED STATES (28 U.S.C. SEC.
331) AND THE ADVISORY COMMITTEE ON FEDERAL RULES OF CRIMINAL PROCEDURE
WILL GIVE THESE PROBLEMS THEIR EARLY ATTENTION. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
HARLAN AND MR. JUSTICE STEWART JOIN, DISSENTING. 

THE COURT CHARACTERIZES "DETERMINATION OF GUILT," AS USED IN RULE 34,
(FN1) BY THE SIGNIFICANT PHRASE, "WHATEVER THAT TERM MAY MEAN."  IT
THEN FINDS THAT THE ACCEPTANCE OF A NOLO CONTENDERE PLEA IS NOT SUCH A
DETERMINATION.  I SUBMIT THAT THIS COURT HAS HELD THAT ACCEPTANCE OF
SUCH A PLEA IS A "DETERMINATION OF GUILT," AND THAT TODAY'S DECISION IS
NOT ONLY CONTRARY TO PRIOR CASES, BUT IS ALSO OUT OF TUNE WITH THE LONG
ACCEPTED PRACTICE OF BOTH FEDERAL AND STATE COURTS.  BELIEVING THAT IT
WILL RESULT IN SUCH CONFUSION AS TO THE REQUIREMENTS OF OUR RULES THAT
THE ADMINISTRATION OF CRIMINAL JUSTICE WILL BE ADVERSELY AFFECTED, I
MUST RESPECTFULLY DISSENT. 

AT THE TIME PETITIONERS BLOCKER AND FRAZIER OFFERED THEIR PLEAS
(MARCH 17), THE GOVERNMENT OBJECTED TO THEIR ACCEPTANCE BY THE COURT,
AS IT DID WHEN LOTT OFFERED HIS (MARCH 20).  THE COURT HEARD COUNSEL
AND WARNED THE PARTIES OF THE SERIOUSNESS OF THE CHARGE, I.E., THAT THE
CHARGE WAS WILLFUL TAX AVOIDANCE, THAT THE PLEA WAS VOLUNTARILY MADE
WITHOUT PROMISES, AND THAT THE SENTENCE MIGHT BE FIVE YEARS'
CONFINEMENT IN ADDITION TO A LARGE FINE.  AFTER BEING ASSURED BY EACH
OF THE PARTIES THAT HE WISHED TO ENTER HIS PLEA, THE COURT ACCEPTED
THEM.  ORDERS WERE ENTERED IN THE MINUTES OF THE COURT AS TO EACH
DEFENDANT, ACCEPTING THE PLEAS AND DIRECTING THAT A "PRE-SENTENCE
INVESTIGATION" BE UNDERTAKEN "FOR SENTENCE AT CONCLUSION OF ENTIRE
CASE."  THE DELAY AS TO SENTENCE WAS OCCASIONED BY THE AWAITED TRIAL OF
TWO ADDITIONAL DEFENDANTS WHO HAD PLEADED NOT GUILTY.  THE RECORD SHOWS
THAT ON JUNE 19, AFTER THAT TRIAL WAS CONCLUDED (ONE DEFENDANT BEING
ACQUITTED AND THE OTHER HAVING A HUNG JURY), PETITIONERS APPEARED IN
COURT "ON THE CRIMINAL ACTION DOCKET FOR SENTENCE  ...  ."  THE COURT,
IN ADDRESSING THE PARTIES, SAID, "ALL THREE OF YOU HAVE ENTERED A PLEA
OF NOLO CONTENDERE, AND THAT IS EQUIVALENT TO A PLEA OF GUILTY." 
NEITHER COUNSEL NOR THE PARTIES MADE ANY COMMENT ON THIS
CHARACTERIZATION OF THEIR PLEAS.  THEREAFTER, PETITIONERS AND COUNSEL
MADE STATEMENTS IN MITIGATION, AFTER WHICH SENTENCE WAS PRONOUNCED.  AT
NO TIME WERE ANY MOTIONS MADE FOR PERMISSION TO WITHDRAW THE PLEAS.  ON
JUNE 22, THE FORMAL JUDGMENTS AND COMMITMENTS ON THE SENTENCES WERE
ENTERED AND EACH PETITIONER FILED A MOTION IN ARREST OF JUDGMENT ON THE
NEXT DAY.  IT IS THESE MOTIONS THAT THE COURT OF APPEALS HELD SHOULD
HAVE BEEN FILED WITHIN FIVE DAYS OF THE ACCEPTANCE OF THE PLEAS OF NOLO
CONTENDERE IN MARCH.  THE COURT, HOWEVER, HOLDS THAT THE CRUCIAL DATE
ON WHICH THE "DETERMINATION OF GUILT" WAS MADE WAS THE DAY OF THE
JUDGMENT OF CONVICTION AND SENTENCE.  (FN2) SINCE THE MOTIONS IN ARREST
CAME WITHIN FIVE DAYS THEREAFTER, THE COURT SAYS THEY WERE TIMELY UNDER
RULE 34, AS WERE THE APPEALS THAT FOLLOWED, UNDER RULE 37(A)(2). 
(FN3) 

RULE II(2) OF THE CRIMINAL APPEALS RULES, 292 U.S. 661, 662, THE
PREDECESSOR OF PRESENT RULE 34, STATED THAT "MOTIONS IN ARREST OF
JUDGMENT  ...  SHALL BE MADE WITHIN THREE (3) DAYS AFTER VERDICT OR
FINDING OF GUILT."  CERTAINLY "VERDICT" REFERRED TO A JURY VERDICT OF
GUILT.  A PLEA OF GUILTY HAS ALWAYS BEEN CONSIDERED THE EQUIVALENT OF A
JURY FINDING OF GUILTY.  SEE UNITED STATES V. NORRIS, 281 U.S. 619
(1930); UNITED STATES V. BRADFORD, 194 F.2D 197.  THE SAME IS TRUE OF A
PLEA OF NOLO CONTENDERE.  OUR CASES HAVE LONG AND CONSISTENTLY HELD
THAT, "LIKE THE PLEA OF GUILTY, IT IS AN ADMISSION OF GUILT FOR THE
PURPOSES OF THE CASE."  HUDSON V. UNITED STATES, 272 U.S. 451, 455
(1926).  AS THIS COURT SAID IN UNITED STATES V. NORRIS, SUPRA, AFTER
ITS ENTRY, "THE PLEA OF NOLO CONTENDERE, UPON THAT QUESTION (OF GUILT
OR INNOCENCE) AND FOR THAT CASE, WAS AS CONCLUSIVE AS A PLEA OF GUILTY
WOULD HAVE BEEN  ...  .  THE COURT WAS NO LONGER CONCERNED WITH THE
QUESTION OF GUILT, BUT ONLY WITH THE CHARACTER AND EXTENT OF THE
PUNISHMENT  ...  .  THE REMEDY OF THE ACCUSED ...  WAS TO WITHDRAW, BY
LEAVE OF COURT, THE PLEA OF NOLO CONTENDERE  ...  ."  AT P. 623. 

RULE 34, THE SUCCESSOR TO RULE II(2), IS LIKEWISE CLEAR AND
UNAMBIGUOUS - IT SAYS THE MOTION MUST BE FILED WITHIN FIVE DAYS OF
"DETERMINATION OF GUILT," NOT THE TIME OF JUDGMENT OR SENTENCE.  THE
COURT TODAY, HOWEVER, REWRITES THE RULE BY HOLDING THAT THE JUDGMENT
DATE IS THE CONTROLLING ONE.  "IT IS THE JUDGMENT OF THE COURT  ...
THAT CONSTITUTES THE 'DETERMINATION OF GUILT.'"  ANTE, P. 427.  IT HAS,
HOWEVER, LONG BEEN RECOGNIZED THAT DETERMINATION OF GUILT AND ENTRY OF
JUDGMENT ARE DISPARATE.  UNITED STATES V. NORRIS, SUPRA; FED. RULES
CRIM. PROC., 32(B).  IF THE FRAMERS OF THE RULES HAD INTENDED TO HAVE
THE TIME FOR FILING THE MOTION IN ARREST RUN FROM THE DATE OF JUDGMENT,
THEY WOULD HAVE SAID SO. INSTEAD THEY SAID THAT RULE 34 "CONTINUES
EXISTING LAW EXCEPT THAT IT ENLARGES THE TIME FOR MAKING MOTIONS IN
ARREST OF JUDGMENT FROM 3 DAYS TO 5 DAYS.  SEE RULE II(2) OF CRIMINAL
APPEALS RULES, 292 U.S. 661."  (FN4)  "EXISTING LAW" DID NOT ALLOW
MOTIONS IN ARREST UNLESS MADE WITHIN THREE DAYS OF "VERDICT OR FINDING
OF GUILT." 

THE MAJORITY NOTES PETITIONERS' ARGUMENT THAT SULLIVAN V. UNITED
STATES, 348 U.S. 170 (1954), SUPPORTS TODAY'S DECISION "EVEN IF SUB
SILENTIO."  WITH DUE DEFERENCE, I SAY IT DOES NOT.  NO QUESTION OF
JURISDICTION WAS RAISED OR CONSIDERED IN THAT CASE, EITHER IN THE COURT
OF APPEALS OR IN THIS COURT.  (FN5)  THE CASE DEALT SOLELY WITH THE
MERITS OF MOTIONS TO DISMISS AND TO WITHDRAW A PLEA OF NOLO CONTENDERE
UNDER RULE 32(D) AFTER SENTENCE. 

THE COURT ATTEMPTS TO BOLSTER ITS DECISION BY NOTING THAT A NOLO
CONTENDERE PLEA "DOES NOT CONSTITUTE A CONVICTION," THAT IT "DOES NOT
DISPOSE OF THE CASE" AND THAT "IT IS STILL UP TO THE COURT 'TO RENDER
JUDGMENT' THEREON."  HOWEVER, THESE STATEMENTS ARE JUST AS TRUE WHEN A
GUILTY PLEA IS ACCEPTED OR THE JURY RETURNS A VERDICT OF GUILTY.  THEY
CERTAINLY WERE EQUALLY TRUE UNDER FORMER RULE II(2).  THE JUDGMENT
SENTENCING AND COMMITTING THE DEFENDANT IN EACH OF THESE INSTANCES
WOULD STILL HAVE TO BE ENTERED.  IN ACTUAL PRACTICE, THEN, NOTHING MORE
IS LEFT TO BE DONE BY THE COURT AFTER ACCEPTING A NOLO CONTENDERE PLEA
THAN IS NECESSARY AFTER ACCEPTING A GUILTY PLEA OR AFTER A JURY RETURNS
A VERDICT OF GUILTY.  IN EACH OF THE THREE SITUATIONS, GUILT HAS BEEN
DETERMINED UPON THE ACCEPTANCE BY THE COURT OF THE RESPECTIVE PLEAS OR
OF THE VERDICT OF THE JURY.  IN EACH CASE, MOTIONS TO WITHDRAW THE
PLEAS OR TO SET ASIDE THE VERDICT MAY BE MADE, AND MIGHT BE GRANTED,
BUT THEIR AVAILABILITY DOES NOT ALTER THE FACT THAT, UNTIL ANY SUCH
MOTION IS GRANTED, THERE HAS BEEN A DETERMINATION OF GUILT. 

IT APPEARS RATHER UNSEEMLY TO ME FOR THE COURT TO ENLARGE, THROUGH
JUDICIAL DECISION, THE TIME FOR FILING MOTIONS IN ARREST AND, IN
CONSEQUENCE, THAT FOR TAKING AN APPEAL.  ONLY LAST TERM, WE SAID IN
UNITED STATES V. ROBINSON, 361 U.S. 220, 229 (1960), THAT THIS SHOULD
BE EFFECTED "THROUGH THE RULE-MAKING PROCESS  ...  ."  AS WAS POINTED
OUT THERE, RULE 45(B) SPECIFICALLY PROVIDES THAT "THE COURT MAY NOT
ENLARGE THE PERIOD FOR TAKING ANY ACTION UNDER RULES 33, 34 AND 35,
EXCEPT AS OTHERWISE PROVIDED IN THOSE RULES, OR THE PERIOD FOR TAKING
AN APPEAL."  THE COURT HAS, BY TODAY'S OPINION, ENLARGED THE TIME
PROVIDED IN THESE RULES, CONTRARY TO THEIR EXPRESS PROVISION, CONTRARY
TO OUR PRIOR CASES, AND CONTRARY TO THE LONG-ESTABLISHED PRACTICE AT
THE BAR.  IN SO DOING, IT PLACES THESE RULES IN A STATE OF UTTER
CONFUSION, AND MUST THEREBY SURELY DRIVE THE BAR AND THE TRIAL COURTS
TO PROCEDURAL DISTRACTION.  I WOULD AFFIRM. 

FN1  RULE 34 STATES IN PERTINENT PART THAT "THE MOTION IN ARREST OF
JUDGMENT SHALL BE MADE WITHIN 5 DAYS AFTER DETERMINATION OF GUILT OR
WITHIN SUCH FURTHER TIME AS THE COURT MAY FIX DURING THE 5-DAY
PERIOD." 

FN2  WHETHER THIS DATE IS JUNE 19, WHEN THE COURT ORALLY PRONOUNCED
SENTENCE, OR JUNE 22, WHEN THE COURT FORMALLY ENTERED JUDGMENTS AND
COMMITMENTS, IS NOT MADE CLEAR FOR, UNDER THE COURT'S RATIONALE, THESE
APPEALS WOULD BE TIMELY IF EITHER DATE WERE CONSIDERED THAT OF THE
"DETERMINATION OF GUILT." 

FN3  WHILE THE COURT DOES NOT PLACE ITS DECISION SOLELY ON THE
LANGUAGE OF RULE 37(A)(2), IT IS WELL TO NOTE THAT UNDER THAT RULE AN
APPEAL MUST BE TAKEN "WITHIN TEN DAYS AFTER ENTRY OF THE JUDGMENT." 
IF, HOWEVER, A MOTION "IN ARREST OF JUDGMENT HAS BEEN MADE WITHIN THE
10-DAY PERIOD," THE APPEAL PERIOD IS TOLLED UNTIL THE MOTION IS
OVERRULED.  PETITIONERS ARGUE THAT SINCE THEIR MOTIONS IN ARREST WERE
FILED WITHIN THE "10-DAY PERIOD" SUBSEQUENT TO JUDGMENT AND WERE NOT
OVERRULED UNTIL JULY 13, THEIR APPEALS (FILED JULY 17) ARE TIMELY.  I
ASSUME THAT THE COURT CONSIDERS THIS CONTENTION - MAKING RULE 34 MERE
SURPLUSAGE - ENTIRELY UNTENABLE SINCE IT SPECIFICALLY REFUSES TO PASS
UPON IT. 

FN4  NOTES OF ADVISORY COMMITTEE ON RULES, 18 U.S.C. (1958 ED.), AT
P. 3428. 

FN5  PETITIONER'S PLEA OF NOLO CONTENDERE WAS ENTERED ON APRIL 8 AND
IMMEDIATELY ACCEPTED BY THE COURT.  HIS MOTION IN ARREST OF JUDGMENT
WAS FILED ON MAY 29 AND DENIED ON JUNE 23.  THE DISTRICT COURT GAVE NO
REASON FOR ITS DENIAL.  THE APPEAL WAS FILED JUNE 23. 
..END :




RECK V. PATE 367 U.S. 433 


NO. 181.  ARGUED APRIL 19, 1961 - DECIDED JUNE 12, 1961 - 274 F.2D 250,
JUDGMENT VACATED AND CASE REMANDED. 


PETITIONER, THEN A MENTALLY RETARDED 19-YEAR-OLD YOUTH WITH NO
CRIMINAL RECORD, WAS ARRESTED IN 1936 ON SUSPICION OF STEALING
BICYCLES.  AFTER BEING HELD VIRTUALLY INCOMMUNICADO AND INTERROGATED BY
GROUPS OF POLICE OFFICERS FOR NEARLY FOUR DAYS WHILE SICK AND FAINT,
INADEQUATELY FED, WITHOUT A HEARING AND WITHOUT THE ADVICE OF COUNSEL,
FAMILY OR FRIENDS, HE CONFESSED TO PARTICIPATION IN A MURDER.  AT HIS
TRIAL IN AN ILLINOIS STATE COURT FOR MURDER, HIS TWO WRITTEN
CONFESSIONS WERE ADMITTED IN EVIDENCE OVER HIS TIMELY OBJECTION, AND HE
WAS CONVICTED AND SENTENCED TO PRISON FOR 199 YEARS.  HELD:  ON THE
RECORD IN THIS CASE, PETITIONER'S CONFESSIONS WERE COERCED, AND THE
STATE VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY
USING THEM AS EVIDENCE IN HIS TRIAL.  PP. 433-444. 

RECK V. PATE, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON THE NIGHT OF JANUARY 2, 1936, DR. SILBER C. PEACOCK, A CHICAGO
PHYSICIAN, LEFT HIS EDGEWATER BEACH APARTMENT IN RESPONSE TO AN
EMERGENCY TELEPHONE CALL TO ATTEND A SICK CHILD.  HE NEVER RETURNED. 
THE NEXT DAY HIS LIFELESS BODY WAS FOUND IN HIS AUTOMOBILE ON A CHICAGO
STREET.  IT WAS APPARENT THAT HE HAD BEEN BRUTALLY MURDERED.  ON
WEDNESDAY, MARCH 25, 1936, THE PETITIONER, EMIL RECK, AND THREE OTHERS
WERE ARRESTED BY THE CHICAGO POLICE ON SUSPICION OF STEALING BICYCLES. 
LATE THE FOLLOWING SATURDAY AFTERNOON RECK CONFESSED TO PARTICIPATION
IN THE MURDER OF DR. PEACOCK.  THE NEXT DAY HE SIGNED ANOTHER WRITTEN
CONFESSION.  AT RECK'S SUBSEQUENT TRIAL IN THE CRIMINAL COURT OF COOK
COUNTY, ILLINOIS, THE TWO CONFESSIONS WERE, OVER TIMELY OBJECTION,
RECEIVED IN EVIDENCE AGAINST HIM.  THE JURY FOUND RECK GUILTY OF
MURDER, AND HE WAS SENTENCED TO PRISON FOR A TERM OF 199 YEARS. 

THE CONVICTION WAS AFFIRMED BY THE ILLINOIS SUPREME COURT, PEOPLE V.
RECK, 392 ILL. 311, 64 N.E.2D 526.  SEVERAL YEARS LATER RECK FILED A
PETITION UNDER THE ILLINOIS POST-CONVICTION HEARING ACT, ALLEGING THAT
HIS CONFESSIONS HAD BEEN PROCURED BY COERCION AND THAT THEIR USE AS
EVIDENCE AT HIS TRIAL HAD, THEREFORE, VIOLATED THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  (FN1)  AFTER A HEARING, THE CRIMINAL
COURT OF COOK COUNTY DENIED RELIEF.  THE SUPREME COURT OF ILLINOIS
AFFIRMED THE CRIMINAL COURT'S FINDING THAT DUE PROCESS HAD NOT BEEN
VIOLATED AT RECK'S TRIAL.  RECK V. PEOPLE, 7 ILL. 2D 261, 130 N.E.2D
200.  THIS COURT DENIED CERTIORARI "WITHOUT PREJUDICE TO AN APPLICATION
FOR A WRIT OF HABEAS CORPUS IN AN APPROPRIATE UNITED STATES DISTRICT
COURT."  RECK V. ILLINOIS, 351 U.S. 942.  RECK THEN FILED A PETITION
FOR HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS.  THE WRIT ISSUED, AND AT THE HEARING THE DISTRICT
COURT RECEIVED IN EVIDENCE THE TRANSCRIPTS OF ALL RELEVANT PROCEEDINGS
IN THE ILLINOIS COURTS.  (FN2)  IN AN OPINION REVIEWING IN DETAIL THE
CIRCUMSTANCES SURROUNDING RECK'S CONFESSION, THE DISTRICT COURT HELD
"THE DUE PROCESS CLAUSE NOT VIOLATED IN THE INSTANT CASE."  172 F.
SUPP. 734.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED, ONE
JUDGE DISSENTING, 274 F.2D 250, AND WE GRANTED CERTIORARI, 363 U.S.
838.  THE ONLY QUESTION PRESENTED IS WHETHER THE STATE OF ILLINOIS
VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY USING AS
EVIDENCE AT RECK'S TRIAL CONFESSIONS WHICH HE HAD BEEN COERCED INTO
MAKING. 

THE QUESTION WHETHER THERE HAS BEEN A VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT BY THE INTRODUCTION OF AN
INVOLUNTARY CONFESSION IS ONE WHICH IT IS THE ULTIMATE RESPONSIBILITY
OF THIS COURT TO DETERMINE.  SEE MALINSKI V. NEW YORK, 324 U.S. 401,
404; THOMAS V. ARIZONA, 356 U.S. 390, 393; WATTS V. INDIANA, 338 U.S.
49, 51-52.  AFTER THOROUGHLY REVIEWING THE RECORD IN THIS CASE, WE ARE
SATISFIED THAT THE DISTRICT JUDGE'S SUMMARY OF THE UNDISPUTED FACTS IS
ACCURATE AND COMPLETE.  NEITHER IN BRIEF NOR ORAL ARGUMENT DID THE
RESPONDENT TAKE ISSUE WITH THESE FINDINGS.  NO USEFUL PURPOSE WOULD BE
SERVED BY ATTEMPTING TO PARAPHRASE THE DISTRICT JUDGE'S WORDS:

"  ...  EMIL RECK WAS AT THE TIME OF THIS HORRIBLE CRIME BUT NINETEEN
YEARS OLD.  THROUGHOUT HIS LIFE HE HAD BEEN REPEATEDLY CLASSIFIED AS
MENTALLY RETARDED AND DEFICIENT BY PSYCHOLOGISTS AND PSYCHIATRISTS OF
THE INSTITUTE FOR JUVENILE RESEARCH IN CHICAGO.  AT ONE TIME HE HAD
BEEN COMMITTED TO AN INSTITUTION FOR THE FEEBLEMINDED, WHERE HE HAD
SPENT A YEAR.  HE DROPPED OUT OF SCHOOL AT THE AGE OF 16, NEVER HAVING
COMPLETED THE 7TH GRADE, AND WAS FOUND TO HAVE THE INTELLIGENCE OF A
CHILD BETWEEN 10 AND 11 YEARS OF AGE AT THE TIME OF HIS TRIAL.  ASIDE
FROM HIS RETARDATION, HE WAS NEVER A BEHAVIOR PROBLEM AND BORE NO
CRIMINAL RECORD. 

"RECK WAS ARRESTED IN CHICAGO WITHOUT A WARRANT AT 11:00 A.M.
WEDNESDAY, MARCH 25, 1936, ON SUSPICION OF STEALING BICYCLES.  HE WAS
THEN SHUTTLED BETWEEN THE NORTH AVENUE POLICE STATION AND THE
SHAKESPEARE AVENUE POLICE STATION UNTIL 1:15 P.M., AT WHICH TIME HE WAS
RETURNED TO THE NORTH AVENUE POLICE STATION AND THERE INTERROGATED
MAINLY ABOUT BICYCLE THEFTS UNTIL 6:30 OR 7:00 P.M.  HE WAS THEN TAKEN
TO THE WARREN AVENUE POLICE STATION WHERE HE SPENT THE NIGHT.  DURING
THIS TIME HE WAS FED A HAM SANDWICH AND COFFEE AT THE NORTH AVENUE
STATION AND A BOLOGNA SAUSAGE SANDWICH AT THE NORTH AVENUE STATION AND
A BOLOGNA SAUSAGE SANDWICH AT THE WARREN AVENUE STATION. 

"ON THURSDAY, AT 10:00 A.M., RECK WAS BROUGHT BACK TO THE NORTH
AVENUE STATION WHERE HE WAS INTERROGATED SOME SIX OR SEVEN HOURS ABOUT
VARIOUS CRIMES IN THE DISTRICT.  AFTERWARDS, HE WAS SENT TO THE
SHAKESPEARE STATION AND LATER THAT EVENING HE WAS TAKEN DOWNTOWN TO THE
DETECTIVE BUREAU WHERE HE WAS EXHIBITED AT A SO-CALLED 'SHOW-UP.'  THE
RECORD DOES NOT INDICATE WHERE RECK SPENT THE NIGHT.  THE RECORD SHOWS
THAT RECK WAS FED AN EGG SANDWICH AND A GLASS OF MILK ON THURSDAY BUT
APPARENTLY NOTHING ELSE. 

"THE RECORD IS SILENT AS TO WHERE RECK SPENT FRIDAY MORNING BUT IT IS
CLEAR THAT INTERROGATION WAS RESUMED SOMETIME IN THE EARLY AFTERNOON. 
FRIDAY EVENING OVER ONE HUNDRED PEOPLE CONGREGATED IN THE NORTH AVENUE
POLICE STATION WHERE RECK WAS EXHIBITED ON THE SECOND FLOOR.  SHORTLY
AFTER 7:00 P.M. RECK FAINTED AND WAS BROUGHT TO THE COOK COUNTY
HOSPITAL WHERE HE WAS EXAMINED BY AN INTERN WHO FOUND NO MARKS OR
BRUISES UPON HIS BODY AND REJECTED HIM FOR TREATMENT.  RECK WAS THEN
TAKEN DIRECTLY BACK TO THE NORTH AVENUE STATION WHERE HE WAS
IMMEDIATELY AGAIN PLACED ON EXHIBITION.  HE AGAIN BECAME SICK AND WAS
TAKEN TO AN UNFURNISHED HANDBALL ROOM, WHERE A SERGEANT AITKEN,
ASSIGNED TO THE PEACOCK MURDER INVESTIGATION, QUESTIONED HIM ABOUT THE
PEACOCK MURDER FOR A SHORT PERIOD OF TIME.  RECK AGAIN BECAME SICK AND
A DR. ABRAHAM WAS CALLED WHO LATER TESTIFIED THAT RECK WAS EXTREMELY
NERVOUS, THAT HE WAS EXPOSED AND THAT HIS SHIRT WAS UNBUTTONED AND
HANGING OUTSIDE OF HIS PANTS.  HE WAS RUBBING HIS ABDOMEN AND
COMPLAINING OF PAIN IN THAT REGION.  AFTER AN EXAMINATION OF 60 TO 90
SECONDS, DR. ABRAHAM LEFT AND RECK WAS QUESTIONED INTERMITTENTLY AND
EXHIBITED TO CIVILIANS UNTIL APPROXIMATELY 9:30 P.M. WHEN HE BECAME ILL
AND VOMITED A CONSIDERABLE AMOUNT OF BLOOD ON THE FLOOR. 

"RECK WAS AGAIN BROUGHT TO THE COOK COUNTY HOSPITAL AT 10:15 P.M. ON
FRIDAY WHERE HE WAS PLACED IN A WARD AND GIVEN INJECTIONS OF MORPHINE,
ATROPINE, AND IPECAC TWICE DURING THE EVENING.  AT ABOUT 2:00 A.M. TWO
PHYSICIANS, DOCTOR SCATLIFF AND DOCTOR DAY, WHO WERE MEMBERS OF A
CHICAGO MEDICAL SOCIETY WHICH HAD BEEN ASSISTING THE POLICE IN THE
PEACOCK MURDER CAME AT THE REQUEST OF PROSECUTOR KEARNEY TO SEE IF
THERE WERE ANY MARKS OF BRUTALITY ON RECK.  THEY FOUND THE DOOR TO
RECK'S ROOM BARRED BY A POLICE OFFICER.  AFTER SECURING PERMISSION FROM
ONE, POLICE CAPTAIN O'CONNELL, THEY WENT IN AND FOUND RECK ASLEEP AND
THEREFORE MADE ONLY A CURSORY EXAMINATION IN THE DARK WHICH REVEALED
NOTHING CONCLUSIVE.  AT 9:00 A.M. ON SATURDAY, RECK TOLD DR. ZACHARY
FELSHER OF THE COOK COUNTY HOSPITAL THAT THE POLICE HAD BEEN BEATING
HIM IN THE STOMACH.  HE ALSO TOLD DR. WEISSMAN OF THE SAME HOSPITAL
THAT HE HAD BEEN BEATEN IN THE ABDOMEN AND CHEST OVER A THREE-DAY
PERIOD.  THIS WAS THE FIRST TIME SINCE HIS ARREST SOME 70 HOURS BEFORE
THAT RECK HAD CONVERSED WITH ANY CIVILIAN OUTSIDE THE PRESENCE OF
POLICE OFFICERS.  HIS FATHER HAD ATTEMPTED TO SEE RECK ON THURSDAY AND
FRIDAY AT THE NORTH AVENUE POLICE STATION AND ON SATURDAY AT THE COOK
COUNTY HOSPITAL.  EACH TIME HE WAS REFUSED. 

"AT 9:30 A.M. ON SATURDAY, RECK WAS REMOVED FROM THE HOSPITAL IN A
WHEELCHAIR AND WAS QUESTIONED ABOUT THE PEACOCK MURDER AS SOON AS HE
WAS TRANSFERRED INTO CAPTAIN O'CONNELL'S CAR TO BE TRANSPORTED TO THE
NORTH AVENUE POLICE STATION, WHERE THE QUESTIONING CONTINUED UNTIL THE
AFTERNOON, WHEN HE WAS TAKEN TO THE STATE'S ATTORNEY'S OFFICE AT
APPROXIMATELY 2:00 P.M. 

"PREVIOUSLY TO THIS, ON FRIDAY EVENING, TWO OF THE BOYS, NASH AND
GOETH, WHO HAD BEEN ARRESTED WITH RECK, HAD CONFESSED TO THE MURDER OF
DR. PEACOCK, IMPLICATING RECK AND ONE OTHER BOY, LIVINGSTON.  AT ABOUT
3:00 A.M. ON SATURDAY, LIVINGSTON ALSO AGREED TO SIGN A CONFESSION. 
(UPON ARRAIGNMENT, LIVINGSTON PLEADED NOT GUILTY AND ALLEGED THAT HE
WAS SUBJECTED TO PHYSICAL ABUSE BY THE POLICE.) 

"ON SATURDAY AFTERNOON, RECK WAS QUESTIONED ABOUT THE WHEREABOUTS OF
THE GUN WHICH GOETH HAD TOLD POLICE THAT RECK POSSESSED.  AFTER
INTENSIVE INTERROGATION, RECK ADMITTED THAT GOETH HAD TOLD HIM OF THE
PEACOCK MURDER.  ABOUT 4:30 P.M. IN FRONT OF A GROUP OF OFFICERS AND
PROSECUTORS, RECK WAS CONFRONTED WITH NASH AND GOETH.  NASH TOLD THE
STORY WHICH BECAME HIS SIGNED CONFESSION.  RECK DENIED PARTICIPATION IN
THE CRIME.  GOETH THEN MADE THE STATEMENT THAT NASH WAS TELLING THE
TRUTH AND IMPLICATED RECK.  AT THIS POINT RECK STATED THAT HE WAS
PRESENT AT THE CRIME BUT THAT LIVINGSTON AND NOT HE STRUCK DR.
PEACOCK. 

"AT 5:55 P.M. OF THE SAME SATURDAY, MARCH 28, 1936, A JOINT
CONFESSION WAS TAKEN, AT WHICH TIME RECK WAS VERY WEAK AND SICK
LOOKING.  AT THIS POINT, RECK HAD BEEN IN CUSTODY ALMOST 80 HOURS
WITHOUT COUNSEL, WITHOUT CONTACT WITH HIS FAMILY, WITHOUT A COURT
APPEARANCE AND WITHOUT CHARGE OR BAIL.  THE TEXT OF THIS JOINT
CONFESSION REVEALS MOSTLY YES AND NO ANSWER IN THE CASE OF RECK.  THE
INTERROGATION DID NOT DEAL WITH THE GUN OR THE AUTOMOBILE USED IN THE
CRIME AND WAS SIGNED BY ALL THAT SATURDAY NIGHT. 

"ON SUNDAY, RECK WAS AGAIN INTERROGATED IN THE STATE'S ATTORNEY'S
OFFICE AND AT 4:30 P.M.  HIS INDIVIDUAL STATEMENT WAS TAKEN WHICH WAS
MORE OR LESS A REITERATION OF THE JOINT CONFESSION.  THE BOYS THEN
WASHED UP AND WERE GIVEN CLEAN CLOTHES.  THEREAFTER, IN A FORMAL
CEREMONY IN FRONT OF NUMEROUS OFFICERS AND PROSECUTORS AS WELL AS
TWELVE INVITED CIVILIANS, THE STATEMENTS WERE READ TO THE BOYS, THEY
WERE DULY CAUTIONED AND THE CONFESSIONS WERE THEN SIGNED.  THE BOYS DID
NOT KNOW THERE WERE CIVILIANS PRESENT AND WERE NOT PERMITTED COUNSEL. 
AT THIS TIME RECK HAD BEEN WITHOUT SOLID FOOD SINCE FRIDAY WHEN HE HAD
AN EGG SANDWICH.  HE WAS PLACED ON A MILK DIET BY THE DOCTOR FRIDAY
NIGHT AT THE HOSPITAL. 

"RECK WAS HELD IN CUSTODY MONDAY, TUESDAY AND WEDNESDAY, MARCH 30
THROUGH APRIL 1.  WHY, IS NOT REVEALED IN THE RECORD.  ON THURSDAY,
APRIL 2, 1936, RECK WAS ARRAIGNED IN OPEN COURT AND PLEADED NOT
GUILTY.  HE HAD NOT SEEN HIS FATHER OR OTHER RELATIVES OR ANY LAWYER
DURING THIS ENTIRE PERIOD."   (FN3) 

AS THE DISTRICT JUDGE FURTHER NOTED, THE RECORD "CARRIES AN
UNEXPRESSED IMPORT OF POLICE BRUTALITY  ...  ."  RECK TESTIFIED AT
LENGTH TO BEATINGS INFLICTED UPON HIM ON EACH OF THE FOUR DAYS HE WAS
IN POLICE CUSTODY BEFORE HE CONFESSED.  HIS TESTIMONY WAS
CORROBORATED.  THE POLICE, HOWEVER, DENIED BEATING RECK, AND, IN VIEW
OF THIS CONFLICT IN THE EVIDENCE, WE PROCEED UPON THE PREMISE, AS DID
THE DISTRICT COURT, THAT THE OFFICERS DID NOT INFLICT DELIBERATE
PHYSICAL ABUSE OR INJURY UPON RECK DURING THE PERIOD THEY HELD HIM IN
THEIR CUSTODY.  (FN4)  SEE THOMAS V. ARIZONA, 356 U.S. 390, 402-403;
STEIN V. NEW YORK, 346 U.S. 156, 183-184; ASHCRAFT V. TENNESSEE, 322
U.S. 143, 152-153; WARD V. TEXAS, 316 U.S. 547, 551-552. 

BUT IT IS HARDLY NECESSARY TO STATE THAT THE QUESTION WHETHER A
CONFESSION WAS EXTRACTED BY COERCION DOES NOT DEPEND SIMPLY UPON
WHETHER THE POLICE RESORTED TO THE CRUDE TACTIC OF DELIBERATE PHYSICAL
ABUSE.  "THE BLOOD OF THE ACCUSED IS NOT THE ONLY HALLMARK OF AN
UNCONSTITUTIONAL INQUISITION."  BLACKBURN V. ALABAMA, 361 U.S. 199,
206.  THE QUESTION IN EACH CASE IS WHETHER A DEFENDANT'S WILL WAS
OVERBORNE AT THE TIME HE CONFESSED.  CHAMBERS V. FLORIDA, 309 U.S. 227;
WATTS V. INDIANA, 338 U.S. 49, 52, 53; LEYRA V. DENNO, 347 U.S. 556,
558.  IF SO, THE CONFESSION CANNOT BE DEEMED "THE PRODUCT OF A RATIONAL
INTELLECT AND A FREE WILL," BLACKBURN, SUPRA, AT 208.  IN RESOLVING THE
ISSUE ALL THE CIRCUMSTANCES ATTENDANT UPON THE CONFESSION MUST BE TAKEN
INTO ACCOUNT.  SEE FIKES V. ALABAMA, 352 U.S. 191, 198; PAYNE V.
ARKANSAS, 356 U.S. 560, 567.  PHYSICAL MISTREATMENT IS BUT ONE SUCH
CIRCUMSTANCE, ALBEIT A CIRCUMSTANCE WHICH BY ITSELF WEIGHS HEAVILY. 
BUT OTHER CIRCUMSTANCES MAY COMBINE TO PRODUCE AN EFFECT JUST AS
IMPELLINGLY COERCIVE AS THE DELIBERATE USE OF THE THIRD DEGREE.  SUCH,
WE THINK, WERE THE UNDISPUTED CIRCUMSTANCES OF THIS CASE, AS SET OUT IN
DETAIL BY THE DISTRICT COURT. 

AT THE TIME OF HIS ARREST RECK WAS A NINETEEN-YEAR-OLD YOUTH OF
SUBNORMAL INTELLIGENCE.  HE HAD NO PRIOR CRIMINAL RECORD OR EXPERIENCE
WITH THE POLICE.  HE WAS HELD NEARLY EIGHT DAYS WITHOUT A JUDICIAL
HEARING.  FOUR OF THOSE DAYS PRECEDED HIS FIRST CONFESSION.  DURING
THAT PERIOD RECK WAS SUBJECTED EACH DAY TO SIX- OR SEVEN-HOUR STRETCHES
OF RELENTLESS AND INCESSANT INTERROGATION.  THE QUESTIONING WAS
CONDUCTED BY GROUPS OF OFFICERS.  FOR THE FIRST THREE DAYS THE
INTERROGATION RANGED OVER A WIDE VARIETY OF CRIMES.  ON THE NIGHT OF
THE THIRD DAY OF HIS DETENTION THE INTERROGATION TURNED TO THE CRIME
FOR WHICH PETITIONER STANDS CONVICTED.  DURING THIS SAME FOUR-DAY
PERIOD HE WAS SHUTTLED BACK AND FORTH BETWEEN POLICE STATIONS AND
INTERROGATION ROOMS.  IN ADDITION, RECK WAS INTERMITTENTLY PLACED ON
PUBLIC EXHIBITION IN "SHOW-UPS."  ON THE NIGHT BEFORE HIS CONFESSION,
PETITIONER BECAME ILL WHILE ON DISPLAY IN SUCH A "SHOW-UP."  HE WAS
TAKEN TO THE HOSPITAL, RETURNED TO THE POLICE STATION AND PUT BACK ON
PUBLIC DISPLAY.  WHEN HE AGAIN BECAME ILL HE WAS REMOVED FROM THE "SHOW
UP," BUT INTERROGATION IN THE WINDOWLESS "HANDBALL COURT" CONTINUED
RELENTLESSLY UNTIL HE GREW FAINT AND VOMITED BLOOD ON THE FLOOR.  ONCE
MORE HE WAS TAKEN TO THE HOSPITAL, WHERE HE SPENT THE NIGHT UNDER THE
INFLUENCE OF DRUGS.  THE NEXT MORNING HE WAS REMOVED FROM THE HOSPITAL
IN A WHEEL CHAIR, AND INTENSIVE INTERROGATION WAS IMMEDIATELY RESUMED. 
SOME EIGHT HOURS LATER RECK SIGNED HIS FIRST CONFESSION.  THE NEXT
AFTERNOON HE SIGNED A SECOND. 

DURING THE ENTIRE PERIOD PRECEDING HIS CONFESSIONS RECK WAS WITHOUT
ADEQUATE FOOD, WITHOUT COUNSEL, AND WITHOUT THE ASSISTANCE OF FAMILY OR
FRIENDS.  HE WAS, FOR ALL PRACTICAL PURPOSES, HELD INCOMMUNICADO.  HE
WAS PHYSICALLY WEAKENED AND IN INTENSE PAIN.  WE CONCLUDE THAT THIS
TOTAL COMBINATION OF CIRCUMSTANCES "IS SO INHERENTLY COERCIVE THAT ITS
VERY EXISTENCE IS IRRECONCILABLE WITH THE POSSESSION OF MENTAL FREEDOM
BY A LONE SUSPECT AGAINST WHOM ITS FULL COERCIVE FORCE IS BROUGHT TO
BEAR."  ASHCRAFT V. TENNESSEE, 322 U.S. 143, 154. 

IT IS TRUE THAT THIS CASE LACKS THE PHYSICAL BRUTALITY PRESENT IN
BROWN V. MISSISSIPPI, 297 U.S. 278, THE THREAT OF MOB VIOLENCE APPARENT
IN PAYNE V. ARKANSAS, 356 U.S. 560, THE THIRTY-SIX HOURS OF CONSECUTIVE
QUESTIONING FOUND IN ASHCRAFT V. TENNESSEE, 322 U.S. 143, THE THREATS
AGAINST DEFENDANT'S FAMILY USED IN HARRIS V. SOUTH CAROLINA, 338 U.S.
68, OR THE DECEPTION EMPLOYED IN SPANO V. NEW YORK, 360 U.S. 315, AND
LEYRA V. DENNO, 347 U.S. 556.  NOR WAS RECK'S MENTALITY APPARENTLY SO
IRRATIONAL AS THAT OF THE PETITIONER IN BLACKBURN V. ALABAMA, 361 U.S.
199.  HOWEVER, IT IS EQUALLY TRUE THAT RECK'S YOUTH, HIS SUBNORMAL
INTELLIGENCE, AND HIS LACK OF PREVIOUS EXPERIENCE WITH THE POLICE MAKE
IT IMPOSSIBLE TO EQUATE HIS POWERS OF RESISTANCE TO OVERBEARING POLICE
TACTICS WITH THOSE OF THE DEFENDANTS IN STEIN V. NEW YORK, 346 U.S.
156, OR LISENBA V. CALIFORNIA, 314 U.S. 219. 

ALTHOUGH THE PROCESS OF DECISION IN THIS AREA, AS IN MOST, REQUIRES
MORE THAN A MERE COLOR-MATCHING OF CASES, IT IS NOT INAPPROPRIATE TO
COMPARE THIS CASE WITH TURNER V. PENNSYLVANIA, 338 U.S. 62, WHERE WE
HELD A CONFESSION INADMISSIBLE ON A RECORD DISCLOSING CIRCUMSTANCES
LESS COMPELLING.  DECISION IN TURNER RESTED BASICALLY ON THREE FACTORS:
THE LENGTH OF DETENTION, THE AMOUNT AND MANNER OF INTERROGATION, AND
THE FACT THAT TURNER HAD BEEN HELD INCOMMUNICADO BY THE POLICE.  TURNER
HAD BEEN IN CUSTODY FOR FOUR NIGHTS AND FIVE DAYS BEFORE HE CONFESSED. 
HE HAD BEEN QUESTIONED INTERMITTENTLY, AS MUCH AS SIX HOURS IN A DAY,
SOMETIMES BY ONE, SOMETIMES BY SEVERAL OFFICERS.  HE HAD BEEN
INTERROGATED A TOTAL OF SOME TWENTY-THREE HOURS.  RECK WAS HELD THE
SAME LENGTH OF TIME, UNDER BASICALLY THE SAME CIRCUMSTANCES, BEFORE HIS
SECOND CONFESSION.  HE WAS HELD SOME TWENTY-FOUR HOURS LESS THAN TURNER
BEFORE HIS FIRST CONFESSION, BUT DURING THAT PERIOD HE WAS SUBJECTED TO
MORE CONCENTRATEDLY INTENSIVE INTERROGATION, IN LONGER STRETCHES.  HE
ALSO SPENT CONSIDERABLE PERIODS OF TIME ON PUBLIC DISPLAY IN "SHOW
UPS," A FACTOR NOT PRESENT IN TURNER.  IN ADDITION, RECK WAS WEAKENED
BY ILLNESS, PAIN, AND LACK OF FOOD.  FINALLY, UNLIKE TURNER, RECK MUST
BE REGARDED AS A CASE OF AT LEAST BORDERLINE MENTAL RETARDATION.  THE
RECORD HERE THUS PRESENTS A TOTALITY OF COERCIVE CIRCUMSTANCES FAR MORE
AGGRAVATED THAN THOSE WHICH DICTATED OUR DECISION IN TURNER.  SEE ALSO
JOHNSON V. PENNSYLVANIA, 340 U.S. 881; FIKES V. ALABAMA, 352 U.S. 191. 

IT CANNOT FAIRLY BE SAID ON THIS RECORD THAT "THE INWARD
CONSCIOUSNESS OF HAVING COMMITTED A MURDER AND A ROBBERY AND OF BEING
CONFRONTED WITH EVIDENCE OF GUILT WHICH PETITIONER COULD NEITHER DENY
NOR EXPLAIN SEEMS ENOUGH TO ACCOUNT FOR THE CONFESSIONS HERE."  STEIN
V. NEW YORK, 346 U.S. 156, 185.  IT IS TRUE THAT, AS IN STEIN, RECK DID
NOT CONFESS UNTIL CONFRONTED WITH THE INCRIMINATING STATEMENTS OF HIS
COMPANIONS.  BUT BEYOND THIS THE CIRCUMSTANCES IN STEIN BEAR LITTLE
RESEMBLANCE TO THOSE INVOLVED IN THIS CASE.  THE DEFENDANTS IN STEIN
WERE QUESTIONED A TOTAL OF TWELVE HOURS DURING A THIRTY-TWO-HOUR
DETENTION.  PART OF THAT TIME WAS SPENT WORKING OUT A "BARGAIN" WITH
POLICE OFFICERS.  NEITHER DEFENDANT WAS "YOUNG, SOFT, IGNORANT OR
TIMID."  STEIN, SUPRA, AT 185.  NOR WERE THEY "INEXPERIENCED IN THE
WAYS OF CRIME OR ITS DETECTION" OR "DUMB AS TO THEIR RIGHTS."  ID., AT
186.  BY CONTRAST, RECK WAS IN FACT YOUNG AND IGNORANT.  HE WAS IN FACT
INEXPERIENCED IN THE WAYS OF CRIME AND ITS DETECTION.  MOREOVER, HE WAS
SUBJECTED TO PRESSURES MUCH GREATER THAN WERE THE DEFENDANTS IN STEIN. 
HE WAS HELD INCOMMUNICADO AND QUESTIONED OVER A MUCH LONGER PERIOD.  HE
WAS PHYSICALLY ILL DURING MUCH OF THAT TIME, IN PAIN, AND WEAKENED BY
LACK OF FOOD.  CONFRONTATION WITH THE CONFESSIONS OF HIS COMPANIONS IN
THESE CIRCUMSTANCES COULD WELL HAVE BEEN THE EVENT WHICH MADE FURTHER
RESISTANCE SEEM USELESS TO RECK, WHETHER HE WAS GUILTY OR NOT.  ON THIS
RECORD, THEREFORE, THE FACT THAT HIS CONFESSION CAME HARD UPON THE
CONFESSIONS OF OTHERS WHO IMPLICATED HIM HAS LITTLE INDEPENDENT
SIGNIFICANCE. 

THE STATE HAS MADE NO EFFORT TO DISTINGUISH BETWEEN THE SATURDAY AND
SUNDAY CONFESSIONS.  NOR COULD IT PROPERLY DO SO.  THE COERCIVE
CIRCUMSTANCES PRECEDING THE FIRST CONFESSION EXISTED THROUGH SUNDAY. 
RECK REMAINED IN POLICE CUSTODY, WITHOUT A JUDICIAL HEARING.  HE WAS
SUBJECTED TO FURTHER INTERROGATION.  HE DID NOT SEE COUNSEL, FAMILY OR
FRIENDS BETWEEN SATURDAY AFTERNOON AND SUNDAY AFTERNOON.  THERE ARE NO
OTHER FACTS IN THE RECORD SUGGESTING THAT THE SUNDAY CONFESSION WAS AN
ACT INDEPENDENT OF THE CONFESSION EXTRACTED ON SATURDAY.  BOTH
CONFESSIONS ARE SUBJECT TO THE SAME INFIRMITIES.  UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT NEITHER WAS ADMISSIBLE AT RECK'S
TRIAL. 

THE PETITIONER'S DETENTION IS IN VIOLATION OF THE CONSTITUTION OF THE
UNITED STATES, AND HE IS THEREFORE ENTITLED TO BE RELEASED.  THE
JUDGMENTS OF THE COURT OF APPEALS AND THE DISTRICT COURT ARE VACATED
AND THE CASE REMANDED TO THE LATTER.  ON REMAND, THE DISTRICT COURT
SHOULD ENTER SUCH ORDERS AS ARE APPROPRIATE AND CONSISTENT WITH THIS
OPINION ALLOWING THE STATE A REASONABLE TIME IN WHICH TO RETRY THE
PETITIONER.  CF. ROGERS V. RICHMOND, 365 U.S. 534, 549; IRVIN V. DOWD,
366 U.S. 717, 729.  VACATED AND REMANDED. 

FN1  SO FAR AS THE RECORD SHOWS, THIS WAS THE FIRST TIME AFTER THE
TRIAL THAT PETITIONER RAISED THIS ISSUE. 

FN2  THE TRANSCRIPTS OF THE PRE-TRIAL SANITY PROCEEDINGS, OF THE
PROCEEDINGS AT THE HEARING ON THE ADMISSIBILITY OF THE CONFESSIONS
CONDUCTED BY THE TRIAL JUDGE OUTSIDE THE PRESENCE OF THE JURY, OF THE
TRIAL PROCEEDINGS IN THE PRESENCE OF THE JURY, AND OF THE PROCEEDINGS
AT THE POST-CONVICTION HEARING. 

FN3 THE BRIEF FACTUAL SUMMARY IN THE OPINION OF THE SUPREME COURT OF
ILLINOIS AFFIRMING THE DENIAL OF POST-CONVICTION RELIEF IS ENTIRELY
CONSISTENT WITH THESE FINDINGS: 

"PETITIONER WAS IN THE CUSTODY OF THE POLICE FOR A WEEK, DURING WHICH
TIME HE WAS FREQUENTLY ILL, FAINTED SEVERAL TIMES, VOMITED BLOOD ON THE
FLOOR OF THE POLICE STATION AND WAS TWICE TAKEN TO THE HOSPITAL ON A
STRETCHER.  DURING THAT WEEK NO FORMAL CHARGE WAS PLACED AGAINST
PETITIONER, AND HE WAS CONFINED PRACTICALLY INCOMMUNICADO."  7 ILL. 2D
261, 264, 130 N.E.2D 200, 202. 

FN4  THIS WAS ALSO THE IMPLICIT FINDING OF THE TRIAL JUDGE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

EMIL RECK AT THE AGE OF TWELVE WAS CLASSIFIED AS A "HIGH GRADE MENTAL
DEFECTIVE" (FN1) AND PLACED IN AN INSTITUTION FOR MENTAL DEFECTIVES. 
HE DROPPED OUT OF SCHOOL WHEN HE WAS SIXTEEN.  THOUGH HE WAS RETARDED
HE HAD NO CRIMINAL RECORD, NO RECORD OF DELINQUENCY.  AT THE TIME OF
HIS ARREST, CONFESSION, AND CONVICTION HE WAS NINETEEN YEARS OLD. 

HE WAS ARRESTED WEDNESDAY MORNING, MARCH 25, 1936.  THE NEXT DAY,
MARCH 26, HIS FATHER WENT TO THE POLICE ASKING WHERE HIS SON WAS AND
ASKING TO SEE HIM.  THE POLICE WOULD GIVE HIM NO INFORMATION.  ON MARCH
27 HIS FATHER CAME TO THE POLICE STATION AGAIN BUT WAS NOT ALLOWED TO
SEE HIS SON.  LATER THE FATHER TRIED TO SEE HIS SON AT THE HOSPITAL BUT
WAS DENIED ADMISSION. 

THE FATHER WAS DENIED THE RIGHT TO SEE HIS SON OVER AND AGAIN.  THE
SON WAS HELD FOR AT LEAST EIGHT FULL DAYS INCOMMUNICADO.  HE WAS
ARRAIGNED BEFORE A MAGISTRATE ON APRIL 2, 1936, ONLY AFTER HE HAD
CONFESSED. 

THE LATE PROFESSOR ALEXANDER KENNEDY OF THE UNIVERSITY OF EDINBURGH
HAS PUT INTO ILLUMINATING WORDS THE MANNER IN WHICH LONG-CONTINUED
INTERROGATION UNDER CONDITIONS OF STRESS CAN GIVE THE INTERROGATOR
EFFECTIVE COMMAND OVER THE PRISONER.  (FN2)  THE TECHNIQUES - NOW
EXPLAINED IN A VAST LITERATURE - INCLUDE (1) DISORIENTATION AND
DISILLUSION; (2) SYNTHETIC CONFLICT AND TENSION; (3) CRISIS AND
CONVERSION; (4) RATIONALIZATION AND INDOCTRINATION; (5) APOLOGETICS AND
EXPLOITATION.  (FN3) 

THE DEVICE OF "SYNTHETIC CONFLICT AND TENSION" IS SUMMARIZED AS
FOLLOWS:  (FN4) 

"PRODUCTION BY CONDITIONING METHODS OF A STATE OF PSYCHOLOGICAL
TENSION WITH ITS CONCOMITANT PHYSICAL CHANGES IN HEART, RESPIRATION,
SKIN AND OTHER ORGANS, THE FEELING BEING UNATTACHED TO ANY PARTICULAR
SET OF IDEAS.  THIS IS LATER CAUSED TO TRANSFER ITSELF TO SYNTHETIC
MENTAL CONFLICTS CREATED OUT OF CIRCUMSTANCES CHOSEN FROM THE SUBJECT'S
LIFE-HISTORY, BUT ENTIRELY IRRELEVANT TO THE REASONS FOR HIS
DETENTION.  THE OBJECT IS TO BUILD UP ANXIETY TO THE LIMITS OF
TOLERANCE SO AS TO INVOKE PATHOLOGICAL MENTAL MECHANISMS OF ESCAPE
COMPARABLE TO THOSE OF CONVERSION HYSTERIA." 

WHETHER THE POLICE USED THIS TECHNIQUE ON EMIL RECK NO ONE KNOWS.  WE
DO KNOW FROM THIS RECORD THAT EMIL RECK WAS QUITE ILL DURING HIS
DETENTION.  HE WAS SO ILL THAT HE WAS TAKEN TO A HOSPITAL
INCOMMUNICADO.  HE WAS SO ILL HE PASSED BLOOD.  WHAT ACTUALLY
TRANSPIRED NO ONE WILL KNOW.  THE RECORDS COMING BEFORE US THAT INVOLVE
THE RELATIONS BETWEEN THE POLICE AND A PRISONER DURING PERIODS OF
CONFINEMENT ARE EXTREMELY UNRELIABLE.  THE WORD OF THE POLICE IS ON THE
SIDE OF ORDERLY PROCEDURE, NONOPPRESSIVE CONDUCT, METICULOUS REGARD FOR
THE SENSIBILITIES OF THE PRISONER.  THERE IS THE WORD OF THE ACCUSED
AGAINST THE POLICE.  BUT HIS VOICE HAS LITTLE PERSUASION. 

WE DO KNOW THAT LONG DETENTION, WHILE THE PRISONER IS SHUT OFF FROM
THE OUTSIDE WORLD, IS A RECURRING PRACTICE IN THIS COUNTRY - FOR THOSE
OF LOWLY BIRTH, FOR THOSE WITHOUT FRIENDS OR STATUS.  (FN5)  WE ALSO
KNOW THAT DETENTION INCOMMUNICADO WAS THE SECRET OF THE INQUISITION AND
IS THE SECRET OF SUCCESSFUL INTERROGATION IN COMMUNIST COUNTRIES. 
PROFESSOR KENNEDY SUMMARIZED THE MATTER:  (FN6)

"FROM THE HISTORY OF THE INQUISITION WE LEARN THAT CERTAIN EMPIRICAL
DISCOVERIES WERE MADE AND RECOGNISED AS IMPORTANT BY A THOUGHTFUL AND
OBJECTIVE MINORITY OF THOSE CONCERNED.  THE FIRST WAS THAT IF A
PRISONER WERE ONCE INDUCED TO GIVE A DETAILED HISTORY OF HIS PAST AND
TO DISCUSS IT WITH HIS INTERROGATORS IN THE ABSENCE OF THREAT OR
PERSUASION OR EVEN OF EVIDENCE OF INTEREST, HE MIGHT AFTER AN EMOTIONAL
CRISIS RECANT AND CONFESS HIS HERESIES.  THE SECOND DISCOVERY WAS THAT
TRUE AND LASTING CONVERSION COULD NEVER BE PRODUCED BY THE THREAT OF
PHYSICAL TORTURE.  TORTURE NOT INFREQUENTLY HAD THE OPPOSITE EFFECT AND
INDUCED A NEGATIVE MENTAL STATE IN WHICH THE PRISONER COULD NO LONGER
FEEL PAIN BUT COULD ACHIEVE AN ATTITUDE OF MENTAL DETACHMENT FROM HIS
CIRCUMSTANCES AND WITH IT AN IMMUNITY TO INQUISITION.  THE MOST
SURPRISING FEATURE WAS THE GENUINE ENTHUSIASM OF THOSE WHO DID RECANT. 
WHILE THESE RESULTS WERE NECESSARILY ASCRIBED AT THE TIME TO THE POWERS
OF PERSUASION OF THE INQUISADORES, IT IS EVIDENT IN RETROSPECT THAT
SOMETHING WAS HAPPENING WHICH WAS OFTEN BEYOND THEIR CONTROL.  THE SAME
FACTS COME TO LIGHT IN THE LONG HISTORY OF RUSSIAN POLITICAL
INTERROGATION.  IN THE LENINIST PERIOD, THE SUCCESS OF THE IMMENSELY
TEDIOUS METHOD OF DIDACTIC INTERROGATION THEN IN USE WAS SIMILARLY
ASCRIBED TO THE APPEAL OF MARXIST DOCTRINE TO REASON.  THE FACT IS THAT
IN CONDITIONS OF CONFINEMENT, DETAILED HISTORY-TAKING WITHOUT REFERENCE
TO INCRIMINATING TOPICS AND THE FORMING OF A PERSONAL RELATIONSHIP WITH
AN INTERROGATOR WHO SUBSCRIBES TO A SYSTEM OF POLITICAL OR RELIGIOUS
EXPLANATION, THERE MAY OCCUR AN ENDOGENOUS AND NOT ALWAYS PREDICTABLE
PROCESS OF CONVERSION TO THE IDEAS AND BELIEFS OF THE INTERROGATOR." 

TELEVISION TEACHES THAT CONFESSIONS ARE THE TOUCHSTONE OF LAW
ENFORCEMENT.  EXPERIENCE HOWEVER TEACHES THAT CONFESSIONS BORN OF LONG
DETENTION UNDER CONDITIONS OF STRESS, CONFUSION, AND ANXIETY ARE
EXTREMELY UNRELIABLE. 

PEOPLE ARRESTED BY THE POLICE MAY PRODUCE CONFESSIONS THAT COME
GUSHING FORTH AND CARRY ALL THE EARMARKS OF RELIABILITY.  BUT DETENTION
INCOMMUNICADO FOR DAYS ON END IS SO FRAUGHT WITH EVIL THAT WE SHOULD
HOLD IT TO BE INCONSISTENT WITH THE REQUIREMENTS OF THAT FREE SOCIETY
WHICH IS REFLECTED IN THE BILL OF RIGHTS.  IT IS THE MEANS WHEREBY THE
COMMANDS OF THE FIFTH AMENDMENT (WHICH I DEEM TO BE APPLICABLE TO THE
STATES) ARE CIRCUMVENTED.  IT IS TRUE THAT THE POLICE HAVE TO
INTERROGATE TO ARREST; IT IS NOT TRUE THAT THEY MAY ARREST TO
INTERROGATE.  (FN7)  I WOULD HOLD THAT ANY CONFESSION OBTAINED BY THE
POLICE WHILE THE DEFENDANT IS UNDER DETENTION IS INADMISSIBLE, UNLESS
THERE IS PROMPT ARRAIGNMENT AND UNLESS THE ACCUSED IS INFORMED OF HIS
RIGHT TO SILENCE AND ACCORDED AN OPPORTUNITY TO CONSULT COUNSEL.  THIS
JUDGMENT OF CONVICTION SHOULD THEREFORE BE REVERSED. 

FN1  AT AN INTERVIEW TAKING PLACE A FEW WEEKS AFTER HIS ARREST IN
1936, RECK KNEW THAT THE MISSISSIPPI WAS A BIG RIVER, THAT NEW YORK WAS
A BIG CITY, THAT WASHINGTON, D.C., WAS OUR CAPITAL, AND THAT HOOVER
PRECEDED ROOSEVELT.  BUT HE WAS UNABLE TO DIVIDE 25 BY 5; HE DID NOT
KNOW HOW MANY WEEKS WERE IN A YEAR, HOW MANY FEET IN A YARD, HOW MANY
QUARTS IN A GALLON, WHEN COLUMBUS DISCOVERED AMERICA, WHO THE OPPONENTS
WERE IN THE CIVIL WAR, OR THE CAPITALS OF ILLINOIS, ENGLAND, FRANCE, OR
GERMANY.    FN2  KENNEDY, THE SCIENTIFIC LESSONS OF INTERROGATION,
PROC. ROY.  INSTN.  38, NO. 170 (1960). 

FN3  ID., PP. 96-97. 

FN4  ID., P. 96.    FN5  "THE LAW, IN ITS MAJESTIC EQUALITY, FORBIDS
THE RICH AS WELL AS THE POOR TO SLEEP UNDER BRIDGES, TO BEG IN THE
STREETS, AND TO STEAL BREAD."  ANATOLE FRANCE AS QUOTED IN COURNOS, A
MODERN PLUTARCH (1928), P. 27. 

FN6  ID., P. 94. 

FN7  IN ORDINARY CIRCUMSTANCES, THE POLICE, UNDER LAW, ARE TO CONDUCT
INVESTIGATIONS OF CRIME BY INTERVIEW, AND NOT BY INTERROGATION. 
TYPICALLY, IT IS THE GRAND JURY OR A COURT, NOT THE POLICE, WHICH HAS
THE POWER TO COMPEL TESTIMONY, SUBJECT TO THE LIMITATIONS OF RELEVANCE
AND PRIVILEGE.  SEE UNITED STATES V. BUFALINO, 285 F.2D 408, 415, 416,
420.  TO ALLOW THE POLICE TO USE THEIR POWER TO ARREST AS A SUBSTITUTE
FOR THE POWER OF SUBPOENA IS, I THINK, TO STRIP THE FIFTH AMENDMENT OF
ITS MEANING. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE WHITTAKER JOINS, DISSENTING. 

TWENTY-FIVE YEARS AGO A JURY FOUND RECK GUILTY OF THE SAVAGE MURDER
OF DR. SILBER C. PEACOCK.  HIS FIRST ATTEMPT TO UPSET THAT CONVICTION
CAME NINE YEARS LATER WHEN HE SOUGHT A WRIT OF ERROR TO THE SUPREME
COURT OF ILLINOIS.  IT WAS DENIED BY OPINION, PEOPLE V. RECK, 392 ILL.
311, 64 N.E. 526 (1946).  THIS COURT DENIED CERTIORARI.  RECK V.
ILLINOIS, 331 U.S. 855 (1947).  IN THE SAME YEAR THE ILLINOIS SUPREME
COURT AGAIN DENIED RECK'S APPLICATION FOR DISCHARGE.  THE NEXT YEAR THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS DID
LIKEWISE.  THEN, IN 1952, AN APPLICATION UNDER THE ILLINOIS POST
CONVICTION HEARING ACT WAS FILED TO TEST THE VALIDITY OF RECK'S 199
YEAR SENTENCE IMPOSED 16 YEARS PREVIOUSLY.  HIS APPLICATION WAS DENIED
AFTER A FULL HEARING BY THE TRIAL COURT, AND THE ILLINOIS SUPREME COURT
AFFIRMED BY A UNANIMOUS OPINION.  RECK V. PEOPLE, 7 ILL. 2D 261, 130
N.E. 2D 200 (1955).  PETITION FOR CERTIORARI WAS AGAIN DENIED, WITHOUT
PREJUDICE TO THE FILING OF APPROPRIATE PROCEEDINGS IN FEDERAL DISTRICT
COURT.  351 U.S. 942 (1956).  THIS CASE WAS THEN FILED IN THE UNITED
STATES DISTRICT COURT WHERE NO WITNESSES WERE HEARD, THE COURT BEING
SATISFIED WITH REVIEWING THE RECORD.  ONCE AGAIN RELIEF WAS DENIED, 172
F. SUPP. 734, AND THE COURT OF APPEALS AFFIRMED.  274 F.2D 250. 

TODAY - 25 YEARS AFTER HIS CONVICTION - THIS COURT OVERTURNS THE
DECISION OF THE ORIGINAL TRIAL JUDGE, THE JUDGMENT AND FINDINGS OF A
STATE TRIAL JUDGE ON POST-CONVICTION HEARING, THE UNANIMOUS OPINION OF
THE SUPREME COURT OF ILLINOIS ON THAT APPEAL, DECISIONS OF BOTH THE
SUPREME COURT OF ILLINOIS AND A FEDERAL DISTRICT JUDGE ON SEPARATE
APPLICATIONS FOR HABEAS CORPUS AND, FINALLY, THOSE OF A FEDERAL
DISTRICT JUDGE AND COURT OF APPEALS IN THIS CASE.  ALL OF THESE COURTS
ARE OVERRULED ON THE GROUND THAT "A TOTALITY OF COERCIVE CIRCUMSTANCES"
SURROUNDED RECK'S CONFESSION.  THE COURT SECOND-GUESSES THE FINDINGS OF
THE TRIAL JUDGE AND THOSE OF THE ONLY OTHER TRIAL COURT THAT HEARD AND
SAW ANY OF THE WITNESSES, BOTH OF WHICH COURTS IMPARTIALLY DECLARED THE
CONFESSION TO BE ENTIRELY VOLUNTARY. 

THE COURT HAS QUOTED AT LENGTH AND WITH APPROVAL THE SUMMARY OF THE
EVIDENCE BY THE UNITED STATES DISTRICT JUDGE.  I QUOTE IN THE MARGIN
THE FINDINGS OF THE TWO STATE JUDGES WHO SAW THE WITNESSES AND HEARD
THE EVIDENCE, ONE A FEW WEEKS AFTER THE EVENTS, (FN1) AND THE OTHER
SIXTEEN YEARS THEREAFTER  (FN2)  A CASUAL COMPARISON OF THE THREE
FINDINGS SHOWS THAT THE FEDERAL JUDGE - TO SAY THE LEAST - HAS IMPORTED
CONCLUSIONS AND ADDED EMBELLISHMENTS NOT PRESENT IN THE COLD RECORD OF
THE TRIAL.  I NEED ONLY CITE ONE EXAMPLE, WHERE HE FINDS THAT HIS "COLD
SUMMARY  ...  CARRIES AN UNEXPRESSED IMPORT OF POLICE BRUTALITY  ...
."  WHILE THE COURT OF APPEALS, AT LEAST SUB SILENTIO, OVERTURNED SOME
OF THESE FINDINGS, THE STATE DOES NOT TAKE ISSUE WITH THE BASIC FACTS
IN THE SUMMARY BUT DOES STRENUOUSLY OBJECT TO ITS CONCLUSORY FINDINGS. 
PERHAPS THE EXPLANATION FOR THESE DIFFERENCES IS BEST EXPLAINED BY THE
FEDERAL JUDGE HIMSELF, WHEN HE FINDS THAT HE HAS READ "THE RECORD  ...
IN THE LIGHT MOST FAVORABLE" TO RECK; AND FURTHER THAT "RECK'S
CONFESSION WAS TESTED BEFORE A JUDGE AND JURY WHO HAD THE OPPORTUNITY
TO OBSERVE WITNESSES AND WEIGH OTHER FRESH EVIDENCE AT FIRST HAND WHILE
I MUST MAKE MY DECISION ON THE BASIS OF A COLD AND ANCIENT RECORD,
WHICH CAN APPEAR MISLEADING." 

ALTHOUGH THE COURT SAYS THAT IT PROCEEDS "UPON THE PREMISE, AS DID
THE DISTRICT COURT, THAT THE OFFICERS DID NOT INFLICT DELIBERATE
PHYSICAL ABUSE OR INJURY UPON RECK," IT NONETHELESS FINDS THE
CONFESSION TO HAVE BEEN COERCED.  I ASSUME, THEREFORE, THAT THE COURT
BASES ITS REVERSAL ON PSYCHOLOGICAL OR MENTAL COERCION.  IN SO DOING IT
GOES FAR BEYOND THE HOLDING OF ANY OF THE PRIOR CASES OF THIS COURT. 

I SHALL NOT REPEAT THE FACTS EXCEPT TO NOTE THAT RECK WAS ARRESTED ON
WEDNESDAY; HE WAS NOT INTERROGATED CONCERNING DR. PEACOCK'S MURDER
UNTIL FRIDAY, WHEN HE IMMEDIATELY BECAME ILL, AND WAS HOSPITALIZED;
LATER THAT NIGHT ALL THREE OF HIS CONFEDERATES CONFESSED; CONFRONTED
WITH THEM ON SATURDAY - EACH ACCUSING HIM OF PARTICIPATION IN THE
MURDER - HE CONFESSED.  THERE WAS NO EVIDENCE OF PHYSICAL BRUTALITY, NO
REQUEST FOR COUNSEL, NOR, UNLIKE TURNER V. PENNSYLVANIA, 338 U.S. 62
(1949), FOR RELATIVES OR FRIENDS.  NOR DID HE ASK FOR FOOD OR MAKE ANY
INDICATION OF ANY DESIRE OR NEED THEREFOR, SHOWING, IN THE LIGHT OF THE
RECORD, NOTHING MORE THAN THE LACK OF INTEREST IN FOOD OF ONE WHO HAD
SUFFERED FROM STOMACH ULCERS FOR YEARS.  HOW THE COURT CAN NOW - 25
YEARS LATER - FIND ON THIS "COLD" RECORD THAT THESE CIRCUMSTANCES
AMOUNTED TO MENTAL OR PSYCHOLOGICAL COERCION IS BEYOND MY
COMPREHENSION.  I AGREE WITH THE SCORE OF JUDGES WHO HAVE DECIDED TO
THE CONTRARY. 

SINCE MENTAL COERCION IS THE KEYSTONE OF ITS RATIONALE, THE COURT
PROPERLY SETS TO ONE SIDE THE CASES INVOLVING PHYSICAL BRUTALITY; E.G.,
BROWN V. MISSISSIPPI, 297 U.S. 278 (1936).  WHILE THEY DEALT WITH
FACTORS BEARING UPON THE MENTAL STATE OF THE DEFENDANTS, THE COURT
PROPERLY DISTINGUISHES CASES INVOLVING THREATS OF MOB VIOLENCE, THE
WEARING DOWN OF THE ACCUSED BY PROTRACTED QUESTIONING, THREATS AGAINST
MEMBERS OF THE DEFENDANT'S FAMILY, AND THOSE IN WHICH DECEPTION WAS
PRACTICED.  (FN3)  NOR CAN RECK BE CLASSIFIED AS A MENTAL DEFECTIVE, AS
WAS THE CASE IN BLACKBURN V. ALABAMA, 361 U.S. 199 (1960). 

THE COURT RELIES HEAVILY ON TURNER V. PENNSYLVANIA, SUPRA.  I DO NOT
AGREE THAT IT PRESENTED THIS COURT WITH "A TOTALITY OF COERCIVE
CIRCUMSTANCES" SIGNIFICANTLY LESS "AGGRAVATED" THAN THE SITUATION
PRESENTED HERE.  IN TURNER THE COURT REVIEWED THE PENNSYLVANIA SUPREME
COURT'S AFFIRMANCE OF PETITIONER'S CONVICTION BY A JURY.  IN THE
PRESENT CASE NO CLAIM IS MADE THAT THE CODEFENDANTS' CONFESSIONS, WITH
WHICH RECK WAS CONFRONTED, WERE IN FACT NOT MADE AND DID NOT IN FACT
IMPLICATE RECK IN THE MURDER OF WHICH HE WAS CONVICTED.  IN TURNER,
HOWEVER, THE PETITIONER "WAS FALSELY TOLD THAT OTHER SUSPECTS HAD
'OPENED UP' ON HIM."  338 U.S., AT 64.  SUCH A FALSIFICATION, IN MY
JUDGMENT, PRESENTS A MUCH STRONGER CASE FOR RELIEF BECAUSE AT THE
OUTSET PENNSYLVANIA'S OFFICERS RESORTED TO TRICKERY.  MOREOVER, SUCH A
PSYCHOLOGICAL ARTIFICE TENDS TO PREY UPON THE MIND, LEADING ITS VICTIM
TO EITHER RESORT TO COUNTERCHARGES OR TO ASSUME THAT "FURTHER
RESISTANCE IS USELESS," AND ABANDONMENT OF CLAIMED INNOCENCE THE ONLY
COURSE TO FOLLOW. 

FURTHER, THE ISSUE OF VOLUNTARINESS OF THE CONFESSION IN TURNER WAS
SUBMITTED TO THE JURY, BUT THE TRIAL JUDGE REFUSED TO CHARGE "THAT IN
CONSIDERING THE VOLUNTARINESS OF THE CONFESSION THE PROLONGED
INTERROGATION SHOULD BE CONSIDERED."  AT P. 65.  AND THE APPELLATE
COURT CONSIDERED IT AN INDIFFERENT CIRCUMSTANCE THAT "A CONVICTED
MURDERER" WAS HELD FIVE DAYS IN JAIL.  358 PA. 350, 356, 58 A.2D 61,
64.  FINALLY, IN TURNER THE "SUPREME COURT OF PENNSYLVANIA AFFIRMED THE
CONVICTION IN AN OPINION STRESSING THE PROBABLE GUILT OF THE PETITIONER
AND ASSUMING THAT THE ALTERNATIVES BEFORE IT WERE EITHER TO APPROVE THE
CONDUCT OF THE POLICE OR TO TURN THE PETITIONER 'LOOSE UPON (SOCIETY)
AFTER HE HAS CONFESSED HIS GUILT.'"  338 U.S., AT 65.  THIS COURT MIGHT
WELL HAVE DISAGREED IN THAT CASE WITH FINDINGS SO MADE, AND, WITH LESS
HESITATION THAN IS APPROPRIATE HERE, WHERE THE DETERMINATIONS OF
VOLUNTARINESS HAVE BEEN SO CONSTANT AND SO NUMEROUS, HAVE REACHED AN
OPPOSITE CONCLUSION.  IN THIS CASE WE ARE NOT CONSIDERING THE VALIDITY
OF A CONVICTION BY CERTIORARI TO THE COURT AFFIRMING THAT JUDGMENT. 
VOLUNTARINESS HAD NOT BEEN HERE INADEQUATELY TESTED BY A STANDARD WHICH
REFUSES TO TAKE ACCOUNT OF RELEVANT FACTORS.  CF. ROGERS V. RICHMOND,
365 U.S. 534 (1961).  TO THE CONTRARY, A PROPER STANDARD HAS BEEN
SUCCESSIVELY APPLIED BY AT LEAST TWO TRIAL COURTS AND SEVERAL APPELLATE
COURTS, NO ONE OF WHICH FELT ITSELF FORCED TO CHOOSE BETWEEN WHAT IT
CONSIDERED EQUALLY UNDESIRABLE RESULTS, AND WITH WHOSE CONCLUSIONS THIS
COURT MAY NOT SO LIGHTLY DISAGREE. 

SIMILARLY, IN FIKES V. ALABAMA, 352 U.S. 191, 196-197 (1957), ALSO
RELIED ON BY THE COURT, THE CONFESSION WAS WRUNG FROM AN "UNEDUCATED
NEGRO, CERTAINLY OF LOW MENTALITY, IF NOT MENTALLY ILL." FIKES "WAS A
WEAKER AND MORE SUSCEPTIBLE SUBJECT THAN THE RECORD IN THAT CASE
REVEALS TURNER TO HAVE BEEN."  UNLIKE RECK, FIKES WAS REMOVED FROM THE
LOCAL JAIL TO A STATE PRISON FAR FROM HIS HOME AND THE COURT RECOGNIZED
THAT PETITIONER'S LOCATION WAS A FACT "TO BE WEIGHED."  SO, TOO, IN
FIKES THE PETITIONER'S LAWYER WAS BARRED FROM SEEING HIM, UNLIKE THE
SITUATION HERE, WHERE NO REQUEST FOR COUNSEL WAS MADE. 

OF COURSE, I AGREE WITH THE COURT THAT CONFESSION CASES ARE NOT TO BE
RESOLVED BY COLOR-MATCHING.  COMPARISONS ARE PERHAPS UPON OCCASION
UNAVOIDABLE, AND MAY EVEN BE PROPER, AS IN A CASE "ON ALL FOURS" WHOSE
FACTS APPROACH IDENTITY WITH THOSE OF THE ONE CLAIMED APPOSITE.  I DO
NOT FIND THAT TO BE THE SITUATION HERE, HOWEVER, IN MY VIEW, THE COURT
TODAY MOVES ONTO NEW GROUND, AND DOES NOT MERELY RETREAD THE STEPS IT
TOOK IN TURNER.  IN MY JUDGMENT, NEITHER THE ELUSIVE, MEASURELESS
STANDARD OF PSYCHOLOGICAL COERCION HERETOFORE DEVELOPED IN THIS COURT
BY ACCRETION ON ALMOST AN AD HOC, CASE-BY-CASE BASIS, NOR THE
DISPOSITION MADE IN TURNER REQUIRES US TO DISAGREE WITH MORE THAN A
SCORE OF IMPARTIAL JUDGES WHO HAVE PREVIOUSLY CONSIDERED THESE SAME
FACTS.  PERHAPS, AS THESE CASES INDICATE, REASONABLE MINDS MAY DIFFER
IN THE GAUGING OF THE CUMULATIVE PSYCHOLOGICAL FACTORS UPON WHICH THE
COURT BASES ITS REVERSAL, BUT IN WHAT CASE, I ASK, HAS A COURT DEALING
WITH THE SAME EXTRINSIC FACTS, A QUARTER OF A CENTURY AFTER CONVICTION,
OVERTURNED SO MANY DECISIONS BY SO MANY JUDGES, BOTH STATE AND FEDERAL,
ENTIRELY UPON PSYCHOLOGICAL GROUNDS?  WHEN HAVE THE CONCLUSIONS OF SO
MANY LEGAL MINDS BEEN FOUND TO BE SO UNREASONABLE BY SO FEW? 

CERTAINLY, I WALK ACROSS THIS SHADOWY FIELD NO MORE SURE-FOOTEDLY
THAN DO MY BROTHERS, BUT AFTER READING THE WHOLE RECORD AND THE
OPINIONS OF ALL THE COURTS THAT HAVE HEARD THE CASE I AM UNPERSUADED
THAT THE COMBINED PSYCHOLOGICAL EFFECT OF THE CIRCUMSTANCES SOMEHOW, IN
SOME WAY MADE RECK SPEAK.  THE FACT IS, AS THE COURT OF APPEALS SAID,
WHEN CONFRONTED WITH AND ACCUSED BY ALL THREE OF HIS CONFEDERATES, RECK
KNEW THE "DANCE WAS OVER AND THE TIME HAD COME TO PAY THE FIDDLER,"
QUOTING FROM MR. JUSTICE JACKSON'S OPINION FOR THE COURT IN STEIN V.
NEW YORK, 346 U.S. 156, 186 (1953). 

FN1  THE ORIGINAL TRIAL JUDGE, AFTER A HEARING ON THE ADMISSIBILITY
OF THE CONFESSION, STATED: 

"THE COURT HAS LISTENED ATTENTIVELY TO ALL OF THE TESTIMONY PRESENTED
IN SUPPORT OF THE EXHIBITS AND AGAINST THE INTRODUCTION OF THE
EXHIBITS.  THE LAW IN THIS STATE IS THAT THE BURDEN IS ON THE PEOPLE TO
ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT A CONFESSION OR WHAT
IS INTRODUCED AS A CONFESSION WAS MADE VOLUNTARILY AND FREELY.  IF
THERE WAS ANY COERCION OR PROMISE OF IMMUNITY OR REWARD FOR MAKING THE
CONFESSION, OR IF THE PERSON MAKING THE CONFESSION WAS ABUSED IN ANY
WAY EITHER BY STRIKING OR THREATENING OR ANY FORM OF MENTAL OR PHYSICAL
ABUSE, THEN THE CONFESSIONS WOULD NOT BE FREE AND VOLUNTARY
CONFESSIONS. 

"AFTER CONSIDERING ALL THE TESTIMONY INTRODUCED ON THIS PRELIMINARY
HEARING, THE COURT FINDS THAT THE CONFESSIONS ARE FREE AND VOLUNTARY;
AND THE COURT IS SATISFIED THAT THAT IS ESTABLISHED NOT ONLY BY A
GREATER WEIGHT OF THE EVIDENCE, BUT BY AN OVERWHELMING WEIGHT OF THE
EVIDENCE.  THEREFORE, THE COURT WILL ADMIT THESE CONFESSIONS.  THE
COURT HAS ADMITTED THE CONFESSIONS.  NOW, AS TO THE WEIGHT THAT SHALL
BE GIVEN TO THE CONFESSIONS, THAT IS FOR THE JURY." 

FN2  AT THE CONCLUSION OF THE POST-CONVICTION HEARING, THE JUDGE
STATED: 

"WELL, THE DEFENDANT TESTIFIED THAT HE WAS ARRESTED ON MARCH 25TH AND
THAT HE WAS TAKEN TO A HOSPITAL ON MARCH 27TH.  NOW, WITHOUT
CONSIDERING THE TESTIMONY OF THE POLICE OFFICERS AT ALL, MR. KEARNEY
TESTIFIED THAT HE WAS AN ASSISTANT STATE'S ATTORNEY AT THAT TIME AND IS
NOW PRACTICING LAW; THAT ON FRIDAY, AT ABOUT 10 P.M., HE WENT TO THE
NORTH AVENUE STATION, AFTER HAVING RECEIVED A PHONE CALL FROM CHIEF
AITKEN; THAT HE TOLD EVERYONE THERE THAT HE WAS FROM THE STATE'S
ATTORNEY'S OFFICE; THAT HE CALLED DR. SCATLIFF AND DR. DAY AND HAD THEM
GO TO THE COUNTY HOSPITAL TO EXAMINE THE PETITIONER BECAUSE THE
PETITIONER HAD COMPLAINED THAT HE WAS ILL; THAT AT THE TIME HE TOOK THE
STATEMENT OF THE PETITIONER, A MEMBER OF THE GRAND JURY WAS PRESENT AND
SEVERAL DOCTORS WERE PRESENT DURING THE TAKING OF THE STATEMENT OF THE
PETITIONER.  HE SAID THAT HE AND ASSISTANT STATE'S ATTORNEY CROWLEY,
NOW JUDGE CROWLEY, QUESTIONED RECK AND RECK GAVE THE ANSWERS.  HE SAYS
THAT HE SAW NO MARKS OR BRUISES ON RECK.  RECK AT NO TIME COMPLAINED OF
ANY BRUTALITY.  NO ONE STRUCK OR THREATENED RECK IN THE PRESENCE OF MR.
KEARNEY.  HE SAYS THAT HE FIRST SAW RECK AND THEN THE POLICE BROUGHT
HIM TO THE STATE'S ATTORNEY'S OFFICE FROM THE COUNTY HOSPITAL.  RECK
TOLD MR. KEARNEY THAT HE HAD BEEN TO THE COUNTY HOSPITAL, BUT HE DIDN'T
TELL HIM WHY.  THEN KEARNEY CALLED DR. SCATLIFF AND DR. DAY AT TWELVE
MIDNIGHT AND ASKED THEM TO GO TO THE COUNTY HOSPITAL TO SEE WHAT, IF
ANYTHING, WAS WRONG WITH RECK.  DR. SCATLIFF TESTIFIED THAT HE SAW RECK
AT THE COUNTY HOSPITAL IN THE MIDDLE OF THE NIGHT ON FRIDAY TO SATURDAY
AND THAT DR. DAY WAS WITH HIM.  THAT FIRST, HE MADE A VISUAL
EXAMINATION; THAT WHEN HE ARRIVED IN THE ROOM RECK WAS ASLEEP, BUT HE
WAS AROUSED, AND RECK WAS AKED IF HE WAS ILL AND RECK MERELY GRUNTED. 
THE DOCTOR ASKED RECK IF HE WAS IN PAIN AND RECK SAID 'NO.'  HE ASKED
RECK WHAT THE TROUBLE WAS AND RECK POINTED TO HIS STOMACH.  THE DOCTOR
THEN TESTIFIED THAT WE LOOKED HIM OVER, HE AND DR. DAY; THAT HE, DR.
SCATLIFF, FOUND NO BRUISES OR DISCOLORATIONS.  DR. SCATLIFF SAID THAT
HE PRESSED ON THE STOMACH OF THIS PETITIONER AND THE PETITIONER SAID
NOTHING.  AGAIN, ON SUNDAY, HE SAW THE PETITIONER AND THE PETITIONER
HAD NO MARKS OR BRUISES; THAT HE WAS ASKED IF HE HAD BEEN MISTREATED
AND THE PETITIONER SAID HE HAD NOT.  THE PETITIONER WAS ASKED IF HE HAD
EATEN AND THE PETITIONER SAID HE HAD EATEN.  ON CROSS-EXAMINATION HE
TESTIFIED THAT HE DID NOT EXAMINE THE PETITIONER'S STOOL OR URINE; THAT
HE PRESSED ON HIS ABDOMEN AND THERE WAS NO EVIDENCE OF PAIN; THAT HE
HAD BEEN TOLD THAT PETITIONER BLED FROM THE MOUTH, WHILE AT THE POLICE
STATION, AND HE TESTIFIED THAT BLEEDING FROM THE MOUTH COULD BE CAUSED
BY DENTAL DISORDERS, TUMORS, BY INJURIES TO THE STOMACH, THAT HE HAD
BEEN TOLD THAT DEFENDANT HAD A GASTRIC ULCER AND THAT, IN HIS OPINION,
A GASTRIC ULCER COULD CAUSE BLEEDING.  HE ALSO TESTIFIED ON RECROSS
EXAMINATION THAT A BLOW ON THE STOMACH WOULD AGGRAVATE AND CAUSE A
DORMANT ULCER TO BECOME ACTIVE AND CAUSE BLEEDING.  CAPTAIN AITKEN
TESTIFIED THAT WHILE HE WAS TALKING TO THE DEFENDANT, TO THE
PETITIONER, THE PETITIONER COMMENCED TO BLEED FROM THE MOUTH; THAT HE
ASKED THE PETITIONER WHAT THE TROUBLE WAS, AND THE PETITIONER SAID HE
HAD ULCERS; THAT THEN THE DOCTOR RECOMMENDED THAT THE PETITIONER BE
TAKEN TO THE HOSPITAL.  MR. BLAIR VARNES ALSO TESTIFIED, AN ATTORNEY,
THAT HE WAS PRESENT AT THE TAKING OF ONE OF THE STATEMENTS, AND HE SAID
HE SAW NO BRUISES ON THE PETITIONER AND THE PETITIONER MADE NO
COMPLAINT TO HIM.  I DO NOT BELIEVE THERE IS SUFFICIENT EVIDENCE BEFORE
THIS COURT TO DISTURB THE FINDING OF THE JURY." 

FN3  E.G., PAYNE V. ARKANSAS, 356 U.S. 560 (1958); ASHCRAFT V.
TENNESSEE, 322 U.S. 143 (1944); HARRIS V. SOUTH CAROLINA, 338 U.S. 68
(1949); SPANO V. NEW YORK, 360 U.S. 315 (1959). 
..END :





DEUTCH V. UNITED STATES 367 U.S. 456 


NO. 233.  ARGUED MARCH 22-23, 1961 - DECIDED JUNE 12, 1961 - 108 U.S.
APP. D.C. 143, 280 F.2D 691, REVERSED. 


SUMMONED TO TESTIFY BEFORE A SUBCOMMITTEE OF THE HOUSE OF
REPRESENTATIVES COMMITTEE ON UN-AMERICAN ACTIVITIES, WHICH WAS
INVESTIGATING COMMUNIST PARTY ACTIVITIES IN THE ALBANY, N.Y., AREA,
PETITIONER, WHO HAD NOT ATTENDED THE HEARINGS IN ALBANY AND WAS
QUESTIONED IN WASHINGTON, D.C., FREELY ANSWERED QUESTIONS ABOUT HIS OWN
COMMUNIST ACTIVITIES AT CORNELL UNIVERSITY AND ITHACA, N.Y.; BUT HE
REFUSED TO NAME PERSONS WITH WHOM HE HAD BEEN ASSOCIATED IN SUCH
ACTIVITIES THERE.  HE WAS CONVICTED OF A VIOLATION OF 2 U.S.C.  SEC.
192, WHICH MAKES IT A MISDEMEANOR FOR ANY PERSON SUMMONED AS A WITNESS
BY A CONGRESSIONAL COMMITTEE TO REFUSE TO ANSWER ANY QUESTION PERTINENT
TO THE QUESTION UNDER INQUIRY.  AT HIS TRIAL, IN AN EFFORT TO PROVE THE
PERTINENCY OF THE QUESTIONS HE REFUSED TO ANSWER, THE GOVERNMENT
OFFERED DOCUMENTARY EVIDENCE OF STATEMENTS MADE BY THE CHAIRMAN OF THE
SUBCOMMITTEE AT THE HEARINGS IN ALBANY, WHICH TENDED TO SHOW THAT THE
SUBJECT OF THOSE HEARINGS WAS COMMUNIST INFILTRATION IN THE ALBANY
AREA, PARTICULARLY IN THE FIELD OF LABOR, AND ONE WITNESS TESTIFIED
THAT PETITIONER'S HEARING WAS A CONTINUATION OF THE ALBANY HEARINGS,
THAT THE SUBJECT OF THOSE HEARINGS WAS COMMUNIST INFILTRATION IN THE
ALBANY AREA AND THAT THE TOPIC UNDER INQUIRY WAS NOT COMMUNISM EITHER
AT CORNELL OR IN EDUCATIONAL INSTITUTIONS GENERALLY.  IT ALSO
INTRODUCED TRANSCRIPTS OF THE TESTIMONY OF TWO WITNESSES AT THE ALBANY
HEARINGS WHO, IN ADDITION TO TESTIFYING ABOUT COMMUNIST INFILTRATION
INTO LABOR UNIONS IN THE ALBANY AREA, HAD BEEN LED INTO SOME TESTIMONY
ABOUT COMMUNIST ACTIVITIES BY PETITIONER AND OTHERS AT CORNELL.  HELD:
ON THE RECORD IN THIS CASE, THE GOVERNMENT FAILED TO PROVE AN ESSENTIAL
ELEMENT OF THE OFFENSE, THAT THE QUESTIONS WHICH PETITIONER REFUSED TO
ANSWER WERE PERTINENT TO THE SUBJECT UNDER INQUIRY, AND HIS CONVICTION
MUST BE SET ASIDE.  PP. 457-472. 

DEUTCH V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN WE ARE CALLED UPON TO REVIEW A CRIMINAL CONVICTION FOR
REFUSAL TO ANSWER QUESTIONS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON
UN-AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES.  (FN1)  SEE
QUINN V. UNITED STATES, 349 U.S. 155; EMSPAK V. UNITED STATES, 349 U.S.
190; WATKINS V. UNITED STATES, 354 U.S. 178; BARENBLATT V. UNITED
STATES, 360 U.S. 109; WILKINSON V. UNITED STATES, 365 U.S. 399; BRADEN
V. UNITED STATES, 365 U.S. 431.  THE PETITIONER WAS BROUGHT TO TRIAL IN
THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UPON AN INDICTMENT
WHICH CHARGED THAT HE HAD VIOLATED 2 U.S.C. SEC. 192 BY REFUSING TO
ANSWER FIVE QUESTIONS "WHICH WERE PERTINENT TO THE QUESTION THEN UNDER
INQUIRY" BY THE SUBCOMMITTEE.  HE WAIVED A JURY AND WAS CONVICTED UPON
FOUR OF THE FIVE COUNTS OF THE INDICTMENT.  THE JUDGMENT WAS AFFIRMED
BY THE COURT OF APPEALS, 108 U.S. APP. D.C. 143, 280 F.2D 691, AND WE
BROUGHT THE CASE HERE BECAUSE OF DOUBT AS TO THE VALIDITY OF THE
CONVICTION IN THE LIGHT OF OUR PREVIOUS DECISIONS.  (FN2)  364 U.S.
812.  A CAREFUL REVIEW OF THE TRIAL RECORD CONVINCES US THAT THE
DISTRICT COURT SHOULD HAVE ORDERED AN ACQUITTAL. 

AT THE TRIAL THE GOVERNMENT'S CASE CONSISTED LARGELY OF DOCUMENTARY
EVIDENCE.  THAT EVIDENCE SHOWED THAT A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON UN-AMERICAN ACTIVITIES CONDUCTED HEARINGS IN ALBANY, NEW
YORK, IN JULY OF 1953, AND AGAIN IN EARLY APRIL OF 1954.  THE
PETITIONER WAS NOT PRESENT ON EITHER OCCASION.  HE WAS SUBPOENAED TO
APPEAR BEFORE THE SUBCOMMITTEE IN ALBANY ON APRIL 9, 1954, BUT, AT THE
REQUEST OF HIS COUNSEL, IT WAS AGREED THAT HE SHOULD APPEAR INSTEAD
BEFORE THE SUBCOMMITTEE THREE DAYS LATER IN THE OLD HOUSE OFFICE
BUILDING IN WASHINGTON, D.C. 

HE APPEARED THERE ON THE APPOINTED DAY, ACCOMPANIED BY COUNSEL, AND
WITHOUT FURTHER ADO HIS INTERROGATION BEGAN.  THE PETITIONER FREELY
ANSWERED ALL PRELIMINARY QUESTIONS, REVEALING THAT HE WAS THEN TWENTY
FOUR YEARS OLD AND A GRADUATE STUDENT AT THE UNIVERSITY OF
PENNSYLVANIA.  HE STATED THAT HIS EARLY EDUCATION HAD BEEN IN THE
PUBLIC SCHOOLS OF BROOKLYN, NEW YORK, FROM WHERE HE HAD GONE TO CORNELL
UNIVERSITY IN 1947 FOR FOUR YEARS AS AN UNDERGRADUATE AND TWO
ADDITIONAL YEARS AS A GRADUATE STUDENT. 

THE SUBCOMMITTEE'S COUNSEL THEN MADE THE FOLLOWING STATEMENT: 

"MR. DEUTCH, DURING HEARINGS AT ALBANY LAST WEEK, THE COMMITTEE HEARD
TESTIMONY REGARDING THE EXISTENCE OF A COMMUNIST PARTY GROUP OR CELL
OPERATING AMONG UNDERGRADUATES AT CORNELL UNIVERSITY, AMONG CERTAIN
GRADUATES AT CORNELL AND IN THE CITY OF ITHACA. 

"IN CONNECTION WITH THAT TESTIMONY, THE COMMITTEE WAS INFORMED THAT
YOU WERE A MEMBER OF ONE OR MORE OF THOSE GROUPS.  IF SO, I WOULD LIKE
TO ASK YOU CERTAIN MATTERS RELATING TO YOUR ACTIVITY THERE. 

"WERE YOU A MEMBER OF A GROUP OF THE COMMUNIST PARTY AT CORNELL?" 

THE PETITIONER ANSWERED, "UNDER PROTEST," THAT HE HAD INDEED BEEN A
MEMBER OF THE COMMUNIST PARTY WHILE AT CORNELL.  (FN3)  HE THEN
TESTIFIED FREELY AND WITHOUT FURTHER OBJECTION AS TO HIS OWN ACTIVITIES
AND ASSOCIATIONS.  HE STATED THAT "FROM THE AGE OF 13 OR 14 I HAD READ
MANY BOOKS ON MARXISM AND AT THAT TIME WAS VERY MUCH IMPRESSED WITH
TRYING TO SOLVE CERTAIN OF THE INJUSTICES WE HAVE NOWADAYS."  HE SAID
THAT WHEN HE GOT TO COLLEGE "I FELT IF I HAD IDEAS I SHOULDN'T BE HALF
PREGNANT ABOUT THEM, SO WHEN I CAME TO COLLEGE I WAS APPROACHED AND
JOINED."  HE STATED THAT THE APPROACH TO JOIN THE PARTY HAD BEEN MADE
BY A STUDENT. 

AS TO THE GENERAL NATURE OF HIS COMMUNIST PARTY ACTIVITIES AT
CORNELL, HE SAID "ABOUT ALL THAT HAPPENED WERE BULL SESSIONS ON
MARXISM, AND SOME ACTIVITIES LIKE GIVING OUT A LEAFLET OR TWO.  THE
PEOPLE I MET DIDN'T ADVOCATE THE OVERTHROWING OF THE GOVERNMENT BY
FORCE AND VIOLENCE, AND IF THEY HAD, I WOULDN'T HAVE ALLOWED IT."  HE
TESTIFIED THAT HE HAD KNOWN ONE FACULTY MEMBER AT CORNELL WHO WAS A
COMMUNIST, BUT THAT THIS PERSON HAD QUIT THE PARTY.  HE STATED THAT HE
HAD ONCE RECEIVED FROM "A PERSONAL FRIEND," WHO WAS NOT CONNECTED WITH
THE CORNELL FACULTY, A $100 CONTIBUTION TO GIVE TO THE PARTY.  HE
STATED THAT HE HAD BEEN THE ONLY GRADUATE STUDENT AT CORNELL WHO WAS A
COMMUNIST, AND THAT, AS THE "HEAD" (AND LONE MEMBER) OF THE "GRADUATE
GROUP," HE HAD ATTENDED MEETINGS IN A PRIVATE HOUSE WHERE A "MAXIMUM OF
4 OR 5" PEOPLE WERE PRESENT.  MANY OF HIS ANSWERS INDICATED A LACK OF
AWARENESS OF THE DETAILS OF COMMUNIST ACTIVITIES AT CORNELL.  (FN4)
THE PETITIONER TESTIFIED THAT AS OF THE TIME OF THE HEARINGS HE WAS NO
LONGER A MEMBER OF THE COMMUNIST PARTY, BUT HE VOLUNTEERED THE
INFORMATION THAT "TO A GREAT EXTENT IT IS ONLY FAIR TO SAY I AM A
MARXIST TODAY - I DON'T WANT TO DENY THAT." 

WHILE THE PETITIONER'S ANSWERS TO THE MANY QUESTIONS PUT TO HIM ABOUT
HIS OWN ACTIVITIES AND CONDUCT WERE THUS FULLY RESPONSIVE, HE REFUSED
TO ANSWER FIVE QUESTIONS HE WAS ASKED CONCERNING OTHER PEOPLE.  HE
DECLINED TO GIVE THE NAMES OF THE FACULTY MEMBER WHO HAD BEEN A
COMMUNIST, OF THE FRIEND WHO HAD MADE THE $100 CONTRIBUTION, OF THE
STUDENT WHO HAD ORIGINALLY APPROACHED HIM ABOUT JOINING THE COMMUNIST
PARTY, AND OF THE OWNERS OF THE HOUSE WHERE THE MEETINGS HAD BEEN
HELD.  HE ALSO DECLINED TO SAY WHETHER HE WAS ACQUAINTED WITH ONE HOMER
OWEN.  FOR HIS REFUSAL TO ANSWER THESE QUESTIONS HE WAS INDICTED,
TRIED, AND CONVICTED.  (FN5) 

THE REASON WHICH THE PETITIONER GAVE THE SUBCOMMITTEE FOR HIS REFUSAL
TO ANSWER THESE QUESTIONS CAN BEST BE PUT IN HIS OWN WORDS: 

"SIR, I AM PERFECTLY WILLING TO TELL ABOUT MY OWN ACTIVITIES, BUT DO
YOU FEEL I SHOULD TRADE MY MORAL SCRUPLES BY INFORMING ON SOMEONE
ELSE?  ...  I CAN ONLY SAY THAT WHEREAS I DO NOT WANT TO BE IN CONTEMPT
OF THE COMMITTEE, I DO NOT BELIEVE I CAN ANSWER QUESTIONS ABOUT OTHER
PEOPLE, BUT ONLY ABOUT MYSELF  ...  .  I HAPPEN TO HAVE BEEN A GRADUATE
STUDENT - THE ONLY ONE THERE, AND THE ORGANIZATION IS COMPLETELY
DEFUNCT, AND THE INDIVIDUAL YOU ARE INTERESTED IN WASN'T EVEN A
PROFESSOR.  THE MAGNITUDE OF THIS IS REALLY BEYOND REASON." 

THE CHAIRMAN OF THE SUBCOMMITTEE RULED THAT IT WAS THE PETITIONER'S
DUTY NEVERTHELESS TO ANSWER THE QUESTIONS: 

"THAT DECISION DOES NOT REST WITH YOU AS TO WHETHER OR NOT THE SCOPE
OF THIS INQUIRY - AS TO WHETHER OR NOT CERTAIN INDIVIDUALS ARE
IMPORTANT NOW OR NOT.  THIS IS THE RESPONSIBILITY OF WE REPRESENTATIVES
TO DETERMINE.  THAT DETERMINATION CANNOT REST WITH YOU.  IT MAY BE VERY
TRUE THAT THE INDIVIDUAL TO WHOM YOU HAVE REFERRED IS NO LONGER A
MEMBER OF THE COMMUNIST PARTY.  HOWEVER, THAT IS A SUPPOSITION ON YOUR
PART - AND A SUPPOSITION WHICH THE COMMITTEE CANNOT ACCEPT  ...  .  I
THINK THAT IT IS ONLY FAIR TO ADVISE THE WITNESS - AGAIN ADVISE THE
WITNESS - THAT ANY SCRUPLES HE MAY HAVE DUE TO A DESIRE TO PROTECT
FRIENDS AND ACQUAINTANCES, IS NOT A LEGAL REASON FOR DECLINING TO
ANSWER THE QUESTIONS WHICH ARE NOW BEING PUT TO YOU, AND WHICH WILL BE
PUT TO YOU BY COUNSEL." 

IN AN EFFORT TO PROVE THE PERTINENCE OF THE QUESTIONS WHICH THE
PETITIONER HAD REFUSED TO ANSWER, THE GOVERNMENT OFFERED AT THE TRIAL
THE TRANSCRIPS OF THE OPENING STATEMENTS OF SUBCOMMITTEE CHAIRMAN
KEARNEY AT THE ALBANY HEARINGS IN 1953 AND 1954 AND OF SUBCOMMITTEE
CHAIRMAN VELDE AT A HEARING IN CHICAGO IN 1954, AS WELL AS AN
ADDITIONAL PORTION OF THE TRANSCRIPT OF THE 1954 ALBANY HEARING.  ONE
WITNESS, THE COUNSEL FOR THE COMMITTEE ON UN-AMERICAN ACTIVITIES,
TESTIFIED.  A REVIEW OF THIS EVIDENCE CONVINCES US THAT THE GOVERNMENT
FAILED TO PROVE THE CHARGE IN THE INDICTMENT THAT THE QUESTIONS WHICH
THE PETITIONER REFUSED TO ANSWER WERE "PERTINENT TO THE QUESTION THEN
UNDER INQUIRY" BY THE SUBCOMMITTEE BEFORE WHICH HE APPEARED. 

THE CHAIRMAN'S OPENING STATEMENT AT THE ALBANY HEARING IN 1953
CONSISTED LARGELY OF A PARAPHRASE OF THE COMMITTEE'S AUTHORIZING
RESOLUTION AND A GENERAL SUMMARY OF THE COMMITTEE'S PAST ACTIVITIES. 
(FN6)  THE ONLY STATEMENT OF A SPECIFIC PURPOSE WAS AS FOLLOWS: 

"THE COMMITTEE, IN ITS COURSE OF INVESTIGATION, CAME INTO POSSESSION
OF RELIABLE INFORMATION INDICATING COMMUNIST PARTY ACTIVITIES WITHIN
THE ALBANY AREA.  THE COMMITTEE DECIDED THAT THIS INFORMATION WAS OF
SUCH A CHARACER AS TO MERIT AN INVESTIGATION TO DETERMINE ITS NATURE,
EXTENT, CHARACTER, AND OBJECTS." 

AT THE OPENING OF THE ALBANY HEARINGS IN 1954 THE CHAIRMAN STATED
THAT THE SUBCOMMITTEE WOULD "RESUME THIS MORNING THE INVESTIGATION OF
COMMUNIST PARTY ACTIVITIES WITHIN THE CAPITAL AREA."  HE MADE CLEAR
THAT THE HEARINGS WERE "A CONTINUATION OF THE OPEN HEARINGS WHICH WERE
CONDUCTED IN ALBANY" IN 1953.  HE POINTED OUT THAT TESTIMONY AT THE
1953 HEARINGS HAD "RELATED TO THE EFFORTS OF THE COMMUNIST PARTY TO
INFILTRATE INDUSTRY AND OTHER SEGMENTS OF SOCIETY IN THE CAPITAL
AREA."  "THIS COMMITTEE," HE SAID, "  ...  IS INVESTIGATING COMMUNISM
WITHIN THE FIELD OF LABOR WHERE IT HAS SUBSTANTIAL EVIDENCE THAT IT
EXISTS." 

THE OPENING STATEMENT OF THE CHAIRMAN OF THE SUBCOMMITTEE WHICH HELD
HEARINGS IN CHICAGO IN 1954 IS THE SAME STATEMENT THAT WAS BEFORE THIS
COURT IN WATKINS V. UNITED STATES, 354 U.S. 178, 210.  AS WAS POINTED
OUT IN THE WATKINS OPINION, MR. VELDE "DID NO MORE THAN PARAPHRASE THE
AUTHORIZING RESOLUTION AND GIVE A VERY GENERAL SKETCH OF THE PAST
EFFORTS OF THE COMMITTEE."  (FN7)  MOREOVER, THE STATEMENT INDICATED
THAT THAT SUBCOMMITTEE HEARING WAS DIRECTED PRIMARILY TOWARDS
INVESTIGATION OF ACTIVITIES IN THE CHICAGO AREA:  "WE ARE HERE IN
CHICAGO, ILL., REALIZING THAT THIS IS THE CENTER OF THE GREAT
MIDWESTERN AREA OF THE UNITED STATES.  IT CANNOT BE SAID THAT
SUBVERSIVE INFILTRATION HAD HAD A GREATER, NOR A LESSER SUCCESS IN
INFILTRATING THIS IMPORTANT AREA.  THE HEARINGS TODAY ARE THE
CULMINATION OF AN INVESTIGATION THAT HAS BEEN CONDUCTED BY THE
COMMITTEE'S COMPETENT STAFF AND IS A PART OF THE COMMITTEE'S INTENTION
FOR HOLDING HEARINGS IN VARIOUS PARTS OF THE COUNTRY." 

THE TRANSCRIPTS OF PART OF THE TESTIMONY OF TWO WITNESSES AT THE 1954
ALBANY HEARINGS, JOHN MARQUSEE AND EMMANUEL RICHARDSON, WERE ALSO
INTRODUCED AT THE PETITIONER'S TRIAL.  THESE TRANSCRIPTS SHOWED THAT
MARQUSEE'S TESTIMONY HAD RELATED PRIMARILY TO COMMUNIST INFILTRATION OF
A LABOR UNION IN SCHENECTADY FOR WHICH HE HAD WORKED DURING A SUMMER
VACATION IN 1948.  (FN8)  AT THAT TIME HE HAD BEEN A STUDENT IN THE NEW
YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS, WHICH, HE HAD
TESTIFIED, WAS A PART OF CORNELL UNIVERSITY.  HE HAD TOLD THE
SUBCOMMITTEE THAT HE HAD NEVER HAD ANY CONTACT WITH THE COMMUNIST PARTY
BEFORE TAKING THE LABOR UNION JOB.  THE TRANSCRIPTS SHOWED THAT HE HAD
EXPLAINED THAT HE HAD TAKEN THE JOB IN ACCORDANCE WITH THE SCHOOL'S
REQUIREMENT "THAT EVERY STUDENT SHOULD PUT FORTH HIS EFFORTS IN
SECURING A JOB DURING THE SUMMER, DURING THE INTERVENING SUMMERS OF HIS
4-YEAR PROGRAM, 1 SUMMER WITH A LABOR UNION, 1 WITH A MANAGEMENT GROUP,
IF POSSIBLE, AND 1 SUMMER WITH A NEUTRAL AGENCY, SUCH AS A MEDIATION
AGENCY OR ARBITRATION SERVICE."  THERE WAS NO MENTION OF THE CORNELL
GRADUATE SCHOOL, NOR OF THE PETITIONER, IN THE TRANSCRIPT OF MARQUSEE'S
TESTIMONY. 

THE TRANSCRIPT OF RICHARDSON'S TESTIMONY SHOWED THAT HE HAD TESTIFIED
THAT AS A STUDENT AT THE CORNELL LAW SCHOOL IN 1950 HE HAD JOINED THE
COMMUNIST PARTY AT THE REQUEST OF THE FEDERAL BUREAU OF INVESTIGATION. 
HE HAD NAMED SEVERAL PEOPLE HE HAD KNOWN AS COMMUNISTS ON THE CORNELL
CAMPUS, INCLUDING THE PETITIONER AND HOMER OWEN.  HE HAD STATED THAT
THE PETITIONER HAD KNOWN A MEMBER OF THE CORNELL FACULTY WHO WAS A
COMMUNIST PARTY MEMBER, AND THAT HE HAD ONCE RECEIVED THROUGH THE
PETITIONER A CONTRIBUTION TO THE PARTY FROM SOMEONE ELSE OF "ONE
HUNDRED AND SOME DOLLARS."  THE TRANSCRIPT SHOWED THAT RICHARDSON HAD
ALSO TESTIFIED AT LENGTH CONCERNING COMMUNIST INFILTRATION INTO A LABOR
UNION IN A PLANT IN SYRACUSE WHERE HE HAD WORKED DURING THE SUMMERS OF
1951 AND 1952. 

AFTER THESE TRANSCRIPTS HAD BEEN INTRODUCED AT THE PETITIONER'S
TRIAL, THE GOVERNMENT CALLED ITS ONLY WITNESS, FRANK S. TAVENNER, JR.,
WHO HAD BEEN THE "INTERROGATING ATTORNEY" AT THE ALBANY HEARINGS AND AT
THE PETITIONER'S HEARING BEFORE THE SUBCOMMITTEE IN WASHINGTON.  (FN9)
MR. TAVENNER EMPHASIZED THAT THE HEARING IN WASHINGTON WAS A
CONTINUATION OF THE ALBANY HEARINGS, WHICH HE CHARACTERIZED AS "A
GENERAL INVESTIGATION OF COMMUNIST PARTY ACTIVITIES IN WHAT WAS
REFERRED TO AS THE 'CAPITAL AREA.'"  UNDER INTERROGATION OF GOVERNMENT
COUNSEL, THE WITNESS EXPRESSLY DISCLAIMED THAT THE PURPOSE OF THE
WASHINGTON HEARING HAD BEEN TO INVESTIGATE COMMUNIST ACTIVITIES IN
EDUCATIONAL INSTITUTIONS.  (FN10)  HE WAS ASKED WHAT "CONNECTION WAS
THERE BETWEEN (THE SUBJECT OF THE PETITIONER'S TESTIMONY) AND THE
INVESTIGATIONS ENTITLED 'ALBANY, NEW YORK'?"  THIS QUESTION WAS NEVER
ANSWERED. 

ON THIS RECORD THE DISTRICT COURT FOUND THE SUBJECT UNDER INQUIRY TO
BE "THE INFILTRATION OF COMMUNISM INTO EDUCATIONAL AND LABOR FIELDS." 
147 F. SUPP., AT 91.  THE COURT OF APPEALS NEVER STATED WHAT IT THOUGHT
THE SUBJECT UNDER INQUIRY BY THE SUBCOMMITTEE WAS.    AS OUR CASES MAKE
CLEAR, TWO QUITE DIFFERENT ISSUES REGARDING PERTINENCY MAY BE INVOLVED
IN A PROSECUTION UNDER 2 U.S.C. SEC. 192.  ONE ISSUE REFLECTS THE
REQUIREMENT OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT THAT THE
PERTINENCY OF THE INTERROGATION TO THE TOPIC UNDER THE CONGRESSIONAL
COMMITTEE'S INQUIRY MUST BE BROUGHT HOME TO THE WITNESS AT THE TIME THE
QUESTIONS ARE PUT TO HIM.  "UNLESS THE SUBJECT MATTER HAS BEEN MADE TO
APPEAR WITH UNDISPUTABLE CLARITY, IT IS THE DUTY OF THE INVESTIGATIVE
BODY, UPON OBJECTION OF THE WITNESS ON GROUNDS OF PERTINENCY, TO STATE
FOR THE RECORD THE SUBJECT UNDER INQUIRY AT THAT TIME AND THE MANNER IN
WHICH THE PROPOUNDED QUESTIONS ARE PERTINENT THERETO."  WATKINS V.
UNITED STATES, 354 U.S., AT 214-215.  SEE BARENBLATT V. UNITED STATES,
360 U.S., AT 123-124.  THE OTHER AND DIFFERENT PERTINENCY ISSUE STEMS
FROM THE PROSECUTION'S DUTY AT THE TRIAL TO PROVE THAT THE QUESTIONS
PROPOUNDED BY THE CONGRESSIONAL COMMITTEE WERE IN FACT "PERTINENT TO
THE QUESTION UNDER INQUIRY" BY THE COMMITTEE.  "UNDENIABLY A CONVICTION
FOR CONTEMPT UNDER 2 U.S.C. SEC. 192 CANNOT STAND UNLESS THE QUESTIONS
ASKED ARE PERTINENT TO THE SUBJECT MATTER OF THE INVESTIGATION." 
BARENBLATT, SUPRA, AT 123.  "THE STATUTE DEFINES THE CRIME AS REFUSAL
TO ANSWER 'ANY QUESTION PERTINENT TO THE QUESTION UNDER INQUIRY.'  PART
OF THE STANDARD OF CRIMINALITY, THEREFORE, IS THE PERTINENCY OF THE
QUESTIONS PROPOUNDED TO THE WITNESS."  WATKINS, SUPRA, AT 208.  SEE
WILKINSON V. UNITED STATES, 365 U.S., AT 407-409, 413; BRADEN V. UNITED
STATES, 365 U.S., AT 433, 435-436; SACHER V. UNITED STATES, 356 U.S.
576, 577; SINCLAIR V. UNITED STATES, 279 U.S. 263, 296-297.  THESE TWO
BASICALLY DIFFERENT ISSUES MUST NOT BE BLURRED BY TREATING THEM AS A
SINGLE QUESTION OF "PERTINENCY." 

WITH REGARD TO THE FIRST ISSUE, IT IS EVIDENT THAT THE PETITIONER WAS
NOT MADE AWARE AT THE TIME HE WAS QUESTIONED OF THE QUESTION THEN UNDER
INQUIRY NOR OF HOW THE QUESTIONS WHICH WERE ASKED RELATED TO SUCH A
SUBJECT.  THE CHAIRMAN MADE NO OPENING STATEMENT, AND THE PETITIONER
HEARD NO OTHER WITNESSES TESTIFY.  THE RESOLUTION CREATING THE
SUBCOMMITTEE REVEALED NOTHING.  IT WAS MERELY A GENERAL RESOLUTION
AUTHORIZING THE CREATION OF A SUBCOMMITTEE TO ACT FOR THE COMMITTEE. 
COMMITTEE COUNSEL SIMPLY ADVISED THE PETITIONER THAT THE COMMITTEE HAD
PREVIOUSLY HEARD EVIDENCE REGARDING COMMUNIST ACTIVITY AT CORNELL, AND
THAT HE PROPOSED TO ASK THE PETITIONER "CERTAIN MATTERS RELATING TO
YOUR ACTIVITY THERE."  AS TO HIS OWN ACTIVITY THERE THE PETITIONER
FREELY TESTIFIED.  WHEN THE PETITIONER DECLINED TO GIVE THE NAMES OF
OTHER PEOPLE, NO CLEAR EXPLANATION OF THE TOPIC UNDER INQUIRY WAS
FORTHCOMING. 

IT IS ALSO EVIDENT, HOWEVER, THAT THE THOUGHTS WHICH THE PETITIONER
VOICED IN REFUSING TO ANSWER THE QUESTIONS ABOUT OTHER PEOPLE CAN
HARDLY BE CONSIDERED AS THE EQUIVALENT OF AN OBJECTION UPON THE GROUNDS
OF PERTINENCY.  ALTHOUGH HE DID INDICATE DOUBT AS TO THE IMPORTANCE OF
THE QUESTIONS, THE PETITIONER'S MAIN CONCERN WAS CLEARLY HIS OWN
CONSCIENTIOUS UNWILLINGNESS TO ACT AS AN INFORMER.  IT CAN HARDLY BE
CONSIDERED, THEREFORE, THAT THE OBJECTIONS WHICH THE PETITIONER MADE AT
THE TIME WERE "ADEQUATE, WITHIN THE MEANING OF WHAT WAS SAID IN
WATKINS, SUPRA, AT 214-215, TO TRIGGER WHAT WOULD HAVE BEEN THE
SUBCOMMITTEE'S RECIPROCAL OBLIGATION HAD IT BEEN FACED WITH A
PERTINENCY OBJECTION."  BARENBLATT, SUPRA, AT 124. 

WE NEED NOT PURSUE THE MATTER, HOWEVER, BECAUSE, IN ANY EVENT, IT IS
CLEAR THAT THE GOVERNMENT AT THE TRIAL FAILED TO CARRY ITS BURDEN OF
PROVING THE PERTINENCE OF THE QUESTIONS.  SEE BOWERS V. UNITED STATES,
92 U.S. APP. D.C. 79, 202 F.2D 447, 452.  THE FIRST STEP IN PROVING
THAT COMPONENT OF THE OFFENSE WAS TO SHOW THE SUBJECT OF THE
SUBCOMMITTEE'S INQUIRY.  WILKINSON V. UNITED STATES, 365 U.S., AT 407. 
AS RELATED ABOVE, THE GOVERNMENT OFFERED DOCUMENTARY EVIDENCE OF
STATEMENTS MADE BY THE CHAIRMAN OF THE SUBCOMMITTEES AT TWO HEARINGS IN
ALBANY WHICH TENDED TO SHOW THAT THOSE SUBCOMMITTEES WERE INVESTIGATING
COMMUNIST INFILTRATION IN THE ALBANY OR "CAPITAL AREA, PARTICULARLY IN
THE FIELD OF LABOR.  (FN11) THE GOVERNMENT PRESENTED ONE WITNESS WHO
TESTIFIED THAT THE PETITIONER'S HEARING WAS A CONTINUATION OF THE
ALBANY HEARINGS, AND THAT THE SUBJECT OF THOSE HEARINGS WAS COMMUNIST
INFILTRATION IN THE ALBANY AREA.  HE DISAVOWED ANY IMPLICATION THAT THE
TOPIC UNDER INQUIRY WAS COMMUNISM EITHER AT CORNELL OR IN EDUCATIONAL
INSTITUTIONS GENERALLY. 

YET THE QUESTIONS WHICH THE PETITIONER WAS CONVICTED OF REFUSING TO
ANSWER OBVIOUSLY HAD NOTHING TO DO WITH THE ALBANY AREA OR WITH
COMMUNIST INFILTRATION INTO LABOR UNIONS.  IT CAN HARDLY BE SERIOUSLY
CONTENDED THAT CORNELL UNIVERSITY IS IN THE ALBANY AREA.  INDEED, WE
MAY TAKE JUDICIAL NOTICE OF THE FACT THAT ITHACA IS MORE THAN ONE
HUNDRED AND SIXTY-FIVE MILES FROM ALBANY, AND IN AN ENTIRELY DIFFERENT
ECONOMIC AND GEOGRAPHIC AREA OF NEW YORK.  THE PETITIONER WAS ASKED
NOTHING ABOUT ALBANY OR THE ALBANY AREA.  SO FAR AS THE RECORD SHOWS,
HE KNEW NOTHING ABOUT THAT SUBJECT.  HE WAS ASKED NOTHING ABOUT LABOR
OR LABOR UNIONS.  SO FAR AS THE RECORD SHOWS, HE KNEW NOTHING ABOUT
THEM.  HE WAS ASKED NOTHING ABOUT ANY POSSIBLE CONNECTION BETWEEN
CORNELL OR ITS GRADUATE SCHOOL AND COMMUNIST INFILTRATION IN ALBANY. 
YET THE PETITIONER WAS BASICALLY A COOPERATIVE WITNESS, AND THERE IS
NOTHING IN THE RECORD TO INDICATE THAT, EXCEPT FOR GIVING THE NAMES OF
OTHERS, HE WOULD NOT HAVE FREELY ANSWERED ANY INQUIRY THE SUBCOMMITTEE
WISHED TO PURSUE WITH RESPECT TO THESE SUBJECTS.  IT IS TRUE THAT THE
TRANSCRIPT OF THE TESTIMONY OF TWO WITNESSES AT THE ALBANY HEARINGS
ESTABLISHED THAT, IN ADDITION TO TESTIFYING ABOUT COMMUNIST
INFILTRATION INTO LABOR UNIONS IN THE ALBANY AREA, THEY HAD BEEN
WILLINGLY LED INTO SOME TESTIMONY ABOUT COMMUNIST ACTIVITIES BY THE
PETITIONER AND OTHERS AT CORNELL.  BUT THAT EXCURSION CAN HARDLY
JUSTIFY A DISREGARD OF THE GOVERNMENT'S CAREFUL PROOF AT THE
PETITIONER'S TRIAL OF WHAT THE SUBJECT UNDER INQUIRY ACTUALLY WAS.  THE
PERTINENCE OF THE INTERROGATION OF THOSE TWO WITNESSES IS NOT BEFORE
US.  THE PERTINENCE OF THE PETITIONER'S INTERROGATION IS. 

IN ENACTING 2 U.S.C. SEC. 192, THE CONGRESS INVOKED THE AID OF THE
FEDERAL JUDICIAL SYSTEM TO PROTECT ITSELF FROM CONTUMACIOUS CONDUCT. 
WATKINS, SUPRA, AT 207.  "IN FULFILLMENT OF THEIR OBLIGATION UNDER THIS
STATUTE, THE COURTS MUST ACCORD TO THE DEFENDANTS EVERY RIGHT WHICH IS
GUARANTEED TO DEFENDANTS IN ALL OTHER CRIMINAL CASES."  ID., AT 208. 
"ONE OF THE RIGHTFUL BOASTS OF WESTERN CIVILIZATION IS THAT THE
(PROSECUTION) HAS THE BURDEN OF ESTABLISHING GUILT SOLELY ON THE BASIS
OF EVIDENCE PRODUCED IN COURT AND UNDER CIRCUMSTANCES ASSURING AN
ACCUSED ALL THE SAFEGUARDS OF A FAIR PROCEDURE."  IRVIN V. DOWD, 366
U.S. 717, 729 (CONCURRING OPINION).  AMONG THESE IS THE PRESUMPTION OF
THE DEFENDANT'S INNOCENCE.  SINCLAIR V. UNITED STATES, 279 U.S., AT 296
297; FLAXER V.  UNITED STATES, 358 U.S., AT 151.  IT WAS INCUMBENT UPON
THE PROSECUTION IN THIS CASE TO PROVE THAT THE PETITIONER HAD COMMITTED
THE OFFENSE FOR WHICH HE WAS INDICTED.  ONE ELEMENT OF THAT OFFENSE WAS
THE PERTINENCE OF THE SUBJECT MATTER UNDER INQUIRY OF THE QUESTIONS THE
PETITIONER REFUSED TO ANSWER.  (FN12)  WE HOLD, AS A MATTER OF LAW,
THAT THERE WAS A FAILURE OF SUCH PROOF IN THIS CASE.  SACHER V. UNITED
STATES, 356 U.S. 576; SEE SINCLAIR V. UNITED STATES, 279 U.S., AT 298
299; BRADEN V. UNITED STATES, 365 U.S., AT 436-437. 

WE DO NOT DECIDE TODAY ANY QUESTION RESPECTING THE POWER OF
LEGISLATIVE PURPOSE OF THIS SUBCOMMITTEE OF THE HOUSE UN-AMERICAN
ACTIVITIES COMMITTEE.  NOR DO WE REACH THE LARGE ISSUES STIRRED BY THE
PETITIONER'S FIRST AMENDMENT CLAIMS.  OUR DECISION IS MADE WITHIN THE
CONVENTIONAL FRAMEWORK OF THE FEDERAL CRIMINAL LAW, AND IN ACCORD WITH
ITS TRADITIONAL CONCEPTS.  IN A WORD, WE HOLD ONLY THAT THE GOVERNMENT
FAILED TO PROVE ITS CASE.  (FN13)  REVERSED. 

FN1  "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 JOINT
COMMITTEE ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO
HOUSES OF CONGRESS, 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 JAIL FOR NOT LESS THAN
ONE MONTH NOR MORE THAN TWELVE MONTHS."  2 U.S.C. SEC. 192. 

FN2  SEE, IN ADDITION TO THE CASES CITED IN THE TEXT, SUPRA:
SINCLAIR V. UNITED STATES, 279 U.S. 263; UNITED STATES V. BRYAN, 339
U.S. 323; UNITED STATES V. FLEISCHMAN, 339 U.S. 349; UNITED STATES V.
RUMLEY, 345 U.S. 41; SACHER V. UNITED STATES, 356 U.S. 576; FLAXER V.
UNITED STATES, 358 U.S. 147.  SEE ALSO MCPHAUL V. UNITED STATES, 364
U.S. 372. 

FN3  "I WILL ANSWER THAT QUESTION, BUT ONLY UNDER PROTEST. 

"I WISH TO REGISTER A CHALLENGE AS TO THE JURISDICTION OF THIS
COMMITTEE UNDER PUBLIC LAW 601, WHICH IS THE COMMITTEE'S ENABLING
LEGISLATION.  THIS QUESTION, OR ANY SIMILAR QUESTIONS INVOLVING MY
ASSOCIATIONS, PAST OR FUTURE, I AM ANSWERING, BUT ONLY UNDER PROTEST AS
TO ITS CONSTITUTIONALITY.  BUT, UNDER YOUR JURISDICTION AS STATED, I
ANSWER YES, I WAS A MEMBER OF THE COMMUNIST PARTY." 

FN4  THE FOLLOWING COLLOQUIES ARE TYPICAL: 

"MR. DOYLE:  WHO PUBLISHED THE LEAFLETS? 

"MR. DEUTCH:  I BELIEVE THE COMMUNIST PARTY PUBLISHED THEM. 

"MR. DOYLE:  WHAT COMMUNIST PARTY?  WHERE DID YOU GET THE LEAFLETS? 
FROM THE NATIONAL HEADQUARTERS? 

"MR. DEUTCH:  I DON'T BELIEVE SO.  IT WAS A LOCAL BRANCH. 

"MR. DOYLE:  WHERE WAS THE OFFICE OF THE LOCAL BRANCH FROM WHICH YOU
GOT THESE LEAFLETS? 

"MR. DEUTCH:  I DIDN'T KNOW WHERE IT WAS.  I WAS JUST ASKED TO
DISTRIBUTE THEM." 

     *         *         *         *         * 

"MR. TAVENNER:  WERE YOU EVER A MEMBER OF THE DOWNTOWN CLUB OF THE
COMMUNIST PARTY IN ITHACA? 

"MR. DEUTCH:  I DON'T BELIEVE SO. 

"MR. TAVENNER:  DID YOU ATTEND MEETINGS OF THAT GROUP? 

"MR. DEUTCH:  NO. THAT IS, I DON'T BELIEVE SO.  THE REASON I WONDER
IS BECAUSE THAT ORGANIZATION BECAME DEFUNCT SO THAT THERE WAS REALLY NO
ORGANIZATION.  DOWNTOWN WAS UPTOWN, AND THERE WERE SO FEW PEOPLE THAT I
JUST WANT TO QUALIFY THAT STATEMENT." 

     *         *         *         *         * 

"MR. SCHERER:  LET ME ASK YOU THIS QUESTION.  YOU KNEW WHERE THE
MEETINGS WERE HELD? 

"MR. DEUTCH:  I DON'T BELIEVE I KNOW EXACTLY WHERE THEY WERE.  THIS
IS BECAUSE - SINCE MR. RICHARDSON DROVE ME THERE."  (MR. RICHARDSON WAS
A LAW STUDENT AT CORNELL WHO HAD JOINED THE COMMUNIST PARTY AT THE
BEHEST OF THE FEDERAL BUREAU OF INVESTIGATION.  SEE P. 466, INFRA.) 

FN5  THE QUESTIONS, AS SET OUT IN THE FIVE COUNTS OF THE INDICTMENT,
WERE AS FOLLOWS:

                                       "COUNT ONE 

"THE COMMITTEE WAS ADVISED THAT A WITNESS BY THE NAME OF ROSS
RICHARDSON HAS STATED THAT YOU ACTED AS LIAISON BETWEEN A COMMUNIST
PARTY GROUP ON THE CAMPUS AND A MEMBER OF THE FACULTY AT CORNELL, AND
THAT YOU KNEW THE NAME OF THE MEMBER OF THAT FACULTY, WHO WAS A MEMBER
OF THE COMMUNIST PARTY.  WILL YOU TELL US WHO THAT MEMBER OF THE
FACULTY WAS? 

                    "COUNT TWO 

"WILL YOU TELL THE COMMITTEE, PLEASE, THE SOURCE OF THAT $100
CONTRIBUTION, IF IT WAS MADE? 

                                       "COUNT THREE 

"WHERE WERE THESE MEETINGS HELD? 

               "COUNT FOUR 

"WERE YOU ACQUAINTED WITH HOMER OWEN? 

                                       "COUNT FIVE 

"THE WITNESS IS DIRECTED TO GIVE THE NAME OF THE PERSON BY WHOM HE
WAS APPROACHED." 

THE PETITIONER WAS CONVICTED ON ALL BUT COUNT THREE. 

FN6  "THE COMMITTEE IS CHARGED BY THE CONGRESS OF THE UNITED STATES
WITH THE RESPONSIBILITY OF INVESTIGATING THE EXTENT, CHARACTER AND
OBJECTS OF UN-AMERICAN PROPAGANDA ACTIVITIES IN THE UNITED STATES, THE
DIFFUSION WITHIN THE UNITED STATES OF SUBVERSIVE AND UN-AMERICAN
PROPAGANDA THAT IS INSTIGATED FROM FOREIGN COUNTRIES, OR OF A DOMESTIC
ORIGIN, AND ATTACKS THE PRINCIPLES OF THE FORM OF GOVERNMENT AS
GUARANTEED BY OUR CONSTITUTION AND ALL OTHER QUESTIONS IN RELATION
THERETO THAT WILL AID CONGRESS IN ANY NECESSARY REMEDIAL LEGISLATION. 

"IT HAS BEEN FULLY ESTABLISHED BY TESTIMONY BEFORE THIS AND OTHER
CONGRESSIONAL COMMITTEES AND BEFORE THE COURTS OF OUR LAND THAT THE
COMMUNIST PARTY OF THE UNITED STATES IS PART OF AN INTERNATIONAL
CONSPIRACY, WHICH IS BEING USED AS A TOOL OR A WEAPON BY A FOREIGN
POWER TO PROMOTE ITS OWN FOREIGN POLICY AND WHICH HAS FOR ITS OBJECTIVE
THE OVERTHROW OF THE GOVERNMENTS OF ALL NON-COMMUNIST COUNTRIES,
RESORTING TO THE USE OF FORCE AND VIOLENCE IF NECESSARY.  THIS
ORGANIZATION CANNOT LIVE AND EXPAND WITHIN THE UNITED STATES EXCEPT BY
THE PROMULGATION AND DIFFUSION OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA
DESIGNED TO WIN ADHERENCE TO ITS CAUSE. 

"THE FIRST WITNESS IN THIS HEARING WILL TESTIFY REGARDING CERTAIN
ASPECTS OF THE WORLDWIDE COMMUNIST CONSPIRACY, WHICH SHOULD DEMONSTRATE
WHAT A SERIOUS MATTER IT IS TO PERMIT INDIVIDUALS WHO ARE SUBJECT TO
THE DIRECTIVES AND DISCIPLINE OF THE COMMUNIST PARTY TO BE PLACED IN
POSITIONS OF LEADERSHIP IN ANY FUNCTIONAL ORGANIZATION. 

"THE COMMITTEE, IN ITS COURSE OF INVESTIGATION, CAME INTO POSSESSION
OF RELIABLE INFORMATION INDICATING COMMUNIST PARTY ACTIVITIES WITHIN
THE ALBANY AREA.  THE COMMITTEE DECIDED THAT THIS INFORMATION WAS OF
SUCH A CHARACTER AS TO MERIT AN INVESTIGATION TO DETERMINE ITS NATURE,
EXTENT, CHARACTER, AND OBJECTS. 

"MANY WITNESSES HAVE APPEARED BEFORE THIS COMMITTEE, SITTING IN
VARIOUS PLACES THROUGHOUT THE UNITED STATES, AND HAVE REVEALED THEIR
EXPERIENCES AS FORMER COMMUNIST PARTY MEMBERS.  SUCH TESTIMONY HAS
ADDED IMMEASURABLY TO THE SUM TOTAL OF THE KNOWLEDGE, CHARACTER,
EXTENT, AND OBJECTS OF COMMUNIST ACTIVITIES IN THIS COUNTRY. 
"WITNESSES FROM HOLLYWOOD, LABOR UNIONS, THE LEGAL PROFESSION, MEDICAL
PROFESSION, AND OTHER GROUPS HAVE MADE A GREAT CONTRIBUTION TO THE
DEFENSE OF OUR COUNTRY BY DISCLOSING TO THIS COMMITTEE FACTS WITHIN
THEIR KNOWLEDGE. 

"IN THE VIEW OF THIS COMMITTEE, SUCH TESTIMONY SHOULD NOT BE HELD
AGAINST AN INDIVIDUAL WHERE IT HAS THAT CHARACTER OF TRUSTWORTHINESS
WHICH CONVINCES ONE THAT THE WITNESS HAS COMPLETELY AND FINALLY
TERMINATED COMMUNIST PARTY MEMBERSHIP AND THAT SUCH TESTIMONY HAS BEEN
GIVEN IN ALL GOOD FAITH. 

"THE COMMITTEE IS NOT CONCERNED WITH THE POLITICAL BELIEFS OR
OPINIONS OF ANY WITNESS WHO HAS BEEN CALLED BEFORE IT.  IT IS CONCERNED
ONLY WITH THE FACTS SHOWING THE EXTENT, CHARACTER, AND OBJECTS OF THE
COMMUNIST PARTY ACTIVITIES. 

"IN KEEPING WITH THE LONG-STANDING POLICY OF THIS COMMITTEE, ANY
INDIVIDUAL OR ORGANIZATION WHOSE NAME IS MENTIONED DURING THE COURSE OF
THE HEARINGS IN SUCH A MANNER AS TO ADVERSELY AFFECT THEM SHALL HAVE AN
OPPORTUNITY TO APPEAR BEFORE THE COMMITTEE FOR THE PURPOSE OF MAKING A
DENIAL OR EXPLANATION OF ANY ADVERSE REFERENCES. 

"I WOULD ALSO LIKE AT THIS TIME, BEFORE THE BEGINNING OF THESE
HEARINGS, TO MAKE THIS ANNOUNCEMENT TO THE PUBLIC:  WE ARE HERE AT THE
DISCRETION OF THE CONGRESS OF THE UNITED STATES, TRYING TO DISCHARGE A
DUTY AND OBLIGATION THAT HAS BEEN PLACED UPON US.  THE PUBLIC IS HERE
BY PERMISSION OF THE COMMITTEE AND NOT BY ANY COMPULSION.  ANY ATTEMPT
OR EFFORT ON THE PART OF ANYONE TO MAKE A DEMONSTRATION OR AUDIBLE
COMMENT IN THIS HEARING ROOM, EITHER FAVORABLY OR UNFAVORABLY, TOWARD
THE COMMITTEE'S UNDERTAKING, OR TO WHAT ANY WITNESS MAY HAVE TO SAY,
WILL NOT BE COUNTENANCED BY THE COMMITTEE.  IF SUCH CONDUCT SHOULD
OCCUR, THE OFFICERS ON DUTY WILL BE REQUESTED TO EJECT THE OFFENDERS
FROM THE HEARING ROOM." 

FN7  THE ENTIRE STATEMENT OF MR. VELDE IS SET OUT AT 354 U.S. 210
211, N. 49. 

FN8  SCHENECTADY IS SIXTEEN MILES FROM ALBANY. 

FN9  THE SUBCOMMITTEE BEFORE WHICH THE PETITIONER APPEARED, "FOR THE
PURPOSE OF TAKING THIS TESTIMONY THIS MORNING," CONSISTED OF
REPRESENTATIVE JACKSON, ACTING CHAIRMAN, AND REPRESENTATIVES SCHERER
AND DOYLE.  THE SUBCOMMITTEE WHICH HAD CONDUCTED THE HEARINGS AT ALBANY
A FEW DAYS EARLIER WAS COMPOSED OF REPRESENTATIVE KEARNEY, CHAIRMAN,
AND REPRESENTATIVES SCHERER AND WALTER. 

FN10  "Q.  HOW DOES IT HAPPEN THAT MR. DEUTCH'S TESTIMONY APPEARS IN
'EDUCATION -8' IF IT WAS A PART ACTUALLY OF 'ALBANY'? 

A. WELL, THE STAFF IN THE RELEASING OF THIS TESTIMONY AT A LATER DATE
PLACED IT FOR CONVENIENCE UNDER THE HEADING OF EDUCATION." 

FN11  WE DISREGARD THE EVIDENCE INDICATING THAT THE SUBJECT UNDER
INQUIRY WAS COMMUNIST ACTIVITIES IN THE CHICAGO AREA. 

FN12  THIS WAS HARDLY A MATTER WITHIN THE PECULIAR KNOWLEDGE OF THE
PETITIONER.  CF.  MCPHAUL V. UNITED STATES, 364 U.S. 372, 379. 

FN13  FOR A COURT OPINION SPECIFICALLY TO JOIN ISSUE WITH WHAT IS
WRITTEN IN DISSENT IS A PRACTICE ORDINARILY TO BE AVOIDED.  ONE OF THE
DISSENTING OPINIONS IN THIS CASE, HOWEVER, IS LARGELY BASED UPON WHAT
ARE ASSERTED TO BE "THE UNDISPUTED RELEVANT FACTS IN THE RECORD." 
SINCE EVERY LITIGANT IS ENTITLED TO HAVE HIS CASE REVIEWED ON THE FACTS
IN THE RECORD, IT IS APPROPRIATE TO STATE EXPLICITLY THAT: 

(1)  THE RECORD AFFIRMATIVELY SHOWS THAT NEITHER MARQUSEE NOR
RICHARDSON TESTIFIED, DIRECTLY OR INDIRECTLY, TO "PASSING OUT HANDBILLS
AT STRIKE SCENES" OR TO ANY "PLAN OF USING THE PRESTIGE AND INNOCENT
AID OF THE UNIVERSITY'S PLACEMENT SERVICE IN GETTING SUMMER JOBS WITH
LABOR UNIONS IN UPPER NEW YORK," OR ANYWHERE ELSE. 

(2) THE RECORD AFFIRMATIVELY SHOWS THAT AT NO TIME DID THE
SUBCOMMITTEE, OR ANYONE ON ITS BEHALF, "ADVISE" THE PETITIONER, OR
ANYONE ELSE, THAT THE SUBCOMMITTEE WAS INVESTIGATING THE INFILTRATION
OF COMMUNISM INTO THE "EDUCATIONAL AND LABOR FIELDS." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

THERE IS, OF COURSE, NO DOUBT THAT A SHOWING OF "PERTINENCY" IS AN
ESSENTIAL PART OF THE GOVERNMENT'S BURDEN IN A PROSECUTION UNDER 2
U.S.C. SEC. 192.  BUT THE NATURE OF THIS BURDEN MAY DIFFER, DEPENDENT
UPON WHAT TRANSPIRED AT THE CONGRESSIONAL INQUIRY GIVING RISE TO THE
PROSECUTION. 

IN A CASE WHERE THE PROSECUTION INVOLVES THE DEFENDANT'S REFUSAL TO
ANSWER A QUESTION WHOSE PERTINENCY WAS EXPLAINED TO HIM BY THE
CONGRESSIONAL COMMITTEE BEFORE WHICH HE APPEARED AS A WITNESS -
FOLLOWING HIS APPROPRIATE OBJECTION THAT THE QUESTION WAS NOT PERTINENT
TO THE MATTER "UNDER INQUIRY," SEE BARENBLATT V. UNITED STATES, 360
U.S. 109, 123-124 - THE GOVERNMENT MUST STAND OR FALL UPON THAT
EXPLANATION.  FOR IT WOULD BE OBVIOUSLY UNFAIR TO ALLOW THE GOVERNMENT
AT TRIAL TO PROVE PERTINENCY ON A DIFFERENT THEORY THAN WAS GIVEN TO
THE DEFENDANT AT THE TIME HE TESTIFIED, AND ON THE BASIS OF WHICH HE
PRESUMABLY DETERMINED THAT HE NEED NOT ANSWER THE QUESTION PUT. 

WHERE, HOWEVER, THE DEFENDANT MADE NO "PERTINENCY" OBJECTION AS A
WITNESS BEFORE THE CONGRESSIONAL COMMITTEE, THE GOVERNMENT AT TRIAL IS
LEFT FREE TO SATISFY THE REQUIREMENT OF PERTINENCY IN ANY WAY IT MAY
CHOOSE.  THE PRESENT CASE IS SUCH A ONE, FOR, AS THE COURT'S OPINION
RECOGNIZES, THE PETITIONER HERE MADE NO ADEQUATE PERTINENCY OBJECTION
BEFORE THE HOUSE UN-AMERICAN ACTIVITIES SUBCOMMITTEE. 

I DISSENT BECAUSE IN MY OPINION THE COURT'S HOLDING THAT THE
GOVERNMENT FAILED TO ESTABLISH "PERTINENCY" RESTS ON A TOO NIGGARDLY
VIEW OF BOTH THE ISSUE AND THE RECORD.  PERTINENCY, WHICH IN THE
CONTEXT OF AN INVESTIGATORY PROCEEDING IS OF COURSE A TERM OF WIDER
IMPORT THAN "RELEVANCY" IN THE CONTEXT OF A TRIAL, IS TO BE JUDGED NOT
IN TERMS OF THE IMMEDIATE PROBATIVE SIGNIFICANCE OF A PARTICULAR
QUESTION TO THE MATTER UNDER AUTHORIZED INQUIRY, BUT IN LIGHT OF ITS
TENDENCY TO ELICIT INFORMATION WHICH MIGHT BE A USEFUL LINK IN THE
INVESTIGATORY CHAIN.  SEE CARROLL V. UNITED STATES, 16 F.2D 951, 953. 
AN INVESTIGATION MUST PROCEED "STEP BY STEP."  IBID. 

PERTINENCY IS FOUND LACKING HERE BECAUSE (1) INQUIRY AS TO AFFAIRS
RELATING TO PETITIONER'S STUDENT DAYS AT CORNELL UNIVERSITY, SITUATED
AT ITHACA, N.Y., IT IS SAID, WAS NOT GERMANE TO THE SUBCOMMITTEE'S
INVESTIGATION AS TO COMMUNIST ACTIVITIES IN "THE ALBANY AREA"; AND (2)
IN ANY EVENT, SUCH INVESTIGATION, THE COURT FINDS, RELATED ONLY TO
ALLEGED COMMUNIST INFILTRATION INTO LABOR UNIONS AND NOT AS WELL TO
INFILTRATION "AT CORNELL OR IN EDUCATIONAL INSTITUTIONS GENERALLY."  I
CAN AGREE WITH NEITHER FACET OF THIS HOLDING. 

IT IS QUITE TRUE, AS THE COURT SAYS, THAT ITHACA IS SOME 165 MILES
AWAY FROM ALBANY, BUT IT SEEMS TO ME MUCH TOO REFINED TO SAY, AS A
MATTER OF LAW, THAT THE TRIAL COURT COULD NOT REASONABLY DETERMINE THAT
ITHACA WAS WITHIN THE SUBCOMMITTEE'S TERMS OF REFERENCE.  INDEED, I
THINK IT FAIR TO SUGGEST THAT IN COMMON USAGE, AT LEAST AMONG NEW
YORKERS, "ALBANY AREA" WOULD BE REGARDED AS APTLY DESCRIPTIVE OF
"UPSTATE" NEW YORK.  IN RELATION TO "PERTINENCY" THE MATTER SHOULD NOT
BE JUDGED AS IF IT WERE ONE OF TECHNICAL JURISDICTION OR VENUE. 

THE OTHER ASPECT OF THE COURT'S HOLDING SEEMS TO ME EQUALLY INFIRM. 
ACCEPTING, AS I SHALL, THE COURT'S VIEW THAT THE TRIAL RECORD SHOWS
THAT THE SUBCOMMITTEE, AT THE RELEVANT TIME, WAS INVESTIGATING ONLY
ALLEGED COMMUNIST "LABOR UNION," AND NOT "EDUCATIONAL," INFILTRATION,
IT SEEMS TO ME ABUNDANTLY CLEAR THAT THE LOWER COURTS WERE JUSTIFIED IN
CONCLUDING THAT ALL OF THE QUESTIONS WITH RESPECT TO WHICH THE
PETITIONER WAS CONVICTED* WERE PERTINENT TO THAT MATTER. 

COUNTS ONE, TWO, FOUR, AND FIVE OF THE INDICTMENT, SET FORT IN NOTE 5
OF THE COURT'S OPINION.  ANTE, P. 461. 

ONLY SHORTLY BEFORE IT EXAMINED PETITIONER, THE SUBCOMMITTEE HAD
INTERROGATED TWO WITNESSES, MARQUSEE AND RICHARDSON, WITH RESPECT TO
THEIR COMMUNIST AFFILIATIONS, THEIR SUMMER WORK WITH TWO LABOR UNIONS
IN SCHENECTADY AND IN SYRACUSE, AND COMMUNIST INFILTRATION INTO SUCH
UNIONS, ALL WHILE THEY WERE BOTH STUDENTS AT CORNELL.  ONE OF THESE
WITNESSES, RICHARDSON, HAD TESTIFIED THAT DURING THIS PERIOD HE HAD
KNOWN THE PETITIONER, AND ONE HOMER OWEN (COURT FOUR OF THE
INDICTMENT), AS COMMUNISTS ON THE CORNELL CAMPUS.  I DO NOT SEE WHY IT
SHOULD NOW BE DEEMED EITHER THAT THE SUBCOMMITTEE'S INTEREST IN
PETITIONER'S TESTIMONY WAS CONFINED TO "EDUCATIONAL INFILTRATION," OR
THAT ITS PRELIMINARY QUESTIONING OF HIM MIGHT NOT HAVE LED TO
DEVELOPING INFORMATION BEARING ON "LABOR UNION INFILTRATION," POSSIBLY
STEMMING FROM STUDENT COMMUNIST ACTIVITY ON THE CORNELL CAMPUS, HAD
FURTHER INQUIRY NOT BEEN BLOCKED BY PETITIONER'S REFUSAL TO ANSWER. 

I CANNOT AGREE THAT THE DECISION OF THIS CASE HAS BEEN MADE "WITHIN
THE CONVENTIONAL FRAMEWORK OF THE FEDERAL CRIMINAL LAW."  FOR SURELY IN
JUDGING THE PERTINENCY OF A QUESTION PUT IN THE COURSE OF AN OTHERWISE
VALID CONGRESSIONAL INQUIRY, AS THIS ONE IS RECOGNIZED TO HAVE BEEN, WE
SHOULD NOT INSIST THAT THE INQUIRING COMMITTEE FOLLOW STRICTER RULES
THAN THE COURTS THEMSELVES APPLY IN DETERMINING, FOR EXAMPLE, THE
SUFFICIENCY OF A PLEA OF SELF-INCRIMINATION UNDER THE "LINK IN THE
CHAIN" RULE, SEE, E.G., BLAU V. UNITED STATES, 340 U.S. 159, OR IN
JUDGING "MATERIALITY" IN A PERJURY CASE, SEE, E.G., CARROLL V. UNITED
STATES, SUPRA.  IN REVERSING THIS CONVICTION, I THINK THE COURT HAS
STRAYED FROM THE EVEN COURSE OF DECISION. 

I WOULD AFFIRM. 

MR. JUSTICE WHITTAKER, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

I MUST SAY, WITH ALL RESPECT, THAT I THINK THE COURT HAS GROSSLY
MISREAD THIS RECORD.  FOR, AFTER STUDYING AND ANALYZING IT, IT SEEMS
ENTIRELY CLEAR TO ME THAT NOT ONLY DID PETITIONER FAIL TO COMPLAIN OF
ANY UNCERTAINTY ABOUT THE SUBJECT UNDER INQUIRY, OR OBJECT THAT THE
QUESTIONS PUT TO HIM WERE NOT PERTINENT TO THE INQUIRY, BUT, MOREOVER,
AT LEAST THREE OF THE QUESTIONS HE REFUSED TO ANSWER WERE, ON THEIR
FACE, CLEARLY PERTINENT TO THE INQUIRY AS A MATTER OF LAW. 
DEMONSTRATION OF THESE FACTS CAN BE MADE ONLY BY CAREFULLY SETTING
FORTH IN DETAIL THE UNDISPUTED RELEVANT FACTS IN THE RECORD.  I NOW
TURN TO THAT TASK. 

ACTING UNDER THE STATUTORY COMMAND OF CONGRESS TO INVESTIGATE AND
REPORT TO IT ON THE EXTENT, CHARACTER AND OBJECTS OF "UN-AMERICAN
PROPAGANDA ACTIVITIES," THE "DIFFUSION  ...  OF SUBVERSIVE ...
PROPAGANDA," AND "ALL OTHER QUESTIONS IN RELATION THERETO THAT WOULD
AID CONGRESS IN ANY NECESSARY REMEDIAL LEGISLATION," (FN1) A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES CONDUCTED
INVESTIGATORY HEARINGS AT ALBANY, NEW YORK, ON APRIL 7, 8 AND 9, 1954,
RELATIVE TO COMMUNIST SUBVERSIVE ACTIVITIES.  AT THOSE HEARINGS
EVIDENCE WAS ADDUCED, PRINCIPALLY BY THE TESTIMONY OF A FORMER GRADUATE
STUDENT OF THE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS OF CORNELL
UNIVERSITY, ONE MARQUSEE, AND BY ONE RICHARDSON, A FORMER STUDENT IN
THE CORNELL LAW SCHOOL, THAT A COMMUNIST CELL EXISTED IN THAT
UNIVERSITY FROM 1947 THROUGH 1953.  THOSE WITNESSES TESTIFIED THAT THEY
WERE MEMBERS OF THAT CELL, AND, IN ADDITION TO HOLDING FREQUENT SECRET
MEETINGS AND OCCASIONALLY PASSING OUT HANDBILLS AT STRIKE SCENES, THE
MEMBERS OF THE CELL FORMULATED AND CARRIED OUT A PLAN OF USING THE
PRESTIGE AND INNOCENT AID OF THE UNIVERSITY'S PLACEMENT SERVICE IN
GETTING SUMMER JOBS WITH LABOR UNIONS IN UPPER NEW YORK - PARTICULARLY,
ITHACA, SCHENECTADY AND SYRACUSE - WHERE, BY FELLOW COMMUNISTS, THEY
WERE PUT IN CONTACT WITH THE LEADERS OF COMMUNIST CELLS IN THE UNIONS
AND THERE FURTHER CARRIED ON THEIR COMMUNIST ACTIVITIES.  RICHARDSON -
WHO WAS IN FACT AN EMPLOYEE OF, AND REGULARLY REPORTED TO, THE FEDERAL
BUREAU OF INVESTIGATION - TESTIFIED THAT THERE WERE AT LEAST SIX
MEMBERS OF THE CORNELL CELL AND THAT ONE OF THE MOST ACTIVE MEMBERS OF
IT WAS PETITIONER, DEUTCH, AND THAT ANOTHER WAS ONE HOMER OWEN. 
RICHARDSON FURTHER TESTIFIED THAT, IN 1952 AND 1953, DEUTCH WAS THE
LIAISON BETWEEN AN UNDISCLOSED MEMBER OF THE CORNELL FACULTY AND THAT
CELL; THAT, IN THAT PERIOD, DEUTCH COLLECTED FOR AND TURNED OVER TO THE
CELL VARIOUS CONTRIBUTIONS, INCLUDING ONE FOR $100, BUT DECLINED TO
NAME THE DONOR. 

HAVING THIS AND OTHER SIMILAR INFORMATION, THE SUBCOMMITTEE
DETERMINED TO INTERROGATE DEUTCH, AND, LOCATING HIM IN THE GRADUATE
SCHOOL OF THE UNIVERSITY OF PENNSYLVANIA IN PHILADELPHIA, IT CAUSED HIM
TO BE SUBPOENAED TO APPEAR BEFORE THE SUBCOMMITTEE AT ALBANY ON FRIDAY,
APRIL 9, 1954.  BUT, AT THE REQUEST OF PETITIONER'S COUNSEL, AND FOR
PETITIONER'S CONVENIENCE, THE SUBCOMMITTEE AGREED TO TAKE PETITIONER'S
TESTIMONY IN EXECUTIVE SESSION AT WASHINGTON, D.C., ON MONDAY, APRIL
12, INSTEAD OF AT ALBANY ON FRIDAY, APRIL 9. 

AT THE APPOINTED TIME, PETITIONER, ACCOMPANIED BY HIS COUNSEL,
APPEARED BEFORE THE SUBCOMMITTEE IN WASHINGTON AND WAS SWORN AND
INTERROGATED.  AFTER ASKING AND OBTAINING HIS NAME, PLACE AND DATE OF
BIRTH, AND HIS EDUCATIONAL BACKGROUND, THE COMMITTEE ADVISED PETITIONER
THAT THE PARTICULAR ASPECT OF COMMUNIST INFILTRATION INTO THE
EDUCATIONAL AND LABOR FIELDS TO BE INQUIRED INTO IN HIS INTERROGATION
WAS THE EXISTENCE AND NATURE OF "  ...  A COMMUNIST PARTY GROUP OR CELL
OPERATING AMONG UNDERGRADUATES  ...  (AND) GRADUATES AT CORNELL  ...
."  SPECIFICALLY, COUNSEL FOR THE COMMITTEE STATED: 

"MR. DEUTCH, DURING HEARINGS AT ALBANY LAST WEEK, THE COMMITTEE HEARD
TESTIMONY REGARDING THE EXISTENCE OF A COMMUNIST PARTY GROUP OR CELL
OPERATING AMONG UNDERGRADUATES AT CORNELL UNIVERSITY, AMONG CERTAIN
GRADUATES AT CORNELL AND IN THE CITY OF ITHACA. 

"IN CONNECTION WITH THAT TESTIMONY, THE COMMITTEE WAS INFORMED THAT
YOU WERE A MEMBER OF ONE OR MORE OF THOSE GROUPS.  IF SO, I WOULD LIKE
TO ASK YOU (ABOUT) CERTAIN MATTERS RELATING TO YOUR ACTIVITY THERE." 
THE SUBJECT UNDER INQUIRY, SO STATED, WOULD APPEAR TO HAVE BEEN THUS
MADE QUITE PLAIN.  IT APPEARS TO HAVE BEEN ENTIRELY PLAIN TO PETITIONER
AND HIS COUNSEL, AS NEITHER OF THEM THEN, OR AT ANY TIME DURING THE
HEARING, MANIFESTED ANY WANT OF UNDERSTANDING OF THE SUBJECT OR ASKED
FOR ANY FURTHER EXPLANATION OF IT. 

THEREUPON THE FOLLOWING IMMEDIATELY OCCURRED: 

"(MR. TAVENNER - COUNSEL FOR THE COMMITTEE):  WERE YOU A MEMBER OF A
GROUP OF THE COMMUNIST PARTY AT CORNELL? 

"MR. DEUTCH:  I WILL ANSWER THAT QUESTION, BUT ONLY UNDER PROTEST. 
"I WISH TO REGISTER A CHALLENGE AS TO THE JURISDICTION OF THIS
COMMITTEE UNDER PUBLIC LAW 601, WHICH IS THE COMMITTEE'S ENABLING
LEGISLATION.  THIS QUESTION, OR ANY SIMILAR QUESTIONS INVOLVING MY
ASSOCIATIONS, PAST OR FUTURE, I AM ANSWERING, BUT ONLY UNDER PROTEST AS
TO ITS CONSTITUTIONALITY.  BUT, UNDER YOUR JURISDICTION AS STATED, I
ANSWER YES, I WAS A MEMBER OF THE COMMUNIST PARTY. 

"MR. TAVENNER:  THE COMMITTEE WAS ADVISED THAT A WITNESS BY THE NAME
OF ROSS RICHARDSON HAS STATED THAT YOU ACTED AS LIAISON BETWEEN A
COMMUNIST PARTY GROUP ON THE CAMPUS AND A MEMBER OF THE FACULTY AT
CORNELL, AND THAT YOU KNEW THE NAME OF THE MEMBER OF THAT FACULTY, WHO
WAS A MEMBER OF THE COMMUNIST PARTY. 

"WILL YOU TELL US WHO THAT MEMBER OF THE FACULTY WAS? 

"MR. DEUTCH:  SIR, I AM PERFECTLY WILLING TO TELL ABOUT MY OWN
ACTIVITIES, BUT DO YOU FEEL I SHOULD TRADE MY MORAL SCRUPLES BY
INFORMING ON SOMEONE ELSE? 

     *         *          *    *         * 

"MR. JACKSON (THE ACTING CHAIRMAN OF THE SUBCOMMITTEE):  THAT IS
ENTIRELY BESIDE THE POINT.  YOU HAVE BEEN ASKED A QUESTION AND WE MUST
INSIST THAT YOU ANSWER THE QUESTION OR DECLINE TO ANSWER IT, AND YOUR
DECLINATION MUST CONSIST OF SOMETHING MORE THAN YOUR MORAL SCRUPLES. 

"MR. DEUTCH:  AS TO DETAILS OF THAT, I THINK THE WHOLE QUESTION HAS
BEEN MAGNIFIED MORE THAN IT SHOULD HAVE. 

"MR. JACKSON:  THERE IS A QUESTION PENDING AND THE CHAIR MUST INSIST
THAT YOU ANSWER THE QUESTION THAT HAS BEEN ASKED. 

"MR. DEUTCH:  I CAN ONLY SAY THAT WHEREAS I DO NOT WANT TO BE IN
CONTEMPT OF THE COMMITTEE, I DO NOT BELIEVE I CAN ANSWER QUESTIONS
ABOUT OTHER PEOPLE, BUT ONLY ABOUT MYSELF. 

"MR. JACKSON:  YOU THEREFORE REFUSE TO ANSWER THE QUESTION THAT IS
PENDING, IS THAT CORRECT? 

"MR. DEUTCH:  YES, SIR ...  ." 

PETITIONERS REFUSAL TO ANSWER THAT QUESTION RESULTED IN COUNT ONE OF
HIS SUBSEQUENT INDICTMENT. 

A COLLOQUY THEN ENSUED BETWEEN PETITIONER AND THE ACTING CHAIRMAN AND
ANOTHER MEMBER OF THE SUBCOMMITTEE, AT THE CONCLUSION OF WHICH
PETITIONER STATED:  "THE ONLY THING I AM SAYING, SIR, MY CHALLENGE IS,
IS IT CONSTITUTIONAL UNDER PUBLIC LAW 601?" 

THEREUPON THE FOLLOWING OCCURRED: 

"MR. TAVENNER:  THE COMMITTEE RECEIVED TESTIMONY FROM ROSS RICHARDSON
TO THE EFFECT THAT YOU COLLECTED CERTAIN DONATIONS FOR THE BENEFIT OF
THE COMMUNIST PARTY, AND THAT ON ONE OCCASION YOU DELIVERED TO HIM THE
SUM OF $100, WITHOUT DESIGNATING TO HIM THE SOURCE OF IT.  WILL YOU
TELL THE COMMITTEE, PLEASE, THE SOURCE OF THAT $100 CONTRIBUTION, IF IT
WAS MADE? 

"MR. DEUTCH:  NO; THIS CONTRIBUTION WAS MADE - I BELIEVE I GAVE YOU
THE REASON WHY I DECLINE TO ANSWER REGARDING NAMES, AND THIS WAS FROM A
PERSONAL FRIEND." 

IN REPLY TO THE ACTING CHAIRMAN'S DIRECTION TO ANSWER THE QUESTION,
PETITIONER STATED: 

"MR. DEUTCH:  I FEEL LIKE I CAN'T ANSWER THAT QUESTION.  I REALIZE
THERE ARE MANY PROBLEMS FACING ME, AND IT WASN'T AN EASY DECISION TO
MAKE. 

"MR. JACKSON:  THE CHAIR DIRECTS AGAIN THAT YOU ANSWER. 

"MR. DEUTCH:  I AM UNABLE TO. 

"MR. TAVENNER:  ...  I WANT TO KNOW IF YOU REFUSE TO ANSWER THE
QUESTION. 

"MR. DEUTCH:  YES, SIR." 

PETITIONER'S REFUSAL TO ANSWER THAT QUESTION RESULTED IN COUNT TWO OF
HIS SUBSEQUENT INDICTMENT. 

THE BACKGROUND OF THE QUESTION, AND THE QUESTION, THAT RESULTED IN
COUNT THREE OF THE INDICTMENT ARE OMITTED, BECAUSE THE DISTRICT COURT
DISMISSED THAT COUNT, AND IT IS NOT BEFORE US. 

PETITIONER THEN REFUSED, THOUGH DIRECTED BY THE ACTING CHAIRMAN, TO
ANSWER THE QUESTION: "WERE YOU ACQUAINTED WITH HOMER OWEN?"  AND THAT
REFUSAL RESULTED IN COUNT FOUR OF HIS SUBSEQUENT INDICTMENT. 

THEN, AFTER SAYING "  ...  SO WHEN I CAME TO COLLEGE I WAS APPROACHED
AND JOINED (THE COMMUNIST PARTY)," PETITIONER WAS ASKED AND ANSWERED AS
FOLLOWS: 

"MR. TAVENNER:  BY WHOM WERE YOU APPROACHED? 

"MR. DEUTCH:  I WAS APPROACHED BY A STUDENT.  I DON'T WISH TO GIVE
HIS NAME. 

"MR. JACKSON:  THE WITNESS IS DIRECTED TO GIVE THE NAME OF THE PERSON
BY WHOM HE WAS APPROACHED. 

"MR. DEUTCH:  I DECLINE TO GIVE THE NAME." 

PETITIONER'S REFUSAL TO ANSWER THAT QUESTION RESULTED IN COUNT FIVE
OF HIS INDICTMENT. 

THIS, I SUBMIT, IS A FAIR STATEMENT OF THE UNDISPUTED RELEVANT FACTS,
AND IT SETS FORTH LITERALLY EVERY CONTENTION, OBJECTION AND REASON
GIVEN BY PETITIONER AT THE HEARING FOR HIS REFUSAL TO ANSWER THESE
QUESTIONS.  APART FROM THE FORMAL TESTIMONY OF MR. TAVENNER AND SOME
DOCUMENTARY EXHIBITS OFFERED BY THE GOVERNMENT, THIS WAS THE EVIDENCE
THAT WAS OFFERED AND RECEIVED AT PETITIONER'S CONTEMPT TRIAL IN THE
DISTRICT COURT. 

I THINK THIS RECORD PROVIDES AN AMPLE BASIS TO SUPPORT THE DISTRICT
COURT'S FINDING THAT, IN GENERAL, "THE COMMITTEE WAS INVESTIGATING THE
INFILTRATION OF COMMUNISM INTO EDUCATIONAL AND LABOR FIELDS," 147 F.
SUPP., AT 91, BUT WHETHER OR NOT THAT WAS THE GENERAL AND ANNOUNCED
SUBJECT OF THE HEARINGS IS IMMATERIAL TO THIS CASE, BECAUSE HERE
PETITIONER WAS TOLD, NEAR THE BEGINNING OF HIS INTERROGATION AND BEFORE
THE RELEVANT QUESTIONS WERE PROPOUNDED, THAT THE SUBJECT ABOUT WHICH
THE COMMITTEE WISHED TO INTERROGATE HIM AS "THE EXISTENCE OF A
COMMUNIST PARTY GROUP OR CELL OPERATING AMONG (STUDENTS) AT CORNELL
UNIVERSITY  ...  (AND) MATTERS RELATING TO (HIS) ACTIVITY THERE."  LIKE
THE COURT OF APPEALS, I THINK THESE "QUOTED STATEMENTS MADE TO
(PETITIONER) BY THE COMMITTEE COUNSEL AND A COMMITTEE MEMBER CLEARLY
INDICATED THE OBJECT OF THE INQUIRY" OF PETITIONER - I.E., THE NATURE
AND EXTENT OF COMMUNIST INFILTRATION AT CORNELL - "AND THE PERTINENCY
OF THE QUESTIONS (TO THAT SUBJECT)."  108 U.S. APP. D.C., AT 148, 280
F.2D, AT 696. 

LIKEWISE, IT SEEMS ENTIRELY CLEAR TO ME, AS IT DID TO THE COURT OF
APPEALS, THAT NOT ONLY DID PETITIONER FAIL TO OJECT TO ANY QUESTION ON
THE GROUND OF PERTINENCY BUT "NEVER ONCE DID HE INDICATE UNAWARENESS OF
THE PURPOSE OF THE HEARING, OR DOUBTS AS TO THE PERTINENCY OF THE
QUESTIONS."  108 U.S. APP. D.C., AT 146, 280 F.2D, AT 694.  IT ALSO
SEEMS PLAIN TO ME, AS IT DID TO THE COURT OF APPEALS, THAT PETITIONER
"DECLINED TO ANSWER THE QUESTIONS, NOT ON THE GROUND OF PERTINENCY (BUT
RATHER ON THE GROUND) THAT IT WAS AGAINST HIS 'MORAL SCRUPLES' TO
ANSWER QUESTIONS ABOUT OTHER PEOPLE."  108 U.S. APP. D.C., AT 147, 280
F.2D, AT 695.  "NOR," AS SAID BY THE COURT OF APPEALS, "DID HE CLAIM
THAT HE DID NOT UNDERSTAND HOW THE QUESTIONS RELATED TO THE SUBJECT
UNDER INQUIRY, OR WHAT THAT SUBJECT WAS.  ON THE CONTRARY, IT IS QUITE
OBVIOUS THAT HE RECOGNIZED THAT THE QUESTIONS WERE PERTINENT TO THE
SUBJECT UNDER INQUIRY, AND HE BASED HIS REFUSAL TO ANSWER SOLELY AND
SIMPLY ON THE FACT THAT HE DID NOT WISH TO GIVE THE NAMES OF OTHER
PERSONS  ...  (AND) NOT UNTIL THE TRIAL IN THE DISTRICT COURT, IN WHAT
APPEARS TO BE AFTERTHOUGHT, DID APPELLANT RAISE THE QUESTIONS OF
PERTINENCY AND UNAWARENESS OF THE SUBJECT MATTER OF THE INQUIRY."  108
U.S. APP. D.C., AT 147-148, 280 F.2D, AT 695-696.  IT THUS SEEMS CLEAR
TO ME, AS IT DID TO THE COURT OF APPEALS, THAT "THE GOVERNMENT HAS
PROVED BEYOND A REASONABLE DOUBT THAT THE SUBJECT UNDER INQUIRY AND THE
PERTINENCY OF THE QUESTIONS WERE MADE TO APPEAR AT THE COMMITTEE
HEARING WITH 'UNDISPUTABLE CLARITY.'"  108 U.S. APP. D.C., AT 147, 280
F.2D, AT 695. 

YET THIS COURT NOW REVERSES THE FINDINGS AND JUDGMENTS OF THE TWO
COURTS BELOW UPON THE SOLE GROUND "THAT THE GOVERNMENT AT THE TRIAL
FAILED TO CARRY ITS BURDEN OF PROVING THE PERTINENCE OF THE
QUESTIONS."  I AM COMPELLED BY THE EVIDENCE, RESPECTFULLY, TO
DISAGREE. 

HERE, WHETHER OR NOT PETITIONER WAS TOLD OR KNEW THAT THE GENERAL
SUBJECT OF THE INQUIRY WAS "INFILTRATION OF COMMUNISM INTO EDUCATIONAL
AND LABOR FIELDS," HE WAS SPECIFICALLY TOLD THAT THE COMMITTEE HAD
INFORMATION THAT HE HAD RECENTLY BEEN A MEMBER OF A COMMUNIST CELL AT
CORNELL, HAD ACTED AS THE LIAISON BETWEEN AN UNDISCLOSED MEMBER OF THE
FACULTY AND THAT CELL, HAD COLLECTED AND TURNED OVER TO THE CELL MONIES
FROM DONORS WHOM HE REFUSED TO IDENTIFY; AND, THEN, COMING SPECIFICALLY
TO THE PARTICULAR SUBJECT ABOUT WHICH THE COMMITTEE DESIRED TO
INTERROGATE HIM, PETITIONER WAS TOLD THAT THE COMMITTEE WISHED TO
INTERROGATE HIM ABOUT "A COMMUNIST PARTY GROUP OR CELL OPERATING AMONG
UNDERGRADUATES  ...  (AND) ...  GRADUATES AT CORNELL AND IN THE CITY OF
ITHACA" AND "MATTERS RELATING TO (HIS) ACTIVITY THERE."  IN THE SECOND
PLACE, THE SUBJECT UNDER INQUIRY, THUS STATED, WAS NOT ONLY CRYSTAL
CLEAR BUT APPEARS TO HAVE BEEN ENTIRELY PLAIN TO PETITIONER AND HIS
COUNSEL, AS NEITHER OF THEM THEN, OR AT ANY TIME DURING THE HEARING,
MANIFESTED ANY WANT OF UNDERSTANDING OF THE SUBJECT OR ASKED FOR ANY
FURTHER EXPLANATION OF IT.  IN THE THIRD PLACE, NEITHER PETITIONER NOR
HIS COUNSEL MADE ANY OBJECTION, OR EVEN HINTED ANY OBJECTION, TO ANY
QUESTION PUT TO PETITIONER AT THE HEARING ON THE GROUND OF PERTINENCY. 
INSTEAD, PETITIONER SAID:  "THE ONLY THING I AM SAYING, SIR, MY
CHALLENGE, IS, IS IT CONSTITUTIONAL UNDER PUBLIC LAW 601?"  AND,
FINALLY, AT THE TRIAL THE GOVERNMENT PROVED THIS SPECIFIC COMMITTEE
PURPOSE BY INTRODUCING INTO EVIDENCE NOT ONLY THE RECORD MADE AT THE
HEARING BUT ALSO THE TESTIMONY OF THE COMMITTEE'S COUNSEL AS TO THESE
MATTERS.  IT IS, THEREFORE, PASSING STRANGE THAT THE COURT IS UNABLE TO
FIND ANY PROOF OF PERTINENCY OF THE QUESTIONS. 

IN WATKINS V. UNITED STATES, 354 U.S. 178, THE WITNESS HAD EXPRESSLY
"OBJECTED TO THE QUESTIONS ON THE GROUNDS OF LACK OF PERTINENCY" (ID.,
AT 214), AND THE COMMITTEE FAILED TO CLARIFY THAT MATTER.  HENCE, WE
SAID:  "UNLESS THE SUBJECT MATTER HAS BEEN MADE TO APPEAR WITH
UNDISPUTABLE CLARITY, IT IS THE DUTY OF THE INVESTIGATIVE BODY, UPON
OBJECTION OF THE WITNESS ON GROUNDS OF PERTINENCY, TO STATE FOR THE
RECORD THE SUBJECT UNDER INQUIRY AT THAT TIME AND THE MANNER IN WHICH
THE PROPOUNDED QUESTIONS ARE PERTINENT THERETO."  ID., AT 214-215. 
HERE, AS STATED, NOT ONLY WAS PERTINENCY MADE TO APPEAR WITH
"UNDISPUTABLE CLARITY," BUT MOREOVER PETITIONER AND HIS COUNSEL GAVE
EVERY INDICATION TO THE COMMITTEE THAT THEY WERE AWARE OF THE SUBJECT
UNDER INQUIRY AND MADE NO OBJECTION WHATEVER ON THE GROUND OF
PERTINENCY. 

IN BARENBLATT V. UNITED STATES, 360 U.S. 109, THE WITNESS HAD SAID AT
THE HEARING, "I MIGHT WISH TO  ...  CHALLENGE THE PERTINENCY OF THE
QUESTION TO THE INVESTIGATION," AND AT ANOTHER POINT, IN A LENGTHY
WRITTEN STATEMENT, HE QUOTED FROM THIS COURT'S OPINION IN JONES V.
SECURITIES & EXCHANGE COMM'N, 298 U.S. 1, LANGUAGE RELATING TO A
WITNESS' RIGHT TO BE INFORMED OF THE PERTINENCY OF QUESTIONS ASKED HIM
BY AN ADMINISTRATIVE AGENCY, AND THEN CONTENDED IN THIS COURT THAT HIS
CONVICTION FOR CONTEMPT OF CONGRESS SHOULD BE REVERSED BECAUSE THE
SUBJECT OF THE INQUIRY AND THE RELEVANCY OF THE QUESTIONS THERETO WERE
NOT MADE CLEAR.  IN REJECTING THAT CLAIM, AND IN CONTRASTING THAT
SITUATION FROM THE ONE EXISTING IN THE WATKINS CASE, WE SAID:  "THESE
STATEMENTS CANNOT, HOWEVER, BE ACCEPTED AS THE EQUIVALENT OF A
PERTINENCY OBJECTION.  AT BEST THEY CONSTITUTED BUT A CONTEMPLATED
OBJECTION TO QUESTIONS STILL UNASKED, AND BURIED AS THEY WERE IN THE
CONTEXT OF PETITIONER'S GENERAL CHALLENGE TO THE POWER OF THE
SUBCOMMITTEE THEY CAN HARDLY BE CONSIDERED ADEQUATE, WITHIN THE MEANING
OF WHAT WAS SAID IN WATKINS, SUPRA, AT 214-215, TO TRIGGER WHAT WOULD
HAVE BEEN THE SUBCOMMITTEE'S RECIPROCAL OBLIGATION HAD IT BEEN FACED
WITH A PERTINENCY OBJECTION."  360 U.S., AT 123-124. 

I ALSO THINK THAT THIS COURT'S DECISION IN UNITED STATES V. BRYAN,
339 U.S. 323, IS HIGHLY RELEVANT TO THIS QUESTION.  FOR IT IS AS TRUE
HERE, AS IT WAS THERE, THAT IF PETITIONER DID NOT UNDERSTAND THE
SUBJECT UNDER INQUIRY OR BELIEVED THAT THE QUESTIONS PUT TO HIM WERE
NOT RELEVANT TO THAT SUBJECT, "A DECENT RESPECT FOR THE HOUSE OF
REPRESENTATIVES, BY WHOSE AUTHORITY (HE WAS BEING QUESTIONED), WOULD
HAVE REQUIRED THAT (HE) STATE (HIS) REASONS FOR (REFUSING ANSWERS TO
THE QUESTIONS)."  ID., AT 332.  SUCH AN OBJECTION WOULD HAVE GIVEN THE
SUBCOMMITTEE AN OPPORTUNITY TO AVOID THE BLOCKING OF ITS INQUIRY BY A
FURTHER AND EVEN MORE DETAILED EXPLANATION OF THE SUBJECT UNDER INQUIRY
AND THE MANNER IN WHICH THE PROPOUNDED QUESTIONS WERE PERTINENT
THERETO.  "TO DENY THE COMMITTEE THE OPPORTUNITY TO CONSIDER (SUCH AN)
OBJECTION OR REMEDY IT IS IN ITSELF A CONTEMPT OF ITS AUTHORITY AND AN
OBSTRUCTION OF ITS PROCESS.  SEE BEVAN V. KREIGER, 289 U.S. 459, 464
465 (1953)."  339 U.S., AT 333.  PETITIONER'S FAILURE TO MAKE ANY SUCH
OBJECTION AT THE HEARING, BUT RAISING IT, FOR THE FIRST TIME, AT HIS
CONTEMPT TRIAL, WAS PATENTLY AN ATTEMPTED "EVASION OF THE DUTY OF ONE
SUMMONED  ...  BEFORE A CONGRESSIONAL COMMITTEE, (AND) CANNOT BE
CONDONED."  ID., AT 333.  AND SEE MCPHAUL V. UNITED STATES, 364 U.S.
372, 379. 

THIS ALONE SHOULD BE, AND IS FOR ME, A COMPLETE ANSWER TO
PETITIONER'S CLAIM, AND TO THE COURT'S HOLDING, "THAT THE GOVERNMENT AT
THE TRIAL FAILED TO CARRY ITS BURDEN OF PROVING THE PERTINENCE OF THE
QUESTIONS." 

BUT, IN ADDITION, AT LEAST THE QUESTIONS INVOLVED IN COUNTS ONE, TWO,
AND FIVE OF THE INDICTMENT WERE, ON THEIR FACE, CLEARLY PERTINENT TO
THE INQUIRY AS A MATTER OF LAW.  (FN2)  PETITIONER HAD BEEN
SPECIFICALLY TOLD THAT THE PARTICULAR SUBJECT UPON WHICH HE WAS TO BE
INTERROGATED WAS "THE EXISTENCE OF A COMMUNIST PARTY GROUP OR CELL
OPERATING AMONG UNDERGRADUATES  ...  (AND) GRADUATES AT CORNELL AND IN
THE CITY OF ITHACA," AND "MATTERS RELATING TO (HIS) ACTIVITY THERE." 
SURELY THE QUESTIONS INVOLVED IN COUNTS ONE, TWO AND FIVE OF THE
INDICTMENT WERE, ON THEIR FACE, CLEARLY PERTINENT TO THAT SUBJECT.  ONE
CANNOT PROFITABLY ELEBORATE A TRUTH SO PLAIN.  BARENBLATT V. UNITED
STATES, 360 U.S. 109, 123-125.  AND SEE MCPHAUL V. UNITED STATES, 364
U.S. 372, 380-381.    FOR THESE REASONS, I AM BOUND TO THINK THAT THE
TWO COURTS BELOW WERE RIGHT, AND THAT THE JUDGMENT SHOULD BE AFFIRMED. 
FN1  LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 812, 828.  RULE
XI(1)(Q)(2), RULES OF THE HOUSE OF REPRESENTATIVES.  H. RES. 5, 83D
CONG., 1ST SESS., 99 CONG. REC.  15.  AND SEE PP. 18, 24. 

FN2  INASMUCH AS A GENERAL SENTENCE WAS IMPOSED ON THE FOUR COUNTS OF
NO MORE THAN THE LAW ALLOWS TO BE IMPOSED ON ANY ONE COUNT, IT FOLLOWS
THAT IF ANY ONE OF THE FOUR COUNTS WAS ADEQUATELY PROVED BY THE
GOVERNMENT THE JUDGMENT MUST BE AFFIRMED.  BARENBLATT V. UNITED STATES,
SUPRA, AT 126, NOTE 25. 
..END :















CONNER V. SIMLER 367 U.S. 486 


NO. 685.  DECIDED JUNE 12, 1961 - REPORTED BELOW:  282 F.2D 382. 


REHEARING AND CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE
REMANDED. 

CONNER V. SIMLER. 

ON PETITION FOR REHEARING. 

PER CURIAM. 

THE PETITION FOR REHEARING IS GRANTED.  THE ORDER ENTERED MARCH 20,
1961, 365 U.S. 844, DENYING THE PETITION FOR WRIT OF CERTIORARI IS
VACATED AND THE PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR
RECONSIDERATION IN THE LIGHT OF SOUTHARD V. MACDONALD, 360 P.2D 940. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT
FROM VACATION OF THE COURT OF APPEALS JUDGMENT WHICH HELD THAT THE
RESPONDENT SIMLER WAS ENTITLED TO HAVE THE FACTS OF HIS CASE IN THE
UNITED STATES DISTRICT COURT DETERMINED BY A JURY AS WE BELIEVE IS
REQUIRED BY RULE 38 OF THE FEDERAL RULES OF CIVIL PROCEDURE, OUR PRIOR
DECISIONS AND THE SEVENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES. 
..END :
























CRASKA, ALIAS DAVIS V. NEW YORK 367 U.S. 487 


NO. 877.  DECIDED JUNE 12, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CRASKA, ALIAS DAVIS, V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CERVIERI V. PORT OF NEW YORK AUTHORITY 367 U.S. 487 


NO. 886.  DECIDED JUNE 12, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW: 34 N.J. 144, 167 A.2D 609. 


CERVIERI ET UX. V. PORT OF NEW YORK AUTHORITY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















IRVIN V. DOWD 366 U.S. 717 


NO. 41.  ARGUED NOVEMBER 9, 1960 - DECIDED JUNE 5, 1961 - 271 F.2D 552,
JUDGMENT VACATED AND CAUSE REMANDED. 


PETITIONER WAS TRIED IN AN INDIANA STATE COURT, CONVICTED OF MURDER,
AND SENTENCED TO DEATH.  SIX MURDERS HAD BEEN COMMITTED IN THE VICINITY
OF EVANSVILLE, IND., AND THEY WERE EXTENSIVELY COVERED BY NEWS MEDIA IN
THE LOCALITY, WHICH AROUSED GREAT EXCITEMENT AND INDIGNATION THROUGHOUT
VANDERBURGH COUNTY, WHERE EVANSVILLE IS LOCATED, AND ADJOINING GIBSON
COUNTY.  SHORTLY AFTER PETITIONER WAS ARRESTED, THE PROSECUTOR OF
VANDERBURGH COUNTY AND EVANSVILLE POLICE OFFICIALS ISSUED PRESS
RELEASES, WHICH WERE INTENSIVELY PUBLICIZED, STATING THAT PETITIONER
HAD CONFESSED TO THE SIX MURDERS.  WHEN PETITIONER WAS INDICTED IN
VANDERBURGH COUNTY, COUNSEL APPOINTED TO DEFEND HIM IMMEDIATELY SOUGHT
A CHANGE OF VENUE, WHICH WAS GRANTED, BUT TO ADJOINING GIBSON COUNTY. 
ALLEGING THAT THE WIDESPREAD AND INFLAMMATORY PUBLICITY HAD ALSO HIGHLY
PREJUDICED THE INHABITANTS OF GIBSON COUNTY AGAINST PETITIONER, HIS
COUNSEL SOUGHT A CHANGE OF VENUE FROM THAT COUNTY TO A COUNTY
SUFFICIENTLY REMOVED FROM THE EVANSVILLE LOCALITY TO PERMIT AN
UNPREJUDICED AND FAIR TRIAL; BUT THIS WAS DENIED.  AT THE TRIAL, THE
JURY PANEL CONSISTED OF 430 PERSONS; 268 OF THESE WERE EXCUSED FOR
CAUSE AS HAVING FIXED OPINIONS AS TO THE GUILT OF PETITIONER; AND 8 OF
THE 12 WHO FINALLY SERVED ON THE JURY ADMITTED THAT THEY THOUGHT
PETITIONER WAS GUILTY, BUT EACH INDICATED THAT, NOTWITHSTANDING HIS
OPINION, HE COULD RENDER AN IMPARTIAL VERDICT.  AFTER PETITIONER'S
CONVICTION HAD BEEN SUSTAINED BY THE STATE SUPREME COURT, HE APPLIED TO
A FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS CORPUS, WHICH WAS
DENIED.  HELD:  PETITIONER WAS NOT ACCORDED A FAIR AND IMPARTIAL TRIAL,
TO WHICH HE WAS ENTITLED UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT; HIS CONVICTION IS VOID; THE JUDGMENT DENYING HABEAS CORPUS
IS VACATED; AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS AFFORDING THE STATE A REASONABLE TIME TO RETRY PETITIONER. 
PP. 718-729. 

(A)  SINCE THE STATE SUPREME COURT HAS HELD THAT, WHERE AN ATTEMPT
HAS BEEN MADE TO SECURE AN IMPARTIAL JURY BY A CHANGE IN VENUE BUT IT
APPEARS THAT SUCH A JURY COULD NOT BE OBTAINED IN THE COUNTY TO WHICH
THE VENUE WAS CHANGED, IT IS THE DUTY OF THE COURT TO GRANT A SECOND
CHANGE OF VENUE IN ORDER TO AFFORD THE ACCUSED A TRIAL BY AN IMPARTIAL
JURY, A STATE STATUTE PURPORTING TO PERMIT ONLY ONE CHANGE OF VENUE IS
NOT, ON ITS FACE, SUBJECT TO ATTACK ON DUE PROCESS GROUNDS.  PP. 720
721. 

(B)  FAILURE OF A STATE TO ACCORD A FAIR HEARING TO ONE ACCUSED OF A
CRIME VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT; AND
A TRIAL BY JURY IS NOT FAIR UNLESS THE JURY IS IMPARTIAL.  PP. 721
722. 

(C)  IN THE CIRCUMSTANCES OF THIS CASE, IT WAS THE DUTY OF THE
FEDERAL COURT OF APPEALS TO EVALUATE INDEPENDENTLY THE VOIR DIRE
TESTIMONY OF THE IMPANELED JURORS.  PP. 722-723. 

(D)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT PETITIONER
WAS ACCORDED A FAIR TRIAL BY AN IMPARTIAL JURY.  PP. 723-728. 

(E)  PETITIONER IS ENTITLED TO BE FREED FROM DETENTION AND SENTENCE
OF DEATH PURSUANT TO THE VOID JUDGMENT; BUT HE IS STILL SUBJECT TO
CUSTODY UNDER THE INDICTMENT; HE MAY BE RETRIED UNDER THIS OR ANOTHER
INDICTMENT; AND THE DISTRICT COURT SHOULD ALLOW THE STATE A REASONABLE
TIME IN WHICH TO RETRY HIM.  PP. 728-729. 

IRVIN V. DOWD, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A HABEAS CORPUS PROCEEDING, BROUGHT TO TEST THE VALIDITY OF
PETITIONER'S CONVICTION OF MURDER AND SENTENCE OF DEATH IN THE CIRCUIT
COURT OF GIBSON COUNTY, INDIANA.  THE INDIANA SUPREME COURT AFFIRMED
THE CONVICTION IN IRVIN V. STATE, 236 IND. 384, 139 N.E.2D 898, AND WE
DENIED DIRECT REVIEW BY CERTIORARI "WITHOUT PREJUDICE TO FILING FOR
FEDERAL HABEAS CORPUS AFTER EXHAUSTING STATE REMEDIES."  353 U.S. 948. 
PETITIONER IMMEDIATELY SOUGHT A WRIT OF HABEAS CORPUS, UNDER 28 U.S.C.
SEC. 2241, (FN1) IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
INDIANA, CLAIMING THAT HIS CONVICTION HAD BEEN OBTAINED IN VIOLATION OF
THE FOURTEENTH AMENDMENT IN THAT HE DID NOT RECEIVE A FAIR TRIAL.  THAT
COURT DISMISSED THE PROCEEDING ON THE GROUND THAT PETITIONER HAD FAILED
TO EXHAUST HIS STATE REMEDIES.  153 F. SUPP. 531.  ON APPEAL, THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED THE DISMISSAL.  251 F.2D
548.  WE GRANTED CERTIORARI, 356 U.S. 948, AND REMANDED TO THE COURT OF
APPEALS FOR DECISION ON THE MERITS OR REMAND TO THE DISTRICT COURT FOR
RECONSIDERATION.  359 U.S. 394.  THE COURT OF APPEALS RETAINED
JURISDICTION AND DECIDED THE CLAIM ADVERSELY TO PETITIONER.  271 F.2D
552.  WE GRANTED CERTIORARI, 361 U.S. 959. 

AS STATED IN THE FORMER OPINION, 359 U.S., AT 396-397: 

"THE CONSTITUTIONAL CLAIM ARISES IN THIS WAY.  SIX MURDERS WERE
COMMITTED IN THE VICINITY OF EVANSVILLE, INDIANA, TWO IN DECEMBER 1954,
AND FOUR IN MARCH 1955.  THE CRIMES, EXTENSIVELY COVERED BY NEWS MEDIA
IN THE LOCALITY, AROUSED GREAT EXCITEMENT AND INDIGNATION THROUGHOUT
VANDERBURGH COUNTY, WHERE EVANSVILLE IS LOCATED, AND ADJOINING GIBSON
COUNTY, A RURAL COUNTY OF APPROXIMATELY 30,000 INHABITANTS.  THE
PETITIONER WAS ARRESTED ON APRIL 8, 1955.  SHORTLY THEREAFTER, THE
PROSECUTOR OF VANDERBURGH COUNTY AND EVANSVILLE POLICE OFFICIALS ISSUED
PRESS RELEASES, WHICH WERE INTENSIVELY PUBLICIZED, STATING THAT THE
PETITIONER HAD CONFESSED TO THE SIX MURDERS.  THE VANDERBURGH COUNTY
GRAND JURY SOON INDICTED THE PETITIONER FOR THE MURDER WHICH RESULTED
IN HIS CONVICTION.  THIS WAS THE MURDER OF WHITNEY WESLEY KERR
ALLEGEDLY COMMITTED IN VANDERBURGH COUNTY ON DECEMBER 23, 1954. 
COUNSEL APPOINTED TO DEFEND PETITIONER IMMEDIATELY SOUGHT A CHANGE OF
VENUE FROM VANDERBURGH COUNTY, WHICH WAS GRANTED, BUT TO ADJOINING
GIBSON COUNTY.  ALLEGING THAT THE WIDESPREAD AND INFLAMMATORY PUBLICITY
HAD ALSO HIGHLY PREJUDICED THE INHABITANTS OF GIBSON COUNTY AGAINST THE
PETITIONER, COUNSEL, ON OCTOBER 29, 1955, SOUGHT ANOTHER CHANGE OF
VENUE, FROM GIBSON COUNTY TO A COUNTY SUFFICIENTLY REMOVED FROM THE
EVANSVILLE LOCALITY THAT A FAIR TRIAL WOULD NOT BE PREJUDICED.  THE
MOTION WAS DENIED, APPARENTLY BECAUSE THE PERTINENT INDIANA STATUTE
ALLOWS ONLY A SINGLE CHANGE OF VENUE." 

DURING THE COURSE OF THE VOIR DIRE EXAMINATION, WHICH LASTED SOME
FOUR WEEKS, PETITIONER FILED TWO MORE MOTIONS FOR A CHANGE OF VENUE AND
EIGHT MOTIONS FOR CONTINUANCES.  ALL WERE DENIED. 

AT THE OUTSET WE ARE MET WITH THE INDIANA STATUTE PROVIDING THAT ONLY
ONE CHANGE OF VENUE SHALL BE GRANTED "FROM THE COUNTY" WHEREIN THE
OFFENSE WAS COMMITTED.  (FN2)  SINCE PETITIONER HAD ALREADY BEEN
AFFORDED ONE CHANGE OF VENUE, AND HAD BEEN DENIED FURTHER CHANGES
SOLELY ON THE BASIS OF THE STATUTE, HE ATTACKED ITS CONSTITUTIONALITY. 
THE COURT OF APPEALS UPHELD ITS VALIDITY.  HOWEVER, IN THE LIGHT OF
GANNON V. PORTER CIRCUIT COURT, 239 IND. 637, 159 N.E.2D 713, WE DO NOT
BELIEVE THAT ARGUMENT POSES A SERIOUS PROBLEM.  THERE THE INDIANA
SUPREME COURT HELD THAT IF IT WAS "MADE TO APPEAR AFTER ATTEMPT HAS
ACTUALLY BEEN MADE TO SECURE AN IMPARTIAL JURY THAT SUCH JURY COULD NOT
BE OBTAINED IN THE COUNTY OF PRESENT VENUE  ...  IT BECOMES THE DUTY OF
THE JUDICIARY TO PROVIDE TO EVERY ACCUSED A PUBLIC TRIAL BY AN
IMPARTIAL JURY, EVEN THOUGH TO DO SO THE COURT MUST GRANT A SECOND
CHANGE OF VENUE AND THUS CONTRAVENE THE STATUTE  ...  ."  239 IND., AT
642, 159 N.E.2D, AT 715.  THE PROSECUTION ATTEMPTS TO DISTINGUISH THAT
CASE ON THE GROUND THAT THE DISTRICT ATTORNEY THERE CONCEDED THAT A
FAIR TRIAL COULD NOT BE HAD IN LA PORTE COUNTY AND THAT THE COURT,
THEREFORE, PROPERLY ORDERED A SECOND CHANGE OF VENUE DESPITE THE
LANGUAGE OF THE STATUTE.  INASMUCH AS THE STATUTE SAYS NOTHING OF
CONCESSIONS, WE DO NOT BELIEVE THAT THE INDIANA SUPREME COURT
CONDITIONS THE DUTY OF THE JUDICIARY TO TRANSFER A CASE TO ANOTHER
COUNTY SOLELY UPON THE REPRESENTATION BY THE PROSECUTOR - REGARDLESS OF
THE TRIAL COURT'S OWN ESTIMATE OF LOCAL CONDITIONS - THAT AN IMPARTIAL
JURY MAY NOT BE IMPANELED.  AS WE READ GANNON, IT STANDS FOR THE
PROPOSITION THAT THE NECESSITY FOR TRANSFER WILL DEPEND UPON THE
TOTALITY OF THE SURROUNDING FACTS.  UNDER THIS CONSTRUCTION THE STATUTE
IS NOT, ON ITS FACE, SUBJECT TO ATTACK ON DUE PROCESS GROUNDS. 

ENGLAND, FROM WHOM THE WESTERN WORLD HAS LARGELY TAKEN ITS CONCEPTS
OF INDIVIDUAL LIBERTY AND OF THE DIGNITY AND WORTH OF EVERY MAN, HAS
BEQUEATHED TO US SAFEGUARDS FOR THEIR PRESERVATION, THE MOST PRICELESS
OF WHICH IS THAT OF TRIAL BY JURY.  THIS RIGHT HAS BECOME AS MUCH
AMERICAN AS IT WAS ONCE THE MOST ENGLISH.  ALTHOUGH THIS COURT HAS SAID
THAT THE FOURTEENTH AMENDMENT DOES NOT DEMAND THE USE OF JURY TRIALS IN
A STATE'S CRIMINAL PROCEDURE, FAY V. NEW YORK, 332 U.S. 261; PALKO V.
CONNECTICUT, 302 U.S. 319, EVERY STATE HAS CONSTITUTIONALLY PROVIDED
TRIAL BY JURY.  SEE COLUMBIA UNIVERSITY LEGISLATIVE DRAFTING RESEARCH
FUND, INDEX DIGEST OF STATE CONSTITUTIONS, 578-579 (1959).  IN ESSENCE,
THE RIGHT TO JURY TRIAL GUARANTEES TO THE CRIMINALLY ACCUSED A FAIR
TRIAL BY A PANEL OF IMPARTIAL, "INDIFFERENT" JURORS.  THE FAILURE TO
ACCORD AN ACCUSED A FAIR HEARING VIOLATES EVEN THE MINIMAL STANDARDS OF
DUE PROCESS.  IN RE OLIVER, 333 U.S. 257; TUMEY V. OHIO, 273 U.S. 510. 
"A FAIR TRIAL IN A FAIR TRIBUNAL IS A BASIC REQUIREMENT OF DUE
PROCESS."  IN RE MURCHISON, 349 U.S. 133, 136.  IN THE ULTIMATE
ANALYSIS, ONLY THE JURY CAN STRIP A MAN OF HIS LIBERTY OR HIS LIFE.  IN
THE LANGUAGE OF LORD COKE, A JUROR MUST BE AS "INDIFFERENT AS HE STANDS
UNSWORNE."  CO. LITT.  155B.  HIS VERDICT MUST BE BASED UPON THE
EVIDENCE DEVELOPED AT THE TRIAL.  CF. THOMPSON V. CITY OF LOUISVILLE,
362 U.S. 199.  THIS IS TRUE, REGARDLESS OF THE HEINOUSNESS OF THE CRIME
CHARGED, THE APPARENT GUILT OF THE OFFENDER OR THE STATION IN LIFE
WHICH HE OCCUPIES.  IT WAS SO WRITTEN INTO OUR LAW AS EARLY AS 1807 BY
CHIEF JUSTICE MARSHALL IN 1 BURR'S TRIAL 416 (1807).  (FN3)  "THE
THEORY OF THE LAW IS THAT A JUROR WHO HAS FORMED AN OPINION CANNOT BE
IMPARTIAL."  REYNOLDS V. UNITED STATES, 98 U.S. 145, 155. 

IT IS NOT REQUIRED, HOWEVER, THAT THE JURORS BE TOTALLY IGNORANT OF
THE FACTS AND ISSUES INVOLVED.   IN THESE DAYS OF SWIFT, WIDESPREAD AND
DIVERSE METHODS OF COMMUNICATION, AN IMPORTANT CASE CAN BE EXPECTED TO
AROUSE THE INTEREST OF THE PUBLIC IN THE VICINITY, AND SCARCELY ANY OF
THOSE BEST QUALIFIED TO SERVE AS JURORS WILL NOT HAVE FORMED SOME
IMPRESSION OR OPINION AS TO THE MERITS OF THE CASE.  THIS IS
PARTICULARLY TRUE IN CRIMINAL CASES.  TO HOLD THAT THE MERE EXISTENCE
OF ANY PRECONCEIVED NOTION AS TO THE GUILT OR INNOCENCE OF AN ACCUSED,
WITHOUT MORE, IS SUFFICIENT TO REBUT THE PRESUMPTION OF A PROSPECTIVE
JUROR'S IMPARTIALITY WOULD BE TO ESTABLISH AN IMPOSSIBLE STANDARD.  IT
IS SUFFICIENT IF THE JUROR CAN LAY ASIDE HIS IMPRESSION OR OPINION AND
RENDER A VERDICT BASED ON THE EVIDENCE PRESENTED IN COURT.  SPIES V.
ILLINOIS, 123 U.S. 131; HOLT V. UNITED STATES, 218 U.S. 245; REYNOLDS
V. UNITED STATES, SUPRA. 

THE ADOPTION OF SUCH A RULE, HOWEVER, "CANNOT FORECLOSE INQUIRY AS TO
WHETHER, IN A GIVEN CASE, THE APPLICATION OF THAT RULE WORKS A
DEPRIVATION OF THE PRISONER'S LIFE OR LIBERTY WITHOUT DUE PROCESS OF
LAW."  LISENBA V. CALIFORNIA, 314 U.S. 219, 236.  AS STATED IN
REYNOLDS, THE TEST IS "WHETHER THE NATURE AND STRENGTH OF THE OPINION
FORMED ARE SUCH AS IN LAW NECESSARILY  ...  RAISE THE PRESUMPTION OF
PARTIALITY.  THE QUESTION THUS PRESENTED IS ONE OF MIXED LAW AND FACT
...  ."  AT P. 156.  "THE AFFIRMATIVE OF THE ISSUE IS UPON THE
CHALLENGER.  UNLESS HE SHOWS THE ACTUAL EXISTENCE OF SUCH AN OPINION IN
THE MIND OF THE JUROR AS WILL RAISE THE PRESUMPTION OF PARTIALITY, THE
JUROR NEED NOT NECESSARILY BE SET ASIDE  ...  .  IF A POSITIVE AND
DECIDED OPINION HAD BEEN FORMED, HE WOULD HAVE BEEN INCOMPETENT EVEN
THOUGH IT HAD NOT BEEN EXPRESSED."  AT P. 157.  AS WAS STATED IN BROWN
V. ALLEN, 344 U.S. 443, 507, THE "SO-CALLED MIXED QUESTIONS OR THE
APPLICATION OF CONSTITUTIONAL PRINCIPLES TO THE FACTS AS FOUND LEAVE
THE DUTY OF ADJUDICATION WITH THE FEDERAL JUDGE."  IT WAS, THEREFORE,
THE DUTY OF THE COURT OF APPEALS TO INDEPENDENTLY EVALUATE THE VOIR
DIRE TESTIMONY OF THE IMPANELED JURORS. 

THE RULE WAS ESTABLISHED IN REYNOLDS THAT "THE FINDING OF THE TRIAL
COURT UPON THAT ISSUE (THE FORCE OF A PROSPECTIVE JUROR'S OPINION)
OUGHT NOT BE SET ASIDE BY A REVIEWING COURT, UNLESS THE ERROR IS
MANIFEST."  98 U.S., AT 156.  IN LATER CASES THIS COURT REVISITED
REYNOLDS, CITING IT IN EACH INSTANCE FOR THE PROPOSITION THAT FINDINGS
OF IMPARTIALITY SHOULD BE SET ASIDE ONLY WHERE PREJUDICE IS
"MANIFEST."  HOLT V. UNITED STATES, SUPRA; SPIES V. ILLINOIS, SUPRA;
HOPT V. UTAH, 120 U.S. 430.  INDIANA AGREES THAT A TRIAL BY JURORS
HAVING A FIXED, PRECONCEIVED OPINION OF THE ACCUSED'S GUILT WOULD BE A
DENIAL OF DUE PROCESS, BUT POINTS OUT THAT THE VOIR DIRE EXAMINATION
DISCLOSES THAT EACH JUROR QUALIFIED UNDER THE APPLICABLE INDIANA
STATUTE.  (FN4)  IT IS TRUE THAT THE PRESIDING JUDGE PERSONALLY
EXAMINED THOSE MEMBERS OF THE JURY PANEL WHOM PETITIONER, HAVING NO
MORE PEREMPTORY CHALLENGES, INSISTED SHOULD BE EXCUSED FOR CAUSE, AND
THAT EACH INDICATED THAT NOTWITHSTANDING HIS OPINION HE COULD RENDER AN
IMPARTIAL VERDICT.  BUT AS CHIEF JUSTICE HUGHES OBSERVED IN UNITED
STATES V. WOOD, 299 U.S. 123, 145-146:  "IMPARTIALITY IS NOT A
TECHNICAL CONCEPTION.  IT IS A STATE OF MIND.  FOR THE ASCERTAINMENT OF
THIS MENTAL ATTITUDE OF APPROPRIATE INDIFFERENCE, THE CONSTITUTION LAYS
DOWN NO PARTICULAR TESTS AND PROCEDURE IS NOT CHAINED TO ANY ANCIENT
AND ARTIFICIAL FORMULA." 

HERE THE BUILD-UP OF PREJUDICE IS CLEAR AND CONVINCING.  AN
EXAMINATION OF THE THEN CURRENT COMMUNITY PATTERN OF THOUGHT AS
INDICATED BY THE POPULAR NEWS MEDIA IS SINGULARLY REVEALING.  FOR
EXAMPLE, PETITIONER'S FIRST MOTION FOR A CHANGE OF VENUE FROM GIBSON
COUNTY ALLEGED THAT THE AWAITED TRIAL OF PETITIONER HAD BECOME THE
CAUSE CELEBRE OF THIS SMALL COMMUNITY - SO MUCH SO THAT CURBSTONE
OPINIONS, NOT ONLY AS TO PETITIONER'S GUILT BUT EVEN AS TO WHAT
PUNISHMENT HE SHOULD RECEIVE, WERE SOLICITED AND RECORDED ON THE PUBLIC
STREETS BY A ROVING REPORTER, AND LATER WERE BROADCAST OVER THE LOCAL
STATIONS.  A READING OF THE 46 EXHIBITS WHICH PETITIONER ATTACHED TO
HIS MOTION INDICATES THAT A BARRAGE OF NEWSPAPER HEADLINES, ARTICLES,
CARTOONS AND PICTURES WAS UNLEASHED AGAINST HIM DURING THE SIX OR SEVEN
MONTHS PRECEDING HIS TRIAL.  THE MOTION FURTHER ALLEGED THAT THE
NEWSPAPERS IN WHICH THE STORIES APPEARED WERE DELIVERED REGULARLY TO
APPROXIMATELY 95% OF THE DWELLINGS IN GIBSON COUNTY AND THAT, IN
ADDITION, THE EVANSVILLE RADIO AND TV STATIONS, WHICH LIKEWISE
BLANKETED THAT COUNTY, ALSO CARRIED EXTENSIVE NEWSCASTS COVERING THE
SAME INCIDENTS.  THESE STORIES REVEALED THE DETAILS OF HIS BACKGROUND,
INCLUDING A REFERENCE TO CRIMES COMMITTED WHEN A JUVENILE, HIS
CONVICTIONS FOR ARSON ALMOST 20 YEARS PREVIOUSLY, FOR BURGLARY AND BY A
COURT-MARTIAL ON AWOL CHARGES DURING THE WAR.  HE WAS ACCUSED OF BEING
A PAROLE VIOLATOR.  THE HEADLINES ANNOUNCED HIS POLICE LINE-UP
IDENTIFICATION, THAT HE FACED A LIE DETECTOR TEST, HAD BEEN PLACED AT
THE SCENE OF THE CRIME AND THAT THE SIX MURDERS WERE SOLVED BUT
PETITIONER REFUSED TO CONFESS.  FINALLY, THEY ANNOUNCED HIS CONFESSION
TO THE SIX MURDERS AND THE FACT OF HIS INDICTMENT FOR FOUR OF THEM IN
INDIANA.  THEY REPORTED PETITIONER'S OFFER TO PLEAD GUILTY IF PROMISED
A 99-YEAR SENTENCE, BUT ALSO THE DETERMINATION, ON THE OTHER HAND, OF
THE PROSECUTOR TO SECURE THE DEATH PENALTY, AND THAT PETITIONER HAD
CONFESSED TO 24 BURGLARIES (THE MODUS OPERANDI OF THESE ROBBERIES WAS
COMPARED TO THAT OF THE MURDERS AND THE SIMILARITY NOTED).  ONE STORY
DRAMATICALLY RELAYED THE PROMISE OF A SHERIFF TO DEVOTE HIS LIFE TO
SECURING PETITIONER'S EXECUTION BY THE STATE OF KENTUCKY, WHERE
PETITIONER IS ALLEGED TO HAVE COMMITTED ONE OF THE SIX MURDERS, IF
INDIANA FAILED TO DO SO.  ANOTHER CHARACTERIZED PETITIONER AS
REMORSELESS AND WITHOUT CONSCIENCE BUT ALSO AS HAVING BEEN FOUND SANE
BY A COURT-APPOINTED PANEL OF DOCTORS.  IN MANY OF THE STORIES
PETITIONER WAS DESCRIBED AS THE "CONFESSED SLAYER OF SIX," A PAROLE
VIOLATOR AND FRAUDULENT-CHECK ARTIST.  PETITIONER'S COURT-APPOINTED
COUNSEL WAS QUOTED AS HAVING RECEIVED "MUCH CRITICISM OVER BEING
IRVIN'S COUNSEL" AND IT WAS POINTED OUT, BY WAY OF EXCUSING THE
ATTORNEY, THAT HE WOULD BE SUBJECT TO DISBARMENT SHOULD HE REFUSE TO
REPRESENT IRVIN.  ON THE DAY BEFORE THE TRIAL THE NEWSPAPERS CARRIED
THE STORY THAT IRVIN HAD ORALLY ADMITTED THE MURDER OF KERR (THE VICTIM
IN THIS CASE) AS WELL AS "THE ROBBERY-MURDER OF MRS. MARY HOLLAND; THE
MURDER OF MRS. WILHELMINA SAILER IN POSEY COUNTY, AND THE SLAUGHTER OF
THREE MEMBERS OF THE DUNCAN FAMILY IN HENDERSON COUNTY, KY."    IT
CANNOT BE GAINSAID THAT THE FORCE OF THIS CONTINUED ADVERSE PUBLICITY
CAUSED A SUSTAINED EXCITEMENT AND FOSTERED A STRONG PREJUDICE AMONG THE
PEOPLE OF GIBSON COUNTY.  IN FACT, ON THE SECOND DAY DEVOTED TO THE
SELECTION OF THE JURY, THE NEWSPAPERS REPORTED THAT "STRONG FEELINGS,
OFTEN BITTER AND ANGRY, RUMBLED TO THE SURFACE," AND THAT "THE EXTENT
TO WHICH THE MULTIPLE MURDERS - THREE IN ONE FAMILY - HAVE AROUSED
FEELINGS THROUGHOUT THE AREA WAS EMPHASIZED FRIDAY WHEN 27 OF THE 35
PROSPECTIVE JURORS QUESTIONED WERE EXCUSED FOR HOLDING BIASED PRETRIAL
OPINIONS  ...  ."  A FEW DAYS LATER THE FEELING WAS DESCRIBED AS "A
PATTERN OF DEEP AND BITTER PREJUDICE AGAINST THE FORMER PIPE-FITTER." 
SPECTATOR COMMENTS, AS PRINTED BY THE NEWSPAPERS, WERE "MY MIND IS MADE
UP"; "I THINK HE IS GUILTY"; AND "HE SHOULD BE HANGED." 

FINALLY, AND WITH REMARKABLE UNDERSTATEMENT, THE HEADLINES REPORTED
THAT "IMPARTIAL JURORS ARE HARD TO FIND."  THE PANEL CONSISTED OF 430
PERSONS.  THE COURT ITSELF EXCUSED 268 OF THOSE ON CHALLENGES FOR CAUSE
AS HAVING FIXED OPINIONS AS TO THE GUILT OF PETITIONER; 103 WERE
EXCUSED BECAUSE OF CONSCIENTIOUS OBJECTION TO THE IMPOSITION OF THE
DEATH PENALTY; 20, THE MAXIMUM ALLOWED, WERE PEREMPTORILY CHALLENGED BY
PETITIONER AND 10 BY THE STATE; 12 PERSONS AND TWO ALTERNATES WERE
SELECTED AS JURORS AND THE REST WERE EXCUSED ON PERSONAL GROUNDS, E.G.,
DEAFNESS, DOCTOR'S ORDERS, ETC.  AN EXAMINATION OF THE 2,783-PAGE VOIR
DIRE RECORD SHOWS THAT 370 PROSPECTIVE JURORS OR ALMOST 90% OF THOSE
EXAMINED ON THE POINT (10 MEMBERS OF THE PANEL WERE NEVER ASKED WHETHER
OR NOT THEY HAD ANY OPINION) ENTERTAINED SOME OPINION AS TO GUILT -
RANGING IN INTENSITY FROM MERE SUSPICION TO ABSOLUTE CERTAINTY.  A
NUMBER ADMITTED THAT, IF THEY WERE IN THE ACCUSED'S PLACE IN THE DOCK
AND HE IN THEIRS ON THE JURY WITH THEIR OPINIONS, THEY WOULD NOT WANT
HIM ON A JURY. 

HERE THE "PATTERN OF DEEP AND BITTER PREJUDICE" SHOWN TO BE PRESENT
THROUGHOUT THE COMMUNITY, CF. STROBLE V. CALIFORNIA, 343 U.S. 181, WAS
CLEARLY REFLECTED IN THE SUM TOTAL OF THE VOIR DIRE EXAMINATION OF A
MAJORITY OF THE JURORS FINALLY PLACED IN THE JURY BOX.  EIGHT OUT OF
THE 12 THOUGHT PETITIONER WAS GUILTY.  WITH SUCH AN OPINION PERMEATING
THEIR MINDS, IT WOULD BE DIFFICULT TO SAY THAT EACH COULD EXCLUDE THIS
PRECONCEPTION OF GUILT FROM HIS DELIBERATIONS.  THE INFLUENCE THAT
LURKS IN AN OPINION ONCE FORMED IS SO PERSISTENT THAT IT UNCONSCIOUSLY
FIGHTS DETACHMENT FROM THE MENTAL PROCESSES OF THE AVERAGE MAN.  SEE
DELANEY V. UNITED STATES, 199 F.2D 107.  WHERE ONE'S LIFE IS AT STAKE -
AND ACCOUNTING FOR THE FRAILTIES OF HUMAN NATURE - WE CAN ONLY SAY THAT
IN THE LIGHT OF THE CIRCUMSTANCES HERE THE FINDING OF IMPARTIALITY DOES
NOT MEET CONSTITUTIONAL STANDARDS.  TWO-THIRDS OF THE JURORS HAD AN
OPINION THAT PETITIONER WAS GUILTY AND WERE FAMILIAR WITH THE MATERIAL
FACTS AND CIRCUMSTANCES INVOLVED, INCLUDING THE FACT THAT OTHER MURDERS
WERE ATTRIBUTED TO HIM, SOME GOING SO FAR AS TO SAY THAT IT WOULD TAKE
EVIDENCE TO OVERCOME THEIR BELIEF.  ONE SAID THAT HE "COULD NOT  ...
GIVE THE DEFENDANT THE BENEFIT OF THE DOUBT THAT HE IS INNOCENT." 
ANOTHER STATED THAT HE HAD A "SOMEWHAT" CERTAIN FIXED OPINION AS TO
PETITIONER'S GUILT.  NO DOUBT EACH JUROR WAS SINCERE WHEN HE SAID THAT
HE WOULD BE FAIR AND IMPARTIAL TO PETITIONER, BUT THE PSYCHOLOGICAL
IMPACT REQUIRING SUCH A DECLARATION BEFORE ONE'S FELLOWS IS OFTEN ITS
FATHER.  WHERE SO MANY, SO MANY TIMES, ADMITTED PREJUDICE, SUCH A
STATEMENT OF IMPARTIALITY CAN BE GIVEN LITTLE WEIGHT.  AS ONE OF THE
JURORS PUT IT, "YOU CAN'T FORGET WHAT YOU HEAR AND SEE."  WITH HIS LIFE
AT STAKE, IT IS NOT REQUIRING TOO MUCH THAT PETITIONER BE TRIED IN AN
ATMOSPHERE UNDISTURBED BY SO HUGE A WAVE OF PUBLIC PASSION AND BY A
JURY OTHER THAN ONE IN WHICH TWO-THIRDS OF THE MEMBERS ADMIT, BEFORE
HEARING ANY TESTIMONY, TO POSSESSING A BELIEF IN HIS GUILT.  STROBLE V.
CALIFORNIA, 343 U.S. 181; SHEPHERD V. FLORIDA, 341 U.S. 50 (CONCURRING
OPINION); MOORE V. DEMPSEY, 261 U.S. 86. 

PETITIONER'S DETENTION AND SENTENCE OF DEATH PURSUANT TO THE VOID
JUDGMENT IS IN VIOLATION OF THE CONSTITUTION OF THE UNITED STATES AND
HE IS THEREFORE ENTITLED TO BE FREED THEREFROM.  THE JUDGMENTS OF THE
COURT OF APPEALS AND THE DISTRICT COURT ARE VACATED AND THE CASE
REMANDED TO THE LATTER.  HOWEVER, PETITIONER IS STILL SUBJECT TO
CUSTODY UNDER THE INDICTMENT FILED BY THE STATE OF INDIANA IN THE
CIRCUIT COURT OF GIBSON COUNTY CHARGING HIM WITH MURDER IN THE FIRST
DEGREE AND MAY BE TRIED ON THIS OR ANOTHER INDICTMENT.  THE DISTRICT
COURT HAS POWER, IN A HABEAS CORPUS PROCEEDING, TO "DISPOSE OF THE
MATTER AS LAW AND JUSTICE REQUIRE."  28 U.S.C. SEC. 2243.  UNDER THE
PREDECESSORS OF THIS SECTION, "THIS COURT HAS OFTEN DELAYED THE
DISCHARGE OF THE PETITIONER FOR SUCH REASONABLE TIME AS MAY BE
NECESSARY TO HAVE HIM TAKEN BEFORE THE COURT WHERE THE JUDGMENT WAS
RENDERED, THAT DEFECTS WHICH RENDER DISCHARGE NECESSARY MAY BE
CORRECTED."  MAHLER V. EBY, 264 U.S. 32, 46.  THEREFORE, ON REMAND, THE
DISTRICT COURT SHOULD ENTER SUCH ORDERS AS ARE APPROPRIATE AND
CONSISTENT WITH THIS OPINION, CF. GRANDSINGER V. BOVEY, 153 F. SUPP.
201, 240, WHICH ALLOW THE STATE A REASONABLE TIME IN WHICH TO RETRY
PETITIONER.  CF. CHESSMAN V. TEETS, 354 U.S. 156; DOWD V. COOK, 340
U.S. 206; TOD V. WALDMAN, 266 U.S. 113.  VACATED AND REMANDED. 

FN1  SECTION 2241 PROVIDES IN PERTINENT PART: 

"(A)  WRITS OF HABEAS CORPUS MAY BE GRANTED BY THE  ... DISTRICT
COURTS  ...  WITHIN THEIR RESPECTIVE JURISDICTIONS  ...  . 

     *         *         *         *         * 

"(C)  THE WRIT OF HABEAS CORPUS SHALL NOT BE EXTENDED TO A PRISONER
UNLESS  ...  . 

     *         *         *         *        * 

"(3)  HE IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS OR
TREATIES OF THE UNITED STATES ...  ." 

FN2  BURNS' IND. STAT. ANN., 1956 REPLACEMENT VOL., SEC. 9-1305,
PROVIDES IN PERTINENT PART: "WHEN AFFIDAVITS FOR A CHANGE OF VENUE ARE
FOUNDED UPON EXCITEMENT OR PREJUDICE IN THE COUNTY AGAINST THE
DEFENDANT, THE COURT, IN ALL CASES NOT PUNISHABLE BY DEATH, MAY, IN ITS
DISCRETION, AND IN ALL CASES PUNISHABLE BY DEATH, SHALL GRANT A CHANGE
OF VENUE TO THE MOST CONVENIENT COUNTY ... .  PROVIDED, HOWEVER, THAT
ONLY ONE (1) CHANGE OF VENUE FROM THE JUDGE AND ONLY ONE (1) CHANGE
FROM THE COUNTY SHALL BE GRANTED." 

FN3  "LIGHT IMPRESSIONS WHICH MAY FAIRLY BE SUPPOSED TO YIELD TO THE
TESTIMONY THAT MAY BE OFFERED; WHICH MAY LEAVE THE MIND OPEN TO A FAIR
CONSIDERATION OF THAT TESTIMONY, CONSTITUTE NO SUFFICIENT OBJECTION TO
A JUROR; BUT THAT THOSE STRONG AND DEEP IMPRESSIONS, WHICH WILL CLOSE
THE MIND AGAINST THE TESTIMONY THAT MAY BE OFFERED IN OPPOSITION TO
THEM; WHICH WILL COMBAT THAT TESTIMONY AND RESIST ITS FORCE, DO
CONSTITUTE A SUFFICIENT OBJECTION TO HIM." 

FN4  "CHALLENGES FOR CAUSE.  - THE FOLLOWING SHALL BE GOOD CAUSES FOR
CHALLENGE TO ANY PERSON CALLED AS A JUROR IN ANY CRIMINAL TRIAL: 

     *         *         *         *         * 

"SECOND.  THAT HE HAS FORMED OR EXPRESSED AN OPINION AS TO THE GUILT
OR INNOCENCE OF THE DEFENDANT.  BUT IF A PERSON CALLED AS A JUROR
STATES THAT HE HAS FORMED OR EXPRESSED AN OPINION AS TO THE GUILT OR
INNOCENCE OF THE DEFENDANT, THE COURT OR THE PARTIES SHALL THEREUPON
PROCEED TO EXAMINE SUCH JUROR ON OATH AS TO THE GROUND OF SUCH OPINION;
AND IF IT APPEARS TO HAVE BEEN FOUNDED UPON READING NEWSPAPER
STATEMENTS, COMMUNICATIONS, COMMENTS OR REPORTS, OR UPON RUMORS OR
HEARSAY, AND NOT UPON CONVERSATION WITH WITNESSES OF THE TRANSACTION,
OR READING REPORTS OF THEIR TESTIMONY, OR HEARING THEM TESTIFY, AND THE
JUROR STATES ON OATH THAT HE FEELS ABLE, NOTWITHSTANDING SUCH OPINION,
TO RENDER AN IMPARTIAL VERDICT UPON THE LAW AND EVIDENCE, THE COURT, IF
SATISFIED THAT HE IS IMPARTIAL AND WILL RENDER SUCH VERDICT, MAY, IN
ITS DISCRETION, ADMIT HIM AS COMPETENT TO SERVE IN SUCH CASE."  BURNS'
IND. STAT. ANN., 1956 REPLACEMENT VOL., SEC. 9-1504. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

OF COURSE I AGREE WITH THE COURT'S OPINION.  BUT THIS IS,
UNFORTUNATELY, NOT AN ISOLATED CASE THAT HAPPENED IN EVANSVILLE,
INDIANA, NOR AN ATYPICAL MISCARRIAGE OF JUSTICE DUE TO ANTICIPATORY
TRIAL BY NEWSPAPERS INSTEAD OF TRIAL IN COURT BEFORE A JURY. 

MORE THAN ONE STUDENT OF SOCIETY HAS EXPRESSED THE VIEW THAT NOT THE
LEAST SIGNIFICANT TEST OF THE QUALITY OF A CIVILIZATION IS ITS
TREATMENT OF THOSE CHARGED WITH CRIME, PARTICULARLY WITH OFFENSES WHICH
AROUSE THE PASSIONS OF A COMMUNITY.  ONE OF THE RIGHTFUL BOASTS OF
WESTERN CIVILIZATION IS THAT THE STATE HAS THE BURDEN OF ESTABLISHING
GUILT SOLELY ON THE BASIS OF EVIDENCE PRODUCED IN COURT AND UNDER
CIRCUMSTANCES ASSURING AN ACCUSED ALL THE SAFEGUARDS OF A FAIR
PROCEDURE.  THESE RUDIMENTARY CONDITIONS FOR DETERMINING GUILT ARE
INEVITABLY WANTING IF THE JURY WHICH IS TO SIT IN JUDGMENT ON A FELLOW
HUMAN BEING COMES TO ITS TASK WITH ITS MIND INERADICABLY POISONED
AGAINST HIM.  HOW CAN FALLIBLE MEN AND WOMEN REACH A DISINTERESTED
VERDICT BASED EXCLUSIVELY ON WHAT THEY HEARD IN COURT WHEN, BEFORE THEY
ENTERED THE JURY BOX, THEIR MINDS WERE SATURATED BY PRESS AND RADIO FOR
MONTHS PRECEDING BY MATTER DESIGNED TO ESTABLISH THE GUILT OF THE
ACCUSED.  A CONVICTION SO SECURED OBVIOUSLY CONSTITUTES A DENIAL OF DUE
PROCESS OF LAW IN ITS MOST RUDIMENTARY CONCEPTION. 

NOT A TERM PASSES WITHOUT THIS COURT BEING IMPORTUNED TO REVIEW
CONVICTIONS, HAD IN STATES THROUGHOUT THE COUNTRY, IN WHICH SUBSTANTIAL
CLAIMS ARE MADE THAT A JURY TRIAL HAS BEEN DISTORTED BECAUSE OF
INFLAMMATORY NEWSPAPER ACCOUNTS - TOO OFTEN, AS IN THIS CASE, WITH THE
PROSECUTOR'S COLLABORATION - EXERTING PRESSURES UPON POTENTIAL JURORS
BEFORE TRIAL AND EVEN DURING THE COURSE OF TRIAL, THEREBY MAKING IT
EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, TO SECURE A JURY CAPABLE OF
TAKING IN, FREE OF PREPOSSESSIONS, EVIDENCE SUBMITTED IN OPEN COURT. 
INDEED SUCH EXTRANEOUS INFLUENCES, IN VIOLATION OF THE DECENCIES
GUARANTEED BY OUR CONSTITUTION, ARE SOMETIMES SO POWERFUL THAT AN
ACCUSED IS FORCED, AS A PRACTICAL MATTER, TO FOREGO TRIAL BY JURY.  SEE
MARYLAND V. BALTIMORE RADIO SHOW, 338 U.S. 912, 915.  FOR ONE REASON OR
ANOTHER THIS COURT DOES NOT UNDERTAKE TO REVIEW ALL SUCH ENVENOMED
STATE PROSECUTIONS.  BUT, AGAIN AND AGAIN, SUCH DISREGARD OF
FUNDAMENTAL FAIRNESS IS SO FLAGRANT THAT THE COURT IS COMPELLED, AS IT
WAS ONLY A WEEK AGO, TO REVERSE A CONVICTION IN WHICH PREJUDICIAL
NEWSPAPER INTRUSION HAS POISONED THE OUTCOME.  JANKO V. UNITED STATES,
ANTE, P. 716; SEE, E.G., MARSHALL V. UNITED STATES, 360 U.S. 310.  SEE
ALSO STROBLE V. CALIFORNIA, 343 U.S. 181, 198 (DISSENTING OPINION);
SHEPHERD V. FLORIDA, 341 U.S. 50 (CONCURRING OPINION).  THIS COURT HAS
NOT YET DECIDED THAT THE FAIR ADMINISTRATION OF CRIMINAL JUSTICE MUST
BE SUBORDINATED TO ANOTHER SAFEGUARD OF OUR CONSTITUTIONAL SYSTEM -
FREEDOM OF THE PRESS, PROPERLY CONCEIVED.  THE COURT HAS NOT YET
DECIDED THAT, WHILE CONVICTIONS MUST BE REVERSED AND MISCARRIAGES OF
JUSTICE RESULT BECAUSE THE MINDS OF JURORS OR POTENTIAL JURORS WERE
POISONED, THE POISONER IS CONSTITUTIONALLY PROTECTED IN PLYING HIS
TRADE. 
..END :








INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO V. NATIONAL LABOR
RELATIONS BOARD 366 U.S. 731  


NO. 284.  ARGUED APRIL 17, 1961 - DECIDED JUNE 5, 1961 - 108 U.S. APP.
D.C. 68, 280 F.2D 616, AFFIRMED. 


IN THE BONA FIDE BUT MISTAKEN BELIEF THAT A MAJORITY OF THE EMPLOYEES
IN THE APPROPRIATE BARGAINING UNIT HAD AUTHORIZED PETITIONER UNION TO
REPRESENT THEIR INTERESTS, THE UNION AND THE EMPLOYER ENTERED INTO AN
AGREEMENT UNDER WHICH THE EMPLOYER RECOGNIZED THE UNION AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES,
ALTHOUGH IN FACT ONLY A MINORITY OF THOSE EMPLOYEES HAD AUTHORIZED THE
UNION TO REPRESENT THEIR INTERESTS.  THE NATIONAL LABOR RELATIONS BOARD
FOUND THAT, BY EXTENDING SUCH RECOGNITION, THE EMPLOYER INTERFERED WITH
THE ORGANIZATIONAL RIGHTS OF ITS EMPLOYEES IN VIOLATION OF SEC. 8(A)(1)
OF THE NATIONAL LABOR RELATIONS ACT AND GAVE UNLAWFUL SUPPORT TO A
LABOR ORGANIZATION IN VIOLATION OF SEC. 8(A)(2), AND THAT THE UNION
VIOLATED SEC. 8(B)(1)(A) BY ITS ACCEPTANCE OF EXCLUSIVE BARGAINING
AUTHORITY.  THE BOARD ORDERED THE UNFAIR LABOR PRACTICES DISCONTINUED
AND DIRECTED THE HOLDING OF A REPRESENTATION ELECTION.  THE COURT OF
APPEALS GRANTED ENFORCEMENT OF THE BOARD'S ORDER.  HELD:  THE BOARD AND
THE COURT OF APPEALS CORRECTLY HELD THAT SUCH EXTENSION AND ACCEPTANCE
OF RECOGNITION CONSTITUTED UNFAIR LABOR PRACTICES; THE REMEDY PROVIDED
WAS APPROPRIATE; AND THE JUDGMENT IS AFFIRMED.  PP. 732-740. 

(A)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT THE
UNION SUBSEQUENTLY OBTAINED AUTHORIZATION FROM A MAJORITY OF THE
EMPLOYEES TO REPRESENT THEIR INTERESTS, SINCE THE EARLIER RECOGNITION
OF THE MINORITY UNION WAS A FAIT ACCOMPLI DEPRIVING THE MAJORITY OF THE
EMPLOYEES OF THEIR GUARANTEED RIGHT TO CHOOSE THEIR OWN
REPRESENTATIVE.  P. 736. 

(B)  THE AGREEMENT WAS VOID IN ITS ENTIRETY, AND IT CANNOT BE HELD
VALID AND ENFORCIBLE AS TO THOSE EMPLOYEES WHO CONSENTED TO IT.  PP.
736-737. 

(C)  BY GRANTING EXCLUSIVE BARGAINING STATUS TO A UNION SELECTED BY A
MINORITY OF ITS EMPLOYEES, THEREBY IMPRESSING THAT UNION UPON THE
NONCONSENTING MAJORITY, THE EMPLOYER VIOLATED BOTH SEC. 8(A)(1) AND
SEC. 8(A)(2).  PP. 737-738. 

(D)  THE EMPLOYER'S BONA FIDE BELIEF IN THE MAJORITY STATUS OF THE
UNION IS NO DEFENSE.  PP. 738-739. 

(E)  THE REMEDY PROVIDED BY THE BOARD'S ORDER WAS PROPER.  PP. 739
740. 

INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, V. NATIONAL LABOR
RELATIONS BOARD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO DECIDE IN THIS CASE WHETHER IT WAS AN UNFAIR LABOR
PRACTICE FOR BOTH AN EMPLOYER AND A UNION TO ENTER INTO AN AGREEMENT
UNDER WHICH THE EMPLOYER RECOGNIZED THE UNION AS EXCLUSIVE BARGAINING
REPRESENTATIVE OF CERTAIN OF HIS EMPLOYEES, ALTHOUGH IN FACT ONLY A
MINORITY OF THOSE EMPLOYEES HAD AUTHORIZED THE UNION TO REPRESENT THEIR
INTERESTS.  THE BOARD FOUND (FN1) THAT BY EXTENDING SUCH RECOGNITION,
EVEN THOUGH DONE IN THE GOOD-FAITH BELIEF THAT THE UNION HAD THE
CONSENT OF A MAJORITY OF EMPLOYEES IN THE APPROPRIATE BARGAINING UNIT,
THE EMPLOYER INTERFERED WITH THE ORGANIZATIONAL RIGHTS OF HIS EMPLOYEES
IN VIOLATION OF SEC. 8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT AND
THAT SUCH RECOGNITION ALSO CONSTITUTED UNLAWFUL SUPPORT TO A LABOR
ORGANIZATION IN VIOLATION OF SEC. 8(A)(2).  (FN2)  IN ADDITION, THE
BOARD FOUND THAT THE UNION VIOLATED SEC. 8(B)(1)(A) (FN3) BY ITS
ACCEPTANCE OF EXCLUSIVE BARGAINING AUTHORITY AT A TIME WHEN IN FACT IT
DID NOT HAVE THE SUPPORT OF A MAJORITY OF THE EMPLOYEES, AND THIS IN
SPITE OF ITS BONA FIDE BELIEF THAT IT DID.  ACCORDINGLY, THE BOARD
ORDERED THE UNFAIR LABOR PRACTICES DISCONTINUED AND DIRECTED THE
HOLDING OF A REPRESENTATION ELECTION.  THE COURT OF APPEALS, BY A
DIVIDED VOTE, GRANTED ENFORCEMENT, 108 U.S. APP. D.C. 68, 280 F.2D
616.  WE GRANTED CERTIORARI.  364 U.S. 811.  WE AGREE WITH THE BOARD
AND THE COURT OF APPEALS THAT SUCH EXTENSION AND ACCEPTANCE OF
RECOGNITION CONSTITUTE UNFAIR LABOR PRACTICES, AND THAT THE REMEDY
PROVIDED WAS APPROPRIATE. 

IN OCTOBER 1956 THE PETITIONER UNION INITIATED AN ORGANIZATIONAL
CAMPAIGN AT BERNHARD-ALTMANN TEXAS CORPORATION'S KNITWEAR MANUFACTURING
PLANT IN SAN ANTONIO, TEXAS.  NO OTHER LABOR ORGANIZATION WAS SIMILARLY
ENGAGED AT THAT TIME.  DURING THE COURSE OF THAT CAMPAIGN, ON JULY 29,
1957, CERTAIN OF THE COMPANY'S TOPPING DEPARTMENT EMPLOYEES WENT ON
STRIKE IN PROTEST AGAINST A WAGE REDUCTION.  THAT DISPUTE WAS IN NO WAY
RELATED TO THE UNION CAMPAIGN, HOWEVER, AND THE ORGANIZATIONAL EFFORTS
WERE CONTINUED DURING THE STRIKE.  SOME OF THE STRIKING EMPLOYEES HAD
SIGNED AUTHORIZATION CARDS SOLICITED BY THE UNION DURING ITS DRIVE,
AND, WHILE THE STRIKE WAS IN PROGRESS, THE UNION ENTERED UPON A COURSE
OF NEGOTIATIONS WITH THE EMPLOYER.  AS A RESULT OF THOSE NEGOTIATIONS,
HELD IN NEW YORK CITY WHERE THE HOME OFFICES OF BOTH WERE LOCATED, ON
AUGUST 30, 1957, THE EMPLOYER AND UNION SIGNED A "MEMORANDUM OF
UNDERSTANDING."  IN THAT MEMORANDUM THE COMPANY RECOGNIZED THE UNION AS
EXCLUSIVE BARGAINING REPRESENTATIVE OF "ALL PRODUCTION AND SHIPPING
EMPLOYEES."  THE UNION REPRESENTATIVE ASSERTED THAT THE UNION'S
COMPARISON OF THE EMPLOYEE AUTHORIZATION CARDS IN ITS POSSESSION WITH
THE NUMBER OF ELIGIBLE EMPLOYEES REPRESENTATIVES OF THE COMPANY
FURNISHED IT INDICATED THAT THE UNION HAD IN FACT SECURED SUCH CARDS
FROM A MAJORITY OF EMPLOYEES IN THE UNIT.  NEITHER EMPLOYER NOR UNION
MADE ANY EFFORT AT THAT TIME TO CHECK THE CARDS IN THE UNION'S
POSSESSION AGAINST THE EMPLOYEE ROLL, OR OTHERWISE, TO ASCERTAIN WITH
ANY DEGREE OF CERTAINTY THAT THE UNION'S ASSERTION, LATER FOUND BY THE
BOARD TO BE ERRONEOUS, (FN4) WAS FOUNDED ON FACT RATHER THAN UPON GOOD
FAITH ASSUMPTION.  THE AGREEMENT, CONTAINING NO UNION SECURITY
PROVISIONS, CALLED FOR THE ENDING OF THE STRIKE AND FOR CERTAIN
IMPROVED WAGES AND CONDITIONS OF EMPLOYMENT.  IT ALSO PROVIDED THAT A
"FORMAL AGREEMENT CONTAINING THESE TERMS" WOULD "BE PROMPTLY DRAFTED
...  AND SIGNED BY BOTH PARTIES WITHIN THE NEXT TWO WEEKS." 

THEREAFTER, ON OCTOBER 10, 1957, A FORMAL COLLECTIVE BARGAINING
AGREEMENT, EMBODYING THE TERMS OF THE AUGUST 30 MEMORANDUM, WAS SIGNED
BY THE PARTIES.  THE BARGAINING UNIT DESCRIPTION SET OUT IN THE FORMAL
CONTRACT, ALTHOUGH MORE SPECIFIC, CONFORMED TO THAT CONTAINED IN THE
PRIOR MEMORANDUM.  IT IS NOT DISPUTED THAT AS OF EXECUTION OF THE
FORMAL CONTRACT THE UNION IN FACT REPRESENTED A CLEAR MAJORITY OF
EMPLOYEES IN THE APPROPRIATE UNIT.  (FN5)  IN UPHOLDING THE COMPLAINTS
FILED AGAINST THE EMPLOYER AND UNION BY THE GENERAL COUNSEL, THE BOARD
DECIDED (FN6) THAT THE EMPLOYER'S GOOD-FAITH BELIEF THAT THE UNION IN
FACT REPRESENTED A MAJORITY OF EMPLOYEES IN THE UNIT ON THE CRITICAL
DATE OF THE MEMORANDUM OF UNDERSTANDING WAS NOT A DEFENSE,
"PARTICULARLY WHERE, AS HERE, THE COMPANY MADE NO EFFORT TO CHECK THE
AUTHORIZATION CARDS AGAINST ITS PAYROLL RECORDS."  122 N.L.R.B. 1289,
1292.  NOTING THAT THE UNION WAS "ACTIVELY SEEKING RECOGNITION AT THE
TIME SUCH RECOGNITION WAS GRANTED," AND THAT "THE UNION WAS (NOT) THE
PASSIVE RECIPIENT OF AN UNSOLICITED GIFT BESTOWED BY THE COMPANY," THE
BOARD FOUND THAT THE UNION'S EXECUTION OF THE AUGUST 30 AGREEMENT WAS A
"DIRECT DEPRIVATION" OF THE NONCONSENTING MAJORITY EMPLOYEES'
ORGANIZATIONAL AND BARGAINING RIGHTS.  AT PP. 1292, 1293, NOTE 9.
ACCORDINGLY, THE BOARD ORDERED THE EMPLOYER TO WITHHOLD ALL RECOGNITION
FROM THE UNION AND TO CEASE GIVING EFFECT TO AGREEMENTS ENTERED INTO
WITH THE UNION; (FN7) THE UNION WAS ORDERED TO CEASE ACTING AS
BARGAINING REPRESENTATIVE OF ANY OF THE EMPLOYEES UNTIL SUCH TIME AS A
BOARD-CONDUCTED ELECTION DEMONSTRATED ITS MAJORITY STATUS, AND TO
REFRAIN FROM SEEKING TO ENFORCE THE AGREEMENTS PREVIOUSLY ENTERED. 

THE COURT OF APPEALS FOUND IT DIFFICULT TO "CONCEIVE OF A CLEARER
RESTRAINT ON THE EMPLOYEES' RIGHT OF SELF-ORGANIZATION THAN FOR THEIR
EMPLOYER TO ENTER INTO A COLLECTIVE-BARGAINING AGREEMENT WITH A
MINORITY OF THE EMPLOYEES."  280 F.2D, AT 619.  THE COURT DISTINGUISHED
OUR DECISION IN LABOR BOARD V. DRIVERS LOCAL UNION NO. 639, 362 U.S.
274, ON THE GROUND THAT THERE WAS INVOLVED HERE NEITHER RECOGNITIONAL
NOR ORGANIZATIONAL PICKETING.  THE COURT HELD THAT THE BONA FIDES OF
THE PARTIES WAS IRRELEVANT EXCEPT TO THE EXTENT THAT IT "WAS ARRIVED AT
THROUGH AN ADEQUATE EFFORT TO DETERMINE THE TRUE FACTS OF THE
SITUATION."  AT P. 622. 

AT THE OUTSET, WE REJECT AS WITHOUT RELEVANCE TO OUR DECISION THE
FACT THAT, AS OF THE EXECUTION DATE OF THE FORMAL AGREEMENT ON OCTOBER
10, PETITIONER REPRESENTED A MAJORITY OF THE EMPLOYEES.  AS THE COURT
OF APPEALS INDICATED, THE RECOGNITION OF THE MINORITY UNION ON AUGUST
30, 1957, WAS "A FAIT ACCOMPLI DEPRIVING THE MAJORITY OF THE EMPLOYEES
OF THEIR GUARANTEED RIGHT TO CHOOSE THEIR OWN REPRESENTATIVE."  280
F.2D, AT 621.  IT IS, THEREFORE, OF NO CONSEQUENCE THAT PETITIONER MAY
HAVE ACQUIRED BY OCTOBER 10 THE NECESSARY MAJORITY IF, DURING THE
INTERIM, IT WAS ACTING UNLAWFULLY.  INDEED, SUCH ACQUISITION OF
MAJORITY STATUS ITSELF MIGHT INDICATE THAT THE RECOGNITION SECURED BY
THE AUGUST 30 AGREEMENT AFFORDED PETITIONER A DECEPTIVE CLOAK OF
AUTHORITY WITH WHICH TO PERSUASIVELY ELICIT ADDITIONAL EMPLOYEE
SUPPORT. 

NOR DOES THIS CASE DIRECTLY INVOLVE A STRIKE.  THE STRIKE WHICH
OCCURRED WAS IN PROTEST AGAINST A WAGE REDUCTION AND HAD NOTHING TO DO
WITH PETITIONER'S QUEST FOR RECOGNITION.  LIKEWISE, NO QUESTION OF
PICKETING IS PRESENTED.  LASTLY, THE VIOLATION WHICH THE BOARD FOUND
WAS THE GRANT BY THE EMPLOYER OF EXCLUSIVE REPRESENTATION STATUS TO A
MINORITY UNION, AS DISTINGUISHED FROM AN EMPLOYER'S BARGAINING WITH A
MINORITY UNION FOR ITS MEMBERS ONLY.  THEREFORE, THE EXCLUSIVE
REPRESENTATION PROVISION IS THE VICE IN THE AGREEMENT, AND DISCUSSION
OF "COLLECTIVE BARGAINING," AS DISTINGUISHED FROM "EXCLUSIVE
RECOGNITION," IS POINTLESS.  (FN8)  MOREOVER, THE INSISTENCE THAT WE
HOLD THE AGREEMENT VALID AND ENFORCEABLE AS TO THOSE EMPLOYEES WHO
CONSENTED TO IT MUST BE REJECTED.  ON THE FACTS SHOWN, THE AGREEMENT
MUST FAIL IN ITS ENTIRETY.  IT WAS OBTAINED UNDER THE ERRONEOUS CLAIM
OF MAJORITY REPRESENTATION.  PERHAPS THE EMPLOYER WOULD NOT HAVE
ENTERED INTO IT IF HE HAD KNOWN THE FACTS.  QUITE APART FROM OTHER
CONCEIVABLE SITUATIONS, THE UNLAWFUL GENESIS OF THIS AGREEMENT
PRECLUDES ITS PARTIAL VALIDITY. 

IN THEIR SELECTION OF A BARGAINING REPRESENTATIVE, SEC. 9(A) OF THE
WAGNER ACT GUARANTEES EMPLOYEES FREEDOM OF CHOICE AND MAJORITY RULE. 
J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332, 339.  IN SHORT, AS WE SAID
IN BROOKS V. LABOR BOARD, 348 U.S. 96, 103, THE ACT PLACED "A
NONCONSENTING MINORITY UNDER THE BARGAINING RESPONSIBILITY OF AN AGENCY
SELECTED BY A MAJORITY OF THE WORKERS."  HERE, HOWEVER, THE REVERSE HAS
BEEN SHOWN TO BE THE CASE.  BERNHARD-ALTMANN GRANTED EXCLUSIVE
BARGAINING STATUS TO AN AGENCY SELECTED BY A MINORITY OF ITS EMPLOYEES,
THEREBY IMPRESSING THAT AGENT UPON THE NONCONSENTING MAJORITY.  THERE
COULD BE NO CLEARER ABRIDGMENT OF SEC. 7 OF THE ACT, ASSURING EMPLOYEES
THE RIGHT "TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING" OR "TO REFRAIN FROM" SUCH ACTIVITY.  (FN9)  IT FOLLOWS,
WITHOUT NEED OF FURTHER DEMONSTRATION, THAT THE EMPLOYER ACTIVITY FOUND
PRESENT HERE VIOLATED SEC. 8(A)(1) OF THE ACT WHICH PROHIBITS EMPLOYER
INTERFERENCE WITH, AND RESTRAINT OF, EMPLOYEE EXERCISE OF SEC. 7
RIGHTS.  SECTION 8(A)(2) OF THE ACT MAKES IT AN UNFAIR LABOR PRACTICE
FOR AN EMPLOYER TO "CONTRIBUTE  ...  SUPPORT" TO A LABOR ORGANIZATION. 
THE LAW HAS LONG BEEN SETTLED THAT A GRANT OF EXCLUSIVE RECOGNITION TO
A MINORITY UNION CONSTITUTES UNLAWFUL SUPPORT IN VIOLATION OF THAT
ANY OTHER IN SECURING THE ADHERENCE OF EMPLOYEES," LABOR BOARD V.
PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, 267.  IN THE TAFT-HARTLEY
LAW, CONGRESS ADDED SEC. 8(B)(1)(A) TO THE WAGNER ACT, PROHIBITING, AS
THE COURT OF APPEALS HELD, "UNIONS FROM INVADING THE RIGHTS OF
EMPLOYEES UNDER SEC. 7 IN A FASHION COMPARABLE TO THE ACTIVITIES OF
EMPLOYERS PROHIBITED UNDER SEC. 8(A)(1)"  280 F.2D, AT 620.  IT WAS THE
INTENT OF CONGRESS TO IMPOSE UPON UNIONS THE SAME RESTRICTIONS WHICH
THE WAGNER ACT IMPOSED ON EMPLOYERS WITH RESPECT TO VIOLATIONS OF
EMPLOYEE RIGHTS.  (FN10) 

THE PETITIONER, WHILE TAKING NO ISSUE WITH THE FACT OF ITS MINORITY
STATUS ON THE CRITICAL DATE, MAINTAINS THAT BOTH BERNHARD-ALTMANN'S AND
ITS OWN GOOD-FAITH BELIEFS IN PETITIONER'S MAJORITY STATUS ARE A
COMPLETE DEFENSE.  TO COUNTENANCE SUCH AN EXCUSE WOULD PLACE IN
PERMISSIBLY CARELESS EMPLOYER AND UNION HANDS THE POWER TO COMPLETELY
FRUSTRATE EMPLOYEE REALIZATION OF THE PREMISE OF THE ACT - THAT ITS
PROHIBITIONS WILL GO FAR TO ASSURE FREEDOM OF CHOICE AND MAJORITY RULE
IN EMPLOYEE SELECTION OF REPRESENTATIVES.  (FN11)  WE FIND NOTHING IN
THE STATUTORY LANGUAGE PRESCRIBING SCIENTER AS AN ELEMENT OF THE UNFAIR
LABOR PRACTICES HERE INVOLVED.  THE ACT MADE UNLAWFUL BY SEC. 8(A)(2)
IS EMPLOYER SUPPORT OF A MINORITY UNION.  HERE THAT SUPPORT IS AN
ACCOMPLISHED FACT.  MORE NEED NOT BE SHOWN, FOR, EVEN IF MISTAKENLY,
THE EMPLOYEES' RIGHTS HAVE BEEN INVADED.  IT FOLLOWS THAT PROHIBITED
CONDUCT CANNOT BE EXCUSED BY A SHOWING OF GOOD FAITH.  (FN12) 

THIS CONCLUSION, WHILE GIVING THE EMPLOYEE ONLY THE PROTECTION
ASSURED HIM BY THE ACT, PLACES NO PARTICULAR HARDSHIP ON THE EMPLOYER
OR THE UNION.  IT MERELY REQUIRES THAT RECOGNITION BE WITHHELD UNTIL
THE BOARD-CONDUCTED ELECTION RESULTS IN MAJORITY SELECTION OF A
REPRESENTATIVE.  THE BOARD'S ORDER HERE, AS WE MIGHT INFER FROM THE
EMPLOYER'S FAILURE TO RESIST ITS ENFORCEMENT, WOULD APPARENTLY RESULT
IN SIMILARLY SLIGHT HARDSHIP UPON IT.  WE DO NOT SHARE PETITIONER'S
APPREHENSION THAT HOLDING SUCH CONDUCT UNLAWFUL WILL SOMEHOW INDUCE A
BREAKDOWN, OR SERIOUSLY IMPEDE THE PROGRESS OF COLLECTIVE BARGAINING. 
IF AN EMPLOYER TAKES REASONABLE STEPS TO VERIFY UNION CLAIMS,
THEMSELVES ADVANCED ONLY AFTER CAREFUL ESTIMATE - PRECISELY WHAT
BERNHARD-ALTMANN AND PETITIONER FAILED TO DO HERE - HE CAN READILY
ASCERTAIN THEIR VALIDITY AND OBVIATE A BOARD ELECTION.  WE FAIL TO SEE
ANY ONEROUS BURDEN INVOLVED IN REQUIRING RESPONSIBLE NEGOTIATORS TO BE
CAREFUL, BY CROSS-CHECKING, FOR EXAMPLE, WELL-ANALYZED EMPLOYER RECORDS
WITH UNION LISTINGS OR AUTHORIZATION CARDS.  INDIVIDUAL AND COLLECTIVE
EMPLOYEE RIGHTS MAY NOT BE TRAMPLED UPON MERELY BECAUSE IT IS
INCONVENIENT TO AVOID DOING SO.  MOREOVER, NO PENALTY IS ATTACHED TO
THE VIOLATION.  ASSUMING THAT AN EMPLOYER IN GOOD FAITH ACCEPTS OR
REJECTS A UNION CLAIM OF MAJORITY STATUS, THE VALIDITY OF HIS DECISION
MAY BE TESTED IN AN UNFAIR LABOR PRACTICE PROCEEDING.  (FN13)  IF HE IS
FOUND TO HAVE ERRED IN EXTENDING OR WITHHOLDING RECOGNITION, HE IS
SUBJECT ONLY TO A REMEDIAL ORDER REQUIRING HIM TO CONFORM HIS CONDUCT
TO THE NORMS SET OUT IN THE ACT, AS WAS THE CASE HERE.  NO FURTHER
PENALTY RESULTS.  WE BELIEVE THE BOARD'S REMEDIAL ORDER IS THE PROPER
ONE IN SUCH CASES.  LABOR BOARD V. DISTRICT 50, U.M.W., 355 U.S. 453. 
AFFIRMED. 

FN1  EXCEPT FOR FILING AN ANSWER, THE EMPLOYER, BERNHARD-ALTMANN
TEXAS CORPORATION, DID NOT RESIST ENFORCEMENT OF THE BOARD'S ORDER AND
HAS NOT SOUGHT REVIEW IN THIS COURT. 

FN2  SECTION 8(A)(1) AND (2), INSOFAR AS PERTINENT, PROVIDE: 

"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 7. 

"(2)  TO DOMINATE OR INTERFERE WITH THE FORMATION OR ADMINISTRATION
OF ANY LABOR ORGANIZATION OR CONTRIBUTE FINANCIAL OR OTHER SUPPORT TO
IT  ...  ."  61 STAT. 140, 29 U.S.C. SEC. 158(A)(1), (2). 

FN3  SECTION 8(B)(1)(A) PROVIDES IN PERTINENT PART: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS
AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7 ...  ."  61 STAT. 141, 29 U.S.C. SEC.
158(B)(1).    FN4  THE BOARD FOUND THAT AS OF AUGUST 30 THE UNION IN
FACT HAD AUTHORITY TO REPRESENT EITHER 70 EMPLOYEES OUT OF A RELEVANT
TOTAL OF 280, OR 158 OUT OF 368, DEPENDING UPON THE CRITERIA USED IN
DETERMINING EMPLOYEE ELIGIBILITY.  "ACCORDINGLY, THE UNION COULD NOT,
UNDER ANY CIRCUMSTANCES, HAVE REPRESENTED A MAJORITY OF THE EMPLOYEES
INVOLVED ON AUGUST 30, 1957."  122 N.L.R.B. 1289, 1291-1292. 

FN5  THE COURT OF APPEALS CONSIDERED IRRELEVANT THE ACHIEVEMENT OF
MAJORITY STATUS DURING THE PERIOD THAT THE UNION MAINTAINED THE
UNLAWFUL AGREEMENT.  280 F.2D 616, 619, NOTE 3. 

FN6  MEMBER FANNING AGREED WITH A MAJORITY OF THE BOARD THAT THE
EMPLOYER VIOLATED SEC. 8(A)(1) AND (2), BUT DISSENTED AS TO THE FINDING
OF UNION VIOLATION OF SEC. 8(B)(1)(A).  122 N.L.R.B. 1289, 1297. 

FN7  HOWEVER, THE TERMS AND CONDITIONS OF EMPLOYMENT FIXED BY THE
AGREEMENT WERE NOT REQUIRED TO BE VARIED OR ABANDONED.  WE TAKE IT THAT
THE BOARD'S ORDER RESTRAINING THE UNION AND EMPLOYER FROM DEALING WILL,
IN ANY EVENT, TERMINATE AFTER THE ELECTION IS HELD. 

FN8  RELYING UPON REFERENCE TO SEC. 9 DECERTIFICATION PROCEEDINGS,
PETITIONER CONTENDS THAT SUCH A CONTRACT WITH A MINORITY UNION DOES NOT
PREVENT EMPLOYEES FROM EXERCISING COMPLETE FREEDOM.  THE AVAILABILITY
OF SUCH A REMEDY IS DOUBTFUL IN VIEW OF THE BOARD'S POSITION THAT THE
"CONTRACT BAR" DEFENSE PREVENTS A SHOWING OF LACK OF MAJORITY STATUS AT
THE TIME A CONTRACT WAS MADE.  SEE IN RE COLUMBIA RIVER SALMON & TUNA
PACKERS ASSN., 91 N.L.R.B. 1424, AND CASES CITED THEREIN. 

FN9  SECTION 7 PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)."  61 STAT.
140, 29 U.S.C. SEC. 157. 

FN10  SEE S. REP. NO. 105, 80TH CONG., 1ST SESS. 50 (SUPP. VIEWS), I
LEG.  HIST.  (1947) 456; II LEG.  HIST.  (1947) 1199, 1204, 1207. 

FN11  ALTHOUGH IT IS OF NO SIGNIFICANCE TO OUR HOLDING, WE NOTE THAT
THERE WAS MADE NO REASONABLE EFFORT TO DETERMINE WHETHER IN FACT
PETITIONER REPRESENTED A MAJORITY OF THE EMPLOYEES. 

FN12 SEE LABOR BOARD V. PERFECT CIRCLE CO., 162 F.2D 566; LABOR BOARD
V. ILLINOIS TOOL WORKS, 153 F.2D 811; MCQUAY-NORRIS MFG. CO. V. LABOR
BOARD, 116 F.2D 748; AND CF. LABOR BOARD V. INDUSTRIAL COTTON MILLS,
208 F.2D 87. 

FN13  SECTION 8(A)(5) MAKES IT AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER "TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES  ...  ."  61 STAT. 141, 29 U.S.C. SEC. 158(A)(5). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS, DISSENTING
IN PART. 

I AGREE THAT, UNDER THE STATUTORY SCHEME, A MINORITY UNION DOES NOT
HAVE THE STANDING TO BARGAIN FOR ALL EMPLOYEES.  THAT PRINCIPLE OF
REPRESENTATIVE GOVERNMENT EXTENDS ONLY TO THE MAJORITY.  BUT WHERE
THERE IS NO MAJORITY UNION, I SEE NO REASON WHY THE MINORITY UNION
SHOULD BE DISABLED FROM BARGAINING FOR THE MINORITY OF THE MEMBERS WHO
HAVE JOINED IT.  (FN1)  YET THE ORDER OF THE BOARD, NOW APPROVED,
ENJOINS PETITIONER UNION FROM ACTING AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE "OF ANY OF THE EMPLOYEES," AND IT ENJOINS THE EMPLOYER
FROM RECOGNIZING THE UNION AS THE REPRESENTATIVE OF "ANY OF ITS
EMPLOYEES." 

WE HAVE INDICATED OVER AND AGAIN THAT, ABSENT AN EXCLUSIVE AGENCY FOR
BARGAINING CREATED BY A MAJORITY OF WORKERS, A MINORITY UNION HAS
STANDING TO BARGAIN FOR ITS MEMBERS.  IN VIRGINIAN R. CO. V.
FEDERATION, 300 U.S. 515, 549, NOTE 6, THE COURT QUOTED WITH APPROVAL A
CONCESSION THAT "IF THE MAJORITY OF A CRAFT OR CLASS HAS NOT SELECTED A
REPRESENTATIVE, THE CARRIER IS FREE TO MAKE WITH ANYONE IT PLEASES AND
FOR ANY GROUP IT PLEASES CONTRACTS ESTABLISHING RATES OF PAY, RULES, OR
WORKING CONDITIONS." 

THAT CASE WAS UNDER THE RAILWAY LABOR ACT.  BUT IT HAS BEEN FOLLOWED
UNDER THE NATIONAL LABOR RELATIONS ACT.  IN EDISON CO. V. LABOR BOARD,
305 U.S. 197, A UNION, THE BROTHERHOOD OF ELECTRICAL WORKERS, WAS
ALLOWED TO ACT AS A BARGAINING REPRESENTATIVE FOR THE EMPLOYEES WHO
WERE ITS MEMBERS, EVEN THOUGH THEY WERE A MINORITY.  THE COURT SAID, "
...  IN THE ABSENCE OF SUCH AN EXCLUSIVE AGENCY THE EMPLOYEES
REPRESENTED BY THE BROTHERHOOD, EVEN IF THEY WERE A MINORITY, CLEARLY
HAD THE RIGHT TO MAKE THEIR OWN CHOICE."  ID., 237.  MAINTENANCE OF THE
STATUS OF A MINORITY UNION, UNTIL AN ELECTION WAS HELD, MIGHT WELL
SERVE THE PURPOSE OF PROTECTING COMMERCE "FROM INTERRUPTIONS AND
OBSTRUCTIONS CAUSED BY INDUSTRIAL STRIFE."  ID., 237.  A DECREE
REQUIRING THE EMPLOYER TO CEASE RECOGNIZING THE BROTHERHOOD AS THE
EXCLUSIVE REPRESENTATIVE OF ITS MEMBERS WAS MODIFIED: 

"THE CONTRACTS DO NOT CLAIM FOR THE BROTHERHOOD EXCLUSIVE
REPRESENTATION OF THE COMPANIES' EMPLOYEES BUT ONLY REPRESENTATION OF
THOSE WHO ARE ITS MEMBERS, AND THE CONTINUED OPERATION OF THE CONTRACTS
IS NECESSARILY SUBJECT TO THE PROVISION OF THE LAW BY WHICH
REPRESENTATIVES OF THE EMPLOYEES FOR THE PURPOSE OF COLLECTIVE
BARGAINING CAN BE ASCERTAINED IN CASE ANY QUESTION OF 'REPRESENTATION'
SHOULD ARISE.  WE CONSTRUE THE ORDER AS HAVING NO MORE EFFECT THAN TO
PROVIDE THAT THERE SHALL BE NO INTERFERENCE WITH AN EXCLUSIVE
BARGAINING AGENCY IF ONE OTHER THAN THE UNION SHOULD BE ESTABLISHED IN
ACCORDANCE WITH  ...  THE ACT."  ID., 239. 

IT WAS IN THAT TRADITION THAT WE RECENTLY SUSTAINED THE RIGHT OF A
MINORITY UNION TO PICKET PEACEFULLY TO COMPEL RECOGNITION.  LABOR BOARD
V. DRIVERS LOCAL UNION, 362 U.S. 274.  THERE A MINORITY UNION SOUGHT TO
COMPEL EXCLUSIVE REPRESENTATION RIGHTS.  TO BE SURE, THIS COURT
RECOGNIZED IN THAT CASE THAT "TENSION EXISTS BETWEEN  ...  THE RIGHT TO
FORM, JOIN OR ASSIST LABOR ORGANIZATIONS AND THE RIGHT TO REFRAIN FROM
DOING SO."  ID., 280.  BUT WHEN A MINORITY UNION SEEKS ONLY TO
REPRESENT ITS OWN, WHAT PROVISION OF THE ACT DEPRIVES IT OF ITS RIGHT
TO REPRESENT THEM, WHERE A MAJORITY HAVE NOT SELECTED ANOTHER UNION TO
REPRESENT THEM? 

JUDGE LEARNED HAND IN DOUDS V. LOCAL 1250, 173 F.2D 764, 770, STATED
THAT "THE RIGHT TO BARGAIN COLLECTIVELY AND THE RIGHT TO STRIKE AND
INDUCE OTHERS TO DO SO, ARE DERIVED FROM THE COMMON-LAW; IT IS ONLY IN
SO FAR AS SOMETHING IN THE ACT FORBIDS THEIR EXERCISE THAT THEIR
EXERCISE BECOMES UNLAWFUL."  IN THAT CASE A MINORITY UNION WAS
RECOGNIZED AS HAVING STANDING IN A GRIEVANCE PROCEEDING OUTSIDE THE
COLLECTIVE BARGAINING AGREEMENT, EVEN WHERE A MAJORITY HAD CHOSEN
ANOTHER UNION.  SEE AMERICAN FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S.
184. 

HONORING A MINORITY UNION - WHERE NO MAJORITY UNION EXISTS OR EVEN
WHERE THE ACTIVITIES OF THE MINORITY UNION DO NOT COLLIDE WITH A
BARGAINING AGREEMENT - IS BEING RESPECTFUL OF HISTORY.  LONG BEFORE THE
WAGNER ACT, EMPLOYERS AND EMPLOYEES HAD THE RIGHT TO DISCUSS THEIR
PROBLEMS.  IN THE EARLY DAYS THE UNIONS WERE REPRESENTATIVES OF A
MINORITY OF WORKERS.  (FN2)  THE AIM - AT LEAST THE HOPE - OF THE
LEGISLATION WAS THAT MAJORITY UNIONS WOULD EMERGE AND PROVIDE
STABILIZING INFLUENCES.  YET I HAVE FOUND NOTHING IN THE HISTORY OF THE
SUCCESSIVE MEASURES, STARTING WITH THE WAGNER ACT, THAT INDICATES ANY
PURPOSE ON THE PART OF CONGRESS TO DENY A MINORITY UNION THE RIGHT TO
BARGAIN FOR ITS MEMBERS WHEN A MAJORITY HAVE NOT IN FACT CHOSEN A
BARGAINING REPRESENTATIVE.  (FN3) 

I THINK THE COURT IS CORRECT INSOFAR AS IT SETS ASIDE THE EXCLUSIVE
RECOGNITION CLAUSE IN THE CONTRACT.  I THINK IT IS INCORRECT IN SETTING
ASIDE THE ENTIRE CONTRACT.  FIRST, THAT AGREEMENT SECURED VALUABLE
BENEFITS FOR THE UNION'S MEMBERS REGARDING WAGES AND HOURS, WORK
STANDARDS AND DISTRIBUTION, DISCHARGE AND DISCIPLINE, HOLIDAYS,
VACATIONS, HEALTH AND WELFARE FUND, AND OTHER MATTERS.  SINCE THERE WAS
NO DULY SELECTED REPRESENTATIVE FOR ALL THE EMPLOYEES AUTHORIZED IN
ACCORDANCE WITH THE ACT, IT CERTAINLY WAS THE RIGHT OF THE EMPLOYEE
UNION MEMBERS TO DESIGNATE THE UNION OR ANY OTHER APPROPRIATE PERSON TO
MAKE THIS CONTRACT THEY DESIRED.  TO HOLD THE CONTRACT VOID AS TO THE
UNION'S VOLUNTARY MEMBERS SEEMS TO ME TO GO BEYOND THE COMPETENCY OF
THE BOARD UNDER THE ACT AND TO BE UNSUPPORTED BY ANY PRINCIPLE OF
CONTRACT LAW.  CERTAINLY THERE IS NO PRINCIPLE OF JUSTICE OF FAIRNESS
WITH WHICH I AM FAMILIAR THAT REQUIRES THESE EMPLOYEES TO BE STRIPPED
OF THE BENEFITS THEY ACQUIRED BY THE GOOD-FAITH BARGAINING OF THEIR
DESIGNATED AGENT.  SUCH A DEPRIVATION GIVES NO PROTECTION TO THE
MAJORITY WHO WERE NOT MEMBERS OF THE UNION AND ARBITRARILY TAKES FROM
THE UNION MEMBERS THEIR CONTRACT RIGHTS. 

SECOND, THE RESULT OF TODAY'S DECISION IS TO ENJOIN THE EMPLOYER FROM
DEALING WITH THE UNION AS THE REPRESENTATIVE OF ITS OWN MEMBERS IN ANY
MANNER, WHETHER IN RELATION TO GRIEVANCES OR OTHERWISE, UNTIL IT IS
CERTIFIED AS A MAJORITY UNION.  A CASE FOR COMPLETE DISESTABLISHMENT OF
THE UNION CANNOT BE SUSTAINED UNDER OUR DECISIONS.  WHILE THE POWER OF
THE BOARD IS BROAD, IT IS "NOT LIMITLESS."  LABOR BOARD V. MINE
WORKERS, 355 U.S. 453, 458.  THUS A DISTINCTION HAS BEEN TAKEN BETWEEN
REMEDIES IN SITUATIONS WHERE A UNION HAS BEEN DOMINATED BY THE EMPLOYER
AND WHERE UNIONS HAVE BEEN ASSISTED BUT NOT DOMINATED.  ID., 458-459. 

THE PRESENT CASE IS UNIQUE.  THE FINDINGS ARE THAT BOTH THE EMPLOYER
AND THE UNION WERE IN "GOOD FAITH" IN BELIEVING THAT THE UNION
REPRESENTED A MAJORITY OF THE WORKERS.  GOOD-FAITH VIOLATIONS OF THE
ACT ARE NONETHELESS VIOLATIONS; AND THE PRESENT VIOLATION WARRANTS
DISESTABLISHMENT OF THE UNION AS A MAJORITY REPRESENTATIVE.  BUT THIS
GOOD-FAITH MISTAKE HARDLY WARRANTS FULL AND COMPLETE DISESTABLISHMENT,
HERETOFORE RESERVED FOR FLAGRANT VIOLATIONS OF THE ACT.  ITS
APPLICATION HERE SMACKS MORE OF A PENALTY THAN OF A REMEDIAL MEASURE. 

I THINK THIS UNION IS ENTITLED TO SPEAK FOR ITS MEMBERS UNTIL ANOTHER
UNION IS CERTIFIED AS OCCUPYING THE BARGAINING FIELD.  THAT IS ITS
COMMON-LAW RIGHT IN NO WAY DILUTED OR IMPAIRED BY THE ACT. 

FN1  THE COLLECTIVE BARGAINING AGREEMENT IN THE PRESENT CASE
UNDERTAKES TO MAKE THE UNION "THE SOLE AND EXCLUSIVE BARGAINING
REPRESENTATIVE" FOR ALL WORKERS IN THE BARGAINING UNIT.  ARTICLE II.
BUT THE AGREEMENT ALSO CONTAINS A SEPARABILITY CLAUSE - THAT IF "ANY
PROVISION" IS HELD "INVALID," THE REMAINDER OF THE AGREEMENT IS NOT
AFFECTED.  ARTICLE XXIX. 

FN2  TWENTIETH CENTURY FUND, HOW COLLECTIVE BARGAINING WORKS (1942),
P. 24; U.S. DEPT. OF LABOR INFORMATION BULLETIN, VOL. 5, NO. 6 (1938),
PP. 5-8.  FOR EXAMPLES OF SUCH "MEMBERS ONLY" CONTRACTS, SEE, E.G., 2
LAB.  REL.  REP. MAN.  964, 967.  SEE ALSO UNION RECOGNITION AS SHOWN
IN CONTRACTS, 1A LAB.  REL.  REP. MAN.  781-787:  "THE BEGINNING POINT
OF COLLECTIVE BARGAINING IN LABOR RELATIONS IS THE RECOGNITION BY AN
EMPLOYER OF THE OTHER PARTY TO ANY CONTRACT ENTERED INTO AS THE PARTY
REPRESENTING EMPLOYEES  ...  .  UNION-RECOGNITION CLAUSES, AS EMBODIED
IN MOST RECENT CONTRACTS GENERALLY FALL INTO TWO DIFFERENT PATTERNS. 
IN SOME CONTRACTS, THE UNION IS RECOGNIZED AS THE EXCLUSIVE BARGAINING
AGENT FOR ALL EMPLOYEES.  IN OTHERS, THE UNION IS RECOGNIZED AS
BARGAINING AGENT FOR THOSE EMPLOYEES ONLY WHO ARE OR MAY BECOME MEMBERS
OF THE UNION." 

FN3  THE BOARD HAS FREQUENTLY RECOGNIZED THAT RECOGNITION OF A
MINORITY UNION AS REPRESENTATIVE OF ITS MEMBERS ONLY WAS NOT AN UNFAIR
LABOR PRACTICE, ABSENT THE CHOICE BY A MAJORITY OF A DIFFERENT
BARGAINING REPRESENTATIVE.  SEE SOLVAY PROCESS CO., 5 N.L.R.B. 330,
340; HOOVER CO., 90 N.L.R.B. 1614, 1618.  AND SEE CLEVELAND WORSTED
MILLS CO., 43 N.L.R.B. 545; BLACK DIAMOND S.S. CORP. V. LABOR BOARD, 94
F.2D 875. 
..END :











CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. V. UNITED STATES 366
U.S. 745 


NO. 306.  ARGUED MAY 2, 1961 - DECIDED JUNE 5, 1961* - 182 F. SUPP. 81,
AFFIRMED. 

*TOGETHER WITH NO. 307, BENSON, SECRETARY OF AGRICULTURE, V. UNITED
STATES ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


APPELLANT RAILROAD APPLIED TO THE INTERSTATE COMMERCE COMMISSION FOR
AN ORDER REQUIRING THE SPOKANE, PORTLAND & SEATTLE RAILWAY AND ITS TWO
WHOLLY OWNED SUBSIDIARIES (COLLECTIVELY REFERRED TO AS THE "S.P.&S.
SYSTEM") TO JOIN APPELLANT IN THROUGH ROUTES AND JOINT RATES VIA
SPOKANE, WASH., AS EXTENSIVE AS THOSE THE S.P.&S. SYSTEM PARTICIPATES
IN WITH ITS TWO OWNERS, THE GREAT NORTHERN RAILWAY AND THE NORTHERN
PACIFIC.  THE COMMISSION FOUND THAT, WITH LIMITED EXCEPTIONS, NO
THROUGH ROUTES EXISTED FOR THE MOVEMENT OF FREIGHT BY THE S.P.&S.
SYSTEM AND THE APPELLANT RAILROAD VIA SPOKANE.  IT HELD THAT THE "SHORT
HAUL PROTECTION" PROVIDED IN SEC. 15(4) OF THE INTERSTATE COMMERCE ACT
APPLIED, BECAUSE THE S.P.&S. SYSTEM WAS OPERATED IN CONJUNCTION WITH
AND UNDER COMMON MANAGEMENT OF ITS PARENTS, EACH OF WHICH OWNED 50% OF
THE S.P.&S.  IT ALSO FOUND THAT THE REFUSAL OF THE S.P.&S.  SYSTEM TO
GRANT THE THROUGH ROUTES AND JOINT RATES REQUESTED DID NOT RESULT IN
DISCRIMINATION AGAINST APPELLANT OR IN UNDUE PREFERENCE OR PREJUDICE
BETWEEN SHIPPERS AND LOCALITIES AND THAT THEY WERE NOT "NEEDED IN ORDER
TO PROVIDE ADEQUATE AND MORE EFFICIENT OR MORE ECONOMIC
TRANSPORTATION."  ACCORDINGLY, IT DISMISSED THE APPLICATION.  THE
DISTRICT COURT HELD THAT THE FINDINGS OF THE COMMISSION WERE SUPPORTED
BY SUBSTANTIAL EVIDENCE AND AFFIRMED ITS RULING AS TO THE APPLICATION
OF SEC. 15(D).  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 746-756. 

(A)  THE COMMISSION'S FINDINGS WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE.  P. 749. 

(B)  SECTION 15(4) OF THE INTERSTATE COMMERCE ACT, WHICH PROHIBITS
THE COMMISSION FROM ESTABLISHING ANY THROUGH ROUTE WHICH WOULD REQUIRE
A RAILROAD TO INCLUDE IN SUCH ROUTE SUBSTANTIALLY LESS THAN ITS ENTIRE
LENGTH AND THAT OF ANY INTERMEDIATE RAILROAD "OPERATED IN CONJUNCTION
AND UNDER A COMMON MANAGEMENT OR CONTROL THEREWITH," APPLIES TO A
RAILROAD LIKE THE S.P.&S. WHICH IS OPERATED IN CONJUNCTION WITH AND
UNDER THE JOINT COMMON MANAGEMENT AND CONTROL OF TWO RAILROADS.  PP.
749-756. 

CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. V. UNITED STATES ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF WISCONSIN. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE ARE DIRECT APPEALS FROM AN ORDER OF A THREE-JUDGE DISTRICT
COURT DISMISSING APPELLANTS' COMPLAINT SEEKING TO SET ASIDE AN
INTERSTATE COMMERCE COMMISSION DECISION WHICH REFUSED TO PRESCRIBE
THROUGH ROUTES AND JOINT RATES FOR TRAFFIC MOVING BETWEEN APPELLANT
RAILROAD AND THE SPOKANE, PORTLAND AND SEATTLE RAILWAY (THE "S.P.&S.")
SYSTEM (FN1) VIA SPOKANE, WASHINGTON.  THE COMMISSION FOUND, CONTRARY
TO APPELLANTS' CONTENTION, THAT, WITH LIMITED EXCEPTIONS, NO THROUGH
ROUTES EXISTED FOR THE MOVEMENT OF FREIGHT BY THE S.P.&S. SYSTEM AND
APPELLANT RAILROAD (THE "MILWAUKEE") VIA SPOKANE.  IT ALSO HELD THAT
THE SHORT-HAUL PROTECTION PROVIDED IN SEC. 15(4) OF THE INTERSTATE
COMMERCE ACT (FN2) APPLIED BECAUSE THE S.P.&S. WAS OPERATED IN
CONJUNCTION WITH AND UNDER COMMON MANAGEMENT OF ITS PARENTS, THE GREAT
NORTHERN RAILWAY CO. AND THE NORTHERN PACIFIC RAILWAY CO. (THE
"NORTHERN LINES"), EACH OF WHICH OWNED 50% OF THE S.P.&S.  FINALLY, IT
ENTERED A FINDING THAT THE REFUSAL OF THE S.P.&S. SYSTEM TO GRANT THE
THROUGH ROUTES (FN3) AND JOINT RATES (FN4) REQUESTED DID NOT RESULT IN
DISCRIMINATION AGAINST THE MILWAUKEE OR IN UNDUE PREFERENCE OR
PREJUDICE BETWEEN SHIPPERS AND LOCALITIES AND FURTHER FOUND THAT THEY
WERE NOT "NEEDED IN ORDER TO PROVIDE ADEQUATE AND MORE EFFICIENT OR
MORE ECONOMIC TRANSPORTATION."  300 I.C.C. 453.  THE DISTRICT COURT
HELD THAT THE FINDINGS OF THE COMMISSION WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE AND AFFIRMED ITS RULING AS TO THE APPLICATION OF SEC. 15(4). 
182 F. SUPP. 81.  WE NOTED PROBABLE JURISDICTION.  364 U.S. 860.  WE
AFFIRM THE JUDGMENT. 

THE FACTUAL SITUATION IS DESCRIBED IN DETAIL IN THE COMMISSION'S
REPORT AND WE WILL, THEREFORE, SET IT OUT ONLY BRIEFLY.  IT APPEARS
THAT THE S.P.&S. WAS BUILT BY THE NORTHERN LINES FOR THE PURPOSE OF
RELIEVING CONGESTION, AVOIDING DOUBLE MOUNTAIN TRACKAGE, AND OBTAINING
LOW GRADE ROAD FACILITIES TO THE WEST COAST.  ITS LINES - APPROXIMATELY
950 MILES IN LENGTH - RUN ALONG THE SNAKE AND COLUMBIA RIVERS WESTWARD
BETWEEN SPOKANE, WASHINGTON, AND THE PACIFIC COAST VIA PORTLAND,
OREGON.  THE LINES OF ITS PARENTS, THE NORTHERN LINES, OPERATE BETWEEN
MINNEAPOLIS-ST. PAUL, MINNESOTA, AND THE HEAD OF THE GREAT LAKES ON THE
EAST AND PORTLAND, OREGON, AND COASTAL POINTS IN WASHINGTON ON THE
WEST.  THEY SERVE THE LARGER CITIES IN NORTHERN IDAHO, MONTANA, NORTH
AND SOUTH DAKOTA AND MINNESOTA.  THE MILWAUKEE OPERATES SOME 10,600
MILES OF LINE FROM CHICAGO, ILLINOIS, AND WESTPORT, INDIANA, ON THE
EAST AND LONGVIEW, WASHINGTON, ON THE WEST.  WHILE IT SERVES MANY OF
THE SAME CITIES IN IDAHO, MONTANA, THE DAKOTAS AND MINNESOTA FROM WHICH
THE NORTHERN LINES RECEIVE TRAFFIC, APPELLANT RAILROAD SERVES NO POINT
IN OREGON DIRECTLY.  IF IT COULD ESTABLISH THROUGH ROUTES AND JOINT
RATES WITH THE S.P.&S.  SYSTEM, THE MILWAUKEE MIGHT SECURE, ON
INTERCHANGE AT SPOKANE, MUCH OF THE TRAFFIC THAT ORIGINATES OR
TERMINATES ON THE S.P.&S. SYSTEM.  ON THE OTHER HAND, THE NORTHERN
LINES SEEK TO OBTAIN AS MUCH OF THIS HAUL AS POSSIBLE AND HAVE
PUBLISHED JOINT RATES ON ALL IMPORTANT COMMODITIES INTERCHANGED BETWEEN
THE S.P.&S. SYSTEM AND THE NORTHERN LINES AT SPOKANE.  THESE RATES ARE
LOWER THAN THE COMBINATION OF THE LOCAL RATES OF THE S.P.&S. AND THE
APPELLANT RAILROAD NOW APPLICABLE TO TRAFFIC WHICH COULD BE
INTERCHANGED AT THE SAME POINT, SPOKANE, BETWEEN THESE CARRIERS.  IT
APPEARS THAT THE S.P.&S. SYSTEM AND THE NORTHERN LINES ARE NOT OPPOSED
TO THE PUBLICATION OF JOINT RATES BY THE S.P.&S. SYSTEM AND THE
MILWAUKEE FOR TRAFFIC TO OR FROM POINTS SERVED ONLY BY THE LATTER
(LOCAL POINTS) BUT REFUSE TO ESTABLISH THROUGH ROUTES AND JOINT RATES
VIA APPELLANT'S LINE TO POINTS WHICH ARE ALSO SERVED BY THE NORTHERN
LINES. 

WE FIND, AS DID THE DISTRICT COURT, THAT SUBSTANTIAL EVIDENCE DOES
SUPPORT THE FACTUAL FINDINGS OF THE COMMISSION.  WE SHALL, THEREFORE,
FOREGO A DISCUSSION OF THE APPELLANTS' CONTENTIONS BASED ON THE
FINDINGS.  WE ARE LEFT WITH ONLY THE PRINCIPAL ISSUE, NAMELY, WHETHER
THE PROTECTION OF SEC. 15(4) OF THE ACT EXTENDS TO TWO RAILROADS OWNING
A THIRD IN THE RELATIONSHIP EXISTING HERE. 

THE NORTHERN LINES COMPETE WITH EACH OTHER BUT OWN IN EQUAL SHARES
ALL OF THE BONDS AND STOCK OF THE S.P.&S.  THEIR PRESIDENTS ALTERNATE
YEARLY AS PRESIDENT AND VICE PRESIDENT OF, AND PERSONALLY PASS UPON THE
EXECUTIVE PROBLEMS OF, THE S.P.&S., WHICH, HOWEVER, HAS AN OPERATING
VICE PRESIDENT OF ITS OWN.  AS TO EQUIPMENT, THE NORTHERN LINES FURNISH
A SUBSTANTIAL AMOUNT OF THE CAR SUPPLY OF THE S.P.&S. SYSTEM.  THE
TRAFFIC POLICIES OF THE LATTER ARE DIRECTED AND CONTROLLED JOINTLY BY
THE TRAFFIC DEPARTMENTS OF THE NORTHERN LINES.  TRANSCONTINENTAL
TRAFFIC MATTERS ARE HANDLED BY REPRESENTATIVES OF THE NORTHERN LINES
BUT LOCAL TRAFFIC PROBLEMS - UNDER THE GENERAL POLICIES AFOREMENTIONED
ARE LEFT TO THE S.P.&S.  OFFICIALS.  IN SHORT, EXCEPT WHEN THE
NORTHERN LINES DISAGREE BETWEEN THEMSELVES, THEY ENTIRELY CONTROL THE
OPERATION OF THE S.P.&S. 

ESTABLISH REASONABLE THROUGH ROUTES" WITH EACH OTHER.  WHERE SUCH
ROUTES ARE NOT ESTABLISHED VOLUNTARILY, THE COMMISSION HAS THE POWER,
UNDER SEC. 15(3) OF THE ACT, TO PRESCRIBE THEM "WHENEVER DEEMED BY IT
TO BE NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST."  THIS AUTHORITY
IS RESTRICTED AGAINST SHORT HAULING, HOWEVER, BY SEC. 15(4) WHICH
PROVIDES THAT THE COMMISSION "SHALL NOT  ...  REQUIRE ANY CARRIER BY
RAILROAD  ... TO EMBRACE IN SUCH ROUTE SUBSTANTIALLY LESS THAN THE
ENTIRE LENGTH OF ITS RAILROAD AND OF ANY INTERMEDIATE RAILROAD OPERATED
IN CONJUNCTION AND UNDER A COMMON MANAGEMENT OR CONTROL THEREWITH,
WHICH LIES BETWEEN THE TERMINI OF SUCH PROPOSED THROUGH ROUTE  ...  ." 
APPELLANTS CONTEND THAT SINCE THE EASTERN TERMINUS OF THE S.P.&S. IS
SPOKANE, THE ESTABLISHMENT OF THE THROUGH ROUTES VIA THAT POINT WOULD
NOT SHORT HAUL THE S.P.&S. IF, HOWEVER, THE S.P.&S. IS UNDER THE
"COMMON MANAGEMENT OR CONTROL" OF THE NORTHERN LINES AND THE SHORT-HAUL
PROTECTION OF SEC. 15(4) IS AVAILABLE TO THEM, THE THROUGH ROUTES
SOUGHT WOULD, IF GRANTED, RESULT IN THE LATTER BEING SHORT HAULED IN
CONTRAVENTION OF THIS SECTION. 

THE FINDINGS OF THE COMMISSION, APPROVED BY THE DISTRICT COURT,
INDICATE CLEARLY THAT NEITHER OF THE NORTHERN LINES INDIVIDUALLY
CONTROLS THE S.P.&S.  HOWEVER, IT IS EQUALLY CLEAR THAT JOINTLY THEY DO
MANAGE AND CONTROL IT AS EFFECTIVELY AS IF IT WERE PART OF THEIR OWN
LINES.  THIS IS PARTICULARLY TRUE OF ITS TRAFFIC POLICY, WHICH IS THE
HEART OF THE PROBLEM HERE.  HOWEVER, APPELLANTS CONTEND THAT,
REGARDLESS OF THE FACTUAL CIRCUMSTANCES, AS A MATTER OF LAW ONLY A
SINGLE RAILROAD CAN OPERATE OR CONTROL ANOTHER LINE WITHIN THE MEANING
OF THE SHORT-HAUL PROTECTION OF SEC. 15(4). 

THE SHORT-HAUL EXCEPTION OF SEC. 15(4) ORIGINATED IN THE MANN-ELKINS
ACT OF 1910.  36 STAT.  539, 552.  THE CRUCIAL WORDS "COMMON MANAGEMENT
OR CONTROL" WERE NOT DEFINED AND THE SUBSEQUENT LEGISLATIVE HISTORY OF
THE PROVISION IS OF LITTLE ASSISTANCE TO OUR INQUIRY.  HOWEVER, THE
OVERRIDING PURPOSE OF THE CONGRESS SEEMS TO HAVE BEEN THE PROTECTION OF
THE TRAFFIC OF THE CONTROLLING LINE.  AS SENATOR ELKINS, A COAUTHOR OF
THE MEASURE, STATED TO THE SENATE, THE EXCEPTION "IS ONE WHICH HAS
ALWAYS BEEN RECOGNIZED IN THE TRANSPORTATION BUSINESS OF THE COUNTRY. 
THE ROAD THAT INITIATES THE FREIGHT AND STARTS IT ON ITS MOVEMENT IN
INTERSTATE COMMERCE SHOULD NOT BE REQUIRED  ...  TO TRANSFER ITS
BUSINESS FROM ITS OWN ROAD TO THAT OF A COMPETITOR  ... WHEN THE
COMMERCE INITIATED BY IT CAN BE AS PROMPTLY AND SAFELY TRANSPORTED  ...
BY ITS ROAD AS BY THE LINE OF ITS COMPETITOR."  45 CONG. REC. 3475
3476.  THE SAME REASONING WOULD EQUALLY APPLY HERE.  MOREOVER, THE
SENATE REPORT ON THE PROVISION EMPHASIZES THE SAME PURPOSE.  (FN5) 

WHILE THE LANGUAGE OF THE SECTION IS FRAMED IN THE SINGULAR, IT
APPEARS TO US THAT THE REASON FOR THIS EXCEPTION IS AS VALID AND
NECESSARY IN THE CASE OF TWO RAILROADS OWNING A THIRD AS IT IS WHEN
ONLY A SINGLE RAILROAD AND ITS SUBSIDIARY ARE INVOLVED.  SEE LOUISVILLE
& N.R. CO. V. UNITED STATES, 242 U.S. 60 (1916), WHERE THIS COURT, IN
CONSTRUING THE DISCRIMINATION PROVISIONS OF THE PREDECESSOR OF SEC.
3(4) OF THE ACT, STATED, "THEREFORE, IF EITHER CARRIER OWNED AND USED
THIS TERMINAL ALONE IT COULD NOT BE FOUND TO DISCRIMINATE AGAINST THE
TENNESSEE CENTRAL BY MERELY REFUSING TO SWITCH FOR IT  ...  .  WE
CONCEIVE THAT WHAT IS TRUE OF ONE OWNER WOULD BE EQUALLY TRUE OF TWO
JOINT OWNERS  ... ."  AT P. 73. 

APPELLANTS RELY HEAVILY ON THE FACT THAT THE CONGRESS, IN ENACTING
THE TRANSPORTATION ACT OF 1940, BROADENED THE DEFINITION OF THE TERM
"CONTROL" IN MANY OF THE SECTIONS OF THE INTERSTATE COMMERCE ACT (FN6)
BUT DID NOT DO SO IN SEC. 15(4), THEREBY INDICATING AN INTENTION TO
RESTRICT THE SCOPE OF THE EXCEPTION.  THIS DEFINITION, HOWEVER, WAS
ENACTED AS THE RESULT OF THIS COURT'S HOLDING IN ROCHESTER TELEPHONE
CORP. V. UNITED STATES, 307 U.S. 125 (1939), WHICH GAVE A BROAD
CONSTRUCTION TO "CONTROL" AS USED IN SEC. 2(B) OF THE COMMUNICATIONS
ACT.  47 U.S.C. SEC. 152(B).  IT APPEARS THAT THE CONGRESS DECIDED TO
EXTEND THIS BROAD DEFINITION TO CERTAIN SECTIONS OF THE INTERSTATE
COMMERCE ACT TO INSURE COMMISSION JURISDICTION OVER PERSONS IN INDIRECT
CONTROL OF CARRIERS.  SEE H.R. REP. NO. 2016, 76TH CONG., 3D SESS. 58. 
IF, HOWEVER, THAT DEFINITION WERE APPLIED TO SEC. 15(4), THE OPPOSITE
RESULT WOULD OBTAIN AND THE COMMISSION'S POWER WOULD BE RESTRICTED, FOR
THE SHORT-HAUL EXCEPTION WOULD THEN BE AFFORDED TO CARRIERS HAVING ONLY
AN INDIRECT CONTROL OF ANOTHER LINE.  FOR THIS REASON, THE CONGRESS
"THOUGHT IT UNDESIRABLE TO MAKE ANY CHANGE IN THE INTERPRETATION OF
PRESENT LAW,  ...  NOTABLY  ...  SECTION 15(4)."  H.R. REP. NO. 2832,
76TH CONG., 3D SESS. 63. 

APPARENTLY THE PHRASE "OPERATED IN CONJUNCTION AND UNDER A COMMON
MANAGEMENT OR CONTROL" HAS RECEIVED NO PRIOR JUDICIAL INTERPRETATION,
AS WE HAVE BEEN UNABLE TO FIND ANY CASES IN POINT AND HAVE BEEN
REFERRED TO NONE BY COUNSEL.  HOWEVER, THE DECISIONS OF THE INTERSTATE
COMMERCE COMMISSION SUPPORT THE VIEW THAT CONTROL OF THE TRAFFIC POLICY
OF AN AFFILIATE IS SUFFICIENT TO CONSTITUTE "CONTROL" OR "MANAGEMENT"
WITHIN THE MEANING OF SEC. 15(4).  THE COMMISSION'S CONCEPTION OF THESE
TERMS WAS FIRST EXPRESSED IN A RATE CASE, BLACKSHEAR MFG. CO. V.
ATLANTIC COAST LINE R. CO., 87 I.C.C. 654 (1924), IN WHICH THE
COMMISSION STATED THAT "THE TERM 'CARRIERS UNDER THE SAME MANAGEMENT
AND CONTROL'  ...  REFERS TO CARRIERS GENERALLY CONTROLLED THROUGH
OWNERSHIP, LEASE, OR OTHERWISE TO THE EXTENT OF CONTROLLING TRAFFIC
POLICY, EVEN THOUGH SEPARATE CORPORATE ENTITY MAY BE MAINTAINED."  AT
P. 664.  IN SUBSEQUENT RATE CASES THE COMMISSION HAS CONTINUED TO APPLY
THIS CRITERION TO DETERMINE WHETHER OR NOT LINES ARE UNDER THE SAME
"MANAGEMENT" OR "CONTROL."  (FN7) 

IN ANOTHER LINE OF RATE-MAKING CASES, THE COMMISSION HAS HELD THAT
THERE CAN BE JOINT MANAGEMENT AND CONTROL OF A THIRD RAILROAD.  (FN8)
IN RATE CASES, THE COMMISSION GENERALLY PRESCRIBES A HIGHER SCALE OF
DISTANCE RATES FOR TRAFFIC MOVING OVER A COMBINATION OF INDEPENDENT
LINES THAN IT DOES FOR GOODS CARRIED OVER A SINGLE LINE OR OVER A
PARENT-SUBSIDIARY SYSTEM.  THE DISTINCTION IS MADE BECAUSE THE LATTER
ARE EXPECTED TO RESULT IN ECONOMIES OF OPERATION WHICH SHOULD BE PASSED
ON TO THE PUBLIC.  LIVESTOCK TO, FROM, AND BETWEEN POINTS IN THE
SOUTHEAST, 101 I.C.C. 105 (1925).  FOR THE SAME REASON, SHORT OR "WEAK"
LINES ARE ALLOWED ARBITRARIES, I.E., DIFFERENTIALLY HIGHER RATES IN
ADDITION TO RATE SCALES PRESCRIBED FOR GENERAL APPLICATION, WHEREAS
SMALL RAILROADS UNDER THE "MANAGEMENT" OR "CONTROL" OF LARGER LINES ARE
NOT PERMITTED THE ADDITIONAL RATES.  RATE STRUCTURE INVESTIGATION, PART
13, SALT, 197 I.C.C. 115 (1933). 

UNLESS THE LONG HAUL OF RAILROADS, UNDER JOINT MANAGEMENT AND CONTROL
AS INTERPRETED BY THE RATE-MAKING CASES, IS PROTECTED BY SEC. 15(4),
THE ADVANTAGES WHICH THE COMMISSION ASSUMED EXISTED, I.E., ECONOMIES OF
OPERATION, WILL BE TAKEN FROM THEM.  THE VERY REASONS FOR APPLYING THE
HIGHER DISTANCE RATES AND DENYING ARBITRARIES WOULD CEASE TO EXIST. 
SUCH A RESULT, FLOWING FROM THE FAILURE TO CONSTRUE SEC. 15(4) AS
INCLUDING JOINT CONTROL, WOULD BE CLEARLY INCONSISTENT WITH COMMISSION
POLICY IN THE RATE-MAKING CASES.  THEREFORE, THE COMMISSION HAS RELIED
UPON THE SAME CRITERIA IN SEC. 15(4) CASES.  IN ALABAMA, T.&N.R. CO. V.
SOUTHERN R. CO., 148 I.C.C.  708 (1928), THE COMMISSION SPECIFICALLY
REFERRED TO ITS DEFINITION IN BLACKSHEAR, SUPRA, AND APPLIED THE
LIMITATION OF SEC. 15(4) TO THE THREE ROADS THERE INVOLVED.  SEE ALSO
GEORGIA & F.R.  CO. V. ATLANTIC COAST LINE R. CO., 191 I.C.C. 489
(1933).  IN FACT, IN SEVEN SEPARATE PROCEEDINGS INVOLVING THE S.P.&S.,
(FN9) THE COMMISSION HAS NOTED THAT FOR RATE-MAKING PURPOSES IT MUST BE
CONSIDERED AS PART OF THE NORTHERN LINES.  IN ONE OF THESE PROCEEDINGS,
WEST COAST LUMBERMEN'S ASSN. V. CHICAGO, M. & ST. P.R. CO., 129 I.C.C.
363 (1927), JOINT THROUGH RATES VIA CANADA WERE SOUGHT TO DESTINATIONS
SERVED BY THE MILWAUKEE AND THE NORTHERN LINES.  IT WAS URGED THAT THE
JOINT RATES, IF THEY WERE PRESCRIBED, SHOULD BE MADE OVER ROUTES THAT
WOULD SECURE THE LONG HAUL OF THESE RAILROADS.  THE COMMISSION REFUSED
TO ESTABLISH THE JOINT RATES VIA THE CANADIAN ROUTES, HOLDING, INTER
ALIA, THAT THE S.P.&S. "IS CONSIDERED FOR RATE-MAKING PURPOSES A PART
OF THE NORTHERN PACIFIC AND GREAT NORTHERN."  AT P. 364.    LIKEWISE,
THE CASE OF SEABOARD AIR LINE R. CO. V. CAROLINA & N.R. CO., 204 I.C.C.
416 (1934), APPLIED THE BLACKSHEAR DEFINITION TO DISCRIMINATION CASES
UNDER SEC. 3(4) OF THE ACT.  (FN10)  THE COMMISSION HELD THAT UNDER
SEC. 3(3), THE PREDECESSOR OF SEC. 3(4), THERE COULD BE NO
DISCRIMINATION WHERE THE ROADS INVOLVED WERE UNDER A COMMON MANAGEMENT
AND CONTROL.  THE COMMISSION FOUND THAT THE CAROLINA & NORTHWESTERN
OFFICIALS "DETERMINE THE POLICY TO BE ADOPTED WITH REGARD TO TRAFFIC
MATTERS LOCAL TO THAT CARRIER, BUT IN MATTERS OF COMMON INTEREST
BETWEEN THE SOUTHERN AND THE CAROLINA & NORTHWESTERN, THE POLICY
DETERMINED BY THE SOUTHERN PREVAILS.  IT IS APPARENT, THEREFORE, THAT
BOTH CARRIERS ARE OPERATED UNDER A COMMON MANAGEMENT AND CONTROL."  AT
P. 420.  ALTHOUGH NOT A SEC. 15(4) CASE, IT IS SIGNIFICANT, AS POINTED
OUT BY THE DISTRICT COURT, BECAUSE THE COMMISSION APPLIED THE
BLACKSHEAR TEST AND, UPON FINDING THE ROADS UNDER COMMON MANAGEMENT AND
CONTROL, PERMITTED THEM TO RETAIN THE LONG HAUL AS PROTECTED BY SEC.
15(4).  THE INTERRELATIONSHIP BETWEEN THE TWO SECTIONS AS APPLIED BY
THE COMMISSION INDICATES THE NECESSITY FOR THE USE OF THE SAME CRITERIA
AS TO CONTROL IN EACH. 

WE DO NOT CONSIDER THE CASES, (FN11) RELIED UPON BY THE APPELLANTS,
TO THE CONTRARY.  COMMON MANAGEMENT AND CONTROL WAS NOT ESTABLISHED. 
THEY WERE CONCERNED WITH OWNERSHIP, AS DISTINGUISHED FROM CONTROL, AND
EVEN THAT BY MORE THAN TWO RAILROADS.  THERE IS NOTHING IN THESE CASES
HOLDING THAT SUCH CONTROL CANNOT EXIST UNDER THE JOINT OWNERSHIP AND
ACTIVE MANAGEMENT OF TWO CARRIERS.  NOR DO WE FEEL THAT APPELLANTS'
OTHER COMMISSION CASES ARE APPOSITE. 

SUMMARIZING, WE FIND THAT THE COMMISSION HAS FOR MANY YEARS FOLLOWED
THE BLACKSHEAR CRITERIA AS TO WHAT CONSTITUTES "COMMON MANAGEMENT" OR
"CONTROL."  LIKEWISE, IT HAS SINCE PERMITTED SUCH MANAGEMENT AND
CONTROL TO BE JOINTLY EXERCISED BY MORE THAN ONE RAILROAD.  WE BELIEVE
THAT THE CONGRESS TOOK NOTE OF THESE CASES IN 1940 WHEN IT DECIDED NOT
"TO MAKE ANY CHANGE IN THE INTERPRETATION" OF THE LIMITATION PROVISION
OF SEC. 15(4) OF THE ACT.  THE JUDGMENT IS THEREFORE AFFIRMED. 

FN1  THE S.P.&S. SYSTEM IS COMPOSED OF THE SPOKANE, PORTLAND AND
SEATTLE RAILWAY CO. AND TWO WHOLLY OWNED SUBSIDIARIES, THE OREGON TRUNK
RAILWAY AND THE OREGON ELECTRIC RAILWAY CO. 

FN2  49 U.S.C. SEC. 15(4) PROVIDES IN PERTINENT PART: 

"IN ESTABLISHING ANY SUCH THROUGH ROUTE THE COMMISSION SHALL NOT  ...
REQUIRE ANY CARRIER BY RAILROAD, WITHOUT ITS CONSENT, TO EMBRACE IN
SUCH ROUTE SUBSTANTIALLY LESS THAN THE ENTIRE LENGTH OF ITS RAILROAD
AND OF ANY INTERMEDIATE RAILROAD OPERATED IN CONJUNCTION AND UNDER A
COMMON MANAGEMENT OR CONTROL THEREWITH, WHICH LIES BETWEEN THE TERMINI
OF SUCH PROPOSED THROUGH ROUTE  ... ." 

FN3  "A 'THROUGH ROUTE' IS AN ARRANGEMENT, EXPRESS OR IMPLIED,
BETWEEN CONNECTING RAILROADS FOR THE CONTINUOUS CARRIAGE OF GOODS FROM
THE ORIGINATING POINT ON THE LINE OF ONE CARRIER TO DESTINATION ON THE
LINE OF ANOTHER."  ST. LOUIS SOUTHWESTERN R. CO. V. UNITED STATES, 245
U.S. 136, 139, NOTE 2 (1917). 

FN4  "THE ESSENTIAL FEATURE OF A JOINT RATE IS THAT CONNECTING ROADS
HAVE AGREED OR MUTUALLY CONSENTED TO CARRY TRAFFIC FROM POINTS ON ONE
ROAD TO POINTS ON ANOTHER ROAD FOR AN AGGREGATE CHARGE WHICH IS LESS
THAN THE SUM OF THEIR LOCAL CHARGES BETWEEN THE SAME POINTS."  NEW
YORK, N.H.&H.R. CO. V. PLATT, 7 I.C.C. 323, 333 (1897). 

FN5  "IT WOULD SEEM TO BE UNREASONABLE TO EMPOWER THE COMMISSION TO
REQUIRE A RAILROAD COMPANY HAVING A LINE OF ITS OWN BETWEEN TWO
DESIGNATED TERMINI TO ALLOW A PORTION ONLY OF THAT LINE TO BE TAKEN AND
LINKED UP WITH OTHER LINES FOR THE PURPOSE OF CREATING ANOTHER THROUGH
ROUTE IN COMPETITION WITH IT, THUS DEPRIVING IT OF THE NATURAL
ADVANTAGE OF POSSESSING A DIRECT LINE BETWEEN THE TERMINI  ...  ."  S.
REP. NO. 355, 61ST CONG., 2D SESS. 10. 

FN6  49 U.S.C. SEC. 1(3)(B). 

FN7  RATES ON CHERT, CLAY, SAND, AND GRAVEL, 197 I.C.C. 215 (1933);
HUMBARD CONSTRUCTION CO. V. SOUTHERN R. CO., 161 I.C.C. 38 (1930);
JUSTICE CO. V. HOLTON INTERURBAN R. CO., 153 I.C.C.  673 (1929);
RALEIGH FREIGHT TRAFFIC BUREAU V. ATLANTIC COAST LINE R. CO., 107
I.C.C. 156 (1926); LIVESTOCK TO, FROM, AND BETWEEN POINTS IN THE
SOUTHEAST, 101 I.C.C. 105 (1925); LIVESTOCK TO, FROM, AND BETWEEN
POINTS IN THE SOUTHEAST, 91 I.C.C. 292 (1924). 

FN8  THIS GROUP OF CASES IS BOTTOMED ON CHICAGO, M. & ST. P.R. CO. V.
MINNEAPOLIS CIVIC & COMMERCE ASSN., 247 U.S. 490 (1918), WHEREIN THIS
COURT FOUND THAT TWO COMPETITIVE RAILROADS OWNING A SUBSIDIARY
COEQUALLY DID, FOR RATE PURPOSES, EACH "DIRECTLY CONTROL AND OPERATE"
THE SUBSIDIARY AND THAT THE LATTER MUST BE TREATED AS A PART OF EACH OF
THE TWO OWNING CARRIERS.  SEE DES MOINES UNION RY. SWITCHING, 231
I.C.C. 631 (1939); BLUM PACKING CO. V. SOUTHERN PACIFIC R. CO., 204
I.C.C. 93 (1934); RUSS MARKET CO. V. NORTHWESTERN PACIFIC R. CO., 171
I.C.C. 117 (1930); ERIKSEN V. ANN ARBOR R. CO., 102 I.C.C. 374 (1925);
PACIFIC LUMBER CO. V. NORTHWESTERN PACIFIC R. CO., 51 I.C.C. 738
(1918). 

FN9  HELIX MILLING CO. V. GREAT NORTHERN R. CO., 287 I.C.C. 77
(1952); PILLSBURY-ASTORIA FLOUR MILLS CO. V. GREAT NORTHERN R. CO., 198
I.C.C. 642 (1934); SPOKANE, P.&S.R. CO., 41 I.C.C. VALUATION REPORTS 1
(1932); WEST COAST LUMBERMEN'S ASSN. V. CHICAGO, M. & ST. P.R. CO., 129
I.C.C. 363 (1927); INLAND EMPIRE SHIPPERS LEAGUE V. DIRECTOR GENERAL,
59 I.C.C. 321 (1920); ASTORIA V. SPOKANE, P.&S.R. CO., 38 I.C.C.
(1916); PORTLAND CHAMBER OF COMMERCE V. OREGON RAILROAD & NAVIGATION
CO., 19 I.C.C. 265 (1910). 

FN10  49 U.S.C. SEC. 3(4) PROVIDES IN PART THAT CARRIERS "SHALL NOT
DISCRIMINATE IN THEIR RATES, FARES, AND CHARGES BETWEEN CONNECTING
LINES, OR UNDULY PREJUDICE ANY CONNECTING LINE IN THE DISTRIBUTION OF
TRAFFIC THAT IS NOT SPECIFICALLY ROUTED BY THE SHIPPER." 

FN11  MANUFACTURERS R. CO. V. AHNAPEE & W.R. CO., 172 I.C.C. 554
(1931); ABSORPTION OF SWITCHING CHARGES, 157 I.C.C. 129 (1929). 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

FOUR LINES PASS THROUGH THE SPOKANE GATEWAY TO THE WEST COAST:  THE
MILWAUKEE, THE NORTHERN PACIFIC, AND THE GREAT NORTHERN, THAT REACH
PUGET SOUND, AND THE S.P.&S., THAT REACHES PORTLAND, OREGON.  THE
"TRIANGLE" REFERRED TO BY THE COMMISSION HAS ITS APEX IN SPOKANE AND
ITS TWO BASE POINTS IN PORTLAND AND SEATTLE-TACOMA.  THE S.P.&S. IS
OWNED 50% BY THE GREAT NORTHERN AND 50% BY THE NORTHERN PACIFIC. 

THE MILWAUKEE IS AT PRESENT UNDER A DISADVANTAGE IN SHIPMENTS VIA THE
SPOKANE GATEWAY.  THE DISADVANTAGE IS NOT IN SERVICE OR FACILITIES FOR
SERVICE, BUT IN THE RATE STRUCTURE.  WHEN THE MILWAUKEE - A ROAD THAT
REACHES TO CHICAGO - WANTS TO SHIP GOODS TO PORTLAND OVER THE SHORTEST
ROUTE - THE S.P.&S. - IT MUST QUOTE COMBINATION RATES.  WHEN THE GREAT
NORTHERN AND THE NORTHERN PACIFIC MAKE THOSE SHIPMENTS, THEY GET A
PREFERRED JOINT RATE ON A THROUGH ROUTE VIA SPOKANE.  THE RESULT IS TO
"CLOSE THE SPOKANE GATEWAY IN A COMMERCIAL SENSE" SO FAR AS THE
MILWAUKEE IS CONCERNED.  300 I.C.C. 453, 457.  THE ADVANTAGE WHICH THE
S.P.&S. AFFORDS THE GREAT NORTHERN AND NORTHERN PACIFIC WAS STATED BY
THE COMMISSION IN PORTLAND CHAMBER OF COMMERCE V. OREGON R.&N. CO., 19
I.C.C. 265, 283, "IT IS USED BY THE GREAT NORTHERN AND NORTHERN PACIFIC
IN THE TRANSPORTATION OF ALL BUSINESS BETWEEN COAST AND INTERIOR POINTS
WHICH CAN BE HANDLED MORE CHEAPLY OVER IT THAN OVER THE EXISTING LINES
OF THE GREAT NORTHERN OR NORTHERN PACIFIC."  THAT IS A MONOPOLISTIC
ADVANTAGE; IT IS CONTROL OVER TRAFFIC WHICH THE TWO LINES ARE NOT
ENTITLED TO EXPLOIT TO THE EXCLUSION OF THE MILWAUKEE. 

"THROUGH ROUTES" ARE THE RULE, SEC. 1(4), AND THE MAINTENANCE OF
DISCRIMINATORY "COMBINATION RATES," THE EXCEPTION.  UNDER THE TERMS OF
SEC. 15(3), THE COMMISSION IS TO ESTABLISH THE FORMER WHENEVER
"NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST."  ONLY IS SEC. 15(4) DO
WE HAVE AN EXCEPTION TO THIS POLICY.  SINCE 1910, CONGRESS HAS
RECOGNIZED A RAILROAD'S LIMITED RIGHT NOT TO BE "SHORT-HAULED," THAT
IS, NOT TO HAVE TO CARRY OVER ITS LINES TRAFFIC ORIGINATING ON, OR
DESTINED TO, ANOTHER LINE WHEN THE ENTIRE CARRIAGE COULD AS WELL HAVE
TAKEN PLACE ON ITS OWN LINE.  HERE, THE NORTHERN LINES CLAIM THAT THEY
TOGETHER WITH THE JOINTLY OWNED S.P.&S. MAKE UP A SINGLE SYSTEM WHICH
THE MILWAUKEE WANTS TO SHORT-HAUL. 

THE QUESTION PRESENTED CONCERNS THE MEANING OF THE WORDS "COMMON
MANAGEMENT OR CONTROL" AS THEY ARE USED IN SEC. 15(4) OF THE ACT. 

FIRST.  IF THE GREAT NORTHERN AND NORTHERN PACIFIC ARE TO BE GRANTED
THE SPECIAL MONOPOLISTIC PROTECTION NOW EXTENDED, SEC. 15(4) NEEDS TO
BE REWRITTEN.  IT SAYS THAT THE COMMISSION SHALL NOT "REQUIRE ANY
CARRIER  ...  TO EMBRACE IN SUCH ROUTE SUBSTANTIALLY LESS THAN THE
ENTIRE LENGTH OF ITS RAILROAD AND OF ANY INTERMEDIATE RAILROAD OPERATED
IN CONJUNCTION AND UNDER A COMMON MANAGEMENT OR CONTROL THEREWITH." 
THE SECTION IS FRAMED IN THE SINGULAR.  WHEN THE SHORT-HAUL PROTECTION
WAS FIRST GIVEN, THE AMENDED SEC. 15 REFERRED TO "CARRIER OR CARRIERS"
SEVEN TIMES (36 STAT. 551-553) AND "LINE OR LINES" TWICE (36 STAT.
553).  SO IT SEEMS APPARENT THAT WHEN THE PLURAL WAS INTENDED, THE
PLURAL WAS USED.  SENATOR ELKINS, IN EXPLAINING THE PROVISION, SPOKE IN
THE SINGULAR:  "THE ROAD THAT INITIATES THE FREIGHT AND STARTS IT ON
ITS MOVEMENT IN INTERSTATE COMMERCE SHOULD NOT BE REQUIRED, WHERE IT IS
A LINE NOT UNREASONABLY LONG, TO TRANSFER ITS BUSINESS FROM ITS OWN
ROAD TO THAT OF A COMPETITOR, ESPECIALLY WHEN THE COMMERCE INITIATED BY
IT CAN BE AS PROMPTLY AND SAFELY TRANSPORTED FROM THE POINT OF SHIPMENT
TO THE POINT OF DESTINATION BY ITS ROAD AS BY THE LINE OF ITS
COMPETITOR."  45 CONG. REC. 3476. 

THE SENATE REPORT SPOKE OF THE SHORT-HAUL PROTECTION AS EXTENDING TO
A RAILROAD "HAVING A LINE OF ITS OWN BETWEEN TWO DESIGNATED TERMINI." 
S. REP. NO. 355, 61ST CONG., 2D SESS., P. 10.  WHILE THE TRANSPORTATION
ACT OF 1940 GREATLY EXPANDED THE MEANING OF "CONTROL," THE NEW
DEFINITION WAS NOT MADE APPLICABLE TO SEC. 15(4) BECAUSE IT WAS THOUGHT
"UNDESIRABLE TO MAKE ANY CHANGE IN THE INTERPRETATION OF PRESENT LAW"
IN THAT REGARD.  (FN1)  H.R. REP. NO. 2832, 76TH CONG., 3D SESS., P.
63. 

SECOND.  PRIOR TO THE 1940 LEGISLATION THE COMMISSION HAD HELD THAT
JOINT OWNERSHIP BY TWO OR MORE RAILROADS WAS NOT SUFFICIENT TO CREATE
"COMMON MANAGEMENT OR CONTROL" WITHIN THE MEANING OF SEC. 15(4). 
ABSORPTION OF SWITCHING CHARGES, 157 I.C.C. 129, 132; MANUFACTURERS R.
CO. V. AHNAPEE & W.R. CO., 172 I.C.C. 554, 564.  THOSE TWO CASES
INVOLVED A TERMINAL RAILROAD JOINTLY OWNED BY 15 CONNECTING ROADS.  ON
ORAL ARGUMENT COUNSEL FOR THE COMMISSION CONCEDED THAT THOSE DECISIONS
ARE OUT OF LINE WITH THE PRESENT ONE.  IF CONTROL BY 15 ROADS IS NOT
"COMMON" CONTROL WITHIN THE MEANING OF SEC. 15(4), I FAIL TO SEE HOW
CONTROL BY TWO RAILROADS IS.  (FN2)  THE OTHER CASES RELIED UPON BY THE
COURT DID NOT INVOLVE SEC. 15(4). 

CASES SUCH AS BLACKSHEAR MFG. CO. V. ATLANTIC COAST LINE R. CO., 87
I.C.C. 654, ARE IRRELEVANT.  THERE THE COMMISSION WAS CONCERNED WITH
WHAT RATES TO FIX THAT WERE "SINGLE-LINE" AND WHAT RATES THAT WERE
"JOINT-LINE."  IT DEFINED "SINGLE-LINE RATES" AS THOSE APPLICABLE OVER
"SINGLE LINES OF RAILWAY OR OVER TWO OR MORE LINES UNDER THE SAME
GENERAL MANAGEMENT AND CONTROL"; AND IT DEFINED "JOINT-LINE RATES" AS
THOSE APPLICABLE "ONLY WHEN THE LINES EMBRACED IN THE ROUTE ARE NOT
UNDER COMMON OWNERSHIP OR CONTROL."  ID., 664.  IT DEFINED THE TERM
"CARRIERS UNDER THE SAME MANAGEMENT AND CONTROL" AS CARRIERS "GENERALLY
CONTROLLED THROUGH OWNERSHIP, LEASE, OR OTHERWISE TO THE EXTENT OF
CONTROLLING TRAFFIC POLICY, EVEN THOUGH SEPARATE CORPORATE ENTITY MAY
BE MAINTAINED."  ID., 664.  "COMMON OWNERSHIP AND CONTROL" FOR RATE
MAKING PURPOSES WAS AN INNOVATION OF THE COMMISSION, NOT A STATUTORY
TERM.  THE SAME IS TRUE OF THE OTHER LINE OF RATE-MAKING CASES TO WHICH
THE COURT REFERS - THE ONES REPRESENTED BY CHICAGO, M. & ST. P.R. CO.
V. MINNEAPOLIS C.&C. ASSN., 247 U.S. 490.  THERE TWO RAILROADS OWNING A
THIRD WHICH IN TURN OWNED TERMINAL TRACKS MADE NO CHARGE FOR USE OF THE
TERMINAL AGAINST TRAFFIC MOVING OVER ITS LINES BUT DID NOT CHARGE FOR
ITS USE BY A COMPETITOR.  THIS LINE OF CASES - LIKE THOSE INVOLVING
"SINGLE-LINE" RATES - IS CONCERNED WITH JUST RATES AND RATES THAT ARE
NON-DISCRIMINATORY.  ECONOMIES OF OPERATION WILL NOT DISAPPEAR MERELY
BECAUSE A CARRIER HAS COMPETITION.  OF COURSE, A MONOPOLY POSITION MAY
MAKE AN AFFILIATED SHORT LINE MORE PROFITABLE, BUT I DO NOT THINK THAT
THAT IS THE SOLE REASON FOR DENYING SUCH SHORT LINES "ARBITRARIES." 

HAUL.  THE "SHORT-HAUL" PROTECTION NEEDS TO BE NARROWLY CONSTRUED, LEST
IT TOO END UP AS A DEVICE TO DISCRIMINATE AGAINST COMPETITIORS AND
FORECLOSE THEM FROM A MARKET.  THAT IS WHY, I THINK, IT WAS CLOSELY
CONFINED BY CONGRESS AND PUT IN THE SINGULAR NOT THE PLURAL AND NOT
EXTENDED TO GROUP ACTIVITIES OF RAILROADS SUCH AS ARE INVOLVED HERE AND
IN THE TERMINAL CASES. 

I WOULD REVERSE THE JUDGMENT BELOW AND REMAND THE CASE TO THE
COMMISSION FOR FURTHER PROCEEDINGS. 

FN1  THE COURT ADMITS THAT CONGRESS REFUSED TO BROADEN THE PROTECTION
OF SEC. 15(4) IN 1940.  YET IT SEEMS TO THINK THIS REFUSAL OF NO
RELEVANCE.  IF CONGRESS HAS REFUSED "SHORT-HAUL" PROTECTION TO
INDIRECTLY CONTROLLED LINES, IS IT TO BE LIGHTLY ASSUMED THAT THAT
PROTECTION EXTENDS TO BOTH OWNERS WHO JOINTLY CONTROL A THIRD LINE? 
FN2  IN HELIX MILLING CO. V. GREAT NORTHERN R. CO., 287 I.C.C. 77,
SHIPPERS WANTED THROUGH ROUTES AND JOINT RATES ON THE GREAT NORTHERN,
THE NORTHERN PACIFIC, AND THE S.P.&S. VIA THE SPOKANE GATEWAY.  THE
GREAT NORTHERN OBJECTED ON THE BASIS OF THE SHORT-HAUL PROTECTION
AFFORDED BY SEC. 15(4) OF THE ACT.  THE COMMISSION RECOGNIZED THAT THE
SHORT-HAUL ISSUE WAS INVOLVED AND MADE THE FINDINGS AS TO THE NEED FOR
THROUGH ROUTES ON THE ASSUMPTION THAT THE THROUGH ROUTES WOULD SHORT
HAUL THE OBJECTING ROAD.  BUT NO ANALYSIS OR DISCUSSION OF THE PRESENT
PROBLEM WAS MADE.  CF. WEST COAST LUMBERMEN'S ASSN. V. CHICAGO, M. &
ST. P.R. CO., 129 I.C.C. 363, 364.  IT SHOULD BE NOTED THAT ALABAMA,
T.&N.R. CO. V. SOUTHERN R. CO., 148 I.C.C. 708, 711, CITED BY THE
COURT, DOES NOT INVOLVE JOINT CONTROL UNDER SEC. 15(4). 
..END :




PAYNE V. MADIGAN 366 U.S. 761 


NO. 180.  ARGUED FEBRUARY 27, 1961 - DECIDED JUNE 5, 1961* - 274 F.2D
702, 698, AFFIRMED BY AN EQUALLY DIVIDED COURT. 

*TOGETHER WITH NO. 184, YOUNG V. UNITED STATES, ON CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 


PAYNE V. MADIGAN, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENTS ARE AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE FRANKFURTHER TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THESE CASES. 
..END :











GIANT TIGER DRUGS, INC., V. OHIO 366 U.S. 762 


NO. 807.  DECIDED JUNE 5, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
REPORTED BELOW: 171 OHIO ST. 294, 170 N.E.2D 71


GIANT TIGER DRUGS, INC., V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :













LOCAL 553, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA V. NATIONAL LABOR RELATIONS BOARD 366
U.S. 763 


NO. 844.  DECIDED JUNE 5, 1961 - CERTIORARI GRANTED; JUDGMENT VACATED;
AND CASE REMANDED.  REPORTED BELOW:  284 F.2D 861. 


LOCAL 553, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA, V. NATIONAL LABOR RELATIONS BOARD. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
VACATED.  THE CASE IS REMANDED TO THE UNITED STATES COURT OF APPEALS
WITH INSTRUCTIONS TO REMAND TO THE NATIONAL LABOR RELATIONS BOARD FOR
CONSIDERATION IN LIGHT OF LOCAL 357, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, V. NATIONAL
LABOR RELATIONS BOARD, 365 U.S. 667. 
..END :









MOHEGAN INTERNATIONAL CORP. V. NEW YORK 366 U.S. 764 


NO. 902.  DECIDED JUNE 5, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
REPORTED BELOW: 9 N.Y.2D 69, 172 N.E.2D 546


MOHEGAN INTERNATIONAL CORPORATION V. CITY OF NEW YORK ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :













SIMCOX V. MADIGAN 366 U.S. 765 


NO. 699, MISC.  DECIDED JUNE 5, 1961 - CERTIORARI GRANTED; JUDGMENT
REVERSED; AND CASE REMANDED. 


SIMCOX V. MADIGAN, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED AND THE
CASE REMANDED FOR A HEARING AS SUGGESTED BY THE SOLICITOR GENERAL. 
ELLIS V. UNITED STATES, 356 U.S. 674. 
..END :














COMMUNIST PARTY OF THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL
BOARD 367 U.S. 1 


NO. 12.  ARGUED OCTOBER 11-12, 1960 - DECIDED JUNE 5, 1961 - 107 U.S.
APP. D.C. 279, 277 F.2D 78, AFFIRMED. 


AFTER VERY EXTENSIVE HEARINGS UNDER THE SUBVERSIVE ACTIVITIES CONTROL
ACT OF 1950, THE BOARD IN 1953 FOUND THAT THE COMMUNIST PARTY OF THE
UNITED STATES WAS A "COMMUNIST-ACTION ORGANIZATION," WITHIN THE MEANING
OF THE ACT, AND ORDERED IT TO REGISTER AS SUCH UNDER SEC. 7.  A REMAND
OF THE CASE BY THIS COURT, 351 U.S. 115, AND A SECOND REMAND BY THE
COURT OF APPEALS LED TO FURTHER PROCEEDINGS BEFORE THE BOARD, INVOLVING
RULINGS ON ADDITIONAL PROCEDURAL POINTS AND TWO RECONSIDERATIONS OF THE
ENTIRE RECORD, FOLLOWING WHICH THE BOARD ADHERED TO ITS CONCLUSION. 
AFTER DENIAL OF MOTIONS MADE BY THE PARTY UNDER SEC. 14(A) AND AFTER
REVIEW ON THE MERITS, THE COURT OF APPEALS AFFIRMED THE BOARD'S ORDER. 
HELD:  THE JUDGMENT IS AFFIRMED.  PP. 4-115. 

1.  CERTAIN PROCEDURAL RULINGS MADE BY THE BOARD AND THE COURT OF
APPEALS DO NOT CONSTITUTE PREJUDICIAL ERRORS REQUIRING THAT THIS
PROCEEDING BE REMANDED TO THE BOARD AGAIN.  PP. 22-35. 

(A)  A WITNESS HAVING BEEN CROSS-EXAMINED AT LENGTH FOLLOWING HIS
DIRECT TESTIMONY DURING THE INITIAL HEARING, AND THE BOARD HAVING
STRICKEN HIS TESTIMONY IN TWO SUBJECTS ABOUT WHICH RECORDINGS OF
INTERVIEWS WITH HIM WERE DISCOVERED AND PRODUCED AFTER REMAND OF THE
CASE, IT CANNOT BE SAID ON THIS RECORD THAT THE BOARD ABUSED ITS
DISCRETION IN REFUSING TO STRIKE ALL OF HIS TESTIMONY BECAUSE ILL
HEALTH PREVENTED HIM FROM SUBMITTING TO FURTHER CROSS-EXAMINATION, WHEN
THE COURT OF APPEALS SUSTAINED THE BOARD'S RULING.  PP. 22-29. 

(B)  BY FAILING TO RAISE THE QUESTION IN ITS PREVIOUS PETITION FOR
CERTIORARI IN THIS COURT, THE PARTY ABANDONED ITS CLAIM OF ERROR IN THE
BOARD'S DENIAL OF ITS MOTION TO REQUIRE PRODUCTION OF CERTAIN MEMORANDA
PREPARED BY A GOVERNMENT WITNESS, AND THE PARTY COULD NOT RESURRECT
THAT CLAIM BY REPEATING THE MOTION BEFORE THE BOARD AFTER THIS COURT'S
REMAND OF THE CASE.  PP. 29-32. 

(C)  IT CANNOT BE SAID THAT THE COURT OF APPEALS ABUSED ITS
DISCRETION IN DENYING AS UNTIMELY MOTIONS MADE BY THE PARTY UNDER SEC.
14(A) MORE THAN 5 YEARS AFTER TERMINATION OF THE INITIAL HEARINGS FOR
ORDERS REQUIRING PRODUCTION OF DOCUMENTS IN CONNECTION WITH THE
TESTIMONY OF GOVERNMENT WITNESSES.  PP. 32-35. 

2.  THE BOARD AND THE COURT OF APPEALS DID NOT ERR IN THEIR
CONSTRUCTION OF THE ACT OR IN THEIR APPLICATION OF IT TO THE PARTY ON
THIS RECORD.  PP. 35-69. 

(A)  IN CONCLUDING THAT THE PARTY WAS "SUBSTANTIALLY DIRECTED,
DOMINATED, OR CONTROLLED" BY THE SOVIET UNION, WITHIN THE MEANING OF
SEC. 3(3), THE BOARD AND THE COURT OF APPEALS DID NOT ERR EITHER IN
THEIR CONSTRUCTION OF THE ACT OR IN FINDING THAT THE FACTS SHOWN BY THE
RECORD BRING THE PARTY WITHIN IT.  PP. 36-55. 

(B)  IN CONCLUDING THAT THE PARTY "OPERATES PRIMARILY TO ADVANCE THE
OBJECTIVES OF THE  ...  WORLD COMMUNIST MOVEMENT," WITHIN THE MEANING
OF SEC. 3(3), THE BOARD AND THE COURT OF APPEALS DID NOT ERR EITHER IN
THEIR CONSTRUCTION OF THE ACT OR IN FINDING THAT THE FACTS SHOWN BY
THIS RECORD BRING THE PARTY WITHIN IT.  PP. 55-56. 

(C)  THE BOARD DID NOT MISINTERPRET OR MISAPPLY THE REQUIREMENT OF
SEC. 13(E) THAT, IN DETERMINING WHETHER ANY ORGANIZATION IS A COMMUNIST
ACTION ORGANIZATION, IT SHALL "TAKE INTO CONSIDERATION" THE "EXTENT TO
WHICH" SUCH ORGANIZATION ENGAGES IN CERTAIN CLASSES OF CONDUCT
SPECIFIED THEREIN; NOR DID IT ABUSE ITS DISCRETION IN ITS RULINGS ON
THE ADMISSIBILITY OF EVIDENCE AND OBJECTIONS TO QUESTIONS ASKED ON
CROSS-EXAMINATION IN THIS CONNECTION.  PP.  56-66. 

(D)  THE ACTION OF THE COURT OF APPEALS IN STRIKING ONE SUBSIDIARY
FINDING OF THE BOARD DID NOT REQUIRE ANOTHER REMAND OF THE PROCEEDINGS
TO THE BOARD.  PP. 66-67. 

(E)  THOUGH THE BOARD'S DESCRIPTION OF "THE WORLD COMMUNIST MOVEMENT"
TO WHICH ITS FINDINGS RELATED THE PARTY DID NOT DUPLICATE IN ALL
DETAILS THE DESCRIPTION CONTAINED IN SEC. 2 OF THE ACT, IT WAS THE ONE
MEANT BY CONGRESS.  PP. 68-69. 

(F)  THE BOARD AND THE COURT BELOW DID NOT ERR IN RELYING ON EVIDENCE
OF THE CONDUCT IN WHICH THE PARTY ENGAGED PRIOR TO THE ENACTMENT OF THE
ACT TO SUPPORT THEIR CONCLUSION THAT IT IS PRESENTLY A COMMUNIST-ACTION
ORGANIZATION.  P. 69. 

(G)  THE COURT OF APPEALS HAVING THRICE EXAMINED THE EVIDENCE ADDUCED
BEFORE THE BOARD AND HAVING HELD THAT THE BOARD'S CONCLUSIONS WERE
SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, THIS COURT WILL NOT MAKE
AN INDEPENDENT REAPPRAISAL OF THE EVIDENCE.  P. 69. 

3.  SINCE THE ONLY ACTION TAKEN SO FAR AGAINST THE PARTY UNDER THE
ACT WAS TO ORDER IT TO REGISTER UNDER SEC. 7, AND THE CONSEQUENCES
WHICH WILL ENSUE WHEN THE ORDER BECOMES FINAL DEPEND UPON ACTIONS TO BE
TAKEN THEREAFTER, THE ONLY CONSTITUTIONAL ISSUES NOW PROPERLY BEFORE
THIS COURT PERTAIN TO THE CONSTITUTIONALITY OF THE REGISTRATION
REQUIREMENT, AS APPLIED IN THIS PROCEEDING.  ISSUES RAISED AS TO THE
CONSTITUTIONALITY OF OTHER PROVISIONS OF THE ACT PURPORTING TO REGULATE
OR PROHIBIT CONDUCT OF REGISTERED ORGANIZATIONS AND THEIR MEMBERS OR
OTHERWISE AFFECTING THEIR RIGHTS WERE PREMATURELY RAISED AND WILL NOT
BE CONSIDERED AT THIS TIME.  ELECTRIC BOND & SHARE CO. V. SECURITIES &
EXCHANGE COMM'N, 303 U.S. 419.  PP. 70-81. 

4.  NOTWITHSTANDING THE POSSIBLE CONSEQUENCES OF REGISTRATION, THE
REGISTRATION REQUIREMENTS OF SEC. 7 DO NOT CONSTITUTE A BILL OF
ATTAINDER WITHIN THE MEANING OF ART. I, SEC. 9, CL. 3 OF THE
CONSTITUTION.  PP. 82-88. 

5.  THE REGISTRATION REQUIREMENTS OF SEC. 7 (INCLUDING THE LISTING OF
THE NAMES, ALIASES AND ADDRESSES OF THE FOREIGN-DOMINATED
ORGANIZATION'S OFFICERS AND MEMBERS AND THE LISTING OF ALL PRINTING
PRESSES IN THE POSSESSION AND CONTROL OF THE ORGANIZATION OR ITS
MEMBERS), AS HERE APPLIED, DO NOT CONSTITUTE A RESTRAINT OF FREEDOM OF
EXPRESSION AND ASSOCIATION IN VIOLATION OF THE FIRST AMENDMENT. 
N.A.A.C.P. V. ALABAMA, 357 U.S. 449; BATES V. LITTLE ROCK, 361 U.S.
516; SHELTON V. TUCKER, 364 U.S. 479, DISTINGUISHED.  PP. 88-105. 

6.  THE CLAIM THAT THE PROVISIONS OF SEC. 7 REQUIRING OFFICERS OF THE
PARTY TO SIGN AND FILE REGISTRATION STATEMENTS FOR IT SUBJECTS THEM TO
SELF-INCRIMINATION FORBIDDEN BY THE FIFTH AMENDMENT IS RAISED
PREMATURELY AND WILL NOT BE CONSIDERED AT THIS TIME.  PP. 105-110. 

7.  THE ACT DOES NOT OFFEND THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT BY PREDETERMINING LEGISLATIVELY FACTS UPON WHICH THE
APPLICATION OF THE REGISTRATION REQUIREMENTS TO THE COMMUNIST PARTY
DEPENDS.  PP. 110-115. 

COMMUNIST PARTY OF THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL
BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING PURSUANT TO SEC. 14(A) OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT OF 1950 TO REVIEW AN ORDER OF THE SUBVERSIVE
ACTIVITIES CONTROL BOARD REQUIRING THE COMMUNIST PARTY OF THE UNITED
STATES TO REGISTER AS A COMMUNIST-ACTION ORGANIZATION UNDER SEC. 7 OF
THE ACT.  THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA HAS AFFIRMED THE BOARD'S REGISTRATION ORDER.  BECAUSE
IMPORTANT QUESTIONS OF CONSTRUCTION AND CONSTITUTIONALITY OF THE
STATUTE WERE RAISED BY THE PARTY'S PETITION FOR CERTIORARI, WE BROUGHT
THE CASE HERE.  361 U.S. 951. 

THE SUBVERSIVE ACTIVITIES CONTROL ACT IS TITLE I OF THE INTERNAL
SECURITY ACT OF 1950, 64 STAT. 987, 50 U.S.C. SEC. 781 ET SEQ. IT HAS
BEEN AMENDED, PRINCIPALLY BY THE COMMUNIST CONTROL ACT OF 1954, 68
STAT. 775, AND CERTAIN OF ITS PROVISIONS HAVE BEEN CARRIED FORWARD IN
STAT. 163, 8 U.S.C.  SECS. 1182, 1251, 1424, 1451.  A BRIEF OUTLINE OF
ITS STRUCTURE, IN PERTINENT PART, WILL FRAME THE ISSUES FOR DECISION. 

ADDUCED BEFORE VARIOUS CONGRESSIONAL COMMITTEES.  THE FIRST OF THESE
IS: 

"THERE EXISTS A WORLD COMMUNIST MOVEMENT WHICH, IN ITS ORIGINS, ITS
DEVELOPMENT, AND ITS PRESENT PRACTICE, IS A WORLD-WIDE REVOLUTIONARY
MOVEMENT WHOSE PURPOSE IT IS, BY TREACHERY, DECEIT, INFILTRATION INTO
OTHER GROUPS (GOVERNMENTAL AND OTHERWISE), ESPIONAGE, SABOTAGE,
TERRORISM, AND ANY OTHER MEANS DEEMED NECESSARY, TO ESTABLISH A
COMMUNIST TOTALITARIAN DICTATORSHIP IN THE COUNTRIES THROUGHOUT THE
WORLD THROUGH THE MEDIUM OF A WORLD-WIDE COMMUNIST ORGANIZATION." 

THE CHARACTERISTICS OF A "TOTALITARIAN DICTATORSHIP," AS SET FORTH IN
SUBSECTIONS (2) AND (3) ARE THE EXISTENCE OF A SINGLE, DICTATORIAL
POLITICAL PARTY SUBSTANTIALLY IDENTIFIED WITH THE GOVERNMENT OF THE
COUNTRY IN WHICH IT EXISTS, THE SUPPRESSION OF ALL OPPOSITION TO THE
PARTY IN POWER, THE SUBORDINATION OF THE RIGHTS OF THE INDIVIDUAL TO
THE STATE, AND THE DENIAL OF FUNDAMENTAL RIGHTS AND LIBERTIES
CHARACTERISTIC OF A REPRESENTATIVE FORM OF GOVERNMENT.  SUBSECTION (4)
FINDS THAT THE DIRECTION AND CONTROL OF THE "WORLD COMMUNIST MOVEMENT"
IS VESTED IN AND EXERCISED BY THE COMMUNIST DICTATORSHIP OF A FOREIGN
COUNTRY; AND SUBSECTION (5), THAT THE COMMUNIST DICTATORSHIP OF THIS
FOREIGN COUNTRY, IN FURTHERING THE PURPOSES OF THE WORLD COMMUNIST
MOVEMENT, ESTABLISHES AND UTILIZES IN VARIOUS COUNTRIES ACTION
ORGANIZATIONS WHICH ARE NOT FREE AND INDEPENDENT ORGANIZATIONS, BUT ARE
DIRECTED, AND SUBJECT TO THE DISCIPLINE OF THE COMMUNIST DICTATORSHIP
OF THE SAME FOREIGN COUNTRY.  SUBSECTION (6) SETS FORTH THAT: 

"THE COMMUNIST ACTION ORGANIZATIONS SO ESTABLISHED AND UTILIZED IN
VARIOUS COUNTRIES, ACTING UNDER SUCH CONTROL, DIRECTION, AND
DISCIPLINE, ENDEAVOR TO CARRY OUT THE OBJECTIVES OF THE WORLD COMMUNIST
MOVEMENT BY BRINGING ABOUT THE OVERTHROW OF EXISTING GOVERNMENTS BY ANY
AVAILABLE MEANS, INCLUDING FORCE IF NECESSARY, AND SETTING UP COMMUNIST
TOTALITARIAN DICTATORSHIPS WHICH WILL BE SUBSERVIENT TO THE MOST
POWERFUL EXISTING COMMUNIST TOTALITARIAN DICTATORSHIP.  ALTHOUGH SUCH
ORGANIZATIONS USUALLY DESIGNATE THEMSELVES AS POLITICAL PARTIES, THEY
ARE IN FACT CONSTITUENT ELEMENTS OF THE WORLD-WIDE COMMUNIST MOVEMENT
AND PROMOTE THE OBJECTIVES OF SUCH MOVEMENT BY CONSPIRATORIAL AND
COERCIVE TACTICS, INSTEAD OF THROUGH THE DEMOCRATIC PROCESSES OF A FREE
ELECTIVE SYSTEM OR THROUGH THE FREEDOM-PRESERVING MEANS EMPLOYED BY A
POLITICAL PARTY WHICH OPERATES AS AN AGENCY BY WHICH PEOPLE GOVERN
THEMSELVES." 

IN SUBSECTION (7) IT IS FOUND THAT THE COMMUNIST ORGANIZATIONS THUS
DESCRIBED ARE ORGANIZED ON A SECRET CONSPIRATORIAL BASIS AND OPERATE TO
A SUBSTANTIAL EXTENT THROUGH "COMMUNIST-FRONT" ORGANIZATIONS, IN MOST
INSTANCES CREATED OR USED SO AS TO CONCEAL THEIR TRUE CHARACTER AND
PURPOSE, WITH THE RESULT THAT THE "FRONTS" ARE ABLE TO OBTAIN SUPPORT
FROM PERSONS WHO WOULD NOT EXTEND THEIR SUPPORT IF THEY KNEW THE NATURE
OF THE ORGANIZATIONS WITH WHICH THEY DEALT.  CONGRESS MAKES OTHER
FINDINGS:  THAT THE MOST POWERFUL EXISTING COMMUNIST DICTATORSHIP HAS
CAUSED THE ESTABLISHMENT IN NUMEROUS FOREIGN COUNTRIES OF COMMUNIST
TOTALITARIAN DICTATORSHIPS, AND THREATENS TO ESTABLISH SUCH
DICTATORSHIPS IN STILL OTHER COUNTRIES (10); THAT COMMUNIST AGENTS HAVE
DEVISED RUTHLESS ESPIONAGE AND SABOTAGE TACTICS SUCCESSFULLY CARRIED
OUT IN EVASION OF EXISTING LAW (11); THAT THE COMMUNIST NETWORK IN THE
UNITED STATES IS INSPIRED AND CONTROLLED IN LARGE PART BY FOREIGN
AGENTS WHO ARE SENT IN UNDER VARIOUS GUISES (12); THAT INTERNATIONAL
TRAVEL IS PREREQUISITE FOR THE CARRYING ON OF ACTIVITIES IN FURTHERANCE
OF THE COMMUNIST MOVEMENT'S PURPOSES (8); THAT COMMUNISTS HAVE
INFILTRATED THE UNITED STATES BY PROCURING NATURALIZATION FOR DISLOYAL
ALIENS (14); THAT UNDER OUR PRESENT IMMIGRATION LAWS, MANY DEPORTABLE
ALIENS OF THE SUBVERSIVE, CRIMINAL OR IMMORAL CLASSES ARE FREE TO ROAM
THE COUNTRY WITHOUT SUPERVISION OR CONTROL (13).  SUBSECTION (9) FINDS
THAT IN THE UNITED STATES INDIVIDUALS WHO KNOWINGLY PARTICIPATE IN THE
WORLD COMMUNIST MOVEMENT IN EFFECT TRANSFER THEIR ALLEGIANCE TO THE
FOREIGN COUNTRY IN WHICH IS VESTED THE DIRECTION AND CONTROL OF THE
WORLD COMMUNIST MOVEMENT.  FINALLY, IN SEC. 2(15), CONGRESS CONCLUDES
THAT: 

"THE COMMUNIST MOVEMENT IN THE UNITED STATES IS AN ORGANIZATION
NUMBERING THOUSANDS OF ADHERENTS, RIGIDLY AND RUTHLESSLY DISCIPLINED. 
AWAITING AND SEEKING TO ADVANCE A MOMENT WHEN THE UNITED STATES MAY BE
SO FAR EXTENDED BY FOREIGN ENGAGEMENTS, SO FAR DIVIDED IN COUNSEL, OR
SO FAR IN INDUSTRIAL OR FINANCIAL STRAITS, THAT OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE MAY SEEM POSSIBLE
OF ACHIEVEMENT, IT SEEKS CONVERTS FAR AND WIDE BY AN EXTENSIVE SYSTEM
OF SCHOOLING AND INDOCTRINATION.  SUCH PREPARATIONS BY COMMUNIST
ORGANIZATIONS IN OTHER COUNTRIES HAVE AIDED IN SUPPLANTING EXISTING
GOVERNMENTS.  THE COMMUNIST ORGANIZATION IN THE UNITED STATES, PURSUING
ITS STATED OBJECTIVES, THE RECENT SUCCESSES OF COMMUNIST METHODS IN
OTHER COUNTRIES, AND THE NATURE AND CONTROL OF THE WORLD COMMUNIST
MOVEMENT ITSELF, PRESENT A CLEAR AND PRESENT DANGER TO THE SECURITY OF
THE UNITED STATES AND TO THE EXISTENCE OF FREE AMERICAN INSTITUTIONS,
AND MAKE IT NECESSARY THAT CONGRESS, IN ORDER TO PROVIDE FOR THE COMMON
DEFENSE, TO PRESERVE THE SOVEREIGNTY OF THE UNITED STATES AS AN
INDEPENDENT NATION, AND TO GUARANTEE TO EACH STATE A REPUBLICAN FORM OF
GOVERNMENT, ENACT APPROPRIATE LEGISLATION RECOGNIZING THE EXISTENCE OF
SUCH WORLD-WIDE CONSPIRACY AND DESIGNED TO PREVENT IT FROM
ACCOMPLISHING ITS PURPOSE IN THE UNITED STATES." 

PURSUANT TO THESE FINDINGS, SEC. 7(A) OF THE ACT REQUIRES THE
REGISTRATION WITH THE ATTORNEY GENERAL, ON A FORM PRESCRIBED BY HIM BY
REGULATIONS, OF ALL COMMUNIST-ACTION ORGANIZATIONS.  A COMMUNIST-ACTION
ORGANIZATION IS DEFINED BY SEC. 3(3) AS: 

"(A)  ANY ORGANIZATION IN THE UNITED STATES (OTHER THAN A DIPLOMATIC
REPRESENTATIVE OR MISSION OF A FOREIGN GOVERNMENT ACCREDITED AS SUCH BY
THE DEPARTMENT OF STATE) WHICH (I) IS SUBSTANTIALLY DIRECTED,
DOMINATED, OR CONTROLLED BY THE FOREIGN GOVERNMENT OR FOREIGN
ORGANIZATION CONTROLLING THE WORLD COMMUNIST MOVEMENT REFERRED TO IN
OBJECTIVES OF SUCH WORLD COMMUNIST MOVEMENT AS REFERRED TO IN SECTION 2
OF THIS TITLE; AND: 

"(B)  ANY SECTION, BRANCH, FRACTION, OR CELL OF ANY ORGANIZATION
DEFINED IN SUBPARAGRAPH (A) OF THIS PARAGRAPH WHICH HAS NOT COMPLIED
WITH THE REGISTRATION REQUIREMENTS OF THIS TITLE." 

REGISTRATION MUST BE MADE WITHIN THIRTY DAYS AFTER THE ENACTMENT OF
THE ACT, OR, IN THE CASE OF AN ORGANIZATION WHICH BECOMES A COMMUNIST
ACTION ORGANIZATION AFTER ENACTMENT, WITHIN THIRTY DAYS OF THE DATE
UPON WHICH IT BECOMES SUCH AN ORGANIZATION; IN THE CASE OF AN
ORGANIZATION WHICH IS ORDERED TO REGISTER BY THE SUBVERSIVE ACTIVITIES
CONTROL BOARD, REGISTRATION MUST TAKE PLACE WITHIN THIRTY DAYS OF THE
DATE UPON WHICH THE BOARD'S ORDER BECOMES FINAL.  SEC. 7(C). 
REGISTRATION IS TO BE ACCOMPANIED BY A REGISTRATION STATEMENT, WHICH
MUST CONTAIN THE NAME OF THE ORGANIZATION AND THE ADDRESS OF ITS
PRINCIPAL OFFICE; THE NAMES AND ADDRESSES OF ITS PRESENT OFFICERS AND
OF INDIVIDUALS WHO HAVE BEEN ITS OFFICERS WITHIN THE PAST TWELVE
MONTHS, WITH A DESIGNATION OF THE OFFICE HELD BY EACH AND A BRIEF
STATEMENT OF THE FUNCTIONS AND DUTIES OF EACH; AN ACCOUNTING OF ALL
MONEYS RECEIVED AND EXPENDED BY THE ORGANIZATION DURING THE PAST TWELVE
MONTHS, INCLUDING THE SOURCES FROM WHICH THE MONEYS WERE RECEIVED AND
THE PURPOSES FOR WHICH THEY WERE EXPENDED; THE NAME AND ADDRESS OF EACH
INDIVIDUAL WHO WAS A MEMBER DURING THE PAST TWELVE MONTHS; IN THE CASE
OF ANY OFFICER OR MEMBER REQUIRED TO BE LISTED AND WHO USES OR HAS USED
MORE THAN ONE NAME, EACH NAME BY WHICH HE IS OR HAS BEEN KNOWN; AND A
LISTING OF ALL PRINTING PRESSES AND MACHINES AND ALL PRINTING DEVICES
WHICH ARE IN THE POSSESSION, CUSTODY, OWNERSHIP, OR CONTROL OF THE
ORGANIZATION OR ITS OFFICERS, MEMBERS, AFFILIATES, ASSOCIATES, OR
GROUPS IN WHICH IT OR ITS OFFICERS OR MEMBERS HAVE AN INTEREST.  SEC.
7(D).  ONCE AN ORGANIZATION HAS REGISTERED, IT MUST FILE AN ANNUAL
REPORT CONTAINING THE SAME INFORMATION AS IS REQUIRED IN THE
REGISTRATION STATEMENT.  SEC. 7(E).  A REGISTERED COMMUNIST-ACTION
ORGANIZATION MUST KEEP ACCURATE RECORDS AND ACCOUNTS OF ALL MONEYS
RECEIVED AND EXPENDED, AND OF THE NAMES AND ADDRESSES OF ITS MEMBERS
AND OF PERSONS WHO ACTIVELY PARTICIPATE IN ITS ACTIVITIES.  SEC. 7(F). 

ORGANIZATIONS, DEFINED AS THOSE SUBSTANTIALLY DIRECTED, DOMINATED, OR
CONTROLLED BY A COMMUNIST-ACTION ORGANIZATION AND PRIMARILY OPERATED
FOR THE PURPOSE OF GIVING AID AND SUPPORT TO A COMMUNIST-ACTION
ORGANIZATION, A COMMUNIST FOREIGN GOVERNMENT, OR THE WORLD COMMUNIST
MOVEMENT.  SEC. 3(4).  THE PROCEDURES AND REQUIREMENTS OF REGISTRATION
FOR COMMUNIST FRONTS ARE IDENTICAL WITH THOSE FOR COMMUNIST-ACTION
ORGANIZATIONS, EXCEPT THAT FRONTS NEED NOT LIST THEIR NON-OFFICER
MEMBERS.  (FN1)  IN CASE OF THE FAILURE OF ANY ORGANIZATION TO
REGISTER, OR TO FILE A REGISTRATION STATEMENT OR ANNUAL REPORT AS
REQUIRED BY THE ACT, IT BECOMES THE DUTY OF THE EXECUTIVE OFFICER, THE
SECRETARY, AND SUCH OTHER OFFICERS OF THE ORGANIZATION AS THE ATTORNEY
GENERAL BY REGULATIONS PRESCRIBES, TO REGISTER FOR THE ORGANIZATION OR
TO FILE THE STATEMENT OR REPORT.  SEC. 7(H).  ANY INDIVIDUAL WHO IS OR
BECOMES A MEMBER OF A REGISTERED COMMUNIST-ACTION ORGANIZATION WHICH HE
KNOWS TO BE REGISTERED AS SUCH BUT TO HAVE FAILED TO LIST HIS NAME AS A
MEMBER IS REQUIRED TO REGISTER HIMSELF WITHIN SIXTY DAYS AFTER HE
OBTAINS SUCH KNOWLEDGE; AND ANY INDIVIDUAL WHO IS OR BECOMES A MEMBER
OF AN ORGANIZATION CONCERNING WHICH THERE IS IN EFFECT A FINAL ORDER OF
THE SUBVERSIVE ACTIVITIES CONTROL BOARD REQUIRING THAT IT REGISTER AS A
COMMUNIST-ACTION ORGANIZATION, BUT WHICH HAS NOT SO REGISTERED ALTHOUGH
MORE THAN THIRTY DAYS HAVE ELAPSED SINCE THE ORDER BECAME FINAL, IS
REQUIRED TO REGISTER HIMSELF WITHIN THIRTY DAYS OF BECOMING A MEMBER OR
WITHIN SIXTY DAYS AFTER THE REGISTRATION ORDER BECOMES FINAL, WHICHEVER
IS LATER.  SEC. 8.  CRIMINAL PENALTIES ARE IMPOSED UPON ORGANIZATIONS,
OFFICERS AND INDIVIDUALS WHO FAIL TO REGISTER OR TO FILE STATEMENTS AS
REQUIRED:  FINE OF NOT MORE THAT $10,000 FOR EACH OFFENSE BY AN
ORGANIZATION; FINE OF NOT MORE THAN $10,000 OR IMPRISONMENT FOR NOT
MORE THAN FIVE YEARS OR BOTH FOR EACH OFFENSE BY AN OFFICER OR
INDIVIDUAL; EACH DAY OF FAILURE TO REGISTER CONSTITUTING A SEPARATE
OFFENSE.  INDIVIDUALS WHO IN A REGISTRATION STATEMENT OR ANNUAL REPORT
WILLFULLY MAKE ANY FALSE STATEMENT, OR WILLFULLY OMIT ANY FACT REQUIRED
TO BE STATED OR WHICH IS NECESSARY TO MAKE ANY INFORMATION GIVEN NOT
MISLEADING, ARE SUBJECT TO A LIKE PENALTY.  SEC. 15. 

THE ATTORNEY GENERAL IS REQUIRED BY SEC. 9 TO KEEP IN THE DEPARTMENT
OF JUSTICE SEPARATE REGISTERS OF COMMUNIST-ACTION AND COMMUNIST-FRONT
ORGANIZATIONS, CONTAINING THE NAMES AND ADDRESSES OF SUCH
ORGANIZATIONS, THEIR REGISTRATION STATEMENTS AND ANNUAL REPORTS, AND,
IN THE CASE OF COMMUNIST-ACTION ORGANIZATIONS, THE REGISTRATION
STATEMENTS OF INDIVIDUAL MEMBERS.  THESE REGISTERS ARE TO BE OPEN FOR
PUBLIC INSPECTION.  THE ATTORNEY GENERAL MUST SUBMIT A YEARLY REPORT TO
THE PRESIDENT AND TO CONGRESS INCLUDING THE NAMES AND ADDRESSES OF
REGISTERED ORGANIZATIONS AND THEIR LISTED MEMBERS.  HE IS REQUIRED TO
PUBLISH IN THE FEDERAL REGISTER THE FACT THAT ANY ORGANIZATION HAS
REGISTERED AS A COMMUNIST-ACTION OR COMMUNIST-FRONT ORGANIZATION, AND
SUCH PUBLICATION CONSTITUTES NOTICE TO ALL MEMBERS OF THE REGISTRATION
OF THE ORGANIZATION.    WHENEVER THE ATTORNEY GENERAL HAS REASON TO
BELIEVE THAT ANY ORGANIZATION WHICH HAS NOT REGISTERED IS AN
ORGANIZATION OF A KIND REQUIRED TO REGISTER, OR THAT ANY INDIVIDUAL WHO
HAS NOT REGISTERED IS REQUIRED TO REGISTER, HE SHALL PETITION THE
SUBVERSIVE ACTIVITIES CONTROL BOARD FOR AN ORDER THAT THE ORGANIZATION
OR INDIVIDUAL REGISTER IN THE MANNER PROVIDED BY THE ACT.  SECS. 12,
13(A).  ANY ORGANIZATION OR ANY INDIVIDUAL REGISTERED, OR ANY
INDIVIDUAL LISTED IN ANY REGISTRATION STATEMENT WHO DENIES THAT HE
HOLDS OFFICE OR MEMBERSHIP IN THE REGISTERED ORGANIZATION AND WHOM THE
ATTORNEY GENERAL, UPON PROPER REQUEST, HAS FAILED TO STRIKE FROM THE
REGISTER, MAY, PURSUANT TO DESIGNATED PROCEDURES, FILE WITH THE
SUBVERSIVE ACTIVITIES CONTROL BOARD A PETITION FOR CANCELLATION OF
REGISTRATION OR OTHER APPROPRIATE RELIEF.  SEC. 13(B). 

THE BOARD, WHOSE ORGANIZATION AND PROCEDURE ARE PRESCRIBED, SECS. 12,
13(D), 16, IS EMPOWERED TO HOLD HEARINGS (WHICH SHALL BE PUBLIC), TO
EXAMINE WITNESSES AND RECEIVE EVIDENCE, AND TO COMPEL THE ATTENDANCE
AND TESTIMONY OF WITNESSES AND THE PRODUCTION OF DOCUMENTS RELEVANT TO
THE MATTER UNDER INQUIRY.  SEC. 13(C), (D).  IF AFTER HEARING THE BOARD
DETERMINES THAT AN ORGANIZATION IS A COMMUNIST-ACTION OR COMMUNIST
FRONT ORGANIZATION OR THAT AN INDIVIDUAL IS A MEMBER OF A COMMUNIST
ACTION ORGANIZATION, IT SHALL MAKE A REPORT IN WRITING AND SHALL ISSUE
AN ORDER REQUIRING THE ORGANIZATION OR INDIVIDUAL TO REGISTER OR
DENYING ITS OR HIS PETITION FOR RELIEF.  SEC. 13(G), (J).  IF THE BOARD
DETERMINES THAT AN ORGANIZATION IS NOT A COMMUNIST-ACTION OR A
COMMUNIST-FRONT ORGANIZATION OR THAT AN INDIVIDUAL IS NOT A MEMBER OF A
COMMUNIST-ACTION ORGANIZATION, IT SHALL MAKE A REPORT IN WRITING AND
ISSUE AN ORDER DENYING THE ATTORNEY GENERAL'S PETITION FOR A
REGISTRATION ORDER, OR CANCELING THE REGISTRATION OF THE ORGANIZATION
OR THE INDIVIDUAL, OR STRIKING THE NAME OF THE INDIVIDUAL FROM A
REGISTRATION STATEMENT OR ANNUAL REPORT, AS APPROPRIATE.  SEC. 13(H),
(I). 

THE PARTY AGGRIEVED BY ANY SUCH ORDER OF THE BOARD MAY OBTAIN REVIEW
BY FILING IN THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA A
PETITION PRAYING THAT THE ORDER BE SET ASIDE.  THE FINDINGS OF THE
BOARD AS TO THE FACTS, IF SUPPORTED BY THE PREPONDERANCE OF THE
EVIDENCE, SHALL BE CONCLUSIVE.  IF EITHER PARTY SHALL APPLY TO THE
COURT FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE AND SHALL SHOW TO THE
SATISFACTION OF THE COURT THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL,
THE COURT MAY ORDER SUCH ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE
BOARD, AND THE BOARD MAY MODIFY ITS FINDINGS AS TO THE FACTS, AND SHALL
FILE SUCH MODIFIED OR NEW FINDINGS, WHICH, IF SUPPORTED BY THE
PREPONDERANCE OF THE EVIDENCE, SHALL BE CONCLUSIVE.  THE COURT MAY
ENTER APPROPRIATE ORDERS.  ITS JUDGMENT AND DECREE SHALL BE FINAL,
EXCEPT THAT THEY MAY BE REVIEWED IN THIS COURT ON WRIT OF CERTIORARI. 
SEC. 14(A).  WHEN AN ORDER OF THE BOARD REQUIRING THE REGISTRATION OF A
COMMUNIST ORGANIZATION HAS BECOME FINAL UPON THE TERMINATION OF
PROCEEDINGS FOR JUDICIAL REVIEW OR UPON THE EXPIRATION OF THE TIME
ALLOWED FOR INSTITUTION OF SUCH PROCEEDINGS, THE BOARD SHALL PUBLISH IN
THE FEDERAL REGISTER THE FACT THAT ITS ORDER HAS BECOME FINAL, AND THAT
PUBLICATION SHALL CONSTITUTE NOTICE TO ALL MEMBERS OF THE ORGANIZATION
THAT THE ORDER HAS BECOME FINAL.  SECS. 13(K), 14(B). 


"IN DETERMINING WHETHER ANY ORGANIZATION IS A 'COMMUNIST-ACTION
ORGANIZATION', THE BOARD SHALL TAKE INTO CONSIDERATION: 

"(1)  THE EXTENT TO WHICH ITS POLICIES ARE FORMULATED AND CARRIED OUT
AND ITS ACTIVITIES PERFORMED, PURSUANT TO DIRECTIVES OR TO EFFECTUATE
THE POLICIES OF THE FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION IN WHICH
IS VESTED, OR UNDER THE DOMINATION OR CONTROL OF WHICH IS EXERCISED,
THE DIRECTION AND CONTROL OF THE WORLD COMMUNIST MOVEMENT REFERRED TO
IN SECTION 2 OF THIS TITLE, AND: 

"(2)  THE EXTENT TO WHICH ITS VIEWS AND POLICIES DO NOT DEVIATE FROM
THOSE OF SUCH FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION; AND: 

"(3)  THE EXTENT TO WHICH IT RECEIVES FINANCIAL OR OTHER AID,
DIRECTLY OR INDIRECTLY, FROM OR AT THE DIRECTION OF SUCH FOREIGN
GOVERNMENT OR FOREIGN ORGANIZATION; AND: 

"(4)  THE EXTENT TO WHICH IT SENDS MEMBERS OR REPRESENTATIVES TO ANY
FOREIGN COUNTRY FOR INSTRUCTION OR TRAINING IN THE PRINCIPLES,
POLICIES, STRATEGY, OR TACTICS OF SUCH WORLD COMMUNIST MOVEMENT, AND: 

"(5)  THE EXTENT TO WHICH IT REPORTS TO SUCH FOREIGN GOVERNMENT OR
FOREIGN ORGANIZATION OR TO ITS REPRESENTATIVES; AND: 

"(6)  THE EXTENT TO WHICH ITS PRINCIPAL LEADERS OR A SUBSTANTIAL
NUMBER OF ITS MEMBERS ARE SUBJECT TO OR RECOGNIZE THE DISCIPLINARY
POWER OF SUCH FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION OR ITS
REPRESENTATIVES; AND: 

"(7)  THE EXTENT TO WHICH, FOR THE PURPOSE OF CONCEALING FOREIGN
DIRECTION, DOMINATION, OR CONTROL, OR OF EXPEDITING OR PROMOTING ITS
OBJECTIVES, (I) IT FAILS TO DISCLOSE, OR RESISTS EFFORTS TO OBTAIN
INFORMATION AS TO, ITS MEMBERSHIP (BY KEEPING MEMBERSHIP LISTS IN CODE,
BY INSTRUCTING MEMBERS TO REFUSE TO ACKNOWLEDGE MEMBERSHIP, OR BY ANY
OTHER METHOD); (II) ITS MEMBERS REFUSE TO ACKNOWLEDGE MEMBERSHIP
THEREIN; (III) IT FAILS TO DISCLOSE, OR RESISTS EFFORTS TO OBTAIN
INFORMATION AS TO, RECORDS OTHER THAN MEMBERSHIP LISTS; (IV) ITS
MEETINGS ARE SECRET; AND (V) IT OTHERWISE OPERATES ON A SECRET BASIS;
AND: 

"(8)  THE EXTENT TO WHICH ITS PRINCIPAL LEADERS OR A SUBSTANTIAL
NUMBER OF ITS MEMBERS CONSIDER THE ALLEGIANCE THEY OWE TO THE UNITED
STATES AS SUBORDINATE TO THEIR OBLIGATIONS TO SUCH FOREIGN GOVERNMENT
OR FOREIGN ORGANIZATION." 

SIMILARLY, SEC. 13(F) ENUMERATES A SET OF EVIDENTIARY CONSIDERATIONS
TO GUIDE THE INQUIRY AND JUDGMENT OF THE BOARD IN DETERMINING WHETHER A
GIVEN ORGANIZATION IS OR IS NOT A COMMUNIST-FRONT ORGANIZATION. 

WHEN AN ORGANIZATION IS REGISTERED UNDER THE ACT, OR WHEN THERE IS IN
EFFECT WITH RESPECT TO IT A FINAL ORDER OF THE BOARD REQUIRING IT TO
REGISTER, SEC. 10(1) PROHIBITS IT, OR ANY PERSON ACTING IN BEHALF OF
IT, FROM TRANSMITTING THROUGH THE MAILS OR BY ANY MEANS OR
INSTRUMENTALITY OF INTERSTATE OR FOREIGN COMMERCE ANY PUBLICATION WHICH
IS INTENDED TO BE, OR WHICH IT MAY BE REASONABLY BELIEVED IS INTENDED
TO BE, CIRCULATED OR DISSEMINATED AMONG TWO OR MORE PERSONS, UNLESS
THAT PUBLICATION, AND ITS ENVELOPE, WRAPPER OR CONTAINER, BEAR THE
WRITING:  "DISSEMINATED BY (THE NAME OF THE ORGANIZATION), A COMMUNIST
ORGANIZATION."  SECTION 10(2) PROHIBITS THE ORGANIZATION, OR ANY PERSON
ACTING IN ITS BEHALF, FROM BROADCASTING OR CAUSING TO BE BROADCAST ANY
MATTER OVER ANY RADIO OR TELEVISION STATION UNLESS THE MATTER IS
PRECEDED BY THE STATEMENT:  "THE FOLLOWING PROGRAM IS SPONSORED BY (THE
NAME OF THE ORGANIZATION), A COMMUNIST ORGANIZATION."  UNDER SEC. 11 OF
THE ACT, THE ORGANIZATION IS NOT ENTITLED TO EXEMPTION FROM FEDERAL
INCOME TAX UNDER SEC. 101 OF THE 1939 INTERNAL REVENUE CODE, AND NO
DEDUCTION FOR FEDERAL INCOME-TAX PURPOSES IS ALLOWED IN THE CASE OF A
CONTRIBUTION TO IT.  IT IS UNLAWFUL FOR ANY OFFICER OR EMPLOYEE OF THE
UNITED STATES, OR OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES, OR
OF ANY CORPORATION WHOSE STOCK IS OWNED IN A MAJOR PART BY THE UNITED
STATES, TO COMMUNICATE TO ANY OTHER PERSON WHO SUCH OFFICER OR EMPLOYEE
KNOWS OR HAS REASON TO BELIEVE IS AN OFFICER OR MEMBER OF A COMMUNIST
ORGANIZATION, ANY INFORMATION CLASSIFIED BY THE PRESIDENT AS AFFECTING
THE SECURITY OF THE UNITED STATES, KNOWING OR HAVING REASON TO KNOW
THAT SUCH INFORMATION HAS BEEN CLASSIFIED.  SEC. 4(B).  IT IS UNLAWFUL
FOR ANY OFFICER OR MEMBER OF A COMMUNIST ORGANIZATION KNOWINGLY TO
OBTAIN OR RECEIVE, OR ATTEMPT TO OBTAIN OR RECEIVE, ANY CLASSIFIED
INFORMATION FROM ANY SUCH GOVERNMENT OFFICER OR EMPLOYEE.  SEC. 4(C). 
WHEN A COMMUNIST ORGANIZATION IS REGISTERED OR WHEN THERE IS IN EFFECT
WITH RESPECT TO IT A FINAL REGISTRATION ORDER OF THE SUBVERSIVE
ACTIVITIES CONTROL BOARD, IT IS UNLAWFUL FOR ANY MEMBER OF THE
ORGANIZATION, KNOWING OR HAVING NOTICE THAT THE ORGANIZATION IS
REGISTERED OR THE ORDER FINAL, TO HOLD NON-ELECTIVE OFFICE OR
EMPLOYMENT UNDER THE UNITED STATES OR TO CONCEAL OR FAIL TO DISCLOSE
THAT HE IS A MEMBER OF THE ORGANIZATION IN SEEKING, ACCEPTING, OR
HOLDING SUCH OFFICE OR EMPLOYMENT; AND IT IS UNLAWFUL FOR HIM TO
CONCEAL OR FAIL TO DISCLOSE THAT HE IS A MEMBER OF THE ORGANIZATION IN
SEEKING, ACCEPTING OR HOLDING EMPLOYMENT IN ANY DEFENSE FACILITY, (FN2)
OR, IF THE ORGANIZATION IS A COMMUNIST-ACTION ORGANIZATION, TO ENGAGE
IN ANY EMPLOYMENT IN ANY DEFENSE FACILITY.  IT IS UNLAWFUL FOR SUCH A
MEMBER TO HOLD OFFICE OR EMPLOYMENT WITH ANY LABOR ORGANIZATION, AS
THAT TERM IS DEFINED IN SEC. 2(5) OF THE NATIONAL LABOR RELATIONS ACT,
AS AMENDED, 29 U.S.C. SEC. 152, OR TO REPRESENT ANY EMPLOYER IN ANY
MATTER OR PROCEEDING ARISING OR PENDING UNDER THAT ACT.  SEC. 5(A)(1). 
IT IS UNLAWFUL FOR ANY OFFICER OR EMPLOYEE OF THE UNITED STATES OR OF A
DEFENSE FACILITY, KNOWING OR HAVING NOTICE THAT THE ORGANIZATION IS
REGISTERED OR A REGISTRATION ORDER CONCERNING IT IS FINAL, TO ADVISE OR
URGE A MEMBER OF THE ORGANIZATION, WITH KNOWLEDGE OR NOTICE THAT HE IS
A MEMBER, TO ENGAGE IN CONDUCT WHICH CONSTITUTES ANY OF THE ABOVE
VIOLATIONS OF THE ACT, OR FOR SUCH AN OFFICER OR EMPLOYEE TO CONTRIBUTE
FUNDS OR SERVICES TO THE ORGANIZATION.  SEC. 5(A)(2).  WHEN A COMMUNIST
ORGANIZATION IS REGISTERED OR WHEN THERE IS IN EFFECT WITH RESPECT TO
IT A FINAL REGISTRATION ORDER OF THE SUBVERSIVE ACTIVITIES CONTROL
BOARD, IT IS UNLAWFUL FOR A MEMBER OF THE ORGANIZATION, WITH KNOWLEDGE
OR NOTICE THAT IT IS REGISTERED OR THE ORDER FINAL, TO APPLY FOR A
PASSPORT, OR THE RENEWAL OF A PASSPORT, ISSUED UNDER THE AUTHORITY OF
THE UNITED STATES, OR TO USE OR TO ATTEMPT TO USE A UNITED STATES
PASSPORT; AND, IN THE CASE OF A COMMUNIST-ACTION ORGANIZATION, IT IS
UNLAWFUL FOR ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TO ISSUE OR
RENEW A PASSPORT FOR ANY INDIVIDUAL, KNOWING OR HAVING REASON TO
BELIEVE THAT HE IS A MEMBER OF THE ORGANIZATION.  SEC. 6.  ALIENS WHO
ARE MEMBERS OR AFFILIATES OF ANY ORGANIZATION DURING THE TIME IT IS
REGISTERED OR REQUIRED TO BE REGISTERED, UNLESS THEY ESTABLISH THAT
THEY DID NOT HAVE KNOWLEDGE OR REASON TO BELIEVE THAT IT WAS COMMUNIST
ORGANIZATION, ARE INELIGIBLE TO RECEIVE VISAS, ARE EXCLUDED FROM
ADMISSION TO THE UNITED STATES, AND, IF IN THE UNITED STATES, ARE
SUBJECT TO DEPORTATION UPON THE ORDER OF THE ATTORNEY GENERAL. 
IMMIGRATION AND NATIONALITY ACT, SECS. 212(A)(28)(E), 241(A)(6)(E), 66
STAT. 163, 185, 205, 8 U.S.C. SECS. 1182(A)(28)(E), 1251(A)(6)(E). 
(FN3)  NO PERSON SHALL BE NATURALIZED AS A CITIZEN OF THE UNITED STATES
WHO IS, OR, WITH CERTAIN EXCEPTIONS, HAS WITHIN TEN YEARS IMMEDIATELY
PRECEDING FILING OF HIS NATURALIZATION PETITION BEEN, A MEMBER OR
AFFILIATE OF ANY COMMUNIST-ACTION ORGANIZATION DURING THE TIME IT IS
REGISTERED OR IS REQUIRED TO BE REGISTERED, OR A MEMBER OR AFFILIATE OF
ANY COMMUNIST-FRONT ORGANIZATION DURING THE TIME IT IS REGISTERED OR
REQUIRED TO BE REGISTERED UNLESS HE ESTABLISHES THAT HE DID NOT HAVE
KNOWLEDGE OR REASON TO BELIEVE THAT IT WAS A COMMUNIST-FRONT
ORGANIZATION.  IMMIGRATION AND NATIONALITY ACT, SEC. 313(A)(2)(G), (H),
(C), 66 STAT. 163, 240, 241, 8 U.S.C. SEC. 1424(A)(2)(G), (H), (C).  IF
ANY PERSON NATURALIZED AFTER THE EFFECTIVE DATE OF THE ACT (FN4)
BECOMES WITHIN FIVE YEARS FOLLOWING HIS NATURALIZATION A MEMBER OR
AFFILIATE OF ANY ORGANIZATION, MEMBERSHIP IN WHICH OR AFFILIATION WITH
WHICH AT THE TIME OF HIS NATURALIZATION WOULD HAVE PRECLUDED HIS HAVING
BEEN NATURALIZED, IT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT SUCH
PERSON WAS NOT ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION AND WAS
NOT WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE UNITED STATES
AT THE TIME OF NATURALIZATION, AND IN THE ABSENCE OF COUNTERVAILING
EVIDENCE, THIS SHALL SUFFICE TO AUTHORIZE THE REVOCATION OF
NATURALIZATION.  IMMIGRATION AND NATIONALITY ACT, SEC. 340(C), 66 STAT.
163, 261, 8 U.S.C. SEC. 1451(C).  SERVICE IN THE EMPLOY OF ANY
ORGANIZATION THEN REGISTERED OR IN CONNECTION WITH WHICH A FINAL
REGISTRATION ORDER IS THEN IN EFFECT IS NOT "EMPLOYMENT" FOR PURPOSES
OF THE SOCIAL SECURITY ACT, AS AMENDED, 70 STAT. 807, 839, 42 U.S.C.
SEC. 410(A)(17), AND CHAPTER 21 OF THE INTERNAL REVENUE CODE OF 1954,
AS AMENDED, 70 STAT. 807, 839, 26 U.S.C.  SEC. 3121(B)(17), IF
PERFORMED AFTER JUNE 30, 1956. 

PROVIDES THAT NEITHER THE HOLDING OF OFFICE NOR MEMBERSHIP IN ANY
COMMUNIST ORGANIZATION BY ANY PERSON SHALL CONSTITUTE PER SE A
VIOLATION OF PENAL PROVISIONS OF THE ACT OR OF ANY OTHER CRIMINAL
STATUTE, AND THE FACT OF REGISTRATION OF ANY PERSON AS AN OFFICER OR
MEMBER OF SUCH AN ORGANIZATION SHALL NOT BE RECEIVED IN EVIDENCE
AGAINST THE PERSON IN ANY PROSECUTION FOR VIOLATIONS OF PENAL
PROVISIONS OF THE ACT OR ANY OTHER CRIMINAL STATUTE.  SECTION 32
PROVIDES: 

"IF ANY PROVISION OF THIS TITLE, OR THE APPLICATION THEREOF TO ANY
PERSON OR CIRCUMSTANCES, IS HELD INVALID, THE REMAINING PROVISIONS OF
THIS TITLE, OR THE APPLICATION OF SUCH PROVISION TO OTHER PERSONS OR
CIRCUMSTANCES, SHALL NOT BE AFFECTED THEREBY." 

       I. 

THIS LITIGATION HAS A LONG HISTORY.  ON NOVEMBER 22, 1950, THE
ATTORNEY GENERAL PETITIONED THE SUBVERSIVE ACTIVITIES CONTROL BOARD FOR
AN ORDER TO REQUIRE THAT THE COMMUNIST PARTY REGISTER AS A COMMUNIST
ACTION ORGANIZATION.  THE PARTY THEREUPON BROUGHT SUIT IN THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA, SEEKING TO HAVE THE PROCEEDINGS OF
THE BOARD ENJOINED.  A STATUTORY THREE-JUDGE COURT DENIED PRELIMINARY
RELIEF, COMMUNIST PARTY OF THE UNITED STATES V. MCGRATH, 96 F. SUPP.
47, BUT STAYED ANSWER AND HEARINGS BEFORE THE BOARD PENDING APPEAL. 
AFTER THIS COURT DENIED A PETITION FOR EXTENSION OF THE STAY, 340 U.S.
950, THE PARTY ABANDONED THE SUIT.  HEARINGS BEGAN ON APRIL 23, 1951,
AND ENDED ON JULY 1, 1952.  (FN5)  TWENTY-TWO WITNESSES FOR THE
ATTORNEY GENERAL AND THREE FOR THE PARTY PRESENTED ORAL TESTIMONY; 507
EXHIBITS, MANY OF BOOK LENGTH, WERE RECEIVED; THE STENOGRAPHIC RECORD,
EXCLUSIVE OF THESE EXHIBITS, AMOUNTED TO MORE THAN 14,000 PAGES.  ON
APRIL 20, 1953, THE BOARD ISSUED ITS 137-PAGE REPORT CONCLUDING THAT
THE PARTY WAS A COMMUNIST-ACTION ORGANIZATION WITHIN THE MEANING OF THE
SUBVERSIVE ACTIVITIES CONTROL ACT, AND ITS ORDER REQUIRING THAT THE
PARTY REGISTER IN THE MANNER PRESCRIBED BY SEC. 7.  (FN6)  PENDING
DISPOSITION IN THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA OF THE
PARTY'S PETITION FOR REVIEW OF THE REGISTRATION ORDER, THE PARTY MOVED
IN THAT COURT, PURSUANT TO SEC. 14(A), (FN7) FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE WHICH IT ALLEGED WOULD SHOW THAT THREE WITNESSES
FOR THE ATTORNEY GENERAL - CROUCH, JOHNSON, AND MATUSOW - HAD TESTIFIED
PERJURIOUSLY BEFORE THE BOARD.  THE COURT OF APPEALS DENIED THE MOTION
AND AFFIRMED THE ORDER OF THE BOARD, ONE JUDGE DISSENTING.  COMMUNIST
PARTY OF THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 96
U.S. APP.  D.C. 66, 223 F.2D 531.  FINDING THAT THE PARTY'S ALLEGATIONS
OF PERJURY HAD NOT BEEN DENIED BY THE ATTORNEY GENERAL, AND CONCLUDING
THAT THE REGISTRATION ORDER BASED ON A RECORD IMPUGNED BY A CHARGE OF
PERJURIOUS TESTIMONY ON THE PART OF THREE WITNESSES WHOSE EVIDENCE
CONSTITUTED A NOT INSUBSTANTIAL PORTION OF THE GOVERNMENT'S CASE COULD
NOT STAND, THIS COURT REMANDED TO THE BOARD "TO MAKE CERTAIN THAT IT
BASES ITS FINDINGS UPON UNTAINTED EVIDENCE."  351 U.S. 115, 125. 

ON REMAND THE PARTY FILED SEVERAL MOTIONS WITH THE BOARD SEEKING TO
REOPEN THE RECORD FOR THE INTRODUCTION OF ADDITIONAL EVIDENCE.  THESE
WERE DENIED.  A MOTION IN THE COURT OF APPEALS FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE WAS SIMILARLY DENIED, EXCEPT THAT THE BOARD WAS
GRANTED PERMISSION TO ENTERTAIN A MOTION CONCERNING THE PARTY'S OFFER
TO SHOW THAT ANOTHER OF THE ATTORNEY GENERAL'S WITNESSES, MRS.
MARKWARD, HAD COMMITTED PERJURY WITH REGARD TO A SPECIFIC ASPECT OF HER
TESTIMONY.  THE BOARD GRANTED THE PARTY'S MOTION; HEARINGS WERE
REOPENED; MRS. MARKWARD WAS CROSS-EXAMINED.  MOTIONS BY THE PARTY FOR
ORDERS REQUIRING THE GOVERNMENT TO PRODUCE CERTAIN DOCUMENTS RELEVANT
TO THE MATTER OF HER TESTIMONY WERE DENIED.  ON DECEMBER 18, 1956, THE
BOARD ISSUED ITS 240-PAGE MODIFIED REPORT.  IT FOUND THAT MRS. MARKWARD
WAS A CREDIBLE WITNESS, MADE NEW FINDINGS OF FACT, AND, HAVING EXPUNGED
THE TESTIMONY OF CROUCH, JOHNSON AND MATUSOW, REAFFIRMED ITS CONCLUSION
THAT THE PARTY WAS A COMMUNIST-ACTION ORGANIZATION AND RECOMMENDED THAT
THE COURT OF APPEALS AFFIRM ITS REGISTRATION ORDER.  THAT COURT, WHILE
AFFIRMING THE BOARD'S ACTIONS IN OTHER REGARDS, HELD THAT THE PARTY WAS
ENTITLED TO PRODUCTION OF SEVERAL DOCUMENTS RELATING TO MRS. MARKWARD'S
TESTIMONY, AND REMANDED.  COMMUNIST PARTY OF THE UNITED STATES V.
SUBVERSIVE ACTIVITIES CONTROL BOARD, 102 U.S. APP. D.C. 395, 254 F.2D
314.  THE SCOPE OF THIS REMAND WAS ENLARGED BY SUBSEQUENT ORDERS
REQUIRING THE PRODUCTION OF RECORDED STATEMENTS MADE TO THE F.B.I. BY
THE ATTORNEY GENERAL'S WITNESS BUDENZ, THE EXISTENCE OF THESE
RECORDINGS HAVING BECOME KNOWN TO GOVERNMENT COUNSEL AND TO THE BOARD
ONLY AT THIS TIME.  THESE STATEMENTS RELATED TO BUDENZ'S TESTIMONY AT
THE ORIGINAL HEARINGS CONCERNING THE "STAROBIN LETTER" AND THE "CHILDS
WEINER CONVERSATION."  MOTIONS PURSUANT TO SEC. 14(A) SEEKING THE
PRODUCTION OF OTHER GOVERNMENT-HELD DOCUMENTS - MEMORANDA FURNISHED TO
THE GOVERNMENT BY THE ATTORNEY GENERAL'S WITNESS GITLOW, AND RECORDINGS
MADE BY THE F.B.I. OF INTERVIEWS WITH BUDENZ - WERE DENIED. 

ON SECOND REMAND, THE DOCUMENTS SPECIFIED BY THE ORDERS OF THE COURT
OF APPEALS WERE MADE AVAILABLE TO THE PARTY.  THE HEARING WAS REOPENED
BEFORE A MEMBER OF THE BOARD SITTING AS AN EXAMINER.  WHEN THE ILLNESS
OF BUDENZ MADE IMPOSSIBLE HIS RECALL FOR CROSS-EXAMINATION IN
CONNECTION WITH THE DOCUMENTS PRODUCED, THE EXAMINER DENIED THE PARTY'S
MOTION TO STRIKE ALL OF BUDENZ'S TESTIMONY, BUT DID STRIKE SO MUCH AS
RELATED TO THE STAROBIN AND CHILDS-WEINER MATTERS.  AFTER RE-EVALUATING
THE CREDIBILITY OF BUDENZ AND MARKWARD, AND AFFIRMING THE ACTION OF ITS
EXAMINER IN STRIKING ONLY THAT PORTION OF BUDENZ'S TESTIMONY WHICH
CONCERNED THE STAROBIN LETTER AND THE CHILDS-WEINER CONVERSATION, THE
BOARD RE-EXAMINED THE RECORD AS A WHOLE AND ISSUED ITS MODIFIED REPORT
ON SECOND REMAND - ITS FINDINGS OF FACT CONSISTING PRINCIPALLY OF THE
FINDINGS CONTAINED IN ITS FIRST MODIFIED REPORT, WITH A FEW DELETIONS -
AGAIN CONCLUDING THAT THE COMMUNIST PARTY OF THE UNITED STATES WAS A
COMMUNIST-ACTION ORGANIZATION, AND AGAIN RECOMMENDING THAT ITS ORDER TO
REGISTER BE AFFIRMED.  THE SAME PANEL OF THE COURT OF APPEALS AFFIRMED
THE ORDER, AT THE SAME TIME DENYING THE PARTY'S MOTION UNDER SEC. 14(A)
FOR AN ORDER REQUIRING PRODUCTION OF ALL STATEMENTS MADE BY GOVERNMENT
WITNESSES AND NOW IN THE POSSESSION OF THE GOVERNMENT, 107 U.S. APP.
D.C. 279, 277 F.2D 78, THE DISSENTING JUDGE AGAIN DISSENTING IN PART. 
IT IS THIS DECISION WHICH IS NOW BEFORE US FOR REVIEW. 

                                       II. 

THE COMMUNIST PARTY URGES, AT THE OUTSET, THAT PROCEDURAL RULINGS BY
THE BOARD AND THE COURT OF APPEALS CONSTITUTE PREJUDICIAL ERROR
REQUIRING THAT THIS PROCEEDING BE REMANDED TO THE BOARD.  BEFORE
REACHING THE STATUTORY AND CONSTITUTIONAL ISSUES WHICH THIS CASE
PRESENTS, WE MUST CONSIDER THESE RULINGS. 

A. THE BOARD'S REFUSAL TO STRIKE ALL TESTIMONY OF THE WITNESS
BUDENZ.  AT THE ORIGINAL HEARING BEFORE THE BOARD, BUDENZ TESTIFIED
DURING ALMOST TWO DAYS ON DIRECT EXAMINATION AND FIVE DAYS ON CROSS
EXAMINATION.  HIS TESTIMONY FILLS MORE THAN 700 PAGES.  OF THESE, EIGHT
PAGES OF DIRECT AND THIRTY PAGES OF CROSS-EXAMINATION RELATE TO THE
STAROBIN LETTER; TWO PAGES OF DIRECT AND TEN PAGES OF CROSS-EXAMINATION
RELATE TO THE CHILDS-WEINER CONVERSATION.  MOTIONS TO REQUIRE
PRODUCTION OF REPORTS OR STATEMENTS BY BUDENZ TO THE F.B.I. ON THESE
TWO SUBJECTS WERE DENIED AT THAT TIME BY THE BOARD.  AFTER THIS COURT'S
REMAND, THE MOTIONS WERE REPEATED AND AGAIN DENIED.  THE COURT OF
APPEALS AFFIRMED THE DENIAL OF THE MOTIONS ON THE GROUND THAT THERE DID
NOT THEN APPEAR TO BE IN THE POSSESSION OF THE GOVERNMENT ANY SUCH
REPORTS OR STATEMENTS.  SUBSEQUENT TO THE COURT'S REMAND ON OTHER
GROUNDS, HOWEVER, GOVERNMENT COUNSEL FOR THE FIRST TIME DISCOVERED IN
THE F.B.I. FILES MECHANICAL TRANSCRIPTIONS OF INTERVIEWS WITH BUDENZ
CONCERNING THE STAROBIN AND CHILDS-WEINER MATTERS.  COUNSEL REPORTED
THIS DISCOVERY TO THE COURT OF APPEALS, WHICH THEREUPON ENLARGED THE
SCOPE OF REMAND TO REQUIRE THE PRODUCTION OF ALL "STATEMENTS," AS
DEFINED IN 18 U.S.C. SEC. 3500, MADE BY BUDENZ TO THE F.B.I. RELATING
TO THESE MATTERS.  THE QUESTION OF THE PROPRIETY OF THESE VARIOUS
RULINGS ON THE PARTY'S MOTIONS FOR PRODUCTION IS NOT NOW BEFORE US. 

AFTER AN INSPECTION OF THE F.B.I. RECORDINGS IN CAMERA BY A MEMBER OF
THE BOARD SITTING AS AN EXAMINER, EXCERPTS RELATING TO THE STAROBIN
LETTER AND CHILDS-WEINER CONVERSATION WERE FURNISHED TO THE PARTY.  THE
PARTY SOUGHT TO RECALL BUDENZ FOR FURTHER CROSS-EXAMINATION IN LIGHT OF
THESE STATEMENTS.  UPON RECEIPT OF A LETTER FROM BUDENZ'S PERSONAL
PHYSICIAN STATING THAT, BECAUSE OF A SERIOUS HEART CONDITION, IT WOULD
IMPERIL BUDENZ'S HEALTH TO APPEAR, THE MEMBER-EXAMINER CAUSED AN
INDEPENDENT PHYSICAL EXAMINATION OF THE WITNESS BY A HEART SPECIALIST. 
THE SPECIALIST CONFIRMED THAT CROSS-EXAMINATION MIGHT SERIOUSLY AFFECT
BUDENZ'S HEALTH OR CAUSE HIS DEATH, AND COUNSEL FOR THE GOVERNMENT AND
THE PARTY AGREED THAT THE WITNESS WAS UNAVAILABLE FOR RECALL.  THE
PARTY THEN MOVED THAT ALL OF BUDENZ'S TESTIMONY BE STRICKEN, ON THE
GROUNDS THAT ITS UNRELIABILITY WAS SHOWN BY HIS PRIOR STATEMENTS AND
THAT CROSS-EXAMINATION WHICH, WITH THE AID OF THE RECORDINGS PRODUCED,
MIGHT PERMIT THE PARTY TO DISCREDIT BUDENZ ENTIRELY, HAD BEEN RENDERED
IMPOSSIBLE BY DELAY FOR WHICH THE GOVERNMENT WAS RESPONSIBLE.  THE
EXAMINER DENIED THE MOTION, BUT GRANTED AN ALTERNATIVE MOTION TO STRIKE
SO MUCH OF BUDENZ'S TESTIMONY AS CONCERNED THE STAROBIN LETTER AND THE
CHILDS-WEINER CONVERSATION.  THE BOARD AND THE COURT OF APPEALS HAVE
AFFIRMED THESE RULINGS.  THE PARTY ARGUES THAT THEY ARE ERROR. 

THE "CHILDS-WEINER CONVERSATION" CONCERNS AN INTERVIEW IN NEW YORK AT
WHICH BUDENZ, CHILDS AND WEINER DISCUSSED THE FINANCING OF THE MIDWEST
DAILY RECORD, A PARTY NEWSPAPER THEN EDITED BY BUDENZ.   AT THE HEARING
BEFORE THE BOARD, BUDENZ TESTIFIED THAT CHILDS HAD ASKED WEINER IF
MONEY COULDN'T BE GOT FROM ABROAD, AND THAT WEINER REPLIED THAT
NORMALLY IT MIGHT, BUT THAT THE CHANNELS OF COMMUNICATION HAD BEEN
BROKEN FOR THE TIME BEING, THAT PERHAPS THEY MIGHT BE RE-ESTABLISHED SO
THAT MONEY COULD COME.  BUDENZ TESTIFIED THAT ALTHOUGH IT WAS NOT
DEFINITELY STATED WHAT WEINER MEANT BY "ABROAD," BUDENZ'S FAMILIARITY
WITH THE TERMS AS USED BY PARTY MEMBERS LED HIM TO BELIEVE THAT IT
MEANT "FROM MOSCOW."  IN THE RECORDINGS PRODUCED BY THE GOVERNMENT MADE
DURING A SERIES OF F.B.I. INTERVIEWS IN 1945, BUDENZ DID NOT MENTION
THIS INCIDENT, ALTHOUGH HE DID ADVERT TO THE FINANCING PROBLEMS OF THE
DAILY RECORD AND TO TRIPS WHICH HE MADE TO NEW YORK TO SEEK FUNDS FOR
IT.  ASKED WHETHER HE HAD SEEN ANY INDICATION OF FUNDS COMING FROM
RUSSIA, BUDENZ REPLIED:  "THE ONLY INDICATION WOULD BE IS THAT IN
ADDITION TO KRUMBEIN AS TREASURER, WEINER STILL MAINTAINS A CERTAIN
GENERAL SUPERVISORY CONTROL OVER FINANCES."  BUDENZ EXPLAINED THAT
WEINER WAS "TRUSTED FINANCIALLY," AND AGAIN MENTIONED THAT WEINER'S
BEING "A SUPER FINANCIAL PERSON" WAS "INDICATIVE" OF THE SOURCE OF
MONEY.  HE DID NOT RELATE ANY SPECIFIC CONDUCT OF WEINER'S WHICH
RENDERED HIS STATUS "INDICATIVE."  IN AN INTERVIEW IN 1946, AS REPORTED
IN AN OFFICE MEMORANDUM PREPARED BY AN F.B.I. AGENT, BUDENZ STATED THAT
HE "COULD RECALL ONLY ONE INSTANCE WHEREIN IT WAS INDICATED THAT THE
SOVIET UNION MIGHT BE SENDING MONEY":  THIS WAS THE CHILDS-WEINER
CONVERSATION IN NEW YORK.  CHILDS HAD ASKED WEINER, THE MEMORANDUM
STATED, WHETHER HE DIDN'T EXPECT A CONSIGNMENT "FROM ACROSS THE SEA." 

"  ...  WEINER IMMEDIATELY CHANGED THE SUBJECT MATTER, INDICATING
THAT HE DID NOT WANT TO DISCUSS THE QUESTION OF TRANSMISSION OF SOVIET
FUNDS IN THE PRESENCE OF BUDENZ, EVEN THOUGH BUDENZ WAS A TRUSTED
COMMUNIST.  BUDENZ CONCLUDED FROM THE REMARK THAT WAS MADE THAT FUNDS
WERE ACTUALLY BEING SENT TO THIS COUNTRY AT THAT TIME BY THE SOVIET
UNION FOR PROPAGANDA PURPOSES." 

AN F.B.I. DOCUMENT BASED ON AN INTERVIEW WITH BUDENZ IN 1947
DESCRIBES THE INCIDENT AS FOLLOWS: 

"  ...  CHILDS SUGGESTED THAT WEINER TRY TO GET SOME MONEY FROM
MOSCOW TO FINANCE THE PAPER.  WEINER STATED THAT HE HAD TEMPORARILY
LOST HIS CONTACTS IN MOSCOW, HENCE, HE COULD NOT DO ANYTHING." 

FINALLY, IN A 1950 INTERVIEW, AS RECORDED IN AN OFFICE MEMORANDUM,
BUDENZ RELATED: 

"  ...  CHILDS ASKED THAT FUNDS BE ADVANCED HIM BY WEINER FROM THE
RESERVE FUND (LARGE SUMS OF MONEY HELD IN BANK ACCOUNTS "IN RESERVE FOR
MOSCOW" OR EARMARKED FOR COMMUNIST ORGANIZATIONS) AND WEINER ADVISED
THAT HE DIDN'T HAVE ANY AT THAT TIME AS HIS COMMUNICATION SYSTEM HAD
TEMPORARILY BROKEN DOWN.  BUDENZ TOOK THIS TO MEAN THAT WEINER'S SOURCE
OF SUPPLY WAS FROM FOREIGN COUNTRIES, PARTICULARLY RUSSIA." 

THE "STAROBIN LETTER" WAS AN ALLEGED COMMUNICATION FROM STAROBIN, A
DAILY WORKER CORRESPONDENT AT THE UNITED NATIONS CONFERENCE IN SAN
FRANCISCO IN 1945, WHICH BUDENZ HAD OPENED AND OF WHICH HE HAD READ
ONLY A PART BEFORE IT WAS TAKEN FROM HIM AND TRANSMITTED TO CERTAIN
HIGHER-UPS AT THE DAILY WORKER.  THE LETTER WAS PURPORTEDLY RECEIVED AT
ABOUT THE TIME OF THE APPEARANCE IN A FRENCH COMMUNIST JOURNAL OF AN
ARTICLE BY JACQUES DUCLOS, SEVERELY CRITICIZING THE REORGANIZATION OF
THE COMMUNIST PARTY OF THE UNITED STATES AS THE COMMUNIST POLITICAL
ASSOCIATION UNDER EARL BROWDER IN 1944, A REORGANIZATION APPARENTLY
MARKED BY AN IDEOLOGICAL SHIFT AWAY FROM THE MORE REVOLUTIONARY MARXIST
LENINIST PRINCIPLES, AND TOWARD A DOCTRINE OF PEACEFUL SOVIET-AMERICAN
COEXISTENCE.  AT ROUGHLY THE SAME TIME, BUDENZ WAS INSTRUCTED TO
REPRINT THE DUCLOS ARTICLE IN THE DAILY WORKER; SHORTLY THEREAFTER, THE
COMMUNIST POLITICAL ASSOCIATION WAS RECONSTITUTED AS THE COMMUNIST
PARTY U.S.A., BROWDER WAS OUSTED, AND THE PARTY, IN THE WORDS OF ITS
NEW NATIONAL CHAIRMAN, WILLIAM Z. FOSTER, "SUDDENLY REVERTED TO ITS
BASIC COMMUNIST PRINCIPLES."  BUDENZ TESTIFIED AT THE HEARING THAT "IN
THIS LETTER MR. STAROBIN STATED THAT D.Z. MANUILSKY (A UKRAINIAN
DELEGATE TO THE CONFERENCE AND AN IMPORTANT COMMUNIST FIGURE)  ...  HAD
EXPRESSED INDIGNATION AT THE FACT THAT THE AMERICAN PARTY HAD NOT
CRITICIZED THE AMERICAN LEADERS, THAT IS, IN THE GOVERNMENT, MORE
SEVERELY, AND THAT THE AMERICAN PARTY SHOULD OBSERVE MORE CAREFULLY THE
GUIDANCE AND THE COUNSEL OF THE FRENCH COMMUNISTS."   THE F.B.I.
RECORDINGS PRODUCED PURSUANT TO THE REMAND ORDER OF THE COURT OF
APPEALS SHOW THAT IN 1945 INTERVIEWS WITH THE F.B.I., BUDENZ HAD SPOKEN
OF "PRIVATE COMMUNICATIONS SENT FROM STAROBIN TO US," IN CONNECTION
WITH THE IDEOLOGICAL SHIFT WHICH MARKED THE END OF THE BROWDER
"COLLABORATIONIST" POLICY.  HE DID NOT THEN SPEAK SPECIFICALLY OF THE
STAROBIN LETTER AS HE DESCRIBED IT IN HIS TESTIMONY.  IN RESPONSE TO A
QUESTION BY HIS F.B.I. EXAMINER, BUDENZ AGREED THAT STAROBIN HIMSELF
WAS NOT AN IMPORTANT ENOUGH FIGURE TO INAUGURATE A CHANGE OF POLICY. 
THIS COLLOQUY FOLLOWED: 

"Q.  DO YOU THINK THEN THAT THE INSTRUCTIONS RELATIVE TO THIS CHANGE
OF POLICY THAT STAROBIN AND FIELDS MUST HAVE RECEIVED CAME FROM THE
RUSSIAN DELEGATION?  OH, YOU SAID MAYBE MANUILSKY, THE UKRAINIAN
DELEGATE?  A. SURE, SURE, I MEAN - AFTER ALL, THEY GOT THE ATMOSPHERE
THERE.  IN FACT I MENTIONED MANUILSKY VERY MUCH, BECAUSE DEFINITELY HE
IS A FIGURE IN THE CI.    "Q.  HE CERTAINLY IS.  A. HE USED TO LAY DOWN
THE LAW LIKE A GENERAL, YOU KNOW, TO HIS TROOPS ...  ." 

IN 1946, BUDENZ REPORTED TO THE F.B.I. THAT IN A LETTER FROM THE SAN
FRANCISCO CONFERENCE, STAROBIN ADVISED THAT "'THE FRENCH COMRADES HAVE
THE LINE AND THE SUPPORT OF THE SOVIET UNION - AND THE FRENCH COMRADES
BLASTED STETTINIUS AND THE UNITED STATES DELEGATION, AND THEREFORE
STAROBIN DIRECTED THAT THE PARTY IN THIS COUNTRY SHOULD IMMEDIATELY
BLAST STETTINIUS AND THE UNITED STATES DELEGATION.'  BUDENZ STATED THAT
IN THIS LETTER STAROBIN INFERRED THAT HE AND/OR HIS ASSOCIATES AT THE
CONFERENCE HAD CONFERRED WITH MANUILSKY REGARDING THIS QUESTION, AND
THAT THE CHANGED POLICY WAS PREDICATED UPON MANUILSKY'S INSTRUCTIONS AS
WELL AS ON ADVICE RECEIVED FROM FRENCH COMMUNISTS AT UNCIO." 
TESTIFYING IN THAT SAME YEAR BEFORE THE HOUSE COMMITTEE ON UN-AMERICAN
ACTIVITIES, BUDENZ QUOTED THE STAROBIN LETTER AS RELATING THAT THE
FRENCH COMRADES ASSERTED THERE SHOULD BE MORE OF AN ATTACK UPON
STETTINIUS BY THE AMERICAN COMMUNISTS, AND THAT THIS WAS LIKEWISE THE
OPINION OF COMRADE MANUILSKY. 

IN RULING ON THE PARTY'S MOTION TO STRIKE ALL OF BUDENZ'S TESTIMONY
BECAUSE OF HIS UNAVAILABILITY FOR CROSS-EXAMINATION IN LIGHT OF THESE
EARLIER STATEMENTS, THE BOARD TOOK ACCOUNT NOT ONLY OF THE SIMILARITIES
AND VARIATIONS OF THE WITNESS'S SEVERAL ACCOUNTS OF THE STAROBIN AND
CHILDS-WEINER MATTERS, BUT ALSO OF BUDENZ'S RESPONSES UNDER EXTENSIVE
CROSS-EXAMINATION ON ALL SUBJECTS OF HIS TESTIMONY AT THE INITIAL
HEARING; OF THE SUBSTANTIAL CORROBORATION OF BUDENZ'S TESTIMONY BY
OTHER EVIDENCE IN THE ADMINISTRATIVE RECORD; AND OF THE FAILURE OF THE
PARTY TO ATTEMPT TO REBUT THAT TESTIMONY, WHICH WAS SPECIFIC AND
DETAILED.  THE BOARD FOUND THAT THE PRIOR STATEMENTS PRODUCED DID NOT
DEMONSTRATE, IN THE CONTEXT OF THE "PERTINENT CIRCUMSTANCES OF RECORD,"
THAT BUDENZ'S STAROBIN AND CHILDS-WEINER TESTIMONY WAS DELIBERATELY
FALSE, AND ALSO THAT, ASSUMING ARGUENDO SUCH TESTIMONY WERE FALSE, ALL
OF BUDENZ'S EVIDENCE WOULD NOT THEREBY BE DISCREDITED.  IT CONCLUDED
THAT "THE FAIR DISPOSITION OF THE QUESTION" WAS TO STRIKE BUDENZ'S
TESTIMONY ONLY ON THE TWO SUBJECTS AS TO WHICH FAILURE OF TIMELY
PRODUCTION OF PRIOR STATEMENTS HAD DEPRIVED THE PARTY OF EFFECTIVE
CROSS-EXAMINATION.  THE COURT OF APPEALS, INDEPENDENTLY REVIEWING THE
RECORD, AFFIRMED THE BOARD'S REFUSAL TO STRIKE, FINDING THAT THE
DISCREPANCIES AMONG THE VARIOUS VERSIONS OF THE STAROBIN-LETTER AND
CHILDS-WEINER-CONVERSATION INCIDENTS "ARE NOT SUCH AS TO INDICATE
PERJURY, MUCH LESS THE HABIT OF PERJURY ESSENTIAL TO BE SHOWN TO TAINT
ALL THE WITNESS'S TESTIMONY."  107 U.S. APP. D.C., AT 283, 277 F.2D, AT
82. 

THE CONSIDERATIONS RELEVANT TO THE PARTY'S CONTENTION THAT ALL OF
BUDENZ'S TESTIMONY MUST BE EXPUNGED ARE, FIRST, THE EXTENT TO WHICH HIS
PRIOR STATEMENTS TO THE F.B.I., COMPARED WITH HIS TESTIMONY IN THE
PRESENT PROCEEDINGS, DISCREDIT HIM AS A WITNESS AND IMPUGN HIS
TESTIMONY IN ITS ENTIRETY, AND, SECOND, THE EXTENT TO WHICH, ON THE
WHOLE RECORD, IT APPEARS THAT THE INABILITY TO CROSS-EXAMINE BUDENZ IN
LIGHT OF THOSE PRIOR STATEMENTS HAD PREJUDICED THE PARTY.  THESE ARE
QUESTIONS WHICH CAN BEST BE ANSWERED BY THOSE ENTRUSTED WITH
ASCERTAINING THE FACT; THAT IS, THE TRIBUNAL THAT CONDUCTS THE HEARING
AND PASSES JUDGMENT ON THE RELIABILITY OF THE WITNESS IN LIGHT OF HIS
TOTAL TESTIMONY AND ITS RELATION TO THE MORE THAN 14,000 PAGES,
EXCLUSIVE OF EXHIBITS, OF THE ADMINISTRATIVE TRANSCRIPT.  WIDE
DISCRETION WOULD BE LEFT TO A TRIAL JUDGE AND NOT LESS MUST BE LEFT TO
AN AGENCY LIKE THE BOARD IN A MATTER OF THIS KIND - A MATTER OF
ADJUSTING THE PROCESS OF INQUIRY TO THE EXIGENCIES OF A PARTICULAR
SITUATION AS THEY APPEAR TO ADMINISTRATORS IMMEDIATELY ACQUAINTED WITH
THE COURSE OF PROCEEDINGS.  ON THIS RECORD WE CANNOT SAY THAT BOTH THE
HEARING EXAMINER AND THE BOARD ABUSED THAT DISCRETION, OR THAT THE
COURT OF APPEALS ERRED IN AFFIRMING THEIR RULINGS.  IN SAYING THIS, WE
DO NOT IGNORE THE ARGUMENT OF THE PARTY THAT THE DEPRIVATION OF ITS
OPPORTUNITY TO CROSS-EXAMINE BUDENZ ON THE BASIS OF HIS PRIOR
STATEMENTS IS THE "FAULT" OF GOVERNMENT COUNSEL.  SUFFICE THAT WE FIND
NO BASIS FOR OVERRULING THE DETERMINATIONS BELOW THAT THE GOVERNMENT IS
NOT TO BE CHARGED WITH AN ATTEMPT UNFAIRLY TO HAMPER THE PARTY'S
PRESENTATION OF ITS CASE.  WE WOULD NOT, THEREFORE, BE JUSTIFIED IN
HOLDING THAT EVIDENCE SHOULD HAVE BEEN STRUCK WHICH THE BOARD FOUND
OTHERWISE PROBATIVE, INHERENTLY BELIEVABLE, AND NOT DISCREDITED DESPITE
FIVE DAYS OF CROSS-EXAMINATION BY THE PARTY, AND WHICH THE COURT OF
APPEALS FOUND UNEXCEPTIONABLE. 

B. THE BOARD'S REFUSAL TO ORDER PRODUCTION OF THE GITLOW MEMORANDA. 
IN 1940 GITLOW, WHO HAD BEEN DURING THE YEARS PRIOR TO 1929 A HIGH
OFFICIAL OF THE COMMUNIST PARTY, TURNED OVER TO THE F.B.I. A QUANTITY
OF DOCUMENTS AND PAPERS PERTAINING TO THE PARTY.  SHORTLY THEREAFTER HE
DICTATED A SERIES OF MEMORANDA EXPLAINING AND INTERPRETING THEM.  AT
THE ORIGINAL HEARING IN THE PRESENT PROCEEDING, GITLOW, TESTIFYING FOR
THE ATTORNEY GENERAL, IDENTIFIED A NUMBER OF THESE DOCUMENTS, WHICH
WERE THEN PUT IN EVIDENCE, AND DESCRIBED THEIR CONTENTS AND
SIGNIFICANCE.  THE PARTY MOVED THE BOARD FOR AN ORDER REQUIRING THAT
THE ATTORNEY GENERAL PRODUCE THE EXPLANATORY MEMORANDA.  THE MOTION WAS
DENIED.   IN ITS FIRST PETITION IN THE COURT OF APPEALS TO REVIEW THE
ORDER OF THE BOARD, THE PARTY ASSIGNED THE BOARD'S REFUSAL TO ORDER THE
PRODUCTION OF DOCUMENTARY EVIDENCE AS ERROR; BUT IT DID NOT MENTION THE
GITLOW MEMORANDA IN THE ARGUMENT PORTION OF ITS BRIEF, NOR, APPARENTLY,
IN ORAL ARGUMENT.  THE POINT WAS NOT AMONG THE QUESTIONS PRESENTED IN
THE PETITION FOR CERTIORARI IN THIS COURT IN 1955 AND WAS NOT RELIED ON
IN THE BRIEFS HERE.  AFTER OUR REMAND, THE PARTY AGAIN MOVED THE BOARD
TO ORDER PRODUCTION OF THE MEMORANDA.  THE BOARD AGAIN REFUSED.  THE
COURT OF APPEALS, IN ITS SECOND OPINION REVIEWING THE BOARD
PROCEEDINGS, HELD THAT THE RULING BY THE BOARD DECLINING TO ORDER
PRODUCTION COULD NOT BE CORRECTED ON PETITION TO REVIEW THE BOARD'S
ORDER.  RELYING ON CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S.
197, THE COURT SAID THAT THE PARTY'S EXCLUSIVE REMEDY WAS TO MOVE THE
COURT OF APPEALS, UNDER SEC. 14(A) OF THE ACT, FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE, AND THAT FAILURE TO MAKE SUCH A MOTION AT THE TIME
WHEN THE BOARD REFUSED TO ORDER THE DOCUMENTS PRODUCED BARRED THE PARTY
FROM LATER CHALLENGING THE ACTION OF THE BOARD.  AFTER THE SECOND
REMAND, THE PARTY DID MAKE A MOTION PURSUANT TO SEC. 14(A) SEEKING THE
GITLOW MEMORANDA.  THIS THE COURT REFUSED, HOLDING THAT THE PARTY'S
PROCEDURAL ERROR COULD NOT BE CURED NUNC PRO TUNC. 

WE MAY ASSUME ARGUENDO, WITHOUT DECIDING THE POINT, THAT THE BOARD
ERRED IN REFUSING TO ORDER THE GITLOW MEMORANDA PRODUCED AT THE
ORIGINAL HEARING.  BUT WE DO NOT REACH THE QUESTION OF THE
APPLICABILITY OF THE CONSOLIDATED EDISON CASE TO THIS SITUATION.  IT IS
TOO LATE NOW FOR THE PARTY TO RAISE THIS ERROR OF THE BOARD.  THAT
ERROR COULD HAVE BEEN RAISED HERE FIVE YEARS AGO.  HAD IT BEEN RAISED
THEN, WE COULD HAVE ORDERED IT CURED AT THE TIME OF THE FIRST REMAND TO
THE BOARD.  THE DEMANDS NOT ONLY OF ORDERLY PROCEDURE BUT OF DUE
PROCEDURE AS THE MEANS OF ACHIEVING JUSTICE ACCORDING TO LAW REQUIRE
THAT WHEN A CASE IS BROUGHT HERE FOR REVIEW OF ADMINISTRATIVE ACTION,
ALL THE RULINGS OF THE AGENCY UPON WHICH THE PARTY SEEKS REVERSAL, AND
WHICH ARE THEN AVAILABLE TO HIM, BE PRESENTED.  OTHERWISE WE WOULD BE
PROMOTING THE "SPORTING THEORY" OF JUSTICE, AT THE POTENTIAL COST OF
SUBSTANTIAL EXPENDITURES OF AGENCY TIME.  TO ALLOW COUNSEL TO WITHHOLD
IN THIS COURT AND SAVE FOR A LATER STAGE PROCEDURAL ERROR WOULD TEND TO
FOIST UPON THE COURT CONSTITUTIONAL DECISIONS WHICH COULD HAVE BEEN
AVOIDED HAD THOSE ERRORS BEEN INVOKED EARLIER.  (FN8)  WE HOLD THAT THE
COMMUNIST PARTY ABANDONED ITS CLAIM OF ERROR IN THE BOARD'S DENIAL OF
ITS MOTION TO REQUIRE THE GITLOW DOCUMENTS PRODUCED, BY FAILING TO
RAISE THAT QUESTION IN ITS PREVIOUS PETITION FOR CERTIORARI HERE.  OF
COURSE, IT COULD NOT RESURRECT THAT CLAIM BY REPEATING THE SAME MOTION
BEFORE THE BOARD AFTER OUR REMAND. 

C. DENIAL BY THE COURT OF APPEALS OF THE PARTY'S MOTIONS FOR ORDERS
REQUIRING PRODUCTION OF ALL STATEMENTS BY THE WITNESS BUDENZ, AND OF
ALL STATEMENTS BY ALL WITNESSES FOR THE ATTORNEY GENERAL.  ON FEBRUARY
14, 1958, AFTER THIS CASE HAD BEEN REMANDED TO THE BOARD FOR THE SECOND
TIME, AND MORE THAN FIVE AND A HALF YEARS AFTER THE TERMINATION OF THE
INITIAL HEARINGS, THE PARTY MOVED THE COURT OF APPEALS, UNDER SEC.
14(A), FOR AN ORDER REQUIRING PRODUCTION OF ALL RECORDINGS, NOTES AND
MEMORANDA MADE BY THE F.B.I. OF INTERVIEWS WITH BUDENZ, INSOFAR AS
THESE RELATED TO HIS TESTIMONY AT THE HEARINGS.  ON APRIL 14, 1959,
AFTER THE BOARD HAD CONSIDERED THE RECORD FOR THE THIRD TIME AND
WRITTEN ITS THIRD OPINION, THE PARTY FILED A SECOND MOTION IN THE COURT
OF APPEALS, SEEKING PRODUCTION OF ALL STATEMENTS BY ALL GOVERNMENT
WITNESSES RELATING TO THEIR TESTIMONY.  A MOTION OF SIMILAR SCOPE HAD
BEEN MADE BEFORE THE BOARD ON SECOND REMAND IN DECEMBER 1958.  THE
COURT DENIED THESE MOTIONS AS UNTIMELY.  WE CANNOT SAY THAT IN DOING SO
IT ABUSED ITS DISCRETION. 

WITH REFERENCE TO THE BUDENZ RECORDS, THE PARTY SEEKS TO EXCUSE ITS
DELAY BY POINTING OUT THAT NOT UNTIL EARLY IN FEBRUARY 1958 DID IT
DISCOVER THAT THE F.B.I. HAD MADE MECHANICAL TRANSCRIPTIONS OF
INTERVIEWS WITH THIS WITNESS.  THE PARTY WAS MISLED, IT ARGUES, AT THE
TIME OF THE ORIGINAL BOARD HEARINGS, INTO BELIEVING THAT NO PRIOR
STATEMENTS BY BUDENZ WERE IN THE POSSESSION OF THE GOVERNMENT.  THE
SHORT ANSWER TO THIS MAY BE FOUND IN THE TRANSCRIPT OF BUDENZ'S REPLIES
TO QUESTIONS OF COUNSEL FOR THE PARTY DURING HIS TESTIMONY ON CROSS
EXAMINATION.  (FN9)  ALTHOUGH THE PARTY MIGHT NOT HAVE KNOWN OF THE
DISC RECORDINGS MADE OF THE BUDENZ INTERVIEWS, IT KNEW THAT NOTES OR
RECORDS HAD BEEN TAKEN OF THOSE INTERVIEWS BY THE F.B.I.  INDEED THE
PARTY SOUGHT PRODUCTION OF SUCH REPORTS, INSOFAR AS THEY RELATED TO THE
STAROBIN LETTER AND THE CHILDS-WEINER CONVERSATION, BY MOTIONS MADE TO
THE BOARD AT THE TIME BUDENZ TESTIFIED.  HAD SIMILAR MOTIONS BEEN MADE
WITH REGARD TO OTHER ASPECTS OF BUDENZ'S TESTIMONY, OR WITH REGARD TO
OTHER WITNESSES, AND HAD THE BOARD DENIED THOSE MOTIONS, THIS ISSUE
COULD HAVE BEEN BROUGHT HERE ON REVIEW FIVE YEARS AGO.  (FN10)  IF
PRODUCTION HAD BEEN ORDERED, PRESUMABLY ALL STATEMENTS BY BUDENZ WOULD
HAVE BEEN FOUND.  STATEMENTS BY OTHERS, IF THEY EXISTED, WOULD HAVE
BEEN FOUND.  WE CANNOT SAY THAT THE COURT OF APPEALS WAS CLEARLY WRONG
IN HOLDING THAT AT THE TIME THESE MOTIONS WERE MADE IT WAS TOO LATE TO
REMAND TO THE BOARD AND REQUIRE PRODUCTION OF DOCUMENTS IN ORDER TO
REOPEN CROSS-EXAMINATION OF WITNESSES WHO TESTIFIED IN 1951 AND 1952. 

                             III. 

WE COME TO THE COMMUNIST PARTY'S CONTENTIONS THAT THE BOARD AND THE
COURT OF APPEALS ERRED IN THEIR CONSTRUCTION OF THE ACT AND IN THEIR
APPLICATION OF IT, ON THE FACTS OF THIS RECORD, TO THE PARTY.  IT IS
ARGUED THAT BOTH ELEMENTS OF THE STATUTORY DEFINITION OF A COMMUNIST
ACTION ORGANIZATION IN SEC. 3(3) OF THE ACT - WHAT HAVE COME IN THE
COURSE OF THIS LITIGATION TO BE KNOWN AS THE "CONTROL" AND "OBJECTIVES"
COMPONENTS - WERE MISINTERPRETED BELOW; THAT THE BOARD MISCONCEIVED THE
NATURE OF EACH OF THE EIGHT EVIDENTIARY CONSIDERATIONS DIRECTED TO ITS
ATTENTION BY SEC. 13(E) AS PERTINENT TO ITS DETERMINATION WHETHER AN
ORGANIZATION IS OR IS NOT A COMMUNIST-ACTION ORGANIZATION; THAT THE
BOARD MISAPPLIED THE PHRASE "WORLD COMMUNIST MOVEMENT" IN SEC. 2; AND
THAT THE BOARD ERRED IN TAKING ACCOUNT, AS RELEVANT TO THAT
DETERMINATION, OF CONDUCT OF THE PARTY PRIOR TO THE DATE OF THE ACT. 
THE COURT OF APPEALS IS SAID TO HAVE ERRED IN FAILING TO REMAND TO THE
BOARD AFTER STRIKING ONE OF ITS SUBSIDIARY FINDINGS AS UNSUPPORTED BY
THE EVIDENCE.  FINALLY, IT IS CONTENDED, THE RECORD AS A WHOLE DOES NOT
SUPPORT BY THE PREPONDERANCE OF THE EVIDENCE, AS REQUIRED BY SEC.
14(A), THE CONCLUSION THAT THE PARTY IS A COMMUNIST-ACTION ORGANIZATION
WITHIN THE CORRECT MEANING OF THAT PHRASE. 

A. THE "CONTROL COMPONENT."  UNDER SEC. 3(3) OF THE ACT AN
ORGANIZATION CANNOT BE FOUND TO BE A COMMUNIST-ACTION ORGANIZATION
UNLESS IT IS "SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED BY THE
FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION CONTROLLING THE WORLD
COMMUNIST MOVEMENT  ...  ."  THE PARTY ASSERTS THAT THIS REQUIREMENT IS
NOT SATISFIED BY ANY LESSER DEMONSTRATION THAN THAT THE FOREIGN
GOVERNMENT OR FOREIGN ORGANIZATION CONTROLLING THE WORLD COMMUNIST
MOVEMENT EXERCISES OVER THE ORGANIZATION AN ENFORCEABLE, COERCIVE POWER
TO EXACT COMPLIANCE WITH ITS DEMANDS.  THE COURT OF APPEALS DISAGREED,
HOLDING THAT IN THE CIRCUMSTANCES OF THIS RECORD A CONSISTENT,
UNDEVIATING DEDICATION, OVER AN EXTENDED PERIOD OF TIME, TO CARRYING
OUT THE PROGRAMS OF THE FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION,
DESPITE SIGNIFICANT VARIATIONS IN DIRECTION OF THOSE PROGRAMS, WAS
SUFFICIENT.  THE SUBVERSIVE ACTIVITIES CONTROL BOARD HAS NOT, IN ITS
REPORTS, ARTICULATED ANY OTHER UNDERSTANDING OF THE STANDARD, AND SINCE
ITS FINAL FACTUAL DETERMINATION WAS MADE AFTER THE COURT OF APPEALS HAD
PUT THIS DEFINITIVE GLOSS ON SEC. 3(3), WE MUST ATTRIBUTE TO IT
ACCEPTANCE OF THE COURT'S INTERPRETATION. 

WE AGREE THAT SUBSTANTIAL DIRECTION, DOMINATION, OR CONTROL OF ONE
ENTITY BY ANOTHER MAY EXIST WITHOUT THE LATTER'S HAVING POWER, IN THE
EVENT OF NON-COMPLIANCE, EFFECTIVELY TO ENFORCE OBEDIENCE TO ITS WILL. 
THE ISSUE WHICH THE COMMUNIST PARTY TENDERS AS ONE OF CONSTRUCTION OF
STATUTORY LANGUAGE IS MORE SHARPLY DRAWN IN THE ABSTRACT SPHERE OF
WORDS THAN IN THE REALM OF FACT.  IT IS TRUE THAT THE COURT OF APPEALS
COMPENDIOUSLY EXPRESSED ITS UNDERSTANDING OF THE PARTY'S CONDUCT OVER A
COURSE OF THIRTY YEARS, AS REVEALED BY THIS RECORD AND AS FOUND BY THE
BOARD, IN TERMS OF "VOLUNTARY COMPLIANCE."  OPPOSING THIS PHRASE, THE
PARTY INSISTS THAT THE STATUTE DEMANDS "ENFORCEABLE CONTROL."  BUT
NEITHER OF THESE VERBALISMS WAS USED BY CONGRESS, AND NEITHER HAS AN
INVARIANT CONTENT.  NOR HAS THE LANGUAGE OF THE STATUTE:
"SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED."  EACH OF THESE
NOTIONS CARRIES MEANING ONLY AS A SITUATION IN HUMAN RELATIONSHIPS
WHICH ARISES AND TAKES SHAPE IN DIFFERENT MODES AND PATTERNS IN THE
CONTEXT OF DIFFERENT CIRCUMSTANCES.    THE STATUTE, AS AMENDED, USES
THE SAME PHRASE THREE TIMES.  A COMMUNIST-ACTION ORGANIZATION MUST BE
ONE SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED BY A FOREIGN
GOVERNMENT OR FOREIGN ORGANIZATION OF A DESIGNATED KIND.  A COMMUNIST
FRONT ORGANIZATION MUST BE ONE SUBSTANTIALLY DIRECTED, DOMINATED, OR
CONTROLLED BY A COMMUNIST-ACTION ORGANIZATION.  SEC. 3(4).  A COMMUNIST
INFILTRATED ORGANIZATION MUST BE ONE SUBSTANTIALLY DIRECTED, DOMINATED,
OR CONTROLLED BY AN INDIVIDUAL OR INDIVIDUALS ENGAGED IN GIVING AID OR
SUPPORT TO A COMMUNIST-ACTION ORGANIZATION, COMMUNIST FOREIGN
GOVERNMENT, OR THE WORLD COMMUNIST MOVEMENT.  SEC. 3(4)(A).  VARIATIONS
OF THIS LANGUAGE ALSO OCCUR.  SUBSECTION 13(E)(1) REFERS TO "THE
FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION IN WHICH IS VESTED, OR UNDER
THE DOMINATION OR CONTROL OF WHICH IS EXERCISED, THE DIRECTION AND
CONTROL OF THE WORLD COMMUNIST MOVEMENT  ...  ."  SECTION 2(5) RELATES
THAT THE ACTION ORGANIZATIONS ESTABLISHED BY THE COMMUNIST DICTATORSHIP
IN WHICH IS VESTED THE DIRECTION AND CONTROL OF THE WORLD COMMUNIST
MOVEMENT ARE SECTIONS OF A WORLD-WIDE COMMUNIST ORGANIZATION AND ARE
"CONTROLLED, DIRECTED, AND SUBJECT TO THE DISCIPLINE OF THAT  ...
COMMUNIST DICTATORSHIP  ...  ."  MANIFESTLY, THE VARIOUS RELATIONSHIPS
AMONG NATIONS, ORGANIZATIONS, MOVEMENTS AND INDIVIDUALS OF WHICH THE
ACT SPEAKS WILL TAKE A MULTIPLICITY OF FORMS.  A FOREIGN GOVERNMENT
"DOMINATES" OR "CONTROLS" THE "DIRECTION" OF THE WORLD COMMUNIST
MOVEMENT THROUGH VERY DIFFERENT MEANS AND IN VERY DIFFERENT WAYS THAN
ONE ORGANIZATION "DOMINATES" OR "CONTROLS" ANOTHER, OR THAN AN
INDIVIDUAL "DOMINATES" OR "CONTROLS" AN ORGANIZATION.  THESE
DIFFERENCES DO NOT DEPRIVE THE CONCEPTS "DOMINATION" AND "CONTROL" OF
AMPLE MEANING.  THROUGHOUT VARIOUS MANIFESTATIONS THESE CONCEPTS DENOTE
A RELATIONSHIP IN WHICH ONE ENTITY SO MUCH HOLDS ASCENDANCY OVER
ANOTHER THAT IT IS PREDICTABLY CERTAIN THAT THE LATTER WILL COMPLY WITH
THE DIRECTIONS EXPRESSED BY THE FORMER SOLELY BY VIRTUE OF THAT
RELATIONSHIP, AND WITHOUT REFERENCE TO THE NATURE AND CONTENT OF THE
DIRECTIONS.  THIS IS THE SENSE WE FIND IN THE OPINIONS EXPOUNDING THE
DECISIONS OF THE COURT OF APPEALS.  THE REPORTS OF THE BOARD EVIDENCE A
SIMILAR UNDERSTANDING. 

NOTHING IN THE COMMITTEE REPORTS PERTINENT TO THE INTERNAL SECURITY
ACT OF 1950, OR IN WHAT WAS SAID BY CONGRESSMEN IN CHARGE OF ITS
PASSAGE, AFFORDS A GLOSS ON "SUBSTANTIALLY DIRECTED, DOMINATED, OR
CONTROLLED," AS USED IN SEC. 3(3).  THERE IS NOTHING TO INDICATE THAT
CONGRESS MEANT THAT PHRASE TO HAVE ANY ARCANE, TECHNICAL MEANING.  ITS
REACH IS SUGGESTED, HOWEVER, BY COMPARISON WITH A COGNATE ENACTMENT,
THE SO-CALLED VOORHIS ACT OF 1940, 54 STAT. 1201, NOW 18 U.S.C. SEC.
2386, REQUIRING THE REGISTRATION WITH THE ATTORNEY GENERAL OF, INTER
ALIA, CERTAIN ORGANIZATIONS "SUBJECT TO FOREIGN CONTROL."  (FN11)

"AN ORGANIZATION SHALL BE DEEMED 'SUBJECT TO FOREIGN CONTROL' IF (1)
IT SOLICITS OR ACCEPTS FINANCIAL CONTRIBUTIONS, LOANS, OR SUPPORT OF
ANY KIND, DIRECTLY OR INDIRECTLY, FROM, OR IS AFFILIATED DIRECTLY OR
INDIRECTLY WITH, A FOREIGN GOVERNMENT OR A POLITICAL SUBDIVISION
THEREOF, OR AN AGENT, AGENCY, OR INSTRUMENTALITY OF A FOREIGN
GOVERNMENT OR POLITICAL SUBDIVISION THEREOF, OR A POLITICAL PARTY IN A
FOREIGN COUNTRY, OR AN INTERNATIONAL POLITICAL ORGANIZATION, OR (2) ITS
POLICIES, OR ANY OF THEM, ARE DETERMINED BY OR AT THE SUGGESTION OF, OR
IN COLLABORATION WITH, A FOREIGN GOVERNMENT OR POLITICAL SUBDIVISION
THEREOF, OR AN AGENT, AGENCY, OR INSTRUMENTALITY OF A FOREIGN
GOVERNMENT OR A POLITICAL SUBDIVISION THEREOF, OR A POLITICAL PARTY IN
A FOREIGN COUNTRY, OR AN INTERNATIONAL POLITICAL ORGANIZATION." 

THE COMMITTEE REPORT ON THE HOUSE BILL FROM WHICH THE SUBVERSIVE
ACTIVITIES CONTROL ACT DERIVED INDICATES THAT ITS ENACTMENT WAS
OCCASIONED, IN PART, BY THE INADEQUACY OF EXISTING LEGISLATION. 
ALTHOUGH THE VOORHIS ACT HAD BEEN DIRECTED "AGAINST BOTH NAZIS AND
COMMUNISTS," IT HAD "PROVED LARGELY INEFFECTIVE AGAINST THE LATTER, DUE
IN PART TO THE SKILL AND DECEIT WHICH THE COMMUNISTS HAVE USED IN
CONCEALING THEIR FOREIGN TIES."  H.R. REP. NO. 2980, 81ST CONG., 2D
SESS. 2; SEE ALSO H.R. REP. NO. 1844, 80TH CONG., 2D SESS. 5.  IT IS
REASONABLE TO INFER THAT CONGRESS INTENDED THE REGISTRATION PROVISIONS
OF THE 1950 ACT TO BE APPLICABLE, AT THE VERY LEAST, TO ORGANIZATIONS
CONCERNING WHICH A SHOWING OF "CONTROL" WAS MADE WHICH WOULD HAVE
BROUGHT THE ORGANIZATION UNDER THE REGISTRATION PROVISIONS OF THE
VOORHIS ACT.  AND THE 1940 ACT, BY ITS EXPLICIT DEFINITIONS, DID NOT
REQUIRE WHAT THE PARTY SIGNIFIES BY "ENFORCEABLE" CONTROL. 

THE SUBJECTION TO FOREIGN DIRECTION, DOMINATION, OR CONTROL OF WHICH
SEC. 3(3) SPEAKS IS A DISPOSITION UNERRINGLY TO FOLLOW THE DICTATES OF
A DESIGNATED FOREIGN COUNTRY OR FOREIGN ORGANIZATION, NOT BY THE
EXERCISE OF INDEPENDENT JUDGMENT ON THE INTRINSIC APPEAL THAT THOSE
DICTATES CARRY, BUT FOR THE REASON THAT THEY EMANATE FROM THAT COUNTRY
OR ORGANIZATION.  NO MORE APT TERM THAN DOMINATION OR CONTROL COULD BE
USED TO DESCRIBE SUCH A RELATIONSHIP.  THE NATURE OF THE CIRCUMSTANCES
WHICH BIND AN ORGANIZATION TO UNWAVERING COMPLIANCE MAY BE DIVERSE. 
THEY MAY CONSIST, OF COURSE, OF THE SORT OF ENFORCEABLE POWER OVER THE
ORGANIZATION'S MEMBERS WHICH AN EMPLOYER HAS OVER AN EMPLOYEE - THE
POWER TO COMPEL OBEDIENCE BY THREAT OF DISCHARGE.  BUT THEY MAY ALSO
CONSIST OF OTHER INCIDENTS WHICH ASSURE THAT THE ORGANIZATION WILL
UNQUESTIONINGLY ADHERE TO THE LINE OF CONDUCT APPOINTED FOR IT.  SOME
OF THESE INCIDENTS ARE SUGGESTED BY THE EVIDENTIARY CONSIDERATIONS
WHICH CONGRESS HAS ENUMERATED IN SEC. 13(E) OF THE ACT - FOREIGN
FINANCIAL OR OTHER AID WHOSE MENACED WITHDRAWAL MAY SERVE AS AN
INSTRUMENT OF INFLUENCE, SEC. 13(E)(3); SUBJECTION TO, OR RECOGNITION
OF, PERSONAL DISCIPLINARY POWER OF THE DESIGNATED FOREIGN ORGANS BY THE
LEADERS OR A SUBSTANTIAL NUMBER OF THE MEMBERS OF AN ORGANIZATION, SEC.
13(E)(6); OBLIGATIONS IN THE NATURE OF ALLEGIANCE OWED TO THOSE FOREIGN
ORGANS BY AN ORGANIZATION'S LEADERS OR A SUBSTANTIAL NUMBER OF ITS
MEMBERS.  SEC.  13(E)(8).  OTHER INCIDENTS MAY INVOLVE OTHER FORCES
FELT BY INDIVIDUALS OR GROUPS TO BE COMPELLING:  A RECOGNITION OF
MASTERY, FOR EXAMPLE, WHICH MAKES CRITICISM ITSELF A SEVERE SANCTION. 
THE EXISTENCE OF DIRECTION, DOMINATION, OR CONTROL IN EACH INSTANCE IS
AN ISSUE OF PARTICULAR FACT.  THE QUESTION WHETHER IN THE CASE OF A
GIVEN ORGANIZATION SUCH A COMPULSION OR IMPULSION ARISES FROM THE
COMPLEX OF TIES WHICH LINK IT TO A FOREIGN GOVERNMENT OR ORGANIZATION
THAT IT WILL, BECAUSE OF THOSE TIES ALONE, ADHERE IN ITS CONDUCT TO
DECISIONS MADE FOR IT ABROAD, IS ONE WHICH CONGRESS HAS COMMITTED, IN
THE FIRST INSTANCE, TO AN EXPERT TRIER OF FACT.  SINCE THE
DETERMINATION THAT AN ORGANIZATION IS OR IS NOT A COMMUNIST-ACTION
ORGANIZATION IS LARGELY A MATTER OF THE WORKING OUT OF LEGISLATIVE
POLICY IN MULTIFORM SITUATIONS OF POTENTIALLY GREAT VARIETY, THE
"CONSTRUCTION" OF THE STATUTE WHICH ENSUES FROM ITS APPLICATION TO
PARTICULAR CIRCUMSTANCES BY THE ADMINISTRATIVE AGENCY CHARGED WITH ITS
ENFORCEMENT IS TO BE GIVEN WEIGHT BY A REVIEWING COURT.  CF. LABOR
BOARD V. HEARST PUBLICATIONS, INC., 332 U.S. 111.  OUR DECISION IN
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, IS ESPECIALLY
APPOSITE HERE.  THE CASE INVOLVED THE QUESTION WHETHER ONE
COMMUNICATIONS CORPORATION CONTROLLED ANOTHER FOR PURPOSES OF SEC. 2(B)
OF THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1065, PROVIDING THAT THE
FEDERAL COMMUNICATIONS COMMISSION SHOULD NOT HAVE JURISDICTION OVER ANY
CARRIER "ENGAGED IN INTERSTATE OR FOREIGN COMMUNICATION SOLELY THROUGH
PHYSICAL CONNECTION WITH THE FACILITIES OF ANOTHER CARRIER NOT DIRECTLY
OR INDIRECTLY CONTROLLING OR CONTROLLED BY  ...  SUCH CARRIER." 
REFUSING TO SET ASIDE AN ORDER BASED ON THE COMMISSION'S FINDING THAT
THE NEW YORK TELEPHONE COMPANY CONTROLLED THE ROCHESTER TELEPHONE
CORPORATION, WE SAID:  "INVESTING THE COMMISSION WITH THE DUTY OF
ASCERTAINING 'CONTROL' OF ONE COMPANY BY ANOTHER, CONGRESS DID NOT
IMPLY ARTIFICIAL TESTS OF CONTROL.  THIS IS AN ISSUE OF FACT TO BE
DETERMINED BY THE SPECIAL CIRCUMSTANCES OF EACH CASE.  SO LONG AS THERE
IS WARRANT IN THE RECORD FOR THE JUDGMENT OF THE EXPERT BODY IT MUST
STAND."  ID., AT 145-146. 

WHILE UNDER SEC. 14(A) OF THE SUBVERSIVE ACTIVITIES CONTROL ACT,
PROVIDING THAT THE FINDINGS OF THE BOARD AS TO FACTS SHALL BE
CONCLUSIVE IF SUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE, A
STRICTER STANDARD OF RE-EXAMINATION IS SET THAN THAT TO WHICH
ADMINISTRATIVE FINDINGS ARE ORDINARILY SUBJECT, WE CANNOT IN THIS CASE
SAY THAT THE BOARD - AND, IN AFFIRMING ITS ORDER, THE COURT OF APPEALS
HAVE MISAPPLIED THE ACT.  NEITHER ITS WRITTEN REPORT NOR THE OPINION
OF THE COURT BELOW SUPPORTS THE PARTY'S INTERPRETATION OF THEM.  THEY
DO NOT HOLD, AS THE PARTY SUGGESTS, THAT CONFORMITY WHICH STEMS FROM
NOTHING MORE THAN IDEOLOGICAL AGREEMENT SATISFIES THE REQUIREMENTS OF
SEC. 3(3).  WHAT THEY DO HOLD IS THAT "THE DEFINITION OF A COMMUNIST
ACTION ORGANIZATION WAS NOT INTENDED BY THE CONGRESS TO BE RESTRICTED
TO ORGANIZATIONS WHICH ARE SUBJECT TO ENFORCEABLE DEMANDS OF THE SOVIET
UNION  ...  .  AN ORGANIZATION OR A PERSON MAY BE SUBSTANTIALLY UNDER
THE DIRECTION OR DOMINATION OF ANOTHER PERSON OR ORGANIZATION BY
VOLUNTARY COMPLIANCE AS WELL AS THROUGH COMPULSION.  THIS IS ESPECIALLY
TRUE IF VOLUNTARY COMPLIANCE IS SIMULTANEOUS IN TIME WITH THE DIRECTION
AND IS UNDEVIATING OVER A PERIOD OF TIME AND UNDER VARIATIONS OF
DIRECTION.  IF THE SOVIET UNION DIRECTS A LINE OF POLICY, AND AN
ORGANIZATION VOLUNTARILY FOLLOWS THE DIRECTION, THE TERMS OF THIS
STATUTORY DEFINITION WOULD BE MET."  102 U.S. APP. D.C. 395, 400, 254
F.2D 314, 319. 

THIS MUST BE READ IN THE CONTEXT OF THE FACTS OF RECORD IN THIS
PROCEEDING.  SINCE THE DETERMINATIVE ISSUE OF THE MEANING OF
"SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED," AND THE
CONSTITUTIONAL QUESTIONS WHICH THE CONSTRUCTION OF THIS STATUTORY
LANGUAGE RAISES, ARE TO BE DETERMINED ESSENTIALLY ON THE BASIS OF THE
ASSIGNMENT OF LEGAL SIGNIFICANCE TO THE BOARD'S FINDINGS OF FACT, THOSE
FINDINGS MUST BE ALLOWED TO SPEAK FOR THEMSELVES.  THEY CAN NEITHER BE
SUMMARIZED NOR FAIRLY CONVEYED IN BITS AND PIECES.  THEIR LARGE SCOPE
AND CRITICAL IMPORTANCE NECESSITATES AND JUSTIFIES BURDENING THIS
OPINION WITH MORE EXTENSIVE QUOTATION THAN IS CUSTOMARY IN CASES WHERE
SUMMARIES OF THE RECORD MAY MORE MEANINGFULLY BE MADE.  THE BOARD
WROTE: 

"THE PRESENT WORLD COMMUNIST MOVEMENT WAS FIRST MANIFESTED
ORGANIZATIONALLY BY THE FORMATION IN MARCH OF 1919 IN MOSCOW, RUSSIA,
OF THE THIRD COMMUNIST INTERNATIONAL.  AS THIS EVENT IS RECORDED IN THE
HISTORY OF THE COMMUNIST PARTY OF THE SOVIET UNION  ...  , IT WAS 'ON
THE INITIATIVE OF THE BOLSHEVIKS, HEADED BY LENIN,' THAT THE FIRST
CONGRESS OF COMMUNIST PARTIES WAS CALLED IN MOSCOW, THE WORK OF WHICH
'WAS GUIDED BY LENIN'; AND, 'THUS WAS FOUNDED AN INTERNATIONAL
REVOLUTIONARY PROLETARIAN ORGANIZATION OF A NEW TYPE - THE COMMUNIST
INTERNATIONAL - THE MARXIST-LENINIST INTERNATIONAL.' 

     *        *         *         *         * 

"ONE YEAR LATER, JULY 17-AUGUST 7, 1920, THE SECOND CONGRESS OF THE
COMMUNIST INTERNATIONAL ADOPTED AND PROMULGATED ITS THESES AND
STATUTES, SETTING FORTH ITS AIMS AND PURPOSES AS LATER HEREIN DETAILED,
AND DESCRIBED ITSELF AS 'A SINGLE UNIVERSAL COMMUNIST PARTY, OF WHICH
THE PARTIES OPERATING IN EVERY COUNTRY FORM INDIVIDUAL SECTIONS'  ...
. 

"A 'STATUTE' OF THE COMINTERN INSURED THAT IT WOULD SERVE THE
INTERESTS OF RUSSIA BY PROVIDING: 

"'THE COMMUNIST INTERNATIONAL FULLY AND UNRESERVEDLY UPHOLDS THE
GAINS OF THE GREAT PROLETARIAN REVOLUTION IN RUSSIA, THE FIRST
VICTORIOUS SOCIALIST REVOLUTION IN THE WORLD'S HISTORY, AND CALLS UPON
ALL WORKERS TO FOLLOW THE SAME ROAD.  THE COMMUNIST INTERNATIONAL MAKES
IT ITS DUTY TO SUPPORT WITH ALL THE POWER AT ITS DISPOSAL EVERY SOVIET
REPUBLIC, WHEREVER IT MAY BE FORMED.'  ...  . 

     *         *         *         *         * 

"THE COMMUNIST INTERNATIONAL WAS IN FACT A WORLD COMMUNIST PARTY,
ORGANIZED AND CONTROLLED AS TO POLICIES AND ACTIVITIES BY THE SOVIET
UNION, CONSISTING OF THE VARIOUS COMMUNIST PARTIES OF THE COUNTRIES
THROUGHOUT THE WORLD, WHICH CONSTITUTED ITS SECTIONS.  WITH
HEADQUARTERS IN MOSCOW, IT EMBODIED AN ELABORATE ORGANIZATIONAL
STRUCTURE, RELATED TO IMPLEMENTING THE BASIC STRATEGY AND TACTICS OF
MARXISM-LENINISM  ...  .  THERE WAS NO NORTH AMERICAN BUREAU, BUT THE
POLITICAL BUREAU OF RESPONDENT ACTED IN THAT CAPACITY, SUPERVISING THE
COMMUNISTS IN CANADA, CUBA, MEXICO, AND OTHERS DOWN TO THE PANAMA
CANAL. 

"THE SOVIET UNION WAS THE LEADER OF THE COMMUNIST INTERNATIONAL,
EXERCISING CONTROL OVER ITS POLICIES AND ACTIVITIES.  THE COMMUNIST
PARTY OF THE SOVIET UNION HAD FIVE VOTES TO ONE EACH FOR THE OTHER
LARGER PARTIES IN THE EXECUTIVE COMMITTEE OF THE COMINTERN (ECCI),
WHICH RESPONDENT IN A 1934 RESOLUTION ACKNOWLEDGED TO BE 'THE GENERAL
STAFF OF THE WORLD REVOLUTIONARY MOVEMENT GIVING UNITY AND LEADERSHIP
TO THE COMMUNIST PARTIES OF THE WORLD.'  ...  .  THE GOVERNMENT OF THE
SOVIET UNION FINANCED THE COMINTERN.  ALL OF THE HEADS OF THE COMINTERN
WHO WERE IDENTIFIED IN THE RECORD WERE LEADING MEMBERS OF THE COMMUNIST
PARTY OF THE SOVIET UNION  ...  .           *         *         *
*         * 

"RESPONDENT JOINED THIS INTERNATIONAL COMMUNIST ORGANIZATION SHORTLY
AFTER IT WAS CONSTITUTED AND ADMITTEDLY UNTIL 1940 PARTICIPATED THEREIN
...  .  RESPONDENT RECOGNIZED THAT ITS MEMBERSHIP THEREIN SUBORDINATED
ANY NATIONAL INTERESTS  ...  . 

     *      *         *         *         * 

"FURTHER, THAT COMPLETE AND TOTAL ALLEGIANCE AND DEDICATION WAS
DEMANDED IN AFFILIATION WITH THE COMINTERN, AND WAS ACKNOWLEDGED AND IN
TURN STRESSED BY RESPONDENT, IS ALSO SHOWN BY ITS 'PROGRAM':    "'  ...
THE COMMUNIST INTERNATIONAL IS AN ORGANIZATION FOR WAGING CLASS
WARFARE FOR THE LIBERATION OF THE WORKING CLASS; THERE CAN BE NO
RESERVATIONS IN ENDORSEMENT AND AFFILIATION WITH IT.  LOYALTY "WITH
RESERVATIONS" IS TREACHERY.  ENDORSEMENT AND DEFENSE OF SOVIETS IN
RUSSIA, WITH FAILURE TO ADVOCATE THE SOVIET FORM OF PROLETARIAN
DICTATORSHIP IN THE UNITED STATES IS HYPOCRISY.'  ...  . 

     *         *         *         *         * 

"FUNDAMENTAL TO THE WORLD COMMUNIST MOVEMENT WERE THE 21 'CONDITIONS
OF ADMISSION TO THE COMMUNIST INTERNATIONAL' PROMULGATED IN ITS THESES
AND STATUTES IN 1920  ...  .  UNCONTRADICTED TESTIMONY AND DOCUMENTS
ESTABLISH THAT THESE 'CONDITIONS' WERE ENDORSED AND ACCEPTED BY
RESPONDENT AND WERE BINDING UPON IT. 

  *         *         *         *         * 

"  ...  CONDITION NO. 12 REQUIRED THE PARTY TO BE FORMED UPON THE
BASIS OF DEMOCRATIC CENTRALISM, STRESSING THAT ONLY WHEN POSSESSED OF
AN 'IRON DISCIPLINE'  ...  WILL IT BE ABLE TO FULLY AND THOROUGHLY
CARRY OUT ITS DUTY AS PART OF THE WORLD COMMUNIST MOVEMENT.  CONDITION
NO. 20, IN ORDER TO AID CONTROL, REQUIRED THAT TWO-THIRDS OF ALL
COMMITTEE MEMBERS AND MEMBERS OF CENTRAL INSTITUTIONS CONSIST OF
COMRADES WHO HAVE MADE OPEN DECLARATIONS AS TO THEIR DESIRE TO JOIN THE
COMINTERN.  CONDITION NO. 11 REQUIRED AN INSPECTION OF PERSONNEL AND
THE REMOVAL OF UNRELIABLE ELEMENTS FROM PARLIAMENTARY PARTY FRACTIONS,
AND CONDITION NO. 13 REQUIRED A SYSTEMATIC CHECK OF PERSONNEL TO REMOVE
PETTY BOURGEOIS ELEMENTS WHICH MAY HAVE INFILTRATED A PARTY.  CONDITION
NO. 16 MADE BINDING UPON THE PARTY ALL RESOLUTIONS OF THE COMINTERN,
AND CONDITION NO. 21 MADE LIABLE TO EXCLUSION FROM THE PARTY ANYONE WHO
REJECTED THE THESES AND CONDITIONS OF THE THIRD COMMUNIST
INTERNATIONAL. 

     *         *         *         *      * 

"AS TO SPECIFIC POLICIES AND PROGRAMS, CONDITION NO. 15 REQUIRED THE
MAINTENANCE OF A PROGRAM IN ACCORDANCE WITH THE RESOLUTIONS OF THE
COMINTERN  ...  . 

     *         *        *         *         * 

"ANOTHER ASPECT OF THE 'CONDITIONS' WAS TO MAKE THE ALLEGIANCE OF A
UNION, PARAMOUNT TO ANY OTHER.  FOR EXAMPLE, CONDITION NO. 14 OBLIGATES
EVERY MEMBER PARTY OF THE COMINTERN 'TO RENDER EVERY POSSIBLE
ASSISTANCE TO THE SOVIET REPUBLICS IN THEIR STRUGGLE AGAINST ALL
COUNTER-REVOLUTIONARY FORCES.'  ...  .  IT DIRECTS THE MEMBER PARTIES
TO USE LEGAL AND ILLEGAL MEANS TO OBSTRUCT MILITARY EFFORTS AGAINST THE
SOVIET UNION ...  . 

     *         *         *         *         * 

"THESE 21 'CONDITIONS' WERE NEVER CHANGED BY THE COMMUNIST
INTERNATIONAL AND WERE ENFORCED AND IMPLEMENTED BY RESPONDENT AND USED
TO EDUCATE ITS MEMBERS.  CONSIDERABLE DOCUMENTARY MATERIAL OF RECORD
ALSO ESTABLISHED THAT RESPONDENT FULLY COMPLIED WITH AND FULFILLED THE
REQUIREMENTS OF MEMBERSHIP IN THE COMMUNIST INTERNATIONAL AND
FAITHFULLY FOLLOWED AND CARRIED OUT ITS INSTRUCTIONS AND DIRECTIVES. 

     *      *         *         *         * 

"THE COMMUNIST INTERNATIONAL WAS FORMALLY DISSOLVED AS SUCH IN 1943,
AT WHICH TIME THE UNITED STATES AND THE SOVIET UNION WERE MILITARY
ALLIES.  ONE REASON GIVEN FOR THIS FORMAL DISSOLUTION BY STALIN WAS
THAT IT WOULD REMOVE THE FOUNDATION FOR 'FASCIST' CHARGES THAT THE
SOVIET UNION WAS MEDDLING IN THE INTERNAL AFFAIRS OF OTHER NATIONS  ...
. 

     *         *         *         *         * 

"THE WORLD COMMUNIST MOVEMENT, UNDER THE HEGEMONY OF THE SOVIET
UNION, CONTINUED, NOTWITHSTANDING THE 'DISSOLUTION' OF ITS
ORGANIZATIONAL FORM EMBODIED IN THE COMMUNIST INTERNATIONAL  ...  .
THE WORLD COMMUNIST MOVEMENT, INTACT IN THE BASIC ORIENTATION, POLICIES
AND PROGRAMS DISCUSSED ABOVE, CONTINUED VIA THE COMINFORM AND BY
COMMUNIST PARTIES NOT FORMALLY AFFILIATED WITH IT, SUCH AS RESPONDENT. 

     *         *         *    *         * 

"RESPONDENT, ALTHOUGH NEVER FORMALLY A MEMBER OF THE COMINFORM, HAS
...  REMAINED DEDICATED TO 'PROLETARIAN INTERNATIONALISM,' MARXISM
LENINISM, AND THE POLICIES AND PROGRAMS OF THE WORLD COMMUNIST MOVEMENT
AS CONTINUED BY THE COMINFORM. 

     *         *         *         *         * 

"WE HAVE PREVIOUSLY SET FORTH THAT RESPONDENT JOINED THE COMMUNIST
INTERNATIONAL SHORTLY AFTER IT WAS CONSTITUTED AND ADMITTEDLY
PARTICIPATED THEREIN UNTIL 1940.  RESPONDENT OFFERED NO SUBSTANTIAL
EVIDENCE CONCERNING THIS PERIOD OF ITS ACTIVITIES, CONTENDING THAT THIS
PERIOD IS IRRELEVANT, PRIMARILY BECAUSE OF AN ANNOUNCED DISAFFILIATION
FROM THE COMMUNIST INTERNATIONAL IN 1940.  THE CIRCUMSTANCES OF THE
DISAFFILIATION  ...  SHOW THAT THERE WAS NO FUNDAMENTAL OR SIGNIFICANT
CHANGE IN RESPONDENT'S RELATIONSHIP TO THE WORLD COMMUNIST MOVEMENT
...  . 

     *         *         *         *         * 

"THE ORAL TESTIMONY AND OFFICIAL DOCUMENTS OF RESPONDENT AND OF THE
COMINTERN SHOW THAT RESPONDENT WAS UNDER THE COMPLETE CONTROL AND
DIRECTION OF THE COMINTERN.  GITLOW WAS A TOP OFFICIAL OF RESPONDENT
AND IN THE LATE 1920'S A MEMBER OF THE EXECUTIVE COMMITTEE OF THE
COMMUNIST INTERNATIONAL.  HE STATED UNEQUIVOCALLY THAT THE COMINTERN
CONTROLLED ALL MAJOR POLICIES OF RESPONDENT.  KORNFEDER, ALSO A
FUNCTIONARY OF RESPONDENT AND WHO ATTENDED THE SIXTH CONGRESS OF THE
COMINTERN HELD IN MOSCOW, CORROBORATED THIS STATING THAT HE KNEW OF NO
INSTANCE DURING HIS EXPERIENCE, WHICH LASTED UNTIL 1934, WHEN
RESPONDENT DEVIATED FROM COMINTERN INSTRUCTIONS.  NOWELL, BASED ON
PERSONAL EXPERIENCE AS A MEMBER OF RESPONDENT AND PERSONAL CONTACT WITH
THE COMINTERN, AS WELL AS WHAT HE WAS INSTRUCTED WHILE ATTENDING THE
LENIN SCHOOL IN MOSCOW IN 1932, STATED THAT THE DECISIONS OF THE
COMINTERN WERE BINDING ON RESPONDENT.  HONIG TESTIFIED TO COMINTERN
DIRECTIVES WHICH WERE CARRIED OUT BY RESPONDENT  ...  . 

"AMONG THE SPECIFIC INSTANCES OF RECORD, MUCH OF WHICH IS
UNCONTROVERTED DOCUMENTARY MATERIAL, SHOWING THE CONTROL EXERCISED OVER
RESPONDENT BY THE COMINTERN WERE:  A COMINTERN DECISION IN 1924 WHICH
RESULTED IN THE AMALGAMATION OF VARIOUS COMMUNIST FACTIONS IN THE
UNITED STATES INTO THE SINGLE COMMUNIST PARTY; A DECISION BY JOSEPH
STALIN IN 1929, ADOPTED BY THE COMINTERN, WHICH EXPELLED CERTAIN TOP
OFFICIALS OF RESPONDENT AND DESIGNATED OTHER INDIVIDUALS AS LEADERS OF
RESPONDENT; ADVANCE APPROVAL BY THE COMINTERN FOR THE HOLDING OF
COMMUNIST PARTY CONVENTIONS IN THE UNITED STATES; COMINTERN
INSTRUCTIONS IN 1927 THAT RESPONDENT CHARGE THE UNITED STATES AND GREAT
BRITAIN WITH INTERVENTION IN CHINESE AFFAIRS AND TO ATTACK CHIANG KAI
SHEK; COMINTERN DECISION DIRECTING RESPONDENT TO WORK FOR THE FORMATION
OF A FARMER-LABOR PARTY IN THE UNITED STATES AND A SUBSEQUENT CHANGE
DIRECTING RESPONDENT TO GO INTO ELECTIONS WITH THE COMMUNIST PARTY
TICKET; AND, ADVANCE APPROVAL BY THE COMINTERN OF MEMBERS OF RESPONDENT
WHO WERE SENT TO TRAINING SCHOOLS IN MOSCOW  ...  . 

     *   *         *         *         * 

"RESPONDENT MAKES MUCH OF THE FACT THAT IT 'DISAFFILIATED' FROM THE
COMMUNIST INTERNATIONAL IN 1940.  THERE WAS NO DISPUTE THAT RESPONDENT
IN 1940 ANNOUNCED ITS DISAFFILIATION FOR THE STATED PURPOSE OF AVOIDING
REGISTRATION AS A FOREIGN AGENT UNDER THE VOORHIS ACT OF OCTOBER 17,
1940.  AN ISSUE IS THE EFFECT OF THE DISAFFILIATION. 

 *         *         *         *         * 

"  ...  THE BROWDER REPORT MAKES CLEAR THAT THE DISAFFILIATION WAS
BUT AN EXPEDIENCY TO AVOID REGISTRATION UNDER THE VOORHIS ACT AND
CONTAINS NOTHING WHICH NEGATIVES AN INTENT TO CONTINUE AS BEFORE THE
PRINCIPLE OF 'PROLETARIAN INTERNATIONALISM.'  VARIOUS PASSAGES OF
BROWDER'S REPORT INDICATE AN INTENT TO END ONLY THE 'FORMAL' AND
'ORGANIZATIONAL' CONNECTION WITH THE COMMUNIST INTERNATIONAL BUT NOT TO
ALTER THE PREEXISTING FUNDAMENTAL RELATIONSHIP.  ILLUSTRATIVE OF THIS
IS THAT THE REPORT STATES THE DISAFFILIATION WOULD NOT EVEN BE
CONSIDERED IF IT WERE THOUGHT THAT IT WOULD CAUSE THE PARTY TO 'WAIVER'
OR 'VACILLATE' IN CARRYING OUT 'THE INTERNATIONALISM FOUNDED BY MARX
AND ENGELS, AND BROUGHT TO ITS GREAT, HISTORICALLY DECISIVE VICTORIES
UNDER THE LEADERSHIP OF LENIN AND STALIN,' AND TO WHICH 'THE LIFE OF
EVERY COMMUNIST IS UNCONDITIONALLY CONSECRATED.'  ... .  ALSO, THE
BROWDER REPORT, BY CHARACTERIZING THE VOORHIS ACT AS 'AN EXTREME
EXAMPLE OF THE MOST VICIOUS AND OPPRESSIVE EXCEPTIONAL LAWS'  ...
INDICATES THAT THE ORGANIZATIONAL DISAFFILIATION WAS IN ACCORD WITH A
COMINTERN 'CONDITION' THAT 'IN EVERY COUNTRY WHERE, IN CONSEQUENCE OF
MARTIAL LAW OR OF OTHER EXCEPTIONAL LAWS, THE COMMUNISTS ARE UNABLE TO
CARRY ON THEIR WORK LAWFULLY, A COMBINATION OF LAWFUL AND UNLAWFUL WORK
IS ABSOLUTELY NECESSARY.'  ...  . 

     *         *         *         *         * 

"THE 1929 REORGANIZATION FOLLOWED A SOLUTION DICTATED BY STALIN,
WHICH WAS ADOPTED BY THE COMINTERN, AND ACCEPTED BY RESPONDENT. 
LOVESTONE, GITLOW, AND OTHERS WERE DEPOSED AS LEADERS OF RESPONDENT AND
THE LEADERSHIP PLACED IN A GROUP WHICH INCLUDED WILLIAM Z. FOSTER,
PRESENT NATIONAL CHAIRMAN.  THE REORGANIZATION OF RESPONDENT WAS DUE TO
A FACTIONAL DISPUTE WHICH WAS A REFLECTION OF A STRUGGLE IN THE
COMMUNIST PARTY OF THE SOVIET UNION AND IN THE COMMUNIST INTERNATIONAL
BETWEEN FORCES LED BY STALIN AND THOSE LED BY BUKHARIN.  THE FOSTER
FACTION IN RESPONDENT, REPRESENTING A MINORITY OF ONLY ABOUT 10 PER
CENT, SUPPORTED STALIN WHEREAS THE LOVESTONE-GITLOW FACTION,
REPRESENTING ABOUT 90 PER CENT, SIDED WITH BUKHARIN.  NOTWITHSTANDING
THIS, RESPONDENT COMPLIED WITH THE STALIN-DICTATED SOLUTION.  THE
RECORD CONTAINS NO EVIDENCE OF SUBSEQUENT MATERIAL ORGANIZATIONAL
CHANGES UNTIL MAY OF 1944 WHEN RESPONDENT'S NAME WAS CHANGED TO THE
COMMUNIST POLITICAL ASSOCIATION THEN CHANGED BACK IN 1945 TO THE NAME
COMMUNIST PARTY.  THE CHANGE TO 'CPA' WAS IN THE YEAR FOLLOWING THE
DISSOLUTION OF THE COMINTERN AND, LIKE THE ANNOUNCEMENTS ON THAT
DISSOLUTION, THE CHANGE WAS ASSERTEDLY TO PROMOTE A PEACEFUL CO
EXISTENCE OF THE UNITED STATES AND THE SOVIET UNION.  WHILE OPERATING
UNDER THE NAME 'COMMUNIST POLITICAL ASSOCIATION,' THERE WAS A
DEEMPHASIS ON THE MORE MILITANT PRINCIPLES OF MARXISM-LENINISM AND THE
CURRENT PUBLICATIONS OF THE PARTY PUT FORWARD THE SO-CALLED 'TEHERAN
LINE.'  NO EVIDENCE WAS PRESENTED BY RESPONDENT TO SHOW A BREAK WITH
THE BASIC PRINCIPLES OF THE INTERNATIONAL COMMUNIST MOVEMENT.  THE
LEADERSHIP OF RESPONDENT REMAINED THE SAME. 

"RELEVANT TO THE RECONSTITUTION OF RESPONDENT UNDER THE NAME OF
COMMUNIST PARTY, THE RECORD SHOWS THAT IN APRIL OF 1945 JACQUES DUCLOS,
A SPOKESMAN FOR THE WORLD COMMUNIST MOVEMENT, ISSUED A STATEMENT THE
SUBSTANCE AND EFFECT OF WHICH WAS THAT IT WAS A MISTAKE TO DISSOLVE THE
COMMUNIST PARTY OF THE UNITED STATES  ...  . 

     *         *         *      *         * 

"AFTER PREPARATION THROUGHOUT THE PARTY, RESPONDENT WAS RECONSTITUTED
AS THE COMMUNIST PARTY OF THE UNITED STATES OF AMERICA.  EARL BROWDER,
FOR DEPARTING FROM THE ORTHODOXY OF MARXISM-LENINISM, WAS BRANDED A
'REVISIONIST' AND 'DEVIATIONIST' AND DEPOSED AS THE LEADER.  FOSTER
TOOK OVER AS NATIONAL CHAIRMAN.  OTHERWISE THOSE WHO HAD BEEN OFFICIALS
AND LEADERS OF THE CPA AND THE PARTY BEFORE THAT, WITH A FEW MINOR
EXCEPTIONS, REMAINED THE OFFICERS AND LEADERS OF THE RECONSTITUTED
COMMUNIST PARTY.  UPON TAKING OVER AS NATIONAL CHAIRMAN, FOSTER POINTED
OUT THE NECESSITY FOR REEMPHASIZING THE REVOLUTIONARY LINE OF MARXISM
LENINISM.  IN A REPORT TO THE RECONSTITUTION CONVENTION, SUBSEQUENTLY
PUBLISHED IN POLITICAL AFFAIRS, FOSTER DECLARED 'OUR PARTY HAS SUDDENLY
REVERTED TO ITS BASIC COMMUNIST PRINCIPLES' AND 'AS NEVER BEFORE, WE
MUST TRAIN OUR PARTY IN THE FUNDAMENTALS OF MARXISM-LENINISM.'  ...  . 

     *     *         *         *         * 

"AS PREVIOUSLY FOUND, FOSTER BECAME A LEADING OFFICER IN RESPONDENT
IN 1929 AS A RESULT OF A SOVIET UNION DIRECTIVE.  HE HAS BEEN NATIONAL
CHAIRMAN SINCE THE 1945 RECONSTITUTION.  A PRIOR LETTER OF HIS TO
RESPONDENT'S NATIONAL COMMITTEE IN WHICH HE OPPOSED BROWDER'S POLICIES
HAD BEEN SUPPRESSED FROM RESPONDENT'S MEMBERSHIP BUT HIS POSITION SET
FORTH IN THE LETTER WAS APPROVED IN THE DUCLOS STATEMENT WHILE
BROWDER'S POLICIES WERE CONDEMNED.  FOR A NUMBER OF YEARS PRIOR TO
RESPONDENT'S ANNOUNCED DISAFFILIATION FROM THE COMMUNIST INTERNATIONAL,
FOSTER WAS AN OFFICIAL OF THE INTERNATIONAL.  HE HAS BEEN TO THE SOVIET
UNION ON NUMEROUS OCCASIONS ON PARTY BUSINESS  ...  . 

     *         *         *         *         * 

"IN ADDITION TO FOSTER, A NUMBER OF RESPONDENT'S OTHER PRESENT
LEADERS HAVE BEEN FUNCTIONARIES OF RESPONDENT SINCE THE TIME OF THE
COMMUNIST INTERNATIONAL, HAVE BEEN TO THE SOVIET UNION ON PARTY
BUSINESS, AND HAVE BEEN INDOCTRINATED AND TRAINED IN THE SOVIET UNION
ON COMMUNIST STRATEGY AND POLICIES.  THESE LEADERS HAVE TAUGHT IN PARTY
SCHOOLS, WRITTEN FOR THE PARTY PRESS, AND SPOKEN AT PARTY MEETINGS, ON
VARIOUS PHASES OF MARXISM-LENINISM, INCLUDING THE LEADING POSITION OF
THE SOVIET UNION, PROLETARIAN INTERNATIONALISM, AND THE NECESSITY OF
REVOLUTIONARY OVERTHROW OF IMPERIALIST NATIONS, PARTICULARLY THE UNITED
STATES  ...  .           *         *         *         *         * 

"THE CONTINUANCE IN OFFICE OF MOSCOW-TRAINED LEADERS OF RESPONDENT
WHO WERE FUNCTIONARIES DURING THE PERIOD THAT RESPONDENT WAS AN OPEN
MEMBER OF THE OPEN, FORMAL ORGANIZATION OF THE WORLD COMMUNIST
MOVEMENT, AND THE ABSENCE OF ANY SUBSTANTIAL EVIDENCE SHOWING A
REPUDIATION BY RESPONDENT'S LEADERS OF THE PROGRAM AND POLICY OF THE
WORLD COMMUNIST MOVEMENT, AS WELL AS THE FACT THAT MARXISM-LENINISM
CONTINUES TO BE BASIC TO RESPONDENT, ARE ALL PROBATIVE OF THE ISSUES
HEREIN ...  . 

     *         *   *         *         *    "THE REORGANIZATION OF
RESPONDENT'S LEADERSHIP PURSUANT TO STALIN'S SOLUTION FOR THE 1929
FACTIONAL DISPUTE,  ...  WAS SUPERVISED BY A SOVIET UNION
REPRESENTATIVE SENT TO THE UNITED STATES FOR THAT PURPOSE.  A NUMBER OF
INDIVIDUALS WERE IDENTIFIED AS HAVING IN THE PAST BEEN IN THE UNITED
STATES AS REPRESENTATIVES FROM THE SOVIET UNION TO SUPERVISE THE
CARRYING OUT OF VARIOUS POLICIES, PROGRAMS, AND ACTIVITIES BY
RESPONDENT.  RESPONDENT'S ACCEPTANCE OF THE AUTHORITY OF THESE FOREIGN
REPRESENTATIVES WAS REQUIRED BY THE RULE OF THE COMMUNIST INTERNATIONAL
THAT: 

"THE E.C.C.I. (EXECUTIVE COMMITTEE) AND ITS PRESIDIUM HAVE THE RIGHT
TO SEND THEIR REPRESENTATIVES TO THE VARIOUS SECTIONS OF THE COMMUNIST
INTERNATIONAL.  SUCH REPRESENTATIVES RECEIVE THEIR INSTRUCTIONS FROM
THE E.C.C.I. OR FROM ITS PRESIDIUM, AND ARE RESPONSIBLE TO THEM FOR
THEIR ACTIVITIES.  REPRESENTATIVES OF THE E.C.C.I. HAVE THE RIGHT TO
PARTICIPATE IN MEETINGS OF THE CENTRAL PARTY BODIES AS WELL AS OF THE
LOCAL ORGANIZATIONS OF THE SECTIONS TO WHICH THEY ARE SENT ...  .
REPRESENTATIVES OF THE E.C.C.I. ARE ESPECIALLY OBLIGED TO SUPERVISE THE
CARRYING OUT OF THE DECISIONS OF THE WORLD CONGRESSES AND OF THE
EXECUTIVE COMMITTEE OF THE COMMUNIST INTERNATIONAL.'  ...  . 

     *         *         *         *      * 

"EISLER IS THE ONLY FOREIGN REPRESENTATIVE SHOWN BY THE RECORD TO
HAVE BEEN IN THE UNITED STATES SUBSEQUENT TO THE ANNOUNCED DISSOLUTION
OF THE COMMUNIST INTERNATIONAL.  RESPONDENT CEASED OPEN AFFILIATION
WITH THE COMINTERN TO AVOID IDENTIFICATION AS A FOREIGN REPRESENTATIVE
IN THE UNITED STATES AND THE COMINTERN AS AN OPEN ORGANIZATION WAS
DISSOLVED IN 1943 FOR SOVIET TACTICAL REASONS.  THE ABSENCE OF FURTHER
SHOWING AS TO FOREIGN REPRESENTATIVES DOES NOT ITSELF, IN THE CONTEXT
OF THE RECORD, INDICATE ANY CHANGE IN RESPONDENT'S NATURE OR
CHARACTER. 

     *         *         *         *         * 

"RESPONDENT'S POLICIES, PROGRAMS, AND ACTIVITIES WERE ORIGINALLY
FORMULATED AND CARRIED OUT PURSUANT TO DIRECTIVES OF THE FOREIGN
LEADERSHIP OF THE WORLD COMMUNIST MOVEMENT.  SUCH POLICIES, PROGRAMS,
AND ACTIVITIES OF RESPONDENT HAVE BEEN CONSISTENTLY APPLIED THROUGHOUT
RESPONDENT'S EXISTENCE IN THE UNITED STATES WITHOUT CHANGE OR
REPUDIATION.  VARIOUS TACTICAL FLUCTUATIONS IN EMPHASIS HAVE FOLLOWED
THOSE LAID DOWN BY THE WORLD COMMUNIST MOVEMENT.  AN EXAMINATION OF
RESPONDENT'S CURRENT ACTIVITIES SHOWS RESPONDENT IS STILL PURSUING
POLICIES ENUNCIATED BY THE SOVIET UNION THROUGH THE COMMUNIST
INTERNATIONAL  ...  . 

     *        *         *         *         * 

"  ...  RESPONDENT'S WITNESSES WERE UNABLE TO CITE A SINGLE INSTANCE
THROUGHOUT ITS HISTORY WHERE, IN TAKING A POSITION ON A QUESTION WHICH
FOUND THE VIEWS OR POLICIES OF THE SOVIET UNION AND THE UNITED STATES
GOVERNMENT IN CONFLICT, THE CPUSA HAD AGREED WITH THE ANNOUNCED
POSITION OF THE UNITED STATES; NOR COULD THEY SHOW A SINGLE INSTANCE
WHERE THE CPUSA HAS DISAGREED WITH THE SOVIET UNION ON ANY POLICY
QUESTION WHERE BOTH RESPONDENT AND THE SOVIET UNION HAVE ANNOUNCED A
POSITION. 

"THE TESTIMONY OF DR. MOSELY AND DOCUMENTS SUBMITTED THROUGH HIM
EMBRACED A TREMENDOUS AREA OF INTERNATIONAL QUESTIONS ON WHICH
RESPONDENT AND THE SOVIET UNION HAVE TAKEN POSITIONS  ...  .  THE
UNIFORMITY IS CONSTANT AND ON A WIDE VARIETY OF QUESTIONS, AND IS
CORROBORATED BY OTHER EVIDENCE OF RECORD. 

"IT IS A MATERIAL CONSIDERATION IN VIEWING THE SPREAD OF THIS
EVIDENCE SPANNING THIRTY-ODD YEARS THAT RESPONDENT, FOR THE FIRST
TWENTY SUCH YEARS IN THIS AREA OF ACTIVITY, WAS REQUIRED BY THE
'CONDITIONS' FOR MEMBERSHIP IN THE COMMUNIST INTERNATIONAL TO CONFORM
TO THE 'PROGRAMME AND DECISIONS' OF THE COMINTERN IN ITS 'PROPAGANDA
AND AGITATION'  ...  ; THAT DURING THE YEARS SINCE 1943 RESPONDENT HAS
WITHOUT A SINGLE EXCEPTION, AS BEFORE, CONTINUED TO ADHERE TO THE VIEWS
AND POLICIES OF THE SOVIET UNION; AND THAT ITS WITNESSES WHEN ASKED TO
DO SO WERE UNABLE TO SHOW CONFLICT IN ANY OF THESE POLICIES.  THIS IS
STRONG EVIDENCE THAT THE PREEXISTING RELATIONSHIP BETWEEN RESPONDENT
AND THE SOVIET UNION CONTINUED AS BEFORE, NOTWITHSTANDING THE FORMAL
DISSOLUTION OF THE COMINTERN BY THE SOVIET UNION." 

IT IS ON THE BASIS OF THESE DETAILED FINDINGS THAT THE BOARD AND THE
COURT BELOW PREDICATED THEIR CONCLUSION THAT THE COMMUNIST PARTY WAS
SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED BY THE SOVIET UNION. 
WE CANNOT HOLD THAT THEY ERRED IN THE CONSTRUCTION OF THE STATUTE AND
IN FINDING THAT THE FACTS SHOWN BRING THE PARTY WITHIN IT. 

B. THE "OBJECTIVES COMPONENT."  SECTION 3(3), DEFINING A COMMUNIST
ACTION ORGANIZATION, REQUIRES A FINDING THAT THE ORGANIZATION "OPERATES
PRIMARILY TO ADVANCE THE OBJECTIVES OF THE  ...  WORLD COMMUNIST
MOVEMENT AS REFERRED TO IN SECTION 2 OF THIS TITLE."  ALTHOUGH
ASSERTING THAT THE REFERENCE TO SEC. 2 IS UNCLEAR, THE PARTY OFFERED IN
THE COURT OF APPEALS A CONSTRUCTION OF THIS REQUIREMENT WHICH DEFINES
THE OBJECTIVES OF THE WORLD COMMUNIST MOVEMENT AS (A) OVERTHROW OF
EXISTING GOVERNMENT BY ANY MEANS NECESSARY, INCLUDING FORCE AND
VIOLENCE, (B) ESTABLISHMENT OF A COMMUNIST TOTALITARIAN DICTATORSHIP,
(C) WHICH WILL BE SUBSERVIENT TO THE SOVIET UNION.  SEE SEC. 2(1), (2),
(3), (6).  WE NEED NOT NOW DETERMINE WHETHER THIS INTERPRETATION,
INSOFAR AS IT IMPLIES THAT AN ORGANIZATION MUST OPERATE TO ADVANCE ALL
OF THESE OBJECTIVES IN ORDER TO COME WITHIN THE ACT, IS CORRECT. 
CERTAINLY, THE ELEMENTS WHICH THE PARTY HAS ISOLATED ARE, SINGLY OR
COLLECTIVELY, THE MAJOR "OBJECTIVES" DESCRIBED IN SEC. 2.  THE COURT OF
APPEALS ACCEPTED THE PARTY'S ANALYSIS ARGUENDO, AND ITS JUDGMENT
AFFIRMING THE ORDER OF THE BOARD RESTS ON ITS CONCLUSION THAT THE PARTY
OPERATES TO ADVANCE ALL THREE OF THESE OBJECTIVES.  THIS CONCLUSION IS
SUPPORTED BY THE FINDINGS OF THE BOARD.  IT ADOPTS THE INTERPRETATION
MOST FAVORABLE TO THE PARTY. 

WITHIN THE FRAMEWORK OF THESE DEFINITIONS, THE COURT OF APPEALS HELD
SUFFICIENT TO DEMONSTRATE THE COMMUNIST PARTY'S OBJECTIVE TO OVERTHROW
EXISTING GOVERNMENT THE FINDING OF THE BOARD THAT THE PARTY ADVOCATES
THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE IF NECESSARY.  THE PARTY ARGUES THAT THIS FINDING IS
INADEQUATE TO SATISFY THE CONCEPTION OF OVERTHROW EMBODIED IN SEC. 2(1)
AND (6); THAT UNDER THE COMPULSION OF THE FIRST AMENDMENT THE ACT MUST
BE READ AS REACHING ONLY ORGANIZATIONS WHOSE PURPOSE TO OVERTHROW
EXISTING GOVERNMENT IS EXPRESSED IN ILLEGAL ACTION OR INCITEMENT TO
ILLEGAL ACTION; THAT ADVOCACY OF THE USE OF VIOLENCE "IF NECESSARY"
AMOUNTS AT MOST TO THE PROMULGATION OF ABSTRACT DOCTRINE, NOT
INCITEMENT.  SECTION 2(1) RECITES THAT THE PURPOSE OF THE WORLD
COMMUNIST MOVEMENT IS "BY TREACHERY, DECEIT, INFILTRATION  ...  ,
ESPIONAGE, SABOTAGE, TERRORISM, AND ANY OTHER MEANS DEEMED NECESSARY,
TO ESTABLISH A COMMUNIST TOTALITARIAN DICTATORSHIP IN THE COUNTRIES
THROUGHOUT THE WORLD THROUGH THE MEDIUM OF A WORLD-WIDE COMMUNIST
ORGANIZATION."  SECTION 2(6) RECITES THAT COMMUNIST-ACTION
ORGANIZATIONS "ENDEAVOR TO CARRY OUT THE OBJECTIVES OF THE WORLD
COMMUNIST MOVEMENT BY BRINGING ABOUT THE OVERTHROW OF EXISTING
GOVERNMENTS BY ANY AVAILABLE MEANS, INCLUDING FORCE IF NECESSARY  ...
."  WE THINK THAT AN ORGANIZATION MAY BE FOUND TO OPERATE TO ADVANCE
OBJECTIVES SO DEFINED ALTHOUGH IT DOES NOT INCITE THE PRESENT USE OF
FORCE.  NOR DOES THE FIRST AMENDMENT COMPEL ANY OTHER CONSTRUCTION. 
THE SUBVERSIVE ACTIVITIES CONTROL ACT IS A REGULATORY, NOT A
PROHIBITORY STATUTE.  IT DOES NOT MAKE UNLAWFUL PURSUIT OF THE
OBJECTIVES WHICH SEC. 2 DEFINES.  IN THIS CONTEXT, THE PARTY MISAPPLIES
YATES V. UNITED STATES, 354 U.S. 298, AND DENNIS V. UNITED STATES, 341
U.S. 494, ON WHICH IT RELIES.  SEE BARENBLATT V. UNITED STATES, 360
U.S. 109; UPHAUS V. WYMAN, 360 U.S. 72; AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382. 

C. THE EVIDENTIARY CONSIDERATIONS OF SECTION 13(E); THE STRIKING BY
THE COURT OF APPEALS OF A SUBSIDIARY FINDING UNDER SECTION 13(E)(7). 
IS A COMMUNIST-ACTION ORGANIZATION, THE BOARD SHALL TAKE INTO
CONSIDERATION THE EXTENT OF ITS CONDUCT IN EIGHT ENUMERATED
DIMENSIONS.  ACCORDINGLY, THE BOARD MADE BASIC FINDINGS OF FACT IN
EACH, AND ON THEM BASED CONCLUSIONS.  THE PARTY ATTACKS EACH CONCLUSION
AS BASED UPON A MISINTERPRETATION OR MISAPPLICATION OF THE STATUTORY
CONSIDERATIONS. 

AS TO THREE OF THESE CONSIDERATIONS UPON WHICH THE BOARD PLACED
SUBSTANTIAL RELIANCE IN ITS DETERMINATION THAT THE COMMUNIST PARTY IS
CONTROLLED BY THE SOVIET UNION AND OPERATES PRIMARILY TO ADVANCE THE
OBJECTIVES OF THE WORLD COMMUNIST MOVEMENT - THE EXTENT TO WHICH ITS
POLICIES ARE FORMULATED AND CARRIED OUT AND ITS ACTIVITIES PERFORMED
PURSUANT TO DIRECTIVES OR TO EFFECTUATE POLICIES OF THE SOVIET UNION
(SEC. 13(E)(1)), THE EXTENT TO WHICH ITS PRINCIPAL LEADERS OR A
SUBSTANTIAL NUMBER OF ITS MEMBERS ARE SUBJECT TO OR RECOGNIZE THE
DISCIPLINARY POWER OF THE SOVIET UNION (SEC. 13(E)(6)), AND THE EXTENT
TO WHICH ITS PRINCIPAL LEADERS OR A SUBSTANTIAL NUMBER OF ITS MEMBERS
CONSIDER THE ALLEGIANCE THEY OWE TO THE UNITED STATES AS SUBORDINATE TO
THEIR OBLIGATIONS TO THE SOVIET UNION (SEC.  13(E)(8)) - THE PARTY
CONTENDS THAT THE CONCLUSIONS OF THE BOARD ARE NOT SUPPORTED BY ITS
FINDINGS OF FACT.  WE HAVE CONSIDERED THE BOARD'S REPORT AND FIND THE
PARTY'S CONTENTION WITHOUT MERIT. 

AS TO THREE OTHER CONSIDERATIONS - THE EXTENT TO WHICH AN
ORGANIZATION RECEIVES FINANCIAL OR OTHER AID FROM THE FOREIGN
GOVERNMENT OR FOREIGN ORGANIZATION CONTROLLING THE WORLD COMMUNIST
MOVEMENT (SEC. 13(E)(3)), THE EXTENT TO WHICH IT SENDS ITS MEMBERS TO A
FOREIGN COUNTRY FOR INSTRUCTION AND TRAINING IN THE PRINCIPLES,
TACTICS, ETC., OF THE WORLD COMMUNIST MOVEMENT (SEC. 13(E)(4)), AND THE
EXTENT TO WHICH IT REPORTS TO THE FOREIGN GOVERNMENT OR FOREIGN
ORGANIZATION CONTROLLING THE WORLD COMMUNIST MOVEMENT (SEC. 13(E)(5)) -
THE BOARD FOUND, RESPECTIVELY, THAT THE COMMUNIST PARTY HAD RECEIVED
FINANCIAL AID FROM THE SOVIET UNION AND THE COMINTERN, AND HAD SENT ITS
MEMBERS TO THE SOVIET UNION FOR TRAINING, PRIOR TO ABOUT 1940, BUT THAT
THERE WAS NO EVIDENCE THAT THESE ACTIVITIES CONTINUED AFTER THAT TIME,
AND THAT THE COMMUNIST PARTY "UPON OCCASION" REPORTS TO THE SOVIET
UNION.  FROM A READING OF ITS MODIFIED REPORT ON SECOND REMAND, IT DOES
NOT APPEAR THAT THE BOARD RELIED ON THESE THREE FINDINGS TO SUPPORT ITS
ULTIMATE DETERMINATION; RATHER IT REGARDED THEM AS INCONCLUSIVE, EXCEPT
INSOFAR AS SOVIET FINANCIAL AID TO THE PARTY DURING THE PERIOD BEFORE
IT BECAME A GOING ORGANIZATION COULD BE CONSIDERED "A TILE IN THE
MOSAIC," AND INSOFAR AS FOREIGN-TRAINED PARTY MEMBERS THEMSELVES SERVED
AS INSTRUCTORS IN PARTY SCHOOLS IN THE UNITED STATES AT LATER TIMES
WHEN THERE WAS NO EVIDENCE OF CONTINUED FOREIGN TRAINING AS SUCH.  THE
PARTY ARGUES THAT THE BOARD'S FINDINGS REQUIRED IT TO CONCLUDE THAT
EVIDENCE PERTINENT TO THE CONSIDERATIONS OF SEC. 13(E)(3), (4), AND (5)
TENDED TO NEGATE A FINDING THAT THE PARTY WAS FOREIGN-CONTROLLED.  WE
CANNOT SAY THAT THE BASIC FINDINGS OF THE BOARD COMPELLED THAT
CONCLUSION AND PRECLUDED ITS OWN.  THE BOARD, DIRECTED BY CONGRESS TO
CONSIDER "THE EXTENT TO WHICH" AN ORGANIZATION ENGAGES IN CERTAIN
CLASSES OF CONDUCT, WAS NOT, OF COURSE, OBLIGATED TO MAKE FINDINGS IN
EACH DIMENSION WHICH WOULD BE CONCLUSIVE OF THE ULTIMATE ISSUES BEFORE
IT.  IT WAS REQUIRED ONLY TO CONSIDER EACH OF THESE DIMENSIONS - THIS
IT HAS PAINSTAKINGLY DONE - AND, ON THE WHOLE RECORD BEFORE IT, TO
APPRAISE THE PROBATIVE FORCE OF THE EVIDENCE IN EACH DIMENSION.  SEE
SECRETARY OF AGRICULTURE V. CENTRAL ROIG REF. CO., 338 U.S. 604; 96
CONG. REC. 14530-14534; CF. ID., AT 13764, 15634.  THE BOARD HAS
EXPLAINED IN DETAIL THE FACTORS WHICH URGED IT TO TAKE THE VIEW IT HAS
TAKEN OF THE EVIDENCE CONCERNING FINANCIAL AID, FOREIGN TRAINING AND
REPORTING.  WE CANNOT SAY THAT ON THE BASIS OF ALL ITS FINDINGS IT
ACCORDED INADMISSIBLE WEIGHT TO THESE CONSIDERATIONS. 

BY SEC. 13(E)(2), THE BOARD IS DIRECTED TO CONSIDER, IN DETERMINING
WHETHER A GIVEN ORGANIZATION IS A COMMUNIST-ACTION ORGANIZATION, "THE
EXTENT TO WHICH ITS VIEWS AND POLICIES DO NOT DEVIATE FROM THOSE OF THE
...  FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION" DIRECTING THE WORLD
COMMUNIST MOVEMENT.  IN CONNECTION WITH THIS CONSIDERATION, DR. PHILIP
MOSELY, PROFESSOR OF INTERNATIONAL RELATIONS AT COLUMBIA UNIVERSITY AND
DIRECTOR OF THE UNIVERSITY'S RUSSIAN INSTITUTE, APPEARED AS AN EXPERT
WITNESS FOR THE ATTORNEY GENERAL.  HE ENUMERATED SOME FORTY-FIVE MAJOR
INTERNATIONAL ISSUES DURING THIRTY YEARS WITH RESPECT TO WHICH, HIS
TESTIMONY INDICATED, THERE HAD BEEN NO SUBSTANTIAL DIFFERENCE BETWEEN
THE ANNOUNCED POSITIONS OF THE SOVIET UNION AND THE COMMUNIST PARTY. 
(FN12)  AS TO EACH ISSUE, DOCUMENTS REPRESENTATIVE OF THE RESPECTIVE
VIEWS OF THE SOVIET AND THE PARTY WERE IDENTIFIED BY DR. MOSELY AND PUT
INTO THE RECORDS AS EXHIBITS.  BOTH THE BOARD AND THE COURT OF APPEALS
CREDITED DR. MOSELY'S TESTIMONY AND PLACED SIGNIFICANT RELIANCE ON IT
IN CONCLUDING THAT THE COMMUNIST PARTY IS SUBSTANTIALLY DOMINATED BY
THE SOVIET UNION.    THE PARTY URGES TWO CONTENTIONS RELATING TO THIS
ASPECT OF THE CASE.  THE FIRST IS THAT THE MOSELY EVIDENCE HAS NO
TENDENCY TO PROVE NON-DEVIATION, WITHIN THE MEANING OF SEC. 13(E)(2),
AND NO RATIONAL RELEVANCE TO THE ULTIMATE ISSUE OF SOVIET DOMINATION OF
THE PARTY, BECAUSE DR. MOSELY DID NOT ESTABLISH THAT AS TO EACH OF THE
INTERNATIONAL ISSUES CONCERNING WHICH SOVIET UNION AND PARTY VIEWS
COINCIDED, THE ANNOUNCED SOVIET POSITION ANTEDATED THAT OF THE PARTY,
(FN13) NOR DID DR. MOSELY TESTIFY THAT THE COINCIDENCE OF VIEWS
EVIDENCED PARROTING OF THE SOVIET POSITION BY THE PARTY - INDEED, HE
EXPRESSLY DECLINED, AS A MATTER OF EXPERT JUDGMENT, TO DRAW ANY
INFERENCE FROM THE COINCIDENCE ALONE WITH RESPECT TO THE REASONING
PROCESSES BY WHICH THE PARTY ARRIVED AT ITS VIEWS.  THE PARTY CONTENDS
THAT UNDER SEC. 13(E)(2) THE BOARD WAS NOT AUTHORIZED TO CONSIDER
EVIDENCE MERELY OF SAMENESS OF POLICY, BUT THAT SAMENESS WOULD BECOME
RELEVANT ONLY AFTER THE ATTORNEY GENERAL HAD SHOWN THAT THE PARTY TOOK
ITS POSITION SUBSEQUENT TO, AND NOT INDEPENDENTLY OF, THE ANNOUNCED
POLICY OF THE SOVIET.  SECOND, THE PARTY ARGUES THAT THE BOARD ERRED IN
REFUSING TO LET IT SHOW, BOTH BY CROSS-EXAMINATION OF DR. MOSELY AND BY
PROFFERED ORIGINAL EVIDENCE, THAT MANY OTHER, ASSERTEDLY NON-COMMUNIST
GROUPS AND INDIVIDUALS ALSO EXPRESSED, CONTEMPORANEOUSLY WITH THE
SOVIET UNION AND THE PARTY, VIEWS IDENTICAL TO THOSE IN WHICH THE TWO
CONCURRED - AND, FURTHER, THAT THE VIEWS WERE CORRECT. 

WE DO NOT AGREE THAT THE BOARD WAS NOT ENTITLED TO CONSIDER AND
EVALUATE EVIDENCE OF A CONSISTENT IDENTITY OF POLICIES OF AN
ORGANIZATION AND THE SOVIET UNION UNTIL THE GOVERNMENT HAD SHOWN THE
TEMPORAL ANTECEDENCE OF THE SOVIET'S POSITION AND NEGATIVED THE
POSSIBILITY THAT INDEPENDENT REASONING PROCESSES BROUGHT ABOUT THE
IDENTITY.  HERE THE BOARD FOUND THAT THE COINCIDENCE OF POLICIES
EXTENDED OVER A VAST AREA OF SUBJECT MATTER, WAS ABSOLUTELY INVARIANT
DURING MORE THAN THIRTY YEARS - THE ENTIRE LIFE OF THE PARTY - AND WAS
UNBROKEN EVEN IN THE FACT OF SHARP REVERSALS IN THE SOVIET'S VIEWS. 
DEVIATION, DOES NOT PURPORT TO ESTABLISH A LITMUS TEST OF DOMINATION OR
CONTROL, REQUIRING SOME FIXED MINIMUM LEVEL OF POLICY-PARROTING.  THIS
REQUIREMENT IS SATISFIED BY CONSIDERATION OF WHATEVER IS LOGICALLY
RELEVANT IN THIS REGARD.  OF COURSE, THE GOVERNMENT WOULD HAVE
ESTABLISHED A STRONGER CASE HAD IT SHOWN NOT ONLY IDENTITY OF VIEWS ON
MORE THAN FORTY ISSUES, BUT ALSO THAT THE SOVIET'S VIEW HAD ALWAYS LED
AND THE PARTY'S ALWAYS FOLLOWED, AND THAT THE SIMILARITY COULD NOT
CONCEIVABLY BE THE RESULT OF AUTONOMOUS APPLICATION OF SIMILAR BASIC
PHILOSOPHICAL PRINCIPLES.  BUT THIS IS NO REASON TO SAY THAT THE BOARD
COULD NOT CONSIDER, AND FORM ITS JUDGMENT ON, THE SHOWING THAT THE
GOVERNMENT DID MAKE IN THE PRESENT PROCEEDING.  CERTAINLY, IF THE ACT
CONTAINED NO SEC. 13(E), DR. MOSELY'S TESTIMONY WOULD BE BOTH RELEVANT
AND SIGNIFICANTLY PROBATIVE WITH RESPECT TO THE ISSUE OF SOVIET
DOMINATION OF THE PARTY.  TO HOLD THAT SEC. 13(E)(2) MAKES IT A
CONDITION PRECEDENT TO BOARD CONSIDERATION OF THIS LONG-CONTINUED,
TOTALLY UNWAVERING IDENTITY OF POLICY LINES, THAT THE ATTORNEY GENERAL
ALSO ESTABLISH SUCH ELUSIVE DETERMINANTS AS THE DATES OF BIRTH OF THE
POLICIES AND THE RATIOCINATIVE PROCESSES BY WHICH THEY CAME INTO BEING,
WE WOULD HAVE TO FIND THAT BY SEC. 13(E)(2) CONGRESS MEANT TO LIMIT,
AND SEVERELY LIMIT, THE EVIDENCES OF SOVIET DOMINATION OF WHICH THE
BOARD COULD TAKE ACCOUNT.  THE STRUCTURE OF SEC. 13(E) WILL NOT BEAR
THAT CONSTRUCTION.  (FN14) 

WITH RESPECT TO THE RULINGS PRECLUDING THE PARTY FROM SHOWING CERTAIN
FACTS WHICH WOULD HAVE TENDED TO ESTABLISH THAT THE VIEWS IN WHICH IT
PARALLELED THE SOVIET UNION WERE CORRECT VIEWS, OR WERE REACHED
INDEPENDENTLY, OR WERE ALSO HELD BY OTHER PERSONS, WE DO NOT THINK THAT
THE BOARD ABUSED ITS DISCRETION.  THE QUESTIONS WHICH THE PARTY SOUGHT
TO ASK DR. MOSELY ON CROSS-EXAMINATION RELATING TO THE CORRECTNESS OF
THE PARTY'S VIEWS WERE OF TWO SORTS.  THE FIRST INVOLVED MATTERS OF
VALUE JUDGMENT OR OPINION, CAPABLE OF INTERMINABLE DEBATE BUT INCAPABLE
OF PROOF, AND WHICH, THE BOARD MIGHT REASONABLY HAVE FOUND, WOULD HAVE
ADDED LITTLE TO THE RECORD BEYOND THE WITNESS'S PERSONAL VIEWS.  (FN15)
THE SECOND SORT CALLED FOR ANSWERS OF A MORE OBJECTIVE KIND, BUT
RELATED IN GENERAL TO THE TRUTH OR FALSITY OF PARTICULAR, DETAILED
ASSERTIONS OF FACT SELECTED OUT OF THE VARIOUS DOCUMENTS WHICH THE
ATTORNEY GENERAL HAD PUT IN EVIDENCE AS ILLUSTRATIVE OF THE PARTY'S
POLICIES.  (FN16)  SINCE IN TESTIFYING AS TO THE NATURE OF THOSE
POLICIES DR. MOSELY HAD RELIED ON A WIDE BACKGROUND OF STUDY OF PARTY
WRITINGS, OF WHICH THE EXHIBITS PUT INTO THE RECORD WERE ONLY
EXEMPLARY, AND SINCE EVEN WITH REFERENCE TO THOSE PARTICULAR EXHIBITS
DR. MOSELY'S TESTIMONY RESTED UPON AN EXPERT ANALYSIS OF EACH ARTICLE
READ AS A WHOLE - ITS GENERAL TENOR, DERIVING FROM ITS USE OF LANGUAGE,
ITS SELECTION OF FACTS REPORTED, ITS ARGUMENTATIVE AND EXHORTATIVE
PARTS, IF ANY - LITIGATION OF THE TRUTH VEL NON OF INDIVIDUAL
STATEMENTS OF FACT MIGHT WELL HAVE BEEN REGARDED BY THE BOARD AS
PROMISING TO LEAD INTO DISTRACTING INQUIRIES REGARDING MARGINAL OR
REMOTE ISSUES - WHAT IN A COURT WOULD CONSTITUTE RES INTER ALIOS ACTA -
INCOMMENSURATE WITH THE MATERIALITY OF THE EVIDENCE PRODUCED. 
OBJECTIONS TO BOTH KINDS OF QUESTIONS WERE, IN THE BOARD'S DISCRETION,
PROPERLY SUSTAINED.  AS FOR THE QUESTION WHICH THE PARTY ATTEMPTED TO
PUT TO DR. MOSELY CONCERNING APPROXIMATELY HALF OF THE INTERNATIONAL
ISSUES WHICH HE DISCUSSED, WHETHER IN EACH CASE AN INFORMED AMERICAN
OBSERVER, IN THE EXERCISE OF INDEPENDENT JUDGMENT AND SENSITIVE TO THE
BEST INTERESTS OF THE UNITED STATES, MIGHT NOT ALSO REASONABLY HAVE
ARRIVED AT THE VIEW HELD BY THE PARTY AND THE SOVIET, (FN17) THE
QUESTION WAS NOT IMPROPERLY DISALLOWED AS BEYOND THE PERMISSIBLE SCOPE
OF CROSS-EXAMINATION.  DR. MOSELY DID NOT PURPORT ON DIRECT EXAMINATION
TO ESTABLISH THE THOUGHT PROCESSES OR THE POLITICAL PROCESSES BY WHICH
THE SOVIET AND THE PARTY ARRIVED AT THEIR POSITIONS, BUT ONLY THAT THE
POSITIONS WERE IDENTICAL.  THE PARTY WAS PERMITTED TO SHOW, AND TWO OF
ITS WITNESSES TESTIFIED, ON BOTH DIRECT AND CROSS-EXAMINATION, THAT THE
POLICIES OF THE PARTY WERE ADOPTED IN THE AUTONOMOUSLY REASONED BELIEF,
IN EACH CASE, THAT A PARTICULAR POLICY WAS SOUND AND IN THE BEST
INTERESTS OF THE AMERICAN PEOPLE.  THE BOARD, IN ITS MODIFIED REPORTS,
TOOK ACCOUNT OF AND EVALUATED THIS TESTIMONY.  IT WAS NOT PREJUDICIAL
THAT THE PARTY WAS NOT ALLOWED TO USE THE GOVERNMENT'S EXPERT WITNESS
TO NEGATIVE CAUSAL CONNECTIONS WHICH HIS TESTIMONY FOR THE GOVERNMENT
DID NOT SEEK TO SHOW. 

THE PARTY ALSO ARGUES THAT IT SHOULD HAVE BEEN PERMITTED TO
DEMONSTRATE, BY CROSS-EXAMINATION OF DR. MOSELY AND BY ORIGINAL
EVIDENCE, THAT MANY OTHER PERSONS THAN THE SOVIET AND THE PARTY HELD
VIEWS SIMILAR TO THOSE ON WHICH THE TWO AGREED.  WE CANNOT HOLD THAT
THE BOARD ERRED IN EXCLUDING THESE SHOWINGS.  THEY TOOK TWO FORMS. 
FIRST, WITH RESPECT TO SOME TWENTY-FIVE INTERNATIONAL ISSUES, THE
QUESTION WAS PUT TO DR. MOSELY WHETHER MANY NON-COMMUNIST COMMENTATORS
DID NOT ALSO SUPPORT THE VIEW EXPOUNDED BY THE PARTY.  (FN18)  A
SIMILAR QUESTION WAS ASKED OF A WITNESS FOR THE PARTY CONCERNING ONE
MORE ISSUE.  SECOND, WITH RESPECT TO SOMEWHAT MORE THAN THIRTY ISSUES,
THE PARTY OFFERED TO ESTABLISH, BY QUESTIONING DR. MOSELY AND BY
DOCUMENTS PROFFERED IN EVIDENCE, THAT PARTICULAR NAMED INDIVIDUALS AND
GROUPS HAD CONCURRED IN THE VIEWS OF THE PARTY ON EACH INDIVIDUAL
ISSUE.  (FN19)  THE MOST THAT THE PARTY COULD HAVE PROVED, HAD IT BEEN
ALLOWED TO MAKE THE OFFERED SHOWINGS, WAS THAT ON THE SUBJECT OF EACH
SPECIFIC, ISOLATED ONE AMONG THE FORTY-FIVE INTERNATIONAL ISSUES
ENUMERATED, A CONSIDERABLE NUMBER OF PERSONS NOT SOVIET-DOMINATED TOOK
POSITIONS PARALLEL TO THOSE OF THE SOVIET AND THE PARTY.  THIS IS ONLY
TO BE EXPECTED IN THE CASE OF ISSUES OF THIS CHARACTER.  THE PARTY
NEVER OFFERED TO SHOW, DESPITE WIDE LATITUDE ALLOWED BY THE HEARING
PANEL IN MAKING PROFFERS AFTER SIMILAR PROFFERS HAD BEEN PREVIOUSLY
DISALLOWED, THAT A CONTINUING, SUBSTANTIAL BODY OF INDEPENDENT GROUPS
AND PERSONS CONCURRED WITH THE PARTY ON A SIGNIFICANT AGGREGATE NUMBER
OF POLICIES AMONG THE FORTY-FIVE.  OF THE PARTICULAR SOURCES MENTIONED
IN THE PARTY'S SEPARATE QUESTIONS AND OFFERS OF PROOF, THE GREATEST
NUMBER OF ISSUES WITH REFERENCE TO WHICH A SINGLE SOURCE RECURS - THE
NEW YORK TIMES, OR INDIVIDUALS WRITING IN THE TIMES - IS TEN OR LESS,
AND IN MOST CASES THE AGREEMENT SHOWN IS WITH ONLY A PORTION OF THE
PARTY'S POSITION.  NO OTHER SOURCE OCCURS MORE THAN ROUGHLY HALF A
DOZEN TIMES; MOST, TWO OR THREE TIMES.  (FN20)  ON THE BASIS OF THESE
PROFFERS, THE BOARD'S RULINGS DID NOT AMOUNT TO AN ABUSE OF THE
DISCRETION WHICH IT MUST BE ALLOWED IN THE CONDUCT OF ITS HEARINGS TO
AVOID OPENING THE SLUICES TO LITIGATION OF THE VIEWS OF A MULTITUDE OF
THIRD PARTIES. 

"FOR THE PURPOSE OF CONCEALING FOREIGN DIRECTION, DOMINATION, OR
CONTROL, OR OF EXPEDITING OR PROMOTING ITS OBJECTIVES," AN ORGANIZATION
ENGAGES IN SPECIFIED SECRET PRACTICES OR OTHERWISE OPERATES ON A SECRET
BASIS.  IN ITS ORIGINAL REPORT THE BOARD CONCLUDED THAT THE COMMUNIST
PARTY ENGAGES IN SECRET PRACTICES FOR BOTH THESE PURPOSES.  THE COURT
OF APPEALS, IN ITS FIRST OPINION, HELD THAT THE FINDING OF SECRET
PRACTICES WAS WARRANTED, BUT THAT THE GOVERNMENT HAD NOT ESTABLISHED BY
THE PREPONDERANCE OF THE EVIDENCE THE PURPOSE OF THE PRACTICES. 
ALTHOUGH NO NEW EVIDENCE ON THE POINT WAS TAKEN ON REMAND, THE BOARD
AGAIN FOUND IN ITS TWO MODIFIED REPORTS THAT THE PURPOSE OF THE
PRACTICES WAS TO PROMOTE THE OBJECTIVES OF THE COMMUNIST PARTY.  (FN21)
IN ITS THIRD OPINION THE COURT OF APPEALS AGAIN HELD THE FINDING AS TO
PURPOSE UNSUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE. 
NEVERTHELESS, HOLDING THAT THE WHOLE RECORD SUPPORTED THE BOARD'S
CONCLUSION THAT THE COMMUNIST PARTY WAS SUBSTANTIALLY DIRECTED,
DOMINATED, OR CONTROLLED BY THE SOVIET UNION, IT REJECTED THE PARTY'S
CONTENTION THAT THE STRIKING OF THIS ONE SUBSIDIARY FINDING AS TO
PURPOSE OF SECRET PRACTICES REQUIRED REMAND OF THE PROCEEDING TO THE
BOARD. 

WE THINK THAT THE COURT OF APPEALS DID NOT ERR IN REFUSING TO REMAND
THE CASE ON THAT GROUND.  CF. LABOR BOARD V. NEWPORT NEWS SHIPBUILDING
& DRY DOCK CO., 308 U.S. 241.  IN THE SUMMARIES OF ITS MODIFIED
REPORTS, THE BOARD DID NOT RELY ON, OR EVEN REFER TO, THE FINDING OF
SECRET PRACTICES.  THUS THIS CASE IS UNLIKE SECURITIES & EXCHANGE
COMM'N V. CHENERY CORP., 318 U.S. 80, AND LABOR BOARD V. VIRGINIA
ELECTRIC & POWER CO., 314 U.S. 469, IN WHICH PROCEEDINGS WERE REMANDED
TO ADMINISTRATIVE AGENCIES WHEN THIS COURT FOUND UNSUPPORTABLE THE
GROUNDS UPON WHICH THE AGENCIES HAD EXPRESSLY RESTED THE ORDERS
REVIEWED.  WHERE A COURT OF APPEALS STRIKES AS NOT SUSTAINED BY THE
EVIDENCE A SUBSIDIARY ADMINISTRATIVE FINDING UPON WHICH THE AGENCY
ITSELF DOES NOT PURPORT TO RELY, IT WOULD BE AN UNWARRANTED EXERCISE OF
REVIEWING POWER TO REMAND FOR FURTHER PROCEEDINGS.  LABOR BOARD V. REED
& PRINCE MFG. CO., 205 F.2D 131 (C.A. 1ST CIR.).  REMAND WOULD BE
CALLED FOR ONLY IF THERE WERE A SOLID REASON TO BELIEVE THAT WITHOUT
THAT SUBSIDIARY FINDING THE AGENCY WOULD NOT HAVE ARRIVED AT THE
CONCLUSION AT WHICH IT DID ARRIVE.  READING THE MODIFIED REPORTS OF THE
BOARD IN THE PRESENT CASE - REPORTS WRITTEN AFTER THE COURT OF APPEALS
HAD ONCE HELD THE FINDING AS TO THE PURPOSE OF THE PARTY'S SECRET
PRACTICES UNSUPPORTED - THIS COURT CANNOT CONCLUDE THAT THE COURT OF
APPEALS WAS WRONG IN REGARDING THE FINDING STRICKEN AS ONE TO WHICH THE
BOARD DID NOT ATTACH WEIGHT AND WHICH DID NOT INFLUENCE ITS
DETERMINATION. 

D. THE BOARD FINDINGS AS TO THE WORLD COMMUNIST MOVEMENT; EVIDENCE OF
PAST PRACTICES; THE PREPONDERANCE OF THE EVIDENCE.  UNDER THE ACT AN
ORGANIZATION MAY BE FOUND TO BE A COMMUNIST-ACTION ORGANIZATION ONLY IF
THE RELATIONS SPECIFIED IN THE "CONTROL" AND "OBJECTIVES" COMPONENTS OF
SEC. 3(3) EXIST BETWEEN IT AND THE "WORLD COMMUNIST MOVEMENT REFERRED
TO IN SECTION 2  ...  ."  IN THE PRESENT PROCEEDING, THE BOARD, AFTER
RECOGNIZING THAT "IN SECTION 2 OF THE ACT CONGRESS HAS FOUND THE
EXISTENCE OF A WORLD COMMUNIST MOVEMENT AND HAS DESCRIBED ITS
CHARACTERISTICS," SET FORTH ITS OWN DESCRIPTION, BASED ON THE EVIDENCE
PRESENTED IN THIS RECORD, OF CONTEMPORARY COMMUNIST INSTITUTIONS IN
THEIR INTERNATIONAL ASPECT, AND PARTICULARLY OF THE ROLE OF THE SOVIET
UNION IN THOSE INSTITUTIONS.  THE PARTY ARGUES THAT BECAUSE THIS
DESCRIPTION DOES NOT DUPLICATE IN ALL DETAILS THAT OF SEC. 2 OF THE
ACT, THE WORLD COMMUNIST MOVEMENT TO WHICH THE BOARD FOUND THAT THE
COMMUNIST PARTY BORE THE REQUIRED STATUTORY RELATIONSHIP IS NOT THE
WORLD COMMUNIST MOVEMENT REFERRED TO IN SEC. 2. 

BUT THE ATTRIBUTES OF THE WORLD COMMUNIST MOVEMENT WHICH ARE DETAILED
IN THE LEGISLATIVE FINDINGS ARE NOT IN THE NATURE OF A REQUISITE
CATEGORY OF CHARACTERISTICS COMPRISING A DEFINITION OF AN ENTITY WHOSE
EXISTENCE VEL NON MUST BE ESTABLISHED, BY PROVING THOSE
CHARACTERISTICS, IN EACH ADMINISTRATIVE PROCEEDING UNDER THE ACT. 
CONGRESS HAS ITSELF FOUND THAT THAT MOVEMENT EXISTS.  THE LEGISLATIVE
DESCRIPTION OF ITS NATURE IS NOT MADE A SUBJECT OF LITIGATION FOR THE
PURPOSE OF ASCERTAINING THE STATUS OF A PARTICULAR ORGANIZATION UNDER
THE ACT.  THE ATTORNEY GENERAL NEED NOT PROVE, IN THE CASE OF EACH
ORGANIZATION AGAINST WHOM A PETITION FOR A REGISTRATION ORDER IS FILED,
THAT THE INTERNATIONAL INSTITUTIONS TO WHICH THE ORGANIZATION CAN BE
SHOWN TO BE RELATED FIT THE PICTURE IN EVERY PRECISE DETAIL SET FORTH
IN SEC. 2.  THE ONLY QUESTION, ONCE AN ORGANIZATION IS FOUND TO HAVE
CERTAIN INTERNATIONAL RELATIONS, IS ONE OF STATUTORY INTERPRETATION -
OF IDENTIFYING THE STATUTORY REFERENT.  ARE THE INSTITUTIONS INVOLVED
IN THOSE RELATIONS THE "WORLD COMMUNIST MOVEMENT" TO WHICH CONGRESS
REFERRED?  WE ARE SATISFIED FROM THE BOARD'S REPORT THAT THE "WORLD
COMMUNIST MOVEMENT" TO WHICH ITS FINDINGS RELATED THE COMMUNIST PARTY
WAS THE SAME "WORLD COMMUNIST MOVEMENT" MEANT BY CONGRESS.    THE PARTY
CONTENDS THAT THE BOARD AND THE COURT BELOW ERRED IN RELYING ON
EVIDENCE OF CONDUCT IN WHICH IT ENGAGED PRIOR TO THE ENACTMENT OF THE
ACT TO SUPPORT THEIR CONCLUSION THAT IT IS PRESENTLY A COMMUNIST-ACTION
ORGANIZATION.  THIS MUST BE REJECTED.  WHERE THE CURRENT CHARACTER OF
AN ORGANIZATION AND THE NATURE OF ITS CONNECTIONS WITH OTHERS IS AT
ISSUE, OF COURSE PAST CONDUCT IS PERTINENT.  INSTITUTIONS, LIKE OTHER
ORGANISMS, ARE PREDOMINANTLY WHAT THEIR PAST HAS MADE THEM.  HISTORY
PROVIDES THE ILLUMINATING CONTEXT WITHIN WHICH THE IMPLICATIONS OF
PRESENT CONDUCT MAY BE KNOWN. 

FINALLY, THE PARTY ASKS THAT WE RE-EXAMINE THE EVIDENCE ADDUCED
BEFORE THE BOARD AND REVIEW THE BOARD'S FINDINGS OF FACT.  THE COURT OF
APPEALS, MADE THOROUGHLY FAMILIAR WITH THIS RECORD BY THREE SUCH RE
EXAMINATIONS, HAS HELD THAT THE BOARD'S CONCLUSIONS, AS EXPRESSED IN
ITS MODIFIED REPORT ON SECOND REMAND, ARE SUPPORTED BY A PREPONDERANCE
OF THE EVIDENCE.  WE SEE NO REASON WHY STILL ANOTHER COURT SHOULD
INDEPENDENTLY REAPPRAISE THE RECORD.  WE HAVE DECLINED TO DO THIS IN
THE CASE OF OTHER AGENCIES AS TO WHOM REVIEWING POWER ON THE FACTS HAS
BEEN VESTED IN THE COURTS OF APPEALS, AND WE FIND NO PURPOSE TO BE
SERVED IN DEPARTING NOW FROM THIS SETTLED POLICY OF APPELLATE REVIEW. 
LABOR BOARD V. PITTSBURGH STEAMSHIP CO., 340 U.S. 498; LABOR BOARD V.
AMERICAN NATIONAL INS. CO., 343 U.S. 395; FEDERAL TRADE COMM'N V.
STANDARD OIL CO., 355 U.S. 396. 

                                       IV. 

THE PARTY'S CONSTITUTIONAL ATTACK ON THE SUBVERSIVE ACTIVITIES
CONTROL ACT OF 1950 ASSAILS VIRTUALLY EVERY PROVISION OF THIS EXTENDED
AND INTRICATE REGULATORY STATUTE.  THE REGISTRATION REQUIREMENT OF SEC.
7, BY DEMANDING SELF-SUBJECTION TO WHAT MAY BE DEEMED A DEFAMATORY
CHARACTERIZATION AND, IN ADDITION, DISCLOSURE OF THE IDENTITY OF ALL
RANK-AND-FILE MEMBERS, IS SAID TO ABRIDGE THE FIRST AMENDMENT RIGHTS OF
FREE EXPRESSION AND ASSOCIATION OF THE COMMUNIST PARTY AND ITS
ADHERENTS.  SEE N.A.A.C.P. V. ALABAMA, 357 U.S. 449; BATES V. LITTLE
ROCK, 361 U.S. 516; CF. THOMAS V. COLLINS, 323 U.S. 516; JOINT ANTI
FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123.  THE PARTY'S
OFFICERS, IT IS ASSERTED, WHO BY FILING A REGISTRATION STATEMENT IN ITS
BEHALF EVIDENCE THEIR STATUS AS ACTIVE MEMBERS OF THE PARTY, ARE
REQUIRED TO INCRIMINATE THEMSELVES IN VIOLATION OF THE FIFTH AMENDMENT,
AS ARE THE INDIVIDUAL MEMBERS WHO MUST REGISTER THEMSELVES UNDER SEC. 8
IF THE PARTY FAILS TO REGISTER OR FAILS TO LIST THEM.  CF. BLAU V.
UNITED STATES, 340 U.S. 159; QUINN V. UNITED STATES, 349 U.S. 155.  THE
PROVISION THAT COMMUNIST ORGANIZATIONS LABEL THEIR PUBLICATIONS IS
ATTACKED AS A PRIOR RESTRAINT ON, AND SUCH SANCTIONS AS DENIAL OF TAX
EXEMPTION ARE ATTACKED AS A PENALTY ON THE EXERCISE OF, THE PARTY'S
CONSTITUTIONALLY PROTECTED FREEDOM OF SPEECH.  CF.  TALLEY V.
CALIFORNIA, 362 U.S. 60; SPEISER V. RANDALL, 357 U.S. 513.  THE VARIOUS
CONSEQUENCES OF THE PARTY'S REGISTRATION FOR ITS INDIVIDUAL MEMBERS -
PROHIBITION OF APPLICATION FOR AND USE OF PASSPORTS, DISQUALIFICATION
FROM GOVERNMENT OR DEFENSE-FACILITY EMPLOYMENT, DISQUALIFICATION FROM
NATURALIZATION, SUBJECTION TO DENATURALIZATION, PROSCRIPTION OF
OFFICERSHIP OR EMPLOYMENT IN LABOR ORGANIZATIONS - ARE SAID TO DENY
THOSE MEMBERS DUE PROCESS OF LAW BY, IN EFFECT, ATTAINTING THEM BY
ASSOCIATION, CF. DE JONGE V. OREGON, 299 U.S. 353; WIEMAN V. UPDEGRAFF,
344 U.S. 183, AND BY SUBJECTING THEM TO POTENTIAL CRIMINAL PROCEEDINGS
IN WHICH THE NATURE OF THE ORGANIZATION, MEMBERSHIP IN WHICH IS AN
ELEMENT OF VARIOUS OFFENSES, MAY NOT BE JUDICIALLY TRIED.  MANY OF THE
STATUTE'S PROVISIONS ARE CHALLENGED AS UNCONSTITUTIONALLY VAGUE, AND IT
IS SAID THAT THE ESTABLISHMENT OF AN AGENCY, THE SUBVERSIVE ACTIVITIES
CONTROL BOARD, WHOSE CONTINUED EXISTENCE DEPENDS UPON ITS FINDING THE
COMMUNIST PARTY A COMMUNIST-ACTION ORGANIZATION WITHIN THE MEANING OF
THE ACT, NECESSARILY BIASES THE AGENCY AND DEPRIVES THE PARTY OF A FAIR
HEARING.  IN FACT, THE PARTY ASSERTS, THE STATUTE AS WRITTEN SO
PARTICULARLY DESIGNATES THE COMMUNIST PARTY AS THE ORGANIZATION AT
WHICH IT IS AIMED, THAT IT CONSTITUTES AN ABOLITION OF THE PARTY BY
LEGISLATIVE FIAT, IN THE NATURE OF A BILL OF ATTAINDER.  THE PROVISIONS
MUST BE READ AS A WHOLE, IT IS SAID; AND WHEN SO READ, THEY ARE SEEN TO
ENVISAGE NOT THE REGISTRATION AND REGULATION OF THE PARTY, BUT THE
IMPOSITION OF IMPOSSIBLE REQUIREMENTS WHOSE ONLY PURPOSE IS TO LAY A
FOUNDATION FOR CRIMINAL PROSECUTION OF THE PARTY AND ITS OFFICERS AND
MEMBERS, IN EFFECT "OUTLAWING" THE PARTY. 

MANY OF THESE QUESTIONS ARE PREMATURELY RAISED IN THIS LITIGATION. 
MERELY POTENTIAL IMPAIRMENT OF CONSTITUTIONAL RIGHTS UNDER A STATUTE
DOES NOT OF ITSELF CREATE A JUSTICIABLE CONTROVERSY IN WHICH THE NATURE
AND EXTENT OF THOSE RIGHTS MAY BE LITIGATED.  UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75; INTERNATIONAL LONGSHOREMEN'S UNION V. BOYD, 347
U.S. 222.  EVEN WHERE SOME OF THE PROVISIONS OF A COMPREHENSIVE
LEGISLATIVE ENACTMENT ARE RIPE FOR ADJUDICATION, PORTIONS OF THE
ENACTMENT NOT IMMEDIATELY INVOLVED ARE NOT THEREBY THROWN OPEN FOR A
JUDICIAL DETERMINATION OF CONSTITUTIONALITY.  "PASSING UPON THE
POSSIBLE SIGNIFICANCE OF THE MANIFOLD PROVISIONS OF A BROAD STATUTE IN
ADVANCE OF EFFORTS TO APPLY THE SEPARATE PROVISIONS IS ANALOGOUS TO
RENDERING AN ADVISORY OPINION UPON A STATUTE OR A DECLARATORY JUDGMENT
UPON A HYPOTHETICAL CASE."  WATSON V. BUCK, 313 U.S. 387, 402.  NO RULE
OF PRACTICE OF THIS COURT IS BETTER SETTLED THAN "NEVER TO ANTICIPATE A
QUESTION OF CONSTITUTIONAL LAW IN ADVANCE OF THE NECESSITY OF DECIDING
IT."  LIVERPOOL, NEW YORK & PHILADELPHIA S.S. CO. V. COMMISSIONERS, 113
U.S. 33, 39; ARIZONA V. CALIFORNIA, 283 U.S. 423; MR. JUSTICE BRANDEIS,
CONCURRING, IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288,
341.  IN PART, THIS PRINCIPLE IS BASED UPON THE REALIZATION THAT, BY
THE VERY NATURE OF THE JUDICIAL PROCESS, COURTS CAN MOST WISELY
DETERMINE ISSUES PRECISELY DEFINED BY THE CONFINING CIRCUMSTANCES OF
PARTICULAR SITUATIONS.  SEE PARKER V. COUNTY OF LOS ANGELES, 338 U.S.
327; RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549.  IN PART IT
REPRESENTS A CONCEPTION OF THE ROLE OF THE JUDICIARY IN A GOVERNMENT
PREMISED UPON A SEPARATION OF POWERS, A ROLE WHICH PRECLUDES
INTERFERENCE BY COURTS WITH LEGISLATIVE AND EXECUTIVE FUNCTIONS WHICH
HAVE NOT YET PROCEEDED SO FAR AS TO AFFECT INDIVIDUAL INTERESTS
ADVERSELY.   SEE THE NOTE TO HAYBURN'S CASE, 2 DALL.  409;
MASSACHUSETTS V. MELLON, 262 U.S. 447.  THESE CONSIDERATIONS, CRUCIAL
AS THEY ARE TO THIS COURT'S POWER AND OBLIGATION IN CONSTITUTIONAL
CASES, REQUIRE THAT WE DELIMIT AT THE OUTSET THE ISSUES WHICH ARE
PROPERLY BEFORE US IN THE PRESENT LITIGATION. 

THIS PROCEEDING WAS BROUGHT BY THE ATTORNEY GENERAL UNDER SEC. 13(A)
OF THE SUBVERSIVE ACTIVITIES CONTROL ACT, SEEKING AN ORDER OF THE BOARD
THAT THE COMMUNIST PARTY REGISTER AS A COMMUNIST-ACTION ORGANIZATION
PURSUANT TO SEC. 7.  THE BOARD HAS ISSUED SUCH AN ORDER, IN ACCORDANCE
WITH SEC. 13(G)(1), WHICH IS HERE REVIEWED, UNDER SEC. 14(A).  THE
EFFECT OF THAT ORDER IS TO REQUIRE THE PARTY TO REGISTER AND TO FILE A
REGISTRATION STATEMENT WITHIN THIRTY DAYS AFTER THE ORDER BECOMES
FINAL, SEC. 7(C)(3), UPON PAIN OF FINE UP TO $10,000 FOR EACH DAY OF
FAILURE TO REGISTER.  WHEN THE ORDER BECOMES FINAL, OTHER CONSEQUENCES
ALSO ENSUE, FOR THE PARTY, FOR ITS MEMBERS AND FOR OTHER PERSONS. 
CERTAIN ACTS OF THE PARTY - DISTRIBUTING ITS PUBLICATIONS THROUGH THE
MAILS OR THROUGH THE INSTRUMENTALITIES OF INTERSTATE OR FOREIGN
COMMERCE, OR CAUSING MATTER TO BE BROADCAST BY RADIO OR TELEVISION,
WITHOUT THE REQUIRED IDENTIFICATION - ARE PROHIBITED, SEC. 10, AND TAX
EXEMPTION IS DENIED IT, SEC. 11.  SPECIFIED ACTS OF ITS MEMBERS - E.G.,
APPLYING FOR OR USING A UNITED STATES PASSPORT, HOLDING GOVERNMENT OR
DEFENSE-FACILITY EMPLOYMENT, HOLDING LABOR UNION OFFICE OR EMPLOYMENT -
ARE FORBIDDEN, SECS. 5, 6, AND THOSE MEMBERS ARE DEFINITIVELY SUBJECT
TO CERTAIN DISQUALIFICATIONS - IF ALIENS, THEY MAY NOT ENTER THE UNITED
STATES, MAY BE DEPORTED, MAY NOT BE NATURALIZED, MAY IN SOME
CIRCUMSTANCES BE DENATURALIZED, WITH QUALIFICATIONS.  8 U.S.C. SECS.
1182, 1251, 1424, 1451.  EMPLOYMENT BY THE PARTY IS NOT "EMPLOYMENT"
FOR PURPOSES OF THE SOCIAL SECURITY ACT, AS AMENDED, 42 U.S.C. SEC.
410; CONTRIBUTIONS TO THE PARTY ARE NOT TAX DEDUCTIBLE, SUBVERSIVE
ACTIVITIES CONTROL ACT OF 1950, SEC. 11.  ACTS BY THIRD PARTIES WITH
REGARD TO THE PARTY OR ITS MEMBERS - THE CONTRIBUTING OF FUNDS OR
SERVICES TO THE PARTY BY GOVERNMENT OR DEFENSE-FACILITY PERSONNEL,
ISSUANCE OF PASSPORTS TO PARTY MEMBERS - ARE, UNDER SPECIFIED
CIRCUMSTANCES, PROHIBITED, SECS. 5, 6.  ALL OF THESE CONSEQUENCES
DEPEND UPON ACTION TAKEN SUBSEQUENT TO THE TIME WHEN THE REGISTRATION
ORDER BECOMES FINAL.  SOME DEPEND UPON ACTION WHICH IS, AT BEST, HIGHLY
CONTINGENT.  (FN22)  THE QUESTION IS WHICH, IF ANY, OF THESE
CONSEQUENCES ARE NOW BEFORE US FOR CONSTITUTIONAL ADJUDICATION, AS
NECESSARILY INVOLVED IN THE DETERMINATION OF THE CONSTITUTIONALITY OF
THE BOARD'S REGISTRATION ORDER. 

A CLOSELY SIMILAR ISSUE WAS PRESENTED TO THIS COURT IN ELECTRIC BOND
& SHARE CO. V. SECURITIES & EXCHANGE COMM'N, 303 U.S. 419.  THAT WAS A
STATUTORY SUIT BROUGHT BY THE SECURITIES AND EXCHANGE COMMISSION TO
ENFORCE AGAINST CERTAIN UTILITY HOLDING COMPANIES THE PROVISIONS OF
SECS. 4(A) AND 5 OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49
STAT.  803.  THE ACT, LIKE THE SUBVERSIVE ACTIVITIES CONTROL ACT, WAS A
STATUTE OF MANY INTRICATE AND INTERLOCKING SECTIONS, WITH A
SEVERABILITY CLAUSE.  ITS FIFTH SECTION PROVIDED THAT HOLDING
COMPANIES, AS DEFINED, MIGHT REGISTER WITH THE COMMISSION AND FILE A
REGISTRATION STATEMENT CONTAINING SPECIFIED INFORMATION:  UNLESS SUCH A
COMPANY REGISTERED WITHIN THE TIME FIXED, SEC. 4(A) SUBJECTED IT TO
WHAT THE COURT REFERRED TO AS THE "PENALTY FOR FAILURE TO REGISTER":
CRIMINAL LIABILITY FOR ENGAGING IN BUSINESS IN INTERSTATE COMMERCE; OR
FOR SELLING, TRANSPORTING, OWNING OR OPERATING UTILITY ASSETS FOR THE
TRANSPORTATION OF GAS OR ELECTRICITY IN INTERSTATE COMMERCE; OR FOR
USING THE MAILS OR INSTRUMENTALITIES OF INTERSTATE COMMERCE TO
DISTRIBUTE OR ACQUIRE UTILITY SECURITIES, OR TO NEGOTIATE, MAKE, OR
TAKE ANY STEP IN PERFORMING, SERVICE, SALES OR CONSTRUCTION CONTRACTS
FOR PUBLIC UTILITY OR HOLDING COMPANIES; OR FOR OWNING, CONTROLLING OR
HOLDING VOTING STOCK IN ANY SUBSIDIARY ENGAGING IN ANY OF THESE
ACTIVITIES.  (FN23)  ONCE A HOLDING COMPANY REGISTERED, PRESCRIBED
CONSEQUENCES ENSUED, SOME AUTOMATIC, (FN24) SOME REQUIRING THE
INITIATION OF FURTHER PROCEEDINGS BY THE COMMISSION.  IT WAS UNLAWFUL
FOR ANY REGISTERED HOLDING COMPANY OR ANY SUBSIDIARY COMPANY OF A
REGISTERED HOLDING COMPANY TO SELL OR OFFER FOR SALE ANY SECURITY OF
THE HOLDING COMPANY FROM HOUSE TO HOUSE, OR TO CAUSE ANY OFFICER OR
EMPLOYEE OF A SUBSIDIARY COMPANY TO SELL SUCH A SECURITY; IT WAS
UNLAWFUL FOR ANY REGISTERED HOLDING COMPANY TO BORROW OR TO RECEIVE ANY
EXTENSION OF CREDIT FROM ANY PUBLIC UTILITY COMPANY IN THE SAME HOLDING
COMPANY SYSTEM; IT WAS UNLAWFUL FOR ANY REGISTERED HOLDING COMPANY OR
ANY SUBSIDIARY OF SUCH A HOLDING COMPANY TO MAKE ANY CONTRIBUTION IN
CONNECTION WITH THE CANDIDACY, NOMINATION, ELECTION OR APPOINTMENT OF
ANY PERSON FOR OR TO ANY OFFICE OR POSITION IN FEDERAL, STATE OR
MUNICIPAL GOVERNMENT OR TO MAKE ANY CONTRIBUTION TO ANY POLITICAL
PARTY; ALL CONTRACTS MADE IN VIOLATION OF ANY PROVISION OF THE ACT WERE
VOID.  OTHER TRANSACTIONS OF REGISTERED COMPANIES WERE PROHIBITED
UNLESS APPROVED BY THE COMMISSION, AND UNDER THE "SIMPLIFICATION"
PROVISIONS OF SEC. 11, THE COMMISSION WAS REQUIRED TO TAKE STEPS TO
BREAK UP THE HOLDING-COMPANY SYSTEMS OF REGISTERED HOLDING COMPANIES. 

THE COMMISSION SUED FOR, AND THE DISTRICT COURT GRANTED, AN
INJUNCTION RESTRAINING COMPANIES OF THE ELECTRIC BOND AND SHARE SYSTEM
FROM OPERATING IN VIOLATION OF SEC. 4(A) UNTIL THEY HAD EITHER
REGISTERED UNDER SEC. 5 OR CEASED TO BE HOLDING COMPANIES.  (FN25)  A
CROSS BILL BY THE COMPANIES SEEKING A DECLARATORY JUDGMENT THAT THE ACT
WAS UNCONSTITUTIONAL IN ITS ENTIRETY WAS DISMISSED.  WHEN THE CASE CAME
HERE, THE COMPANIES ARGUED THAT THE SCHEME OF THE ACT WAS A SINGLE,
INTEGRATED WHOLE; THAT THE REGISTRATION SECTIONS, WHICH WERE THE
MECHANISM BY WHICH HOLDING COMPANIES WERE SUBJECTED TO THE STATUTE'S
VARIOUS REGULATORY PROVISIONS, COULD NOT BE SEPARATELY CONSIDERED; AND
THAT THE UNCONSTITUTIONALITY OF THE REGULATORY PROVISIONS INVALIDATED
THE REGISTRATION REQUIREMENT.  THE COURT AFFIRMED THE DECREE, BUT ON
THE BASIS OF A DELIBERATE ABSTENTION FROM CONSIDERATION OF ANY BUT THE
REGISTRATION SECTION, SEC. 5, AS ENFORCED BY THE SANCTIONS OF SEC.
4(A).  NOTING THAT IF THE STATUTE'S SEVERABILITY CLAUSE WERE GIVEN
EFFECT, THE REGISTRATION OBLIGATION COULD BE VALIDLY ENFORCED EVEN
THOUGH ANY OR ALL OF THE "CONTROL" PROVISIONS APPLICABLE TO REGISTERED
COMPANIES WERE UNCONSTITUTIONAL, AND FINDING IN THE LEGISLATIVE HISTORY
NOTHING TO INDICATE THAT THE VARIOUS REGULATORY SECTIONS "WERE INTENDED
TO CONSTITUTE A UNITARY SYSTEM, NO PART OF WHICH CAN FAIL WITHOUT
DESTROYING THE REST," 303 U.S., AT 438-439, THE COURT DECLINED TO
DECIDE THE BROAD CONSTITUTIONAL QUESTIONS PRESSED UPON IT.  LIKEWISE,
THE DISTRICT COURT'S DISMISSAL OF THE CROSS BILL WAS SUSTAINED: 

"  ...  BY THE CROSS BILL, DEFENDANTS SEEK A JUDGMENT THAT EACH AND
EVERY PROVISION OF THE ACT IS UNCONSTITUTIONAL.  IT PRESENTS A VARIETY
OF HYPOTHETICAL CONTROVERSIES WHICH MAY NEVER BECOME REAL.  WE ARE
INVITED TO ENTER INTO A SPECULATIVE INQUIRY FOR THE PURPOSE OF
CONDEMNING STATUTORY PROVISIONS THE EFFECT OF WHICH IN CONCRETE
SITUATIONS, NOT YET DEVELOPED, CANNOT NOW BE DEFINITELY PERCEIVED.  WE
MUST DECLINE THAT INVITATION."  ID., AT 443.    NOT UNTIL EIGHT YEARS
LATER WERE SOME OF THESE OTHER RELATED, IMPORTANT QUESTIONS, AT LAST
PROPERLY PRESENTED, DECIDED.  (FN26) 

THE DECISION IN ELECTRIC BOND & SHARE CONTROLS THE PRESENT CASE. 
THIS ACT, LIKE THE ONE INVOLVED THERE, HAS A SECTION DIRECTING THAT IF
ANY OF ITS PROVISIONS, OR ANY OF ITS APPLICATIONS, IS HELD INVALID, THE
REMAINING PROVISIONS AND OTHER POSSIBLE APPLICATIONS SHALL NOT BE
AFFECTED.  THE AUTHORITATIVE LEGISLATIVE HISTORY CLEARLY DEMONSTRATES
THAT A MAJOR PURPOSE OF THE ENACTMENT WAS TO REGULATE COMMUNIST-ACTION
ORGANIZATIONS BY MEANS OF THE PUBLIC DISCLOSURE EFFECTED BY
REGISTRATION, APART FROM THE OTHER REGULATORY PROVISIONS OF THE ACT. 
(FN27)  SUCH IS, OF COURSE, THE VERY PURPOSE OF THE SEVERABILITY
CLAUSE.  THIS BEING SO, OUR CONSIDERATION OF ANY OTHER PROVISIONS THAN
THOSE OF SEC. 7, REQUIRING COMMUNIST-ACTION ORGANIZATIONS TO REGISTER
AND FILE A REGISTRATION STATEMENT, COULD IN NO WAY EFFECT OUR DECISION
IN THE PRESENT CASE.  WERE EVERY PORTION OF THE ACT PURPORTING TO
REGULATE OR PROHIBIT THE CONDUCT OF REGISTERED ORGANIZATIONS (OR
ORGANIZATIONS ORDERED TO REGISTER) AND OF THEIR MEMBERS, AS SUCH,
UNCONSTITUTIONAL, WE WOULD STILL HAVE TO AFFIRM THE JUDGMENT BELOW. 
EXPATIATION ON THE VALIDITY OF THOSE PORTIONS WOULD REMAIN MERE
PRONOUNCEMENTS, ADDRESSED TO FUTURE AND HYPOTHETICAL CONTROVERSIES. 
THIS IS TRUE WITH REGARD TO THOSE SECTIONS OF THE ACT WHICH PRESCRIBE
CONSEQUENCES LEGALLY ENFORCEABLE AGAINST THE COMMUNIST PARTY ONCE A
FINAL REGISTRATION ORDER IS IN EFFECT AGAINST IT - THE "LABELING" AND
TAX-EXEMPTION DENIAL PROVISIONS OF SECS.  10 AND 11.  THESE ARE
ANALOGOUS TO THE PROSCRIPTION OF SPECIFIED CREDIT TRANSACTIONS, OR
SPECIFIED SECURITY SALES, OR SPECIFIED POLITICAL CONTRIBUTIONS, BY THE
PUBLIC UTILITY HOLDING COMPANY ACT CONSIDERED IN ELECTRIC BOND &
SHARE.  ALTHOUGH THEY BECAME OPERATIVE AS SOON AS A REGISTRATION ORDER
IS MADE FINAL, THEIR APPLICATION REMAINS IN A VERY REAL SENSE
PROBLEMATICAL.  WE CANNOT NOW FORESEE WHAT EFFECT, IF ANY, UPON THE
PARTY THE DENIAL OF TAX EXEMPTION WILL HAVE.  WE DO NOT KNOW WHETHER
THE PARTY NOW HAS, OR WHETHER IT WILL HAVE AT ANY TIME AFTER A BOARD
ORDER GOES INTO EFFECT, ANY TAXABLE INCOME, OR, INDEED, ANY INCOME
WHATEVER.  WE DO NOT KNOW THAT, AFTER SUCH AN ORDER IS IN EFFECT, THE
PARTY WILL WISH TO UTILIZE THE MAILS OR ANY INSTRUMENTALITY OF
INTERSTATE COMMERCE FOR THE CIRCULATION OF ITS PUBLICATIONS.  WE CANNOT
GUESS THE NATURE OF WHATEVER PUBLICATIONS IT MAY WISH TO CIRCULATE OR
THEIR RELATION TO THE PURPOSES AND FUNCTIONS OF THE PARTY.  THESE
CIRCUMSTANCES MAY BE CRITICAL FOR CONSTITUTIONAL DETERMINATION.  IT
WILL NOT DO TO DISCOUNT THEIR SIGNIFICANCE BY SAYING, NOW, THAT NO
DIFFERENCE IN CIRCUMSTANCES WILL EFFECT A DIFFERENT CONSTITUTIONAL
RESULT - THAT THE PRINCIPLES RELEVANT TO A DETERMINATION OF THE
VALIDITY OF THESE STATUTORY PROVISIONS DO NOT DEPEND UPON THE
VARIATIONS IN CIRCUMSTANCES IN WHICH THEY ARE POTENTIALLY APPLICABLE. 
FOR THIS ANALYSIS PRESUPPOSES THAT WE NOW UNDERSTAND WHAT ARE THE
RELEVANT CONSTITUTIONAL PRINCIPLES, WHEREAS THE REASON OF POSTPONING
DECISION UNTIL A CONSTITUTIONAL ISSUE IS MORE CLEARLY FOCUSED BY, AND
RECEIVES THE IMPACT FROM, OCCURRENCE IN PARTICULAR CIRCUMSTANCES IS
PRECISELY THAT THOSE CIRCUMSTANCES MAY REVEAL RELEVANCIES THAT
ABSTRACT, PROSPECTIVE SUPPOSITION MAY NOT SEE OR ADEQUATELY ASSESS. 

THESE CONSIDERATIONS ARE EQUALLY APPROPRIATE IN THE CASE OF THOSE
ORGANIZATION CONCERNING WHICH A FINAL REGISTRATION ORDER IS IN EFFECT,
OR WHICH IMPOSE OBLIGATIONS UPON THEM, OR WHICH SUBJECT THEM TO
DESCRIBED DISABILITIES UNDER CERTAIN CIRCUMSTANCES.  IT IS WHOLLY
SPECULATIVE NOW TO FORESHADOW WHETHER, OR UNDER WHAT CONDITIONS, A
MEMBER OF THE PARTY MAY IN THE FUTURE APPLY FOR A PASSPORT, OR SEEK
GOVERNMENT OR DEFENSE-FACILITY OR LABOR-UNION EMPLOYMENT, OR, BEING AN
ALIEN, BECOME A PARTY TO A NATURALIZATION OR A DENATURALIZATION
PROCEEDING.  NONE OF THESE THINGS MAY HAPPEN.  IF THEY DO, APPROPRIATE
ADMINISTRATIVE AND JUDICIAL PROCEDURES WILL BE AVAILABLE TO TEST THE
CONSTITUTIONALITY OF APPLICATIONS OF PARTICULAR SECTIONS OF THE ACT TO
PARTICULAR PERSONS IN PARTICULAR SITUATIONS.  NOTHING JUSTIFIES
PREVISIONING THOSE ISSUES NOW. 

BUT THE PARTY ARGUES THAT THE THREAT, HOWEVER INDEFINITE, OF FUTURE
APPLICATION OF THESE PROVISIONS TO PENALIZE INDIVIDUALS WHO ARE OR
BECOME ITS MEMBERS, AFFILIATES OR CONTRIBUTORS, WILL EFFECTIVELY DETER
PERSONS FROM ASSOCIATING WITH IT OR FROM AIDING AND SUPPORTING IT.
THUS, THE PROVISIONS EXERCISE A PRESENT EFFECT UPON THE PARTY
SUFFICIENTLY PREJUDICIAL TO JUSTIFY ITS CHALLENGING THEM IN THIS
PROCEEDING.  IN SUPPORT OF THIS CONTENTION, THE PARTY CITES CASES IN
WHICH WE HAVE HELD THAT LITIGANTS HAD "STANDING" TO ATTACK A STATUTE OR
REGULATION WHICH OPERATED TO COERCE OTHER PERSONS TO WITHDRAW FROM
PROFITABLE RELATIONS OR ASSOCIATIONS WITH THE LITIGANTS.  SEE, E.G.,
JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123; PIERCE
V. SOCIETY OF SISTERS, 268 U.S. 510; BUCHANAN V. WARLEY, 245 U.S. 60;
TRUAX V. RAICH, 239 U.S. 33; CF. N.A.A.C.P. V. ALABAMA, 357 U.S. 449;
BATES V. LITTLE ROCK, 361 U.S. 516.  BUT THESE CASES PURPORTED ONLY TO
DISCUSS WHAT ISSUES A LITIGANT MIGHT RAISE, NOT WHEN HE MIGHT RAISE
THEM.  THAT A PROPER PARTY IS BEFORE THE COURT IS NO ANSWER TO THE
OBJECTION THAT HE IS THERE PREMATURELY.  IN NONE OF THE CASES CITED WAS
THE CONSTITUTIONAL ISSUE DECIDED ON A RECORD WHICH SHOWED ONLY
POTENTIAL DETERRENCE OF ASSOCIATION WITH THE LITIGANT ON THE PART OF AN
UNNAMED AND UNCOUNTED NUMBER OF PERSONS.  IN THE REFUGEE COMMITTEE
CASE, THREE ORGANIZATIONS SUED FOR INJUNCTIVE OR DECLARATORY RELIEF,
CHALLENGING THEIR INCLUSION ON THE ATTORNEY GENERAL'S LIST AS COMMUNIST
ORGANIZATIONS.  EACH ALLEGED THAT IT HAD ALREADY SUFFERED INJURY AS A
RESULT OF THE LISTING:  THAT CONTRIBUTORS HAD WITHDRAWN SUPPORT, THAT
PERSONS HAD REFUSED TO TAKE PART IN FUND-RAISING ACTIVITIES, THAT
MEMBERS HAD RESIGNED.  THE CASE CAME HERE ON THE PLEADINGS, AND WE HELD
SUCH ALLEGATIONS SUFFICIENT AS AGAINST A MOTION TO DISMISS.  IN PIERCE
V. SOCIETY OF SISTERS, SUPRA, PRIVATE SCHOOLS WERE PERMITTED TO ATTACK
A STATE COMPULSORY PUBLIC-EDUCATION STATUTE:  THEIR COMPLAINTS HAD
ALLEGED THAT BECAUSE OF THE LAW, STUDENTS WHO OTHERWISE WOULD HAVE
CONTINUED IN ATTENDANCE AT THE SCHOOLS HAD WITHDRAWN.  (FN28)  IN
BUCHANAN V. WARLEY, SUPRA, A CONTRACT HAD BEEN MADE, PERFORMANCE
REFUSED, AND THE STATE COURTS HAD DENIED ENFORCEMENT ON THE GROUND OF
THE CHALLENGED ORDINANCE; AND IN TRUAX V. RAICH, SUPRA, IN WHICH AN
ALIEN EMPLOYEE SUED TO ENJOIN ENFORCEMENT OF A STATUTE REQUIRING
CERTAIN CLASSES OF EMPLOYERS TO RETAIN NOT LESS THAN EIGHTY PER CENT
NATIVE-BORN CITIZENS OR QUALIFIED ELECTORS, RAICH'S EMPLOYER HAD BEEN
ARRESTED FOR VIOLATION OF THE STATUTE AND RAICH HAD BEEN THREATENED
WITH IMMEDIATE DISCHARGE.  IN TERRACE V. THOMPSON, 263 U.S. 197, BOTH
LANDOWNERS AND A PROSPECTIVE TENANT BROUGHT SUIT TO ENJOIN ENFORCEMENT
OF A STATE STATUTE FORBIDDING ALIENS TO HOLD LAND AND PROVIDING THAT
LAND TRANSFERRED TO ALIENS SHOULD BE FORFEIT TO THE STATE.  THE
COMPLAINANTS ALLEGED THAT THEY WERE PREPARED TO ENTER INTO A LEASE AND
WOULD HAVE DONE SO BUT FOR THE STATUTE. 

THE PRESENT PROCEEDING DIFFERS FROM ALL OF THESE.  THE RECORD HERE
DOES NOT SHOW THAT ANY PRESENT MEMBERS, AFFILIATES, OR CONTRIBUTORS OF
THE PARTY HAVE WITHDRAWN BECAUSE OF THE THREATENED CONSEQUENCES TO THEM
OF ITS REGISTRATION UNDER THE SUBVERSIVE ACTIVITIES CONTROL ACT, OR
THAT ANY PROSPECTIVE MEMBERS, AFFILIATES, OR CONTRIBUTORS HAVE BEEN
DETERRED FROM JOINING THE PARTY OR GIVING IT THEIR SUPPORT.  WE CANNOT
KNOW HOW MANY, IF ANY, MEMBERS OR PROSPECTIVE MEMBERS OF THE PARTY ARE
ALSO EMPLOYEES OR PROSPECTIVE EMPLOYEES OF THE GOVERNMENT OR OF DEFENSE
FACILITIES OR LABOR UNIONS, OR HOW MANY, IF ANY, CONTRIBUTORS TO THE
PARTY HOLD GOVERNMENT OR DEFENSE-FACILITY EMPLOYMENT.  IT IS THUS
IMPOSSIBLE TO SAY NOW WHAT EFFECT THE PROVISIONS OF THE ACT AFFECTING
MEMBERS OF A REGISTERED ORGANIZATION WILL HAVE ON THE PARTY.  CF. NEW
JERSEY V. SARGENT, 269 U.S. 328.  TO PASS UPON THE VALIDITY OF THOSE
PROVISIONS WOULD BE TO MAKE ABSTRACT ASSERTIONS OF POSSIBLE FUTURE
INJURY, INDEFINITE IN NATURE AND DEGREE, THE OCCASION FOR
CONSTITUTIONAL DECISION.  IF WE DID SO, WE WOULD BE STRAYING BEYOND OUR
JUDICIAL BOUNDS.  OF COURSE, THE PARTY MAY NOW ASSERT THOSE RIGHTS OF
ITS MEMBERS, SUCH AS THAT OF ANONYMITY, WHICH ARE ALLEGEDLY INFRINGED
BY THE VERY ACT OF ITS FILING A REGISTRATION STATEMENT, AND WHICH COULD
NOT BE OTHERWISE ASSERTED THAN BY RAISING THEM HERE.  N.A.A.C.P. V.
ALABAMA, SUPRA; BATES V. LITTLE ROCK, SUPRA.  BUT THE RIGHTS OF ITS
MEMBERS, AS POTENTIALLY AFFECTED BY THE ACT, TO RECEIVE AND USE
PASSPORTS, SEEK AND HOLD CERTAIN EMPLOYMENT, BE NATURALIZED AND
PRESERVE THEIR CITIZENSHIP ONCE NATURALIZED, ARE NOT OF THIS CATEGORY. 
WE LIMIT OUR CONSIDERATION TO THE CONSTITUTIONALITY OF SEC. 7 AS
APPLIED IN THIS PROCEEDING. 

         V. 

THE CONSTITUTIONAL CONTENTIONS RAISED BY THE PARTY WITH RESPECT TO
THE REGISTRATION REQUIREMENT OF SEC. 7 ARE (A) THAT THAT REQUIREMENT,
IN THE CONTEXT OF THE ACT, IN EFFECT "OUTLAWS" THE PARTY AND IS IN THE
NATURE OF A BILL OF ATTAINDER; (B) THAT COMPELLING ORGANIZATIONS TO
REGISTER AND TO LIST THEIR MEMBERS ON A SHOWING MERELY THAT THEY ARE
FOREIGN-DOMINATED AND OPERATE PRIMARILY TO ADVANCE THE OBJECTIVES OF
THE WORLD COMMUNIST MOVEMENT CONSTITUTES A RESTRAINT ON FREEDOM OF
EXPRESSION AND ASSOCIATION IN VIOLATION OF THE FIRST AMENDMENT; (C)
THAT REQUIRING PARTY OFFICERS TO FILE REGISTRATION STATEMENTS FOR THE
PARTY SUBJECTS THEM TO SELF-INCRIMINATION FORBIDDEN BY THE FIFTH
AMENDMENT; (D) THAT THE ACT VIOLATES DUE PROCESS BY LEGISLATIVE
PREDETERMINATION OF FACTS ESSENTIAL TO BRING THE COMMUNIST PARTY WITHIN
THE DEFINITION OF A COMMUNIST-ACTION ORGANIZATION, AND THAT THE
EVIDENTIARY ELEMENTS PRESCRIBED FOR CONSIDERATION BY THE BOARD BEAR NO
RATIONAL RELATION TO THAT DEFINITION; (E) THAT IN SEVERAL ASPECTS THE
ACT IS UNCONSTITUTIONALLY VAGUE; AND (F) THAT THE SUBVERSIVE ACTIVITIES
CONTROL BOARD IS SO NECESSARILY BIASED AGAINST THE COMMUNIST PARTY AS
TO DEPRIVE IT OF A FAIR HEARING. 

A. "OUTLAWRY" AND ATTAINDER.  OUR DETERMINATION THAT IN THE PRESENT
PROCEEDING ALL QUESTIONS ARE PREMATURE WHICH REGARD ONLY THE
CONSTITUTIONALITY OF THE VARIOUS PARTICULAR CONSEQUENCES OF A
REGISTRATION ORDER TO A REGISTERED ORGANIZATION AND ITS MEMBERS, DOES
NOT FORECLOSE THE PARTY FROM ARGUING - AND IT DOES ARGUE - THAT IN
LIGHT OF THE CUMULATIVE EFFECT OF THOSE CONSEQUENCES THE REGISTRATION
PROVISIONS OF SEC. 7 ARE NOT WHAT THEY SEEM, BUT REPRESENT A
LEGISLATIVE ATTEMPT, BY DEVIOUS MEANS, TO "OUTLAW" THE PARTY.  THE
REGISTRATION REQUIREMENT, THE PARTY CONTENDS, WAS DESIGNED NOT WITH THE
PURPOSE OF HAVING COMMUNIST-ACTION ORGANIZATIONS REGISTER, BUT WITH A
PURPOSE TO MAKE IT IMPOSSIBLE TO REGISTER, BECAUSE OF THE ONEROUS
CONSEQUENCES OF REGISTRATION, AND THUS TO ESTABLISH A PRETEXT FOR
CRIMINAL PROSECUTION OF THE ORGANIZATION AND ITS MEMBERS.  THE ACT IS
SAID TO BE AIMED PARTICULARLY AT THE COMMUNIST PARTY AS AN IDENTIFIABLE
ENTITY, INTENDING TO PUNISH IT, AND IN THIS ASPECT TO CONSTITUTE A BILL
OF ATTAINDER PROHIBITED BY ART. I, SEC. 9, CL. 3 OF THE CONSTITUTION. 

OF COURSE, "ONLY THE CLEAREST PROOF COULD SUFFICE TO ESTABLISH THE
UNCONSTITUTIONALITY OF A STATUTE ON SUCH A GROUND."  FLEMMING V.
NESTOR, 363 U.S. 603, 617.  NO SUCH PROOF IS OFFERED HERE.  THE ACT ON
ITS FACE GIVES NO INDICATION THAT THE REGISTRATION PROVISIONS WERE NOT
INTENDED TO BE COMPLIED WITH.  NONE OF THE CONSEQUENCES WHICH ATTACH TO
REGISTRATION, WHATEVER MAY BE THEIR VALIDITY WHEN WEIGHED SEPARATELY IN
THE CONSTITUTIONAL BALANCE, IS SO DEVOID OF RATIONAL RELATION TO THE
PURPOSES OF THE ACT AS EXPRESSED IN ITS SECOND SECTION THAT IT APPEARS
A MERE PRESSURING DEVICE MEANT TO CATCH AN ORGANIZATION BETWEEN TWO
FIRES.  SECTION 2 RECITES THAT THE WORLD COMMUNIST MOVEMENT, WHOSE
PURPOSE IS TO EMPLOY DECEIT, SECRECY, INFILTRATION, AND SABOTAGE AS
MEANS TO ESTABLISH A COMMUNIST TOTALITARIAN DICTATORSHIP, ESTABLISHES
AND UTILIZES ACTION ORGANIZATIONS.  THE ACT REQUIRES SUCH ORGANIZATIONS
TO REGISTER AND TO LABEL THEIR COMMUNICATIONS, AND PROHIBITS THEIR
MEMBERS FROM GOVERNMENT, DEFENSE-FACILITY AND CERTAIN LABOR
ORGANIZATION EMPLOYMENT.  SECTION 2 SETS FORTH THAT COMMUNIST-ACTION
ORGANIZATIONS ARE SECTIONS OF A WORLD-WIDE COMMUNIST MOVEMENT AND THAT
INTERNATIONAL TRAVEL OF ITS MEMBERS AND AGENTS FACILITATES THE PURPOSES
OF THE MOVEMENT.  THE ACT RESTRICTS THE INGRESS AND ACCESS TO UNITED
STATES CITIZENSHIP OF ALIEN MEMBERS OF COMMUNIST-ACTION ORGANIZATIONS
AND DEPRIVES ALL MEMBERS OF THE USE OF UNITED STATES PASSPORTS. 
OVERTHROW THE GOVERNMENT OF THE UNITED STATES BY ANY AVAILABLE,
NECESSARY MEANS.  THE ACT FORBIDS GOVERNMENT AND DEFENSE-FACILITY
EMPLOYEES TO SUPPORT SUCH ORGANIZATIONS, AND WITHDRAWS FROM THE
ORGANIZATIONS AND THEIR CONTRIBUTORS CERTAIN TAX EXEMPTIONS.  NONE OF
THIS IS SO LACKING IN CONSONANCE AS TO SUGGEST A CLANDESTINE PURPOSE
BEHIND THE REGISTRATION PROVISIONS.  NOR DOES THE LEGISLATIVE HISTORY
CONTAIN ANY SUCH SUGGESTION.  RATHER, THE COMMITTEE REPORTS ON THE
BILLS FROM WHICH THE ACT DERIVED EXPRESS AN OBJECT "TO REQUIRE THE
COMMUNIST MOVEMENT IN THE UNITED STATES TO OPERATE IN THE OPEN RATHER
THAN UNDERGROUND," AND "TO EXPOSE THE COMMUNIST MOVEMENT AND PROTECT
THE PUBLIC AGAINST INNOCENT AND UNWITTING COLLABORATION WITH IT." 
(FN29)    IT IS TRUE, AS THE PARTY ASSERTS, THAT BILLS HAD BEEN
INTRODUCED IN CONGRESS THAT WOULD HAVE APPLIED TO THE COMMUNIST PARTY
BY NAME, (FN30) AND IT IS NO DOUBT ALSO TRUE THAT THE FORM WHICH THE
SUBVERSIVE ACTIVITIES CONTROL ACT FINALLY TOOK WAS DICTATED IN PART BY
CONSTITUTIONAL SCRUPLES AGAINST OUTLAWING OF THE PARTY BY "LEGISLATIVE
FIAT."  (FN31)  IT IS PROBABLE, TOO, THAT THE LEGISLATORS WHO VOTED FOR
THE ACT IN ITS FINAL FORM EXPECTED THAT THE COMMUNIST PARTY, IF IT
CONTINUED TO ENGAGE IN THE ACTIVITIES WHICH HAD BEEN REPORTED TO
CONGRESS AS CHARACTERIZING ITS PAST CONDUCT, WOULD BE REQUIRED TO
REGISTER UNDER SEC. 7.  (FN32)  FROM THIS THE PARTY WOULD HAVE US
CONCLUDE THAT THE ACT IS ONLY AN INSTRUMENT SERVING TO ABOLISH THE
COMMUNIST PARTY BY INDIRECTION.  BUT SUCH AN ANALYSIS IGNORES OUR DUTY
OF RESPECT FOR THE EXERCISE OF THE LEGISLATIVE POWER OF CONGRESS, AND,
MORE SPECIFICALLY, IGNORES THE CRUCIAL CONSTITUTIONAL SIGNIFICANCE OF
WHAT CONGRESS DID WHEN IT REJECTED THE APPROACH OF OUTLAWING THE PARTY
BY NAME AND ACCEPTED INSTEAD A STATUTORY PROGRAM REGULATING NOT
ENUMERATED ORGANIZATIONS BUT DESIGNATED ACTIVITIES.  WE WOULD BE
INDULGING IN A REVISORY POWER OVER ENACTMENTS AS THEY COME FROM
CONGRESS - A POWER WHICH THE FRAMERS OF THE CONSTITUTION WITHHELD FROM
THIS COURT - IF WE SO INTERPRETED WHAT CONGRESS REFUSED TO DO AND WHAT
IN FACT CONGRESS DID; THAT IS, IF WE TREATED THIS ACT AS MERELY A RUSE
BY CONGRESS TO EVADE CONSTITUTIONAL SAFEGUARDS.  CONGRESS DEEMED IT AN
ATTEMPT TO ACHIEVE ITS LEGISLATIVE PURPOSE CONSISTENTLY WITH
CONSTITUTIONAL SAFEGUARDS.  (FN33)  WHETHER IT HAS DONE SO - THE ISSUE
WHICH IS NOW BEFORE US - IS TO BE DETERMINED BY THE MANNER IN WHICH THE
ENACTMENT WORKS IN ITS PRACTICAL APPLICATION.  "SO LONG AS CONGRESS
ACTS IN PURSUANCE OF ITS CONSTITUTIONAL POWER, THE JUDICIARY LACKS
AUTHORITY TO INTERVENE ON THE BASIS OF THE MOTIVES WHICH SPURRED THE
EXERCISE OF THAT POWER."  BARENBLATT V. UNITED STATES, 360 U.S. 109,
132.  OKLAHOMA EX REL. PHILLIPS V. ATKINSON CO., 313 U.S. 508;
SONZINSKY V. UNITED STATES, 300 U.S. 506; MCCRAY V. UNITED STATES, 195
U.S. 27.  THE TRUE AND SOLE QUESTION BEFORE US IS WHETHER THE EFFECTS
OF THE STATUTE AS IT WAS PASSED AND AS IT OPERATES ARE CONSTITUTIONALLY
PERMISSIBLE. 

THE ACT IS NOT A BILL OF ATTAINDER.  IT ATTACHES NOT TO SPECIFIED
ORGANIZATIONS BUT TO DESCRIBED ACTIVITIES IN WHICH AN ORGANIZATION MAY
OR MAY NOT ENGAGE.  THE SINGLING OUT OF AN INDIVIDUAL FOR LEGISLATIVELY
PRESCRIBED PUNISHMENT CONSTITUTES AN ATTAINDER WHETHER THE INDIVIDUAL
IS CALLED BY NAME OR DESCRIBED IN TERMS OF CONDUCT WHICH, BECAUSE IT IS
PAST CONDUCT, OPERATES ONLY AS A DESIGNATION OF PARTICULAR PERSONS. 
SEE CUMMINGS V. MISSOURI, 4 WALL.  277; EX PARTE GARLAND, 4 WALL. 
333.  THE SUBVERSIVE ACTIVITIES CONTROL ACT IS NOT OF THAT KIND.  IT
REQUIRES THE REGISTRATION ONLY OF ORGANIZATIONS WHICH, AFTER THE DATE
OF THE ACT, ARE FOUND TO BE UNDER THE DIRECTION, DOMINATION, OR CONTROL
OF CERTAIN FOREIGN POWERS AND TO OPERATE PRIMARILY TO ADVANCE CERTAIN
OBJECTIVES.  THIS FINDING MUST BE MADE AFTER FULL ADMINISTRATIVE
HEARING, SUBJECT TO JUDICIAL REVIEW WHICH OPENS THE RECORD FOR THE
REVIEWING COURT'S DETERMINATION WHETHER THE ADMINISTRATIVE FINDINGS AS
TO FACT ARE SUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE.  PRESENT
ACTIVITY CONSTITUTES AN OPERATIVE ELEMENT TO WHICH THE STATUTE ATTACHES
LEGAL CONSEQUENCES, NOT MERELY A POINT OF REFERENCE FOR THE
ASCERTAINMENT OF PARTICULAR PERSONS INELUCTABLY DESIGNATED BY THE
LEGISLATURE. 

THE FACT THAT ACTIVITY ENGAGED IN PRIOR TO THE ENACTMENT OF THE
LEGISLATION MAY BE REGARDED ADMINISTRATIVELY AND JUDICIALLY AS RELEVANT
TO A DETERMINATION THAT AN ORGANIZATION IS PRESENTLY FOREIGN-CONTROLLED
AND PRESENTLY WORKS TO ADVANCE THE OBJECTIVES OF THE WORLD COMMUNIST
MOVEMENT, DOES NOT ALTER THE OPERATIVE STRUCTURE OF THE ACT.  THE
INCIDENTS WHICH IT REACHES ARE NONETHELESS PRESENT INCIDENTS.  THE PAST
IS PERTINENT ONLY AS PROBATIVE OF THESE.  IN THIS PROCEEDING THE BOARD
HAS FOUND, AND THE COURT OF APPEALS HAS SUSTAINED ITS CONCLUSION, THAT
THE COMMUNIST PARTY, BY VIRTUE OF THE ACTIVITIES IN WHICH IT NOW
ENGAGES, COMES WITHIN THE TERMS OF THE ACT.  IF THE PARTY SHOULD AT ANY
TIME CHOOSE TO ABANDON THESE ACTIVITIES, AFTER IT IS ONCE REGISTERED
PURSUANT TO SEC. 7, THE ACT PROVIDES ADEQUATE MEANS OF RELIEF.  AS
OFTEN AS ONCE A YEAR IT MAY APPLY TO THE ATTORNEY GENERAL FOR
CANCELLATION OF REGISTRATION, AND, IN THE EVENT OF HIS REFUSAL TO
REMOVE IT FROM THE REGISTER AND TO RELIEVE IT FROM THE DUTY OF FILING
ANNUAL STATEMENTS, IT MAY PETITION THE BOARD FOR REDETERMINATION OF ITS
AMENABILITY TO THE REGISTRATION REQUIREMENTS OF THE ACT, PURSUANT TO A
HEARING WHICH, AGAIN, IS SUBJECT TO JUDICIAL REVIEW.  SECS. 13(B), (I),
(J), 14(A).  FAR FROM ATTACHING TO THE PAST AND INERADICABLE ACTIONS OF
AN ORGANIZATION, THE APPLICATION OF THE REGISTRATION SECTION IS MADE TO
TURN UPON CONTINUINGLY CONTEMPORANEOUS FACT; ITS OBLIGATIONS ARISE ONLY
BECAUSE, AND ENDURE ONLY SO LONG AS, AN ORGANIZATION PRESENTLY CONDUCTS
OPERATIONS OF A DESCRIBED CHARACTER. 

NOR IS THE STATUTE MADE AN ACT OF "OUTLAWRY" OR OF ATTAINDER BY THE
FACT THAT THE CONDUCT WHICH IT REGULATES IS DESCRIBED WITH SUCH
PARTICULARITY THAT, IN PROBABILITY, FEW ORGANIZATIONS WILL COME WITHIN
THE STATUTORY TERMS.  LEGISLATURES MAY ACT TO CURB BEHAVIOR WHICH THEY
REGARD AS HARMFUL TO THE PUBLIC WELFARE, WHETHER THAT CONDUCT IS FOUND
TO BE ENGAGED IN BY MANY PERSONS OR BY ONE.  SO LONG AS THE INCIDENCE
OF LEGISLATION IS SUCH THAT THE PERSONS WHO ENGAGE IN THE REGULATED
CONDUCT, BE THEY MANY OR FEW, CAN ESCAPE REGULATION MERELY BY ALTERING
THE COURSE OF THEIR OWN PRESENT ACTIVITIES, THERE CAN BE NO COMPLAINT
OF AN ATTAINDER.  IT WOULD BE INGENUOUS TO REFUSE TO RECOGNIZE THAT THE
SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 WAS DESIGNED TO REACH THE
COMMUNIST PARTY'S OPERATIONS AS THEN REPORTED TO CONGRESS - OPERATIONS
IN WHICH, THE BOARD HAS FOUND, THE PARTY PERSISTS.  BUT TO BASE A
DETERMINATION OF CONSTITUTIONALITY ON THIS DESIGN WOULD BE TO CONFUSE
THE OCCASION OF LEGISLATION WITH ITS OPERATIVE EFFECT AND CONSEQUENTLY
TO MISTAKE DECISIVE CONSTITUTIONAL DETERMINANTS.  NO DOUBT, THE
ACTIVITY WHOSE REGULATION THE ACT SEEKS TO ACHIEVE IS ACTIVITY
HISTORICALLY ASSOCIATED WITH THE COMMUNIST PARTY.  FROM ITS LEGISLATIVE
STUDY OF THE COMMUNIST PARTY, CONGRESS CONCLUDED THAT THAT KIND OF
ACTIVITY WAS POTENTIALLY DANGEROUS TO THE NATIONAL INTEREST AND THAT IT
MUST BE SUBJECTED TO CONTROL.  BUT WHATEVER THE SOURCE FROM WHICH THE
LEGISLATIVE EXPERIENCE AND INSTRUCTION DERIVED, THE ACT APPLIES TO A
CLASS OF ACTIVITY ONLY, NOT TO THE COMMUNIST PARTY AS SUCH.  NOTHING IN
THIS OFFENDS THE CONSTITUTIONAL PROHIBITION OF ATTAINDER. 

B. THE FREEDOMS OF EXPRESSION AND ASSOCIATION PROTECTED BY THE FIRST
AMENDMENT.  THE COMMUNIST PARTY WOULD HAVE US HOLD THAT THE FIRST
AMENDMENT PROHIBITS CONGRESS FROM REQUIRING THE REGISTRATION AND FILING
OF INFORMATION, INCLUDING MEMBERSHIP LISTS, BY ORGANIZATIONS
SUBSTANTIALLY DOMINATED OR CONTROLLED BY THE FOREIGN POWERS CONTROLLING
THE WORLD COMMUNIST MOVEMENT AND WHICH OPERATE PRIMARILY TO ADVANCE THE
OBJECTIVES OF THAT MOVEMENT:  THE OVERTHROW OF EXISTING GOVERNMENT BY
ANY MEANS NECESSARY AND THE ESTABLISHMENT IN ITS PLACE OF A COMMUNIST
TOTALITARIAN DICTATORSHIP (SECS. 3(3), 2(1) AND (6)).  WE CANNOT FIND
SUCH A PROHIBITION IN THE FIRST AMENDMENT.  SO TO FIND WOULD MAKE A
TRAVESTY OF THAT AMENDMENT AND THE GREAT ENDS FOR THE WELL-BEING OF OUR
DEMOCRACY THAT IT SERVES. 

NO DOUBT, A GOVERNMENTAL REGULATION WHICH REQUIRES REGISTRATION AS A
CONDITION UPON THE EXERCISE OF SPEECH MAY IN SOME CIRCUMSTANCES AFFRONT
THE CONSTITUTIONAL GUARANTEE OF FREE EXPRESSION.  (FN34)  THOMAS V.
COLLINS, 323 U.S. 516.  IN THAT CASE, THE COURT HELD THAT A STATE COULD
NOT CONSTITUTIONALLY PUNISH FOR CONTEMPT A PUBLIC SPEAKER WHO HAD
ADDRESSED A LABOR-ORGANIZATION MEETING IN VIOLATION OF A RESTRAINING
ORDER PROHIBITING HIM FROM SOLICITING MEMBERSHIPS IN A LABOR UNION
WITHOUT HAVING FIRST REGISTERED AS A PAID LABOR ORGANIZER AND SECURED
AN ORGANIZER'S CARD.  THE DECISION WAS A NARROW ONE, STRIKING DOWN THE
REGISTRATION REQUIREMENT ONLY AS APPLIED TO THE PARTICULAR
CIRCUMSTANCES OF THE CASE, ID., AT 541-542 - THAT IS, TO AN INDIVIDUAL
WHO, AS THE COURT SEVERAL TIMES INSISTED, HAD COME INTO THE STATE "FOR
ONE PURPOSE AND ONE ONLY - TO MAKE THE SPEECH IN QUESTION."  ID., AT
533; SEE ALSO ID., AT 521, 526.  (FN35)  SINCE THIS SPEECH WAS THE SOLE
INCIDENT OF THOMAS' CONDUCT UPON WHICH THE STATE RELIED IN ASSERTING
THAT HE WAS AN "ORGANIZER" AND THUS REQUIRED TO REGISTER AS SUCH, THE
COURT REGARDED THE STATUTE, IN THIS APPLICATION, AS BASING THE
OBLIGATION TO REGISTER UPON SPEECH ACTIVITY ALONE.  (FN36)  "SO LONG AS
NO MORE IS INVOLVED THAN EXERCISE OF THE RIGHTS OF FREE SPEECH AND FREE
ASSEMBLY," THE COURT SAID, "IT IS IMMUNE TO SUCH A RESTRICTION."  ID.,
AT 540.  THE PRESENT STATUTE DOES NOT, OF COURSE, ATTACH THE
REGISTRATION REQUIREMENT TO THE INCIDENT OF SPEECH, BUT TO THE
INCIDENTS OF FOREIGN DOMINATION AND OF OPERATION TO ADVANCE THE
OBJECTIVES OF THE WORLD COMMUNIST MOVEMENT - OPERATIONS WHICH, THE
BOARD HAS FOUND HERE, INCLUDES EXTENSIVE, LONG-CONTINUING
ORGANIZATIONAL, AS WELL AS "SPEECH," ACTIVITY.  THUS THE THOMAS CASE IS
APPLICABLE HERE ONLY INSOFAR AS IT ESTABLISHES THAT SUBJECTION TO
REGISTRATION REQUIREMENTS MAY BE A SUFFICIENT RESTRAINT UPON THE
EXERCISE OF LIBERTIES PROTECTED BY THE FIRST AMENDMENT TO MERIT THAT IT
BE WEIGHED IN THE CONSTITUTIONAL BALANCE. 

SIMILARLY, WE AGREE THAT COMPULSORY DISCLOSURE OF THE NAMES OF AN
ORGANIZATION'S MEMBERS MAY IN CERTAIN INSTANCES INFRINGE
CONSTITUTIONALLY PROTECTED RIGHTS OF ASSOCIATION.  N.A.A.C.P.  V.
ALABAMA, 357 U.S. 449; BATES V. LITTLE ROCK, 361 U.S. 516; SHELTON V.
TUCKER, 364 U.S. 479.  BUT TO SAY THIS MUCH IS ONLY TO RECOGNIZE ONE OF
THE POINTS OF REFERENCE FROM WHICH ANALYSIS MUST BEGIN.  TO STATE THAT
INDIVIDUAL LIBERTIES MAY BE AFFECTED IS TO ESTABLISH THE CONDITION FOR,
NOT TO ARRIVE AT THE CONCLUSION OF, CONSTITUTIONAL DECISION.  AGAINST
THE IMPEDIMENTS WHICH PARTICULAR GOVERNMENTAL REGULATION CAUSES TO
ENTIRE FREEDOM OF INDIVIDUAL ACTION, THERE MUST BE WEIGHED THE VALUE TO
THE PUBLIC OF THE ENDS WHICH THE REGULATION MAY ACHIEVE.  SCHENCK V.
UNITED STATES, 249 U.S. 47; DENNIS V. UNITED STATES, 341 U.S. 494;
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382. 

IN THE N.A.A.C.P. AND BATES CASES, THIS COURT EXAMINED THE
CIRCUMSTANCES UNDER WHICH DISCLOSURE WAS DEMANDED, AND CONCLUDED THAT
"WHATEVER INTEREST THE STATE MAY HAVE IN OBTAINING NAMES OF ORDINARY
MEMBERS HAS NOT BEEN SHOWN TO BE SUFFICIENT TO OVERCOME THE  ...
CONSTITUTIONAL OBJECTIONS TO THE PRODUCTION ORDER."  N.A.A.C.P. V.
ALABAMA, 357 U.S., AT 465.  IN THE N.A.A.C.P.  CASE, THE ATTORNEY
GENERAL OF ALABAMA HAD BROUGHT AN EQUITY SUIT TO ENJOIN THE ASSOCIATION
FROM CONDUCTING FURTHER ACTIVITIES WITHIN, AND TO OUST IT FROM, THE
STATE ON THE GROUNDS OF ITS NON-COMPLIANCE WITH ALABAMA'S FOREIGN
CORPORATION REGISTRATION STATUTE.  THE ATTORNEY GENERAL SOUGHT, AND THE
STATE COURT ORDERED, PRODUCTION OF LISTS OF THE ASSOCIATION'S RANK-AND
FILE MEMBERS AS PERTINENT TO THE ISSUES WHETHER THE N.A.A.C.P. WAS
CONDUCTING INTRASTATE BUSINESS IN VIOLATION OF THE STATUTE, AND WHETHER
THE EXTENT OF THAT BUSINESS JUSTIFIED ITS PERMANENT OUSTER FROM THE
STATE.  NOTING THAT THE ASSOCIATION HAD ADMITTED ITS PRESENCE AND
CONDUCT OF ACTIVITIES IN ALABAMA DURING ALMOST FORTY YEARS AND THAT IT
HAD OFFERED TO COMPLY IN ALL RESPECTS WITH THE QUALIFICATION STATUTE,
WE SAID THAT "WE ARE UNABLE TO PERCEIVE THAT THE DISCLOSURE OF THE
NAMES OF N.A.A.C.P.'S  ...  RANK-AND-FILE MEMBERS HAS A SUBSTANTIAL
BEARING" UPON ANY ISSUE PRESENTED TO THE ALABAMA COURTS.  ID., AT 464. 
BATES V. LITTLE ROCK, SUPRA, INVOLVED THE CONVICTION OF CUSTODIANS OF
RECORDS OF BRANCHES OF THE N.A.A.C.P. FOR FAILURE TO COMPLY WITH
PROVISIONS OF LOCAL REGULATIONS WHICH REQUIRED ORGANIZATIONS OPERATING
WITHIN THE MUNICIPALITY TO FILE WITH A MUNICIPAL OFFICIAL, INTER ALIA,
FINANCIAL STATEMENTS SHOWING THE NAMES OF ALL CONTRIBUTORS TO THE
ORGANIZATIONS.  THESE REGULATIONS WERE AMENDMENTS TO ORDINANCES LEVYING
LICENSE TAXES ON PERSONS ENGAGING IN BUSINESSES, OCCUPATIONS OR
PROFESSIONS WITHIN MUNICIPAL LIMITS.  FINDING THAT THE OCCUPATION TAXES
WERE BASED ON THE NATURE OF THE ACTIVITY OR ENTERPRISE CONDUCTED, NOT
UPON EARNINGS OR INCOME, AND, MOREOVER, THAT THERE HAD BEEN NO SHOWING
THAT THE N.A.A.C.P. BRANCHES WERE ENGAGED IN ACTIVITY TAXABLE UNDER THE
ORDINANCES, OR HAD EVER BEEN REGARDED BY TAX AUTHORITIES AS SUBJECT TO
TAXATION UNDER THE ORDINANCES, THE COURT CONCLUDED THAT:  "IN THIS
RECORD WE CAN FIND NO RELEVANT CORRELATION BETWEEN THE POWER OF THE
MUNICIPALITIES TO IMPOSE OCCUPATIONAL LICENSE TAXES AND THE COMPULSORY
DISCLOSURE AND PUBLICATION OF THE MEMBERSHIP LISTS OF THE LOCAL
BRANCHES OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE."  361 U.S., AT 525.  THUS, THESE CASES HOLD THAT WHERE THE
REQUIRED MAKING PUBLIC OF AN ORGANIZATION'S MEMBERSHIP LISTS BEARS NO
RATIONAL RELATION TO THE INTEREST WHICH IS ASSERTED BY THE STATE TO
JUSTIFY DISCLOSURE, AND WHERE BECAUSE OF COMMUNITY TEMPER PUBLICATION
MIGHT PREJUDICE MEMBERS WHOSE NAMES WERE REVEALED, DISCLOSURE CANNOT
CONSTITUTIONALLY BE COMPELLED. 

SHELTON V. TUCKER, SUPRA, DID NOT INVOLVE LEGISLATION WHICH, AS A
MEANS OF REGULATING AN APPROPRIATELY DEFINED CLASS OF ORGANIZATIONS
WHOSE ACTIVITIES MENACED THE PUBLIC WELFARE, REQUIRED THOSE
ORGANIZATIONS TO REVEAL THEIR MEMBERS.  IT INVOLVED AN ARKANSAS STATUTE
WHICH, CONVERSELY, AS AN INCIDENT OF THE STATE'S ATTEMPT TO CONTROL THE
ACTIVITIES OF A CLASS OF INDIVIDUALS - THE TEACHERS IN ITS PUBLIC
SCHOOLS AND PUBLICLY SUPPORTED INSTITUTIONS OF HIGHER LEARNING -
REQUIRED THE INDIVIDUALS TO DISCLOSE THE ASSOCIATIONS TO WHICH THEY
BELONGED.  THE STATUTE'S PURPORTED JUSTIFICATION LAY IN ITS FURTHERANCE
OF THE STATE'S EFFECTIVE SELECTION OF TEACHING PERSONNEL; TO SUBSERVE
THIS END, IT ATTEMPTED TO "ASK EVERY ONE OF ITS TEACHERS TO DISCLOSE
EVERY SINGLE ORGANIZATION WITH WHICH HE HAS BEEN ASSOCIATED OVER A FIVE
YEAR PERIOD."  364 U.S., AT 487-488.  THE COURT, FINDING THAT "MANY
SUCH RELATIONSHIPS COULD HAVE NO POSSIBLE BEARING UPON THE TEACHER'S
OCCUPATIONAL COMPETENCE OR FITNESS," ID., AT 488, AND HENCE THAT "THE
STATUTE'S COMPREHENSIVE INTERFERENCE WITH ASSOCIATIONAL FREEDOM GOES
FAR BEYOND WHAT MIGHT BE JUSTIFIED IN THE EXERCISE OF THE STATE'S
LEGITIMATE INQUIRY INTO THE FITNESS AND COMPETENCY OF ITS TEACHERS,"
ID., AT 490, STRUCK THE LEGISLATION DOWN.  AGAIN, THE RATIO DECIDENDI
OF THE DECISION WAS THE ABSENCE OF SUBSTANTIAL CONNECTION BETWEEN THE
BREADTH OF DISCLOSURE DEMANDED AND THE PURPOSE WHICH DISCLOSURE WAS
ASSERTED TO SERVE. 

THE PRESENT CASE DIFFERS FROM THOMAS V. COLLINS AND FROM N.A.A.C.P.,
BATES, AND SHELTON IN THE MAGNITUDE OF THE PUBLIC INTERESTS WHICH THE
REGISTRATION AND DISCLOSURE PROVISIONS ARE DESIGNED TO PROTECT AND IN
THE PERTINENCE WHICH REGISTRATION AND DISCLOSURE BEAR TO THE PROTECTION
OF THOSE INTERESTS.  CONGRESS ITSELF HAS EXPRESSED IN SEC. 2 OF THE ACT
BOTH WHAT THOSE INTERESTS ARE AND WHAT, IN ITS VIEW, THREATENS THEM. 
ON THE BASIS OF ITS DETAILED INVESTIGATIONS CONGRESS HAS FOUND THAT
THERE EXISTS A WORLD COMMUNIST MOVEMENT, FOREIGN-CONTROLLED, WHOSE
PURPOSE IT IS BY WHATEVER MEANS NECESSARY TO ESTABLISH COMMUNIST
TOTALITARIAN DICTATORSHIP IN THE COUNTRIES THROUGHOUT THE WORLD, AND
WHICH HAS ALREADY SUCCEEDED IN SUPPLANTING GOVERNMENTS IN OTHER
COUNTRIES.  CONGRESS HAS FOUND THAT IN FURTHERING THESE PURPOSES, THE
FOREIGN GOVERNMENT CONTROLLING THE WORLD COMMUNIST MOVEMENT ESTABLISHES
IN VARIOUS COUNTRIES ACTION ORGANIZATIONS WHICH, DOMINATED FROM ABROAD,
ENDEAVOR TO BRING ABOUT THE OVERTHROW OF EXISTING GOVERNMENTS, BY FORCE
IF NEED BE, AND TO ESTABLISH TOTALITARIAN DICTATORSHIPS SUBSERVIENT TO
THAT FOREIGN GOVERNMENT.  AND CONGRESS HAS FOUND THAT THESE ACTION
ORGANIZATIONS EMPLOY METHODS OF INFILTRATION AND SECRETIVE AND COERCIVE
TACTICS; THAT BY OPERATING IN CONCEALMENT AND THROUGH COMMUNIST-FRONT
ORGANIZATIONS THEY ARE ABLE TO OBTAIN THE SUPPORT OF PERSONS WHO WOULD
NOT EXTEND SUCH SUPPORT KNOWING OF THEIR TRUE NATURE; THAT A COMMUNIST
NETWORK EXISTS IN THE UNITED STATES; AND THAT THE AGENTS OF COMMUNISM
HAVE DEVISED METHODS OF SABOTAGE AND ESPIONAGE CARRIED OUT IN
SUCCESSFUL EVASION OF EXISTING LAW.  THE PURPOSE OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT IS SAID TO BE TO PREVENT THE WORLD-WIDE
COMMUNIST CONSPIRACY FROM ACCOMPLISHING ITS PURPOSE IN THIS COUNTRY. 

IT IS NOT FOR THE COURTS TO RE-EXAMINE THE VALIDITY OF THESE
LEGISLATIVE FINDINGS AND REJECT THEM.   SEE HARISIADES V. SHAUGHNESSY,
342 U.S. 580, 590.  THEY ARE THE PRODUCT OF EXTENSIVE INVESTIGATION BY
COMMITTEES OF CONGRESS OVER MORE THAN A DECADE AND A HALF.  (FN37)  CF.
NEBBIA V. NEW YORK, 291 U.S. 502, 516, 530.  WE CERTAINLY CANNOT
DISMISS THEM AS UNFOUNDED OR IRRATIONAL IMAGININGS.  SEE GALVAN V.
PRESS, 347 U.S. 522, 529; AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382, 388-389.  AND IF WE ACCEPT THEM, AS WE MUST, AS A NOT
UNENTERTAINABLE APPRAISAL BY CONGRESS OF THE THREAT WHICH COMMUNIST
ORGANIZATIONS POSE NOT ONLY TO EXISTING GOVERNMENT IN THE UNITED
STATES, BUT TO THE UNITED STATES AS A SOVEREIGN, INDEPENDENT NATION -
IF WE ACCEPT AS NOT WHOLLY UNSUPPORTABLE THE CONCLUSION THAT THOSE
ORGANIZATIONS "ARE NOT FREE AND INDEPENDENT ORGANIZATIONS, BUT ARE
DIRECTED, AND SUBJECT TO THE DISCIPLINE OF THE COMMUNIST DICTATORSHIP
OF A  ...  FOREIGN COUNTRY,"  SEC. 2(5) - WE MUST RECOGNIZE THAT THE
POWER OF CONGRESS TO REGULATE COMMUNIST ORGANIZATIONS OF THIS NATURE IS
EXTENSIVE.  "SECURITY AGAINST FOREIGN DANGER IS ONE OF THE PRIMITIVE
OBJECTS OF CIVIL SOCIETY," JAMES MADISON WROTE IN THE FEDERALIST (NO.
41).  "IT IS AN AVOWED AND ESSENTIAL OBJECT OF THE AMERICAN UNION.  THE
POWERS REQUISITE FOR ATTAINING IT MUST BE EFFECTUALLY CONFIDED TO THE
FEDERAL COUNCILS."  THE FEDERALIST (WRIGHT ED. 1961) 295.  SEE ALSO THE
FEDERALIST (NOS. 2-5), ID., AT 93 ET SEQ. MEANS FOR EFFECTIVE
RESISTANCE AGAINST FOREIGN INCURSION - WHETHER IN THE FORM OF
ORGANIZATIONS WHICH FUNCTION, IN SOME TECHNICAL SENSE, AS "AGENTS" OF A
FOREIGN POWER, (FN38) OR IN THE FORM OF ORGANIZATIONS WHICH, BY
COMPLETE DEDICATION AND OBEDIENCE TO FOREIGN DIRECTIVES, MAKE
THEMSELVES THE INSTRUMENTS OF A FOREIGN POWER - MAY NOT BE DENIED TO
THE NATIONAL LEGISLATURE.  "TO PRESERVE ITS INDEPENDENCE, AND GIVE
SECURITY AGAINST FOREIGN AGGRESSION AND ENCROACHMENT, IS THE HIGHEST
DUTY OF EVERY NATION, AND TO ATTAIN THESE ENDS NEARLY ALL OTHER
CONSIDERATIONS ARE TO BE SUBORDINATED.  IT MATTERS NOT IN WHAT FORM
SUCH AGGRESSION AND ENCROACHMENT COME  ...  ."  THE CHINESE EXCLUSION
CASE, 130 U.S. 581, 606.  SEE ALSO PEREZ V. BROWNELL, 356 U.S. 44; EX
PARTE QUIRIN, 317 U.S. 1; HINES V. DAVIDOWITZ, 312 U.S. 52; UNITED
STATES V. CURTISS-WRIGHT EXPORT CORP., 299 U.S. 304, 315-322; MACKENZIE
V. HARE, 239 U.S. 299, 311; FONG YUE TING V. UNITED STATES, 149 U.S.
698; MR. JUSTICE BRADLEY, CONCURRING IN THE LEGAL TENDER CASES, 12
WALL.  457, 554, 556. 

OF COURSE, CONGRESSIONAL POWER IN THIS SPHERE, AS IN ALL SPHERES, IS
LIMITED BY THE FIRST AMENDMENT.  INDIVIDUAL LIBERTIES FUNDAMENTAL TO
AMERICAN INSTITUTIONS ARE NOT TO BE DESTROYED UNDER PRETEXT OF
PRESERVING THOSE INSTITUTIONS, EVEN FROM THE GRAVEST EXTERNAL DANGERS. 
BUT WHERE THE PROBLEMS OF ACCOMMODATING THE EXIGENCIES OF SELF
PRESERVATION AND THE VALUES OF LIBERTY ARE AS COMPLEX AND INTRICATE AS
THEY ARE IN THE SITUATION DESCRIBED IN THE FINDINGS OF SEC. 2 OF THE
SUBVERSIVE ACTIVITIES CONTROL ACT - WHEN EXISTING GOVERNMENT IS MENACED
BY A WORLD-WIDE INTEGRATED MOVEMENT WHICH EMPLOYS EVERY COMBINATION OF
POSSIBLE MEANS, PEACEFUL AND VIOLENT, DOMESTIC AND FOREIGN, OVERT AND
CLANDESTINE, TO DESTROY THE GOVERNMENT ITSELF - THE LEGISLATIVE
JUDGMENT AS TO HOW THAT THREAT MAY BEST BE MET CONSISTENTLY WITH THE
SAFEGUARDING OF PERSONAL FREEDOM IS NOT TO BE SET ASIDE MERELY BECAUSE
THE JUDGMENT OF JUDGES WOULD, IN THE FIRST INSTANCE, HAVE CHOSEN OTHER
METHODS.  ESPECIALLY WHERE CONGRESS, IN SEEKING TO RECONCILE COMPETING
AND URGENTLY DEMANDING VALUES WITHIN OUR SOCIAL INSTITUTIONS,
LEGISLATES NOT TO PROHIBIT INDIVIDUALS FROM ORGANIZING FOR THE
EFFECTUATION OF ENDS FOUND TO BE MENACING TO THE VERY EXISTENCE OF
THOSE INSTITUTIONS, BUT ONLY TO PRESCRIBE THE CONDITIONS UNDER WHICH
SUCH ORGANIZATION IS PERMITTED, THE LEGISLATIVE DETERMINATION MUST BE
RESPECTED.  UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75; AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, SUPRA.

IN A NUMBER OF SITUATIONS IN WHICH SECRECY OR THE CONCEALMENT OF
ASSOCIATIONS HAS BEEN REGARDED AS A THREAT TO PUBLIC SAFETY AND TO THE
EFFECTIVE, FREE FUNCTIONING OF OUR NATIONAL INSTITUTIONS CONGRESS HAS
MET THE THREAT BY REQUIRING REGISTRATION OR DISCLOSURE.  (FN39)  THE
FEDERAL CORRUPT PRACTICES ACT, ENACTED IN 1925, 43 STAT. 1070, 2 U.S.C.
SECS. 241-245, REQUIRES ALL POLITICAL COMMITTEES (ORGANIZATIONS
ACCEPTING CONTRIBUTIONS OR MAKING EXPENDITURES TO INFLUENCE THE
ELECTION OF CANDIDATES FOR DESIGNATED NATIONAL OFFICES IN TWO OR MORE
STATES, OR BRANCHES OF NATIONAL COMMITTEES) TO HAVE A CHAIRMAN AND A
TREASURER, AND MAKES IT THE DUTY OF THE TREASURER TO KEEP DETAILED
FINANCIAL ACCOUNTS AND TO FILE WITH THE CLERK OF THE HOUSE OF
REPRESENTATIVES PERIODIC STATEMENTS CONTAINING, INTER ALIA, THE NAMES
AND ADDRESSES OF ALL PERSONS CONTRIBUTING MORE THAN $100 TO THE
COMMITTEE DURING ANY YEAR.  BURROUGHS V. UNITED STATES, 290 U.S. 534,
SUSTAINED THAT STATUTE AGAINST THE CLAIM THAT CONGRESS LACKED
CONSTITUTIONAL POWER TO REGULATE SUCH POLITICAL ORGANIZATIONS; THE
COURT FOUND AMPLE AUTHORITY IN CONGRESSIONAL POWER "TO PRESERVE THE
DEPARTMENTS AND INSTITUTIONS OF THE GENERAL GOVERNMENT FROM IMPAIRMENT
OR DESTRUCTION, WHETHER THREATENED BY FORCE OR BY CORRUPTION."  ID., AT
545.  THE FEDERAL REGULATION OF LOBBYING ACT, 60 STAT. 839, 2 U.S.C.
SECS. 261-270, APPLIES TO ANY PERSON WHO SOLICITS OR RECEIVES MONEY OR
ANYTHING OF VALUE TO BE USED PRINCIPALLY, OR IF THE PERSON'S PRINCIPAL
PURPOSE IS, TO INFLUENCE THE PASSAGE OR DEFEAT OF LEGISLATION BY
CONGRESS.  IT REQUIRES ANY PERSON RECEIVING ANY CONTRIBUTIONS OR
EXPENDING ANY MONEY FOR THE PURPOSES OF INFLUENCING THE PASSAGE OR
DEFEAT OF LEGISLATION TO FILE WITH THE CLERK OF THE HOUSE QUARTERLY
STATEMENTS WHICH SET OUT THE NAME AND ADDRESS OF EACH PERSON WHO HAS
MADE A CONTRIBUTION OF $500 OR MORE NOT MENTIONED IN THE PRECEDING
REPORT.  IT ALSO REQUIRES THAT ANY PERSON WHO ENGAGES HIMSELF FOR PAY
FOR THE PURPOSE OF ATTEMPTING TO INFLUENCE THE PASSAGE OR DEFEAT OF
LEGISLATION, BEFORE DOING ANYTHING IN FURTHERANCE OF THAT OBJECTIVE,
REGISTER WITH THE CLERK OF THE HOUSE AND THE SECRETARY OF THE SENATE,
AND STATE IN WRITING, INTER ALIA, HIS NAME AND ADDRESS AND THE NAME AND
ADDRESS OF THE PERSON BY WHOM HE IS EMPLOYED, AND IN WHOSE INTEREST HE
WORKS.  THESE PAID LOBBYISTS MUST FILE QUARTERLY REPORTS OF ALL MONEY
RECEIVED AND EXPENDED IN CARRYING ON THEIR WORK, TO WHOM PAID, FOR WHAT
PURPOSES, THE NAMES OF PUBLICATIONS IN WHICH THEY HAVE CAUSED ANY
ARTICLES TO BE PUBLISHED, AND THE PROPOSED LEGISLATION THEY ARE
EMPLOYED TO SUPPORT OR OPPOSE; THIS INFORMATION IS TO BE PRINTED IN THE
CONGRESSIONAL RECORD.  IN UNITED STATES V. HARRISS, 347 U.S. 612, WE
HELD THAT THE FIRST AMENDMENT DID NOT PROHIBIT THE PROSECUTION OF
CRIMINAL INFORMATIONS CHARGING VIOLATION OF THE REGISTRATION AND
REPORTING PROVISIONS OF THE ACT.  WE SAID: 

"PRESENT-DAY LEGISLATIVE COMPLEXITIES ARE SUCH THAT INDIVIDUAL
MEMBERS OF CONGRESS CANNOT BE EXPECTED TO EXPLORE THE MYRIAD PRESSURES
TO WHICH THEY ARE REGULARLY SUBJECTED.  YET FULL REALIZATION OF THE
AMERICAN IDEAL OF GOVERNMENT BY ELECTED REPRESENTATIVES DEPENDS TO NO
SMALL EXTENT ON THEIR ABILITY TO PROPERLY EVALUATE SUCH PRESSURES. 
OTHERWISE THE VOICE OF THE PEOPLE MAY ALL TOO EASILY BE DROWNED OUT BY
THE VOICE OF SPECIAL INTEREST GROUPS SEEKING FAVORED TREATMENT WHILE
MASQUERADING AS PROPONENTS OF THE PUBLIC WEAL.  THIS IS THE EVIL WHICH
THE LOBBYING ACT WAS DESIGNED TO HELP PREVENT. 

"TOWARD THAT END, CONGRESS HAS NOT SOUGHT TO PROHIBIT THESE
PRESSURES.  IT HAS MERELY PROVIDED FOR A MODICUM OF INFORMATION FROM
THOSE WHO FOR HIRE ATTEMPT TO INFLUENCE LEGISLATION OR WHO COLLECT OR
SPEND FUNDS FOR THAT PURPOSE.  IT WANTS ONLY TO KNOW WHO IS BEING
HIRED, WHO IS PUTTING UP THE MONEY, AND HOW MUCH  ...  ."  ID., AT
625. 

THE FOREIGN AGENTS REGISTRATION ACT, FIRST ENACTED IN 1938, 52 STAT.
631, AND SINCE SEVERAL TIMES AMENDED, PROVIDES, AS NOW SET FORTH IN 22
U.S.C. SECS. 611-621, THAT AGENTS OF FOREIGN PRINCIPALS MUST REGISTER
WITH THE ATTORNEY GENERAL AND FILE PERIODIC REGISTRATION STATEMENTS
(WHICH ARE TO BE HELD BY THE ATTORNEY GENERAL OPEN TO PUBLIC
INSPECTION) CONTAINING, AMONG OTHER INFORMATION, THE REGISTRANT'S NAME,
A COMPREHENSIVE STATEMENT OF THE NATURE OF THE REGISTRANT'S BUSINESS, A
COMPLETE LIST OF THE REGISTRANT'S EMPLOYEES AND A STATEMENT OF THE
NATURE OF THE WORK OF EACH (UNLESS THIS REQUIREMENT IS WAIVED BY THE
ATTORNEY GENERAL), THE NAME AND ADDRESS OF THE REGISTRANT'S FOREIGN
PRINCIPALS, WITH FURTHER INFORMATION AS TO THE PRINCIPALS' CHARACTER,
OWNERSHIP AND CONTROL, THE NAMES AND ADDRESSES OF ALL PERSONS OTHER
THAN A REGISTRANT'S FOREIGN PRINCIPAL WHO CONTRIBUTE TO THE REGISTRANT
IN CONNECTION WITH SPECIFIED ACTIVITIES OF THE REGISTRANT, AND DETAILED
FINANCIAL ACCOUNTS.  SUCH AGENTS MUST ALSO FILE WITH THE ATTORNEY
GENERAL AND THE LIBRARIAN OF CONGRESS, AND MUST LABEL AS EMANATING FROM
A REGISTERED AGENT OF A FOREIGN PRINCIPAL, AND MARK WITH THE NAME OF
THE AGENT AND THE PRINCIPAL, ANY POLITICAL PROPAGANDA TRANSMITTED IN
THE UNITED STATES MAILS OR THROUGH ANY INSTRUMENTALITY OF INTERSTATE OR
FOREIGN COMMERCE.  IN ADDITION, TITLE 18 U.S.C. SEC. 2386, DERIVED FROM
THE SO-CALLED VOORHIS ACT OF 1940, 54 STAT. 1201, REQUIRES THE
REGISTRATION WITH THE ATTORNEY GENERAL OF ORGANIZATIONS SUBJECT TO
FOREIGN CONTROL WHICH ENGAGE IN POLITICAL OR CIVILIAN MILITARY ACTIVITY
(AS THOSE TERMS ARE DEFINED IN THE SECTION), ORGANIZATIONS WHICH ENGAGE
IN BOTH POLITICAL AND CIVILIAN MILITARY ACTIVITY (AS DEFINED), AND
ORGANIZATIONS WHOSE PURPOSE IS THE OVERTHROW OF GOVERNMENT BY THE USE
OR THREAT OF FORCE OR VIOLENCE OR MILITARY MEASURES.  ORGANIZATIONS
REQUIRED TO REGISTER MUST REPORT, INTER ALIA, THE NAMES AND ADDRESSES
OF THEIR OFFICERS, BRANCH OFFICERS AND CONTRIBUTORS, A DETAILED
DESCRIPTION OF THEIR ACTIVITIES, AND A DETAILED STATEMENT OF ASSETS,
AND MUST FILE COPIES OF PUBLICATIONS WHICH THEY ISSUE OR DISTRIBUTE;
REGISTRATION STATEMENTS MUST BE KEPT UP TO DATE AND ARE TO BE OPEN FOR
PUBLIC EXAMINATION.  COMMITTEE REPORTS PERTINENT TO THE SUBVERSIVE
ACTIVITIES CONTROL ACT OF 1950 STATE THAT THE NECESSITY FOR THE
LEGISLATION DERIVED IN PART FROM THE DIFFICULTY OF ENFORCING THE
FOREIGN AGENTS REGISTRATION AND VOORHIS ACTS AGAINST COMMUNIST
ORGANIZATIONS "DUE IN PART TO THE SKILL AND DECEIT WHICH THE COMMUNISTS
HAVE USED IN CONCEALING THEIR FOREIGN TIES."  (FN40) 

CERTAINLY, AS THE BURROUGHS AND HARRISS CASES ABUNDANTLY RECOGNIZE,
SECRECY OF ASSOCIATIONS AND ORGANIZATIONS, EVEN AMONG GROUPS CONCERNED
EXCLUSIVELY WITH POLITICAL PROCESSES, MAY UNDER SOME CIRCUMSTANCES
CONSTITUTE A DANGER WHICH LEGISLATURES DO NOT LACK CONSTITUTIONAL POWER
TO CURB.  IN NEW YORK EX REL. BRYANT V. ZIMMERMAN, 278 U.S. 63, THIS
COURT HELD THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WAS
NOT OFFENDED BY A STATE STATUTE REQUIRING FILING WITH THE SECRETARY OF
STATE OF THE CONSTITUTION AND BY-LAWS, RULES AND REGULATIONS,
MEMBERSHIP OATH, ROSTER OF MEMBERS AND LIST OF OFFICERS OF EVERY
ASSOCIATION OF TWENTY OR MORE MEMBERS HAVING AS A CONDITION OF
MEMBERSHIP AN OATH.  THE STATUTE MADE IT UNLAWFUL TO BECOME OR REMAIN A
MEMBER OF SUCH AN ASSOCIATION WITH KNOWLEDGE THAT IT HAD FAILED TO
COMPLY WITH THE FILING REQUIREMENT.  EXCEPTIONS FOR LABOR UNIONS AND
BENEVOLENT ORDERS INDICATED THAT THE MEASURE WAS DIRECTED PRIMARILY AT
THE KU KLUX KLAN.  COMPELLING DISCLOSURE OF MEMBERSHIP LISTS AND OTHER
INFORMATION BY ORGANIZATIONS OF THE CHARACTER OF THE KLAN, THE COURT
FOUND, WAS REASONABLE BOTH AS A MEANS FOR PROVIDING THE GOVERNMENT OF
THE STATE WITH KNOWLEDGE OF THE ACTIVITIES OF THOSE ORGANIZATIONS
WITHIN ITS BORDERS, AND BECAUSE "REQUIRING THIS INFORMATION TO BE
SUPPLIED FOR THE PUBLIC FILES WILL OPERATE AS AN EFFECTIVE OR
SUBSTANTIAL DETERRENT FROM THE VIOLATIONS OF PUBLIC AND PRIVATE RIGHT
TO WHICH THE ASSOCIATION MIGHT BE TEMPTED IF SUCH A DISCLOSURE WERE NOT
REQUIRED."  ID., AT 72.  IT WAS THE NATURE OF THE ORGANIZATION
REGULATED, AND HENCE THE DANGER INVOLVED IN ITS COVERT OPERATION, WHICH
JUSTIFIED THE STATUTE AND CAUSED US TO DISTINGUISH THE BRYANT CASE IN
N.A.A.C.P. V. ALABAMA, SUPRA, 357 U.S., AT 465.  (FN41) IN N.A.A.C.P.
AND BATES V. LITTLE ROCK, SUPRA, AS WE HAVE SAID, THERE WAS NO SHOWING
OF ANY DANGER INHERENT IN CONCEALMENT, NO SHOWING THAT THE STATE, IN
SEEKING DISCLOSURE, WAS ATTEMPTING TO COPE WITH ANY PERCEIVED DANGER. 
NOR WAS THIS KIND OF DANGER - ARISING WHEN SECRECY ITSELF IS MADE AN
ACTIVE INSTRUMENT OF PUBLIC HARM - PUT FORTH TO JUSTIFY THE STATUTE
WHICH WAS HELD INVALID IN SHELTON V. TUCKER, SUPRA. 

CONGRESS, WHEN IT ENACTED THE SUBVERSIVE ACTIVITIES CONTROL ACT, DID
ATTEMPT TO COPE WITH PRECISELY SUCH A DANGER.  IN LIGHT OF ITS
LEGISLATIVE FINDINGS, BASED ON VOLUMINOUS EVIDENCE COLLECTED DURING
YEARS OF INVESTIGATION, WE CANNOT SAY THAT THE DANGER IS CHIMERICAL, OR
THAT THE REGISTRATION REQUIREMENT OF SEC. 7 IS AN ILL-ADJUSTED MEANS OF
DEALING WITH IT.  IN SAYING THIS, WE ARE NOT INSENSITIVE TO THE FACT
THAT THE PUBLIC OPPROBRIUM AND OBLOQUY WHICH MAY ATTACH TO AN
INDIVIDUAL LISTED WITH THE ATTORNEY GENERAL AS A MEMBER OF A COMMUNIST
ACTION ORGANIZATION IS NO LESS CONSIDERABLE THAN THAT WITH WHICH
MEMBERS OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE WERE THREATENED IN N.A.A.C.P. AND BATES.  BUT WHILE AN ANGRY
PUBLIC OPINION, AND THE EVILS WHICH IT MAY SPAWN, ARE RELEVANT
CONSIDERATIONS IN ADJUDGING, IN LIGHT OF THE TOTALITY OF RELEVANT
CONSIDERATIONS, THE VALIDITY OF LEGISLATION THAT, IN EFFECTING
DISCLOSURE, MAY THEREBY ENTAIL SOME RESTRAINTS ON SPEECH AND
ASSOCIATION, THE EXISTENCE OF AN UGLY PUBLIC TEMPER DOES NOT, AS SUCH
AND WITHOUT MORE, INCAPACITATE GOVERNMENT TO REQUIRE PUBLICITY DEMANDED
BY RATIONAL INTERESTS HIGH IN THE SCALE OF NATIONAL CONCERN.  WHERE THE
MASK OF ANONYMITY WHICH AN ORGANIZATION'S MEMBERS WEAR SERVES THE
DOUBLE PURPOSE OF PROTECTING THEM FROM POPULAR PREJUDICE AND OF
ENABLING THEM TO COVER OVER A FOREIGN-DIRECTED CONSPIRACY, INFILTRATE
INTO OTHER GROUPS, AND ENLIST THE SUPPORT OF PERSONS WHO WOULD NOT, IF
THE TRUTH WERE REVEALED, LEND THEIR SUPPORT, SEE SEC. 2(1), (6), (7),
IT WOULD BE A DISTORTION OF THE FIRST AMENDMENT TO HOLD THAT IT
PROHIBITS CONGRESS FROM REMOVING THE MASK. 

THESE CONSIDERATIONS LEAD US TO SUSTAIN THE REGISTRATION PROVISIONS
OF SEC. 7, AS NOT REPUGNANT TO THE FIRST AMENDMENT, INSOFAR AS THEY
REQUIRE COMMUNIST-ACTION ORGANIZATIONS TO FILE A REGISTRATION STATEMENT
CONTAINING THE NAMES AND ADDRESSES OF ITS PRESENT OFFICERS AND
MEMBERS.  THE REQUIREMENT THAT PERSONS WHO WERE OFFICERS OR MEMBERS AT
ANY TIME DURING THE YEAR PRECEDING REGISTRATION MUST BE LISTED, SEE
SEC. 7(D)(2), (4), IS A REASONABLE MEANS OF ASSURING THAT THE
OBLIGATION TO LIST PRESENT MEMBERS AND OFFICERS WILL NOT BE EVADED. 
FOR REASONS WHICH DO NOT REQUIRE ELABORATION, THE REQUIREMENT THAT A
REGISTERING ORGANIZATION LISTS THE ALIASES OF OFFICERS AND MEMBERS, SEE
SEC. 7 (D)(5), MUST ALSO BE SUSTAINED.  NOR DO WE FIND THAT SEC.
7(D)(3), REQUIRING A FINANCIAL ACCOUNTING, OR SEC. 7(D)(6), (FN42)
REQUIRING A LISTING OF ALL PRINTING PRESSES IN THE POSSESSION OR
CONTROL OF THE ORGANIZATION OR ITS MEMBERS VIOLATES FIRST AMENDMENT
RIGHTS.  DISCLOSURE BOTH OF THE FINANCIAL TRANSACTIONS OF A COMMUNIST
ACTION ORGANIZATION AND OF THE IDENTITY OF THE ORGANS OF PUBLICATION
WHICH IT CONTROLS MIGHT NOT UNREASONABLY HAVE BEEN REGARDED BY CONGRESS
AS NECESSARY TO THE OBJECTIVE WHICH THE ACT SEEKS TO ACHIEVE:  TO BRING
FOREIGN-DOMINATED ORGANIZATIONS OUT INTO THE OPEN WHERE THE PUBLIC CAN
EVALUATE THEIR ACTIVITIES INFORMEDLY AGAINST THE REVEALED BACKGROUND OF
THEIR CHARACTER, NATURE, AND CONNECTIONS.  OF COURSE, PRINTING PRESSES
MAY NOT BE REGULATED LIKE GUNS.  THAT GENERALIZATION GETS US NOWHERE. 
ON THE CONCRETE, SPECIFIC ISSUE BEFORE US, WE HOLD THAT THE OBLIGATION
TO GIVE INFORMATION IDENTIFYING PRESSES, WITHOUT MORE AND AS APPLIED TO
FOREIGN-DOMINATED ORGANIZATIONS, DOES NOT FETTER CONSTITUTIONALLY
PROTECTED FREE EXPRESSION.  NO OTHER KIND OF REGULATION IS INVOLVED
HERE.  AS TO THE PENALTIES FOR FAILURE TO REGISTER, SEE SEC. 15(A),
WHICH THE PARTY ATTACKS AS EXORBITANT AND OPPRESSIVE, THESE ARE NOT NOW
BEFORE US.  THEY HAVE NOT YET BEEN IMPOSED ON THE PARTY AND MAY NEVER
BE.  UNITED STATES V. HARRISS, 347 U.S. 612; UNITED STATES V. WURZBACH,
280 U.S. 396. 

IT IS ARGUED THAT IF CONGRESS MAY CONSTITUTIONALLY ENACT LEGISLATION
REQUIRING THE COMMUNIST PARTY TO REGISTER, TO LIST ITS MEMBERS, TO FILE
FINANCIAL STATEMENTS, AND TO IDENTIFY ITS PRINTING PRESSES, CONGRESS
MAY IMPOSE SIMILAR REQUIREMENTS UPON ANY GROUP WHICH PURSUES UNPOPULAR
POLITICAL OBJECTIVES OR WHICH EXPRESSES AN UNPOPULAR POLITICAL
IDEOLOGY.  NOTHING WHICH WE DECIDE HERE REMOTELY CARRIES SUCH AN
IMPLICATION.  THE SUBVERSIVE ACTIVITIES CONTROL ACT APPLIES ONLY TO
FOREIGN-DOMINATED ORGANIZATIONS WHICH WORK PRIMARILY TO ADVANCE THE
OBJECTIVES OF A WORLD MOVEMENT CONTROLLED BY THE GOVERNMENT OF A
FOREIGN COUNTRY.  SEE SECS.  3(3), 2(4).  IT APPLIES ONLY TO
ORGANIZATIONS DIRECTED, DOMINATED, OR CONTROLLED BY A PARTICULAR
FOREIGN COUNTRY, THE LEADER OF A MOVEMENT WHICH, CONGRESS HAS FOUND, IS
"IN ITS ORIGINS, ITS DEVELOPMENT, AND ITS PRESENT PRACTICE, ...  A
WORLD-WIDE REVOLUTIONARY MOVEMENT WHOSE PURPOSE IT IS, BY TREACHERY,
DECEIT, INFILTRATION INTO OTHER GROUPS  ...  , ESPIONAGE, SABOTAGE,
TERRORISM, AND ANY OTHER MEANS DEEMED NECESSARY, TO ESTABLISH A
COMMUNIST TOTALITARIAN DICTATORSHIP IN THE COUNTRIES THROUGHOUT THE
WORLD THROUGH THE MEDIUM OF A WORLD-WIDE COMMUNIST ORGANIZATION."  SEC.
2(1).  THIS IS THE FULL PURPORTED REACH OF THE STATUTE, (FN43) AND ITS
FULLEST EFFECT.  THERE IS NO ATTEMPT HERE TO IMPOSE STIFLING
OBLIGATIONS UPON THE PROPONENTS OF A PARTICULAR POLITICAL CREED AS
SUCH, OR EVEN TO CHECK THE IMPORTATION OF PARTICULAR POLITICAL IDEAS
FROM ABROAD FOR PROPAGATION HERE.  THE ACT COMPELS THE REGISTRATION OF
ORGANIZED GROUPS WHICH HAVE BEEN MADE THE INSTRUMENTS OF A LONG
CONTINUED, SYSTEMATIC, DISCIPLINED ACTIVITY DIRECTED BY A FOREIGN POWER
AND PURPOSING TO OVERTHROW EXISTING GOVERNMENT IN THIS COUNTRY. 
ORGANIZATIONS ARE SUBJECT TO IT ONLY WHEN SHOWN, AFTER ADMINISTRATIVE
HEARING SUBJECT TO JUDICIAL REVIEW, TO BE DOMINATED BY THE FOREIGN
POWER OR ITS ORGANS AND TO OPERATE PRIMARILY TO ADVANCE ITS PURPOSES. 
THAT A PORTION OF THE EVIDENCE UPON WHICH SUCH A SHOWING IS MADE MAY
CONSIST IN THE EXPRESSION OF POLITICAL VIEWS BY THE ORGANIZATION DOES
NOT ALTER THE CHARACTER OF THE ACT OR OF THE INCIDENTS TO WHICH IT
ATTACHES.  SUCH EXPRESSIONS ARE RELEVANT ONLY AS PROBATIVE OF FOREIGN
CONTROL AND OF THE PURPOSES TO WHICH THE ORGANIZATION'S ACTIONS ARE
DIRECTED.  THE BOARD, IN THE PRESENT PROCEEDING, SO UNDERSTOOD THE
ACT.  THE REGISTRATION REQUIREMENT OF SEC. 7, ON ITS FACE AND AS HERE
APPLIED, DOES NOT VIOLATE THE FIRST AMENDMENT. 

C. SELF-INCRIMINATION OF THE PARTY'S OFFICERS.  SECTION 7(A) AND (C)
REQUIRES THAT ORGANIZATIONS DETERMINED TO BE COMMUNIST-ACTION
ORGANIZATIONS BY THE SUBVERSIVE ACTIVITIES CONTROL BOARD REGISTER
WITHIN THIRTY DAYS AFTER THE BOARD'S REGISTRATION ORDER BECOMES FINAL. 
REGISTRATION IS TO BE ACCOMPANIED BY A REGISTRATION STATEMENT, PREPARED
IN SUCH A MANNER AND FORM AS THE ATTORNEY GENERAL, BY REGULATIONS,
PRESCRIBES.  SEC. 7(D).  THE FORM WHICH, PURSUANT TO THIS AUTHORITY,
THE ATTORNEY GENERAL HAS PRESCRIBED REQUIRES THAT REGISTRATION
STATEMENTS "SHALL BE SIGNED BY THE PARTNERS, OFFICERS, AND DIRECTORS,
INCLUDING THE MEMBERS OF THE GOVERNING BODY OF THE ORGANIZATION."  28
CFR SEC. 11.200; DEPT. JUSTICE FORM ISA-1.  IF THE ORGANIZATION FAILS
TO REGISTER OR TO FILE A REGISTRATION STATEMENT, IT IS THE DUTY OF THE
EXECUTIVE OFFICER, THE SECRETARY, THE PRESIDENT OR CHAIRMAN, THE VICE
PRESIDENT OR VICE-CHAIRMAN, THE TREASURER, AND THE MEMBERS OF THE
GOVERNING BOARD, COUNCIL, OR BODY, TO REGISTER THE ORGANIZATION BY
FILING A REGISTRATION STATEMENT FOR IT WITHIN TEN DAYS AFTER THE
EXPIRATION OF THE THIRTY-DAY REGISTRATION PERIOD ALLOWED THE
ORGANIZATION.   SEE 28 CFR SEC. 11.205, ISSUED PURSUANT TO SEC. 7(H) OF
THE ACT.  THE PARTY CONTENDS THAT THESE REQUIREMENTS CANNOT BE IMPOSED
AND EXACTED CONSISTENTLY WITH THE SELF-INCRIMINATION CLAUSE OF THE
FIFTH AMENDMENT.  OFFICERS OF THE PARTY, IT IS ARGUED, ARE COMPELLED,
IN THE VERY ACT OF FILING A SIGNED REGISTRATION STATEMENT, TO ADMIT
THAT THEY ARE PARTY OFFICERS - AN ADMISSION WHICH WE HAVE HELD
INCRIMINATING.  BLAU V. UNITED STATES, 340 U.S. 159; CF. QUINN V.
UNITED STATES, 349 U.S. 155.  WHAT IS REQUIRED IS SAID TO BE NOT MERELY
THE PRODUCTION OF DOCUMENTS KEPT IN AN OFFICIAL CAPACITY FOR THE PARTY,
SEE MCPHAUL V. UNITED STATES, 364 U.S. 372; UNITED STATES V. WHITE, 322
U.S. 694; WILSON V. UNITED STATES, 221 U.S. 361, BUT INDIVIDUAL ACTION
BY THE OFFICERS WHICH, BY ESTABLISHING A CONNECTION BETWEEN THE
OFFICERS AND THE DOCUMENTS, IN EFFECT CONVICTS THE OFFICERS OUT OF
THEIR OWN MOUTHS.  CF. CURCIO V. UNITED STATES, 354 U.S. 118. 

MANIFESTLY, INSOFAR AS THIS CONTENTION IS DIRECTED AGAINST THE
PROVISIONS OF SEC. 7(H) AND 28 CFR SEC. 11.205, REQUIRING THAT
DESIGNATED OFFICERS FILE REGISTRATION STATEMENTS IN DEFAULT OF
REGISTRATION BY AN ORGANIZATION, IT IS PREMATURELY RAISED IN THE
PRESENT PROCEEDING.  THE DUTIES IMPOSED BY THOSE PROVISIONS WILL NOT
ARISE UNTIL AND UNLESS THE PARTY FAILS TO REGISTER.  AT THIS TIME THEIR
APPLICATION IS WHOLLY CONTINGENT AND CONJECTURAL.  CF. ALABAMA STATE
FEDERATION OF LABOR V. MCADORY, 325 U.S. 450.  (FN44) 

WE FIND THAT THE SELF-INCRIMINATION CHALLENGE TO SEC. 7(A) AND (D),
AS IMPLEMENTED BY THE ATTORNEY GENERAL'S REGULATIONS AND FORMS, IS ALSO
PREMATURE AT THIS TIME.  THE PRIVILEGE AGAINST SELF-INCRIMINATION IS
ONE WHICH NORMALLY MUST BE CLAIMED BY THE INDIVIDUAL WHO SEEKS TO AVAIL
HIMSELF OF ITS PROTECTION.  VAJTAUER V. COMMISSIONER OF IMMIGRATION,
273 U.S. 103; UNITED STATES V. MURDOCK, 284 U.S. 141; ROGERS V. UNITED
STATES, 340 U.S. 367; SEE ALSO SMITH V. UNITED STATES, 337 U.S. 137,
147-148; UNITED STATES V. MONIA, 317 U.S. 424, 427.  WE CANNOT KNOW NOW
THAT THE PARTY'S OFFICERS WILL EVER CLAIM THE PRIVILEGE.  THERE IS NO
INDICATION THAT IN THE PAST ITS HIGH-RANKING OFFICIALS HAVE SOUGHT TO
CONCEAL THEIR IDENTITY, AND NO REASON TO BELIEVE THAT IN THE FUTURE
THEY WILL DECLINE TO FILE A REGISTRATION STATEMENT WHOSE WHOLE EFFECT,
IN THIS REGARD, IS FURTHER TO EVIDENCE A FACT WHICH, TRADITIONALLY, HAS
BEEN ONE OF PUBLIC NOTICE.  WITHIN THIRTY DAYS AFTER THE BOARD'S
REGISTRATION ORDER BECOMES FINAL, THE PARTY'S OFFICERS MAY FILE SIGNED
REGISTRATION STATEMENTS IN THE FORM REQUIRED BY FORM ISA-1.  OR THEY
MAY FILE STATEMENTS CLAIMING THE PRIVILEGE IN LIEU OF FURNISHING THE
REQUIRED INFORMATION.  IF A CLAIM OF PRIVILEGE IS MADE, IT MAY OR MAY
NOT BE HONORED BY THE ATTORNEY GENERAL.  WE CANNOT, ON THE BASIS OF
SUPPOSITION THAT PRIVILEGE WILL BE CLAIMED AND NOT HONORED, PROCEED NOW
TO ADJUDICATE THE CONSTITUTIONALITY UNDER THE FIFTH AMENDMENT OF THE
REGISTRATION PROVISIONS.  WHATEVER PROCEEDING MAY BE TAKEN AFTER AND IF
THE PRIVILEGE IS CLAIMED WILL PROVIDE AN ADEQUATE FORUM FOR LITIGATION
OF THAT ISSUE. 

THE PARTY CONTENDS, HOWEVER, THAT UNDER THE SUBVERSIVE ACTIVITIES
CONTROL ACT THERE WILL BE NO OPPORTUNITY FOR ITS OFFICERS TO CLAIM THE
FIFTH AMENDMENT PRIVILEGE WITHOUT, AT THE SAME TIME, GIVING UP ALL THE
PROTECTION WHICH THE FIFTH AMENDMENT SECURES THEM.  PERSONS WHO COME
FORWARD TO MAKE THE CLAIM, IT IS SAID, WILL AS MUCH REVEAL THEMSELVES
TO THE ATTORNEY GENERAL AS OFFICERS OF THE PARTY AS IF THEY HAD IN FACT
FILED A REGISTRATION STATEMENT.  BUT IT IS ALWAYS TRUE THAT ONE WHO IS
REQUIRED TO ASSERT THE PRIVILEGE AGAINST SELF-INCRIMINATION MAY THEREBY
AROUSE THE SUSPICIONS OF PROSECUTING AUTHORITIES.  NEVERTHELESS, IT IS
NOT AND HAS NEVER BEEN THE LAW THAT THE PRIVILEGE DISALLOWS THE ASKING
OF POTENTIALLY INCRIMINATORY QUESTIONS OR AUTHORIZES THE PERSON OF WHOM
THEY ARE ASKED TO EVADE THEM WITHOUT EXPRESSLY ASSERTING THAT HIS
ANSWERS MAY TEND TO INCRIMINATE HIM.  STATE V. KEMP, 126 CONN. 60, 9
A.2D 63; O'CONNELL V. UNITED STATES, 40 F.2D 201 (C.A.2D CIR.); IN RE
KNICKERBOCKER STEAMBOAT CO., 139 F. 713 (D.C.S.D.N.Y.); IN RE GROBAN,
99 OHIO APP. 512, 135 N.E.2D 477, AFF'D, 164 OHIO ST. 26, 128 N.E.2D
106, AFF'D, 352 U.S. 330; ALLHUSEN V. LABOUCHERE, L.R. 3 Q.B.D. 654;
FISHER V. OWEN, L.R. 8 CH. D. 645.  AND SEE UNITED STATES V. HISS, 185
F.2D 822 (C.A.2D CIR.); COMMONWEALTH V. GRANITO, 326 MASS. 494, 95
N.E.2D 539.  IN UNITED STATES V. SULLIVAN, 274 U.S. 259, THIS COURT
SUSTAINED A CONVICTION FOR FAILURE TO FILE AN INCOME TAX RETURN,
DESPITE THE DEFENDANT'S OBJECTION THAT ANSWERS CALLED FOR ON THE RETURN
WOULD HAVE INCRIMINATED HIM.  MR. JUSTICE HOLMES, FOR A UNANIMOUS
COURT, WROTE THAT "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  ...  .  IF THE DEFENDANT DESIRED TO TEST THAT OR ANY
OTHER POINT HE SHOULD HAVE TESTED IT IN THE RETURN SO THAT IT COULD BE
PASSED UPON.  HE COULD NOT DRAW A CONJURER'S CIRCLE AROUND THE WHOLE
MATTER BY HIS OWN DECLARATION THAT TO WRITE ANY WORD UPON THE
GOVERNMENT BLANK WOULD BRING HIM INTO DANGER OF THE LAW."  ID., AT 263
264.  THIS WOULD, OF COURSE, BE THE NORMAL RULE.  PERHAPS SULLIVAN IS
DISTINGUISHABLE, HOWEVER, FROM THE SITUATION OF REGISTRATION UNDER THE
SUBVERSIVE ACTIVITIES CONTROL ACT.  TAX RETURNS MUST BE FILED
GENERALLY, AND ANSWERS TO TAX RETURN QUESTIONS MAY INVOLVE ANY OF A
WIDE VARIETY OF ACTIVITIES, WHEREAS THE OBLIGATION TO FILE A
REGISTRATION STATEMENT COMPELS A FEW PARTICULAR INDIVIDUALS TO COME
FORWARD, TO IDENTIFY THEMSELVES, AND TO SUGGEST, AT LEAST, THEIR
CONNECTION WITH A RELATIVELY LIMITED POTENTIAL SPHERE OF CRIMINAL
CONDUCT.  THEN, TOO, IN SULLIVAN, MR. JUSTICE HOLMES ASSUMED THAT SOME,
AT LEAST, OF THE ANSWERS TO THE QUESTIONS ON THE TAX RETURN WOULD NOT
HAVE BEEN INCRIMINATING, WHEREAS IN THE CASE OF THE REGISTRATION
STATEMENT, ANY CLAIM OF THE PRIVILEGE WOULD INVOLVE THE WITHHOLDING OF
ALL INFORMATION; THUS, THERE IS, PRESUMABLY, A GREATER GOVERNMENTAL
INTEREST IN HAVING THE PRIVILEGE CLAIMED SPECIFICALLY ON THE FORM IN
THE TAX-RETURN CIRCUMSTANCES.  TO SUGGEST THESE POSSIBLE DISTINCTIONS
IS TO RECOGNIZE THAT THE APPLICABILITY OF THE SULLIVAN PRINCIPLE HERE
MAY RAISE NOVEL AND DIFFICULT QUESTIONS AS TO THE REACH OF THE FIFTH
AMENDMENT - QUESTIONS WHICH SHOULD NOT BE DISCUSSED IN ADVANCE OF THE
NECESSITY OF DECIDING THEM.  SEE PETERS V. HOBBY, 349 U.S. 331, 338. 
THE STAGE AT WHICH THAT DECISION WILL BECOME NECESSARY, IF AT ALL, IS
THE STAGE AT WHICH SULLIVAN ITSELF WAS DECIDED:  WHEN ENFORCEMENT
PROCEEDINGS FOR FAILURE TO REGISTER ARE INSTITUTED AGAINST THE PARTY OR
AGAINST ITS OFFICERS.  SEE PEOPLE V. MCCORMICK, 102 CAL. APP. 2D SUPP.
954, 228 P.2D 349. 

IN ARGUING THAT THE ISSUE IS NOT NOW PREMATURE, THE PARTY CITES BOYD
V. UNITED STATES, 116 U.S. 616, FOR THE PROPOSITION THAT, WHERE A
STATUTE COMPELLING THE PRODUCTION OF POTENTIALLY INCRIMINATING
INFORMATION ALLOWS THE EXERCISE OF THE FIFTH AMENDMENT PRIVILEGE ONLY
UNDER CIRCUMSTANCES WHICH EFFECTIVELY NULLIFY THE AMENDMENT'S
PROTECTION, THE STATUTE MAY BE HELD "UNCONSTITUTIONAL AND VOID," NOT
MERELY UNENFORCEABLE IN CASES IN WHICH A PROPER CLAIM OF PRIVILEGE IS
MADE.  ASSUMING ARGUENDO THAT THIS PROPOSITION IS CORRECT, THE MOST
THAT CAN BE DRAWN FROM IT OF PERTINENCE TO THE PRESENT CASE IS THAT, IN
A PROSECUTION OF THE PARTY FOR FAILURE TO REGISTER, OR IN A PROSECUTION
OF ITS OFFICERS FOR FAILURE TO REGISTER THE PARTY, THE COURT WOULD HAVE
TO DETERMINE WHETHER THE SUBVERSIVE ACTIVITIES CONTROL ACT IS A STATUTE
WHICH, LIKE THE STATUTE IN BOYD, UNCONSTITUTIONALLY CIRCUMSCRIBES THE
EFFECTUAL EXERCISE OF THE PRIVILEGE.  OBVIOUSLY, SUCH A DETERMINATION
WOULD NEVER HAVE TO BE MADE IF AN ENFORCEMENT PROCEEDING WERE NEVER
BROUGHT - EITHER BECAUSE PARTY OFFICIALS REGISTERED PURSUANT TO SEC.
7(A) AND (D) WITHOUT COMPLAINT, OR BECAUSE THEY DID CHOOSE TO ASSERT
THE PRIVILEGE IN SOME FORM IN WHICH IT COULD BE RECOGNIZED.  THE BOYD
CASE INVOLVED A STATUTE PROVIDING THAT IN PROCEEDINGS OTHER THAN
CRIMINAL ARISING UNDER THE REVENUE LAWS, THE GOVERNMENT COULD SECURE AN
ORDER OF THE COURT REQUIRING THE PRODUCTION BY AN OPPOSING CLAIMANT OR
DEFENDANT OF ANY DOCUMENTS UNDER HIS CONTROL WHICH, THE GOVERNMENT
ASSERTED, MIGHT TEND TO PROVE ANY OF THE GOVERNMENT'S ALLEGATIONS.  IF
PRODUCTION WERE NOT MADE, THE ALLEGATIONS WERE TO BE TAKEN AS
CONFESSED.  ON THE GOVERNMENT'S MOTION, THE DISTRICT COURT HAD ENTERED
SUCH AN ORDER, REQUIRING THE CLAIMANTS IN A FORFEITURE PROCEEDING TO
PRODUCE A SPECIFIED INVOICE.  ALTHOUGH THE CLAIMANTS OBJECTED THAT THE
ORDER WAS IMPROPER AND THE STATUTE UNCONSTITUTIONAL IN COERCING SELF
INCRIMINATORY DISCLOSURES AND PERMITTING UNREASONABLE SEARCHES AND
SEIZURES, THEY DID, UNDER PROTEST, PRODUCE THE INVOICE, WHICH WAS,
AGAIN OVER THEIR CONSTITUTIONAL OBJECTION, ADMITTED INTO EVIDENCE. 
THIS COURT HELD THAT ON SUCH A RECORD A JUDGMENT FOR THE UNITED STATES
COULD NOT STAND, AND THAT THE STATUTE WAS INVALID AS REPUGNANT TO THE
FOURTH AND FIFTH AMENDMENTS.  IN BOYD, PRODUCTION HAD BEEN ORDERED,
OBJECTED TO, AND, THE COURT HELD, UNCONSTITUTIONALLY COMPELLED.  THERE
IS NOTHING IN THE CASE WHICH JUSTIFIES ADVISORY ADJUDICATION OF SELF
INCRIMINATION QUESTIONS PRIOR TO THE TIME WHEN A DEMAND FOR INFORMATION
HAS BEEN, AT THE LEAST, MADE AND RESISTED. 

D. LEGISLATIVE PREDETERMINATION OF ADJUDICATIVE FACT.  IT IS NEXT
ASSERTED THAT THE ACT OFFENDS THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT BY PREDETERMINING LEGISLATIVELY FACTS UPON WHICH THE
APPLICATION OF THE REGISTRATION PROVISIONS TO THE COMMUNIST PARTY
DEPENDS.  TWO ARGUMENTS ARE MADE IN THIS REGARD.  THE FIRST IS THAT
ALTHOUGH SEC. 3(3), DEFINING A "COMMUNIST-ACTION ORGANIZATION,"
PURPORTS TO REQUIRE FINDINGS THAT AN ORGANIZATION IS CONTROLLED BY "THE
FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION CONTROLLING THE WORLD
COMMUNIST MOVEMENT REFERRED TO IN SECTION 2  ..."  AND OPERATES
PRIMARILY TO ADVANCE THE OBJECTIVES "OF SUCH WORLD COMMUNIST MOVEMENT
AS REFERRED TO IN SECTION 2  ...  ," THE EXISTENCE OF A WORLD COMMUNIST
MOVEMENT, ITS DIRECTION BY THE GOVERNMENT OF A FOREIGN COUNTRY, AND THE
NATURE OF ITS OBJECTIVES ARE "FOUND" BY CONGRESS IN SEC. 2, AND MAY NOT
BE LITIGATED IN PROCEEDINGS BEFORE THE BOARD.  THUS, AN ORGANIZATION IS
PRECLUDED FROM SHOWING OPERATIVE FACTS WHICH WOULD TAKE IT OUT OF SEC.
3(3):  VIZ., THAT THERE IS NO WORLD COMMUNIST MOVEMENT, OR THAT, IF
THERE IS, IT IS NOT CONTROLLED BY A FOREIGN GOVERNMENT, OR THAT IT DOES
NOT HAVE THE OBJECTIVES ATTRIBUTED TO IT BY SEC. 2.  THE SECOND
ARGUMENT IS THAT THE BOARD WAS IN EFFECT FORECLOSED FROM FINDING THAT
THE PARTY WAS NOT A COMMUNIST-ACTION ORGANIZATION BY THE DECLARATIONS,
IN SEC. 2(9), (12), AND (15), THAT THERE ARE IN THE UNITED STATES
INDIVIDUALS WHO KNOWINGLY AND WILLFULLY PARTICIPATE IN THE WORLD
COMMUNIST MOVEMENT, THAT THERE IS A COMMUNIST NETWORK IN THE UNITED
STATES, AND THAT THE "COMMUNIST MOVEMENT IN THE UNITED STATES IS AN
ORGANIZATION  ...  ."  GIVEN THESE "FACTS," IT IS ASSERTED, NOTHING IS
LEFT TO THE BOARD BUT TO SUPPLY THE NAME OF THE ORGANIZATION - A NAME
WHICH, THE PARTY CONTENDS, IS OBVIOUS.  FURTHER, IT IS POINTED OUT,
CONGRESS IN 1954, PRIOR TO THE BOARD'S FINAL DETERMINATION IN THIS
PROCEEDING, ENACTED THE COMMUNIST CONTROL ACT, 68 STAT. 775, 50 U.S.C.
SEC. 841 ET SEQ., WHICH DECLARES IN ITS SECOND SECTION: 

"THE CONGRESS HEREBY FINDS AND DECLARES THAT THE COMMUNIST PARTY OF
THE UNITED STATES, ALTHOUGH PURPORTEDLY A POLITICAL PARTY, IS IN FACT
AN INSTRUMENTALITY OF A CONSPIRACY TO OVERTHROW THE GOVERNMENT OF THE
UNITED STATES  ...  .  THE POLICIES AND PROGRAMS OF THE COMMUNIST PARTY
ARE SECRETLY PRESCRIBED FOR IT BY THE FOREIGN LEADERS OF THE WORLD
COMMUNIST MOVEMENT  ...  .  ITS ROLE AS THE AGENCY OF A HOSTILE FOREIGN
POWER RENDERS ITS EXISTENCE A CLEAR PRESENT AND CONTINUING DANGER TO
THE SECURITY OF THE UNITED STATES  ...  ." 

THE BOARD COULD NOT, THEREFORE, THE PARTY ARGUES, FIND THAT THE
COMMUNIST PARTY WAS NOT A COMMUNIST-ACTION ORGANIZATION WITHOUT
CONTRADICTING CONGRESS. 

FIRST:  WE HAVE HELD, SUPRA, THAT THE CONGRESSIONAL FINDINGS THAT
THERE EXISTS A WORLD COMMUNIST MOVEMENT, THAT IT IS DIRECTED BY THE
COMMUNIST DICTATORSHIP OF A FOREIGN COUNTRY, AND THAT IT HAS CERTAIN
DESIGNATED OBJECTIVES, INTER ALIA, THE ESTABLISHMENT OF A COMMUNIST
TOTALITARIAN DICTATORSHIP THROUGHOUT THE WORLD THROUGH THE MEDIUM OF A
WORLD-WIDE COMMUNIST ORGANIZATION, SEC. 2(1), (4), ARE NOT OPEN TO RE
EXAMINATION BY THE BOARD.  WE FIND THAT NOTHING IN THIS VIOLATES DUE
PROCESS.  UNDER SEC. 3(3) OF THE ACT, AN ORGANIZATION MAY NOT BE FOUND
TO BE A COMMUNIST-ACTION ORGANIZATION UNLESS IT IS SHOWN TO BE, FIRST,
"SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED BY THE FOREIGN
GOVERNMENT OR FOREIGN ORGANIZATION CONTROLLING THE WORLD COMMUNIST
MOVEMENT REFERRED TO IN SECTION 2  ...  ."  THE ONLY OPERATIVE FUNCTION
OF SEC. 2 IN THIS RESPECT IS TO DESIGNATE WHAT CONGRESS MEANT BY "WORLD
COMMUNIST MOVEMENT," "THE FOREIGN GOVERNMENT," ETC.  THE
CHARACTERISTICS OF THE MOVEMENT AND THE SOURCE OF ITS CONTROL ARE NOT
TO BE ESTABLISHED BY THE ATTORNEY GENERAL IN PROCEEDINGS BEFORE THE
BOARD, NOR MAY THEY BE DISPROVED.  BUT THIS IS BECAUSE THEY ARE MERELY
DEFINING TERMS WHOSE TRUTH, AS SUCH, IS IRRELEVANT TO THE ISSUES IN
SUCH PROCEEDINGS.  THEY ARE REFERENTS WHICH IDENTIFY "THE FOREIGN
GOVERNMENT" TO WHICH SEC. 3(3) ADVERTS.  THE BOARD, CONSTRUING THE
STATUTE, CONCLUDED THAT THAT FOREIGN GOVERNMENT WAS THE SOVIET UNION. 
WE AFFIRM THAT CONSTRUCTION.  THE STATUTE, THEN, DEFINES A COMMUNIST
ACTION ORGANIZATION IN TERMS OF SUBSTANTIAL DIRECTION, DOMINATION, OR
CONTROL BY THE SOVIET UNION.  THE GOVERNMENT OFFERED EVIDENCE TO SHOW
THAT THE SOVIET UNION SUBSTANTIALLY DIRECTED, DOMINATED, OR CONTROLLED
THE COMMUNIST PARTY.  THE PARTY HAD AN OPPORTUNITY TO REBUT THIS
SHOWING, AND IT ATTEMPTED TO DO SO.  THE BOARD FOUND THAT THE
GOVERNMENT'S SHOWING WAS PERSUASIVE; IT ISSUED A 240-PAGE REPORT SO
CONCLUDING; AND THE COURT OF APPEALS AFFIRMED.  NONE OF THE OPERATIVE
FACTS WERE "PREDETERMINED," EXCEPT IN THE SENSE IN WHICH ANY STATUTE,
AS CONSTRUED, DESIGNATES THE NATURE OF THE FACTS PERTINENT TO ISSUES
WHICH MAY BE LITIGATED UNDER IT.  IF, IN FUTURE YEARS, IN A FUTURE
WORLD SITUATION, THE SOVIET UNION IS NO LONGER THE FOREIGN COUNTRY TO
WHICH SEC. 2(1) AND (4), FAIRLY READ IN THEIR CONTEXT, REFER - SO THAT
SUBSTANTIAL DOMINATION BY THE SOVIET UNION WOULD NOT BRING AN
ORGANIZATION WITHIN THE TERMS OF SEC. 3(3) - THAT, TOO, WILL BE A
MATTER OF STATUTORY CONSTRUCTION WHICH NO "FINDINGS" IN THE STATUTE
FORECLOSE.  THE BOARD OR A REVIEWING COURT WILL BE ABLE TO SAY THAT THE
"WORLD COMMUNIST MOVEMENT," AS CONGRESS MEANT THE TERM IN 1950 (AND
WHETHER OR NOT THERE REALLY EXISTED, IN 1950, A MOVEMENT HAVING ALL THE
CHARACTERISTICS DESCRIBED IN SEC. 2), NO LONGER EXISTS, OR THAT COUNTRY
X OR Y, NOT THE SOVIET UNION, NOW DIRECTS IT.  A SIMILAR PROCESS OF
ADJUDICATION IS REQUIRED UNDER SEC. 3(3)(A)(II), THE "OBJECTIVES"
COMPONENT OF THE DEFINITION OF A COMMUNIST-ACTION ORGANIZATION.  IT
PROVIDES THAT, IN ORDER TO BE FOUND A COMMUNIST-ACTION ORGANIZATION, AN
ORGANIZATION MUST BE SHOWN TO OPERATE "PRIMARILY TO ADVANCE THE
OBJECTIVES OF SUCH WORLD COMMUNIST MOVEMENT AS REFERRED TO IN SECTION 2
...  ."  WHAT THOSE OBJECTIVES ARE IS MADE CLEAR BY THE TERMS OF SEC.
2 ITSELF.  THEY ARE THERE DESCRIBED IN DETAIL.  WHETHER THEY ARE IN
FACT THE OBJECTIVES OF SOME "WORLD COMMUNIST MOVEMENT" WHICH IN FACT
EXISTS MAY NOT BE LITIGATED, BECAUSE THE QUESTION IS IRRELEVANT. 
WHETHER THE PARTICULAR ORGANIZATION AGAINST WHOM THE ATTORNEY GENERAL
FILES A PETITION FOR A REGISTRATION ORDER OPERATES PRIMARILY TO ADVANCE
THOSE OBJECTIVES IS THE PERTINENT ISSUE UNDER THE STATUTE, AND THIS
ISSUE MAY BE LITIGATED.  THAT IS ALL THAT DUE PROCESS REQUIRES. 

THE DECISIONS CITED BY THE PARTY, TOT V. UNITED STATES, 319 U.S. 463;
MCFARLAND V. AMERICAN SUGAR REF. CO., 241 U.S. 79; MANLEY V. GEORGIA,
279 U.S. 1; WESTERN & ATLANTIC R. CO. V. HENDERSON, 279 U.S. 639; AND
SEE BAILEY V. ALABAMA, 219 U.S. 219, HAVE NO APPLICATION HERE.  THESE
CASES INVOLVED STATUTES WHICH, PURPORTING TO ATTACH LEGAL CONSEQUENCES
TO ONE SET OF FACTS, CREATED A REBUTTABLE PRESUMPTION OF THE EXISTENCE
OF THAT SET OF FACTS WHICH AROSE UPON PROOF OF OTHER FACTS HAVING, THIS
COURT FOUND, NO RATIONAL RELATION TO THE FACTS UPON WHICH THE STATUTORY
CONSEQUENCES TURNED.  THE SUBVERSIVE ACTIVITIES CONTROL ACT, HOWEVER,
DOES NOT DEFINE A COMMUNIST-ACTION ORGANIZATION AS ONE WHICH OPERATES
PRIMARILY TO ADVANCE WHATEVER OBJECTIVES ARE ACTUALLY HELD BY THE WORLD
COMMUNIST MOVEMENT, LEAVING THESE OBJECTIVES AS FACTS TO BE PROVED.  IT
FINDS THAT THE PARTICULAR OBJECTIVES SET OUT IN SEC. 2 ARE THOSE OF THE
WORLD COMMUNIST MOVEMENT AND REQUIRES THE REGISTRATION OF CERTAIN
FOREIGN-DOMINATED ORGANIZATIONS WHICH OPERATE PRIMARILY TO ADVANCE
THOSE OBJECTIVES.  ONE, AND ONLY ONE, SET OF FACTS IS IN ISSUE UNDER
SEC. 3(3)(A)(II):  WHETHER A PARTICULAR ORGANIZATION DOES OR DOES NOT
OPERATE PRIMARILY TO ADVANCE THOSE OBJECTIVES; AND, AS TO THIS, THE
LEGISLATION "PREDETERMINES" NOTHING. 

SECOND:  WE DO NOT FIND THAT THE CONGRESSIONAL ASSERTIONS IN SEC.
2(9), (12) AND (15), THAT THERE EXIST IN THE UNITED STATES INDIVIDUALS
DEDICATED TO COMMUNISM, A "COMMUNIST NETWORK," A "COMMUNIST MOVEMENT,"
AND A COMMUNIST "ORGANIZATION," DEPRIVE THE PARTY OF THE FAIR HEARING
WHICH DUE PROCESS OF LAW REQUIRES.  FAIRLY READ, THESE FINDINGS NEITHER
COMPEL NOR SUGGEST THE OUTCOME IN ANY PARTICULAR LITIGATION BEFORE THE
BOARD.  THEY DO NOT CREATE THE IMPRESSION THAT THERE IS A SINGLE
COMMUNIST-ACTION ORGANIZATION IN THE UNITED STATES, STILL LESS THAT THE
COMMUNIST PARTY IS "IT."  NOR CAN WE HOLD THAT THE FINDINGS OF SEC. 2
OF THE COMMUNIST CONTROL ACT OF 1954 UNCONSTITUTIONALLY PREJUDICE THE
PARTY.  IT IS NOT SUGGESTED THAT THESE WERE ENACTED WITH A PURPOSE TO
INFLUENCE THE THEN-PENDING PROCEEDINGS IN THE PRESENT CASE.  RATHER,
THEY ARE A PORTION OF LEGISLATION DEEMED NECESSARY BY CONGRESS PURSUANT
TO ITS CONTINUING DUTY TO PROTECT THE NATIONAL WELFARE.  NOWHERE IN THE
EXTENSIVE MODIFIED REPORTS OF THE BOARD NOR IN THE OPINIONS OF THE
COURT OF APPEALS ARE THE 1954 LEGISLATIVE FINDINGS CONSIDERED.  WHILE
WE MUST, OF COURSE, ASSUME THAT THE BOARD WAS AWARE OF THEM, WE CANNOT
SAY THAT THEIR VERY ANNUNCIATION BY CONGRESS - IN THE ABSENCE OF ANY
SHOWING THAT THE BOARD TOOK THEM INTO ACCOUNT - FORECLOSED OR IMPAIRED
A FAIR ADMINISTRATIVE DETERMINATION. 

THE OTHER CONSTITUTIONAL QUESTIONS RAISED BY THE PARTY HAVE BEEN
CAREFULLY CONSIDERED, BUT DO NOT CALL FOR DETAILED DISCUSSION.  AND WE
MUST DECLINE, OF COURSE, TO ENTER INTO DISCUSSION OF THE WISDOM OF THIS
LEGISLATION.  THE CONSTITUTION DOES NOT PROHIBIT THE REQUIREMENT THAT
THE COMMUNIST PARTY REGISTER WITH THE ATTORNEY GENERAL AS A COMMUNIST
ACTION ORGANIZATION PURSUANT TO SEC. 7.    THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED. 

FN1  BY THE COMMUNIST CONTROL ACT OF 1954, 68 STAT. 775, THE
SUBVERSIVE ACTIVITIES CONTROL BOARD IS GIVEN JURISDICTION TO DETERMINE,
IN PROPER PROCEEDINGS, WHETHER ANY ORGANIZATION IS A COMMUNIST
INFILTRATED ORGANIZATION, DEFINED AS (A) AN ORGANIZATION SUBSTANTIALLY
DIRECTED, DOMINATED, OR CONTROLLED BY AN INDIVIDUAL OR INDIVIDUALS WHO
ARE, OR WHO WITHIN THREE YEARS HAVE BEEN ACTIVELY ENGAGED IN, GIVING
AID OR SUPPORT TO A COMMUNIST-ACTION ORGANIZATION, A COMMUNIST FORIEGN
GOVERNMENT, OR THE WORLD COMMUNIST MOVEMENT, (B) WHICH ORGANIZATION IS
SERVING OR WITHIN THREE YEARS HAS SERVED AS A MEANS FOR GIVING AID OR
SUPPORT TO ANY SUCH ORGANIZATION, GOVERNMENT OR MOVEMENT, OR FOR THE
IMPAIRMENT OF THE MILITARY STRENGTH OF THE UNITED STATES OR ITS
INDUSTRIAL CAPACITY TO FURNISH LOGISTICAL OR OTHER MATERIAL SUPPORT
REQUIRED BY ITS ARMED FORCES.  EVIDENTIARY MATTERS RELEVANT TO THIS
DETERMINATION ARE PRESCRIBED FOR THE CONSIDERATION OF THE BOARD. 
COMMUNIST-INFILTRATED ORGANIZATIONS ARE NOT REQUIRED TO REGISTER WITH
THE ATTORNEY GENERAL, BUT ARE REQUIRED TO LABEL THEIR PUBLICATIONS
MAILED OR TRANSMITTED THROUGH INSTRUMENTALITIES OF INTERSTATE OR
FOREIGN COMMERCE, AND THEIR COMMUNICATIONS BROADCASTS, AND ARE DEPRIVED
OF FEDERAL INCOME-TAX EXEMPTION, OF CERTAIN BENEFITS UNDER THE NATIONAL
LABOR RELATIONS ACT AS AMENDED, ETC. 

UNDER SEC. 13AH), ADDED TO THE SUBVERSIVE ACTIVITIES CONTROL ACT OF
1950 BY THE COMMUNIST CONTROL ACT OF 1954, 68 STAT. 775, 779, THE
PROVISIONS DEPRIVING LABOR ORGANIZATIONS OF NATIONAL LABOR RELATIONS
ACT LABOR-UNION BENEFITS APPLY TO LABOR ORGANIZATIONS DETERMINED BY THE
BOARD TO BE COMMUNIST-ACTION OR COMMUNIST-FRONT, AS WELL AS COMMUNIST
INFILTRATED, ORGANIZATIONS.  50 U.S.C. SEC. 792AH). 

FN2  UNDER SEC. 5(B) THE SECRETARY OF DEFENSE IS AUTHORIZED AND
DIRECTED TO DESIGNATE AND PROCLAIM A LIST OF FACILITIES WITH RESPECT TO
THE OPERATION OF WHICH HE FINDS THAT THE SECURITY OF THE UNITED STATES
REQUIRES THE APPLICATION OF THE CONTROLS PRESCRIBED BY THE ACT. 

FN3  THE PROVISO RESPECTING ALIEN MEMBERS OF COMMUNIST FRONTS IS: 

"  ...  UNLESS SUCH ALIENS ESTABLISH THAT THEY DID NOT HAVE KNOWLEDGE
OR REASON TO BELIEVE AT THE TIME THEY BECAME MEMBERS OF OR AFFILIATED
WITH SUCH AN ORGANIZATION (AND DID NOT THEREAFTER AND PRIOR TO THE DATE
UPON WHICH SUCH ORGANIZATION WAS SO REGISTERED OR SO REQUIRED TO BE
REGISTERED HAVE SUCH KNOWLEDGE OR REASON TO BELIEVE) THAT SUCH
ORGANIZATION WAS A COMMUNIST ORGANIZATION." 

THE PROVISIONS OF SEC. 212(A)(29)(C) OF THE IMMIGRATION AND
NATIONALITY ACT, 66 STAT. 163, 186, 8 U.S.C. SEC. 1182(A)(29)(C), ALSO
EXCLUDE ALIENS WHO THE CONSULAR OFFICER OR THE ATTORNEY GENERAL KNOWS
OR HAS REASONABLE GROUND TO BELIEVE PROBABLY WOULD, AFTER ENTRY, JOIN,
AFFILIATE WITH, OR PARTICIPATE IN THE ACTIVITIES OF AN ORGANIZATION
REGISTERED OR REQUIRED TO BE REGISTERED. 

FN4  SECTION 25 OF THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950
PROVIDED:  "IF A PERSON WHO SHALL HAVE BEEN NATURALIZED AFTER JANUARY
1, 1951," ETC. 

FN5  DURING THE COURSE OF PROCEEDINGS BEFORE THE BOARD, THE PARTY HAD
AGAIN INSTITUTED SUIT IN THE DISTRICT COURT TO ENJOIN CONTINUATION OF
THE HEARINGS BECAUSE OF ALLEGED BIAS OF THE HEARING PANEL AND BECAUSE
OF THE SENATE'S FAILURE BEFORE ADJOURNMENT TO CONFIRM THE NOMINATION OF
ONE MEMBER OF THE BOARD, WHO CONSEQUENTLY WITHDREW FROM THE PANEL. 
THIS SECOND INJUNCTION SUIT WAS DISMISSED ON MOTION OF THE BOARD ON
FEBRUARY 15, 1952. 

FN6  S. DOC. NO. 41, 83D CONG., 1ST SESS. 

FN7  SECTION 14(A) PROVIDES:  "  ...  IF EITHER PARTY SHALL APPLY TO
THE COURT FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE, AND SHALL SHOW TO
THE SATISFACTION OF THE COURT THAT SUCH ADDITIONAL EVIDENCE IS
MATERIAL, THE COURT MAY ORDER SUCH ADDITIONAL EVIDENCE TO BE TAKEN
BEFORE THE BOARD AND TO BE ADDUCED UPON THE PROCEEDING IN SUCH MANNER
AND UPON SUCH TERMS AND CONDITIONS AS TO THE COURT MAY SEEM PROPER. 
THE BOARD MAY MODIFY ITS FINDINGS AS TO THE FACTS, BY REASON OF THE
ADDITIONAL EVIDENCE SO TAKEN, AND IT SHALL FILE SUCH MODIFIED OR NEW
FINDINGS  ...  ." 

FN8  A TOTALLY DIFFERENT SITUATION WAS PRESENTED IN BALLARD V. UNITED
STATES, 329 U.S. 187, IN WHICH IT WAS HELD THAT A LITIGANT WHO HAD BEEN
A PARTY RESPONDENT IN A CASE PREVIOUSLY HERE ON CERTIORARI HAD NOT LOST
HIS RIGHT TO COMPLAIN OF ERROR IN THE SELECTION OF A JURY BY FAILING TO
ARGUE THE ERROR AS AN INDEPENDENT GROUND FOR SUSTAINING THE FIRST
DECISION OF THE COURT OF APPEALS, HOLDING IN HIS FAVOR ON OTHER
GROUNDS. 

REFERENCE IS ALSO MADE TO CASES IN WHICH THIS COURT HAS EXERCISED ITS
POWER TO CONTROL THE COURSE OF LITIGATION IMMEDIATELY BEFORE IT - A
POWER WHICH FINDS AN APPROPRIATE EXERCISE IN THE AVOIDANCE OF PREMATURE
CONSTITUTIONAL ADJUDICATION.  BUT THE RULE WHICH PETITIONER URGES,
WHICH WOULD PERMIT SAVING FOR A POSSIBLE LATER STAGE IN THE PROCEEDINGS
ERRORS AVAILABLE BUT NOT RAISED IN THIS COURT ON REVIEW OF
ADMINISTRATIVE ACTION, FAR FROM ENHANCING THE COURT'S ABILITY TO GIVE
EFFECT TO THE POLICY OF DEFERRING UNNECESSARY CONSTITUTIONAL DECISION,
WOULD IMPEDE THAT POLICY.  FOR IT WOULD ALLOW THE AGENCIES AND LOWER
COURTS, AFTER OUR REMAND, TO CONSIDER POTENTIALLY DISPOSITIVE
CONTENTIONS WHICH, HAD THEY BEEN BROUGHT TO OUR ATTENTION, MIGHT HAVE
DERAILED ISSUES ON WHICH DECISION TURNED. 

THE REASON FOR DEMANDING THAT ALL AVAILABLE ISSUES BE RAISED IN THE
ORDERLY COURSE OF ADMINISTRATIVE REVIEW PROCEEDINGS IS MADE
PARTICULARLY EVIDENT BY THE CIRCUMSTANCES OF THIS CASE.  THIS WAS A
LITIGATION ALREADY FIVE YEARS OLD WHEN IT FIRST CAME HERE.  UNUSUALLY
EXTENSIVE HEARINGS AND ARGUMENT HAD BEEN HAD BEFORE THE BOARD AND
EXHAUSTIVE BRIEFING AND ARGUMENT BEFORE THE COURT OF APPEALS.  THE
PETITION FOR CERTIORARI, A DOCUMENT OF NINETY-THREE PAGES PLUS
APPENDICES, PRESENTED TEN MAJOR QUESTIONS AND INNUMERABLE SUBSIDIARY
POINTS.  YET THE MATTER OF THE GITLOW MEMORANDA, WHICH IT IS NOW ARGUED
LOOMS SO LARGE IN THE CONTEXT OF THIS EXTRAORDINARILY LENGTHY AND
COMPLEX PROCEEDING, WAS NOT RAISED, AND NOT RAISED BY HIGHLY
EXPERIENCED LAWYERS WHO VIGOROUSLY CONTENDED EVERY STEP OF THE
LITIGATION.  WE REMANDED ON OTHER GROUNDS AND NOW - AFTER FIVE MORE
YEARS HAVE PASSED, AFTER THE BOARD AND THE COURT OF APPEALS HAVE EACH
TWICE MORE RECONSIDERED THIS STEADILY GROWING RECORD - WE ARE ASKED TO
REVERSE ON A GROUND WHICH THE PARTY HAD EVERY OPPORTUNITY TO BRING HERE
BUT WHICH IT ABANDONED.  TO IGNORE THE ABANDONMENT WOULD BE A MOST
ARTIFICIAL, DECISION-SHRINKING ABUSE OF THE WISE RULE OF PUTTING OFF
DECISIONS OF CONSITUTIONAL SCOPE.  AVOIDANCE OF SUCH DECISIONS, HOWEVER
COMPELLING A POLICY WITHIN THE LIMITATIONS OF ORDERED JUDICIAL
REGULARITY, OUGHT NOT TO BE COUNTENANCED BY GRAFTING AN AD HOC
EXCEPTION ONTO A GENERALLY APPLICABLE RULE OF APPELLATE PROCEDURE AND
PERMITTING PARTICULAR LITIGANTS TO AVAIL THEMSELVES OF OTHERWISE
UNCOGNIZABLE POINTS.  NO DECISION OF THIS COURT CAN BE FOUND WHICH IN
SIMILAR CIRCUMSTANCES AUTHORIZES DISREGARD OF ALL THAT HAS TRANSPIRED
OVER TEN YEARS OF LITIGATION SO AS TO ALLOW PETITIONER TO MAKE WASTE
THE HALF OF IT BY RESUSCITATING A LONG-STALE CLAIM. 

FN9  "Q:  DID YOU GIVE (THE STAROBIN LETTER INCIDENT) TO  ...  THE
FBI. 

"A:  I AM SATISFIED I GAVE IT TO THE FBI.  I COULDN'T SAY DEFINITELY,
BUT THE FBI QUESTION ME ABOUT EVERYTHING I WRITE AND SAY, AND ALSO
ABOUT MANY OTHER THINGS.  THEY QUESTION ME, AND I ANSWER THEIR
QUESTIONS. 

"Q:  WERE YOUR ANSWERS REDUCED IN WRITING? 

"A:  AS A MATTER OF FACT, I DO NOT KNOW NOW, SINCE YOU MENTION IT,
THAT I DID GIVE THIS TO THE FBI. 

"Q:  IN WRITING? 

"A:  NO, NOT IN WRITING. 

"Q:  WAS IT TAKEN DOWN BY A STENOGRAPHER? 

"A:  NO, NOT BY A STENOGRAPHER.  THEY NEVER DO THAT, EXCEPT IN RARE
CASES. 

"Q:  WAS A REPORT WRITTEN UP AND THEN SHOWN TO YOU AFTERWARDS? 

"A:  NO. THAT NEVER HAPPENS. 

"Q:  SO ALL YOU DID WAS SIMPLY HAVE AN ORAL CONVERSATION ABOUT THIS
INCIDENT? 

"A:  YES, THAT IS ALL. 

     *  *         *         *         * 

"Q:  WAS IT RECORDED? 

"A:  I JUDGE SO.  IT WAS TAKEN DOWN. 

"Q:  IT WAS TAKEN DOWN? 

"A:  YES.  I MEAN, IT WASN'T BY A STENOGRAPHER, BUT BY AN FBI AGENT. 

"Q:  IT WAS TAKEN DOWN BY AN AGENT? 

"A:  RIGHT. 

"Q:  WAS IT TAKEN DOWN IN SHORTHAND OR LONGHAND, OR WHAT? 

"A:  LONGHAND. 

"Q:  WHEN? 

"A:  THAT I DON'T KNOW.  THE REASON I RECALL IT, COUNSELOR, IF I MAY
SAY SO, IS BECAUSE IN CONNECTION WITH MY BOOK, EVERYTHING THAT WAS IN
MY BOOK WAS GONE OVER BY THE FBI, EITHER BEFORE OR AFTER ITS
PUBLICATION  ...  . 

     *         *         *         *         * 

"WHEN I SAY 'GONE OVER,' I MEAN THE INFORMATION WAS GIVEN TO THEM." 

FN10  THE PARTY DID MOVE, AT THE ORIGINAL BOARD HEARING, FOR THE
PRODUCTION OF CERTAIN REPORTS BY PARTICULAR GOVERNMENT WITNESSES WHICH,
IT MAY BE, WOULD BE COMPREHENDED AMONG THOSE SOUGHT BY ITS 1959 MOTION
FOR "ALL STATEMENTS  ...  WHICH WERE MADE BY WITNESSES WHO TESTIFIED
FOR THE ATTORNEY GENERAL AT THE ADMINISTRATIVE HEARING AND WHICH RELATE
TO THE SUBJECT MATTERS OF THEIR TESTIMONY."  AS IN THE CASE OF THE
GITLOW MEMORANDA, THE QUESTION OF THE BOARD'S DENIALS OF THESE MOTIONS
WAS NOT RAISED IN THE PETITION FOR CERTIORARI HERE IN 1955, AND HAS
THUS BEEN WAIVED.  WE NOTE THAT ONE SUCH MOTION WAS ADVERTED TO IN A
FOOTNOTE IN THE PARTY'S BRIEF IN THIS COURT AT THAT TIME, IN CONNECTION
WITH ITS ARGUMENT THAT THE BOARD ERRED IN RELYING ON THE TESTIMONY OF
SCARLETTO; THIS AND A SIMILAR FOOTNOTE REFERENCE TO DENIAL OF THE
PARTY'S MOTION FOR PRODUCTION OF STATEMENTS OF BUDENZ CONCERNING THE
STAROBIN LETTER WERE THE ONLY MENTIONS IN THE PARTY'S 224-PAGE BRIEF OF
MOTIONS FOR PRODUCTION DENIED BY THE BOARD.  THESE WERE PLAINLY
INSUFFICIENT TO RAISE THE ISSUE HERE.  SUPREME COURT RULES 23, SUBD.
1(C), 40, SUBD. 1(D)(2). 

NOR CAN WE AGREE THAT THE PARTY WAS EXCUSED FROM THE NECESSITY OF
MAKING APPROPRIATE MOTIONS BEFORE THE BOARD RESPECTING DOCUMENTS WHICH
IT WANTED PRODUCED, BECAUSE SIMILAR MOTIONS WITH RESPECT TO OTHER
DOCUMENTS HAD PREVIOUSLY BEEN DENIED.  ESPECIALLY IN ADMINISTRATIVE
PROCEEDINGS OF THIS LENGTH AND COMPLEXITY, IT IS IMPORTANT THAT A PARTY
BRING HIS PARTICULAR REQUESTS EXPLICITLY TO THE ATTENTION OF THE AGENCY
AND THE REVIEWING COURTS. 

FN11  A COMMITTEE REPORT PERTINENT TO THAT ACT, H.R. REP. NO. 2582,
76TH CONG., 3D SESS.  1, DESCRIBED THE ORGANIZATIONS AT WHICH IT WAS
DIRECTED AS THOSE "SUBSTANTIALLY CONTROLLED OR DIRECTED BY A FOREIGN
POWER  ...  ." 

FN12  AMONG THESE WERE THE LEAGUE OF NATIONS; THE RUSSO-FINNISH WAR,
1939; THE HITLER-STALIN NON-AGGRESSION PACT, 1939; ATTITUDE TOWARD
WORLD WAR II BEFORE AND AFTER THE GERMAN ATTACK ON THE SOVIET UNION;
DISSOLUTION OF THE COMMUNIST INTERNATIONAL, 1943; WEST GERMANY; THE
ITALIAN ELECTION OF 1948; NORTH ATLANTIC PACT; CONTROL OF ATOMIC
ENERGY; ELECTION OF YUGOSLAVIA TO THE UNITED NATIONS SECURITY COUNCIL,
1949; CARDINAL MINDSZENTY CASE, 1949; UNITED NATIONS ACTION IN KOREA;
COMMUNIST CHINA'S INTERVENTION IN KOREA, 1950; SEATING OF COMMUNIST
CHINA IN THE UNITED NATIONS; PEACE TREATY WITH JAPAN, 1951; PEACE IN
KOREA. 

FN13  THE PARTY POINTS OUT THAT WITH RESPECT TO A MAJOR PORTION OF
THE PAIRED SETS OF EXHIBITS PUT IN THROUGH DR. MOSELY, THE DOCUMENTS
DEMONSTRATING THE COMMUNIST PARTY'S POSITION BEAR EARLIER DATES THAN
THOSE DEMONSTRATING THE SOVIET UNION'S POSITION.  THESE EXHIBITS WERE
OFFERED ONLY AS ILLUSTRATIVE OF THE VIEWS WHICH DR. MOSELY TESTIFIED -
HIS EXPERT OPINION BEING BASED ON A FAR WIDER SELECTION OF READINGS -
WERE THOSE TAKEN APPROXIMATELY CONTEMPORANEOUSLY BY THE SOVIET AND THE
PARTY IN EACH INSTANCE.  THE GOVERNMENT EXPRESSLY DISCLAIMED ANY
ATTEMPT TO ESTABLISH CHRONOLOGICAL SEQUENCE BETWEEN THE ANNOUNCED
POSITIONS OF THE TWO. 

FN14  THE COMMITTEE REPORTS AND OTHER AUTHORITATIVE LEGISLATIVE
HISTORY PERTINENT TO SEC. 13(E)(2) ARE UNILLUMINATING IN THIS
CONNECTION.  IT IS SIGNIFICANT THAT ON THE OCCASION OF A PROPOSED HOUSE
AMENDMENT WHICH WOULD HAVE DELETED THE SIMILAR NON-DEVIATION
CONSIDERATION NOW FOUND IN SEC. 13(F)(4) OF THE ACT (PERTAINING TO
COMMUNIST-FRONT ORGANIZATIONS), MR. NIXON, WHO HAD BEEN A LEADING
PROPONENT OF THE LEGISLATION IN ITS SEVERAL FORMS, ARGUED THAT "IF THIS
PARTICULAR STANDARD IS STRICKEN OUT, IT WOULD BE VIRTUALLY IMPOSSIBLE
IN MANY CASES TO GET SUFFICIENT EVIDENCE BEFORE THE SUBVERSIVE
ACTIVITIES CONTROL BOARD TO JUSTIFY A FINDING THAT AN ORGANIZATION WAS
A COMMUNIST FRONT."  96 CONG. REC. 13764.  THE IMPLICATION IS THAT MR.
NIXON, AND PRESUMABLY OTHER PROPONENTS OF THE ENACTMENT, REGARDED THE
SEC. 13(E) AND (F) EVIDENTIARY CONSIDERATIONS AS EXPANDING THE SCOPE OF
EVIDENTIARY MATTERS OF WHICH THE BOARD MIGHT TAKE ACCOUNT IN
DETERMINING WHETHER ORGANIZATIONS MET THE DEFINITIONS OF SEC. 3(3) AND
(4).  THE PROPOSED AMENDMENT WAS DEFEATED AFTER DEBATE IN THE COURSE OF
WHICH ALL CONGRESSMEN SEEMED TACITLY TO ASSUME THAT NON-DEVIATION
INVOLVED A QUESTION OF IDENTITY OF POLICIES, NOT OF CAUSAL CONNECTION
BETWEEN POLICIES.  ID., AT 13765-13768.  AND SEE ID., AT 14531-14533,
15194. 

FN15  E.G., "THE ARTICLE DENOUNCES THE JAPANESE INVASION OF MANCHURIA
AS A CLEAR AND UNPROVOKED ACT OF AGGRESSION AGAINST CHINA, DOES IT
NOT?  ...  WAS THAT  ...  NOT THE OPINION OF EVERY RIGHT-THINKING
PERSON AT THAT TIME?"  "IS IT NOT THE UNIVERSAL OPINION OF EVERY
INFORMED OBSERVER THAT THE GREEK MONARCHY IS A REACTIONARY, FASCIST AND
CORRUPT REGIME?"  "IS IT NOT TRUE THAT VIRTUALLY EVERY COMMENTATOR ON
AN ANALYSIS OF THE ITALIAN ELECTIONS IN 1948 HAS EXPRESSED THE OPINION
THAT THERE WAS WIDESPREAD AMERICAN INTERVENTION AND INTERFERENCE IN
THESE ELECTIONS?  ... WAS THERE NOT WIDESPREAD INTERFERENCE ON THE PART
OF THE UNITED STATES IN THAT ELECTION?"  "WAS NOT THIS UNITED STATES
INTERVENTION IN FORMOSA A VIOLATION OF THE CAIRO AGREEMENT ON
FORMOSA?"  "DID NOT THIS POLICY (SENDING AMERICAN TROOPS BEYOND THE
38TH PARALLEL IN KOREA) PROVE TO BE DISASTROUS BOTH MILITARILY AND
POLITICALLY?  ...  AND WAS IT NOT PAID FOR IN THOUSANDS OF UNITED
STATES LIVES?"    FN16  E.G., CONCERNING ATTORNEY GENERAL'S EXHIBIT NO.
284, A THIRTEEN-PAGE EDITORIAL: 

"Q:  PETITIONER'S EXHIBIT 284 IS AN ARTICLE  ...  ENTITLED, 'WALL
STREET'S WAR AGAINST THE KOREAN PEOPLE,'  ...  IS THAT NOT CORRECT? 

"A:  YES, IT IS THE SUBTITLE OF AN EDITORIAL ARTICLE.    "Q:  NOW, I
CALL YOUR ATTENTION TO PAGE 11.  DOES NOT THE AUTHOR THERE SAY THAT
BROAD DEMOCRATIC REFORMS WERE INTRODUCED IN NORTH KOREA INCLUDING
UNIVERSAL SUFFRAGE, THE SECRET BALLOT, AND EQUAL STATUS FOR WOMEN, AND
THAT THE LAND WAS DISTRIBUTED TO THE PEASANTS AND THAT INDUSTRY WAS
NATIONALIZED AND THAT THE 8 HOUR DAY AND SOCIAL INSURANCE WERE
INTRODUCED, AND CHILD LABOR ABOLISHED AND A SYSTEM OF PUBLIC EDUCATION
INTRODUCED?  ...  ARE THESE NOT CORRECT STATEMENTS OF FACT?" 

FN17  THIS QUESTION WAS PUT IN A NUMBER OF FORMS.  THE MOST TYPICAL
IS THE FOLLOWING: 

"IN YOUR OPINION, COULD AN INFORMED AMERICAN OBSERVER BASING HIS
VIEWS ON WHAT IS THE BEST INTEREST OF THE AMERICAN PEOPLE REASONABLY
AND SINCERELY CONCLUDE, ONE, THAT MR. MALIK'S PROPOSAL WAS A GREAT
SERVICE TO THE CAUSE OF PEACE AND IN THE BEST INTERESTS OF THE AMERICAN
PEOPLE AS WELL AS ALL OF THE PEOPLE OF THE WORLD; TWO, THAT THE
REPRESENTATIVES OF THE AMERICAN GOVERNMENT ATTEMPTED TO FRUSTRATE MR.
MALIK'S PROPOSAL BUT WERE FORCED INTO TRUCE NEGOTIATIONS BY THE
OVERWHELMING DESIRE OF THE PEOPLE; AND THREE, THAT AMERICAN
REPRESENTATIVES BY PROVOCATIVE CONDUCT AND VARIOUS PRETEXTS ATTEMPTED
TO CAUSE THE BREAKDOWN OF ARMISTICE NEGOTIATIONS IN KOREA?" 

FN18  E.G., "PROFESSOR, IS IT NOT A FACT THAT MANY NON-COMMUNIST
COMMENTATORS AND OBSERVERS HAVE EXPRESSED THE VIEW THAT THE AMERICAN
PROPOSALS FOR INTERNATIONAL CONTROL OF ATOMIC ENERGY WERE DESIGNED TO
MAKE IT IMPOSSIBLE FOR THE SOVIET UNION TO ACCEPT THEM AND THAT THE
AMERICAN PLAN HAD NO REAL CHANCE OF ADOPTION?"  "WOULD IT NOT BE
ACCURATE TO STATE, PROFESSOR, THAT THERE WAS A VERY LARGE AND BROAD
MEASURE OF AGREEMENT AMONG THE PEOPLE AND MANY OF THE LEADERS OF BOTH
THE SOVIET UNION AND THE UNITED STATES ON THE NEED FOR THE PROMPT
ESTABLISHMENT OF A SECOND FRONT IN EUROPE?" 

FN19  E.G., "IS IT NOT A FACT, PROFESSOR, THAT THE FEDERATION OF
AMERICAN ATOMIC SCIENTISTS URGED THAT THE UNITED STATES ABANDON ITS
PROPOSAL FOR THE INTERNATIONAL OWNERSHIP OF ATOMIC RAW MATERIALS IN THE
BULLETIN PUBLISHED BY THAT ORGANIZATION IN MARCH 1950?" 

FN20  ONE NAME APPEARS IN CONNECTION WITH SIX ISSUES, WRITERS IN THE
NEW YORK HERALD TRIBUNE IN CONNECTION WITH SEVEN, PRESIDENT FRANKLIN
ROOSEVELT AND GEORGE BERNARD SHAW THREE EACH, ETC. INSTANCES IN WHICH
THE NEW YORK TIMES AND THE NEW YORK HERALD TRIBUNE ARE REFERRED TO
MERELY AS SOURCES FOR THE PRINTED TEXTS OF SPEECHES OR STATEMENTS BY
STATESMEN, OFFICIALS, ETC., ARE NOT INCLUDED IN THIS COUNT. 

FN21  IT EXPRESSLY DECLINED TO FIND A PURPOSE TO CONCEAL FOREIGN
CONTROL. 

FN22  FOR EXAMPLE, BEFORE AN INDIVIDUAL MAY BE SUBJECTED TO THE
PENALTIES OF SECS. 8 AND 15(A)(2), THE PARTY MUST HAVE FAILED TO
REGISTER, OR FAILED TO LIST HIM AS A MEMBER, AND HE MUST SUBSEQUENTLY
HAVE FAILED, WITHIN THE ALLOTTED TIME, TO REGISTER HIMSELF. 

FN23  IT WAS EVIDENT THAT THE PROHIBITIONS OF SEC. 4(A) WERE SO
COMPREHENSIVE THAT, AS POINTED OUT IN THE BRIEF FOR THE HOLDING
COMPANIES, "IT WAS  ...  QUITE IMPOSSIBLE FOR HOLDING COMPANIES TO
CONTINUE IN BUSINESS, UNREGISTERED, IN THE FACE OF THESE
PROHIBITIONS."  NOR COULD THE COMPANIES CEASE TO BE HOLDING COMPANIES,
SINCE SEC. 4(A) MADE UNLAWFUL, UNDER PENALTY UP TO $200,000, THE
DISTRIBUTION OR PUBLIC OFFERING OF UTILITY SECURITIES BY UNREGISTERED
HOLDING COMPANIES THROUGH THE MAILS OR INSTRUMENTALITIES OF INTERSTATE
COMMERCE, OR THE SALE OF SECURITIES BY SUCH COMPANIES WITH REASON TO
BELIEVE THAT THOSE SECURITIES WOULD BE DISTRIBUTED OR MADE THE SUBJECT
OF PUBLIC OFFERING THROUGH THE MAILS OR INSTRUMENTALITIES OF INTERSTATE
COMMERCE.  NO DOUBT FOR THIS REASON THE COURT REGARDED SEC. 4(A) AS A
"PENALTY" FOR FAILURE TO REGISTER, RATHER THAN AS AN INDEPENDENT
REGULATORY SCHEME FOR UNREGISTERED HOLDING COMPANIES.  SEE 303 U.S., AT
439, 442, 443.  A DECREE REQUIRING THE HOLDING COMPANIES TO COMPLY WITH
SECS. 4(A) AND 5 WAS, IN EFFECT, A DECREE COMPELLING IT TO REGISTER. 

FN24  SECTION 3 OF THE ACT AUTHORIZED THE COMMISSION TO EXEMPT FROM
ANY PROVISION OR PROVISIONS OF THE ACT CERTAIN DESCRIBED CLASSES OF
HOLDING COMPANIES.  IT WAS EVIDENT FROM THE NATURE OF ELECTRIC BOND AND
SHARE, AS DEVELOPED IN THAT LITIGATION, THAT IT DID NOT COME WITHIN ANY
OF THESE CATEGORIES, AND THE COURT DID NOT MENTION SEC. 3 IN ITS
OPINION. 

FN25  THE DECREE WAS WITHOUT PREJUDICE TO ANY RIGHTS WHICH THE
COMPANIES MIGHT HAVE AT LAW OR IN EQUITY AFTER REGISTRATION, AND LEFT
THE COMPANIES FREE TO CHALLENGE THE VALIDITY OF ANY PROVISIONS OF THE
ACT OTHER THAN SECS. 4(A) AND 5.  IN THE PRESENT PROCEEDING, OF COURSE,
THE BOARD'S ORDER DOES NOT OPERATE TO FORECLOSE THE COMMUNIST PARTY, OR
ANY OTHER PERSON ADVERSELY AFFECTED BY PROVISIONS OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT, FROM SUBSEQUENTLY CHALLENGING IN APPROPRIATE
PROCEEDINGS OTHER OF THE ACT'S PROVISIONS THAN THOSE REQUIRING THE
REGISTRATION OF COMMUNIST-ACTION ORGANIZATIONS. 

FN26  SEE NORTH AMERICAN CO. V. SECURITIES & EXCHANGE COMM'N, 327
U.S. 686. 

FN27  SEE S. REP. NO. 2369, 81ST CONG., 2D SESS. 4; H.R. REP. NO.
2980, 81ST CONG., 2D SESS.  3; H.R. REP. NO. 1844, 80TH CONG., 2D SESS.
2, 5; SEE ALSO 96 CONG. REC. 14174, 14237, 14256-14257, 14297, 14598. 

FN28 SEE ALSO COLUMBIA BROADCASTING SYSTEM, INC., V. UNITED STATES,
316 U.S. 407; TRUAX V. CORRIGAN, 257 U.S. 312. 

FN29  S. REP. NO. 2369, 81ST CONG., 2D SESS. 4.  SEE NOTE 27, SUPRA. 

FN30  SEE H.R. 1884, 80TH CONG., 1ST SESS. (PROHIBITING PARTY MEMBERS
FROM FILING AS CANDIDATES FOR ELECTIVE OFFICE); H.R. 2122, 80TH CONG.,
1ST SESS. (MAKING PARTY MEMBERSHIP UNLAWFUL); H.R. 4422, 80TH CONG.,
1ST SESS. (REQUIRING REGISTRATION OF PARTY MEMBERS AS AGENTS OF A
FOREIGN PRINCIPAL); H.R. 4482, 80TH CONG., 1ST SESS. (DISQUALIFYING
POLITICAL PARTIES AFFILIATED WITH THE COMMUNIST PARTY FROM THE BALLOT);
H.R. 5852, 80TH CONG., 2D SESS. (REQUIRING THE REGISTRATION OF
"COMMUNIST-FRONT" ORGANIZATIONS; DEFINING "COMMUNIST-FRONT" AS
INCLUDING THE COMMUNIST PARTY). 

FN31  H.R. REP. NO. 2980, 81ST CONG., 2D SESS. 5; H.R. REP. NO. 1844,
80TH CONG., 2D SESS. 6; S. REP. NO. 1358, 81ST CONG., 2D SESS. 9. 

FN32  SEE H.R. REP. NO. 2980, 81ST CONG., 2D SESS. 1-2; S. REP. NO.
1358, 81ST CONG., 2D SESS. 5; CF. H.R. REP. NO. 1844, 80TH CONG., 2D
SESS. 1; 96 CONG. REC. 13765, 14233, 14585. 

FN33  SEE, E.G., S. REP. NO. 1358, 81ST CONG., 2D SESS. 9: 

"THE COMMITTEE GAVE SERIOUS CONSIDERATION TO THE MANY WELL
INTENTIONED PROPOSALS WHICH WERE BEFORE IT WHICH ATTEMPTED TO MEET THE
PROBLEMS BY OUTLAWING THE COMMUNIST PARTY.  PROPONENTS OF THIS APPROACH
DIFFERED AS TO WHAT THEY DESIRED.  SOME WANTED TO BAR THE COMMUNIST
PARTY FROM THE BALLOT IN THE ELECTIONS.  OTHERS WOULD HAVE MADE
MEMBERSHIP IN THE COMMUNIST PARTY ILLEGAL PER SE. 

"THE COMMITTEE BELIEVES THAT THERE ARE SEVERAL COMPELLING ARGUMENTS
AGAINST THE OUTLAWING APPROACH.  THERE ARE GRAVE CONSTITUTIONAL
QUESTIONS INVOLVED IN ATTEMPTING TO INTERFERE WITH THE RIGHTS OF THE
STATES TO DECLARE WHAT PARTIES AND INDIVIDUALS MAY QUALIFY FOR
APPEARANCE ON THE BALLOT.  TO MAKE MEMBERSHIP IN A SPECIFICALLY
DESIGNATED EXISTING ORGANIZATION ILLEGAL PER SE WOULD RUN THE RISK OF
BEING HELD UNCONSTITUTIONAL ON THE GROUNDS THAT SUCH AN ACTION WAS
LEGISLATIVE FIAT. 

"AMONG OTHER POLICY CONSIDERATIONS WHICH MILITATE AGAINST THIS TYPE
OF APPROACH ARE THE FOLLOWING:

"(1)  ILLEGALIZATION OF THE PARTY MIGHT DRIVE THE COMMUNIST MOVEMENT
FURTHER UNDERGROUND, WHEREAS EXPOSURE OF ITS ACTIVITIES IS THE PRIMARY
NEED. 

"(2)  ILLEGALIZATION HAS NOT PROVED EFFECTIVE IN CANADA AND OTHER
COUNTRIES WHICH HAVE TRIED IT. 

"(3)  IF THE PRESENT COMMUNIST PARTY SEVERS THE PUPPET STRINGS BY
WHICH IT IS MANIPULATED FROM ABROAD, IF IT GIVES UP ITS UNDERCOVER
METHODS, THERE IS NO REASON FOR DENYING IT THE PRIVILEGE OF OPENLY
ADVOCATING ITS BELIEFS IN THE WAY IN WHICH TRUE POLITICAL PARTIES
ADVOCATE THEIRS.  IN POLITICS AS WELL AS SPORTS, THERE ARE CERTAIN
RULES OF THE GAME WHICH MUST BE OBEYED.  DAGGERS ARE OUT OF ORDER ON
THE AMERICAN PLAYING FIELD.  UNDERCOVER METHODS AND FOREIGN DIRECTION
CANNOT BE TOLERATED ON THE POLITICAL FIELD. 

"THIS LEGISLATION DOES NOT CONSTITUTE, THEREFORE, A FIAT.  THE
COMMUNIST PARTY OF THE UNITED STATES IS NOT MADE GUILTY OF ANY OFFENSE
BY REASON OF THE ENACTMENT OF THE PROVISIONS OF THIS ACT.  IF, HOWEVER,
THE COMMUNIST PARTY OF THE UNITED STATES OR ANY OTHER PARTY NOW IN
EXISTENCE OR TO BE FORMED OPERATES IN SUCH A WAY THAT IT COMES WITHIN
THE DEFINITIONS AND PERFORMS ACTIVITIES WHICH ARE PROSCRIBED UNDER THE
ACT, THEN THE LEGISLATION WILL APPLY TO IT  ...  .  IF SUCH A PARTY
CHANGES ITS CHARACTERISTICS, THEN THE OBJECTIVES SOUGHT BY THE
COMMITTEE WILL HAVE BEEN ACCOMPLISHED." 

FN34  WE NEED NOT CONSIDER NOW THE DECISIONS IN WHICH THIS COURT HAS
STRUCK DOWN REGULATIONS REQUIRING NOT MERELY REGISTRATION BUT THE
SECURING OF A LICENSE, ISSUED EITHER AT THE ARBITRARY DISCRETION OF
LICENSING OFFICIALS OR BY THE APPLICATION OF LICENSING STANDARDS SO
BROAD OR UNCERTAIN AS TO PERMIT ARBITRARY ACTION BY OFFICIALS, AS
PREREQUISITE TO THE RIGHT TO SPEAK.  E.G., STAUB V. BAXLEY, 355 U.S.
313; SUPERIOR FILMS, INC., V. DEPARTMENT OF EDUCATION, 346 U.S. 587;
GELLING V. TEXAS, 343 U.S. 960; JOSPEH BURSTYN, INC., V. WILSON, 343
U.S. 495; NIEMOTKO V. MARYLAND, 340 U.S. 268; KUNZ V. NEW YORK, 340
U.S. 290; LARGENT V. TEXAS, 318 U.S. 418; CANTWELL V. CONNECTICUT, 310
U.S. 296; SCHNEIDER V. STATE, 308 U.S. 147; HAGUE V. C.I.O., 307 U.S.
496; LOVELL V. GRIFFIN, 303 U.S. 444.  THE PRESENT STATUTE HAS NO SUCH
LICENSING PROVISION. 

FN35  AFTER THE SPEECH, THOMAS HAD ALSO SOLICITED ONE INDIVIDUAL, BY
NAME, TO JOIN THE UNION.  THE COURT DECLINED TO DECIDE WHETHER SUCH A
SOLICITATION, APART FROM THE SPEECH, MIGHT CONSTITUTIONALLY HAVE BEEN
MADE THE BASIS OF PUNISHMENT FOR CONTEMPT.  323 U.S., AT 541.  THE
STATE COURT'S ORDER ADJUDGING THOMAS IN CONTEMPT IMPOSED A SINGLE
SENTENCE FOR BOTH "SOLICITATIONS," AND THE COURT THEREFORE REGARDED THE
STATUTE, IN THIS APPLICATION, AS RESTRAINING AND PUNISHING THOMAS "FOR
UTTERING, IN THE COURSE OF HIS ADDRESS, THE GENERAL AS WELL AS THE
SPECIFIC INVITATION."  ID., AT 529. 

FN36  THIS IS CLEAR FROM THE COURT'S RELIANCE ON DE JONGE V. OREGON,
299 U.S. 353. 

FN37  AMONG THE COMMITTEE REPORTS, SEE THE FOLLOWING:  INVESTIGATION
OF COMMUNIST PROPAGANDA, H.R. REP. NO. 2290, 71ST CONG., 3D SESS.;
INVESTIGATION OF NAZI AND OTHER PROPAGANDA, H.R.  REP. NO. 153, 74TH
CONG., 1ST SESS.; INVESTIGATION OF UN-AMERICAN ACTIVITIES AND
PROPAGANDA, H.R. REP. NO. 2, 76TH CONG., 1ST SESS.; INVESTIGATION OF UN
AMERICAN PROPAGANDA ACTIVITIES IN THE UNITED STATES, H.R. REP. NO.
1476, 76TH CONG., 3D SESS.; INVESTIGATION OF UN-AMERICAN PROPAGANDA
ACTIVITIES IN THE UNITED STATES, H.R. REP. NO. 1, 77TH CONG., 1ST
SESS.; SPECIAL REPORT ON SUBVERSIVE ACTIVITIES AIMED AT DESTROYING OUR
REPRESENTATIVE FORM OF GOVERNMENT, H.R. REP. NO. 2748, 77TH CONG., 2D
SESS.; SOURCES OF FINANCIAL AID FOR SUBVERSIVE AND UN-AMERICAN
ACTIVITIES AND PROPAGANDA, H.R. REP.. NO. 1996, 79TH CONG., 2D SESS.;
INVESTIGATION OF UN-AMERICAN ACTIVITIES AND PROPAGANDA, H.R. REP. NO.
2233, 79TH CONG., 2D SESS.; INVESTIGATION OF UN-AMERICAN ACTIVITIES AND
PROPAGANDA, H.R. REP. NO. 2742, 79TH CONG., 2D SESS.; THE COMMUNIST
PARTY OF THE UNITED STATES AS AN AGENT OF A FOREIGN POWER, H.R. REP.
NO. 209, 80TH CONG., 1ST SESS.; REPORT ON THE COMMUNIST PARTY OF THE
UNITED STATES AS AN ADVOCATE OF OVERTHROW OF GOVERNMENT BY FORCE AND
VIOLENCE, H.R. COMM. PRINT, 80TH CONG., 2D SESS.; REPORT OF THE
COMMITTEE ON UN-AMERICAN ACTIVITIES TO THE UNITED STATES HOUSE OF
REPRESENTATIVES, EIGHTIETH CONGRESS, H.R. COMM. PRINT, 80TH CONG., 2D
SESS.; SOVIET ESPIONAGE WITHIN THE UNITED STATES GOVERNMENT (SECOND
REPORT), H.R. COMM. PRINT, 80TH CONG., 2D SESS.; THE STRATEGY AND
TACTICS OF WORLD COMMUNISM, H.R. DOC. NO. 619, 80TH CONG., 2D SESS.,
AND (COUNTRY STUDIES), H.R. DOC. NO. 154, 81ST CONG., 1ST SESS.; ANNUAL
REPORT OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES FOR THE YEAR 1949,
H.R. REP. NO. 1950, 81ST CONG., 2D SESS.; REPORT ON ATOMIC ESPIONAGE,
H.R. REP. NO. 1952, 81ST CONG., 2D SESS.  FOR A BIBLIOGRAPHY OF
PUBLISHED COMMITTEE HEARINGS DURING THIS PERIOD, SEE INTERNAL SECURITY
MANUAL, S. DOC. NO. 47, 83D CONG., 1ST SESS. 216-223. 

FN38  SEE THE FOREIGN AGENTS REGISTRATION ACT, 52 STAT. 631, AS
AMENDED, 22 U.S.C. SECS.  611-621. 

FN39  COMPARE 18 U.S.C. SEC. 612 (PROHIBITING THE PUBLICATION OR
DISTRIBUTION OF WRITTEN STATEMENTS CONCERNING CANDIDATES FOR DESIGNATED
NATIONAL ELECTIVE OFFICES UNLESS SUCH STATEMENTS CONTAIN THE NAMES OF
THE PERSONS OR ASSOCIATIONS RESPONSIBLE FOR THE PUBLICATION OR
DISTRIBUTION AND, IN THE CASE OF ASSOCIATIONS, THE NAMES OF THEIR
OFFICERS); 37 STAT.  553, AS AMENDED, 39 U.S.C. SECS. 233-234
(PRESCRIBING THE WITHDRAWAL OF SECOND-CLASS MAILING PRIVILEGES FROM
PUBLICATIONS WHICH DO NOT FILE WITH THE POSTMASTER GENERAL, AND PUBLISH
IN THE SECOND ISSUE OF THE PUBLICATION PRINTED AFTER FILING, A
STATEMENT SETTING FORTH THE NAMES OF THE PUBLICATION'S EDITORS,
PUBLISHERS, MANAGERS AND OWNERS, AND, IF THE OWNERS ARE CORPORATIONS,
THE NAMES OF STOCKHOLDERS AND OTHER SECURITY HOLDERS; AND PROHIBITING
THE PRINTING, BY PUBLICATIONS ENJOYING SECOND-CLASS PRIVILEGES, OF PAID
ADVERTISEMENTS NOT MARKED AS SUCH), SUSTAINED AGAINST FIRST AMENDMENT
CHALLENGE IN LEWIS PUBLISHING CO. V. MORGAN, 229 U.S. 288;
COMMUNICATIONS ACT OF 1934, SEC. 317, 48 STAT. 1089, 47 U.S.C. SEC. 317
(REQUIRING, IN THE CASE OF ALL MATTER BROADCAST BY RADIO FOR WHICH A
VALUABLE CONSIDERATION IS PAID BY ANY PERSON, AN ANNOUNCEMENT THAT THE
MATTER HAS BEEN PAID FOR BY SUCH PERSON).    FN40  H.R. REP. NO. 2980,
81ST CONG., 2D SESS. 2; H.R. REP. NO. 1844, 80TH CONG., 2D SESS. 5. 

FN41  ONE ASPECT OF THE CONSTITUTIONAL ATTACK ON THE NEW YORK STATUTE
IN THE BRYANT CASE WAS THAT THE "LIBERTY" PROTECTED BY THE DUE PROCESS
CLAUSE COMPREHENDED FREEDOM TO FORM HARMLESS ASSOCIATIONS AND ENGAGE IN
NON-VIOLENT ASSOCIATIONAL ACTIVITY. 

FN42  ADDED BY AN ACT OF JULY 29, 1954, 68 STAT. 586. 

FN43  SEE S. REP. NO. 2369, 81ST CONG., 2D SESS. 4; H.R. REP. NO.
2980, 81ST CONG., 2D SESS. 3; S. REP. NO. 1358, 81ST CONG., 2D SESS. 3,
5, 8; H.R. REP. NO. 1844, 80TH CONG., 2D SESS. 2; 96 CONG. REC. 13731,
14171-14173. 

FN44  A FORTIORI WE DO NOT REACH AT THIS TIME THE QUESTION OF THE
VALIDITY OF SEC. 8 OF THE ACT.  SEE NOTE 22 SUPRA. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

WHEN THIS CASE WAS HERE IN 1956, THE COURT REFUSED TO PASS UPON THE
CONSTITUTIONAL ISSUES RAISED BY THE PARTIES, AND INSTEAD REMANDED TO
THE BOARD BECAUSE OF THE POSSIBILITY THAT THE RECORD WAS TAINTED BY
PERJURED TESTIMONY.  AT THAT TIME THE COURT SAID:  "THIS NON
CONSTITUTIONAL ISSUE MUST BE MET AT THE OUTSET, BECAUSE THE CASE MUST
BE DECIDED ON A NON-CONSTITUTIONAL ISSUE, IF THE RECORD CALLS FOR IT,
WITHOUT REACHING CONSTITUTIONAL PROBLEMS."  COMMUNIST PARTY OF THE
UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S. 115,
122.  THE COURT ALSO NOTED THAT A REMAND WAS REQUIRED BECAUSE THE
"FASTIDIOUS REGARD FOR THE HONOR OF THE ADMINISTRATION OF JUSTICE
REQUIRES THE COURT TO MAKE CERTAIN THAT THE DOING OF JUSTICE BE MADE SO
MANIFEST THAT ONLY IRRATIONAL OR PERVERSE CLAIMS OF ITS DISREGARD CAN
BE ASSERTED."  ID., AT 124.  THESE STATEMENTS, APPLICABLE IN 1956, ARE
EVEN MORE APPLICABLE TODAY, FOR, IN MY OPINION, THE RECORD IN THIS CASE
PRESENTS FOUR SERIOUS ERRORS OF A NON-CONSTITUTIONAL NATURE, THE PROPER
RESOLUTION OF WHICH WOULD NOT ONLY AVOID UNNECESSARY CONSTITUTIONAL
ADJUDICATIONS, BUT WOULD ALSO BE CONSISTENT WITH THE REQUIREMENTS OF A
FAIR ADMINISTRATION OF JUSTICE.  (FN1)  TO BE SURE, I, LIKE MOST OF MY
BRETHREN, HAVE VIEWS ON THE CONSTITUTIONAL QUESTIONS WHICH ARE RAISED
BY THIS CASE.  I ALSO RECOGNIZE THAT A DECISION AS TO THESE
CONSTITUTIONAL QUESTIONS WOULD PROBABLY PUT AN END TO THIS ALREADY
PROTRACTED LITIGATION.  HOWEVER, I DO NOT BELIEVE THAT STRONGLY FELT
CONVICTIONS ON CONSTITUTIONAL QUESTIONS OR A DESIRE TO SHORTEN THE
COURSE OF THIS LITIGATION JUSTIFIES THE COURT IN RESOLVING ANY OF THE
CONSTITUTIONAL QUESTIONS PRESENTED SO LONG AS THE RECORD MAKES
MANIFEST, AS I THINK IT DOES, THE EXISTENCE OF NON-CONSTITUTIONAL
QUESTIONS UPON WHICH THIS PHASE OF THE PROCEEDINGS CAN AND SHOULD BE
ADJUDICATED.   AFTER PERSUASIVELY EXPOUNDING THE REASONS WHICH UNDERLIE
THIS COURT'S STEADFAST RELUCTANCE TO DECIDE CONSTITUTIONAL QUESTIONS
PREMATURELY, ANTE, PP. 71-81, THE COURT CONCLUDES THAT THE RESOLUTION
OF SOME OF THE CONSTITUTIONAL ISSUES RAISED BY THE PARTIES SHOULD BE
LEFT FOR ANOTHER DAY.  HOWEVER, IN A SUPRISING TURNABOUT, THE COURT
THEN PROCEEDS TO DECIDE OTHER CONSTITUTIONAL QUESTIONS, AND IT REACHES
THESE QUESTIONS ONLY BY FIRST BRUSHING ASIDE, ON THE BASIS OF A
PROCEDURAL TECHNICALITY OR A STRAINED ANALYSIS, MANY IMPORTANT NON
CONSTITUTIONAL ISSUES.  I DO NOT THINK THAT THE COURT'S ACTION CAN BE
JUSTIFIED. 

                                       I. 

ONE OF THE GOVERNMENT'S LEADING WITNESSES AT THE INITIAL HEARING
BEFORE THE BOARD WAS BENJAMIN GITLOW.  PRIOR TO HIS EXPULSION FROM THE
COMMUNIST PARTY IN 1929, GITLOW HAD BEEN A HIGH OFFICIAL IN THE PARTY. 
HIS TESTIMONY BEFORE THE BOARD COVERED OVER 1,400 PAGES IN THE RECORD,
AND THE BOARD RELIED HEAVILY UPON HIS TESTIMONY IN FINDING THAT THE
COMMUNIST INTERNATIONAL CONTROLLED PETITIONER, SUBSIDIZED IT, AND
SUPERVISED IT THROUGH FOREIGN REPRESENTATIVES IN THIS COUNTRY.  IN
ADDITION, THE BOARD RELIED UPON GITLOW'S TESTIMONY TO CORROBORATE THE
TESTIMONY OF GOVERNMENT WITNESS JOSEPH KORNFEDER, WHOSE DEMEANOR LED
THE BOARD "TO EXAMINE HIS TESTIMONY WITH  ...  CAUTION."  IN 1940,
GITLOW TURNED OVER TO THE FBI A LARGE QUANTITY OF OFFICIAL DOCUMENTS
RELATING TO THE PARTY AND ITS PAST HISTORY.  HE ALSO PREPARED AND GAVE
TO THE FBI MEMORANDA WHICH EXPLAINED AND INTERPRETED THE DOCUMENTS. 
DURING HIS DIRECT EXAMINATION AT THE ORIGINAL HEARING BEFORE THE BOARD,
GITLOW IDENTIFIED MANY OF THE ORIGINAL DOCUMENTS AND EXPLAINED THEIR
CONTENTS AND SIGNIFICANCE.  ON CROSS-EXAMINATION, THE PETITIONER,
OBVIOUSLY HOPING TO IMPEACH GITLOW'S DAMAGING TESTIMONY, MOVED FOR THE
PRODUCTION OF THE EXPLANATORY MEMORANDA WHICH GITLOW HAD PREPARED IN
1940.  THE PETITIONER'S MOTION WAS DENIED BY THE BOARD.  ALTHOUGH IN
ITS FIRST PETITION IN THE COURT OF APPEALS TO REVIEW THE ORDER OF THE
BOARD, THE PETITIONER ASSIGNED THE BOARD'S DENIAL OF THE MOTION FOR
PRODUCTION AS ERROR, THE COURT FAILED TO DECIDE THE QUESTION,
PRESUMABLY BECAUSE THE PETITIONER HAD NOT PRESSED THE POINT EITHER IN
ITS BRIEF OR DURING ORAL ARGUMENT.  COMMUNIST PARTY OF THE UNITED
STATES V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 102 U.S. APP. D.C. 395,
403, 254 F.2D 314, 322.  NOR WAS THE ISSUE RAISED IN THE PETITION FOR
CERTIORARI FILED IN THIS COURT IN 1955.  HOWEVER, AFTER THIS COURT
REMANDED THE CASE IN 1956, THE PETITIONER AGAIN MOVED THE BOARD TO
ORDER PRODUCTION OF THE MEMORANDA.  THE BOARD DENIED THE MOTION, AND,
ON REVIEW, THE COURT OF APPEALS HELD THAT THE BOARD'S RULING COULD NOT
BE CORRECTED BY A PETITION TO REVIEW THE BOARD'S ORDER.  RELYING ON
CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197, THE COURT SAID
THAT THE PETITIONER'S FAILURE TO MAKE A MOTION IN THE COURT OF APPEALS
FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE UNDER SEC. 14(A) OF THE ACT
(FN2) AT THE TIME THE BOARD INITIALLY REFUSED TO ORDER PRODUCTION OF
THE MEMORANDA CONSTITUTED A WAIVER OF THE OBJECTION.  AFTER A SECOND
REMAND TO THE BOARD BY THE COURT OF APPEALS, THE PARTY DID SEEK TO HAVE
THE MEMORANDA PRODUCED PURSUANT TO SEC.  14(A) OF THE ACT.  HOWEVER,
THE COURT OF APPEALS DENIED THE MOTION, LATER EXPLAINING THAT THE
PETITIONER'S PROCEDURAL MISSTEP COULD NOT BE RECTIFIED NUNC PRO TUNC. 
COMMUNIST PARTY OF THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL
BOARD, 107 U.S. APP. D.C. 279, 282, 277 F.2D 78, 81. 

TODAY, THE COURT REFUSES TO REACH THIS IMPORTANT EVIDENTIARY
QUESTION, AND IT DOES SO BY ADOPTING AN ARGUMENT THAT WAS UNANIMOUSLY
REJECTED BY THE COURT OF APPEALS.  102 U.S. APP.  D.C., AT 402-403, 254
F.2D, AT 321-322.  THE COURT HOLDS THAT PETITIONER MAY NOT NOW
CHALLENGE THE BOARD'S REFUSAL TO ORDER THE PRODUCTION OF THE GITLOW
MEMORANDA BECAUSE IT FAILED TO RAISE THE QUESTION IN ITS 1955 PETITION
FOR CERTIORARI.  WITH DUE RESPECT, I MUST DISSENT FROM THIS HOLDING,
WHICH, TO THE EXTENT THAT IT TRANSFORMS RULE 23, PAR. 1(C) OF OUR RULES
OF PROCEDURE (FN3) INTO AN IMMUTABLE RULE OF ABANDONMENT, IS BOTH
UNORTHODOX AND UNWISE.  THE COURT'S POSITION WILL NOT BEAR ANALYSIS. 

IT IS UNDOUBTEDLY TRUE THAT PIECEMEAL APPEALS SHOULD BE AVOIDED AND
THAT CLAIMS NOT PRESERVED THROUGHOUT A LITIGATION WILL NOT GENERALLY BE
ENTERTAINED AT SOME SUBSEQUENT, AND PERHAPS TERMINAL, STAGE OF THE
PROCEEDINGS.  HOWEVER, THIS GENERAL RULE IS NOT AN ABSOLUTE DOGMA, AND
HAS ON NUMEROUS OCCASIONS YIELDED TO SUBORDINATING POLICY
CONSIDERATIONS.  IN FACT, THE UNITED STATES REPORTS ARE REPLETE WITH
INSTANCES WHEREIN THE COURT DECIDED ISSUES WHICH WERE NEVER EVEN
MENTIONED IN THE PETITION FOR CERTIORARI.  SEE, E.G., BOYNTON V.
VIRGINIA, 364 U.S. 454; MACKEY V. MENDOZA-MARTINEZ, 362 U.S. 384; NEESE
V. SOUTHERN R. CO., 350 U.S. 77; ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE
CO., 329 U.S. 129; MARSHALL V. PLETZ, 317 U.S. 383; ERIE R. CO. V.
TOMPKINS, 304 U.S. 64.  ONE OF THE POLICY CONSIDERATIONS WHICH HAS
ALWAYS LED THE COURT TO FORSAKE THE GENERAL RULES OF WAIVER IS THE
ADMONITION THAT "WE OUGHT NOT TO PASS ON QUESTIONS OF CONSTITUTIONALITY
...  UNLESS SUCH ADJUDICATION IS UNAVOIDABLE."  SPECTOR MOTOR SERVICE,
INC., V. MCLAUGHLIN, 323 U.S. 101, 105.  THUS, IN NEESE V. SOUTHERN R.
CO., SUPRA, THE COURT REFUSED TO PASS UPON THE CONSTITUTIONAL QUESTION
WHICH HAD BEEN TENDERED BY THE PETITION FOR CERTIORARI, AND INSTEAD
RESTED ITS DECISION UPON THE ADJUDICATION OF AN EVIDENTIARY QUESTION
WHICH HAD NOT BEEN RAISED IN THE PETITION FOR CERTIORARI.  IN SO DOING,
THE COURT SAID:  "WE NEED NOT CONSIDER RESPONDENT'S CONTENTION THAT
ONLY THE JURISDICTIONAL QUESTION WAS PRESENTED BY THE PETITION FOR
CERTIORARI, FOR IN REVERSING ON THE ABOVE GROUND WE FOLLOW THE
TRADITIONAL PRACTICE OF THIS COURT OF REFUSING TO DECIDE CONSTITUTIONAL
QUESTIONS WHEN THE RECORD DISCLOSES OTHER GROUNDS OF DECISION, WHETHER
OR NOT THEY HAVE BEEN PROPERLY RAISED BEFORE US BY THE PARTIES."  ID.,
AT 78.  AND IN ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE CO., SUPRA, THE
COURT AVOIDED A DIFFICULT CONSTITUTIONAL ADJUDICATION BY RESTING ITS
DECISION ON A NON-CONSTITUTIONAL GROUND WHICH, AS THE COURT NOTED, "WAS
NEITHER CONSIDERED NOR DECIDED BY THE COURT BELOW, NOR ARGUED HERE." 
ID., AT 132.  ONLY LAST TERM IN MACKEY V. MENDOZA-MARTINEZ, SUPRA, THE
COURT, IN AN EFFORT TO AVOID AN UNNECESSARY CONSTITUTIONAL DECISION,
REMANDED THE CASE TO THE DISTRICT COURT FOR CONSIDERATION BY THAT COURT
OF A NON-CONSTITUTIONAL ISSUE WHICH HAD NOT BEEN RAISED BY EITHER PARTY
IN ANY COURT, BUT WHICH THIS COURT, SUA SPONTE, HAD DISCOVERED LURKING
IN THE RECORD.  THIS ACTION WAS TAKEN EVEN THOUGH THE CASE HAD HAD A
LENGTHY HISTORY AND HAD BEEN BEFORE THIS COURT ON A PREVIOUS OCCASION. 
SEE ALSO BOYNTON V. VIRGINIA, SUPRA.  THUS, IF THE COURT, IN ORDER TO
AVOID THE ADJUDICATION OF CONSTITUTIONAL QUESTIONS, HAS IN THE PAST
RESTED ITS DECISIONS ON ISSUES NOT RAISED BY A PETITION FOR CERTIORARI,
THERE CERTAINLY SHOULD BE NO OBJECTION TO AVOIDING A DIFFICULT
CONSTITUTIONAL DECISION IN THIS CASE BY RESOLVING A NON-CONSTITUTIONAL
ISSUE WHICH WAS DECIDED BY THE COURT OF APPEALS, EXPLICITLY RAISED IN
THE INSTANT PETITION FOR CERTIORARI, AND THOROUGHLY BRIEFED BY COUNSEL
FOR BOTH SIDES.  (FN4) 

SINCE THE PETITIONER SHOULD NOT BE DEEMED TO HAVE WAIVED THE GITLOW
QUESTION IF A RESOLUTION OF THAT QUESTION WILL MAKE IT UNNECESSARY FOR
THE COURT TO REACH THE CONSTITUTIONAL ISSUES PRESENTED BY THIS CASE,
THE NEXT QUESTION WHICH MUST BE CONSIDERED IS WHETHER A DETERMINATION
OF THE GITLOW QUESTION, ON THE MERITS, WOULD REQUIRE A REVERSAL OF THE
JUDGMENT BELOW.  I THINK IT WOULD.  AS INDICATED, THE COURT OF APPEALS,
RELYING ON THE CONSOLIDATED EDISON CASE, BASED ITS DECISION ON THE
GROUND THAT THE PETITIONER WAIVED ITS OBJECTION BY NOT HAVING MADE A
TIMELY MOTION FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE PURSUANT TO SEC.
14(A) OF THE ACT.  HOWEVER, THE LOWER COURT'S RELIANCE UPON
CONSOLIDATED EDISON IS MISPLACED.  IN THAT CASE, AN EXAMINER FOR THE
LABOR BOARD REFUSED TO PERMIT ONE OF THE PARTIES TO A PROCEEDING TO
OFFER THE TESTIMONY OF TWO WITNESSES WHO HAD NOT BEEN SCHEDULED TO
APPEAR.  INSTEAD OF INVOKING SECS. 10(E) AND (F) OF THE NATIONAL LABOR
RELATIONS ACT (WHICH IS VERY SIMILAR TO SEC. 14(A) OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT) AND SEEKING LEAVE OF THE COURT OF APPEALS TO
ADDUCE THE TESTIMONY OF THE TWO WITNESSES, THE OFFERING PARTY OBJECTED
TO THE EXAMINER'S ACTION IN A PETITION TO HAVE THE BOARD'S FINAL ORDER
SET ASIDE.  THE COURT OF APPEALS REJECTED THE CLAIM.  THIS COURT
RECOGNIZED THAT THE EXAMINER'S ACTION WAS ARBITRARY, BUT, NEVERTHELESS,
IT HELD THAT THE PARTY'S SOLE REMEDY IN SUCH A SITUATION WAS TO MAKE A
MOTION FOR LEAVE TO ADDUCE THE ADDITIONAL TESTIMONY OF THE PROFFERED
WITNESSES, AND THAT BY HAVING FAILED TO PURSUE THAT REMEDY, THE PARTY
WAIVED ITS OBJECTION. 

THE WISDOM OF THE COURT'S HOLDING IN CONSOLIDATED EDISON, INSOFAR AS
THE WAIVER QUESTION IS CONCERNED, IS CERTAINLY SUBJECT TO CRITICISM. 
NOT ONLY DID THE DECISION PERMIT A CLEARLY ARBITRARY RULING OF AN
EXAMINER TO STAND UNCORRECTED, BUT IT ALSO ESTABLISHED A CUMBERSOME
PROCEDURE WHEREBY RESORT TO THE COURT OF APPEALS WAS REQUIRED EVERY
TIME THE BOARD EXCLUDED EVIDENCE WHICH THE OFFERING PARTY THOUGHT
SHOULD HAVE BEEN ADMITTED.  IT IS NOT SUPRISING, THEREFORE, THAT THE
COURT OF APPEALS HAVE CONSISTENTLY SOUGHT WAYS TO AVOID THE IMPACT OF
THIS COURT'S DECISION IN CONSOLIDATED EDISON.  THUS, ONE COURT OF
APPEALS ADOPTED THE FICTION OF TREATING THE PETITION FOR REVIEW AS
INCLUDING, SUB SILENTIO, AN APPLICATION BY THE PARTY FOR LEAVE TO
ADDUCE ADDITIONAL EVIDENCE.  MISSISSIPPI VALLEY STRUCTURAL STEEL CO. V.
LABOR BOARD, 145 F.2D 664, 667.  ON ANOTHER OCCASION, THE SAME COURT
LIMITED THE CONSOLIDATED EDISON HOLDING "TO EVIDENCE GOING TO THE
MERITS OF THE CHARGE AND NOT TO THE QUESTION OF THE REGULARITY OR
FAIRNESS OF THE HEARING AS CONDUCTED BY THE BOARD."  CUPPLES COMPANY
MANUFACTURERS V. LABOR BOARD, 103 F.2D 953, 956.  IN FACT, EVEN THE
COURT OF APPEALS WHOSE JUDGMENT WE ARE NOW REVIEWING APPLIED THE
CONSOLIDATED EDISON RULE WITH GREAT RELUCTANCE.  (FN5)  HOWEVER, IT IS
NOT NECESSARY TO RE-EVALUATE THE HOLDING OF CONSOLIDATED EDISON, FOR,
IN MY OPINION, THAT HOLDING IS NOT APPLICABLE TO THE TYPE OF SITUATION
PRESENTED BY THIS CASE.  THE STATUTE CONSTRUED IN CONSOLIDATED EDISON,
LIKE SEC. 14(A) OF THIS ACT, DEALS ONLY WITH A SITUATION WHEREIN A
PARTY TO A PROCEEDING WISHES TO INTRODUCE ADDITIONAL EVIDENCE WHICH HE
HAS ACQUIRED INDEPENDENTLY AND WHICH WILL BOLSTER HIS OWN CASE.  THE
STATUTE, BY ITS TERMS, CLEARLY DOES NOT APPLY TO A SITUATION IN WHICH A
PARTY REQUESTS THE PRODUCTION OF DOCUMENTS FOR THE SOLE PURPOSE OF
IMPEACHING HIS OPPONENT'S WITNESSES.  THE PARTY MAKING SUCH A REQUEST
IS NOT ATTEMPTING "TO ADDUCE ADDITIONAL EVIDENCE"; HE IS MERELY SEEKING
TO USE DOCUMENTS IN THE POSSESSION OF HIS ADVERSARY TO IMPEACH
TESTIMONY WHICH HAS ALREADY BEEN ADDUCED BY HIS ADVERSARY.  IT IS THUS
INTERESTING TO NOTE THAT OF ALL THE CASES WHICH I HAVE FOUND INVOLVING
AN APPLICATION OF THE CONSOLIDATED EDISON PRINCIPLE, NOT ONE HAS DEALT
WITH THE PRODUCTION OF DOCUMENTS FOR PURPOSES OF IMPEACHMENT.  (FN6) IN
FACT, THE MOST RECENT DECISION WHICH INVOLVED SUCH A SITUATION PROPERLY
IGNORED CONSOLIDATED EDISON AND HELD, ON A PETITION TO ENFORCE THE
LABOR BOARD'S ORDER, THAT THE BOARD'S FAILURE TO REQUIRE THE PRODUCTION
OF A POSSIBLY IMPEACHING DOCUMENT REQUIRED A REMAND TO THE BOARD.  THIS
ACTION WAS TAKEN EVEN THOUGH THE COMPLAINING PARTY HAD NOT MADE A
MOTION IN THE COURT OF APPEALS FOR LEAVE TO ADDUCE ADDITIONAL
EVIDENCE.  LABOR BOARD V. ADHESIVE PRODUCTS CORP., 258 F.2D 403. 
(FN7) 

SINCE THE COURT OF APPEALS ERRED IN RESTING ITS DECISION ON
CONSOLIDATED EDISON, IT NEXT BECOMES NECESSARY TO CONSIDER THE
GOVERNMENT'S CONTENTION THAT, EVEN IF THE BOARD SHOULD HAVE ORDERED THE
PRODUCTION OF THE MEMORANDA, ITS FAILURE TO DO SO WAS MERELY HARMLESS
ERROR.  IN MY JUDGMENT, THE ERROR COMMITTED BY THE BOARD WAS ANYTHING
BUT HARMLESS.  THERE CAN BE LITTLE DOUBT THAT THE BOARD SHOULD HAVE
ORDERED THE PRODUCTION OF THE GITLOW MEMORANDA.  JENCKS V. UNITED
STATES, 353 U.S. 657, 18 U.S.C. SEC. 3500.  IT IS CERTAINLY POSSIBLE
THAT THE PETITIONER, ARMED WITH THESE MEMORANDA, MAY HAVE BEEN ABLE TO
IMPEACH SIGNIFICANTLY THE TESTIMONY OF GITLOW, WHO, AS HAS ALREADY BEEN
INDICATED, WAS A KEY WITNESS FOR THE GOVERNMENT, AND WHOSE EXPULSION
FROM THE PARTY IN 1929 UNDOUBTEDLY MADE HIM HOSTILE TOWARD THE
PETITIONER.  IT WOULD BE CONTRARY TO OUR TRADITIONAL SCRUPULOUS
PROTECTION OF THE RIGHT TO HAVE POTENTIALLY IMPEACHING DOCUMENTS
PRODUCED FOR THE COURT TO SAY THAT THE BOARD'S FAILURE TO ORDER THE
PRODUCTION OF THIS IMPORTANT WITNESS' PRIOR MEMORANDA WAS MERELY
HARMLESS ERROR.  SEE JENCKS V. UNITED STATES, SUPRA; CAMPBELL V. UNITED
STATES, 365 U.S. 85.  ACCORDINGLY, SINCE THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR IN REFUSING TO REMAND THE CASE FOR THE PRODUCTION OF
THE GITLOW MEMORANDA, I THINK THE COURT SHOULD ABANDON ITS RELIANCE
UPON AN UNORTHODOX PROCEDURAL TECHNICALITY, REMAND THE CASE TO THE
BOARD FOR THE PRODUCTION OF THE MEMORANDA AND THE FURTHER CROSS
EXAMINATION OF GITLOW, AND THEREBY, CONSISTENTLY WITH ITS OWN
ADMONITION, AVOID THE PREMATURE ADJUDICATION OF COMPLEX AND DIFFICULT
CONSTITUTIONAL ISSUES. 

                                       II. 

ANOTHER OF THE GOVERNMENT'S MAJOR WITNESSES AT THE HEARING BEFORE THE
BOARD WAS LOUIS BUDENZ.  AS THE COURT'S OPINION INDICATES, BUDENZ'
TESTIMONY FILLED SOME 700 PAGES IN THE RECORD AND WAS USED BY THE BOARD
TO SUPPORT MANY OF ITS FINDINGS, INCLUDING THE CRUCIAL FINDING THAT
PETITIONER RECEIVED FINANCIAL AID FROM THE SOVIET UNION AFTER
PETITIONER'S DISAFFILIATION FROM THE COMMUNIST INTERNATIONAL.  DURING
HIS DIRECT EXAMINATION, BUDENZ MADE REPEATED REFERENCES TO THE SO
CALLED STAROBIN LETTER AND TO THE CHILDS-WEINER CONVERSATION.  BUDENZ
ADMITTED THAT HE HAD GIVEN REPORTS TO THE FBI CONCERNING THESE MATTERS,
BUT, ON THE GOVERNMENT'S OBJECTION, THE BOARD ERRONEOUSLY DENIED THE
PETITIONER'S MOTION FOR THE PRODUCTION OF ALL SUCH PRIOR STATEMENTS. 
AFTER THIS COURT REMANDED THE CASE IN 1956, THE PETITIONER RENEWED ITS
MOTION.  ON THE GOVERNMENT'S OBJECTION, THE MOTION WAS AGAIN DENIED BY
THE BOARD.  THE COURT OF APPEALS AFFIRMED THE BOARD'S ACTION ON THE
GROUND THAT THE FBI SEEMINGLY DID NOT HAVE IN ITS POSSESSION ANY
STATEMENTS MADE BY BUDENZ CONCERNING THE STAROBIN AND WEINER MATTERS. 
(FN8)  HOWEVER, IN RESPONSE TO A PETITION FOR REHEARING FILED BY THE
PETITIONER IN THE COURT OF APPEALS, THE GOVERNMENT DISCLOSED FOR THE
FIRST TIME THAT THE FBI DID HAVE IN ITS POSSESSION DISC RECORDINGS OF A
FIVE-DAY INTERVIEW WITH BUDENZ IN 1945, AND THAT THESE DISCS CONTAINED
STATEMENTS PERTINENT TO THE STAROBIN LETTER AND THE CHILDS-WEINER
CONVERSATION.  ACCORDINGLY, THE COURT OF APPEALS ORDERED THE GOVERNMENT
TO PRODUCE ALL STATEMENTS MADE BY BUDENZ RELATING TO THE MATTERS IN
QUESTION.  DURING THE BOARD PROCEEDINGS THE FOLLOWED, STATEMENTS MADE
BY BUDENZ RELATING TO THE STAROBIN LETTER AND THE WEINER CONVERSATION
WERE EXCERPTED FROM THE RECORDED INTERVIEW AND THE FBI MEMORANDA OF
LATER INTERVIEWS, AND THESE EXTRACTS WERE FURNISHED TO THE PETITIONER. 
BASED ON THE APPARENT INCONSISTENCY BETWEEN THE STATEMENTS PRODUCED AND
THE TESTIMONY GIVEN BY BUDENZ BEFORE THE BOARD, THE PETITIONER MOVED
THAT BUDENZ BE RECALLED FOR CROSS-EXAMINATION IN THE LIGHT OF THE
PRODUCED DOCUMENTS.  AS IT TURNED OUT, HOWEVER, BUDENZ WAS SEVERELY
ILL, AND, AS STIPULATED BY BOTH PARTIES, WAS UNAVAILABLE FOR FURTHER
EXAMINATION.  THE PETITIONER THEN MOVED TO HAVE ALL OF BUDENZ'
TESTIMONY STRICKEN ON THE BASIS OF THE INCONSISTENCIES REFERRED TO, AND
ON THE FURTHER GROUND THAT BUDENZ' UNAVAILABILITY FOR CROSS-EXAMINATION
MADE IT IMPOSSIBLE FOR THE PETITIONER TO DEMONSTRATE EXACTLY HOW
UNRELIABLE ALL OF BUDENZ' TESTIMONY HAD BEEN.  THE BOARD AGREED TO
STRIKE BUDENZ' TESTIMONY ON THE STAROBIN AND WEINER MATTERS, BUT IT
REFUSED TO STRIKE ANY OTHER PORTION OF HIS TESTIMONY.  ON APPEAL, THE
COURT OF APPEALS AFFIRMED THE BOARD'S RULINGS. 

THIS COURT NOW AFFIRMS THE LOWER COURT'S HOLDING, SAYING THAT GREAT
WEIGHT MUST BE GIVEN TO THOSE WHOSE PRIMARY RESPONSIBILITY IT IS TO
CONSIDER THE CREDIBILITY OF WITNESSES.  HOWEVER, THE PROBLEM IS NOT AS
SIMPLE AS THE COURT WOULD HAVE US BELIEVE.  A DISTINCTION MUST BE DRAWN
BETWEEN THOSE SITUATIONS IN WHICH THE UNAVAILABILITY OF A WITNESS IS
DUE TO THE FAULT OF NEITHER PARTY, AND THOSE SITUATIONS IN WHICH THE
WITNESS' UNAVAILABILITY IS DIRECTLY ATTRIBUTABLE TO THE CONDUCT OF ONE
OF THE PARTIES.  THE RULE TO BE APPLIED IN EACH OF THESE CASES HAS BEEN
SUCCINCTLY STATED BY PROFESSOR WIGMORE: 

"WHERE THE WITNESS' DEATH OR LASTING ILLNESS WOULD NOT HAVE
INTERVENED TO PREVENT CROSS-EXAMINATION BUT FOR THE VOLUNTARY ACT OF
THE WITNESS HIMSELF OR THE PARTY OFFERING HIM - AS, BY A POSTPONEMENT
OR OTHER INTERRUPTION BROUGHT ABOUT IMMEDIATELY AFTER THE DIRECT
EXAMINATION, IT SEEMS CLEAR THAT THE DIRECT TESTIMONY MUST BE STRUCK
OUT.  UPON THE SAME PRINCIPLE, THE SAME RESULT SHOULD FOLLOW WHERE THE
ILLNESS IS BUT TEMPORARY AND THE OFFERING PARTY MIGHT HAVE RECALLED THE
WITNESS FOR CROSS-EXAMINATION BEFORE THE END OF THE TRIAL. 

"BUT, WHERE THE DEATH OR ILLNESS PREVENTS CROSS-EXAMINATION UNDER
SUCH CIRCUMSTANCES THAT NO RESPONSIBILITY OF ANY SORT CAN BE ATTRIBUTED
TO EITHER THE WITNESS OR HIS PARTY, IT SEEMS HARSH MEASURE TO STRIKE
OUT ALL THAT HAS BEEN OBTAINED ON THE DIRECT EXAMINATION.  PRINCIPLE
REQUIRES IN STRICTNESS NOTHING LESS.  BUT THE TRUE SOLUTION WOULD BE TO
AVOID ANY INFLEXIBLE RULE, AND TO LEAVE IT TO THE TRIAL JUDGE TO ADMIT
THE DIRECT EXAMINATION SO FAR AS THE LOSS OF CROSS-EXAMINATION CAN BE
SHOWN TO HIM TO BE NOT IN THAT INSTANCE A MATERIAL LOSS."  WIGMORE,
EVIDENCE (3D ED.), SEC. 1390. 

THUS, AS PROFESSOR WIGMORE INDICATES, IF NEITHER THE PETITIONER NOR
THE RESPONDENT HAS BEEN RESPONSIBLE FOR BUDENZ' UNAVAILABILITY, THEN
THE COURT WOULD BE CORRECT IN SAYING THAT THE BOARD MUST BE GIVEN WIDE
LATITUDE IN DECIDING WHETHER TO STRIKE BUDENZ' TESTIMONY, AND THAT THE
BOARD WILL BE REVERSED ONLY IF IT HAS ABUSED ITS DISCRETION.  HOWEVER,
IF BUDENZ' UNAVAILABILITY WAS CAUSED BY THE GOVERNMENT'S CONDUCT, THEN,
AS PROFESSOR WIGMORE STATES, "IT SEEMS CLEAR THAT THE DIRECT TESTIMONY
MUST BE STRUCK OUT." 

THE RECORD OF THIS CASE CONVINCINGLY DEMONSTRATES THAT THE GOVERNMENT
WAS DIRECTLY RESPONSIBLE FOR CREATING THE SITUATION IN WHICH THE
PETITIONER FOUND ITSELF IN 1958, WHEN IT FINALLY OBTAINED BUDENZ' PRIOR
STATEMENTS BUT COULD MAKE NO USE OF THEM.  NOT ONLY DID THE GOVERNMENT,
BY ITS OBJECTIONS TO THE PETITIONER'S ORIGINAL MOTIONS FOR PRODUCTION,
PROMPT THE BOARD TO REFUSE PRODUCTION, BUT IT ALSO PREVENTED THE COURT
OF APPEALS FROM RECTIFYING THE BOARD'S ERROR BY REPRESENTING TO THE
COURT THAT BUDENZ HAD MADE NO STATEMENTS TO THE FBI CONCERNING THE
STAROBIN AND WEINER MATTERS.  THEN, NOT UNTIL IT WAS TOO LATE FOR
BUDENZ TO BE CALLED FOR FURTHER CROSS-EXAMINATION, WAS THE COURT OF
APPEALS APPRISED OF THE EXISTENCE OF BUDENZ' PRIOR STATEMENTS.  I DO
NOT MEAN TO IMPLY THAT THE GOVERNMENT DELIBERATELY WITHHELD THIS VITAL
INFORMATION BEYOND THE TIME THAT IT COULD HAVE AIDED THE PETITIONER. 
BUT THERE CAN BE NO DOUBT THAT THE GOVERNMENT'S DELAY IN DISCLOSING THE
EXISTENCE OF BUDENZ' PRIOR STATEMENTS MADE IT IMPOSSIBLE FOR THE
PETITIONER TO MAKE EFFECTIVE USE OF THOSE STATEMENTS.  SINCE THE
GOVERNMENT'S VOLUNTARY ACTS CAUSED THE CURTAILMENT OF BUDENZ' CROSS
EXAMINATION, I THINK THE COURT OF APPEALS SHOULD HAVE GRANTED THE
RELIEF WHICH IS NORMAL IN THIS TYPE OF SITUATION BY ORDERING THE BOARD
TO STRIKE ALL OF BUDENZ' TESTIMONY. 

NOR CAN THE LOWER COURT'S ERROR BE DISMISSED AS HARMLESS.  REFERENCE
HAS ALREADY BEEN MADE TO THE IMPORTANCE OF BUDENZ' TESTIMONY TO THE
GOVERNMENT'S CASE.  MOREOVER, AS THE COURT'S OPINION DEMONSTRATES, AND
AS THE COURT OF APPEALS ADMITTED, THERE WERE MARKED DISCREPANCIES
BETWEEN BUDENZ' PRIOR STATEMENTS AND HIS TESTIMONY BEFORE THE BOARD. 
HAD THE PETITIONER BEEN GIVEN BUDENZ' PRIOR STATEMENTS, IT MIGHT HAVE
PURSUED A COURSE OF CROSS-EXAMINATION WHICH WOULD HAVE THOROUGHLY
DISCREDITED BUDENZ AND DESTROYED THE BOARD'S APPARENT FAITH IN HIS
RELIABILITY.  (FN9)  HOWEVER, THE PETITIONER WAS NEVER ABLE TO CONDUCT
SUCH AN EXAMINATION, AND THE RECORD IS THEREFORE CLOUDED BY THE NOT
UNLIKELY POSSIBILITY THAT MUCH OF BUDENZ' TESTIMONY WAS UNRELIABLE. 
THIS BEING THE CASE, REGARD FOR THE ELEMENTAL RULES OF FAIR PROCEDURE
REQUIRES THAT BUDENZ' TESTIMONY BE STRICKEN FROM THE RECORD.  CF.
COMMUNIST PARTY OF THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL
BOARD, 351 U.S. 115; MESAROSH V. UNITED STATES, 352 U.S. 1. 

                     III. 

I THINK THE COURT OF APPEALS ALSO ERRED IN ITS INTERPRETATION AND
APPLICATION OF SEC. 3(3), ONE OF THE MOST CRUCIAL PROVISIONS OF THE
ACT.  THAT SECTION DEFINES A "COMMUNIST-ACTION ORGANIZATION" AS ONE (1)
WHICH IS DIRECTED OR DOMINATED "BY THE FOREIGN GOVERNMENT OR FOREIGN
ORGANIZATION CONTROLLING THE WORLD COMMUNIST MOVEMENT," AND (2) WHICH
"OPERATES PRIMARILY TO ADVANCE THE OBJECTIVES OF SUCH WORLD COMMUNIST
MOVEMENT AS REFERRED TO IN SECTION 2 OF THIS TITLE."  64 STAT. 989. 
UNFORTUNATELY, THE STATUTE DOES NOT, IN TERMS, DEFINE THE OBJECTIVES OF
THE WORLD COMMUNIST MOVEMENT WHICH THE ALLEGED COMMUNIST-ACTION
ORGANIZATION MUST BE FOUND TO ADVANCE.  HOWEVER, TO SET THE FRAMEWORK
FOR ITS ARGUMENT, THE PETITIONER SUGGESTED THAT THE OBJECTIVES OF THE
WORLD COMMUNIST MOVEMENT, AS CONTEMPLATED BY THE ACT, SHOULD BE DEFINED
AS:  (1) THE OVERTHROW OF ALL EXISTING CAPITALIST GOVERNMENTS BY ANY
MEANS NECESSARY, INCLUDING FORCE AND VIOLENCE, AND (2) THE
ESTABLISHMENT OF A COMMUNIST TOTALITARIAN DICTATORSHIP, WHICH (3) WILL
BE SUBSERVIENT TO THE SOVIET UNION.  THE COURT OF APPEALS TENTATIVELY
ACCEPTED THE PETITIONER'S DEFINITION OF THE OBJECTIVES, AND CONCLUDED
THAT THE BOARD'S FINDINGS DEMONSTRATE THAT THE PARTY OPERATES TO
ADVANCE ALL OF THE SUGGESTED OBJECTIVES.  WITH REGARD TO THE FIRST OF
THE THREE OBJECTIVES, THE COURT RELIED UPON THE BOARD'S FINDING THAT
THE PARTY "ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES BY FORCE AND VIOLENCE IF NECESSARY." 

THE PETITIONER CONTENDS THAT, IN THE LIGHT OF OUR DECISIONS IN DENNIS
V. UNITED STATES, 341 U.S. 494; AND YATES V. UNITED STATES, 354 U.S.
298, THE OBJECTIVES COMPONENT OF SEC. 3(3) SHOULD BE CONSTRUED IN SUCH
A WAY THAT AN ORGANIZATION COULD NOT BE DEEMED TO BE ADVANCING THE
FIRST OF THE THREE CITED OBJECTIVES UNLESS IT ENGAGES IN ADVOCACY
DIRECTED AT PROMPTING FORCEFUL OVERTHROW OF THE GOVERNMENT, AS
DISTINGUISHED FROM ADVOCACY AS AN ABSTRACT DOCTRINE; THAT THE BOARD DID
NOT FIND THAT THE PARTY ENGAGED IN ILLEGAL ADVOCACY, BUT INSTEAD FOUND
THAT THE PETITIONER MERELY ENGAGED IN THE ADVOCACY OF FORCE "IF
NECESSARY," WHICH IS TANTAMOUNT TO THE ADVOCACY OF FORCEFUL OVERTHROW
AS AN ABSTRACT DOCTRINE; AND THAT THE ABSENCE OF A FINDING OF UNLAWFUL
ADVOCACY ON THE PART OF THE PETITIONER RENDERS THE BOARD'S ORDER
UNSUPPORTABLE. 

IN MY JUDGMENT, THE PETITIONER'S ARGUMENT IS EMINENTLY CORRECT.  IN
YATES V. UNITED STATES, SUPRA, THE COURT MADE IT CLEAR THAT A
DISTINCTION HAD TO BE DRAWN "BETWEEN ADVOCACY OF ABSTRACT DOCTRINE AND
ADVOCACY DIRECTED AT PROMOTING UNLAWFUL ACTION."  ID., AT 318.  IT THEN
WENT ON TO HOLD THAT, WHILE THE LATTER TYPE OF ADVOCACY COULD BE
PROHIBITED CONSISTENTLY WITH THE DICTATES OF THE FIRST AMENDMENT, AN
ATTEMPT TO PROHIBIT THE FORMER TYPE OF ADVOCACY WOULD RAISE GRAVE
CONSTITUTIONAL PROBLEMS.  THE COURT THEREFORE CONCLUDED THAT CONGRESS,
WELL AWARE OF THIS DISTINCTION AND OF THE CONSTITUTIONAL PROBLEMS
INVOLVED, INTENDED THE SMITH ACT TO APPLY ONLY TO ADVOCACY WHICH WAS
AIMED AT INCITING TO ACTION.  SEE ALSO DENNIS V. UNITED STATES, SUPRA.
THERE IS NO REASON TO ASSUME THAT WHEN CONGRESS ADOPTED THE SUBVERSIVE
ACTIVITIES CONTROL ACT IT WAS ANY LESS AWARE OF THE CONSTITUTIONAL
PITFALLS INVOLVED IN ATTEMPTING TO PROSCRIBE ADVOCACY AS AN ABSTRACT
DOCTRINE THAN IT WAS WHEN IT PASSED THE SMITH ACT, FOR, AS THE COURT
SAID IN YATES, IN CONSTRUING A CONGRESSIONAL ENACTMENT, "WE SHOULD NOT
ASSUME THAT CONGRESS CHOSE TO DISREGARD A CONSTITUTIONAL DANGER ZONE SO
CLEARLY MARKED."  ID., AT 319.  THEREFORE, SINCE THE CONSTRUCTION URGED
BY THE PETITIONER WILL MAKE THE STATUTE MORE COMPATIBLE WITH THIS
COURT'S PRIOR DECISIONS DEFINING THE AREA OF PROHIBITION PERMISSIBLE
UNDER THE FIRST AMENDMENT, IT SHOULD BE ADOPTED, AND THE COURT SHOULD
HOLD THAT THE BOARD CANNOT REQUIRE A GROUP TO REGISTER AS A COMMUNIST
ACTION ORGANIZATION UNLESS IT FIRST FINDS THAT THE ORGANIZATION IS
ENGAGED IN ADVOCACY AIMED AT INCITING ACTION.  (FN10)  CLEARLY, THE
BOARD MADE NO SUCH FINDING IN THIS CASE.  THE BOARD MERELY FOUND THAT
THE PETITIONER HAS ENGAGED IN ADVOCATING THE USE OF FORCE "IF
NECESSARY."  HOWEVER, THIS IS NOT THE SORT OF ADVOCACY WHICH INCITES TO
ACTION.  AT MOST, IT IS NO MORE THAN THE FORMULATION OF AN ABSTRACT
DOCTRINE, WHICH, AS THE COURT INDICATED IN YATES, "IS TOO REMOTE FROM
CONCRETE ACTION TO BE REGARDED AS THE KIND OF INDOCTRINATION
PREPARATORY TO ACTION WHICH WAS CONDEMNED IN DENNIS."  ID., AT 321
322.    THE COURT BRUSHES ASIDE THE PETITIONER'S ARGUMENT BY SAYING
THAT, BECAUSE THIS STATUTE IS "REGULATORY" AND NOT "PROHIBITORY," THE
YATES AND DENNIS CASES ARE INAPPLICABLE.  HOWEVER, IT BLINKS REALITY TO
SAY THAT THIS STATUTE IS NOT PROHIBITORY.  THERE CAN BE LITTLE DOUBT
THAT THE REGISTRATION PROVISIONS OF THE STATUTE AND THE HARSH SANCTIONS
WHICH ARE AUTOMATICALLY IMPOSED AFTER AN ORDER TO REGISTER HAS BEEN
ISSUED MAKE THIS ACT AS PROHIBITORY AS ANY CRIMINAL STATUTE. 
THEREFORE, FOR THE REASONS WHICH I HAVE STATED, I THINK THE BOARD'S
ORDER OUGHT TO BE VACATED AND THE CASE REMANDED SO THAT THE BOARD CAN
DETERMINE WHETHER THE EVIDENCE SUPPORTS A FINDING THAT THE PETITIONER
IS ENGAGING IN ADVOCACY AIMED AT INCITING THE FORCEFUL OVERTHROW OF THE
GOVERNMENT. 

                                       IV. 

FINALLY, I THINK THE COURT OF APPEALS ERRED IN SUSTAINING AN ORDER OF
THE BOARD WHICH WAS BASED, IN PART, ON A FINDING WHICH THE COURT
ADMITTED LACKED EVIDENTIARY SUPPORT.  SECTION 13(E) OF THE ACT LISTS
EIGHT CRITERIA WHICH THE BOARD SHOULD CONSIDER IN DETERMINING WHETHER A
GROUP IS A COMMUNIST-ACTION ORGANIZATION.  THE SEVENTH OF THESE
CRITERIA IS THE EXTENT TO WHICH "FOR THE PURPOSE OF CONCEALING FOREIGN
DIRECTION, DOMINATION, OR CONTROL, OR OF EXPEDITING OR PROMOTING ITS
OBJECTIVES," 64 STAT. 999, AN ORGANIZATION ENGAGES IN CERTAIN SECRET
PRACTICES OR OTHERWISE OPERATES ON A SECRET BASIS.  IN ITS ORIGINAL
REPORT, THE BOARD CONCLUDED THAT THE PARTY ENGAGED IN SECRET PRACTICES
IN ORDER TO ACHIEVE BOTH OF THE PURPOSES RECITED IN THE ACT.  THE COURT
OF APPEALS, IN ITS FIRST OPINION, HELD THAT THE FINDING OF SECRET
PRACTICES WAS PROPER, BUT THAT THE GOVERNMENT'S EVIDENCE FAILED TO
DEMONSTRATE THE PURPOSES FOR WHICH THESE PRACTICES WERE PURSUED.  WHILE
RECOGNIZING THIS DEFICIENCY IN THE GOVERNMENT'S EVIDENCE, THE COURT
NEVERTHELESS AFFIRMED THE BOARD'S ORDER.  THE TWO MODIFIED REPORTS,
ISSUED BY THE BOARD AFTER THE FIRST AND SECOND REMANDS, ELIMINATED THE
ORIGINAL FINDING THAT ONE OF THE PURPOSES OF THE SECRET PRACTICES WAS
THE CONCEALMENT OF FOREIGN CONTROL.  HOWEVER, THOUGH NO ADDITIONAL
EVIDENCE WAS TAKEN REGARDING SECRET PRACTICES, AND EVEN THOUGH THE
COURT OF APPEALS HAD ALREADY EXPRESSED ITS VIEW THAT THE BOARD'S
PURPOSE FINDINGS WERE UNSUPPORTED BY THE EVIDENCE, THE TWO MODIFIED
REPORTS REITERATED THE FINDING THAT THE SECRET PRACTICES WERE ENGAGED
IN TO PROMOTE THE OBJECTIVES OF THE COMMUNIST PARTY.  IN ITS THIRD
OPINION, THE COURT OF APPEALS ADHERED TO ITS RULING THAT THE BOARD'S
FINDING WAS UNSUPPORTED BY THE EVIDENCE, BUT IT NEVERTHELESS AFFIRMED
THE ORDER, HOLDING THAT THE FINDING WAS MERELY A SUBSIDIARY ONE AND
THAT THE WHOLE RECORD SUPPORTED THE BOARD'S CONCLUSION THAT THE
PETITIONER MET THE DEFINITION OF A COMMUNIST-ACTION ORGANIZATION
CONTAINED IN SEC. 3(3). 

THE COURT NOW ADOPTS THE LOWER COURT'S REASONING, AND HOLDS THAT
SINCE THE UNSUPPORTED FINDING WAS MERELY "SUBSIDIARY," IT IS NOT
NECESSARY TO REMAND THE CASE TO ASCERTAIN WHETHER THE BOARD WOULD REACH
THE SAME ULTIMATE CONCLUSION IN THE ABSENCE OF THE UNSUPPORTED
FINDING.  I SUBMIT THAT THE COURT'S ACTION DOES NOT SQUARE EITHER WITH
THE FACTS, AS THEY APPEAR IN THE RECORD, OR WITH THE PRIOR DECISIONS OF
THIS COURT.  IT IS UNREALISTIC TO CHARACTERIZE THE BOARD'S SECRECY
FINDING AS INSIGNIFICANT AND SUBSIDIARY.  IT DIRECTLY RELATES TO ONE OF
THE EIGHT ENUMERATED CRITERIA LISTED IN SEC. 13(E).  THE BOARD DEVOTED
19 PAGES TO IT IN THE MODIFIED REPORT.  IT IS ALSO THE ONLY ONE OF THE
SEC. 13(E) STANDARDS CONCERNING WHICH THERE WAS ANY SUBSTANTIAL AMOUNT
OF EVIDENCE OF POST-ACT CONDUCT ON THE PART OF THE PARTY.  (FN11)  IN
VIEW OF THESE CIRCUMSTANCES, AND IN VIEW OF THE FACT THAT THE BOARD
FOUND IT NECESSARY TO REASSERT THE FINDING, EVEN THOUGH IT KNEW THAT
THE COURT OF APPEALS CONSIDERED THE FINDING UNSUPPORTED BY THE
EVIDENCE, HOW CAN IT BE SAID THAT THE FINDING IS UNIMPORTANT?  SURELY,
IF THE FINDING IS AS UNIMPORTANT TO THE BOARD'S CONCLUSION AS THE COURT
OF APPEALS AND THIS COURT SEEM TO THINK IT IS, THE BOARD WOULD HAVE
ABANDONED THE FINDING ALTOGETHER RATHER THAN RETAIN IT AND RISK ANOTHER
REMAND EITHER BY THE COURT OF APPEALS OR BY THIS COURT.  THESE FACTORS
WOULD NOT SEEM TO INDICATE THAT THE FINDING WAS TRIVIAL, BUT, ON THE
CONTRARY, THAT IT WAS CRUCIAL TO THE BOARD'S ULTIMATE CONCLUSION.  THIS
BEING THE CASE, IT WOULD NOT DO FOR THE COURT OF APPEALS OR FOR THIS
COURT TO CONCLUDE THAT THE BOARD WOULD HAVE REACHED THE SAME CONCLUSION
WITHOUT RELYING UPON THE UNSUPPORTED FINDING.  CONGRESS HAS PLACED THE
RESPONSIBILITY FOR MAKING THAT DETERMINATION IN THE BOARD AND NOT IN
THE COURTS.  AS THIS COURT SAID IN SECURITIES & EXCHANGE COMM'N V.
CHENERY CORP., 318 U.S. 80, 88, "IF AN ORDER IS VALID ONLY AS A
DETERMINATION OF POLICY OR JUDGMENT WHICH THE AGENCY ALONE IS
AUTHORIZED TO MAKE AND WHICH IT HAS NOT MADE, A JUDICIAL JUDGMENT
CANNOT BE MADE TO DO SERVICE FOR AN ADMINISTRATIVE JUDGMENT."  AN
AGENCY'S "ACTION MUST BE MEASURED BY WHAT  ...  IT DID, NOT BY WHAT IT
MIGHT HAVE DONE."  ID., AT 93-94.  SEE ALSO LABOR BOARD V. VIRGINIA
ELEC.  & POWER CO., 314 U.S. 469.  THEREFORE, BECAUSE THE BOARD'S ORDER
IS CLOUDED BY THE FACT THAT IT RESTS UPON A FINDING WHICH IS ADMITTEDLY
UNSUPPORTED BY THE EVIDENCE, I THINK THE COURT SHOULD STRIKE THE
SECRECY FINDING AND REMAND THE CASE TO THE BOARD FOR RECONSIDERATION. 

   V. 

IN MY VIEW, THE COURT TODAY STRAYS FROM THE WELL-TROD PATH OF OUR
PRIOR DECISIONS BY REACHING OUT TO DECIDE CONSTITUTIONAL ISSUES
PREMATURELY.  IF THE COURT WOULD REMAND ON ANY ONE OF THE FOUR ERRORS
WHICH I HAVE DISCUSSED, AND I THINK EACH WARRANTS A REMAND, THE
RESOLUTION OF THE DIFFICULT CONSTITUTIONAL ISSUES PRESENTED BY THIS
CASE WOULD CERTAINLY BE POSTPONED, AND PERHAPS MADE TOTALLY
UNNECESSARY.  FOR, IF FURTHER CROSS-EXAMINATION OF GITLOW BASED ON THE
MEMORANDA DISCREDITED HIS TESTIMONY, OR IF ALL OF BUDENZ' TESTIMONY
WERE STRICKEN, OR IF THE BOARD WERE REQUIRED TO FIND THAT THE
PETITIONER ACTUALLY ENGAGED IN ADVOCACY AIMED AT INCITING ACTION, OR IF
THE SECRECY FINDING WERE STRICKEN, THE GOVERNMENT'S CASE MIGHT BE SO
WEAKENED THAT IT WOULD BE IMPOSSIBLE FOR THE BOARD TO CONCLUDE, ON THE
BASIS OF THE PRESENT RECORD, THAT THE PETITIONER IS A COMMUNIST-ACTION
ORGANIZATION, AS THAT TERM IS USED IN THE STATUTE.  MOREOVER, A REMAND
ON THE BASIS OF THESE NON-CONSTITUTIONAL ERRORS IS THE ONLY DISPOSITION
THAT WOULD BE CONSISTENT WITH THE "FASTIDIOUS REGARD FOR THE HONOR OF
THE ADMINISTRATION OF JUSTICE" WHICH THE COURT FOUND SO COMPELLING IN
1956.  (FN12)  351 U.S., AT 124. 

I THINK IT IS UNWISE FOR THE COURT TO BRUSH ASIDE THE
NONCONSTITUTIONAL ERRORS DISCLOSED BY THIS RECORD.  HOWEVER, SINCE THE
COURT INSISTS UPON DOING SO, I FEEL CONSTRAINED TO EXPRESS MY VIEWS ON
A DISPOSITIVE CONSTITUTIONAL ISSUE WHICH NOW CONFRONTS US BY VIRTUE OF
THE COURT'S HOLDING ON THE NON-CONSTITUTIONAL QUESTIONS.  I AGREE WITH
MR. JUSTICE BRENNAN THAT, ONCE HAVING ENTERED THE AREA OF
CONSTITUTIONAL ADJUDICATION, THE COURT MUST DECIDE NOW WHETHER THE ACT
VIOLATES THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION BY
REQUIRING THE PETITIONER'S OFFICERS TO SUBMIT A REGISTRATION STATEMENT
ON BEHALF OF THE PETITIONER.  FOR THE REASONS SET FORTH IN HIS OPINION,
WHICH I JOIN, I BELIEVE THAT THE ACT DOES CONSTITUTE A VIOLATION OF THE
FIFTH AMENDMENT. 

FN1  ON REMAND FROM THIS COURT, THE BOARD EXPUNGED THE ENTIRE
TESTIMONY OF THE ALLEGED PERJURERS CROUCH, MATUSOW, AND JOHNSON. 
ALTHOUGH THE BOARD CONCLUDED, AND THE COURT OF APPEALS AGREED, THAT THE
REMAINING EVIDENCE WAS SUFFICIENT TO SUPPORT AN ORDER COMPELLING THE
PETITIONER TO REGISTER, THERE CAN BE NO DOUBT THAT THE GOVERNMENT'S
CASE WAS WEAKENED BY THE DELETION OF THE TESTIMONY OF THREE IMPORTANT
WITNESSES, AND IT IS THEREFORE ON THE BASIS OF THIS ALREADY ABBREVIATED
RECORD THAT THE NON-CONSTITUTIONAL ERRORS ALLEGED BY THE PETITIONER
MUST BE CONSIDERED. 

FN2  THE RELEVANT PORTION OF SEC. 14(A) READS AS FOLLOWS: 

"IF EITHER PARTY SHALL APPLY TO THE COURT FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE, AND SHALL SHOW TO THE SATISFACTION OF THE COURT
THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL, THE COURT MAY ORDER SUCH
ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE BOARD AND TO BE ADDUCED UPON
THE PROCEEDING IN SUCH MANNER AND UPON SUCH TERMS AND CONDITIONS AS TO
THE COURT MAY SEEM PROPER.  THE BOARD MAY MODIFY ITS FINDINGS AS TO THE
FACTS, BY REASON OF THE ADDITIONAL EVIDENCE SO TAKEN, AND IT SHALL FILE
SUCH MODIFIED OR NEW FINDINGS, WHICH, IF SUPPORTED BY THE PREPONDERANCE
OF THE EVIDENCE SHALL BE CONCLUSIVE, AND ITS RECOMMENDATIONS, IF ANY,
WITH RESPECT TO ACTION IN THE MATTER UNDER CONSIDERATION."  64 STAT.
1001-1002. 

FN3  RULE 23, PAR. 1(C) PROVIDES: 

"THE PETITION FOR WRIT OF CERTIORARI SHALL CONTAIN  ...  : 

     *         *         *         *         * 

"(C)  THE QUESTIONS PRESENTED FOR REVIEW, EXPRESSED IN THE TERMS AND
CIRCUMSTANCES OF THE CASE BUT WITHOUT UNNECESSARY DETAIL.  THE
STATEMENT OF A QUESTION PRESENTED WILL BE DEEMED TO INCLUDE EVERY
SUBSIDIARY QUESTION FAIRLY COMPRISED THEREIN.  ONLY THE QUESTIONS SET
FORTH IN THE PETITION OR FAIRLY COMPRISED THEREIN WILL BE CONSIDERED BY
THE COURT." 

FN4  IN VIEW OF THE COURT'S JUSTIFIED CONCERN OVER THE LENGTHY
HISTORY OF THIS LITIGATION, IT IS NOTEWORTHY, I THINK, THAT MANY OF THE
CASES TO WHICH I HAVE REFERRED ALSO INVOLVED PROTRACTED LITIGATIONS,
WHICH WERE LENGTHENED EVEN FURTHER BY THE COURT'S REFUSAL TO ADJUDICATE
THE CONSTITUTIONAL ISSUES ARGUED BY THE PARTIES.  HOWEVER, WHAT WAS
SAID IN THE ALMA MOTOR CASE IS EQUALLY APPLICABLE HERE:  "WE AGREE THAT
MUCH TIME HAS BEEN WASTED BY THE EARLIER FAILURE OF THE PARTIES TO
INDICATE, OR THE CIRCUIT COURT OF APPEALS OR THIS COURT TO SEE, THE
COURSE WHICH SHOULD HAVE BEEN FOLLOWED.  THIS, HOWEVER, IS NO REASON TO
CONTINUE NOW ON THE WRONG COURSE.  THE PRINCIPLE OF AVOIDING
CONSTITUTIONAL QUESTIONS IS ONE WHICH WAS CONCEIVED OUT OF
CONSIDERATIONS OF SOUND JUDICIAL ADMINISTRATION.  IT IS A TRADITIONAL
POLICY OF OUR COURTS."  329 U.S., AT 142. 

FN5  AFTER DISCUSSING THE DIFFERENT WAYS IN WHICH OTHER COURTS HAVE
ATTEMPTED TO AVOID APPLYING THE CONSOLIDATED EDISON RULE, THE COURT OF
APPEALS SAID:  "THERE IS MUCH FORCE TO THESE VARIOUS SUGGESTIONS, AND
PERHAPS WE MISCONSTRUE THE OPINION OF THE SUPREME COURT.  BUT WE ARE
BOUND BY THE OPINION AS WE READ IT."  102 U.S. APP. D.C., AT 404, 254
F.2D, AT 323. 

FN6  SEE LABOR BOARD V. CROMPTON-HIGHLAND MILLS, INC., 337 U.S. 217,
221; PITTSBURGH PLATE GLASS CO. V. LABOR BOARD, 313 U.S. 146, 155; COCA
COLA BOTTLING CO. OF ST. LOUIS V. LABOR BOARD, 195 F.2D 955, 956; LABOR
BOARD V. FAIRCHILD ENGINE & AIRPLANE CORP., 145 F.2D 214, 215; LABOR
BOARD V. NATIONAL LAUNDRY CO., 78 U.S. APP. D.C. 184, 185, 138 F.2D
589, 590; CALIFORNIA LUMBERMEN'S COUNCIL V. FEDERAL TRADE COMM'N, 115
F.2D 178, 183; SWIFT & CO. V. LABOR BOARD, 106 F.2D 87, 91; WILSON &
CO. V. LABOR BOARD, 103 F.2D 243, 245. 

FN7  EVEN THE COURT BELOW HAS NOT FOLLOWED ITS CONCEPTION OF THE
CONSOLIDATED EDISON RULE CONSISTENTLY.  THUS, ON APRIL 11, 1958, AFTER
THE CASE HAD BEEN REMANDED TO THE BOARD, THE COURT ORDERED THE
GOVERNMENT TO PRODUCE PRIOR STATEMENTS MADE BY WITNESS BUDENZ, EVEN
THOUGH THE PETITIONER HAD NOT MADE A MOTION PURSUANT TO SEC. 14(A) FOR
LEAVE TO ADDUCE ADDITIONAL EVIDENCE WHEN THE BOARD INITIALLY DENIED A
MOTION FOR PRODUCTION OF THE BUDENZ STATEMENTS.  IT IS DIFFICULT TO
UNDERSTAND WHY THE COURT DID NOT FOLLOW THE SAME PROCEDURE WITH REGARD
TO THE GITLOW MEMORANDA, ESPECIALLY IN VIEW OF THE FACT THAT PETITIONER
DID MAKE A MOTION FOR PRODUCTION, PURSUANT TO SEC. 14(A), THE SECOND
TIME THAT THE CASE WAS REMANDED TO THE BOARD.  SINCE THE CASE WAS BEING
REMANDED IN ANY EVENT, THE COURT'S REFUSAL TO GRANT THE SEC. 14(A)
MOTION SEEMS UNREASONABLE. 

FN8  THE COURT'S CONCLUSION RESULTED FROM THE GOVERNMENT'S
REPRESENTATION THAT BUDENZ HAD MADE NO STATEMENTS TO THE FBI CONCERNING
THE STAROBIN AND WEINER MATTERS.  HOWEVER, IN VIEW OF THE FOLLOWING
EXTRACT FROM THE RECORD, IT WOULD SEEM THAT THE COURT SHOULD HAVE
PRESSED THE INQUIRY FURTHER: 

Q. "PRIOR TO YOUR APPEARANCE BEFORE THE UN-AMERICAN ACTIVITIES
COMMITTEE, DID YOU TELL THE FBI ABOUT THE STAROBIN LETTER? 

"A.  THAT, I WOULDN'T RECALL. 

"Q.  YOU DON'T RECALL THAT.  YOU SPENT 100 HOURS WITH THE FBI, OR
MORE, YOU SAID, BEFORE YOU WENT THERE? 

"A.  YES, BUT THE FBI ASKED ME A GREAT NUMBER OF QUESTIONS, AND I
ANSWERED THEIR QUESTIONS. 

"Q. BUT THE MANUILSKY BUSINESS AND THE STAROBIN LETTER: 

"A.  I MAY HAVE TOLD THEM, COUNSELOR.  I SAY I DO NOT RECALL.  THE
THING IS THAT: 

"Q.  MAY I COMPLETE MY QUESTION, PLEASE? 

"A.  YES. 

"Q.  THE STAROBIN LETTER AND THE MANUILSKY INCIDENT WERE SUPPOSED TO
BE QUITE IMPORTANT IN THIS SETUP THAT YOU GOT UP AGAINST THE COMMUNIST
PARTY, WAS IT NOT?  YOU NOW SAY YOU DON'T RECALL WHETHER YOU GAVE IT TO
THE FBI? 

"A.  I DON'T RECALL THE TIME.  THE FBI ASKED ME A GREAT NUMBER OF
QUESTIONS.  UNDOUBTEDLY IF IT WERE IN MY BOOK, I MUST HAVE GIVEN IT TO
THE FBI.  THE POINT OF THE MATTER IS THAT THE FBI PARTICULARLY AT THAT
PERIOD, AND AS A MATTER OF FACT THIS HAS BEEN THE GENERAL PRACTICE,
ASKED ME QUESTIONS.  I DO NOT RUSH OUT AND VOLUNTEER A LOT OF
INFORMATION, AS A RULE.    "Q.  BUT DIDN'T YOU REGARD IT AS AN
IMPORTANT INCIDENT? 

"A.  OH, SURE IT WAS IMPORTANT. 

"Q.  AS A MATTER OF FACT, YOU DESCRIBED IT IN YOUR BOOK, 'THIS IS MY
STORY,' AS - AND I QUOTE YOUR LANGUAGE - 'THE MOST SENSATIONAL BY
PRODUCT OF THE SAN FRANCISCO CONFERENCE.'  DID YOU NOT SO DESCRIBE IT? 

"A.  THAT, I THINK, WAS CORRECT." 

FN9  IN THIS CONNECTION, IT SHOULD BE NOTED THAT IN THREE ADDITIONAL
PLACES IN ITS REPORT THE BOARD FOUND IT NECESSARY TO EXPLAIN SEEMING
INCONSISTENCIES IN BUDENZ' TESTIMONY.  IF THE PETITIONER COULD HAVE
DISCREDITED BUDENZ' TESTIMONY ON THE BASIS OF HIS PRIOR STATEMENTS, IT
IS POSSIBLE THAT THE BOARD WOULD HAVE RESOLVED THESE OTHER
DISCREPANCIES AGAINST BUDENZ AND THE GOVERNMENT. 

FN10  THE EXPANSIVE LENGTHS TO WHICH THE COURT HAS ON OCCASION GONE
IN CONSTRUING A STATUTE IN A MANNER DESIGNED TO AVOID CONSTITUTIONAL
CHALLENGES IS DEMONSTRATED BY THE DECISION IN SCALES V. UNITED STATES,
DECIDED THIS DAY, POST, P. 203.  CERTAINLY, THE INTERPRETATION OF THIS
ACT SUGGESTED BY THE PETITIONER WOULD REQUIRE FAR LESS LEGISLATIVE
REDRAFTING THAN THE COURT UNDERTOOK TO ACCOMPLISH IN SCALES. 

FN11  AT THIS POINT, IT SHOULD BE OBSERVED THAT THE VAST BULK OF THE
EVIDENCE INTRODUCED BY THE GOVERNMENT AT THE HEARING BEFORE THE BOARD
RELATED TO THE PARTY'S ACTIVITIES PRIOR TO ITS DISAFFILIATION FROM THE
COMMUNIST INTERNATIONAL IN 1940.  IN ORDER TO LINK THIS STALE EVIDENCE
TO THE PARTY'S CURRENT ACTIVITIES, WITH WHICH THE ACT IS CONCERNED, THE
BOARD INDULGED IN A PRESUMPTION OF CONTINUITY, WHEREBY IT REASONED THAT
SINCE THE PARTY WAS UNDER SOVIET CONTROL PRIOR TO 1940, AND SINCE THE
PARTY STILL ADHERES TO THE PRINCIPLES OF SOVIET COMMUNISM, IT MUST BE
PRESUMED THAT THE PARTY IS STILL CONTROLLED BY THE SOVIET UNION.  THE
VALIDITY OF SUCH A PRESUMPTION IS CERTAINLY DUBIOUS.   HOWEVER, IF THE
BOARD IS TO BE PERMITTED TO RELY UPON THIS PRESUMPTION, THE LEAST TO
WHICH THE PARTY IS ENTITLED IS THAT THE RECORD BE FREE FROM SERIOUS
PROCEDURAL ERRORS AND THAT THE FINDINGS UPON WHICH THE BOARD RESTS ITS
ORDER BE SUPPORTED BY SOME EVIDENCE. 

FN12  I CANNOT AGREE WITH THE THEORY OF MR. JUSTICE DOUGLAS THAT THE
NON-CONSTITUTIONAL ERRORS HEREIN DISCUSSED ARE LESS IMPORTANT THAN THE
MERE POSSIBILITY OF PERJURY WHICH CLOUDED THE RECORD IN 1956 AND WHICH
PROMPTED THE COURT TO REMAND THE CASE TO THE BOARD AT THAT TIME.  FOR
ALL WE KNOW, A CROSS-EXAMINATION OF GITLOW BASED ON HIS PRIOR
MEMORANDA, OR A FULL CROSS-EXAMINATION OF BUDENZ BASED ON HIS PRIOR
STATEMENTS TO THE FBI AND HIS TESTIMONY INCONSISTENT THEREWITH, MIGHT
HAVE DISCLOSED FURTHER POSSIBILITIES OF PERJURY.  NOR CAN I AGREE WITH
THE SUGGESTION THAT SINCE CONGRESS, IN THE COMMUNIST CONTROL ACT OF
1954, BRANDED THE COMMUNIST PARTY AS "AN INSTRUMENTALITY OF A
CONSPIRACY TO OVERTHROW THE GOVERNMENT OF THE UNITED STATES," 68 STAT.
775, THE BOARD'S HEARINGS AND FINDINGS ARE MERELY SUPERFLUOUS, AND THE
NON-CONSTITUTIONAL ERRORS COMMITTED BY THE BOARD AND THE COURT OF
APPEALS ARE THEREFORE UNIMPORTANT.  IN THE FIRST PLACE, THIS THEORY DID
NOT DISSUADE THE COURT FROM REMANDING TO THE BOARD IN 1956 BECAUSE OF
DEFECTS IN THE RECORD.  MOREOVER, THERE IS NOTHING IN THE LANGUAGE OR
LEGISLATIVE HISTORY OF THE COMMUNIST CONTROL ACT OF 1954 TO INDICATE
THAT CONGRESS INTENDED TO REPEAL THOSE PROVISIONS OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT WHICH CAREFULLY DELINEATE THE BOARD'S FUNCTIONS
AND DESCRIBE THE PROCEDURAL MECHANISM BY WHICH THE BOARD IS TO APPLY
THE ACT. 

MR. JUSTICE BLACK, DISSENTING. 

I DO NOT BELIEVE THAT IT CAN BE TOO OFTEN REPEATED THAT THE FREEDOMS
OF SPEECH, PRESS, PETITION AND ASSEMBLY GUARANTEED BY THE FIRST
AMENDMENT MUST BE ACCORDED TO THE IDEAS WE HATE OR SOONER OR LATER THEY
WILL BE DENIED TO THE IDEAS WE CHERISH.  THE FIRST BANNING OF AN
ASSOCIATION BECAUSE IT ADVOCATES HATED IDEAS - WHETHER THAT ASSOCIATION
BE CALLED A POLITICAL PARTY OR NOT - MARKS A FATEFUL MOMENT IN THE
HISTORY OF A FREE COUNTRY.  THAT MOMENT SEEMS TO HAVE ARRIVED FOR THIS
COUNTRY. 

THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 (FN1) HERE INVOLVED
DEFINES "COMMUNIST ACTION" ORGANIZATIONS AND REQUIRES THEM TO REGISTER
WITH THE ATTORNEY GENERAL GIVING MUCH INFORMATION OF EVERY KIND WITH
REGARD TO THEIR PROPERTY, INCOME, ACTIVITIES AND MEMBERS.  THE
COMMUNIST PARTY HAS BEEN ORDERED TO REGISTER UNDER THAT ACT BY THE
SUBVERSIVE ACTIVITIES CONTROL BOARD AND HAS CHALLENGED THE VALIDITY OF
THAT ORDER ON THE GROUND, AMONG OTHERS, THAT THE ACT IS
UNCONSTITUTIONAL IN THAT IT AMOUNTS TO A COMPLETE OUTLAWRY OF THE
COMMUNIST PARTY.  THE CONTENTION IS THAT THIS ACT, CONSIDERED AS A
WHOLE AND IN ITS RELATION TO EXISTING LAWS WHICH AFFECT MEMBERS OF THE
PARTY, IMPOSES SUCH OVERHANGING THREATS OF DISGRACE, HUMILIATION,
FINES, FORFEITURES AND LENGTHY IMPRISONMENTS UPON REGISTERED
ORGANIZATIONS AND THEIR MEMBERS, MOST OF WHICH BURDENS BECOME EFFECTIVE
AUTOMATICALLY UPON REGISTRATION, THAT IT WILL BE IMPOSSIBLE FOR THE
PARTY TO CONTINUE TO FUNCTION IF THE REGISTRATION ORDER IS UPHELD. 

THE COURT'S OPINION IS DEVOTED CHIEFLY TO THE TASK OF EXPLAINING WHY
IT WILL NOT DECIDE ANY OF THE SUBSTANTIAL ISSUES RAISED BY THIS ATTACK
UPON THE CONSTITUTIONALITY OF THE ACT AS IT IS ACTUALLY WRITTEN AND
WILL ACTUALLY OPERATE AND WHY IT MUST DECIDE THE CASE JUST AS THOUGH
NONE OF THESE OTHER BURDENS EXISTED AND WE WERE DEALING WITH AN ACT
THAT REQUIRED NOTHING MORE THAN THE REGISTRATION OF AN ORGANIZATION.  I
CANNOT AGREE TO DECIDE THE CASE ON ANY SUCH HYPOTHETICAL BASIS.  IF
REGISTRATION WERE THE ONLY ISSUE IN THE CASE, I WOULD AGREE AT ONCE
THAT CONGRESS HAS POWER TO REQUIRE EVERY "PERSON" ACTING AS AN AGENT OF
A FOREIGN PRINCIPAL TO FILE REGISTRATION STATEMENTS COMPREHENSIVELY
SHOWING HIS AGENCY ACTIVITIES AS IS REQUIRED, FOR EXAMPLE, BY THE
FOREIGN AGENTS REGISTRATION ACT.  (FN2)  THAT ACT REQUIRES THE
REGISTRATION OF ANY "PERSON" - INCLUDING AN INDIVIDUAL, PARTNERSHIP,
ASSOCIATION, CORPORATION, ORGANIZATION, OR OTHER COMBINATION OF
INDIVIDUALS - "WHO ACTS OR AGREES TO ACT, WITHIN THE UNITED STATES, AS
...  A PUBLIC-RELATIONS COUNSEL, PUBLICITY AGENT, INFORMATION-SERVICE
EMPLOYEE, SERVANT, AGENT, REPRESENTATIVE, OR ATTORNEY FOR A FOREIGN
PRINCIPAL ...  ."  (FN3)  REFERRING TO THAT ACT, I SAID IN VIERECK V.
UNITED STATES: 

"RESTING ON THE FUNDAMENTAL CONSTITUTIONAL PRINCIPLE THAT OUR PEOPLE,
ADEQUATELY INFORMED, MAY BE TRUSTED TO DISTINGUISH BETWEEN THE TRUE AND
THE FALSE, THE BILL IS INTENDED TO LABEL INFORMATION OF FOREIGN ORIGIN
SO THAT HEARERS AND READERS MAY NOT BE DECEIVED BY THE BELIEF THAT THE
INFORMATION COMES FROM A DISINTERESTED SOURCE.  SUCH LEGISLATION
IMPLEMENTS RATHER THAN DETRACTS FROM THE PRIZED FREEDOMS GUARANTEED BY
THE FIRST AMENDMENT."  (FN4) 

THE ACT BEFORE US NOW, HOWEVER, UNLIKE THE FOREIGN AGENTS
REGISTRATION ACT INVOLVED IN THE VIERECK CASE, IS NOT BASED ON THE
PRINCIPLE THAT "OUR PEOPLE, ADEQUATELY INFORMED, MAY BE TRUSTED TO
DISTINGUISH BETWEEN THE TRUE AND THE FALSE."  INSTEAD, THE PRESENT ACT,
LIKE MANY OTHER PIECES OF CURRENT LEGISLATION, IS BASED ON THE
PRECISELY CONTRARY PRINCIPLE THAT "OUR PEOPLE EVEN WHEN ADEQUATELY
INFORMED MAY NOT BE TRUSTED TO DISTINGUISH BETWEEN THE TRUE AND THE
FALSE."  IN THIS REGARD, THE PRINCIPLE UPON WHICH CONGRESS ACTED IN
PASSING THE SUBVERSIVE ACTIVITIES CONTROL ACT IS IDENTICAL TO THAT UPON
WHICH IT ACTED IN MAKING MEMBERSHIP IN THE COMMUNIST PARTY A CRIME IN
THE SMITH ACT, (FN5) A PROVISION UNDER WHICH THE COURT HAS TODAY
SUSTAINED THE CONVICTION AND IMPRISONMENT FOR SIX YEARS OF A PERSON FOR
BEING A MERE MEMBER OF THE COMMUNIST PARTY WITH KNOWLEDGE OF ITS
PURPOSES.  (FN6)  STATUTES BASED UPON SUCH A PRINCIPLE, WHICH REALLY
AMOUNTS TO NOTHING MORE THAN THE IDEA THAT THE GOVERNMENT MUST ACT AS A
PATERNAL GUARDIAN TO PROTECT AMERICAN VOTERS FROM HEARING PUBLIC
POLICIES DISCUSSED, DO NOT IMPLEMENT "THE PRIZED FREEDOMS GUARANTEED BY
THE FIRST AMENDMENT" - THEY ARE DESIGNED TO AND DO DIRECTLY DETRACT
FROM THOSE FREEDOMS. 

THE DIFFERENCE BETWEEN THE SUBVERSIVE ACTIVITIES CONTROL ACT AND THE
FOREIGN AGENTS REGISTRATION ACT IS STRIKINGLY ILLUSTRATED BY THE
REASONS CONGRESS HAS ITSELF GIVEN FOR THE ENACTMENT OF THE STATUTE NOW
BEFORE US.  WHEN VIERECK REGISTERED UNDER THE EARLIER AND GENUINE
REGISTRATION STATUTE, HE WAS NOT THEREBY BRANDED AS BEING ENGAGED IN AN
EVIL, DESPICABLE UNDERTAKING BENT ON DESTROYING THIS NATION.  BUT THAT
IS PRECISELY THE EFFECT OF THE PRESENT ACT.  REGISTRATION AS A
"COMMUNIST-ACTION ORGANIZATION" UNDER THE SUBVERSIVE ACTIVITIES CONTROL
ACT MEANS, ACCORDING TO THE EXPRESS PROVISIONS OF THE ACT, THAT THE
PARTY AND ITS MEMBERS WHO REGISTER ARE UNDER THE CONTROL OF A FOREIGN
DICTATORSHIP, (FN7) THAT THEY HAVE DEVISED "CLEVER AND RUTHLESS
ESPIONAGE AND SABOTAGE TACTICS," (FN8) AND THAT THEY ARE A PART OF A
"WORLD-WIDE REVOLUTIONARY MOVEMENT WHOSE PURPOSE IT IS, BY TREACHERY,
DECEIT, INFILTRATION  ...  TERRORISM, AND ANY OTHER MEANS DEEMED
NECESSARY, TO ESTABLISH A COMMUNIST TOTALITARIAN DICTATORSHIP IN THE
COUNTRIES THROUGHOUT THE WORLD."  (FN9)  A REGISTRANT ORGANIZATION IS
DECLARED, BY A FINDING OF CONGRESS, TO BE "AN ORGANIZATION NUMBERING
THOUSANDS OF ADHERENTS, RIGIDLY AND RUTHLESSLY DISCIPLINED," MERELY
AWAITING A CHANCE TO OVERTHROW THIS GOVERNMENT BY FORCE.  (FN10)  AND
THE NUMBERS OF SUCH AN ORGANIZATION ARE DECLARED BY THE ACT TO HAVE
"REPUDIATED THEIR ALLEGIANCE TO THE UNITED STATES, AND IN EFFECT
TRANSFERRED THEIR ALLEGIANCE TO THE FOREIGN COUNTRY IN WHICH IS VESTED
THE DIRECTION AND CONTROL OF THE WORLD COMMUNIST MOVEMENT."  (FN11) 

THIS DIFFERENCE STANDING ALONE WOULD BE SUFFICIENT TO ESTABLISH THE
ESSENTIAL DISSIMILARITY OF THE SUBVERSIVE ACTIVITIES CONTROL ACT FROM
GENUINE REGISTRATION STATUTES SUCH AS THE FOREIGN AGENTS REGISTRATION
ACT.  FOR THE NEED OF GOVERNMENT TO PROVIDE MEANS BY WHICH THE PEOPLE
CAN OBTAIN USEFUL INFORMATION - THE BASIS OF EVERY GENUINE REGISTRATION
STATUTE - CAN CERTAINLY BE ACCOMPLISHED WITHOUT RESORT TO OFFICIAL
LEGISLATIVE PRONOUNCEMENTS AS TO THE TREASONABLE NATURE OF THOSE
COMPELLED TO REGISTER.  BUT THIS DIFFERENCE DOES NOT STAND ALONE IN THE
CASE OF THE SUBVERSIVE ACTIVITIES CONTROL ACT - INDEED, THERE ARE SO
MANY OTHER DIFFERENCES OF SO MUCH GREATER MAGNITUDE THAT THE RECITALS
OF THE ACT BRANDING THOSE WHO REGISTER UNDER IT PALE ALMOST INTO
INSIGNIFICANCE. 

THE PLAN OF THE ACT IS TO MAKE IT IMPOSSIBLE FOR AN ORGANIZATION TO
CONTINUE TO FUNCTION ONCE A REGISTRATION ORDER IS ISSUED AGAINST IT.
TO THIS END, THE ACT FIRST PROVIDES CRUSHING PENALTIES TO INSURE
COMPLETE COMPLIANCE WITH THE DISCLOSURE REQUIREMENTS OF REGISTRATION. 
THUS, IF THE PARTY OR ITS MEMBERS FAIL TO REGISTER WITHIN THE TIME
REQUIRED BY THE ACT, OR IF THEY FAIL TO MAKE ANNUAL REPORTS AS
REQUIRED, OR TO KEEP RECORDS AS REQUIRED, EACH INDIVIDUAL GUILTY OF
SUCH FAILURE CAN BE PUNISHED BY A FINE OF $10,000, BY IMPRISONMENT FOR
FIVE YEARS, OR BOTH, FOR EACH OFFENSE (FN12) - AND EACH OFFENSE MEANS
"EACH DAY OF FAILURE TO REGISTER" (FN13) OR "EACH LISTING OF THE NAME
OR ADDRESS OF ANY ONE INDIVIDUAL" (FN14) EITHER BY THE ORGANIZATION OR
BY AN INDIVIDUAL.  THUS, FOR A DELAY OF THIRTY DAYS IN FILING REQUIRED
REPORTS, A FINE OF $300,000 AND IMPRISONMENT FOR 150 YEARS COULD BE
IMPOSED BY A TRIAL JUDGE. 

HAVING THUS MADE IT MANDATORY THAT COMMUNIST ORGANIZATIONS AND
INDIVIDUAL COMMUNISTS MAKE A FULL DISCLOSURE OF THEIR IDENTITIES AND
ACTIVITIES, THE ACT THEN PROCEEDS TO HEAP BURDEN AFTER BURDEN UPON
THOSE SO EXPOSED.  CERTAIN TAX DEDUCTIONS ALLOWED TO OTHERS ARE DENIED
TO A REGISTERED ORGANIZATION.  (FN15)  MAIL MATTER MUST BE STAMPED
BEFORE THE ORGANIZATION SENDS IT OUT TO SHOW THAT IT WAS DISSEMINATED
BY A "COMMUNIST ACTION" ORGANIZATION, (FN16) WITH ALL THE TREASONABLE
CONNOTATIONS GIVEN THAT TERM BY THE RECITALS OF "FACT" IN THE ACT. 
MEMBERS OF A REGISTERED ORGANIZATION CANNOT HOLD CERTAIN JOBS WITH THE
GOVERNMENT, OR ANY JOBS WITH PRIVATE BUSINESSES ENGAGED IN DOING
CERTAIN WORK FOR THE GOVERNMENT.  (FN17)  MEMBERS CANNOT USE OR ATTEMPT
TO USE A PASSPORT AND CANNOT EVEN MAKE APPLICATION FOR A PASSPORT
WITHOUT BEING SUBJECT TO A PENALTY OF FIVE YEARS IN THE PENITENTIARY. 
(FN18)  THE ACT THUS MAKES IT EXTREMELY DIFFICULT FOR A MEMBER OF THE
COMMUNIST PARTY TO LIVE IN THIS COUNTRY AND, AT THE SAME TIME, MAKES IT
A CRIME FOR HIM TO TRY TO GET A PASSPORT TO GET OUT. 

IN ADDITION TO THESE BURDENS IMPOSED DIRECTLY BY THE ACT ITSELF, THE
REGISTRATION REQUIREMENT MUST ALSO BE CONSIDERED IN THE CONTEXT OF THE
OTHER LAWS NOW EXISTING WHICH AFFECT THE COMMUNIST PARTY.  THE ACT
REQUIRES THAT THE INFORMATION OBTAINED UPON REGISTRATION BE GIVEN WIDE
PUBLICITY (FN19) THUS INSURING THAT THOSE IDENTIFIED AS MEMBERS OF THE
PARTY WILL BE SUBJECTED TO ALL THE CIVIL DISABILITIES, (FN20) CRIMINAL
PROSECUTIONS (FN21) AND PUBLIC HARRASSMENTS (FN22) THAT HAVE BECOME
COMMON IN RECENT YEARS.  I AGREE WITH MR. JUSTICE DOUGLAS THAT THIS
ASPECT OF THE ACT IS ALONE SUFFICIENT TO ESTABLISH ITS INVALIDITY UNDER
THE SELF-INCRIMINATION PROVISION OF THE FIFTH AMENDMENT.  BUT I THINK
THE INTERRELATIONSHIP BETWEEN THE PRESENT ACT AND THOSE OTHER LAWS GOES
DEEPER THAN THAT, FOR I THINK THAT INTERRELATIONSHIP ESTABLISHES ALL
BUT CONCLUSIVELY THAT THE PRESENT ACT CANNOT BE UPHELD AS A MERE
REGISTRATION STATUTE.  THE INFORMATION ELICITED BY THE ACT MUST BE
CONSIDERED, NOT, AS IN THE VIERECK CASE, AN AID TO THE EXERCISE OF
INDIVIDUAL JUDGMENT BY THE PEOPLE, BUT RATHER A PART OF A PATTERN OF
SUPPRESSION BY THE GOVERNMENT, FOR THAT IS CERTAINLY THE INEVITABLE
EFFECT OF ANY SYSTEM THAT REQUIRES REGISTRATION ON THE ONE HAND AND
IMPOSES PAINS AND PENALTIES UPON THOSE REGISTERING ON THE OTHER.    ALL
OF THESE ENORMOUS BURDENS, WHICH ARE NECESSARILY IMPOSED UPON THE PARTY
AND ITS MEMBERS BY THE ACT OF REGISTRATION, ARE DISMISSED BY THE COURT
ON THE BASIS OF AN ALLEGED CONFLICT WITH THE COURT-CREATED RULE THAT
CONSTITUTIONAL QUESTIONS SHOULD BE AVOIDED WHENEVER POSSIBLE.  THUS,
THE COURT ENGAGES IN EXTENDED DISCUSSIONS AS TO WHETHER THE PEOPLE
INVOLVED WILL EVER WANT TO DO THE THINGS THE ACT SAYS THEY CANNOT DO
AND WHETHER THEY WILL EVER OBJECT TO DOING THE THINGS THE ACT SAYS THEY
MUST DO, SUGGESTING, AMONG OTHER THINGS, THAT THE MEMBERS OF THE
COMMUNIST PARTY MAY NEVER OBJECT TO PROVIDING THE EVIDENCE NEEDED TO
SEND THEM TO PRISON FOR VIOLATING THE SMITH ACT; THAT THEY MAY NEVER
PROTEST BECAUSE THEY ARE FORCED TO GIVE UP THE TAX DEDUCTIONS THAT
OTHER PEOPLE RECEIVE; THAT THEY MAY BE WILLING TO STAMP ALL THE PARTY'S
MAIL AS COMING FROM AN EVIL ORGANIZATION; THAT THEY MAY NEVER WANT TO
HOLD THE JOBS FROM WHICH THE ACT DISQUALIFIES THEM; AND THAT THEY MAY
NEVER WANT TO GET A PASSPORT TO GET OUT OF THE COUNTRY.  ON THE BASIS
OF ALL THESE "UNCERTAINTIES" THE COURT SEEMS TO CONSIDER ITS HANDS TIED
BECAUSE, IT SAYS, THERE ARE AS YET ONLY POTENTIAL IMPAIRMENTS OF
CONSTITUTIONAL RIGHTS.  IN ITS VIEW, THERE IS NO "JUSTICIABLE" ISSUE AT
ALL BETWEEN THE UNITED STATES AND THE COMMUNIST PARTY EXCEPT THE BARE
REQUIREMENT OF REGISTRATION. 

IN THE CONTEXT OF THIS CASE, I CAN FIND NO JUSTIFICATION FOR THE
COURT'S REFUSAL TO PASS UPON THE SERIOUS CONSTITUTIONAL QUESTIONS
RAISED.  THE COURT OF APPEALS MET ITS RESPONSIBILITY BY DECIDING THE
QUESTIONS.  THE GOVERNMENT HAS NOT ASKED THAT THE COURT REFRAIN FROM
GIVING A FULL DECISION ON THESE IMPORTANT MATTERS.  ASSUMING THAT THE
ACT IS WHOLLY VALID ASIDE FROM REGISTRATION AND THAT CONGRESS DOES HAVE
POWER TO OUTLAW GROUPS ADVOCATING DANGEROUS IDEAS, IT SEEMS TO ME
UNFAIR TO CONGRESS FOR THIS COURT TO REFUSE TO DECIDE WHETHER ITS ACT
CAN BE FULLY ENFORCED.  AND ASSUMING THAT THE ACT IS NOT WHOLLY VALID
BECAUSE OF SOME LIMITATION UPON THAT POWER, IT SEEMS TO ME THAT WE
SHOULD SAY SO NOW.  BY REFUSING TO DO SO, THE COURT IN EFFECT ALLOWS
THIS SERIOUS QUESTION TO BE DECIDED BY DEFAULT.  FOR THE PARTY CAN NO
MORE CONTINUE TO FUNCTION WITH ALL OF THESE TREMENDOUS BURDENS OF
UNDETERMINED CONSTITUTIONAL VALIDITY OVERHANGING IT AND ITS MEMBERS
THAN IT COULD IF THE BURDENS WERE CONSIDERED AND UPHELD.  THE ONLY
SENSE IN WHICH THE COURT HAS AVOIDED A CONSTITUTIONAL ISSUE IS BY
PERMITTING THE DESTRUCTION OF A GROUP SEEKING TO RAISE THE ISSUE OF THE
CONSTITUTIONALITY OF ITS DESTRUCTION.  (FN23) 

THIS WHOLE ACT, WITH ITS PAINS AND PENALTIES, EMBARKS THIS COUNTRY,
FOR THE FIRST TIME, ON THE DANGEROUS ADVENTURE OF OUTLAWING GROUPS THAT
PREACH DOCTRINES NEARLY ALL AMERICANS DETEST.  WHEN THE PRACTICE OF
OUTLAWING PARTIES AND VARIOUS PUBLIC GROUPS BEGINS, NO ONE CAN SAY
WHERE IT WILL END.  IN MOST COUNTRIES SUCH A PRACTICE ONCE BEGUN ENDS
WITH A ONE-PARTY GOVERNMENT.  THERE IS SOMETHING OF TRAGIC IRONY IN THE
FACT THAT THIS ACT, EXPRESSLY DESIGNED TO PROTECT THIS NATION FROM
BECOMING A "TOTALITARIAN DICTATORSHIP" WITH "A SINGLE POLITICAL PARTY,"
HAS ADOPTED TO ACHIEVE ITS LAUDABLE PURPOSE THE POLICY OF OUTLAWING A
PARTY - A POLICY INDISPENSABLE TO TOTALITARIAN DICTATORSHIPS.  I THINK
WE SHOULD MEET AND DECIDE THIS WHOLE QUESTION NOW IN THE ADMINISTRATION
OF A SOUND JUDICIAL POLICY THAT CARRIES OUT OUR RESPONSIBILITIES BOTH
TO CONGRESS AND TO THE AMERICAN PEOPLE. 

IN MY JUDGMENT, THE ACT HERE UNDER CONSIDERATION IS UNCONSTITUTIONAL
ON AT LEAST THREE GROUNDS IN ADDITION TO ITS DIRECT CONFLICT WITH THE
SELF-INCRIMINATION PROVISIONS OF THE FIFTH AMENDMENT.  IT IS, IN THE
FIRST INSTANCE, A CLASSICAL BILL OF ATTAINDER WHICH OUR CONSTITUTION IN
TWO PLACES PROHIBITS, FOR IT IS A LEGISLATIVE ACT THAT INFLICTS PAINS,
PENALTIES AND PUNISHMENTS IN A NUMBER OF WAYS WITHOUT A JUDICIAL
TRIAL.  (FN24)  THE LEGISLATIVE FACT-FINDINGS AS TO COMMUNIST
ACTIVITIES, WHICH THE COURT - DESPITE THE CONSTITUTIONAL COMMAND FOR
TRIAL OF SUCH FACTS BY A COURT AND JURY - ACCEPTS AS FACTS, SUPPLY
PRACTICALLY ALL OF THE PROOF NEEDED TO BRING THE COMMUNIST PARTY WITHIN
THE PROSCRIPTIONS OF THE ACT.  THE ACT POINTS UNERRINGLY TO THE MEMBERS
OF THAT PARTY AS GUILTY PEOPLE WHO MUST BE PENALIZED AS THE ACT
PROVIDES.  AT THE SAME TIME, THESE LEGISLATIVE FACT-FINDINGS FALL
LITTLE SHORT OF BEING ADEQUATE IN THEMSELVES TO JUSTIFY A FINDING OF
GUILT AGAINST ANY PERSON WHO CAN BE IDENTIFIED, HOWEVER FAINTLY, BY ANY
INFORMER, AS EVER HAVING BEEN A MEMBER OF THE COMMUNIST PARTY.  MOST OF
WHATEVER IS LACKING IN THE LEGISLATIVE FACT-FINDINGS IS LATER SUPPLIED
BY ADMINISTRATIVE FACT-FINDINGS OF AN AGENCY WHICH IS NOT A COURT,
WHICH IS NOT MANNED BY INDEPENDENT JUDGES, AND WHICH DOES NOT HAVE TO
OBSERVE THE CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND OTHER TRIAL
SAFEGUARDS UNEQUIVOCALLY COMMANDED BY THE BILL OF RIGHTS.  YET, AFTER
THIS AGENCY HAS MADE ITS FINDINGS AND ITS CONCLUSIONS, NEITHER ITS
FINDINGS OF FACT NOR THE FINDINGS OF FACT OF THE LEGISLATIVE BODY CAN
SUBSEQUENTLY BE CHALLENGED IN COURT BY ANY INDIVIDUAL WHO MAY LATER BE
BROUGHT UP ON A CHARGE THAT HE FAILED TO REGISTER AS REQUIRED BY THE
ACT AND THE BOARD.  THE ACT THUS NOT ONLY IS A LEGISLATIVE BILL OF
ATTAINDER BUT ALSO VIOLATES DUE PROCESS BY SHORTCUTTING PRACTICALLY ALL
OF THE BILL OF RIGHTS, LEAVING NO HOPE FOR ANYONE ENTANGLED IN THIS
LEGISLATIVE-ADMINISTRATIVE WEB EXCEPT WHAT HAS PROVED IN THIS CASE TO
BE ONE OF THE MOST TRUNCATED JUDICIAL REVIEWS THAT THE HISTORY OF THIS
COURT CAN AFFORD.  (FN25) 

I THINK ALSO THAT THIS OUTLAWRY OF THE COMMUNIST PARTY AND
IMPRISONMENT OF ITS MEMBERS VIOLATE THE FIRST AMENDMENT.  THE QUESTION
UNDER THAT AMENDMENT IS WHETHER CONGRESS HAS POWER TO OUTLAW AN
ASSOCIATION, GROUP OR PARTY EITHER ON THE GROUND THAT IT ADVOCATES A
POLICY OF VIOLENT OVERTHROW OF EXISTING GOVERNMENT AT SOME TIME IN THE
DISTANT FUTURE OR ON THE GROUND THAT IT IS IDEOLOGICALLY SUBSERVIENT TO
SOME FOREIGN COUNTRY.  IN MY JUDGMENT, NEITHER OF THESE FACTORS
JUSTIFIES AN INVASION OF RIGHTS PROTECTED BY THE FIRST AMENDMENT.  TALK
ABOUT THE DESIRABILITY OF REVOLUTION HAS A LONG AND HONORABLE HISTORY,
NOT ONLY IN OTHER PARTS OF THE WORLD, BUT ALSO IN OUR OWN COUNTRY. 
THIS KIND OF TALK, LIKE ANY OTHER, CAN BE USED AT THE WRONG TIME AND
FOR THE WRONG PURPOSE.  BUT, UNDER OUR SYSTEM OF GOVERNMENT, THE REMEDY
FOR THIS DANGER MUST BE THE SAME REMEDY THAT IS APPLIED TO THE DANGER
THAT COMES FROM ANY OTHER ERRONEOUS TALK - EDUCATION AND CONTRARY
ARGUMENT.  (FN26)  IF THAT REMEDY IS NOT SUFFICIENT, THE ONLY MEANING
OF FREE SPEECH MUST BE THAT THE REVOLUTIONARY IDEAS WILL BE ALLOWED TO
PREVAIL.  (FN27) 

THIS CONCLUSION IS NOT AFFECTED BY THE FACT THAT THOSE ADVOCATING A
POLICY OF REVOLUTION ARE IN SYMPATHY WITH A FOREIGN GOVERNMENT.  IF
THERE IS ONE THING CERTAIN ABOUT THE FIRST AMENDMENT IT IS THAT THIS
AMENDMENT WAS DESIGNED TO GUARANTEE THE FREEST INTERCHANGE OF IDEAS
ABOUT ALL PUBLIC MATTERS AND THAT, OF COURSE, MEANS THE INTERCHANGE OF
ALL IDEAS, HOWEVER SUCH IDEAS MAY BE VIEWED IN OTHER COUNTRIES AND
WHATEVER CHANGE IN THE EXISTING STRUCTURE OF GOVERNMENT IT MAY BE HOPED
THAT THESE IDEAS WILL BRING ABOUT.  NOW, WHEN THIS COUNTRY IS TRYING TO
SPREAD THE HIGH IDEALS OF DEMOCRACY ALL OVER THE WORLD - IDEALS THAT
ARE REVOLUTIONARY IN MANY COUNTRIES - SEEMS TO BE A PARTICULARLY
INAPPROPRIATE TIME TO STIFLE FIRST AMENDMENT FREEDOMS IN THIS COUNTRY. 
THE SAME ARGUMENTS THAT ARE USED TO JUSTIFY AN OUTLAWRY OF COMMUNIST
IDEAS HERE COULD BE USED TO JUSTIFY AN OUTLAWRY OF THE IDEAS OF
DEMOCRACY IN OTHER COUNTRIES. 

THE FREEDOM TO ADVOCATE IDEAS ABOUT PUBLIC MATTERS THROUGH
ASSOCIATIONS OF THE NATURE OF POLITICAL PARTIES AND SOCIETIES WAS
CONTEMPLATED AND PROTECTED BY THE FIRST AMENDMENT.  THE EXISTENCE OF
SUCH GROUPS IS NOW, AND FOR CENTURIES HAS BEEN, A NECESSARY PART OF ANY
EFFECTIVE PROMULGATION OF BELIEFS ABOUT GOVERNMENTAL POLICIES.  AND THE
DESTRUCTION OF SUCH GROUPS IS NOW AND ALWAYS HAS BEEN ONE OF THE FIRST
STEPS TOTALITARIAN GOVERNMENTS TAKE.  WITHIN RECENT MONTHS WE HAVE
LEARNED OF SUCH PRACTICES IN OTHER COUNTRIES.  ONLY A FEW WEEKS AGO AN
EXECUTIVE EDICT OUTLAWING ALL PARTIES, GROUPS AND ASSOCIATIONS ALL THE
WAY DOWN THROUGH ROTARY CLUBS WAS ISSUED IN A COUNTRY WHERE THE
GOVERNMENT IS LARGELY IN THE HANDS OF A SINGLE MAN.  INDEED, OUR OWN
ANCESTORS WERE NOT UNFAMILIAR WITH THIS PRACTICE.  MEN AND WOMEN
BELONGING TO DISSENTING RELIGIOUS, POLITICAL OR SOCIAL GROUPS IN
ENGLAND BEFORE THE COLONIZATION OF THIS COUNTRY WERE SOMETIMES
IMPRISONED, MUTILATED, DEGRADED BY HUMILIATING PILLORIES, EXILED AND
EVEN KILLED FOR THEIR VIEWS. 

A TYPICAL EXAMPLE OF THE TYPE OF LEGISLATION UNDER WHICH THIS SORT OF
PERSECUTION WAS CARRIED ON IS PROVIDED BY A STATUTE ENACTED IN 1593 TO
DESTROY DISSENTING RELIGIOUS SECTS AND FORCE ALL THE PEOPLE OF ENGLAND
TO BECOME REGULAR ATTENDANTS AT THE ESTABLISHED CHURCH.  (FN28)  THE
BASIC PREMISE UPON WHICH ITS COMMANDS RESTED WAS NOT AT ALL UNLIKE THAT
UPON WHICH THE ACT HERE PROCEEDS: 

"FOR THE BETTER DISCOVERING AND AVOIDING OF SUCH TRAITEROUS AND MOST
DANGEROUS CONSPIRACIES AND ATTEMPTS, AS ARE DAILY DEVISED AND PRACTISED
AGAINST OUR MOST GRACIOUS SOVEREIGN LADY THE QUEEN'S MAJESTY AND THE
HAPPY ESTATE OF THIS COMMON WEAL, BY SUNDRY WICKED AND SEDITIOUS
PERSONS, WHO TERMING THEMSELVES CATHOLICKS, AND BEING INDEED SPIES AND
INTELLIGENCERS, NOT ONLY FOR HER MAJESTY'S FOREIGN ENEMIES, BUT ALSO
FOR REBELLIOUS AND TRAITEROUS SUBJECTS BORN WITHIN HER HIGHNESS REALMS
AND DOMINIONS, AND HIDING THEIR MOST DETESTABLE AND DEVILISH PURPOSES
UNDER A FALSE PRETEXT OF RELIGION AND CONSCIENCE, DO SECRETLY WANDER
AND SHIFT FROM PLACE TO PLACE WITHIN THIS REALM, TO CORRUPT AND SEDUCE
HER MAJESTY'S SUBJECTS, AND TO STIR THEM TO SEDITION AND REBELLION  ...
." 

THESE ATTAINTED CATHOLICS WERE NOT PERMITTED TO GO "ABOVE FIVE MILES"
FROM THEIR HOMES.  FOR VIOLATION OF THIS COMMAND THEY COULD BE
SENTENCED TO PRISON AND HAVE ALL THEIR GOODS, LANDS AND OTHER
POSSESSIONS FORFEITED "TO THE QUEEN'S MAJESTY."  ONE HAS ONLY TO READ
THIS STATUTE TO SEE HOW THOROUGHGOING GOVERNMENT CAN BE IN MAKING LIFE
MISERABLE FOR GROUPS WHOSE BELIEFS HAVE FALLEN INTO DISFAVOR. 

THAT STATUTE ALSO HAS PECULIAR RELEVANCE TO THE CONSIDERATION OF THE
SUBVERSIVE ACTIVITIES CONTROL ACT BECAUSE IT TOO USED DISCLOSURE AS A
LEVER TO SECURE EFFECTIVE ENFORCEMENT OF ITS PROVISIONS.  THUS, ONE

"AND BE IT FURTHER ENACTED AND ORDAINED BY THE AUTHORITY AFORESAID,
THAT IF ANY PERSON WHICH SHALL BE SUSPECTED TO BE A JESUIT, SEMINARY OR
MASSING PRIEST, BEING EXAMINED BY ANY PERSON HAVING LAWFUL AUTHORITY IN
THAT BEHALF TO EXAMINE SUCH PERSON WHICH SHALL BE SO SUSPECTED, SHALL
REFUSE TO ANSWER DIRECTLY AND TRULY WHETHER HE BE A JESUIT, OR A
SEMINARY OR MASSING PRIEST, AS IS AFORESAID, EVERY SUCH PERSON SO
REFUSING TO ANSWER SHALL, FOR HIS DISOBEDIENCE AND CONTEMPT IN THAT
BEHALF, BE COMMITTED TO PRISON BY SUCH AS SHALL EXAMINE HIM AS IS
AFORESAID, AND THEREUPON SHALL REMAIN AND CONTINUE IN PRISON WITHOUT
BAIL OR MAINPRISE, UNTIL HE SHALL MAKE DIRECT AND TRUE ANSWER TO THE
SAID QUESTIONS WHEREUPON HE SHALL BE SO EXAMINED." 

ONE CANNOT HELP BUT WONDER WHETHER THIS COURT, WERE IT CALLED UPON TO
CONSIDER THE CONSTITUTIONALITY OF A PROVISION OF THAT KIND IN THIS
COUNTRY, WOULD PASS IT OFF AS INVOLVING NOTHING MORE THAN POTENTIAL
IMPAIRMENTS OF RELIGIOUS FREEDOMS AND A RIGHT TO TRAVEL WHICH THE
ATTAINTED PERSONS MIGHT NEVER WANT TO EXERCISE. 

THERE WERE MANY OTHER STATUTES OF THIS KIND PASSED IN ENGLAND BEFORE
OUR REVOLUTIONARY WAR.  (FN29)  BY NO MEANS ALL OF THEM WERE AIMED AT
THE CATHOLICS.  INDEED, DURING THE TIMES WHEN THE CATHOLICS WERE
THEMSELVES IN POWER, ALMOST IDENTICAL REPRESSIVE MEASURES WERE ADOPTED
IN AN ATTEMPT TO CURB THE RISE OF PROTESTANTISM.  (FN30)  AND THE
PERSECUTION OF PURITANS IN ENGLAND, DRAMATIZED BY SOME OF THE MOST
FAMOUS WRITERS OF THE TIME, IS A STORY THAT IS, I HOPE, FAMILIAR TO
MOST AMERICANS.  (FN31)  IT IS A MATTER OF HISTORY THAT NOT ONE OF
THESE LAWS ACHIEVED ITS PURPOSE.  MANY MEN DIED, SUFFERED AND WERE
DRIVEN FROM THEIR OWN COUNTRY.  AND, IN A SENSE, IT MIGHT BE SAID THAT
OUR OWN COUNTRY PROFITED FROM THESE LAWS BECAUSE IT WAS LARGELY FOUNDED
BY REFUGEES FROM ENGLISH OPPRESSION.  BUT ENGLAND ITSELF GAINED LITTLE
IF ANY PROFIT FROM ITS POLICIES OF REPRESSION.  THE OUTLAWED GROUPS
WERE NOT DESTROYED.  MANY PEOPLE HAVE THOUGHT THAT THESE REPRESSIVE
MEASURES WERE MORE EFFECTIVE TO BRING ABOUT REVOLUTIONS THAN TO STOP
THEM.  BE THAT AS IT MAY, IT CANNOT BE DENIED THAT THE MOST TRANQUIL
PERIOD OF ENGLISH HISTORY, FROM AN INTERNAL STANDPOINT, HAS BEEN THE
PERIOD SINCE ENGLAND ABANDONED THESE PRACTICES OF TRYING TO INCULCATE
BELIEF BY OATHS AND FORCE. 

EVEN AFTER THE AMERICAN REVOLUTION, ENGLAND CONTINUED TO PASS
STATUTES OUTLAWING GROUPS AND PUNISHING THEIR MEMBERS.  ONE THAT IS OF
PARTICULAR INTEREST HERE BECAUSE OF THE MANY SIMILARITIES BETWEEN IT
AND THE ACT INVOLVED IN THIS CASE WAS PASSED IN 1799 UNDER THE TITLE
"AN ACT FOR THE MORE EFFECTUAL SUPPRESSION OF SOCIETIES ESTABLISHED FOR
SEDITIOUS AND TREASONABLE PURPOSES; AND FOR BETTER PREVENTING
TREASONABLE AND SEDITIOUS PRACTICES."  (FN32)  THE PREMISE UPON WHICH
THIS ACT WAS PASSED WAS ALSO SIMILAR TO THAT USED HERE - "A TRAITOROUS
CONSPIRACY HAS LONG BEEN CARRIED ON, IN CONJUNCTION WITH THE PERSONS
FROM TIME TO TIME EXERCISING THE POWERS OF GOVERNMENT IN FRANCE, TO
OVERTURN THE LAWS, CONSTITUTION, AND GOVERNMENT, AND EVERY EXISTING
ESTABLISHMENT, CIVIL AND ECCLESIASTICAL, BOTH IN GREAT BRITAIN AND
IRELAND  ...  ."  THE ACT BROADLY PROVIDED FOR THE SUPPRESSION AND
PROHIBITION "AS UNLAWFUL COMBINATIONS AND CONFEDERACIES" OF ALL SUCH
SOCIETIES, "PARTICULARLY  ...  SOCIETIES OF UNITED ENGLISHMEN, UNITED
SCOTSMEN, UNITED BRITONS, UNITED IRISHMEN, AND THE LONDON CORRESPONDING
SOCIETY  ...  ."  THIS 1799 ENGLISH ACT, LIKE THE SUBVERSIVE ACTIVITIES
CONTROL ACT HERE, COMPREHENSIVELY PROVIDED FOR FINES, FORFEITURES,
PENALTIES AND IMPRISONMENTS.  IT WENT ON TO OUTLAW PLACES WHERE DEBATES
COULD TAKE PLACE OR LECTURES BE GIVEN OR BOOKS BE GATHERED AND READ
UNLESS, UNDER VERY RESTRICTIVE STANDARDS, LICENSES HAD BEEN GRANTED BY
JUSTICES OF THE PEACE.  GREAT EMPHASIS WAS LAID UPON THE FACT THAT
UNLICENSED GATHERINGS SHOULD BE TREATED AS NUISANCES AND DISORDERLY
HOUSES.  FOLLOWING THE COURSE THAT SUCH REPRESSIVE MEASURES ALWAYS
MUST, AND INDEED PRECISELY THE COURSE THAT IS HERE BEING FOLLOWED BY
OUR OWN GOVERNMENT WITH RESPECT TO THE COMMUNIST PARTY, (FN33) THE
ENGLISH ACT PLACED PRINTING PRESSES, TYPE AND EVERYTHING ELSE USEFUL
FOR PUBLISHING DISCUSSION OF PUBLIC MATTERS UNDER STRICT REGULATIONS. 

THE PARLIAMENTARY DEBATES UNDERLYING THE ENACTMENT OF THIS 1799
ENGLISH STATUTE INDICATE PLAINLY THE CLOSE PARALLEL BETWEEN IT AND THE
ACT HERE UNDER CONSIDERATION.  THE CHIEF FEAR OF THE ENGLISH RULERS
THAT BROUGHT ON THE 1799 ACT WAS THAT THE PEOPLE OF ENGLAND WOULD BE
SEDUCED AWAY FROM THEIR LOYALTY TO THEIR GOVERNMENT IF SOCIETIES WERE
LEFT FREE TO DISCUSS PUBLIC MATTERS AND IF THE COMMON PEOPLE WERE LEFT
FREE TO READ AND HEAR ARGUMENTS.  WILLIAM PITT, THE YOUNGER, IN
OFFERING THE BILL WHICH PROVIDED THE BASIS FOR THE ACT, EXPRESSED HIS
FEAR THAT DEBATING SOCIETIES AND OTHER SUCH MANIFESTATIONS OF LIBERTY
OF PRESS AND SPEECH MIGHT CALL "THE ATTENTION OF THE LOWER ORDERS OF
THE PEOPLE TO OBJECTS OF DISCUSSION OF THE MOST MISCHIEVOUS TENDENCY,
OBJECTS WHICH ARE NOT CALCULATED FOR THEIR UNDERSTANDINGS, AND WHICH
ARE OF ALL OTHERS THE MOST LIABLE TO BE ATTENDED WITH DREADFUL
EFFECTS."  (FN34)  HE THOUGHT THESE "DREADFUL EFFECTS" COULD BE
AVERTED, IN LARGE PART, BY MAKING INDIVIDUAL AUTHORS SIGN EVERYTHING
THEY WROTE.  BUT HE THEN WENT ON TO URGE THAT "IN ORDER TO MAKE THE
MEASURE EFFECTUAL, AND PREVENT THE PRESS FROM BECOMING AN ENGINE OF
CORRUPTION AND INNOVATION IN THE HANDS OF FACTIONS WHO ARE READY TO
CIRCULATE CHEAP PUBLICATIONS, ADAPTED TO INFLAME AND PERVERT THE PUBLIC
MIND, IT WILL BE NECESSARY TO KEEP A GENERAL REGISTER, NOT ONLY OF THE
PRESSES USED BY PRINTERS, BUT OF THOSE IN THE POSSESSION OF PRIVATE
PERSONS."  (FN35) ALL OF THIS, MR. PITT EXPLAINED, WAS NECESSARY IN
ORDER TO RENDER "MORE EFFECTUAL" AN ACT PASSED AT THE PREVIOUS SESSION
OF PARLIAMENT ENTITLED "AN ACT TO EMPOWER HIS MAJESTY TO SECURE AND
DETAIN SUCH PERSONS AS HIS MAJESTY SHALL SUSPECT ARE CONSPIRING AGAINST
HIS PERSON AND GOVERNMENT."  (FN36) 

THE DEBATES ON THE ENGLISH STATUTE ALSO SHOW THE TRUE NATURE OF THE
"REVOLUTIONARY" PRINCIPLES ADVOCATED BY THE VARIOUS SOCIETIES NAMED
WHICH WERE BEING USED TO JUSTIFY THEIR OUTLAWRY.  THESE PRINCIPLES WERE
CHIEFLY PARLIAMENTARY REFORM PROVIDING FOR ANNUAL SESSIONS OF
PARLIAMENT, UNIVERSAL SUFFRAGE AND FAIR PARLIAMENTARY REPRESENTATION,
AND REPEAL OF THE RIGHT OF THE KING TO VETO MEASURES PASSED BY
PARLIAMENT.  (FN37)  IT IS, OF COURSE, TRUE THAT CONGRESS HAS NO POWER
TO OUTLAW POLITICAL PARTIES ADVOCATING SUCH MEASURES IN THIS COUNTRY. 
BUT I WONDER HOW THIS COURT COULD EVER REACH THE QUESTION IN VIEW OF
ITS HOLDING TODAY.  AND IF THE COURT IS, AS IT HOLDS, TRULY BOUND BY
LEGISLATIVE FINDINGS AS TO THE NATURE OF POLITICAL PARTIES AND THEIR
INVOLVEMENT WITH FOREIGN POWERS, HOW COULD IT STRIKE DOWN THE VERY
STATUTE I HAVE JUST DESCRIBED?  FOR THAT STATUTE PURPORTED TO
ESTABLISH, AS A MATTER OF FACT, THAT THE NAMED SOCIETIES WERE A PART OF
A "TRAITOROUS CONSPIRACY" ACTING "IN CONJUNCTION WITH THE PERSONS FROM
TIME TO TIME EXERCISING THE POWERS OF GOVERNMENT IN FRANCE." 

AT THE VERY TIME ENGLAND WAS GOING THROUGH ITS ERA OF TERROR ABOUT
THE "JACOBINS," A HEATED POLITICAL STRUGGLE INVOLVING MANY OF THE SAME
ISSUES WAS GOING ON IN THIS COUNTRY BETWEEN THE TWO CHIEF POLITICAL
PARTIES.  ONE OF THOSE PARTIES, THE FEDERALISTS, WANTED TO OUTLAW THE
PARTY OF JEFFERSON ON THE GROUND THAT THEY TOO WERE "JACOBINS" AND
THEREFORE A THREAT TO OUR SECURITY.  THE JEFFERSONIANS QUITE NATURALLY
OPPOSED SUCH OUTLAWRY AND IN FACT OPPOSED ANY MEASURE WHICH WOULD
RESTRICT THE FREEDOMS OF SPEECH, PRESS, PETITION AND ASSEMBLY.  THE
DIFFERENCE BETWEEN THE TWO PARTIES WAS EXPRESSED BY JEFFERSON IN THIS
WAY: "BOTH OF OUR POLITICAL PARTIES, AT LEAST THE HONEST PART OF THEM,
AGREE CONSCIENTIOUSLY IN THE SAME OBJECT, THE PUBLIC GOOD  ...  .  ONE
FEARS MOST THE IGNORANCE OF THE PEOPLE; THE OTHER, THE SELFISHNESS OF
RULERS INDEPENDENT OF THEM.  WHICH IS RIGHT, TIME AND EXPERIENCE WILL
PROVE."  (FN38)  THIS CONFLICT OF IDEALS AND POLICIES WAS TEMPORARILY
RESOLVED IN FAVOR OF THE FEDERALISTS AND THE RESULT WAS THE INFAMOUS
ERA OF THE ALIEN AND SEDITION ACTS.  (FN39)  THESE LAWS, PASSED OVER
VIGOROUS JEFFERSONIAN OPPOSITION, DECLARED THAT IT WAS NECESSARY IN
ORDER TO PROTECT THE SECURITY OF THE NATION TO GIVE THE PRESIDENT THE
BROADEST OF POWERS OVER ALIENS AND TO MAKE SUBSTANTIAL INROADS UPON THE
FREEDOMS OF SPEECH, PRESS AND ASSEMBLY. 

THE ENFORCEMENT OF THESE STATUTES, PARTICULARLY THE SEDITION ACT,
CONSTITUTES ONE OF THE GREATEST BLOTS ON OUR COUNTRY'S RECORD OF
FREEDOM.  (FN40)  PUBLISHERS WERE SENT TO JAIL FOR WRITING THEIR OWN
VIEWS AND FOR PUBLISHING THE VIEWS OF OTHERS.  THE SLIGHTEST CRITICISM
OF GOVERNMENT OR POLICIES OF GOVERNMENT OFFICIALS WAS ENOUGH TO CAUSE
BIASED FEDERAL PROSECUTORS TO PUT THE MACHINERY OF GOVERNMENT TO WORK
TO CRUSH AND IMPRISON THE CRITIC.  RUMORS WHICH FILLED THE AIR POINTED
THE FINGER OF SUSPICION AT GOOD MEN AND BAD MEN ALIKE, SOMETIMES
CAUSING THE SOCIAL OSTRACISM OF PEOPLE WHO LOVED THEIR FREE COUNTRY
WITH A DEATHLESS DEVOTION.  (FN41)  MEMBERS OF THE JEFFERSONIAN PARTY
WERE PICKED OUT AS SPECIAL TARGETS SO THAT THEY COULD BE ILLUSTRIOUS
EXAMPLES OF WHAT COULD HAPPEN TO PEOPLE WHO FAILED TO SING PAEANS OF
PRAISE FOR CURRENT FEDERAL OFFICIALS AND THEIR POLICIES.  MATTHEW LYON,
A CONGRESSMAN OF THE JEFFERSONIAN PARTY, WAS PROSECUTED, CONVICTED AND
FORCED TO SERVE A PRISON SENTENCE IN A DISREPUTABLE JAILHOUSE BECAUSE
OF CRITICISMS HE MADE OF GOVERNMENTAL OFFICIALS AND THEIR ACTIVITIES. 
THIS WAS A PARTICULARLY EGREGIOUS EXAMPLE OF THE REPRESSIVE NATURE OF
THE SEDITION ACT FOR LYON'S CONVICTION COULD NOT POSSIBLY HAVE BEEN
UPHELD UNDER EVEN THE MOST NIGGARDLY INTERPRETATION OF THE FIRST
AMENDMENT.  (FN42)  LYON WAS BUT ONE OF MANY WHO HAD TO GO TO JAIL, BE
FINED, OR OTHERWISE BE MADE TO SUFFER FOR THE EXPRESSION OF HIS PUBLIC
VIEWS.  CARPENTERS, PREACHERS, LAWYERS, AND MANY OTHERS FURNISHED GRIST
FOR THE PROSECUTOR'S BIASED POLITICAL ACTIVITIES IN THE "ADMINISTRATION
OF JUSTICE."  UNFORTUNATELY, OUR FEDERAL COURTS DID NOT EMERGE FROM
THIS FEVER OF HYSTERIA WITH THE KIND OF REPUTATIONS THAT SHED LUSTRE ON
THE BUSINESS OF JUDGING.  ALTHOUGH THE FOUNDERS HAD PROVIDED FOR
FEDERAL JUDGES TO BE APPOINTED FOR LIFE, THUS INTENDING TO GIVE THEM
THE INDEPENDENCE NECESSARY FOR THE HIGHER RESPONSIBILITY THEY HAD, SOME
FEDERAL JUDGES, EVEN INCLUDING MEMBERS OF THE HIGHEST COURTS, PRESIDED
OVER GRAND JURIES AND TRIALS IN A WAY THAT IS SAD TO BE RECALLED EVEN
AT THIS LATE DATE.  (FN43) 

ALL THE GOVERNMENTAL ACTIVITIES SET OUT ABOVE DESIGNED TO SUPPRESS
THE FREEDOM OF AMERICAN CITIZENS TO THINK THEIR OWN VIEWS AND SPEAK
THEIR OWN THOUGHTS AND READ THEIR OWN SELECTIONS, AND EVEN MORE,
OCCURRED UNDER THE 1798 SEDITION ACT.  AND ALL THESE THINGS HAPPENED
DESPITE THE FACT THAT THE PROMOTERS OF THAT LEGISLATION WERE UNABLE TO
MAKE IT AS STRONG AS THEIR PHILOSOPHICAL AND POLITICAL BRETHREN IN
ENGLAND HAD MADE THEIR ACT FOR THE COMPLETE SUPPRESSION OF ALL KINDS OF
SOCIETIES.  BUT EVEN THIS COMPARATIVELY LESS REPRESSIVE LAW AND ITS
ENFORCEMENT WERE TOO MUCH OF AN INFRINGEMENT UPON PERSONAL LIBERTY TO
STAND THE TEST OF PUBLIC OPINION AMONG THE PLAIN, STURDY PIONEERS OF
AMERICA.  IN THE VERY NEXT ELECTION FOLLOWING ITS ENACTMENT, JEFFERSON
WAS ELECTED PRESIDENT ON A PLATFORM WHICH CONTAINED, AS ITS PRINCIPAL
PLANK, A PROMISE TO ABANDON THE SEDITION ACT AND THE POLICY OF
REPRESSION BEHIND IT.  (FN44)  MEMBERS OF CONGRESS AND THE SENATE WERE
ELECTED TO HELP HIM CARRY OUT HIS PLEDGE.  THE PLEDGE WAS CARRIED OUT,
AND IN ORDER TO TRY TO MAKE AMENDS TO THOSE WHO HAD SUFFERED UNDER THIS
OBNOXIOUS LAW, CONGRESS WAS BUSY FOR MANY YEARS INDEMNIFYING THOSE WHO
HAD BEEN PROSECUTED UNDER ITS PROVISIONS AND EVEN THEIR DESCENDANTS. 
(FN45)  THE SUPERIOR JUDGMENT OF THE PEOPLE OVER THAT OF THEIR
LEGISLATORS WHO PASSED THE ACT IN THE FIRST PLACE WAS GRAPHICALLY
ILLUSTRATED WHEN MATTHEW LYON, WHO HAD BEEN SENT TO JAIL FOR REFUSING
TO REFRAIN FROM CRITICIZING FEDERALIST OFFICEHOLDERS, WAS TRIUMPHANTLY
RE-ELECTED BY THE PEOPLE OF VERMONT WHILE STILL IN JAIL. 

I REGRET, EXCEEDINGLY REGRET, THAT I FEEL IMPELLED TO RECOUNT THIS
HISTORY OF THE FEDERALIST SEDITION ACT BECAUSE, IN ALL TRUTH, IT MUST
BE POINTED OUT THAT THIS LAW - WHICH HAS SINCE BEEN ALMOST UNIVERSALLY
CONDEMNED AS UNCONSITUTIONAL (FN46) - DID NOT GO AS FAR IN SUPPRESSING
THE FIRST AMENDMENT FREEDOMS OF AMERICANS AS DO THE SMITH ACT AND THE
SUBVERSIVE ACTIVITIES CONTROL ACT.  ALL THE FERVOR AND ALL THE
ELOQUENCE AND ALL THE EMOTIONALISM AND ALL THE PREJUDICE AND ALL THE
PARADES OF HORRORS ABOUT LETTING THE PEOPLE HEAR ARGUMENTS FOR
THEMSELVES WERE NOT SUFFICIENT IN 1798 TO PERSUADE THE MEMBERS OF
CONGRESS TO PASS A LAW WHICH WOULD DIRECTLY AND UNEQUIVOCALLY OUTLAW
THE PARTY OF JEFFERSON, AT WHICH THE LAW WAS UNDOUBTEDLY AIMED.  (FN47)
THE SAME ARGUMENTS WERE MADE THEN ABOUT THE "JACOBINS," MEANING THE
JEFFERSONIANS, WITH REGARD TO THEIR ALLEGED SUBSERVIENCE TO FRANCE,
THAT ARE MADE TODAY ABOUT THE COMMUNISTS WITH REGARD TO THEIR
SUBSERVIENCE TO RUSSIA.  EVEN THE LANGUAGE OF THE CHARGES THAT WERE
HURLED WAS SUBSTANTIALLY THE SAME AS THAT USED IN THE CHARGES MADE
TODAY.  THE JACOBINS WERE "TRAINED, OFFICERED, REGIMENTED, AND FORMED
TO SUBORDINATION, IN A MANNER THAT OUR MILITIA HAVE NEVER YET
EQUALLED"; AND "IT IS AS CERTAIN AS ANY FUTURE EVENT CAN BE, THAT THEY
(THE JEFFERSONIANS) WILL TAKE ARMS AGAINST THE LAWS AS SOON AS THEY
DARE  ...  ."  (FN48) 

THESE CHARGES ECHOED FEARS THAT WERE EXPRESSED TIME AND TIME AGAIN
DURING THE CONGRESSIONAL DEBATE ON THE ALIEN AND SEDITION ACTS.  THE
VERY SAME FEARS ARE AGAIN BEING VOICED TODAY AS A JUSTIFICATION FOR
CURTAILING THE LIBERTIES OF THE PEOPLE OF AMERICA.  THUS, SEC. 2(15) OF
THE SUBVERSIVE ACTIVITIES CONTROL ACT UNDER CONSIDERATION SAYS THAT
"THE COMMUNIST MOVEMENT IN THE UNITED STATES IS AN ORGANIZATION
NUMBERING THOUSANDS OF ADHERENTS, RIGIDLY AND RUTHLESSLY DISCIPLINED"
ONLY AWAITING "A MOMENT WHEN  ...  OVERTHROW OF THE GOVERNMENT OF THE
UNITED STATES BY FORCE AND VIOLENCE MAY SEEM POSSIBLE OF ACHIEVEMENT
...  ." 

THIS EXCUSE FOR REPRESSION IS, OF COURSE, NOT A DISTINCTIVELY
AMERICAN CREATION.  IT IS THE SAME EXCUSE THAT WAS USED FOR THE 1799
ENGLISH ACT DESCRIBED ABOVE.  THUS, CHARLES ABBOT, A MEMBER OF
PARLIAMENT, URGED AS ONE OF THE JUSTIFICATIONS FOR OUTLAWING THE
SOCIETIES NAMED IN THAT ACT:  "THE MALIGNANCY OF THEIR CHARACTER IS
DISTINGUISHABLE BY THE RESTLESS SPIRIT WHICH IT INFUSES INTO THE LOWEST
ORDERS OF THE PEOPLE, ENCOURAGING THEM TO TAKE UP ARMS, AND TEACHING
THEM THAT THEY HAVE GREAT AND POWERFUL PARTISANS AND LEADERS WHO ARE
SECRETLY PREPARED TO SEIZE THE FAVORABLE MOMENT FOR SHOWING THEMSELVES
OPENLY AT THEIR HEAD, WHEN THEY CAN HOPE TO DO SO WITH IMPUNITY." 
(FN49) 

THE TRUTH IS THAT THIS STATUTORY OUTLAWRY OF THE COMMUNIST PARTY IS
NOT AT ALL NOVEL WHEN CONSIDERED IN THE PERSPECTIVE OF HISTORY.  QUITE
THE CONTRARY, IT REPRESENTS NOTHING MORE THAN THE ADOPTION BY THIS
COUNTRY, IN PART AT LEAST, OF ONE OF THE TWO CONFLICTING VIEWS THAT
HAVE EMERGED FROM A LONG-STANDING AND WIDESPREAD DISPUTE AMONG
POLITICAL PHILOSOPHERS AS TO WHAT KIND OF GOVERNMENT WILL BEST SERVE
THE WELFARE OF THE PEOPLE.  THAT VIEW IS THAT GOVERNMENTS SHOULD HAVE
ALMOST UNLIMITED POWERS.  THE OTHER VIEW IS THAT GOVERNMENTAL POWER
SHOULD BE VERY STRICTLY LIMITED.   BOTH THE SMITH ACT AND THE
SUBVERSIVE ACTIVITIES CONTROL ACT ARE BASED UPON THE VIEW THAT
OFFICIALS OF THE GOVERNMENT SHOULD HAVE POWER TO SUPPRESS AND CRUSH BY
FORCE CRITICS AND CRITICISMS OF GOVERNMENTAL OFFICIALS AND THEIR
POLICIES.  THE CONTRARY VIEW, WHICH CONGRESS NECESSARILY REJECTED IN
PASSING THESE LAWS, IS THAT CURRENT PUBLIC OFFICIALS SHOULD NEVER BE
GRANTED POWER TO USE GOVERNMENTAL FORCE TO KEEP PEOPLE FROM HEARING,
SPEAKING OR PUBLISHING SUCH CRITICISMS OF GOVERNMENT OR FROM ASSEMBLING
TOGETHER TO PETITION THEIR GOVERNMENT TO MAKE CHANGES IN GOVERNMENTAL
POLICIES, HOWEVER BASIC THE MAJORITY MAY DEEM THESE POLICIES TO BE. 

IT IS MY BELIEF THAT OUR CONSTITUTION WITH ITS BILL OF RIGHTS WAS
EXPRESSLY INTENDED TO MAKE OUR GOVERNMENT ONE OF STRICTLY LIMITED
POWERS.  THE FOUNDERS WERE INTIMATELY FAMILIAR WITH THE RESTRICTIONS
UPON LIBERTY WHICH INEVITABLY FLOW FROM A GOVERNMENT OF UNLIMITED
POWERS.  BY AND LARGE, THEY HAD FOUND THIS EXPERIENCE A PAINFUL ONE. 
MANY OF THEM WERE DESCENDED FROM FAMILIES THAT HAD LEFT ENGLAND AND HAD
COME TO THIS COUNTRY IN ORDER TO ESCAPE LAWS THAT COULD SEND THEM TO
JAIL OR PENALIZE THEM IN VARIOUS WAYS FOR CRITICIZING LAWS AND POLICIES
WHICH THEY THOUGHT BORE TOO HEAVILY AND UNFAIRLY UPON THEM.  OTHERS HAD
PERSONALLY FELT THE BRUNT OF SUCH REPRESSIVE MEASURES.  ONLY AFTER THEY
WON THE REVOLUTIONARY WAR DID THESE PEOPLE HAVE AN OPPORTUNITY TO SET
UP A GOVERNMENT TO THEIR LIKING.  TO THAT END THEY FINALLY SETTLED UPON
THE CONSTITUTION, WHICH VERY CLEARLY ADOPTED THE POLICY OF LIMITING THE
POWERS OF THE FEDERAL GOVERNMENT.  EVEN THEN THE PEOPLE OF THIS COUNTRY
WERE NOT COMPLETELY SATISFIED.  THEY DEMANDED MORE PRECISE AND
UNEQUIVOCAL LIMITATIONS UPON THE POWERS OF GOVERNMENT AND OBTAINED THE
BILL OF RIGHTS, THE CENTRAL PROVISIONS OF WHICH WERE THE FIRST
AMENDMENT GUARANTEES OF COMPLETE RELIGIOUS AND POLITICAL FREEDOM. 
(FN50)    IN THE VERY FACE OF THE PROVISIONS OF THE FIRST AMENDMENT,
HOWEVER, THE COURT TODAY UPHOLDS LAWS WHICH IGNORE THE WISDOM OF THE
FOUNDERS' DECISION TO SET UP A LIMITED GOVERNMENT AND ADOPT THE POLICY
OF FORCE TO CRUSH VIEWS ABOUT PUBLIC MATTERS ENTERTAINED BY A SMALL
MINORITY IN THIS COUNTRY.   THIS, TO ME, MARKS A MAJOR BREAK IN THE
WALL DESIGNED BY THE FIRST AMENDMENT TO KEEP THIS COUNTRY FREE BY
LEAVING THE PEOPLE FREE TO TALK ABOUT ANY KIND OF CHANGE IN BASIC
GOVERNMENTAL POLICIES THEY DESIRE TO TALK ABOUT.  I SEE NO POSSIBLE WAY
TO ESCAPE THE FATEFUL CONSEQUENCES OF A RETURN TO THE ERA IN WHICH ALL
GOVERNMENTAL CRITICS HAD TO FACE THE PROBABILITY OF BEING SENT TO JAIL
EXCEPT FOR THIS COURT TO ABANDON WHAT I CONSIDER TO BE THE DANGEROUS
CONSTITUTIONAL DOCTRINE OF "BALANCING" TO WHICH THE COURT IS AT PRESENT
ADHERING.  THAT DOCTRINE IS NOT A NEW ONE.  IN FACT, HISTORY SHOWS THAT
IT HAS BEEN THE EXCUSE FOR PRACTICALLY EVERY REPRESSIVE MEASURE THAT
GOVERNMENT HAS EVER SEEN FIT TO ADOPT.  MR. PITT PROVED, IN 1799, THAT
HE WAS A MASTER OF THE CONCEPT AND LANGUAGE OF "BALANCING" IN HIS
SPEECH URGING THE PASSAGE OF LAWS TO MUZZLE THE PRESS OF ENGLAND IN
ORDER TO PREVENT THE DISSEMINATION OF THE "REVOLUTIONARY" IDEAS THAT
ENGLAND SHOULD HAVE PARLIAMENTARY REFORM: 

"WE CANNOT TOO HIGHLY PRIZE THAT SACRED LIBERTY OF THE PRESS WHEN WE
CONSIDER THAT IT HAS BEEN INSTRUMENTAL IN BRINGING OUR CONSTITUTION TO
THAT ENVIED PERFECTION WHICH IT POSSESSES.  YET IT MUST ALSO BE
ADMITTED THAT WHEN ABUSED, THE MOST FATAL CONSEQUENCES HAVE EVER
RESULTED FROM IT.  IT HAS BEEN THE GREAT PRINCIPLE OF THE CONSTITUTION
THAT THE LIBERTY OF THE PRESS SHOULD FLOURISH, BUT IT IS ALSO CLEAR
FROM THE NATURE OF THE PRINCIPLE ITSELF, AND FOR THE SECURITY OF THE
PRESS, THAT THE AUTHOR OR PUBLISHER OF EVERY WORK SHOULD BE AMENABLE TO
THE LAWS OF HIS COUNTRY."  (FN51) 

AND THERE CERTAINLY WAS NO SHORTAGE OF "BALANCERS" IN OUR OWN
CONGRESS WHEN THE ALIEN AND SEDITION ACTS OF 1798 WERE PASSED.  (FN52) 

THE "BALANCING TEST" OF FIRST AMENDMENT FREEDOMS IS SAID TO JUSTIFY
LAWS AIMED AT THE ADVOCACY OF OVERTHROW OF THE GOVERNMENT "AS SPEEDILY
AS CIRCUMSTANCES WOULD PERMIT."  (FN53)  THUS, THE "TEST" BEING USED
HERE IS IDENTICAL TO THE ARGUMENTS USED TO JUSTIFY THE ALIEN AND
SEDITION ACTS OF 1798 IN THIS COUNTRY AND THE 1799 SEDITION ACT IN
ENGLAND.  THE UNPRECEDENTED INCORPORATION INTO OUR CONSTITUTIONAL LAW
OF THIS TIME-WORN JUSTIFICATION FOR TYRANNY HAS BEEN USED TO BREAK DOWN
EVEN THE MINIMAL PROTECTIONS (FN54) OF THE FIRST AMENDMENT FORGED BY
MR. JUSTICE HOLMES AND MR. JUSTICE BRANDEIS WHICH WOULD BAR PROSECUTION
FOR SPEECH OR WRITINGS IN ALL CASES EXCEPT THOSE IN WHICH THE WORDS
USED "SO IMMINENTLY THREATEN IMMEDIATE INTERFERENCE WITH THE LAWFUL AND
PRESSING PURPOSES OF THE LAW THAT AN IMMEDIATE CHECK IS REQUIRED TO
SAVE THE COUNTRY."  (FN55) 

I REALIZE THAT THESE LAWS ARE AIMED ONLY AT THE COMMUNIST PARTY.  NO
ONE NEED CONSOLE HIMSELF, HOWEVER, THAT THE POLICY OF USING
GOVERNMENTAL FORCE TO CRUSH DISSIDENT GROUPS UPON WHICH THEY ARE BASED
CAN OR WILL BE STOPPED AT THAT POINT.  THE WEAKENING OF CONSTITUTIONAL
SAFEGUARDS IN ORDER TO SUPPRESS ONE OBNOXIOUS GROUP IS A TECHNIQUE TOO
EASILY AVAILABLE FOR THE SUPPRESSION OF OTHER OBNOXIOUS GROUPS TO
EXPECT ITS ABANDONMENT WHEN THE NEXT GENERALLY HATED GROUP APPEARS. 
ONLY ELEVEN YEARS AGO, THIS COURT UPHELD A GOVERNMENTAL PENALTY
DIRECTED AT COMMUNISTS ON THE GROUND THAT "ONLY A RELATIVE HANDFUL"
WOULD BE AFFECTED BY THE PENALTY INVOLVED IN THAT CASE.  (FN56)  TODAY,
IT UPHOLDS STATUTES WHICH I THINK TOTALLY OUTLAW THAT PARTY, CLAIMING
NONETHELESS THAT "NOTHING WHICH WE DECIDE HERE REMOTELY CARRIES  ...
THE IMPLICATION  ...  THAT CONGRESS MAY IMPOSE SIMILAR REQUIREMENTS
UPON ANY GROUP WHICH PURSUES UNPOPULAR POLITICAL OBJECTIVES OR WHICH
EXPRESSES AN UNPOPULAR POLITICAL IDEOLOGY."  I AM VERY MUCH AFRAID THAT
WE WILL SEE THE DAY WHEN THE VERY IMPLICATION WHICH THE COURT NOW
DENIES IS FOUND. 

I AM READY TO ADMIT THAT STRONG ARGUMENTS CAN BE MADE FOR SAYING THAT
GOVERNMENTS IN GENERAL SHOULD HAVE POWER TO SUPPRESS THE FREEDOMS OF
SPEECH, PRESS, PETITION AND ASSEMBLY.  THESE ARGUMENTS ARE PARTICULARLY
STRONG IN COUNTRIES WHERE THE EXISTING GOVERNMENT DOES NOT REPRESENT
THE WILL OF THE PEOPLE BECAUSE HISTORY SHOWS THAT PEOPLE HAVE A WAY OF
NOT BEING WILLING TO BEAR OPPRESSIVE GRIEVANCES WITHOUT PROTEST.  SUCH
PROTESTS, WHEN BOTTOMED UPON FACTS, LEAD ALMOST INEVITABLY TO AN
IRRESISTIBLE POPULAR DEMAND FOR EITHER A REDRESS OF THOSE GRIEVANCES OR
A CHANGE IN THE GOVERNMENT.  IT IS PLAIN THAT THERE ARE GOVERNMENTS IN
THE WORLD TODAY THAT DESPERATELY NEED TO SUPPRESS SUCH PROTESTS FOR
THEY PROBABLY COULD NOT SURVIVE A WEEK OR EVEN A DAY IF THEY WERE
DEPRIVED OF THE POWER TO USE THEIR INFORMERS TO INTIMIDATE, THEIR JAILS
TO IMPRISON AND THEIR FIRING SQUADS TO SHOOT THEIR CRITICS.  IN
COUNTRIES OF THAT KIND, REPRESSIVE MEASURES LIKE THE SMITH ACT AND THE
SUBVERSIVE ACTIVITIES CONTROL ACT ARE ABSOLUTELY NECESSARY TO PROTECT
THE RULING TYRANTS FROM THE SPREAD OF INFORMATION ABOUT THEIR
MISDEEDS.  BUT IN A DEMOCRACY LIKE OURS, SUCH LAWS ARE NOT ONLY
UNNECESSARY BUT ALSO CONSTITUTE A BASELESS INSULT TO THE PATRIOTISM OF
OUR PEOPLE. 

I BELIEVE WITH THE FRAMERS OF THE FIRST AMENDMENT THAT THE INTERNAL
SECURITY OF A NATION LIKE OURS DOES NOT AND CANNOT BE MADE TO DEPEND
UPON THE USE OF FORCE BY GOVERNMENT TO MAKE ALL THE BELIEFS AND
OPINIONS OF THE PEOPLE FIT INTO A COMMON MOLD ON ANY SINGLE SUBJECT. 
SUCH ENFORCED CONFORMITY OF THOUGHT WOULD TEND ONLY TO DEPRIVE OUR
PEOPLE OF THE BOLD SPIRIT OF ADVENTURE AND PROGRESS WHICH HAS BROUGHT
THIS NATION TO ITS PRESENT GREATNESS.  THE CREATION OF PUBLIC OPINION
BY GROUPS, ORGANIZATIONS, SOCIETIES, CLUBS, AND PARTIES HAS BEEN AND IS
A NECESSARY PART OF OUR DEMOCRATIC SOCIETY.  SUCH GROUPS, LIKE THE SONS
OF LIBERTY AND THE AMERICAN CORRESPONDING SOCIETIES, PLAYED A LARGE
PART IN CREATING SENTIMENT IN THIS COUNTRY THAT LED THE PEOPLE OF THE
COLONIES TO WANT A NATION OF THEIR OWN.  THE FATHER OF THE CONSTITUTION
- JAMES MADISON - SAID, IN SPEAKING OF THE SEDITION ACT AIMED AT
CRUSHING THE JEFFERSONIAN PARTY, THAT HAD THE LAW BEEN IN EFFECT DURING
THE PERIOD BEFORE THE REVOLUTION, THE UNITED STATES MIGHT WELL HAVE
CONTINUED TO BE "MISERABLE COLONIES, GROANING UNDER A FOREIGN YOKE." 
(FN57) 

IN MY JUDGMENT, THIS COUNTRY'S INTERNAL SECURITY CAN BETTER BE SERVED
BY DEPENDING UPON THE AFFECTION OF THE PEOPLE THAN BY ATTEMPTING TO
INSTILL THEM WITH FEAR AND DREAD OF THE POWER OF GOVERNMENT.  THE
COMMUNIST PARTY HAS NEVER BEEN MORE THAN A SMALL GROUP IN THIS
COUNTRY.  AND ITS NUMBERS HAD BEEN DWINDLING EVEN BEFORE THE GOVERNMENT
BEGAN ITS CAMPAIGN TO DESTROY THE PARTY BY FORCE OF LAW.  THIS WAS
BECAUSE A VAST MAJORITY OF THE AMERICAN PEOPLE WERE AGAINST THE PARTY'S
POLICIES AND OVERWHELMINGLY REJECTED ITS CANDIDATES YEAR AFTER YEAR. 
THAT IS THE TRUE AMERICAN WAY OF SECURING THIS NATION AGAINST DANGEROUS
IDEAS.  OF COURSE THAT IS NOT THE WAY TO PROTECT THE NATION AGAINST
ACTIONS OF VIOLENCE AND TREASON.  THE FOUNDERS DREW A DISTINCTION IN
OUR CONSTITUTION WHICH WE WOULD BE WISE TO FOLLOW.  THEY GAVE THE
GOVERNMENT THE FULLEST POWER TO PROSECUTE OVERT ACTIONS IN VIOLATION OF
VALID LAWS BUT WITHHELD ANY POWER TO PUNISH PEOPLE FOR NOTHING MORE
THAN ADVOCACY OF THEIR VIEWS. 

I AM COMPELLED TO SAY IN CLOSING THAT I FEAR THAT ALL THE ARGUMENTS
AND URGINGS THE COMMUNISTS AND THEIR SYMPATHIZERS CAN USE IN TRYING TO
CONVERT AMERICANS TO AN IDEOLOGY WHOLLY FOREIGN TO OUR HABITS AND OUR
INSTINCTS ARE FAR LESS DANGEROUS TO THE SECURITY OF THIS NATION THAN
LAWS WHICH EMBARK US UPON A POLICY OF REPRESSION BY THE OUTLAWRY OF
MINORITY PARTIES BECAUSE THEY ADVOCATE RADICAL CHANGES IN THE STRUCTURE
OF GOVERNMENT.  THIS WIDESPREAD PROGRAM FOR PUNISHING IDEAS ON THE
GROUND THAT THEY MIGHT IMPAIR THE INTERNAL SECURITY OF THE NATION NOT
ONLY SADLY FAILS TO PROTECT THAT SECURITY BUT ALSO DIVERTS OUR ENERGIES
AND THOUGHTS FROM THE MANY FAR MORE IMPORTANT PROBLEMS THAT FACE US AS
A NATION IN THIS TROUBLED WORLD. 

I WOULD REVERSE THIS CASE AND LEAVE THE COMMUNISTS FREE TO ADVOCATE
THEIR BELIEFS IN PROLETARIAN DICTATORSHIP PUBLICLY AND OPENLY AMONG THE
PEOPLE OF THIS COUNTRY WITH FULL CONFIDENCE THAT THE PEOPLE WILL REMAIN
LOYAL TO ANY DEMOCRATIC GOVERNMENT TRULY DEDICATED TO FREEDOM AND
JUSTICE - THE KIND OF GOVERNMENT WHICH SOME OF US STILL THINK OF AS
BEING "THE LAST BEST HOPE OF EARTH." 

FN1  64 STAT. 987, AS AMENDED, 50 U.S.C. SECS. 781-798. 

FN2  52 STAT. 631, AS AMENDED, 22 U.S.C. SECS. 611-621. 

FN3  22 U.S.C. SEC. 611. 

FN4  318 U.S. 236, 251 (DISSENTING OPINION). 

FN5  18 U.S.C. SEC. 2385. 

FN6  SCALES V. UNITED STATES, POST, P. 203. 

FN7  50 U.S.C. SEC. 781(4).  "THE DIRECTION AND CONTROL OF THE WORLD
COMMUNIST MOVEMENT IS VESTED IN AND EXERCISED BY THE COMMUNIST
DICTATORSHIP OF A FOREIGN COUNTRY." 

FN8  50 U.S.C. SEC. 781(11).  "THE AGENTS OF COMMUNISM HAVE DEVISED
CLEVER AND RUTHLESS ESPIONAGE AND SABOTAGE TACTICS WHICH ARE CARRIED
OUT IN MANY INSTANCES IN FORM OR MANNER SUCCESSFULLY EVASIVE OF
EXISTING LAW." 

FN9  50 U.S.C. SEC. 781(1).  "THERE EXISTS A WORLD COMMUNIST MOVEMENT
WHICH, IN ITS ORIGINS, ITS DEVELOPMENT, AND ITS PRESENT PRACTICE, IS A
WORLD-WIDE REVOLUTIONARY MOVEMENT WHOSE PURPOSE IT IS, BY TREACHERY,
DECEIT, INFILTRATION INTO OTHER GROUPS (GOVERNMENTAL AND OTHERWISE),
ESPIONAGE, SABOTAGE, TERRORISM, AND ANY OTHER MEANS DEEMED NECESSARY,
TO ESTABLISH A COMMUNIST TOTALITARIAN DICTATORSHIP IN THE COUNTRIES
THROUGHOUT THE WORLD THROUGH THE MEDIUM OF A WORLD-WIDE COMMUNIST
ORGANIZATION." 

FN10  50 U.S.C. SEC. 781(15).  "THE COMMUNIST MOVEMENT IN THE UNITED
STATES IS AN ORGANIZATION NUMBERING THOUSANDS OF ADHERENTS, RIGIDLY AND
RUTHLESSLY DISCIPLINED.  AWAITING AND SEEKING TO ADVANCE A MOMENT WHEN
THE UNITED STATES MAY BE SO FAR EXTENDED BY FOREIGN ENGAGEMENTS, SO FAR
DIVIDED IN COUNSEL, OR SO FAR IN INDUSTRIAL OR FINANCIAL STRAITS, THAT
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE
MAY SEEM POSSIBLE OF ACHIEVEMENT, IT SEEKS CONVERTS FAR AND WIDE BY AN
EXTENSIVE SYSTEM OF SCHOOLING AND INDOCTRINATION  ...  ." 

FN11  50 U.S.C. SEC. 781(9).  "IN THE UNITED STATES THOSE INDIVIDUALS
WHO KNOWINGLY AND WILLFULLY PARTICIPATE IN THE WORLD COMMUNIST
MOVEMENT, WHEN THEY SO PARTICIPATE, IN EFFECT REPUDIATE THEIR
ALLEGIANCE TO THE UNITED STATES, AND IN EFFECT TRANSFER THEIR
ALLEGIANCE TO THE FOREIGN COUNTRY IN WHICH IS VESTED THE DIRECTION AND
CONTROL OF THE WORLD COMMUNIST MOVEMENT." 

FN12  50 U.S.C. SEC. 794(A)(2). 

FN13  50 U.S.C. SEC. 794(A). 

FN14  50 U.S.C. SEC. 794(B)(2). 

FN15  50 U.S.C. SEC. 790. 

FN16  50 U.S.C. SEC. 789(1). 

FN17  50 U.S.C. SEC. 784. 

FN18  50 U.S.C. SEC. 785. 

FN19  50 U.S.C. SEC. 788. 

FN20  THERE SEEMS TO BE LITTLE DOUBT THAT A REGISTERED MEMBER OF THE
COMMUNIST PARTY WOULD FIND IT ALMOST IMPOSSIBLE TO GET OR RETAIN
EMPLOYMENT IN THIS COUNTRY.  SEE, E.G., AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382; BARSKY V. BOARD OF REGENTS, 347 U.S. 442;
LERNER V. CASEY, 357 U.S. 468; BEILAN V. BOARD OF EDUCATION, 357 U.S.
399; NELSON V. COUNTY OF LOS ANGELES, 362 U.S. 1; KONIGSBERG V. STATE
BAR OF CALIFORNIA, 366 U.S. 36; IN RE ANASTAPLO, 366 U.S. 82.  CF.
SHELTON V. TUCKER, 364 U.S. 479. 

FN21  SEE, E.G., DENNIS V. UNITED STATES, 341 U.S. 494; YATES V.
UNITED STATES, 354 U.S. 298; SCALES V. UNITED STATES, POST, P. 203;
NOTO V. UNITED STATES, POST, P. 290. 

FN22  SEE, E.G., WATKINS V. UNITED STATES, 354 U.S. 178; SWEEZY V.
NEW HAMPSHIRE, 354 U.S. 234; BARENBLATT V. UNITED STATES, 360 U.S. 109;
UPHAUS V. WYMAN, 360 U.S. 72; UPHAUS V. WYMAN, 364 U.S. 388; WILKINSON
V. UNITED STATES, 365 U.S. 399; BRADEN V. UNITED STATES, 365 U.S. 431. 

FN23  IN THIS REGARD, I THINK THE PRESENT CASE IS IDENTICAL TO EX
PARTE YOUNG, 209 U.S. 123.  THERE THE COURT REACHED AND DECIDED THE
CONSTITUTIONAL QUESTION TENDERED, SAYING:  "IT MAY THEREFORE BE SAID
THAT WHEN THE PENALTIES FOR DISOBEDIENCE ARE BY FINES SO ENORMOUS AND
IMPRISONMENT SO SEVERE AS TO INDIMIDATE THE COMPANY AND ITS OFFICERS
FROM RESORTING TO THE COURTS TO TEST THE VALIDITY OF THE LEGISLATION,
THE RESULT IS THE SAME AS IF THE LAW IN TERMS PROHIBITED THE COMPANY
FROM SEEKING JUDICIAL CONSTRUCTION OF LAWS WHICH DEEPLY AFFECT ITS
RIGHTS."  ID., AT 147. 

FN24  CUMMINGS V. MISSOURI, 4 WALL.  277, 323.  AND SEE UNITED STATES
V. LOVETT, 328 U.S. 303. 

FN25  THIS PROVIDES YET ANOTHER DIFFERENCE BETWEEN THE ACT UNDER
CONSIDERATION HERE AND THE ACT UNDER WHICH THE PROSECUTION INVOLVED IN
THE VIERECK CASE WAS BROUGHT.  BEFORE VIERECK COULD BE CONVICTED FOR
HAVING FAILED TO REGISTER OR REPORT AS A FOREIGN AGENT, HE WAS ENTITLED
TO HAVE ALL THE FACTS UPON WHICH HIS GUILT DEPENDED DETERMINED BY A
JURY UNDER AN INDICTMENT RETURNED BY A GRAND JURY AND DURING THE COURSE
OF A JUDICIAL PROCEEDING IN WHICH HE WAS ACCORDED THE PROTECTION OF ALL
THE FORMS AND PROCEDURES DESIGNED THROUGH THE YEARS TO PROTECT
DEFENDANTS CHARGED WITH THE COMMISSION OF A CRIMINAL OFFENSE. 

FN26  CF. WHITNEY V. CALIFORNIA, 274 U.S. 357, 378:  "AMONG FREE MEN,
THE DETERRENTS ORDINARILY TO BE APPLIED TO PREVENT CRIME ARE EDUCATION
AND PUNISHMENT FOR VIOLATIONS OF THE LAW, NOT ABRIDGMENT OF THE RIGHTS
OF FREE SPEECH AND ASSEMBLY."  (BRANDEIS, J., CONCURRING.) 

FN27  CF. GITLOW V. NEW YORK, 268 U.S. 652, 673:  "IF IN THE LONG RUN
THE BELIEFS EXPRESSED IN PROLETARIAN DICTATORSHIP ARE DESTINED TO BE
ACCEPTED BY THE DOMINANT FORCES OF THE COMMUNITY, THE ONLY MEANING OF
FREE SPEECH IS THAT THEY SHOULD BE GIVEN THEIR CHANCE AND HAVE THEIR
WAY."  (HOLMES, J., DISSENTING.) 

FN28  35 ELIZABETH, CC. I AND II, ENTITLED "AN ACT TO RETAIN THE
QUEEN'S MAJESTY'S SUBJECTS IN THEIR DUE OBEDIENCE" AND "AN ACT FOR
RESTRAINING POPISH RECUSANTS TO SOME CERTAIN PLACES OF ABODE." 

FN29  A BRIEF HISTORY OF SOME OF THESE STATUTES IS SET OUT IN MY
DISSENTING OPINION IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.
382, 447-448, NOTES 3 AND 4.    FN30  SEVERAL EXAMPLES OF THE
PERSECUTION INFLICTED UPON PROTESTANTS BY CATHOLICS WERE SET OUT IN THE
APPENDIX TO MY CONCURRING OPINION IN JOINT ANTI-FASCIST REFUGEE COMM.
V. MCGRATH, 341 U.S. 123, 146-149. 

FN31  SEE, E.G., BUNYAN, THE PILGRIMS PROGRESS; MILTON,
AREOPAGITICA. 

FN32  39 GEORGE III, C. 79. 

FN33  SECTION 7(D)(6) OF THE ACT, 50 U.S.C. SEC. 786(D)(6), REQUIRES
THE "LISTING, IN SUCH FORM AND DETAIL AS THE ATTORNEY GENERAL SHALL BY
REGULATION PRESCRIBE, OF ALL PRINTING PRESSES AND MACHINES INCLUDING
BUT NOT LIMITED TO ROTARY PRESSES, FLATBED CYLINDER PRESSES, PLATEN
PRESSES, LITHOGRAPHS, OFFSETS, PHOTO-OFFSETS, MIMEOGRAPH MACHINES,
MULTIGRAPH MACHINES, MULTILITH MACHINES, DUPLICATING MACHINES, DITTO
MACHINES, LINOTYPE MACHINES, INTERTYPE MACHINES, MONOTYPE MACHINES, AND
ALL OTHER TYPES OF PRINTING PRESSES, TYPESETTING MACHINES OR ANY
MECHANICAL DEVICES USED OR INTENDED TO BE USED, OR CAPABLE OF BEING
USED TO PRODUCE OR PUBLISH PRINTED MATTER OR MATERIAL, WHICH ARE IN THE
POSSESSION, CUSTODY, OWNERSHIP, OR CONTROL OF THE COMMUNIST-ACTION OR
COMMUNIST-FRONT ORGANIZATION OR ITS OFFICERS, MEMBERS, AFFILIATES,
ASSOCIATES, GROUP, OR GROUPS IN WHICH THE COMMUNIST-ACTION OR COMMUNIST
FRONT ORGANIZATION, ITS OFFICERS OR MEMBERS HAVE AN INTEREST." 

FN34  PARLIAMENTARY DEBATES, HANSARD, 1ST SERIES, 34, AT 987. 

FN35  ID., AT 988. 

FN36  IBID. 

FN37  ID., AT 984-998. 

FN38  4 MEMOIR OF JEFFERSON 28. 

FN39  THE SO-CALLED ALIEN AND SEDITION ACTS COMPRISED THREE DIFFERENT
STATUTES ENACTED IN 1798:  1 STAT. 570; 1 STAT. 577; AND 1 STAT. 596. 

FN40  FOR A GRAPHIC DISCUSSION OF THE PERIOD OF THE ALIEN AND
SEDITION ACTS, SEE BOWERS, JEFFERSON AND HAMILTON, 1925, C. XVI,
"HYSTERICS," AND C. XVII, "THE REIGN OF TERROR." 

FN41  MUCH OF THIS SORT OF MISDIRECTED PERSECUTION WAS DOUBTLESS DUE
TO THE ATTITUDE AND THE PUBLIC STATEMENTS OF THE INFLUENTIAL FEDERALIST
SECRETARY OF STATE, TIMOTHY PICKERING.  SEE MILLER, CRISIS IN FREEDOM,
89-90 (1951):  "BY PICKERING AND HIS FOLLOWERS, IT WAS HELD THAT SINCE
HONEST MEN WHO VALUED THE NATIONAL WELFARE WOULD NOT CAVIL AT THE
SEDITION ACT, IT COULD BE PRESUMED THAT THOSE WHO CRITICIZED IT WERE NO
BETTER THAN JACOBIN FELLOW-TRAVELERS.  IT WAS LAID DOWN AS A SOUND
PRINCIPLE THAT 'WHEN A MAN IS HEARD TO INVEIGH AGAINST THIS LAW, SET
HIM DOWN AS A MAN WHO WOULD SUBMIT TO NO RESTRAINT WHICH IS CALCULATED
FOR THE PEACE OF SOCIETY.  HE DESERVES TO BE SUSPECTED.'  THUS, JACOBIN
SYMPATHIZERS WERE KNOWN BY THEIR ATTITUDE TOWARD THE SEDITION ACT; A
CRITICAL OR SKEPTICAL FRAME OF MIND WAS PRIMA FACIE EVIDENCE OF GUILT. 
THE SECRETARY OF STATE LOOKED DARKLY UPON SUCH TROUBLEMAKERS:  'THOSE
WHO COMPLAIN OF LEGAL PROVISIONS FOR PUNISHING INTENTIONAL DEFAMATION
AND LIES, AS BRIDLING THE LIBERTY OF SPEECH AND OF THE PRESS,' HE SAID,
'MAY, WITH EQUAL PROPRIETY, COMPLAIN AGAINST LAWS MADE FOR PUNISHING
ASSAULT AND MURDER, AS RESTRAINTS UPON THE FREEDOM OF MEN'S ACTIONS.'" 
IN SUCH AN ATMOSPHERE, IT IS SMALL WONDER, AS MILLER OBSERVES, THAT "IT
BECAME IMPOSSIBLE FOR THE FEDERALISTS TO DISTINGUISH BETWEEN A GENUINE,
FREEDOM-LOVING AMERICAN DEMOCRAT AND A FRENCH JACOBIN BENT UPON
OVERTURNING RELIGION, MORALITY AND THE STATE."  ID., AT 90. 

FN42  THE INDICTMENT AGAINST LYON ALLEGED TWO COUNTS OF LIBEL AGAINST
PRESIDENT ADAMS.  THE FIRST COUNT ALLEGED THAT LYON HAD MADE AND
PUBLISHED THE FOLLOWING STATEMENT:  "AS TO THE EXECUTIVE, WHEN I SHALL
SEE THE EFFECTS OF THAT POWER BENT ON THE PROMOTION OF THE COMFORT, THE
HAPPINESS, AND ACCOMMODATION OF THE PEOPLE, THAT EXECUTIVE SHALL HAVE
MY ZEALOUS AND UNIFORM SUPPORT.  BUT WHENEVER I SHALL, ON THE PART OF
OUR EXECUTIVE, SEE EVERY CONSIDERATION OF PUBLIC WELFARE SWALLOWED UP
IN A CONTINUAL GRASP FOR POWER, IN AN UNBOUNDED THIRST FOR RIDICULOUS
POMP, FOOLISH ADULATION, AND SELFISH AVARICE - WHEN I SHALL BEHOLD MEN
OF REAL MERIT DAILY TURNED OUT OF OFFICE FOR NO OTHER CAUSE THAN
INDEPENDENCY OF SENTIMENT - WHEN I SHALL SEE MEN OF FIRMNESS, MERIT,
YEARS, ABILITIES, AND EXPERIENCE, DISCARDED IN THEIR APPLICATIONS FOR
OFFICE, FOR FEAR THEY POSSESS THAT INDEPENDENCE, AND MEN OF MEANNESS
PREFERRED FOR THE EASE WITH WHICH THEY CAN TAKE UP AND ADVOCATE
OPINIONS, THE CONSEQUENCE OF WHICH THEY KNOW BUT LITTLE OF - WHEN I
SHALL SEE THE SACRED NAME OF RELIGION EMPLOYED AS A STATE ENGINE TO
MAKE MANKIND HATE AND PERSECUTE EACH OTHER, I SHALL NOT BE THEIR HUMBLE
ADVOCATE]"  THE SECOND COUNT OF THE INDICTMENT ALLEGED THAT LYON HAD
CAUSED THE PUBLICATION OF THE FOLLOWING LETTER FROM A PERSON IN FRANCE:
"THE MISUNDERSTANDING BETWEEN THE TWO GOVERNMENTS HAS BECOME EXTREMELY
ALARMING; CONFIDENCE IS COMPLETELY DESTROYED; MISTRUSTS, JEALOUSIES,
AND A DISPOSITION TO A WRONG ATTRIBUTION OF MOTIVES, ARE SO APPARENT AS
TO REQUIRE THE UTMOST CAUTION IN EVERY WORD AND ACTION THAT ARE TO COME
FROM YOUR EXECUTIVE - I MEAN IF YOUR OBJECT IS TO AVOID HOSTILITIES. 
HAD THIS TRUTH BEEN UNDERSTOOD WITH YOU BEFORE THE RECALL OF MONROE -
BEFORE THE COMING AND SECOND COMING OF PINCKNEY; HAD IT GUIDED THE PENS
THAT WROTE THE BULLYING SPEECH OF YOUR PRESIDENT, AND STUPID ANSWER OF
YOUR SENATE, AT THE OPENING OF CONGRESS IN NOVEMBER LAST, I SHOULD
PROBABLY HAVE HAD NO OCCASION TO ADDRESS YOU THIS LETTER.  BUT WHEN WE
FOUND HIM BORROWING THE LANGUAGE OF EDMUND BURKE, AND TELLING THE WORLD
THAT, ALTHOUGH HE SHOULD SUCCEED IN TREATING WITH THE FRENCH, THERE WAS
NO DEPENDENCE TO BE PLACED IN ANY OF THEIR ENGAGEMENTS, THAT THEIR
RELIGION AND MORALITY WERE AT AN END, AND THEY HAD TURNED PIRATES AND
PLUNDERERS, AND THAT IT WOULD BE NECESSARY TO BE PERPETUALLY ARMED
AGAINST THEM, THOUGH YOU ARE AT PEACE; WE WONDERED THAT THE ANSWER OF
BOTH HOUSES HAD NOT BEEN AN ORDER TO SEND HIM TO THE MAD-HOUSE. 
INSTEAD OF THIS, THE SENATE HAVE ECHOED THE SPEECH WITH MORE SERVILITY
THAN EVER GEORGE THE THIRD EXPERIENCED FROM EITHER HOUSE OF
PARLIAMENT."  CONG. GLOBE, 26TH CONG., 1ST SESS. 411 (1840). 

FN43  THE PARTY PLAYED BY FEDERAL JUDGES IN THE CREATION OF THE
ATMOSPHERE OF HYSTERIA WHICH CHARACTERIZED THE PERIOD IS DISCUSSED IN
BOWERS, JEFFERSON AND HAMILTON, 398-402.  SEE ALSO MILLER, CRISIS IN
FREEDOM, 135-142. 

FN44 THE SIGNIFICANCE OF THE ISSUE OF POLITICAL FREEDOM IN THE
ELECTION OF 1800 IS SHOWN BY THE FACT THAT JEFFERSON DEVOTED A LARGE
PART OF HIS INAUGURAL ADDRESS TO THAT SUBJECT.  IT WAS AT THAT TIME
THAT HE GAVE NEW EMPHASIS TO THE CREED OF POLITICAL FREEDOM BY WHICH
THIS COUNTRY LIVED AND PROSPERED FOR SO LONG:  "IF THERE BE ANY AMONG
US WHO WOULD WISH TO DISSOLVE THIS UNION OR TO CHANGE ITS REPUBLICAN
FORM, LET THEM STAND UNDISTURBED AS MONUMENTS OF THE SAFETY WITH WHICH
ERROR OF OPINION MAY BE TOLERATED WHERE REASON IS LEFT FREE TO COMBAT
IT."  THE PART OF JEFFERSON'S FIRST INAUGURAL ADDRESS DEALING WITH
POLITICAL FREEDOM IS REPRINTED IN JONES, PRIMER OF INTELLECTUAL
FREEDOM, 142 (HARVARD UNIVERSITY PRESS, 1949). 

FN45  IN 1840, FOR EXAMPLE, PRESIDENT VAN BUREN SIGNED A BILL THAT
INDEMNIFIED THE DESCENDANTS OF MATTHEW LYON FOR THE PERSECUTION HE HAD
SUFFERED UNDER THE SEDITION ACT.  SEE CONG. GLOBE, 26TH CONG., 1ST
SESS. 410-414, 478 (1840).  APPROPRIATELY, THIS ACT OF OFFICIAL
DENOUNCEMENT OF THE SEDITION LAW WAS ACCOMPLISHED ON JULY 4 OF THAT
YEAR.  6 STAT. 802. 

FN46  PERHAPS THE STRONGEST DENUNCIATION OF THE SEDITION ACT AS
UNCONSTITUTIONAL HAS COME FROM CONGRESS ITSELF.  THE REPORT OF THE
COMMITTEE OF THE HOUSE OF REPRESENTATIVES WHICH PRESENTED THE BILL
PASSED IN 1840 TO REFUND THE FINE IMPOSED UNDER THAT ACT UPON MATTHEW
LYON STATED:  "THE COMMITTEE DO NOT DEEM IT NECESSARY TO DISCUSS AT
LENGTH THE CHARACTER OF THAT LAW, OR TO ASSIGN ALL THE REASONS, HOWEVER
DEMONSTRATIVE, THAT HAVE INDUCED THE CONVICTION OF ITS
UNCONSTITUTIONALITY.  NO QUESTION CONNECTED WITH THE LIBERTY OF THE
PRESS EVER EXCITED A MORE UNIVERSAL AND INTENSE INTEREST - EVER
RECEIVED SO ACUTE, ABLE, LONG-CONTINUED, AND ELABORATE INVESTIGATION -
WAS EVER MORE GENERALLY UNDERSTOOD, OR SO CONCLUSIVELY SETTLED BY THE
CONCURRING OPINIONS OF ALL PARTIES, AFTER THE HEATED POLITICAL CONTESTS
OF THE DAY HAD PASSED AWAY.  ALL THAT NOW REMAINS TO BE DONE BY THE
REPRESENTATIVES OF THE PEOPLE WHO CONDEMNED THIS ACT OF THEIR AGENTS AS
UNAUTHORIZED, AND TRANSCENDING THEIR GRANT OF POWER, TO PLACE BEYOND
QUESTION, DOUBT, OR CAVIL, THAT MANDATE OF THE CONSTITUTION PROHIBITING
CONGRESS FROM ABRIDGING THE LIBERTY OF THE PRESS, AND TO DISCHARGE AN
HONEST, JUST, MORAL, AND HONORABLE OBLIGATION, IS TO REFUND FROM THE
TREASURY THE FINE THUS ILLEGALLY AND WRONGFULLY OBTAINED FROM ONE OF
THEIR CITIZENS:  FOR WHICH PURPOSE THE COMMITTEE HEREWITH REPORT A
BILL."  CONG.  GLOBE, 26TH CONG., 1ST SESS. 411 (1840).  CF. ABRAMS V.
UNITED STATES, 250 U.S. 616, 630:  "I WHOLLY DISAGREE WITH THE ARGUMENT
OF THE GOVERNMENT THAT THE FIRST AMENDMENT LEFT THE COMMON LAW AS TO
SEDITIOUS LIBEL IN FORCE.  HISTORY SEEMS TO ME AGAINST THE NOTION.  I
HAD CONCEIVED THAT THE UNITED STATES THROUGH MANY YEARS HAD SHOWN ITS
REPENTANCE FOR THE SEDITION ACT OF 1798, BY REPAYING FINES THAT IT
IMPOSED."  (HOLMES, J., DISSENTING.) 

FN47  THE REAL AIM OF THE SEDITION ACT EMERGES WITH INDISPUTABLE
CLARITY FROM THE DEBATES SURROUNDING ITS ENACTMENT.  THUS JOHN ALLEN,
ONE OF THE SUPPORTERS OF THE ACT IN THE HOUSE OF REPRESENTATIVES, URGED
THE NECESSITY OF THE ACT IN THE FOLLOWING TERMS:  "I HOPE THIS BILL
WILL NOT BE REJECTED.  IF EVER THERE WAS A NATION WHICH REQUIRED A LAW
OF THIS KIND, IT IS THIS.  LET GENTLEMEN LOOK AT CERTAIN PAPERS PRINTED
IN THIS CITY AND ELSEWHERE, AND ASK THEMSELVES WHETHER AN UNWARRANTABLE
AND DANGEROUS COMBINATION DOES NOT EXIST TO OVERTURN AND RUIN THE
GOVERNMENT BY PUBLISHING THE MOST SHAMELESS FALSEHOODS AGAINST THE
REPRESENTATIVES OF THE PEOPLE OF ALL DENOMINATIONS, THAT THEY ARE
HOSTILE TO FREE GOVERNMENTS AND GENUINE LIBERTY, AND OF COURSE TO THE
WELFARE OF THIS COUNTRY; THAT THEY OUGHT, THEREFORE, TO BE DISPLACED,
AND THAT THE PEOPLE OUGHT TO RAISE AN INSURRECTION AGAINST THE
GOVERNMENT  ...  .  I SAY, SIR, THIS PAPER (THE AURORA, A PAPER WHICH
SUPPORTED THE JEFFERSONIAN PARTY) MUST NECESSARILY, IN THE NATURE OF
THINGS, BE SUPPORTED BY A POWERFUL PARTY; I DO NOT SAY OF WHOM THAT
PARTY IS COMPOSED.  THE ANONYMOUS PIECES AND PARAGRAPHS IT CONTAINS,
EVINCE THE TALENTS AND INDUSTRY EMPLOYED TO GIVE IT CURRENCY; AND IT IS
PERFECTLY WELL UNDERSTOOD, BY ALL PARTIES AND PERSONS, TO CONTAIN THE
OPINIONS OF CERTAIN GREAT MEN, AND CERTAIN GENTLEMEN IN THIS HOUSE. 
THIS INFLAMMATORY ADDRESS TO THE IRISHMEN, IS, THEREFORE, UNDERSTOOD BY
THEM TO COME CLOTHED WITH HIGH AUTHORITY.  THIS IS THE WORK OF A PARTY;
THIS PAPER IS DEVOTED TO A PARTY; IT IS ASSIDUOUSLY DISSEMINATED
THROUGH THE COUNTRY BY A PARTY; TO THAT PARTY IS ALL THE CREDIT DUE; TO
THAT PARTY IT OWES ITS EXISTENCE; IF THEY LOVED THE PEACE OF OUR ZION,
IF THEY SOUGHT THE REPOSE OF OUR COUNTRY, IT WOULD CEASE TO EMIT ITS
FILTH; IT HAS FLOURISHED BY THEIR SMILES; IT WOULD PERISH AT THEIR
FROWNS."  8 ANNALS OF CONG. 2093-2100.  IT IS, OF COURSE, TRUE THAT
SOME CONGRESSMEN WHO FAVORED THE SEDITION ACT DID SO ON BROADER
GROUNDS.  "HARRISON GRAY OTIS WOULD HAVE EMPLOYED THE SEDITION ACT
AGAINST ALL ASSOCIATIONS, INCLUDING THE MASONS:  'THE SPIRIT OF
ASSOCIATION,' HE WARNED, 'IS A DANGEROUS THING IN A FREE GOVERNMENT,
AND OUGHT CAREFULLY TO BE WATCHED.'"  MILLER, CRISIS IN FREEDOM, 187. 

FN48  THESE CHARGES WERE MADE BY FISHER AMES IN WRITINGS PUBLISHED IN
APRIL 1799.  SEE AMES, LAOCOON, REPRINTED IN II WORKS OF FISHER AMES,
109, AT 115, 116.  SIMILAR SENTIMENTS WERE EXPRESSED BY RICHARD PETERS,
A FEDERAL DISTRICT JUDGE, IN A LETTER, DATED AUGUST 24, 1798, TO
SECRETARY OF STATE PICKERING.  JUDGE PETERS APPARENTLY THOUGHT IT
NECESSARY, FOR THE GOOD OF THE COUNTRY, "TO GET RID OF A SET OF
VILLAINS WHO ARE READY TO STRIKE WHEN THEY THINK THE CRISIS ARRIVES." 
SEE MILLER, CRISIS IN FREEDOM, 137. 

FN49  PARLIAMENTARY DEBATES, HANSARD, 1ST SERIES, 34, AT 1073.  CF.
DENNIS V. UNITED STATES, 341 U.S. 494, 510, IN WHICH THIS COURT UPHELD
CONVICTIONS FOR ADVOCACY OF OVERTHROW OF THE GOVERNMENT "AS SPEEDILY AS
CIRCUMSTANCES WOULD PERMIT." 

FN50  SEE KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36, 56
(DISSENTING OPINION); FELDMAN V. UNITED STATES, 322 U.S. 487, 501-502
(DISSENTING OPINION). 

FN51  PARLIAMENTARY DEBATES, HANSARD, 1ST SERIES, 34, AT 987. 

FN52  SEE, E.G., THE ARGUMENT OF REPRESENTATIVE HARPER ON THE FLOOR
OF THE HOUSE IN FAVOR OF THE PASSAGE OF THE SEDITION ACT: "HE HAD OFTEN
HEARD IN THIS PLACE, AND ELSEWHERE, HARANGUES ON THE LIBERTY OF THE
PRESS, AS IF IT WERE TO SWALLOW UP ALL OTHER LIBERTIES; AS IF ALL LAW
AND REASON, AND EVERY RIGHT, HUMAN AND DIVINE, WAS TO FALL PROSTRATE
BEFORE THE LIBERTY OF THE PRESS; WHEREAS, THE TRUE MEANING OF IT IS NO
MORE THAN THAT A MAN SHALL BE AT LIBERTY TO PRINT WHAT HE PLEASES,
PROVIDED HE DOES NOT OFFEND AGAINST THE LAWS, AND NOT THAT NO LAW SHALL
BE PASSED TO REGULATE THIS LIBERTY OF THE PRESS.  HE ADMITTED THAT A
LAW WHICH SHOULD SAY A MAN SHALL NOT SLANDER HIS NEIGHBOR WOULD BE
UNNECESSARY; BUT IT IS PERFECTLY WITHIN THE CONSTITUTION TO SAY, THAT A
MAN SHALL NOT DO THIS, OR THE OTHER, WHICH SHALL BE INJURIOUS TO THE
WELL BEING OF SOCIETY; IN THE SAME WAY THAT CONGRESS HAD A RIGHT TO
MAKE LAWS TO RESTRAIN THE PERSONAL LIBERTY OF MAN, WHEN THAT LIBERTY IS
ABUSED BY ACTS OF VIOLENCE ON HIS NEIGHBOR."  8 ANNALS OF CONG., 2102. 

FN53  DENNIS V. UNITED STATES, 341 U.S. 494.  SEE ALSO YATES V.
UNITED STATES, 354 U.S. 298; SCALES V. UNITED STATES, POST, P. 203;
NOTO V. UNITED STATES, POST, P. 290. 

FN54  AS THE COURT SAID IN BRIDGES V. CALIFORNIA, 314 U.S. 252, 263:
"WHAT FINALLY EMERGES FROM THE 'CLEAR AND PRESENT DANGER' CASES IS A
WORKING PRINCIPLE THAT THE SUBSTANTIVE EVIL MUST BE EXTREMELY SERIOUS
AND THE DEGREE OF IMMINENCE EXTREMELY HIGH BEFORE UTTERANCES CAN BE
PUNISHED.  THOSE CASES DO NOT PURPORT TO MARK THE FURTHERMOST
CONSTITUTIONAL BOUNDARIES OF PROTECTED EXPRESSION, NOR DO WE HERE. 
THEY DO NO MORE THAN RECOGNIZE A MINIMUM COMPULSION OF THE BILL OF
RIGHTS.  FOR THE FIRST AMENDMENT DOES NOT SPEAK EQUIVOCALLY.  IT
PROHIBITS ANY LAW 'ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS.' 
IT MUST BE TAKEN AS A COMMAND OF THE BROADEST SCOPE THAT EXPLICIT
LANGUAGE, READ IN THE CONTEXT OF A LIBERTY-LOVING SOCIETY, WILL
ALLOW."    FN55  ABRAMS V. UNITED STATES, 250 U.S. 616, 630 (HOLMES,
J., DISSENTING).  I HAVE RECENTLY EXPRESSED MY BELIEF THAT THE
"BALANCING TEST" CAN DERIVE NO SUPPORT WHATEVER FROM THE "CLEAR AND
PRESENT DANGER" TEST USED BY MR. JUSTICE HOLMES AND MR. JUSTICE
BRANDEIS.  SEE KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36, 56
(DISSENTING OPINION). 

FN56  AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 404. 

FN57  MILLER, CRISIS IN FREEDOM, 84. 

MR. JUSTICE DOUGLAS, DISSENTING. 

                                 I. 

THE SUBVERSIVE ACTIVITIES CONTROL BOARD FOUND, AND THE COURT OF
APPEALS SUSTAINED THE FINDING, THAT PETITIONER, THE COMMUNIST PARTY OF
THE UNITED STATES, IS "A DISCIPLINED ORGANIZATION" OPERATING IN THIS
NATION "UNDER SOVIET UNION CONTROL" TO INSTALL "A SOVIET STYLE
DICTATORSHIP IN THE UNITED STATES."  THOSE FINDINGS ARE BASED, I THINK,
ON FACTS; AND I WOULD NOT DISTURB THEM. 

THE OTHER OBJECTIONS MADE ARE NOT OF THE CHARACTER OF THOSE WHICH LED
US TO REVERSE AND REMAND FOR ADDITIONAL HEARINGS FIVE YEARS AGO.  THERE
WE HAD A RECORD TAINTED BY PERJURY.  COMMUNIST PARTY V. CONTROL BOARD,
351 U.S. 115, 124-125.  NO ONE - NO MATTER HOW VENAL - COULD SUFFER
PENALTIES UNDER OUR REGIME OF LAW WHERE PERJURY TAINTED THE RECORD. 
THE PRESENT ERRORS THAT ARE URGED ARE NOT OF THAT CHARACTER. 

HAD THEY APPEARED IN A NORMAL ADMINISTRATIVE HEARING AND BEEN TIMELY
CLAIMED, THEY MIGHT GIVE US PAUSE.  IF WE HAD BEFORE US THE QUESTION
WHETHER A PARTICULAR ORGANIZATION WAS, TO USE THE STATUTORY WORDS, A
"COMMUNIST-FRONT ORGANIZATION" (64 STAT. 987, 989, U.S.C. SEC.  782(4))
OR A "COMMUNIST-INFILTRATED ORGANIZATION" (68 STAT. 775, 777, 50 U.S.C.
SEC. 782(4A)) THE ERRORS URGED MIGHT LOOM LARGE.  FOR THEN THE DECISION
MIGHT TURN ON INTANGIBLES TO BE CLOSELY APPRAISED.  THE PRESENT
PROBLEM, HOWEVER, IS IN A SOMEWHAT DIFFERENT POSTURE.  WE ARE IN A
FIELD WHERE CONGRESS HAS FOUND AND DECLARED THAT THE COMMUNIST PARTY IS
"IN FACT AN INSTRUMENTALITY OF A CONSPIRACY TO OVERTHROW THE GOVERNMENT
OF THE UNITED STATES," THAT ITS "POLICIES AND PROGRAMS" ARE "SECRETLY
PRESCRIBED FOR IT BY THE FOREIGN LEADERS OF THE WORLD COMMUNIST
MOVEMENT," THAT IT IS "THE AGENCY OF A HOSTILE FOREIGN POWER."  68
STAT. 775.  THESE CONGRESSIONAL FINDINGS AMOUNT TO NO MORE THAN FACTS
OF WHICH SOME JUSTICES HAVE ALREADY TAKEN JUDICIAL NOTICE.  SEE, E.G.,
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 427 ET SEQ. (OPINION OF
MR. JUSTICE JACKSON).  THIS DOES NOT MEAN THAT ANYTHING GOES AND THAT
THE HEARINGS ARE PRO FORMA.  IT DOES SUGGEST, HOWEVER, THAT WHERE, AS
HERE, THE CASE DOES NOT TURN ON NICE NUANCES WHICH IN CLOSER CONTESTS
MIGHT HAVE TO BE CAREFULLY WEIGHED, WE SHOULD NOT PROLONG THE
ADMINISTRATIVE HEARINGS WHICH ALREADY HAVE EXTENDED A DECADE.  WITH
THIS AS A STARTING POINT, I AGREE WITH THE COURT THAT THE COURT OF
APPEALS DID NOT ERR IN OVERRULING THE OBJECTIONS BASED ON PROCEDURAL
ERRORS. 

MAY THEN THE COMMUNIST PARTY, UNDER CONTROL OF A FOREIGN POWER, BE
REQUIRED TO REGISTER? 

THE VICES OF REGISTRATION MAY BE NOT UNLIKE THOSE OF LICENSING. 
DESPITE TIMES FILM CORP. V. CHICAGO, 365 U.S. 43, I THINK LICENSING IS
AN IMPERMISSIBLE FORM OF REGULATION WHEN IT VESTS DISCRETION IN THE
AUTHORITIES TO GRANT OR WITHHOLD THE EXERCISE OF FIRST AMENDMENT RIGHTS
OR TO PERMIT THEM TO BE EXERCISED ONLY ON CONDITION.  LOVELL V.
GRIFFIN, 303 U.S. 444, 451-452.  LICENSING, LIKE A TAX PAYABLE ON THE
EXERCISE OF A FIRST AMENDMENT RIGHT (MURDOCK V. PENNSYLVANIA, 319 U.S.
105), IS THEREFORE UNCONSTITUTIONAL.  SEE THOMAS V. COLLINS, 323 U.S.
516.  YET REGISTRATION, LIKE LICENSING, MAY HAVE ASPECTS OF HARASSMENT
AND BURDEN.  THAT IS WHY WE SAID IN THOMAS V. COLLINS, SUPRA, 540: 

"IF THE EXERCISE OF THE RIGHTS OF FREE SPEECH AND FREE ASSEMBLY
CANNOT BE MADE A CRIME, WE DO NOT THINK THIS CAN BE ACCOMPLISHED BY THE
DEVICE OF REQUIRING PREVIOUS REGISTRATION AS A CONDITION FOR EXERCISING
THEM AND MAKING SUCH A CONDITION THE FOUNDATION FOR RESTRAINING IN
ADVANCE THEIR EXERCISE AND FOR IMPOSING A PENALTY FOR VIOLATING SUCH A
RESTRAINING ORDER.  SO LONG AS NO MORE IS INVOLVED THAN EXERCISE OF THE
RIGHTS OF FREE SPEECH AND FREE ASSEMBLY, IT IS IMMUNE TO SUCH A
RESTRICTION.  IF ONE WHO SOLICITS SUPPORT FOR THE CAUSE OF LABOR MAY BE
REQUIRED TO REGISTER AS A CONDITION TO THE EXERCISE OF HIS RIGHT TO
MAKE A PUBLIC SPEECH, SO MAY HE WHO SEEKS TO RALLY SUPPORT FOR ANY
SOCIAL, BUSINESS, RELIGIOUS OR POLITICAL CAUSE.  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." 

FREEDOM OF ASSOCIATION IS INCLUDED IN THE BUNDLE OF FIRST AMENDMENT
RIGHTS.  N.A.A.C.P.  V. ALABAMA, 357 U.S. 449, 460.  SO IF WE HAD ONLY
THE QUESTION WHETHER THOSE WHO BAND TOGETHER TO ESPOUSE A POLITICAL,
EDUCATIONAL, LITERARY, CIVIC, OR IDEOLOGICAL CAUSE COULD BE MADE TO
REGISTER, I WOULD PROTEST.  THE LATE ZECHARIAH CHAFEE SPOKE OF THE
DANGER IN LIMITING OUR FREEDOMS UNDER POLITICAL PRESSURES. 
"UNIVERSITIES," HE WROTE, "SHOULD NOT BE TRANSFORMED, AS IN NAZI
GERMANY, INTO LOUD-SPEAKERS FOR THE MEN WHO WIELD POLITICAL POWER." 
THE BLESSINGS OF LIBERTY (1956) 241.  THERE HAVE BEEN ATTEMPTS HERE TO
INTERFERE BY LAW IN A MYRIAD OF WAYS WITH THE SHAPING OF PUBLIC OPINION
THROUGH MANY GROUPS, ATTACKED BECAUSE THEY WERE NONCONFORMISTS OF ONE
KIND OR ANOTHER.  AS WE SAID RECENTLY, THE IDENTIFICATION OF MEMBERS OF
GROUPS AND FEAR OF REPRISAL "MIGHT DETER PERFECTLY PEACEFUL DISCUSSIONS
OF PUBLIC MATTERS OF IMPORTANCE."  TALLEY V. CALIFORNIA, 362 U.S. 60,
65.  THERE IS, IN MY VIEW, A DISABILITY ON THE PART OF GOVERNMENT TO
PROBE THE INTIMACIES OF RELATIONSHIPS IN THE MYRIAD OF LAWFUL SOCIETIES
AND GROUPS IN THIS COUNTRY.  SEE, FOR EXAMPLE, UNITED STATES V. RUMELY,
345 U.S. 41, 48, 56-58 (CONCURRING OPINION); BATES V. LITTLE ROCK, 361
U.S. 516, 527 (CONCURRING OPINION); UPHAUS V. WYMAN, 364 U.S. 388, 401,
405-408 (DISSENTING OPINION).  FROM THESE PRECEDENTS I WOULD HOPEFULLY
DEDUCE TWO PRINCIPLES.  FIRST, NO INDIVIDUAL MAY BE REQUIRED TO
REGISTER BEFORE HE MAKES A SPEECH, FOR THE FIRST AMENDMENT RIGHTS ARE
NOT SUBJECT TO ANY PRIOR RESTRAINT.  SECOND, A GROUP ENGAGED IN LAWFUL
CONDUCT MAY NOT BE REQUIRED TO FILE WITH THE GOVERNMENT A LIST OF ITS
MEMBERS, NO MATTER HOW UNPOPULAR IT MAY BE.  FOR THE DISCLOSURE OF
MEMBERSHIP LISTS MAY CAUSE HARASSMENT OF MEMBERS AND SERIOUSLY HAMPER
THEIR EXERCISE OF FIRST AMENDMENT RIGHTS.  THE MORE UNPOPULAR THE
GROUP, THE GREATER THE LIKELIHOOD OF HARASSMENT.  IN LOGIC THEN IT
MIGHT SEEM THAT THE COMMUNIST PARTY, BEING AT THE LOW TIDE OF
POPULARITY, MIGHT MAKE OUT A BETTER CASE OF HARASSMENT THAN ALMOST ANY
OTHER GROUP ON THE CONTEMPORARY SCENE. 

WE HAVE, HOWEVER, AS I HAVE SAID, FINDINGS THAT THE COMMUNIST PARTY
OF THE UNITED STATES IS "A DISCIPLINED ORGANIZATION" OPERATING IN THIS
NATION "UNDER SOVIET UNION CONTROL" WITH THE AIM OF INSTALLING "A
SOVIET STYLE DICTATORSHIP" HERE.  THESE FINDINGS ESTABLISH THAT MORE
THAN DEBATE, DISCOURSE, ARGUMENTATION, PROPAGANDA, AND OTHER ASPECTS OF
FREE SPEECH AND ASSOCIATION ARE INVOLVED.   AN ADDITIONAL ELEMENT
ENTERS, VIZ., ESPIONAGE, BUSINESS ACTIVITIES, OR THE FORMATION OF CELLS
FOR SUBVERSION, AS WELL AS THE USE OF SPEECH, PRESS, AND ASSOCIATION BY
A FOREIGN POWER TO PRODUCE ON THIS CONTINENT A SOVIET SATELLITE. 
(FN1) 

PICKETING IS FREE SPEECH PLUS (BAKERY DRIVERS LOCAL V. WOHL, 315 U.S.
769, 776-777 (CONCURRING OPINION); GIBONEY V. EMPIRE STORAGE CO., 336
U.S. 490, 497-503) AND HENCE CAN BE RESTRICTED IN ALL INSTANCES AND
BANNED IN SOME.  REGISTRATION OF THOSE WHO DISSEMINATE PROPAGANDA OF
FOREIGN ORIGIN (SEE VIERECK V. UNITED STATES, 318 U.S. 236, 251
(DISSENTING OPINION)) HAS BEEN THOUGHT TO FALL IN THE SAME CATEGORY AS
BARRING SPEECH IN PLACES THAT WILL CREATE TRAFFIC CONDITIONS (SCHNEIDER
V. STATE, 308 U.S. 147, 160; COX V. NEW HAMPSHIRE, 312 U.S. 569) OR
PROVOKE BREACHES OF THE PEACE.  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S.
568.  THOUGH THE ACTIVITIES THEMSELVES ARE UNDER THE FIRST AMENDMENT,
THE MANNER OF THEIR EXERCISE OR THEIR COLLATERAL ASPECTS FALL WITHOUT
IT. 

LIKE REASONS UNDERLIE OUR DECISIONS WHICH SUSTAIN LAWS THAT REQUIRE
VARIOUS GROUPS TO REGISTER BEFORE ENGAGING IN SPECIFIED ACTIVITIES. 
THUS LOBBYISTS WHO RECEIVE FEES FOR ATTEMPTING TO INFLUENCE THE PASSAGE
OR DEFEAT OF LEGISLATION IN CONGRESS MAY BE REQUIRED TO REGISTER. 
UNITED STATES V. HARRISS, 347 U.S. 612.  (FN2)  CRIMINAL SANCTIONS FOR
FAILURE TO REPORT AND TO DISCLOSE ALL CONTRIBUTIONS MADE TO POLITICAL
PARTIES ARE PERMITTED.  BURROUGHS V. UNITED STATES, 290 U.S. 534. 
PUBLISHERS OF NEWSPAPERS DESIRING REDUCED POSTAL RATES HAVE LONG BEEN
REQUIRED TO FILE WITH THE POSTMASTER GENERAL AND WITH THE LOCAL POST
OFFICE CERTAIN DATA CONCERNING OWNERSHIP AND CIRCULATION; AND THOSE
DISCLOSURE REQUIREMENTS HAVE BEEN SUSTAINED.  LEWIS PUBLISHING CO. V.
MORGAN, 229 U.S. 288.  IN SHORT, THE EXERCISE OF FIRST AMENDMENT RIGHTS
OFTEN INVOLVES BUSINESS OR COMMERCIAL IMPLICATIONS WHICH CONGRESS IN
ITS WISDOM MAY DESIRE TO BE DISCLOSED, JUST AS IT DID IN STRICTLY
FINANCIAL MATTERS UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF
1935.  SEE ELECTRIC BOND & SHARE CO. V. SECURITIES & EXCHANGE COMM'N,
303 U.S. 419. 

IF LOBBYISTS CAN BE REQUIRED TO REGISTER, IF POLITICAL PARTIES CAN BE
REQUIRED TO MAKE DISCLOSURE OF THE SOURCES OF THEIR FUNDS, IF THE
OWNERS OF NEWSPAPERS AND PERIODICALS MUST DISCLOSE THEIR AFFILIATES, SO
MAY A GROUP OPERATING UNDER THE CONTROL OF A FOREIGN POWER. 

THE BILL OF RIGHTS WAS DESIGNED TO GIVE FULLEST PLAY TO THE EXCHANGE
AND DISSEMINATION OF IDEAS THAT TOUCH THE POLITICS, CULTURE, AND OTHER
ASPECTS OF OUR LIFE.  WHEN AN ORGANIZATION IS USED BY A FOREIGN POWER
TO MAKE ADVANCES HERE, QUESTIONS OF SECURITY ARE RAISED BEYOND THE KEN
OF DISPUTATION AND DEBATE BETWEEN THE PEOPLE RESIDENT HERE.  ESPIONAGE,
BUSINESS ACTIVITIES, FORMULATION OF CELLS FOR SUBVERSION, AS WELL AS
THE EXERCISE OF FIRST AMENDMENT RIGHTS, ARE THEN USED TO PRY OPEN OUR
SOCIETY AND MAKE INTRUSION OF A FOREIGN POWER EASY.  THESE MACHINATIONS
OF A FOREIGN POWER ADD ADDITIONAL ELEMENTS TO FREE SPEECH JUST AS
MARCHING UP AND DOWN ADDS SOMETHING TO PICKETING THAT GOES BEYOND FREE
SPEECH. 

THESE ARE THE REASONS WHY, IN MY VIEW, THE BARE REQUIREMENT THAT THE
COMMUNIST PARTY REGISTER AND DISCLOSE THE NAMES OF ITS OFFICERS AND
DIRECTORS IS IN LINE WITH THE MOST EXACTING ADJUDICATIONS TOUCHING
FIRST AMENDMENT ACTIVITIES. 

                                       II. 

WHILE THE ACT IS PREGNANT WITH CONSTITUTIONAL QUESTIONS, I DEAL NOW
WITH ONLY ONE, VIZ., WHETHER SEC. 7 OF THE ACT IS UNCONSTITUTIONAL AND
VOID AS CONFLICTING WITH THE PROVISION AGAINST SELF-INCRIMINATION
ACCORDED BY THE FIFTH AMENDMENT. 

THE REGISTRATION STATEMENT PREPARED BY THE ATTORNEY GENERAL PURSUANT
TO SEC. 7(A) AND (B) OF THE ACT ASKS IN ITEM 2 THE NAME, ADDRESS,
POSITION, AND FUNCTIONS OF ANY INDIVIDUAL "WHO AT ANY TIME DURING THE
TWELVE MONTHS PRECEDING THE EXECUTION OF THE STATEMENT WAS AN OFFICER,
DIRECTOR, OR PERSON PERFORMING THE FUNCTIONS OF AN OFFICER OR DIRECTOR"
OF THE COMMUNIST PARTY.  ITEM 3 REQUIRES A STATEMENT OF ANY ALIAS OF
ANY PERSON LISTED IN ITEM 2.  ITEM 11 ASKS FOR THE NAME, ALIAS, AND
ADDRESS OF EACH INDIVIDUAL "WHO WAS A MEMBER OF THE ORGANIZATION AT ANY
TIME DURING THE PERIOD" OF TWELVE MONTHS PRIOR TO THE FILING OF THE
REGISTRATION STATEMENT.  THE STATEMENT MUST BE SIGNED BY THE PARTNERS,
OFFICERS, DIRECTORS, AND MEMBERS OF THE GOVERNING BODY.  28 CFR, 1960
SUPP., SEC. 11.200, FORM ISA-1. 

THOSE PROVISIONS ARE NOT CONDITIONAL.  THE GOVERNMENT WITH ALL THE
AUTHORITY IT POSSESSES HAS ORDERED THE PARTY TO REGISTER. 

THE DUTY TO DISCLOSE THE NAMES OF THE OFFICERS, DIRECTORS, AND
MEMBERS IS EXPLICIT.  THE DUTY IS TO MAKE THE DISCLOSURE HERE AND NOW. 
THE INDIVIDUALS WHO MUST MAKE THE DISCLOSURE ARE DEFINITELY DESCRIBED. 
THERE IS NO UNCERTAINTY AS TO WHAT MUST BE DONE.  THE QUESTION IS
WHETHER THE COMMAND MADE IS CONSTITUTIONAL UNDER THE FIFTH AMENDMENT. 

IF THE REQUIREMENT OF FORM ISA-1 THAT THE STATEMENT BE SIGNED "BY THE
PARTNERS, OFFICERS, AND DIRECTORS" WERE DELETED AND THE STATEMENT WAS
ALLOWED TO BE FILED BY "ANY AGENT," THE ACT OF SIGNING THAT IMPLICATES
THE PARTNER, OFFICER, OR DIRECTOR WOULD BE ELIMINATED.  IF THE COURT,
SENSITIVE TO THE HIGH ROLE PERFORMED BY THE FIFTH AMENDMENT, ALSO
DELETED THE COMPULSORY DISCLOSURE OF THE OTHERS WHOSE ASSOCIATION WITH
THE PARTY IS REQUIRED TO BE DISCLOSED WITHOUT IMMUNITY, THE PROBLEMS
PRESENTED BY THOSE DISCLOSURES WOULD DISAPPEAR.  BUT THE COURT DOES
NONE OF THESE THINGS.  IT REQUIRES OFFICERS AND DIRECTORS TO SIGN; IT
REQUIRES THAT THE NAMES OF OFFICERS, DIRECTORS, AND MEMBERS WITHIN THE
12-MONTH PERIOD BE DISCLOSED.  THUS THE QUESTION OF SELF-INCRIMINATION
OF EACH OF THOSE INDIVIDUALS IS SQUARELY PRESENTED. 

                                       III. 

FIRST AS TO THE OFFICERS, DIRECTORS, AND OTHERS WHO MUST SIGN THE
REGISTRATION STATEMENT.  THESE INDIVIDUALS, WHO COULD BE PROSECUTED AS
"ACTIVE" COMMUNIST AGENTS UNDER YATES V. UNITED STATES, 354 U.S. 298,
AND SCALES V. UNITED STATES, POST, P. 203, CANNOT, IN MY VIEW, BE
COMPELLED TO SIGN A REGISTRATION STATEMENT.  A COMPULSORY ADMISSION OF
THAT INGREDIENT OF A CRIME WOULD PLAINLY VIOLATE THE FIFTH AMENDMENT. 
IF A PERSON WHO WAS ON THE WITNESS STAND IN A COURTROOM OR APPEARING
BEFORE A CONGRESSIONAL COMMITTEE WERE ASKED WHETHER HE WAS AN OFFICER
OR DIRECTOR OF THE COMMUNIST PARTY, OUR DECISIONS IN BLAU V. UNITED
STATES, 340 U.S. 159, 161, AND QUINN V. UNITED STATES, 349 U.S. 155,
WOULD PROTECT HIM FROM SELF-INCRIMINATION.  UNDER OUR SYSTEM FEDERAL
OFFICIALS WHO DESIRE TO ESTABLISH GUILT MUST USE THE GRAND JURY TO GET
AN INDICTMENT AND A PETIT JURY TO OBTAIN CONVICTION.  THEY CANNOT
REQUIRE THE ACCUSED TO "DO THEIR JOB FOR THEM."  CHAFEE, THE BLESSINGS
OF LIBERTY (1956), P. 207.    THE CLAUSE OF THE FIFTH AMENDMENT WITH
WHICH WE ARE HERE CONCERNED PROVIDES THAT "NO PERSON  ... SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  THE
CLAUSE HAS BEEN HOSPITABLY CONSTRUED.  THE COURT SAID IN COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 562: 

"IT IS IMPOSSIBLE THAT THE MEANING OF THE CONSTITUTIONAL PROVISION
CAN ONLY BE, THAT A PERSON SHALL NOT BE COMPELLED TO BE A WITNESS
AGAINST HIMSELF IN A CRIMINAL PROSECUTION AGAINST HIMSELF.  IT WOULD
DOUBTLESS COVER SUCH CASES; BUT IT IS NOT LIMITED TO THEM.  THE OBJECT
WAS TO INSURE THAT A PERSON SHOULD NOT BE COMPELLED, WHEN ACTING AS A
WITNESS IN ANY INVESTIGATION, TO GIVE TESTIMONY WHICH MIGHT TEND TO
SHOW THAT HE HIMSELF HAD COMMITTED A CRIME.  THE PRIVILEGE IS LIMITED
TO CRIMINAL MATTERS, BUT IT IS AS BROAD AS THE MISCHIEF AGAINST WHICH
IT SEEKS TO GUARD." 

AS RECENTLY STATED BY JUDGE SAMUEL H. HOFSTADTER: 

"THE PRIVILEGE IS APPLICABLE TO CIVIL CASES, GRAND JURY PROCEEDINGS,
LEGISLATIVE INQUIRIES, AND VIRTUALLY EVERY OTHER FORM OF OFFICIAL
PROCEEDING.  IT APPLIES WHETHER THE WITNESS IS A PARTY TO THE CIVIL OR
CRIMINAL CASE OR MERELY A WITNESS.  AND IT APPLIES WHETHER THE
TESTIMONY IS DIRECTLY IN ISSUE OR IS COLLATERAL.  THE WITNESS HIMSELF
IS THE JUDGE IN EACH CASE; HE MAY NOT BE COMPELLED TO GIVE TESTIMONY
WHICH HE HIMSELF IN GOOD FAITH BELIEVES MIGHT, IN ANY MATTER WHATEVER,
PAVE THE WAY TO POSSIBLE PROSECUTION.  TO CLAIM THE PRIVILEGE REQUIRES
NO SPECIAL COMBINATION OF WORDS; THE CLAUSE IS LIBERALLY CONSTRUED TO
PROTECT THE RIGHT IT WAS INTENDED TO SECURE."  THE FIFTH AMENDMENT AND
THE IMMUNITY ACT OF 1954 (FUND FOR THE REPUBLIC, 1955), P. 10. 

HOW THEN CAN THE GOVERNMENT ASK A PERSON TO SIGN A REGISTRATION
STATEMENT WHICH MAKES ADMISSIONS THAT WOULD NOT SURVIVE CHALLENGE UNDER
THE FIFTH AMENDMENT IF ASKED ORALLY OF THE INDIVIDUALS THAT THE
DISCLOSURE IMPLICATES? 

UNITED STATES V. WHITE, 322 U.S. 694, HELD THAT THE PRIVILEGE DOES
NOT EXCUSE AN OFFICER OF AN ORGANIZATION FROM PRODUCING ITS RECORDS ON
THE GROUNDS THAT THE CONTENTS OF THE RECORDS WILL OR MAY INCRIMINATE
HIM.  AS TO THE OFFICER OR DIRECTOR, IT IS PLAIN THAT HE INCRIMINATES
HIMSELF NOT MERELY BY PRODUCING RECORDS BUT BY SIGNING AND FILING THE
REGISTRATION STATEMENT.  THE PREPARATION OF THE REGISTRATION STATEMENT
AND ITS EXECUTION ARE IN THE SAME CATEGORY AS THE GIVING OF TESTIMONY
IN THE BLAU AND QUINN CASES, IF THE FIFTH AMENDMENT IS TO HAVE
CONTINUING VITALITY.  PART OF WHAT IS TODAY REQUIRED IS THE FURNISHING
OF STATEMENTS AND ADMISSIONS FROM THE PENS OF MEN AND WOMEN WHOSE VERY
SIGNATURE MAY START THEM ON THE WAY TO PRISON.  WE MADE CLEAR IN CURCIO
V. UNITED STATES, 354 U.S. 118, THAT THE RULING IN THE WHITE CASE WAS
RESTRICTED TO THE PRODUCTION OF BOOKS AND RECORDS.  WE THERE UPHELD THE
CUSTODIAN'S PRIVILEGE AGAINST TESTIFYING AS TO THE "WHEREABOUTS OF
BOOKS AND RECORDS" WHERE THAT TESTIMONY MIGHT INCRIMINATE HIM.  WE SAID
"  ...  HE CANNOT LAWFULLY BE COMPELLED, IN THE ABSENCE OF A GRANT OF
ADEQUATE IMMUNITY FROM PROSECUTION, TO CONDEMN HIMSELF BY HIS OWN ORAL
TESTIMONY."  ID., 124. 

IT WOULD SEEM TO FOLLOW A FORTIORI THAT A CUSTODIAN WHO NEED NOT
TESTIFY CONCERNING THE WHEREABOUTS OF RECORDS, IF THAT TESTIMONY WOULD
TEND TO INCRIMINATE HIM, NEED NOT PUT INTO WRITING THE ADMISSION THAT
HE IS AN OFFICER OR DIRECTOR OF THE COMMUNIST PARTY.  WHAT MORE
INCRIMINATING ADMISSION COULD BE COMPELLED.  THIS WAS THE POSITION OF
JUDGE BAZELON IN THE COURT OF APPEALS, 96 U.S. APP. D.C. 66, 114, 223
F.2D 531, 579, AND IT SEEMS TO ME UNASSAILABLE.  SEE ALSO SHAPIRO V.
UNITED STATES, 335 U.S. 1, 27; WILSON V. UNITED STATES, 221 U.S. 361,
385. 

ELECTRIC BOND & SHARE CO. V. SECURITIES & EXCHANGE COMM'N, SUPRA, IS
IRRELEVANT TO OUR PRESENT PROBLEM UNDER THE FIFTH AMENDMENT.  NO CLAIM
WAS MADE IN THAT CASE THAT THE PREPARATION AND FILING OF A REGISTRATION
STATEMENT MIGHT IMPLICATE AN OFFICER OR DIRECTOR AND THAT THE FIFTH
AMENDMENT THEREFORE PROTECTED HIM AGAINST SIGNING UNLESS IMMUNITY WAS
GRANTED.  THE PROBLEM IN THE PRESENT CASE IS QUITE DIFFERENT.  IT
RAISES THE FOLLOWING KIND OF QUESTION:  CAN CONGRESS, WHICH HAS MADE
EMBEZZLEMENT OF NATIONAL BANK FUNDS A CRIMINAL OFFENSE, REQUIRE
EMBEZZLERS TO REGISTER WITHOUT GRANTING THEM THE FULL IMMUNITY (CF.
ULLMANN V. UNITED STATES, 350 U.S. 422) TO WHICH THEY ARE ENTITLED? 
THAT IS THE CLOSEST ANALOGY TO THE PRESENT CASE. 

THE COMPILING, THE SIGNING, AND THE FILING OF THE REGISTRATION
STATEMENT REQUIRED OF OFFICERS, DIRECTORS, AND OTHERS BY THE
REGISTRATION FORM IS A FORM OF ELICITED TESTIMONY, NOT THE SURRENDER OF
PRE-EXISTING RECORDS.  WHERE, AS HERE, SUCH DISCLOSURE WILL REVEAL
KNOWLEDGE OF AND RELATIONS WITH THE COMMUNIST PARTY, I DO NOT SEE HOW
IT CAN BE DEMANDED UNLESS IMMUNITY IS GRANTED. 

THE BILL OF RIGHTS DOES NOT GO SO FAR AS TO FORBID ALL INTERROGATION
UNDER THREAT OF PUNISHMENT.  IT DOES NOT PREVENT THE BREAKING OF MYRIAD
BONDS OF SECRECY AT THE COMMAND OF THE GOVERNMENT.  IT PROTECTS ONLY
THE INDIVIDUAL WHO HAS HIMSELF BECOME THE OBJECT OF THE GOVERNMENT'S
PUNITIVE POWERS.  FROM HIM IT REMOVES THE HUMILIATING PRESENCE OF THE
QUESTIONER.  THE POWER OF THE GOVERNMENT IS LIMITED, SO THAT IT CANNOT
PUNISH EITHER THE SILENCE OR THE PASSIVE HOSTILITY OF ONE WHO CLAIMS
THE PRIVILEGE, WHETHER HE BE A CRIMINAL OR A PROPHET OR MERELY A
BEWILDERED CITIZEN SUDDENLY CAUGHT IN THE SINISTER WEB OF SUSPICION. 

THE PRIVILEGE IS OFTEN CRITICIZED AS A SHIELD FOR WRONGDOING.  BUT
NOT EVERY HOSTILE SILENCE WHICH GREETS OFFICIAL INTERROGATION HAS ITS
BEGINNING IN WRONGDOING.  IN A NATION SUCH AS OURS THE GOVERNMENT MUST
OFTEN MEET WITH HOSTILITY; WE ARE NOT CONSTRAINED TO ADMIRE ITS
ACTIVITIES; WE ARE FREE TO DETEST THEM.  THAT FREEDOM COULD NOT LONG
REMAIN IF THE GOVERNMENT WERE FREE TO REQUIRE US TO RECOUNT ALL OUR
DOINGS.  THE GOVERNMENT MAY STILL THREATEN SILENCE WITH PRISON, BUT ITS
POWER TO DO SO STOPS SHORT WHEN INFORMATION SOUGHT IS INCRIMINATING. 
EVEN SO ARDENT AN ADVOCATE OF THE TOTALITARIAN STATE AS THOMAS HOBBES
RESPECTED THIS CORE OF PRIVACY: 

"A COVENANT NOT TO DEFEND MYSELF FROM FORCE, BY FORCE, IS ALWAYS
VOID.  FOR (AS I HAVE SHOWN BEFORE) NO MAN CAN TRANSFER OR LAY DOWN HIS
RIGHT TO SAVE HIMSELF FROM DEATH, WOUNDS, AND IMPRISONMENT, THE
AVOIDING WHEREOF IS THE ONLY END OF LAYING DOWN ANY RIGHT  ...  .  A
COVENANT TO ACCUSE ONESELF, WITHOUT ASSURANCE OF PARDON, IS LIKEWISE
INVALID.  FOR IN THE CONDITION OF NATURE, WHERE EVERY MAN IS JUDGE,
THERE IS NO PLACE FOR ACCUSATION:  AND IN THE CIVIL STATE THE
ACCUSATION IS FOLLOWED WITH PUNISHMENT, WHICH, BEING FORCE, A MAN IS
NOT OBLIGED NOT TO RESIST."  LEVIATHAN, 23 GREAT BOOKS 90. 

THE CASES DEALING WITH THE DUTY TO KEEP RECORDS (FN3) (SEE SHAPIRO V.
UNITED STATES, SUPRA) CAN BE PUT TO ONE SIDE.  UNDER THE SMITH ACT, 18
U.S.C. SEC. 2385, THE VERY SUBJECT MATTER UNDER REGULATION IS
INTERWOVEN WITH CRIMINAL ACTIVITY.  WHERE INDIVIDUALS COMPILE AND SIGN
THE REGISTRATION STATEMENT, AS THEY MUST, IT IS THE VERY MAKING OF THE
REGISTRATION STATEMENT THAT WILL INCRIMINATE THEM, NOT THE UNDERLYING
DOCUMENTS. 

SIGNING AS AN OFFICER OR DIRECTOR OF THE COMMUNIST PARTY - AN
INGREDIENT OF AN OFFENSE THAT RESULTS IN PUNISHMENT - MUST BE DONE
UNDER THE MANDATE OF LAW.  THAT IS COMPULSORY INCRIMINATION OF THOSE
INDIVIDUALS AND, IN MY VIEW, A PLAIN VIOLATION OF THE FIFTH AMENDMENT. 

IV. 

THE COMPULSORY DISCLOSURE OF THOSE WHO HAVE BEEN OFFICERS, DIRECTORS,
OR MEMBERS OF THE PARTY DURING THE LAST 12 MONTHS IS EQUALLY
OBJECTIONABLE UNDER THE FIFTH AMENDMENT.  MEMBERSHIP IN THE PARTY IS,
BY VIRTUE OF FEDERAL STATUTES, THE START (FN4) OF EVERY PROSECUTION
WHETHER IT BE FOR ACTIVE "MEMBERSHIP," AS IN SCALES V. UNITED STATES,
SUPRA, OR FOR CONSPIRACY TO TEACH THE DOCTRINE, AS IN DENNIS V. UNITED
STATES, 341 U.S. 494.  MEMBERSHIP IS A "LINK IN THE CHAIN OF EVIDENCE"
NEEDED FOR SUCH PROSECUTION, AS WE HELD IN BLAU V. UNITED STATES,
SUPRA, 161; QUINN V. UNITED STATES, SUPRA.  IT IS THEREFORE IN THE
CLASS OF DISCLOSURE WHICH WE HAVE HELD SINCE THE TIME OF CHIEF JUSTICE
MARSHALL (FN5) (SEE UNITED STATES V. BURR, 25 FED. CAS. NO. 14,692E)
COULD NOT BE DEMANDED BY REASON OF THE FIFTH AMENDMENT.  THE COMPULSORY
DISCLOSURE OF MEMBERSHIP IN THE COMMUNIST PARTY, WHICH THE BLAU AND
QUINN CASES HAVE PUT WITHIN THE PROTECTION OF THE FIFTH AMENDMENT, IS
THE NECESSARY AND IMMEDIATE EFFECT OF FILING AS A PUBLIC RECORD THE
REGISTRATION STATEMENT REQUIRED BY SEC. 7.  AS IN CASE OF OFFICERS AND
DIRECTORS WHO MUST SIGN THE REGISTRATION STATEMENT, THIS IS, IN MY
VIEW, COMPULSORY INCRIMINATION OF THE MEMBERS AND A PLAIN VIOLATION OF
THE FIFTH AMENDMENT. 

IF CONGRESS CAN THROUGH USE OF THE REGISTRATION DEVICE COMPEL
DISCLOSURE OF PEOPLE'S ACTIVITIES THAT VIOLATE FEDERAL LAWS, THE FIFTH
AMENDMENT WOULD BE CAST INTO LIMBO. 

AS I HAVE SAID, EACH PERSON REQUIRED TO BE LISTED IN THE REGISTRATION
STATEMENT, WERE HE TO BE BROUGHT BEFORE HIS INTERROGATORS, COULD NOT BE
COMPELLED TO ADMIT WHAT THE STATUTE HERE REQUIRES PETITIONER TO SET
FORTH AT LENGTH.  THE ONLY DIFFERENCE THAT EXISTS BETWEEN COMPELLING
EACH MEMBER AND OFFICER AND BETWEEN COMPELLING PETITIONER IS THE THIN
"VEIL" OF PETITIONER'S FICTITIOUS JURIDICAL PERSONALITY. 

HALE V. HENKEL, 201 U.S. 43, HELD THAT A CORPORATION COULD NOT CLAIM
A PRIVILEGE AGAINST SELF-INCRIMINATION.  THAT CASE AND OTHERS - SUCH AS
WILSON V. UNITED STATES, SUPRA, AND UNITED STATES V. WHITE, SUPRA,
WHICH I HAVE MENTIONED - HAVE IMPLEMENTED A CONSTITUTIONAL POLICY OF
PUBLICITY FOR ASSOCIATIONAL ACTIVITIES WHICH WOULD BE ABHORRENT IF
REQUIRED OF INDIVIDUALS AND IN MATTERS THAT WERE LESS CLEARLY WITHIN
THE REALM OF DAY-TO-DAY ADMINISTRATIVE REGULATION. 

THE PRESENT REQUIREMENT FOR THE DISCLOSURE OF MEMBERSHIP LISTS IS NOT
A REGULATORY PROVISION, BUT A DEVICE FOR TRAPPING THOSE WHO ARE
INVOLVED IN AN ACTIVITY WHICH, UNDER FEDERAL STATUTES, IS INTERWOVEN
WITH CRIMINALITY.  THE PRIMARY EFFECT OF THE REQUIRED REGISTRATION IS
NOT DISCLOSURE TO THE PUBLIC BUT CRIMINAL PROSECUTION.  I DO NOT SEE
HOW THE GOVERNMENT THAT HAS BRANDED AN ORGANIZATION AS CRIMINAL THROUGH
ITS JUDICIARY, (FN6) ITS LEGISLATURE, (FN7) AND ITS EXECUTIVE, (FN8)
CAN DEMAND THAT IT SUBMIT THE NAMES OF ALL ITS MEMBERS - UNLESS IT
GRANTS IMMUNITY FOR THE DISCLOSURE. 

PRIOR TO TODAY, (FN9) THE NEAREST THE COURT EVER CAME TO ALLOWING THE
REGISTRATION DEVICE TO BE USED AS A MECHANISM FOR COMPULSORY DISCLOSURE
OF CRIMINAL ACTIVITIES WAS UNITED STATES V. KAHRIGER, 345 U.S. 22.  SEE
ALSO LEWIS V. UNITED STATES, 348 U.S. 419.  GAMBLERS WERE REQUIRED TO
REGISTER WITH THE COLLECTOR OF INTERNAL REVENUE AND TO PAY AN
OCCUPATIONAL TAX.  THE DEFENSE OF THE FIFTH AMENDMENT WAS REJECTED ON
GROUNDS THAT SEEMED TO SOME OF US AT THE TIME TO BE SPECIOUS. 
REGISTRATION COULD BE REQUIRED, THE COURT HELD, BECAUSE IT PERTAINED
ONLY TO "THE BUSINESS OF WAGERING IN THE FUTURE."  UNITED STATES V.
KAHRIGER, SUPRA, 33.  THE FIFTH AMENDMENT, THE COURT SAID, "HAS
RELATION ONLY TO PAST ACTS, NOT TO FUTURE ACTS THAT MAY OR MAY NOT BE
COMMITTED."  ID., AT 32.  THE SLUICE GATES, OPENED A HAIR'S WIDTH BY
THAT CASE, ARE NOW FLUNG WIDE.  I REMAIN IN AGREEMENT WITH WHAT MR.
JUSTICE BLACK SAID IN UNITED STATES V. KAHRIGER, SUPRA, 37:  "WE HAVE A
BILL OF RIGHTS THAT CONDEMNS COERCED CONFESSIONS, HOWEVER REFINED OR
LEGALISTIC MAY BE THE TECHNIQUE OF EXTORTION." 

    V. 

IT IS SAID THAT THE PARTY HAS NO STANDING TO ASSERT THE RIGHTS OF ITS
OFFICERS, DIRECTORS OR MEMBERS. 

THE PRIVILEGE AGAINST SELF-INCRIMINATION IS A PERSONAL ONE.  IT MUST
BE CLAIMED; IT MAY BE WAIVED.   IN ORDINARY CIRCUMSTANCES, THERE IS NO
FIFTH AMENDMENT PRIVILEGE AGAINST INCRIMINATING ANOTHER.  ROGERS V.
UNITED STATES, 340 U.S. 367.  AND SEE HALE V. HENKEL, SUPRA, 69-70;
UNITED STATES V. WHITE, SUPRA, 704.  ON THE OTHER HAND, THE INTIMATE
CONNECTION BETWEEN ASSOCIATIONS AND THEIR MEMBERS HAS LONG BEEN
RECOGNIZED.  IN BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 262, MR. JUSTICE
FRANKFURTER WRITING FOR THE COURT SAID: 

"LONG AGO THIS COURT RECOGNIZED THAT THE ECONOMIC RIGHTS OF AN
INDIVIDUAL MAY DEPEND FOR THE EFFECTIVENESS OF THEIR ENFORCEMENT ON
RIGHTS IN THE GROUP, EVEN THOUGH NOT FORMALLY CORPORATE, TO WHICH HE
BELONGS." 

THE CASE CITED WAS AMERICAN FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S.
184, WHERE THE RIGHT OF A UNION TO SPEAK FOR ITS MEMBERS WAS
RECOGNIZED.  IN N.A.A.C.P. V. ALABAMA, SUPRA, THE ASSOCIATION WAS
ALLOWED TO ASSERT ITS MEMBERS' CONSTITUTIONAL RIGHTS: 

"IF PETITIONER'S RANK-AND-FILE MEMBERS ARE CONSTITUTIONALLY ENTITLED
TO WITHHOLD THEIR CONNECTION WITH THE ASSOCIATION DESPITE THE
PRODUCTION ORDER, IT IS MANIFEST THAT THIS RIGHT IS PROPERLY ASSERTABLE
BY THE ASSOCIATION.  TO REQUIRE THAT IT BE CLAIMED BY THE MEMBERS
THEMSELVES WOULD RESULT IN NULLIFICATION OF THE RIGHT AT THE VERY
MOMENT OF ITS ASSERTION.  PETITIONER IS THE APPROPRIATE PARTY TO ASSERT
THESE RIGHTS, BECAUSE IT AND ITS MEMBERS ARE IN EVERY PRACTICAL SENSE
IDENTICAL."  ID., 459.    WE DEALT THERE WITH A NEGRO GROUP ASSERTING
THE FIRST AMENDMENT RIGHTS OF ITS MEMBERS.  THE MEMBERS, IT WAS ARGUED,
WOULD BE HARASSED IF THEIR NAMES WERE DISCLOSED AND THAT HARASSMENT
WOULD ABRIDGE THEIR FIRST AMENDMENT RIGHTS.  WE AGREED WITH THAT VIEW,
ID., 460-462, AND HELD THAT N.A.A.C.P. COULD NOT BE FORCED TO DISCLOSE
TO ALABAMA ITS MEMBERSHIP LISTS.  WE DID NOT, I ASSUME, WRITE A RULE
GOOD FOR THAT DAY ONLY.  NOR DID I THINK WE WROTE ONLY FOR NEGRO
GROUPS. 

NOR DID I THINK WE RESTRICTED THE ASSERTION BY A GROUP OF THE RIGHTS
OF ITS MEMBERS TO THOSE ASSERTING FIRST AMENDMENT RIGHTS.  IN ANTI
FASCIST REFUGEE COMMITTEE V. MCGRATH, SUPRA, THREE GROUPS, UNDER
CIRCUMSTANCES SOMEWHAT SIMILAR TO THE PRESENT CASE, CLAIMED THE RIGHT
TO INVOKE THEIR MEMBERS' RIGHTS UNDER BOTH THE FIRST AND THE FIFTH
AMENDMENTS.  THEY HAD BEEN DESIGNATED AS "COMMUNIST" BY THE ATTORNEY
GENERAL; AND THE IMPACT OF THAT CLASSIFICATION ON THE STATUS OF THE
MEMBERS AS FEDERAL EMPLOYEES WAS STRIKING AND IMMEDIATE.  COULD THAT
CLASSIFICATION BE CONSTITUTIONALLY MADE WITHOUT A HEARING?  THE
CONSENSUS OF OPINION AMONG THOSE WHO REACHED THE ISSUE SEEMED CLEAR -
THAT THE GROUPS COULD RAISE OBJECTIONS THAT INVOLVED THE CONSTITUTIONAL
RIGHTS OF THEIR MEMBERS.  THE VIEW WAS FORCEFULLY ASSERTED BY MR.
JUSTICE JACKSON.  ID., 186.  AS MR. JUSTICE FRANKFURTER STATED: 

"DESIGNATION WORKS AN IMMEDIATE SUBSTANTIAL HARM TO THE REPUTATION OF
PETITIONERS.  THE THREAT WHICH IT CARRIES FOR THOSE MEMBERS WHO ARE, OR
PROPOSE TO BECOME, FEDERAL EMPLOYEES MAKES IT NOT A FINICKY OR TENUOUS
CLAIM TO OBJECT TO THE INFERENCE WITH THEIR OPPORTUNITIES TO RETAIN OR
SECURE SUCH EMPLOYEES AS MEMBERS."  ID., 159. 

THAT WAS MY OWN VIEW THEN, ID., 174-175, AND NOW. 

THIS ANALYSIS HAS SUPPORT IN A LONG LINE OF CASES WHERE THE COURT HAS
ALLOWED A TO ASSERT B'S CONSTITUTIONAL RIGHT IN SEEKING REDRESS OR
PREVENTION OF HARM TO HIMSELF.  THE ROOT OF THIS DOCTRINE IS FOUND IN
EQUITY.  IN TRUAX V. RAICH, 239 U.S. 33, AN INJUNCTION HAD BEEN SOUGHT
BY AN EMPLOYEE WHO WAS AN ALIEN, SEEKING TO RESTRAIN ENFORCEMENT OF AN
ARIZONA STATUTE.  THE RIGHT INVOKED WAS THE EMPLOYEE'S OWN RIGHT UNDER
THE FOURTEENTH AMENDMENT.  BUT THE STATUTE IMPOSED NO PENALTY ON THE
ALIEN FOR WORKING.  IT PENALIZED HIS EMPLOYER FOR HIRING HIM. 
NEVERTHELESS, THE INJUNCTION ISSUED.  IN PIERCE V. SOCIETY OF SISTERS,
268 U.S. 510, THE PROPRIETORS OF A PRIVATE SCHOOL, TO PROTECT THEIR
MONETARY INTEREST IN PRESERVING THE SCHOOL, WERE ALLOWED TO ASSERT
RIGHTS OF PARENTS IN THE EDUCATION OF THEIR CHILDREN.  SIMILARLY, A
WHITE VENDOR WAS ALLOWED TO ASSERT HIS NEGRO VENDEE'S RIGHTS IN
ENFORCING A CONTRACT TO SELL REAL PROPERTY, SUBJECT TO A RESTRICTIVE
CITY ORDINANCE, IN BUCHANAN V. WARLEY, 245 U.S. 60.  SEE ALSO
INTERNATIONAL HARVESTER V. DEPARTMENT OF TAXATION, 322 U.S. 435;
BARROWS V. JACKSON, 346 U.S. 249; BATES V. LITTLE ROCK, 361 U.S. 516. 

BRYANT V. ZIMMERMAN, 278 U.S. 63, WHICH SUSTAINED A STATE LAW
REQUIRING THE KU KLUX KLAN TO FILE ITS MEMBERSHIP LISTS WITH STATE
OFFICIALS WAS EXPLAINED IN N.A.A.C.P. V. ALABAMA, SUPRA, 465, AS A CASE
INVOLVING AN ORGANIZATION WHOSE ACTS WERE "UNLAWFUL INTIMIDATION AND
VIOLENCE," NOT FIRST AMENDMENT ACTIVITIES.  THAT EXPLANATION WAS
ADEQUATE FOR THAT CASE AS ONLY FIRST AMENDMENT RIGHTS WERE BEING
CONSIDERED IN N.A.A.C.P. V. ALABAMA, SUPRA.  NO FIFTH AMENDMENT
QUESTION (FN10) WAS, HOWEVER, RAISED IN BRYANT V. ZIMMERMAN, SUPRA. 

PETITIONER, THE COMMUNIST PARTY, SEEKS IN THIS CASE TO ASSERT THAT
THE STATUTE UNDER WHICH IT IS ORDERED TO REGISTER IS UNCONSTITUTIONAL,
BECAUSE IT WILL HAVE THE NECESSARY EFFECT OF DEPRIVING MEMBERS OF THEIR
PRIVILEGE AGAINST BEING COMPELLED TO REVEAL THEIR CONNECTION WITH THE
PARTY.  THIS IS NOT A CASE, AS THE MAJORITY OPINION ADMITS, LIKE UNITED
STATES V. SULLIVAN, 274 U.S. 259, WHERE A TAXPAYER, BECAUSE HE CLAIMED
THE PRIVILEGE AGAINST SELF-INCRIMINATION WITH RESPECT TO THE SOURCE OF
SOME OF HIS INCOME, ARGUED THAT HE WAS WHOLLY EXCUSED FROM FILING A TAX
RETURN.  NOR IS THIS A CASE WHERE "ONE WHO IS REQUIRED TO ASSERT THE
PRIVILEGE AGAINST SELF-INCRIMINATION MAY THEREBY AROUSE THE SUSPICIONS
OF PROSECUTING AUTHORITIES."  FOR HERE, IF AN INDIVIDUAL WERE TO
ATTEMPT TO CLAIM THE PRIVILEGE AGAINST FILING FOR THE PARTY, HE WOULD
ADMIT AN INGREDIENT OF A CRIME, NAMELY, HIS CONNECTION WITH THE PARTY. 

CLEARLY, THIS IS A SITUATION IN WHICH ONLY THE PARTY CAN EFFECTIVELY
ASSERT THE PRIVILEGE OF ITS OFFICERS, DIRECTORS, AND MEMBERS.  THIS IS
THE TEACHING OF N.A.A.C.P. V. ALABAMA, SUPRA, AND OF THE OPINIONS OF
MR. JUSTICE JACKSON, MR. JUSTICE FRANKFURTER AND MYSELF IN ANTI-FASCIST
REFUGEE COMMITTEE V. MCGRATH, SUPRA, AND OF THE OTHER CASES DISCUSSED
ABOVE.  WHEN WE REJECT THOSE PRECEDENTS, WE CREATE A SPECIAL RULE FOR
THIS DAY ONLY. 

THE PARTY IS THE PROPER PARTY TO RAISE THE OBJECTION, BECAUSE NO ONE
ELSE CAN RAISE IT EFFECTIVELY.  THE COMMUNITY OF INTEREST BETWEEN THE
PARTY AND ITS MEMBERS IS INDEED CLOSELY ANALOGOUS TO THE COMMUNITY OF
INTEREST BETWEEN A CORPORATION AND ITS STOCKHOLDERS.  SEE STEVENS,
CORPORATIONS (1949), PP. 788-789.  SINCE THE COMMAND TO REGISTER CANNOT
BE SEPARATED FROM THE MEANS OF REGISTRATION, AN ATTACK IS PROPERLY MADE
ON THE INCRIMINATING FEATURES OF THE STATUTE BY PETITIONER WHO IS
COMMANDED TO REGISTER.  SEE THE EMPLOYERS' LIABILITY CASES, 207 U.S.
463, 500-502; UNITED STATES V. REESE, 92 U.S. 214, 221.  CF. ELECTRIC
BOND & SHARE CO. V. SECURITIES & EXCHANGE COMM'N, SUPRA. 

IN BOYD V. UNITED STATES, 116 U.S. 616, 638, A COURT ORDER TO PRODUCE
AN INVOICE, CLAIMED TO BE PRIVILEGED UNDER THE FIFTH AMENDMENT, WAS
HELD TO BE UNCONSTITUTIONAL AND VOID.  ONE NEED NOT, I HAVE ASSUMED,
OBEY AN UNCONSTITUTIONAL COMMAND AND RAISE HIS CONSTITUTIONAL OBJECTION
ONLY ON COMPLIANCE.  OF COURSE, DEFIANCE OF A GOVERNMENTAL COMMAND
BECAUSE IT IS UNCONSTITUTIONAL IS DEEP IN OUR TRADITIONS.  THOMAS V.
COLLINS, SUPRA; STAUB V. CITY OF BAXLEY, 355 U.S. 313.  YET HERETOFORE
A PERSON CLAIMING THAT A DISCLOSURE WOULD VIOLATE HIS FIFTH AMENDMENT
RIGHTS NEED NOT FIRST TENDER THE INFORMATION CLAIMED TO BE PRIVILEGED. 
A PERSON ASKED WHETHER HE IS A MEMBER OF THE COMMUNIST PARTY CAN INVOKE
THE FIFTH AMENDMENT AND REFUSE TO REPLY SINCE UNDER EXISTING FEDERAL
LAWS THE ANSWER WOULD TEND TO INCRIMINATE HIM.  QUINN V. UNITED STATES,
SUPRA, 162; BLAU V. UNITED STATES, SUPRA, 161.  THE ANSWERS NOW
DEMANDED BY THE REGISTRATION FORM AND THE REGULATIONS REQUIRE PRECISELY
THE KIND OF ANSWERS WE HELD PROTECTED AGAINST SELF-INCRIMINATION IN THE
QUINN AND BLAU CASES. 

                                       VI. 

THE FACT THAT THERE MAY BE OTHER TIMES WHEN THE ISSUE MAY BE RAISED -
AS FOR EXAMPLE IF A REGISTRATION STATEMENT IS NOT FILED AND OFFICERS OR
MEMBERS ARE PROSECUTED FOR THAT DEFAULT UNDER SEC. 15 OF THE ACT -
SEEMS IMMATERIAL.  THIS CASE IS NOT IN THE CATEGORY OF THOSE CHALLENGES
OF A LAW MADE BEFORE IT IS KNOWN HOW AND IN WHAT MANNER IT WILL BE
ENFORCED AND APPLIED.  CF.  RESCUE ARMY V. MUNICIPAL COURT, 331 U.S.
549; FEDERATION OF LABOR V. MCADORY, 325 U.S. 450.  A FINAL ORDER TO
REGISTER UNDER THE ACT HAS BEEN ISSUED.  THE DISCLOSURE REQUIREMENTS
ARE CLEAR AND SPECIFIC.  NOW IS THE TIME TO RAISE FIFTH AMENDMENT
QUESTIONS.  TO RELEGATE THE PARTIES TO ANOTHER TIME AND PLACE IN ORDER
TO RAISE THOSE CONSTITUTIONAL OBJECTIONS IS TO FASHION AN EXTREMELY
HARSH RULE TO FIT THE COMMUNIST PARTY BUT NO ONE ELSE.  DEFAULT MEANS
THE RISK OF CRIMINAL PROSECUTION.  NO PERSON, I THINK, SHOULD BE FORCED
TO WAIT UNTIL HIS DEFAULT TO RAISE HIS CONSTITUTIONAL OBJECTION.  THE
GREAT INJUSTICE IN WHAT WE DO TODAY LIES IN COMPELLING THE OFFICIALS OF
THE PARTY TO VIOLATE THIS LAW BEFORE THEIR CONSTITUTIONAL CLAIMS CAN BE
HEARD AND DETERMINED.  NEVER BEFORE, I BELIEVE, HAVE WE FORCED THAT
CHOICE ON A LITIGANT.  SEE TERRACE V. THOMPSON, 263 U.S. 197, 216.  THE
MODERN TREND HAS INDEED BEEN TO PROTECT A PERSON AGAINST PROSECUTIONS
THAT MAY INVOLVE INFRINGEMENTS OF HIS CONSTITUTIONAL RIGHTS.  AT TIMES
EVEN EQUITY HAS STEPPED IN.  SEE PHILADELPHIA CO. V. STIMSON, 223 U.S.
605.  THE PREVENTION OF PERIL AND INSECURITY, INVOLVED IN THE SANCTIONS
OF SOME LAWS, HAS LED TO A GENEROUS USE OF THE DECLARATORY JUDGMENT
PROCEDURE SO THAT A PERSON NEED NOT RUN THE GANTLET OF A CRIMINAL
PROSECUTION TO GET AN ADJUDICATION OF HIS RIGHTS.  SEE RAILWAY MAIL
ASSN. V. CORSI, 326 U.S. 88; UNITED PUBLIC WORKERS V. MITCHELL, 330
U.S. 75, 91-94.  CF. MCGRATH V. KRISTENSEN, 340 U.S. 162.  THE ORDER
REQUIRING REGISTRATION REQUIRES DISCLOSURE; THE CONSTITUTIONALITY OF
THAT DISCLOSURE REQUIREMENT IS BEFORE US HERE AND NOW.  THIS CASE
PRESENTS THE ONLY EFFECTIVE OPPORTUNITY TO SECURE THE BENEFITS OF THE
FIFTH AMENDMENT GUARANTEE.  INDEED, IF THE QUESTION WERE NOT RAISED
NOW, THE STRICT RULE OF ROGERS V. UNITED STATES, SUPRA, MIGHT MEAN THAT
THE QUESTION HAD BEEN WAIVED. 

                    VII. 

MY CONCLUSION IS THAT WHILE THE COMMUNIST PARTY CAN BE COMPELLED TO
REGISTER, NO ONE ACTING FOR IT CAN BE COMPELLED TO SIGN A STATEMENT
THAT HE IS AN OFFICER OR DIRECTOR NOR TO DISCLOSE THE NAMES OF ITS
OFFICERS, DIRECTORS, OR MEMBERS - UNLESS THE REQUIRED IMMUNITY IS
GRANTED.  WHY THEN, ONE MAY ASK, DO WE HAVE A REGISTRATION LAW? 
CONGRESS (PAST OR PRESENT) IS ATTEMPTING TO HAVE ITS CAKE AND EAT IT
TOO.  IN MY VIEW CONGRESS CAN REQUIRE FULL DISCLOSURE OF ALL THE
PARAPHERNALIA THROUGH WHICH A FOREIGN DOMINATED AND CONTROLLED
ORGANIZATION SPREADS PROPAGANDA, ENGAGES IN AGITATION, OR PROMOTES
POLITICS IN THIS COUNTRY.  BUT THE FIFTH AMENDMENT BARS CONGRESS FROM
REQUIRING FULL DISCLOSURE BY ONE ACT AND BY ANOTHER ACT MAKING THE
FACTS ADMITTED OR DISCLOSED UNDER COMPULSION THE INGREDIENTS OF A
CRIME. 

THERE IS A GIVING OF EVIDENCE BY THE FILING OF A REGISTRATION.  ITS
FILING IS THE EQUIVALENT OF OFFICIALS TESTIFYING IN INVESTIGATIONS
CONDUCTED BY THE EXECUTIVE OR LEGISLATIVE BRANCH.  IT IS COMPULSORY
DISCLOSURE OF EVIDENCE WHICH LINKS OFFICERS, DIRECTORS, AND MEMBERS OF
THE GROUP WITH A CRIME.  FORCE AND COMPULSION ARE OUTLAWED TECHNIQUES
FOR FEDERAL LAW ENFORCEMENT.  COERCED CONFESSIONS ARE TABOO BECAUSE OF
THE LONG BITTER EXPERIENCE OF MINORITIES IN TRYING TO MAINTAIN THEIR
FREEDOM UNDER HOSTILE REGIMES.  OUR CONSTITUTION PROTECTS ALL
MINORITIES, NO MATTER HOW DESPISED THEY ARE. 

ACCORDINGLY, I DISSENT. 

FN1  FOR ACCOUNTS OF THE ATTEMPTS OF COMMUNISTS TO INFILTRATE
AMERICAN TRADE UNIONS SEE S. DOC. NO. 89, 82D CONG., 1ST SESS.; TAFT,
THE STRUCTURE AND GOVERNMENT OF LABOR UNIONS (1954), PP. 19 ET SEQ.;
MURRAY, AMERICAN LABOR AND THE THREAT OF COMMUNISM (1951), 274 ANNALS
AM. ACAD.  POL.  & SOC. SCI.  125; PASCHELL AND THEODORE, ANTI
COMMUNIST PROVISIONS IN UNION CONSTITUTIONS (1954), 77 MONTHLY LAB. 
REV.  1097. 

ERIC SEVAREID WRITING IN THE WASHINGTON POST FOR JANUARY 15, 1961,
SAID: 

"AMERICANS GET TOO HYSTERICAL ABOUT THE MARXISTS IN THEIR MIDST. 
AMERICANS DO, CONSIDERING THAT THERE ARE SO FEW.  BUT I NOTICE THAT IT
IS THE HARD CORE OF MARXISTS WHO NOW THREATEN TO SPLIT BELGIUM IN TWO;
THAT IT WAS THE HARD CORE OF MARXISTS WHO DROVE THE BRITISH LABOR PARTY
DOWN THE OFFICIAL POLICY LINE OF NEUTRALISM." 

FN2  THE DISSENTS IN THAT CASE WERE ON GROUNDS NOT MATERIAL TO THE
BARE ISSUE OF REGISTRATION NOW BEFORE US.  THE CONCEALMENT OF THE MAIN
INTERESTS BEHIND LEGISLATIVE PROPOSALS HAS BEEN CONSPICUOUS.   THE
EXAMPLE OF THE AMERICAN FAIR TRADE LEAGUE - CONTROLLED BY MANUFACTURERS
BUT PURPORTING TO REPRESENT RETAILERS ONLY - IS TOLD IN FEDERAL TRADE
COMMISSION, REPORT ON RESALE PRICE MAINTENANCE (1945), PP. 43-48. 

FN3  SEE MELTZER, REQUIRED RECORDS, THE MCCARRAN ACT, AND THE
PRIVILEGE AGAINST SELF-INCRIMINATION, 18 U. OF CHI.  L. REV. 687, 719
728. 

FN4  IT IS ALSO THE STARTING POINT FOR CERTAIN OTHER QUASI-PENAL
DISABILITIES, INCLUDING THE ROUNDUP OF THOSE WHO MAY BE PUT IN
DETENTION CAMPS BY VIRTUE OF 50 U.S.C. SECS. 812-814. 

FN5  IN ANSWERING A CLAIM OF THE PROSECUTION THAT A WITNESS CANNOT
REFUSE TO ANSWER UNLESS THE ANSWER, UNCONNECTED WITH OTHER TESTIMONY,
WOULD BE SUFFICIENT TO CONVICT HIM OF A CRIME, CHIEF JUSTICE MARSHALL
SAID: 

"THIS WOULD BE RENDERING THE RULE ALMOST PERFECTLY WORTHLESS.  MANY
LINKS FREQUENTLY COMPOSE THAT CHAIN OF TESTIMONY WHICH IS NECESSARY TO
CONVICT ANY INDIVIDUAL OF A CRIME.  IT APPEARS TO THE COURT TO BE THE
TRUE SENSE OF THE RULE THAT NO WITNESS IS COMPELLABLE TO FURNISH ANY
ONE OF THEM AGAINST HIMSELF.  IT IS CERTAINLY NOT ONLY A POSSIBLE BUT A
PROBABLE CASE THAT A WITNESS, BY DISCLOSING A SINGLE FACT, MAY COMPLETE
THE TESTIMONY AGAINST HIMSELF, AND TO EVERY EFFECTUAL PURPOSE ACCUSE
HIMSELF AS ENTIRELY AS HE WOULD BY STATING EVERY CIRCUMSTANCE WHICH
WOULD BE REQUIRED FOR HIS CONVICTION.  THAT FACT OF ITSELF MIGHT BE
UNAVAILING, BUT ALL OTHER FACTS WITHOUT IT WOULD BE INSUFFICIENT. 
WHILE THAT REMAINS CONCEALED WITHIN HIS OWN BOSOM HE IS SAFE; BUT DRAW
IT FROM THENCE, AND HE IS EXPOSED TO A PROSECUTION.  THE RULE WHICH
DECLARES THAT NO MAN IS COMPELLABLE TO ACCUSE HIMSELF WOULD MOST
OBVIOUSLY BE INFRINGED BY COMPELLING A WITNESS TO DISCLOSE A FACT OF
THIS DESCRIPTION. 

"WHAT TESTIMONY MAY BE POSSESSED, OR IS ATTAINABLE, AGAINST ANY
INDIVIDUAL THE COURT CAN NEVER KNOW.  IT WOULD SEEM, THEN, THAT THE
COURT OUGHT NEVER TO COMPEL A WITNESS TO GIVE AN ANSWER WHICH DISCLOSES
A FACT THAT WOULD FORM A NECESSARY AND ESSENTIAL PART OF A CRIME WHICH
IS PUNISHABLE BY THE LAWS."  25 FED. CAS., AT 40. 

FN6  SEE BARENBLATT V. UNITED STATES, 360 U.S. 109, 128. 

FN7  SEE COMMUNIST CONTROL ACT OF 1954, SEC. 2, 68 STAT. 775, 50
U.S.C. SEC. 841. 

FN8  SEE LIST OF ORGANIZATIONS, APP. A., 5 CFR, PART 210 (1949 ED.);
ANTI-FACIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 124-129. 

FN9  SECTION 6 OF THE MANN ACT (36 STAT. 825, 827, 18 U.S.C. SEC.
2424) PROVIDES THAT ANYONE HARBORING AN ALIEN WOMAN IN A HOUSE OF
PROSTITUTION MUST REGISTER.  THERE IS NO REQUIRED FORM - MERELY A
STATEMENT IN WRITING GIVING THE FOLLOWING INFORMATION:  THE NAME OF THE
WOMAN, THE PLACE WHERE SHE IS KEPT, ALL OF THE FACTS AS TO THE DATE OF
HER ENTRY INTO THE UNITED STATES, THE PORT OF ENTRY, HER AGE,
NATIONALITY, PARENTAGE, AND ALL FACTS CONCERNING HER PROCURATION TO
COME TO THIS COUNTRY WITHIN THE KNOWLEDGE OF THE PERSON REQUIRED TO
FURNISH THE STATEMENT.  ONE WHO FILES IS IMMUNE FROM PROSECUTION BY THE
UNITED STATES FOR ANYTHING REPORTED IN THE REGISTRATION STATEMENT.  SEE
UNITED STATES V. MACK, 112 F.2D 290, 292.  BUT THIS PROVISION WAS HELD
IN VIOLATION OF THE FIFTH AMENDMENT IN UNITED STATES V. LOMBARDO, 228
F. 980, AFF'D ON OTHER GROUNDS, 241 U.S. 73, BECAUSE THE IMMUNITY
EXTENDED ONLY TO FEDERAL, NOT STATE PROSECUTIONS.    FN10  THE COURT
HAD HELD YEARS EARLIER IN TWINING V. NEW JERSEY, 211 U.S. 78, THAT THE
FIFTH AMENDMENT WAS NOT APPLICABLE TO THE STATES.  AND SEE JACK V.
KANSAS, 199 U.S. 372, HOLDING THAT IF IMMUNITY FROM STATE PROSECUTION
WERE GRANTED, THE DEFENSE THAT IT OFFERED NO IMMUNITY FROM FEDERAL
PROSECUTION WOULD HAVE BEEN OF NO AVAIL. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING IN
PART. 

I AGREE WITH THE COURT AND WITH MR. JUSTICE DOUGLAS THAT THE ORDER
REQUIRING THAT THE PARTY REGISTER AND DISCLOSE ITS OFFICERS AND MEMBERS
IS NOT CONSTITUTIONALLY INVALID AS AN INVASION OF THE RIGHTS OF FREEDOM
OF ADVOCACY AND ASSOCIATION GUARANTEED BY THE FIRST AMENDMENT TO
COMMUNISTS AS WELL AS TO ALL OTHERS. 

I ALSO SHARE THE COURT'S VIEW THAT WE ARE NOT CALLED UPON IN THIS
CASE TO DECIDE THE CONSTITUTIONALITY OF THE VARIOUS DUTIES AND
SANCTIONS ATTACHING TO THE PARTY, AND TO INDIVIDUAL MEMBERS, ONCE
ORDERS TO REGISTER BECOME FINAL.  WE ARE REQUIRED BY THIS CASE TO
DECIDE ONLY THE VALIDITY OF THE ORDER REQUIRING THE PETITIONER TO
REGISTER IN ACCORDANCE WITH SEC. 7 OF THE ACT AS IMPLEMENTED BY THE
REGULATIONS AND FORM ISA-1 OF THE ATTORNEY GENERAL.  WE SHOULD PROPERLY
REACH AT THIS TIME ONLY SUCH CONSTITUTIONAL QUESTIONS AS NECESSARILY
RELATE TO THE REQUIREMENTS GOVERNING REGISTRATION. 

THE QUESTIONS IN ADDITION TO THOSE UNDER THE FIRST AMENDMENT WHICH
SEEM TO ME MOST NEARLY WITHIN THE SPHERE OF PERMISSIBLE CONSTITUTIONAL
ADJUDICATION IN THIS PROCEEDING ARISE FROM THE INTERACTION OF THE
REGISTRATION REQUIREMENTS WITH THE CRIMINAL STATUTES UNDER WHICH
COMMUNIST PARTY MEMBERSHIP IS IMPLICATED.  THIS INTERPLAY POSES THE
QUESTION WHETHER THE REGISTRATION REQUIREMENTS VIOLATE THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION. 

I DO NOT BELIEVE THAT ALL OF THE SELF-INCRIMINATION QUESTIONS RAISED
BY THE REGISTRATION PROVISIONS ARE PROPERLY ADJUDICABLE NOW.  SOME MAY
BE BETTER LEFT FOR SUBSEQUENT ADJUDICATION AS THE NECESSITY ARISES. 
FOR EXAMPLE, WE NEED NOT DECIDE NOW, I THINK, THE CONSTITUTIONALITY OF
THE PROVISION OF SEC. 8 FOR THE SELF-REGISTRATION OF INDIVIDUAL
MEMBERS.  THAT PROVISION BECOMES OPERATIVE ONLY UPON THE FAILURE OF THE
PETITIONER, OR ITS OFFICIALS, TO LIST MEMBERS IN EFFECTING ITS
REGISTRATION, PURSUANT TO A FINAL ORDER; THE GOVERNMENT'S BRIEF
OBSERVES THAT THE CRIMINAL SANCTION AGAINST A MEMBER ARISING FROM
NONREGISTRATION MUST BE PRECEDED BY A FINAL ORDER OF THE SUBVERSIVE
ACTIVITIES CONTROL BOARD DIRECTING HIM TO REGISTER.  SEC.  15(A)(2). 
WE CANNOT KNOW AT THIS TIME THE POSTURE IN WHICH THE CASE WILL APPEAR
WHEN A MEMBER COMES UNDER AN ENFORCEABLE DUTY TO REGISTER, IF HE EVER
DOES.  I ALSO LAY ASIDE THE REQUIREMENTS OF SEC. 7(H), AND ITS
IMPLEMENTING REGULATION, 28 CFR SEC. 11.205, THAT PARTY OFFICIALS
EFFECT THE REGISTRATION OF THE ORGANIZATION IF THE ORGANIZATION FAILS
TO REGISTER ITSELF WITHIN 30 DAYS OF A FINAL ORDER.  THAT DUTY,
ENFORCEABLE BY CRIMINAL SANCTIONS AGAINST THE OFFICIALS, ARISES ONLY IN
THE CONTINGENCY OF NONREGISTRATION BY PETITIONER IN ACCORDANCE WITH THE
PRESENT ORDER.  HERE AGAIN THE SITUATION MAY NOT ARISE.  I ASSUME THAT
THE OPPORTUNITY OF THE OFFICIALS TO RAISE THE SAME OBJECTIONS IS NOT
IRREVOCABLY LOST IF WE DO NOT CONSIDER THEM NOW.  NOR, FINALLY, DO I
NOW CONCERN MYSELF WITH WHETHER THE PARTY MAY INTERPOSE THE
CONSTITUTIONAL PRIVILEGE OF ITS MEMBERS BECAUSE OF THE NATURE OF THE
INFORMATION ABOUT THEM REQUIRED TO BE SUPPLIED TO COMPLETE THE
REGISTRATION STATEMENT AS DESCRIBED IN THE ATTORNEY GENERAL'S FORM ISA
1.  SECTION 7(D) REQUIRES THAT THE REGISTRATION STATEMENT ACCOMPANYING
THE REGISTRATION SHALL PROVIDE SUCH INFORMATION AS THE NAMES AND
ADDRESSES OF MEMBERS, AND THEIR PAST AND PRESENT ALIASES, AS WELL AS
INFORMATION ABOUT THE OFFICERS AND ACTIVITIES OF THE ORGANIZATION.  THE
ATTORNEY GENERAL'S REGULATIONS AND FORM ISA-1 IMPLEMENT THIS
REQUIREMENT. 

BUT I DO THINK WE MUST REACH ONE ISSUE OF SELF-INCRIMINATION, NAMELY,
WHETHER THE REQUIREMENTS OF SEC. 7(D) AS SPELLED OUT IN THE ATTORNEY
GENERAL'S REGULATIONS AND FORM ISA-1 ARE VOID AS NECESSARILY
CONFLICTING WITH THE FIFTH AMENDMENT PRIVILEGE OF THE PARTY OFFICIALS
WHO ARE CHARGED WITH THE DUTIES NECESSARY TO COMPLETE THE PARTY'S
REGISTRATION.  THE STATUTE, THE REGULATIONS AND THE FORM TOGETHER
CLEARLY REQUIRE THAT THE REGISTRATION STATEMENT SHALL BE COMPLETED,
SIGNED AND FILED BY DESIGNATED OFFICIALS.  THESE OFFICIALS ARE THE
"PARTNERS, OFFICERS AND DIRECTORS, INCLUDING THE MEMBERS OF THE
GOVERNING BODY OF THE ORGANIZATION"; THEY ARE EXPLICITLY REQUIRED BY
THE FORM TO SIGN THE COMPLETED STATEMENT AND VOUCHSAFE THEIR
FAMILIARITY WITH, AND THE ACCURACY OF, ITS CONTENTS.  WHETHER THESE
OFFICIALS, CONSISTENTLY WITH THE FIFTH AMENDMENT PRIVILEGE, CAN BE
REQUIRED TO COMPLETE, SIGN AND FILE THE STATEMENT IS A SERIOUS
CONSTITUTIONAL QUESTION.  THESE REQUIREMENTS ARE IN EFFECT AN INQUIRY
INTO THE STATUS OF OFFICERSHIP AND KNOWLEDGE OF PARTY ACTIVITIES OF THE
SIGNATORIES.  UNDER TODAY'S DECISION IN SCALES V. UNITED STATES, POST,
P. 203, THE ANSWERS TO SUCH AN INQUIRY MIGHT WELL IMPLICATE THE
OFFICIALS IN CRIMINALITY IN VIOLATION OF SEVERAL FEDERAL STATUTES. 

I BELIEVE THAT THE CONSTITUTIONAL VALIDITY OF THE INQUIRY THAT I FIND
IMPLICIT IN THESE REQUIREMENTS IS RIPE FOR ADJUDICATION NOW.  I READ
THE COURT'S OPINION AS SAYING THAT THERE IS NO FATAL BAR TO
ADJUDICABILITY OF THE QUESTION MERELY IN THE FACT THAT THE
ORGANIZATION, AND NOT AN INDIVIDUAL OFFICIAL OF THE ORGANIZATION, IS
ASSERTING THE PRIVILEGE IN THIS PROCEEDING.  THE REQUIREMENT OF
"STANDING" - THAT A LITIGANT MUST SHOW THAT HE HIMSELF IS AFFECTED BY
THE OPERATION OF THE ACTION HE CHALLENGES AS IT AFFECTS ANOTHER - IS
INVOLVED HERE.  BUT AS THE CASES CITED BY MY BROTHER DOUGLAS SHOW, AND
THE COURT SEEMS TO CONCEDE, A PARTY HAS BEEN ALLOWED TO ASSERT THE
CONSTITUTIONAL RIGHTS OF ANOTHER PERSON NOT BEFORE THE COURT AS A NAMED
PARTY IN A VARIETY OF SITUATIONS WHERE THE EFFECT OF THE CHALLENGED
STATE ACTION ON HIMSELF IS DERIVATIVE FROM THE IMPACT ON A NUMBER OF
OCCASIONS THAT THE PRIVILEGE IS A PERSONAL RIGHT WHICH MUST NORMALLY BE
CLAIMED BY THE INDIVIDUAL SEEKING ITS PROTECTION.  SEE, E.G., UNITED
STATES EX REL. VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273 U.S. 103,
113; UNITED STATES V. MURDOCK, 284 U.S. 141, 148; ROGERS V. UNITED
STATES, 340 U.S. 367, 371; SMITH V. UNITED STATES, 337 U.S. 137, 147
148.  THESE STATEMENTS WERE MADE IN THE CONTEXT OF AN ISSUE OF WAIVER -
WHETHER A LATER CLAIM OF PRIVILEGE SHOULD BE HONORED WHERE IT WAS
CONTENDED THAT THE PARTY HAD AN EARLIER OPPORTUNITY TO MAKE THE CLAIM
AND HAD FAILED TO DO SO.  THE PRESENT CASE PRESENTS QUITE THE OPPOSITE
SITUATION - NOT WHETHER THE PRIVILEGE IS BEING CLAIMED TOO LATE BUT TOO
EARLY, NOT WAIVER BUT PREMATURE ASSERTION. 

THE ISSUE OF JUSTICIABILITY WHICH CONFRONTS US IS THEREFORE NOT
WHETHER THE PETITIONER MAY RAISE THE FIFTH AMENDMENT QUESTION AT ALL
BUT WHETHER IT MAY DO SO NOW.  I AGREE WITH THE COURT THAT THE CASES
WHICH HAVE UPHELD STANDING IN THE FIRST SENSE ARE NOT DECISIVE OF OUR
PROBLEM.  THE FOLLOWING CONSIDERATIONS, IN MY VIEW, JUSTIFY OUR
ADJUDICATION NOW:  (A) THE ORDER IMPOSES A PRESENTLY ENFORCEABLE DUTY
ON THE ORGANIZATION TO COMPLETE AND FILE FORM ISA-1 AND CREATES AN
INCENTIVE FOR BOTH ORGANIZATION AND OFFICIALS TO MAKE THE DISCLOSURES
IMPLICIT IN THE COMPLETION, SIGNING AND FILING OF THAT FORM; (B) THE
INQUIRY ELICITING THESE DISCLOSURES OF OFFICERSHIP AND KNOWLEDGE IS
SPECIFIC AND NOT OPEN TO POSSIBLY VARYING ANSWERS; (C) THE
INCRIMINATING CHARACTER OF THE INFORMATION THUS DISCLOSED IS PLAIN; AND
(D) FINALLY, IF THE QUESTION IS NOT DECIDED NOW, THE OFFICIALS MUST RUN
THE RISK OF NOT BEING ABLE TO MAKE AN ACCEPTABLE CLAIM OF PRIVILEGE AT
A LATER TIME.  THERE THUS INHERES IN PUTTING OFF DECISION THE
SUBSTANTIAL POSSIBILITY OF EROSION OF THE PRIVILEGE.  WE MAY AND SHOULD
AVOID THAT UNDESIRABLE RESULT BY DECIDING THE QUESTION NOW. 

I THINK THE REASONS ADVANCED BY THE COURT IN SUPPORT OF THE CONTRARY
CONCLUSION ARE OVERBORNE BY THE CONSIDERATIONS I HAVE SUGGESTED.  THE
COURT SAYS THAT THE OFFICIALS MAY SIGN THE STATEMENT AND COMPLY WITH
THE REQUIREMENTS, OR MAY CLAIM THE PRIVILEGE IN SUCH A FORM THAT IT
WILL BE HONORED AND THUS AVOID INCRIMINATION, AND THAT IN ANY EVENT, A
CLAIM OF PRIVILEGE CANNOT BE EVALUATED AT THIS TIME BECAUSE OF THE
VARYING AND PRESENTLY UNKNOWABLE CIRCUMSTANCES WHICH MAY DETERMINE
WHETHER IT WOULD HAVE TO BE HONORED.  THE POSSIBILITY OF "VOLUNTARY"
COMPLIANCE BY THE OFFICIALS SHOULD NOT BE A BAR TO A DECISION NOW. 
GIVEN THE STRUCTURE OF THE STATUTE, COMPLIANCE CANNOT INDISPUTABLY BE
ASSUMED TO BE A VOLUNTARY WAIVER OF THE PRIVILEGE.  THE ORGANIZATION IS
UNDER A DUTY BY VIRTUE OF THE ORDER NOW BEFORE US TO FILE A STATEMENT
IN ACCORDANCE WITH THE ATTORNEY GENERAL'S REQUIREMENTS, ON PENALTY OF
PROSECUTION FOR NOT FILING A REGISTRATION STATEMENT; THE FAILURE OF THE
OFFICIALS TO COMPLETE, SIGN OR FILE FORM ISA-1 MIGHT SUBJECT IT TO SUCH
PROSECUTION.  AND IF THE ORGANIZATION SHOULD NOT REGISTER WITHIN THE 30
DAY PERIOD SPECIFIED IN SEC. 7(C), THE OFFICIALS ARE DUTY-BOUND UNDER
SEC. 7(H) TO EFFECT ITS REGISTRATION, ALSO ON PENALTY OF CRIMINAL
SANCTIONS.  PLAINLY ENOUGH, THEN, THE ORDER GENERATES PRESSURE ON THE
OFFICIALS TO COMPLETE, SIGN AND FILE TO AVOID THE POSSIBILITY OF
PROSECUTION EITHER OF THE ORGANIZATION OR THEMSELVES.  THIS PRESSURE
MAY BE INCREASED BY THE UNCERTAINTIES WHICH ATTEND EFFORTS TO MAKE AN
ACCEPTABLE CLAIM OF THE PRIVILEGE.  IF WE PASS THE OPPORTUNITY FOR
DECISION NOW, OFFICIALS MAY WELL COMPLY OUT OF FEAR THAT A LATER EFFORT
TO MAKE AN ACCEPTABLE CLAIM OF PRIVILEGE WILL FAIL. 

A CLAIM OF PRIVILEGE ON THE REGISTRATION FORM WHICH NAMES THE
OFFICIAL WOULD BE SELF-DEFEATING.  FOR IF THE ADMISSION OF OFFICERSHIP
IN THE COMMUNIST PARTY IS INCRIMINATING, THEN A CLAIM OF PRIVILEGE BY
NAME WOULD AMOUNT TO THE VERY SAME ADMISSION - THE CLAIMANT WOULD BE
ASSERTING THAT HE COULD NOT COMPLETE, SIGN OR FILE THE FORM BECAUSE THE
ADMISSION OF HIS OFFICERSHIP WOULD INCRIMINATE HIM.  THE COURT SUGGESTS
THAT A CLAIM OF THE PRIVILEGE IS POTENTIALLY ALWAYS INCRIMINATING IN
THAT IT MAY AROUSE THE SUSPICIONS OF THE INTERROGATORS.  HOWEVER, THIS
REGISTRATION REQUIREMENT SEEMS TO PRESENT A DIFFERENT CASE IN IMPORTANT
RESPECTS.  CLAIMING THE PRIVILEGE HERE DOES MORE THAN ATTRACT SUSPICION
TO THE CLAIMANT; IT ADMITS AN ELEMENT OF HIS POSSIBLE CRIMINALITY. 
MOREOVER, REGISTRATION IS UNIQUE BECAUSE OF THE INITIAL BURDEN IT PUTS
ON THE POTENTIAL DEFENDANT TO COME FORWARD AND CLAIM THE PRIVILEGE.  HE
MAY THEREBY AROUSE SUSPICIONS THAT PREVIOUSLY HAD NOT EVEN EXISTED AND,
INDEED, VIRTUALLY ESTABLISH A PRIMA FACIE CASE AGAINST HIMSELF.  THE
USUAL SITUATION IN WHICH THE PRIVILEGE IS INVOKED IS A JUDICIAL,
LEGISLATIVE, OR ADMINISTRATIVE PROCEEDING IN WHICH THE PERSON CLAIMING
IT APPEARS BECAUSE THERE IS ALREADY SOME REASON TO THINK THAT HE HAS
INFORMATION ON THE SUBJECT MATTER OF THE INQUIRY.  HIS INVOCATION OF
THE PRIVILEGE IN SUCH CIRCUMSTANCES MAY CONFIRM THE SUSPICIONS OF HIS
INTERROGATORS, BUT IS LESS LIKELY TO AROUSE THEM INITIALLY THAN IN THE
CASE OF A REGISTRATION REGULATION WHICH CALLS ON ALL PERSONS
EVERYWHERE, KNOWN OR UNKNOWN, WHO FALL WITHIN A PRESCRIBED CATEGORY, TO
COME FORWARD AND IDENTIFY THEMSELVES.  AT LEAST IN GOVERNMENTALLY
INITIATED INQUIRIES, THERE ARE LIKELY TO BE CERTAIN CHECKS ON SELF
ACCUSATION, EITHER THE EXPLICIT REQUIREMENT OF PROBABLE CAUSE GOVERNING
THE MAINTENANCE OF A CRIMINAL PROSECUTION OR INSTITUTIONAL LIMITATIONS
ON THE EXERCISE OF THE POWER OF INQUIRY.  HERE THERE IS NO SUCH INITIAL
BURDEN ON GOVERNMENT, NO REQUIREMENT, FOR EXAMPLE, THAT IT IDENTIFY
OFFICIALS IN A PROCEEDING FOR THAT PURPOSE AND THEN SEEK TO ELICIT THE
DESIRED INFORMATION AS TO OTHER OFFICIALS AND MEMBERS FROM THEM.  I
THINK, THEREFORE, THAT IF THE PRIVILEGE DOES PROTECT AN OFFICIAL FROM
DISCLOSURE OF HIS OFFICERSHIP AND KNOWLEDGE WHEN AN INQUIRY EXPLICITLY
IN THOSE TERMS IS MADE, IT WOULD ALSO PROTECT HIM FROM DISCLOSURE IN
THE KIND OF "INDIRECT" INQUIRY AND RESPONSE THAT SEEMS TO ME IMPLICIT
IN THE SUGGESTION THAT A CLAIM OF THE PRIVILEGE BY NAME MAY BE AN
ADEQUATE ALTERNATIVE. 

THERE REMAINS CONSIDERATION OF THE POSSIBILITY THAT AN ANONYMOUS
CLAIM OF THE PRIVILEGE MAY BE MADE AND HONORED BY THE ATTORNEY
GENERAL.  THE ORGANIZATION MIGHT SIMPLY FILE A STATEMENT IN WHICH IT
ASSERTED THE PRIVILEGE ON BEHALF OF ITS OFFICIALS, LISTING THEIR TITLES
BUT NOT THEIR NAMES.  HOWEVER, ON THE COURT'S OWN REASONING THE RIGHT
TO HAVE A CLAIM OF PRIVILEGE HONORED MAY DEPEND ON A VARIETY OF
CIRCUMSTANCES, INCLUDING SUCH FACTORS AS ALREADY EXISTING PUBLIC
KNOWLEDGE OF THE INFORMATION WHICH THE CLAIMANT SEEKS TO CONCEAL, AND
IT IS DIFFICULT TO SEE HOW FOLLOWING THIS COURSE WOULD ADVANCE THE
ATTEMPT OF THE CLAIMANT TO HAVE HIS PRIVILEGE HONORED.  IN A SUBSEQUENT
ENFORCEMENT PROCEEDING AGAINST THE ORGANIZATION FOR FAILURE TO REGISTER
IN ACCORDANCE WITH THE REGULATIONS, OR AGAINST OFFICIALS FOR FAILING TO
REGISTER THE ORGANIZATION, THE DEFENSE OF PRIVILEGE COULD BE MET WITH
THE SAME OBJECTION THAT THE COURT RAISES HERE - THAT THE PRIVILEGE
CLAIM COULD NOT BE EVALUATED UNLESS THE IDENTITY OF THE CLAIMANT WERE
KNOWN.  THE POSSIBILITY THAT THE ATTORNEY GENERAL MIGHT HONOR EVEN AN
ANONYMOUS CLAIM OF THE PRIVILEGE WOULD SIMPLY MEAN ABANDONMENT OF ONE
OF THE REQUIREMENTS IN THE FORM.  BUT I DO NOT SEE HOW WE CAN VIEW THIS
CASE AS IF THAT REQUIREMENT DID NOT EXIST, SINCE THE ORDER UNDER REVIEW
IS TO REGISTER IN ACCORDANCE WITH THE ATTORNEY GENERAL'S REQUIREMENTS
AS THEY NOW ARE.  CERTAINLY AN OFFICIAL MIGHT BE SUFFICIENTLY DUBIOUS
AS TO THE EFFICACY OF AN ANONYMOUS CLAIM OF THE PRIVILEGE BY THE
ORGANIZATION ON HIS BEHALF THAT HE WOULD CHOOSE ONE OF THE ALTERNATIVES
OF COMPLYING, CLAIMING THE PRIVILEGE BY NAME, OR NOT MAKING ANY CLAIM,
ALL DANGEROUS COURSES FOR HIM.  THEREFORE, I CANNOT BELIEVE THAT THE
COURT'S SUGGESTION THAT A CLAIM MAY BE MADE IN A FORM IN WHICH IT COULD
BE HONORED PRESENTS AN OFFICIAL OF PETITIONER WITH A SUFFICIENTLY
REALISTIC CHOICE TO REQUIRE US TO DEFER CONSIDERATION OF THIS QUESTION
UNTIL IT ARISES AT SOME TIME AFTER A CHOICE AMONG THESE ALTERNATIVES IS
MADE. 

I DO NOT READ UNITED STATES V. SULLIVAN, 274 U.S. 259, AND OTHER
CASES WHICH THE COURT CITES, E.G., IN RE GROBAN, 99 OHIO APP. 512, 135
N.E.2D 477, AFF'D, 164 OHIO ST. 26, 128 N.E.2D 106, AFF'D, 352 U.S.
330, O'CONNELL V. UNITED STATES, 40 F.2D 201, AS INDICATING A DIFFERENT
RESULT HERE.  THOSE CASES SEEM TO ME TO HOLD THAT AN INDIVIDUAL CANNOT
THWART A LEGITIMATE INQUIRY BY REFUSING TO ANSWER ANY QUESTIONS AT ALL
ON THE GROUND THAT SOME INCRIMINATING QUESTIONS MIGHT BE ASKED; THEY
REQUIRE THAT HE MUST AT LEAST RESPOND TO THE INQUIRY AND MAKE HIS
CLAIMS OF PRIVILEGE AS THE INCRIMINATING QUESTIONS ARE ASKED.  IN
SULLIVAN THE QUESTIONS WERE NEUTRAL ON THEIR FACE AND WERE ASKED
PURSUANT TO AN INQUIRY IN FURTHERANCE OF THE COLLECTION OF THE REVENUE;
A CLAIM OF SELF-INCRIMINATION AS TO ALL SUCH QUESTIONS WAS MEANINGLESS
IN TERMS OF THE TRADITIONAL REQUIREMENT THAT THE TRIBUNAL BEFORE WHICH
THE CLAIM IS MADE HAVE THE OPPORTUNITY TO DECIDE WHETHER THE CLAIM
SHALL BE ALLOWED.  SEE UNITED STATES V. BURR, 25 FED. CAS. 38; UNITED
STATES EX REL. VAJTAUER V. COMMISSIONER, SUPRA, AT P. 113. 

MOREOVER, IN SULLIVAN A CLAIM OF PRIVILEGE AS TO INDIVIDUAL QUESTIONS
MIGHT HAVE AROUSED SUSPICIONS BUT WOULD NOT HAVE PINPOINTED THE
TAXPAYER'S CRIMINAL ACTIVITIES.  NO SUCH WHOLESALE IMMUNITY FOR THE
PETITIONER'S OFFICIALS WOULD BE INVOLVED IN A CONCLUSION THAT THEIR
CLAIM OF PRIVILEGE SHOULD BE ADJUDICATED WITHOUT A REQUIREMENT THAT
THEY FIRST MAKE IT ON THE REGISTRATION FORM SPECIFICALLY, WITH THE
ATTENDANT RISKS I HAVE PREVIOUSLY CONSIDERED.  THE INQUIRY IMPLICIT IN
THE REQUIREMENTS OF COMPLETING, SIGNING AND FILING HERE IS PRECISE; IT
DEMANDS DISCLOSURE ON MATTERS OF OFFICERSHIP IN, AND KNOWLEDGE OF, THE
COMMUNIST PARTY.  THE INCRIMINATING NATURE OF THAT INQUIRY SEEMS PLAIN
ON ITS FACE, SINCE AN ADMISSION OF OFFICERSHIP AND KNOWLEDGE WOULD BE
NOT MERELY A POSSIBLE LINK IN THE CHAIN NEEDED TO CONVICT UNDER THE
SMITH ACT BUT WOULD ESTABLISH A MAIN INGREDIENT OF THE CRIME PROSCRIBED
IN THE MEMBERSHIP CLAUSE OF THE ACT AS THIS COURT CONSTRUES IT TODAY IN
SCALES V. UNITED STATES.  CF. IN RE DEWAR, 102 VT. 340, 148 A. 489. 
MR. JUSTICE HOLMES WROTE IN SULLIVAN THAT THE TAXPAYER "COULD NOT DRAW
A CONJURER'S CIRCLE AROUND THE WHOLE MATTER BY HIS OWN DECLARATION THAT
TO WRITE ANY WORD UPON THE GOVERNMENT BLANK WOULD BRING HIM INTO DANGER
OF THE LAW."  274 U.S., AT P. 264.  PETITIONER SEEKS TO DRAW NO SUCH
"CONJURER'S CIRCLE" FOR ITS OFFICIALS IN AN ESSENTIALLY NONCRIMINAL
AREA OF INQUIRY, BUT TO ASSERT THEIR PRIVILEGE AGAINST REPLYING TO AN
INQUIRY IN A REGULATORY AREA PERMEATED WITH CRIMINAL STATUTES IN
CIRCUMSTANCES WHERE ANY WORD UPON THE PAPER RESPONSIVE TO THE INQUIRY
WOULD INVOLVE THEM IN THE ADMISSION OF ONE OF THE MAJOR ELEMENTS OF A
CRIME, AND WHERE THE EFFECT OF EVEN CLAIMING THE PRIVILEGE IS NOT
MERELY TO AROUSE SUSPICIONS OF ILLEGALITY BUT TO ADMIT THE SAME ELEMENT
OF THE CRIME. 

NOR AM I PURSUADED THAT THIS FIFTH AMENDMENT CLAIM SHOULD NOT BE
ADJUDICATED NOW BECAUSE SOME OF THE OFFICIALS MAY NOT BE ENTITLED TO
THE PRIVILEGE IF THE FACT OF THEIR OFFICERSHIP IS ALREADY KNOWN.  EVEN
ON THE ASSUMPTION THAT PUBLIC NOTORIETY OR PRIOR ADMISSION IN THESE OR
OTHER PROCEEDINGS WOULD MAKE THE PRIVILEGE INAPPLICABLE TO SUCH
OFFICIALS, THERE IS NOTHING IN THE RECORD TO INDICATE HOW MANY
OFFICIALS FALL INTO THIS CATEGORY.  THE GOVERNMENT CONTENDS THAT SINCE
THE RECORD DOES NOT ESTABLISH THAT ANY OFFICIALS ARE NOT PUBLICLY KNOWN
AS SUCH, WE SHOULD REFRAIN FROM ADJUDICATING THE PRIVILEGE CLAIM NOW
BECAUSE NO ONE MAY ACTUALLY BE ENTITLED TO INVOKE IT.  BUT SINCE THE
RECORD ALSO LEAVES OPEN THE POSSIBILITY THAT THERE MAY BE OFFICIALS
ENTITLED TO ASSERT THE PRIVILEGE, AND SINCE I SEE SUCH DIFFICULTY IN
THE WAY OF EFFECTIVE ASSERTION OF THE PRIVILEGE NOW OR LATER WITHOUT
DISCLOSURE OF THE INFORMATION SOUGHT TO BE PROTECTED, I DO NOT BELIEVE
THAT THESE PERSONS SHOULD BE SUBJECTED TO THE RISKS AND UNCERTAINTIES
OF DECIDING ON A COURSE OF CONDUCT WITH A VIEW TO LITIGATING THIS
QUESTION IN A SUBSEQUENT PROCEEDING.  WHERE THE DANGER OF COMPULSORY
INCRIMINATION IN VIOLATION OF THE FIFTH AMENDMENT THUS APPEARS ON THE
FACE OF THE REQUIREMENTS IT SEEMS TO ME IMPROPER TO FORCE ANY WHO ARE
AFFECTED TO HAZARD THE LOSS OF THEIR PROTECTION BECAUSE SOME, OR EVEN
ALL, HAVE NO PROTECTION AT ALL.  CF. PEOPLE V. MCCORMICK, 102 CAL. APP.
2D SUPP. 954, 963, 228 P.2D 349, 354-355. 

I DO NOT REGARD THIS POSITION ON ADJUDICABILITY AS CALLING FOR THE
IMPERMISSIBLE DECISION OF A HYPOTHETICAL CASE.  NOR DOES IT OPEN THE
WAY TO THE INVALIDATION OF THE REQUIREMENTS ON THEIR FACE DESPITE VALID
APPLICATIONS SIMPLY BECAUSE THEY MIGHT BE INVALIDLY APPLIED IN OTHER
CIRCUMSTANCES.  SEE UNITED STATES V. RAINES, 362 U.S. 17.  IF THE
REQUIREMENTS VIOLATE THE FIFTH AMENDMENT, THEY DO SO FOR ALL SUBJECT TO
THEM BECAUSE THEY REQUIRE INCRIMINATION WITHOUT AN EFFECTIVE PROTECTION
OF THE PRIVILEGE.  AND IT IS BECAUSE I DISCERN NO ADEQUATE PROCEDURAL
PROTECTION FOR THE PRIVILEGE THAT I BELIEVE THE COURT SHOULD ADJUDICATE
THIS PARTICULAR QUESTION NOW. 

AS TO THE MERITS OF THE FIFTH AMENDMENT CLAIM, I BELIEVE THAT
OFFICIALS CANNOT BE COMPELLED TO COMPLETE, SIGN AND FILE THE
REGISTRATION STATEMENT WITHOUT ABRIDGING THEIR PRIVILEGE AGAINST SELF
INCRIMINATION.  I DO NOT THINK THAT THE DOCTRINE OF UNITED STATES V.
WHITE, 322 U.S. 694, APPLIES TO AN INQUIRY DIRECTED TO THE FACT OF
OFFICERSHIP, QUA OFFICERSHIP, AND KNOWLEDGE, QUA KNOWLEDGE, AS OPPOSED
TO THE PRODUCTION OF ORGANIZATIONAL RECORDS BY AN OFFICER WHO IS THEIR
CUSTODIAN.  IT IS THE INDIVIDUAL OFFICIAL'S OWN STATUS AND KNOWLEDGE
THAT IS THE SUBJECT OF THE INQUIRY I FIND IMPLICIT IN THE REQUIREMENT
THAT AN OFFICIAL COMPLETE, SIGN AND FILE THE STATEMENT.  THE PRINCIPLE
THAT A CUSTODIAN OF ORGANIZATIONAL RECORDS MAY BE REQUIRED TO PRODUCE
THEM, EVEN IF THEIR CONTENTS WOULD INCRIMINATE HIM PERSONALLY, IS A
RECOGNITION THAT AN ORGANIZATION ACTS ONLY THROUGH PEOPLE, AND THAT TO
RECOGNIZE THE PRIVILEGE IN THE CUSTODIAN OF ITS RECORDS MIGHT BE TO
IMMUNIZE THE ORGANIZATION'S PAST ACTS.  BUT THESE OFFICIALS ARE NOT
DIRECTED TO PRODUCE RECORDS OF THEIR ORGANIZATION AS ITS CUSTODIANS,
BUT TO COMPLETE, SIGN AND FILE AS ITS OFFICIALS, AND THUS TO IDENTIFY
THEMSELVES AS POSSIBLE PARTICIPANTS IN A CRIMINAL CONSPIRACY AND AS
PERSONS PRESUMPTIVELY EXHIBITING THE DEGREE OF KNOWLEDGE AND ACTIVITY
NECESSARY FOR A CONVICTION UNDER THE MEMBERSHIP CLAUSE OF THE SMITH
ACT.  NOR ARE THEY CALLED ON, IN FACT, TO PRODUCE RECORDS AT ALL, BUT
RATHER TO COMPLETE, SIGN AND FILE A STATEMENT WHICH MAY OR MAY NOT
INCORPORATE THE RECORDS OF THE ORGANIZATION.  AND MORE THAN THE
INCORPORATION OF EXISTING RECORDS IS REQUIRED IN ANY EVENT.  ALL THE
INFORMATION ON FORM ISA-1 MUST BE SUPPLIED WHETHER OR NOT IN EXISTING
RECORDS.  IN ADDITION, THE REQUIREMENT OF SIGNATURES DOES NOT INVOLVE
MERE AUTHENTICATION OR IDENTIFICATION OF RECORDS, CF. CURCIO V. UNITED
STATES, 354 U.S. 118, 125, BECAUSE THE OFFICIALS ARE REQUIRED TO
VOUCHSAFE COMPLETENESS AND ACCURACY OF THE INFORMATION SUPPLIED IN THE
FORM.  THUS THE REQUIREMENTS GO FAR BEYOND THE COMPULSORY PRODUCTION
APPROVED IN WHITE.  IF THE ADMISSION BOTH OF OFFICERSHIP STATUS AND
KNOWLEDGE OF PARTY ACTIVITIES CANNOT BE COMPELLED IN ORAL TESTIMONY IN
A CRIMINAL PROCEEDING, I DO NOT SEE HOW A COMPULSION IN WRITING IN A
REGISTRATION STATEMENT MAKES A DIFFERENCE FOR CONSTITUTIONAL PURPOSES. 
CF.  PEOPLE EX REL. FERGUSON V. REARDON, 197 N.Y. 236, 243-244, 90 N.E.
829, 832.  SINCE THE IMMUNITY GRANTED UNDER SEC. 4(F) OF THE STATUTE IS
NOT COMPLETE, I DO NOT THINK THAT THE OFFICIAL'S COMPLIANCE WITH THE
REQUIREMENTS CAN BE EXACTED CONSISTENTLY WITH THE FIFTH AMENDMENT.  AND
IF THE OFFICIALS CANNOT BE REQUIRED TO COMPLETE, SIGN AND FILE FORM ISA
1, I DO NOT SEE HOW THE PRESENT ORDER CAN BE UPHELD.  THE REQUIREMENTS
PATENTLY DO NOT CONTEMPLATE THE EFFECTUATION OF REGISTRATION BY ANY
EXCEPT PARTY OFFICIALS IN THE PRECISE MANNER SPECIFIED BY THE
REQUIREMENTS.  I WOULD THEREFORE HOLD THE ORDER INVALID INSOFAR AS IT
DIRECTS THE PETITIONER TO REGISTER IN ACCORDANCE WITH THE
REQUIREMENTS. 
..END :









SCALES V. UNITED STATES 367 U.S. 203 


NO. 1.  ARGUED APRIL 29, 1959 - REARGUED OCTOBER 10, 1960 - DECIDED JUNE
5, 1961 - 260 F.2D 21, AFFIRMED. 


PETITIONER WAS CONVICTED OF VIOLATING THE SO-CALLED MEMBERSHIP CLAUSE
OF THE SMITH ACT, WHICH MAKES A FELONY THE ACQUISITION OR HOLDING OF
MEMBERSHIP IN ANY ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE, KNOWING THE
PURPOSES THEREOF.   THE INDICTMENT CHARGED THAT FROM JANUARY 1946 TO
THE DATE OF ITS FILING IN 1954 THE COMMUNIST PARTY OF THE UNITED STATES
WAS SUCH AN ORGANIZATION AND THAT, THROUGHOUT THAT PERIOD, PETITIONER
WAS A MEMBER THEREOF WITH KNOWLEDGE OF THE PARTY'S ILLEGAL PURPOSE AND
A SPECIFIC INTENT TO ACCOMPLISH OVERTHROW OF THE GOVERNMENT "AS
SPEEDILY AS CIRCUMSTANCES WOULD PERMIT."  THE JURY WAS INSTRUCTED THAT
IT COULD NOT CONVICT UNLESS IT FOUND THAT, WITHIN THE 3-YEAR LIMITATION
PERIOD, (1) THE PARTY ADVOCATED THE VIOLENT OVERTHROW OF THE
GOVERNMENT, IN THE SENSE OF PRESENT "ADVOCACY OF ACTION" TO ACCOMPLISH
THAT END AS SOON AS CIRCUMSTANCES WERE PROPITIOUS, AND (2) PETITIONER
WAS AN "ACTIVE" MEMBER OF THE PARTY, AND NOT MERELY "A NOMINAL,
PASSIVE, INACTIVE OR PURELY TECHNICAL" MEMBER, WITH KNOWLEDGE OF THE
PARTY'S ILLEGAL ADVOCACY AND A SPECIFIC INTENT TO BRING ABOUT VIOLENT
OVERTHROW "AS SPEEDILY AS CIRCUMSTANCES WOULD PERMIT."  HELD:  A
JUDGMENT OF THE COURT OF APPEALS SUSTAINING THE CONVICTION IS
AFFIRMED.  PP. 205-259. 

1.  SECTION 4(F) OF THE INTERNAL SECURITY ACT OF 1950, WHICH
PROVIDES, IN PART, THAT NEITHER "THE HOLDING OF OFFICE NOR MEMBERSHIP
IN ANY COMMUNIST ORGANIZATION BY ANY PERSON SHALL CONSTITUTE PER SE A
VIOLATION" OF THAT OR ANY OTHER CRIMINAL STATUTE, DID NOT REPEAL PRO
TANTO THE MEMBERSHIP CLAUSE OF THE SMITH ACT BY EXCLUDING FROM THE
REACH OF THAT CLAUSE MEMBERSHIP IN ANY COMMUNIST ORGANIZATION.  PP. 206
219. 

2.  PETITIONER'S CHALLENGE TO THE CONSTITUTIONALITY OF THE MEMBERSHIP
CLAUSE OF THE SMITH ACT MUST BE OVERRULED.  PP. 219-230. 

(A)  THE STATUTE WAS CORRECTLY INTERPRETED BY THE TWO LOWER COURTS. 
PP. 221-224. 

(B)  AS CONSTRUED AND APPLIED, THE MEMBERSHIP CLAUSE OF THE SMITH ACT
DOES NOT VIOLATE THE FIFTH AMENDMENT BY IMPERMISSIBLY IMPUTING GUILT TO
AN INDIVIDUAL MERELY ON THE BASIS OF HIS ASSOCIATIONS AND SYMPATHIES,
RATHER THAN BECAUSE OF SOME CONCRETE PERSONAL INVOLVEMENT IN CRIMINAL
CONDUCT.  PP. 224-228. 

(C)  AS CONSTRUED AND APPLIED, THE MEMBERSHIP CLAUSE OF THE SMITH ACT
DOES NOT INFRINGE FREEDOM OF POLITICAL EXPRESSION AND ASSOCIATION IN
VIOLATION OF THE FIRST AMENDMENT.  PP. 228-230. 

3.  THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE CONVICTION.  PP. 230
255. 

4.  NONE OF THE TRIAL ERRORS ALLEGED BY PETITIONER RAISES POINTS
MERITING REVERSAL.  PP. 255-259. 

(A)  THE ADMISSION OF EVIDENCE ABOUT THE PARTY'S PROGRAM FOR INCITING
THE NEGRO POPULATION IN THE SOUTH TO REVOLT AND THE ADMISSION OF A
PAMPHLET CALLED "I SAW THE TRUTH IN KOREA," WHICH CONTAINED A VERY
GRUESOME DESCRIPTION OF ALLEGED AMERICAN ATROCITIES IN KOREA, WERE NOT
PREJUDICIAL ERRORS WARRANTING REVERSAL OF THE CONVICTION.  PP. 255
257. 

(B)  THE SO-CALLED JENCKS ACT, 18 U.S.C. SEC. 3500, IS NOT
UNCONSTITUTIONAL AND ITS APPLICATION TO PETITIONER IN THIS CASE DID NOT
INVALIDATE HIS CONVICTION.  PP. 257-258. 

(C)  PETITIONER HAS MADE NO SHOWING TO SUSTAIN HIS CONTENTION THAT
CONGRESSIONAL FINDINGS AS TO THE CHARACTER OF THE COMMUNIST PARTY
CONTAINED IN THE COMMUNIST CONTROL ACT OF 1954 AND THE INTERNAL
SECURITY ACT OF 1950 DEPRIVED HIM OF A FAIR TRIAL ON THAT ISSUE.  PP.
258-259. 

(D)  BY HIS FAILURE TO COMPLY WITH RULE 12 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, PETITIONER WAIVED ANY RIGHT HE MIGHT HAVE HAD TO
QUESTION THE METHOD OF CHOOSING GRAND JURORS, AND NO IMPROPRIETY IN THE
METHOD OF CHOOSING GRAND JURORS HAS BEEN SHOWN.  P. 259. 

SCALES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

OUR WRIT ISSUED IN THIS CASE (358 U.S. 917) TO REVIEW A JUDGMENT OF
THE COURT OF APPEALS (260 F.2D 21) AFFIRMING PETITIONER'S CONVICTION
UNDER THE SO-CALLED MEMBERSHIP CLAUSE OF THE SMITH ACT.  18 U.S.C. SEC.
2385.  THE ACT, AMONG OTHER THINGS, MAKES A FELONY THE ACQUISITION OR
HOLDING OF KNOWING MEMBERSHIP IN ANY ORGANIZATION WHICH ADVOCATES THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE. 
(FN1)  THE INDICTMENT CHARGED THAT FROM JANUARY 1946 TO THE DATE OF ITS
FILING (NOVEMBER 18, 1954) THE COMMUNIST PARTY OF THE UNITED STATES WAS
SUCH AN ORGANIZATION, AND THAT PETITIONER THROUGHOUT THAT PERIOD WAS A
MEMBER THEREOF, WITH KNOWLEDGE OF THE PARTY'S ILLEGAL PURPOSE AND A
SPECIFIC INTENT TO ACCOMPLISH OVERTHROW "AS SPEEDILY AS CIRCUMSTANCES
WOULD PERMIT." 

THE VALIDITY OF THIS CONVICTION IS CHALLENGED ON STATUTORY,
CONSTITUTIONAL, AND EVIDENTIARY GROUNDS, AND FURTHER ON THE BASIS OF
CERTAIN ALLEGED TRIAL AND PROCEDURAL ERRORS.  WE DECIDE THE ISSUES
RAISED UPON THE FULLEST CONSIDERATION, THE CASE HAVING HAD AN UNUSUALLY
LONG HISTORY IN THIS COURT.  (FN2)  FOR REASONS GIVEN IN THIS OPINION
WE AFFIRM THE COURT OF APPEALS. 

                                         I.

                         STATUTORY CHALLENGE. 

PETITIONER CONTENDS THAT THE INDICTMENT FAILS TO STATE AN OFFENSE
AGAINST THE UNITED STATES.  THE CLAIM IS THAT SEC. 4(F) OF THE INTERNAL
SECURITY ACT OF 1950, 64 STAT. 987, 50 U.S.C. SEC. 781 ET SEQ.,
CONSTITUTES A PRO TANTO REPEAL OF THE MEMBERSHIP CLAUSE OF THE SMITH
ACT BY EXCLUDING FROM THE REACH OF THAT CLAUSE MEMBERSHIP IN ANY
COMMUNIST ORGANIZATION.  SECTION 4(F) PROVIDES: 

"NEITHER THE HOLDING OF OFFICE NOR MEMBERSHIP IN ANY COMMUNIST
ORGANIZATION BY ANY PERSON SHALL CONSTITUTE PER SE A VIOLATION OF
SUBSECTION (A) OR SUBSECTION (C) OF THIS SECTION OR OF ANY OTHER
CRIMINAL STATUTE.  THE FACT OF THE REGISTRATION OF ANY PERSON UNDER
COMMUNIST ORGANIZATION SHALL NOT BE RECEIVED IN EVIDENCE AGAINST SUCH
PERSON IN ANY PROSECUTION FOR ANY ALLEGED VIOLATION OF SUBSECTION (A)
OR SUBSECTION (C) OF THIS SECTION OR FOR ANY ALLEGED VIOLATION OF ANY
OTHER CRIMINAL STATUTE." 

TO PREVAIL IN HIS CONTENTION PETITIONER MUST, OF COURSE, BRING
HIMSELF WITHIN THE FIRST SENTENCE OF THIS PROVISION, SINCE THE SECOND
SENTENCE MANIFESTLY REFERS ONLY TO EXCLUSION FROM EVIDENCE OF THE FACT
OF REGISTRATION, THUS ASSUMING THAT A PROSECUTION MAY TAKE PLACE. 

WE TURN FIRST TO THE PROVISION ITSELF, AND FIND THAT, AS TO
PETITIONER'S CONSTRUCTION OF IT, THE LANGUAGE IS AT BEST AMBIGUOUS IF
NOT SUGGESTIVE OF A CONTRARY CONCLUSION.  SECTION 4(F) PROVIDES THAT
MEMBERSHIP OR OFFICE-HOLDING IN A COMMUNIST ORGANIZATION SHALL NOT
CONSTITUTE "PER SE A VIOLATION OF SUBSECTION (A) OR SUBSECTION (C) OF
THIS SECTION OR OF ANY OTHER CRIMINAL STATUTE."  PETITIONER WOULD MOST
PLAINLY BE CORRECT IF THE STATUTE UNDER WHICH HE WAS INDICTED PURPORTED
TO PROSCRIBE MEMBERSHIP IN COMMUNIST ORGANIZATIONS, AS SUCH, AND TO
PUNISH MEMBERSHIP PER SE IN AN ORGANIZATION ENGAGING IN PROSCRIBED
ADVOCACY.  BUT THE MEMBERSHIP CLAUSE OF THE SMITH ACT ON ITS FACE, MUCH
LESS AS WE CONSTRUE IT IN THIS CASE, DOES NOT DO THIS, FOR IT NEITHER
PROSCRIBES MEMBERSHIP IN COMMUNIST ORGANIZATIONS, AS SUCH, BUT ONLY IN
ORGANIZATIONS ENGAGING IN ADVOCACY OF VIOLENT OVERTHROW, NOR PUNISHES
MEMBERSHIP IN THAT KIND OF ORGANIZATION EXCEPT AS TO ONE "KNOWING THE
PURPOSES THEREOF," AND, AS WE HAVE INTERPRETED THE CLAUSE, WITH A
SPECIFIC INTENT TO FURTHER THOSE PURPOSES (INFRA, PP. 219-222).  WE
HAVE ALSO HELD THAT THE PROSCRIBED MEMBERSHIP MUST BE ACTIVE, AND NOT
NOMINAL, PASSIVE OR THEORETICAL (INFRA, PP. 222-224).  THUS THE WORDS
OF THE FIRST SENTENCE OF SEC. 4(F) BY NO MEANS UNEQUIVOCALLY DEMAND THE
RESULT FOR WHICH PETITIONER ARGUES.  WHEN WE TURN FROM THOSE WORDS TO
THEIR CONTEXT, BOTH IN THE SECTION AS A WHOLE AND IN THE SCHEME OF THE
ACT OF WHICH THEY ARE A PART, WHATEVER AMBIGUITY THERE MAY BE MUST BE
RESOLVED, IN OUR VIEW, AGAINST THE PETITIONER'S CONTENTION. 

IN THE CONTEXT OF SEC. 4 AS A WHOLE, THE FIRST SENTENCE OF SUBSECTION
(F) DOES NOT APPEAR TO BE A PROVISION REPEALING IN WHOLE OR IN PART ANY
OTHER PROVISION OF THE INTERNAL SECURITY ACT.  SUBSECTION (A) OF SEC. 4
MAKES IT A CRIME: 

"FOR ANY PERSON KNOWINGLY TO COMBINE, CONSPIRE, OR AGREE WITH ANY
OTHER PERSON TO PERFORM ANY ACT WHICH WOULD SUBSTANTIALLY CONTRIBUTE TO
THE ESTABLISHMENT WITHIN THE UNITED STATES OF A TOTALITARIAN
DICTATORSHIP  ...  THE DIRECTION AND CONTROL OF WHICH IS TO BE VESTED
IN, OR EXERCISED BY OR UNDER THE DOMINATION OR CONTROL OF, ANY FOREIGN
GOVERNMENT, FOREIGN ORGANIZATION OR FOREIGN INDIVIDUAL ...  ." 

SUBSECTION (C) MAKES IT A CRIME FOR ANY OFFICER OR MEMBER OF A
"COMMUNIST ORGANIZATION" TO OBTAIN CLASSIFIED INFORMATION.  WE SHOULD
HESITATE LONG BEFORE HOLDING THAT SUBSECTION (F) OPERATES TO REPEAL PRO
TANTO EITHER ONE OF THESE PROVISIONS WHICH ARE FOUND IN THE SAME
DOES NOT ARGUE FOR ANY SUCH QUIXOTIC RESULT.  THE NATURAL TENDENCY OF
THE FIRST SENTENCE OF SUBSECTION (F) AS TO THE CRIMINAL PROVISIONS
SPECIFICALLY MENTIONED IS TO PROVIDE CLARIFICATION OF THE MEANING OF
THOSE PROVISIONS, THAT IS, THAT AN OFFENSE IS NOT MADE OUT ON PROOF OF
MERE MEMBERSHIP IN A COMMUNIST ORGANIZATION.  AS TO THESE PARTICULARLY
MENTIONED CRIMINAL PROVISIONS IMMUNITY, SUCH AS THERE IS, IS
SPECIFICALLY GRANTED IN THE SECOND SENTENCE ONLY, WHERE IT IS SAID THAT
THE FACT OF REGISTRATION SHALL NOT BE ADMITTED IN EVIDENCE.  YET
PETITIONER ARGUES THAT WHEN WE COME TO THE LAST PHRASE OF THE FIRST
SENTENCE, THE TAG "OR  ...  ANY OTHER CRIMINAL STATUTE," THE OPERATIVE
PART OF THE SENTENCE, "MEMBERSHIP  ...  SHALL NOT CONSTITUTE PER SE A
VIOLATION," HAS AN ALTOGETHER DIFFERENT PURPORT AND EFFECT.  WHAT
OPERATED AS A CLARIFICATION AND GUIDE TO CONSTRUCTION TO THE
SPECIFICALLY IDENTIFIED PROVISIONS IS, PETITIONER ARGUES, A PARTIAL
REPEALER AS TO THE STATUTES REFERRED TO IN THE OMNIBUS CLAUSE AT THE
END OF THE SENTENCE. 

IT SEEMS APPARENT FROM THE FOREGOING THAT THE LANGUAGE OF SEC. 4(F)
IN ITS NATURAL IMPORT AND CONTEXT SHOULD NOT BE TAKEN TO IMMUNIZE
MEMBERS OF COMMUNIST ORGANIZATIONS FROM THE MEMBERSHIP CLAUSE OF THE
SMITH ACT, BUT RATHER AS A MANDATE TO THE COURTS CHARGED WITH THE
CONSTRUCTION OF SUBSECTIONS (A) AND (C) "OR  ...  ANY OTHER CRIMINAL
STATUTE" THAT NEITHER THOSE TWO NAMED CRIMINAL PROVISIONS NOR ANY OTHER
SHALL BE CONSTRUED SO AS TO MAKE "MEMBERSHIP" IN A COMMUNIST
ORGANIZATION "PER SE A VIOLATION."  INDEED, AS WE READ THE FIRST
SENTENCE OF SEC. 4(F), EVEN IF THE MEMBERSHIP CLAUSE OF THE SMITH ACT
COULD BE TAKEN AS PUNISHING NAKED COMMUNIST PARTY MEMBERSHIP, IT WOULD
THEN BE OUR DUTY UNDER SEC. 4(F) TO CONSTRUE IT IN ACCORDANCE WITH THAT
MANDATE, CERTAINLY NOT TO STRIKE IT DOWN.  ALTHOUGH WE THINK THAT THE
MEMBERSHIP CLAUSE ON ITS FACE GOES BEYOND MAKING MERE PARTY MEMBERSHIP
A VIOLATION, IN THAT IT REQUIRES A SHOWING BOTH OF ILLEGAL PARTY
PURPOSES AND OF A MEMBER'S KNOWLEDGE OF SUCH PURPOSES, WE REGARD THE
FIRST SENTENCE OF SEC. 4(F) AS A CLEAR WARRANT FOR CONSTRUING THE
CLAUSE AS REQUIRING NOT ONLY KNOWING MEMBERSHIP, BUT ACTIVE AND
PURPOSIVE MEMBERSHIP, PURPOSIVE THAT IS AS TO THE ORGANIZATION'S
CRIMINAL ENDS.  (INFRA, PP. 219-224.)  BY ITS TERMS, THEN, SUBSECTION
(F) DOES NOT EFFECT A PRO TANTO REPEAL OF THE MEMBERSHIP CLAUSE; AT
MOST IT MODIFIES IT. 

PETITIONER ARGUES THAT IF THE SEC. 4(F) PROVISION DOES NOT BAR THIS
PROSECUTION UNDER THE MEMBERSHIP CLAUSE, THEN THE PHRASE "OR OF ANY
OTHER CRIMINAL STATUTE" BECOMES MEANINGLESS, FOR THERE IS NO OTHER
FEDERAL CRIMINAL STATUTE THAT MAKES THIS SORT OF MEMBERSHIP A CRIME. 
BUT THE ARGUMENT ASSUMES THE ANSWER.  THE FIRST SENTENCE WAS INTENDED
TO CLARIFY, NOT REPEAL, SEC. 4(A) OF THE INTERNAL SECURITY ACT.  BY A
PARITY OF REASONING, ITS EFFECT ON "ANY OTHER CRIMINAL STATUTE" IS ALSO
CLARIFICATION, NOT REPEAL. 

PETITIONER'S CONTENTIONS DO NOT STOP, HOWEVER, WITH THE WORDS OF SEC.
4(F) ITSELF.  THE SUPPOSED PARTIAL REPEAL OF THE MEMBERSHIP CLAUSE BY
THAT PROVISION, IT IS CLAIMED, IS A CONSEQUENCE OF THE LATTER'S PURPOSE
IN THE WHOLE SCHEME OF THE INTERNAL SECURITY ACT OF 1950, AS
ILLUMINATED BY ITS LEGISLATIVE HISTORY.  THE ARGUMENT RUNS AS FOLLOWS:
THE CORE OF THE INTERNAL SECURITY ACT IS ITS REGISTRATION PROVISIONS
(SECS. 7 AND 8), REQUIRING DISCLOSURE OF MEMBERSHIP IN THE COMMUNIST
PARTY FOLLOWING A VALID FINAL DETERMINATION OF THE SUBVERSIVE
ACTIVITIES CONTROL BOARD AS TO THE STATUS OF THE PARTY.  SEE NO. 12,
ANTE, P. 1.  THE REGISTRATION REQUIREMENT WOULD BE RENDERED NUGATORY BY
A PLEA OF SELF-INCRIMINATION AND COULD ONLY BE SAVED BY A VALID GRANT
OF IMMUNITY FROM PROSECUTION BY REASON OF ANY SUCH DISCLOSURE. 
HOWEVER, THE IMMUNITY PROVIDED BY THE SECOND SENTENCE OF SEC. 4(F) IS
INSUFFICIENT, IN THAT IT FORBIDS ONLY THE USE OF THE "FACT OF ...
REGISTRATION" AS EVIDENCE IN ANY FUTURE PROSECUTION, AND NOT ALSO ITS
EMPLOYMENT AS A "LEAD" TO OTHER EVIDENCE.  SEE COUNSELMAN V. HITCHCOCK,
142 U.S. 547; BLAU V. UNITED STATES, 340 U.S. 332.  THEREFORE TO
EFFECTUATE THE CONGRESSIONAL PURPOSE IT BECOMES NECESSARY TO CONSIDER
THE FIRST SENTENCE OF SEC. 4(F) A PRO TANTO REPEALER OF THE MEMBERSHIP
CLAUSE OF THE SMITH ACT, THEREBY ASSURING EFFECTIVE IMMUNITY FROM THE
CRIMINAL CONSEQUENCES OF REGISTRATION IN THIS INSTANCE. 

ALTHOUGH THIS COURT WILL OFTEN STRAIN TO CONSTRUE LEGISLATION SO AS
TO SAVE IT AGAINST CONSTITUTIONAL ATTACK, IT MUST NOT AND WILL NOT
CARRY THIS TO THE POINT OF PERVERTING THE PURPOSE OF A STATUTE. 
CERTAINLY THE SECTION BEFORE US CANNOT BE CONSTRUED AS PETITIONER
ARGUES.  THE FACT OF REGISTRATION MAY PROVIDE A SIGNIFICANT
INVESTIGATORY LEAD NOT ONLY IN PROSECUTIONS UNDER THE MEMBERSHIP CLAUSE
OF THE SMITH ACT, BUT EQUALLY PROBABLY TO PROSECUTIONS UNDER SEC. 4(A)
OF THE INTERNAL SECURITY ACT, LET ALONE SEC. 4(C).  THUS, IF WE
ACCEPTED PETITIONER'S ARGUMENT THAT SEC. 4(F) MUST BE READ AS A PARTIAL
REPEALER OF THE MEMBERSHIP CLAUSE, WE WOULD BE LED TO THE EXTRAORDINARY
CONCLUSION THAT CONGRESS ALSO INTENDED TO IMMUNIZE UNDER SEC. 4(F) WHAT
IT PROHIBITED IN THESE OTHER SUBSECTIONS WHICH IT PASSED AT THE SAME
TIME.  FURTHERMORE, THE THRUST OF PETITIONER'S ARGUMENT CANNOT BE
LIMITED TO THE MEMBERSHIP CLAUSE, FOR IT IS EQUALLY APPLICABLE TO ANY
PROSECUTION UNDER ANY OF A HOST OF CRIMINAL PROVISIONS WHERE COMMUNIST
PARTY MEMBERSHIP MIGHT PROVIDE AN INVESTIGATORY LEAD AS TO THE ELEMENTS
OF THE CRIME.  (FN3)  WE CANNOT ATTRIBUTE ANY SUCH SWEEPING PURPOSE TO
CONGRESS ON THE BASIS OF THE ATTENUATED INFERENCE OFFERED BY
PETITIONER. 

PRESENTED AS WE ARE WITH EVERY INDICATION IN THE STATUTE ITSELF THAT
CONGRESS HAD NO PURPOSE TO BAR A PROSECUTION SUCH AS THIS, WE TURN TO
THE LEGISLATIVE HISTORY OF THE INTERNAL SECURITY ACT OF 1950 TO SEE IF
A DIFFERENT CONCLUSION IS INDICATED. 

MEASURES CONCEIVED BY THE HOUSE AND THE SENATE TO DEAL WITH THE PROBLEM
WHICH IS THE SUBJECT OF THE PRESENT INTERNAL SECURITY ACT.  PRIMARILY,
HOWEVER, SEC. 4 IS THE RESULT OF THE SENATE'S EFFORTS.  IN 1949 SENATOR
MUNDT REINTRODUCED IN THE SENATE A BILL, THE MUNDT-NIXON BILL, WHICH
HAD DIED IN COMMITTEE THE YEAR BEFORE.  S. 2311, 81ST CONG., 1ST SESS.
THE BILL, WHICH WAS REFERRED TO THE COMMITTEE ON THE JUDICIARY,
CONTAINED REGISTRATION PROVISIONS SIMILAR TO THOSE IN THE PRESENT
STATUTE, AND A SEC. 4(A), A CRIMINAL PROVISION IDENTICAL TO THAT OF THE
PRESENT SEC. 4(A).  IN RESPONSE TO AN ENQUIRY, THE COMMITTEE RECEIVED A
LETTER FROM AN EMINENT LAWYER, THE LATE JOHN W. DAVIS OF NEW YORK, TO
THE EFFECT THAT ALTHOUGH THE PRIMARY PURPOSE OF THE BILL APPEARS TO BE
"VENTILATION RATHER THAN PROHIBITION," THERE WAS A QUESTION WHETHER
"MERE MEMBERSHIP IN A COMMUNIST POLITICAL ORGANIZATION, WHICH IS  ...
REQUIRED TO REGISTER MIGHT CONSTITUTE AN ACT SUCH AS SECTION 4(A)
PROSCRIBES?  IF SO," THE LETTER CONTINUED, "IS THERE NOT INHERENT
CONTRADICTION BETWEEN THESE SECTIONS, AND MIGHT NOT A PERSON CALLED ON
TO REGISTER AS A MEMBER CLAIM THAT HE WOULD INVOLUNTARILY INCRIMINATE
HIMSELF BY SO DOING?"  S. REP. NO. 1358, 81ST CONG., 1ST SESS., PP. 43
44.  THUS, THE DAVIS LETTER SEEMED TO ADDRESS ITSELF ONLY TO SELF
INCRIMINATION UNDER THE PROSCRIPTIONS OF SEC. 4(A), AND ONLY TO THE
EXTENT THAT THE MEMBERSHIP DISCLOSED BY REGISTRATION WOULD WITHOUT MORE
CONSTITUTE A VIOLATION OF SEC. 4(A). 

IN RESPONSE TO THIS NARROW OBJECTION THE COMMITTEE DRAFTED THE
PREDECESSOR OF THE PRESENT SEC. 4(F).  THAT SECTION, ALSO NUMBERED SEC.
4(F), PROVIDED THAT: 

"NEITHER THE HOLDING OF OFFICE NOR MEMBERSHIP IN ANY COMMUNIST
ORGANIZATION BY ANY PERSON SHALL CONSTITUTE A VIOLATION OF SUBSECTION
(A)  ...  OF THIS SECTION.  THE FACT OF THE REGISTRATION OF ANY PERSON
...  SHALL NOT BE RECEIVED IN EVIDENCE AGAINST SUCH PERSON IN ANY
PROSECUTION FOR ANY ALLEGED VIOLATION OF SUBSECTION (A)  ...  ."  S.
2311, AS AMENDED.    THE COMMITTEE IN REPORTING THE BILL OUT TO THE
SENATE MADE IT ABUNDANTLY CLEAR THAT WHATEVER OBJECTIONS MIGHT BE MADE
COULD, IN ITS VIEW, BE OVERCOME BY THE CLARIFICATION OF SEC. 4(A)
CONTAINED IN SEC. 4(F), TO WIT:  THAT "MERE MEMBERSHIP IN AN
ORGANIZATION REQUIRED TO REGISTER IS NOT AN OVERT ACT SUCH AS TO BRING
A PERSON WITHIN THE PROHIBITIONS OF SECTION 4.  THIS AMENDMENT WAS
INSERTED TO MAKE CLEAR THE INTENT OF CONGRESS THAT REGISTRATION  ...
WAS NOT EVIDENCE OF A VIOLATION OF SECTION 4 OF THIS BILL."  (FN4)  S.
REP. NO. 1358, SUPRA, P. 2.  TO THE DRAFTERS OF THE ORIGINAL VERSION OF
THE SECTION, THEN, THE PERFORCE LIMITED IMMUNITY OF THE SECOND SENTENCE
OF SEC. 4(F) TOGETHER WITH THE CLARIFICATION OF THE MEANING OF SEC.
4(A) IN THE FIRST SENTENCE WAS ADEQUATE TO DEAL WITH THE SELF
INCRIMINATION PROBLEM UNDER SEC. 4(A), RAISED BY THE DAVIS LETTER. 
THERE IS NO MENTION OF THE SMITH ACT OR ANY OTHER CRIMINAL STATUTE AS
YET, BUT THE PROBLEM OF THE NECESSARY SCOPE OF IMMUNITY IS NO DIFFERENT
IN RELATION TO SEC. 4(A) THAN IT WOULD BE TO SUCH OTHER STATUTES. 

THE SUBSEQUENT HISTORY OF THE SECTION IN THE SENATE REINFORCES THE
CONCLUSION THAT THERE WAS NO INTENT TO GRANT A BROAD IMMUNITY SUCH AS
WOULD MEET THE REASONING OF COUNSELMAN V. HITCHCOCK.  THE MUNDT-NIXON
BILL WAS INCORPORATED IN THE BODY OF AN OMNIBUS MEASURE, THE MCCARRAN
BILL.  S. 4037, 81ST CONG., 2D SESS.  WHEN THIS BILL WAS REPORTED OUT
TO THE SENATE NO FURTHER MENTION WAS MADE IN THE MAJORITY REPORT OF THE
JUDICIARY COMMITTEE OF THE SECTIONS UNDER CONSIDERATION.  HOWEVER,
SENATOR KILGORE'S MINORITY REPORT SQUARELY PRESENTED TWO QUESTIONS AS
TO THE INSUFFICIENCY OF THE IMMUNITY PROVISIONS OF SEC. 4(F):  (1) THAT
THE IMMUNITY WAS INADEQUATE TO MEET THE COUNSELMAN RULE, AND (2) THAT
IN ANY CASE THERE WAS NO IMMUNITY OF ANY SORT GRANTED IN RESPECT OF THE
SMITH ACT.  S. REP. NO. 2369, 81ST CONG., 2D SESS., PT. 2, PP. 12-13. 
THESE GROUNDS WERE URGED AGAINST THE BILL ALSO IN DEBATE BY ITS
OPPONENTS.  SENATOR HUMPHREY READ INTO THE RECORD A "BRIEF" PREPARED BY
THE JUSTICE DEPARTMENT WHICH IN EFFECT RESTATED THE OBJECTIONS OF THE
MINORITY REPORT.  96 CONG. REC. 14475, AT 14479.  SENATOR LEHMAN STATED
THE SAME OBJECTIONS, AND ALSO SUGGESTED THAT THE MEMBERSHIP CLAUSE OF
THE SMITH ACT AS WELL AS SEC. 4(A) MADE COMMUNIST MEMBERSHIP PER SE A
CRIME.  THIS LATTER CONTENTION WAS VIGOROUSLY DENIED BY THE PROPONENTS
OF THE MEASURE.  (FN5)  THUS, THE SENATE PASSED ITS PREDECESSOR VERSION
OF SEC. 4(F), EVEN THOUGH IT HAD HAD CLEARLY PRESENTED TO IT
CONSTITUTIONAL OBJECTIONS TO THAT PROVISION WHICH ARE THE SAME AS THE
OBJECTIONS PETITIONER NOW MAKES TO A NATURAL AND LITERAL READING OF THE
PRESENT STATUTE.  THERE WAS NO IMMUNITY OF ANY KIND AGAINST SMITH ACT
PROSECUTIONS, AND ONLY LIMITED IMMUNITY AGAINST PROSECUTIONS UNDER THE
COMPARABLE PROVISIONS OF SEC. 4(A). 

THE HISTORY OF THE ORIGINAL HOUSE MEASURE IS LIKEWISE RELEVANT TO THE
ISSUE UNDER CONSIDERATION.  THAT MEASURE, THE WOOD BILL, WHICH ALSO
PROVIDED FOR REGISTRATION, CONTAINED NO PROVISION SIMILAR TO SEC. 4(A),
BUT DID HAVE A PROVISION SIMILAR TO THE PRESENT SEC. 4(C), FORBIDDING
MEMBERS OF COMMUNIST ORGANIZATIONS FROM OBTAINING CLASSIFIED
INFORMATION.  H.R. 9490, 81ST CONG., 2D SESS.  THE BILL INCLUDED AN
IMMUNITY PROVISION IN THE SAME SUBSECTION AS THE PREDECESSOR TO PRESENT
SEC. 4(C), WHICH DECLARED THAT: 

"  ...  THE FACT OF THE REGISTRATION OF ANY PERSON  ...  SHALL NOT BE
RECEIVED IN EVIDENCE AGAINST SUCH PERSON IN ANY PROSECUTION FOR ANY
ALLEGED VIOLATION  ...  OF THIS SECTION." 

ONCE AGAIN, THE WOOD BILL DEMONSTRATES THE SAME NARROW VIEW OF THE
SELF-INCRIMINATION PROBLEM AS WAS EVIDENCED BY THE SENATE BILL.  IN
DEBATE CONGRESSMEN CELLER AND MARCANTONIO, OPPOSING THE BILL, POINTED
TO THE TWOFOLD INADEQUACY OF THE IMMUNITY PROVISION:  ITS FAILURE TO
MEET COUNSELMAN, AND ITS NOT REACHING OTHER CRIMINAL STATUTES.  96
CONG. REC.  13739-13740.  THE HOUSE RESPONDED TO THESE OBJECTIONS BY
ADDING THE WORDS "OR FOR ANY ALLEGED VIOLATION OF ANY OTHER  ...
CRIMINAL STATUTE" AT THE END OF THE ABOVE-QUOTED PROVISION.  96 CONG.
REC. 13761.  IT IS, THEREFORE, EVEN CLEARER THAN IN THE CASE OF THE
SENATE'S ACTION THAT THERE WAS NO ATTEMPT TO GRANT COMPLETE IMMUNITY OR
TO REPEAL ANY OTHER STATUTE AT LEAST AS TO PROSECUTION OF COMMUNIST
PARTY MEMBERS, SINCE THE HOUSE'S IMMUNITY PROVISION IN TERMS ONLY DEALT
WITH THE ADMISSION INTO EVIDENCE OF THE FACT OF REGISTRATION, HAVING NO
PROVISION COMPARABLE TO THE FIRST SENTENCE OF PRESENT SEC. 4(F).  THAT
THERE WAS NO SUCH PROVISION MAY PERHAPS BE EXPLAINED BY THE FACT THAT
THERE WAS NO EQUIVALENT TO SEC. 4(A) IN NEED OF CLARIFICATION. 

IN CONFERENCE, THE SUBSTANCE OF THE SENATE BILL WAS ACCEPTED BY THE
CONFEREES, INCLUDING THE CRIMINAL PROVISION OF THE PRESENT SEC. 4(A). 
THE SENATE VERSION OF SEC. 4(F) WAS AMENDED TO ITS PRESENT FORM BY THE
ADDITION OF THE HOUSE "OR ANY OTHER CRIMINAL STATUTE" LANGUAGE TO BOTH
THE FIRST AND SECOND SENTENCES OF THE SUBSECTION, AND BY THE ADDITION
OF "PER SE" TO THE FIRST SENTENCE.  THUS WE ARE ASKED BY PETITIONER TO
HOLD THAT ALTHOUGH NEITHER HOUSE IN ITS PRECONFERENCE BILLS EVIDENCED
ANY PURPOSE TO REPEAL THE SMITH ACT INSOFAR AS COMMUNIST PARTY
MEMBERSHIP WAS CONCERNED, LET ALONE OTHER POSSIBLY APPLICABLE STATUTES
UNDER WHICH REGISTRATION AS A PARTY MEMBER MIGHT PRODUCE AN
INVESTIGATORY LEAD (SEE NOTE 3, SUPRA), THE AMALGAMATION OF THESE TWO
BILLS WAS INTENDED, THOUGH WITHOUT ANY NOTIFICATION BY THE CONFEREES TO
EITHER HOUSE IN THEIR CONFERENCE REPORTS, TO HAVE THIS RESULT.  NOR
DOES THE ADDITION OF THE WORDS "PER SE" ADVANCE PETITIONER'S ARGUMENT. 
ON ITS FACE THE ADDITION WOULD SEEM SIMPLY TO MAKE MORE EXPLICIT THE
CLARIFYING PURPOSE OF THE SENTENCE.  IN ITS CONTEXT OF WORRIES THAT
SEC. 4(A) OR THE SMITH ACT MAKES COMMUNIST MEMBERSHIP PER SE CRIMINAL,
AND OF STATEMENTS BY THE PROPONENTS OF THE BILLS THAT THIS WAS AN
UNFOUNDED FEAR AS TO BOTH PROVISIONS, THE PURELY CLARIFYING PURPOSE OF
PER SE IS APPARENT.  FURTHERMORE, WE ARE ASKED TO ATTRIBUTE THIS
PURPOSE TO THE CONFEREES, ALTHOUGH NEITHER THEY NOR THE PROPONENTS OF
THE MEASURE AS IT FINALLY EMERGED FROM CONFERENCE SAID A WORD ABOUT
SUCH AN IMPORTANT DEPARTURE FROM THE ORIGINAL PURPOSES OF THE TWO
HOUSES.  (FN6) 

FINALLY, IT IS WORTH NOTING THAT AFTER THE CONFERENCE MEASURE
RETURNED TO THE FLOOR OF THE SENATE IT WAS ATTACKED BY SENATOR KEFAUVER
ON PRECISELY THE SAME GROUNDS AS HAD BEEN URGED AGAINST IT IN BOTH
HOUSES PRIOR TO CONFERENCE:  THAT THE IMMUNITY CONFERRED BY THE PRESENT
SEC. 4(F) WAS TOO NARROWLY DRAWN TO SAVE THE REGISTRATION PROVISIONS
AGAINST AN ATTACK UNDER COUNSELMAN.  96 CONG. REC. 15198-15199.  THIS
SAME ATTACK WAS RENEWED AFTER THE PRESIDENT'S VETO, WHICH WAS
OVERRIDDEN BY CONGRESS.  (FN7)  96 CONG. REC.  15553-15554. 

THE LEGISLATIVE HISTORY OF SEC. 4(F), THEREFORE, FAR FROM WEAKENING
THE CONCLUSION FLOWING FROM ANALYSIS OF THE TERMS OF THE STATUTE
ITSELF, FORTIFIES THAT ANALYSIS AT EVERY POINT.  TO CONCLUDE THAT
CONGRESS' DESIRE TO PROTECT THE REGISTRATION PROVISIONS OF THE INTERNAL
SECURITY ACT AGAINST PLEAS OF SELF-INCRIMINATION SHOULD PREVAIL OVER
ITS ADVERTENT FAILURE TO ASSURE THAT RESULT AT THE EXPENSE OF WIPING
OUT THE MEMBERSHIP CLAUSE OF THE SMITH ACT, AS APPLIED TO COMMUNISTS,
WOULD REQUIRE A DISREGARD BY THIS COURT OF THE EVIDENT CONGRESSIONAL
PURPOSE.  WHATEVER MAY BE THE CONSEQUENCES OF THAT FAILURE UPON THE
INTERNAL SECURITY ACT, WE ARE CONCERNED HERE SOLELY WITH THE QUESTION
WHETHER CONGRESS BY SEC. 4(F) INTENDED A PARTIAL REPEAL OF THE
MEMBERSHIP CLAUSE OF THE SMITH ACT.  WE CONCLUDE THAT IT DID NOT AND
HOLD THAT THIS PROSECUTION IS NOT BARRED BY SEC. 4(F) OF THE INTERNAL
SECURITY ACT OF 1950. 

                 II.

                    CONSTITUTIONAL CHALLENGE TO THE MEMBERSHIP

 CLAUSE ON ITS FACE. 

PETITIONER'S CONSTITUTIONAL ATTACK GOES BOTH TO THE STATUTE ON ITS
FACE AND AS APPLIED.  AT THIS POINT WE DEAL WITH THE FIRST ASPECT OF
THE CHALLENGE AND WITH ONE PART OF ITS SECOND ASPECT.  THE BALANCE OF
THE LATTER, WHICH ESSENTIALLY CONCERNS THE SUFFICIENCY OF THE EVIDENCE,
IS DISCUSSED IN THE NEXT SECTION OF THIS OPINION. 

IT WILL BRING THE CONSTITUTIONAL ISSUES INTO CLEARER FOCUS TO NOTICE
FIRST THE PREMISES ON WHICH THE CASE WAS SUBMITTED TO THE JURY.  THE
JURY WAS INSTRUCTED THAT IN ORDER TO CONVICT IT MUST FIND THAT WITHIN
THE THREE-YEAR LIMITATIONS PERIOD (FN8) (1) THE COMMUNIST PARTY
ADVOCATED THE VIOLENT OVERTHROW OF THE GOVERNMENT, IN THE SENSE OF
PRESENT "ADVOCACY OF ACTION" TO ACCOMPLISH THAT END AS SOON AS
CIRCUMSTANCES WERE PROPITIOUS; AND (2) PETITIONER WAS AN "ACTIVE"
MEMBER OF THE PARTY, AND NOT MERELY "A NOMINAL, PASSIVE, INACTIVE OR
PURELY TECHNICAL" MEMBER, WITH KNOWLEDGE OF THE PARTY'S ILLEGAL
ADVOCACY AND A SPECIFIC INTENT TO BRING ABOUT VIOLENT OVERTHROW "AS
SPEEDILY AS CIRCUMSTANCES WOULD PERMIT." 

THE CONSTITUTIONAL ATTACK UPON THE MEMBERSHIP CLAUSE, AS THUS
CONSTRUED, IS THAT THE STATUTE OFFENDS (1) THE FIFTH AMENDMENT, (FN9)
IN THAT IT IMPERMISSIBLY IMPUTES GUILT TO AN INDIVIDUAL MERELY ON THE
BASIS OF HIS ASSOCIATIONS AND SYMPATHIES, RATHER THAN BECAUSE OF SOME
CONCRETE PERSONAL INVOLVEMENT IN CRIMINAL CONDUCT; AND (2) THE FIRST
AMENDMENT, (FN10)  IN THAT IT INFRINGES ON FREE POLITICAL EXPRESSION
AND ASSOCIATION.  SUBSIDIARILY, IT IS ARGUED THAT THE STATUTE CANNOT BE
INTERPRETED AS INCLUDING A REQUIREMENT OF A SPECIFIC INTENT TO
ACCOMPLISH VIOLENT OVERTHROW, OR AS REQUIRING THAT MEMBERSHIP IN A
PROSCRIBED ORGANIZATION MUST BE "ACTIVE" MEMBERSHIP, IN THE ABSENCE OF
BOTH OR EITHER OF WHICH IT IS SAID THE STATUTE BECOMES A FORTIORI
UNCONSTITUTIONAL.  (FN11)  IT IS FURTHER CONTENDED THAT EVEN IF THE
ADJECTIVE "ACTIVE" MAY PROPERLY BE IMPLIED AS A QUALIFICATION UPON THE
TERM "MEMBER," PETITIONER'S CONVICTION WOULD NONETHELESS BE
UNCONSTITUTIONAL, BECAUSE SO CONSTRUED THE STATUTE WOULD BE
IMPERMISSIBLY VAGUE UNDER THE FIFTH AND SIXTH AMENDMENTS, (FN12) AND SO
APPLIED WOULD IN ANY EVENT INFRINGE THE SIXTH AMENDMENT, IN THAT THE
INDICTMENT CHARGED ONLY THAT SCALES WAS A "MEMBER," NOT AN "ACTIVE"
MEMBER, OF THE COMMUNIST PARTY. 

                      1.  STATUTORY CONSTRUCTION. 

BEFORE REACHING PETITIONER'S CONSTITUTIONAL CLAIMS, WE SHOULD FIRST
ASCERTAIN WHETHER THE MEMBERSHIP CLAUSE PERMISSIBLY BEARS THE
CONSTRUCTION PUT UPON IT BELOW.  WE THINK IT DOES. 

THE TRIAL COURT'S DEFINITION OF THE KIND OF ORGANIZATIONAL ADVOCACY
THAT IS PROSCRIBED WAS FULLY IN ACCORD WITH WHAT WAS HELD IN YATES V.
UNITED STATES, 354 U.S. 298.  (FN13)  AND THE STATUTE ITSELF REQUIRES
THAT A DEFENDANT MUST HAVE KNOWLEDGE OF THE ORGANIZATION'S ILLEGAL
ADVOCACY. 

THE ONLY TWO ELEMENTS OF THE CRIME, AS DEFINED BELOW, ABOUT WHICH
THERE IS CONTROVERSY ARE THEREFORE "SPECIFIC INTENT" AND "ACTIVE"
MEMBERSHIP.  AS TO THE FORMER, THIS COURT HELD IN DENNIS V. UNITED
STATES, 341 U.S. 494, 499-500, THAT EVEN THOUGH THE "ADVOCACY" AND
"ORGANIZING" PROVISIONS OF THE SMITH ACT, UNLIKE THE "LITERATURE"
INTENT ELEMENT, SUCH A REQUIREMENT WAS FAIRLY TO BE IMPLIED.  WE THINK
THAT THE REASONING OF DENNIS APPLIES EQUALLY TO THE MEMBERSHIP CLAUSE,
AND ARE LEFT UNPERSUADED BY THE DISTINCTIONS PETITIONER SEEKS TO DRAW
BETWEEN THIS CLAUSE AND THE ADVOCACY AND ORGANIZING PROVISIONS OF THE
SMITH ACT. 

WE FIND HARDLY GREATER DIFFICULTY IN INTERPRETING THE MEMBERSHIP
CLAUSE TO REACH ONLY "ACTIVE" MEMBERS.  WE DECLINE TO ATTRIBUTE TO
CONGRESS A PURPOSE TO PUNISH NOMINAL MEMBERSHIP, EVEN THOUGH
ACCOMPANIED BY "KNOWLEDGE" AND "INTENT," NOT MERELY BECAUSE OF THE
CLOSE CONSTITUTIONAL QUESTIONS THAT SUCH A PURPOSE WOULD RAISE (CF.
INFRA, P. 228; YATES, SUPRA, AT 319), BUT ALSO FOR TWO OTHER REASONS:
IT IS NOT TO BE LIGHTLY INFERRED THAT CONGRESS INTENDED TO VISIT UPON
MERE PASSIVE MEMBERS THE HEAVY PENALTIES IMPOSED BY THE SMITH ACT. 
(FN14)  NOR CAN WE ASSUME THAT IT WAS CONGRESS' PURPOSE TO ALLOW THE
QUALITY OF THE PUNISHABLE MEMBERSHIP TO BE MEASURED SOLELY BY THE
VARYING STANDARDS OF THAT RELATIONSHIP AS SUBJECTIVELY VIEWED BY
DIFFERENT ORGANIZATIONS.  IT IS MORE REASONABLE TO BELIEVE THAT
CONGRESS CONTEMPLATED AN OBJECTIVE STANDARD FIXED BY THE LAW ITSELF,
THEREBY ASSURING AN EVENHANDED APPLICATION OF THE STATUTE. 

THIS COURT IN PASSING ON A SIMILAR PROVISION REQUIRING THE
DEPORTATION OF ALIENS WHO HAVE BECOME MEMBERS OF THE COMMUNIST PARTY -
A PROVISION WHICH RESTED ON CONGRESS' FAR MORE PLENARY POWER OVER
ALIENS, AND HENCE DID NOT PRESS NEARLY SO CLOSELY ON THE LIMITS OF
CONSTITUTIONALITY AS THIS ENACTMENT - HAD NO DIFFICULTY IN INTERPRETING
"MEMBERSHIP" THERE AS MEANING MORE THAN THE MERE VOLUNTARY LISTING OF A
PERSON'S NAME ON PARTY ROLLS.  GALVAN V. PRESS, 347 U.S. 522; ROWOLDT
V. PERFETTO, 355 U.S. 115; SEE BRIDGES V. WIXON, 326 U.S. 135.  A
SIMILAR CONSTRUCTION IS CALLED FOR HERE.  (FN15) 

PETITIONER'S PARTICULAR CONSTITUTIONAL OBJECTIONS TO THIS
CONSTRUCTION ARE MISCONCEIVED.  THE INDICTMENT WAS NOT DEFECTIVE IN
FAILING TO CHARGE THAT SCALES WAS AN "ACTIVE" MEMBER OF THE PARTY, FOR
THAT FACTOR WAS NOT IN ITSELF A DISCRETE ELEMENT OF THE CRIME, BUT AN
INHERENT QUALITY OF THE MEMBERSHIP ELEMENT.  AS SUCH IT WAS A MATTER
NOT FOR THE INDICTMENT, BUT FOR ELUCIDATING INSTRUCTIONS TO THE JURY ON
WHAT THE TERM "MEMBER" IN THE STATUTE MEANT.  NOR DO WE THINK THAT THE
OBJECTION ON THE SCORE OF VAGUENESS IS A TENABLE ONE.  THE DISTINCTION
BETWEEN "ACTIVE" AND "NOMINAL" MEMBERSHIP IS WELL UNDERSTOOD IN COMMON
PARLANCE (CF. BOYCE MOTOR LINES V. UNITED STATES, 342 U.S. 337; UNITED
STATES V. PETRILLO, 332 U.S. 1; SPROLES V. BINFORD, 286 U.S. 374), AND
THE POINT AT WHICH ONE SHADES INTO THE OTHER IS SOMETHING THAT GOES NOT
TO THE SUFFICIENCY OF THE STATUTE, BUT TO THE ADEQUACY OF THE TRIAL
COURT'S GUIDANCE TO THE JURY BY WAY OF INSTRUCTIONS IN A PARTICULAR
CASE.  SEE NOTE 29, INFRA.  MOREOVER, WHATEVER ABSTRACT DOUBTS MIGHT
EXIST ON THE MATTER, THIS CASE PRESENTS NO SUCH PROBLEM.  FOR
PETITIONER'S ACTIONS ON BEHALF OF THE COMMUNIST PARTY MOST CERTAINLY
AMOUNTED TO ACTIVE MEMBERSHIP BY WHATEVER STANDARDS ONE COULD
REASONABLY ANTICIPATE, AND HE CAN THEREFORE HARDLY BE CONSIDERED TO
HAVE ACTED UNADVISEDLY ON THIS SCORE.   WE FIND NO SUBSTANCE IN THE
FURTHER SUGGESTION THAT PETITIONER COULD NOT BE EXPECTED TO ANTICIPATE
A CONSTRUCTION OF THE STATUTE THAT INCLUDED WITHIN ITS ELEMENTS
ACTIVITY AND SPECIFIC INTENT, AND HENCE THAT HE WAS NOT DULY WARNED OF
WHAT THE STATUTE MADE CRIMINAL.  IT IS, OF COURSE, CLEAR THAT THE LOWER
COURTS' CONSTRUCTION WAS NARROWER, NOT BROADER, THAN THE ONE FOR WHICH
PETITIONER ARGUES IN DEFINING THE CHARACTER OF THE FORBIDDEN CONDUCT
AND THAT THEREFORE, ACCORDING TO PETITIONER'S OWN CONSTRUCTION, HIS
ACTIONS WERE FORBIDDEN BY THE STATUTE.  THE CONTENTION MUST THEN BE
THAT PETITIONER HAD A RIGHT TO RELY ON THE STATUTE'S, AS HE CONSTRUED
IT, BEING HELD UNCONSTITUTIONAL.  ASSUMING, ARGUENDO, THAT PETITIONER'S
CONSTRUCTION WAS NOT UNREASONABLE, NO MORE CAN BE SAID THAN THAT - IN
LIGHT OF THE COURTS' TRADITIONAL AVOIDANCE OF CONSTRUCTIONS OF DUBIOUS
CONSTITUTIONALITY AND IN LIGHT OF THEIR ROLE IN CONSTRUING THE PURPOSE
OF A STATUTE - THERE WERE TWO WAYS ONE COULD REASONABLY ANTICIPATE THIS
STATUTE'S BEING CONSTRUED, AND THAT PETITIONER HAD CLEAR WARNING THAT
HIS ACTIONS WERE IN VIOLATION OF BOTH CONSTRUCTIONS.  THERE IS NO
ADDITIONAL CONSTITUTIONAL REQUIREMENT THAT PETITIONER SHOULD BE
ENTITLED TO RELY UPON THE STATUTE'S BEING CONSTRUED IN SUCH A WAY AS
POSSIBLY TO RENDER IT UNCONSTITUTIONAL.  IN SUM, THIS ARGUMENT OF A
"RIGHT" TO A LITERAL CONSTRUCTION SIMPLY BOILS DOWN TO A CLAIM THAT THE
VIEW OF THE STATUTE TAKEN BELOW DID VIOLENCE TO THE CONGRESSIONAL
PURPOSE.  OF COURSE A LITIGANT IS ALWAYS PREJUDICED WHEN A COURT ERRS,
BUT WHETHER OR NOT THE LOWER COURTS ERRED IN THEIR CONSTRUCTION IS AN
ISSUE WHICH CAN ONLY BE MET ON ITS MERITS, AND NOT BY REFERENCE TO A
"RIGHT" TO A PARTICULAR INTERPRETATION. 

WE HOLD THAT THE STATUTE WAS CORRECTLY INTERPRETED BY THE TWO LOWER
COURTS, AND NOW TURN TO PETITIONER'S BASIC CONSTITUTIONAL CHALLENGE. 

                    2.  FIFTH AMENDMENT. 

IN OUR JURISPRUDENCE GUILT IS PERSONAL, AND WHEN THE IMPOSITION OF
PUNISHMENT ON A STATUS OR ON CONDUCT CAN ONLY BE JUSTIFIED BY REFERENCE
TO THE RELATIONSHIP OF THAT STATUS OR CONDUCT TO OTHER CONCEDEDLY
CRIMINAL ACTIVITY (HERE ADVOCACY OF VIOLENT OVERTHROW), THAT
RELATIONSHIP MUST BE SUFFICIENTLY SUBSTANTIAL TO SATISFY THE CONCEPT OF
PERSONAL GUILT IN ORDER TO WITHSTAND ATTACK UNDER THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT.  MEMBERSHIP, WITHOUT MORE, IN AN
ORGANIZATION ENGAGED IN ILLEGAL ADVOCACY, IT IS NOW SAID, HAS NOT
HERETOFORE BEEN RECOGNIZED BY THIS COURT TO BE SUCH A RELATIONSHIP. 
(FN16)  THIS CLAIM STANDS, AND WE SHALL EXAMINE IT, INDEPENDENTLY OF
THE CLAIM MADE UNDER THE FIRST AMENDMENT. 

ANY THOUGHT THAT DUE PROCESS PUTS BEYOND THE REACH OF THE CRIMINAL
LAW ALL INDIVIDUAL ASSOCIATIONAL RELATIONSHIPS, UNLESS ACCOMPANIED BY
THE COMMISSION OF SPECIFIC ACTS OF CRIMINALITY, IS DISPELLED BY
FAMILIAR CONCEPTS OF THE LAW OF CONSPIRACY AND COMPLICITY.  WHILE BOTH
ARE COMMONPLACE IN THE LANDSCAPE OF THE CRIMINAL LAW, THEY ARE NOT
NATURAL FEATURES.  RATHER THEY ARE PARTICULAR LEGAL CONCEPTS
MANIFESTING THE MORE GENERAL PRINCIPLE THAT SOCIETY, HAVING THE POWER
TO PUNISH DANGEROUS BEHAVIOR, CANNOT BE POWERLESS AGAINST THOSE WHO
WORK TO BRING ABOUT THAT BEHAVIOR.  (FN17)  THE FACT THAT CONGRESS HAS
NOT RESORTED TO EITHER OF THESE FAMILIAR CONCEPTS MEANS ONLY THAT THE
ENQUIRY HERE MUST DIRECT ITSELF TO AN ANALYSIS OF THE RELATIONSHIP
BETWEEN THE FACT OF MEMBERSHIP AND THE UNDERLYING SUBSTANTIVE ILLEGAL
CONDUCT, IN ORDER TO DETERMINE WHETHER THAT RELATIONSHIP IS INDEED TOO
TENUOUS TO PERMIT ITS USE AS THE BASIS OF CRIMINAL LIABILITY.  IN THIS
INSTANCE IT IS AN ORGANIZATION WHICH ENGAGES IN CRIMINAL ACTIVITY,
(FN18) AND WE CAN PERCEIVE NO REASON WHY ONE WHO ACTIVELY AND KNOWINGLY
WORKS IN THE RANKS OF THAT ORGANIZATION, INTENDING TO CONTRIBUTE TO THE
SUCCESS OF THOSE SPECIFICALLY ILLEGAL ACTIVITIES, SHOULD BE ANY MORE
IMMUNE FROM PROSECUTION THAN HE TO WHOM THE ORGANIZATION HAS ASSIGNED
THE TASK OF CARRYING OUT THE SUBSTANTIVE CRIMINAL ACT.  NOR SHOULD THE
FACT THAT CONGRESS HAS FOCUSSED HERE ON "MEMBERSHIP," THE
CHARACTERISTIC RELATIONSHIP BETWEEN AN INDIVIDUAL AND THE TYPE OF
CONSPIRATORIAL QUASI-POLITICAL ASSOCIATIONS WITH THE CRIMINAL ASPECT OF
WHOSE ACTIVITIES CONGRESS WAS CONCERNED, OF ITSELF REQUIRE THE
CONCLUSION THAT THE LEGISLATURE HAS TRAVELED OUTSIDE THE FAMILIAR AND
PERMISSIBLE BOUNDS OF CRIMINAL IMPUTABILITY.  IN TRUTH, THE SPECIFICITY
OF THE PROSCRIBED RELATIONSHIP IS NOT NECESSARILY A VICE; IT PROVIDES
INSTRUCTION AND WARNING.  (FN19) 

WHAT MUST BE MET, THEN, IS THE ARGUMENT THAT MEMBERSHIP, EVEN WHEN
ACCOMPANIED BY THE ELEMENTS OF KNOWLEDGE AND SPECIFIC INTENT, AFFORDS
AN INSUFFICIENT QUANTUM OF PARTICIPATION IN THE ORGANIZATION'S ALLEGED
CRIMINAL ACTIVITY, THAT IS, AN INSUFFICIENTLY SIGNIFICANT FORM OF AID
AND ENCOURAGEMENT TO PERMIT THE IMPOSITION OF CRIMINAL SANCTIONS ON
THAT BASIS.  IT MUST INDEED BE RECOGNIZED THAT A PERSON WHO MERELY
BECOMES A MEMBER OF AN ILLEGAL ORGANIZATION, BY THAT "ACT" ALONE NEED
BE DOING NOTHING MORE THAN SIGNIFYING HIS ASSENT TO ITS PURPOSES AND
ACTIVITIES ON ONE HAND, AND PROVIDING, ON THE OTHER, ONLY THE SORT OF
MORAL ENCOURAGEMENT WHICH COMES FROM THE KNOWLEDGE THAT OTHERS BELIEVE
IN WHAT THE ORGANIZATION IS DOING.  IT MAY INDEED BE ARGUED THAT SUCH
ASSENT AND ENCOURAGEMENT DO FALL SHORT OF THE CONCRETE, PRACTICAL
IMPETUS GIVEN TO A CRIMINAL ENTERPRISE WHICH IS LENT FOR INSTANCE BY A
COMMITMENT ON THE PART OF A CONSPIRATOR TO ACT IN FURTHERANCE OF THAT
ENTERPRISE.  A MEMBER, AS DISTINGUISHED FROM A CONSPIRATOR, MAY
INDICATE HIS APPROVAL OF A CRIMINAL ENTERPRISE BY THE VERY FACT OF HIS
MEMBERSHIP WITHOUT THEREBY NECESSARILY COMMITTING HIMSELF TO FURTHER IT
BY ANY ACT OR COURSE OF CONDUCT WHATEVER. 

IN AN AREA OF THE CRIMINAL LAW WHICH THIS COURT HAS INDICATED MORE
THAN ONCE DEMANDS ITS WATCHFUL SCRUTINY (SEE DENNIS, SUPRA, AT 516;
YATES, SUPRA, AT 328; AND SEE ALSO NOTO V. UNITED STATES, DECIDED
TODAY, POST, P. 290), THESE FACTORS HAVE WEIGHT (FN20) AND MUST BE
FOUND TO BE OVERBORNE IN A TOTAL CONSTITUTIONAL ASSESSMENT OF THE
STATUTE.  WE THINK, HOWEVER, THEY ARE DULY MET WHEN THE STATUTE IS
FOUND TO REACH ONLY "ACTIVE" MEMBERS HAVING ALSO A GUILTY KNOWLEDGE AND
INTENT, AND WHICH THEREFORE PREVENTS A CONVICTION ON WHAT OTHERWISE
MIGHT BE REGARDED AS MERELY AN EXPRESSION OF SYMPATHY WITH THE ALLEGED
CRIMINAL ENTERPRISE, UNACCOMPANIED BY ANY SIGNIFICANT ACTION IN ITS
SUPPORT OR ANY COMMITMENT TO UNDERTAKE SUCH ACTION. 

THUS, GIVEN THE CONSTRUCTION OF THE MEMBERSHIP CLAUSE ALREADY
DISCUSSED, WE THINK THE FACTORS CALLED FOR IN RENDERING MEMBERS
CRIMINALLY RESPONSIBLE FOR THE ILLEGAL ADVOCACY OF THE ORGANIZATION
FALL WITHIN ESTABLISHED, AND THEREFORE PRESUMABLY CONSTITUTIONAL,
STANDARDS OF CRIMINAL IMPUTABILITY. 

                            3.  FIRST AMENDMENT. 

LITTLE REMAINS TO BE SAID CONCERNING THE CLAIM THAT THE STATUTE
INFRINGES FIRST AMENDMENT FREEDOMS.  IT WAS SETTLED IN DENNIS THAT THE
ADVOCACY WITH WHICH WE ARE HERE CONCERNED IS NOT CONSTITUTIONALLY
PROTECTED SPEECH, AND IT WAS FURTHER ESTABLISHED THAT A COMBINATION TO
PROMOTE SUCH ADVOCACY, ALBEIT UNDER THE AEGIS OF WHAT PURPORTS TO BE A
POLITICAL PARTY, IS NOT SUCH ASSOCIATION AS IS PROTECTED BY THE FIRST
AMENDMENT.  WE CAN DISCERN NO REASON WHY MEMBERSHIP, WHEN IT
CONSTITUTES A PURPOSEFUL FORM OF COMPLICITY IN A GROUP ENGAGING IN THIS
SAME FORBIDDEN ADVOCACY, SHOULD RECEIVE ANY GREATER DEGREE OF
PROTECTION FROM THE GUARANTEES OF THAT AMENDMENT. 

IF IT IS SAID THAT THE MERE EXISTENCE OF SUCH AN ENACTMENT TENDS TO
INHIBIT THE EXERCISE OF CONSTITUTIONALLY PROTECTED RIGHTS, IN THAT IT
ENGENDERS AN UNHEALTHY FEAR THAT ONE MAY FIND HIMSELF UNWITTINGLY
EMBROILED IN CRIMINAL LIABILITY, THE ANSWER SURELY IS THAT THE STATUTE
PROVIDES THAT A DEFENDANT MUST BE PROVEN TO HAVE KNOWLEDGE OF THE
PROSCRIBED ADVOCACY BEFORE HE MAY BE CONVICTED.  IT IS, OF COURSE, TRUE
THAT QUASI-POLITICAL PARTIES OR OTHER GROUPS THAT MAY EMBRACE BOTH
LEGAL AND ILLEGAL AIMS DIFFER FROM A TECHNICAL CONSPIRACY, WHICH IS
DEFINED BY ITS CRIMINAL PURPOSE, SO THAT ALL KNOWING ASSOCIATION WITH
THE CONSPIRACY IS A PROPER SUBJECT FOR CRIMINAL PROSCRIPTION AS FAR AS
FIRST AMENDMENT LIBERTIES ARE CONCERNED.  IF THERE WERE A SIMILAR
BLANKET PROHIBITION OF ASSOCIATION WITH A GROUP HAVING BOTH LEGAL AND
ILLEGAL AIMS, THERE WOULD INDEED BE A REAL DANGER THAT LEGITIMATE
POLITICAL EXPRESSION OR ASSOCIATION WOULD BE IMPAIRED, BUT THE
MEMBERSHIP CLAUSE, AS HERE CONSTRUED, DOES NOT CUT DEEPER INTO THE
FREEDOM OF ASSOCIATION THAN IS NECESSARY TO DEAL WITH "THE SUBSTANTIVE
EVILS THAT CONGRESS HAS A RIGHT TO PREVENT."  SCHENCK V. UNITED STATES,
249 U.S. 47, 52.  THE CLAUSE DOES NOT MAKE CRIMINAL ALL ASSOCIATION
WITH AN ORGANIZATION WHICH HAS BEEN SHOWN TO ENGAGE IN ILLEGAL
ADVOCACY.  THERE MUST BE CLEAR PROOF THAT A DEFENDANT "SPECIFICALLY
INTENDS TO ACCOMPLISH THE AIMS OF THE ORGANIZATION BY RESORT TO
VIOLENCE."  NOTO V. UNITED STATES, POST, AT P. 299.  THUS THE MEMBER
FOR WHOM THE ORGANIZATION IS A VEHICLE FOR THE ADVANCEMENT OF
LEGITIMATE AIMS AND POLICIES DOES NOT FALL WITHIN THE BAN OF THE
STATUTE:  HE LACKS THE REQUISITE SPECIFIC INTENT "TO BRING ABOUT THE
OVERTHROW OF THE GOVERNMENT AS SPEEDILY AS CIRCUMSTANCES WOULD
PERMIT."  SUCH A PERSON MAY BE FOOLISH, DELUDED, OR PERHAPS MERELY
OPTIMISTIC, BUT HE IS NOT BY THIS STATUTE MADE A CRIMINAL. 

WE CONCLUDE THAT PETITIONER'S CONSTITUTIONAL CHALLENGE MUST BE
OVERRULED.  (FN21)

                  III. 

                             EVIDENTIARY CHALLENGE. 

ONLY IN RARE INSTANCES WILL THIS COURT REVIEW THE GENERAL SUFFICIENCY
OF THE EVIDENCE TO SUPPORT A CRIMINAL CONVICTION, FOR ORDINARILY THAT
IS A FUNCTION WHICH PROPERLY BELONGS TO AND ENDS WITH THE COURT OF
APPEALS.  WE DO SO IN THIS CASE AND IN NO. 9, NOTO V. UNITED STATES,
POST, P. 290 - OUR FIRST REVIEW OF CONVICTIONS UNDER THE MEMBERSHIP
CLAUSE OF THE SMITH ACT - NOT ONLY TO MAKE SURE THAT SUBSTANTIVE
CONSTITUTIONAL STANDARDS HAVE NOT BEEN THWARTED, BUT ALSO TO PROVIDE
GUIDANCE FOR THE FUTURE TO THE LOWER COURTS IN AN AREA WHICH BORDERS SO
CLOSELY UPON CONSTITUTIONALLY PROTECTED RIGHTS. 

ON THIS PHASE OF THE CASE PETITIONER'S PRINCIPAL CONTENTION IS THAT
THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE COMMUNIST PARTY WAS
ENGAGED IN PRESENT ADVOCACY OF VIOLENT OVERTHROW OF THE GOVERNMENT IN
THE SENSE REQUIRED BY THE SMITH ACT, THAT IS, IN "ADVOCACY OF ACTION"
FOR THE ACCOMPLISHMENT OF SUCH OVERTHROW EITHER IMMEDIATELY OR AS SOON
AS CIRCUMSTANCES PROVED PROPITIOUS, AND UTTERED IN TERMS REASONABLY
CALCULATED TO "INCITE" TO SUCH ACTION.  SEE YATES V. UNITED STATES,
SUPRA, 318-322.  THIS CONTENTION RESTS LARGELY ON THE PROPOSITION THAT
THE EVIDENCE ON THIS ASPECT OF THE CASE DOES NOT DIFFER MATERIALLY FROM
THAT WHICH THE COURT IN YATES STATED WAS INADEQUATE TO ESTABLISH THAT
SORT OF PARTY ADVOCACY THERE . 

IN YATES THE GOVERNMENT SOUGHT TO USE THE COMMUNIST PARTY, OR AT
LEAST THE CALIFORNIA BRANCH OF THE PARTY, AS THE CONSPIRATORIAL NEXUS
BETWEEN VARIOUS INDIVIDUALS CHARGED, AMONG OTHER THINGS, WITH A
CONSPIRACY TO ENGAGE IN ILLEGAL ADVOCACY.  UPON REVERSAL HERE FOR ERROR
IN THE TRIAL COURT'S CHARGE ON THE NATURE OF THE ADVOCACY PROSCRIBED BY
THE SMITH ACT, THIS COURT, IN THE EXERCISE OF ITS POWERS UNDER 28
U.S.C. SEC. 2106, (FN22) WENT ON TO CONSIDER THE ADEQUACY OF THE
EVIDENCE FOR THE PURPOSE OF DETERMINING AS TO WHICH DEFENDANTS AN
ACQUITTAL SHOULD BE ORDERED, AND AS TO WHICH ONES THE WAY FOR A NEW
TRIAL SHOULD BE LEFT OPEN.  IN THE PROCESS IT WAS STATED THAT THE
GOVERNMENT'S PARTY-CONSPIRATORIAL-NEXUS THEORY WAS UNAVAILING BECAUSE
THE EVIDENCE FELL SHORT OF ESTABLISHING THAT THE PARTY'S ADVOCACY
CONSTITUTED "A CALL TO FORCIBLE ACTION" FOR THE ACCOMPLISHMENT OF
IMMEDIATE OR FUTURE OVERTHROW, IN CONTRAST TO THE TEACHING OF MERE
"ABSTRACT DOCTRINE" FAVORING THAT END.  354 U.S., AT 329.  AT THE SAME
TIME, HOWEVER, IT WAS FOUND THAT THE RECORD REFLECTED CERTAIN EPISODES
WHICH, IT WAS CONSIDERED, MIGHT PERMISSIBLY LEND THEMSELVES TO AN
INFERENCE OF ILLEGAL ADVOCACY BY PARTICULAR PARTY MEMBERS (SEE ID., AT
331-333).  IT WAS CONCLUDED, HOWEVER, THAT THESE AND SIMILAR EPISODES
WERE TOO "SPORADIC" AND REMOTE (ID., 330) TO JUSTIFY THEIR ATTRIBUTION
TO THE PARTY, POSSIBLY CASTING ITS ABSTRACT TEACHING OF THE "COMMUNIST
CLASSICS" IN A DIFFERENT MOLD.  ACCORDINGLY, THE COURT DIRECTED AN
ACQUITTAL OF THOSE DEFENDANTS WHO HAD NOT THEMSELVES BEEN CONNECTED
WITH SUCH EPISODES. 

WE AGREE WITH PETITIONER THAT THE EVIDENTIARY QUESTION HERE IS
CONTROLLED IN LARGE PART BY YATES.  THE DECISION IN YATES RESTED ON THE
VIEW (NOT ARTICULATED IN THE OPINION, THOUGH PERHAPS IT SHOULD HAVE
BEEN) THAT THE SMITH ACT OFFENSES, INVOLVING AS THEY DO SUBTLER
ELEMENTS THAN ARE PRESENT IN MOST OTHER CRIMES, CALL FOR STRICT
STANDARDS IN ASSESSING THE ADEQUACY OF THE PROOF NEEDED TO MAKE OUT A
CASE OF ILLEGAL ADVOCACY.  THIS PREMISE IS AS APPLICABLE TO
PROSECUTIONS UNDER THE MEMBERSHIP CLAUSE OF THE SMITH ACT AS IT IS TO
CONSPIRACY PROSECUTIONS UNDER THAT STATUTE AS WE HAD IN YATES. 

THE IMPACT OF YATES WITH RESPECT TO THIS PETITIONER'S EVIDENTIARY
CHALLENGE IS NOT LIMITED, HOWEVER, TO THAT DECISION'S REQUIREMENT OF
STRICT STANDARDS OF PROOF.  YATES ALSO ARTICULATES GENERAL CRITERIA FOR
THE EVALUATION OF EVIDENCE IN DETERMINING WHETHER THIS REQUIREMENT IS
MET.  THE YATES OPINION, THROUGH ITS CHARACTERIZATIONS OF LARGE
PORTIONS OF THE EVIDENCE WHICH WERE EITHER DESCRIBED IN DETAIL OR
REFERRED TO BY REFERENCE TO THE RECORD, INDICATES WHAT TYPE OF EVIDENCE
IS NEEDED TO PERMIT A JURY TO FIND THAT (A) THERE WAS "ADVOCACY OF
ACTION" AND (B) THE PARTY WAS RESPONSIBLE FOR SUCH ADVOCACY.    FIRST,
YATES MAKES CLEAR WHAT TYPE OF EVIDENCE IS NOT IN ITSELF SUFFICIENT TO
SHOW ILLEGAL ADVOCACY.  THIS CATEGORY INCLUDES EVIDENCE OF THE
FOLLOWING:  THE TEACHING OF MARXISM-LENINISM AND THE CONNECTED USE OF
MARXIST "CLASSICS" AS TEXTBOOKS; THE OFFICIAL GENERAL RESOLUTIONS AND
PRONOUNCEMENTS OF THE PARTY AT PAST CONVENTIONS; DISSEMINATION OF THE
PARTY'S GENERAL LITERATURE, INCLUDING THE STANDARD OUTLINES ON MARXISM;
THE PARTY'S HISTORY AND ORGANIZATIONAL STRUCTURE; THE SECRECY OF
MEETINGS AND THE CLANDESTINE NATURE OF THE PARTY GENERALLY; STATEMENTS
BY OFFICIALS EVIDENCING SYMPATHY FOR AND ALLIANCE WITH THE U.S.S.R. IT
WAS THE PREDOMINANCE OF EVIDENCE OF THIS TYPE WHICH LED THE COURT TO
ORDER THE ACQUITTAL OF SEVERAL YATES DEFENDANTS, WITH THE COMMENT THAT
THEY HAD NOT THEMSELVES "MADE A SINGLE REMARK OR BEEN PRESENT WHEN
SOMEONE ELSE MADE A REMARK WHICH WOULD TEND TO PROVE THE CHARGES
AGAINST THEM."  HOWEVER, THIS KIND OF EVIDENCE, WHILE INSUFFICIENT IN
ITSELF TO SUSTAIN A CONVICTION, IS NOT IRRELEVANT.  SUCH EVIDENCE, IN
THE CONTEXT OF OTHER EVIDENCE, MAY BE OF VALUE IN SHOWING ILLEGAL
ADVOCACY. 

SECOND, THE YATES OPINION ALSO INDICATES WHAT KIND OF EVIDENCE IS
SUFFICIENT.  THERE THE COURT POINTED TO TWO SERIES OF EVENTS WHICH
JUSTIFIED THE DENIAL OF DIRECTED ACQUITTALS AS TO NINE OF THE YATES
DEFENDANTS.  THE COURT NOTED THAT WITH RESPECT TO SEVEN OF THE
DEFENDANTS, MEETINGS IN SAN FRANCISCO WHICH WERE DESCRIBED BY THE
WITNESS FOARD MIGHT BE CONSIDERED TO BE "THE SYSTEMATIC TEACHING AND
ADVOCACY OF ILLEGAL ACTION WHICH IS CONDEMNED BY THE STATUTE."  354
U.S., AT 331.  IN THOSE MEETINGS, A SMALL GROUP OF MEMBERS WERE NOT
ONLY TAUGHT THAT VIOLENT REVOLUTION WAS INEVITABLE, BUT THEY WERE ALSO
TAUGHT TECHNIQUES FOR ACHIEVING THAT END.  FOR EXAMPLE, THE YATES
RECORD REVEALS THAT MEMBERS WERE DIRECTED TO BE PREPARED TO CONVERT A
GENERAL STRIKE INTO A REVOLUTION AND TO DEAL WITH NEGROES SO AS TO
PREPARE THEM SPECIFICALLY FOR REVOLUTION.  IN ADDITION TO THE SAN
FRANCISCO MEETINGS, THE COURT REFERRED TO CERTAIN ACTIVITIES IN THE LOS
ANGELES AREA "WHICH MIGHT BE CONSIDERED TO AMOUNT TO 'ADVOCACY OF
ACTION'" AND WITH WHICH TWO YATES DEFENDANTS WERE LINKED.  ID., 331
332.  HERE AGAIN, THE PARTICIPANTS DID NOT STOP WITH TEACHING OF THE
INEVITABILITY OF EVENTUAL REVOLUTION, BUT WENT ON TO EXPLAIN
TECHNIQUES, BOTH LEGAL AND ILLEGAL, TO BE EMPLOYED IN PREPARATION FOR
OR IN CONNECTION WITH THE REVOLUTION.  THUS, ONE MEMBER WAS
"SURREPTITIOUSLY INDOCTRINATED IN METHODS  ...  OF MOVING 'MASSES OF
PEOPLE IN TIME OF CRISIS'"; OTHERS WERE TOLD TO ADOPT SUCH RUSSIAN
PREREVOLUTIONARY TECHNIQUES AS THE DEVELOPMENT OF A SPECIAL
COMMUNICATION SYSTEM THROUGH A NEWSPAPER SIMILAR TO PRAVDA.  ID., 332. 
VIEWED TOGETHER, THESE EVENTS DESCRIBED IN YATES INDICATE AT LEAST TWO
PATTERNS OF EVIDENCE SUFFICIENT TO SHOW ILLEGAL ADVOCACY:  (A) THE
TEACHING OF FORCEFUL OVERTHROW, ACCOMPANIED BY DIRECTIONS AS TO THE
TYPE OF ILLEGAL ACTION WHICH MUST BE TAKEN WHEN THE TIME FOR THE
REVOLUTION IS REACHED; AND (B) THE TEACHING OF FORCEFUL OVERTHROW,
ACCOMPANIED BY A CONTEMPORARY, THOUGH LEGAL, COURSE OF CONDUCT CLEARLY
UNDERTAKEN FOR THE SPECIFIC PURPOSE OF RENDERING EFFECTIVE THE LATER
ILLEGAL ACTIVITY WHICH IS ADVOCATED.  COMPARE NOTO V. UNITED STATES,
POST, AT 297-299. 

FINALLY, YATES IS ALSO RELEVANT HERE IN INDICATING, AT LEAST BY
IMPLICATION, THE TYPE AND QUANTUM OF EVIDENCE NECESSARY TO ATTACH
LIABILITY FOR ILLEGAL ADVOCACY TO THE PARTY.  IN DISCUSSING THE
GOVERNMENT'S "CONSPIRATORIAL-NEXUS THEORY" THE COURT FOUND THAT THE
EVIDENCE THERE WAS INSUFFICIENT BECAUSE THE INCIDENTS OF ILLEGAL
ADVOCACY WERE INFREQUENT, SPORADIC, AND NOT FAIRLY RELATED TO THE
PERIOD COVERED BY THE INDICTMENT.  IN ADDITION, THE COURT INDICATED
THAT THE ILLEGAL ADVOCACY WAS NOT SUFFICIENTLY TIED TO OFFICIALS WHO
SPOKE FOR THE PARTY AS SUCH. 

THUS, IN SHORT, YATES IMPOSES A STRICT STANDARD OF PROOF, AND
INDICATES THE KIND OF EVIDENCE THAT IS INSUFFICIENT TO SHOW ILLEGAL
ADVOCACY UNDER THAT STANDARD, THE KIND OF EVIDENCE THAT IS SUFFICIENT,
AND WHAT PATTERN OF EVIDENCE IS NECESSARY TO HOLD THE PARTY RESPONSIBLE
FOR SUCH ADVOCACY.  WITH THESE CRITERIA IN MIND, WE NOW PROCEED TO AN
EXAMINATION OF THE EVIDENCE IN THIS CASE. 

WE BEGIN WITH WHAT WAS ALSO PRESENT IN YATES, THE GENERAL EVIDENCE AS
TO THE DOCTRINES, ORGANIZATION, AND TACTICAL PROCEDURES OF THE
COMMUNIST PARTY, EXPOSITED BY LAUTNER, THE GOVERNMENT'S FOUNDATIONAL
WITNESS BOTH HERE AND IN YATES.  TOGETHER WITH DOCUMENTARY EVIDENCE,
LAUTNER'S TESTIMONY, BASED ON HIGH-LEVEL PARTICIPATION IN PARTY AFFAIRS
FROM 1929 TO 1950, FURNISHED THE NECESSARY BACKGROUND IN PARTY THEORY
AND TERMINOLOGY WHICH IS CRUCIAL TO THE PROPER APPRECIATION OF THE
TENOR OF PARTY PRONOUNCEMENTS, FOR THESE PRONOUNCEMENTS, TAKEN OUT OF
THIS LARGER CONTEXT, MIGHT APPEAR HARMLESS AND PEACEABLE WITHOUT IN
REALITY BEING SO.  THE DISTINCTION THAT WAS DRAWN IN YATES BETWEEN
THEORETICAL ADVOCACY AND ADVOCACY OF VIOLENCE AS A RULE OF ACTION IS OF
COURSE BASIC, BUT WHEN THE TEACHING IS CARRIED OUT IN A SPECIAL
VOCABULARY, KNOWLEDGE OF THAT VOCABULARY IS AT LEAST RELEVANT TO AN
UNDERSTANDING OF THE QUALITY AND TENOR OF THE TEACHING. 

LAUTNER'S TESTIMONY, HAVING COVERED THE PRE-WAR HISTORY OF THE PARTY,
PASSED TO THE 1945 RECONSTITUTION OF THE ORGANIZATION.  PRIOR TO THAT
TIME THE PARTY, AS THE COMMUNIST POLITICAL ASSOCIATION, HAD ADHERED TO
THE POSITION THAT THE CHANGE TO A COMMUNIST SOCIETY COULD BE ACHIEVED
THROUGH PEACEFUL, DEMOCRATIC MEANS.  THE RECONSTITUTION, WHICH WAS
FINALLY APPROVED AT A NATIONAL CONVENTION IN JULY OF 1945, INVOLVED A
RETURN TO THE PRINCIPLES OF MARXISM-LENINISM.  AS FOUND IN THE SO
CALLED COMMUNIST CLASSICS, THE ADOPTION OF A PROGRAM OF INDUSTRIAL
CONCENTRATION, THE INCREASED EFFORT AMONG NEGROES, ESPECIALLY IN THE
SOUTH, THE COMPLETE REPUDIATION OF THE FORMER PARTY LEADER, BROWDER,
AND HIS DOCTRINE OF "REVISIONISM," ALL SIGNIFIED, SO LAUTNER TESTIFIED,
THAT THE UNITED STATES WAS HENCEFORTH TO BE REGARDED AS NO EXCEPTION TO
THE TEACHINGS OF LENIN THAT COMMUNISM COULD ONLY BE ACHIEVED IN AN
INDUSTRIALIZED NATION SUCH AS THIS BY RESORT TO VIOLENT REVOLUTION, AND
THAT A BELIEF IN PEACEFUL MEANS WAS FOOLISHNESS OR TREACHERY.  LAUTNER
TESTIFIED THAT THE INDUSTRIAL CONCENTRATION PROGRAM, AS WELL AS THE
EMPHASIS ON THE NEGRO MINORITY, WAS AN ARTICULATION OF THIS DOCTRINE,
IN THAT IT INVOLVED A CONCENTRATION ON THOSE ELEMENTS IN SOCIETY WHICH
THE PARTY BELIEVED COULD DO MOST DAMAGE, IN TIME OF CRISIS, TO THE
EXISTING SOCIAL FABRIC IN RELATION TO THEIR NUMBERS, AND THAT VICTORY
AT THE POLLS WAS NOT ITS CONCERN.  LAUTNER TESTIFIED THAT IT WAS
FURTHER RESOLVED AT THE 1945 NATIONAL CONVENTION THAT IN ORDER TO
IMPLEMENT THE PRINCIPLES OF THE RECONSTITUTION, A PROGRAM OF THOROUGH
RE-EDUCATION OF THE WHOLE PARTY MEMBERSHIP SHOULD BE UNDERTAKEN, AND
LAUTNER HIMSELF WAS CHARGED WITH THE DUTY OF CARRYING OUT THIS RE
EDUCATION AS A DISTRICT ORGANIZER AND STATE CHAIRMAN.  THE BALANCE OF
LAUTNER'S TESTIMONY WAS DEVOTED TO A DETAILED DESCRIPTION OF THE
ELABORATE UNDERGROUND "APPARATUS" WHICH HE AND OTHERS WERE CHARGED WITH
SETTING UP IN THE VARIOUS PORTIONS OF THE COUNTRY ASSIGNED TO THEM. 

MRS. HARTLE TESTIFIED AS TO HER ACTIVITIES IN THE PARTY, PRIMARILY IN
THE PACIFIC NORTHWEST AREA, FROM 1934 TO APPROXIMATELY 1952.  MRS.
HARTLE CONFIRMED, IN MANY RESPECTS, LAUTNER'S TESTIMONY AS TO PARTY
TEACHING AND DOCTRINE THROUGHOUT THIS PERIOD.  AFTER THE 1945
RECONSTITUTION SHE WAS SENT TO THE NATIONAL TRAINING SCHOOL IN NEW
YORK, WHERE THIRTY "OFFICERS AND FUNCTIONARIES" FROM VARIOUS PARTS OF
THE COUNTRY WERE "RE-EDUCATED" IN ACCORDANCE WITH THE DECISIONS AND
RESOLUTIONS OF THE 1945 CONVENTION.  SHE WAS TAUGHT ABOUT "DIALECTICAL
MATERIALISM," AND THE THEORY OF STRUGGLE BETWEEN THE CAPITALIST CLASS
AND THE WORKING CLASS.  THEY WERE TAUGHT "AND REFERENCE WAS MADE TO A
QUOTATION ...  THAT IT IS THE DUTY OF A REVOLUTIONARY NOT TO TRY TO
GLOSS OVER THIS CLASS STRUGGLE OR TO TRY TO COMPROMISE IT, BUT TO
UNRAVEL IT, TO ALLOW THIS CLASS STRUGGLE AND HELP THIS CLASS STRUGGLE
TO UNFOLD, THE CLASH TO PROCEED."  THE CLASS WAS TOLD THAT "IT IS THE
DUTY OF A MARXIST-LENINIST TO BE A REVOLUTIONARY AND NOT A REFORMIST." 
THEY WERE FURTHER INSTRUCTED "THAT THE UNITED STATES  ... WAS
OBJECTIVELY AT THE STAGE FOR PROLETARIAN REVOLUTION," THAT THE TIME FOR
THE PROLETARIAT REVOLUTION WOULD COME WHEN THE OBJECTIVE CONDITIONS OF
POLITICAL OR ECONOMIC CRISIS COINCIDED WITH THE "SUBJECTIVE CONDITION"
OF A COMMUNIST PARTY WHICH WAS LARGE ENOUGH, WITH ENOUGH "INFLUENCE"
AMONG THE WORKING CLASSES, "TO GIVE THE NECESSARY LEADERSHIP TO LEAD TO
THE SEIZURE OF POWER." 

MUCH OF THE TESTIMONY SUMMARIZED SO FAR MAY INDEED BE CONSIDERED TO
RELATE TO THE MERE THEORY OF REVOLUTION, ABSTRACT ADVOCACY.  HOWEVER,
THE TEACHING AT THE NATIONAL TRAINING SCHOOL ALSO DESCENDED TO A LOWER
LEVEL OF GENERALITY.  MRS. HARTLE WAS TOLD THAT THE "ROLE" OF THE
COMMUNIST PARTY WAS "PREPARING THE WORKERS AND THE PEOPLE TO BE READY
TO BE ABLE TO TAKE POWER, TO KNOW HOW TO TAKE POWER" WHEN A
"REVOLUTIONARY SITUATION AROSE."  AT THAT TIME, "THE PLAN AND PROGRAM
OF THE PARTY WOULD BE TO LEAD THE WORKING CLASS TO SEIZE POWER" AND "TO
SMASH THE BOURGEOIS STATE MACHINE."  WITH RESPECT TO THIS LATTER TASK,
THE CLASS WAS TOLD: 

"  ...  THE BOURGEOIS STATE MACHINE IS NOT SMASHED AFTER THE SEIZURE
OF POWER, BUT IN THE COURSE OF SEIZING POWER THAT THE ARMIES, THE
POLICE, THE PRISONS HAVE TO BE DEALT WITH AND SMASHED UP AND RENDERED
INOPERATIVE IN THE COURSE OF THE SEIZURE OF POWER, THAT OTHER MATTERS,
THAT SOME OTHER MATTERS IN REPLACING THE, A STATE, SUCH AS THE, SOME OF
THE ADMINISTRATIVE APPARATUS AND SOME OTHER MATTERS WOULD TAKE A LONGER
PERIOD OF TIME, BUT THE FORCIBLE ELEMENTS OF THE CAPITALIST STATE MUST
BE SMASHED IN THE COURSE OF TAKING POWER, BUT SOME OTHER THINGS LIKE
REORGANIZING THE BANKING SYSTEM, OR SOME MATTERS LIKE THAT, COULD BE
DONE IN A SOMEWHAT LONGER PROCESS." 

IN PRESSING TOWARD THE FULFILLMENT OF THE "SUBJECTIVE CONDITIONS"
NECESSARY FOR SUCH ACTION, MRS. HARTLE WAS TAUGHT THAT "THE STRUGGLES
AND ACTIVITIES OF THE COMMUNIST PARTY PREPARE THE WORKING CLASS FOR
THIS ACT OF SEIZURE OF POWER," AND THE HISTORY OF THE RUSSIAN COMMUNIST
PARTY AND REVOLUTION WAS TAUGHT IN THE SCHOOL AND THE EVENTS AND
PRINCIPLES OF THIS HISTORY WERE CONSTANTLY RELATED TO CONTEMPORARY
CONDITIONS IN THE UNITED STATES.  THUS, FOR EXAMPLE, THE CLASS WAS TOLD
THAT THE COALITION OF WORKERS AND PEASANTS WHICH HAD PROVED SO
SUCCESSFUL IN RUSSIA SHOULD HAVE ITS COUNTERPART IN AMERICA IN A
COALITION OF WORKERS AND NEGROES, ESPECIALLY IN THE SOUTH. 

FOLLOWING HER CLASSES AT THE NATIONAL TRAINING SCHOOL, MRS. HARTLE
RETURNED TO WASHINGTON, WHERE SHE HELPED TO RECRUIT AND ORGANIZE IN
"UNDERGROUND FASHION" THE EMPLOYEES OF THE BOEING AIRCRAFT PLANT IN
THAT STATE.  AT THE SAME TIME, MRS. HARTLE WAS ACTIVE IN PARTY SCHOOLS
IN HER AREA.  SHE TESTIFIED THAT SHE HAD BOTH BEEN INSTRUCTED AND HAD
HERSELF TAUGHT: 

"  ...  THE MEANS BY WHICH THE ULTIMATE GOAL MIGHT BE ATTAINED WAS
THAT THOSE MEANS WOULD BE FORCIBLE.  THE TEACHING WAS THAT ANY
TEACHING, ANY THEORY OF A PEACEFUL ROAD TO SOCIALISM, OR A GROWING OVER
FROM CAPITALISM TO SOCIALISM WAS A BETRAYAL OF THE WORKING CLASS AND
THAT THE COMMUNIST PARTY LEADING THE WORKING CLASS WOULD HAVE TO ARM IT
IN THE FIRST PLACE WITH THE THEORY THAT THE WORKERS MUST KNOW AND MUST
BE PREPARED TO KNOW THAT THEY CAN ONLY TAKE POWER FORCIBLY. 

     *         *    *         *         * 

"THE ACTION THAT COMMUNIST PARTY MEMBERS SHOULD TAKE IN PREPARING FOR
THE ULTIMATE GOAL THAT I WAS TAUGHT AND THAT I TAUGHT, WERE TO BUILD
THE COMMUNIST PARTY AS THE VANGUARD PARTY OF THE WORKING CLASS, A
THEORETICALLY EQUIPPED PARTY, EQUIPPED WITH THE THEORY OF MARXISM
LENINISM, A HIGHLY ORGANIZED PARTY THAT COULD ACT AS A UNIT, AS A
MONOLITHIC WHOLE, WITH DEMOCRATIC CENTRALISM, THE PRINCIPLE GUIDING IT
...  AND THAT THE COMMUNIST PARTY SHOULD BE THE CONNECTION BETWEEN THE
VANGUARD AND THE WORKING CLASS MILLIONS IN THIS PREPARATION BY WORKING
WITH AND WINNING THE CONFIDENCE OF THE WORKING CLASS AND ALLIES OF THE
WORKING CLASS, SUCH AS, THE NEGRO PEOPLE, THE POOR FARMERS, OTHER
NATIONAL GROUPS, AND IN THIS WAY, IN THE COURSE OF STRUGGLE, CONSTANT
STRUGGLE TAKING THE FORMS OF STRIKES AND DEMONSTRATIONS AND PICKET
LINES AND MARCHES AND VARIOUS KINDS OF ACTIVITIES TO TRAIN THE WORKING
CLASS AND THE PEOPLE FOR REVOLUTIONARY BATTLE." 

THE WITNESS DURAN, WHO ATTENDED A PARTY SCHOOL IN LOS ANGELES IN
1951, DESCRIBED WHAT HE HAD BEEN TAUGHT BY ONE MOREAU, A MEMBER OF THE
NATIONAL EDUCATION COMMISSION OF THE COMMUNIST PARTY: 

"HE DIVIDED IN HIS EXPLANATION THE  ...  PROLETARIAT  ...  AS BEING
DIVIDED INTO TWO GROUPS.  THOSE IN INDUSTRY THAT WOULD LEAD THE
REVOLUTION, AND THOSE IN AGRICULTURE THAT WOULD FOLLOW, AND SPEAKING
ABOUT THE REVOLUTION, PROFESSOR MOREAU STATED TO THE CLASS IN A VERY
EMOTIONAL MANNER THAT HE COULD SEE HIMSELF CARRYING A GUN AGAINST THE
CAPITALIST S.O.B.'S AND EXPLAINED TO THE CLASS IT WAS ALL BASED ON THE
SCIENCE OF MARX AND LENIN. 

     *         *   *         *         * 

"IN DISCUSSING THE PROLETARIAN REVOLUTION MORE THOROUGHLY PROFESSOR
MOREAU EXPLAINED THROUGHOUT THE SCHOOL THAT THE PROLETARIAN REVOLUTION
WOULD ONLY COME ABOUT IF A BOLSHEVIK RANK AND FILE, THE SINCERE
COMMUNISTS, WOULD GET OUT AND TEACH, AND TEACH THE PEOPLE, THE
DESIRABILITY OF CHANGING THE SYSTEM AND THE NECESSITY OF CHANGING THEM,
AND IN DOING THAT, WE HAD TO TEACH THE PEOPLE THAT YOU CANNOT CHANGE
THE CAPITALIST SYSTEM TO A SOCIALIST SYSTEM, TO SOCIALISM SUCCESSFULLY,
THE PEACEFUL WAY; IT HAD TO BE ERUPTED FROM, AND HAD TO BE TAKEN AWAY
BY FORCE AND VIOLENCE, AWAY FROM THEM AND THE ENTIRE STATE MACHINERY OF
THE BOURGEOISIE SMASHED, THE F.B.I., THE COURTS AND THE ARMY AND THE
NAVY, WHATEVER WAS ON IT, WHAT - THE ENTIRE INSTRUMENTALITY OF THE
BOURGEOISIE HAD TO BE SMASHED AND SUBSTITUTED BY THE PROLETARIAN
MACHINERY.    "  ...  AND DURING THE PERIOD OF THE REVOLUTION THE
TRANSITION, THE VIOLENT TRANSITION, WE HAD TO MAKE MASS WORK TO GET THE
MASSES AWAY FROM THE BOURGEOISIE SO THEY WOULD NOT JOIN A
COUNTERREVOLUTION MOVEMENT. 

"IT MEANT AFTER THE PEOPLE OF THE COMMUNIST PARTY, THE VANGUARD, HAD
BECOME SATISFIED, THAT THE BOURGEOISIE MACHINERY WAS SMASHED, AND THEY
WERE IN CONTROL, THEN THEY ALSO HAD TO COLLECT GUNS FROM THE PEOPLE AND
CONTROL THE PEOPLE THEMSELVES. 

"Q.  DO I UNDERSTAND, MR. MOREAU THAT DURING THIS PERIOD OF
REVOLUTION THE PEOPLE, THAT IS, THE MASSES OF THE PEOPLE, WOULD BE
CARRYING GUNS? 

"A.  YES, SIR. 

"Q.  AND AFTER THE REVOLUTION DO I UNDERSTAND THAT THE PARTY WOULD GO
AROUND AND COLLECT THESE GUNS AND TAKE THEM AWAY FROM THE PEOPLE? 

"A.  YES, SIR; TAKE THEM AWAY FROM THOSE THAT HELPED THEM OVERTHROW
THE CAPITALIST SYSTEM IN ORDER TO ASSURE THE REVOLUTION ITSELF  ...  . 

"IMMEDIATELY AFTER THE OVERTHROW OF THE CAPITALIST SYSTEM AND
ESTABLISHMENT OF THE DICTATORSHIP OF THE PROLETARIAT, IT BECAME
NECESSARY FOR A COMMUNIST TO ESTABLISH RED ARMY IN THIS COUNTRY, NOT
ONLY TO SECURE AND MAINTAIN THE DICTATORSHIP OF THE PROLETARIAT, BUT
CONTROL THE PEOPLE AS WELL, AND THOSE PEOPLE THAT DID HELP OVERTHROW
THE GOVERNMENT WOULD NOT HAVE ANY CIVIL RIGHTS WHATSOEVER, NO VOTING
RIGHTS, OR ANYTHING; THEY WOULD BE DISHED OUT TO THEM ACCORDING TO THE
WAY THEY FELT, WAY THEY FELL IN WITH THE COMMUNIST OFFICE BY THE
DICTATORSHIP. 

"Q.  NOW, MR. DURAN, WHAT, IF ANYTHING, DID MR. MOREAU TEACH YOU IN
THIS SCHOOL ABOUT THE ROLE THAT WOULD BE PLAYED BY THE COMMUNIST PARTY
DURING THIS PERIOD OF REVOLUTION WHEN THE GOVERNMENT WOULD BE
OVERTHROWN BY FORCE AND VIOLENCE? 

"A.  THE ROLE OF THE COMMUNIST PARTY, AND SPECIFICALLY WITHIN THE
COMMUNIST PARTY, THE BOLSHEVIKS WAS TO PLAY A VANGUARD ROLE, A LEADING
ROLE; THAT IS EXPLAINED SCIENTIFICALLY IN THAT SO THAT FIRST WE TEACH
THE PEOPLE THE DESIRABILITY OF OVERTHROWING THEM AND TEACH THEM THE, IT
COULD ONLY BE DONE THROUGH THE PROLETARIAN REVOLUTION, AND THEN WHEN
THE TIME IS RIPE WE COULD STAMPEDE THEM AGAINST THE CAPITALIST CLASS." 

DURAN ALSO TESTIFIED TO WHAT HE HAD BEEN TAUGHT BY ART BERRY,
DISTRICT ORGANIZER FOR SEVEN STATES, IN A COLORADO SCHOOL IN 1952:  "
...  WE WERE DISCUSSING THE SCIENTIFIC APPLICATION OF MARX AND LENIN TO
THE TRANSITION PERIOD BETWEEN CAPITALISM AND SOCIALISM, AND HE
DEMONSTRATED THIS WITH THE KETTLE OF WATER, THAT YOU COULD PUT A
QUANTITATIVE AMOUNT OF WATER IN A KETTLE AND SET IT SOMEWHERE, NOTHING
WOULD HAPPEN, JUST LIKE THE MASSES, NOTHING DOES HAPPEN. 

"  ...  HE SAID, HOWEVER, IF YOU GET THAT SAME AMOUNT, SAME KETTLE
WITH THE SAME AMOUNT OF WATER IN IT, AND PUT FIRE UNDERNEATH IT, THEN
YOU BEGIN TO GET QUANTITATIVE CHANGES, AND EVENTUALLY IT REACHES A
NODULE POINT TO WHERE IT HAS A QUALITATIVE AND ABRUPT TRANSITION INTO
STEAM.  HE CONTINUED, SAME APPLIED TO THE DEVELOPMENT OF THE REVOLUTION
IN THIS SENSE, THE AMERICAN PEOPLE WILL NOT AND CANNOT MAKE A
SUCCESSFUL CHANGE OVER FROM CAPITALISM TO SOCIALISM BY THEMSELVES, LIKE
THE FIRE UNDERNEATH THE WATER, THE COMMUNIST PARTY TEACHES AND LEADS
THEM TO WHERE WHEN THE SOCIETY REACHES THAT NODULE POINT, THE COMMUNIST
PEOPLE TEACHES THE PEOPLE BEFORE AND THEN LEADS THEM TO MAKE THAT
ABRUPT CHANGE INTO THE SOCIETY OF SOCIALISM. 

     *         *         *         *         * 

"SUBSTANTIALLY, WITHIN THE SAME EXPLANATION OF VIOLENT OVERTHROW OF
THE GOVERNMENT  ...  HE STATED THAT NOT ONLY WOULD IT BE THAT, BUT THAT
WE WOULD HAVE TO SET UP BARRICADES, ESTABLISH A CENTRAL POINT FROM
WHERE WE WOULD PARTICIPATE FROM; HE STATED THE 'WE' LITERALLY SPEAKING
'WE', WOULD HAVE TO HAVE A CENTRAL POINT BECAUSE DURING THE REVOLUTION
IT MAY BECOME NECESSARY TO EBB, RETREAT IN CERTAIN BATTLES, AND WE
WOULD HAVE TO LEARN TO RETREAT IN AN ORGANIZATIONAL WAY AND A CORRECT
WAY.  IT WAS ESSENTIAL TO LEARN TO EBB AS IT WAS TO FLOW ON THE
REVOLUTION. 

"IN THE EBBING WE WERE TO SEE THAT WE EBB BEFORE THE ENEMY WIPED
EVERYBODY OUT.  EBBING TO THE CENTRAL POINT THAT HAD BEEN BARRICADED,
REORGANIZATION, AND THEN AT THE CORRECT TIME START FLOWING FORWARD IN
THE REVOLUTION." 

THE WITNESS OBADIAH JONES TESTIFIED CONCERNING A PARTY TRAINING
SCHOOL IN ST. LOUIS WHICH HE ATTENDED IN 1947.  JONES WAS TAUGHT "THAT
THE ONLY WAY THE NATIONAL PROBLEM COULD BE SOLVED WOULD BE IN
CONNECTION WITH THE PROLETARIAT REVOLUTION."  JONES WAS ALSO INSTRUCTED
AS TO THE NATURE OF A COMMUNIST ARMY: 

"A.  HE SAID GENERAL STAFF OF AN ARMY WAS DIFFERENT FROM THE
COMMUNIST PARTY  ...  GENERAL STAFF OF AN ARMY OPERATED FROM A SAFE
SPOT FROM BEHIND THE LINE AND LED THE ARMY FROM A FAR DISTANCE, AND
THAT THE COMMUNIST PARTY WENT FORTH AND FOUGHT WITH THE WORKERS. 

"Q.  DID HE SAY ANYTHING WITH REFERENCE TO THE TECHNIQUES? 

"A.  YES, HE SAID THAT YOU COULDN'T BE A GOOD LEADER WITHOUT KNOWING
ALL OF THE TECHNIQUES OF FIGHTING. 

"Q.  DID HE SAY ANYTHING WITH RESPECT TO CARRYING OUT INSTRUCTIONS? 

"A.  YES, SIR. 

"Q.  WHAT DID HE SAY IN THAT CONNECTION? 

"A.  HE SAID THAT CAPITALISTS IN THE ARMY DID NOT CARRY OUT THE
INSTRUCTIONS IN FULL, BUT THE COMMUNISTS DID, IRREGARDLESS OF WHAT THE
COST WOULD BE, THEY WOULD CARRY OUT INSTRUCTIONS COMPLETELY." 

AT THE FINAL SESSION, THE STUDENTS WERE REQUIRED BY THE INSTRUCTOR TO
TAKE A PLEDGE: 

"THE PLEDGE WAS EACH OF US ARE COMMUNISTS OR MEMBERS OF THE PARTY AND
EACH OF US HAVE A RESPONSIBILITY AND WE MUST CARRY OUT OUR
RESPONSIBILITY AND WORK FOR THE INTERESTS OF THE PARTY AND ITS
RECIPIENTS AND CARRY OUT THE FULL WILL OF THE PARTY EVEN THOUGH IT
MEANT TO FIGHT AND TO KILL, WE MUST CARRY OUT THE DEMANDS OF THE PARTY
AND ALL OF THEM." 

THE WITNESSES CLONTZ, CHILDS, AND REAVIS TESTIFIED PRIMARILY AS TO
THEIR DEALINGS WITH PETITIONER SCALES.  WE REGARD THIS TESTIMONY, WHICH
FINDS NO COUNTERPART IN THE YATES RECORD WITH RESPECT TO ANY OF THE
DEFENDANTS WHOSE ACQUITTAL WAS DIRECTED, AS BEING OF SPECIAL IMPORTANCE
IN TWO WAYS:  IT SUPPLIES SOME OF THE STRONGEST AND MOST UNEQUIVOCAL
EVIDENCE AGAINST THE PARTY BASED ON THE STATEMENTS AND ACTIVITIES OF A
MAN WHOSE WORDS AND DEEDS, BY VIRTUE OF HIS HIGH PARTY POSITION, CARRY
SPECIAL WEIGHT IN DETERMINING THE CHARACTER OF THE PARTY FROM THE
STANDPOINT OF THE SMITH ACT; AND IT APPEARS CLEARLY DISPOSITIVE AS TO
THE QUALITY OF PETITIONER'S PARTY MEMBERSHIP, AND HIS KNOWLEDGE AND
INTENT, WHEN WE COME TO CONSIDER HIM NOT AS A PARTY OFFICIAL BUT AS THE
DEFENDANT IN THIS CASE.  (FN23) 

IN 1948 RALPH C. CLONTZ, JR., THEN A STUDENT AT DUKE LAW SCHOOL,
UNDERTOOK TO FURNISH THE F.B.I. WITH INFORMATION HE HAD GAINED ABOUT
COMMUNIST PARTY ACTIVITIES IN NORTH CAROLINA, AND TO VOLUNTEER HIS
SERVICES IN ATTEMPTING TO PENETRATE THE PARTY TO ACQUIRE FURTHER
INFORMATION.  AS A RESULT, IN SEPTEMBER OF THAT YEAR, CLONTZ SENT A
POSTCARD TO PETITIONER, INFORMING HIM THAT HE WAS A LAW STUDENT AND
THAT HE WAS INTERESTED IN COMMUNISM.  PETITIONER REPLIED BY SENDING
CLONTZ "A LARGE CARDBOARD BOX FILLED WITH COMMUNIST LITERATURE."  AN
ACCOMPANYING LETTER, HEADED "CAROLINA DISTRICT COMMUNIST PARTY U.S.A." 
WITH THE NOTATION "JUNIUS SCALES, CHAIRMAN," EXPLAINED: 

"UNDER SEPARATE COVER I HAVE ALREADY SENT YOU A RATHER VARIED SAMPLE
OF OUR LITERATURE.  I HOPE YOU WILL GIVE IT CLOSE ATTENTION.  IF I CAN
DISCUSS ANY MATTER RELATING TO MY PARTY AND ITS PROGRAM WITH YOU IN
PERSON, I WILL BE GLAD TO DO SO." 

SEVERAL DAYS LATER CLONTZ WENT TO VISIT PETITIONER AND THUS BEGAN A
RELATIONSHIP WHICH WAS TO BRING HIM INTO INTIMATE CONTACT WITH THE
COMMUNIST PARTY, ITS TEACHINGS, PURPOSES AND ACTIVITIES. 

AT AN EARLY MEETING BETWEEN THE TWO, PETITIONER TOLD CLONTZ THAT IT
WAS IMPOSSIBLE FOR THE COMMUNIST PARTY TO SUCCEED TO POWER THROUGH
EDUCATING THE PEOPLE IN THIS COUNTRY AND GAINING THEIR VOTES AT THE
POLLS, BUT THAT A FORCEFUL REVOLUTION WOULD BE NECESSARY.  AT A LATER
MEETING, THE DISCUSSION WAS NOT LIMITED TO THE THEORETICAL
INEVITABILITY OF REVOLUTION, BUT WENT BEYOND THE THEORY ITSELF TO AN
EXPLANATION OF "BASIC STRATEGY" WHICH THE COMMUNIST PARTY WAS USING TO
GIVE CONCRETE FOUNDATION TO THE THEORY, I.E., TO BRINGING ABOUT THE
REVOLUTION: 

"THE DEFENDANT (PETITIONER) EXPLAINED THAT BASICALLY THEIR STRATEGY
WAS BOTTOMED ON A CONCEPT THAT THERE WERE TWO CLASSES OF PEOPLE IN THIS
COUNTRY, THAT COULD BE USED BY THE COMMUNIST PARTY TO FOMENT A
REVOLUTION. 

"THE FIRST CLASS HE TERMED THE WORKING CLASS OR PROLETARIAT, WORKING
CLASS, HE SAID, HAD AS ITS NATURAL BORN LEADERS OR VANGUARD, THE
COMMUNIST PARTY. 

"THE SECOND CLASS, HE DESCRIBED, IN THIS COUNTRY WAS WHAT HE TERMED
THE NEGRO NATION.  THE NEGRO NATION HE DESCRIBED AS A SEPARATE NATION
IN WHAT HE TERMED THE BLACK BELT, INCLUDING THIRTEEN SOUTHERN STATES,
AND THE STRATEGY OF THE COMMUNIST PARTY WAS TO BRING THE WORKING CLASS,
LED BY THE COMMUNIST PARTY, AND WHAT HE TERMED THE NEGRO NATION,
TOGETHER, TO BRING ABOUT A FORCEFUL OVERTHROW OF THE GOVERNMENT. 

"NOW SCALES AND THE COMMUNIST PARTY TAUGHT THAT THE BASIC STRATEGY OF
THE COMMUNIST PARTY WOULD NEVER CHANGE, BUT THAT TACTICS MIGHT BE
ALTERED AS THE SITUATION CHANGED." 

ON PETITIONER'S INVITATION, CLONTZ JOINED THE COMMUNIST PARTY ON
JANUARY 17, 1950.  HE WAS NOT ASSIGNED TO A PARTICULAR GROUP BUT BECAME
A MEMBER "AT LARGE," IN ORDER TO CONTINUE HIS INSTRUCTION UNDER
PETITIONER.  IN THE COURSE OF THIS INSTRUCTION, PETITIONER REPEATEDLY
TOLD CLONTZ OF THE NECESSITY FOR REVOLUTION TO BRING ABOUT THE
DICTATORSHIP OF THE PROLETARIAT.  SCALES ANALOGIZED THE SITUATION IN
THE UNITED STATES TO THAT IN RUSSIA PRIOR TO THE 1917 REVOLUTION.  HE
POINTED OUT THAT REVOLUTION WOULD BE "EASIER" IN THIS COUNTRY THAN IT
HAD BEEN IN RUSSIA: 

"THAT WHILE IN THE SOVIET UNION THERE HAD BEEN NO ONE TO HELP THE
SOVIET PARTY, THAT IN THIS COUNTRY WHEN THE REVOLUTION STARTED, WE
WOULD HAVE THE BENEFIT OF THE HELP FROM THE MOTHER COUNTRY, RUSSIA, IN
BRINGING ABOUT OUR OWN REVOLUTION, BECAUSE PART OF THE PURPOSES OF THE
COMMUNIST PARTY IN THE SOVIET UNION WAS INTERNATIONAL IN SCOPE AND THAT
WE NATURALLY WOULD CONTINUE TO RECEIVE HELP IN ALL CIRCUMSTANCES FROM
THE SOVIET PARTY WHEN THE REVOLUTION WAS STARTED HERE IN THIS
COUNTRY." 

PETITIONER EXPLAINED THAT THE SOVIET UNION COULD NOT BE EXPECTED TO
LAND TROOPS TO START A REVOLUTION HERE.  A SIMILAR PROCEDURE HAD BEEN
UNSUCCESSFUL IN CHINA.  RATHER, HE SAID "THAT WE COMMUNISTS IN THIS
COUNTRY WOULD HAVE TO START THE REVOLUTION, AND WE WOULD HAVE TO
CONTINUE FIGHTING IT," BUT THAT THE SOVIET UNION WOULD AID THE
COMMUNIST PARTY IN THIS ENDEAVOR BY FURNISHING IT "WITH EXPERIENCED
REVOLUTIONARIES FROM RUSSIA."  (FN24)  HE ADDED THAT "IF THE UNITED
STATES DECLARED WAR ON THE COMMUNISTS IN THEIR REVOLUTION, THEN THE
SOVIET UNION WOULD LAND TROOPS, AND HE SAID THAT WOULD BE A BLOODY TIME
FOR ALL."  WHEN ASKED BY CLONTZ WHEN ALL THIS WOULD OCCUR, SCALES NOTED
THAT A "DEPRESSION WOULD GREATLY ACCELERATE THE COMING OF THE
REVOLUTION" IF THE COMMUNISTS USED IT PROPERLY TO PREPARE THE MASSES OF
THE PEOPLE. 

PETITIONER ARRANGED FOR CLONTZ TO BE AWARDED A SCHOLARSHIP TO STUDY
IN NEW YORK AT THE JEFFERSON SCHOOL OF SOCIAL SCIENCE, AN OFFICIAL
COMMUNIST PARTY SCHOOL, DURING THE MONTH OF AUGUST 1950.  BECAUSE
CLONTZ ARRIVED AT A TIME WHEN FEW SCHEDULED COURSES WERE BEING OFFERED,
THE BULK OF HIS TRAINING AT THE SCHOOL WAS RECEIVED IN PRIVATE
INSTRUCTION FROM DOXEY A. WILKERSON, THE TEACHER WITH WHOM PETITIONER
HAD COMMUNICATED IN ARRANGING CLONTZ' SCHOLARSHIP.  (FN25)  WILKERSON,
LIKE PETITIONER, TOLD CLONTZ, "THAT THE COMMUNIST PARTY RECOGNIZED AND
EXPRESSED TO THEMSELVES THAT THE ONLY KIND OF MEANS WOULD BE PROPER
MEANS, WHICH WOULD BE FORCEFUL MEANS, THAT NO LONGER WAS THERE ANY EVEN
PRETENSE AMONG INTELLIGENT COMMUNISTS THAT ANY VOTING SYSTEM OR ANY
PEOPLE'S ELECTION COULD BRING THIS GOVERNMENT."  HE ALSO STATED, AS
SCALES HAD, THAT "THE REVOLUTION BASICALLY WOULD COME ABOUT BY
COMBINING THE FORCES OF WHAT HAD BEEN ALREADY IDENTIFIED AS THE NEGRO
NATION AND THE WORKING CLASS AS THE VANGUARD." 

IN LINE WITH THIS STRATEGY, WILKERSON ADVISED CLONTZ THAT HE SHOULD
NOT LET HIS MEMBERSHIP IN THE COMMUNIST PARTY BECOME KNOWN, THAT BY
REMAINING "UNDER COVER" HE "WOULD BE MUCH MORE HELPFUL TO THE PARTY
WHEN THE REVOLUTION CAME."  AS PART OF HIS UNDERCOVER ACTIVITY, CLONTZ
WAS DIRECTED TO ATTEMPT TO INFILTRATE VARIOUS ORGANIZATIONS OF THE
WORKING CLASS IN ORDER TO ACHIEVE "A BACKGROUND OF RESPECTABILITY" AND
TO BE ABLE TO LEAD SUCH ORGANIZATIONS "TOWARD THE GOAL OF THE COMMUNIST
PARTY, ...  THE UNDERMINING OF THE GOVERNMENT AND OVERTHROWING THE
GOVERNMENT, BRINGING COMMUNISM IN THE UNITED STATES."  BUT CLONTZ WAS
NOT TO LOSE CONTACT WITH THE PARTY, FOR IF HE "GOT ISOLATED WITHOUT
PARTY DIRECTION  ...  HIS EFFORTS WOULD BE PRETTY LARGELY WASTED."  IN
CONNECTION WITH THESE INSTRUCTIONS, WILKERSON MENTIONED "ONE OF THE
THINGS THAT FRIGHTENED THE UNITED STATES LEADERS WAS THEY KNEW THAT NOT
ONLY DID THEY HAVE TO CONTEND WITH CHINA AND THE OTHER COMMUNIST
DOMINATED COUNTRIES, BUT THAT ALSO IN EVERY CAPITALIST COUNTRY THE
WORKING CLASS PARTY, THE COMMUNISTS, WOULD BE WORKING FROM WITHIN." 

WHEN CLONTZ RETURNED TO NORTH CAROLINA, HE REPORTED TO PETITIONER ON
HIS ACTIVITIES AT THE JEFFERSON SCHOOL.  HE ALSO INFORMED PETITIONER,
UNDER INSTRUCTIONS FROM THE F.B.I., THAT HE WISHED TO MOVE TO NEW
YORK.  PETITIONER ARRANGED FOR CLONTZ TO REMAIN UNDER HIS DIRECTION AND
TO PAY DUES TO HIM, WHILE IN NEW YORK, RATHER THAN EFFECTING A FORMAL
TRANSFER.  CLONTZ MOVED TO NEW YORK IN MARCH OF 1951.  WHILE THERE
SCALES DIRECTED HIM TO "GET IN WITH THE A.C.L.U. ORGANIZATION TO REPORT
ON WHAT VALUE THEY MIGHT HAVE IN THE COMING STRUGGLE  ...  ."  CLONTZ
HAD ALSO BEEN ADVISED BY AN ASSOCIATE OF PETITIONER TO "INFILTRATE  ...
THE CIVILIAN DEFENSE SETUP."    THE WITNESSES CHILDS AND REAVIS ALSO
TESTIFIED TO THEIR RELATIONSHIP WITH SCALES, WHO AMONG OTHER THINGS
ARRANGED FOR THEIR ATTENDANCE AT PARTY SCHOOLS WHERE THEIR INSTRUCTION
FOLLOWED MUCH THE SAME PATTERN AS THAT DESCRIBED BY CLONTZ.  (FN26)  IN
1952 CHILDS ATTENDED A "PARTY TRAINING SCHOOL" OF WHICH PETITIONER WAS
A DIRECTOR.  THE SCHOOL WAS GIVEN "FOR OUTSTANDING CADRES IN THE NORTH
AND SOUTH CAROLINA AND VIRGINIA DISTRICTS OF THE COMMUNIST PARTY."  IT
WAS HELD ON A FARM AND STRICT SECURITY MEASURES WERE TAKEN.  THE
DISTRICT ORGANIZER OF VIRGINIA INSTRUCTED AT THE SCHOOL.  HE TOLD THE
STUDENTS THAT "THE ROLE OF THE COMMUNIST PARTY IS TO LEAD THE WORKING
MASSES TO THE OVERTHROW OF THE CAPITALIST GOVERNMENT."  WITH RESPECT TO
THE PRELIMINARY TASK OF GAINING THE "BROAD COALITION" NECESSARY TO
ACHIEVE THIS TASK, HE STATED THAT: 

"  ...  THE COMMUNIST PARTY HAS A PROGRAM OF INDUSTRIAL CONCENTRATION
IN WHICH THEY TRY TO GET PEOPLE, THAT IS, PEOPLE WHO ARE COMMUNIST
PARTY MEMBERS, INTO KEY SHOPS OR KEY INDUSTRIES WHICH THE PARTY HAS
DETERMINED OR DESIGNATED TO BE INDUSTRIAL CONCENTRATION INDUSTRIES OR
PLANTS.  THIS IS SO THAT THE COMMUNIST PARTY MEMBERS IN A PARTICULAR
PLANT WILL BE ABLE TO HAVE A CELL, OR A COMMUNIST PARTY GROUP IN WHICH
THEY WILL BE ABLE TO MORE EFFECTIVELY PLAN FOR SUCH THINGS AS
ATTEMPTING TO CONTROL THE UNION IN THAT PARTICULAR PLANT." 

AND, IN A COMPULSORY RECREATION PERIOD, THIS SAME INSTRUCTOR GAVE A
DEMONSTRATION OF JUJITSU AND, EXPLAINING THAT THE STUDENTS "MIGHT BE
ABLE TO USE THIS ON A PICKET LINE," HOW TO KILL A PERSON WITH A
PENCIL.  ACCORDING TO CHILDS' TESTIMONY, "WHAT HE SHOWED US TO DO WAS
TO TAKE OUR PENCIL, ... JUST TAKE THE PENCIL AND PLACE IT SIMPLY IN THE
PALM OF YOUR HAND SO THAT THE BACK WILL REST AGAINST THE BASE OF THE
THUMB, AND THEN WE WERE TO TAKE IT, AND THE PERSON, AND GIVE A QUICK
JAB SO THAT IT WOULD PENETRATE THROUGH HERE (DEMONSTRATING), AND ENTER
THE HEART, AND THEN IF WE COULD NOT DO THAT, WE JUST TAKE IT AND GRAB
IT AT THE BASE OF THE THROAT." 

REAVIS ATTENDED THE PARTY'S NEW YORK JEFFERSON SCHOOL IN 1942.  IN A
COURSE ON "NEGRO HISTORY" THE STUDENTS, DRAWN PRIMARILY FROM THE SOUTH,
WERE TAUGHT THAT "  ...  THE NEGRO PEOPLE WAS THE ONLY REVOLUTIONARY
GROUP WITHIN THE UNITED STATES THAT WE COULD ALIGN THEMSELVES WITH, AND
HOPE TO REACH THEIR GAINS THROUGH THE AVENUE OF FORCE AND VIOLENCE, BY
OVERTHROW OF THE GOVERNMENT, BY PROLETARIAT FACTION  ...  ."  REAVIS
WAS LATER ADVISED TO SEEK EMPLOYMENT AT THE WESTERN ELECTRIC PLANT IN
WINSTON-SALEM.  HE STATED: 

"I BUMPED INTO MR. SCALES AT HARVEY'S HOME AND I - THE REPORT SAID
...  THE ADVICE I'D BEEN GETTING WAS CONFIRMED BY HIM.  I ADVANCED THE
QUESTION ON WHAT I SHOULD DO IN CASE I DID GET EMPLOYMENT THERE AT
WESTERN ELECTRIC, AND I KNEW IT WAS A, GOVERNMENT WORK, WHAT I SHOULD
DO IN CASE I WAS ASKED TO SIGN CERTAIN PAPERS, AND I WAS TOLD TO DO THE
SAME, THAT THEY HAD WHEN SIGNING A TAFT-HARTLEY AFFIDAVIT, TO GO AHEAD
AND SIGN THEM, THAT BEFORE THEY DID, THE DEFENDANT ASKED ME IF I HAD
SIGNED ANY PAPERS THAT MIGHT BE USED AS PROOF THAT I WAS IN THE PARTY,
AND I DIDN'T REMEMBER ANY." 

WE CONCLUDE THAT THIS EVIDENCE SUFFICED TO MAKE A CASE FOR THE JURY
ON THE ISSUE OF ILLEGAL PARTY ADVOCACY.  DENNIS AND YATES HAVE
DEFINITELY LAID AT REST ANY DOUBT THAT PRESENT ADVOCACY OF FUTURE
ACTION FOR VIOLENT OVERTHROW SATISFIES STATUTORY AND CONSTITUTIONAL
REQUIREMENTS EQUALLY WITH ADVOCACY OF IMMEDIATE ACTION TO THAT END. 
341 U.S., AT 509; 354 U.S., AT 321.  HENCE THIS RECORD CANNOT BE
CONSIDERED DEFICIENT BECAUSE IT CONTAINS NO EVIDENCE OF ADVOCACY FOR
IMMEDIATE OVERTHROW. 

SINCE THE EVIDENCE AMPLY SHOWED THAT PARTY LEADERS WERE CONTINUOUSLY
PREACHING DURING THE INDICTMENT PERIOD THE INEVITABILITY OF EVENTUAL
FORCIBLE OVERTHROW, THE FIRST AND BASIC QUESTION IS A NARROW ONE:
WHETHER THE JURY COULD PERMISSIBLY INFER THAT SUCH PREACHING, IN WHOLE
OR IN PART, "WAS AIMED AT BUILDING UP A SEDITIOUS GROUP AND MAINTAINING
IT IN READINESS FOR ACTION AT A PROPITIOUS TIME  ...  THE KIND OF
INDOCTRINATION PREPARATORY TO ACTION WHICH WAS CONDEMNED IN DENNIS." 
YATES, SUPRA, AT 321-322.  ON THIS SCORE, WE THINK THAT THE JURY, UNDER
INSTRUCTIONS WHICH FULLY SATISFIED THE REQUIREMENTS OF YATES, (FN27)
WAS ENTITLED TO INFER FROM THIS SYSTEMATIC PREACHING THAT WHERE THE
EXPLICITNESS AND CONCRETENESS, OF THE SORT DESCRIBED PREVIOUSLY, SEEMED
NECESSARY AND PRUDENT, THE DOCTRINE OF VIOLENT REVOLUTION - ELSEWHERE
MORE A THEORY OF HISTORICAL PREDICTABILITY THAN A RULE OF CONDUCT - WAS
PUT FORWARD AS A GUIDE TO FUTURE ACTION, IN WHATEVER TONE, BE IT
EMOTIONAL OR CALCULATING, THAT THE AUDIENCE AND OCCASION REQUIRED; IN
SHORT, THAT "ADVOCACY OF ACTION" WAS ENGAGED IN. 

THE ONLY OTHER QUESTION ON THIS PHASE OF THE CASE IS WHETHER SUCH
ADVOCACY WAS SUFFICIENTLY BROADLY BASED TO PERMIT ITS ATTRIBUTION TO
THE PARTY.  WE THINK IT WAS.  THE ADVOCACY OF ACTION WAS NOT "SPORADIC"
(CF. P. 226, SUPRA), THE INSTANCES OF IT BEING NEITHER INFREQUENT,
REMOTE IN TIME NOR CASUAL.  (FN28)  IT CANNOT BE SAID THAT THE JURY
COULD NOT HAVE FOUND THAT THE CRIMINAL ADVOCACY WAS FULLY AUTHORIZED
AND CONDONED BY THE PARTY.  WE REGARD THE TESTIMONY OF THE WITNESSES,
WHOSE CREDIBILITY, OF COURSE, IS NOT FOR US, AS INDICATING A
SUFFICIENTLY SYSTEMATIC AND SUBSTANTIAL COURSE OF UTTERANCES AND
CONDUCT ON THE PART OF THOSE HIGH IN THE COUNCILS OF THE PARTY,
INCLUDING THE PETITIONER HIMSELF, TO ENTITLE THE JURY TO INFER THAT
SUCH ACTIVITIES REFLECTED TENETS OF THE PARTY.  THE TESTIMONY DESCRIBED
ACTIVITIES IN VARIOUS STATES, INCLUDING THE TEACHING AT SOME SEVEN
SCHOOLS, AMONG THEM THE NATIONAL PARTY SCHOOL.  THE WITNESSES TOLD OF
ADVOCACY BY HIGH PARTY OFFICIALS, INCLUDING THAT OF LEADERS OF THE
PARTY IN NINE STATES.  FURTHER, THERE WAS TESTIMONY THAT THE PARTY
FOLLOWED THE PRINCIPLE OF "DEMOCRATIC-CENTRALISM" WHEREBY A POSITION
ONCE ADOPTED BY THE PARTY MUST BE UNQUESTIONABLY ADHERED TO BY THE
WHOLE MEMBERSHIP.  THE CONFORMITY OF THE VIEWS EXPRESSED AND THE TERMS
EMPLOYED IN ADVOCATING VIOLENT OVERTHROW IN SUCH STATES AS WASHINGTON,
NORTH CAROLINA, MISSOURI, COLORADO AND VIRGINIA COULD REASONABLY BE
TAKEN BY THE JURY AS A PRACTICAL MANIFESTATION OF "DEMOCRATIC
CENTRALISM."  ANOTHER CONCRETE ILLUSTRATION OF THIS PRINCIPLE COULD
HAVE BEEN FOUND IN THE CIRCUMSTANCE THAT IN ALMOST EVERY INSTANCE WHERE
A SPEAKER ENGAGED IN ADVOCACY OF VIOLENT OVERTHROW, HE NOT ONLY
ADVOCATED VIOLENCE TO HIS AUDIENCE BUT URGED OTHERS TO GO OUT AND DO
LIKEWISE.  ALL OF THESE FACTORS COMBINE TO JUSTIFY THE INFERENCE THAT
THE ILLEGAL INDIVIDUAL ADVOCACY AS TO WHICH TESTIMONY WAS ADDUCED WAS
IN TRUTH THE EXPRESSION OF PARTY POLICY AND PURPOSE. 

THE REQUIREMENT OF PARTY IMPUTABILITY IS ADEQUATELY MET IN THE
RECORD.  (SEE NOTE 18, SUPRA.) 

THE SUFFICIENCY OF THE EVIDENCE AS TO OTHER ELEMENTS OF THE CRIME
REQUIRES NO EXPOSITION.  SCALES' "ACTIVE" MEMBERSHIP IN THE PARTY IS
INDISPUTABLE, AND THAT ISSUE WAS PROPERLY SUBMITTED TO THE JURY UNDER
INSTRUCTIONS THAT WERE ENTIRELY ADEQUATE.  (FN29)  THE ELEMENTS OF
PETITIONER'S "KNOWLEDGE" AND "SPECIFIC INTENT" (ANTE, P. 220) REQUIRE
NO FURTHER DISCUSSION OF THE EVIDENCE BEYOND THAT ALREADY GIVEN AS TO
SCALES' UTTERANCES AND ACTIVITIES.  COMPARE NOTO V. UNITED STATES,
POST, AT 299-300.  THEY BEAR LITTLE RESEMBLANCE TO THE FRAGMENTARY AND
EQUIVOCAL UTTERANCES AND CONDUCT WHICH WERE FOUND INSUFFICIENT IN NOWAK
V. UNITED STATES, 356 U.S. 660, 666-667, AND IN MAISENBERG V. UNITED
STATES, 356 U.S. 670, 673. 

WE HOLD THAT THIS PROSECUTION DOES NOT FAIL FOR INSUFFICIENCY OF THE
PROOF. 

                      IV.

ALLEGED TRIAL ERRORS. 

PETITIONER CONTENDS THAT A NUMBER OF ERRORS WERE COMMITTED, HAVING
THE EFFECT OF VITIATING THE FAIRNESS OF HIS TRIAL.  FOR REASONS
SUBSTANTIALLY SIMILAR TO THOSE GIVEN BY THE COURT OF APPEALS (260 F.2D
38-46), WE FIND THAT NONE OF PETITIONER'S CONTENTIONS RAISE POINTS
MERITING REVERSAL. 

                 1.  ADMISSION OF REMOTE OR PREJUDICIAL EVIDENCE. 

PETITIONER COMPLAINS AS TO THE ADMISSION OF CERTAIN EVIDENCE RELATING
TO THE PARTY'S GENERAL OR SPECIFIC PURPOSES.  IN PARTICULAR, HE OBJECTS
TO THE ADMISSION OF EVIDENCE ABOUT THE PARTY'S PROGRAM IN THE SO-CALLED
"BLACK BELT" AND ESPECIALLY TO THE ADMISSION OF A PAMPHLET CALLED "I
SAW THE TRUTH IN KOREA," WHICH CONTAINED A VERY GRUESOME DESCRIPTION OF
ALLEGED AMERICAN ATROCITIES IN KOREA.  THERE CAN BE NO DOUBT THAT THIS
MATTER, AND PARTICULARLY THE LATTER, WOULD NOT HAVE REFLECTED WELL ON
THE PETITIONER OR THE PARTY IN THE EYES OF THE JURY, BUT IF IT WAS
RELEVANT TO AN ELEMENT OF THE CRIME, THEN WHETHER ITS ASSERTED
PREJUDICIAL EFFECT SO FAR OUTWEIGHED ITS PROBATIVE VALUE AS TO REQUIRE
EXCLUSION OF THE EVIDENCE, WAS A DECISION WHICH RESTED IN THE SOUND
DISCRETION OF THE TRIAL JUDGE.  PARTICULARLY IN LIGHT OF THE FACT THAT
THE MOST DAMAGING OF THIS MATERIAL EMANATED FROM PETITIONER HIMSELF
(260 F.2D, AT 38), WE CANNOT SAY THAT ITS ADMISSION INVOLVED AN ABUSE
OF DISCRETION WHICH WOULD WARRANT OUR REVERSAL OF THE CONCLUSIONS OF
THE TRIAL JUDGE AND THE COURT OF APPEALS ON THIS SCORE. 

WE THEREFORE NEED ONLY CONSIDER WHETHER THE COMPLAINED-OF EVIDENCE
WAS LEGALLY RELEVANT AND THEREFORE ADMISSIBLE.  AS WE HAVE POINTED OUT
IN OUR REVIEW OF THE RECORD, THE JURY COULD HAVE INFERRED THAT PART OF
THE COMMUNIST PARTY'S PROGRAM FOR VIOLENT REVOLUTION WAS THE WINNING OF
FAVOR WITH THE NEGRO POPULATION IN THE SOUTH, WHICH IT THOUGHT WAS
PARTICULARLY SUSCEPTIBLE TO REVOLUTIONARY PROPAGANDA AND ACTION. 
SURELY, THEN, THE EVIDENCE OF THE PARTY'S TEACHING THAT THE NEGRO
POPULATION SHOULD BE GIVEN THE RIGHT TO FORM A SEPARATE NATION IS NOT
IRRELEVANT TO THE ISSUE OF WHETHER OR NOT THE PARTY'S PROGRAM AS A
WHOLE CONSTITUTED A CALL TO STAND IN READINESS FOR VIOLENT ACTION, WHEN
THIS PARTICULAR PLANK IN THE PLATFORM WAS INTENDED AS BAIT FOR ONE OF
THE SUBSTANTIAL BATTALIONS IN THE HOPED-FOR REVOLUTIONARY ARRAY.  OF
COURSE, THE PREACHING THAT THE NEGRO POPULATION IN THE SOUTH HAS THE
RIGHT TO FORM A SEPARATE NATION DOES NOT OF ITSELF CONSTITUTE ILLEGAL
ADVOCACY.  BUT NEITHER DOES THE TEACHING OF THE ABSTRACT THEORY OF
MARXISM-LENINISM, WHICH WE HAVE HELD CANNOT ALONE FORM THE BASIS FOR A
CONVICTION FOR VIOLATION OF THE SMITH ACT, YATES V. UNITED STATES,
SUPRA; YET IT CANNOT BE SERIOUSLY URGED THAT EVIDENCE OF SUCH TEACHING
IS LEGALLY IRRELEVANT TO THE CHARGE.  SIMILARLY THE EVIDENCE OF THE
PAMPHLET ON ALLEGED AMERICAN ATROCITIES IN KOREA CANNOT BE SAID TO BE
IRRELEVANT TO THE ISSUE OF ILLEGAL ADVOCACY BY THE PARTY.  ONCE AGAIN,
THE PAMPHLET MAY NOT IN ITSELF CONSTITUTE SUCH AN INCITEMENT TO
VIOLENCE AS WOULD JUSTIFY A FINDING THAT THE PARTY ADVOCATED VIOLENT
OVERTHROW, BUT IT IS POSSIBLE TO INFER FROM IT THAT IT WAS THE PURPOSE
OF THE PARTY TO UNDERMINE THE GOVERNMENT IN THE EYES OF THE PEOPLE IN
TIME OF WAR AS A PREPARATORY MEASURE, ALBEIT LEGAL IN ITSELF, TO THE
TEACHING AND SYMPATHETIC RECEPTION OF ILLEGAL ADVOCACY TO VIOLENT
REVOLUTION. 

PETITIONER ALSO ARGUES THAT THIS AND OTHER EVIDENCE WAS NOT CONNECTED
UP WITH HIM OR HIS ACTIVITIES.  WHETHER IT WAS OR NOT, SINCE IT IS
NECESSARY UNDER THE MEMBERSHIP CLAUSE TO PROVE THE ADVOCACY OF THE
PARTY AS AN INDEPENDENT ELEMENT OF THE OFFENSE, THIS RENDERS ADMISSIBLE
EVIDENCE NOT CONNECTED UP WITH THE DEFENDANT IN THE ACCEPTED CONSPIRACY
SENSE.  (SEE NOTE 23, SUPRA.)  DOUBTLESS BECAUSE OF THIS THERE IS A
SPECIAL NEED TO MAKE SURE THAT THE EVIDENCE ESTABLISHING A DEFENDANT'S
PERSONAL KNOWLEDGE OF ILLEGAL PARTY ADVOCACY AND HIS INTENT IN BECOMING
OR REMAINING A PARTY MEMBER TO ACCOMPLISH VIOLENT OVERTHROW IS COGENT
AND ADEQUATELY BROUGHT HOME TO HIM.  BUT, HAVING SAID THAT, WE HAVE
SAID ALL, IN RESPECT TO PETITIONER'S CLAIM ON THIS POINT. 

  2.  THE "JENCKS" CLAIM. 

WHEN THIS CASE WAS FIRST BEFORE US WE REVERSED THE CONVICTION, 355
U.S. 1, ON THE AUTHORITY OF OUR DECISION IN JENCKS V. UNITED STATES,
353 U.S. 657.  BEFORE THE SECOND TRIAL CONGRESS ENACTED THE SO-CALLED
JENCKS STATUTE, 18 U.S.C. SEC. 3500.  PETITIONER, AS WE UNDERSTAND HIM,
DOES NOT NOW ARGUE THAT THAT STATUTE WAS INCORRECTLY APPLIED IN HIS
CASE; RATHER HE ATTACKS, ON CONSTITUTIONAL GROUNDS, THE STATUTE
ITSELF.  THAT THE PROCEDURE SET FORTH IN THE STATUTE DOES NOT VIOLATE
THE CONSTITUTION AND THAT THE PROCEDURE REQUIRED BY THE DECISION OF
THIS COURT IN JENCKS WAS NOT REQUIRED BY THE CONSTITUTION WAS ASSUMED
BY US IN PALERMO V. UNITED STATES, 360 U.S. 343.  IT IS ENOUGH TO SAY
HERE THAT THERE CAN BE NO COMPLAINT BY A CRIMINAL DEFENDANT THAT HE HAS
BEEN DENIED THE OPPORTUNITY TO EXAMINE STATEMENTS BY GOVERNMENT
WITNESSES WHICH DO NOT RELATE TO THE SUBJECT MATTER OF THEIR TESTIMONY,
FOR SUCH STATEMENTS BEAR NO GREATER RELEVANCE TO THAT TESTIMONY WHICH
HE SEEKS TO IMPEACH THAN WOULD STATEMENTS BY PERSONS UNCONNECTED WITH
THE PROSECUTION.  WHETHER THE STATEMENTS SO RELATE TO PROSECUTION
TESTIMONY IS A DECISION WHICH IS VESTED NOT IN THE GOVERNMENT BUT IN
THE TRIAL JUDGE WITH FULL OPPORTUNITY FOR APPELLATE REVIEW.  ONCE THIS
QUESTION HAS BEEN DETERMINED, WHETHER THE STATEMENTS MAY BE USEFUL FOR
PURPOSES OF IMPEACHMENT IS A DECISION WHICH RESTS, OF COURSE, WITH THE
DEFENDANT HIMSELF. 

PETITIONER ALSO OBJECTS TO THE LIMITATION OF THE ACT TO WRITTEN
STATEMENTS SIGNED OR ADOPTED BY THE WITNESS OR TO ANY FORM OF
SUBSTANTIALLY VERBATIM TRANSCRIPTION OF AN ORAL STATEMENT BY THE
WITNESS.  HOWEVER, PETITIONER DOES NOT ASSERT THAT HE HAS BEEN
PREJUDICED BY THIS PROVISION, OR THAT ANY STATEMENT OR DOCUMENT
REQUESTED BY HIM WAS WITHHELD ON THE AUTHORITY OF THE STATUTE.  IN
THESE CIRCUMSTANCES WE PERCEIVE NO BASIS FOR THIS ASPECT OF
PETITIONER'S CLAIMS.                   3.  CONGRESSIONAL FINDINGS IN
THE COMMUNIST CONTROL ACT

                 OF 1954 AND THE INTERNAL SECURITY ACT OF 1950. 

PETITIONER ASSERTS THAT THE CONGRESSIONAL FINDINGS AS TO THE
CHARACTER OF THE COMMUNIST PARTY CONTAINED IN BOTH STATUTES DEPRIVED
HIM OF A FAIR TRIAL ON THE ISSUE OF THE CHARACTER OF THE PARTY.  THAT
LEGISLATIVE ACTION MAY HAVE THE EFFECT OF PRECLUDING A FAIR TRIAL IS
NOT IMPOSSIBLE, SEE DELANEY V. UNITED STATES, 199 F.2D 107, BUT
PETITIONER'S CLAIM HERE APPEARS TO BE NO MORE THAN AN AFTERTHOUGHT. 
THERE IS NO SHOWING OF ANY PREJUDICE, NOR THAT DURING THE VOIR DIRE
EXAMINATION OF JURORS PETITIONER ATTEMPTED TO ASCERTAIN WHETHER ANY
JUROR HAD EVEN HEARD OF THESE ENACTMENTS, MUCH LESS THAT PETITIONER
ATTEMPTED TO HAVE ANY JUROR DISQUALIFIED ON THAT GROUND.  WE CANNOT ON
THIS RECORD REGARD THIS AS A SUBSTANTIAL CONTENTION. 

FINALLY, FOR THE REASONS STATED BY THE COURT OF APPEALS, 260 F.2D, AT
44-46, WE THINK THAT PETITIONER WAIVED ANY RIGHT HE MIGHT HAVE HAD TO
QUESTION THE METHOD OF CHOOSING GRAND JURORS BY HIS FAILURE TO COMPLY
WITH RULE 12, FED. RULES CRIM. PROC., AND FURTHER THAT NO IMPROPRIETY
IN THE METHOD OF CHOOSING GRAND JURORS HAS BEEN SHOWN. 

THE JUDGMENT OF THE COURT OF APPEALS MUST BE AFFIRMED. 

FN1  SECTION 2385 (WHOSE MEMBERSHIP CLAUSE WE PLACE IN ITALICS)
READS: 

"WHOEVER KNOWINGLY OR WILLFULLY ADVOCATES, ABETS, ADVISES, OR TEACHES
THE DUTY, NECESSITY, DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR
DESTROYING THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF ANY
STATE, TERRITORY, DISTRICT OR POSSESSION THEREOF, OR THE GOVERNMENT OF
ANY POLITICAL SUBDIVISION THEREIN, BY FORCE OR VIOLENCE, OR BY THE
ASSASSINATION OF ANY OFFICER OF ANY SUCH GOVERNMENT; OR: 

"WHOEVER, WITH INTENT TO CAUSE THE OVERTHROW OR DESTRUCTION OF ANY
SUCH GOVERNMENT, PRINTS, PUBLISHES, EDITS, ISSUES, CIRCULATES, SELLS,
DISTRIBUTES, OR PUBLICLY DISPLAYS ANY WRITTEN OR PRINTED MATTER
ADVOCATING, ADVISING, OR TEACHING THE DUTY, NECESSITY, DESIRABILITY, OR
PROPRIETY OF OVERTHROWING OR DESTROYING ANY GOVERNMENT IN THE UNITED
STATES BY FORCE OR VIOLENCE, OR ATTEMPTS TO DO SO; OR: 

"WHOEVER ORGANIZES OR HELPS OR ATTEMPTS TO ORGANIZE ANY SOCIETY,
GROUP, OR ASSEMBLY OF PERSONS WHO TEACH, ADVOCATE, OR ENCOURAGE THE
OVERTHROW OR DESTRUCTION OF ANY SUCH GOVERNMENT BY FORCE OR VIOLENCE;
OR BECOMES OR IS A MEMBER OF, OR AFFILIATES WITH, ANY SUCH SOCIETY,
GROUP, OR ASSEMBLY OF PERSONS, KNOWING THE PURPOSES THEREOF: 

"SHALL BE FINED NOT MORE THAN $20,000 OR IMPRISONED NOT MORE THAN
TWENTY YEARS, OR BOTH, AND SHALL BE INELIGIBLE FOR EMPLOYMENT BY THE
UNITED STATES OR ANY DEPARTMENT OR AGENCY THEREOF, FOR THE FIVE YEARS
NEXT FOLLOWING HIS CONVICTION. 

"IF TWO OR MORE PERSONS CONSPIRE TO COMMIT ANY OFFENSE NAMED IN THIS
MORE THAN TWENTY YEARS, OR BOTH, AND SHALL BE INELIGIBLE FOR EMPLOYMENT
BY THE UNITED STATES OR ANY DEPARTMENT OR AGENCY THEREOF, FOR THE FIVE
YEARS NEXT FOLLOWING HIS CONVICTION." 

FN2  PETITIONER WAS FIRST CONVICTED BEFORE A JURY IN THE MIDDLE
DISTRICT OF NORTH CAROLINA IN 1955.  THE CONVICTION WAS UPHELD BY THE
COURT OF APPEALS, 227 F.2D 581, AND WE GRANTED CERTIORARI AT THE 1955
TERM.  350 U.S. 992.  THE CASE WAS FIRST HEARD HERE AT THE 1956 TERM,
AND WAS LATER SET FOR REARGUMENT AT THE 1957 TERM.  BEFORE REARGUMENT
THE JUDGMENT OF CONVICTION WAS REVERSED, UPON THE SOLICITOR GENERAL'S
CONCESSION THAT THIS COURT'S INTERVENING DECISION IN JENCKS V. UNITED
STATES, 353 U.S. 657, IN ANY EVENT ENTITLED SCALES TO A NEW TRIAL. 
SCALES WAS RETRIED AND AGAIN CONVICTED IN 1958.  THE COURT OF APPEALS
AGAIN AFFIRMED, 260 F.2D 21, AND WE AGAIN BROUGHT THE CASE HERE.  358
U.S. 917.  ARGUMENT ON THE PRESENT WRIT WAS FIRST HEARD AT THE 1958
TERM, THE CASE BEING SET FOR REARGUMENT AT THE FOLLOWING TERM UNDER AN
ORDER IN WHICH THE COURT PROPOUNDED CERTAIN QUESTIONS TO WHICH COUNSEL
WERE REQUESTED PARTICULARLY TO ADDRESS THEMSELVES.  360 U.S. 924. 
BEFORE REARGUMENT WAS HAD, CERTIORARI WAS GRANTED (361 U.S. 951) IN
COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD (NO. 12, DECIDED
TODAY, ANTE, P. 1), CERTAIN OF THE STATUTORY AND CONSTITUTIONAL ISSUES
IN WHICH WERE CLOSELY RELATED TO SOME OF THOSE IN THE SCALES CASE. 
BECAUSE OF THIS INTERRELATION OF THE TWO CASES, THE COURT DEEMED IT
ADVISABLE THAT THEY SHOULD BE HEARD AND CONSIDERED TOGETHER, AND
ACCORDINGLY PUT OVER THIS CASE FOR ARGUMENT WITH THE COMMUNIST PARTY
CASE AT THE PRESENT TERM.  361 U.S. 952. 

FN3  E.G., 18 U.S.C. SEC. 2385 (THE REMAINING PROVISIONS OF THE SMITH
ACT); 28 U.S.C.  SEC. 159(H), REPEALED BY THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 519, SEC. 201(D) (NON
COMMUNIST AFFIDAVITS TO BE FILED BY UNION OFFICERS); OR ANY OF THE
OFFENSES CREATED BY THE INTERNAL SECURITY ACT OF 1950, FOR INSTANCE
UNDER SECS. 4, 5 OR 6. 

FN4  THE REPORT ALSO STATED:  "NOWHERE DOES THE BILL RESTRICT OR
IMPAIR THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION UNDER
THE FIFTH AMENDMENT  ...  .  AS TO WHETHER ANY REGISTRATION ITSELF
INFRINGES UPON THE PRIVILEGE OF SELF-INCRIMINATION,  ...  WITH RESPECT
TO INDIVIDUAL MEMBERS, A PERSON MAY BE COMPELLED TO REGISTER, KEEP
RECORDS, MAKE REPORTS OR STATEMENTS, ETC., CONCERNING ANY ACTIVITY
WHICH THE STATE PROPERLY MAY REGULATE, AND HE IS NOT PROTECTED
THEREFROM BY THE PRIVILEGE  ...  .  THIS BECOMES PURELY ACADEMIC,
HOWEVER, IN THE LIGHT OF THE SPECIFIC BAR TO SELF-INCRIMINATION WRITTEN
INTO SECTION 4(F)."  ID., AT PP. 20-21. 

FN5  SENATOR LEHMAN, ARGUING THAT THE BILL REQUIRED SELF
INCRIMINATION, STATED: 

"WE ALREADY HAVE ON THE STATUTE BOOKS MORE THAN 20 LAWS TO CONTROL
AND PENALIZE SUBVERSIVE ACTIVITIES  ...  .  WE ALSO HAVE THE SMITH ACT,
RECENTLY UPHELD BY THE COURT OF APPEALS, WHICH MAKES MEMBERSHIP IN THE
COMMUNIST PARTY PRIMA FACIE EVIDENCE OF CRIMINAL INTENT ...  . 

"  ...  REGISTRATION WOULD CONSTITUTE SELF-INCRIMINATION, IF NOT
UNDER THE TERMS OF THIS LAW, THEN UNDER THE TERMS OF THE SMITH ACT." 
96 CONG. REC. 14190. 

AS THE DEBATE CONTINUED, SENATOR LONG SAID: 

"I WAS UNDER THE IMPRESSION FROM HEARING THE SENATOR FROM NEW YORK
YESTERDAY, THAT HE SAID THAT UNDER A PREVIOUS STATUTE IT WAS UNLAWFUL
TO BELONG TO AN ORGANIZATION THAT ADVOCATED THE OVERTHROW OF THE UNITED
STATES GOVERNMENT BY FORCE  ...  THAT THERE WAS A PREVIOUS ACT  ...
WHICH MADE IT UNLAWFUL FOR ONE TO BE A MEMBER OF SUCH AN ORGANIZATION
...  . 

     *         *         *         *         * 

"SENATOR FERGUSON.  IS IT NOT TRUE THAT JUDGE MEDINA, IN HIS CHARGE
TO THE JURY IN THE TRIAL OF THE 11 COMMUNISTS, TOLD THEM THAT MERE
MEMBERSHIP IN THE COMMUNIST PARTY WAS NOT SUFFICIENT TO WARRANT THE
JURY IN CONVICTING THEM UNDER THE SMITH ACT?  (THE PETITIONER IN THE
PRESENT CASE CORRECTLY NOTES THAT THIS REFERENCE WAS TO THE DENNIS CASE
INVOLVING AN INDICTMENT FOR CONSPIRACY TO ADVOCATE, NOT THE MEMBERSHIP
CLAUSE OF THE SMITH ACT.) 

"MR. MUNDT (WHO WAS ONE OF THE PROPONENTS OF THE ORIGINAL BILL). 
PRECISELY. 

"MR. FERGUSON.  SO THAT IT COULD NOT APPLY TO THAT LAW. 

"MR. MUNDT.  IT COULD NOT CONCEIVABLY APPLY  ...  .  IT WOULD STILL
BE AN INCORRECT INTERPRETATION OF THE SMITH ACT  ...  ."  96 CONG. REC.
14235. 

SENATOR MCCARRAN, WHOSE NAME THE NEW OMNIBUS SENATE MEASURE BORE,
STATED IN CONNECTION WITH THE SMITH ACT: 

"IT WAS ARRESTING TO HEAR THE SENATOR FROM NEW YORK DECLARE ON
TUESDAY THAT - 'THE SMITH ACT  ... MAKES MEMBERSHIP IN THE COMMUNIST
PARTY PRIMA FACIE EVIDENCE OF CRIMINAL INTENT.' 

"  ...  OF COURSE, THE STATEMENT ABOUT THE SMITH ACT MAKING
MEMBERSHIP IN THE COMMUNIST PARTY PRIMA FACIE EVIDENCE OF CRIMINAL
INTENT SIMPLY HAS NO FOUNDATION IN FACT. 

"  ...  OF COURSE, IN ORDER TO MAKE A STATEMENT LIKE THE ONE HE MADE
A MAN MUST NOT HAVE READ JUDGE MEDINA'S SCHOLARLY CHARGE TO THE JURY,
IN WHICH HE SPECIFICALLY POINTED OUT THAT THE COMMUNIST MEMBERSHIP OR
AFFILIATION OF THE 11 DEFENDANTS WAS NOT  ...  A PART OF THE CHARGED
OFFENSE  ...  . 

     *         *         *         *         * 

"MR. PRESIDENT, SUBSECTION 4(F) PROVIDES AS FOLLOWS:  'NEITHER THE
HOLDING OF OFFICE NOR MEMBERSHIP  ...  SHALL CONSTITUTE A VIOLATION OF
SUBSECTION (A)  ...  .' 

"  ...  I HOPE THE SENATOR FROM NEW YORK MAY FIND TIME TO READ THE
WHETHER HE STILL THINKS COMMUNISTS, AS SUCH, WOULD OBVIOUSLY BE
INDICTABLE AND SUBJECT TO IMPRISONMENT UNDER SECTION 4(A)."  96 CONG.
REC. 14442-14443. 

FN6  PERHAPS THE CLOSEST WE COME TO ANY SUGGESTION THAT SEC. 4(F)
REPEALS, PRO TANTO, THE SMITH ACT IS THE STATEMENT BY REPRESENTATIVE
MULTER OF NEW YORK, AN OPPONENT OF THE MEASURE, DURING THE DEBATE ON
THE FINAL VERSION OF THE BILL:  "ANOTHER VERY BAD PROVISION IN THIS
BILL IS THE NEW - TO THIS HOUSE - FIRST SENTENCE OF SEC. 4(F)  ...  . 

"I VENTURE TO PREDICT THAT IF THIS BILL BECOMES LAW YOU NOT ONLY
VITIATE ONE OF THE MOST IMPORTANT PARTS OF THE SMITH LAW, BUT YOU WILL
GIVE A NEW ARGUMENT AND DEFENSE TO THE 11 COMMUNISTS RECENTLY CONVICTED
IN THE FEDERAL COURT IN NEW YORK OF CRIMES AGAINST THE UNITED STATES,
AS PROSCRIBED IN THE SMITH LAW," 96 CONG. REC. 15289, OR A SIMILAR
ARGUMENT AGAINST THE BILL BY SENATOR KILGORE, 96 CONG. REC. 15192. 

FN7  PETITIONER MAKES REFERENCE TO THE LEGISLATIVE HISTORY OF AN
AMENDMENT TO THE COMMUNIST CONTROL ACT OF 1954, S. 3706, 83D CONG., 2D
SESS., INTRODUCED AND PASSED WITH MODIFICATIONS IN A HURRIED AND
CONFUSED DEBATE IN BOTH HOUSES.  THE AMENDMENT, PROPOSED BY SENATOR
HUMPHREY, PROVIDED THAT IT WOULD BE CRIMINAL KNOWINGLY AND WILFULLY TO
BECOME OR REMAIN A MEMBER OF THE COMMUNIST PARTY, OR ANY OTHER
ORGANIZATION WHOSE PURPOSE IS TO OVERTHROW THE GOVERNMENT BY FORCE AND
VIOLENCE.   THE AMENDMENT WAS OPPOSED BY THE PROPONENTS OF THE INTERNAL
SECURITY ACT OF 1950, AMONG OTHERS, ON THE GROUNDS THAT IT WOULD IMPAIR
THE EFFECTIVENESS OF SEC. 4(F) OF THE 1950 ACT, POSSIBLY RENDERING THE
REGISTRATION PROVISIONS OF THAT ACT UNCONSTITUTIONAL.  BUT IT SEEMS
CLEAR THAT THIS RESULT WAS CONCEIVED TO FLOW FROM THE FACT THAT THE
AMENDMENT MENTIONED THE COMMUNIST PARTY BY NAME, THUS MAKING
REGISTRATION TANTAMOUNT TO AN ADMISSION OF THE CRIME ITSELF.  AS
REPRESENTATIVE HALLECK, THE THEN MAJORITY LEADER WHO OPPOSED THE
AMENDMENT, PUT IT: 

"  ...  WE HAVE THE INTERNAL SECURITY ACT OF 1950, WHICH WAS WORKED
OUT AFTER THE MOST CAREFUL CONSIDERATION  ...  AND THE SMITH ACT, UNDER
WHICH WE HAVE HAD MORE THAN 100 INDICTMENTS AND SIXTY-SOME CONVICTIONS,
ALL OF COMMUNIST LEADERS  ...  .  THOSE ACTS WE HAVE ON THE BOOKS  ...
THEY HAVE ESTABLISHED THEMSELVES. 

"  ...  THE ATTORNEY-GENERAL  ...  SPEAKING OF THE INTERNAL SECURITY
ACT  ...  SAID: 'ESSENTIAL TO THE VALIDITY OF THIS CAREFUL PLAN,
HOWEVER, IS THE PROVISION OF SECTION 4(F) OF THE ACT  ...  .  IT IS
APPARENT THAT THE ENACTMENT OF LEGISLATION MAKING MEMBERSHIP IN THE
COMMUNIST PARTY PER SE A CRIME WOULD BE IN DIRECT CONFLICT WITH THESE
PROVISIONS OF THE INTERNAL SECURITY ACT.  IF MEMBERSHIP ALONE IS MADE
CRIMINAL, TO REQUIRE HIM TO DECLARE HIS MEMBERSHIP IS TO REQUIRE HIM TO
GIVE SELF-INCRIMINATING EVIDENCE.  BY NULLIFYING THIS PORTION OF THE
ACT, ITS ENTIRE OPERATIONS WOULD BE JEOPARDIZED  ...  .' 

"IN OTHER WORDS, WHAT WE ARE DOING PERMITS OUTLAWING THE COMMUNIST
PARTY, AND MAINTAINING THE INTERNAL SECURITY ACT, THE SMITH ACT, AND
ALL OTHER ACTS BY WHICH WE DEAL REALISTICALLY WITH THE COMMUNIST
CONSPIRACY."  100 CONG. REC. 14658. 

THERE IS NO DOUBT THAT THE HUMPHREY AMENDMENT IS IN MANY RESPECTS
SIMILAR TO THE MEMBERSHIP CLAUSE.  BUT IT WAS ASSUMED BY MANY OF THE
PROPONENTS OF THE 1950 ACT, PERHAPS ILLOGICALLY AND UNDER A
MISAPPREHENSION AS TO THE LAW, THAT THE AMENDMENT SHOULD BE DEFEATED TO
PRESERVE THE INTEGRITY OF THE 1950 ACT AND THE SMITH ACT.  CERTAINLY IT
WAS CONSIDERED BY NO ONE THAT THE MEMBERSHIP CLAUSE HAD BEEN REPEALED,
OR ITS APPLICATION TO COMMUNISTS BARRED BY SEC. 4(F) OF THE 1950 ACT. 

FN8 NOVEMBER 18, 1951, TO NOVEMBER 18, 1954.  SEE 18 U.S.C. SEC.
3282. 

FN9  "NO PERSON SHALL  ...  BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY,
WITHOUT DUE PROCESS OF LAW ...  ." 

FN10  "CONGRESS SHALL MAKE NO LAW  ...  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." 

FN11  WHILE THE GOVERNMENT UNDERTAKES TO DEFEND THE STATUTE IN THE
ABSENCE OF EITHER OR BOTH OF SUCH ELEMENTS, ITS ULTIMATE CONSTITUTIONAL
POSITION RESTS ON THE PRESENCE OF BOTH. 

FN12  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE
RIGHT  ...  TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION
...  ." 

FN13  SEE NOTE 27, INFRA. 

FN14  THE STATUTE ALLOWS A FINE OF NOT MORE THAN $10,000 AND
IMPRISONMENT FOR NOT MORE THAN TEN YEARS TO BE IMPOSED, AND MAKES ONE
CONVICTED UNDER THE STATUTE INELIGIBLE FOR EMPLOYMENT BY THE UNITED
STATES OR ANY DEPARTMENT OR AGENCY THEREOF FOR FIVE YEARS FOLLOWING
CONVICTION.  PETITIONER WAS SENTENCED TO IMPRISONMENT FOR SIX YEARS. 

FN15  THE ELEMENT OF "ACTIVITY" IN THE PROSCRIBED MEMBERSHIP STANDS
APART FROM THE INGREDIENT OF GUILTY "KNOWLEDGE" IN THAT THE FORMER MAY
BE SHOWN BY A DEFENDANT'S PARTICIPATION IN GENERAL PARTY AFFAIRS,
WHEREAS THE LATTER REQUIRES LINKING HIM WITH THE ORGANIZATION'S ILLEGAL
ACTIVITIES. 

FN16  BUT COMPARE WHITNEY V. CALIFORNIA, 274 U.S. 357; BURNS V.
UNITED STATES, 274 U.S. 328, SUSTAINING STATE CONVICTIONS UNDER THE
ORGANIZING AND MEMBERSHIP PROVISIONS OF THE CALIFORNIA CRIMINAL
SYNDICALISM ACT.    FN17  COMPLICITY HAS BEEN DEFINED THUS:  "A PERSON
IS AN ACCOMPLICE OF ANOTHER PERSON IN COMMISSION OF A CRIME IF: 

"(A)  WITH THE PURPOSE OF PROMOTING OR FACILITATING THE COMMISSION OF
THE CRIME, HE: 

"(1)  COMMANDED, REQUESTED, ENCOURAGED OR PROVOKED SUCH OTHER PERSON
TO COMMIT IT; OR: 

"(2)  AIDED, AGREED TO AID OR ATTEMPTED TO AID SUCH OTHER PERSON IN
PLANNING OR COMMITTING IT  ...  .

     *         *         *   *         *    "(B)  ACTING WITH
KNOWLEDGE THAT SUCH OTHER PERSON WAS COMMITTING OR HAD THE PURPOSE OF
COMMITTING THE CRIME, HE KNOWINGLY, SUBSTANTIALLY FACILITATED ITS
COMMISSION  ...  ."  AMERICAN LAW INSTITUTE, MODEL PENAL CODE SEC.
2.04(3), TENTATIVE DRAFT NO. 1 (1953).  THE FORMULATION RESTATES THE
STATUTORY PROVISIONS GENERALLY FOUND IN JURISDICTIONS IN THE UNITED
STATES.  SEE, E.G., 18 U.S.C. SEC. 2(A); ARIZ. CODE ANN., 1939, SEC. 43
116; VERNON'S TEXAS STAT., 1952, PEN.  CODE, ART. 70; CF. CRIMINAL CODE
OF CANADA, TREMEEAR'S, 1944, SEC. 69.  IT SHOULD BE NOTED THAT THE
MEMBERSHIP CLAUSE AS HERE CONSTRUED IS MORE LIMITED THAN SUBSECTION (B)
OF THIS PROVISION, SINCE IT IS NOT ENOUGH THAT ONE HAS KNOWINGLY
FACILITATED THE SUBSTANTIVE CRIMINAL CONDUCT, BUT THERE MUST ALSO BE
PRESENT THE SPECIFIC PURPOSE OF FACILITATING IT. 

THERE IS, OF COURSE, CONSIDERABLE OVERLAP BETWEEN THE LAW OF
COMPLICITY AND THE LAW OF CONSPIRACY, AND GENUINE PROBLEMS ARISE AS TO
WHETHER A CONSPIRATOR IS, BY REASON OF HIS CONSPIRACY, TO BE CONSIDERED
AN ACCOMPLICE AND THEREFORE GUILTY ALSO OF THE SUBSTANTIVE OFFENSE. 
SEE ALI, MODEL PENAL CODE, TENTATIVE DRAFT NO. 1 (1953), AT PP. 20-33;
DEVELOPMENTS IN THE LAW - CRIMINAL CONSPIRACY, 72 HARV. L. REV. 922,
993-1000 (1959).  BUT WE ARE SOLELY CONCERNED HERE WITH POINTING UP THE
ACCEPTED LIMITS OF IMPUTATION OF GUILT, NOT WITH EXPLORING THE PROBLEMS
CREATED BY THE VARIOUS PROVISIONS BY WHICH SUCH IMPUTATION IS
EFFECTED. 

FN18  THE PROBLEMS IN ATTRIBUTING CRIMINAL BEHAVIOR TO AN ABSTRACT
ENTITY RATHER THAN TO SPECIFIED INDIVIDUALS, THOUGH PERHAPS DIFFICULT
THEORETICALLY, AS A PRACTICAL MATTER RESOLVE THEMSELVES INTO PROBLEMS
OF PROOF.  WHETHER IT HAS BEEN SUCCESSFULLY SHOWN THAT A PARTICULAR
GROUP ENGAGES IN FORBIDDEN ADVOCACY MUST DEPEND ON THE NATURE OF THE
ORGANIZATION, THE OCCASIONS ON WHICH SUCH ADVOCACY TOOK PLACE, THE
FREQUENCY OF SUCH OCCASIONS, AND THE POSITION WITHIN THE GROUP OF THE
PERSONS ENGAGING IN THE ADVOCACY.  (SEE PP. 253-254, INFRA.) 
UNDERSTOOD IN THIS WAY, THERE IS NO GREAT DIFFERENCE BETWEEN A CHARGE
OF BEING A MEMBER IN A GROUP WHICH ENGAGES IN CRIMINAL CONDUCT AND
BEING A MEMBER OF A LARGE CONSPIRACY, MANY OF WHOSE PARTICIPANTS ARE
UNKNOWN OR NOT BEFORE THE COURT.  WHATEVER DIFFICULTIES MIGHT BE
THOUGHT TO INHERE IN ASCRIBING A COURSE OF CRIMINAL CONDUCT TO AN
ABSTRACT ENTITY ARE CERTAINLY CURED, SO FAR AS ANY PARTICULAR DEFENDANT
IS CONCERNED, BY THE REQUIREMENT OF PROOF THAT HE KNEW THAT THE
ORGANIZATION ENGAGES IN CRIMINAL ADVOCACY, AND THAT IT WAS HIS PURPOSE
TO FURTHER THAT CRIMINAL ADVOCACY. 

FN19  SEE GENERALLY HART, THE AIMS OF THE CRIMINAL LAW, 23 LAW &
CONTEMP.  PROB.  401 (1958). 

FN20  COMPARE CONCURRING OPINION OF MR. JUSTICE BRANDEIS IN WHITNEY
V. CALIFORNIA, 274 U.S. 357, 372, 373. 

FN21  AS BOTH SIDES APPEAR TO AGREE THAT THE "CLEAR AND PRESENT
DANGER" DOCTRINE, AS VIEWED AND APPLIED IN DENNIS, SUPRA, AT 508-511,
ALSO REACHES THE MEMBERSHIP CLAUSE OF THE SMITH ACT, AND SINCE THE
PETITION FOR CERTIORARI TENDERS NO ISSUE AS TO THE METHOD OF APPLYING
IT HERE, WE DO NOT CONSIDER EITHER QUESTION. 

FN22  THAT STATUTE GIVES THE COURT POWER UPON REVIEW TO "DIRECT THE
ENTRY OF SUCH APPROPRIATE JUDGMENT  ...  AS MAY BE JUST UNDER THE
CIRCUMSTANCES." 

FN23  PETITIONER COMPLAINS THAT THE EVIDENCE AS TO PARTY ACTIVITIES
EMANATING FROM SUCH WITNESSES AS LAUTNER, HARTLE, DURAN, AND JONES, WAS
INADMISSIBLE BECAUSE NOT TIED UP WITH HIM.  THIS CONFUSES THE NATURE OF
THE OFFENSE CONGRESS HAS CREATED, FOR IT IS IMPORTANT AS A PRELIMINARY
MATTER, WITHOUT ADVERTING TO THE PARTICULAR DEFENDANT IN THE
PROSECUTION, TO PROVE THE CHARACTER OF THE ORGANIZATION OF WHICH HE IS
CHARGED WITH BEING A MEMBER.  THE OTHER SIDE OF PETITIONER'S CLAIM ON
THIS SCORE WOULD ENTAIL GIVING GREATER OR CONCLUSIVE WEIGHT TO
PETITIONER'S ADMISSIONS AS TO THE NATURE OF THE PARTY MERELY BECAUSE HE
IS THE DEFENDANT IN THIS CASE.  BUT THAT WOULD BE AS ILLOGICAL ON THE
PRELIMINARY QUESTION AS WOULD BE EXCLUDING EVIDENCE NOT CONNECTED UP
WITH PETITIONER.  THE EVIDENCE AS TO SCALES' WORDS AND DEEDS IS WEIGHTY
AND STRONG AGAINST THE PARTY ONLY BECAUSE OF HIS POSITION IN THE PARTY,
NOT BECAUSE HE IS THE DEFENDANT HERE. 

FN24  AS STATED BY CLONTZ:  "SCALES SAID THAT WE COULD NOT EXPECT THE
SOVIET UNION TO LAND TROOPS TO START OUR REVOLUTION AND FINISH IT. 

"SCALES FURTHER SAID THAT EXPERIENCE HAD TAUGHT THE COMMUNISTS THAT
THAT SORT OF APPROACH WAS DISASTROUS,  ...  THAT THEY IN CHINA, THE
COMMUNISTS, HAD SENT IN RUSSIAN GENERALS AND THE ONLY RESULT HAD BEEN
THAT THE CHINESE COMMUNISTS HAD BEEN LICKED COMPLETELY, THAT THE NEW
APPROACH, OF THE SOVIET UNION, WAS SHOWN IN THE EXAMPLE OF MAO, WHO WAS
THEN MAO-TSE-TUNG, WHO WAS THEN THE LEADER IN THE COMMUNIST CHINESE
GOVERNMENT. 

"HE POINTED OUT THAT MAO HAD NEVER EVEN BEEN TO RUSSIA, BUT INSTEAD
THE SOVIET UNION AND THE SOVIET COMMUNIST PARTY HAD SENT OVER MILITARY
LEADERS TO INSTRUCT MAO, AND HIS LEADERS, AND HAD SENT OVER
PROFESSIONAL REVOLUTIONARIES THAT COULD AID THEM IN BRINGING ABOUT
THEIR REVOLUTION. 

"HE SAID THAT WE COULD COUNT ON DRAWING ON THE EXPERIENCE OF THE
SOVIET UNION, AND THAT THEY ALSO WOULD FURNISH US WHEN THE REVOLUTION
CAME WITH EXPERIENCED REVOLUTIONARIES FROM RUSSIA." 

FN25  AT ONE POINT IN THE COURSE OF INSTRUCTING CLONTZ, WILKERSON
WROTE OUT THE FORMULA "M-L F&V" WHICH HE TOLD CLONTZ ILLUSTRATED THE
POSITION ADOPTED BY THE APPELLATE COURTS IN THE UNITED STATES THAT
MARXIST-LENINIST TEACHING EQUALLED FORCE AND VIOLENCE.  CLONTZ
TESTIFIED: 

"DOXEY WILKERSON EXPLAINED TO ME THAT SINCE THAT FORMULA HAD BEEN
ESTABLISHED, ACTION HAD HAD TO BE TAKEN BY THE NATIONAL PARTY TO
CONCEAL THE FACT THAT THEIR PRINCIPLES AND THEIR GOAL AND THEIR AIMS
AND THEIR DOCTRINES INCLUDED FORCEFUL AND VIOLENT REVOLUTION.  HE
POINTED OUT, FOR EXAMPLE, THAT AN OFFICIAL STATEMENT HAD BEEN ISSUED BY
THE EDUCATION COMMISSION OF THE COMMUNIST PARTY U.S.A. DISOWNING OR
DISCLAIMING CERTAIN STUDY OUTLINES, CERTAIN TEXTS, CERTAIN PUBLICATIONS
PUT OUT BY THE COMMUNIST PARTY. 

"IN FACT, THE ORDER HAD ORDERED ALL COMMUNIST PARTY MEMBERS TO TURN
THOSE IN, AND THE STATEMENT, HE SAID, AFTER THAT PARTICULAR DATE - I
DON'T RECALL THE EXACT DATE - HAD SAID HENCEFORTH, WE WILL NOT
RECOGNIZE THESE AS OFFICIAL PARTY PUBLICATIONS. 

"HE SAID BY DOING THAT THEY ACCOMPLISHED TWO THINGS.  THEY, FIRST OF
ALL, ESTABLISHED A TECHNICALITY FOR COMMUNISTS ON TRIAL AND THEIR
ATTORNEYS, THAT THE PARTY NO LONGER ACCEPTED MARXISM-LENINISM, BECAUSE,
HE SAID, ALL MARXISM-LENINISM INCLUDED IN ITS TEACHINGS AND IN ITS
CONCEPT THE BASIS OF A VIOLENT REVOLUTION. 

"HE SAID, SECONDLY, THAT IT DID NOT UNDULY HAMPER THE COMMUNIST
PARTY, THAT IN THE FUTURE MANY THINGS WOULD BE LEFT UNSAID THAT
PREVIOUSLY HAD BEEN SAID, MANY THINGS WOULD BE LEFT UNWRITTEN THAT
PREVIOUSLY HAD BEEN WRITTEN, THAT, FOR EXAMPLE, IN TEACHING A MORE BARE
OUTLINE, WOULD BE GIVEN, AND THE INSTRUCTOR WOULD FILL IN THE
REVOLUTIONARY PART, OR THE STUDENTS WOULD BE SENT INTO THE MARXIST
LENINIST WORKS AS REFERENCES TO FIND THE REVOLUTION, WITHOUT HAVING IT
SPELLED OUT IN THE OUTLINE. 

"HE SAID, THAT, NATURALLY, WOULD NOT CHANGE THE BASIC PARTY GOAL OR
THE BASIC AIMS OF THE COMMUNIST PARTY, BUT THAT IT WOULD MAKE IT MORE
DIFFICULT FOR COMMUNISTS TO BE CONVICTED. 

     *         *         *         *         * 

"ONE THING I RECALL DURING OUR DISCUSSION, HE HAD GIVEN ME A
PAMPHLET, A STUDY OUTLINE ENTITLED WHITE CHAUVINISM, AND HE POINTED OUT
TO ME, HE SAID, 'NOW I HAVE BEEN INSTRUCTING YOU FROM THAT OUTLINE, BUT
TECHNICALLY IT IS ILLEGAL BECAUSE WE COMMUNISTS HAVE DISCLAIMED IT, SO
THAT YOU ARE HOLDING AN ILLEGAL DOCUMENT THERE, ACTUALLY.'" 

FN26  ONE OF CHILDS' EARLY TASKS, ASSIGNED HIM BY THE DISTRICT
ORGANIZER, AS A COMMUNIST PARTY MEMBER WAS TO SERVE AS BODYGUARD FOR A
VISITING OFFICIAL OF THE CIVIL RIGHTS CONGRESS.  THE OFFICIAL,
ACCOMPANIED BY CHILDS AND PETITIONER, SPOKE IN CHAPEL HILL IN FEBRUARY
OF 1951 ON THE KOREAN WAR.  HIS THEME, ACCORDING TO CHILDS, WAS "THAT
THE KOREAN WAR WAS BEING USED BY THE CAPITALISTS AS A MEANS OF
OPPRESSING THE NEGRO PEOPLE  ...  THAT THE CAPITALISTS ARE SENDING THE
NEGROES TO KOREA TO FIGHT THE KOREAN PEOPLE WHO ARE TRYING TO FIGHT FOR
THEIR RIGHTS, THE SAME AS THE NEGRO PEOPLE ARE IN THE SOUTH."  CHILDS
TOOK NOTES ON THE SPEECH, AND TESTIFIED THAT THE OFFICIAL'S "EXACT
WORDS" WERE: 

"IN KOREA THEY ARE STILL CALLED NIGGERS.  NIGGERS ARE COURT-MARTIALED
FOR REFUSING TO HAVE THEIR MEN SLAUGHTERED.  LIEUTENANT GILBERT IS ONE
EXAMPLE.  THEY SAY THAT THE NIGGER IS YELLOW.  YELLOW, GIVE THE NIGGERS
IN NORTH CAROLINA AND GEORGIA RIFLES AND TELL THEM TO FIGHT FOR THEIR
RIGHTS.  YELLOW, MAN, YOU WILL SEE FIGHTING LIKE YOU HAVE NEVER SEEN
BEFORE." 

FN27  THE TRIAL COURT CHARGED:  "MOREOVER, THE TEACHING IN THE
ABSTRACT OR TEACHING OBJECTIVELY, THAT IS, TEACHING, DISCUSSING,
EXPLAINING, OR EXPOUNDING WHAT IS MEANT BY THE AIM OR PURPOSE OF ANY
AUTHOR, GROUP, OR SOCIETY OF OVERTHROWING THE GOVERNMENT BY FORCE AND
VIOLENCE IS NOT CRIMINAL.  FOR EXAMPLE, STUDY AND DISCUSSION BY THE
COMMUNIST PARTY OR BY ANY OTHER GROUP IN CLASSROOMS, OR IN STUDY
GROUPS, OR PUBLIC OR PRIVATE MEETINGS WITH THE OBJECT OF INFORMING THE
PARTICIPANTS OR THE AUDIENCE OF THE AIMS AND PURPOSES OF THE DOCTRINES
OF MARX, LENIN, STALIN, OR THE COMMUNIST PARTY IS ENTIRELY LAWFUL. 
FURTHERMORE, WITHOUT BEING CRIMINAL, THE COMMUNIST PARTY COULD
PRIVATELY OR PUBLICLY ENDEAVOR TO PERSUADE ITS MEMBERS THAT THEY SHOULD
ADOPT AND ESPOUSE THE BELIEF THAT THE GOVERNMENT OF THE UNITED STATES
SHOULD BE OVERTHROWN BY FORCE AND VIOLENCE AS SPEEDILY AS CIRCUMSTANCES
WILL PERMIT.  THIS IS NO MORE THAN ADVOCATING AN IDEA, AND ADVOCATING
AN IDEA IS NO CRIME.  MOREOVER, WITHOUT TRANSGRESSING THE SMITH ACT,
THE PARTY MIGHT EVEN INSTRUCT ITS MEMBERS THAT IT WOULD BE FOR THEIR
GOOD AND BENEFIT, IF THIS BELIEF OR IDEA WERE CARRIED INTO EFFECT. 

"ALL OF THIS IS PERMISSIBLE BECAUSE SUCH UTTERANCES ARE PROTECTED BY
THE FIRST AMENDMENT OF THE FEDERAL CONSTITUTION, GUARANTEEING FREEDOM
OF SPEECH. 

"HOWEVER, IF THE PARTY WENT FURTHER, AND WITH THE INTENTION OF
OVERTHROWING THE GOVERNMENT BY FORCE AND VIOLENCE, IT TAUGHT, OR
ADVOCATED A RULE OR PRINCIPLE OF ACTION WHICH BOTH, ONE, CALLED ON ITS
MEMBERS TO TAKE FORCIBLE AND CONCRETE ACTION AT SOME ADVANTAGEOUS TIME
THEREAFTER TO OVERTHROW THE GOVERNMENT BY FORCE AND VIOLENCE, AND, TWO,
EXPRESSED THAT CALL IN SUCH WRITTEN OR ORAL WORDS AS WOULD REASONABLY
AND ORDINARILY BE CALCULATED TO INCITE ITS MEMBERS TO TAKE CONCRETE AND
FORCIBLE ACTION FOR SUCH OVERTHROW; THEN, IF THE COMMUNIST PARTY DID
THAT, THE PARTY BECAME SUCH A SOCIETY OR GROUP, AS WAS OUTLAWED BY THE
SMITH ACT. 

"TO BE CRIMINAL THE TEACHING OR ADVOCACY, OR THE CALL TO ACTION JUST
DESCRIBED NEED NOT BE FOR IMMEDIATE ACTION, THAT IS, FOR ACTION TODAY,
TOMORROW, NEXT MONTH, OR NEXT YEAR.  IT IS CRIMINAL, NONETHELESS, IF
THE ACTION IS TO BE AT AN UNNAMED TIME IN THE FUTURE, TO BE FIXED BY
THE CIRCUMSTANCES OR ON SIGNAL FROM THE PARTY. 

"IT IS CRIMINAL IF IT IS A CALL UPON THE MEMBERS TO BE READY, OR TO
STAND IN READINESS FOR ACTION, OR FOR A SUMMONS TO ACTION AT A
FAVORABLE, OR OPPORTUNE TIME IN THE FUTURE, OR AS SPEEDILY AS
CIRCUMSTANCES WILL PERMIT, PROVIDED ALWAYS THAT THE URGING OF SUCH
READINESS BE BY WORDS WHICH WOULD REASONABLY AND ORDINARILY BE
CALCULATED TO SPUR A PERSON TO READY HIMSELF FOR, AND TO TAKE ACTION
TOWARDS, THE OVERTHROW OF THE GOVERNMENT.  BUT THOSE TO WHOM THE
ADVOCACY OR URGING IS ADDRESSED MUST BE URGED TO DO SOMETHING NOW OR IN
THE FUTURE, RATHER THAN MERELY TO BELIEVE IN SOMETHING.  IN OTHER
WORDS, THE ADVOCACY MUST BE OF CONCRETE ACTION, AND NOT MERELY A BELIEF
IN ABSTRACT DOCTRINE.  HOWEVER, THE IMMEDIATE CONCRETE ACTION URGED
SHOULD BE INTENDED TO LEAD TOWARDS THE FORCIBLE OVERTHROW, AND BE SO
UNDERSTOOD BY THOSE TO WHOM THE ADVOCACY IS ADDRESSED." 

FN28  ALTHOUGH MOST OF THE PARTICULARIZED EVIDENCE RELATED TO EVENTS
NOT WITHIN THE LIMITATIONS PERIOD, IT WAS OF COURSE OPEN TO THE JURY,
UNDER PROPER INSTRUCTIONS WHICH WERE GIVEN, TO INFER THAT SUCH EVENTS
REFLECTED THE CHARACTER OF PARTY ADVOCACY DURING THE LIMITATIONS
PERIOD.  PETITIONER DOES NOT CONTEND TO THE CONTRARY. 

FN29  THE TRIAL COURT CHARGED:  "THE DEFENDANT ADMITS THAT HE WAS A
MEMBER OF THE PARTY.  FOR HIS MEMBERSHIP TO BE CRIMINAL, HOWEVER, IT IS
NOT SUFFICIENT THAT HE BE SIMPLY A MEMBER.  IT MUST BE MORE THAN A
NOMINAL, PASSIVE, INACTIVE, OR PURELY TECHNICAL MEMBERSHIP.  IN
DETERMINING WHETHER HE WAS AN ACTIVE OR INACTIVE MEMBER, CONSIDER HOW
MUCH OF HIS TIME AND EFFORTS HE DEVOTED TO THE PARTY.   TO BE ACTIVE HE
MUST HAVE DEVOTED ALL, OR A SUBSTANTIAL PART, OF HIS TIME AND EFFORTS
TO THE PARTY." 

MR. JUSTICE BLACK, DISSENTING. 

PETITIONER WAS CONVICTED FOR VIOLATION OF THE "MEMBERSHIP CLAUSE" OF
THE SMITH ACT WHICH IMPOSES A PENALTY OF UP TO TWENTY YEARS'
IMPRISONMENT TOGETHER WITH A FINE OF $20,000 UPON ANYONE WHO "BECOMES
OR IS A MEMBER OF, OR AFFILIATES WITH, ANY  ...  SOCIETY, GROUP, OR
ASSEMBLY OF PERSONS WHO TEACH, ADVOCATE, OR ENCOURAGE THE OVERTHROW OF
THE EXISTING GOVERNMENT BY FORCE OR VIOLENCE, KNOWING THE PURPOSES
THEREOF  ... ."  (FN1)  REJECTING NUMEROUS CONTENTIONS URGED FOR
REVERSAL, THE COURT UPHOLDS A SIX-YEAR SENTENCE IMPOSED UPON PETITIONER
UNDER THE AUTHORITY OF ITS PRIOR DECISIONS IN DENNIS V. UNITED STATES
(FN2) AND YATES V. UNITED STATES.  (FN3)  MY REASONS FOR DISSENTING
FROM THIS DECISION ARE PRIMARILY THOSE SET OUT BY MR. JUSTICE BRENNAN -
THAT SEC. 4(F) OF THE SUBVERSIVE ACTIVITIES CONTROL ACT (FN4) BARS
PROSECUTIONS UNDER THE MEMBERSHIP CLAUSE OF THE SMITH ACT - AND MR.
JUSTICE DOUGLAS - THAT THE FIRST AMENDMENT ABSOLUTELY FORBIDS CONGRESS
TO OUTLAW MEMBERSHIP IN A POLITICAL PARTY OR SIMILAR ASSOCIATION MERELY
BECAUSE ONE OF THE PHILOSOPHICAL TENETS OF THAT GROUP IS THAT THE
EXISTING GOVERNMENT SHOULD BE OVERTHROWN BY FORCE AT SOME DISTANT TIME
IN THE FUTURE WHEN CIRCUMSTANCES MAY PERMIT.  THERE ARE, HOWEVER, TWO
ADDITIONAL POINTS THAT I THINK SHOULD ALSO BE MENTIONED. 

IN AN ATTEMPT TO BRING THE ISSUE OF THE CONSTITUTIONALITY OF THE
MEMBERSHIP CLAUSE OF THE SMITH ACT WITHIN THE AUTHORITY OF THE DENNIS
AND YATES CASES, THE COURT HAS PRACTICALLY REWRITTEN THE STATUTE UNDER
WHICH PETITIONER STANDS CONVICTED BY TREATING THE REQUIREMENTS OF
"ACTIVITY" AND "SPECIFIC INTENT" AS IMPLICIT IN WORDS THAT PLAINLY DO
NOT INCLUDE THEM.  PETITIONER'S CONVICTION IS UPHELD JUST AS THOUGH THE
MEMBERSHIP CLAUSE HAD ALWAYS CONTAINED THESE REQUIREMENTS.  IT SEEMS
CLEAR TO ME THAT NEITHER PETITIONER NOR ANYONE ELSE COULD EVER HAVE
GUESSED THAT THIS LAW WOULD BE HELD TO MEAN WHAT THIS COURT NOW HOLDS
IT DOES MEAN.  FOR THAT REASON, IT APPEARS THAT PETITIONER HAS BEEN
CONVICTED UNDER A LAW THAT IS, AT BEST, UNCONSTITUTIONALLY VAGUE AND,
AT WORST, EX POST FACTO.  (FN5)  HE HAS THEREFORE BEEN DEPRIVED OF HIS
RIGHT TO BE TRIED UNDER A CLEARLY DEFINED, PRE-EXISTING "LAW OF THE
LAND" AS GUARANTEED BY THE DUE PROCESS CLAUSE AND I THINK HIS
CONVICTION SHOULD BE REVERSED ON THAT GROUND.  (FN6) 

SECONDLY, I THINK IT IS IMPORTANT TO POINT OUT THE MANNER IN WHICH
THIS CASE RE-EMPHASIZES THE FREEDOM-DESTROYING NATURE OF THE "BALANCING
TEST" PRESENTLY IN USE BY THE COURT TO JUSTIFY ITS REFUSAL TO APPLY
SPECIFIC CONSTITUTIONAL PROTECTIONS OF THE BILL OF RIGHTS.  IN SOME OF
THE RECENT CASES IN WHICH IT HAS "BALANCED" AWAY THE PROTECTIONS OF THE
FIRST AMENDMENT, THE COURT HAS SUGGESTED THAT IT WAS JUSTIFIED IN THE
APPLICATION OF THIS "TEST" BECAUSE NO DIRECT ABRIDGMENT OF FIRST
AMENDMENT FREEDOMS WAS INVOLVED, THE ABRIDGMENT IN EACH OF THESE CASES
BEING, IN THE COURT'S OPINION, NOTHING MORE THAN "AN INCIDENT OF THE
INFORMED EXERCISE OF A VALID GOVERNMENTAL FUNCTION."  (FN7)  A POSSIBLE
IMPLICATION OF THAT SUGGESTION WAS THAT IF THE COURT WERE CONFRONTED
WITH WHAT IT WOULD CALL A DIRECT ABRIDGMENT OF SPEECH, IT WOULD NOT
APPLY THE "BALANCING TEST" BUT WOULD ENFORCE THE PROTECTIONS OF THE
FIRST AMENDMENT ACCORDING TO ITS OWN TERMS.  THIS CASE CAUSES ME TO
DOUBT THAT SUCH AN IMPLICATION IS JUSTIFIED.  PETITIONER IS BEING SENT
TO JAIL FOR THE EXPRESS REASON THAT HE HAS ASSOCIATED WITH PEOPLE WHO
HAVE ENTERTAINED UNLAWFUL IDEAS AND SAID UNLAWFUL THINGS, AND THAT OF
COURSE IS A DIRECT ABRIDGMENT OF HIS FREEDOMS OF SPEECH AND ASSEMBLY -
UNDER ANY DEFINITION THAT HAS EVER BEEN USED FOR THAT TERM. 
NEVERTHELESS, EVEN AS TO THIS ADMITTEDLY DIRECT ABRIDGMENT, THE COURT
RELIES UPON ITS PRIOR DECISIONS TO THE EFFECT THAT THE GOVERNMENT HAS
POWER TO ABRIDGE SPEECH AND ASSEMBLY IF ITS INTEREST IN DOING SO IS
SUFFICIENT TO OUTWEIGH THE INTEREST IN PROTECTING THESE FIRST AMENDMENT
FREEDOMS.  (FN8) 

THIS, I THINK, DEMONSTRATES THE UNLIMITED BREADTH AND DANGER OF THE
"BALANCING TEST" AS IT IS CURRENTLY BEING APPLIED BY A MAJORITY OF THIS
COURT.  UNDER THAT "TEST," THE QUESTION IN EVERY CASE IN WHICH A FIRST
AMENDMENT RIGHT IS ASSERTED IS NOT WHETHER THERE HAS BEEN AN ABRIDGMENT
OF THAT RIGHT, NOT WHETHER THE ABRIDGMENT OF THAT RIGHT WAS INTENTIONAL
ON THE PART OF THE GOVERNMENT, AND NOT WHETHER THERE IS ANY OTHER WAY
IN WHICH THE GOVERNMENT COULD ACCOMPLISH A LAWFUL AIM WITHOUT AN
INVASION OF THE CONSTITUTIONALLY GUARANTEED RIGHTS OF THE PEOPLE.  IT
IS, RATHER, SIMPLY WHETHER THE GOVERNMENT HAS AN INTEREST IN ABRIDGING
THE RIGHT INVOLVED AND, IF SO, WHETHER THAT INTEREST IS OF SUFFICIENT
IMPORTANCE, IN THE OPINION OF A MAJORITY OF THIS COURT, TO JUSTIFY THE
GOVERNMENT'S ACTION IN DOING SO.  THIS DOCTRINE, TO SAY THE VERY LEAST,
IS CAPABLE OF BEING USED TO JUSTIFY ALMOST ANY ACTION GOVERNMENT MAY
WISH TO TAKE TO SUPPRESS FIRST AMENDMENT FREEDOMS. 

FN1  18 U.S.C. SEC. 2385. 

FN2  341 U.S. 494. 

FN3  354 U.S. 298. 

FN4  50 U.S.C. SEC. 783(F). 

FN5  THE FACT THAT THE COURT'S REWRITING OF THE STATUTE HAS, IN THIS
CASE, NARROWED THE STATUTE RATHER THAN BROADENED IT DOES NOT CHANGE
THIS CONCLUSION.  PETITIONER HAS A RIGHT TO HAVE THE CONSTITUTIONALITY
OF THE STATUTE CONSIDERED ON THE BASIS UPON WHICH IT WAS ORIGINALLY
WRITTEN, FOR THAT WAS THE CONDITION OF THE STATUTE WHEN HE VIOLATED IT.
THE DANGER OF THE PRACTICE IN WHICH THE COURT IS ENGAGING IS POINTED
UP BY ITS DECISION IN THE COMPANION CASE, COMMUNIST PARTY V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, ANTE, P. 1, IN WHICH IT IMPOSES THE BURDEN
UPON THE MEMBERS OF THAT PARTY TO GUESS AS TO WHAT SECTIONS OF THE
SUBVERSIVE ACTIVITIES CONTROL ACT WILL BE HELD UNCONSTITUTIONAL.   THE
DIFFICULTY OF THAT BURDEN IS TREMENDOUSLY INCREASED BY THE DECISION IN
THIS CASE FOR THEY CANNOT KNOW HOW MANY AND WHAT KIND OF ADDITIONAL
REQUIREMENTS WILL BE FOUND TO BE "IMPLIED" AND PLACED INTO THE
"BALANCE" BY WHICH THE CONSTITUTIONALITY OF QUESTIONABLE PROVISIONS OF
THAT ACT WILL BE DETERMINED. 

FN6  COHEN V. HURLEY, 366 U.S. 117, 131 (DISSENTING OPINION).  SEE
ALSO KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36, 56 (DISSENTING
OPINION). 

FN7  KONIGSBERG V. STATE BAR OF CALIFORNIA, 366 U.S. 36, 51.  SEE
ALSO UPHAUS V. WYMAN, 360 U.S. 72; BARENBLATT V. UNITED STATES, 360
U.S. 109; UPHAUS V. WYMAN, 364 U.S. 388; WILKINSON V. UNITED STATES,
365 U.S. 399; BRADEN V. UNITED STATES, 365 U.S. 431; IN RE ANASTAPLO,
366 U.S. 82.  IN EACH OF THESE CASES, I DISAGREED, AS I STILL DO, WITH
THE MAJORITY'S CHARACTERIZATION OF THE ABRIDGMENT INVOLVED AS
"INCIDENTAL," AS I UNDERSTAND THAT TERM TO HAVE SIGNIFICANCE IN FIRST
AMENDMENT CASES.  SEE PARTICULARLY MY DISSENTING OPINION IN THE
KONIGSBERG CASE, SUPRA, AT 68-71. 

FN8  THE DECISIONS IN BOTH OF THE CASES UPON WHICH THE COURT HERE
RELIES WERE RESTED ON THE "BALANCING TEST."  SEE DENNIS V. UNITED
STATES, SUPRA, AT 506-511; YATES V. UNITED STATES, SUPRA, AT 321. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHEN WE ALLOW PETITIONER TO BE SENTENCED TO PRISON FOR SIX YEARS FOR
BEING A "MEMBER" OF THE COMMUNIST PARTY, WE MAKE A SHARP BREAK WITH
TRADITIONAL CONCEPTS OF FIRST AMENDMENT RIGHTS AND MAKE SERIOUS MARK
TWAIN'S LIGHTHEARTED COMMENT THAT "IT IS BY THE GOODNESS OF GOD THAT IN
OUR COUNTRY WE HAVE THOSE THREE UNSPEAKABLY PRECIOUS THINGS: FREEDOM OF
SPEECH, FREEDOM OF CONSCIENCE, AND THE PRUDENCE NEVER TO PRACTICE
EITHER OF THEM."  (FN1) 

EVEN THE ALIEN AND SEDITION LAWS - SHAMEFUL REMINDERS OF AN EARLY
CHAPTER IN INTOLERANCE - NEVER WENT SO FAR AS WE GO TODAY.  THEY WERE
AIMED AT CONSPIRACY AND ADVOCACY OF INSURRECTION AND AT THE PUBLICATION
OF "FALSE, SCANDALOUS AND MALICIOUS" WRITING AGAINST THE GOVERNMENT, 1
STAT. 596.  THE GOVERNMENT THEN SOUGHT CONTROL OVER THE PRESS "IN ORDER
TO STRIKE AT ONE OF THE CHIEF SOURCES OF DISAFFECTION AND SEDITION." 
MILLER, CRISIS IN FREEDOM (1951), P. 56.  THERE IS HERE NO CHARGE OF
CONSPIRACY, NO CHARGE OF ANY OVERT ACT TO OVERTHROW THE GOVERNMENT BY
FORCE AND VIOLENCE, NO CHARGE OF ANY OTHER CRIMINAL ACT.  THE CHARGE IS
BEING A "MEMBER" OF THE COMMUNIST PARTY, "WELL-KNOWING" THAT IT
ADVOCATED THE OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE, "SAID
DEFENDANT INTENDING TO BRING ABOUT SUCH OVERTHROW BY FORCE AND VIOLENCE
AS SPEEDILY AS CIRCUMSTANCES WOULD PERMIT."  THAT FALLS FAR SHORT OF A
CHARGE OF CONSPIRACY.  CONSPIRACY RESTS NOT IN INTENTION ALONE BUT IN
AN AGREEMENT WITH ONE OR MORE OTHERS TO PROMOTE AN UNLAWFUL PROJECT. 
UNITED STATES V. FALCONE, 311 U.S. 205, 210; DIRECT SALES CO. V. UNITED
STATES, 319 U.S. 703, 713.  NO CHARGE OF ANY KIND OR SORT OF AGREEMENT
HITHERTO EMBRACED IN THE CONCEPT OF A CONSPIRACY IS MADE HERE. 

WE LEGALIZE TODAY GUILT BY ASSOCIATION, SENDING A MAN TO PRISON WHEN
HE COMMITTED NO UNLAWFUL ACT.   TODAY'S BREAK WITH TRADITION IS A
SERIOUS ONE.  IT BORROWS FROM THE TOTALITARIAN PHILOSOPHY.  AS STATED
BY O'BRIAN, NATIONAL SECURITY AND INDIVIDUAL FREEDOM (1955), PP. 27
28: 

"THE SMITH ACT OF 1940 MADE IT UNLAWFUL FOR ANY PERSON TO BE OR TO
BECOME A MEMBER OF OR AFFILIATE WITH ANY SOCIETY, GROUP, OR ASSEMBLY
WHICH TEACHES, ADVOCATES, OR ENCOURAGES THE OVERTHROW OR DESTRUCTION OF
ANY GOVERNMENT IN THE UNITED STATES BY FORCE OR VIOLENCE.  THESE
STATUTES (THE SMITH ACT TOGETHER WITH A 1920 AMENDMENT TO THE
IMMIGRATION LAW, ACT OF JUNE 5, 1920, 41 STAT. 1008), THEREFORE,
IMPORTED INTO OUR LAW THE ALIEN DOCTRINE OF GUILT BY ASSOCIATION, WHICH
UP TO THIS TIME HAD BEEN REGARDED AS ABHORRENT AND WHICH HAD NEVER BEEN
RECOGNIZED EITHER BY THE COURTS OR BY THE DEPARTMENT OF JUSTICE, EVEN
DURING THE PERILS AND EXCITEMENTS OF THE FIRST WORLD WAR." 

THE CASE IS NOT SAVED BY SHOWING THAT PETITIONER WAS AN ACTIVE
MEMBER.  NONE OF THE ACTIVITY CONSTITUTES A CRIME.  THE RECORD CONTAINS
EVIDENCE THAT SCALES WAS THE CHAIRMAN OF THE NORTH AND SOUTH CAROLINA
DISTRICTS OF THE COMMUNIST PARTY.  HE RECRUITED NEW MEMBERS INTO THE
PARTY, AND PROMOTED THE ADVANCED EDUCATION OF SELECTED YOUNG PARTY
MEMBERS IN THE THEORY OF COMMUNISM TO BE UNDERTAKEN AT SECRET SCHOOLS. 
HE WAS A DIRECTOR OF ONE SUCH SCHOOL.  HE EXPLAINED THE PRINCIPLES OF
THE PARTY TO AN FBI AGENT WHO POSED AS SOMEONE INTERESTED IN JOINING
THE PARTY, AND FURNISHED HIM LITERATURE, INCLUDING ARTICLES WHICH
CRITICIZED IN VIVID LANGUAGE THE AMERICAN "AGGRESSION" IN KOREA AND
DESCRIBED AMERICAN "ATROCITIES" COMMITTED ON KOREAN CITIZENS.  HE ONCE
REMARKED THAT THE PARTY WAS SETTING UP UNDERGROUND MEANS OF
COMMUNICATION, AND IN 1951 HE HIMSELF "WENT UNDERGROUND."  AT THE
SCHOOL OF WHICH SCALES WAS DIRECTOR, STUDENTS WERE TOLD (BY SOMEONE
ELSE) THAT ONE OF THE PARTY'S WEAKNESSES WAS IN FAILING TO PLACE PEOPLE
IN KEY INDUSTRIAL POSITIONS.  ONE WITNESS TOLD OF A MEETING ARRANGED BY
SCALES AT WHICH THE STAFF OF THE SCHOOL URGED HIM TO REMAIN IN HIS
POSITION IN AN INDUSTRIAL PLANT RATHER THAN RETURN TO COLLEGE.  IN
SCALES' PRESENCE, STUDENTS AT THE SCHOOL WERE ONCE SHOWN HOW TO KILL A
PERSON WITH A PENCIL, A DEVICE WHICH, IT WAS SAID, MIGHT COME IN HANDY
ON A PICKET LINE.  OTHER EVIDENCE SHOWED SCALES TO HAVE MADE SEVERAL
STATEMENTS OR DISTRIBUTED LITERATURE CONTAINING IMPLICATING PASSAGES. 
AMONG THEM WERE COMMENTS TO THE EFFECT THAT THE PARTY LINE WAS THAT THE
NEGROES IN THE SOUTH AND THE WORKING CLASSES SHOULD BE USED TO FOMENT A
VIOLENT REVOLUTION; THAT A COMMUNIST GOVERNMENT COULD NOT BE VOTED INTO
POWER IN THIS COUNTRY BECAUSE THE GOVERNMENT CONTROLLED COMMUNICATION
MEDIA, NEWSPAPERS, THE MILITARY, AND THE EDUCATIONAL SYSTEMS, AND THAT
FORCE WAS THE ONLY WAY TO ACHIEVE THE REVOLUTION; THAT IF A DEPRESSION
WERE TO COME THE COMMUNIST AMERICA WOULD BE CLOSER AT HAND THAN
PREDICTED BY WILLIAM Z. FOSTER; THAT THE REVOLUTION WOULD COME WITHIN A
GENERATION; THAT IT WOULD BE EASIER IN THE UNITED STATES THAN IN RUSSIA
TO EFFECTUATE THE REVOLUTION BECAUSE OF ASSISTANCE AND ADVICE FROM
RUSSIAN COMMUNISTS.  PETITIONER AT DIFFERENT TIMES SAID OR DISTRIBUTED
LITERATURE WHICH SAID THAT THE GOALS OF COMMUNISM COULD ONLY BE
ACHIEVED BY VIOLENT REVOLUTION THAT WOULD HAVE TO START INTERNALLY WITH
THE WORKING CLASSES. 

NOT ONE SINGLE ILLEGAL ACT IS CHARGED TO PETITIONER.  THAT IS WHY THE
ESSENCE OF THE CRIME COVERED BY THE INDICTMENT IS MERELY BELIEF (FN2) -
BELIEF IN THE PROLETARIAN REVOLUTION, BELIEF IN COMMUNIST CREED. 

SPINOZA SUMMED UP IN A SENTENCE MUCH OF THE HISTORY OF THE STRUGGLE
OF MAN TO THINK AND SPEAK WHAT HE BELIEVES: 

"LAWS WHICH DECREE WHAT EVERY ONE MUST BELIEVE, AND FORBID UTTERANCE
AGAINST THIS OR THAT OPINION, HAVE TOO OFTEN BEEN ENACTED TO CONFIRM OR
ENLARGE THE POWER OF THOSE WHO DARED NOT SUFFER FREE INQUIRY TO BE
MADE, AND HAVE BY A PERVERSION OF AUTHORITY TURNED THE SUPERSTITION OF
THE MOB INTO VIOLENCE AGAINST OPPONENTS."  TRACTATUS THEOLOGICO
POLITICUS (LONDON 1862) P. 349. 

"THE THOUGHT OF MAN SHALL NOT BE TRIED, FOR THE DEVIL HIMSELF KNOWETH
NOT THE THOUGHT OF MAN," SAID CHIEF JUSTICE BRIAN IN Y.B. PASCH, 17
EDW.  IV, F. 2, PL. 2.  THE CRIME OF BELIEF - PRESENTLY PROSECUTED - IS
A CARRYBACK TO THE OLD LAW OF TREASON WHERE MEN WERE PUNISHED FOR
COMPASSING THE DEATH OF THE KING.  THAT LAW, WHICH HAD BEEN EMPLOYED
FOR "SUPPRESSION OF POLITICAL OPPOSITION OR THE EXPRESSION OF IDEAS OR
BELIEFS DISTASTEFUL TO THOSE IN POWER," HURST, HISTORIC BACKGROUND OF
THE TREASON CLAUSE, 6 FED. B.J. 305, 307, WAS REJECTED HERE, AND THE
TREASON CLAUSE OF OUR CONSTITUTION WAS "MOST PRAISED FOR THE REASON
THAT IT PREVENTED THE USE OF TREASON TRIALS AS AN INSTRUMENT OF
POLITICAL FACTION."  ID., 307.  SEDITION OR TREASON IN THE REALM OF
POLITICS AND HERESY IN THE ECCLESIASTICAL FIELD HAD LONG CENTERED ON
BELIEFS AS THE ABHORRENT CRIMINAL ACT.  THE STRUGGLE ON THIS SIDE OF
THE ATLANTIC WAS TO GET RID OF THAT CONCEPT AND TO PUNISH MEN NOT FOR
WHAT THEY THOUGHT BUT FOR OVERT ACTS AGAINST THE PEACE OF THE NATION. 
CRAMER V. UNITED STATES, 325 U.S. 1, 28-30.  MONTESQUIEU, WHO WAS A
FORCE IN THE THINKING OF THOSE TIMES (ID., 15, N. 21), PROCLAIMED
AGAINST PUNISHING THOUGHTS OR WORDS: 

"THERE WAS A LAW PASSED IN ENGLAND UNDER HENRY VIII, BY WHICH WHOEVER
PREDICTED THE KING'S DEATH WAS DECLARED GUILTY OF HIGH TREASON.  THIS
LAW WAS EXTREMELY VAGUE; THE TERROR OF DESPOTIC POWER IS SO GREAT THAT
IT RECOILS UPON THOSE WHO EXERCISE IT.  IN THE KING'S LAST ILLNESS, THE
PHYSICIANS WOULD NOT VENTURE TO SAY HE WAS IN DANGER; AND SURELY THEY
ACTED VERY RIGHT  ...  .  MARSYAS DREAMED THAT HE HAD CUT DIONYSIUS'S
THROAT.  DIONYSIUS PUT HIM TO DEATH, PRETENDING THAT HE WOULD NEVER
HAVE DREAMED OF SUCH A THING BY NIGHT IF HE HAD NOT THOUGHT OF IT BY
DAY.  THIS WAS A MOST TYRANNICAL ACTION:  FOR THOUGH IT HAD BEEN THE
SUBJECT OF HIS THOUGHTS, YET HE HAD MADE NO ATTEMPT TOWARDS IT. THE
LAWS DO NOT TAKE UPON THEM TO PUNISH ANY OTHER THAN OVERT ACTS."  THE
SPIRIT OF LAWS (1949), VOL. 1, PP. 192-193.    "WORDS DO NOT CONSTITUTE
AN OVERT ACT; THEY REMAIN ONLY IN IDEA."  ID., 193. 

THESE WERE THE NOTIONS THAT LED TO THE RESTRICTIVE DEFINITION OF
TREASON, PRESENTLY CONTAINED IN ART. III, SEC. 3, OF THE CONSTITUTION,
WHICH REQUIRES OVERT ACTS.  CRAMER V. UNITED STATES, SUPRA; HAUPT V.
UNITED STATES, 330 U.S. 631, 645 (CONCURRING OPINION); HURST, TREASON
IN THE UNITED STATES, 58 HARV. L. REV. 395.  OUR LONG AND PAINFUL
EXPERIENCE WITH THE LAW OF TREASON, WHOLLY APART FROM THE FIRST
AMENDMENT, SHOULD BE ENOUGH WARNING THAT WE AS A FREE PEOPLE SHOULD NOT
VENTURE AGAIN INTO THE FIELD OF PROSECUTING BELIEFS. 

THAT WAS THE PHILOSOPHY BEHIND BOARD OF EDUCATION V. BARNETTE, 319
U.S. 624, 641-642: 

"WE CAN HAVE INTELLECTUAL INDIVIDUALISM AND THE RICH CULTURAL
DIVERSITIES THAT WE OWE TO EXCEPTIONAL MINDS ONLY AT THE PRICE OF
OCCASIONAL ECCENTRICITY AND ABNORMAL ATTITUDES.  WHEN THEY ARE SO
HARMLESS TO OTHERS OR TO THE STATE AS THOSE WE DEAL WITH HERE, THE
PRICE IS NOT TOO GREAT.  BUT FREEDOM TO DIFFER IS NOT LIMITED TO THINGS
THAT DO NOT MATTER MUCH.  THAT WOULD BE A MERE SHADOW OF FREEDOM.  THE
TEST OF ITS SUBSTANCE IS THE RIGHT TO DIFFER AS TO THINGS THAT TOUCH
THE HEART OF THE EXISTING ORDER. 

"IF THERE IS ANY FIXED STAR IN OUR CONSTITUTIONAL CONSTELLATION, IT
IS THAT NO OFFICIAL, HIGH OR PETTY, CAN PRESCRIBE WHAT SHALL BE
ORTHODOX IN POLITICS, NATIONALISM, RELIGION, OR OTHER MATTERS OF
OPINION OR FORCE CITIZENS TO CONFESS BY WORD OR ACT THEIR FAITH
THEREIN.  IF THERE ARE ANY CIRCUMSTANCES WHICH PERMIT AN EXCEPTION,
THEY DO NOT NOW OCCUR TO US." 

NOTHING BUT BELIEFS IS ON TRIAL IN THIS CASE.  THEY ARE UNPOPULAR AND
TO MOST OF US REVOLTING.  BUT THEY ARE NONETHELESS IDEAS OR DOGMAS OR
FAITHS WITHIN THE BROAD FRAMEWORK OF THE FIRST AMENDMENT.  SEE
BARENBLATT V. UNITED STATES, 360 U.S. 109, 145-152 (DISSENT).  THE
CREED TRUER TO OUR FAITH WAS STATED BY THE BAR COMMITTEE HEADED BY
CHARLES E. HUGHES WHICH IN 1920 PROTESTED THE REFUSAL OF THE NEW YORK
ASSEMBLY TO SEAT FIVE MEMBERS OF THE SOCIALIST PARTY:  (FN3) 

"  ...  IT IS OF THE ESSENCE OF THE INSTITUTIONS OF LIBERTY THAT IT
BE RECOGNIZED THAT GUILT IS PERSONAL AND CANNOT BE ATTRIBUTED TO THE
HOLDING OF OPINION OR TO MERE INTENT IN THE ABSENCE OF OVERT ACTS  ...
." 

BELIEF IN THE PRINCIPLE OF REVOLUTION IS DEEP IN OUR TRADITIONS.  THE
DECLARATION OF INDEPENDENCE (FN4) PROCLAIMS IT: 

"WHENEVER ANY FORM OF GOVERNMENT BECOMES DESTRUCTIVE OF THESE ENDS,
IT IS THE RIGHT OF THE PEOPLE TO ALTER OR TO ABOLISH IT, AND TO
INSTITUTE NEW GOVERNMENT, LAYING ITS FOUNDATION ON SUCH PRINCIPLES, AND
ORGANIZING ITS POWERS IN SUCH FORM, AS TO THEM SHALL SEEM MOST LIKELY
TO EFFECT THEIR SAFETY AND HAPPINESS." 

THIS RIGHT OF REVOLUTION HAS BEEN AND IS A PART OF THE FABRIC OF OUR
INSTITUTIONS.  (FN5)  LAST CENTURY WHEN RUSSIA INVADED HUNGARY AND
SUBDUED HER, LOUIS KOSSUTH CAME HERE TO ENLIST AMERICAN SUPPORT.  ON
JANUARY 8, 1852, LINCOLN SPOKE IN SYMPATHY OF THE HUNGARIAN CAUSE AND
WAS A MEMBER OF A COMMITTEE WHICH ON JANUARY 9, 1852, SUBMITTED
RESOLUTIONS IN BEHALF OF HUNGARIAN FREEDOM.  AMONG THESE RESOLUTIONS
WAS ONE THAT READ: 

"THAT IT IS THE RIGHT OF ANY PEOPLE, SUFFICIENTLY NUMEROUS FOR
NATIONAL INDEPENDENCE, TO THROW OFF, TO REVOLUTIONIZE, THEIR EXISTING
FORM OF GOVERNMENT, AND TO ESTABLISH SUCH OTHER IN ITS STEAD AS THEY
MAY CHOOSE."  BASLER, VOL. II, THE COLLECTED WORKS OF ABRAHAM LINCOLN
(1953), P. 115. 

ON JANUARY 12, 1848, LINCOLN IN AN ADDRESS BEFORE THE UNITED STATES
HOUSE OF REPRESENTATIVES STATED:  "ANY PEOPLE ANYWHERE, BEING INCLINED
AND HAVING THE POWER, HAVE THE RIGHT TO RISE UP, AND SHAKE OFF THE
EXISTING GOVERNMENT, AND FORM A NEW ONE THAT SUITS THEM BETTER.  THIS
IS A MOST VALUABLE, - A MOST SACRED RIGHT - A RIGHT, WHICH WE HOPE AND
BELIEVE, IS TO LIBERATE THE WORLD."  ID., VOL. I, P. 438. 

OF COURSE, GOVERNMENT CAN MOVE AGAINST THOSE WHO TAKE UP ARMS AGAINST
IT.  OF COURSE, THE CONSTITUTED AUTHORITY HAS THE RIGHT OF SELF
PRESERVATION.  BUT WE DEAL IN THIS PROSECUTION OF SCALES ONLY WITH THE
LEGALITY OF IDEAS AND BELIEFS, NOT WITH OVERT ACTS.  THE COURT SPEAKS
OF THE PREVENTION OF "DANGEROUS BEHAVIOR" BY PUNISHING THOSE "WHO WORK
TO BRING ABOUT THAT BEHAVIOR."  THAT FORMULA RETURNS MAN TO THE DARK
DAYS WHEN GOVERNMENT DETERMINED WHAT BEHAVIOR WAS "DANGEROUS" AND THEN
POLICED THE DISSIDENTS FOR TELL-TALE SIGNS OF ADVOCACY.  WHAT IS
"DANGEROUS BEHAVIOR" THAT MUST BE SUPPRESSED IN ITS TALK-STAGE HAS HAD
A VIVID HISTORY EVEN ON THIS CONTINENT.  THE BRITISH COLONIAL
PHILOSOPHY WAS SUMMED UP BY SIR WILLIAM BERKELEY, WHO SERVED FROM 1641
TO 1677 AS VIRGINIA'S GOVERNOR:  "  ...  I THANK GOD, THERE ARE NO FREE
SCHOOLS NOR PRINTING, AND I HOPE WE SHALL NOT HAVE THESE HUNDRED YEARS;
FOR LEARNING HAS BROUGHT DISOBEDIENCE, AND HERESY, AND SECTS INTO THE
WORLD, AND PRINTING HAS DIVULGED THEM, AND LIBELS AGAINST THE BEST
GOVERNMENT.  GOD KEEP US FROM BOTH]"  2 HENINGS'S STAT. VA. 1660-1682,
P. 517.  THE HISTORY IS FAMILIAR; MUCH OF IT IS REVIEWED IN CHAFEE, THE
BLESSINGS OF LIBERTY (1956).  HE STATES IN ONE PARAGRAPH WHAT I THINK
IS THE JEFFERSONIAN CONCEPTION OF THE FIRST AMENDMENT RIGHTS INVOLVED
IN THE PRESENT CASE: 

"WE MUST CHOOSE BETWEEN FREEDOM AND FEAR - WE CANNOT HAVE BOTH.  IF
THE CITIZENS OF THE UNITED STATES PERSIST IN BEING AFRAID, THE REAL
RULERS OF THIS COUNTRY WILL BE FANATICS FIRED WITH A ZEAL TO SAVE GROWN
MEN FROM OBJECTIONABLE IDEAS BY PUTTING THEM UNDER THE CARE OF OFFICIAL
NURSEMAIDS."  ID., 156. 

IN RECENT YEARS WE HAVE BEEN DEPARTING, I THINK, FROM THE THEORY OF
GOVERNMENT EXPRESSED IN THE FIRST AMENDMENT.  WE HAVE TOO OFTEN BEEN
"BALANCING" THE RIGHT OF SPEECH AND ASSOCIATION AGAINST OTHER VALUES IN
SOCIETY TO SEE IF WE, THE JUDGES, FEEL THAT A PARTICULAR NEED IS MORE
IMPORTANT THAN THOSE GUARANTEED BY THE BILL OF RIGHTS.  DENNIS V.
UNITED STATES, 341 U.S. 494, 508-509; COMMUNICATIONS ASSN. V. DOUDS,
339 U.S. 382, 399-400; N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 463-466;
UPHAUS V. WYMAN, 360 U.S. 72, 78-79; BARENBLATT V. UNITED STATES, 360
U.S. 109, 126-134; BATES V. LITTLE ROCK, 361 U.S. 516, 524; SHELTON V.
TUCKER, 364 U.S. 479; WILKINSON V. UNITED STATES, 365 U.S. 399; BRADEN
V. UNITED STATES, 365 U.S. 431; KONIGSBERG V. STATE BAR, 366 U.S. 36;
IN RE ANASTAPLO, 366 U.S. 82.  THIS APPROACH, WHICH TREATS THE COMMANDS
OF THE FIRST AMENDMENT AS "NO MORE THAN ADMONITIONS OF MODERATION" (SEE
HAND, THE SPIRIT OF LIBERTY (1960 ED.), P. 278), RUNS COUNTER TO OUR
PRIOR DECISIONS.  SEE LOVELL V. GRIFFIN, 303 U.S. 444, 450; MURDOCK V.
PENNSYLVANIA, 319 U.S. 105, 108; BOARD OF EDUCATION V. BARNETTE, 319
U.S. 624, 639. 

IT ALSO RUNS COUNTER TO MADISON'S VIEWS OF THE FIRST AMENDMENT AS WE
ARE ADVISED BY HIS EMINENT BIOGRAPHER, IRVING BRANT: 

"WHEN MADISON WROTE, 'CONGRESS SHALL MAKE NO LAW' INFRINGING THESE
RIGHTS, HE DID NOT EXPECT THE SUPREME COURT TO DECIDE, ON BALANCE,
WHETHER CONGRESS COULD OR COULD NOT MAKE A LAW INFRINGING THEM.   IT
WAS TRUE, HE OBSERVED IN PRESENTING HIS PROPOSALS, THAT STATE
LEGISLATIVE BODIES HAD VIOLATED MANY OF THE MOST VALUABLE ARTICLES IN
BILLS OF RIGHTS.  BUT THAT FURNISHED NO BASIS FOR JUDGING THE
EFFECTIVENESS OF THE PROPOSED AMENDMENTS: 

"'IF THEY ARE INCORPORATED INTO THE CONSTITUTION, INDEPENDENT
TRIBUNALS OF JUSTICE WILL CONSIDER THEMSELVES IN A PECULIAR MANNER THE
GUARDIANS OF THOSE RIGHTS; THEY WILL BE AN IMPENETRABLE BULWARK AGAINST
EVERY ASSUMPTION OF POWER IN THE LEGISLATIVE OR EXECUTIVE; THEY WILL BE
NATURALLY LED TO RESIST EVERY ENCROACHMENT UPON RIGHTS EXPRESSLY
STIPULATED FOR IN THE CONSTITUTION BY THE DECLARATION OF RIGHTS.' 

"THIS STATEMENT BY MADISON, ALONG WITH ALL THE REST OF HIS SPEECH, IS
SO DEVASTATING TO THE 'BALANCE THEORY' THAT EFFORTS HAVE BEEN AND ARE
BEING MADE TO DISCREDIT ITS AUTHENTICITY.  THE ANNALS OF CONGRESS, IT
IS SAID, IS NOT AN OFFICIAL DOCUMENT, BUT A COMPILATION OF STENOGRAPHIC
REPORTS (BY A SHORTHAND REPORTER ADMITTED TO THE FLOOR FOR THAT
PURPOSE) PUBLISHED IN THE PRESS AND CONTAINING NUMEROUS ERRORS.  THAT
IS TRUE, ALTHOUGH THE CHIEF COMPLAINT WAS THAT PARTIALLY CAUGHT
SENTENCES WERE MEANINGLESS.  IN GENERAL, THAT WHICH WAS CLEARLY
REPORTED WAS TRULY REPORTED.  IN THE CASE OF THIS ALL-IMPORTANT SPEECH,
MADISON SPOKE FROM NOTES, AND THE NOTES IN HIS HANDWRITING ARE IN THE
LIBRARY OF CONGRESS.  THEY PARALLEL THE SPEECH FROM END TO END,
SCANTILY, BUT LEAVING NO DOUBT OF THE FUNDAMENTAL FAITHFULNESS OF THE
REPORT."  THE MADISON HERITAGE, 35 N.Y.U.L. REV. 882, 899-900. 

BRANT GOES ON TO RELATE HOW MADISON OPPOSED A RESOLUTION OF CENSURE
AGAINST SOCIETIES CREATING THE POLITICAL TURMOIL THAT WAS BEHIND THE
WHISKEY REBELLION.  ID., P. 900.  HE EXPRESSED IN THE HOUSE THE VIEW
THAT OPINIONS ARE NOT OBJECTS OF LEGISLATION.  "IF WE ADVERT TO THE
NATURE OF REPUBLICAN GOVERNMENT, WE SHALL FIND THAT THE CENSORIAL POWER
IS IN THE PEOPLE OVER THE GOVERNMENT, AND NOT IN THE GOVERNMENT OVER
THE PEOPLE."  ID., P. 900. 

THE TREND OF HISTORY, AS JEFFERSON NOTED, HAS BEEN AGAINST THE RIGHTS
OF MAN.  HE WROTE THAT "THE NATURAL PROGRESS OF THINGS IS FOR LIBERTY
TO YIELD AND GOVERNMENT TO GAIN GROUND."  (FN6)  THE FORMULA HE
PREPARED FOR A SOCIETY WHERE IDEAS FLOURISHED WAS NOT PUNISHMENT OF THE
UNORTHODOX BUT EDUCATION AND ENLIGHTENMENT OF THE MASSES.  JEFFERSON
WROTE TO MADISON ON DECEMBER 20, 1787:  (FN7) 

"I OWN, I AM NOT A FRIEND TO A VERY ENERGETIC GOVERNMENT.  IT IS
ALWAYS OPPRESSIVE.  IT PLACES THE GOVERNORS INDEED MORE AT THEIR EASE,
AT THE EXPENSE OF THE PEOPLE.  THE LATE REBELLION IN MASSACHUSETTS HAS
GIVEN MORE ALARM, THAN I THINK IT SHOULD HAVE DONE.  CALCULATE THAT ONE
REBELLION IN THIRTEEN STATES IN THE COURSE OF ELEVEN YEARS, IS BUT ONE
FOR EACH STATE IN A CENTURY AND A HALF.   NO COUNTRY SHOULD BE SO LONG
WITHOUT ONE.  NOR WILL ANY DEGREE OF POWER IN THE HANDS OF GOVERNMENT,
PREVENT INSURRECTIONS.  IN ENGLAND, WHERE THE HAND OF POWER IS HEAVIER
THAN WITH US, THERE ARE SELDOM HALF A DOZEN YEARS WITHOUT AN
INSURRECTION.  IN FRANCE, WHERE IT IS STILL HEAVIER, BUT LESS DESPOTIC,
AS MONTESQUIEU SUPPOSES, THAN IN SOME OTHER COUNTRIES, AND WHERE THERE
ARE ALWAYS TWO OR THREE HUNDRED THOUSAND MEN READY TO CRUSH
INSURRECTIONS, THERE HAVE BEEN THREE IN THE COURSE OF THE THREE YEARS I
HAVE BEEN HERE, IN EVERY ONE OF WHICH GREATER NUMBERS WERE ENGAGED THAN
IN MASSACHUSETTS, AND A GREAT DEAL MORE BLOOD WAS SPILT.  IN TURKEY,
WHERE THE SOLE NOD OF THE DESPOT IS DEATH, INSURRECTIONS ARE THE EVENTS
OF EVERY DAY.  COMPARE AGAIN THE FEROCIOUS DEPREDATIONS OF THEIR
INSURGENTS, WITH THE ORDER, THE MODERATION AND THE ALMOST SELF
EXTINGUISHMENT OF OURS.  AND SAY, FINALLY, WHETHER PEACE IS BEST
PRESERVED BY GIVING ENERGY TO THE GOVERNMENT, OR INFORMATION TO THE
PEOPLE.  THIS LAST IS THE MOST CERTAIN, AND THE MOST LEGITIMATE ENGINE
OF GOVERNMENT.  EDUCATE AND INFORM THE WHOLE MASS OF THE PEOPLE. 
ENABLE THEM TO SEE THAT IT IS THEIR INTEREST TO PRESERVE PEACE AND
ORDER, AND THEY WILL PRESERVE THEM.  AND IT REQUIRES NO VERY HIGH
DEGREE OF EDUCATION TO CONVINCE THEM OF THIS.  THEY ARE THE ONLY SURE
RELIANCE FOR THE PRESERVATION OF OUR LIBERTY." 

THIS IS THE ONLY PHILOSOPHY CONSISTENT WITH THE FIRST AMENDMENT. 
WHEN BELIEF IN AN IDEA IS PUNISHED AS IT IS TODAY, WE SACRIFICE THOSE
IDEALS AND SUBSTITUTE AN ALIEN, TOTALITARIAN PHILOSOPHY IN THEIR
STEAD.  (FN8) 

"THE MOST INDIFFERENT ARGUMENTS," BISMARCK SAID, "ARE GOOD WHEN ONE
HAS A MAJORITY OF BAYONETS."  THAT IS ALSO TRUE WHEN ONE HAS THE
VOTES. 

WHAT WE LOSE BY MAJORITY VOTE TODAY MAY BE RECLAIMED AT A FUTURE TIME
WHEN THE FEAR OF ADVOCACY, DISSENT, AND NONCONFORMITY NO LONGER CAST A
SHADOW OVER US. 

FN1  FOLLOWING THE EQUATOR (1903), VOL. I, P. 198. 

FN2  THE PROTOTYPE OF THE PRESENT PROSECUTION IS FOUND IN COMMUNIST
LANDS.  THE COMMUNIST GOVERNMENT IN CZECHOSLOVAKIA ON OCTOBER 6, 1948,
PROMULGATED A LAW, SEC. 3 OF WHICH PROVIDED: 

"(1)  WHOEVER PUBLICLY OR BEFORE SEVERAL PEOPLE INSTIGATES AGAINST
THE REPUBLIC, AGAINST ITS INDEPENDENCE, CONSTITUTIONAL UNITY,
TERRITORIAL INTERGRITY OR ITS PEOPLE'S DEMOCRATIC SYSTEM OF GOVERNMENT,
ITS SOCIAL OR ECONOMIC ORDER, OR AGAINST ITS NATIONAL CHARACTER AS
GUARANTEED BY THE CONSTITUTION, SHALL BE PUNISHED FOR A MINOR CRIME BY
RIGOROUS CONFINEMENT FOR FROM THREE MONTHS TO THREE YEARS. 

"(2)  THE FOLLOWING SHALL BE PUNISHED IN LIKE MANNER:  WHOEVER
INTENTIONALLY OR THROUGH GROSS NEGLIGENCE MAKES THE DISSEMINATION OF
THE INSTIGATIVE STATEMENT SPECIFIED IN SUBSECTION 1 POSSIBLE OR EASY." 

FN3  N.Y.L. DOC., 143D SESS., 1920, VOL. 5, NO. 30, P. 4. 

FN4  "WHEN HONEST MEN ARE IMPELLED TO WITHDRAW THEIR ALLEGIANCE TO
THE ESTABLISHED LAW OR CUSTOM OF THE COMMUNITY, STILL MORE WHEN THEY
ARE PERSUADED THAT SUCH LAW OR CUSTOM IS TOO INIQUITOUS TO BE LONGER
TOLERATED, THEY SEEK FOR SOME PRINCIPLE MORE GENERALLY VALID, SOME
'LAW' OF HIGHER AUTHORITY, THAN THE ESTABLISHED LAW OR CUSTOM OF THE
COMMUNITY.  TO THIS HIGHER LAW OR MORE GENERALLY VALID PRINCIPLE THEY
THEN APPEAL IN JUSTIFICATION OF ACTIONS WHICH THE COMMUNITY CONDEMNS AS
IMMORAL OR CRIMINAL.  THEY FORMULATE THE LAW OR PRINCIPLE IN SUCH A WAY
THAT IT IS, OR SEEMS TO THEM TO BE, RATIONALLY DEFENSIBLE.  TO THEM IT
IS 'TRUE' BECAUSE IT BRINGS THEIR ACTIONS INTO HARMONY WITH A RIGHTLY
ORDERED UNIVERSE, AND ENABLES THEM TO THINK OF THEMSELVES AS HAVING
CHOSEN THE NOBLER PART, AS HAVING WITHDRAWN FROM A CORRUPT WORLD IN
ORDER TO SERVE GOD OR HUMANITY OR A FORCE THAT MAKES FOR THE HIGHEST
GOOD."  BECKER, THE DECLARATION OF INDEPENDENCE (1942), PP. 277-278. 
FN5  SEE THE APPENDIX TO THIS OPINION, POST, P. 275. 

FN6  7 THE WRITINGS OF THOMAS JEFFERSON (MEMORIAL ED. 1903) P. 37. 

FN7  6 THE WRITINGS OF THOMAS JEFFERSON (MEMORIAL ED. 1903) PP. 391
392. 

FN8  GELLHORN, AMERICAN RIGHTS (1960), IN COMMENTING ON DENNIS V.
UNITED STATES, 341 U.S. 494, AND YATES V. UNITED STATES, 354 U.S. 298,
STATES: 

"THE AFTERMATH OF THE YATES CASE IS INTERESTING.  BY THE END OF 1956
CONVICTIONS OF COMMUNIST LEADERS UNDER THE SMITH ACT HAD NUMBERED 114. 
MANY OF THESE CASES WERE STILL PENDING IN THE APPELLATE COURTS WHEN THE
YATES DECISION WAS ANNOUNCED IN JUNE OF 1957.  ON ONE GROUND OR
ANOTHER, CONVICTIONS WERE SET ASIDE AND NEW TRIALS WERE GRANTED TO MANY
OF THESE DEFENDANTS.  THE DEPARTMENT OF JUSTICE ITSELF DROPPED THE
PROSECUTION OF A CONSIDERABLE NUMBER, ON THE GROUND THAT THEY COULD NOT
PROPERLY BE CONVICTED ON THE BASIS OF THE EVIDENCE NOW AVAILABLE.  MOST
SIGNIFICANTLY OF ALL, THE CASES AGAINST THE NINE REMAINING DEFENDANTS
IN YATES, AS TO WHOM THE SUPREME COURT HAD REFUSED TO DISMISS THE
CHARGES, WERE ABANDONED BY THE PROSECUTION BECAUSE THERE WAS
INSUFFICIENT EVIDENCE THAT THEY HAD ADVOCATED ACTION AS DISTINCT FROM
OPINION.  AFTER ALL THE CLAMOR, AFTER ALL THE EXPRESSED ALARM ABOUT THE
PERIL INTO WHICH THE UNITED STATES WAS BEING PLUNGED BY THIS HANDFUL OF
MISGUIDED FANATICS, THE PROSECUTION FELT ITSELF UNABLE TO SHOW
PERSUASIVELY THAT THE COMMUNIST SPOKESMEN HAD ENGAGED IN THE FORBIDDEN
INCITEMENTS TO ILLEGALITY. 

"THIS SHOULD STIMULATE A SOBER SECOND LOOK AT THE SURFACE ATTRACTIONS
OF PROGRAMS OF SUPPRESSION AND COERCION.  OCCASIONALLY THE SUPPORTERS
OF THESE PROGRAMS ARE SCOUNDRELS WHO FALSELY PARADE THEMSELVES AS
UPHOLDERS OF DEMOCRACY; BUT MORE OFTEN THEY ARE GOOD AND SINCERE MEN. 
MEN GENUINELY DEVOTED TO WORTHY ENDS SOMETIMES ENDORSE EFFORTS TO FORCE
UNANIMITY OF SENTIMENT, NOT BECAUSE THEY CONSCIOUSLY ESPOUSE
AUTHORITARIANISM, BUT BECAUSE THEY HOPE THUS TO ASSURE MAXIMUM SUPPORT
FOR THE NATION AND ITS PEOPLE.  NO MATTER HOW WELL INTENTIONED THEY MAY
BE, HOWEVER, THOSE EFFORTS THEMSELVES CREATE A GRAVER DANGER THAN THEY
OVERCOME.  THE PERILS SOUGHT TO BE SUPPRESSED ARE REGULARLY
OVERESTIMATED.  HISTORY SHOWS IN ONE EXAMPLE AFTER ANOTHER HOW
EXCESSIVE HAVE BEEN THE FEARS OF EARLIER GENERATIONS, WHO SHUDDERED AT
MENACES THAT, WITH THE BENEFIT OF HINDSIGHT, WE NOW KNOW WERE MERE
SHADOWS.  THIS IN ITSELF SHOULD INDUCE THE MODERN GENERATION TO VIEW
WITH PRUDENT SKEPTICISM THE RECURRENT ALARMS ABOUT THE FATAL
POTENTIALITIES OF DISSENT.  IN ANY EVENT, IN A WORLD TORN BETWEEN THE
MERITS OF FREEDOM AND THE BLANDISHMENTS OF TOTALITARIAN POWER, THE
LOVERS OF FREEDOM CANNOT AFFORD TO SACRIFICE THEIR MORAL SUPERIORITY BY
ADOPTING TOTALITARIAN METHODS IN ORDER TO CREATE A SELF-DELUDING SENSE
OF SECURITY.  SUPPRESSION, ONCE ACCEPTED AS A WAY OF LIFE, IS LIKELY TO
SPREAD.  IT REINFORCES THE HERD URGE TOWARD ORTHODOXIES OF ALL KINDS -
RELIGIOUS, ECONOMIC, AND MORAL AS WELL AS POLITICAL."  PP. 82-83. 

APPENDIX TO OPINION OF MR. JUSTICE

              DOUGLAS. 

THE CONSTITUTIONS OF 15 STATES HAVE, AT ONE TIME OR ANOTHER, MADE
SPECIFIC PROVISION FOR THE RIGHT OF REVOLUTION BY RESERVING TO THE
PEOPLE THE RIGHT TO "ALTER, REFORM OR ABOLISH" THE EXISTING FRAME OF
GOVERNMENT.  SEE PENNSYLVANIA CONST. OF 1873, ART. I, SEC. 2; MARYLAND
CONST. OF 1867, DEC. OF RIGHTS, ART. I; VIRGINIA CONST. OF 1902, ART.
I, SEC. 3; ALABAMA CONST. OF 1865, ART. I, SEC. 2; ARKANSAS CONST. OF
1874, ART. II, SEC. 1; IDAHO CONST. OF 1889, ART. I, SEC. 2; KANSAS
CONST. OF 1858, ART. I, SEC. 2; KENTUCKY CONST. OF 1890, BILL OF
RIGHTS, SEC. 4; OHIO CONST. OF 1851, ART. I, SEC. 2; OREGON CONST. OF
1857, ART. I, SEC. 1; TENNESSEE CONST. OF 1870, ART. I, SEC. 1; TEXAS
CONST. OF 1876, ART. I, SEC. 2; VERMONT CONST. OF 1793, C. 1, ART. 7;
WEST VIRGINIA CONST. OF 1872, ART. 3, SEC. 3; WYOMING CONST.  OF 1889,
ART. I, SEC. 1.  SOME 24 OTHER STATES HAVE, OR HAVE HAD, SLIGHTLY
VARYING FORMS OF THE SAME PROVISION.  SEE NEW HAMPSHIRE CONST., PT. I,
ART. 10; MASSACHUSETTS CONST., PART THE FIRST, ARTICLE VII; CONNECTICUT
CONST., ARTICLE FIRST, SEC. 2; NEW JERSEY CONST., ART. I, PARA. 2;
DELAWARE CONST., PREAMBLE; NORTH CAROLINA CONST., ART. I, SEC. 3; SOUTH
CAROLINA CONST., ART. I, SEC. 1; RHODE ISLAND CONST., ART. I, SEC. 1;
CALIFORNIA CONST., ART. I, SEC. 2; COLORADO CONST., ART. II, SEC. 2;
FLORIDA CONST., DEC. OF RIGHTS, SEC. 2; INDIANA CONST., ART. I, SEC. 1;
IOWA CONST., ART. I, SEC. 2; MAINE CONST., ART. I, SEC. 2; MICHIGAN
CONST. OF 1835, ART. I, SEC. 2; MINNESOTA CONST., ART. I, SEC. 1;
MISSISSIPPI CONST., ART. 3, SEC. 6; MISSOURI CONST., ART. I, SEC. 3;
MONTANA CONST., ART. III, SEC. 2; NEVADA CONST., ART. I, SEC. 2; NORTH
DAKOTA CONST., ART. I, SEC. 2; OKLAHOMA CONST., ART. II, SEC. 1; SOUTH
DAKOTA CONST., ART. VI, SEC. 26; UTAH CONST., ART. I, SEC. 2.  THE
OLDER CONSTITUTIONS OFTEN ADD A CLAUSE WHICH SHOWS THE ROOTS OF THESE
PROVISIONS IN THE RIGHT OF REVOLUTION.  "THE DOCTRINE OF NON-RESISTANCE
AGAINST ARBITRARY POWER AND OPPRESSION IS ABSURD, SLAVISH, AND
DESTRUCTIVE OF THE GOOD AND HAPPINESS OF MANKIND," THE NEW HAMPSHIRE
CONST., PT. I, ART. 10, RECITES.  THE SAME LANGUAGE MAY BE FOUND IN
MARYLAND CONST., DEC. OF RIGHTS, ART. 6; TENNESSEE CONST., ART. I, SEC.
2. 

THESE PROVISIONS HAVE BEEN CONSIDERED BY SEVERAL STATE COURTS.  IT
HAS BEEN HELD THAT THE GENERAL RIGHT OF THE PEOPLE TO ALTER OR ABOLISH
THE GOVERNMENT DOES NOT DEPRIVE STATE COURTS FROM PASSING ON THE
VALIDITY OF CONSTITUTIONAL AMENDMENTS PEACEFULLY PASSED.  WELLS V.
BAIN, 75 PA. ST. 39, 46-49; KOEHLER & LANGE V. HILL, 60 IOWA 543, 614
617, 15 N.W.  614-616; BENNETT V. JACKSON, 186 IND. 533, 538-541, 116
N.E. 921, 922-923; ERWIN V. NOLAN, 280 MO. 401, 406-407, 217 S.W. 837,
838-839.  MORE RECENTLY, SEVERAL STATE COURTS HAVE HAD OCCASION TO
CONSIDER THESE PROVISIONS IN CONNECTION WITH THE PERSECUTION OF
COMMUNISTS.  SEE COMMONWEALTH V. WIDOVICH, 295 PA. 311, 317-318, 145 A.
295, 297-298 (STATE SEDITION ACT); NELSON V. WYMAN, 99 N.H. 33, 50-51,
105 A.2D 756, 770-771 (LEGISLATIVE INVESTIGATION); BRAVERMAN V. BAR
ASSN. OF BALTO., 209 MD. 328, 346-347, 121 A.2D 473, 481-482
(DISBARMENT OF A LAWYER CONVICTED UNDER THE SMITH ACT).  THE LAST TWO
OF THESE DECISIONS RELIED ON LANGUAGE IN THE DECISION OF THIS COURT IN
DENNIS V. UNITED STATES, 341 U.S. 494, 501:  "WHATEVER THEORETICAL
MERIT THERE MAY BE TO THE ARGUMENT THAT THERE IS A 'RIGHT' TO REBELLION
AGAINST DICTATORIAL GOVERNMENTS IS WITHOUT FORCE WHERE THE EXISTING
STRUCTURE OF THE GOVERNMENT PROVIDES FOR PEACEFUL AND ORDERLY CHANGE." 

YET THE RIGHT OF REVOLUTION HAS ALWAYS MEANT MORE THAN THIS.  "THE
WORDS  ...  ," SAID THE COURT IN WELLS V. BAIN, SUPRA, 47, "EMBRACE BUT
THREE KNOWN RECOGNISED MODES BY WHICH THE WHOLE PEOPLE, THE STATE, CAN
GIVE THEIR CONSENT TO AN ALTERATION OF AN EXISTING LAWFUL FRAME OF
GOVERNMENT, VIZ.: 

"1.  THE MODE PROVIDED IN THE EXISTING CONSTITUTION. 

"2.  A LAW, AS THE INSTRUMENTAL PROCESS OF RAISING THE BODY FOR
REVISION AND CONVEYING TO IT THE POWERS OF THE PEOPLE. 

"3.  A REVOLUTION. 

"THE FIRST TWO ARE PEACEFUL MEANS THROUGH WHICH THE CONSENT OF THE
PEOPLE TO ALTERATION IS OBTAINED, AND BY WHICH THE EXISTING GOVERNMENT
CONSENTS TO BE DISPLACED WITHOUT REVOLUTION.  THE GOVERNMENT GIVES ITS
CONSENT, EITHER BY PURSUING THE MODE PROVIDED IN THE CONSTITUTION, OR
BY PASSING A LAW TO CALL A CONVENTION.  IF CONSENT BE NOT SO GIVEN BY
THE EXISTING GOVERNMENT THE REMEDY OF THE PEOPLE IS IN THE THIRD MODE -
REVOLUTION." 

THIS DOES NOT MEAN THE HELPLESSNESS OF THE ESTABLISHED GOVERNMENT IN
THE FACE OF ARMED RESISTANCE, FOR THAT GOVERNMENT HAS THE DUTY OF
MAINTAINING EXISTING INSTITUTIONS.  WELLS V. BAIN, SUPRA, 49.  BUT IT
DOES MEAN THAT THE RIGHT OF REVOLUTION IS ULTIMATELY RESERVED TO THE
PEOPLE THEMSELVES, WHATEVER FORMAL, BUT USELESS, REMEDIES THE EXISTING
GOVERNMENT MAY OFFER.  THIS IS SHOWN IN THE HISTORY OF OUR OWN
REVOLUTION.  LEGISLATURES AND GOVERNMENTS HAVE THE RIGHT TO PROTECT
THEMSELVES.  THEY MAY JUDGE AS TO THE APPROPRIATE MEANS OF MEETING
FORCE DIRECTED AGAINST THEM, BUT AS TO THE PROPRIETY OF THE EXERCISE OF
THE ULTIMATE RIGHT OF REVOLUTION, THERE, AS JOHN LOCKE SAYS, "THE
PEOPLE SHALL BE JUDGE."  SECOND TREATISE ON CIVIL GOVERNMENT, SEC.
240.  TO FORBID THE TEACHING OF THE PROPRIETY OF REVOLUTION, EVEN WHERE
THE TEACHER BELIEVES HIS OWN LESSON, IS TO HINDER THE PEOPLE IN THE
FREE EXERCISE OF THIS GREAT SOVEREIGN RIGHT.  SEE DENNIS V. UNITED
STATES, 341 U.S. 494, 581-586 (DISSENTING OPINION). 

LINCOLN'S FULL STATEMENT, MADE IN 1848 AND ALREADY REFERRED TO,
READS: 

"ANY PEOPLE ANYWHERE, BEING INCLINED AND HAVING THE POWER, HAVE THE
RIGHT TO RISE UP, AND SHAKE OFF THE EXISTING GOVERNMENT, AND FORM A NEW
ONE THAT SUITS THEM BETTER.  THIS IS A MOST VALUABLE, - A MOST SACRED
RIGHT - A RIGHT, WHICH WE HOPE AND BELIEVE, IS TO LIBERATE THE WORLD. 
NOR IS THIS RIGHT CONFINED TO CASES IN WHICH THE WHOLE PEOPLE OF AN
EXISTING GOVERNMENT, MAY CHOOSE TO EXERCISE IT.  ANY PORTION OF SUCH
PEOPLE THAT CAN, MAY REVOLUTIONIZE, AND MAKE THEIR OWN, OF SO MUCH OF
THE TERRITORY AS THEY INHABIT.  MORE THAN THIS, A MAJORITY OF ANY
PORTION OF SUCH PEOPLE MAY REVOLUTIONIZE, PUTTING DOWN A MINORITY,
INTERMINGLED WITH, OR NEAR ABOUT THEM, WHO MAY OPPOSE THEIR MOVEMENT. 
SUCH MINORITY, WAS PRECISELY THE CASE, OF THE TORIES OF OUR OWN
REVOLUTION.  IT IS A QUALITY OF REVOLUTIONS NOT TO GO BY OLD LINES, OR
OLD LAWS; BUT TO BREAK UP BOTH, AND MAKE NEW ONES."  I BASLER, THE
COLLECTED WORKS OF ABRAHAM LINCOLN (1953), PP. 438-439. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

I THINK THAT IN SEC. 4(F) OF THE INTERNAL SECURITY ACT CONGRESS
LEGISLATED IMMUNITY FROM PROSECUTION UNDER THE MEMBERSHIP CLAUSE OF THE
SMITH ACT.  THE FIRST SENTENCE OF SEC. 4(F) IS: "NEITHER THE HOLDING OF
OFFICE NOR MEMBERSHIP IN ANY COMMUNIST ORGANIZATION BY ANY PERSON SHALL
CONSTITUTE PER SE A VIOLATION OF SUBSECTION (A) OR SUBSECTION (C) OF
THIS SECTION OR OF ANY OTHER CRIMINAL STATUTE."  THE IMMUNITY GRANTED
BY THAT SENTENCE IS NOT IN MY VIEW RESTRICTED, AS THE COURT HOLDS, TO
MERE MEMBERSHIP, THAT IS TO MEMBERSHIP WHICH IS NOMINAL, PASSIVE OR
THEORETICAL.  THE IMMUNITY ALSO EXTENDS TO "ACTIVE AND PURPOSIVE
MEMBERSHIP, PURPOSIVE THAT IS AS TO THE ORGANIZATION'S CRIMINAL ENDS,"
WHICH IS THE CHARACTER OF MEMBERSHIP TO WHICH THE COURT TODAY RESTRICTS
THE APPLICATION OF THE MEMBERSHIP CLAUSE OF THE SMITH ACT. 

IN ITS APPROACH TO THE RELATION OF THE FIRST SENTENCE OF SEC. 4(F) TO
THE MEMBERSHIP CLAUSE OF THE SMITH ACT, I THINK THE COURT ASKS THE
WRONG QUESTION.  THE QUESTION IS NOT WHETHER THE CONGRESS MEANT IN SEC.
4(F) TO "REPEAL" THE MEMBERSHIP CLAUSE OF THE SMITH ACT.  THE "REPEAL"
OF A STATUTE CONNOTES ITS ERASURE FROM THE STATUTE BOOKS.  THE GRANT OF
IMMUNITY FROM PROSECUTION UNDER A CRIMINAL STATUTE MERELY SUSPENDS
PROSECUTION UNDER THE STATUTE SO LONG AS THE IMMUNITY IS NOT
WITHDRAWN.  FOR EXAMPLE, WHEN WE RECENTLY DECIDED IN REINA V. UNITED
STATES, 364 U.S. 507, THAT THE NARCOTIC CONTROL ACT OF 1956 LEGISLATED
IMMUNITY FROM PROSECUTION UNDER STATE, AS WELL AS FEDERAL, NARCOTICS
LAWS, OUR DECISION DID NOT REMOTELY SUGGEST THAT THE IMMUNITY EFFECTED
THE "REPEAL" OF EITHER THE STATE OR THE FEDERAL CRIMINAL STATUTES. 

THE CONGRESS WAS FACED WITH A DILEMMA IN LEGISLATING THE POLICY OF
COMPULSORY REGISTRATION OF COMMUNISTS INTO THE INTERNAL SECURITY ACT. 
THIS STATUTE REPRESENTED, IN THE WORDS OF THE LATE JOHN W. DAVIS, A
POLICY OF "VENTILATION RATHER THAN PROHIBITION."  COMMUNISTS WERE TO BE
FORCED TO EXPOSE THEMSELVES TO PUBLIC VIEW IN ORDER THAT THE MENACE
THEY PRESENT MIGHT BE DEALT WITH MORE EFFECTIVELY.  THE REGISTRATION
PROVISIONS OF THE ACT ARE THE VERY VITALS OF THAT MEASURE.  BUT
COMPULSORY DISCLOSURE OF MEMBERSHIP WOULD COMPEL ADMISSION OF A CRIME,
OR PROVIDE A LINK TO PROOF OF A CRIME.  COMMUNISTS THEN COULD INVOKE
THEIR CONSTITUTIONAL RIGHT TO SILENCE AND THE REGISTRATION PROVISIONS
WOULD BE WRECKED ON THE ROCK OF THE SELF-INCRIMINATION CLAUSE OF THE
FIFTH AMENDMENT.  IT IS NO DISPARAGEMENT OF THE CONGRESS TO SAY THAT
THEIR DELIBERATIONS REFLECT GREAT UNCERTAINTY HOW TO RESOLVE THE
DILEMMA.  CONGRESS WROTE THE INTERNAL SECURITY ACT KNOWING THAT THE
PRIVILEGE AGAINST SELF-INCRIMINATION WAS A SOLID BARRIER AGAINST
COMPULSORY SELF-INCRIMINATION BY CONGRESSIONAL FIAT.  THE LEGISLATIVE
HISTORY OF SEC. 4(F) IS MURKY BUT I THINK THERE CLEARLY EMERGES A
CONGRESSIONAL DECISION TO EXTEND IMMUNITY FROM PROSECUTION FOR ANY
MEMBERSHIP IN A COMMUNIST ORGANIZATION IN ORDER TO SAFEGUARD AGAINST
CONSTITUTIONAL FRUSTRATION THE POLICY OF DISCLOSURE EMBODIED IN THE
REGISTRATION PROVISIONS.  (FN1) 

THE PURPOSE OF THE FIRST SENTENCE OF SEC. 4(F) SEEMS CLEAR IN THE
SETTING OF THE ACT.  IN SEC. 2 CONGRESS DESCRIBES THE COMMUNIST PARTY
AS A GROUP BENT ON OVERTHROWING THE GOVERNMENT BY FORCE AND VIOLENCE,
SUCH AS IS DESCRIBED IN THE SMITH ACT, AND ESTABLISHING A TOTALITARIAN
DICTATORSHIP IN THE UNITED STATES.  SECTION 4(A) MAKES IT A CRIME TO
CONSPIRE TO THAT END.  SECTIONS 7 AND 8 PROVIDE FOR COMPULSORY
REGISTRATION OF COMMUNIST ORGANIZATIONS AND MEMBERS.  PENALTIES FOR NOT
REGISTERING ARE IMPOSED.  IF MEMBERS WERE REQUIRED TO REGISTER UNDER
THE 1950 ACT AND IF MEMBERSHIP WERE A CRIME UNDER THE 1940 ACT, THEN
SELF-INCRIMINATION IN VIOLATION OF THE FIFTH AMENDMENT MIGHT BE
REQUIRED BY THE REGISTRATION REQUIREMENTS OF THE 1950 ACT.  PLAINLY IT
WAS WITH THAT PROBLEM THAT CONGRESS DEALT IN SEC. 4(F).    THE BILLS
INTRODUCED IN THE EIGHTY-FIRST CONGRESS (FN2) PROVIDED FOR COMPULSORY
REGISTRATION OF MEMBERS OF THE COMMUNIST PARTY, BUT AFFORDED NO
IMMUNITY FOR REGISTERING.  WHEN THE HOUSE COMMITTEE REPORTED OUT ITS
BILL, (FN3) A PROVISION WAS INCLUDED WHICH FORBADE RECEIPT IN EVIDENCE
OF THE FACT OF REGISTRATION UNDER THE INTERNAL SECURITY ACT.  WHEN THE
BILL REACHED THE FLOOR, CONGRESSMAN CELLER POINTED OUT THAT THE
IMMUNITY PROVISION WAS CONSTITUTIONALLY INSUFFICIENT.  IN THE FIRST
PLACE, THAT BILL ONLY PROVIDED THAT THE FACT OF REGISTRATION UNDER THE
ACT SHOULD NOT BE RECEIVED IN EVIDENCE AGAINST THE REGISTRANT IN
PROSECUTIONS UNDER THE ACT.  CONGRESSMAN CELLER POINTED OUT THAT THERE
WERE OTHER CRIMINAL STATUTES, INCLUDING THE SMITH ACT, FOR WHICH NO
IMMUNITY WAS GRANTED.  (FN4)  HE SECONDLY POINTED OUT THAT THE IMMUNITY
TO BE CONSTITUTIONALLY PROTECTIVE MUST BE COMPLETE; AND HE DISCUSSED
COUNSELMAN V. HITCHCOCK, 142 U.S. 547, IN SUPPORT OF THAT THESIS. 
(FN5)  DURING THESE DEBATES AND IN RESPONSE TO THE CHALLENGE MADE BY
CONGRESSMAN CELLER, THE MANAGER OF THE BILL, CONGRESSMAN WOOD, OFFERED
AN AMENDMENT EXTENDING THE SAME PROTECTION AGAINST PROSECUTIONS "FOR
ANY ALLEGED VIOLATION OF ANY OTHER CRIMINAL STATUTE."  (FN6)  IT WAS
ADOPTED WITHOUT DISCUSSION AND THE BILL PASSED THE HOUSE. 

AT THAT JUNCTURE IT SEEMS OBVIOUS THAT RESTRICTING THE IMMUNITY TO
USE OF THE FACT OF REGISTRATION IN ANY CRIMINAL PROSECUTION DID NOT
SATISFY THE CONSTITUTIONAL REQUIREMENTS.  SUCH A LIMITED IMMUNITY WAS
GRANTED BY STATUTE IN COUNSELMAN V. HITCHCOCK, SUPRA.  YET AS THE COURT
STATED IN THAT CASE, P. 564: 

"THIS, OF COURSE, PROTECTED HIM AGAINST THE USE OF HIS TESTIMONY
AGAINST HIM OR HIS PROPERTY IN ANY PROSECUTION AGAINST HIM OR HIS
PROPERTY, IN ANY CRIMINAL PROCEEDING, IN A COURT OF THE UNITED STATES. 
BUT IT HAD ONLY THAT EFFECT.  IT COULD NOT, AND WOULD NOT, PREVENT THE
USE OF HIS TESTIMONY TO SEARCH OUT OTHER TESTIMONY TO BE USED IN
EVIDENCE AGAINST HIM OR HIS PROPERTY, IN A CRIMINAL PROCEEDING IN SUCH
COURT.  IT COULD NOT PREVENT THE OBTAINING AND THE USE OF WITNESSES AND
EVIDENCE WHICH SHOULD BE ATTRIBUTABLE DIRECTLY TO THE TESTIMONY HE
MIGHT GIVE UNDER COMPULSION, AND ON WHICH HE MIGHT BE CONVICTED, WHEN
OTHERWISE, AND IF HE HAD REFUSED TO ANSWER, HE COULD NOT POSSIBLY HAVE
BEEN CONVICTED." 

MEANWHILE THE SENATE BILL (FN7) WAS REPORTED OUT.  THE LATE JOHN W.
DAVIS HAD STATED IN A LETTER TO THE SENATE COMMITTEE (FN8) THAT
COMPULSORY REGISTRATION MIGHT MAKE A MEMBER "INVOLUNTARILY INCRIMINATE
HIMSELF."  THE SENATE BILL ACCORDINGLY PROVIDED THAT NEITHER HOLDING
OFFICE NOR MEMBERSHIP IN THE COMMUNIST PARTY SHOULD CONSTITUTE A
VIOLATION OF CERTAIN PROVISIONS OF THE BILL; AND IT ALSO PROVIDED THAT
THE FACT OF REGISTRATION SHOULD NOT BE RECEIVED IN EVIDENCE AGAINST THE
REGISTRANT IN PROSECUTIONS UNDER THOSE PROVISIONS.  SENATOR KILGORE IN
A MINORITY REPORT (FN9) MADE THE SAME POINT THAT CONGRESSMAN CELLER HAD
MADE IN THE HOUSE - THAT THIS IMMUNITY PROVISION DID NOT EVEN PURPORT
TO AVOID SELF-INCRIMINATION IN RELATION TO THE MEMBERSHIP CLAUSE OF THE
SMITH ACT AND DID NOT PROVIDE THAT COMPLETE IMMUNITY WHICH COUNSELMAN
V. HITCHCOCK, SUPRA, HELD ESSENTIAL. 

SENATOR LEHMAN SPOKE TO THE SAME EFFECT WHEN THE BILL REACHED THE
FLOOR:  (FN10) 

"'IN SUPPORT OF THE STATEMENT MADE BY THE SENATOR FROM ILLINOIS THAT
THE REAL COMMUNISTS WOULD SIMPLY FAIL TO REGISTER, AND COULD NOT BE
FORCED TO REGISTER, AND WOULD BE OUTSIDE THE CONTROL OF THE LAW
ENFORCEMENT OFFICIALS, IS IT NOT A FACT THAT THERE WOULD BE EVERY
REASON WHY A REAL COMMUNIST SHOULD NOT REGISTER - BECAUSE IF HE DID
REGISTER, WOULD NOT HE MAKE HIMSELF LIABLE TO INCRIMINATION UNDER THE
SMITH ACT?" 

"MR. DOUGLAS.  'CERTAINLY.' 

"MR. LEHMAN.  'SO HE WOULD BE VIRTUALLY PLEADING GUILTY OF A PENAL
OFFENSE; WOULD HE NOT?' 

"MR. DOUGLAS.  'YES; THE REAL LEADERS WOULD BE.'" 

SENATOR LEHMAN STATED ON ANOTHER DAY OF THE DEBATE:  (FN11) 

"WHAT DYED-IN-THE-WOOL COMMUNIST WILL RUN TO THE NEAREST REGISTRATION
OFFICE TO LIST HIMSELF AS SUCH AND EXPOSE HIMSELF TO THE PENALTIES
CONTAINED IN THE MUNDT-FERGUSON BILL?  OBVIOUSLY, IF HE DID, HE WOULD
LOSE ALL HIS EFFECTIVENESS AS A COMMUNIST, BESIDES SUBJECTING HIMSELF
TO THE PENALTIES SET FORTH IN THIS BILL.  HE WOULD ALSO EXPOSE HIMSELF
TO THE PENALTIES SET FORTH IN OTHER LAWS, SUCH AS THE SMITH ACT, UNDER
WHICH THE 11 TOP COMMUNIST LEADERS WERE RECENTLY CONVICTED.  IN FACT,
REGISTRATION WOULD CONSTITUTE SELF-INCRIMINATION, IF NOT UNDER THE
TERMS OF THIS LAW, THEN UNDER THE TERMS OF THE SMITH ACT.  OBVIOUSLY,
THE COMMUNISTS WOULD NOT REGISTER." 

SENATOR HUMPHREY VOICED THE SAME OBJECTION:  (FN12) 

"  ...  HIS REGISTRATION WOULD BE EQUIVALENT TO TESTIMONY; AND UNDER
THE INTERPRETATION OF VERY PROMINENT ATTORNEYS, (FN13) IT COULD BE THAT
HE COULD BE PROSECUTED UNDER THE SMITH ACT." 

THE ANSWERS TO THESE OBJECTIONS WERE WIDE OF THE MARK.  SENATOR
MCCARRAN SAID THAT THE REGISTRANT WAS IMMUNIZED FROM PROSECUTIONS UNDER
SEC. 4 OF THE BILL.  (FN14)  THE RELEVANCY OF THE SMITH ACT WAS NOT
RECOGNIZED.  SENATOR FERGUSON AND SENATOR MUNDT LIKEWISE DID NOT MEET
THE POINT.  THEY NOTED (FN15) THAT MEMBERSHIP WAS HELD IRRELEVANT TO
THE SMITH ACT IN THE PROSECUTION OF DENNIS V. UNITED STATES, SUPRA,
OVERLOOKING THE FACT THAT THAT CASE INVOLVED NOT MEMBERSHIP BUT A
CONSPIRACY TO PRACTICE THE COMMUNIST DOGMA. 

BUT NO CHANGE IN THE BILL WAS MADE IN THIS RESPECT BEFORE IT PASSED
THE SENATE.  THE IMPORTANT CHANGES IN SEC. 4(F) - THE ONES THAT ARE
CRITICAL HERE - TOOK PLACE IN CONFERENCES.  (FN16)  NO CONTEMPORARY
STATEMENT OF THE INTENDED SWEEP OF THE REVISED SEC. 4(F) IS IN THE
LEGISLATIVE RECORD.  BUT I HAVE SET OUT ENOUGH HISTORY TO INDICATE THAT
THE MOTIVATION WAS CLEARLY THE FEAR THAT THE IMMUNITY GRANTED UNDER THE
EARLIER VERSIONS OF THE BILL WAS NOT CONSTITUTIONALLY SUFFICIENT TO
COMPEL REGISTRATION, SINCE IT DID NOT EXTEND TO PROSECUTIONS UNDER THE
MEMBERSHIP CLAUSE OF THE SMITH ACT. 

WHEN THE BILL CAME BACK FROM THE CONFERENCE COMMITTEE CONGRESSMAN
MULTER REFERRED TO SEC. 4(F) IN ITS NEW FORM AND PREDICTED IT WOULD
"VITIATE ONE OF THE MOST IMPORTANT PARTS OF THE SMITH LAW."  (FN17)  NO
REPLY WAS MADE TO HIS COMMENTS.  AND ONLY BRIEF REFERENCE WAS MADE TO
SEC. 4(F) IN THE SENATE.  SENATOR KEFAUVER SAID, (FN18) "THERE IS
NOTHING IN THE BILL WHICH PROVIDES THAT WHEN A PERSON REGISTERS THAT
FACT SHALL NOT BE USED IN EVIDENCE AGAINST HIM IN CONNECTION WITH THE
SMITH ACT."  (FN19)  BUT THAT STATEMENT IS IRRELEVANT TO OUR PROBLEM
BECAUSE THE SENATOR APPARENTLY DID NOT REALIZE THAT THE BILL HAD BEEN
AMENDED IN CONFERENCE TO INCLUDE THE WORDS "OR ANY OTHER CRIMINAL
STATUTE."  SENATOR KILGORE STATED THAT THE CONFERENCE BILL DIFFERED
FROM THE ONE APPROVED BY THE JUDICIARY COMMITTEE OVER HIS DISSENT,
SINCE IT NULLIFIED THE SMITH ACT.  (FN20)  NO ONE CHALLENGED THE
STATEMENT. 

FROM THIS LEGISLATIVE HISTORY IT SEEMS TOLERABLY CLEAR THAT ONE
PURPOSE OF SEC. 4(F) WAS TO PROTECT REGISTRANTS FROM PROSECUTION UNDER
THE MEMBERSHIP CLAUSE OF THE SMITH ACT. 

THE COURT HOLDS, HOWEVER, THAT THE FIRST SENTENCE OF SEC. 4(F) IS
SIMPLY "A MANDATE TO THE COURTS CHARGED WITH THE CONSTRUCTION OF
SUBSECTIONS (A) AND (C) 'OR  ...  ANY OTHER CRIMINAL STATUTE' THAT
NEITHER THOSE TWO NAMED CRIMINAL PROVISIONS NOR ANY OTHER SHALL BE
CONSTRUED SO AS TO MAKE 'MEMBERSHIP  ...  PER SE A VIOLATION.'"  IF THE
PHRASEOLOGY WERE THAT IMMUNITY IS EXTENDED ONLY TO "MEMBERSHIP PER SE,"
THERE MIGHT BE SUPPORT FOR THE ARGUMENT THAT THE IMMUNITY GRANTED BY
SEC. 4(F) EXTENDS ONLY TO NOMINAL MEMBERSHIP, EXCLUDING THE TYPE OF
ACTIVE MEMBERSHIP WHICH WE HAVE HERE.  BUT THE STATUTE DOES NOT SAY
"MEMBERSHIP PER SE."  IT PROVIDES THAT "NEITHER THE HOLDING OF OFFICE
NOR MEMBERSHIP IN ANY COMMUNIST ORGANIZATION SHALL CONSTITUTE PER SE A
VIOLATION OF SUBSECTION (A) OR SUBSECTION (C) OF THIS SECTION OR OF ANY
OTHER CRIMINAL STATUTE."  THE KIND OF MEMBERSHIP GIVEN IMMUNITY IS NOT
RESTRICTED.  IT MAY BE NOMINAL, SHORT-TERM, LONG-TERM, DUES-PAYING, NON
DUES-PAYING, INACTIVE, OR ACTIVE MEMBERSHIP.  EVERY TYPE OF MEMBERSHIP
IS INCLUDED.  WHAT THE CONGRESS IS SAYING IS THAT NO TYPE OF MEMBERSHIP
SHALL VIOLATE ALONE OR BY ITSELF (THAT IS TO SAY, PER SE) ANY CRIMINAL
STATUTE.  WHEN CONGRESS SAID THAT MEMBERSHIP "SHALL NOT CONSTITUTE PER
SE" A VIOLATION OF ANY CRIMINAL STATUTE, IT MEANT THAT ADDITIONAL
CONDUCT BESIDES MEMBERSHIP, WHATEVER ITS NATURE, IS NECESSARY TO
CONSTITUTE A VIOLATION.  ONLY BY TRANSPOSING PER SE IN SEC. 4(F) AND
MAKING IT MODIFY "MEMBERSHIP" CAN THE COURT'S ARGUMENT BE MADE
PLAUSIBLE.  THAT ENTAILS A SUBSTANTIAL REVISION OF THE ACT AND A
DRASTIC DILUTION OF RIGHTS OF IMMUNITY WHICH HAVE BEEN GRANTED BY IT. 

IF THE COURT IS CORRECT IN ITS VIEW, THE CONSTITUTIONALITY OF
REGISTRATION PROVISIONS OF THE 1950 ACT ARE CALLED INTO QUESTION. 
TRUE, TODAY'S DECISION IN COMMUNIST PARTY OF AMERICA V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, ANTE, P. 1, PUTS OFF TO ANOTHER DAY THE
CONSTITUTIONALITY OF THE REGISTRATION PROVISIONS IN THEIR CONFLICT WITH
THE FIFTH AMENDMENT; I HAVE NOTED MY DISSENT AS TO THE PROVISION OF THE
REGISTRATION REQUIREMENTS THAT DESIGNATED OFFICIALS OF THE PARTY MUST
COMPLETE, SIGN, AND FILE THE PARTY'S REGISTRATION STATEMENT.  BUT IF
"ACTIVE MEMBERSHIP" REMAINS A CRIME UNDER THE SMITH ACT, THERE WOULD BE
A SERIOUS QUESTION WHETHER ANY COMMUNIST - ACTIVE OR NOMINAL - COULD
CONSTITUTIONALLY BE COMPELLED TO REGISTER UNDER THE 1950 ACT.  FOR IT
COULD BE URGED THAT THE ACT OF REGISTERING WOULD SUPPLY ONE LINK THAT
MIGHT COMPLETE THE CHAIN OF EVIDENCE AGAINST HIM UNDER THE SMITH ACT. 
IT IS NO ANSWER TO THAT CONTENTION THAT MERE MEMBERSHIP WOULD NOT
SUPPORT A CONVICTION.  AS WE SAID IN BLAU V. UNITED STATES, 340 U.S.
159, 161: 

"WHETHER SUCH ADMISSIONS BY THEMSELVES WOULD SUPPORT A CONVICTION
UNDER A CRIMINAL STATUTE IS IMMATERIAL.  ANSWERS TO THE QUESTIONS ASKED
BY THE GRAND JURY WOULD HAVE FURNISHED A LINK IN THE CHAIN OF EVIDENCE
NEEDED IN A PROSECUTION OF PETITIONER FOR VIOLATION OF (OR CONSPIRACY
TO VIOLATE) THE SMITH ACT.  PRIOR DECISIONS OF THIS COURT HAVE CLEARLY
ESTABLISHED THAT UNDER SUCH CIRCUMSTANCES, THE CONSTITUTION GIVES A
WITNESS THE PRIVILEGE OF REMAINING SILENT.  THE ATTEMPT BY THE COURTS
BELOW TO COMPEL PETITIONER TO TESTIFY RUNS COUNTER TO THE FIFTH
AMENDMENT AS IT HAS BEEN INTERPRETED FROM THE BEGINNING." 

THIS PRINCIPLE HAD BEEN AN ESTABLISHED ONE EVER SINCE COUNSELMAN V.
HITCHCOCK, SUPRA, WAS DECIDED. 

THE REGISTRATION PROVISIONS OF THE 1950 ACT WERE THE VERY HEART OF
THAT LAW.  DISCLOSURE OF WHO THE COMMUNISTS WERE WAS THE PROVISION FROM
WHICH ALL OTHER CONTROLS STEMMED.  AS THE SENATE REPORT STATED, (FN21)
THE REGISTRATION REQUIREMENT IS THE "CENTRAL PROVISION" OF THE ACT, THE
PURPOSE BEING "(A) TO EXPOSE THE COMMUNIST MOVEMENT AND PROTECT THE
PUBLIC AGAINST INNOCENT AND UNWITTING COLLABORATION WITH IT; (B) TO
EXPOSE, AND PROTECT THE PUBLIC AGAINST, CERTAIN ACTS WHICH ARE DECLARED
UNLAWFUL." 

A FAIR AND LITERAL READING OF SEC. 4(F) CAN SAVE THE 1950 ACT AGAINST
THIS FIFTH AMENDMENT OBJECTION.  BY READING SEC. 4(F) TO PROVIDE THAT
BEING A MEMBER OF THE COMMUNIST PARTY SHALL NOT "CONSTITUTE PER SE" A
CRIME, IMMUNITY FROM PROSECUTION UNDER THE MEMBERSHIP CLAUSE OF THE
SMITH ACT IS EFFECTED.  AND THAT IS IN FULL HARMONY WITH THE PURPOSE TO
MAKE SOMETHING MORE THAN "MEMBERSHIP" NECESSARY FOR CONVICTION.  THAT
SOMETHING MORE CAN BE SOME KIND OF UNLAWFUL ACTIVITY.  AFTER THE 1950
ACT WAS PASSED, MEMBERSHIP WITHOUT OTHER ACTIVITY WAS NO LONGER
SUFFICIENT FOR SMITH ACT PROSECUTIONS.  THAT SEEMS TO ME TO BE THE ONLY
FAIR WAY TO READ SEC. 4(F).  THAT CONCLUSION NECESSARILY REQUIRES A
DISMISSAL OF THIS INDICTMENT. 

FN1  SENATOR MCCARRAN, THE FLOOR MANAGER OF THE BILL IN THE SENATE,
SPOKE OF THE EXPOSURE OF COMMUNISTS AS ONE OF THE "PRINCIPAL
OBJECTIVES" OF THE BILL.  96 CONG. REC.  14174. 

THE OTHER PRINCIPAL OBJECTIVE WAS THE DEFINITION OF CERTAIN CONDUCT
AS CRIMINAL, IT BEING THE SENSE OF CONGRESS THAT EXISTING PROVISIONS TO
PRESERVE THE SECURITY OF THE NATION WERE INADEQUATE (H.R. REP. NO.
2980, 81ST CONG., 2D SESS., P. 2; S. REP. NO. 1358, 81ST CONG., 2D
SESS., P. 7; 96 CONG. REC. 14174-14175) AND NOT EFFECTIVE TO COMBAT THE
THREAT OF SUBVERSION FROM WITHIN.  THE CRIMINAL PROVISIONS OF THE
INTERNAL SECURITY ACT ARE BROAD AND COMPREHENSIVE.  SECTION 4(A)
PROHIBITS CONSPIRACY TO PERFORM ANY ACT WHICH WOULD SUBSTANTIALLY
CONTRIBUTE TO THE ESTABLISHMENT OF A TOTALITARIAN DICTATORSHIP UNDER
THE DIRECTION AND CONTROL OF A FOREIGN POWER.  SECTION 4(B) MAKES IT
UNLAWFUL FOR A GOVERNMENT EMPLOYEE WITHOUT AUTHORIZATION TO COMMUNICATE
CLASSIFIED INFORMATION TO ANYONE WHOM HE BELIEVES TO BE A
REPRESENTATIVE OF A FOREIGN GOVERNMENT OR MEMBER OF A COMMUNIST
ORGANIZATION, AND SEC. 4(C) PROHIBITS THE RECEIPT OF SUCH INFORMATION. 
BROADCASTING ON ANY RADIO OR TELEVISION STATION WITHOUT DESIGNATING, BY
PRINTING ON THE ENVELOPE OR ANNOUNCEMENT AS THE CASE MAY BE, THAT IT IS
"A COMMUNIST ORGANIZATION."  A MEMBER OF A COMMUNIST ORGANIZATION WHICH
IS REGISTERED OR ORDERED TO REGISTER BY THE SUBVERSIVE ACTIVITIES
CONTROL BOARD, WHO HAS KNOWLEDGE OR NOTICE OF SUCH REGISTRATION OR
ORDER, CANNOT FAIL TO DISCLOSE HIS MEMBERSHIP WHEN HE IS SEEKING OR
ACCEPTING EMPLOYMENT BY THE UNITED STATES OR AT ANY DEFENSE FACILITY. 
IT IS ALSO UNLAWFUL FOR SUCH A PERSON TO HOLD EMPLOYMENT UNDER THE
UNITED STATES, OR IN ANY DEFENSE FACILITY IF HE IS A MEMBER OF A
COMMUNIST-ACTION ORGANIZATION.  SEC. 5(A).  SUCH A PERSON CANNOT APPLY
FOR OR USE A PASSPORT.  SEC. 6(A).  THE ACT ALSO MODIFIED SEVERAL
EXISTING STATUTES DEALING WITH SUBVERSIVES AND ESPIONAGE IN ORDER TO
EXPAND THEIR COVERAGE.  THESE EXTENSIVE CRIMINAL PROVISIONS BELIE THE
THOUGHT THAT CONGRESS REGARDED THE SMITH ACT AS THE MAIN GUN IN THE
ARSENAL OF ANTISUBVERSIVE WEAPONS.  THE MANY ALLUSIONS TO THE FACT THAT
COMMUNISTS WERE BEING MORE COVERT IN THEIR ACTIVITIES SO AS TO AVOID
COMING WITHIN THE PROVISIONS OF THE SMITH ACT MAKE IT CLEAR THAT THAT
ACT WAS NOT TO BE OF MAJOR IMPORTANCE IN THE CAMPAIGN AGAINST DOMESTIC
COMMUNISTS.    FN2  S. 2311, 81ST CONG., 2D SESS.; H.R. 9490, 81ST
CONG., 2D SESS. 

FN3  H.R. 9490, 81ST CONG., 2D SESS.; SEE H.R. REP. NO. 2980, 81ST
CONG., 2D SESS., P. 8. 

FN4  96 CONG. REC. 13739. 

FN5  ID., 13740.    FN6  ID., 13761. 

FN7  S. 4037, 81ST CONG., 2D SESS. 

FN8  S. REP. NO. 1358, 81ST CONG., 1ST SESS., PP. 43-44. 

FN9  S. REP. NO. 2369, PT. 2, 81ST CONG., 2D SESS., PP. 12-13. 

FN10  96 CONG. REC. 14421. 

FN11  ID., 14190. 

FN12  ID., 14500. 

FN13  THIS REFERENCE APPARENTLY WAS TO CHARLES EVANS HUGHES, JR. AND
JOHN W. DAVIS.  ID., 14500.  THE STATEMENT OF MR. DAVIS IS REFERRED TO
IN NOTE 8, SUPRA.  THAT OF MR. HUGHES CAN BE FOUND IN HEARINGS ON H.R.
5852, SENATE COMMITTEE ON THE JUDICIARY, 80TH CONG., 2D SESS. 415-420. 

FN14  "IN THE OPINION OF THE CHAIRMAN OF THE COMMITTEE ON THE
JUDICIARY, THIS PROVISION LEANS OVER BACKWARD TO PROTECT COMMUNISTS
AGAINST SELF-INCRIMINATION; BUT IT IS ONE OF THE MANY SAFEGUARDS
WRITTEN INTO THE BILL BY THE JUDICIARY COMMITTEE TO ASSURE THE COMPLETE
CONSTITUTIONALITY OF THE MEASURE."  ID., 14175.  SEE ALSO ID., 14443. 

FN15  "MR. LONG.  I WAS UNDER THE IMPRESSION, FROM HEARING THE
SENATOR FROM NEW YORK (SEN. LEHMAN) YESTERDAY, THAT HE SAID THAT UNDER
A PREVIOUS STATUTE IT WAS UNLAWFUL TO BELONG TO AN ORGANIZATION THAT
ADVOCATED THE OVERTHROW OF THE UNITED STATES GOVERNMENT BY FORCE  ...
. 

     *         *         *         *         * 

"MR. FERGUSON.  IS IT NOT TRUE THAT JUDGE MEDINA, IN HIS CHARGE TO
THE JURY IN THE TRIAL OF THE 11 COMMUNISTS, TOLD THEM THAT MERE
MEMBERSHIP IN THE COMMUNIST PARTY WAS NOT SUFFICIENT TO WARRANT THE
JURY IN CONVICTING THEM UNDER THE SMITH ACT? 

"MR. MUNDT.  PRECISELY. 

"MR. FERGUSON.  SO THAT IT COULD NOT APPLY TO THAT LAW. 

"MR. MUNDT.  IT COULD NOT CONCEIVABLY APPLY.  EVEN IF THE IMPRESSION
WHICH THE JUNIOR SENATOR FROM LOUISIANA HAD WERE CORRECT, IT WOULD
STILL BE AN INCORRECT INTERPRETATION OF THE ACT."  ID., 14235. 

FN16  H.R. CONF. REP. NO. 3112, 81ST CONG., 2D SESS., P. 49. 

FN17  96 CONG. REC. 15289. 

FN18  ID., 15198. 

FN19  IBID. 

FN20  ID., 15192. 

FN21 S. REP. NO. 2369, 81ST CONG., 2D SESS., P. 4. 
..END :





NOTO V. UNITED STATES 367 U.S. 290 


NO. 9.  ARGUED OCTOBER 10-11, 1960 - DECIDED JUNE 5, 1961 - 262 F.2D
501, REVERSED. 


PETITIONER WAS CONVICTED OF VIOLATING THE SO-CALLED MEMBERSHIP CLAUSE
OF THE SMITH ACT, WHICH MAKES A FELONY THE ACQUISITION OR HOLDING OF
MEMBERSHIP IN ANY ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE, KNOWING THE
PURPOSE THEREOF.  HELD:  THE JUDGMENT IS REVERSED, BECAUSE THE EVIDENCE
WAS INSUFFICIENT TO PROVE THAT THE COMMUNIST PARTY PRESENTLY ADVOCATED
FORCIBLE OVERTHROW OF THE GOVERNMENT, NOT AS AN ABSTRACT DOCTRINE, BUT
BY THE USE OF LANGUAGE REASONABLY AND ORDINARILY CALCULATED TO INCITE
PERSONS TO ACTION, IMMEDIATELY OR IN THE FUTURE.  PP. 291-300. 

(A)  IN ORDER TO SUPPORT A CONVICTION UNDER THE MEMBERSHIP CLAUSE OF
THE SMITH ACT, THERE MUST BE SOME SUBSTANTIAL DIRECT OR CIRCUMSTANTIAL
EVIDENCE OF A CALL TO VIOLENCE NOW OR IN THE FUTURE WHICH IS BOTH
SUFFICIENTLY STRONG AND SUFFICIENTLY PERVASIVE TO LEND COLOR TO THE
OTHERWISE AMBIGUOUS THEORETICAL MATERIAL REGARDING COMMUNIST PARTY
TEACHING AND TO JUSTIFY THE INFERENCE THAT SUCH A CALL TO VIOLENCE MAY
FAIRLY BE IMPUTED TO THE PARTY AS A WHOLE, AND NOT MERELY TO SOME
NARROW SEGMENT OF IT.  P. 298. 

(B)  IT IS PRESENT ADVOCACY, NOT AN INTENT TO ADVOCATE IN THE FUTURE
OR A CONSPIRACY TO ADVOCATE IN THE FUTURE, WHICH IS AN ELEMENT OF THE
CRIME UNDER THE MEMBERSHIP CLAUSE OF THE SMITH ACT.  P. 298. 

(C)  A DEFENDANT MUST BE JUDGED UPON THE EVIDENCE IN HIS OWN TRIAL,
AND NOT UPON THE EVIDENCE IN SOME OTHER TRIAL OR UPON WHICH MAY BE
SUPPOSED TO BE THE TENETS OF THE COMMUNIST PARTY.  P. 299. 

NOTO V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE NO. 1, SCALES V. UNITED STATES, ANTE, P. 203, WAS
BROUGHT HERE TO TEST THE VALIDITY OF A CONVICTION UNDER THE MEMBERSHIP
CLAUSE OF THE SMITH ACT.  361 U.S. 813.  THE CASE COMES TO US FROM THE
COURT OF APPEALS FOR THE SECOND CIRCUIT WHICH AFFIRMED PETITIONER'S
CONVICTION IN THE DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK,
AFTER A JURY TRIAL.  262 F.2D 501. 

THE ONLY ONE OF PETITIONER'S POINTS WE NEED CONSIDER IS HIS ATTACK ON
THE SUFFICIENCY OF THE EVIDENCE, SINCE HIS STATUTORY AND CONSTITUTIONAL
CHALLENGES TO THE CONVICTION ARE DISPOSED OF BY OUR OPINION IN SCALES;
AND CONSIDERATION OF HIS OTHER CONTENTIONS IS RENDERED UNNECESSARY BY
THE VIEW WE TAKE OF HIS EVIDENTIARY CHALLENGE. 

IN CONSIDERING THAT CHALLENGE WE START FROM THE PREMISE THAT SMITH
ACT OFFENSES REQUIRE RIGOROUS STANDARDS OF PROOF.  SCALES, ANTE, P.
230.  WE FIND THAT THE RECORD IN THIS CASE, WHICH WAS TRIED BEFORE OUR
OPINION ISSUED IN YATES V. UNITED STATES, 354 U.S. 298, BEARS MUCH OF
THE INFIRMITY THAT WE FOUND IN THE YATES RECORD, AND REQUIRES US TO
CONCLUDE THAT THE EVIDENCE OF ILLEGAL PARTY ADVOCACY WAS INSUFFICIENT
TO SUPPORT THIS CONVICTION. 

A LARGE PART OF THE EVIDENCE ADDUCED BY THE GOVERNMENT ON THAT ISSUE
CAME FROM THE WITNESS LAUTNER, AND THE READING OF COPIOUS EXCERPTS FROM
THE "COMMUNIST CLASSICS."  THIS EVIDENCE, TO BE SURE, PLENTIFULLY SHOWS
THE PARTY'S TEACHING OF ABSTRACT DOCTRINE THAT REVOLUTION IS AN
INEVITABLE PRODUCT OF THE "PROLETARIAN" EFFORT TO ACHIEVE COMMUNISM IN
A CAPITALIST SOCIETY, BUT TESTIMONY AS TO HAPPENINGS WHICH MIGHT HAVE
LENT THAT EVIDENCE TO AN INFERENCE OF "ADVOCACY OF ACTION" TO
ACCOMPLISH THAT END DURING THE PERIOD OF THE INDICTMENT, 1946-1954, OR
ITSELF SUPPORTED SUCH AN INFERENCE, IS SPARSE INDEED.  MOREOVER, SUCH
TESTIMONY AS THERE IS OF THAT NATURE WAS NOT BROADLY BASED, BUT WAS
LIMITED ALMOST EXCLUSIVELY TO PARTY DOINGS IN WESTERN NEW YORK, MORE
ESPECIALLY IN THE CITIES OF ROCHESTER AND BUFFALO, THE SCENE OF
PETITIONER'S PRINCIPAL PARTY ACTIVITIES.  FURTHER, THE SHOWING OF
ILLEGAL PARTY ADVOCACY LACKED THE COMPELLING QUALITY WHICH IN SCALES,
ANTE, P. 203, WAS SUPPLIED BY THE PETITIONER'S OWN UTTERANCES AND
SYSTEMATIC COURSE OF CONDUCT AS A HIGH PARTY OFFICIAL.  WE PROCEED TO A
SUMMARY OF THIS TESTIMONY. 

THE WITNESS DIETCH DESCRIBED MAINLY EPISODES FROM HIS INDOCTRINATION
AS A MEMBER OF THE ROCHESTER YOUNG COMMUNIST LEAGUE DURING THE YEARS
1935-1938.  IN THAT TIME HE KNEW PETITIONER, WITH WHOM HE HAD GONE TO
HIGH SCHOOL, AND TESTIFIED THAT PETITIONER, THEN A YOUTH, WAS AN ACTIVE
AND CONVINCED MEMBER OF THE LEAGUE.  APART FROM THOSE EARLY YEARS,
DIETCH'S TESTIMONY AS TO THE PARTY AND THE PETITIONER REFERRED TO ONE
OTHER POSSIBLY RELEVANT EPISODE, WHEN, IN 1951, HE OBTAINED FOR THE
PARTY AT PETITIONER'S REQUEST TWO PIECES OF SPECIAL PRINTING EQUIPMENT
FOR WHICH PETITIONER PAID $100 AND $200.  HOWEVER, THIS EPISODE IS
DEPRIVED OF SIGNIFICANCE WHEN IT APPEARS FROM THE WITNESS' TESTIMONY
THAT PETITIONER EXPLAINED TO HIM AT THE TIME THAT PRESSURE BROUGHT TO
BEAR ON THE PARTY HAD MADE IT DIFFICULT FOR IT TO GET ITS PRINTING DONE
BY CONVENTIONAL COMMERCIAL MEANS. 

THE WITNESS GERALDINE HICKS HAD JOINED THE PARTY IN 1943 AT THE
REQUEST OF THE F.B.I. AND CONTINUED TO BE INVOLVED WITH IT UNTIL 1953. 
SHE KNEW PETITIONER IN CONNECTION WITH HIS WORK AS CHAIRMAN OF THE ERIE
COUNTY COMMUNIST PARTY FROM 1946 UNTIL 1950.  HER TESTIMONY RELATED TO
CLASSES AND MEETINGS WHICH SHE ATTENDED IN THE BUFFALO AREA, WHERE THE
"COMMUNIST CLASSICS" WERE USED FOR TEACHING PURPOSES.  EXTENSIVE
PASSAGES FROM THESE WORKS WERE READ INTO EVIDENCE.  SHE ALSO TESTIFIED
AS TO THE IMPORTANCE ATTRIBUTED BY THE LOCAL PARTY TO ITS "INDUSTRIAL
CONCENTRATION" WORK AND TO ITS RECRUITMENT OF WORKERS IN THOSE
INDUSTRIES AS WELL AS TO THE IMPORTANCE ATTRIBUTED TO THE RECRUITMENT
OF NEGROES. 

THE WITNESS CHATLEY, WHO WAS A BUS DRIVER DURING THE PERIOD OF HIS
COMMUNIST PARTY MEMBERSHIP FROM 1949 ONWARDS, TESTIFIED TO HIS CONTACTS
WITH PETITIONER AND OTHER PARTY MEMBERS IN THE BUFFALO AREA.   HE
TESTIFIED TO PARTY TEACHINGS AS TO THE IMPORTANCE OF RECEIVING SOLID
SUPPORT FROM THE LABOR UNIONS.  HE WAS GIVEN VARIOUS ITEMS OF
LITERATURE SUCH AS THE HISTORY OF THE RUSSIAN REVOLUTION AND THE
PROLETARIAN REVOLUTION AND THE RENEGADE KAUTSKY, WHICH LATTER DEALT
WITH AN EARLY COMMUNIST WHO HAD BEEN SINGLED OUT FOR CONDEMNATION
BECAUSE OF HIS VIEWS THAT COMMUNISM COULD BE ACHIEVED ULTIMATELY BY
PEACEFUL MEANS.  HE WAS TOLD BY PETITIONER THAT "IF I WOULD RE-READ THE
BOOKS, MOST OF MY QUESTIONS WOULD BE ANSWERED.  HE SAID IF THERE WERE
ANY POINTS I DID NOT UNDERSTAND HE WOULD BE HAPPY TO CLEAR THEM UP AT A
LATER VISIT."  PERHAPS THE MOST SIGNIFICANT ITEM OF CHATLEY'S TESTIMONY
DEALT WITH AN INTERVIEW WITH PETITIONER, AT WHICH CHATLEY WAS REQUESTED
TO HIDE OUT A PARTY MEMBER WHO WAS FLEEING THE F.B.I. IN CONNECTION
WITH "WHAT THE NEWSPAPERS CALLED THIS ATOM SPY RING BUSINESS."  SO FAR
AS THE RECORD REVEALS, THE PLANS NEVER PROGRESSED BEYOND THIS REQUEST. 
THE PETITIONER HAD ALSO TOLD CHATLEY THAT THE FEDERAL GOVERNMENT WAS
BUILDING CONCENTRATION CAMPS: 

"  ...  HE SAID THEY ARE NOT BUILDING THEM FOR ORNAMENTAL PURPOSES. 
HE SAID 'THEY ARE GOING TO FILL THEM WITH OUR PEOPLE, STARTING WITH THE
LEADERS.'  ...  HE SAID THAT HE EXPECTED WHEN THEY WERE READY HE WOULD
BE ONE OF THE FIRST PEOPLE TO GO.  HE SAID THE FEDERAL GOVERNMENT WOULD
CONTINUE WITH THESE CAMPS AND FILL THEM WITH A LOT OF PEOPLE, BUT THE
TIME WOULD COME WHEN THERE WOULD BE A SHOW-DOWN, WORKING PEOPLE WILL
STAND JUST SO MUCH.  IT MIGHT TAKE SEVERAL YEARS, IT WILL RESULT IN BAD
TIMES, BUT IN THE END IT WILL RESULT IN A TURN IN THE COUNTRY TO
MARXISM AND LENINISM.  HE SAID THEN HIS PART MIGHT BE IN IT, HE WAS
WILLING TO SUFFER ANYTHING TO BRING IT TO THAT GLORIOUS END." 

CERTAINLY THE MOST DAMAGING TESTIMONY CAME FROM THE WITNESS REGAN,
WHO AS A GOVERNMENT AGENT AND PARTY MEMBER FROM 1947 IN THE BUFFALO
ROCHESTER AREA GATHERED CONSIDERABLE INFORMATION ON THE PARTY'S
"INDUSTRIAL CONCENTRATION" PROGRAM IN THAT AREA.  REGAN, AT THE REQUEST
OF PETITIONER, ATTENDED A PARTY MEETING IN NEW YORK CITY ON CREATING A
PARTY COMMISSION IN THE UNITED AUTO WORKERS.   THE CONFERENCE CONCERNED
THE PENETRATION OF THE UNITED AUTO WORKERS, AND PLANS WERE MADE FOR
GETTING PEOPLE INTO VARIOUS SHOPS IN AUTOMOBILE PLANTS IN THE STATE,
WHO COULD LATER ASSUME POSITIONS OF LEADERSHIP IN THE UNION.  AT A
LATER DATE PETITIONER ALSO DISCUSSED THE PENETRATION OF AN AUTOMOBILE
PLANT IN THE AREA BY PARTY MEMBERS SENT UP FROM NEW YORK CITY.  REGAN
ALSO RECEIVED A PAMPHLET, BUT NOT FROM THE PETITIONER, DEALING WITH THE
CONCENTRATION PROGRAM IN THE STEEL INDUSTRY.   THE PAMPHLET STATED AT
ONE POINT: 

"1.  THREE BASIC INDUSTRIES, STEEL, RAILROAD, AND MINING.  THESE ARE
BASIS TO THE NATIONAL ECONOMY, THAT IS IF ANY ONE OR ALL THREE ARE SHUT
DOWN BY STRIKE OUR ECONOMY IS PARALYZED.  IT IS NECESSARY FOR A MARXIST
REVOLUTIONARY PARTY TO BE ROOTED IN THESE INDUSTRIES." 

IN 1949 REGAN ATTENDED A CONFERENCE IN ROCHESTER AT WHICH THE
PETITIONER SPOKE:  "HE DISCUSSED CONCENTRATION WORK, AND HE SAID THE
TASK OF THE PARTY WAS TO BUILD THE PARTY WITHIN THE SHOP IN BUFFALO
...  HE SPECIFICALLY MENTIONED BOTH STEEL AND WESTINGHOUSE ELECTRIC." 
ANOTHER SPEAKER SAID THAT "STEEL INDUSTRY WAS A BASIC INDUSTRY, BY
BASIC INDUSTRY HE SAID THE ENTIRE SECTION OF INDUSTRY WITHIN THE
COUNTRY DEPENDED ON STEEL."  REGAN ALSO ATTENDED A CONFERENCE IN NEW
YORK CITY AT WHICH PETITIONER SPOKE: 

"  ...  HE SAID A LENIN METHOD OF WORK WITHIN THE SHOP WAS TO DECIDE
UPON THE PARTICULAR DEPENDENT WITHIN THE SHOP, THAT THE SHOP AS A RULE
DEPENDED UPON, TO SUSPEND PRODUCTION, IT WAS THE JOB OF EVERY COMMUNIST
TO KNOW THE PEOPLE, EXECUTIVES AND PRODUCT OF THE COMPANY, IF POSSIBLE
TO DIRECT HIS ATTENTION ON THE KEY DEPARTMENT, BETTER STILL, TO GET A
JOB IN THE KEY DEPARTMENT." 

SEVERAL OTHER PASSAGES IN REGAN'S TESTIMONY SHOULD BE ADVERTED TO FOR
THEIR BEARING ON THE TONE OF THE RECORD BEFORE US.  SPEAKING OF THE WAR
IN KOREA, REGAN TESTIFIED THAT THE PETITIONER HAD SAID AT THE
CONFERENCE OF THE UPSTATE DISTRICT OF THE PARTY IN 1950: 

"  ...  THE WAR  ...  WAS CAUSED BY AN AGGRESSIVE ACTION OF THE
UNITED STATES, AMERICAN TROOPS WOULD FOLLOW WALL STREET POLICY.  HE
SAID IT IS POSSIBLE FOR THIS TO BREAK OUT IN OTHER PARTS OF THE WORLD. 
HE MENTIONED THE NEAR EAST. 

"Q.  IS THAT ALL? 

"A.  YES." 

NO EFFORT WAS MADE TO LINK UP THIS CONFERENCE WITH PARTICULARLY
TRUSTED PARTY MEMBERS, BUT IT DOES APPEAR THAT IT WAS AT THIS
CONFERENCE THAT PLANS WERE LAID FOR BUILDING A COMMUNIST PARTY CLUB "ON
THE RAILROAD." 

REGAN ALSO TESTIFIED TO A REMARK MADE AT ANOTHER PARTY CONFERENCE BY
A LECTURER THAT A "SOCIAL DEMOCRAT WAS AN EVOLUTIONIST WHO WAITED FOR
SOCIALISM WHERE THE COMMUNIST PARTY WOULD ACHIEVE SOCIALISM THROUGH
REVOLUTIONS."  AT THIS SAME MEETING THE LECTURER RECOUNTED AN INCIDENT
THAT HAD OCCURRED AT A CLASS SHE HAD ONCE TAUGHT IN NEW ROCHELLE, NEW
YORK, AT AN UNSPECIFIED TIME: 

"  ...  SHE SAID A PERSON AT THIS CLASS, THEY WERE DISCUSSING THE
SOVIET UNION, ASKED HER WOULD IT BE POSSIBLE FOR HIM TO OWN TWENTY
PAIRS OF SHOES IN THE SOVIET UNION.  SHE MADE THE STATEMENT HE WAS THE
KIND OF A GUY THEY HOPED TO SHOOT SOME DAY." 

THE WITNESS RECALLED A SIMILAR INTEMPERATE REMARK BY THE PETITIONER
DURING A MEETING IN 1947: 

"LUMPKIN (A PARTY MEMBER) WAS TALKING ABOUT A VISIT TO HIS HOME BY A
LOCAL NEWSPAPER REPORTER.  HE SAID THE REPORTER CAME TO HIS HOME.  THEY
LET HIM IN AND ANSWERED A LOT OF QUESTIONS  ... ." 

"JOHN NOTO SAID LUMPKIN SHOULD NEVER LET THE REPORTER INTO THE
HOUSE.  SHOULD NOT HAVE ANSWERED ANY QUESTIONS.  HE SAID 'SOMETIME I
WILL SEE THE TIME WE CAN STAND A PERSON LIKE THIS S.O.B. AGAINST THE
WALL AND SHOOT HIM.'" 

THE WITNESS GREENBERG TESTIFIED LARGELY ABOUT THE PARTY PROGRAM IN
THE UPSTATE AREA AS TO SETTING UP PRINTING AND MIMEOGRAPHING EQUIPMENT
IN CASE COMMERCIAL CHANNELS WERE CUT OFF OR THE PARTY WAS FORCED
UNDERGROUND; AND THREE OTHER WITNESSES TESTIFIED BRIEFLY TO THE EFFECT
THAT THEY HAD KNOWN PETITIONER WHEN HE HAD MOVED TO NEWARK, NEW JERSEY,
AND OBTAINED A JOB UNDER AN ASSUMED NAME AS A HELPER OR STOCKKEEPER IN
THE GOODYEAR RUBBER PRODUCTS CORPORATION FACTORY, IN CONNECTION WITH
WHICH HE USED A FALSE SOCIAL SECURITY NUMBER. 

FINALLY, THERE WAS TESTIMONY THROUGH THE WITNESS LAUTNER AS TO THE
PARTY'S UNDERGROUND ORGANIZATION IN NORTHERN NEW YORK, INCLUDING
PETITIONER'S PARTICIPATION THEREIN AS ONE OF THE THREE PARTY MEMBERS IN
CHARGE. 

WE MUST CONSIDER THIS EVIDENCE IN THE LIGHT MOST FAVORABLE TO THE
GOVERNMENT TO SEE WHETHER IT WOULD SUPPORT THE CONCLUSION THAT THE
PARTY ENGAGED IN THE ADVOCACY "NOT OF  ...  MERE ABSTRACT DOCTRINE OF
FORCIBLE OVERTHROW, BUT OF ACTION TO THAT END, BY THE USE OF LANGUAGE
REASONABLY AND ORDINARILY CALCULATED TO INCITE PERSONS TO  ... ACTION"
IMMEDIATELY OR IN THE FUTURE.  YATES V. UNITED STATES, SUPRA, AT 316. 
IN THAT CASE WE SAID: 

"  ...  THE ESSENCE OF THE DENNIS HOLDING WAS THAT INDOCTRINATION OF
A GROUP IN PREPARATION FOR FUTURE VIOLENT ACTION, AS WELL AS
EXHORTATION TO IMMEDIATE ACTION, BY ADVOCACY FOUND TO BE DIRECTED TO
'ACTION FOR THE ACCOMPLISHMENT' OF FORCIBLE OVERTHROW, TO VIOLENCE AS
'A RULE OR PRINCIPLE OF ACTION,' AND EMPLOYING 'LANGUAGE OF INCITEMENT'
...  IS NOT CONSTITUTIONALLY PROTECTED  ...  . THIS IS QUITE A
DIFFERENT THING FROM THE VIEW OF THE DISTRICT COURT HERE THAT MERE
DOCTRINAL JUSTIFICATION OF FORCIBLE OVERTHROW, IF ENGAGED IN WITH
INTENT TO ACCOMPLISH OVERTHROW, IS PUNISHABLE PER SE UNDER THE SMITH
ACT.  THAT SORT OF ADVOCACY, EVEN THOUGH UTTERED WITH THE HOPE THAT IT
MAY ULTIMATELY LEAD TO VIOLENT REVOLUTION, IS TOO REMOTE FROM CONCRETE
ACTION TO BE REGARDED AS THE KIND OF INDOCTRINATION PREPARATORY TO
ACTION WHICH WAS CONDEMNED IN DENNIS.  AS ONE OF THE CONCURRING
OPINIONS IN DENNIS PUT IT:  'THROUGHOUT OUR DECISIONS THERE HAS
RECURRED A DISTINCTION BETWEEN THE STATEMENT OF AN IDEA WHICH MAY
PROMPT ITS HEARERS TO TAKE UNLAWFUL ACTION, AND ADVOCACY THAT SUCH
ACTION BE TAKEN.'"  ID., AT 321-322. 

THE GREAT BULK OF THE EVIDENCE IN THIS RECORD SEEMS TO US TO COME
WITHIN THE PURVIEW OF THE FIRST OF THE CONTRASTED ALTERNATIVES
ELABORATED IN THE CONCURRING OPINION IN DENNIS V. UNITED STATES, 341
U.S. 494, 545, AND REFERRED TO IN THE PASSAGE JUST QUOTED.  WE HELD IN
YATES, AND WE REITERATE NOW, THAT THE MERE ABSTRACT TEACHING OF
COMMUNIST THEORY, INCLUDING THE TEACHING OF THE MORAL PROPRIETY OR EVEN
MORAL NECESSITY FOR A RESORT TO FORCE AND VIOLENCE, IS NOT THE SAME AS
PREPARING A GROUP FOR VIOLENT ACTION AND STEELING IT TO SUCH ACTION. 
THERE MUST BE SOME SUBSTANTIAL DIRECT OR CIRCUMSTANTIAL EVIDENCE OF A
CALL TO VIOLENCE NOW OR IN THE FUTURE WHICH IS BOTH SUFFICIENTLY STRONG
AND SUFFICIENTLY PERVASIVE TO LEND COLOR TO THE OTHERWISE AMBIGUOUS
THEORETICAL MATERIAL REGARDING COMMUNIST PARTY TEACHING, AND TO JUSTIFY
THE INFERENCE THAT SUCH A CALL TO VIOLENCE MAY FAIRLY BE IMPUTED TO THE
PARTY AS A WHOLE, AND NOT MERELY TO SOME NARROW SEGMENT OF IT. 
SURELY THE OFFHAND REMARKS THAT CERTAIN INDIVIDUALS HOSTILE TO THE
PARTY WOULD ONE DAY BE SHOT CANNOT DEMONSTRATE MORE THAN THE VENOMOUS
OR SPITEFUL ATTITUDE OF THE PARTY TOWARDS ITS ENEMIES, AND MIGHT
INDICATE WHAT COULD BE EXPECTED FROM THE PARTY IF IT SHOULD EVER
SUCCEED TO POWER.  THE "INDUSTRIAL CONCENTRATION" PROGRAM, AS TO WHICH
THE WITNESS REGAN TESTIFIED IN SOME DETAIL, DOES INDEED COME CLOSER TO
THE KIND OF CONCRETE AND PARTICULAR PROGRAM ON WHICH A CRIMINAL
CONVICTION IN THIS SORT OF CASE MUST BE BASED.  BUT IN EXAMINING THAT
EVIDENCE IT APPEARS TO US THAT, IN THE CONTEXT OF THIS RECORD, THIS TOO
FAILS TO ESTABLISH THAT THE COMMUNIST PARTY WAS AN ORGANIZATION WHICH
PRESENTLY ADVOCATED VIOLENT OVERTHROW OF THE GOVERNMENT NOW OR IN THE
FUTURE, FOR THAT IS WHAT MUST BE PROVEN.  THE MOST THAT CAN BE SAID IS
THAT THE EVIDENCE AS TO THAT PROGRAM MIGHT JUSTIFY AN INFERENCE THAT
THE LEADERSHIP OF THE PARTY WAS PREPARING THE WAY FOR A SITUATION IN
WHICH FUTURE ACTS OF SABOTAGE MIGHT BE FACILITATED, BUT THERE IS NO
EVIDENCE THAT SUCH ACTS OF SABOTAGE WERE PRESENTLY ADVOCATED; AND IT IS
PRESENT ADVOCACY, AND NOT AN INTENT TO ADVOCATE IN THE FUTURE OR A
CONSPIRACY TO ADVOCATE IN THE FUTURE ONCE A GROUNDWORK HAS BEEN LAID,
WHICH IS AN ELEMENT OF THE CRIME UNDER THE MEMBERSHIP CLAUSE.  TO
PERMIT AN INFERENCE OF PRESENT ADVOCACY FROM EVIDENCE SHOWING AT BEST
ONLY A PURPOSE OR CONSPIRACY TO ADVOCATE IN THE FUTURE WOULD BE TO
ALLOW THE JURY TO BLUR THE LINES OF DISTINCTION BETWEEN THE VARIOUS
OFFENSES PUNISHABLE UNDER THE SMITH ACT. 

THE KIND OF EVIDENCE WHICH WE FOUND IN SCALES SUFFICIENT TO SUPPORT
THE JURY'S VERDICT OF PRESENT ILLEGAL PARTY ADVOCACY IS LACKING HERE IN
ANY ADEQUATELY SUBSTANTIAL DEGREE.  IT NEED HARDLY BE SAID THAT IT IS
UPON THE PARTICULAR EVIDENCE IN A PARTICULAR RECORD THAT A PARTICULAR
DEFENDANT MUST BE JUDGED, AND NOT UPON THE EVIDENCE IN SOME OTHER
RECORD OR UPON WHAT MAY BE SUPPOSED TO BE THE TENETS OF THE COMMUNIST
PARTY.  SEE YATES, SUPRA, AT 330. 

ALTHOUGH OUR CONCLUSION RENDERS UNNECESSARY CONSIDERATION OF THE
EVIDENCE AS TO PETITIONER'S PERSONAL CRIMINAL PURPOSE TO BRING ABOUT
THE OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE, A FURTHER WORD
MAY BE DESIRABLE.  WHILE EVIDENCE OF THE INDUSTRIAL CONCENTRATION
PROGRAM, IN WHICH PETITIONER WAS ACTIVE, DOES NOT ALONE JUSTIFY AN
INFERENCE OF THE PARTY'S PRESENT ADVOCACY OF VIOLENT OVERTHROW, IT MAY
VERY WELL TEND TO SHOW THE QUITE DIFFERENT ELEMENT OF THE PETITIONER'S
OWN PURPOSE.  EVEN THOUGH IT IS NOT ENOUGH TO SUSTAIN A CONVICTION THAT
THE PARTY HAS ENGAGED IN "MERE DOCTRINAL JUSTIFICATION OF FORCIBLE
OVERTHROW  ...  EVEN WITH THE INTENT TO ACCOMPLISH OVERTHROW," YATES,
SUPRA, AT 321, IT WOULD SEEM THAT SUCH A SHOWING MIGHT BE OF WEIGHT IN
MEETING THE REQUIREMENT THAT THE PARTICULAR DEFENDANT IN A MEMBERSHIP
CLAUSE PROSECUTION HAD THE REQUISITE CRIMINAL INTENT.  BUT IT SHOULD
ALSO BE SAID THAT THIS ELEMENT OF THE MEMBERSHIP CRIME, LIKE ITS
OTHERS, MUST BE JUDGED STRICTISSIMI JURIS, FOR OTHERWISE THERE IS A
DANGER THAT ONE IN SYMPATHY WITH THE LEGITIMATE AIMS OF SUCH AN
ORGANIZATION, BUT NOT SPECIFICALLY INTENDING TO ACCOMPLISH THEM BY
RESORT TO VIOLENCE, MIGHT BE PUNISHED FOR HIS ADHERENCE TO LAWFUL AND
CONSTITUTIONALLY PROTECTED PURPOSES, BECAUSE OF OTHER AND UNPROTECTED
PURPOSES WHICH HE DOES NOT NECESSARILY SHARE. 

IN VIEW OF OUR CONCLUSION AS TO THE INSUFFICIENCY OF THE EVIDENCE AS
TO ILLEGAL PARTY ADVOCACY, THE JUDGMENT OF THE COURT OF APPEALS MUST BE
REVERSED. 

MR. JUSTICE BRENNAN AND THE CHIEF JUSTICE WOULD REMAND TO THE
DISTRICT COURT WITH DIRECTION TO THAT COURT TO DISMISS THE INDICTMENT. 
FOR THE REASONS EXPRESSED IN MR. JUSTICE BRENNAN'S DISSENT IN SCALES V.
UNITED STATES, ANTE, P. 278, THEY BELIEVE THAT THIS PROSECUTION WAS
BARRED BY SEC. 4(F) OF THE INTERNAL SECURITY ACT.  THEY ALSO BELIEVE
THAT THE DISMISSAL IS REQUIRED BECAUSE OF THE INSUFFICIENCY OF THE
EVIDENCE. 

MR. JUSTICE BLACK, CONCURRING. 

IN 1799, THE ENGLISH PARLIAMENT PASSED A LAW OUTLAWING CERTAIN NAMED
SOCIETIES ON THE GROUND THAT THEY WERE ENGAGED IN "A TRAITOROUS
CONSPIRACY  ...  IN CONJUNCTION WITH THE PERSONS FROM TIME TO TIME
EXERCISING THE POWERS OF GOVERNMENT IN FRANCE  ...  ."  (FN1)  ONE OF
THE MANY STRONG ARGUMENTS MADE BY THOSE WHO OPPOSED THE ENACTMENT OF
THIS LAW WAS STATED BY A MEMBER OF THAT BODY, MR. TIERNEY: 

"THE REMEDY PROPOSED GOES TO THE PUTTING AN END TO ALL THESE
SOCIETIES TOGETHER.  I OBJECT TO THE SYSTEM, OF WHICH THIS IS ONLY A
BRANCH; FOR THE RIGHT HON. GENTLEMAN HAS TOLD US HE INTENDS TO PROPOSE
LAWS FROM TIME TO TIME UPON THIS SUBJECT, AS CASES MAY ARISE TO REQUIRE
THEM.  I SAY THESE ATTEMPTS LEAD TO CONSEQUENCES OF THE MOST HORRIBLE
KIND.  I SEE THAT GOVERNMENT ARE ACTING THUS.  THOSE WHOM THEY CANNOT
PROVE TO BE GUILTY, THEY WILL PUNISH FOR THEIR SUSPICION.  TO SUPPORT
THIS SYSTEM, WE MUST HAVE A SWARM OF SPIES AND INFORMERS.  THEY ARE THE
VERY PILLARS OF SUCH A SYSTEM OF GOVERNMENT."  (FN2) 

THE DECISION IN THIS CASE, IN MY JUDGMENT, DRAMATICALLY ILLUSTRATES
THE CONTINUING VITALITY OF THIS OBSERVATION. 

THE CONVICTION OF THE PETITIONER HERE IS BEING REVERSED BECAUSE THE
GOVERNMENT HAS FAILED TO PRODUCE EVIDENCE THE COURT BELIEVES SUFFICIENT
TO PROVE THAT THE COMMUNIST PARTY PRESENTLY ADVOCATES THE OVERTHROW OF
THE GOVERNMENT BY FORCE.  THE GOVERNMENT IS BEING TOLD, IN EFFECT, THAT
IF IT WISHES TO GET CONVICTIONS UNDER THE SMITH ACT, IT MUST MAINTAIN A
PERMANENT STAFF OF INFORMERS WHO ARE PREPARED TO GIVE UP-TO-DATE
INFORMATION WITH RESPECT TO THE PRESENT POLICIES OF THE COMMUNIST
PARTY.  GIVEN THE FACT THAT SUCH PROSECUTIONS ARE TO BE PERMITTED AT
ALL, I DO NOT DISAGREE WITH THE WISDOM OF THE COURT'S DECISION TO
COMPEL THE GOVERNMENT TO COME FORWARD WITH EVIDENCE TO PROVE ITS
CHARGES IN EACH PARTICULAR CASE.  BUT I THINK THAT IT IS ALSO IMPORTANT
TO REALIZE THE OVERRIDING PRE-EMINENCE THAT SUCH A SYSTEM OF LAWS GIVES
TO THE PERPETUATION AND ENCOURAGEMENT OF THE PRACTICE OF INFORMING - A
PRACTICE WHICH, I THINK IT IS FAIR TO SAY, HAS NOT ALWAYS BEEN
CONSIDERED THE SORT OF SYSTEM TO WHICH A WISE GOVERNMENT WOULD ENTRUST
THE SECURITY OF A NATION.  I HAVE ALWAYS THOUGHT, AS I STILL DO THINK,
THAT THIS GOVERNMENT WAS BUILT UPON A FOUNDATION STRONG ENOUGH TO
ASSURE ITS ENDURANCE WITHOUT RESORT TO PRACTICES WHICH MOST OF US THINK
OF AS BEING ASSOCIATED ONLY WITH TOTALITARIAN GOVERNMENTS. 

I CANNOT JOIN AN OPINION WHICH IMPLIES THAT THE EXISTENCE OF LIBERTY
IS DEPENDENT UPON THE EFFICIENCY OF THE GOVERNMENT'S INFORMERS.  I
PREFER TO REST MY CONCURRENCE IN THE JUDGMENT REVERSING PETITIONER'S
CONVICTION ON WHICH I REGARD AS THE MORE SOLID GROUND THAT THE FIRST
AMENDMENT FORBIDS THE GOVERNMENT TO ABRIDGE THE RIGHTS OF FREEDOM OF
SPEECH, PRESS AND ASSEMBLY. 

FN1  39 GEORGE III, C. 79.  FOR A MORE COMPLETE DISCUSSION OF THE
PROVISIONS OF THIS LAW AND THE ARGUMENTS SURROUNDING ITS ENACTMENT, SEE
MY DISSENTING OPINION IN COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES
CONTROL BOARD, DECIDED TODAY, ANTE, P. 1, AT 151-154, 162. 

FN2  SEE PARLIAMENTARY DEBATES, HANSARD, 1ST SERIES, 34, AT 991.  CF.
DEJONGE V. OREGON, 299 U.S. 353, 365:  "THE GREATER THE IMPORTANCE OF
SAFEGUARDING THE COMMUNITY FROM INCITEMENTS TO THE OVERTHROW OF OUR
INSTITUTIONS BY FORCE AND VIOLENCE, THE MORE IMPERATIVE IS THE NEED TO
PRESERVE INVIOLATE THE CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS
AND FREE ASSEMBLY IN ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE
POLITICAL DISCUSSION, TO THE END THAT GOVERNMENT MAY BE RESPONSIVE TO
THE WILL OF THE PEOPLE AND THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY
PEACEFUL MEANS.  THEREIN LIES THE SECURITY OF THE REPUBLIC, THE VERY
FOUNDATION OF CONSTITUTIONAL GOVERNMENT." 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE UTTERANCES, ATTITUDES, AND ASSOCIATIONS IN THIS CASE, LIKE THOSE
IN SCALES V. UNITED STATES, ANTE, P. 203, ARE IN MY VIEW WHOLLY
PROTECTED BY THE FIRST AMENDMENT AND NOT SUBJECT TO INQUIRY,
EXAMINATION, OR PROSECUTION BY THE FEDERAL GOVERNMENT. 

FOR THAT REASON, AS WELL AS FOR THE ONE MENTIONED BY MR. JUSTICE
BRENNAN, I WOULD REMAND THE CASE TO THE DISTRICT COURT WITH DIRECTIONS
TO DISMISS THE INDICTMENT. 
..END :

















MCGOWAN V. MARYLAND 366 U.S. 420 


NO. 8.  ARGUED DECEMBER 8, 1960 - DECIDED MAY 29, 1961 - 220 MD. 117,
151 A.2D 156, AFFIRMED. 


APPELLANTS, EMPLOYEES OF A LARGE DEPARTMENT STORE ON A HIGHWAY IN ANNE
ARUNDEL COUNTY, MD., WERE CONVICTED AND FINED IN A MARYLAND STATE COURT
FOR SELLING ON SUNDAY A LOOSE-LEAF BINDER, A CAN OF FLOOR WAX, A
STAPLER, STAPLES AND A TOY, IN VIOLATION OF MD. ANN. CODE, ART. 27,
SEC. 521, WHICH GENERALLY PROHIBITS THE SALE ON SUNDAY OF ALL
MERCHANDISE EXCEPT THE RETAIL SALE OF TOBACCO PRODUCTS,
CONFECTIONERIES, MILK, BREAD, FRUIT, GASOLINE, OILS, GREASES, DRUGS,
MEDICINES, NEWSPAPERS AND PERIODICALS.  RECENT AMENDMENTS NOW EXCEPT
FROM THE PROHIBITION THE RETAIL SALE IN ANNE ARUNDEL COUNTY OF ALL
FOODSTUFFS, AUTOMOBILE AND BOATING ACCESSORIES, FLOWERS, TOILET GOODS,
HOSPITAL SUPPLIES AND SOUVENIRS, AND EXEMPT ENTIRELY ANY RETAIL
ESTABLISHMENT IN THAT COUNTY WHICH EMPLOYS NOT MORE THAN ONE PERSON
OTHER THAN THE OWNER.  THERE ARE MANY OTHER MARYLAND LAWS WHICH
PROHIBIT SPECIFIC ACTIVITIES ON SUNDAYS OR LIMIT THEM TO CERTAIN HOURS,
PLACES OR CONDITIONS.  HELD:  ART. 27, SEC. 521 DOES NOT VIOLATE THE
EQUAL PROTECTION OR DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OR
CONSTITUTE A LAW RESPECTING AN ESTABLISHMENT OF RELIGION, WITHIN THE
MEANING OF THE FIRST AMENDMENT, WHICH IS MADE APPLICABLE TO THE STATES
BY THE FOURTEENTH AMENDMENT.  PP. 422-453. 

1.  ART. 27, SEC. 521 DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  PP. 425-428. 

(A)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE
CLASSIFICATIONS MADE BY THE STATUTE ARE WITHOUT RATIONAL AND
SUBSTANTIAL RELATION TO THE OBJECTS OF THE LEGISLATION, SO AS TO EXCEED
THE WIDE DISCRETION PERMITTED THE STATES IN ENACTING LAWS WHICH AFFECT
SOME GROUPS OF CITIZENS DIFFERENTLY FROM OTHERS.  PP. 425-427. 

(B)  PROVISIONS OF THE STATUTE WHICH PERMIT ONLY CERTAIN ANNE ARUNDEL
COUNTY RETAILERS TO SELL MERCHANDISE ESSENTIAL TO, OR CUSTOMARILY SOLD
AT, OR INCIDENTAL TO, THE OPERATION OF BATHING BEACHES, AMUSEMENT
PARKS, ETC., DO NOT DISCRIMINATE INVIDIOUSLY AGAINST RETAILERS IN OTHER
MARYLAND COUNTIES.  P. 427. 

(C)  THE EQUAL PROTECTION CLAUSE IS NOT VIOLATED BY ART. 27, SEC.
509, WHICH PERMITS ONLY CERTAIN MERCHANTS IN ANNE ARUNDEL COUNTY
(OPERATORS OF BATHING BEACHES, AMUSEMENT PARKS, ETC.) TO SELL
MERCHANDISE CUSTOMARILY SOLD AT SUCH PLACES WHILE FORBIDDING ITS SALE
BY OTHER VENDORS, SUCH AS APPELLANTS' EMPLOYER.  PP. 427-428. 

2.  ART. 27, SEC. 509, WHICH EXEMPTS RETAIL SALES OF "MERCHANDISE
ESSENTIAL TO, OR CUSTOMARILY SOLD AT, OR INCIDENTAL TO, THE OPERATION
OF" BATHING BEACHES, AMUSEMENT PARKS, ETC., IS NOT SO VAGUE AS TO
VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 428
429. 

3.  ART. 27, SEC. 521 IS NOT A LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, WITHIN THE MEANING OF THE FIRST AMENDMENT.  PP. 429-453. 

(A)  SINCE APPELLANTS ALLEGE ONLY ECONOMIC INJURY TO THEMSELVES AND
DO NOT ALLEGE ANY INFRINGEMENT OF THEIR OWN RELIGIOUS FREEDOMS, THEY
HAVE NO STANDING TO RAISE THE QUESTION WHETHER THE STATUTE PROHIBITS
THE FREE EXERCISE OF RELIGION, CONTRARY TO THE FIRST AMENDMENT.  PP.
429-430. 

(B)  SINCE APPELLANTS HAVE SUFFERED DIRECT ECONOMIC INJURY, ALLEGEDLY
DUE TO THE IMPOSITION ON THEM OF THE TENETS OF THE CHRISTIAN RELIGION,
THEY HAVE STANDING TO COMPLAIN THAT THE STATUTE IS A LAW RESPECTING AN
ESTABLISHMENT OF RELIGION.  PP. 430-431. 

(C)  IN THE LIGHT OF THE EVOLUTION OF OUR SUNDAY CLOSING LAWS THROUGH
THE CENTURIES, AND OF THEIR MORE OR LESS RECENT EMPHASIS UPON SECULAR
CONSIDERATIONS, IT IS CONLCUDED THAT, AS PRESENTLY WRITTEN AND
ADMINISTERED, MOST OF THEM, AT LEAST, ARE OF A SECULAR RATHER THAN OF A
RELIGIOUS CHARACTER, AND THAT PRESENTLY THEY BEAR NO RELATIONSHIP TO
ESTABLISHMENT OF RELIGION, AS THOSE WORDS ARE USED IN THE CONSTITUTION
OF THE UNITED STATES.  PP. 431-444. 

(D)  THE PRESENT PURPOSE AND EFFECT OF MOST OF OUR SUNDAY CLOSING
LAWS IS TO PROVIDE A UNIFORM DAY OF REST FOR ALL CITIZENS; AND THE FACT
THAT THIS DAY IS SUNDAY, A DAY OF PARTICULAR SIGNIFICANCE FOR THE
DOMINANT CHRISTIAN SECTS, DOES NOT BAR THE STATE FROM ACHIEVING ITS
SECULAR GOALS.  PP. 444-445. 

(E)  AFTER ENGAGING IN THE CLOSE SCRUTINY DEMANDED OF IT WHEN FIRST
AMENDMENT LIBERTIES ARE AT ISSUE, THIS COURT ACCEPTS THE DETERMINATION
OF THE STATE SUPREME COURT THAT THE PRESENT PURPOSE AND EFFECT OF THE
STATUTE HERE INVOLVED IS NOT TO AID RELIGION BUT TO SET ASIDE A DAY OF
REST AND RECREATION.  PP. 445-449. 

(F)  THIS COURT REJECTS APPELLANTS' CONTENTION THAT THE STATE HAS
OTHER MEANS AT ITS DISPOSAL TO ACCOMPLISH ITS SECULAR PURPOSE THAT
WOULD NOT EVEN REMOTELY OR INCIDENTALLY GIVE STATE AID TO RELIGION. 
PP. 449-453. 

MCGOWAN ET AL. V. MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE ISSUES IN THIS CASE CONCERN THE CONSTITUTIONAL VALIDITY OF
MARYLAND CRIMINAL STATUTES, (FN1) COMMONLY KNOWN AS SUNDAY CLOSING LAWS
OR SUNDAY BLUE LAWS.  THESE STATUTES, WITH EXCEPTIONS TO BE NOTED
HEREAFTER, GENERALLY PROSCRIBE ALL LABOR, BUSINESS AND OTHER COMMERCIAL
ACTIVITIES ON SUNDAY.  THE QUESTIONS PRESENTED ARE WHETHER THE
CLASSIFICATIONS WITHIN THE STATUTES BRING ABOUT A DENIAL OF EQUAL
PROTECTION OF THE LAW, WHETHER THE LAWS ARE SO VAGUE AS TO FAIL TO GIVE
REASONABLE NOTICE OF THE FORBIDDEN CONDUCT AND THEREFORE VIOLATE DUE
PROCESS, AND WHETHER THE STATUTES ARE LAWS RESPECTING AN ESTABLISHMENT
OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF. 

APPELLANTS ARE SEVEN EMPLOYEES OF A LARGE DISCOUNT DEPARTMENT STORE
LOCATED ON A HIGHWAY IN ANNE ARUNDEL COUNTY, MARYLAND.  THEY WERE
INDICTED FOR THE SUNDAY SALE OF A THREE-RING LOOSE-LEAF BINDER, A CAN
OF FLOOR WAX, A STAPLER AND STAPLES, AND A TOY SUBMARINE IN VIOLATION
OF MD. ANN. CODE, ART. 27, SEC. 521.  GENERALLY, THIS SECTION
PROHIBITED, THROUGHOUT THE STATE, THE SUNDAY SALE OF ALL MERCHANDISE
EXCEPT THE RETAIL SALE OF TOBACCO PRODUCTS, CONFECTIONERIES, MILK,
BREAD, FRUITS, GASOLINE, OILS, GREASES, DRUGS AND MEDICINES, AND
NEWSPAPERS AND PERIODICALS.  RECENTLY AMENDED, THIS SECTION ALSO NOW
EXCEPTS FROM THE GENERAL PROHIBITION THE RETAIL SALE IN ANNE ARUNDEL
COUNTY OF ALL FOODSTUFFS, AUTOMOBILE AND BOATING ACCESSORIES, FLOWERS,
TOILET GOODS, HOSPITAL SUPPLIES AND SOUVENIRS.  IT NOW FURTHER PROVIDES
THAT ANY RETAIL ESTABLISHMENT IN ANNE ARUNDEL COUNTY WHICH DOES NOT
EMPLOY MORE THAN ONE PERSON OTHER THAN THE OWNER MAY OPERATE ON
SUNDAY. 

ALTHOUGH APPELLANTS WERE INDICTED ONLY UNDER SEC. 521, IN ORDER
PROPERLY TO CONSIDER SEVERAL OF THE BROAD CONSTITUTIONAL CONTENTIONS,
WE MUST EXAMINE THE WHOLE BODY OF MARYLAND SUNDAY LAWS.  SEVERAL
EVALUATION OF THE ISSUES PRESENTED.  SECTION 492 OF MD. ANN. CODE, ART.
27, FORBIDS ALL PERSONS FROM DOING ANY WORK OR BODILY LABOR ON SUNDAY
AND FORBIDS PERMITTING CHILDREN OR SERVANTS TO WORK ON THAT DAY OR TO
ENGAGE IN FISHING, HUNTING AND UNLAWFUL PASTIMES OR RECREATIONS.  THE
ANN. CODE, ART. 27, DISALLOWS THE OPENING OR USE OF ANY DANCING SALOON,
OPERA HOUSE, BOWLING ALLEY OR BARBER SHOP ON SUNDAY.  HOWEVER, IN
ADDITION TO THE EXCEPTIONS NOTED ABOVE, MD. ANN. CODE, ART. 27, SEC.
509, EXEMPTS, FOR ANNE ARUNDEL COUNTY, THE SUNDAY OPERATION OF ANY
BATHING BEACH, BATHHOUSE, DANCING SALOON AND AMUSEMENT PARK, AND
ACTIVITIES INCIDENT THERETO AND RETAIL SALES OF MERCHANDISE CUSTOMARILY
SOLD AT, OR INCIDENTAL TO, THE OPERATION OF THE AFORESAID OCCUPATIONS
AND BUSINESSES.  SECTION 90 OF MD. ANN. CODE, ART. 2B, MAKES GENERALLY
UNLAWFUL THE SALE OF ALCOHOLIC BEVERAGES ON SUNDAY.  HOWEVER, THIS
FOR THE SUNDAY SALE OF DIFFERENT KINDS OF ALCOHOLIC BEVERAGES, AT
DIFFERENT HOURS DURING THE DAY, BY VENDORS HOLDING DIFFERENT TYPES OF
LICENSES, IN DIFFERENT POLITICAL DIVISIONS OF THE STATE - PARTICULARLY
IN ANNE ARUNDEL COUNTY.  SEE MD. ANN. CODE, ART. 2B, SEC. 28(A). 

THE REMAINING STATUTORY SECTIONS CONCERN A MYRIAD OF EXCEPTIONS FOR
VARIOUS COUNTIES, DISTRICTS OF COUNTIES, CITIES AND TOWNS THROUGHOUT
THE STATE.  AMONG THE ACTIVITIES ALLOWED IN CERTAIN AREAS ON SUNDAY ARE
SUCH SPORTS AS FOOTBALL, BASEBALL, GOLF, TENNIS, BOWLING, CROQUET,
BASKETBALL, LACROSSE, SOCCER, HOCKEY, SWIMMING, SOFTBALL, BOATING,
FISHING, SKATING, HORSEBACK RIDING, STOCK CAR RACING AND POOL OR
BILLIARDS.  OTHER IMMUNIZED ACTIVITIES PERMITTED IN SOME REGIONS OF THE
STATE INCLUDE GROUP SINGING OR PLAYING OF MUSICAL INSTRUMENTS; THE
EXHIBITION OF MOTION PICTURES; DANCING; THE OPERATION OF RECREATION
CENTERS, PICNIC GROUNDS, SIMMING POOLS, SKATING RINKS AND MINIATURE
GOLF COURSES.  THE TAKING OF OYSTERS AND THE HUNTING OR KILLING OF GAME
IS GENERALLY FORBIDDEN, BUT SHOOTING CONDUCTED BY ORGANIZED ROD AND GUN
CLUBS IS PERMITTED IN ONE COUNTY.  IN SOME OF THE SUBDIVISONS WITHIN
THE STATE, THE EXEMPTED SUNDAY ACTIVITIES ARE SANCTIONED THROUGHOUT THE
DAY; IN OTHERS, THEY MAY NOT COMMENCE UNTIL EARLY AFTERNOON OR EVENING;
IN MANY, THE ACTIVITIES MAY ONLY BE CONDUCTED DURING THE AFTERNOON AND
LATE IN THE EVENING.  CERTAIN LOCALITIES DO NOT PERMIT THE ALLOWED
SUNDAY ACTIVITY TO BE CARRIED ON WITHIN ONE HUNDRED YARDS OF ANY CHURCH
WHERE RELIGIOUS SERVICES ARE BEING HELD.  LOCAL ORDINANCES AND
REGULATIONS CONCERNING CERTAIN LIMITED ACTIVITIES SUPPLEMENT THE
STATE'S STATUTORY SCHEME.  IN ANNE ARUNDEL COUNTY, FOR EXAMPLE, SLOT
MACHINES, PINBALL MACHINES AND BINGO MAY BE PLAYED ON SUNDAY. 

AMONG OTHER THINGS, APPELLANTS CONTENDED AT THE TRIAL THAT THE
MARYLAND STATUTES UNDER WHICH THEY WERE CHARGED WERE CONTRARY TO THE
FOURTEENTH AMENDMENT FOR THE REASONS STATED AT THE OUTSET OF THIS
OPINION.  APPELLANTS WERE CONVICTED AND EACH WAS FINED FIVE DOLLARS AND
COSTS.  THE MARYLAND COURT OF APPEALS AFFIRMED, 220 MD. 117, 151 A.2D
156; ON APPEAL BROUGHT UNDER 28 U.S.C.  SEC. 1257(2), WE NOTED PROBABLE
JURISDICTION.  362 U.S. 959. 

        I. 

APPELLANTS ARGUE THAT THE MARYLAND STATUTES VIOLATE THE "EQUAL
PROTECTION" CLAUSE OF THE FOURTEENTH AMENDMENT ON SEVERAL COUNTS. 
FIRST, THEY CONTEND THAT THE CLASSIFICATIONS CONTAINED IN THE STATUTES
CONCERNING WHICH COMMODITIES MAY OR MAY NOT BE SOLD ON SUNDAY ARE
WITHOUT RATIONAL AND SUBSTANTIAL RELATION TO THE OBJECT OF THE
LEGISLATION.  (FN2)  SPECIFICALLY, APPELLANTS ALLEGE THAT THE STATUTORY
EXEMPTIONS FOR THE SUNDAY SALE OF THE MERCHANDISE MENTIONED ABOVE
RENDER ARBITRARY THE STATUTE UNDER WHICH THEY WERE CONVICTED. 
APPELLANTS FURTHER ALLEGE THAT SEC. 521 IS CAPRICIOUS BECAUSE OF THE
EXEMPTIONS FOR THE OPERATION OF THE VARIOUS AMUSEMENTS THAT HAVE BEEN
LISTED AND BECAUSE SLOT MACHINES, PIN-BALL MACHINES, AND BINGO ARE
LEGALIZED AND ARE FREELY PLAYED ON SUNDAY. 

THE STANDARDS UNDER WHICH THIS PROPOSITION IS TO BE EVALUATED HAVE
BEEN SET FORTH MANY TIMES BY THIS COURT.  ALTHOUGH NO PRECISE FORMULA
HAS BEEN DEVELOPED, THE COURT HAS HELD THAT THE FOURTEENTH AMENDMENT
PERMITS THE STATES A WIDE SCOPE OF DISCRETION IN ENACTING LAWS WHICH
AFFECT SOME GROUPS OF CITIZENS DIFFERENTLY THAN OTHERS.  THE
CONSTITUTIONAL SAFEGUARD IS OFFENDED ONLY IF THE CLASSIFICATION RESTS
ON GROUNDS WHOLLY IRRELEVANT TO THE ACHIEVEMENT OF THE STATE'S
OBJECTIVE.  STATE LEGISLATURES ARE PRESUMED TO HAVE ACTED WITHIN THEIR
CONSTITUTIONAL POWER DESPITE THE FACT THAT, IN PRACTICE, THEIR LAWS
RESULT IN SOME INEQUALITY.  A STATUTORY DISCRIMINATION WILL NOT BE SET
ASIDE IF ANY STATE OF FACTS REASONABLY MAY BE CONCEIVED TO JUSTIFY IT.
SEE KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS, 330 U.S. 552;
METROPOLITAN CASUALTY INS. CO. V. BROWNELL, 294 U.S. 580, LINDSLEY V.
NATURAL CARBONIC GAS CO., 220 U.S. 61; ATCHISON, T.&S.F.R. CO. V.
MATTHEWS, 174 U.S. 96.  (FN3) 

IT WOULD SEEM THAT A LEGISLATURE COULD REASONABLY FIND THAT THE
SUNDAY SALE OF THE EXEMPTED COMMODITIES WAS NECESSARY EITHER FOR THE
HEALTH OF THE POPULACE OR FOR THE ENHANCEMENT OF THE RECREATIONAL
ATMOSPHERE OF THE DAY - THAT A FAMILY WHICH TAKES A SUNDAY RIDE INTO
THE COUNTRY WILL NEED GASOLINE FOR THE AUTOMOBILE AND MAY FIND PLEASANT
A SOFT DRINK OR FRESH FRUIT; THAT THOSE WHO GO TO THE BEACH MAY WISH
ICE CREAM OR SOME OTHER ITEM NORMALLY SOLD THERE; THAT SOME PEOPLE WILL
PREFER ALCOHOLIC BEVERAGES OR GAMES OF CHANCE TO ADD TO THEIR
RELAXATION; THAT NEWSPAPERS AND DRUG PRODUCTS SHOULD ALWAYS BE
AVAILABLE TO THE PUBLIC. 

THE RECORD IS BARREN OF ANY INDICATION THAT THIS APPARENTLY
REASONABLE BASIS DOES NOT EXIST, THAT THE STATUTORY DISTINCTIONS ARE
INVIDIOUS, THAT LOCAL TRADITION AND CUSTOM MIGHT NOT RATIONALLY CALL
FOR THIS LEGISLATIVE TREATMENT.  SEE SALSBURG V. MARYLAND, 346 U.S.
545, 552-553; KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS, SUPRA.
LIKEWISE, THE FACT THAT THESE EXEMPTIONS EXIST AND DENY SOME VENDORS
AND OPERATORS THE DAY OF REST AND RECREATION CONTEMPLATED BY THE
LEGISLATURE DOES NOT RENDER THE STATUTES VIOLATIVE OF EQUAL PROTECTION
SINCE THERE WOULD APPEAR TO BE MANY VALID REASONS FOR THESE EXEMPTIONS,
AS STATED ABOVE, AND NO EVIDENCE TO DISPEL THEM. 

SECONDLY, APPELLANTS CONTEND THAT THE STATUTORY ARRANGEMENT WHICH
PERMITS ONLY CERTAIN ANNE ARUNDEL COUNTY RETAILERS TO SELL MERCHANDISE
ESSENTIAL TO, OR CUSTOMARILY SOLD AT, OR INCIDENTAL TO THE OPERATION OF
BATHING BEACHES, AMUSEMENT PARKS ET CETERA IS CONTRARY TO THE "EQUAL
PROTECTION" CLAUSE BECAUSE IT DISCRIMINATES UNREASONABLY AGAINST
RETAILERS IN OTHER MARYLAND COUNTIES.  BUT WE HAVE HELD THAT THE EQUAL
PROTECTION CLAUSE RELATES TO EQUALITY BETWEEN PERSONS AS SUCH, RATHER
THAN BETWEEN AREAS AND THAT TERRITORIAL UNIFORMITY IS NOT A
CONSTITUTIONAL PREREQUISITE.  WITH PARTICULAR REFERENCE TO THE STATE OF
MARYLAND, WE HAVE NOTED THAT THE PRESCRIPTION OF DIFFERENT SUBSTANTIVE
OFFENSES IN DIFFERENT COUNTIES IS GENERALLY A MATTER FOR LEGISLATIVE
DISCRETION.  WE FIND NO INVIDIOUS DISCRIMINATION HERE.  SEE SALSBURG V.
MARYLAND, SUPRA. 

THIRDLY, APPELLANTS CONTEND THAT THIS SAME STATUTORY PROVISION, ART.
27, SEC. 509, VIOLATES THE "EQUAL PROTECTION" CLAUSE BECAUSE IT PERMITS
ONLY CERTAIN MERCHANTS WITHIN ANNE ARUNDEL COUNTY (OPERATORS OF BATHING
BEACHES AND AMUSEMENT PARKS ET CETERA) TO SELL MERCHANDISE CUSTOMARILY
SOLD AT THESE PLACES WHILE FORBIDDING ITS SALE BY OTHER VENDORS OF THIS
MERCHANDISE, SUCH AS APPELLANTS' EMPLOYER.  (FN1)  HERE AGAIN, IT WOULD
SEEM THAT A LEGISLATURE COULD REASONABLY FIND THAT THESE COMMODITIES,
NECESSARY FOR THE HEALTH AND RECREATION OF ITS CITIZENS, SHOULD ONLY BE
SOLD ON SUNDAY BY THOSE VENDORS AT THE LOCATIONS WHERE THE COMMODITIES
ARE MOST LIKELY TO BE IMMEDIATELY PUT TO USE.  SUCH A DETERMINATION
WOULD SEEM TO SERVE THE CONSUMING PUBLIC AND AT THE SAME TIME SECURE
SUNDAY REST FOR THOSE EMPLOYEES, LIKE APPELLANTS, OF ALL OTHER RETAIL
ESTABLISHMENTS.  IN ADDITION, THE ENFORCEMENT PROBLEMS WHICH WOULD
ACCRUE IF LARGE RETAIL ESTABLISHMENTS, LIKE APPELLANTS' EMPLOYER, WERE
PERMITTED TO REMAIN OPEN ON SUNDAY BUT WERE RESTRICTED TO THE SALE OF
THE MERCHANDISE IN QUESTION WOULD BE FAR GREATER THAN THE PROBLEMS
ACCRUING IF ONLY BEACH AND AMUSEMENT PARK VENDORS WERE EXEMPTED.  HERE
AGAIN, THERE HAS BEEN NO INDICATION OF THE UNREASONABLENESS OF THIS
DIFFERENTIATION.  ON THE RECORD BEFORE US, WE CANNOT SAY THAT THESE
STATUTES DO NOT PROVIDE EQUAL PROTECTION OF THE LAWS. 

       II. 

ANOTHER QUESTION PRESENTED BY APPELLANTS IS WHETHER ART. 27, SEC.
509, WHICH EXEMPTS THE SUNDAY RETAIL SALE OF "MERCHANDISE ESSENTIAL TO,
OR CUSTOMARILY SOLD AT, OR INCIDENTAL TO, THE OPERATION OF" BATHING
BEACHES, AMUSEMENT PARKS ET CETERA IN ANNE ARUNDEL COUNTY, IS
UNCONSTITUTIONALLY VAGUE.  WE BELIEVE THAT BUSINESS PEOPLE OF ORDINARY
INTELLIGENCE IN THE POSITION OF APPELLANTS' EMPLOYER WOULD BE ABLE TO
KNOW WHAT EXCEPTIONS ARE ENCOMPASSED BY THE STATUTE EITHER AS A MATTER
OF ORDINARY COMMERCIAL KNOWLEDGE OR BY SIMPLY MAKING A REASONABLE
INVESTIGATION AT A NEARBY BATHING BEACH OR AMUSEMENT PARK WITHIN THE
COUNTY.  SEE UNITED STATES V. HARRISS, 347 U.S. 612, 617-618.  UNDER
THESE CIRCUMSTANCES, THERE IS NO NECESSITY TO GUESS AT THE STATUTE'S
MEANING IN ORDER TO DETERMINE WHAT CONDUCT IT MAKES CRIMINAL.  CONNALLY
V. GENERAL CONSTRUCTION CO. 269 U.S. 385-391.  QUESTIONS CONCERNING
PROOF THAT THE ITEMS APPELLANTS SOLD WERE CUSTOMARILY SOLD AT, OR
INCIDENTAL TO THE OPERATION OF, A BATHING BEACH OR AMUSEMENT PARK WERE
NOT RAISED IN THE MARYLAND COURT OF APPEALS, NOR ARE THEY RAISED HERE. 
THUS, WE CANNOT CONSIDER THE MATTER.  WHITNEY V. CALIFORNIA, 274 U.S.
357, 362-363. 

                                           III. 

THE FINAL QUESTIONS FOR DECISION ARE WHETHER THE MARYLAND SUNDAY
CLOSING LAWS CONFLICT WITH THE FEDERAL CONSTITUTION'S PROVISIONS FOR
RELIGIOUS LIBERTY.  FIRST, APPELLANTS CONTEND HERE THAT THE STATUTES
APPLICABLE TO ANNE ARUNDEL COUNTY VIOLATE THE CONSTITUTIONAL GUARANTEE
OF FREEDOM OF RELIGION IN THAT THE STATUTES' EFFECT IS TO PROHIBIT THE
FREE EXERCISE OF RELIGION IN CONTRAVENTION OF THE FIRST AMENDMENT, MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.  (FN5)  BUT
APPELLANTS ALLEGE ONLY ECONOMIC INJURY TO THEMSELVES; THEY DO NOT
ALLEGE ANY INFRINGEMENT OF THEIR OWN RELIGIOUS FREEDOMS DUE TO SUNDAY
CLOSING.  IN FACT, THE RECORD IS SILENT AS TO WHAT APPELLANTS'
RELIGIOUS BELIEFS ARE.  SINCE THE GENERAL RULE IS THAT "A LITIGANT MAY
ONLY ASSERT HIS OWN CONSTITUTIONAL RIGHTS OR IMMUNITIES," UNITED STATES
V. RAINES, 362 U.S. 17, 22, WE HOLD THAT APPELLANTS HAVE NO STANDING TO
RAISE THIS CONTENTION.  (FN6)  TILESTON V. ULLMAN, 318 U.S. 44, 46. 
FURTHERMORE, SINCE APPELLANTS DO NOT SPECIFICALLY ALLEGE THAT THE
STATUTES INFRINGE UPON THE RELIGIOUS BELIEFS OF THE DEPARTMENT STORE'S
PRESENT OR PROSPECTIVE PATRONS, WE HAVE NO OCCASION HERE TO CONSIDER
THE STANDING QUESTION OF PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510,
535-536.  THOSE PERSONS WHOSE RELIGIOUS RIGHTS ARE ALLEGEDLY IMPAIRED
BY THE STATUTES ARE NOT WITHOUT EFFECTIVE WAYS TO ASSERT THESE RIGHTS. 
CF. N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 459-460; BARROWS V. JACKSON,
346 U.S. 249, 257.  APPELLANTS PRESENT NO WEIGHTY COUNTERVAILING
POLICIES HERE TO CAUSE AN EXCEPTION TO OUR GENERAL PRINCIPLES.  SEE
UNITED STATES V. RAINES, SUPRA.    SECONDLY, APPELLANTS CONTEND THAT
THE STATUTES VIOLATE THE GUARANTEE OF SEPARATION OF CHURCH AND STATE IN
THAT THE STATUTES ARE LAWS RESPECTING AN ESTABLISHMENT OF RELIGION
CONTRARY TO THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT.  IF THE PURPOSE OF THE "ESTABLISHMENT" CLAUSE WAS
ONLY TO INSURE PROTECTION FOR THE "FREE EXERCISE" OF RELIGION, THEN
WHAT WE HAVE SAID ABOVE CONCERNING APPELLANTS' STANDING TO RAISE THE
"FREE EXERCISE" CONTENTION WOULD APPEAR TO BE TRUE HERE.  HOWEVER, THE
WRITINGS OF MADISON, WHO WAS THE FIRST AMENDMENT'S ARCHITECT,
DEMONSTRATE THAT THE ESTABLISHMENT OF A RELIGION WAS EQUALLY FEARED
BECAUSE OF ITS TENDENCIES TO POLITICAL TYRANNY AND SUBVERSION OF CIVIL
AUTHORITY.  (FN7)  THUS, IN EVERSON V. BOARD OF EDUCATION, SUPRA, THE
COURT PERMITTED A DISTRICT TAXPAYER TO CHALLENGE, ON "ESTABLISHMENT"
GROUNDS, A STATE STATUTE WHICH AUTHORIZED DISTRICT BOARDS OF EDUCATION
TO REIMBURSE PARENTS FOR FARES PAID FOR THE TRANSPORTATION OF THEIR
CHILDREN TO BOTH PUBLIC AND CATHOLIC SCHOOLS.  APPELLANTS HERE
CONCEDEDLY HAVE SUFFERED DIRECT ECONOMIC INJURY, ALLEGEDLY DUE TO THE
IMPOSITION ON THEM OF THE TENETS OF THE CHRISTIAN RELIGION.  (FN8)  WE
FIND THAT, IN THESE CIRCUMSTANCES, THESE APPELLANTS HAVE STANDING TO
COMPLAIN THAT THE STATUTES ARE LAWS RESPECTING AN ESTABLISHMENT OF
RELIGION. 

THE ESSENCE OF APPELLANTS'"ESTABLISHMENT" ARGUMENT IS THAT SUNDAY IS
THE SABBATH DAY OF THE PREDOMINANT CHRISTIAN SECTS; THAT THE PURPOSE OF
THE ENFORCED STOPPAGE OF LABOR ON THAT DAY IS TO FACILITATE AND
ENCOURAGE CHURCH ATTENDANCE; THAT THE PURPOSE OF SETTING SUNDAY AS A
DAY OF UNIVERSAL REST IS TO INDUCE PEOPLE WITH NO RELIGION OR PEOPLE
WITH MARGINAL RELIGIOUS BELIEFS TO JOIN THE PREDOMINANT CHRISTIAN
SUNDAY CLOSING IS TO AID THE CONDUCT OF CHURCH SERVICES AND RELIGIOUS
OBSERVANCE OF THE SACRED DAY.  IN SUBSTANTIATING THEIR "ESTABLISHMENT"
ARGUMENT, APPELLANTS RELY ON THE WORDING OF THE PRESENT MARYLAND
STATUTES, ON EARLIER VERSIONS OF THE CURRENT SUNDAY LAWS BY THE
MARYLAND COURT OF APPEALS.  ALTHOUGH ONLY THE CONSTITUTIONALITY OF SEC.
521, THE SECTION UNDER WHICH APPELLANTS HAVE BEEN CONVICTED, IS
IMMEDIATELY BEFORE US IN THIS LITIGATION, INQUIRY INTO THE HISTORY OF
SUNDAY CLOSING LAWS IN OUR COUNTRY, IN ADDITION TO AN EXAMINATION OF
THE MARYLAND SUNDAY CLOSING STATUTES IN THEIR ENTIRETY AND OF THEIR
HISTORY, IS RELEVANT TO THE DECISION OF WHETHER THE MARYLAND SUNDAY LAW
IN QUESTION IS ONE RESPECTING AN ESTABLISHMENT OF RELIGION.  THERE IS
NO DISPUTE THAT THE ORIGINAL LAWS WHICH DEALT WITH SUNDAY LABOR WERE
MOTIVATED BY RELIGIOUS FORCES.  BUT WHAT WE MUST DECIDE IS WHETHER
PRESENT SUNDAY LEGISLATION, HAVING UNDER GONE EXTENSIVE CHANGES FROM
THE EARLIEST FORMS, STILL RETAINS ITS RELIGIOUS CHARACTER. 

SUNDAY CLOSING LAWS GO FAR BACK INTO AMERICAN HISTORY, HAVING BEEN
BROUGHT TO THE COLONIES WITH A BACKGROUND OF ENGLISH LEGISLATION DATING
TO THE THIRTEENTH CENTURY.  IN 1237, HENRY III FORBADE THE FREQUENTING
OF MARKETS ON SUNDAY; THE SUNDAY SHOWING OF WOOLS AT THE STAPLE WAS
BANNED BY EDWARD III IN 1354; IN 1409, HENRY IV PROHIBITED THE PLAYING
OF UNLAWFUL GAMES ON SUNDAY; HENRY VI PROSCRIBED SUNDAY FAIRS IN
CHURCHYARDS IN 1444 AND, FOUR YEARS LATER, MADE UNLAWFUL ALL FAIRS AND
MARKETS AND ALL SHOWINGS OF ANY GOODS OR MERCHANDISE; EDWARD VI
DISALLOWED SUNDAY BODILY LABOR BY SEVERAL INJUNCTIONS IN THE MID
SIXTEENTH CENTURY; VARIOUS SUNDAY SPORTS AND AMUSEMENTS WERE RESTRICTED
IN 1625 BY CHARLES I. LEWIS, A CRITICAL HISTORY OF SUNDAY LEGISLATION,
82-108; JOHNSON AND YOST, SEPARATION OF CHURCH AND STATE, 221.  THE LAW
OF THE COLONIES TO THE TIME OF THE REVOLUTION AND THE BASIS OF THE
SUNDAY LAWS IN THE STATES WAS 29 CHARLES II, C. 7 (1677).  IT PROVIDED,
IN PART: 

"FOR THE BETTER OBSERVATION AND KEEPING HOLY THE LORD'S DAY, COMMONLY
CALLED SUNDAY:  BE IT ENACTED  ...  THAT ALL THE LAWS ENACTED AND IN
FORCE CONCERNING THE OBSERVATION OF THE DAY, AND REPAIRING TO THE
CHURCH THEREON, BE CAREFULLY PUT IN EXECUTION; AND THAT ALL AND EVERY
PERSON AND PERSONS WHATSOEVER SHALL UPON EVERY LORD'S DAY APPLY
THEMSELVES TO THE OBSERVATION OF THE SAME, BY EXERCISING THEMSELVES
THEREON IN THE DUTIES OF PIETY AND TRUE RELIGION, PUBLICLY AND
PRIVATELY; AND THAT NO TRADESMAN, ARTIFICER, WORKMAN, LABORER, OR OTHER
PERSON WHATSOEVER, SHALL DO OR EXERCISE ANY WORLDLY LABOR OR BUSINESS
OR WORK OF THEIR ORDINARY CALLINGS UPON THE LORD'S DAY, OR ANY PART
THEREOF (WORKS OF NECESSITY AND CHARITY ONLY EXCEPTED); ...  AND THAT
NO PERSON OR PERSONS WHATSOEVER SHALL PUBLICLY CRY, SHOW FORTH, OR
EXPOSE FOR SALE ANY WARES, MERCHANDISE, FRUIT, HERBS, GOODS, OR
CHATTELS, WHATSOEVER, UPON THE LORD'S DAY, OR ANY PART THEREOF  ...
."  (FN9) 

OBSERVATION OF THE ABOVE LANGUAGE, AND OF THAT OF THE PRIOR MANDATES,
REVEALS CLEARLY THAT THE ENGLISH SUNDAY LEGISLATION WAS IN AID OF THE
ESTABLISHED CHURCH. 

THE AMERICAN COLONIAL SUNDAY RESTRICTIONS AROSE SOON AFTER
SETTLEMENT.  STARTING IN 1650, THE PLYMOUTH COLONY PROSCRIBED SERVILE
WORK, UNNECESSARY TRAVELLING, SPORTS, AND THE SALE OF ALCOHOLIC
BEVERAGES ON THE LORD'S DAY AND ENACTED LAWS CONCERNING CHURCH
ATTENDANCE.  THE MASSACHUSETTS BAY COLONY AND THE CONNECTICUT AND NEW
HAVEN COLONIES ENACTED SIMILAR PROHIBITIONS, SOME EVEN EARLIER IN THE
SEVENTEENTH CENTURY.  THE RELIGIOUS ORIENTATION OF THE COLONIAL
STATUTES WAS EQUALLY APPARENT.  FOR EXAMPLE, A 1629 MASSACHUSETTS BAY
INSTRUCTION BEGAN, "AND TO THE END THE SABBATH MAY BE CELEBRATED IN A
RELIGIOUS MANNER  ...  ."  A 1653 ENACTMENT SPOKE OF SUNDAY ACTIVITIES
"WHICH THINGS TEND MUCH TO THE DISHONOR OF GOD, THE REPROACH OF
RELIGION, AND THE PROFANATION OF HIS HOLY SABBATH, THE SANCTIFICATION
WHEREOF IS SOMETIMES PUT FOR ALL DUTIES IMMEDIATELY RESPECTING THE
SERVICE OF GOD  ...  ."  LEWIS, OP.  CIT., SUPRA, AT PP. 160-195,
PARTICULARLY AT 167, 169.  (FN10)  THESE LAWS PERSEVERED AFTER THE
REVOLUTION AND, AT ABOUT THE TIME OF THE FIRST AMENDMENT'S ADOPTION,
EACH OF THE COLONIES HAD LAWS OF SOME SORT RESTRICTING SUNDAY LABOR. 
SEE NOTE, 73 HARV. L. REV. 729-730, 739-740; JOHNSON AND YOST, OP.
CIT., SUPRA, AT PP. 222-223. 

BUT, DESPITE THE STRONGLY RELIGIOUS ORIGIN OF THESE LAWS, BEGINNING
BEFORE THE EIGHTEENTH CENTURY, NONRELIGIOUS ARGUMENTS FOR SUNDAY
CLOSING BEGAN TO BE HEARD MORE DISTINCTLY AND THE STATUTES BEGAN TO
LOSE SOME OF THEIR TOTALLY RELIGIOUS FLAVOR.  IN THE MIDDLE 1700'S,
BLACKSTONE WROTE, "THE KEEPING ONE DAY IN THE SEVEN HOLY, AS A TIME OF
RELAXATION AND REFRESHMENT AS WELL AS FOR PUBLIC WORSHIP, IS OF
ADMIRABLE SERVICE TO A STATE CONSIDERED MERELY AS A CIVIL INSTITUTION. 
IT HUMANIZES, BY THE HELP OF CONVERSATION AND SOCIETY, THE MANNERS OF
THE LOWER CLASSES; WHICH WOULD OTHERWISE DEGENERATE INTO A SORDID
FEROCITY AND SAVAGE SELFISHNESS OF SPIRIT; IT ENABLES THE INDUSTRIOUS
WORKMAN TO PURSUE HIS OCCUPATION IN THE ENSUING WEEK WITH HEALTH AND
CHEERFULNESS."  4 BL. COMM. 63.   AT 1788 ENGLISH STATUTE DEALING WITH
CHIMNEY SWEEPS, 28 GEO. III, C. 48, IN ADDITION TO PROVIDING FOR THEIR
SUNDAY RELIGIOUS AFFAIRS, ALSO REGULATED THEIR HOURS OF WORK.  THE
PREAMBLE TO A 1679 RHODE ISLAND ENACTMENT STATED THAT THE REASON FOR
THE BAN ON SUNDAY EMPLOYMENT WAS THAT "PERSONS BEING EVILL MINDED, HAVE
PRESUMED TO EMPLOY IN SERVILE LABOR, MORE THAN NECESSITY REQUIRETH,
THEIR SERVANTS  ...  ."  3 RECORDS OF THE COLONY OF RHODE ISLAND AND
PROVIDENCE PLANTATIONS 31.  THE NEW YORK LAW OF 1788 OMITTED THE TERM
"LORD'S DAY" AND SUBSTITUTED "THE FIRST DAY OF THE WEEK COMMONLY CALLED
SUNDAY."  2 LAWS OF N.Y. 1785-1788, 680.  SIMILAR CHANGES MARKED THE
MARYLAND STATUTES, DISCUSSED BELOW.  WITH THE ADVENT OF THE FIRST
AMENDMENT, THE COLONIAL PROVISIONS REQUIRING CHURCH ATTENDANCE WERE
SOON REPEALED.  NOTE, 73 HARV. L. REV., SUPRA, AT PP. 729-730. 

MORE RECENTLY, FURTHER SECULAR JUSTIFICATIONS HAVE BEEN ADVANCED FOR
MAKING SUNDAY A DAY OF REST, A DAY WHEN PEOPLE MAY RECOVER FROM THE
LABORS OF THE WEEK JUST PASSED AND MAY PHYSICALLY AND MENTALLY PREPARE
FOR THE WEEK'S WORK TO COME.  IN ENGLAND, DURING THE FIRST WORLD WAR, A
COMMITTEE INVESTIGATING THE HEALTH CONDITIONS OF MUNITIONS WORKERS
REPORTED THAT "IF THE MAXIMUM OUTPUT IS TO BE SECURED AND MAINTAINED
FOR ANY LENGTH OF TIME, A WEEKLY PERIOD OF REST MUST BE ALLOWED  ...  .
ON ECONOMIC AND SOCIAL GROUNDS ALIKE THIS WEEKLY PERIOD OF REST IS BEST
PROVIDED ON SUNDAY."  (FN11)

THE PROPONENTS OF SUNDAY CLOSING LEGISLATION ARE NO LONGER
EXCLUSIVELY REPRESENTATIVES OF RELIGIOUS INTERESTS.  RECENT NEW JERSEY
SUNDAY LEGISLATION WAS SUPPORTED BY LABOR GROUPS AND TRADE
ASSOCIATIONS, NOTE, 73 HARV. L. REV. 730-731; MODERN ENGLISH SUNDAY
LEGISLATION WAS PROMOTED BY THE NATIONAL FEDERATION OF GROCERS AND
SUPPORTED BY THE NATIONAL CHAMBER OF TRADE, THE DRAPERS' CHAMBER OF
TRADE, AND THE NATIONAL UNION OF SHOP ASSISTANTS.  308 PARLIAMENTARY
DEBATES, COMMONS 2158-2159. 

THROUGHOUT THE YEARS, STATE LEGISLATURES HAVE MODIFIED, DELETED FROM
AND ADDED TO THEIR SUNDAY STATUTES.  AS EVIDENCED BY THE NEW JERSEY
LAWS MENTIONED ABOVE, CURRENT CHANGES ARE COMMONPLACE.  ALMOST EVERY
STATE IN OUR COUNTRY PRESENTLY HAS SOME TYPE OF SUNDAY REGULATION AND
OVER FORTY POSSESS A RELATIVELY COMPREHENSIVE SYSTEM.  NOTE, 73 HARV.
L. REV. 732-733; NOTE, 12 RUTGERS L. REV. 506.  SOME OF OUR STATES NOW
ENFORCE THEIR SUNDAY LEGISLATION THROUGH DEPARTMENTS OF LABOR, E.G., 6
S.C. CODE ANN. (1952), SEC. 64-5.  THUS HAVE SUNDAY LAWS EVOLVED FROM
THE WHOLLY RELIGIOUS SANCTIONS THAT ORIGINALLY WERE ENACTED. 

MOREOVER, LITIGATION OVER SUNDAY CLOSING LAWS IS NOT NOVEL.  SCORES
OF CASES MAY BE FOUND IN THE STATE APPELLATE COURTS RELATING TO SUNDRY
PHASES OF SUNDAY ENACTMENTS.  (FN12)  RELIGIOUS OBJECTIONS HAVE BEEN
RAISED THERE ON NUMEROUS OCCASIONS BUT SUSTAINED ONLY ONCE, IN EX PARTE
NEWMAN, 9 CAL. 502 (1858); AND THAT DECISION WAS OVERRULED THREE YEARS
LATER, IN EX PARTE ANDREWS, 18 CAL. 678.  A SUBSTANTIAL NUMBER OF CASES
IN VARYING POSTURES BEARING ON STATE SUNDAY LEGISLATION HAVE REACHED
THIS COURT.  (FN13)  ALTHOUGH NONE RAISING THE ISSUES NOW PRESENTED
HAVE GAINED PLENARY HEARING, LANGUAGE USED IN SOME OF THESE CASES
FURTHER EVIDENCES THE EVOLUTION OF SUNDAY LAWS AS TEMPORAL STATUTES. 
MR. JUSTICE FIELD WROTE IN SOON HING V. CROWLEY, 113 U.S. 703, AT P.
710: 

"LAWS SETTING ASIDE SUNDAY AS A DAY OF REST ARE UPHELD, NOT FROM ANY
RIGHT OF THE GOVERNMENT TO LEGISLATE FOR THE PROMOTION OF RELIGIOUS
OBSERVANCES, BUT FROM ITS RIGHT TO PROTECT ALL PERSONS FROM THE
PHYSICAL AND MORAL DEBASEMENT WHICH COMES FROM UNINTERRUPTED LABOR. 
SUCH LAWS HAVE ALWAYS BEEN DEEMED BENEFICENT AND MERCIFUL LAWS,
ESPECIALLY TO THE POOR AND DEPENDENT, TO THE LABORERS IN OUR FACTORIES
AND WORKSHOPS AND IN THE HEATED ROOMS OF OUR CITIES; AND THEIR VALIDITY
HAS BEEN SUSTAINED BY THE HIGHEST COURTS OF THE STATES." 

WHILE A MEMBER OF THE CALIFORNIA SUPREME COURT, MR. JUSTICE FIELD
DISSENTED IN EX PARTE NEWMAN, SUPRA, AT PP. 519-520, 528, SAYING: 

"ITS REQUIREMENT IS A CESSATION FROM LABOR.  IN ITS ENACTMENT, THE
LEGISLATURE HAS GIVEN THE SANCTION OF LAW TO A RULE OF CONDUCT, WHICH
THE ENTIRE CIVILIZED WORLD RECOGNIZES AS ESSENTIAL TO THE PHYSICAL AND
MORAL WELL-BEING OF SOCIETY.  UPON NO SUBJECT IS THERE SUCH A
CONCURRENCE OF OPINION, AMONG PHILOSOPHERS, MORALISTS AND STATESMEN OF
ALL NATIONS, AS ON THE NECESSITY OF PERIODICAL CESSATIONS FROM LABOR. 
ONE DAY IN SEVEN IS THE RULE, FOUNDED IN EXPERIENCE, AND SUSTAINED BY
SCIENCE  ...  .  THE PROHIBITION OF SECULAR BUSINESS ON SUNDAY IS
ADVOCATED ON THE GROUND THAT BY IT THE GENERAL WELFARE IS ADVANCED,
LABOR PROTECTED, AND THE MORAL AND PHYSICAL WELL-BEING OF SOCIETY
PROMOTED." 

THIS WAS QUOTED WITH APPROVAL BY MR. JUSTICE HARLAN IN HENNINGTON V.
GEORGIA, SUPRA, WHO ALSO STATED: 

"IT IS NONE THE LESS A CIVIL REGULATION BECAUSE THE DAY ON WHICH THE
RUNNING OF FREIGHT TRAINS IS PROHIBITED IS KEPT BY MANY UNDER A SENSE
OF RELIGIOUS DUTY.  THE LEGISLATURE HAVING, AS WILL NOT BE DISPUTED,
POWER TO ENACT LAWS TO PROMOTE THE ORDER AND TO SECURE THE COMFORT,
HAPPINESS AND HEALTH OF THE PEOPLE, IT WAS WITHIN ITS DISCRETION TO FIX
THE DAY WHEN ALL LABOR, WITHIN THE LIMITS OF THE STATE, WORKS OF
NECESSITY AND CHARITY EXCEPTED, SHOULD CEASE."  ID., AT 304. 

AND MR. CHIEF JUSTICE FULLER CITED BOTH OF THESE PASSAGES IN PETIT V.
MINNESOTA, SUPRA. 

BEFORE TURNING TO THE MARYLAND LEGISLATION NOW HERE UNDER ATTACK, AN
INVESTIGATION OF WHAT HISTORICAL POSITION SUNDAY CLOSING LAWS HAVE
OCCUPIED WITH REFERENCE TO THE FIRST AMENDMENT SHOULD BE UNDERTAKEN,
EVERSON V. BOARD OF EDUCATION, SUPRA, AT P. 14. 

THIS COURT HAS CONSIDERED THE HAPPENINGS SURROUNDING THE VIRGINIA
GENERAL ASSEMBLY'S ENACTMENT OF "AN ACT FOR ESTABLISHING RELIGIOUS
FREEDOM."  12 HENING'S STATUTES OF VIRGINIA 84, WRITTEN BY THOMAS
JEFFERSON AND SPONSORED BY JAMES MADISON, AS BEST REFLECTING THE LONG
AND INTENSIVE STRUGGLE FOR RELIGIOUS FREEDOM IN AMERICA, AS
PARTICULARLY RELEVANT IN THE SEARCH FOR THE FIRST AMENDMENT'S MEANING. 
SEE THE OPINIONS IN EVERSON V. BOARD OF EDUCATION, SUPRA.  IN 1776,
NINE YEARS BEFORE THE BILL'S PASSAGE, MADISON CO-AUTHORED VIRGINIA'S
DECLARATION OF RIGHTS WHICH PROVIDED, INTER ALIA, THAT "ALL MEN ARE
EQUALLY ENTITLED TO THE FREE EXERCISE OF RELIGION, ACCORDING TO THE
DICTATES OF CONSCIENCE  ...  ."  9 HENING'S STATUTES OF VIRGINIA 109,
111-112.  VIRGINIA HAD HAD SUNDAY LEGISLATION SINCE EARLY IN THE
SEVENTEENTH CENTURY; IN 1776, THE LAWS PENALIZING "MAINTAINING ANY
OPINIONS IN MATTERS OF RELIGION, FORBEARING TO REPAIR TO CHURCH, OR THE
EXERCISING ANY MODE OF WORSHIP WHATSOEVER", WERE REPEALED, AND ALL
DISSENTERS WERE FREED FROM THE TAXES LEVIED FOR THE SUPPORT OF THE
ESTABLISHED CHURCH.  ID., AT 164.  THE SUNDAY LABOR PROHIBITIONS
REMAINED; APPARENTLY, THEY WERE NOT BELIEVED TO BE INCONSISTENT WITH
THE NEWLY ENACTED DECLARATION OF RIGHTS.  MADISON HAD SOUGHT ALSO TO
HAVE THE DECLARATION EXPRESSLY CONDEMN THE EXISTING VIRGINIA
ESTABLISHMENT.  (FN14)  THIS HOPE WAS FINALLY REALIZED WHEN "A BILL FOR
ESTABLISHING RELIGIOUS FREEDOM" WAS PASSED IN 1785.  IN THIS SAME YEAR,
MADISON PRESENTED TO VIRGINIA LEGISLATORS "A BILL FOR PUNISHING  ...
SABBATH BREAKERS" WHICH PROVIDED, IN PART: 

"IF ANY PERSON ON SUNDAY SHALL HIMSELF BE FOUND LABOURING AT HIS OWN
OR ANY OTHER TRADE OR CALLING, OR SHALL EMPLOY HIS APPRENTICES,
SERVANTS OR SLAVES IN LABOUR, OR OTHER BUSINESS, EXCEPT IT BE IN THE
ORDINARY HOUSEHOLD OFFICES OF DAILY NECESSITY, OR OTHER WORK OF
NECESSITY OR CHARITY, HE SHALL FORFEIT THE SUM OF TEN SHILLINGS FOR
EVERY SUCH OFFENCE, DEEMING EVERY APPRENTICE, SERVANT, OR SLAVE SO
EMPLOYED, AND EVERY DAY HE SHALL BE SO EMPLOYED AS CONSTITUTING A
DISTINCT OFFENCE."  (FN15) 

THIS BECAME LAW THE FOLLOWING YEAR AND REMAINED DURING THE TIME THAT
MADISON FOUGHT FOR THE FIRST AMENDMENT IN THE CONGRESS.  IT WAS THE LAW
OF VIRGINIA, AND SIMILAR LAWS WERE IN FORCE IN OTHER STATES, WHEN
MADISON STATED AT THE VIRGINIA RATIFICATION CONVENTION: 

"HAPPILY FOR THE STATES, THEY ENJOY THE UTMOST FREEDOM OF RELIGION
...  .  FORTUNATELY FOR THIS COMMONWEALTH, A MAJORITY OF THE PEOPLE ARE
DECIDEDLY AGAINST ANY EXCLUSIVE ESTABLISHMENT.  I BELIEVE IT TO BE SO
IN THE OTHER STATES  ...  .  I CAN APPEAL TO MY UNIFORM CONDUCT ON THIS
SUBJECT, THAT I HAVE WARMLY SUPPORTED RELIGIOUS FREEDOM."  (FN16) 

IN 1799, VIRGINIA PRONOUNCED "AN ACT FOR ESTABLISHING RELIGIOUS
FREEDOM" AS "A TRUE EXPOSITION OF THE PRINCIPLES OF THE BILL OF RIGHTS
AND CONSTITUTION," AND REPEALED ALL SUBSEQUENTLY ENACTED LEGISLATION
DEEMED INCONSISTENT WITH IT.  2 SHEPHERD, STATUTES AT LARGE OF
VIRGINIA, 149.  VIRGINIA'S STATUTE BANNING SUNDAY LABOR STOOD.  (FN17) 

IN REYNOLDS V. UNITED STATES, 98 U.S. 145, THE COURT RELIED HEAVILY
ON THE HISTORY OF THE VIRGINIA BILL.  THAT CASE CONCERNED A MORMON'S
ATTACK ON A STATUTE MAKING BIGAMY A CRIME.  THE COURT SAID: 

"IN CONNECTION WITH THE CASE WE ARE NOW CONSIDERING, IT IS A
SIGNIFICANT FACT THAT ON THE 8TH OF DECEMBER, 1788, AFTER THE PASSAGE
OF THE ACT ESTABLISHING RELIGIOUS FREEDOM, AND AFTER THE CONVENTION OF
VIRGINIA HAD RECOMMENDED AS AN AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES THE DECLARATION IN A BILL OF RIGHTS THAT 'ALL MEN HAVE AN
EQUAL, NATURAL, AND UNALIENABLE RIGHT TO THE FREE EXERCISE OF RELIGION,
ACCORDING TO THE DICTATES OF CONSCIENCE,' THE LEGISLATURE OF THAT STATE
SUBSTANTIALLY ENACTED THE STATUTE OF JAMES I., DEATH PENALTY INCLUDED,
BECAUSE, AS RECITED IN THE PREAMBLE, 'IT HATH BEEN DOUBTED WHETHER
BIGAMY OR POLIGAMY BE PUNISHABLE BY THE LAWS OF THIS COMMONWEALTH.'  12
HENING'S STAT. 691.  FROM THAT DAY TO THIS WE THINK IT MAY SAFELY BE
SAID THERE NEVER HAS BEEN A TIME IN ANY STATE OF THE UNION WHEN
POLYGAMY HAS NOT BEEN AN OFFENCE AGAINST SOCIETY, COGNIZABLE BY THE
CIVIL COURTS AND PUNISHABLE WITH MORE OR LESS SEVERITY.  IN THE FACE OF
ALL OF THIS EVIDENCE, IT IS IMPOSSIBLE TO BELIEVE THAT THE
CONSTITUTIONAL GUARANTY OF RELIGIOUS FREEDOM WAS INTENDED TO PROHIBIT
LEGISLATION IN RESPECT TO THIS MOST IMPORTANT FEATURE OF SOCIAL LIFE." 
ID., AT 165. 

IN THE CASE AT BAR, WE FIND THE PLACE OF SUNDAY CLOSING LAWS IN THE
FIRST AMENDMENT'S HISTORY BOTH ENLIGHTENING AND PERSUASIVE. 

BUT IN ORDER TO DISPOSE OF THE CASE BEFORE US, WE MUST CONSIDER THE
STANDARDS BY WHICH THE MARYLAND STATUTES ARE TO BE MEASURED.  HERE, A
BRIEF REVIEW OF THE FIRST AMENDMENT'S BACKGROUND PROVES HELPFUL.  THE
FIRST AMENDMENT STATES THAT "CONGRESS SHALL MAKE NO LAW RESPECTING AN
ESTABLISHMENT OF RELIGION  ...  ."  U.S. CONST., AMEND. I. THE
AMENDMENT WAS PROPOSED BY JAMES MADISON ON JUNE 8, 1789, IN THE HOUSE
OF REPRESENTATIVES.  IT THEN READ, IN PART: 

"THE CIVIL RIGHTS OF NONE SHALL BE ABRIDGED ON ACCOUNT OF RELIGIOUS
BELIEF OR WORSHIP, NOR SHALL ANY NATIONAL RELIGION BE ESTABLISHED, NOR
SHALL THE FULL AND EQUAL RIGHTS OF CONSCIENCE BE IN ANY MANNER, OR ON
ANY PRETEXT, INFRINGED."  I ANNALS OF CONGRESS 434. 

WE ARE TOLD THAT MADISON ADDED THE WORD "NATIONAL" TO MEET THE
SCRUPLES OF STATES WHICH THEN HAD AN ESTABLISHED CHURCH.  1 STOKES,
CHURCH AND STATE IN THE UNITED STATES, 541.  AFTER BEING REFERRED TO
COMMITTEE, IT WAS CONSIDERED BY THE HOUSE, ON AUGUST 15, 1789, ACTING
AS A COMMITTEE OF THE WHOLE.  SOME ASSISTANCE IN DETERMINING THE SCOPE
OF THE AMENDMENT'S PROSCRIPTION OF ESTABLISHMENT MAY BE FOUND IN THAT
DEBATE. 

IN ITS REPORT TO THE HOUSE, THE COMMITTEE, TO WHICH THE SUBJECT OF
AMENDMENTS TO THE CONSTITUTION HAD BEEN SUBMITTED, RECOMMENDED THE
INSERTION OF THE LANGUAGE, "NO RELIGION SHALL BE ESTABLISHED BY LAW." 
I ANNALS OF CONGRESS 729.  MR. GERRY "SAID IT WOULD READ BETTER IF IT
WAS, THAT NO RELIGIOUS DOCTRINE SHALL BE ESTABLISHED BY LAW."  ID., AT
730.  MR. MADISON "SAID, HE APPREHENDED THE MEANING OF THE WORDS TO BE,
THAT CONGRESS SHOULD NOT ESTABLISH A RELIGION, AND ENFORCE THE LEGAL
OBSERVATION OF IT BY LAW, NOR COMPEL MEN TO WORSHIP GOD IN ANY MANNER
CONTRARY TO THEIR CONSCIENCE  ...  .  HE BELIEVED THAT THE PEOPLE
FEARED ONE SECT MIGHT OBTAIN A PRE-EMINENCE, OR TWO COMBINE TOGETHER,
AND ESTABLISH A RELIGION TO WHICH THEY WOULD COMPEL OTHERS TO
CONFORM."  ID., AT 730-731. 

THE AMENDMENT, AS IT PASSED THE HOUSE OF REPRESENTATIVES NINE DAYS
LATER, READ, IN PART: 

"CONGRESS SHALL MAKE NO LAW ESTABLISHING RELIGION  ...  ."  RECORDS
OF THE UNITED STATES SENATE, 1A-C2 (U.S. NAT. ARCHIVES). 

IT PASSED THE SENATE ON SEPTEMBER 9, 1789, READING, IN PART: 

"CONGRESS SHALL MAKE NO LAW ESTABLISHING ARTICLES OF FAITH, OR A MODE
OF WORSHIP  ...  ."  IBID. 

AN EARLY COMMENTATOR OPINED THAT THE "REAL OBJECT OF THE AMENDMENT
WAS  ...  TO PREVENT ANY NATIONAL ECCLESIASTICAL ESTABLISHMENT, WHICH
SHOULD GIVE TO AN HIERARCHY THE EXCLUSIVE PATRONAGE OF THE NATIONAL
GOVERNMENT."  3 STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES, 728.  BUT, THE FIRST AMENDMENT, IN ITS FINAL FORM, DID NOT
SIMPLY BAR A CONGRESSIONAL ENACTMENT ESTABLISHING A CHURCH; IT FORBADE
ALL LAWS RESPECTING AN ESTABLISHMENT OF RELIGION.  THUS, THIS COURT HAS
GIVEN THE AMENDMENT A "BROAD INTERPRETATION  ...  IN THE LIGHT OF ITS
HISTORY AND THE EVILS IT WAS DESIGNED FOREVER TO SUPPRESS  ...  ." 
EVERSON V. BOARD OF EDUCATION, SUPRA, AT PP. 14-15.  IT HAS FOUND THAT
THE FIRST AND FOURTEENTH AMENDMENTS AFFORD PROTECTION AGAINST RELIGIOUS
ESTABLISHMENT FAR MORE EXTENSIVE THAN MERELY TO FORBID A NATIONAL OR
STATE CHURCH.  THUS, IN MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203,
THE COURT HELD THAT THE ACTION OF A BOARD OF EDUCATION, PERMITTING
RELIGIOUS INSTRUCTION DURING SCHOOL HOURS IN PUBLIC SCHOOL BUILDINGS
AND REQUIRING THOSE CHILDREN WHO CHOSE NOT TO ATTEND TO REMAIN IN THEIR
CLASSROOMS, TO BE CONTRARY TO THE "ESTABLISHMENT" CLAUSE. 

HOWEVER, IT IS EQUALLY TRUE THAT THE "ESTABLISHMENT" CLAUSE DOES NOT
BAN FEDERAL OR STATE REGULATION OF CONDUCT WHOSE REASON OR EFFECT
MERELY HAPPENS TO COINCIDE OR HARMONIZE WITH THE TENETS OF SOME OR ALL
RELIGIONS.  IN MANY INSTANCES, THE CONGRESS OR STATE LEGISLATURES
CONCLUDE THAT THE GENERAL WELFARE OF SOCIETY, WHOLLY APART FROM ANY
RELIGIOUS CONSIDERATIONS, DEMANDS SUCH REGULATION.   THUS, FOR TEMPORAL
PURPOSES, MURDER IS ILLEGAL.  AND THE FACT THAT THIS AGREES WITH THE
DICTATES OF THE JUDAEO-CHRISTIAN RELIGIONS WHILE IT MAY DISAGREE WITH
OTHERS DOES NOT INVALIDATE THE REGULATION.   SO TOO WITH THE QUESTIONS
OF ADULTERY AND POLYGAMY.  DAVIS V. BEASON, 133 U.S. 333; REYNOLDS V.
UNITED STATES, SUPRA.  THE SAME COULD BE SAID OF THEFT, FRAUD, ETC.,
BECAUSE THOSE OFFENSES WERE ALSO PROSCRIBED IN THE DECALOGUE. 

THUS, THESE BROAD PRINCIPLES HAVE BEEN SET FORTH BY THIS COURT. 
THOSE CASES DEALING WITH THE SPECIFIC PROBLEMS ARISING UNDER THE
"ESTABLISHMENT" CLAUSE WHICH HAVE REACHED THIS COURT ARE FEW IN
NUMBER.  THE MOST EXTENSIVE DISCUSSION OF THE "ESTABLISHMENT" CLAUSE'S
LATITUDE IS TO BE FOUND IN EVERSON V. BOARD OF EDUCATION, SUPRA, AT PP.
15-16: 

"THE 'ESTABLISHMENT OF RELIGION' CLAUSE OF THE FIRST AMENDMENT MEANS
AT LEAST THIS:  NEITHER A STATE NOR THE FEDERAL GOVERNMENT CAN SET UP A
CHURCH.  NEITHER CAN PASS LAWS WHICH AID ONE RELIGION, AID ALL
RELIGIONS, OR PREFER ONE RELIGION OVER ANOTHER.  NEITHER CAN FORCE NOR
INFLUENCE A PERSON TO GO TO OR TO REMAIN AWAY FROM CHURCH AGAINST HIS
WILL OR FORCE HIM TO PROFESS A BELIEF OR DISBELIEF IN ANY RELIGION.  NO
PERSON CAN BE PUNISHED FOR ENTERTAINING OR PROFESSING RELIGIOUS BELIEFS
OR DISBELIEFS, FOR CHURCH ATTENDANCE OR NON-ATTENDANCE.  NO TAX IN ANY
AMOUNT, LARGE OR SMALL, CAN BE LEVIED TO SUPPORT ANY RELIGIOUS
ACTIVITIES OR INSTITUTIONS, WHATEVER THEY MAY BE CALLED, OR WHATEVER
FORM THEY MAY ADOPT TO TEACH OR PRACTICE RELIGION.  NEITHER A STATE NOR
THE FEDERAL GOVERNMENT CAN, OPENLY OR SECRETLY, PARTICIPATE IN THE
AFFAIRS OF ANY RELIGIOUS ORGANIZATIONS OR GROUPS AND VICE VERSA.  IN
THE WORDS OF JEFFERSON, THE CLAUSE AGAINST ESTABLISHMENT OF RELIGION BY
LAW WAS INTENDED TO ERECT 'A WALL OF SEPARATION BETWEEN CHURCH AND
STATE.'" 

UNDER CHALLENGE WAS A STATUTE AUTHORIZING REPAYMENT TO PARENTS OF
THEIR CHILDREN'S TRANSPORTATION EXPENSES TO PUBLIC AND CATHOLIC
SCHOOLS.  THE COURT, SPEAKING THROUGH MR. JUSTICE BLACK, RECOGNIZED
THAT "IT IS UNDOUBTEDLY TRUE THAT CHILDREN ARE HELPED TO GET TO CHURCH
SCHOOLS," AND "THERE IS EVEN A POSSIBILITY THAT SOME OF THE CHILDREN
MIGHT NOT BE SENT TO THE CHURCH SCHOOLS IF THE PARENTS WERE COMPELLED
TO PAY THEIR CHILDREN'S BUS FARES OUT OF THEIR OWN POCKETS WHEN
TRANSPORTATION TO A PUBLIC SCHOOL WOULD HAVE BEEN PAID FOR BY THE
STATE."  ID., AT 17.  BUT THE COURT FOUND THAT THE PURPOSE AND EFFECT
OF THE STATUTE IN QUESTION WAS GENERAL "PUBLIC WELFARE LEGISLATION,"
ID., AT 16; THAT IT WAS TO PROTECT ALL SCHOOL CHILDREN FROM THE "VERY
REAL HAZARDS OF TRAFFIC," ID., AT 17; THAT THE EXPENDITURE OF PUBLIC
FUNDS FOR SCHOOL TRANSPORTATION, TO RELIGIOUS SCHOOLS OR TO ANY OTHERS,
WAS LIKE THE EXPENDITURE OF PUBLIC FUNDS TO PROVIDE POLICEMEN TO
SAFEGUARD THESE SAME CHILDREN OR TO PROVIDE "SUCH GENERAL GOVERNMENT
SERVICES AS ORDINARY POLICE AND FIRE PROTECTION, CONNECTIONS FOR SEWAGE
DISPOSAL, PUBLIC HIGHWAYS AND SIDEWALKS," ID., AT 17-18.  (FN18) 

IN LIGHT OF THE EVOLUTION OF OUR SUNDAY CLOSING LAWS THROUGH THE
CENTURIES, AND OF THEIR MORE OR LESS RECENT EMPHASIS UPON SECULAR
CONSIDERATIONS, IT IS NOT DIFFICULT TO DISCERN THAT AS PRESENTLY
WRITTEN AND ADMINISTERED, MOST OF THEM, AT LEAST, ARE OF A SECULAR
RATHER THAN OF A RELIGIOUS CHARACTER, AND THAT PRESENTLY THEY BEAR NO
RELATIONSHIP TO ESTABLISHMENT OF RELIGION AS THOSE WORDS ARE USED IN
THE CONSTITUTION OF THE UNITED STATES. 

THROUGHOUT THIS CENTURY AND LONGER, BOTH THE FEDERAL AND STATE
GOVERNMENTS HAVE ORIENTED THEIR ACTIVITIES VERY LARGELY TOWARD
IMPROVEMENT OF THE HEALTH, SAFETY, RECREATION AND GENERAL WELL-BEING OF
OUR CITIZENS.  NUMEROUS LAWS AFFECTING PUBLIC HEALTH, SAFETY FACTORS IN
INDUSTRY, LAWS AFFECTING HOURS AND CONDITIONS OF LABOR OF WOMEN AND
CHILDREN, WEEK-END DIVERSION AT PARKS AND BEACHES, AND CULTURAL
ACTIVITIES OF VARIOUS KINDS, NOW POINT THE WAY TOWARD THE GOOD LIFE FOR
ALL.  SUNDAY CLOSING LAWS, LIKE THOSE BEFORE US, HAVE BECOME PART AND
PARCEL OF THIS GREAT GOVERNMENTAL CONCERN WHOLLY APART FROM THEIR
ORIGINAL PURPOSES OR CONNOTATIONS.  THE PRESENT PURPOSE AND EFFECT OF
MOST OF THEM IS TO PROVIDE A UNIFORM DAY OF REST FOR ALL CITIZENS; THE
FACT THAT THIS DAY IS SUNDAY, A DAY OF PARTICULAR SIGNIFICANCE FOR THE
DOMINANT CHRISTIAN SECTS, DOES NOT BAR THE STATE FROM ACHIEVING ITS
SECULAR GOALS.  TO SAY THAT THE STATES CANNOT PRESCRIBE SUNDAY AS A DAY
OF REST FOR THESE PURPOSES SOLELY BECAUSE CENTURIES AGO SUCH LAWS HAD
THEIR GENESIS IN RELIGION WOULD GIVE A CONSTITUTIONAL INTERPRETATION OF
HOSTILITY TO THE PUBLIC WELFARE RATHER THAN ONE OF MERE SEPARATION OF
CHURCH AND STATE. 

WE NOW REACH THE MARYLAND STATUTES UNDER REVIEW.  THE TITLE OF THE
MAJOR SERIES OF SECTIONS OF THE MARYLAND CODE DEALING WITH SUNDAY
CLOSING - ART. 27, SECS. 492-534C - IS "SABBATH BREAKING"; SEC. 492
PROSCRIBES WORK OR BODILY LABOR ON THE "LORD'S DAY," AND FORBIDS
PERSONS TO "PROFANE THE LORD'S DAY" BY GAMING, FISHING ET CETERA; SEC.
522 REFERS TO SUNDAY AS THE "SABBATH DAY."  AS HAS BEEN MENTIONED
ABOVE, MANY OF THE EXEMPTED SUNDAY ACTIVITIES IN THE VARIOUS LOCALITIES
OF THE STATE MAY ONLY BE CONDUCTED DURING THE AFTERNOON AND LATE
EVENING; MOST CHRISTIAN CHURCH SERVICES, OF COURSE, ARE HELD ON SUNDAY
MORNING AND EARLY SUNDAY EVENING.  FINALLY, AS PREVIOUSLY NOTED,
CERTAIN LOCALITIES DO NOT PERMIT THE ALLOWED SUNDAY ACTIVITIES TO BE
CARRIED ON WITHIN ONE HUNDRED YEARS OF ANY CHURCH WHERE RELIGIOUS
SERVICES ARE BEING HELD.  THIS IS THE TOTALITY OF THE EVIDENCE OF
RELIGIOUS PURPOSE WHICH MAY BE GLEANED FROM THE FACE OF THE PRESENT
STATUTE AND FROM ITS OPERATIVE EFFECT. 

THE PREDECESSORS OF THE EXISTING MARYLAND SUNDAY LAWS ARE UNDENIABLY
RELIGIOUS IN ORIGIN.  THE FIRST MARYLAND STATUTE DEALING WITH SUNDAY
ACTIVITIES, ENACTED IN 1649, WAS ENTITLED "AN ACT CONCERNING
RELIGION."  1 ARCHIVES OF MARYLAND 244-247.  IT MADE IT CRIMINAL TO
"PROFANE THE SABBATH OR LORDS DAY CALLED SUNDAY BY FREQUENT SWEARING,
DRUNKENNESS OR BY ANY UNCIVILL OR DISORDERLY RECREATION, OR BY WORKING
ON THAT DAY WHEN ABSOLUTE NECESSITY DOTH NOT REQUIRE IT."  ID., AT
245.  A 1692 STATUTE ENTITLED "AN ACT FOR THE SERVICE OF ALMIGHTY GOD
AND THE ESTABLISHMENT OF THE PROTESTANT RELIGION WITHIN THIS PROVINCE,"
13 ARCHIVES OF MARYLAND 425-430, AFTER FIRST STATING THE IMPORTANCE OF
KEEPING THE LORD'S DAY HOLY AND SANCTIFIED AND EXPRESSING CONCERN WITH
THE BREACH OF ITS OBSERVANCE THROUGHOUT THE STATE, THEN ENACTED A
SUNDAY LABOR PROHIBITION WHICH WAS THE OBVIOUS PRECURSOR OF THE PRESENT
SEC. 492.  (FN19)  THERE WAS A RE-ENACTMENT IN 1696 ENTITLED "AN ACT
FOR SANCTIFYING & KEEPING HOLY THE LORD'S DAY COMMONLY CALLED SUNDAY." 
19 ARCHIVES OF MARYLAND 418-420.   BY 1723, THE SABBATH-BREAKING
THE SPECIFIC PROHIBITION AGAINST SUNDAY SWEARING AND THE PATENTLY
RELIGIOUSLY MOTIVATED TITLE.  BACON, LAWS OF MARYLAND (1723), C. XVI. 
THERE ARE JUDICIAL STATEMENTS IN EARLY MARYLAND DECISIONS WHICH TEND
TO SUPPORT APPELLANTS' POSITION.  IN AN 1834 CASE INVOLVING A CONTRACT
CALLING FOR DELIVERY ON SUNDAY, THE MARYLAND COURT OF APPEALS REMARKED
THAT "OURS IS A CHRISTIAN COMMUNITY, AND A DAY SET APART AS THE DAY OF
REST, IS THE DAY CONSECRATED BY THE RESURRECTION OF OUR SAVIOUR, AND
EMBRACES THE TWENTY-FOUR HOURS NEXT ENSUING THE MIDNIGHT OF SATURDAY." 
KILGOUR V. MILES, 6 GILL AND JOHNSON 268, 274.  THIS LANGUAGE WAS CITED
WITH APPROVAL IN JUDEFIND V. STATE, 78 MD. 510, 514, 28 A. 405, 406
(1894).  IT WAS ALSO STATED THERE: 

"IT IS UNDOUBTEDLY TRUE THAT REST FROM SECULAR EMPLOYMENT ON SUNDAY
DOES HAVE A TENDENCY TO FOSTER AND ENCOURAGE THE CHRISTIAN RELIGION -
OF ALL SECTS AND DENOMINATIONS THAT OBSERVE THAT DAY - AS REST FROM
WORK AND ORDINARY OCCUPATION ENABLES MANY TO ENGAGE IN PUBLIC WORHSIP
WHO PROBABLY WOULD NOT OTHERWISE DO SO. BUT IT WOULD SCARCELY BE ASKED
OF A COURT, IN WHAT PROFESSES TO BE A CHRISTIAN LAND, TO DECLARE A LAW
UNCONSTITUTIONAL BECAUSE IT REQUIRES REST FROM BODILY LABOR ON SUNDAY,
(EXCEPT WORKS OF NECESSITY AND CHARITY,) AND THEREBY PROMOTES THE CAUSE
OF CHRISTIANITY.  IF THE CHRISTIAN RELIGION IS, INCIDENTIALLY OR
OTHERWISE, BENEFITED OR FOSTERED BY HAVING THIS DAY OF REST, AS IT
UNDOUBTEDLY IS, THERE IS ALL THE MORE REASON FOR THE ENFORCEMENT OF
LAWS THAT HELP TO PRESERVE IT.  WHILST COURTS HAVE GENERALLY SUSTAINED
SUNDAY LAWS AS 'CIVIL REGULATIONS,' THEIR DECISIONS WILL HAVE NO LESS
WEIGHT IF THEY ARE SHOWN TO BE IN ACCORDANCE WITH DIVINE LAW AS WELL AS
HUMAN."  ID., AT 515-516, 28 A., AT 407. 

BUT IT SHOULD BE NOTED THAT, THROUGHOUT THE JUDEFIND DECISION, THE
MARYLAND COURT SPECIFICALLY REJECTED THE CONTENTION THAT THE LAWS
INTERFERED WITH RELIGIOUS LIBERTY AND STATED THAT THE LAWS' PURPOSE WAS
TO PROVIDE THE "ADVANTAGES OF HAVING A WEEKLY DAY OF REST, 'FROM A MERE
PHYSICAL AND POLITICAL STANDPOINT.'"  ID., AT 513, 28 A., AT 406. 

CONSIDERING THE LANGUAGE AND OPERATIVE EFFECT OF THE CURRENT
STATUTES, WE NO LONGER FIND THE BLANKET PROHIBITION AGAINST SUNDAY WORK
OR BODILY LABOR.  TO THE CONTRARY, WE FIND THAT SEC. 521 OF ART. 27,
THE SECTION WHICH APPELLANTS VIOLATED, PERMITS THE SUNDAY SALE OF
TOBACCOS AND SWEETS AND A LONG LIST OF SUNDRY ARTICLES WHICH WE HAVE
ENUMERATED ABOVE; WE FIND THAT SEC. 509 OF ART. 27 PERMITS THE SUNDAY
OPERATION OF BATHING BEACHES, AMUSEMENT PARKS AND SIMILAR FACILITIES;
WE FIND THAT ART. 2B, SEC. 28, PERMITS THE SUNDAY SALE OF ALCOHOLIC
BEVERAGES, PRODUCTS STRICTLY FORBIDDEN BY PREDECESSOR STATUTES, WE ARE
TOLD THAT ANNE ARUNDEL COUNTY ALLOWS SUNDAY BINGO AND THE SUNDAY
PLAYING OF PINBALL MACHINES AND SLOT MACHINES, ACTIVITIES GENERALLY
CONDEMNED BY PRIOR MARYLAND SUNDAY LEGISLATION.  (FN20)  CERTAINLY,
THESE ARE NOT WORKS OF CHARITY OR NECESSITY.  SECTION 521'S CURRENT
STIPULATION THAT SHOPS WITH ONLY ONE EMPLOYEE MAY REMAIN OPEN ON SUNDAY
DOES NOT COINCIDE WITH A RELIGIOUS PURPOSE.  THESE PROVISIONS, ALONG
WITH THOSE WHICH PERMIT VARIOUS SPORTS AND ENTERTAINMENTS ON SUNDAY,
SEEM CLEARLY TO BE FASHIONED FOR THE PURPOSE OF PROVIDING A SUNDAY
ATMOSPHERE OF RECREATION, CHEERFULNESS, REPOSE AND ENJOYMENT.  COUPLED
WITH THE GENERAL PROSCRIPTION AGAINST OTHER TYPES OF WORK, WE BELIEVE
THAT THE AIR OF THE DAY IS ONE OF RELAXATION RATHER THAN ONE OF
RELIGION. 

THE EXISTING MARYLAND SUNDAY LAWS ARE NOT SIMPLY VERBATIM RE
ENACTMENTS OF THEIR RELIGIOUSLY ORIENTED ANTECEDENTS.  ONLY SEC. 492
RETAINS THE APPELLATION OF "LORD'S DAY" AND EVEN THAT SECTION NO LONGER
MAKES RECITATION OF RELIGIOUS PURPOSE.  IT DOES TALK IN TERMS OF
"PROFANING THE LORD'S DAY," BUT OTHER SECTIONS PERMIT THE ACTIVITIES
PREVIOUSLY THOUGHT TO BE PROFANE.  PRIOR DENUNCIATION OF SUNDAY
DRUNKENNESS IS NOW GONE.  CONTEMPORARY CONCERN WITH THESE STATUTES IS
EVIDENCED BY THE DOZEN CHANGES MADE IN 1959 AND BY THE RECENT ENACTMENT
OF A MAJORIRY OF THE EXCEPTIONS. 

FINALLY, THE RELEVANT PRONOUNCEMENTS OF THE MARYLAND COURT OF APPEALS
DISPEL ANY ARGUMENT THAT THE STATUTES' ANNOUNCED PURPOSE IS RELIGIOUS. 
IN HILLER V. MARYLAND, 124 MD. 385, 92 A. 842 (1914), THE COURT HAD
BEFORE IT A BALTIMORE ORDINANCE PROHIBITING SUNDAY BASEBALL.  THE COURT
SAID: 

"WHAT THE EMINENT CHIEF JUDGE SAID WITH RESPECT TO POLICE ENACTMENTS
WHICH DEAL WITH THE PROTECTION OF THE PUBLIC HEALTH, MORALS AND SAFETY
APPLY WITH EQUAL FORCE TO THOSE WHICH ARE CONCERNED WITH THE PEACE,
ORDER AND QUIET OF THE COMMUNITY ON SUNDAY, FOR THESE SOCIAL CONDITIONS
ARE WELL RECOGNIZED HEADS OF THE POLICE POWER.  CAN THE COURT SAY THAT
THIS ORDINANCE HAS NO REAL AND SUBSTANTIAL RELATION TO THE PEACE AND
ORDER AND QUIET OF SUNDAY, AS A DAY OF REST, IN THE CITY OF
BALTIMORE?"  ID., AT 393, 92 A., AT 844.  SEE ALSO LEVERING V.
WILLIAMS, 134 MD. 48, 54-59, 106 A. 176, 178-179 (1919). 

AND THE MARYLAND COURT DECLARED IN ITS DECISION IN THE INSTANT CASE:
"THE LEGISLATIVE PLAN IS PLAIN.  IT IS TO COMPEL A DAY OF REST FROM
WORK, PERMITTING ONLY ACTIVITIES WHICH ARE NECESSARY OR RECREATIONAL." 
MCGOWAN V. STATE, SUPRA, AT P. 123, 151 A.2D, AT 159.  AFTER ENGAGING
IN THE CLOSE SCRUTINY DEMANDED OF US WHEN FIRST AMENDMENT LIBERTIES ARE
AT ISSUE, WE ACCEPT THE STATE SUPREME COURT'S DETERMINATION THAT THE
STATUTES' PRESENT PURPOSE AND EFFECT IS NOT TO AID RELIGION BUT TO SET
ASIDE A DAY OF REST AND RECREATION. 

BUT THIS DOES NOT ANSWER ALL OF APPELLANTS' CONTENTIONS.  WE ARE TOLD
THAT THE STATE HAS OTHER MEANS AT ITS DISPOSAL TO ACCOMPLISH ITS
SECULAR PURPOSE, OTHER COURSES THAT WOULD NOT EVEN REMOTELY OR
INCIDENTALLY GIVE STATE AID TO RELIGION.  ON THIS BASIS, WE ARE ASKED
TO HOLD THESE STATUTES INVALID ON THE GROUND THAT THE STATE'S POWER TO
REGULATE CONDUCT IN THE PUBLIC INTEREST MAY ONLY BE EXECUTED IN A WAY
THAT DOES NOT UNDULY OR UNNECESSARILY INFRINGE UPON THE RELIGIOUS
PROVISIONS OF THE FIRST AMENDMENT.  SEE CANTWELL V. CONNECTICUT, SUPRA,
AT PP. 304-305.  HOWEVER RELEVANT THIS ARGUMENT MAY BE, WE BELIEVE THAT
THE FACTUAL BASIS ON WHICH IT RESTS IS NOT SUPPORTABLE.  IT IS TRUE
THAT IF THE STATE'S INTEREST WERE SIMPLY TO PROVIDE FOR ITS CITIZENS A
PERIODIC RESPITE FROM WORK, A REGULATION DEMANDING THAT EVERYONE REST
ONE DAY IN SEVEN, LEAVING THE CHOICE OF THE DAY TO THE INDIVIDUAL,
WOULD SUFFICE. 

HOWEVER, THE STATE'S PURPOSE IS NOT MERELY TO PROVIDE A ONE-DAY-IN
SEVEN WORK STOPPAGE.  IN ADDITION TO THIS, THE STATE SEEKS TO SET ONE
DAY APART FROM ALL OTHERS AS A DAY OF REST, REPOSE, RECREATION AND
TRANQUILITY - A DAY WHICH ALL MEMBERS OF THE FAMILY AND COMMUNITY HAVE
THE OPPORTUNITY TO SPEND AND ENJOY TOGETHER, A DAY ON WHICH THERE
EXISTS RELATIVE QUIET AND DISASSOCIATION FROM THE EVERYDAY INTENSITY OF
COMMERCIAL ACTIVITIES, A DAY ON WHICH PEOPLE MAY VISIT FRIENDS AND
RELATIVES WHO ARE NOT AVAILABLE DURING WORKING DAYS.  (FN21) 

OBVIOUSLY, A STATE IS EMPOWERED TO DETERMINE THAT A REST-ONE-DAY-IN
SEVEN STATUTE WOULD NOT ACCOMPLISH THIS PURPOSE; THAT IT WOULD NOT
PROVIDE FOR A GENERAL CESSATION OF ACTIVITY, A SPECIAL ATMOSPHERE OF
TRANQUILITY, A DAY WHICH ALL MEMBERS OF THE FAMILY OR FRIENDS AND
RELATIVES MIGHT SPEND TOGETHER.  FURTHERMORE, IT SEEMS PLAIN THAT THE
PROBLEMS INVOLVED IN ENFORCING SUCH A PROVISION WOULD BE EXCEEDINGLY
MORE DIFFICULT THAN THOSE IN ENFORCING A COMMON-DAY-OF-REST PROVISION. 

MOREOVER, IT IS COMMON KNOWLEDGE THAT THE FIRST DAY OF THE WEEK HAS
COME TO HAVE SPECIAL SIGNIFICANCE AS A REST DAY IN THIS COUNTRY. 
PEOPLE OF ALL RELIGIONS AND PEOPLE WITH NO RELIGION REGARD SUNDAY AS A
TIME FOR FAMILY ACTIVITY, FOR VISITING FRIENDS AND RELATIVES, FOR LATE
SLEEPING, FOR PASSIVE AND ACTIVE ENTERTAINMENTS, FOR DINING OUT, AND
THE LIKE.  "VAST MASSES OF OUR PEOPLE, IN FACT, LITERALLY MILLIONS, GO
OUT INTO THE COUNTRYSIDE ON FINE SUNDAY AFTERNOONS IN THE SUMMER  ...
."  308 PARLIAMENTARY DEBATES, COMMONS 2159.  SUNDAY IS A DAY APART
FROM ALL OTHERS.  (FN22)  THE CAUSE IS IRRELEVANT; THE FACT EXISTS.  IT
WOULD SEEM UNREALISTIC FOR ENFORCEMENT PURPOSES AND PERHAPS DETRIMENTAL
TO THE GENERAL WELFARE TO REQUIRE A STATE TO CHOOSE A COMMON DAY OF
REST OTHER THAN THAT WHICH MOST PERSONS WOULD SELECT OF THEIR OWN
ACCORD.  FOR THESE REASONS, WE HOLD THAT THE MARYLAND STATUTES ARE NOT
LAWS RESPECTING AN ESTABLISHMENT OF RELIGION. 

THE DISTINCTIONS BETWEEN THE STATUTES IN THE CASE BEFORE US AND THE
STATE ACTION IN MCCOLLUM V. BOARD OF EDUCATION, SUPRA, THE ONLY CASE IN
THIS COURT FINDING A VIOLATION OF THE "ESTABLISHMENT" CLAUSE, LEND
FURTHER SUBSTANTIATION TO OUR CONCLUSION.  IN MCCOLLUM, STATE ACTION
PERMITTED RELIGIOUS INSTRUCTION IN PUBLIC SCHOOL BUILDINGS DURING
SCHOOL HOURS AND REQUIRED STUDENTS NOT ATTENDING THE RELIGIOUS
INSTRUCTION TO REMAIN IN THEIR CLASSROOMS DURING THAT TIME.  THE COURT
FOUND THAT THIS SYSTEM HAD THE EFFECT OF COERCING THE CHILDREN TO
ATTEND RELIGIOUS CLASSES; NO SUCH COERCION TO ATTEND CHURCH SERVICES IS
PRESENT IN THE SITUATION AT BAR.  IN MCCOLLUM, THE ONLY ALTERNATIVE
AVAILABLE TO THE NONATTENDING STUDENTS WAS TO REMAIN IN THEIR
CLASSROOMS; THE ALTERNATIVES OPEN TO NONLABORING PERSONS IN THE INSTANT
CASE ARE FAR MORE DIVERSE.  IN MCCOLLUM, THERE WAS DIRECT COOPERATION
BETWEEN STATE OFFICIALS AND RELIGIOUS MINISTERS; NO SUCH DIRECT
PARTICIPATION EXISTS UNDER THE MARYLAND LAWS.  IN MCCOLLUM, TAX
SUPPORTED BUILDINGS WERE USED TO AID RELIGION; IN THE INSTANT CASE, NO
TAX MONIES ARE BEING USED IN AID OF RELIGION. 

FINALLY, WE SHOULD MAKE CLEAR THAT THIS CASE DEALS ONLY WITH THE
CONSTITUTIONALITY OF SEC.  521 OF THE MARYLAND STATUTE BEFORE US.  WE
DO NOT HOLD THAT SUNDAY LEGISLATION MAY NOT BE A VIOLATION OF THE
"ESTABLISHMENT" CLAUSE IF IT CAN BE DEMONSTRATED THAT ITS PURPOSE -
EVIDENCED EITHER ON THE FACE OF THE LEGISLATION, IN CONJUNCTION WITH
ITS LEGISLATIVE HISTORY, OR IN ITS OPERATIVE EFFECT - IS TO USE THE
STATE'S COERCIVE POWER TO AID RELIGION. 

ACCORDINGLY, THE DECISION IS AFFIRMED. 

FN1  THESE STATUTES, IN THEIR ENTIRETY, ARE FOUND IN MD. ANN. CODE,
1957, ART. 27, SECS. 492-534C; ART. 2B, SECS. 28(A), 90-106; ART. 66C,
SECS. 132(D), 698(D).  THOSE SECTIONS SPECIFICALLY REFERRED TO
HEREAFTER MAY BE FOUND IN AN APPENDIX TO THIS OPINION, POST, P. 453. 

FN2  COMPANION ARGUMENTS MADE BY APPELLANTS ARE THAT THE EXCEPTIONS
TO THE SUNDAY SALE'S PROHIBITION SO UNDERMINE THE ALLEGED PURPOSE OF
SUNDAY AS A DAY OF REST AS TO BEAR NO RATIONAL RELATIONSHIP TO IT AND
THEREBY RENDER THE STATUTES VIOLATIVE OF DUE PROCESS; THAT THE
DISTINCTIONS DRAWN BY THE STATUTES ARE SO UNREASONABLE AS TO VIOLATE
DUE PROCESS. 

FN3  MORE RECENTLY WE DECLARED: 

"THE PROBLEM OF LEGISLATIVE CLASSIFICATION IS A PERENNIAL ONE,
ADMITTING OF NO DOCTRINAIRE DEFINITION.  EVILS IN THE SAME FIELD MAY BE
OF DIFFERENT DIMENSIONS AND PROPORTIONS, REQUIRING DIFFERENT REMEDIES. 
OR SO THE LEGISLATURE MAY THINK.  TIGNER V. TEXAS, 310 U.S. 141.  OR
THE REFORM MAY TAKE ONE STEP AT A TIME, ADDRESSING ITSELF TO THE PHASE
OF THE PROBLEM WHICH SEEMS MOST ACUTE TO THE LEGISLATIVE MIND.  SEMLER
V. DENTAL EXAMINERS, 294 U.S. 608.  THE LEGISLATURE MAY SELECT ONE
PHASE OF ONE FIELD AND APPLY A REMEDY THERE, NEGLECTING THE OTHERS. 
A.F. OF L. V. AMERICAN SASH CO., 335 U.S. 538.  THE PROHIBITION OF THE
EQUAL PROTECTION CLAUSE GOES NO FURTHER THAN THE INVIDIOUS
DISCRIMINATION."  WILLIAMSON V. LEE OPTICAL, 348 U.S. 483, 489. 

FN4  WHETHER SEC. 509 IS TO BE READ THIS WAY OR IS TO BE READ TO
PERMIT THE SALE OF SUCH MERCHANDISE BY ALL VENDORS IN ANNE ARUNDEL
COUNTY IS UNCLEAR.  THE MARYLAND COURT OF APPEALS FOUND IT UNNECESSARY
TO REACH THIS QUESTION OF STATE LAW.  FOR PURPOSES OF THIS ARGUMENT, WE
ACCEPT THE CONSTRUCTION OF SEC. 509 SET FORTH BY APPELLANTS. 

FN5  CANTWELL V. CONNECTICUT, 310 U.S. 296, 303; MURDOCK V.
PENNSYLVANIA, 319 U.S. 105, 108; WEST VIRGINIA STATE BOARD OF EDUCATION
V. BARNETTE, 319 U.S. 624, 639; EVERSON V. BOARD OF EDUCATION, 330 U.S.
1, 5; MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 210. 

FN6  MR. JUSTICE BLACK IS OF THE OPINION THAT APPELLANTS DO HAVE
STANDING TO RAISE THIS CONTENTION.  HE BELIEVES THAT THEIR CLAIM IS
WITHOUT MERIT FOR THE REASONS EXPRESSED IN BRAUNFELD V. BROWN, POST, P.
599, AT PP. 602-610, AND GALLAGHER V. CROWN KOSHER SUPER MARKET, POST,
P. 617, AT PP. 630-631. 

FN7  MADISON'S MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS
ASSESSMENTS, PAR. 8, REPRINTED IN THE APPENDIX TO MR. JUSTICE
RUTLEDGE'S DISSENTING OPINION IN EVERSON V. BOARD OF EDUCATION, SUPRA,
AT P. 68. 

FN8  CF. DOREMUS V. BOARD OF EDUCATION, 342 U.S. 429, WHERE
COMPLAINANTS FAILED TO SHOW DIRECT AND PARTICULAR ECONOMIC DETRIMENT. 

FN9  ENGLISH STATUTES SUBSEQUENT TO THIS ARE CITED AND DISCUSSED IN
LEWIS, OP. CIT., SUPRA, PP. 111-142. 

FN10  A 1695 NEW YORK SUNDAY LAW PROVIDED: 

"WHEREAS, THE TRUE AND SINCERE WORSHIP OF GOD ACCORDING TO HIS HOLY
WILL AND COMMANDMENTS, IS OFTEN PROFANED AND NEGLECTED BY MANY OF THE
INHABITANTS AND SOJOURNERS IN THIS PROVINCE, WHO DO NOT KEEP HOLY THE
LORD'S DAY, BUT IN A DISORDERLY MANNER ACCUSTOM THEMSELVES TO TRAVEL,
LABORING, WORKING, SHOOTING, FISHING, SPORTING, PLAYING, HORSE-RACING,
FREQUENTING OF TIPPLING HOUSES AND THE USING MANY OTHER UNLAWFUL
EXERCISES AND PASTIMES, UPON THE LORD'S DAY, TO THE GREAT SCANDAL OF
THE HOLY CHRISTIAN FAITH, BE IT ENACTED, ETC."  ID., AT 200-201. 
FN11  MINISTRY OF MUNITIONS, HEALTH OF MUNITION WORKERS COMMITTEE,
REPORT ON SUNDAY LABOUR, MEMORANDUM NO. 1 (1915), 5. 

FN12  SEE CASES COLLECTED AT 50 AM. JUR.  802 ET SEQ.; 24 A.L.R.2D 813
ET SEQ.; 57 A.L.R.2D 975 ET SEQ. 

FN13  SEE SOON HING V. CROWLEY, 113 U.S. 703; HENNINGTON V. GEORGIA,
163 U.S. 299; PETIT V. MINNESOTA, 177 U.S. 164; FRIEDMAN V. NEW YORK,
341 U.S. 907; MCGEE V. NORTH CAROLINA, 346 U.S. 802; GUNDAKER CENTRAL
MOTORS, INC., V. GASSERT, 354 U.S. 933; GROCHOWIAK V. PENNSYLVANIA, 358
U.S. 47; ULLNER V. OHIO, 358 U.S. 131; KIDD V. OHIO, 358 U.S. 132. 

FN14  BRANT, JAMES MADISON, THE VIRGINIA REVOLUTIONIST, 245-246. 

FN15  2 THE PAPERS OF THOMAS JEFFERSON 555. 

FN16  3 ELLIOT'S DEBATES (2D ED. 1836) 330. 

FN17  IN JUDEFIND V. STATE, 78 MD. 510, 515, 28 A. 405, 407 (1894),
THE MARYLAND COURT OF APPEALS STATED, "ARTICLE THIRTY-SIX OF OUR
DECLARATION OF RIGHTS GUARANTEES RELIGIOUS LIBERTY; BUT THE MEMBERS OF
THE DISTINGUISHED BODY THAT ADOPTED THAT CONSTITUTION NEVER SUPPOSED
THEY WERE GIVING A DEATH BLOW TO SUNDAY LAWS BY INSERTING THAT
ARTICLE." 

FN18  MR. JUSTICE RUTLEDGE, JOINED BY MR. JUSTICE FRANKFURTER, MR.
JUSTICE JACKSON AND MR. JUSTICE BURTON, FILED A LENGTHY DISSENTING
OPINION IN WHICH THE FIRST AMENDMENT'S HISTORY WAS STUDIED IN DETAIL. 
HE DEFINED THE "ESTABLISHMENT" PROBLEM AS FOLLOWS: 

"COMPULSORY ATTENDANCE UPON RELIGIOUS EXERCISES WENT OUT EARLY IN THE
PROCESS OF SEPARATING CHURCH AND STATE, TOGETHER WITH FORCED OBSERVANCE
OF RELIGIOUS FORMS AND CEREMONIES.  TEST OATHS AND RELIGIOUS
QUALIFICATION FOR OFFICE FOLLOWED LATER.  THESE THINGS NONE DEVOTED TO
OUR GREAT TRADITION OF RELIGIOUS LIBERTY WOULD THINK OF BRINGING BACK. 
HENCE TODAY, APART FROM EFFORTS TO INJECT RELIGIOUS TRAINING OR
EXERCISES AND SECTARIAN ISSUES INTO THE PUBLIC SCHOOLS, THE ONLY
SERIOUS SURVIVING THREAT TO MAINTAINING THAT COMPLETE AND PERMANENT
SEPARATION OF RELIGION AND CIVIL POWER WHICH THE FIRST AMENDMENT
COMMANDS IS THROUGH USE OF THE TAXING POWER TO SUPPORT RELIGION,
RELIGIOUS ESTABLISHMENTS, OR ESTABLISHMENTS HAVING A RELIGIOUS
FOUNDATION WHATEVER THEIR FORM OR SPECIAL RELIGIOUS FUNCTION."  ID., AT
44. 

FN19  "NO PERSON OR PERSONS WITHIN THIS PROVINCE SHALL WORK OR DO ANY
BODILY LABOUR OR OCCUPATION UPON ANY LORDS DAY COMMONLY CALLED SUNDAY,
NOR SHALL COMMAND OR WILFULLY SUFFER OR PERMITT ANY OF HIS OR THEIR
CHILDREN SERVANTS OR SLAVES TO WORK OR LABOUR AS AFORESAID (THE
ABSOLUTE WORKS OF NECESSITY AND MERCY ALLWAYS EXCEPTED) NOR SHALL
SUFFER OR PERMIT ANY OF HIS HER OR THEIR CHILDREN SERVANTS OR SLAVES OR
ANY OTHER UNDER THEIR AUTHORITY TO ABUSE OR PROPHANE THE LORDS DAY BY
DRUNKENNESS, SWEARING GAMING, FOWLING FISHING, HUNTING OR ANY OTHER
SPORTS PASTIMES OR RECREATIONS WHATSOEVER."  ID., AT 426. 

FN20  A 1674 MARYLAND STATUTE PROVIDED, IN PART: 

"THAT NOE ORDINARY KEEPER SHALL FROM AND AFTER THE PUBLICACON HEREOF
DIRECTLY NOR INDIRECTLY UPON THE SABBATH OR LORDS DAY DRAW OR SELL ANY
STRONG LIQUORS NOR PERMIT OR SUFFER IN OR ABOUT THEIR HOUSE OR HOUSES
ANY TIPLING OR GAMING AT CARDS, DICE, NINEPINN PLAYING OR OTHER SUCH
UNLAWFUL EXERCISES WHATSOEVER  ...  ."  2 ARCHIVES OF MARYLAND 414. 

FN21  THIS PURPOSE HAS BEEN ARTICULATED IN VARIOUS WAYS AT DIFFERENT
TIMES.  THE PARLIAMENTARY DEBATES ON THE BRITISH SHOPS (SUNDAY TRADING
RESTRICTION) BILL IN 1936 ARE PARTICULARLY INSTRUCTIVE.   THE SPONSOR
OF THE BILL STATED: 

"I REALISE ALSO THAT THE STATE TO-DAY IS INTERFERING MORE AND MORE
WITH FAMILY LIFE AND MORE AND MORE CONTROLLING THE FAMILY LIBERTY, AND
WERE THIS A BILL TO RESTRICT LIBERTY, AND ABOVE ALL TO RESTRICT THE
LIBERTY OF THE FAMILY, I WOULD NOT BE RESPONSIBLE FOR INTRODUCING IT.
BUT I HOPE TO SHOW TO THE HOUSE THAT IT IS A BILL WHICH IS NECESSARY TO
SECURE THE FAMILY LIFE AND LIBERTY OF HUNDREDS OF THOUSANDS OF OUR
PEOPLE  ...  .  THEY HAVE THE RIGHT TO A HOLIDAY ON SUNDAY, TO BE ABLE
TO REST FROM WORK ON THAT DAY AND TO GO OUT INTO THE PARKS OR INTO THE
COUNTRY ON A SUMMER DAY.  THAT IS THE LIBERTY FOR WHICH THEY ARE
ASKING, AND THAT IS THE LIBERTY WHICH THIS BILL WOULD GIVE TO THEM." 
308 PARLIAMENTARY DEBATES, COMMONS 2157-2158. 

ANOTHER MEMBER STATED: 

"AS A FAMILY MAN LET ME SAY THAT MY FAMILY LIFE WOULD BE UNDULY
DISTURBED IF ANY MEMBER HAD HIS SUNDAY ON A TUESDAY.  THE VALUE OF A
SUNDAY IS THAT EVERYBODY IN THE FAMILY IS AT HOME ON THE SAME DAY. 
WHAT IS THE USE OF TALKING ABOUT A SIX-DAY WORKING WEEK IN WHICH SIX
MEMBERS OF A FAMILY WOULD EACH HAVE HIS DAY OF REST ON A DIFFERENT DAY
OF THE WEEK?"  ID., AT 2198. 

REPORTS OF THE INTERNATIONAL LABOUR CONFERENCES ARE ALSO REVEALING: 

"SOCIAL CUSTOM REQUIRES THAT THE SAME REST-DAY SHOULD AS FAR AS
POSSIBLE BE ACCORDED TO THE MEMBERS OF THE SAME WORKING FAMILY AND TO
THE WORKING CLASS COMMUNITY AS A WHOLE.  IT IS A FACT THAT ORIGINALLY
RELIGIOUS MOTIVES DETERMINED THE REST-DAY AND THAT THE TRADITION THUS
ESTABLISHED HAS SUBSEQUENTLY BEEN MAINTAINED BY LAW.  IT APPEARS TO BE
A UNIVERSAL RULE THAT WORKERS IN THE SAME AREA OR IN THE SAME COUNTRY
HAVE THE SAME REST-DAY, AND THAT THE REST-DAY COINCIDES WITH THE DAY
ESTABLISHED BY TRADITION OR CUSTOM; AND THE INTERNATIONAL LABOUR OFFICE
PROPOSES THAT THIS RULE SHOULD BE MAINTAINED."  REP. VII, INTERNATIONAL
LABOUR CONFERENCE, 3D SESS.  1921, 127-128. 

"A STUDY OF NATIONAL STANDARDS SHOWS THAT THE MOST USUAL PRACTICE IS
TO GRANT THE WEEKLY REST COLLECTIVELY ON SPECIFIED DAYS OF THE WEEK. 
THIS TENDENCY TO ENSURE THAT THE WEEKLY REST IS TAKEN AT THE SAME TIME
BY ALL WORKERS ON THE DAY ESTABLISHED BY TRADITION OR CUSTOM HAS AN
OBVIOUS SOCIAL PURPOSE, NAMELY TO ENABLE THE WORKERS TO TAKE PART IN
THE LIFE OF THE COMMUNITY AND IN THE SPECIAL FORMS OF RECREATION WHICH
ARE AVAILABLE ON CERTAIN DAYS."  REP.  VII(1), INTERNATIONAL LABOUR
CONFERENCE, 39TH SESS. 1956, 24. 

FN22  THE CONSTITUTION ITSELF PROVIDES FOR A SUNDAY EXCEPTION IN THE
CALCULATION OF THE TEN DAYS FOR PRESIDENTIAL VETO.  U.S. CONST., ART.
I, SEC. 7. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE HARLAN,
SEE POST, P. 459. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 561. 

      APPENDIX TO OPINION OF THE COURT. 

            MD. ANN. CODE, ART. 27. 

          "SABBATH BREAKING. 

"SEC. 492.  - WORKING ON SUNDAY; PERMITTING CHILDREN OR SERVANTS TO
GAME, FISH, HUNT, ETC. - NO PERSON WHATSOEVER SHALL WORK OR DO ANY
BODILY LABOR ON THE LORD'S DAY, COMMONLY CALLED SUNDAY; AND NO PERSON
HAVING CHILDREN OR SERVANTS SHALL COMMAND, OR WITTINGLY OR WILLINGLY
SUFFER ANY OF THEM TO DO ANY MANNER OF WORK OR LABOR ON THE LORD'S DAY
(WORKS OF NECESSITY AND CHARITY ALWAYS EXCEPTED), NOR SHALL SUFFER OR
PERMIT ANY CHILDREN OR SERVANTS TO PROFANE THE LORD'S DAY BY GAMING,
FISHING, FOWLING, HUNTING OR UNLAWFUL PASTIME OR RECREATION; AND EVERY
PERSON TRANSGRESSING THIS SECTION AND BEING HEREOF CONVICTED BEFORE A
JUSTICE OF THE PEACE SHALL FORFEIT FIVE DOLLARS, TO BE APPLIED TO THE
USE OF THE COUNTY." 

"SEC. 509.  - BEACHES, AMUSEMENT PARKS, PICNIC GROVES, ETC., IN ANNE
ARUNDEL COUNTY.  - IT SHALL BE LAWFUL TO OPERATE, WORK AT, OR BE
EMPLOYED IN THE OCCUPATIONS OF OPERATING ANY BATHING BEACH, BATHHOUSE,
AMUSEMENT PARK, DANCING SALOON, THE SALE OR SELLING OF ANY NOVELTIES,
SOUVENIRS, ACCESSORIES, OR OTHER MERCHANDISE ESSENTIAL TO, OR
CUSTOMARILY SOLD AT, OR INCIDENTAL TO, THE OPERATION OF THE AFORESAID
OCCUPATIONS AND BUSINESSES, AT RETAIL, PICNIC GROVES, AMUSEMENTS,
GAMES, AMUSEMENT RIDES, AMUSEMENT DEVICES, ENTERTAINMENTS, SHOWS AND
THE HIRING OR RENTING OF BOATS, TABLES, CHAIRS, BEACH UMBRELLAS, ON THE
FIRST DAY OF THE WEEK, COMMONLY CALLED SUNDAY, WITHIN ANNE ARUNDEL
COUNTY, AND SECS. 492, 521 AND 522 OF THIS ARTICLE ARE REPEALED, IN SO
FAR AND TO THE EXTENT THAT THEY PROHIBIT THE OPERATING OF AND/OR THE
WORKING OF OR EMPLOYMENT OF PERSONS IN THE OPERATION OF ANY BATHING
BEACH, BATHHOUSE, AMUSEMENT PARK, DANCING SALOON, THE SALE OR SELLING
AT RETAIL OF ANY MERCHANDISE, ESSENTIAL TO OR CUSTOMARILY SOLD OR
INCIDENTAL TO THE OPERATION OF THE AFORESAID OCCUPATIONS OR BUSINESSES,
PICNIC GROVES, AMUSEMENTS, GAMES, AMUSEMENT RIDES, AMUSEMENT DEVICES,
ENTERTAINMENTS, SHOWS, AND THE HIRING AND RENTING OF BOATS, TABLES,
CHAIRS, BEACH UMBRELLAS, ON THE FIRST DAY OF THE WEEK, COMMONLY CALLED
SUNDAY, IN ANNE ARUNDEL COUNTY." 

"SEC. 521.  - SALE, ETC., OF MERCHANDISE ON SUNDAY; EXCEPTIONS. 

"(A)  SUNDAY SALES OF MERCHANDISE PROHIBITED; EXCEPTED ARTICLES.  -
NO PERSON IN THIS STATE SHALL SELL, DISPOSE OF, BARTER, OR DEAL IN, OR
GIVE AWAY ANY ARTICLES OF MERCHANDISE ON SUNDAY, EXCEPT RETAILERS, WHO
MAY SELL AND DELIVER ON SAID DAY TOBACCO, CIGARS, CIGARETTES, CANDY,
SODAS AND SOFT DRINKS, ICE, ICE CREAM, ICES AND OTHER CONFECTIONERY,
MILK, BREAD, FRUITS, GASOLINE, OILS AND GREASES. 

"(B)  ADDITIONAL EXCEPTED ARTICLES IN ANNE ARUNDEL COUNTY; CERTAIN
ESTABLISHMENTS EXCEPTED.  - IN ANNE ARUNDEL COUNTY, IN ADDITION TO THE
ARTICLES OF MERCHANDISE HEREINBEFORE MENTIONED, RETAILERS MAY SELL,
BARTER, DEAL IN, AND DELIVER ON SUNDAY THE FOLLOWING ARTICLES OF
MERCHANDISE:  BUTTER, EGGS, CREAM, SOAP AND OTHER DETERGENTS,
DISINFECTANTS, VEGETABLES, MEATS, AND ALL OTHER FOOD OR FOOD STUFFS
PREPARED OR INTENDED FOR HUMAN CONSUMPTION, AUTOMOBILE ACCESSORIES AND
PARTS, BOATING AND FISHING ACCESSORIES, ARTIFICIAL AND NATURAL FLOWERS
AND SHRUBS, TOILET GOODS, HOSPITAL SUPPLIES, THERMOMETERS, CAMERA
FILMS, SOUVENIRS, SURGICAL INSTRUMENTS, RUBBER GOODS, PAPER GOODS,
DRUGS, MEDICINES, PATENT MEDICINES, AND ALL OTHER ARTICLES USED FOR THE
RELIEF OF PAIN OR PRESCRIBED BY A PHYSICIAN; PROVIDED, HOWEVER, THAT
NOTHING IN THIS SUBTITLE SHALL BE CONSTRUED TO PREVENT THE OPERATION OF
ANY RETAIL ESTABLISHMENT ON SUNDAY, THE OPERATION OF WHICH DOES NOT
ENTAIL THE EMPLOYMENT OF MORE THAN ONE PERSON, NOT INCLUDING THE OWNER
OR PROPRIETOR. 

"(C)  PENALTY FOR VIOLATION; SECOND AND SUBSEQUENT OFFENSES;
REVOCATION OF LICENSE.  - ANY PERSON VIOLATING ANY ONE OF THE
PROVISIONS OF THIS SECTION SHALL BE LIABLE TO INDICTMENT IN ANY COURT
IN THIS STATE HAVING CRIMINAL JURISDICTION, AND UPON CONVICTION THEREOF
SHALL BE FINED A SUM OF NOT LESS THAN TWENTY NOR MORE THAN FIFTY
DOLLARS, IN THE DISCRETION OF THE COURT, FOR THE FIRST OFFENSE, AND IF
CONVICTED A SECOND TIME FOR A VIOLATION OF THIS SECTION, THE PERSON OR
PERSONS SO OFFENDING SHALL BE FINED A SUM NOT LESS THAN $50 NOR MORE
THAN $500, AND BE IMPRISONED FOR NOT LESS THAN 10 NOR MORE THAN 30
DAYS, IN THE DISCRETION OF THE COURT, AND HIS, HER OR THEIR LICENSE, IF
ANY WAS ISSUED, SHALL BE DECLARED NULL AND VOID BY THE JUDGE OF SAID
COURT; AND IT SHALL NOT BE LAWFUL FOR SUCH PERSON OR PERSONS TO OBTAIN
ANOTHER LICENSE FOR THE PERIOD OF TWELVE MONTHS FROM THE TIME OF SUCH
CONVICTION, NOR SHALL A LICENSE BE OBTAINED BY ANY OTHER PERSON OR
PERSONS TO CARRY ON SAID BUSINESS ON THE PREMISES OR ELSEWHERE, IF THE
PERSON, SO AS AFORESAID CONVICTED, HAS ANY INTEREST WHATEVER THEREIN,
OR SHALL DERIVE ANY PROFIT WHATEVER THEREFROM; AND IN CASE OF BEING
CONVICTED MORE THAN TWICE FOR A VIOLATION OF THIS SECTION, SUCH PERSON
OR PERSONS ON EACH OCCASION SHALL BE IMPRISONED FOR NOT LESS THAN
THIRTY NOR MORE THAN SIXTY DAYS, AND FINED A SUM NOT LESS THAN DOUBLE
THAT IMPOSED ON SUCH PERSON OR PERSONS ON THE LAST PRECEDING
CONVICTION; AND HIS, HER OR THEIR LICENSE, IF ANY WAS ISSUED, SHALL BE
DECLARED NULL AND VOID BY THE COURT, AND NO NEW LICENSE SHALL BE ISSUED
TO SUCH PERSON OR PERSONS FOR A PERIOD OF TWO YEARS FROM THE TIME OF
SUCH CONVICTION, NOR TO ANYONE ELSE TO CARRY ON SAID BUSINESS WHEREIN
HE OR SHE IS IN ANYWISE INTERESTED, AS BEFORE PROVIDED FOR THE SECOND
VIOLATION OF THE PROVISIONS OF THIS SECTION; ALL THE FINES TO BE
IMPOSED UNDER THIS SECTION SHALL BE PAID TO THE STATE. 

"(D)  APOTHECARIES:  SALE OF NEWSPAPERS AND PERIODICALS.  - THIS
ON SUNDAY DRUGS, MEDICINES, AND PATENT MEDICINES AS ON WEEK DAYS; AND
THIS SECTION SHALL NOT APPLY TO THE SALE OF NEWSPAPERS AND
PERIODICALS. 

"SEC. 522.  - KEEPING OPEN OR USING DANCING SALOON, OPERA HOUSE,
TENPIN ALLEY, BARBER SALOON OR BALL ALLEY ON SUNDAY.  - IT SHALL NOT BE
LAWFUL TO KEEP OPEN OR USE ANY DANCING SALOON, OPERA HOUSE, TENPIN
ALLEY, BARBER SALOON OR BALL ALLEY WITHIN THIS STATE ON THE SABBATH
DAY, COMMONLY CALLED SUNDAY; AND ANY PERSON OR PERSONS, OR BODY POLITIC
OR CORPORATE, WHO SHALL VIOLATE ANY PROVISION OF THIS SECTION, OR CAUSE
OR KNOWINGLY PERMIT THE SAME TO BE VIOLATED BY A PERSON OR PERSONS IN
HIS, HER OR ITS EMPLOY SHALL BE LIABLE TO INDICTMENT IN ANY COURT OF
THIS STATE HAVING CRIMINAL JURISDICTION, AND UPON CONVICTION THEREOF
SHALL BE FINED A SUM NOT LESS THAN FIFTY DOLLARS NOR MORE THAN ONE
HUNDRED DOLLARS, IN THE DISCRETION OF THE COURT, FOR THE FIRST OFFENSE;
AND IF CONVICTED A SECOND TIME FOR A VIOLATION OF THIS SECTION, THE
PERSON OR PERSONS, OR BODY POLITIC OR CORPORATE SHALL BE FINED A SUM
NOT LESS THAN ONE HUNDRED NOR MORE THAN FIVE HUNDRED DOLLARS; AND IF A
NATURAL PERSON SHALL BE IMPRISONED, NOT LESS THAN TEN NOR MORE THAN
THIRTY DAYS IN THE DISCRETION OF THE COURT; AND IN THE CASE OF ANY
CONVICTION OR CONVICTIONS UNDER THIS SECTION SUBSEQUENT TO THE SECOND,
SUCH PERSON OR PERSONS, BODY POLITIC OR CORPORATE SHALL BE FINED ON
EACH OCCASION A SUM AT LEAST DOUBLE THAT IMPOSED UPON HIM, HER, THEM OR
IT ON THE LAST PRECEDING CONVICTION; AND IF A NATURAL PERSON, SHALL BE
IMPRISONED NOT LESS THAN THIRTY NOR MORE THAN SIXTY DAYS IN THE
DISCRETION OF THE COURT; ALL FINES TO BE IMPOSED UNDER THIS SECTION
SHALL BE PAID TO THE STATE."                                 MD. ANN.
CODE, ART. 2B. 

"SEC. 28.  - ANNE ARUNDEL COUNTY. 

"(A)  SPECIAL SUNDAY LICENSES.  - (1)  NOTWITHSTANDING ANY OTHER
PROVISION OF THIS ARTICLE, NO LICENSE FOR SALE OF ALCOHOLIC BEVERAGES
ISSUED BY THE BOARD OF LICENSE COMMISSIONERS FOR ANNE ARUNDEL COUNTY
(EXCEPT 'SPECIAL LICENSES' PROVIDED FOR IN SEC. 22 OF THIS ARTICLE)
SHALL BE DEEMED TO NOR SHALL IT PERMIT OR AUTHORIZE THE HOLDER THEREOF
TO SELL ANY ALCOHOLIC BEVERAGES IN ANNE ARUNDEL COUNTY AFTER 2 A.M. ON
SUNDAYS, EXCEPT AS HEREINAFTER PROVIDED. 

"(2)  ANY PERSON HOLDING A LICENSE FOR THE SALE OF ALCOHOLIC
BEVERAGES IN ANNE ARUNDEL COUNTY (EXCEPT PERSONS HOLDING ANY CLASS BP,
WP, LP, OR LT LICENSE, 'PACKAGE GOODS - OFF SALE LICENSE,' 'SIX DAY
TAVERN LICENSE,' OR 'SPECIAL LICENSES') ISSUED BY THE BOARD OF LICENSE
COMMISSIONERS FOR ANNE ARUNDEL COUNTY, SHALL, UPON APPLICATION MADE AS
FOR NEW LICENSES AND APPROVAL THEREOF BY THE BOARD OF LICENSE
COMMISSIONERS FOR ANNE ARUNDEL COUNTY, AS PROVIDED FOR BY SECS. 60 AND
67(C) OF THIS ARTICLE, BE ISSUED A LICENSE TO BE KNOWN AS A 'SPECIAL
SUNDAY LICENSE,' UPON PAYMENT OF THE FEE THEREFOR AS PROVIDED HEREIN. 

"(3)  SUCH 'SPECIAL SUNDAY LICENSE' SHALL AUTHORIZE THE HOLDER
THEREOF TO SELL ALCOHOLIC BEVERAGES OF THE SAME KIND, AND SUBJECT TO
THE SAME LIMITATIONS AS TO HOURS, ALCOHOLIC CONTENT OF THE BEVERAGES TO
BE SOLD THEREUNDER, RESTRICTIONS AND PROVISIONS, AS GOVERN SUCH OTHER
LICENSE FOR THE SALE OF ALCOHOLIC BEVERAGES, ISSUED TO AND HELD BY THE
HOLDER OF SUCH 'SPECIAL SUNDAY LICENSE,' ON EACH SUNDAY.  NO 'SPECIAL
SUNDAY LICENSE' SHALL BE ISSUED TO ANY PERSON WHO DOES NOT HOLD AN
ALCOHOLIC BEVERAGE LICENSE OF SOME OTHER CLASS ISSUED BY THE BOARD OF
LICENSE COMMISSIONERS FOR ANNE ARUNDEL COUNTY." 

"SEC. 90 - SUNDAYS.  - (A)  BAR AND COUNTER SALES.  - (1)  NO RETAIL
DEALER HOLDING A CLASS B OR C LICENSE SHALL BE PERMITTED TO SELL ANY
ALCOHOLIC BEVERAGE AT A BAR OR COUNTER ON SUNDAY. 

"(2)  PROVIDED, THAT IN ANNE ARUNDEL COUNTY IT SHALL BE LAWFUL TO
SELL, VEND, SERVE, DELIVER AND/OR CONSUME ANY ALCOHOLIC BEVERAGES
PERMITTED BY LAW TO BE SOLD IN THE FIRST, SECOND, THIRD, FOURTH, FIFTH,
SEVENTH AND EIGHTH DISTRICTS OF ANNE ARUNDEL COUNTY AT ANY BAR OR
COUNTER ON ANY DAY ON WHICH THE SALE OF ALCOHOLIC BEVERAGES IS
PERMITTED BY LAW. 

"(B) GENERAL RESTRICTIONS.  - (1)  IN THE JURISDICTIONS IN WHICH THIS
SUBSECTION IS APPLICABLE, IT SHALL BE UNLAWFUL FOR ANYONE TO SELL OR
FOR ANY LICENSED DEALER TO DELIVER, GIVE AWAY OR OTHERWISE DISPOSE OF
ANY ALCOHOLIC BEVERAGES ON SUNDAY.  ANY PERSON SELLING OR ANY LICENSED
DEALER DELIVERING, GIVING AWAY OR OTHERWISE DISPOSING OF SUCH BEVERAGES
IN SUCH JURISDICTIONS ON SUNDAY SHALL BE GUILTY OF A MISDEMEANOR AND,
UPON CONVICTION THEREOF, SHALL BE FINED NOT EXCEEDING FIFTY DOLLARS
($50.00) FOR THE FIRST OFFENSE AND FOR EACH SUCCEEDING OFFENSE SHALL BE
FINED NOT EXCEEDING ONE HUNDRED DOLLARS ($100.00), OR IMPRISONED IN THE
COUNTY JAIL FOR NOT MORE THAN THIRTY (30) DAYS, OR BE BOTH FINED AND
IMPRISONED, IN THE DISCRETION OF THE COURT. 

"(2)  THIS SUBSECTION SHALL BE APPLICABLE AND HAVE EFFECT IN
CAROLINE, CARROLL, CECIL, DORCHESTER, GARRETT, HARFORD, KENT, QUEEN
ANNE'S, SOMERSET, TALBOT, WASHINGTON, WICOMICO AND WORCESTER COUNTIES,
PROVIDED THAT IT SHALL NOT APPLY TO OR AFFECT SPECIAL CLASS C LICENSES
ISSUED UNDER THE PROVISIONS OF THIS ARTICLE, NOR SHALL IT APPLY TO
SPECIAL CLASS C LICENSES ISSUED IN WASHINGTON COUNTY FOR TEMPORARY
USE." 

SEPARATE OPINION OF MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN
JOINS.* 

*NOTE:  THIS OPINION APPLIES ALSO TO NO. 36, TWO GUYS FROM HARRISON
ALLENTOWN, INC., V. MCGINLEY, DISTRICT ATTORNEY, LEHIGH COUNTY,
PENNSYLVANIA, ET AL., POST, P. 582; NO. 67, BRAUNFELD ET AL. V. BROWN,
COMMISSIONER OF POLICE OF PHILADELPHIA, ET AL., POST, P. 599; AND NO.
11, GALLAGHER, CHIEF OF POLICE OF SPRINGFIELD, MASSACHUSETTS, ET AL. V.
CROWN KOSHER SUPER MARKET, INC., ET AL., POST, P. 617. 

SO DEEPLY DO THE ISSUES RAISED BY THESE CASES CUT THAT IT IS NOT
SURPRISING THAT NO ONE OPINION CAN WHOLLY EXPRESS THE VIEWS EVEN OF ALL
THE MEMBERS OF THE COURT WHO JOIN IN ITS RESULT.  INDIVIDUAL OPINIONS
IN CONSTITUTIONAL CONTROVERSIES HAVE BEEN THE PRACTICE THROUGHOUT THE
COURT'S HISTORY.*  SUCH EXPRESSION OF DIFFERENCES IN VIEW OR EVEN IN
EMPHASIS CONVERGING TOWARD THE SAME RESULT MAKES FOR THE CLARITY OF
CANDOR AND THEREBY ENHANCES THE AUTHORITY OF THE JUDICIAL PROCESS. 

*"IN PURSUANCE OF MY PRACTICE IN GIVING AN OPINION ON ALL
CONSTITUTIONAL QUESTIONS, I MUST PRESENT MY VIEWS ON THIS."  MR.
JUSTICE JOHNSON, CONCURRING, IN CHEROKEE NATION V. GEORGIA, 5 PET. 1,
20.  SEE MR. JUSTICE STORY, DISSENTING, IN BRISCOE V. BANK OF THE
COMMONWEALTH OF KENTUCKY, 11 PET. 257, 329; MR. CHIEF JUSTICE TANEY,
DISSENTING, RHODE ISLAND V. MASSACHUSETTS, 12 PET. 657, 752.  AND SEE
MR. JUSTICE BRADLEY, CONCURRING, IN THE LEGAL TENDER CASES, 12 WALL,
457, 554:  "I  ...  SHOULD FEEL THAT IT WAS OUT OF PLACE TO ADD
ANYTHING FURTHER ON THE SUBJECT WERE IT NOT FOR ITS GREAT IMPORTANCE. 
ON A CONSTITUTIONAL QUESTION INVOLVING THE POWERS OF THE GOVERNMENT IT
IS PROPER THAT EVERY ASPECT OF IT, AND EVERY CONSIDERATION BEARING UPON
IT, SHOULD BE PRESENTED, AND THAT NO MEMBER OF THE COURT SHOULD
HESITATE TO EXPRESS HIS VIEWS." 

FOR ME CONSIDERATIONS ARE DETERMINATIVE HERE WHICH CALL FOR SEPARATE
STATEMENT.  THE LONG HISTORY OF SUNDAY LEGISLATION, SO DECISIVE IF WE
ARE TO VIEW THE STATUTES NOW ATTACKED IN A PERSPECTIVE WIDER THAN THAT
WHICH IS FURNISHED BY OUR OWN NECESSARILY LIMITED OUTLOOK, CANNOT BE
CONVEYED BY A PARTIAL RECITAL OF ISOLATED INSTANCES OR EVENTS.  THE
IMPORTANCE OF THAT HISTORY DERIVES FROM ITS CONTINUITY AND FULLNESS -
FROM THE MASSIVE TESTIMONY WHICH IT BEARS TO THE EVOLUTION OF STATUTES
CONTROLLING SUNDAY LABOR AND TO THE FORCES WHICH HAVE, DURING THREE
HUNDRED YEARS OF ANGLO-AMERICAN HISTORY AT THE LEAST, CHANGED THOSE
LAWS, TRANSMUTED THEM, MADE THEM THE VEHICLE OF MIXED AND COMPLICATED
ASPIRATIONS.  SINCE I FIND IN THE HISTORY OF THESE STATUTES INSIGHTS
CONTROLLINGLY RELEVANT TO THE CONSTITUTIONAL ISSUES BEFORE US, I AM
CONSTRAINED TO SET THAT HISTORY FORTH IN DETAIL.  AND I ALSO DEEM IT
INCUMBENT TO STATE HOW I ARRIVE AT CONCURRENCE WITH THE CHIEF JUSTICE'S
PRINCIPAL CONCLUSIONS WITHOUT DRAWING ON EVERSON V. BOARD OF EDUCATION,
330 U.S. 1. 

                                             I. 

BECAUSE THE LONG COLONIAL STRUGGLE FOR DISESTABLISHMENT - THE
STRUGGLE TO FREE ALL MEN, WHATEVER THEIR THEOLOGICAL VIEWS, FROM STATE
COMPELLED OBLIGATION TO ACKNOWLEDGE AND SUPPORT STATE-FAVORED FAITHS -
MADE INDISPUTABLY FUNDAMENTAL TO OUR AMERICAN CULTURE THE PRINCIPLE
THAT THE ENFORCEMENT OF RELIGIOUS BELIEF AS SUCH IS NO LEGITIMATE
CONCERN OF CIVIL GOVERNMENT, THIS COURT HAS HELD THAT THE FOURTEENTH
AMENDMENT EMBODIES AND APPLIES AGAINST THE STATES FREEDOMS THAT ARE
LOOSELY INDICATED BY THE NOT RIGIDLY PRECISE BUT REVEALING PHRASE
"SEPARATION OF CHURCH AND STATE."  ILLINOIS EX REL. MCCOLLUM V. BOARD
OF EDUCATION, 333 U.S. 203.  THE GENERAL PRINCIPLES OF CHURCH-STATE
SEPARATION WERE FOUND TO BE INCLUDED IN THE AMENDMENT'S DUE PROCESS
CLAUSE IN VIEW OF THE MEANING WHICH THE PRESUPPOSITIONS OF OUR SOCIETY
INFUSE INTO THE CONCEPT OF "LIBERTY" PROTECTED BY THE CLAUSE.  THIS IS
THE SOURCE OF THE LIMITATIONS IMPOSED UPON THE STATES.  TO THE EXTENT
THAT THOSE LIMITATIONS ARE AKIN TO THE RESTRICTIONS WHICH THE FIRST
AMENDMENT PLACES UPON THE ACTION OF THE CENTRAL GOVERNMENT, IT IS
BECAUSE - AS WITH THE FREEDOM OF THOUGHT AND SPEECH OF WHICH MR.
JUSTICE CARDOZO SPOKE IN PALKO V. CONNECTICUT, 302 U.S. 319 - IT IS
ACCURATE TO SAY CONCERNING THE PRINCIPLE THAT A GOVERNMENT MUST NEITHER
ESTABLISH NOR SUPPRESS RELIGIOUS BELIEF, THAT "WITH RARE ABERRATIONS A
PERVASIVE RECOGNITION OF THAT TRUTH CAN BE TRACED IN OUR HISTORY,
POLITICAL AND LEGAL."  ID., AT 327. 

BUT THE SEVERAL OPINIONS IN EVERSON AND MCCOLLUM, AND IN ZORACH V.
CLAUSON, 343 U.S. 306, MAKE SUFFICIENTLY CLEAR THAT "SEPARATION" IS NOT
A SELF-DEFINING CONCEPT.  "AGREEMENT, IN THE ABSTRACT, THAT THE FIRST
AMENDMENT WAS DESIGNED TO ERECT A 'WALL OF SEPARATION BETWEEN CHURCH
AND STATE,' DOES NOT PRECLUDE A CLASH OF VIEWS AS TO WHAT THE WALL
SEPARATES."  ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION, SUPRA, AT
213 (CONCURRING OPINION).  BY ITS NATURE, RELIGION - IN THE
COMPREHENSIVE SENSE IN WHICH THE CONSTITUTION USES THAT WORD - IS AN
ASPECT OF HUMAN THOUGHT AND ACTION WHICH PROFOUNDLY RELATES THE LIFE OF
MAN TO THE WORLD IN WHICH HE LIVES.  RELIGIOUS BELIEFS PERVADE, AND
RELIGIOUS INSTITUTIONS HAVE TRADITIONALLY REGULATED, VIRTUALLY ALL
HUMAN ACTIVITY.  IT IS A POSTULATE OF AMERICAN LIFE, REFLECTED
SPECIFICALLY IN THE FIRST AMENDMENT TO THE CONSTITUTION BUT NOT THERE
ALONE, THAT THOSE BELIEFS AND INSTITUTIONS SHALL CONTINUE, AS THE NEEDS
AND LONGINGS OF THE PEOPLE SHALL INSPIRE THEM, TO EXIST, TO FUNCTION,
TO GROW, TO WITHER, AND TO EXERT WITH WHATEVER INNATE STRENGTH THEY MAY
CONTAIN THEIR MANY INFLUENCES UPON MEN'S CONDUCT, FREE OF THE DICTATES
AND DIRECTIONS OF THE STATE.  HOWEVER, THIS FREEDOM DOES NOT AND CANNOT
FURNISH THE ADHERENTS OF RELIGIOUS CREEDS ENTIRE INSULATION FROM EVERY
CIVIC OBLIGATION.  AS THE STATE'S INTEREST IN THE INDIVIDUAL BECOMES
MORE COMPREHENSIVE, ITS CONCERNS AND THE CONCERNS OF RELIGION PERFORCE
OVERLAP.  STATE CODES AND THE DICTATES OF FAITH TOUCH THE SAME
ACTIVITIES.  BOTH AIM AT HUMAN GOOD, AND IN THEIR RESPECTIVE VIEWS OF
WHAT IS GOOD FOR MAN THEY MAY CONCUR OR THEY MAY CONFLICT.  NO
CONSTITUTIONAL COMMAND WHICH LEAVES RELIGION FREE CAN AVOID THIS
QUALITY OF INTERPLAY. 

INNUMERABLE CIVIL REGULATIONS ENFORCE CONDUCT WHICH HARMONIZES WITH
RELIGIOUS CANONS.  STATE PROHIBITIONS OF MURDER, THEFT AND ADULTERY
REINFORCE COMMANDS OF THE DECALOGUE.  NOR DO SUCH REGULATIONS, IN THEIR
COINCIDENCE WITH TENETS OF FAITH, ALWAYS SUPPORT EQUALLY THE BELIEFS OF
ALL RELIGIOUS SECTS:  WITNESS THE CIVIL LAWS FORBIDDING USURY AND
ENFORCING MONOGAMY.  BECAUSE THESE LAWS SERVE ENDS WHICH ARE WITHIN THE
APPROPRIATE SCOPE OF SECULAR STATE INTEREST, THEY MAY BE ENFORCED
AGAINST THOSE WHOSE RELIGIOUS BELIEFS DO NOT PROSCRIBE, AND EVEN
SANCTION, THE ACTIVITY WHICH THE LAW CONDEMNS.  REYNOLDS V. UNITED
STATES, 98 U.S. 145; DAVIS V. BEASON, 133 U.S. 333; CLEVELAND V. UNITED
STATES, 329 U.S. 14. 

THIS IS NOT TO SAY THAT GOVERNMENTAL REGULATIONS WHICH FIND SUPPORT
IN THEIR APPROPRIATENESS TO THE ACHIEVEMENT OF SECULAR, CIVIL ENDS ARE
INVARIABLY VALID UNDER THE FIRST OR FOURTEENTH AMENDMENT, WHATEVER
THEIR EFFECTS IN THE SPHERE OF RELIGION.  IF THE VALUE TO SOCIETY OF
ACHIEVING THE OBJECT OF A PARTICULAR REGULATION IS DEMONSTRABLY
OUTWEIGHED BY THE IMPEDIMENT TO WHICH THE REGULATION SUBJECTS THOSE
WHOSE RELIGIOUS PRACTICES ARE CURTAILED BY IT, OR IF THE OBJECT SOUGHT
BY THE REGULATION COULD WITH EQUAL EFFECT BE ACHIEVED BY ALTERNATIVE
MEANS WHICH DO NOT SUBSTANTIALLY IMPEDE THOSE RELIGIOUS PRACTICES, THE
REGULATION CANNOT BE SUSTAINED.  CANTWELL V. CONNECTICUT, 310 U.S.
296.  THIS WAS THE GROUND UPON WHICH THE COURT STRUCK DOWN MUNICIPAL
LICENSE TAXES AS APPLIED TO RELIGIOUS COLPORTEURS IN FOLLETT V. TOWN OF
MCCORMICK, 321 U.S. 573; MURDOCK V. PENNSYLVANIA, 319 U.S. 105, AND
JONES V. OPELIKA, 319 U.S. 103.  IN EACH OF THOSE CASES IT WAS BELIEVED
THAT THE STATE'S NEED FOR REVENUE, WHICH COULD BE SATISFIED BY TAXING
ANY OF A VARIETY OF SOURCES, DID NOT JUSTIFY A LEVY IMPOSED UPON AN
ACTIVITY WHICH IN THE LIGHT OF HISTORY COULD REASONABLY BE VIEWED AS
SACRAMENTAL.  BUT SEE COX V. NEW HAMPSHIRE, 312 U.S. 569, IN WHICH THE
COURT, BALANCING THE PUBLIC BENEFITS SECURED BY A REGULATORY MEASURE
AGAINST THE DEGREE OF IMPAIRMENT OF INDIVIDUAL CONDUCT EXPRESSIVE OF
RELIGIOUS FAITH WHICH IT ENTAILED, SUSTAINED THE PROHIBITION OF AN
ACTIVITY SIMILARLY REGARDED BY ITS PRACTICANTS AS SACRAMENTAL.  AND SEE
PRINCE V. MASSACHUSETTS, 321 U.S. 158. 

WITHIN THE DISCRIMINATING PHRASEOLOGY OF THE FIRST AMENDMENT,
DISTINCTION HAS BEEN DRAWN BETWEEN CASES RAISING "ESTABLISHMENT" AND
"FREE EXERCISE" QUESTIONS.  ANY ATTEMPT TO FORMULATE A BRIGHT-LINE
DISTINCTION IS BOUND TO FOUNDER.  IN VIEW OF THE COMPETITION AMONG
RELIGIOUS CREEDS, WHATEVER "ESTABLISHES" ONE SECT DISADVANTAGES
ANOTHER, AND VICE VERSA.  BUT IT IS POSSIBLE HISTORICALLY, AND
THEREFORE HELPFUL ANALYTICALLY - NO LESS FOR PROBLEMS ARISING UNDER THE
FOURTEENTH AMENDMENT, ILLUMINATED AS THAT AMENDMENT IS BY OUR NATIONAL
EXPERIENCE, THAN FOR PROBLEMS ARISING UNDER THE FIRST - TO ISOLATE IN
GENERAL TERMS THE TWO LARGELY OVERLAPPING AREAS OF CONCERN REFLECTED IN
THE TWO CONSTITUTIONAL PHRASES, "ESTABLISHMENT" AND "FREE EXERCISE,"
(FN1) AND WHICH EMERGE MORE OR LESS CLEARLY FROM THE BACKGROUND OF
EVENTS AND IMPULSES WHICH GAVE THOSE PHRASES BIRTH. 

IN ASSURING THE FREE EXERCISE OF RELIGION, THE FRAMERS OF THE FIRST
AMENDMENT WERE SENSITIVE TO THE THEN RECENT HISTORY OF THOSE
PERSECUTIONS AND IMPOSITIONS OF CIVIL DISABILITY WITH WHICH SECTARIAN
MAJORITIES IN VIRTUALLY ALL OF THE COLONIES HAD VISITED DEVIATION IN
THE MATTER OF CONSCIENCE.  (FN2)  THIS PROTECTION OF UNPOPULAR CREEDS,
HOWEVER, WAS NOT TO BE THE FULL EXTENT OF THE AMENDMENT'S GUARANTEE OF
FREEDOM FROM GOVERNMENTAL INTRUSION IN MATTERS OF FAITH.  THE BATTLE IN
VIRGINIA, HARDLY FOUR YEARS WON, WHERE JAMES MADISON HAD LED THE FORCES
OF DISESTABLISHMENT IN SUCCESSFUL OPPOSITION TO PATRICK HENRY'S
PROPOSED ASSESSMENT BILL LEVYING A GENERAL TAX FOR THE SUPPORT OF
CHRISTIAN TEACHERS, (FN3) WAS A VITAL AND COMPELLING MEMORY IN 1789. 
THE LESSON OF THAT BATTLE, IN THE WORDS OF JEFFERSON'S ACT FOR
ESTABLISHING RELIGIOUS FREEDOM, WHOSE PASSAGE WAS ITS VERBAL
EMBODIMENT, (FN4) WAS "THAT TO COMPEL A MAN TO FURNISH CONTRIBUTIONS OF
MONEY FOR THE PROPAGATION OF OPINIONS WHICH HE DISBELIEVES, IS SINFUL
AND TYRANNICAL; THAT EVEN THE FORCING HIM TO SUPPORT THIS OR THAT
TEACHER OF HIS OWN RELIGIOUS PERSUASION, IS DEPRIVING HIM OF THE
COMFORTABLE LIBERTY OF GIVING HIS CONTRIBUTIONS TO THE PARTICULAR
PASTOR, WHOSE MORALS HE WOULD MAKE HIS PATTERN, AND WHOSE POWERS HE
FEELS MOST PERSUASIVE TO RIGHTEOUSNESS, AND IS WITHDRAWING FROM THE
MINISTRY THOSE TEMPORAL REWARDS, WHICH PROCEEDING FROM AN APPROBATION
OF THEIR PERSONAL CONDUCT, ARE AN ADDITIONAL INCITEMENT TO EARNEST AND
UNREMITTING LABOURS FOR THE INSTRUCTION OF MANKIND  ...  ."  (FN5)
WHAT VIRGINIA HAD LONG PRACTICED, AND WHAT MADISON, JEFFERSON AND
OTHERS FOUGHT TO END, WAS THE EXTENSION OF CIVIL GOVERNMENT'S SUPPORT
TO RELIGION IN A MANNER WHICH MADE THE TWO IN SOME DEGREE
INTERDEPENDENT, AND THUS THREATENED THE FREEDOM OF EACH.  THE PURPOSE
OF THE ESTABLISHMENT CLAUSE WAS TO ASSURE THAT THE NATIONAL LEGISLATURE
WOULD NOT EXERT ITS POWER IN THE SERVICE OF ANY PURELY RELIGIOUS END;
THAT IT WOULD NOT, AS VIRGINIA AND VIRTUALLY ALL OF THE COLONIES HAD
DONE, MAKE OF RELIGION, AS RELIGION, AN OBJECT OF LEGISLATION. 

OF COURSE, THE IMMEDIATE OBJECT OF THE FIRST AMENDMENT'S PROHIBITION
WAS THE ESTABLISHED CHURCH AS IT HAD BEEN KNOWN IN ENGLAND AND IN MOST
OF THE COLONIES.  BUT WITH FORESIGHT THOSE WHO DRAFTED AND ADOPTED THE
WORDS, "CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION," DID NOT LIMIT THE CONSTITUTIONAL PROSCRIPTION TO ANY
PARTICULAR, DATED FORM OF STATE-SUPPORTED THEOLOGICAL VENTURE.  THE
ESTABLISHMENT CLAUSE WITHDREW FROM THE SPHERE OF LEGITIMATE LEGISLATIVE
CONCERN AND COMPETENCE A SPECIFIC, BUT COMPREHENSIVE, AREA OF HUMAN
CONDUCT:  MAN'S BELIEF OR DISBELIEF IN THE VERITY OF SOME
TRANSCENDENTAL IDEA AND MAN'S EXPRESSION IN ACTION OF THAT BELIEF OR
DISBELIEF.  CONGRESS MAY NOT MAKE THESE MATTERS, AS SUCH, THE SUBJECT
OF LEGISLATION, NOR, NOW, MAY ANY LEGISLATURE IN THIS COUNTRY.  NEITHER
THE NATIONAL GOVERNMENT NOR, UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, A STATE MAY, BY ANY DEVICE, SUPPORT BELIEF OR THE
EXPRESSION OF BELIEF FOR ITS OWN SAKE, WHETHER FROM CONVICTION OF THE
TRUTH OF THAT BELIEF, OR FROM CONVICTION THAT BY THE PROPAGATION OF
THAT BELIEF, OR FROM CONVICTION THAT BY THE PROPAGATION OF THAT BELIEF
THE CIVIL WELFARE OF THE STATE IS SERVED, OR BECAUSE A MAJORITY OF ITS
CITIZENS, HOLDING THAT BELIEF, ARE OFFENDED WHEN ALL DO NOT HOLD IT. 

WITH REGULATIONS WHICH HAVE OTHER OBJECTIVES THE ESTABLISHMENT
CLAUSE, AND THE FUNDAMENTAL SEPARATIONIST CONCEPT WHICH IT EXPRESSES,
ARE NOT CONCERNED.  THESE REGULATIONS MAY FALL AFOUL OF THE
CONSTITUTIONAL GUARANTEE AGAINST INFRINGEMENT OF THE FREE EXERCISE OR
OBSERVANCE OF RELIGION.  WHERE THEY DO, THEY MUST BE SET ASIDE AT THE
INSTANCE OF THOSE WHOSE FAITH THEY PREJUDICE.  BUT ONCE IT IS
DETERMINED THAT A CHALLENGED STATUTE IS SUPPORTABLE AS IMPLEMENTING
OTHER SUBSTANTIAL INTERESTS THAN THE PROMOTION OF BELIEF, THE GUARANTEE
PROHIBITING RELIGIOUS "ESTABLISHMENT" IS SATISFIED. 

TO ASK WHAT INTEREST, WHAT OBJECTIVE, LEGISLATION SERVES, OF COURSE,
IS NOT TO PSYCHOANALYZE ITS LEGISLATORS, BUT TO EXAMINE THE NECESSARY
EFFECTS OF WHAT THEY HAVE ENACTED.  IF THE PRIMARY END ACHIEVED BY A
FORM OF REGULATION IS THE AFFIRMATION OR PROMOTION OF RELIGIOUS
DOCTRINE - PRIMARY, IN THE SENSE THAT ALL SECULAR ENDS WHICH IT
PURPORTEDLY SERVES ARE DERIVATIVE FROM, NOT WHOLLY INDEPENDENT OF, THE
ADVANCEMENT OF RELIGION - THE REGULATION IS BEYOND THE POWER OF THE
STATE.  THIS WAS THE CASE IN MCCOLLUM.  OR IF A STATUTE FURTHERS BOTH
SECULAR AND RELIGIOUS ENDS BY MEANS UNNECESSARY TO THE EFFECTUATION OF
THE SECULAR ENDS ALONE - WHERE THE SAME SECULAR ENDS COULD EQUALLY BE
ATTAINED BY MEANS WHICH DO NOT HAVE CONSEQUENCES FOR PROMOTION OF
RELIGION - THE STATUTE CANNOT STAND.  A STATE MAY NOT ENDOW A CHURCH
ALTHOUGH THAT CHURCH MIGHT INCULCATE IN ITS PARISHIONERS MORAL CONCEPTS
DEEMED TO MAKE THEM BETTER CITIZENS, BECAUSE THE VERY RAISON D'ETRE OF
A CHURCH, AS OPPOSED TO ANY OTHER SCHOOL OF CIVILLY SERVICEABLE MORALS,
IS THE PREDICATION OF RELIGIOUS DOCTRINE.  HOWEVER, INASMUCH AS
INDIVIDUALS ARE FREE, IF THEY WILL, TO BUILD THEIR OWN CHURCHES AND
WORSHIP IN THEM, THE STATE MAY GUARD ITS PEOPLE'S SAFETY BY EXTENDING
FIRE AND POLICE PROTECTION TO THE CHURCHES SO BUILT.  IT WAS ON THE
REASONING THAT PARENTS ARE ALSO AT LIBERTY TO SEND THEIR CHILDREN TO
PAROCHIAL SCHOOLS WHICH MEET THE REASONABLE EDUCATIONAL STANDARDS OF
THE STATE, PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, THAT THIS COURT
HELD IN THE EVERSON CASE THAT EXPENDITURE OF PUBLIC FUNDS TO ASSURE
THAT CHILDREN ATTENDING EVERY KIND OF SCHOOL ENJOY THE RELATIVE
SECURITY OF BUSES, RATHER THAN BEING LEFT TO WALK OR HITCHHIKE, IS NOT
AN UNCONSTITUTIONAL "ESTABLISHMENT," EVEN THOUGH SUCH AN EXPENDITURE
MAY CAUSE SOME CHILDREN TO GO TO PAROCHIAL SCHOOLS WHO WOULD NOT
OTHERWISE HAVE GONE.  THE CLOSE DIVISION OF THE COURT IN EVERSON SERVES
TO SHOW WHAT NICE QUESTIONS ARE INVOLVED IN APPLYING TO PARTICULAR
GOVERNMENTAL ACTION THE PROPOSITION, UNDENIABLE IN THE ABSTRACT, THAT
NOT EVERY REGULATION SOME OF WHOSE PRACTICAL EFFECTS MAY FACILITATE THE
OBSERVANCE OF A RELIGION BY ITS ADHERENTS AFFRONTS THE REQUIREMENT OF
CHURCH-STATE SEPARATION. 

IN AN IMPORTANT SENSE, THE CONSTITUTIONAL PROHIBITION OF RELIGIOUS
ESTABLISHMENT IS A PROVISION OF MORE COMPREHENSIVE AVAILABILITY THAN
THE GUARANTEE OF FREE EXERCISE, INSOFAR AS BOTH GIVE CONTENT TO THE
PROHIBITED FUSION OF CHURCH AND STATE.  THE FORMER MAY BE INVOKED BY
THE CORPORATE OPERATOR OF A SEVEN-DAY DEPARTMENT STORE WHOSE STATE
COMPELLED SUNDAY CLOSING INJURIES IT FINANCIALLY - OR BY THE DEPARTMENT
STORE'S EMPLOYEES, WHATEVER THEIR FAITH, WHO ARE CONVICTED FOR
VIOLATION OF A SUNDAY STATUTE - AS WELL AS BY THE ORTHODOX JEWISH
RETAILER OR CONSUMER WHO CLAIMS THAT THE STATUTE PREJUDICES HIM IN HIS
ABILITY TO KEEP HIS FAITH.  BUT IT MUST NOT BE FORGOTTEN THAT THE
QUESTION WHICH THE DEPARTMENT STORE OPERATOR AND EMPLOYEES MAY RAISE IN
THEIR OWN BEHALF IS NARROWER THAN THAT POSED BY THE CASE OF THE
ORTHODOX JEW.  (FN6)  THEIR "ESTABLISHMENT" CONTENTION CAN PREVAIL ONLY
IF THE ABSENCE OF ANY SUBSTANTIAL LEGISLATIVE PURPOSE OTHER THAN A
RELIGIOUS ONE IS MADE TO APPEAR.  SEE SELECTIVE DRAFT LAW CASES, 245
U.S. 366. 

IN THE PRESENT CASES THE SUNDAY RETAIL SELLERS AND THEIR EMPLOYEES
AND CUSTOMERS, IN ATTACKING STATUTES BANNING VARIOUS ACTIVITIES ON A
DAY WHICH MOST CHRISTIAN CREEDS CONSECRATE, DO ASSERT THAT THESE
STATUTES HAVE NO OTHER PURPOSE.  THEY URGE, FIRST, THAT THE
LEGISLATORS' MOTIVES WERE RELIGIOUS.  BUT THE PRIVATE AND UNFORMULATED
INFLUENCES WHICH MAY WORK UPON LEGISLATION ARE NOT OPEN TO JUDICIAL
PROBING.  "THE DECISIONS OF THIS COURT FROM THE BEGINNING LEND NO
SUPPORT WHATEVER TO THE ASSUMPTION THAT THE JUDICIARY MAY RESTRAIN THE
EXERCISE OF LAWFUL POWER ON THE ASSUMPTION THAT A WRONGFUL PURPOSE OR
MOTIVE HAS CAUSED THE POWER TO BE EXERTED."  MCCRAY V. UNITED STATES,
195 U.S. 27, 56.  "INQUIRY INTO THE HIDDEN MOTIVES WHICH MAY MOVE A
LEGISLATURE TO EXERCISE A POWER CONSTITUTIONALLY CONFERRED UPON IT IS
BEYOND THE COMPETENCY OF COURTS."  SONZINSKY V. UNITED STATES, 300 U.S.
506, 513-514.  VEAZIE BANK V. FENNO, 8 WALL.  533; ARIZONA V.
CALIFORNIA, 283 U.S. 423; OKLAHOMA EX REL. PHILLIPS V. GUY F. ATKINSON
CO., 313 U.S. 508.  THESE LITIGANTS ALSO ARGUE, HOWEVER, THAT WHEN THE
STATE STATUTORY PROVISIONS ARE REGARDED IN THEIR LEGISLATIVE CONTEXT
RELIGION IS APPARENT ON THEIR FACE:  THEY POINT TO THE USE OF THE TERMS
"LORD'S DAY" AND "SABBATH" AND "DESECRATION," TO EXCEPTIONS WHOSE HOURS
PERMIT ACTIVITIES ONLY AT TIMES ON SUNDAY WHEN RELIGIOUS SERVICES ARE
CUSTOMARILY NOT HELD, TO EXPLICIT PROHIBITION OF OTHERWISE PERMITTED
ACTIVITY IN THE VICINITY OF CHURCHES, TO REGULATIONS WHICH CONDITION
THE ALLOWANCE OF CONDUCT ON ITS CONSISTENCY WITH THE "DUE OBSERVANCE"
OF THE DAY.  OF COURSE, SINCE THESE VARIOUS PROVISIONS REGARDING
EXEMPTION FROM THE SUNDAY BAN OF CERTAIN RECREATIONAL ACTIVITIES HAVE
NO POSSIBLE APPLICATION TO THE LITIGANTS IN THE PRESENT CASES, THEY ARE
NOT THEMSELVES BEFORE THE COURT, AND THEIR CONSTITUTIONALITY IS NOT NOW
IN ISSUE.  BUT THEY ARE PUT FORWARD AS EVIDENCE OF THE PURPOSE OF THE
STATUTES WHICH ARE ATTACKED HERE, AND AS SUCH WE MAY PROPERLY LOOK TO
THEM, AND ALSO TO THE HISTORY OF THE BODY OF STATE SUNDAY REGULATIONS,
WHICH, IT IS URGED, FURTHER DEMONSTRATES SECTARIAN CREEDAL PURPOSE.  AS
A BASIS FOR APPRAISING THESE ARGUMENTS THAT THE STATUTES ARE RELIGIOUS
LEGISLATION, AND PRELIMINARY TO DETERMINING THE CLAIMS OF INFRINGEMENT
OF CONSCIENCE RAISED IN THE GALLAGHER AND BRAUNFELD CASES, IT IS
NECESSARY TO SURVEY THE LONG HISTORICAL DEVELOPMENT AND PRESENT-DAY
POSITION OF CIVIL SUNDAY REGULATION. 

                             II. 

FOR THESE PURPOSES THE SPAN OF CENTURIES WHICH SAW THE ENUNCIATION OF
THE FOURTH COMMANDMENT, (FN7) CONSTANTINE'S EDICT PROSCRIBING LABOR ON
THE VENERABLE DAY OF THE SUN, (FN8) AND THE SUNDAY PROHIBITIONS OF
CARLOVINGIAN, MEROVINGIAN AND SAXON RULERS, AND LATER OF THE ENGLISH
KINGS OF THE THIRTEENTH AND FOURTEENTH CENTURIES, MAY BE PASSED OVER. 
(FN9)  WHAT IS OF CONCERN HERE IS THE SUNDAY INSTITUTION AS IT EVOLVED
IN MODERN ENGLAND, THE AMERICAN COLONIES, AND THE STATES OF THE UNION
UNDER THE CONSTITUTION.  THE FIRST SIGNIFICANT ENGLISH SUNDAY
REGULATION, FOR THIS PURPOSE, WAS THE STATUTE OF HENRY VI IN 1448
WHICH, AFTER RECITING "THE ABOMINABLE INJURIES AND OFFENCES DONE TO
ALMIGHTY GOD, AND TO HIS SAINTS,  ...  BECAUSE OF FAIRS AND MARKETS
UPON THEIR HIGH AND PRINCIPAL FEASTS,  ...  IN WHICH PRINCIPAL AND
FESTIVAL DAYS, FOR GREAT EARTHY COVETISE, THE PEOPLE IS MORE WILLINGLY
VEXED, AND IN BODILY LABOUR SOILED, THAN IN OTHER  ...  DAYS,  ...  AS
THOUGH THEY DID NOTHING REMEMBER THE HORRIBLE DEFILING OF THEIR SOULS
IN BUYING AND SELLING, WITH MANY DECEITFUL LIES AND FALSE PERJURY, WITH
DRUNKENNESS AND STRIFES, AND SO SPECIFICALLY WITHDRAWING THEMSELVES AND
THEIR SERVANTS FROM DIVINE SERVICE  ...  ," ORDAINED THAT ALL FAIRS AND
MARKETS SHOULD CEASE TO SHOW FORTH GOODS OR MERCHANDISE ON SUNDAYS,
GOOD FRIDAY, AND THE PRINCIPAL FEAST DAYS.  (FN10)  A SHORT-LIVED
ORDINANCE OF EDWARD VI A CENTURY LATER, LIMITING THE BAN ON BODILY
LABOR TO SUNDAYS AND ENUMERATED HOLY DAYS, DEMONSTRATED IN ITS PREAMBLE
A SIMILAR SECTARIAN PURPOSE, (FN11) AND IN 1625 CHARLES I, ANNOUNCING
THAT "THERE IS NOTHING MORE ACCEPTABLE TO GOD THAN THE TRUE AND SINCERE
SERVICE AND WORSHIP OF HIM  ...  AND THAT THE HOLY KEEPING OF THE
LORD'S DAY IS A PRINCIPAL PART OF THE TRUE SERVICE OF GOD," PROHIBITED
ALL MEETINGS OF THE PEOPLE OUT OF THEIR PARISHES FOR SPORTS AND
PASTIMES ON SUNDAY, AND ALL BEAR-BAITING, BULL-BAITING, INTERLUDES,
COMMON PLAYS, AND OTHER UNLAWFUL EXERCISES AND PASTIMES ON THAT DAY. 
(FN12)  SEVERAL YEARS LATER THE SAME KING DECLARED IT REPROACHFUL OF
GOD AND RELIGION, AND HENCE MADE IT UNLAWFUL, FOR BUTCHERS TO SLAUGHTER
OR CARRIERS, DROVERS, WAGGONERS, ETC., TO TRAVEL ON THE LORD'S DAY;
(FN13) THEN, IN 1677, (FN14) "FOR THE BETTER OBSERVATION AND KEEPING
HOLY THE LORD'S DAY," THE STATUTE, 29 CHARLES II, C. 7, WHICH IS STILL
THE BASIC SUNDAY LAW OF BRITAIN, WAS ENACTED:  "THAT ALL AND EVERY
PERSON AND PERSONS WHATSOEVER, SHALL ON EVERY LORD'S DAY APPLY
THEMSELVES TO THE OBSERVATION OF THE SAME, BY EXERCISING THEMSELVES
THEREON IN THE DUTIES OF PIETY AND TRUE RELIGION, PUBLICKLY AND
PRIVATLEY; ...  AND THAT NO TRADESMAN, ARTIFICER, WORKMAN, LABOURER OR
OTHER PERSON WHATSOEVER, SHALL DO OR EXERCISE ANY WORLDY LABOUR,
BUSINESS OR WORK OF THEIR ORDINARY CALLINGS, UPON THE LORD'S DAY, OR
ANY PART THEREOF (WORKS OF NECESSITY AND CHARITY ONLY EXCEPTED;)  ...
AND THAT NO PERSON OR PERSONS WHATSOEVER, SHALL PUBLICKLY CRY, SHEW
FORTH, OR EXPOSE TO SALE, ANY WARES, MERCHANDIZES, FRUIT, HERBS, GOODS
OR CHATTELS WHATSOEVER, UPON THE LORD'S DAY  ...  ."  (FN15)  IN 1781,
A STATUTE, 21 GEO. III, C. 49, RECITING THAT VARIOUS PUBLIC
ENTERTAINMENTS AND EXPLICATIONS OF SCRIPTURAL TEXTS BY INCOMPETENT
PERSONS TENDED "TO THE GREAT ENCOURAGEMENT OF IRRELIGION AND
PROFANENESS," CLOSED ALL ROOMS AND HOUSES IN WHICH PUBLIC
ENTERTAINMENT, AMUSEMENT OR DEBATES, FOR AN ADMISSION CHARGE, WERE
HELD.  (FN16) 

THESE SUNDAY LAWS WERE INDISPUTABLY WORKS OF THE ENGLISH
ESTABLISHMENT.  THEIR PREFATORY LANGUAGE SPOKE THEIR RELIGIOUS
INSPIRATION, (FN17) EXCEPTIONS MADE FROM TIME TO TIME WERE EXPRESSLY
LIMITED TO PRESERVE INVIOLABLE THE HOURS OF THE DIVINE SERVICE, (FN18)
AND IN THEIR ADMINISTRATION A SPIRIT OF INQUISITORIAL PIETY WAS
EVIDENT.  (FN19)  BUT EVEN IN THIS PERIOD OF RELIGIOUS PREDOMINANCE,
NOTES OF A SECONDARY CIVIL PURPOSE COULD BE HEARD.  APART FROM THE
COUNSEL OF THOSE WHO HAD FROM THE TIME OF THE REFORMATION INSISTED THAT
THE FOURTH COMMANDMENT ITSELF EMBODIED A PRECEPT OF SOCIAL RATHER THAN
SACRAMENTAL SIGNIFICANCE, (FN20) CLAIMS WERE ASSERTED IN THE EIGHTEENTH
CENTURY ON BEHALF OF SUNDAY REST, IN PART, IN THE SERVICE OF HEALTH AND
WELFARE.  (FN21)  BLACKSTONE WROTE THAT "  ...  BESIDES THE NOTORIOUS
INDECENCY AND SCANDAL OF PERMITTING ANY SECULAR BUSINESS TO BE PUBLICLY
TRANSACTED ON THAT DAY IN A COUNTRY PROFESSING CHRISTIANITY, AND THE
CORRUPTION OF MORALS WHICH USUALLY FOLLOWS ITS PROFANATION, THE KEEPING
ONE DAY IN THE SEVEN HOLY, AS A TIME OF RELAXATION AND REFRESHMENT AS
WELL AS FOR PUBLIC WORHSIP, IS OF ADMIRABLE SERVICE TO A STATE,
CONSIDERED MERELY AS A CIVIL INSTITUTION.  IT HUMANIZES, BY THE HELP OF
CONVERSATION AND SOCIETY, THE MANNERS OF THE LOWER CLASSES, WHICH WOULD
OTHERWISE DEGENERATE INTO A SORDID FEROCITY AND SAVAGE SELFISHNESS OF
SPIRIT; IT ENABLES THE INDUSTRIOUS WORKMAN TO PURSUE HIS OCCUPATION IN
THE ENSUING WEEK WITH HEALTH AND CHEERFULNESS; IT IMPRINTS ON THE MINDS
OF THE PEOPLE THAT SENSE OF THEIR DUTY TO GOD SO NECESSARY TO MAKE THEM
GOOD CITIZENS, BUT WHICH YET WOULD BE WORN OUT AND DEFACED BY AN
UNREMITTED CONTINUANCE OF LABOR, WITHOUT ANY STATED TIMES OF RECALLING
THEM TO THE WORSHIP OF THEIR MAKER."  (FN22)  IN 1788 THE SCHEDULE TO
THE ACT, 28 GEO. III, C. 48, OBLIGATED MASTER CHIMNEY SWEEPS TO HAVE
THEIR APPRENTICES WASHED AT LEAST ONCE A WEEK, PROVIDING THAT ON SUNDAY
THE MASTER SHOULD SEND THE APPRENTICE TO WORSHIP, SHOULD ALLOW HIM TO
HAVE RELIGIOUS INSTRUCTION, AND SHOULD NOT ALLOW HIM TO WEAR HIS
SWEEPING DRESS; THE ACT ALSO REGULATED THE SWEEPS' HOURS OF WORK.  IN
1832 A COMMONS SELECT COMMITTEE ON THE OBSERVANCE OF THE SABBATH HEARD
THE TESTIMONY OF A MEDICAL DOCTOR AS TO THE PHYSICALLY INJURIOUS
EFFECTS OF SEVEN-DAY UNREMITTED LABOR, (FN23) AND ALTHOUGH THE REPORT
OF THE COMMITTEE REVEALS A PRIMARILY RELIGIOUS CAST OF MIND, IT
DISCLOSES ALSO A SENSITIVITY TO THE PLIGHT OF THE JOURNEYMAN BAKERS,
SEVEN THOUSAND OF WHOM HAD PETITIONED THE HOUSE FOR ONE DAY'S REPOSE
WEEKLY, AND TO THE WISHES OF SHOPKEEPERS AND TRADESMEN FORCED BY
COMPETITION TO WORK ON SUNDAY, ALTHOUGH "MOST DESIROUS OF THE DAY OF
REST."  (FN24)  THE COMMITTEE RECOMMENDED THE ENACTMENT OF SEVERER
SANCTIONS FOR LORD'S DAY VIOLATIONS:  "THE OBJECTS TO BE ATTAINED BY
LEGISLATION MAY BE CONSIDERED TO BE, FIRST, A SOLEMN AND DECENT OUTWARD
OBSERVANCE OF THE LORD'S-DAY, AS THAT PORTION OF THE WEEK WHICH IS SET
APART BY DIVINE COMMAND FOR PUBLIC WORSHIP; AND NEXT, THE SECURING TO
EVERY MEMBER OF THE COMMUNITY WITHOUT ANY EXCEPTION, AND HOWEVER LOW
HIS STATION, THE UNINTERRUPTED ENJOYMENT OF THAT DAY OF REST WHICH HAS
BEEN IN MERCY PROVIDED FOR HIM, AND THE PRIVILEGE OF EMPLOYING IT, AS
WELL IN THE SACRED EXERCISES FOR WHICH IT WAS ORDAINED, AS IN THE
BODILY RELAXATION WHICH IS NECESSARY FOR HIS WELL-BEING, AND WHICH,
THOUGH A SECONDARY END, IS NEVERTHELESS ALSO OF HIGH IMPORTANCE." 
(FN25) 

BUT, WHATEVER THE NATURE OF THE PROPULSIONS UNDERLYING STATE-ENFORCED
SUNDAY LABOR STOPPAGE DURING THESE CENTURIES BEFORE THE TWENTIETH, IT
IS CLEAR THAT ITS EFFECT WAS THE CREATION OF AN INSTITUTION OF SUNDAY
AS A DAY APART.  THE ORIGINS OF THE INSTITUTION WERE RELIGIOUS,
CERTAINLY, BUT THROUGH LONG-ESTABLISHED USAGE IT HAD BECOME A PART OF
THE LIFE OF THE ENGLISH PEOPLE.  (FN26)  IT WAS A DAY OF REST NOT
MERELY IN A PHYSICAL, HYGIENIC SENSE, BUT IN THE SENSE OF A RECURRENT
TIME IN THE CYCLE OF HUMAN ACTIVITY WHEN THE RHYTHMS OF EXISTENCE
CHANGED, A DAY OF PARTICULAR ASSOCIATIONS WHICH CAME TO HAVE THEIR OWN
AUTONOMOUS VALUE FOR LIFE.  (FN27)  WHEN THAT VALUE WAS THREATENED BY
THE PRESSURES OF THE INDUSTRIAL REVOLUTION, AGITATION BEGAN FOR NEW
LEGISLATIVE ACTION TO PRESERVE THE TRADITIONAL ENGLISH SUNDAY.  (FN28) 

AT THE TURN OF THE CENTURY, THE FACTORY AND WORKSHOP ACT, 1901,
PROHIBITED THE SUNDAY EMPLOYMENT OF WOMEN AND CHILDREN IN INDUSTRIAL
ESTABLISHMENTS.  (FN29)  THE SHOPS ACT, 1912, IN ITS INSTITUTION OF A
FIVE-AND-A-HALF-DAY WEEK FOR SHOP ASSISTANTS, BUILT UPON THE BASE OF
EXISTING SUNDAY CLOSING LAW.  (FN30)  WHEN DURING THE WAR THE PRESSURES
OF NATIONAL DEFENSE COMPELLED CONTINUOUS FACTORY OPERATION, A COMMITTEE
OF THE MINISTRY OF MUNITIONS APPOINTED TO INVESTIGATE INDUSTRIAL
FATIGUE AS THIS AFFECTED THE HEALTH AND EFFICIENCY OF MUNITIONS
WORKERS, RECOMMENDED TO PARLIAMENT REINAUGURATION OF SUNDAY WORK
STOPPAGE: 

"  ...  THE PROBLEM OF SUNDAY LABOUR, ALTHOUGH MATERIALLY AFFECTED BY
VARIOUS INDUSTRIAL QUESTIONS AND THE ESTABLISHED CUSTOM OF SUNDAY REST,
IS - AS REGARDS MUNITIONS WORKS - PRIMARILY A QUESTION OF THE EXTENT TO
WHICH WORKERS ACTUALLY REQUIRE WEEKLY OR PERIODIC RESTS IF THEY ARE TO
MAINTAIN THEIR HEALTH AND ENERGY OVER LONG PERIODS.  INTERVALS OF REST
ARE NEEDED TO OVERCOME MENTAL AS WELL AS PHYSICAL FATIGUE.  IN THIS
CONNECTION ACCOUNT HAS TO BE TAKEN NOT ONLY OF THE HOURS OF LABOUR
(OVERTIME, 12-HOUR SHIFTS, 8-HOUR SHIFTS), THE ENVIRONMENT OF THE WORK
AND THE PHYSICAL STRAIN INVOLVED, BUT ALSO THE MENTAL FATIGUE OR
BOREDOM RESULTING FROM CONTINUOUS ATTENTION TO WORK.  AS ONE MANAGER
PUT IT, IT IS THE MONOTONY OF THE WORK WHICH KILLS - THE MEN GET SICK
OF IT. 

     *         *         *         * * 

"  ...  IF THE MAXIMUM OUTPUT IS TO BE SECURED AND MAINTAINED FOR ANY
LENGTH OF TIME, A WEEKLY PERIOD OF REST MUST BE ALLOWED  ...  .  ON
ECONOMIC AND SOCIAL GROUNDS ALIKE THIS WEEKLY PERIOD OF REST IS BEST
PROVIDED ON SUNDAY  ...  ."  (FN31) 

IN 1936 THE CONFLICT BETWEEN THE ECONOMIC PRESSURES FOR SEVEN-DAY
COMMERCIAL ACTIVITY AND THE RESISTANCE TO THOSE PRESSURES CULMINATED IN
THE SHOPS (SUNDAY TRADING RESTRICTION) ACT OF THAT YEAR, WHICH, WITH A
COMPLEX PATTERN OF EXCEPTIONS, PROHIBITED SUNDAY TRADING UPON PAIN OF
PENALTIES MORE SEVERE, AND HENCE BETTER CALCULATED TO ASSURE OBEDIENCE,
THAN THE NOMINAL FINES WHICH HAD OBTAINED UNDER THE SEVENTEENTH CENTURY
LORD'S DAY BAN.  (FN32)  THE PARLIAMENTARY DEBATES ON THE 1936 ACT ARE
INSTRUCTIVE.  WITH EXTREMELY RARE EXCEPTIONS, (FN33) NO INTIMATION OF
RELIGIOUS PURPOSE IS TO BE DISCOVERED IN THEM.  (FN34)  THE OPENING
SPEECH BY MR. LOFTUS WHO INTRODUCED THE BILL IS REPRESENTATIVE: 

"  ...  IT IS A BILL WHICH IS NECESSARY TO SECURE THE FAMILY LIFE AND
LIBERTY OF HUNDREDS OF THOUSANDS OF OUR PEOPLE ...  . 

     *         *         *         *         * 

"  ...  I WILL EXPLAIN TO THE HOUSE THAT THERE ARE THOUSANDS OF
SHOPKEEPERS WHO HATE OPENING ON SUNDAY - THEY DISLIKE THE WHOLE IDEA -
BUT ARE FORCED TO OPEN BECAUSE THEIR NEIGHBOURS OPEN.  THEY ARE FORCED
TO OPEN NOT FOR THE SAKE OF THE SUNDAY TRADING, BUT BECAUSE IF THEY LET
THEIR CUSTOMERS GET INTO THE HABIT ON SUNDAY OF GOING TO OTHER SHOPS
THEY MAY LOSE THEIR WEEK-DAY CUSTOM  ...  . THEY HAVE THE RIGHT TO A
HOLIDAY ON SUNDAY, TO BE ABLE TO REST FROM WORK ON THAT DAY AND TO GO
OUT INTO THE PARKS OR INTO THE COUNTRY ON A SUMMER DAY.  THAT IS THE
LIBERTY FOR WHICH THEY ARE ASKING, AND THAT IS THE LIBERTY WHICH THIS
BILL WOULD GIVE TO THEM.  AS REGARDS THE SUPPORT BEHIND THE BILL, IT IS
PROMOTED BY THE EARLY CLOSING ASSOCIATION, WITH 300 AFFILIATED
ASSOCIATIONS, AND THE NATIONAL FEDERATION OF GROCERS, REPRESENTING
400,000 INDIVIDUAL SHOPS, AND IS SUPPORTED BY THE NATIONAL CHAMBER OF
TRADE, THE DRAPERS' CHAMBER OF TRADE, THE NATIONAL FEDERATION OF THE
BOOT TRADE, AND AS REGARDS THE EMPLOYES - AND THIS IS IMPORTANT - IT IS
SUPPORTED BY THE NATIONAL UNION OF SHOP ASSISTANTS AND BY THE NATIONAL
UNION OF DISTRIBUTIVE WORKERS."  (FN35) 

SPEAKERS ASSERTED THE NECESSITY FOR MAINTAINING "THE TRADITIONAL
QUALITY OF THE SUNDAY IN THIS COUNTRY."  (FN36)  ONE PARTICULARLY
STAUNCH LABOUR SUPPORTER OF THE MEASURE ARGUED: 

"  ...  FRANKLY, I AM AFRAID OF A SEVEN-DAY WEEK.  I SEE IT COMING
GRADUALLY, AND A SEVEN-DAY WEEK MEANS SIX DAYS' PAY FOR SEVEN DAYS'
WORK.  I HAVE WORKED SEVEN DAYS A WEEK IN MY TIME AND I SAY THAT, IF I
CAN HELP IT, NOBODY ELSE SHALL WORK SEVEN DAYS FOR SIX DAYS' PAY.  IT
IS CLEAR THAT IF ONE SHOPKEEPER OPENS IN A STREET, THE WHOLE STREET IS
BOUND TO OPEN AND, IF ONE STREET OPENS, THE WHOLE TOWN MUST OPEN
AUTOMATICALLY ...  .  I AM NOT SPEAKING AS A SABBATARIAN.  I STAND FOR
THE SIX-DAY WORKING WEEK WITH ONE DAY'S REST IN SEVEN BUT I DO NOT WANT
THAT DAY'S REST ARRANGED ON THE LINES SUGGESTED BY THE HON. MEMBER  ...
WHO, APPARENTLY, WANTS TO TURN MY SUNDAY INTO A TUESDAY OR A
WEDNESDAY.  THE ARGUMENT IS THAT ALL WE NEED DO IS TO SAY THERE SHALL
BE A SIX-DAY WORKING WEEK WITH ONE DAY'S REST IN SEVEN, AND THAT IT
DOES NOT MATTER WHETHER THE SUNDAY COMES ON A FRIDAY OR A TUESDAY.  AS
A FAMILY MAN LET ME SAY THAT MY FAMILY LIFE WOULD BE UNDULY DISTURBED
IF ANY MEMBER HAD HIS SUNDAY ON A TUESDAY.  THE VALUE OF A SUNDAY IS
THAT EVERYBODY IN THE FAMILY IS AT HOME ON THE SAME DAY.  WHAT IS THE
USE OF TALKING ABOUT A SIX-DAY WORKING WEEK IN WHICH SIX MEMBERS OF A
FAMILY WOULD EACH HAVE HIS DAY OF REST ON A DIFFERENT DAY OF THE
WEEK?"  (FN37) 

THE BILL WAS STRONGLY SUPPORTED BY LABOR AND TRADE GROUPS (FN38) AND
PASSED BY AN OVERWHELMING MARGIN.  (FN39) 

THUS THE ENGLISH EXPERIENCE DEMONSTRATES THE INTIMATE RELATIONSHIP
BETWEEN CIVIL SUNDAY REGULATION AND THE INTEREST OF A STATE IN
PRESERVING TO ITS PEOPLE A RECURRENT TIME OF MENTAL AND PHYSICAL
RECUPERATION FROM THE STRAINS AND PRESSURES OF THEIR ORDINARY LABORS. 
IT DEMONSTRATES ALSO, OF COURSE, THE INTIMATE HISTORICAL CONNECTION
BETWEEN THE CHOICE OF SUNDAY AS THIS TIME OF REST AND THE DOCTRINES OF
THE CHRISTIAN CHURCH.  LONG BEFORE THE EMERGENCE OF MODERN NOTIONS OF
GOVERNMENT, RELIGION HAD SET SUNDAY APART.  THROUGH GENERATIONS, THE
PEOPLE WERE ACCUSTOMED TO IT AS A DAY WHEN ORDINARY USES CEASED.  IF IT
MIGHT ONCE - OR ELSEWHERE - HAVE BEEN EQUALLY PRACTICABLE TO FULFILL
THE SAME NEED OF THE WORKERS AND TRADERS FOR PERIODIC RELAXATION BY THE
SELECTION OF SOME OTHER CYCLE, IT WAS NO LONGER PRACTICABLE IN
ENGLAND.  SOME HYPOTHETICAL MAN MIGHT DO BETTER WITH ONE-DAY-IN-EIGHT,
OR ONE-DAY-IN FOUR, BUT THE ENGLISHMAN WAS USED TO ONE-DAY-IN SEVEN. 
AND THAT DAY WAS SUNDAY.  THROUGH ASSOCIATIONS FOSTERED BY TRADITION,
THAT DAY HAD A CHARACTER OF ITS OWN WHICH BECAME IN ITSELF A CULTURAL
ASSET OF IMPORTANCE:  A RELEASE FROM THE DAILY GRIND, A PRESERVE OF
MENTAL PEACE, AN OPPORTUNITY FOR SELF-DISPOSITION.  CERTAINLY,
LEGISLATIVE FIAT COULD HAVE ATTEMPTED TO SWITCH THE DAY TO TUESDAY. 
BUT PARLIAMENT, NATURALLY ENOUGH, CONCLUDED THAT SUCH AN ATTEMPT MIGHT
PROVE AS FUTILE AS THE EPHEMERAL DECADE OF THE FRENCH REPUBLIC OF
1792.  (FN40)

                                           III. 

IN ENGLAND'S AMERICAN SETTLEMENTS, TOO, CIVIL SUNDAY REGULATION EARLY
BECAME AN INSTITUTION OF IMPORTANCE IN SHAPING THE COLONIAL PATTERN OF
LIFE.  EVERY COLONY HAD A LAW PROHIBITING SUNDAY LABOR.  THESE HAD BEEN
ENACTED IN MANY INSTANCES PRIOR TO THE LAST QUARTER OF THE SEVENTEENTH
CENTURY, AND THEY WERE CONTINUED IN FORCE THROUGHOUT THE PERIOD THAT
PRECEDED THE ADOPTION OF THE FEDERAL CONSTITUTION AND THE BILL OF
RIGHTS.  (FN41)  THIS IS NOT IN ITSELF, OF COURSE, INDICATIVE OF THE
PURPOSE OF THOSE LAWS, OR OF THEIR CONSISTENCY WITH THE GUARANTEE OF
RELIGIOUS FREEDOM WHICH THE FIRST AMENDMENT, RESTRAINING THE POWER OF
THE CENTRAL GOVERNMENT, SECURED.  MOST OF THE STATES WERE ONLY PARTLY
DISESTABLISHED IN 1789.  (FN42)  ONLY IN VIRGINIA (FN43) AND IN RHODE
ISLAND, WHICH HAD NEVER HAD AN ESTABLISHMENT, (FN44) HAD THE IDEAL OF
COMPLETE CHURCH-STATE SEPARATION BEEN REALIZED.  OTHER STATES WERE FAST
APPROACHING THAT IDEAL, HOWEVER, AND EVERYWHERE THE SPIRIT OF LIBERTY
IN RELIGION WAS IN THE ASCENDANT.  RATIFYING CONVENTIONS IN NEW YORK,
NEW HAMPSHIRE AND NORTH CAROLINA, AS WELL AS IN VIRGINIA AND RHODE
ISLAND, PROPOSED AN ANTI-ESTABLISHMENT AMENDMENT TO THE CONSTITUTION OR
SIGNIFIED THAT IN THEIR UNDERSTANDING THE CONSTITUTION EMBODIED SUCH A
SAFEGUARD.  (FN45)  ALL OF THESE FIVE STATES HAD SUNDAY LAWS AT THE
TIME THAT THEIR CONVENTIONS SPOKE.  INDEED, IN FOUR OF THE FIVE, THEIR
LEGISLATURES HAD REAFFIRMED THE SUNDAY LABOR BAN WITHIN FIVE YEARS OR
LESS IMMEDIATELY PRIOR TO THAT DATE.  (FN46) 

THE EARLIER AMONG THE COLONIAL SUNDAY STATUTES WERE UNQUESTIONABLY
RELIGIOUS IN PURPOSE.  THEIR PREAMBLES RECITE THAT PROFANATION OF THE
LORD'S DAY "TO THE GREAT REPROACH OF THE CHRISTIAN RELIGION," (FN47) OR
"TO THE GREAT OFFENCE OF THE GODLY WELAFECTED AMONG US," (FN43) MUST BE
SUPPRESSED; THAT "THE KEEPING HOLY THE LORD'S DAY, IS A PRINCIPAL PART
OF THE TRUE SERVICE OF GOD"; (FN49) THAT NEGLECTING THE SABBATH "PULLS
DOWNE THE JUDGMENTS OF GOD UPON THAT PLACE OR PEOPLE THAT SUFFER THE
SAME  ...  ."  (FN50)  THE FIRST PENNSYLVANIA SUNDAY LAW ANNOUNCES A
PURPOSE "THAT LOOSENESS, IRRELIGION, AND ATHEISM MAY NOT CREEP IN UNDER
PRETENSE OF CONSCIENCE  ...  ."  (FN51) SOMETIMES REPROACH OF GOD IS
MADE AN OPERATIVE ELEMENT OF THE OFFENSE.  (FN52)  PROHIBITIONS OF
SUNDAY LABOR ARE FREQUENTLY COUPLED WITH ADMONITIONS THAT ALL PERSONS
SHALL "CAREFULLY APPLY THEMSELVES TO DUTIES OF RELIGION AND PIETY,
PUBLICKLY AND PRIVATELY  ...  ," (FN53) AND ARE FOUND IN COMPREHENSIVE
ECCLESIASTICAL CODES WHICH ALSO PROHIBIT BLASPHEMY, (FN54) LAY TAXES
FOR THE SUPPORT OF THE CHURCH, (FN55) OR COMPEL ATTENDANCE AT DIVINE
SERVICES.  (FN56) 

BUT EVEN THE SEVENTEENTH CENTURY LEGISLATION DOES NOT SHOW AN
EXCLUSIVELY RELIGIOUS PREOCCUPATION.   THE SAME PENNSYLVANIA LAW WHICH
SPEAKS OF THE SUPPRESSION OF ATHEISM ALSO ORDAINS SUNDAY REST "FOR THE
EASE OF THE CREATION," AND SHOWS SOLICITUDE THAT SERVANTS, AS WELL AS
THEIR MASTERS, MAY BE FREE ON THAT DAY TO ATTEND SUCH SPIRITUAL
PURSUITS AS THEY MAY WISH.  (FN57)  THE RHODE ISLAND ASSEMBLY IN 1679
ENACTED: 

"VOTED, WHEREAS THERE HATH COMPLAINT BEEN MADE THAT SUNDRY PERSONS
BEING EVILL MINDED, HAVE PRESUMED TO EMPLOY IN SERVILE LABOR, MORE THAN
NECESSITY REQUIRETH, THEIR SERVANTS, AND ALSOE HIRE OTHER MENS'
SERVANTS AND SELL THEM TO LABOR ON THE FIRST DAY OF THE WEEK:  ...  BEE
IT ENACTED  ... .  THAT IF ANY PERSON OR PERSONS SHALL EMPLOY HIS
SERVANTS OR HIRE AND EMPLOY ANY OTHER MAN'S SERVANT OR SERVANTS, AND
SET THEM TO LABOR AS AFORESAID HE SHALL BE PENALIZED."  (FN58) 

IN THE LATTER HALF OF THE EIGHTEENTH CENTURY, THE SUNDAY LAWS, WHILE
STILL GIVING EVIDENCE OF CONCERN FOR THE "IMMORALITY" OF THE PRACTICES
THEY PROHIBIT, TEND NO LONGER TO BE PREFIXED BY PREAMBLES IN THE FORM
OF THEOLOGICAL TREATISES.  (FN59)  NOW IT APPEARS TO BE THE COMMUNITY,
RATHER THAN THE DEITY, WHICH IS OFFENDED BY SUNDAY LABOR.  NEW YORK'S
STATUTE OF 1788 NO LONGER REFERS TO THE LORD'S DAY, BUT TO "THE FIRST
DAY OF THE WEEK COMMONLY CALLED SUNDAY."  (FN60)  WHERE PREAMBLES DO
APPEAR, THEY DISPLAY A DUPLICITY OF PURPOSE.  THE MASSACHUSETTS ACT OF
1792 BEGINS: 

"WHEREAS THE OBSERVANCE OF THE LORD'S DAY IS HIGHLY PROMOTIVE OF THE
WELFARE OF A COMMUNITY, BY AFFORDING NECESSARY SEASONS FOR RELAXATION
FROM LABOUR AND THE CARES OF BUSINESS; FOR MORAL REFLECTIONS AND
CONVERSATION ON THE DUTIES OF LIFE  ...  ; FOR PUBLIC AND PRIVATE
WORSHIP OF THE MAKER, GOVERNOR AND JUDGE OF THE WORLD; AND FOR THOSE
ACTS OF CHARITY WHICH SUPPORT AND ADORN A CHRISTIAN SOCIETY:  AND
WHEREAS SOME THOUGHTLESS AND IRRELIGIOUS PERSONS, INATTENTIVE TO THE
DUTIES AND BENEFITS OF THE LORD'S DAY, PROFANE THE SAME, BY
UNNECESSARILY PURSUING THEIR WORLDLY BUSINESS AND RECREATIONS ON THAT
DAY, TO THEIR OWN GREAT DAMAGE, AS MEMBERS OF A CHRISTIAN SOCIETY; TO
THE GREAT DISTURBANCE OF WELL-DISPOSED PERSONS, AND TO THE GREAT DAMAGE
OF THE COMMUNITY, BY PRODUCING DISSIPATION OF MANNERS AND IMMORALITIES
OF LIFE  ...  ."    AN ENACTMENT OF VERMONT IN 1797 IS SIMILAR. 
(FN61) 

MORE SIGNIFICANT IS THE HISTORY OF SUNDAY LEGISLATION IN VIRGINIA. 
EVEN BEFORE THE ENGLISH STATUTE OF 29 CHARLES II, THAT COLONY HAD HAD
LAWS COMPELLING SUNDAY ATTENDANCE AT WORSHIP (FN62) AND FORBIDDING
SUNDAY LABOR.  (FN63)  IN 1776, THE GENERAL CONVENTION AT WILLIAMSBURG
ADOPTED A DECLARATION OF RIGHTS, PROVIDING, INTER ALIA, THAT "  ...
ALL MEN ARE EQUALLY ENTITLED TO THE FREE EXERCISE OF RELIGION,
ACCORDING TO THE DICTATES OF CONSCIENCE  ...  ," (FN64) AND IN THE SAME
YEAR THE ACTS OF PARLIAMENT COMPELLING CHURCH ATTENDANCE AND PUNISHING
DEVIATION IN BELIEF WERE DECLARED VOID, DISSENTERS WERE EXEMPTED FROM
THE TAX FOR SUPPORT OF THE ESTABLISHED CHURCH, AND THE LEVY OF THAT TAX
WAS SUSPENDED.  (FN65)  EIGHT YEARS LATER CAME THE BATTLE OVER THE
ASSESSMENT BILL.  UNDER MADISON'S LEADERSHIP THE FORCES SUPPORTING
ENTIRE FREEDOM OF RELIGION WROTE THE DEFINITIVE QUIETUS TO THE VIRGINIA
ESTABLISHMENT, AND JEFFERSON'S BILL FOR ESTABLISHING RELIGIOUS FREEDOM
WAS ENACTED IN 1786: 

"I.  WHEREAS ALMIGHTY GOD HATH CREATED THE MIND FREE; THAT ALL
ATTEMPTS TO INFLUENCE IT BY TEMPORAL PUNISHMENTS OR BURTHENS, OR BY
CIVIL INCAPACITATIONS, TEND ONLY TO BEGET HABITS OF HYPOCRISY AND
MEANNESS, AND ARE A DEPARTURE FROM THE PLAN OF THE HOLY AUTHOR OF OUR
RELIGION, WHO BEING LORD BOTH OF BODY AND MIND, YET CHOSE NOT TO ...
PROPAGATE IT BY COERCIONS ON EITHER, AS WAS IN HIS ALMIGHTY POWER TO
DO; THAT THE IMPIOUS PRESUMPTION OF LEGISLATORS AND RULERS, CIVIL AS
WELL AS ECCLESIASTICAL, WHO BEING THEMSELVES BUT FALLIBLE AND
UNINSPIRED MEN, HAVE ASSUMED DOMINION OVER THE FAITH OF OTHERS, SETTING
UP THEIR OWN OPINIONS AND MODES OF THINKING AS THE ONLY TRUE AND
INFALLIBLE, AND AS SUCH ENDEAVOURING TO IMPOSE THEM ON OTHERS, HATH
ESTABLISHED AND MAINTAINED FALSE RELIGIONS OVER THE GREATEST PART OF
THE WORLD, AND THROUGH ALL TIME; ...  THAT TO SUFFER THE CIVIL
MAGISTRATE TO INTRUDE HIS POWERS INTO THE FIELD OF OPINION, AND TO
RESTRAIN THE PROFESSION OR PROPAGATION OF PRINCIPLES ON SUPPOSITION OF
THEIR ILL TENDENCY, IS A DANGEROUS FALLACY,  ...  THAT IT IS TIME
ENOUGH FOR THE RIGHTFUL PURPOSES OF CIVIL GOVERNMENT, FOR ITS OFFICERS
TO INTERFERE WHEN PRINCIPLES BREAK OUT INTO OVERT ACTS AGAINST PEACE
AND GOOD ORDER; AND FINALLY, THAT TRUTH IS GREAT AND WILL PREVAIL IF
LEFT TO HERSELF,  ...  . 

"II.  BE IT ENACTED  ...  THAT NO MAN SHALL BE COMPELLED TO FREQUENT
OR SUPPORT ANY RELIGIOUS WORSHIP, PLACE, OR MINISTRY WHATSOEVER, NOR
SHALL BE ENFORCED, RESTRAINED, MOLESTED, OR BURTHENED IN HIS BODY OR
GOODS, NOR SHALL OTHERWISE SUFFER ON ACCOUNT OF HIS RELIGIOUS OPINIONS
OR BELIEF; BUT THAT ALL MEN SHALL BE FREE TO PROFESS, AND BY ARGUMENT
TO MAINTAIN, THEIR OPINION IN MATTERS OF RELIGION, AND THAT THE SAME
SHALL IN NO WISE DIMINISH, ENLARGE, OR AFFECT THEIR CIVIL CAPACITIES." 
(FN66) 

IN THIS BILL BREATHED THE FULL AMPLITUDE OF THE SPIRIT WHICH INSPIRED
THE FIRST AMENDMENT, AND THIS COURT HAS LOOKED TO THE BILL, AND TO THE
VIRGINIA HISTORY WHICH SURROUNDED ITS ENACTMENT, AS A GLOSS ON THE
SIGNIFICATION OF THE AMENDMENT.  SEE THE OPINIONS IN EVERSON V. BOARD
OF EDUCATION, 330 U.S. 1.  THE BILL WAS DRAFTED FOR THE VIRGINIA
LEGISLATURE AS NO. 82 OF THE REVISED STATUTES RETURNED TO THE ASSEMBLY
BY JEFFERSON AND WYTHE ON JUNE 18, 1779.  (FN67)  BILL NO. 84 OF THE
REVISION PROVIDED: 

"IF ANY PERSON ON SUNDAY SHALL HIMSELF BE FOUND LABOURING AT HIS OWN
OR ANY OTHER TRADE OR CALLING, OR SHALL EMPLOY HIS APPRENTICES,
SERVANTS OR SLAVES IN LABOUR, OR OTHER BUSINESS, EXCEPT IT BE IN THE
ORDINARY HOUSEHOLD OFFICES OF DAILY NECESSITY, OR OTHER WORK OF
NECESSITY OR CHARITY, HE SHALL FORFEIT THE SUM OF TEN SHILLINGS  ...
."  (FN68) 

THIS BILL WAS PRESENTED TO THE ASSEMBLY BY MADISON IN 1785, (FN69)
AND WAS ENACTED IN 1786.  (FN70)  APPARENTLY NEITHER THOMAS JEFFERSON
NOR JAMES MADISON REGARDED IT AS REPUGNANT TO RELIGIOUS FREEDOM.  NOR
DID THE VIRGINIA LEGISLATORS WHO THIRTEEN YEARS LATER REAFFIRMED THE
BILL FOR ESTABLISHING RELIGIOUS FREEDOM AS "A TRUE EXPOSITION OF THE
PRINCIPLES OF THE BILL OF RIGHTS AND CONSTITUTION," BY REPEALING ALL
LAWS WHICH THEY DEEMED INCONSISTENT WITH IT.  (FN71)  THE SUNDAY LAW OF
1786 WAS NOT AMONG THOSE REPEALED. 

           IV. 

LEGISLATION CURRENTLY IN FORCE IN FORTY-NINE OF THE FIFTY STATES
ILLEGALIZES ON SUNDAY SOME FORM OF CONDUCT LAWFUL IF PERFORMED ON
WEEKDAYS.  (FN72)  IN SEVERAL STATES ONLY ONE OR A FEW ACTIVITIES ARE
BANNED - THE SALE OF ALCOHOLIC BEVERAGES, (FN73) HUNTING, (FN74)
BARBERING, (FN75) PAWNBROKING, (FN76) TRADING IN AUTOMOBILES (FN77) -
BUT THIRTY-FOUR JURISDICTIONS BROADLY BAN SUNDAY LABOR, OR THE
EMPLOYMENT OF LABOR, OR SELLING OR KEEPING OPEN FOR SALE, OR SOME TWO
OR MORE OF THESE COMPREHENSIVE CATEGORIES OF AFFAIRS.  IN MANY OF THESE
STATES, AND IN OTHERS HAVING NO STATE-WIDE PROHIBITION OF INDUSTRIAL OR
COMMERCIAL ACTIVITY, MUNICIPAL SUNDAY ORDINANCES ARE UBIQUITOUS. 
(FN78)  MOST OF THESE REGULATIONS ARE THE PRODUCT OF MANY RE-ENACTMENTS
AND AMENDMENTS.  ALTHOUGH SOME ARE STILL BUILT UPON THE ARMATURES OF
EARLIER STATUTES, THEY ARE ALL, LIKE THE LAWS OF MARYLAND,
MASSACHUSETTS AND PENNSYLVANIA WHICH ARE BEFORE US IN THESE CASES,
(FN79) RECENTLY RECONSIDERED LEGISLATION.  AS EXPRESSIONS OF STATE
POLICY, THEY MUST BE DEEMED AS CONTEMPORARY AS THEIR LATEST-ENACTED
EXCEPTIONS IN FAVOR OF MOVING PICTURES (FN80) OR SEVERER BANS OF SUNDAY
MOTOR VEHICLE TRADING.  (FN81)  IN ALL, THEY REFLECT A WIDELY FELT
PRESENT-DAY NEED, FOR WHOSE SATISFACTION OLD LAWS ARE SHAPED AND NEW
LAWS ENACTED. 

TO BE SURE, THE MASSACHUSETTS STATUTE NOW BEFORE THE COURT, AND
STATUTES IN PENNSYLVANIA AND MARYLAND, STILL CALL SUNDAY THE "LORD'S
DAY" OR THE "SABBATH."  SO DO THE SUNDAY LAWS IN MANY OTHER STATES. 
(FN82)  BUT THE CONTINUATION OF SEVENTEENTH CENTURY LANGUAGE DOES NOT
OF ITSELF PROVE THE CONTINUATION OF THE PURPOSES FOR WHICH THE COLONIAL
GOVERNMENTS ENACTED THESE LAWS, OR THAT THESE ARE THE PURPOSES FOR
WHICH THEIR SUCCESSORS OF THE TWENTIETH HAVE RETAINED THEM AND MODIFIED
THEM.  WE KNOW, FOR EXAMPLE, THAT COMMITTEES OF THE NEW YORK
LEGISLATURE, CONSIDERING THAT STATE'S SABBATH LAWS ON TWO OCCASIONS
MORE THAN A CENTURY APART, TWICE RECOMMENDED NO REPEAL OF THOSE LAWS,
BOTH TIMES ON THE GROUND THAT THE LAWS DID NOT INVOLVE "ANY PARTISAN
RELIGIOUS ISSUE, BUT RATHER ECONOMIC AND HEALTH REGULATION OF THE
ACTIVITIES OF THE PEOPLE ON A UNIVERSAL DAY OF REST," (FN83) AND THAT A
MASSACHUSETTS LEGISLATIVE COMMITTEE RESTED ON THE SAME VIEWS.  (FN84)
SUNDAY LEGISLATION HAS BEEN SUPPORTED NOT ONLY BY SUCH CLERICAL
ORGANIZATIONS AS THE LORD'S DAY ALLIANCE, BUT ALSO BY LABOR AND TRADE
GROUPS.  (FN85)  THE INTERLOCKING SECTIONS OF THE MASSACHUSETTS LABOR
CODE CONSTRUCT THEIR SIX-DAY WEEK PROVISIONS UPON THE BASIC PREMISE OF
SUNDAY REST.  (FN86)  OTHER STATES HAVE SIMILAR LAWS.  (FN87)  WHEN IN
PENNSYLVANIA MOTION PICTURES WERE EXCEPTED FROM THE LORD'S DAY STATUTE,
A DAY-OF-REST-IN-SEVEN CLAUSE FOR MOTION PICTURE PERSONNEL WAS WRITTEN
INTO THE EXEMPTING STATUTE TO FILL THE GAP.  (FN88)  PUERTO RICO'S
CLOSING LAW, WHICH LIMITS THE WEEKDAY HOURS OF COMMERCIAL
ESTABLISHMENTS AS WELL AS PROSCRIBING THEIR SUNDAY OPERATION, DOES NOT
EXPRESS A RELIGIOUS PURPOSE.  (FN89)  RHODE ISLAND AND SOUTH CAROLINA
NOW ENFORCE PORTIONS OF THEIR SUNDAY EMPLOYMENT BANS THROUGH THEIR
RESPECTIVE DEPARTMENTS OF LABOR.  (FN90)  IT CANNOT BE FAIRLY DENIED
THAT THE INSTITUTION OF SUNDAY AS A TIME WHOSE OCCUPATIONS AND
ATMOSPHERE DIFFER FROM THOSE OF OTHER DAYS OF THE WEEK HAS NOW BEEN A
PORTION OF THE AMERICAN CULTURAL SCENE SINCE WELL BEFORE THE
CONSTITUTION; THAT FOR MANY MILLIONS OF PEOPLE LIFE HAS A HEBDOMADAL
RHYTHM IN WHICH THIS DAY, WITH ALL ITS PARTICULAR ASSOCIATIONS, IS THE
RECURRENT NOTE OF REPOSE.  (FN91)  CULTURAL HISTORY ESTABLISHES NOT A
FEW PRACTICES AND PROHIBITIONS RELIGIOUS IN ORIGIN WHICH ARE RETAINED
AS SECULAR INSTITUTIONS AND WAYS LONG AFTER THEIR RELIGIOUS SANCTIONS
AND JUSTIFICATIONS ARE GONE.  (FN92)  IN LIGHT OF THESE CONSIDERATIONS,
CAN IT REASONABLY BE SAID THAT NO SUBSTANTIAL NONECCLESIASTICAL PURPOSE
RELEVANT TO A WELL-ORDERED SOCIAL LIFE EXISTS FOR SUNDAY RESTRICTIONS? 

IT IS URGED, HOWEVER, THAT IF A DAY OF REST WERE THE LEGISLATIVE
PURPOSE, STATUTES TO SECURE IT WOULD TAKE SOME OTHER FORM THAN THE
PROHIBITION OF ACTIVITY ON SUNDAY.  (FN93)  SUCH STATUTES, IT IS
ARGUED, WOULD PROVIDE FOR ONE DAY'S LABOR STOPPAGE IN SEVEN, LEAVING
THE CHOICE OF THE DAY TO THE INDIVIDUAL; OR, ALTERNATIVELY, WOULD FIX A
COMMON DAY OF REST ON SOME OTHER DAY - MONDAY OR TUESDAY.   BUT, IN ALL
FAIRNESS, CERTAINLY, IT WOULD BE IMPOSSIBLE TO CALL UNREASONABLE A
LEGISLATIVE FINDING THAT THESE SUGGESTED ALTERNATIVES WERE
UNSATISFACTORY.  A PROVISION FOR ONE DAY'S CLOSING PER WEEK, AT THE
OPTION OF EVERY PARTICULAR ENTERPRISER, MIGHT BE DISRUPTIVE OF FAMILIES
WHOSE MEMBERS ARE EMPLOYED BY DIFFERENT ENTERPRISES.  (FN94)
ENFORCEMENT MIGHT BE MORE DIFFICULT, BOTH BECAUSE VIOLATION WOULD BE
LESS EASILY DISCOVERED AND BECAUSE SUCH A LAW WOULD NOT BE SECONDED, AS
IS SUNDAY LEGISLATION, BY THE COMMUNITY'S MORAL TEMPER.  MORE
IMPORTANT, ONE-DAY-A-WEEK LAWS DO NOT ACCOMPLISH ALL THAT IS
ACCOMPLISHED BY SUNDAY LAWS.  THEY PROVIDE ONLY A PERIODIC PHYSICAL
REST, NOT THAT ATMOSPHERE OF ENTIRE COMMUNITY REPOSE WHICH SUNDAY HAS
TRADITIONALLY BROUGHT AND WHICH, A LEGISLATURE MIGHT REASONABLY
BELIEVE, IS NECESSARY TO THE WELFARE OF THOSE WHO FOR MANY GENERATIONS
HAVE BEEN ACCUSTOMED TO ITS RECUPERATIVE EFFECTS. 

THE SAME CONSIDERATIONS MIGHT ALSO BE DEEMED TO JUSTIFY THE CHOICE OF
SUNDAY AS THE SINGLE COMMON DAY WHEN LABOR CEASES.  FOR TO MANY WHO DO
NOT REGARD IT SACRAMENTALLY, SUNDAY IS NEVERTHELESS A DAY OF SPECIAL,
LONG-ESTABLISHED ASSOCIATIONS, WHOSE PARTICULAR TEMPER MAKES IT A HAVEN
THAT NO OTHER DAY COULD PROVIDE.  THE WILL OF A MAJORITY OF THE
COMMUNITY, REFLECTED IN THE LEGISLATIVE PROCESS DURING SCORES OF YEARS,
PRESUMABLY PREFERS TO TAKE ITS LEISURE ON SUNDAY.  (FN95)  THE SPIRIT
OF ANY PEOPLE EXPRESSES IN GOODLY MEASURE THE HERITAGE WHICH LINKS IT
TO ITS PAST.  DISRUPTION OF THIS HERITAGE BY A REGULATION WHICH, LIKE
THE UNNATURAL LABORS OF CLAUDIUS' SHIPWRIGHTS, DOES NOT DIVIDE THE
SUNDAY FROM THE WEEK, MIGHT PROVE A MEASURE ILL-DESIGNED TO SECURE THE
DESIRABLE COMMUNITY REPOSE FOR WHICH SUNDAY LEGISLATION IS DESIGNED. 
AT ALL EVENTS, MARYLAND, MASSACHUSETTS AND PENNSYLVANIA, LIKE THIRTY
ONE OTHER STATES WITH SIMILAR REGULATIONS, COULD REASONABLY SO FIND. 
CERTAINLY, FROM FAILURE TO MAKE A SUBSTITUTION FOR SUNDAY IN SECURING A
SOCIALLY DESIRABLE DAY OF SURCEASE FROM SUBJECTION TO LABOR AND ROUTINE
A PURPOSE CANNOT BE DERIVED TO ESTABLISH OR PROMOTE RELIGION. 

THE QUESTION BEFORE THE COURT IN THESE CASES IS NOT A NEW ONE. 
DURING A HUNDRED AND FIFTY YEARS SUNDAY LAWS HAVE BEEN ATTACKED IN
STATE AND FEDERAL COURTS AS DISREGARDING CONSTITUTIONALLY DEMANDED
CHURCH-STATE SEPARATION, OR INFRINGING PROTECTED RELIGIOUS FREEDOMS, OR
ON THE GROUND THAT THEY SUBSERVED NO END WITHIN THE LEGITIMATE COMPASS
OF LEGISLATIVE POWER.  ONE CALIFORNIA COURT IN 1858 HELD CALIFORNIA'S
SUNDAY STATUTE UNCONSTITUTIONAL.  (FN96)  THAT DECISION WAS OVERRULED
THREE YEARS LATER.  (FN97)  EVERY OTHER APPELLATE COURT THAT HAS
CONSIDERED THE QUESTION HAS FOUND THE STATUTES SUPPORTABLE AS CIVIL
REGULATIONS (FN98) AND NOT REPUGNANT TO RELIGIOUS FREEDOM.  (FN99)
THESE DECISIONS ARE ASSAILED AS LATTER-DAY JUSTIFICATIONS UPON SPECIOUS
CIVIL GROUNDS OF LEGISLATION WHOSE RELIGIOUS PURPOSES WERE EITHER
OVERLOOKED OR CONCEALED BY THE JUDGES WHO PASSED UPON IT.  OF COURSE,
IT IS FOR THIS COURT ULTIMATELY TO DETERMINE WHETHER FEDERAL
CONSTITUTIONAL GUARANTEES ARE OBSERVED OR UNDERCUT.  BUT THIS DOES NOT
MEAN THAT WE ARE TO BE INDIFFERENT TO THE UNANIMOUS OPINION OF
GENERATIONS OF JUDGES WHO, IN THE CONSCIENTIOUS DISCHARGE OF
OBLIGATIONS AS SOLEMN AS OUR OWN, HAVE SUSTAINED THE SUNDAY LAWS AS NOT
INSPIRED BY RELIGIOUS PURPOSE.  THE COURT DID NOT IGNORE THAT OPINION
IN FRIEDMAN V. NEW YORK, 341 U.S. 907; MCGEE V. NORTH CAROLINA, 346
U.S. 802; KIDD V. OHIO, 358 U.S. 132; AND ULLNER V. OHIO, 358 U.S. 131,
DISMISSING FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION APPEALS FROM
STATE DECISIONS SUSTAINING SUNDAY LAWS WHICH WERE OBNOXIOUS TO THE SAME
OBJECTIONS URGED IN THE PRESENT CASES.  (FN100)  I CANNOT IGNORE THAT
CONSENSUS OF VIEW NOW.  THE STATUTES OF MARYLAND, MASSACHUSETTS AND
PENNSYLVANIA WHICH WE HERE EXAMINE ARE NOT CONSTITUTIONALLY FORBIDDEN
FUSIONS OF CHURCH AND STATE.  (FN101)

 V. 

APPELLEES IN THE GALLAGHER CASE AND APPELLANTS IN THE BRAUNFELD CASE
CONTEND THAT, AS APPLIED TO THEM, ORTHODOX JEWISH RETAILERS AND THEIR
ORTHODOX JEWISH CUSTOMERS, THE MASSACHUSETTS LORD'S DAY STATUTE AND THE
PENNSYLVANIA SUNDAY RETAIL SALES ACT VIOLATE THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT BECAUSE, IN EFFECT, THE STATUTES DETER THE
EXERCISE AND OBSERVANCE OF THEIR RELIGION.  THE ARGUMENT RUNS THAT BY
COMPELLING THE SUNDAY CLOSING OF RETAIL STORES AND THUS MAKING
UNAVAILABLE FOR BUSINESS AND SHOPPING USES ONE-SEVENTH PART OF THE
WEEK, THESE STATUTES FORCE THEM EITHER TO GIVE UP THE SABBATH
OBSERVANCE - AN ESSENTIAL PART OF THEIR FAITH - OR TO FOREGO ADVANTAGES
ENJOYED BY THE NON-SABBATARIAN MAJORITY OF THE COMMUNITY.  THEY POINT
OUT, MOREOVER, THAT BECAUSE OF THE PREVAILING FIVE-DAY WORKING WEEK OF
A LARGE PROPORTION OF THE POPULATION, SUNDAY IS A DAY PECULIARLY
PROFITABLE TO RETAIL SELLERS AND PECULIARLY CONVENIENT TO RETAIL
SHOPPERS.  THE RECORDS IN THESE CASES SUPPORT THEM IN THIS.    THE
CLAIM WHICH THESE LITIGANTS URGE ASSUMES A NUMBER OF ASPECTS.  FIRST,
THEY ARGUE THAT ANY ONE-COMMON-DAY-OF-CLOSING REGULATION WHICH SELECTED
A DAY OTHER THAN THEIR SABBATH WOULD BE IPSO FACTO UNCONSTITUTIONAL IN
ITS APPLICATION TO THEM BECAUSE OF ITS EFFECT IN PREFERRING PERSONS WHO
OBSERVE NO SABBATH, THEREFORE CREATING ECONOMIC PRESSURES WHICH URGE
SABBATARIANS TO GIVE UP THEIR USAGE.  THE CREATION OF THIS PRESSURE BY
THE SUNDAY STATUTES, IT IS SAID, IS NOT SO NECESSARY A MEANS TO THE
ACHIEVEMENT OF THE ENDS OF DAY-OF-REST LEGISLATION AS TO JUSTIFY ITS
EMPLOYMENT WHEN WEIGHED AGAINST THE INJURY TO SABBATARIAN RELIGION
WHICH IT ENTAILS.  SIX-DAY-WEEK REGULATION, WITH THE CLOSING DAY LEFT
TO INDIVIDUAL CHOICE, IS URGED AS A MORE REASONABLE ALTERNATIVE. 

SECOND, THEY ARGUE THAT EVEN IF LEGITIMATE STATE INTERESTS JUSTIFY
THE ENFORCEMENT AGAINST PERSONS GENERALLY OF A SINGLE COMMON DAY OF
REST, THE CHOICE OF SUNDAY AS THAT DAY VIOLATES THE RIGHTS OF RELIGIOUS
FREEDOM OF THE SABBATARIAN MINORITY.  BY CHOOSING A DAY UPON WHICH
SUNDAY-OBSERVING CHRISTIANS WORSHIP AND ABSTAIN FROM LABOR, THE
STATUTES ARE SAID TO DISCRIMINATE BETWEEN RELIGIONS.  THE SUNDAY
OBSERVER MAY PRACTICE HIS FAITH AND YET WORK SIX DAYS A WEEK, WHILE THE
OBSERVER OF THE JEWISH SABBATH, HIS COMPETITOR, MAY WORK ONLY DURING
FIVE DAYS, TO THE LATTER'S OBVIOUS DISADVANTAGE.  ORTHODOX JEWISH
SHOPPERS WHOSE JOBS OCCUPY A FIVE-DAY WEEK HAVE NO WEEK-END SHOPPING
DAY, WHILE SUNDAY-OBSERVING CHRISTIANS DO.  LEISURE TO ATTEND SUNDAY
SERVICES, AND RELATIVE QUIET THROUGHOUT THEIR DURATION, IS ASSURED BY
LAW, BUT NO EQUIVALENT TREATMENT IS ACCORDED TO FRIDAY EVENING AND
SATURDAY SERVICES.  SABBATARIANS FEEL THAT THE POWER OF THE STATE IS
EMPLOYED TO COERCE THEIR OBSERVANCE OF SUNDAY AS A HOLY DAY; THAT THE
STATE ACCORDS A RECOGNITION TO SUNDAY CHRISTIAN DOCTRINE WHICH IS
WITHHELD FROM SABBATARIAN CREEDS.  ALL OF THESE PREJUDICES COULD BE
AVOIDED, IT IS ARGUED, WITHOUT IMPAIRING THE EFFECTIVENESS OF COMMON
DAY-OF-REST REGULATION, EITHER BY FIXING AS THE REST TIME SOME DAY
WHICH IS HELD SACRED BY NO SECT, OR BY PROVIDING FOR A SUNDAY WORK BAN
FROM WHICH SABBATARIANS ARE EXCEPTED, ON CONDITION OF THEIR ABSTAINING
FROM LABOR ON SATURDAY.  FAILURE TO ADOPT THESE ALTERNATIVES IN LIEU OF
SUNDAY STATUTES APPLICABLE TO SABBATARIANS IS SAID TO CONSTITUTE AN
UNCONSTITUTIONAL CHOICE OF MEANS. 

FINALLY, IT IS URGED THAT IF, AS MEANS, THESE STATUTES ARE NECESSARY
TO THE GOALS WHICH THEY SEEK TO ATTAIN, NEVERTHELESS THE GOALS
THEMSELVES ARE NOT OF SUFFICIENT VALUE TO SOCIETY TO JUSTIFY THE
DISADVANTAGE WHICH THEIR ATTAINMENT IMPOSES UPON THE RELIGIOUS EXERCISE
OF SABBATARIANS. 

THE FIRST OF THESE CONTENTIONS HAS ALREADY BEEN DISCUSSED.  THE
HISTORY OF SUNDAY LEGISLATION CONVINCINGLY DEMONSTRATES THAT SUNDAY
STATUTES MAY SERVE OTHER PURPOSES THAN THE PROVISION MERELY OF ONE DAY
OF PHYSICAL STOPPAGE IN SEVEN.  THESE PURPOSES FULLY JUSTIFY COMMON-DAY
OF-REST STATUTES WHICH CHOOSE SUNDAY AS THE DAY. 

IN URGING THAT AN EXCEPTION IN FAVOR OF THOSE WHO OBSERVE SOME OTHER
DAY AS SACRED WOULD NOT DEFEAT THE ENDS OF SUNDAY LEGISLATION, AND
THEREFORE THAT FAILURE TO PROVIDE SUCH AN EXCEPTION IS AN UNNECESSARY -
HENCE AN UNCONSTITUTIONAL - BURDEN ON SABBATARIANS, THE GALLAGHER
APPELLEES AND BRAUNFELD APPELLANTS POINT TO SUCH EXCEPTIONS IN TWENTY
ONE OF THE THIRTY-FOUR JURISDICTIONS WHICH HAVE STATUTES BANNING LABOR
OR EMPLOYMENT OR THE SELLING OF GOODS ON SUNDAY.  (FN102)  ACTUALLY, IN
LESS THAN HALF OF THESE TWENTY-ONE STATES DOES THE EXEMPTION EXTEND TO
SALES ACTIVITY AS WELL AS TO LABOR.  (FN103)  THERE ARE TENABLE REASONS
WHY A LEGISLATURE MIGHT CHOOSE NOT TO MAKE SUCH AN EXCEPTION.  TO
WHATEVER EXTENT PERSONS WHO COME WITHIN THE EXCEPTION ARE PRESENT IN A
COMMUNITY, THEIR ACTIVITY WOULD DISTURB THE ATMOSPHERE OF GENERAL
REPOSE AND REINTRODUCE INTO SUNDAY THE BUSINESS TEMPOS OF THE WEEK. 
ADMINISTRATION WOULD BE MORE DIFFICULT, WITH VIOLATIONS LESS EVIDENT
AND, IN EFFECT, TWO OR MORE DAYS TO POLICE INSTEAD OF ONE.  IF IT IS
ASSUMED THAT THE RETAIL DEMAND FOR CONSUMER ITEMS IS APPROXIMATELY
EQUIVALENT ON SATURDAY AND ON SUNDAY, THE SABBATARIAN, IN PROPORTION AS
HE IS LESS NUMEROUS, AND HENCE THE COMPETITION LESS SEVERE, MIGHT INCUR
THROUGH THE EXCEPTION A COMPETITIVE ADVANTAGE OVER THE NON-SABBATARIAN,
WHO WOULD THEN BE IN A POSITION, PRESUMABLY, TO COMPLAIN OF
DISCRIMINATION AGAINST HIS RELIGION.  (FN104)  EMPLOYERS WHO WISHED TO
AVAIL THEMSELVES OF THE EXCEPTION WOULD HAVE TO EMPLOY ONLY THEIR CO
RELIGIONISTS, (FN105) AND THERE MIGHT BE INTRODUCED INTO PRIVATE
EMPLOYMENT PRACTICES AN ELEMENT OF RELIGIOUS DIFFERENTIATION WHICH A
LEGISLATURE COULD REGARD AS UNDESIRABLE.  (FN106) 

FINALLY, A RELEVANT CONSIDERATION WHICH MIGHT CAUSE A STATE'S
LAWMAKERS TO REJECT EXCEPTION FOR OBSERVERS OF ANOTHER DAY THAN SUNDAY
IS THAT ADMINISTRATION OF SUCH A PROVISION MAY REQUIRE JUDICIAL INQUIRY
INTO RELIGIOUS BELIEF.  A LEGISLATURE COULD CONCLUDE THAT IF ALL THAT
IS MADE REQUISITE TO QUALIFY FOR THE EXEMPTION IS AN ABSTINENCE FROM
LABOR ON SOME OTHER DAY, THERE WOULD BE NOTHING TO PREVENT AN
ENTERPRISER FROM CLOSING ON HIS SLOWEST BUSINESS DAY, TO TAKE ADVANTAGE
OF THE WHOLE OF THE PROFITABLE WEEK-END TRADE, THEREBY CONVERTING THE
SUNDAY LABOR BAN, IN EFFECT, INTO A DAY-OF-REST-IN-SEVEN STATUTE, WITH
CHOICE OF THE DAY LEFT TO THE INDIVIDUAL.  ALL OF THE STATE EXEMPTING
STATUTES SEEM TO REFLECT THIS CONSIDERATION.  TEN OF THEM REQUIRE THAT
A PERSON CLAIMING EXCEPTION "CONSCIENTIOUSLY" BELIEVE IN THE SANCTITY
OF ANOTHER DAY OR "CONSCIENTIOUSLY" OBSERVE ANOTHER DAY AS THE
SABBATH.  (FN107)  FIVE DEMAND THAT HE KEEP ANOTHER DAY AS "HOLY
TIME."  (FN108) THREE ALLOW THE EXEMPTION ONLY TO MEMBERS OF A
"RELIGIOUS" SOCIETY OBSERVING ANOTHER DAY, (FN109) AND A FOURTH
PROVIDES FOR PROOF OF MEMBERSHIP IN SUCH A SOCIETY BY THE CERTIFICATE
OF A PREACHER OR OF ANY THREE ADHERENTS.  (FN110)  IN ILLINOIS THE
CLAIMANT MUST OBSERVE SOME DAY AS A "SABBATH," AND IN NEW JERSEY HE
MUST PROVE THAT HE DEVOTES THAT DAY TO RELIGIOUS EXERCISES.  (FN111)
CONNECTICUT, ONE OF THE JURISDICTIONS DEMANDING CONSCIENTIOUS BELIEF,
REQUIRES IN ADDITION THAT HE WHO SEEKS THE BENEFIT OF THE EXCEPTION
FILE A NOTICE OF SUCH BELIEF WITH THE PROSECUTING ATTORNEY.  (FN112) 

INDICATIVE OF THE PRACTICAL ADMINISTRATIVE DIFFICULTIES WHICH MAY
ARISE IN ATTEMPTS TO EFFECT, CONSISTENTLY WITH THE PURPOSES OF SUNDAY
CLOSING LEGISLATION, AN EXCEPTION FOR PERSONS CONSCIENTIOUSLY OBSERVING
ANOTHER DAY AS SABBATH, ARE THE PROVISIONS OF SEC. 53 OF THE BRITISH
SHOPS ACT, 1950, (FN113) CONTINUING IN SUBSTANCE SEC. 7 OF THE SHOPS
(SUNDAY TRADING RESTRICTION) ACT, 1936.  (FN114)  THESE WERE THE
PRODUCT OF EXPERIENCE WITH EARLIER FORMS OF EXEMPTIONS WHICH HAD PROVED
UNSATISFACTORY, (FN115) AND THE NEW 1936 PROVISIONS WERE ENACTED ONLY
AFTER THE CONSIDERATION AND REJECTION OF A NUMBER OF PROPOSED
ALTERNATIVES.  (FN116)  THEY ALLOW SHOPS WHICH ARE REGISTERED UNDER THE
P.M. ON SUNDAY.  APPLICATIONS FOR REGISTRATION MUST CONTAIN A
DECLARATION THAT THE SHOP OCCUPIER "CONSCIENTIOUSLY OBJECTS ON
RELIGIOUS GROUNDS TO CARRYING ON TRADE OR BUSINESS ON THE JEWISH
SABBATH," (FN117) AND ANY PERSON WHO, TO PROCURE REGISTRATION,
"KNOWINGLY OR RECKLESSLY MAKES AN UNTRUE STATEMENT OR UNTRUE
REPRESENTATION," IS SUBJECT TO FINE AND IMPRISONMENT.  WHENEVER UPON
REPRESENTATIONS MADE TO THEM THE LOCAL AUTHORITIES FIND REASON TO
BELIEVE THAT A REGISTERED OCCUPIER IS NOT A PERSON OF THE JEWISH
RELIGION OR "THAT A CONSCIENTIOUS OBJECTION ON RELIGIOUS GROUNDS  ...
IS NOT GENUINELY HELD," THE AUTHORITIES MAY FURNISH PARTICULARS OF THE
CASE TO A TRIBUNAL ESTABLISHED AFTER CONSULTATION WITH THE LONDON
COMMITTEE OF DEPUTIES OF THE BRITISH JEWS, (FN118) WHICH TRIBUNAL, IF
IN THEIR OPINION THE OCCUPIER IS NOT A PERSON OF THE JEWISH RELIGION OR
DOES NOT GENUINELY HOLD A CONSCIENTIOUS OBJECTION TO TRADE ON THE
JEWISH SABBATH, SHALL SO REPORT TO THE LOCAL AUTHORITIES; AND UPON THIS
REPORT THE OCCUPIER'S REGISTRATION IS TO BE REVOKED.  (FN119)  SURELY,
IN LIGHT OF THE DELICATE ENFORCEMENT PROBLEMS TO WHICH THESE PROVISIONS
BEAR WITNESS, THE LEGISLATIVE CHOICE OF A BLANKET SUNDAY BAN APPLICABLE
TO OBSERVERS OF ALL FAITHS CANNOT BE HELD UNREASONABLE.  A LEGISLATURE
MIGHT IN REASON FIND THAT THE ALTERNATIVE OF EXEMPTING SABBATARIANS
WOULD IMPEDE THE EFFECTIVE OPERATION OF THE SUNDAY STATUTES, PRODUCE
HARMFUL COLLATERAL EFFECTS, AND ENTAIL, ITSELF, A NOT INCONSIDERABLE
INTRUSION INTO MATTERS OF RELIGIOUS FAITH.  HOWEVER PREFERABLE,
PERSONALLY, ONE MIGHT DEEM SUCH AN EXCEPTION, I CANNOT FIND THAT THE
CONSTITUTION COMPELS IT. 

IT CANNOT, THEREFORE, BE SAID THAT MASSACHUSETTS AND PENNSYLVANIA
HAVE IMPOSED GRATUITOUS RESTRICTIONS UPON THE SUNDAY ACTIVITIES OF
PERSONS OBSERVING THE ORTHODOX JEWISH SABBATH IN ACHIEVING THE
LEGITIMATE SECULAR ENDS AT WHICH THEIR SUNDAY STATUTES MAY AIM.  THE
REMAINING QUESTION IS WHETHER THE IMPORTANCE TO THE PUBLIC OF THOSE
ENDS IS SUFFICIENT TO OUTWEIGH THE RESTRAINT UPON THE RELIGIOUS
EXERCISE OF ORTHODOX JEWISH PRACTICANTS WHICH THE RESTRICTION ENTAILS. 
SEE PRINCE V. MASSACHUSETTS, 321 U.S. 158; COX V. NEW HAMPSHIRE, 312
U.S. 569.  THE NATURE OF THE LEGISLATIVE PURPOSE IS THE PRESERVATION OF
A TRADITIONAL INSTITUTION WHICH ASSURES TO THE COMMUNITY A TIME DURING
WHICH THE MIND AND BODY ARE RELEASED FROM THE DEMANDS AND DISTRACTIONS
OF AN INCREASINGLY MECHANIZED AND COMPETITION-DRIVEN SOCIETY.  THE
RIGHT TO THIS RELEASE HAS BEEN CLAIMED BY WORKERS AND BY SMALL
ENTERPRISERS, ESPECIALLY BY RETAIL MERCHANDISERS, OVER CENTURIES, AND
FINDS CONTEMPORARY EXPRESSION IN LEGISLATION IN THREE-QUARTERS OF THE
STATES.  THE NATURE OF THE INJURY WHICH MUST BE BALANCED AGAINST IT IS
THE ECONOMIC DISADVANTAGE TO THE ENTERPRISER, AND THE INCONVENIENCE TO
THE CONSUMER, WHICH SUNDAY REGULATIONS IMPOSE UPON THOSE WHO CHOOSE TO
ADHERE TO THE SABBATARIAN TENETS OF THEIR FAITH. 

THESE STATUTES DO NOT MAKE CRIMINAL, DO NOT PLACE UNDER THE ONUS OF
CIVIL OR CRIMINAL DISABILITY, ANY ACT WHICH IS ITSELF PRESCRIBED BY THE
DUTIES OF THE JEWISH OR OTHER RELIGIONS.  THEY DO CREATE AN UNDENIABLE
FINANCIAL BURDEN UPON THE OBSERVERS OF ONE OF THE FUNDAMENTAL TENETS OF
CERTAIN RELIGIOUS CREEDS, A BURDEN WHICH DOES NOT FALL EQUALLY UPON
OTHER FORMS OF OBSERVANCE.  THIS WAS TRUE OF THE TAX WHICH THIS COURT
HELD AN UNCONSTITUTIONAL INFRINGEMENT OF THE FREE EXERCISE OF RELIGION
IN FOLLETT V. TOWN OF MCCORMICK, 321 U.S. 573.  BUT UNLIKE THE TAX IN
FOLLETT, THE BURDEN WHICH THE SUNDAY STATUTES IMPOSE IS AN INCIDENT OF
THE ONLY FEASIBLE MEANS TO ACHIEVEMENT OF THEIR PARTICULAR GOAL.  AND
AGAIN UNLIKE FOLLETT, THE MEASURE OF THE BURDEN IS NOT DETERMINED BY
FIXED LEGISLATIVE DECREE, BEYOND THE POWER OF THE INDIVIDUAL TO ALTER. 
UPON PERSONS WHO EARN THEIR LIVELIHOOD BY ACTIVITIES NOT PROHIBITED ON
SUNDAY, AND UPON THOSE WHOSE JOBS REQUIRE ONLY A FIVE-DAY WEEK, THE
BURDEN IS NOT CONSIDERABLE.  LIKE THE CUSTOMERS OF CROWN KOSHER SUPER
MARKET IN THE GALLAGHER CASE, THEY ARE INCONVENIENCED IN THEIR
SHOPPING.  THIS IS HARDLY TO BE ASSESSED AS AN INJURY OF PREPONDERANT
CONSTITUTIONAL WEIGHT.  THE BURDEN ON RETAIL SELLERS COMPETING WITH
SUNDAY-OBSERVING AND NON-OBSERVING RETAILERS IS CONSIDERABLY GREATER. 
BUT, WITHOUT MINIMIZING THE FACT OF THIS DISADVANTAGE, THE LEGISLATURE
MAY HAVE CONCLUDED THAT ITS SEVERITY MIGHT BE OFFSET BY THE INDUSTRY
AND COMMERCIAL INITIATIVE OF THE INDIVIDUAL MERCHANT.  MORE IS DEMANDED
OF HIM, ADMITTEDLY, WHETHER IN THE FORM OF ADDITIONAL LABOR OR OF
MATERIAL SACRIFICES, THAN IS DEMANDED OF THOSE WHO DO NOT CHOOSE TO
KEEP HIS SABBATH.  MORE WOULD BE DEMANDED OF HIM, OF COURSE, IN A STATE
IN WHICH THERE WERE NO SUNDAY LAWS AND IN WHICH HIS COMPETITORS CHOSE -
LIKE "TWO GUYS FROM HARRISON-ALLENTOWN" - TO DO BUSINESS SEVEN DAYS A
WEEK.  IN VIEW OF THE IMPORTANCE OF THE COMMUNITY INTERESTS WHICH MUST
BE WEIGHED IN THE BALANCE, IS THE DISADVANTAGE WROUGHT BY THE NON
EXEMPTING SUNDAY STATUTES AN IMPERMISSIBLE IMPOSITION UPON THE
SABBATARIAN'S RELIGIOUS FREEDOM?  EVERY COURT WHICH HAS CONSIDERED THE
QUESTION DURING A CENTURY AND A HALF HAS CONCLUDED THAT IT IS NOT. 
(FN120) THIS COURT SO CONCLUDED IN FRIEDMAN V. NEW YORK, 341 U.S. 907. 
ON THE BASIS OF THE CRITERIA FOR DETERMINING CONSTITUTIONALITY, AS
OPPOSED TO WHAT ONE MIGHT DESIRE AS A MATTER OF LEGISLATIVE POLICY, A
CONTRARY CONCLUSION CANNOT BE REACHED. 

                                    VI. 

TWO FURTHER GROUNDS OF UNCONSTITUTIONALITY ARE URGED IN ALL THESE
CASES, BASED UPON THE SELECTION IN THE CHALLENGED STATUTES OF THE
ACTIVITIES INCLUDED IN, OR EXCLUDED FROM, THE SUNDAY BAN.  FIRST IT IS
ARGUED THAT, IF THE AIM OF THE STATUTES IS TO SECURE A DAY OF PEACE AND
REPOSE, THE LAWS OF MASSACHUSETTS AND MARYLAND, BY THEIR EXCEPTIONS,
AND THE RETAIL SALES ACT OF PENNSYLVANIA, BY ITS ENUMERATION OF THE
ARTICLES WHOSE SALE IS FORBIDDEN, OPERATE SO IMPERFECTLY IN THE SERVICE
OF THIS AIM - SHOW SO LITTLE RATIONAL RELATION TO IT - THAT THEY MUST
BE ACCOUNTED AS ARBITRARY AND THEREFORE VIOLATIVE OF DUE PROCESS.  THE
EXTENSIVE RANGE OF RECREATIONAL AND COMMERCIAL SUNDAY ACTIVITY
PERMITTED IN THESE STATES IS SAID TO DEPRIVE THE STATUTES OF ANY
REASONABLE BASIS.  THE DISTINCTIONS DRAWN BY THE LAWS BETWEEN WHAT MAY
BE SOLD OR DONE AND WHAT MAY NOT, IT IS CLAIMED, ARE UNSUPPORTED BY
REASON.  SECOND, THESE CLAIMANTS ARGUE THAT THE SAME DISCRIMINATIONS
BETWEEN ITEMS WHICH MAY AND MAY NOT BE SOLD, AND IN SOME CASES BETWEEN
THE PERSONS WHO MAY AND THOSE WHO MAY NOT SELL IDENTICAL ITEMS, DEPRIVE
THEM OF THE EQUAL PROTECTION OF THE LAWS.    ALTHOUGH THESE CONTENTIONS
REQUIRE THE COURT TO EXAMINE SEPARATELY AND WITH PARTICULARITY THE
PROVISIONS OF EACH OF THE THREE STATES' STATUTES WHICH ARE ATTACKED,
THE GENERAL CONSIDERATIONS WHICH GOVERN THESE CASES ARE THE SAME.  IT
IS CLEAR THAT IN FASHIONING LEGISLATIVE REMEDIES BY FINE DISTINCTIONS
TO FIT SPECIFIC NEEDS, "THE RANGE OF THE STATE'S DISCRETION IS LARGE." 
BAIN PEANUT CO. V. PINSON, 282 U.S. 499, 501.  THIS IS ESPECIALLY SO
WHERE, BY THE NATURE OF ITS SUBJECT, REGULATION MUST TAKE ACCOUNT OF
TRADITIONAL AND PREVAILING LOCAL CUSTOMS.  SEE KOTCH V. BOARD OF RIVER
PORT PILOT COMM'RS, 330 U.S. 552.  "THE CONSTITUTION DOES NOT REQUIRE
THINGS WHICH ARE DIFFERENT IN FACT OR OPINION TO BE TREATED IN LAW AS
THOUGH THEY WERE THE SAME."  TIGNER V. TEXAS, 310 U.S. 141, 147. 
"EVILS IN THE SAME FIELD MAY BE OF DIFFERENT DIMENSIONS AND
PROPORTIONS, REQUIRING DIFFERENT REMEDIES.  OR SO THE LEGISLATURE MAY
THINK  ...  .  OR THE REFORM MAY TAKE ONE STEP AT A TIME, ADDRESSING
ITSELF TO THE PHASE OF THE PROBLEM WHICH SEEMS MOST ACUTE TO THE
LEGISLATIVE MIND  ...  .  THE LEGISLATURE MAY SELECT ONE PHASE OF ONE
FIELD AND APPLY A REMEDY THERE, NEGLECTING THE OTHERS." WILLIAMSON V.
LEE OPTICAL, INC., 348 U.S. 483, 489. 

NEITHER THE DUE PROCESS NOR THE EQUAL PROTECTION CLAUSE DEMANDS
LOGICAL TIDINESS.  METROPOLIS THEATRE CO. V. CITY OF CHICAGO, 228 U.S.
61.  NO FINICKY OR EXACT CONFORMITY TO ABSTRACT CORRELATION IS REQUIRED
OF LEGISLATION.  THE CONSTITUTION IS SATISFIED IF A LEGISLATURE
RESPONDS TO THE PRACTICAL LIVING FACTS WITH WHICH IT DEALS.  THROUGH
WHAT PRECISE POINTS IN A FIELD OF MANY COMPETING PRESSURES A
LEGISLATURE MIGHT MOST SUITABLY HAVE DRAWN ITS LINES IS NOT A QUESTION
FOR JUDICIAL RE-EXAMINATION.  IT IS ENOUGH TO SATISFY THE CONSTITUTION
THAT IN DRAWING THEM THE PRINCIPLE OF REASON HAS NOT BEEN DISREGARDED. 
SEE GOESAERT V. CLEARY, 335 U.S. 464.  AND WHAT DEGREE OF UNIFORMITY
REASON DEMANDS OF A STATUTE IS, OF COURSE, A FUNCTION OF THE COMPLEXITY
OF THE NEEDS WHICH THE STATUTE SEEKS TO ACCOMMODATE. 

IN THE CASE OF SUNDAY LEGISLATION, AN EXTREME COMPLEXITY OF NEEDS IS
EVIDENT.  THIS IS SO, FIRST, BECAUSE ONE OF THE PRIME OBJECTIVES OF THE
LEGISLATION IS THE PRESERVATION OF AN ATMOSPHERE - A SUBTLE
DESIDERATUM, ITSELF THE PRODUCT OF A PECULIAR AND CHANGING SET OF LOCAL
CIRCUMSTANCES AND LOCAL TRADITIONS.  BUT IN ADDITION, IN THE
ACHIEVEMENT OF THAT END, HOWEVER FORMULATED, NUMEROUS COMPROMISES MUST
BE MADE.  NOT ALL ACTIVITY CAN HALT ON SUNDAY.  SOME OF THE VERY
OPERATIONS WHOSE DOINGS MOST CONTRIBUTE TO THE RUSH AND CLAMOR OF THE
WEEK MUST GO ON THROUGHOUT THAT DAY AS WELL, WHETHER BECAUSE LIFE
DEPENDS UPON THEM, OR BECAUSE THE COST OF STOPPING AND RESTARTING THEM
IS SIMPLY TOO GREAT, OR BECAUSE TO BE WITHOUT THEIR SERVICES WOULD BE
MORE DISRUPTIVE OF PEACE THAN TO HAVE THEM CONTINUE.  MANY ACTIVITIES
HAVE A DOUBLE ASPECT:  PROVIDING ENTERTAINMENT OR RECREATION FOR SOME
PERSONS, THEY ENTAIL LABOR AND WORKDAY TEDIUM FOR OTHERS.  (FN121)
COGENT EXPRESSION OF THE INTRICATE PROBLEMS WHICH THESE VARIOUS
COUNTERVALENT PRESSURES POSE WAS GIVEN BY MR. LLOYD IN THE COURSE OF
THE DEBATE IN COMMONS ON THE ENGLISH SUNDAY CLOSING ACT OF 1936: 

"  ...  WE SHOULD ALL LIKE TO SEE SHOPKEEPERS AND THEIR STAFFS AS FAR
AS POSSIBLE IN A POSITION TO OBSERVE SUNDAY IN A NORMAL WAY LIKE MOST
OTHER PEOPLE.  ON THE OTHER HAND, WE KNOW THAT THERE ARE CERTAIN
REASONABLE NEEDS OF THE PUBLIC WHICH REQUIRE TO BE MET EVEN ON A
SUNDAY, AND I THINK WE SHOULD ALSO ALL AGREE THAT THE FEWEST POSSIBLE
NUMBER OF PEOPLE SHOULD HAVE TO GIVE UP THEIR SUNDAY IN ORDER TO CATER
FOR THOSE PUBLIC NEEDS.  I THINK WE SHOULD PROBABLY REACH A LARGE
MEASURE OF GENERAL AGREEMENT ON THE PRINCIPLE THAT ONLY THOSE SHOPS
SHOULD REMAIN OPEN WHICH ARE ESSENTIAL TO MEET THE REQUIREMENTS OF THE
PUBLIC AND ONLY TO THE EXTENT THAT THEY ARE ESSENTIAL  ...  .
THEREFORE, THE PROBLEM IS TO STRIKE A JUST BALANCE BETWEEN THE
REASONABLE NEEDS OF THE PUBLIC AND THE EQUALLY REASONABLE DESIRE OF THE
GREAT BULK OF THOSE ENGAGED IN THE DISTRIBUTIVE TRADES TO ENJOY THEIR
SHARE OF SUNDAY REST AND RECREATION. 

"IF THAT IS ACCEPTED, IT FOLLOWS AT ONCE THAT THE CRUX OF ANY BILL OF
THIS KIND LIES IN THE SCOPE AND THE NATURE OF THE EXEMPTIONS TO THE
GENERAL PRINCIPLE OF CLOSING ON SUNDAY  ...  ."  (FN122) 

MOREOVER, THE VARIATION FROM ACTIVITY TO ACTIVITY IN THE DEGREE OF
DISTURBANCE WHICH SUNDAY OPERATION ENTAILS, AND THE SIMILAR VARIATION
IN DEGREES OF TEMPTATION TO FLOUT THE LAW, AND IN DEGREES OF ABILITY TO
ABSORB AND IGNORE VARIOUS LEGAL PENALTIES, MAKE EXCEEDINGLY DIFFICULT
THE DEVISING OF EFFECTIVE, YET COMPREHENSIVELY FAIR, SCHEMES OF
SANCTIONS. 

EARLY IN THE HISTORY OF THE SUNDAY LAWS THERE DEVELOPED MECHANISMS
WHICH SERVED TO ADAPT THEIR WIDE GENERAL PROHIBITIONS BOTH TO PRACTICAL
EXIGENCIES AND TO THE EVOLVING CONCERNS AND DESIRES OF THE PUBLIC. 
WHERE IT WAS FOUND THAT PERSONS IN CERTAIN ACTIVITIES TENDED WITH
PARTICULAR FREQUENCY TO ENGAGE IN VIOLATIONS, THOSE ACTIVITIES WERE
SINGLED OUT FOR HARSHER PUNISHMENT.  (FN123)  ON THE OTHER HAND,
PRACTICES FOUND NECESSARY OR CONVENIENT TO POPULAR HABITS WERE
SPECIFICALLY EXCEPTED FROM THE BAN.  (FN124)  UNDER THE BASIC ENGLISH
SUNDAY STATUTE, 29 CHARLES II, C. 7, A WIDE GENERAL EXCEPTION OBTAINED
FOR "WORKS OF NECESSITY AND CHARITY"; (FN125) THIS PROVISION FOUND ITS
WAY INTO THE AMERICAN COLONIAL LAWS, (FN126) AND HAS DESCENDED INTO ALL
OF THEIR SUCCESSORS CURRENTLY IN FORCE.  (FN127)  THE EFFECT OF THE
PHRASE HAS BEEN TO GIVE THE COURTS A WIDE RANGE OF DISCRETION IN
DETERMINING EXCEPTIONS.  BUT REASONABLE MEN CAN AND DO DIFFER AS TO
WHAT IS "NECESSITY."  (FN128) IN EVERY JURISDICTION LEGISLATURES,
PRESUMABLY DEEMING THEMSELVES FITTER TRIBUNALS FOR DECISIONS OF THIS
SORT THAN WERE COURTS, ACTED TO RESOLVE THE QUESTION AGAINST, OR IN
FAVOR OF, VARIOUS PARTICULAR ACTIVITIES.  SOME PURSUITS WERE EXPRESSLY
DECLARED NOT WORKS OF NECESSITY, OR WERE SPECIFICALLY BANNED.  (FN129)
OTHERS WERE EXPRESSLY PERMITTED:  SERIES OF EXCEPTIONS, GIVING THE LAWS
RESILIENCY IN THE COURSE OF CULTURAL CHANGE, PROLIFERATED.  (FN130)
TODAY, AS APPENDIX II TO THIS OPINION, POST, P. 551, SHOWS, THE GENERAL
PATTERN IN OVER HALF OF THE STATES AND IN ENGLAND (FN131) IS SIMILAR. 
BROAD GENERAL PROHIBITIONS ARE QUALIFIED BY NUMEROUS PRECISE
EXEMPTIONS, OFTEN WITH PROVISION FOR LOCAL VARIATION WITHIN A STATE,
AND ARE FREQUENTLY BOLSTERED BY SPECIAL PROVISIONS MORE HEAVILY
PENALIZING NAMED ACTIVITIES.  THE REGULATIONS OF MARYLAND,
MASSACHUSETTS AND PENNSYLVANIA ARE NOT ATYPICAL IN THIS REGARD,
ALTHOUGH THEY ARE UNDOUBTEDLY AMONG THE MORE COMPLEX OF THE STATUTORY
PATTERNS. 

THE DEGREE OF EXPLICITNESS OF THESE PROVISIONS IN SO MANY
JURISDICTIONS DEMONSTRATES THE INTRICACY OF THE ADJUSTMENTS WHICH THEY
ARE DESIGNED TO MAKE.  HOW DELICATE THOSE ADJUSTMENTS CAN BE IS
STRIKINGLY ILLUSTRATED, ONCE AGAIN, BY A REMARK OF THE SPONSOR OF THE
BRITISH CLOSING BILL OF 1936, THE MOST EXTENSIVELY DOCUMENTED MODERN
SUNDAY STATUTE.  SUPPORTING AN AMENDMENT WHICH PERMITTED LOCAL
AUTHORITY TO AUTHORIZE THE OPENING, DURING A PORTION OF THE YEAR, OF
SHOPS IN AREAS FREQUENTED AS SEASIDE RESORTS, MR. LOFTUS SAID: 

"  ...  IN A BILL SUCH AS THIS ONE MUST HAVE ELASTICITY  ...  .  WE
HAD A UNANIMOUS DEMAND FROM THE ASSOCIATION OF FISH FRYERS,
REPRESENTING THE TRADE ALL OVER ENGLAND, ASKING THAT FISH-FRYING SHOPS
SHOULD BE CLOSED ON SUNDAYS, AND WE AGREED AND TOOK THEM OUT OF THE
FIRST SCHEDULE WHICH EXEMPTS SHOPS SELLING MEALS OR REFRESHMENTS.  BUT
THEN WE HEARD FROM BLACKPOOL, WHICH IS VISITED EVERY YEAR BY, I
SUPPOSE, MILLIONS OF POOR PEOPLE, COTTON OPERATIVES AND OTHERS, WHO
LIKE TO GET CHEAP MEALS OF FRIED FISH ON SUNDAY AFTERNOONS AND SUNDAY
EVENINGS, AND WE FEEL THERE MUST BE SOME PROVISION IN THE BILL TO ALLOW
THE GRANT OF EXEMPTIONS IN SUCH A CASE.  THE DIFFICULTY IS TO AVOID
PUTTING IN A CLAUSE WHICH IS OPEN TO ABUSE AND I SUBMIT THAT THERE ARE
TWO PROVISIONS WHICH PROVIDE A SAFEGUARD.  THE FIRST IS THAT THE LOCAL
AUTHORITY MUST APPROVE THE GRANTING OF EXEMPTIONS, AND THE SECOND IS
THAT THE LOCAL AUTHORITY CANNOT APPROVE UNLESS TWO-THIRDS OF THOSE
PARTICULAR SHOPS IN ITS LOCALITY ARE IN FAVOUR OF EXEMPTION.  HAVING NO
DESIRE THAT HARDSHIPS SHOULD BE INFLICTED ON POOR CLASS PEOPLE I WOULD
ASK THE HOUSE TO ACCEPT THE CLAUSE."  (FN132) 

CERTAINLY, WHEN RELEVANT CONSIDERATIONS OF POLICY DEMAND DECISIONS
AND DISTINCTIONS SO FINE, COURTS MUST ACCORD TO THE LEGISLATURE A WIDE
RANGE OF POWER TO CLASSIFY AND TO DELINEATE.  IT IS TRUE THAT, UNLIKE
THEIR VIRTUALLY UNANIMOUS ATTITUDE ON THE ISSUE OF RELIGIOUS FREEDOM,
STATE COURTS HAVE NOT ALWAYS SUSTAINED SUNDAY LEGISLATION AGAINST THE
CHARGE OF UNCONSTITUTIONAL DISCRIMINATION.  STATUTES AND ORDINANCES
HAVE BEEN STRUCK DOWN AS ARBITRARY (FN133) OR AS VIOLATIVE OF STATE
CONSTITUTIONAL PROHIBITIONS OF SPECIAL LEGISLATION.  (FN134)  A FAR
GREATER NUMBER OF COURTS, IN SIMILAR CLASSES OF CASES, HAVE SUSTAINED
THE LEGISLATION.  (FN135)  BUT THE VERY DIVERSITY OF JUDICIAL OPINION
AS TO WHAT IS REASONABLE CLASSIFICATION - LIKE THE CONFLICTING VIEWS ON
WHAT IS SUCH "NECESSITY" AS WILL JUSTIFY SUNDAY OPERATIONS - TESTIFIES
THAT THE QUESTION OF INCLUSION WITH REGARD TO SUNDAY BANS IS ONE WHERE
JUDGMENTS RATIONALLY DIFFER, AND HENCE WHERE A STATE'S DETERMINATIONS
MUST BE GIVEN EVERY FAIR PRESUMPTION OF A REASONABLE SUPPORT IN FACT. 
THE RESTRICTED SCOPE OF THIS COURT'S REVIEW OF STATE REGULATORY
LEGISLATION UNDER THE EQUAL PROTECTION CLAUSE IS OF LONG STANDING. 
LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-79.  THE
APPLICABLE PRINCIPLES ARE THAT A STATE STATUTE MAY NOT BE STRUCK DOWN
AS OFFENSIVE OF EQUAL PROTECTION IN ITS SCHEMES OF CLASSIFICATION
UNLESS IT IS OBVIOUSLY ARBITRARY, AND THAT, EXCEPT IN THE CASE OF A
STATUTE WHOSE DISCRIMINATIONS ARE SO PATENTLY WITHOUT REASON THAT NO
CONCEIVABLE SITUATION OF FACT COULD BE FOUND TO JUSTIFY THEM, THE
CLAIMANT WHO CHALLENGES THE STATUTE BEARS THE BURDEN OF AFFIRMATIVE
DEMONSTRATION THAT IN THE ACTUAL STATE OF FACTS WHICH SURROUND ITS
OPERATION, ITS CLASSIFICATIONS LACK RATIONALITY. 

WHEN THESE STANDARDS ARE APPLIED, FIRST, TO THE MARYLAND STATUTE
CHALLENGED IN THE MCGOWAN CASE, APPELLANTS' CLAIMS UNDER THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES SHOW THEMSELVES CLEARLY
UNTENABLE.  COUNSEL CONTEND THAT THE SUNDAY SALES PROHIBITION, MD. CODE
ANN., 1957, ART. 27, SEC. 521, IS RENDERED ARBITRARY BY ITS EXCEPTION
OF RETAIL SALES OF TOBACCO ITEMS AND SOFT DRINKS, ICE AND ICE CREAM,
CONFECTIONERY, MILK, BREAD, FRUIT, GASOLINE PRODUCTS, NEWSPAPERS AND
PERIODICALS, AND OF DRUGS AND MEDICAL SUPPLIES BY APOTHECARIES - BY THE
FURTHER EXEMPTION IN ANNE ARUNDEL COUNTY, UNDER SEC. 509, OF CERTAIN
RECREATIONAL ACTIVITIES AND SALES INCIDENTAL TO THEM - AND BY THE
PERMISSIBILITY UNDER OTHER STATE AND LOCAL REGULATIONS OF VARIOUS
AMUSEMENTS AND PUBLIC ENTERTAINMENTS ON SUNDAY, SUNDAY BEER AND LIQUOR
SALES, AND SUNDAY PINBALL MACHINES AND BINGO.  THE SHORT ANSWER IS THAT
THESE KINDS OF COMMODITY EXCEPTIONS, AND MOST OF THESE EXCEPTIONS FOR
AMUSEMENTS AND ENTERTAINMENTS, CAN BE FOUND IN THE COMPREHENSIVE SUNDAY
STATUTES OF ENGLAND, PUERTO RICO, A DOZEN AMERICAN STATES, AND MANY
OTHER COUNTRIES HAVING UNIFORM-DAY-OF-REST LEGISLATION.  (FN136)
SURELY UNREASON CANNOT BE SO WIDESPREAD.  THE NOTION THAT, WITH THESE
MATTERS EXCEPTED, THE MARYLAND STATUTE LACKS ALL RATIONAL FOUNDATION IS
BASELESS.  THE EXCEPTIONS RELATE TO PRODUCTS AND SERVICES WHICH A
LEGISLATURE COULD REASONABLY FIND NECESSARY TO THE PHYSICAL AND MENTAL
HEALTH OF THE PEOPLE OR TO THEIR RECREATION AND RELAXATION ON A DAY OF
REPOSE.  OTHER SALES ACTIVITY AND, UNDER ART. 27, SEC. 492, ALL OTHER
LABOR, ARE FORBIDDEN.  THAT MORE OR FEWER ACTIVITIES THAN FALL WITHIN
THE EXCEPTIONS COULD WITH EQUAL RATIONALITY HAVE BEEN EXCLUDED FROM THE
GENERAL BAN DOES NOT MAKE IRRATIONAL THE SELECTION WHICH HAS ACTUALLY
BEEN MADE.  THERE IS PRESENTED IN THIS RECORD NOT A TRACE OF EVIDENCE
AS TO THE HABITS AND CUSTOMS OF THE POPULATION OF MARYLAND OR OF ANNE
ARUNDEL COUNTY, NOTHING THAT SUGGESTS THAT THE PATTERN OF LEGISLATION
WHICH THEIR REPRESENTATIVES HAVE DEVISED IS NOT REASONABLY RELATED TO
LOCAL CIRCUMSTANCES DETERMINING THEIR WAYS OF LIFE.  APPELLANTS HAVE
WHOLLY FAILED TO MEET THEIR BURDEN OF PROOF. 

COUNSEL FOR MCGOWAN URGE THAT THE ALLOWANCE, LIMITED TO ANNE ARUNDEL
COUNTY, OF RETAIL SALES OF MERCHANDISE CUSTOMARILY SOLD AT BATHING
BEACHES, BATHHOUSES, AMUSEMENT PARKS AND DANCING SALOONS, VIOLATES THE
EQUAL PROTECTION OF THE LAWS BOTH BY DISCRIMINATING BETWEEN ANNE
ARUNDEL RETAILERS AND THOSE IN OTHER COUNTIES, AND BY DISCRIMINATING
AMONG CLASSES OF PERSONS WITHIN ANNE ARUNDEL COUNTY WHO COMPETE IN
SALES OF THE SAME ARTICLES.  (FN137)  CLEARLY APPELLANTS, WHO WERE
CONVICTED FOR SELLING WITHIN THE COUNTY, WOULD NOT ORDINARILY HAVE
STANDING TO RAISE THE ISSUE OF POSSIBLE DISCRIMINATION AGAINST OUT-OF
COUNTY MERCHANTS; IN ANY EVENT, ON THIS RECORD, IT IS DUBIOUS THAT THE
CONTENTION WAS ADEQUATELY RAISED BELOW.  SUFFICE TO SAY, FOR PURPOSES
OF THE DUE PROCESS ISSUE WHICH APPELLANTS DID RAISE, THAT THE PROVISION
OF DIFFERENT SUNDAY REGULATIONS FOR DIFFERENT REGIONS OF A STATE IS NOT
IPSO FACTO ARBITRARY.  SEE SALSBURG V. MARYLAND, 346 U.S. 545; MISSOURI
V. LEWIS, 101 U.S. 22, 31.  (FN138) 

AS FOR THE ASSERTED DISCRIMINATION IN FAVOR OF THOSE WHO SELL AT THE
BEACH OR THE PARK ARTICLES NOT PERMITTED TO BE SOLD ELSEWHERE, THE
ANSWER MUST BE THAT BETWEEN SUCH BEACH-SIDE ENTERPRISERS AND THE
GENERAL SUBURBAN MERCHANDISING STORE AT WHICH APPELLANTS ARE EMPLOYED
THERE IS A REASONABLE LINE OF DEMARCATION.  THE REASON OF THE EXEMPTION
DICTATES THE HUMAN LOGIC OF ITS SCOPE.  THE LEGISLATURE HAS FOUND IT
DESIRABLE THAT PERSONS SEEKING CERTAIN FORMS OF RECREATION ON SUNDAY
HAVE THE CONVENIENCE OF PURCHASING ON THAT DAY ITEMS WHICH ADD
ENJOYMENT TO THE RECREATION AND WHICH, PERHAPS, COULD NOT OR WOULD NOT
BE PROVIDED FOR BY A VACATIONER PRIOR TO THE DAY OF HIS SUNDAY OUTING. 
ON THE OTHER HAND, THE POLICY OF SECURING TO THE MAXIMUM POSSIBLE
NUMBER OF DISTRIBUTIVE EMPLOYEES THEIR SUNDAY OFF MIGHT REASONABLY
PRECLUDE ALLOWING EVERY RETAIL ESTABLISHMENT IN THE COUNTY TO OPEN TO
SERVE THIS CONVENIENCE.  A TENABLE RESOLUTION, SURELY, IS TO PERMIT
THESE PARTICULAR SALES ONLY ON THE PREMISES WHERE THE ITEMS WILL BE
NEEDED AND USED.  THE ENFORCEMENT PROBLEM WHICH COULD ARISE FROM
PERMITTING GENERAL MERCHANDISING OUTLETS TO OPEN FOR THE SALE OF THESE
ITEMS ALONE, BUT NOT FOR THE SALE OF THOUSANDS OF OTHER ITEMS AT
ADJACENT COUNTERS AND SHELVES, MIGHT IN ITSELF JUSTIFY THE LIMITATION
OF THE EXCEPTION TO THE GROUP OF ON-THE-PREMISES MERCHANTS WHO ARE LESS
LIKELY TO STOCK ARTICLES EXTRANEOUS TO THE USE OF THE ENUMERATED
AMUSEMENT FACILITIES. 

THE MASSACHUSETTS STATUTE ATTACKED IN THE GALLAGHER CASE CONTAINS A
WIDER RANGE OF EXCEPTIONS BUT, AGAIN, NONE THAT THIS RECORD SHOWS TO BE
PATENTLY BASELESS AND THEREFORE CONSTITUTIONALLY IMPERMISSIBLE.  THE
COURT BELOW BELIEVED THAT REASON WAS OFFENDED BY SUCH PROVISIONS AS
THOSE WHICH ALLOW, APPARENTLY, DIGGING FOR CLAMS BUT NOT DREDGING FOR
OYSTERS, OR WHICH PERMIT CERTAIN PROFESSIONAL SPORTS DURING THE HOURS
FROM 1:30 TO 6:30 P.M. WHILE RESTRICTING THEIR AMATEUR COUNTERPARTS TO
2 TO 6, OR WHICH MAKE LAWFUL (AS THE COURT BELOW READ THE STATUTE)
SUNDAY PUSHCART VENDING BY CONSCIENTIOUS SABBATARIANS, BUT NOT SUNDAY
VENDING WITHIN A BUILDING.  BUT THE RECORD BELOW, ON THE BASIS OF WHICH
A FEDERAL COURT HAS BEEN ASKED TO ENJOIN THE ENFORCEMENT OF A STATE
STATUTE, CONTAINS NO EVIDENCE CONCERNING CLAM-DIGGING OR OYSTER
DREDGING, NOTHING TO INDICATE THAT THESE TWO ACTIVITIES HAVE ANYTHING
MORE IN COMMON - REQUIRING SIMILAR TREATMENT - THAN THAT IN EACH THERE
IS INVOLVED THE PURSUIT OF MOLLUSCA.  THERE IS NOTHING IN THE RECORD
CONCERNING PROFESSIONAL OR AMATEUR ATHLETIC EVENTS, AND CERTAINLY
NOTHING TO SUPPORT THE CONCLUSION THAT THE PROBLEM OF SUNDAY REGULATION
OF PUSHCARTS IS SO SIMILAR TO THE PROBLEM OF SUNDAY REGULATION OF
INDOOR MARKETS AS TO REQUIRE UNIFORM TREATMENT FOR BOTH.  (FN139)
THESE VARIOUS DIFFERENTLY TREATED SITUATIONS MAY BE DIFFERENT IN FACT,
OR THEY MAY NOT.  A STATUTE IS NOT TO BE STRUCK DOWN ON SUPPOSITION. 

IT IS TRUE, AS APPELLEES THERE CLAIM, THAT CROWN KOSHER SUPER MARKET
MAY NOT SELL ON SUNDAY PRODUCTS WHICH OTHER RETAIL ESTABLISHMENTS MAY
SELL ON THAT DAY:  BREAD (WHICH MAY BE SOLD DURING CERTAIN HOURS BY
INNKEEPERS, COMMON VICTUALLERS, CONFECTIONERS AND FRUITERERS, AND,
ALONG WITH OTHER BAKERY PRODUCTS, BY BAKERS), CONFECTIONERY, FROZEN
DESSERTS AND DESSERT MIX, AND SODA WATER (WHICH MAY BE SOLD BY
INNKEEPERS, COMMON VICTUALLERS, CONFECTIONERS AND FRUITERERS, AND
DRUGGISTS), TOBACCO (WHICH MAY BE SOLD BY INNKEEPERS, COMMON
VICTUALLERS, DRUGGISTS, AND REGULAR NEWSDEALERS), ETC. (THE SALE OF
DRUGS AND NEWSPAPERS ON SUNDAY IS PERMITTED GENERALLY.)  BUT ALTHOUGH
CROWN KOSHER UNDOUBTEDLY SUFFERS AN ELEMENT OF COMPETITIVE DISADVANTAGE
FROM THESE PROVISIONS, THE PROVISIONS THEMSELVES ARE NOT IRRATIONAL. 
THEIR PURPOSE, APPARENTLY, IS TO PERMIT DEALERS SPECIALIZING IN CERTAIN
PRODUCTS WHOSE DISTRIBUTION ON SUNDAY IS REGARDED AS NECESSARY, TO SELL
THOSE PRODUCTS AND ALSO SUCH OTHER AMONG THE SAME GROUP OF NECESSARIES
AS ARE GENERALLY FOUND SOLD TOGETHER WITH THE PRODUCTS IN WHICH THEY
SPECIALIZE, THUS FOSTERING THE MAXIMUM DISSEMINATION OF THE PERMITTED
PRODUCTS WITH THE MINIMUM NUMBER OF RETAIL EMPLOYEES REQUIRED TO WORK
TO DISSEMINATE THEM.  SHOPS SUCH AS NEWSDEALERS, DRUGGISTS, AND
CONFECTIONERS MAY IN MASSACHUSETTS TEND, FOR ALL WE KNOW, TO BE
SMALLER, LESS NOISY, MORE WIDELY DISTRIBUTED SO THAT ACCESS TO THEM
FROM RESIDENTIAL AREAS ENTAILS LESS TRAVELING, THAN IS THE CASE WITH
OTHER STORES.  THEY MAY TEND TO HIRE FEWER EMPLOYEES.  THEY MAY
PRESENT, BECAUSE THEY SPECIALIZE IN PRODUCTS WHOSE SALE IS PERMITTED,
LESS OF A POLICING PROBLEM THAN WOULD GENERAL MARKETS SELLING THESE AND
MANY OTHER PRODUCTS.  (FN140)  AGAIN THERE IS NOTHING IN THE RECORD TO
SUPPORT THE CONCLUSION THAT MASSACHUSETTS HAS FAILED TO AFFORD TO THE
CROWN KOSHER SUPER MARKET TREATMENT WHICH IS EQUIVALENT TO THAT ENJOYED
BY ALL OTHER RETAILERS OF A CLASS NOT RATIONALLY DISTINGUISHABLE FROM
CROWN.  "THE PROHIBITION OF THE EQUAL PROTECTION CLAUSE GOES NO FURTHER
THAN THE INVIDIOUS DISCRIMINATION.  WE CANNOT SAY THAT THAT POINT HAS
BEEN REACHED HERE."  WILLIAMSON V. LEE OPTICAL, INC., 348 U.S. 483,
489. 

NOR, ON THE RECORD OF THE MCGINLEY CASE, CAN ANY OTHER CONCLUSION BE
REACHED AS TO THE 1959 PENNSYLVANIA SUNDAY RETAIL SALES ACT. 
APPELLANTS IN THIS CASE ARGUE THAT TO PUNISH BY A FINE OF UP TO ONE
HUNDRED DOLLARS PER SALE - OR TWO HUNDRED DOLLARS PER SALE WITHIN ONE
YEAR AFTER THE FIRST OFFENSE - THE RETAIL SELLING OF SOME TWENTY
ENUMERATED BROAD CATEGORIES OF COMMODITIES, WHILE PUNISHING ALL OTHER
SALES AND LABORING ACTIVITY BY THE FOUR-DOLLARS-PER-SUNDAY FINE FIXED
BY THE EARLIER LORD'S DAY STATUTE, (FN141) IS ARBITRARY AND VIOLATIVE
OF EQUAL PROTECTION.  BUT THE COURT BELOW FOUND, AND IN THIS IT IS
SUPPORTED BY THE LEGISLATIVE HISTORY OF THE 1959 ACT, (FN142) THAT THE
ENACTMENT PROVIDING SEVERER PENALTIES FOR THESE CLASSES OF SALES WAS
RESPONSIVE TO THE APPEARANCE IN THE COMMONWEALTH, ONLY SHORTLY BEFORE
THE ACT'S PASSAGE, OF A NEW KIND OF LARGE-SCALE MERCANTILE ENTERPRISE
WHICH, ABSORBING WITHOUT DIFFICULTY A FOUR-DOLLAR-A-WEEK FINE, MADE A
PROFITABLE BUSINESS OF PERSISTENT VIOLATION OF THE EARLIER STATUTE. 
THESE NEW ENTERPRISES MAY HAVE ATTRACTED A DISTURBING VOLUME OF SUNDAY
TRAFFIC; THEY MAY HAVE EMPLOYED MORE RETAIL SALESMEN, AND UNDER
DIFFERENT CONDITIONS, THAN OTHER KINDS OF BUSINESSES IN THE STATE; SOME
OF THE LEGISLATORS, APPARENTLY, SO BELIEVED.  (FN143)  THE DANGER MAY
HAVE BEEN APPREHENDED THAT NOT ONLY WOULD THESE VIOLATIONS OF LONG
STANDING STATE LEGISLATION CONTINUE, BUT THAT COMPETITION WOULD FORCE
OPEN OTHER ENTERPRISES WHICH HAD FOR YEARS CLOSED ON SUNDAY.  UNDER
THIS THREAT THE 1959 STATUTE WAS DESIGNED.  IT APPLIES NOT ONLY TO THE
NEW MERCHANDISERS - IF THAT WERE SO, QUITE OBVIOUSLY, DIFFERENT
CONSTITUTIONAL PROBLEMS WOULD ARISE.  RATHER IT SINGLES OUT THE AREA
WHERE A DANGER HAS BEEN MADE MOST EVIDENT, AND WITHIN THAT AREA TREATS
ALL BUSINESS ENTERPRISES EQUALLY.  THAT IN SO DOING IT MAY HAVE DRAWN
THE LINE BETWEEN THE SALE OF A SOFA COVER, PUNISHED BY A HUNDRED-DOLLAR
FINE, AND THE SALE OF AN AUTOMOBILE SEAT COVER, PUNISHED BY A FOUR
DOLLAR FINE, IS NOT SUFFICIENT TO VOID THE LEGISLATION.  "A STATE MAY
CLASSIFY WITH REFERENCE TO THE EVIL TO BE PREVENTED, AND  ...  IF THE
CLASS DISCRIMINATED AGAINST IS OR REASONABLY MIGHT BE CONSIDERED TO
DEFINE THOSE FROM WHOM THE EVIL MAINLY IS TO BE FEARED, IT PROPERLY MAY
BE PICKED OUT.  A LACK OF ABSTRACT SYMMETRY DOES NOT MATTER.   THE
QUESTION IS A PRACTICAL ONE DEPENDENT UPON EXPERIENCE.  THE DEMAND FOR
SYMMETRY IGNORES THE SPECIFIC DIFFERENCE THAT EXPERIENCE IS SUPPOSED TO
HAVE SHOWN TO MARK THE CLASS.  IT IS NOT ENOUGH TO INVALIDATE THE LAW
THAT OTHERS MAY DO THE SAME THING AND GO UNPUNISHED, IF, AS A MATTER OF
FACT, IT IS FOUND THAT THE DANGER IS CHARACTERISTIC OF THE CLASS
NAMED."  MR. JUSTICE HOLMES, IN PATSONE V. PENNSYLVANIA, 232 U.S. 138,
144. 

EVEN LESS SHOULD A LEGISLATURE BE REQUIRED TO HEW THE LINE OF LOGICAL
EXACTNESS WHERE THE STATUTORY DISTINCTION CHALLENGED IS MERELY ONE
WHICH SETS APART OFFENSES SUBJECT TO PENALTIES OF DIFFERING DEGREES OF
SEVERITY, NOT ONE WHICH DIVIDES THE LAWFUL FROM THE UNLAWFUL. 
"JUDGMENT ON THE DETERRENT EFFECT OF THE VARIOUS WEAPONS IN THE ARMORY
OF THE LAW CAN LAY LITTLE CLAIM TO SCIENTIFIC BASIS.  SUCH JUDGMENT AS
YET IS LARGELY A PROPHECY BASED ON MEAGER AND UNINTERPRETED EXPERIENCE
...  .

"  ...  MOREOVER, THE WHOLE PROBLEM OF DETERRENCE IS RELATED TO STILL
WIDER CONSIDERATIONS AFFECTING THE TEMPER OF THE COMMUNITY IN WHICH LAW
OPERATES.  THE TRADITIONS OF A SOCIETY, THE HABITS OF OBEDIENCE TO LAW,
THE EFFECTIVENESS OF THE LAW-ENFORCING AGENCIES, ARE ALL PECULIARLY
MATTERS OF TIME AND PLACE.  THEY ARE THUS MATTERS WITHIN LEGISLATIVE
COMPETENCE."  TIGNER V. TEXAS, 310 U.S. 141, 148, 149.  APPELLANTS IN
MCGINLEY, LIKE APPELLANTS IN THE MCGOWAN AND APPELLEES IN THE GALLAGHER
CASES, HAVE HAD FULL OPPORTUNITY TO DEMONSTRATE THE ARBITRARINESS OF
THE STATUTE WHICH THEY CHALLENGE.  ON THIS RECORD THEY HAVE ENTIRELY
FAILED TO SATISFY THE BURDEN WHICH THEY CARRY.  FRIEDMAN V. NEW YORK,
341 U.S. 907; MCGEE V. NORTH CAROLINA, 346 U.S. 802; TOWERY V. NORTH
CAROLINA, 347 U.S. 925.  CF. MISSOURI, K.&T.R. CO. V. CADE, 233 U.S.
642. 

THE BRAUNFELD CASE, HOWEVER, COMES HERE IN A DIFFERENT POSTURE. 
APPELLANTS, PLAINTIFFS BELOW, ALLEGE IN THEIR AMENDED COMPLAINT THAT
THE 1959 PENNSYLVANIA SUNDAY RETAIL SALES ACT IS IRRATIONAL AND
ARBITRARY.  THE THREE-JUDGE COURT DISMISSED THE AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM.  SPEAKING FOR MYSELF ALONE AND NOT FOR MR.
JUSTICE HARLAN ON THIS POINT, I THINK THAT THIS WAS TOO SUMMARY A
DISPOSITION.  HOWEVER DIFFICULT IT MAY BE FOR APPELLANTS TO PROVE WHAT
THEY ALLEGE, THEY MUST BE GIVEN AN OPPORTUNITY TO DO SO IF THEY CHOOSE
TO AVAIL THEMSELVES OF IT, IN VIEW OF THE COURT'S DECISIONS IN THIS
SERIES OF CASES.  I WOULD REMAND NO. 67 TO THE DISTRICT COURT. 

FN1  "CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF  ...  ."  MADISON
HAD PROPOSED AN AMENDMENT THAT "THE CIVIL RIGHTS OF NONE SHALL BE
ABRIDGED ON ACCOUNT OF RELIGIOUS BELIEF OR WORSHIP, NOR SHALL ANY
NATIONAL RELIGION BE ESTABLISHED, NOR SHALL THE FULL AND EQUAL RIGHTS
OF CONSCIENCE BE IN ANY MANNER, OR ON ANY PRETEXT, INFRINGED."  I
ANNALS OF CONG. 434.  COMMENTING ON A SUBSEQUENT FORM OF WHAT WAS TO
BECOME THE FIRST AMENDMENT, HE SAID THAT "HE APPREHENDED THE MEANING OF
THE WORDS TO BE, THAT CONGRESS SHOULD NOT ESTABLISH A RELIGION, AND
ENFORCE THE LEGAL OBSERVATION OF IT BY LAW, NOR COMPEL MEN TO WORSHIP
GOD IN ANY MANNER CONTRARY TO THEIR CONSCIENCE."  ID., AT 730. 

FN2  SEE COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA (1902),
PASSIM; SWEET, THE STORY OF RELIGION IN AMERICA (REV. ED. 1939), 54, 76
77, 98-112, 129, 139-142; SWEET, RELIGION IN COLONIAL AMERICA (1942),
PASSIM; I CHANNING, HISTORY OF THE UNITED STATES (1933), 356-381, 470
474.  AND SEE JEFFERSON'S NOTES ON VIRGINIA, IN II WRITINGS OF THOMAS
JEFFERSON (MEMORIAL ED.  1903) 217-219.  THE VIRGINIA CONVENTION WHICH
RATIFIED THE FEDERAL CONSTITUTION PROPOSED AS A NEEDED AMENDMENT TO IT:
"THAT RELIGION, OR THE DUTY WHICH WE OWE TO OUR CREATOR, AND THE MANNER
OF DISCHARGING IT, CAN BE DIRECTED ONLY BY REASON AND CONVICTION, NOT
BY FORCE OR VIOLENCE; AND THEREFORE ALL MEN HAVE AN EQUAL, NATURAL, AND
UNALIENABLE RIGHT TO THE FREE EXERCISE OF RELIGION, ACCORDING TO THE
DICTATES OF CONSCIENCE, AND THAT NO PARTICULAR RELIGIOUS SECT OR
SOCIETY OUGHT TO BE FAVORED OR ESTABLISHED, BY LAW, IN PREFERENCE TO
OTHERS."  III ELLIOT'S DEBATES (2D ED. 1836) 659.  SEE ALSO THE
AMENDMENT PROPOSED BY THE NORTH CAROLINA CONVENTION WHICH DECLINED TO
RATIFY, IV ID., AT 244, AND THE UNDERSTANDING OF THE CONSTITUTION
EXPRESSED BY RHODE ISLAND, I ID., AT 334, AND NEW YORK, I ID., AT 328. 
CF. THE AMENDMENT PROPOSED BY NEW HAMPSHIRE, I ID., AT 326. 

FN3  SEE JAMES, THE STRUGGLE FOR RELIGIOUS LIBERTY IN VIRGINIA
(1900); ECKENRODE, SEPARATION OF CHURCH AND STATE IN VIRGINIA (1910); I
RANDALL, LIFE OF THOMAS JEFFERSON (1858), 219-223; COBB, THE RISE OF
RELIGIOUS LIBERTY IN AMERICA (1902), 490-499; SWEET, THE STORY OF
RELIGION IN AMERICA (REV. ED. 1939), 276-279. 

FN4  THE HISTORY OF THE VIRGINIA EPISODE IS TREATED EXTENSIVELY IN
THE OPINIONS IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1. 

FN5  12 HENING, STATUTES OF VIRGINIA (1823), 84, 85. 

FN6  AS APPELLANT RETAILERS AND RETAIL EMPLOYEES IN THE MCGOWAN AND
MCGINLEY CASES HAVE URGED NEITHER HERE NOR BELOW ANY QUESTION OF
INFRINGEMENT OF THEIR OWN RIGHTS OF CONSCIENCE, I AGREE WITH THE CHIEF
JUSTICE THAT THEY HAVE NO STANDING TO RAISE THE "FREE EXERCISE" ISSUE. 
UNITED STATES V. RAINES, 362 U.S. 17.  THE COURT NEED NOT DETERMINE AT
THIS TIME WHAT AVERMENTS OR WHAT PROOFS, IN A PROPER CASE, WOULD BE
REQUIRED IN ORDER TO RAISE SUCH ISSUES IN THEIR BEHALF.  UNLIKE
APPELLANTS IN BRAUNFELD AND APPELLEES IN GALLAGHER, THEY HAVE NOT URGED
THAT THEIR REMAINING SHUT ON ANY DAY OF THE WEEK FOR ANY REASON CAUSES
SUNDAY CLOSING TO DISADVANTAGE THEM PECULIARLY.  THEY ASSERT A RIGHT TO
OPERATE SEVEN DAYS A WEEK - A RIGHT IN WHICH THEY CLAIM AN ECONOMIC,
NOT A CONSCIENTIOUS INTEREST.  NOR, ON THIS RECORD, IS IT NECESSARY TO
DECIDE WHETHER THESE SUNDAY RETAIL SELLERS MIGHT HAVE STANDING TO
COMPLAIN OF THE DISADVANTAGE OF THEIR ENFORCED SUNDAY CLOSING TO
CONSCIENTIOUS SABBATARIAN CUSTOMERS OR POTENTIAL CUSTOMERS.  CF.
BARROWS V. JACKSON, 346 U.S. 249; PIERCE V. SOCIETY OF SISTERS, 268
U.S. 510.  NOWHERE BELOW HAVE THEY PRESENTED EVIDENCE THAT ANY SUCH
ACTUAL OR HYPOTHETICAL CUSTOMER IS THUS DISADVANTAGED. 

FN7  SEE EXODUS 20:8-11, 23:12, 31:12-17; DEUTERONOMY 5:12-15. 

FN8  CODEX JUSTIN., LIBER III, TIT. XII, 3.  SEE II SCHAFF, HISTORY
OF THE CHRISTIAN CHURCH (1867), 380, N. 1.  LATER EDICTS OF THE
EMPERORS WERE MORE UNEQUIVOCALLY CHRISTIAN IN TEMPER, E.G., THAT OF 386
A.D., CODEX THEO., LIBER VIII, TIT. VIII, 3.  SEE PHARR, THE THEODOSIAN
CODE (1952), 209. 

FN9  SEE LEWIS, A CRITICAL HISTORY OF SUNDAY LEGISLATION (1888), 1
90; NEALE, FEASTS AND FASTS (1845), 86-137; JOHNSON AND YOST,
SEPARATION OF CHURCH AND STATE (1948), 219-221; XII ENCYCLOPEDIA OF
RELIGION AND ETHICS (HASTINGS ED. 1921), 103-106; SAVAGE, SUNDAY IN
CHURCH HISTORY, IN HOW SHALL WE KEEP SUNDAY (1898), 27.    FN10  27
HENRY VI, C. 5. 

FN11  5 & 6 EDW.  VI, C. 3.  "FORASMUCH AS AT ALL TIMES MEN BE NOT SO
MINDFUL TO LAUD AND PRAISE GOD, SO READY TO RESORT AND HEAR GOD'S HOLY
WORD, AND TO COME TO THE HOLY COMMUNION AND OTHER LAUDABLE RITES, WHICH
ARE TO BE OBSERVED IN EVERY CHRISTIAN CONGREGATION, AS THEIR BOUNDEN
DUTY DOTH REQUIRE:  ...  THEREFORE TO CALL MEN TO REMEMBRANCE OF THEIR
DUTY, AND TO HELP THEIR INFIRMITY, IT HATH BEEN WHOLSOMLY PROVIDED,
THAT THERE SHOULD BE SOME CERTAIN TIMES AND DAYS APPOINTED, WHEREIN THE
CHRISTIAN SHOULD CEASE FROM ALL OTHER KIND OF LABOURS, AND SHOULD APPLY
THEMSELVES ONLY AND WHOLLY UNTO THE AFORSAID HOLY WORKS, PROPERLY
PERTAINING UNTO TRUE RELIGION ...  ."  VIOLATIONS WERE TO BE PUNISHED
BY THE CENSURES OF THE CHURCH, ADMINISTERED BY THE BISHOPS, ARCHBISHOPS
AND OTHER PERSONS HAVING ECCLESIASTICAL JURISDICTION.  THE PURPOSE OF
THIS ORDINANCE WAS APPARENTLY TO RESTRICT TO A FIXED AND RELATIVELY
LIMITED NUMBER THE DAYS UPON WHICH LABOR SHOULD CEASE, THE
MULTIPLICATION OF SAINTS' DAYS HAVING RISEN UNTIL THEY CAME TO CONSUME
AN ALARMING PROPORTION OF THE YEAR.  IT WAS REPEALED UNDER QUEEN MARY. 

FN12  1 CHARLES I, C. 1.  THIS REGULATION, WHILE PRESCRIBING CIVIL
PENALTIES, PRESERVED THE CONCURRENT JURISDICTION OF THE ECCLESIASTICAL
COURTS TO PUNISH SABBATH BREAKING. 

FN13  3 CHARLES I, C. 2. 

FN14  FOR A SURVEY OF THE EXTENSIVE SUNDAY REGULATIONS PROMULGATED
UNDER THE COMMONWEALTH, SEE LEWIS, OP. CIT., SUPRA, NOTE 9, AT 115
142. 

FN15  WORK WAS PUNISHED BY PENALTY OF FIVE SHILLINGS, SELLING BY
FORFEITURE OF THE GOODS.  THE BAN AGAINST BUTCHERS AND HERDERS
TRAVELING ON SUNDAY WAS REPEATED, UNDER FINE OF TWENTY SHILLINGS. 
DRESSING OF MEAT IN FAMILIES AND DRESSING OR SELLING OF MEAT IN INNS
AND VICTUALLING HOUSES "FOR SUCH AS OTHERWISE CANNOT BE PROVIDED" WAS
PERMITTED, AS WAS THE CRYING OR SELLING OF MILK BEFORE 9 A.M. AND AFTER
4 P.M.  LATER STATUTES MADE NUMEROUS OTHER EXCEPTIONS TO THE ENGLISH
SUNDAY BAN: SEE, E.G., 9 ANNE, C. 23, SEC. 20, EXEMPTING HACKNEY
COACHES; THE SUNDAY ENTERTAINMENTS ACT, 1932, 22 & 23 GEO. V, C. 51,
EXEMPTING MOTION PICTURES AT THE OPTION OF LOCAL AUTHORITY AND UNDER
STIPULATED CONDITIONS, AND ALSO MAKING LAWFUL CERTAIN MUSICAL
ENTERTAINMENTS, LECTURES AND DEBATES, AND THE OPERATION OF MUSEUMS,
GALLERIES, ZOOLOGICAL AND BOTANICAL GARDENS, ETC.; AND THE EVOLVING
REGULATION OF SUNDAY BAKING, 34 GEO.  III, C. 61; 1 & 2 GEO. IV, C. 50,
SEC. 11; 3 GEO. IV, L.&P., C. 106, SEC. 16; 6 & 7 WM. IV, C. 37, SEC.
14; BAKING INDUSTRY (HOURS OF WORK) ACT, 1954, 2 & 3 ELIZ.  II, C. 57,
SEC. 12.  THE SUNDAY OBSERVATION PROSECUTION ACT, 1871, 34 & 35 VICT.,
C. 87, PROVIDED THAT NO PROSECUTIONS UNDER THE STATUTE, 29 CHARLES II,
C. 7, MIGHT BE BROUGHT WITHOUT THE CONSENT OF A CHIEF POLICE OFFICER, A
STIPENDIARY MAGISTRATE, OR TWO JUSTICES OF THE PEACE. 

FN16  COMMON INFORMER PRACTICE UNDER THIS STATUTE HAS SINCE BEEN
ABOLISHED.  COMMON INFORMERS ACT, 1951, 14 & 15 GEO. VI, C. 39. 

FN17  SEE FENNELL V. RIDLER, 5 B.&C. 406, 407-408 (1826):  "THE
SPIRIT OF THE ACT OF 29 CHARLES II IS TO ADVANCE THE INTERESTS OF
RELIGION, TO TURN A MAN'S THOUGHTS FROM HIS WORLDLY CONCERNS, AND TO
DIRECT THEM TO THE DUTIES OF PIETY AND RELIGION; AND THE ACT CANNOT BE
CONSTRUED ACCORDING TO ITS SPIRIT UNLESS IT IS SO CONSTRUED AS TO CHECK
THE CAREER OF WORLDLY TRAFFIC  ...  .  LABOUR MAY BE PRIVATE AND NOT
MEET THE PUBLIC EYE, AND SO NOT OFFEND AGAINST PUBLIC DECENCY, BUT IT
IS EQUALLY LABOUR, AND EQUALLY INTERFERES WITH A MAN'S RELIGIOUS
DUTIES." 

FN18  THE BOOK OF SPORTS PUBLISHED BY JAMES I IN 1618 AND REPUBLISHED
BY CHARLES I IN 1633 PROVIDED:  "AS FOR OUR GOOD PEOPLE'S LAWFUL
RECREATION, OUR PLEASURE  ...  IS, THAT AFTER THE END OF DIVINE SERVICE
OUR GOOD PEOPLE BE NOT DISTURBED  ...  FROM ANY LAWFUL RECREATION, SUCH
AS DANCING, ...  LEAPING, VAULTING, OR ANY OTHER SUCH HARMLESS
RECREATION  ...  . 

"AND LIKEWISE WE BAR FROM THE BENEFIT AND LIBERTY ALL SUCH KNOWN
RECUSANTS, EITHER MEN OR WOMEN, AS WILL ABSTAIN FROM COMING TO CHURCH
OR DIVINE SERVICE, BEING THEREFORE UNWORTHY OF ANY LAWFUL RECREATION
AFTER SAID SERVICE, THAT WILL NOT FIRST COME TO CHURCH AND SERVE GOD. 
PROHIBITING IN LIKE SORT THE SAID RECREATIONS TO ANY THAT, THOUGH
CONFORM IN RELIGION, ARE NOT PRESENT IN THE CHURCH AT THE SERVICE OF
GOD, BEFORE THEIR GOING TO THE SAID RECREATIONS. 

"OUR PLEASURE, LIKEWISE IS, THAT THEY TO WHOM IT BELONGETH IN OFFICE,
SHALL PRESENT AND PUNISH SHARPLY ALL SUCH, AS IN ABUSE OF THIS OUR
LIBERTY WILL USE THEIR EXERCISES BEFORE THE END OF ALL DIVINE SERVICES
FOR THAT DAY."  LEWIS, OP. CIT., SUPRA, NOTE 9, AT 106-107.  SEE
GOVETT, THE KING'S BOOK OF SPORTS (1890).  SEE ALSO THE EXCEPTING
PROVISO TO THE STATUTE, 10 & 11 WM.  III, C. 24, SEC. 14, RESPECTING
BILLINGSGATE MARKET.  CERTAIN IMPORTATION AND SELLING OF FISH "BEFORE
OR AFTER DIVINE SERVICE ON SUNDAYS" IS NOT TO BE DEEMED PROHIBITED. 

FN19  SUCH A SPIRIT MAY BE SEEN IN VARIOUS ROYAL PROCLAMATIONS
ENJOINING STRICT ENFORCEMENT OF THE SUNDAY LAWS, SEE WHITAKER, THE
EIGHTEENTH-CENTURY ENGLISH SUNDAY (1940), 56, 172-173, AND IN THE
LANGUAGE OF CHARGES TO THE GRAND JURIES ENCOURAGING THEIR PERFORMANCE
OF THEIR DUTIES UNDER THE LAWS, SEE ID., AT 53, 57-58.  PRIVATE
SOCIETIES FORMED AS SELF-APPOINTED AGENTS OF ADMINISTRATION OF THE
SUNDAY LAWS WERE RELIGIOUS IN ORIENTATION.  SEE, ID., AT 62, 69, 121
123, 195-197. 

FN20 THE INJUNCTION TO OBSERVE THE SABBATH DAY IN DEUTERONOMY 5:14 IS
THAT ON THAT DAY "  ... THOU SHALT NOT DO ANY WORK, THOU, NOR THY SON,
NOR THY DAUGHTER, NOR THY MANSERVANT, NOR THY MAIDSERVANT, NOR THINE
OX, NOR THINE ASS, NOR ANY OF THY CATTLE, NOR THY STRANGER THAT IS
WITHIN THY GATES; THAT THY MANSERVANT AND THY MAIDSERVANT MAY REST AS
WELL AS THOU."  AMONG CHRISTIAN EXPLICATORS OF THE OLD TESTAMENT A
SOCIAL INSPIRATION WAS EARLY ASCRIBED TO THIS LANGUAGE.  SEE MILTON, A
TREATISE ON CHRISTIAN DOCTRINE, BOOK 2, C. 7, IN V PROSE WORKS OF JOHN
MILTON (SUMNER TRANS.  1877) 67.  LUTHER, IN THE LARGE CATECHISM, PART
I, THIRD COMMANDMENT, WROTE:  "  ...  WE KEEP HOLYDAYS NOT FOR THE SAKE
OF INTELLIGENT AND LEARNED CHRISTIANS; FOR THEY HAVE NO NEED OF IT.  WE
KEEP THEM, FIRST, FOR THE SAKE OF BODILY NECESSITY.  NATURE TEACHES AND
DEMANDS THAT THE MASS OF THE PEOPLE - SERVANTS AND MECHANICS, WHO THE
WHOLE WEEK ATTEND TO THEIR WORK AND TRADES - RETIRE FOR A DAY OF REST
AND RECREATION."  I LENKER, LUTHER'S CATECHETICAL WRITINGS (1907), 60. 
SEE ALSO LUTHER'S TREATISE ON GOOD WORKS (1520), THIRD COMMANDMENT,
XVII, IN I WORKS OF MARTIN LUTHER (1915), 241.  COMPARE CALVIN'S
INSTITUTES:  AMONG THE THREE REASONS FOR SABBATH OBSERVANCE, THE LORD
"RESOLVED TO GIVE A DAY OF REST TO SERVANTS AND THOSE WHO ARE UNDER THE
AUTHORITY OF OTHERS, IN ORDER THAT THEY SHOULD HAVE SOME RESPITE FROM
TOIL."  CALVIN, INSTITUTES OF THE CHRISTIAN RELIGION (BATTLES TRANS. 
1960), BOOK II, C. 8, SEC. 28, AT P. 395.  AND SEE EARLY WRITINGS OF
JOHN HOOPER, D.D. (CARR ED. 1843) 337:  "THEN LIKEWISE GOD BY THIS
COMMANDMENT PROVIDETH FOR THE TEMPORAL AND CIVIL LIFE OF MAN, AND
LIKEWISE FOR ALL THINGS THAT BE NECESSARY AND EXPEDIENT FOR MAN IN THIS
LIFE.   IF MAN, AND BEAST THAT IS MAN'S SERVANT, SHOULD WITHOUT REPOSE
AND REST ALWAYS LABOUR, THEY MIGHT NEVER ENDURE THE TRAVAIL OF THE
EARTH.  GOD THEREFORE, AS HE THAT INTENDETH THE CONSERVATION AND WEALTH
OF MAN AND THE THING CREATED TO MAN'S USE, COMMANDETH THIS REST AND
REPOSE FROM LABOUR, THAT HIS CREATURES MAY ENDURE AND SERVE AS WELL
THEIR OWN NECESSARY AFFAIRS AND BUSINESS, AS PRESERVE THE YOUTH AND
OFFSPRING OF MAN AND BEAST  ...  ." 

FN21  IN 1778 THERE APPEARED AN ESSAY BY VICESIMUS KNOX, M.A.,
SUPPORTING STATE-ENFORCED SUNDAY OBSERVANCE ON GROUNDS OF HEALTH AND
CUSTOM AS WELL AS OF RELIGION.  SEE WHITAKER, THE EIGHTEENTH-CENTURY
ENGLISH SUNDAY (1940), 148.  IT IS REPORTED THAT IN 1728 THE MEMBERS OF
THE GLOUCESTER COMPANY OR FRATERNITY OF BARBERS HAD UNDERTAKEN TO
ENFORCE BY FINE A SELF-IMPOSED PROHIBITION OF SUNDAY LABOR, APPARENTLY
TO ASSURE THAT THOSE WHO WANTED A SIX-DAY WORK WEEK WOULD NOT BE
COMPELLED BY COMPETITION TO LABOR ON THE WHOLE SEVEN.  SEE ID., AT 59
60. 

FN22  IV BLACKSTONE COMMENTARIES (LEWIS ED. 1897) *63.  COMPARE THE
REPORT OF THE COMMITTEE ON THE JUDICIARY ON THE PETITION PRAYING "THE
REPEAL OF ALL LAWS  ...  ENFORCING THE OBSERVATION OF A DAY OF THE WEEK
AS THE SABBATH  ...  ," MASS. LEG.  DOCS., H. DOC. NO. 125 (1851), 9
10. 

FN23  REPORT FROM SELECT COMMITTEE ON THE OBSERVANCE OF THE SABBATH
DAY, IN 7 H.C., SESSIONAL PAPERS (1831-1832), AT PP. 116-117. 

FN24  ID., AT P. 6.  SEE ID., AT PP. 5-8. 

FN25  ID., AT PP. 9-10. 

FN26  SEE TREVELYAN'S COMMENT QUOTED IN THE FOREWORD TO SKOTTOWE, THE
LAW RELATING TO SUNDAY (1936); WHITAKER, SUNDAY IN TUDOR AND STUART
TIMES (1933); WHITAKER, THE EIGHTEENTH-CENTURY ENGLISH SUNDAY (1940),
ESPECIALLY AT 192, 199-201. 

FN27  ADDISON, WRITING IN NO. 112 OF THE SPECTATOR, JULY 9, 1711:  "I
AM ALWAYS VERY WELL PLEASED WITH A COUNTRY SUNDAY, AND THINK, IF
KEEPING HOLY THE SEVENTH DAY WERE ONLY A HUMAN INSTITUTION, IT WOULD BE
THE BEST METHOD THAT COULD HAVE BEEN THOUGHT OF FOR POLISHING AND
CIVILIZING OF MANKIND.  IT IS CERTAIN, THE COUNTRY PEOPLE WOULD SOON
DEGENERATE INTO A KIND OF SAVAGES AND BARBARIANS, WERE THERE NOT SUCH
FREQUENT RETURNS OF A STATED TIME, IN WHICH THE WHOLE VILLAGE MEET
TOGETHER WITH THEIR BEST FACES, AND IN THEIR CLEANEST HABITS, TO
CONVERSE WITH ONE ANOTHER UPON DIFFERENT SUBJECTS, HEAR THEIR DUTIES
EXPLAINED TO THEM, AND JOIN TOGETHER IN ADORATION OF THE SUPREME
BEING.  SUNDAY CLEARS AWAY THE RUST OF THE WHOLE WEEK, NOT ONLY AS IT
REFRESHES IN THEIR MINDS THE NOTIONS OF RELIGION, BUT AS IT PUTS BOTH
THE SEXES UPON APPEARING IN THEIR MOST AGREEABLE FORMS, AND EXERTING
ALL SUCH QUALITIES AS ARE APT TO GIVE THEM A FIGURE IN THE EYE OF THE
VILLAGE."  THE SPECTATOR (AM. ED. 1859), AT 160.  SEE THE ATTEMPT TO
CAPTURE THE PECULIAR ATMOSPHERE OF SUNDAY IN THE OPENING LINES TO THE
SECOND BOOK OF CRABBE'S THE VILLAGE (1783). 

FN28  IN 1895 THE LATE PRESIDENT OF A GROCERS' ASSOCIATION TESTIFYING
ON A PROPOSED BILL REGULATING THE CLOSING HOURS OF SHOPS URGED THAT THE
COMMONS COMMITTEE RECOMMEND SUNDAY CLOSING TO THE HOUSE; THE MANY
ENGLISH GROCERS WHO WANTED THEIR SUNDAY OFF WERE ALARMED AT THE THREAT
OF INCREASED TRADE BY COMPETITORS WHICH WOULD FORCE THEIR OWN OPENING
ON SUNDAY.  REPORT FROM THE SELECT COMMITTEE ON SHOPS (EARLY CLOSING)
BILL (COMMONS 1895) 158-159.  THE REPORT FROM THE SELECT COMMITTEE OF
THE HOUSE OF LORDS ON THE SUNDAY CLOSING (SHOPS) BILL (H.L.)(1905) DID
RECOMMEND SUNDAY CLOSING LEGISLATION, WHICH IT FOUND SUPPORTED BY ALL
BUT ONE OF THE MORE THAN THREE HUNDRED SHOPKEEPERS ASSOCIATIONS WHOSE
VIEWS WERE ASCERTAINED.  THE COMMITTEE'S REPORT, AT VI-VII, QUOTES THE
TESTIMONY OF A WITNESS (A CLERGYMAN, IT MAY BE NOTED), THAT "  ...  THE
GREAT NEED THAT IMPRESSES ALL OF US BUSY WORKERS IN MY PART OF LONDON
IS THE FACT THAT BECAUSE OF THE NOISE AND RUSH WE DO WANT TO SAFEGUARD
THE LIVES OF OUR PEOPLE BY THEIR HAVING ONE DAY IN SEVEN.  IT IS
NECESSARY FOR BRAIN AND FOR BODY, QUITE APART FROM THE RELIGIOUS ASPECT
OF THE QUESTION, FOR THE MOMENT, AND BY THE STRESS AT WHICH WE ARE ALL
LIVING DOWN THERE SUNDAY HAS BECOME PRACTICALLY LIKE ANY OTHER DAY  ...
.  THE BRITISH POPULATION SAY THAT THEY WOULD LOSE THEIR CUSTOM IN A
GREAT MEASURE IF THEY, IN SELF-DEFENCE, DID NOT OPEN ON SUNDAY.  THE
FEELING IS VERY DOMINANT THAT THE RESULT IS THAT MANY OF THEM HAVE TO
WORK, WHETHER THEY LIKE IT OR NOT, SEVEN DAYS A WEEK."  (SEE ALSO
TESTIMONY TO THE SAME EFFECT, ID., AT 3-4, 17, 20, 30, 36, 40.) 

FN29  1 EDW.  VII, C. 22, SEC. 34.  CONTINUED, AS AMENDED, IN THE
FACTORIES ACT, 1937, 1 EDW.  VIII & 1 GEO. VI, C. 67, SEC. 77. 

FN30  2 GEO. V, C. 3, SECS. 1, 4, PROVIDES FOR A HALF-DAY CLOSING AND
A HALF-DAY OFF FOR EMPLOYEES "ON AT LEAST ONE WEEK DAY IN EACH WEEK." 
(SEC.  1.)  OTHER TWENTIETH CENTURY LEGISLATION INDICATES RECOGNITION
OF THE INTERWEAVING EFFECTS OF THE SUNDAY LAWS AND OTHER HOURS-OF-LABOR
LEGISLATION.  THE STATUTE OF 2 & 3 ELIZ.  II, C. 57, SEC. 12, REPEALED
THE SUNDAY LAWS AFFECTING THE BAKING INDUSTRY AS PART OF A NEW PROGRAM
OF HOURS REGULATION FOR THAT INDUSTRY.  THE SUNDAY ENTERTAINMENTS ACT,
1932, 22 & 23 GEO.  V, C. 51, PERMITTING SUNDAY CINEMA AT LOCAL OPTION,
SUBJECTS THE ALLOWANCE OF SUNDAY OPERATION TO THE CONDITION THAT NO
PERSON MAY BE EMPLOYED THEREIN WHO HAS WORKED ON EACH OF THE SIX DAYS
NEXT PRECEDING, EXCEPT IN EMERGENCIES, IN WHICH CASE THE EMPLOYEE MUST
GET HIS DAY'S REST SUBSEQUENTLY. 

FN31  MINISTRY OF MUNITIONS, HEALTH OF MUNITION WORKERS COMMITTEE,
REPORT ON SUNDAY LABOUR, MEMORANDUM NO. 1 (CMD.  8132)(1915), 3, 5. 
THE COMMITTEE HAD NOT BEEN DIRECTED SPECIFICALLY TO INVESTIGATE THE
SUNDAY LABOR QUESTION, BUT IN ITS INQUIRIES GENERALLY INTO HOURS OF
LABOR, IT DISCOVERED THAT "EMPLOYERS AND WORKERS WERE SPECIALLY
CONCERNED AT THE PRESENT TIME WITH THE PROBLEM OF SUNDAY LABOUR," AND
THE COMMITTEE WAS "SO IMPRESSED WITH THE URGENCY AND IMPORTANCE OF THIS
QUESTION," THAT IT DETERMINED TO SUBMIT A PRELIMINARY REPORT ON THIS
SUBJECT ALONE.  ID., AT 3. 

FN32  26 GEO. V & 1 EDW.  VIII, C. 53.  SEE ALSO THE RETAIL MEAT
DEALERS' SHOPS (SUNDAY CLOSING) ACT, 1936, 26 GEO. V & 1 EDW.  VIII, C.
30.  THESE ACTS ARE CONTINUED IN THE SHOPS ACT, 1950, 14 GEO. VI, C.
28, PART IV.

FN33  SEE 308 H.C. DEB.  2216 AND 2223 (5TH SER.  1935
1936)(SUGGESTING THAT PERSONS OUGHT NOT BE MADE TO WORK ON A DAY WHEN
THEY WOULD WANT TO ATTEND RELIGIOUS SERVICES); ID., AT 2211.  THE
STRONGEST CHRISTIAN RELIGIOUS SENTIMENT WAS DEMONSTRATED BY AN OPPONENT
OF THE BILL, SEE 311, ID., AT 497.  OTHER OPPOSING SPEAKERS WAVED THE
SHIBBOLETH OF RELIGIOUS MOTIVE IN AN ATTEMPT TO DISCREDIT THE MEASURE. 
SEE 308, ID., AT 2190-2191; 311, ID., AT 2097; BUT SEE 308, ID., AT
2179-2182; 101 H.L. DEB.  262 (5TH SER.  1935-1936)(TWO OPPONENTS ADMIT
ABSENCE OF RELIGIOUS PURPOSE OR EFFECT).    FN34  THIS IS ESPECIALLY
SIGNIFICANT IN ENGLAND WHERE, OF COURSE, NO CONSTITUTIONAL COMPULSION
EXISTS TO ENCOURAGE PARLIAMENT TO "MAKE A RECORD" CONCEALING A
CLANDESTINE SECTARIAN AIM. 

FN35  308 H.C. DEB.  2157-2159 (5TH SER.  1935-1936).  SEE ALSO ID.,
AT 2165-2167, 2174, 2183, 2186, 2207, 2211, 2213, 2223-2224; 101 H.L.
DEB.  254-255, 266 (5TH SER.  1935-1936). 

FN36  308 H.C. DEB.  2209 (5TH SER.  1935-1936).  SEE ALSO 311, ID.,
AT 453-454, 490.  THROUGHOUT THE DEBATES IT IS EMPHASIZED THAT THE BILL
WAS "A SUNDAY TRADING RESTRICTION BILL AND NOT  ...  A BILL TO HAVE ONE
DAY'S REST IN SEVEN."  311, ID., AT 456; SEE ID., AT 2106.  YET IT WAS
NOT THE SACRED QUALITY OF THE DAY THAT WAS MEANT. 

FN37  308, ID., AT 2197-2198. 

FN38  SEE 308, ID., AT 2186, 2194-2195, 2206; 311, ID., AT 2095. 

FN39  ALTHOUGH A PRIVATE MEMBER'S BILL, THE MEASURE PASSED ON THE
SECOND READING IN COMMONS BY A 191-TO-8 VOTE.  308, ID., AT 2230. 

FN40  EVEN ON THE CONTINENT THE FORCES WHICH IN THE LATTER HALF OF
THE NINETEENTH CENTURY PRESSED FOR THE AMELIORATION OF THE WORKING
CONDITIONS OF THE LABORER EXPRESSED THEMSELVES IN PART IN SUNDAY
LEGISLATION.  GERMANY, AUSTRIA, THE SWISS FEDERAL GOVERNMENT, DENMARK,
NORWAY AND RUSSIA IN THE 1870'S, 80'S AND 90'S PROMULGATED REGULATIONS
PROHIBITING SUNDAY EMPLOYMENT - IN SOME CASES ONLY FOR WOMEN AND
CHILDREN; IN OTHERS, FOR ALL WORKERS IN ENUMERATED INDUSTRIES - OR
CLOSING FACTORIES OR COMMERCIAL ESTABLISHMENTS DURING PART OR ALL OF
THE DAY.  SEE CONGRES INTERNATIONAL DU REPOS HEBDOMADAIRE, PARIS, 1889,
COMPTE-RENDU (1890), 339-344; CONGRES INTERNATIONAL DU REPOS DU
DIMANCHE, BRUXELLES, 1897, RAPPORTS ET COMPTE RENDU (1898), 9-24, 139
159, 229-234; CONGRES INTERNATIONAL DU REPOS DU DIMANCHE, PARIS, 1900,
RAPPORTS ET COMPTE RENDU (1900), RAPPORTS NO. I, II, VII; MACKENZIE,
ED., THE WORLD'S REST-DAY, AN ACCOUNT OF THE THIRTEENTH INTERNATIONAL
CONGRESS ON THE LORD'S DAY, EDINBURGH, 1908 (1909), 168-187; REPORT OF
THE JOINT SPECIAL COMMITTEE TO REVISE, CONSOLIDATE AND ARRANGE THE
GENERAL LAWS  ...  RELATING TO THE OBSERVANCE OF THE LORD'S DAY, MASS.
LEG.  DOCS., H. DOC. NO. 1160 (1907), APPENDIX, AT 57-66.  IN THE LATE
1880'S A GERMAN PLEBISCITE CONDUCTED BY BISMARCK SHOWED STRONG POPULAR
SUPPORT AMONG BOTH EMPLOYERS AND EMPLOYEES FOR SUNDAY CLOSING.  SEE
CONGRES INTERNATIONAL DU REPOS HEBDOMADAIRE, PARIS, 1889, COMPTE-RENDU
(1890), 360-364.  THE DEVELOPMENT OF THE EUROPEAN SUNDAY-CLOSING
MOVEMENT IS REFLECTED IN THE PROCEEDINGS OF THE VARIOUS CONVENTIONS OF
AN INSTITUTION WHICH CONVENED SOMETIMES AS THE INTERNATIONAL CONGRESS
ON SUNDAY REST, SOMETIMES AS THE INTERNATIONAL CONGRESS FOR WEEKLY
REST.  SEE THE REPORTS CITED, SUPRA; SEE ALSO, E.G., JACKSON, ED.,
SUNDAY REST IN THE TWENTIETH CENTURY, AN ACCOUNT OF THE INTERNATIONAL
SUNDAY REST CONGRESS AT ST. LOUIS, 1904 (1905); CONGRESSO
INTERNAZIONALE PRO RIPOSO SETTIMANALE, RESOCONTO, MILANO, 1906
(UNDATED); SUNDAY, THE WORLD'S REST DAY, FOURTEENTH INTERNATIONAL
LORD'S DAY CONGRESS, OAKLAND, CALIFORNIA, 1915 (1916).  AT THE FIRST
MEETING OF THIS GROUP, IN GENEVA IN 1876, THE DELEGATES DISPLAYED A
PRIMARILY RELIGIOUS OUTLOOK, ALTHOUGH MUCH WAS ALSO SAID OF THE
PHYSICAL AND MORAL BETTERMENT OF THE WORKER THROUGH PERIODIC REST. 
CONGRES SUR L'OBSERVATION DU DIMANCHE, GENEVE, 1876, ACTES (1876), 120,
187-191, 353-367.  A MAJOR OBJECTIVE OF THE CONFERENCE WAS TO SECURE
SUNDAY OFF FOR THE RAILROAD EMPLOYEES.  WHEN, AFTER SEVERAL INTERVENING
CONVENTIONS, THE INTERNATIONAL CONGRESS MET IN PARIS IN 1889, IT WAS
UNDER THE PRESIDENCY OF LEON SAY, AND ITS TEMPER WAS RATHER SECULAR
THAN CLERICAL.  IT TOOK THE NAME OF THE CONGRES INTERNATIONAL DU REPOS
HEBDOMADAIRE, AND THOUGH IT CONTAINED MEMBERS BOTH OF CONSERVATIVE
RELIGIOUS AND OF SOCIALIST TENDENCIES, THE LATTER WERE MORE VOCAL AND
ESPECIALLY TOOK THE LEAD IN FORMULATING THE CONGRESS' PROGRAM OF STATE
ENFORCED, RATHER THAN MERELY VOLUNTARY, INDUSTRIAL CLOSING.  SEE
CONGRES INTERNATIONAL DU REPOS HEBDOMADAIRE, PARIS 1889, COMPTE-RENDU
(1890), 83-93, 103-108, 344-380.  YET THE GROUP RESOLVED TO DEMAND NOT
MERELY SOME ONE INDISCRIMINATE DAY OF REST WEEKLY, BUT SUNDAY:  "1. 
SUNDAY REST IS POSSIBLE TO VARYING DEGREES IN EVERY INDUSTRY.  2.  THIS
IS THE DAY OF REST WHICH IS MOST SUITABLE BOTH TO THE EMPLOYER AND TO
THE WORKER, AS WELL FROM THE POINT OF VIEW OF THE INDIVIDUAL AS FROM
THAT OF THE FAMILY, AND BECAUSE IT IS GOOD THAT THE DAY OF REST SHOULD
BE, AS MUCH AS POSSIBLE, THE SAME FOR ALL."  ID., AT 160 (TRANSLATED
FROM THE FRENCH); SEE ALSO ID., AT 126, 167, 197.  (COMPARE THE
CONVENTION CONCERNING WEEKLY REST IN COMMERCE AND OFFICES, 1957,
CONVENTION 106 OF THE GENERAL CONFERENCE OF THE INTERNATIONAL LABOUR
ORGANIZATION, GENEVA, 1957, H.R. DOC. NO. 432, 85TH CONG., 2D SESS. 7
12, PROVIDING FOR A WEEKLY DAY OF REST WHICH SHALL, WHERE POSSIBLE,
"COINCIDE WITH THE DAY OF THE WEEK ESTABLISHED AS A DAY OF REST BY THE
TRADITIONS OR CUSTOMS OF THE COUNTRY OR DISTRICT."  ART. 6, SEC. 3.  SO
FAR AS POSSIBLE, THE TRADITIONS AND CUSTOMS OF RELIGIOUS MINORITIES ARE
TO BE RESPECTED.  ART. 6, SEC. 4.  SIMILARLY, THE INTERNATIONAL LABOUR
CONFERENCE'S DRAFT CONVENTION CONCERNING THE APPLICATION OF THE WEEKLY
REST IN INDUSTRIAL UNDERTAKINGS, ADOPTED AT THE THIRD SESSION OF THE
GENERAL CONFERENCE IN GENEVA IN 1921, ESTABLISHES 24 CONSECUTIVE HOURS
OF REST PER SEVEN DAYS FOR INDUSTRIAL WORKERS, TO BE FIXED, WHEREVER
POSSIBLE "SO AS TO COINCIDE WITH THE DAYS ALREADY ESTABLISHED BY THE
TRADITIONS OR CUSTOMS OF THE COUNTY OR DISTRICT."  ART. 2. 
INTERNATIONAL LABOUR CONFERENCE, 3D SESS., DRAFT CONVENTIONS &
RECOMMENDATIONS (1921), 30.) 

AT CHICAGO, FOUR YEARS LATER, BOTH CLERICAL AND LABORITE PERSPECTIVES
WERE AGAIN REPRESENTED; GEORGE E. MCNEILL, ONE OF THE PIONEERS OF THE
AMERICAN LABOR MOVEMENT, SPOKE, AND THE REPRESENTATIVE OF THE
BROTHERHOOD OF RAILWAY TRAINMEN AND OTHER RAILROAD WORKERS'
ORGANIZATIONS, L.S. COFFIN, SUPPORTED SUNDAY REST.  THE SUNDAY PROBLEM,
ITS PRESENT DAY ASPECTS, PAPERS PRESENTED AT THE INTERNATIONAL CONGRESS
ON SUNDAY REST, CHICAGO, 1893 (1894), 43, 95.  IN 1897, AT BRUSSELS,
THE SPIRIT WAS AGAIN PREDOMINANTLY SECULAR; THE CONGRESS DEBATES
EXTENSIVELY THE QUESTION WHETHER GOVERNMENTAL ACTION TO COMPEL A DAY OF
REST WAS ADVISABLE, OR WHETHER THE MATTER COULD BEST BE HANDLED BY
PERSUASION OF INDIVIDUAL EMPLOYERS; AND THE SENSE OF THE MEETING
STRONGLY FAVORED GOVERNMENTAL INTERVENTION.  CONGRES INTERNATIONAL DU
REPOS DU DIMANCHE, BRUXELLES 1897, RAPPORTS ET COMPTE RENDU (1898), 35
47, 161-171, 377-385, 387-393, 538-559.  SEE ALSO CONGRES INTERNATIONAL
DU REPOS DU DIMANCHE, PARIS, 1900, RAPPORTS ET COMPTE RENDU (1900). 
LATER MEETINGS OF THE CONGRESS TENDED TO BE RELIGION-ORIENTED, ALTHOUGH
SECULAR INTERESTS CONTINUED TO FIND VOICE.  SEE JACKSON, ED., OP. CIT.,
SUPRA, AT 59-77, 85-96; MACKENZIE, ED., OP. CIT., SUPRA, AT 187. 

FN41  SEE APPENDIX I TO THIS OPINION, POST, P. 543.  HEREAFTER THE
COLONIAL SUNDAY STATUTES WILL BE CITED BY DATE AND COLONY. 

FN42  COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA (1902), 482-517;
SWEET, THE STORY OF RELIGION IN AMERICA (REV. ED. 1939), 274-280. 

FN43  SEE JAMES MADISON'S ESSAY, "MONOPOLIES.  PERPETUITIES. 
CORPORATIONS.  ECCLESIASTICAL ENDOWMENTS."  IN FLEET, MADISON'S
"DETATCHED MEMORANDA," 3 WM. & MARY Q. 534, 551, 554-556 (1946).  SEE
AUTHORITIES CITED IN NOTE 3, SUPRA. 

FN44  SEE PROCEEDINGS OF THE FIRST GENERAL ASSEMBLY OF "THE
INCORPORATION OF PROVIDENCE PLANTATIONS," AND THE CODE OF LAWS, 1647
(1847), 50:  "  ...  AND, OTHERWISE THAN THUS WHAT IS HEREIN FORBIDDEN,
ALL MEN MAY WALK AS THEIR CONSCIENCES PERSUADE THEM, EVERY ONE IN THE
NAME OF HIS GOD  ...  ."  SEE COBB, THE RISE OF RELIGIOUS LIBERTY IN
AMERICA (1902), 423-440. 

FN45  SEE NOTE 2, SUPRA. 

FN46  NEW HAMPSHIRE ENACTED SUNDAY LAWS IN 1785 AND 1789, NEW YORK IN
1788, VIRGINIA IN 1786.  RHODE ISLAND IN 1784 EXEMPTED FROM HER SUNDAY
LABOR BAN MEMBERS OF SABBATARIAN SOCIETIES, BUT SPECIFIED THAT THE
EXEMPTION DID NOT EXTEND TO ALLOW SUCH PERSONS TO KEEP SHOPS OPEN OR TO
DO MECHANICAL LABOR IN COMPACT PLACES; IN 1798 RHODE ISLAND AGAIN
ENACTED A COMPREHENSIVE SUNDAY LAW WITH THE SAME EXCEPTIONS. 

FN47  DELAWARE, 1740. 

FN48  MASSACHUSETTS (PLYMOUTH), 1658. 

FN49  GEORGIA, 1762.  SEE ALSO MARYLAND, 1696; NEW YORK, 1685; SOUTH
CAROLINA, 1712.  SEE THE STATUTE OF 1 CHARLES I, QUOTED IN TEXT AT NOTE
12, SUPRA.  THE LAW OF THE MASSACHUSETTS BAY COLONY IN 1653 RECITED
THAT PLAYING, WALKING, DRINKING, SPORTING, AND TRAVELING ON THE LORD'S
DAY TEND "MUCH TO THE DISHONOUR OF GOD, THE REPROACH OF RELIGION,
GRIEVING THE SOULS OF GODS SERVANTS, AND THE PROPHANATION OF HIS HOLY
SABBATH, THE SANCTIFICATION WHEREOF IS SOMETIMES PUT FOR ALL DUTIES,
IMMEDIATELY RESPECTING THE SERVICE OF GOD CONTAINED IN THE FIRST TABLE
...  ." 

FN50  CONNECTICUT, 1668. 

FN51  PENNSYLVANIA, 1682; SEE ALSO THE STATUTES OF 1690, 1700.  THE
"BODY OF LAWS" OF 1682 DECLARED RELIGIOUS TOLERANCE FOR ALL PERSONS
BELIEVING IN A SUPREME BEING:  "BUT TO THE END THAT LOOSENESS,
IRRELIGION, AND ATHEISM MAY NOT CREEP IN UNDER PRETENSE OF CONSCIENCE
IN THIS PROVINCE, BE IT FURTHER ENACTED  ...  THAT, ACCORDING TO THE
EXAMPLE OF THE PRIMITIVE CHRISTIANS, AND FOR THE EASE OF THE CREATION,
EVERY FIRST DAY OF THE WEEK, CALLED THE LORD'S DAY, PEOPLE SHALL
ABSTAIN FROM THEIR USUAL AND COMMON TOIL AND LABOUR, THAT WHETHER
MASTERS, PARENTS, CHILDREN, OR SERVANTS, THEY MAY THE BETTER DISPOSE
THEMSELVES TO READ THE SCRIPTURES OF TRUTH AT HOME, OR FREQUENT SUCH
MEETINGS OF RELIGIOUS WORSHIP ABROAD, AS MAY BEST SUTE THEIR RESPECTIVE
PERSUASIONS." 

FN52  THE NEW HAVEN CODE OF 1656 PROVIDES:  "WHOSOEVER SHALL PROPHANE
THE LORD'S DAY, OR ANY PART OF IT, EITHER BY SINFUL SERVILE WORK, OR BY
UNLAWFUL SPORT, RECREATION OR OTHERWISE, WHETHER WILFULLY, OR IN A
CARELESS NEGLECT, SHAL BE DULY PUNISHED BY FINE, IMPRISONMENT, OR
CORPORALLY, ACCORDING TO THE NATURE AND MEASURE OF THE SINN, AND
OFFENCE.  BUT IF THE COURT UPON EXAMINATION, BY CLEAR AND SATISFYING
EVIDENCE, FIND THAT THE SIN WAS PROUDLY, PRESUMPTUOUSLY, AND WITH A
HIGH HAND COMMITTED AGAINST THE KNOWN COMMAND AND AUTHORITY OF THE
BLESSED GOD, SUCH A PERSON, THEREIN DESPISING AND REPROACHING THE LORD,
SHAL BE PUT TO DEATH, THAT ALL OTHERS MAY FEAR AND SHUN SUCH PROVOAKING
REBELLIOUS COURSES.  NUMB.  15:  FROM 30 TO 36 VERSE."  THE PLYMOUTH
COLONY LAW OF 1671 IS SIMILAR.  AND SEE THE ACT PUBLISHED IN THE BAY
COLONY IN 1647, BY WHICH TO "DENY THE MORALITIE OF THE FOURTH
COMMANDEMENT" IS BRANDED AMONG OTHER HERESIES AND MADE PUNISHABLE BY
BANISHMENT.  LAWS AND LIBERTIES OF MASSACHUSETTS, 1648 (REPRINTED
1929), 24. 

FN53  MASSACHUSETTS, 1692.  SEE ALSO NEW HAMPSHIRE, 1700; NORTH
CAROLINA, 1741.  THESE STATUTES ARE PATTERNED ON 29 CHARLES II, C. 7,
QUOTED IN TEXT AT NOTE 15, SUPRA. 

FN54  MARYLAND, 1649; CF. VIRGINIA, 1705 (ATHEISM). 

FN55  MARYLAND, 1692, "AN ACT FOR THE SERVICE OF ALMIGHTY GOD AND THE
ESTABLISHMENT OF THE PROTESTANT RELIGION WITHIN THIS PROVINCE." 

FN56  SEE THE CONNECTICUT STATUTE SET FORTH IN THE ACTS AND LAWS,
1750; GEORGIA, 1762; MASSACHUSETTS, 1761.  COMPULSORY CHURCH ATTENDANCE
LAWS IN THE NEW ENGLAND COLONIES DATED FROM BEFORE THE MIDDLE OF THE
SEVENTEENTH CENTURY.  SEE THE CODE OF 1650 OF THE GENERAL COURT OF
CONNECTICUT (1822) 46; AND THE BAY COLONY'S ACT PUBLISHED IN 1647, LAWS
AND LIBERTIES OF MASSACHUSETTS, 1648 (REPRINTED 1929), 20. 

FN57  SEE NOTE 51, SUPRA.  THIS LATTER OBJECT, NOT THE COMPULSION OF
CONSCIENCE BUT THE LIBERATION OF ALL INDIVIDUALS FROM SUNDAY LABOR AND
SUNDAY DISTURBANCE SO THAT THEY MIGHT WORSHIP GOD AS THEIR OWN
CONSCIENCES DICTATED, WAS, AT ONE PERIOD, NOT INFREQUENTLY PUT FORWARD
AS THE JUSTIFYING PURPOSE OF THE SUNDAY LAWS.  STATE V. AMBS, 20 MO.
214, 218 (1854); GEORGE V. GEORGE, 47 N.H. 27, 34 (1866); LINDENMULLER
V. PEOPLE, 33 BARB.  548, 564 (N.Y. SUP. CT., 1861); JOHNSTON V.
COMMONWEALTH, 22 PA. 102, 115 (1853).  AS THE HABITS AND PREOCCUPATIONS
OF THE PEOPLE THEMSELVES CHANGED, IT WAS BUT A SHORT STEP FROM THIS
REASONING TO THE RECOGNITION THAT SUNDAY LAWS SERVE THE PURPOSE OF
PROVIDING LEISURE AND PEACE FAVORABLE TO THE PURSUIT OF WHATEVER
ASPIRATIONS, RELIGIOUS OR SECULAR, VARIOUS INDIVIDUALS MAY CHOOSE.  SEE
TEXT AT NOTE 35, SUPRA.  SENSITIVE TO EMERGING NEW POPULAR NEEDS AND
DESIRES, LEGISLATURES WERE LATER TO RESHAPE THE SUNDAY LAWS BY COMPLEX
PATTERNS OF EXCEPTIONS PERMITTING NUMEROUS RECREATIONAL ACTIVITIES
WHICH, FAR FROM ACCORDING WITH THE ORIGINAL PURITANICAL INSPIRATION OF
THE LORD'S DAY ACTS, WERE PRECISELY THOSE GAMES AND SPORTS WHICH
COLONIAL LEGISLATION MOST SEVERELY CONDEMNED.  SEE, E.G., VIRGINIA,
1610; CONNECTICUT, 1668.  THE DEVELOPMENT OF THESE EVOLVING EXCEPTIONS
IS DISCUSSED BRIEFLY IN TEXT AT NOTES 124-131, INFRA; ITS PRODUCT MAY
BE SEEN IN APPENDIX II TO THIS OPINION, POST, P. 551.  WHAT IT IS
SIGNIFICANT TO NOTE AT THIS POINT IS THAT THE CONTINUITY WHICH MARKS
THE HISTORY OF THE SUNDAY LAWS IS A CONTINUITY BOTH OF ENDURING AND
CHANGING SOCIAL DEMANDS.  THE ENDURING FEATURE HAS BEEN MAN'S NEED FOR
A DAY SET APART, A DAY OF COMMUNITY REPOSE:  THIS HE HAS PERSISTENTLY,
CONTINUINGLY DEMANDED.  THE CHANGING FEATURE HAS BEEN THE WAY IN WHICH
HE CHOOSES TO SPEND HIS DAY.  THE NEED WHICH THE "BODY OF LAWS"
RECOGNIZED IN PENNSYLVANIA IN 1682 WAS BOTH THE SAME AND DIFFERENT THAN
THAT EXPRESSED BY LUTHER, SEE NOTE 20, SUPRA, AND THAT WHICH TWENTIETH
CENTURY SUNDAY LEGISLATION ACCOMMODATES.  IT IS THE NEED FOR A
RECURRENT TIME WHEN THE COMMON CONCERNS OF THE WORKING WEEK CEASE TO
MAKE THEIR DEMANDS, AND THERE IS A PEACE THAT IS GENERAL TO THE
COMMUNITY - WHETHER THE INDIVIDUAL FINDS IT AT CHURCH, AT HOME, AT THE
BEACH, IN THE COUNTRY, OR AT THE BASEBALL GAME.    FN58  RECORDS OF THE
COLONY OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, 1678-1706 (1858), 30
31.  THE FIRST RHODE ISLAND SUNDAY LAW WAS AN ENACTMENT OF 1673
PROHIBITING THE DISPENSING OF ALCOHOLIC BEVERAGES ON SUNDAY.  ITS
PREAMBLE IS THIS: 

"VOTED, THIS ASSEMBLY CONSIDERINGE THAT THE KING HATH GRANTED US THAT
NOT ANY IN THIS COLLONY ARE TO BE MOLESTED IN THE LIBERTY OF THEIR
CONSCIENCES, WHO ARE NOT DISTURBERS OF THE CIVILL PEACE, AND WEE ARE
PERSWADED THAT A MOST FLOURISHING CIVIL GOVERNMENT WITH LOYALTY MAY BE
BEST PROPAGATED WHERE LIBERTY OF CONSCIENCE BY ANY CORPORALL POWER IS
NOT OBSTRUCTED THAT IS NOT TO ANY UNCHASTNESS OF BODY, AND NOT BY A
BODY DOEINGE ANY HURT TO A BODY, NEITHER INDEAVORINGE SOE TO DOE; AND
ALTHOUGH WEE KNOW BY MAN NOT ANY CAN BE FORCED TO WORSHIP GOD OR FOR TO
KEEP HOLY OR NOT TO KEEP HOLY ANY DAY; BUT FORASMUCH AS THE FIRST DAYES
OF WEEKS, IT IS USUALL FOR PARENTS AND MASTERS NOT TO IMPLOY THEIR
CHILDREN OR SERVANTS AS UPON OTHER DAYES, AND SOME OTHERS ALSOE THAT
ARE NOT UNDER SUCH GOVERNMENT, ACCOUNTINGE IT AS A SPARE TIME, AND SOE
SPEND IT IN DEBAISTNES OR TIPPLINGE AND UNLAWFULL GAMES AND WANTONNESS,
AND MOST ABHOMINABLY THERE PRACTICED BY THOSE THAT LIVE WITH THE
ENGLISH AT SUCH TIMES TO RESORT TO TOWNES.  THEREFORE, THIS ASSEMBLY,
NOT TO OPPOSE OR PROPAGATE ENGLISH AT SUCH TIMES TO RESORT TO TOWNES. 
THEREFORE, THE ASSEMBLY, NOT TO OPPOSE TO PROPAGATE ANY WORSHIP, BUT AS
BY PREVENTINGE DEBAISTNES, ALTHOUGH WEE KNOW MASTERS OR PARENTS CANNOT
AND ARE NOT BY VIOLENCE, TO INDEAVOR TO FORCE ANY UNDER THEIR
GOVERNMENT, TO ANY WORSHIPPER FROM ANY WORSHIPP, THAT IS NOT DEBAISTNES
OR DISTURBANT TO THE CIVILL PEACE, BUT THEY ARE TO REQUIRE THEM, AND IF
THAT WILL NOT PREVAILE, IF THEY CAN THEY SHOULD COMPELL THEM NOT TO DOE
WHAT IS DEBAISTNES, OR UNCIVILL OR INHUMAN, NOT TO FREQUENT ANY IMODEST
COMPANY OR PRACTICES." 

FN59  SEE NEW JERSEY, 1798:  DELAWARE, 1795 (THIS STATUTE DOES RECITE
THAT ITS PURPOSE IS TO DETER THOSE WHO "PROFANE" THE LORD'S DAY); NEW
HAMPSHIRE, 1785 AND 1789 (THESE ACTS WERE, HOWEVER, RECOMMENDED TO BE
READ BY MINISTERS TO THEIR CONGREGATIONS).  IT IS TRUE THAT THE
PENNSYLVANIA STATUTE OF 1794 IS AN ACT FOR THE PREVENTION OF IMMORALITY
AND THAT THE NEW JERSEY STATUTE OF 1790 IS "AN ACT TO PROMOTE THE
INTEREST OF RELIGION AND MORALITY, AND FOR SUPPRESSING OF VICE  ...  ,"
BUT EVEN THESE ENACTMENTS SHOW A VERY DIFFERENT TENOR THAN THAT OF
EARLIER LEGISLATION IN THE SAME COLONIES.  SEE, E.G., PENNSYLVANIA,
1682; NEW JERSEY, 1693. 

FN60  COMPARE NEW YORK'S LEGISLATION OF 1685, 1695. 

FN61  AN ACT TO ENFORCE THE DUE OBSERVATION OF THE SABBATH, 1 LAWS OF
VERMONT (1808) 275. 

FN62  THE EARLIEST LAW WAS THAT OF 1610.  FOR THE COLONY IN VIRGINEA
BRITANNIA, LAWES DIVINE, MORALL AND MARTIALL (1612), IN 3 FORCE, TRACTS
RELATING TO THE COLONIES IN NORTH AMERICA (1844), II, 10-11.  THIS WAS
FOLLOWED BY AN ACT OF 1623-1624.  1 HENING, STATUTES OF VIRGINIA
(1823), 123.  AND SEE ID., AT 144. 

FN63  SEE APPENDIX 1 TO THIS OPINION, POST, P. 549.  THE MOST
IMPORTANT STATUTES ARE THOSE OF 1629 AND 1705, 1 HENING, STATUTES OF
VIRGINIA (1823), 144; 3 HENING, STATUTES OF VIRGINIA (1823), 358. 

FN64  9 HENING, STATUTES OF VIRGINIA (1821), 109, 111-112. 

FN65  ID., AT 164. 

FN66  12 HENING, STATUTES OF VIRGINIA (1823), 84-86. 

FN67  2 PAPERS OF THOMAS JEFFERSON (BOYD ED. 1950) 305-324, 545-553. 
FOR THE STORY OF THE REVISION, SEE JEFFERSON'S AUTOBIOGRAPHY, IN I
WRITINGS OF THOMAS JEFFERSON (MEMORIAL ED.  1903) 62-67; I RANDALL,
LIFE OF THOMAS JEFFERSON (1858), 202-203, 208, 216 ET SEQ. 

FN68  2 PAPERS OF THOMAS JEFFERSON (BOYD ED. 1950) 555.  THE BILL WAS
ENTITLED:  "A BILL FOR PUNISHING DISTURBERS OF RELIGIOUS WORSHIP AND
SABBATH BREAKERS."  IT ALSO FORBADE THE ARREST FOR ANY CIVIL CAUSE OF
ANY MINISTER OF THE GOSPEL WHILE ENGAGED IN PUBLIC PREACHING OR
PERFORMING RELIGIOUS WORSHIP IN ANY CHURCH, AND PUNISHED ANY PERSON WHO
SHOULD MALICIOUSLY DISTURB ANY WORSHIPPING CONGREGATION OR MISUSE ANY
MINISTER THEREIN.  THERE IS EVIDENCE TO ATTRIBUTE THE ORIGINAL DRAFT OF
THE PROVISION TO JEFFERSON, ID., AT 314-321; IN ANY EVENT, WE KNOW
THAT, WITH THE OTHER REVISERS, HE STUDIED AND REWORKED EVERY BILL IN
THE REVISION UNTIL IT SATISFIED HIM.  AUTOBIOGRAPHY, IN I WRITINGS OF
THOMAS JEFFERSON (MEMORIAL ED. 1903) 66. 

FN69  JOURNAL OF THE HOUSE OF DELEGATES, COMMONWEALTH OF VIRGINIA,
OCT. 17, 1785 (1828), 12-14. 

FN70  12 HENING, STATUTES OF VIRGINIA (1823), 336.  THE WORDING OF
THE STATUTE AS PASSED DIFFERS SLIGHTLY FROM THAT OF THE BILL REPORTED
BY THE REVISERS. 

FN71  2 SHEPHERD, STATUTES OF VIRGINIA (1835), 149. 

FN72  APPENDIX II TO THIS OPINION, POST, P. 551.  ONLY ALASKA HAS NO
SUCH LEGISLATION. 

FN73  SEE DELAWARE, IOWA, WYOMING.  MANY STATES WHICH HAVE BROADER
SUNDAY STATUTES ALSO PROVIDE SPECIAL REGULATIONS FOR THE SALE OF
INTOXICANTS ON SUNDAY.  SIGNIFICANTLY, EVEN THOSE WHO HAVE ASSAILED THE
BAN ON SUNDAY LABOR AS AN UNCONSTITUTIONAL RELIGIOUS ESTABLISHMENT
ASSERT THE CONSTITUTIONALITY OF SUNDAY ALCOHOL CONTROL.  SEE, E.G.,
LEWIS, A CRITICAL HISTORY OF SUNDAY LEGISLATION (1888), IX.  THEY POINT
TO THE CONTEMPORARY JUSTIFICATION FOR THE PROHIBITION OF LIQUOR SALES
ON THAT DAY:  THE GREATER DANGER OF ABUSIVE USE OF ALCOHOL DURING A
TIME WHEN VIRTUALLY ALL PERSONS ARE AT LEISURE.  ADMITTING THAT THERE
ARE ALSO COGENT CONTEMPORARY REASONS FOR A SUNDAY LABOR BAN, THEY
ASSERT THAT THE HISTORY OF SUNDAY LABOR LEGISLATION REVEALS THAT THESE
LEGITIMATE REASONS ARE NOT THOSE WHICH IN FACT UNDERLIE IT.  BUT THE
ROOTS OF SUNDAY ALCOHOL CONTROL ARE AS DEEPLY BEDDED IN EARLY SABBATH
ANTI-TIPPLING STATUTES AS ARE THOSE OF SUNDAY LABOR LAWS IN LORD'S DAY
ACTS.  SEE THE CONNECTICUT STATUTE SET FORTH IN THE ACTS AND LAWS,
1750; DELAWARE, 1740; MARYLAND, 1674; MASSACHUSETTS BAY, 1653;
MASSACHUSETTS, 1761; NEW HAMPSHIRE, 1715; NEW YORK, 1685.  SEE STATE V.
ESKRIDGE, 31 TENN. 413 (1852).  INDEED, THE MOST SEVERE EFFORTS TO
ENFORCE SUNDAY PROHIBITIONS IN ENGLAND WERE FOR CENTURIES DIRECTED
AGAINST TIPPLING.  SEE WHITAKER, THE EIGHTEENTH-CENTURY ENGLISH SUNDAY
(1940), PASSIM; WHITAKER, SUNDAY IN TUDOR AND STUART TIMES (1933),
PASSIM. 

FN74  SEE NORTH CAROLINA.  MANY STATES WITH MORE COMPREHENSIVE BANS
ALSO SPECIFICALLY PROSCRIBE HUNTING.  SEE, E.G., CONNECTICUT, KENTUCKY,
MISSISSIPPI, TENNESSEE, VIRGINIA. 

FN75  SEE, E.G., ARIZONA, COLORADO, MONTANA. 

FN76  OREGON.  CF. MICHIGAN, NEW JERSEY, PENNSYLVANIA, RHODE ISLAND. 

FN77  COLORADO, WISCONSIN.  CF., E.G., CONNECTICUT, MAINE, MICHIGAN,
PENNSYLVANIA. 

FN78  SOME STATES HAVE SPECIFIC LEGISLATION ENABLING MUNICIPALITIES
TO REGULATE SUNDAY BUSINESS (E.G., NEBRASKA, NORTH DAKOTA), OR TO
SUPPRESS DESECRATION OF THE SABBATH (E.G., MICHIGAN, MISSISSIPPI, RHODE
ISLAND).  OFTEN SUCH AUTHORITY IS WRITTEN INTO A CITY'S CHARTER.  SEE,
E.G., STATE V. MCGEE, 237 N.C. 633, 75 S.E.2D 783 (1953), APP. DISM'D
FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION, 346 U.S. 802.  IN SOME
CASES CHARTER AUTHORITY TO REGULATE A GIVEN BUSINESS OR ACTIVITY HAS
BEEN HELD TO SUPPORT SUNDAY REGULATION OF THAT BUSINESS OR ACTIVITY. 
SEE, E.G., HICKS V. CITY OF DUBLIN, 56 GA. APP. 63, 191 S.E. 659
(1937).  WHERE NO OTHER ENABLING PROVISION IS FOUND, IT IS VIRTUALLY
UNANIMOUSLY HELD THAT POWER TO ENACT SUNDAY ORDINANCES EXISTS UNDER THE
GENERAL GRANT OF POLICE POWER TO A MUNICIPALITY.  E.G., IN RE SUMIDA,
177 CAL. 388, 170 P. 823 (1918); THEISEN V. MCDAVID, 34 FLA. 440, 16
SO. 321 (1894); KARWISCH V. MAYOR OF ATLANTA, 44 GA. 204 (1871);
HUMPHREY CHEVROLET, INC., V. CITY OF EVANSTON, 7 ILL. 2D 402, 131
N.E.2D 70 (1955); KOMEN V. CITY OF ST. LOUIS, 316 MO. 9, 289 S.W. 838
(1926)(SUBSEQUENTLY OVERRULED ON ANOTHER POINT); CITY OF ELIZABETH V.
WINDSOR-FIFTH AVENUE, INC., 31 N.J. SUPER.  187, 106 A.2D 9 (1954); EX
PARTE JOHNSON, 20 OKLA. CR. 66, 201 P. 533 (1921); MAYOR OF NASHVILLE
V. LINCK, 80 TENN. 499 (1852); CITY OF SEATTLE V. GERVASI, 144 WASH.
429, 258 P. 328 (1927); STATE EX REL. SMITH V. WERTZ, 91 W.VA. 622, 114
S.E. 242 (1922). 

FN79  THERE HAVE BEEN MORE THAN SEVENTY AMENDMENTS TO THE
MASSACHUSETTS SUNDAY REGULATION OVER THE PAST CENTURY.  SEE THE OPINION
BELOW, 176 F. SUPP. 466, 472, N. 2.  THE LATEST AMENDMENTS PRIOR TO THE
BRINGING OF SUIT IN THE GALLAGHER CASE WERE IN 1957.  MASS. ACTS 1957,
CC. 300, 356, SECS. 16, 17, 18.  BY MASS. ACTS 1960, C. 812, SEC. 3,
THE PROVISIONS OF CHAPTER 136, MASSACHUSETTS' GENERAL SUNDAY
REGULATIONS, WERE MADE APPLICABLE TO ALL OR PART OF CERTAIN LEGAL
HOLIDAYS, E.G., JANUARY FIRST, JULY FOURTH, THANKSGIVING DAY.  THE
PENNSYLVANIA STATUTE WHICH IS CONSIDERED HERE WAS ENACTED IN 1959.  PA.
LAWS 1959, NO. 212.  AND IN THE SAME YEAR THAT STATE'S LORD'S DAY
STATUTE WAS THREE TIMES AMENDED.  PA. LAWS 1959, NOS. 278, 540, 684. 
MARYLAND AMENDED THE PROVISIONS WHICH ARE NOW ITS CODE, ART. 27, SECS.
492 TO 534A, SEVEN TIMES IN 1959.  MARYLAND LAWS 1959, CC. 232, 236,
248, 503, 510, 715, 811. 

FN80  E.G., N.D. LAWS 1959, C. 131; TENN. ACTS 1957, C. 219. 

FN81  E.G., FLA. LAWS 1959, C. 59-295; ME. LAWS 1959, C. 302; OKLA.
LAWS 1959, P. 210. 

FN82 MAINE, MINNESOTA, MISSISSIPPI, NORTH DAKOTA, OKLAHOMA, WEST
VIRGINIA.  CF. INDIANA, MISSOURI.  BUT SEE ALABAMA, ILLINOIS, NEW
MEXICO, OHIO. 

LANGUAGE CAN ALSO BE FOUND IN JUDICIAL OPINIONS INTERPRETING SUNDAY
STATUTES WHICH ATTRIBUTES RELIGIOUS PURPOSE TO THEM.  SEE O'DONNELL V.
SWEENEY, 5 ALA. 467, 469 (1843); WELDON V. COLQUITT, 62 GA. 449, 451
452 (1879); STATE V. BEAUDETTE, 122 ME. 44, 45, 118 A. 719, 720 (1922);
PEARCE V. ATWOOD, 13 MASS. 324, 346-348 (1816); BENNETT V. BROOKS, 91
MASS. 118, 119-121 (1864); DAVIS V. CITY OF SOMERVILLE, 128 MASS. 594,
596 (1880); COMMONWEALTH V. WHITE, 190 MASS. 578, 580-582, 77 N.E. 636,
637 (1906); COMMONWEALTH V. MCCARTHY, 244 MASS. 484, 486, 138 N.E. 835,
836-837 (1923); ALLEN V. DUFFIE, 43 MICH. 1, 7-9, 4 N.W. 427, 431-433
(1880); BRIMHALL V. VAN CAMPEN, 8 MINN. 13, 22 (1862); KOUNTZ V. PRICE,
40 MISS.  341, 348 (1866); PEOPLE V. RUGGLES, 8 JOHNS.  290, 296-297
(N.Y. SUP. CT. 1811); SELLERS V. DUGAN, 18 OHIO 489, 490, 492 (1849);
COMMONWEALTH V. AMERICAN BASEBALL CLUB, 290 PA. 136, 143, 138 A. 497,
499 (1927); COMMONWEALTH V. COLEMAN, 60 PA. SUPER.  380, 385-386
(1915); PARKER V. STATE, 84 TENN. 476, 477-479, 1 S.W. 202-203 (1886);
GRAHAM V. STATE, 134 TENN. 285, 292, 183 S.W. 983, 985 (1915).  AND SEE
SMITH V. BOSTON & MAINE R. CO., 120 MASS. 490, 493 (1876); SOCIETY FOR
THE VISITATION OF THE SICK V. COMMONWEALTH, 52 PA. 125, 135 (1866). 
EVEN SOME DECISIONS SUSTAINING THE CONSTITUTIONALITY OF THE STATUTES
HAVE FOUND THEIR JUSTIFICATION, IN PART, IN THE PRESERVATION OF
CHRISTIAN TRADITIONS.  SHOVER V. STATE, 10 ARK. 259 (1850); STATE V.
AMBS, 20 MO. 214 (1854); STATE EX REL.  TEMPLE V. BARNES, 22 N.D. 18,
132 N.W. 215 (1911); CITY COUNCIL V. BENJAMIN, 2 STROB.  L. 508 (S.C.
1848).  CF. VARNEY V. FRENCH, 19 N.H. 233 (1848); ADAMS V. GAY, 19 VT.
358, 366 (1847).  BUT MOST OF THESE LATTER DECISIONS DATE FROM AN ERA
WHEN DAY-OF-REST CONCEPTIONS WERE NOT YET FULLY DEVELOPED:  THE THEN
PREVAILING NOTIONS OF THE POLICE POWER DID NOT ACCORD TO STATE
LEGISLATURES AUTHORITY TO PROTECT A MAN FROM THE HARM TO HIMSELF OF
UNINTERRUPTED LABOR.  COMPARE THOMASSON V. STATE, 15 IND. 449, 454
(1860)(SPEAKING OF THE "PATRIARCHAL THEORY OF GOVERNMENT") WITH, E.G.,
PEOPLE V. KLINCK PACKING CO., 214 N.Y. 121, 108 N.E. 278
(1915)(SUSTAINING NEW YORK'S SIX-DAY-WEEK STATUTE BY ANALOGY TO THE
SUNDAY LAW CASES).  THE LARGE MAJORITY OF DECISIONS APPLYING THE SUNDAY
LAWS IN CASES WHERE THEIR CONSTITUTIONALITY AS POSSIBLE INFRINGEMENTS
OF RELIGIOUS LIBERTY WAS NOT IN ISSUE HAVE REGARDED THE LAWS AS HAVING
EITHER AN EXCLUSIVELY SECULAR FUNCTION OR A FUNCTION ACCOMMODATING BOTH
THE CIVIL AND RELIGIOUS NEEDS OF THE COMMUNITY.  AS TO THE FORMER, SEE,
E.G., STATE V. SHUSTER, 145 CONN. 554, 145 A.2D 196 (1958); ROGERS V.
STATE, 60 GA. APP. 722, 4 S.E.2D 918 (1939); CARR V. STATE, 175 IND.
241, 93 N.E. 1071 (1911); TINDER V. CLARKE AUTO CO., 238 IND. 302, 149
N.E.2D 808 (1958); CITY OF HARLAN V. SCOTT, 290 KY. 585, 162 S.W.2D 8
(1942); LEVERING V. PARK COMMISSIONERS, 134 MD. 48, 106 A. 176 (1919);
STATE EX REL. HOFFMAN V. JUSTUS, 91 MINN. 447, 98 N.W. 325 (1904); CITY
OF ST. LOUIS V. DELASSUS, 205 MO. 578, 104 S.W. 12 (1907)(SUBSEQUENTLY
OVERRULED ON ANOTHER POINT); STATE V. CHICAGO, BURLINGTON & QUINCY R.
CO., 239 MO. 196, 143 S.W. 785 (1912); STATE V. MALONE, 238 MO. APP.
939, 192 S.W.2D 68 (1946); MORE V. CLYMER, 12 MO. APP. 11 (1882); AUTO
RITE SUPPLY CO. V. MAYOR OF WOODBRIDGE, 25 N.J. 188, 135 A.2D 515
(1957); RODMAN V. ROBINSON, 134 N.C. 503, 47 S.E.  19 (1904); STATE V.
RICKETTS, 74 N.C. 187 (1876); BLOOM V. RICHARDS, 2 OHIO ST. 387 (1853);
MCGATRICK V. WASON, 4 OHIO ST. 566 (1855); KRIEGER V. STATE, 12 OKLA.
CR. 566, 160 P. 36 (1916); STATE V. SMITH, 19 OKLA. CR. 184, 198 P. 879
(1921); STATE V. JAMES, 81 S.C. 197, 62 S.E.  214 (1908); FRANCISCO V.
COMMONWEALTH, 180 VA. 371, 23 S.E.2D 234 (1942); STATE V. BALTIMORE &
OHIO R. CO., 15 W.VA. 362 (1879); STATE EX REL. SMITH V. WERTZ, 91
W.VA. 622, 114 S.E. 242 (1922); AND SEE STARK V. BACKUS, 140 WIS. 557,
123 N.W. 98 (1909).  AS TO THE LATTER, SEE ROSENBAUM V. STATE, 131 ARK.
251, 199 S.W. 388 (1917); STATE V. HURLIMAN, 143 CONN. 502, 123 A.2D
767 (1956); RICHMOND V. MOORE, 107 ILL. 429 (1883); STATE V. MEAD, 230
IOWA 1217, 300 N.W. 523 (1941); CLEVELAND V. CITY OF BANGOR, 87 ME.
259, 32 A. 892 (1895); MATTER OF RUPP, 33 APP. DIV.  468, 53 N.Y.S. 927
(1898); PEOPLE V. MOSES, 140 N.Y. 214, 35 N.E. 499 (1893); MOORE V.
OWEN, 58 MISC. 332, 109 N.Y.S. 585 (N.Y. SUP. CT. 1908); MELVIN V.
EASLEY, 52 N.C. 356 (1860); JOHNSTON V. COMMONWEALTH, 22 PA. 102
(1853).  CF. THE CASES FINDING FOUNDATION FOR THE LAWS IN LONG
ESTABLISHED USAGE.  COMMONWEALTH V. LOUISVILLE & NASHVILLE R. CO., 80
KY. 291 (1882); MOHNEY V. COOK, 26 PA. 342 (1855); COMMONWEALTH V.
NESBIT, 34 PA. 398 (1859); COMMONWEALTH V. JEANDELLE, 3 PHILA.  509
(PA. Q.S. 1859).  AND SEE PEOPLE V. LAW, 142 N.Y.S.2D 440 (SPEC. SESS.
1955); PEOPLE V. BINSTOCK, 7 MISC. 2D 1039, 170 N.Y.S.2D 133 (SPEC.
SESS. 1957).    FN83  STATE OF NEW YORK, SECOND REPORT OF THE JOINT
LEGISLATIVE COMMITTEE ON SABBATH LAW, N.Y. LEG.  DOC.  NO. 48 (1953),
9.  SEE REPORT OF THE COMMITTEE ON THE JUDICIARY, ON THE PETITION
PRAYING THE REPEAL OF THE LAWS FOR THE OBSERVANCE OF THE SABBATH, &C.,
5 STATE OF NEW YORK, ASSEMBLY DOCS., DOC. NO. 262 (1838).  THIS LATTER
REPORT, DENYING ANY INTENTION TO ENFORCE THE DUTIES OF RELIGIOUS
CONSCIENCE, ID., AT 7, REGARDED RETENTION OF THE SUNDAY LAW AS
ADVISABLE, "VIEWING THE SABBATH MERELY AS A CIVIL INSTITUTION,
VENERABLE FROM ITS AGE, CONSECRATED AS A DAY OF REST BY THE USAGE OF
OUR FATHERS, AND CHERISHED BY THE COMMON CONSENT OF MANKIND THROUGHOUT
THE NATIONS OF CHRISTENDOM ...  ."  ID., AT 5.  "THE EXPERIENCE OF
MANKIND HAS SHEWN THAT OCCASIONAL REST IS NECESSARY FOR THE HEALTH OF
THE LABORER AND FOR HIS CONTINUED ABILITY TO TOIL; THAT 'THE INTERVAL
OF RELAXATION WHICH SUNDAY AFFORDS TO THE LABORIOUS PART OF MANKIND,
CONTRIBUTES GREATLY TO THE COMFORT AND SATISFACTION OF THEIR LIVES,
BOTH AS IT REFRESHES THEM FOR THE TIME, AND AS IT RELIEVES THEIR SIX
DAYS' LABOR BY THE PROSPECT OF A DAY OF REST ALWAYS APPROACHING  ...
.'"  ID., AT 7.  THE COMMITTEE DID REGARD AS A THIRD CONSIDERATION OF
IMPORTANCE THE NECESSITY OF TAKING ACCOUNT OF THE MORAL TEMPER OF THE
CHRISTIAN MAJORITY OF THE COMMUNITY, AND OF AFFORDING THE LABORER AN
OPPORTUNITY TO ATTEND CHURCH IF HE SO WISHED.  ID., AT 6-8. 

FN84  "THE COMMITTEE ARE OF ONE MIND AS TO THE NEED OF A WEEKLY DAY
OF REST FOR THE PRESERVATION OF THE HEALTH AND STRENGTH OF THE
COMMUNITY, AND WOULD THEREFOR RECOMMEND LEGISLATION TO SECURE TO ALL
CITIZENS THE RIGHT OF ONE CLEAR DAY'S REST IN SEVEN.  IN SO FAR AS
POSSIBLE, SUNDAY SHOULD BE MAINTAINED AS THE WEEKLY DAY OF REST; AND
WHENEVER THE NEEDS OF THE COMMUNITY, PUBLIC CONVENIENCE OR DEMAND
COMPEL LABOR ON SUNDAY, PERSONS THUS EMPLOYED SHOULD BE GIVEN A LEGAL
RIGHT TO REST ON SOME OTHER DAY OF THE WEEK."  REPORT OF THE JOINT
SPECIAL COMMITTEE TO REVISE, CONSOLIDATE AND ARRANGE THE GENERAL LAWS
...  RELATING TO THE OBSERVANCE OF THE LORD'S DAY, MASS. LEG.  DOCS.,
H. DOC. NO. 1160 (1907), 9.  FOR A SIMILAR, MORE RECENT EXPRESSION, SEE
REPORT SUBMITTED BY THE LEGISLATIVE RESEARCH COUNCIL RELATIVE TO LEGAL
HOLIDAYS AND THEIR OBSERVANCE, MASS. LEG.  DOCS., S. DOC. NO. 525
(1960), 24-25. 

IN THE LEGISLATIVE DEBATES ON THE BILL WHICH BECAME THE 1959
PENNSYLVANIA SUNDAY RETAIL SALES ACT, THE CHARGE OF RELIGIOUS PURPOSE
WAS PERSISTENTLY MADE BY THE BILL'S OPPONENTS, BUT SUCH A PURPOSE WAS
DISAVOWED BY EVERY SPEAKER WHO FAVORED THE BILL.  36 PENNSYLVANIA
LEGISLATIVE JOURNAL, 143D GENERAL ASSEMBLY (1959), 1137-1140, 2564
2565, 2682-2685.  SEE, E.G., THE REMARKS OF MR. WALKER, ID., AT 1139:
"AS I READ THIS BILL, I FIND NOTHING IN IT WHICH IS OF A RELIGIOUS
NATURE.  THE BILL IS PROMPTED BY THE THOUSANDS OF LETTERS THAT WE HAVE
ALL RECEIVED IN THE SENATE OF PENNSYLVANIA, ASKING US TO DO SOMETHING
FOR THE MEN AND WOMEN WHO WORK IN THE DEPARTMENT STORES.  THESE PEOPLE
ARE NOT ASKING TO GO TO CHURCH; THEY ARE ASKING FOR A DAY OF REST."  IT
IS APPARENT EVEN FROM THE OBJECTIONS RAISED BY THE OPPONENTS THAT
VARIOUS ECONOMIC INTERESTS, AMONG THEM THOSE OF ORGANIZED RETAILERS'
AND LABOR GROUPS, WERE INFLUENTIAL IN SUPPORTING THE MEASURE.  SEE
ESPECIALLY ID., AT 2682-2683. 

FN85  JACOBY, REMEMBER THE SABBATH DAY?  - THE NATURE AND CAUSES OF
THE CHANGES IN SUNDAY OBSERVANCE SINCE 1800 (DISSERTATION IN SOCIOLOGY,
MICROFILM, UNIVERSITY OF PENNSYLVANIA LIBRARY (1942)), PP. 137-140, 147
148, 154-155, 200-202, C. 9; KIRSTEIN, STORES AND UNIONS (1950), 19-21;
STATE OF NEW YORK, SECOND REPORT OF THE JOINT LEGISLATIVE COMMITTEE ON
SABBATH LAW, N.Y. LEG.  DOC.  NO. 48 (1953), 16 ET SEQ.; REPORT OF THE
UNPAID SPECIAL COMMISSION TO INVESTIGATE  ...  THE LAWS RELATING TO THE
OBSERVANCE OF THE LORD'S DAY, MASS. LEG.  DOCS., H. DOC. NO. 2413
(1954), 6; 36 PENNSYLVANIA LEGISLATIVE JOURNAL, 143D GENERAL ASSEMBLY
(1959), 1139, 2553.  SEE THE SUNDAY BUSINESS RESOLUTION OF THE 1959 AND
1960 CONVENTIONS OF THE NATIONAL RETAIL MERCHANTS ASSOCIATION, 41
STORES 6-7 (FEB. 1959); 42 STORES 13 (FEB. 1960); AND SEE NOTE 40
SUPRA.  FREQUENTLY LEGISLATION CLOSING ESTABLISHMENTS OF A GIVEN TRADE
IS THE PRODUCT OF LOBBYING EFFORTS BY ASSOCIATIONS OF TRADERS SEEKING
TO QUASH THE COMPETITIVE PRESSURES WHICH FORCE UNWANTED SUNDAY LABOR. 
SEE GUNDAKER CENTRAL MOTORS, INC., V. GASSERT, 23 N.J. 71, 127 A.2D 566
(1956), APP. DISM'D FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION, 354
U.S. 933; BREYER V. STATE, 102 TENN. 103, 50 S.W. 769 (1899).  BUT SEE
SUNDAY OBSERVANCE, HEARINGS BEFORE THE SUBCOMMITTEE ON JUDICIARY OF THE
COMMITTEE ON THE DISTRICT OF COLUMBIA, HOUSE OF REPRESENTATIVES, ON
H.R. 7189 AND H.R. 10311, 69TH CONG., 1ST SESS. (1926)(LABOR AND TRADE
GROUPS OPPOSE SUNDAY LEGISLATION SUPPORTED PRIMARILY BY CLERICAL
FACTION).  INCREASINGLY, THE RELIGIOUS PROPONENTS OF SUNDAY LEGISLATION
HAVE THEMSELVES COME TO COUCH THEIR ARGUMENTS IN TERMS OF HYGIENIC AND
SOCIAL, RATHER THAN TRANSCENDENTAL, VALUES.  SEE GILFILLAN, THE SABBATH
VIEWED IN THE LIGHT OF REASON, REVELATION, AND HISTORY (AM. ED. 1862),
209-227; FLOODY, SCIENTIFIC BASIS OF SABBATH AND SUNDAY (2D ED. 1906),
311-315; MCMILLAN, INFLUENCE OF THE WEEKLY REST-DAY ON HUMAN WELFARE
(1927). 

FN86  MASS. GEN. LAWS ANN., 1958, C. 149, SECS. 47 TO 51.  SECTION 47
PROVIDES: 

"WHOEVER, EXCEPT AT THE REQUEST OF THE EMPLOYEE, REQUIRES AN EMPLOYEE
ENGAGED IN ANY COMMERCIAL OCCUPATION OR IN THE WORK OF ANY INDUSTRIAL
PROCESS NOT SUBJECT TO THE FOLLOWING SECTION OR IN THE WORK OF
TRANSPORTATION OR COMMUNICATION TO DO ON SUNDAY THE USUAL WORK OF HIS
OCCUPATION, UNLESS HE IS ALLOWED DURING THE SIX DAYS NEXT ENSUING
TWENTY-FOUR CONSECUTIVE HOURS WITHOUT LABOR, SHALL BE PUNISHED BY A
FINE OF NOT MORE THAN FIFTY DOLLARS; BUT THIS AND THE FOLLOWING SECTION
SHALL NOT BE CONSTRUED AS ALLOWING ANY WORK ON SUNDAY NOT OTHERWISE
AUTHORIZED BY LAW." 


"EVERY EMPLOYER OF LABOR ENGAGED IN CARRYING ON ANY MANUFACTURING,
MECHANICAL OR MERCANTILE ESTABLISHMENT OR WORKSHOP  ...  SHALL ALLOW
EVERY PERSON  ...  (WITH EXCEPTIONS:  SEE SECS.  49, 50) EMPLOYED IN
SUCH MANUFACTURING, MECHANICAL OR MERCANTILE ESTABLISHMENT OR WORKSHOP
AT LEAST TWENTY-FOUR CONSECUTIVE HOURS OF REST, WHICH SHALL INCLUDE AN
UNBROKEN PERIOD COMPRISING THE HOURS BETWEEN EIGHT O'CLOCK IN THE
MORNING AND FIVE O'CLOCK IN THE EVENING, IN EVERY SEVEN CONSECUTIVE
DAYS.  NO EMPLOYER SHALL OPERATE ANY SUCH MANUFACTURING, MECHANICAL OR
MERCANTILE ESTABLISHMENT OR WORKSHOP ON SUNDAY UNLESS HE HAS COMPLIED
WITH SECTION FIFTY-ONE  ...  ." 


"BEFORE OPERATING ON SUNDAY, EVERY EMPLOYER SUBJECT TO SECTION FORTY
EIGHT  ...  SHALL POST IN A CONSPICUOUS PLACE ON THE PREMISES A
SCHEDULE CONTAINING A LIST OF HIS EMPLOYEES WHO ARE REQUIRED OR ALLOWED
TO WORK ON SUNDAY, AND DESIGNATING THE DAY OF REST FOR EACH.  NO
EMPLOYEE SHALL BE REQUIRED OR ALLOWED TO WORK ON THE DAY OF REST
DESIGNATED FOR HIM." 

NOTE THE EVOLUTION OF THESE SECTIONS THROUGH MASS. ACTS 1907, C. 577,
CODIFIED IN THE LABOR CODE OF 1909, MASS. ACTS 1909, C. 514, SEC. 52;
MASS. ACTS 1913, C. 619. 

FN87  SEE ILL. REV. STAT., 1959, C. 48, SECS. 8A TO 8G; N.H. REV.
STAT. ANN., 1955, SECS.  275.32, 275.33; N.Y. LAB.  LAW SEC. 161; ORE. 
WAGE AND HOUR COMM'N ORDERS NOS. 8 (1959), 9 (1952), 12 (1953), CCH
LAB.  LAW REP., STATE LAWS (1960), PP. 57,561, 57,562, 57,564.  CF.
WEST'S WIS. STAT. ANN., 1957, SEC. 103.85.  AND SEE PURDON'S PA. STAT.
ANN., 1952, TIT. 43, SEC. 361. 

FN88  PURDON'S PA. STAT. ANN., 1960 SUPP., TIT. 4, SEC. 60.  SEE ALSO
ME. REV. STAT., 1954, C. 134, SEC. 41; SUNDAY ENTERTAINMENTS ACT, 1932,
22 & 23 GEO. V, C. 51, SEC. 1(1)(A).  CF.  P.R. LAWS ANN., 1955, TIT.
29, SEC. 295. 

FN89  P.R. LAWS ANN., 1955, TIT. 33, SEC. 2201.  CF. COLO. REV. STAT.
ANN., 1953, SEC.  27-1-4; R.I. GEN. LAWS, 1956, SEC. 5-16-5. 

FN90  R.I. GEN. LAWS, 1956, SECS. 25-1-6, 25-1-8; S.C. CODE, 1952,
TIT. 64, SEC. 5.  SEE ALSO MULLIS V. CELANESE CORP., 234 S.C. 380, 108
S.E.2D 547 (1959). 

FN91  SEE MEAD, THE PATTERN OF LEISURE IN CONTEMPORARY AMERICAN
CULTURE, 313 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL
SCIENCE 11-12 (SEPT. 1957). 

FN92  AMONG THE MANY EXAMPLES THAT MIGHT BE FOUND IN FRAZER'S GOLDEN
BOUGH, SEE HIS DISCUSSIONS OF INCEST AND MURDER, THE GOLDEN BOUGH (3D
ED., AM. REPRINT 1951), II THE MAGIC ART 107-117; TABOO AND THE PERILS
OF THE SOUL 218-219.  FOR OTHER CLASSIC INSTANCES IN VARIOUS FIELDS,
SEE WESTON, FROM RITUAL TO ROMANCE (ANCHOR ED. 1957), PASSIM,
ESPECIALLY 81-100; GILBERT MURRAY, "EXCURSUS ON THE RITUAL FORMS
PRESERVED IN GREEK TRAGEDY," IN HARRISON, THEMIS (1912), 341 ET SEQ.;
KLUCKHOHN AND LEIGHTON, THE NAVAHO (1946), 162-163; TAWNEY, RELIGION
AND THE RISE OF CAPITALISM (3D MENTOR ED. 1950), PASSIM. 

SEE WEEKLY REST IN COMMERCE AND OFFICES, REPORT A, INTERNATIONAL
LABOUR CONFERENCE, 26TH SESS., GENEVA, 1940 (1939), 2:  "SUNDAY REST
LAWS, FROM THE FOURTH COMMANDMENT DOWNWARDS, HAVE ALWAYS BEEN SOCIAL AS
WELL AS RELIGIOUS IN INTENTION, SEEKING TO PROVIDE A PERIODIC REST FROM
DAILY TOIL AS WELL AS AN OPPORTUNITY FOR RELIGIOUS OBSERVANCE."  AMONG
THE WEEKLY-REST LEGISLATION OF THE MANY NATIONS SURVEYED BY THE
INTERNATIONAL LABOR ORGANIZATION'S PERTINENT REPORTS, THE SYSTEM MOST
COMMON IS TO PROVIDE FOR A UNIFORM REST DAY, USUALLY ON SUNDAY.  SEE,
ID., PASSIM, ESPECIALLY AT 71-74; WEEKLY REST IN COMMERCE AND OFFICES,
REPORT VII(1), INTERNATIONAL LABOUR CONFERENCE, 39TH SESS., GENEVA,
1956 (1955), PASSIM, ESPECIALLY AT 18, 24-26.  "THIS TENDENCY TO ENSURE
THAT THE WEEKLY REST IS TAKEN AT THE SAME TIME BY ALL WORKERS ON THE
DAY ESTABLISHED BY TRADITION OR CUSTOM HAS AN OBVIOUS SOCIAL PURPOSE,
NAMELY TO ENABLE THE WORKERS TO TAKE PART IN THE LIFE OF THE COMMUNITY
AND IN THE SPECIAL FORMS OF RECREATION WHICH ARE AVAILABLE ON CERTAIN
DAYS."  ID., AT 24.  COMMENTING ON THE WORLD-WIDE PRACTICE OF WEEKLY
REST, THE ILO REPORTERS OBSERVE:  "QUITE OFTEN THE PRACTICE ORIGINATED
AS A RELIGIOUS OBSERVANCE AND DEVELOPED INTO A TRADITION WHICH HAS
PERSISTED DESPITE THE DISAPPEARANCE OF THE ORIGINAL REASONS OR THE
DECLINE IN THE PART PLAYED BY RELIGIOUS INSTITUTIONS IN THE SOCIAL
STRUCTURE.  AT A VERY EARLY STAGE THIS RELIGIOUS OBSERVANCE WAS BACKED
BY CIVIL LAW AND EVEN TODAY TRACES OF THIS CAN OFTEN BE FOUND IN
CONSTITUTIONS AND CIVIL CODES, IN MUNICIPAL BY-LAWS AND IN THE
REGULATIONS OF MANY COUNTRIES CONCERNING OPENING AND CLOSING HOURS OF
COMMERCIAL AND OTHER ESTABLISHMENTS.  LABOUR LEGISLATION HAS
ENDEAVOURED TO MAINTAIN AND EXTEND THIS PRACTICE IN THE LIGHT OF THE
ECONOMIC NEEDS OF MODERN SOCIETY  ...  ."  ID., AT 3. 

FN93  THE DISTRICT COURT IN THE GALLAGHER CASE BELIEVED THAT THE
MASSACHUSETTS LORD'S DAY STATUTE COULD NOT REASONABLY BE REGARDED AS A
DAY-OF-REST PROVISION, FIRST, BECAUSE ITS EXTENSIVE EXCEPTIONS ALLOWED
MANY PERSONS TO LABOR SEVEN DAYS A WEEK AND, SECOND, BECAUSE
MASSACHUSETTS HAS OTHER STATUTES PROVIDING FOR TWENTY-FOUR CONSECUTIVE
HOURS OF REST EVERY SEVEN DAYS.  MASS.  GEN. LAWS ANN., 1958, C. 149,
SECS. 47 TO 51.  THESE LATTER PROVISIONS, HOWEVER, BY THEIR EXPRESS
TERMS, SUPPLEMENT, DO NOT SUPPLANT, THE SUNDAY PROHIBITIONS.  THE TWO
OBJECTIONS TO SOME EXTENT ANSWER EACH OTHER:  THE EXISTENCE OF THE SIX
DAY LAW IS JUSTIFIED BY, AND IN PART PROVIDES FOR, THE DEFICIENCIES OF
THE LORD'S DAY STATUTE AS DAY-OF-REST LEGISLATION.  BUT, IN ANY EVENT,
THE LORD'S DAY STATUTE IS NOT MERELY DAY-OF-REST LEGISLATION.  IT IS
COMMON-DAY-OF-REST LEGISLATION.  TO CERTAIN PERSONS WHO, FOR REASONS
DEEMED COMPELLING BY THE MASSACHUSETTS LEGISLATURE, CANNOT SHARE IN
THIS COMMON DAY - SIMPLY BECAUSE NOT ALL ACTIVITY CAN CEASE, EVEN ON
SUNDAY - THE LABOR CODE AT LEAST ASSURES A DAY OF PHYSICAL REST. 
COMPARE THE CONCLUSIONS FOUND IN WEEKLY REST IN COMMERCE AND OFFICES,
REPORT VII(1), INTERNATIONAL LABOUR CONFERENCE, 39TH SESS., GENEVA,
1956 (1955), 52.  IT MAY BE NOTED THAT A LARGE MAJORITY OF THE THIRTY
FOUR STATES HAVING COMPREHENSIVE SUNDAY RESTRICTIONS ALSO HAVE SOME SIX
DAY-WEEK PROVISIONS IN THEIR LABOR OR CHILD-LABOR CODES OR
REGULATIONS.  SEE APPENDIX II TO THIS OPINION, POST.  P. 551. 

THE DISTRICT COURT, IN CONCLUDING THAT THE MASSACHUSETTS LORD'S DAY
STATUTE IS RELIGIOUS LEGISLATION, TOOK ACCOUNT OF ITS ORIGINS IN
COLONIAL LAWS, OF ITS LANGUAGE AND THE LANGUAGE OF THE MASSACHUSETTS
COURTS IN CASES APPLYING IT, OF THE STATUTORY EXCEPTIONS PERMITTING
CERTAIN RECREATIONAL ACTIVITY ONLY IN THE AFTERNOON HOURS AND, IN SOME
CASES, AT A DESIGNATED DISTANCE FROM PLACES OF WORSHIP, AND OF
STATEMENTS IN AN AMICUS BRIEF INDICATING THAT AMICI HAD AN INTEREST IN
PREVENTING THE SECULARIZATION OF SUNDAY.  THE IMPLICATIONS OF HISTORY
AND OF THE STATUTORY LANGUAGE HAVE ALREADY BEEN DISCUSSED HEREIN.  THE
OPINIONS IN THE MASSACHUSETTS CASES ADVERTED TO BY THE COURT BELOW, THE
LATEST DECIDED IN 1923, ARE INSUFFICIENT TO ESTABLISH THAT THE
MASSACHUSETTS LEGISLATION AS APPLIED IN 1960 TO PROHIBIT THE SUNDAY
OPERATION OF SUPERMARKETS LACKS SUBSTANTIAL SECULAR PURPOSES AND
EFFECTS.  SEE NOTE 101, INFRA.  THE VALIDITY OF APPLICATIONS OF THE
STATUTE POSSIBLY AFFECTED BY THE AFTERNOON-HOUR EXCEPTIONS IS NOT NOW
PRESENTED; SUFFICE TO SAY THAT THESE EXCEPTIONS DO NOT RENDER THE
LEGISLATION UNCONSTITUTIONAL IN ITS ENTIRETY OR IN THE CIRCUMSTANCES OF
THIS LITIGATION.  AND THE PURPOSES, VIEWS AND INTENTIONS OF AMICI, OF
COURSE, CANNOT BE ATTRIBUTED TO THE LEGISLATURE OF THE STATE OF
MASSACHUSETTS. 

FN94  SEE TEXT AT NOTE 37, SUPRA.  CF. REPORT OF THE UNPAID SPECIAL
COMMISSION TO INVESTIGATE  ...  THE LAWS RELATING TO THE OBSERVANCE OF
THE LORD'S DAY, MASS. LEG.  DOCS., H. DOC. NO. 2413 (1954), 9:  "THE
WAVE OF MATERIALISM WHICH IS SWEEPING THE COUNTRY MAKES IT MOST
IMPORTANT THAT ONE DAY BE SET ASIDE FOR WORSHIP, REST AND TO GIVE ALL
PERSONS AN OPPORTUNITY TO STRENGTHEN THE BULWARK OF OUR AMERICAN
CIVILIZATION - THE HOME."  COMPARE REPORT ON THE WEEKLY REST-DAY IN
INDUSTRIAL AND COMMERCIAL EMPLOYMENT, REPORT VII, INTERNATIONAL LABOUR
CONFERENCE, 3D SESS., GENEVA, 1921 (1921), 127:  "SOCIAL CUSTOM
REQUIRES THAT THE SAME REST-DAY SHOULD AS FAR AS POSSIBLE BE ACCORDED
TO THE MEMBERS OF THE SAME WORKING FAMILY AND TO THE WORKING CLASS
COMMUNITY AS A WHOLE."    FN95  SEE NOTE 92, SUPRA.  SEE ALSO THE
RESOLUTION OF THE INTERNATIONAL CONGRESS FOR WEEKLY REST, 1889, QUOTED
IN NOTE 40, SUPRA. 

FN96  EX PARTE NEWMAN, 9 CAL. 502.  JUSTICE FIELD'S DISSENT IN THIS
CASE HAS BECOME A LEADING PRONOUNCEMENT ON THE CONSTITUTIONALITY OF
SUNDAY LAWS. 

FN97  EX PARTE ANDREWS, 18 CAL. 678.  THE CONTROLLING CALIFORNIA
CONSTITUTIONAL GUARANTEE OF RELIGIOUS FREEDOM COMPORTS ONLY AN ANALOGUE
TO THE FIRST AMENDMENT'S "FREE EXERCISE," NOT AN ANALOGUE TO THE
"ESTABLISHMENT" CLAUSE. 

FN98  E.G., PETIT V. MINNESOTA, 177 U.S. 164.  CF. HENNINGTON V.
GEORGIA, 163 U.S. 299; SOON HING V. CROWLEY, 113 U.S. 703, 710.  IN RE
SUMIDA, 177 CAL. 388, 170 P. 823 (1918); MCCLELLAND V. CITY OF DENVER,
36 COLO. 486, 86 P. 126 (1906)(BARBERING PROHIBITED); ROSENBAUM V. CITY
& COUNTY OF DENVER, 102 COLO. 530, 81 P.2D 760 (1938)(AUTOMOBILE SALES
PROHIBITED); MOSKO V. DUNBAR, 135 COLO. 172, 309 P.2D 581
(1957)(AUTOMOBILE SALES PROHIBITED); WALSH V. STATE, 33 DEL. (3 W.W.
HARR.)  514, 139 A. 257 (1927), SEMBLE; GILLOOLEY V. VAUGHAN, 92 FLA.
943, 956, 110 SO. 653, 657 (1926)(CABARETS AND CINEMA PROHIBITED);
STATE V. DOLAN, 13 IDAHO 693, 92 P. 995 (1907); STATE V. CRANSTON, 59
IDAHO 561, 85 P.2D 682 (1938); MCPHERSON V. VILLAGE OF CHEBANSE, 114
ILL. 46, 28 N.E. 454 (1885)(ORDINANCE HELD AUTHORIZED BY POLICE POWER);
VOGLESONG V. STATE, 9 IND. 112 (1857); FOLTZ V. STATE, 33 IND. 215
(1870); STATE V. LINSIG, 178 IOWA 484, 159 N.W. 995 (1916); PEOPLE V.
DEROSE, 230 MICH. 180, 203 N.W. 95 (1925)(ORDINANCE CLOSING MARKETS
HELD AUTHORIZED BY POLICE POWER); IN RE BERMAN, 344 MICH. 598, 75
N.W.2D 8 (1956)(ORDINANCE PROHIBITING SALE OF FURNITURE HELD AUTHORIZED
BY POLICE POWER); STATE V. DEAN, 149 MINN. 410, 184 N.W. 275 (1921);
POWER V. NORDSTROM, 150 MINN. 228, 184 N.W. 967 (1921)(ORDINANCE
CLOSING CINEMA, SHOWS, THEATER, HELD AUTHORIZED BY POLICE POWER);
PARAMOUNT-RICHARDS THEATRES, INC., V. CITY OF HATTIESBURG, 210 MISS. 
271, 49 SO. 2D 574 (1950); STATE V. LOOMIS, 75 MONT. 88, 242 P. 344
(1925)(CLOSING DANCE HALLS); GUNDAKER CENTRAL MOTORS, INC., V. GASSERT,
23 N.J. 71, 127 A.2D 566 (1956), APP. DISM'D FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION, 354 U.S. 933 (AUTOMOBILE TRADING PROHIBITED); PEOPLE
V. HAVNOR, 149 N.Y. 195, 43 N.E. 541 (1896), WRIT OF ERROR DISM'D, 170
U.S. 408 (BARBERING PROHIBITED); STATE V. WEDDINGTON, 188 N.C. 643, 125
S.E. 257 (1924)(ORDINANCE HELD AUTHORIZED BY POLICE POWER); STATE V.
HAASE, 97 OHIO APP. 377, 116 N.E.2D 224 (1953); EX PARTE JOHNSON, 20
OKLA. CR. 66, 201 P. 533 (1921)(ORDINANCE CLOSING CINEMA AND THEATERS
HELD AUTHORIZED BY POLICE POWER); EX PARTE JOHNSON, 77 OKLA. CR. 360,
141 P.2D 599 (1943)(BARBERING PROHIBITED); EX PARTE NORTHRUP, 41 ORE. 
489, 69 P. 445 (1902)(BARBERING PROHIBITED); STATE V. NICHOLLS, 77
ORE.  415, 151 P. 473 (1915); BREYER V. STATE, 102 TENN. 103, 50 S.W.
769 (1899)(BARBERING PROHIBITED); STATE V. SOPHER, 25 UTAH 318, 71 P.
482 (1903); NORFOLK & WESTERN R. CO. V. COMMONWEALTH, 93 VA. 749, 24
S.E. 837 (1896)(STATUTE PROHIBITING OPERATION OF RAILROADS HELD
SUSTAINABLE AS EXERCISE OF POLICE POWER); STATE V. NICHOLS, 28 WASH.
628, 69 P. 372 (1902); CITY OF SEATTLE V. GERVASI, 144 WASH. 429, 258
P. 328 (1927)(COMPREHENSIVE ORDINANCE FOUND AUTHORIZED BY POLICE
POWER).  SEE ALSO KREIDER V. STATE, 103 ARK. 438, 440, 147 S.W. 449,
450 (1912); STATE V. MILLER, 68 CONN. 373, 377-378, 36 A. 795, 796
(1896); STATE V. DIAMOND, 56 N.D. 854, 857-858, 219 N.W. 831, 832-833
(1928); RICH V. COMMONWEALTH, 198 VA. 445, 449, 453, 94 S.E.2D 549,
552, 555 (1956).  COMPARE PACESETTER HOMES, INC., V. VILLAGE OF SOUTH
HOLLAND, 18 ILL. 2D 247, 163 N.E.2D 464 (1960), ADMITTING LEGISLATIVE
POWER TO PROHIBIT SUNDAY ACTIVITY DISTURBING TO THE COMMUNITY, BUT
STRIKING DOWN A BLANKET CLOSING ORDINANCE WITH VIRTUALLY NONE OF THE
USUAL EXCEPTIONS AS TOO EXTREME TO BE JUSTIFIED UNDER THIS RATIONALE. 

FN99  E.G., FROLICKSTEIN V. MAYOR OF MOBILE, 40 ALA. 725 (1867); LANE
V. MCFADYEN, 259 ALA.  205, 66 SO. 2D 83 (1953)(ISSUE NOT RAISED BY
LITIGANTS; COURT NEVERTHELESS CONSIDERS IT); ELLIOTT V. STATE, 29 ARIZ.
389, 242 P. 340 (1926)(DICTUM); SHOVER V. STATE, 10 ARK. 259 (1850);
SCALES V. STATE, 47 ARK. 476, 1 S.W. 769 (1886); EX PARTE KOSER, 60
CAL. 177 (1882); KARWISCH V. MAYOR OF ATLANTA, 44 GA. 204 (1871),
SETTLING THE ISSUE LEFT OPEN IN SANDERS V. JOHNSON, 29 GA. 526 (1859);
HUMPHREY CHEVROLET, INC., V. CITY OF EVANSTON, 7 ILL. 2D 402, 131
N.E.2D 70 (1955)(AT LEAST AS APPLIED TO CORPORATE AND NON-SABBATARIAN
PARTIES); STATE V. BLAIR, 130 KAN.  863, 288 P. 729 (1930); STATE V.
HAINING, 131 KAN. 853, 293 P. 952 (1930); STRAND AMUSEMENT CO. V.
COMMONWEALTH, 241 KY. 48, 43 S.W.2D 321 (1931), SEMBLE; STATE V. BOTT,
31 LA. ANN. 663 (1879)(FORBIDDING LIQUOR SALES); STATE EX REL. WALKER
V. JUDGE, 39 LA. ANN. 132, 1 SO. 437 (1887); JUDEFIND V. STATE, 78 MD.
510, 28 A. 405 (1894)(CONSIDERED DICTUM); HILLER V. STATE, 124 MD.
385, 92 A. 842 (1914)(PROHIBITING SPORTS); COMMONWEALTH V. HAS, 122
MASS. 40 (1877); COMMONWEALTH V. CHERNOCK, 336 MASS. 384, 145 N.E.2D
920 (1957); SCOUGALE V. SWEET, 124 MICH. 311, 82 N.W. 1061
(1900)(CONSIDERED DICTUM); STATE V. PETIT, 74 MINN. 376, 77 N.W. 225
(1898), AFF'D, 177 U.S. 164; STATE V. WEISS, 97 MINN. 125, 105 N.W.
1127 (1906); STATE V. AMBS, 20 MO. 214 (1854); KOMEN V. CITY OF ST.
LOUIS, 316 MO. 9, 289 S.W. 838 (1926)(CLOSING BAKERIES)(SUBSEQUENTLY
OVERRULED ON ANOTHER POINT); IN RE CALDWELL, 82 NEB. 544, 118 N.E. 133
(1908), SEMBLE; STEWART MOTOR CO. V. CITY OF OMAHA, 120 NEB. 776, 235
N.W. 332 (1931)(PROHIBITING AUTOMOBILE SALES), SEMBLE; TWO GUYS FROM
HARRISON, INC., V. FURMAN, 32 N.J. 199, 160 A.2D 265 (1960);
LINDENMULLER V. PEOPLE, 33 BARB.  548 (N.Y. SUP. CT. 1861)(CLOSING
THEATERS); NEUENDORFF V. DURYEA, 69 N.Y. 557 (1877)(SAME); PEOPLE V.
FRIEDMAN, 302 N.Y. 75, 96 N.E.2D 184 (1950), APP. DISM'D FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION, 341 U.S. 907; STATE V. MCGEE, 237 N.C.
633, 75 S.E.2D 783 (1953), APP. DISM'D FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION, 346 U.S. 802; STATE EX REL.  TEMPLE V. BARNES, 22
N.D. 18, 132 N.W. 215 (1911)(CLOSING THEATERS); STATE V. POWELL, 58
OHIO ST. 324, 50 N.E. 900 (1898)(PROHIBITING SPORTS); STATE V. KIDD,
167 OHIO ST. 521, 150 N.E.2D 413 (1958), APP. DISM'D FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION, 358 U.S. 131, 132; COMMONWEALTH V. WOLF,
3 S.&R. 48 (PA. 1817); SPECHT V. COMMONWEALTH, 8 PA. 312 (1848);
COMMONWEALTH V. BAUDER, 188 PA. SUPER.  424, 145 A.2D 915 (1958); CITY
COUNCIL V. BENJAMIN, 2 STROB.  L. 508 (S.C. 1848); XEPAPAS V.
RICHARDSON, 149 S.C. 52, 146 S.E. 686 (1929); EX PARTE SUNDSTROM, 25
TEX. APP. 133, 8 S.W. 207 (1888); SAYEG V. STATE, 114 TEX. CR. R. 153,
25 S.W.2D 865 (1930), SEMBLE; CLARK V. STATE, 167 TEX. CR. R. 204, 319
S.W.2D 726 (1959), SEMBLE; PIRKEY BROS. V. COMMONWEALTH, 134 VA. 713,
114 S.E. 764 (1922)(ISSUE NOT RAISED BY LITIGANTS; COURT NEVERTHELESS
CONSIDERS IT); CROOK V. COMMONWEALTH, 147 VA. 593, 136 S.E. 565
(1927)(SAME); STATE V. BERGFELDT, 41 WASH. 234, 83 P. 177 (1905), WRIT
OF ERROR DISM'D, 210 U.S. 438 (PROHIBITING BARBERING); STATE V.
GRABINSKI, 33 WASH. 2D 603, 206 P.2D 1022 (1949).  FOLLOWING THE
DECISION IN THE GALLAGHER CASE BELOW, AND RELYING ON IT, A PENNSYLVANIA
COURT OF QUARTER SESSIONS RECENTLY HELD THE 1959 PENNSYLVANIA SUNDAY
RETAIL SALES ACT UNCONSTITUTIONAL ON THE GROUNDS THAT ITS INCIDENCE IS
DISCRIMINATORY AND ARBITRARY AND THAT IT OPERATES TO PREFER SUNDAY
OBSERVING RELIGIONS.  COMMONWEALTH V. CAVALERRO, 142 LEGAL
INTELLIGENCER 519 (PHILA., AP.  22, 1960)(PA. Q.S. 1960).  ANOTHER
PENNSYLVANIA COURT OF FIRST IMPRESSION SHORTLY THEREAFTER REACHED THE
SAME CONCLUSIONS.  BARGAIN CITY U.S.A., INC., V. DILWORTH, 142 LEGAL
INTELLIGENCER 813 (PHILA., JUNE 22, 1960)(PA. C.P. 1960).  THESE APPEAR
TO BE THE ONLY TWO STANDING STATE-COURT DECISIONS STRIKING DOWN SUNDAY
LAWS, AS, IN PART, VIOLATIVE OF RELIGIOUS FREEDOM, IN A CENTURY AND A
HALF OF LITIGATION. 

IN DISTRICT OF COLUMBIA V. ROBINSON, 30 APP. D.C. 283 (1908), THE
COURT OF APPEALS, WHILE RECOGNIZING THE VALIDITY AS CIVIL REGULATIONS
OF MODERN SUNDAY CLOSING STATUTES, HELD THE 1723 MARYLAND SUNDAY LAW
OBSOLETE AND INAPPLICABLE IN THE DISTRICT OF COLUMBIA, LARGELY ON THE
GROUND THAT ITS PURPOSE WAS RELIGIOUS.  COMPARE O'HANLON V. MYERS, 10
RICH.  L. 128 (S.C. 1856).  IN BRUNSWICK-BALKE-COLLANDER CO. V. EVANS,
228 F. 299 (C.C.E.D. ARK. 1884); IN RE KING, 46 F. 905 (C.C.W.D. TENN.
1891). 

FN100  APPEALS IN CASES CHALLENGING SUNDAY LAWS AS VIOLATIVE OF THE
DUE PROCESS CLAUSE WERE ALSO DISMISSED FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION IN GUNDAKER CENTRAL MOTORS, INC., V. GASSERT, 354 U.S.
933, AND GROCHOWIAK V. PENNSYLVANIA, 358 U.S. 47. 

FN101  THIS DOES NOT, OF COURSE, IMPLY AN OPINION OF THE LEGITIMACY
OF ALL THE SUNDAY PROVISIONS OF ALL THE STATES, OR OF EVERY APPLICATION
OF THE STATUTES NOW BEFORE THIS COURT.  IT IS TRUE THAT THE
MASSACHUSETTS COURTS HAVE AT TIMES EXPRESSED AN INTENTION TO APPLY THE
MASSACHUSETTS LORD'S DAY STATUTE IN ACCORDANCE WITH THE TEMPER IN WHICH
ITS HISTORICAL ANTECEDENTS WERE ENACTED.  COMPARE THE LANGUAGE OF DAVIS
V. CITY OF SOMERVILLE, 128 MASS. 594 (1880); COMMONWEALTH V. DEXTRA,
143 MASS. 28, 8 N.E. 756 (1886); COMMONWEALTH V. WHITE, 190 MASS. 578,
77 N.E. 636 (1906); COMMONWEALTH V. MCCARTHY, 244 MASS. 484, 138 N.E.
835 (1923), WITH THE VIRGINIA CASES, FRANCISCO V. COMMONWEALTH, 180 VA.
371, 23 S.E.2D 234 (1942), AND RICH V. COMMONWEALTH, 198 VA. 445, 94
S.E.2D 549 (1956).  SEE COMMONWEALTH V. SAMPSON, 97 MASS. 407 (1867). 
BUT SEE STONE V. GRAVES, 145 MASS. 353, 13 N.E. 906 (1887).  IT WILL BE
TIME ENOUGH TO PASS UPON THE CONSTITUTIONALITY OF SUCH APPLICATIONS AS
DO NOT REASONABLY COME WITHIN THE RATIONALE OF THE PRESENT DECISION,
AND OF COMMONWEALTH V. HAS, 122 MASS. 40, 42 (1877), IF AND WHEN THOSE
CASES ARISE.  SEE BRATTLE FILMS, INC., V. COMMISSIONER OF PUBLIC
SAFETY, 333 MASS.  58, 127 N.E.2D 891 (1955). 

FN102  WISCONSIN, WHICH DOES NOT HAVE A GENERAL BAN ON SUNDAY LABOR,
BUT DOES HAVE A STATUTE PROHIBITING AUTOMOBILE TRADING ON THAT DAY,
ALSO MAKES AN EXCEPTION IN FAVOR OF THOSE WHO CONSCIENTIOUSLY OBSERVE
THE JEWISH SABBATH.  WEST'S WIS. STAT. ANN., 1961 SUPP., SEC.
218.01(3)(A)21.  OTHER JURISDICTIONS HAVING STATUTES WHICH COVER ONLY
ONE OR A FEW ENUMERATED ACTIVITIES PROVIDE NO SABBATARIAN EXCEPTION. 
FLA. LAWS 1959, SPECIAL ACTS, C. 59-1650, A LOCAL-OPTION SHOP-CLOSING
STATUTE APPLICABLE TO ORANGE COUNTY, DOES CONTAIN SUCH AN EXCEPTION,
AND IN MICHIGAN THERE ARE SIMILAR EXCEPTING CLAUSES ATTACHED TO
BARBERING AND AUTO-TRADING BANS AS WELL AS TO THE GENERAL SUNDAY LAWS. 
MICH. STAT. ANN., 1957 REV. VOL., SECS. 18.122, 9.2702 

FN103  IN KANSAS, MASSACHUSETTS, MISSOURI, NEW JERSEY, NEW YORK,
NORTH DAKOTA, RHODE ISLAND, SOUTH DAKOTA, TEXAS, WASHINGTON, AND
PROBABLY IN CONNECTICUT AND MAINE, THE EXCEPTION DOES NOT COVER THE
SALE OF GOODS.  KAN. GEN. STAT. ANN., 1949, SEC. 21-953, STATE V.
HAINING, 131 KAN.  853, 293 P. 952 (1930); MASS. GEN. LAWS ANN., 1958,
C. 136, SEC. 6, COMMONWEALTH V. HAS, 122 MASS. 40 (1877); COMMONWEALTH
V. STARR, 144 MASS. 359, 11 N.E. 533 (1887); COMMONWEALTH V. KIRSHEN,
194 MASS. 151, 80 N.E. 2 (1907); VERNON'S MO. STAT. ANN., 1953, SEC.
563.700; N.J. STAT.  ANN., 1953, SEC. 2A:171-4; MCKINNEY'S N.Y. LAWS,
PEN.  LAW SEC. 2144, PEOPLE V. FRIEDMAN, 302 N.Y. 75, 96 N.E.2D 184
(1950), APP. DISM'D FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION, 341
U.S. 907; CF. PEOPLE V. ADLER, 174 APP. DIV. 301, 160 N.Y.S. 539
(1916)(MANUFACTURING ACTIVITIES); N.D. CENTURY CODE, 1960, SEC. 12-21
17; R.I. GEN. LAWS, 1956, SEC. 11-40-4 (SHOPS, MECHANICAL WORK IN
COMPACT PLACES, ETC.); S.D. CODE, 1939, SEC. 13.1710; VERNON'S TEX.
STAT., 1952, PEN CODE, ART. 284; WASH. REV. CODE, 1959, SEC. 9.76.020,
STATE V. GRABINSKI, 33 WASH. 2D 603, 206 P.2D 1022 (1949); CONN. GEN
STAT. REV., 1958, SEC. 53-303; ME. REV. STAT., 1954, C. 134, SEC.  44. 
CF. STATE V. WEISS, 97 MINN. 125, 105 N.W. 1127 (1906).  THE EXEMPTION
IN INDIANA, KENTUCKY, MICHIGAN, NEBRASKA, OHIO, OKLAHOMA, VIRGINIA AND
WEST VIRGINIA DOES EXTEND TO SELLING, BUT IN THE LAST TWO NAMED STATES
AN EXEMPTED PERSON MAY NOT EMPLOY OTHER PERSONS NOT OF HIS BELIEF ON
SUNDAY.  BURNS' IND. STAT. ANN., 1956 REPLACEMENT VOL., SEC. 10-4301;
KY. REV. STAT., 1960, SEC.  436.160, COHEN V. WEBB, 175 KY. 1, 192 S.W.
828 (1917); MICH. STAT. ANN., 1957 REV. VOL., SECS.  18.855, 18.856(1),
BUILDERS ASSN. V. CITY OF DETROIT, 295 MICH. 272, 294 N.W. 677 (1940),
SEMBLE; NEB. REV. STAT., 1956 REISSUED VOL., SEC. 28-940; PAGE'S OHIO
REV. CODE ANN., 1954, SEC.  3773.24; OKLA. STAT. ANN., 1958, TIT. 21,
SEC. 909, KRIEGER V. STATE, 12 OKLA. CR. 566, 160 P. 36 (1916); VA.
CODE, 1960 REPLACEMENT VOL., SEC. 18.1-359; W.VA. CODE ANN., 1955, C.
61, ART. 8, SEC. 18 (6073).  THE MEANING OF THE PROVISION IN ILLINOIS,
ILL. REV. STAT., 1959, C. 38, SEC. 549, IS NOT CLEAR. 

FN104  SEE 101 H.L. DEB.  430 (5TH SER.  1935-1936); 311 H.C. DEB. 
492 (5TH SER.  1935-1936).  ON THIS GROUND SOME STATE COURTS HAVE EVEN
HELD SABBATARIAN EXCEPTIONS INVALID AS DISCRIMINATORY.  CITY OF
SHREVEPORT V. LEVY, 26 LA. ANN. 671 (1874); KISLINGBURY V. TREASURER OF
PLAINFIELD, 10 N.J. MISC. 798, 160 A. 654 (C.P. 1932).  SEE STATE V.
GRABINSKI, 33 WASH. 2D 603, 206 P.2D 1022 (1949), RESERVING THE
QUESTION.  HOWEVER, IN JOHNS V. STATE, 78 IND. 332 (1881), THE
EXEMPTION WAS SUSTAINED.    FN105  SEE VA CODE, 1960 REPLACEMENT VOL.,
SEC. 18.1-359; W.VA CODE ANN., 1955, C. 61, ART. 8, SEC. 18 (6073);
FACTORIES ACT, 1937, 1 EDW.  VIII & 1 GEO. VI, C. 67, SEC. 91. 

FN106  BOTH PENNSYLVANIA AND MASSACHUSETTS HAVE FAIR EMPLOYMENT
PRACTICES ACTS PROHIBITING RELIGIOUS DISCRIMINATION IN HIRING. 
PURDON'S PA. STAT. ANN., 1960 SUPP., TIT. 43, SECS. 951 TO 963; MASS.
GEN. LAWS ANN., 1958, C. 151B, SECS. 1 TO 10. 

FN107  CONNECTICUT, INDIANA, MAINE, MASSACHUSETTS, MICHIGAN,
NEBRASKA, OHIO, TEXAS, VIRGINIA, WEST VIRGINIA.  WISCONSIN'S STATUTE IS
SIMILAR. 

FN108  NEW YORK, NORTH DAKOTA, OKLAHOMA, SOUTH DAKOTA, WASHINGTON. 

FN109  KANSAS, KENTUCKY, MISSOURI. 

FN110  RHODE ISLAND. 

FN111  THIS NEW JERSEY EXCEPTING STATUTE APPEARS TO BE CURRENTLY
INOPERATIVE.  THE STATE'S GENERAL LABOR BAN HAS RECENTLY BEEN HELD
IMPLIEDLY REPEALED BY THE ENACTMENT OF A SUNDAY RETAIL SALES
PROHIBITION, TWO GUYS FROM HARRISON, INC., V. FURMAN, 32 N.J. 199, 160
A.2D 265 (1960), AND THE EXCEPTING PROVISION, BY ITS TERMS, DOES NOT
EXTEND TO SUNDAY SELLING BY SABBATARIANS. 

FN112  AND SEE IN RE BERMAN, 344 MICH. 598, 75 N.W.2D 8 (1956),
DETERMINING THE POSTURE UNDER A CONSCIENTIOUS-SABBATARIAN EXCEPTION OF
A SABBATARIAN OWNER OF THREE STORES WHO OPERATED ONE HIMSELF, CLOSING
ON SATURDAYS AND OPENING ON SUNDAYS, AND THE OTHER TWO THROUGH AGENTS,
OPENING SATURDAYS AND CLOSING SUNDAYS. 

FN113  14 GEO. VI, C. 28. 

FN114  26 GEO. V & 1 EDW.  VIII, C. 53. 

FN115  PRINCIPALLY THE JEWISH EXEMPTION IN THE HAIRDRESSERS' AND
BARBERS' SHOPS (SUNDAY CLOSING) ACT, 1930, 20 & 21 GEO. V, C. 35, SEC.
3.  SEE 101 H.L. DEB.  439, 442 (5TH SER.  1935-1936); 311 H.C. DEB. 
502 (5TH SER.  1935-1936).  THE 1930 ACT WAS REPEALED BY THE SHOPS ACT,
1950, 14 GEO. VI, C. 28, EIGHTH SCHEDULE, ALTHOUGH SEC. 67 OF THE
LATTER ACT CONTINUES SIMILAR PROVISIONS FOR SCOTLAND.  THE PROBLEM OF
SPECIAL SUNDAY REGULATION FOR THE JEWISH POPULATION HAD INVOLVED
PARLIAMENT AT LEAST SINCE THE TURN OF THE CENTURY.  SECTIONS 47, 48 OF
THE FACTORY AND WORKSHOP ACT, 1901, 1 EDW.  VII, C. 22, PERMITTED
JEWISH EMPLOYERS CERTAIN EXEMPTIONS FROM THAT ACT'S PROHIBITION OF
SUNDAY EMPLOYMENT OF WOMEN AND CHILDREN.  THE TERMS OF THE EXEMPTION
ARE ALTERED BY THE FACTORIES ACT, 1937, 1 EDW.  VIII & 1 GEO. VI, C.
67, SEC. 91.  SEE ALSO REPORT FROM THE SELECT COMMITTEE OF THE HOUSE OF
LORDS ON THE SUNDAY CLOSING (SHOPS) BILL (H.L.)(1905), 71-83, 142-147,
153-157. 

FN116  AMONG THESE WAS A PROVISION PERMITTING ANY SHOPKEEPER IN
LONDON TO ELECT TO CLOSE ON SATURDAYS INSTEAD OF SUNDAYS.  SEE 311 H.C.
DEB.  447-461 (5TH SER.  1935-1936).  THE JEWISH EXEMPTION PROVISIONS
OF SEC. 7 WERE THE MOST STRENUOUSLY DEBATED PROVISIONS OF THE SHOPS
(SUNDAY TRADING RESTRICTION) ACT.  SEE 308 H.C. DEB.  2188-2192, 2202
2203, 2217 (5TH SER.  1935-1936); 101 H.L. DEB.  263, 270, 427-434 (5TH
SER.  1935-1936); 311 H.C. DEB.  447-461, 478-507 (5TH SER.  1935
1936).  THE RECOGNIZED INADEQUACY OF THE EXEMPTION WAS IN PART
RESPONSIBLE FOR THE ACT'S SPECIAL PROVISIONS (SEC. 8) FOR THE LONDON
AREA, WHERE THE BULK OF THE ENGLISH JEWISH TRADING POPULATION DOES
BUSINESS.   ID., AT 2087, 2090-2091, 2103-2104. 

FN117  SEE THE STATUTORY FORM PRESCRIBED BY THE SHOPS REGULATIONS,
1937, S.R.&O., 1937, NO. 271, SCHEDULES IVA) AND IVB). 

FN118  THE CONSTITUTION OF THE TRIBUNALS FOR JEWS AND FOR SEVENTH DAY
ADVENTISTS (SEE NOTE 119, INFRA) AND THE PROCEDURES OF THE TRIBUNALS
ARE PRESCRIBED BY THE SHOPS REGULATIONS, 1937, S.R.&O., 1937, NO. 271,
REG. 4, AND THE SHOPS (PROCEDURE FOR JEWISH TRIBUNALS REGULATIONS,
1937, S.R.&O., 1937, NO. 1038. 

FN119  OTHER PROVISIONS INDICATE THE INTRICATE PROBLEMS OF
ADMINISTRATION WHICH THE EXEMPTION RAISES.  SECTION 53(3) PROVIDES THAT
IN THE CASE OF SHOPS OCCUPIED BY A PARTNERSHIP OR COMPANY THE
APPLICATION OF THE EXEMPTION IS DETERMINED BY THE RELIGION OF THE
MAJORITY OF THE PARTNERS OR DIRECTORS.  SECTION (5) PROHIBITS THE
OCCUPIER OF A SHOP REGISTERED FOR THE EXEMPTION FROM KEEPING OPEN ANY
OTHER SHOP ON SATURDAY, AND PROHIBITS ANY PERSON WHO HAS MADE A
STATUTORY DECLARATION OF CONSCIENTIOUS OBJECTION FOR PURPOSES OF
REGISTRATION FROM WORKING IN, OR EMPLOYING ANY OTHER PERSON IN, OR
BEING CONCERNED IN THE CONTROL OF A FIRM WHICH EMPLOYS ANY OTHER PERSON
IN, A SHOP OPEN ON SATURDAY.  COMPARE IN RE BERMAN, NOTE 112, SUPRA.
SUBSECTION (9) PERMITS CANCELLATION OF THE REGISTRATION OF ANY SHOP AT
THE APPLICATION OF THE OCCUPIER, BUT PROVIDES THAT REGISTRATION SHALL
NOT BE CANCELLED WITHIN TWELVE MONTHS OF THE DATE UPON WHICH
APPLICATION FOR REGISTRATION WAS MADE; AND SUBSECTION (10) PRECLUDES
THE SAME OCCUPIER'S AGAIN REGISTERING THE SHOP FOR EXEMPTION.  SECTION
53(12) MAKES THE EXCEPTION PROVISIONS APPLICABLE AS WELL TO MEMBERS OF
ANY RELIGIOUS BODY REGULARLY OBSERVING THE JEWISH SABBATH AS TO JEWS,
AND PROVIDES THAT FOR SUCH PERSONS THE FUNCTION SERVED IN THE CASE OF
JEWS BY THE LONDON COMMITTEE OF DEPUTIES OF THE BRITISH JEWS SHALL BE
SERVED BY "SUCH BODY AS APPEARS TO THE SECRETARY OF STATE TO REPRESENT
SUCH PERSONS." 

FN120  FROLICKSTEIN V. MAYOR OF MOBILE, 40 ALA. 725 (1867); SCALES V.
STATE, 47 ARK. 476 (1886); STATE V. HAINING, 131 KAN. 853, 293 P. 952
(1930); COMMONWEALTH V. HAS, 122 MASS. 40 (1877); COMMONWEALTH V.
CHERNOCK, 336 MASS. 384, 145 N.E.2D 920 (1957); STATE V. WEISS, 97
MINN. 125, 105 N.W. 1127 (1906); KOMEN V. CITY OF ST. LOUIS, 316 MO. 9,
289 S.W. 838 (1926)(SUBSEQUENTLY OVERRULED ON ANOTHER POINT); STATE V.
FASS, 62 N.J. SUPER.  265, 162 A.2D 608 (COUNTY CT. 1960); PEOPLE V.
FRIEDMAN, 302 N.Y. 75, 96 N.E.2D 184 (1950), APP. DISM'D FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION, 341 U.S. 907; SILVERBERG BROS. V.
DOUGLASS, 62 MISC. 340, 114 N.Y.S.  824 (SUP. CT. 1909); COMMONWEALTH
V. WOLF, 3 S.&R. 48 (PA. 1817); SPECHT V. COMMONWEALTH, 8 PA. 312
(1848); CITY COUNCIL V. BENJAMIN, 2 STROB.  L. 508 (S.C. 1848); XEPAPAS
V. RICHARDSON, 149 S.C. 52, 146 S.E. 686 (1929), SEMBLE; STATE V.
BERGFELDT, 41 WASH. 234, 83 P. 177 (1905), WRIT OF ERROR DISM'D, 210
U.S. 438 (PROHIBITING BARBERING).  AND SEE STATE EX REL.  WALKER V.
JUDGE, 39 LA. ANN. 132, 141, 1 SO. 437, 444 (1887); CF. EX PARTE
SUNDSTROM, 25 TEX.  APP. 133 (1888). 

FN121  CONSIDER MR. LOFTUS' COMMENTS ON THE PROPOSED SHOPS (SUNDAY
TRADING RESTRICTION) BILL BEFORE THE HOUSE OF COMMONS IN 1936:  "DURING
THE LAST 20 YEARS THERE HAS BEEN A VERY GREAT CHANGE IN THE HABITS OF
OUR PEOPLE - A CHANGE FOR THE BETTER.  VAST MASSES OF OUR PEOPLE, IN
FACT, LITERALLY MILLIONS, GO OUT INTO THE COUNTRYSIDE ON FINE SUNDAY
AFTERNOONS IN THE SUMMER, AND THAT IS GOOD FOR THEIR HEALTH; IT IS GOOD
FOR THE MIND AS WELL AS THE BODY THAT THEY SHOULD DO SO.  GOING INTO
THE COUNTRY  ...  THEY HAVE BEEN ACCUSTOMED TO CERTAIN FACILITIES IN
THE WAY OF OBTAINING REFRESHMENT, FRESH FRUIT, FLOWERS AND VEGETABLES
TO BRING HOME, AND IT WOULD BE REGRETTED, PARTICULARLY BY THE WORKING
CLASSES, IF THERE WAS ANY INTERFERENCE BY LEGISLATION THAT WOULD STOP
THOSE FACILITIES OR CHECK THE TENDENCY OF OUR PEOPLE TO GO INTO THE
COUNTRY AND TO TAKE ADVANTAGE OF THE AMENITIES OF THE COUNTRYSIDE  ...
. 

"  ...  THE FIRST PRINCIPLE IS TO FRAME SUCH EXEMPTIONS AS WILL NOT
UNDULY INTERFERE WITH THE ORDINARY HEALTH AND HABITS OF OUR PEOPLE  ...
."  308 H.C. DEB.  2159 (5TH SER.  1935-1936). 

FN122  ID., AT 2200-2201. 

FN123  THE STATUTE 29 CHARLES II, C. 7, PUNISHED WORLDLY LABOR OF
ONE'S ORDINARY CALLING BY A FORFEITURE OF FIVE SHILLINGS, PUNISHED
TRAVELING BY DROVERS OR BUTCHERS BY A FORFEITURE OF TWENTY SHILLINGS,
AND PUNISHED THE EXHIBITION OF MERCHANDISE FOR SALE BY FORFEITURE OF
THE GOODS.  EARLY AMERICAN COLONIAL LEGISLATION SIMILARLY PROVIDED
GREATER FINES FOR ENGAGING IN SOME THAN IN OTHER SUNDAY ACTIVITY.  SEE,
E.G., DELAWARE, 1740; MASSACHUSETTS, 1692; NEW HAMPSHIRE, 1700; NEW
JERSEY, 1798. 

FN124  THE STATUTE 29 CHARLES II, C. 7, ITSELF CONTAINED SEVERAL
EXCEPTIONS, AND SUBSEQUENT STATUTES ADDED OTHERS.  SEE NOTES 15, 18,
SUPRA.  THE ORIGINAL SUNDAY EDICT OF CONSTANTINE IN 321 A.D. HAS
EXEMPTED FARM LABOR. 

FN125  THE STATUTE 27 HENRY VI, C. 5, HAD EXCEPTED "NECESSARY
VICTUAL" FROM ITS PROHIBITION OF SALES AT FAIRS AND MARKETS; 5 & 6
EDW.  VI, C. 3, HAD CONTAINED A BROAD EXCEPTION FOR LABOR AT HARVEST OR
AT ANY OTHER TIME IN THE YEAR WHEN NECESSITY REQUIRED. 

FN126  SEE, E.G., JEFFERSON'S BILL QUOTED IN TEXT AT NOTE 68, SUPRA.
OTHER LAWS MADE SPECIFIC EXCEPTIONS AS WELL:  THE PENNSYLVANIA STATUTE
OF 1705, FOR EXAMPLE, EXEMPTED NOT ONLY WORKS OF NECESSITY AND CHARITY
BUT THE DRESSING OF VICTUALS IN COOKSHOPS, WATERMEN LANDING PASSENGERS,
BUTCHERS SLAUGHTERING AND SELLING MEAT OR FISHERMAN SELLING FISH IN THE
MORNING IN SUMMER, AND THE SALE OF MILK BEFORE 9 A.M. AND AFTER 5 P.M. 

FN127  WHERE STATUTES BAN THE KEEPING OPEN OF PLACES OF BUSINESS AS
WELL AS LABORING, THE EXCEPTION IS FREQUENTLY WORDED TO APPLY ONLY TO
THE LATTER.  SEE COMMONWEALTH V. DEXTRA, 143 MASS. 28 (1886). 

FN128  SEE WILLIAMS V. STATE, 167 GA. 160, 144 S.E. 745 (1928)(SALE
OF GASOLINE IS NECESSITY); JACOBS V. CLARK, 112 VT. 484, 28 A.2D 369
(1942)(SAME IS NOT NECESSITY); COMMONWEALTH V. LOUISVILLE & NASHVILLE
R. CO., 80 KY. 291 (1882)(OPERATING RAILROAD IS NECESSITY); CF.
PHILADELPHIA, W.&B.R. CO. V. LEHMAN, 56 MD. 209 (1881); SPARHAWK V.
UNION PASSENGER R. CO., 54 PA. 401 (1867)(SAME IS NOT NECESSITY); STATE
V. NEEDHAM, 134 KAN. 155, 4 P.2D 464 (1931)(DISTRIBUTION OF NEWSPAPERS
IS NECESSITY); COMMONWEALTH V. MATTHEWS, 152 PA. 166, 25 A. 548
(1893)(SAME IS NOT NECESSITY); AUGUSTA & S.R. CO. V. RENZ, 55 GA. 126
(1875)(OPERATING STREETCAR IS NECESSITY); JOHNSTON V. COMMONWEALTH, 22
PA. 102 (1853)(OPERATING BUS IS NOT NECESSITY); TURNER V. STATE, 67
IND. 595 (1879)(CUTTING RIPE WHEAT IS NECESSITY); STATE V. GOFF, 20
ARK. 289 (1859)(SAME IS NOT NECESSITY); WILKINSON V. STATE, 59 IND. 416
(1877)(HAULING RIPE WATERMELONS IS NECESSITY); COMMONWEALTH V. WHITE,
190 MASS. 578, 77 N.E. 636 (1906)(PICKING RIPE CRANBERRIES IS NOT
NECESSITY); RICH V. COMMONWEALTH, 198 VA. 445, 94 S.E.2D 549
(1956)(WHERE EVIDENCE OF WIDESPREAD RETAIL SALE OF GROCERIES IS NOT
REBUTTED, JURY CANNOT FIND THAT SALE OF GROCERIES IS NOT NECESSITY);
STATE V. JAMES, 81 S.C. 197, 62 S.E. 214 (1908)(SALE OF ICE AND MEAT IS
NOT NECESSITY); STATE V. CAROLOGOS, 101 VT. 300, 143 A. 284 (1928)(SALE
OF CONFECTIONERY IS NOT NECESSITY AS MATTER OF LAW, ALTHOUGH JURY COULD
SO FIND); CF. STATE EX REL. SMITH V. WERTZ, 91 W.VA. 622, 114 S.E. 242
(1922); THOMPSON V. CITY OF ATLANTA, 178 GA. 281, 172 S.E. 915 (1934),
AND ROSENBAUM V. STATE, 131 ARK. 251, 199 S.W. 388 (1917)(OPERATION OF
MOTION PICTURE THEATER IS NOT NECESSITY); WILLIAMS V. COMMONWEALTH, 179
VA. 741, 750, 20 S.E.2D 493, 496 (1942)(CONCURRING OPINION)(OPERATION
OF MOTION PICTURE THEATER IS NECESSITY); MCGATRICK V. WASON, 4 OHIO ST.
566 (1855)(LOADING SHIP WITH NAVIGATION-CLOSING WEATHER IMPENDING IS
NECESSITY); COMMONWEALTH V. SAMPSON, 97 MASS. 407 (1867)(GATHERING
SEAWEED WHICH TIDE THREATENS TO FLOAT AWAY IS NOT NECESSITY);
HENNERSDORF V. STATE, 25 TEX. APP. 597, 8 S.W. 926 (1888)(MANUFACTURING
ICE IS NECESSITY); STATE V. MCBEE, 52 W.VA. 257, 43 S.E. 121
(1902)(PUMPING OIL IS NOT NECESSITY AS MATTER OF LAW, ALTHOUGH JURY
COULD SO FIND); STATE V. OHMER, 34 MO. APP. 115 (1889)(RETAIL SALE OF
TOBACCO IS NOT NECESSITY); FRANCISCO V. COMMONWEALTH, 180 VA. 371, 23
S.E.2D 234 (1942)(JURY MAY FIND RETAIL SALE OF BEER NECESSITY). 

FN129  IN PETIT V. MINNESOTA, 177 U.S. 164, THIS COURT SUSTAINED
AGAINST A CLAIM OF ARBITRARY CLASSIFICATION A STATUTE WHICH IN EXPRESS
TERMS PROVIDED THAT ITS EXCEPTION FOR WORKS OF NECESSITY SHOULD NOT
INCLUDE BARBERING.  IN OTHER JURISDICTIONS THE SAME RESULT WAS REACHED
BY JUDICIAL INTERPRETATION OF THE "NECESSITY" CLAUSE.  STATE V. LINSIG,
178 IOWA 484, 159 N.W. 995 (1916); EX PARTE KENNEDY, 42 TEX. CR. R.
148, 58 S.W. 129 (1900); STATE V. SOPHER, 25 UTAH 318, 71 P. 482
(1903).  CF. COMMONWEALTH V. DEXTRA, 143 MASS. 28, 8 N.E. 756 (1886);
STARK V. BACKUS, 140 WIS. 557, 123 N.W. 98 (1909).  STATUTES
PROHIBITING SUNDAY BARBERING WERE ENACTED IN A NUMBER OF STATES.  THESE
WERE VOIDED AS DISCRIMINATORY IN EX PARTE JENTZSCH, 112 CAL. 468, 44 P.
803 (1896); EDEN V. PEOPLE, 161 ILL. 296, 43 N.E. 1108 (1896);
ARMSTRONG V. STATE, 170 IND. 188, 84 N.E. 3 (1908); STATE V. GRANNEMAN,
132 MO. 326, 33 S.W. 784 (1896); CF. RAGIO V. STATE, 86 TENN. 272, 6
S.W. 401 (1888), BUT HAVE BEEN GENERALLY SUSTAINED.  MCCLELLAND V. CITY
OF DENVER, 36 COLO. 486, 86 P. 126 (1906); STATE V. MURRAY, 104 NEB.
51, 175 N.W. 666 (1919); PEOPLE V. BELLET, 99 MICH. 151, 57 N.W. 1094
(1894); PEOPLE V. HAVNOR, 149 N.Y. 195, 43 N.E. 541 (1896), WRIT OF
ERROR DISM'D, 170 U.S. 408; EX PARTE JOHNSON, 77 OKLA. CR. 360, 141
P.2D 599 (1943); EX PARTE NORTHRUP, 41 ORE.  489, 69 P. 445 (1902);
BREYER V. STATE, 102 TENN. 103, 50 S.W. 769 (1899); STATE V. BERGFELDT,
41 WASH. 234, 83 P. 177 (1905), OVERRULING CITY OF TACOMA V. KRECH, 15
WASH. 296, 46 P. 255 (1896). 

FN130  ONE MAY TRACE IN THESE EXCEPTIONS THE EVOLVING HABITS OF LIFE
OF THE PEOPLE.  COMPARE STATE V. HOGREIVER, 152 IND. 652, 53 N.E. 921
(1899), SUSTAINING A STATUTE SPECIFICALLY PROHIBITING SUNDAY BASEBALL,
WITH CARR V. STATE, 175 IND. 241, 93 N.E. 1071 (1911), SUSTAINING A
STATUTE EXCEPTING BASEBALL FROM THE GENERAL SUNDAY PROHIBITION. 

FN131  THE SHOPS ACT, 1950, 14 GEO, VI, C. 28, EXCEPTS FROM THE
GENERAL SUNDAY BAN THE KEEPING OPEN OF A SHOP TO SELL LIQUOR, MEALS OR
REFRESHMENTS (WHETHER OR NOT FOR CONSUMPTION ON THE PREMISES, BUT
EXCLUDING FRIED FISH AND CHIPS SOLD AT A FISH AND CHIP SHOP), NEWLY
COOKED PROVISIONS AND COOKED TRIPE, TABLE WATERS, CHOCOLATES, SWEETS,
SUGAR CONFECTIONERY AND ICE CREAM, FLOWERS, FRUIT AND VEGETABLES (OTHER
THAN TINNED), MILK AND CREAM (OTHER THAN TINNED), MEDICINES AND MEDICAL
AND SURGICAL APPLIANCES (BY CERTAIN REGISTERED SHOPS), AIRCRAFT, MOTOR
OR CYCLE SUPPLIES OR ACCESSORIES, TOBACCO AND SMOKERS' REQUISITES,
NEWSPAPERS, PERIODICALS AND MAGAZINES, BOOKS AND STATIONERY AT RAIL AND
BUS TERMINALS AND AERODROMES, GUIDE BOOKS, PHOTOGRAPHS, REPRODUCTIONS,
PHOTOGRAPHIC FILMS AND PLATES AND SOUVENIRS AT PUBLIC OR SPECIALLY
APPROVED GALLERIES, MUSEUMS, ETC., PASSPORT PHOTOS, REQUISITES FOR
GAMES OR SPORTS SOLD ON THE PREMISES WHERE THE SPORT IS PLAYED, FODDER
FOR HORSES, MULES, ETC.  POST OFFICE AND FUNERAL BUSINESS IS
PERMITTED.  (SEC. 47 & FIFTH SCHEDULE.)  LOCAL AUTHORITY MAY PERMIT THE
OPENING OF SHOPS BEFORE 10 A.M. FOR THE SALE OF BREAD AND FLOUR,
CONFECTIONERY, FISH, GROCERIES AND GROCER'S PRODUCTS.  (SEC. 48 & SIXTH
SCHEDULE.)  LOCAL AUTHORITY MAY PROHIBIT SALES OF MEALS AND
REFRESHMENTS FOR CONSUMPTION OFF THE PREMISES (EXEMPTED BY THE FIFTH
SCHEDULE) IN THE CASE OF CLASSES OF SHOPS IN WHICH SALES FOR ON-THE
PREMISES CONSUMPTION DO NOT CONSTITUTE A SUBSTANTIAL PART OF THE
BUSINESS CARRIED ON.  (SEC. 49.)  WHERE THE AREA OF A LOCAL AUTHORITY
IS A DISTRICT FREQUENTED AS A HOLIDAY RESORT DURING CERTAIN SEASONS OF
THE YEAR, THE LOCAL AUTHORITY MAY PROVIDE BY ORDER THAT SHOPS OF SUCH
CLASSES AS IT DESIGNATES MAY OPEN ON SPECIFIED SUNDAYS (NOT TO EXCEED
EIGHTEEN PER YEAR) FOR THE SALE OF BATHING AND FISHING ARTICLES,
PHOTOGRAPHIC REQUISITES, TOYS, SOUVENIRS AND FANCY GOODS, BOOKS,
STATIONERY, PHOTOGRAPHS, REPRODUCTIONS AND POSTCARDS, AND FOOD.  (SEC.
51 & SEVENTH SCHEDULE.)  SPECIAL PROVISIONS APPLICABLE TO THE LONDON
AREA PERMIT LOCAL COUNCILS TO AUTHORIZE THE OPENING BEFORE 2 P.M. OF
SHOPS WHERE STREET MARKETS OR (IN SOME REGIONS) SHOPS WERE CUSTOMARILY
OPENED ON SUNDAY PRIOR TO THE DATE OF THE ORIGINAL ACT, 1936, WHERE, IN
THE LATTER CASE, THE COUNCILS FIND THAT "HAVING REGARD TO THE CHARACTER
AND HABITS OF THE POPULATION IN THE DISTRICT," SUNDAY CLOSING WOULD
CAUSE UNDUE HARDSHIP; BUT IF SUCH AN EXEMPTING ORDER IS MADE, IT MUST
FIX SOME WEEKDAY CLOSING DAY FOR THESE SHOPS, WHICH MAY DIFFER FOR
DIFFERENT CLASSES OF SHOPS.  (SEC. 54.)  IN THE CASE OF THESE LOCAL
EXEMPTING ORDERS, PROVISION IS MADE FOR A PLEBISCITE AMONG THE
SHOPKEEPERS AFFECTED.  (SECS. 52, 54(1), PAR. 2.)  THE ACT FURTHER
EXCEPTS THE SALE AND DELIVERY OF STORES OR NECESSARIES TO ARRIVING OR
DEPARTING SHIPS AND AIRCRAFT AND OF GOODS TO PRIVATE CLUBS FOR CLUB
PURPOSES, THE COOKING BEFORE 1:30 P.M. OF FOOD BROUGHT BY CUSTOMERS TO
BE COOKED FOR CONSUMPTION THAT DAY, AND ATTENDANCE AS A BARBER UPON
INVALIDS OR UPON RESIDENTS OF HOTELS OR CLUBS THEREIN.  (SEC. 56.) 
THIS SUMMARY DIGEST CAN SCARCELY SUGGEST THE COMPLEXITY OF THE TEXT. 

FN132  311 H.C. DEB.  465 (5TH SER.  1935-1936). 

FN133  ELLIOTT V. STATE, 29 ARIZ. 389, 242 P. 340 (1926)(BANNING
ENUMERATED BUSINESSES; COURT DISTINGUISHES GENERAL CLOSING STATUTE WITH
EXCEPTIONS); BOCCI & SONS CO. V. TOWN OF LAWNDALE, 208 CAL. 720, 284 P.
654 (1930)(EXCEPTIONS FOR CLASSES OF BUSINESSES); JUSTESEN'S FOOD
STORES, INC., V. CITY OF TULARE, 12 CAL. 2D 324, 84 P.2D 140
(1938)(CLOSING FOOD STORES; EXCEPTIONS FOR CLASSES OF BUSINESSES);
DEESE V. CITY OF LODI, 21 CAL. APP. 2D 631, 69 P.2D 1005
(1937)(EXCEPTIONS FOR CLASSES OF BUSINESSES); ALLEN V. CITY OF COLORADO
SPRINGS, 101 COLO. 498, 75 P.2D 141 (1937)(EXCEPTIONS FOR CLASSES OF
BUSINESSES AND COMMODITIES); HENDERSON V. ANTONACCI, 62 SO. 2D 5 (FLA.
1952)(EXCEPTIONS FOR CLASSES OF BUSINESSES AND COMMODITIES); KELLY V.
BLACKBURN, 95 SO. 2D 260 (FLA. 1957)(EXCEPTIONS FOR NEWSPAPERS AND
CINEMA); CITY OF MT. VERNON V. JULIAN, 369 ILL. 447, 17 N.E.2D 52
(1938)(EXCEPTIONS FOR CLASSES OF BUSINESSES); AUTO-RITE SUPPLY CO. V.
MAYOR OF WOODBRIDGE, 41 N.J. SUPER.  303, 124 A.2D 612 (1956); AFF'D ON
OTHER GROUNDS, 25 N.J. 188, 135 A.2D 515 (1957)(BANNING SALE OF
ENUMERATED CLASSES OF COMMODITIES); CHAN SING V. ASTORIA, 79 ORE.  411,
155 P. 378 (1916)(CLOSING SHOPS SELLING ENUMERATED CLASSES OF
COMMODITIES); BROADBENT V. GIBSON, 105 UTAH 53, 140 P.2D 939
(1943)(EXCEPTIONS FOR CLASSES OF BUSINESSES, SOME RESTRICTED TO SALE OF
SPECIFIED COMMODITIES); GRONLUND V. SALT LAKE CITY, 113 UTAH 284, 194
P.2D 464 (1948)(SALES BAN WITH EXCEPTIONS FOR CLASSES OF COMMODITIES;
COURT DISTINGUISHES STATUTORY SCHEME BANNING ALL LABOR AND SALES WITH
EXCEPTIONS).  CF. STATE V. TRAHAN, 214 LA. 100, 36 SO. 2D 652 (1948),
AND ARRIGO V. CITY OF LINCOLN, 154 NEB. 537, 48 N.W.2D 643
(1951)(EXCEPTIONS FOR CLASSES OF BUSINESSES), HOLDING UNCONSTITUTIONAL
SUNDAY STATUTES IN PARTICULAR APPLICATIONS DEEMED DISCRIMINATORY. 

FN134  CITY OF DENVER V. BACH, 26 COLO. 530, 58 P. 1089
(1899)(CLOSING CLASSES OF BUSINESSES); CITY OF SPRINGFIELD V. SMITH,
322 MO. 1129, 19 S.W.2D 1 (1929)(BANNING ENUMERATED ENTERTAINMENTS); EX
PARTE FERGUSON, 62 OKLA. CR. 145, 70 P.2D 1094 (1937)(BANNING SALE OF
ENUMERATED COMMODITIES)(ALTERNATIVE HOLDING); EX PARTE HODGES, 65 OKLA.
CR. 69, 83 P.2D 201 (1938)(EXCEPTIONS FOR CLASSES OF
BUSINESSES)(ALTERNATIVE HOLDING).  CF. MCKAIG V. KANSAS CITY, 363 MO.
1033, 256 S.W.2D 815 (1953)(AUTOMOBILE SALES), DISAPPROVING CITY OF ST.
LOUIS V. DELASSUS, 205 MO. 578, 104 S.W. 12 (1907), AND KOMEN V. CITY
OF ST. LOUIS, 316 MO. 9, 289 S.W. 838 (1926). 

FN135  LANE V. MCFADYEN, 259 ALA. 205, 66 SO. 2D 83 (1953)(BANNING
MERCHANDISING WITH EXCEPTIONS FOR CLASSES OF BUSINESSES); TAYLOR V.
CITY OF PINE BLUFF, 226 ARK. 309, 289 S.W.2D 679 (1956)(ORDINANCE
APPLIED ONLY TO SINGLE CLASS OF BUSINESS); HICKINBOTHAM V. WILLIAMS,
227 ARK.  126, 296 S.W.2D 897 (1956)(BANNING ENUMERATED BUSINESSES); EX
PARTE KOSER, 60 CAL. 177 (1882)(EXCEPTIONS FOR CLASSES OF BUSINESSES);
IN RE SUMIDA, 177 CAL. 388, 170 P. 823 (1918)(EXCEPTIONS FOR CLASSES OF
BUSINESSES); STATE V. HURLIMAN, 143 CONN. 502, 123 A.2D 767
(1956)(EXCEPTIONS FOR CLASSES OF SERVICES, ACTIVITIES AND COMMODITIES,
THE LATTER TO BE SOLD BY PERSONS WHO SELL THEM ON WEEKDAYS); STATE V.
SHUSTER, 145 CONN. 554, 145 A.2D 196 (1958)(SAME); THEISEN V. MCDAVID,
34 FLA. 440, 16 SO. 321 (1894)(EXCEPTING SALES OF CLASSES OF
COMMODITIES); STATE V. DOLAN, 13 IDAHO 693, 92 P. 995 (1907)(EXCEPTIONS
FOR CLASSES OF SERVICES AND COMMODITIES); STATE V. CRANSTON, 59 IDAHO
561, 85 P.2D 682 (1938)(EXCEPTING FOR CLASSES OF BUSINESSES, SERVICES
AND COMMODITIES); HUMPHREY CHEVROLET, INC., V. CITY OF EVANSTON, 7 ILL.
2D 402, 131 N.E.2D 70 (1955)(EXCEPTIONS FOR CLASSES OF COMMODITIES);
NESS V. SUPERVISORS OF ELECTIONS, 162 MD. 529, 160 A. 8
(1932)(UNSPECIFIED); PEOPLE V. DEROSE, 230 MICH. 180, 203 N.W. 95
(1925)(BANNING CLASSES OF BUSINESSES AND SALES OF CLASSES OF
COMMODITIES); PEOPLE V. KROTKIEWICZ, 286 MICH. 644, 282 N.W. 852
(1938)(BANNING SALES OF CLASSES OF COMMODITIES); PEOPLE'S APPLIANCE,
INC., V. CITY OF FLINT, 358 MICH. 34, 99 N.W.2D 522 (1959)(BANNING
BUSINESSES SELLING CLASSES OF COMMODITIES); STATE EX REL. HOFFMAN V.
JUSTUS, 91 MINN. 447, 98 N.W. 325 (1904)(EXCEPTIONS FOR CLASSES OF
COMMODITIES); LIBERMAN V. STATE, 26 NEB. 464, 42 N.W. 419
(1889)(EXCEPTIONS FOR CLASSES OF BUSINESSES AND COMMODITIES); IN RE
CALDWELL, 82 NEB. 544, 118 N.W. 133 (1908)("COMMON" LABOR BANNED);
STATE V. SOMBERG, 113 NEB. 761, 204 N.W. 788 (1925)(BANNING CLASSES OF
BUSINESSES AND SALES OF CLASSES OF COMMODITIES); CITY OF ELIZABETH V.
WINDSOR-FIFTH AVENUE, INC., 31 N.J.  SUPER.  187, 106 A.2D 9
(1954)(BANNING BUSINESSES SELLING CLASSES OF COMMODITIES); MASTERS
JERSEY, INC., V. MAYOR OF PARAMUS, 32 N.J. 296, 160 A.2D 841
(1960)(EXCEPTIONS FOR CLASSES OF COMMODITIES); RICHMAN V. BOARD OF
COMM'RS, 122 N.J.L. 180, 4 A.2D 501 (1939)(BANNING BUSINESSES SELLING A
CLASS OF COMMODITIES, SEMBLE); PEOPLE V. FRIEDMAN, 302 N.Y. 75, 96
N.E.2D 184 (1950), APP. DISM'D FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION, 341 U.S. 907 (EXCEPTIONS FOR CLASSES OF BUSINESSES,
COMMODITIES, OTHER ACTIVITIES); STATE V. MEDLIN, 170 N.C. 682, 86 S.E.
597 (1915)(EXCEPTION FOR A CLASS OF BUSINESS, RESTRICTED TO SALE OF
SPECIFIED CLASSES OF COMMODITIES); STATE V. TRANTHAM, 230 N.C. 641, 55
S.E.2D 198 (1949)(EXCEPTIONS FOR CLASSES OF COMMODITIES TO BE SOLD BY
CLASSES OF BUSINESSES); STATE V. MCGEE, 237 N.C. 633, 75 S.E.2D 783
(1953), APP. DISM'D FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION, 346
U.S. 802 (EXCEPTIONS FOR CLASSES OF BUSINESSES, COMMODITIES, OTHER
ACTIVITIES); STATE V. TOWERY, 239 N.C. 274, 79 S.E.2D 513 (1954), APP.
DISM'D FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION, 347 U.S. 925
(EXCEPTIONS FOR CLASSES OF BUSINESSES, SOME RESTRICTED TO SALES OF
SPECIFIED CLASSES OF COMMODITIES); STATE V. DIAMOND, 56 N.D. 854, 219
N.W. 831 (1928)(EXCEPTIONS FOR CLASSES OF COMMODITIES); STATE V. HAASE,
97 OHIO APP. 377, 116 N.E.2D 224 (1953)(EXCEPTIONS FOR CLASSES OF
RECREATIONAL ACTIVITIES); STATE V. KIDD, 167 OHIO ST. 521, 150 N.E.2D
413 (1958), APP.  DISM'D FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION,
358 U.S. 132 (EXCEPTIONS FOR CLASSES OF RECREATIONAL ACTIVITIES);
COMMONWEALTH V. BAUDER, 188 PA. SUPER.  424, 145 A.2D 915
(1958)(EXCEPTIONS FOR CLASSES OF RECREATIONAL ACTIVITIES); BOTHWELL V.
YORK CITY, 291 PA. 363, 140 A. 130 (1927)(BANNING CLASSES OF
RECREATIONAL ACTIVITIES); MAYOR OF NASHVILLE V. LINCK, 80 TENN. 499
(1883)(EXCEPTIONS FOR SALES OF CLASSES OF COMMODITIES BY CLASSES OF
BUSINESSES); KIRK V. OLGIATI, 203 TENN. 1, 308 S.W.2D 471
(1957)(BANNING CLASSES OF BUSINESS); EX PARTE SUNDSTROM, 25 TEX. APP.
133, 8 S.W. 207 (1888)(EXCEPTIONS FOR CLASSES OF COMMODITIES); SEARCY
V. STATE, 40 TEX. CR. R. 460, 51 S.W. 1119 (1899)(EXCEPTIONS FOR
CLASSES OF COMMODITIES); SAYEG V. STATE, 114 TEX. CR. R. 153, 25 S.W.2D
865 (1930)(EXCEPTIONS FOR CLASSES OF COMMODITIES); CITY OF SEATTLE V.
GERVASI, 144 WASH. 429, 258 P. 328 (1927)(EXCEPTIONS FOR CLASSES OF
COMMODITIES); STATE V. GRABINSKI, 33 WASH. 2D 603, 206 P.2D 1022
(1949)(EXCEPTIONS FOR CLASSES OF COMMODITIES).  SEE ALSO ROSENBAUM V.
CITY & COUNTY OF DENVER, 102 COLO. 530, 81 P.2D 760 (1938)(BANNING
AUTOMOBILE TRADING); MOSKO V. DUNBAR, 135 COLO. 172, 309 P.2D
(1957)(BANNING AUTOMOBILE TRADING); GILLOOLEY V. VAUGHAN, 92 FLA. 943,
110 SO. 653 (1926)(BANNING CLASSES OF AMUSEMENTS); STEWART MOTOR CO. V.
CITY OF OMAHA, 120 NEB. 776, 235 N.W. 382 (1931)(BANNING AUTOMOBILE
TRADING); ABC LIQUIDATORS, INC., V. KANSAS CITY, 322 S.W.2D 876 (MO.
1959)(BANNING AUCTIONS); STATE V. LOOMIS, 75 MONT. 88, 242 P. 344
(1925)(BANNING, E.G., CLASSES OF DANCE HALLS); GUNDAKER CENTRAL MOTORS,
INC., V. GASSERT, 23 N.J. 71, 127 A.2D 566 (1956), APP. DISM'D FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION, 354 U.S. 933 (BANNING AUTOMOBILE
TRADING); EX PARTE JOHNSON, 20 OKLA. CR. 66, 201 P. 533 (1921)(BANNING
CINEMA AND THEATERS); CONSOLIDATED ENTERPRISES, INC., V. STATE, 150
TENN. 148, 263 S.W. 74 (1924)(BANNING CINEMA AND THEATERS).  STATUTORY
PROVISIONS WHOSE EFFECT WAS TO PUNISH SOME SUNDAY ACTIVITIES MORE
SEVERELY THAN OTHERS HAVE BEEN SUSTAINED.  STATE V. HOGREIVER, 152 IND.
652, 53 N.E. 921 (1899); TINDER V. CLARKE AUTO CO., 238 IND. 302, 149
N.E.2D 808 (1958); STATE V. MURRAY, 104 NEB. 51, 175 N.W. 666 (1919);
COMMONWEALTH V. GROCHOWIAK, 184 PA. SUPER.  522, 136 A.2D 145 (1957),
APP. DISM'D FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION, 358 U.S. 47;
BREYER V. STATE, 102 TENN. 103, 50 S.W. 769 (1899).  CF. SHERMAN V.
MAYOR OF PATERSON, 82 N.J.L. 345, 82 A. 889 (1912).  FOR CASES
SUSTAINING STATE STATUTES APPLICABLE IN SOME, BUT NOT ALL, LOCALITIES,
SEE PEOPLE V. HAVNOR, 149 N.Y. 195, 43 N.E. 541 (1896); BOHL V. STATE,
3 TEX. APP. 683 (1878); AND COMPARE SARNER V. TOWNSHIP OF UNION, 55
N.J. SUPER.  523, 151 A.2D 208 (1959), WITH TWO GUYS FROM HARRISON,
INC., V. FURMAN, 32 N.J. 199, 169 A.2D 265 (1960). 

FN136  SEE NOTE 131, SUPRA; APPENDIX II TO THIS OPINION, POST, P.
551; WEEKLY REST IN COMMERCE AND OFFICES, REPORT VII(1), INTERNATIONAL
LABOUR CONFERENCE, 39TH SESS., GENEVA, 1956 (1955), 27-52; WEEKLY REST
IN COMMERCE AND OFFICES, REPORT A, INTERNATIONAL LABOUR CONFERENCE,
26TH SESS., GENEVA, 1940 (1939), 82-127. 

FN137  IT IS UNCLEAR WHETHER THE EXCEPTION HERE ASSAILED PERMITS THE
SALE OF MERCHANDISE ESSENTIAL TO, OR CUSTOMARILY SOLD AT, BATHING
BEACHES, BATHHOUSES, ETC., ONLY AT THOSE ENUMERATED PLACES OR BY ALL
RETAILERS WITHIN THE COUNTY.  SINCE THE MARYLAND COURT OF APPEALS LEFT
THE QUESTION OF CONSTRUCTION OPEN BELOW, I ASSUME THE INTERPRETATION
MOST FAVORABLE TO APPELLANTS' CLAIM. 

FN138  MANY OF THE JURISDICTIONS WHICH HAVE SUNDAY LAWS PROVIDE SOME
FORM OF LOCAL OPTION PROCEDURE FOR THE CREATION OF EXCEPTIONS.  THIS IS
ONLY TO RECOGNIZE THE OBVIOUS FACT THAT CONDITIONS OF LIMITED
GEOGRAPHICAL RANGE MAY BE DETERMINATIVE IN STRIKING THE BALANCE OF
FORBIDDEN AND PERMISSIBLE SUNDAY ACTIVITY WHICH BEST ACCORDS WITH
POPULAR HABITS AND DESIRES.  IN MARYLAND THE STATE LEGISLATURE ITSELF
DOES THE JOB OF ADAPTING THE GENERAL STATE-WIDE LAW TO LOCAL
CIRCUMSTANCES.   THIS DIFFERENCE IN METHOD CAN SCARCELY ENTAIL
DIFFERENT FEDERAL CONSTITUTIONAL CONSEQUENCES. 

FN139  SEE ELDORADO ICE CREAM CO. V. CLARK, (1938) 1 K.B. 715,
HOLDING THE SALE OF ICE CREAM FROM A BOX TRICYCLE WITHOUT THE
PROHIBITION OF THE SHOPS (SUNDAY TRADING RESTRICTION) ACT. 

FN140  CONSIDER THE ALTERNATIVE SUGGESTED BY THE ORDINANCE SUSTAINED
IN IN RE SUMIDA, 177 CAL. 388, 170 P. 823 (1918), REQUIRING THAT WHERE
AN ESTABLISHMENT HOUSING BOTH PERMITTED AND PROHIBITED BUSINESSES
REMAINS OPEN ON SUNDAY FOR TRANSACTION OF THE FORMER, A FIVE-FOOT-HIGH
PERMANENT PARTITION OR SCREEN MUST BE ERECTED TO SEPARATE THE TWO
BUSINESS AREAS. 

FN141  SEE FRIEDEBORN V. COMMONWEALTH, 113 PA. 242, 6 A. 160 (1886). 

FN142  SEE 36 PENNSYLVANIA LEGISLATIVE JOURNAL, 143D GENERAL ASSEMBLY
(1959), 1139. 

FN143  SEE ID., AT 1142-1143, 2568. 

           APPENDIX I TO OPINION OF MR. JUSTICE FRANKFURTER. 
      PRINCIPAL COLONIAL SUNDAY STATUTES AND THEIR

                  CONTINUATION UNTIL THE END OF THE

                    EIGHTEENTH CENTURY. 

CONNECTICUT: 

NEW HAVEN COLONY: 

1656:  PROPHANATION OF THE LORD'S DAY, NEW HAVEN'S SETTLING IN NEW
ENGLAND.  AND SOME LAWS FOR GOVERNMENT (1656), REPRINTED IN HINMAN, THE
BLUE LAWS (1838), 132, 206. 

SEE, ALSO PRINCE, AN EXAMINATION OF PETERS'"BLUE LAWS," H.R. DOC. NO.
295, 55TH CONG., 3D SESS. 95, 109, 113-114, 123-125. 

CONNECTICUT COLONY: 

1668:  2 PUBLIC RECORDS OF THE COLONY OF CONNECTICUT, 1665-1678
(1852), 88 (TRAVELING, PLAYING). 

1672:  PROPHANATION OF THE SABBATH, LAWS OF CONNECTICUT, 1673
(BRINLEY REPRINT 1865), 58. 

1676:  2 PUBLIC RECORDS OF THE COLONY OF CONNECTICUT, 1665-1678
(1852), 280. 

SEE AN ACT FOR THE DUE OBSERVATION, AND KEEPING THE SABBATH, OR
LORD'S DAY; AND FOR PREVENTING, AND PUNISHING DISORDERS, AND
PROPHANENESS ON THE SAME, ACTS AND LAWS OF HIS MAJESTY'S ENGLISH COLONY
OF CONNECTICUT IN NEW-ENGLAND (1750), 139; AN ACT FOR THE DUE
OBSERVATIONS OF THE SABBATH OR LORD'S-DAY, ACTS AND LAWS OF THE STATE
OF CONNECTICUT (1784), 213; AN ACT FOR THE DUE OBSERVATION OF THE
SABBATH OR LORD'S-DAY, ACTS AND LAWS OF THE STATE OF CONNECTICUT
(1796), 368. 

DELAWARE: 

1740:  AN ACT TO PREVENT THE BREACH OF THE LORD'S DAY COMMONLY CALLED
SUNDAY, LAWS OF THE GOVERNMENT OF NEW-CASTLE, KENT AND SUSSEX UPON
DELAWARE (1741), 121. 

1795:  AN ACT MORE EFFECTUALLY TO PREVENT THE PROFANATION OF THE
LORD'S DAY, COMMONLY CALLED SUNDAY, 2 LAWS OF DELAWARE, 1700-1797
(1797), 1209. 

GEORGIA: 

1762:  AN ACT FOR PREVENTING AND PUNISHING VICE, PROFANENESS, AND
IMMORALITY, AND FOR KEEPING HOLY THE LORD'S DAY, COMMONLY CALLED
SUNDAY, ACTS PASSED BY THE GENERAL ASSEMBLY OF GEORGIA, 1761-1762 (CA.
1763), 10. 

SEE MARBURY AND CRAWFORD, DIGEST OF THE LAWS OF GEORGIA, 1755-1800
(1802), 410. 

MARYLAND: 

1649:  AN ACT CONCERNING RELIGION, 1 ARCHIVES OF MARYLAND
(PROCEEDINGS AND ACTS OF THE GENERAL ASSEMBLY), 1637/8-1664 (1883),
244. 

1654:  CONCERNING THE SABBATH DAY, ID., AT 343. 

1674:  AN ACT AGAINST THE PROPHANING OF THE SABBATH DAY, 2 ARCHIVES
OF MARYLAND (PROCEEDINGS AND ACTS OF THE GENERAL ASSEMBLY), 1666-1676
(1884), 414 (INNKEEPERS). 

1692:  AN ACT FOR THE SERVICE OF ALMIGHTY GOD AND THE ESTABLISHMENT
OF THE PROTESTANT RELIGION WITHIN THIS PROVINCE, 13 ARCHIVES OF
MARYLAND (PROCEEDINGS AND ACTS OF THE GENERAL ASSEMBLY), 1684-1692
(1894), 425. 

1696:  AN ACT FOR SANCTIFYING & KEEPING HOLY THE LORD'S DAY COMONLY
CALLED SUNDAY, 19 ARCHIVES OF MARYLAND (PROCEEDINGS AND ACTS OF THE
GENERAL ASSEMBLY), 1693-1697 (1899), 418. 

1723:  AN ACT TO PUNISH BLASPHEMERS, SWEARERS, DRUNKARDS, AND SABBATH
BREAKERS  ...  , BACON, LAWS OF MARYLAND (1765), SF2. 

SEE 1 DORSEY, GENERAL PUBLIC STATUTORY LAW OF MARYLAND, 1692-1839
(1840), 65. 

MASSACHUSETTS: 

PLYMOUTH COLONY: 

1650:  PROPHANACON THE LORD'S DAY, COMPACT WITH THE CHARTER AND LAWS
OF THE COLONY OF NEW PLYMOUTH (1836), 92. 

1658:  ID., AT 113 (TRAVELING). 

1671:  GENERAL LAWS OF NEW PLIMOUTH, C. III, SECS. 9, 10 (1672), IN
ID., AT 247. 

MASSACHUSETTS BAY COLONY: 

1653:  SABBATH, COLONIAL LAWS OF MASSACHUSETTS (REPRINTED FROM THE
EDITION OF 1672 WITH THE SUPPLEMENTS THROUGH 1686)(1887), 132
(TRAVELING, SPORTING, DRINKING). 

1668:  FOR THE BETTER PREVENTION OF THE BREACH OF THE SABBATH, ID.,
AT 134. 

1692:  AN ACT FOR THE BETTER OBSERVATION AND KEEPING THE LORD'S DAY,
ACTS AND LAWS OF HIS MAJESTY'S PROVINCE OF THE MASSACHUSETTS-BAY IN NEW
ENGLAND, IN CHARTER OF THE PROVINCE OF THE MASSACHUSETTS-BAY IN NEW
ENGLAND (1759), 13. 

1761:  AN ACT FOR REPEALING THE SEVERAL LAWS NOW IN FORCE WHICH
RELATE TO THE OBSERVATION OF THE LORD'S-DAY, AND FOR MAKING MORE
EFFECTUAL PROVISION FOR THE DUE OBSERVATION THEREOF, ID., AT 392. 

1782:  AN ACT FOR MAKING MORE EFFECTUAL PROVISION FOR THE DUE
OBSERVATION OF THE LORD'S DAY  ... , ACTS AND LAWS OF MASSACHUSETTS,
1782 (REPRINTED 1890), 63. 

1792:  AN ACT PROVIDING FOR THE DUE OBSERVATION OF THE LORD'S DAY, 2
LAWS OF MASSACHUSETTS, 1780-1800 (1801), 536. 

SEE ALSO THE ACT OF 1629 SET FORTH IN BLAKELY, AMERICAN STATE PAPERS
ON FREEDOM IN RELIGION (4TH REV. ED. 1949), AT 29-30. 

NEW HAMPSHIRE: 

1700:  AN ACT FOR THE BETTER OBSERVATION AND KEEPING THE LORDS DAY,
ACTS AND LAWS PASSED BY THE GENERAL COURT OF HIS MAJESTIES PROVINCE OF
NEW-HAMPSHIRE IN NEW-ENGLAND, 1726 (REPRINTED 1886), 7. 

1715:  AN ACT FOR THE INSPECTING, AND SUPRESSING OF DISORDERS IN
LICENSED HOUSES, ID., AT 57 (INNKEEPERS). 

1785:  AN ACT FOR THE BETTER OBSERVATION AND KEEPING THE LORDS DAY, 5
LAWS OF NEW HAMPSHIRE (FIRST CONSTITUTIONAL PERIOD), 1784-1792 (1916),
75. 

1789:  AN ACT FOR THE BETTER OBSERVATION OF THE LORD'S DAY  ...  ,
ID., AT 372. 

1799:  AN ACT FOR THE BETTER OBSERVATION OF THE LORDS DAY  ...  , 6
LAWS OF NEW HAMPSHIRE (SECOND CONSTITUTIONAL PERIOD), 1792-1801 (1917),
592. 

NEW JERSEY: 

1675:  LEAMING AND SPICER, GRANTS, CONCESSIONS AND ORIGINAL
CONSTITUTIONS OF THE PROVINCE OF NEW-JERSEY WITH THE ACTS PASSED DURING
THE PROPRIETARY GOVERNMENTS (CA. 1752), 98. 

1683:  AGAINST PROPHANING THE LORD'S DAY, ID., AT 245. 

1693:  AN ACT FOR PREVENTING PROFANATION OF THE LORDS DAY, ID., AT
519. 

1704:  AN ACT FOR SUPPRESSING OF IMMORALITY, 1 NEVILL, ACTS OF THE
GENERAL ASSEMBLY OF THE PROVINCE OF NEW-JERSEY, 1703-1752 (1752), 3. 

1790:  AN ACT TO PROMOTE THE INTEREST OF RELIGION AND MORALITY, AND
FOR SUPPRESSING OF VICE  ... , ACTS OF THE FOURTEENTH GENERAL ASSEMBLY
OF THE STATE OF NEW JERSEY, C. 311 (1790), 619. 

1798:  AN ACT FOR SUPPRESSING VICE AND IMMORALITY, LAWS OF NEW
JERSEY, REVISED AND PUBLISHED UNDER THE AUTHORITY OF THE LEGISLATURE
(1800), 329. 

NEW YORK: 

1685:  A BILL AGAINST SABBATH BREAKING, 1 COLONIAL LAWS OF NEW YORK,
1664-1775 (1894), 173. 

1695:  AN ACT AGAINST PROFANATION OF THE LORDS DAY, CALLED SUNDAY,
ID., AT 356. 

1788:  AN ACT FOR SUPPRESSING IMMORALITY, LAWS OF NEW YORK, 1785-1788
(1886), 679. 

NORTH CAROLINA: 

1741:  AN ACT FOR THE BETTER OBSERVATION AND KEEPING OF THE LORD'S
DAY, COMMONLY CALLED SUNDAY; AND FOR THE MORE EFFECTUAL SUPPRESSION OF
VICE AND IMMORALITY, 1 LAWS OF NORTH CAROLINA (1821), 142. 

PENNSYLVANIA: 

1682:  THE GREAT LAW OR THE BODY OF LAWS, IN CHARTER AND LAWS OF THE
PROVINCE OF PENNSYLVANIA, 1682-1700 (WITH THE DUKE OF YORKE'S BOOK OF
LAWS, 1676-1682)(1879), 107. 

1690:  THE LAW CONCERNING LIBERTY OF CONSCIENCE (A PETITION OF RIGHT,
FIRST LAW), ID., AT 192. 

1700:  THE LAW CONCERNING LIBERTY OF CONSCIENCE, 2 STATUTES AT LARGE
OF PENNSYLVANIA (1896), 3. 

1705:  AN ACT TO RESTRAIN PEOPLE FROM LABOR ON THE FIRST DAY OF THE
WEEK, ID., AT 175. 

1779:  AN ACT FOR THE SUPPRESSION OF VICE AND IMMORALITY, 9 STATUTES
AT LARGE OF PENNSYLVANIA (1903), 333. 

1786:  AN ACT FOR THE PREVENTION OF VICE AND IMMORALITY  ...  , 12
STATUTES AT LARGE OF PENNSYLVANIA (1906), 313. 

1794:  AN ACT FOR THE PREVENTION OF VICE AND IMMORALITY  ...  , 15
STATUTES AT LARGE OF PENNSYLVANIA (1911), 110. 

RHODE ISLAND: 

1673:  2 RECORDS OF THE COLONY OF RHODE ISLAND AND PROVIDENCE
PLANTATIONS, 1664-1677 (1857), 503 (ALCOHOLIC BEVERAGES). 

1679:  3 RECORDS OF THE COLONY OF RHODE ISLAND AND PROVIDENCE
PLANTATIONS, 1678-1706 (1858), 30 (EMPLOYING SERVANTS). 

1679:  AN ACT PROHIBITING SPORTS AND LABOURS ON THE FIRST DAY OF THE
WEEK, ACTS AND LAWS, OF HIS MAJESTY'S COLONY OF RHODE-ISLAND AND
PROVIDENCE-PLANTATIONS (1730), 27. 

1784:  RHODE ISLAND ACTS AND RESOLVES, AUG. 1784 (1784), 9 (EXCEPTING
MEMBERS OF SABBATARIAN SOCIETIES; BUT EXCEPTION DOES NOT EXTEND TO
OPENING SHOPS, TO MECHANICAL WORK IN COMPACT PLACES, ETC.). 

1798:  AN ACT PROHIBITING SPORTS AND LABOUR ON THE FIRST DAY OF THE
WEEK, PUBLIC LAWS OF RHODE-ISLAND AND PROVIDENCE PLANTATIONS (1798),
577. 

SOUTH CAROLINA: 

1692:  AN ACT FOR THE BETTER OBSERVANCE OF THE LORD'S DAY, COMMONLY
CALLED SUNDAY, 2 STATUTES AT LARGE OF SOUTH CAROLINA (1837), 74. 

1712:  AN ACT FOR THE BETTER OBSERVATION OF THE LORD'S DAY, COMMONLY
CALLED SUNDAY, ID., AT 396. 

SEE GRIMKE, PUBLIC LAWS OF SOUTH-CAROLINA (1790), 19. 

VIRGINIA: 

1610:  FOR THE COLONY IN VIRGINEA BRITANNIA, LAWES DIVINE, MORALL AND
MARTIALL (1612), IN 3 FORCE, TRACTS RELATING TO THE COLONIES IN NORTH
AMERICA (1844), II, 10 (GAMING). 

1629:  1 HENING, STATUTES OF VIRGINIA (1823), 144. 

1642-1643: ID., AT 261 (TRAVELING, SHOOTING). 

1657:  THE SABBOTH TO BE KEPT HOLY, ID., AT 434 (TRAVELING, SHOOTING,
LADING). 

1661-1662:  SUNDAYS NOT TO BEE PROFANED, 2 HENING, STATUTES, OF
VIRGINIA (1823), 48. 

1691:  AN ACT FOR THE MORE EFFECTUAL SUPPRESSING THE SEVERALL SINS
AND OFFENCES OF SWARING, CURSING, PROFAINEING GODS HOLY NAME, SABBATH
ABUSEING, DRUNKENNESS, FFORNICATION, AND ADULTERY, 3 HENING, STATUTES
OF VIRGINIA (1823), 71. 

1705:  AN ACT FOR THE EFFECTUAL SUPPRESSION OF VICE, AND RESTRAINT
AND PUNISHMENT OF BLASPHEMOUS, WICKED, AND DISSOLUTE PERSONS, ID., AT
358. 

1786:  AN ACT FOR PUNISHING DISTURBERS OF RELIGIOUS WORSHIP AND
SABBATH BREAKERS, 12 HENING, STATUTES OF VIRGINIA (1823), 336. 

IN SOME OF THE COLONIES THE ENGLISH SUNDAY LAWS WERE ALSO IN EFFECT. 
SEE, E.G., MARTIN, COLLECTION OF THE STATUTES OF ENGLAND IN FORCE IN
NORTH-CAROLINA (1792), 379. 

                 APPENDIX II TO OPINION OF MR. JUSTICE
FRANKFURTER. 

                   ANALYSIS OF IMPORTANT STATE SUNDAY STATUTES

                                CURRENTLY IN FORCE. 

THIS APPENDIX SETS FORTH THE IMPORTANT STATE LEGISLATIVE PROVISIONS
CURRENTLY IN FORCE PROHIBITING OR REGULATING PRIVATE ACTIVITY ON
SUNDAY.  IN REDUCING THESE OFTEN COMPLEX LAWS TO TABULAR FORM, A
CERTAIN SIMPLIFICATION HAS BEEN REQUIRED.  PROVISIONS IN DIFFERENT
STATES WHICH ARE FOUND IN A SINGLE CATEGORY, E.G., "TRADE IN ALCOHOLIC
BEVERAGES," OR "RACING," MAY DIFFER CONSIDERABLY IN DETAIL.  THIS
APPENDIX DOES NOT INCLUDE REFERENCES TO:  (1) PROVISIONS DECLARING
SUNDAY A HOLIDAY OR NON-BUSINESS DAY; (2) PROVISIONS CLOSING THE COURTS
ON SUNDAY OR PROHIBITING THE SERVICE OF JUDICIAL PROCESS ON THAT DAY;
(3) PROVISIONS GIVING VARIOUS GOVERNMENT EMPLOYEES SUNDAY OFF OR
EXCEPTING SUNDAY FROM THE DAYS OF LABOR FOR STATE PRISONERS; (4)
PENALTY SECTIONS WHERE SUNDAY LAWS ARE PARTS OF GENERAL REGULATORY
CODES, E.G., FISH AND GAME LAWS; (5) JURISDICTIONAL PROVISIONS OR
PROVISIONS AUTHORIZING ARREST AND DETENTION ON SUNDAY OF OFFENDERS
AGAINST THE VARIOUS SUNDAY LAWS, UNLESS THESE ARE OF SPECIAL INTEREST;
AND (6) DEFINITION PROVISIONS, STATUTES OF LIMITATION OF PROSECUTION,
AND SIMILAR ANCILLARY PROVISIONS. 

                                    TABLE OMITTED 

MR. JUSTICE DOUGLAS, DISSENTING.* 

*(NOTE:  THIS OPINION APPLIES ALSO TO NO. 36, TWO GUYS FROM HARRISON
ALLENTOWN, INC., V. MCGINLEY, DISTRICT ATTORNEY, LEHIGH COUNTY,
PENNSYLVANIA, ET AL., POST, P. 582; NO. 67, BRAUNFELD ET AL. V. BROWN,
COMMISSIONER OF POLICE OF PHILADELPHIA, ET AL., POST, P. 599; AND NO.
11, GALLAGHER, CHIEF OF POLICE OF SPRINGFIELD, MASSACHUSETTS, ET AL. V.
CROWN KOSHER SUPER MARKET, INC., ET AL., POST, P. 617.) 

THE QUESTION IS NOT WHETHER ONE DAY OUT OF SEVEN CAN BE IMPOSED BY A
STATE AS A DAY OF REST.  THE QUESTION IS NOT WHETHER SUNDAY CAN BY
FORCE OF CUSTOM AND HABIT BE RETAINED AS A DAY OF REST.  THE QUESTION
IS WHETHER A STATE CAN IMPOSE CRIMINAL SANCTIONS ON THOSE WHO, UNLIKE
THE CHRISTIAN MAJORITY THAT MAKES UP OUR SOCIETY, WORSHIP ON A
DIFFERENT DAY OR DO NOT SHARE THE RELIGIOUS SCRUPLES OF THE MAJORITY. 

IF THE "FREE EXERCISE" OF RELIGION WERE SUBJECT TO REASONABLE
REGULATIONS, AS IT IS UNDER SOME CONSTITUTIONS, OR IF ALL LAWS
"RESPECTING THE ESTABLISHMENT OF RELIGION" WERE NOT PROSCRIBED, I COULD
UNDERSTAND HOW RATIONAL MEN, REPRESENTING A PREDOMINANTLY CHRISTIAN
CIVILIZATION, MIGHT THINK THESE SUNDAY LAWS DID NOT UNREASONABLY
INTERFERE WITH ANYONE'S FREE EXERCISE OF RELIGION AND TOOK NO STEP
TOWARD A BURDENSOME ESTABLISHMENT OF ANY RELIGION. 

BUT THAT IS NOT THE PREMISE FROM WHICH WE START, AS THERE IS
AGREEMENT THAT THE FACT THAT A STATE, AND NOT THE FEDERAL GOVERNMENT,
HAS PROMULGATED THESE SUNDAY LAWS DOES NOT CHANGE THE SCOPE OF THE
POWER ASSERTED.  FOR THE CLASSIC VIEW IS THAT THE FIRST AMENDMENT
SHOULD BE APPLIED TO THE STATES WITH THE SAME FIRMNESS AS IT IS
ENFORCED AGAINST THE FEDERAL GOVERNMENT.  SEE LOVELL V. GRIFFIN, 303
U.S. 444, 450; MINERSVILLE DISTRICT V. GOBITIS, 310 U.S. 586, 593;
MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 108; BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624, 639; STAUB V. CITY OF BAXLEY, 355 U.S. 313,
321; TALLEY V. CALIFORNIA, 362 U.S. 60.  THE MOST EXPLICIT STATEMENT
PERHAPS WAS IN BOARD OF EDUCATION V. BARNETTE, SUPRA, 639. 

"IN WEIGHING ARGUMENTS OF THE PARTIES IT IS IMPORTANT TO DISTINGUISH
BETWEEN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AS AN
INSTRUMENT FOR TRANSMITTING THE PRINCIPLES OF THE FIRST AMENDMENT AND
THOSE CASES IN WHICH IT IS APPLIED FOR ITS OWN SAKE.  THE TEST OF
LEGISLATION WHICH COLLIDES WITH THE FOURTEENTH AMENDMENT, BECAUSE IT
ALSO COLLIDES WITH THE PRINCIPLES OF THE FIRST, IS MUCH MORE DEFINITE
THAN THE TEST WHEN ONLY THE FOURTEENTH IS INVOLVED.  MUCH OF THE
VAGUENESS OF THE DUE PROCESS CLAUSE DISAPPEARS WHEN THE SPECIFIC
PROHIBITIONS OF THE FIRST BECOME ITS STANDARD.  THE RIGHT OF A STATE TO
REGULATE, FOR EXAMPLE, A PUBLIC UTILITY MAY WELL INCLUDE, SO FAR AS THE
DUE PROCESS TEST IS CONCERNED, POWER TO IMPOSE ALL OF THE RESTRICTIONS
WHICH A LEGISLATURE MAY HAVE A 'RATIONAL BASIS' FOR ADOPTING.  BUT
FREEDOMS OF SPEECH AND OF PRESS, OF ASSEMBLY, AND OF WORSHIP MAY NOT BE
INFRINGED ON SUCH SLENDER GROUNDS.  THEY ARE SUSCEPTIBLE OF RESTRICTION
ONLY TO PREVENT GRAVE AND IMMEDIATE DANGER TO INTERESTS WHICH THE STATE
MAY LAWFULLY PROTECT.  IT IS IMPORTANT TO NOTE THAT WHILE IT IS THE
FOURTEENTH AMENDMENT WHICH BEARS DIRECTLY UPON THE STATE IT IS THE MORE
SPECIFIC LIMITING PRINCIPLES OF THE FIRST AMENDMENT THAT FINALLY GOVERN
THIS CASE."    WITH THAT AS MY STARTING POINT I DO NOT SEE HOW A STATE
CAN MAKE PROTESTING CITIZENS REFRAIN FROM DOING INNOCENT ACTS ON SUNDAY
BECAUSE THE DOING OF THOSE ACTS OFFENDS SENTIMENTS OF THEIR CHRISTIAN
NEIGHBORS.    THE INSTITUTIONS OF OUR SOCIETY ARE FOUNDED ON THE BELIEF
THAT THERE IS AN AUTHORITY HIGHER THAN THE AUTHORITY OF THE STATE; THAT
THERE IS A MORAL LAW WHICH THE STATE IS POWERLESS TO ALTER; THAT THE
INDIVIDUAL POSSESSES RIGHTS, CONFERRED BY THE CREATOR, WHICH GOVERNMENT
MUST RESPECT.  THE DECLARATION OF INDEPENDENCE STATED THE NOW FAMILIAR
THEME: 

"WE HOLD THESE TRUTHS TO BE SELF-EVIDENT, THAT ALL MEN ARE CREATED
EQUAL, THAT THEY ARE ENDOWED BY THEIR CREATOR WITH CERTAIN UNALIENABLE
RIGHTS, THAT AMONG THESE ARE LIFE, LIBERTY, AND THE PURSUIT OF
HAPPINESS." 

AND THE BODY OF THE CONSTITUTION AS WELL AS THE BILL OF RIGHTS
ENSHRINED THOSE PRINCIPLES. 

THE PURITAN INFLUENCE HELPED SHAPE OR CONSTITUTIONAL LAW AND OUR
COMMON LAW AS DEAN POUND HAS SAID:  THE PURITAN "PUT INDIVIDUAL
CONSCIENCE AND INDIVIDUAL JUDGMENT IN THE FIRST PLACE."  THE SPIRIT OF
THE COMMON LAW (1921), P. 42.  FOR THESE REASONS WE STATED IN ZORACH V.
CLAUSON, 343 U.S. 306, 313, "WE ARE A RELIGIOUS PEOPLE WHOSE
INSTITUTIONS PRESUPPOSE A SUPREME BEING." 

BUT THOSE WHO FASHIONED THE FIRST AMENDMENT DECIDED THAT IF AND WHEN
GOD IS TO BE SERVED, HIS SERVICE WILL NOT BE MOTIVATED BY COERCIVE
MEASURES OF GOVERNMENT.  "CONGRESS SHALL MAKE NO LAW RESPECTING AN
ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF" -
SUCH IS THE COMMAND OF THE FIRST AMENDMENT MADE APPLICABLE TO THE STATE
BY REASON OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH.  THIS MEANS, AS
I UNDERSTAND IT, THAT IF A RELIGIOUS LEAVEN IS TO BE WORKED INTO THE
AFFAIRS OF OUR PEOPLE, IT IS TO BE DONE BY INDIVIDUALS AND GROUPS, NOT
BY THE GOVERNMENT.  THIS NECESSARILY MEANS, FIRST, THAT THE DOGMA,
CREED, SCRUPLES, OR PRACTICES OF NO RELIGIOUS GROUP OR SECT ARE TO BE
PREFERRED OVER THOSE OF ANY OTHERS; SECOND, THAT NO ONE SHALL BE
INTERFERED WITH BY GOVERNMENT FOR PRACTICING THE RELIGION OF HIS
CHOICE; THIRD, THAT THE STATE MAY NOT REQUIRE ANYONE TO PRACTICE A
RELIGION OR EVEN ANY RELIGION; AND FOURTH, THAT THE STATE CANNOT COMPEL
ONE SO TO CONDUCT HIMSELF AS NOT TO OFFEND THE RELIGIOUS SCRUPLES OF
ANOTHER.  THE IDEA, AS I UNDERSTAND IT, WAS TO LIMIT THE POWER OF
GOVERNMENT TO ACT IN RELIGIOUS MATTERS (BOARD OF EDUCATION V. BARNETTE,
SUPRA; MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203), NOT TO LIMIT THE
FREEDOM OF RELIGIOUS MEN TO ACT RELIGIOUSLY NOR TO RESTRICT THE FREEDOM
OF ATHEISTS OR AGNOSTICS. 

THE FIRST AMENDMENT COMMANDS GOVERNMENT TO HAVE NO INTEREST IN
THEOLOGY OR RITUAL; IT ADMONISHES GOVERNMENT TO BE INTERESTED IN
ALLOWING RELIGIOUS FREEDOM TO FLOURISH - WHETHER THE RESULT IS TO
PRODUCE CATHOLICS, JEWS, OR PROTESTANTS, OR TO TURN THE PEOPLE TOWARD
THE PATH OF BUDDHA, OR TO END IN A PREDOMINANTLY MOSLEM NATION, OR TO
PRODUCE IN THE LONG RUN ATHEISTS OR AGNOSTICS.  ON MATTERS OF THIS KIND
GOVERNMENT MUST BE NEUTRAL.  THIS FREEDOM PLAINLY INCLUDES FREEDOM FROM
RELIGION WITH THE RIGHT TO BELIEVE, SPEAK, WRITE, PUBLISH AND ADVOCATE
ANTIRELIGIOUS PROGRAMS.  BOARD OF EDUCATION V. BARNETTE, SUPRA, 641. 
CERTAINLY THE "FREE EXERCISE" CLAUSE DOES NOT REQUIRE THAT EVERYONE
EMBRACE THE THEOLOGY OF SOME CHURCH OR OF SOME FAITH, OR OBSERVE THE
RELIGIOUS PRACTICES OF ANY MAJORITY OR MINORITY SECT.  THE FIRST
AMENDMENT BY ITS "ESTABLISHMENT" CLAUSE PREVENTS, OF COURSE, THE
SELECTION BY GOVERNMENT OF AN "OFFICIAL" CHURCH.  YET THE BAN PLAINLY
EXTENDS FARTHER THAN THAT.   WE SAID IN EVERSON V. BOARD OF EDUCATION,
330 U.S. 1, 16, THAT IT WOULD BE AN "ESTABLISHMENT" OF A RELIGION IF
THE GOVERNMENT FINANCED ONE CHURCH OR SEVERAL CHURCHES.  FOR WHAT
BETTER WAY TO "ESTABLISH" AN INSTITUTION THAN TO FIND THE FUND THAT
WILL SUPPORT IT?  THE "ESTABLISHMENT" CLAUSE PROTECTS CITIZENS ALSO
AGAINST ANY LAW WHICH SELECTS ANY RELIGIOUS CUSTOM, PRACTICE, OR
RITUAL, PUTS THE FORCE OF GOVERNMENT BEHIND IT, AND FINES, IMPRISONS,
OR OTHERWISE PENALIZES A PERSON FOR NOT OBSERVING IT.  THE GOVERNMENT
PLAINLY COULD NOT JOIN FORCES WITH ONE RELIGIOUS GROUP AND DECREE A
UNIVERSAL AND SYMBOLIC CIRCUMCISION.  NOR COULD IT REQUIRE ALL CHILDREN
TO BE BAPTIZED OR GIVE TAX EXEMPTIONS ONLY TO THOSE WHOSE CHILDREN WERE
BAPTIZED. 

COULD IT REQUIRE A FAST FROM SUNRISE TO SUNSET THROUGHOUT THE MOSLEM
MONTH OF RAMADAN?  I SHOULD THINK NOT.  YET WHY THEN CAN IT MAKE
CRIMINAL THE DOING OF OTHER ACTS, AS INNOCENT AS EATING, DURING THE DAY
THAT CHRISTIANS REVERE? 

SUNDAY IS A WORD HEAVILY OVERLAID WITH CONNOTATIONS AND TRADITIONS
DERIVING FROM THE CHRISTIAN ROOTS OF OUR CIVILIZATION THAT COLOR ALL
JUDGMENTS CONCERNING IT.  THIS IS WHAT THE PHILOSOPHERS CALL "WORD
MAGIC." 

"FOR MOST JUDGES, FOR MOST LAWYERS, FOR MOST HUMAN BEINGS, WE ARE AS
UNCONSCIOUS OF OUR VALUE PATTERNS AS WE ARE OF THE OXYGEN THAT WE
BREATHE."  COHEN, LEGAL CONSCIENCE (1960), P. 169. 

THE ISSUE OF THESE CASES WOULD THEREFORE BE IN BETTER FOCUS IF WE
IMAGINED THAT A STATE LEGISLATURE, CONTROLLED BY ORTHODOX JEWS AND
SEVENTH-DAY ADVENTISTS, PASSED A LAW MAKING IT A CRIME TO KEEP A SHOP
OPEN ON SATURDAYS.  WOULD A BAPTIST, CATHOLIC, METHODIST, OR
PRESBYTERIAN BE COMPELLED TO OBEY THAT LAW OR GO TO JAIL OR PAY A
FINE?  OR SUPPOSE MOSLEMS GREW IN POLITICAL STRENGTH HERE AND GOT A LAW
THROUGH A STATE LEGISLATURE MAKING IT A CRIME TO KEEP A SHOP OPEN ON
FRIDAYS.  WOULD THE REST OF US HAVE TO SUBMIT UNDER THE FEAR OF
CRIMINAL SANCTIONS? 

DR. JOHN COGLEY RECENTLY SUMMED UP (FN1) THE DOMINANCE OF THE THREE
RELIGION INFLUENCE IN OUR AFFAIRS: 

"FOR THE FORESEEABLE FUTURE, IT SEEMS, THE UNITED STATES IS GOING TO
BE A THREE-RELIGION NATION.  AT THE PRESENT TIME ALL THREE ARE
CHARACTERISTICALLY 'AMERICAN,' SOME THINK FLAVORLESSLY SO.  FOR
RELIGION IN AMERICA IS ALMOST UNIFORMLY 'RESPECTABLE,' BOURGEOIS, AND
PROSPEROUS.  IN THE PROTESTANT WORLD THE 'CHURCH' MENTALITY HAS
TRIUMPHED OVER THE MORE VENTURESOME SPIRIT OF THE 'SECT.'  IN THE
CATHOLIC WORLD, THE MYSTICAL IS MUTED IN FAVOR OF BOOMING ORGANIZATION
AND EFFICIENTLY ADMINISTERED GOOD WORKS.  AND IN THE JEWISH WORLD THE
PROPHET IS TOO FREQUENTLY WITHOUT HONOR, WHILE THE SYNAGOGUE EMPHASIS
IS FOCUSED ON SUBURBAN TOGETHERNESS.  THERE ARE EXCEPTIONS TO THESE
RULES, OF COURSE; EACH OF THE RELIGIOUS COMMUNITIES CONTINUES TO CASE
UP ITS PROPHETS, ITS REBELS AND RADICALS.  BUT A JEREMIAH, ONE FEARS,
WOULD BE POSITIVELY EMBARRASSING TO THE PRESENT POSITION OF THE JEWS; A
FRANCIS OF ASSISI UPSETTING THE COMPLACENCY OF AMERICAN CATHOLICS WOULD
BE RUDELY DISMISSED AS A FANATIC; AND A KIERKEGAARD, SPEAKING WITH AN
AMERICAN ACCENT, WOULD BE CONSIDERABLY LESS WELCOME THAN NORMAN VINCENT
PEALE IN MOST PROTESTANT PULPITS." 

THIS RELIGIOUS INFLUENCE HAS EXTENDED FAR, FAR BACK OF THE FIRST AND
FOURTEENTH AMENDMENTS.  EVERY SUNDAY SCHOOL STUDENT KNOWS THE FOURTH
COMMANDMENT: 

"REMEMBER THE SABBATH DAY, TO KEEP IT HOLY. 

"SIX DAYS SHALT THOU LABOUR, AND DO ALL THY WORK: 

"BUT THE SEVENTH DAY IS THE SABBATH OF THE LORD THY GOD:  IN IT THOU
SHALT NOT DO ANY WORK, THOU, NOR THY SON, NOR THY DAUGHTER, THY
MANSERVANT, NOR THY MAIDSERVANT, NOR THY CATTLE, NOR THY STRANGER THAT
IS WITHIN THY GATES: 

"FOR IN SIX DAYS THE LORD MADE HEAVEN AND EARTH, THE SEA, AND ALL
THAT IN THEM IS, AND RESTED THE SEVENTH DAY:  WHEREFORE THE LORD
BLESSED THE SABBATH DAY, AND HALLOWED IT."  EXODUS 20:8-11. 

THIS RELIGIOUS MANDATE FOR OBSERVANCE OF THE SEVENTH DAY BECAME,
UNDER EMPEROR CONSTANTINE, A MANDATE FOR OBSERVANCE OF THE FIRST DAY
"IN CONFORMITY WITH THE PRACTICE OF THE CHRISTIAN CHURCH."  SEE
RICHARDSON V. GODDARD, 23 HOW.  28, 41.  THIS RELIGIOUS MANDATE HAS HAD
A CHECKERED HISTORY, BUT IN GENERAL ITS COMMAND, ENFORCED NOW BY THE
ECCLESIASTICAL AUTHORITIES, NOW BY THE CIVIL AUTHORITIES, AND NOW BY
BOTH, HAS HELD GOOD DOWN THROUGH THE CENTURIES.  (FN2)  THE GENERAL
PATTERN OF THESE LAWS IN THE UNITED STATES WAS SET IN THE EIGHTEENTH
CENTURY AND DERIVES, MOST DIRECTLY, FROM A SEVENTEENTH CENTURY ENGLISH
STATUTE.  29 CHARLES II, C. 7.  JUDICIAL COMMENT ON THE SUNDAY LAWS HAS
ALWAYS BEEN A MIXED BAG.  SOME JUDGES HAVE ASSERTED THAT THE STATUTES
HAVE A "PURELY" CIVIL AIM, I.E., LIMITATION OF WORK TIME AND PROVISION
FOR A COMMON AND UNIVERSAL LEISURE.  BUT OTHER JUDGES HAVE RECOGNIZED
THE RELIGIOUS SIGNIFICANCE OF SUNDAY AND THAT THE LAWS EXISTED TO
ENFORCE THE MAINTENANCE OF THAT SIGNIFICANCE.  IN GENERAL, BOTH THREADS
OF ARGUMENT HAVE CONTINUED TO INTERWEAVE IN THE CASE LAW ON THE
SUBJECT.  PRIOR TO THE TIME WHEN THE FIRST AMENDMENT WAS HELD
APPLICABLE TO THE STATES BY REASON OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH, THE COURT AT LEAST BY OBITER DICTUM APPROVED STATE SUNDAY
LAWS ON THREE OCCASIONS:  SOON HING V. CROWLEY, 113 U.S. 703, IN 1885;
HENNINGTON V. GEORGIA, 163 U.S. 299, IN 1896; PETIT V. MINNESOTA, 177
U.S. 164, IN 1900.  AND IN FRIEDMAN V. NEW YORK, 341 U.S. 907, THE
COURT, BY A DIVIDED VOTE, DISMISSED (FN3) "FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION" AN APPEAL FROM A NEW YORK DECISION UPHOLDING THE
VALIDITY OF A SUNDAY LAW AGAINST AN ATTACK BASED ON THE FIRST
AMENDMENT. 

THE SOON HING, HENNINGTON, AND PETIT CASES ALL RESTED ON THE POLICE
POWER OF THE STATE - THE RIGHT TO SAFEGUARD THE HEALTH OF THE PEOPLE BY
REQUIRING THE CESSATION OF NORMAL ACTIVITIES ONE DAY OUT OF SEVEN.  THE
COURT IN THE SOON HING CASE REJECTED THE IDEA THAT SUNDAY LAWS RESTED
ON THE POWER OF GOVERNMENT "TO LEGISLATE FOR THE PROMOTION OF RELIGIOUS
OBSERVANCES."  113 U.S., AT 710.  THE NEW YORK COURT OF APPEALS IN THE
FRIEDMAN CASE FOLLOWED THE REASONING OF THE EARLIER CASES, (FN4) 302
N.Y. 75, 80, 96 N.E.2D 184, 186. 

THE MASSACHUSETTS SUNDAY LAW INVOLVED IN ONE OF THESE APPEALS WAS
ONCE CHARACTERIZED BY THE MASSACHUSETTS COURT AS MERELY A CIVIL
REGULATION PROVIDING FOR A "FIXED PERIOD OF REST."  COMMONWEALTH V.
HAS, 122 MASS. 40, 42.  THAT DECISION WAS, ACCORDING TO THE DISTRICT
COURT IN THE GALLAGHER CASE, "AN AD HOC IMPROVISATION" MADE "BECAUSE OF
THE REALIZATION THAT THE SUNDAY LAW WOULD BE MORE VULNERABLE TO
CONSTITUTIONAL ATTACK UNDER THE STATE CONSTITUTION IF THE RELIGIOUS
MOTIVATION OF THE STATUTE WERE MORE EXPLICITLY AVOWED."  176 F. SUPP.
466, 473.  CERTAINLY PRIOR TO THE HAS CASE, THE MASSACHUSETTS COURTS
HAD INDICATED THAT THE AIM OF THE SUNDAY LAW WAS RELIGIOUS.  SEE PEARCE
V. ATWOOD, 13 MASS. 324, 345-346; BENNETT V. BROOKS, 91 MASS. 118,
121.  AFTER THE HAS CASE THE MASSACHUSETTS COURT CONSTRUED THE SUNDAY
LAW AS A RELIGIOUS MEASURE.  IN DAVIS V. SOMERVILLE, 128 MASS. 594,
596, 35 AM. REP. 399, 400, IT WAS SAID: 

"OUR PURITAN ANCESTORS INTENDED THAT THE DAY SHOULD BE NOT MERELY A
DAY OF REST FROM LABOR, BUT ALSO A DAY DEVOTED TO PUBLIC AND PRIVATE
WORSHIP AND TO RELIGIOUS MEDITATION AND REPOSE, UNDISTURBED BY SECULAR
CARES OR AMUSEMENTS.  THEY SAW FIT TO ENFORCE THE OBSERVANCE OF THE DAY
BY PENAL LEGISLATION, AND THE STATUTE REGULATIONS WHICH THEY DEVISED
FOR THAT PURPOSE HAVE CONTINUED IN FORCE, WITHOUT ANY SUBSTANTIAL
MODIFICATION, TO THE PRESENT TIME." 

AND SEE COMMONWEALTH V. DEXTRA, 143 MASS. 28, 8 N.E. 756.  IN
COMMONWEALTH V. WHITE, 190 MASS. 578, 581, 77 N.E. 636, 637, THE COURT
REFUSED TO LIBERALIZE ITS CONSTRUCTION OF AN EXCEPTION IN ITS SUNDAY
LAW FOR WORKS OF "NECESSITY."  THAT WORD, IT SAID, "WAS ORIGINALLY
INSERTED TO SECURE THE OBSERVANCE OF THE LORD'S DAY IN ACCORDANCE WITH
THE VIEWS OF OUR ANCESTORS, AND IT EVER SINCE HAS STOOD AND STILL
STANDS FOR THE SAME PURPOSE."  IN COMMONWEALTH V. MCCARTHY, 244 MASS.
484, 486, 138 N.E. 835, 836, THE COURT REITERATED THAT THE AIM OF THE
LAW WAS "TO SECURE RESPECT AND REVERENCE FOR THE LORD'S DAY." 

THE PENNSYLVANIA SUNDAY LAWS BEFORE US IN NOS. 36 AND 67 HAVE
RECEIVED THE SAME CONSTRUCTION.  "REST AND QUIET, ON THE SABBATH DAY,
WITH THE RIGHT AND PRIVILIGE OF PUBLIC AND PRIVATE WORSHIP, UNDISTURBED
BY ANY MERE WORDLY EMPLOYMENT, ARE EXACTLY WHAT THE STATUTE WAS PASSED
TO PROTECT."  SPARHAWK V. UNION PASSENGER R. CO., 54 PA. 401, 423.  AND
SEE COMMONWEALTH V. NESBIT, 34 PA.  398, 405, 406-408.  A RECENT
PRONOUNCEMENT BY THE PENNSYLVANIA SUPREME COURT IS FOUND IN
COMMONWEALTH V. AMERICAN BASEBALL CLUB, 290 PA. 136, 143, 138 A. 497,
499:  "CHRISTIANITY IS PART OF THE COMMON LAW OF PENNSYLVANIA  ...  AND
ITS PEOPLE ARE CHRISTIAN PEOPLE.  SUNDAY IS THE HOLY DAY AMONG
CHRISTIANS." 

THE MARYLAND COURT, IN SUSTAINING THE CHALLENGED LAW IN NO. 8, RELIED
ON JUDEFIND V. STATE, 78 MD. 510, 28 A. 405, AND LEVERING V. PARK
COMMISSIONER, (FN5) 134 MD. 48, 106 A. 176.  IN THE FORMER THE COURT
SAID: 

"IT IS UNDOUBTEDLY TRUE THAT REST FROM SECULAR EMPLOYMENT ON SUNDAY
DOES HAVE A TENDENCY TO FOSTER AND ENCOURAGE THE CHRISTIAN RELIGION -
OF ALL SECTS AND DENOMINATIONS THAT OBSERVE THAT DAY - AS REST FROM
WORK AND ORDINARY OCCUPATION ENABLES MANY TO ENGAGE IN PUBLIC WORSHIP
WHO PROBABLY WOULD NOT OTHERWISE DO SO.  BUT IT WOULD SCARCELY BE ASKED
OF A COURT, IN WHAT PROFESSES TO BE A CHRISTIAN LAND, TO DECLARE A LAW
UNCONSTITUTIONAL BECAUSE IT REQUIRES REST FROM BODILY LABOR ON SUNDAY,
(EXCEPT WORKS OF NECESSITY AND CHARITY,) AND THEREBY PROMOTES THE CAUSE
OF CHRISTIANITY.  IF THE CHRISTIAN RELIGION IS, INCIDENTALLY OR
OTHERWISE, BENEFITED OR FOSTERED BY HAVING THIS DAY OF REST, AS IT
UNDOUBTEDLY IS, THERE IS ALL THE MORE REASON FOR THE ENFORCEMENT OF
LAWS THAT HELP TO PRESERVE IT."  78 MD., AT 515-516, 128 A., AT 407. 
IN THE LEVERING CASE THE COURT RELIED ON THE EXCERPT FROM THE JUDEFIND
DECISION JUST QUOTED.  134 MD., AT 54-55, 106 A., AT 178. 

WE HAVE THEN IN EACH OF THE FOUR CASES SUNDAY LAWS THAT FIND THEIR
SOURCE IN EXODUS, THAT WERE BROUGHT HERE BY THE VIRGINIANS AND BY THE
PURITANS, AND THAT ARE TODAY MAINTAINED, CONSTRUED, AND JUSTIFIED
BECAUSE THEY RESPECT THE VIEWS OF OUR DOMINANT RELIGIOUS GROUPS AND
PROVIDE A NEEDED DAY OF REST. 

THE HISTORY WAS ACCURATELY SUMMARIZED A CENTURY AGO BY CHIEF JUSTICE
TERRY OF THE SUPREME COURT OF CALIFORNIA IN EX PARTE NEWMAN, 9 CAL.
502, 509: 

"THE TRUTH IS, HOWEVER MUCH IT MAY BE DISGUISED, THAT THIS ONE DAY OF
REST IS A PURELY RELIGIOUS IDEA.  DERIVED FROM THE SABBATICAL
INSTITUTIONS OF THE ANCIENT HEBREW, IT HAS BEEN ADOPTED INTO ALL THE
CREEDS OF SUCCEEDING RELIGIOUS SECTS THROUGHOUT THE CIVILIZED WORLD;
AND WHETHER IT BE THE FRIDAY OF THE MOHAMMEDAN, THE SATURDAY OF THE
ISRAELITE, OR THE SUNDAY OF THE CHRISTIAN, IT IS ALIKE FIXED IN THE
AFFECTIONS OF ITS FOLLOWERS, BEYOND THE POWER OF ERADICATION, AND IN
MOST OF THE STATES OF OUR CONFEDERACY, THE AID OF THE LAW TO ENFORCE
ITS OBSERVANCE HAS BEEN GIVEN UNDER THE PRETENCE OF A CIVIL, MUNICIPAL,
OR POLICE REGULATION." 

THAT CASE INVOLVED THE VALIDITY OF A SUNDAY LAW UNDER A PROVISION OF
THE CALIFORNIA CONSTITUTION GUARANTEEING THE "FREE EXERCISE" OF
RELIGION.  CALIF. CONST., 1849, ART. I, SEC. 4.  JUSTICE BURNETT STATED
WHY HE CONCLUDED THAT THE SUNDAY LAW, THERE SOUGHT TO BE ENFORCED
AGAINST A MAN SELLING CLOTHING ON SUNDAY, INFRINGED CALIFORNIA'S
CONSTITUTION: 

"HAD THE ACT MADE MONDAY, INSTEAD OF SUNDAY, A DAY OF COMPULSORY
REST, THE CONSTITUTIONAL QUESTION WOULD HAVE BEEN THE SAME.  THE FACT
THAT THE CHRISTIAN VOLUNTARILY KEEPS HOLY THE FIRST DAY OF THE WEEK,
DOES NOT AUTHORIZE THE LEGISLATURE TO MAKE THAT OBSERVANCE COMPULSORY. 
THE LEGISLATURE CAN NOT COMPEL THE CITIZEN TO DO THAT WHICH THE
CONSTITUTION LEAVES HIM FREE TO DO OR OMIT, AT HIS ELECTION.  THE ACT
VIOLATES AS MUCH THE RELIGIOUS FREEDOM OF THE CHRISTIAN AS OF THE JEW. 
BECAUSE THE CONSCIENTIOUS VIEWS OF THE CHRISTIAN COMPEL HIM TO KEEP
SUNDAY AS A SABBATH, HE HAS THE RIGHT TO OBJECT, WHEN THE LEGISLATURE
INVADES HIS FREEDOM OF RELIGIOUS WORSHIP, AND ASSUMES THE POWER TO
COMPEL HIM TO DO THAT WHICH HE HAS THE RIGHT TO OMIT IF HE PLEASES. 
THE PRINCIPLE IS THE SAME, WHETHER THE ACT OF THE LEGISLATURE COMPELS
US TO THAT WHICH WE WISH TO DO, OR NOT TO DO  ...  . 

"UNDER THE CONSTITUTION OF THIS STATE, THE LEGISLATURE CAN NOT PASS
ANY ACT, THE LEGITIMATE EFFECT OF WHICH IS FORCIBLY TO ESTABLISH ANY
MERELY RELIGIOUS TRUTH, OR ENFORCE ANY MERELY RELIGIOUS OBSERVANCES. 
THE LEGISLATURE HAS NO POWER OVER SUCH A SUBJECT.  WHEN, THEREFORE, THE
CITIZEN IS SOUGHT TO BE COMPELLED BY THE LEGISLATURE TO DO ANY
AFFIRMATIVE RELIGIOUS ACT, OR TO REFRAIN FROM DOING ANYTHING, BECAUSE
IT VIOLATES SIMPLY A RELIGIOUS PRINCIPLE OR OBSERVANCE, THE ACT IS
UNCONSTITUTIONAL."  ID., AT 513-515. 

THE COURT PICKS AND CHOOSES LANGUAGE FROM VARIOUS DECISIONS TO
BOLSTER ITS CONCLUSION THAT THESE SUNDAY LAWS IN THE MODERN SETTING ARE
"CIVIL REGULATIONS."  NO MATTER HOW MUCH IS WRITTEN, NO MATTER WHAT IS
SAID, THE PARENTAGE OF THESE LAWS IS THE FOURTH COMMANDMENT; AND THEY
SERVE AND SATISFY THE RELIGIOUS PREDISPOSITIONS OF OUR CHRISTIAN
COMMUNITIES.  (FN6)  AFTER ALL, THE LABELS A STATE PLACES ON ITS LAWS
ARE NOT BINDING ON US WHEN WE ARE CONFRONTED WITH A CONSTITUTIONAL
DECISION.  WE REACH OUR OWN CONCLUSION AS TO THE CHARACTER, EFFECT, AND
PRACTICAL OPERATION OF THE REGULATION IN DETERMINING ITS
CONSTITUTIONALITY.  CARPENTER V. SHAW, 280 U.S. 363, 367-368; DYER V.
SIMS, 341 U.S. 22, 29; MEMPHIS STEAM LAUNDRY V. STONE, 342 U.S. 389,
392; SOCIETY FOR SAVINGS V. BOWERS, 349 U.S. 143, 151; GOMILLION V.
LIGHTFOOT, 364 U.S. 339, 341-342. 

IT SEEMS TO ME PLAIN THAT BY THESE LAWS THE STATES COMPEL ONE, UNDER
SANCTION OF LAW, TO REFRAIN FROM WORK OR RECREATION ON SUNDAY BECAUSE
OF THE MAJORITY'S RELIGIOUS VIEWS ABOUT THAT DAY.  THE STATE BY LAW
MAKES SUNDAY A SYMBOL OF RESPECT OR ADHERENCE.  REFRAINING FROM WORK OR
RECREATION IN DEFERENCE TO THE MAJORITY'S RELIGIOUS FEELINGS ABOUT
SUNDAY IS WITHIN EVERY PERSON'S CHOICE.  BY WHAT AUTHORITY CAN
GOVERNMENT COMPEL IT? 

CASES ARE PUT WHERE ACTS THAT ARE IMMORAL BY OUR STANDARDS BUT NOT BY
THE STANDARDS OF OTHER RELIGIOUS GROUPS ARE MADE CRIMINAL.  THAT
CATEGORY OF CASES, UNTIL TODAY, HAS BEEN A VERY RESTRICTED ONE CONFINED
TO POLYGAMY (REYNOLDS V. UNITED STATES, 98 U.S. 145) AND OTHER EXTREME
SITUATIONS.  THE LATEST EXAMPLE IS PRINCE V. MASSACHUSETTS, 321 U.S.
158, WHICH UPHELD A STATUTE MAKING IT CRIMINAL FOR A CHILD UNDER TWELVE
TO SELL PAPERS, PERIODICALS, OR MERCHANDISE ON A STREET OR IN ANY
PUBLIC PLACE.  IT WAS SUSTAINED IN SPITE OF THE FINDING THAT THE CHILD
THOUGHT IT WAS HER RELIGIOUS DUTY TO PERFORM THE ACT.  BUT THAT WAS A
NARROW HOLDING WHICH TURNED ON THE EFFECT WHICH STREET SOLICITATION
MIGHT HAVE ON THE CHILD-SOLICITOR: 

"THE STATE'S AUTHORITY OVER CHILDREN'S ACTIVITIES IS BROADER THAN
OVER LIKE ACTIONS OF ADULTS.  THIS IS PECULIARLY TRUE OF PUBLIC
ACTIVITIES AND IN MATTERS OF EMPLOYMENT.  A DEMOCRATIC SOCIETY RESTS,
FOR ITS CONTINUANCE, UPON THE HEALTHY, WELL-ROUNDED GROWTH OF YOUNG
PEOPLE INTO FULL MATURITY AS CITIZENS, WITH ALL THAT IMPLIES.  IT MAY
SECURE THIS AGAINST IMPEDING RESTRAINTS AND DANGERS WITHIN A BROAD
RANGE OF SELECTION.  AMONG EVILS MOST APPROPRIATE FOR SUCH ACTION ARE
THE CRIPPLING EFFECTS OF CHILD EMPLOYMENT, MORE ESPECIALLY IN PUBLIC
PLACES, AND THE POSSIBLE HARMS ARISING FROM OTHER ACTIVITIES SUBJECT TO
ALL THE DIVERSE INFLUENCES OF THE STREET.  IT IS TOO LATE NOW TO DOUBT
THAT LEGISLATION APPROPRIATELY DESIGNED TO REACH SUCH EVILS IS WITHIN
THE STATE'S POLICE POWER, WHETHER AGAINST THE PARENT'S CLAIM TO CONTROL
OF THE CHILD OR ONE THAT RELIGIOUS SCRUPLES DICTATE CONTRARY ACTION." 
ID., 168-169. 

NONE OF THE ACTS INVOLVED HERE IMPLICATES MINORS.  NONE OF THE
ACTIONS MADE CONSTITUTIONALLY CRIMINAL TODAY INVOLVES THE DOING OF ANY
ACT THAT ANY SOCIETY HAS DEEMED TO BE IMMORAL. 

THE CONDUCT HELD CONSTITUTIONALLY CRIMINAL TODAY EMBRACES THE SELLING
OF PURE, NOT IMPURE, FOOD; WHOLESOME, NOT NOXIOUS, ARTICLES.  ADULTS,
NOT MINORS, ARE INVOLVED.  THE INNOCENT ACTS, NOW CONSTITUTIONALLY
CLASSIFIED AS CRIMINAL, EMPHASIZE THE DRASTIC BREAK WE MAKE WITH
TRADITION. 

THESE LAWS ARE SUSTAINED BECAUSE, IT IS SAID, THE FIRST AMENDMENT IS
CONCERNED WITH RELIGIOUS CONVICTIONS OR OPINION, NOT WITH CONDUCT.  BUT
IT IS A STRANGE BILL OF RIGHTS THAT MAKES IT POSSIBLE FOR THE DOMINANT
RELIGIOUS GROUP TO BRING THE MINORITY TO HEEL BECAUSE THE MINORITY, IN
THE DOING OF ACTS WHICH INTRINSICALLY ARE WHOLESOME AND NOT ANTISOCIAL,
DOES NOT DEFER TO THE MAJORITY'S RELIGIOUS BELIEFS.  SOME HAVE
RELIGIOUS SCRUPLES AGAINST EATING PORK.  THOSE SCRUPLES, NO MATTER HOW
BIZARRE THEY MIGHT SEEM TO SOME, ARE WITHIN THE AMBIT OF THE FIRST
AMENDMENT.  SEE UNITED STATES V. BALLARD, 322 U.S. 78, 87.  IS IT
POSSIBLE THAT A MAJORITY OF A STATE LEGISLATURE HAVING THOSE RELIGIOUS
SCRUPLES COULD MAKE IT CRIMINAL FOR THE NONBELIEVER TO SELL PORK?  SOME
HAVE RELIGIOUS SCRUPLES AGAINST SLAUGHTERING CATTLE.  COULD A STATE
LEGISLATURE, DOMINATED BY THAT GROUP, MAKE IT CRIMINAL TO RUN AN
ABATTOIR? 

THE COURT BALANCES THE NEED OF THE PEOPLE FOR REST, RECREATION, LATE
SLEEPING, FAMILY VISITING AND THE LIKE AGAINST THE COMMAND OF THE FIRST
AMENDMENT THAT NO ONE NEED BOW TO THE RELIGIOUS BELIEFS OF ANOTHER. 
THERE IS IN THIS REALM NO ROOM FOR BALANCING.  I SEE NO PLACE FOR IT IN
THE CONSTITUTIONAL SCHEME.  A LEGISLATURE OF CHRISTIANS CAN NO MORE
MAKE MINORITIES CONFORM TO THEIR WEEKLY REGIME THAN A LEGISLATURE OF
MOSLEMS, OR A LEGISLATURE OF HINDUS.  THE RELIGIOUS REGIME OF EVERY
GROUP MUST BE RESPECTED - UNLESS IT CROSSES THE LINE OF CRIMINAL
CONDUCT.  BUT NO ONE CAN BE FORCED TO COME TO A HALT BEFORE IT, OR
REFRAIN FROM DOING THINGS THAT WOULD OFFEND IT.  THAT IS MY READING OF
THE ESTABLISHMENT CLAUSE AND THE FREE EXERCISE CLAUSE.  ANY OTHER
READING IMPORTS, I FEAR, AN ELEMENT COMMON IN OTHER SOCIETIES BUT
FOREIGN TO US.  THUS NIGERIA IN ARTICLE 23 OF HER CONSTITUTION, AFTER
GUARANTEEING RELIGIOUS FREEDOM, ADDS, "NOTHING IN THIS SECTION SHALL
INVALIDATE ANY LAW THAT IS REASONABLY JUSTIFIED IN A DEMOCRATIC SOCIETY
IN THE INTEREST OF DEFENCE, PUBLIC SAFETY, PUBLIC ORDER, PUBLIC
MORALITY, OR PUBLIC HEALTH."  AND SEE ARTICLE 25 OF THE INDIAN
CONSTITUTION.  THAT MAY BE A DESIRABLE PROVISION.  BUT WHEN THE COURT
ADDS IT TO OUR FIRST AMENDMENT, AS IT DOES TODAY, WE MAKE A SHARP BREAK
WITH THE AMERICAN IDEAL OF RELIGIOUS LIBERTY AS ENSHRINED IN THE FIRST
AMENDMENT. 

THE STATE CAN, OF COURSE, REQUIRE ONE DAY OF REST A WEEK:  ONE DAY
WHEN EVERY SHOP OR FACTORY IS CLOSED.  QUITE A FEW STATES MAKE THAT
REQUIREMENT.  (FN7)  THEN THE "DAY OF REST" BECOMES PURELY AND SIMPLY A
HEALTH MEASURE.  BUT THE SUNDAY LAWS OPERATE DIFFERENTLY.  THEY FORCE
MINORITIES TO OBEY THE MAJORITY'S RELIGIOUS FEELINGS OF WHAT IS DUE AND
PROPER FOR A CHRISTIAN COMMUNITY; THEY PROVIDE A COERCIVE SPUR TO THE
"WEAKER BRETHREN," TO THOSE WHO ARE INDIFFERENT TO THE CLAIMS OF A
SABBATH THROUGH APATHY OR SCRUPLE.  CAN THERE BE ANY DOUBT THAT
CHRISTIANS, NOW ALIGNED VIGOROUSLY IN FAVOR OF THESE LAWS, WOULD BE AS
STRONGLY OPPOSED IF THEY WERE PROSECUTED UNDER A MOSLEM LAW THAT
FORBADE THEM FROM ENGAGING IN SECULAR ACTIVITIES ON DAYS THAT VIOLATED
MOSLEM SCRUPLES? 

THERE IS AN "ESTABLISHMENT" OF RELIGION IN THE CONSTITUTIONAL SENSE
IF ANY PRACTICE OF ANY RELIGIOUS GROUP HAS THE SANCTION OF LAW BEHIND
IT.  THERE IS AN INTERFERENCE WITH THE "FREE EXERCISE" OF RELIGION OF
WHAT IN CONSCIENCE ONE CAN DO OR OMIT DOING IS REQUIRED BECAUSE OF THE
RELIGIOUS SCRUPLES OF THE COMMUNITY.  HENCE I WOULD DECLARE EACH OF
THOSE LAWS UNCONSTITUTIONAL AS APPLIED TO THE COMPLAINING PARTIES,
WHETHER OR NOT THEY ARE MEMBERS OF A SECT WHICH OBSERVES AS ITS SABBATH
A DAY OTHER THAN SUNDAY. 

WHEN THESE LAWS ARE APPLIED TO ORTHODOX JEWS, AS THEY ARE IN NO. 11
AND IN NO. 67, OR TO SABBATARIANS THEIR VICE IS ACCENTUATED.  IF THE
SUNDAY LAWS ARE CONSTITUTIONAL, KOSHER MARKETS ARE ON A FIVE-DAY WEEK. 
THUS THOSE LAWS PUT AN ECONOMIC PENALTY ON THOSE WHO OBSERVE SATURDAY
RATHER THAN SUNDAY AS THE SABBATH.  FOR THE ECONOMIC PRESSURES ON THESE
MINORITIES, CREATED BY THE FACT THAT OUR COMMUNITIES ARE PREDOMINANTLY
SUNDAY-MINDED, THERE IS NO RECOURSE.  WHEN, HOWEVER, THE STATE USES ITS
COERCIVE POWERS - HERE THE CRIMINAL LAW - TO COMPEL MINORITIES TO
OBSERVE A SECOND SABBATH, NOT THEIR OWN, THE STATE UNDERTAKES TO AID
AND "PREFER ONE RELIGION OVER ANOTHER" - CONTRARY TO THE COMMAND OF THE
CONSTITUTION.  SEE EVERSON V. BOARD OF EDUCATION, SUPRA, 15. 

IN LARGE MEASURE THE HISTORY OF THE RELIGIOUS CLAUSE OF THE FIRST
AMENDMENT WAS A STRUGGLE TO BE FREE OF ECONOMIC SANCTIONS FOR ADHERENCE
TO ONE'S RELIGION.  EVERSON V. BOARD OF EDUCATION, SUPRA, 11-14.  A
SMALL TAX WAS IMPOSED IN VIRGINIA FOR RELIGIOUS EDUCATION.  JEFFERSON
AND MADISON LED THE FIGHT AGAINST THE TAX, MADISON WRITING HIS FAMOUS
MEMORIAL AND REMONSTRANCE AGAINST THAT LAW.  ID., 12.  AS A RESULT, THE
TAX MEASURE WAS DEFEATED AND INSTEAD VIRGINIA'S FAMOUS "BILL FOR
RELIGIOUS LIBERTY," WRITTEN BY JEFFERSON, WAS ENACTED.  ID., 12.  THAT
ACT PROVIDED:  (FN8) 

"THAT NO MAN SHALL BE COMPELLED TO FREQUENT OR SUPPORT ANY RELIGIOUS
WORSHIP, PLACE, OR MINISTRY WHATSOEVER, NOR SHALL BE ENFORCED,
RESTRAINED, MOLESTED, OR BURTHENED IN HIS BODY OR GOODS, NOR SHALL
OTHERWISE SUFFER ON ACCOUNT OF HIS RELIGIOUS OPINIONS OR BELIEF  ...
." 

THE REVERSE SIDE OF AN "ESTABLISHMENT" IS A BURDEN ON THE "FREE
EXERCISE" OF RELIGION.  RECEIPT OF FUNDS FROM THE STATE BENEFITS THE
ESTABLISHED CHURCH DIRECTLY; LAYING AN EXTRA TAX ON NONMEMBERS BENEFITS
THE ESTABLISHED CHURCH INDIRECTLY.  CERTAINLY THE PRESENT SUNDAY LAWS
PLACE ORTHODOX JEWS AND SABBATARIANS UNDER EXTRA BURDENS BECAUSE OF
THEIR RELIGIOUS OPINIONS OR BELIEFS.  REQUIRING THEM TO ABSTAIN FROM
THEIR TRADE OR BUSINESS ON SUNDAY REDUCES THEIR WORK-WEEK TO FIVE DAYS,
UNLESS THEY VIOLATE THEIR RELIGIOUS SCRUPLES.  THIS PLACES THEM AT A
COMPETITIVE DISADVANTAGE AND PENALIZES THEM FOR ADHERING TO THEIR
RELIGIOUS BELIEFS. 

"THE SANCTION IMPOSED BY THE STATE FOR OBSERVING A DAY OTHER THAN
SUNDAY AS HOLY TIME IS CERTAINLY MORE SERIOUS ECONOMICALLY THAN THE
IMPOSITION OF A LICENSE TAX FOR PREACHING," (FN9) WHICH WE STRUCK DOWN
IN MURDOCK V. PENNSYLVANIA, 319 U.S. 105, AND IN FOLLETT V. MCCORMICK,
321 U.S. 573.  THE SPECIAL PROTECTION WHICH SUNDAY LAWS GIVE THE
DOMINANT RELIGIOUS GROUPS AND THE PENALTY THEY PLACE ON MINORITIES
WHOSE HOLY DAY IS SATURDAY CONSTITUTE, IN MY VIEW, STATE INTERFERENCE
WITH THE "FREE EXERCISE" OF RELIGION.  (FN10) 

I DISSENT FROM APPLYING CRIMINAL SANCTIONS AGAINST ANY OF THESE
COMPLAINANTS SINCE TO DO SO IMPLICATES THE STATES IN RELIGIOUS MATTERS
CONTRARY TO THE CONSTITUTIONAL MANDATE.  (FN11)  REVEREND ALLAN C.
PARKER, JR., PASTOR OF THE SOUTH PARK PRESBYTERIAN CHURCH, SEATTLE,
WASHINGTON, HAS STATED MY VIEWS: 

"WE FORGET THAT, THOUGH SUNDAY-WORSHIPING CHRISTIANS ARE IN THE
MAJORITY IN THIS COUNTRY AMONG RELIGIOUS PEOPLE, WE DO NOT HAVE THE
RIGHT TO FORCE OUR PRACTICE UPON THE MINORITY.  ONLY A CHURCH WHICH
DEEMS ITSELF WITHOUT ERROR AND INTOLERANT OF ERROR CAN JUSTIFY ITS
INTOLERANCE OF THE MINORITY. 

"A JEWISH FRIEND OF MINE RUNS A SMALL BUSINESS ESTABLISHMENT. 
BECAUSE MY FRIEND IS A JEW HIS BUSINESS IS CLOSED EACH SATURDAY.  HE
RESPECTS MY RIGHT TO WORSHIP ON SUNDAY AND I RESPECT HIS RIGHT TO
WORSHIP ON SATURDAY.  BUT THERE IS A DIFFERENCE.  AS A JEW HE CLOSES
HIS STORE VOLUNTARILY SO THAT HE WILL BE ABLE TO WORSHIP HIS GOD IN HIS
FASHION.  FINE, BUT, AS A JEW LIVING UNDER CHRISTIAN INSPIRED SUNDAY
CLOSING LAWS, HE IS REQUIRED TO CLOSE HIS STORE ON SUNDAY SO THAT I
WILL BE ABLE TO WORSHIP MY GOD IN MY FASHION.    "AROUND THE CORNER
FROM MY CHURCH THERE IS A SMALL SEVENTH DAY BAPTIST CHURCH.  I DISAGREE
WITH THE SEVENTH DAY BAPTISTS ON MANY POINTS OF DOCTRINE.  AMONG THE
TENETS OF THEIR FAITH WITH WHICH I DISAGREE IS THE 'SEVENTH DAY
WORSHIP.'  BUT THEY ARE GOOD NEIGHBORS AND FELLOW CHRISTIANS, AND WHILE
WE DISAGREE WE RESPECT ONE ANOTHER.  THE GOOD PEOPLE OF MY CONGREGATION
SET ASIDE THEIR JOBS ON THE FIRST OF THE WEEK AND GATHER IN GOD'S HOUSE
FOR WORSHIP.  OF COURSE, IT IS EASY FOR THEM TO SET ASIDE THEIR JOBS
SINCE SUNDAY CLOSING LAWS - INSPIRED BY THE CHURCH - KEEP THEM FROM
THEIR WORK.  AT THE SEVENTH DAY BAPTIST CHURCH THE PEOPLE SET ASIDE
THEIR JOBS ON SATURDAY TO WORSHIP GOD.  THIS TAKES REAL SACRIFICE
BECAUSE SATURDAY IS A GOOD DAY FOR BUSINESS.  BUT THAT IS NOT ALL -
THEY ARE REQUIRED BY LAW TO SET ASIDE THEIR JOBS ON SUNDAY WHILE MORE
ORTHODOX CHRISTIANS WORSHIP. 

"  ...  I DO NOT BELIEVE THAT BECAUSE I HAVE SET ASIDE SUNDAY AS A
HOLY DAY I HAVE THE RIGHT TO FORCE ALL MEN TO SET ASIDE THAT DAY ALSO. 
WHY SHOULD MY FAITH BE FAVORED BY THE STATE OVER ANY OTHER MAN'S
FAITH?"  (FN12) 

WITH ALL DEFERENCE, NONE OF THE OPINIONS FILED TODAY IN SUPPORT OF
THE SUNDAY LAWS HAS ANSWERED THAT QUESTION. 

FN1  THE PROBLEMS OF PLURALISM, DANFORTH LECTURES, MIAMI UNIVERSITY,
OXFORD, OHIO (1960).  OTHER WRITERS SUGGEST THAT AMERICA IS STILL
SUBJECT TO A CUSTOMARY AND NONLEGAL "PROTESTANT ESTABLISHMENT" WHICH
COMES TO THE SURFACE ONLY ON CERTAIN POLITICAL ISSUES.  THUS, A RABBI
ARTHUR HARTZBERG WAS ABLE TO ANALYZE THE "RELIGIOUS ISSUE" OF THE
RECENT PRESIDENTIAL CAMPAIGN IN THESE TERMS: 

"AS WE HAVE SEEN, THE FIRST AMENDMENT WAS THE BATTLEGROUND, AT THE
END OF THE 18TH CENTURY, OF A MAJOR TRANSITION IN AMERICAN SOCIETY IN
WHICH THE OLD PROTESTANT ESTABLISHMENT WAS FORCED TO YIELD TO THE NEWER
ETHOS OF PROTESTANT NON-CONFORMITY.  TODAY IN AMERICAN SOCIETY, WE ARE
WITNESSING A CHANGE PERHAPS AS IMPORTANT - THE FULL ENTRY OF THE POST
BELLUM IMMIGRANT GROUPS INTO THE NATIONAL LIFE.  THOUGH THE BATTLE ONCE
AGAIN SEEMS TO BE RAGING AROUND THE FIRST AMENDMENT, IT WOULD APPEAR
FROM THE FOREGOING ANALYSIS THAT THE TRUE ISSUE IS NOT THE SEPARATION
OF CHURCH AND STATE, BUT THE SYMBOLIC SIGNIFICANCE FOR AMERICAN LIFE
AND CULTURE OF HAVING A NON-PROTESTANT - WHETHER HE BE A CATHOLIC, A
JEW, OR AN AVOWED ATHEIST - AS PRESIDENT OF THE UNITED STATES." 
HARTZBERG, "THE PROTESTANT ESTABLISHMENT,' CATHOLIC DOGMA, AND THE
PRESIDENCY," COMMENTARY (OCTOBER 1960), P. 285. 

FN2  BLACKSTONE'S COMMENTARIES, BK, IV, C. 4, ENTITLED "OF OFFENSES
AGAINST GOD AND RELIGION," SAYS IN PART: 

"IX.  PROFANATION OF THE LORD'S DAY, VULGARLY (BUT IMPROPERLY) CALLED
SABBATH-BREAKING, IS A NINTH OFFENCE AGAINST GOD AND RELIGION, PUNISHED
BY THE MUNICIPAL LAW OF ENGLAND.  FOR, BESIDES THE NOTORIOUS INDECENCY
AND SCANDAL OF PERMITTING ANY SECULAR BUSINESS TO BE PUBLICLY
TRANSACTED ON THAT DAY, IN A COUNTRY PROFESSING CHRISTIANITY, AND THE
CORRUPTION OF MORALS WHICH USUALLY FOLLOWS IT PROFANATION, THE KEEPING
ONE DAY IN SEVEN HOLY, AS A TIME OF RELAXATION AND REFRESHMENT AS WELL
AS FOR PUBLIC WORSHIP, IS OF ADMIRABLE SERVICE TO A STATE, CONSIDERED
MERELY AS A CIVIL INSTITUTION.  IT HUMANIZES BY THE HELP OF
CONVERSATION AND SOCIETY THE MANNERS OF THE LOWER CLASSES; WHICH WOULD
OTHERWISE DEGENERATE INTO A SORDID FEROCITY AND SAVAGE SELFISHNESS OF
SPIRIT:  IT ENABLES THE INDUSTRIOUS WORKMAN TO PURSUE HIS OCCUPATION IN
THE ENSUING WEEK WITH HEALTH AND CHEERFULNESS:  IT IMPRINTS ON THE
MINDS OF THE PEOPLE THAT SENSE OF THEIR DUTY TO GOD, SO NECESSARY TO
MAKE THEM GOOD CITIZENS; BUT WHICH YET WOULD BE WORN OUT AND DEFACED BY
AN UNREMITTED CONTINUANCE OF LABOUR, WITHOUT ANY STATED TIMES OF
RECALLING THEM TO THE WORSHIP OF THEIR MAKER." 

FN3  SEE ALSO ULLNER V. OHIO, 358 U.S. 131; KIDD V. OHIO, 358 U.S.
132; MCGEE V. NORTH CAROLINA, 346 U.S. 802; CF. GROCHOWIAK V.
PENNSYLVANIA, 358 U.S. 47; GUNDAKER CENT. MOTORS, INC., V. GASSERT, 354
U.S. 933; TOWERY V. NORTH CAROLINA, 347 U.S. 925. 

FN4  AS RESPECTS THE FIRST AMENDMENT THE COURT SAID: 

"IT DOES NOT SET UP A CHURCH, MAKE ATTENDANCE UPON RELIGIOUS WORSHIP
COMPULSORY, IMPOSE RESTRICTIONS UPON EXPRESSION OF RELIGIOUS BELIEF,
WORK A RESTRICTION UPON THE EXERCISE OF RELIGION ACCORDING TO THE
DICTATES OF ONE'S CONSCIENCE, PROVIDE COMPULSORY SUPPORT, BY TAXATION
OR OTHERWISE, OF RELIGIOUS INSTITUTIONS, NOR IN ANY WAY ENFORCE OR
PROHIBIT RELIGION."  302 N.Y., AT 79, 96 N.E.2D, AT 186. 

FN5  CF. BOWMAN V. SECULAR SOCIETY, LTD. (1917) A.C. 406, 464
(OPINION OF LORD SUMNER). 

FN6  TODAY WE RETREAT FROM THAT JEALOUS REGARD FOR RELIGIOUS FREEDOM
WHICH STRUCK DOWN A STATUTE BECAUSE IT WAS "A HANDY IMPLEMENT FOR
DISGUISED RELIGIOUS PERSECUTION."  BOARD OF EDUCATION V. BARNETTE,
SUPRA, 644 (CONCURRING OPINION).  IT DOES NOT DO TO SAY, AS DOES THE
MAJORITY, "SUNDAY IS A DAY APART FROM ALL OTHERS.  THE CAUSE IS
IRRELEVANT; THE FACT EXISTS."  THE CAUSE OF SUNDAY'S BEING A DAY APART
IS DETERMINATIVE; THAT CAUSE SHOULD NOT BE SWEPT ASIDE BY A DECLARATION
OF PAROCHIAL EXPERIENCE. 

THE JUDGMENT THE COURT IS CALLED UPON TO MAKE IS A DELICATE ONE.  BUT
IN THE LIGHT OF OUR SOCIETY'S RELIGIOUS HISTORY IT CANNOT BE AVOIDED BY
ARGUING THAT A HYPOTHETICAL LAWGIVER COULD FIND NONRELIGIOUS REASONS
FOR FIXING SUNDAY AS A DAY OF REST.  THE EFFECT OF THAT HISTORY IS,
INDEED, STILL WITH US.  SABBATH IS NO LESS SABBATH BECAUSE IT IS NOW
LESS SEVERE IN ITS STRICTURES, OR BECAUSE IT HAS COME TO BE EXPEDIENT
FOR SOME NONRELIGIOUS PURPOSES.  THE CONSTITUTION MUST GUARD AGAINST
"SOPHISTICATED AS WELL AS SIMPLE-MINDED MODES" OF VIOLATION.  LANE V.
WILSON, 307 U.S. 268, 275. 

FN7  OR THE STATE MAY MERELY FIX A MAXIMUM HOURS' LIMITATION IN OTHER
TERMS, EITHER FOR PARTICULAR CLASSES OF EMPLOYEES, PARTICULAR CLASSES
OF EMPLOYMENT, OR STRAIGHT ACROSS THE BOARD.  SEE LAWS AND DECISIONS
GATHERED IN 1 & 2 CCH LABOR LAW REPORTER, STATE LAWS, PAR. 44,500 ET
SEQ. ON ARGUMENT, THERE WAS MUCH MADE OVER THE DESIRABILITY OF FIXING A
SINGLE DAY FOR REST, EITHER ON GROUNDS OF ADMINISTRATIVE CONVENIENCE OR
ON GROUNDS OF THE NEED FOR LEISURE.  IN LIGHT OF THE HISTORY AND
MEANING OF THE SHARED LEISURE OF SUNDAY, THIS AIM STILL HAS RELIGIOUS
OVERTONES.  CF. JOSEPH BURSTYN, INC., V. WILSON, 343 U.S. 495, 505. 

FN8  12 HENING, STAT. VA. (1823), P. 86. 

FN9  PFEFFER, CHURCH, STATE, AND FREEDOM (1953), P. 235. 

FN10  "  ...  ASSUMING THAT THE IDLE SUNDAY IS AN 'INSTITUTION' OF
CHRISTIANITY, DOES A STATUTE WHICH FOR THAT REASON REQUIRES MEN TO BE
IDLE ON SUNDAY GIVE A PREFERENCE TO ONE PARTICULAR RELIGION?  HOW CAN
IT BE MAINTAINED THAT IT DOES NOT, UNLESS A SIMILAR INSTITUTION OF
EVERY OTHER RELIGION BE HONORED WITH LIKE RECOGNITION?  AS TO THE
INDIVIDUAL ASPECT OF THE CASE, IF THE LAW IS TO ASSIST CHRISTIANITY BY
MAKING IDLENESS COMPULSORY ON ITS SACRED DAY, THEREBY PRESUMABLY
COMMENDING IT TO THOSE WHO REJECT IT, AND STRENGTHENING ITS HOLD UPON
ITS DEVOTEES, IS THERE NOT A 'PREFERENCE' GIVEN TO A RELIGION, UNLESS
THE HEBREW AND ALL OTHER FAITHS HAVE A LIKE RECOGNITION EXTENDED TO
THEIR SACRED DAYS?  AND AS TO THE SOCIAL ASPECT, ASSUMING THAT IT IS AN
ADVANTAGE TO HAVE OTHER PEOPLE KEPT EXTRAORDINARILY QUIET WHILE WE
PRAY, AND TO HAVE AN ESPECIAL 'PEACE' ESTABLISHED BY LAW ON THE DAY WE
SELECT FOR PUBLIC WORSHIP, AND THAT WE HAVE THE RIGHT TO PREVENT OUR
NEIGHBOR FROM EARNING HIS LIVING AT A CERTAIN TIME BECAUSE THE PRACTICE
OF HIS AVOCATION INTERFERES WITH OUR RELIGIOUS EXERCISES, MUST IT NOT
BE CALLED A 'PREFERENCE' TO DO ALL THIS FOR THE CHRISTIAN'S BENEFIT,
AND NOT TO DO IT FOR THE BENEFIT OF THE FOLLOWERS OF MOSES, OR MAHOMET,
OR CONFUCIUS OR BUDDHA?"  RINGGOLD, LEGAL ASPECTS OF THE FIRST DAY OF
THE WEEK (1891), PP. 68-69. 

FN11  IT IS ARGUED THAT THE WIDE ACCEPTANCE OF SUNDAY LAWS AT THE
TIME OF THE ADOPTION OF THE FIRST AMENDMENT MAKES IT FAIR TO ASSUME
THAT THEY WERE NEVER THOUGHT TO COME WITHIN THE "ESTABLISHMENT" CLAUSE,
AND THAT THE PRESENCE IN THE COUNTRY AT THAT TIME OF LARGE NUMBERS OF
ORTHODOX JEWS MAKES IT CLEAR THAT THOSE LAWS WERE NOT THOUGHT TO RUN
AFOUL OF THE "FREE EXERCISE" CLAUSE.  THOSE REASONS WOULD BE COMPELLING
IF THE FIRST AMENDMENT HAD, AT THE TIME OF ITS ADOPTION, BEEN
APPLICABLE TO THE STATES.  BUT SINCE IT WAS THEN APPLICABLE ONLY TO THE
FEDERAL GOVERNMENT, IT HAD NO POSSIBLE BEARING ON THE SUNDAY LAWS OF
THE STATES.  THE FOURTEENTH AMENDMENT, ADOPTED YEARS LATER, MADE THE
FIRST AMENDMENT APPLICABLE TO THE STATES FOR THE FIRST TIME.  THAT
AMENDMENT HAS HAD UNSETTLING EFFECTS ON MANY CUSTOMS AND PRACTICES - A
PROCESS CONSISTENT WITH JEFFERSON'S PRECEPT "THAT LAWS AND INSTITUTIONS
MUST GO HAND IN HAND WITH THE PROGRESS OF THE HUMAN MIND."  15 THE
WRITINGS OF THOMAS JEFFERSON (MEMORIAL ED. 1904), P. 41. 

MOREOVER, THERE IS SOLID EVIDENCE TO SUGGEST THAT THE JEWISH
POPULATION OF OUR NATION WAS THEN MINUSCULE.  "DESPITE THE ROSEATE
ESTIMATES OF SOME JEWISH WRITERS ON THE SUBJECT, IT IS SAFE TO SAY
THERE WERE NEVER MORE THAN ONE THOUSAND JEWS LIVING AMONG THE THREE
MILLION AND MORE INHABITANTS OF THE COLONIES.  THE NEWPORT COMMUNITY IN
ITS HEYDAY TOTALED AT MOST ONE HUNDRED AND FIFTY TO ONE HUNDRED AND
SEVENTY-FIVE JEWS.  PERHAPS NEW YORK HAD AS MANY, OR MORE. 
PHILADELPHIA, CHARLESTON AND SAVANNAH WERE CERTAINLY SMALLER
COMMUNITIES.  EVEN WHEN COMBINING THEIR JEWISH POPULATIONS WITH THE
LONELY GROUPS IN THE BACK COUNTY, WE STILL ARE FAR FROM AN IMPRESSIVE
TOTAL."  GOODMAN, AMERICAN OVERTURE:  JEWISH RIGHTS IN COLONIAL TIMES
(1947), P. 3. 

FN12  56 LIBERTY, JANUARY-FEBRUARY 1961, NO. 1, PP. 21-22. 
..END :












TWO GUYS FROM HARRISON-ALLENTOWN, INC. V. MCGINLEY 366 U.S. 582 


NO. 36.  ARGUED DECEMBER 8, 1960 - DECIDED MAY 29, 1961 - 179 F. SUPP.
944, AFFIRMED. 


APPELLANT, A CORPORATION OPERATING A LARGE DISCOUNT DEPARTMENT STORE
LOCATED ON A HIGHWAY IN A SUBURBAN SECTION OF LEHIGH COUNTY, PA., SUED
IN A FEDERAL DISTRICT COURT TO ENJOIN ENFORCEMENT OF CERTAIN
PENNSYLVANIA SUNDAY CLOSING LAWS, CLAIMING THAT THEY WERE
UNCONSTITUTIONAL AND THAT THE COUNTY DISTRICT ATTORNEY WAS
DISCRIMINATING AGAINST IT.  ONE WAS A 1939 STATUTE WHICH PROHIBITED ALL
WORLDLY EMPLOYMENT OR BUSINESS ON SUNDAY, WITH NARROWLY DRAWN
EXCEPTIONS, ON PENALTY OF A FINE OF $4 OR 6 DAYS' IMPRISONMENT.  THE
OTHER WAS A SUPPLEMENTARY STATUTE ENACTED IN 1959 WHICH FORBADE THE
RETAIL SALE ON SUNDAY OF 20 SPECIFIED COMMODITIES, ON PENALTY OF A FINE
OF UP TO $100 FOR THE FIRST OFFENSE AND UP TO $200 FOR SUBSEQUENT
OFFENSES WITHIN A YEAR OR IMPRISONMENT FOR 30 DAYS IN DEFAULT THEREOF. 
THERE WERE MANY OTHER PENNSYLVANIA SUNDAY LAWS WHICH PROHIBITED
SPECIFIC ACTIVITIES ON SUNDAYS OR LIMITED THEM TO CERTAIN HOURS, PLACES
OR CONDITIONS.  HELD: 

1.  SINCE THE RELIEF SOUGHT WAS PROSPECTIVE ONLY, THE TERM OF OFFICE
OF THE DISTRICT ATTORNEY WAS ABOUT TO EXPIRE, AND APPELLANT'S EMPLOYEES
COULD DEFEND AGAINST ANY PENDING PROSECUTIONS ON THE GROUND OF
UNCONSTITUTIONAL DISCRIMINATION, THE DISTRICT COURT DID NOT ERR IN
REFUSING TO EXERCISE ITS INJUNCTIVE POWERS AT THAT TIME AGAINST ALLEGED
DISCRIMINATORY ENFORCEMENT BY THE COUNTY DISTRICT ATTORNEY.  PP. 588
589. 

2.  THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DECLINING TO
PASS ON THE CONSTITUTIONALITY OF THE 1939 STATUTE, ON THE GROUNDS THAT
THERE WAS NO IMMINENT THREAT OF APPELLANT BEING PROSECUTED UNDER IT AND
THAT THERE WAS A SUBSTANTIAL UNSETTLED QUESTION OF PENNSYLVANIA LAW AS
TO WHETHER IT HAD BEEN SUPERSEDED BY THE 1959 ACT AS TO THE SPECIFIC
COMMODITIES COVERED BY THE LATTER.  P. 589. 

3.  THE DISTRICT COURT DID NOT ABUSE ITS EQUITY POWER IN REFUSING TO
CONTINUE A PRELIMINARY INJUNCTION AGAINST ENFORCEMENT OF THE 1939
STATUTE AGAINST APPELLANT, SINCE THERE WAS NO IMMINENT THREAT OF
PROSECUTION.  P. 589. 

4.  THE 1959 ACT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  MCGOWAN V. MARYLAND, ANTE, P. 420.  PP. 589
592. 

5.  SINCE APPELLANT ALLEGES ONLY ECONOMIC INJURY TO ITSELF, IT HAS NO
STANDING TO RAISE THE QUESTION WHETHER THE STATUTE HERE INVOLVED
PROHIBITS THE FREE EXERCISE OF RELIGION; BUT IT DOES HAVE STANDING TO
RAISE THE QUESTION WHETHER IT IS A LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, WITHIN THE MEANING OF THE FIRST AMENDMENT.  MCGOWAN V.
MARYLAND, SUPRA.  P. 592. 

6.  IN THE LIGHT OF A CAREFUL EXAMINATION OF THE ENTIRETY OF THE
PRESENT LEGISLATION, THE RELEVANT JUDICIAL CHARACTERIZATIONS AND,
PARTICULARLY, THE LEGISLATIVE HISTORY LEADING TO THE PASSAGE OF THE
1959 ACT HERE INVOLVED, THAT ACT IS NOT A LAW RESPECTING AN
ESTABLISHMENT OF RELIGION, WITHIN THE MEANING OF THE FIRST AMENDMENT. 
MCGOWAN V. MARYLAND, SUPRA.  PP. 592-598. 

7.  THIS COURT REJECTS APPELLANT'S CONTENTION THAT THE STATE HAS
OTHER MEANS AT ITS DISPOSAL TO ACCOMPLISH ITS SECULAR PURPOSE THAT
WOULD NOT EVEN REMOTELY OR INCIDENTALLY GIVE STATE AID TO RELIGION. 
MCGOWAN V. MARYLAND, SUPRA.  P. 598. 

TWO GUYS FROM HARRISON-ALLENTOWN, INC., V. MCGINLEY, DISTRICT ATTORNEY,
LEHIGH COUNTY, PENNSYLVANIA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE PRIMARY QUESTIONS PRESENTED IN THIS CASE ARE WHETHER A
PENNSYLVANIA STATUTE ENACTED IN 1959 (FN1) WHICH MAKES UNLAWFUL THE
SUNDAY RETAIL SALE OF CERTAIN COMMODITIES, IMPOSING A FINE OF UP TO ONE
HUNDRED DOLLARS FOR THE FIRST OFFENSE, IS VIOLATIVE OF THE
CONSTITUTIONAL GUARANTEES OF EQUAL PROTECTION OF THE LAWS AND RELIGIOUS
FREEDOM. 

THIS CASE IS ESSENTIALLY THE SAME AS MCGOWAN V. MARYLAND, ANTE, P.
420, DECIDED TODAY.  THE MAJOR DIFFERENCES BETWEEN THE PENNSYLVANIA AND
MARYLAND SUNDAY CLOSING LAWS CONCERN THE SPECIFIC PROVISIONS FOR
EXEMPTIONS FROM THE GENERAL PROSCRIPTION OF SUNDAY SALES AND
ACTIVITIES.  THE RELIGIOUSLY ORIENTED BACKGROUNDS OF BOTH THE MARYLAND
AND PENNSYLVANIA STATUTES ARE STRIKINGLY SIMILAR ALTHOUGH THE
PENNSYLVANIA COLONY NEVER HAD AN ESTABLISHED CHURCH WHILE ONE DID EXIST
FOR A TIME IN MARYLAND.  WHILE THE PRONOUNCEMENTS OF THE SUPREME COURT
OF PENNSYLVANIA INDICATE THAT IT DISCLAIMED A RELIGIOUS PURPOSE FOR
SUNDAY CLOSING AT AN EARLIER DATE THAN DID THE MARYLAND COURT OF
APPEALS, LATER PENNSYLVANIA DECISIONS RETURNED TO RELIGIOUS PURPOSE
LANGUAGE WHILE THE MARYLAND OPINIONS CONSISTENTLY RESTED ON SECULAR
BASES.  ON THE OTHER HAND, THE LEGISLATIVE HISTORY OF THE MOST RECENT
PENNSYLVANIA SUNDAY PROVISIONS IS MORE STRIKING THAN THAT OF THE
MARYLAND LAWS IN PROVIDING SUPPORT FOR THE POSITION THAT TEMPORAL
CONSIDERATIONS PREOCCUPIED THE STATE LEGISLATURE. 

APPELLANT IS A CORPORATION WHICH OPERATES A LARGE DISCOUNT DEPARTMENT
STORE LOCATED ON A HIGHWAY IN LEHIGH COUNTY, PENNSYLVANIA.  FOR SOME
TIME PRIOR TO THE INSTANT LITIGATION, MCGINLEY, THE COUNTY DISTRICT
ATTORNEY, PROSECUTED A NUMBER OF APPELLANT'S EMPLOYEES FOR VIOLATING 18
PURDON'S PA. STAT. ANN. SEC. 4699.4, A SECTION OF THE PENNSYLVANIA
PENAL CODE OF 1939.  (FN2)  THIS STATUTE, WITH CERTAIN EXCEPTIONS,
GENERALLY FORBIDS ALL WORLDLY EMPLOYMENT, BUSINESS AND SPORTS ON
SUNDAY.  WORKS OF CHARITY AND NECESSITY ARE EXCEPTED, AS IS THE
DELIVERY OF MILK AND NECESSARIES BEFORE 9 A.M. AND AFTER 5 P.M.  TWO
RECENT AMENDMENTS ALSO EXCEPT WHOLESOME RECREATION (DEFINED AS GOLF,
TENNIS, BOATING, SWIMMING, BOWLING, BASKETBALL, PICNICKING, SHOOTING AT
INANIMATE TARGETS AND SIMILAR HEALTHFUL OR RECREATIONAL EXERCISES AND
ACTIVITIES) AND WORK IN CONNECTION WITH THE RENDERING OF SERVICE BY A
PUBLIC UTILITY.  VIOLATIONS OF THIS SECTION CARRY A PENALTY OF FOUR
DOLLARS.  APPELLANT THEN SOUGHT AN INJUNCTION IN THE COURT BELOW TO
RESTRAIN THE DISTRICT ATTORNEY FROM ENFORCING THIS STATUTE AGAINST IT,
ALLEGING THAT THE STATUTE WAS UNCONSTITUTIONAL FOR THE REASONS STATED
ABOVE AND BECAUSE THE DISTRICT ATTORNEY WAS DISCRIMINATING AGAINST
APPELLANT IN ENFORCING THE LAW.  ACCORDINGLY, A THREE-JUDGE COURT WAS
CONVENED PURSUANT TO 28 U.S.C.  SECS. 2281 AND 2284.  BEFORE TRIAL, THE
PENNSYLVANIA LEGISLATURE ENACTED THE 1959 PROVISION AND APPELLANT
AMENDED ITS COMPLAINT TO INCLUDE IT, ALLEGING THAT THE DISTRICT
ATTORNEY WAS THREATENING TO ENFORCE IT AGAINST APPELLANT. 

ALTHOUGH APPELLANT CHALLENGED ONLY THE STATUTORY SECTIONS MENTIONED
ABOVE, IN ORDER TO PROPERLY CONSIDER APPELLANT'S CONTENTIONS, THE WHOLE
BODY OF PENNSYLVANIA SUNDAY LAWS MUST BE EXAMINED.  (FN3)  AMONG THE
OTHER ACTIVITIES PROHIBITED ON SUNDAY BY THESE PENNSYLVANIA STATUTES
ARE SELLING OF MOTOR VEHICLES AND TRAILERS, OPERATION OF POOL ROOMS OR
BILLIARD ROOMS, CONDUCT OF BOXING OR WRESTLING MATCHES, HARNESS RACING,
PAWNBROKERING, CONTESTS FOR RETRIEVING DOGS, CATCHING OF FISH IN THE
DELAWARE RIVER BY USE OF A NET, AND EXTENSION EDUCATION IN PUBLIC
SCHOOL BUILDINGS.  THE SUNDAY EXHIBITION OF MOTION PICTURES IS
PERMITTED ONLY AFTER 2 P.M., AND THEN ONLY IF THE VOTERS IN EACH
MUNICIPALITY APPROVE; HOWEVER, RELIGIOUS MOTION PICTURES MAY BE SHOWN
BY CHURCHES AT ANY TIME PROVIDING THEY ARE SHOWN WITHIN CHURCH PROPERTY
AND NO ADMISSION PRICE IS CHARGED.  BASEBALL, FOOTBALL AND POLO RECEIVE
SIMILAR TREATMENT EXCEPT THE PERMITTED HOURS ARE BETWEEN 1 P.M. AND 7
P.M.  PUBLIC CONCERTS, OF MUSIC OF HIGH ORDER THOUGH NOT NECESSARILY
SACRED, MAY ONLY BE PERFORMED AFTER NOON. 

THE OFF-THE-PREMISES SALE OF ALCOHOLIC BEVERAGES ON SUNDAY IS
DISALLOWED; BUT PRIVATE CLUBS MAY SELL ALCOHOLIC BEVERAGES TO THEIR
MEMBERS ON SUNDAY, AS MAY HOTEL RESTAURANTS BETWEEN 1 P.M. AND 10 P.M.
IN FIRST- AND SECOND-CLASS PENNSYLVANIA CITIES IF THE VOTERS IN THOSE
CITIES SO CHOOSE.  MUNICIPALITIES AND THIRD-CLASS PENNSYLVANIA CITIES
HAVE STATUTORY AUTHORITY TO RESTRAIN DESECRATIONS OF THE SABBATH DAY;
ONE STATUTORY SECTION SIMPLY EMPOWERS VARIOUS JUDICIAL OFFICERS TO
PUNISH PERSONS WHO PROFANE THE LORD'S DAY.  BARBERING AND BEAUTY
CULTURE WORK ON SUNDAY SUBJECTS THE ACTOR TO LICENSE REVOCATION.  MALE
PRISONERS MAY NOT PERFORM MANUAL LABOR ON SUNDAY, AND BAKERY EMPLOYEES
ARE NOT PERMITTED TO COMMENCE WORKING ON SUNDAY BEFORE 6 P.M. 

THE STATUTES GENERALLY PROSCRIBE HUNTING AND SHOOTING ON SUNDAY BUT
MAKE AN EXCEPTION FOR THE REMOVAL OF FURBEARING ANIMALS FROM TRAPS. 
SUNDAY FISHING FROM PUBLIC LANDS OR IN PUBLIC WATERS IS PERMITTED, BUT
NOT ON PRIVATE PROPERTY WITHOUT THE CONSENT OF THE OWNER.  ALSO BANNED
IS THE TRAINING OF DOGS EXCEPT WITH THE PERMISSION OF THE OWNER UPON
WHOSE LAND THE ACTIVITY IS UNDERTAKEN. 

THE COURT BELOW, ALTHOUGH FINDING THAT MCGINLEY THREATENED TO ENFORE
THE 1959 ACT AGAINST APPELLANT'S EMPLOYEES, DENIED APPELLANT THE
INJUNCTIVE RELIEF SOUGHT, DISMISSING APPELLANT'S CONSTITUTIONAL
OBJECTIONS THAT THE 1959 STATUTE WAS A LAW RESPECTING AN ESTABLISHMENT
OF RELIGION, THAT THE STATUTE PREFERRED ONE RELIGION OVER OTHERS AND
THAT THE CLASSIFICATIONS DRAWN BY THE STATUTE WERE VIOLATIVE OF EQUAL
PROTECTION OF THE LAW.  THE THREE-JUDGE COURT DECLINED TO PASS ON THE
CONSTITUTIONALITY OF THE 1939 STATUTE BECAUSE IT FOUND THAT, SINCE THE
1959 STATUTE WAS NOW IN EFFECT, THERE WAS NO IMMINENT THREAT TO
APPELLANT OF BEING PROSECUTED UNDER THE 1939 ENACTMENT.  THE COURT ALSO
FELT IT ITS DUTY TO REFRAIN FROM PASSING UPON THE 1939 STATUTE BECAUSE
IT BELIEVED THAT THERE WAS A SUBSTANTIAL UNSETTLED QUESTION OF
PENNSYLVANIA LAW AS TO WHETHER THE 1939 ACT WAS SUPERSEDED BY THE 1959
ACT SO FAR AS THE SPECIFIC COMMODITIES COVERED BY THE LATTER STATUTE. 
REGARDING APPELLANT'S CONTENTION THAT MCGINLEY WAS ENFORCING THE 1939
STATUTE DISCRIMINATORILY, THE COURT HELD THAT SINCE MCGINLEY HAD
RECENTLY MADE SUBSTANTIAL EFFORTS TO COMPEL OBSERVANCE OF THE STATUTE
BY NUMEROUS RETAIL STORES, SINCE THE RELIEF APPELLANT SOUGHT WAS WHOLLY
PROSPECTIVE AND SINCE MCGINLEY'S TERM OF OFFICE AS DISTRICT ATTORNEY
WAS EXPIRING WITHIN A MONTH OF THE DECISION, THERE WAS NO BASIS FOR
FINDING THAT THERE WOULD BE FUTURE DISCRIMINATORY ENFORCEMENT OF THE
1959 STATUTE, 179 F. SUPP. 944.  ON APPEAL BROUGHT UNDER 28 U.S.C. SEC.
1253, WE NOTED PROBABLE JURISDICTION.  362 U.S. 960. 

                                I. 

BEFORE REACHING THE PRIMARY QUESTIONS PRESENTED, SEVERAL ANCILLARY
MATTERS MUST BE CONSIDERED.  FIRST, APPELLANT CONTENDS THAT MCGINLEY
DISCRIMINATED AGAINST IT IN ENFORCING THE LAWS.  RECOGNIZING THAT A
MOOTNESS PROBLEM EXISTS BECAUSE LEHIGH COUNTY NOW HAS A NEW DISTRICT
ATTORNEY, (FN4) APPELLANT CONTENDS THAT THERE ARE STILL PENDING
PROSECUTIONS AGAINST ITS EMPLOYEES INITIATED AS THE RESULT OF THE
ALLEGED DISCRIMINATORY ACTION.  SINCE APPELLANT'S EMPLOYEES MAY DEFEND
AGAINST ANY SUCH PROCEEDING THAT IS ACTUALLY PROSECUTED ON THE GROUND
OF UNCONSTITUTIONAL DISCRIMINATION, WE DO NOT BELIEVE THAT THE COURT
BELOW WAS INCORRECT IN REFUSING TO EXERCISE ITS INJUNCTIVE POWERS AT
THAT TIME. 

FURTHERMORE, WE DO NOT BELIEVE THAT THE THREE-JUDGE DISTRICT COURT
ABUSED ITS DISCRETION IN DECLINING TO PASS ON THE CONSTITUTIONALITY OF
THE 1939 STATUTE FOR THE REASONS STATED.  RAILROAD COMMISSION V.
PULLMAN CO., 312 U.S. 496.  THE COURT BELOW MADE CLEAR THAT IF
APPELLANT'S EMPLOYEES WERE THREATENED WITH PROSECUTION UNDER THE 1939
ACT, AND IF THE PENNSYLVANIA COURTS DECIDED THAT THE 1939 ACT STILL
APPLIES TO APPELLANT, THAT WOULD BE TIME ENOUGH TO CONSIDER THAT
STATUTE'S VALIDITY.  SIMILARLY, WE DO NOT BELIEVE THAT THE COURT ABUSED
ITS EQUITY POWER IN REFUSING TO CONTINUE THE PRELIMINARY INJUNCTION
BARRING ENFORCEMENT OF THE 1939 STATUTE AGAINST APPELLANT, SINCE THERE
WAS NO IMMINENT THREAT OF PROSECUTION. 

                                               II. 

APPELLANT URGES THAT THE 1959 ENACTMENT IS CONTRARY TO THE FOURTEENTH
AMENDMENT'S MANDATE OF EQUAL PROTECTION OF THE LAWS BECAUSE, WITHOUT
RATIONAL BASIS, THE STATUTE SINGLES OUT ONLY TWENTY SPECIFIED
COMMODITIES, THE SUNDAY SALE OF WHICH IS PENALIZED BY A FINE OF UP TO
ONE HUNDRED DOLLARS FOR THE FIRST OFFENSE AND, FOR SUBSEQUENT OFFENSES
COMMITTED WITHIN ONE YEAR, A FINE OF UP TO TWO HUNDRED DOLLARS OR, IN
DEFAULT THEREOF, IMPRISONMENT NOT TO EXCEED THIRTY DAYS; AND ALSO
BECAUSE THE STATUTE'S PROSCRIPTION EXTENDS ONLY TO RETAIL SALES. 
APPELLANT ARGUES THAT TO FORBID THE SUNDAY SALE OF ONLY SOME ITEMS
WHILE PERMITTING THE SALE OF MANY OTHERS AND TO EXCLUDE ONLY RETAILERS
FROM SUNDAY OPERATION WHILE EXEMPTING WHOLESALERS, SERVICE DEALERS,
FACTORIES, AND THOSE ENGAGED IN THE OTHER EXCEPTED ACTIVITIES DEFEATS
THE STATE'S ALLEGED INTEREST OF PROVIDING A DAY OF REST AND
TRANQUILLITY FOR ALL.  (FN5) 

THE STANDARDS FOR EVALUATING THESE CONTENTIONS HAVE BEEN SET OUT IN
MCGOWAN V. MARYLAND, ANTE, PP. 425-426; WE NEED NOT RESTATE THEM HERE. 
FIRST, APPELLANT'S ARGUMENT OVERLOOKS THE FACT THAT THE 1939
PENNSYLVANIA STATUTE PROHIBITS ALL WORLDLY EMPLOYMENT OR BUSINESS, WITH
NARROWLY DRAWN EXCEPTIONS; THE 1959 ENACTMENT NOW BEFORE US SIMPLY
SUPPLEMENTS THE PRIOR REGULATION.  THE EXISTING SYSTEM THEN IMPOSES A
GREATER PENALTY FOR THE SUNDAY SALE OF SOME ITEMS AT RETAIL THAN IT
IMPOSES FOR OTHER SUNDAY RETAIL SALES AND FOR THE OTHER SUNDAY
ACTIVITIES THAT APPELLANT SEEMS TO HAVE ASSUMED ARE NOT FORBIDDEN AT
ALL.  OF COURSE, AS TO WORKS OF CHARITY, NECESSITY OR RECREATION, THE
STATE LEGISLATURE COULD FIND THAT THE INTERESTS OF ITS CITIZENS ARE
BEST SERVED BY PERMITTING THESE SUNDAY ACTIVITIES; THAT THEIR
INTERFERENCE WITH THE ABSOLUTE TRANQUILLITY OF THE DAY IS JUSTIFIED BY
THEIR REQUIREMENT AND DESIRABILITY.  MCGOWAN V. MARYLAND, SUPRA, AT P.
426. 

AS TO THE RATIONALITY OF IMPOSING A HEAVIER PENALTY FOR THE SUNDAY
SALE OF THE SELECTED COMMODITIES, THE COURT BELOW FOUND: 

"THAT THE 1939 CLOSING LAW WAS OBSERVED BY MOST RETAIL SELLERS IN
LEHIGH COUNTY, THOUGH NOT ALL, WHO WERE SUBJECT TO ITS PROVISIONS,
UNTIL THE VERY RECENT OPENING OF SUBSTANTIAL SUBURBAN RETAIL BUSINESSES
LIKE THAT OF THE PLAINTIFF INITIATED AND TRIGGERED NEW AND RATHER LARGE
SCALE VIOLATIONS, AND THREATS OF OTHERS  ...  AND THAT THE SMALL FOUR
DOLLAR PENALTY OF THE EARLIER LAW WAS INADEQUATE TO DETER THE SUNDAY
OPENING OF LARGE RETAIL ESTABLISHMENTS WHICH COULD EASILY ABSORB SUCH
SMALL FINES AS AN INCIDENTAL COST OF DOING A PROFITABLE BUSINESS. 
MOREOVER, IT APPEARED THAT THE TYPES OF COMMODITIES COVERED BY THIS NEW
ENACTMENT ARE PRINCIPAL CATEGORIES OF MERCHANDISE SOLD IN THESE
ESTABLISHMENTS WHICH HAVE MADE THE PROBLEM OF SUNDAY RETAIL SELLING
NEWLY ACUTE."  179 F. SUPP., AT 952.  (FN6) 

IT WAS WITHIN THE POWER OF THE LEGISLATURE TO HAVE CONCLUDED THAT
THESE BUSINESSES WERE PARTICULARLY DISRUPTING THE INTENDED ATMOSPHERE
OF THE DAY BECAUSE OF THE GREAT VOLUME OF MOTOR TRAFFIC ATTRACTED,
(FN7) THE DANGER OF THEIR COMPETITORS ALSO OPENING ON SUNDAY (FN8) AND
THEIR LARGE NUMBER OF EMPLOYEES.  "EVILS IN THE SAME FIELD MAY BE OF
DIFFERENT DIMENSIONS AND PROPORTIONS, REQUIRING DIFFERENT REMEDIES  ...
.  OR THE REFORM MAY TAKE ONE STEP AT A TIME, ADDRESSING ITSELF TO THE
PHASE OF THE PROBLEM WHICH SEEMS MOST ACUTE TO THE LEGISLATIVE MIND
...  .  THE LEGISLATURE MAY SELECT ONE PHASE OF ONE FIELD AND APPLY A
REMEDY THERE, NEGLECTING THE OTHERS."  WILLIAMSON V. LEE OPTICAL, 348
U.S. 483, 489.  (FN9)

                                             III. 

APPELLANT CONTENDS THAT THE PENNSYLVANIA SUNDAY CLOSING LAW IS ONE
RESPECTING AN ESTABLISHMENT OF RELIGION BECAUSE IT COMMEMORATES THE
RESURRECTION, OBLIGES EVERYONE TO HONOR THIS BASIC DOCTRINE OF THE
MAJOR CHRISTIAN DENOMINATIONS BY ABSTAINING FROM WORK AND ENCOURAGES
CHRISTIAN RELIGIOUS WORSHIP.  APPELLANT ALSO ALLEGES THAT THE STATUTE
DISCRIMINATES AGAINST CERTAIN RELIGIONS.  FOR THE SAME REASONS STATED
IN MCGOWAN V. MARYLAND, SUPRA, AT PP. 429-431, WE HOLD THAT APPELLANT
HAS STANDING TO RAISE ONLY THE FIRST CONTENTION.  (FN10) 

TO PROVE ITS ARGUMENT, APPELLANT RELIES ON THE LANGUAGE OF THE
PRESENT LAWS IN QUESTION, ON THE PRIOR HISTORY OF THIS LEGISLATION AND
ON VARIOUS STATEMENTS OF THE PENNSYLVANIA COURTS IN INTERPRETING THE
STATUTES.  WE AGREE THAT AN INQUIRY INTO THESE MATTERS IS RELEVANT. 
MCGOWAN V. MARYLAND, SUPRA, AT P. 431.    THE COURT BELOW FOUND THAT
THE CONNECTION BETWEEN RELIGION AND THE ORIGINAL PENNSYLVANIA SUNDAY
CLOSING STATUTES WAS OBVIOUS AND INDISPUTABLE.  THIS IS CLEARLY
DEMONSTRATED BY THE FIRST PENNSYLVANIA SUNDAY LAW, ENACTED IN 1682. 
(FN11)  THERE WERE RE-ENACTMENTS SEVERAL YEARS LATER, AND AGAIN IN
1700, WHICH ONCE MORE STATED THE PURPOSES OF PREVENTING "LOOSENESS,
IRRELIGION, AND ATHEISM," AND OF BETTER PERMITTING ON SUNDAY THE
READING OF THE SCRIPTURES AT HOME OR THE FREQUENTING OF MEETINGS OF
RELIGIOUS WORSHIP.  ID., AT 192.  2 STATUTES AT LARGE OF PENNSYLVANIA 3
4.  IN 1705, SOME CHANGES APPEARED.  THE PREAMBLE OF THE STATUTE
REMAINED RELIGIOUS (FN12) AND THE STATED PURPOSES OF BIBLE READING AND
RELIGIOUS WORSHIP CONTINUED.  HOWEVER, SOME OF THE EXCEPTIONS STILL
PRESENT IN THE 1939 STATUTE FIRST APPEARED, BUT A SPECIFIC BAN ON THE
DRINKING OF ALCOHOLIC BEVERAGES IN PUBLIC HOUSES WAS ENACTED.  ID., AT
175-177.  THE MOST APPARENT FORERUNNER OF THE 1939 STATUTE WAS PASSED
IN 1779.  THE PREAMBLE STATED ONLY THAT THE PURPOSE WAS "FOR THE DUE
OBSERVATION OF THE LORD'S DAY."  9 STATUTES AT LARGE OF PENNSYLVANIA
333.  NO MENTION WAS MADE OF BIBLE READING OR RELIGIOUS WORSHIP AND THE
SPECIFIC SUNDAY PROHIBITION CONCERNING ALCOHOLIC BEVERAGES WAS
OMITTED.   BY 1786, THE PREAMBLE COMPLETELY DISAPPEARED, 12 STATUTES AT
LARGE OF PENNSYLVANIA 314.  SEE 15 STATUTES AT LARGE OF PENNSYLVANIA
110 FOR THE FINAL COLONIAL ENACTMENT IN 1794. 

THE PRESENT STATUTORY SECTIONS STILL CONTAIN SOME TRACES OF THE EARLY
RELIGIOUS INFLUENCE.  THE 1939 STATUTE REFERS TO SUNDAY AS "THE LORD'S
DAY"; BUT IT IS INCLUDED IN THE GENERAL SECTION ENTITLED, "OFFENSES
AGAINST PUBLIC POLICY, ECONOMY AND HEALTH."  TITLE 18 PURDON'S PA.
STAT.  ANN. SEC. 4651 USES THE TERM "SABBATH DAY" AND REFERS TO THE
OTHER DAYS OF THE WEEK AS "SECULAR DAYS."  BUT ALMOST EVERY OTHER
STATUTORY SECTION SIMPLY USES THE WORD "SUNDAY" AND CONTAINS NO
LANGUAGE WITH RELIGIOUS CONNOTATION.  IT WOULD SEEM THAT THOSE TRACES
THAT HAVE REMAINED ARE SIMPLY THE RESULT OF LEGISLATIVE OVERSIGHT IN
FAILING TO REMOVE THEM.  SECTION 4651 WAS RE-ENACTED IN 1959 AND
HAPPENED TO RETAIN THE RELIGIOUS LANGUAGE; MANY OTHER STATUTORY
POLITICAL SUBDIVISIONS ARE AUTHORIZED TO RESTRAIN "DESECRATIONS OF THE
SABBATH DAY," AND THERE IS A JURISDICTIONAL SECTION AUTHORIZING THE
PUNISHMENT OF PERSONS WHO "PROFANE THE LORD'S DAY."  BUT MANY OF THE
ACTIVITIES HISTORICALLY CONSIDERED TO BE PROFANE - E.G., THE
CONSUMPTION OF ALCOHOLIC BEVERAGES - ARE NOW NO LONGER TOTALLY
PROHIBITED.  THERE IS A GENERAL IMMUNITY FOR RELIGIOUS MOTION PICTURES
AND SOME OF THE RECENTLY EXEMPTED ACTIVITIES ARE PERMITTED ONLY DURING
SUNDAY AFTERNOONS. 

ON THE OTHER HAND, WE FIND THAT THE 1939 STATUTE WAS RECENTLY AMENDED
TO PERMIT ALL HEALTHFUL AND RECREATIONAL EXERCISES AND ACTIVITIES ON
SUNDAY.  THIS IS NOT CONSISTENT WITH AIDING CHURCH ATTENDANCE; IN FACT,
IT MIGHT BE DEEMED INCONSISTENT.  AND THE STATUTORY SECTION, SEC.
4699.10, THE CONSTITUTIONALITY OF WHICH IS IMMEDIATELY BEFORE US, WAS
PROMOTED PRINCIPALLY BY THE REPRESENTATIVES OF LABOR AND BUSINESS
INTERESTS.  (FN13)  THOSE PENNSYLVANIA LEGISLATORS WHO FAVORED THE BILL
SPECIFICALLY DISAVOWED ANY RELIGIOUS PURPOSE FOR ITS ENACTMENT BUT
STATED INSTEAD THAT ECONOMICS REQUIRED ITS PASSAGE.  (FN14) 

AS EARLY AS 1848, THE PENNSYLVANIA SUPREME COURT VOCIFEROUSLY
DISCLAIMED THAT THE PURPOSE OF SUNDAY CLOSING WAS RELIGIOUS: 

"ALL AGREE THAT TO THE WELL-BEING OF SOCIETY, PERIODS OF REST ARE
ABSOLUTELY NECESSARY.  TO BE PRODUCTIVE OF THE REQUIRED ADVANTAGE,
THESE PERIODS MUST RECUR AT STATED INTERVALS, SO THAT THE MASS OF WHICH
THE COMMUNITY IS COMPOSED, MAY ENJOY A RESPITE FROM LABOUR AT THE SAME
TIME.  THEY MAY BE ESTABLISHED BY COMMON CONSENT, OR, AS IS CONCEDED,
THE LEGISLATIVE POWER OF THE STATE MAY, WITHOUT IMPROPRIETY, INTERFERE
TO FIX THE TIME OF THEIR STATED RETURN AND ENFORCE OBEDIENCE TO THE
DIRECTION.  WHEN THIS HAPPENS, SOME ONE DAY MUST BE SELECTED, AND IT
HAS BEEN SAID THE ROUND OF THE WEEK PRESENTS NONE WHICH, BEING
PREFERRED, MIGHT NOT BE REGARDED AS FAVOURING SOME ONE OF THE NUMEROUS
RELIGIOUS SECTS INTO WHICH MANKIND ARE DIVIDED.  IN A CHRISTIAN
COMMUNITY, WHERE A VERY LARGE MAJORITY OF THE PEOPLE CELEBRATE THE
FIRST DAY OF THE WEEK AS THEIR CHOSEN PERIOD OF REST FROM LABOUR, IT IS
NOT SURPRISING THAT THAT DAY SHOULD HAVE RECEIVED THE LEGISLATIVE
SANCTION:  AND AS IT IS ALSO DEVOTED TO RELIGIOUS OBSERVANCES, WE ARE
PREPARED TO ESTIMATE THE REASON WHY THE STATUTE SHOULD SPEAK OF IT AS
THE LORD'S DAY, AND DENOMINATE THE INFRACTION OF ITS LEGALIZED REST, A
PROFANATION.  YET THIS DOES NOT CHANGE THE CHARACTER OF THE ENACTMENT. 
IT IS STILL, ESSENTIALLY, BUT A CIVIL REGULATION MADE FOR THE
GOVERNMENT OF MAN AS A MEMBER OF SOCIETY, AND OBEDIENCE TO IT MAY
PROPERLY BE ENFORCED BY PENAL SANCTIONS."  SPECHT V. COMMONWEALTH, 8
PA. 312, 323.  (FN15) 

CONCEDEDLY, THERE WERE A NUMBER OF CASES (FN16) DECIDED AFTER SPECHT
WHICH USED LANGUAGE STRONGLY SUPPORTING APPELLANT'S POSITION.  BUT
THESE CASES, THE LAST OF WHICH WAS DECIDED MORE THAN THIRTY YEARS AGO,
DID NOT SQUARELY DECIDE A CONSTITUTIONAL CONTENTION.  MORE
PERSUASIVELY, IN THE ONLY RECENT APPELLATE CASE DEALING WITH THE
CONSTITUTIONALITY OF THE 1939 STATUTE, THE PENNSYLVANIA SUPERIOR COURT
AFFIRMED AN OPINION WHICH SPECIFICALLY RELIED ON THE LANGUAGE AND
REASONING OF SPECHT.  COMMONWEALTH V. BAUDER, 188 PA. SUPER.  424, 145
A.2D 915, AFFIRMING 14 PA. D.&C.2D 571. 

HAVING CAREFULLY EXAMINED THE ENTIRETY OF THE PRESENT LEGISLATION,
THE RELEVANT JUDICIAL CHARACTERIZATIONS AND, PARTICULARLY, THE
LEGISLATIVE HISTORY LEADING TO THE PASSAGE OF THE 1959 ACT IMMEDIATELY
BEFORE US, WE HOLD THAT NEITHER THE STATUTE'S PURPOSE NOR ITS EFFECT IS
RELIGIOUS.  SEE MCGOWAN V. MARYLAND, SUPRA, AT P. 449.  MOREOVER, FOR
THE SAME REASONS STATED IN MCGOWAN V. MARYLAND, SUPRA, AT PP. 449-452,
WE REJECT APPELLANT'S CONTENTION THAT THE STATE HAS OTHER MEANS AT ITS
DISPOSAL TO ACCOMPLISH ITS SECULAR PURPOSE THAT WOULD NOT EVEN REMOTELY
OR INCIDENTALLY GIVE STATE AID TO RELIGION. 

ACCORDINGLY, THE DECISION IS AFFIRMED. 

FN1  18 PURDON'S PA. STAT. ANN. (1960 CUM. SUPP.) SEC. 4699.10
PROVIDES: 

"SELLING CERTAIN PERSONAL PROPERTY ON SUNDAY: 

"WHOEVER ENGAGES ON SUNDAY IN THE BUSINESS OF SELLING, OR SELLS OR
OFFERS FOR SALE, ON SUCH DAY, AT RETAIL, CLOTHING AND WEARING APPAREL,
CLOTHING ACCESSORIES, FURNITURE, HOUSEWARES, HOME, BUSINESS OR OFFICE
FURNISHINGS, HOUSEHOLD, BUSINESS OR OFFICE APPLIANCES, HARDWARE, TOOLS,
PAINTS, BUILDING AND LUMBER SUPPLY MATERIALS, JEWELRY, SILVERWARE,
WATCHES, CLOCKS, LUGGAGE, MUSICAL INSTRUMENTS AND RECORDINGS, OR TOYS,
EXCLUDING NOVELTIES AND SOUVENIRS, SHALL, UPON CONVICTION THEREOF IN A
SUMMARY PROCEEDING FOR THE FIRST OFFENSE, BE SENTENCED TO PAY A FINE OF
NOT EXCEEDING ONE HUNDRED DOLLARS ($100), AND FOR THE SECOND OR ANY
SUBSEQUENT OFFENSE COMMITTED WITHIN ONE YEAR AFTER CONVICTION FOR THE
FIRST OFFENSE, BE SENTENCED TO PAY A FINE OF NOT EXCEEDING TWO HUNDRED
DOLLARS ($200) OR UNDERGO IMPRISONMENT NOT EXCEEDING THIRTY DAYS IN
DEFAULT THEREOF. 

"EACH SEPARATE SALE OR OFFER TO SELL SHALL CONSTITUTE A SEPARATE
OFFENSE. 

"INFORMATION CHARGING VIOLATIONS OF THIS SECTION SHALL BE BROUGHT
WITHIN SEVENTY-TWO HOURS AFTER THE COMMISSION OF THE ALLEGED OFFENSE
AND NOT THEREAFTER." 

FN2  SEC. 4699.4.  "WORLDLY EMPLOYMENT OR BUSINESS ON SUNDAY: 

"WHOEVER DOES OR PERFORMS ANY WORLDLY EMPLOYMENT OR BUSINESS
WHATSOEVER ON THE LORD'S DAY, COMMONLY CALLED SUNDAY (WORKS OF
NECESSITY AND CHARITY ONLY EXCEPTED), OR USES OR PRACTICES ANY GAME,
HUNTING, SHOOTING, SPORT OR DIVERSION WHATSOEVER ON THE SAME DAY NOT
AUTHORIZED BY LAW, SHALL, UPON CONVICTION THEREOF IN A SUMMARY
PROCEEDING, BE SENTENCED TO PAY A FINE OF FOUR DOLLARS ($4), FOR THE
USE OF THE COMMONWEALTH, OR, IN DEFAULT OF THE PAYMENT THEREOF, SHALL
SUFFER SIX (6) DAYS' IMPRISONMENT. 

"NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO PROHIBIT THE DRESSING
OF VICTUALS IN PRIVATE FAMILIES, BAKE-HOUSES, LODGING-HOUSES, INNS AND
OTHER HOUSES OF ENTERTAINMENT FOR THE USE OF SOJOURNERS, TRAVELLERS OR
STRANGERS, OR TO HINDER WATERMEN FROM LANDING THEIR PASSENGERS, OR
FERRYMEN FROM CARRYING OVER THE WATER TRAVELLERS, OR PERSONS REMOVING
WITH THEIR FAMILIES ON THE LORD'S DAY, COMMONLY CALLED SUNDAY, NOR TO
THE DELIVERY OF MILK OR THE NECESSARIES OF LIFE, BEFORE NINE OF THE
CLOCK IN THE FORENOON, NOR AFTER FIVE OF THE CLOCK IN THE AFTERNOON OF
THE SAME DAY." 

FN3  THESE LAWS, IN THEIR ENTIRETY, MAY BE FOUND IN 4 PURDON'S PA.
STAT. ANN. SECS. 1, 30.202, 59-66, 81-91, 121-127, 151-157, 181-185,
307(C); 18 PURDON'S PA. STAT. ANN. SECS.  632, 633, 4651, 4699.4,
4699.9, 4699.10; 24 PURDON'S PA. STAT. ANN. SEC. 19-1903; 30 PURDON'S
PA. STAT. ANN. SECS. 118, 138, 153, 265, 273; 34 PURDON'S PA. STAT.
ANN. SECS.  1311.702, 1311.719, 1311.721, 1311.731, 1311.1205; 43
PURDON'S PA. STAT. ANN. SEC. 361; 47 PURDON'S PA. STAT. ANN. SECS. 3
304, 4-406, 4-492; 51 PURDON'S PA. STAT. ANN. SEC. 623; 53 PURDON'S PA.
STAT. ANN. SECS. 23130, 37403(24); 61 PURDON'S PA. STAT. ANN. SECS.
184, 195; 63 PURDON'S PA. STAT. ANN. SECS. 281-28, 519, 559. 

FN4  THE NEW DISTRICT ATTORNEY WAS "SUBSTITUTED AN AN ADDITIONAL
DEFENDANT" IN THE COURT BELOW ON APPELLANT'S MOTION, WHICH STATED THAT
APPELLANT "HAS NO REASON TO BELIEVE AND, THEREFORE, DOES NOT AVER THAT
THE NEW DISTRICT ATTORNEY WILL DISCRIMINATORILY ENFORCE THE LAWS AS DID
HIS PREDECESSOR ...  ." 

FN5  CONCOMITANTLY, APPELLANT STATES THE STATUTE VIOLATES DUE PROCESS
FOR THESE SAME REASONS. 

FN6  COMMENTING ON PRIOR ENGLISH SUNDAY LEGISLATION, A MEMBER OF
PARLIAMENT STATED: 

"THE PENALTY IS A FINE OF 5S., AND NOBODY WILL SUGGEST THAT THAT IS
EFFECTIVE IN ANY WAY.  IT SIMPLY MEANS THE PAYMENT OF 5S., WITH A
LITTLE EXPENSE ADDED TO THAT, IN ORDER TO KEEP OPEN ON SUNDAYS, AND IT
SEEMS TO ME THAT THE STATUTE OF 1677, APPLIED TO MODERN CONDITIONS, IS
NOTHING SHORT OF RIDICULOUS."  308 PARLIAMENTARY DEBATES, COMMONS,
2167. 

FN7  A PENNSYLVANIA LEGISLATOR STATED: 

"IT WAS SEVERAL MONTHS AGO, OVER A YEAR AGO, THAT A BUSINESS FROM NEW
JERSEY MOVED INTO THE AFOREMENTIONED WHITEHALL TOWNSHIP OF LEHIGH
COUNTY.  IT WAS KNOWN AS THE 'TWO GUYS FROM HARRISON.'  THEY STARTED
OPERATING ON SUNDAY.  IT WAS A NOVELTY.  THE PEOPLE CAME FROM
NORTHAMPTON, BUCKS, MONROE, PIKE, SCHUYLKILL AND ALL THE SURROUNDING
COUNTIES, SO MUCH SO THAT THEY JAMMED TRAFFIC ON THE HIGHWAYS OF THE
SEVENTH STREET PIKE IN ALLENTOWN AND WHITEHALL TOWNSHIP.  HOWEVER, THE
PEOPLE CAME AND THEY DID BUSINESS.  THERE WERE OTHER ENTERPRISES ALONG
THE SAME ROUTE WHICH WERE OPEN ON SUNDAY AND DOING BUSINESS."  36
PENNSYLVANIA LEGISLATIVE JOURNAL 1143. 

FN8  THIS PROBLEM WAS RECOGNIZED WHEN THE ENGLISH LEGISLATION WAS
BEING CONSIDERED.  A MEMBER OF PARLIAMENT STATED: 

"SO FAR, HAPPILY, THE GREAT COMBINE AND CHAIN STORES HAVE NOT ENTERED
ON SUNDAY TRADING, BUT THEY ARE BUSINESS ENTERPRISES AND IT IS NOT
IMPOSSIBLE THAT THEY MAY FIND THEMSELVES COMPELLED BY ECONOMIC
CONSIDERATIONS AND PRESSURE OF LOCAL CIRCUMSTANCES TO OPEN ON SUNDAY,
BECAUSE PARLIAMENT TAKES NO ACTION TO CONTROL AND REGULATE SUNDAY
BUSINESS IN RETAIL SHOPS.  IF THAT DEVELOPMENT SHOULD TAKE PLACE, WE
SHALL FIND OUR SHOPPING CENTRES ON A SUNDAY NO DIFFERENT IN ANY WAY
FROM THE BUSTLE, NOISE AND GLAMOUR OF THE WEEK-DAY TRADE."  308
PARLIAMENTARY DEBATES, COMMONS, 2166. 

FN9  THE BASIC ENGLISH SUNDAY STATUTE, 29 CHARLES II, C.7 (1677),
IMPOSED DIFFERING FINES FOR DIFFERENT PROSCRIBED ACTIVITIES. 

FN10  MR. JUSTICE BLACK IS OF THE OPINION THAT APPELLANT ALSO HAS
STANDING TO RAISE THE SECOND CONTENTION AND THAT THE CLAIM IS WITHOUT
MERIT.  SEE MCGOWAN V. MARYLAND, ANTE, AT P. 429, N. 6. 

FN11  "WHEREAS, THE GLORY OF ALMIGHTY GOD AND THE GOOD OF MANKIND, IS
THE REASON & END OF GOVERNMENT, AND THEREFORE, GOVERNMENT IN ITSELF IS
A VENERABLE ORDINANCE OF GOD.  AND FORASMUCH AS IT IS PRINCIPALLY
DESIRED AND INTENDED BY THE PROPRIETARY AND GOVERNOR AND THE FREEMEN OF
THE PROVINCE OF PENNSYLVANIA AND TERRITORIES THEREUNTO BELONGING, TO
MAKE AND ESTABLISH SUCH LAWS AS SHALL BEST PRESERVE TRUE CHRISTIAN AND
CIVIL LIBERTY, IN OPPOSITION TO ALL UNCHRISTIAN, LICENTIOUS, AND UNJUST
PRACTICES, (WHEREBY GOD MAY HAVE HIS DUE, CAESAR HIS DUE, AND THE
PEOPLE THEIR DUE,) FROM TYRANNY AND OPPRESSION ON THE ONE SIDE, AND
INSOLENCE, AND LICENTIOUSNESS ON THE OTHER, SO THAT THE BEST AND
FIRMEST FOUNDATION MAY BE LAYD FOR THE PRESENT AND FUTURE HAPPINESS OF
BOTH THE GOVERNOR AND PEOPLE, OF THE PROVINCE AND TERRITORIES
AFORESAID, AND THEIR POSTERITY. 

"BE IT THEREFORE ENACTED BY WILLIAM PENN, PROPRIETARY AND GOVERNOUR,
BY, AND WITH THE ADVICE AND CONSENT OF THE DEPUTIES OF THE FREEMEN OF
THIS PROVINCE AND COUNTIES AFORESAID, IN ASSEMBLY MET, AND BY THE
AUTHORITY OF THE SAME, THAT THESE FOLLOWING CHAPTERS AND PARAGRAPHS
SHALL BE THE LAWS OF PENNSYLVANIA AND THE TERRITORIES THEREOF. 

"CHAP. I. ALMIGHTY GOD, BEING ONLY LORD OF CONSCIENCE FATHER OF
LIGHTS AND SPIRITS, AND THE AUTHOR AS WELL AS OBJECT OF ALL DIVINE
KNOWLEDGE, FAITH, AND WORSHIP, WHO ONLY CAN ENLIGHTEN THE MIND, AND
PERSUADE AND CONVINCE THE UNDERSTANDINGS OF PEOPLE.  IN DUE REVERENCE
TO HIS SOVEREIGNTY OVER THE SOULS OF MANKIND  ...  .           *
*         *         *         * 

"BUT TO THE END THAT LOOSENESS, IRRELIGION, AND ATHEISM MAY NOT CREEP
IN UNDER PRETENSE OF CONSCIENCE IN THIS PROVINCE, BE IT FUTHER ENACTED
BY THE AUTHORITY AFORESAID, THAT, ACCORDING TO THE EXAMPLE OF THE
PRIMITIVE CHRISTIANS, AND FOR THE EASE OF THE CREATION, EVERY FIRST DAY
OF THE WEEK, CALLED THE LORD'S DAY, PEOPLE SHALL ABSTAIN FROM THEIR
USUAL AND COMMON TOIL AND LABOUR, THAT WHETHER MASTERS, PARENTS,
CHILDREN, OR SERVANTS, THEY MAY THE BETTER DISPOSE THEMSELVES TO READ
THE SCRIPTURES OF TRUTH AT HOME, OR FREQUENT SUCH MEETINGS OF RELIGIOUS
WORSHIP ABROAD, AS MAY BEST SUTE THEIR RESPECTIVE PERSUASIONS." 
CHARTER AND LAWS OF THE PROVINCE OF PENNSYLVANIA 1682-1700, 107-108. 

FN12  IT STATED: 

"TO THE END THAT ALL PEOPLE WITHIN THIS PROVINCE MAY WITH THE GREATER
FREEDOM DEVOTE THEMSELVES TO RELIGIOUS AND PIOUS EXERCISES."  ID., AT
P. 175. 

FN13  36 PENNSYLVANIA LEGISLATIVE JOURNAL 1139, 2553, 2682-2683. 

FN14  FOR EXAMPLE: 

"AS I READ THIS BILL, I FIND NOTHING IN IT WHICH IS OF A RELIGIOUS
NATURE.  THE BILL IS PROMPTED BY THE THOUSANDS OF LETTERS THAT WE HAVE
ALL RECEIVED IN THE SENATE OF PENNSYLVANIA, ASKING US TO DO SOMETHING
FOR THE MEN AND WOMEN WHO WORK IN THE DEPARTMENT STORES.  THESE PEOPLE
ARE NOT ASKING TO GO TO CHURCH; THEY ARE ASKING FOR A DAY OF REST. 

"I DO NOT FIND ANYONE COMPLAINING ABOUT THE ACT PASSED AT THE LAST
SESSION CONCERNING THE AUTOMOBILE BUSINESS. 

"THIS IS A BILL WHICH HAS BEEN CRYSTALIZED BY, I THINK, A VERY GREAT
ORGANIZED LABOR SECTION IN OUR COMMONWEALTH, THE AMERICAN FEDERALTION
OF LABOR.  THEY ARE IN FAVOR OF IT.  THEY ARE HEADING UP A GROUP OF
PEOPLE WHO HAVE NO PARTICULAR VOICE TO SPEAK FOR THEM.  I BELIEVE IT IS
THE OBLIGATION OF THE SENATE OF PENNSYLVANIA TO VOTE FOR THIS BILL IN
ORDER TO GIVE SOME RECOGNITION TO THE MEN AND WOMEN WHO WORK AND WHO
ARE COMPELLED TO WORK ON SUNDAYS, WHETHER THEY LIKE IT OR WHETHER THEY
DO NOT LIKE IT. 

"THIS IS NOT A BILL.  IT IS RATHER AN INDICTMENT OF OUR CIVILIZATION
WHICH MAKES THIS KIND OF LEGISLATION POSSIBLE AND NECESSARY.  IT IS TOO
BAD THAT BUSINESS WILL NOT PERMIT ITS EMPLOYEES TO HAVE A DAY OF REST. 
IT IS TOO BAD THAT WE MUST LEGISLATE MORALS, AS WE MAY BE DOING IN THIS
BILL."  ID., AT 1139.  SEE ALSO ID., AT 1137-1140, 2564-2565, 2682
2685. 

FN15  THE PENNSYLVANIA COURT ALSO STATED: 

"THE ERROR OF THE PLAINTIFF'S POSITION IS THAT IT CONFOUNDS THE REASON
OF THE PROHIBITION WITH ITS ACTUAL EFFECT, AND THUS MISTAKES THE MERE
RESTRAINT OF PHYSICAL EXERTION FOR THE FETTERS THAT CLOG THE FREEDOM OF
MIND AND CONSCIENCE.  BUT WERE THIS OTHERWISE, THE PLAINTIFF'S ARGUMENT
IS INAPPLICABLE TO THE ACT OF 1794.  THE CONCLUSIONS DRAWN FROM SOME OF
ITS LANGUAGE ARE AS INEXPRESSIVE OF ITS PRACTICAL OPERATION, AS OF THE
PRINCIPAL INTENT OF ITS MAKERS.  THE PHRASEOLOGY USED MAY INDICATE A
CONVICTION OF THE HOLY CHARACTER OF THE FIRST DAY OF THE WEEK, BUT AS
THIS SIMPLE EXPRESSION OF AN ABSTRACT OPINION, WHICH ALL OTHER MEN ARE
AT LIBERTY TO ADOPT OR REJECT, CARRIES WITH IT NO OBLIGATION BEYOND THE
INFLUENCE ATTENDANT UPON THE EXPRESSION ITSELF, IT CANNOT BE SAID A
PRIMARY OBJECT OF THE ACT WAS, AUTHORITATIVELY, TO ASSERT THE SUPREMACY
OF SUNDAY AS OF DIVINE APPOINTMENT.  HAD SUCH BEEN THE INTENT,
IRRESPECTIVE OF ITS STATUTORY CHARACTER AS A DAY OF REST FROM SECULAR
EMPLOYMENT, ITS FRAMERS WOULD NOT HAVE STOPPED SHORT WITH A BARE
INTERDICTION OF LABOUR AND WORLDLY AMUSEMENTS.  FOLLOWING THE EXAMPLE
OFFERED BY OLDER STATES AND COMMUNITIES, THEY WOULD HAVE COMMANDED THE
PERFORMANCE OF RELIGIOUS RITES, OR AT LEAST, SOME EXPRESS RECOGNITION
OF THE DAY AS THE TRUE SABBATH.  SUCH A REQUISITION, WE AGREE WITH THE
PLAINTIFF IN ERROR, WOULD BE A PALPABLE INTERFERENCE WITH THE RIGHTS OF
CONSCIENCE.  BUT NOTHING LIKE THIS IS EXACTED.  ON THE CONTRARY, EVERY
ONE IS LEFT AT FULL LIBERTY TO SHAPE HIS OWN CONVICTIONS, AND
PRACTICALLY TO ASSERT THEM TO THE EXTENT OF A FREE EXERCISE OF HIS
RELIGIOUS VIEWS.  IN THIS, AS IN OTHER RESPECTS, THE CONSCIENCE OF EACH
IS LEFT UNCONTROLLED BY LEGAL COERCION, TO PURSUE ITS OWN INQUIRIES AND
TO ADOPT ITS OWN CONCLUSIONS.  IN THIS ASPECT OF THE STATUTE THERE IS,
THEREFORE, NOTHING IN DEROGATION OF THE CONSTITUTIONAL INHIBITION." 
ID., AT 324. 

FN16  SEE JOHNSTON V. COMMONWEALTH, 22 PA. 102, 111 (1853);
COMMONWEALTH V. NESBIT, 34 PA.  398, 405-409 (1859); SOCIETY FOR THE
VISITATION OF THE SICK V. COMMONWEALTH EX REL. MEYER, 52 PA. 125, 135
(1866); SPARHAWK V. UNION PASSENGER R. CO., 54 PA. 401, 408-409, 423
(1867); COMMONWEALTH V. AMERICAN BASEBALL CLUB, 290 PA. 136, 141, 143,
138 A. 497, 499 (1927). 

FOR OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE HARLAN,
SEE ANTE, P. 459. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 561. 
..END :














BRAUNFELD V. BROWN 366 U.S. 599 


NO. 67.  ARGUED DECEMBER 8, 1960 - DECIDED MAY 29, 1961 - 184 F. SUPP.
352, AFFIRMED. 


APPELLANTS ARE MEMBERS OF THE ORTHODOX JEWISH FAITH, WHICH REQUIRES
THE CLOSING OF THEIR PLACES OF BUSINESS AND TOTAL ABSTENTION FROM ALL
MANNER OF WORK FROM NIGHTFALL EACH FRIDAY UNTIL NIGHTFALL EACH
SATURDAY.  AS MERCHANTS ENGAGED IN THE RETAIL SALE OF CLOTHING AND HOME
FURNISHINGS IN PHILADELPHIA, THEY SUED TO ENJOIN ENFORCEMENT OF A 1959
PENNSYLVANIA CRIMINAL STATUTE WHICH FORBADE THE RETAIL SALE ON SUNDAYS
OF THOSE COMMODITIES AND OTHER SPECIFIED COMMODITIES.  THEY CLAIMED
THAT THE STATUTE VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT AND CONSTITUTED A LAW RESPECTING AN ESTABLISHMENT OF RELIGION
AND THAT IT INTERFERED WITH THE FREE EXERCISE OF THEIR RELIGION BY
IMPOSING SERIOUS ECONOMIC DISADVANTAGES UPON THEM, IF THEY ADHERE TO
THE OBSERVANCE OF THEIR SABBATH, AND THAT IT WOULD OPERATE SO AS TO
HINDER THE ORTHODOX JEWISH FAITH IN GAINING NEW MEMBERS.  HELD:  THE
STATUTE DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT NOR CONSTITUTE A LAW RESPECTING AN ESTABLISHMENT OF RELIGION,
TWO GUYS FROM HARRISON-ALLENTOWN, INC., V. MCGINLEY, ANTE, P. 582; AND
IT DOES NOT PROHIBIT THE FREE EXERCISE OF APPELLANT'S RELIGION, WITHIN
THE MEANING OF THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY
THE FOURTEENTH AMENDMENT.  PP. 600-610. 

BRAUNFELD ET AL. V. BROWN, COMMISSIONER OF POLICE OF PHILADELPHIA, ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

MR. CHIEF JUSTICE WARREN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE BLACK, MR. JUSTICE CLARK, AND MR. JUSTICE
WHITTAKER CONCUR. 

THIS CASE CONCERNS THE CONSTITUTIONAL VALIDITY OF THE APPLICATION TO
APPELLANTS OF THE PENNSYLVANIA CRIMINAL STATUTE, (FN1) ENACTED IN 1959,
WHICH PROSCRIBES THE SUNDAY RETAIL SALE OF CERTAIN ENUMERATED
COMMODITIES.  AMONG THE QUESTIONS PRESENTED ARE WHETHER THE STATUTE IS
A LAW RESPECTING AN ESTABLISHMENT OF RELIGION AND WHETHER THE STATUTE
VIOLATES EQUAL PROTECTION.  SINCE BOTH OF THESE QUESTIONS, IN REFERENCE
TO THIS VERY STATUTE, HAVE ALREADY BEEN ANSWERED IN THE NEGATIVE, TWO
GUYS FROM HARRISON-ALLENTOWN, INC., V. MCGINLEY, ANTE, P. 582, AND
SINCE APPELLANTS PRESENT NOTHING NEW REGARDING THEM, THEY NEED NOT BE
CONSIDERED HERE.  THUS, THE ONLY QUESTION FOR CONSIDERATION IS WHETHER
THE STATUTE INTERFERES WITH THE FREE EXERCISE OF APPELLANT'S RELIGION. 

APPELLANTS ARE MERCHANTS IN PHILADELPHIA WHO ENGAGE IN THE RETAIL
SALE OF CLOTHING AND HOME FURNISHINGS WITHIN THE PROSCRIPTION OF THE
STATUTE IN ISSUE.  EACH OF THE APPELLANTS IS A MEMBER OF THE ORTHODOX
JEWISH FAITH, WHICH REQUIRES THE CLOSING OF THEIR PLACES OF BUSINESS
AND A TOTAL ABSTENTION FROM ALL MANNER OF WORK FROM NIGHTFALL EACH
FRIDAY UNTIL NIGHTFALL EACH SATURDAY.  THEY INSTITUTED A SUIT IN THE
COURT BELOW SEEKING A PERMANENT INJUNCTION AGAINST THE ENFORCEMENT OF
THE 1959 STATUTE.  THEIR COMPLAINT, AS AMENDED, ALLEGED THAT APPELLANTS
HAD PREVIOUSLY KEPT THEIR PLACES OF BUSINESS OPEN ON SUNDAY; THAT EACH
OF APPELLANTS HAD DONE A SUBSTANTIAL AMOUNT OF BUSINESS ON SUNDAY,
COMPENSATING SOMEWHAT FOR THEIR CLOSING ON SATURDAY; THAT SUNDAY
CLOSING WILL RESULT IN IMPAIRING THE ABILITY OF ALL APPELLANTS TO EARN
A LIVELIHOOD AND WILL RENDER APPELLANT BRAUNFELD UNABLE TO CONTINUE IN
HIS BUSINESS, THEREBY LOSING HIS CAPITAL INVESTMENT; THAT THE STATUE IS
UNCONSTITUTIONAL FOR THE REASONS STATED ABOVE. 

A THREE-JUDGE COURT WAS PROPERLY CONVENED AND IT DISMISSED THE
COMPLAINT ON THE AUTHORITY OF THE TWO GUYS FROM HARRISON CASE.  184 F.
SUPP. 352.  ON APPEAL BROUGHT UNDER 28 U.S.C. SEC. 1253, WE NOTED
PROBABLE JURISDICTION, 362 U.S. 987. 

APPELLANTS CONTEND THAT THE ENFORCEMENT AGAINST THEM OF THE
PENNSYLVANIA STATUTE WILL PROHIBIT THE FREE EXERCISE OF THEIR RELIGION
BECAUSE, DUE TO THE STATUTE'S COMPULSION TO CLOSE ON SUNDAY, APPELLANTS
WILL SUFFER SUBSTANTIAL ECONOMIC LOSS, TO THE BENEFIT OF THEIR NON
SABBATARIAN COMPETITORS, IF APPELLANTS ALSO CONTINUE THEIR SABBATH
OBSERVANCE BY CLOSING THEIR BUSINESSES ON SATURDAY; THAT THIS RESULT
WILL EITHER COMPEL APPELLANTS TO GIVE UP THEIR SABBATH OBSERVANCE, A
BASIC TENET OF THE ORTHODOX JEWISH FAITH, OR WILL PUT APPELLANTS AT A
SERIOUS ECONOMIC DISADVANTAGE IF THEY CONTINUE TO ADHERE TO THEIR
SABBATH.  APPELLANTS ALSO ASSERT THAT THE STATUTE WILL OPERATE SO AS TO
HINDER THE ORTHODOX JEWISH FAITH IN GAINING NEW ADHERENTS.  AND THE
COROLLARY TO THESE ARGUMENTS IS THAT IF THE FREE EXERCISE OF
APPELLANTS' RELIGION IS IMPEDED, THAT RELIGION IS BEING SUBJECTED TO
DISCRIMINATORY TREATMENT BY THE STATE. 

IN MCGOWAN V. MARYLAND, ANTE, AT PP. 437-440, WE NOTED THE
SIGNIFICANCE THAT THIS COURT HAS ATTRIBUTED TO THE DEVELOPMENT OF
RELIGIOUS FREEDOM IN VIRGINIA IN DETERMINING THE SCOPE OF THE FIRST
AMENDMENT'S PROTECTION.  WE OBSERVED THAT WHEN VIRGINIA PASSED ITS
DECLARATION OF RIGHTS IN 1776, PROVIDING THAT "ALL MEN ARE EQUALLY
ENTITLED TO THE FREE EXERCISE OF RELIGION," VIRGINIA REPEALED ITS LAWS
WHICH IN ANY WAY PENALIZED "MAINTAINING ANY OPINIONS IN MATTERS OF
RELIGION, FORBEARING TO REPAIR TO CHURCH, OR THE EXERCISING ANY MODE OF
WORSHIP WHATSOEVER."  BUT VIRGINIA RETAINED ITS LAWS PROHIBITING SUNDAY
LABOR. 

WE ALSO TOOK COGNIZANCE, IN MCGOWAN, OF THE EVOLUTION OF SUNDAY
CLOSING LAWS FROM WHOLLY RELIGIOUS SANCTIONS TO LEGISLATION CONCERNED
WITH THE ESTABLISHMENT OF A DAY OF COMMUNITY TRANQUILLITY, RESPITE AND
RECREATION, A DAY WHEN THE ATMOSPHERE IS ONE OF CALM AND RELAXATION
RATHER THAN ONE OF COMMERCIALISM, AS IT IS DURING THE OTHER SIX DAYS OF
THE WEEK.  WE REVIEWED THE STILL GROWING STATE PREOCCUPATION WITH
IMPROVING THE HEALTH, SAFETY, MORALS AND GENERAL WELL-BEING OF OUR
CITIZENS. 

CONCEDEDLY, APPELLANTS AND ALL OTHER PERSONS WHO WISH TO WORK ON
SUNDAY WILL BE BURDENED ECONOMICALLY BY THE STATE'S DAY OF REST
MANDATE; AND APPELLANTS POINT OUT THAT THEIR RELIGION REQUIRES THEM TO
REFRAIN FROM WORK ON SATURDAY AS WELL.  OUR INQUIRY THEN IS WHETHER, IN
THESE CIRCUMSTANCES, THE FIRST AND FOURTEENTH AMENDMENTS FORBID
APPLICATION OF THE SUNDAY CLOSING LAW TO APPELLANTS. 

CERTAIN ASPECTS OF RELIGIOUS EXERCISE CANNOT, IN ANY WAY, BE
RESTRICTED OR BURDENED BY EITHER FEDERAL OR STATE LEGISLATION. 
COMPULSION BY LAW OF THE ACCEPTANCE OF ANY CREED OR THE PRACTICE OF ANY
FORM OF WORSHIP IS STRICTLY FORBIDDEN.  THE FREEDOM TO HOLD RELIGIOUS
BELIEFS AND OPINIONS IS ABSOLUTE.  CANTWELL V. CONNECTICUT, 310 U.S.
296, 303; REYNOLDS V. UNITED STATES, 98 U.S. 145, 166.   THUS, IN WEST
VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, THIS COURT
HELD THAT STATE ACTION COMPELLING SCHOOL CHILDREN TO SALUTE THE FLAG,
ON PAIN OF EXPULSION FROM PUBLIC SCHOOL, WAS CONTRARY TO THE FIRST AND
FOURTEENTH AMENDMENTS WHEN APPLIED TO THOSE STUDENTS WHOSE RELIGIOUS
BELIEFS FORBADE SALUTING A FLAG.  BUT THIS IS NOT THE CASE AT BAR; THE
STATUTE BEFORE US DOES NOT MAKE CRIMINAL THE HOLDING OF ANY RELIGIOUS
BELIEF OR OPINION, NOR DOES IT FORCE ANYONE TO EMBRACE ANY RELIGIOUS
BELIEF OR TO SAY OR BELIEVE ANYTHING IN CONFLICT WITH HIS RELIGIOUS
TENETS. 

HOWEVER, THE FREEDOM TO ACT, EVEN WHEN THE ACTION IS IN ACCORD WITH
ONE'S RELIGIOUS CONVICTIONS, IS NOT TOTALLY FREE FROM LEGISLATIVE
RESTRICTIONS.  CANTWELL V. CONNECTICUT, SUPRA, AT PP. 303-304, 306.  AS
POINTED OUT IN REYNOLDS V. UNITED STATES, SUPRA, AT P. 164, LEGISLATIVE
POWER OVER MERE OPINION IS FORBIDDEN BUT IT MAY REACH PEOPLE'S ACTIONS
WHEN THEY ARE FOUND TO BE IN VIOLATION OF IMPORTANT SOCIAL DUTIES OR
SUBVERSIVE OF GOOD ORDER, EVEN WHEN THE ACTIONS ARE DEMANDED BY ONE'S
RELIGION.  THIS WAS ARTICULATED BY THOMAS JEFFERSON WHEN HE SAID: 

"BELIEVING WITH YOU THAT RELIGION IS A MATTER WHICH LIES SOLELY
BETWEEN MAN AND HIS GOD, THAT HE OWES ACCOUNT TO NONE OTHER FOR HIS
FAITH OR HIS WORSHIP, THAT THE LEGISLATIVE POWERS OF GOVERNMENT REACH
ACTIONS ONLY, AND NOT OPINIONS, I CONTEMPLATE WITH SOVEREIGN REVERENCE
THAT ACT OF THE WHOLE AMERICAN PEOPLE WHICH DECLARED THAT THEIR
LEGISLATURE SHOULD 'MAKE NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF,' THUS BUILDING A
WALL OF SEPARATION BETWEEN CHURCH AND STATE.  ADHERING TO THIS
EXPRESSION OF THE SUPREME WILL OF THE NATION IN BEHALF OF THE RIGHTS OF
CONSCIENCE, I SHALL SEE WITH SINCERE SATISFACTION THE PROGRESS OF THOSE
SENTIMENTS WHICH TEND TO RESTORE TO MAN ALL HIS NATURAL RIGHTS,
CONVINCED HE HAS NO NATURAL RIGHT IN OPPOSITION TO HIS SOCIAL DUTIES." 
8 WORKS OF THOMAS JEFFERSON 113.  (FN2) 

AND, IN THE BARNETTE CASE, THE COURT WAS CAREFUL TO POINT OUT THAT
"THE FREEDOM ASSERTED BY THESE APPELLEES DOES NOT BRING THEM INTO
COLLISION WITH RIGHTS ASSERTED BY ANY OTHER INDIVIDUAL.  IT IS SUCH
CONFLICTS WHICH MOST FREQUENTLY REQUIRE INTERVENTION OF THE STATE TO
DETERMINE WHERE THE RIGHTS OF ONE END AND THOSE OF ANOTHER BEGIN  ...
.  IT IS  ...  TO BE NOTED THAT THE COMPULSORY FLAG SALUTE AND PLEDGE
REQUIRES AFFIRMATION OF A BELIEF AND AN ATTITUDE OF MIND."  319 U.S.,
AT 630, 633. 

THUS, IN REYNOLDS V. UNITED STATES, THIS COURT UPHELD THE POLYGAMY
CONVICTION OF A MEMBER OF THE MORMON FAITH DESPITE THE FACT THAT AN
ACCEPTED DOCTRINE OF HIS CHURCH THEN IMPOSED UPON ITS MALE MEMBERS THE
DUTY TO PRACTICE POLYGAMY.  AND, IN PRINCE V. MASSACHUSETTS, 321 U.S.
158, THIS COURT UPHELD A STATUTE MAKING IT A CRIME FOR A GIRL UNDER
EIGHTEEN YEARS OF AGE TO SELL ANY NEWSPAPERS, PERIODICALS OR
MERCHANDISE IN PUBLIC PLACES DESPITE THE FACT THAT A CHILD OF THE
JEHOVAH'S WITNESSES FAITH BELIEVED THAT IT WAS HER RELIGIOUS DUTY TO
PERFORM THIS WORK. 

IT IS TO BE NOTED THAT, IN THE TWO CASES JUST MENTIONED, THE
RELIGIOUS PRACTICES THEMSELVES CONFLICTED WITH THE PUBLIC INTEREST.  IN
SUCH CASES, TO MAKE ACCOMMODATION BETWEEN THE RELIGIOUS ACTION AND AN
EXERCISE OF STATE AUTHORITY IS A PARTICULARLY DELICATE TASK, ID., AT
165, BECAUSE RESOLUTION IN FAVOR OF THE STATE RESULTS IN THE CHOICE TO
THE INDIVIDUAL OF EITHER ABANDONING HIS RELIGIOUS PRINCIPLE OR FACING
CRIMINAL PROSECUTION. 

BUT, AGAIN, THIS IS NOT THE CASE BEFORE US BECAUSE THE STATUTE AT BAR
DOES NOT MAKE UNLAWFUL ANY RELIGIOUS PRACTICES OF APPELLANTS; THE
SUNDAY LAW SIMPLY REGULATES A SECULAR ACTIVITY AND, AS APPLIED TO
APPELLANTS, OPERATES SO AS TO MAKE THE PRACTICE OF THEIR RELIGIOUS
BELIEFS MORE EXPENSIVE.  FURTHERMORE, THE LAW'S EFFECT DOES NOT
INCONVENIENCE ALL MEMBERS OF THE ORTHODOX JEWISH FAITH BUT ONLY THOSE
WHO BELIEVE IT NECESSARY TO WORK ON SUNDAY.  (FN3)  AND EVEN THESE ARE
NOT FACED WITH AS SERIOUS A CHOICE AS FORSAKING THEIR RELIGIOUS
PRACTICES OR SUBJECTING THEMSELVES TO CRIMINAL PROSECUTION.  FULLY
RECOGNIZING THAT THE ALTERNATIVES OPEN TO APPELLANTS AND OTHERS
SIMILARLY SITUATED - RETAINING THEIR PRESENT OCCUPATIONS AND INCURRING
ECONOMIC DISADVANTAGE OR ENGAGING IN SOME OTHER COMMERCIAL ACTIVITY
WHICH DOES NOT CALL FOR EITHER SATURDAY OR SUNDAY LABOR - MAY WELL
RESULT IN SOME FINANCIAL SACRIFICE IN ORDER TO OBSERVE THEIR RELIGIOUS
BELIEFS, STILL THE OPTION IS WHOLLY DIFFERENT THAN WHEN THE LEGISLATION
ATTEMPTS TO MAKE A RELIGIOUS PRACTICE ITSELF UNLAWFUL. 

TO STRIKE DOWN, WITHOUT THE MOST CRITICAL SCRUTINY, LEGISLATION WHICH
IMPOSES ONLY AN INDIRECT BURDEN ON THE EXERCISE OF RELIGION, I.E.,
LEGISLATION WHICH DOES NOT MAKE UNLAWFUL THE RELIGIOUS PRACTICE ITSELF,
WOULD RADICALLY RESTRICT THE OPERATING LATITUDE OF THE LEGISLATURE. 
STATUTES WHICH TAX INCOME AND LIMIT THE AMOUNT WHICH MAY BE DEDUCTED
FOR RELIGIOUS CONTRIBUTIONS IMPOSE AN INDIRECT ECONOMIC BURDEN ON THE
OBSERVANCE OF THE RELIGION OF THE CITIZEN WHOSE RELIGION REQUIRES HIM
TO DONATE A GREATER AMOUNT TO HIS CHURCH; STATUTES WHICH REQUIRE THE
COURTS TO BE CLOSED ON SATURDAY AND SUNDAY IMPOSE A SIMILAR INDIRECT
BURDEN ON THE OBSERVANCE OF THE RELIGION OF THE TRIAL LAWYER WHOSE
RELIGION REQUIRES HIM TO REST ON A WEEKDAY.  THE LIST OF LEGISLATION OF
THIS NATURE IS NEARLY LIMITLESS. 

NEEDLESS TO SAY, WHEN ENTERING THE AREA OF RELIGIOUS FREEDOM, WE MUST
BE FULLY COGNIZANT OF THE PARTICULAR PROTECTION THAT THE CONSTITUTION
HAS ACCORDED IT.  ABHORENCE OF RELIGIOUS PERSECUTION AND INTOLERANCE IS
A BASIC PART OF OUR HERITAGE.  BUT WE ARE A COSMOPOLITAN NATION MADE UP
OF PEOPLE OF ALMOST EVERY CONCEIVABLE RELIGIOUS PREFERENCE.  THESE
DENOMINATIONS NUMBER ALMOST THREE HUNDRED.  YEAR BOOK OF AMERICAN
CHURCHES FOR 1958, 257 ET SEQ. CONSEQUENTLY, IT CANNOT BE EXPECTED,
MUCH LESS REQUIRED, THAT LEGISLATORS ENACT NO LAW REGULATING CONDUCT
THAT MAY IN SOME WAY RESULT IN AN ECONOMIC DISADVANTAGE TO SOME
RELIGIOUS SECTS AND NOT TO OTHERS BECAUSE OF THE SPECIAL PRACTICES OF
THE VARIOUS RELIGIONS.  WE DO NOT BELIEVE THAT SUCH AN EFFECT IS AN
ABSOLUTE TEST FOR DETERMINING WHETHER THE LEGISLATION VIOLATES THE
FREEDOM OF RELIGION PROTECTED BY THE FIRST AMENDMENT. 

OF COURSE, TO HOLD UNASSAILABLE ALL LEGISLATION REGULATING CONDUCT
WHICH IMPOSES SOLELY AN INDIRECT BURDEN ON THE OBSERVANCE OF RELIGION
WOULD BE A GROSS OVERSIMPLIFICATION.  IF THE PURPOSE OR EFFECT OF A LAW
IS TO IMPEDE THE OBSERVANCE OF ONE OR ALL RELIGIONS OR IS TO
DISCRIMINATE INVIDIOUSLY BETWEEN RELIGIONS, THAT LAW IS
CONSTITUTIONALLY INVALID EVEN THOUGH THE BURDEN MAY BE CHARACTERIZED AS
BEING ONLY INDIRECT.  BUT IF THE STATE REGULATES CONDUCT BY ENACTING A
GENERAL LAW WITHIN ITS POWER, THE PURPOSE AND EFFECT OF WHICH IS TO
ADVANCE THE STATE'S SECULAR GOALS, THE STATUTE IS VALID DESPITE ITS
INDIRECT BURDEN ON RELIGIOUS OBSERVANCE UNLESS THE STATE MAY ACCOMPLISH
ITS PURPOSE BY MEANS WHICH DO NOT IMPOSE SUCH A BURDEN.  SEE CANTWELL
V. CONNECTICUT, SUPRA, AT PP. 304-305.  (FN4) 

AS WE POINTED OUT IN MCGOWAN V. MARYLAND, SUPRA, AT PP. 444-445, WE
CANNOT FIND A STATE WITHOUT POWER TO PROVIDE A WEEKLY RESPITE FROM ALL
LABOR AND, AT THE SAME TIME, TO SET ONE DAY OF THE WEEK APART FROM THE
OTHERS AS A DAY OF REST, REPOSE, RECREATION AND TRANQUILLITY - A DAY
WHEN THE HECTIC TEMPO OF EVERYDAY EXISTENCE CEASES AND A MORE PLEASANT
ATMOSPHERE IS CREATED, A DAY WHICH ALL MEMBERS OF THE FAMILY AND
COMMUNITY HAVE THE OPPORTUNITY TO SPEND AND ENJOY TOGETHER, A DAY ON
WHICH PEOPLE MAY VISIT FRIENDS AND RELATIVES WHO ARE NOT AVAILABLE
DURING WORKING DAYS, A DAY WHEN THE WEEKLY LABORER MAY BEST REGENERATE
HIMSELF.  THIS IS PARTICULARLY TRUE IN THIS DAY AND AGE OF INCREASING
STATE CONCERN WITH PUBLIC WELFARE LEGISLATION. 

ALSO, IN MCGOWAN, WE EXAMINED SEVERAL SUGGESTED ALTERNATIVE MEANS BY
WHICH IT WAS ARGUED THAT THE STATE MIGHT ACCOMPLISH ITS SECULAR GOALS
WITHOUT EVEN REMOTELY OR INCIDENTALLY AFFECTING RELIGIOUS FREEDOM. 
ANTE, AT PP. 450-452.  WE FOUND THERE THAT A STATE MIGHT WELL FIND THAT
THOSE ALTERNATIVES WOULD NOT ACCOMPLISH BRINGING ABOUT A GENERAL DAY OF
REST.  WE NEED NOT EXAMINE THEM AGAIN HERE.    HOWEVER, APPELLANTS
ADVANCE YET ANOTHER MEANS AT THE STATE'S DISPOSAL WHICH THEY WOULD FIND
UNOBJECTIONABLE.  THEY CONTEND THAT THE STATE SHOULD CUT AN EXCEPTION
FROM THE SUNDAY LABOR PROSCRIPTION FOR THOSE PEOPLE WHO, BECAUSE OF
RELIGIOUS CONVICTION, OBSERVE A DAY OF REST OTHER THAN SUNDAY.  BY SUCH
REGULATION, APPELLANTS CONTEND, THE ECONOMIC DISADVANTAGES IMPOSED BY
THE PRESENT SYSTEM WOULD BE REMOVED AND THE STATE'S INTEREST IN HAVING
ALL PEOPLE REST ONE DAY WOULD BE SATISFIED.    A NUMBER OF STATES
PROVIDE SUCH AN EXEMPTION, (FN5) AND THIS MAY WELL BE THE WISER
SOLUTION TO THE PROBLEM.  BUT OUR CONCERN IS NOT WITH THE WISDOM OF
LEGISLATION BUT WITH ITS CONSTITUTIONAL LIMITATION.  THUS, REASON AND
EXPERIENCE TEACH THAT TO PERMIT THE EXEMPTION MIGHT WELL UNDERMINE THE
STATE'S GOAL OF PROVIDING A DAY THAT, AS BEST POSSIBLE, ELIMINATES THE
ATMOSPHERE OF COMMERCIAL NOISE AND ACTIVITY.  ALTHOUGH NOT DISPOSITIVE
OF THE ISSUE, ENFORCEMENT PROBLEMS WOULD BE MORE DIFFICULT SINCE THERE
WOULD BE TWO OR MORE DAYS TO POLICE RATHER THAN ONE AND IT WOULD BE
MORE DIFFICULT TO OBSERVE WHETHER VIOLATIONS WERE OCCURRING. 

ADDITIONAL PROBLEMS MIGHT ALSO BE PRESENTED BY A REGULATION OF THIS
SORT.  TO ALLOW ONLY PEOPLE WHO REST ON A DAY OTHER THAN SUNDAY TO KEEP
THEIR BUSINESSES OPEN ON THAT DAY MIGHT WELL PROVIDE THESE PEOPLE WITH
AN ECONOMIC ADVANTAGE OVER THEIR COMPETITORS WHO MUST REMAIN CLOSED ON
THAT DAY; (FN6) THIS MIGHT CAUSE THE SUNDAY-OBSERVERS TO COMPLAIN THAT
THEIR RELIGIONS ARE BEING DISCRIMINATED AGAINST.  WITH THIS COMPETITIVE
ADVANTAGE EXISTING, THERE COULD WELL BE THE TEMPTATION FOR SOME, IN
ORDER TO KEEP THEIR BUSINESSES OPEN ON SUNDAY, TO ASSERT THAT THEY HAVE
RELIGIOUS CONVICTIONS WHICH COMPEL THEM TO CLOSE THEIR BUSINESSES ON
WHAT HAD FORMERLY BEEN THEIR LEAST PROFITABLE DAY.  THIS MIGHT MAKE
NECESSARY A STATE-CONDUCTED INQUIRY INTO THE SINCERITY OF THE
INDIVIDUAL'S RELIGIOUS BELIEFS, (FN7) A PRACTICE WHICH A STATE MIGHT
BELIEVE WOULD ITSELF RUN AFOUL OF THE SPIRIT OF CONSTITUTIONALLY
PROTECTED RELIGIOUS GUARANTEES.  FINALLY, IN ORDER TO KEEP THE
DISRUPTION OF THE DAY AT A MINIMUM, EXEMPTED EMPLOYERS WOULD PROBABLY
HAVE TO HIRE EMPLOYEES WHO THEMSELVES QUALIFIED FOR THE EXEMPTION
BECAUSE OF THEIR OWN RELIGIOUS BELIEFS, (FN8) A PRACTICE WHICH A STATE
MIGHT FEEL TO BE OPPOSED TO ITS GENERAL POLICY PROHIBITING RELIGIOUS
DISCRIMINATION IN HIRING.  (FN9)  FOR ALL OF THESE REASONS, WE CANNOT
SAY THAT THE PENNSYLVANIA STATUTE BEFORE US IS INVALID, EITHER ON ITS
FACE OR AS APPLIED. 

MR. JUSTICE HARLAN CONCURS IN THE JUDGMENT.  MR. JUSTICE BRENNAN AND
MR. JUSTICE STEWART CONCUR IN OUR DISPOSITION OF APPELLANTS' CLAIMS
UNDER THE ESTABLISHMENT CLAUSE AND THE EQUAL PROTECTION CLAUSE.  MR.
JUSTICE FRANKFURTER AND MR. JUSTICE HARLAN HAVE REJECTED APPELLANTS'
CLAIM UNDER THE FREE EXERCISE CLAUSE IN A SEPARATE OPINION. 

ACCORDINGLY, THE DECISION IS AFFIRMED. 

FN1  18 PURDON'S PA. STAT. ANN. (1960 CUM. SUPP.) SEC. 4699.10
PROVIDES: 

"SELLING CERTAIN PERSONAL PROPERTY ON SUNDAY: 

"WHOEVER ENGAGES ON SUNDAY IN THE BUSINESS OF SELLING, OR SELLS OR
OFFERS FOR SALE, ON SUCH DAY, AT RETAIL, CLOTHING AND WEARING APPAREL,
CLOTHING ACCESSORIES, FURNITURE, HOUSEWARES, HOME, BUSINESS OR OFFICE
FURNISHINGS, HOUSEHOLD, BUSINESS OR OFFICE APPLIANCES, HARDWARE, TOOLS,
PAINTS, BUILDING AND LUMBER SUPPLY MATERIALS, JEWELRY, SILVERWARE,
WATCHES, CLOCKS, LUGGAGE, MUSICAL INSTRUMENTS AND RECORDINGS, OR TOYS,
EXCLUDING NOVELTIES AND SOUVENIRS, SHALL, UPON CONVICTION THEREOF IN A
SUMMARY PROCEEDING FOR THE FIRST OFFENSE, BE SENTENCED TO PAY A FINE OF
NOT EXCEEDING ONE HUNDRED DOLLARS ($100), AND FOR THE SECOND OR ANY
SUBSEQUENT OFFENSE COMMITTED WITHIN ONE YEAR AFTER CONVICTION FOR THE
FIRST OFFENSE, BE SENTENCED TO PAY A FINE OF NOT EXCEEDING TWO HUNDRED
DOLLARS ($200) OR UNDERGO IMPRISONMENT NOT EXCEEDING THIRTY DAYS IN
DEFAULT THEREOF. 

"EACH SEPARATE SALE OR OFFER TO SELL SHALL CONSTITUTE A SEPARATE
OFFENSE. 

"INFORMATION CHARGING VIOLATIONS OF THIS SECTION SHALL BE BROUGHT
WITHIN SEVENTY-TWO HOURS AFTER THE COMMISSION OF THE ALLEGED OFFENSE
AND NOT THEREAFTER." 

FN2  OLIVER ELLSWORTH, A MEMBER OF THE CONSTITUTIONAL CONVENTION AND
LATER CHIEF JUSTICE, WROTE: 

"BUT WHILE I ASSERT THE RIGHTS OF RELIGIOUS LIBERTY, I WOULD NOT DENY
THAT THE CIVIL POWER HAS A RIGHT, IN SOME CASES, TO INTERFERE IN
MATTERS OF RELIGION.  IT HAS A RIGHT TO PROHIBIT AND PUNISH GROSS
IMMORALITIES AND IMPIETIES; BECAUSE THE OPEN PRACTICE OF THESE IS OF
EVIL EXAMPLE AND DETRIMENT."  WRITTEN IN THE CONNECTICUT COURANT, DEC.
17, 1787, AS QUOTED IN 1 STOKES, CHURCH AND STATE IN THE UNITED STATES,
535. 

FN3  SEE THE CONCURRING OPINION OF MR. JUSTICE CARDOZO, JOINED BY MR.
JUSTICE BRANDEIS AND MR. JUSTICE STONE, IN HAMILTON V. REGENTS, 293
U.S. 245, 265-268. 

FN4  THUS IN CASES LIKE MURDOCK V. PENNSYLVANIA, 319 U.S. 105, AND
FOLLETT V. MCCORMICK, 321 U.S. 573, THIS COURT STRUCK DOWN MUNICIPAL
ORDINANCES WHICH, IN APPLICATION, REQUIRED RELIGIOUS COLPORTEURS TO PAY
A LICENSE TAX AS A CONDITION TO THE PURSUIT OF THEIR ACTIVITIES BECAUSE
THE STATE'S INTEREST, THE OBTAINING OF REVENUE, COULD BE EASILY
SATISFIED BY IMPOSING THIS TAX ON NONRELIGIOUS SOURCES. 

FN5  E.G., IND. ANN. STAT. SEC. 10-4301. 

FN6  "IF HE (THE ORTHODOX JEWISH STOREKEEPER) OPENS ON SATURDAY, HE
IS SUBJECTED TO VERY FIERCE COMPETITION INDEED FROM CHRISTIAN
SHOPKEEPERS, WHEREAS ON SUNDAY, SUPPOSING HE CLOSES ON SATURDAY, HE HAS
AN ABSOLUTELY FREE RUN AND NO COMPETITION FROM CHRISTIAN SHOPKEEPERS AT
ALL."  311 PARLIAMENTARY DEBATES, COMMONS, 492. 

"IT IS TRUE THAT THE ORTHODOX JEW WILL ONLY BE ALLOWED TO TRADE UNTIL
TWO O'CLOCK ON SUNDAY, BUT DURING THAT TIME HE WILL HAVE A MONOPOLY. 
THAT IS A TREMENDOUS ADVANTAGE.  IN MANY DISTRICTS HE WILL BE THE ONLY
TRADER WITH A SHOP OPEN IN THAT DISTRICT."  101 PARLIAMENTARY DEBATES,
LORDS, 430. 

FN7  CONNECTICUT, WHICH HAS SUCH AN EXEMPTION STATUTE, REQUIRES THAT
SABBATARIANS, IN ORDER TO QUALIFY, FILE A WRITTEN NOTICE OF RELIGIOUS
BELIEF WITH THE PROSECUTING ATTORNEY.  CONN. GEN. STAT. REV. SEC. 53
303. 

FN8  E.G., VA. CODE ANN., SEC. 18.1-359. 

FN9  E.G., 43 PURDON'S PA. STAT. ANN. (1960 CUM. SUPP.) SECS. 951
963. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE HARLAN,
SEE ANTE, P. 459. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 561. 

MR. JUSTICE BRENNAN, CONCURRING AND DISSENTING. 

I AGREE WITH THE CHIEF JUSTICE THAT THERE IS NO MERIT IN APPELLANTS'
ESTABLISHMENT AND EQUAL-PROTECTION CLAIMS.  I DISSENT, HOWEVER, AS TO
THE CLAIM THAT PENNSYLVANIA HAS PROHIBITED THE FREE EXERCISE OF
APPELLANTS' RELIGION. 

THE COURT HAS DEMONSTRATED THE PUBLIC NEED FOR A WEEKLY SURCEASE FROM
WORLDLY LABOR, AND SET FORTH THE CONSIDERATIONS OF CONVENIENCE WHICH
HAVE LED THE COMMONWEALTH OF PENNSYLVANIA TO FIX SUNDAY AS THE TIME FOR
THAT RESPITE.  I WOULD APPROACH THIS CASE DIFFERENTLY, FROM THE POINT
OF VIEW OF THE INDIVIDUALS WHOSE LIBERTY IS - CONCEDEDLY - CURTAILED BY
THESE ENACTMENTS.  FOR THE VALUES OF THE FIRST AMENDMENT, AS EMBODIED
IN THE FOURTEENTH, LOOK PRIMARILY TOWARDS THE PRESERVATION OF PERSONAL
LIBERTY, RATHER THAN TOWARDS THE FULFILLMENT OF COLLECTIVE GOALS. 

THE APPELLANTS ARE SMALL RETAIL MERCHANTS, FAITHFUL PRACTITIONERS OF
THE ORTHODOX JEWISH FAITH.  THEY ALLEGE - AND THE ALLEGATION MUST BE
TAKEN AS TRUE, SINCE THE CASE COMES TO US ON A MOTION TO DISMISS THE
COMPLAINT - THAT "  ...  ONE WHO DOES NOT OBSERVE THE SABBATH (BY
REFRAINING FROM LABOR)  ...  CANNOT BE AN ORTHODOX JEW."  IN
APPELLANTS' BUSINESS AREA FRIDAY NIGHT AND SATURDAY ARE BUSY TIMES; YET
APPELLANTS, TRUE TO THEIR FAITH, CLOSE DURING THE JEWISH SABBATH, AND
MAKE UP SOME, BUT NOT ALL, OF THE BUSINESS THUS LOST BY OPENING ON
SUNDAY.  "EACH OF THE PLAINTIFFS," THE COMPLAINT CONTINUES, "DOES A
SUBSTANTIAL AMOUNT OF BUSINESS ON SUNDAYS, AND THE ABILITY OF THE
PLAINTIFFS TO EARN A LIVELIHOOD WILL BE GREATLY IMPAIRED BY CLOSING
THEIR BUSINESS ESTABLISHMENT ON SUNDAYS."  CONSEQUENCES EVEN MORE
DRASTIC ARE ALLEGED:  "PLAINTIFF, ABRAHAM BRAUNFELD, WILL BE UNABLE TO
CONTINUE IN HIS BUSINESS IF HE MAY NOT STAY OPEN ON SUNDAY AND HE WILL
THEREBY LOSE HIS CAPITAL INVESTMENT."  IN OTHER WORDS, THE ISSUE IN
THIS CASE - AND WE DO NOT UNDERSTAND EITHER APPELLEES OR THE COURT TO
CONTEND OTHERWISE - IS WHETHER A STATE MAY PUT AN INDIVIDUAL TO A
CHOICE BETWEEN HIS BUSINESS AND HIS RELIGION.  THE COURT TODAY HOLDS
THAT IT MAY.  BUT I DISSENT, BELIEVING THAT SUCH A LAW PROHIBITS THE
FREE EXERCISE OF RELIGION. 

THE FIRST QUESTION TO BE RESOLVED, HOWEVER, IS SOMEWHAT BROADER THAN
THE FACTS OF THIS CASE.  THAT QUESTION CONCERNS THE APPROPRIATE
STANDARD OF CONSTITUTIONAL ADJUDICATION IN CASES IN WHICH A STATUTE IS
ASSERTEDLY IN CONFLICT WITH THE FIRST AMENDMENT, WHETHER THAT
LIMITATION APPLIES OF ITS OWN FORCE, OR AS ABSORBED THROUGH THE LESS
DEFINITE WORDS OF THE FOURTEENTH AMENDMENT.  THE COURT IN SUCH CASES IS
NOT CONFINED TO THE NARROW INQUIRY WHETHER THE CHALLENGED LAW IS
RATIONALLY RELATED TO SOME LEGITIMATE LEGISLATIVE END.  NOR IS THE CASE
DECIDED BY A FINDING THAT THE STATE'S INTEREST IS SUBSTANTIAL AND
IMPORTANT, AS WELL AS RATIONALLY JUSTIFIABLE.  THIS CANON OF
ADJUDICATION WAS CLEARLY STATED BY MR. JUSTICE JACKSON, SPEAKING FOR
THE COURT IN WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319
U.S. 624, 639 (1943): 

"IN WEIGHING ARGUMENTS OF THE PARTIES IT IS IMPORTANT TO DISTINGUISH
BETWEEN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AS AN
INSTRUMENT FOR TRANSMITTING THE PRINCIPLES OF THE FIRST AMENDMENT AND
THOSE CASES IN WHICH IT IS APPLIED FOR ITS OWN SAKE.  THE TEST OF
LEGISLATION WHICH COLLIDES WITH THE FOURTEENTH AMENDMENT, BECAUSE IT
ALSO COLLIDES WITH THE PRINCIPLES OF THE FIRST, IS MUCH MORE DEFINITE
THAN THE TEST WHEN ONLY THE FOURTEENTH IS INVOLVED.  MUCH OF THE
VAGUENESS OF THE DUE PROCESS CLAUSE DISAPPEARS WHEN THE SPECIFIC
PROHIBIITONS OF THE FIRST BECOME ITS STANDARD.  THE RIGHT OF A STATE TO
REGULATE, FOR EXAMPLE, A PUBLIC UTILITY MAY WELL INCLUDE, SO FAR AS THE
DUE PROCESS TEST IS CONCERNED, POWER TO IMPOSE ALL OF THE RESTRICTIONS
WHICH A LEGISLATURE MAY HAVE A 'RATIONAL BASIS' FOR ADOPTING.  BUT
FREEDOMS OF SPEECH AND OF PRESS, OF ASSEMBLY, AND OF WORSHIP MAY NOT BE
INFRINGED ON SUCH SLENDER GROUNDS.  THEY ARE SUSCEPTIBLE OF RESTRICTION
ONLY TO PREVENT GRAVE AND IMMEDIATE DANGER TO INTERESTS WHICH THE STATE
MAY LAWFULLY PROTECT.  IT IS IMPORTANT TO NOTE THAT WHILE IT IS THE
FOURTEENTH AMENDMENT WHICH BEARS DIRECTLY UPON THE STATE IT IS THE MORE
SPECIFIC LIMITING PRINCIPLES OF THE FIRST AMENDMENT THAT FINALLY GOVERN
THIS CASE." 

THIS EXACTING STANDARD HAS BEEN CONSISTENTLY APPLIED BY THIS COURT AS
THE TEST OF LEGISLATION UNDER ALL CLAUSES OF THE FIRST AMENDMENT, NOT
ONLY THOSE SPECIFICALLY DEALING WITH FREEDOM OF SPEECH AND OF THE
PRESS.  FOR RELIGIOUS FREEDOM - THE FREEDOM TO BELIEVE AND TO PRACTICE
STRANGE AND, IT MAY BE, FOREIGN CREEDS - HAS CLASSICALLY BEEN ONE OF
THE HIGHEST VALUES OF OUR SOCIETY.  SEE, E.G., MURDOCK V. PENNSYLVANIA,
319 U.S. 105, 115 (1943); JONES V. CITY OF OPELIKA, 319 U.S. 103
(1943); MARTIN V. CITY OF STRUTHERS, 319 U.S. 141 (1943); FOLLETT V.
TOWN OF MCCORMICK, 321 U.S. 573 (1944); MARSH V. ALABAMA, 326 U.S. 501,
510 (1946).  EVEN THE MOST CONCENTRATED AND FULLY ARTICULATED ATTACK ON
THIS HIGH STANDARD HAS SEEMINGLY ADMITTED ITS VALIDITY IN PRINCIPLE,
WHILE DEPLORING SOME INCIDENTAL PHRASEOLOGY.  SEE KOVACS V. COOPER, 336
U.S. 77, 89, 95-96 (1949)(CONCURRING OPINION); BUT CF. ULLMANN V.
UNITED STATES, 350 U.S. 422 (1956).  THE HONORED PLACE OF RELIGIOUS
FREEDOM IN OUR CONSTITUTIONAL HIERARCHY, SUGGESTED LONG AGO BY THE
ARGUMENT OF COUNSEL IN PERMOLI V. MUNICIPALITY NO. 1 OF THE CITY OF NEW
ORLEANS, 3 HOW.  589, 600 (1845), AND FORESHADOWED BY A PRESCIENT
FOOTNOTE IN UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 152,
N. 4 (1938), MUST NOW BE TAKEN TO BE SETTLED.  OR AT LEAST SO IT
APPEARED UNTIL TODAY.  FOR IN THIS CASE THE COURT SEEMS TO SAY, WITHOUT
SO MUCH AS A DEFERENTIAL NOD TOWARDS THAT HIGH PLACE WHICH WE HAVE
ACCORDED RELIGIOUS FREEDOM IN THE PAST, THAT ANY SUBSTANTIAL STATE
INTEREST WILL JUSTIFY ENCROACHMENTS ON RELIGIOUS PRACTICE, AT LEAST IF
THOSE ENCROACHMENTS ARE CLOAKED IN THE GUISE OF SOME NONRELIGIOUS
PUBLIC PURPOSE. 

ADMITTEDLY, THESE LAWS DO NOT COMPEL OVERT AFFIRMATION OF A REPUGNANT
BELIEF, AS IN BARNETTE, NOR DO THEY PROHIBIT OUTRIGHT ANY OF
APPELLANTS' RELIGIOUS PRACTICES, AS DID THE FEDERAL LAW UPHELD IN
REYNOLDS V. UNITED STATES, 98 U.S. 145 (1878), CITED BY THE COURT. 
THAT IS, THE LAWS DO NOT SAY THAT APPELLANTS MUST WORK ON SATURDAY. 
BUT THEIR EFFECT IS THAT APPELLANTS MAY NOT SIMULTANEOUSLY PRACTICE
THEIR RELIGION AND THEIR TRADE, WITHOUT BEING HAMPERED BY A SUBSTANTIAL
COMPETITIVE DISADVANTAGE.  THEIR EFFECT IS THAT NO ONE MAY AT ONE AND
THE SAME TIME BE AN ORTHODOX JEW AND COMPETE EFFECTIVELY WITH HIS
SUNDAY-OBSERVING FELLOW TRADESMEN.  THIS CLOG UPON THE EXERCISE OF
RELIGION, THIS STATE-IMPOSED BURDEN ON ORTHODOX JUDAISM, HAS EXACTLY
THE SAME ECONOMIC EFFECT AS A TAX LEVIED UPON THE SALE OF RELIGIOUS
LITERATURE.  AND YET, SUCH A TAX, WHEN APPLIED IN THE FORM OF AN EXCISE
OR LICENSE FEE, WAS HELD INVALID IN FOLLETT V. TOWN OF MCCORMICK,
SUPRA.  ALL THIS THE COURT, AS I READ ITS OPINION, CONCEDES. 

WHAT, THEN, IS THE COMPELLING STATE INTEREST WHICH IMPELS THE
COMMONWEALTH OF PENNSYLVANIA TO IMPEDE APPELLANTS' FREEDOM OF WORSHIP? 
WHAT OVERBALANCING NEED IS SO WEIGHTY IN THE CONSTITUTIONAL SCALE THAT
IT JUSTIFIES THIS SUBSTANTIAL, THOUGH INDIRECT, LIMITATION OF
APPELLANTS' FREEDOM?  IT IS NOT THE DESIRE TO STAMP OUT A PRACTICE
DEEPLY ABHORRED BY SOCIETY, SUCH AS POLYGAMY, AS IN REYNOLDS, FOR THE
CUSTOM OF RESTING ONE DAY A WEEK IS UNIVERSALLY HONORED, AS THE COURT
HAS AMPLY SHOWN.  NOR IS IT THE STATE'S TRADITIONAL PROTECTION OF
CHILDREN, AS IN PRINCE V. MASSACHUSETTS, 321 U.S. 158 (1944), FOR
APPELLANTS ARE REASONING AND FULLY AUTONOMOUS ADULTS.  IT IS NOT EVEN
THE INTEREST IN SEEING THAT EVERYONE RESTS ONE DAY A WEEK, FOR
APPELLANTS' RELIGION REQUIRES THAT THEY TAKE SUCH A REST.  IT IS THE
MERE CONVENIENCE OF HAVING EVERYONE REST ON THE SAME DAY.  IT IS TO
DEFEND THIS INTEREST THAT THE COURT HOLDS THAT A STATE NEED NOT FOLLOW
THE ALTERNATIVE ROUTE OF GRANTING AN EXEMPTION FOR THOSE WHO IN GOOD
FAITH OBSERVE A DAY OF REST OTHER THAN SUNDAY.    IT IS TRUE, I
SUPPOSE, THAT THE GRANTING OF SUCH AN EXEMPTION WOULD MAKE SUNDAYS A
LITTLE NOISIER, AND THE TASK OF POLICE AND PROSECUTOR A LITTLE MORE
DIFFICULT.  IT IS ALSO TURE THAT A MAJORITY - 21 - OF THE 34 STATES
WHICH HAVE GENERAL SUNDAY REGULATIONS HAVE EXEMPTIONS OF THIS KIND. 
(FN1)  WE ARE NOT TOLD THAT THOSE STATES ARE SIGNIFICANTLY NOISIER, OR
THAT THEIR POLICE ARE SIGNIFICANTLY MORE BURDENED, THAN PENNSYLVANIA'S.
EVEN ENGLAND, NOT UNDER THE COMPULSION OF A WRITTEN CONSTITUTION, BUT
SIMPLY INFLUENCED BY CONSIDERATIONS OF FAIRNESS, HAS SUCH AN EXEMPTION
FOR SOME ACTIVITIES.  (FN2)  THE COURT CONJURES UP SEVERAL DIFFICULTIES
WITH SUCH A SYSTEM WHICH SEEM TO ME MORE FANCIFUL THAN REAL.  NON
SUNDAY OBSERVERS MIGHT GET AN UNFAIR ADVANTAGE, IT IS SAID.  A SIMILAR
CONTENTION AGAINST THE DRAFT EXEMPTION FOR CONSCIENTIOUS OBJECTORS
(ANOTHER EXAMPLE OF THE EXEMPTION TECHNIQUE) WAS REJECTED WITH THE
OBSERVATION THAT "ITS UNSOUNDNESS IS TOO APPARENT TO REQUIRE"
DISCUSSION.  SELECTIVE DRAFT LAW CASES, 245 U.S. 366, 390 (1918). 
HOWEVER WIDESPREAD THE COMPLAINT, IT IS LEGALLY BASELESS, AND THE
STATE'S RELIANCE UPON IT CANNOT WITHSTAND A FIRST AMENDMENT CLAIM.  WE
ARE TOLD THAT AN OFFICIAL INQUIRY INTO THE GOOD FAITH WITH WHICH
RELIGIOUS BELIEFS ARE HELD MIGHT BE ITSELF UNCONSTITUTIONAL.  BUT THIS
COURT INDICATED OTHERWISE IN UNITED STATES V. BALLARD, 322 U.S. 78
(1944).  SUCH AN INQUIRY IS NO MORE AN INFRINGEMENT OF RELIGIOUS
FREEDOM THAN THE REQUIREMENT IMPOSED BY THE COURT ITSELF IN MCGOWAN V.
MARYLAND, ANTE, P. 420, DECIDED THIS DAY, THAT PLAINTIFF SHOW THAT HIS
GOOD-FAITH RELIGIOUS BELIEFS ARE HAMPERED BEFORE HE ACQUIRES STANDING
TO ATTACK A STATUTE UNDER THE FREE-EXERCISE CLAUSE OF THE FIRST
AMENDMENT.  FINALLY, I FIND THE COURT'S MENTION OF A PROBLEM UNDER
STATE ANTIDISCRIMINATION STATUTES ALMOST CHIMERICAL.  MOST SUCH
STATUTES PROVIDE THAT HIRING MAY BE MADE ON A RELIGIOUS BASIS IF
RELIGION IS A BONA FIDE OCCUPATIONAL QUALIFICATION.  (FN3)  IT HAPPENS,
MOREOVER, THAT PENNSYLVANIA'S STATUTE HAS SUCH A PROVISION.  (FN4) 

IN FINE, THE COURT, IN MY VIEW, HAS EXALTED ADMINISTRATIVE
CONVENIENCE TO A CONSTITUTIONAL LEVEL HIGH ENOUGH TO JUSTIFY MAKING ONE
RELIGION ECONOMICALLY DISADVANTAGEOUS.  THE COURT WOULD JUSTIFY THIS
RESULT ON THE GROUND THAT THE EFFECT ON RELIGION, THOUGH SUBSTANTIAL,
IS INDIRECT.  THE COURT FORGETS, I THINK, A WARNING UTTERED DURING THE
CONGRESSIONAL DISCUSSION OF THE FIRST AMENDMENT ITSELF:  "  ...  THE
RIGHTS OF CONSCIENCE ARE, IN THEIR NATURE, OF PECULIAR DELICACY, AND
WILL LITTLE BEAR THE GENTLEST TOUCH OF GOVERNMENTAL HAND  ...  ." 
(FN5) 

I WOULD REVERSE THIS JUDGMENT AND REMAND FOR A TRIAL OF APPELLANTS'
ALLEGATIONS, LIMITED TO THE FREE-EXERCISE-OF-RELIGION ISSUE. 

FN1  CONN. GEN. STAT., 1958 REV., SEC. 53-303; FLA. LAWS 1959, C. 59
1650, SEC. 2; ILL.  REV. STAT., 1959, C. 38, SEC. 549; BURNS' IND. ANN.
STAT., 1956 REPL., SEC. 10-430; KAN.  GEN. STAT. ANN., 1949, SEC. 21
953; KY. REV. STAT., 1959, SEC. 436.160(2); ME. REV. STAT., 1954, C.
134, SEC. 44; MASS. GEN. LAWS ANN., 1958, C. 136, SEC. 6; MICH. STAT.
ANN., 1957 REV., SECS. 18.855, 18.122, 9.2702; MO. REV. STAT., 1959,
SEC. 563.700; NEB. REV. STAT., 1943, SEC. 28-940; N.J. STAT. ANN.,
1953, SEC. 2A:171-4; MCKINNEY'S N.Y. LAWS, PENAL LAW SEC. 2144; N.D.
REV. CODE, 1943, SEC. 12-2117; PAGE'S OHIO REV. CODE ANN., 1954, SEC.
3773.24; OKLA. STAT. ANN., 1958, TIT. 21, SEC. 909; R.I. GEN. LAWS,
1956, SEC. 11-40-4; S.D.  CODE, 1939, SEC. 13.1710; TEX. PEN.  CODE
ART. 284; VA. CODE, 1950, SEC. 18.1-359; WASH.  REV. CODE, 1951, SEC.
9.76.020; W.VA. CODE ANN., 1955, C.61, ART. 8, SEC. 6073.  CF.  WIS.
STAT. ANN., 1958, SEC. 301.33. 

FN2  E.G., SHOPS ACT, 1950, 14 GEO. VI, C. 28, SEC. 53. 

FN3  E.G., MASS. GEN. LAWS ANN., 1958, C. 151B, SEC. 4, PAR. 1. 

FN4 43 PURDON'S PA. STAT. ANN. (1960 CUM. SUPP.) SEC. 955. 

FN5  I ANNALS OF CONG. 730 (REMARKS OF REPRESENTATIVE DANIEL CARROLL
OF MARYLAND, AUGUST 15, 1789). 

MR. JUSTICE STEWART, DISSENTING. 

I AGREE WITH SUBSTANTIALLY ALL THAT MR. JUSTICE BRENNAN HAS WRITTEN. 
PENNSYLVANIA HAS PASSED A LAW WHICH COMPELS AN ORTHODOX JEW TO CHOOSE
BETWEEN HIS RELIGIOUS FAITH AND HIS ECONOMIC SURVIVAL.  THAT IS A CRUEL
CHOICE.  IT IS A CHOICE WHICH I THINK NO STATE CAN CONSTITUTIONALLY
DEMAND.  FOR ME THIS IS NOT SOMETHING THAT CAN BE SWEPT UNDER THE RUG
AND FORGOTTEN IN THE INTEREST OF ENFORCED SUNDAY TOGETHERNESS.  I THINK
THE IMPACT OF THIS LAW UPON THESE APPELLANTS GROSSLY VIOLATES THEIR
CONSTITUTIONAL RIGHT TO THE FREE EXERCISE OF THEIR RELIGION. 
..END :



















GALLAGHER V. CROWN KOSHER MARKET OF MASSACHUSETTS, INC. 366 U.S. 617 


NO. 11.  ARGUED DECEMBER 7-8, 1960 - DECIDED MAY 29, 1961 - 176 F. SUPP.
466, REVERSED. 


APPELLEES ARE MEMBERS OF THE ORTHODOX JEWISH FAITH, WHOSE RELIGION
FORBIDS THEM TO SHOP ON THEIR SABBATH (FROM SUNDOWN ON FRIDAY UNTIL
SUNDOWN ON SATURDAY) AND REQUIRES THEM TO EAT KOSHER FOOD; A GROUP OF
ORTHODOX RABBIS AND A CORPORATION SELLING KOSHER FOOD MAINLY TO SUCH
CUSTOMERS.  THEY SUED IN A FEDERAL DISTRICT COURT TO ENJOIN AS
UNCONSTITUTIONAL ENFORCEMENT OF CERTAIN SECTIONS OF THE MASSACHUSETTS
SUNDAY CLOSING LAWS WHICH HAD BEEN CONSTRUED AS FORBIDDING THE
CORPORATION TO KEEP ITS STORE OPEN ON SUNDAYS (EXCEPT FOR THE SALE OF
KOSHER MEAT UNTIL 10 A.M.), THOUGH IT HAD FORMERLY BEEN OPEN FOR
BUSINESS ALL DAY ON SUNDAYS AND HAD DONE ABOUT A THIRD OF ITS WEEKLY
BUSINESS THEN.  IT HAD BEEN CLOSED FROM SUNDOWN ON FRIDAYS UNTIL
SUNDOWN ON SATURDAYS, AND IT CLAIMED THAT IT WAS ECONOMICALLY
IMPRACTICAL FOR IT TO KEEP OPEN ON SATURDAY NIGHTS AND UNTIL 10 A.M. ON
SUNDAYS.  THE LAWS IN QUESTION GENERALLY FORBID THE KEEPING OPEN OF
SHOPS AND THE DOING OF ANY LABOR, BUSINESS OR WORK ON SUNDAYS; BUT THEY
ARE SUBJECT TO A GREAT MANY DETAILED EXCEPTIONS OF MANY DIFFERENT
KINDS, WHICH ARE SUMMARIZED IN THE OPINION.  HELD:  THE STATUTES HERE
INVOLVED DO NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, AND THEY ARE NOT LAWS RESPECTING AN ESTABLISHMENT OF
RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF, WITHIN THE MEANING
OF THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT.  PP. 618-631. 

GALLAGHER, CHIEF OF POLICE OF SPRINGFIELD, MASSACHUSETTS, ET AL. V.
CROWN KOSHER SUPER MARKET OF MASSACHUSETTS, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

MR. CHIEF JUSTICE WARREN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE BLACK, MR. JUSTICE CLARK, AND MR. JUSTICE
WHITTAKER CONCUR. 

THE PRINCIPAL ISSUES PRESENTED IN THIS CASE ARE WHETHER THE
MASSACHUSETTS SUNDAY CLOSING LAWS (FN1) VIOLATE EQUAL PROTECTION, ARE
STATUTES RESPECTING THE ESTABLISHMENT OF RELIGION OR PROHIBIT THE FREE
EXERCISE THEREOF. 

APPELLEES ARE CROWN KOSHER SUPER MARKET, A CORPORATION WHOSE FOUR
STOCKHOLDERS, OFFICERS AND DIRECTORS ARE MEMBERS OF THE ORTHODOX JEWISH
FAITH, WHICH OPERATES IN SPRINGFIELD, MASSACHUSETTS, AND SELLS KOSHER
MEAT AND OTHER FOOD PRODUCTS THAT ARE ALMOST EXCLUSIVELY KOSHER AND
WHICH HAS MANY ORTHODOX JEWISH CUSTOMERS; THREE OF CROWN'S CUSTOMERS OF
THE ORTHODOX JEWISH FAITH, WHOSE RELIGION FORBIDS THEM TO SHOP ON THE
SABBATH AND REQUIRES THEM TO EAT KOSHER FOOD, AS REPRESENTATIVES OF
THAT CLASS OF PATRONS; AND THE CHIEF ORTHODOX RABBI OF SPRINGFIELD, AS
REPRESENTATIVE OF A CLASS OF ORTHODOX RABBIS WHOSE DUTIES INCLUDE THE
INSPECTING OF KOSHER FOOD MARKETS TO INSURE COMPLIANCE WITH ORTHODOX
JEWISH DIETARY LAWS. 

CROWN HAD PREVIOUSLY BEEN OPEN FOR BUSINESS ON SUNDAY, ON WHICH DAY
IT HAD CONDUCTED ABOUT ONE-THIRD OF ITS WEEKLY BUSINESS.  NO OTHER
SUPERMARKET IN THE SPRINGFIELD AREA HAD KEPT OPEN ON SUNDAY.  SINCE THE
ORTHODOX JEWISH RELIGION REQUIRES ITS MEMBERS TO REFRAIN FROM ANY
COMMERCIAL ACTIVITY ON THE SABBATH - FROM SUNDOWN ON FRIDAY UNTIL
SUNDOWN ON SATURDAY - CROWN WAS NOT OPEN DURING THOSE HOURS.  ALTHOUGH
THERE IS A STATUTORY PROVISION WHICH PERMITS SABBATARIANS TO KEEP THEIR
SHOPS OPEN UNTIL 10 A.M. ON SUNDAY FOR THE SALE OF KOSHER MEAT, CROWN
DID NOT DO SO BECAUSE IT WAS ECONOMICALLY IMPRACTICAL; FOR THE SAME
REASON, CROWN DID NOT OPEN AFTER SUNDOWN ON SATURDAY. 

THOSE PROVISIONS OF THE LAW IMMEDIATELY UNDER ATTACK ARE IN A CHAPTER
ENTITLED "OBSERVANCE OF THE LORD'S DAY."  THEY FORBID, UNDER PENALTY OF
A FINE OF UP TO FIFTY DOLLARS, THE KEEPING OPEN OF SHOPS AND THE DOING
OF ANY LABOR, BUSINESS OR WORK ON SUNDAY.  WORKS OF NECESSITY AND
CHARITY ARE EXCEPTED AS IS THE OPERATION OF CERTAIN PUBLIC UTILITIES. 
THERE ARE ALSO EXEMPTIONS FOR THE RETAIL SALE OF DRUGS, THE RETAIL SALE
OF TOBACCO BY CERTAIN VENDORS, THE RETAIL SALE AND MAKING OF BREAD AT
GIVEN HOURS BY CERTAIN DEALERS, AND THE RETAIL SALE OF FROZEN DESSERTS,
CONFECTIONERIES AND FRUITS BY VARIOUS LISTED SELLERS.  THE STATUTES
UNDER ATTACK FURTHER PERMIT THE SUNDAY SALE OF LIVE BAIT FOR
NONCOMMERCIAL FISHING; THE SALE OF MEALS TO BE CONSUMED OFF THE
PREMISES; THE OPERATION AND LETTING OF MOTOR VEHICLES AND THE SALE OF
ITEMS AND EMERGENCY SERVICES NECESSARY THERETO; THE LETTING OF HORSES,
CARRIAGES, BOATS AND BICYCLES; UNPAID WORK ON PLEASURE BOATS AND ABOUT
PRIVATE GARDENS AND GROUNDS IF IT DOES NOT CAUSE UNREASONABLE NOISE;
THE RUNNING OF TRAINS AND BOATS; THE PRINTING, SALE AND DELIVERY OF
NEWSPAPERS; THE OPERATION OF BOOTBLACKS BEFORE 11 A.M., UNLESS LOCALLY
PROHIBITED; THE WHOLESALE AND RETAIL SALE OF MILK, ICE AND FUEL; THE
WHOLESALE HANDLING AND DELIVERY OF FISH AND PERISHABLE FOODSTUFFS; THE
SALE AT WHOLESALE OF DRESSED POULTRY; THE MAKING OF BUTTER AND CHEESE;
GENERAL INTERSTATE TRUCK TRANSPORTATION BEFORE 8 A.M. AND AFTER 8 P.M.
AND AT ALL TIMES IN CASES OF EMERGENCY; INTRASTATE TRUCK TRANSPORTATION
OF PETROLEUM PRODUCTS BEFORE 6 A.M. AND AFTER 10 P.M.; THE
TRANSPORTATION OF LIVESTOCK AND FARM ITEMS FOR PARTICIPATION IN FAIRS
AND SPORTING EVENTS; THE SALE OF FRUITS AND VEGETABLES ON THE GROWER'S
PREMISES; THE KEEPING OPEN OF PUBLIC BATHHOUSES; THE DIGGING OF CLAMS;
THE ICING AND DRESSING OF FISH; THE SALE OF WORKS OF ART AT
EXHIBITIONS; THE CONDUCTING OF PRIVATE TRADE EXPOSITIONS BETWEEN 1 P.M.
AND 10 P.M. 

THESE STATUTES DO NOT PROHIBIT SUNDAY BUSINESS AND LABOR BY
SABBATARIAN OBSERVERS SO LONG AS IT DISTURBS NO OTHER PERSON.  HOWEVER,
THIS HAS BEEN CONSTRUED TO FORBID THE KEEPING OPEN OF SHOPS FOR THE
SALE OF MERCHANDISE.  COMMONWEALTH V. HAS, 122 MASS. 40.  PERMISSION IS
GRANTED BY LOCAL OPTION FOR THE SUNDAY OPERATION AFTER 1 P.M. OF
AMUSEMENT PARKS AND BEACH RESORTS, INCLUDING PARTICIPATION IN BOWLING
AND GAMES OF AMUSEMENT FOR WHICH PRIZES ARE AWARDED.  SPECIAL LICENSES
FOR EMERGENCY SUNDAY WORK MAY BE OBTAINED FROM LOCAL OFFICIALS. 

OTHER PROVISIONS OF THE MASSACHUSETTS SUNDAY LEGISLATION MAKE
GENERALLY UNLAWFUL SUNDAY ATTENDANCE OR PARTICIPATION IN ANY PUBLIC
ENTERTAINMENTS EXCEPT FOR THOSE WHICH ARE DULY LICENSED LOCALLY,
CONDUCTED AFTER 1 P.M., AND ARE IN KEEPING WITH THE CHARACTER OF THE
DAY AND NOT INCONSISTENT WITH ITS DUE OBSERVANCE. 

ALTHOUGH THERE IS A GENERAL BAR OF GAMES AND SPORTS ON SUNDAY,
PROFESSIONAL SPORTS MAY BE PLAYED BETWEEN 1:30 P.M. AND 6:30 P.M., AND
INDOOR HOCKEY AND BASKETBALL ANY TIME AFTER 1:30 P.M.; AMATEUR SPORTS
MAY BE PLAYED BETWEEN 2 P.M. AND 6 P.M.; THIS IS ALL SUBJECT TO LOCAL
OPTION AND NO GAME MAY BE CONDUCTED WITHIN ONE THOUSAND FEET OF ANY
REGULAR PLACE OF WORSHIP EXCEPT IN A PUBLIC PLAYGROUND OR PARK.  THERE
ARE SPECIFIC BANS ON AUTO RACING, HORSE RACING, BOXING AND HUNTING WITH
FIREARMS.  AND THERE ARE A NUMBER OF ADDITIONAL EXEMPTIONS FROM THE
GENERAL PROSCRIPTION.  GOLF, TENNIS, DANCING AT WEDDINGS, CONCERTS OF
SACRED MUSIC AND THE CELEBRATION OF RELIGIOUS CUSTOMS OR RITUALS ARE
ALL ALLOWED ON SUNDEY AS ARE THE OPERATION OF MINIATURE GOLF COURSES
AND GOLF DRIVING RANGES AFTER 1 P.M.  MOTION PICTURES MAY BE EXHIBITED
AFTER THIS HOUR IF A LOCAL LICENSE IS OBTAINED.  PARADES WITH MUSIC FOR
CERTAIN COMMEMORATIVE PURPOSES MAY BE HELD ON SUNDAY BY VETERANS',
CIVIC, FRATERNAL, POLICEMEN'S AND FIREMEN'S ORGANIZATIONS PROVIDING
THAT THEY ARE SUSPENDED WHILE PASSING WITHIN TWO HUNDRED FEET OF PUBLIC
WORSHIP SERVICES. 

PERSONS WHO KEEP PLACES OF PUBLIC ENTERTAINMENT OR REFRESHMENT LOSE
THEIR LICENSES IF THEY ENTERTAIN, ON SUNDAY, PEOPLE OTHER THAN
TRAVELERS, STRANGERS OR LODGERS.  WITH LIMITED EXCEPTIONS, DISCHARGING
FIREARMS FOR SPORT EXCEPT ON ONE'S OWN LAND, FISHING FOR COMMERCIAL
PURPOSES, AND FISHING WITH NETS OR SPEARS ARE PROHIBITED ON SUNDAY. 
THE USE OF GAMING DEVICES IS NOT ALLOWED.  OUTDOOR EXERCISE WITHOUT THE
ELEMENT OF CONTEST IS GENERALLY PERMITTED AS IS THE TAKING OF MAMMALS
BY MEANS OF TRAPS.  HEAVIER PENALTIES ARE IMPOSED FOR THE WILLFUL
CUTTING AND DESTRUCTION OF TIMBER, SHRUBS, FRUITS OR VEGETABLES ON
SUNDAY THAN ON OTHER DAYS OF THE WEEK. 

STILL OTHER STATUTORY SECTIONS MAKE IT A CRIME FOR MOST EMPLOYERS TO
REQUIRE THEIR EMPLOYEES TO ENGAGE IN ORDINARY OCCUPATION ON SUNDAY
UNLESS THE EMPLOYEE IS ALLOWED TWENTY-FOUR CONSECUTIVE HOURS OFF DURING
THE FOLLOWING SIX DAYS.  THE SALE OF ALCOHOLIC BEVERAGES BY CERTAIN
LICENSES IS PERMITTED ON SUNDAY AFTER 1 P.M., BY LOCAL OPTION. 
HOWEVER, PATRONS CONSUMING THE BEVERAGES ON THE PREMISES MUST BE SEATED
AT TABLES. 

APPELLEES SOUGHT PERMANENTLY TO ENJOIN THE ENFORCEMENT OF THE STATUTE
AGAINST THEM, ALLEGING THAT APPELLANT, SPRINGFIELD'S CHIEF OF POLICE,
HAD PREVIOUSLY ARRESTED AND PROSECUTED CROWN'S MANAGER FOR KEEPING OPEN
ON SUNDAY; THAT, UNLESS RESTRAINED, APPELLANT WOULD CONTINUE TO ENFORCE
THE STATUTE AGAINST CROWN; THAT THE STATUTE WAS UNCONSTITUTIONAL FOR
THE REASONS STATED ABOVE.  THE THREE-JUDGE FEDERAL DISTRICT COURT, ONE
JUDGE DISSENTING, AGREED WITH APPELLEES, 176 F. SUPP. 466.  ON APPEAL
BROUGHT UNDER 28 U.S.C. SEC. 1253, WE NOTED PROBABLE JURISDICTION, 362
U.S. 960. 

                      I. 

THE EQUAL PROTECTION ARGUMENTS ADVANCED BY APPELLEES ARE MUCH THE
SAME AS THOSE MADE BY APPELLANTS IN MCGOWAN V. MARYLAND, ANTE, P. 420. 
THEY CONTEND THAT THE EXCEPTIONS TO THE STATUTE ARE SO NUMEROUS AND
ARBITRARY AS TO BE FOUND TO HAVE NO RATIONAL BASIS; (FN2) THAT THE LAW
PERMITS THE SALE OF CERTAIN FOOD ITEMS SOLD BY CROWN BUT LIMITS THIS
PERMISSION TO SELECTED TYPES OF STORES; THAT THE EMPLOYEES IN THE
EXEMPTED ACTIVITIES ARE JUST AS MUCH IN NEED OF A DAY OF REST AS ARE
CROWN'S EMPLOYEES.  THE THREE-JUDGE DISTRICT COURT DESCRIBED THE
PRESENT STATUTORY SYSTEM AS AN "UNBELIEVABLE HODGEPODGE" AND SUSTAINED
APPELLEES' ALLEGATIONS. 

THE ANSWERS TO THESE ARGUMENTS ARE LIKEWISE SIMILAR TO THOSE GIVEN IN
MCGOWAN WHEN THE CONTENTIONS ARE EXAMINED UNDER THE STANDARDS SET FORTH
IN THAT OPINION.  MANY OF THE EXCEPTIONS IN THE MASSACHUSETTS SUNDAY
LAWS ARE REASONABLY EXPLAINABLE ON THEIR FACE.  SUCH ITEMS AS TOBACCOS,
CONFECTIONERIES, FRUITS AND FROZEN DESSERTS COULD HAVE BEEN FOUND BY
THE LEGISLATURE TO BE USEFUL IN ADDING TO SUNDAY'S ENJOYMENT; SUCH
ITEMS AS NEWSPAPERS, MILK AND BREAD COULD HAVE BEEN FOUND TO BE
REQUIRED TO BE SOLD FRESH DAILY.  (FN3)  IT IS CONCEIVABLE THAT THE
LEGISLATURE BELIEVED THAT THE SALE OF FISH AND PERISHABLE FOODSTUFFS AT
WHOLESALE WOULD NOT DETRACT FROM THE ATMOSPHERE OF THE DAY, WHILE THE
RETAIL SALE OF THESE ITEMS WOULD INJECT THE DISTINCTLY COMMERCIAL
ELEMENT THAT EXISTS DURING THE OTHER SIX DAYS OF THE WEEK.  IT IS FAIR
TO BELIEVE THAT THE ALLOWANCE OF PROFESSIONAL AND AMATEUR SPORTS ON
SUNDAY WOULD ADD TO THE DAY'S SPECIAL CHARACTER RATHER THAN DETRACT
FROM IT.  AND THE LEGISLATURE COULD FIND THAT THE CIRCUMSTANCES
ATTENDANT TO THE CONDUCT OF PROFESSIONAL SPORTS ARE SUFFICIENTLY
DIFFERENT FROM THOSE OF AMATEUR SPORTS TO JUSTIFY DIFFERENT TREATMENT
AS TO THE HOURS DURING WHICH THEY MAY BE PLAYED.  FURTHERMORE, THE
LEGISLATURE COULD DETERMINE THAT, ALTHOUGH MANY RETAILERS, INCLUDING
CROWN, SELL FROZEN DESSERTS, TO PERMIT ONLY A LIMITED NUMBER OF
INNHOLDERS, DRUGGISTS AND COMMON VICTUALLERS TO SELL THEM ON SUNDAY
WOULD SERVE THE PUBLIC PURPOSE OF PROVIDING THESE ITEMS ON SUNDAY AND,
AT THE SAME TIME, LIMIT THE COMMERCIAL ACTIVITIES ORDINARILY ATTENDANT
TO THEIR SALE.  AND, IF SUCH DETERMINATION REQUIRES THIS LIMITED NUMBER
OF STORES TO BE OPEN TO SERVE THE PUBLIC INTEREST, THE EMPLOYEES OF
MOST OF THE STORES ARE STILL PROTECTED BY THE STATUTORY PROVISION
GIVING THE EMPLOYEES ANOTHER DAY OF REST.  TO PERMIT ALL STORES WHICH
SELL THE EXEMPTED PRODUCTS TO REMAIN OPEN ON SUNDAY BUT TO LIMIT THEM
TO THE SALE OF THE EXEMPTED ITEMS MIGHT WELL BE BELIEVED TO IMPOSE NEAR
INSUPERABLE ENFORCEMENT PROBLEMS. 

THE FACT IS THAT THE IRRATIONALITY OF THESE AND THE MANY OTHER
APPARENTLY REASONABLE DISTINCTIONS HAS NOT BEEN SHOWN.  THE PRESUMPTION
OF VALIDITY UPON WHICH THE OTHER CLASSIFICATIONS STAND HAS NOT BEEN
DISPELLED.  "A CLASSIFICATION HAVING SOME REASONABLE BASIS DOES NOT
OFFEND AGAINST (THE EQUAL PROTECTION) CLAUSE MERELY BECAUSE IT IS NOT
MADE WITH MATHEMATICAL NICETY OR BECAUSE IN PRACTICE IT RESULTS IN SOME
INEQUALITY."  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78. 
THUS, WE HOLD THAT THE MASSACHUSETTS SUNDAY LAWS DO NOT VIOLATE EQUAL
PROTECTION OF THE LAWS. 

                                       II. 

APPELLEES MAKE SEVERAL CONTENTIONS THAT THE STATUTES VIOLATE THE
CONSTITUTIONAL GUARANTEES OF RELIGIOUS FREEDOM.  FIRST, THEY ALLEGE
THAT THE STATUTES ARE LAWS RESPECTING AN ESTABLISHMENT OF RELIGION IN
THAT BOTH THEIR ORIGINAL AND CURRENT PURPOSES ARE TO ENFORCE THE
OBSERVANCE OF SUNDAY AS THE SABBATH. 

WE AGREE WITH THE COURT BELOW THAT, LIKE THE SUNDAY LAWS OF OTHER
STATES, THE MASSACHUSETTS STATUTES HAVE AN UNMISTAKABLY RELIGIOUS
ORIGIN.  THE FIRST ENACTMENT OF THE PLYMOUTH COLONY IN 1650 STATED
SIMPLY THAT "WHOSOEVER SHALL PROPHANE THE LORDS DAY BE DOEING ANY
SERVILL WORKE OR ANY SUCH LIKE ABUSSES" SHALL EITHER BE FINED OR
SHIPPED.  THE COMPACT, CHARTER AND LAWS OF THE COLONY OF NEW PLYMOUTH,
92.  EIGHT YEARS LATER, A BAN ON SUNDAY TRAVELING WAS ENACTED WITH THE
FOLLOWING PREAMBLE:

"WHERAS COMPLAINT IS MADE OF GREAT ABUSES IN SUNDRY PLACES OF THIS
GOVRMENT OF PROPHANING THE LORDS DAY BY TRAVELLERS BOTH HORSE AND FOOT
BY BEARING OF BURDENS CARRYING OF PACKES &C.  UPON THE LORDS DAY TO THE
GREAT OFFENCE OF THE GODLY WELAFECTED AMONG US."  ID., AT 113. 

AND, IN 1671, THE RELIGIOUS PURPOSE WAS MADE CLEAR BEYOND DOUBT: 

"9.  THIS COURT TAKING NOTICE OF GREAT ABUSE, AND MANY MISDEMEANOURS,
COMMITTED BY DIVERS PERSONS IN THESE MANY WAYES, PROFANEING THE SABBATH
OR LORD'S-DAY, TO THE GREAT DISHONOUR OF GOD, REPROACH OF RELIGION, AND
GRIEF OF THE SPIRITS OF GOD'S PEOPLE: 

"DO THEREFORE ORDER, THAT WHOSOEVER SHALL PROPHANE THE LORD'S-DAY, BY
DOING UNNECESSARY SERVILE WORK, BY UNNECESSARY TRAVAILING, OR BY SPORTS
AND RECREATIONS, HE OR THEY THAT SO TRANSGRESS, SHALL FORFEIT FOR EVERY
SUCH DEFAULT FORTY SHILLINGS, OR BE PUBLICKLY WHIPT: BUT IF IT CLEARLY
APPEAR THAT THE SIN WAS PROUDLY, PRESUMPTUOUSLY AND WITH A HIGH HAND
COMMITTED, AGAINST THE KNOWN COMMAND AND AUTHORITY OF THE BLESSED GOD,
SUCH A PERSON THEREIN DESPISING AND REPROACHING THE LORD, SHALL BE PUT
TO DEATH OR GRIEVOUSLY PUNISHED AT THE JUDGEMENT OF THE COURT. 

"10.  AND WHOSOEVER SHALL FREQUENTLY NEGLECT THE PUBLIC WORSHIP OF
GOD ON THE LORDS DAY, THAT IS APPROVED BY THIS GOVERNMENT, SHALL
FORFEIT FOR EVERY SUCH DEFAULT CONVICTED OF, TEN SHILLINGS, ESPECIALLY
WHERE IT APPEARS TO ARISE FROM NEGLIGENCE, IDLENESS OR PROPHANESS OF
SPIRIT."  ID., AT 247.    THE SUNDAY REGULATIONS OF THE MASSACHUSETTS
COLONY WERE NO DIFFERENT.  THE 1653 VERSION SPOKE OF THE ABUSES OF THE
DISHONOR OF GOD AND THE REPROACH OF RELIGION WHICH WERE GRIEVING THE
SOULS OF GOD'S SERVANTS.  AMONG OTHER THINGS, THE STATUTE FORBADE
DRINKING AND SPORTING ON SUNDAY.  THE COLONIAL LAWS OF MASSACHUSETTS
132-133.  IN 1665, NEGLECT OF GOD'S PUBLIC WORSHIP WAS MADE A CRIME. 
ID., AT 133.  EVERY PERSON WAS REQUIRED TO APPLY HIMSELF TO DUTIES OF
RELIGION AND PIETY ON SUNDAY ACCORDING TO THE 1692 STATUTE WHICH
CONTINUED THE BAN ON SUNDAY SPORTS.  CHARTER OF THE PROVINCE OF THE
MASSACHUSETTS-BAY IN NEW-ENGLAND 13-14.  THE PREAMBLE TO THE NEW
STATUTE IN 1761 RETAINED THE RELIGION AND PIETY LANGUAGE AND ADDED THAT
PROFANATION OF THE LORD'S DAY IS HIGHLY OFFENSIVE TO ALMIGHTY GOD. 
THIS STATUTE RETAINED AND STRENGTHENED THE FORMER PROHIBITIONS.  ID.,
AT 392-394. 

A CHANGE CAME ABOUT IN 1782.  THE PREAMBLE ADDED THE FOLLOWING: 

"WHEREAS THE OBSERVANCE OF THE LORD'S DAY IS HIGHLY PROMOTIVE OF THE
WELFARE OF A COMMUNITY, BY AFFORDING NECESSARY SEASONS FOR RELAXATION
FROM LABOR AND THE CARES OF BUSINESS; FOR MORAL REFLECTIONS AND
CONVERSATION ON THE DUTIES OF LIFE, AND THE FREQUENT ERRORS OF HUMAN
CONDUCT; ... "  ACTS AND LAWS OF THE COMMONWEALTH OF MASSACHUSETTS 63. 

THUS, THE STATUTE'S ANNOUNCED PURPOSE WAS NO LONGER SOLELY
RELIGIOUS.  BUT THIS STATUTE PROSCRIBED THE SUNDAY ATTENDANCE AT ANY
CONCERT OF MUSIC AND DANCING IN ADDITION TO THE PREVIOUSLY MENTIONED
ACTIVITIES.  IBID.  THIS LAW WAS RE-ENACTED IN 1792.  2 LAWS OF
MASSACHUSETTS 536 ET SEQ. 

HOWEVER, WHEN WE EXAMINE THE STATUTES NOW BEFORE THE COURT, WE FIND
THAT, FOR THE MOST PART, THEY HAVE BEEN DIVORCED FROM THE RELIGIOUS
ORIENTATION OF THEIR PREDECESSORS.  THE PREAMBLES' STATEMENTS, IN
CERTAIN TERMS, OF RELIGIOUS PRUPOSE EXIST NO LONGER.  SPORTS OF ALMOST
ALL KINDS ARE NOW GENERALLY ALLOWED ON SUNDAY.  THE ABSOLUTE
PROHIBITION AGAINST ALCOHOLIC BEVERAGES HAS DISAPPEARED.  CONCERTS AND
DANCING ARE PERMITTED.  CHURCH ATTENDANCE IS NO LONGER REQUIRED. 

ADMITTEDLY, THE STATUTES STILL CONTAIN REFERENCES TO THE LORD'S DAY
AND SOME PROVISIONS SPEAK OF WEEKDAYS AS BEING SECULAR DAYS.  ALTHOUGH
SEC. 2 OF C. 136 EXCEPTS CONCERTS OF SACRED MUSIC, THE NEXT CLAUSE OF
THE SECTION PERMITS FREE OPEN-AIR CONCERTS.  IT WOULD SEEM THAT THE
OBJECTIONABLE LANGUAGE IS MERELY A RELIC.  THE FACT THAT CERTAIN SUNDAY
ACTIVITIES ARE PERMITTED ONLY IF THEY ARE "IN KEEPING WITH THE
CHARACTER OF THE DAY AND NOT INCONSISTENT WITH ITS DUE OBSERVANCE,"
DOES NOT NECESSARILY MEAN THAT THE DAY IS INTENDED TO BE RELIGIOUS; THE
"CHARACTER" OF THE DAY WOULD APPEAR MORE LIKELY TO BE INTENDED TO BE
ONE OF REPOSE AND RECREATION.  WE ARE TOLD THAT THOSE PROVISIONS
FORBIDDING CERTAIN ACTIVITIES TO BE CONDUCTED WITHIN A SET DISTANCE
FROM A PLACE OF PUBLIC WORSHIP ARE ESPECIALLY DEVOTED TO MAINTAINING
SUNDAY AS THE SABBATH.  BUT BECAUSE THE STATE WISHES TO PROTECT THOSE
WHO DO WORSHIP ON SUNDAY DOES NOT MEAN THAT THE STATE MEANS TO IMPOSE
RELIGIOUS WORSHIP ON ALL.  SEE EVERSON V. BOARD OF EDUCATION, 330 U.S.
1, 16.  ALTHOUGH MANY OF THE MORE RECENTLY ALLOWED SUNDAY ACTIVITIES
MAY NOT COMMENCE PRIOR TO 1 P.M., OTHERS MAY BE UNDERTAKEN AT ANY TIME
DURING THE DAY.  AND THE CONTENTION THAT EVENING CHURCH SERVICES ARE
BEING PROTECTED CANNOT BE MAINTAINED SINCE MOST OF THOSE ACTIVITIES
THAT BEGIN AFTER 1 P.M. MAY CONTINUE THROUGHOUT THE DAY. 

FURTHERMORE, THE LONG LIST OF EXEMPTIONS THAT HAVE BEEN RECENTLY
GRANTED EVIDENCES THAT THE PRESENT SCHEME IS ONE TO PROVIDE AN
ATMOSPHERE OF RECREATION RATHER THAN RELIGION.  THE COURT BELOW POINTED
OUT THAT, SINCE 1858, THE STATUTES HAVE BEEN AMENDED MORE THAN SEVENTY
TIMES.  IT WOULD NOT SEEM THAT THE SUNDAY SALES OF TOBACCO, SODA WATER,
FRUIT, ET CETERA, ARE IN AID OF RELIGION.  IT WOULD SEEM THAT THE
OPERATION OF AMUSEMENT PARKS AND BEACH RESORTS IS IN AID OF
RECREATION. 

AN EXAMINATION OF RECENT MASSACHUSETTS LEGISLATIVE HISTORY BOLSTERS
THE STATE'S POSITION THAT THESE STATUTES ARE NOT RELIGIOUS.  IN 1960, A
REPORT OF THE LEGISLATIVE RESEARCH COUNCIL STATED: 

"IN GENERAL, SUNDAY LAWS PROTECT THE PUBLIC BY GUARANTEEING ONE DAY
IN SEVEN TO PROVIDE A PERIOD OF REST AND QUIET.  HEALTH, PEACE AND GOOD
ORDER OF SOCIETY ARE THEREBY PROMOTED.  SUCH PROVISION IS ESSENTIALLY
CIVIL IN CHARACTER AND THE STATUTES ARE NOT REGARDED AS RELIGIOUS
ORDINANCES."  REPORT OF THE LEGISLATIVE RESEARCH COUNCIL RELATIVE TO
LEGAL HOLIDAYS AND THEIR OBSERVANCE, MASS. LEG.  DOCS., SEN. DOC. NO.
525 (1960), 24.  (FN4) 

THE EARLIEST PRONOUNCEMENTS OF THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS ARE FURTHER INDICATION OF THE RELIGIOUS ORIGIN OF THE
SUNDAY LAWS.  IN PEARCE V. ATWOOD, 13 MASS. 324, 348 (1816), IT WAS
STATED THAT THE STATUTE'S SOLE OBJECT WAS "ENSURING REVERENCE AND
RESPECT FOR ONE DAY OF THE WEEK, IN ORDER THAT RELIGIOUS EXERCISES
SHOULD BE PERFORMED WITHOUT INTERRUPTION FROM COMMON AND SECULAR
EMPLOYMENTS."  IN BENNETT V. BROOKS, 91 MASS. 118, 119 (1864), THE DAY
WAS CHARACTERIZED AS ONE "SET APART FOR RELIGIOUS SERVICES AND
OBSERVANCES." 

IN 1877, A CASE AROSE IN WHICH A CHARGE OF VIOLATION OF RELIGIOUS
FREEDOM WAS MADE.  THE SUPREME JUDICIAL COURT RELIED ON THE
PENNSYLVANIA CASE OF SPECHT V. COMMONWEALTH, 8 PA. 312, AND STATED
CLEARLY: 

"IT IS ESSENTIALLY A CIVIL REGULATION, PROVIDING FOR A FIXED PERIOD
OF REST IN THE BUSINESS, THE ORDINARY AVOCATIONS AND THE AMUSEMENTS OF
THE COMMUNITY.  IF THERE IS TO BE SUCH A CESSATION FROM LABOR AND
AMUSEMENT, SOME ONE DAY MUST BE SELECTED FOR THE PURPOSE; AND EVEN IF
THE DAY THUS SELECTED IS CHOSEN BECAUSE A GREAT MAJORITY OF THE PEOPLE
CELEBRATE IT AS A DAY OF PECULIAR SANCTITY, THE LEGISLATIVE AUTHORITY
TO PROVIDE FOR ITS OBSERVANCE IS DERIVED FROM ITS GENERAL AUTHORITY TO
REGULATE THE BUSINESS OF THE COMMUNITY AND TO PROVIDE FOR ITS MORAL AND
PHYSICAL WELFARE.  THE ACT IMPOSES UPON NO ONE ANY RELIGIOUS CEREMONY
OR ATTENDANCE UPON ANY FORM OF WORSHIP, AND ANY ONE, WHO DEEMS ANOTHER
DAY MORE SUITABLE FOR REST OR WORSHIP, MAY DEVOTE THAT DAY TO THE
RELIGIOUS OBSERVANCE WHICH HE DEEMS APPROPRIATE.  THAT ONE WHO
CONSCIENTIOUSLY OBSERVES THE SEVENTH DAY OF THE WEEK MAY ALSO BE
COMPELLED TO ABSTAIN FROM BUSINESS OF THE KIND EXPRESSLY FORBIDDEN ON
THE FIRST DAY, IS NOT OCCASIONED BY ANY SUBORDINATION OF HIS RELIGION,
BUT BECAUSE AS A MEMBER OF THE COMMUNITY HE MUST SUBMIT TO THE RULES
WHICH ARE MADE BY LAWFUL AUTHORITY TO REGULATE AND GOVERN THE BUSINESS
OF THAT COMMUNITY."  COMMONWEALTH V. HAS, 122 MASS. 40, 42 (1877). 

THE COURT BELOW CHARACTERIZED THIS DECISION AS AN AD HOC
IMPROVISATION BY THE MASSACHUSETTS COURT.   OF COURSE, THE COURT BELOW
WAS CORRECT IN DECIDING THAT IT WAS NOT BOUND BY THE MASSACHUSETTS
CHARACTERIZATION OF THE STATUTES.  SEE SOCIETY FOR SAVINGS V. BOWERS,
349 U.S. 143, 151.  BUT TEN YEARS LATER, IN COMMONWEALTH V. STARR, 144
MASS. 359, 361, 11 N.E. 533, 534 (1887), ANOTHER RELIGIOUS CHARGE
AGAINST THE STATUTE WAS MADE; IT WAS REJECTED ON THE AUTHORITY OF HAS. 

AS THE COURT BELOW POINTED OUT, THERE HAVE BEEN SEVERAL CASES, (FN5)
BETWEEN 1877 AND 1923, WHICH GAVE A RELIGIOUS CHARACTERIZATION TO THE
STATUTE.  BUT IN NONE OF THESE CASES WAS THERE A CONTENTION REGARDING
RELIGIOUS FREEDOM, AND NONE OF THE CASES STATED THE STATUTE'S PURPOSE
TO BE EXCLUSIVELY RELIGIOUS.  (FN6)  FINALLY, IN THE ONLY RECENT CASE
PASSING ON THE MASSACHUSETTS SUNDAY CLOSING LAWS, COMMONWEALTH V.
CHERNOCK, 336 MASS.  384, 145 N.E.2D 920 (1957), THE COURT SUMMARILY
DISMISSED THE COMPLAINANT'S RELIGIOUS CONTENTION, RELYING ON HAS. 

THE RELEVANT FACTORS HAVING BEEN MOST CAREFULLY CONSIDERED, WE DO NOT
FIND THAT THE PRESENT STATUTES' PURPOSE OR EFFECT IS RELIGIOUS. 
ALTHOUGH THE THREE-JUDGE COURT FOUND THAT MASSACHUSETTS HAD NO
LEGITIMATE SECULAR INTEREST IN MAINTAINING SUNDAY CLOSING, WE HAVE HELD
DIFFERENTLY IN MCGOWAN V. MARYLAND, SUPRA.  AND, FOR THE REASONS STATED
IN THAT CASE, WE REJECT APPELLEES' REQUEST TO HOLD THESE STATUTES
INVALID ON THE GROUND THAT THE STATE MAY ACCOMPLISH ITS SECULAR PURPOSE
BY ALTERNATIVE MEANS THAT WOULD NOT EVEN REMOTELY OR INCIDENTALLY AID
RELIGION. 

SECONDLY, APPELLEES CONTEND THAT THE APPLICATION TO THEM OF THE
SUNDAY CLOSING LAWS PROHIBITS THE FREE EXERCISE OF THEIR RELIGION. 
CROWN ALLEGES THAT IF IT IS REQUIRED BY LAW TO ABSTAIN FROM BUSINESS ON
SUNDAY, THEN, BECAUSE ITS OWNERS' RELIGION DEMANDS CLOSING FROM SUNDOWN
FRIDAY TO SUNDOWN SATURDAY, CROWN WILL BE OPEN ONLY FOUR AND ONE-HALF
DAYS A WEEK, THEREBY SUFFERING EXTREME ECONOMIC DISADVANTAGE.  CROWN'S
ORTHODOX JEWISH CUSTOMERS ALLEGE THAT BECAUSE THEIR RELIGIOUS BELIEFS
FORBID THEIR SHOPPING ON THE JEWISH SABBATH, THE STATUTES' EFFECT IS TO
DEPRIVE THEM, FROM FRIDAY AFTERNOON UNTIL MONDAY OF EACH WEEK, OF THE
OPPORTUNITY TO PURCHASE THE KOSHER FOOD SANCTIONED BY THEIR FAITH.  THE
ORTHODOX RABBIS ALLEGE THAT THE STATUTES' EFFECT GREATLY COMPLICATES
THEIR TASK OF SUPERVISING THE CONDITION OF KOSHER MEAT BECAUSE THE MEAT
DELIVERED ON FRIDAY WOULD HAVE TO BE KEPT UNTIL MONDAY.  FURTHERMORE,
APPELLEES CONTEND THAT, BECAUSE OF ALL THIS, THE STATUTES DISCRIMINATE
AGAINST THEIR RELIGION. 

THESE ALLEGATIONS ARE SIMILAR, ALTHOUGH NOT AS GRAVE, AS THOSE MADE
BY APPELLANTS IN BRAUNFELD V. BROWN, ANTE, P. 599.  SINCE THE DECISION
IN THAT CASE REJECTS THE CONTENTIONS PRESENTED BY THESE APPELLEES ON
THE MERITS, WE NEED NOT DECIDE WHETHER APPELLEES HAVE STANDING TO RAISE
THESE QUESTIONS.  (FN7) 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE HARLAN CONCUR IN A SEPARATE
OPINION. 

ACCORDINGLY, THE DECISION BELOW IS REVERSED. 

FN1  THE STATUTORY SECTIONS IMMEDIATELY BEFORE THE COURT ARE MASS.
GEN. LAWS ANN., C. 136, SECS. 5 AND 6.  THE MASSACHUSETTS SUNDAY
CLOSING LAWS IN THEIR ENTIRETY MAY BE FOUND IN MASS.  GEN. LAWS ANN.,
C. 136; C. 131, SEC. 58; C. 138, SECS. 12 AND 33; C. 149, SECS. 47 AND
48; C. 266, SECS. 113 AND 117.  THOSE SECTIONS CONSIDERED PARTICULARLY
RELEVANT ARE SET FORTH IN AN APPENDIX TO THIS OPINION. 

FN2  A SIMILAR ARGUMENT MADE IS THAT THE EXEMPTIONS FROM THE
STATUTES' PROSCRIPTION "EAT UP THE RULE," BEAR NO RATIONAL RELATIONSHIP
TO THE ALLEGED INTEREST OF THE STATE AND THEREFORE VIOLATE DUE
PROCESS. 

FN3  IT MAY BE NOTED THAT, CONTRARY TO THE INTERPRETATION OF THE
COURT BELOW, SINCE THERE IS NO RESTRICTION ON THE SALE OF MILK, CROWN
MAY VEND IT AT ANY TIME ON SUNDAY. 

FN4  A 1953 REPORT CONCLUDED: 

"THE WAVE OF MATERIALISM WHICH IS SWEEPING THE COUNTRY MAKES IT MOST
IMPORTANT THAT ONE DAY BE SET ASIDE FOR WORSHIP, REST AND TO GIVE ALL
PERSONS AN OPPORTUNITY TO STRENGTHEN THE BULWARK OF OUR AMERICAN
CIVILIZATION - THE HOME."  REPORT OF THE UNPAID SPECIAL COMMISSION TO
INVESTIGATE AND STUDY THE PROVISIONS OF THE LAWS RELATING TO THE
OBSERVANCE OF THE LORD'S DAY, MASS. LEG.  DOCS., H. DOC. NO. 2413
(1954) 9. 

FN5  DAVIS V. SOMERVILLE, 128 MASS. 594 (1880); COMMONWEALTH V.
DEXTRA, 143 MASS. 28, 8 N.E. 756 (1886); COMMONWEALTH V. WHITE, 190
MASS. 578, 77 N.E. 636 (1906); COMMONWEALTH V. MCCARTHY, 244 MASS. 484,
138 N.E. 835 (1923). 

FN6  E.G., "THE LEGISLATURE INTENDED BY THIS STATUTE TO KEEP THE
ORDINARY PLACES OF TRAFFIC, BUSINESS, AND WORK CLOSED ON THIS DAY, SO
THAT THOSE PERSONS WHO DESIRED TO RELAX FROM LABOR AND BUSINESS, AND
ATTEND TO PRIVATE AND PUBLIC WORSHIP, MIGHT NOT BE DISTURBED BY PERSONS
PURSUING THEIR WORLDLY BUSINESS AND AVOCATIONS IN OPEN SHOP." 
COMMONWEALTH V. DEXTRA, 143 MASS., AT P. 31, 8 N.E., AT P. 759. 

FN7  APPELLANTS HAVE ADVANCED SEVERAL PROCEDURAL ARGUMENTS.  SINCE
THESE WERE BRIEFED ONLY AS ANCILLARY ISSUES AND WERE NOT ORALLY ARGUED,
AND SINCE THEIR DETERMINATION IS NOT NECESSARY TO THE DISPOSITION OF
THE MAJOR QUESTIONS PRESENTED, WE DEEM IT INAPPROPRIATE TO PASS UPON
THEM NOW. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE HARLAN,
SEE ANTE, P. 459. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 561. 

FOR DISSENTING OPINION OF MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART, SEE POST, P. 642. 

        APPENDIX TO OPINION OF THE CHIEF JUSTICE. 

MASSACHUSETTS GENERAL LAWS ANNOTATED, C. 136. 

SEC. 1.  LORD'S DAY, DEFINITION.  THE LORD'S DAY SHALL INCLUDE THE
TIME FROM MIDNIGHT TO MIDNIGHT. 

SEC. 2.  PRESENCE AT GAMES, SPORTS, PLAYS OR PUBLIC DIVERSIONS ON THE
LORD'S DAY; EXCEPTIONS.  WHOEVER ON THE LORD'S DAY IS PRESENT AT A
GAME, SPORT, PLAY OR PUBLIC DIVERSION, EXCEPT A CONCERT OF SACRED
MUSIC, A PUBLIC ENTERTAINMENT DULY LICENSED AS PROVIDED IN SECTION FOUR
OR A FREE OPEN AIR CONCERT GIVEN BY A TOWN, OR BY LICENSE OF THE MAYOR
OR THE SELECTMEN, UPON A COMMON OR PUBLIC PARK, STREET OR SQUARE, OR
EXCEPT A GAME OF GOLF CONDUCTED ON AN OPEN AIR GOLF COURSE, OR EXCEPT A
GAME OF TENNIS OR DANCING AT A WEDDING OR CELEBRATION OF A RELIGIOUS
CUSTOM OR RITUAL IF NO CHARGE IS MADE FOR BEING PRESENT OR FOR DANCING,
OR EXCEPT AFTER ONE O'CLOCK POST-MERIDIAN A GAME OF OUTDOOR LAWN
BOWLING OR THE PLAYING OF GOLF OR DRIVING ON AN OUTDOOR GOLF DRIVING
RANGE OR PLAYING ON A MINIATURE GOLF COURSE, SO CALLED, SHALL BE
PUNISHED BY A FINE OF NOT MORE THAN FIVE DOLLARS.  WHOEVER ON THE
LORD'S DAY TAKES PART IN ANY GAME, SPORT, PLAY OR PUBLIC DIVERSION,
EXCEPT AS AFORESAID, SHALL BE PUNISHED BY A FINE OF NOT MORE THAN FIFTY
DOLLARS.  THIS AND THE FOLLOWING SECTION SHALL NOT APPLY TO AMUSEMENT
ENTERPRISES LAWFULLY CONDUCTED UNDER SECTION FOUR A OR FOUR B OR TO
SPORTS OR GAMES CONDUCTED IN ACCORDANCE WITH SECTIONS TWENTY-ONE TO
TWENTY-FIVE, INCLUSIVE, IN ANY CITY OR TOWN WHICH ACCEPTS SAID SECTIONS
OR IN ACCORDANCE WITH SECTIONS TWENTY-SIX TO THIRTY-TWO, INCLUSIVE, IN
ANY CITY OR TOWN IN WHICH SAID SECTIONS TWENTY-SIX TO THIRTY-TWO ARE
THEN IN FORCE.    SEC. 3.  ESTABLISHING AND MAINTAINING PUBLIC
ENTERTAINMENT ON THE LORD'S DAY.  WHOEVER OFFERS TO VIEW, SETS UP,
ESTABLISHES, MAINTAINS, OR ATTEMPTS TO SET UP, ESTABLISH OR MAINTAIN,
OR PROMOTES OR ASSISTS IN SUCH ATTEMPT, OR PROMOTES, OR AIDS, ABETS OR
PARTICIPATES IN OFFERING TO VIEW, SETTING UP, ESTABLISHING OR
MAINTAINING ANY PUBLIC ENTERTAINMENT ON THE LORD'S DAY, EXCEPT AS
PROVIDED IN SECTION TWO, UNLESS SUCH PUBLIC ENTERTAINMENT SHALL BE IN
KEEPING WITH THE CHARACTER OF THE DAY AND NOT INCONSISTENT WITH ITS DUE
OBSERVANCE AND DULY LICENSED AS PROVIDED IN SECTION FOUR, OR WHOEVER ON
THE LORD'S DAY ACTS AS PROPRIETOR, MANAGER OR PERSON IN CHARGE OF A
GAME, SPORT, PLAY OR PUBLIC DIVERSION, EXCEPT A PUBLIC ENTERTAINMENT
LICENSED UNDER SECTION FOUR AND EXCEPT AS PROVIDED IN SECTION TWO,
SHALL BE PUNISHED BY A FINE OF NOT MORE THAN FIVE HUNDRED DOLLARS. 

SEC. 4.  LICENSE TO HOLD PUBLIC ENTERTAINMENT ON THE LORD'S DAY;
APPLICATION; FEE; SUSPENSION; REVOCATION; HEARING.  EXCEPT AS PROVIDED
IN SECTION ONE HUNDRED AND FIVE OF CHAPTER ONE HUNDRED AND FORTY-NINE,
THE MAYOR OF A CITY OR THE SELECTMEN OF A TOWN MAY, UPON WRITTEN
APPLICATION DISCRIBING THE PROPOSED ENTERTAINMENT, GRANT, UPON SUCH
TERMS OR CONDITIONS AS THEY MAY PRESCRIBE, A LICENSE TO HOLD ON THE
LORD'S DAY A PUBLIC ENTERTAINMENT, INCLUDING MUSICAL ENTERTAINMENT
PROVIDED BY MECHANICAL OR ELECTRICAL MEANS, IN KEEPING WITH THE
CHARACTER OF THE DAY AND NOT INCONSISTENT WITH ITS DUE OBSERVANCE,
WHETHER OR NOT ADMISSION IS TO BE OBTAINED UPON PAYMENT OF MONEY OR
OTHER VALUABLE CONSIDERATION, AND, IF THE PROPOSED ENTERTAINMENT
DESCRIBED IN THE APPLICATION IS SOLELY FOR THE EXHIBITION OF MOTION
PICTURES, FOR THE BENEFIT OF PATRONS IN A PUBLIC DINING ROOM OR FOR THE
USE OF TELEVISION, THE USE OF RADIO, OR MUSICAL ENTERTAINMENT PROVIDED
BY MECHANICAL OR ELECTRICAL MEANS, THE MAYOR OR SELECTMEN MAY GRANT AN
ANNUAL LICENSE THEREFOR; PROVIDED, THAT NO SUCH LICENSE SHALL BE
GRANTED TO HAVE EFFECT BEFORE ONE O'CLOCK IN THE AFTERNOON, NOR SHALL
IT HAVE EFFECT UNLESS THE PROPOSED ENTERTAINMENT SHALL HAVE BEEN
APPROVED IN WRITING BY THE COMMISSIONER OF PUBLIC SAFETY AS BEING IN
KEEPING WITH THE CHARACTER OF THE DAY AND NOT INCONSISTENT WITH ITS DUE
OBSERVANCE.  THE APPLICATION FOR THE APPROVAL OF THE PROPOSED
ENTERTAINMENT BY THE COMMISSIONER SHALL BE ACCOMPANIED BY A FEE OF TWO
DOLLARS, OR, IN THE CASE OF AN APPLICATION FOR THE APPROVAL OF AN
ANNUAL LICENSE, AS HEREIN PROVIDED, BY A FEE OF FIFTY DOLLARS.  ANY
SUCH LICENSE MAY, AFTER NOTICE AND A HEARING GIVEN BY THE MAYOR OR
SELECTMEN ISSUING THE SAME, OR BY SAID COMMISSIONER, BE SUSPENDED,
REVOKED OR ANNULLED BY THE OFFICER OR BOARD GIVING THE HEARING.  THE
FOREGOING PROVISIONS, INSOFAR AS THEY AUTHORIZE ANY PERSON TO REFUSE TO
GRANT, OR TO SUSPEND, REVOKE OR ANNUL A LICENSE UPON THE GROUND THAT
THE PROPOSED ENTERTAINMENT IS NOT IN KEEPING WITH THE CHARACTER OF THE
LORD'S DAY OR NOT CONSISTENT WITH ITS DUE OBSERVANCE, AND INSOFAR AS
THEY REQUIRE WRITTEN APPROVAL OF THE PROPOSED ENTERTAINMENT BY SAID
COMMISSIONER, SHALL NOT APPLY TO ANY PERSON MAKING AN APPLICATION FOR A
LICENSE TO EXHIBIT MOTION PICTURES OR FOR THE USE OF RADIO OR
TELEVISION ON SAID DAY, NOR TO ANY LICENSE ISSUED UPON SUCH
APPLICATION. 

SEC. 4A.  MAINTENANCE AND OPERATION OF ENTERPRISES AT AMUSEMENT
PARKS, BEACHES OR RESORTS ON THE LORD'S DAY; LICENSES; SUSPENSION;
REVOCATION.  THE MAYOR OF A CITY OR THE SELECTMEN OF A TOWN, UPON
WRITTEN APPLICATION THEREFOR, AND UPON SUCH TERMS AND CONDITIONS AS
THEY MAY PRESCRIBE, MAY GRANT LICENSES FOR THE MAINTENANCE AND
OPERATION UPON THE LORD'S DAY AT AMUSEMENT PARKS OR BEACH RESORTS, SO
CALLED, IN SUCH CITY OR TOWN, OF ANY ENTERPRISE HEREINAFTER DESCRIBED,
FOR ADMISSION TO WHICH OR FOR THE USE OF WHICH A PAYMENT OF MONEY OR
OTHER VALUABLE CONSIDERATION MAY OR MAY NOT BE CHARGED, NAMELY:  -
BOWLING ALLEYS, SHOOTING GALLERIES RESTRICTED TO THE FIRING THEREIN OF
RIFLES, REVOLVERS OR PISTOLS USING CARTRIDGES NOT LARGER THAN TWENTY
TWO CALIBRE, PHOTOGRAPHIC GALLERIES OR STUDIOS IN WHICH PICTURES ARE
MADE AND SOLD, GAMES, AND SUCH AMUSEMENT DEVICES AS MAY LAWFULLY BE
OPERATED THEREIN ON SECULAR DAYS; PROVIDED, THAT NO SUCH LICENSE SHALL
BE GRANTED TO HAVE EFFECT BEFORE ONE O'CLOCK IN THE AFTERNOON, NOR
SHALL IT HAVE EFFECT UNLESS THE PROPOSED ENTERPRISE SHALL, UPON
APPLICATION ACCOMPANIED BY A FEE OF TWO DOLLARS, HAVE BEEN APPROVED IN
WRITING BY THE COMMISSIONER OF PUBLIC SAFETY AS PROVIDED IN THE CASE OF
PUBLIC ENTERTAINMENTS UNDER SECTION FOUR.  ANY LICENSEE HEREUNDER MAY
DISTRIBUTE PREMIUMS OR PRIZES IN CONNECTION WITH ANY GAME OR DEVICE
LAWFULLY MAINTAINED AND OPERATED BY HIM UNDER AUTHORITY HEREOF.  ANY
SUCH LICENSE MAY, AFTER NOTICE AND A HEARING GIVEN BY THE MAYOR OR
SELECTMEN ISSUING THE SAME, OR BY SAID COMMISSIONER, BE SUSPENDED,
REVOKED OR ANNULLED BY THE OFFICER OR BOARD GIVING THE HEARING.  SO
MUCH OF THIS SECTION AS RELATES TO THE MAINTENANCE AND OPERATION OF
BOWLING ALLEYS SHALL NOT APPLY IN ANY CITY OR TOWN WHICH SHALL HAVE
ACCEPTED THE PROVISIONS OF SECTION FOUR B. 

SEC. 4B.  LICENSES FOR OPERATION OF BOWLING ALLEYS ON THE LORD'S
DAY.  IN ANY CITY WHICH ACCEPTS THIS SECTION BY VOTE OF ITS CITY
COUNCIL AND IN ANY TOWN WHICH ACCEPTS THIS SECTION BY VOTE OF IS
INHABITANTS, THE CITY COUNCIL, WITH THE APPROVAL OF THE MAYOR, OR THE
SELECTMEN, AS THE CASE MAY BE, MAY GRANT LICENSES FOR THE OPERATION OF
BOWLING ALLEYS ON THE LORD'S DAY BETWEEN THE HOURS OF ONE AND ELEVEN
POST MERIDIAN; PROVIDED, THAT NO SUCH LICENSE MAY AUTHORIZE THE
OPERATION OF BOWLING ALLEYS ON EASTER, OR ON CHRISTMAS DAY IF SUCH DAY
FALLS ON THE LORD'S DAY.  EVERY LICENSE GRANTED HEREUNDER SHALL SPECIFY
THE LOCATION OF THE PLACE OF BUSINESS IN WHICH THE LICENSE IS TO BE
EXERCISED, AND THE LICENSE SHALL NOT BE VALID IN ANY OTHER PLACE. 
BOWLING ALLEYS OPERATED UNDER SUCH LICENSES SHALL BE OPERATED SUBJECT
TO SUCH REGULATIONS AND RESTRICTIONS AS SHALL BE PRESCRIBED FROM TIME
TO TIME BY THE CITY COUNCIL, WITH THE APPROVAL OF THE MAYOR, OR BY THE
SELECTMEN.  SAID REGULATIONS AND RESTRICTIONS SHALL BE STATED IN THE
LICENSE.  SAID LICENSING AUTHORITIES MAY AT ANY TIME AND WITHOUT
PREVIOUS NOTICE REVOKE LICENSES ISSUED UNDER THIS SECTION IF THEY HAVE
REASON TO BELIEVE THAT ANY PROVISION OF THIS SECTION, OR OF ANY
REGULATION OR RESTRICTION PRESCRIBED THEREUNDER, IS BEING OR WILL BE
VIOLATED. 

SEC. 5.  KEEPING OPEN SHOPS OR WAREHOUSES AND CONDUCTING BUSINESS OR
DOING WORK ON THE LORD'S DAY.   WHOEVER ON THE LORD'S DAY KEEPS OPEN
HIS SHOP, WAREHOUSE OR WORKHOUSE, OR DOES ANY MANNER OF LABOR, BUSINESS
OR WORK, EXCEPT WORKS OF NECESSITY AND CHARITY, SHALL BE PUNISHED BY A
FINE OF NOT MORE THAN FIFTY DOLLARS. 

SEC. 6.  LIMIT OF OPERATION OF SECTION 5.  THE PRECEDING SECTION
SHALL NOT PROHIBIT THE MANUFACTURE AND DISTRIBUTION OF STEAM, GAS OR
ELECTRICITY FOR ILLUMINATING PURPOSES, HEAT OR MOTIVE POWER; THE
DISTRIBUTION OF WATER FOR FIRE OR DOMESTIC PURPOSES; THE USE OF THE
TELEGRAPH OR THE TELEPHONE; THE MANUFACTURE AND DISTRIBUTION OF OXYGEN,
HYDROGEN, NITROGEN, ACETYLENE AND CARBON DIOXIDE; THE RETAIL SALE OF
DRUGS AND MEDICINES, OR ARTICLES ORDERED BY THE PRESCRIPTION OF A
PHYSICIAN, OR MECHANICAL APPLIANCES USED BY PHYSICIANS OR SURGEONS. 

NOR SHALL IT PROHIBIT THE RETAIL SALE OF TOBACCO IN ANY OF ITS FORMS
BY LICENSED INNHOLDERS, COMMON VICTUALLERS, DRUGGISTS AND NEWSDEALERS
WHOSE STORES ARE OPEN FOR THE SALE OF NEWSPAPERS EVERY DAY IN THE WEEK;
THE RETAIL SALE OF BREAD, BEFORE TEN O'CLOCK IN THE FORENOON AND
BETWEEN THE HOURS OF FOUR O'CLOCK AND HALF PAST SIX O'CLOCK IN THE
AFTERNOON BY LICENSED INNHOLDERS AND BY LICENSED COMMON VICTUALLERS
AUTHORIZED TO KEEP OPEN THEIR PLACES OF BUSINESS ON THE LORD'S DAY AND
BY PERSONS LICENSED UNDER THE FOLLOWING SECTION TO KEEP OPEN THEIR
PLACES OF BUSINESS AS AFORESAID; THE RETAIL SALE OF FROZEN DESSERTS
AND/OR FROZEN DESSERT MIX, SODA WATER AND CONFECTIONERY BY LICENSED
INNHOLDERS AND DRUGGISTS, AND BY SUCH LICENSED COMMON VICTUALLERS AS
ARE NOT ALSO LICENSED TO SELL ALCOHOLIC BEVERAGES, AS DEFINED IN
AUTHORIZED TO KEEP OPEN THEIR PLACES OF BUSINESS ON THE LORD'S DAY; THE
SALE OF FROZEN DESSERTS AND/OR FROZEN DESSERT MIX, SODA WATER,
CONFECTIONERY OR FRUIT BY PERSONS LICENSED UNDER THE FOLLOWING SECTION
OR THE KEEPING OPEN OF THEIR PLACES OF BUSINESS FOR THE SALE THEREOF;
THE SALE OF LIVE BAIT FOR USE BY FISHERMEN FOR NON-COMMERCIAL
PURPOSES. 

NOR SHALL IT PROHIBIT WORK LAWFULLY DONE BY PERSONS WORKING UNDER
PERMITS GRANTED UNDER SECTION NINE; THE SALE BY LICENSED INNHOLDERS AND
COMMON VICTUALLERS OF MEALS SUCH AS ARE USUALLY SERVED BY THEM,
CONSISTING IN NO PART OF ALCOHOLIC BEVERAGES, AS SO DEFINED, WHICH
MEALS ARE COOKED ON THE PREMISES BUT ARE NOT TO BE CONSUMED THEREON;
THE OPERATION OF MOTOR VEHICLES; THE SALE OF GASOLINE AND OIL FOR USE,
AND THE RETAIL SALE OF ACCESSORIES FOR IMMEDIATE NECESSARY USE, IN
CONNECTION WITH THE OPERATION OF MOTOR VEHICLES, MOTOR BOATS AND
AIRCRAFT; THE MAKING OF SUCH EMERGENCY REPAIRS ON DISABLED MOTOR
VEHICLES AS MAY BE NECESSARY TO PERMIT SUCH VEHICLES TO BE TOWED OR TO
PROCEED UNDER THEIR OWN POWER, AND THE TOWING OF DISABLED MOTOR
VEHICLES; THE LETTING OF HORSES AND CARRIAGES OR OF BOATS, MOTOR
VEHICLES OR BICYCLES; THE LETTING ON TRAINS OF EQUIPMENT OR ACCESSORIES
FOR PERSONAL USE IN CONNECTION WITH OUTDOOR RECREATION AND SPORTS
ACTIVITIES; UNPAID WORK ON PLEASURE BOATS; THE RUNNING OF STEAM FERRY
BOATS ON ESTABLISHED ROUTES; THE RUNNING OF STREET RAILWAY CARS; THE
RUNNING OF STEAMBOAT LINES AND RAILROAD TRAINS OR OF STEAMBOATS. 

NOR SHALL IT PROHIBIT THE PREPARATION, PRINTING AND PUBLICATION OF
NEWSPAPERS, OR THE SALE AND DELIVERY THEREOF; THE WHOLESALE OR RETAIL
SALE AND DELIVERY OF MILK, OR THE TRANSPORTATION THEREOF, OR THE
DELIVERY OF FROZEN DESSERTS OR FROZEN DESSERT MIX, OR BOTH, OR THE
WHOLESALE OR RETAIL SALE OF ICE OR OF FUEL; THE TRANSPORTATION OF
GENERAL COMMODITIES BY MOTOR TRUCK OR TRAILERS, THEN ENGAGED IN
INTERSTATE COMMERCE BEFORE EIGHT O'CLOCK IN THE FORENOON AND AFTER
EIGHT O'CLOCK IN THE EVENING OR IN THE EVENT OF AN EMERGENCY BETWEEN
THE AFORESAID HOURS; THE TRANSPORTATION OF PETROLEUM PRODUCTS BY MOTOR
TRUCK OR TRAILERS THEN ENGAGED IN INTRASTATE COMMERCE BEFORE SIX
O'CLOCK IN THE FORENOON AND AFTER TEN O'CLOCK IN THE EVENING; THE
TRANSPORTATION OF LIVESTOCK, FARM COMMODITIES AND FARM EQUIPMENT FOR
PARTICIPATION IN FAIRS, EXHIBITIONS AND SPORTING EVENTS AND VETERINARY
PURPOSES; THE HANDLING, TRANSPORTATION AND DELIVERY OF FISH AND
PERISHABLE FOODSTUFFS AT WHOLESALE; THE SALE AT WHOLESALE OF DRESSED
POULTRY, AND THE TRANSPORTATION OF SUCH POULTRY SO SOLD, ON THE LORD'S
DAY NEXT PRECEDING THANKSGIVING DAY, AND ON THE LORD'S DAY NEXT
PRECEDING CHRISTMAS DAY EXCEPT WHEN CHRISTMAS DAY OCCURS ON SATURDAY,
THE LORD'S DAY OR MONDAY; THE MAKING OF BUTTER AND CHEESE; THE KEEPING
OPEN OF PUBLIC BATHHOUSES; THE MAKING OR SELLING BY BAKERS OR THEIR
EMPLOYEES, BEFORE TEN O'CLOCK IN THE FORENOON AND BETWEEN THE HOURS OF
FOUR O'CLOCK AND HALF PAST SIX O'CLOCK IN THE AFTERNOON, OF BREAD OR
OTHER FOOD USUALLY DEALT IN BY THEM; WHENEVER ROSH HASHONAH, OR THE DAY
OF ATONEMENT, BEGINS ON THE LORD'S DAY, THE RETAIL SALE AND DELIVERY OF
FISH, FRUIT AND VEGETABLES BEFORE TWELVE O'CLOCK NOON OF THAT DAY; THE
SELLING OR DELIVERING OF KOSHER MEAT BY ANY PERSON WHO, ACCORDING TO
HIS RELIGIOUS BELIEF, OBSERVES SATURDAY AS THE LORD'S DAY BY CLOSING
HIS PLACE OF BUSINESS DURING THE DAY UNTIL SIX O'CLOCK IN THE
AFTERNOON, OR THE KEEPING OPEN OF HIS SHOP ON THE LORD'S DAY FOR THE
SALE OF KOSHER MEAT BETWEEN THE HOURS OF SIX O'CLOCK AND TEN O'CLOCK IN
THE FORENOON. 

NOR SHALL IT PROHIBIT THE PERFORMING OF SECULAR BUSINESS AND LABOR ON
THE LORD'S DAY BY ANY PERSON WHO CONSCIENTIOUSLY BELIEVES THAT THE
SEVENTH DAY OF THE WEEK OUGHT TO BE OBSERVED AS THE SABBATH AND
ACTUALLY REFRAINS FROM SECULAR BUSINESS AND LABOR ON THAT DAY, IF HE
DISTURBS NO OTHER PERSON THEREBY; THE CARRYING ON OF THE BUSINESS OF
BOOTBLACK BEFORE ELEVEN O'CLOCK IN THE FORENOON, UNLESS PROHIBITED IN A
CITY OR TOWN BY ORDINANCE OR BY-LAW; THE DIGGING OF CLAMS; THE ICING
AND DRESSING OF FISH; THE CULTIVATION OF LAND, AND THE RAISING,
HARVESTING, CONSERVING AND TRANSPORTING OF AGRICULTURAL PRODUCTS DURING
THE EXISTENCE OF WAR BETWEEN THE UNITED STATES AND ANY OTHER NATION AND
UNTIL THE FIRST DAY OF JANUARY FOLLOWING THE TERMINATION THEREOF; SUCH
UNPAID WORK IN OR ABOUT PRIVATE GARDENS OR PRIVATE GROUNDS, ADJACENT TO
A DWELLING HOUSE, AS SHALL NOT CAUSE UNREASONABLE NOISE, HAVING REGARD
TO THE LOCALITY WHERE SUCH WORK IS PERFORMED. 

NOR SHALL IT PROHIBIT THE SALE OF CATALOGUES OF PICTURES AND OTHER
WORKS OF ART IN EXHIBITIONS HELD BY SOCIETIES ORGANIZED FOR THE PURPOSE
OF PROMOTING EDUCATION IN THE FINE ARTS OR THE EXPOSURE OF PHOTOGRAPHIC
PLATES AND FILMS FOR PLEASURE, IF THE PICTURES TO BE MADE THEREFROM ARE
NOT INTENDED TO BE SOLD AND ARE NOT SOLD. 

NOR SHALL IT PROHIBIT THE CONDUCT OF ANY ENTERPRISE LAWFULLY
CONDUCTED UNDER SECTION FOUR A OR SECTION FOUR B. 

NOR SHALL IT PROHIBIT THE NECESSARY PREPARATION FOR AND THE
CONDUCTING OF PRIVATE INDUSTRIAL TRADE EXPOSITIONS WHICH ARE NOT OPEN
TO THE GENERAL PUBLIC; PROVIDED, THAT SAID EXPOSITIONS SHALL BE KEPT
OPEN ONLY BETWEEN THE HOURS OF ONE AND TEN O'CLOCK POST MERIDIAN. 

NOR SHALL IT PROHIBIT THE SALE OF FRUIT AND VEGETABLES BY THE PERSON
WHO RAISED THE SAME, OR BY HIS AGENT THEREUNTO DULY AUTHORIZED, ON
PREMISES OWNED OR LEASED BY HIM. 

SEC. 7.  SALE OF FROZEN DESSERTS, FROZEN DESSERT MIX OR CONFECTIONERY
ON THE LORD'S DAY.  IN BOSTON, AND IN ANY OTHER CITY OF TOWN WHICH
ACCEPTS THIS AND SECTION EIGHT OR HAS ACCEPTED CORRESPONDING PROVISIONS
OF EARLIER LAWS, IN A CITY BY ITS CITY COUNCIL OR IN A TOWN BY THE
VOTERS OF THE TOWN AT AN ANNUAL TOWN MEETING, THE LICENSING BOARD OR
OFFICER IN SUCH CITY OR TOWN, OR IF THERE IS NO SUCH BOARD OR OFFICER
THE ALDERMEN OF A CITY, OR IF THERE ARE NO ALDERMEN THE CITY COUNCIL,
WITH THE APPROVAL OF THE MAYOR, OR THE SELECTMEN OF A TOWN, MAY GRANT,
TO ANY REPUTABLE PERSON WHO ON SECULAR DAYS IS A RETAIL DEALER IN
FROZEN DESSERTS AND/OR FROZEN DESSERT MIX, CONFECTIONERY, SODA WATER OR
FRUIT AND WHO DOES NOT HOLD A LICENSE FOR THE SALE OF ALCOHOLIC
BEVERAGES, AS DEFINED IN SECTION ONE OF CHAPTER ONE HUNDRED AND THIRTY
EIGHT, A LICENSE TO KEEP OPEN HIS PLACE OF BUSINESS ON THE LORD'S DAY
FOR THE SALE OF FROZEN DESSERTS AND/OR FROZEN DESSERT MIX,
CONFECTIONERY, SODA WATER OR FRUIT.    SEC. 9.  PERMIT FOR PERFORMANCE
OF NECESSARY WORK OR LABOR ON THE LORD'S DAY.  THE POLICE COMMISSIONER
OF BOSTON, OR ANY MEMBER OF THE POLICE DEPARTMENT HAVING A RANK NOT
LOWER THAN THAT OF CAPTAIN AND DESIGNATED BY SAID COMMISSIONER, OR THE
CHIEF OF POLICE OR OTHER OFFICER IN CHARGE OF THE POLICE DEPARTMENT OF
ANY OTHER CITY OR OF ANY TOWN, OR THE CHAIRMAN OF THE BOARD OF
SELECTMEN OF ANY TOWN, UPON SUCH TERMS AND CONDITIONS AS HE DEEMS
REASONABLE, MAY ISSUE A PERMIT FOR THE PERFORMANCE ON THE LORD'S DAY OF
NECESSARY WORK OR LABOR WHICH IN HIS JUDGMENT COULD NOT BE PERFORMED ON
ANY OTHER DAY WITHOUT SERIOUS SUFFERING, LOSS, DAMAGE OR PUBLIC
INCONVENIENCE.  SUCH PERMIT SHALL COVER NOT MORE THAN ONE DAY AND SHALL
NOT BE ISSUED MORE THAN SIX DAYS PRIOR TO THE DAY FOR WHICH IT IS
ISSUED. 

SEC. 21.  ATHLETIC OUTDOOR SPORTS OR GAMES.  IN ANY CITY WHICH
ACCEPTS SECTIONS TWENTY-ONE TO TWENTY-FIVE, INCLUSIVE, BY VOTE OF ITS
CITY COUNCIL, OR IN ANY TOWN WHICH ACCEPTS SAID SECTIONS BY VOTE OF ITS
INHABITANTS, IT SHALL BE LAWFUL ON THE LORD'S DAY TO TAKE PART IN OR
WITNESS ANY ATHLETIC OUTDOOR SPORT OR GAME, AS HEREINAFTER PROVIDED,
BETWEEN THE HOURS OF ONE THIRTY AND SIX THIRTY POST MERIDIAN AND, IN
THE CASE OF A BASEBALL GAME COMMENCED BEFORE THE HOUR OF SIX THIRTY
POST MERIDIAN, FOR SUCH FURTHER TIME BEYOND SAID HOUR AS MAY BE
NECESSARY TO COMPLETE SAID GAME; PROVIDED, THAT SAID GAME HAD BEEN
SCHEDULED TO COMMENCE AT OR BEFORE THE HOUR OF THREE POST MERIDIAN, OR
IS THE SECOND OF TWO SUCCESSIVE GAMES TO BE PLAYED ON THE SAME DAY, THE
FIRST OF WHICH HAD BEEN SCHEDULED TO COMMENCE AT OR BEFORE THE HOUR OF
TWO POST MERIDIAN.  IN ANY SUCH CITY OR TOWN IT SHALL BE LAWFUL ON THE
LORD'S DAY TO TAKE PART IN OR WITNESS, AS HEREINAFTER PROVIDED, ANY
INDOOR HOCKEY OR BASKETBALL GAME BETWEEN THE HOURS OF ONE THIRTY POST
MERIDIAN AND TWELVE MIDNIGHT. 

SEC. 22.  LICENSED PLAYGROUNDS OR PARKS FOR ATHLETIC OUTDOOR SPORTS
OR GAMES.  SUCH SPORTS OR GAMES SHALL TAKE PLACE ON SUCH PLAYGROUNDS,
PARKS OR OTHER PLACES AS MAY BE DESIGNATED FOR THAT PURPOSE IN A
LICENSE OR PERMIT ISSUED BY THE CITY COUNCIL, WITH THE APPROVAL OF THE
MAYOR, OR BY THE SELECTMEN; PROVIDED, THAT IF, UNDER ANY STATUTE OR
ORDINANCE, A PUBLIC PLAYGROUND OR PARK IS PLACED UNDER THE EXCLUSIVE
CHARGE AND AUTHORITY OF ANY OTHER OFFICIALS, SUCH OFFICIALS SHALL, FOR
THAT PLAYGROUND OR PARK, BE THE LICENSING AUTHORITY; AND PROVIDED, THAT
NO SPORT OR GAME SHALL BE PERMITTED IN A PLACE, OTHER THAN A PUBLIC
PLAYGROUND OR PARK, WITHIN ONE THOUSAND FEET OF ANY REGULAR PLACE OF
WORSHIP. 

SEC. 26.  ATHLETIC OUTDOOR SPORTS OR GAMES NOT INVOLVING PECUNIARY
REWARD, REMUNERATION OR CONSIDERATION.  IN ANY CITY OR TOWN WHEREIN THE
CORRESPONDING PROVISIONS OF THIS AND THE SIX FOLLOWING SECTIONS WERE IN
EFFECT ON THE SIXTH DAY OF DECEMBER, NINETEEN HUNDRED AND TWENTY-EIGHT,
AND WHICH HAS NOT VOTED AGAINST SAID SECTIONS ON RESUBMISSION AS
PROVIDED IN SECTION THIRTY-ONE, IT SHALL BE LAWFUL TO TAKE PART IN OR
WITNESS ANY ATHLETIC OUTDOOR SPORT OR GAME, IN WHICH THE CONTESTANTS DO
NOT RECEIVE AND HAVE NOT BEEN PROMISED ANY PECUNIARY REWARD,
REMUNERATION OR CONSIDERATION WHATSOEVER DIRECTLY OR INDIRECTLY IN
CONNECTION THEREWITH, ON THE LORD'S DAY BETWEEN THE HOURS OF TWO AND
SIX IN THE AFTERNOON AS HEREINAFTER PROVIDED. 

SEC. 27.  LICENSED PLAYGROUNDS OR PARKS FOR ATHLETIC OUTDOOR SPORTS
OR GAMES NOT INVOLVING PECUNIARY AWARD, REMUNERATION OR CONSIDERATION. 
SUCH SPORTS OR GAMES SHALL TAKE PLACE ON SUCH PLAYGROUNDS, PARKS OR
OTHER PLACES AS MAY BE DESIGNATED FOR THAT PURPOSE IN A LICENSE OR
PERMIT ISSUED BY THE CITY COUNCIL, WITH THE APPROVAL OF THE MAYOR, OR
BY THE SELECTMEN; PROVIDED, THAT IF, UNDER ANY STATUTE OR ORDINANCE, A
PUBLIC PLAYGROUND OR PARK IS PLACED UNDER THE EXCLUSIVE CHARGE AND
AUTHORITY OF ANY OTHER OFFICIALS, SUCH OFFICIALS SHALL, FOR THAT
PLAYGROUND OR PARK, BE THE LICENSING AUTHORITY; AND PROVIDED, THAT NO
SPORT OR GAME SHALL BE PERMITTED IN A PLACE, OTHER THAN A PUBLIC
PLAYGROUND OR PARK, WITHIN ONE THOUSAND FEET OF ANY REGULAR PLACE OF
WORSHIP. 

MR. JUSTICE BRENNAN AND MR. JUSTICE STEWART DISSENT.  THEY ARE OF THE
OPINION THAT THE MASSACHUSETTS STATUTE, AS APPLIED TO THE APPELLEES IN
THIS CASE, PROHIBITS THE FREE EXERCISE OF RELIGION.  SEE THEIR
DISSENTING OPINIONS IN BRAUNFELD V. BROWN, ANTE, PP. 610, 616. 
..END :
















UNITED STATES V. OREGON 366 U.S. 643 


NO. 329.  ARGUED APRIL 25, 1961 - DECIDED MAY 29, 1961 - 222 ORE.  40,
352 P.2D 539, REVERSED. 


AN OREGON RESIDENT DIED IN A UNITED STATES VETERANS' ADMINISTRATION
HOSPITAL IN OREGON WITHOUT A WILL OR LEGAL HEIRS, LEAVING A NET ESTATE
OF PERSONAL PROPERTY.  HE HAD NOT ENTERED INTO A CONTRACT WITH THE
UNITED STATES CONCERNING SUCH PROPERTY AND WAS MENTALLY INCOMPETENT TO
DO SO.  OREGON CLAIMED SUCH PROPERTY UNDER ITS ESCHEAT LAW, AND THE
UNITED STATES CLAIMED IT UNDER 38 U.S.C. (1952 ED.)  SEC.  17, WHICH
PROVIDES THAT, WHEN A VETERAN DIES IN SUCH A HOSPITAL WITHOUT A WILL OR
LEGAL HEIRS, HIS PERSONAL PROPERTY "SHALL IMMEDIATELY VEST IN AND
BECOME THE PROPERTY OF THE UNITED STATES AS TRUSTEE FOR THE SOLE USE
AND BENEFIT OF THE GENERAL POST FUND."  HELD:  THE UNITED STATES WAS
ENTITLED TO THE PROPERTY AS SUCH TRUSTEE.  PP. 643-649. 

(A)  THE FEDERAL STATUTE OPERATES AUTOMATICALLY AND DOES NOT REQUIRE
THAT THE VETERAN SHALL HAVE ENTERED INTO A CONTRACT WITH THE UNITED
STATES.  PP. 645-648. 

(B)  THE STATUTE IS WITHIN THE POWER OF CONGRESS, AND IT DOES NOT
VIOLATE THE TENTH AMENDMENT.  PP. 648-649. 

UNITED STATES, TRUSTEE, V. OREGON. 

CERTIORARI TO THE SUPREME COURT OF OREGON. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ADAM WARPOUSKE, AN OREGON RESIDENT, DIED IN A UNITED STATES VETERANS'
ADMINISTRATION HOSPITAL IN OREGON WITHOUT A WILL OR LEGAL HEIRS,
LEAVING A NET ESTATE COMPOSED OF PERSONAL PROPERTY WORTH ABOUT
$13,000.  OREGON LAW PROVIDES THAT SUCH PROPERTY SHALL ESCHEAT TO THE
STATE.  (FN1)  A UNITED STATES STATUTE, ON THE OTHER HAND, PROVIDES
THAT WHEN A VETERAN DIES WITHOUT A WILL OR LEGAL HEIRS IN A VETERANS'
HOSPITAL, HIS PERSONAL PROPERTY "SHALL IMMEDIATELY VEST IN AND BECOME
THE PROPERTY OF THE UNITED STATES AS TRUSTEE FOR THE SOLE USE AND
BENEFIT OF THE GENERAL POST FUND  ...  ."  (FN2)  IN RELIANCE UPON
THESE PROVISIONS OF THEIR RESPECTIVE STATUTES, BOTH THE STATE OF OREGON
AND THE GOVERNMENT OF THE UNITED STATES FILED CLAIMS FOR WARPOUSKE'S
ESTATE IN THE OREGON PROBATE COURT HAVING JURISDICTION OF THE MATTER. 

RECOGNIZING THAT THE FEDERAL STATUTE, IF APPLICABLE AND VALID, WOULD
MAKE THE CLAIM OF THE UNITED STATES PARAMOUNT, THE STATE ATTACKED THE
GOVERNMENT'S RELIANCE UPON THAT STATUTE ON TWO GROUNDS: FIRST, IT URGED
THAT THE FEDERAL STATUTE DID NOT APPLY TO THIS CASE ON THE THEORY THAT
ITS PROVISIONS DEPENDED UPON THE GOVERNMENT'S HAVING MADE A VALID
CONTRACT WITH THE VETERAN PRIOR TO HIS DEATH AND THAT WARPOUSKE HAD
MADE NO SUCH CONTRACT BECAUSE HE HAD BEEN MENTALLY INCOMPETENT TO DO SO
WHEN HE ENTERED THE HOSPITAL AND AT ALL TIMES THEREAFTER UP TO HIS
DEATH; AND, SECONDLY, IT URGED THAT THE FEDERAL STATUTE, EVEN IF
APPLICABLE, WAS INVALID BECAUSE IT PERTAINS TO THE DEVOLUTION OF
PROPERTY, A MATTER CONTENDED TO HAVE BEEN WHOLLY RESERVED TO THE STATES
BY THE TENTH AMENDMENT. 

AFTER HEARINGS, THE PROBATE COURT FOUND AS A FACT THAT WARPOUSKE HAD
BEEN UNABLE TO ENTER INTO A VALID CONTRACT WITH THE GOVERNMENT BECAUSE
OF HIS MENTAL INCOMPETENCE.  THAT COURT THEN ACCEPTED THE STATE'S
INTERPRETATION OF THE FEDERAL STATUTE AS REQUIRING A VALID CONTRACT AS
A PREREQUISITE TO ITS APPLICATION AND CONCLUDED THAT SINCE SUCH A
CONTRACT COULD NOT, IN THIS CASE, HAVE BEEN MADE, THE STATE WAS
ENTITLED TO WARPOUSKE'S PROPERTY BY VIRTUE OF ITS ESCHEAT LAW.  ON
APPEAL, THE STATE SUPREME COURT AFFIRMED ON THE SAME GROUNDS.  (FN3)
BECAUSE OF THE IMPORTANCE OF THIS QUESTION OF FEDERAL STATUTORY
CONSTRUCTION AND AN ALLEGED CONFLICT BETWEEN THIS DECISION AND
DECISIONS PREVIOUSLY MADE BY OTHER STATE COURTS OF FINAL JURISDICTION,
(FN4) WE GRANTED CERTIORARI.  (FN5) 

SINCE WE ACCEPT THE FINDINGS OF THE TWO STATE COURTS THAT WARPOUSKE
COULD NOT AND DID NOT ENTER INTO A CONTRACT TO LEAVE HIS PROPERTY TO
THE UNITED STATES, THE CRUCIAL QUESTION IS WHETHER THE GOVERNMENT CAN
PREVAIL IN THE ABSENCE OF SUCH A CONTRACT.  WE HOLD THAT IT CAN ON THE
GROUNDS THAT THE FEDERAL STATUTE RELIED UPON DOES NOT REQUIRE A
CONTRACT AND THAT THIS STATUTE DOES NOT VIOLATE THE TENTH AMENDMENT. 

THE CONTROLLING PROVISION WAS PASSED IN 1941 AS AN AMENDMENT TO THE
SUNDRY APPROPRIATIONS ACT OF 1910.  (FN6)  THE 1910 ACT QUITE PLAINLY
AND UNEQUIVOCALLY PROVIDED THAT THE ADMISSION OF AN APPLICANT TO A
VETERANS' HOME SHOULD "BE AND CONSTITUTE A VALID AND BINDING CONTRACT
BETWEEN SUCH APPLICANT AND THE BOARD OF MANAGERS OF SAID HOME THAT ON
THE DEATH OF SAID APPLICANT WHILE A MEMBER OF SUCH HOME, LEAVING NO
HEIRS AT LAW NOR NEXT OF KIN, ALL PERSONAL PROPERTY OWNED BY SAID
APPLICANT AT THE TIME OF HIS DEATH, INCLUDING MONEY OR CHOSES IN ACTION
HELD BY HIM AND NOT DISPOSED OF BY WILL  ...  SHALL VEST IN AND BECOME
THE PROPERTY OF THE SAID BOARD OF MANAGERS FOR THE SOLE USE AND BENEFIT
OF THE POST FUND OF SAID HOME  ...  ."  THE CONTRACTUAL NATURE OF THESE
PROVISIONS OF THE 1910 ACT WAS CLEAR AND, INDEED, WE EXPRESSLY
RECOGNIZED THAT FACT WHEN THE QUESTION OF THE VALIDITY OF THE ACT WAS
BROUGHT BEFORE THIS COURT.  (FN7) 

THE 1910 ACT WAS GREATLY AMPLIFIED, HOWEVER, BY THE AMENDMENTS
ADOPTED IN 1941 (FN8) AND THE CENTRAL PROVISION OF THE ACT, QUOTED
ABOVE, WAS SIGNIFICANTLY CHANGED.  SECTION 1 OF THE NEW ACT RESTATES
THIS PROVISION WITHOUT REFERENCE TO THE WORD "CONTRACT," PROVIDING
SIMPLY THAT WHEN A VETERAN DIES "WHILE A MEMBER OR PATIENT IN ANY
FACILITY, OR ANY HOSPITAL WHILE BEING FURNISHED CARE OR TREATMENT," ALL
HIS PERSONAL PROPERTY "NOT DISPOSED OF BY WILL OR OTHERWISE, SHALL
IMMEDIATELY VEST IN AND BECOME THE PROPERTY OF THE UNITED STATES AS
TRUSTEE FOR THE SOLE USE AND BENEFIT OF THE GENERAL POST FUND  ...  ." 
(FN9)  THE ACT THEN GOES ON TO SUPPLEMENT THIS BASIC PROVISION WITH
OTHER PROVISIONS THAT ARE DRAWN IN THE LANGUAGE OF CONTRACT.  BUT THESE
PROVISIONS MUST BE READ IN THE CONTEXT OF SEC. 2 OF THE ACT WHICH
PROVIDES THAT THE DEATH OF A VETERAN IN A VETERANS' HOSPITAL "SHALL
GIVE RISE TO A CONCLUSIVE PRESUMPTION OF A VALID CONTRACT."  (FN10)
READ IN THIS CONTEXT, THE LANGUAGE OF CONTRACT WHICH APPEARS IN THESE
OTHER PROVISIONS OF THE ACT IS NOT AT ALL INCONSISTENT WITH THE
PROVISION FOR AUTOMATIC VESTING WITHOUT A CONTRACT IN SEC. 1.  QUITE
THE CONTRARY, IT SEEMS PLAIN TO US THAT THESE "CONTRACTUAL" PROVISIONS
WERE INCLUDED IN THE ACT FOR THE PURPOSE OF REINFORCING RATHER THAN
DETRACTING FROM THE PROVISIONS OF SEC. 1 - THE THOUGHT APPARENTLY BEING
THAT THERE WAS SOME CHANCE THAT THE ACT WOULD BE ATTACKED AS
UNCONSTITUTIONAL AND THAT IT WOULD CONSEQUENTLY BE ADVISABLE TO INCLUDE
ALTERNATIVE BASES UPON WHICH IT COULD BE UPHELD.  (FN11) 

THIS NATURAL CONSTRUCTION WE GIVE TO SEC. 1 MAKES IT FIT WELL IN THE
PATTERN OF LEGISLATION DEALING WITH THIS SUBJECT.  THE SOLICITUDE OF
CONGRESS FOR VETERANS IS OF LONG STANDING.  (FN12) VETERANS' PENSIONS,
HOMES, HOSPITALS AND OTHER FACILITIES HAVE BEEN SUPPLIED ON AN EVER
INCREASING SCALE.  MANY VETERANS, AS DID THE DECEASED VETERAN HERE,
HAVE HAD TO DEPEND UPON THESE BENEFITS FOR LONG PERIODS OF THEIR
LIVES.  WARPOUSKE, FOR EXAMPLE, APPEARS TO HAVE SPENT MORE THAN TEN
YEARS OF HIS LIFE, AT VARIOUS INTERVALS FROM TIME TO TIME, IN VETERANS'
HOMES AND HOSPITALS THROUGHOUT THE COUNTRY.  THESE WERE THE ONLY HOMES
HE HAD AT THOSE TIMES.  THE CONGRESSIONAL PLAN HERE IS THAT WHATEVER
LITTLE PERSONAL PROPERTY VETERANS WITHOUT WILLS OR KIN HAPPEN TO LEAVE
WHEN THEY DIE IN VETERANS' HOMES AND HOSPITALS SHOULD BE PAID INTO THE
GENERAL POST FUND, TO BE USED FOR THE RECREATION AND PLEASURE OF OTHER
EX-SERVICE MEN AND WOMEN WHO HAVE TO SPEND THEIR DAYS IN VETERANS'
HOMES AND HOSPITALS.  THIS IDEA WAS EXPRESSED BY REPRESENTATIVE
JENNINGS DURING THE DISCUSSION OF THE 1941 ACT ON THE FLOOR OF THE
HOUSE: "AND WOULD IT NOT BE MUCH BETTER TO LET THAT MONEY GO INTO A
FUND THAT WOULD INURE TO THE BENEFIT OF OTHER VETERANS THAN TO LET  ...
IT GO INTO A FUND UNDER THE ESCHEAT LAWS OF A STATE?"  (FN13) 

HAVING CONCLUDED THAT THE PROVISIONS OF SEC. 1 ARE CLEAR AND
UNEQUIVOCAL ON THEIR FACE, WE FIND NO NEED TO RESORT TO THE LEGISLATIVE
HISTORY OF THE ACT.  (FN14)  SINCE THE STATE HAS PLACED SUCH HEAVY
RELIANCE UPON THAT HISTORY, HOWEVER, WE DO DEEM IT APPROPRIATE TO POINT
OUT THAT THIS HISTORY IS AT BEST INCONCLUSIVE.  IT IS TRUE, AS THE
STATE POINTS OUT, THAT REPRESENTATIVE RANKIN, AS CHAIRMAN OF THE
COMMITTEE HANDLING THE BILL ON THE FLOOR OF THE HOUSE, EXPRESSED HIS
VIEW DURING THE COURSE OF DISCUSSION OF THE BILL ON THE FLOOR THAT THE
1941 ACT WOULD NOT APPLY TO INSANE VETERANS INCOMPETENT TO MAKE VALID
CONTRACTS.  (FN15)  BUT SUCH STATEMENTS, EVEN WHEN THEY STAND ALONE,
HAVE NEVER BEEN REGARDED AS SUFFICIENTLY COMPELLING TO JUSTIFY
DEVIATION FROM THE PLAIN LANGUAGE OF A STATUTE.  THEY ARE EVEN LESS SO
HERE FOR THERE IS POWERFUL COUNTERVAILING EVIDENCE AS TO THE INTENTION
OF THOSE WHO DRAFTED THE BILL.  THE BILL WAS DRAWN UP AND SENT TO THE
SPEAKER OF THE HOUSE, IN THE VERY FORM IN WHICH IT WAS PASSED, BY THE
VETERANS' BUREAU ITSELF.  (FN16)  AND THAT BUREAU, WE ARE TOLD, HAS
CONSISTENTLY INTERPRETED THE 1941 ACT AS MAKING THE SANITY OR INSANITY
OF A VETERAN WHO DIES IN A VETERANS' HOSPITAL ENTIRELY IRRELEVANT TO
THE DETERMINATION OF THE GOVERNMENT'S RIGHTS UNDER THE ACT. 

WE SEE NO MERIT IN THE CHALLENGE TO THE CONSTITUTIONALITY OF SEC. 1
AS CONSTRUED IN THIS NATURAL MANNER.  CONGRESS UNDOUBTEDLY HAS THE
POWER - UNDER ITS CONSTITUTIONAL POWERS TO RAISE ARMIES AND NAVIES AND
TO CONDUCT WARS - TO PAY PENSIONS, AND TO BUILD HOSPITALS AND HOMES FOR
VETERANS.  WE THINK IT PLAIN THAT THE SAME SOURCES OF POWER AUTHORIZE
CONGRESS TO REQUIRE THAT THE PERSONAL PROPERTY LEFT BY ITS WARDS WHEN
THEY DIE IN GOVERNMENT FACILITIES SHALL BE DEVOTED TO THE COMFORT AND
RECREATION OF OTHER EX-SERVICE PEOPLE WHO MUST DEPEND UPON THE
GOVERNMENT FOR CARE.  THE FACT THAT THIS LAW PERTAINS TO THE DEVOLUTION
OF PROPERTY DOES NOT RENDER IT INVALID.  (FN17)  ALTHOUGH IT IS TRUE
THAT THIS IS AN AREA NORMALLY LEFT TO THE STATES, IT IS NOT IMMUNE
UNDER THE TENTH AMENDMENT FROM LAWS PASSED BY THE FEDERAL GOVERNMENT
WHICH ARE, AS IS THE LAW HERE, NECESSARY AND PROPER TO THE EXERCISE OF
A DELEGATED POWER.  (FN18) 

THE JUDGMENT OF THE OREGON SUPREME COURT IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  ORE.  REV.  STAT., SEC. 120.010, PROVIDES:  "IMMEDIATELY UPON
THE DEATH OF ANY PERSON WHO DIES INTESTATE WITHOUT HEIRS, LEAVING ANY
REAL, PERSONAL OR MIXED PROPERTY, INTEREST OR ESTATE IN THIS STATE, THE
SAME ESCHEATS TO AND VESTS IN THE STATE, SUBJECT ONLY TO THE CLAIMS OF
THE CREDITORS AND AS PROVIDED IN ORS 120.060 TO 120.130; AND THE CLEAR
PROCEEDS DERIVED THEREFROM SHALL BE PAID INTO AND BECOME A PART OF THE
COMMON SCHOOL FUND OF THIS STATE AND BE LOANED OR INVESTED BY THE STATE
LAND BOARD, AS PROVIDED BY LAW." 

FN2  38 U.S.C. (1952 ED.)  SEC.  17. 

FN3  222 ORE.  40, 352 P.2D 539. 

FN4  THE CONFLICT ALLEGED IS WITH THE DECISIONS IN SKRIZISZOUSKI
ESTATE, 382 PA.  634, 116 A.2D 841; AND IN RE GONSKY'S ESTATE, 79 N.D.
123, 55 N.W.2D 60. 

FN5  364 U.S. 877. 

FN6  36 STAT. 703, 736. 

FN7  "IN PASSING THE ACT OF JUNE, 1910, CONGRESS MERELY DIRECTED THE
TERMS AND CONDITIONS UNDER WHICH VETERANS, CONSISTENTLY WITH STATE LAW,
CAN OBTAIN ADMITTANCE TO HOMES BUILT, MAINTAINED AND OPERATED BY THE
GOVERNMENT FOR THE BENEFIT OF VETERANS.  HOMES FOR THE AGED, NEEDY, OR
INFIRM, IN RETURN FOR THE BENEFITS BESTOWED BY THEM, GENERALLY RECEIVE
SOME BENEFIT FROM ANY PROPERTY OR ESTATES OF THEIR MEMBERS."  UNITED
STATES V. STEVENS, 302 U.S. 623, 627. 

FN8  55 STAT. 868, 38 U.S.C. (1952 ED.)  SEC.  17 ET SEQ. 

FN9  38 U.S.C. (1952 ED.)  SEC.  17. 

FN10  38 U.S.C. (1952 ED.)  SEC.  17A. 

FN11  THESE FEARS DOUBTLESS AROSE, IN PART AT LEAST, FROM THE FACT
THAT THE CIRCUIT COURT OF APPEALS HAD, IN THE STEVENS CASE, SUPRA,
DECLARED EVEN THE MILDER PROVISIONS OF THE 1910 ACT UNCONSTITUTIONAL
UNDER THE TENTH AMENDMENT, STEVENS V. UNITED STATES, 89 F.2D 151, A
HOLDING UNTIMATELY REVERSED BY THIS COURT. 

FN12  SEE THE BRIEF HISTORY OF LEGISLATION PERTAINING TO VETERANS'
BENEFITS, 38 U.S.C.A. 1. 

FN13  87  CONG. REC. 5203-5204. 

FN14 CF. UNITED STATES V. BOWEN, 100 U.S. 508, 513-514; NATIONAL HOME
V. WOOD, 299 U.S. 211, 216. 

FN15  87 CONG. REC. 5203. 

FN16  SEE H.R. REP. NO. 609, 77TH CONG., 1ST SESS., PP. 1-2. 

FN17  SEE, E.G., KOLOVRAT V. OREGON, ANTE, P. 187.  THIS WAS ALSO
IMPLICIT IN THE HOLDING IN UNITED STATES V. STEVENS, 302 U.S. 623.  SEE
N. 11, SUPRA.  CF. HINES V. LOWREY, 305 U.S. 85, IN WHICH THIS COURT
REJECTED THE CONTENTION THAT THE FEDERAL CONSTITUTION DOES NOT CONFER
ANY AUTHORITY UPON CONGRESS TO DEAL WITH MENTAL INCOMPETENTS. 

FN18  SEE, E.G., CASE V. BOWLES, 327 U.S. 92; OKLAHOMA V. ATKINSON
CO., 313 U.S. 508; UNITED STATES V. DARBY, 312 U.S. 100. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE WHITTAKER CONCURS,
DISSENTING. 

I DO NOT SEE HOW THIS DECEDENT'S ESTATE CAN CONSTITUTIONALLY PASS TO
THE UNITED STATES.  THE SUCCESSION OF REAL AND PERSONAL PROPERTY IS
TRADITIONALLY A STATE MATTER UNDER OUR FEDERAL SYSTEM.  MAGER V. GRIMA,
8 HOW.  490, 493-494.  THAT TRADITION CONTINUES.  UNITED STATES V.
BURNISON, 339 U.S. 87, 91-92; CLARK V. ALLEN, 331 U.S. 503, 517; IRVING
TRUST CO. V. DAY, 314 U.S. 556, 562; LYETH V. HOEY, 305 U.S. 188, 193. 
AN INDIVIDUAL CAN CONTRACT AWAY HIS ASSETS - MAKING THE UNITED STATES
THE PROMISEE - AND THE CONTRACT WILL BE ENFORCED, PROVIDED IT IS VALID
UNDER STATE LAW.  UNITED STATES V. STEVENS, 302 U.S. 623, 627.  IT MAY
BE THAT AN ACTION IN QUANTUM MERUIT WOULD LIE AGAINST THE ESTATE OF A
PERSON WHO, THOUGH UTTERLY INCOMPETENT AS ADAM B. WARPOUSKE CONCEDEDLY
WAS, RECEIVED TREATMENT AT A FEDERAL HOSPITAL.  (FN1)  IT MAY BE THAT
THE UNITED STATES COULD APPROPRIATE ALL UNEXPENDED FUNDS FROM FEDERAL
PENSIONS OR FEDERAL INSURANCE POLICIES IN EXCHANGE FOR THE SERVICES
RENDERED AN INCOMPETENT.  SEE UNITED STATES V. HALL, 98 U.S. 343;
WISSNER V. WISSNER, 338 U.S. 655; CF. MILLER MUSIC CORP. V. DANIELS,
INC., 362 U.S. 373.  THE POWER OF CONGRESS TO LEGISLATE CONCERNING THE
CLAIMS OF ALL VETERANS, WHETHER COMPETENT OR INCOMPETENT, IS WELL
SETTLED.  HINES V. LOWREY, 305 U.S. 85.    WE DEAL HERE, HOWEVER, WITH
AN INHERITANCE THAT THE INCOMPETENT VETERAN RECEIVED FROM HIS BROTHER -
AN ESTATE WORTH ABOUT $13,000.  HOW CONGRESS CAN PROVIDE FOR THAT SUM
TO PASS TO THE UNITED STATES IS DIFFICULT TO UNDERSTAND.  OREGON HAS
PROVIDED HOW THE PROPERTY OF ONE WHO DIES INTESTATE AND WITHOUT HEIRS
SHALL BE DISTRIBUTED; (FN2) AND THAT IS ITS CONSTITUTIONAL RIGHT UNDER
THE TENTH AMENDMENT.  NEVER BEFORE, I BELIEVE, HAS A FEDERAL LAW
GOVERNING THE PROPERTY OF ONE DYING INTESTATE BEEN ALLOWED TO OVERRIDE
A STATE LAW.  SOME STATE INHERITANCE LAWS ARE AFFECTED BY FEDERAL
POLICY, AS WE RECENTLY HELD IN KOLOVRAT V. OREGON, ANTE, P. 187.  THUS
WHERE A TREATY MADE BY THE UNITED STATES WITH ANOTHER NATION PROVIDES
FOR RECIPROCAL INHERITANCE RIGHTS BY THE NATIONALS OF THE TWO
COUNTRIES, A STATE CANNOT PROVIDE OTHERWISE.  IF IT COULD, ONE STATE
WOULD INDEED BE REVISING THE FOREIGN POLICY THAT THE FEDERAL GOVERNMENT
MAKES.  IN THE CONTEXT OF THE FOURTEENTH AMENDMENT, THE RIGHTS OF A
STATE TO PROVIDE RULES GOVERNING INHERITANCE MAY ALSO BE COMPELLED TO
BOW TO FEDERAL POLICY.  SEE R.S. SEC. 1978, 42 U.S.C. SEC. 1982. 

YET THE SUPREMACY CLAUSE IS NOT WITHOUT LIMITS.  FOR A FEDERAL LAW TO
HAVE SUPREMACY IT MUST BE MADE "IN PURSUANCE" OF THE CONSTITUTION.  THE
COURT, OF COURSE, RECOGNIZES THIS; AND IT JUSTIFIES THIS FEDERAL LAW
GOVERNING DEVOLUTION OF PROPERTY UNDER THE NECESSARY AND PROPER CLAUSE
OF ART. I, SEC. 8. 

THE POWER TO BUILD HOSPITALS AND HOMES FOR VETERANS AND TO PAY THEM
PENSIONS IS PLAINLY NECESSARY AND PROPER TO THE POWERS TO RAISE AND
SUPPORT ARMIES AND NAVIES AND TO CONDUCT WARS.  THE POWER TO PROVIDE
FOR THE ADMINISTRATION OF THE ESTATES OF VETERANS (WHICH ARE NOT MADE
UP OF FEDERAL FUNDS OWING THE VETERANS) IS TO ME A FAR CRY FROM ANY
SUCH POWER.  BUT THE PRESENT ACT IS OF THAT CHARACTER. 

THIS FEDERAL LAW GOVERNING ESTATES OF VETERANS IS PHRASED IN THE
LANGUAGE OF CONTRACT.  IT IS DESIGNED TO DRAW INTO THE FEDERAL TREASURY
ALL ESTATES OF THE KIND MENTIONED, WHETHER THEY BE WORTH SIX CENTS OR A
MILLION DOLLARS.  THE FEDERAL CLAIM IS NOT FOR SERVICES RENDERED, AS NO
EFFORT IS MADE TO RESTRICT THE AMOUNT OF THE FEDERAL CLAIM TO BENEFITS
RECEIVED.  THE ACT PLAINLY IS A FEDERAL SUCCESSION LAW. 

THE ACT UNDER WHICH THE UNITED STATES PURPORTS TO ACT IS NOW FOUND IN
38 U.S.C.  SECS. 5220-5228.  IN ITS PRESENT FORM, IT CAME INTO THE LAW
IN 1941.  ACT OF DEC. 26, 1941, 55 STAT. 868.  SECTION 1 REGULATES THE
DISPOSITION OF THE PROPERTY OF ANY VETERAN WHO DIES WHILE IN A
VETERANS' HOSPITAL AND WHO LEAVES PERSONAL PROPERTY NOT DISPOSED OF BY
WILL AND TO WHICH NO SURVIVING SPOUSE, NEXT OF KIN OR HEIRS ARE
ENTITLED UNDER THE LAWS OF HIS DOMICILE.  SUCH PROPERTY, THE ACT SAYS,
"SHALL IMMEDIATELY VEST IN AND BECOME THE PROPERTY OF THE UNITED
STATES."  SEC. 1.  THE ACCEPTANCE OF CARE OR TREATMENT AT A VETERANS'
HOSPITAL IS BY THE TERMS OF THE ACT ACCEPTANCE OF THE PROVISIONS OF THE
ACT, AND HAS "THE EFFECT OF AN ASSIGNMENT" OF THE PROPERTY EFFECTIVE AT
DEATH.  SEC. 1.  THE FACT OF DEATH IN A VETERANS' HOSPITAL OF A VETERAN
"LEAVING NO SPOUSE, NEXT OF KIN, OR HEIRS" GIVES RISE "TO A CONCLUSIVE
PRESUMPTION" OF A VALID CONTRACT FOR THE DISPOSITION OF THE PROPERTY IN
THAT WAY TO THE UNITED STATES.  SEC. 2.  MOREOVER, THE VETERANS'
ADMINISTRATION IS AUTHORIZED TO ADMINISTER THE ESTATE, PAYING
CREDITORS' CLAIMS, IF PRESENTED WITHIN DESIGNATED TIMES, AND GRANTING
THEM THE PREFERENCE AND PRIORITIES PRESCRIBED BY LOCAL LAW.  SEC. 4. 

WE KNOW THAT, WHILE THE ACT IS BASED ON "A CONCLUSIVE PRESUMPTION"
THAT A CONTRACT TO ASSIGN THE PROPERTY TO THE UNITED STATES WAS MADE,
THERE WAS IN FACT NO CONTRACT IN THIS CASE.  DURING THE PERIOD OF
WARPOUSKE'S HOSPITALIZATION - FROM MARCH 1, 1956, TO MARCH 19, 1956,
THE DAY OF HIS DEATH - HE WAS EITHER COMATOSE OR SEMICOMATOSE.  (FN3)
WE DEAL WITH A PRESUMPTION THAT IS CONTRARY TO THE FACT (CF. TOT V.
UNITED STATES, 319 U.S. 463).  WE HAVE THEN A CASE INVOLVING THE POWER
OF CONGRESS TO PROVIDE FOR THE ADMINISTRATION OF THE ESTATE OF A
DECEASED VETERAN WHERE HE HAS IN FACT MADE NO ASSIGNMENT OF IT TO THE
FEDERAL GOVERNMENT.  TO WHAT POWER IS THAT NECESSARY AND PROPER? 

ONLY RECENTLY WE WARNED AGAINST AN EXPANSIVE CONSTRUCTION OF THE
NECESSARY AND PROPER CLAUSE.  WE STATED THAT IT IS "NOT ITSELF A GRANT
OF POWER, BUT A CAVEAT THAT THE CONGRESS POSSESSES ALL THE MEANS
NECESSARY TO CARRY OUT" THE POWERS SPECIFICALLY GRANTED.  KINSELLA V.
SINGLETON, 361 U.S. 234, 247.  POWERS NOT GIVEN "WERE RESERVED," AS
MADISON SAID.  VI WRITINGS OF JAMES MADISON (HUNT ED.)  390.  AND "NO
POWERS WERE GIVEN BEYOND THOSE ENUMERATED IN THE CONSTITUTION, AND SUCH
AS WERE FAIRLY INCIDENT TO THEM."  IBID. 

VETERANS OR ANYONE ELSE MAY MAKE THE UNITED STATES A BENEFICIARY OF
THEIR ESTATE, ABSENT A STATE LAW THAT PRECLUDES IT.  SEE UNITED STATES
V. BURNISON, SUPRA.  BUT IF IT IS "FAIRLY INCIDENT" TO RAISING AND
SUPPORTING ARMIES AND NAVIES AND CONDUCTING WARS FOR THE UNITED STATES
TO TAKE OVER THE ADMINISTRATION OF THE PERSONAL PROPERTY OF VETERANS
WHO DIE INTESTATE, I SEE NO REASON WHY CONGRESS CANNOT TAKE OVER THEIR
REAL ESTATE TOO.  I SEE NO REASON WHY, IF THE UNITED STATES CAN GO AS
FAR AS WE ALLOW IT TO GO TODAY, IT CANNOT SUPERSEDE ANY WILL A VETERAN
MAKES AND THUS BETTER PROVIDE FOR THE COMFORT, CARE, AND RECREATION OF
OTHER EX-SERVICE MEN AND WOMEN WHO ARE DEPENDENT ON THE UNITED STATES
FOR CARE.  AND THE MORE MONEY THE FEDERAL GOVERNMENT COLLECTS FOR
VETERANS THE BETTER THE CARE THEY WILL RECEIVE.  NO GREATER COLLISION
WITH STATE LAW WOULD BE PRESENT WHERE CONGRESS TOOK REALTY OR DISPLACED
AN ENTIRE WILL THAN HERE.  OREGON'S LAW PROVIDING FOR ESCHEAT IS AS
EXPLICIT AS HER LAW PROVIDING FOR THE ADMINISTRATION OF THE ESTATES OF
DECEASED PEOPLE.  IF A CONTRACT BETWEEN THE UNITED STATES AND AN
UTTERLY INCOMPETENT PERSON CAN BE CONCLUSIVELY PRESUMED TO EXIST WHEN
THE INCOMPETENT DIES INTESTATE, IT CAN BE WHERE HE LEAVES A WILL.  IF
IT CAN BE CONCLUSIVELY PRESUMED IN CASE OF A VETERAN, IT CAN BE
CONCLUSIVELY PRESUMED IN CASE OF ANY FEDERAL EMPLOYEE, IN CASE OF ANY
FEDERAL OFFICEHOLDER, IN CASE OF ANY FEDERAL PENSIONER.  OF COURSE
CONGRESS CANNOT BE EXPECTED TO USE THIS VAST NEW POWER TO THE EXTREME. 
BUT WE - UNLIKE ENGLAND - LIVE UNDER A WRITTEN CONSTITUTION THAT LIMITS
POWERS, NOT ENTRUSTING THE CONSTITUTION TO THE CONSCIENCE OF THE
LEGISLATIVE BODY. 

THE TENTH AMENDMENT DOES NOT, OF COURSE, DILUTE ANY POWER DELEGATED
TO THE NATIONAL GOVERNMENT.  THAT IS ONE FACE OF THE TRUISM THAT RUNS
THROUGH OUR DECISIONS.  UNITED STATES V. DARBY, 312 U.S. 100, 124;
OKLAHOMA V. ATKINSON CO., 313 U.S. 508, 534; CASE V. BOWLES, 327 U.S.
92, 101.  BUT WHEN THE FEDERAL GOVERNMENT ENTERS A FIELD AS
HISTORICALLY LOCAL AS THE ADMINISTRATION OF DECEDENTS' ESTATES, SOME
CLEAR RELATION OF THE ASSERTED POWER TO ONE OF THE DELEGATED POWERS
SHOULD BE SHOWN.  AT TIMES THE EXERCISE OF A DELEGATED POWER REACHES
DEEP INTO LOCAL PROBLEMS.  WICKARD V. FILBURN, 317 U.S. 111, ALLOWED
THE COMMERCE POWER TO EXTEND TO HOME-GROWN AND HOME-USED WHEAT, BECAUSE
TOTAL CONTROL WAS ESSENTIAL FOR EFFECTIVE CONTROL OF THE INTERSTATE
WHEAT MARKET.  BUT THERE IS NO SEMBLANCE OF LIKENESS HERE.  THE NEED OF
THE GOVERNMENT TO ENTER UPON THE ADMINISTRATION OF VETERANS' ESTATES -
MADE UP OF FUNDS NOT OWING FROM THE UNITED STATES - IS NO CRUCIAL PHASE
OF THE ABILITY OF THE UNITED STATES TO CARE FOR EX-SERVICE MEN AND
WOMEN OR TO MANAGE FEDERAL FISCAL AFFAIRS. 

TODAY'S DECISION DOES NOT SQUARE WITH OUR CONCEPTION OF FEDERALISM. 
THERE IS NOTHING MORE DEEPLY IMBEDDED IN THE TENTH AMENDMENT, AS I READ
HISTORY, THAN THE DISPOSITION OF THE ESTATES OF DECEASED PEOPLE.  I DO
NOT SEE HOW A SCHEME FOR ADMINISTRATION OF DECEDENTS' ESTATES OF THE
KIND WE HAVE HERE CAN POSSIBLY BE NECESSARY AND PROPER TO ANY POWER
DELEGATED TO CONGRESS. 

RAISING MONEY BY BORROWING OR BY TAXING ARE EXPLICITLY PROVIDED FOR
IN ART. I, SEC. 8.  RAISING MONEY BY APPROPRIATING ASSETS OF THOSE WHO
HAVE A RELATIONSHIP WITH THE FEDERAL GOVERNMENT (AS MOST PEOPLE DO
TODAY) IS NOT AMONG THE ENUMERATED POWERS.  AT BOTTOM OF THE PRESENT
STATUTE, AS THE COURT POINTS OUT, IS A DESIRE TO MAKE THOSE WHO USE A
VETERANS' HOSPITAL HELP FINANCE ITS OPERATIONS.  (FN4)  CONGRESS CAN
SET RATES FOR SERVICES RENDERED; IT CAN OBTAIN FROM PATIENTS
ASSIGNMENTS OF ASSETS TO THE UNITED STATES; IT CAN INDUCE AND ENCOURAGE
PEOPLE TO MAKE THESE HOSPITALS BENEFICIARIES UNDER THEIR WILLS.  BUT I
DO NOT SEE HOW IT IS POSSIBLE FOR THE UNITED STATES TO TAKE A MAN'S
PROPERTY WITHOUT HIS CONSENT WHEN THE UNITED STATES IS NOT A CREDITOR
IN THE ACCEPTED SENSE.   THE ONLY CONSTITUTIONAL WAY IN WHICH THAT CAN
BE DONE IS BY TAXATION OR BY CONDEMNATION.  THIS LAW AS APPLIED IS
INDEED A LEVY THAT HAS NO SUPPORT IN THE CONSTITUTION; AND IT MAKES A
SERIOUS INROAD ON THE TENTH AMENDMENT.  WITH ALL DEFERENCE, I DISSENT. 

FN1  SEE RESTITUTION, RESTATEMENT OF THE LAW, AM. L. INST.  (1937),
SEC. 114; 5 CORBIN ON CONTRACTS (1951) SEC. 1109. 

FN2  ORE.  REV.  STAT. 120.010 PROVIDES: 

"IMMEDIATELY UPON THE DEATH OF ANY PERSON WHO DIES INTESTATE WITHOUT
HEIRS, LEAVING ANY REAL, PERSONAL OR MIXED PROPERTY, INTEREST OR ESTATE
IN THIS STATE, THE SAME ESCHEATS TO AND VESTS IN THE STATE, SUBJECT
ONLY TO THE CLAIMS OF THE CREDITORS AND AS PROVIDED IN ORS 120.060 TO
120.130; AND THE CLEAR PROCEEDS DERIVED THEREFROM SHALL BE PAID INTO
AND BECOME A PART OF THE COMMON SCHOOL FUND OF THIS STATE AND BE LOANED
OR INVESTED BY THE STATE LAND BOARD, AS PROVIDED BY LAW." 

FN3  ADAM WARPOUSKE SPENT A LARGE PART OF HIS LIFE IN VETERANS'
HOSPITALS, ESPECIALLY DURING THE YEARS FROM 1930 TO 1945.  (THE RECORD
ALSO SHOWS THAT HE RECEIVED CARE IN THE FACILITIES OF VARIOUS STATES.) 
BUT THE CLAIM TO ADMINISTER HIS PERSONAL PROPERTY ARISES SOLELY FROM
"THE FACT OF DEATH" IN A VETERANS' HOSPITAL. 

FN4  THE INSPIRATION FOR THIS LAW, AS SEEN FROM THE LEGISLATIVE
HISTORY (H.R. REP. NO. 609, 77TH CONG., 1ST SESS.; S. REP. NO. 900,
77TH CONG., 1ST SESS.), WAS THE VETERANS' ADMINISTRATION, A FACT WHICH
PERHAPS MAKES RELEVANT THE FOLLOWING OBSERVATION:  "POLITICIANS AND
TAXPAYERS HAVE ASSUMED (WITH OCCASIONAL PHASES OF DOUBT) THAT A RISING
TOTAL IN THE NUMBER OF CIVIL SERVANTS MUST REFLECT A GROWING VOLUME OF
WORK TO BE DONE.  CYNICS, IN QUESTIONING THIS BELIEF, HAVE IMAGINED
THAT THE MULTIPLICATION OF OFFICIALS MUST HAVE LEFT SOME OF THEM IDLE
OR ALL OF THEM ABLE TO WORK FOR SHORTER HOURS.  BUT THIS IS A MATTER IN
WHICH FAITH AND DOUBT SEEM EQUALLY MISPLACED.  THE FACT IS THAT THE
NUMBER OF THE OFFICIALS AND THE QUANTITY OF THE WORK ARE NOT RELATED TO
EACH OTHER AT ALL.  THE RISE IN THE TOTAL OF THOSE EMPLOYED IS GOVERNED
BY PARKINSON'S LAW AND WOULD BE MUCH THE SAME WHETHER THE VOLUME OF THE
WORK WERE TO INCREASE, DIMINISH, OR EVEN DISAPPEAR.  THE IMPORTANCE OF
PARKINSON'S LAW LIES IN THE FACT THAT IT IS A LAW OF GROWTH BASED UPON
AN ANALYSIS OF THE FACTORS BY WHICH THAT GROWTH IS CONTROLLED." 
PARKINSON, PARKINSON'S LAW (1957), PP. 3-4. 
..END :











PAN AMERICAN PETROLEUM CORP. V. SUPERIOR COURT OF DELAWARE FOR NEW
CASTLE COUNTY 366 U.S. 656 


NO. 80.  ARGUED APRIL 18-19, 1961 - DECIDED MAY 29, 1961* - 52 DEL. - ,
158 A.2D 478, AFFIRMED. 

*TOGETHER WITH NO. 81, TEXACO, INC., V. SUPERIOR COURT OF DELAWARE
FOR NEW CASTLE COUNTY ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


AFTER THIS COURT'S DECISION IN PHILLIPS PETROLEUM CO. V. WISCONSIN,
347 U.S. 672, HOLDING THAT THE JURISDICTION OF THE FEDERAL POWER
COMMISSION EXTENDED TO "THE RATES OF ALL WHOLESALES OF NATURAL GAS IN
INTERSTATE COMMERCE, WHETHER BY A PIPELINE COMPANY OR NOT AND WHETHER
OCCURRING BEFORE, DURING, OR AFTER TRANSMISSION BY AN INTERSTATE
PIPELINE COMPANY," AND ITS DECISION INVALIDATING AN ORDER OF THE KANSAS
CORPORATION COMMISSION FIXING A MINIMUM PRICE FOR GAS TAKEN FROM THE
KANSAS HUGOTON FIELD, CITIES SERVICE GAS CO. V. STATE CORPORATION
COMM'N, 355 U.S. 391, AN INTERSTATE NATURAL GAS PIPELINE COMPANY SUED
PRODUCERS OF GAS FROM THAT FIELD IN A DELAWARE STATE COURT TO RECOVER
FOR OVERPAYMENTS FOR SUCH GAS MADE UNDER COMPULSION OF THE KANSAS
ORDER, SUCH REFUNDS HAVING BEEN AGREED UPON BETWEEN THE PARTIES SHORTLY
AFTER ENTRY OF THE KANSAS ORDER.  THE PRODUCERS PETITIONED THE SUPREME
COURT OF DELAWARE FOR WRITS OR PROHIBITION ATTACKING THE JURISDICTION
OF THE TRIAL COURT IN WHICH THE SUITS WERE PENDING.  THE STATE SUPREME
COURT SUSTAINED THE JURISDICTION OF THE TRIAL COURT AND DENIED THE
WRITS.  HELD:  NOTWITHSTANDING PROVISIONS OF THE NATURAL GAS ACT GIVING
FEDERAL DISTRICT COURTS EXCLUSIVE JURISDICTION OF ALL SUITS TO ENFORCE
LIABILITIES CREATED BY THAT ACT AND LODGING IN FEDERAL COURTS OF
APPEALS JURISDICTION TO REVIEW ORDERS OF THE FEDERAL POWER COMMISSION,
THE STATE COURT HAD JURISDICTION, SINCE THE SUITS WERE NOT FOUNDED UPON
THE ACT BUT UPON CONTRACT AND RESTITUTION CLAIMS UNDER STATE LAW.  PP.
657-666. 

PAN AMERICAN PETROLEUM CORP. V. SUPERIOR COURT OF DELAWARE FOR NEW
CASTLE COUNTY ET AL. 

CERTIORARI TO THE SUPREME COURT OF DELAWARE. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS FOR REVIEW THE JUDGMENT OF THE SUPREME COURT OF
DELAWARE DENYING A PETITION FOR A WRIT OF PROHIBITION TO PREVENT
FURTHER PROCEEDINGS BEFORE THE SUPERIOR COURT OF THE STATE OF DELAWARE,
IN AND FOR NEW CASTLE COUNTY, IN ACTIONS BY CITIES SERVICE GAS COMPANY
AGAINST PETITIONERS INVOLVING CONTRACTS FOR THE SALE OF NATURAL GAS BY
PETITIONERS TO CITIES SERVICE.  THE CLAIM OF PETITIONERS IS THAT THE
NATURAL GAS ACT, 52 STAT. 821, AS AMENDED, 15 U.S.C. SEC. 717 ET SEQ.,
HAS DEPRIVED STATE COURTS OF JURISDICTION OVER THE SUBJECT MATTER OF
THESE CASES.  THE SOLE QUESTION, BOTH BELOW AND HERE, IS WHETHER THE
STATE COURTS HAD JURISDICTION.  (FN1)  THE IMPORTANCE OF THE PROBLEMS
THEREBY RAISED JUSTIFIED THEIR DISPOSITION HERE, SO WE GRANTED THE
PETITION FOR CERTIORARI.  363 U.S. 818. 

CITIES SERVICE IS A NATURAL GAS PIPELINE COMPANY.  PETITIONERS ARE
PRODUCERS OF NATURAL GAS.  CITIES SERVICE PURCHASES NATURAL GAS FROM
PETITIONERS AND TRANSPORTS IT THROUGH ITS PIPELINES, IN INTERSTATE
COMMERCE, FOR SALE TO LOCAL DISTRIBUTING COMPANIES.  DURING THE PERIOD
1949 - 1951 CITIES SERVICE ENTERED INTO CONTRACTS FOR THE PURCHASE OF
NATURAL GAS PRODUCED BY PETITIONERS FROM THE HUGOTON FIELD IN KANSAS. 
IN EACH INSTANCE THE PRICE AGREED UPON WAS LESS THAN ELEVEN CENTS PER
THOUSAND CUBIC FEET (MCF) MEASURED ON A PRESSURE BASE OF 14.65 POUNDS
PER SQUARE INCH ABSOLUTE (PSIA). 

ON DECEMBER 2, 1953, THE CORPORATION COMMISSION OF THE STATE OF
KANSAS PROMULGATED AN ORDER, TO TAKE EFFECT ON JANUARY 1, 1954, FIXING
A MINIMUM PRICE OF ELEVEN CENTS PER MCF ON A PRESSURE BASE OF 14.65
PSIA FOR GAS TAKEN FROM THE KANSAS HUGOTON FIELD.  THE EFFECT OF THIS
ORDER WAS TO REQUIRE CITIES SERVICE TO PAY PETITIONERS AT A HIGHER RATE
THAN THOSE SPECIFIED IN THE PRE-EXISTING CONTRACTS.  CITIES SERVICE
BROUGHT SUIT IN THE KANSAS COURTS TO OBTAIN JUDICIAL REVIEW OF THE
ORDER. 

ON JANUARY 21, 1954, CITIES SERVICE ADVISED EACH OF THE PETITIONERS
BY LETTER OF THE KANSAS MINIMUM-RATE ORDER AND OF ITS SUIT FOR JUDICIAL
REVIEW OF THAT ORDER, ADDING THE FOLLOWING: 

"PENDING FINAL JUDICIAL DETERMINATION OF THE SAID ORDER AND BEGINNING
JANUARY 1, 1954, CITIES SERVICE GAS COMPANY INTENDS TO PAY FOR ALL GAS
PURCHASED BY IT IN THE KANSAS HUGOTON FIELD IN STRICT COMPLIANCE WITH
THE TERMS AND CONDITIONS OF THE SAID ORDER.  SUCH COMPLIANCE WITH SAID
ORDER BY THIS COMPANY, HOWEVER, IS MADE TO AVOID THE PENALTIES AND
ACTIONS PROVIDED BY THE KANSAS STATUTES FOR A VIOLATION THEREOF, AND
THE PAYMENTS MADE TO YOU IN COMPLIANCE WITH SAID ORDER PENDING ITS
FINAL JUDICIAL DETERMINATION ARE TO BE CONSIDERED AND ACCEPTED BY YOU
AS INVOLUNTARY PAYMENTS ON OUR PART, WITHOUT PREJUDICE TO OUR RIGHTS IN
SAID LITIGATION, AND IN NO EVENT AS AN ACQUIESCENCE BY US IN THE
VALIDITY OF SAID ORDER. 

"IN THE EVENT THE SAID ORDER IS FINALLY JUDICIALLY MODIFIED OR
DECLARED TO BE INVALID IN WHOLE OR IN PART, AS A RESULT OF WHICH YOU
HAVE BEEN OVERPAID FOR GAS PURCHASED DURING THE INTERIM AFORESAID,
CITIES SERVICE GAS COMPANY WILL EXPECT YOU TO REFUND TO IT THE AMOUNT
OF SAID OVERPAYMENT." 

THEREAFTER, EACH VOUCHER CHECK SENT BY CITIES SERVICE TO PETITIONERS
IN PAYMENT FOR GAS PURCHASED BORE A NOTATION STATING THAT IT WAS
TENDERED "SUBJECT TO PROVISIONS" OF THE JANUARY 21, 1954, LETTER. 
PETITIONERS CASHED THESE CHECKS WITHOUT OBJECTION TO THE CONDITIONS OF
THEIR TENDER.  PETITIONER PAN AMERICAN PETROLEUM CORPORATION (FORMERLY
STANOLIND) WROTE IN REPLY TO THE CITIES SERVICE LETTER OF JANUARY 21: 

"WE CONSTRUE THE LAST PARAGRAPH OF SAID LETTER TO MEAN THAT CITIES
WILL EXPECT STANOLIND TO REFUND TO IT THE AMOUNT OF OVER-PAYMENTS, IF
ANY, WITHOUT ANY INTEREST THEREON SHOULD THE SAID ORDER OF DECEMBER 2,
1953 BE FINALLY JUDICIALLY MODIFIED OR DECLARED TO BE INVALID IN WHOLE
OR IN PART BY AN ADJUDICATION WHICH WOULD BE BINDING AND CONTROLLING ON
STANOLIND.  WE WILL, THEREFORE, ACCEPT PAYMENTS ON THIS BASIS." 

PETITIONER TEXACO, INC., ACKNOWLEDGED RECEIPT OF CITIES SERVICE'S
PAYMENT OF FEBRUARY 25, 1954, BY A LETTER DATED MARCH 2, 1954, WITHOUT
OBJECTION TO THE CONDITIONS OF PAYMENT. 

ON JUNE 7, 1954, THIS COURT, IN PHILLIPS PETROLEUM CO. V. WISCONSIN,
347 U.S. 672, HELD THAT THE JURISDICTION OF THE FEDERAL POWER
COMMISSION EXTENDED TO "THE RATES OF ALL WHOLESALES OF NATURAL GAS IN
INTERSTATE COMMERCE, WHETHER BY A PIPELINE COMPANY OR NOT AND WHETHER
OCCURRING BEFORE, DURING, OR AFTER TRANSMISSION BY AN INTERSTATE
PIPELINE COMPANY."  347 U.S., AT 682.  FOLLOWING THE PHILLIPS DECISION,
THE COMMISSION, IN ACCORDANCE WITH THE PROVISIONS OF THE NATURAL GAS
ACT, ON JULY 16, 1954, ISSUED AN ORDER REQUIRING INDEPENDENT PRODUCERS
TO FILE WITH THE COMMISSION RATE SCHEDULES SETTING FORTH THE TERMS AND
CONDITIONS OF SERVICE AND ALL RATES AND CHARGES FOR TRANSPORTATION OR
SALES EFFECTIVE ON JUNE 7, 1954.  "RATE SCHEDULE" WAS DEFINED TO MEAN
"THE BASIC CONTRACT AND ALL SUPPLEMENTS OR AGREEMENTS AMENDATORY
THEREOF, EFFECTIVE AND APPLICABLE ON AND AFTER JUNE 7, 1954 ...  ."  18
CFR, 1960 CUM. SUPP., SEC. 154.93.  IN COMPLIANCE WITH THE COMMISSION'S
DIRECTIVE, PETITIONER TEXACO FILED THE BASIC CONTRACT BETWEEN IT AND
CITIES SERVICE, AN AMENDATORY LETTER, SAMPLE BILLING STATEMENTS, THE
KANSAS MINIMUM-RATE ORDER, AND THE CITIES SERVICE LETTER OF JANUARY 21,
1954.  PETITIONER PAN AMERICAN FILED ITS BASIC CONTRACT WITH CITIES
SERVICE, A NUMBER OF SUPPLEMENTAL LETTERS AND AGREEMENTS (NOT INCLUDING
THE LETTER OF JANUARY 21, 1954), A SAMPLE BILLING, AND THE KANSAS
ORDER.  WITH REFERENCE TO THAT ORDER, PAN AMERICAN EXPLAINED THAT IT
HAD BEEN UPHELD BY A COURT OF COMPETENT JURISDICTION AND THAT THEREFORE
THE GAS SALES CONTRACT HAD "IN EFFECT" BEEN "AMENDED THEREBY." 

ON DECEMBER 8, 1956, THE SUPREME COURT OF KANSAS SUSTAINED THE
VALIDITY OF THE KANSAS CORPORATION COMMISSION'S MINIMUM-RATE ORDER,
CITIES SERVICE GAS CO. V. STATE CORPORATION COMM'N, 180 KAN. 454, 304
P.2D 528, BUT ON JANUARY 20, 1958, THAT DECISION WAS REVERSED HERE,
CITIES SERVICE GAS CO. V. STATE CORPORATION COMM'N, 355 U.S. 391. 

IN COMPLAINTS FILED IN THE SUPERIOR COURT OF DELAWARE IN JUNE OF
1958, CITIES SERVICE SET FORTH THE ORIGINAL CONTRACTS BETWEEN THE
PARTIES, THE KANSAS MINIMUM-RATE ORDER AND ITS BEARING ON THE
CONTRACTUALLY DETERMINED PRICES, THE LETTER OF JANUARY 21, 1954, THE
VOUCHER CHECKS, OTHER RELEVANT CORRESPONDENCE, AND THIS COURT'S
REVERSAL OF THE KANSAS SUPREME COURT'S DECISION UPHOLDING THE ORDER'S
VALIDITY.  ON THE BASIS OF THESE ALLEGATIONS CITIES SERVICE SUED FOR
OVERCHARGES BY TEXACO IN THE SUM OF $412,995.95 AND PAN AMERICAN OF
$10,324,468.67, PAID UNDER COMPULSION OF THE KANSAS ORDER FOR GAS
PURCHASED AT RATES HIGHER THAN THOSE STIPULATED BY CONTRACT.  AFTER
INTERMEDIATE PROCEDURAL STEPS, THE DEFENDANTS MOVED FOR SUMMARY
JUDGMENTS, WHICH WERE DENIED.  THERE FOLLOWED THIS PETITION FOR A WRIT
OF PROHIBITION, ATTACKING THE JURISDICTION OF THE SUPERIOR COURT TO
ENTERTAIN THE ACTIONS BROUGHT BY CITIES SERVICE. 

THE SUPREME COURT OF DELAWARE SUSTAINED THE JURISDICTION OF THE
SUPERIOR COURT OVER THESE CAUSES, STATING THAT THE CLAIMS OF CITIES
SERVICE "ARE NOT FOUNDED UPON ANY LIABILITY CREATED BY THE NATURAL GAS
ACT, BUT UPON A PRIVATE CONTRACT DERIVING ITS FORCE FROM STATE LAW." 
COLUMBIAN FUEL CORP. V. SUPERIOR COURT, 52 DEL. - , - , 158 A.2D 478,
482. 

"IT IS CERTAINLY TRUE THAT THE ADJUDICATION OF THESE CLAIMS DOES
ENTAIL AN EXAMINATION OF THE PROVISIONS OF THE NATURAL GAS ACT, THE
REGULATIONS OF THE COMMISSION, AND THE APPLICABLE FEDERAL DECISIONS. 
BUT THESE HAVE BEEN BROUGHT INTO THE CASES BY WAY OF DEFENSE TO
COMPLAINTS WHICH, ON THEIR FACE, ARE BASED ON NOTHING MORE THAN
CONTRACTS TO REFUND AMOUNTS MEASURED BY THE CONTRACT OR 'FILED' RATE
AND THE RATE FIXED BY THE KANSAS ORDER.  THE GENERAL RULE IS THAT IN
SUCH A CASE THE PLAINTIFF'S SUIT IS NOT ONE ARISING UNDER FEDERAL LAW
... ."  52 DEL., AT - , 158 A.2D, AT 483. 

THE ARGUMENT AGAINST THIS CONCLUSION RUNS AS FOLLOWS.  UNDER THE
NATURAL GAS ACT THE PRICES TO BE PAID FOR NATURAL GAS SOLD WHOLESALE IN
INTERSTATE COMMERCE MUST BE IN ACCORDANCE WITH THE RATES FILED WITH THE
FEDERAL POWER COMMISSION.  SINCE THE SUITS INSTITUTED BY CITIES SERVICE
INVOLVE RATES SO FILED, THEY MUST EITHER BE TO ENFORCE A FILED RATE OR
TO CHALLENGE A FILED RATE.  IF THE FORMER, THEY ARE SUBJECT TO SEC. 22
OF THE ACT, WHICH PROVIDES, FOR PRESENT PURPOSES, THAT "THE DISTRICT
COURTS OF THE UNITED STATES  ...  SHALL HAVE EXCLUSIVE JURISDICTION OF
VIOLATIONS OF THIS STATUTE OR THE RULES, REGULATIONS, AND ORDERS
THEREUNDER, AND OF ALL SUITS IN EQUITY AND ACTIONS AT LAW BROUGHT TO
ENFORCE ANY LIABILITY OR DUTY CREATED BY, OR TO ENJOIN ANY VIOLATION
OF, THIS STATUTE OR ANY RULE, REGULATION, OR ORDER THEREUNDER."  52
STAT. 833, 15 U.S.C. SEC.  717U.  IF THE LATTER, THEY LIE WITHIN THE
PURVIEW OF SEC. 19 OF THE ACT, WHICH PROVIDES FOR REVIEW OF COMMISSION
ORDERS IN THE UNITED STATES COURTS OF APPEALS.  52 STAT. 831, 15 U.S.C.
SEC. 717R.  IN EITHER CASE, THE STATE COURTS ARE DEPRIVED OF
JURISDICTION. 

BUT QUESTIONS OF EXCLUSIVE FEDERAL JURISDICTION AND OUSTER OF
JURISDICTION OF STATE COURTS ARE, UNDER EXISTING JURISDICTIONAL
LEGISLATION, NOT DETERMINED BY ULTIMATE SUBSTANTIVE ISSUES OF FEDERAL
LAW.  THE ANSWERS DEPEND ON THE PARTICULAR CLAIMS A SUITOR MAKES IN A
STATE COURT - ON HOW HE CASTS HIS ACTION.  SINCE "THE PARTY WHO BRINGS
A SUIT IS MASTER TO DECIDE WHAT LAW HE WILL RELY UPON," THE FAIR V.
KOHLER DIE & SPECIALTY CO., 228 U.S. 22, 25, THE COMPLAINTS IN THE
DELAWARE SUPERIOR COURT DETERMINE THE NATURE OF THE SUITS BEFORE IT.
THEIR OPERATIVE PARAGRAPHS DEMAND RECOVERY ON ALLEGED CONTRACTS TO
REFUND OVERPAYMENTS IN THE EVENT OF A JUDICIAL FINDING THAT THE KANSAS
MINIMUM-RATE ORDER WAS INVALID, OR FOR RESTITUTION OF THE OVERPAYMENTS
BY WHICH PETITIONERS HAVE ALLEGEDLY BEEN UNJUSTLY ENRICHED UNDER THE
COMPULSION OF THE INVALID KANSAS ORDER.  NO RIGHT IS ASSERTED UNDER THE
NATURAL GAS ACT. 

THE SUITS ARE THUS BASED UPON CLAIMS OF RIGHT ARISING UNDER STATE,
NOT FEDERAL, LAW.  IT IS SETTLED DOCTRINE THAT A CASE IS NOT COGNIZABLE
IN A FEDERAL TRIAL COURT, IN THE ABSENCE OF DIVERSITY OF CITIZENSHIP,
UNLESS IT APPEARS FROM THE FACE OF THE COMPLAINT THAT DETERMINATION OF
THE SUIT DEPENDS UPON A QUESTION OF FEDERAL LAW.  SEE, E.G., SKELLY OIL
CO. V. PHILLIPS PETROLEUM CO., 339 U.S. 667, 672, AND CASES CITED. 
APART FROM DIVERSITY JURISDICTION, "A RIGHT OR IMMUNITY CREATED BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES MUST BE AN ELEMENT, AND AN
ESSENTIAL ONE, OF THE PLAINTIFF'S CAUSE OF ACTION  ...  .  AND THE
CONTROVERSY MUST BE DISCLOSED UPON THE FACE OF THE COMPLAINT, UNAIDED
BY THE ANSWER OR BY THE PETITION FOR REMOVAL  ...  ."  GULLY V. FIRST
NATIONAL BANK, 299 U.S. 109, 112-113. 

FOR THIS REQUIREMENT IT IS NO SUBSTITUTE THAT THE DEFENDANT IS ALMOST
CERTAIN TO RAISE A FEDERAL DEFENSE.  SEE SKELLY OIL CO. V. PHILLIPS
PETROLEUM, SUPRA; GULLY V. FIRST NATIONAL BANK, SUPRA, AND AUTHORITIES
CITED IN THOSE CASES.  EQUALLY IMMATERIAL IS IT THAT THE PLAINTIFF
COULD HAVE ELECTED TO PROCEED ON A FEDERAL GROUND.  HENRY V. A.B. DICK
CO., 224 U.S. 1, 14-17.  IF THE PLAINTIFF DECIDES NOT TO INVOKE A
FEDERAL RIGHT, HIS CLAIM BELONGS IN A STATE COURT. 

THE RIGHTS AS ASSERTED BY CITIES SERVICE ARE TRADITIONAL COMMON-LAW
CLAIMS.  THEY DO NOT LOSE THEIR CHARACTER BECAUSE IT IS COMMON
KNOWLEDGE THAT THERE EXISTS A SCHEME OF FEDERAL REGULATION OF
INTERSTATE TRANSMISSION OF NATURAL GAS.  WHAT WAS SAID IN GULLY V.
FIRST NATIONAL BANK, 299 U.S., AT 116, IS APPOSITE: 

"WE RECUR TO THE TEST ANNOUNCED IN PUERTO RICO V. RUSSELL & CO.,
SUPRA:  'THE FEDERAL NATURE OF THE RIGHT TO BE ESTABLISHED IS DECISIVE
NOT THE SOURCE OF THE AUTHORITY TO ESTABLISH IT.'  HERE THE RIGHT TO
BE ESTABLISHED IS ONE CREATED BY THE STATE.  IF THAT IS SO, IT IS
UNIMPORTANT THAT FEDERAL CONSENT IS THE SOURCE OF STATE AUTHORITY.  TO
REACH THE UNDERLYING LAW WE DO NOT TRAVEL BACK SO FAR.  BY
UNIMPEACHABLE AUTHORITY, A SUIT BROUGHT UPON A STATE STATUTE DOES NOT
ARISE UNDER AN ACT OF CONGRESS OR THE CONSTITUTION OF THE UNITED STATES
BECAUSE PROHIBITED THEREBY.  LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY,
SUPRA.  WITH NO GREATER REASON CAN IT BE SAID TO ARISE THEREUNDER
BECAUSE PERMITTED THEREBY." 

WE ARE NOT CALLED UPON TO DECIDE THE EXTENT TO WHICH THE NATURAL GAS
ACT REINFORCES OR ABROGATES THE PRIVATE CONTRACT RIGHTS HERE IN
CONTROVERSY.  THE FACT THAT CITIES SERVICE SUES IN CONTRACT OR QUASI
CONTRACT, NOT THE ULTIMATE VALIDITY OF ITS ARGUMENTS, IS DECISIVE. 

NOR DOES SEC. 22 OF THE NATURAL GAS ACT HELP PETITIONERS.  "EXCLUSIVE
JURISDICTION" IS GIVEN THE FEDERAL COURTS BUT IT IS "EXCLUSIVE" ONLY
FOR SUITS THAT MAY BE BROUGHT IN THE FEDERAL COURTS.  EXCLUSIVENESS IS
A CONSEQUENCE OF HAVING JURISDICTION, NOT THE GENERATOR OF JURISDICTION
BECAUSE OF WHICH STATE COURTS ARE EXCLUDED.  THIS WAS SETTLED LONG AGO
IN PRATT V. PARIS GAS LIGHT & COKE CO., 168 U.S. 255, A CASE INVOLVING
A GRANT OF EXCLUSIVE JURISDICTION TO THE FEDERAL COURTS IN ALL CASES
ARISING UNDER THE PATENT LAWS.  SUIT WAS BROUGHT IN A STATE COURT ON A
COMMON-LAW CONTRACT CLAIM.  THE COMPLAINT CONTAINED NO MENTION OF A
PATENT, BUT THE INVALIDITY OF CERTAIN PATENTS WAS SET UP IN DEFENSE. 
IN RESPONSE TO THE ARGUMENT THAT THIS DEPRIVED THE STATE COURTS OF
JURISDICTION, THE COURT SAID:    "SECTION 711 (THE JURISDICTIONAL
PROVISION) DOES NOT DEPRIVE THE STATE COURTS OF THE POWER TO DETERMINE
QUESTIONS ARISING UNDER THE PATENT LAWS, BUT ONLY OF ASSUMING
JURISDICTION OF 'CASES' ARISING UNDER THOSE LAWS.  THERE IS A CLEAR
DISTINCTION BETWEEN A CASE AND A QUESTION ARISING UNDER THE PATENT
LAWS.  THE FORMER ARISES WHEN THE PLAINTIFF IN HIS OPENING PLEADING -
BE IT A BILL, COMPLAINT OR DECLARATION - SETS UP A RIGHT UNDER THE
PATENT LAWS AS GROUND FOR A RECOVERY.  OF SUCH THE STATE COURTS HAVE NO
JURISDICTION.  THE LATTER MAY APPEAR IN THE PLEA OR ANSWER OR IN THE
TESTIMONY.  THE DETERMINATION OF SUCH QUESTION IS NOT BEYOND THE
COMPETENCY OF THE STATE TRIBUNALS."   168 U.S., AT 259.  (FN2) 

PETITIONERS CONTEND THAT TO PERMIT THE STATE COURTS TO ENTERTAIN THE
SUITS BROUGHT BY CITIES SERVICE WILL JEOPARDIZE THE UNIFORM SYSTEM OF
REGULATION THAT CONGRESS ESTABLISHED THROUGH THE NATURAL GAS ACT. 
APART FROM OTHER CONSIDERATIONS THAT DISPEL SUCH FEARS, IT SHOULD BE
REMEMBERED THAT THE ROUTE TO REVIEW BY THIS COURT IS OPEN TO PARTIES
AGGRIEVED BY ADVERSE STATE-COURT DECISIONS OF FEDERAL QUESTIONS.  IN
GREAT NORTHERN R. CO. V. MERCHANTS ELEVATOR CO., 259 U.S. 285, THE
QUESTION BEFORE THE COURT WAS WHETHER NOT MERELY THE STATE COURTS BUT
ANY COURT HAD JURISDICTION TO CONSTRUE A TARIFF PRIOR TO CONSIDERATION
OF THE DISPUTED QUESTION OF CONSTRUCTION BY THE INTERSTATE COMMERCE
COMMISSION.  IT WAS ARGUED IN THAT CASE, AS IT IS ARGUED HERE, THAT TO
PERMIT ENTRY INTO THE COURTS, WITHOUT INITIAL RESORT TO THE COMMISSION,
WOULD DESTROY ESSENTIAL UNIFORMITY.  THE ANSWER THERE GIVEN BY MR.
JUSTICE BRANDEIS, SPEAKING FOR THE COURT, APPLIES HERE: 

"THIS ARGUMENT IS UNSOUND.  IT IS TRUE THAT UNIFORMITY IS THE
PARAMOUNT PURPOSE OF THE COMMERCE ACT.  BUT IT IS NOT TRUE THAT
UNIFORMITY IN CONSTRUCTION OF A TARIFF CAN BE ATTAINED ONLY THROUGH A
PRELIMINARY RESORT TO THE COMMISSION TO SETTLE THE CONSTRUCTION IN
DISPUTE.  EVERY QUESTION OF THE CONSTRUCTION OF A TARIFF IS DEEMED A
QUESTION OF LAW; AND WHERE THE QUESTION CONCERNS AN INTERSTATE TARIFF
IT IS ONE OF FEDERAL LAW.  IF THE PARTIES PROPERLY PRESERVE THEIR
RIGHTS, A CONSTRUCTION GIVEN BY ANY COURT, WHETHER IT BE FEDERAL OR
STATE, MAY ULTIMATELY BE REVIEWED BY THIS COURT EITHER ON WRIT OF ERROR
OR ON WRIT OF CERTIORARI; AND THEREBY UNIFORMITY IN CONSTRUCTION MAY BE
SECURED.  HENCE, THE ATTAINMENT OF UNIFORMITY DOES NOT REQUIRE THAT IN
EVERY CASE WHERE THE CONSTRUCTION OF A TARIFF IS IN DISPUTE, THERE
SHALL BE A PRELIMINARY RESORT TO THE COMMISSION."  259 U.S., AT 290
291. 

WE HOLD THAT THE STATE COURTS OF DELAWARE DO HAVE JURISDICTION TO
HEAR AND DECIDE THE CLAIMS THAT CITIES SERVICE HAS FORMULATED. 
AFFIRMED. 

FN1  IT IS APPARENT FROM THE OPINION OF THE DELAWARE SUPREME COURT
THAT THIS WAS THE ONLY QUESTION DECIDED THERE.  SEE ALSO CLENDANIEL V.
CONRAD, 26 DEL. 549, 598, 83 A. 1036, 1052. 

"THE WRIT OF PROHIBITION  ...  ISSUES ONLY FROM A SUPERIOR COURT TO
AN INFERIOR COURT, TRIBUNAL OR JUDGE, AND ONLY FOR THE PURPOSE OF
KEEPING SUCH INFERIOR COURT WITHIN THE LIMITS OF ITS JURISDICTION. 
THAT IS THE SOLE PURPOSE OF THE WRIT." 

ACCORD, KNIGHT V. HALEY, 36 DEL. 366, 374, 176 A. 461, 464; CANADAY
V. SUPERIOR COURT, 49 DEL. 332, 338-339, 116 A.2D 678, 681-682. 

FN2  THE FOREGOING CONCLUSIONS ARE NOT AFFECTED BY WANT OF EXPLICIT
LIMITATION TO JURISDICTION "ARISING UNDER" THE NATURAL GAS ACT.  SUCH
LIMITATION IS CLEARLY IMPLIED, AS THE AUTHORITATIVE COMMITTEE REPORTS
INDICATE.  "THIS SECTION (REFERRING TO SEC. 22) IMPOSES APPROPRIATE
JURISDICTION UPON THE COURTS OF THE UNITED STATES OVER CASES ARISING
UNDER THE ACT."  H.R. REP. NO. 709, 75TH CONG., 1ST SESS., P. 9; S.
REP. NO. 1162, 75TH CONG., 1ST SESS., P. 7. 
..END :










LOCAL 761, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS,
AFL-CIO V. NATIONAL LABOR RELATIONS BOARD 366 U.S. 667 


NO. 321.  ARGUED APRIL 17-18, 1961 - DECIDED MAY 29, 1961 - 107 U.S.
APP. D.C. 402, 278 F.2D 282, REVERSED AND REMANDED. 


IN THIS CASE ARISING UNDER SEC. 8(B)(4)(A) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED BY THE TAFT-HARTLEY ACT, A MANUFACTURER
OPERATED A PLANT IN A LARGE AREA TO WHICH A DRAINAGE DITCH MADE INGRESS
AND EGRESS IMPOSSIBLE EXCEPT OVER FIVE ROADWAYS ACROSS CULVERTS, WHICH
WERE CALLED GATES.  FOUR OF THESE GATES WERE USED BY ITS OWN EMPLOYEES;
BUT THEY WERE FORBIDDEN TO USE THE FIFTH, WHICH WAS RESERVED FOR THE
EXCLUSIVE USE OF EMPLOYEES OF INDEPENDENT CONTRACTORS, SOME OF WHOM DID
CONSTRUCTION WORK ON NEW BUILDINGS, SOME INSTALLED AND REPAIRED
VENTILATING AND HEATING EQUIPMENT, SOME ENGAGED IN RETOOLING AND
REARRANGING OPERATIONS NECESSARY FOR THE MANUFACTURE OF NEW MODELS AND
OTHERS DID "GENERAL MAINTENANCE WORK."  PETITIONER UNION, WHICH
REPRESENTED MOST OF THE MANUFACTURER'S EMPLOYEES AT THE PLANT, CALLED A
STRIKE AND PICKETED ALL GATES, INCLUDING THAT RESERVED FOR THE
EXCLUSIVE USE OF EMPLOYEES OF INDEPENDENT CONTRACTORS.  THE NATIONAL
LABOR RELATIONS BOARD HELD THAT THE PICKETING AT THE GATE WAS INTENDED
TO ENMESH THOSE EMPLOYEES OF NEUTRAL EMPLOYERS IN A DISPUTE WITH THE
MANUFACTURER AND THAT IT VIOLATED SEC. 8(B)(4)(A).  THE COURT OF
APPEALS SUSTAINED THIS FINDING AND GRANTED ENFORCEMENT OF THE BOARD'S
ORDER.  HELD:  THE BOARD'S ORDER SHOULD BE SUSTAINED, UNLESS THE GATE
IN QUESTION WAS IN FACT USED TO A SUBSTANTIAL EXTENT BY EMPLOYEES OF
INDEPENDENT CONTRACTORS WHO PERFORMED CONVENTIONAL MAINTENANCE WORK
NECESSARY TO THE NORMAL OPERATIONS OF THE MANUFACTURER.  SINCE THE
RECORD SHOWS SOME SUCH MINGLED USE BUT SHEDS NO LIGHT ON ITS EXTENT,
THE JUDGMENT IS REVERSED WITH DIRECTIONS THAT THE CASE BE REMANDED TO
THE BOARD FOR DETERMINATION OF THE EXTENT OF SUCH MINGLED USE.  PP. 668
682. 

LOCAL 761, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS,
AFL-CIO V. NATIONAL LABOR RELATIONS BOARD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

LOCAL 761 OF THE INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE
WORKERS, AFL-CIO, WAS CHARGED WITH A VIOLATION OF SEC. 8(B)(4)(A) OF
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE TAFT-HARTLEY ACT,
61 STAT. 136, 141, UPON THE FOLLOWING FACTS. 

GENERAL ELECTRIC CORPORATION OPERATES A PLANT OUTSIDE OF LOUISVILLE,
KENTUCKY, WHERE IT MANUFACTURES WASHERS, DRYERS, AND OTHER ELECTRICAL
HOUSEHOLD APPLIANCES.  THE SQUARE-SHAPED, THOUSAND-ACRE, UNFENCED PLANT
IS KNOWN AS APPLIANCE PARK.  A LARGE DRAINAGE DITCH MAKES INGRESS AND
EGRESS IMPOSSIBLE EXCEPT OVER FIVE ROADWAYS ACROSS CULVERTS DESIGNATED
AS GATES. 

SINCE 1954, GENERAL ELECTRIC SOUGHT TO CONFINE THE EMPLOYEES OF
INDEPENDENT CONTRACTORS, DESCRIBED HEREAFTER, WHO WORK ON THE PREMISES
OF THE PARK, TO THE USE OF GATE 3-A AND CONFINE ITS USE TO THEM.   THE
UNDISPUTED REASON FOR DOING SO WAS TO INSULATE GENERAL ELECTRIC
EMPLOYEES FROM THE FREQUENT LABOR DISPUTES IN WHICH THE CONTRACTORS
WERE INVOLVED.  GATE 3-A IS 550 FEET AWAY FROM THE NEAREST ENTRANCE
AVAILABLE FOR GENERAL ELECTRIC EMPLOYEES, SUPPLIERS, AND DELIVERYMEN. 
ALTHOUGH ANYONE CAN PASS THE GATE WITHOUT CHALLENGE, (FN1) THE ROADWAY
LEADS TO A GUARDHOUSE WHERE IDENTIFICATION MUST BE PRESENTED.  VEHICLE
STICKERS OF VARIOUS SHAPES AND COLORS ENABLE A GUARD TO CHECK ON SIGHT
WHETHER A VEHICLE IS AUTHORIZED TO USE GATE 3-A.  SINCE JANUARY 1958, A
PROMINENT SIGN HAS BEEN POSTED AT THE GATE WHICH STATES:  "GATE 3-A FOR
EMPLOYEES OF CONTRACTORS ONLY - G.E.  EMPLOYEES USE OTHER GATES."  ON
RARE OCCASIONS, IT APPEARS, A GENERAL ELECTRIC EMPLOYEE WAS ALLOWED TO
PASS THE GUARDHOUSE, BUT SUCH OCCURRENCE WAS IN VIOLATION OF COMPANY
INSTRUCTIONS.  THERE WAS NO PROOF OF ANY UNAUTHORIZED ATTEMPTS TO PASS
THE GATE DURING THE STRIKE IN QUESTION. 

THE INDEPENDENT CONTRACTORS ARE UTILIZED FOR A GREAT VARIETY OF TASKS
ON THE APPLIANCE PARK PREMISES.  SOME DO CONSTRUCTION WORK ON NEW
BUILDINGS; SOME INSTALL AND REPAIR VENTILATING AND HEATING EQUIPMENT;
SOME ENGAGE IN RETOOLING AND REARRANGING OPERATIONS NECESSARY TO THE
MANUFACTURE OF NEW MODELS; OTHERS DO "GENERAL MAINTENANCE WORK."  THESE
SERVICES ARE CONTRACTED TO OUTSIDE EMPLOYERS EITHER BECAUSE THE
COMPANY'S EMPLOYEES LACK THE NECESSARY SKILL OR MANPOWER, OR BECAUSE
THE WORK CAN BE DONE MORE ECONOMICALLY BY INDEPENDENT CONTRACTORS.  THE
LATTER REASON DETERMINED THE CONTRACTING OF MAINTENANCE WORK FOR WHICH
THE CENTRAL MAINTENANCE DEPARTMENT OF THE COMPANY BID COMPETITIVELY
WITH THE CONTRACTORS.  WHILE SOME OF THE WORK DONE BY THESE CONTRACTORS
HAD ON OCCASION BEEN PREVIOUSLY PERFORMED BY CENTRAL MAINTENANCE, THE
FINDINGS DO NOT DISCLOSE THE NUMBER OF EMPLOYEES OF INDEPENDENT
CONTRACTORS WHO WERE PERFORMING THESE ROUTINE MAINTENANCE SERVICES, AS
COMPARED WITH THOSE WHO WERE DOING SPECIALIZED WORK OF A CAPITAL
IMPROVEMENT NATURE. 

THE UNION, PETITIONER HERE, IS THE CERTIFIED BARGAINING
REPRESENTATIVE FOR THE PRODUCTION AND MAINTENANCE WORKERS WHO
CONSTITUTE APPROXIMATELY 7,600 OF THE 10,500 EMPLOYEES OF GENERAL
ELECTRIC AT APPLIANCE PARK.  ON JULY 27, 1958, THE UNION CALLED A
STRIKE BECAUSE OF 24 UNSETTLED GRIEVANCES WITH THE COMPANY.  PICKETING
OCCURRED AT ALL THE GATES, INCLUDING GATE 3-A, AND CONTINUED UNTIL
AUGUST 9 WHEN AN INJUNCTION WAS ISSUED BY A FEDERAL DISTRICT COURT. 
THE SIGNS CARRIED BY THE PICKETS AT ALL GATES READ:  "LOCAL 761 ON
STRIKE G.E. UNFAIR."  BECAUSE OF THE PICKETING, ALMOST ALL OF THE
EMPLOYEES OF INDEPENDENT CONTRACTORS REFUSED TO ENTER THE COMPANY
PREMISES. 

NEITHER THE LEGALITY OF THE STRIKE OR OF THE PICKETING AT ANY OF THE
GATES EXCEPT 3-A NOR THE PEACEFUL NATURE OF THE PICKETING IS IN
DISPUTE.  THE SOLE CLAIM IS THAT THE PICKETING BEFORE THE GATE
EXCLUSIVELY USED BY EMPLOYEES OF INDEPENDENT CONTRACTORS WAS CONDUCT
PROSCRIBED BY SEC. 8(B)(4)(A). 

THE TRIAL EXAMINER RECOMMENDED THAT THE BOARD DISMISS THE COMPLAINT. 
HE CONCLUDED THAT THE LIMITATIONS ON PICKETING WHICH THE BOARD HAD
PRESCRIBED IN SO-CALLED "COMMON SITUS" CASES WERE NOT APPLICABLE TO THE
SITUATION BEFORE HIM, IN THAT THE PICKETING AT GATE 3-A REPRESENTED
TRADITIONAL PRIMARY ACTION WHICH NECESSARILY HAD A SECONDARY EFFECT OF
INCONVENIENCING THOSE WHO DID BUSINESS WITH THE STRUCK EMPLOYER.  HE
REASONED THAT IF A PRIMARY EMPLOYER COULD LIMIT THE AREA OF PICKETING
AROUND HIS OWN PREMISES BY CONSTRUCTING A SEPARATE GATE FOR EMPLOYEES
OF INDEPENDENT CONTRACTORS, SUCH A DEVICE COULD ALSO BE USED TO ISOLATE
EMPLOYEES OF HIS SUPPLIERS AND CUSTOMERS, AND THAT SUCH ACTION COULD
NOT RELEVANTLY BE DISTINGUISHED FROM ORAL APPEALS MADE TO SECONDARY
EMPLOYEES NOT TO CROSS A PICKET LINE WHERE ONLY A SINGLE GATE EXISTED. 

THE BOARD REJECTED THE TRIAL EXAMINER'S CONCLUSION, 123 N.L.R.B.
1547.  IT HELD THAT, SINCE ONLY THE EMPLOYEES OF THE INDEPENDENT
CONTRACTORS WERE ALLOWED TO USE GATE 3-A, THE UNION'S OBJECT IN
PICKETING THERE WAS "TO ENMESH THESE EMPLOYEES OF THE NEUTRAL EMPLOYERS
IN ITS DISPUTE WITH THE COMPANY," THEREBY CONSTITUTING A VIOLATION OF
SEC. 8(B)(4)(A) BECAUSE THE INDEPENDENT EMPLOYEES WERE ENCOURAGED TO
ENGAGE IN A CONCERTED REFUSAL TO WORK "WITH AN OBJECT OF FORCING THE
INDEPENDENT CONTRACTORS TO CEASE DOING BUSINESS WITH THE COMPANY." 
(FN2) 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA GRANTED ENFORCEMENT
OF THE BOARD'S ORDER, 107 U.S. APP. D.C. 402, 278 F.2D 282.  ALTHOUGH
NOTING THAT A FINE LINE WAS BEING DRAWN, IT CONCLUDED THAT THE BOARD
WAS CORRECT IN FINDING THAT THE OBJECTIVE OF THE GATE 3-A PICKETING WAS
TO ENCOURAGE THE INDEPENDENT-CONTRACTOR EMPLOYEES TO ENGAGE IN A
CONCERTED REFUSAL TO PERFORM SERVICES FOR THEIR EMPLOYERS IN ORDER TO
BRING PRESSURE ON GENERAL ELECTRIC.  SINCE THE INCIDENCE OF THE PROBLEM
INVOLVED IN THIS CASE IS EXTENSIVE AND THE TREATMENT IT HAS RECEIVED
CALLS FOR CLARIFICATION, WE BROUGHT THE CASE HERE, 364 U.S. 869. 

                                    I. 

IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION: 

"  ...  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS: (A) FORCING OR
REQUIRING  ...  ANY EMPLOYER OR OTHER PERSON  ...  TO CEASE DOING
BUSINESS WTIH ANY OTHER PERSON  ...  ." 

THIS PROVISION COULD NOT BE LITERALLY CONSTRUED; OTHERWISE IT WOULD
BAN MOST STRIKES HISTORICALLY CONSIDERED TO BE LAWFUL, SO-CALLED
PRIMARY ACTIVITY.  "WHILE SEC. 8(B)(4) DOES NOT EXPRESSLY MENTION
'PRIMARY' OR 'SECONDARY' DISPUTES, STRIKES OR BOYCOTTS, THAT SECTION
OFTEN IS REFERRED TO IN THE ACT'S LEGISLATIVE HISTORY AS ONE OF THE
ACT'S 'SECONDARY BOYCOTT SECTIONS.'"  LABOR BOARD V. DENVER BUILDING
COUNCIL, 341 U.S. 675, 686.  "CONGRESS DID NOT SEEK, BY SEC. 8(B)(4),
TO INTERFERE WITH THE ORDINARY STRIKE  ...  ."  LABOR BOARD V.
INTERNATIONAL RICE MILLING CO., 341 U.S. 665, 672.  THE IMPACT OF THE
WHOSE "SANCTIONS BEAR, NOT UPON THE EMPLOYER WHO ALONE IS A PARTY TO
THE DISPUTE, BUT UPON SOME THIRD PARTY WHO HAS NO CONCERN IN IT." 
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS V. LABOR BOARD, 181
F.2D 34, 37.  THUS THE SECTION "LEFT A STRIKING LABOR ORGANIZATION FREE
TO USE PERSUASION, INCLUDING PICKETING, NOT ONLY ON THE PRIMARY
EMPLOYER AND HIS EMPLOYEES BUT ON NUMEROUS OTHERS.  AMONG THESE WERE
SECONDARY EMPLOYERS WHO WERE CUSTOMERS OR SUPPLIERS OF THE PRIMARY
EMPLOYER AND PERSONS DEALING WITH THEM  ...  AND EVEN EMPLOYEES OF
SECONDARY EMPLOYERS SO LONG AS THE LABOR ORGANIZATION DID NOT 

...  'INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY EMPLOYER TO ENGAGE IN
A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF THEIR EMPLOYMENT'  ...
."  LABOR BOARD V. LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
284 F.2D 887, 889. 

BUT NOT ALL SO-CALLED SECONDARY BOYCOTTS WERE OUTLAWED IN SEC.
8(B)(4)(A).  "THE SECTION DOES NOT SPEAK GENERALLY OF SECONDARY
BOYCOTTS.  IT DESCRIBES AND CONDEMNS SPECIFIC UNION CONDUCT DIRECTED TO
SPECIFIC OBJECTIVES  ...  .  EMPLOYEES MUST BE INDUCED; THEY MUST BE
INDUCED TO ENGAGE IN A STRIKE OR CONCERTED REFUSAL; AN OBJECT MUST BE
TO FORCE OR REQUIRE THEIR EMPLOYER OR ANOTHER PERSON TO CEASE DOING
BUSINESS WITH A THIRD PERSON.  THUS, MUCH THAT MIGHT ARGUMENTATIVELY BE
FOUND TO FALL WITHIN THE BROAD AND SOMEWHAT VAGUE CONCEPT OF SECONDARY
BOYCOTT IS NOT IN TERMS PROHIBITED."  LOCAL 1976, UNITED BROTHERHOOD OF
CARPENTERS V. LABOR BOARD, 357 U.S. 93, 98.  SEE ALSO UNITED
BROTHERHOOD OF CARPENTERS (WADSWORTH BUILDING CO.), 81 N.L.R.B. 802,
805. 

IMPORTANT AS IS THE DISTINCTION BETWEEN LEGITIMATE "PRIMARY ACTIVITY"
AND BANNED "SECONDARY ACTIVITY," IT DOES NOT PRESENT A GLARINGLY BRIGHT
LINE.  THE OBJECTIVES OF ANY PICKETING INCLUDE A DESIRE TO INFLUENCE
OTHERS FROM WITHHOLDING FROM THE EMPLOYER THEIR SERVICES OR TRADE.  SEE
SAILORS' UNION OF THE PACIFIC (MOORE DRY DOCK), 92 N.L.R.B. 547. 
"INTENDED OR NOT, SOUGHT FOR OR NOT, AIMED FOR OR NOT, EMPLOYEES OF
NEUTRAL EMPLOYERS DO TAKE ACTION SYMPATHETIC WITH STRIKERS AND DO PUT
PRESSURE ON THEIR OWN EMPLOYERS."  SEAFARERS INTERNATIONAL UNION V.
LABOR BOARD, 265 F.2D 585, 590.  "IT IS CLEAR THAT, WHEN A UNION
PICKETS AN EMPLOYER WITH WHOM IT HAS A DISPUTE, IT HOPES, EVEN IF IT
DOES NOT INTEND, THAT ALL PERSONS WILL HONOR THE PICKET LINE, AND THAT
HOPE ENCOMPASSES THE EMPLOYEES OF NEUTRAL EMPLOYERS WHO MAY IN THE
COURSE OF THEIR EMPLOYMENT (DELIVERYMEN AND THE LIKE) HAVE TO ENTER THE
PREMISES."  ID., AT 591.  "ALMOST ALL PICKETING, EVEN AT THE SITUS OF
THE PRIMARY EMPLOYER AND SURELY AT THAT OF THE SECONDARY, HOPES TO
ACHIEVE THE FORBIDDEN OBJECTIVE, WHATEVER OTHER MOTIVES THERE MAY BE
AND HOWEVER SMALL THE CHANCES OF SUCCESS."  LOCAL 294, SUPRA, AT 890. 
BUT PICKETING WHICH INDUCES SECONDARY EMPLOYEES TO RESPECT A PICKET
LINE IS NOT THE EQUIVALENT OF PICKETING WHICH HAS AN OBJECT OF INDUCING
THOSE EMPLOYEES TO ENGAGE IN CONCERTED CONDUCT AGAINST THEIR EMPLOYER
IN ORDER TO FORCE HIM TO REFUSE TO DEAL WITH THE STRUCK EMPLOYER. 
LABOR BOARD V. INTERNATIONAL RICE MILLING, SUPRA. 

HOWEVER DIFFICULT THE DRAWING OF LINES MORE NICE THAN OBVIOUS, THE
STATUTE COMPELS THE TASK.  ACCORDINGLY, THE BOARD AND THE COURTS HAVE
ATTEMPTED TO DEVISE REASONABLE CRITERIA DRAWING HEAVILY UPON THE MEANS
TO WHICH A UNION RESORTS IN PROMOTING ITS CAUSE.  ALTHOUGH "NO RIGID
RULE WHICH WOULD MAKE  ...  A FEW FACTORS CONCLUSIVE IS CONTAINED IN OR
DEDUCIBLE FROM THE STATUTE," SALES DRIVERS V. LABOR BOARD, 229 F.2D
514, 517, (FN3) "IN THE ABSENCE OF ADMISSIONS BY THE UNION OF AN
ILLEGAL INTENT, THE NATURE OF ACTS PERFORMED SHOWS THE INTENT." 
SEAFARERS INTERNATIONAL UNION, SUPRA, AT 591. 

THE NATURE OF THE PROBLEM, AS REVEALED BY UNFOLDING VARIANT
SITUATIONS, INEVITABLY INVOLVES AN EVOLUTIONARY PROCESS FOR ITS
RATIONAL RESPONSE, NOT A QUICK, DEFINITIVE FORMULA AS A COMPREHENSIVE
ANSWER.  AND SO, IT IS NOT SURPRISING THAT THE BOARD HAS MORE OR LESS
FELT ITS WAY DURING THE FOURTEEN YEARS IN WHICH IT HAS HAD TO APPLY
SEC. 8(B)(4)(A), AND HAS MODIFIED AND REFORMED ITS STANDARDS ON THE
BASIS OF ACCUMULATING EXPERIENCE.  "ONE OF THE PURPOSES WHICH LEAD TO
THE CREATION OF SUCH BOARDS IS TO HAVE DECISIONS BASED UPON EVIDENTIAL
FACTS UNDER THE PARTICULAR STATUTE MADE BY EXPERIENCED OFFICIALS WITH
AN ADEQUATE APPRECIATION OF THE COMPLEXITIES OF THE SUBJECT WHICH IS
ENTRUSTED TO THEIR ADMINISTRATION."  REPUBLIC AVIATION CORP. V. LABOR
BOARD, 324 U.S. 793, 800. 

                                       II. 

THE EARLY DECISIONS OF THE BOARD FOLLOWING THE TAFT-HARTLEY
AMENDMENTS INVOLVED ACTIVITY WHICH TOOK PLACE AROUND THE SECONDARY
EMPLOYER'S PREMISES.  FOR EXAMPLE, IN WADSWORTH BUILDING CO., SUPRA,
THE UNION SET UP A PICKET LINE AROUND THE SITUS OF A BUILDER WHO HAD
CONTRACTED TO PURCHASE PREFABRICATED HOUSES FROM THE PRIMARY EMPLOYER. 
THE BOARD FOUND THIS TO BE ILLEGAL SECONDARY ACTIVITY.  SEE ALSO
PRINTING SPECIALTIES UNION (SEALBRIGHT PACIFIC), 82 N.L.R.B. 271.  IN
CONTRAST, WHEN PICKETING TOOK PLACE AROUND THE PREMISES OF THE PRIMARY
EMPLOYER, THE BOARD REGARDED THIS AS VALID PRIMARY ACTIVITY.  IN OIL
WORKERS INTERNATIONAL UNION (PURE OIL CO.), 84 N.L.R.B. 315, PURE HAD
USED STANDARD'S DOCK AND EMPLOYEES FOR LOADING ITS OIL ONTO SHIPS.  THE
COMPANIES HAD CONTRACTED THAT, IN CASE OF A STRIKE AGAINST STANDARD,
PURE EMPLOYEES WOULD TAKE OVER THE LOADING OF PURE OIL.  THE UNION
STRUCK AGAINST STANDARD AND PICKETED THE DOCK, AND PURE EMPLOYEES
REFUSED TO CROSS THE PICKET LINE.  THE BOARD HELD THIS TO BE A PRIMARY
ACTIVITY, ALTHOUGH THE UNION'S ACTION INDUCED THE PURE EMPLOYEES TO
ENGAGE IN A CONCERTED REFUSAL TO HANDLE PURE PRODUCTS AT THE DOCK.  THE
FACT THAT THE PICKETING WAS CONFINED TO THE VICINITY OF THE STANDARD
PREMISES INFLUENCED THE BOARD NOT TO FIND THAT AN OBJECT OF THE
ACTIVITY WAS TO FORCE PURE TO CEASE DOING BUSINESS WITH STANDARD, EVEN
IF SUCH WAS A SECONDARY EFFECT.    "A STRIKE, BY ITS VERY NATURE,
INCONVENIENCES THOSE WHO CUSTOMARILY DO BUSINESS WITH THE STRUCK
EMPLOYER.  MOREOVER, ANY ACCOMPANYING PICKETING OF THE EMPLOYER'S
PREMISES IS NECESSARILY DESIGNED TO INDUCE AND ENCOURAGE THIRD PERSONS
TO CEASE DOING BUSINESS WITH THE PICKETED EMPLOYER.  IT DOES NOT
FOLLOW, HOWEVER, THAT SUCH PICKETING IS THEREFORE PROSCRIBED BY SECTION
8(B)(4)(A) OF THE ACT."  84 N.L.R.B., AT 318.    SEE ALSO NEWSPAPER &
MAIL DELIVERERS' UNION (INTERBOROUGH NEWS CO.), 90 N.L.R.B. 2135;
INTERNATIONAL BROTHERHOOD OF TEAMSTERS (DI GIORGIO WINE CO.), 87
N.L.R.B. 720; INTERNATIONAL BROTHERHOOD OF TEAMSTERS (RICE MILLING
CO.), 84 N.L.R.B. 360. 

IN UNITED ELECTRICAL WORKERS (RYAN CONSTRUCTION CORP.), 85 N.L.R.B.
417, RYAN HAD CONTRACTED TO PERFORM CONSTRUCTION WORK ON A BUILDING
ADJACENT TO THE BUCYRUS PLANT AND INSIDE ITS FENCE.  A SEPARATE GATE
WAS CUT THROUGH THE FENCE FOR RYAN'S EMPLOYEES WHICH NO EMPLOYEE OF
BUCYRUS EVER USED.   THE BOARD CONCLUDED THAT THE UNION - ON STRIKE
AGAINST BUCYRUS - COULD PICKET THE RYAN GATE, EVEN THOUGH AN OBJECT OF
THE PICKETING WAS TO ENLIST THE AID OF RYAN EMPLOYEES, SINCE CONGRESS
DID NOT ENTEND TO OUTLAW PRIMARY PICKETING. 

"WHEN PICKETING IS WHOLLY AT THE PREMISES OF THE EMPLOYER WITH WHOM
THE UNION IS ENGAGED IN A LABOR DISPUTE, IT CANNOT BE CALLED
'SECONDARY' EVEN THOUGH, AS IS VIRTUALLY ALWAYS THE CASE, AN OBJECT OF
THE PICKETING IS TO DISSUADE ALL PERSONS FROM ENTERING SUCH PREMISES
FOR BUSINESS REASONS.   IT MAKES NO DIFFERENCE WHETHER 1 OR 100 OTHER
EMPLOYEES WISH TO ENTER THE PREMISES.  IT FOLLOWS IN THIS CASE THAT THE
PICKETING OF BUCYRUS PREMISES, WHICH WAS PRIMARY BECAUSE IN SUPPORT OF
A LABOR DISPUTE WITH BUCYRUS, DID NOT LOSE ITS CHARACTER AND BECOME
'SECONDARY' AT THE SO-CALLED RYAN GATE BECAUSE RYAN EMPLOYEES WERE THE
ONLY PERSONS REGULARLY ENTERING BUCYRUS PREMISES AT THAT GATE."  85
N.L.R.B., AT 418.  SEE ALSO GENERAL TEAMSTERS (CRUMP, INC.), 112
N.L.R.B. 311. 

THUS, THE BOARD ELIMINATED PICKETING WHICH TOOK PLACE AROUND THE
SITUS OF THE PRIMARY EMPLOYER - REGARDLESS OF THE SPECIAL CIRCUMSTANCES
INVOLVED - FROM BEING HELD INVALID SECONDARY ACTIVITY UNDER SEC.
8(B)(4)(A). 

HOWEVER, THE IMPACT OF THE NEW SITUATIONS MADE THE BOARD CONSCIOUS OF
THE COMPLEXITY OF THE PROBLEM BY REASON OF THE PROTEAN FORMS IN WHICH
IT APPEARED.  THIS BECAME CLEAR IN THE "COMMON SITUS" CASES -
SITUATIONS WHERE TWO EMPLOYERS WERE PERFORMING SEPARATE TASKS ON COMMON
PREMISES.  THE MOORE DRY DOCK CASE, SUPRA, LAID OUT THE BOARD'S NEW
STANDARDS IN THIS AREA.  THERE, THE UNION PICKETED OUTSIDE AN ENTRANCE
TO A DOCK WHERE A SHIP, OWNED BY THE STRUCK EMPLOYER, WAS BEING TRAINED
AND OUTFITTED.  ALTHOUGH THE PREMISES PICKETED WERE THOSE OF THE
SECONDARY EMPLOYER, THEY CONSTITUTED THE ONLY PLACE WHERE PICKETING
COULD TAKE PLACE; FURTHERMORE, THE OBJECTIVES OF THE PICKETING WERE NO
MORE AIMED AT THE EMPLOYEES OF THE SECONDARY EMPLOYER - THE DOCK OWNER
THAN THEY HAD BEEN IN THE PURE OIL AND RYAN CASES.  THE BOARD
CONCLUDED, HOWEVER, THAT WHEN THE SITUS OF THE PRIMARY EMPLOYER WAS
"AMBULATORY" THERE MUST BE A BALANCE BETWEEN THE UNION'S RIGHT TO
PICKET AND THE INTEREST OF THE SECONDARY EMPLOYER IN BEING FREE FROM
PICKETING.  IT SET OUT FOUR STANDARDS FOR PICKETING IN SUCH SITUATIONS
WHICH WOULD BE PRESUMPTIVE OF VALID PRIMARY ACTIVITY:  (1) THAT THE
PICKETING BE LIMITED TO TIMES WHEN THE SITUS OF DISPUTE WAS LOCATED ON
THE SECONDARY PREMISES, (2) THAT THE PRIMARY EMPLOYER BE ENGAGED IN HIS
NORMAL BUSINESS AT THE SITUS, (3) THAT THE PICKETING TAKE PLACE
REASONABLY CLOSE TO THE SITUS, AND (4) THAT THE PICKETING CLEARLY
DISCLOSE THAT THE DISPUTE WAS ONLY WITH THE PRIMARY EMPLOYER.  THESE
TESTS WERE WIDELY ACCEPTED BY REVIEWING FEDERAL COURTS.  SEE, E.G.,
LABOR BOARD V. SERVICE TRADE CHAUFFEURS, 191 F.2D 65 (C.A.2D CIR.);
PIEZONKI V. LABOR BOARD, 219 F.2D 879 (C.A. 4TH CIR.); LABOR BOARD V.
CHAUFFEURS, TEAMSTERS, 212 F.2D 216 (C.A. 7TH CIR.); LABOR BOARD V.
LOCAL 55, 218 F.2D 226 (C.A. 10TH CIR.).  AS IS TOO OFTEN THE WAY OF
LAW OR, AT LEAST, OF ADJUDICATIONS, SOON THE DRY DOCK TESTS WERE
MECHANICALLY APPLIED SO THAT A VIOLATION OF ONE OF THE STANDARDS WAS
TAKEN TO BE PRESUMPTIVE OF ILLEGAL ACTIVITY.  FOR EXAMPLE, FAILURE OF
PICKET SIGNS CLEARLY TO DESIGNATE THE EMPLOYER AGAINST WHOM THE STRIKE
WAS DIRECTED WAS HELD TO BE VIOLATIVE OF SEC. 8(B)(4)(A).  SEE SUPERIOR
DERRICK CORP. V. LABOR BOARD, 273 F.2D 891; TRUCK DRIVERS V. LABOR
BOARD, 249 F.2D 512; LABOR BOARD V. LOCAL 728, 228 F.2D 791. 

IN LOCAL 55 (PBM), 108 N.L.R.B. 363, THE BOARD FOR THE FIRST TIME
APPLIED THE DRY DOCK TEST, ALTHOUGH THE PICKETING OCCURRED AT PREMISES
OWNED BY THE PRIMARY EMPLOYER.  THERE, AN INSURANCE COMPANY OWNED A
TRACT OF LAND THAT IT WAS DEVELOPING, AND ALSO SERVED AS THE GENERAL
CONTRACTOR.  A NEUTRAL SUBCONTRACTOR WAS ALSO DOING WORK AT THE SITE. 
THE UNION, ENGAGED IN A STRIKE AGAINST THE INSURANCE COMPANY, PICKETED
THE ENTIRE PREMISES, CHARACTERIZING THE ENTIRE JOB AS UNFAIR, AND THE
EMPLOYEES OF THE SUBCONTRACTOR WALKED OFF.  THE COURT OF APPEALS FOR
THE TENTH CIRCUIT ENFORCED THE BOARD'S ORDER WHICH FOUND THE PICKETING
TO BE ILLEGAL ON THE GROUND THAT THE PICKET SIGNS DID NOT MEASURE UP TO
THE DRY DOCK STANDARD THAT THEY CLEARLY DISCLOSE THAT THE PICKETING WAS
DIRECTED AGAINST THE STRUCK EMPLOYER ONLY.  218 F.2D 226. 

THE BOARD'S APPLICATION OF THE DRY DOCK STANDARDS TO PICKETING AT THE
PREMISES OF THE STRUCK EMPLOYER WAS MADE MORE EXPLICIT IN RETAIL FRUIT
& VEGETABLE CLERKS (CRYSTAL PALACE MARKET), 116 N.L.R.B. 856.  THE
OWNER OF A LARGE COMMON MARKET OPERATED SOME OF THE SHOPS WITHIN, AND
LEASED OUT OTHERS TO INDEPENDENT SELLERS.  THE UNION, ALTHOUGH GIVEN
PERMISSION TO PICKET THE OWNER'S INDIVIDUAL STANDS, CHOSE TO PICKET
OUTSIDE THE ENTIRE MARKET.  THE BOARD HELD THAT THIS ACTION WAS
VIOLATIVE OF SEC. 8(B)(4)(A) IN THAT THE UNION DID NOT ATTEMPT TO
MINIMIZE THE EFFECT OF ITS PICKETING, AS REQUIRED IN A COMMON-SITUS
CASE, ON THE OPERATIONS OF THE NEUTRAL EMPLOYERS UTILIZING THE MARKET. 
"WE BELIEVE  ...  THAT THE FOREGOING PRINCIPLES SHOULD APPLY TO ALL
COMMON SITUS PICKETING, INCLUDING CASES WHERE, AS HERE, THE PICKETED
PREMISES ARE OWNED BY THE PRIMARY EMPLOYER."   116 N.L.R.B., AT 859. 
THE RYAN CASE, SUPRA, WAS OVERRULED TO THE EXTENT IT IMPLIED THE
CONTRARY.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT, IN ENFORCING THE
BOARD'S ORDER, SPECIFICALLY APPROVED ITS DISAVOWANCE OF AN OWNERSHIP
TEST.  249 F.2D 591.  THE BOARD MADE CLEAR THAT ITS DECISION DID NOT
AFFECT SITUATIONS WHERE PICKETING WHICH HAD EFFECTS ON NEUTRAL THIRD
PARTIES WHO DEALT WITH THE EMPLOYER OCCURRED AT PREMISES OCCUPIED
SOLELY BY HIM.  "IN SUCH CASES, WE ADHERE TO THE RULE ESTABLISHED BY
THE BOARD  ...  THAT MORE LATITUDE BE GIVEN TO PICKETING AT SUCH
SEPARATE PRIMARY PREMISES THAN AT PREMISES OCCUPIED IN PART (OR
ENTIRELY) BY SECONDARY EMPLOYERS."  116 N.L.R.B., AT 860, N. 10. 

IN REJECTING THE OWNERSHIP TEST IN SITUATIONS WHERE TWO EMPLOYERS
WERE PERFORMING WORK UPON A COMMON SITE, THE BOARD WAS NATURALLY GUIDED
BY THIS COURT'S OPINION IN RICE MILLING, IN WHICH WE INDICATED THAT THE
LOCATION OF THE PICKETING AT THE PRIMARY EMPLOYER'S PREMISES WAS "NOT
NECESSARILY CONCLUSIVE" OF ITS LEGALITY.  341 U.S., AT 671.  WHERE THE
WORK DONE BY THE SECONDARY EMPLOYEES IS UNRELATED TO THE NORMAL
OPERATIONS OF THE PRIMARY EMPLOYER, IT IS DIFFICULT TO PERCEIVE HOW THE
PRESSURE OF PICKETING THE ENTIRE SITUS IS ANY LESS ON THE NEUTRAL
EMPLOYER MERELY BECAUSE THE PICKETING TAKES PLACE AT PROPERTY OWNED BY
THE STRUCK EMPLOYER.  THE APPLICATION OF THE DRY DOCK TESTS TO LIMIT
THE PICKETING EFFECTS TO THE EMPLOYEES OF THE EMPLOYER AGAINST WHOM THE
DISPUTE IS DIRECTED CARRIES OUT THE "DUAL CONGRESSIONAL OBJECTIVES OF
PRESERVING THE RIGHT OF LABOR ORGANIZATIONS TO BRING PRESSURE TO BEAR
ON OFFENDING EMPLOYERS IN PRIMARY LABOR DISPUTES AND OF SHIELDING
UNOFFENDING EMPLOYERS AND OTHERS FROM PRESSURES IN CONTROVERSIES NOT
THEIR OWN."  LABOR BOARD V. DENVER BUILDING COUNCIL, SUPRA, AT 692. 

   III. 

FROM THIS NECESSARY SURVEY OF THE COURSE OF THE BOARD'S TREATMENT OF
OUR PROBLEM, THE PRECISE NATURE OF THE ISSUE BEFORE US EMERGES.  WITH
DUE REGARD TO THE RELATION BETWEEN THE BOARD'S FUNCTION AND THE SCOPE
OF JUDICIAL REVIEW OF ITS RULINGS, THE QUESTION IS WHETHER THE BOARD
MAY APPLY THE DRY DOCK CRITERIA SO AS TO MAKE UNLAWFUL PICKETING AT A
GATE UTILIZED EXCLUSIVELY BY EMPLOYEES OF INDEPENDENT CONTRACTORS WHO
WORK ON THE STRUCK EMPLOYER'S PREMISES.  THE EFFECT OF SUCH A HOLDING
WOULD NOT BAR THE UNION FROM PICKETING AT ALL GATES USED BY THE
EMPLOYEES, SUPPLIERS, AND CUSTOMERS OF THE STRUCK EMPLOYER.  OF COURSE
AN EMPLOYER MAY NOT, BY REMOVING ALL HIS EMPLOYEES FROM THE SITUS OF
THE STRIKE, BAR THE UNION FROM PUBLICIZING ITS CAUSE, SEE LOCAL 618 V.
LABOR BOARD, 249 F.2D 332.  THE BASIS OF THE BOARD'S DECISION IN THIS
CASE WOULD NOT REMOTELY HAVE THAT EFFECT, NOR ANY SUCH TENDENCY FOR THE
FUTURE. 

THE UNION CLAIMS THAT, IF THE BOARD'S RULING IS UPHELD, EMPLOYERS
WILL BE FREE TO ERECT SEPARATE GATES FOR DELIVERIES, CUSTOMERS, AND
REPLACEMENT WORKERS WHICH WILL BE IMMUNIZED FROM PICKETING.  THIS FEAR
IS BASELESS.  THE KEY TO THE PROBLEM IS FOUND IN THE TYPE OF WORK THAT
IS BEING PERFORMED BY THOSE WHO USE THE SEPARATE GATE.  IT IS
SIGNIFICANT THAT THE BOARD HAS SINCE APPLIED ITS RATIONALE, FIRST
STATED IN THE PRESENT CASE, ONLY TO SITUATIONS WHERE THE INDEPENDENT
WORKERS WERE PERFORMING TASKS UNCONNECTED TO THE NORMAL OPERATIONS OF
THE STRUCK EMPLOYER - USUALLY CONSTRUCTION WORK ON HIS BUILDINGS. 
(FN5)  IN SUCH SITUATIONS, THE INDICATED LIMITATIONS ON PICKETING
ACTIVITY RESPECT THE BALANCE OF COMPETING INTERESTS THAT CONGRESS HAS
REQUIRED THE BOARD TO ENFORCE.  ON THE OTHER HAND, IF A SEPARATE GATE
WERE DEVISED FOR REGULAR PLANT DELIVERIES, THE BARRING OF PICKETING AT
THAT LOCATION WOULD MAKE A CLEAR INVASION ON TRADITIONAL PRIMARY
ACTIVITY OF APPEALING TO NEUTRAL EMPLOYEES WHOSE TASKS AID THE
EMPLOYER'S EVERYDAY OPERATIONS.  THE 1959 AMENDMENTS TO THE NATIONAL
LABOR RELATIONS ACT, WHICH REMOVED THE WORD "CONCERTED" FROM THE
BOYCOTT PROVISIONS, INCLUDED A PROVISO THAT "NOTHING CONTAINED IN THIS
CLAUSE (B) SHALL BE CONSTRUED TO MAKE UNLAWFUL, WHERE NOT OTHERWISE
UNLAWFUL, ANY PRIMARY STRIKE OR PRIMARY PICKETING."  29 U.S.C. (SUPP.
I, 1959) SEC. 158(B)(4)(B).  THE PROVISO WAS DIRECTED AGAINST THE FEAR
THAT THE REMOVAL OF "CONCERTED" FROM THE STATUTE MIGHT BE INTERPRETED
SO THAT "THE PICKETING AT THE FACTORY VIOLATES SECTION 8(B)(4)(A)
BECAUSE THE PICKETS INDUCE THE TRUCK DRIVERS EMPLOYED BY THE TRUCKER
NOT TO PERFORM THEIR USUAL SERVICES WHERE AN OBJECT IS TO COMPEL THE
TRUCKING FIRM NOT TO DO BUSINESS WITH THE  ... MANUFACTURER DURING THE
STRIKE."  ANALYSIS OF THE BILL PREPARED BY SENATOR KENNEDY AND
REPRESENTATIVE THOMPSON, 105 CONG. REC. 16589. 

IN A CASE SIMILAR TO THE ONE NOW BEFORE US, THE COURT OF APPEALS FOR
THE SECOND CIRCUIT SUSTAINED THE BOARD IN ITS APPLICATION OF SEC.
8(B)(4)(A) TO A SEPARATE-GATE SITUATION.  "THERE MUST BE A SEPARATE
GATE MARKED AND SET APART FROM OTHER GATES; THE WORK DONE BY THE MEN
WHO USE THE GATE MUST BE UNRELATED TO THE NORMAL OPERATIONS OF THE
EMPLOYER AND THE WORK MUST BE OF A KIND THAT WOULD NOT, IF DONE WHEN
THE PLANT WERE ENGAGED IN ITS REGULAR OPERATIONS, NECESSITATE
CURTAILING THOSE OPERATIONS."  UNITED STEELWORKERS V. LABOR BOARD, 289
F.2D 591, 595, DECIDED MAY 3, 1961.  THESE SEEM TO US CONTROLLING
CONSIDERATIONS. 

                    IV. 

THE FOREGOING COURSE OF REASONING WOULD REQUIRE THAT THE JUDGMENT
BELOW SUSTAINING THE BOARD'S ORDER BE AFFIRMED BUT FOR ONE
CONSIDERATION, EVEN THOUGH THIS CONSIDERATION MAY TURN OUT NOT TO
AFFECT THE RESULT.  THE LEGAL PATH BY WHICH THE BOARD AND THE COURT OF
APPEALS REACHED THEIR DECISIONS DID NOT TAKE INTO ACCOUNT THAT IF GATE
3-A WAS IN FACT USED BY EMPLOYEES OF INDEPENDENT CONTRACTORS WHO
PERFORMED CONVENTIONAL MAINTENANCE WORK NECESSARY TO THE NORMAL
OPERATIONS OF GENERAL ELECTRIC, THE USE OF THE GATE WOULD HAVE BEEN A
MINGLED ONE OUTSIDE THE BAR OF SEC. 8(B)(4)(A).  IN SHORT, SUCH MIXED
USE OF THIS PORTION OF THE STRUCK EMPLOYER'S PREMISES WOULD NOT BAR
PICKETING RIGHTS OF THE STRIKING EMPLOYEES.  WHILE THE RECORD SHOWS
SOME SUCH MINGLED USE, IT SHEDS NO LIGHT ON ITS EXTENT.  IT MAY WELL
TURN OUT TO BE THAT THE INSTANCES OF THESE MAINTENANCE TASKS WERE SO
INSUBSTANTIAL AS TO BE TREATED BY THE BOARD AS DE MINIMIS.  WE CANNOT
HERE GUESS AT THE QUANTITATIVE ASPECT OF THIS PROBLEM.  IT CALLS FOR
BOARD DETERMINATION.  FOR DETERMINATION OF THE QUESTIONS THUS RAISED,
THE CASE MUST BE REMANDED BY THE COURT OF APPEALS TO THE BOARD. 
REVERSED. 

FN1  DURING THE STRIKE IN QUESTION A GUARD WAS STATIONED AT THE
GATE. 

FN2  MEMBER FANNING CONCURRED IN THE RESULT, REASONING THAT THE
COMMON-SITUS CRITERIA SET OUT BY THE BOARD IN SAILORS' UNION OF THE
PACIFIC (MOORE DRY DOCK), 92 N.L.R.B. 547, COULD BE APPLIED TO
SITUATIONS WHERE THE PRIMARY EMPLOYER OWNED THE PREMISES, AND THAT THE
REQUIREMENT THAT THE PICKETING TAKE PLACE REASONABLY CLOSE TO THE SITUS
OF THE LABOR DISPUTE HAD THEREFORE BEEN VIOLATED BY THE PICKETING
AROUND GATE 3-A. 

FN3  SEE ALSO LABOR BOARD V. GENERAL DRIVERS, LOCAL 968, 225 F.2D
205. 

FN4  THE DRY DOCK CRITERIA HAD PERHAPS THEIR WIDEST APPLICATION IN
THE TRUCKING INDUSTRY.  THERE, UNIONS ON STRIKE AGAINST TRUCKERS OFTEN
STAGED PICKETING DEMONSTRATIONS AT THE PLACES OF PICKUP AND DELIVERY. 
COMPARE INTERNATIONAL BROTHERHOOD OF TEAMSTERS (SCHULTZ REFRIGERATED
SERVICE, INC.), 87 N.L.R.B. 502, WITH INTERNATIONAL BROTHERHOOD OF
TEAMSTERS (STERLING BEVERAGES, INC.), 90 N.L.R.B. 401.    FN5  UNITED
STEELWORKERS (PHELPS DODGE REFINING CORP.), 126 N.L.R.B. 1367;
INTERNATIONAL CHEMICAL WORKERS UNION (VIRGINIA-CAROLINA CHEMICAL
CORP.), 126 N.L.R.B. 905; SEE UNION DE TRABAJADORES (GONZALES CHEMICAL
INDUSTRIES, INC.), 128 N.L.R.B. NO. 116. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK CONCUR IN THE RESULT. 

MR. JUSTICE DOUGLAS. 

I DID NOT VOTE TO GRANT CERTIORARI IN THIS CASE BECAUSE IT SEEMED TO
ME THAT THE PROBLEM PRESENTED WAS IN THE KEEPING OF THE COURTS OF
APPEALS WITHIN THE MEANING OF UNIVERSAL CAMERA CORP. V. LABOR BOARD,
340 U.S. 474, 490.  SINCE THE COURT OF APPEALS FOLLOWED THE GUIDELINES
OF THAT CASE (SEE 278 F.2D 282, 286), I WOULD LEAVE THE DECISION WITH
IT.  I CANNOT SAY IT MADE ANY EGREGIOUS ERROR, THOUGH I MIGHT HAVE
DECIDED THE CASE DIFFERENTLY HAD I SAT ON THE LABOR BOARD OR ON THE
COURT OF APPEALS. 
..END :












SAM FOX PUBLISHING CO. V. UNITED STATES 366 U.S. 683 


NO. 56.  ARGUED MARCH 29-30, 1961 - DECIDED MAY 29, 1961 - APPEAL
DISMISSED. 


UNDER THE EXPEDITING ACT, 15 U.S.C. SEC. 29, APPELLANTS, WHO WERE
SMALL MUSIC PUBLISHERS, APPEALED DIRECTLY TO THIS COURT FROM AN ORDER
OF A FEDERAL DISTRICT COURT DENYING THEIR MOTIONS UNDER RULE 24(A)(2)
OF THE FEDERAL RULES OF CIVIL PROCEDURE TO INTERVENE AS OF RIGHT IN A
PROCEEDING BY THE GOVERNMENT TO MODIFY A CONSENT DECREE PREVIOUSLY
ENTERED IN A GOVERNMENT SUIT UNDER SEC. 1 OF THE SHERMAN ACT AGAINST AN
UNINCORPORATED ASSOCIATION OF MUSIC WRITERS AND PUBLISHERS (OF WHICH
APPELLANTS WERE MEMBERS), WHICH TOOK LICENSES TO THE WORKS OF ITS
MEMBERS, LICENSED SUCH WORKS FOR PUBLIC PERFORMANCE AND DISTRIBUTED THE
RESULTING REVENUES AMONG ITS MEMBERS.  THE GOVERNMENT HAD PROPOSED
MODIFICATION OF THE DECREE TO IMPROVE PROVISIONS FOR DEMOCRATIC
ELECTIONS OF THE GOVERNING BOARD BY MEMBERSHIP VOTE AND FOR AN
EQUITABLE DISTRIBUTION OF REVENUES, AND APPELLANTS CONTENDED THAT THE
MODIFICATIONS PROPOSED DID NOT GO FAR ENOUGH TOWARDS AMELIORATING THE
POSITION OF THE SMALL PUBLISHERS AS AGAINST A FEW LARGE PUBLISHERS WHO
ALLEGEDLY DOMINATED THE ASSOCIATION.  HELD: APPELLANTS WERE NOT BOUND
BY THE PARTS OF THE DECREE AS TO WHICH THEY SOUGHT INTERVENTION; THEY
WERE NOT ENTITLED TO INTERVENE AS OF RIGHT; THE ORDER DENYING
INTERVENTION WAS NOT APPEALABLE; AND THE APPEAL IS DISMISSED.  PP. 684
695. 

(A)  IF APPELLANTS' INTERESTS ARE DEEMED ALIGNED WITH THE PUBLIC
INTEREST IN THIS CASE, THEY WOULD NOT BE BOUND BY THE OUTCOME OF THE
GOVERNMENT ANTITRUST LITIGATION OR PRECLUDED FROM ENFORCING THEIR
RIGHTS THROUGH PRIVATE LITIGATION.  THEREFORE, THEY WERE NOT ENTITLED
TO INTERVENE AS OF RIGHT, AND THE ORDER DENYING INTERVENTION WAS NOT
APPEALABLE.  PP. 688-690. 

(B)  THOUGH THE GOVERNMENT'S SUIT WAS AGAINST THE UNINCORPORATED
ASSOCIATION BOTH AS AN ENTITY AND AS A REPRESENTATIVE OF ITS MEMBERS,
AND APPELLANTS MAY BE BOUND BY THE DECREE INSOFAR AS IT DEALS WITH THE
EXTERNAL AFFAIRS OF THE ASSOCIATION, THEY ARE NOT BOUND BY ITS
PROVISIONS PERTAINING TO THE INTERNAL AFFAIRS OF THE ASSOCIATION, AS TO
WHICH THEIR INTERESTS ARE ADVERSE TO THOSE OF THE ASSOCIATION'S
GOVERNING BOARD AND COULD NOT BE ADEQUATELY REPRESENTED BY IT.  PP. 690
693. 

(C)  IT WAS NOT NECESSARY FOR THE DISTRICT COURT TO HOLD A HEARING IN
ORDER TO DETERMINE TO WHAT EXTENT APPELLANTS' INTERESTS DIVERGED FROM
THOSE ASSERTED BY THE ASSOCIATION, SINCE THE RECORD SHOWS THAT
APPELLANTS' INTERESTS COULD NOT BE CONSIDERED TO BE ADEQUATELY
REPRESENTED BY THE ASSOCIATION WITH RESPECT TO ITS INTERNAL AFFAIRS,
AND THEREFORE THEY COULD NOT BE BOUND BY THE DECREE.  PP. 693-694. 

(D)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT, EVEN IF
APPELLANTS ARE NOT LEGALLY PRECLUDED FROM BRINGING A PRIVATE SUIT,
NEVERTHELESS THE VERY EXISTENCE OF THE DECREE IN THE GOVERNMENT'S SUIT
MIGHT, AS A MATTER OF COMITY, LIMIT THE RELIEF WHICH SOME FUTURE EQUITY
COURT WOULD DECREE.  PP. 694-695. 

SAM FOX PUBLISHING CO., INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS, PROCEEDING UNDER THE EXPEDITING ACT, 15 U.S.C. SEC.
29, APPEAL DIRECTLY TO THIS COURT FROM AN ORDER OF THE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK DENYING THEIR MOTIONS TO
INTERVENE AS OF RIGHT IN A PROCEEDING TO MODIFY A CONSENT DECREE
PREVIOUSLY ENTERED IN A GOVERNMENT ANTITRUST SUIT.  THE APPELLANTS WERE
NOT NAMED AS PARTIES EITHER IN THE SUIT OR MODIFICATION PROCEEDING. 
(FN1)  THE MOTIONS WERE MADE PURSUANT TO RULE 24, SUBDIVISION (A)(2) OF
THE FEDERAL RULES OF CIVIL PROCEDURE.  (FN2) 

THE MATTER ARISES IN THE FOLLOWING SETTING:  IN 1941 THE UNITED
STATES BROUGHT SUIT UNDER SEC. 1 OF THE SHERMAN ACT, 15 U.S.C. SEC. 1,
AGAINST THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS
(ASCAP), AN UNINCORPORATED ASSOCIATION OF WHICH APPELLANTS ARE MEMBERS,
AND CERTAIN OF ITS OFFICERS.  THE SOCIETY AND THE DEFENDANT OFFICERS
BESIDES BEING NAMED AS AN ENTITY AND INDIVIDUALS, RESPECTIVELY, WERE
ALSO SUED AS REPRESENTATIVES OF ALL MEMBERS OF THE SOCIETY.  THE
SOCIETY, COMPRISING SOME 6,400 WRITERS AND PUBLISHERS OF MUSICAL
COMPOSITIONS, WAS ORGANIZED TO TAKE NONEXCLUSIVE LICENSES TO THE WORKS
OF ITS MEMBERS, TO LICENSE SUCH WORKS OUT FOR PUBLIC PERFORMANCE, AND
TO DISTRIBUTE AMONG THE MEMBERS THE REVENUES RESULTING THEREFROM.  THE
THREE APPELLANTS ARE AMONG THE SOCIETY'S PUBLISHER MEMBERS. 

THE GOVERNMENT'S COMPLAINT IN THE ACTION WAS AIMED AT TWO DISTINCT
TYPES OF ANTITRUST VIOLATION: (1) ALLEGED RESTRAINT OF TRADE ARISING
OUT OF ASCAP'S MODE OF DEALING WITH OUTSIDERS DESIRING LICENSES OF
COMPOSITIONS IN THE SOCIETY'S CATALOGUE; AND (2) ALLEGED RESTRAINT OF
COMPETITION AMONG THE SOCIETY'S MEMBERS INTER SESE, RESULTING FROM THE
ASSERTED DOMINATION OF THE SOCIETY'S AFFAIRS BY A FEW OF ITS LARGE
PUBLISHER MEMBERS WHO, IT WAS CLAIMED, WERE ABLE TO CONTROL THE
COMPLEXION OF THE BOARD OF DIRECTORS AND THE APPORTIONMENT OF THE
SOCIETY'S REVENUES.  AS TO THE LATTER TYPE OF RESTRAINT, THE PRAYER FOR
RELIEF SOUGHT TO INSURE (A) THAT BOARD ELECTIONS BE BY NO METHOD "OTHER
THAN BY A MEMBERSHIP VOTE IN WHICH ALL  ...  MEMBERS SHALL HAVE THE
RIGHT TO VOTE," AND (B) THAT THE DISTRIBUTION OF REVENUE TO MEMBERS
SHOULD BE ON A "FAIR AND NON-DISCRIMINATORY" BASIS.  IT IS APPARENT
FROM THE RECORD THAT APPELLANTS' PARTICULAR INTERESTS IN THE SUIT
RELATED ENTIRELY TO THE SECOND ASPECT OF THE GOVERNMENT'S CHARGES, THAT
IS THOSE INVOLVING THE SOCIETY'S INTERNAL AFFAIRS, AND THAT THEIR
MOTIONS TO INTERVENE WERE SO DIRECTED. 

DURING THE SAME YEAR IN WHICH THE SUIT WAS BROUGHT IT WAS SETTLED BY
A CONSENT DECREE, APPROVED BY THE DISTRICT COURT.  IN ADDITION TO
PROVISIONS DEALING WITH WHAT MAY BE CALLED THE SOCIETY'S EXTERNAL
AFFAIRS, THE DECREE, IN BROAD TERMS, CONTAINED REQUIREMENTS FOR BOARD
ELECTIONS BY MEMBERSHIP VOTE AND FOR REVENUE DISTRIBUTIONS ON AN
EQUITABLE BASIS.  SUBSEQUENT TO THE DECREE, BOTH THE VOTE OF THE
MEMBERS AND THEIR SHARE OF LICENSE REVENUES WERE ACCORDED ON A WEIGHTED
BASIS RELATIVE TO THE PARTICULAR MEMBER'S CONTRIBUTION TO THE REVENUE
PRODUCING VALUE OF ALL MEMBERS' CONTRIBUTION TO THE SOCIETY'S
CATALOGUE, ALL AS DETERMINED BY THE BOARD OF DIRECTORS.  IN 1950,
PURSUANT TO A RESERVATION-OF-JURISDICTION CLAUSE IN THE 1941 DECREE, A
MODIFICATION OF THE ORIGINAL DECREE WAS EFFECTED AT THE INSTANCE OF THE
GOVERNMENT.  THE MODIFIED DECREE ORDERED, AMONG OTHER THINGS, THAT "IN
ORDER TO INSURE A DEMOCRATIC ADMINISTRATION OF THE AFFAIRS OF DEFENDANT
ASCAP  ... (THE COMPOSITION OF THE) BOARD OF DIRECTORS SHALL, AS FAR AS
PRACTICABLE, GIVE REPRESENTATION TO WRITER MEMBERS AND PUBLISHER
MEMBERS WITH DIFFERENT PARTICIPATIONS IN ASCAP'S REVENUE DISTRIBUTIONS
...  ." 

IN 1959, THIS SAME CONCERN FOR "DEMOCRATIC ADMINISTRATION OF THE
INTERNAL AFFAIRS" OF ASCAP AND FOR AN EQUITABLE DISTRIBUTION OF LICENSE
REVENUES LED THE GOVERNMENT TO PRESS FOR FURTHER AMENDMENTS TO THE
DECREE.  IN 1960 THIS RESULTED IN ADDITIONAL COURT-APPROVED
MODIFICATIONS WHICH, IT IS APPARENT, REPRESENTED A SUBSTANTIAL
IMPROVEMENT OVER THE EARLIER PROVISIONS RELATING TO THE BOARD ELECTIONS
AND THE APPORTIONMENT OF REVENUES.  CONTENDING THAT THE PROPOSED
MODIFICATIONS DID NOT GO FAR ENOUGH TOWARDS AMELIORATING THE POSITION
OF THE SMALL PUBLISHERS AS AGAINST THE FEW LARGE PUBLISHERS,
APPELLANTS, PRIOR TO THE ADOPTION OF THE MODIFIED DECREE, BROUGHT THE
INTERVENTION MOTIONS NOW BEFORE US.  THE DISTRICT COURT DENIED LEAVE TO
INTERVENE WITHOUT OPINION, STATING IN ITS ORDER: 

"  ...  REPRESENTATION OF THE PUBLIC AND THE APPLICANTS BY THE
DEPARTMENT OF JUSTICE WAS ADEQUATE AND IN THE PUBLIC INTEREST; ...
APPLICANTS ARE MEMBERS OF AND ARE REPRESENTED BY THE SOCIETY WITH THEIR
CONSENT; ...  APPLICANTS HAVE PERMITTED THIS CAUSE IN WHICH THEY ARE
NOT NAMED AS PARTIES TO PROCEED TO JUDGMENT; AND  ...  IT WOULD NOT
PROMOTE THE INTERESTS OF THE ADMINISTRATION OF JUSTICE TO PERMIT THE
REQUESTED INTERVENTION  ...  ." 

THEREAFTER THE DISTRICT COURT ENTERED A JUDGMENT APPROVING THE
PROPOSED MODIFICATIONS TO THE EXISTING CONSENT DECREE.  APPELLANTS DO
NOT APPEAL FROM THAT JUDGMENT, BUT ONLY FROM THE ORDER DENYING THEIR
MOTIONS TO INTERVENE AS OF RIGHT.  WE POSTPONED CONSIDERATION OF THE
QUESTION OF JURISDICTION TO THE HEARING OF THE CASE ON THE MERITS.  362
U.S. 986. 

AS THE GOVERNMENT AND APPELLANTS CORRECTLY AGREE, THE CONTROLLING
QUESTION ON THE ISSUE OF JURISDICTION, THE ANSWER TO WHICH ALSO
DETERMINES THE MERITS OF THIS APPEAL, IS WHETHER THE APPELLANTS WERE
ENTITLED TO INTERVENE IN THESE PROCEEDINGS AS "OF RIGHT."  SUTPHEN
ESTATES, INC., V. UNITED STATES, 342 U.S. 19, WHERE THE COURT SAID:
"IF APPELLANT MAY INTERVENE AS OF RIGHT, THE ORDER OF THE COURT DENYING
INTERVENTION IS APPEALABLE."  ID., P. 20.  THAT CASE REQUIRES REJECTION
OF ASCAP'S SEPARATE CONTENTION THAT THE ORDER BELOW WAS NOT APPEALABLE
BECAUSE NOT FINAL, (FN3) AND ALSO ITS FURTHER CONTENTION THAT APPELLATE
REVIEW OF INTERVENTION HAS BECOME MOOT, IN THAT NO APPEAL WAS TAKEN
FROM THE JUDGMENT EVENTUATING FROM THE PROCEEDINGS IN WHICH
INTERVENTION WAS SOUGHT.  THE LATTER CONTENTION IS BASED ON THE
ERRONEOUS HYPOTHESIS THAT REVIEW OF THE INTERVENTION ORDER WAS
OBTAINABLE ONLY IN CONNECTION WITH AN APPEAL FROM SUCH JUDGMENT. 

THE DETERMINATIVE QUESTION - WHETHER APPELLANTS WERE ENTITLED TO
INTERVENE AS "OF RIGHT" - DEPENDED UPON THEIR SHOWING BOTH THAT "THE
REPRESENTATION OF" THEIR "INTEREST BY EXISTING PARTIES" TO THE CONSENT
JUDGMENT MODIFICATION PROCEEDING WAS OR MIGHT "BE INADEQUATE," AND THAT
THEY WOULD OR MIGHT "BE BOUND BY THE JUDGMENT" IN SUCH PROCEEDING.  SEE
NOTE 2, SUPRA.

               I. 

APPELLANTS FIRST CONTEND THAT THE REPRESENTATION OF THEIR INTERESTS
BY THE GOVERNMENT HAS PROVEN INADEQUATE.  ALTHOUGH THE MOST RECENT
DECREE REDUCED AND LIMITED THE BOARD REPRESENTATION OF THE 10 LARGEST
PUBLISHERS AND PROVIDED FOR A METHOD OF REVENUE APPORTIONMENT MORE
FAVORABLE THAN THAT OF THE PAST TO THE SMALLER AND LESS WELL
ESTABLISHED SOCIETY MEMBERS, APPELLANTS' CONTENTION IS THAT THIS
AMELIORATION OF THEIR POSITION IS NOT ADEQUATE TO BREAK THE CONTROL OF
THE LARGER PUBLISHERS, AND THEREFORE THE GOVERNMENT'S REPRESENTATION
WAS OR MAY HAVE BEEN INADEQUATE. 

APART FROM ANYTHING ELSE, SOUND POLICY WOULD STRONGLY LEAD US TO
DECLINE APPELLANTS' INVITATION TO ASSESS THE WISDOM OF THE GOVERNMENT'S
JUDGMENT IN NEGOTIATING AND ACCEPTING THE 1960 CONSENT DECREE, AT LEAST
IN THE ABSENCE OF ANY CLAIM OF BAD FAITH OR MALFEASANCE ON THE PART OF
THE GOVERNMENT IN SO ACTING.  HOWEVER, WE NEED NOT REACH THE QUESTION
OF THE ADEQUACY OF THE GOVERNMENT'S REPRESENTATION OF THE APPELLANTS'
INTERESTS BECAUSE, AS HEREAFTER SHOWN, IT IS IN ANY EVENT CLEAR THAT
APPELLANTS ARE NOT BOUND BY THE CONSENT JUDGMENT IN THESE PROCEEDINGS,
IF THEIR POSITION IN THIS LITIGATION IS DEEMED AS ALIGNED WITH THAT OF
THE GOVERNMENT.  SEE UNITED STATES V. COLUMBIA GAS & ELECTRIC CORP., 27
F. SUPP. 116, 119. 

WE REGARD IT AS FULLY SETTLED THAT A PERSON WHOSE PRIVATE INTERESTS
COINCIDE WITH THE PUBLIC INTEREST IN GOVERNMENT ANTITRUST LITIGATION IS
NONETHELESS NOT BOUND BY THE EVENTUALITY OF SUCH LITIGATION, AND HENCE
MAY NOT, AS OF RIGHT, INTERVENE IN IT.  IN UNITED STATES V. BORDEN CO.,
347 U.S. 514, IT WAS RULED THAT IT WAS AN ABUSE OF DISCRETION FOR THE
DISTRICT COURT TO REFUSE THE GOVERNMENT AN INJUNCTION AGAINST CERTAIN
ACTS HELD VIOLATIVE OF THE ANTITRUST LAWS, EVEN THOUGH THE SAME ACTS
HAD ALREADY BEEN ENJOINED IN A PRIVATE SUIT.  IT WAS THERE STATED IN
CLEAREST TERMS THAT "PRIVATE AND PUBLIC ACTIONS WERE DESIGNED TO BE
CUMULATIVE, NOT MUTUALLY EXCLUSIVE" (ID., AT 518), AND, QUOTING FROM
UNITED STATES V. BENDIX HOME APPLIANCES, 10 F.R.D. 73, 77, "'  ...  THE
SCHEME OF THE STATUTE IS SHARPLY TO DISTINGUISH BETWEEN GOVERNMENT
SUITS, EITHER CRIMINAL OR CIVIL, AND PRIVATE SUITS FOR INJUNCTIVE
RELIEF OR FOR TREBLE DAMAGES.  DIFFERENT POLICY CONSIDERATIONS GOVERN
EACH OF THESE.  THEY MAY PROCEED SIMULTANEOUSLY OR IN DISREGARD OF EACH
OTHER.'"  ID., AT 518-519. 

THIS PRINCIPLE IS CERTAINLY BROAD ENOUGH TO MAKE IT CLEAR THAT JUST
AS THE GOVERNMENT IS NOT BOUND BY PRIVATE ANTITRUST LITIGATION TO WHICH
IT IS A STRANGER, SO PRIVATE PARTIES, SIMILARLY SITUATED, ARE NOT BOUND
BY GOVERNMENT LITIGATION.  SEE UNITED STATES V. GENERAL ELECTRIC CO.,
95 F. SUPP. 165; UNITED STATES V. COLUMBIA GAS & ELECTRIC CORP., SUPRA;
UNITED STATES V. RADIO CORPORATION, 3 F. SUPP. 23; UNITED STATES V.
BENDIX HOME APPLIANCES, SUPRA; CF. UNITED STATES V. LOEW'S, INC., 136
F. SUPP. 13.  INDEED SEC. 5 OF THE CLAYTON ACT, MAKING AN ADJUDICATION
OF LIABILITY IN A GOVERNMENT ANTITRUST SUIT PRIMA FACIE EVIDENCE OF
LIABILITY IN A SEC. 4 PRIVATE SUIT, WOULD SEEM TO BE A DEFINITIVE
LEGISLATIVE PRONOUNCEMENT THAT A GOVERNMENT SUIT CANNOT BE PRECLUSIVE
OF PRIVATE LITIGATION, EVEN THOUGH RELATING TO THE SAME SUBJECT
MATTER. 

REGARDING APPELLANTS' POSITION IN THE CASE FROM THIS ASPECT, WE
CONCLUDE THAT THEY ARE NOT ENTITLED TO INTERVENE AS OF RIGHT.  SEE
ALLEN CALCULATORS, INC., V. NATIONAL CASH REGISTER CO., 322 U.S. 137,
140-141. 

                                     II. 

THE CONTENTION OF THE APPELLANTS THAT THEY ARE ENTITLED TO INTERVENE
BECAUSE AS MEMBERS OF ASCAP THEY MIGHT BE BOUND BY ASCAP'S
REPRESENTATION OF THEIR INTERESTS PRESENTS A MORE DIFFICULT QUESTION. 
THEIR CLAIM IS THAT THE SOCIETY, ACTING THROUGH ITS BOARD OF DIRECTORS,
COULD NOT ADEQUATELY REPRESENT THEIR INTERESTS AS SMALL PUBLISHERS,
WHOSE VERY CLAIM IS THAT THEY ARE CAUGHT BETWEEN THE PRACTICAL NEED TO
REMAIN IN THE SOCIETY AND THE IMPOSSIBILITY OF OBTAINING ADEQUATE
REPRESENTATION ON THE BOARD OF DIRECTORS WHICH DETERMINES BOTH THE
WEIGHTING OF VOTES IN BOARD ELECTIONS AND THE DISTRIBUTION OF SOCIETY
REVENUES.  SINCE THE BOARD, WHICH NEGOTIATED THE PRESENT CONSENT
JUDGMENT WITH THE UNITED STATES, REPRESENTS, IN THE WORDS OF THE
GOVERNMENT'S COMPLAINT, THE CORE OF THE VERY "UNLAWFUL COMBINATION AND
CONSPIRACY" AGAINST WHICH APPELLANTS SEEK ANTITRUST RELIEF, IT IS
HARDLY DOUBTFUL, TAKING, AS WE THINK WE SHOULD, THE RECORD BEFORE US AT
FACE VALUE, THAT ASCAP, ACTING THROUGH ITS BOARD, CANNOT IN LAW BE
DEEMED ADEQUATELY TO REPRESENT APPELLANTS' DISCRETE INTERESTS ASSERTED
AGAINST THE BOARD. 

BUT BEFORE THE INADEQUACY OF ASCAP'S REPRESENTATION OF APPELLANTS'
INTERESTS IN THE CONSENT DECREE NEGOTIATIONS CAN GIVE RISE TO A RIGHT
OF INTERVENTION, APPELLANTS MUST FURTHER DEMONSTRATE THAT THEY ARE OR
MAY BE BOUND BY THE JUDGMENT ON THE LITIGATION.  ON THIS SCORE
APPELLANTS ARGUE THAT AS "CLASS" DEFENDANTS THEY ARE BOUND BY THE
CONSENT JUDGMENT AGAINST ASCAP, AN UNINCORPORATED ASSOCIATION, WHICH
WAS SUED BOTH AS AN ENTITY (FED. RULES CIV. PROC., 17(B)) AND AS
REPRESENTING ALL THE SOCIETY'S MEMBERS (FED. RULES CIV. PROC.,
23(A)(1)).  SEE TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN, 148 F.2D 403. 

IN SO ARGUING, APPELLANTS, HOWEVER, FACE THIS DILEMMA:  THE JUDGMENT
IN A CLASS ACTION WILL BIND ONLY THOSE MEMBERS OF THE CLASS WHOSE
INTERESTS HAVE BEEN ADEQUATELY REPRESENTED BY EXISTING PARTIES TO THE
LITIGATION, HANSBERRY V. LEE, 311 U.S. 32; YET INTERVENTION AS OF RIGHT
PRESUPPOSES THAT AN INTERVENOR'S INTERESTS ARE OR MAY NOT BE SO
REPRESENTED.  THUS APPELLANTS' ARGUMENT AS TO A DIVERGENCE OF INTERESTS
BETWEEN THEMSELVES AND ASCAP PROVES TOO MUCH, FOR TO THE EXTENT THAT IT
IS VALID APPELLANTS SHOULD NOT BE CONSIDERED AS MEMBERS OF THE SAME
CLASS AS THE PRESENT DEFENDANTS, AND THEREFORE ARE NOT "BOUND."  ON THE
OTHER HAND, IF APPELLANTS ARE BOUND BY ASCAP'S REPRESENTATION OF THE
CLASS, IT CAN ONLY BE BECAUSE THAT REPRESENTATION HAS BEEN ADEQUATE,
PRECLUDING ANY RIGHT TO INTERVENE.  IT WOULD INDEED BE STRANGE
PROCEDURE TO DECLARE, ON ONE HAND, THAT ASCAP ADEQUATELY REPRESENTS THE
INTERESTS OF THE APPELLANTS AND HENCE THAT THIS IS PROPERLY A CLASS
SUIT, AND THEN, ON THE OTHER HAND, TO REQUIRE INTERVENTION IN ORDER TO
INSURE OF THIS REPRESENTATION IN FACT.  THE CASES ESTABLISHING THE
PRINCIPLE OF CLASS SUITS, SMITH V. SWORMSTEDT, 16 HOW.  288; SUPREME
TRIBE OF BEN-HUR V. CAUBLE, 255 U.S. 356; AND SEE HANSBERRY V. LEE,
SUPRA, PRESENT NO SUCH SITUATION AND REQUIRE NO SUCH RESULT.    ANY
DOUBT THAT MAY EXIST IN THIS CASE IS DISPELLED ONCE IT IS RECOGNIZED
THAT THE GOVERNMENT'S ORIGINAL COMPLAINT ALLEGED TWO DIFFERENT TYPES OF
ANTITRUST VIOLATIONS, TWO DIFFERENT ILLEGAL COMBINATIONS.  IT IS
DOUBTLESS TRUE THAT APPELLANTS, THROUGH THEIR MEMBERSHIP IN ASCAP, ARE
OR "MAY BE" BOUND BY THE CONSENT JUDGMENT INSOFAR AS IT DEALS WITH THE
EXTERNAL AFFAIRS OF THE SOCIETY; NOR IS THERE ANY CLAIM ON THIS SCORE
THAT ASCAP'S REPRESENTATION WAS NOT FULLY ADEQUATE.  (FN4)  IT DOES NOT
FOLLOW FROM THIS, HOWEVER, AS TO THE OTHER ALLEGED ANTITRUST
VIOLATIONS, WHICH ARE OF AN ENTIRELY DIFFERENT NATURE, INVOLVING THE
INTERESTS OF THE MEMBERS INTER SESE, THAT THE SOCIETY ITSELF IS A VALID
UNITARY REPRESENTATIVE FOR THIS PURPOSE ALSO, CONTAINING AS IT DOES THE
PRINCIPAL FACTIONS IN THE INTERNECINE DISPUTE.  CF. OWEN V. PARAMOUNT
PRODUCTIONS, 41 F. SUPP. 557.  OR, PUT DIFFERENTLY, AS TO ANY CLAIMS OR
DEFENSES WHICH APPELLANTS HAVE AGAINST THE GOVERNMENT THE
REPRESENTATION OF ASCAP IS ENTIRELY ADEQUATE, AND AS TO ANY CLAIMS
WHICH THEY MAY HAVE AGAINST ASCAP THERE IS NOTHING TO REQUIRE
APPELLANTS TO BRING THEM INTO THIS LITIGATION, SIMPLY BECAUSE THEY ARE
"BOUND" FOR OTHER PURPOSES.  CF. FED. RULES CIV. PROC., 13(G). 

TURNING TO THE ORDER OF THE DISTRICT COURT, ITS REMARKS THAT THE
APPELLANTS AS "MEMBERS OF THE DEFENDANT SOCIETY  ...  SURRENDERED  ...
THEIR RIGHT TO INTERVENE AS INDIVIDUALS," (R.295) AND THAT THEY "ARE
MEMBERS OF AND ARE REPRESENTED BY THE SOCIETY WITH THEIR CONSENT," ARE
SUSCEPTIBLE OF TWO INTERPRETATIONS.  IF THE COURT WAS REFERRING SIMPLY
TO THE ASSERTEDLY REPRESENTATIVE NATURE OF THE SUIT, ITS VIEW WAS NO
DIFFERENT FROM THE APPELLANTS' CONTENTION DISCUSSED ABOVE, AND THE
ANSWER TO IT IS ALSO THE SAME.  THE PURPORT OF THE ORDER, HOWEVER,
APPEARS TO HAVE BEEN, AS THE DISTRICT COURT ELSEWHERE INTIMATED, THAT
QUITE APART FROM THE ACTUAL DIVERGENCE OF INTEREST AND POSITION BETWEEN
ASCAP AND APPELLANTS, THE CONTRACTUAL AND ASSOCIATIONAL RELATION
BETWEEN THE SOCIETY AND ITS MEMBERS, INTO WHICH THEY WERE FREE TO ENTER
AND FROM WHICH THEY WERE FREE TO WITHDRAW, AT LEAST SO FAR AS THE LAW
IS CONCERNED, BOTH BOUND APPELLANTS AS PRIVIES TO THIS JUDGMENT AND
PRECLUDED ANY CLAIM OF INADEQUATE REPRESENTATION.  WITH RESPECT, WE
THINK THIS BEGS THE QUESTION, FOR APPELLANTS' ANTITRUST CLAIM IS
PRECISELY THAT, ON THE ONE HAND, THEY HAVE NO PRACTICAL CHOICE BUT TO
REMAIN IN THE SOCIETY AND, ON THE OTHER, THAT THE DOMINANCE OF THE
LARGE PUBLISHERS WITHIN THE SOCIETY RESTRICTS THE COMPETITIVE
OPPORTUNITIES IN THE INDUSTRY. 

IN SUM, THERE IS NOTHING IN THE RELATIONSHIP OF APPELLANTS TO ASCAP
TO REQUIRE US TO SUBVERT HERE THE UNQUESTIONABLY SOUND POLICY OF NOT
PERMITTING PRIVATE ANTITRUST PLAINTIFFS TO PRESS THEIR CLAIMS AGAINST
ALLEGED VIOLATORS IN THE SAME SUIT AS THE GOVERNMENT:  THERE IS NO
CLAIM OR DEFENSE WHICH APPELLANTS HAVE AGAINST THE GOVERNMENT AS TO
WHICH THEY ARE NOT ADEQUATELY REPRESENTED BY ASCAP, AND NO RULE OR
POLICY REQUIRING THEM TO PRESS THEIR CLAIM AGAINST ASCAP IN THIS
GOVERNMENT LITIGATION. 

                              III. 

THERE ARE TWO REMAINING ARGUMENTS WHICH MAY BE DISPOSED OF MORE
BRIEFLY.  FIRST, IT IS SAID THAT THE DISTRICT COURT SHOULD AT LEAST
HAVE HELD A HEARING IN ORDER TO DETERMINE TO WHAT EXTENT APPELLANTS'
INTERESTS DIVERGED FROM THOSE ASSERTED HERE BY ASCAP.  WE PERCEIVE NO
OCCASION FOR SUCH A PROCEDURE, FOR WE THINK THAT THE PRESENT RECORD
ALREADY SHOWS THAT AS RESPECTS THE PHASE OF THIS CASE WHICH RELATES TO
THE SOCIETY'S INTERNAL AFFAIRS, THE POSITION WHICH THE APPELLANTS
ASSERT IN FAVOR OF AN EXPANDED DECREE CANNOT BE DEEMED IN LAW TO BE
ADEQUATELY REPRESENTED BY ASCAP OR ANY OF THE OTHER DEFENDANTS, AND
HENCE THAT THE CONSENT JUDGMENT IN THIS RESPECT CAN HAVE NO BINDING
EFFECT AGAINST APPELLANTS. 

SECOND, APPELLANTS ARGUE THAT EVEN SHOULD THEY NOT BE LEGALLY
PRECLUDED FROM BRINGING A PRIVATE ACTION, NEVERTHELESS THE VERY
EXISTENCE OF THE OUTSTANDING DECREE WOULD AS A MATTER OF COMITY EITHER
PRECLUDE FURTHER RELIEF OR OPERATE TO LIMIT THE RELIEF SOME FUTURE
EQUITY COURT MIGHT DECREE.  ALTHOUGH THERE IS NO REASON WHY SUCH A
COURT NEED CONSIDER THE PRESENT DECREE AS ANYTHING BUT A MINIMUM
TOWARDS INSURING BROADER REPRESENTATION AND MORE FAVORABLE INCOME
DISTRIBUTION SHOULD A CLAIM FOR FURTHER RELIEF BE MADE OUT, THERE IS
CONSIDERABLE WEIGHT TO THE ARGUMENT THAT THE COURT WILL FEEL
CONSTRAINED AS A MATTER OF COMITY AT LEAST TO BUILD ON THE FOUNDATIONS
OF THE PRESENT DECREE.  CF. UNITED STATES V. RADIO CORPORATION, 3 F.
SUPP. 23.  HOWEVER, IT IS ABUNDANTLY CLEAR THAT THIS EFFECT IS NOT AL
ALL THE EQUIVALENT OF BEING LEGALLY BOUND, WHICH IS WHAT MUST BE MADE
OUT BEFORE A PARTY MAY INTERVENE AS OF RIGHT.  SEE CREDITS COMMUTATION
CO. V. UNITED STATES, 177 U.S. 311; SUTPHEN ESTATES, INC., V. UNITED
STATES, SUPRA; CAMERON V. PRESIDENT AND FELLOWS OF HARVARD COLLEGE, 157
F.2D 993; JEWELL RIDGE COAL CORP. V. LOCAL NO. 6167, 3 F.R.D. 251. 
INDEED, APPELLANTS' CONTENTION ON THIS SCORE IS INDISTINGUISHABLE FROM
THAT OF ANY PRIVATE LITIGANT WHOSE INTERESTS ARE INVOLVED IN GOVERNMENT
ANTITRUST LITIGATION.  AS WE HAVE ALREADY SAID, NO RIGH OF INTERVENTION
AS A PARTY PLAINTIFF EXISTS IN THAT INSTANCE. 

INASMUCH AS THE APPELLANTS ARE NOT, NOR MAY BE, BOUND BY THE JUDGMENT
BELOW IN THE ASPECTS OF THE CASE WITH RESPECT TO WHICH THEY SOUGHT
INTERVENTION, THEIR APPLICATION TO INTERVENE AS OF RIGHT WAS PROPERLY
DENIED AND THE APPEAL IS DISMISSED. 

FN1  BESIDES SAM FOX PUBLISHING COMPANY THERE ARE TWO OTHER
APPELLANTS, PLEASANT MUSIC PUBLISHING COMPANY AND JEFFERSON MUSIC
COMPANY, WHO, LIKE SAM FOX, ARE MUSIC PUBLISHERS.  ALTHOUGH MOVIETONE
MUSIC CORPORATION ALSO APPEALED, IT DID NOT APPEAR IN THIS COURT. 

FN2  "(A) INTERVENTION OF RIGHT.  UPON TIMELY APPLICATION ANYONE
SHALL BE PERMITTED TO INTERVENE IN AN ACTION:  ...  (2) WHEN THE
REPRESENTATION OF THE APPLICANT'S INTEREST BY EXISTING PARTIES IS OR
MAY BE INADEQUATE AND THE APPLICANT IS OR MAY BE BOUND BY A JUDGMENT IN
THE ACTION  ...  ." 

THE APPELLANTS ALSO MOVED BELOW FOR PERMISSIVE, OR DISCRETIONARY,
INTERVENTION UNDER SUBDIVISION (B) OF RULE 24, BUT NO APPEAL HAS BEEN
TAKEN FROM THAT PART OF THE DISTRICT COURT'S ORDER. 

FN3  ALLEN CALCULATORS, INC., V. NATIONAL CASH REGISTER CO., 322 U.S.
137, NEED NOT BE CONSIDERED TO THE CONTRARY, FOR IT WOULD SEEM THAT THE
SIGNIFICANCE OF THE APPEAL WHICH WAS THERE TAKEN FROM THE JUDGMENT
BELOW RELATED TO THIS COURT'S JURISDICTION TO CONSIDER THE DISTRICT
COURT'S DENIAL OF PERMISSIVE INTERVENTION, AND NOT TO ITS JURISDICTION
TO REVIEW THE DISTRICT COURT'S ORDER DENYING INTERVENTION AS OF RIGHT. 

FN4  THE ISSUE OF INADEQUACY OF REPRESENTATION COULD ARISE ON THIS
PHASE OF THE CASE ONLY ON SOME SHOWING THAT ASCAP, WHICH OSTENSIBLY HAS
THE SAME INTERESTS AS APPELLANTS ON THIS ASPECT OF THE LITIGATION, WAS
IN FACT CONDUCTING THE LITIGATION IN BAD FAITH, COLLUSIVELY, OR
NEGLIGENTLY.  NO SUCH CONTENTION HAS BEEN MADE. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
























UNITED STATES V. NEUSTADT 366 U.S. 696 


NO. 533.  ARGUED MAY 2, 1961.  - DECIDED MAY 29, 1961.  - 281 F.2D 596,
REVERSED. 


UNDER THE FEDERAL TORT CLAIMS ACT, THE UNITED STATES MAY NOT BE HELD
LIABLE TO A PURCHASER OF A HOME WHO HAS BEEN FURNISHED A STATEMENT
REPORTING THE RESULTS OF A NEGLIGENTLY INACCURATE INSPECTION AND
APPRAISAL OF THE PROPERTY MADE BY THE FEDERAL HOUSING ADMINISTRATION
FOR MORTGAGE INSURANCE PURPOSES PURSUANT TO THE NATIONAL HOUSING ACT OF
1934, AS AMENDED, AND WHO, IN RELIANCE UPON SUCH STATEMENT, HAS BEEN
INDUCED TO PAY A PURCHASE PRICE IN EXCESS OF THE FAIR MARKET VALUE OF
THE PROPERTY, SINCE SUCH A CLAIM IS ONE "ARISING OUT OF  ...
MISREPRESENTATION," WITHIN THE MEANING OF 28 U.S.C. SEC. 2680(H), WHICH
PRECLUDES RECOVERY ON CLAIMS ARISING OUT OF NEGLIGENT, AS WELL AS
WILLFUL, MISREPRESENTATION.  PP. 696-711. 

UNITED STATES V. NEUSTADT ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

PURSUANT TO THE PROVISIONS OF THE NATIONAL HOUSING ACT OF 1934, (FN1)
AS AMENDED, THE FEDERAL HOUSING ADMINISTRATION (FHA) IS AUTHORIZED, IN
CERTAIN INSTANCES, TO INSURE THE PARTIAL REPAYMENT OF LOANS SECURED BY
MORTGAGES EXECUTED TO FINANCE THE PURCHASE OF PRIVATE RESIDENTIAL
PROPERTIES.  (FN2)  WHEN DULY REQUESTED TO DO SO BY A QUALIFIED LENDER,
THE FHA, THROUGH ITS APPRAISAL STAFF, MAKES AN INSPECTION OF PROPERTY
OFFERED FOR SALE IN ORDER TO DETERMINE WHETHER THE PROPERTY IS ELIGIBLE
FOR FHA MORTGAGE INSURANCE, AND TO ASSIGN AN APPRAISED VALUE
ESTABLISHING THE MAXIMUM AMOUNT OF MORTGAGE INSURANCE OBTAINABLE. 
(FN3) 

THE QUESTION FOR DECISION IN THIS CASE IS WHETHER THE UNITED STATES
MAY BE HELD LIABLE,UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SEC.
1346(B), (FN4) TO A PURCHASER OF RESIDENTIAL PROPERTY WHO HAS BEEN
FURNISHED A STATEMENT REPORTING THE RESULTS OF AN INACCURATE FHA
INSPECTION AND APPRAISAL, AND WHO, IN RELIANCE THEREON, HAS BEEN
INDUCED BY THE SELLER TO PAY A PURCHASE PRICE IN EXCESS OF THE
PROPERTY'S FAIR MARKET VALUE.  THE ANSWER TURNS UPON THE CORRECT
INTERPRETATION OF 28 U.S.C. SEC. 2680(H), WHICH PRECLUDES RECOVERY
UNDER THE TORT CLAIMS ACT UPON "ANY CLAIM ARISING OUT OF  ...
MISREPRESENTATION."  THE MATERIAL FACTS GIVING RISE TO THE CONTROVERSY
ARE NOT IN DISPUTE, AND MAY BE SUMMARIZED AS FOLLOWS. 

EARLY IN 1957, THE PROPERTY IN QUESTION, CONSISTING OF A 16-YEAR-OLD
SINGLE-FAMILY BRICK HOUSE AND LOT LOCATED IN ALEXANDRIA, VIRGINIA, WAS
OFFERED FOR SALE BY ITS OWNERS.  TO ASSURE THAT FHA MORTGAGE INSURANCE
WOULD BE AVAILABLE TO SECURE A LOAN IN THE EVENT THAT THE PURCHASER,
WHEN ASCERTAINED, MIGHT DESIRE TO FINANCE THE PURCHASE BY THAT METHOD,
THE OWNERS REQUESTED A QUALIFIED LENDING INSTITUTION TO TAKE THE
NECESSARY STEPS TO HAVE THE PROPERTY INSPECTED AND APPRAISED BY THE
FHA; AND PURSUANT TO THE LENDING AGENT'S APPLICATION, (FN5) AN FHA
APPRAISER VISITED AND INSPECTED THE PREMISES.  ON THE BASIS OF THAT
INSPECTION, WHICH DISCLOSED NO DEFECTS THAT WOULD DISQUALIFY THE
PROPERTY FOR MORTGAGE INSURANCE, THE FHA ISSUED TO THE LENDING AGENCY A
"CONDITIONAL COMMITMENT," (FN6) STATING THAT THE PROPERTY HAD BEEN
APPROVED FOR MORTGAGE INSURANCE AND, FOR THAT PURPOSE, HAD BEEN
ASSIGNED AN APPRAISED VALUE OF $22,750.  UNDER SEC. 203(B)(2) OF THE
NATIONAL HOUSING ACT, (FN7) THE MAXIMUM AMOUNT OF MORTGAGE INSURANCE
OBTAINABLE ON AN APPRAISED VALUE OF $22,750 WAS $18,800.  (FN8) 

SHORTLY THEREAFTER, THE RESPONDENTS, MR. AND MRS. STANLEY S.
NEUSTADT, EXAMINED THE PROPERTY AND BECAME INTERESTED IN BUYING IT.
AFTER NEGOTIATIONS EXTENDING OVER THE PERIOD OF A MONTH, IN THE COURSE
OF WHICH RESPONDENTS WERE ADVISED BY THE SELLERS THAT THE PROPERTY HAD
BEEN APPRAISED BY THE FHA AT A VALUE OF $22,750 FOR MORTGAGE INSURANCE
PURPOSES, RESPONDENTS ENTERED INTO A CONDITIONAL CONTRACT TO PURCHASE
THE PROPERTY AT A PRICE OF $24,000.  THE CONTRACT WAS CONDITIONED UPON
THE RESPONDENTS' OBTAINING A LOAN SECURED BY AN FHA-INSURED MORTGAGE IN
THE AMOUNT OF $18,800.  IN ACCORDANCE WITH SEC. 226 OF THE NATIONAL
HOUSING ACT, (FN9) THE CONTRACT ALSO PROVIDED THAT THE SELLERS WOULD
DELIVER TO RESPONDENTS, PRIOR TO THE SALE OF THE PROPERTY, A WRITTEN
STATEMENT SETTING FORTH THE FHA-APPRAISED VALUE.  BOTH CONDITIONS WERE
FULFILLED, AND ON THE SETTLEMENT DATE, JULY 2, 1957, RESPONDENTS TOOK
TITLE TO THE PROPERTY, AND ACKNOWLEDGED BY THEIR SIGNATURES THAT THEY
HAD BEEN FURNISHED WITH A WRITTEN "STATEMENT OF FHA APPRAISAL."  THIS
WAS AN OFFICIAL FHA DOCUMENT, STATING THAT THE FHA "HAS APPRAISED THE
PROPERTY IDENTIFIED  ...  AND FOR MORTGAGE INSURANCE PURPOSES HAS
PLACED AN FHA-APPRAISED VALUE OF $22,750 ON SUCH PROPERTY AS OF THE
DATE OF THIS STATEMENT.  (THE FHA APPRAISED VALUE DOES NOT ESTABLISH
SALES PRICE.)" 

RESPONDENTS MOVED INTO THE HOUSE ON JULY 10, 1957.  ACCORDING TO
THEIR TESTIMONY, THEY HAD PREVIOUSLY INSPECTED THE HOUSE "QUITE
CAREFULLY," AND HAD FOUND "ABSOLUTELY NOTHING WHICH WOULD INDICATE THE
NECESSITY FOR ANY REDECORATION AT ALL."  THE HOUSE WAS "IMMACULATELY
CLEAN" AND THE WALLS AND CEILINGS "LOOKED FINE."  HOWEVER, WITHIN A
MONTH AFTER RESPONDENTS MOVED IN, SUBSTANTIAL CRACKS DEVELOPED IN THE
CEILINGS AND IN THE INTERIOR AND EXTERIOR WALLS THROUGHOUT THE HOUSE. 
WHEN BUILDING REPAIR CONTRACTORS WERE UNABLE TO ASCERTAIN THE CAUSE OF
THE CRACKS, THE ORIGINAL BUILDER OF THE HOUSE AND FOUR FHA FIELD
INSPECTORS WERE SUMMONED, AND A THOROUGH INVESTIGATION WAS MADE BY
THEM.  BY DRILLING A HOLE THROUGH THE CONCRETE FLOOR OF THE BASEMENT,
IT WAS DISCOVERED THAT THE SUBSOIL WAS COMPOSED OF A TYPE OF CLAY WHICH
BECOMES PLIABLE WHEN MOIST.  DUE TO POOR DRAINAGE CONDITIONS ON THE
SURFACE, WATER HAD SEEPED INTO THE CLAY, CAUSING IT TO SHIFT BENEATH
THE FOUNDATIONS OF THE HOUSE AND TO PRODUCE THE CRACKS WHICH HAD
APPEARED IN THE WALLS AND CEILINGS. 

TEN MONTHS THEREAFTER, RESPONDENTS COMMENCED THIS ACTION AGAINST THE
GOVERNMENT, UNDER THE FEDERAL TORT CLAIMS ACT, IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, SEEKING RECOVERY
OF THE DIFFERENCE BETWEEN THE FAIR MARKET VALUE OF THE PROPERTY AND THE
PURCHASE PRICE OF $24,000.  THE COMPLAINT ALLEGED THAT THE FHA'S
INSPECTION AND APPRAISAL OF THE PROPERTY FOR MORTGAGE INSURANCE
PURPOSES HAD BEEN CONDUCTED NEGLIGENTLY; THAT RESPONDENTS WERE
JUSTIFIED IN RELYING UPON THE RESULTS OF THAT INSPECTION AND APPRAISAL;
AND THAT THEY "WOULD NOT HAVE PURCHASED THE PROPERTY FOR $24,000 BUT
FOR THE CARELESSNESS AND NEGLIGENCE OF FHA." 

AFTER TRIAL, THE DISTRICT COURT FOUND (FN10) THAT RESPONDENTS "IN
GOOD FAITH RELIED UPON THE FHA'S APPRAISAL IN CONSUMMATING THEIR
CONTRACT OF PURCHASE," AND THAT "REASONABLE CARE BY A QUALIFIED
APPRAISER WOULD HAVE WARNED" RESPONDENTS OF THE "SERIOUS STRUCTURAL
DEFECTS" IN THE HOUSE WHICH HAD BEEN "PREPONDERANTLY PROVED."  ON THAT
BASIS, THE COURT ADJUDGED THE GOVERNMENT LIABLE IN THE AMOUNT OF
$8,000, WHICH IT FOUND TO BE THE DIFFERENCE BETWEEN THE PROPERTY'S FAIR
MARKET VALUE AT THE TIME OF SALE ($16,000) AND THE PURCHASE PRICE
($24,000). 

ON APPEAL, THE JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT, 281 F.2D 596, OVER THE GOVERNMENT'S SEDULOUS OBJECTION
THAT RECOVERY WAS BARRED BY 28 U.S.C. SEC. 2680(H), WHICH EXCEPTS FROM
THE COVERAGE OF THE TORT CLAIMS ACT "ANY CLAIM ARISING OUT OF  ...
MISREPRESENTATION."   BECAUSE OF THE IMPORTANCE OF THE QUESTION, AND TO
RESOLVE AN APPARENT CONFLICT BETWEEN THE FOURTH CIRCUIT'S DECISION AND
THE HOLDINGS OF OTHER CIRCUITS UNIFORMLY CONSTRUING THE
"MISREPRESENTATION" EXCEPTION OF SEC. 2680(H) TO PRECLUDE RECOVERY ON
CLOSELY ANALOGOUS FACTS, (FN11) WE GRANTED CERTIORARI.  364 U.S. 926. 
WE HAVE CONCLUDED THAT THE INTERPRETATION ADOPTED BY THE FOURTH CIRCUIT
IS ERRONEOUS, AND THAT THE GOVERNMENT MUST BE ABSOLVED FROM LIABILITY. 

IN ITS COMPLETE FORM, SEC. 2680(H) EXCLUDES RECOVERY UNDER THE
FEDERAL TORT CLAIMS ACT UPON "ANY CLAIM ARISING OUT OF ASSAULT,
BATTERY, FALSE IMPRISONMENT, FALSE ARREST, MALICIOUS PROSECUTION, ABUSE
OF PROCESS, LIBEL, SLANDER, MISREPRESENTATION, DECEIT, OR INTERFERENCE
WITH CONTRACT RIGHTS."  THE GOVERNMENT'S POSITION IS THAT, SINCE
CONGRESS EMPLOYED BOTH THE TERMS "MISREPRESENTATION" AND "DECEIT" IN
SEC. 2680(H), IT CLEARLY MEANT TO EXCLUDE CLAIMS ARISING OUT OF
NEGLIGENT, AS WELL AS DELIBERATE, MISREPRESENTATION; AND THEREFORE,
EVEN ASSUMING THAT THE DISTRICT COURT CORRECTLY FOUND THAT THE
INACCURATE FHA APPRAISAL IN THIS CASE RESULTED FROM A NEGLIGENT
INSPECTION, AND THAT RESPONDENTS RELIED UPON THAT APPRAISAL TO THEIR
DETRIMENT, (FN12) THE CLAIM MUST NEVERTHELESS FAIL AS ONE "ARISING OUT
OF  ...  NEGLIGENT MISREPRESENTATION." 

WE ARE IN ACCORD WITH THE VIEW URGED BY THE GOVERNMENT, AND
UNANIMOUSLY ADOPTED BY ALL CIRCUITS WHICH HAVE PREVIOUSLY HAD OCCASION
TO PASS ON THE QUESTION, THAT SEC. 2680(H) COMPREHENDS CLAIMS ARISING
OUT OF NEGLIGENT, AS WELL AS WILLFUL, MISREPRESENTATION. 

THE LEADING PRECEDENT HAS BEEN THE SECOND CIRCUIT'S DECISION IN JONES
V. UNITED STATES, 207 F.2D 563, WHICH INVOLVED A STATEMENT ISSUED TO
THE PLAINTIFFS BY THE UNITED STATES GEOLOGICAL SURVEY ERRONEOUSLY
ESTIMATING THE OIL-PRODUCING CAPACITY OF CERTAIN LAND.  IN RELIANCE
UPON THAT STATEMENT, PLAINTIFFS SOLD SECURITIES REPRESENTING OIL AND
GAS RIGHTS IN THE LAND FOR LESS THAN THEIR ACTUAL VALUE, AND LATER
SOUGHT TO RECOUP THEIR LOSS FROM THE GOVERNMENT UNDER THE TORT CLAIMS
ACT ON A COMPLAINT ALLEGING NEGLIGENT MISREPRESENTATION.  AFFIRMING A
DISMISSAL OF THE COMPLAINT, THE SECOND CIRCUIT TERSELY POINTED OUT THAT
SEC. 2680(H) APPLIED TO BOTH "MISREPRESENTATION" AND "DECEIT," AND, "AS
'DECEIT' MEANS FRAUDULENT MISREPRESENTATION, ' MISREPRESENTATION' MUST
HAVE BEEN MEANT TO INCLUDE NEGLIGENT MISREPRESENTATION, SINCE OTHERWISE
THE WORD 'MISREPRESENTATION' WOULD BE DUPLICATIVE."  207 F.2D, AT 564. 
FOLLOWING THIS INTERPRETATION, IN AN UNBROKEN LINE, ARE THE CASES OF
NATIONAL MFG. CO. V. UNITED STATES, 210 F.2D 263 (C.A. 8TH CIR.); CLARK
V. UNITED STATES, 218 F.2D 446 (C.A. 9TH CIR.); MILLER HARNESS CO. V.
UNITED STATES, 241 F.2D 781 (C.A.2D CIR.); ANGLO-AMERICAN CORP. V.
UNITED STATES, 242 F.2D 236 (C.A.2D CIR.); HALL V. UNITED STATES, 274
F.2D 69 (C.A. 10TH CIR.).  IN ACCORD ALSO ARE SOCIAL SECURITY ADM'N V.
UNITED STATES, 138 F. SUPP. 639 (D.C.D. MD.), AND UNITED STATES V. VAN
METER, 149 F. SUPP. 493(D.C.N.D. CAL.). 

THROUGHOUT THIS LINE OF DECISIONS, THE ARGUMENT HAS BEEN MADE BY
PLAINTIFFS, AND CONSISTENTLY REJECTED BY THE COURTS, UNTIL THIS CASE,
THAT THE BAR OF SEC. 2680(H) DOES NOT APPLY WHEN THE GIST OF THE CLAIM
LIES IN NEGLIGENCE UNDERLYING THE INACCURATE REPRESENTATION, I.E., WHEN
THE CLAIM IS PHRASED AS ONE "ARISING OUT OF" NEGLIGENCE RATHER THAN
"MISREPRESENTATION."  BUT THIS ARGUMENT, AS WAS FORCEFULLY DEMONSTRATED
BY THE TENTH CIRCUIT IN HALL V. UNITED STATES, SUPRA, IS NOTHING MORE
THAN AN ATTEMPT TO CIRCUMVENT SEC. 2680(H) BY DENYING THAT IT APPLIES
TO NEGLIGENT MISREPRESENTATION.  IN THE HALL CASE, IT WAS ALLEGED THAT
AGENTS OF THE DEPARTMENT OF AGRICULTURE HAD NEGLIGENTLY INSPECTED THE
PLAINTIFF'S CATTLE AND, AS A RESULT, MISTAKENLY REPORTED THAT THE
CATTLE WERE DISEASED.  RELYING UPON THAT REPORT, PLAINTIFF SOLD THE
CATTLE AT LESS THAN THEIR FAIR VALUE, AND SOUGHT RECOVERY FROM THE
GOVERNMENT OF HIS LOSS ON THE GROUND THAT IT HAD BEEN CAUSED BY THE
NEGLIGENT INSPECTION UNDERLYING THE AGENTS' REPORT, RATHER THAN BY THE
REPORT ITSELF.  THE TENTH CIRCUIT REJECTED THE CLAIM, STATING: 

"WE MUST THEN LOOK BEYOND THE LITERAL MEANING OF THE LANGUAGE TO
ASCERTAIN THE REAL CAUSE OF COMPLAINT  ...  .  PLAINTIFF'S LOSS CAM
ABOUT WHEN THE GOVERNMENT AGENTS MISREPRESENTED THE CONDITION OF THE
CATTLE, TELLING HIM THEY WERE DISEASED WHEN, IN FACT, THEY WERE FREE
FROM DISEASE ...  .  THIS STATED A CAUSE OF ACTION PREDICATED ON A
MISREPRESENTATION.  MISREPRESENTATION AS USED IN THE EXCLUSIONARY
PROVISION OF SEC. 2680(H) WAS MEANT TO INCLUDE NEGLIGENT
MISREPRESENTATION."  274 F.2D, AT 71.  (FN13) 

IN THE INSTANT CASE, THE FOURTH CIRCUIT TOOK THE OPPOSITE VIEW, AND
HELD THAT RESPONDENTS COULD RECOVER ON THE SOLE BASIS OF THE UNDERLYING
NEGLIGENCE.  ALTHOUGH IT AGREED THAT SEC. 2680(H) EMBRACES BOTH
"NEGLIGENT" AND "WILLFUL" MISREPRESENTATION, AND THAT RESPONDENTS'
CLAIM "MIGHT FORM THE BASIS OF AN ACTION FOR MISREPRESENTATION UNDER
GENERAL COMMON-LAW PRINCIPLES," 281 F.2D, AT 601, IT DEEMED SEC.
2680(H) INAPPLICABLE HERE FOR THE REASON THAT THE MISREPRESENTATION WAS
"MERELY INCIDENTAL" TO THE "GRAVAMEN" OF THE CLAIM, I.E., "THE CARELESS
MAKING OF AN EXCESSIVE APPRAISAL SO THAT RESPONDENTS WERE  ...
DECEIVED AND SUFFERED SUBSTANTIAL LOSS."  ID., AT 602.  SINCE SEC. 226
OF THE NATIONAL HOUSING ACT (FN14) REQUIRES THAT A SELLER OF PROPERTY
APPROVED FOR FHA MORTGAGE INSURANCE "SHALL AGREE TO DELIVER, PRIOR TO
THE SALE OF THE PROPERTY, TO THE PERSON PURCHASING SUCH PROPERTY, A
WRITTEN STATEMENT SETTING FORTH THE AMOUNT OF THE FHA APPRAISED VALUE
...  ," THE FOURTH CIRCUIT REASONED THAT THE FHA APPRAISAL PROCEDURE
WAS DESIGNED TO PROTECT PROSPECTIVE HOME PURCHASERS; THAT THE
GOVERNMENT (THROUGH THE FHA) THEREFORE "OWED A SPECIFIC DUTY" TO
RESPONDENTS TO MAKE A CAREFUL APPRAISAL; AND THAT "IF THE GOVERNMENT
ASSUMES A DUTY AND NEGLIGENTLY PERFORMS IT, A PARTY INJURED THEREBY MAY
RECOVER DAMAGES FROM THE UNITED STATES EVEN THOUGH THE CARELESS
PERFORMANCE OF THE DUTY MAY HAVE BEEN ACCOMPANIED BY SOME
MISREPRESENTATION OF FACT."  ID., AT 599. 

WHETHER OR NOT THIS ANALYSIS ACCORDS WITH THE LAW OF STATES WHICH
HAVE SEEN FIT TO ALLOW RECOVERY UNDER ANALOGOUS CIRCUMSTANCES, (FN15)
IT DOES NOT MEET THE QUESTION OF WHETHER THIS CLAIM IS OUTSIDE THE
INTENDED SCOPE OF THE FEDERAL TORT CLAIMS ACT, WHICH DEPENDS SOLELY
UPON WHAT CONGRESS MEANT BY THE LANGUAGE IT USED IN SEC. 2680(H). 

TO SAY, AS THE FOURTH CIRCUIT DID, THAT A CLAIM ARISES OUT OF
"NEGLIGENCE," RATHER THAN "MISREPRESENTATION," WHEN THE LOSS SUFFERED
BY THE INJURED PARTY IS CAUSED BY THE BREACH OF A "SPECIFIC DUTY" OWED
BY THE GOVERNMENT TO HIM, I.E., THE DUTY TO USE DUE CARE IN OBTAINING
AND COMMUNICATING INFORMATION UPON WHICH THAT PARTY MAY REASONABLY BE
EXPECTED TO RELY IN THE CONDUCT OF HIS ECONOMIC AFFAIRS, IS ONLY TO
STATE THE TRADITIONAL AND COMMONLY UNDERSTOOD LEGAL DEFINITION OF THE
TORT OF "NEGLIGENT MISREPRESENTATION," AS IS CLEARLY, IF NOT
CONCLUSIVELY, SHOWN BY THE AUTHORITIES SET FORTH IN THE MARGIN, (FN16)
AND WHICH THERE IS EVERY REASON TO BELIEVE CONGRESS HAD IN MIND WHEN IT
PLACED THE WORD "MISREPRESENTATION" BEFORE THE WORD "DECEIT" IN SEC.
2680(H).  AS THE SECOND CIRCUIT OBSERVED IN JONES V. UNITED STATES,
SUPRA, "DECEIT" ALONE WOULD HAVE BEEN SUFFICIENT HAD CONGRESS INTENDED
ONLY TO EXCEPT DELIBERATELY FALSE REPRESENTATIONS.  (FN17) CERTAINLY
THERE IS NO WARRANT FOR ASSUMING THAT CONGRESS WAS UNAWARE OF
ESTABLISHED TORT DEFINITIONS WHEN IT ENACTED THE TORT CLAIMS ACT IN
1946, AFTER SPENDING "SOME TWENTY-EIGHT YEARS OF CONGRESSIONAL DRAFTING
AND REDRAFTING, AMENDMENT AND COUNTER-AMENDMENT."  UNITED STATES V.
SPELAR, 338 U.S. 217, 219-220.  MOREOVER, AS WE HAVE SAID IN
CONSIDERING OTHER ASPECTS OF THE ACT:  "THERE IS NOTHING IN THE TORT
CLAIMS ACT WHICH SHOWS THAT CONGRESS INTENDED TO DRAW DISTINCTIONS SO
FINESPUN AND CAPRICIOUS AS TO BE ALMOST INCAPABLE OF BEING HELD IN THE
MIND FOR ADEQUATE FORMULATION."  INDIAN TOWING CO. V. UNITED STATES,
350 U.S. 61, 68. 

REGARDING THE COURT OF APPEALS' ASSERTION THAT THE GOVERNMENT OWED
RESPONDENTS A "SPECIFIC DUTY" TO MAKE AND COMMUNICATE AN ACCURATE
APPRAISAL OF THE PROPERTY, BY VIRTUE OF THE PROVISIONS OF THE NATIONAL
HOUSING ACT, WE HAVE CAREFULLY EXAMINED THE RATHER EXTENSIVE
LEGISLATIVE HISTORY OF THAT STATUTE, GIVING PARTICULAR ATTENTION TO
SEC. 226 THEREOF, (FN18) AND HAVE FOUND NOTHING FROM WHICH WE MAY
REASONABLY INFER THAT CONGRESS INTENDED, IN A CASE SUCH AS THIS, TO
LIMIT OR SUSPEND THE APPLICATION OF THE "MISREPRESENTATION" EXCEPTION
OF THE TORT CLAIMS ACT.  LONG BEFORE SEC. 226 WAS ADDED TO THE NATIONAL
HOUSING ACT, IN 1954, REQUIRING SELLERS TO INFORM PROSPECTIVE BUYERS OF
FHA-APPRAISED VALUE, IT HAD BEEN RECOGNIZED IN CONGRESS THAT FHA
APPRAISALS WOULD BE A MATTER OF PUBLIC RECORD, AND WOULD THUS INURE,
INCIDENTALLY, TO THE BENEFIT OF PROSPECTIVE HOME PURCHASERS, BY
AFFORDING THEM THE "BENEFIT OF KNOWING THE APPRAISED VALUE SET UPON THE
PROPERTY  ...  BY A TRAINED VALUATOR ACTING IN ACCORDANCE WITH A
PROCEDURE DESIGNED TO REDUCE TO A MINIMUM, ERRORS THAT MIGHT RESULT
FROM CASUAL OR HASTY CONCLUSIONS."  (FN19)  BUT AT THE SAME TIME, IT
WAS REPEATEDLY EMPHASIZED THAT THE PRIMARY AND PREDOMINANT OBJECTIVE OF
THE APPRAISAL SYSTEM WAS THE "PROTECTION OF THE GOVERNMENT AND ITS
INSURANCE FUNDS"; (FN20) THAT THE MORTGAGE INSURANCE PROGRAM WAS NOT
DESIGNED TO INSURE ANYTHING OTHER THAN THE REPAYMENT OF LOANS MADE BY
LENDER-MORTGAGEES; (FN21) AND THAT "THERE IS NO LEGAL RELATIONSHIP
BETWEEN THE FHA AND THE INDIVIDUAL MORTGAGOR."  (FN22)  NEVER ONCE WAS
IT EVEN INTIMATED THAT, BY AN FHA APPRAISAL, THE GOVERNMENT WOULD, IN
ANY SENSE, REPRESENT OR GUARANTEE TO THE PURCHASER THAT HE WAS
RECEIVING A CERTAIN VALUE FOR HIS MONEY. 

NOR IS THERE ANY INDICATION THAT CONGRESS INTENDED, BY ITS 1954
ADDITION TO SEC. 226, TO MODIFY THE LEGISLATION'S FUNDAMENTAL DESIGN
FROM A SYSTEM OF MORTGAGE REPAYMENT INSURANCE TO ONE OF GUARANTY OR
WARRANTY TO THE PURCHASER OF VALUE RECEIVED.  ON ITS FACE, SEC. 226
GOES NO FURTHER THAN TO REQUIRE THAT A SELLER OF PROPERTY APPROVED FOR
FHA MORTGAGE INSURANCE SHALL FURNISH TO THE BUYER, PRIOR TO SALE, A
WRITTEN STATEMENT DISCLOSING THE FHA-APPRAISED VALUE.  (FN23)  THAT
CONGRESS DID NOT THEREBY INTEND TO CONVERT THE FHA APPRAISAL INTO A
WARRANTY OF VALUE, OR OTHERWISE TO EXTEND TO THE PURCHASER ANY
ACTIONABLE RIGHT OF REDRESS AGAINST THE GOVERNMENT IN THE EVENT OF A
FAULTY APPRAISAL, WAS MADE IRREFUTABLY CLEAR IN THE COMMITTEE HEARINGS
IN BOTH HOUSES OF CONGRESS, THE PERTINENT EXCERPTS FROM WHICH ARE SET
FORTH IN THE MARGIN.  (FN24)  MOREOVER, IT IS NOT UNREASONABLE TO
SUPPOSE THAT, AT THE TIME SEC. 226 WAS ADOPTED, CONGRESS WAS AWARE OF
THE "MISREPRESENTATION" EXCEPTION IN THE TORT CLAIMS ACT, AND THAT IT
HAD BEEN CONSTRUED BY THE COURTS TO INCLUDE "NEGLIGENT
MISREPRESENTATION."  (FN25) 

THE COMPULSORY DISCLOSURE PROVISION OF SEC. 226 IS BUT ONE OF
NUMEROUS INSTANCES IN WHICH CONGRESS HAS RELEGATED TO A GOVERNMENTAL
AGENCY THE DUTY EITHER TO DISCLOSE DIRECTLY, OR TO REQUIRE PRIVATE
PERSONS TO DISCLOSE, INFORMATION FOR THE ASSISTANCE AND GUIDANCE OF
OTHER PERSONS IN THE CONDUCT OF THEIR ECONOMIC AND COMMERCIAL AFFAIRS. 
IN PRACTICALLY ALL SUCH INSTANCES, IT MAY BE SAID THAT THE GOVERNMENT
OWES A "SPECIFIC DUTY" TO OBTAIN AND COMMUNICATE INFORMATION CAREFULLY,
LEST THE INTENDED RECIPIENT BE MISLED TO HIS FINANCIAL HARM.  WHILE WE
DO NOT CONDONE CARELESSNESS BY GOVERNMENT EMPLOYEES IN GATHERING AND
PROMULGATING SUCH INFORMATION, NEITHER CAN WE JUSTIFIABLY IGNORE THE
PLAIN WORDS CONGRESS HAS USED IN LIMITING THE SCOPE OF THE GOVERNMENT'S
TORT LIABILITY.  (FN26) 

IT FOLLOWS THAT RESPONDENTS' CLAIM IS ONE "ARISING OUT OF  ...
MISREPRESENTATION," WITHIN THE MEANING OF SEC. 2680(H), AND HENCE IS
NOT ACTIONABLE AGAINST THE GOVERNMENT UNDER THE TORT CLAIMS ACT. 
ACCORDINGLY, THE JUDGMENT BELOW MUST BE REVERSED. 

FN1  48 STAT. 1246, 12 U.S.C. SECS. 1701 ET SEQ. 

FN2  SECTION 203 OF THE NATIONAL HOUSING ACT OF 1934, AS AMENDED, 12
U.S.C. SEC. 1709, PROVIDED AT THE TIMES HERE PERTINENT THAT: 

"(A)  ...  THE FEDERAL HOUSING COMMISSIONER IS AUTHORIZED, UPON
APPLICATION BY THE MORTGAGEE, TO INSURE AS HEREINAFTER PROVIDED ANY
MORTGAGE OFFERED TO HIM WHICH IS ELIGIBLE FOR INSURANCE AS HEREINAFTER
PROVIDED, AND, UPON SUCH TERMS AS THE COMMISSIONER MAY PRESCRIBE, TO
MAKE COMMITMENTS FOR THE INSURING OF SUCH MORTGAGES PRIOR TO THE DATE
OF THEIR EXECUTION OR DISBURSEMENT THEREON  ...  .

    *          *         *         *    * 

"(B)  ...  TO BE ELIGIBLE FOR INSURANCE UNDER THIS SECTION A MORTGAGE
SHALL:

    *          *         * *         * 

"(2)  INVOLVE A PRINCIPAL OBLIGATION  ...  NOT TO EXCEED AN AMOUNT
EQUAL TO THE SUM OF (I) 95 PER CENTUM  ...  OF $9,000 OF THE FHA
APPRAISED VALUE (AS OF THE DATE THE MORTGAGE IS ACCEPTED FOR
INSURANCE), AND (II) 75 PER CENTUM OF SUCH VALUE IN EXCESS OF $9,000
...  ." 

FN3  24 CFR SECS. 200.145, 200.146, 200.148 (1959 ED.). 

FN4  "THE DISTRICT COURTS ...  SHALL HAVE EXCLUSIVE JURISDICTION OF
CIVIL ACTIONS ON CLAIMS AGAINST THE UNITED STATES, FOR MONEY DAMAGES
...  FOR INJURY OR LOSS OF PROPERTY  ...  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." 

FN5  AN APPLICATION FOR FHA MORTGAGE INSURANCE MAY BE MADE ONLY BY A
FINANCIAL INSTITUTION APPROVED AS A MORTGAGEE BY THE FHA.  SEC. 203(A),
NATIONAL HOUSING ACT, SUPRA, 12 U.S.C.  SEC. 1709(A).  APPLICATIONS MAY
BE, AND COMMONLY ARE, MADE IN ADVANCE OF ACTUAL SALE AND EXECUTION OF
THE MORTGAGE, 24 CFR SEC. 221.9 (1959 ED.), IN ORDER THAT THE SELLER
MAY HAVE THE PROPERTY INSPECTED, APPROVED, AND APPRAISED FOR MORTGAGE
INSURANCE WHILE THE PURCHASER IS STILL UNKNOWN. 

FN6  THE COMMITMENT TO INSURE A MORTGAGE IS CONDITIONED UPON THE
MORTGAGOR'S BEING FOUND FINANCIALLY ABLE TO CARRY THE MORTGAGE.  24 CFR
SECS. 200.147, 200.148(1)(1959 ED.). 

FN7  NOTE 2, SUPRA. 

FN8  UNDER SEC. 203(B)(2), THE MAXIMUM INSURABLE AMOUNT WAS
$18,862.50 (95% OF $9,000, PLUS 75% OF $13,750).  BY FHA REGULATIONS,
MORTGAGES WERE INSURABLE ONLY IN MULTIPLES OF $100.  24 CFR SEC.
221.17(A) (1958 SUPP.). 

FN9  SECTION 226 WAS ENACTED IN 1954 (68 STAT. 607, 12 U.S.C. SEC.
1715Q) AND PROVIDES IN PERTINENT PART AS FOLLOWS: 

"THE COMMISSIONER IS HEREBY AUTHORIZED AND DIRECTED TO REQUIRE THAT,
IN CONNECTION WITH ANY PROPERTY  ...  APPROVED FOR MORTGAGE INSURANCE
...  THE SELLER OR BUILDER  ...  SHALL AGREE TO DELIVER, PRIOR TO THE
SALE OF THE PROPERTY, TO THE PERSON PURCHASING SUCH DWELLING FOR HIS
OWN OCCUPANCY, A WRITTEN STATEMENT SETTING FORTH THE AMOUNT OF THE
APPRAISED VALUE OF THE PROPERTY AS DETERMINED BY THE COMMISSIONER  ...
." 

FN10  THERE IS NO RIGHT TO A JURY TRIAL UNDER THE TORT CLAIMS ACT. 
28 U.S.C. SEC. 2402. 

FN11  THE CASES ARE CITED AND DISCUSSED AT PP. 702-705, INFRA. 

FN12  NEITHER IN THE COURT OF APPEALS, NOR IN THIS COURT, HAS THE
GOVERNMENT CHOSEN TO CONTEST THESE FINDINGS. 

FN13  IN ANGLO-AMERICAN & OVERSEAS CORP. V. UNITED STATES, 242 F.2D
236, THE SECOND CIRCUIT ANALYZED A SIMILAR CLAIM AND EXPOSED ITS TRUE
BASIS:  "PLAINTIFF CONTRACTED TO SELL TOMATO PASTE TO THE UNITED
STATES, WHICH REQUIRED AS A CONDITION PRECEDENT TO ITS ACCEPTANCE OF
THE PASTE THAT IT SATISFY THE STANDARDS OF THE FOOD AND DRUG
ADMINISTRATION.  THE PASTE WAS IMPORTED; AND THE FOOD AND DRUG
ADMINISTRATION, AFTER SAMPLING IT, ISSUED 'RELEASE NOTICES' THAT
NOTIFIED CUSTOMS OFFICERS THAT THE TOMATO PASTE COULD ENTER THE
COUNTRY.  PLAINTIFF THEN ACCEPTED DELIVERY.  WHEN IT IN TURN DELIVERED
THE PASTE TO THE GOVERNMENT, FEDERAL OFFICIALS ONCE AGAIN INSPECTED THE
PASTE, FOUND THAT IT DID NOT SATISFY THE STANDARDS OF THE FOOD AND DRUG
ADMINISTRATION, AND ORDERED IT DESTROYED.  PLAINTIFF SUES NOW ON THE
GROUND THAT THE NEGLIGENCE OF OFFICIALS OF THE FOOD AND DRUG
ADMINISTRATION IN SAMPLING THE TOMATO PASTE AND IN ISSUING THE 'RELEASE
NOTICES' INDUCED IT TO ACCEPT THE PASTE AND THUS SUFFER DAMAGES. 

"THIS CLAIM, IT IS CLEAR, 'AROSE OUT OF' THE ASSERTEDLY NEGLIGENT
REPRESENTATION OF THE QUALITY OF THE TOMATO PASTE BY FEDERAL
EMPLOYEES.  SUCH A CLAIM IS BARRED BY  ...  SECTION 2680(H)  ... WHICH
EXCEPTS FROM LIABILTIY NEGLIGENT AS WELL AS INTENTIONAL
MISREPRESENTATION."  ID., AT 237. 

FN14  NOTE 9, SUPRA. 

FN15  THE FOURTH CIRCUIT SOUGHT PRIMARY SUPPORT FROM THE NEW YORK
COURT OF APPEALS' DECISION IN BLANZER V. SHEPHARD, 233 N.Y. 236, 135
N.E. 275, IN WHICH THE DEFENDANTS, WHO WERE PUBLIC WEIGHERS, WERE
REQUESTED BY A VENDOR TO WEIGH CERTAIN GOODS AND TO ISSUE A CERTIFICATE
OF WEIGHT TO THE BUYER.   THE GOODS WERE WEIGHED INACCURATELY, AND ON
THE STRENGTH OF THE ERRONEOUS WEIGHT CERTIFICATE, THE BUYER PAID AN
EXCESSIVE PURCHASE PRICE.  IN ALLOWING THE BUYER TO RECOVER FROM
DEFENDANTS, THE NEW YORK COURT LOOKED PRIMARILY TO THE NEGLIGENCE IN
PERFORMING THE ACT OF WEIGHING, AND STATED THAT DEFENDANTS WERE LIABLE
BOTH FOR THEIR "CARELESS WORDS" AND THEIR "CARELESS PERFORMANCE OF A
SERVICE."  THE CASE HAS BEEN WIDELY DISCUSSED BY TORT AUTHORITIES AS
EPITOMIZING "NEGLIGENT MISREPRESENTATION."  SEE, E.G., 1 HARPER AND
JAMES, TORTS, 546-548 (1956); PROSSER, TORTS, 734, 737 (1941 ED.);
BOHLEN, SHOULD NEGLIGENT MISREPRESENTATIONS BE TREATED AS NEGLIGENCE OR
FRAUD?  18 VA. L. REV. 703, 708 (1932).  GLANZER HAS BEEN FOLLOWED IN A
NUMBER OF STATES WHICH HAVE BROKEN FROM THE EARLIER, VIRTUALLY
UNANIMOUS, AMERICAN VIEW SUBSCRIBING TO THE ENGLISH CASE OF DERRY V.
PEEK, L.R. 14 APP. CAS. 337, 58 L.J. REP. CH. 864 (1889)(REFUSING TO
ALLOW RECOVERY FOR NEGLIGENT MISREPRESENTATION).  SEE CASES CITED IN 1
HARPER AND JAMES, TORTS, 546, N.5 (1956).  CF. ULTRAMARES CORP. V.
TOUCHE, 255 N.Y. 170, 174 N.E. 441. 

UNDER THE FEDERAL TORT CLAIMS ACT, WHEN A CLAIM IS NOT BARRED BY ONE
OF THE ACT'S EXCLUSIONARY PROVISIONS, THE LIABILITY OF THE GOVERNMENT
MUST BE DETERMINED "IN ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE
ACT OR OMISSION OCCURRED."  28 U.S.C.  SEC. 1346(B).  THE FOURTH
CIRCUIT'S OPINION, ALTHOUGH IT CONCLUDED THAT SEC. 2680(H) DID NOT BAR
RESPONDENTS' CLAIM, DID NOT INDICATE WHETHER VIRGINIA LAW FOLLOWS THE
NEW YORK RULE OF GLANZER V. SHEPHARD, SUPRA.  IN VIEW OF OUR CONCLUSION
THAT SEC. 2680(H) APPLIES, WE NEED NOT EXPLORE THIS QUESTION. 

FN16  THE AMERICAN LAW INSTITUTE'S RESTATEMENT OF TORTS (1938), C.22,
"DECEIT: BUSINESS TRANSACTIONS," TOPIC 3, "NEGLIGENT
MISREPRESENTATIONS," STATES AS FOLLOWS: 

"SEC. 552.  INFORMATION NEGLIGENTLY SUPPLIED FOR THE GUIDANCE OF
OTHERS. 

"ONE WHO IN THE COURSE OF HIS BUSINESS OR PROFESSION SUPPLIES
INFORMATION FOR THE GUIDANCE OF OTHERS IN THEIR BUSINESS TRANSACTIONS
IS SUBJECT TO LIABILITY FOR HARM CAUSED TO THEM BY THEIR RELIANCE UPON
THE INFORMATION IF: 

"(A)  HE FAILS TO EXERCISE THAT CARE AND COMPETENCE IN OBTAINING AND
COMMUNICATING THE INFORMATION WHICH ITS RECIPIENT IS JUSTIFIED IN
EXPECTING, AND: 

"(B)  THE HARM IS SUFFERED: 

"(I)  BY THE PERSON OR ONE OF THE CLASS OF PERSONS FOR WHOSE GUIDANCE
THE INFORMATION WAS SUPPLIED, AND: 

"(II)  BECAUSE OF HIS JUSTIFIABLE RELIANCE UPON IT IN A TRANSACTION
IN WHICH IT WAS INTENDED TO INFLUENCE HIS CONDUCT OR IN A TRANSACTION
SUBSTANTIALLY IDENTICAL THEREWITH." 

PROSSER, TORTS (1941 ED.), C.16, "MISREPRESENTATION," SEC. 87, "BASIS
OF RESPONSIBILITY," STATES: 

"RESPONSIBILITY FOR MISREPRESENTATION MAY BE DIVIDED INTO THE USUAL
TORT CLASSIFICATIONS.  IT MAY REST UPON: 

"A.  AN INTENT TO DECEIVE, CONSISTING OF BELIEF THAT THE
REPRESENTATION IS FALSE  ...  SUCH AN INTENT IS REQUIRED FOR THE ACTION
OF DECEIT. 

"B.  NEGLIGENCE IN OBTAINING INFORMATION OR IN MAKING THE
REPRESENTATION  ...  . 

"C.  A POLICY HOLDING THE MAKER STRICTLY RESPONSIBLE FOR THE TRUTH OF
THE REPRESENTATION  ...  ." 

SEE ALSO BOHLEN, MISREPRESENTATION AS DECEIT, NEGLIGENCE, OR
WARRANTY, 42 HARV. L. REV.  733, 735-739 (1929); 23 AM. JUR., FRAUD AND
DECEIT, SEC. 126, "NEGLIGENT REPRESENTATIONS" (1939). 

FN17  SEE 2 HARPER AND JAMES, TORTS, SEC. 29.13, THE FEDERAL TORT
CLAIMS ACT:  EXCEPTIONS TO LIABILITY, P. 1655 (1956). 

FN18  78 CONG. REC. 11980 ET SEQ.; 1ST ANNUAL REPORT OF FHA
(1935)(PASSIM); 100 CONG.  REC. 12349-12360; S. REP. NO. 1472, 83D
CONG., 2D SESS.; H.R. REP. NO. 1429, 83D CONG., 2D SESS.; H.R. CONF.
REP. NO. 2271, 83D CONG., 2D SESS.; HEARINGS BEFORE THE SENATE
COMMITTEE ON BANKING AND CURRENCY ON THE HOUSING ACT OF 1954, 83D
CONG., 2D SESS.; HEARINGS BEFORE THE HOUSE COMMITTEE ON BANKING AND
CURRENCY ON HOUSING ACT OF 1954, 83D CONG., 2D SESS.    FN19  FIRST
ANNUAL REPORT OF FHA 17 (1935).  SEE ALSO 90 CONG. REC. A2985; 78 CONG.
REC.  11981. 

FN20  H.R. CONF. REP. NO. 2217, 83D CONG., 2D SESS., P. 66. 

FN21  78 CONG. REC. 11981; 1ST ANNUAL REPORT OF FHA 15 (1935). 

FN22  H.R. CONF. REP. NO. 2271, 83D CONG., 2D SESS., PP. 66-67. 

FN23  NOTE 9, SUPRA.    FN24  IT WAS STATED BY REPRESENTATIVE
DOLLINGER, IN THE HEARINGS BEFORE THE SUBCOMMITTEE ON HOUSING OF THE
HOUSE COMMITTEE ON BANKING AND CURRENCY ON "HOUSING CONSTRUCTED UNDER
VA AND FHA PROGRAMS," 82D CONG., 2D SESS., AT 163: 

"THE GOVERNMENT DID NOT GUARANTEE, ON YOUR GETTING THE HOME, THAT THE
HOME WOULD BE IN GOOD CONDITION.  AS I POINTED OUT BEFORE, THERE HAS
BEEN A MISCONCEPTION OF THE IDEA.  THE GOVERNMENT NEVER APPROVED THE
BUILDING.  ALL IT SAYS IS THAT THE FHA LOANS ARE GUARANTEED TO THE
BUILDER OR TO THE BANK." 

IN THE HEARINGS BEFORE THE SENATE COMMITTEE ON BANKING AND CURRENCY
ON HOUSING ACT OF 1954, 83D CONG., 2D SESS., AT 1402-1403, THE
FOLLOWING COLLOQUY WAS RECORDED BETWEEN SENATOR BENNETT AND HOME
FINANCE ADMINISTRATOR COLE: 

"MR. COLE:  ...  I AGREE WITH THE SENATOR THAT THE HOME BUYER SHOULD
UNDERSTAND THAT THE FEDERAL GOVERNMENT IS NOT GUARANTEEING HIS HOME. 

"SENATOR BENNETT:  THAT IS CORRECT  ...  .  THE IDEA OF THE
INSPECTION SERVICE UNDER TITLE II IS TO PROTECT THE FEDERAL GOVERNMENT,
WHICH UNDERTAKES TO INSURE THE LOAN.  THE FACT THAT THE INSPECTION IS
MADE, PROVIDES COLLATERAL BENEFITS TO THE PROPERTY OWNER.  THERE IS NO
QUESTION ABOUT THAT.  BUT IN THE LAST ANALYSIS THE PROPERTY OWNER
CANNOT SAY TO THE FEDERAL GOVERNMENT, 'WELL, YOUR INSPECTOR INSPECTED
MY HOUSE, AND NOW LOOK WHAT'S HAPPENED; THEREFORE, YOU ARE RESPONSIBLE;
THEREFORE, YOU MUST COME DOWN HERE AND FIX IT UP.'" 

FN25  JONES V. UNITED STATES, SUPRA, AND NATIONAL MFG. CO. V. UNITED
STATES, SUPRA, HAD BOTH BEEN DECIDED, BY THE SECOND AND EIGHTH
CIRCUITS, RESPECTIVELY, WHEN CONGRESS ENACTED SEC. 226 IN 1954. 

FN26  OUR CONCLUSION NEITHER CONFLICTS WITH NOR IMPAIRS THE AUTHORITY
OF INDIAN TOWING CO. V. UNITED STATES, 350 U.S. 61, WHICH HELD
COGNIZABLE A TORTS ACT CLAIM FOR PROPERTY DAMAGES SUFFERED WHEN A
VESSEL RAN AGROUND AS A RESULT OF THE COAST GUARD'S ALLEGEDLY NEGLIGENT
FAILURE TO MAINTAIN THE BEACON LAMP IN A LIGHTHOUSE.  SUCH A CLAIM DOES
NOT "ARISE OUT OF ...  MISREPRESENTATION," ANY MORE THAN DOES ONE BASED
UPON A MOTOR VEHICLE OPERATOR'S NEGLIGENCE IN GIVING A MISLEADING TURN
SIGNAL.  AS DEAN PROSSER HAS OBSERVED, MANY FAMILIAR FORMS OF NEGLIGENT
CONDUCT MAY BE SAID TO INVOLVE AN ELEMENT OF "MISREPRESENTATION," IN
THE GENERIC SENSE OF THAT WORD, BUT "SO FAR AS MISREPRESENTATION HAS
BEEN TREATED AS GIVING RISE IN AND OF ITSELF TO A DISTINCT CAUSE OF
ACTION IN TORT, IT HAS BEEN IDENTIFIED WITH THE COMMON LAW ACTION OF
DECEIT," AND HAS BEEN CONFINED "VERY LARGELY TO THE INVASION OF
INTERESTS OF A FINANCIAL OR COMMERCIAL CHARACER, IN THE COURSE OF
BUSINESS DEALINGS."  PROSSER, TORTS, SEC. 85, "REMEDIES FOR
MISREPRESENTATION," AT 702-703 (1941 ED.).  SEE ALSO 2 HARPER AND
JAMES, TORTS, SEC. 29.13, AT 1655 (1956). 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













LURK V. UNITED STATES 366 U.S. 712 


NO. 669.  ARGUED MAY 4-5, 1961 - DECIDED MAY 29, 1961 - REVERSED AND
REMANDED. 


PETITIONER APPLIED TO A FEDERAL COURT OF APPEALS FOR LEAVE TO APPEAL
IN FORMA PAUPERIS FROM HIS ROBBERY CONVICTION, ON THE GROUND, INTER
ALIA, THAT IT WAS UNCONSTITUTIONAL BECAUSE HIS TRIAL IN A FEDERAL
DISTRICT COURT WAS PRESIDED OVER BY A RETIRED JUDGE OF THE COURT OF
CUSTOMS AND PATENT APPEALS, WHO HAD RETIRED BEFORE 1958.  LEAVE WAS
DENIED BY THE COURT OF APPEALS WITHOUT OPINION.  HELD:  THE JUDGMENT IS
REVERSED AND THE CASE IS REMANDED ON THE AUTHORITY OF ELLIS V. UNITED
STATES, 356 U.S. 674. 

LURK V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT.  ELLIS V. UNITED STATES, 356 U.S. 674. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

IN MY VIEW ELLIS V. UNITED STATES, 356 U.S. 674, ON THE BASIS OF
WHICH THE CASE IS SENT BACK TO THE COURT OF APPEALS, DOES NOT FIT THE
FACTS AND CIRCUMSTANCES OF THIS CASE. 

IN SUPPORT OF HIS CONTENTION THAT HE WAS WRONGFULLY DENIED THE RIGHT
TO APPEAL IN FORMA PAUPERIS, PETITIONER PRESENTS FOR OUR CONSIDERATION
TWO GROUNDS FOR REVERSAL OF HIS CONVICTION OF ROBBERY IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  THE FIRST
CONTENTION, CONCERNING THE ADMISSION AT HIS TRIAL OF ALLEGEDLY
PREJUDICIAL EVIDENCE, IS SO LACKING IN MERIT AS TO BE PLAINLY
FRIVOLOUS.  IT WOULD NOT JUSTIFY AN APPEAL IN FORMA PAUPERIS.  BUT
PETITIONER ALSO RAISES A JURISDICTIONAL QUESTION, VIZ., WHETHER HE
COULD CONSTITUTIONALLY BE TRIED BY A COURT PRESIDED OVER BY A RETIRED
JUDGE OF THE COURT OF CUSTOMS AND PATENT APPEALS.  THIS QUESTION,
THEREFORE, WOULD HAVE WARRANTED REVIEW BY THE COURT OF APPEALS. 

SOLUTION OF THIS PROBLEM WILL CALL INTO CONSIDERATION A NUMBER OF
SUBSIDIARY QUESTIONS.  WHAT ARE THE CHARACTERISTICS OF AN ARTICLE III
COURT?  IS THE COURT OF CUSTOMS AND PATENT APPEALS AN ARTICLE III
COURT?  IF SO, WHEN DID IT BECOME SUCH A COURT?  ASSUMING ARGUENDO THAT
THE COURT OF CUSTOMS AND PATENT APPEALS HAS BEEN AN ARTICLE III COURT
ONLY SINCE 1958 (WHEN CONGRESS ENACTED LEGISLATION CONFERRING THAT
STATUS), WHAT IS THE BEARING OF THIS FACT ON THE STATUS OF A JUDGE WHO
RETIRED FROM THE COURT PRIOR TO THAT TIME? 

THESE ARE NOT QUESTIONS ON WHICH, WITH ALL DUE RESPECT, A LOWER COURT
CAN BE OF EFFECTIVE ASSISTANCE TO THIS COURT.  THEY DO NOT INVOLVE THE
EVALUATION OF EVIDENCE OR THE APPLICATION OF RULES OF LOCAL LAW OR
SPECIAL FAMILIARITY AND EXPERIENCE WITH THE MATERIALS AND THE
UNDERLYING CONSIDERATIONS ON WHICH JUDGMENT MUST BE BASED.  ON THE
CONTRARY, THE CONSTITUTIONAL HISTORY AND THE CASES UPON WHICH THE
DECISION ULTIMATELY MUST TURN ARE THE SPECIAL CONCERN OF THIS COURT. 
INDEED, THE QUESTIONS POSED WOULD BE ENTIRELY SUITABLE FOR
CERTIFICATION TO THIS COURT BY A LOWER APPELLATE COURT.  SEE 28 U.S.C.
SEC. 1254.  CF. UNITED STATES V. MAYER, 235 U.S. 55.  FURTHERMORE, THE
ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS DEMANDS A SPEEDY
DISPOSITION OF THIS DISPUTE.  UNTIL IT IS SETTLED, ASSIGNMENT OF
RETIRED JUDGES TO HELP CLEAR DOCKETS IN FEDERAL COURTS UNDER A
LITIGIOUS CLOUD WILL BE HAMPERED BY UNCERTAINTY. 

NOTHING COULD BE MORE OBVIOUS THAN THAT THE COURT OF APPEALS, NO
MATTER HOW IT MAY DECIDE THE QUESTION NOW PUT IN ITS KEEPING, WILL HAVE
IT ONLY TEMPORARILY.  THE INEVITABLE FINAL DESTINATION OF THE CASE IS
THIS COURT.  DECISION HERE SHOULD NOT BE DELAYED BY WASTEFULLY TIME
CONSUMING REMAND TO THE COURT OF APPEALS OF A QUESTION THAT IS ALREADY
BEFORE US.
..END :






















HERRON V. UNITED STATES 366 U.S. 715 


NO. 791.  DECIDED MAY 29, 1961.  - APPEAL DISMISSED.  - REPORTED BELOW:
- F. SUPP. - .


HERRON V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :

















HOLEKAMP V. HOLEKAMP LUMBER CO. 366 U.S. 715 


NO. 870.  DECIDED MAY 29, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  340 S.W.2D 678. 


HOLEKAMP ET AL. V. HOLEKAMP LUMBER CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















HOLT V. OKLAHOMA 366 U.S. 716 


NO. 821.  DECIDED MAY 29, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED
REPORTED BELOW:  357 P.2D 574. 


HOLT ET AL. V. OKLAHOMA. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF OKLAHOMA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















JANKO V. UNITED STATES 366 U.S. 716 


NO. 380, MISC.  DECIDED MAY 29, 1961 - REPORTED BELOW:  281 F.2D 156. 


CERTIORARI GRANTED; JUDGMENT REVERSED; AND CASE REMANDED FOR NEW
TRIAL. 

JANKO V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE CONFESSION OF ERROR BY THE SOLICITOR
GENERAL AND EXAMINATION OF THE ENTIRE RECORD, THE MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AND THE PETITION FOR WRIT OF CERTIORARI ARE
GRANTED.  THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR A NEW TRIAL. 
..END :










H.K. PORTER CO., INC. V. CENTRAL VERMONT RAILWAY, INC. 366 U.S. 272 


NO. 257.  ARGUED APRIL 20, 1961 - DECIDED MAY 22, 1961.* - 182 F. SUPP.
516, REVERSED. 

*TOGETHER WITH NO. 258, INTERSTATE COMMERCE COMMISSION V. CENTRAL
VERMONT RAILWAY, INC., ET AL., AND NO. 266, UNITED STATES V. CENTRAL
VERMONT RAILWAY, INC., ET AL., ALSO ON APPEALS FROM THE SAME COURT. 


ASBESTOS IS CARRIED BY CANADIAN RAILROADS FROM SOUTHERN QUEBEC TO
POINTS JUST OVER THE BORDER IN VERMONT, WHENCE IT IS CARRIED BY
AMERICAN RAILROADS TO OTHER POINTS IN THE UNITED STATES.  CANADIAN AND
AMERICAN RAILROADS HAVE JOINT THROUGH RATES ON SUCH SHIPMENTS TO
CONSIGNEES IN THE NORTHEASTERN STATES WHICH ARE SUBSTANTIALLY LOWER
THAN THE COMBINATION OF SEPARATE OR LOCAL RATES THAT ARE AVAILABLE TO
CONSIGNEES IN THE SOUTHERN STATES.  THE INTERSTATE COMMERCE COMMISSION
FOUND THAT THE HIGHER COMBINATION RATES TO THE SOUTHERN STATES WERE
"UNJUST AND UNREASONABLE" IN VIOLATION OF SEC. 1(5) OF THE INTERSTATE
COMMERCE ACT AND "UNDULY PREJUDICIAL" TO SOUTHERN CONSIGNEES AND
"UNDULY PREFERENTIAL" TO NORTHERN CONSIGNEES IN VIOLATION OF SEC. 3(1),
AND IT ISSUED A CEASE AND DESIST ORDER PERTAINING TO THE
"TRANSPORTATION WITHIN THE UNITED STATES."  HELD: THE COMMISSION DID
NOT EXCEED ITS JURISDICTION, AND THE DISTRICT COURT SHOULD HAVE
CONSIDERED THE ORDER ON ITS MERITS.  PP. 273-275. 

H.K. PORTER CO., INC., ET AL. V. CENTRAL VERMONT RAILWAY, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
VERMONT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.  THE INTERSTATE
COMMERCE ACT CONFERS BROAD POWERS UPON THE INTERSTATE COMMERCE
COMMISSION TO REGULATE RAILROAD TRANSPORTATION IN THE UNITED STATES OR
TO OR FROM A FOREIGN COUNTRY, "BUT ONLY INSOFAR AS SUCH TRANSPORTATION
...  TAKES PLACE WITHIN THE UNITED STATES."  (FN1)  IN THIS CASE, HERE
ON APPEAL UNDER 28 U.S.C. SECS. 1253 AND 2101(B), A THREE-JUDGE
DISTRICT COURT SET ASIDE A COMMISSION ORDER ON THE GROUND THAT THE
COMMISSION WAS ATTEMPTING TO REGULATE RAILROAD TRANSPORTATION IN CANADA
IN EXCESS OF THE COMMISSION'S JURISDICTION.  (FN2) 

THE PROVINCE OF QUEBEC, CANADA, IS A PRINCIPAL SOURCE OF ASBESTOS FOR
MANUFACTURERS OF ASBESTOS PRODUCTS IN THIS COUNTRY.  IT IS TRANSPORTED
BY CANADIAN RAILROADS THROUGH SOUTHERN CANADA TO POINTS IN VERMONT
THREE TO FIVE MILES SOUTH OF THE BORDER AND CARRIED FROM THERE BY THE
VARIOUS APPELLEE RAILROADS TO OTHER POINTS IN THE UNITED STATES. 
CANADIAN AND AMERICAN CARRIERS HAVE JOINED IN THE PUBLICATION OF JOINT
THROUGH RATES AVAILABLE TO CONSIGNEES IN "OFFICIAL TERRITORY" IN THE
NORTHEASTERN STATES, (FN3) WHICH RATES ARE SUBSTANTIALLY LOWER THAN THE
COMBINATION OF SEPARATE OR LOCAL RATES THAT ARE PUBLISHED AND AVAILABLE
AS COMBINATION THROUGH RATES FOR CONSIGNEES IN THE SOUTHERN STATES.  ON
THE BASIS OF THESE AND OTHER FACTS THE COMMISSION FOUND AFTER HEARINGS
THAT THE HIGHER COMBINATION RATES TO COMPLAINANTS IN THE SOUTH WERE:
(A) "UNJUST AND UNREASONABLE" AND THEREFORE IN VIOLATION OF SEC. 1(5)
OF THE ACT, (FN4) AND (B) "UNDULY PREJUDICIAL" TO THE SOUTHERN
CONSIGNEES AND "UNDULY PREFERENTIAL" TO THE NORTHERN CONSIGNEES
ENJOYING THE LOWER JOINT RATES, AND THEREFORE IN VIOLATION OF SEC.
3(1).  (FN5)  THE COMMISSION THEN ENTERED ITS ORDER DIRECTING THE
RAILROADS TO CEASE AND DESIST FROM CONTINUING TO PRACTICE THE UNDUE
PREJUDICE AND PREFERENCE IT HAD FOUND AND TO ESTABLISH, POST AND
MAINTAIN RATES AND PRACTICES WHICH WOULD THEREAFTER "PREVENT AND AVOID"
SUCH PREJUDICE AND PREFERENCE.  (FN6) 

THE DISTRICT COURT'S HOLDING THAT THE COMMISSION WAS WITHOUT
JURISDICTION WAS BASED ON ITS ASSUMPTION THAT THE COMMISSION'S ORDER
ATTEMPTED TO CONTROL THE CANADIAN PART OF THE TRANSPORTATION.   BUT THE
ORDER DID NOT RUN AGAINST ANY TRANSPORTATION EXCEPT THAT TAKING PLACE
"WITHIN THE UNITED STATES."  THE ORDER DIRECTED THE DEFENDANT
RAILROADS, "ACCORDING AS THEY PARTICIPATE IN THE TRANSPORTATION WITHIN
THE UNITED STATES," TO TAKE ACTION WITHIN THEIR POWER TO CEASE THEIR
PARTICIPATION IN A TRANSPORTATION PRACTICE THAT THE COMMISSION HAD
FOUND TO BE PREJUDICIAL IN VIOLATION OF SEC. 3(1).  THE AFFECTED
TRANSPORTATION WITHIN THIS COUNTRY WAS THAT "FROM A FOREIGN COUNTRY"
OVER WHICH SEC. 1(1)(A) SPECIFICALLY GIVES THE COMMISSION JURISDICTION,
AND THE ORDER DID NOTHING MORE THAN DIRECT RAILROADS ENGAGED IN THAT
TRANSPORTATION TO ADJUST THEIR TRANSPORTATION PRACTICES "WITHIN THE
UNITED STATES" IN SUCH A WAY AS TO ELIMINATE ILLEGAL DISCRIMINATIONS. 
THESE RAILROADS OPERATING WITHIN THE UNITED STATES UNDOUBTEDLY HAVE
COMPLETE POWER TO STOP THESE DISCRIMINATIONS.  MERE WITHDRAWAL BY THE
AMERICAN RAILROADS FROM THE PREFERENTIAL JOINT THROUGH-RATE AGREEMENTS
WOULD BE AN OBVIOUS WAY TO DO SO, AND AN ALTERNATIVE METHOD WOULD BE TO
LOWER THE COMBINATION THROUGH RATES TO SOUTHERN TERRITORY BY REDUCTION
OF THE RATES FROM THE VERMONT INTERCHANGE POINTS TO THE SOUTH. 

IT HAS LONG BEEN SETTLED THAT THE COMMISSION'S POWER TO FORBID
UNLAWFUL RATE DISCRIMINATIONS IS IN NO WAY DIMINISHED BECAUSE THE RATES
ARE PUBLISHED AS JOINT THROUGH RATES OR COMBINATION THROUGH RATES. 
(FN7)  THIS POWER LIKEWISE IS NOT LOST MERELY BECAUSE THE PARTICULAR
TRANSPORTATION BY RAILROADS CARRYING GOODS IN THIS COUNTRY HAPPENS TO
BE A CONTINUATION OF CARRIAGE FROM ANOTHER COUNTRY.  OTHERWISE THE
COMMISSION'S MANDATE TO PROTECT SHIPPERS AGAINST ALL UNDUE
DISCRIMINATIONS WOULD BE FRUSTRATED WITH RESPECT TO RATES THAT IN PART
INCLUDE PAYMENT FOR TRANSPORTATION THAT TAKES PLACE IN A FOREIGN
COUNTRY.  (FN8) 

IT WAS ERROR TO SET ASIDE THE COMMISSION'S ORDER FOR LACK OF
JURISDICTION, AND THEREFORE THE DISTRICT COURT'S JUDGMENT IS REVERSED. 

FN1  49 U.S.C. SEC. 1(1)(A) AND SEC. 1(2). 

FN2  182 F. SUPP. 516. 

FN3  "OFFICIAL TERRITORY" IS IN GENERAL THAT AREA OF THE UNITED
STATES LYING EAST OF THE MISSISSIPPI RIVER AND NORTH OF THE POTOMAC AND
OHIO RIVERS.  SEE CLASS RATE INVESTIGATION, 1939, 262 I.C.C. 447, 457. 

FN4  49 U.S.C. SEC. 1(5). 

FN5  49 U.S.C. SEC. 3(1). 

FN6  SINCE THE CHALLENGED ORDER PRESCRIBED NO "REASONABLE RATES" TO
BE OBSERVED, WE HAVE NO OCCASION TO CONSIDER THE CONTENTION THAT THE
COMMISSION WAS WITHOUT JURISDICTION TO PRESCRIBE SUCH RATES.  NOR DID
THE COMMISSION ENTER ANY FINAL ORDER THAT A COMPLAINANT IS ENTITLED TO
AN AWARD OF DAMAGES BECAUSE IT HAD BEEN CHARGED UNLAWFUL RATES.  SUCH
AN ORDER, WHEN AND IF MADE, CAN BE CHALLENGED BEFORE A SINGLE JUDGE
UNDER 49 U.S.C. SEC. 16(2).  SEE UNITED STATES V. I.C.C., 337 U.S. 426,
442-443; PENNSYLVANIA R. CO. V. UNITED STATES, 363 U.S. 202, 205. 

FN7  SEE UNITED STATES V. ILLINOIS CENTRAL R. CO., 263 U.S. 515,
527. 

FN8 CF. COMMISSIONER EASTMAN'S CONCURRING OPINION IN CYANAMID AND
CRUDE CYANIDE FROM NIAGARA FALLS, ONTARIO, 155 I.C.C. 488, 501-502. 
..END :
















ELI LILLY & CO. V. SAV-ON-DRUGS, INC. 366 U.S. 276 


NO. 203.  ARGUED MARCH 20-21, 1961 - DECIDED MAY 22, 1961 - 31 N.J. 591,
158 A.2D 528, AFFIRMED. 


APPELLANT, AN INDIANA CORPORATION, MAINTAINS AN OFFICE IN NEW JERSEY
ON PREMISES LEASED IN THE NAME OF ITS DISTRICT MANAGER AND OCCUPIED BY
HIM AND A SECRETARY, WITH APPELLANT'S NAME ON THE DOOR AND IN THE LOBBY
AND WITH THE TELEPHONE LISTED IN APPELLANT'S NAME.  APPELLANT ALSO HAS
18 OTHER SALARIED EMPLOYEES TRAVELLING THROUGHOUT THE STATE AND
PROMOTING THE SALE OF ITS PHARMACEUTICAL PRODUCTS, NOT TO WHOLESALERS,
WHO BUY THEM INTERSTATE, BUT TO HOSPITALS, PHYSICIANS AND RETAIL
DRUGSTORES, WHO BUY THEM INTRASTATE FROM WHOLESALERS AND SELL THEM
INTRASTATE TO CONSUMERS.  HELD: ON THE RECORD IN THIS CASE, APPELLANT
IS DOING BUSINESS INTRASTATE IN NEW JERSEY, AND A STATE STATUTE
REQUIRING IT TO OBTAIN A CERTIFICATE OF AUTHORITY TO DO BUSINESS THERE,
AS A CONDITION PRECEDENT TO MAINTAINING IN A STATE COURT A SUIT NOT
BASED ON A PARTICULAR INTERSTATE SALE, DOES NOT VIOLATE THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 276-284. 

ELI LILLY & CO. V. SAV-ON-DRUGS, INC., ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT ELI LILLY AND COMPANY, AN INDIANA CORPORATION DEALING
IN PHARMACEUTICAL PRODUCTS, BROUGHT THIS ACTION IN A NEW JERSEY STATE
COURT TO ENJOIN THE APPELLEE SAV-ON-DRUGS, INC., A NEW JERSEY
CORPORATION, FROM SELLING LILLY'S PRODUCTS IN NEW JERSEY AT PRICES
LOWER THAN THOSE FIXED IN MINIMUM RETAIL PRICE CONTRACTS INTO WHICH
LILLY HAD ENTERED WITH A NUMBER OF NEW JERSEY DRUG RETAILERS.  SAV-ON
HAD ITSELF SIGNED NO SUCH CONTRACT BUT, UNDER THE NEW JERSEY FAIR TRADE
ACT, PRICES SO ESTABLISHED BECOME OBLIGATORY UPON NONSIGNING RETAILERS
WHO HAVE NOTICE THAT THE MANUFACTURER HAS MADE THESE CONTRACTS WITH
OTHER RETAILERS.  (FN1)  SAV-ON MOVED TO DISMISS THIS COMPLAINT UNDER A
NEW JERSEY STATUTE THAT DENIES A FOREIGN CORPORATION TRANSACTING
BUSINESS IN THE STATE THE RIGHT TO BRING ANY ACTION IN NEW JERSEY UPON
ANY CONTRACT MADE THERE UNLESS AND UNTIL IT FILES WITH THE NEW JERSEY
SECRETARY OF STATE A COPY OF ITS CHARTER TOGETHER WITH A LIMITED AMOUNT
OF INFORMATION ABOUT ITS OPERATIONS (FN2) AND OBTAINS FROM HIM A
CERTIFICATE AUTHORIZING IT TO DO BUSINESS IN THE STATE.  (FN3) 

LILLY OPPOSED THE MOTION TO DISMISS, URGING THAT ITS BUSINESS IN NEW
JERSEY WAS ENTIRELY IN INTERSTATE COMMERCE AND ARGUING, UPON THAT
GROUND, THAT THE ATTEMPT TO REQUIRE IT TO FILE THE NECESSARY
INFORMATION AND OBTAIN A CERTIFICATE FOR ITS NEW JERSEY BUSINESS WAS
FORBIDDEN BY THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  BOTH
PARTIES OFFERED EVIDENCE TO THE COURT IN THE NATURE OF AFFIDAVITS AS TO
THE EXTENT AND KIND OF BUSINESS DONE BY LILLY WITH NEW JERSEY COMPANIES
AND PEOPLE.  ON THIS EVIDENCE, THE TRIAL COURT MADE FINDINGS OF FACT
AND GRANTED SAV-ON'S MOTION TO DISMISS, STATING AS ITS GROUND THAT "THE
CONCLUSION IS INESCAPABLE THAT THE PLAINTIFF LILLY WAS IN FACT DOING
BUSINESS IN THIS STATE AT THE TIME OF THE ACTS COMPLAINED OF AND WAS
REQUIRED TO, BUT DID NOT, COMPLY WITH THE PROVISIONS OF THE CORPORATION
ACT."  (FN4)  ON APPEAL TO THE SUPREME COURT OF NEW JERSEY, THIS
CONSTITUTIONAL ATTACK WAS RENEWED AND THE STATE ATTORNEY GENERAL WAS
PERMITTED TO INTERVENE AS A PARTY-DEFENDANT TO DEFEND THE VALIDITY OF
THE STATUTE.  THE STATE SUPREME COURT THEN AFFIRMED THE JUDGMENT
UPHOLDING THE STATUTE, RELYING ENTIRELY UPON THE OPINION OF THE TRIAL
COURT.  (FN5)  WE NOTED PROBABLE JURISDICTION TO CONSIDER LILLY'S
CONTENTION THAT THE CONSTITUTIONAL QUESTION WAS IMPROPERLY DECIDED BY
THE STATE COURTS.  (FN6) 

THE RECORD SHOWS THAT THE NEW JERSEY TRADE IN LILLY'S PHARMACEUTICAL
PRODUCTS IS CARRIED ON THROUGH BOTH INTERSTATE AND INTRASTATE
CHANNELS.  LILLY MANUFACTURES THESE PRODUCTS AND SELLS THEM IN
INTERSTATE COMMERCE TO CERTAIN SELECTED NEW JERSEY WHOLESALERS.  THESE
WHOLESALERS THEN SELL THE PRODUCTS IN INTRASTATE COMMERCE TO NEW JERSEY
HOSPITALS, PHYSICIANS AND RETAIL DRUG STORES, AND THESE RETAIL STORES
IN TURN SELL THEM, AGAIN IN INTRASTATE COMMERCE, TO THE GENERAL
PUBLIC.  IT IS WELL ESTABLISHED THAT NEW JERSEY CANNOT REQUIRE LILLY TO
GET A CERTIFICATE OF AUTHORITY TO DO BUSINESS IN THE STATE IF ITS
PARTICIPATION IN THIS TRADE IS LIMITED TO ITS WHOLLY INTERSTATE SALES
TO NEW JERSEY WHOLESALERS.  (FN7)  UNDER THE AUTHORITY OF THE SO-CALLED
"DRUMMER" CASES, SUCH AS ROBBINS V. SHELBY COUNTY TAXING DISTRICT,
(FN8) LILLY IS FREE TO SEND SALESMEN INTO NEW JERSEY TO PROMOTE THIS
INTERSTATE TRADE WITHOUT INTERFERENCE FROM REGULATIONS IMPOSED BY THE
STATE.  ON THE OTHER HAND, IT IS EQUALLY WELL SETTLED THAT IF LILLY IS
ENGAGED IN INTRASTATE AS WELL AS INTERSTATE ASPECTS OF THE NEW JERSEY
DRUG BUSINESS, THE STATE CAN REQUIRE IT TO GET A CERTIFICATE OF
AUTHORITY TO DO BUSINESS.  (FN9)  IN SUCH A SITUATION, LILLY COULD NOT
ESCAPE STATE REGULATION MERELY BECAUSE IT IS ALSO ENGAGED IN INTERSTATE
COMMERCE.  WE MUST THEN LOOK TO THE RECORD TO DETERMINE WHETHER LILLY
IS ENGAGED IN INTRASTATE COMMERCE IN NEW JERSEY. 

THE FINDINGS OF THE TRIAL COURT, BASED AS THEY ARE UPON
UNCONTROVERTED EVIDENCE PRESENTED TO IT, SHOW CLEARLY THAT LILLY IS
CONDUCTING AN INTRASTATE AS WELL AS AN INTERSTATE BUSINESS IN NEW
JERSEY:

"THE FACTS ARE THESE:  PLAINTIFF MAINTAINS AN OFFICE AT 60 PARK
PLACE, NEWARK, NEW JERSEY.  ITS NAME IS ON THE DOOR AND ON THE TENANT
REGISTRY IN THE LOBBY OF THE BUILDING.  (THE SEPTEMBER 1959 ISSUE OF
THE NEWARK TELEPHONE DIRECTORY LISTS THE PLAINTIFF, BOTH IN THE REGULAR
AS HAVING AN OFFICE AT 60 PARK PLACE, NEWARK.)  THE LESSOR OF THE SPACE
IS PLAINTIFF'S EMPLOYEE, LEONARD L. AUDINO, WHO IS DISTRICT MANAGER IN
CHARGE OF ITS MARKETING DIVISION FOR THE DISTRICT KNOWN AS NEWARK. 
PLAINTIFF IS NOT A PARTY TO THE LEASE, BUT IT REIMBURSES AUDINO 'FOR
ALL EXPENSES INCIDENTAL TO THE MAINTENANCE AND OPERATION OF SAID
OFFICE.'  THERE IS A SECRETARY IN THE OFFICE, WHO IS PAID DIRECTLY BY
THE PLAINTIFF ON A SALARY BASIS.  THERE ARE 18 'DETAILMEN' UNDER THE
SUPERVISION OF AUDINO.  THESE DETAILMEN ARE PAID ON A SALARY BASIS BY
THE PLAINTIFF, BUT RECEIVE NO COMMISSIONS.  MANY, IF NOT ALL OF THEM,
RESIDE IN THE STATE OF NEW JERSEY.  WHETHER PLAINTIFF PAYS UNEMPLOYMENT
OR OTHER TAXES TO THE STATE OF NEW JERSEY IS NOT STATED.  IT IS THE
FUNCTION OF THE DETAILMEN TO VISIT RETAIL PHARMACISTS, PHYSICIANS AND
HOSPITALS IN ORDER TO ACQUAINT THEM WITH THE PRODUCTS OF THE PLAINTIFF
WITH A VIEW TO ENCOURAGING THE USE OF THESE PRODUCTS.  PLAINTIFF
CONTENDS THAT THEIR WORK IS 'PROMOTIONAL AND INFORMATIONAL ONLY.'  ON
AN OCCASION, THESE DETAILMEN, 'AS A SERVICE TO THE RETAILER,' MAY
RECEIVE AN ORDER FOR PLAINTIFF'S PRODUCTS FOR TRANSMITTAL TO A
WHOLESALER.  THEY EXAMINE THE STOCKS AND INVENTORY OF RETAILERS AND
MAKE RECOMMENDATIONS TO THEM RELATING TO THE SUPPLYING AND
MERCHANDISING OF PLAINTIFF'S PRODUCTS.  THEY ALSO MAKE AVAILABLE TO
RETAIL DRUGGISTS, FREE OF CHARGE, ADVERTISING AND PROMOTIONAL
MATERIAL.  WHEN DEFENDANT OPENED ITS STORE IN CARTERET, PLAINTIFF
OFFERED TO PROVIDE, AND DID PROVIDE, ANNOUNCEMENTS FOR MAILING TO THE
MEDICAL PROFESSION, WITHOUT COST TO DEFENDANT.  THE SAME THING OCCURRED
WHEN DEFENDANT OPENED ITS PLAINFIELD STORE."  (FN10) 

WE AGREE WITH THE TRIAL COURT THAT "TO HOLD UNDER THE FACTS ABOVE
RECITED THAT PLAINTIFF LILLY IS NOT DOING BUSINESS IN NEW JERSEY IS TO
COMPLETELY IGNORE REALITY."  (FN11)  EIGHTEEN "DETAILMEN," WORKING OUT
OF A BIG OFFICE IN NEWARK, NEW JERSEY, WITH LILLY'S NAME ON THE DOOR
AND IN THE LOBBY OF THE BUILDING, AND WITH LILLY'S DISTRICT MANAGER AND
SECRETARY IN CHARGE, HAVE BEEN REGULARLY ENGAGED IN WORK FOR LILLY
WHICH RELATES DIRECTLY TO THE INTRASTATE ASPECTS OF THE SALE OF LILLY'S
PRODUCTS.  THESE EIGHTEEN "DETAILMEN" HAVE BEEN TRAVELING THROUGHOUT
THE STATE OF NEW JERSEY PROMOTING THE SALES OF LILLY'S PRODUCTS, NOT TO
THE WHOLESALERS, LILLY'S INTERSTATE CUSTOMERS, BUT TO THE PHYSICIANS,
HOSPITALS AND RETAILERS WHO BUY THOSE PRODUCTS IN INTRASTATE COMMERCE
FROM THE WHOLESALERS.  TO THIS END, THEY HAVE PROVIDED THESE HOSPITALS,
PHYSICIANS AND RETAILERS WITH UP-TO-DATE KNOWLEDGE OF LILLY'S PRODUCTS
AND WITH FREE ADVERTISING AND PROMOTIONAL MATERIAL DESIGNED TO
ENCOURAGE THE GENERAL PUBLIC TO MAKE MORE INTRASTATE PURCHASES OF
LILLY'S PRODUCTS.  AND THEY SOMETIMES EVEN DIRECTLY PARTICIPATE IN THE
INTRASTATE SALES THEMSELVES BY TRANSMITTING ORDERS FROM THE HOSPITALS,
PHYSICIANS AND DRUGSTORES THEY SERVICE TO THE NEW JERSEY WHOLESALERS. 

THIS COURT HAD A SOMEWHAT SIMILAR PROBLEM BEFORE IT IN CHENEY
BROTHERS CO. V. MASSACHUSETTS.  (FN12)  IN THAT CASE, THE NORTHWESTERN
CONSOLIDATED MILLING COMPANY OF MINNESOTA HAD BEEN CONDUCTING BUSINESS
IN MASSACHUSETTS IN A MANNER QUITE SIMILAR TO THAT BEING USED BY LILLY
IN NEW JERSEY - A NUMBER OF WHOLESALERS WERE BUYING NORTHWESTERN'S
FLOUR IN INTERSTATE COMMERCE AND SELLING IT TO RETAIL STORES IN
MASSACHUSETTS IN INTRASTATE COMMERCE.  NORTHWESTERN HAD IN
MASSACHUSETTS, IN ADDITION TO ANY FORCE OF DRUMMERS IT MAY HAVE HAD TO
PROMOTE ITS INTERSTATE SALES TO THE WHOLESALERS, A GROUP OF SALESMEN
WHO TRAVELED THE STATE PROMOTING THE SALE OF FLOUR BY MASSACHUSETTS
WHOLESALERS TO MASSACHUSETTS RETAILERS.  THESE SALESMEN ALSO SOLICITED
ORDERS FROM THE RETAIL DEALERS AND TURNED THEM OVER TO THE NEAREST
MASSACHUSETTS WHOLESALER.  DESPITE THIS SUBSTANTIAL CONNECTION WITH THE
INTRASTATE BUSINESS IN MASSACHUSETTS, NORTHWESTERN CONTENDED THAT ITS
BUSINESS WAS WHOLLY IN INTERSTATE COMMERCE - A CONTENTION THAT THIS
COURT DISPOSED OF SUMMARILY IN THE FOLLOWING WORDS:  "OF COURSE THIS IS
A DOMESTIC BUSINESS, - INDUCING ONE LOCAL MERCHANT TO BUY A PARTICULAR
CLASS OF GOODS FROM ANOTHER."  (FN13) 

LILLY ATTEMPTS TO DISTINGUISH THE HOLDING IN THE CHENEY CASE ON THE
GROUND THAT HERE ITS DETAILMEN ARE NOT ENGAGED IN A SYSTEMATIC
SOLICITATION OF ORDERS FROM THE RETAILERS.  IT IS TRUE THAT THE RECORD
IN THE CHENEY CASE SHOWS A MORE REGULAR SOLICITATION OF ORDERS THAN
DOES THE RECORD HERE.  BUT THAT DIFFERENCE IS NOT ENOUGH TO DISTINGUISH
THE CASES.  FOR THE RECORD SHOWS THAT LILLY HERE, NO LESS THAN
NORTHWESTERN THERE, ENGAGES IN A "DOMESTIC BUSINESS, - INDUCING," AS
THE COURT SAID OF NORTHWESTERN, "ONE LOCAL MERCHANT TO BUY A PARTICULAR
CLASS OF GOODS FROM ANOTHER."  THE FACT THAT THE BUSINESS OF "INDUCING"
INTRASTATE SALES, AS ENGAGED IN BY LILLY, IS PRIMARILY A PROMOTIONAL
AND SERVICE BUSINESS WHICH DOES NOT INCLUDE A SYSTEMATIC SOLICITATION
OF ORDERS GOES ONLY TO THE NATURE OF THE INTRASTATE BUSINESS LILLY IS
CARRYING ON, NOT TO THE QUESTION OF WHETHER IT IS CARRYING ON AN
INTRASTATE BUSINESS. 

LILLY ALSO CONTENDS THAT EVEN IF IT IS ENGAGED IN INTRASTATE COMMERCE
IN NEW JERSEY AND CAN BY VIRTUE OF THAT FACT BE REQUIRED TO GET A
LICENSE TO DO BUSINESS IN THAT STATE, NEW JERSEY CANNOT PROPERLY DENY
IT ACCESS TO THE COURTS IN THIS CASE BECAUSE THE SUIT IS ONE ARISING
OUT OF THE INTERSTATE ASPECTS OF ITS BUSINESS.  IN THIS REGARD, LILLY
RELIES UPON SUCH CASES AS INTERNATIONAL TEXTBOOK CO. V. PIGG, (FN14)
HOLDING THAT A STATE CANNOT CONDITION THE RIGHT OF A FOREIGN
CORPORATION TO SUE UPON A CONTRACT FOR THE INTERSTATE SALE OF GOODS. 
WE DO NOT THINK THAT THOSE CASES ARE APPLICABLE HERE, HOWEVER, FOR THE
PRESENT SUIT IS NOT OF THAT KIND.  HERE, LILLY IS SUING UPON A CONTRACT
ENTIRELY SEPARABLE FROM ANY PARTICULAR INTERSTATE SALE AND THE POWER OF
THE STATE IS CONSEQUENTLY NOT LIMITED BY CASES INVOLVING SUCH
CONTRACTS. 

WHAT WE HAVE SAID WOULD BE ENOUGH TO DISPOSE OF THIS CASE WERE IT NOT
FOR THE CONTENTION THAT THE QUESTION WHETHER LILLY IS ENGAGED IN
INTRASTATE COMMERCE IN NEW JERSEY IS NOT PROPERLY BEFORE US. THIS
CONTENTION IS BASED UPON LILLY'S INTERPRETATION OF THE DECISION OF THE
NEW JERSEY COURT AS RESTING UPON THE ASSUMPTION THAT LILLY HAS BEEN
ENGAGED IN INTERSTATE COMMERCE ONLY.  WE CANNOT ACCEPT THAT CONTENTION
BECAUSE, IN THE FIRST PLACE, IT RESTS UPON A COMPLETELY ERRONEOUS
INTERPRETATION OF THE NEW JERSEY COURT'S OPINION.  THAT COURT WAS
CALLED UPON TO DECIDE WHETHER APPELLANT WAS "TRANSACTING BUSINESS" IN
NEW JERSEY WITHIN THE MEANING OF THE STATUTE WHICH REQUIRES THE
REGISTRATION OF FOREIGN CORPORATIONS.  IN DECIDING THAT QUESTION, THE
COURT RELIED UPON THE FACTS SET OUT IN THE AFFIDAVITS WITH REGARD TO
THE VARIOUS LOCAL ACTIVITIES OF LILLY AS SUMMARIZED IN THE FINDINGS
QUOTED ABOVE.  THE ONLY REASONABLE INFERENCE FROM THESE FINDINGS IS
THAT THE TRIAL COURT INTERPRETED THE PHRASE "TRANSACTING BUSINESS" IN
THE NEW JERSEY STATUTE TO MEAN TRANSACTING LOCAL INTRASTATE BUSINESS
AND CONCLUDED FROM THE FACTS IT FOUND THAT LILLY WAS TRANSACTING SUCH
BUSINESS.  THIS CONCLUSION IS REINFORCED BY A SUBSEQUENT NEW JERSEY
OPINION THAT DISTINGUISHES THE DECISION IN THIS CASE ON PRECISELY THAT
GROUND.  (FN15) 

BUT EVEN IF THE OPINION OF THE COURT BELOW SHOULD, AS IS URGED, BE
INTERPRETED AS RESTING UPON THE MISTAKEN BELIEF THAT APPELLANT COULD BE
REQUIRED TO REGISTER, EVEN THOUGH IT TRANSACTED NO BUSINESS WHATEVER IN
NEW JERSEY EXCEPT INTERSTATE BUSINESS, WE THINK IT WOULD STILL BE
NECESSARY TO AFFIRM THE DECISION OF THAT COURT ON THE RECORD PRESENTLY
BEFORE US.  THAT RECORD CLEARLY SHOWS THAT LILLY WAS, AS A MATTER OF
FACT, ENGAGED IN LOCAL INTRASTATE BUSINESS IN NEW JERSEY THROUGH THE
EMPLOYEES IT KEPT THERE TO INDUCE RETAILERS, PHYSICIANS AND HOSPITALS
TO BUY LILLY'S PRODUCTS FROM NEW JERSEY WHOLESALERS IN INTRASTATE
COMMERCE.  SO EVEN IF THE STATE COURT HAD RESTED ITS CONCLUSIONS ON AN
IMPROPER GROUND, THIS COURT COULD NOT, IN VIEW OF THE UNDISPUTED FACTS
ESTABLISHING ITS VALIDITY, DECLARE A SOLEMN ACT OF THE STATE OF NEW
JERSEY UNCONSTITUTIONAL.  THE RECORD CLEARLY SUPPORTS THE JUDGMENT OF
THE NEW JERSEY SUPREME COURT AND THAT JUDGMENT MUST THEREFORE BE AND IS
AFFIRMED. 

FN1  N.J. REV. STAT. 56:4-6.  THE LEGALITY OF SUCH ARRANGEMENTS
INSOFAR AS THE ANTITRUST LAWS ARE CONCERNED WAS PROVIDED FOR BY THE
MCGUIRE ACT, 66 STAT. 632, 15 U.S.C. SEC. 45(A). 

FN2  THE INFORMATION REQUIRED IS:  (1) THE AMOUNT OF THE
CORPORATION'S AUTHORIZED CAPITAL STOCK; (2) THE AMOUNT OF STOCK
ACTUALLY ISSUED BY THE CORPORATION; (3) THE CHARACTER OF THE BUSINESS
WHICH THE CORPORATION INTENDS TO TRANSACT IN NEW JERSEY; (4) THE
PRINCIPAL OFFICE OF THE CORPORATION IN NEW JERSEY; AND (5) THE NAME AND
PLACE OF ABODE OF AN AGENT UPON WHOM PROCESS AGAINST THE CORPORATION
MAY BE SERVED.  N.J. REV. STAT. 14:15-3.    FN3  N.J. REV. STAT. 14:15
4. 

FN4  57 N.J. SUPER.  291, 302, 154 A.2D 650, 656. 

FN5  31 N.J. 591, 158 A.2D 528. 

FN6  364 U.S. 860. 

FN7  SEE, E.G., CRUTCHER V. KENTUCKY, 141 U.S. 47; INTERNATIONAL
TEXTBOOK CO. V. PIGG, 217 U.S. 91; SIOUX REMEDY CO. V. COPE, 235 U.S.
197. 

FN8  120 U.S. 489.  THE ROBBINS CASE HAS BEEN FOLLOWED IN A LONG LINE
OF SUBSEQUENT DECISIONS BY THIS COURT.  A PARTIAL LIST OF THESE CASES
IS SET OUT IN MEMPHIS STEAM LAUNDRY V. STONE, 342 U.S. 389, 392-393, N.
7. 

FN9  SEE, E.G., RAILWAY EXPRESS CO. V. VIRGINIA, 282 U.S. 440.  CF.
UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, ESPECIALLY AT 211-212. 

FN10  57 N.J. SUPER., AT 298-299, 154 A.2D, AT 654. 

FN11  ID., AT 300, 154 A.2D, AT 655. 

FN12  246 U.S. 147. 

FN13  ID., AT 155. 

FN14  217 U.S. 91.  SEE ALSO FURST V. BREWSTER, 282 U.S. 493; SIOUX
REMEDY CO. V. COPE, 235 U.S. 197. 

FN15  UNITED STATES TIME CORP. V. GRAND UNION CO., 64 N.J. SUPER. 
39, ESPECIALLY AT 45-46, 165 A.2D 310, 313-314. 

MR. JUSTICE HARLAN, CONCURRING. 

ON THE PREMISE THAT NEW JERSEY CANNOT IMPEDE AN OUT-OF-STATE SELLER'S
ACCESS TO THE STATE MARKET, (FN1) THE DIFFICULT ISSUE PRESENTED IN THIS
CASE IS HOW MUCH MORE THAN SHIPPING ITS GOODS INTO NEW JERSEY LILLY MAY
DO WITHIN THE STATE WITHOUT SUBJECTING ITSELF TO THE REQUIREMENTS AND
SANCTIONS OF NEW JERSEY'S LICENSING LAWS.  IN JOINING THE COURT'S
OPINION, I THINK SOME FURTHER OBSERVATIONS APPROPRIATE. 

IT IS CLEAR THAT SENDING "DRUMMERS" INTO NEW JERSEY SEEKING CUSTOMERS
TO WHOM LILLY'S GOODS MAY BE SOLD AND SHIPPED, ROBBINS V. SHELBY COUNTY
TAXING DISTRICT, 120 U.S. 489, AND SUING IN THE STATE COURTS TO ENFORCE
CONTRACTS FOR SALES FROM AN OUT-OF-STATE STORE OF GOODS, INTERNATIONAL
TEXTBOOK V. PIGG, 217 U.S. 91, ARE BOTH SO INTIMATELY CONNECTED WITH
LILLY'S RIGHT TO ACCESS TO THE LOCAL MARKET, FREE OF LOCAL CONTROLS,
THAT THEY CANNOT BE SEPARATED OFF AS "LOCAL BUSINESS" EVEN IF THEY ARE
CONDUCTED WHOLLY WITHIN NEW JERSEY.  HOWEVER, I DO NOT THINK THAT THE
SYSTEMATIC PROMOTION OF LILLY'S PRODUCTS AMONG LOCAL RETAILERS AND
CONSUMERS WHO, AS LILLY CONDUCTS ITS AFFAIRS, CAN ONLY PURCHASE THEM
FROM A NEW JERSEY WHOLESALER BEARS THE SAME CLOSE RELATIONSHIP TO THE
NECESSITIES OF KEEPING THE CHANNELS OF INTERSTATE COMMERCE STATE
UNBURDENED.  I BELIEVE THAT NEW JERSEY CAN TREAT AS "LOCAL BUSINESS"
SUCH PROMOTIONAL ACTIVITIES, WHICH ARE POINTED AT AND RESULT INITIALLY
IN LOCAL SALES BY LILLY'S CUSTOMERS, AND NOT IN DIRECT SALES FROM ITS
OWN OUT-OF-STATE STORE OF GOODS.  (FN2)  THREE FACTORS, PARTICULARLY,
PERSUADE ME TO THAT VIEW. 

FIRST:  A LICENSING REQUIREMENT, AS APPLIED IN THIS SITUATION, DOES
NOT DENY LILLY A SIGNIFICANT OPPORTUNITY TO REACH NEW JERSEY
CUSTOMERS.  APPELLANT REMAINS FREE, AND IS CONSTITUTIONALLY ENTITLED TO
REMAIN FREE, TO SOLICIT PURCHASES DIRECTLY BY NEW JERSEY RETAILERS AND
CONSUMERS OR, ALTERNATIVELY, TO RELY ON ITS WHOLESALERS TO DEVELOP THE
NEW JERSEY MARKET.  THUS, LILLY IS NOT IN THE POSITION OF THE
MANUFACTURER WITH WHOSE PROTECTION MR. JUSTICE BRADLEY WAS CONCERNED
WHEN, IN ROBBINS V. SHELBY COUNTY, SUPRA, AT 494, HE ASKED:  "HOW IS A
MANUFACTURER, OR A MERCHANT, OF ONE STATE, TO SELL HIS GOODS IN ANOTHER
STATE, WITHOUT, IN SOME WAY, OBTAINING ORDERS THEREFOR?  MUST HE BE
COMPELLED TO SEND THEM AT A VENTURE, WITHOUT KNOWING WHETHER THERE IS
ANY DEMAND FOR THEM?" 

SECOND: WERE LILLY, FOR A DISTINCT CONSIDERATION, TO ENTER INTO AN
ARRANGEMENT WITH ITS NEW JERSEY WHOLESALERS TO PROMOTE OR SOLICIT
BUSINESS WITHIN THE STATE FOR THEIR ACCOUNT, I WOULD SUPPOSE IT
SCARCELY DOUBTFUL THAT SUCH AN ENDEAVOR WOULD CONSTITUTE A LOCAL
INCIDENT SUBJECT TO THE STATE'S LICENSING POWER, EVEN THOUGH THE
ULTIMATE PURPOSE AND EFFECT OF THE ARRANGEMENT ITSELF WERE ALSO TO
ENHANCE LILLY'S OWN INTERSTATE BUSINESS.  I DO NOT SEE WHY NEW JERSEY
MUST TREAT DIFFERENTLY LILLY'S PRESENT ACTIVITIES, WHICH IN FACT
REDOUND BOTH TO THE WHOLESALERS' BENEFIT, BY LESSENING THE NEED FOR
PROMOTIONAL EFFORT AND EXPENSE ON THEIR PART, AND TO LILLY'S PROFIT, IN
THE FORM OF INCREASED ORDERS FROM WHOLESALERS.  SEE CHENEY BROTHERS V.
MASSACHUSETTS, 246 U.S. 147; (FN3) CF. NORTON CO. V. DEPARTMENT OF
REVENUE, 340 U.S. 534, 536, 537-539.  A DIFFERENT CONSTITUTIONAL RESULT
IS NOT INDICATED BY THE CIRCUMSTANCE THAT NO CONSIDERATION, OTHER THAN
THE PURCHASE PRICE FOR GOODS BOUGHT, IS PAID LILLY BY THE WHOLESALERS
AND THAT THE BENEFIT TO LILLY FROM SUCH LOCAL SERVICE COMES FROM THE
RESULTING INCREASE IN INTERSTATE SALES.  THE ESSENTIAL POINT IS THAT
LILLY'S NEW JERSEY ACTIVITIES WERE "WHOLLY SEPARATE FROM INTERSTATE
COMMERCE, INVOLVED NO QUESTION OF THE DELIVERY OF PROPERTY SHIPPED IN
INTERSTATE COMMERCE OR OF THE RIGHT TO COMPLETE AN INTERSTATE COMMERCE
TRANSACTION, BUT CONCERNED MERELY THE DOING OF A LOCAL ACT AFTER
INTERSTATE COMMERCE HAD COMPLETELY TERMINATED."  BROWNING V. WAYCROSS,
233 U.S. 16, 22-23.  (FN4) 

THIRD:  I CANNOT AGREE THAT THE EFFECT OF THE DECISION IN THIS CASE
"IS TO REPUDIATE THE WHOLE LINE OF 'DRUMMER' CASES."  WE HAVE NOT BEEN
REFERRED TO ANY CASE IN WHICH AN INTERSTATE SELLER HAS BEEN GRANTED AN
IMMUNITY FROM A STATE-LICENSE REQUIREMENT WHERE THE SELLER HAS PROMOTED
OR PARTICIPATED IN TRANSACTIONS BETWEEN A LOCAL VENDOR AND A LOCAL
PURCHASER INVOLVING GOODS ALREADY WITHIN THE STATE.  CF. WAGNER V. CITY
OF COVINGTON, 251 U.S. 95.  THE ONLY ASPECT OF THE PRESENT CASE THAT
RESEMBLES THE "DRUMMER" CASES IS THE FACT THAT LILLY'S PROMOTION OF
LOCAL SALES ULTIMATELY SERVES TO INCREASE ITS INTERSTATE SALES.  TO
TREAT THIS FACTOR AS BRINGING THE PRESENT SITUATION WITHIN THE DRUMMER
CASES WOULD, IN MY VIEW, BE SUBSTANTIALLY TO EXTEND THE REACH OF THOSE
CASES.  I AM NOT PREPARED TO SUBSCRIBE TO SUCH AN EXTENSION AT THE
EXPENSE OF STATE POWER TO REGULATE THE PROMOTION OF SALES OF GOODS
OWNED AND LOCATED WITHIN THE STATE WHEN THE COUNTERVAILING FEDERAL
CONSIDERATIONS ARE AS THIN AS THEY SEEM TO ME TO BE HERE, AND WHEN THE
INTERSTATE SELLER REMAINS FREE TO ENJOY THE IMMUNITIES OF INTERSTATE
COMMERCE BY SIMPLY RESTRICTING ITS PROMOTION TO THOSE WHO MAY BUY FROM
ITS OWN OUT-OF-STATE STORE OF GOODS. 

FINALLY, WHILE I AM LESS CLEAR THAN THE REST OF THE MAJORITY THAT THE
STATE COURTS BASED THEIR DECISION ON A FINDING OF "LOCAL BUSINESS," I
DO NOT BELIEVE THAT ANY DOUBT ON THAT SCORE FORECLOSES US FROM NOW
SUSTAINING THE STATE ON THAT GROUND WHERE, AS HERE, THE FACTS LEADING
TO THAT CONCLUSION ARE NOT IN DISPUTE.  SEE NASHVILLE, C. & ST. L.R.
CO. V. BROWNING, 310 U.S. 362.  (FN5) 

FN1  BECAUSE I AM OF THE VIEW THAT ELI LILLY HAS ENGAGED IN "LOCAL
BUSINESS" IN NEW JERSEY, THERE IS NO NEED NOW TO CONSIDER WHETHER A
WHOLLY INTERSTATE BUSINESS ENJOYS THE SAME DEGREE OF IMMUNITY FROM
STATE LICENSING PROVISIONS WHEN THE STATE REQUIREMENT IS REGULATORY AS
IT DOES WHEN THE STATE REQUIREMENT IS PURELY A TAX MEASURE.  COMPARE
CALIFORNIA V. THOMPSON, 313 U.S. 109, AND UNION BROKERAGE CO. V.
JENSEN, 322 U.S. 202, WITH NIPPERT V. RICHMOND, 327 U.S. 416, AND
SPECTOR MOTOR SERVICE, INC., V. O'CONNOR, 340 U.S. 602; AND SEE POWELL,
VAGARIES AND VARIETIES IN CONSTITUTIONAL INTERPRETATION, 172-176, 186
187. 

FN2  THERE CAN BE NO DOUBT THAT THE "PROMOTIONAL AND INFORMATIONAL"
ACTIVITIES OF LILLY IN NEW JERSEY WERE SPECIFICALLY AIMED AT SECURING
RETAIL AND CONSUMER TRADE FOR ITS LOCAL WHOLESALERS.  ONE OF THE TWO
AFFIDAVITS SUBMITTED BY LILLY IN OPPOSITION TO THE MOTION BELOW
STATES: 

"THE PRIMARY PURPOSE OF SAID EMPLOYEES (STATIONED IN NEW JERSEY) IS
TO ACQUAINT RETAIL PHARMACISTS, PHYSICIANS, AND HOSPITALS WITH THE
PRODUCTS OF ELI LILLY AND COMPANY SO THAT THE SAID RETAIL PHARMACISTS,
PHYSICIANS, AND HOSPITALS WILL ORDER LILLY PRODUCTS FROM LOCAL
WHOLESALE DISTRIBUTORS." 

THE OTHER SUCH AFFIDAVIT STATES: 

"IT IS THE FUNCTION OF SAID DETAIL MEN (LILLY EMPLOYEES STATIONED IN
NEW JERSEY) ONLY TO VISIT RETAIL PHARMACISTS, PHYSICIANS AND HOSPITALS
AND TO ACQUAINT SAME WITH THE VARIOUS PRODUCTS OF ELI LILLY AND
COMPANY, WITH A VIEW TO ENCOURAGING THE PURCHASE AND USE OF SAID RETAIL
PRODUCTS BY SUCH INSTITUTIONS AND PROFESSIONAL MEN.  THE WORK OF THE
DETAIL MEN IS PROMOTIONAL AND INFORMATIONAL ONLY.  THEY DO NOT ACCEPT
ORDERS UNDER ANY CIRCUMSTANCES FOR THE PURCHASE OF ELI LILLY AND
COMPANY PRODUCTS.  PRODUCTS OF ELI LILLY AND COMPANY ARE SOLD TO
RETAILERS IN THE STATE OF NEW JERSEY BY WHOLESALE DISTRIBUTORS.  ON
OCCASION, DETAIL MEN OF ELI LILLY AND COMPANY MAY, AS A SERVICE TO THE
RETAILER, RECEIVE AN ORDER FOR ELI LILLY AND COMPANY PRODUCTS ONLY FOR
THE PURPOSE OF TRANSMITTING SAME TO THE WHOLESALER.  ORDERS SO RECEIVED
AND TRANSMITTED ARE THEN SUBJECT TO ACCEPTANCE OR REJECTION BY THE
WHOLESALER." 

TO THE SAME EFFECT ARE THE FINDINGS OF THE STATE COURT WHICH ARE SET
FORTH IN THIS COURT'S OPINION.  ANTE, P. 279. 

FN3  I RECOGNIZE THAT THE FORCE OF THE CHENEY BROTHERS CASE, AT LEAST
IN THE FIELD OF STATE INCOME TAXATION, HAS BEEN IMPAIRED BY THE ACT OF
SEPTEMBER 14, 1959, PUB. L. 86-272, 73 STAT. 555, WHICH WAS PASSED BY
THE CONGRESS IN RESPONSE TO OUR DECISION IN NORTHWESTERN CEMENT CO. V.
MINNESOTA, 358 U.S. 450.  EVEN SO, IT SHOULD BE OBSERVED THAT THE
STATUTE, WHICH IMMUNIZES FROM THE REACH OF STATE INCOME TAXATION A
FOREIGN CONCERN'S INTRASTATE SOLICITATION OF ORDERS "FOR THE BENEFIT OF
A PROSEPCTIVE INTERSTATE CUSTOMER," DOES NOT INCLUDE WITHIN SUCH
IMMUNITY SITUATIONS WHERE THE FOREIGN SELLER MAINTAINS A LOCAL OFFICE
FOR THE PURPOSE OF SUCH SOLICITATION.  SEE SEC. 101(C) OF THE STATUTE
AND 105 CONG. REC. 16469-16477.  LILLY MAINTAINS AN OFFICE IN NEW
JERSEY IN CONNECTION WITH ITS PROMOTIONAL ACTIVITIES.  RELIANCE ON THE
NORTHWESTERN CEMENT OPINION'S CHARACTERIZATION OF ACTIVITIES SIMILAR TO
THOSE OF LILLY AS BEING "EXCLUSIVELY IN FURTHERANCE OF INTERSTATE
COMMERCE" SEEMS TO ME TO BE STRETCHING TOO FAR A CASUAL REFERENCE WHICH
WAS QUITE UNNECESSARY TO THE ISSUE DECIDED BY THE COURT IN THAT CASE. 

FN4  IN THE BROWNING CASE AN AGENT OF AN OUT-OF-STATE SELLER OF
LIGHTNING RODS, WHO WAS ENGAGED IN INSTALLING LIGHTNING RODS, PURCHASED
IN INTERSTATE COMMERCE, FOR THE CUSTOMERS OF SUCH SELLER, WAS HELD
SUBJECT TO A STATE TAX ON THE OCCUPATION OF ERECTING LIGHTNING RODS,
DESPITE THE FACT THAT THE CONTRACT FOR THE PURCHASE OF SUCH RODS
OBLIGATED THE SELLER TO INSTALL THE RODS AT ITS OWN EXPENSE.  THE COURT
OBSERVED THAT "IT WAS NOT WITHIN THE POWER OF THE PARTIES BY THE FORM
OF THEIR CONTRACT TO CONVERT WHAT WAS EXCLUSIVELY A LOCAL BUSINESS,
SUBJECT TO STATE CONTROL, INTO AN INTERSTATE COMMERCE BUSINESS
PROTECTED BY THE COMMERCE CLAUSE."  ID., AT P. 23. 

FN5  I DO NOT REGARD SUCH CASES AS SPROUT V. SOUTH BEND, 277 U.S.
163, AND LELOUP V. PORT OF MOBILE, 127 U.S. 640, AS CONTROLLING
CONTRARY AUTHORITY IN LIGHT OF THE OPINION OF THE NEW JERSEY SUPERIOR
COURT WHICH SUGGESTS THAT THE STATE STATUTE MAY APPLY ONLY TO
CONSTITUTIONALLY LICENSABLE LOCAL BUSINESS.  IN THIS REGARD SEE THE
SUPERIOR COURT'S LATER OPINION IN UNITED STATES TIME CORP. V. GRAND
UNION CO., 64 N.J. SUPER.  39, 165 A.2D 310. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
WHITTAKER AND MR. JUSTICE STEWART CONCUR, DISSENTING. 

THE COURT, WITH ALL DEFERENCE, BLENDS IN THIS OPINION THREE DISTINCT
LINES OF DECISIONS WHICH UNTIL TODAY HAVE BEEN CONSIDERED SEPARATE. 
THEY DO INDEED PRESENT DIFFERENT PROBLEMS ONE FROM THE OTHER.  I REFER
TO OUR DECISIONS CONCERNING THE POWER OF A STATE (1) TO TAX AN
INTERSTATE ENTERPRISE, (2) TO SUBJECT IT TO LOCAL SUITS, AND (3) TO
LICENSE IT. 

(1)  IF NEW JERSEY SOUGHT TO COLLECT FROM APPELLANT A TAX APPORTIONED
TO SOME LOCAL BUSINESS ACTIVITY WHICH IT CARRIES ON IN THAT STATE, I
WOULD SEE NO CONSTITUTIONAL OBJECTION TO IT. NORTHWESTERN CEMENT CO. V.
MINNESOTA, 358 U.S. 450.  SUCH AN APPORTIONED TAX IMPOSED BY NEW JERSEY
WOULD HAVE RELATION "TO OPPORTUNITIES WHICH IT HAS GIVEN, TO PROTECTION
WHICH IT HAS AFFORDED, TO BENEFITS WHICH IT HAS CONFERRED."  WISCONSIN
V. PENNEY CO., 311 U.S. 435, 444. 

(2)  IF APPELLANT WERE SUED IN NEW JERSEY, I THINK ITS CONNECTIONS
WITH THAT STATE HAVE BEEN SUFFICIENT TO MAKE IT SUBJECT TO THE
JURISDICTION OF THE STATE COURTS (INTERNATIONAL SHOE CO. V. WASHINGTON,
326 U.S. 310), AT LEAST AS TO SUITS WHICH REVEAL A "SUBSTANTIAL
CONNECTION" WITH THE STATE.  MCGEE V. INTERNATIONAL LIFE INS. CO., 355
U.S. 220.  CF. HANSON V. DENCKLA, 357 U.S. 235, 250-255. 

(3)  THE PRESENT CASE FALLS IN NEITHER OF THOSE TWO CATEGORIES.  NEW
JERSEY DEMANDS THAT APPELLANT OBTAIN FROM IT A CERTIFICATE AUTHORIZING
IT TO DO BUSINESS IN THE STATE, ABSENT WHICH SHE DENIES APPELLANT
ACCESS TO HER COURTS.  THE CASE THUS PRESENTS THE STRIKINGLY DIFFERENT
ISSUE - WHETHER AN INTERSTATE BUSINESS CAN BE SUBJECTED TO A LICENSING
SYSTEM. 

I PUT TO ONE SIDE CASES SUCH AS UNION BROKERAGE CO. V. JENSEN, 322
U.S. 202, AND RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218, WHERE THE
ISSUE WAS WHETHER A COMPANY DOING BUSINESS IN THE STATE WAS EXEMPT FROM
A REGULATION OF THIS KIND BECAUSE CONGRESS HAD SUBJECTED IT TO A
LICENSING SYSTEM.  I ALSO PUT TO ONE SIDE RAILWAY EXPRESS CO. V.
VIRGINIA, 282 U.S. 440, WHERE A COMPANY, DOING AN INTRASTATE* AS WELL
AS AN INTERSTATE EXPRESS BUSINESS, WAS REQUIRED TO OBTAIN A CERTIFICATE
AUTHORIZING IT TO CONDUCT AN INTRASTATE BUSINESS.  THE QUESTION HERE IS
WHETHER A STATE CAN REQUIRE A LICENSE FOR THE DOING OF AN INTERSTATE
BUSINESS.  THE POWER TO LICENSE THE EXERCISE OF A FEDERAL RIGHT, LIKE
THE POWER TO TAX IT, IS "THE POWER TO CONTROL OR SUPPRESS ITS
ENJOYMENT."  MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 112.  SOLICITING
INTERSTATE BUSINESS HAS UP TO THIS DAY BEEN ON THE SAME BASIS AS DOING
AN INTERSTATE BUSINESS, SO FAR AS THE PROTECTION OF THE COMMERCE CLAUSE
IS CONCERNED.  IT HAS USUALLY BEEN ARGUED THAT SOLICITING INTERSTATE
BUSINESS IS A "LOCAL ACTIVITY" THAT CAN BE LICENSED BY A STATE OR ON
WHICH A STATE MAY LAY A PRIVILEGE TAX.  THAT WAS THE ARGUMENT IN
NIPPERT V. RICHMOND, 327 U.S. 416, 420; MEMPHIS STEAM LAUNDRY V. STONE,
342 U.S. 389, 392.  WE REJECTED IT, POINTING OUT THAT IN THE LONG LINE
OF CASES BEGINNING WITH ROBBINS V. SHELBY COUNTY, 120 U.S. 489, "THIS
COURT HAS HELD THAT A TAX IMPOSED UPON THE SOLICITATION OF INTERSTATE
BUSINESS IS A TAX UPON INTERSTATE COMMERCE ITSELF."  342 U.S., AT 392
393. 

*IN THAT CASE, THE EXPRESS COMPANY PICKED UP AND DELIVERED ARTICLES
WITHIN VIRGINIA AS WELL AS SHIPPED OTHER ARTICLES INTO AND OUT OF THE
STATE. 

WHAT APPELLANT'S EMPLOYEES DO IN NEW JERSEY IS CERTAINLY NO MORE THAN
WHAT A "DRUMMER" FOR AN INTERSTATE HOUSE DOES.  THE RECORD SHOWS THAT
PETITIONER'S EMPLOYEES ENGAGE IN THE FOLLOWING ACTIVITIES IN NEW
JERSEY: 

"IT IS THE FUNCTION OF THE DETAILMEN TO VISIT RETAIL PHARMACISTS,
PHYSICIANS AND HOSPITALS IN ORDER TO ACQUAINT THEM WITH THE PRODUCTS OF
THE PLAINTIFF WITH A VIEW TO ENCOURAGING THE USE OF THESE PRODUCTS. 
PLAINTIFF CONTENDS THAT THEIR WORK IS 'PROMOTIONAL AND INFORMATIONAL
ONLY.'  ON AN OCCASION, THESE DETAILMEN, 'AS A SERVICE TO THE
RETAILER,' MAY RECEIVE AN ORDER FOR PLAINTIFF'S PRODUCTS FOR
TRANSMITTAL TO A WHOLESALER.  THEY EXAMINE THE STOCKS AND INVENTORY OF
RETAILERS AND MAKE RECOMMENDATIONS TO THEM RELATING TO THE SUPPLYING
AND MERCHANDISING OF PLAINTIFF'S PRODUCTS.  THEY ALSO MAKE AVAILABLE TO
RETAIL DRUGGISTS, FREE OF CHARGE, ADVERTISING AND PROMOTIONAL
MATERIAL.  WHEN DEFENDANT OPENED ITS STORE IN CARTERET, PLAINTIFF
OFFERED TO PROVIDE, AND DID PROVIDE, ANNOUNCEMENTS FOR MAILING TO THE
MEDICAL PROFESSION, WITHOUT COST TO DEFENDANT.  THE SAME THING OCCURRED
WHEN DEFENDANT OPENED ITS PLAINFIELD STORE." 

IN ROBBINS V. SHELBY COUNTY, SUPRA, P. 491, THE "DRUMMER" WHO FAILED
TO TAKE OUT A LICENSE FROM THE STATE WAS DOING THE FOLLOWING: 

"SABINE ROBBINS  ...  A CITIZEN AND RESIDENT OF CINCINNATI, OHIO,
...  WAS ENGAGED IN THE BUSINESS OF DRUMMING IN THE TAXING DISTRICT OF
SHELBY COUNTY, TENN.; I.E., SOLICITING TRADE BY THE USE OF SAMPLES FOR
THE HOUSE OR FIRM FOR WHICH HE WORKED AS A DRUMMER, SAID FIRM BEING THE
FIRM OF 'ROSE, ROBBINS & CO.,' DOING BUSINESS IN CINCINNATI, AND ALL
THE MEMBERS OF SAID FIRM BEING CITIZENS AND RESIDENTS OF CINCINNATI,
OHIO." 

IN THIS CASE, APPELLANT'S EMPLOYEES WITHIN THE STATE WERE ENGAGED
SOLELY IN THE "DRUMMING UP" OF APPELLANT'S INTERSTATE TRADE.  THEY DID
THIS, NOT BY DIRECT SOLICITATION OF THE INTERSTATE BUYERS, BUT BY
CONTACTS WITH THE CUSTOMERS OF THE BUYERS.  SUCH ACTIVITIES WERE SAID
TO BE "EXCLUSIVELY IN FURTHERANCE OF INTERSTATE COMMERCE" ONLY TWO
YEARS AGO IN NORTHWESTERN CEMENT CO. V. MINNESOTA, SUPRA, 452, 455. 
YET TODAY THE COURT FINDS THESE ACTIVITIES TO BE SEPARABLE FROM
APPELLANT'S INTERSTATE BUSINESS; APPELLANT IS "INDUCING" SALES, NOT
"SOLICITING" THEM.  IT IS NOT A DISTINCTION I CAN ACCEPT. 

WE DEAL HERE WITH A GENERAL STATE REGULATORY MEASURE.  UNDER OUR
PRECEDENTS, ACCESS TO STATE COURTS CANNOT BE BARRED TO "A FOREIGN
CORPORATION MERELY COMING INTO THE STATE TO CONTRIBUTE TO OR TO
CONCLUDE A UNITARY INTERSTATE TRANSACTION."  UNION BROKERAGE CO. V.
JENSEN, 322 U.S. 202, 211.  YET THAT IS WHAT NEW JERSEY CLAIMS THE
POWER TO DO.  WE HAVE STRUCK DOWN SIMILAR STATE REQUIREMENTS WHICH
BARRED ACCESS TO STATE COURTS TO RECOVER THE PURCHASE PRICE ON AN
INTERSTATE CONTRACT, INTERNATIONAL TEXTBOOK CO. V. PIGG, 217 U.S. 91,
TO RECOVER FOR THE BREACH OF AN INTERSTATE CONTRACT OF SALE, DAHNKE
WALKER CO. V. BONDURANT, 257 U.S. 282, AND TO ATTACK AS FRAUDULENT THE
TRANSFER OF ASSETS OF A DOMESTIC DEBTOR, BUCK STOVE CO. V. VICKERS, 226
U.S. 205.  SURELY, THE CAUSE OF ACTION HERE ASSERTED DOES NOT INVOLVE A
STATE INTEREST MORE COMPELLING THAN THE PROTECTION OF DOMESTIC DEBTORS
OR THE STABILITY OF TITLE TO DOMESTIC LANDS. 

THE COURT PLACES SPECIAL RELIANCE ON CHENEY BROS. CO. V.
MASSACHUSETTS, 246 U.S. 147, 155, WHERE MASSACHUSETTS' IMPOSITION OF AN
"EXCISE TAX" ON THE NORTHWESTERN CONSOLIDATED MILLING COMPANY WAS
UPHELD.  THERE THE ENTIRE ACTIVITY OF THE FOREIGN CORPORATION IN THE
STATE WAS THE DIRECT SOLICITATION OF ORDERS FOR LOCAL WHOLESALERS. 
HERE THE DOMINANT ACTIVITY IS NOTHING MORE THAN ADVERTISING AND PUBLIC
RELATIONS.  THESE ARE THE MINIMUM ACTIVITIES IN WHICH EVERY "DRUMMER"
FOR AN OUT-OF-STATE CONCERN ENGAGES. 

TO HOLD THAT NEW JERSEY CAN LICENSE APPELLANT IN THIS CASE IS TO
REPUDIATE THE WHOLE LINE OF "DRUMMER" CASES. 

THIS CASE ON ITS OWN MAY DO LITTLE INJURY.  BUT IT PROVIDES THE
FORMULA WHEREBY A STATE CAN STAND OVER THE CHANNELS OF INTERSTATE
COMMERCE IN A WAY THAT PROMISES TO DO GREAT HARM TO THE NATIONAL MARKET
THAT HERETOFORE THE COMMERCE CLAUSE HAS PROTECTED. 
..END :







LOUISIANA, GREMILLION V. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE 366 U.S. 293 


NO. 294.  ARGUED APRIL 26, 1961 - DECIDED MAY 22, 1961 - 181 F. SUPP.
37, AFFIRMED. 


THE STATE OF LOUISIANA SUED IN A STATE COURT TO ENJOIN THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE FROM DOING BUSINESS
IN THE STATE BECAUSE OF ITS FAILURE TO COMPLY WITH A STATE LAW
REQUIRING CERTAIN TYPES OF ORGANIZATIONS TO FILE ANNUALLY WITH THE
SECRETARY OF STATE LISTS OF THEIR OFFICERS AND MEMBERS.  THAT SUIT WAS
REMOVED TO A FEDERAL DISTRICT COURT AND APPELLEES SUED THERE FOR A
JUDGMENT DECLARING UNCONSTITUTIONAL THAT STATUTE AND ANOTHER REQUIRING
EACH NONTRADING ASSOCIATION TO FILE ANNUALLY AN AFFIDAVIT THAT NONE OF
THE OFFICERS OF ANY OUT-OF-STATE ASSOCIATION WITH WHICH IT IS
AFFILIATED IS A MEMBER OF ANY COMMUNIST, COMMUNIST-FRONT OR SUBVERSIVE
ORGANIZATION.  THE CASES WERE CONSOLIDATED, AND, AFTER A HEARING ON
AFFIDAVITS AND ORAL ARGUMENT, THE DISTRICT COURT ENTERED A TEMPORARY
INJUNCTION THAT DENIED RELIEF TO THE STATE AND ITS OFFICERS AND
ENJOINED THEM FROM ENFORCING THE TWO STATUTES IN QUESTION.  HELD:  THE
JUDGMENT IS AFFIRMED.  PP. 294-297. 

(A)  IT IS NOT CONSONANT WITH DUE PROCESS TO REQUIRE A PERSON TO
SWEAR TO A FACT THAT HE CANNOT BE EXPECTED TO KNOW OR ALTERNATIVELY TO
REFRAIN FROM A WHOLLY LAWFUL ACTIVITY.  PP. 294-295. 

(B)  THE CASE IS IN A PRELIMINARY STAGE, AND IT IS NOT NOW KNOWN WHAT
FACTS WILL BE DISCLOSED IN FURTHER HEARINGS BEFORE THE INJUNCTION
BECOMES FINAL; BUT, IF IT BE SHOWN THAT DISCLOSURE OF THE ASSOCIATION'S
MEMBERSHIP LISTS RESULTS IN REPRISALS AND HOSTILITY TO MEMBERS, SUCH
DISCLOSURE MAY NOT BE REQUIRED CONSISTENTLY WITH THE FIRST AMENDMENT,
MADE APPLICABLE TO THE STATES BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  N.A.A.C.P. V. ALABAMA, 357 U.S. 449; BATES V.
LITTLE ROCK, 361 U.S. 516.  PP. 295-297. 

LOUISIANA EX REL. GREMILLION, ATTORNEY GENERAL, ET AL. V. NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ONE OF THE SUITS THAT IS CONSOLIDATED IN THIS APPEAL WAS INSTITUTED
IN 1956 BY THE THEN ATTORNEY GENERAL OF LOUISIANA AGAINST APPELLEE, THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, IN A
LOUISIANA COURT AND SOUGHT TO ENJOIN IT FROM DOING BUSINESS IN THE
STATE.  IT WAS REMOVED TO THE FEDERAL COURT.  (FN1)  THEREAFTER NAACP
SUED APPELLANTS IN THE FEDERAL COURT ASKING FOR A DECLARATORY JUDGMENT
THAT TWO LAWS OF LOUISIANA WERE UNCONSTITUTIONAL.  A THREE-JUDGE COURT
WAS CONVENED (28 U.S.C. SEC. 2281) AND THE CASES WERE CONSOLIDATED. 
AFTER A HEARING (ON AFFIDAVITS) AND ORAL ARGUMENT, THE COURT ENTERED A
TEMPORARY INJUNCTION THAT DENIED RELIEF TO APPELLANTS AND ENJOINED THEM
FROM ENFORCING THE TWO LAWS IN QUESTION.  181 F. SUPP. 37.  THE CASE IS
HERE ON APPEAL.  28 U.S.C. SEC. 1253.  WE NOTED PROBABLE JURISDICTION. 
364 U.S. 869. 

ONE OF THE TWO STATUTES OF LOUISIANA IN QUESTION PROHIBITS ANY "NON
TRADING" ASSOCIATION FROM DOING BUSINESS IN LOUISIANA IF IT IS
AFFILIATED WITH ANY "FOREIGN OR OUT OF STATE NON-TRADING" ASSOCIATION
"ANY OF THE OFFICERS OR MEMBERS OF THE BOARD OF DIRECTORS OF WHICH ARE
MEMBERS OF COMMUNIST, COMMUNIST-FRONT OR SUBVERSIVE ORGANIZATIONS, AS
CITED BY THE HOUSE OF CONGRESS UNAMERICAN ACTIVITIES COMMITTEE, OR THE
UNITED STATES ATTORNEY."  (FN2)  EVERY NONTRADING ASSOCIATION
AFFILIATED WITH AN OUT-OF-STATE ASSOCIATION MUST FILE ANNUALLY WITH
LOUISIANA'S SECRETARY OF STATE AN AFFIDAVIT THAT "NONE OF THE OFFICERS"
OF THE AFFILIATE IS "A MEMBER" OF ANY SUCH ORGANIZATION.  (FN3)
PENALTIES AGAINST THE OFFICERS AND MEMBERS ARE PROVIDED FOR FAILURE TO
FILE THE AFFIDAVIT AND FOR FALSE FILINGS. 

THE NAACP IS A NEW YORK CORPORATION WITH SOME FORTY-EIGHT DIRECTORS,
TWENTY VICE-PRESIDENTS, AND TEN CHIEF EXECUTIVE OFFICERS.  ONLY A FEW
RESIDE OR WORK IN LOUISIANA.  THE DISTRICT COURT COMMENTED THAT THE
STATUTE "WOULD REQUIRE THE IMPOSSIBLE" OF THE LOUISIANA RESIDENTS OR
WORKERS.  181 F. SUPP., AT 40.  WE HAVE RECEIVED NO SERIOUS REPLY TO
THAT CRITICISM.  SUCH A REQUIREMENT IN A LAW COMPOUNDS THE VICES
PRESENT IN STATUTES STRUCK DOWN ON ACCOUNT OF VAGUENESS.  CF. WINTERS
V. NEW YORK, 333 U.S. 507.  IT IS NOT CONSONANT WITH DUE PROCESS TO
REQUIRE A PERSON TO SWEAR TO A FACT THAT HE CANNOT BE EXPECTED TO KNOW
(CF. TOT V. UNITED STATES, 319 U.S. 463) OR ALTERNATIVELY TO REFRAIN
FROM A WHOLLY LAWFUL ACTIVITY. 

THE OTHER STATUTE (FN4) REQUIRES THE PRINCIPAL OFFICER OF "EACH
FRATERNAL, PATRIOTIC, CHARITABLE, BENEVOLENT, LITERARY, SCIENTIFIC,
ATHLETIC, MILITARY, OR SOCIAL ORGANIZATION, OR ORGANIZATION CREATED FOR
SIMILAR PURPOSES" AND OPERATING IN LOUISIANA TO FILE WITH THE SECRETARY
OF STATE ANNUALLY "A FULL, COMPLETE AND TRUE LIST OF THE NAMES AND
ADDRESSES OF ALL OF THE MEMBERS AND OFFICERS" IN THE STATE.  MEMBERS OF
ORGANIZATIONS WHOSE LISTS HAVE NOT BEEN FILED ARE PROHIBITED FROM
HOLDING OR ATTENDING ANY MEETING OF THE ORGANIZATION.  CRIMINAL
PENALTIES ARE ATTACHED BOTH TO OFFICERS AND TO MEMBERS. 

WE ARE TOLD THAT THIS LAW WAS PASSED IN 1924 TO CURB THE KU KLUX
KLAN, BUT THAT IT WAS NEVER ENFORCED AGAINST ANY OTHER ORGANIZATION
UNTIL THIS LITIGATION STARTED; THAT WHEN THE STATE BROUGHT ITS SUIT
SOME AFFILIATES OF NAACP IN LOUISIANA FILED MEMBERSHIP LISTS; AND THAT
AFTER THOSE FILINGS, MEMBERS WERE SUBJECTED TO ECONOMIC REPRISALS.  181
F. SUPP., AT 39.  THE STATE DENIES THAT THIS LAW IS PRESENTLY BEING
ENFORCED ONLY AGAINST NAACP; IT ALSO CHALLENGES THE ASSERTIONS THAT
DISCLOSURE OF MEMBERSHIP IN THE NAACP RESULTS IN REPRISALS.  WHILE
HEARINGS WERE HELD BEFORE THE TEMPORARY INJUNCTION ISSUED, THE CASE IS
IN A PRELIMINARY STAGE AND WE DO NOT KNOW WHAT FACTS FURTHER HEARINGS
BEFORE THE INJUNCTION BECOMES FINAL MAY DISCLOSE.  IT IS CLEAR FROM OUR
DECISIONS THAT NAACP HAS STANDING TO ASSERT THE CONSTITUTIONAL RIGHTS
OF ITS MEMBERS.  N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 459.  WE DEAL
WITH A CONSTITUTIONAL RIGHT, SINCE FREEDOM OF ASSOCIATION IS INCLUDED
IN THE BUNDLE OF FIRST AMENDMENT RIGHTS MADE APPLICABLE TO THE STATES
BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  ID., P. 460;
BATES V. LITTLE ROCK, 361 U.S. 516, 523.  AND WHERE IT IS SHOWN, AS IT
WAS IN N.A.A.C.P. V. ALABAMA, SUPRA, 462-463, THAT DISCLOSURE OF
MEMBERSHIP LISTS RESULTS IN REPRISALS AGAINST AND HOSTILITY TO THE
MEMBERS, DISCLOSURE IS NOT REQUIRED.  AND SEE BATES V. LITTLE ROCK,
SUPRA, 523-524. 

WE ARE IN AN AREA WHERE, AS SHELTON V. TUCKER, 364 U.S. 479,
EMPHASIZED, ANY REGULATION MUST BE HIGHLY SELECTIVE IN ORDER TO SURVIVE
CHALLENGE UNDER THE FIRST AMENDMENT.  AS WE THERE STATED:  " ...  EVEN
THOUGH THE GOVERNMENTAL PURPOSE BE LEGITIMATE AND SUBSTANTIAL, THAT
PURPOSE CANNOT BE PURSUED BY MEANS THAT BROADLY STIFLE FUNDAMENTAL
PERSONAL LIBERTIES WHEN THE END CAN BE MORE NARROWLY ACHIEVED."  ID.,
488. 

THE MOST FREQUENT EXPRESSIONS OF THAT VIEW HAVE BEEN MADE IN CASES
DEALING WITH LOCAL ORDINANCES REGULATING THE DISTRIBUTION OF
LITERATURE.  BROAD COMPREHENSIVE REGULATIONS OF THOSE FIRST AMENDMENT
RIGHTS HAVE BEEN REPEATEDLY STRUCK DOWN (LOVELL V. GRIFFIN, 303 U.S.
444; SCHNEIDER V. STATE, 308 U.S. 147; CANTWELL V. CONNECTICUT, 310
U.S. 296), THOUGH THE POWER TO REGULATE THE TIME, MANNER, AND PLACE OF
DISTRIBUTION WAS NEVER DOUBTED.  AS STATED IN SCHNEIDER V. STATE,
SUPRA, 160-161, THE MUNICIPAL AUTHORITIES HAVE THE RIGHT TO "REGULATE
THE CONDUCT OF THOSE USING THE STREETS," TO PROVIDE TRAFFIC
REGULATIONS, TO PREVENT "THROWING LITERATURE BROADCAST IN THE STREETS,"
AND THE LIKE.  YET, WHILE PUBLIC SAFETY, PEACE, COMFORT, OR CONVENIENCE
CAN BE SAFEGUARDED BY REGULATING THE TIME AND MANNER OF SOLICITATION
(CANTWELL V. CONNECTICUT, SUPRA, 306-307), THOSE REGULATIONS NEED TO BE
"NARROWLY DRAWN TO PREVENT THE SUPPOSED EVIL."  ID., 307.  AND SEE
TALLEY V. CALIFORNIA, 362 U.S. 60, 64. 

OUR LATEST APPLICATION OF THIS PRINCIPLE WAS IN SHELTON V. TUCKER,
SUPRA, WHERE WE HELD THAT, WHILE A STATE HAS THE UNDOUBTED RIGHT TO
INQUIRE INTO THE FITNESS AND COMPETENCY OF ITS TEACHERS, A DETAILED
DISCLOSURE OF EVERY CONCEIVABLE KIND OF ASSOCIATIONAL TIE A TEACHER HAS
HAD PROBED INTO RELATIONSHIPS THAT "COULD HAVE NO POSSIBLE BEARING UPON
THE TEACHER'S OCCUPATIONAL COMPETENCE OR FITNESS."  ID., 488. 

AT ONE EXTREME IS CRIMINAL CONDUCT WHICH CANNOT HAVE SHELTER IN THE
FIRST AMENDMENT.  AT THE OTHER EXTREME ARE REGULATORY MEASURES WHICH,
NO MATTER HOW SOPHISTICATED, CANNOT BE EMPLOYED IN PURPOSE OR IN EFFECT
TO STIFLE, PENALIZE, OR CURB THE EXERCISE OF FIRST AMENDMENT RIGHTS. 
THESE LINES MARK THE AREA IN WHICH THE PRESENT CONTROVERSY LIES, AS THE
DISTRICT COURT RIGHTLY OBSERVED.  AFFIRMED. 

FN1  SEE ALSO STATE V. N.A.A.C.P., 90 SO. 2D 884. 

FN2  LA. REV. STAT., 1950, SEC. 14:385 (1958 SUPP.). 

FN3  LA. REV. STAT., 1950, SEC. 14:386 (1958 SUPP.). 

FN4  LA. REV. STAT., 1950, SECS. 12:401-409. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART CONCUR IN THE RESULT. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK JOINS, CONCURRING IN
THE JUDGMENT. 

ONE OF THE IMPORTANT CONSIDERATIONS THAT LED TO THE ENACTMENT OF THE
NORRIS-LAGUARDIA ACT, 47 STAT. 70, LIMITING THE JURISDICTION OF THE
DISTRICT COURTS TO GRANT INJUNCTIONS IN LABOR CONTROVERSIES, WAS THAT
SUCH INJUNCTIONS WERE GRANTED, USUALLY BY WAY OF TEMPORARY RELIEF, ON
THE BASIS OF AFFIDAVITS.  I AM OF THE VIEW THAT THE ISSUES THAT ARISE
IN CONTROVERSIES LIKE THE PRESENT ONE ARE LIKEWISE MORE SECURELY
ADJUDICATED UPON A FOUNDATION OF ORAL TESTIMONY RATHER THAN
AFFIDAVITS.  AT ALL EVENTS, I AM DUBIOUS ABOUT A FIXED RULE, SUCH AS
THAT WHICH IS APPARENTLY IN EFFECT IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA, BARRING ORAL TESTIMONY - SUBJECT TO THE
USUAL SAFEGUARDS OF CROSS-EXAMINATION - IN PROCEEDINGS FOR A TEMPORARY
INJUNCTION.  I ASSUME THAT ORAL TESTIMONY WILL BE AVAILABLE IN A
PROCEEDING TO MAKE THE TEMPORARY INJUNCTION PERMANENT. 

IN THIS UNDERSTANDING I CONCUR IN THE JUDGMENT OF THE COURT. 
..END :



COMMISSIONER OF INTERNAL REVENUE V. LESTER 366 U.S. 299 


NO. 376.  ARGUED APRIL 25, 1961 - DECIDED MAY 22, 1961 - 279 F.2D 354,
AFFIRMED. 


TO DEDUCT FROM HIS GROSS INCOME FOR INCOME TAX PURPOSES AMOUNTS
INCLUDIBLE UNDER SEC. 22(K) IN THE GROSS INCOME OF HIS DIVORCED WIFE,
AND SEC. 22(K) PROVIDES THAT PERIODIC PAYMENTS RECEIVED BY THE WIFE
AFTER A DECREE OF DIVORCE IN DISCHARGE OF A LEGAL OBLIGATION IMPOSED
UPON THE HUSBAND UNDER A WRITTEN INSTRUMENT INCIDENT TO SUCH DIVORCE
SHALL BE INCLUDIBLE IN THE GROSS INCOME OF THE WIFE, BUT THAT "THIS
SUBSECTION SHALL NOT APPLY TO THAT PART OF ANY PERIODIC PAYMENT WHICH
THE TERMS OF THE ...  WRITTEN INSTRUMENT FIX, IN TERMS OF  ...  A
PORTION OF THE PAYMENT, AS A SUM WHICH IS PAYABLE FOR THE SUPPORT OF
MINOR CHILDREN OF SUCH HUSBAND."  HELD:  IN ORDER TO COME WITHIN THIS
EXCEPTION TO SEC. 22(K), THE WRITTEN AGREEMENT PROVIDING FOR THE
PERIODIC PAYMENTS TO THE WIFE MUST SPECIFICALLY DESIGNATE THE AMOUNTS
OR PARTS THEREOF ALLOCABLE TO THE SUPPORT OF THE CHILDREN AND MUST NOT
LEAVE SUCH AMOUNTS TO DETERMINATION BY INFERENCE OR CONJECTURE.  PP.
299-306. 

COMMISSIONER OF INTERNAL REVENUE V. LESTER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION PRESENTED BY THIS SUIT, IN WHICH THE GOVERNMENT
SEEKS TO RECOVER PERSONAL INCOME TAX DEFICIENCIES, INVOLVES THE
VALIDITY OF RESPONDENT'S DEDUCTIONS FROM HIS GROSS INCOME FOR THE
TAXABLE YEARS 1951 AND 1952 OF THE WHOLE OF HIS PERIODIC PAYMENTS
DURING THOSE YEARS OF HIS DIVORCED WIFE PURSUANT TO A WRITTEN AGREEMENT
ENTERED INTO BY THEM AND APPROVED BY THE DIVORCE COURT.  THE
COMMISSIONER CLAIMS THAT LANGUAGE IN THIS AGREEMENT PROVIDING "IN THE
EVENT THAT ANY OF THE THREE CHILDREN OF THE PARTIES HERETO SHALL MARRY,
BECOME EMANCIPATED, OR DIE, THEN THE PAYMENTS HEREIN SPECIFIED SHALL
...  BE REDUCED IN A SUM EQUAL TO ONE-SIXTH OF THE PAYMENTS WHICH WOULD
THEREAFTER OTHERWISE ACCRUE" SUFFICIENTLY IDENTIFIES ONE-HALF OF THE
PERIODIC PAYMENTS AS HAVING BEEN "PAYABLE FOR THE SUPPORT" OF THE
TAXPAYER'S MINOR CHILDREN UNDER SEC. 22(K) OF THE INTERNAL REVENUE CODE
OF 1939 AND, THEREFORE, NOT DEDUCTIBLE BY HIM UNDER SEC. 23(U) OF THE
CODE.  (FN1)  THE TAX COURT APPROVED THE COMMISSIONER'S DISALLOWANCE,
32 T.C. 1156, BUT THE COURT OF APPEALS REVERSED, 279 F.2D 354, HOLDING
THAT THE AGREEMENT DID NOT "FIX" WITH REQUISITE CLARITY ANY SPECIFIC
AMOUNT OR PORTION OF THE PERIODIC PAYMENTS AS PAYABLE FOR THE SUPPORT
OF THE CHILDREN AND THAT ALL SUMS PAID TO THE WIFE UNDER THE AGREEMENT
WERE, THEREFORE, DEDUCTIBLE FROM RESPONDENT'S GROSS INCOME UNDER THE
ALIMONY PROVISION OF SEC. 23(U).  TO RESOLVE A CONFLICT AMONG THE
COURTS OF APPEALS ON THE QUESTION, (FN2) WE GRANTED CERTIORARI.  364
U.S. 890.  WE HAVE CONCLUDED THAT THE CONGRESS INTENDED THAT, TO COME
WITHIN THE EXCEPTION PORTION OF SEC. 22(K), THE AGREEMENT PROVIDING FOR
THE PERIODIC PAYMENTS MUST SPECIFICALLY STATE THE AMOUNTS OR PARTS
THEREOF ALLOCABLE TO THE SUPPORT OF THE CHILDREN.  ACCORDINGLY, WE
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

PRIOR TO 1942, A TAXPAYER WAS GENERALLY NOT ENTITLED TO DEDUCT FROM
GROSS INCOME AMOUNTS PAYABLE TO A FORMER SPOUSE AS ALIMONY, DOUGLAS V.
WILLCUTS, 296 U.S. 1 (1935), EXCEPT IN SITUATIONS IN WHICH THE DIVORCE
DECREE, THE SETTLEMENT AGREEMENT AND STATE LAW OPERATED AS A COMPLETE
DISCHARGE OF THE LIABILITY FOR SUPPORT.  HELVERING V. FITCH, 309 U.S.
149 (1940).  THE HEARINGS, SENATE DEBATES AND THE REPORT OF THE WAYS
AND MEANS COMMITTEE OF THE HOUSE ALL INDICATE THAT IT WAS THE INTENTION
OF CONGRESS, IN ENACTING SEC. 22(K) AND SEC. 23(U) OF THE CODE, TO
ELIMINATE THE UNCERTAIN AND INCONSISTENT TAX CONSEQUENCES RESULTING
FROM THE MANY VARIATIONS IN STATE LAW.  "THE AMENDMENTS ARE DESIGNED TO
REMOVE THE UNCERTAINTY AS TO THE TAX CONSEQUENCES OF PAYMENTS MADE TO A
DIVORCED SPOUSE ...  ."  S. REP. NO. 673, PT. 1, 77TH CONG., 1ST SESS.
32.  THEY "WILL PRODUCE UNIFORMITY IN THE TREATMENT OF AMOUNTS PAID
...  REGARDLESS OF VARIANCE IN THE LAWS OF DIFFERENT STATES  ...  ." 
H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 72.  IN ADDITION, CONGRESS
REALIZED THAT THE "INCREASED SURTAX RATES (FN3) WOULD INTENSIFY" THE
HARDSHIP ON THE HUSBAND WHO, IN MANY CASES, "WOULD NOT HAVE SUFFICIENT
INCOME LEFT AFTER PAYING ALIMONY TO MEET HIS INCOME TAX OBLIGATIONS,"
H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 46, AND PERHAPS ALSO THAT, ON
THE OTHER HAND, THE WIFE, GENERALLY BEING IN A LOWER INCOME TAX BRACKET
THAN THE HUSBAND, COULD MORE EASILY PROTECT HERSELF IN THE AGREEMENT
AND IN THE FINAL ANALYSIS RECEIVE A LARGER NET PAYMENT FROM THE HUSBAND
IF HE COULD DEDUCT THE GROSS PAYMENT FROM HIS INCOME. 

THE FIRST VERSION OF SEC. 22(K) WAS PROPOSED BY THE SENATE AS AN
AMENDMENT TO THE REVENUE ACT OF 1941.  THE SUMS GOING TO CHILD SUPPORT
WERE TO BE INCLUDIBLE IN THE HUSBAND'S GROSS INCOME ONLY IF THE AMOUNT
THEREOF WAS "SPECIFICALLY DESIGNATED AS A SUM PAYABLE FOR THE SUPPORT
OF MINOR CHILDREN OF THE SPOUSES."  H.R. 5417, 77TH CONG., 1ST SESS.,
SEC. 117.  THE PROPOSED AMENDMENT THUS DREW A DISTINCTION BETWEEN A
CASE IN WHICH THE AMOUNT FOR CHILD SUPPORT WAS "SPECIFICALLY
DESIGNATED" IN THE AGREEMENT, AND ONE IN WHICH THERE WAS NO SUCH
DESIGNATION.  IN THE LATTER EVENT, "THE WHOLE OF SUCH AMOUNTS ARE
INCLUDIBLE IN THE INCOME OF THE WIFE  ...  ."  S. REP. NO. 673, PT. 1,
77TH CONG., 1ST SESS. 35.  ACTION ON THE BILL WAS DEFERRED BY THE
CONFERENCE COMMITTEE (FN4) AND HEARINGS ON THE MEASURE WERE AGAIN HELD
THE FOLLOWING YEAR.  THE SUBSEQUENT REPORT OF THE SENATE FINANCE
COMMITTEE ON SEC. 22(K) CARRIED FORWARD THE TERM "SPECIFICALLY
DESIGNATED," USED IN THE 1941 REPORT (NO. 673), WITH THIS OBSERVATION: 

"IF, HOWEVER, THE PERIODIC PAYMENTS  ...  ARE RECEIVED BY THE WIFE
FOR THE SUPPORT AND MAINTENANCE OF HERSELF AND OF MINOR CHILDREN OF THE
HUSBAND WITHOUT SUCH SPECIFIC DESIGNATION OF THE PORTION FOR THE
SUPPORT OF SUCH CHILDREN, THEN THE WHOLE OF SUCH AMOUNTS IS INCLUDIBLE
IN THE INCOME OF THE WIFE AS PROVIDED IN SECTION 22(K)  ...  ."  S.
REP. NO. 1631, 77TH CONG., 2D SESS. 86. 

AS FINALLY ENACTED IN 1942, THE CONGRESS USED THE WORD "FIX" INSTEAD
OF THE TERM "SPECIFICALLY DESIGNATED," BUT THE CHANGE WAS EXPLAINED IN
THE SENATE HEARINGS AS "A LITTLE MORE STREAMLINED LANGUAGE."  HEARINGS
BEFORE SENATE COMMITTEE ON FINANCE ON H.R. 7378, 77TH CONG., 2D SESS.
48.  AS THE OFFICE OF THE LEGISLATIVE COUNSEL REPORTED TO THE SENATE
COMMITTEE: 

"IF AN AMOUNT IS SPECIFIED IN THE DECREE OF DIVORCE ATTRIBUTABLE TO
THE SUPPORT OF MINOR CHILDREN, THAT AMOUNT IS NOT INCOME OF THE WIFE
...  .  IF, HOWEVER, THAT AMOUNT PAID THE WIFE INCLUDES THE SUPPORT OF
CHILDREN, BUT NO AMOUNT IS SPECIFIED FOR THE SUPPORT OF THE CHILDREN,
THE ENTIRE AMOUNT GOES INTO THE INCOME OF THE WIFE  ...  ."  IBID. 

THIS LANGUAGE LEAVES NO ROOM FOR DOUBT.  THE AGREEMENT MUST EXPRESSLY
SPECIFY OR "FIX" A SUM CERTAIN OR PERCENTAGE OF THE PAYMENT FOR CHILD
SUPPORT BEFORE ANY OF THE PAYMENT IS EXCLUDED FROM THE WIFE'S INCOME. 
THE STATUTORY REQUIREMENT IS STRICT AND CAREFULLY WORDED.  IT DOES NOT
SAY THAT "A SUFFICIENTLY CLEAR PURPOSE" ON THE PART OF THE PARTIES IS
SUFFICIENT TO SHIFT THE TAX.  IT SAYS THAT THE "WRITTEN INSTRUMENT"
MUST "FIX" THAT "PORTION OF THE PAYMENT" WHICH IS TO GO TO THE SUPPORT
OF THE CHILDREN.  OTHERWISE, THE WIFE MUST PAY THE TAX ON THE WHOLE
PAYMENT.  WE ARE OBLIGED TO ENFORCE THIS MANDATE OF THE CONGRESS. 

ONE OF THE BASIC PRECEPTS OF THE INCOME TAX LAW IS THAT "THE INCOME
THAT IS SUBJECT TO A MAN'S UNFETTERED COMMAND AND THAT HE IS FREE TO
ENJOY AT HIS OWN OPTION MAY BE TAXED TO HIM AS HIS INCOME, WHETHER HE
SEES FIT TO ENJOY IT OR NOT."  CORLISS V. BOWERS, 281 U.S. 376, 378
(1930).  UNDER THE TYPE OF AGREEMENT HERE, THE WIFE IS FREE TO SPEND
THE MONIES PAID UNDER THE AGREEMENT AS SHE SEES FIT.  "THE POWER TO
DISPOSE OF INCOME IS THE EQUIVALENT OF OWNERSHIP OF IT."  HELVERING V.
HORST, 311 U.S. 112, 118 (1940).  INCLUDING THE ENTIRE PAYMENTS IN THE
WIFE'S GROSS INCOME UNDER SUCH CIRCUMSTANCES, THEREFORE, COMPORTS WITH
THE UNDERLYING PHILOSOPHY OF THE CODE.  AND, AS WE HAVE FREQUENTLY
STATED, THE CODE MUST BE GIVEN "AS GREAT AN INTERNAL SYMMETRY AND
CONSISTENCY AS ITS WORDS PERMIT."  UNITED STATES V. OLYMPIC RADIO &
TELEVISION, 349 U.S. 232, 236 (1955). 

IT DOES NOT APPEAR THAT THE CONGRESS WAS CONCERNED WITH THE PERHAPS
RESTRICTED USES OF UNSPECIFIED CHILD-SUPPORT PAYMENTS PERMITTED THE
WIFE BY STATE LAW WHEN IT MADE THOSE SUMS INCLUDIBLE WITHIN THE WIFE'S
ALIMONY INCOME.  ITS CONCERN WAS WITH A REVENUE MEASURE AND WITH THE
SPECIFICITY, FOR INCOME TAX PURPOSES, OF THE AMOUNT PAYABLE UNDER THE
TERMS OF THE WRITTEN AGREEMENT FOR SUPPORT OF THE CHILDREN.  THEREFORE,
IN CONSTRUING THAT REVENUE ACT, WE TOO ARE UNCONCERNED WITH THE VARIANT
LEGAL OBLIGATIONS, IF ANY, WHICH SUCH AN AGREEMENT, BY CONSTRUCTION OF
ITS NONSPECIFIC PROVISIONS UNDER LOCAL RULES, IMPOSES UPON THE WIFE TO
USE A CERTAIN PORTION OF THE PAYMENTS SOLELY FOR THE SUPPORT OF THE
CHILDREN.  THE CODE MERELY AFFORDS THE HUSBAND A DEDUCTION FOR ANY
PORTION OF SUCH PAYMENT NOT SPECIFICALLY EARMARKED IN THE AGREEMENT AS
PAYABLE FOR THE SUPPORT OF THE CHILDREN. 

AS WE READ SEC. 22(K), THE CONGRESS WAS IN EFFECT GIVING THE HUSBAND
AND WIFE THE POWER TO SHIFT A PORTION OF THE TAX BURDEN FROM THE WIFE
TO THE HUSBAND BY THE USE OF A SIMPLE PROVISION IN THE SETTLEMENT
AGREEMENT WHICH FIXED THE SPECIFIC PORTION OF THE PERIODIC PAYMENT MADE
TO THE WIFE AS PAYABLE FOR THE SUPPORT OF THE CHILDREN.  HERE THE
AGREEMENT DOES NOT SO SPECIFICALLY PROVIDE.  ON THE CONTRARY, IT CALLS
MERELY FOR THE PAYMENT OF CERTAIN MONIES TO THE WIFE FOR THE SUPPORT OF
HERSELF AND THE CHILDREN.  THE COMMISSIONER MAKES MUCH OF THE FACT THAT
THE AGREEMENT PROVIDES THAT AS, IF, AND WHEN ANY ONE OF THE CHILDREN
MARRIED, BECAME EMANCIPATED OR DIED THE TOTAL PAYMENT WOULD BE REDUCED
BY ONE-SIXTH, SAYING THAT THIS PROVISION DID "FIX" ONE-HALF (ONE-SIXTH
MULTIPLIED BY THREE, THE NUMBER OF CHILDREN) OF THE TOTAL PAYMENT AS
PAYABLE FOR THE SUPPORT OF THE CHILDREN.  HOWEVER, THE AGREEMENT ALSO
PRETERMITTED THE ENTIRE PAYMENT IN THE EVENT OF THE WIFE'S REMARRIAGE
AND IT IS AS CONSISTENT TO SAY THAT THIS PROVISION HAD JUST THE
OPPOSITE EFFECT.  IT WAS JUST SUCH UNCERTAINTY IN TAX CONSEQUENCES THAT
THE CONGRESS INTENDED TO AND, WE BELIEVE, DID ELIMINATE WHEN IT SAID
THAT THE CHILD-SUPPORT PAYMENTS SHOULD BE "SPECIFICALLY DESIGNATED" OR,
AS THE SECTION FINALLY DIRECTED, "FIXED."  IT DOES NOT SAY THAT "A
SUFFICIENTLY CLEAR PURPOSE" ON THE PART OF THE PARTIES WOULD SATISFY. 
IT SAYS THAT THE WRITTEN INSTRUMENT MUST "FIX" THAT AMOUNT OR "PORTION
OF THE PAYMENT" WHICH IS TO GO TO THE SUPPORT OF THE CHILDREN. 

THE COMMISSIONER CONTENDS THAT ADMINISTRATIVE INTERPRETATION HAS BEEN
CONSISTENTLY TO THE CONTRARY.  IT APPEARS, HOWEVER, THAT THERE WAS SUCH
A CONTRARIETY OF OPINION AMONG THE COURTS OF APPEALS THAT THE
COMMISSIONER WAS OBLIGED AS LATE AS 1959 TO ISSUE A REVENUE RULING
WHICH STATED THAT THE SERVICE WOULD FOLLOW THE RATIONALE OF EISINGER V.
COMMISSIONER, 250 F.2D 303 (C.A. 9TH CIR. 1957), (FN5) BUT THAT WEIL V.
COMMISSIONER, 240 F.2D 584 (C.A.2D CIR. 1957), (FN6) WOULD BE FOLLOWED
"IN CASES INVOLVING SIMILAR FACTS AND CIRCUMSTANCES."  REV. RUL. 59-93,
1959-1 CUM. BULL.  22, 23. 

ALL OF THESE CONSIDERATIONS LEAD TO THE CONCLUSION THAT IF THERE IS
TO BE CERTAINTY IN THE TAX CONSEQUENCES OF SUCH AGREEMENTS THE
ALLOCATIONS TO CHILD SUPPORT MADE THEREIN MUST BE "SPECIFICALLY
DESIGNATED" AND NOT LEFT TO DETERMINATION BY INFERENCE OR CONJECTURE. 
WE BELIEVE THAT THE CONGRESS HAS SO DEMANDED IN SEC. 22(K).  AFTER ALL,
THE PARTIES MAY FOR TAX PURPOSES ACT AS THEIR BEST INTERESTS DICTATE,
PROVIDED, AS THAT SECTION REQUIRES, THEIR ACTION BE CLEAR AND
SPECIFIC.  CERTAINLY THE CONGRESS HAS REQUIRED NO MORE AND EXPECTS NO
LESS.  AFFIRMED. 

FN1  SECTION 22(K) OF THE INTERNAL REVENUE CODE OF 1939, 56 STAT. 816
817, PROVIDED IN PART THAT: 

"  ...  PERIODIC PAYMENTS  ...  RECEIVED BY THE WIFE SUBSEQUENT TO A
DECREE OF DIVORCE  ...  IN DISCHARGE OF  ...  A LEGAL OBLIGATION WHICH,
BECAUSE OF THE MARITAL OR FAMILY RELATIONSHIP, IS IMPOSED UPON OR
INCURRED BY SUCH HUSBAND UNDER  ...  A WRITTEN INSTRUMENT INCIDENT TO
SUCH DIVORCE ...  SHALL BE INCLUDIBLE IN THE GROSS INCOME OF SUCH WIFE
...  .  THIS SUBSECTION SHALL NOT APPLY TO THAT PART OF ANY SUCH
PERIODIC PAYMENT WHICH THE TERMS OF THE  ...  WRITTEN INSTRUMENT FIX,
IN TERMS OF  ...  A PORTION OF THE PAYMENT, AS A SUM WHICH IS PAYABLE
FOR THE SUPPORT OF MINOR CHILDREN OF SUCH HUSBAND." 

SHALL BE ALLOWED AS A DEDUCTION: 

"IN THE CASE OF A HUSBAND DESCRIBED IN SECTION 22(K), AMOUNTS
INCLUDIBLE UNDER SECTION 22(K) IN THE GROSS INCOME OF HIS WIFE, PAYMENT
OF WHICH IS MADE WITHIN THE HUSBAND'S TAXABLE YEAR." 

FN2  BOTH METCALF V. COMMISSIONER, 271 F.2D 288 (C.A. 1ST CIR. 1959),
AND EISINGER V. COMMISSIONER 250 F.2D 303 (C.A. 9TH CIR. 1957), HAVE
ARRIVED AT CONCLUSIONS CONTRARY TO THOSE OF THE COURT BELOW. 

FN3  SECTIONS 22(K) AND 23(U) WERE ENACTED AS PART OF THE REVENUE ACT
OF 1942 WHICH PROVIDED FOR GREATLY INCREASED TAX REVENUE TO MEET THE
EXPENSES OF WORLD WAR II. 

FN4  H.R. REP. NO. 1203, 77TH CONG., 1ST SESS. 11. 

FN5  THE COURT THERE APPROVED THE RULE THAT "WHEN THE SETTLEMENT
AGREEMENT, READ AS A WHOLE, DISCLOSES THAT THE PARTIES HAVE EARMARKED
OR DESIGNATED  ...  THE PAYMENTS TO BE MADE, ONE PART TO BE PAYABLE FOR
ALIMONY, AND ANOTHER PART TO BE PAYABLE FOR THE SUPPORT OF CHILDREN,
WITH SUFFICIENT CERTAINTY AND SPECIFICITY TO READILY DETERMINE WHICH IS
WHICH, WITHOUT REFERENCE TO CONTINGENCIES WHICH MAY NEVER COME INTO
BEING, THEN THE 'PART OF ANY PERIODIC PAYMENT' HAS BEEN FIXED 'BY THE
TERMS OF THE DECREE OR WRITTEN INSTRUMENT'  ...  ."  250 F.2D, AT 308. 

FN6  IN THAT CASE THE AGREEMENT PROVIDED FOR REDUCTIONS ONLY IN THE
EVENT THE DIVORCED WIFE REMARRIED.  THE COURT STATED THAT "THE
FORTUITOUS OR INCIDENTAL MENTION OF A FIGURE IN A PROVISION MEANT TO BE
INOPERATIVE, UNLESS SOME MORE OR LESS PROBABLE FUTURE EVENT OCCURS,
WILL NOT SUFFICE TO SHIFT THE TAX BURDEN FROM THE WIFE TO THE
HUSBAND."  240 F.2D, AT 588.    MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I ADD A FEW WORDS.  IN AN
EARLY INCOME TAX CASE, MR. JUSTICE HOLMES SAID "MEN MUST TURN SQUARE
CORNERS WHEN THEY DEAL WITH THE GOVERNMENT."  ROCK ISLAND, A.&L.R. CO.
V. UNITED STATES, 254 U.S. 141, 143.  THE REVENUE LAWS HAVE BECOME SO
COMPLICATED AND INTRICATE THAT I THINK THE GOVERNMENT IN MOVING AGAINST
THE CITIZEN SHOULD ALSO TURN SQUARE CORNERS.   THE ACT, 1939 I.R.C.
SEC. 22(K), MAKES TAXABLE TO THE HUSBAND THAT PART OF ALIMONY PAYMENTS
"WHICH THE TERMS OF THE DECREE OR WRITTEN INSTRUMENT FIX, IN TERMS OF
AN AMOUNT OF MONEY OR A PORTION OF THE PAYMENT, AS A SUM" PAYABLE FOR
SUPPORT OF MINOR CHILDREN.    I AGREE WITH THE COURT THAT THIS
AGREEMENT DID NOT "FIX" ANY SUCH AMOUNT.  TO BE SURE, AN AMOUNT PAYABLE
IN SUPPORT OF MINOR CHILDREN MAY BE INFERRED FROM THE PROVISO THAT ONE
SIXTH OF THE PAYMENT SHALL NO LONGER BE DUE, IF THE CHILDREN MARRY,
BECOME EMANCIPATED, OR DIE.  BUT CONGRESS IN ENACTING THIS LAW REALIZED
THAT SOME PORTION OF ALIMONY TAXABLE TO THE WIFE MIGHT BE USED FOR
SUPPORT OF THE CHILDREN, AS THE OPINION OF THE COURT MAKES CLEAR. 

THE PRESENT AGREEMENT MAKES NO SPECIFIC DESIGNATION OF THE PORTION
THAT IS INTENDED FOR THE SUPPORT OF THE CHILDREN.  IT IS NOT ENOUGH TO
SAY THAT THE SUM CAN BE COMPUTED.  CONGRESS DREW A CLEAR LINE WHEN IT
USED THE WORD "FIX."  RESORT TO LITIGATION, RATHER THAN TO CONGRESS,
FOR A CHANGE IN THE LAW IS TOO OFTEN THE TEMPTATION OF GOVERNMENT WHICH
HAS A LONGER PURSE AND MORE ENDURANCE THAN ANY TAXPAYER. 
..END :




MONTANA V. KENNEDY 366 U.S. 308 


NO. 198.  ARGUED MARCH 22, 1961 - DECIDED MAY 22, 1961 - 278 F.2D 68,
AFFIRMED. 


PETITIONER'S MOTHER IS A NATIVE-BORN CITIZEN OF THE UNITED STATES AND
HIS FATHER IS AN ITALIAN CITIZEN WHO HAS NEVER BEEN NATURALIZED.  THEY
WERE MARRIED IN THE UNITED STATES, AND THEIR MARITAL RELATIONSHIP HAS
NEVER BEEN TERMINATED.  PETITIONER WAS BORN IN ITALY IN 1906, WHILE HIS
PARENTS WERE RESIDING THERE TEMPORARILY, AND HIS MOTHER BROUGHT HIM TO
THE UNITED STATES LATER IN THE SAME YEAR.  HE HAS SINCE RESIDED
CONTINUOUSLY IN THE UNITED STATES AND HAS NEVER BEEN NATURALIZED. 
HELD:  PETITIONER IS NOT A CITIZEN OF THE UNITED STATES.  PP. 309-315. 

(A) R.S. SEC. 2172, GRANTING INHERITED CITIZENSHIP TO CHILDREN BORN
ABROAD OF PARENTS WHO "NOW ARE, OR HAVE BEEN," CITIZENS, APPLIES ONLY
TO CHILDREN WHOSE PARENTS WERE CITIZENS ON OR BEFORE APRIL 14, 1802,
WHEN ITS PREDECESSOR BECAME EFFECTIVE.  WHEN PETITIONER WAS BORN IN
1906, R.S. SEC. 1993 PROVIDED THE SOLE SOURCE OF INHERITED CITIZENSHIP
FOR FOREIGN-BORN CHILDREN, AND IT APPLIED ONLY TO CHILDREN WHOSE
FATHERS WERE CITIZENS.  PP. 309-312. 

(B)  SECTION 5 OF THE ACT OF MARCH 2, 1907, WHICH PROVIDED THAT "A
CHILD BORN WITHOUT THE UNITED STATES OF ALIEN PARENTS SHALL BE DEEMED A
CITIZEN OF THE UNITED STATES BY VIRTUE OF ...  RESUMPTION OF AMERICAN
CITIZENSHIP BY THE PARENT," IS NOT APPLICABLE TO PETITIONER, SINCE MERE
MARRIAGE TO AN ALIEN, WITHOUT CHANGE OF DOMICILE, DID NOT TERMINATE THE
CITIZENSHIP OF AN AMERICAN WOMAN EITHER AT THE TIME OF PETITIONER'S
BIRTH OR AT THE TIME OF HIS MOTHER'S RETURN TO THE UNITED STATES, BOTH
OF WHICH OCCURRED IN 1906.  PP. 312-314. 

(C)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE TESTIMONY OF
PETITIONER'S MOTHER THAT SHE HAD BEEN PREVENTED FROM RETURNING TO THE
UNITED STATES PRIOR TO PETITIONER'S BIRTH BY THE WRONGFUL REFUSAL OF AN
AMERICAN CONSULAR OFFICER TO ISSUE HER A PASSPORT BECAUSE OF HER
PREGNANT CONDITION.  PP. 314-315. 

MONTANA V. KENNEDY, ATTORNEY GENERAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

HAVING BEEN ORDERED DEPORTED AS AN ALIEN ON GROUNDS WHICH ARE NOT
CONTESTED, PETITIONER, CLAIMING TO BE A CITIZEN, BROUGHT THE PRESENT
DECLARATORY JUDGMENT ACTION UNDER 8 U.S.C.  SEC. 1503 TO DETERMINE HIS
CITIZENSHIP STATUS. 

PETITIONER, WHOSE MOTHER IS A NATIVE-BORN UNITED STATES CITIZEN AND
WHOSE FATHER IS A CITIZEN OF ITALY (THEIR MARRIAGE HAVING BEEN IN THE
UNITED STATES), WAS BORN IN ITALY IN 1906 WHILE HIS PARENTS WERE
TEMPORARILY RESIDING THERE, AND ENTERED THE UNITED STATES WITH HIS
MOTHER LATER THE SAME YEAR.  HE HAS CONTINUOUSLY RESIDED IN THE UNITED
STATES SINCE THAT TIME AND HAS NEVER BEEN NATURALIZED.  HIS CLAIM OF
UNITED STATES CITIZENSHIP IS BASED PRIMARILY UPON TWO STATUTES:  (1)
5 OF AN ACT OF 1907.  (FN2)  THE COURT OF APPEALS FOUND THAT NEITHER
STATUTE OBTAINED AS TO ONE IN THE CIRCUMSTANCES OF THIS PETITIONER, 278
F.2D 68.  WE GRANTED CERTIORARI TO REVIEW THAT CONCLUSION, 364 U.S.
861, IN VIEW OF THE APPARENT HARSHNESS OF THE RESULT ENTAILED.  FOR
REASONS GIVEN HEREAFTER, WE AGREE WITH THE COURT OF APPEALS. 

                       I. 

IN 1874 CONGRESS RE-ENACTED TWO STATUTES WHICH SEEM TO DEFY COMPLETE
RECONCILIATION.  R.S. SEC. 2172, A RE-ENACTMENT OF SEC. 4 OF AN ACT OF
APRIL 14, 1802 (2 STAT. 155), PROVIDED THAT: 

"CHILDREN OF PERSONS WHO NOW ARE, OR HAVE BEEN, CITIZENS OF THE
UNITED STATES, SHALL, THOUGH BORN OUT OF THE LIMITS AND JURISDICTION OF
THE UNITED STATES, BE CONSIDERED AS CITIZENS THEREOF  ...  ." 

R.S. SEC. 1993, SUBSTANTIALLY A RE-ENACTMENT OF SEC. 1 OF AN ACT OF
FEBRUARY 10, 1855 (10 STAT. 604), PROVIDED THAT: 

"ALL CHILDREN HERETOFORE BORN OR HEREAFTER BORN OUT OF THE LIMITS AND
JURISDICTION OF THE UNITED STATES, WHOSE FATHERS WERE OR MAY BE AT THE
TIME OF THEIR BIRTH CITIZENS THEREOF, ARE DECLARED TO BE CITIZENS OF
THE UNITED STATES; BUT THE RIGHTS OF CITIZENSHIP SHALL NOT DESCEND TO
CHILDREN WHOSE FATHERS NEVER RESIDED IN THE UNITED STATES." 

SINCE R.S. SEC. 2172 SPOKE BROADLY OF CHILDREN OF CITIZEN "PERSONS" -
PERHAPS CITIZEN MOTHERS AS WELL AS CITIZEN FATHERS - WHILE R.S. SEC.
1993 SPOKE ONLY OF CHILDREN OF CITIZEN "FATHERS" (AND EVEN THEN
EMBRACED ONLY CITIZEN FATHERS WHO HAD BEEN UNITED STATES RESIDENTS),
THERE IS A CONFLICT IN THE APPARENT REACH OF THE SIMULTANEOUSLY RE
ENACTED PROVISIONS. 

IN THIS CIRCUMSTANCE PETITIONER, CLAIMING THAT "PERSONS" IN R.S. SEC.
2172 INCLUDED, IN THE DISJUNCTIVE, BOTH CITIZEN FATHERS AND MOTHERS,
CONTENDS THAT WE ARE FACED WITH DECIDING EITHER THAT R.S. SEC. 1993
SIMPLY REPEATS, WITH MODIFICATIONS, THAT PART OF R.S. SEC. 2172
RELATING TO "FATHERS," (LEAVING ITS PROVISIONS RELATING TO "MOTHERS"
INTACT), OR THAT IT REPEALS THAT PART OF R.S. SEC. 2172 RELATING TO
"MOTHERS."  HE SUGGESTS THAT WE MAKE THE FORMER CHOICE TO AVOID THE
ADMITTED SEVERITY OF DEPORTING A FIFTY-FIVE-YEAR-OLD MAN WHO HAS
RESIDED IN THIS COUNTRY SINCE HE WAS AN INFANT.  THE GOVERNMENT, ON THE
OTHER HAND, ASSERTS THAT R.S. SEC. 2172 SHOULD BE READ AS EMBRACING
ONLY CHILDREN BOTH OF WHOSE PARENTS WERE AMERICAN CITIZENS.  WHATEVER
THE FORCE OF THESE OPPOSING CONTENTIONS MAY BE, OTHER CONSIDERATIONS
UNMISTAKABLY LEAD TO THE CONCLUSION THAT PETITIONER'S CLAIM TO
CITIZENSHIP UNDER R.S. SEC. 2172 MUST BE REJECTED. 

IN 1854 HORACE BINNEY, ONE OF THE COUNTRY'S LEADING LAWYERS AND A
RECOGNIZED AUTHORITY ON THE IMMIGRATION LAWS, PUBLISHED AN ARTICLE
ENTITLED "THE ALIENIGENAE OF THE UNITED STATES" (FN3) IN WHICH HE
ARGUED THAT THE WORDS "WHO NOW ARE, OR HAVE BEEN" IN THE 1802
PREDECESSOR OF R.S. SEC. 2172 HAD THE EFFECT OF GRANTING CITIZENSHIP TO
THE FOREIGN-BORN CHILDREN ONLY OF PERSONS WHO WERE CITIZENS OF THE
UNITED STATES ON OR BEFORE THE EFFECTIVE DATE OF THE 1802 STATUTE
(APRIL 14, 1802), IN OTHER WORDS THAT THE STATUTE HAD NO PROSPECTIVE
APPLICATION.  FOREIGN-BORN CHILDREN OF PERSONS WHO BECAME AMERICAN
CITIZENS BETWEEN APRIL 14, 1802 AND 1854, WERE ALIENS, MR. BINNEY
ARGUED.  IN 1855 CONGRESS RESPONDED TO THE SITUATION BY ENACTING THE
PREDECESSOR (10 STAT. 604) OF R.S. SEC. 1993.  (FN4)  THE PROVISION HAD
RETROACTIVE AS WELL AS PROSPECTIVE EFFECT, BUT WAS CLEARLY INTENDED TO
APPLY ONLY TO CHILDREN OF CITIZEN FATHERS.  (FN5) 

THE VIEW OF MR. BINNEY AND THE 1855 CONGRESS THAT THE ACT OF 1802 HAD
NO APPLICATION TO THE CHILDREN OF PERSONS WHO WERE NOT CITIZENS IN 1802
HAS FOUND ACCEPTANCE IN THE DECISIONS OF THIS COURT.  SEE UNITED STATES
V. WONG KIM ARK, 169 U.S. 649, 673-674; WEEDIN V. CHIN BOW, 274 U.S.
657, 663-664; SEE ALSO MOCK GUM YING V. CAHILL, 81 F.2D 940.  THE
COMMENTATORS HAVE AGREED.  SEE 2 KENT, COMMENTARIES, AT 53; 3
HACKWORTH, DIGEST OF INTERNATIONAL LAW, SEC. 222; CF. MATTER OF OWEN,
36 OP. ATTY. GEN. 197, 200.  FINALLY CONGRESS HAS REPEATEDLY STATED AND
ACTED UPON THAT PREMISE.  SEE, E.G., H.R. REP. NO. 1110, 67TH CONG., 2D
SESS., AT P. 3.  INDEED WHEN, IN 1934, CONGRESS FINALLY GRANTED
CITIZENSHIP RIGHTS TO THE FOREIGN-BORN CHILDREN OF CITIZEN MOTHERS, 48
STAT. 797, IT NOT ONLY SPECIFICALLY MADE THE PROVISION PROSPECTIVE, BUT
FURTHER MADE CLEAR ITS VIEW THAT THIS WAS A REVERSAL OF PRIOR LAW.  SEE
H.R. REP. NO. 131, 73D CONG., 1ST SESS., P. 2, AND S. REP. NO. 865, 73D
CONG., 2D SESS., P. 1. 

WHATEVER MAY HAVE BEEN THE REASON FOR THE 1874 RE-ENACTMENT OF THE
ACT OF 1802, AS R.S.  SEC. 2172, WE FIND NOTHING IN THAT ACTION WHICH
SUGGESTS A PURPOSE TO REVERSE THE STRUCTURE OF INHERITED CITIZENSHIP
THAT CONGRESS CREATED IN 1855 AND RECOGNIZED AND REAFFIRMED UNTIL
1934.  ON THIS BASIS AND IN THE LIGHT OF OUR PRECEDENTS, WE HOLD THAT
AT THE TIME OF PETITIONER'S BIRTH IN 1906, R.S. SEC. 1993 PROVIDED THE
SOLE SOURCE OF INHERITED CITIZENSHIP STATUS FOR FOREIGN-BORN CHILDREN
OF AMERICAN PARENTS.  THAT STATUTE CANNOT AVAIL THIS PETITIONER, WHO IS
THE FOREIGN-BORN CHILD OF AN ALIEN FATHER. 

                                              II. 

PETITIONER'S SECOND GROUND FOR CLAIMING CITIZENSHIP IS FOUNDED UPON
SEC. 5 OF AN ACT OF MARCH 2, 1907 (34 STAT. 1229), WHICH PROVIDED IN
RELEVANT PART "THAT A CHILD BORN WITHOUT THE UNITED STATES OF ALIEN
PARENTS SHALL BE DEEMED A CITIZEN OF THE UNITED STATES BY VIRTUE OF
...  RESUMPTION OF AMERICAN CITIZENSHIP BY THE PARENT  ...  ."  (FN6)
PETITIONER'S CLAIM IN THIS REGARD NECESSARILY DEPENDS UPON OUR FINDING
(1) THAT HIS MOTHER WAS AN ALIEN AT THE TIME OF HIS BIRTH, HAVING LOST
HER CITIZENSHIP EITHER WHEN SHE MARRIED AN ALIEN OR WHEN SHE TRAVELED
ABROAD WITH HER ALIEN HUSBAND IN 1906, AND (2) THAT HIS MOTHER RESUMED
HER CITIZENSHIP ON HER RETURN TO THE UNITED STATES. 

IT IS SUFFICIENT TO DISPOSE OF THE CONTENTION THAT WE FIND THAT MERE
MARRIAGE TO AN ALIEN, WITHOUT CHANGE OF DOMICILE, DID NOT TERMINATE THE
CITIZENSHIP OF AN AMERICAN WOMAN EITHER AT THE TIME OF PETITIONER'S
BIRTH OR HIS MOTHER'S RETURN TO THE UNITED STATES, BOTH OF WHICH
OCCURRED IN 1906.  (FN7)  THIS VIEW, WHICH IS SUPPORTED BY THE WEIGHT
OF AUTHORITY, (FN8) IS INDEED NOT CONTESTED BY PETITIONER, WHO INSTEAD
ASKS THIS COURT TO CONSTRUE SEC. 5 OF THE 1907 ACT SO AS TO AVOID THE
OBVIOUS PARADOX OF GIVING PREFERRED TREATMENT TO THE CHILDREN OF A
WOMAN WHO HAS LOST HER CITIZENSHIP OVER THAT AFFORDED TO THE CHILDREN
OF A WOMAN WHO HAS NEVER LOST HER CITIZENSHIP.  (FN9)  PARADOXICAL
THOUGH THIS MAY BE, WE HAVE NO POWER TO "CONSTRUE" AWAY THE UNAMBIGUOUS
STATUTORY REQUIREMENT OF SEC. 5 THAT PETITIONER'S MOTHER MUST HAVE LOST
HER CITIZENSHIP AT THE TIME OF HIS BIRTH.  (FN10)

                                     III. 

PETITIONER MAKES A FURTHER CONTENTION.  IT IS URGED THAT THE
GOVERNMENT SHOULD NOT BE HEARD TO SAY THAT PETITIONER WAS BORN OUTSIDE
THE UNITED STATES BECAUSE OF ITS OWN MISCONDUCT.  PETITIONER'S MOTHER
TESTIFIED THAT SHE HAD BEEN PREVENTED FROM LEAVING ITALY PRIOR TO
PETITIONER'S BIRTH BY THE REFUSAL OF AN AMERICAN CONSULAR OFFICER TO
ISSUE HER A PASSPORT BECAUSE OF HER PREGNANT CONDITION.  HOWEVER, IT IS
UNCONTESTED THAT THE UNITED STATES DID NOT REQUIRE A PASSPORT FOR A
CITIZEN TO RETURN TO THE COUNTRY IN 1906.  MOREOVER, PETITIONER HAS
PRESENTED NO EVIDENCE OF ANY ITALIAN REQUIREMENT OF AN AMERICAN
PASSPORT TO LEAVE ITALY AT THAT TIME.  IN THIS LIGHT THE TESTIMONY BY
PETITIONER'S MOTHER AS TO WHAT MAY HAVE BEEN ONLY THE CONSULAR
OFFICIAL'S WELL-MEANT ADVICE - "I AM SORRY, MRS., YOU CANNOT RETURN TO
THE UNITED STATES IN THAT CONDITION" - FALLS FAR SHORT OF MISCONDUCT
SUCH AS MIGHT PREVENT THE UNITED STATES FROM RELYING ON PETITIONER'S
FOREIGN BIRTH.  IN THIS SITUATION, WE NEED NOT STOP TO INQUIRE WHETHER,
AS SOME LOWER COURTS HAVE HELD, THERE MAY BE CIRCUMSTANCES IN WHICH THE
UNITED STATES IS ESTOPPED TO DENY CITIZENSHIP BECAUSE OF THE CONDUCT OF
ITS OFFICIALS.  (FN11)  AFFIRMED. 

FN1  SEE P. 310, INFRA. 

FN2  SEE PP. 312-313, INFRA. 

FN3  2 AMERICAN LAW REGISTER 193. 

FN4  THAT THE ENACTING CONGRESS ACCEPTED AND ACTED UPON THE VIEW THAT
THE ACT OF 1802 (LATER RE-ENACTED AS R.S. SEC. 2172) HAD NO EFFECT AS
TO PARENTS WHO BECAME CITIZENS AFTER 1802 IS CLEAR FROM THE FOLLOWING
STATEMENT OF CONGRESSMAN CUTTING: 

"  ...  THE CHILDREN OF A MAN U.S. CITIZEN WHO HAPPENED TO BE IN THE
WORLD ON THE 14TH OF APRIL, 1802, BORN ABROAD, ARE AMERICAN CITIZENS,
WHILE THE CHILDREN OF PERSONS BORN ON THE 15TH OF APRIL, 1802, ARE
ALIENS TO THE COUNTRY."  CONG. GLOBE, 33D CONG., 1ST SESS.  170
(1854). 

FN5  CONGRESSMAN CUTTING EXPLAINED: 

"IN THE REIGN OF VICTORIA, IN THE YEAR 1844, THE ENGLISH PARLIAMENT
PROVIDED THAT THE CHILDREN OF ENGLISH MOTHERS, THOUGH MARRIED TO
FOREIGNERS, SHOULD HAVE THE RIGHTS AND PRIVILEGES OF ENGLISH SUBJECTS,
THOUGH BORN OUT OF ALLEGIANCE.  I HAVE NOT, IN THIS BILL, GONE TO THAT
EXTENT, AS THE HOUSE WILL HAVE OBSERVED FROM THE READING OF IT."  CONG.
GLOBE, 33D CONG., 1ST SESS. 170. 

FN6  IN THE CONTEXT OF THE SECTION IT IS CLEAR THAT THE WORD "PARENT"
REFERS BOTH TO FATHERS AND MOTHERS.  SECTION 2 OF THE ACT OF MAY 24,
1934 (48 STAT. 797), ON WHICH PETITIONER ALTERNATIVELY RELIES, IS IN
ALL RESPECTS HERE MATERIAL A RE-ENACTMENT OF THE ABOVE PROVISION. 

FN7  BY SEC. 3 OF THE ACT OF MARCH 2, 1907 (34 STAT. 1228), MARRIAGE
TO AN ALIEN DID TERMINATE THE CITIZENSHIP OF AN AMERICAN WOMAN. 

FN8  SEE, E.G., COMITIS V. PARKERSON, 56 F. 556, 559-560 (C.C.E.D.
LA.), WRIT OF ERROR DISMISSED SUB NOM. COMITIZ V. PARKERSON, 163 U.S.
681; RUCKGABER V. MOORE, 104 F. 947, 948-949 (C.C.E.D.N.Y.), AFFIRMED,
114 F. 1020 (C.A.2D CIR.); WALLENBURG V. MISSOURI PACIFIC R. CO., 159
F. 217, 219 (C.C.D. NEB.); IN RE FITZROY, 4 F.2D 541, 542 (D.C.D.
MASS.); IN RE LYNCH, 31 F.2D 762 (D.C.S.D. CAL.); PETITION OF ZOGBAUM,
32 F.2D 911, 912-913 (D.C.D.S.D.); IN RE WRIGHT, 19 F. SUPP. 224, 225
(D.C.E.D. PA.); WATKINS V. MORGENTHAU, 56 F. SUPP. 529, 530-531
(D.C.E.D. PA.). 

FN9  SUCH A CONSTRUCTION WAS ESPOUSED BY ATTORNEY GENERAL WILLIAM D.
MITCHELL IN 1933, 37 OP. ATTY. GEN. 90, AND IS ALSO INDICATED IN TWO
DISTRICT COURT CASES.  SEE PETITION OF BLACK, 64 F. SUPP. 518; PETITION
OF DONSKY, 77 F. SUPP. 832.  BUT SEE D'ALESSIO V. LEHMAN, 183 F. SUPP.
345, WHICH TAKES A CONTRARY VIEW. 

FN10  MOREOVER, EVEN IF PETITIONER'S MOTHER HAD SUFFERED A LOSS OF
CITIZENSHIP WHICH WAS LATER REACQUIRED, PETITIONER'S CASE WOULD STILL
NOT COME WITHIN THE STATUTORY DEFINITION OF "RESUMPTION OF AMERICAN
CITIZENSHIP."  CONGRESS GAVE EXPLICIT CONTENT TO THIS REQUIREMENT OF
SEC. 5 OF THE ACT OF 1907, SEC. 3 OF THE SAME ACT PROVIDING: 

"AT THE TERMINATION OF THE MARITAL RELATION SHE MAY RESUME HER
AMERICAN CITIZENSHIP  ...  ."  34 STAT. 1228.  PETITIONER'S MOTHER HAS
NEVER TERMINATED HER MARITAL RELATION WITH PETITIONER'S ALIEN FATHER. 

FN11  SEE, E.G., PODEA V. ACHESON, 179 F.2D 306; LEE YOU FEE V.
DULLES, 236 F.2D 885, 887. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :














UNITED STATES V. E.I. DU PONT DE NEMOURS & CO. 366 U.S. 316 


NO. 55.  ARGUED FEBRUARY 20-21, 1961 - DECIDED MAY 22, 1961 - 177 F.
SUPP. 1, AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER
PROCEEDINGS. 


IN THIS CIVIL ANTITRUST PROCEEDING, THIS COURT HELD THAT ACQUISITION
BY THE DU PONT COMPANY OF 23% OF THE COMMON STOCK OF GENERAL MOTORS
CORPORATION HAD LED TO THE INSULATION FROM FREE COMPETITION OF MOST OF
THE GENERAL MOTORS MARKET IN AUTOMOBILE FINISHES AND FABRICS AND TENDED
TO CREATE A MONOPLY OF A LINE OF COMMERCE, IN VIOLATION OF SEC. 7 OF
THE CLAYTON ACT.  THEREFORE, THIS COURT REVERSED THE DISTRICT COURT'S
JUDGMENT DISMISSING THE COMPLAINT AND REMANDED THE CASE TO THAT COURT
FOR A DETERMINATION OF THE EQUITABLE RELIEF NECESSARY AND APPROPRIATE
IN THE PUBLIC INTEREST.  353 U.S. 586.  AFTER THE TAKING OF FURTHER
EVIDENCE, PERTAINING MOSTLY TO THE TAX AND MARKET CONSEQUENCES TO THE
SHAREHOLDERS OF THE TWO COMPANIES, THE DISTRICT COURT DECLINED TO
REQUIRE DU PONT TO DIVEST ITSELF COMPLETELY OF THE GENERAL MOTORS
STOCK, AS URGED BY THE GOVERNMENT, AND SOUGHT TO SATISFY THE
REQUIREMENTS OF THIS COURT'S MANDATE BY REQUIRING DU PONT TO TRANSFER
ITS VOTING RIGHTS IN MOST OF THE GENERAL MOTORS STOCK TO CERTAIN OF DU
PONT'S SHAREHOLDERS, BY ENJOINING THE TWO COMPANIES FROM HAVING ANY
PREFERENTIAL OR DISCRIMINATORY TRADE RELATIONS WITH EACH OTHER AND BY
VARIOUS OTHER INJUNCTIVE PROVISIONS DESIGNED TO PREVENT DU PONT FROM
EXERCISING ANY CONTROL OVER THE MANAGEMENT OF GENERAL MOTORS.  HELD:
THIS REMEDY IS NOT ADEQUATE, AND THE DISTRICT COURT IS DIRECTED TO
PROCEED EXPEDITIOUSLY TO ENTER A DECREE REQUIRING DU PONT TO DIVEST
ITSELF COMPLETELY OF THE GENERAL MOTORS STOCK WITHIN NOT TO EXCEED 10
YEARS FROM THE EFFECTIVE DATE OF THE DECREE.  PP. 318-335. 

(A)  WHEN A VIOLATION OF THE ANTITRUST LAWS HAS BEEN PROVED, THE
INITIAL RESPONSIBILITY TO FASHION AN APPROPRIATE REMEDY LIES WITH THE
DISTRICT COURT, AND THIS COURT ACCORDS DUE REGARD AND RESPECT TO THE
CONCLUSION OF THE DISTRICT COURT; BUT THIS COURT HAS A DUTY TO BE SURE
THAT A DECREE IS FASHIONED WHICH WILL EFFECTIVELY REDRESS THE
VIOLATIONS OF THE ANTITRUST LAWS.  PP. 322-325. 

(B)  SINCE THE DECREE IN THIS CASE WAS FASHIONED BY THE DISTRICT
COURT IN OBEDIENCE TO THE JUDGMENT SENT TO IT BY THIS COURT AFTER
REVERSAL OF THE DISTRICT COURT'S JUDGMENT DISMISSING THE GOVERNMENT'S
COMPLAINT, THIS COURT HAS PLENARY POWER TO DETERMINE WHETHER ITS OWN
JUDGMENT WAS SCRUPULOUSLY AND FULLY CARRIED OUT.  PP. 325-326. 

(C)  IN CIVIL PROCEEDINGS, COURTS ARE NOT AUTHORIZED TO PUNISH
ANTITRUST VIOLATORS, AND RELIEF MUST NOT BE PUNITIVE; BUT COURTS ARE
REQUIRED TO DECREE RELIEF EFFECTIVE TO REDRESS THE VIOLATIONS AND
RESTORE COMPETITION, WHATEVER THE ADVERSE EFFECT OF SUCH A DECREE ON
PRIVATE INTERESTS.  PP. 326-328. 

(D)  IN THIS CASE, THE PROPOSED PARTIAL DIVESTITURE THROUGH THE
TRANSFER OF VOTING RIGHTS WOULD NOT BE AN EFFECTIVE REMEDY; AND,
NOTWITHSTANDING THE ADVERSE TAX AND MARKET CONSEQUENCES WHICH THE
DISTRICT COURT FOUND WOULD RESULT, THE GOVERNMENT IS ENTITLED TO A
DECREE DIRECTING COMPLETE DIVESTITURE - A REMEDY PECULIARLY APPROPRIATE
IN CASES OF STOCK ACQUISITIONS WHICH VIOLATE SEC. 7 OF THE CLAYTON
ACT.  PP. 326-333. 

(E)  THE ALTERNATIVE, SUGGESTED BELATEDLY BY DU PONT, THAT ITS
GENERAL MOTORS STOCK BE DISENFRANCHISED, WOULD NOT PROVIDE EFFECTIVE
RELIEF, AND IT MIGHT HAVE UNDESIRABLE EFFECTS ON THE CAPITAL STRUCTURE,
MANAGEMENT AND CONTROL OF GENERAL MOTORS.  P. 333. 

(F)  THE INJUNCTIVE PROVISIONS OF THE DISTRICT COURT'S DECREE WOULD
NOT ADEQUATELY REMOVE THE OBJECTIONS TO THE EFFECTIVENESS OF ITS MAIN
PROVISION FOR THE TRANSFER OF VOTING RIGHTS, AND THE PUBLIC IS ENTITLED
TO THE SURER, CLEANER REMEDY OF COMPLETE DIVESTITURE.  PP. 333-334. 

(G)  ONCE THE GOVERNMENT HAS SUCCESSFULLY BORNE THE CONSIDERABLE
BURDEN OF ESTABLISHING A VIOLATION OF THE ANTITRUST LAWS, ALL DOUBTS AS
TO THE REMEDY ARE TO BE RESOLVED IN ITS FAVOR.  P. 334. 

(H)  THE DISTRICT COURT'S DECREE IS VACATED IN ITS ENTIRETY, EXCEPT
AS TO THE PROVISIONS ENJOINING DU PONT ITSELF FROM EXERCISING VOTING
RIGHTS IN RESPECT OF ITS GENERAL MOTORS STOCK.  PP. 334-334. 

(I)  IN ORDER THAT THIS PROTRACTED LITIGATION MAY BE CONCLUDED AS
SOON AS POSSIBLE, THE DISTRICT COURT IS DIRECTED TO PROCEED
EXPEDITIOUSLY TO FORMULATE AND ENTER A DECREE PROVIDING FOR THE
COMPLETE DIVESTITURE BY DU PONT OF ITS GENERAL MOTORS STOCK, TO
COMMENCE WITHIN 90 DAYS, AND TO BE COMPLETED WITHIN NOT TO EXCEED 10
YEARS, OF THE EFFECTIVE DATE OF THE DECREE.  P. 335. 

UNITED STATES V. E. I. DU PONT DE NEMOURS & CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES FILED THIS ACTION IN 1949 IN THE DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS.  THE COMPLAINT ALLEGED THAT THE
OWNERSHIP AND USE BY APPELLEE E.I. DU PONT DE NEMOURS & CO. OF
APPROXIMATELY 23 PERCENT OF THE VOTING COMMON STOCK OF APPELLEE GENERAL
MOTORS CORPORATION WAS A VIOLATION OF SECTIONS 1 AND 2 OF THE SHERMAN
ACT, 15 U.S.C. SECS. 1, 2, AND OF SECTION 7 OF THE CLAYTON ACT, 15
U.S.C. SEC. 18.  AFTER THE TRIAL, THE DISTRICT COURT DISMISSED THE
COMPLAINT.  126 F. SUPP. 235 (D.C.N.D. ILL. 1954).  ON THE GOVERNMENT'S
APPEAL, WE REVERSED.  WE HELD THAT DU PONT'S ACQUISITION OF THE 23
PERCENT OF GENERAL MOTORS STOCK HAD LED TO THE INSULATION FROM FREE
COMPETITION OF MOST OF THE GENERAL MOTORS MARKET IN AUTOMOBILE FINISHES
AND FABRICS, WITH THE RESULTANT LIKELIHOOD, AT THE TIME OF SUIT, OF THE
CREATION OF A MONOPOLY OF A LINE OF COMMERCE, AND, ACCORDINGLY, THAT DU
PONT HAD VIOLATED SEC. 7 OF THE CLAYTON ACT.  UNITED STATES V. E.I. DU
PONT DE NEMOURS & CO., 353 U.S. 586 (1957).  (FN1)  WE DID NOT,
HOWEVER, DETERMINE WHAT EQUITABLE RELIEF WAS NECESSARY IN THE PUBLIC
INTEREST.  INSTEAD, WE OBSERVED THAT "THE DISTRICT COURTS  ...  ARE
CLOTHED 'WITH LARGE DISCRETION TO MODEL THEIR JUDGMENTS TO FIT THE
EXIGENCIES OF THE PARTICULAR CASE.'  INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392, 400-401," AND REMANDED THE CAUSE TO THE DISTRICT
COURT "FOR A DETERMINATION, AFTER FURTHER HEARING, OF THE EQUITABLE
RELIEF NECESSARY AND APPROPRIATE IN THE PUBLIC INTEREST TO ELIMINATE
THE EFFECTS OF THE ACQUISITION OFFENSIVE TO THE STATUTE."  353 U.S., AT
607-608. 

ON REMAND, THE DISTRICT COURT INVITED THE GOVERNMENT TO SUBMIT A PLAN
OF RELIEF WHICH IN ITS OPINION WOULD BE EFFECTIVE TO REMEDY THE
VIOLATION.  THE COURT ALSO APPOINTED TO AMICI CURIAE TO REPRESENT THE
INTERESTS OF GENERAL MOTORS AND DU PONT SHAREHOLDERS, RESPECTIVELY,
MOST OF WHOM, OF COURSE, HAD NOT BEEN MADE PARTIES TO THIS LITIGATION. 
THE GOVERNMENT SUBMITTED A PROPOSED PLAN OF RELIEF.  THAT PLAN INCLUDED
DIVERSE FORMS OF INJUNCTIVE RELIEF, BUT ITS PRINCIPAL FEATURE WAS A
REQUIREMENT THAT WITHIN 10 YEARS THE DU PONT COMPANY COMPLETELY DIVEST
ITSELF OF ITS APPROXIMATELY 63 MILLION GENERAL MOTORS SHARES.  THE
GOVERNMENT PROPOSED THAT ABOUT TWO-THIRDS OF THESE SHARES BE
DISTRIBUTED PRO RATA TO THE GENERALITY OF DU PONT SHAREHOLDERS IN THE
FORM OF DIVIDENDS OVER THE 10-YEAR PERIOD.  THE OTHER ONE-THIRD OF DU
PONT'S GENERAL MOTORS HOLDINGS - STOCK WHICH WOULD HAVE GONE TO
APPELLEES CHRISTIANA SECURITIES COMPANY AND DELAWARE REALTY AND
INVESTMENT COMPANY, HOLDING COMPANIES LONG IDENTIFIED WITH THE DU PONT
FAMILY ITSELF - WERE TO GO TO A COURT-APPOINTED TRUSTEE, TO BE SOLD
GRADUALLY OVER THE SAME 10-YEAR PERIOD.  DU PONT OBJECTED THAT THE
GOVERNMENT'S PLAN OF COMPLETE DIVESTITURE ENTAILED HARSH INCOME-TAX
CONSEQUENCES FOR DU PONT STOCKHOLDERS AND, IF ADOPTED, WOULD ALSO
THREATEN SERIOUSLY TO DEPRESS THE MARKET VALUE OF DU PONT AND GENERAL
MOTORS STOCK.  DU PONT THEREFORE PROPOSED ITS OWN PLAN DESIGNED TO
AVOID THESE RESULTS.  THE SALIENT FEATURE OF ITS PLAN WAS SUBSTITUTION
FOR THE GOVERNMENT'S PROPOSED COMPLETE DIVESTITURE OF A PLAN FOR
PARTIAL DIVESTITURE IN THE FORM OF A SO-CALLED "PASS THROUGH" OF VOTING
RIGHTS, WHEREBY DU PONT WOULD RETAIN ALL ATTRIBUTES OF OWNERSHIP OF THE
GENERAL MOTORS STOCK, INCLUDING THE RIGHT TO RECEIVE DIVIDENDS AND A
SHARE OF ASSETS ON LIQUIDATION, EXCEPT THE RIGHT TO VOTE.  THE VOTE WAS
TO BE "PASSED THROUGH" TO DU PONT'S SHAREHOLDERS PROPORTIONALLY TO
THEIR HOLDINGS OF DU PONT'S OWN SHARES, EXCEPT THAT CHRISTIANA AND
DELAWARE WOULD "PASS THROUGH" THE VOTES ALLOCABLE TO THEM TO THEIR OWN
SHAREHOLDERS.  THE AMICI CURIAE ALSO PROPOSED PLANS OF COMPLIANCE,
SUBSTANTIALLY EQUIVALENT TO THE DU PONT PLAN.  THE AMICUS REPRESENTING
THE GENERALITY OF DU PONT SHAREHOLDERS PROPOSED IN ADDITION A PROGRAM
OF SO-CALLED "TAKE-DOWNS," BY WHICH DU PONT SHAREHOLDERS WOULD BE
ALLOWED TO EXCHANGE THEIR DU PONT COMMON STOCK FOR A NEW CLASS OF DU
PONT "SPECIAL COMMON," PLUS THEIR PRO RATA SHARE OF DU PONT-HELD
GENERAL MOTORS COMMON STOCK. 

THE DISTRICT COURT HELD SEVERAL WEEKS OF HEARINGS.  THE EVIDENCE
TAKEN AT THE HEARINGS, LARGELY OF EXPERT WITNESSES, FILLS SOME 3,000
PAGES IN THE RECORD BEFORE US, AND, TOGETHER WITH THE NUMEROUS
FINANCIAL CHARTS AND TABLES RECEIVED AS EXHIBITS, BEARS MAINLY NOT ON
THE COMPETITION-RESTORING EFFECT OF THE SEVERAL PROPOSALS, BUT RATHER
ON WHICH PROPOSAL WOULD HAVE THE MORE, AND WHICH THE LESS, SERIOUS TAX
AND MARKET CONSEQUENCES FOR THE OWNERS OF THE DU PONT AND GENERAL
MOTORS STOCK.  THE DISTRICT COURT CONCLUDED THAT ALTHOUGH "  ...  THERE
IS NO NEED FOR THE COURT TO RESOLVE THE CONFLICT IN THE EVIDENCE AS TO
HOW SEVERE THOSE CONSEQUENCES WOULD BE, THE COURT IS PERSUADED BEYOND
ANY DOUBT THAT A JUDGMENT OF THE KIND PROPOSED BY THE GOVERNMENT WOULD
HAVE VERY SERIOUS ADVERSE CONSEQUENCES."  177 F. SUPP. 1, 42 (D.C.N.D.
ILL. 1959).  THE COURT FOR THIS REASON REJECTED THE GOVERNMENT'S PLAN
AND ADOPTED THE DU PONT PROPOSAL, WITH SOME SIGNIFICANT MODIFICATIONS. 
THE "PASS THROUGH" OF VOTING RIGHTS, FOR EXAMPLE, WAS SO LIMITED THAT
NEITHER CHRISTIANA, DELAWARE, NOR THEIR OFFICERS AND DIRECTORS (PLUS
RESIDENT MEMBERS OF THE LATTER'S FAMILIES), SHOULD BE ABLE TO VOTE ANY
OF THE DU PONT-HELD GENERAL MOTORS STOCK; GENERAL MOTORS SHARES
ALLOCABLE TO THE TWO COMPANIES OR TO THEIR OFFICERS AND DIRECTORS, OR
TO THE OFFICERS AND DIRECTORS OF DU PONT, OR TO RESIDENT MEMBERS OF THE
FAMILIES OF THE OFFICERS AND DIRECTORS OF THE SEVERAL COMPANIES, WERE
TO BE STERILIZED, VOTED BY NO ONE.  DU PONT, CHRISTIANA, AND DELAWARE
WERE FORBIDDEN TO ACQUIRE ANY ADDITIONAL GENERAL MOTORS STOCK.  DU PONT
AND GENERAL MOTORS MIGHT NOT HAVE ANY PREFERENTIAL OR DISCRIMINATORY
TRADE RELATIONS OR CONTRACTS WITH EACH OTHER.  NO OFFICER OR DIRECTOR
OF DU PONT, CHRISTIANA, OR DELAWARE MIGHT ALSO SERVE AS AN OFFICER OR
DIRECTOR OF GENERAL MOTORS.  NOR MIGHT DU PONT, CHRISTIANA, OR DELAWARE
NOMINATE OR PROPOSE ANY PERSON TO BE A GENERAL MOTORS OFFICER OR
DIRECTOR, OR SEEK IN ANY WAY TO INFLUENCE THE CHOICE OF PERSONS TO FILL
THOSE POSTS.  THE GOVERNMENT OBJECTED THAT WITHOUT A PROVISION ORDERING
COMPLETE DIVESTITURE THE DECREE, ALTHOUGH OTHERWISE SATISFACTORY, WAS
INADEQUATE TO REDRESS THE ANTITRUST VIOLATION, AND FILED ITS APPEAL
HERE UNDER SEC. 2 OF THE EXPEDITING ACT, 15 U.S.C. SEC. 29.  WE NOTED
PROBABLE JURISDICTION.  362 U.S. 986 (1960). 

A THRESHOLD QUESTION - AND ONE WHICH, ALTHOUGH SUBSIDIARY, IS MOST
IMPORTANT - CONCERNS THE SCOPE OF OUR REVIEW OF THE DISTRICT COURT'S
DISCHARGE OF THE DUTY DELEGATED BY OUR JUDGMENT TO FORMULATE A DECREE. 
IN OUR FORMER OPINION WE ALLUDED TO THE "LARGE DISCRETION" OF THE
DISTRICT COURTS IN MATTERS OF REMEDY IN ANTITRUST CASES.  MANY OPINIONS
OF THE COURT IN SUCH CASES OBSERVE THAT "THE FORMULATION OF DECREES IS
LARGELY LEFT TO THE DISCRETION OF THE TRIAL COURT  ...  ," MARYLAND &
VIRGINIA MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458, 473
(1960); "IN FRAMING RELIEF IN ANTITRUST CASES, A RANGE OF DISCRETION
RESTS WITH THE TRIAL JUDGE," BESSER MFG. CO. V. UNITED STATES, 343 U.S.
444, 449 (1952); "THE DETERMINATION OF THE SCOPE OF THE DECREE TO
ACCOMPLISH ITS PURPOSE IS PECULIARLY THE RESPONSIBILITY OF THE TRIAL
COURT," UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 89
(1950); "THE FRAMING OF DECREES SHOULD TAKE PLACE IN THE DISTRICT
RATHER THAN IN APPELLATE COURTS," INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392, 400 (1947).  THE COURT HAS ON OCCASION SAID THAT
DECREES WILL BE UPHELD IN THE ABSENCE OF A SHOWING OF AN ABUSE OF
DISCRETION.  SEE, E.G., MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V.
UNITED STATES, SUPRA, P. 473; UNITED STATES V. W.T. GRANT CO., 345 U.S.
629, 634 (1953); TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S.
593 (1951); (FN2) UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319, 334
335 (1947); UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 185
(1944).  (FN3)  THESE EXPRESSIONS ARE NOT, HOWEVER, TO BE UNDERSTOOD TO
IMPLY A NARROW REVIEW HERE OF THE REMEDIES FASHIONED BY THE DISTRICT
COURTS IN ANTITRUST CASES.  ON THE CONTRARY, OUR PRACTICE, PARTICULARLY
IN CASES OF A DIRECT APPEAL FROM THE DECREE OF A SINGLE JUDGE, IS TO
EXAMINE THE DISTRICT COURT'S ACTION CLOSELY TO SATISFY OURSELVES THAT
THE RELIEF IS EFFECTIVE TO REDRESS THE ANTITRUST VIOLATION PROVED. 
"THE RELIEF GRANTED BY A TRIAL COURT IN AN ANTITRUST CASE AND BROUGHT
HERE ON DIRECT APPEAL, THUS BY-PASSING THE USUAL APPELLATE REVIEW, HAS
ALWAYS HAD THE MOST CAREFUL SCRUTINY OF THIS COURT.  THOUGH THE RECORDS
ARE USUALLY MOST VOLUMINOUS AND THEIR REVIEW EXCEEDINGLY BURDENSOME, WE
HAVE PAINSTAKINGLY UNDERTAKEN IT TO MAKE CERTAIN THAT JUSTICE HAS BEEN
DONE."  INTERNATIONAL BOXING CLUB V. UNITED STATES, 358 U.S. 242, 253
(1959); SEE ALSO ID., AT 263 (DISSENTING OPINION).  WE HAVE MADE IT
CLEAR THAT A DECREE FORMULATED BY A DISTRICT COURT IS NOT "SUBJECT ONLY
TO REVERSAL FOR GROSS ABUSE.  RATHER WE HAVE FELT AN OBLIGATION TO
INTERVENE IN THIS MOST SIGNIFICANT PHASE OF THE CASE WHEN WE CONCLUDED
THERE WERE INAPPROPRIATE PROVISIONS IN THE DECREE."  UNITED STATES V.
UNITED STATES GYPSUM CO., SUPRA, P. 89.   IN SUM, WE ASSIGN TO THE
DISTRICT COURTS THE RESPONSIBILITY INITIALLY TO FASHION THE REMEDY, BUT
RECOGNIZE THAT WHILE WE ACCORD DUE REGARD AND RESPECT TO THE CONCLUSION
OF THE DISTRICT COURT, WE HAVE A DUTY OURSELVES TO BE SURE THAT A
DECREE IS FASHIONED WHICH WILL EFFECTIVELY REDRESS PROVED VIOLATIONS OF
THE ANTITRUST LAWS.  THE PROPER DISPOSITION OF ANTITRUST CASES IS
OBVIOUSLY OF GREAT PUBLIC IMPORTANCE, AND THEIR REMEDIAL PHASE, MORE
OFTEN THAN NOT, IS CRUCIAL.  FOR THE SUIT HAS BEEN A FUTILE EXERCISE IF
THE GOVERNMENT PROVES A VIOLATION BUT FAILS TO SECURE A REMEDY ADEQUATE
TO REDRESS IT.  "A PUBLIC INTEREST SERVED BY SUCH CIVIL SUITS IS THAT
THEY EFFECTIVELY PRY OPEN TO COMPETITION A MARKET THAT HAS BEEN CLOSED
BY DEFENDANTS' ILLEGAL RESTRAINTS.  IF THIS DECREE ACCOMPLISHES LESS
THAN THAT, THE GOVERNMENT HAS WON A LAWSUIT AND LOST A CAUSE." 
INTERNATIONAL SALT CO. V. UNITED STATES, SUPRA, P. 401. 

OUR PRACTICE REFLECTS THE SITUATION CREATED BY THE CONGRESSIONAL
AUTHORIZATION, UNDER SEC. 2 OF THE EXPEDITING ACT, (FN4) OF A DIRECT
APPEAL TO THIS COURT FROM THE JUDGMENT OF RELIEF FASHIONED BY A SINGLE
JUDGE.  CONGRESS HAS DELIBERATELY TAKEN AWAY THE SHIELD OF INTERMEDIATE
APPELLATE REVIEW BY A COURT OF APPEALS, AND LEFT WITH US ALONE THE
RESPONSIBILITY OF AFFORDING THE PARTIES A REVIEW OF HIS DETERMINATION. 
(FN5)  THIS CIRCUMSTANCE IMPOSES A SPECIAL BURDEN UPON US, FOR, AS MR.
JUSTICE ROBERTS SAID FOR THE COURT, "  ...  IT IS UNTHINKABLE THAT
CONGRESS HAS ENTRUSTED THE ENFORCEMENT OF A STATUTE OF SUCH FAR
REACHING IMPORTANCE TO THE JUDGMENT OF A SINGLE JUDGE, WITHOUT REVIEW
OF THE RELIEF GRANTED OR DENIED BY HIM," HARTFORD-EMPIRE CO. V. UNITED
STATES, 324 U.S. 570, 571 (1945), CLARIFYING 323 U.S. 386 (1945). 

THESE PRINCIPLES ALONE WOULD REQUIRE OUR CLOSE EXAMINATION OF THE
DISTRICT COURT'S ACTION.  BUT THE NECESSITY FOR THAT EXAMINATION IN
THIS CASE FURTHER APPEARS IN THE LIGHT OF ADDITIONAL CONSIDERATIONS. 
FIRST OF ALL, THE DECREE WAS FASHIONED IN OBEDIENCE TO THE JUDGMENT
WHICH WE SENT DOWN TO THE DISTRICT COURT AFTER OUR REVERSAL OF THAT
COURT'S DISMISSAL OF THE GOVERNMENT'S COMPLAINT.  WE HAVE PLENARY POWER
TO DETERMINE WHETHER OUR JUDGMENT WAS SCRUPULOUSLY AND FULLY CARRIED
OUT.  CHIEF JUSTICE TAFT, SPEAKING FOR THE COURT, SAID IN CONTINENTAL
INS. CO. V. UNITED STATES, 259 U.S. 156, 166 (1922), "WE DELEGATED TO
THE DISTRICT COURT THE DUTY OF FORMULATING A DECREE IN COMPLIANCE WITH
THE PRINCIPLES ANNOUNCED IN OUR JUDGMENT OF REVERSAL, AND THAT GIVES US
PLENARY POWER WHERE THE COMPLIANCE HAS BEEN ATTEMPTED AND THE DECREE IN
ANY PROPER WAY IS BROUGHT TO OUR ATTENTION TO SEE THAT IT FOLLOWS OUR
OPINION."  (FN6)  SECONDLY, THE RECORD IS CONCERNED MAINLY WITH THE
ALLEGED ADVERSE TAX AND MARKET EFFECTS OF THE GOVERNMENT'S PROPOSAL FOR
COMPLETE DIVESTITURE.  BUT THE PRIMARY FOCUS OF INQUIRY, AS WE SHALL
SHOW, IS UPON THE QUESTION OF THE RELIEF REQUIRED EFFECTIVELY TO
ELIMINATE THE TENDENCY OF THE ACQUISITION CONDEMNED BY SEC. 7.  FOR IT
WILL BE REMEMBERED THAT THE VIOLATION WAS NOT ACTUAL MONOPOLY BUT ONLY
A TENDENCY TOWARDS MONOPOLY.  THE REQUIRED RELIEF THEREFORE IS A REMEDY
WHICH REASONABLY ASSURES THE ELIMINATION OF THAT TENDENCY.  DOES
PARTIAL DIVESTITURE IN THE FORM OF THE "PASS THROUGH" OF VOTING POWER,
TOGETHER WITH THE ANCILLARY RELIEF, GIVE AN EFFECTIVE REMEDY OR IS
COMPLETE DIVESTITURE NECESSARY TO ASSURE EFFECTIVE RELIEF?  LITTLE IN
THE RECORD OR IN THE DISTRICT COURT'S OPINION IS CONCERNED WITH THAT
CRUCIAL QUESTION.  THE FINDINGS OF POSSIBLE HARSH CONSEQUENCES RELIED
UPON TO JUSTIFY REJECTION OF COMPLETE DIVESTITURE ARE THUS HARDLY OF
MATERIAL ASSISTANCE IN REACHING JUDGMENT ON THE CENTRAL ISSUE.  IF OUR
EXAMINATION PERSUADES US THAT THE REMEDY DECREED LEAVES THE PUBLIC
INTEREST IN THE ELIMINATION OF THE TENDENCY INADEQUATELY PROTECTED, WE
SHOULD BE DERELICT IN OUR DUTY IF WE DID NOT CORRECT THE ERROR. 
BEFORE WE EXAMINE THE ADEQUACY OF THE RELIEF ALLOWED BY THE DISTRICT
COURT, IT IS APPROPRIATE TO REVIEW SOME GENERAL CONSIDERATIONS
CONCERNING THAT MOST DRASTIC, BUT MOST EFFECTIVE, OF ANTITRUST REMEDIES
- DIVESTITURE.  THE KEY TO THE WHOLE QUESTION OF AN ANTITRUST REMEDY IS
OF COURSE THE DISCOVERY OF MEASURES EFFECTIVE TO RESTORE COMPETITION. 
COURTS ARE NOT AUTHORIZED IN CIVIL PROCEEDINGS TO PUNISH ANTITRUST
VIOLATORS, AND RELIEF MUST NOT BE PUNITIVE.  BUT COURTS ARE AUTHORIZED,
INDEED REQUIRED, TO DECREE RELIEF EFFECTIVE TO REDRESS THE VIOLATIONS,
WHATEVER THE ADVERSE EFFECT OF SUCH A DECREE ON PRIVATE INTERESTS. 
DIVESTITURE IS ITSELF AN EQUITABLE REMEDY DESIGNED TO PROTECT THE
PUBLIC INTEREST.  IN UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA,
WHERE WE SUSTAINED DIVESTITURE PROVISIONS AGAINST AN ATTACK SIMILAR TO
THAT SUCCESSFULLY MADE BELOW, WE SAID, AT P. 189:  "IT IS SAID THAT
THESE PROVISIONS ARE INEQUITABLE AND HARSH INCOME TAX WISE, THAT THEY
EXCEED ANY REASONABLE REQUIREMENT FOR THE PREVENTION OF FUTURE
VIOLATIONS, AND THAT THEY ARE THEREFORE PUNITIVE  ...  .  THOSE WHO
VIOLATE THE ACT MAY NOT REAP THE BENEFITS OF THEIR VIOLATIONS AND AVOID
AN UNDOING OF THEIR UNLAWFUL PROJECT ON THE PLEA OF HARDSHIP OR
INCONVENIENCE."  (FN7) 

IF THE COURT CONCLUDES THAT OTHER MEASURES WILL NOT BE EFFECTIVE TO
REDRESS A VIOLATION, AND THAT COMPLETE DIVESTITURE IS A NECESSARY
ELEMENT OF EFFECTIVE RELIEF, THE GOVERNMENT CANNOT BE DENIED THE LATTER
REMEDY BECAUSE ECONOMIC HARDSHIP, HOWEVER SEVERE, MAY RESULT.  ECONOMIC
HARDSHIP CAN INFLUENCE CHOICE ONLY AS AMONG TWO OR MORE EFFECTIVE
REMEDIES.  IF THE REMEDY CHOSEN IS NOT EFFECTIVE, IT WILL NOT BE SAVED
BECAUSE AN EFFECTIVE REMEDY WOULD ENTAIL HARSH CONSEQUENCES.  THIS
PROPOSITION IS NOT NOVEL; IT IS DEEPLY ROOTED IN ANTITRUST LAW AND HAS
NEVER BEEN SUCCESSFULLY CHALLENGED.  (FN8)  THE CRITERIA WERE ANNOUNCED
IN ONE OF THE EARLIEST CASES.  IN UNITED STATES V. AMERICAN TOBACCO
CO., 221 U.S. 106, 185 (1911), WE SAID: 

"IN CONSIDERING THE SUBJECT  ...  THREE DOMINANT INFLUENCES MUST
GUIDE OUR ACTION:  1.  THE DUTY OF GIVING COMPLETE AND EFFICACIOUS
EFFECT TO THE PROHIBITIONS OF THE STATUTE; 2, THE ACCOMPLISHING OF THIS
RESULT WITH AS LITTLE INJURY AS POSSIBLE TO THE INTEREST OF THE GENERAL
PUBLIC; AND, 3, A PROPER REGARD FOR THE VAST INTERESTS OF PRIVATE
PROPERTY WHICH MAY HAVE BECOME VESTED IN MANY PERSONS AS A RESULT OF
THE ACQUISITION EITHER BY WAY OF STOCK OWNERSHIP OR OTHERWISE OF
INTERESTS IN THE STOCK OR SECURITIES OF THE COMBINATION WITHOUT ANY
GUILTY KNOWLEDGE OR INTENT IN ANY WAY TO BECOME ACTORS OR PARTICIPANTS
IN THE WRONGS WHICH WE FIND TO HAVE INSPIRED AND DOMINATED THE
COMBINATION FROM THE BEGINNING." 

THE COURT CONCLUDED IN THAT CASE THAT, DESPITE THE ALLEGED HARDSHIP
WHICH WOULD BE INVOLVED, ONLY DISSOLUTION OF THE COMBINATION WOULD BE
EFFECTIVE, AND THEREFORE ORDERED DISSOLUTION.  PLAINLY, IF THE RELIEF
IS NOT EFFECTIVE, THERE IS NO OCCASION TO CONSIDER THE THIRD
CRITERION. 

THUS, IN THIS CASE, THE ADVERSE TAX AND MARKET CONSEQUENCES WHICH THE
DISTRICT COURT FOUND WOULD BE CONCOMITANTS OF COMPLETE DIVESTITURE
CANNOT SAVE THE REMEDY OF PARTIAL DIVESTITURE THROUGH THE "PASS
THROUGH" OF VOTING RIGHTS IF, THOUGH LESS HARSH, PARTIAL DIVESTITURE IS
NOT AN EFFECTIVE REMEDY.  WE DO NOT THINK THAT THE "PASS THROUGH" IS AN
EFFECTIVE REMEDY AND BELIEVE THAT THE GOVERNMENT IS ENTITLED TO A
DECREE DIRECTING COMPLETE DIVESTITURE. 

IT CANNOT BE GAINSAID THAT COMPLETE DIVESTITURE IS PECULIARLY
APPROPRIATE IN CASES OF STOCK ACQUISITIONS WHICH VIOLATE SEC. 7.  (FN9)
THAT STATUTE IS SPECIFIC AND "NARROWLY DIRECTED," (FN10) STANDARD OIL
CO. V. UNITED STATES, 337 U.S. 293, 312 (1949), AND IT OUTLAWS A
PARTICULAR FORM OF ECONOMIC CONTROL - STOCK ACQUISITIONS WHICH TEND TO
CREATE A MONOPOLY OF ANY LINE OF COMMERCE.  THE VERY WORDS OF SEC. 7
SUGGEST THAT AN UNDOING OF THE ACQUISITION IS A NATURAL REMEDY. 
DIVESTITURE OR DISSOLUTION HAS TRADITIONALLY BEEN THE REMEDY FOR
SHERMAN ACT VIOLATIONS WHOSE HEART IS INTERCORPORATE COMBINATION AND
CONTROL, (FN11) AND IT IS REASONABLE TO THINK IMMEDIATELY OF THE SAME
REMEDY WHEN SEC. 7 OF THE CLAYTON ACT, WHICH PARTICULARIZES THE SHERMAN
ACT STANDARD OF ILLEGALITY, IS INVOLVED.  OF THE VERY FEW LITIGATED
(FN12) SEC. 7 CASES WHICH HAVE BEEN REPORTED, MOST DECREED DIVESTITURE
AS A MATTER OF COURSE.  (FN13)  DIVESTITURE HAS BEEN CALLED THE MOST
IMPORTANT OF ANTITRUST REMEDIES.  (FN14)  IT IS SIMPLE, RELATIVELY EASY
TO ADMINISTER, AND SURE.  IT SHOULD ALWAYS BE IN THE FOREFRONT OF A
COURT'S MIND WHEN A VIOLATION OF SEC. 7 HAS BEEN FOUND. 

THE DIVESTITURE ONLY OF VOTING RIGHTS DOES NOT SEEM TO US TO BE A
REMEDY ADEQUATE TO PROMISE ELIMINATION OF THE TENDENCY OF DU PONT'S
ACQUISITION OFFENSIVE TO SEC. 7.  UNDER THE DECREE, TWO-THIRDS OF DU
PONT'S HOLDINGS OF GENERAL MOTORS STOCK WILL BE VOTED BY DU PONT
SHAREHOLDERS - UPWARDS OF 40 MILLION SHARES.  COMMON SENSE TELLS US
THAT UNDER THIS ARRANGEMENT THERE CAN BE LITTLE ASSURANCE OF THE
DISSOLUTION OF THE INTERCORPORATE COMMUNITY OF INTEREST WHICH WE FOUND
TO VIOLATE THE LAW.  THE DU PONT SHAREHOLDERS WILL IPSO FACTO ALSO BE
GENERAL MOTORS VOTERS.  IT WILL BE IN THEIR INTEREST TO VOTE IN SUCH A
WAY AS TO INDUCE GENERAL MOTORS TO FAVOR DU PONT, THE VERY RESULT WHICH
WE FOUND ILLEGAL ON THE FIRST APPEAL.  IT MAY BE TRUE, AS APPELLEES
INSIST, THAT THESE SHAREHOLDERS WILL NOT EXERCISE AS MUCH INFLUENCE ON
GENERAL MOTORS AS DID DU PONT WHEN IT HELD AND VOTED THE SHARES AS A
BLOCK.  AND IT IS TRUE THAT THERE IS NO SHOWING IN THIS RECORD THAT THE
DU PONT SHAREHOLDERS WILL COMBINE TO VOTE TOGETHER, OR THAT THEIR
INFORMATION ABOUT GENERAL MOTORS' ACTIVITIES WILL BE DETAILED ENOUGH TO
ENABLE THEM TO VOTE THEIR SHARES AS STRATEGICALLY AS DU PONT ITSELF HAS
DONE.  BUT THESE ARGUMENTS MISCONCEIVE THE NATURE OF THIS PROCEEDING. 
THE BURDEN IS NOT ON THE GOVERNMENT TO SHOW DE NOVO THAT A "PASS
THROUGH" OF THE GENERAL MOTORS VOTE, LIKE DU PONT'S OWNERSHIP OF
GENERAL MOTORS STOCK, WOULD VIOLATE SEC. 7.  UNITED STATES V. ALUMINUM
CO. OF AMERICA, 91 F. SUPP. 333, 346 (D.C.S.D.N.Y. 1950).  IT NEED ONLY
APPEAR THAT THE DECREE ENTERED LEAVES A SUBSTANTIAL LIKELIHOOD THAT THE
TENDENCY TOWARDS MONOPOLY OF THE ACQUISITION CONDEMNED BY SEC. 7 HAS
NOT BEEN SATISFACTORILY ELIMINATED.  WE ARE NOT REQUIRED TO ASSUME,
CONTRARY TO ALL HUMAN EXPERIENCE, THAT DU PONT'S SHAREHOLDERS WILL NOT
VOTE IN THEIR OWN SELF-INTEREST.  MOREOVER, THE GENERAL MOTORS
MANAGEMENT, WHICH OVER THE YEARS HAS BECOME ACCUSTOMED TO DU PONT'S
SPECIAL RELATIONSHIP, (FN15) WOULD KNOW THAT THE RELATIONSHIP CONTINUES
TO A SUBSTANTIAL DEGREE, AND MIGHT WELL ACT ACCORDINGLY.  THE SAME IS
TRUE OF DU PONT'S COMPETITORS.  THEY MIGHT NOT TRY SO VIGOROUSLY TO
BREAK DU PONT'S HOLD ON GENERAL MOTORS' BUSINESS, AS IF COMPLETE
DIVESTITURE WERE ORDERED.  AND FINALLY, THE INFLUENCE OF THE DU PONT
COMPANY ITSELF WOULD NOT BE COMPLETELY DISSIPATED.  FOR UNDER THE
DECREE DU PONT WOULD HAVE THE POWER TO SELL ITS GENERAL MOTORS SHARES;
THE DISTRICT COURT EXPRESSLY HELD THAT "THERE WOULD BE NOTHING IN THE
DECREE TO PREVENT SUCH DISPOSITIONS."  177 F. SUPP., AT 41.  SUCH A
SALE WOULD PRESUMABLY RESTORE THE VOTE SEPARATED FROM THE SOLD STOCK
WHILE DU PONT OWNED IT.  THIS POWER TO TRANSFER THE VOTE COULD
CONCEIVABLY BE USED TO INDUCE GENERAL MOTORS TO FAVOR DU PONT
PRODUCTS.  IN SUM, THE "PASS THROUGH" OF THE VOTE DOES NOT PROMISE
ELIMINATION OF THE VIOLATION OFFENSIVE TO SEC. 7.  WHAT WAS SAID OF THE
SHERMAN ACT IN UNITED STATES V. UNION PACIFIC R. CO., 226 U.S. 470, 477
(1913), APPLIES HERE:  "SO FAR AS IS CONSISTENT WITH THIS PURPOSE A
COURT OF EQUITY DEALING WITH SUCH COMBINATIONS SHOULD CONSERVE THE
PROPERTY INTERESTS INVOLVED, BUT NEVER IN SUCH WISE AS TO SACRIFICE THE
OBJECT AND PURPOSE OF THE STATUTE.  THE DECREE OF THE COURTS MUST BE
FAITHFULLY EXECUTED AND NO FORM OF DISSOLUTION BE PERMITTED THAT IN
SUBSTANCE OR EFFECT AMOUNTS TO RESTORING THE COMBINATION WHICH IT WAS
THE PURPOSE OF THE DECREE TO TERMINATE." 

DU PONT REPLIES, INTER ALIA, THAT IT WOULD BE WILLING FOR ALL OF ITS
GENERAL MOTORS STOCK TO BE DISENFRANCHISED, IF THAT WOULD SATISFY THE
REQUIREMENT FOR EFFECTIVE RELIEF.  THIS SUGGESTION, NOT PRESENTED TO
THE DISTRICT COURT, IS DISTINCTLY AN AFTERTHOUGHT.  IF THE SUGGESTION
IS DISENFRANCHISEMENT ONLY WHILE DU PONT RETAINS THE STOCK, IT WOULD
NOT AVOID THE HAZARDS INHERENT IN DU PONT'S POWER TO TRANSFER THE
VOTE.  IF THE SUGGESTION IS PERMANENT LOSS OF THE VOTE, IT WOULD CREATE
A LARGE AND PERMANENT SEPARATION OF CORPORATE OWNERSHIP FROM CONTROL,
WHICH WOULD NOT ONLY RUN DIRECTLY COUNTER TO ACCEPTED PRINCIPLES OF
CORPORATE DEMOCRACY, BUT ALSO REDUCE SUBSTANTIALLY THE NUMBER OF VOTING
GENERAL MOTORS SHARES, THEREBY MAKING IT EASIER FOR THE OWNER OF A
BLOCK OF SHARES FAR BELOW AN ABSOLUTE MAJORITY TO OBTAIN WORKING
CONTROL, PERHAPS CREATING NEW ANTITRUST PROBLEMS FOR BOTH GENERAL
MOTORS AND THE DEPARTMENT OF JUSTICE IN THE FUTURE.  AND FINALLY, WE
SHOULD BE RELUCTANT TO EFFECT SUCH A DRASTIC CHANGE IN GENERAL MOTORS'
CAPITAL STRUCTURE, ESTABLISHED UNDER STATE CORPORATION LAW. 

APPELLEES ARGUE FURTHER THAT THE INJUNCTIVE PROVISIONS OF THE DECREE
SUPPLEMENTARY TO THE "PASS THROUGH" OF VOTING RIGHTS ADEQUATELY REMOVE
ANY OBJECTIONS TO THE EFFECTIVENESS OF THE "PASS THROUGH."  DU PONT IS
ENJOINED, FOR EXAMPLE, FROM IN ANY WAY INFLUENCING THE CHOICE OF
GENERAL MOTORS' OFFICERS AND DIRECTORS, AND FROM ENTERING INTO ANY
PREFERENTIAL TRADE RELATIONS WITH GENERAL MOTORS.  AND, UNDER PARA. IX
OF THE DECREE, THE GOVERNMENT MAY REAPPLY IN THE FUTURE SHOULD THIS
INJUNCTIVE RELIEF PROVE INADEQUATE.  PRESUMABLY THIS PROVISION COULD BE
USED TO PREVENT THE EXERCISE OF THE POWER TO TRANSFER THE VOTE.  BUT
THE PUBLIC INTEREST SHOULD NOT IN THIS CASE BE REQUIRED TO DEPEND UPON
THE OFTEN CUMBERSOME AND TIME-CONSUMING INJUNCTIVE REMEDY.  SHOULD A
VIOLATION OF ONE OF THE PROHIBITIONS BE THOUGHT TO OCCUR, THE
GOVERNMENT WOULD HAVE THE BURDEN OF INITIATING CONTEMPT PROCEEDINGS AND
OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT A VIOLATION HAD
INDEED BEEN COMMITTED.  (FN16)  SUCH A REMEDY WOULD, JUDGING FROM THE
HISTORY OF THIS LITIGATION, TAKE YEARS TO OBTAIN.  MOREOVER, AN
INJUNCTION CAN HARDLY BE DETAILED ENOUGH TO COVER IN ADVANCE ALL THE
MANY FASHIONS IN WHICH IMPROPER INFLUENCE MIGHT MANIFEST ITSELF.  AND
THE POLICING OF AN INJUNCTION WOULD PROBABLY INVOLVE THE COURTS AND THE
GOVERNMENT IN REGULATION OF PRIVATE AFFAIRS MORE DEEPLY THAN THE
ADMINISTRATION OF A SIMPLE ORDER OF DIVESTITURE.  (FN17)  WE THINK THE
PUBLIC IS ENTITLED TO THE SURER, CLEANER REMEDY OF DIVESTITURE.  THE
SAME RESULT WOULD FOLLOW EVEN IF WE WERE IN DOUBT.  FOR IT IS WELL
SETTLED THAT ONCE THE GOVERNMENT HAS SUCCESSFULLY BORNE THE
CONSIDERABLE BURDEN OF ESTABLISHING A VIOLATION OF LAW, ALL DOUBTS AS
TO THE REMEDY ARE TO BE RESOLVED IN ITS FAVOR.  (FN18) 

WE THEREFORE DIRECT COMPLETE DIVESTITURE.  SINCE THE DISTRICT COURT'S
DECREE WAS FRAMED AROUND THE PROVISION DIRECTING ONLY PARTIAL
DIVESTITURE, AND SINCE GENERAL MOTORS, CHRISTIANA, AND DELAWARE
ACQUIESCED IN ITS PROVISIONS ONLY ON THAT BASIS, WE SHALL NOT PASS UPON
THE PROVISIONS FOR ANCILLARY RELIEF BUT SHALL VACATE THE DECREE IN ITS
ENTIRETY EXCEPT AS TO THE PROVISIONS OF PARA. VI ENJOINING DU PONT
ITSELF FROM EXERCISING VOTING RIGHTS IN RESPECT OF ITS GENERAL MOTORS
STOCK.  IN THIS WAY THE DISTRICT COURT WILL BE FREE TO FASHION A NEW
DECREE CONSISTENT WITH THIS OPINION AT A NEW HEARING AT WHICH ALL
PARTIES MAY BE HEARD.  GENERAL MOTORS, CHRISTIANA, AND DELAWARE WILL
THUS BE ABLE TO RENEW, FOR THE DISTRICT COURT'S DECISION IN THE FIRST
INSTANCE, ANY OBJECTIONS THEY MAY HAVE TO THE POWER OF THE COURT TO
GRANT RELIEF AGAINST THEM. 

WE BELIEVE, HOWEVER, THAT THIS ALREADY PROTRACTED LITIGATION SHOULD
BE CONCLUDED AS SOON AS POSSIBLE.  TO THAT END WE DIRECT THE DISTRICT
COURT ON RECEIPT OF OUR JUDGMENT TO ENTER AN ORDER REQUIRING DU PONT TO
FILE WITHIN 60 DAYS A PROPOSED JUDGMENT PROVIDING FOR COMPLETE
DIVESTITURE OF ITS GENERAL MOTORS STOCK, TO COMMENCE WITHIN 90 DAYS,
AND TO BE COMPLETED WITHIN NOT TO EXCEED 10 YEARS, OF THE EFFECTIVE
DATE OF THE DISTRICT COURT'S JUDGMENT, AND REQUIRING THE GOVERNMENT TO
FILE, WITHIN 30 DAYS AFTER SERVICE UPON IT OF DU PONT'S PROPOSED
JUDGMENT, EITHER PROPOSED SPECIFIC AMENDMENTS TO SUCH DU PONT JUDGMENT
OR A PROPOSED ALTERNATE JUDGMENT OF DIVESTITURE.  THE DISTRICT COURT
SHALL GIVE PRECEDENCE TO THIS CAUSE ON ITS CALENDAR. 

THE JUDGMENT OF THE DISTRICT COURT, EXCEPT TO THE EXTENT PARA. VI IS
AFFIRMED, IS VACATED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SINCE A HOLDING THAT THE CLAYTON ACT HAD BEEN VIOLATED SUFFICED
TO DISPOSE OF THE CASE, WE DID NOT DECIDE WHETHER DU PONT HAD ALSO
VIOLATED THE SHERMAN ACT.  SEE 353 U.S., AT 588, NOTE.  5. 

FN2  IN THIS CASE, HOWEVER, A MAJORITY OF THE COURT SUBSTANTIALLY
MODIFIED THE DISTRICT COURT'S DECREE, IN SPITE OF EXPRESSIONS OF
DEFERENCE WRITTEN INTO THE PRINCIPAL OPINION. 

FN3  IN CRESCENT AMUSEMENT THE COURT RELIED IN PART ON THE FACT THAT
THE DISTRICT JUDGE HAD INITIALLY FOUND THE VIOLATION OF LAW.  THIS
CIRCUMSTANCE WAS SAID TO ENHANCE THE DEFERENCE OWED TO THE DISTRICT
JUDGE'S DETERMINATION OF THE MEASURES APPROPRIATE TO ELIMINATE THE
VIOLATION, 323 U.S., AT 185.  THIS FACTOR IS NOT PRESENT IN THE CASE
BEFORE US. 

FN4  32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29.  THE PURPOSE OF
THIS STATUTE WAS TO EXPEDITE DETERMINATION OF ANTITRUST CASES BY
ALLOWING THE ATTORNEY GENERAL TO OBTAIN A SPECIAL CIRCUIT (NOW
DISTRICT) COURT OF SEVERAL JUDGES BY FILING A CERTIFICATE OF PUBLIC
IMPORTANCE UNDER SEC. 1 OF THE ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C.
SEC. 28 (NO SUCH CERTIFICATE WAS FILED IN THIS CASE), AND BY PROVIDING
FOR DIRECT APPEAL TO THE SUPREME COURT FROM THE DECREE OF THE TRIAL
COURT, WHETHER COMPOSED OF ONE OR SEVERAL JUDGES, SUCH APPEAL TO BE
WITHIN THIS COURT'S OBLIGATORY JURISDICTION.  CONGRESS WAS MOVED BY THE
"FAR-REACHING IMPORTANCE OF THE CASES ARISING UNDER THE ANTITRUST LAWS
...  ."  36 CONG. REC. 1679 (REMARKS OF SENATOR FAIRBANKS, FEB. 4,
1903).  SEE ALSO H.R. REP. NO. 3020, 57TH CONG., 2D SESS. 2 (1903). 
FN5  IN ONE CASE THIS ELIMINATION OF THE NORMAL REVIEW BY THE COURT OF
APPEALS ALMOST PREVENTED THERE BEING ANY REVIEW OF THE DISTRICT COURT
AT ALL.  SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, 320 U.S. 708
(1943) (NOTING THE ABSENCE OF A QUORUM IN THIS COURT TO HEAR AN
EXPEDITING ACT APPEAL FROM A DISTRICT COURT).  BUT CONGRESS ACTED TO
KEEP SUCH AN IMPORTANT MATTER FROM GOING UNREVIEWED, SEE H.R. REP. NO.
1317, 78TH CONG., 2D SESS. (1944), AND ENACTED A SPECIAL STATUTE, 58
STAT. 272, 15 U.S.C. SEC. 29, PURSUANT TO WHICH THIS COURT IMMEDIATELY
CERTIFIED THE CASE TO A CIRCUIT COURT OF APPEALS, 322 U.S. 716 (1944),
WHICH PROCEEDED TO DECIDE THE APPEAL.  148 F.2D 416 (C.A.2D CIR.
1945).  SEE ALSO UNITED STATES V. UNITED STATES DISTRICT COURT, 334
U.S. 258 (1948). 

FN6  GOVERNMENT COUNSEL AT THE TRIAL ADVISED THE DISTRICT COURT THAT
HE HAD NO AUTHORITY TO SUGGEST MODES OF DIVESTITURE DIFFERENT FROM THE
PLAN PRESENTED BY THE GOVERNMENT TO THE DISTRICT COURT.  APPELLEES
SUGGEST THAT THE GOVERNMENT IS THUS ESTOPPED FROM URGING OTHER MODES OF
DIVESTITURE ON THIS APPEAL.  BUT PLAINLY, UNDER THE RULE OF CONTINENTAL
INSURANCE, NO STIPULATION BY THE GOVERNMENT COULD CIRCUMSCRIBE THIS
COURT'S POWER TO SEE THAT ITS MANDATE IS CARRIED OUT. 

FN7  BILLS WERE INTRODUCED IN THE EIGHTY-SIXTH CONGRESS TO AMELIORATE
THE INCOME-TAX CONSEQUENCES OF GAIN ON DISPOSITION OF STOCK PURSUANT TO
ORDERS ENFORCING THE ANTITRUST LAWS.  SEE HEARINGS ON S. 200 BEFORE THE
SENATE COMMITTEE ON FINANCE, 86TH CONG., 1ST SESS. (1959); HEARINGS ON
H.R. 8126 BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 86TH CONG., 1ST
SESS. (1959); H.R. REP. NO. 1128, 86TH CONG., 1ST SESS. (1959). 

FN8  SEE, E.G., UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S.
173, 189 (1944); UNITED STATES V. CORN PRODUCTS REFINING CO., 234 F.
964, 1018 (D.C.S.D.N.Y. 1916), APPEAL DISMISSED ON MOTION OF APPELLANT,
249 U.S. 621 (1919); UNITED STATES V. E.I. DU PONT DE NEMOURS & CO.,
188 F. 127, 153 (C.C.D. DEL. 1911), MODIFIED, 273 F. 869 (D.C.D. DEL.
1921); IN RE CROWN ZELLERBACH CORP., CCH TRADE REG. REP. 1957-1958
PARA. 26,923, AT P. 36,462 (F.T.C. 1958). 

FN9  WE REJECT THE GOVERNMENT'S ARGUMENT THAT THE FEDERAL TRADE
COMMISSION AND OTHER ADMINISTRATIVE AGENCIES CHARGED WITH THE DUTY OF
ENFORCING THE STATUTE ARE REQUIRED BY SEC. 11 OF THE CLAYTON ACT TO
ORDER DIVESTITURE WHENEVER THEY FIND A VIOLATION OF SEC. 7, AND THAT
THEREFORE COURTS ACTING UNDER SEC. 15 MUST GIVE THE SAME RELIEF.  EVEN
IF THE ADMINISTRATIVE AGENCIES WERE SO LIMITED, A QUESTION WHICH WE DO
NOT DECIDE, CONGRESS WOULD NOT BE DEEMED TO HAVE RESTRICTED THE BROAD
REMEDIAL POWERS OF COURTS OF EQUITY WITHOUT EXPLICIT LANGUAGE DOING SO
IN TERMS, OR SOME OTHER STRONG INDICATION OF INTENT.  HECHT CO. V.
BOWLES, 321 U.S. 321, 329 (1944). 

FN10  THE WORDS WERE ACTUALLY USED OF SEC. 3 OF THE CLAYTON ACT, BUT
THEY ARE EQUALLY APPLICABLE TO SEC. 7. 

FN11  SEE NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197
(1904); STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1 (1911); UNITED
STATES V. AMERICAN TOBACCO CO., 221 U.S. 106 (1911); UNITED STATES V.
UNION PACIFIC R. CO., 226 U.S. 61 (1912), MODIFIED, 226 U.S. 470
(1913); UNITED STATES V. READING CO., 226 U.S. 324 (1912), MODIFIED,
228 U.S. 158 (1913); UNITED STATES V. READING CO., 253 U.S. 26 (1920),
MODIFIED AFTER REMAND, CONTINENTAL INS. CO. V. UNITED STATES, 259 U.S.
156 (1922); UNITED STATES V. LEHIGH VALLEY R. CO., 254 U.S. 255 (1920);
UNITED STATES V. SOUTHERN PACIFIC CO., 259 U.S. 214 (1922); UNITED
STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173 (1944); HARTFORD-EMPIRE
CO. V. UNITED STATES, 323 U.S. 386 (1945), CLARIFIED, 324 U.S. 570
(1945); UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319 (1947); SCHINE
CHAIN THEATRES, INC., V. UNITED STATES, 334 U.S. 110 (1948); UNITED
STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131 (1948); BESSER MFG.
CO. V. UNITED STATES, 343 U.S. 444 (1952); INTERNATIONAL BOXING CLUB V.
UNITED STATES, 358 U.S. 242 (1959); UNITED STATES V. E.I. DU PONT DE
NEMOURS & CO., 188 F. 127 (C.C.D. DEL. 1911), MODIFIED, 273 F. 869
(D.C.D. DEL. 1921); UNITED STATES V. LAKE SHORE & M.S.R. CO., 203 F.
295 (D.C.S.D. OHIO 1912), MODIFIED 281 F. 1007 (D.C.S.D. OHIO 1916);
UNITED STATES V. INTERNATIONAL HARVESTER CO., 214 F. 987 (D.C.D. MINN.
1914), MODIFICATION DENIED, 10 F.2D 827 (D.C.D. MINN. 1926), AFF'D, 274
U.S. 693 (1927); UNITED STATES V. EASTMAN KODAK CO., 226 F. 62
(D.C.W.D.N.Y. 1915), DECREE ENTERED, 230 F. 522 (D.C.W.D.N.Y. 1916),
APPEAL DISMISSED ON MOTION OF APPELLANT, 255 U.S. 578 (1921); UNITED
STATES V. CORN PRODUCTS REFINING CO., 234 F. 964 (D.C.S.D.N.Y. 1916),
APPEAL DISMISSED ON MOTION OF APPELLANT, 249 U.S. 621 (1919); UNITED
STATES V. MINNESOTA MINING & MFG. CO., 92 F. SUPP. 947 (D.C.D. MASS.
1950), MODIFIED, 96 F. SUPP. 356 (D.C.D. MASS. 1951); UNITED STATES V.
IMPERIAL CHEMICAL INDUS., LTD., 100 F. SUPP. 504 (D.C.S.D.N.Y. 1951),
DECREE ENTERED, 105 F. SUPP. 215 (D.C.S.D.N.Y. 1952). 

IN MANY OF THESE CASES THE COURTS REFERRED TO "DISSOLUTION" OR
"DIVORCEMENT" INSTEAD OF "DIVESTITURE."  THESE TERMS HAVE TRADITIONALLY
BEEN TREATED AS TO A LARGE DEGREE INTERCHANGEABLE, AND WE SO REGARD
THEM.  SEE HALE AND HALE, MARKET POWER:  SIZE AND SHAPE UNDER THE
SHERMAN ACT 370 (1958); ADAMS, DISSOLUTION, DIVORCEMENT, DIVESTITURE:
THE PYRRHIC VICTORIES OF ANTITRUST, 27 IND. L.J. 1, NOTE 1 (1951). 

FN12  APPELLEES RELY ON SEVERAL CLAYTON ACT CONSENT DECREES GRANTING
RELIEF SHORT OF DIVESTITURE, BUT THE CIRCUMSTANCES SURROUNDING SUCH
NEGOTIATED AGREEMENTS ARE SO DIFFERENT THAT THEY CANNOT BE PERSUASIVELY
CITED IN A LITIGATION CONTEXT. 

FN13  SEE, E.G., MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V. UNITED
STATES, 362 U.S. 458 (1960); ALUMINUM CO. OF AMERICAN V. FEDERAL TRADE
COMM'N, 284 F. 401 (C.A. 3D CIR. 1922), CERT. DENIED, 261 U.S. 616
(1923), MODIFICATION DENIED, 299 F. 361 (C.A. 3D CIR. 1924).  UNITED
STATES V. NEW ENGLAND FISH EXCHANGE, 258 F. 732 (D.C.D. MASS. 1919),
MODIFICATION DENIED, 292 F. 511 (D.C.D. MASS. 1923), ON WHICH APPELLEES
PLACE GREAT RELIANCE, IS NOT A CLEAR EXCEPTION.  IT IS TRUE THAT
DEFENDANTS THERE WERE ALLOWED TO RETAIN THE ASSETS (NOT THE STOCK) OF
ONE OF THE EIGHT CORPORATIONS WHOSE STOCK THEY HAD ACQUIRED IN
VIOLATION OF SEC. 7.  BUT PROBABLY ACQUISITION OF ONLY ONE OF THOSE
CORPORATIONS' STOCK WOULD NOT HAVE BEEN ILLEGAL.  THE ONLY CLEAR
EXCEPTION IN THE COURTS IS AMERICAN CRYSTAL SUGAR CO. V. CUBAN-AMERICAN
SUGAR CO., 152 F. SUPP. 387 (D.C.S.D.N.Y. 1957), AFF'D ON THE
DEFENDANT'S APPEAL, 259 F.2D 524 (C.A.2D CIR. 1958).  BUT THE AUTHORITY
OF THAT CASE IS SOMEWHAT DIMINISHED BY THE FACT THAT IT WAS BROUGHT NOT
BY THE GOVERNMENT BUT BY A PRIVATE PLAINTIFF, AND BY THE ABSENCE OF ANY
DISCUSSION IN THE OPINION OF THE ISSUE OF DIVESTITURE VEL NON.  SEE 152
F. SUPP., AT 400-401 AND NOTE 16. 

FN14  SEE HALE AND HALE, OP CIT., SUPRA, NOTE 11, AT 370. 

FN15  FOR THE SIGNIFICANCE OF SUCH LONG HABIT, SEE NORTH AMERICAN CO.
V. SECURITIES & EXCHANGE COMM'N, 327 U.S. 686, 693 (1946); UNITED
STATES V. IMPERIAL CHEMICAL INDUS., LTD., 105 F. SUPP. 215, 236-237
(D.C.S.D.N.Y. 1952); DOUGLAS, DEMOCRACY AND FINANCE 33 (1940). 

FN16  UNITED STATES V. CORN PRODUCTS REFINING CO., 234 F. 964, 1018
(D.C.S.D.N.Y. 1916), APPEAL DISMISSED ON MOTION OF APPELLANT, 249 U.S.
621 (1919); 12 ALA. L. REV. 214, 220-221 (1959); NOTE, 56 COL. L. REV.
420, 430 (1956)("CONTEMPT CITATIONS ARE A POOR METHOD OF RESTORING
COMPETITION  ... "); BERGE, SOME PROBLEMS IN THE ENFORCEMENT OF THE
ANTITRUST LAWS, 38 MICH. L. REV. 462, 469 (1940). 

FN17  SEE HALE AND HALE, OP. CIT., SUPRA, NOTE 11, AT 379. 

FN18  UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707, 726
(1944); LOCAL 167, INTERNATIONAL BROTHERHOOD OF TEAMSTERS V. UNITED
STATES, 291 U.S. 293, 299 (1934).  CF.  WILLIAM R. WARNER & CO. V. ELI
LILLY & CO., 265 U.S. 526, 532 (1924)(SAME PRINCIPLE APPLIED TO PRIVATE
LITIGATION). 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE WHITTAKER AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

IN UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, THE
COURT HELD THAT THE ACQUISITION AND CONTINUED OWNERSHIP BY E.I. DU PONT
DE NEMOURS & CO. OF TWENTY-THREE PERCENT OF THE STOCK OF THE GENERAL
MOTORS CORPORATION CONSTITUTED A VIOLATION OF SEC. 7 OF THE CLAYTON
ACT.  (FN1)  THE QUESTION NOW BEFORE US IS THE ADEQUACY OF THE TERMS OF
THE ENFORCEMENT OF THAT JUDGMENT BY THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, 177 F. SUPP. 1.  IN ORDER TO
DETERMINE WHETHER THE DISTRICT JUDGE SATISFACTORILY DISCHARGED THE
DUTIES ASSIGNED HIM, IT IS NECESSARY TO BE CLEAR ABOUT THESE UNDERLYING
ELEMENTS OF THE QUESTION FOR DECISION:  (1) WHAT DID THIS COURT HOLD
AND SAY IN FINDING THAT DU PONT HAD VIOLATED SEC. 7?  (2) WHAT
CONSIDERATIONS GUIDED THE DISTRICT JUDGE IN FASHIONING HIS DECREE?  (3)
WHAT PRINCIPLES HAS THIS COURT LAID DOWN FOR THE FORMULATION OF DECREES
BY DISTRICT COURTS, PARTICULARLY UNDER THE ANTITRUST LAWS, AND FOR
REVIEW OF THOSE DECREES HERE? 

                                           I. 

AS THE COURT DESCRIBED IT, THE "PRIMARY ISSUE" IN THE GOVERNMENT'S
SUIT AGAINST DU PONT, GENERAL MOTORS, AND RELATED PARTIES WAS "WHETHER
DU PONT'S COMMANDING POSITION AS GENERAL MOTORS' SUPPLIER OF AUTOMOTIVE
FINISHES AND FABRICS WAS ACHIEVED ON COMPETITIVE MERIT ALONE, OF
BECAUSE ITS ACQUISITION OF THE GENERAL MOTORS' STOCK, AND THE
CONSEQUENT CLOSE INTERCOMPANY RELATIONSHIP, LED TO THE INSULATION OF
MOST OF THE GENERAL MOTORS' MARKET FROM FREE COMPETITION, WITH THE
RESULTANT LIKELIHOOD, AT THE TIME OF SUIT, OF THE CREATION OF A
MONOPOLY OF A LINE OF COMMERCE."  353 U.S., AT 588-589.  THE QUESTION
WAS ASKED IN THE CONTEXT OF THESE FACTS. 

THE TRANSACTION OUT OF WHICH THE CASE AROSE WAS THE ACQUISITION BY DU
PONT, DURING THE PERIOD 1917-1919, OF A TWENTY-THREE PERCENT STOCK
INTEREST IN GENERAL MOTORS.  THAT "COLOSSUS OF THE GIANT AUTOMOBILE
INDUSTRY" ABSORBED "UPWARDS OF TWO-FIFTHS OF THE TOTAL SALES OF
AUTOMOTIVE VEHICLES IN THE NATION" OVER THE PERIOD FROM 1938 TO 1955. 
IN 1955 IT RANKED FIRST IN SALES AND SECOND IN ASSETS AMONG ALL UNITED
STATES INDUSTRIAL CORPORATIONS.  PURCHASES OF AUTOMOTIVE FABRICS AND
FINISHES BY GENERAL MOTORS FROM DU PONT RAN INTO MILLIONS OF DOLLARS
ANNUALLY IN THE YEARS IMMEDIATELY PRECEDING THE INSTITUTION OF THE
GOVERNMENT'S SUIT IN 1949.  DU PONT SUPPLIED SIXTY-SEVEN PERCENT OF
GENERAL MOTORS' REQUIREMENTS FOR FINISHES IN 1946 AND SIXTY-EIGHT
PERCENT IN 1947.  THE FIGURES FOR FABRICS SUPPLIED TO GENERAL MOTORS BY
DU PONT IN THOSE YEARS ARE FIFTY-TWO AND THREE-TENTHS PERCENT AND
THIRTY-EIGHT AND FIVE-TENTHS PERCENT RESPECTIVELY. 

DU PONT'S "COMMANDING POSITION AS A GENERAL MOTORS SUPPLIER" WAS NOT
ACHIEVED UNTIL AFTER ITS ACQUISITION OF A SUBSTANTIAL FRACTION OF
GENERAL MOTORS' STOCK.  AT THE TIME OF THIS PURCHASE, DU PONT WAS
ACTIVELY SEEKING MARKETS FOR ITS NITROCELLULOSE, ARTIFICIAL LEATHER,
CELLULOID, RUBBER-COATED GOODS, AND PAINTS AND VARNISHES USED BY
AUTOMOBILE MANUFACTURERS.  LEADING DU PONT EXECUTIVES IN 1917 AND 1918
INDICATED THAT THE ACQUISITION OF GENERAL MOTORS STOCK WAS DUE IN PART
TO A BELIEF THAT IT WOULD SECURE FOR DU PONT AN IMPORTANT MARKET FOR
ITS AUTOMOTIVE PRODUCTS. 

"THIS BACKGROUND OF THE ACQUISITION, PARTICULARLY THE PLAIN
IMPLICATIONS OF THE CONTEMPORANEOUS DOCUMENTS, DESTROYS ANY BASIS FOR A
CONCLUSION THAT THE PURCHASE WAS MADE 'SOLELY FOR INVESTMENT.' 
MOREOVER, IMMEDIATELY AFTER THE ACQUISITION, DU PONT'S INFLUENCE
GROWING OUT OF IT WAS BROUGHT TO BEAR WITHIN GENERAL MOTORS TO ACHIEVE
PRIMACY FOR DU PONT AS GENERAL MOTORS' SUPPLIER OF AUTOMOTIVE FABRICS
AND FINISHES."  353 U.S., AT 602. 

A FORMER DU PONT OFFICIAL BECAME A GENERAL MOTORS VICE PRESIDENT AND
SET ABOUT MAXIMIZING DU PONT'S SHARE OF THE GENERAL MOTORS MARKET. 
LINES OF COMMUNICATIONS WERE ESTABLISHED BETWEEN THE TWO COMPANIES AND
SEVERAL DU PONT PRODUCTS WERE ACTIVELY PROMOTED.  WITHIN A FEW YEARS
VARIOUS DU PONT MANUFACTURED ITEMS WERE FILLING THE ENTIRE REQUIREMENTS
OF FROM FOUR TO SEVEN OF GENERAL MOTORS' EIGHT OPERATING DIVISIONS. 
THE FISHER BODY DIVISION, LONG CONTROLLED BY THE FISHER BROTHERS UNDER
A VOTING TRUST EVEN THOUGH GENERAL MOTORS OWNED A MAJORITY OF ITS
STOCK, FOLLOWED AN INDEPENDENT COURSE FOR MANY YEARS, BUT BY 1947 AND
1948 "RESISTANCE HAD COLLAPSED" AND ITS PURCHASES FROM DU PONT
"COMPARED FAVORABLY" WITH PURCHASES BY OTHER GENERAL MOTORS DIVISIONS. 
COMPETITORS CAME TO RECEIVE HIGHER PERCENTAGES OF GENERAL MOTORS
BUSINESS IN LATER YEARS, BUT IT IS "LIKELY" THAT THIS TREND STEMMED "AT
LEAST IN PART" FROM THE NEEDS OF GENERAL MOTORS OUTSTRIPPING DU PONT'S
CAPACITY. 

"THE FACT THAT STICKS OUT IN THIS VOLUMINOUS RECORD IS THAT THE BULK
OF DU PONT'S PRODUCTION HAS ALWAYS SUPPLIED THE LARGEST PART OF THE
REQUIREMENTS OF THE ONE CUSTOMER IN THE AUTOMOBILE INDUSTRY CONNECTED
TO DU PONT BY A STOCK INTEREST.  THE INFERENCE IS OVERWHELMING THAT DU
PONT'S COMMANDING POSITION WAS PROMOTED BY ITS STOCK INTEREST AND WAS
NOT GAINED SOLELY ON COMPETITIVE MERIT."  353 U.S., AT 605. 

THIS COURT AGREED WITH THE TRIAL COURT "THAT CONSIDERATIONS OF PRICE,
QUALITY AND SERVICE WERE NOT OVERLOOKED BY EITHER DU PONT OR GENERAL
MOTORS."  353 U.S., AT 606.  HOWEVER, IT DETERMINED THAT NEITHER THIS
FACTOR, NOT "THE FACT THAT ALL CONCERNED IN HIGH EXECUTIVE POSTS IN
BOTH COMPANIES ACTED HONORABLY AND FAIRLY, EACH IN THE HONEST
CONVICTION THAT HIS ACTIONS WERE IN THE BEST INTERESTS OF HIS OWN
COMPANY AND WITHOUT ANY DESIGN TO OVERREACH ANYONE, INCLUDING DU PONT'S
COMPETITORS," 353 U.S., AT 607, OUTWEIGHED THE GOVERNMENT'S CLAIM FOR
RELIEF.  THIS CLAIM, AS SUBMITTED TO THE DISTRICT COURT AND DISMISSED
BY IT, 126 F. SUPP. 235, ALLEGED VIOLATION NOT ONLY OF SEC. 7 OF THE
CLAYTON ACT, BUT ALSO OF SECS. 1 AND 2 OF THE SHERMAN ACT.  (FN2)  THE
LATTER PROVISIONS PROSCRIBE ANY CONTRACT, COMBINATION, OR CONSPIRACY IN
RESTRAINT OF INTERSTATE OR FOREIGN TRADE, AND MONOPOLIZATION OF, OR
ATTEMPTS, COMBINATIONS, OR CONSPIRACIES TO MONOPOLIZE, SUCH TRADE. 
HOWEVER, THIS COURT PUT TO ONE SIDE WITHOUT CONSIDERATION THE
GOVERNMENT'S APPEAL FROM THE DISMISSAL OF ITS SHERMAN ACT ALLEGATIONS. 
(FN3)  IT RESTED ITS DECISION SOLELY ON SEC. 7, WHICH READS IN
PERTINENT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE THE EFFECT OF
SUCH ACQUISITION MAY BE TO SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE
CORPORATION WHOSE STOCK IS SO ACQUIRED AND THE CORPORATION MAKING THE
ACQUISITION, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY,
OR TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE. 

*         *         *         *         * 

"THIS SECTION SHALL NOT APPLY TO CORPORATIONS PRUCHASING SUCH STOCK
SOLELY FOR INVESTMENT AND NOT USING THE SAME BY VOTING OR OTHERWISE TO
BRING ABOUT, OR IN ATTEMPTING TO BRING ABOUT, THE SUBSTANTIAL LESSENING
OF COMPETITION  ...  ." 

THE PURPOSE OF THIS PROVISION WAS THUS EXPLAINED IN THE COURT'S
OPINION: 

"SECTION 7 IS DESIGNED TO ARREST IN ITS INCIPIENCY NOT ONLY THE
SUBSTANTIAL LESSENING OF COMPETITION FROM THE ACQUISITION BY ONE
CORPORATION OF THE WHOLE OR ANY PART OF THE STOCK OF A COMPETING
CORPORATION, BUT ALSO TO ARREST IN THEIR INCIPIENCY RESTRAINTS OR
MONOPOLIES IN A RELEVANT MARKET WHICH, AS A REASONABLE PROBABILITY,
APPEAR AT THE TIME OF SUIT LIKELY TO RESULT FROM THE ACQUISITION BY ONE
CORPORATION OF ALL OR ANY PART OF THE STOCK OF ANY OTHER CORPORATION. 
THE SECTION IS VIOLATED WHETHER OR NOT ACTUAL RESTRAINTS OR MONOPOLIES,
OR THE SUBSTANTIAL LESSENING OF COMPETITION, HAVE OCCURRED OR ARE
INTENDED  ...  ."  353 U.S., AT 589. 

THUS, A FINDING OF CONSPIRACY TO RESTRAIN TRADE OR ATTEMPT TO
MONOPOLIZE WAS EXCLUDED FROM THE COURT'S DECISION.  INDEED, AS ALREADY
NOTED, THE COURT PROCEEDED ON THE ASSUMPTION THAT THE EXECUTIVES
INVOLVED IN THE DEALINGS BETWEEN DU PONT AND GENERAL MOTORS ACTED
"HONORABLY AND FAIRLY" AND EXERCISED THEIR BUSINESS JUDGMENT ONLY TO
SERVE WHAT THEY DEEMED THE BEST INTERESTS OF THEIR OWN COMPANIES. 
THIS, HOWEVER, DID NOT BAR FINDING THAT DU PONT HAD BECOME PRE-EMINENT
AS A SUPPLIER OF AUTOMOTIVE FABRICS AND FINISHES TO GENERAL MOTORS;
THAT THESE PRODUCTS CONSTITUTED A "LINE OF COMMERCE" WITHIN THE MEANING
OF THE CLAYTON ACT; THAT GENERAL MOTORS' SHARE OF THE MARKET FOR THESE
PRODUCTS WAS SUBSTANTIAL; AND THAT COMPETITION FOR THIS SHARE OF THE
MARKET WAS ENDANGERED BY THE FINANCIAL RELATIONSHIP BETWEEN THE TWO
CONCERNS: 

"THE STATUTORY POLICY OF FOSTERING FREE COMPETITION IS OBVIOUSLY
FURTHERED WHEN NO SUPPLIER HAS AN ADVANTAGE OVER HIS COMPETITORS FROM
AN ACQUISITION OF HIS CUSTOMER'S STOCK LIKELY TO HAVE THE EFFECTS
CONDEMNED BY THE STATUTE.  WE REPEAT, THAT THE TEST OF A VIOLATION OF
SEC. 7 IS WHETHER, AT THE TIME OF SUIT, THERE IS A REASONABLE
PROBABILITY THAT THE ACQUISITION IS LIKELY TO RESULT IN THE CONDEMNED
RESTRAINTS.  THE CONCLUSION UPON THIS RECORD IS INESCAPABLE THAT SUCH
LIKELIHOOD WAS PROVED AS TO THIS ACQUISITION  ...  ."  353 U.S., AT
607. 

ON THE BASIS OF THE FINDINGS WHICH LED TO THIS CONCLUSION, THE COURT
REMANDED THE CASE TO THE DISTRICT COURT TO DETERMINE THE APPROPRIATE
RELIEF.  THE SOLE GUIDANCE GIVEN THE COURT FOR DISCHARGING THE TASK
COMMITTED TO IT WAS THIS: 

"THE JUDGMENT MUST THEREFORE BE REVERSED AND THE CAUSE REMANDED TO
THE DISTRICT COURT FOR A DETERMINATION, AFTER FURTHER HEARING, OF THE
EQUITABLE RELIEF NECESSARY AND APPROPRIATE IN THE PUBLIC INTEREST TO
ELIMINATE THE EFFECTS OF THE ACQUISITION OFFENSIVE TO THE STATUTE.  THE
DISTRICT COURTS, IN THE FRAMING OF EQUITABLE DECREES, ARE CLOTHED 'WITH
LARGE DISCRETION TO MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE
PARTICULAR CASE.'  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392, 400-401."  353 U.S., AT 607-608. 

THIS BRINGS US TO THE COURSE OF THE PROCEEDINGS IN THE DISTRICT
COURT. 

      II. 

THIS COURT'S JUDGMENT WAS FILED IN THE DISTRICT COURT ON JULY 18,
1957.  THE FIRST PRETRIAL CONFERENCE - HELD TO APPOINT AMICI CURIAE TO
REPRESENT THE INTERESTS OF THE STOCKHOLDERS OF DU PONT AND GENERAL
MOTORS AND TO CONSIDER THE PROCEDURE TO BE FOLLOWED IN THE SUBSEQUENT
HEARINGS - TOOK PLACE ON SEPTEMBER 25, 2957.  AT THE OUTSET, THE
GOVERNMENT'S SPOKESMAN EXPLAINED THAT COUNSEL FOR THE GOVERNMENT AND
FOR DU PONT HAD ALREADY HELD PRELIMINARY DISCUSSIONS WITH A VIEW TO
ARRIVING AT A RELIEF PLAN THAT BOTH SIDES COULD RECOMMEND TO THE
COURT.  DU PONT, HE SAID, HAD PROPOSED DISENFRANCHISEMENT OF ITS
GENERAL MOTORS STOCK ALONG WITH OTHER RESTRICTIONS ON THE DU PONT
GENERAL MOTORS RELATIONSHIP.  THE GOVERNMENT, DEEMING THESE SUGGESTIONS
INADEQUATE, HAD URGED THAT ANY JUDGMENT INCLUDE DIVESTITURE OF DU
PONT'S SHARES OF GENERAL MOTORS.  COUNSEL FOR THE GOVERNMENT INVITED DU
PONT'S VIEWS ON THIS PROPOSAL BEFORE RECOMMENDING A SPECIFIC PROGRAM,
BUT STATED THAT IF THE COURT DESIRED, OR IF COUNSEL FOR DU PONT THOUGHT
FURTHER DISCUSSION WOULD NOT BE PROFITABLE, THE GOVERNMENT WAS PREPARED
TO SUBMIT A PLAN WITHIN THIRTY DAYS. 

COUNSEL FOR DU PONT INDICATED A PREFERENCE FOR THE SUBMISSION OF
DETAILED PLANS BY BOTH SIDES AT AN EARLY DATE.  NO PREVIOUS ANTITRUST
CASE, HE SAID, HAD INVOLVED INTERESTS OF SUCH MAGNITUDE OR PRESENTED
SUCH COMPLEX PROBLEMS OF RELIEF.  THE SUBMISSION OF DETAILED PLANS
WOULD PLACE THE ISSUES BEFORE THE COURT MORE READILY THAN WOULD
DISCUSSION OF DIVESTITURE OR DISENFRANCHISEMENT IN THE ABSTRACT.  THE
COURT ADOPTED THIS PROCEDURE WITH AN APPROPRIATE TIME SCHEDULE FOR
CARRYING IT OUT. 

THE GOVERNMENT SUBMITTED ITS PROPOSED DECREE ON OCTOBER 25, 1957. 
THE PLAN CALLED FOR DIVESTITURE BY DU PONT OF ITS 63,000,000 SHARES OF
GENERAL MOTORS STOCK BY EQUAL ANNUAL DISTRIBUTIONS TO ITS STOCKHOLDERS,
AS A DIVIDEND, OVER A PERIOD OF TEN YEARS.  CHRISTIANA SECURITIES
COMPANY AND DELAWARE REALTY & INVESTMENT COMPANY, MAJOR STOCKHOLDERS IN
DU PONT, AND THE STOCKHOLDERS OF DELAWARE WERE DEALT WITH SPECIALLY BY
PROVISIONS REQUIRING THE ANNUAL SALE BY A TRUSTEE, AGAIN OVER A TEN
YEAR PERIOD, OF DU PONT'S GENERAL MOTORS STOCK ALLOCABLE TO THEM, AS
WELL AS ANY GENERAL MOTORS STOCK WHICH CHRISTIANA AND DELAWARE OWNED
OUTRIGHT.  IF, IN THE TRUSTEE'S JUDGMENT, "REASONABLE MARKET
CONDITIONS" DID NOT PREVAIL DURING ANY GIVEN YEAR, HE WAS TO BE ALLOWED
TO PETITION THE COURT FOR AN EXTENSION OF TIME WITHIN THE TEN-YEAR
PERIOD.  IN ADDITION, THE RIGHT TO VOTE THE GENERAL MOTORS STOCK HELD
BY DU PONT WAS TO BE VESTED IN DU PONT'S STOCKHOLDERS, OTHER THAN
CHRISTIANA AND DELAWARE AND THE STOCKHOLDERS OF DELAWARE; DU PONT,
CHRISTIANA, AND DELAWARE WERE TO BE ENJOINED FROM ACQUIRING STOCK IN OR
EXERCISING CONTROL OVER GENERAL MOTORS; DU PONT, CHRISTIANA, AND
DELAWARE WERE TO BE PROHIBITED TO HAVE ANY DIRECTOR OR OFFICER IN
COMMON WITH GENERAL MOTORS, AND VICE VERSA; AND GENERAL MOTORS AND DU
PONT WERE TO BE ORDERED TO TERMINATE ANY AGREEMENT THAT PROVIDED FOR
THE PURCHASE BY GENERAL MOTORS OF ANY SPECIFIED PERCENTAGE OF ITS
REQUIREMENTS OF ANY DU PONT MANUFACTURED PRODUCT, OR FOR THE GRANT OF
EXCLUSIVE PATENT RIGHTS, OR FOR A GRANT BY GENERAL MOTORS TO DU PONT OF
A PREFERENTIAL RIGHT TO MAKE OR SELL ANY CHEMICAL DISCOVERY OF GENERAL
MOTORS, OR FOR THE MAINTENANCE OF ANY JOINT COMMERCIAL ENTERPRISE BY
THE TWO COMPANIES. 

ON MOTION OF THE AMICI CURIAE, THE COURT DIRECTED THAT A RULING BE
OBTAINED FROM THE COMMISSIONER OF INTERNAL REVENUE AS TO THE FEDERAL
INCOME TAX CONSEQUENCES OF THE GOVERNMENT'S PLAN.  ON MAY 9, 1958, THE
COMMISSIONER ANNOUNCED HIS RULINGS.  THE ANNUAL DIVIDENDS PAID TO DU
PONT STOCKHOLDERS IN SHARES OF GENERAL MOTORS STOCK WOULD BE TAXABLE AS
ORDINARY INCOME TO THE EXTENT OF DU PONT'S EARNINGS AND PROFITS.  THE
MEASURE, FOR FEDERAL INCOME TAX PURPOSES, OF THE DIVIDEND TO INDIVIDUAL
STOCKHOLDERS WOULD BE THE FAIR MARKET VALUE OF THE SHARES AT THE TIME
OF EACH ANNUAL DISTRIBUTION.  IN THE CASE OF TAXPAYING CORPORATE
STOCKHOLDERS, THE MEASURE WOULD BE THE LESSER OF THE FAIR MARKET VALUE
OF THE SHARES OR DU PONT'S TAX BASIS FOR THEM, WHICH IS APPROXIMATELY
$2.09 PER SHARE.  THE FORCED SALE OF THE GENERAL MOTORS STOCK OWNED BY
OR ALLOCABLE TO CHRISTIANA, DELAWARE, AND THE STOCKHOLDERS OF DELAWARE,
AND DEPOSITED WITH THE TRUSTEE, WOULD RESULT IN A TAX TO THOSE PARTIES
AT THE CAPITAL GAINS RATE. 

DU PONT'S COUNTERPROPOSAL WAS FILED ON MAY 14, 1958.  UNDER ITS PLAN
DU PONT WOULD RETAIN ITS GENERAL MOTORS SHARES BUT BE REQUIRED TO PASS
ON TO ITS STOCKHOLDERS THE RIGHT TO VOTE THOSE SHARES.   CHRISTIANA AND
DELAWARE WOULD, IN TURN, BE REQUIRED TO PASS ON THE VOTING RIGHTS TO
THE GENERAL MOTORS SHARES ALLOCABLE TO THEM TO THEIR OWN STOCKHOLDERS. 
DU PONT WOULD BE ENJOINED FROM HAVING AS A DIRECTOR, OFFICER, OR
EMPLOYEE ANYONE WHO WAS SIMULTANEOUSLY AN OFFICER OR EMPLOYEE OF
GENERAL MOTORS, AND NO DIRECTOR, OFFICER, OR EMPLOYEE OF DU PONT COULD
SERVE AS A DIRECTOR OF GENERAL MOTORS WITHOUT COURT APPROVAL.  DU PONT
WOULD BE DENIED THE RIGHT TO ACQUIRE ANY ADDITIONAL GENERAL MOTORS
STOCK EXCEPT THROUGH GENERAL MOTORS' DISTRIBUTIONS OF STOCK OR
SUBSCRIPTION RIGHTS TO ITS STOCKHOLDERS. 

ON JUNE 6, 1958, GENERAL MOTORS SUBMITTED ITS OBJECTIONS TO THE
GOVERNMENT'S PROPOSAL.  IT ARGUED, INTER ALIA, THAT A DIVESTITURE ORDER
WOULD SEVERELY DEPRESS THE MARKET VALUE OF THE STOCK OF BOTH GENERAL
MOTORS AND DU PONT, WITH CONSEQUENT SERIOUS LOSS AND HARDSHIP TO
HUNDREDS OF THOUSANDS OF INNOCENT INVESTORS, AMONG THEM THOUSANDS OF
SMALL TRUSTS AND CHARITABLE INSTITUTIONS; THAT THERE WOULD BE A SIMILAR
DECLINE IN THE MARKET VALUES OF OTHER AUTOMOTIVE AND CHEMICAL STOCKS,
WITH SIMILAR LOSSES TO THE STOCKHOLDERS OF THOSE COMPANIES; THAT THE
TREMENDOUS VOLUME OF GENERAL MOTORS STOCK HANGING OVER THE MARKET FOR
TEN YEARS WOULD HAMPER THE EFFORTS OF GENERAL MOTORS AND OTHER
AUTOMOBILE MANUFACTURERS TO RAISE EQUITY CAPITAL; AND THAT ALL THIS
WOULD HAVE A SERIOUS ADVERSE EFFECT ON THE ENTIRE STOCK MARKET AND ON
GENERAL BUSINESS ACTIVITY.  GENERAL MOTORS COMPREHENSIVELY CONTENDED
THAT THE GOVERNMENT PLAN WOULD NOT BE "IN THE PUBLIC INTEREST" AS
REQUIRED BY THE MANDATE OF THIS COURT. 

THE DECREES PROPOSED BY THE AMICI CURIAE WERE FILED IN AUGUST OF
1958.  THESE PLANSS, LIKE DU PONT'S, CONTAINED PROVISIONS FOR PASSING
THE VOTE ON DU PONT'S GENERAL MOTORS SHARES ON TO THE ULTIMATE
STOCKHOLDERS OF DU PONT, CHRISTIANA, AND DELAWARE, EXCEPT THAT OFFICERS
AND DIRECTORS OF THE THREE COMPANIES, THEIR SPOUSES, AND OTHER PEOPLE
LIVING IN THEIR HOUSEHOLDS, AS WELL AS OTHER SPECIFIED PERSONS, WERE TO
BE TOTALLY DISENFRANCHISED.  BOTH PLANS ALSO PROHIBITED COMMON
DIRECTORS, OFFICERS, OR EMPLOYEES BETWEEN DU PONT, CHRISTIANA, AND
DELAWARE, ON THE ONE HAND, AND GENERAL MOTORS ON THE OTHER.  FURTHER,
BOTH PLANS PLACED RESTRICTIONS ON TRADE RELATIONS BETWEEN DU PONT AND
GENERAL MOTORS.  AMICUS DALLSTREAM, REPRESENTING THE DU PONT
STOCKHOLDERS, PROPOSED IN ADDITION A PROGRAM TERMED A "TAKEDOWN," BY
WHICH DU PONT WOULD CREATE A NEW CLASS OF STOCK, "DU PONT SPECIAL
COMMON," WHICH WOULD HAVE NO RIGHTS IN DU PONT'S GENERAL MOTORS STOCK
AND WHICH DU PONT STOCKHOLDERS COULD OBTAIN, ALONG WITH THEIR ALLOCABLE
PORTION OF THE GENERAL MOTORS SHARES OWNED BY DU PONT, AT TIMES
SUITABLE TO THEM, IN EXCHANGE FOR THEIR PRESENT DU PONT COMMON.  THIS
PROPOSAL WOULD HAVE DIFFERENT, AND IN SEVERAL RESPECTS MORE FAVORABLE,
TAX CONSEQUENCES THAN THOSE OF THE GOVERNMENT'S PLAN.  (FN4) 

IN A MEMORANDUM FILED ON SEPTEMBER 26, 1958, THE GOVERNMENT, ON THE
ASSUMPTION THAT DIVESTITURE WAS REQUIRED UNDER THE CLAYTON ACT,
SUGGESTED VARIOUS WAYS IN WHICH ITS DECREE MIGHT BE MODIFIED TO
AMELIORATE ITS HARSH TAX CONSEQUENCES.  THE GOVERNMENT STATED THAT IT
WOULD HAVE NO OBJECTIONS TO THE MODIFICATIONS DISCUSSED IN THE
MEMORANDUM BUT IT DID NOT SUBMIT AMENDMENTS TO ITS ORIGINAL PROPOSAL. 

ON THE SAME DAY, THE GOVERNMENT FILED A MOTION FOR A PRELIMINARY
INJUNCTION, SEEKING TO RESTRAIN DU PONT, CHRISTIANA, AND DELAWARE FROM
EXERCISING THEIR VOTING RIGHTS IN GENERAL MOTORS STOCK, TO PREVENT DU
PONT, CHRISTIANA, AND DELAWARE FROM HAVING ANY DIRECTOR, OFFICER, OR
EMPLOYEE IN COMMON WITH GENERAL MOTORS OR NOMINATING ANY SUCH PERSON TO
SERVE IN GENERAL MOTORS, AND TO PROHIBIT FURTHER ACQUISITIONS OF
GENERAL MOTORS STOCK BY THE THREE CORPORATIONS.  THE GOVERNMENT URGED
THAT SINCE ALL PARTIES WERE IN SUBSTANTIAL AGREEMENT ON THESE MEASURES
AS THE MINIMUM APPROPRIATE RELIEF, THE COURT SHOULD ADOPT THEM WITHOUT
DELAY.  THE COURT DENIED THE MOTION ON NOVEMBER 3, 1958, ON THE GROUND
THAT THE GOVERNMENT HAD FAILED TO SHOW A LIKELIHOOD OF IRREPARABLE
INJURY IN THE ABSENCE OF IMMEDIATE RELIEF AND THAT, WITH FINAL
DETERMINATION OF THE CASE NOT FAR DISTANT, IT WOULD BE UNDESIRABLE TO
BEGIN DECIDING ISSUES PIECEMEAL AT THAT LATE DATE. 

AFTER FURTHER PRELIMINARIES WHICH NEED NOT BE RECOUNTED, THE TRIAL OF
THE ISSUES ON THE APPROPRIATE RELIEF COMMENCED ON FEBRUARY 16, 1959,
AND CONTINUED TO A CONCLUSION ON APRIL 9, 1959.  THE GOVERNMENT
PRESENTED ITS EVIDENCE ON TWELVE HEARING DAYS; THE DEFENDANTS AND AMICI
ALSO PRESENTED EVIDENCE ON TWELVE DAYS; AND THE GOVERNMENT TOOK FOUR
MORE HEARING DAYS FOR THE PRESENTATION OF REBUTTAL EVIDENCE.  BRIEFS
WERE FILED AND THE CASE WAS SUBMITTED TO THE COURT IN JUNE 1959.  THE
COURT'S DECISION WAS ANNOUNCED ON OCTOBER 2, 1959.    THE PRINTED
RECORD OF THE PROCEEDINGS BELOW COVERS 3,340 PAGES.  OF THIS, TRIAL OF
THE ISSUES PERTAINING TO THE TERMS OF THE DECREE FILLS 2,380 PAGES.  AN
ADDITIONAL 543 PAGES CONTAIN EXHIBITS.  IN THE COURSE OF THE TRIAL
TWENTY-NINE WITNESSES WERE CALLED BY THE GOVERNMENT AND THIRTY-TWO BY
THE DEFENDANTS AND AMICI.  THE PRINTED EXHIBITS NUMBER 193 SUBMITTED BY
THE GOVERNMENT, THIRTY-TWO BY DU PONT, THIRTY BY GENERAL MOTORS, NINE
BY CHRISTIANA AND DELAWARE, AND ONE BY AMICUS DALLSTREAM.  THE BULK OF
THIS MASS OF EVIDENCE BORE PRINCIPALLY UPON DISPUTES OVER THE MARKET
AND TAX CONSEQUENCES OF DIVESTITURE OF DU PONT'S GENERAL MOTORS STOCK
AND UPON THE REQUIREMENT OF RESORT TO THIS REMEDY FOR THE EFFECTIVE
ENFORCEMENT OF SEC. 7. 

ON OCCASION THE GOVERNMENT OBJECTED TO THE ATTENTION THAT WAS BEING
FOCUSED ON THE DETAILS OF ITS PROPOSED DECREE.  THE GOVERNMENT INSISTED
THAT ITS ULTIMATE AIM WAS NOT TO FURTHER A SPECIFIC PLAN BUT TO OBTAIN
ANY REASONABLE ORDER OF DIVESTITURE.  HOWEVER, LATE IN THE TRIAL THE
GOVERNMENT INDICATED THAT ITS ORIGINAL DIVESTITURE PROPOSAL STOOD
BEFORE THE COURT UNAMENDED IN ANY DETAIL. 

"MR. REYCRAFT (CHIEF COUNSEL FOR THE GOVERNMENT):  ...  . 

  *         *         *         *         * 

"I MIGHT ALSO ADD THAT IT IS RATHER AN OBVIOUS THOUGHT THAT THE
JUDGMENT WHICH WE DID FILE WAS APPROVED BY NOT ONLY THE ASSISTANT
ATTORNEY GENERAL BUT THE ATTORNEY GENERAL, AND THAT WHILE I AM
AUTHORIZED HERE TO REPRESENT THE GOVERNMENT, I HAVE NO AUTHORITY TO
CHANGE THE DECISIONS THEY MAKE. 

"THE COURT:  IT IS MY UNDERSTANDING THEN THAT YOU ARE STANDING ON THE
DECREE THAT YOU PROPOSED BEFORE THIS HEARING STARTED? 

"MR. REYCRAFT:  THAT IS RIGHT, SIR. 

     *         *         *         *         * 

"MR. COX (COUNSEL FOR DU PONT):  ...  . 

"  ...  I UNDERSTNAD MR. REYCRAFT'S POSITION NOW TO BE THAT HE STANDS
ON THE JUDGMENT THAT WAS FILED.  BUT IF THE GOVERNMENT SHOULD COME IN
ON ITS BRIEF WITH A BRAND NEW PROPOSAL SOMETIME, MAY IT PLEASE THE
COURT, WE MAY FIND OURSELVES IN A POSITION WHERE WE WILL HAVE TO COME
INTO COURT AND ASK FOR SOME KIND OF AN OPPORTUNITY TO HAVE A LOOK AT
THAT. 

"THE COURT:  THAT WILL DEPEND ENTIRELY ON THE EXTENT OR THE CHARACTER
OF THE DEVIATION FROM THE ORIGINAL PROPOSAL. 

"MR. COX:  I WOULD ASSUME THAT WOULD BE TRUE. 

"THE COURT:  FROM WHAT MR. REYCRAFT HAS SAID, I AM ASSUMING THAT THAT
IS THE DECREE, WITH PROBABLY MINOR CHANGES. 

"MR. REYCRAFT:  I HAVE NOTHING FURTHER, YOUR HONOR."  (FN5) 

THUS IT APPEARS THAT THE GOVERNMENT STOOD ON ITS ORIGINAL PROPOSAL,
RATHER THAN ON ALTERNATIVE SUGGESTIONS. 

AND SO ONE COMES TO CONSIDER HOW THE COURT DEALT WITH THE ISSUES
PRESENTED BY THE PARTIES. 

                                            III. 

AFTER DISPOSING OF TWO PRELIMINARY QUESTIONS - RULING IN FAVOR OF THE
AMENABILITY OF GENERAL MOTORS, CHRISTIANA, AND DELAWARE, AS PARTIES NOT
CONDEMNED AS VIOLATORS OF SEC. 7, TO THE ENFORCING POWER OF THE COURT,
AND AGAINST THE AMENABILITY TO DIRECT ENFORCEMENT OF HOLDERS OF BOTH DU
PONT AND DELAWARE STOCK WHO WERE NOT PARTIES TO THE SUIT - THE COURT
THUS DEFINED THE CENTRAL ISSUE BEFORE IT: 

"UNDER THE MANDATE OF THE SUPREME COURT IT IS THE RESPONSIBILITY OF
THIS COURT TO FRAME A JUDGMENT WHICH WILL ELIMINATE THE EFFECTS OF DU
PONT'S ACQUISITION OF STOCK OF GENERAL MOTORS WHICH ARE OFFENSIVE TO
THE STATUTE.  THE EFFECT OF THE ACQUISITION WHICH THE SUPREME COURT
FOUND TO BE OFFENSIVE TO THE STATUTE WAS THE 'REASONABLE PROBABILITY'
THAT THE ACQUISITION MIGHT RESULT IN RESTRAINT OR MONOPOLIZATION OF THE
MARKET FOR AUTOMOTIVE FABRICS AND FINISHES.  353 U.S. 586, 595, 607, 77
S. CT. 872, 1 L. ED. 2D 1057.  ACCORDINGLY, THE PROBLEM BEFORE THIS
COURT IS ONE OF DEVISING A JUDGMENT THAT WILL EFFECTIVELY GUARD AGAINST
THE PROBABILITY OF RESTRAINT OR MONOPOLIZATION WHICH THE SUPREME COURT
FOUND TO EXIST."  177 F. SUPP., AT 12-13. 

IN DISCHARGING ITS DUTY UNDER THIS MANDATE, PARTICULARLY SINCE
RELEVANT CIRCUMSTANCES MIGHT OFFER A CHOICE BETWEEN EFFECTIVE
ALTERNATIVES, THE COURT DEEMED IT APPROPRIATE NOT TO EXCLUDE FROM
CONSIDERATION THE VAST MULTIFORM INTERESTS AT STAKE - BOTH THE HUNDREDS
OF THOUSANDS OF TRULY INNOCENT STOCKHOLDERS AND THE BEARING ON THE
NATIONAL ECONOMY OF THE NATURE OF THE DISPOSITION OF DU PONT'S GENERAL
MOTORS HOLDINGS. 

"THIS DOES NOT MEAN THAT THE PRIVATE INTERESTS OF THE STOCKHOLDERS CAN
OUTWEIGH THE PUBLIC INTEREST IN A JUDGMENT THAT WILL EFFECTIVELY
DISSIPATE THE EFFECTS OF THE ACQUISITION FOUND TO BE UNLAWFUL.  BUT IT
DOES MEAN THAT IN THE OPINION OF THIS COURT THE PRIMARY PUBLIC PURPOSE
SHOULD BE ACHIEVED SO FAR AS POSSIBLE WITHOUT INFLICTING UNNECESSARY
INJURY UPON INNOCENT STOCKHOLDERS IN THE VARIOUS CORPORATIONS
INVOLVED.  THE PURPOSE OF THE JUDGMENT SHOULD BE REMEDIAL AND NOT
PUNITIVE.  HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 409, 65
S. CT. 373, 89 L. ED. 322; UNITED STATES V. NATIONAL LEAD CO., 332 U.S.
319, 67 S. CT. 1634, 91 L. ED. 2077.  NO HARSH AND OPPRESSIVE
CONSEQUENCES SHOULD BE VISITED UPON THE STOCKHOLDERS UNLESS IT CAN BE
SHOWN ON THE FACTS THAT THESE RESULTS ARE INESCAPABLE IF A DECREE IS TO
BE FRAMED THAT WILL COMPLY WITH THE MANDATE OF THE SUPREME COURT.  THE
CASES LEAVE NO DOUBT THAT THESE ARE CONSIDERATIONS WHICH THE COURT
SHOULD WEIGH IN THE FRAMING OF ITS FINAL JUDGMENT.  UNITED STATES V.
AMERICAN TOBACCO CO., 221 U.S. 106, 185, 31 S. CT. 632, 55 L. ED. 663. 
COMPARE TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S. 593, 604,
71 S. CT. 971, 95 L. ED.  1199."  177 F. SUPP., AT 13-14. 

THE GOVERNMENT'S FIRST MAJOR CONTENTION - THAT BY THE TERMS OF THE
CLAYTON ACT THE COURT HAD NO CHOICE BUT TO ORDER TOTAL DIVESTITURE -
WAS REJECTED ON THE BASIS OF AN ANALYSIS OF THE STATUTE AND THIS
COURT'S REAFFIRMATION OF THE "LARGE DISCRETION" POSSESSED BY THE
DISTRICT COURTS "TO MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE
PARTICULAR CASE."  THE COURT PROCEEDED TO A CONSIDERATION OF THE
EVIDENCE INTRODUCED BY THE PARTIES.  THE FIRST SUBJECT WAS THE TAX
IMPACT OF THE GOVERNMENT'S PROPOSED DECREE.  EXTENSIVE EXPERT EVIDENCE
(MUCH OF WHICH WAS DERIVED FROM A STATISTICAL SURVEY FOUND BY THE COURT
TO HAVE BEEN SOUNDLY AND OJBECTIVELY CONDUCTED) INDICATED THAT
INDIVIDUAL STOCKHOLDERS OF DU PONT WOULD PAY INCOME TAXES AT A RATE OF
FIFTY PERCENT TO SIXTY PERCENT UNDER THE GOVERNMENT'S PLAN, AND THAT
THE TAXES PAYABLE BY SUCH PERSONS COULD AMOUNT TO $1,000,000,000 IF THE
VALUE OF THE GENERAL MOTORS SHARES WERE $50 PER SHARE, AND
APPROXIMATELY $770,000,000 IF $40 PER SHARE.  THE CAPITAL GAINS TAX ON
THE SALE OF THE GENERAL MOTORS STOCK ALLOCABLE TO CHRISTIANA AND
DELAWARE WOULD BE PERHAPS AS MUCH AS $200,000,000.  THE COURT
DETERMINED THAT VARIATIONS OF THE GOVERNMENT'S PLAN WOULD ALSO RESULT
IN VAST TAX LEVIES.  IT FOUND, FOR EXAMPLE, THAT IF A SINGLE
DISTRIBUTION WERE EMPLOYED TO DISPOSE OF THE 63,000,000 GENERAL MOTORS
SHARES, AT AN ASSUMED MARKET VALUE OF $45 PER SHARE THE TOTAL TAX COST
WOULD BE $588,044,000. 

A SECOND ECONOMIC CONSEQUENCE OF THE GOVERNMENT'S DIVESTITURE SCHEME
WOULD BE ITS IMPACT ON THE MARKET VALUE OF THE SECURITIES INVOLVED. 
THE GOVERNMENT RELIED ON THREE TYPES OF EVIDENCE TO SHOW THAT ITS PLAN
WOULD HAVE LITTLE INFLUENCE ON THE MARKET PRICES OF GENERAL MOTORS AND
DU PONT STOCK.  THE FIRST TYPE WAS EXPERT TESTIMONY THAT THERE WAS A
REGULAR FLOW OF INVESTMENT MONEY COMING INTO THE MARKET.  HOWEVER, UPON
DETAILED REVIEW OF THE TESTIMONY OF A DOZEN WITNESSES, THE COURT
CONCLUDED THAT "THERE WAS NO CONVINCING EVIDENCE IN THIS CATEGORY THAT
ANY SUBSTANTIALL PORTION OF THIS INVESTMENT MONEY WOULD BE DIRECTED TO
BUYING GENERAL MOTORS STOCK AT THE TRUE VALUE OF THE STOCK, IF THE
GOVERNMENT DECREE WERE IN EFFECT."  177 F. SUPP., AT 22. 

THE GOVERNMENT'S SECOND TYPE OF EVIDENCE RELATING TO THE MARKET
CONSEQUENCES OF ITS DECREE WAS THE STATISTICAL TESTIMONY OF ACADEMIC
AND PROFESSIONAL ANALYSTS.  THE COURT NOTED THAT IT WAS SHOWN NO CHARTS
OR STATISTICS RELATING TO A SITUATION "REMOTELY APPROACHING" THE FORCED
SALE OF 2,000,000 SHARES OF GENERAL MOTORS STOCK EACH YEAR FOR TEN
YEARS, ATTENDED BY ADDITIONAL SALES OF BOTH GENERAL MOTORS AND DU PONT
STOCK FOR TAX AND OTHER PURPOSES.  FURTHER, IT FOUND THAT ONE
GOVERNMENT EXPERT ADMITTED HE WOULD DEFER TO THE JUDGMENT OF INVESTMENT
BANKERS IN THE MATTER OF THE PRICE FOR WHICH THE GENERAL MOTORS STOCK
COULD BE SOLD; ANOTHER TESTIFIED THAT IN THE PAST AN INCREASE IN STOCK
SUPPLY OF TWENTY PERCENT HAD BEEN ASSOCIATED WITH PRICE DECLINES OF
BETWEEN TEN AND FIFTEEN PERCENT; THE TESTIMONY OF ANOTHER GOVERNMENT
WITNESS WAS BASED ON INADEQUATELY DRAWN STATISTICAL TABLES, AND HIS
DEMEANOR ON THE WITNESS STAND DEPRIVED HIS EVIDENCE OF CREDIBILITY; A
FOURTH WITNESS' OPINIONS HAD NO FOUNDATION IN FACTUAL EVIDENCE. 

THE GOVERNMENT'S THIRD TYPE OF EVIDENCE RELATED TO SECURITIES
OFFERINGS IN THE RECENT PAST.  THE COURT DETERMINED THAT THE
CIRCUMSTANCES OF THESE OFFERINGS - I.E., THEIR BACKGROUND, MAGNITUDE,
TIMING, AND DURATION - MADE THEM DISSIMILAR TO A DIVESTITURE OF DU
PONT'S INTEREST IN GENERAL MOTORS.  IN ANY EVENT MOST OF THESE
OFFERINGS DID HAVE A DEPRESSING EFFECT ON THE MARKET VALUE OF THE STOCK
INVOLVED.  NONE OF THIS EVIDENCE, THE COURT FOUND, GAVE ASSURANCE THAT
THE GOVERNMENT PROPOSAL WOULD NOT CAUSE SERIOUS LOSS ON THE SALE OF
GENERAL MOTORS AND DU PONT STOCK DURING THE DIVESTITURE PERIOD. 

THE DEFENDANTS COUNTERED THE GOVERNMENT'S CASE WITH A VARIETY OF
EVIDENCE.  TWO EXPERIENCED UNDERWRITERS TESTIFIED THAT THE GOVERNMENT'S
TEN-YEAR DIVESTITURE PLAN WOULD RESULT IN A DECLINE IN THE VALUE OF
GENERAL MOTORS STOCK OF FROM TWENTY PERCENT TO THIRTY PERCENT; THAT
HEAVY TAX SALES OF DU PONT WOULD LOWER ITS PRICE AT LEAST TWENTY-FIVE
PERCENT; THAT DISTRIBUTION OF GENERAL MOTORS STOCK IN LIEU OF CASH
DIVIDENDS WOULD BE EVEN WORSE FROM THIS STANDPOINT; THAT EVEN AN
EXTENSION OF THE DIVESTITURE PERIOD TO TWENTY YEARS WOULD NOT PREVENT
DECLINES IN THE NEIGHBORHOOD OF FIFTEEN PERCENT; THAT A FURTHER LOSS
ESTIMATED AT FROM $1.50 TO $2 PER SHARE SOLD IN UNDERWRITING EXPENSE
WOULD BE INCURRED BY CHRISTIANA AND DELAWARE; AND, FINALLY, THAT THE
TRUSTEE COULD NEVER MAKE THE SALES DURING THE DIVESTITURE PERIOD
ANYWAY, SINCE HE COULD NOT REALIZE A PRICE, IN THE WORDS OF THE
GOVERNMENT'S PROPOSED FINAL JUDGMENT, "SUFFICIENTLY HIGH TO REFLECT THE
FAIR VALUE AND TRUE WORTH OF THE STOCK." 

SEVERAL TRUST MANAGEMENT EXECUTIVES TESTIFIED THAT BECAUSE OF THE TAX
CONSEQUENCES OF THE GOVERNMENT'S DECREE AND THE DIFFICULTIES OF
ALLOCATING EQUITABLY THE GENERAL MOTORS SHARES RECEIVED AS DIVIDENDS BY
THE TRUSTS, THEY, AND PRESUMABLY OTHERS IN THEIR POSITION THROUGHOUT
THE COUNTRY, WOULD BE FORCED TO MAKE MASS SALES OF DU PONT STOCK. 
EXECUTIVES OF SEVERAL INSURANCE COMPANIES AND AN INVESTMENT TRUST
COMPANY PREDICTED DECLINES IN THE VALUE OF GENERAL MOTORS STOCK AND
EXPRESSED AN INTENTION TO BUY IT FOR THEIR CONCERNS ONLY AT
CONSIDERABLY REDUCED PRICES.  MANY WITNESSES CONCURRED IN THE VIEW THAT
THE GOVERNMENT'S DECREE WOULD RENDER FUTURE FINANCING BY GENERAL MOTORS
HIGHLY UNECONOMIC AND VERY DIFFICULT TO ACCOMPLISH. 

THE COURT THEN APPRAISED THE EVIDENCE BEARING ON POSSIBLE VOTING
CONTROL OF GENERAL MOTORS, UNDER A DECREE OF LESS THAN TOTAL
DIVESTITURE, BY CORPORATIONS OR INDIVIDUALS AFFILIATED WITH DU PONT. 
IT DETERMINED THAT THE GOVERNMENT'S BROADEST GROUPING - INDIVIDUALS WHO
WERE STOCKHOLDERS OF DELAWARE, ADDITIONAL INDIVIDUALS NAMED DU PONT,
AND CERTAIN CORPORATIONS IN WHICH BOTH GROUPS (SIXTY-FIVE PERSONS IN
ALL) OWN STOCK OR ON WHOSE BOARDS THEY SIT - WOULD, UNDER THE DU PONT
PLAN'S "PASS-THROUGH" OF VOTING RIGHTS, AGGREGATE THE VOTE OF ABOUT
EIGHT PERCENT OF THE TOTAL VOTE OF GENERAL MOTORS.  IT WAS UNCLEAR TO
THE COURT EITHER THAT THIS COMBINATION HAD A REASONABLE BASIS IN FACT
OR THAT, EVEN IF IT DID REPRESENT A COHESIVE BLOCK OF VOTES, IT WAS A
LARGE ENOUGH BLOCK TO EXERCISE ANY REAL CONTROL OVER GENERAL MOTORS. 
HOWEVER, THE COURT DEEMED IT UNNECESSARY TO RESOLVE THESE QUESTIONS,
SINCE IT INTENDED TO FRAME A DECREE TO GUARANTEE THAT CONCERTED ACTION
BY THESE STOCKHOLDERS WOULD BE PRECLUDED. 

ON THE BASIS OF ITS APPRAISAL OF THE EVIDENCE, THE COURT REACHED ITS
ESSENTIAL CONCLUSIONS.  THE FIRST QUESTION WAS WHAT PROVISION TO MAKE
WITH RESPECT TO DU PONT'S 63,000,000 SHARES OF GENERAL MOTORS.  IT
DETERMINED THAT A CAREFUL AND DETAILED PLAN FOR A "PASS-THROUGH" OF THE
VOTES OF THESE SHARES TO DU PONT'S STOCKHOLDERS AND AN INJUNCTION TO
PREVENT DU PONT AND GENERAL MOTORS FROM SHARING COMMON OFFICERS,
DIRECTORS, AND EMPLOYEES WERE NECESSARY.  THE COURT THEN CONSIDERED
WHETHER TITLE TO THE STOCK, STRIPPED OF THESE VITAL INCIDENTS OF
OWNERSHIP, MUST ALSO BE TAKEN FROM DU PONT, "IN ORDER TO REMOVE AND TO
GUARD AGAINST THE PROBABILITY OF RESTRAINT OR MONOPOLIZATION OF TRADE
WHICH WAS THE CONSEQUENCE THE SUPREME COURT FOUND TO BE OFFENSIVE TO
THE STATUTE."  177 F. SUPP., AT 40.  "THERE IS NO EVIDENCE," IT
CONCLUDED, "ON WHICH THE COURT COULD MAKE SUCH A FINDING."  177 F.
SUPP., AT 40. 

"IN ESSENCE, THEREFORE, WHAT WOULD BE LEFT IN DU PONT WOULD BE THE
MOST STERILE KIND OF AN INVESTMENT.  THE COURT NOTES IN THIS CONNECTION
THAT SECTION 7 OF THE CLAYTON ACT EXPRESSLY EXCLUDES FROM ITS OPERATION
'CORPORATIONS PURCHASING SUCH STOCK SOLELY FOR INVESTMENT AND NOT USING
THE SAME BY VOTING OR OTHERWISE' TO BRING ABOUT ANTI-COMPETITIVE
EFFECTS.  THERE WOULD THUS APPEAR TO BE A RECOGNITION ON THE PART OF
CONGRESS THAT THE HOLDING OF STOCK DOES NOT IN ALL INSTANCES CARRY WITH
IT THE POWER TO BRING ABOUT CONSEQUENCES OFFENSIVE TO THE STATUTE.  THE
COURT RECOGNIZES THAT THE SUPREME COURT HAS HELD THAT IN THE PAST DU
PONT HAS NOT HELD ITS STOCK IN GENERAL MOTORS SOLELY FOR INVESTMENT. 
THIS COURT IS OF THE OPINION, HOWEVER, THAT THE DIVESTITURE AND
ANCILLARY INJUNCTIVE PROVISIONS REFERRED TO HEREAFTER WILL BE EFFECTIVE
TO ASSURE THAT HEREAFTER GENERAL MOTORS STOCK WILL BE HELD BY DU PONT
SOLELY FOR INVESTMENT.           *         *         *         *
* 

IN THE CIRCUMSTANCES, THEREFORE, THE COURT FINDS THAT THERE IS
NOTHING IN THE RECORD MADE IN THE HEARING ON RELIEF OR IN THE RECORD IN
THE TRIAL IN CHIEF WHICH WOULD SUPPORT, EVEN BY INFERENCE, THE
CONCLUSION THAT DU PONT'S POSSESSION OF THE BARE LEGAL TITLE TO GENERAL
MOTORS STOCK, STRIPPED OF ITS RIGHT TO VOTE AND OF ITS RIGHT TO
REPRESENTATION ON THE BOARD OF GENERAL MOTORS, WOULD CREATE ANY
POSSIBILITY THAT THE STOCK WOULD HAVE ANY INFLUENCE ON THE PRACTICES
AND POLICIES OF GENERAL MOTORS OR COULD BE USED IN ANY WAY THAT WOULD
BE INCONSISTENT WITH THE MANDATE OF THE SUPREME COURT."  177 F. SUPP.,
AT 41. 

WHAT WAS ON THE OTHER SIDE OF THE LEDGER?  THE EVIDENCE INDICATED
THAT DIVESTITURE OF LEGAL TITLE WOULD VISIT UPON THOUSANDS OF INNOCENT
INVESTORS ADVERSE TAX AND MARKET CONSEQUENCES, ALWAYS SEVERE EVEN IF
VARYING IN DETAIL DEPENDING ON THE VARIATION OF THE GOVERNMENT'S PLAN. 
THE COURT CONCLUDED THAT ANY PLAN FOR DIVESTITURE OF LEGAL TITLE TO DU
PONT'S INTEREST IN GENERAL MOTORS WOULD EITHER IMPAIR THE VALUE OF THE
PROPERTY INTERESTS INVOLVED OR IMPOSE SEVERE TAX CONSEQUENCES ON DU
PONT'S STOCKHOLDERS.  MOREOVER, ANY PLAN THAT PRODUCED AS A BY-PRODUCT
THE ACCUMULATION OF VAST AMOUNTS OF CASH BY DU PONT WOULD HAVE THE
UNDESIRABLE RESULT OF ENHANCING GREATLY DU PONT'S ECONOMIC POWER AND
POSITION.  ALL THIS LED THE COURT TO HOLD THAT TOTAL DIVESTITURE, WHILE
UNNECESSARY TO REMOVE THE ANTICOMPETITIVE CONSEQUENCES OF DU PONT'S
OWNERSHIP OF THE GENERAL MOTORS STOCK, WOULD IMPOSE UNFAIR INJURY ON
THE STOCKHOLDERS OF THOSE COMPANIES. 

THE COURT DEALT WITH THE GOVERNMENT'S TWO OBJECTIONS TO ITS RESULT. 
THE FEAR THAT BLOCK VOTING OF THE PASSED-THROUGH VOTES ON THE GENERAL
MOTORS SHARES BY INVESTORS WHO WERE RELATED BY BLOOD OR BUSINESS
INTEREST WOULD LEAVE CONTROL OF GENERAL MOTORS IN THE HANDS OF DU
PONT'S CLOSE ASSOCIATES WAS MET BY PRECLUDING THE STOCKHOLDERS OF
CHRISTIANA AND DELAWARE, AS WELL AS OTHER SPECIFIED PERSONS, FROM
VOTING THEIR ALLOCABLE SHARES OF DU PONT'S GENERAL MOTORS STOCK.  THE
OBJECTION THAT RETENTION BY DU PONT OF ANY FINANCIAL STAKE IN GENERAL
MOTORS, EVEN ON BEHALF OF ITS STOCKHOLDERS, WOULD PROVIDE INCENTIVE TO
INTERCORPORATE FAVORITISM BETWEEN THE TWO, WHILE DEEMED MERELY A "NAKED
SUGGESTION," WAS ANSWERED BY PROVIDING SPECIFIC RELIEF AGAINST
PREFERENTIAL TRADE RELATIONS BETWEEN DU PONT AND GENERAL MOTORS.  IN
LIGHT OF THE PROOF AND OF THESE PRECAUTIONARY PROHIBITIONS, THE COURT
CONCLUDED THAT TO ORDER DIVESTITURE OF DU PONT'S TITLE TO THE GENERAL
MOTORS STOCK WOULD "CONSTITUTE A SERIOUS ABUSE OF DISCRETION."  177 F.
SUPP., AT 49.  (FN6)

     IV. 

THE QUESTIONS PRESENTED BY THIS APPEAL MUST BE CONSIDERED IN THE
SETTING OF THE PROCEEDINGS, SUMMARIZED ABOVE, THAT LED TO THE DISTRICT
COURT'S CONCLUSIONS IN FORMULATING ITS DECREE.  SINCE THE COURT REJECTS
THE GOVERNMENT'S CLAIM THAT TOTAL DIVESTITURE IS STATUTORILY REQUIRED
UPON A FINDING OF A VIOLATION OF SEC. 7 OF THE CLAYTON ACT, I NEED SAY
NO MORE ABOUT IT. 

IF A DISTRICT COURT IS NOT SUBJECT TO ANY STATUTORY REQUIREMENT TO
ORDER DIVESTITURE IN A SEC. 7 CASE, IT IS LEFT WITHOUT GUIDANCE OR
DIRECTION IN FASHIONING AN APPROPRIATE DECREE AS A COURT OF EQUITY?  OF
COURSE NOT.  THERE IS A BODY OF AUTHORITY, BOTH PROCEDURAL AND
SUBSTANTIVE, BY WHICH IT IS TO BE GUIDED.  IT IS, HOWEVER, WELL TO
REMEMBER THAT THE WISE ADMONITION THAT GENERAL PRINCIPLES DO NOT DECIDE
CONCRETE CASES HAS SHARP APPLICABILITY TO EQUITY DECREES.  ANY
APPARENTLY APPLICABLE POLICY OR RULE, ABSTRACTLY STATED, MUST BE
RELATED TO THE SPECIFIC CIRCUMSTANCES OF A PARTICULAR CASE IN WHICH IT
IS INVOKED AND APPLIED.  CARE MUST BE TAKEN TO CONSIDER PHRASES USED IN
RELATION TO THE PARTICULAR FACTS OF THE CASES RELIED ON. 

ONE PRINCIPLE HAS COMPREHENSIVE APPLICATION.  IT IS THAT COURTS OF
EQUITY, AS THIS COURT ADVISED THE DISTRICT COURT IN REMANDING THE CASE
TO IT TO FASHION THE APPROPRIATE RELIEF, "ARE CLOTHED 'WITH LARGE
DISCRETION TO MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE
PARTICULAR CASE.'"  353 U.S., AT 607-608.  THIS IS A COMMONPLACE, (FN7)
BUT ONE OF COMPELLINNG IMPORTANCE.  TO FORGET IT IS TO FORGET EQUITY'S
SPECIAL FUNCTION AND HISTORIC SIGNIFICANCE.  THE TRANSCENDENCE OF THIS
DOCTRINE DERIVES FROM THE RECOGNITION THAT WITHOUT IT THE EFFORT TO
DISPENSE EQUAL JUSTICE UNDER LAW WOULD ALL TOO OFTEN BE FRUSTRATED. 
THE LANDMARK SENTENCES OF HECHT CO. V. BOWLES, 321 U.S. 321, 329-330,
EXPRESS THE PRINCIPLES THAT MUST GUIDE THE CHANCELLOR: 

"WE ARE DEALING HERE WITH THE REQUIREMENTS OF EQUITY PRACTICE WITH A
BACKGROUND OF SEVERAL HUNDRED YEARS OF HISTORY  ...  .  THE ESSENCE OF
EQUITY JURISDICTION HAS BEEN THE POWER OF THE CHANCELLOR TO DO EQUITY
AND TO MOULD EACH DECREE TO THE NECESSITIES OF THE PARTICULAR CASE. 
FLEXIBILITY RATHER THAN RIGIDITY HAS DISTINGUISHED IT.  THE QUALITIES
OF MERCY AND PRACTICALITY HAVE MADE EQUITY THE INSTRUMENT FOR NICE
ADJUSTMENT AND RECONCILIATION BETWEEN THE PUBLIC INTEREST AND PRIVATE
NEEDS AS WELL AS BETWEEN COMPETING PRIVATE CLAIMS  ...  ." 

IF, INDEED, EQUITY'S CHARACTERISTIC FLEXIBILITY IS DEEPLY ROOTED IN
HISTORY, THE ADMINISTRATION OF JUSTICE MAKES GREATER DEMANDS UPON IT
NOW THAN EVER BEFORE.  AS BUSINESS TRANSACTIONS BECOME INCREASINGLY
COMPLEX, THEY MULTIPLY AND COMPLICATE THE ISSUES PRESENTED TO COURTS
EVEN IN LITIGATION OF ORDINARY DIMENSIONS.  HOW MUCH MORE IS THIS TRUE
OF A SUIT OF THE MAGNITUDE AND REACH OF THE ONE BEFORE US, WITH
INEVITABLE IMPACT FAR BEYOND THE INTERESTS OF THE IMMEDIATE PARTIES. 
IN SUCH A CASE WE NEED TO BE SPECIALLY MINDFUL THAT THE PURPOSE OF
EQUITY JURISDICTION IS TO ADAPT FAMILIAR PRINCIPLES OF LAW TO
INTRICATE, ELUSIVE, AND UNFAMILIAR FACTS.  AS ONE MEMBER OF THIS COURT
RECENTLY PUT IT:  "EQUITY DECREES ARE NOT LIKE THE PACKAGED GOODS THIS
MACHINE AGE PRODUCES.  THEY ARE UNIFORM ONLY IN THAT THEY SEEK TO DO
EQUITY IN A GIVEN CASE."  UNITED STEELWORKERS OF AMERICAN V. UNITED
STATES, 361 U.S. 39, 62, 71 (DISSENTING OPINION).  (FN8) 

THE DISTRICT COURT WAS DUTY BOUND TO EXERCISE DISCRETION - WHICH
MEANS TO WEIGH CONTENDING CONSIDERATIONS AND CONFLICTING EVIDENCE AS A
MATTER OF JUDGMENT - IN FRAMING A DECREE TO MEET THE NEEDS OF THE
CASE.  IT COULD NOT ESCAPE EXERCISING DISCRETION - THAT IS, EXERCISING
ITS JUDGMENT WITHIN AN AREA OF ALLOWABLE CHOICE - WHICH THIS COURT
COMMITTED TO IT.  DISCRETION PRECLUDES WHIMSY OR CAPRICE.  DISCRETION
MEANS THE JUDICIAL DISCRETION OF A COURT OF EQUITY.  WHERE PRECEDENT OR
JUDICIAL TRADITION HAS ESTABLISHED LIMITATIONS ON THE CHANCELLOR'S
RANGE OF CHOICE, HE MUST RESPECT THEM.  WHAT LIMITATIONS CONFINED THE
COURT BELOW?  CONSIDERATION OF THE RELEVANT AUTHORITIES ON THE
FORMULATION OF ANTITRUST DECREES BECOMES NECESSARY. 

FIRST, WHAT WAS OPEN TO CONSIDERATION IN THE DISTRICT COURT?  ITS
OVERRIDING CONCERN HAD TO BE FOR THE PROTECTION OF THE PUBLIC
INTEREST.  IT WAS ITS DUTY TO HEAR ALL THE EVIDENCE BEARING ON THAT
QUESTION AND IN ANY CONFLICT WITH PRIVATE INTERESTS DECISIVELY TO
RESOLVE DOUBTS IN FAVOR OF THE GENERAL WELFARE.  THE ACCOUNT OF THE
DISTRICT COURT'S PROCEDURES, AND OF THE CONSIDERATIONS ON WHICH IT
REACHED ITS REFLECTIVE CONCLUSIONS, IN PARTS II AND III OF THIS OPINION
ESTABLISHES, I SUBMIT, THAT IT FULLY CONFORMED TO THIS ESSENTIAL
REQUIREMENT.  ALTHOUGH IT CONSIDERED THE GOVERNMENT'S CASE ON THE
LIKELIHOOD OF BLOCK VOTING OF THE VOTES OF THE GENERAL MOTORS SHARES
PASSED THROUGH TO DELAWARE AND CHRISTIANA OF DOUBTFUL STRENGTH, IT
STERILIZED THOSE SHARES TO PREVENT THEIR BEING VOTED AT ALL.  AGAIN,
ALTHOUGH IT FOUND NO PROOF IN THE RECORD TO SUPPORT THE GOVERNMENT'S
"NAKED SUGGESTION" CONCERNING THE PROBABILITY OF FUTURE PREFERENTIAL
TRADE RELATIONS BETWEEN GENERAL MOTORS AND DU PONT, IT CONSTRUCTED A
SET OF PROHIBITIONS AGAINST SUCH DEALING BETWEEN THE TWO ENTERPRISES. 
AS ALREADY NOTED, THE COURT FASHIONED ITS DECREE IN DEFERENCE TO ITS
CONCEPTION OF ITS "PRIMARY DUTY" TO DEVISE A JUDGMENT "THAT WILL
EFFECTIVELY GUARD AGAINST THE PROBABILITY OF RESTRAINT OR
MONOPOLIZATION WHICH THE SUPREME COURT FOUND TO EXIST."  177 F. SUPP.,
AT 13. 

DID THE DISTRICT COURT FAIL IN ITS DUTY BECAUSE IT DEEMED RELEVANT
FOR CONSIDERATION AS ONE FACTOR IN STRIKING THE BALANCE INVOLVED IN ITS
CONCLUSION THE CONSEQUENCES OF DIVESTITURE TO THOUSANDS UPON THOUSANDS
OF BLAMELESS STOCKHOLDERS AND OTHER SO-CALLED PRIVATE INTERESTS?  THE
DECISIONS OF THIS COURT GAVE FULL WARRANT TO THE DISTRICT COURT THAT IT
DID NOT EXCEED ITS DISCRETIONARY POWERS IN DOING SO.  THE WEIGHTY WORDS
OF UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 185, ARE
APPOSITE: 

"IN CONSIDERING THE SUBJECT  ...  THREE DOMINANT INFLUENCES MUST
GUIDE OUR ACTION:  1.  THE DUTY OF GIVING COMPLETE AND EFFICACIOUS
EFFECT TO THE PROHIBITIONS OF THE STATUTE; 2, THE ACCOMPLISHING OF THIS
RESULT WITH AS LITTLE INJURY AS POSSIBLE TO THE INTEREST OF THE GENERAL
PUBLIC; AND, 3, A PROPER REGARD FOR THE VAST INTERESTS OF PRIVATE
PROPERTY WHICH MAY HAVE BECOME VESTED IN MANY PERSONS AS A RESULT OF
THE ACQUISITION EITHER BY WAY OF STOCK OWNERSHIP OR OTHERWISE OF
INTERESTS IN THE STOCK OR SECURITIES OF THE COMBINATION WITHOUT ANY
GUILTY KNOWLEDGE OR INTENT IN ANY WAY TO BECOME ACTORS OR PARTICIPANTS
IN THE WRONGS WHICH WE FIND TO HAVE INSPIRED AND DOMINATED THE
COMBINATION FROM THE BEGINNING  ...  ." 

AND IN STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 78, THE COURT
ADMONISHED THAT "THE FACT MUST NOT BE OVERLOOKED THAT INJURY TO THE
PUBLIC BY THE PREVENTION OF AN UNDUE RESTRAINT ON, OR THE
MONOPOLIZATION OF TRADE OR COMMERCE IS THE FOUNDATION UPON WHICH THE
PROHIBITIONS OF THE STATUTE REST, AND MOREOVER THAT ONE OF THE
FUNDAMENTAL PURPOSES OF THE STATUTE IS TO PROTECT, NOT TO DESTROY,
RIGHTS OF PROPERTY."  THE IMPORTANCE OF THESE CONSIDERATIONS WAS
REITERATED IN CONTINENTAL INS. CO. V. UNITED STATES, 259 U.S. 156, WITH
THE GOVERNMENT ACTIVELY CHAMPIONING THEIR PROPRIETY, AND SUGGESTING
THAT "'IT SEEMED WISE NOT TO AMPUTATE ANY MORE THAN WAS NECESSARY TO
SECURE THE GREAT POLICY OF THE SHERMAN LAW.'"  259 U.S., AT 169.  IN
UNITED STATES V. UNITED SHOE MACHINERY CO., 247 U.S. 32, 46, THE COURT
LABELED DISSOLUTION A REMEDY "EXTREME, EVEN IN ITS MILDEST DEMANDS" AND
COUNSELED "IF THERE BE NEED FOR THIS THE DIFFICULTIES OF ACHIEVEMENT
SHOULD NOT DETER; BUT THE DIFFICULTIES MAY ADMONISH AGAINST THE NEED
...  ."  THIS HOLDS FOR DIVESTITURE.  (FN9) 

THIS COURT'S DECISIONS LEAVE NO DOUBT THAT IT WAS PROPER FOR THE
DISTRICT COURT TO ATTEND TO THE LIKELIHOOD OF DANGER TO THE PUBLIC
WELFARE THAT MIGHT ARISE FROM THE SERIOUS ADVERSE MARKET CONSEQUENCES
OF DIVESTITURE AND TO THE LIKELIHOOD OF EXTENSIVE LOSS TO INNOCENT
INVESTORS THROUGH BOTH MARKET DECLINE AND TAX LEVY.  IT IS APPARENT
THAT THE DEPARTMENT OF JUSTICE RECOGNIZED THE RELEVANCE OF THE TAX
IMPACT.  IN A STATEMENT ON PROPOSED LEGISLATION TO ALLEVIATE THE TAX
BURDEN OF DIVESTITURE DECREES, ROBERT A. BICKS, THEN ACTING ASSISTANT
ATTORNEY GENERAL IN CHARGE OF THE ANTITRUST DIVISION OF THE JUSTICE
DEPARTMENT, SAID: 

"BEAR IN MIND, THE 1890 SHERMAN AND THE 1914 CLAYTON ACTS, THE BASIC
ANTITRUST STATUTES, BECAME LAW BEFORE THE INCOME TAX WAS A REALITY. 
AND THE LANDMARK ANTITRUST CASES - DISSOLVING ILLEGAL TRUSTS AND
MONOPOLIES VIA DIVESTITURE - WERE LARGELY A PRODUCT OF AN ERA MARKED BY
NO INCOME TAX OR MUCH LOWER TAX RATES.  INDEED, THERE IS REAL BASIS FOR
CONCLUDING THAT SOME BENCH-MARK ANTITRUST DIVESTITURE CASES  ...  MIGHT
WELL NOT HAVE BEEN DECREED HAD TODAY'S TAX RATES PREVAILED."  BICKS,
STATEMENT ON H.R. 7361 AND H.R. 8126 BEFORE THE HOUSE COMMITTEE ON WAYS
AND MEANS, JULY 20, 1959, 4 ANTITRUST BULLETIN 557 (1959). 

IT IS OBVIOUS FROM THE CONTEXT OF THESE REMAKRS THAT THEIR IMMEDIATE
OBJECTIVE WAS TO SMOOTH THE WAY TOWARD OBTAINING DIVESTITURE IN THIS
VERY CASE.  (FN10) 

IN A CASE SUCH AS DU PONT, IN WHICH THE CHALLENGED TRANSACTION
OCCURRED APPROXIMATELY THIRTY YEARS PRIOR TO THE INITIATION OF SUIT,
THE FORCE OF THESE CONSIDERATIONS IS GREATLY ENHANCED.  THE
RELATIONSHIP BETWEEN GENERAL MOTORS AND DU PONT STOOD UNCONDEMNED BY
THE GOVERNMENT THROUGH SUCCESSIVE ADMINISTRATIONS THROUGHOUT THAT
PERIOD.  THIS IS NOT REMOTELY TO HINT ANY FORM OF ESTOPPEL AGAINST
RESORT TO DIVESTITURE AS RELIEF FOR THE ILLEGALITY, HOWEVER BELATEDLY
ESTABLISHED, WERE IT OTHERWISE THE REQUIRED MEANS FOR CORRECTION OF
PAST MISCONDUCT OR ITS FUTURE AVOIDANCE.  I DO MAINTAIN THAT, AS THIS
COURT HAS RECOGNIZED, IT WAS ALTOGETHER PROPER FOR THE DISTRICT COURT -
EVEN INCUMBENT UPON IT - TO TAKE "ACCOUNT OF WHAT WAS DONE DURING THAT
TIME - THE MANY MILLIONS OF DOLLARS SPENT, THE DEVELOPMENTS MADE, AND
THE ENTERPRISES UNDERTAKEN, THE INVESTMENTS BY THE PUBLIC THAT HAVE
BEEN INVITED AND ARE NOT TO BE IGNORED."  UNITED STATES V. UNITED
STATES STEEL CORP., 251 U.S. 417, 453. 

IN SHORT, THE FACTORS THAT INFLUENCED THE DISTRICT COURT WERE FIT
CONSIDERATIONS FOR JUDICIAL SCRUTINY.  BUT WE STILL HAVE TO INQUIRE
WHAT CRITERIA WERE OPEN TO THE DISTRICT COURT FOR APPRAISING THE
RELEVANT VARIABLES AND HOW THAT COURT'S DETERMINATIONS ARE TO BE
REVIEWED BY THIS COURT. 

THE VERY FOUNDATION FOR JUDGMENT IN REVIEWING A DISTRICT COURT'S
DECREE IN A CASE LIKE THIS IS THE INHERENT NATURE OF ITS TASK IN
ADJUDICATING CLAIMS ARISING UNDER THE ANTITRUST LAWS.  THE SWEEPING
GENERALITY OF THE ANTITRUST LAWS DIFFERENTIATES THEM FROM ORDINARY
STATUTES.  "AS A CHARTER OF FREEDOM," WROTE MR. CHIEF JUSTICE HUGHES
FOR THE COURT, "THE SHERMAN ACT HAS A GENERALITY AND ADAPTABILITY
COMPARABLE TO THAT FOUND TO BE DESIRABLE IN CONSTITUTIONAL
PROVISIONS."  APPALACHIAN COALS, INC., V. UNITED STATES, 288 U.S. 344,
359-360.  THIS IS NO LESS TRUE OF THE CLAYTON ACT'S PROHIBITION "WHERE
THE EFFECT  ...  MAY BE TO SUBSTANTIALLY LESSEN COMPETITION." 
CORRESPONDINGLY BROAD IS THE AREA WITHIN WHICH A DISTRICT COURT MUST
MOVE TO FIT THE REMEDY TO THE RANGE OF THE OUTLAWRY.  FAR-REACHING
RESPONSIBILITY IS VESTED IN THE COURT CHARGED WITH FASHIONING A DECREE
AND THE DECREE IT FASHIONS MUST BE JUDGED ON REVIEW IN LIGHT OF THIS
RESPONSIBILITY.    "IN THE ANTI-TRUST FIELD THE COURTS HAVE BEEN
ACCORDED, BY COMMON CONSENT, AN AUTHORITY THEY HAVE IN NO OTHER BRANCH
OF ENACTED LAW  ...  .  THEY WOULD NOT HAVE BEEN GIVEN, OR ALLOWED TO
KEEP, SUCH AUTHORITY IN THE ANTI-TRUST FIELD, AND THEY WOULD NOT SO
FREELY HAVE ALTERED FROM TIME TO TIME THE INTERPRETATION OF ITS
SUBSTANTIVE PROVISIONS, IF COURTS WERE IN THE HABIT OF PROCEEDING WITH
THE SURGICAL RUTHLESSNESS THAT MIGHT COMMEND ITSELF TO THOSE SEEKING
ABSOLUTE ASSURANCE THAT THERE WILL BE WORKABLE COMPETITION, AND TO
THOSE AIMING AT IMMEDIATE REALIZATION OF THE SOCIAL, POLITICAL, AND
ECONOMIC ADVANTAGES OF DISPERSAL OF POWER."  UNITED STATES V. UNITED
SHOE MACHINERY CORP., 110 F. SUPP. 295, 348 (A DECISION AFFIRMED BY
THIS COURT WITHOUT OPINION, 347 U.S. 521). 

PARTLY ON THE BASIS OF THESE VIEWS, THE ATTORNEY GENERAL'S NATIONAL
COMMITTEE TO STUDY THE ANTITRUST LAWS RECOMMENDED THAT DIVESTITURE "NOT
BE DECREED AS A PENALTY," THAT IS "NOT BE INVOKED WHERE LESS DRASTIC
REMEDIES WILL ACCOMPLISH THE PURPOSE OF THE LITIGATION," AND THAT
POSSIBLE DISRUPTION OF INDUSTRY AND MARKETS AS WELL AS EFFECT ON THE
PUBLIC, INVESTORS, CUSTOMERS, AND EMPLOYEES BE TAKEN INTO ACCOUNT. 
REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE
ANTITRUST LAWS (1955), PP. 355-356.  THIS STATEMENT FAIRLY REFLECTS THE
VIEWS OF THIS COURT, TO THE EFFECT THAT A DECREE MUST NOT "IMPOSE
PENALTIES IN THE GUISE OF PREVENTING FUTURE VIOLATIONS," HARTFORD
EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 409; THAT THE LEAST HARSH OF
AVAILABLE MEASURES SHOULD BE ADOPTED WHEN THE COURT IS SATISFIED THAT
THEY WILL BE EFFECTIVE, E.G., TIMKEN ROLLER BEARING CO. V. UNITED
STATES, 341 U.S. 593, 603 (CONCURRING OPINION); AND THAT INJUNCTIVE
RELIEF MAY WELL BE AN ADEQUATE SANCTION AGAINST CONTINUED WRONGDOING,
ID., AT 604 (CONCURRING OPINION), AND STANDARD OIL CO. V. UNITED
STATES, 221 U.S. 1, 77.  ADD TO THIS THAT WE HAVE RECOGNIZED A SOUND
BASIS IN REASON FOR DISTINGUISHING PALPABLY ILLEGAL ACTIVITY FROM
CONDUCT THAT WAS ARGUABLY PERMISSIBLE, AND FOR DEALING WITH THE LATTER
LESS SEVERELY THAN THE FORMER.  SEE FEDERAL TRADE COMM'N V. NATIONAL
LEAD CO., 352 U.S. 419, 429; UNITED STATES V. UNITED STATES GYPSUM CO.,
340 U.S. 76, 89-90. 

THE PRINCIPLES THUS PRONOUNCED BY THIS COURT WERE DULY HEEDED BY THE
DISTRICT COURT.  THE SALIENT FEATURE OF ITS ATTITUDE WAS ITS
DISPOSITION TO FAVOR THE GOVERNMENT'S CLAIMS ON BEHALF OF THE PUBLIC
INTEREST.  IT EVEN REJECTED THE DEFENDANTS' ARGUMENT, BASED ON NATIONAL
LEAD AND GYPSUM, SUPRA, (FN11) THAT IT SHOULD TAKE INTO ACCOUNT THAT
THE QUESTION WHETHER THE ACQUISITION VIOLATED THE LAW WAS, TO SAY THE
LEAST, REASONABLY IN DOUBT, AND THAT THEREFORE NO BLAME SHOULD BE
IMPUTED TO THE OFFICERS AND DIRECTORS OF THE DEFENDANTS.  "THE COURT
...  APPROACHES THE PROBLEM ON THE ASSUMPTION THAT THE APPROPRIATE
RELIEF IS THAT WHICH IS NECESSARY TO ELIMINATE THE EFFECTS OF THE
ACQUISITION OFFENSIVE TO THE STATUTE, NOTWITHSTANDING THAT THE
ACQUISITION MIGHT REASONABLY HAVE BEEN BELIEVED TO BE PERMISSIBLE WHEN
MADE."  177 F. SUPP., AT 14. 

THE GOVERNMENT URGES, HOWEVER, THAT DIVESTITURE IS, IF NOT THE
REQUIRED RELIEF, AT LEAST THE NORMAL AND ORDINARY RELIEF IN STOCK
ACQUISITION CASES.  THE CONTENTION IS THAT, AS THE SAFEST REMEDY, I.E.,
THE SUREST OF ANTICOMPETITIVE RESULTS, DIVESTITURE IS, AND HAS BEEN
CONSIDERED TO BE, THE PREFERRED RELIEF FOR ALL SAVE A FEW EXCEPTIONAL
CASES.  SUPPORT FOR THIS VIEW IS DRAWN FROM A LONG LINE OF CASES IN
WHICH DIVESTITURE HAS BEEN DECREED.  THE CONTENTION CALLS FOR DETAILED
SCRUTINY. 

THE OBJECTIVES OF DIVESTITURE WERE THUS STATED IN SCHINE CHAIN
THEATRES, INC., V. UNITED STATES, 334 U.S. 110, 128-129: 

"DIVESTITURE OR DISSOLUTION MUST TAKE ACCOUNT OF THE PRESENT AND
FUTURE CONDITIONS IN THE PARTICULAR INDUSTRY AS WELL AS PAST
VIOLATIONS.  IT SERVES SEVERAL FUNCTIONS:  (1) IT PUTS AN END TO THE
COMBINATION OR CONSPIRACY WHEN THAT IS ITSELF THE VIOLATION.  (2) IT
DEPRIVES THE ANTITRUST DEFENDANTS OF THE BENEFITS OF THEIR CONSPIRACY. 
(3) IT IS DESIGNED TO BREAK UP OR RENDER IMPOTENT THE MONOPOLY POWER
WHICH VIOLATES THE ACT  ...  ."  (FN12) 

THIS TRIPARTITE FORMULATION SUMMARIZES THE CONSIDERATIONS THAT HAVE
GUIDED THIS COURT'S RULINGS ON DIVESTITURE.  IN STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, THE SOURCE OF MODERN ANTITRUST LAW, THE
DEFENDANTS WERE CHARGED WITH COMBINATION AND CONSPIRACY TO RESTRAIN
TRADE IN AND MONOPOLIZE INTERSTATE AND FOREIGN COMMERCE IN PETROLEUM
PRODUCTS, IN VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN ACT.  THE LOWER
COURT FOUND BOTH PROVISIONS OFFENDED BY A COMBINATION OF SEVEN
INDIVIDUAL DEFENDANTS AND THIRTY-EIGHT CORPORATE DEFENDANTS TO LODGE IN
THE STANDARD OIL CO. OF NEW JERSEY SUBSTANTIAL STOCK OWNERSHIP OF AND
CONTROL OVER MANY SUBSIDIARY CORPORATIONS IN THE PETROLEUM INDUSTRY AND
TO CAUSE STANDARD OIL TO MANAGE THEIR AFFAIRS SO AS TO THROTTLE
COMPETITION, FINDINGS SUSTAINED HERE.  COMING TO THE PROBLEM OF REMEDY,
WHILE ACKNOWLEDGING THAT "ORDINARILY" INJUNCTIVE RELIEF WOULD BE
ADEQUATE TO RESTRAIN REPETITION OF THE ILLEGAL ACTIVITY, THE COURT
FOUND THAT THE SITUATION PRESENTED BY THE STANDARD OIL AGGRANDIZEMENT
CALLED FOR STIFFER MEASURES:  "BUT IN A CASE LIKE THIS, WHERE THE
CONDITION WHICH HAS BEEN BROUGHT ABOUT IN VIOLATION OF THE STATUTE, IN
AND OF ITSELF, IS NOT ONLY A CONTINUED ATTEMPT TO MONOPOLIZE, BUT ALSO
A MONOPOLIZATION, THE DUTY TO ENFORCE THE STATUTE REQUIRES THE
APPLICATION OF BROADER AND MORE CONTROLLING REMEDIES."  221 U.S., AT
77.  RECOGNITION OF THIS NEED - THAT INTERCORPORATE CONNECTIONS CALL
FOR SEVERANCE WHEN PERSISTENCE OF THE RELATIONSHIP IN ITSELF WOULD
CONSTITUTE A VIOLATION OF THE ANTITRUST LAWS - HAS BEEN STEADFASTLY
ADHERED TO.  "DISSOLUTION OF THE COMBINATION WILL BE ORDERED WHERE THE
CREATION OF THE COMBINATION IS ITSELF THE VIOLATION."  UNITED STATES V.
CRESCENT AMUSEMENT CO., 323 U.S. 173, 189.  IT HAS BEEN THE CONTROLLING
FACTOR IN THE MAJORITY OF THE DIVESTITURE DECREES IN THE INTERVENING
YEARS, SINCE MOST SITUATIONS BEFORE THE COURT HAVE SIMILARLY DEMANDED
THIS RELIEF.  (FN13) 

THE SECOND ELEMENT OF THE SCHINE RATIONALE - DEPRIVING ANTITRUST
DEFENDANTS "OF THE BENEFITS OF THEIR CONSPIRACY" - IS EQUALLY WELL
ESTABLISHED.  UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173,
WAS A SHERMAN ACT SUIT IN WHICH CERTAIN MOTION PICTURE EXHIBITORS WERE
FOUND TO HAVE USED THEIR COMBINED BUYING POWER TO OBTAIN TERMS MORE
FAVORABLE THAN THOSE RECEIVED BY THEIR INDEPENDENT COMPETITORS IN
LICENSING FILMS, WHEREBY INDEPENDENTS WERE DRIVEN FROM THE FIELD AND A
MONOPOLY IN THEATER OPERATION DEVELOPED IN MANY TOWNS.  EACH CORPORATE
EXHIBITOR WAS REQUIRED TO DIVEST ITSELF OF ITS INTEREST IN ANY OTHER
CORPORATE DEFENDANT OR ITS AFFILIATES. 

"THOSE WHO VIOLATE THE ACT MAY NOT REAP THE BENEFITS OF THEIR
VIOLATIONS AND AVOID AN UNDOING OF THEIR UNLAWFUL PROJECT ON THE PLEA
OF HARDSHIP OR INCONVENIENCE.  THAT PRINCIPLE IS ADEQUATE HERE TO
JUSTIFY DIVESTITURE OF ALL INTEREST IN SOME OF THE AFFILIATES SINCE
THEIR ACQUISITION WAS PART OF THE FRUITS OF THE CONSPIRACY."  323 U.S.,
AT 189.  (FN14) 

THE THIRD SCHINE OBJECTIVE OF DIVESTITURE WAS "TO BREAK UP OR RENDER
IMPOTENT THE MONOPOLY POWER WHICH VIOLATES THE ACT."  THE ROLE OF
DIVESTITURE IN MEETING THIS NEED WAS SPELLED OUT IN THE CRESCENT CASE: 

"COMMON CONTROL WAS ONE OF THE INSTRUMENTS IN BRINGING ABOUT UNITY OF
PURPOSE AND UNITY OF ACTION AND IN MAKING THE CONSPIRACY EFFECTIVE.  IF
THAT AFFILIATION CONTINUES, THERE WILL BE TEMPTING OPPORTUNITY FOR
THESE EXHIBITORS TO CONTINUE TO ACT IN COMBINATION AGAINST THE
INDEPENDENTS.  THE PROCLIVITY IN THE PAST TO USE THAT AFFILIATION FOR
AN UNLAWFUL END WARRANTS EFFECTIVE ASSURANCE THAT NO SUCH OPPORTUNITY
WILL BE AVAILABLE IN THE FUTURE  ...  ."  323 U.S., AT 189-190. 

THESE, THEN, ARE THE JUSTIFIABLE BASES FOR COMPELLING DIVESTITURE. 
THEY EXPLAIN AND DEFINE THE AUTHORITIES ON WHICH THE GOVERNMENT
RELIES.  DO THEY, OR ANY OF THEM, INVALIDATE THE DISTRICT COURT'S
REFUSAL TO DECREE DIVESTITURE IN THE CIRCUMSTANCES OF THIS CASE AND
JUSTIFY THIS COURT IN OVERRULING THAT COURT'S EXERCISE OF DISCRETION IN
FINDING DIVESTITURE UNCALLED FOR? 

THE NOTION THAT THE VERY EXISTENCE OF AN INTEREST BY DU PONT IN THE
STOCK OF GENERAL MOTORS CONSTITUTES A VIOLATION OF THE ACT NEED NOT
DETAIN US.  IT CANNOT BE QUESTIONED THAT, AS THE COURT'S OPINION ON THE
MERITS IN THIS CASE MAKES CLEAR, THE VIOLATION CONDEMNED IS THE EFFECT
OF THE STOCKHOLDING ON COMPETITION, NOT THE STOCKHOLDING AS SUCH. 
(FN15)  TO BE SURE, THIS ILLEGAL TENDENCY TO LESSEN COMPETITION MAY BE
ENDED BY TERMINATING ANY INTERCORPORATE RELATIONSHIP.  BUT JUST AS
SURELY THE UNLAWFULNESS OF THE TENDENTIOUS STOCKHOLDING MAY BE ENDED BY
PREVENTING ITS HARMFUL CONSEQUENCES. 

NOR IS DIVESTITURE REQUIRED AS A MEANS OF DEPRIVING THE DEFENDANT OF
THE FRUITS OF ITS VIOLATION.  WHILE DU PONT'S INTEREST IN GENERAL
MOTORS MIGHT SERVE AS A TOOL FOR THE ACCOMPLISHMENT OF ANTITRUST
VIOLATIONS, IT IS CERTAINLY NOT THE FRUIT OF ANY SUCH VIOLATION.  THE
FRUIT - THE BENEFIT - OF A VIOLATION OF SEC. 7 IS THE UNFAIR
COMPETITIVE POSITION OF ONE CORPORATION THROUGH ITS STOCK INTEREST IN
ANOTHER.  EFFECTIVE TERMINATION OF THIS COMPETITIVE ADVANTAGE WAS
PRECISELY THE DESIGN OF THE ELABORATE INJUNCTIVE PROVISIONS DEVISED BY
THE DISTRICT COURT. 

THE FINAL DESIDERATUM - VITIATING A MONOPOLY POWER - IS NOT LITERALLY
APPLICABLE TO THE DU PONT SITUATION, SINCE THE DISTRICT COURT DISMISSED
THE MONOPOLY CHARGE UNDER THE SHERMAN ACT AND THIS COURT REFUSED TO
REVIEW THE DISMISSAL.  353 U.S., AT 588, N. 5.  BUT EVEN IF THIS
CRITERION WERE CARRIED OVER INTO A CLAYTON ACT SETTING TO ENFORCE THE
DESIRABILITY OF AVOIDING EVERY POTENTIALITY OF MONOPOLY POWER, THERE IS
NO COMPULSION TO DECREE DIVESTITURE.  SUCH ARGUMENTATIVE POWER DOES NOT
PRECLUDE RESTRAINTS, BY INJUNCTIVE RELIEF, THAT RENDER IT "IMPOTENT,"
TO USE THE LANGUAGE OF THE SCHINE CASE.  NOR IS THERE IN THE RECORD
BEFORE US ANY BASIS IN FACT FOR THE FEARS THAT HAVE EVOKED THE
APPLICATION OF THIS PRINCIPLE IN PREVIOUS DIVESTITURE CASES.  THERE IS
NO FINDING IN THIS CASE, AS THERE WERE IN CRESCENT AND SCHINE, OF A
DELIBERATE CONSPIRACY AIMED AT THE DESTRUCTION OF COMPETITION.  WE
CANNOT POINT IN THIS CASE, AS WE HAVE ON OCCASION IN THE PAST, TO ANY
BLATANTLY ANTICOMPETITIVE SCHEME.  SEE, E.G., UNITED STATES V. READING
CO., 253 U.S. 26, 59.  INSTEAD WE HAVE ONLY THE FINDING THAT "THERE IS
A REASONABLE PROBABILITY THAT THE ACQUISITION IS LIKELY TO RESULT IN
THE CONDEMNED RESTRAINTS," 353 U.S., AT 607, I.E., TO RESTRAIN
COMMERCE.  MOREOVER, THE COURT EXPLICITLY RULED EXECUTIVE MISCONDUCT
OUT OF THE CASE - "WITHOUT ANY DESIGN TO OVERREACH ANYONE, INCLUDING DU
PONT'S COMPETITORS."  353 U.S., AT 607. 

EVEN IN THE CRESCENT CASE, THE COURT VOICED ITS CONCERN FOR THE
FUTURE ONLY BY WAY OF SUPPORT FOR ITS CONCLUSION THAT THE DISTRICT
COURT'S SEVERANCE OF THE DEFENDANTS COULD NOT BE REVERSED FOR ABUSE OF
DISCRETION.  323 U.S, AT 190.  THE COURT SUSTAINED, RATHER THAN
OVERTURNED, THE LOWER COURT'S JUDGMENT.  TO INFER THAT THE COURT WOULD
HAVE FOUND AN ABUSE OF DISCRETION HAD THE DISTRICT COURT IN CRESCENT
LIMITED ITSELF TO A DECREE OF INJUNCTIVE RELIEF IS AN UNWARRANTED
ASSUMPTION.  BUT THE GOVERNMENT IN EFFECT DRAWS SUCH AN INFERENCE FOR
THE PURPOSE OF THIS CASE, EVEN THOUGH THE FACTS OF DU PONT'S VIOLATION
DO NOT FAINTLY RESEMBLE THE OFFENSE OF THE MOVIE EXHIBITORS IN
CRESCENT.  WHEN THE POWERFUL INTERESTS OF JAMES J. HILL AND J. PIERPONT
MORGAN COALESCE TO PLACE IN ONE CONTROLLING PARENT THE STOCK OF THE
GREAT NORTHERN AND NORTHERN PACIFIC RAILWAYS, NORTHERN SECURITIES CO.
V. UNITED STATES, 193 U.S. 197; WHEN THE STANDARD OIL CO. OR THE
AMERICAN TOBACCO CO. OBTAIN MONOPOLY POSITIONS IN THEIR VAST INDUSTRIAL
EMPIRES, SEE STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, AND UNITED
STATES V. AMERICAN TOBACCO CO., 221 U.S. 106; WHEN THE RAIL CARRIERS
CONTROLLING THE MEANS OF TRANSPORTATION OF ANTHRACITE COAL COMBINE TO
DESTROY A POTENTIAL COMPETITOR, UNITED STATES V. READING CO., 226 U.S.
324, THE FACTS DEMAND THE MAJOR SURGERY OF DIVESTITURE - DESTRUCTION OF
THE OFFENDING COMBINATIONS.  BUT TO HOLD THAT THE TREATMENT OF THESE
CONSCIOUS CONSPIRACIES TO RESTRAIN TRADE AND TO ACHIEVE MONOPOLY POWER
IS COMPELLING PRECEDENT FOR DETERMINING THE RELIEF NECESSARY AND
APPROPRIATE TO REMEDY THE ONLY WRONG JUDICIALLY FOUND BY THIS COURT
UNDER SEC. 7, IS TO TREAT SITUATIONS FLAGRANTLY DIFFERENT AS THOUGH
THEY WERE THE SAME.  SURELY THERE IS MERIT TO THE NOTION OF SHAPING THE
PUNISHMENT TO FIT THE CRIME, EVEN BEYOND THE PRECINCTS OF THE MIKADO'S
PALACE. 

THE GROUNDS THUS CANVASSED FURNISH THE RELEVANT CONSIDERATIONS FOR
THIS COURT'S REVIEW OF THE DISTRICT COURT'S DECREE.  THE OBVIOUS MUST
BE RESTATED.  WE DO NOT SIT TO DRAFT ANTITRUST DECREES DE NOVO.  THIS
IS A COURT OF APPEAL, NOT A TRIAL COURT.  WE DO NOT SEE THE WITNESSES,
SIFT THE EVIDENCE IN DETAIL, OR APPRAISE THE COURSE OF EXTENDED
ARGUMENT, SESSION AFTER SESSION, DAY AFTER DAY.  (A REVIEW OF PART III
OF THIS OPINION ABUNDANTLY SHOWS THE EXTENT TO WHICH THE DISTRICT
COURT'S APPRAISAL OF THE CREDIBILITY OF WITNESSES, ANALYSIS OF EXPERT
TESTIMONY, AND RECONCILIATION OF THE CLAIMS OF COUNSEL ENTERED INTO THE
PAINSTAKING PROCESS THAT LED TO THE COURT'S VIEWS ON COMPLICATED ISSUES
AND ULTIMATELY TO THE FORMULATION OF ITS DECREE.)  IN SHORT, THIS COURT
DOES NOT PARTAKE OF THE PROCEDURE AND IS NOT CHARGED WITH THE
RESPONSIBILITY DEMANDED OF THE COURT ENTRUSTED WITH THE TASK OF
DEVISING THE DETAILS OF A DECREE APPROPRIATE FOR THE GOVERNANCE OF A
VASTLY COMPLICATED SITUATION ARISING OUT OF UNIQUE CIRCUMSTANCES.  BY
ITS NATURE, THIS COURT, AS AN APPELLATE TRIBUNAL, LACKS THE MEANS - THE
PROCEDURAL FACILITIES - TO EVOLVE A DECREE IN A CASE LIKE THIS.  FOR
THESE REASONS THIS COURT SENT THIS CASE BACK TO THE DISTRICT COURT,
QUOTING IN PART (353 U.S., AT 608), WITHOUT SPECIFIC LIMITATION, THE
COMPREHENSIVELY GENERAL GUIDELINES OF AN EARLIER CASE:    "THE FRAMING
OF DECREES SHOULD TAKE PLACE IN THE DISTRICT RATHER THAN IN APPELLATE
COURTS.  THEY ARE INVESTED WITH LARGE DISCRETION TO MODEL THEIR
JUDGMENTS TO FIT THE EXIGENCIES OF THE PARTICULAR CASE."  INTERNATIONAL
SALT CO. V. UNITED STATES, 332 U.S. 392, 400-40L.  (FN16) 

TO TELL A TRIAL JUDGE THAT HE HAS DISCRETION IN CERTAIN MATTERS IS TO
TELL HIM THAT THERE IS A RANGE OF CHOICES AVAILABLE TO HIM.  IT IS TO
TELL HIM THAT THE RESPONSIBILITY IS HIS, AND THAT HE WILL NOT BE
REVERSED EXCEPT FOR STRAYING OUTSIDE THE PERMISSIBLE RANGE OF CHOICE,
I.E., FOR ABUSE OF DISCRETION.  SEE, E.G., UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173, 189; TIMKEN ROLLER BEARING CO. V. UNITED
STATES, 341 U.S. 593, 600-601.  IN SUSTAINING THE JUDGMENT IN LORAIN
JOURNAL CO. V. UNITED STATES, 342 U.S. 143, 156, THE COURT STATED ITS
STANDARD FOR UPHOLDING THE TRIAL COURT'S DECREE AS SIMPLY THAT "THE
DECREE IS REASONABLY CONSISTENT WITH THE REQUIREMENTS OF THE CASE AND
REMAINS WITHIN THE CONTROL OF THE COURT BELOW."  CERTAINLY WE OUGHT NOT
TO REVERSE THE CAREFULLY WROUGHT RESULTS OF A CONSCIENTIOUS TRIAL JUDGE
WITHOUT A SHOWING AMOUNTING ALMOST TO A DEMONSTRATION THAT HE EXCEEDED
THE FAIR LIMITS OF JUDICIAL CHOICE WHICH THIS COURT EXPLICITLY REPOSED
IN HIM.  (FN17) 

WHEN A DISTRICT JUDGE HAS FAILED TO ACCORD PARTIES AN ADEQUATE
HEARING OR HAS BEEN OTHERWISE WANTING IN THE ADMINISTRATION OF FAIR
PROCEDURE, THERE IS THE BEST OF REASONS FOR THIS COURT TO SECURE FOR
THEM THE FULL MEASURE OF JUDICIAL CONSIDERATION WHICH THEY ARE OWED BUT
FAILED TO RECEIVE.  BUT WHEN, AS IN THIS CASE, THE COMPREHENSIVENESS OF
THE HEARING, THE FULL CONSIDERATION OF THE ISSUES, BOTH THROUGH
EVIDENCE AND ARGUMENT, THE EVIDENT DILIGENCE AND SEARCHING COMPETENCE
OF THE JUDGE - REFLECTED THROUGHOUT THE LONG HEARING - AND HIS CARE IN
EXPOUNDING THE REASONS FOR HIS JUDGMENT DEMONSTRATE A DEEP AWARENESS OF
THE DUTY WITH WHICH THIS COURT CHARGED HIM WITHOUT ANY RESTRICTIONS ON
HIS TASK EXCEPT THAT HE WAS ENTRUSTED "WITH LARGE DISCRETION," REVERSAL
OF THE LOWER COURT'S RESULT CAN BE JUSTIFIED ONLY BY A SHOWING OF
PATENT MISCONCEPTION OF GOVERNING LAW OR WANT OF CONSCIENTIOUS REGARD
FOR "THE EXIGENCIES OF THE PARTICULAR CASE."  WHEN JUDGED BY THE
RELEVANT DECISIONS AND PRONOUNCEMENTS OF THIS COURT, SUCH LEGAL DEFECTS
OR INADEQUACIES ARE IMPRESSIVELY DISPROVED BY THIS RECORD. 

IT MAY BE SUGGESTED THAT HOWEVER FAITHFULLY THE TRIAL COURT ABIDED BY
THE OTHER TEACHINGS OF THIS COURT, IT FORGOT ONE, NAMELY, "THAT RELIEF,
TO BE EFFECTIVE, MUST GO BEYOND THE NARROW LIMITS OF THE PROVEN
VIOLATION."  UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76,
90.  SEE INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 400. 
THIS PRINCIPLE IS IMPORTANT BUT IT CARRIES NO WARRANT FOR REVERSAL IN
THIS CASE.  IT HAS ALREADY BEEN POINTED OUT THAT THE DISTRICT COURT
SPECIFICALLY APPLIED THIS PRINCIPLE IN SIGNIFICANT PROVISIONS OF ITS
DECREE.  THIS COURT FOUND A DANGER OF RESTRAINT OF TRADE ONLY IN THE
MARKET FOR AUTOMOBILE FABRICS AND FINISHES.  THE DISTRICT COURT
NEVERTHELESS EXTENDED THE INJUNCTIVE PROVISIONS OF ITS DECREE TO ALL
TRADE RELATIONS BETWEEN DU PONT AND GENERAL MOTORS, REGARDLESS OF THE
PRODUCTS INVOLVED.  THIS COURT PROCEEDED ON THE ASSUMPTION THAT THE
OFFICERS AND DIRECTORS OF THE COMPANIES HAD ACTED HONORABLY AND IN THE
BEST INTERESTS OF THEIR RESPECTIVE CORPORATIONS.  YET THE DISTRICT
COURT, RESPONSIVE TO THE GOVERNMENT'S URGING, THOUGH WITHOUT
SUBSTANTIAL EVIDENCE IN THE RECORD, CHOSE TO STERILIZE THE VOTING POWER
NOT ONLY OF DU PONT'S OFFICERS AND DIRECTORS, BUT ALSO OF A MAJOR BLOCK
OF ITS LARGE SHAREHOLDERS, THE SHAREHOLDERS OF CHRISTIANA AND
DELAWARE.  IN FACT, THE DISTRICT COURT EXCEEDED THE GOVERNMENT'S
REQUESTS IN SEVERAL SUBSTANTIAL RESPECTS.  THIS IS TRUE WITH RESPECT TO
THE INJUNCTION AGAINST COOPERATIVE AND PREFERENTIAL BUSINESS PRACTICES
BETWEEN DU PONT AND GENERAL MOTORS, (FN18) THE PROHIBITION AGAINST
INTERLOCKING CORPORATE PERSONNEL, (FN19) AND THE DETAIL OF THE
RETENTION OF JURISDICTION AND REOPENING CLAUSES.  (FN20) 

MOREOVER, THE PRINCIPLE OF EXTENDING RELIEF BEYOND THE NARROW LIMITS
OF THE VIOLATION HAS AN IMPORTANT LIMITING COROLLARY.  THE TRIAL COURT
IS NOT AUTHORIZED TO ORDER RELIEF WHICH IT IS WITHOUT FINDINGS TO
SUPPORT.  "A FULL EXPLORATION OF FACTS IS USUALLY NECESSARY IN ORDER
PROPERLY TO DRAW SUCH A DECREE."  ASSOCIATED PRESS V. UNITED STATES,
326 U.S. 1, 22.  THIS COURT HAS UNHESITATINGLY REVERSED REMEDIAL ACTION
BY THE LOWER COURTS, BOTH FOR AND AGAINST THE GOVERNMENT, WHEN WANTING
IN SUPPORTING FINDINGS.  SEE HARTFORD-EMPIRE CO. V. UNITED STATES, 323
U.S. 386, 418; SCHINE CHAIN THEATRES, INC., V. UNITED STATES, 334 U.S.
110; UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131, 170-174; HUGHES
V. UNITED STATES, 342 U.S. 353, 357-358.  BUT IF FINDINGS ON QUESTIONS
OF FACT, OR MIXED QUESTIONS OF LAW AND FACT, ARE ESSENTIAL TO THE
FORMULATION OF A DECREE, IT BECOMES VIRTUALLY IMPOSSIBLE TO DEVELOP A
BASIS FOR A DIVESTITURE ORDER AT THIS STAGE ON THIS RECORD.  THE
DISTRICT COURT FOUND THAT ONCE ALL OF DU PONT'S TIES TO GENERAL MOTORS,
SAVE ITS STOCK INTEREST, WERE SEVERED THE RECORD IS BARREN OF
JUSTIFICATION FOR AN INFERENCE OF REASONABLE PROBABILITY OF RESTRAINT
OF TRADE.  CONVERSELY, IT FOUND THAT THE TAX AND MARKET CONSEQUENCES OF
DIVESTITURE WOULD BE SO ONEROUS THAT, IN THE ABSENCE OF ANY SERIOUS
ANTICOMPETITIVE DANGER, IT WOULD HAVE CONSTITUTED AN ABUSE OF
DISCRETION TO ENTER SUCH A DECREE.  THESE CONCLUSIONS WERE BASED IN
SIGNIFICANT MEASURE ON THE FIRSTHAND FACTUAL ANALYSIS THAT ONLY A TRIAL
JUDGE IS IN A POSITION TO MAKE.  FOR THE COURT TO REQUIRE DIVESTITURE,
THEREBY OVERTURNING A TRIAL COURT JUDGMENT FOUNDED ON AN APPRAISAL OF
VOLUMINOUS CONFLICTING EVIDENCE AND OPINION, IS IN EFFECT TO DISPLACE
THE TRIAL COURT'S FUNCTION AS FACT-FINDER. 

THE GOVERNMENT SUGGESTS THAT POSSIBLY, IN "EXCEPTIONAL" CASES, SOME
REMEDY OTHER THAN DIVESTITURE MAY SUFFICE, BUT THAT THIS IS NOT THE
"EXCEPTIONAL" CASE.  IF THIS IS NOT AN "EXCEPTIONAL" CASE, WHAT WOULD
BE?  IS IT REALLY TENABLE TO REGARD THIS AN ORDINARY, A CONVENTIONAL, A
RUN-OF-THE-MILL CASE? 

DU PONT BEGAN TO ACQUIRE GENERAL MOTORS STOCK WHILE WORLD WAR I WAS
STILL IN PROGRESS.  IT OWNED THAT STOCK OPENLY FOR THREE DECADES BEFORE
THIS SUIT WAS INSTITUTED TO CHALLENGE THE VALIDITY OF THE ACQUISITION. 
DURING THAT PERIOD THE NUMBER OF GENERAL MOTORS AND DU PONT
STOCKHOLDERS EXPANDED FROM A FEW THOUSAND TO MANY HUNDREDS OF
THOUSANDS.  THE VALUE OF THE GENERAL MOTORS STOCK GREATLY INCREASED. 
THE TAX LAWS WERE SUBSTANTIALLY CHANGED.  THE DISTRICT COURT HAS
FASHIONED A CLOSELY KNIT NETWORK OF PROVISIONS TO PREVENT PREFERENTIAL
DEALINGS BETWEEN GENERAL MOTORS AND DU PONT.  SO CERTAIN WAS IT THAT
DIVESTITURE WOULD, ON THE BASIS OF ITS FINDINGS, WORK GREAT AND
UNJUSTIFIABLE LOSS ON WHOLLY INNOCENT INVESTORS, THAT IT CONSIDERED A
DIVESTITURE ORDER BEYOND ITS DISCRETIONARY POWER.  THE PRECEDENTS OF
THIS COURT TO WHICH THE DISTRICT COURT COULD LOOK FOR GUIDANCE IN THE
DISCHARGE OF ITS DUTY PERMITTED, AT THE LEAST, THE INFERENCES (1) THAT
THE FRAMING OF THE DECREE LAY WITHIN ITS DISCRETION, (2) THAT WITHIN
THE SCOPE OF THAT DISCRETION IT WAS FREE TO CONSIDER ALL RELEVANT
CONSEQUENCES, BOTH PUBLIC AND PRIVATE, OF THE PLANS PROPOSED, (3) THAT
IT WAS UNDER NO COMPULSION TO ORDER DIVESTITURE, (4) THAT THERE WAS
AMPLE REASON TO AVOID A HARSH REMEDY IF IT WERE TO CONCLUDE THAT A LESS
SEVERE ONE WOULD BE EFFECTIVE, (5) THAT BOTH THE FACTS AND THE
FORMULATED REASONING OF PRIOR DIVESTITURE CASES MADE THEM
DISTINGUISHABLE FROM THE DU PONT PROBLEM, AND (6) THAT UNLESS THE
DISTRICT COURT ABUSED ITS DISCRETION BY DISREGARDING THIS COURT'S
GUIDES FOR ITS DISCRETION, ITS JUDGMENT WOULD STAND ON REVIEW.  IN THE
FACE OF ALL THIS, IT IS INDEED "EXCEPTIONAL" FOR THIS COURT TO UPSET
THE LOWER COURT'S JUDGMENT THAT ITS DECREE MET THE NEEDS ESTABLISHED IN
THE PROCEEDING BEFORE IT. 

THE ESSENTIAL APPEAL OF THE GOVERNMENT'S POSITION LIES IN ITS
EXCITATION OF FEAR OF ANY INTERCORPORATE RELATIONSHIP BETWEEN TWO SUCH
COLOSSI AS DU PONT AND GENERAL MOTORS.  IT IS EASY TO CALM THIS FEAR BY
A REQUIREMENT OF DIVESTITURE.  INSOFAR AS THE COURT YIELDS TO THAT
FEAR, IT IS STRANGE, INDEED, THAT THIS WAS NOT OBVIOUS TO THE COURT
WHEN IT FOUND THE ILLEGALITY FOR WHICH IT DIRECTED THE DISTRICT COURT
TO EVOLVE A CORRECTIVE REMEDY.  NOT A SINGLE CONSIDERATION NOW ADVANCED
BY THE COURT FOR DIRECTING DIVESTITURE WAS NOT AVAILABLE WHEN THE CASE
WAS ORIGINALLY HERE.  FOR NOT ONE OF THESE CONSIDERATIONS IS BASED ON
EVIDENCE ELICITED AT THE HEARING BEFORE THE DISTRICT COURT, DIRECTED BY
THIS COURT, FOR DETERMINING THE RELIEF.  SUCH A LIMITATION ON THE
DISCRETIONARY DECREE-FASHIONING POWER, UPON FULL HEARING IN THE
DISTRICT COURT, CERTAINLY COULD NOT HAVE BEEN IN THIS COURT'S MIND WHEN
IT REMITTED THAT FUNCTION TO THE DISTRICT COURT, OTHERWISE IT WOULD
HAVE SPOKEN ITS MIND AND NOT LEFT IT ALL TO THE "LARGE DISCRETION" OF
THE COURT.  IN ANY EVENT IT REQUIRES PROPHETIC CONFIDENCE TO CONCLUDE
THAT THAT DECREE IS SO OBVIOUSLY INADEQUATE AS TO REQUIRE REVERSAL
BEFORE IT CAN BE TRIED IN PRACTICE.  NEITHER THE RECORD WHEN THE CASE
WAS FIRST HERE NOR THE FACTS ADDUCED AT THE HEARING ON MOLDING THE
DECREE GIVE WARRANT FOR THIS COURT TO SET ASIDE THE TRIAL COURT'S
FINDING ON THE IMPROBABILITY OF FUTURE RESTRAINT OF TRADE IN VIEW OF
THE SAFEGUARDING TERMS OF THE DECREE.  IF THE COURT WERE TO ALLOW THE
DISTRICT COURT'S MATURELY CONSIDERED SCHEME FOR PROTECTING THE DOMINANT
PUBLIC INTEREST WITH LESS THAN "SURGICAL RUTHLESSNESS" TO PROCEED, TIME
MIGHT SHOW THAT THE RELIEF GRANTED BY THE DISTRICT COURT WAS WELL
BASED, AND THAT THIS COURT'S WILLINGNESS TO GIVE IT A TRY PROPERLY
AVERTED REASONABLY FOUNDED FEAR OF SERIOUS ECONOMIC DISLOCATION. 

REVERSAL BY WAY OF COMMANDING DIVESTITURE IS A "JUDGMENT FROM
SPECULATION," CARRYING WITH IT IRREVERSIBLE CONSEQUENCES, WHEREAS THE
DISTRICT COURT'S DECREE LEAVES THE DOOR OPEN FOR "JUDGMENT FROM
EXPERIENCE," TANNER V. LITTLE, 240 U.S. 369, 386, UNDER ITS CLAUSES
RETAINING JURISDICTION TO MODIFY THE JUDGMENT IN THE LIGHT OF CHANGED
CIRCUMSTANCES.  RESORT TO SUCH SAFETY VALVE CLAUSES IS AN ESTABLISHED
PRACTICE IN REVIEW OF ANTITRUST REMEDIES, FOR THEY ALLOW THE COURTS TO
ACT ON THE BASIS OF INFORMED HINDSIGHT RATHER THAN TREACHEROUS
CONJECTURE.  IN INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392,
401, THE COURT ENUNCIATED THIS PRINCIPLE IN LANGUAGE PERTINENT HERE: 

"THE DISTRICT COURT HAS RETAINED JURISDICTION, BY THE TERMS OF ITS
JUDGMENT, FOR THE PURPOSE OF 'ENABLING ANY OF THE PARTIES  ...  TO
APPLY TO THE COURT AT ANY TIME FOR SUCH FURTHER ORDERS AND DIRECTIONS
AS MAY BE NECESSARY OR APPROPRIATE FOR THE CONSTRUCTION OR CARRYING OUT
OF THIS JUDGMENT' AND 'FOR THE AMENDMENT, MODIFICATIONS OR TERMINATION
OF ANY OF THE PROVISIONS  ...  .'  WE THINK IT WOULD NOT BE GOOD
JUDICIAL ADMINISTRATION TO STRIKE PARAGRAPH VI FROM THE JUDGMENT TO
MEET A HYPOTHETICAL SITUATION WHEN THE DISTRICT COURT HAS PURPOSELY
LEFT THE WAY OPEN TO REMEDY ANY SUCH SITUATIONS IF AND WHEN THE NEED
ARISES.  THE FACTUAL BASIS OF THE CLAIM FOR MODIFICATION SHOULD APPEAR
IN EVIDENTIARY FORM BEFORE THE DISTRICT COURT RATHER THAN IN THE
ARGUMENTATIVE FORM IN WHICH IT IS BEFORE US  ...  ." 

THE WISDOM OF THIS POLICY IS REFLECTED IN MANY OF OUR DECISIONS. 
(FN21)  WHY SHOULD IT NOT GUIDE THE COURT'S DECISION IN THIS CASE?  THE
GOVERNMENT'S PRESENTATION BOILS DOWN TO AN UNSUBSTANTIATED ASSERTION
THAT ANY TIE BETWEEN DU PONT AND GENERAL MOTORS GRAVELY JEOPARDIZES THE
PLAY OF COMPETITIVE FORCES.  WHEN WE ARE ASKED TO ASSUME THIS, WE ARE
ASKED TO ASSUME THAT EVEN AFTER A DECREE FASHIONED WITH THE
CIRCUMSPECTION WITH WHICH THIS WAS, A "REASONABLE PROBABILITY" EXISTS
THAT THE DEFENDANTS WILL, IN A WHOLLY UNDEFINED WAY, COMBINE TO VIOLATE
THE ANTITRUST LAWS.  WE ARE ASKED, IN ESSENCE, TO ENTER ALICE'S
WONDERLAND WHERE PROOF IS UNNECESSARY AND THE GOVERNING RULE OF LAW IS
"SENTENCE FIRST, VERDICT AFTER." 

THE DISTRICT COURT HERE CONCLUDED THAT THE RELIEF IT DEVISED WOULD
DISPEL ALL POTENTIAL RESTRAINTS UPON FREE COMPETITION AS EFFECTIVELY AS
WOULD DIVESTITURE, WHILE DIVESTITURE WAS LIKELY TO CAUSE SERIOUS
ECONOMIC DISTURBANCE UNWARRANTED BY A NEED FOR THAT REMEDY.  NEITHER IN
ITS PROCEDURES NOR IN ITS CONSIDERATION OF THE DATA PRESENTED TO IT DID
THE COURT FAIL TO DISCHARGE THE OBLIGATIONS PLACED UPON IT BY THE
DECISIONS OF THIS COURT AND BY THE ONLY INSTRUCTION - TO EXERCISE
"LARGE DISCRETION" - GIVEN IT BY THE COURT IN THIS CASE.  IN NO WAY DID
THE DISTRICT COURT ABUSE THE DISCRETION ENTRUSTED TO IT.  ITS JUDGMENT
SHOULD THEREFORE BE AFFIRMED. 

FN1  38 STAT. 731, 15 U.S.C. (1946 ED.)  SEC.  18.  THE SUIT WAS
BROUGHT PRIOR TO THE ENACTMENT IN 1950 OF AMENDMENTS TO THE ACT WHICH,
BY THEIR TERMS, ARE INAPPLICABLE TO PREVIOUS ACQUISITIONS.  64 STAT.
1125, 15 U.S.C. SEC. 18. 

FN2  26 STAT. 209, AS AMENDED, 50 STAT. 693, 15 U.S.C. SECS. 1, 2. 

FN3  SEE 353 U.S., AT 588, N. 5. 

FN4  FOR A DISCUSSION OF AMICUS DALLSTREAM'S RECOMMENDATIONS, SEE THE
OPINION OF THE DISTRICT COURT, 177 F. SUPP., AT 9-10.    FN5
TRANSCRIPT OF PROCEEDINGS, MARCH 31, 1959. 

FN6  A SUMMARY OF THE DETAILED PROVISIONS OF THE DECREE CARRYING OUT
THE DIRECTION AND PURPOSES OF THE COURT'S OPINION FOLLOWS. 

DU PONT, CHRISTIANA, AND DELAWARE WERE ENJOINED FROM ACQUIRING
ADDITIONAL GENERAL MOTORS STOCK EXCEPT AS STOCK OR RIGHTS MIGHT BE
DISTRIBUTED TO THEM AS STOCKHOLDERS BY GENERAL MOTORS. 

DU PONT, CHRISTIANA, AND DELAWARE, ON THE ONE HAND, AND GENERAL
MOTORS, ON THE OTHER, WERE PROHIBITED TO HAVE COMMON OFFICERS,
DIRECTORS, OR EMPLOYEES.  THE FORMER THREE WERE ALSO RESTRAINED FROM
NOMINATING ANY PERSON TO BE AN OFFICER OR DIRECTOR OF GENERAL MOTORS. 

DU PONT AND GENERAL MOTORS WERE COMPELLED TO TERMINATE, FOR AS LONG
AS DU PONT, CHRISTIANA, OR DELAWARE OWN ANY GENERAL MOTORS STOCK, ANY
AGREEMENT BETWEEN THEM WHICH (1) REQUIRES GENERAL MOTORS TO PURCHASE
FROM DU PONT A SPECIFIED PERCENTAGE OF ITS REQUIREMENTS OF ANY PRODUCT
(WITH CERTAIN TIME PROVISOS), OR (2) GRANTS TO EITHER CONCERN EXCLUSIVE
PATENT RIGHTS, OR GRANTS TO DU PONT PREFERENTIAL RIGHTS TO MAKE OR SELL
ANY CHEMICAL DISCOVERY OF GENERAL MOTORS. 

DU PONT, CHRISTIANA, AND DELAWARE WERE RESTRAINED, FOR THE SAME
PERIOD, FROM ENTERING INTO ANY JOINT BUSINESS VENTURE WITH GENERAL
MOTORS AND FROM KNOWINGLY HOLDING STOCK IN ANY BUSINESS ENTERPRISE IN
WHICH GENERAL MOTORS HOLDS STOCK.  THE SAME RESTRICTIONS WERE APPLIED
TO GENERAL MOTORS. 

DU PONT WAS ENJOINED, AGAIN FOR THE STOCK-HOLDING PERIOD, FROM
DEALING WITH GENERAL MOTORS WITH RESPECT TO DU PONT PRODUCTS ON TERMS
MORE FAVORABLE THAN THOSE ON WHICH IT IS WILLING TO DEAL WITH GENERAL
MOTORS' COMPETITORS.  THE SAME RESTRICTION WAS PLACED UPON GENERAL
MOTORS IN ITS DEALINGS WITH DU PONT. 

DU PONT, CHRISTIANA, AND DELAWARE, AND THEIR DIRECTORS AND OFFICERS,
AND THE MEMBERS OF THE FAMILIES OF THEIR DIRECTORS AND OFFICERS WHO
RESIDE IN THE SAME HOUSEHOLD WITH THEM, WERE ENJOINED FROM EXERCISING
THEIR VOTING RIGHTS IN GENERAL MOTORS STOCK OWNED BY THEM OR ALLOCABLE
TO THEM UNDER THE DECREE, AND FROM ATTEMPTING TO INFLUENCE ANYONE
VOTING GENERAL MOTORS STOCK. 

THE VOTE ON THE GENERAL MOTORS SHARES OWNED BY DU PONT WAS ORDERED
"PASSED THROUGH" TO THE STOCKHOLDERS OF DU PONT (SUBJECT TO THE
PROHIBITIONS OF THE PRECEDING PARAGRAPH), AND THE NOTIFICATION AND
PROXY MACHINERY NECESSARY TO EFFECTUATE THIS PROVISION WAS OUTLINED. 
PROVISION WAS MADE FOR THE APPOINTMENT OF A MONITOR OF THESE VOTING
PROCEDURES. 

A PROCEDURE WAS ESTABLISHED WHEREBY DU PONT AND CHRISTIANA MIGHT SELL
OR OTHERWISE DISPOSE OF THEIR GENERAL MOTORS STOCK. 

TWO SEPARATE PROVISIONS PRESERVED THE RIGHT OF ANY PARTY TO APPLY TO
THE COURT FOR MODIFICATION OF THE DECREE IN THE EVENT OF A CHANGE OF
CIRCUMSTANCES (SUCH AS THE ADVENT OF LEGISLATIVE TAX RELIEF) AND FOR
FURTHER ORDERS NECESSARY FOR CARRYING OUT THE JUDGMENT. 

DU PONT, CHRISTIANA, AND DELAWARE WERE DIRECTED TO OBTAIN FROM THEIR
OFFICERS AND DIRECTORS, AND THEIR FAMILIES, WRITTEN CONSENTS TO BE
BOUND BY THE VOTING RESTRICTIONS OF THE JUDGMENT. 

FOR THE PURPOSE OF SECURING COMPLIANCE WITH THE JUDGMENT, THE
DEPARTMENT OF JUSTICE WAS AUTHORIZED TO CONDUCT REASONABLE INSPECTIONS
OF THE RECORDS AND INTERVIEWS WITH THE EMPLOYEES OF DU PONT,
CHRISTIANA, AND DELAWARE AND TO APPLY TO THE COURT FOR SIMILAR
PRIVILEGES AS TO GENERAL MOTORS UPON A SHOWING OF GOOD CAUSE. 

FN7  SEE, E.G., UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S.
173, 185; INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 400
401; BESSER MFG. CO. V. UNITED STATES, 343 U.S. 444, 449-450;
INTERNATIONAL BOXING CLUB V. UNITED STATES, 358 U.S. 242, 253. 

FN8  IN ADDITION, SEE, FOR EXAMPLE, MCCLINTOCK, EQUITY (2D ED. 1948),
SEC. 30: 

"A COURT OF EQUITY MAY FFRAME ITS DECREE SO AS TO PROTECT TO THE
GREATEST EXTENT POSSIBLE THE CONFLICTING INTERESTS OF THE PARTIES; TO
ACCOMPLISH THIS IT MAY REQUIRE THE PERFORMANCE OF CONDITIONS, MAY
EXPERIMENT TO DETERMINE HOW BEST TO ACCOMPLISH ITS PURPOSE, AND MAY USE
EITHER THE NEGATIVE OR THE POSITIVE FORM OF DECREE." 

POMEROY, EQUITY JURISPRUDENCE (5TH ED. 1941), SEC. 109: 

"EQUITABLE REMEDIES  ...  ARE DISTINGUISHED BY THEIR FLEXIBILITY,
THEIR UNLIMITED VARIETY, THEIR ADAPTABILITY TO CIRCUMSTANCES, AND THE
NATURAL RULES WHICH GOVERN THEIR USE.  THERE IS IN FACT NO LIMIT TO
THEIR VARIETY AND APPLICATION; THE COURT OF EQUITY HAS THE POWER OF
DEVISING ITS REMEDY AND SHAPING IT SO AS TO FIT THE CHANGING
CIRCUMSTANCES OF EVERY CASE AND THE COMPLEX RELATIONS OF ALL THE
PARTIES." 

FN9  SEE ALSO UNITED STATES V. TERMINAL R. ASSN., 224 U.S. 383;
UNITED STATES V. AMERICAN CAN CO., 234 F. 1019; UNITED STATES V. GREAT
LAKES TOWING CO., 208 F. 733, 217 F. 656. 

FN10  THE BICKS STATEMENT ITSELF MAKES REPEATED REFERENCE TO THE
PENDING DU PONT CASE.  SEE 4 ANTITRUST BULLETIN, AT 561, N. 7, 562, N.
8, 567, N. 13.  AND THE COMMITTEE REPORT AND HEARINGS RECUR AGAIN AND
AGAIN TO THE SERIOUS TAX PROBLEM ENGENDERED BY THE CASE.  SEE H.R.
REP. NO. 1128, 86TH CONG., 1ST SESS.; HEARINGS ON H.R. 8126 BEFORE THE
HOUSE COMMITTEE ON WAYS AND MEANS, 86TH CONG., 1ST SESS.; HEARINGS ON
S. 200 BEFORE THE SENATE COMMITTEE ON FINANCE, 86TH CONG., 1ST SESS. 

FN11  AND SEE UNITED STATES V. UNITED SHOE MACHINERY CORP., 110 F.
SUPP. 295, 348. 

FN12  FOR A SIMILAR STATEMENT SEE UNITED STATES V. MINNESOTA MINING &
MFG. CO., 96 F. SUPP.  356, 357. 

"IN GENERAL THE OBJECT OF THE REMEDIES UNDER THE ANTI-TRUST LAWS IS
TO PREVENT THE CONTINUANCE OF WRONGFUL CONDUCT, AND TO DEPRIVE THE
WRONGDOERS OF THE FRUITS OF THEIR UNLAWFUL CONDUCT, AND TO PREVENT THE
CREATION ANEW OF RESTRAINT FORBIDDEN BY LAW  ...  ." 

FN13  IN THE CRESCENT CASE, 323 U.S., AT 189, THE COURT PLACED IN
THIS CATEGORY NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197;
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; UNITED STATES V.
AMERICAN TOBACCO CO., 221 U.S. 106; UNITED STATES V. UNION PACIFIC R.
CO., 226 U.S. 61; UNITED STATES V. READING CO., 253 U.S. 26; UNITED
STATES V. LEHIGH VALLEY R. CO., 254 U.S. 255; AND UNITED STATES V.
SOUTHERN PACIFIC CO., 259 U.S. 214.  OUR SURVEY OF THESE CASES SUSTAINS
THIS CLASSIFICATION.  TO THIS LIST MAY BE ADDED INTERNATIONAL BOXING
CLUB V. UNITED STATES, 358 U.S. 242, IN WHICH THE COURT ACCEPTED THE
DISTRICT COURT'S FINDING THAT "'THE GREAT EVIL'" IN THE CASE "'WAS THE
COMBINATION THAT WIRTZ AND NORRIS CAUSED AND CREATED BY JOINING UP WITH
MADISON SQUARE GARDEN.'"  358 U.S., AT 256. 

FN14  SEE ADDITIONALLY, INTERNATIONAL BOXING CLUB V. UNITED STATES,
358 U.S. 242, 253. 

FN15  THIS CONSTRUCTION OF THE STATUTE HAD LONG BEEN SETTLED.  SEE
INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, 280 U.S. 291, 297-298. 

"SECTION 7 OF THE CLAYTON ACT, AS ITS TERMS AND THE NATURE OF THE
REMEDY PRESCRIBED PLAINLY SUGGEST, WAS INTENDED FOR THE PROTECTION OF
THE PUBLIC AGAINST THE EVILS WHICH WERE SUPPOSED TO FLOW FROM THE UNDUE
LESSENING OF COMPETITION  ...  . 

     *         *         *         *         * 

"MERE ACQUISITION BY ONE CORPORATION OF THE STOCK OF A COMPETITOR,
EVEN THOUGH IT RESULT IN SOME LESSENING OF COMPETITION, IS NOT
FORBIDDEN; THE ACT DEALS ONLY WITH SUCH ACQUISITIONS AS PROBABLY WILL
RESULT IN LESSENING COMPETITION TO A SUBSTANTIAL DEGREE  ...  THAT IS
TO SAY, TO SUCH A DEGREE AS WILL INJURIOUSLY AFFECT THE PUBLIC  ...
." 

FN16  TO THE SAME EFFECT, SEE ASSOCIATED PRESS V. UNITED STATES, 326
U.S. 1; LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S. 143;
INTERNATIONAL BOXING CLUB V. UNITED STATES, 358 U.S. 242; MARYLAND &
VIRGINIA MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458. 

FN17  THE COURT SHOULD NOT ALLOW ITSELF TO BE LED TO A CONTRARY
CONCLUSION BY THE LANGUAGE OF UNITED STATES V. UNITED STATES GYPSUM
CO., 340 U.S. 76, OR HARTFORD-EMPIRE CO. V. UNITED STATES, 324 U.S.
570.  THE GYPSUM CASE SAYS ONLY THAT THE DISTRICT COURT'S CONCLUSIONS
SHOULD NOT BE SUBJECT TO REVERSAL MERELY FOR GROSS ABUSE OF DISCRETION,
AND THAT THIS COURT MUST INTERVENE WHEN THE PROVISIONS OF THE DECREE
ARE "INAPPROPRIATE."  I COULD NOT AGREE MORE, EITHER WITH THESE VIEWS
OR WITH THOSE EXPRESSED IN THE REMARKS THAT FORMED THEIR PREFACE: 

"THE DETERMINATION OF THE SCOPE OF THE DECREE TO ACCOMPLISH ITS
PURPOSE IS PECULIARLY THE RESPONSIBILITY OF THE TRIAL COURT.  ITS
OPPORTUNITY TO KNOW THE RECORD AND TO APPRAISE THE NEED FOR
PROHIBITIONS OR AFFIRMATIVE ACTIONS NORMALLY EXCEEDS THAT OF ANY
REVIEWING COURT."  340 U.S., AT 89. 

IN HARTFORD-EMPIRE THE OPINION OF THE COURT SAYS "IT IS UNTHINKABLE
THAT CONGRESS HAS ENTRUSTED THE ENFORCEMENT OF A STATUTE OF SUCH FAR
REACHING IMPORTANCE TO THE JUDGMENT OF A SINGLE JUDGE, WITHOUT REVIEW
OF THE RELIEF GRANTED OR DENIED BY HIM."  324 U.S., AT 571.  THESE
WORDS, IF GIVEN THE READING THEY SEEM MOST READILY TO BEAR, ARE
CERTAINLY UNOBJECTIONABLE, FOR OUR POWER TO REVIEW THE ANTITRUST RELIEF
DETERMINATIONS OF TRIAL JUDGES IS NOT IN DOUBT.  IF THIS LANGUAGE IS TO
BE READ TO AUTHORIZE DE NOVO CONSIDERATION HERE OF ALL THE DETAILS OF A
LOWER COURT'S DECREE, THEN IT MARKS A REAL ABERRATION IN THIS BRANCH OF
THE LAW.  WHATEVER RESPECT SUCH A VIEW MIGHT ONCE HAVE DESERVED, IT
DESERVES NONE NOW, FOR OUR RECENT DECISIONS HAVE UNIFORMLY ADOPTED THE
PRINCIPLE OF APPELLATE DEFERENCE TO TRIAL COURT DISCRETION.  SEE CASES
CITED IN NOTES 7 AND 16, SUPRA. 

FN18  COMPARE THE GOVERNMENT'S PROPOSED ARTICLE IX WITH SECTION V OF
THE FINAL JUDGMENT. 

FN19  COMPARE THE GOVERNMENT'S PROPOSED ARTICLE X WITH SECTION IV OF
THE FINAL JUDGMENT. 

FN20  COMPARE THE GOVERNMENT'S PROPOSED ARTICLE XIII WITH SECTIONS IX
AND XII OF THE FINAL JUDGMENT. 

FN21  SEE ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 22-23;
TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S. 593, 604 (OPINION
OF MR. JUSTICE REED); LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S.
143, 157; MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V. UNITED STATES,
362 U.S. 458, 473. 
..END :








UNITED STATES V. CONSOLIDATED EDISON CO. OF NEW YORK, INC. 366 U.S. 380 



NO. 357.  ARGUED APRIL 24, 1961.  - DECIDED MAY 22, 1961.  - 279 F.2D
152, AFFIRMED. 


RESPONDENT CORPORATION KEEPS ITS BOOKS AND COMPUTES ITS INCOME TAXES
ON THE CALENDAR-YEAR ACCRUAL BASIS OF ACCOUNTING.  IN EACH OF THE YEARS
1946 THROUGH 1950, IT PAID UNDER PROTEST THE ENTIRE AMOUNT OF TAXES
ASSESSED AGAINST ITS REAL ESTATE, IN ORDER TO AVOID INTEREST, PENALTIES
AND THE SEIZURE AND SALE OF ITS PROPERTY.  IT ADMITTED LIABILITY FOR
85% OF SUCH TAXES, DENIED LIABILITY FOR THE REMAINING 15%, AND PROMPTLY
INSTITUTED COURT PROCEEDINGS FOR REFUND OF THE 15%.  IN 1951, THE COURT
PROCEEDINGS RESULTED IN A FINAL DETERMINATION THAT RESPONDENT WAS
LIABLE FOR 95% OF THE ENTIRE AMOUNT, AND 5% OF THE AMOUNT IT HAD PAID
WAS REFUNDED TO IT.  HELD: 

1.  FOR INCOME TAX PURPOSES, $10 OF EACH $15 OF RESPONDENT'S
CONTESTED TAX LIABILITY ACCRUED, NOT IN THE YEAR OF THE REMITTANCE, BUT
IN 1951 WHEN THE STATE COURT ENTERED ITS FINAL ORDER DETERMINING THAT
LIABILITY.  P. 392. 

2.  THE $5 OF EACH $15 OF CONTESTED TAX LIABILITY FOR WHICH
RESPONDENT WAS HELD NOT LIABLE AND WHICH WAS REFUNDED TO IT WAS NOT
INCOME TO RESPONDENT IN 1951.  P. 392. 

UNITED STATES V. CONSOLIDATED EDISON CO. OF NEW YORK, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK TO RECOVER A CLAIMED OVERPAYMENT
OF FEDERAL INCOME TAXES FOR THE YEAR 1951.  IT KEEPS ITS BOOKS AND
FILES ITS RETURNS ON A CALENDAR-YEAR ACCRUAL BASIS.  THE CASE TURNS ON
THE CORRECT DETERMINATION OF THE PROPER YEAR OF ACCRUAL AND DEDUCTION
OF CERTAIN CONTESTED REAL ESTATE TAXES.  SPECIFICALLY, THE QUESTION IS
WHETHER THE CONTESTED PART OF A REAL ESTATE TAX ACCRUED (1) IN THE YEAR
IT WAS ASSESSED AND, FOR THE PURPOSE - AND AS THE ONLY MODE RECOGNIZED
BY THE LOCAL LAW - OF AVOIDING SEIZURE AND SALE OF THE PROPERTY FOR THE
CONTESTED TAX WHILE THE CONTEST WAS PENDING, WAS "PAID" BY THE
TAXPAYER, OR (2) IN THE YEAR THE CONTEST WAS FINALLY DETERMINED. 

THE DISTRICT COURT, FOLLOWING THE HOLDING OF THE COURT OF CLAIMS IN
CONSOLIDATED EDISON CO. V. UNITED STATES, 133 CT. CL. 376, 135 F. SUPP.
881, THAT SUCH A "PAYMENT" OF THE TAX "ACCRUES THE ITEM EVEN THOUGH
PAYMENT IS MADE UNDER PROTEST AND EVEN THOUGH LITIGATION IS STARTED
WITHIN THE TAXABLE YEAR TO OBTAIN REPAYMENT," 133 CT. CL., AT 383-384,
135 F. SUPP., AT 855, HELD, WITHOUT OPINION, THAT THE CONTESTED PART OF
THE TAX ACCRUED IN THE YEAR OF THE "PAYMENT."  ON APPEAL, THE COURT OF
APPEALS, BY A DIVIDED COURT, HELD THAT THE CONTESTED PART OF THE TAX
ACCRUED IN THE YEAR THE CONTEST WAS FINALLY DETERMINED, AND REVERSED
THE JUDGMENT.  279 F.2D 152.  IT REASONED THAT INASMUCH AS RESPONDENT
WAS "KEEPING ITS BOOKS ON THE ACCRUAL BASIS," THE CONTESTED PART OF THE
TAX ACCRUED "ONLY WHEN ALL EVENTS HAD OCCURRED WHICH DETERMINED THE
FACT AND AMOUNT OF THE TAX LIABILITY."  ID., AT 155.  TO RESOLVE THE
CONFLICT BETWEEN THE DECISION BELOW AND CONSOLIDATED EDISON CO. V.
UNITED STATES, SUPRA, WE GRANTED CERTIORARI.  364 U.S. 890. 

DURING THE YEARS INVOLVED - 1946 THROUGH 1950 - RESPONDENT OWNED
NUMEROUS TRACTS OF REAL ESTATE IN NEW YORK CITY WHICH WERE SUBJECT TO
ANNUAL LOCAL PROPERTY TAXES.  UNDER THE NEW YORK LAW, THE CITY COUNCIL
ANNUALLY FIXES THE TAX RATE, AND THE CITY TAX COMMISSION ANNUALLY FIXES
THE PROPERTY VALUATIONS.  THUS THE AMOUNT OF THE TAX ON EACH TRACT IS
DETERMINED BY MULTIPLYING THE VALUATION BY THE TAX RATE.  THE TAX RATE
IS NOT CONTESTABLE, BUT A TIMELY APPLICATION (COMMONLY CALLED A
"PROTEST") MAY BE MADE TO THE CITY TAX COMMISSION TO CORRECT AN
ERRONEOUS VALUATION.  AMONG OTHER THINGS, THE PROTEST MUST STATE THE
AMOUNT WHICH THE TAXPAYER "CONSIDERS WAS THE FULL VALUE OF THE PROPERTY
ON JANUARY 25 OF THE CURRENT YEAR" THUS TO ESTABLISH THE AMOUNT OF THE
TAX THAT IS NOT CONTESTED.  UPON EXHAUSTION OF THIS ADMINISTRATIVE
PROCEDURE, A REVIEW OF THE COMMISSION'S DETERMINATION MAY BE HAD BY A
JUDICIAL PROCEEDING, COMMONLY CALLED A CERTIORARI PROCEEDING, IN THE
STATE SUPREME COURT, WHICH IS THE TAXPAYER'S SOLE AND EXCLUSIVE
REMEDY.  BUT THE INSTITUTION OF SUCH A SUIT DOES NOT STAY OR SUSPEND
THE MATURITY OF THE TAX BILL, THE ACCRUAL OF 7% INTEREST ON IT, NOR THE
SEIZURE AND SALE OF THE PROPERTY TO SATISFY THE TAX LIEN.  THUS, TO
OBTAIN REVIEW, THE TAXPAYER MUST EITHER "PAY" THE TAX OR SUFFER THE
INTEREST PENALTY AND RUN THE RISK OF SEIZURE AND SALE OF ITS PROPERTY. 
(FN1) 

THOUGH TAXES FOR EACH OF FIVE YEARS ON HUNDREDS OF TRACTS ARE
INVOLVED AND THE AGGREGATE AMOUNT IS VERY SUBSTANTIAL, THE PARTIES VERY
COMMENDABLY STIPULATED IN THE DISTRICT COURT THAT THE FACTS ARE
SUFFICIENTLY REFLECTED, FOR THE PURPOSES OF THIS SUIT, IN THE FOLLOWING
SIMPLIFIED EXAMPLE: 

IN EACH OF THE YEARS 1946 THROUGH 1950, RESPONDENT WAS NOTIFIED OF A
TENTATIVE VALUATION WHICH, AT THE ESTABLISHED TAX RATE, WOULD PRODUCE A
TAX OF $100.  RESPONDENT THEM TIMELY FILED A BONA FIDE PROTEST (IN
RESPECT OF MANY, BUT NOT NEARLY ALL, OF ITS TRACTS) STATING A VALUATION
WHICH, AT THE ESTABLISHED TAX RATE, WOULD PRODUCE A TAX OF $85, AND
ASKING THAT THE BALANCE OF THE PROPOSED VALUATION BE STRICKEN AS
EXCESSIVE.  AFTER HEARING, THE COMMISSION REJECTED THE PROTEST, AND AN
ASSESSMENT IN THE AMOUNT OF $100 WAS MADE.  THEREUPON RESPONDENT, UNDER
PROTEST AND FOR THE HONESTLY STATED PURPOSE OF AVOIDING THE INTEREST
PENALTY AND THE SEIZURE AND SALE OF ITS PROPERTY WHILE IT WAS
CONTESTING THE COMMISSION'S VALUATION BY CERTIORARI PROCEEDINGS IN THE
STATE COURT, REMITTED TO THE CITY CASH IN AN AMOUNT EQUAL TO THE TAX OF
$100, AND IMMEDIATELY THEREAFTER COMMENCED A CERTIORARI PROCEEDING IN
THE PROPER COURT, IN WHICH IT AGAIN ADMITTED LIABILITY FOR A TAX IN THE
AMOUNT OF $85, BUT DENIED ALL LIABILITY FOR ANY TAX IN EXCESS OF THAT
AMOUNT.  IN DECEMBER 1951, THE COURT, UPON THE CONSENT OF THE PARTIES
TO THE ACTION, ENTERED ITS ORDER IN (EACH OF) THE CERTIORARI
PROCEEDINGS FIXING RESPONDENT'S TAX LIABILITY AT $95, AND THEREUPON THE
CITY FORTHWITH RETURNED $5 TO RESPONDENT. 

ALTHOUGH IT WAS THEN ENGAGED IN A CONTEST WITH THE COMMISSIONER IN THE
COURT OF CLAIMS OVER AN IDENTICAL QUESTION, NAMELY, THE PROPER INCOME
TAX TREATMENT TO BE ACCORDED THE $15 FOR EACH OF THE YEARS 1938, 1939
AND 1941 - WHICH ISSUE WAS DECIDED BY THE COURT OF CLAIMS IN DECEMBER
1955 IN FAVOR OF THE GOVERNMENT, CONSOLIDATED EDISON CO. V. UNITED
STATES, SUPRA - RESPONDENT, IN TERMS OF THE ILLUSTRATIVE EXAMPLE,
ACCRUED ON ITS BOOKS AND DEDUCTED ON ITS FEDERAL INCOME TAX RETURNS,
FOR EACH OF THE YEARS 1946 THROUGH 1950, THE FULL $100; AND IN ITS
RETURN FOR THE YEAR 1951 - IN WHICH YEAR THE REAL ESTATE TAX LIABILITY
WAS DETERMINED TO BE $95 - RESPONDENT FAILED TO DEDUCT THE $10 FROM,
AND INCLUDED THE $5 IN, ITS GROSS INCOME FOR THAT YEAR.  (FN2) 

BELIEVING THAT THIS TREATMENT OF THE $15 IN 1951 WAS ERRONEOUS AND
RESULTED IN ITS PAYING A LESSER AMOUNT OF FEDERAL INCOME TAXES IN EACH
OF THE YEARS 1946 THROUGH 1950, AND MORE IN THE YEAR 1951, THAN IT
SHOULD HAVE PAID, (FN3) RESPONDENT FILED IN FEBRUARY 1955 ITS CLAIM FOR
REFUND OF SO MUCH OF ITS 1951 INCOME TAXES AS RESULTED (1) FROM ITS
FAILURE TO DEDUCT THE $10 OF REAL ESTATE TAX THAT WAS DETERMINED, IN
THAT YEAR, TO BE VALID, AND (2) FROM ITS INCLUSION IN GROSS INCOME OF
THE $5 RETURNED TO IT IN THAT YEAR.  UPON REJECTION OF THAT CLAIM,
RESPONDENT TIMELY BROUGHT THIS ACTION IN THE DISTRICT COURT TO RECOVER
THE REFUND CLAIMED, AND OBTAINED THE RESULT ALREADY STATED. 

IT IS SETTLED THAT EACH "TAXABLE YEAR" MUST BE TREATED AS A SEPARATE
UNIT, AND ALL ITEMS OF GROSS INCOME AND DEDUCTION MUST BE REFLECTED IN
TERMS OF THEIR POSTURE AT THE CLOSE OF SUCH YEAR.  BURNET V. SANFORD &
BROOKS CO., 282 U.S. 359; HEINER V. MELLON, 304 U.S. 271; GUARANTY
TRUST CO. V. COMMISSIONER, 303 U.S. 493; SECURITY MILLS CO. V.
COMMISSIONER, 321 U.S. 281.  AND THE PARTIES AGREE THAT, UNDER THE
APPLICABLE FEDERAL STATUTES, (FN4) NEITHER THE GOVERNMENT NOR AN
ACCRUAL-BASIS TAXPAYER MAY CAUSE AN ITEM TO BE DEDUCTED IN A YEAR OTHER
THAN THE ONE IN WHICH IT ACCRUED.  UNITED STATES V. ANDERSON, 269 U.S.
422; SECURITY MILLS CO. V. COMMISSIONER, SUPRA; UNITED STATES V.
OLYMPIC RADIO & TELEVISION, 349 U.S. 232.  THEY ALSO AGREE THAT THE
"TOUCHSTONE" FOR DETERMINING THE YEAR IN WHICH AN ITEM OF DEDUCTION
ACCRUES IS THE "ALL EVENTS" TEST ESTABLISHED BY THIS COURT IN UNITED
STATES V. ANDERSON, SUPRA, (FN5) AND SINCE REAFFIRMED BY THIS COURT ON
NUMEROUS OCCASIONS, SO THAT IT IS NOW A FUNDAMENTAL PRINCIPLE OF TAX
ACCOUNTING.  SEE, E.G., LUCAS V. AMERICAN CODE CO., 280 U.S. 445; BROWN
V. HELVERING, 291 U.S. 193; DIXIE PINE CO. V. COMMISSIONER, 320 U.S.
516; SECURITY MILLS CO. V. COMMISSIONER, SUPRA.  (FN6)  THE PARTIES
ALSO RECOGNIZE THAT THIS COURT AMPLIFIED, OR AS THE GOVERNMENT SAYS
"ADDED A REFINEMENT TO," THE "ALL EVENTS" TEST BY ITS HOLDING, IN DIXIE
PINE CO. V. COMMISSIONER, SUPRA, THAT AN ACCRUAL-BASIS TAXPAYER COULD
NOT, WHILE "CONTESTING LIABILITY IN THE COURTS," DEDUCT "THE AMOUNT OF
THE TAX, ON THE THEORY THAT THE STATE'S EXACTION CONSTITUTED A FIXED
AND CERTAIN LIABILITY," BUT "MUST, IN THE CIRCUMSTANCES, AWAIT THE
EVENT OF THE STATE COURT LITIGATION AND MIGHT CLAIM A DEDUCTION ONLY
FOR THE TAXABLE YEAR IN WHICH ITS LIABILITY FOR THE TAX WAS FINALLY
ADJUDICATED."  320 U.S., AT 519.  THAT PRINCIPLE WAS SPECIFICALLY
REAFFIRMED IN SECURITY MILLS CO. V. COMMISSIONER, SUPRA.  (FN7) 

THAT $85 OF THE $100 ASSESSMENT WAS ADMITTED TO BE OWING AND WAS
INTENDED TO BE PAID AND SATISFIED BY THE REMITTANCE, AND THUS ACCRUED
IN THE YEAR OF THE REMITTANCE, IS NOT IN DISPUTE.  RESPONDENT'S GOOD
FAITH, IN CONTESTING $15 OF THE ASSESSMENT, IS NOT IN DISPUTE, FOR THE
GOVERNMENT EXPRESSLY "DISAVOWS ANY SUGGESTION THAT THE RESPONDENT  ...
FILED ITS CLAIMS AGAINST THE CITY OF NEW YORK IN BAD FAITH,  ...
CALCULATINGLY INFLATED THOSE CLAIMS, OR  ...  FAILED TO PROSECUTE THEM
WITH DILIGENCE."  NOR IS IT QUESTIONED THAT ACCRUAL OF SUCH TAXES IN
THE PROPER YEAR ACCORDS WITH "GOOD ACCOUNTING" PRINCIPLES. 

BUT CONCORDANCE OF THE VIEWS OF THE PARTIES ENDS AT THIS POINT.  THE
GOVERNMENT CONTENDS THAT THE REMITTANCE BY RESPONDENT TO THE CITY, IN
EACH OF THE YEARS IN QUESTION, OF CASH IN AN AMOUNT EQUAL TO THE WHOLE
OF THE ASSESSED TAX ADMITTED LIABILITY FOR, AND WAS INTENDED TO AND DID
CONSTITUTE "PAYMENT" AND "SATISFACTION" OF, BOTH THE DISPUTED AND
UNDISPUTED PARTS OF THE ASSESSMENT; AND THAT WHEN "THE TAXPAYER PAYS
THE ITEM AND THEREBY DISCHARGES ITS LIABILITY, THE EXPENSE HAS BEEN
INCURRED AND THERE IS NO LONGER ANY CONTINGENCY WHICH WOULD PREVENT ITS
ACCRUAL."  RESPONDENT, ON THE OTHER HAND, INSISTS THAT ITS REMITTANCE
TO THE CITY WAS NOT INTENDED TO AND DID NOT ADMIT LIABILITY FOR, NOR
CONSTITUTE "PAYMENT" AND "SATISFACTION" OF, THE CONTESTED $15 OF THE
ASSESSMENT, BUT WAS, IN EFFECT, A MERE DEPOSIT, IN THE NATURE OF A CASH
BOND, REQUIRED OF RESPONDENT, IN A PRACTICAL SENSE, BY THE LOCAL LAW AS
THE ONLY AVAILABLE MODE OF AVOIDING THE RISK OF SEIZURE AND SALE OF THE
PROPERTY FOR THE CONTESTED TAX WHILE ITS VALIDITY WAS BEING DILIGENTLY
CONTESTED IN THE ONLY WAY ALLOWED BY THE LAWS OF THE STATE. 

THUS THE VERY NARROW ISSUE HERE IS WHETHER THE REMITTANCE ADMITTED
LIABILITY FOR, AND CONSTITUTED "PAYMENT" AND "SATISFACTION" OF, THE
CONTESTED PART OF THE ASSESSMENT AND THEREBY RENDERED IT ACCRUABLE IN
THE YEAR OF THE REMITTANCE.  LIKE THE COURT OF APPEALS, WE THINK THE
RESPONDENT IS RIGHT IN ITS CONTENTION, AND THAT $10 OF THE CONTESTED
$15 OF THE TAX ACCRUED WHEN LIABILITY IN THAT AMOUNT WAS FINALLY
DETERMINED BY THE NEW YORK COURT IN 1951, AND THAT THE $5, FOR WHICH
RESPONDENT WAS BY THAT JUDGMENT HELD NOT LIABLE, AND WHICH WAS RETURNED
TO IT BY THE CITY, WAS NOT INCOME TO RESPONDENT IN 1951. 

ALTHOUGH THE GOVERNMENT ATTEMPTS TO DISTINGUISH THE ANDERSON, DIXIE
PINE AND SECURITY MILLS CASES ON THE GROUND THAT "PAYMENT" OF THE
CONTESTED TAXES HAD NOT BEEN MADE IN THOSE CASES, IT PRIMARILY RELIES
ON THE DECISIONS OF THE COURT OF CLAIMS IN CHESTNUT SECURITIES CO. V.
UNITED STATES, 104 CT. CL. 489, 62 F. SUPP. 574, AND CONSOLIDATED
EDISON CO. V. UNITED STATES, 133 CT. CL. 376, 135 F. SUPP. 881. 

THE CHESTNUT SECURITIES CASE TURNED ON THE QUESTION WHETHER CERTAIN
JUDICIALLY CONTESTED STATE INCOME TAXES (FOR THE YEARS 1936-1938)
ACCRUED WHEN THEY WERE PAID IN 1940, AS CLAIMED BY THE ACCRUAL-BASIS
TAXPAYER, OR WHEN THE FINAL JUDGMENT UPHOLDING THEIR VALIDITY WAS
RENDERED IN 1942, AS CONTENDED BY THE GOVERNMENT.  SQUARELY CONTRARY TO
ITS CONTENTION HERE, THE GOVERNMENT, RELYING ON SECURITY MILLS CO. V.
COMMISSIONER, SUPRA, THERE CONTENDED THAT "SINCE THE TAXPAYER'S
ACCOUNTS WERE KEPT AND ITS TAX RETURNS MADE ON THE ACCRUAL BASIS, IT
COULD NOT TAKE ITS DEDUCTION FOR THE TAXES ...  PAID TO THE STATE  ...
UNTIL THE YEAR 1942, WHEN ITS SUIT FOR THEIR RETURN WAS FINALLY DECIDED
ADVERSELY TO IT."  ON THE FACTS OF THAT CASE, THE COURT OF CLAIMS HELD
THAT "THE GOVERNMENT WAS WRONG" IN THAT CONTENTION.  ALTHOUGH, IN FULL
CONSONANCE WITH THE SECURITY MILLS CASE, THE COURT OF CLAIMS SAID "ONE
IS NOT ENTITLED TO ACCRUE A DEBT OR OTHER LIABILITY WHICH IS ASSERTED
AGAINST HIM BUT WHICH HE DISPUTES AND LITIGATES, UNTIL THE LITIGATION
IS CONCLUDED," IT WENT ON TO SAY "BUT IF A LIABILITY IS ASSERTED
AGAINST HIM AND HE PAYS IT, THOUGH UNDER PROTEST, AND THOUGH HE
PROMPTLY BEGINS LITIGATION TO GET THE MONEY BACK, THE STATUS OF THE
LIABILITY IS THAT IT HAS BEEN DISCHARGED BY PAYMENT.  IT IS HARDLY
CONCEIVABLE THAT A LIABILITY ASSERTED AGAINST HIM, WHICH HE HAS
DISCHARGED BY PAYMENT, HAS NOT YET 'ACCRUED' WITHIN THE MEANING OF THE
TAX LAWS AND THE TERMINOLOGY OF ACCOUNTING.  ACCRUAL, FROM THE DEBTOR'S
STANDPOINT, PRECEDES PAYMENT, AND DOES NOT SURVIVE IT."  104 CT. CL.,
AT 494-495, 62 F. SUPP., AT 576.  AND AFTER POINTING TO THIS COURT'S
USE OF THE PHRASE "AND FAILED TO PAY" IN ITS HOLDING IN THE SECURITY
MILLS CASE THAT "SINCE THE TAXPAYER DENIED LIABILITY FOR, AND FAILED TO
PAY, THE TAX DURING THE TAXABLE YEAR 1935, IT WAS NOT IN A POSITION IN
ITS TAX ACCOUNTING TO TREAT THE GOVERNMENT'S CLAIM AS AN ACCRUED
LIABILITY," THE COURT OF CLAIMS CONCLUDED: "IN THE INSTANT CASE THE
TAXPAYER DENIED LIABILITY, BUT PAID.  WE THINK IT THEREBY 'ACCRUED' THE
TAXES AND INTEREST, IF ACCRUAL IS REQUISITE AT ALL, IN THE CASE OF THE
DEBTOR, WHEN ACTUAL PAYMENT HAS OCCURRED."  104 CT. CL., AT 495, 62 F.
SUPP., AT 576.    THE CONSOLIDATED EDISON CASE INVOLVED THE SAME
PARTIES, FACTS AND QUESTIONS AS THE PRESENT CASE, THOUGH IN RESPECT TO
EARLIER TAX YEARS.  ALTHOUGH RECOGNIZING THAT THIS COURT'S OPINIONS IN
SECURITY MILLS CO. V. COMMISSIONER, SUPRA, AND DIXIE PINE CO. V.
COMMISSIONER, SUPRA, HAD "SETTLED" THE LAW TO BE "THAT A TAXPAYER MAY
NOT ACCRUE AN EXPENSE WHEN HE IS DENYING LIABILITY AND REFUSING AND
CONTESTING ITS PAYMENT," THE COURT OF CLAIMS REJECTED, AS "NOT
NECESSARILY TRUE," THE TAXPAYER'S ARGUMENT "THAT THERE MUST THEREFORE
BE AN ADMISSION OR ABSENCE OF DENIAL OF LIABILITY BEFORE AN ITEM MAY BE
ACCRUED AND THAT THE PAYMENT OF THE LIABILITY WITHIN THE TAXABLE YEAR
HAS NO EFFECT ON ITS ACCRUAL SINCE PAYMENT WAS MADE UNDER PROTEST AND
LITIGATION WAS IMMEDIATELY STARTED TO OBTAIN A REPAYMENT"  (133 CT.
CL., AT 382, 135 F. SUPP., AT 844); AND, PURPORTING TO FOLLOW, BUT
SEEMINGLY DEPARTING FROM, ITS DECISION IN THE CHESTNUT SECURITIES CASE,
THE COURT CONCLUDED "THAT PAYMENT OF AN ITEM WHICH IS OTHERWISE
ACCRUABLE IN THE TAXABLE YEAR ACCRUES THE ITEM EVEN THOUGH PAYMENT IS
MADE UNDER PROTEST AND EVEN THOUGH LITIGATION IS STARTED WITHIN THE
TAXABLE YEAR TO OBTAIN REPAYMENT."  133 CT. CL., AT 383-384, 135 F.
SUPP., AT 855.  ON THAT CONCLUSION THE COURT RENDERED JUDGMENT FOR THE
GOVERNMENT. 

JUST WHAT THE COURT MEANT BY THE PHRASE WE HAVE ITALICIZED WAS NOT
EXPLAINED, BUT IT IS EVIDENT THAT IF THE TAX ITEM WAS "OTHERWISE
ACCRUABLE IN THE TAXABLE YEAR," PAYMENT - WHETHER OF A CHARACTER THAT
WOULD CONSTITUTE AN ADMISSION OF THE ASSERTED LIABILITY OR A MERE
DEPOSIT TO ENABLE CONTEST OF THE LIABILITY - CERTAINLY WOULD NOT RENDER
THE ITEM NON-ACCRUABLE; AND IF, IN THE ABSENCE OF PAYMENT, THE ITEM WAS
"OTHERWISE ACCRUABLE IN THE TAXABLE YEAR," PAYMENT WOULD BE IMMATERIAL,
OR AT LEAST UNNECESSARY, TO THE QUESTION OF ACCRUABILITY.  IT THUS
APPEARS THAT THE COURT'S JUDGMENT WAS CONTRARY TO ITS RULE IN THAT
CASE, FOR, ALTHOUGH IT REGARDED THE REMITTANCE AS "PAYMENT" OF THE
ASSERTED TAX LIABILITY, ADMITTEDLY THE CONTESTED PART OF THE TAX WAS
NOT "OTHERWISE ACCRUABLE IN THE TAXABLE YEAR." 

DISAGREEING WITH THE CONCLUSION OF THE COURT OF CLAIMS IN THE
CONSOLIDATED EDISON CASE, THE COURT OF APPEALS CONCLUDED, WE THINK
CORRECTLY, THAT THE QUESTION OF ACCRUABILITY OF THE TAX - APART FROM
THE ISSUE RESPECTING "PAYMENT" AND "SATISFACTION" - WAS GOVERNED BY THE
"ALL EVENTS" TEST ESTABLISHED BY THIS COURT IN UNITED STATES V.
ANDERSON, SUPRA (SEE NOTE 5), AS AMPLIFIED AND AFFIRMED IN DIXIE PINE
CO. V. COMMISSIONER, SUPRA, AND REAFFIRMED AS AMPLIFIED IN SECURITY
MILLS CO. V. COMMISSIONER, SUPRA.  SEE NOTES 6 AND 7. 

AS TO WHETHER RESPONDENT'S REMITTANCE OF THE FULL $100 TO THE CITY,
IN THE CIRCUMSTANCES OF THIS CASE, CONSTITUTED AN ADMISSION OF
LIABILITY FOR, AND A "PAYMENT" AND "SATISFACTION" OF, THE CONTESTED $15
OF THE ASSESSMENT, THE COURT OF APPEALS RECOGNIZED THAT THIS COURT'S
OPINIONS IN THE ANDERSON, DIXIE PINE AND SECURITY MILLS CASES REFER TO
THE FACT THAT "PAYMENT" OF THE TAXES SOUGHT TO BE DEDUCTED IN THOSE
CASES HAD NOT BEEN MADE BY THE TAXPAYERS, BUT IT THOUGHT, AND WE AGREE,
THAT THOSE REFERENCES WERE MADE ONLY FOR THE SAKE OF COMPLETE ACCURACY
TO AN IMPORTANT BUT, SO FAR AS THOSE CASES WERE CONCERNED, A COLLATERAL
MATTER, AND NOT TO THE DETERMINATIVE CONSIDERATIONS OF THOSE CASES,
WHICH WERE THE "ALL EVENTS" TEST AS THEY STATE IT. 

"PAYMENT" IS NOT A TALISMANIC WORD.  IT MAY HAVE MANY MEANINGS
DEPENDING ON THE SENSE AND CONTEXT IN WHICH IT IS USED.  AS CORRECTLY
OBSERVED BY THE COURT OF APPEALS, "A PAYMENT MAY CONSTITUTE A CAPITAL
EXPENDITURE, AN EXCHANGE OF ASSETS, A PREPAID EXPENSE, A DEPOSIT, OR A
CURRENT EXPENSE," AND "WHEN THE EXACT NATURE OF THE PAYMENT IS NOT
IMMEDIATELY ASCERTAINABLE BECAUSE IT DEPENDS ON SOME FUTURE EVENT, SUCH
AS THE OUTCOME OF LITIGATION, ITS TREATMENT FOR INCOME TAX PURPOSES
MUST AWAIT THAT EVENT."  279 F.2D, AT 156. 

OF COURSE, AN UNCONDITIONAL "PAYMENT" MADE BY A TAXPAYER IN APPARENT
"SATISFACTION" OF AN ASSERTED MATURED TAX LIABILITY IS, WITHOUT MORE,
PLAIN AND PERSUASIVE EVIDENCE, AT LEAST AGAINST THE TAXPAYER, THAT "ALL
THE EVENTS HAVE OCCURRED WHICH FIX THE AMOUNT OF THE TAX AND DETERMINE
THE LIABILITY OF THE TAXPAYER TO PAY IT," UNITED STATES V. ANDERSON,
SUPRA, AT 441, AND THAT THE ITEM SO PAID AND SATISFIED HAS ACCRUED. 

BUT WHERE, AS STIPULATED BY THE PARTIES IN THIS CASE, THE REMITTANCE
OR "PAYMENT" DID NOT ADMIT, BUT SPECIFICALLY DENIED, LIABILITY FOR, AND
WAS NOT INTENDED TO SATISFY, THE CONTESTED $15 OF THE ASSESSMENT, BUT
WAS, IN EFFECT, A MERE DEPOSIT, "IN THE NATURE OF A CASH BOND FOR THE
PAYMENT OF SO MUCH, IF ANY, OF THE CONTESTED TAXES AS MIGHT THEREAFTER
BE FOUND TO BE DUE" (ROSENMAN V. UNITED STATES, 323 U.S. 658, 662, AND
SEE LEWYT CORP. V. COMMISSIONER, 215 F.2D 518, 523 (C.A.2D CIR.)), AND
WAS MADE FOR THE SOLE PURPOSE OF STAYING - THERE BEING NO OTHER WAY TO
STAY - AN OTHERWISE POSSIBLE SEIZURE AND SALE OF THE PROPERTY FOR THE
CONTESTED TAX WHILE ITS VALIDITY WAS BEING HONESTLY AND DILIGENTLY
CONTESTED IN THE ONLY WAY ALLOWED BY THE LAW OF THE STATE, IT WILL NOT
DO TO SAY THAT THE TAXPAYER HAS MADE AN UNCONDITIONAL "PAYMENT" IN
APPARENT "SATISFACTION" OF THE CONTESTED PART OF AN ASSERTED MATURED
TAX LIABILITY, AND THEREBY RENDERED IT IMMEDIATELY ACCRUABLE. 

WE THEREFORE CONCLUDE THAT $10 OF THE CONTESTED $15 TAX LIABILITY
ACCRUED NOT IN THE YEAR OF THE REMITTANCE, BUT IN 1951 WHEN THE NEW
YORK COURT ENTERED ITS FINAL ORDER DETERMINING THAT LIABILITY; AND THAT
THE $5, FOR WHICH RESPONDENT WAS HELD NOT LIABLE BY THAT JUDGMENT AND
WHICH WAS RETURNED TO IT BY THE CITY, WAS NOT INCOME TO RESPONDENT IN
1951.  AFFIRMED. 

FN1  THE PROCEDURES ALLOWED BY THE LAWS OF NEW YORK FOR THE CONTEST
OF REAL PROPERTY TAXES ARE MORE FULLY SET FORTH IN CONSOLIDATED EDISON
CO. V. UNITED STATES, 133 CT. CL. 376, 378, 135 F. SUPP. 881, 882. 

FN2  RESPONDENT ASSERTS THAT THIS TREATMENT OF THE $15 IN ITS 1951
FEDERAL INCOME TAX RETURN WAS MADE UNDER COMPULSION OF THE
COMMISSIONER'S ERRONEOUS G.C.M. 25298, ISSUED DIRECTLY TO IT IN 1947
(1947-2 CUM. BULL.  39), SAYING, "A CONTESTED TAX LIABILITY ACCRUES NOT
LATER THAN TIME OF PAYMENT, NOTWITHSTANDING CONTINUATION OF CONTEST. 
THE ACCRUAL BASIS OF ACCOUNTING RELATES TO THE DEDUCTIBILITY OF UNPAID
ITEMS," AND THAT THE COMMISSIONER INSISTED UPON THAT TREATMENT, DESPITE
HIS MODIFICATION THEREOF IN MIM.  6444 (1949-2 CUM. BULL.  11), SAYING
IN PERTINENT PART, THAT "PAYMENT OF A CONTESTED TAX LIABILITY AS A
PREREQUISITE FOR APPEAL IS NOT DEDUCTIBLE UNDER G.C.M. 25298." 

FN3  THE ECONOMIC CONSEQUENCES TO THE PARTIES ARISE FROM THE FACT
THAT CORPORATE INCOME TAX RATES (NORMAL PLUS SURTAX) WERE INCREASED
FROM 38% IN 1946 TO 50 3/4% IN 1951, AND, IN THIS PARTICULAR INSTANCE,
MORE REVENUE WOULD BE PRODUCED BY TAKING THE DEDUCTION IN 1946-1950
THAN IN 1951.  THE TAXPAYER RECOGNIZES THAT, IF ITS POSITION BE
SUSTAINED, THE COMMISSIONER WILL HAVE ONE YEAR AFTER ENTRY OF FINAL
JUDGMENT HEREIN TO REAUDIT THE TAXPAYER'S 1946-1950 RETURNS AND TO
ASSESS DEFICIENCIES BASED UPON DEDUCTION OF THE $15 IN THOSE YEARS, IN
ACCORDANCE WITH THE PROVISIONS OF SECS. 1311-1315 OF THE INTERNAL
REVENUE CODE OF 1954. 

FN4  THE APPLICABLE STATUTES ARE SECS. 23(C), 41, 42, 43 AND 48 OF
THE INTERNAL REVENUE CODE OF 1939 (26 U.S.C. (1952 ED.), SECS. 23(C),
41, 42, 43, 48).  THESE PROVISIONS ARE THE SAME AS THEIR COUNTERPARTS
IN PRIOR REVENUE ACTS AND IN THE INTERNAL REVENUE CODE OF 1954. 
INASMUCH AS THOSE STATUTES ARE NOT REALLY IN CONTEST IN THIS CASE, IT
WOULD SERVE NO USEFUL PURPOSE EVEN TO ABSTRACT THEM HERE. 

FN5  IN THE ANDERSON CASE, THIS COURT DECLARED THE SO-CALLED "ALL
EVENTS" TEST AS FOLLOWS: "IN A TECHNICAL LEGAL SENSE IT MAY BE ARGUED
THAT A TAX DOES NOT ACCRUE UNTIL IT HAS BEEN ASSESSED AND BECOMES DUE;
BUT IT IS ALSO TRUE THAT IN ADVANCE OF THE ASSESSMENT OF A TAX, ALL THE
EVENTS MAY OCCUR WHICH FIX THE AMOUNT OF THE TAX AND DETERMINE THE
LIABILITY OF THE TAXPAYER TO PAY IT.  IN THIS RESPECT, FOR PURPOSES OF
ACCOUNTING AND OF ASCERTAINING TRUE INCOME FOR A GIVEN ACCOUNTING
PERIOD, THE MUNITIONS TAX HERE IN QUESTION DID NOT STAND ON ANY
DIFFERENT FOOTING THAN OTHER ACCRUED EXPENSES APPEARING ON APPELLEE'S
BOOKS.  IN THE ECONOMIC AND BOOKKEEPING SENSE WITH WHICH THE STATUTE
AND TREASURY DECISION WERE CONCERNED, THE TAXES HAD ACCRUED."  269
U.S., AT 441. 

FN6  IN THE DIXIE PINE CASE, THIS COURT REAFFIRMED THE "ALL EVENTS"
TEST AS FOLLOWS:  "IT HAS LONG BEEN HELD THAT IN ORDER TRULY TO REFLECT
THE INCOME OF A GIVEN YEAR, ALL THE EVENTS MUST OCCUR IN THAT YEAR
WHICH FIX THE AMOUNT AND THE FACT OF THE TAXPAYER'S LIABILITY FOR ITEMS
OF INDEBTEDNESS DEDUCTED THOUGH NOT PAID; AND THIS CANNOT BE THE CASE
WHERE THE LIABILITY IS CONTINGENT AND IS CONTESTED BY THE TAXPAYER." 
320 U.S., AT 519. 

IN THE SECURITY MILLS CASE, THIS COURT REAFFIRMED THAT TEST AS
FOLLOWS:  "IT IS SETTLED BY MANY DECISIONS THAT A TAXPAYER MAY NOT
ACCRUE AN EXPENSE THE AMOUNT OF WHICH IS UNSETTLED OR THE LIABILITY FOR
WHICH IS CONTINGENT, AND THIS PRINCIPLE IS FULLY APPLICABLE TO A TAX,
LIABILITY FOR WHICH THE TAXPAYER DENIES, AND PAYMENT WHEREOF HE IS
CONTESTING."  321 U.S., AT 284. 

FN7  IN THE SECURITY MILLS CASE, AFTER SAYING "THAT A TAXPAYER MAY
NOT ACCRUE AN EXPENSE THE AMOUNT OF WHICH IS UNSETTLED OR THE LIABILITY
FOR WHICH IS CONTINGENT," THE COURT CONCLUDED THAT "SINCE THE TAXPAYER
DENIED LIABILITY FOR, AND FAILED TO PAY, THE TAX DURING THE TAXABLE
YEAR 1935, IT WAS NOT IN A POSITION IN ITS TAX ACCOUNTING TO TREAT THE
TAX CLAIM AS AN ACCRUED LIABILITY."  321 U.S., AT 284. 
..END :






BELL V. UNITED STATES 366 U.S. 393 


NO. 92.  ARGUED JANUARY 11, 1961 - DECIDED MAY 22, 1961 - CT. CL. - ,
181 F. SUPP. 668, REVERSED AND REMANDED. 


PETITIONERS WERE ENLISTED MEN IN THE UNITED STATES ARMY WHO WERE
CAPTURED DURING THE HOSTILITIES IN KOREA IN 1950 AND 1951.  IN THE
PRISON CAMPS TO WHICH THEY WERE TAKEN THEY CONSORTED, FRATERNIZED AND
COOPERATED WITH THEIR CAPTORS AND BEHAVED WITH UTTER DISLOYALTY TO
THEIR COMRADES AND TO THEIR COUNTRY.  AFTER THE KOREAN ARMISTICE IN THE
SUMMER OF 1953, THEY REFUSED REPATRIATION AND WENT TO COMMUNIST CHINA. 
THEY WERE DISHONORABLY DISCHARGED FROM THE ARMY IN 1954.  IN 1955 THEY
RETURNED TO THE UNITED STATES AND FILED CLAIMS FOR ACCRUED PAY AND
ALLOWANCES, WHICH WERE DENIED ADMINISTRATIVELY.  THEY THEN SUED IN THE
COURT OF CLAIMS FOR PAY AND ALLOWANCES FROM THE TIME OF THEIR CAPTURE
TO THE DATE OF THEIR DISCHARGE FROM THE ARMY.  HELD:  UNDER 37 U.S.C.
SEC. 242 AND THE MISSING PERSONS ACT, PETITIONERS WERE ENTITLED TO THE
PAY AND ALLOWANCES THAT ACCRUED DURING THEIR DETENTION AS PRISONERS OF
WAR; BUT NO OPINION IS EXPRESSED AS TO THEIR RIGHTS TO PAY FOR THE
PERIOD BETWEEN THE KOREAN ARMISTICE AND THEIR ADMINISTRATIVE DISCHARGE,
SINCE THAT QUESTION WAS NOT SEPARATELY RAISED OR ARGUED IN THIS COURT. 
PP. 394-416. 

(A)  REFUSAL TO PAY PETITIONERS CANNOT BE JUSTIFIED UNDER SEC. 9A OF
THE ACT OF 1939, WHICH MADE IT UNLAWFUL TO PAY FROM APPROPRIATED FUNDS
COMPENSATION TO ANY EMPLOYEE OF THE FEDERAL GOVERNMENT WHO WAS A MEMBER
OF ANY ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE GOVERNMENT,
SINCE THAT STATUTE WAS REPEALED MORE THAN A YEAR BEFORE THE ARMY RELIED
UPON IT IN REFUSING TO PAY PETITIONERS.   PP. 398-400. 

(B)  REFUSAL TO PAY PETITIONERS CANNOT BE SUSTAINED ON THE PRINCIPLE
OF CONTRACT LAW THAT ONE WHO WILLFULLY COMMITS A MATERIAL BREACH OF A
CONTRACT CAN RECOVER NOTHING UNDER IT, SINCE COMMON-LAW RULES GOVERNING
PRIVATE CONTRACTS HAVE NO PLACE IN THE AREA OF MILITARY PAY, WHICH IS
GOVERNED ENTIRELY BY STATUTE.  PP. 401-404. 

(C)  UNDER THE PLAIN LANGUAGE OF 37 U.S.C. SEC. 242 AND THE MISSING
PERSONS ACT, A SERVICEMAN CAPTURED BY THE ENEMY AND THUS UNABLE TO
PERFORM HIS NORMAL DUTIES IS NONETHELESS ENTITLED TO HIS PAY.  PP. 397
398, 404-405, 409-410. 

(D)  REFUSAL TO PAY PETITIONERS CANNOT BE JUSTIFIED UNDER THE MISSING
PERSONS ACT, EITHER ON THE GROUND THAT THEY WERE NO LONGER "IN THE
ACTIVE SERVICE" OR ON THE GROUND THAT THEY HAD BEEN "OFFICIALLY
DETERMINED ABSENT FROM THEIR POSTS OF DUTY WITHOUT AUTHORITY," SINCE
THERE HAS NEVER BEEN ANY OFFICIAL ADMINISTRATIVE DETERMINATION THAT
PETITIONERS WERE NO LONGER IN THE ACTIVE SERVICE OR THAT THEY WERE
ABSENT FROM THEIR POSTS OF DUTY WITHOUT AUTHORITY DURING THE PERIOD
HERE IN QUESTION.  PP. 404-414. 

(E)  NO OPINION IS EXPRESSED AS TO PETITIONERS' PAY RIGHTS FOR THE
PERIOD BETWEEN THE KOREAN ARMISTICE AND THEIR DISCHARGES FROM THE ARMY,
SINCE THAT QUESTION WAS NOT SEPARATELY RAISED OR ARGUED
ADMINISTRATIVELY, IN THE COURT BELOW OR IN THIS COURT.  PP. 414-415. 

BELL ET AL. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE ENLISTED MEN IN THE UNITED STATES ARMY WHO WERE
CAPTURED DURING THE HOSTILITIES IN KOREA IN 1950 AND 1951.  IN THE
PRISON CAMPS TO WHICH THEY WERE TAKEN THEY BEHAVED WITH UTTER
DISLOYALTY TO THEIR COMRADES AND TO THEIR COUNTRY.  AFTER THE KOREAN
ARMISTICE IN THE SUMMER OF 1953 THEY REFUSED REPATRIATION AND WENT TO
COMMUNIST CHINA.  THEY WERE FORMALLY DISCHARGED FROM THE ARMY IN 1954. 
IN 1955 THEY RETURNED TO THE UNITED STATES.  LATER THAT YEAR THEY FILED
CLAIMS WITH THE DEPARTMENT OF THE ARMY FOR ACCRUED PAY AND ALLOWANCES. 
WHEN THESE CLAIMS WERE DENIED THEY BROUGHT THE PRESENT ACTION IN THE
COURT OF CLAIMS FOR PAY AND ALLOWANCES FROM THE TIME OF THEIR CAPTURE
TO THE DATE OF THEIR DISCHARGE FROM THE ARMY.  (FN1)  THE COURT OF
CLAIMS DECIDED AGAINST THEM, STATING THAT "NEITHER THE LIGHT OF REASON
NOR THE LOGIC OF ANALYSIS OF THE UNDISPUTED FACTS OF RECORD CAN
POSSIBLY JUSTIFY THE GRANTING OF A JUDGMENT FAVORABLE TO THESE
PLAINTIFFS."  181 F. SUPP. 668, 674.  JUDGE MADDEN DISSENTED.  (FN2)
WE GRANTED CERTIORARI TO CONSIDER A SEEMINGLY IMPORTANT STATUTORY
QUESTION WITH RESPECT TO MILITARY PAY.  363 U.S. 837. 

THE COURT OF CLAIMS MADE DETAILED FINDINGS OF FACT WITH RESPECT TO
THE PETITIONERS' CONDUCT AS PRISONERS OF WAR, BASED UPON A STIPULATION
FILED BY THE PARTIES.  (FN3)  THESE CIRCUMSTANCES NEED NOT BE SET OUT
IN MINUTE DETAIL.  THEY ARE ADEQUATELY SUMMARIZED IN THE OPINION OF THE
COURT OF CLAIMS, AS FOLLOWS: 

"DURING THE PERIOD OF THEIR CONFINEMENT EACH OF THE THREE PLAINTIFFS
BECAME MONITORS FOR THE 'FORCED STUDY GROUPS,' THE SESSIONS OF WHICH
THE PRISONERS WERE COMPELLED TO ATTEND.  ARMED GUARDS ATTENDED THESE
SESSIONS.  THE PROGRAMS INCLUDED LECTURES PICTURING WHAT WERE DECLARED
TO BE THE BAD ASPECTS OF LIFE IN THE UNITED STATES AS CONTRASTED WITH
IDYLLIC LIFE UNDER COMMUNISM.  AS MONITORS, THEY PROCURED AND
DISTRIBUTED PROPAGANDA LITERATURE, AND THREATENED TO TURN IN NAMES OF
ANY PRISONERS WHO REFUSED TO READ AND DISCUSS FAVORABLY THESE
PROPAGANDA HANDOUTS. 

"EACH OF THE PLAINTIFFS MADE TAPE RECORDINGS WHICH WERE USED AS
BROADCASTS AND OVER THE CAMP PUBLIC ADDRESS SYSTEM.  EACH OF THEM WORE
CHINESE UNIFORMS AND WERE PERMITTED TO ATTEND MEETINGS OUTSIDE THE
CAMP.  THE DETAILS OF THE PLAINTIFFS' CONSORTING, FRATERNIZING AND
COOPERATING WITH THEIR CAPTORS AND THE DEVIOUS WAYS IN WHICH THEY
SOUGHT FAVORS FOR THEMSELVES, THUS CAUSING HARDSHIP AND SUFFERING TO
THE OTHER PRISONERS, ARE SET OUT IN OUR FINDINGS  ...  . 

"TWO OF BELL'S RECORDINGS WERE BROADCAST OVER THE PEIPING RADIO,
STATING AMONG OTHER THINGS THAT ON THE ORDERS OF HIS PLATOON LEADER,
HIS MEN HAD KILLED NORTH KOREAN PRISONERS OF WAR, AND THAT PRESIDENT
TRUMAN WAS A WARMONGER.  IN WRITTEN ARTICLES FOR THE CAMP NEWSPAPER HE
ALLEGED THAT AMERICAN TROOPS HAD COMMITTED ATROCITIES AND HE PERSONALLY
HAD BEEN ORDERED TO KILL WOMEN AND CHILDREN AND NOT TO TAKE PRISONERS
OF WAR, AND THAT IF GIVEN THE OPPORTUNITY HE WOULD RUN A TANK OVER THE
PRESIDENT'S BODY. 

"BELL WAS PAID MONEY TO WRITE THESE ARTICLES.  HE ALSO DELIVERED
LECTURES BEFORE HIS COMPANY AND TO THE CAMP ON AMERICAN AGGRESSION.  HE
APPEARED VOLUNTARILY IN A MOTION PICTURE AND APPEARED IN BI-MONTHLY
PLAYS.  HE STATED THAT IF GIVEN A WEAPON HE WOULD FIGHT AGAINST THE
UNITED STATES.  HE SOLD FOOD INTENDED FOR THE SICK TO OTHER PRISONERS
OF WAR.  BY MAKING REPORTS TO THE CHINESE, HE CAUSED ONE MAN TO BE
BAYONETTED AND OTHERS TO BE PLACED IN SOLITARY CONFINEMENT. 

"COWART DID MANY SIMILAR THINGS, WROTE PROPAGANDA ARTICLES ACCUSING
AMERICAN SOLDIERS OF ATROCITIES AND OF USING GERM WARFARE.  HE DREW
POSTERS AND CARTOONS FOR THE ENEMY, ACTED IN PLAYS, WALKED AND TALKED
WITH THE CHINESE OFFICERS, GUARDS AND INTERPRETERS, LIVED PART OF THE
TIME AT CHINESE REGIMENTAL HEADQUARTERS, STATED HE HATED AMERICA,
DESIRED TO STUDY IN CHINA AND TO RETURN TO THE UNITED STATES IN FIVE
YEARS TO HELP IN THE OVERTHROW OF THE GOVERNMENT. 

"GRIGGS DID MANY SIMILAR THINGS, ATTENDED ENEMY PARTIES, VISITED
CHINESE HEADQUARTERS FREQUENTLY, REFERRED TO THE CHINESE AS COMRADES,
WAS ACCORDED SPECIAL PRIVILEGES, MADE BROADCASTS, SIGNED LEAFLETS,
WROTE ARTICLES ACCUSING THE AMERICAN SOLDIERS OF ATROCITIES AND
DECLARED THE UNITED STATES HAD USED GERM WARFARE." 

AS STATED IN THEIR BRIEF, THE PETITIONERS "DO NOT ADMIT TO THE
ALLEGED ACTS OF DISHONOR CONTAINED IN THE STIPULATION AND THE FINDINGS
OF FACT, BUT RATHER DEMUR TO THEM ON THE GROUNDS THAT SUCH FACTS ARE
IRRELEVANT AND IMMATERIAL IN A CIVIL ACTION FOR MILITARY PAY PROVIDED
BY STATUTE."  THE STATUTE UPON WHICH THE PETITIONERS RELY IS AN ANCIENT
ONE.  IT WAS FIRST ENACTED IN 1814 AND HAS BEEN RE-ENACTED MANY TIMES. 
IT PROVIDES: 

"EVERY NONCOMMISSIONED OFFICER AND PRIVATE OF THE REGULAR ARMY, AND
EVERY OFFICER, NONCOMMISSIONED OFFICER, AND PRIVATE OF ANY MILITIA OR
VOLUNTEER CORPS IN THE SERVICE OF THE UNITED STATES WHO IS CAPTURED BY
THE ENEMY, SHALL BE ENTITLED TO RECEIVE DURING HIS CAPTIVITY,
NOTWITHSTANDING THE EXPIRATION OF HIS TERM OF SERVICE, THE SAME PAY,
SUBSISTENCE, AND ALLOWANCE TO WHICH HE MAY BE ENTITLED WHILE IN THE
ACTUAL SERVICE OF THE UNITED STATES; BUT THIS PROVISION SHALL NOT BE
CONSTRUED TO ENTITLE ANY PRISONER OF WAR OF SUCH MILITIA CORPS TO ANY
PAY OR COMPENSATION AFTER THE DATE OF HIS PAROLE, EXCEPT THE TRAVELING
EXPENSES ALLOWED BY LAW."  37 U.S.C. SEC. 242.  (FN4) 

ALTHOUGH THE PLAIN LANGUAGE OF THIS LAW APPEARS TO ENTITLE THE
PETITIONERS TO THEIR ARMY PAY AND ALLOWANCES DURING THEIR IMPRISONMENT
IN KOREA, THE GOVERNMENT HAS URGED VARIOUS GROUNDS UPON WHICH WE SHOULD
HOLD THAT THE PROVISIONS OF THE STATUTE ARE INAPPLICABLE.  WE HAVE
CONCLUDED THAT NONE OF THE THEORIES ADVANCED BY THE GOVERNMENT CAN
SERVE AS A VALID BASIS TO CIRCUMVENT THE UNAMBIGUOUS FINANCIAL
OBLIGATION WHICH THE LAW IMPOSES. 

THE ARMY'S REFUSAL TO PAY THE PETITIONERS WAS BASED UPON AN
ADMINISTRATIVE DETERMINATION THAT ALL PRISONERS OF WAR WHO HAD DECLINED
REPATRIATION AFTER THE KOREAN ARMISTICE "ADVOCATE, OR ARE MEMBERS OF AN
ORGANIZATION WHICH ADVOCATES, THE OVERTHROW OF THE UNITED STATES
GOVERNMENT BY FORCE OR VIOLENCE."  (FN5)  IN REFUSING TO HONOR THE
PETITIONERS' CLAIMS UPON THIS GROUND, THE ARMY WAS APPARENTLY RELYING
UPON A STATUTE ENACTED IN 1939 WHICH MADE IT UNLAWFUL TO PAY FROM FUNDS
APPROPRIATED BY ANY ACT OF CONGRESS THE COMPENSATION OF "ANY PERSON
EMPLOYED IN ANY CAPACITY BY ANY AGENCY OF THE FEDERAL GOVERNMENT" WHO
WAS A MEMBER OF "ANY POLITICAL PARTY OR ORGANIZATION WHICH ADVOCATES
THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT IN THE UNITED
STATES."  (FN6)  THAT THIS STATUTE WAS THE BASIS OF THE ARMY'S DECISION
IS EVIDENT NOT ONLY IN THE LANGUAGE EMPLOYED IN REJECTING THE
PETITIONERS' DEMANDS, BUT ALSO IN THE PLEADINGS FILED IN THE COURT OF
CLAIMS.  (FN7) WE NEED NOT, HOWEVER, NOW DECIDE THE APPLICABILITY OF
THIS STATUTE TO MEMBERS OF THE ARMED FORCES, FOR THE REASON THAT THE
STATUTE WAS REPEALED MORE THAN A YEAR BEFORE THE ARMY RELIED UPON IT IN
REFUSING TO PAY THE PETITIONERS.  (FN8) 

ALTHOUGH THIS WAS THE ONLY GROUND EVER ADVANCED FOR THE
ADMINISTRATIVE DENIAL OF THE PETITIONERS' CLAIMS, THE GOVERNMENT'S
BRIEF IN THIS COURT, FOR UNDERSTANDABLE REASONS, DOES NOT EVEN MENTION
THIS REPEALED STATUTE.  INSTEAD, THE GOVERNMENT NOW RELIES UPON OTHER
GROUNDS TO AVOID THE PROVISIONS OF 37 U.S.C. SEC. 242.  IT SAYS THAT
THE PETITIONERS VIOLATED THEIR OBLIGATION OF FAITHFUL SERVICE, (FN9)
AND POINTS TO THE PRINCIPLE OF CONTRACT LAW THAT "ONE WHO WILFULLY
COMMITS A MATERIAL BREACH OF A CONTRACT CAN RECOVER NOTHING UNDER IT.
4 WILLISTON, CONTRACTS (1936 ED.)  SEC.  1022, PP. 2823-4; 5 WILLISTON,
CONTRACTS (1936 ED.)  SEC.  1477; 5 CORBIN, CONTRACTS (1951 ED.)  SEC. 
1127, PP. 564-5, SEE ALSO RESTATEMENT CONTRACTS, SEC. 357(1)(A)." 

IN ACCORD WITH THIS PRINCIPLE, THE GOVERNMENT ARGUES THAT IN THE
MISSING PERSONS ACT, (FN10) A STATUTE FIRST ENACTED IN 1942, (FN11)
CONGRESS PROVIDED A STATUTORY BASIS FOR DENYING THE PETITIONERS'
CLAIMS.  WE DO NOT SO CONSTRUE THAT STATUTE. 

PRELIMINARILY, IT IS TO BE OBSERVED THAT COMMON-LAW RULES GOVERNING
PRIVATE CONTRACTS HAVE NO PLACE IN THE AREA OF MILITARY PAY.  A
SOLDIER'S ENTITLEMENT TO PAY IS DEPENDENT UPON STATUTORY RIGHT.  IN THE
ARMED FORCES, AS EVERYWHERE ELSE, THERE ARE GOOD MEN AND RASCALS,
COURAGEOUS MEN AND COWARDS, HONEST MEN AND CHEATS.  IF A SOLDIER'S
CONDUCT FALLS BELOW A SPECIFIED LEVEL HE IS SUBJECT TO DISCIPLINE, AND
HIS PUNISHMENT MAY INCLUDE THE FORFEITURE OF FUTURE BUT NOT OF ACCRUED
PAY.  (FN12)  BUT A SOLDIER WHO HAS NOT RECEIVED SUCH A PUNISHMENT FROM
A DULY CONSTITUTED COURT-MARTIAL IS ENTITLED TO THE STATUTORY PAY AND
ALLOWANCES OF HIS GRADE AND STATUS, HOWEVER IGNOBLE A SOLDIER HE MAY
BE.  (FN13) 

THIS BASIC PRINCIPLE HAS ALWAYS BEEN RECOGNIZED.  IT HAS BEEN
REFLECTED THROUGHOUT OUR HISTORY IN NUMEROUS COURT DECISIONS AND IN THE
OPINIONS OF ATTORNEYS GENERAL AND JUDGE ADVOCATES GENERAL.  "ENLISTMENT
IS A CONTRACT; BUT IT IS ONE OF THOSE CONTRACTS WHICH CHANGES THE
STATUS; AND, WHERE THAT IS CHANGED, NO BREACH OF THE CONTRACT DESTROYS
THE NEW STATUS OR RELIEVES FROM THE OBLIGATIONS WHICH ITS EXISTENCE
IMPOSES  ...  .  BY ENLISTMENT THE CITIZEN BECOMES A SOLDIER.  HIS
RELATIONS TO THE STATE AND THE PUBLIC ARE CHANGED.  HE ACQUIRES A NEW
STATUS, WITH CORRELATIVE RIGHTS AND DUTIES; AND ALTHOUGH HE MAY VIOLATE
HIS CONTRACT OBLIGATIONS, HIS STATUS AS A SOLDIER IS UNCHANGED."  IN RE
GRIMLEY, 137 U.S. 147, 151, 152. 

ALMOST A HUNDRED YEARS AGO ATTORNEY GENERAL HOAR RENDERED AN OPINION
TO THE SECRETARY OF WAR REGARDING THE RIGHT TO PAY OF A MAJOR HEROD,
WHO HAD BEEN "CHARGED WITH MURDER, ARRESTED, TRIED BY A COURT-MARTIAL,
AND SENTENCED TO BE HUNG."  THE ATTORNEY GENERAL STATED: 

"IT WAS NOT EXPRESSLY A PART OF THE SENTENCE THAT HEROD SHOULD
FORFEIT HIS PAY FROM THE DATE OF HIS ARREST, AND I KNOW OF NO STATUTE
IMPOSING A FORFEITURE OF PAY FROM THE DATE OF ARREST IN A CASE LIKE
THIS OF HEROD'S.  THE SENTENCE THAT HE BE HUNG NECESSARILY IMPLIED A
DISMISSAL FROM THE SERVICE, BUT NOT, AS IT SEEMS TO ME, THE FORFEITURE
OF BACK PAY.  I CAN FIND NO AUTHORITY FOR THE OPINION OF THE
COMPTROLLER THAT, AS HEROD WAS WITHDRAWN FROM ACTUAL MILITARY SERVICE
BY HIS ARREST MADE ON ACCOUNT OF A CRIME COMMITTED BY HIM, ON THE
GENERAL PRINCIPLE THAT PAY FOLLOWS SERVICES, HE SHOULD NOT BE PAID FOR
THE TIME HE WAS UNDER ARREST.  THE MONTHLY PAY OF OFFICERS OF THE ARMY
IS PRESCRIBED BY STATUTE, AND SO LONG AS A PERSON IS AN OFFICER OF THE
ARMY HE IS ENTITLED TO RECEIVE THE PAY BELONGING TO THE OFFICE, UNLESS
HE HAS FORFEITED IT IN ACCORDANCE WITH THE PROVISIONS OF LAW, WHETHER
HE HAS ACTUALLY PERFORMED MILITARY SERVICE OR NOT."  13 OP. ATTY. GEN.
103, 104. 

A SIMILAR OPINION WAS RENDERED BY ATTORNEY GENERAL ALPHONSO TAFT A
FEW YEARS LATER.  HE REJECTED THE THEORY OF THE SECOND COMPTROLLER OF
THE TREASURY THAT "IF THE MAN, BY HIS MISCONDUCT AND NECESSARY
WITHDRAWAL FROM SERVICE, DOES NOT PERFORM HIS PART OF THE CONTRACT, THE
GOVERNMENT CANNOT BE HELD TO THE FULFILLMENT OF ITS PART THEREOF."  THE
ATTORNEY GENERAL SAID: 

"THE COMPTROLLER HAS, I THINK, MISCONCEIVED THE TRUE BASIS OF THE
RIGHT TO MILITARY PAY  ...  . IN THE NAVAL, AS IN THE MILITARY SERVICE,
THE RIGHT TO COMPENSATION DOES NOT DEPEND UPON, NOR IS IT CONTROLLED
BY, 'GENERAL PRINCIPLES OF LAW'; IT RESTS UPON, AND IS GOVERNED BY,
CERTAIN STATUTORY PROVISIONS OR REGULATIONS MADE IN PURSUANCE THEREOF,
WHICH SPECIALLY APPLY TO SUCH SERVICE.  THESE FIX THE PAY TO WHICH
OFFICERS AND MEN BELONGING TO THE NAVY ARE ENTITLED; AND THE RULE TO BE
DEDUCED THEREFROM IS THAT BOTH OFFICERS AND MEN BECOME ENTITLED TO THE
PAY THUS FIXED SO LONG AS THEY REMAIN IN THE NAVY, WHETHER THEY
ACTUALLY PERFORM SERVICE OR NOT, UNLESS THEIR RIGHT THERETO IS
FORFEITED OR LOST IN SOME ONE OF THE MODES PRESCRIBED IN THE PROVISIONS
OR REGULATIONS ADVERTED TO."  15 OP. ATTY. GEN. 175, 176. 

THIS PRINCIPLE HAS RECEIVED CONSISTENT RECOGNITION IN THE COURT OF
CLAIMS.  "IT WOULD, WE THINK, BE AN ANOMALOUS PROCEEDING TO PERMIT
RESORT TO THE COURTS TO ASCERTAIN WHETHER, UNDER ALL THE VARIOUS
PROVISIONS WITH RESPECT TO PAY AND ALLOWANCES OF OFFICERS AND MEN OF
THE ARMY, NAVY, AND MARINE CORPS, INVESTIGATIONS SHOULD OBTAIN TO
DETERMINE AS A MATTER OF FACT WHETHER THE SOLDIER INVOLVED HAD BY
CONSCIENTIOUS SERVICE EARNED WHAT THE STATUTES ALLOW HIM."  WHITE V.
UNITED STATES, 72 CT. CL. 459, 468.  "THE MERE FACT THAT AN OFFICER OR
SOLDIER IS UNDER CHARGES DOES NOT DEPRIVE HIM OF HIS PAY AND
ALLOWANCES,  ...  SUCH FORFEITURE CAN ONLY BE IMPOSED BY THE SENTENCE
OF A LAWFUL COURT-MARTIAL."  WALSH V. UNITED STATES, 43 CT. CL. 225,
231.  (FN14) 

THE STATUTE UPON WHICH THE PETITIONERS RELY APPLIES THIS SAME
PRINCIPLE TO A SPECIALIZED SITUATION.  A SERVICEMAN CAPTURED BY THE
ENEMY AND THUS UNABLE TO PERFORM HIS NORMAL DUTIES IS NONETHELESS
ENTITLED TO HIS PAY.  THE RULE HAS COMMANDED UNQUESTIONED ADHERENCE
THROUGHOUT OUR HISTORY, AS TWO CASES WILL SUFFICE TO ILLUSTRATE.    IN
1807 A SAILOR NAMED JOHN STRAUGHAN WAS A MEMBER OF THE CREW OF THE
AMERICAN FRIGATE CHESAPEAKE.   AFTER THAT VESSEL'S ILL-STARRED
ENGAGEMENT WITH THE BRITISH MAN-OF-WAR LEOPARD OFF HAMPTON ROADS,
STRAUGHAN WAS TAKEN ABOARD THE LEOPARD AND IMPRESSED INTO SERVICE IN
THE BRITISH NAVY.  THERE HE SERVED FOR FIVE YEARS AND NINE DAYS BEFORE
HE FINALLY WAS REPATRIATED.  YEARS LATER HIS WIDOW SUED FOR HIS PAY AND
RATIONS AS A MEMBER OF THE UNITED STATES NAVY DURING THE PERIOD HE HAD
BEEN HELD BY THE BRITISH.  THE COURT OF CLAIMS RULED THAT, EVEN THOUGH
WE HAD NOT BEEN AT WAR IN 1807, THE CHESAPEAKE HAD NEVERTHELESS BEEN
"TAKEN BY AN ENEMY," AND THAT STRAUGHAN'S WIDOW WAS ENTITLED TO THE
UNITED STATES NAVY PAY AND ALLOWANCES THAT HAD ACCRUED WHILE HE WAS
SERVING WITH THE BRITISH.  STRAUGHAN V. UNITED STATES, 1 CT. CL. 324. 
(FN15) 

IN OCTOBER, 1863, A LIEUTENANT IN THE UNION ARMY NAMED HENRY JONES
WAS TAKEN PRISONER BY CONFEDERATE GUERRILLAS NEAR ELK RUN, VIRGINIA. 
JONES WAS CONFINED IN LIBBY PRISON UNTIL MARCH 1, 1865, WHEN HE WAS
EXCHANGED AND RETURNED TO THE UNION LINES.  UPON HIS RETURN HE FOUND
THAT HE HAD BEEN ADMINISTRATIVELY DISMISSED FROM THE SERVICE IN
NOVEMBER, 1863, BECAUSE HE HAD BEEN IN DISOBEDIENCE OF ORDERS AT THE
TIME OF HIS CAPTURE.  WHEN THE ARMY FOR THAT REASON REFUSED HIS DEMAND
FOR PAY AND ALLOWANCES, HE FILED SUIT IN THE COURT OF CLAIMS.  THE
COURT ENTERED JUDGMENT IN HIS FAVOR, STATING THAT "THE CONTRARY WOULD
BE TO HOLD THAT AN EXECUTIVE DEPARTMENT COULD ANNUL AND DEFY AN ACT OF
CONGRESS AT ITS PLEASURE."  JONES V. UNITED STATES, 4 CT. CL. 197,
203. 

IT IS AGAINST THIS BACKGROUND THAT WE TURN TO THE GOVERNMENT'S
CONTENTION THAT THE MISSING PERSONS ACT AUTHORIZED THE ARMY TO REFUSE
TO PAY THE PETITIONERS THEIR STATUTORY PAY AND ALLOWANCES IN THIS
CASE.  THE PROVISIONS OF THE ACT WHICH THE GOVERNMENT DEEMS PERTINENT
ARE SET OUT IN THE MARGIN.  (FN16)  ORIGINALLY ENACTED IN 1942 AS
TEMPORARY LEGISLATION, (FN17) THE ACT WAS AMENDED AND REENACTED SEVERAL
TIMES, (FN18) AND FINALLY WAS MADE PERMANENT IN 1957.  (FN19)  SO FAR
AS RELEVANT HERE, THIS LEGISLATION PROVIDES THAT ANY PERSON IN ACTIVE
SERVICE IN THE ARMY "WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A
STATUS OF  ...  CAPTURED BY A HOSTILE FORCE" IS ENTITLED TO PAY AND
ALLOWANCES; THAT "THERE SHALL BE NO ENTITLEMENT TO PAY AND ALLOWANCES
FOR ANY PERIOD DURING WHICH SUCH PERSON MAY BE OFFICIALLY DETERMINED
ABSENT FROM HIS POST OF DUTY WITHOUT AUTHORITY"; THAT THE SECRETARY OF
THE ARMY OR HIS DESIGNATED SUBORDINATE SHALL HAVE AUTHORITY TO MAKE ALL
DETERMINATIONS NECESSARY IN THE ADMINISTRATION OF THE ACT, AND FOR
PURPOSES OF THE ACT DETERMINATIONS SO MADE AS TO ANY STATUS DEALT WITH
BY THE ACT SHALL BE CONCLUSIVE. 

WE ARE ASKED FIRST TO HOLD THAT "SINCE THE MISSING PERSONS ACT IS
LATER IN TIME, IS COMPREHENSIVE IN SCOPE, AND INCLUDES WITHIN ITS
PROVISIONS THE WHOLE SUBJECT MATTER OF R.S. 1288 (THE STATUTE UPON
WHICH THE PETITIONERS RELY), ANY INCONSISTENCY OR REPUGNANCY BETWEEN
THE TWO STATUTES SHOULD BE RESOLVED IN FAVOR OF THE MISSING PERSONS
ACT."  THIS STEP HAVING BEEN TAKEN, WE ARE ASKED TO DECIDE THAT THE
PETITIONERS, BECAUSE OF THEIR BEHAVIOR AFTER THEIR CAPTURE, WERE NO
LONGER IN THE "ACTIVE SERVICE IN THE ARMY  ...  OF THE UNITED STATES,"
AND THAT THEY WERE THEREFORE NOT COVERED BY THE ACT.  IT IS ALSO
SUGGESTED, ALTERNATIVELY, THAT THE SECRETARY OF THE ARMY MIGHT HAVE
DETERMINED THAT EACH OF THE PETITIONERS AFTER CAPTURE WAS "ABSENT FROM
HIS POST OF DUTY WITHOUT AUTHORITY," AND, THEREFORE, NOT ENTITLED TO
PAY AND ALLOWANCES UNDER THE ACT.  WE CAN FIND NO SUPPORT FOR THESE
CONTENTIONS IN THE LANGUAGE OF THE STATUTE, IN ITS LEGISLATIVE HISTORY,
OR IN THE SECRETARY'S ADMINISTRATIVE DETERMINATION. 

THE MISSING PERSONS ACT WAS A RESPONSE TO UNPRECEDENTED PERSONNEL
PROBLEMS EXPERIENCED BY THE ARMED FORCES IN THE EARLY MONTHS AFTER OUR
ENTRY INTO THE SECOND WORLD WAR.  ORIGINALLY PROPOSED BY THE NAVY
DEPARTMENT, THE LEGISLATION WAS AMENDED ON THE FLOOR OF THE HOUSE TO
COVER THE OTHER SERVICES.  AS THE COMMITTEE REPORTS MAKE CLEAR, THE
PRIMARY PURPOSE OF THE LEGISLATION WAS TO ALLEVIATE FINANCIAL HARDSHIP
SUFFERED BY THE DEPENDENTS OF SERVICEMEN REPORTED AS MISSING.  (FN20) 

TO HOLD THAT THE MISSING PERSONS ACT OPERATED TO REPEAL THE STATUTE
UPON WHICH THE PETITIONERS RELY WOULD BE A LONG STEP TO TAKE, FOR AT
LEAST TWO REASONS.  IN THE FIRST PLACE, THE RECORD OF THE HEARINGS OF
THE SENATE COMMITTEE ON NAVAL AFFAIRS CLEARLY DISCLOSES THAT AT THE
TIME THE MISSING PERSONS ACT WAS BEING CONSIDERED, THE COMMITTEE WAS
MADE FULLY AWARE OF THE 1814 STATUTE, AND MANIFESTED NO INCLINATION TO
DISTURB IT.  (FN21)  SECONDLY, IT IS NOT ENTIRELY ACCURATE TO SAY, AS
DOES THE GOVERNMENT, THAT THE MISSING PERSONS ACT IS "LATER IN TIME." 
AFTER THE ORIGINAL PASSAGE OF THAT ACT IN 1942, THE STATUTE UPON WHICH
THE PETITIONERS RELY WAS RECODIFIED IN 1952 AND AGAIN IN 1958.  (FN22) 

BUT THE QUESTION WHETHER THERE WAS A REPEAL BY IMPLICATION IS ONE
THAT WE NEED NOT DETERMINE HERE, FOR IT IS CLEAR THAT UNDER EITHER
STATUTE THE PETITIONERS ARE ENTITLED TO THE PAY AND ALLOWANCES THAT
ACCRUED DURING THEIR DETENTION AS PRISONERS OF WAR.  THE MISSING
PERSONS ACT UNAMBIGUOUSLY PROVIDES THAT ANY PERSON "IN THE ACTIVE
SERVICE  ...  OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS OF  ...
CAPTURED BY A HOSTILE FORCE  ...  IS ENTITLED TO RECEIVE OR TO HAVE
CREDITED TO HIS ACCOUNT THE SAME  ...  PAY AND ALLOWANCES TO WHICH HE
WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE  ... ."  IT
AFFIRMATIVELY APPEARS ON THIS RECORD THAT THE PETITIONERS WERE IN THE
ACTIVE SERVICE OF THE ARMY, THAT THEY WERE IN FACT CAPTURED BY THE
ENEMY, AND THAT THEY WERE LATER OFFICIALLY DETERMINED TO BE "ABSENT IN
A STATUS OF  ...  CAPTURED BY A HOSTILE FORCE."  THE TERMS OF THE
MISSING PERSONS ACT ARE THEREFORE EXPRESSLY APPLICABLE. 

THE ARGUMENT THAT IT WAS OPEN TO THE SECRETARY OF THE ARMY TO
DETERMINE THAT THE PETITIONERS IN THE PRISON CAMPS TO WHICH THEY WERE
TAKEN WERE THEREAFTER NOT "IN THE ACTIVE SERVICE" CANNOT SURVIVE EVEN
CURSORY ANALYSIS.  IN THE ARMED FORCES THE TERM "ACTIVE SERVICE" HAS A
PRECISE MEANING, A MEANING NOT DEPENDENT UPON INDIVIDUAL CONDUCT.  10
U.S.C. SEC. 101.  (FN23)  MOREOVER, THE VERBAL STRUCTURE OF THE ACT, RE
ENFORCED BY COMMON SENSE, CLEARLY LEADS TO THE CONCLUSION THAT "ACTIVE
SERVICE" REFERS TO A PERSON'S STATUS AT THE TIME HE BECAME MISSING. 
NOTHING IN THE LEGISLATIVE HISTORY OF THE ORIGINAL STATUTE OR OF ITS
MANY RE-ENACTMENTS OFFERS SUPPORT FOR ANY OTHER CONSTRUCTION.  THAT
HISTORY SIMPLY REFLECTS A CONTINUING PURPOSE TO WIDEN THE CLASSES OF
PERSONS TO WHOM THE BENEFACTIONS OF THE LAW WERE TO BE EXTENDED, FROM
THE TIME THOSE PERSONS BECAME MISSING.  (FN24) 

THE GOVERNMENT'S ALTERNATIVE ARGUMENT SEEMS, AS A MATTER OF STATUTORY
CONSTRUCTION, EQUALLY INVALID.  THE LEGISLATIVE HISTORY DISCLOSES THAT
THE PROVISION DENYING PAY TO A PERSON OFFICIALLY DETERMINED TO HAVE
BEEN "ABSENT FROM HIS POST OF DUTY WITHOUT AUTHORITY" WAS ENACTED TO
COVER THE CASE OF A PERSON FOUND TO HAVE BEEN "MISSING" IN THE FIRST
PLACE ONLY BY REASON OF SUCH UNAUTHORIZED ABSENCE.  (FN25)  MOREOVER,
DESERTION AND ABSENCE WITHOUT LEAVE ARE TECHNICALLY DEFINED OFFENSES. 
10 U.S.C. SEC.  885, 10 U.S.C. SEC. 886; SEE MANUAL FOR COURTS-MARTIAL,
UNITED STATES, P. 315 (1951).  IT IS OPEN TO SERIOUS QUESTION WHETHER
THE CONDUCT OF THE PETITIONERS AFTER THEIR CAPTURE COULD CONCEIVABLY
HAVE BEEN DETERMINED TO BE TANTAMOUNT EITHER TO DESERTION OR ABSENCE
WITHOUT LEAVE.  SEE AVINS, LAW OF AWOL, P. 167 (1957); SNEDEKER,
MILITARY JUSTICE UNDER THE UNIFORM CODE, P. 562 (1953). 

THESE ARE QUESTIONS WHICH WE NEED NOT, HOWEVER, PURSUE.  WE NEED NOT
DECIDE IN THIS CASE THAT THE SECRETARY OF THE ARMY WAS WHOLLY WITHOUT
POWER UNDER THE STATUTE TO DETERMINE ADMINISTRATIVELY THAT THE
PETITIONERS AFTER THEIR CAPTURE WERE NO LONGER IN ACTIVE SERVICE, OR
THAT THEY WERE ABSENT FROM THEIR POSTS OF DUTY.  NOR NEED WE FINALLY
DECIDE WHETHER EITHER SUCH DETERMINATION BY THE SECRETARY WOULD HAVE
BEEN VALID AS A MATTER OF LAW.  THE SIMPLE FACT IS THAT NO SUCH
ADMINISTRATIVE DETERMINATION HAS EVER BEEN MADE.  THE ONLY REASON THE
ARMY EVER ADVANCED FOR REFUSING TO PAY THE PETITIONERS WAS ITS
DETERMINATION THAT THEY HAD "ADVOCATED, OR WERE MEMBERS OF AN
ORGANIZATION WHICH ADVOCATED,  ...  THE OVERTHROW OF THE UNITED STATES
GOVERNMENT BY FORCE OR VIOLENCE."  (FN26) THAT DETERMINATION HAS NOW
BEEN TOTALLY ABANDONED.  THE ARMY HAS NEVER EVEN PURPORTED TO DETERMINE
THAT THE PETITIONERS WERE NOT IN ACTIVE SERVICE OR THAT THEY WERE
ABSENT FROM THEIR POSTS OF DUTY.  (FN27)  THE ARMY CANNOT RELY UPON
SOMETHING THAT NEVER HAPPENED, UPON AN ADMINISTRATIVE DETERMINATION
THAT WAS NEVER MADE, EVEN IF IT BE ASSUMED THAT SUCH A DETERMINATION
WOULD HAVE BEEN PERMISSIBLE UNDER THE STATUTE AND SUPPORTED BY THE
FACTS.  (FN28)  SEE SERVICE V. DULLES, 354 U.S. 363; VITARELLI V.
SEATON, 359 U.S. 535.  FOR THESE REASONS WE HOLD THAT THE PETITIONERS
WERE ENTITLED UNDER THE APPLICABLE STATUTES TO THE PAY AND ALLOWANCES
THAT ACCRUED DURING THEIR DETENTION AS PRISONERS OF WAR. 

THROUGHOUT THESE PROCEEDINGS NO DISTINCTION HAS BEEN MADE BETWEEN THE
PETITIONERS' PAY RIGHTS WHILE THEY WERE PRISONERS AND THEIR RIGHTS
AFTER THE KOREAN ARMISTICE WHEN THEY VOLUNTARILY DECLINED REPATRIATION
AND WENT TO COMMUNIST CHINA.  SINCE BOTH THE ARMY AND THE COURT OF
CLAIMS DENIED THE PETITIONERS' CLAIMS ENTIRELY, NO SEPARATE
CONSIDERATION WAS GIVEN TO THE PETITIONERS' STATUS AFTER THEIR RELEASE
AS PRISONERS OF WAR UNTIL THE DATE OF THEIR ADMINISTRATIVE DISCHARGES. 
NOR DID THE PETITIONERS IN THIS COURT ADDRESS THEMSELVES TO THE
QUESTION OF THE PETITIONERS' RIGHTS TO PAY DURING THAT INTERVAL.  YET,
IT IS EVIDENT THAT THE PETITIONERS' STATUS DURING THAT PERIOD MIGHT BE
GOVERNED BY CONSIDERATIONS DIFFERENT FROM THOSE WHICH HAVE BEEN
DISCUSSED.  OTHER STATUTORY PROVISIONS AND REGULATIONS WOULD COME INTO
PLAY.  ACCORDINGLY WE EXPRESS NO VIEW AS TO THE PETITIONERS' PAY RIGHTS
FOR THE PERIOD BETWEEN THE KOREAN ARMISTICE AND THEIR ADMINISTRATIVE
DISCHARGES, LEAVING THAT QUESTION TO BE FULLY CANVASSED IN THE COURT OF
CLAIMS, TO WHICH IN ANY EVENT THIS CASE MUST BE REMANDED FOR
COMPUTATION OF THE JUDGMENTS. 

THE DISCLOSURE OF GRAVE MISCONDUCT MY NUMBERS OF SERVICEMEN CAPTURED
IN KOREA WAS A SAD AFTERMATH OF THE HOSTILITIES THERE.  THE
CONSTERNATION AND SELF-SEARCHING WHICH FOLLOWED UPON THAT DISCLOSURE
ARE STILL FRESH IN THE MEMORIES OF MANY THOUGHTFUL AMERICANS.  (FN29)
THE PROBLEM IS NOT A NEW ONE.   (FN30)  WHETHER THE SOLUTION TO IT LIES
ALONE IN SUBSEQUENT PROSECUTION AND PUNISHMENT IS NOT FOR US TO
INQUIRE.  (FN31)  CONGRESS MAY SOMEDAY PROVIDE THAT MEMBERS OF THE ARMY
WHO FAIL TO LIVE UP TO A SPECIFIED CODE OF CONDUCT AS PRISONERS OF WAR
SHALL FORFEIT THEIR PAY AND ALLOWANCES.  (FN32) TODAY WE HOLD ONLY THAT
THE ARMY DID NOT LAWFULLY IMPOSE THAT SANCTION IN THIS CASE. 

THE JUDGMENT IS REVERSED, AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  EACH OF THE PETITIONERS WAS DISHONORABLY DISCHARGED BY
ADMINISTRATIVE ORDER OF THE SECRETARY OF THE ARMY ON JANUARY 23, 1954. 
THE VALIDITY OF THESE ADMINISTRATIVE DISCHARGES IS NOT IN ISSUE HERE,
SINCE THE PETITIONERS HAVE MADE NO CLAIM FOR PAY AND ALLOWANCES AFTER
THAT DATE.  COMPARE MEMORANDUM TO THE CHIEF OF STAFF FROM THE JUDGE
ADVOCATE GENERAL OF FEBRUARY 3, 1954, J.A.G.A. 1954/1627, WITH OPINION
MEMORANDUM FOR THE SECRETARY OF DEFENSE FROM THE GENERAL COUNSEL OF THE
DEPARTMENT OF DEFENSE OF JANUARY 25, 1954.  SEE PASLEY, SENTENCE FIRST
VERDICT AFTERWARDS: DISHONORABLE DISCHARGES WITHOUT TRIAL BY COURT
MARTIAL?  41 CORNELL L.Q. 545; NOTE, MISCONDUCT IN THE PRISON CAMP:  A
SURVEY OF THE LAW AND AN ANALYSIS OF THE KOREAN CASES, 56 COL. L. REV.
709, 735. 

FN2  JUDGE MADDEN STATED: 

"IT IS NOTEWORTHY THAT AFTER CONGRESS ABOLISHED THE HISTORICAL POWER
OF COURTS-MARTIAL TO FORFEIT ACCRUED PAY, THE ARMY, APPARENTLY FOR THE
FIRST TIME IN HISTORY, FORFEITED THE PAY ALREADY ACCRUED TO THESE
PLAINTIFFS, NOT BY THE PROCESS OF TRIAL AND SENTENCE, WHICH WAS
FORBIDDEN BY STATUTE, BUT BY THE CRUDE AND PRIMITIVE METHOD OF REFUSING
TO GIVE THEM THEIR MONEY.  FINDING NOTHING IN THE LAW BOOKS TO JUSTIFY
ITS REFUSAL TO PAY THESE MEN, IT THREW THE BOOKS AWAY AND JUST REFUSED
TO PAY THEM.   IT COULD HAVE SET BEFORE THESE CONFUSED YOUNG MEN A
BETTER EXAMPLE OF GOVERNMENT BY LAW."  181 F. SUPP., AT 675. 

FN3  THE PETITIONERS DID NOT STIPULATE THAT THESE FACTS WERE TRUE,
BUT DID AGREE "THAT THE FACTS HEREINAFTER SET FORTH SHALL, FOR THE
PURPOSES OF THIS CASE, BE DEEMED TO HAVE BEEN ELICITED FROM DEFENDANT'S
WITNESSES TESTIFYING UNDER OATH," AND THAT "THE FACTS SO ELICITED, AND
HEREINAFTER SET FORTH, HAVE NOT BEEN REBUTTED BY PLAINTIFFS OR BY
PLAINTIFFS' WITNESSES, AND PLAINTIFFS, AND EACH OF THEM, HEREBY WAIVE
THE RIGHT TO TESTIFY OR TO CALL WITNESSES TO TESTIFY IN REBUTTAL OF
THESE FACTS." 

FN4  THE STATUTE WAS ORIGINALLY ENACTED ON MARCH 30, 1814, AS SEC. 14
OF "AN ACT FOR THE BETTER ORGANIZING, PAYING, AND SUPPLYING THE ARMY OF
THE UNITED STATES."  C. 37, SEC. 14, 3 STAT. 113, 115.   THE PROVISION
NEXT APPEARED AS R.S. SEC. 1288.  IN THE 1952 EDITION OF THE CODE, IT
APPEARED AT 10 U.S.C. SEC. 846.  TITLE 10, AT THAT TIME, DEALT WITH THE
ARMY AND THE AIR FORCE.  IN THE 1958 EDITION OF THE CODE, THE PROVISION
WAS TRANSFERRED TO TITLE 37, C. 4, WHICH COVERS BASIC PAY AND
ALLOWANCES OF MILITARY PERSONNEL. 

FN5  THIS POSITION WAS SET OUT IN A LETTER FROM THE ARMY CHIEF OF
FINANCE TO THE PETITIONERS' LAWYER, REJECTING THE PETITIONERS' CLAIMS. 
THE LETTER IN ITS ENTIRETY READ AS FOLLOWS:

                                      "2 OCTOBER 1956 

  *         *         *         *         *    "DEAR MR. BROWN: 

"FURTHER REFERENCE IS MADE TO YOUR INQUIRIES CONCERNING THE CLAIMS OF
OTHO G. BELL, LEWIE W. GRIGGS, AND WILLIAM A. COWART. 

"I HAVE BEEN ADVISED THAT THE FOLLOWING DETERMINATIONS HAVE BEEN MADE
REGARDING THE STATUS OF ALL UNITED STATES ARMY VOLUNTARY NON
REPATRIATES WHO ELECTED NOT TO ACCEPT REPATRIATION TO UNITED STATES
CONTROL UNDER THE TERMS OF THE KOREAN ARMISTICE AGREEMENT PRIOR TO 23
JANUARY 1954: 

"A.  THAT ALL VOLUNTARY NON-REPATRIATES WHO REFUSED TO ELECT
REPATRIATION PRIOR TO 23 JANUARY 1954, UNDER THE TERMS OF THE KOREAN
ARMISTICE AGREEMENT HAVE, AS DEMONSTRATED BY THEIR REFUSAL TO ELECT
REPATRIATION TO THE UNITED STATES AND THEIR RECORDS AS PRISONERS OF
WAR, ADOPTED, ADHERED TO OR SUPPORTED THE AIMS OF COMMUNISM, ONE OF
WHICH IS THE OVERTHROW OF ALL NON-COMMUNIST GOVERNMENTS, INCLUDING THE
GOVERNMENT OF THE UNITED STATES, BY FORCE OR VIOLENCE. 

"B.  THAT ALL VOLUNTARY NON-REPATRIATES WHO REFUSED TO ELECT
REPATRIATION PRIOR TO 23 JANUARY 1954 UNDER THE TERMS OF THE KOREAN
ARMISTICE AGREEMENT NOW ADVOCATE, OR ARE MEMBERS OF AN ORGANIZATION
WHICH ADVOCATES, THE OVERTHROW OF THE UNITED STATES GOVERNMENT BY FORCE
OR VIOLENCE. 

"C.  THAT ALL VOLUNTARY NON-REPATRIATES WHO REFUSED TO ELECT
REPATRIATION PRIOR TO 23 JANUARY 1954 UNDER THE TERMS OF THE KOREAN
ARMISTICE AGREEMENT ADVOCATED, OR WERE MEMBERS OF AN ORGANIZATION WHICH
ADVOCATED, DURING THE PERIOD FROM THE DATE OF THEIR CAPTURE IN KOREA
THROUGH THE DATE OF THEIR DISHONORABLE DISCHARGE FROM THE ARMY, THE
OVERTHROW OF THE UNITED STATES GOVERNMENT BY FORCE OR VIOLENCE. 

"D.  THAT SUCH PERSONS ARE NOT ENTITLED TO THE PAYMENT OF SALARY OR
WAGES FOR THE PERIOD BEGINNING WITH THEIR RESPECTIVE DATES OF CAPTURE
THROUGH THE DATE THEY WERE GIVEN DISHONORABLE DISCHARGES. 

"THE CLAIMS OF OTHO G. BELL, LEWIE W. GRIGGS, AND WILLIAM A. COWART
MAY NOT, THEREFORE, BE FAVORABLY CONSIDERED. 

                               "SINCERELY YOURS,

                                         "(SIGNED) H.W. CRANDALL

     "MAJOR GENERAL, USA

                 "CHIEF OF FINANCE" 

FN6  "(1)  IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN ANY
CAPACITY BY ANY AGENCY OF THE FEDERAL GOVERNMENT, WHOSE COMPENSATION,
OR ANY PART THEREOF, IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY
ANY ACT OF CONGRESS, TO HAVE MEMBERSHIP IN ANY POLITICAL PARTY OR
ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM
OF GOVERNMENT IN THE UNITED STATES. 

"(2)  ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE
IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND
THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS FOR
SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH
PERSON."  SEC. 9A OF THE ACT OF AUGUST 2, 1939, 53 STAT. 1148. 

FN7  THE "SECOND AFFIRMATIVE DEFENSE" READ IN PART AS FOLLOWS: 

"DURING THE PERIOD FOR WHICH THEY SEEK TO RECOVER PAY AND ALLOWANCES
HEREIN, PLAINTIFFS ADVOCATED THE OVERTHROW OF THE GOVERNMENT OF THE
UNITED STATES OR WERE MEMBERS OF A POLITICAL PARTY OR ORGANIZATION
WHICH SO ADVOCATED.  THEREFORE, PLAINTIFFS ARE NOT ENTITLED TO RECOVER
UNDER THE PROVISIONS OF SECTION 9A OF THE ACT OF AUGUST 2, 1939 (53
STAT. 1148), AS AMENDED  ...  ." 

FN8  AUGUST 9, 1955, C. 690, SEC. 4(2), 69 STAT. 625. 

FN9  "I,  ...  , DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL BEAR TRUE
FAITH AND ALLEGIANCE TO THE UNITED STATES OF AMERICA; THAT I WILL SERVE
THEM HONESTLY AND FAITHFULLY AGAINST ALL THEIR ENEMIES WHOMSOEVER; AND
THAT I WILL OBEY THE ORDERS OF THE PRESIDENT OF THE UNITED STATES AND
THE ORDERS OF THE OFFICERS APPOINTED OVER ME, ACCORDING TO REGULATIONS
AND THE UNIFORM CODE OF MILITARY JUSTICE."  10 U.S.C. SEC. 501. 

FN10  50 U.S.C. APP. SEC. 1001 ET SEQ. 

FN11  56 STAT. 143. 

FN12  SEE ARTICLE 57, UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C.
SEC. 857. 

FN13  UNLESS HE IS ABSENT WITHOUT LEAVE OR A DESERTER, UNITED STATES
V. LANDERS, 92 U.S. 77; DODGE V. UNITED STATES, 33 CT. CL. 28; DIG. 
OP. JAG ARMY 265 (1868); DIG.  OP.  JAG ARMY 850 (1912); JAGA
1952/5875, 2 DIG.  OP. SENT.  & PUN.  SEC.  35.7; JAGA 1953/1074, 3
DIG.  OP. PAY SEC. 21.15; DAVIS, MILITARY LAWS OF THE UNITED STATES, P.
371, N. 2 (1897); WINTHROP, MILITARY LAW AND PRECEDENTS, PP. 645-646
(2D ED. 1920).  BUT SEE COMMENT, MIL. L. REV., JULY (1960)(DA PAM 27
100-9, 1 JUL 60), P. 151.  AND SEE GENERALLY U.S. ARMY SPECIAL TEXT 27
157, MILITARY AFFAIRS (1955), PP. 1605-1612. 

FN14  SEE CONRAD V. UNITED STATES, 32 CT. CL. 139; CARRINGTON V.
UNITED STATES, 46 CT. CL. 279.  SEE ALSO DIG.  OP. JAG ARMY 265 (1868);
DIG.  OP. JAG ARMY 850 (1912).  THE RULE CUTS BOTH WAYS, AS THE CASE OF
WARD V. UNITED STATES, 158 F.2D 499, ILLUSTRATES.  THERE THE PLAINTIFF,
A YEOMAN IN THE NAVY, HAD ACTUALLY PERFORMED THE DUTIES OF A LAND TITLE
ATTORNEY.  HE SUED TO RECOVER THE REASONABLE VALUE OF HIS SERVICE, LESS
WHAT HE HAD RECEIVED AS A YEOMAN.  THE COURT OF APPEALS APPROVED A
DISMISSAL OF THE COMPLAINT, WITH THE COMMENT THAT "HIS RATING FIXED HIS
STATUS AND HIS PAY."  158 F.2D, AT 502. 

FN15  THE CASE WAS DECIDED UNDER A STATUTE SPECIFICALLY APPLICABLE TO
NAVAL PERSONNEL, ORIGINALLY ENACTED IN 1800, 2 STAT. 45, NOW 37 U.S.C.
SEC. 244.  SEE N. 32, INFRA. 

FN16  "SEC.  1001.  DEFINITIONS. 

"FOR THE PURPOSE OF THIS ACT (SECTIONS 1001-1012 AND 1013-1016 OF
THIS APPENDIX): 

    *         *         *         *         * 

"(B)  THE TERM 'ACTIVE SERVICE' MEANS ACTIVE SERVICE IN THE ARMY,
NAVY, MARINE CORPS, AND COAST GUARD OF THE UNITED STATES, INCLUDING
ACTIVE FEDERAL SERVICE PERFORMED BY PERSONNEL OF THE RETIRED AND
RESERVE COMPONENTS OF THESE FORCES, THE COAST AND GEODETIC SURVEY, THE
PUBLIC HEALTH SERVICE, AND ACTIVE FEDERAL SERVICE PERFORMED BY THE
CIVILIAN OFFICERS AND EMPLOYEES DEFINED IN PARAGRAPH (A)(3) ABOVE; ...
"  50 U.S.C. APP. SEC. 1001. 

"SEC. 1002.  MISSING INTERNED OR CAPTIVE PERSONS.  (A) CONTINUANCE OF
PAY AND ALLOWANCES. 

"ANY PERSON WHO IS IN THE ACTIVE SERVICE  ...  AND WHO IS OFFICIALLY
DETERMINED TO BE ABSENT IN A STATUS OF MISSING, MISSING IN ACTION,
INTERNED IN A FOREIGN COUNTRY, CAPTURED BY A HOSTILE FORCE, BELEAGUERED
BY A HOSTILE FORCE, OR BESIEGED BY A HOSTILE FORCE SHALL, FOR THE
PERIOD HE IS OFFICIALLY CARRIED OR DETERMINED TO BE IN ANY SUCH STATUS,
BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME  ...
PAY AND ALLOWANCES  ...  TO WHICH HE WAS ENTITLED AT THE BEGINNING OF
SUCH PERIOD OF ABSENCE OR MAY BECOME ENTITLED THEREAFTER  ...  AND
ENTITLEMENT TO PAY AND ALLOWANCES SHALL TERMINATE UPON THE DATE OF
RECEIPT BY THE DEPARTMENT CONCERNED OF EVIDENCE THAT THE PERSON IS DEAD
OR UPON THE DATE OF DEATH PRESCRIBED OR DETERMINED UNDER PROVISIONS OF
TO PAY AND ALLOWANCES SHALL NOT TERMINATE UPON THE EXPIRATION OF A TERM
OF SERVICE DURING ABSENCE AND, IN CASE OF DEATH DURING ABSENCE, SHALL
NOT TERMINATE EARLIER THAN THE DATES HEREIN PRESCRIBED.  THERE SHALL BE
NO ENTITLEMENT TO PAY AND ALLOWANCES FOR ANY PERIOD DURING WHICH SUCH
PERSON MAY BE OFFICIALLY DETERMINED ABSENT FROM HIS POST OF DUTY
WITHOUT AUTHORITY AND HE SHALL BE INDEBTED TO THE GOVERNMENT FOR ANY
PAYMENTS FROM AMOUNTS CREDITED TO HIS ACCOUNT FOR SUCH PERIOD  ...  ." 
50 U.S.C. APP. SEC. 1002. 

"SEC. 1009.  DETERMINATIONS BY DEPARTMENT HEADS OR DESIGNEES;
CONCLUSIVENESS RELATIVE TO STATUS OF PERSONNEL, PAYMENTS, OR DEATH. 

"(A)  THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE
MAY DESIGNATE, SHALL HAVE AUTHORITY TO MAKE ALL DETERMINATIONS
NECESSARY IN THE ADMINISTRATION OF THIS ACT (SECTIONS 1001-1012 AND
1013-1016 OF THIS APPENDIX), AND FOR THE PURPOSES OF THIS ACT (SAID
FINDING OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT (SAID
EVIDENCE OR INFORMATION IS RECEIVED IN SUCH DEPARTMENT OR BY THE HEAD
THEREOF  ...  .  DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD
OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY
DESIGNATE, OF ENTITLEMENT OF ANY PERSON, UNDER PROVISIONS OF THIS ACT
(SECTIONS 1001-1012 AND 1013-1016 OF THIS APPENDIX), TO PAY AND
ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH
DETERMINATIONS SHALL BE CONCLUSIVE:  ...  WHEN CIRCUMSTANCES WARRANT
RECONSIDERATION OF ANY DETERMINATION AUTHORIZED TO BE MADE BY THIS ACT
(SAID SECTIONS) THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH
SUBORDINATE AS HE MAY DESIGNATE, MAY CHANGE OR MODIFY A PREVIOUS
DETERMINATION ...  ."  50 U.S.C. APP. SEC. 1009. 

FN17  ACT OF MARCH 7, 1942, 56 STAT. 143. 

FN18  ACT OF DECEMBER 24, 1942, 56 STAT. 1092; ACT OF JULY 1, 1944,
58 STAT. 679; SEC. 4(E) OF SELECTIVE SERVICE ACT OF 1948, 62 STAT. 608;
ACT OF JULY 3, 1952, 66 STAT. 330, 331; ACT OF APRIL 4, 1953, 67 STAT.
20-21; ACT OF JANUARY 30, 1954, 68 STAT. 7; ACT OF JUNE 30, 1955, 69
STAT. 238; ACT OF JULY 20, 1956, 70 STAT. 595; ACT OF AUGUST 7, 1957,
71 STAT. 341. 

FN19  ACT OF AUGUST 29, 1957, 71 STAT. 491. 

FN20  "IN GENERAL, THE PURPOSES OF THIS BILL ARE TO PROVIDE
AUTHORIZATION FOR THE CONTINUED PAYMENT OR CREDIT IN THE ACCOUNTS, OF
THE PAY AND ALLOWANCES OF MISSING PERSONS FOR 1 YEAR FOLLOWING THE DATE
OF COMMENCEMENT OF ABSENCE FROM THEIR POSTS OF DUTY OR UNTIL SUCH
PERSONS HAVE BEEN OFFICIALLY DECLARED DEAD (IN DECEMBER, 1942, THE
STATUTE WAS AMENDED SO AS TO PERMIT A DEPARTMENT HEAD TO CONTINUE
PERSONNEL IN A MISSING STATUS FOR AN INDEFINITE PERIOD.  56 STAT.
1092); THE CONTINUED PAYMENT FOR THE SAME PERIOD OF THE ALLOTMENTS FOR
THE SUPPORT OF DEPENDENTS AND FOR THE PAYMENT OF INSURANCE PREMIUMS,
AND FOR REGULAR MONTHLY PAYMENTS TO THE DEPENDENTS OF MISSING PERSONS,
IN THE SAME MANNER IN WHICH ALLOTMENTS ARE PAID, IN THOSE INSTANCES IN
WHICH THE MISSING PERSONS HAD NEGLECTED TO PROVIDE FOR THEIR DEPENDENTS
THROUGH THE MEDIUM OF ALLOTMENTS, SUCH PAYMENTS TO BE DEDUCTED FROM THE
PAY OF THE MISSING PERSONS IN THE SAME MANNER IN WHICH ALLOTMENTS ARE
PAID. 

     *        *         *         *         * 

"THE NAVY DEPARTMENT ADVISED THE COMMITTEE THAT MANY INSTANCES HAVE
OCCURRED DURING RECENT MONTHS OF PERSONNEL HAVING BEEN REPORTED AS
MISSING, AND IN ACCORDANCE WITH REQUESTS RECEIVED FROM DISBURSING
OFFICERS CARRYING THE PAY ACCOUNTS, THE ALLOTMENTS OF SUCH PERSONS WERE
DISCONTINUED.  BECAUSE OF STOPPAGE OF ALLOTMENTS AND THE WITHHOLDING OF
PAY OF MISSING PERSONS, DEPENDENTS OF PERSONNEL CONCERNED HAVE
EXPERIENCED GREAT HARDSHIPS IN A LARGE NUMBER OF CASES.  THE COMMITTEE
ARE ADVISED THAT THIS SITUATION IS AGGRAVATED BY THE FACT THAT, SO LONG
AS A PERSON IS DECLARED TO BE MISSING AND HAS NOT BEEN OFFICIALLY
DECLARED DEAD, THE 6 MONTHS' DEATH GRATUITY IS NOT PAYABLE."  H.R. REP.
NO. 1680, 77TH CONG., 2D SESS., PP. 3, 5. 

FN21  THE COMMITTEE WAS ADVISED BY A REPRESENTATIVE OF THE MARINE
CORPS AS FOLLOWS: "SECTION 1288, REVISED STATUTES (SEC. 846, TITLE 10,
U.S. CODE), PROVIDES THAT NONCOMMISSIONED OFFICERS AND PRIVATES SHALL
BE ENTITLED TO RECEIVE DURING THEIR CAPTIVITY BY AN ENEMY,
NOTWITHSTANDING THE EXPIRATION OF THEIR TERMS OF SERVICE, THE SAME PAY,
SUBSISTENCE, AND ALLOWANCES TO WHICH THEY MAY BE ENTITLED WHILE IN THE
ACTUAL SERVICE OF THE UNITED STATES.  THIS APPLIES ONLY TO ENLISTED
PERSONNEL, AND I KNOW OF NO SUCH LAW AFFECTING THE PAY AND ALLOWANCES
OF OFFICERS AND NURSES.  THE PROPOSED LEGISLATION WOULD ALSO AUTHORIZE
THE CREDITING, IN THE ACCOUNT OF THE INDIVIDUAL CONCERNED, OF THE SAME
PAY AND ALLOWANCES RECEIVED AT THE TIME AN INDIVIDUAL IS REPORTED AS
MISSING OR MISSING IN ACTION UNTIL HIS STATUS IS DETERMINED BY
COMPETENT AUTHORITY."  HEARINGS BEFORE THE SENATE COMMITTEE ON NAVAL
AFFAIRS ON H.R. 6446, 77TH CONG., 2D SESS., PP. 13-14. 

FN22  SEE NOTE 4. 

FN23  A HOUSE COMMITTEE REPORT CONCERNING A PROPOSED AMENDMENT TO THE
ACT SETS FORTH A LETTER FROM THE SECRETARY OF THE ARMY CLEARLY SHOWING
HIS UNDERSTANDING THAT "ACTIVE SERVICE" WAS EMPLOYED IN THE STATUTE AS
A TECHNICAL PHRASE EMBODYING A TECHNICAL STATUS: "ALSO, THE PROPOSAL
WOULD AMEND SECTION 2 OF THE MISSING PERSONS ACT TO PROVIDE COVERAGE
FOR PERSONS ON TRAINING DUTY UNDER CERTAIN CONDITIONS, IN ADDITION TO
PERSONS ON ACTIVE SERVICE."  H.R. REP. NO. 2535, 84TH CONG., 2D SESS.,
P. 7.  SEE ALSO H.R. REP. NO. 204, 85TH CONG., 1ST SESS., P. 8; H.R.
REP. NO. 888, 85TH CONG., 1ST SESS., P. 3; H.R. REP. NO. 2354, 84TH
CONG., 2D SESS., P. 3; S. REP. NO. 573, 85TH CONG., 1ST SESS., P. 4; S.
REP.  NO. 970, 85TH CONG., 1ST SESS., P. 7; S. REP. NO. 2552, 84TH
CONG., 2D SESS., P. 3. 

FN24  FOR EXAMPLE, WHEN THE STATUTE WAS AMENDED IN 1957 TO EXTEND
COVERAGE TO THOSE IN "FULL-TIME TRAINING DUTY, OTHER FULL-TIME DUTY, OR
INACTIVE DUTY TRAINING," AN ARMY SPOKESMAN TESTIFYING BEFORE THE HOUSE
SUBCOMMITTEE EXPRESSED THE CLEAR VIEW THAT "ACTIVE SERVICE" REFERRED TO
THE MOMENT THE PERSON ENTERED A MISSING STATUS.  "THE PURPOSE OF THAT
...  IS TO INSURE THAT PEOPLE WHO ARE IN A NONPAY STATUS AT THE TIME
THEY ENTER IN A MISSING OR MISSING-IN-ACTION STATUS ARE COVERED  ...  .
UNDER THE PRESENT WORDING OF THE BILL IT IS CONCEIVABLE THAT BEING IN A
NONPAY STATUS AT THE TIME THAT HE ENTERS INTO A MISSING STATUS HIS
SURVIVORS WOULD NOT BE ENTITLED TO ANY PAY OR ALLOWANCES.  THIS WOULD
INSURE THAT THEY WOULD BE ENTITLED TO THE PAY AND ALLOWANCES THAT HE
WOULD HAVE HAD, HAD HE BEEN ON ACTIVE DUTY AT THE TIME THAT HE ENTERED
INTO A MISSING STATUS."  HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE
HOUSE COMMITTEE ON ARMED SERVICES ON H.R. 2404, 85TH CONG., 1ST SESS.,
P. 563.    IN S. REP. NO. 970, 85TH CONG., 1ST SESS., THE COMMITTEE ON
ARMED SERVICES STATED: "COVERAGE WOULD BE EXTENDED TO MEMBERS OF THE
RESERVE COMPONENTS WHILE THEY ARE PERFORMING FULL-TIME TRAINING DUTY,
OTHER FULL-TIME DUTY, AND INACTIVE DUTY TRAINING WITH OR WITHOUT PAY. 
MEMBERS OF THE RESERVE COMPONENTS ENTERING A MISSING STATUS WHILE
PERFORMING DUTY OF THE TYPES ENUMERATED WOULD HAVE CREDITED TO THEIR
PAY ACCOUNTS THE SAME PAY AND ALLOWANCES THAT THEY WOULD RECEIVE IF
THEY WERE PERFORMING FULL-TIME ACTIVE DUTY.  SOME RESERVISTS
PARTICIPATE IN TRAINING WITHOUT PAY, SUCH AS WEEK-END PROFICIENCY
FLIGHTS IN AIRCRAFT, AND THIS AMENDMENT IS INTENDED TO TREAT THEM AS IF
THEY WERE ON ACTIVE DUTY WHEN THEY ENTERED A MISSING STATUS."  P. 3. 
SIMILAR STATEMENTS MAY BE FOUND IN H.R.  REP. NO. 2535, 84TH CONG., 2D
SESS., P. 3, AND H.R. REP. NO. 204, 85TH CONG., 1ST SESS., P. 2. 
CERTAINLY THE THRUST OF THESE STATEMENTS IS A PRIMARY CONCERN WITH
STATUS AT THE TIME THE MISSING STATUS IS FIRST ENTERED. 

FN25  SEE H.R. REP. NO. 1680, 77TH CONG., 2D SESS., P. 5; HEARINGS
BEFORE HOUSE COMMITTEE ON NAVAL AFFAIRS ON H.R. 4405, 78TH CONG., 2D
SESS., P. 2316. 

FN26  SEE NOTE 5, SUPRA. 

FN27  NOR HAS THE ARMY EVER PURPORTED TO DETERMINE THAT THE
PETITIONERS WERE NOT IN "CAPTIVITY" OR "IN THE ACTUAL SERVICE OF THE
UNITED STATES" WITHIN THE MEANING OF 37 U.S.C. SEC. 242. 

FN28  THE RECORD OF A 1954 HEARING BEFORE THE HOUSE ARMED SERVICES
COMMITTEE ON A BILL TO EXTEND THE LIFE OF THE MISSING PERSONS ACT
INDICATES THAT SOME THOUGHT WAS BEING GIVEN AT THAT TIME TO THE
POSSIBILITY OF AN ADMINISTRATIVE DETERMINATION THAT THE PETITIONERS
WERE ABSENT FROM THEIR POSTS OF DUTY: 

"MR. BATES.  GENERAL, WHAT IS THE PAY STATUS OF PRISONERS WHO HAVE
REFUSED REPATRIATION? 

"GENERAL POWELL.  THOSE PRISONERS, SIR, ARE CARRIED IN PAY STATUS. 
IN NEGOTIATING THE ARMISTICE WE AGREED THAT UNTIL THIS MATTER WAS
SETTLED THEY WOULD BE CARRIED AS PRISONERS OF WAR. 

"MR. KILDAY.  WHEN DOES THAT STOP? 

"MR. BATES.  DOES THAT STOP NEXT WEEK? 

"GENERAL POWELL.  THE METHOD OF STOPPING THE PAY AND ALLOWANCES,
ALLOTMENTS AND STATUS OF MILITARY PERSONNEL OF THOSE 21 PRISONERS IS A
MATTER TO BE DECIDED BY THE SECRETARY OF DEFENSE FOR ALL SERVICES
INVOLVED.  HE HAS ANNOUNCED NO DECISION. 

"MR. BATES.  AREN'T THEY ABSENT WITHOUT LEAVE? 

"GENERAL POWELL.  NO, SIR. 

"MR. BATES.  WHAT IS IT? 

"GENERAL POWELL.  IN THE ARMISTICE AGREEMENT, THE UNITED STATES
AGREED TO CARRY THEM AS PRISONERS OF WAR UNTIL THE MATTER WAS SETTLED. 

"MR. BATES.  I THOUGHT THERE WAS ALSO AN UNDERSTANDING THAT THEY
WOULD BE CONSIDERED A.W.O.L. AS OF A CERTAIN DATE? 

"GENERAL POWELL.  THAT IS A MATTER STILL TO BE DECIDED BY THE
SECRETARY OF DEFENSE. 

"MR. BATES.  OR DESERTERS, YOU KNOW. 

"GENERAL POWELL.  THE SECRETARY OF DEFENSE IS DECIDING FOR ALL
SERVICES. 

"THE CHAIRMAN.  CALL THE ROLL.  IT IS NOT NECESSARY TO CALL THE
ROLL.  THERE IS NO OBJECTION, IS THERE? 

"(CHORUS OF 'NO.') 

"MR. KILDAY.  I WOULD LIKE IT UNDERSTOOD THAT THEY ARE GOING TO BE
CUT OFF AS SOON AS YOU CAN. 

"GENERAL POWELL.  SIR, THE SECRETARY OF DEFENSE MUST MAKE A DECISION,
INCLUDING PSYCHOLOGICAL FACTORS, INDIVIDUAL RIGHTS, THE LAW INVOLVED,
AND NATIONAL POLICY. 

"MR. VINSON.  THAT IS RIGHT. 

"GENERAL POWELL.  HE HAS NOT AS YET ANNOUNCED SUCH A DECISION TO US. 

"MR. CUNNINGHAM.  SHOULD THE PAY AND ALLOTMENTS, BENEFITS TO THE
MEMBERS OF THE FAMILY, EVER BE CUT OFF? 

"THE CHAIRMAN.  SURE. 

"MR. VAN ZANDT.  OH, YES. 

"MR. CUNNINGHAM.  WHY SO?  THEY ARE NOT TO BLAME FOR THIS. 

"MR. BISHOP.  NO, THEY ARE NOT. 

"MR. VINSON.  WELL, IF A MAN IS ABSENT WITHOUT LEAVE: 

"MR. CUNNINGHAM.  A MAN HAS CHILDREN OR WIFE AND HE IS OVER THERE IN
KOREA AND DECIDED TO STAY WITH THE COMMUNISTS.  WHY SHOULD THE CHILDREN
BE PUNISHED? 

"THE CHAIRMAN.  WAIT, ONE AT A TIME.  THE REPORTER CAN'T GET IT. 

"MR. CUNNINGHAM.  I THINK IT IS A GOOD QUESTION.  THE PAY FOR THE
INDIVIDUAL:  HE SHOULD NEVER HAVE THAT, AND HIS CITIZENSHIP.  BUT HERE
IS A WOMAN FROM MINNESOTA, GOES OVER THERE AND PLEADS WITH HER SON AND
WENT AS FAR AS TOKYO.  NOW THAT MOTHER NEEDS AN ALLOTMENT AS THAT BOY'S
DEPENDENT.  WHY SHOULD SHE BE PUNISHED BECAUSE THE BOY STAYED OVER
THERE?  I THINK THERE ARE A LOT OF THINGS TO BE CONSIDERED; NOT JUST
EMOTION. 

"MR. KILDAY.  THAT IS INHERENT.  WHEN A MAN IS COURT-MARTIALED: 

"THE CHAIRMAN.  WITHOUT OBJECTION, THE BILL IS FAVORABLY REPORTED." 
HEARINGS BEFORE HOUSE COMMITTEE ON ARMED SERVICES ON H.R. 7209, 83D
CONG., 2D SESS., PP. 3071-3072. 

FN29  SEE REPORT BY THE SECRETARY OF DEFENSE'S ADVISORY COMMITTEE ON
PRISONERS OF WAR (1955). 

FN30  IN 1333 JOHN CULWIN WAS CHARGED WITH HAVING SWORN ALLEGIANCE TO
HIS SCOTTISH CAPTORS.  1 HALE, HISTORIA PLACITORUM CORONAE 167-168
(1736).  THE EARLIEST REPORTED AMERICAN CASE OF PRISONER OF WAR
MISCONDUCT APPEARS TO BE RESPUBLICA V. MCCARTY, 2 DALL.  86 (SUPREME
COURT OF PENNSYLVANIA, 1781).  DURING THE CIVIL WAR THOUSANDS OF
CAPTIVES ON EACH SIDE DEFECTED TO THE ENEMY.  SEE H.R. REP. NO. 45,
40TH CONG., 3D SESS., PP. 229, 742-777 (1869); REPORT BY THE SECRETARY
OF DEFENSE'S ADVISORY COMMITTEE ON PRISONERS OF WAR, P. 51 (1955).  TWO
TREASON TRIALS GREW OUT OF PRISONER OF WAR MISCONDUCT DURING WORLD WAR
II.  UNITED STATES V. PROVOO, 124 F. SUPP. 185, REV'D, 215 F.2D 531,
SECOND INDICTMENT DISMISSED, 17 F.R.D. 183, AFF'D, 350 U.S. 857; UNITED
STATES EX REL. HIRSHBERG V. MALANAPHY, 73 F. SUPP. 990, REV'D, 168 F.2D
503, REV'D SUB NOM. UNITED STATES EX REL. HIRSHBERG V. COOKE, 336 U.S.
210.  MORE THAN FORTY BRITISH PRISONERS OF WAR WERE BROUGHT TO TRIAL
FOR MISCONDUCT.   SEE NOTE, 56 COL. L. REV.  709-721 (1956). 

FN31  UPON THEIR RETURN TO THE UNITED STATES IN JULY 1955, THE
PETITIONERS WERE CONFINED BY THE UNITED STATES ARMY IN SAN FRANCISCO,
CALIFORNIA, TO AWAIT TRIAL BY GENERAL COURT-MARTIAL FOR VIOLATION OF
ARTICLE 104 OF THE UNIFORM CODE OF MILITARY JUSTICE.  IN NOVEMBER OF
THAT YEAR THEY WERE RELEASED FROM CONFINEMENT BY VIRTUE OF WRITS OF
HABEAS CORPUS ISSUED BY A FEDERAL DISTRICT COURT, ON THE AUTHORITY OF
TOTH V. QUARLES, 350 U.S. 11.  THERE HAVE BEEN SEVERAL COURT-MARTIAL
PROSECUTIONS GROWING OUT OF ALLEGED MISCONDUCT BY ARMY PRISONERS OF WAR
IN KOREA.  SEE UNITED STATES V.  DICKENSON, 17 C.M.R. 438, AFF'D, 6
U.S.C.M.A. 438, 20 C.M.R. 154; UNITED STATES V. FLOYD, 18 C.M.R. 362;
UNITED STATES V. BATCHELOR, 19 C.M.R. 452, AFF'D, 7 U.S.C.M.A.  354, 22
C.M.R. 144; UNITED STATES V. OLSON, 20 C.M.R. 461, AFF'D, 7 U.S.C.M.A.
460, 22 C.M.R. 250; UNITED STATES V. GALLAGHER, 21 C.M.R. 435; UNITED
STATES V. BAYES, 22 C.M.R. 487; UNITED STATES V. ALLEY, 8 U.S.C.M.A.
559, 25 C.M.R. 63; UNITED STATES V. FLEMING, 19 C.M.R. 438.  SEE THE
DISCUSSION OF THESE CASES IN PRUGH, JUSTICE FOR ALL RECAP-K'S, ARMY
COMBAT FORCES JOURNAL, NOVEMBER 1955, P. 15; NOTE, 56 COL. L. REV.
709. 

FN32  A STATUTE RELATING TO THE RIGHT TO PAY OF MEMBERS OF THE UNITED
STATES NAVY WHO ARE TAKEN PRISONER DOES APPEAR TO REQUIRE A STANDARD OF
CONDUCT AFTER CAPTURE: 

"THE PAY AND EMOLUMENTS OF THE OFFICERS AND MEN OF ANY VESSEL OF THE
UNITED STATES TAKEN BY AN ENEMY WHO SHALL APPEAR, BY THE SENTENCE OF A
COURT-MARTIAL OR OTHERWISE, TO HAVE DONE THEIR UTMOST TO PRESERVE AND
DEFEND THEIR VESSEL, AND, AFTER THE TAKING THEREOF, TO HAVE BEHAVED
THEMSELVES AGREEABLY TO THE DISCIPLINE OF THE NAVY, SHALL GO ON AND BE
PAID TO THEM UNTIL THEIR EXCHANGE, DISCHARGE, OR DEATH."  37 U.S.C.
SEC. 244. 

NO REPORTED CASE HAS BEEN FOUND HOLDING THAT THIS STANDARD OF CONDUCT
WAS NOT MET.  CF. STRAUGHAN V. UNITED STATES, 1 CT. CL. 324, DISCUSSED
IN TEXT, SUPRA, P. 404. 
..END :





















BALDONADO V. CALIFORNIA 366 U.S. 417 


NO. 185.  ARGUED MAY 8, 1961 - DECIDED MAY 22, 1961* - REPORTED BELOW:
53 CAL. 2D 803, 819, 824, 350 P.2D 103, 112, 115. 

*TOGETHER WITH NO. 186, MOYA V. CALIFORNIA, AND NO. 187, DUNCAN V.
CALIFORNIA, ALSO ON CERTIORARI TO THE SAME COURT. 


THE TOTALITY OF CIRCUMSTANCES DISCLOSED BY THE RECORDS FAILS TO
SUPPORT THE SUBSTANTIAL DUE PROCESS ISSUES TENDERED IN THE PETITIONS
FOR CERTIORARI, AND THE WRITS ARE DISMISSED. 

BALDONADO V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

AFTER HEARING ORAL ARGUMENT AND ON DUE EXAMINATION OF THE RECORDS, WE
CONCLUDE THAT THE TOTALITY OF CIRCUMSTANCES DISCLOSED FAILS TO SUPPORT
THE SUBSTANTIAL DUE PROCESS ISSUES TENDERED IN THE PETITIONS FOR
CERTIORARI, AND SO WE DISMISS THE WRITS. 
..END :







BUSHNELL V. ELLIS 366 U.S. 418 


NO. 561.  ARGUED MAY 2, 1961 - DECIDED MAY 22, 1961. 


JUDGMENT REVERSED AND CAUSE REMANDED TO COURT OF CRIMINAL APPEALS OF
TEXAS TO GRANT PETITIONER A HEARING ON HIS PETITION FOR WRIT OF HABEAS
CORPUS. 

BUSHNELL V. ELLIS, CORRECTIONS DIRECTOR. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE JUDGMENT OF THE COURT OF CRIMINAL APPEALS OF TEXAS IS REVERSED
AND THE CAUSE IS REMANDED TO THAT COURT WITH DIRECTIONS TO GRANT
PETITIONER A HEARING UPON HIS PETITION FOR A WRIT OF HABEAS CORPUS. 
UVEGES V. PENNSYLVANIA, 335 U.S. 437; CASH V. CULVER, 358 U.S. 633;
MCNEAL V. CULVER, 365 U.S. 109. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

THIS APPLICATION FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS WAS
FILED AS AN ORIGINAL ACTION IN THE COURT OF CRIMINAL APPEALS OF TEXAS. 
NEITHER THE RECORD, THE BRIEFS, NOR ARGUMENT OF COUNSEL INDICATES THAT
SUCH AN ACTION HAS EVER BEEN FILED IN A DISTRICT COURT OF TEXAS AS
APPEARS TO BE REQUIRED BY TEXAS PROCEDURE.  SEE EX PARTE RODRIGUEZ, 169
TEX.  CR. R. - , 334 S.W.2D 294 (1960); EX PARTE FITZPATRICK, 167 TEX.
CR. R. 376, 320 S.W.2D 683 (1959); EX PARTE BROOKS, 85 TEX. CR. R. 397,
212 S.W. 956 (1919).  THE JUDGMENT OF THE COURT OF CRIMINAL APPEALS
MIGHT, THEREFORE, HAVE BEEN BASED UPON AN INDEPENDENT STATE GROUND.  IN
THIS CONDITION OF THE RECORD, I WOULD AFFIRM THE JUDGMENT WITHOUT
PREJUDICE TO THE PETITIONER'S FILING IN ANY APPROPRIATE TEXAS DISTRICT
COURT AN APPLICATION FOR A WRIT OF HABEAS CORPUS TO TEST OUT THE
VALIDITY OF HIS DETENTION.  SEE VERNON'S TEX. CODE CRIM. PROC., ART.
119. 
..END :











HERRIN TRANSPORTATION CO. V. UNITED STATES 366 U.S. 419 


NO. 837.  DECIDED MAY 22, 1961.  - 186 F. SUPP. 777, AFFIRMED. 


HERRIN TRANSPORTATION CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















JAMES V. UNITED STATES 366 U.S. 213 


NO. 63.  ARGUED NOVEMBER 17, 1960 - DECIDED MAY 15, 1961 - 273 F.2D 5,
REVERSED. 


1.  EMBEZZLED MONEY IS TAXABLE INCOME OF THE EMBEZZLER IN THE YEAR OF
THE EMBEZZLEMENT UNDER SEC. 22(A) OF THE INTERNAL REVENUE CODE OF 1939,
WHICH DEFINES "GROSS INCOME" AS INCLUDING "GAINS OR PROFITS AND INCOME
DERIVED FROM ANY SOURCE WHATEVER," AND UNDER SEC. 61(A) OF THE INTERNAL
REVENUE CODE OF 1954, WHICH DEFINES "GROSS INCOME" AS ALL INCOME FROM
WHATEVER SOURCE DERIVED."  COMMISSIONER V. WILCOX, 327 U.S. 404,
OVERRULED.  PP. 213-222. 

2.  AFTER THIS COURT'S DECISION IN COMMISSIONER V. WILCOX, SUPRA,
PETITIONER EMBEZZLED LARGE SUMS OF MONEY DURING THE YEARS 1951 THROUGH
1954.  HE FAILED TO REPORT THOSE AMOUNTS AS GROSS INCOME IN HIS INCOME
TAX RETURNS FOR THOSE YEARS, AND HE WAS CONVICTED OF "WILLFULLY"
ATTEMPTING TO EVADE THE FEDERAL INCOME TAX DUE FOR EACH OF THE YEARS
1951 THROUGH 1954, IN VIOLATION OF SEC. 145(B) OF THE INTERNAL REVENUE
CODE OF 1939 AND SEC. 7201 OF THE INTERNAL REVENUE CODE OF 1954.  HELD:
THE JUDGMENT AFFIRMING THE CONVICTION IS REVERSED AND THE CAUSE IS
REMANDED WITH DIRECTIONS TO DISMISS THE INDICTMENT.  PP. 214-215, 222. 

JAMES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE BRENNAN AND MR. JUSTICE STEWART CONCUR. 

THE ISSUE BEFORE US IN THIS CASE IS WHETHER EMBEZZLED FUNDS ARE TO BE
INCLUDED IN THE "GROSS INCOME" OF THE EMBEZZLER IN THE YEAR IN WHICH
THE FUNDS ARE MISAPPROPRIATED UNDER SEC. 22(A) OF THE INTERNAL REVENUE
CODE OF 1939 (FN1) AND SEC. 61(A) OF THE INTERNAL REVENUE CODE OF
1954.  (FN2) 

THE FACTS ARE NOT IN DISPUTE.  THE PETITIONER IS A UNION OFFICIAL
WHO, WITH ANOTHER PERSON, EMBEZZLED IN EXCESS OF $738,000 DURING THE
YEARS 1951 THROUGH 1954 FROM HIS EMPLOYER UNION AND FROM AN INSURANCE
COMPANY WITH WHICH THE UNION WAS DOING BUSINESS.  (FN3)  PETITIONER
FAILED TO REPORT THESE AMOUNTS IN HIS GROSS INCOME IN THOSE YEARS AND
WAS CONVICTED FOR WILLFULLY ATTEMPTING TO EVADE THE FEDERAL INCOME TAX
DUE FOR EACH OF THE YEARS 1951 THROUGH 1954 IN VIOLATION OF SEC. 145(B)
OF THE INTERNAL REVENUE CODE OF 1939 (FN4) AND SEC. 7201 OF THE
INTERNAL REVENUE CODE OF 1954.  (FN5) HE WAS SENTENCED TO A TOTAL OF
THREE YEARS' IMPRISONMENT.  THE COURT OF APPEALS AFFIRMED.  273 F.2D 5.
BECAUSE OF A CONFLICT WITH THIS COURT'S DECISION IN COMMISSIONER V.
WILCOX, 327 U.S. 404, A CASE WHOSE RELEVANT FACTS ARE CONCEDEDLY THE
SAME AS THOSE IN THE CASE NOW BEFORE US, WE GRANTED CERTIORARI.  362
U.S. 974. 

IN WILCOX, THE COURT HELD THAT EMBEZZLED MONEY DOES NOT CONSTITUTE
TAXABLE INCOME TO THE EMBEZZLER IN THE YEAR OF THE EMBEZZLEMENT UNDER
SEC. 22(A) OF THE INTERNAL REVENUE CODE OF 1939.  SIX YEARS LATER, THIS
COURT HELD, IN RUTKIN V. UNITED STATES, 343 U.S. 130, THAT EXTORTED
MONEY DOES CONSTITUTE TAXABLE INCOME TO THE EXTORTIONIST IN THE YEAR
THAT THE MONEY IS RECEIVED UNDER SEC. 22(A) OF THE INTERNAL REVENUE
CODE OF 1939.  IN RUTKIN, THE COURT DID NOT OVERRULE WILCOX, BUT
STATED: 

"WE DO NOT REACH IN THIS CASE THE FACTUAL SITUATION INVOLVED IN
COMMISSIONER V. WILCOX, 327 U.S. 404.  WE LIMIT THAT CASE TO ITS
FACTS.  THERE EMBEZZLED FUNDS WERE HELD NOT TO CONSTITUTE TAXABLE
INCOME TO THE EMBEZZLER UNDER SEC. 22(A)."  ID., AT 138.  (FN6) 

HOWEVER, EXAMINATION OF THE REASONING USED IN RUTKIN LEADS US
INESCAPABLY TO THE CONCLUSION THAT WILCOX WAS THOROUGHLY DEVITALIZED. 

THE BASIS FOR THE WILCOX DECISION WAS "THAT A TAXABLE GAIN IS
CONDITIONED UPON (1) THE PRESENCE OF A CLAIM OF RIGHT TO THE ALLEGED
GAIN AND (2) THE ABSENCE OF A DEFINITE, UNCONDITIONAL OBLIGATION TO
REPAY OR RETURN THAT WHICH WOULD OTHERWISE CONSTITUTE A GAIN.  WITHOUT
SOME BONA FIDE LEGAL OR EQUITABLE CLAIM, EVEN THOUGH IT BE CONTINGENT
OR CONTESTED IN NATURE, THE TAXPAYER CANNOT BE SAID TO HAVE RECEIVED
ANY GAIN OR PROFIT WITHIN THE REACH OF SEC. 22(A)."  COMMISSIONER V.
WILCOX, SUPRA, AT P. 408.  SINCE WILCOX EMBEZZLED THE MONEY, HELD IT
"WITHOUT ANY SEMBLANCE OF A BONA FIDE CLAIM OF RIGHT," IBID., AND
THEREFORE "WAS AT ALL TIMES UNDER AN UNQUALIFIED DUTY AND OBLIGATION TO
REPAY THE MONEY TO HIS EMPLOYER," IBID., THE COURT FOUND THAT THE MONEY
EMBEZZLED WAS NOT INCLUDIBLE WITHIN "GROSS INCOME."  BUT, RUTKIN'S
LEGAL CLAIM WAS NO GREATER THAN THAT OF WILCOX.  IT WAS SPECIFICALLY
FOUND "THAT PETITIONER HAD NO BASIS FOR HIS CLAIM  ...  AND THAT HE
OBTAINED IT BY EXTORTION."  RUTKIN V. UNITED STATES, SUPRA, AT P. 135. 
BOTH WILCOX AND RUTKIN OBTAINED THE MONEY BY MEANS OF A CRIMINAL ACT;
NEITHER HAD A BONA FIDE CLAIM OF RIGHT TO THE FUNDS.  (FN7)  NOR WAS
RUTKIN'S OBLIGATION TO REPAY THE EXTORTED MONEY TO THE VICTIM ANY LESS
THAN THAT OF WILCOX.  THE VICTIM OF AN EXTORTION, LIKE THE VICTIM OF AN
EMBEZZLEMENT, HAS A RIGHT TO RESTITUTION.  FURTHERMORE, IT IS
INCONSEQUENTIAL THAT AN EMBEZZLER MAY LACK TITLE TO THE SUMS HE
APPROPRIATES WHILE AN EXTORTIONIST MAY GAIN A VOIDABLE TITLE. 
QUESTIONS OF FEDERAL INCOME TAXATION ARE NOT DETERMINED BY SUCH
"ATTENUATED SUBTLETIES."  LUCAS V. EARL, 281 U.S. 111, 114; CORLISS V.
BOWERS, 281 U.S. 376, 378.  THUS, THE FACT THAT RUTKIN SECURED THE
MONEY WITH THE CONSENT OF HIS VICTIM, RUTKIN V. UNITED STATES, SUPRA,
AT P. 138, IS IRRELEVANT.  LIKEWISE UNIMPORTANT IS THE FACT THAT THE
SUFFERER OF AN EXTORTION IS LESS LIKELY TO SEEK RESTITUTION THAN ONE
WHOSE FUNDS ARE EMBEZZLED.  WHAT IS IMPORTANT IS THAT THE RIGHT TO
RECOUPMENT EXISTS IN BOTH SITUATIONS. 

EXAMINATION OF THE RELEVANT CASES IN THE COURTS OF APPEALS LENDS
CREDENCE TO OUR CONCLUSION THAT THE WILCOX RATIONALE WAS EFFECTIVELY
VITIATED BY THIS COURT'S DECISION IN RUTKIN.  (FN8)  ALTHOUGH THIS CASE
APPEARS TO BE THE FIRST TO ARISE THAT IS "ON ALL FOURS" WITH WILCOX,
THE LOWER FEDERAL COURTS, IN DEFERENCE TO THE UNDISTURBED WILCOX
HOLDING, HAVE EARNESTLY ENDEAVORED TO FIND DISTINGUISHING FACTS IN THE
CASES BEFORE THEM WHICH WOULD ENABLE THEM TO INCLUDE SUNDRY UNLAWFUL
GAINS WITHIN "GROSS INCOME."  (FN9) 

IT HAD BEEN A WELL-ESTABLISHED PRINCIPLE, LONG BEFORE EITHER RUTKIN
OR WILCOX, THAT UNLAWFUL, AS WELL AS LAWFUL, GAINS ARE COMPREHENDED
WITHIN THE TERM "GROSS INCOME."  SECTION II B OF THE INCOME TAX ACT OF
1913 PROVIDED THAT "THE NET INCOME OF A TAXABLE PERSON SHALL INCLUDE
GAINS, PROFITS, AND INCOME  ...  FROM  ...  THE TRANSACTION OF ANY
LAWFUL BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND
INCOME DERIVED FROM ANY SOURCE WHATEVER  ...  ."  38 STAT. 167.  WHEN
THE STATUTE WAS AMENDED IN 1916, THE ONE WORD "LAWFUL" WAS OMITTED. 
THIS REVEALED, WE THINK, THE OBVIOUS INTENT OF THAT CONGRESS TO TAX
INCOME DERIVED FROM BOTH LEGAL AND ILLEGAL SOURCES, TO REMOVE THE
INCONGRUITY OF HAVING THE GAINS OF THE HONEST LABORER TAXED AND THE
GAINS OF THE DISHONEST IMMUNE.  RUTKIN V. UNITED STATES, SUPRA, AT P.
138; UNITED STATES V. SULLIVAN, 274 U.S. 259, 263.  THEREAFTER, THE
COURT HELD THAT GAINS FROM ILLICIT TRAFFIC IN LIQUOR ARE INCLUDIBLE
WITHIN "GROSS INCOME."  IBID.  SEE ALSO JOHNSON V. UNITED STATES, 318
U.S. 189; UNITED STATES V. JOHNSON, 319 U.S. 503.  AND, THE COURT HAS
POINTED OUT, WITH APPROVAL, THAT THERE "HAS BEEN A WIDESPREAD AND
SETTLED ADMINISTRATIVE AND JUDICIAL RECOGNITION OF THE TAXABILITY OF
UNLAWFUL GAINS OF MANY KINDS," RUTKIN V. UNITED STATES, SUPRA, AT P.
137.  THESE INCLUDE PROTECTION PAYMENTS MADE TO RACKETEERS, RANSOM
PAYMENTS PAID TO KIDNAPPERS, BRIBES, MONEY DERIVED FROM THE SALE OF
UNLAWFUL INSURANCE POLICIES, GRAFT, BLACK MARKET GAINS, FUNDS OBTAINED
FROM THE OPERATION OF LOTTERIES, INCOME FROM RACE TRACK BOOKMAKING AND
ILLEGAL PRIZE FIGHT PICTURES.  IBID. 

THE STARTING POINT IN ALL CASES DEALING WITH THE QUESTION OF THE
SCOPE OF WHAT IS INCLUDED IN "GROSS INCOME" BEGINS WITH THE BASIC
PREMISE THAT THE PURPOSE OF CONGRESS WAS "TO USE THE FULL MEASURE OF
ITS TAXING POWER."  HELVERING V. CLIFFORD, 309 U.S. 331, 334.  AND THE
COURT HAS GIVEN A LIBERAL CONSTRUCTION TO THE BROAD PHRASEOLOGY OF THE
"GROSS INCOME" DEFINITION STATUTES IN RECOGNITION OF THE INTENTION OF
CONGRESS TO TAX ALL GAINS EXCEPT THOSE SPECIFICALLY EXEMPTED. 
COMMISSIONER V. JACOBSON, 336 U.S. 28, 49; HELVERING V. STOCKHOLMS
ENSKILDA BANK, 293 U.S. 84, 87-91.  THE LANGUAGE OF SEC. 22(A) OF THE
1939 CODE, "GAINS OR PROFITS AND INCOME DERIVED FROM ANY SOURCE
WHATEVER," AND THE MORE SIMPLIFIED LANGUAGE OF SEC. 61(A) OF THE 1954
CODE, "ALL INCOME FROM WHATEVER SOURCE DERIVED," HAVE BEEN HELD TO
ENCOMPASS ALL "ACCESSIONS TO WEALTH, CLEARLY REALIZED, AND OVER WHICH
THE TAXPAYERS HAVE COMPLETE DOMINION."  COMMISSIONER V. GLENSHAW GLASS
CO., 348 U.S. 426, 431.  A GAIN "CONSTITUTES TAXABLE INCOME WHEN ITS
RECIPIENT HAS SUCH CONTROL OVER IT THAT, AS A PRACTICAL MATTER, HE
DERIVES READILY REALIZABLE ECONOMIC VALUE FROM IT."  RUTKIN V. UNITED
STATES, SUPRA, AT P. 137.  UNDER THESE BROAD PRINCIPLES, WE BELIEVE
THAT PETITIONER'S CONTENTION, THAT ALL UNLAWFUL GAINS ARE TAXABLE
EXCEPT THOSE RESULTING FROM EMBEZZLEMENT, SHOULD FAIL. 

WHEN A TAXPAYER ACQUIRES EARNINGS, LAWFULLY OR UNLAWFULLY, WITHOUT
THE CONSENSUAL RECOGNITION, EXPRESS OR IMPLIED, OF AN OBLIGATION TO
REPAY AND WITHOUT RESTRICTION AS TO THEIR 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."  NORTH
AMERICAN OIL V. BURNET, SUPRA, AT P. 424.  IN SUCH CASE, THE TAXPAYER
HAS "ACTUAL COMMAND OVER THE PROPERTY TAXED - THE ACTUAL BENEFIT FOR
WHICH THE TAX IS PAID," CORLISS V. BOWERS, SUPRA.  THIS STANDARD BRINGS
WRONGFUL APPROPRIATIONS WITHIN THE BROAD SWEEP OF "GROSS INCOME"; IT
EXCLUDES LOANS.  WHEN A LAW-ABIDING TAXPAYER MISTAKENLY RECEIVES INCOME
IN ONE YEAR, WHICH RECEIPT IS ASSAILED AND FOUND TO BE INVALID IN A
SUBSEQUENT YEAR, THE TAXPAYER MUST NONETHELESS REPORT THE AMOUNT AS
"GROSS INCOME" IN THE YEAR RECEIVED.  UNITED STATES V. LEWIS, SUPRA;
HEALY V. COMMISSIONER, SUPRA.  WE DO NOT BELIEVE THAT CONGRESS INTENDED
TO TREAT A LAW-BREAKING TAXPAYER DIFFERENTLY.  JUST AS THE HONEST
TAXPAYER MAY DEDUCT ANY AMOUNT REPAID IN THE YEAR IN WHICH THE
REPAYMENT IS MADE, THE GOVERNMENT POINTS OUT THAT, "IF, WHEN, AND TO
THE EXTENT THAT THE VICTIM RECOVERS BACK THE MISAPPROPRIATED FUNDS,
THERE IS OF COURSE A REDUCTION IN THE EMBEZZLER'S INCOME."  BRIEF FOR
THE UNITED STATES, P. 24.  (FN10) 

PETITIONER CONTENDS THAT THE WILCOX RULE HAS BEEN IN EXISTENCE SINCE
1946; THAT IF CONGRESS HAD INTENDED TO CHANGE THE RULE, IT WOULD HAVE
DONE SO; THAT THERE WAS A GENERAL REVISION OF THE INCOME TAX LAWS IN
1954 WITHOUT MENTION OF THE RULE; THAT A BILL TO CHANGE IT (FN11) WAS
INTRODUCED IN THE EIGHTY-SIXTH CONGRESS BUT WAS NOT ACTED UPON; THAT,
THEREFORE, WE MAY NOT CHANGE THE RULE NOW.  BUT THE FACT THAT CONGRESS
HAS REMAINED SILENT OR HAS RE-ENACTED A STATUTE WHICH WE HAVE
CONSTRUED, OR THAT CONGRESSIONAL ATTEMPTS TO AMEND A RULE ANNOUNCED BY
THIS COURT HAVE FAILED, DOES NOT NECESSARILY DEBAR US FROM RE-EXAMINING
AND CORRECTING THE COURT'S OWN ERRORS.  GIROUARD V. UNITED STATES, 328
U.S. 61, 69-70; HELVERING V. HALLOCK, 309 U.S. 106, 119-122.  THERE MAY
HAVE BEEN ANY NUMBER OF REASONS WHY CONGRESS ACTED AS IT DID. 
HELVERING V. HALLOCK, SUPRA.  ONE OF THE REASONS COULD WELL BE OUR
SUBSEQUENT DECISION IN RUTKIN WHICH HAS BEEN THOUGHT BY MANY TO HAVE
REPUDIATED WILCOX.  PARTICULARLY MIGHT THIS BE TRUE IN LIGHT OF THE
DECISIONS OF THE COURTS OF APPEALS WHICH HAVE BEEN RIDING A NARROW RAIL
BETWEEN THE TWO CASES AND FURTHER DISTINGUISHING THEM TO THE
DISPARAGEMENT OF WILCOX.  SEE NOTES 8 AND 9, SUPRA. 

WE BELIEVE THAT WILCOX WAS WRONGLY DECIDED AND WE FIND NOTHING IN
CONGRESSIONAL HISTORY SINCE THEN TO PERSUADE US THAT CONGRESS INTENDED
TO LEGISLATE THE RULE.  THUS, WE BELIEVE THAT WE SHOULD NOW CORRECT THE
ERROR AND THE CONFUSION RESULTING FROM IT, CERTAINLY IF WE DO SO IN A
MANNER THAT WILL NOT PREJUDICE THOSE WHO MIGHT HAVE RELIED ON IT.  CF.
HELVERING V. HALLOCK, SUPRA, AT 119.  WE SHOULD NOT CONTINUE TO
CONFOUND CONFUSION, PARTICULARLY WHEN THE RESULT WOULD BE TO PERPETUATE
THE INJUSTICE OF RELIEVING EMBEZZLERS OF THE DUTY OF PAYING INCOME
TAXES ON THE MONEY THEY ENRICH THEMSELVES WITH THROUGH THEFT WHILE
HONEST PEOPLE PAY THEIR TAXES ON EVERY CONCEIVABLE TYPE OF INCOME. 

BUT, WE ARE DEALING HERE WITH A FELONY CONVICTION UNDER STATUTES
WHICH APPLY TO ANY PERSON WHO "WILLFULLY" FAILS TO ACCOUNT FOR HIS TAX
OR WHO "WILLFULLY" ATTEMPTS TO EVADE HIS OBLIGATION.  IN SPIES V.
UNITED STATES, 317 U.S. 492, 499, THE COURT SAID THAT SEC. 145(B) OF
THE 1939 CODE EMBODIED "THE GRAVEST OF OFFENSES AGAINST THE REVENUES,"
AND STATED THAT WILLFULNESS MUST THEREFORE INCLUDE AN EVIL MOTIVE AND
WANT OF JUSTIFICATION IN VIEW OF ALL THE CIRCUMSTANCES.  ID., AT 498. 
WILLFULNESS "INVOLVES A SPECIFIC INTENT WHICH MUST BE PROVEN BY
INDEPENDENT EVIDENCE AND WHICH CANNOT BE INFERRED FROM THE MERE
UNDERSTATEMENT OF INCOME."  HOLLAND V. UNITED STATES, 348 U.S. 121,
139. 

WE BELIEVE THAT THE ELEMENT OF WILLFULNESS COULD NOT BE PROVEN IN A
CRIMINAL PROSECUTION FOR FAILING TO INCLUDE EMBEZZLED FUNDS IN GROSS
INCOME IN THE YEAR OF MISAPPROPRIATION SO LONG AS THE STATUTE CONTAINED
THE GLOSS PLACED UPON IT BY WILCOX AT THE TIME THE ALLEGED CRIME WAS
COMMITTED.  THEREFORE, WE FEEL THAT PETITIONER'S CONVICTION MAY NOT
STAND AND THAT THE INDICTMENT AGAINST HIM MUST BE DISMISSED. 

SINCE MR. JUSTICE HARLAN, MR. JUSTICE FRANKFURTER, AND MR. JUSTICE
CLARK AGREE WITH US CONCERNING WILCOX, THAT CASE IS OVERRULED.  MR.
JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE WHITTAKER BELIEVE
THAT PETITIONER'S CONVICTION MUST BE REVERSED AND THE CASE DISMISSED
FOR THE REASONS STATED IN THEIR OPINIONS. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE
INDICTMENT.  IT IS SO ORDERED. 

FN1  SEC. 22.  GROSS INCOME. 

"(A)  GENERAL DEFINITION.  - 'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICE  ...  OF WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER  ... ."  (26 U.S.C. (1952 ED.)  SEC.  22(A).)    FN2
SEC. 61.  GROSS INCOME DEFINED. 

"(A)  GENERAL DEFINITION.  - EXCEPT AS OTHERWISE PROVIDED IN THIS
SUBTITLE, GROSS INCOME MEANS ALL INCOME FROM WHATEVER SOURCE DERIVED
...  ."  (26 U.S.C. SEC. 61(A).) 

FN3  PETITIONER HAS PLEADED GUILTY TO THE OFFENSE OF CONSPIRACY TO
EMBEZZLE IN THE COURT OF ESSEX COUNTY, NEW JERSEY. 

FN4  SEC. 145.  PENALTIES. 

"(B)  FAILURE TO COLLECT AND PAY OVER TAX, OR ATTEMPT TO DEFEAT OR
EVADE TAX.  - ANY PERSON REQUIRED UNDER THIS CHAPTER TO COLLECT,
ACCOUNT FOR, AND PAY OVER ANY TAX IMPOSED BY THIS CHAPTER, WHO
WILLFULLY FAILS TO COLLECT OR TRUTHFULLY ACCOUNT FOR AND PAY OVER SUCH
TAX, AND ANY PERSON WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR
DEFEAT ANY TAX IMPOSED BY THIS CHAPTER OR THE PAYMENT THEREOF, SHALL,
IN ADDITION TO OTHER PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY
AND, UPON CONVICTION THEREOF, BE FINED NOT MORE THAN $10,000 OR
IMPRISONED FOR NOT MORE THAN FIVE YEARS, OR BOTH, TOGETHER WITH THE
COSTS OF PROSECUTION."  (26 U.S.C. (1952 ED.)  SEC.  145(B).) 

FN5  SEC. 7201.  ATTEMPT TO EVADE OR DEFEAT TAX. 

"ANY PERSON WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR DEFEAT
ANY TAX IMPOSED BY THIS TITLE OR THE PAYMENT THEREOF SHALL, IN ADDITION
TO OTHER PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY AND, UPON
CONVICTION THEREOF, SHALL BE FINED NOT MORE THAN $10,000, OR IMPRISONED
NOT MORE THAN 5 YEARS, OR BOTH, TOGETHER WITH THE COSTS OF
PROSECUTION."  (26 U.S.C. SEC. 7201.) 

FN6  THE DISSENTERS IN RUTKIN STATED THAT THE COURT HAD REJECTED THE
WILCOX INTERPRETATION OF SEC. 22(A).  ID., AT 140. 

FN7  THE GOVERNMENT CONTENDS THAT THE ADOPTION IN WILCOX OF A CLAIM
OF RIGHT TEST AS A TOUCHSTONE OF TAXABILITY HAD NO SUPPORT IN THE PRIOR
CASES OF THIS COURT; THAT THE CLAIM OF RIGHT TEST WAS A DOCTRINE
INVOKED BY THE COURT IN AID OF THE CONCEPT OF ANNUAL ACCOUNTING, TO
DETERMINE WHEN, NOT WHETHER, RECEIPTS CONSTITUTED INCOME.  SEE NORTH
AMERICAN OIL V. BURNET, 286 U.S. 417; UNITED STATES V. LEWIS, 340 U.S.
590; HEALY V. COMMISSIONER, 345 U.S. 278.  IN VIEW OF OUR REASONING SET
FORTH BELOW, WE NEED NOT PASS ON THIS CONTENTION.  THE USE TO WHICH WE
PUT THE CLAIM OF RIGHT TEST HERE IS ONLY TO DEMONSTRATE THAT, WHATEVER
ITS VALIDITY AS A TEST OF WHETHER CERTAIN RECEIPTS CONSTITUTE INCOME,
IT CALLS FOR NO DISTINCTION BETWEEN WILCOX AND RUTKIN. 

FN8  IN MARIENFELD V. UNITED STATES, 214 F.2D 632, THE EIGHTH CIRCUIT
STATED, "WE FIND IT DIFFICULT TO RECONCILE THE WILCOX CASE WITH THE
LATER OPINION OF THE SUPREME COURT IN RUTKIN  ... ."  ID., AT 636.  THE
SECOND CIRCUIT ANNOUNCED, IN UNITED STATES V. BRUSWITZ, 219 F.2D 59,
"IT IS DIFFICULT TO PERCEIVE WHAT, IF ANYTHING, IS LEFT OF THE WILCOX
HOLDING AFTER RUTKIN  ...  ."  ID., AT 61.  THE SEVENTH CIRCUIT'S PRIOR
DECISION IN MACIAS V. COMMISSIONER, 255 F.2D 23, OBSERVED, "IF THIS
REASONING OF RUTKIN HAD BEEN EMPLOYED IN WILCOX, WE SEE NO ESCAPE FROM
THE CONCLUSION THAT THE DECISION IN THAT CASE WOULD HAVE BEEN
DIFFERENT.  IN OUR VIEW, THE COURT IN RUTKIN REPUDIATED ITS HOLDING IN
WILCOX; CERTAINLY IT REPUDIATED THE REASONING BY WHICH THE RESULT WAS
REACHED IN THAT CASE."  ID., AT 26. 

FN9  FOR EXAMPLE, KANN V. COMMISSIONER, 210 F.2D 247, WAS
DIFFERENTIATED ON THE FOLLOWING GROUNDS:  THE TAXPAYER WAS NEVER
INDICTED OR CONVICTED OF EMBEZZLEMENT; THERE WAS NO ADEQUATE PROOF THAT
THE VICTIM DID NOT FORGIVE THE MISAPPROPRIATION; THE TAXPAYER WAS
FINANCIALLY ABLE TO BOTH PAY THE INCOME TAX AND MAKE RESTITUTION; THE
TAXPAYER WOULD HAVE LIKELY RECEIVED MOST OF THE MISAPPROPRIATED MONEY
AS DIVIDENDS.  IN MARIENFELD V. UNITED STATES, SUPRA, THE COURT
BELIEVED THAT THE VICTIM WAS NOT LIKELY TO REPUDIATE.  IN UNITED STATES
V. WYSS, 239 F.2D 658, THE DISTINGUISHING FACTORS WERE THAT THE
DISTRICT JUDGE HAD NOT FOUND AS A FACT THAT THE TAXPAYER EMBEZZLED THE
FUNDS AND THE MONEY HAD NOT AS YET BEEN RECLAIMED BY THE VICTIM.  SEE
ALSO BRIGGS V. UNITED STATES, 214 F.2D 699, 702; PROKOP V.
COMMISSIONER, 254 F.2D 544, 554-555.  CF. J.J. DIX, INC., V.
COMMISSIONER, 223 F.2D 436. 

FN10  PETITIONER URGES UPON US THE CASE OF ALISON V. UNITED STATES,
344 U.S. 167.  BUT THAT CASE DEALT WITH THE RIGHT OF THE VICTIM OF AN
EMBEZZLEMENT TO TAKE A DEDUCTION, UNDER SEC. 23(E) AND (F) OF THE 1939
CODE, IN THE YEAR OF THE DISCOVERY OF THE EMBEZZLEMENT RATHER THAN THE
YEAR IN WHICH THE EMBEZZLEMENT OCCURRED.  THE COURT HELD ONLY "THAT THE
SPECIAL FACTUAL CIRCUMSTANCES FOUND BY THE DISTRICT COURTS IN BOTH
THESE CASES JUSTIFY DEDUCTIONS UNDER I.R.C. SECS. 23(E) AND (F) AND THE
LONG-STANDING TREASURY REGULATIONS APPLICABLE TO EMBEZZLEMENT LOSSES." 
ID., AT 170.  THE QUESTION OF INCLUSION OF EMBEZZLED FUNDS IN "GROSS
INCOME" WAS NOT PRESENTED IN ALISON. 

FN11  H.R. 8854, 86TH CONG., 1ST SESS. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING IN PART
AND DISSENTING IN PART. 

ON FEBRUARY 25, 1946, FIFTEEN YEARS AGO, THIS COURT, AFTER MATURE
CONSIDERATION, AND IN ACCORDANCE WITH WHAT AT THAT TIME REPRESENTED THE
MOST STRONGLY SUPPORTED JUDICIAL VIEW, HELD, IN AN OPINION WRITTEN BY
MR. JUSTICE MURPHY TO WHICH ONLY ONE JUSTICE DISSENTED, THAT MONEY
SECRETLY TAKEN BY AN EMBEZZLER FOR HIS OWN USE DID NOT CONSTITUTE A
TAXABLE GAIN TO HIM UNDER THE FEDERAL INCOME TAX LAWS.  COMMISSIONER V.
WILCOX, 327 U.S. 404.  THE TREASURY DEPARTMENT PROMPTLY ACCEPTED THIS
RULING IN A BULLETIN DECLARING THAT THE "MERE ACT OF EMBEZZLEMENT DOES
NOT OF ITSELF RESULT IN TAXABLE INCOME," ALTHOUGH PROPERLY URGING THAT
"TAXABLE INCOME MAY RESULT TO THE EMBEZZLER, DEPENDING ON THE FACTS IN
THE PARTICULAR CASE.  (FN1)  DURING THE FIFTEEN YEARS SINCE WILCOX WAS
DECIDED, BOTH THIS COURT AND CONGRESS, ALTHOUGH URGED TO DO SO, HAVE
DECLINED TO CHANGE THE WILCOX INTERPRETATION OF STATUTORY "INCOME" WITH
RESPECT TO EMBEZZLEMENT.  IN THIS CASE, HOWEVER, A MAJORITY OF THE
COURT OVERRULES WILCOX.  ONLY THREE OF THE MEMBERS OF THE COURT WHO
DECIDED THE WILCOX CASE ARE PARTICIPATING IN THIS CASE - MR. JUSTICE
FRANKFURTER, MR. JUSTICE DOUGLAS, AND MYSELF.  MR. JUSTICE DOUGLAS AND
I DISSENT FROM THE COURT'S ACTION IN "OVERRULING" WILCOX AND FROM THE
PROSPECTIVE WAY IN WHICH THIS IS DONE.  WE THINK WILCOX WAS SOUND WHEN
WRITTEN AND IS SOUND NOW. 

                           I. 

WE DISSENT FROM THE WAY THE MAJORITY OF THE COURT OVERRULES WILCOX. 
IF THE STATUTORY INTERPRETATION OF "TAXABLE INCOME" IN WILCOX IS WRONG,
THEN JAMES IS GUILTY OF VIOLATING THE TAX EVASION STATUTE FOR THE TRIAL
COURT'S JUDGMENT ESTABLISHES THAT HE EMBEZZLED FUNDS AND WILFULLY
REFRAINED FROM REPORTING THEM AS INCOME.  IT APPEARS TO US THAT
DISTRICT COURTS ARE BOUND TO BE CONFUSED AS TO WHAT THEY CAN DO
HEREAFTER IN TAX-EVASION CASES INVOLVING "INCOME" FROM EMBEZZLEMENTS
COMMITTED PRIOR TO THIS DAY.  THREE JUSTICES VOTE TO OVERRULE WILCOX
UNDER WHAT WE BELIEVE TO BE A QUESTIONABLE FORMULA, AT LEAST A NEW ONE
IN THE ANNALS OF THIS COURT, AND SAY THAT ALTHOUGH FAILURE TO REPORT
EMBEZZLED FUNDS HAS, DESPITE WILCOX, ALWAYS BEEN A CRIME UNDER THE
STATUTE, PEOPLE WHO HAVE VIOLATED THIS LAW IN THE PAST CANNOT BE
PROSECUTED BUT PEOPLE WHO EMBEZZLE FUNDS AFTER THIS OPINION IS
ANNOUNCED CAN BE PROSECUTED FOR FAILING TO REPORT THESE FUNDS AS A
"TAXABLE GAIN."  THREE OTHER JUSTICES WHO VOTE TO OVERRULE WILCOX SAY
THAT PAST EMBEZZLERS CAN BE PROSECUTED FOR THE CRIME OF TAX EVASION
ALTHOUGH TWO OF THOSE JUSTICES BELIEVE THE GOVERNMENT MUST PROVE THAT
THE PAST EMBEZZLER DID NOT COMMIT HIS CRIME IN RELIANCE ON WILCOX. 
THUS, ALTHOUGH IT WAS NOT THE LAW YESTERDAY, IT WILL BE THE LAW
TOMORROW THAT FUNDS EMBEZZLED HEREAFTER ARE TAXABLE INCOME; AND
ALTHOUGH PAST EMBEZZLERS COULD NOT HAVE BEEN PROSECUTED YESTERDAY,
MAYBE THEY CAN AND MAYBE THEY CANNOT BE PROSECUTED TOMORROW FOR THE
CRIME OF TAX EVASION.  (THE QUESTION OF THE CIVIL TAX LIABILITY OF PAST
EMBEZZLERS IS LEFT EQUALLY UNCLEAR.)  WE DO NOT CHALLENGE THE WISDOM OF
THOSE OF OUR BRETHREN WHO REFUSE TO MAKE THE COURT'S NEW TAX EVASION
CRIME APPLICABLE TO PAST CONDUCT.  THIS WOULD BE GOOD GOVERNMENTAL
POLICY EVEN THOUGH THE EX POST FACTO PROVISION OF THE CONSTITUTION HAS
NOT ORDINARILY BEEN THOUGHT TO APPLY TO JUDICIAL LEGISLATION.  OUR
TROUBLE WITH THIS ASPECT OF THE COURT'S ACTION IS THAT IT SEEMS TO US
TO INDICATE THAT THE COURT HAS PASSED BEYOND THE INTERPRETATION OF THE
TAX STATUTE AND PROCEEDED SUBSTANTIALLY TO AMEND IT. 

WE REALIZE THAT THERE IS A DOCTRINE WITH WIDE SUPPORT TO THE EFFECT
THAT UNDER SOME CIRCUMSTANCES COURTS SHOULD MAKE THEIR DECISIONS AS TO
WHAT THE LAW IS APPLY ONLY PROSPECTIVELY.  (FN2) OBJECTIONS TO SUCH A
JUDICIAL PROCEDURE, HOWEVER, SEEM TO US TO HAVE PECULIAR FORCE IN THE
FIELD OF CRIMINAL LAW.  IN THE FIRST PLACE, A CRIMINAL STATUTE THAT IS
SO AMBIGUOUS IN SCOPE THAT AN INTERPRETATION OF IT BRINGS ABOUT TOTALLY
UNEXPECTED RESULTS, THEREBY SUBJECTING PEOPLE TO PENALTIES AND
PUNISHMENTS FOR CONDUCT WHICH THEY COULD NOT KNOW WAS CRIMINAL UNDER
EXISTING LAW, RAISES SERIOUS QUESTIONS OF UNCONSTITUTIONAL VAGUENESS. 
(FN3)  MOREOVER, FOR A COURT TO INTERPRET A CRIMINAL STATUTE IN SUCH A
WAY AS TO MAKE PUNISHMENT FOR PAST CONDUCT UNDER IT SO UNFAIR AND
UNJUST THAT THE INTERPRETATION SHOULD BE GIVEN ONLY PROSPECTIVE
APPLICATION SEEMS TO US TO BE THE CREATION OF A JUDICIAL CRIME THAT
CONGRESS MIGHT NOT WANT TO CREATE.  THIS COUNTRY HAS NEVER BEEN
SYMPATHETIC WITH JUDGE-CREATED CRIMES.  THEIR REJECTION UNDER OUR
CONSTITUTION WAS SAID TO HAVE BEEN "LONG SINCE SETTLED IN PUBLIC
OPINION" EVEN AS EARLY AS 1812 WHEN THE QUESTION FIRST REACHED THIS
COURT IN UNITED STATES V. HUDSON & GOODWIN, 7 CRANCH 32.  IN THAT CASE
THIS COURT EMPHATICALLY DECLARED THAT THE FEDERAL COURTS HAVE NO COMMON
LAW JURISDICTION IN CRIMINAL CASES.  THEY ARE NOT "VESTED WITH
JURISDICTION OVER ANY PARTICULAR ACT DONE BY AN INDIVIDUAL IN SUPPOSED
VIOLATION OF THE PEACE AND DIGNITY OF THE SOVEREIGN POWER."  RATHER,
"THE LEGISLATIVE AUTHORITY OF THE UNION MUST FIRST MAKE AN ACT A CRIME,
AFFIX A PUNISHMENT TO IT, AND DECLARE THE COURT THAT SHALL HAVE
JURISDICTION OF THE OFFENCE."  (FN4) 

IN OUR JUDGMENT ONE OF THE GREAT INHERENT RESTRAINTS UPON THIS
COURT'S DEPARTURE FROM THE FIELD OF INTERPRETATION TO ENTER THAT OF
LAWMAKING HAS BEEN THE FACT THAT ITS JUDGMENTS COULD NOT BE LIMITED TO
PROSPECTIVE APPLICATION.  THIS COURT AND IN FACT ALL DEPARTMENTS OF THE
GOVERNMENT HAVE ALWAYS HERETOFORE REALIZED THAT PROSPECTIVE LAWMAKING
IS THE FUNCTION OF CONGRESS RATHER THAN OF THE COURTS.  WE CONTINUE TO
THINK THAT THIS FUNCTION SHOULD BE EXERCISED ONLY BY CONGRESS UNDER OUR
CONSTITUTIONAL SYSTEM. 

                          II. 

WE THINK WILCOX WAS RIGHT WHEN IT WAS DECIDED AND IS RIGHT NOW.  IT
ANNOUNCED NO NEW, NOVEL DOCTRINE.  ONE NEED ONLY LOOK AT THE
GOVERNMENT'S BRIEFS IN THIS COURT IN THE WILCOX CASE TO SEE JUST HOW
LITTLE PAST JUDICIAL SUPPORT COULD THEN BE MUSTERED HAD THE GOVERNMENT
SOUGHT TO SEND WILCOX TO JAIL FOR HIS EMBEZZLEMENT UNDER THE GUISE OF A
TAX EVASION PROSECUTION.  THE GOVERNMENT DID CITE MANY CASES FROM MANY
COURTS SAYING THAT UNDER THE FEDERAL INCOME TAX LAW GAINS ARE NO LESS
TAXABLE BECAUSE THEY HAVE BEEN ACQUIRED BY ILLEGAL METHODS.  THIS COURT
HAD PROPERLY HELD LONG BEFORE WILCOX THAT THERE IS NO "REASON WHY THE
FACT THAT A BUSINESS IS UNLAWFUL SHOULD EXEMPT IT FROM PAYING THE TAXES
THAT IF LAWFUL IT WOULD HAVE TO PAY."  FN5)  WE FULLY RECOGNIZED THE
CORRECTNESS OF THAT HOLDING IN WILCOX: 

"MORAL TURPITUDE IS NOT A TOUCHSTONE OF TAXABILITY.  THE QUESTION,
RATHER, IS WHETHER THE TAXPAYER IN FACT RECEIVED A STATUTORY GAIN,
PROFIT OR BENEFIT.  THAT THE TAXPAYER'S MOTIVE MAY HAVE BEEN
REPREHENSIBLE OR THE MODE OF RECEIPT ILLEGAL HAS NO BEARING UPON THE
APPLICATION OF SEC. 22(A)."  (FN6) 

THE COURT TODAY BY IMPLICATION ATTRIBUTES QUITE A DIFFERENT MEANING
OR CONSEQUENCE TO THE WILCOX OPINION.  ONE OPINION ARGUES AT LENGTH THE
"WELL-ESTABLISHED PRINCIPLE  ...  THAT UNLAWFUL, AS WELL AS LAWFUL,
GAINS ARE COMPREHENDED WITHIN THE TERM 'GROSS INCOME.'"  WILCOX DID NOT
DENY THAT; WE DO NOT DENY THAT.  THIS REPEATED THEME OF OUR BRETHREN IS
WHOLLY IRRELEVANT SINCE THE WILCOX HOLDING IN NO WAY VIOLATES THE SOUND
PRINCIPLE OF TREATING "GAINS" OF HONEST AND DISHONEST TAXPAYERS ALIKE. 
THE WHOLE BASIS OF THE WILCOX OPINION WAS THAT AN EMBEZZLEMENT IS NOT
IN ITSELF "GAIN" OR "INCOME" TO THE EMBEZZLER WITHIN THE TAX SENSE, FOR
THE OBVIOUS REASON THAT THE EMBEZZLED PROPERTY STILL BELONGS, AND IS
KNOWN TO BELONG, TO THE RIGHTFUL OWNER.  IT IS THUS A MISTAKE TO ARGUE
THAT PETITIONER'S CONTENTION IS "THAT ALL UNLAWFUL GAINS ARE TAXABLE
EXCEPT THOSE RESULTING FROM EMBEZZLEMENT." 

AS STATED IN WILCOX, THAT CASE WAS BROUGHT TO US BECAUSE OF A
CONFLICT AMONG THE CIRCUITS.  THE NINTH CIRCUIT IN WILCOX HAD HELD THAT
EMBEZZLED FUNDS WERE NOT ANY MORE "TAXABLE INCOME" TO THE EMBEZZLER
THAN BORROWED FUNDS WOULD HAVE BEEN.  (FN7)  THE FIFTH CIRCUIT, IN
MCKNIGHT V. COMMISSIONER, HAD DECIDED THE SAME THING.  (FN8)  THE
EIGHTH CIRCUIT, HOWEVER, HAD DECIDED IN KURRLE V. HELVERING THAT
EMBEZZLED FUNDS WERE TAXABLE INCOME.  (FN9)  COMPARISON OF THE THREE
OPINIONS READILY SHOWS THAT THE ARGUMENTS OF THE FIFTH AND NINTH
CIRCUITS AGAINST TAXABILITY OF SUCH FUNDS WERE MUCH STRONGER THAN THE
ARGUMENTS OF THE EIGHTH CIRCUIT FOR SUCH TAXABILITY.  THE WHOLE PICTURE
CAN BEST BE OBTAINED FROM THE COURT'S OPINION IN MCKNIGHT V.
COMMISSIONER, WRITTEN BY JUDGE SIBLEY, ONE OF THE ABLEST CIRCUIT JUDGES
OF HIS TIME.  HE RECOGNIZED THAT THE TAXPAYER COULD NOT RELY UPON THE
UNLAWFULNESS OF HIS BUSINESS TO DEFEAT TAXATION IF HE HAD MADE A "GAIN"
IN THAT BUSINESS.  HE POINTED OUT, HOWEVER, THAT THE ORDINARY EMBEZZLER
"GOT NO TITLE, VOID OR VOIDABLE, TO WHAT HE TOOK.  HE WAS STILL IN
POSSESSION AS HE WAS BEFORE, BUT WITH A CHANGED PURPOSE.  HE STILL HAD
NO RIGHT NOR COLOR OF RIGHT.  HE CLAIMED NONE."  (FN10)  JUDGE SIBLEY'S
OPINION WENT ON TO POINT OUT THAT THE "FIRST TAKINGS (OF AN EMBEZZLER)
ARE, INDEED, NEARLY ALWAYS WITH THE INTENTION OF REPAYING, A SORT OF
UNAUTHORIZED BORROWING.  IT MUST BE CONCEDED THAT NO GAIN IS REALIZED
BY BORROWING, BECAUSE OF THE OFFSETTING OBLIGATION."  (FN11)
APPROACHING THE MATTER FROM A PRACTICAL STANDPOINT, JUDGE SIBLEY ALSO
EXPLAINED THAT SUBJECTING THE EMBEZZLED FUNDS TO A TAX WOULD AMOUNT TO
ALLOWING THE UNITED STATES "A PREFERENTIAL CLAIM FOR PART OF THE
DISHONEST GAIN, TO THE DIRECT LOSS AND DETRIMENT OF THOSE TO WHOM IT
OUGHT TO BE RESTORED."  (FN12)  HE WAS NOT WILLING TO PUT THE OWNER OF
FUNDS THAT HAD BEEN STOLEN IN COMPETITION WITH THE UNITED STATES
TREASURY DEPARTMENT AS TO WHICH ONE SHOULD HAVE A PREFERENCE TO GET
THOSE FUNDS. 

IT SEEMS TO US THAT JUDGE SIBLEY'S ARGUMENT WAS THEN AND IS NOW
UNANSWERABLE.  THE RIGHTFUL OWNER WHO HAS ENTRUSTED HIS FUNDS TO AN
EMPLOYEE OR AGENT HAS TROUBLES ENOUGH WHEN THOSE FUNDS ARE EMBEZZLED
WITHOUT HAVING THE FEDERAL GOVERNMENT STEP IN WITH ITS POWERFUL CLAIM
THAT THE EMBEZZLEMENT IS A TAXABLE EVENT AUTOMATICALLY SUBJECTING PART
OF THOSE FUNDS (STILL BELONGING TO THE OWNER) TO THE WAITING HANDS OF
THE GOVERNMENT'S TAX GATHERER.  WE SAY PART OF THE OWNER'S FUNDS
BECAUSE IT IS ON THE SUPPOSED "GAIN" FROM THEM THAT THE EMBEZZLER IS
NOW HELD TO BE DUTY-BOUND TO PAY THE TAX AND HISTORY PROBABLY RECORDS
FEW INSTANCES OF INDEPENDENTLY WEALTHY EMBEZZLERS WHO HAVE HAD
NONSTOLEN ASSETS AVAILABLE FOR PAYMENT OF TAXES. 

THERE HAS BEEN NOTHING SHOWN TO US ON ANY OF THE OCCASIONS WHEN WE
HAVE CONSIDERED THIS PROBLEM TO INDICATE THAT CONGRESS EVER INTENDED
ITS INCOME TAX LAWS TO BE CONSTRUED AS IMPOSING WHAT IS IN EFFECT A
PROPERTY OR EXCISE TAX ON THE RIGHTFUL OWNER'S EMBEZZLED FUNDS, FOR
WHICH THE OWNER HAS ALREADY ONCE PAID INCOME TAX WHEN HE RIGHTFULLY
ACQUIRED THEM.  IN OUR VIEW, THE COURT TODAY DOES CONGRESS A GRAVE
INJUSTICE BY ASSUMING THAT IT HAS IMPOSED THIS DOUBLE TAX BURDEN UPON
THE VICTIM OF AN EMBEZZLEMENT MERELY BECAUSE SOMEONE HAS STOLEN HIS
MONEY, PARTICULARLY WHEN CONGRESS HAS REFUSED REQUESTS THAT IT DO SO.
THE OWNER WHOSE FUNDS HAVE BEEN EMBEZZLED HAS DONE NOTHING BUT ENTRUST
AN AGENT WITH POSSESSION OF HIS FUNDS FOR LIMITED PURPOSES, AS MANY OF
US HAVE FREQUENT OCCASION TO DO IN THE COURSE OF BUSINESS OR PERSONAL
AFFAIRS.  ORDINARILY THE OWNER IS NOT, AND HAS NO REASON TO BE, AT ALL
AWARE OF AN EMBEZZLEMENT UNTIL LONG AFTER THE FIRST MISUSE OCCURS.  IF
CONGRESS EVER DID MANIFEST AN INTENTION TO SELECT THE MERE FACT OF
EMBEZZLEMENT AS THE BASIS FOR IMPOSING A DOUBLE TAX ON THE OWNER, WE
THINK A SERIOUS QUESTION OF CONFISCATION IN VIOLATION OF THE FIFTH
AMENDMENT WOULD BE RAISED.  ALL OF US KNOW THAT WITH THE STRONG LIEN
PROVISIONS OF THE FEDERAL INCOME TAX LAW AN OWNER OF STOLEN FUNDS WOULD
HAVE A VERY ROCKY ROAD TO TRAVEL BEFORE HE GOT BACK, WITHOUT PAYING A
GOOD SLICE TO THE FEDERAL GOVERNMENT, SUCH FUNDS AS AN EMBEZZLER WHO
HAD NOT PAID THE TAX MIGHT, PERCHANCE, NOT HAVE DISSIPATED.  AN
ILLUSTRATION OF WHAT THIS COULD MEAN TO A DEFRAUDED EMPLOYER IS SHOWN
IN THIS VERY CASE BY THE EMPLOYER'S LOSS OF SOME $700,000, UPON WHICH
THE GOVERNMENT CLAIMS A TAX OF $559,000. 

IT SEEMS TO BE IMPLIED THAT ONE REASON FOR OVERRULING WILCOX IS THAT
A FAILURE TO HOLD EMBEZZLED FUNDS TAXABLE WOULD SOMEHOW WORK HAVOC WITH
THE PUBLIC REVENUE OR DISCRIMINATE AGAINST "HONEST" TAXPAYERS AND FORCE
THEM TO PAY MORE TAXES.  WE BELIEVE IT WOULD BE IMPOSSIBLE TO
SUBSTANTIATE EITHER CLAIM.  EMBEZZLERS ORDINARILY ARE NOT RICH PEOPLE
AGAINST WHOM JUDGMENTS, EVEN FEDERAL TAX JUDGMENTS CAN BE ENFORCED. 
JUDGING FROM THE MEAGER SETTLEMENTS THAT THOSE DEFRAUDED WERE
APPARENTLY COMPELLED TO MAKE WITH THE EMBEZZLERS IN THIS VERY CASE, IT
IS HARD TO IMAGINE THAT THE TREASURY WILL BE ABLE TO COLLECT THE MORE
THAN $500,000 IT CLAIMS.  AND CERTAINLY THE WILCOX CASE DOES NOT SEEM
TO HAVE BEEN ONE IN WHICH THE GOVERNMENT COULD HAVE COLLECTED ANY GREAT
AMOUNT OF TAX.  THE EMPLOYER'S EMBEZZLED $11,000 THERE WENT UP IN
GAMBLING HOUSES.  THE SCARCITY OF CASES INVOLVING ALLEGED TAXES DUE
FROM EMBEZZLERS IS ANOTHER INDICATION THAT THE GOVERNMENT CANNOT EXPECT
TO MAKE UP ANY TREASURY DEFICITS WITH TAXES COLLECTED FROM EMBEZZLERS
AND THIEVES, ESPECIALLY WHEN THE COST TO THE GOVERNMENT OF
INVESTIGATIONS AND COURT PROCEEDINGS AGAINST SUSPECTED INDIVIDUALS IS
CONSIDERED.  AND, AS ALREADY INDICATED, TO THE EXTENT THAT THE
GOVERNMENT COULD BE SUCCESSFUL IN COLLECTING SOME TAXES FROM
EMBEZZLERS, IT WOULD MOST LIKELY DO SO AT THE EXPENSE OF THE OWNER
WHOSE MONEY HAD BEEN STOLEN. 

IT FOLLOWS THAT, EXCEPT FOR THE POSSIBLE ADVERSE EFFECT ON RIGHTFUL
OWNERS, THE ONLY SUBSTANTIAL RESULT THAT ONE CAN FORESEE FROM TODAY'S
HOLDING IS THAT THE FEDERAL GOVERNMENT WILL, UNDER THE GUISE OF A TAX
EVASION CHARGE, PROSECUTE PEOPLE FOR A SIMPLE EMBEZZLEMENT.  BUT THE
CONSTITUTION GRANTS POWER TO CONGRESS TO GET REVENUE NOT TO PROSECUTE
LOCAL CRIMES.  AND IF THERE IS ANY OFFENSE WHICH UNDER OUR DUAL SYSTEM
OF GOVERNMENT IS A PURELY LOCAL ONE WHICH THE STATES SHOULD HANDLE, IT
IS EMBEZZLEMENT OR THEFT.  THE FEDERAL GOVERNMENT STANDS TO LOSE MUCH
MONEY BY TRYING TO TAKE OVER PROSECUTION OF THIS TYPE OF LOCAL
OFFENSE.  IT IS VERY DOUBTFUL WHETHER THE FURTHER CONGESTION OF FEDERAL
COURT DOCKETS TO TRY SUCH LOCAL OFFENSES IS GOOD FOR THE NATION, THE
STATES OR THE PEOPLE.  HERE THE EMBEZZLER HAS ALREADY PLEADED GUILTY TO
THE CRIME OF EMBEZZLEMENT IN A STATE COURT, ALTHOUGH THE RECORD DOES
NOT SHOW WHAT PUNISHMENT HE HAS RECEIVED.  WERE IT NOT FOR THE NOVEL
FORMULA OF APPLYING THE COURT'S NEW LAW PROSPECTIVELY, PETITIONER WOULD
HAVE TO SERVE THREE YEARS IN FEDERAL PRISON IN ADDITION TO HIS STATE
SENTENCE.  THIS GRAPHICALLY ILLUSTRATES ONE OF THE GREAT DANGERS OF
OPENING UP THE FEDERAL TAX STATUTES, OR ANY OTHERS, FOR USE BY FEDERAL
PROSECUTORS AGAINST DEFENDANTS WHO NOT ONLY CAN BE BUT ARE TRIED FOR
THEIR CRIMES IN LOCAL STATE COURTS AND PUNISHED THERE.  IF THE PEOPLE
OF THIS COUNTRY ARE TO BE SUBJECTED TO SUCH DOUBLE JEOPARDY AND DOUBLE
PUNISHMENT, DESPITE THE CONSTITUTIONAL COMMAND AGAINST DOUBLE JEOPARDY,
IT SEEMS TO US IT WOULD BE FAR WISER FOR THIS COURT TO WAIT AND LET
CONGRESS ATTEMPT TO DO IT.

                                         III. 

THE WILCOX CASE WAS DECIDED FIFTEEN YEARS AGO.  CONGRESS HAS MET
EVERY YEAR SINCE THEN.  ALL OF US KNOW THAT THE HOUSE AND SENATE
COMMITTEES RESPONSIBLE FOR OUR TAX LAWS KEEP A CLOSE WATCH ON JUDICIAL
RULINGS INTERPRETING THE INTERNAL REVENUE CODE.  EACH COMMITTEE HAS ONE
OR MORE EXPERTS AT ITS CONSTANT DISPOSAL.  IT CANNOT POSSIBLY BE DENIED
THAT THESE COMMITTEES AND THESE EXPERTS ARE, AND HAVE BEEN FULLY
FAMILIAR WITH THE WILCOX HOLDING.  WHEN CONGRESS IS DISSATISFIED WITH A
TAX DECISION OF THIS COURT, IT CAN AND FREQUENTLY DOES ACT VERY QUICKLY
TO OVERTURN IT.  (FN13)  ON ONE OCCASION SUCH AN OVERRULING ENACTMENT
WAS PASSED BY BOTH THE HOUSE AND SENATE AND SIGNED BY THE PRESIDENT ALL
WITHIN ONE DAY AFTER THE DECISION WAS RENDERED BY THIS COURT.  (FN14)
IN 1954 CONGRESS, AFTER EXTENDED STUDY, COMPLETELY OVERHAULED AND
RECODIFIED THE INTERNAL REVENUE CODE.  THE WILCOX HOLDING WAS LEFT
INTACT.  IN THE EIGHTY-SIXTH CONGRESS AND IN THE PRESENT EIGHTY-SEVENTH
CONGRESS BILLS HAVE BEEN INTRODUCED TO SUBJECT EMBEZZLED FUNDS TO
INCOME TAXATION.  (FN15) THEY HAVE NOT PASSED.  THIS IS NOT AN INSTANCE
WHEN WE CAN SAY THAT CONGRESS MAY HAVE NEGLECTED TO CHANGE THE LAW
BECAUSE IT DID NOT KNOW WHAT WAS GOING ON IN THE COURTS OR BECAUSE IT
WAS NOT ASKED TO DO SO, AS WAS THE CASE IN HELVERING V. HALLOCK. 
(FN16)  NOR IS THIS A CASE IN WHICH SUBSEQUENT AFFIRMATIVE
CONGRESSIONAL ACTION MANIFESTED A VIEW INCONSISTENT WITH OUR PRIOR
DECISION, AS WAS TRUE IN GIROUARD V. UNITED STATES.  (FN17)  WHAT WE
HAVE HERE INSTEAD IS A CASE IN WHICH CONGRESS HAS NOT PASSED BILLS THAT
HAVE BEEN INTRODUCED TO MAKE EMBEZZLED FUNDS TAXABLE AND THEREBY MAKE
FAILURE TO REPORT THEM AS INCOME A FEDERAL CRIME.  FOR THIS COURT TO
HOLD UNDER SUCH CIRCUMSTANCES THAT THE INHERENT AMBIGUITY OF
LEGISLATIVE INACTION GIVES THE COURT LICENSE TO REPUDIATE THE LONG
STANDING INTERPRETATION OF THE INCOME TAX STATUTE AND THEREBY BRING
ADDITIONAL CONDUCT WITHIN THE TAX EVASION CRIMINAL STATUTE SEEMS TO US
TO BE FLAGRANTLY VIOLATIVE OF THE ALMOST UNIVERSALLY ACCEPTED AXIOM
THAT CRIMINAL STATUTES ARE NARROWLY AND STRICTLY CONSTRUED.  OUR
BRETHREN CITE NO PRECEDENT IN WHICH THIS OR ANY OTHER COURT IN THE
ENGLISH-SPEAKING WORLD HAS SO DELIBERATELY OVERRULED A LONG-STANDING
PRIOR INTERPRETATION OF A STATUTE IN ORDER TO CREATE A CRIME WHICH UP
TO THAT TIME DID NOT EXIST. 

THIS COURT AS WELL AS CONGRESS WAS FULLY APPRISED OF THE VARIOUS
CRITICISMS MADE IN SOME COURTS OF APPEALS OPINIONS AND ELSEWHERE
AGAINST THE WILCOX HOLDING, YET IT HAS LIKEWISE UNTIL TODAY STEADFASTLY
REFUSED TO OVERRULE THAT HOLDING DURING THESE FIFTEEN YEARS.  THIS HAS
BEEN IN THE FACE OF THE FACT THAT THE GOVERNMENT EXPRESSLY URGED THAT
WE DO SO IN 1955, NINE YEARS AFTER WILCOX WAS DECIDED AND THREE YEARS
AFTER THE DECISION IN RUTKIN V. UNITED STATES, 343 U.S. 130.  ON THAT
OCCASION THE COURT OF APPEALS FOR THE SECOND CIRCUIT, SPEAKING THROUGH
JUDGE  FRANK FOR HIMSELF AND JUDGE MEDINA, HAD HELD IN THE CASE OF J.J.
DIX, INC., V. COMMISSIONER THAT EMBEZZLED FUNDS WERE NOT TAXABLE AS
INCOME, RELYING WHOLLY ON THE WILCOX DECISION.  (FN18)  JUDGE HINCKS
DISSENTED, SAYING THAT IF THE FACTS OF DIX WERE NOT ENOUGH TO
DISTINGUISH IT FROM WILCOX HE WOULD NOT FOLLOW WILCOX.  IN URGING US TO
GRANT CERTIORARI, THE GOVERNMENT SAID THAT THE CASE PRESENTED A
RECURRING PROBLEM IN THE ADMINISTRATION OF THE INCOME TAX LAWS.  ONE OF
THE ARGUMENTS THE GOVERNMENT PRESENTED FOR OVERRULING WILCOX, STRANGE
AS IT MAY SEEM, WAS THAT "SEVERAL PROSECUTIONS HAVE RECENTLY BEEN
AUTHORIZED AND ARE NOW PENDING IN VARIOUS DISTRICT COURTS, EVEN THOUGH
THE DISPUTED INCOME IN THOSE CASES APPARENTLY CAME FROM EMBEZZLEMENTS
OR CLOSELY ANALOGOUS CRIMES."  (FN19)  AND THE NEXT TO THE LAST
SENTENCE OF ITS PETITION WAS:  "IN SHORT, THE QUESTION WHETHER THE
PROCEEDS OF EMBEZZLEMENT, UNLIKE OTHER ILLEGAL INCOME, ARE TO ENJOY A
PREFERRED TAX-EXEMPT STATUS, WILL CONTINUE TO PERPLEX THE LOWER COURTS
UNTIL IT IS SETTLED BY THIS COURT."  (FN20)  WE DENIED CERTIORARI. 
(FN21)  THERE IS SURELY LESS REASON TO REPUDIATE AND "DEVITALIZE"
WILCOX NOW, SIX YEARS AFTER THE COURT, AS COMPOSED AT THAT TIME,
REFUSED TO OVERRULE IT. 

OF COURSE THE RULE OF STARE DECISIS IS NOT AND SHOULD NOT BE AN
INEXORABLE ONE.  THIS IS PARTICULARLY TRUE WITH REFERENCE TO
CONSTITUTIONAL DECISIONS INVOLVING DETERMINATIONS BEYOND THE POWER OF
CONGRESS TO CHANGE, BUT CONGRESS CAN AND DOES CHANGE STATUTORY
INTERPRETATIONS.  IT IS PERFECTLY PROPER AND RIGHT THAT IT SHOULD DO SO
WHEN IT BELIEVES THAT THIS COURT'S INTERPRETATION OF A STATUTE EMBODIES
A POLICY THAT CONGRESS IS AGAINST.  BUT CONGRESS HAS NOT TAKEN
FAVORABLE ACTION ON BILLS INTRODUCED TO OVERTURN OUR WILCOX HOLDING
EVEN AFTER WE DECLINED THE GOVERNMENT'S REQUEST TO REVERSE THE
IDENTICAL HOLDING IN DIX, THE LATTER HAVING OCCURRED THREE YEARS AFTER
THE DECISION IN RUTKIN WHICH OUR BRETHREN NOW SAY MAY HAVE MISLED
CONGRESS INTO THINKING THAT WE HAD REPUDIATED THE WILCOX HOLDING. 

IT SEEMS TO US THAT WE GAVE THE DOCTRINE OF STARE DECISES ITS PROPER
SCOPE IN OUR TREATMENT OF THIS COURT'S DECISION IN FEDERAL BASEBALL
CLUB V. NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUB, 259 U.S. 200. 
IN THAT CASE THIS COURT HAD HELD FOR REASONS GIVEN THAT PROFESSIONAL
BASEBALL WAS NOT COVERED BY THE ANTITRUST ACTS.  CONGRESS WAS ASKED
THROUGH THE YEARS TO CHANGE THE LAW IN THIS RESPECT BUT DECLINED TO DO
SO.  IN TOOLSON V. NEW YORK YANKEES, INC., 346 U.S. 356, WE FOLLOWED
THE HOLDING OF THAT CASE WITHOUT RE-EXAMINATION OF THE UNDERLYING
ISSUES "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."  LATER WE WERE ASKED TO EXTEND THE FEDERAL
BASEBALL CASE AND TO HOLD THAT THE BUSINESS OF BOXING COULD NOT WITHOUT
CONGRESSIONAL ACTION BE BROUGHT WITHIN THE ANTITRUST LAWS.  WE
EMPHATICALLY DECLINED TO DO SO IN UNITED STATES V. INTERNATIONAL BOXING
CLUB, 348 U.S. 236, NOR DID WE OVERRULE TOOLSON IN THAT CASE, DESPITE
STRONG ARGUMENTS THAT THE REASONING OF THE COURT IN THE FIRST BASEBALL
CASE WAS EQUALLY APPLICABLE TO THE BUSINESS OF BOXING.  WE SAID ABOUT
THE PROPOSED EXEMPTION OF BOXING FROM THE ANTITRUST LAWS THAT "THEIR
REMEDY, IF THEY ARE ENTITLED TO ONE, LIES IN FURTHER RESORT TO
CONGRESS."  (FN22)  THAT CASE AND THAT STATEMENT FIT THIS CASE
PRECISELY.  IN FACT, AS WE ARE ABOUT TO EXPLAIN, A FAR MORE MEANINGFUL
DISTINCTION CAN BE MADE BETWEEN EMBEZZLEMENT AND EXTORTION FOR PURPOSES
OF THIS CASE THAN IT WAS POSSIBLE TO MAKE BETWEEN BASEBALL AND BOXING
FOR PURPOSES OF THAT CASE, AS MR. JUSTICE FRANKFURTER'S DISSENTING
OPINION IN THAT CASE DEMONSTRATES. 

IF THE GOVERNMENT WANTS TO PROSECUTE THE LOCAL CRIME OF EMBEZZLEMENT,
OSTENSIBLY BECAUSE OF "TAX EVASION," IT SEEMS CLEAR TO US THAT IT
SHOULD TAKE ITS REQUEST TO CONGRESS WHICH HAS POWER TO PASS ON IT AND
WHICH HAS, TO DATE, REFUSED TO DO WHAT THE GOVERNMENT ASKS US TO DO IN
THIS CASE. 

  IV. 

OUR BRETHREN ADVANCE AS A REASON FOR OVERRULING WILCOX THE 1952
DECISION IN RUTKIN V. UNITED STATES, WHICH WAS DECIDED THREE YEARS
BEFORE WE DENIED CERTIORARI IN THE DIX CASE.  THEY SAY THAT "THE
REASONING USED IN RUTKIN LEADS US INESCAPABLY TO THE CONCLUSION THAT
WILCOX WAS THOROUGHLY DEVITALIZED."  THIS FOLLOWS, TO SOME EXTENT, THE
STATEMENT IN THE GOVERNMENT'S BRIEF THAT "WILCOX AND RUTKIN CANNOT BE
RECONCILED ON THE BASIS OF ASSERTED TECHNICAL DIFFERENCES BETWEEN THE
EXTORTIONIST AND THE EMBEZZLER  ...  .  THE PROPER COURSE, WE SUBMIT,
...  IS TO RECOGNIZE THAT THE WILCOX RATIONALE WAS REJECTED IN RUTKIN,
IS UNSOUND, AND CAN NO LONGER BE REGARDED AS HAVING VITALITY. 
EMBEZZLED FUNDS REPRESENT TAXABLE GAINS."  (FN23)    THERE IS NO DOUBT
THAT SOME OF THE REASONING IN THE RUTKIN OPINION REJECTED SOME OF THE
REASONING IN THE WILCOX OPINION.  BUT THIS IS TRUE ONLY WITH RESPECT TO
THE BROAD GENERAL STANDARDS FORMULATED IN THE TWO CASES, AND SUCH
STANDARDS OF COURSE CANNOT BE ACCEPTED AS UNIVERSAL PANACEAS TO BE
MECHANICALLY APPLIED TO SOLVE ALL THE CONCRETE PROBLEMS IN CASES LIKE
THESE.  MOREOVER, THE RUTKIN OPINION EXPRESSLY PURPORTED NOT TO
OVERRULE WILCOX AND SPECIFICALLY SAID THAT WILCOX WAS STILL TO GOVERN
CASES FITTING ITS FACTS, CLEARLY MEANING EMBEZZLEMENT CASES.  (FN24)
AND THE GOVERNMENT HAD NOT ASKED IN RUTKIN THAT WILCOX BE OVERRULED. 
ITS ARGUMENT WAS THAT WILCOX WAS "INAPPLICABLE" TO THE FACTS IN THE
RUTKIN RECORD.  THE GOVERNMENT'S BRIEF WENT ON TO EMPHASIZE THAT THE
RECORD IN WILCOX SHOWED ONLY THE BARE RECEIPT OF MONEY WHOLLY BELONGING
TO ANOTHER, WHILE RUTKIN HAD RECEIVED THE MONEY "AS A RESULT OF A
BILATERAL AGREEMENT" AND, AS THE COURT OF APPEALS HAD POINTED OUT,
"WITH A 'SEMBLANCE OF A BONA FIDE CLAIM OF RIGHT', A CONCLUSION FULLY
SUBSTANTIATED BY THE TESTIMONY OF BOTH THE PETITIONER AND THE
GOVERNMENT WITNESS REINFELD."  (FN25)  THE GOVERNMENT WENT ON TO
DISTINGUISH RUTKIN FURTHER BY POINTING OUT THAT THERE WAS "NOT THE
SLIGHTEST HINT IN THE RECORD" THAT RUTKIN EVER HAD AN OBLIGATION TO
REPAY THE FUNDS HE TOOK. 

AFTER THIS COURT WAS PERSUADED BY THE GOVERNMENT IN RUTKIN TO ACCEPT
ITS DISTINCTIONS BETWEEN RUTKIN AND WILCOX, IT SEEMS RATHER ODD TO HAVE
THE GOVERNMENT NOW CONTEND THAT THE TWO CASES ARE IRRECONCILABLE. 
WHILE WE DISAGREED, WE CAN UNDERSTAND WHY THE MAJORITY IN RUTKIN DREW
THE DISTINCTIONS IT DID.  ALTHOUGH THE VICTIM OF EITHER EMBEZZLEMENT OR
EXTORTION ORDINARILY HAS A LEGAL RIGHT TO RESTITUTION, THE EXTORTION
VICTIM, LIKE A BLACKMAIL VICTIM, CAN IN A SENSE BE CHARGED WITH
COMPLICITY IN BRINGING ABOUT THE TAXABLE EVENT IN THAT HE KNOWINGLY
SURRENDERED THE FUNDS TO THE EXTORTIONIST, SOMETIMES IN PAYMENT OF AN
ACTUAL OBLIGATION.  UNLIKE THE VICTIM OF AN ORDINARY THEFT, HE
GENERALLY KNOWS WHO HAS TAKEN THE PROPERTY FROM HIM AND HE CONSENTS TO
THE TAKING THOUGH UNDER DURESS; AND UNLIKE MOST VICTIMS OF
EMBEZZLEMENT, HE IS ABLE TO REPORT THE TAKING TO LAW ENFORCEMENT
OFFICERS DURING THE TAXABLE YEAR AND HIS FAILURE TO DO SO MIGHT BE
CONSIDERED A KIND OF CONTINUING CONSENT TO THE EXTORTIONIST'S DOMINION
OVER THE PROPERTY.  THE LONGER HE ACQUIESCES THE LESS LIKELY IT BECOMES
THAT THE EXTORTION VICTIM EVER WILL DEMAND RESTITUTION; (FN26) BUT ONCE
THE VICTIM OF AN EMBEZZLEMENT FINDS OUT THAT HIS PROPERTY HAS BEEN
STOLEN, HE MOST LIKELY WILL IMMEDIATELY MAKE EFFORTS TO GET IT BACK. 
THUS, ALTHOUGH WE STILL THINK RUTKIN WAS WRONGLY DECIDED FOR THE
REASONS EXPRESSED IN THE DISSENTING OPINION IN THAT CASE, WE CAN
UNDERSTAND THE ARGUMENT FOR APPLICATION OF A SORT OF CAVEAT EMPTOR RULE
TO PERSONS WHO SUBMIT TO BLACKMAIL OR EXTORTION, SINCE IT IS FAR FROM
CERTAIN THAT THEY WILL EVER EXPOSE THEMSELVES BY SEEKING REPAYMENT OF
WHAT THEY PAID OUT.  THE DISTINCTIONS BETWEEN CRIMES LIKE EMBEZZLEMENT
AND CRIMES LIKE BLACKMAIL AND EXTORTION, THEREFORE, ARE NOT MERELY
TECHNICAL, LEGALISTIC "ATTENUATED SUBTLETIES" FOR PURPOSES OF THIS
DECISION, BUT ARE DIFFERENCES BASED UPON PRACTICALITIES SUCH AS OFTEN
UNDERLIE THE DISTINCTIONS THAT HAVE BEEN DEVELOPED IN OUR LAW. 

IN DEPARTING FROM BOTH THE WILCOX AND RUTKIN DECISIONS TODAY, OUR
BRETHREN OFFER NO PERSUASIVE REASONS TO PROVE THAT THEIR JUDGMENT IN
OVERRULING WILCOX IS BETTER THAN THAT OF THE JUSTICES WHO DECIDED THAT
CASE.  IT CONTRIBUTES NOTHING NEW TO THE ANALYSIS OF THIS PROBLEM TO
SAY REPEATEDLY THAT THE DISHONEST MAN MUST BE SUBJECT TO TAXATION JUST
AS THE HONEST.  AS ALREADY SAID, CHIEF JUSTICE STONE AND THE OTHERS
SITTING WITH HIM ON THE WILCOX COURT FULLY ACCEPTED THAT GENERAL
PRINCIPLE AND WE DO STILL.  APPLYING IT HERE, WE WOULD SAY THE
EMBEZZLER SHOULD BE TREATED JUST LIKE THE LAW-ABIDING, HONEST BORROWER
WHO HAS OBTAINED THE OWNER'S CONSENT TO HIS USE OF THE MONEY.  (FN27)
IT WOULD BE UNTHINKABLE TO TAX THE BORROWER ON HIS "GAIN" OF THE
BORROWED FUNDS AND THEREBY SUBSTANTIALLY IMPAIR THE LENDER'S CHANCE OF
EVER RECOVERING THE DEBT.  THE INJURY THAT THE GOVERNMENT WOULD INFLICT
ON THE LENDER BY MAKING THE BORROWER LESS ABLE TO REPAY THE LOAN SURELY
WOULD NOT BE ADEQUATELY COMPENSATED BY TELLING THE LENDER THAT HE CAN
TAKE A TAX DEDUCTION FOR THE LOSS, AND IT IS EQUALLY SMALL COMFORT TO
THE EMBEZZLEMENT VICTIM FOR THE GOVERNMENT, AFTER TAKING PART OF HIS
PROPERTY AS A TAX ON THE EMBEZZLER, TO TELL THE VICTIM THAT HE CAN TAKE
A DEDUCTION FOR HIS LOSS IF HE HAS ANY INCOME AGAINST WHICH TO OFFSET
THE DEDUCTION.  THERE IS, OF COURSE, ONE OUTSTANDING DISTINCTION
BETWEEN A BORROWER AND AN EMBEZZLER, AND THAT IS THAT THE EMBEZZLER
USES THE FUNDS WITHOUT THE OWNER'S CONSENT.  THIS DISTINCTION CAN BE OF
NO IMPORTANCE FOR PURPOSES OF TAXABILITY OF THE FUNDS, HOWEVER, BECAUSE
AS A MATTER OF COMMON SENSE IT SUGGESTS THAT THERE IS, IF ANYTHING,
LESS REASON TO TAX THE EMBEZZLER THAN THE BORROWER.  BUT IF THIS
DISTINCTION IS TO BE THE REASON WHY THE EMBEZZLEMENT MUST BE TAXED JUST
AS "THE GAINS OF THE HONEST LABORER," THEN THE USE OF THIS SLOGAN IN
THIS CASE IS LAID BARE AS NO MORE THAN A MEANS OF IMPOSING A SECOND
PUNISHMENT FOR THE CRIME OF EMBEZZLEMENT WITHOUT REGARD TO REVENUE
CONSIDERATIONS, THE EFFECT ON THE RIGHTFUL OWNER, OR THE PROPER ROLE OF
THIS COURT WHEN ASKED TO OVERRULE A CRIMINAL STATUTORY PRECEDENT.  THE
DOUBLE JEOPARDY IMPLICATIONS WOULD SEEM OBVIOUS, (FN28) AND DISCUSSION
OF THE SERIOUS INADVISABILITY FOR OTHER REASONS OF THUS INJECTING THE
FEDERAL GOVERNMENT INTO LOCAL LAW ENFORCEMENT CAN BE FOUND IN THE
DISSENTING OPINION IN RUTKIN. 

WE REGRET VERY MUCH THAT IT SEEMS TO BE IMPLIED THAT THE WRITER OF
THE RUTKIN OPINION AND THOSE WHO AGREED TO IT INTENDED TO OVERRULE
WILCOX WHEN IT IS MANIFEST THAT THE LANGUAGE THE COURT USED IN RUTKIN
WAS MEANT TO LEAVE PRECISELY THE OPPOSITE IMPRESSION.  WE ARE SURE THAT
OUR BRETHREN AT THAT TIME DID NOT INTEND TO MISLEAD THE PUBLIC, AND IT
WOULD BE HARD TO IMAGINE WHY THEY SAID WHAT THEY DID IN THE RUTKIN
OPINION HAD THEY NOT SPECIFICALLY CONSIDERED AND REJECTED THE
POSSIBILITY OF OVERRULING WILCOX THEN AND THERE.  WE THINK IT IS
UNJUSTIFIABLE TO SAY NINE YEARS AFTER RUTKIN THAT IT "DEVITALIZED" OR
"REPUDIATED" THE WILCOX HOLDING WHEN THE RUTKIN OPINION SAID EXPLICITLY
THAT WILCOX IS STILL THE RULE AS TO EMBEZZLEMENT.  CONGRESS HAS SEEN
FIT TO LET BOTH DECISIONS STAND, AND WE THINK THE PRESENT COURT SHOULD
DO THE SAME. 

                                     V. 

EVEN IF WE WERE TO JOIN WITH OUR BRETHREN IN ACCEPTING THE
GOVERNMENT'S PRESENT CONTENTION THAT WILCOX AND RUTKIN CANNOT BOTH
STAND, WE WOULD DISAGREE AS TO WHICH OF THE TWO DECISIONS SHOULD NOW BE
REPUDIATED.  THIS IS TRUE NOT ONLY BECAUSE WE WOULD FEEL LESS
INHIBITION ABOUT NARROWING RATHER THAN BROADENING THE REACH OF A
PREVIOUSLY CONSTRUED CRIMINAL STATUTE.  REGARDLESS OF SUCH
CONSIDERATIONS, OUR CONVICTION THAT THE RUTKIN CASE WAS WRONGLY DECIDED
IN THIS COURT REMAINS UNDIMINISHED AND HAS BEEN FURTHER SUBSTANTIATED
BY THE SUBSEQUENT EVENTS IN THAT CONTROVERSY, WHICH SHOW ALL THE MORE
CLEARLY THE DEPLORABLE CONSEQUENCES THAT CAN RESULT WHEN FEDERAL COURTS
SUBJECT PEOPLE WHO VIOLATE STATE CRIMINAL LAWS TO A DOUBLE OR TREBLE
PROSECUTION FOR THE STATE CRIME UNDER THE GUISE OF ATTEMPTED
ENFORCEMENT OF FEDERAL TAX LAWS.  (FN29) 

FOR THE FOREGOING REASONS, AS WELL AS THE REASONS STATED IN MR.
JUSTICE WHITTAKER'S OPINION, WE WOULD REAFFIRM OUR HOLDING IN
COMMISSIONER V. WILCOX, REVERSE THIS JUDGMENT AND DIRECT THAT THE CASE
BE DISMISSED. 

FN1  G.C.M. NO. 24945, 1946-2 CUM. BULL.  27, 28.  THIS WAS PRECISELY
IN ACCORD WITH THIS COURT'S STATEMENT OF THE PROPER RULE IN THE WILCOX
OPINION: 

"TAXABLE INCOME MAY ARISE, TO BE SURE, FROM THE USE OR IN CONNECTION
WITH THE USE OF SUCH EMBEZZLED PROPERTY  ...  .  BUT APART FROM SUCH
FACTORS THE BARE RECEIPT OF PROPERTY OR MONEY WHOLLY BELONGING TO
ANOTHER LACKS THE ESSENTIAL CHARACTERISTICS OF A GAIN OR PROFIT WITHIN
THE MEANING OF SEC. 22(A)."  327 U.S., AT 408. 

FN2  SEE, FOR EXAMPLE, GREAT NORTHERN R. CO. V. SUNBURST OIL CO., 287
U.S. 358. 

FN3  SEE, FOR EXAMPLE, UNITED STATES V. L. COHEN GROCERY CO., 255
U.S. 81. 

FN4  7 CRANCH, AT 34.  AND SEE UNITED STATES V. COOLIDGE, 1 WHEAT. 
415. 

FN5  UNITED STATES V. SULLIVAN, 274 U.S. 259, 263. 

FN6  327 U.S., AT 408. 

FN7  WILCOX V. COMMISSIONER, 148 F.2D 933. 

FN8  127 F.2D 572. 

FN9  126 F.2D 723. 

FN10  127 F.2D, AT 573. 

FN11  IBID.  THE SAME REASONING CAN BE FOUND IN OUR OPINION IN ALISON
V. UNITED STATES, 344 U.S. 167, 169-170. 

FN12  127 F.2D, AT 574. 

FN13  E.G., COMMISSIONER V. SMITH, 324 U.S. 177 (COMPENSATION THROUGH
EXERCISE OF STOCK OPTION), LED TO SEC. 218 OF THE REVENUE ACT OF 1950,
ADDING SEC. 130A TO THE 1939 CODE; COMMISSIONER V. TOWER, 327 U.S. 280;
LUSTHAUS V. COMMISSIONER, 327 U.S. 293; AND COMMISSIONER V. CULBERTSON,
337 U.S. 733 (FAMILY PARTNERSHIPS), LED TO SEC. 340 OF THE REVENUE ACT
OF 1951, ADDING SEC. 191 TO THE 1939 CODE; UNITED STATES V. SILK, 331
U.S. 704 ("EMPLOYEES" FOR PURPOSE OF SOCIAL SECURITY EMPLOYMENT TAX),
LED TO THE JOINT RESOLUTION OF JUNE 14, 1948, C. 468, 62 STAT. 438,
AMENDING SEVERAL SECTIONS OF THE 1939 CODE; COMMISSIONER V. ESTATE OF
CHURCH, 335 U.S. 632, AND ESTATE OF SPIEGEL V. COMMISSIONER, 335 U.S.
701 (ESTATE TAX), LED TO THE ACT OF OCTOBER 25, 1949, SEC. 7, 63 STAT.
891, 894, AMENDING SEC. 811(C) OF THE 1939 CODE; WILMETTE PARK DIST. V.
CAMPBELL, 338 U.S. 411 (AMUSEMENT TAX), LED TO SEC. 402 OF THE REVENUE
ACT OF 1951, ADDING SEC. 1701(D) TO THE 1939 CODE; COMMISSIONER V.
KORELL, 339 U.S. 619 (AMORTIZATION OF BOND PREMIUM), LED TO SEC. 217 OF
THE REVENUE ACT OF 1950, AMENDING SEC. 125(B)(1) OF THE 1939 CODE. 

FN14  46 STAT. 1516; SEE 74 CONG. REC. 7078-7079, 7198-7199. 

FN15  H.R. 8854, 86TH CONG., 1ST SESS.; H.R. 312, 87TH CONG., 1ST
SESS. 

FN16  "TO EXPLAIN THE CAUSE OF NON-ACTION BY CONGRESS WHEN CONGRESS
ITSELF SHEDS NO LIGHT IS TO VENTURE INTO SPECULATIVE UNREALITIES. 
CONGRESS MAY NOT HAVE HAD ITS ATTENTION DIRECTED TO AN UNDESIRABLE
DECISION; AND THERE IS NO INDICATION THAT AS TO THE ST. LOUIS TRUST
CASES IT HAD, EVEN BY ANY BILL THAT FOUND ITS WAY INTO A COMMITTEE
PIGEON-HOLE."  309 U.S. 106, 119-120. 

FN17  "THUS THE AFFIRMATIVE ACTION TAKEN BY CONGRESS IN 1942
NEGATIVES ANY INFERENCE THAT OTHERWISE MIGHT BE DRAWN FROM ITS SILENCE
WHEN IT REENACTED THE OATH IN 1940."  328 U.S. 61, 70. 

FN18  223 F.2D 436. 

FN19  PETITION FOR CERTIORARI, COMMISSIONER V. ESTATE OF DIX, NO.
363, OCTOBER TERM, 1955, P. 14, N. 6. 

FN20  ID., AT 15. 

FN21  350 U.S. 894. 

FN22  348 U.S., AT 244. 

FN23  BRIEF FOR THE UNITED STATES, PP. 32-33. 

FN24  "WE DO NOT REACH IN THIS CASE THE FACTUAL SITUATION INVOLVED IN
COMMISSIONER V. WILCOX, 327 U.S. 404.  WE LIMIT THAT CASE TO ITS
FACTS.  THERE EMBEZZLED FUNDS WERE HELD NOT TO CONSTITUTE TAXABLE
INCOME TO THE EMBEZZLER UNDER SEC. 22(A).  THE ISSUE HERE IS WHETHER
MONEY EXTORTED FROM A VICTIM WITH HIS CONSENT INDUCED SOLELY BY
HARASSING DEMANDS AND THREATS OF VIOLENCE IS INCLUDED IN THE DEFINITION
OF GROSS INCOME UNDER SEC. 22(A)."  343 U.S., AT 138. 

FN25  BRIEF FOR THE UNITED STATES IN OPPOSITION TO PETITION FOR
CERTIORARI, RUTKIN V. UNITED STATES, 343 U.S. 130, PP. 13-14.  THE FULL
SENTENCE IN THE COURT OF APPEALS OPINION FROM WHICH THE GOVERNMENT
QUOTED WAS:  "SO HE (RUTKIN) DID RECEIVE THE MONEY WITH A 'SEMBLANCE OF
A BONA FIDE CLAIM OF RIGHT' AS THE EMBEZZLER HAD NOT IN COMMISSIONER OF
INTERNAL REVENUE V. WILCOX, SUPRA, 327 U.S. AT PAGE 408, 66 S. CT. AT
PAGE 549."  UNITED STATES V. RUTKIN, 189 F.2D 431, 435. 

FN26  THIS FACTUAL DISTINCTION WAS CLEARLY EMPHASIZED IN THE COURT'S
OPINION IN RUTKIN: "RUTKIN INDUCED REINFELD TO CONSENT TO PAY THE MONEY
BY CREATING A FEAR IN REINFELD THAT HARM OTHERWISE WOULD COME TO HIM
AND TO HIS FAMILY.  REINFELD THEREUPON DELIVERED HIS OWN MONEY TO
PETITIONER.  PETITIONER'S CONTROL OVER THE CASH SO RECEIVED WAS SUCH
THAT, IN THE ABSENCE OF REINFELD'S UNLIKELY REPUDIATION OF THE
TRANSACTION AND DEMAND FOR THE MONEY'S RETURN, PETITIONER COULD ENJOY
ITS USE AS FULLY AS THOUGH HIS TITLE TO IT WERE UNASSAILABLE."  RUTKIN
V. UNITED STATES, 343 U.S. 130, 136-137. 

FN27  THE ANALOGY BETWEEN THE BORROWER AND THE EMBEZZLER WAS LUCIDLY
ANALYZED BY JUDGE SIBLEY IN MCKNIGHT V. COMMISSIONER, 127 F.2D 572, 573
574. 

THE SEVERAL CASES RELIED ON BY THE COURT DO NOT, IN OUR JUDGMENT,
JUSTIFY IMPOSING A TAX UPON EMBEZZLED MONEY.  CORLISS V. BOWERS, 281
U.S. 376, INVOLVED INCOME ACCUMULATING IN A TRUST FUND BELONGING TO THE
TAXPAYER AND OVER WHICH HE RETAINED CONTROL.  NORTH AMERICAN OIL
CONSOLIDATED V. BURNET, 286 U.S. 417; UNITED STATES V. LEWIS, 340 U.S.
590; AND HEALY V. COMMISSIONER, 345 U.S. 278, WERE CASES IN WHICH THE
TAXPAYER HAD ASSERTED A BONA FIDE, THOUGH MISTAKEN, CLAIM OF RIGHT.  IN
NORTH AMERICAN OIL, THE TAXPAYER NOT ONLY HAD A BONA FIDE CLAIM TO THE
MONEY TAXED, BUT THERE HAD BEEN AN ADJUDICATION THAT HE WAS ENTITLED TO
IT, AND THERE WAS ONLY THE TENUOUS POSSIBILITY THAT A COMPETING
CLAIMANT MIGHT LATER UPSET THAT ADJUDICATION.  THE LEWIS AND HEALY
CASES INVOLVED A TAX ON PAYMENTS MADE AND RECEIVED AS A RESULT OF
MUTUAL MISTAKE, AND IT WAS HELD THAT THE ADMINISTRATION OF THE TAX LAWS
ON AN ANNUAL BASIS NEED NOT BE UPSET FOR THE CONVENIENCE OF THOSE WHO
CAUSED THE MISTAKEN PAYMENTS TO BE MADE AND REPORTED AS INCOME.  BY
CONTRAST, THE VICTIMS DO NOT CAUSE EMBEZZLEMENTS, AND THE GOVERNMENT IS
NOT MISLED OR INCONVENIENCED UNDER WILCOX BECAUSE THE EMBEZZLER IS
ALWAYS FULLY AWARE THAT THE EMBEZZLED FUNDS ARE NOT RIGHTFULLY HIS AND
PRESUMABLY WILL NOT REPORT OTHERWISE.    FN28  SEE THE DISSENTING
OPINION IN BARTKUS V. ILLINOIS, 359 U.S. 121, 150.  IT IS INTERESTING
TO NOTE THAT ON JULY 22, 1959, SHORTLY AFTER THE BARTKUS DECISION,
ILLINOIS, IN ORDER TO AVOID THE DANGER OF PROSECUTING MEN IN BOTH STATE
AND FEDERAL COURTS FOR THE SAME CRIME, PASSED A STATUTE MAKING
CONVICTION OR ACQUITTAL IN A FEDERAL PROSECUTION A DEFENSE TO A STATE
PROSECUTION FOR THE SAME CRIMINAL ACT.  ILLINOIS LAWS, 1959, P. 1893,
SEC. 1; 38 ILL. ANN. STAT. (CUM. SUPP. 1960) SEC. 601.1.  THUS, WHILE
ILLINOIS IS MOVING AWAY FROM SUCH DOUBLE PROSECUTIONS, THIS COURT IS
MOVING EVEN FURTHER THAN BARTKUS IN THE DIRECTION OF AUTHORIZING SUCH
PROSECUTIONS. 

FN29  THE SUBSEQUENT HISTORY OF THE RUTKIN-REINFELD CONTROVERSY CAN,
IN PART, BE READ IN UNITED STATES V. RUTKIN, 208 F.2D 647, ESPECIALLY
JUDGE KALODNER'S DISSENTING OPINION, AT 655; UNITED STATES V. RUTKIN,
212 F.2D 641, ESPECIALLY AT 644; AND RUTKIN V. REINFELD, 122 F. SUPP.
265, REVERSED, 229 F.2D 248. 

MR. JUSTICE CLARK, CONCURRING IN PART AND DISSENTING IN PART AS TO
THE OPINION OF THE CHIEF JUSTICE. 

ALTHOUGH I JOIN IN THE SPECIFIC OVERRULING OF COMMISSIONER V. WILCOX,
327 U.S. 404 (1946), IN THE CHIEF JUSTICE'S OPINION, I WOULD AFFIRM
THIS CONVICTION ON EITHER OF TWO GROUNDS.  I BELIEVE THAT THE COURT NOT
ONLY DEVITALIZED WILCOX, BY LIMITING IT TO ITS FACTS IN RUTKIN V.
UNITED STATES, 343 U.S. 130 (1952), BUT THAT IN EFFECT THE COURT
OVERRULED THAT CASE SUB SILENTIO IN COMMISSIONER V. GLENSHAW GLASS CO.,
348 U.S. 426 (1955).  EVEN IF THAT NOT BE TRUE, IN MY VIEW THE PROOF
SHOWS CONCLUSIVELY THAT PETITIONER, IN WILLFULLY FAILING TO CORRECTLY
REPORT HIS INCOME, PLACED NO BONA FIDE RELIANCE ON WILCOX. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER JOINS, CONCURRING IN
PART AND DISSENTING IN PART AS TO THE OPINION OF THE CHIEF JUSTICE. 

I FULLY AGREE WITH SO MUCH OF THE CHIEF JUSTICE'S OPINION AS
DISPATCHES WILCOX TO A FINAL DEMISE.  BUT AS TO THE DISPOSITION OF THIS
CASE, I THINK THAT RATHER THAN AN OUTRIGHT REVERSAL, WHICH HIS OPINION
PROPOSES, THE REVERSAL SHOULD BE FOR A NEW TRIAL. 

I SHARE THE VIEW THAT IT WOULD BE INEQUITABLE TO SUSTAIN THIS
CONVICTION WHEN BY VIRTUE OF THE RUTKIN-WILCOX DILEMMA IT MIGHT
REASONABLY HAVE BEEN THOUGHT BY ONE IN PETITIONER'S POSITION THAT NO
TAX WAS DUE IN RESPECT OF EMBEZZLED MONEYS.  FOR AS IS POINTED OUT,
RUTKIN DID NOT EXPRESSLY OVERRULE WILCOX, BUT INSTEAD MERELY CONFINED
IT "TO ITS FACTS."  HAVING NOW CONCLUDED THAT WILCOX WAS WRONGLY
DECIDED ORIGINALLY, THE PROBLEM IN THIS CASE THUS BECOMES ONE OF HOW TO
OVERRULE WILCOX "IN A MANNER THAT WILL NOT PREJUDICE THOSE WHO MIGHT
HAVE RELIED ON IT."  ANTE, P. 221. 

IT IS ARGUED, IN RELIANCE ON SPIES V. UNITED STATES, 317 U.S. 492,
AND HOLLAND V. UNITED STATES, 348 U.S. 121, THAT SO LONG AS WILCOX
REMAINED ON THE BOOKS THE ELEMENT OF "WILLFULNESS" REQUIRED IN
PROSECUTIONS OF THIS KIND (FN1) "COULD NOT BE PROVEN."  AND HENCE, THAT
THE CONVICTION OF THIS PETITIONER FAILS WITHOUT MORE.  THIS WOULD MEAN,
I TAKE IT, THAT NO FUTURE PROSECUTION OR PAST CONVICTION INVOLVING TAX
DERELICTIONS OF THIS NATURE, OCCURRING DURING THE WILCOX PERIOD, MAY BE
BROUGHT OR ALLOWED TO STAND.  I CANNOT AGREE TO SUCH A DISPOSITION,
WHICH, IN MY VIEW, IS WARRANTED BY NEITHER PRINCIPLE NOR AUTHORITY AND
WOULD CARRY MISCHIEVOUS IMPLICATIONS FOR THE FUTURE. 

THE SPIES AND HOLLAND CASES, WHICH ARE SAID TO SUPPORT OUTRIGHT
REVERSAL, STAND FOR NO MORE THAN THAT WHERE, AS HERE, A CRIMINAL TAX
STATUTE MAKES "WILLFULNESS" AN ELEMENT OF THE OFFENSE, THE GOVERNMENT
MUST PROVE AN "EVIL MOTIVE AND WANT OF JUSTIFICATION IN VIEW OF ALL THE
FINANCIAL CIRCUMSTANCES" ON THE PART OF THE DEFENDANT, IN FAILING TO DO
WHAT WAS REQUIRED OF HIM.  WHILE I AGREE THAT IN THE PRESENT CASE THIS
MADE GERMANE ON THE ISSUE OF WILLFULNESS THE PETITIONER'S RELIANCE OR
NONRELIANCE ON THE CONTINUED VITALITY OF THE WILCOX DOCTRINE, (FN2) I
CAN FIND NOTHING IN SPIES OR HOLLAND WHICH JUSTIFIES THE VIEW THAT THE
MERE EXISTENCE OF WILCOX SUFFICES ALONE TO VITIATE PETITIONER'S
CONVICTION AS A MATTER OF LAW.  IF, AS APPEARS TO HAVE BEEN THE CASE,
THERE WAS ERRONEOUS FAILURE TO TAKE THAT FACTOR INTO ACCOUNT AT THE
TRIAL ON THE ISSUE OF WILLFULNESS, THE MOST THAT SHOULD HAPPEN IS THAT
PETITIONER SHOULD BE GIVEN A NEW TRIAL.  THIS INDEED IS WHAT SPIES AND
HOLLAND AFFIRMATIVELY INDICATE AS THE RIGHT SOLUTION OF THE PROBLEM
THIS CASE PRESENTS.  IN SPIES, IT WAS SAID (AT PP. 499-500): 

"  ...  BY WAY OF ILLUSTRATION, AND NOT BY WAY OF LIMITATION, WE
WOULD THINK AFFIRMATIVE WILLFUL ATTEMPT MAY BE INFERRED FROM CONDUCT
SUCH AS KEEPING A DOUBLE SET OF BOOKS, MAKING FALSE ENTRIES OR
ALTERATIONS, OR FALSE INVOICES OR DOCUMENTS, DESTRUCTION OF BOOKS OR
RECORDS, CONCEALMENT OF ASSETS OR COVERING UP SOURCES OF INCOME,
HANDLING OF ONE'S AFFAIRS TO AVOID MAKING THE RECORDS USUAL IN
TRANSACTIONS OF THE KIND, AND ANY CONDUCT, THE LIKELY EFFECT OF WHICH
WOULD BE TO MISLEAD OR TO CONCEAL.  IF THE TAX-EVASION MOTIVE PLAYS ANY
PART IN SUCH CONDUCT THE OFFENSE MAY BE MADE OUT EVEN THOUGH THE
CONDUCT MAY ALSO SERVE OTHER PURPOSES SUCH AS CONCEALMENT OF OTHER
CRIME. 

"IN THIS CASE THERE ARE SEVERAL ITEMS OF EVIDENCE APART FROM THE
DEFAULT IN FILING THE RETURN AND PAYING THE TAX WHICH THE GOVERNMENT
CLAIMS WILL SUPPORT AN INFERENCE OF WILLFUL ATTEMPT TO EVADE OR DEFEAT
THE TAX.  THESE GO TO ESTABLISH THAT PETITIONER INSISTED THAT CERTAIN
INCOME BE PAID TO HIM IN CASH, TRANSFERRED IT TO HIS OWN BANK BY
ARMORED CAR, DEPOSITED IT, NOT IN HIS OWN NAME BUT IN THE NAMES OF
OTHERS OF HIS FAMILY, AND KEPT INADEQUATE AND MISLEADING RECORDS. 
PETITIONER CLAIMS OTHER MOTIVES ANIMATED HIM IN THESE MATTERS.  WE
INTIMATE NO OPINION.  SUCH INFERENCES ARE FOR THE JURY.  IF ON PROPER
SUBMISSION THE JURY FOUND THESE ACTS, TAKEN TOGETHER WITH WILLFUL
FAILURE TO FILE A RETURN AND WILLFUL FAILURE TO PAY THE TAX, TO
CONSTITUTE A WILLFUL ATTEMPT TO EVADE OR DEFEAT THE TAX, WE WOULD
CONSIDER CONVICTION OF A FELONY SUSTAINABLE."  TO THE SAME EFFECT, SEE
HOLLAND, SUPRA, AT P. 139. 

IN THE CASE AT HAND, THE EVIDENCE OF DEVIOUS FINANCIAL ARRANGEMENTS
MIGHT WELL SUPPORT THE INFERENCE THAT PETITIONER'S PURPOSE WAS NOT ONLY
TO COMMIT THE EMBEZZLEMENT BUT ALSO TO SECRETE AND IMMUNIZE HIS GAINS
FROM WHAT HE CONSIDERED TO BE HIS TAX LIABILITIES IN RESPECT OF THOSE
GAINS.  THE DISTRICT COURT, AS THE TRIER OF THE FACTS (THERE HAVING
BEEN NO JURY), FOUND THAT PETITIONER'S ACTS WERE "WILLFUL AND WERE DONE
IN A KNOWING AND CONSCIOUS ATTEMPT TO EVADE AND DEFEAT" HIS TAX
OBLIGATIONS.  BUT SINCE IT DOES NOT APPEAR THAT PETITIONER'S POSSIBLE
RELIANCE ON THE WILCOX DOCTRINE WAS CONSIDERED BELOW, SPIES AND HOLLAND
MAKE IT APPROPRIATE FOR US TO SEND THE CASE BACK FOR A NEW TRIAL.  THEY
DO NOT SUPPORT FORECLOSING THE GOVERNMENT FROM EVEN UNDERTAKING TO
PROVE THAT THE PETITIONER'S CONDUCT WAS "WILLFUL" IN THIS RESPECT. 

AN OUTRIGHT REVERSAL IS EQUALLY UNSOUND ON PRINCIPLE.  I TAKE IT THAT
OUR DECISIONS IN THE TAX AND ANY OTHER FIELD FOR THAT MATTER RELATE
BACK TO THE ACTUAL TRANSACTIONS WITH WHICH THEY ARE CONCERNED, AND THAT
THAT IS ONLY THE NORMAL CONCOMITANT OF THE FACT THAT WE DO NOT SIT AS
AN ADMINISTRATIVE AGENCY MAKING RULINGS FOR THE FUTURE, BUT RATHER
ADJUDICATE ACTUAL CONTROVERSIES AS TO RIGHTS AND LIABILITIES UNDER THE
LAWS OF THE UNITED STATES.  THERE CAN BE, I THINK, TWO JUSTIFICATIONS
FOR BARRING A PROSECUTION OF THIS PETITIONER IN THE UNUSUAL
CIRCUMSTANCES PRESENTED HERE:  (1) THAT BY REASON OF RUTKIN HAVING
FORMALLY LEFT INTACT THE WILCOX DOCTRINE, PETITIONER DID NOT HAVE DUE
WARNING OF HIS POSSIBLE CRIMINAL LIABILITY; AND (2) THAT THE COURT, IN
MAKING NEW "LAW" IN RUTKIN, SHOULD, LIKE THE LEGISLATURE, NOT IMPOSE
CRIMINAL LIABILITY EX POST FACTO. 

AS TO THE FIRST CONSIDERATION, WHERE THE DEFENDANT IS CHARGED IN A
CASE LIKE THIS WITH HAVING "WILLFULLY" VIOLATED THE LAW, I BELIEVE THAT
BOTH REASON AND AUTHORITY REQUIRE NO MORE THAN THAT THE TRIER OF FACT
BE INSTRUCTED THAT IT MUST TAKE INTO ACCOUNT IN DETERMINING THE
DEFENDANT'S "EVIL MOTIVE AND WANT OF JUSTIFICATION," SPIES V. UNITED
STATES, 317 U.S., AT 498, HIS POSSIBLE RELIANCE ON WILCOX, WHICH NOT
UNTIL NOW HAS THIS COURT EXPLICITLY STATED WAS WRONGLY DECIDED.  AS FAR
AS FAIRNESS TO THIS PETITIONER IS CONCERNED, I DO NOT SEE WHY THAT IS
NOT AMPLY ACCORDED BY THE DISPOSITION WHICH SPIES ITSELF EXEMPLIFIES. 
SEE P. 243, SUPRA.  ON THE OTHER HAND, IF THE TRIER OF FACT, PROPERLY
INSTRUCTED, FINDS THAT THE PETITIONER DID NOT ACT IN BONA FIDE RELIANCE
ON WILCOX, BUT DELIBERATELY REFUSED TO REPORT INCOME AND PAY TAXES
THEREON KNOWING OF HIS OBLIGATION TO DO SO AND NOT RELYING ON ANY
EXCEPTION IN THE CIRCUMSTANCES, I DO NOT SEE WHY EVEN THE STRICTEST
DEFINITION OF THE ELEMENT OF "WILLFULNESS" WOULD NOT HAVE BEEN
SATISFIED.  WILLFULNESS GOES TO MOTIVE, AND THE QUALITY OF A PARTICULAR
DEFENDANT'S MOTIVE WOULD NOT SEEM TO BE AFFECTED BY THE FACT THAT
ANOTHER TAXPAYER SIMILARLY SITUATED HAD A DIFFERENT MOTIVE. 

AN ALTOGETHER ANALOGOUS SITUATION WAS PRESENTED IN UNITED STATES V.
MURDOCK, 290 U.S. 389.  IN THAT CASE THE RESPONDENT HAD BEEN CONVICTED
OF WILLFULLY FAILING TO SUPPLY INFORMATION TO THE BUREAU OF INTERNAL
REVENUE IN THAT HE RELIED ON THE POSSIBILITY OF STATE PROSECUTION AS
JUSTIFYING HIS INVOKING THE FEDERAL PRIVIELEGE AGAINST SELF
INCRIMINATION.  THE COURT SAID IN THAT CASE: 

"  ...  HE WHOSE CONDUCT IS DEFINED AS CRIMINAL IS ONE WHO
'WILLFULLY' FAILS TO PAY THE TAX, TO MAKE A RETURN, TO KEEP THE
REQUIRED RECORDS, OR TO SUPPLY THE NEEDED INFORMATION.  CONGRESS DID
NOT INTEND THAT A PERSON, BY REASON OF A BONA FIDE MISUNDERSTANDING AS
TO HIS LIABILITY FOR THE TAX, ...  SHOULD BECOME A CRIMINAL BY HIS MERE
FAILURE TO MEASURE UP TO THE PRESCRIBED STANDARD OF CONDUCT  ...  . 

"IT FOLLOWS THAT THE RESPONDENT WAS ENTITLED TO THE CHARGE HE
REQUESTED WITH RESPECT TO HIS GOOD FAITH AND ACTUAL BELIEF.  NOT UNTIL
THIS COURT PRONOUNCED JUDGMENT IN UNITED STATES V. MURDOCK, 284 U.S.
141, HAD IT BEEN DEFINITELY SETTLED THAT ONE UNDER EXAMINATION IN A
FEDERAL TRIBUNAL COULD NOT REFUSE TO ANSWER ON ACCOUNT OF PROBABLE
INCRIMINATION UNDER STATE LAW.  THE QUESTION WAS INVOLVED, BUT NOT
DECIDED, IN BALLMAN V. FAGIN, 200 U.S. 186, 195, AND SPECIFICALLY
RESERVED IN VAJTAUER V. COMM'R OF IMMIGRATION, 273 U.S. 103, 113.  THE
TRIAL COURT COULD NOT, THEREFORE, PROPERLY TELL THE JURY THE
DEFENDANT'S ASSERTION OF THE PRIVILEGE WAS SO UNREASONABLE AND ILL
FOUNDED AS TO EXHIBIT BAD FAITH AND ESTABLISH WILLFUL WRONGDOING.  THIS
WAS THE EFFECT OF THE INSTRUCTIONS GIVEN.  WE THINK THE CIRCUIT COURT
OF APPEALS CORRECTLY UPHELD THE RESPONDENT'S RIGHT TO HAVE THE QUESTION
OF ABSENCE OF EVIL MOTIVE SUBMITTED TO THE JURY  ...  ." 

IT WOULD SEEM THAT PRECISELY THE SAME DISPOSITION IS IN ORDER IN THIS
CASE.  NOR DO I THINK THAT DISTINCTIONS IN TERMS OF THE NATURE OF THE
DEFENDANT'S LEGAL MISAPPREHENSION, ITS DEGREE, ITS JUSTIFIABILITY, OR
ITS SOURCE ARE EITHER WARRANTED OR WOULD BE MANAGEABLE AS A BASIS FOR
DECIDING FUTURE CASES. 

COMING NOW TO THE OTHER POSSIBLE RATIONALE FOR BARRING THE PROSECUTION
OF THIS PETITIONER, IT MIGHT BE ARGUED THAT PETITIONER AT THE TIME HE
FAILED TO MAKE HIS RETURN WAS NOT UNDER ANY MISAPPREHENSION AS TO THE
LAW, BUT INDEED THAT AT THE TIME AND UNDER THE DECISIONS OF THIS COURT
HIS VIEW OF THE LAW WAS ENTIRELY CORRECT.  THE ARGUMENT NOT ONLY SEEMS
TO BEG THE QUESTION, BUT RAISES FURTHER QUESTIONS AS TO THE CIVIL
LIABILITY OF ONE SITUATED IN THE CIRCUMSTANCES OF THIS PETITIONER. 
PETITIONER'S OBLIGATION HERE DERIVED NOT FROM THE DECISIONS OF THIS OR
ANY OTHER COURT, BUT FROM THE ACT OF CONGRESS IMPOSING THE TAX.  IT IS
HARD TO SEE WHAT FURTHER POINT IS BEING MADE, ONCE IT IS CONCEDED THAT
PETITIONER, IF HE WAS MISLED BY THE DECISIONS OF THIS COURT, IS
ENTITLED TO PLEAD IN DEFENSE THAT MISCONCEPTION.  ONLY IN THE MOST
METAPHORICAL SENSE HAS THE LAW CHANGED:  THE DECISIONS OF THIS COURT
HAVE CHANGED, AND THE DECISIONS OF A COURT INTERPRETING THE ACTS OF A
LEGISLATURE HAVE NEVER BEEN SUBJECT TO THE SAME LIMITATIONS WHICH ARE
IMPOSED ON LEGISLATURES THEMSELVES, UNITED STATES CONSTITUTION, ART. I,
SECS. 9, 10, FORBIDDING THEM TO MAKE ANY EX POST FACTO LAW (FN3) AND IN
THE CASE OF STATES TO IMPAIR THE OBLIGATION OF A CONTRACT.  ROSS V.
OREGON, 227 U.S. 150; NEW ORLEANS WATERWORKS CO. V. LOUISIANA SUGAR
REFINING CO., 125 U.S. 18. 

THE PROPER DISPOSITION OF THIS CASE, IN MY VIEW, IS TO TREAT AS PLAIN
ERROR, FED. RULES CRIM. PROC. 52(B), THE FAILURE OF THE TRIAL COURT AS
TRIER OF FACT TO CONSIDER WHATEVER MISAPPREHENSION MAY HAVE EXISTED IN
THE MIND OF THE PETITIONER AS TO THE APPLICABLE LAW, IN DETERMINING
WHETHER THE GOVERNMENT HAD PROVED THAT PETITIONER'S CONDUCT HAD BEEN
WILLFUL AS REQUIRED BY THE STATUTE.  ON THAT BASIS I WOULD SEND THE
CASE BACK FOR A NEW TRIAL. 

FN1  THE RELEVANT STATUTES ARE SET FORTH IN FOOTNOTES 1-2, 4-5 OF THE
CHIEF JUSTICE'S OPINION.  ANTE, PP. 214-215. 

FN2  COMPARE AMERICAN LAW INSTITUTE, MODEL PENAL CODE, TENTATIVE
DRAFT NO. 4, SEC. 2.04: 

"(1)  IGNORANCE OR MISTAKE AS TO A MATTER OF FACT OR LAW IS A DEFENSE
IF: 

"(A)  THE IGNORANCE OR MISTAKE NEGATIVES THE PURPOSE, KNOWLEDGE,
BELIEF, RECKLESSNESS OR NEGLIGENCE REQUIRED TO ESTABLISH A MATERIAL
ELEMENT OF THE OFFENSE  ...  ." 

FN3  ASIDE FROM PROBLEMS OF WARNING AND SPECIFIC INTENT, THE POLICY
OF THE PROHIBITION AGAINST EX POST FACTO LEGISLATION WOULD SEEM TO REST
ON THE APPREHENSION THAT THE LEGISLATURE, IN IMPOSING PENALTIES ON PAST
CONDUCT, EVEN THOUGH THE CONDUCT COULD PROPERLY HAVE BEEN MADE CRIMINAL
AND EVEN THOUGH THE DEFENDANT WHO ENGAGED IN THAT CONDUCT IN THE PAST
BELIEVED HE WAS DOING WRONG (AS FOR INSTANCE WHEN THE PENALTY IS
INCREASED RETROACTIVELY ON AN EXISTING CRIME), MAY BE ACTING WITH A
PURPOSE NOT TO PREVENT DANGEROUS CONDUCT GENERALLY BUT TO IMPOSE BY
LEGISLATION A PENALTY AGAINST SPECIFIC PERSONS OR CLASSES OF PERSONS. 
THAT THIS POLICY IS INAPPLICABLE TO DECISIONS OF THE COURTS SEEMS
OBVIOUS:  THEIR OPPORTUNITY FOR DISCRIMINATION IS MORE LIMITED THAN THE
LEGISLATURE'S, IN THAT THEY CAN ONLY ACT IN CONSTRUING EXISTING LAW IN
ACTUAL LITIGATION.  GIVEN THE DIVERGENT PULLS OF FLEXIBILITY AND
PRECEDENT IN OUR CASE LAW SYSTEM, IT IS DISQUIETING TO THINK WHAT
PERPLEXITIES AND WHAT SUBTLETIES OF DISTINCTION WOULD BE CREATED IN
APPLYING THIS POLICY, WHICH SO PROPERLY LIMITS LEGISLATIVE ACTION, TO
THE DECISIONS OF THE COURTS. 

MR. JUSTICE WHITTAKER, WHOM MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS
JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

THE STARTING POINT OF ANY INQUIRY AS TO WHAT CONSTITUTES TAXABLE
INCOME MUST BE THE SIXTEENTH AMENDMENT, WHICH GRANTS CONGRESS THE POWER
"TO LAY AND COLLECT TAXES ON INCOMES, FROM WHATEVER SOURCE DERIVED  ...
."  IT HAS LONG BEEN SETTLED THAT CONGRESS' BROAD STATUTORY
DEFINITIONS OF TAXABLE INCOME WERE INTENDED "TO USE THE FULL MEASURE OF
THE SIXTEENTH AMENDMENT'S TAXING POWER."  HELVERING V. CLIFFORD, 309
U.S. 331, 334; DOUGLAS V. WILLCUTS, 296 U.S. 1, 9.  EQUALLY WELL
SETTLED IS THE PRINCIPLE THAT THE SIXTEENTH AMENDMENT "IS TO BE TAKEN
AS WRITTEN AND IS NOT TO BE EXTENDED BEYOND THE MEANING CLEARLY
INDICATED BY THE LANGUAGE USED."  EDWARDS V. CUBA R. CO., 268 U.S. 628,
631.  (FN1)  THE LANGUAGE OF THE SIXTEENTH AMENDMENT, AS WELL AS OUR
PRIOR CONTROLLING DECISIONS, COMPELS ME TO CONCLUDE THAT THE QUESTION
NOW BEFORE US - WHETHER AN EMBEZZLER RECEIVES TAXABLE INCOME AT THE
TIME OF HIS UNLAWFUL TAKING - MUST BE ANSWERED NEGATIVELY.  SINCE THE
PREVAILING OPINION REACHES AN OPPOSITE CONCLUSION, I MUST RESPECTFULLY
DISSENT FROM THAT HOLDING, ALTHOUGH I CONCUR IN THE COURT'S JUDGMENT
REVERSING PETITIONER'S CONVICTION.  I AM CONVINCED THAT COMMISSIONER V.
WILCOX, 327 U.S. 404, WHICH IS TODAY OVERRULED, WAS CORRECTLY DECIDED
ON THE BASIS OF EVERY CONTROLLING PRINCIPLE USED IN DEFINING TAXABLE
INCOME SINCE THE SIXTEENTH AMENDMENT'S ADOPTION. 

THE CHIEF JUSTICE'S OPINION, ALTHOUGH IT CORRECTLY RECITES WILCOX'S
HOLDING THAT "EMBEZZLED MONEY DOES NOT CONSTITUTE TAXABLE INCOME TO THE
EMBEZZLER IN THE YEAR OF THE EMBEZZLEMENT," FAILS TO EXPLAIN OR TO
ANSWER THE TRUE BASIS OF THAT HOLDING.  WILCOX DID NOT HOLD THAT
EMBEZZLED FUNDS MAY NEVER CONSTITUTE TAXABLE INCOME TO THE EMBEZZLER. 
TO THE CONTRARY, IT EXPRESSLY RECOGNIZED THAT AN EMBEZZLER MAY REALIZE
A TAXABLE GAIN TO THE FULL EXTENT OF THE AMOUNT TAKEN, IF AND WHEN IT
EVER BECOMES HIS.  THE APPLICABLE TEST OF TAXABLE INCOME, I.E., THE
"PRESENCE OF A CLAIM OF RIGHT TO THE ALLEGED GAIN," OF WHICH WILCOX
SPOKE, WAS BUT A CORRELATIVE STATEMENT OF THE FACTOR UPON WHICH THE
DECISION PLACED ITS WHOLE EMPHASIS THROUGHOUT, NAMELY, THE "ABSENCE OF
A DEFINITE, UNCONDITIONAL OBLIGATION TO REPAY OR RETURN THE MONEY." 
327 U.S., AT 408.  IN HOLDING THAT THIS TEST WAS NOT MET AT THE TIME OF
THE EMBEZZLEMENT, THE WILCOX OPINION REPEATEDLY STRESSED THAT THE
EMBEZZLER HAD NO "BONA FIDE LEGAL OR EQUITABLE CLAIM" TO THE EMBEZZLED
FUNDS, IBID.; THAT THE VICTIM NEVER "CONDONED OR FORGAVE THE TAKING OF
THE MONEY AND STILL HOLDS HIM LIABLE TO RESTORE IT," ID., AT 406; AND
THAT THE "DEBTOR-CREDITOR RELATIONSHIP WAS DEFINITE AND
UNCONDITIONAL."  ID., AT 409.  THESE STATEMENTS ALL EXPRESS THE SAME
BASIC FACT - THE FACT WHICH IS EMPHASIZED MOST STRONGLY IN THE
OPINION'S CONCLUSION EXPLAINING WHY THE EMBEZZLER HAD NOT YET RECEIVED
TAXABLE INCOME: "SANCTIONING A TAX UNDER THE CIRCUMSTANCES BEFORE US
WOULD SERVE ONLY TO GIVE THE UNITED STATES AN UNJUSTIFIED PREFERENCE AS
TO PART OF THE MONEY WHICH RIGHTFULLY AND COMPLETELY BELONGS TO THE
TAXPAYER'S EMPLOYER."  ID., AT 410. 

HOWEVER, WILCOX PLAINLY STATED THAT "IF THE UNCONDITIONAL
INDEBTEDNESS IS CANCELLED OR RETIRED, TAXABLE INCOME MAY ADHERE, UNDER
CERTAIN CIRCUMSTANCES, TO THE TAXPAYER."  327 U.S., AT 408.  MORE
SPECIFICALLY, IT RECOGNIZED THAT HAD THE EMBEZZLER'S VICTIM "CONDONED
OR FORGIVEN ANY PART OF THE INDEBTEDNESS, THE EMBEZZLER MIGHT HAVE BEEN
SUBJECT TO TAX LIABILITY TO THAT EXTENT," ID., AT 410, I.E., IN THE TAX
YEAR OF SUCH FORGIVENESS. 

THESE STATEMENTS REFLECT AN UNDERSTANDING OF, AND REGARD FOR,
SUBSTANTIVE TAX LAW CONCEPTS SOLIDLY ENTRENCHED IN OUR PRIOR
DECISIONS.  SINCE OUR LANDMARK CASE OF UNITED STATES V. KIRBY LUMBER
CO., 284 U.S. 1, IT HAS BEEN SETTLED THAT, UPON A DISCHARGE OF
INDEBTEDNESS BY AN EVENT OTHER THAN FULL REPAYMENT, THE DEBTOR REALIZES
A TAXABLE GAIN IN THE YEAR OF DISCHARGE TO THE EXTENT OF THE
INDEBTEDNESS THUS EXTINGUISHED.  SUCH GAINS ARE COMMONLY REFERRED TO AS
ONES REALIZED THROUGH "BARGAIN CANCELLATIONS" OF INDEBTEDNESS, AND IT
WAS IN THIS AREA, AND INDEED, IN KIRBY LUMBER CO. ITSELF, THAT THE
"ACCESSION" THEORY OR "ECONOMIC GAIN" CONCEPT OF TAXABLE INCOME, UPON
WHICH THE CHIEF JUSTICE'S OPINION TODAY MISTAKENLY RELIES, FOUND ITS
GENESIS.  IN THAT CASE, THE TAXPAYER, A CORPORATION, HAD REDUCED A
PORTION OF ITS DEBT, WITH A CORRESPONDING GAIN IN ASSETS, BY PURCHASING
ITS BONDS IN THE OPEN MARKET AT CONSIDERABLY LESS THAN THEIR ISSUE
PRICE.  MR. JUSTICE HOLMES, WHO WROTE THE COURT'S OPINION, FOUND IT
UNNECESSARY TO STATE THE ELEMENTARY PRINCIPLE THAT, SO LONG AS THE
BONDS REMAINED A FULLY ENFORCEABLE DEBT OBLIGATION OF THE TAXPAYER,
THERE COULD BE NO TAXABLE GAIN.  HOWEVER, WHEN THE TAXPAYER RETIRED THE
DEBT BY PURCHASING THE BONDS FOR LESS THAN THEIR FACE VALUE, IT "MADE A
CLEAR TAXABLE GAIN" AND "REALIZED WITHIN THE YEAR AN ACCESSION TO
INCOME" IN THE AMOUNT OF ITS BARGAIN.  284 U.S., AT 3. 

THIS DOCTRINE HAS SINCE BEEN REAFFIRMED AND STRENGTHENED BY US, SEE,
E.G., HELVERING V. AMERICAN CHICLE CO., 291 U.S. 426; COMMISSIONER V.
JACOBSON, 336 U.S. 28, AND BY THE LOWER FEDERAL COURTS IN NUMEROUS
DECISIONS INVOLVING A VARIETY OF "BARGAIN CANCELLATIONS" OF
INDEBTEDNESS, AS BY A CREDITOR'S RELEASE CONDONING OR FORGIVING THE
INDEBTEDNESS IN WHOLE OR IN PART, (FN2) OR BY THE RUNNING OF A STATUTE
OF LIMITATIONS BARRING THE LEGAL ENFORCEABILITY OF THE OBLIGATION. 
(FN3)  IN NONE OF THESE CASES HAS IT BEEN SUGGESTED THAT A TAXABLE GAIN
MIGHT BE REALIZED BY THE DEBTOR AT ANY TIME PRIOR TO THE EFFECTIVE DATE
OF DISCHARGE, AND AS WILCOX RECOGNIZED, THERE IS NO RATIONAL BASIS ON
WHICH TO JUSTIFY SUCH A RULE WHERE THE DEBT ARISES THROUGH
EMBEZZLEMENT. 

AN EMBEZZLER, LIKE A COMMON THIEF, ACQUIRES NOT A SEMBLANCE OF RIGHT,
TITLE, OR INTEREST IN HIS PLUNDER, AND WHETHER HE SPENDS IT OR NOT, HE
IS INDEBTED TO HIS VICTIM IN THE FULL AMOUNT TAKEN AS SURELY AS IF HE
HAD LEFT A SIGNED PROMISSORY NOTE AT THE SCENE OF THE CRIME.  OF NO
CONSEQUENCE FROM ANY STANDPOINT IS THE ABSENCE OF SUCH FORMALITIES AS
(IN THE WORDS OF THE PREVAILING OPINION) "THE CONSENSUAL RECOGNITION,
EXPRESS OR IMPLIED, OF AN OBLIGATION TO REPAY."  THE LAW READILY
IMPLIES WHATEVER "CONSENSUAL RECOGNITION" IS NEEDED FOR THE RIGHTFUL
OWNER TO ASSERT AN IMMEDIATELY RIPE AND ENFORCEABLE OBLIGATION OF
REPAYMENT AGAINST THE WRONGFUL TAKER.  THESE PRINCIPLES ARE NOT
"ATTENUATED SUBTLETIES" BUT ARE AMONG THE CLEAREST AND MOST EASILY
APPLIED RULES OF OUR LAW.  THEY EXIST TO PROTECT THE RIGHTS OF THE
INNOCENT VICTIM, AND WE SHOULD ACCORD THEM FULL RECOGNITION AND
RESPECT. 

THE FACT THAT AN EMBEZZLER'S VICTIM MAY HAVE LESS CHANCE OF SUCCESS
THAN OTHER CREDITORS IN SEEKING REPAYMENT FROM HIS DEBTOR IS NOT A
VALID REASON FOR US FURTHER TO DIMINISH HIS PROSPECTS BY ADOPTING A
RULE THAT WOULD ALLOW THE COMMISSIONER OF INTERNAL REVENUE TO ASSERT
AND ENFORCE A PRIOR FEDERAL TAX LIEN AGAINST THAT WHICH "RIGHTFULLY AND
COMPLETELY BELONGS" TO THE VICTIM.  COMMISSIONER V. WILCOX, SUPRA, AT
410.  THE CHIEF JUSTICE'S OPINION QUITE UNDERSTANDABLY EXPRESSES MUCH
CONCERN FOR "HONEST TAXPAYERS," BUT IT ATTEMPTS NEITHER TO DENY NOR
JUSTIFY THE MANIFEST INJURY THAT ITS HOLDING WILL INFLICT ON THOSE
HONEST TAXPAYERS, VICTIMIZED BY EMBEZZLERS, WHO WILL FIND THEIR CLAIMS
FOR RECOVERY SUBORDINATED TO FEDERAL TAX LIENS.  STATUTORY PROVISIONS,
BY WHICH WE ARE BOUND, CLEARLY AND UNEQUIVOCALLY ACCORD PRIORITY TO
FEDERAL TAX LIENS OVER THE CLAIMS OF OTHERS, INCLUDING "JUDGMENT
CREDITORS."  (FN4) 

HOWEVER, IF IT LATER HAPPENS THAT THE DEBTOR-CREDITOR RELATIONSHIP
BETWEEN THE EMBEZZLER AND HIS VICTIM IS DISCHARGED BY SOMETHING OTHER
THAN FULL REPAYMENT, SUCH AS BY THE RUNNING OF A STATUTE OF LIMITATIONS
AGAINST THE VICTIM'S CLAIM, OR BY A RELEASE GIVEN FOR LESS THAN THE
FULL AMOUNT OWED, THE EMBEZZLER AT THAT TIME, BUT NOT BEFORE, WILL HAVE
MADE A CLEAR TAXABLE GAIN AND REALIZED "AN ACCESSION TO INCOME" WHICH
HE WILL BE REQUIRED UNDER FULL PENALTY OF THE LAW TO REPORT IN HIS
FEDERAL INCOME TAX RETURN FOR THAT YEAR.  NO HONEST TAXPAYER COULD BE
HARMED BY THIS RULE. 

THE INHERENT SOUNDNESS OF THIS RULE COULD NOT BE MORE CLEARLY
DEMONSTRATED THAN AS APPLIED TO THE FACTS OF THE CASE BEFORE US.
PETITIONER, A LABOR UNION OFFICIAL, CONCEDEDLY EMBEZZLED SUMS TOTALING
MORE THAN $738,000 FROM THE UNION'S FUNDS, OVER A PERIOD EXTENDING FROM
1951 TO 1954.  WHEN THE SHORTAGES WERE DISCOVERED IN 1956, THE UNION AT
ONCE FILED CIVIL ACTIONS AGAINST PETITIONER TO COMPEL REPAYMENT.  FOR
REASONS WHICH NEED NOT BE DETAILED HERE, PETITIONER EFFECTED A
SETTLEMENT AGREEMENT WITH THE UNION ON JULY 30, 1958, WHEREBY, IN
EXCHANGE FOR RELEASES FULLY DISCHARGING HIS INDEBTEDNESS, HE REPAID TO
THE UNION THE SUM OF $13,568.50.  ACCORDINGLY, AT LEAST SO FAR AS THE
PRESENT RECORD DISCLOSES, PETITIONER CLEARLY REALIZED A TAXABLE GAIN IN
THE YEAR THE RELEASES WERE EXECUTED, TO THE EXTENT OF THE DIFFERENCE
BETWEEN THE AMOUNT TAKEN AND THE SUM RESTORED.  HOWEVER, THE GOVERNMENT
BROUGHT THE PRESENT ACTION AGAINST HIM, NOT FOR HIS FAILURE TO REPORT
THIS GAIN IN HIS 1958 RETURN, BUT FOR HIS FAILURE TO REPORT THAT HE HAD
INCURRED "INCOME" FROM - ACTUALLY INDEBTEDNESS TO - THE UNION IN EACH
OF THE YEARS 1951 THROUGH 1954.  IT IS TRUE THAT THE GOVERNMENT BROUGHT
A CRIMINAL EVASION PROSECUTION RATHER THAN A CIVIL DEFICIENCY
PROCEEDING AGAINST PETITIONER, BUT THIS CAN IN NO WAY ALTER THE
SUBSTANTIVE TAX LAW RULES WHICH ALONE ARE DETERMINATIVE OF LIABILITY IN
EITHER CASE. 

THERE CAN BE NO DOUBT THAT UNTIL THE RELEASES WERE EXECUTED IN 1958,
PETITIONER AND THE UNION STOOD IN AN ABSOLUTE AND UNCONDITIONAL DEBTOR
CREDITOR RELATIONSHIP, AND, UNDER ALL OF OUR RELEVANT DECISIONS, NO
TAXABLE EVENT COULD HAVE OCCURRED UNTIL THE INDEBTEDNESS WAS DISCHARGED
FOR LESS THAN FULL REPAYMENT.  APPLICATION OF THE NORMAL RULE IN SUCH
CASES WILL NOT HINDER THE EFFICIENT AND ORDERLY ADMINISTRATION OF THE
TAX LAWS, ANY MORE THAN IT DOES IN OTHER SITUATIONS INVOLVING "BARGAIN
CANCELLATIONS" OF INDEBTEDNESS.  MORE IMPORTANTLY, IT WILL ENHANCE THE
CREDITOR'S POSITION BY ASSURING THAT PRIOR FEDERAL TAX LIENS WILL NOT
ATTACH TO THE SUBJECT OF THE DEBT WHEN HE SEEKS TO RECOVER IT. 

NOTWITHSTANDING ALL OF THIS, THE CHIEF JUSTICE'S OPINION CONCLUDES
THAT THERE IS NO DIFFERENCE BETWEEN EMBEZZLED FUNDS AND "GAINS" FROM
OTHER "ILLEGAL SOURCES," AND IT POINTS TO THE FACT THAT CONGRESS, IN
ITS 1916 REVISION OF THE INCOME TAX ACT, OMITTED THE WORD "LAWFUL" IN
DESCRIBING BUSINESSES WHOSE INCOME WAS TO BE TAXED.  THE OPINION THEN
CITES UNITED STATES V. SULLIVAN, 274 U.S. 259, IN WHICH IT WAS HELD
THAT, UNDER THE REVISED STATUTE, GAINS FROM ILLICIT TRAFFIC IN LIQUOR
MUST BE REPORTED IN GROSS INCOME, SINCE THERE IS NO "REASON WHY THE
FACT THAT A BUSINESS IS UNLAWFUL SHOULD EXEMPT IT FROM PAYING THE TAXES
THAT IF LAWFUL IT WOULD HAVE TO PAY."  ID., AT 263.  THAT THEORY HAS
BEEN THE PRIMARY BASIS FOR TAXING "UNLAWFUL GAINS OF MANY KINDS" WHICH
THE PREVAILING OPINION TODAY RECITES, SUCH AS BLACK MARKET PROFITS,
GAMBLING PROCEEDS, MONEY DERIVED FROM THE SALE OF UNLAWFUL INSURANCE
POLICIES, ETC.  (FN5)  FOR, EVEN IF LAWFUL, THE GAINS FROM SUCH
ACTIVITIES WOULD CLEARLY NOT BE EXEMPTED FROM TAXATION.  HOWEVER, AS
APPLIED TO EMBEZZLED FUNDS, THE HOLDING IN SULLIVAN CONTRADICTS, RATHER
THAN SUPPORTS, THE COURT'S CONCLUSION TODAY.  OBVIOUSLY, EMBEZZLEMENT
COULD NEVER BECOME "LAWFUL" AND STILL RETAIN ITS CHARACTER.  IF
"LAWFUL," IT WOULD CONSTITUTE NOTHING MORE THAN A LOAN, OR POSSIBLY A
GIFT, TO THE "EMBEZZLER," NEITHER OF WHICH WOULD PRODUCE A TAXABLE GAIN
TO HIM. 

THERE IS STILL ANOTHER OBVIOUS AND IMPORTANT DISTINCTION BETWEEN
EMBEZZLEMENT AND THE VARIETIES OF ILLEGAL ACTIVITY LISTED BY THE
PREVAILING OPINION - ONE WHICH CLEARLY CALLS FOR A DIFFERENT TAX
TREATMENT.  BLACK MARKETEERING, GAMBLING, BRIBERY, GRAFT AND LIKE
ACTIVITIES GENERALLY GIVE RISE TO NO LEGALLY ENFORCEABLE RIGHT OF
RESTITUTION - TO NO DEBTOR-CREDITOR RELATIONSHIP WHICH THE LAW WILL
RECOGNIZE.  (FN6)  CONDEMNED EITHER BY STATUTE OR PUBLIC POLICY, OR
BOTH, SUCH TRANSACTIONS ARE VOID AB INITIO.  SINCE ANY CONSIDERATION
WHICH MAY HAVE PASSED IS NOT LEGALLY RECOVERABLE, ITS RECIPIENT HAS
REALIZED A TAXABLE GAIN, AN "ACCESSION TO INCOME," AS CLEARLY AS IF HIS
"INDEBTEDNESS" HAD BEEN DISCHARGED BY A FULL RELEASE OR BY THE RUNNING
OF A  STATUTE OF LIMITATIONS.  AS WE HAVE ALREADY SHOWN AT LENGTH,
QUITE THE OPPOSITE IS TRUE WHEN AN EMBEZZLEMENT OCCURS; FOR THEN THE
VICTIM ACQUIRES AN IMMEDIATELY RIPE AND ENFORCEABLE CLAIM TO REPAYMENT,
AND THE EMBEZZLER ASSUMES A LEGAL DEBT EQUAL TO HIS ACQUISITION. 

TO REACH THE RESULT THAT IT DOES TODAY, THE CHIEF JUSTICE'S OPINION
CONSTRUCTS THE FOLLOWING THEORY FOR DEFINING TAXABLE INCOME: 

"WHEN A TAXPAYER ACQUIRES EARNINGS, LAWFULLY OR UNLAWFULLY, WITHOUT
THE CONSENSUAL RECOGNITION, EXPRESS OR IMPLIED, OF AN OBLIGATION TO
REPAY AND WITHOUT RESTRICTION AS TO THEIR 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.'  NORTH
AMERICAN OIL V. BURNET, SUPRA, AT P. 424.  IN SUCH CASE, THE TAXPAYER
HAS 'ACTUAL COMMAND OVER THE PROPERTY TAXED - THE ACTUAL BENEFIT FOR
WHICH THE TAX IS PAID,' CORLISS V. BOWERS, SUPRA.  THIS STANDARD BRINGS
WRONGFUL APPROPRIATIONS WITHIN THE BROAD SWEEP OF 'GROSS INCOME'; IT
EXCLUDES LOANS.  WHEN A LAW-ABIDING TAXPAYER MISTAKENLY RECEIVES INCOME
IN ONE YEAR, WHICH RECEIPT IS ASSAILED AND FOUND TO BE INVALID IN A
SUBSEQUENT YEAR, THE TAXPAYER MUST NONETHELESS REPORT THE AMOUNT AS
'GROSS INCOME' IN THE YEAR RECEIVED.  UNITED STATES V. LEWIS, SUPRA;
HEALY V. COMMISSIONER, SUPRA."    THIS NOVEL FORMULA FINDS NO SUPPORT
IN OUR PRIOR DECISIONS, LEAST OF ALL IN THOSE WHICH ARE CITED. 
CORLISS V. BOWERS, 281 U.S. 376, INVOLVED NOTHING MORE THAN AN INTER
VIVOS TRUST CREATED BY THE TAXPAYER TO PAY THE INCOME TO HIS WIFE. 
SINCE HE HAD RESERVED THE POWER TO ALTER OR ABOLISH THE TRUST AT WILL,
ITS INCOME WAS TAXABLE TO HIM UNDER THE EXPRESS PROVISIONS OF SEC.
219(G), (H) OF THE REVENUE ACT OF 1924.  NORTH AMERICAN OIL V. BURNET,
286 U.S. 417, IS THE CASE WHICH INTRODUCED THE PRINCIPLE SINCE USED TO
FACILITATE UNIFORMITY AND CERTAINTY IN ANNUAL TAX ACCOUNTING PROCEDURE,
I.E., THAT A TAXPAYER MUST REPORT IN GROSS INCOME, IN THE YEAR IN WHICH
RECEIVED, MONEY OR PROPERTY ACQUIRED UNDER A "CLAIM OF RIGHT" - A
COLORABLE CLAIM OF THE RIGHT TO EXCLUSIVE POSSESSION OF THE MONEY OR
PROPERTY.  THUS, IN ITS COMPLETE FORM, THE SENTENCE IN NORTH AMERICAN
OIL FROM WHICH THE ABOVE-QUOTED FRAGMENT WAS EXTRACTED READS:  "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."  ID., AT 424.  BUT EMBEZZLED FUNDS,
LIKE STOLEN PROPERTY GENERALLY, ARE NOT "EARNINGS" IN ANY SENSE AND ARE
HELD WITHOUT A VESTIGE OF A COLORABLE CLAIM OF RIGHT; THEY CONSTITUTE
THE PRINCIPAL OF A DEBT.  OF NO SIGNIFICANCE WHATEVER IS THE FORMALITY
OF "CONSENSUAL RECOGNITION, EXPRESS OR IMPLIED" OF AN OBLIGATION TO
REPAY.   BY SUBSTITUTING THIS MEANINGLESS ABSTRACTION IN PLACE OF THE
OMITTED PORTION OF THE NORTH AMERICAN OIL TEST OF WHEN A RECEIPT
CONSTITUTES TAXABLE INCOME, THE PREVAILING OPINION TODAY GOES FAR
BEYOND OVERRULING WILCOX - IT REDUCES A SUBSTANTIAL BODY OF TAX LAW
INTO UNCERTAINTY AND CONFUSION.  THE ABOVE-CITED CASE OF UNITED STATES
V. LEWIS, 340 U.S. 590, DECIDED 19 YEARS AFTER NORTH AMERICAN OIL,
DEMONSTRATES THE TRUTH OF THIS.  FOR THERE WE SAID: 

"THE 'CLAIM OF RIGHT' INTERPRETATION OF THE TAX LAWS HAS LONG BEEN
USED TO GIVE FINALITY TO THE ACCOUNTING PERIOD, AND IS NOW DEEPLY
ROOTED IN THE FEDERAL TAX SYSTEM  ...  .  WE SEE NO REASON WHY THE
COURT SHOULD DEPART FROM THIS WELL-SETTLED INTERPRETATION MERELY
BECAUSE IT RESULTS IN AN ADVANTAGE OR DISADVANTAGE TO A TAXPAYER."  340
U.S., AT 592. 

THE SAME PRINCIPLE WAS REITERATED AND APPLIED IN HEALY V.
COMMISSIONER, 345 U.S. 278. 

THE SUPPOSED CONFLICT BETWEEN WILCOX AND RUTKIN, UPON WHICH THE CHIEF
JUSTICE'S OPINION SEEKS TO JUSTIFY ITS REPUDIATION OF WILCOX, (FN7) HAS
BEEN ADEQUATELY TREATED IN THE OPINION OF MR. JUSTICE BLACK, AND I
AGREE WITH HIM THAT THOSE CASES WERE FULLY INTENDED TO BE, AND ARE,
RECONCILABLE, BOTH ON THEIR CONTROLLING FACTS AND APPLICABLE LAW.  IF
THE UNNECESSARILY BROAD LANGUAGE USED IN THE RUTKIN OPINION HAS MISLED
ANY OF THE LOWER FEDERAL COURTS IN THEIR UNDERSTANDING OF THE
PRINCIPLES UNDERLYING WILCOX, WE SHOULD CLARIFY THEIR UNDERSTANDING AT
THIS TIME, AND CONTINUE OUR ADHERENCE TO "A PRIOR DOCTRINE MORE
EMBRACING IN ITS SCOPE, INTRINSICALLY SOUNDER, AND VERIFIED BY
EXPERIENCE."  HELVERING V. HALLOCK, 309 U.S. 106, 119. 

FN1  "A PROPER REGARD FOR ITS GENESIS, AS WELL AS ITS VERY CLEAR
LANGUAGE, REQUIRES ALSO THAT THE SIXTEENTH AMENDMENT SHALL NOT BE
EXTENDED BY LOOSE CONSTRUCTION  ...  .  CONGRESS CANNOT BY ANY
DEFINITION OF INCOME IT MAY ADOPT CONCLUDE THE MATTER, SINCE IT CANNOT
BY LEGISLATION ALTER THE CONSTITUTION, FROM WHICH ALONE IT DERIVES ITS
POWER TO LEGISLATE, AND WITHIN WHOSE LIMITATIONS ALONE THAT POWER CAN
BE LAWFULLY EXERCISED."  EISNER V. MACOMBER, 252 U.S. 189, 206. 

FN2  SEE, E.G., SPEAR BOX CO. V. COMMISSIONER, 182 F.2D 844 (C.A.2D
CIR.); HELVERING V. JANE HOLDING CORP., 109 F.2D 933 (C.A. 8TH CIR.);
PACIFIC MAGNESIUM, INC., V. WESTOVER, 86 F. SUPP. 644 (D.C.S.D. CAL.). 

FN3  SEE, E.G., SCHWEPPE V. COMMISSIONER, 168 F.2D 284 (C.A. 9TH
CIR.); NORTH AMERICAN COAL CORP. V. COMMISSIONER, 97 F.2D 325 (C.A. 6TH
CIR.); SECURITIES CO. V. UNITED STATES, 85 F. SUPP. 532
(D.C.S.D.N.Y.). 

FN4  U.S.C. SECS. 6321-6323, 6331; BANKRUPTCY ACT, SEC. 64(A), 11
U.S.C. SEC. 104(A).  MOREOVER, R.S. SEC. 3466 (1875), NOW CODIFIED IN
31 U.S.C. SEC. 191, PERTAINING TO STATE INSOLVENCY PROCEEDINGS AGAINST
DEBTORS, COMMANDS THAT "THE DEBTS DUE TO THE UNITED STATES SHALL BE
FIRST SATISFIED."  WE LONG AGO ESTABLISHED THAT THE TERM "DEBTS" IN
THIS STATUTE INCLUDES DELINQUENT FEDERAL TAXES.  PRICE V. UNITED
STATES, 269 U.S. 492, 499-500.  AND EVEN THOUGH THE TAX CLAIM OF THE
GOVERNMENT MAY BE ONLY A GENERAL LIEN, WITH NOTICE THEREOF NOT YET
FILED IN THE PROPER LOCAL OFFICE PURSUANT TO 26 U.S.C. SEC. 6323, WE
HAVE HELD THAT IT MUST BE ACCORDED PRIORITY OVER THE CLAIMS OF ALL
PRIOR GENERAL LIENHOLDERS, UNDER R.S. SEC. 3466, 31 U.S.C. SEC. 191. 
UNITED STATES V. CITY OF NEW BRITAIN, 347 U.S. 81, 84-85; UNITED STATES
V. GILBERT ASSOCIATES, 345 U.S. 361, 366; UNITED STATES V. TEXAS, 314
U.S. 480, 488.  SEE MERTENS, LAW OF FEDERAL INCOME TAXATION, SEC.
12.103, NOTE 67; ID., SECS. 54.10-54.56. 

FN5  SEE CASES CITED IN RUTKIN V. UNITED STATES, 343 U.S. 130, 137,
NOTE 8.  SEE ALSO UNITED STATES V. BRUSWITZ, 219 F.2D 59 (C.A.2D CIR.);
STEINBERG V. UNITED STATES, 14 F.2D 564 (C.A.2D CIR.); BARKER V. UNITED
STATES, 88 CT. CL. 468, 26 F. SUPP. 1004; SILBERMAN V. COMMISSIONER, 44
B.T.A. 600. 

FN6  RESTATEMENT, CONTRACTS, SEC. 598; 6 CORBIN, CONTRACTS, SECS.
1373 ET SEQ. (1951).  THAT THE RULE APPLIES EVEN AS TO "UNLAWFUL
INSURANCE POLICIES" IS UNDOUBTED.  PATTERSON, ESSENTIALS OF INSURANCE
LAW (2D ED. 1957), SEC. 43, AT 186. 

FN7  I CANNOT AGREE WITH THE CHIEF JUSTICE'S ASSERTION THAT WILCOX
HAS BEEN "THOROUGHLY DEVITALIZED" BY RUTKIN.  SEE, E.G., THE RECENT
CASE OF UNITED STATES V. PEELLE, 159 F. SUPP. 45, (D.C.E.D.N.Y.,
1958).  THERE THE GOVERNMENT SOUGHT TO ENFORCE LIENS FOR FEDERAL INCOME
TAXES CLAIMED TO BE DUE ON ITEMS OF "INCOME" AGGREGATING $678,461.22,
WHICH THE TAXPAYER HAD EMBEZZLED FROM HIS CORPORATE EMPLOYER DURING THE
YEARS 1945 THROUGH 1949.  THE ITEMS IN QUESTION CONSISTED OF CUSTOMERS'
PAYMENTS INTENDED FOR THE CORPORATION, AND HAD BEEN EMBEZZLED BY THE
TAXPAYER AND KEPT BY HIM IN SECRET BANK ACCOUNTS.  IN 1951 AND 1952, HE
DISCHARGED HIS INDEBTEDNESS BY MAKING FULL RESTITUTION OF THE EMBEZZLED
FUNDS TO THE CORPORATION.  THE CORPORATION, WHICH USED THE ACCRUAL
METHOD OF ACCOUNTING, PAID DEFICIENCIES WHICH THE GOVERNMENT DETERMINED
IN ITS 1945-1949 INCOME TAX RETURNS, BASED ON ITS ACCRUED RIGHT TO
RECEIVE THE EMBEZZLED CUSTOMERS' PAYMENTS IN THOSE YEARS.  NOT
SATISFIED WITH THIS, THE GOVERNMENT TOOK THE POSITION THAT THE PAYMENTS
WERE TAXABLE TWICE DURING THE SAME YEARS - ONCE TO THE CORPORATION WHEN
IT ACCRUED THE RIGHT TO RECEIVE THEM, AND AGAIN TO THE EMBEZZLER WHEN
HE DIVERTED THEM INTO THE SECRET BANK ACCOUNTS.  HAD THIS EFFORT AT
DOUBLE TAXATION SUCCEEDED, THE GOVERNMENT'S COMBINED TAX CLAIMS WOULD
HAVE BEEN FAR IN EXCESS OF THE AMOUNT BEING TAXED. 

IN REJECTING THE GOVERNMENT'S ARGUMENT THAT THE EMBEZZLER RECEIVED
TAXABLE INCOME AT THE TIME OF THE EMBEZZLEMENTS, THE DISTRICT COURT
RELIED WHOLLY UPON THE DECISION WHICH THE COURT TODAY OVERRULES,
COMMISSIONER V. WILCOX, SUPRA.
..END :





SLAGLE V. OHIO 366 U.S. 259 


NO. 105.  ARGUED FEBRUARY 27-28, 1961 - DECIDED MAY 15, 1961 - 170 OHIO
ST. 216, 163 N.E.2D 177, AFFIRMED IN PART, BY AN EQUALLY DIVIDED COURT,
AND REVERSED IN PART. 


APPELLANTS APPEARED PURSUANT TO SUBPOENAS BEFORE THE OHIO UN-AMERICAN
ACTIVITIES COMMISSION, A JOINT STATE LEGISLATIVE COMMITTEE, WHICH WAS
INVESTIGATING SUBVERSIVE ACTIVITIES IN OHIO.  EACH APPELLANT WAS SWORN
AND EXAMINED AND EACH OBJECTED TO MOST OF THE QUESTIONS PROPOUNDED ON
THE GROUND THAT AN ANSWER WOULD COMPEL HIM TO BE A WITNESS AGAINST
HIMSELF IN VIOLATION OF THE OHIO CONSTITUTION AND OF THE FIFTH
AMENDMENT TO THE FEDERAL CONSTITUTION.  IN MOST INSTANCES, THE
COMMISSION APPARENTLY SUSTAINED OR ACQUIESCED IN THEIR OBJECTIONS, AND
APPELLANTS WERE NOT DIRECTED TO ANSWER; BUT IN A FEW INSTANCES SOME OF
THEM WERE DIRECTED TO ANSWER ONE OR MORE QUESTIONS BUT FLATLY REFUSED
TO DO SO, ALTHOUGH THEY HAD BOTH CONSTRUCTIVE AND ACTUAL KNOWLEDGE OF
AN OHIO STATUTE WHICH FORBADE THE USE OF THE TESTIMONY OF A WITNESS
BEFORE A LEGISLATIVE COMMITTEE IN ANY CRIMINAL PROCEEDING AGAINST HIM. 
FOR REFUSING TO ANSWER CERTAIN QUESTIONS, APPELLANTS WERE TRIED FOR
CONTEMPT IN A STATE COURT UNDER AN OHIO STATUTE AND WERE CONVICTED ON
SOME COUNTS.  THEIR CONVICTIONS WERE SUSTAINED BY AN INTERMEDIATE COURT
OF APPEALS; THEIR APPEALS TO THE STATE SUPREME COURT WERE DISMISSED;
AND THEY APPEALED TO THIS COURT.  HELD: 

1.  SINCE APPELLANTS FAILED TO SHOW THAT ANY TIMELY INSISTENCE WAS
MADE IN THE STATE COURTS THAT THE STATE STATUTE, AS APPLIED, IS
REPUGNANT TO THE FEDERAL CONSTITUTION, TREATIES OR LAWS, THE APPEALS
ARE DISMISSED; BUT, SINCE VARIOUS CONSTITUTIONAL CLAIMS WERE MADE BELOW
AND RENEWED IN THIS COURT AND AT LEAST ONE OF THEM RAISES QUESTIONS OF
PUBLIC IMPORTANCE, CERTIORARI IS GRANTED.  P. 264. 

2.  THE JUDGMENTS AGAINST TWO OF THE APPELLANTS ARE REVERSED AND
THOSE AGAINST THE OTHER APPELLANTS ARE REVERSED AS TO CERTAIN COUNTS
AND AFFIRMED BY AN EQUALLY DIVIDED COURT AS TO OTHER COUNTS.  PP. 264
268. 

(A)  ON THE RECORD IN THIS CASE, TO HOLD THAT THESE WITNESSES
WILLFULLY AND CONTUMACIOUSLY REFUSED TO ANSWER THE QUESTIONS TO WHICH
THEY OBJECTED BUT WHICH THEY WERE NOT DIRECTED TO ANSWER WOULD DEPRIVE
THEM OF DUE PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT.  PP. 264
267. 

(B)  THE COURT IS EQUALLY DIVIDED AS TO APPELLANTS' CONTENTIONS THAT
(1) BECAUSE THE OHIO IMMUNITY STATUTE DOES NOT AFFORD IMMUNITY FROM
FEDERAL PROSECUTION, THEY COULD NOT LAWFULLY BE COMPELLED TO ANSWER
QUESTIONS OVER THEIR FIFTH-AMENDMENT OBJECTIONS TO THEM, (2) THE
QUESTIONS WHICH THEY REFUSED TO ANSWER WERE NOT PERTINENT TO THE
INQUIRY, AND (3) THE COMMISSION'S INVESTIGATION WAS WITHOUT LEGISLATIVE
PURPOSE.  PP. 267-268. 

SLAGLE ET AL. V. OHIO. 

APPEALS FROM THE SUPREME COURT OF OHIO. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

PURSUING ITS STATUTORY POWERS AND DUTIES TO INVESTIGATE SUBVERSIVE
ACTIVITIES IN OHIO, (FN1) THE OHIO UN-AMERICAN ACTIVITIES COMMISSION
SCHEDULED A HEARING TO COMMENCE AT THE STARK COUNTY COURTHOUSE ON THE
MORNING OF OCTOBER 21, 1953, AND SUBPOENAED THESE FIVE APPELLANTS TO
APPEAR AND TESTIFY BEFORE IT AT THAT TIME AND PLACE.  EACH APPEARED
WITH COUNSEL, WAS SWORN AND EXAMINED.  THOUGH HAVING BOTH CONSTRUCTIVE
AND ACTUAL KNOWLEDGE OF OHIO'S IMMUNITY STATUTE, (FN2) EACH OBJECTED TO
MOST OF THE QUESTIONS PROPOUNDED (FN3) ON THE GROUND THAT AN ANSWER
WOULD COMPEL HIM TO BE A WITNESS AGAINST HIMSELF, IN VIOLATION OF THE
OHIO CONSTITUTION AND OF THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.  (FN4)  APPELLANTS WERE NOT, IN MOST INSTANCES, DIRECTED
TO ANSWER, BUT IN A FEW INSTANCES SOME OF THEM (PERRY, COOPER AND
MLADAJAN) WERE DIRECTED TO ANSWER THE QUESTION, YET FLATLY REFUSED TO
DO SO.  (FN5) 

ACTING PURSUANT TO OHIO REV. CODE SEC. 103.35, (FN6) THE MEMBERS OF
THE COMMISSION WHO SAT AT THE HEARING AUTHORIZED THE CHAIRMAN TO CAUSE
CONTEMPT PROCEEDINGS TO BE INITIATED AGAINST APPELLANTS UNDER OHIO REV.
CODE SECS. 2705.02 TO 2705.09, (FN7) AND ON DECEMBER 24, 1953, EACH
APPELLANT WAS SEPARATELY INDICTED IN THE COURT OF COMMON PLEAS OF STARK
COUNTY ON 10 COUNTS - EACH COUNT CHARGING WILLFUL FAILURE, IN VIOLATION
OF SEC. 2705.02, TO ANSWER A QUESTION PROPOUNDED BY THE COMMISSION. 
UPON A JOINT TRIAL TO THE COURT, EACH APPELLANT WAS CONVICTED AND
SENTENCED ON SOME OF THE COUNTS.  (FN8)  ON CONSOLIDATED APPEALS, THE
STARK COUNTY COURT OF APPEALS AFFIRMED, (FN9) THE SUPREME COURT OF
OHIO, FINDING NO DEBATABLE CONSTITUTIONAL QUESTION PRESENTED, DISMISSED
APPELLANTS' APPEALS TO THAT COURT, 170 OHIO ST. 216, 163 N.E.2D 177,
AND, ON APPEALS TO THIS COURT, WE POSTPONED FURTHER CONSIDERATION OF
OUR JURISDICTION TO THE HEARING ON THE MERITS.  364 U.S. 811. 

APPELLANTS SIMPLY ASSERT THAT WE HAVE JURISDICTION OVER THESE APPEALS
UNDER 28 U.S.C. SEC. 1257(2).  DESPITE THE PLAIN IMPORT OF OUR
POSTPONING ORDER, SEE RULE 16, PAR. 4, OF THIS COURT, THEY HAVE
ENTIRELY FAILED TO SHOW THAT ANY "TIMELY INSISTENCE WAS MADE IN THE
STATE COURTS THAT A STATE STATUTE, AS APPLIED, IS REPUGNANT TO THE
FEDERAL CONSTITUTION, TREATIES OR LAWS."  CHARLESTON FEDERAL SAVINGS &
LOAN ASSN. V. ALDERSON, 324 U.S. 182, 185.  ACCORDINGLY, THE APPEALS
ARE DISMISSED.  SEE RALEY V. OHIO, 360 U.S. 423, 435.  BUT SINCE
VARIOUS FEDERAL CONSTITUTIONAL CLAIMS WERE MADE BELOW AND ARE RENEWED
HERE, 28 U.S.C. SEC. 1257(3), WE CONSIDER THE APPEAL PAPERS AS
PETITIONS FOR CERTIORARI AND, IN VIEW OF THE PUBLIC IMPORTANCE OF AT
LEAST ONE OF THE QUESTIONS PRESENTED, GRANT CERTIORARI, 28 U.S.C. SEC.
2103. 

APPELLANTS' PRINCIPAL CONTENTION HERE IS THAT THE JUDGMENTS, FINDING
THEM GUILTY OF WILLFUL REFUSAL TO ANSWER THE COMMISSION'S QUESTIONS
ALTHOUGH THE COMMISSION DID NOT OVERRULE THEIR TIMELY OBJECTIONS TO THE
QUESTIONS NOR DIRECT THAT THEY BE ANSWERED, BUT APPEARED TO SUSTAIN, OR
AT LEAST TO ACQUIESCE IN, THOSE OBJECTIONS, DEPRIVE APPELLANTS OF DUE
PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT.  IN THE PECULIAR
FACTUAL SITUATION PRESENTED, AND LIMITED TO THE QUESTIONS WHICH THEY
WERE NOT DIRECTED TO ANSWER, WE HAVE CONCLUDED THAT APPELLANTS ARE
RIGHT IN THIS CONTENTION. 

SURELY TRADITIONAL NOTIONS OF FAIR PLAY CONTEMPLATE THAT A PERSON
SUMMONED TO TESTIFY BEFORE A ADJUDICATORY OR INVESTIGATORY BODY,
INCLUDING A LEGISLATIVE INVESTIGATORY COMMITTEE, MAY OBJECT TO ANY
QUESTION PUT TO HIM UPON ANY AVAILABLE GROUND, HOWEVER TENUOUS.  AND
THE OHIO COMMISSION, SEVERAL TIMES AND IN MANY WAYS, CLEARLY GAVE
APPELLANTS TO UNDERSTAND THAT SUCH WAS THEIR RIGHT AT THIS HEARING. 
EXERCISING THAT RIGHT, IF NOT ACTUALLY ACCEPTING THE COMMISSION'S
INVITATION, APPELLANTS, EXCEPT FOR A FEW PRELIMINARY QUESTIONS,
OBJECTED TO MOST OF THE QUESTIONS PUT TO THEM, PRINCIPALLY ON THE
GROUND OF THE FIFTH AMENDMENT (BUT SEE NOTE 4).  WITH IMPORTANT
EXCEPTIONS TO BE NOTED, INSTEAD OF OVERRULING THE OBJECTION OR IN ANY
WAY DIRECTING THE WITNESS TO ANSWER THE QUESTION, THE COMMISSION GAVE
EVERY INDICATION THAT IT SUSTAINED, OR AT LEAST ACQUIESCED IN, THE
OBJECTION BY IMMEDIATELY PASSING ON TO THE NEXT QUESTION.  THAT PROCESS
WAS SCORES OF TIMES REPEATED. 

BUT, AND LENDING EMPHASIS TO ITS NORMAL ACQUIESCENCE IN THE
OBJECTIONS, THE COMMISSION, AT TIMES, ADOPTED ANOTHER AND VERY
DIFFERENT PROCEDURE.  WHEN THE COMMISSION'S COUNSEL ADVISED THE
COMMISSION THAT HE CONSIDERED A PARTICULAR QUESTION TO BE COMPETENT AND
IMPORTANT AND ASKED THAT THE WITNESS BE DIRECTED TO ANSWER IT, THE
CHAIRMAN, IN EACH SUCH INSTANCE, DIRECTED THE WITNESS TO ANSWER THE
QUESTION.  AND IN EVERY SUCH INSTANCE CARE WAS TAKEN, EITHER BY THE
COMMISSION'S COUNSEL OR ITS CHAIRMAN, TO HAVE THE RECORD SHOW THAT AT
LEAST A QUORUM OF THE COMMISSION WERE THEN PRESENT AND SITTING.  IN
THAT MANNER, AS MORE FULLY SHOWN IN NOTE 5, SLAGLE WAS DIRECTED TO
ANSWER ONE QUESTION, AND THEREUPON PROMPTLY ANSWERED IT, BUT HE WAS NOT
DIRECTED TO ANSWER ANY OTHER QUESTION; BOHUS WAS NOT DIRECTED TO ANSWER
ANY QUESTION; PERRY WAS THUS DIRECTED TO ANSWER THE TWO QUESTIONS THAT
WERE MADE THE SUBJECTS OF COUNTS 1 AND 2 OF HER INDICTMENT (SHE WAS
ACQUITTED ON COUNT 2), BUT WAS NOT DIRECTED TO ANSWER THE QUESTIONS
UPON WHICH THE OTHER EIGHT COUNTS OF HER INDICTMENT WERE BASED; COOPER
WAS THUS DIRECTED TO ANSWER THE FOUR QUESTIONS THAT WERE MADE THE
SUBJECTS OF COUNTS 1, 2, 5 AND 6 OF HER INDICTMENT, BUT WAS NOT
DIRECTED TO ANSWER THE QUESTIONS UPON WHICH THE OTHER SIX COUNTS OF HER
INDICTMENT WERE BASED; AND MLADAJAN WAS THUS DIRECTED TO ANSWER THE
QUESTION THAT WAS MADE THE SUBJECT OF COUNT 6 OF HER INDICTMENT, BUT
WAS NOT DIRECTED TO ANSWER THE QUESTIONS UPON WHICH THE OTHER NINE
COUNTS OF HER INDICTMENT WERE BASED. 

NO PARTICULAR FORM OF WORDS IS NECESSARY EITHER TO SUSTAIN OR
OVERRULE AN OBJECTION AND THUS EITHER TO EXCUSE OR REQUIRE AN ANSWER TO
THE QUESTION.  ALL THAT IS NECESSARY IS THAT THE HEARING TRIBUNAL MAKE
PLAIN ITS DISPOSITION OF THE OBJECTION AND WHETHER OR NOT AN ANSWER TO
THE QUESTION IS EXPECTED AND REQUIRED.  IF, AS FREQUENTLY HAPPENS,
AFTER AN OBJECTION HAS BEEN MADE, THE HEARING OFFICER, ADDRESSING THE
EXAMINER, MERELY SAYS, "PASS ON TO YOUR NEXT QUESTION," IT WOULD INDEED
BE PLAIN THAT HE HAD, AT LEAST TEMPORARILY, SUSTAINED OR ACQUIESCED IN
THE OBJECTION AND WAS NOT REQUIRING AN ANSWER TO BE GIVEN.  THAT IS
ALMOST PRECISELY WHAT HAPPENED HERE.  THOUGH, UPON THESE OBJECTIONS
BEING MADE, THE COMMISSION DID NOT FORMALLY DIRECT ITS COUNSEL TO PASS
ON TO HIS NEXT QUESTION, EITHER THE COUNSEL OR SOME MEMBER OF THE
COMMISSION DID IN FACT IMMEDIATELY PASS ON TO THE NEXT QUESTION.  THOSE
OBJECTIONS MUST THEREFORE BE REGARDED AS SUSTAINED OR ACQUIESCED IN BY
THE COMMISSION.  TO HOLD THAT THESE WITNESSES, IN THESE CIRCUMSTANCES,
WILLFULLY AND CONTUMACIOUSLY REFUSED TO ANSWER THOSE QUESTIONS WOULD
DEEPLY OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND DEPRIVE THEM OF DUE
PROCESS. 

THAT "A CLEAR DISPOSITION OF THE WITNESS' OBJECTION IS A PREREQUISITE
TO PROSECUTION FOR CONTEMPT IS SUPPORTED BY LONG-STANDING TRADITION
HERE AND IN OTHER ENGLISH-SPEAKING NATIONS.  IN THIS COUNTRY THE
TRADITION HAS BEEN UNIFORMLY RECOGNIZED IN THE PROCEDURE OF BOTH STATE
AND FEDERAL COURTS."  QUINN V. UNITED STATES, 349 U.S. 155, 167-168,
AND CASES CITED.  SEE ALSO EMSPAK V. UNITED STATES, 349 U.S. 190, 202;
BART V. UNITED STATES, 349 U.S. 219, 223.  "BECAUSE OF THE COMMISSION'S
CONSISTENT FAILURE TO ADVISE APPELLANTS OF ITS POSITION AS TO THEIR
OBJECTIONS, APPELLANTS WERE LEFT TO SPECULATE ABOUT THE RISK OF
POSSIBLE PROSECUTION FOR CONTEMPT; THEY WERE NOT GIVEN A CLEAR CHOICE
BETWEEN STANDING ON THEIR OBJECTIONS AND COMPLIANCE WITH A COMMITTEE
RULING."  BART V. UNITED STATES, SUPRA, AT 223. 

IN THESE CIRCUMSTANCES, TO HOLD THAT THESE WITNESSES WILLFULLY AND
CONTUMACIOUSLY REFUSED TO ANSWER THE QUESTIONS TO WHICH THEY OBJECTED
BUT WHICH THEY WERE NOT DIRECTED TO ANSWER WOULD DEPRIVE THEM OF DUE
PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT. 

AS TO APPELLANTS' REMAINING CONTENTIONS, INCLUDING, (1) THAT BECAUSE
THE OHIO IMMUNITY STATUTE (SEE NOTE 2) DOES NOT AFFORD IMMUNITY FROM
FEDERAL PROSECUTION, THEY COULD NOT LAWFULLY BE COMPELLED TO ANSWER
QUESTIONS OVER THEIR FIFTH AMENDMENT OBJECTIONS TO THEM, (2) THAT THE
QUESTIONS WHICH THEY REFUSED TO ANSWER WERE NOT PERTINENT TO THE
INQUIRY, AND (3) THAT THE COMMISSION'S INVESTIGATION WAS WITHOUT
LEGISLATIVE PURPOSE, THE COURT IS EQUALLY DIVIDED. 

IT FOLLOWS THAT THE JUDGMENTS AGAINST SLAGLE AND BOHUS MUST BE
REVERSED; THAT THE JUDGMENT AGAINST PERRY MUST BE REVERSED AS TO COUNTS
3, 4, 5, 7, 8 AND 9, AND AFFIRMED, BY AN EQUALLY DIVIDED COURT, AS TO
COUNT 1; THAT THE JUDGMENT AGAINST COOPER MUST BE REVERSED AS TO COUNTS
3, 4, 7, 8 AND 9, AND AFFIRMED, BY AN EQUALLY DIVIDED COURT, AS TO
COUNTS 1, 2, 5 AND 6; AND THAT THE JUDGMENT AGAINST MLADAJAN MUST BE
REVERSED AS TO COUNTS 1, 2, 3, 4, 5, 7, 8 AND 10, AND AFFIRMED, BY AN
EQUALLY DIVIDED COURT, AS TO COUNT 6. 

APPEALS DISMISSED AND CERTIORARI GRANTED. 

ON WRITS OF CERTIORARI, JUDGMENTS REVERSED AS TO SLAGLE AND BOHUS;
JUDGMENTS REVERSED IN PART AND AFFIRMED, BY AN EQUALLY DIVIDED COURT,
IN PART AS TO PERRY, COOPER AND MLADAJAN. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

FN1  OHIO REV. CODE SEC. 103.34 PROVIDES: 

"POWERS AND DUTIES. 

"THE UN-AMERICAN ACTIVITIES COMMISSION SHALL: 

"(A)  INVESTIGATE, STUDY, AND ANALYSE: 

"(1)  ALL FACTS RELATING TO THE ACTIVITIES OF PERSONS, GROUPS, AND
ORGANIZATIONS WHOSE MEMBERSHIP INCLUDES PERSONS WHO HAVE AS THEIR
OBJECTIVE OR MAY BE SUSPECTED OF HAVING AS THEIR OBJECTIVE THE
OVERTHROW OR REFORM OF OUR CONSTITUTIONAL GOVERNMENTS BY FRAUD, FORCE,
VIOLENCE, OR OTHER UNLAWFUL MEANS: 

"(2)  ALL FACTS CONCERNING PERSONS, GROUPS, AND ORGANIZATIONS, KNOWN
TO BE OR SUSPECTED OF BEING DOMINATED BY OR GIVING ALLEGIANCE TO A
FOREIGN POWER OR WHOSE ACTIVITIES MIGHT ADVERSELY AFFECT THE
CONTRIBUTION OF THIS STATE TO THE NATIONAL DEFENSE, THE SAFETY AND
SECURITY OF THIS STATE, THE FUNCTIONING OF ANY AGENCY OF THE STATE OR
NATIONAL GOVERNMENT, OR THE INDUSTRIAL POTENTIAL OF THIS STATE: 

"(3)  THE OPERATION AND EFFECT OF THE LAWS OF THIS STATE, OF THE
SEVERAL OTHER STATES, AND OF THE UNITED STATES, WHICH PURPORT TO OUTLAW
AND CONTROL THE ACTIVITIES ENUMERATED IN THIS SECTION AND TO RECOMMEND
SUCH ADDITIONAL LEGISLATION OR REVISION OF EXISTING LAWS AS MAY SEEM
ADVISABLE AND NECESSARY: 

"(B)  MAINTAIN A LIAISON WITH ANY AGENCY OF THE FEDERAL, STATE, OR
LOCAL GOVERNMENTS IN DEVISING AND PROMOTING MEANS OF DISCLOSING THOSE
PERSONS AND GROUPS WHO SEEK TO ALTER OR DESTROY THE GOVERNMENT OF THIS
STATE OR OF THE UNITED STATES BY FORCE, VIOLENCE, INTIMIDATION,
SABOTAGE, OR THREATS OF THE SAME. 

"THE COMMISSION HAS SUCH ADDITIONAL RIGHT, DUTIES, AND POWERS AS ARE
NECESSARY TO ENABLE IT FULLY TO EXERCISE THOSE SPECIFICALLY SET FORTH
IN THIS SECTION AND TO ACCOMPLISH ITS LAWFUL OBJECTIVES AND PURPOSES." 

FN2  OHIO REV. CODE SEC. 101.44 PROVIDES: 

"EXCEPT A PERSON WHO, IN WRITING, REQUESTS PERMISSION TO APPEAR
BEFORE A COMMITTEE OR SUBCOMMITTEE OF THE GENERAL ASSEMBLY, OR OF
EITHER HOUSE THEREOF, OR WHO, IN WRITING, WAIVES THE RIGHTS,
PRIVILEGES, AND IMMUNITIES GRANTED BY THIS SECTION, THE TESTIMONY OF A
WITNESS EXAMINED BEFORE A COMMITTEE OR SUBCOMMITTEE SHALL NOT BE USED
AS EVIDENCE IN A CRIMINAL PROCEEDING AGAINST SUCH WITNESS, NOR SHALL A
PERSON BE PROSECUTED OR SUBJECTED TO A PENALTY OR FORFEITURE ON ACCOUNT
OF A TRANSACTION, MATTER, OR THING, CONCERNING WHICH HE TESTIFIES, OR
PRODUCES EVIDENCE.  THIS SECTION DOES NOT EXEMPT A WITNESS FROM THE
PENALTIES FOR PERJURY." 

FN3  EXCEPT FOR A FEW PRELIMINARY QUESTIONS, EACH APPELLANT OBJECTED
TO AND DECLINED TO ANSWER MOST OF THE QUESTIONS PROPOUNDED - SLAGE, 97
OF THE NEXT 129 QUESTIONS; BOHUS, 97 OF THE NEXT 99 QUESTIONS; PERRY,
110 OF THE NEXT 118 QUESTIONS; COOPER, 76 OF THE NEXT 103 QUESTIONS;
AND MLADAJAN, 88 OF THE NEXT 123 QUESTIONS. 

FN4  IN ADDITION TO VARIOUS STATE GROUNDS, EACH APPELLANT BASED HIS
OBJECTIONS TO THE QUESTIONS ON THE FIFTH AMENDMENT, BUT SLAGLE ALSO
INVOKED THE FIRST AND FOURTEENTH AMENDMENTS, PERRY ALSO INVOKED THE
FIRST, FOURTH, NINTH AND FOURTEENTH AMENDMENTS, AND APPELLANT COOPER
ALSO INVOKED THE FOURTH AND NINTH AMENDMENTS, TO THE UNITED STATES
CONSTITUTION. 

FN5  APPELLANT SLAGLE, TOO, WAS DIRECTED BY THE CHAIRMAN TO ANSWER
ONE QUESTION, BUT HE THEREUPON ANSWERED IT.  HE WAS NOT DIRECTED TO
ANSWER ANY OTHER QUESTION. 

APPELLANT BOHUS WAS NOT DIRECTED TO ANSWER ANY OF THE QUESTIONS. 

APPELLANT PERRY WAS DIRECTED BY THE CHAIRMAN TO ANSWER THE QUESTION,
"WHAT IS YOUR HUSBAND'S NAME?"  BUT REFUSED TO ANSWER AND THAT REFUSAL
WAS MADE THE SUBJECT OF COUNT 1 OF THE INDICTMENT AGAINST HER.  SHE WAS
ALSO DIRECTED TO ANSWER THE QUESTION, "WHAT ARE YOUR PARENTS' NAMES?" 
BUT REFUSED TO ANSWER AND THAT REFUSAL WAS MADE THE SUBJECT OF COUNT 2
OF THE INDICTMENT.  HOWEVER, THE TRIAL COURT ACQUITTED HER ON THAT
COUNT ON THE GROUND THAT THE QUESTION WAS IMMATERIAL.  SHE WAS NOT
DIRECTED TO ANSWER ANY OTHER QUESTION.    APPELLANT COOPER WAS DIRECTED
TO ANSWER THE FOLLOWING QUESTIONS: 

"WHERE DID YOU RESIDE PRIOR TO SEPTEMBER, 1948?"  (COUNT 1.) 

"WHAT WAS YOUR NAME AT THE TIME YOU WERE BORN; WHAT WAS THE NAME
GIVEN YOU ON BAPTISM?"  (COUNT 2.) 

"DID YOU EVER LIVE IN THE CITY OF ST. LOUIS, MISSOURI?"  (COUNT 5.) 
"WHAT IS YOUR HUSBAND'S NAME, MRS. COOPER?"  (COUNT 6.) 

BUT SHE NEVERTHELESS REFUSED TO ANSWER IN EACH INSTANCE AND THOSE
REFUSALS WERE MADE THE SUBJECTS OF COUNTS 1, 2, 5 AND 6, RESPECTIVELY,
OF THE INDICTMENT AGAINST HER.  ALTHOUGH SHE REFUSED, WHEN DIRECTED, TO
ANSWER ANOTHER QUESTION, SHE WAS NOT INDICTED FOR THAT REFUSAL.  SHE
WAS NOT DIRECTED TO ANSWER THE QUESTIONS ON WHICH COUNTS 3, 4, 7, 8, 9
AND 10 OF THE INDICTMENT WERE BASED. 

APPELLANT MLADAJAN WAS DIRECTED TO ANSWER THE QUESTION, "MRS. 
MLADAJAN, HAVE YOU EVER BEEN IN MEETINGS AT THE CROATIAN HALL AT ANY
TIME EXCEPT IN YOUR CAPACITY AS AN EMPLOYEE?"  BUT SHE REFUSED TO
ANSWER AND THAT REFUSAL WAS MADE THE SUBJECT OF COUNT 6 OF THE
INDICTMENT AGAINST HER.  SHE WAS NOT DIRECTED TO ANSWER ANY OTHER
QUESTION. 

FN6  OHIO REV. CODE SEC. 103.35 PROVIDES, IN RELEVANT PART, THAT "IN
CASE OF  ...  THE REFUSAL OF ANY PERSON  ...  TO TESTIFY TO ANY MATTERS
REGARDING WHICH HE MAY BE LAWFULLY INTERROGATED  ...  THE CHAIRMAN MAY
BE AUTHORIZED BY A MAJORITY OF THE MEMBERS SITTING AT THE TIME THE
ALLEGED OFFENSE IS COMMITTED, TO CAUSE A PROCEEDING FOR CONTEMPT TO BE
FILED AND PROSECUTED IN THE COURT OF COMMON PLEAS OF ANY COUNTY UNDER

FN7  OHIO REV. CODE SEC. 2705.02 PROVIDES, IN PERTINENT PART: 

"A PERSON GUILTY OF ANY OF THE FOLLOWING ACTS MAY BE PUNISHED AS FOR
A CONTEMPT: 

     *         *         *         *         * 

"(C)  A FAILURE  ...  TO ANSWER AS A WITNESS, WHEN LAWFULLY
REQUIRED." 

OHIO REV. CODE SEC. 2705.05 PROVIDES: 

"UPON THE DAY FIXED FOR THE TRIAL IN A CONTEMPT PROCEEDING THE COURT
SHALL INVESTIGATE THE CHARGE, AND HEAR ANY ANSWER OR TESTIMONY WHICH
THE ACCUSED MAKES OR OFFERS. 

"THE COURT SHALL THEN DETERMINE WHETHER THE ACCUSED IS GUILTY OF THE
CONTEMPT CHARGE.  IF IT IS FOUND THAT HE IS GUILTY, HE MAY BE FINED NOT
MORE THAN FIVE HUNDRED DOLLARS OR IMPRISONED NOT MORE THAN TEN DAYS, OR
BOTH." 

FN8  APPELLANT SLAGLE WAS CONVICTED ON COUNTS 3 TO 10, INCLUSIVE;
BOHUS WAS CONVICTED ON COUNTS 1, 2, 3, 4, 5, 7, 8 AND 9; PERRY WAS
CONVICTED ON COUNTS 1, 3, 4, 5, 7, 8 AND 9; COOPER WAS CONVICTED ON
COUNTS 1 TO 9, INCLUSIVE; MLADAJAN WAS CONVICTED ON COUNTS 1 TO 8,
INCLUSIVE, AND 10.  EACH WAS SENTENCED TO IMPRISONMENT FOR 10 DAYS ON
EACH COUNT - THE SENTENCES ON ALL COUNTS, IN EACH INSTANCE, TO RUN
CONCURRENTLY - AND WAS FINED $500 ON EACH COUNT, BUT THE FINES, OTHER
THAN THE FIRST ONE, WERE REMITTED IN EACH INSTANCE. 

FN9  THE OPINION OF THE STARK COUNTY COURT OF APPEALS IS NOT
REPORTED. 
..END :




LUDWIG V. AMERICAN GREETINGS 366 U.S. 269 


NO. 811.  DECIDED MAY 15, 1961 - APPEAL DISMISSED.  - REPORTED BELOW:
282 F.2D 917; - F.2D - .


LUDWIG V. AMERICAN GREETINGS CORP. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :

















ALATEX CONSTRUCTION SERVICE, INC. V. CRAWFORD 366 U.S. 269 


NO. 825.  DECIDED MAY 15, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 120 SO. 2D 845, 854, 855. 


ALATEX CONSTRUCTION SERVICE, INC., ET AL. V. CRAWFORD. 

APPEAL FROM THE COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HARMON V. HARMON 366 U.S. 270 


NO. 842.  DECIDED MAY 15, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 184 CAL. APP. 2D 245, 7 CAL. RPTR.  279. 


HARMON V. HARMON. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SCHAENGOLD V. CITY OF CINCINNATI 366 U.S. 270 


NO. 846.  DECIDED MAY 15, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


SCHAENGOLD V. CITY OF CINCINNATI. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BOND V. GREEN 366 U.S. 271 


NO. 1, MISC.  DECIDED MAY 15, 1961 - REPORTED BELOW:  SEE 174 F. SUPP.
368. 


MOTION FOR LEAVE TO FILE PETITION FOR HABEAS CORPUS DENIED; CERTIORARI
GRANTED; JUDGMENT VACATED AND CASE REMANDED. 

BOND V. GREEN, CORRECTIONAL SUPERINTENDENT. 

MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS IS
DENIED.  TREATING THE PAPERS SUBMITTED AS A PETITION FOR WRIT OF
CERTIORARI TO THE SUPREME COURT OF OHIO, CERTIORARI IS GRANTED.  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR FURTHER CONSIDERATION
IN THE LIGHT OF SMITH V. BENNETT, AND MARSHALL V. BENNETT, 365 U.S.
708. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 
..END :






BINKS MANUFACTURING CO. V. RANSBURG ELECTRO-COATING CORP. 366 U.S. 211 


NO. 501.  ARGUED MAY 3-4, 1961 - DECIDED MAY 8, 1961 - CERTIORARI
DISMISSED AS NOT WARRANTED ON RECORD.  - REPORTED BELOW:  281 F.2D
252. 


BINKS MANUFACTURING CO. V. RANSBURG ELECTRO-COATING CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

AFTER HEARING ORAL ARGUMENT AND FULLY EXAMINING THE RECORD, WE
CONCLUDE THAT THE TOTALITY OF CIRCUMSTANCES AS THE RECORD MAKES THEM
MANIFEST DID NOT WARRANT BRINGING THE CASE HERE.  ACCORDINGLY, THE WRIT
IS DISMISSED. 
..END :













CITY OF NEW ORLEANS V. BUSH 366 U.S. 212 


NO. 812.  DECIDED MAY 8, 1961 - 190 F. SUPP. 861, AFFIRMED. 


CITY OF NEW ORLEANS V. BUSH ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















BOLOGNA V. MORRISSEY 366 U.S. 212 


NO. 829.  DECIDED MAY 8, 1961 - APPEAL DISMISSED AND CERTIORARI DENIED. 
- REPORTED BELOW: - MISS.  - , 123 SO. 2D 537. 


BOLOGNA V. MORRISSEY. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES V. UNITED STATES 366 U.S.
169 


NO. 681.  ARGUED MARCH 28, 1961 - DECIDED MAY 1, 1961 - 189 F. SUPP.
942, AFFIRMED. 


AS A CONDITION OF ITS APPROVAL OF ANY MERGER OF TWO OR MORE RAILROADS,
SEC. 5(2)(F) OF THE INTERSTATE COMMERCE ACT PROVIDES THAT THE
INTERSTATE COMMERCE COMMISSION "SHALL REQUIRE A FAIR AND EQUITABLE
ARRANGEMENT TO PROTECT THE INTERESTS OF THE RAILROAD EMPLOYEES
AFFECTED," INCLUDING A REQUIREMENT THAT, FOR AT LEAST THE LENGTH OF HIS
PRIOR SERVICE UP TO FOUR YEARS, SUCH MERGER SHALL NOT RESULT IN ANY
EMPLOYEE "BEING IN A WORSE POSITION WITH RESPECT TO" HIS EMPLOYMENT. 
HELD:  THIS DOES NOT REQUIRE THAT ALL EMPLOYEES REMAIN IN THE EMPLOY OF
THE SURVIVING RAILROAD FOR AT LEAST THE LENGTH OF THEIR PREVIOUS
EMPLOYMENT UP TO FOUR YEARS; IT IS SATISFIED BY A REQUIREMENT THAT
DISCHARGED EMPLOYEES RECEIVE ADEQUATE COMPENSATION BENEFITS.  PP. 169
179. 

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES ET AL. V. UNITED STATES ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE DISPUTE IN THIS CASE COMMENCED WHEN THE DELAWARE, LACKAWANNA &
WESTERN RAILROAD CO. AND THE ERIE RAILROAD CO. FILED A JOINT
APPLICATION FOR APPROVAL BY THE INTERSTATE COMMERCE COMMISSION OF A
PROPOSED MERGER, THE SURVIVING COMPANY TO BE KNOWN AS THE ERIE
LACKAWANNA RAILROAD CO. SUPERVISION BY THE COMMISSION OF RAILROAD
MERGERS IS REQUIRED BY SEC. 5(2) OF THE INTERSTATE COMMERCE ACT, 54
STAT. 905, 49 U.S.C. SEC. 5(2), AND THE STATUTE DIRECTS THE COMMISSION
TO AUTHORIZE SUCH TRANSACTIONS AS IT FINDS WILL BE "CONSISTENT WITH THE
PUBLIC INTEREST."  THE COMMISSION CONCLUDED IN THIS CASE THAT THE
PUBLIC INTEREST WOULD BE SERVED BY A MERGER OF THE TWO APPLICANTS AND
THAT FINDING HAS NOT BEEN QUESTIONED.  THE POINT IN ISSUE IS WHETHER
THE CONDITIONS ATTACHED TO THE MERGER FOR THE PROTECTION OF THE
EMPLOYEES OF THE TWO ROADS SATISFY THE CONGRESSIONAL MANDATE EMBODIED
IN SEC. 5(2)(F) OF THE ACT, WHICH PROVIDES IN RELEVANT PART THAT: 

"AS A CONDITION OF ITS APPROVAL, UNDER THIS PARAGRAPH (2), OF ANY
TRANSACTION INVOLVING A CARRIER OR CARRIERS BY RAILROAD SUBJECT TO THE
PROVISIONS OF THIS PART, THE COMMISSION SHALL REQUIRE A FAIR AND
EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS OF THE RAILROAD
EMPLOYEES AFFECTED.  IN ITS ORDER OF APPROVAL THE COMMISSION SHALL
INCLUDE TERMS AND CONDITIONS PROVIDING THAT DURING THE PERIOD OF FOUR
YEARS FROM THE EFFECTIVE DATE OF SUCH ORDER SUCH TRANSACTION WILL NOT
RESULT IN EMPLOYEES OF THE CARRIER OR CARRIERS BY RAILROAD AFFECTED BY
SUCH ORDER BEING IN A WORSE POSITION WITH RESPECT TO THEIR EMPLOYMENT,
EXCEPT THAT THE PROTECTION AFFORDED TO ANY EMPLOYEE PURSUANT TO THIS
SENTENCE SHALL NOT BE REQUIRED TO CONTINUE FOR A LONGER PERIOD,
FOLLOWING THE EFFECTIVE DATE OF SUCH ORDER, THAN THE PERIOD DURING
WHICH SUCH EMPLOYEE WAS IN THE EMPLOY OF SUCH CARRIER OR CARRIERS PRIOR
TO THE EFFECTIVE DATE OF SUCH ORDER." 

BEFORE THE COMMISSION'S HEARING EXAMINER, THE RAILROADS SUGGESTED
THAT THE "NEW ORLEANS CONDITIONS" BE IMPOSED IN SATISFACTION OF SEC.
5(2)(F).  THESE CONDITIONS DERIVE THEIR NAME AND SUBSTANCE FROM THE
COMMISSION'S DECISION IN THE NEW ORLEANS UNION PASSENGER TERMINAL CASE,
282 I.C.C. 271, AND THEY PROVIDE COMPENSATION BENEFITS FOR EMPLOYEES
DISPLACED OR DISCHARGED AS A RESULT OF A MERGER.  (FN1)  AFTER THE
HEARING HAD CONCLUDED, HOWEVER, APPELLANT RAILWAY LABOR EXECUTIVES'
ASSOCIATION (RLEA) FILED A BRIEF WITH THE EXAMINER CLAIMING THAT
COMPENSATORY CONDITIONS WERE NOT ENOUGH SINCE, IN ITS VIEW, THE SECOND
SENTENCE OF SEC. 5(2)(F) IMPOSES A MINIMUM REQUIREMENT THAT NO EMPLOYEE
BE DISCHARGED FOR AT LEAST THE LENGTH OF HIS PRIOR SERVICE UP TO FOUR
YEARS FOLLOWING CONSUMMATION OF THE MERGER.  THE HEARING EXAMINER DID
NOT AGREE WITH THE RLEA'S READING OF SEC. 5(2)(F) AND RECOMMENDED THE
NEW ORLEANS CONDITIONS TO THE COMMISSION, A RECOMMENDATION WHICH THE
COMMISSION UNANIMOUSLY ADOPTED.  312 I.C.C. 185.  APPELLANTS THEN
INSTITUTED PROCEEDINGS IN THE UNITED STATES DISTRICT COURT OF MICHIGAN,
SEEKING TO ENJOIN THE COMMISSION'S ORDER APPROVING THE MERGER.  A
TEMPORARY RESTRAINING ORDER ISSUED FOLLOWING TESTIMONY BY A
REPRESENTATIVE OF THE RLEA THAT IRREPARABLE INJURY TO THE EMPLOYEES
WOULD OTHERWISE ENSUE.  HOWEVER, AFTER HEARING THE CASE ON ITS MERITS,
THE DISTRICT COURT DISSOLVED THE RESTRAINING ORDER AND DISMISSED
APPELLANTS' COMPLAINT.  189 F. SUPP. 942.  DIRECT APPEAL TO THIS COURT
FOLLOWED AND WE NOTED PROBABLE JURISDICTION.  365 U.S. 809. 

PRELIMINARILY, IT MUST BE NOTED THAT THE ADEQUACY OF THE NEW ORLEANS
CONDITIONS IS NOT AN ISSUE BEFORE THIS COURT:  APPELLANTS DID NOT
CHALLENGE THEIR SUFFICIENCY BELOW, NOR DO THEY ARGUE THE POINT HERE. 
(FN2)  RATHER, APPELLANTS' SOLE CONTENTION IS THAT NO COMPENSATION PLAN
IS ADEQUATE UNLESS IT IS BASED ON THE PREMISE THAT ALL THE EMPLOYEES
CURRENTLY ON THE PAYROLL REMAIN IN THE SURVIVING RAILROAD'S EMPLOY FOR
AT LEAST THE LENGTH OF THEIR PREVIOUS EMPLOYMENT UP TO FOUR YEARS. 
APPELLANTS DO NOT SAY THAT EVERY EMPLOYEE MUST REMAIN IN HIS PRESENT
JOB, BUT THEY DO INSIST THAT SOME JOB MUST REMAIN OPEN FOR EACH ONE. 
WE THINK, HOWEVER, THAT A REVIEW OF THE BACKGROUND OF SEC. 5(2)(F) AND
ITS SUBSEQUENT INTERPRETATION DEMONSTRATES THE DEFECTS IN APPELLANTS'
POSITION. 

TRANSPORTATION ACT OF 1940.  A BROAD SYNOPSIS OF THE OCCURRENCES WHICH
LED TO THE ENACTMENT OF THOSE SECTIONS ON RAILROAD CONSOLIDATION OF
WHICH SEC. 5(2)(F) IS A PART IS CONTAINED IN THE APPENDIX TO THIS
COURT'S OPINION IN ST. JOE PAPER CO. V. ATLANTIC COAST LINE R. CO., 347
U.S. 298, 315, AND IT IS UNNECESSARY TO REPRODUCE THAT MATERIAL HERE
EXCEPT TO NOTE THAT:  "THE CONGRESSIONAL PURPOSE IN THE SWEEPING
REVISION OF SEC. 5 OF THE INTERSTATE COMMERCE ACT IN 1940, ENACTING
SEC.  5(2)(A) IN ITS PRESENT FORM, WAS TO FACILITATE MERGER AND
CONSOLIDATION IN THE NATIONAL TRANSPORTATION SYSTEM."  COUNTY OF MARIN
V. UNITED STATES, 356 U.S. 412, 416.  THE RELEVANT EVENTS, FOR PRESENT
PURPOSES, DATE FROM 1933, WHEN CONGRESS PASSED THE EMERGENCY RAILROAD
TRANSPORTATION ACT, 48 STAT. 211.  THAT ACT CONTEMPLATED EXTENSIVE
RAILROAD CONSOLIDATIONS AND PROVIDED FOR EMPLOYEE PROTECTION PURSUANT
THERETO IN THE FOLLOWING LANGUAGE: 

"NOR SHALL ANY EMPLOYEE IN SUCH SERVICE BE DEPRIVED OF EMPLOYMENT
SUCH AS HE HAD DURING SAID MONTH OF MAY OR BE IN A WORSE POSITION WITH
RESPECT TO HIS COMPENSATION FOR SUCH EMPLOYMENT, BY REASON OF ANY
ACTION TAKEN PURSUANT TO THE AUTHORITY CONFERRED BY THIS TITLE." 

SHORTLY BEFORE THE EMERGENCY ACT EXPIRED IN 1936, A GREAT MAJORITY OF
THE NATION'S RAILROADS AND BROTHERHOODS ENTERED INTO THE WASHINGTON JOB
PROTECTION AGREEMENT, (FN3) AN INDUSTRY-WIDE COLLECTIVE BARGAINING
AGREEMENT WHICH ALSO SPECIFIED CONDITIONS FOR THE PROTECTION OF
EMPLOYEES IN THE EVENT OF MERGERS.  UNLIKE THE EMERGENCY ACT, HOWEVER,
THE WASHINGTON AGREEMENT PROVIDED FOR COMPENSATORY PROTECTION RATHER
THAN THE "JOB FREEZE" PREVIOUSLY PRESCRIBED.  SUBSEQUENTLY, EFFORTS
COMMENCED TO RE-EVALUATE THE LAW RELATING TO RAILROAD CONSOLIDATIONS
AND A "COMMITTEE OF SIX" WAS APPOINTED BY THE PRESIDENT TO STUDY THE
MATTER.  THOSE PORTIONS OF THE COMMITTEE'S FINAL REPORT PERTAINING TO
EMPLOYEE PROTECTION URGED CODIFICATION OF THE WASHINGTON AGREEMENT
(FN4) AND A BILL DRAFTED ALONG THOSE LINES, S. 2009, WAS PASSED BY THE
SENATE IN 1939.  84 CONG. REC. 6158.  THE SENATE BILL CONTAINED
LANGUAGE IDENTICAL TO THAT NOW FOUND IN THE FIRST SENTENCE OF SEC.
5(2)(F) - I.E., THE TRANSACTION SHOULD CONTAIN "FAIR AND EQUITABLE"
CONDITIONS. 

A BILL SIMILAR IN THIS RESPECT TO S. 2009 WAS INTRODUCED IN THE
HOUSE, BUT, BEFORE IT WAS SENT TO THE CONFERENCE COMMITTEE,
REPRESENTATIVE HARRINGTON INSERTED AN AMENDMENT WHICH ADDED A SECOND
SENTENCE TO THE ONE CONTAINED IN THE ORIGINAL VERSION, THIS SENTENCE
STATING THAT: 

"NO SUCH TRANSACTION SHALL BE APPROVED BY THE COMMISSION IF SUCH
TRANSACTION WILL RESULT IN UNEMPLOYMENT OR DISPLACEMENT OF EMPLOYEES OF
THE CARRIER OR CARRIERS, OR IN THE IMPAIRMENT OF EXISTING EMPLOYMENT
RIGHTS OF SAID EMPLOYEES."  84 CONG. REC. 9882. 

THE BILL CAME OUT OF THE CONFERENCE COMMITTEE WITHOUT REPRESENTATIVE
HARRINGTON'S ADDENDUM AND, DISSATISFACTION HAVING BEEN EXPRESSED BY
REPRESENTATIVE HARRINGTON AND OTHERS, A MOTION TO RECOMMIT WAS PASSED
BY THE HOUSE.  THIS MOTION REQUIRED THAT THE LANGUAGE OF THE ORIGINAL
HOUSE BILL BE RESTORED "BUT MODIFIED SO THAT THE SENTENCE IN SECTION 8
WHICH CONTAINS THE PROVISION KNOWN AS THE HARRINGTON AMENDMENT" SHOULD
SPEAK AS THE SECOND SENTENCE OF SEC.  5(2)(F) NOW DOES - VIZ., "THE
TRANSACTION WILL NOT RESULT IN EMPLOYEES OF SAID CARRIER  ...  BEING IN
A WORSE POSITION WITH REGARD TO THEIR EMPLOYMENT."  86 CONG. REC.
5886.  THIS NEW PHRASEOLOGY WAS ADOPTED BY THE CONFERENCE COMMITTEE,
WITH THE ADDED LIMITATION THAT SUCH PROTECTION NEED EXTEND NO MORE THAN
FOUR YEARS, AND THE BILL PASSED WITHOUT FURTHER RELEVANT ALTERATION. 
86 CONG. REC. 10193, 11766. 

IT WOULD NOT BE PRODUCTIVE TO RELATE IN DETAIL THE VARIOUS STATEMENTS
OFFERED BY MEMBERS OF THE HOUSE TO EXPLAIN THE SIGNIFICANCE OF THE
EVENTS OUTLINED ABOVE.  IT IS ENOUGH TO SAY THAT THEY WERE MANY,
SOMETIMES AMBIGUOUS AND OFTEN CONFLICTING.  HOWEVER, CERTAIN POINTS CAN
BE MADE WITH CONFIDENCE.  FIRST, IT IS CLEAR THAT THERE WERE TWO
ALTERATIONS MADE IN THE SUBSTANCE OF THE ORIGINAL HARRINGTON AMENDMENT:
NOT ONLY WAS A FOUR-YEAR LIMITATION IMPOSED, BUT ALSO GENERAL LANGUAGE
OF IMPRECISE IMPORT WAS USED IN SUBSTITUTION FOR LANGUAGE CLEARLY
REQUIRING "JOB FREEZE" SUCH AS APPEARED IN THE ORIGINAL AMENDMENT AND
THE 1933 ACT.  (FN5)  SECONDLY, THE REPRESENTATIVES WHOSE FLOOR
STATEMENTS ARE ENTITLED TO THE GREATEST WEIGHT ARE THOSE HOUSE MEMBERS
WHO HAD THE LAST WORD ON THE BILL - THE HOUSE CONFEREES WHO EXPLAINED
THE FINAL VERSION OF THE STATUTE TO THE HOUSE AT LARGE IMMEDIATELY
PRIOR TO PASSAGE - RATHER THAN THOSE CONGRESSMEN WHOSE VOICES WERE
HEARD IN THE EARLY SKIRMISHING BUT WHO DID NOT PARTICIPATE IN THE FINAL
COMPROMISE.  (FN6)  FINALLY, ALTHOUGH IT MIGHT BE AN OVERSTATEMENT TO
CLAIM THAT THEIR REMARKS ARE DISPOSITIVE, THE STATEMENTS THE HOUSE
CONFEREES GAVE IN EXPLANATION OF THE FINAL VERSION CLEARLY REVEAL AN
UNDERSTANDING THAT COMPENSATION, NOT "JOB FREEZE," WAS CONTEMPLATED. 
(FN7)  APPELLANTS VIGOROUSLY ARGUE THAT THE LEGISLATIVE HISTORY OF SEC.
5(2)(F) SUPPORTS THEIR INTERPRETATION.  HOWEVER, WERE WE TO AGREE, IT
WOULD BE NECESSARY TO SAY THAT A SUBSTANTIAL CHANGE IN PHRASEOLOGY WAS
MADE FOR NO PURPOSE AND TO DISREGARD THE STATEMENTS OF THOSE HOUSE
MEMBERS MOST INTIMATELY CONNECTED WITH THE FINAL VERSION OF THE
STATUTE. 

THE INDICATIONS GLEANED FROM THE HISTORY OF THE STATUTE ARE REINFORCED
AND CONFIRMED BY SUBSEQUENT EVENTS.  IMMEDIATELY AFTER THE SECTION WAS
PASSED, INTERESTED PARTIES - INCLUDING THE BROTHERHOOD APPEALING IN
THIS CASE - EXPRESSED THE OPINION THAT COMPENSATION PROTECTION FOR
DISCHARGED EMPLOYEES WAS THE INTENDMENT OF SEC. 5(2)(F).  (FN8)  THE
COMMISSION ECHOED THIS INTERPRETATION IN ITS NEXT ANNUAL REPORT, I.C.C.
55TH ANN. REP. 60-61, AND BEGAN IMPOSING COMPENSATORY CONDITIONS, AND
ONLY COMPENSATORY CONDITIONS, IN PROCEEDINGS INVOLVING SEC. 5
TRANSACTIONS.  SEE, E.G., CLEVELAND & PITTSBURGH R. CO. PURCHASE, 244
I.C.C. 793 (1941).  THE COMMISSION HAS CONSISTENTLY FOLLOWED THIS
PRACTICE TO DATE IN OVER 80 CASES, WITH THE FULL SUPPORT OF THE
INTERVENING BROTHERHOODS AND THE RLEA; (FN9) INDEED, IN ONE CASE WHERE
A VARIANT OF THE PRESENT DISPUTE AROSE, THE RLEA ARGUED AT LENGTH THAT
SEC. 5(2)(F) DID NOT IMPOSE A MANDATORY JOB FREEZE REQUIREMENT -
COMPENSATORY CONDITIONS WOULD BE SATISFACTORY.  (FN10)  IT IS TRUE THAT
MANY OF THESE PRIOR TRANSACTIONS DID NOT INVOLVE CONSOLIDATIONS OF THE
MAGNITUDE HERE PRESENTED.  HOWEVER, THE RELEVANCE OF THIS POINT IS
UNCLEAR SINCE THE STATUTE MAKES NO DISTINCTIONS BASED ON THE TYPE OF
TRANSACTION CONSIDERED, AND IT IS APPARENT THAT THE UNDERLYING
PRINCIPLE REMAINS THE SAME WHETHER 100 OR 1,000 EMPLOYEES ARE
AFFECTED.   (FN11) 

APPELLANTS' LAST POINT IS THAT TWO CASES IN THIS COURT HAVE
PREVIOUSLY TREATED THE PRESENT QUESTION FAVORABLY TO THEIR POSITION. 
RAILWAY LABOR EXECUTIVES' ASSN. V. UNITED STATES, 339 U.S. 142, AND
ORDER OF RAILROAD TELEGRAPHERS V. CHICAGO & NORTH WESTERN R. CO., 362
U.S. 330.  HOWEVER, NEITHER THE HOLDING NOR THE LANGUAGE OF THESE
CASES, IN FACT, SUPPORTS APPELLANTS' CLAIM.  THE RLEA CASE WAS NOT
CONCERNED WITH THE TYPES OF PROTECTION TO BE AFFORDED EMPLOYEES FOR THE
FIRST FOUR YEARS FOLLOWING THE MERGER; THE ONLY QUESTION WAS WHETHER
COMPENSATORY BENEFITS COULD BE EXTENDED BEYOND FOUR YEARS, AND THE
COURT HELD THEY COULD.  APPELLANTS POINT TO PASSAGES IN THE OPINION,
339 U.S., AT 151-154, IN WHICH, THEY ASSERT, THE COURT RECOGNIZED THAT
ONLY ONE CHANGE - THE FOUR-YEAR LIMITATION - WAS BLENDED INTO THE
HARRINGTON AMENDMENT BETWEEN ORIGINATION AND FINAL APPROVAL.  HOWEVER,
THIS CONTENTION IGNORES THE PLAIN RECOGNITION OF THE COURT, REVEALED ON
PAGE 152 OF THE OPINION, THAT TWO CHANGES OCCURRED, ONE OF WHICH BEING
THE ALTERATION IN LANGUAGE PERTINENT TO THE RESOLUTION OF THIS CASE. 
THE RAILROAD TELEGRAPHERS CASE IS EQUALLY INAPPOSITE.  THE QUESTION IN
THAT CASE CONCERNED THE POWER OF A FEDERAL COURT TO ENJOIN A STRIKE
OVER THE RAILROAD'S REFUSAL TO BARGAIN CONCERNING A "JOB FREEZE"
PROPOSAL IN THE COLLECTIVE BARGAINING CONTRACT, AND THERE IS NO
DISCUSSION OF THE PRESENT PROBLEM IN THE OPINION OF THE COURT. 

IN SHORT, WE ARE UNWILLING TO OVERTURN A LONG-STANDING ADMINISTRATIVE
INTERPRETATION OF A STATUTE, ACQUIESCED IN BY ALL INTERESTED PARTIES
FOR 20 YEARS, WHEN ALL THE SIGNPOSTS OF CONGRESSIONAL INTENT, TO THE
EXTENT THEY ARE ASCERTAINABLE, INDICATE THAT THE ADMINISTRATIVE
INTERPRETATION IS CORRECT.  CONSEQUENTLY, THE JUDGMENT OF THE DISTRICT
COURT MUST BE AFFIRMED. 

FN1  BRIEFLY, THE NEW ORLEANS CONDITIONS PRESCRIBE THE FOLLOWING:
EMPLOYEES RETAINED ON THE JOB BUT IN A LOWER PAYING POSITION GET THE
DIFFERENCE BETWEEN THE TWO SALARIES FOR FOUR YEARS FOLLOWING THE
MERGER; DISCHARGED EMPLOYEES GET THEIR OLD SALARIES FOR FOUR YEARS,
LESS WHATEVER THEY MAKE IN OTHER JOBS, OR THEY MAY ELECT A LUMP SUM
PAYMENT; TRANSFERRED EMPLOYEES GET CERTAIN MOVING EXPENSES, AND CERTAIN
FRINGE BENEFITS ARE INSURED; AND ANY ADDITIONAL BENEFITS THAT A GIVEN
EMPLOYEE WOULD HAVE RECEIVED UNDER THE WASHINGTON JOB PROTECTION
AGREEMENT, DISCUSSED IN THE TEXT INFRA, ARE GUARANTEED.    FN2
APPELLANTS DO RELATE CERTAIN OBJECTIONS TO THE ADEQUACY OF THE
CONDITIONS BUT IT SEEMS CLEAR THAT THESE OBJECTIONS, WHICH WERE NOT
INTRODUCED BEFORE THE COMMISSION OR THE COURT BELOW EXCEPT AT THE
HEARING FOR TEMPORARY INJUNCTIVE RELIEF, HAVE BEEN INCLUDED IN
APPELLANTS' BRIEF ONLY AS BACKGROUND MATERIAL.  IF APPELLANTS WISH TO
CHALLENGE DIRECTLY THE ADEQUACY OF THE CONDITIONS, IT SEEMS CLEAR THAT
THEY MAY STILL PROCEED TO DO SO PURSUANT TO SEC. 5(9) OF THE ACT. 

IN THIS CONNECTION, IT SHOULD BE NOTED THAT APPELLANTS HAVE CONTENDED
THAT THE LOWER COURT ERRED WHEN IT REFUSED TO ACCEPT CERTAIN TESTIMONY
CONCERNING THE ADEQUACY OF THE CONDITIONS.  THE SHORT ANSWER TO THIS IS
THAT THE COURT DID NOT REFUSE TO ACCEPT APPELLANTS' PROOF; THE COURT
EXPLICITLY REFRAINED FROM RULING ON THE MATTER WHEN THE OFFER WAS MADE
AND APPELLANTS NEVER RENEWED THEIR EFFORTS.  SEE R. 179. 

FN3  A DISCUSSION OF THIS AGREEMENT AND ITS TERMS IS FOUND IN UNITED
STATES V. LOWDEN, 308 U.S. 225. 

FN4  SEE HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE ON H.R.  2531 AND H.R. 4862, 76TH CONG., 1ST SESS. 216
217, 275. 

FN5  AS FURTHER EVIDENCE THAT CONGRESS WOULD HAVE SPECIFIED "JOB
FREEZE" HAD IT MEANT "JOB FREEZE" IN THE 1940 ACT, COMPARE THE 1943
AMENDMENT TO SEC. 222(F) OF THE COMMUNICATIONS ACT, 47 U.S.C. SEC.
222(F), WHERE AN EMPLOYEE PROTECTIVE ARRANGEMENT WAS ADDED BY THE
FOLLOWING LANGUAGE:

"EACH EMPLOYEE OF ANY CARRIER WHICH IS A PARTY TO A CONSOLIDATION OR
MERGER PURSUANT TO THIS SECTION WHO WAS EMPLOYED BY SUCH CARRIER
IMMEDIATELY PRECEDING THE APPROVAL OF SUCH CONSOLIDATION OR MERGER, AND
WHOSE PERIOD OF EMPLOYMENT BEGAN ON OR BEFORE MARCH 1, 1941, SHALL BE
EMPLOYED BY THE CARRIER RESULTING FROM SUCH CONSOLIDATION OR MERGER FOR
A PERIOD OF NOT LESS THAN FOUR YEARS FROM THE DATE OF THE APPROVAL OF
SUCH CONSOLIDATION OR MERGER, AND DURING SUCH PERIOD NO SUCH EMPLOYEE
SHALL, WITHOUT HIS CONSENT, HAVE HIS COMPENSATION REDUCED OR BE
ASSIGNED TO WORK WHICH IS INCONSISTENT WITH HIS PAST TRAINING AND
EXPERIENCE IN THE TELEGRAPH INDUSTRY."  SEE ALSO THE REMARKS OF SENATOR
WHITE, A PROPONENT OF THIS BILL, AT 89 CONG. REC. 1195-1196. 

FN6  APPELLANTS POINT OUT THAT SEVERAL MEMBERS OF THE CONFERENCE
COMMITTEE OPPOSED THE MOTION TO RECOMMIT.  HOWEVER, AS APPELLANTS MUST
CONCEDE, RELIANCE ON UNEXPLAINED OPPOSITION TO A PROPOSAL IS
UNTRUSTWORTHY AT BEST.  WITNESS THE FACT THAT ALL THE HOUSE MEMBERS ON
WHOSE REMARKS APPELLANTS BASE THEIR POSITION (REPRESENTATIVES WARREN,
HARRINGTON, AND THOMAS) VOTED AGAINST THE FINAL VERSION OF THE BILL. 

FN7  SEE THE REMARKS OF CONFERENCE CHAIRMAN LEA AT 86 CONG. REC.
10178, PARTICULARLY THAT PART OF HIS EXPLANATION RESPONDING TO
QUESTIONS PUT BY REPRESENTATIVES VORYS AND O'CONNOR, WHERE IT WAS
SAID: 

"MR. VORYS OF OHIO.  MR. SPEAKER, WILL THE GENTLEMAN YIELD? 

"MR. LEA.  I YIELD TO THE GENTLEMAN FROM OHIO. 

"MR. VORYS OF OHIO.  WOULD THIS 4-YEAR RULE HAVE THE EFFECT OF
DELAYING A CONSOLIDATION FOR 4 YEARS, OR WOULD IT MEAN THAT IF A
CONSOLIDATION WERE MADE THERE WOULD STILL BE A 4-YEAR PERIOD DURING
WHICH THE MAN WOULD BE PAID? 

"MR. LEA.  NO; THIS RULE DOES NOT DELAY CONSOLIDATION.  IT MEANS FROM
THE EFFECTIVE DATE OF THE ORDER OF THE COMMISSION THE BENEFITS ARE
AVAILABLE FOR 4 YEARS.  THE ORDER DETERMINES THE DATE, AND THE
PROTECTIVE BENEFITS RUN 4 YEARS FROM THAT DATE. 

"MR. VORYS OF OHIO.  THAT WOULD BE WHETHER OR NOT THEY WERE STILL
EMPLOYED? 

"MR. LEA.  YES. 

"MR. O'CONNOR.  MR. SPEAKER, WILL THE GENTLEMAN YIELD? 

"MR. LEA.  I YIELD TO THE GENTLEMAN FROM MONTANA. 

"MR. O'CONNOR.  AS I WANT TO SEE THOSE WHO MIGHT LOSE THEIR JOBS AS A
RESULT OF CONSOLIDATION PROTECTED, I SHOULD LIKE TO HAVE THE
GENTLEMAN'S INTERPRETATION OF THE PHRASE THAT THE EMPLOYEE WILL NOT BE
PLACED IN A WORSE POSITION WITH RESPECT TO HIS EMPLOYMENT.  DOES 'WORSE
POSITION' AS USED MEAN THAT HIS COMPENSATION WILL BE JUST THE SAME FOR
A PERIOD OF 4 YEARS, ASSUMING THAT HE WERE EMPLOYED FOR 4 YEARS, AS IT
WOULD IF NO CONSOLIDATION WERE EFFECTED? 

"MR. LEA.  I TAKE THAT TO BE THE CORRECT INTERPRETATION OF THOSE
WORDS." 

SEE ALSO THE STATEMENTS OF CONFERENCE MEMBER HALLECK AT 86 CONG. REC.
10187, AND CONFERENCE MEMBER WOLVERTON AT 86 CONG. REC. 10189.  THE
CONFERENCE REPORT ALSO LENDS ITSELF TO THIS INTERPRETATION.  H.R. REP.
NO. 2832, 76TH CONG., 3D SESS., PP. 68-69. 

FN8  IN ITS OFFICIAL ORGAN, APPELLANT BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYES STATED:

"FOUR YEARS' FULL PAY 

"2.  THE LAW PROVIDES THAT ANY EMPLOYE WHO HAS BEEN IN THE SERVICE OF
A RAILROAD FOUR YEARS OR MORE, AND LOSES HIS JOB BECAUSE OF A MERGER OR
'COORDINATION', MUST BE PAID HIS FULL WAGES FOR FOUR YEARS.  IF HE HAS
BEEN A RAILROAD EMPLOYE LESS THAN FOUR YEARS, HE MUST BE PAID HIS FULL
WAGES FOR A PERIOD AS LONG AS HIS PREVIOUS SERVICE. 

"NO SUCH PROTECTION AND COMPENSATION HAVE EVER BEEN GUARANTEED BY LAW
TO THE EMPLOYES OF ANY OTHER INDUSTRY, AND THE RAILROAD WORKERS SECURED
THESE UNPRECEDENTED BENEFITS THROUGH THE BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYES, IN A COOPERATIVE MOVEMENT WITH THE OTHER STANDARD
RAILROAD LABOR ORGANIZATIONS."  49 JOURNAL 13-14 (OCT. 1940). 

SEE ALSO 57 THE RAILWAY CONDUCTOR 308 (OCT. 1940); 39 RAILWAY CLERK
467, 488.  IT IS CLEAR THAT THE DISTRICT COURT DID NOT ERR IN TAKING
COGNIZANCE OF THESE PUBLICATIONS, PARTICULARLY SINCE APPELLANTS RAISED
NO OBJECTIONS BELOW.  CF. TEXAS & PACIFIC R. CO. V. POTTORFF, 291 U.S.
245, 254. 

FN9  A COMPREHENSIVE LIST OF THE DECIDED CASES, WITH A DESCRIPTION OF
THE CONDITIONS IMPOSED, IS FOUND IN THE APPENDIX TO THE BRIEF OF THE
UNITED STATES IN THIS CASE.  IT IS NOTEWORTHY THAT THIS COURT HAS
RECENTLY AFFIRMED A CASE IN WHICH THE COMMISSION IMPOSED LESS
COMPREHENSIVE CONDITIONS THAN THOSE IN THIS CASE.  CITY OF NASHVILLE V.
UNITED STATES, 355 U.S. 63. 

FN10  SEE MEMORANDUM BRIEF OF RLEA, FINANCE DOCKET NO. 12460, FILED
IN FORT WORTH & D.C.R. CO. LEASE, 247 I.C.C. 119. 

FN11  ACCORDING TO THE FINDINGS OF THE HEARING EXAMINER IN THIS CASE,
863 EMPLOYEES WILL BE TOTALLY DEPRIVED OF EMPLOYMENT DURING THE FIVE
YEAR PERIOD FOLLOWING THE MERGER.  APPELLANTS ARGUE THAT THERE IS NO
NEED FOR THESE DISCHARGES SINCE NATURAL ATTRITION WILL OPEN UP MANY
MORE THAN 863 JOBS DURING THE SAME PERIOD.  HOWEVER, AS THE RAILROADS
POINT OUT, ATTRITION DOES NOT WORK IN A UNIFORM OR PREDICTABLE MANNER
AND THERE IS NO INDICATION THAT THE ELIMINATION OF SURPLUS POSTS CAN BE
ACCOMPLISHED BY THE METHOD APPELLANTS SUGGEST; MOREOVER, IF ATTRITION
DOES OPEN UP SUITABLE POSITIONS, THE RAILROAD IS BOUND BY THE
COLLECTIVE BARGAINING AGREEMENT TO CALL BACK THE DISCHARGED EMPLOYEES. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS CASE IS A MINOR EPISODE IN AN IMPORTANT CHAPTER OF MODERN
HISTORY.  IT CONCERNS THE IMPACT OF ECONOMIC AND TECHNOLOGICAL CHANGES
ON WORKERS (FN1) AND THE MANNER IN WHICH GOVERNMENT WILL DEAL WITH IT.
THE COURTS DO NOT DETERMINE THAT POLICY; IT IS A LEGISLATIVE MATTER. 
BUT THE JUDICIAL ATTITUDE HAS MUCH TO DO WITH THE MANNER IN WHICH
LEGISLATIVE AMBIGUITIES WILL BE RESOLVED. 

THERE ARE SOME WHO THINK THAT TECHNOLOGICAL CHANGE WILL PRODUCE BOTH
OUR HIGHEST INDUSTRIAL AND BUSINESS ACTIVITY AND OUR GREATEST
UNEMPLOYMENT.  DR. ROBERT M. HUTCHINS RECENTLY STATED THE BASIC
CONFLICT BETWEEN INDIVIDUAL FREEDOM AND TECHNOLOGY: 

"INDIVIDUAL FREEDOM IS ASSOCIATED WITH DOUBT, HESITANCY, PERPLEXITY,
TRIAL AND ERROR.  THESE TECHNOLOGY CANNOT COUNTENANCE.  LIBERTY UNDER
LAW PRESUPPOSES THE SUPREMACY OF POLITICS.  IT PRESUPPOSES THE
POSSIBILITY, FOR EXAMPLE, THAT POLITICAL DELIBERATION MIGHT LEAD TO THE
DECISION TO POSTPONE THE INTRODUCTION OF A NEW MACHINE.  TECHNOLOGY, ON
THE OTHER HAND, ASSERTS THAT WHAT WE CAN DO IS WORTH DOING; THE THINGS
MOST WORTH DOING ARE THOSE WE CAN DO MOST EFFICIENTLY  ...  ."  TWO
FACES OF FEDERALISM (1961), P. 22. 

THE MEASURE OF THE CONFLICT IS SEEN ONLY IN A BROAD FRAME OF
REFERENCE.  AS DR. HUTCHINS SAID: 

"TECHNOLOGY HOLDS OUT THE HOPE THAT MEN CAN ACTUALLY ACHIEVE AT LAST
GOALS TOWARD WHICH THEY HAVE BEEN STRUGGLING SINCE THE DAWN OF HISTORY:
FREEDOM FROM WANT, DISEASE, AND DRUDGERY, AND THE CONSEQUENT
OPPORTUNITY TO LEAD HUMAN LIVES.  BUT A RICH, HEALTHY, WORKLESS WORLD
PEOPLED BY BIO-MECHANICAL LINKS IS AN INHUMAN WORLD.  THE PROSPECTS OF
HUMANITY TURN UPON ITS ABILITY TO FIND THE LAW THAT WILL DIRECT
TECHNOLOGY TO HUMAN USES."  TWO FACES OF FEDERALISM (1961), P. 24. 

THE SECRETARY OF LABOR, ARTHUR J. GOLDBERG, RECENTLY PUT THE PROBLEM
IN SIMPLE TERMS:  (FN2) 

"THE ISSUE BEING JOINED IN OUR ECONOMY TODAY - ONE THAT IS PRESENT IN
SOME FORM IN EVERY MAJOR INDUSTRIAL NEGOTIATION - IS SIMPLY STATED:
HOW CAN THE NECESSITY FOR CONTINUED INCREASES IN PRODUCTIVITY, BASED
UPON LABOR-SAVING TECHNIQUES, BE MET WITHOUT CAUSING INDIVIDUAL
HARDSHIP AND WIDESPREAD UNEMPLOYMENT?" 

THIS CASE IS A PHASE OF THAT PROBLEM. 

THIS IS NOT THE FIRST INSTANCE OF A CONTROVERSY SETTLED IN CONGRESS
BY ADOPTION OF AMBIGUOUS LANGUAGE AND THEN TRANSFERRED TO THE COURTS,
EACH SIDE CLAIMING A VICTORY IN THE LEGISLATIVE HALLS.  (FN3) 

THE SENATE PASSED A BILL WHICH REQUIRED THE INTERSTATE COMMERCE
COMMISSION IN APPROVING A RAILROAD MERGER TO MAKE "A FAIR AND EQUITABLE
ARRANGEMENT TO PROTECT THE INTEREST OF THE EMPLOYEES AFFECTED."   (FN4)
THE HOUSE COMMITTEE ADOPTED THE SAME LANGUAGE.  (FN5)  WHEN THE BILL
REACHED THE FLOOR OF THE HOUSE, MR. HARRINGTON SUGGESTED THE FOLLOWING
PROVISO:  (FN6) 

"PROVIDED, HOWEVER, THAT NO SUCH TRANSACTION SHALL BE APPROVED BY THE
COMMISSION IF SUCH TRANSACTION WILL RESULT IN UNEMPLOYMENT OR
DISPLACEMENT OF EMPLOYEES OF THE CARRIER OR CARRIERS, OR IN THE
IMPAIRMENT OF EXISTING EMPLOYMENT RIGHTS OF SAID EMPLOYEES." 

THAT AMENDMENT WOULD HAVE PROHIBITED PERMANENTLY THE DISPLACEMENT OF
EMPLOYEES AS A RESULT OF MERGERS.  IT WAS ADOPTED BY THE HOUSE.  (FN7)
BUT IN CONFERENCE THAT PROVISO WAS ELIMINATED ALONG WITH THE MERGER
PROVISIONS THAT GAVE RISE TO IT.  (FN8)  THE HOUSE RECOMMITTED THE BILL
WITH INSTRUCTIONS THAT THE PROVISIONS RELATING TO COMBINATIONS AND
CONSOLIDATIONS OF CARRIERS BE INCLUDED IN THE BILL, AND BE AMENDED TO
PROVIDE THAT THE COMMISSION MUST INCLUDE IN ITS ORDERS AUTHORIZING
MERGERS "TERMS AND CONDITIONS PROVIDING THAT SUCH TRANSACTION WILL NOT
RESULT IN EMPLOYEES OF SAID ...  CARRIERS BEING IN A WORSE POSITION
WITH RESPECT TO THEIR EMPLOYMENT."  (FN9) 

THE CONFERENCE ACCEPTED THIS VERSION, LIMITING THE PROTECTIVE CLAUSE
TO FOUR YEARS.  THE CONFERENCE REPORT EMPHASIZES THAT THE CHANGE MADE
IN THE HARRINGTON PROPOSAL WAS IN LIMITING ITS OPERATION TO FOUR
YEARS.  (FN10)  MR. LEA, CHAIRMAN OF THE HOUSE CONFEREES, STATED THE
SAME IN THE HOUSE:  (FN11) 

"THE SUBSTITUTE THAT WE BRING IN HERE PROVIDES TWO ADDITIONAL
THINGS.  FIRST, THERE IS A LIMITATION ON THE OPERATION OF THE
HARRINGTON AMENDMENT FOR 4 YEARS FROM THE EFFECTIVE DATE OF THE ORDER
OF THE COMMISSION APPROVING THE CONSOLIDATION.  IN OTHER WORDS, THE
EMPLOYEES HAVE THE PROTECTION AGAINST UNEMPLOYMENT FOR 4 YEARS, BUT THE
COMMISSION IS NOT REQUIRED TO GIVE THEM BENEFITS FOR ANY LONGER
PERIOD.  IF THE EMPLOYEES THEMSELVES MAKE AN AGREEMENT WITH THE
RAILROAD COMPANY FOR A BETTER OR A LONGER PERIOD, THAT IS A MATTER
BETWEEN THE RAILROAD MEN AND THE RAILROADS, BUT THIS 4-YEAR LIMITATION
IS ESTABLISHED BY THE PENDING CONFERENCE AGREEMENT. 

"THERE IS ANOTHER LIMITATION ON THE PROTECTIVE BENEFITS AFFORDED BY
THE AMENDMENT.  THE BENEFIT PERIOD SHALL NOT BE REQUIRED FOR A LONGER
PERIOD THAN THE PRIOR EMPLOYMENT OF THE EMPLOYEE BEFORE THE
CONSOLIDATION OCCURRED.  IN OTHER WORDS, UNDER THE ORIGINAL HARRINGTON
AMENDMENT, IF A MAN WAS EMPLOYED FOR 6 MONTHS, HE WOULD INDEFINITELY BE
SUBJECT TO THE BENEFITS OF THE AMENDMENT FROM THE RAILROAD COMPANY.  WE
HAVE CHANGED THAT SO THE RAILROAD COMPANY WILL NOT BE REQUIRED TO
MAINTAIN HIM IN NO WORSE CONDITION AS TO HIS EMPLOYMENT FOR ANY LONGER
PERIOD THAN HE WORKED BEFORE THE CONSOLIDATION OCCURRED. 

"WE BELIEVE THAT IS A VERY FAIR AND A VERY LIBERAL PROVISION FOR
LABOR.  WE BELIEVE THAT RAILWAY LABOR SUBSTANTIALLY AGREES IN THAT
VIEWPOINT.  WE TAKE NOTHING FROM LABOR BY THIS AGREEMENT." 

MR. WOLVERTON, ANOTHER HOUSE CONFEREE, STATED:  (FN12) 

"IT WAS RECOGNIZED THAT THE REAL INTENT OF THE SPONSORS WAS TO SAVE
RAILROAD EMPLOYEES FROM BEING SUDDENLY THRUST OUT OF EMPLOYMENT AS THE
RESULT OF ANY CONSOLIDATION OR MERGER ENTERED INTO." 

THESE ARE THE STATEMENTS (FN13) WHICH, THE COURT SAYS, "ARE ENTITLED
TO THE GREATEST WEIGHT" IN INTERPRETING THE PROVISO.  I DO NOT THINK
THAT THESE STATEMENTS - NOR ANY PART OF THIS LEGISLATIVE HISTORY -
"CLEARLY REVEAL AN UNDERSTANDING THAT COMPENSATION, NOT 'JOB FREEZE,'
WAS CONTEMPLATED."  INSTEAD I FIND THIS LEGISLATIVE HISTORY - AS THE
COURT ELSEWHERE SEEMS TO RECOGNIZE - TO BE, AT BEST, AMBIGUOUS. 
COMPENSATORY RELIEF WILL RESULT IN THE EMPLOYEES' BEARING THE INITIAL
SHOCK OF THE RAILROADS' REDUCTION IN PLANT.  THE COMMISSION AND THE
RAILROADS CONTEND FOR A PHILOSOPHY OF FIRING FIRST AND PICKING UP THE
SOCIAL PIECES LATER.  THE COURT SEIZES ON AMBIGUOUS MATERIALS TO IMPUTE
TO CONGRESS APPROVAL OF THAT PHILOSOPHY.  I WOULD RESOLVE THE AMBIGUITY
IN FAVOR OF THE EMPLOYEES.  I WOULD READ THE PROVISO AS MEANING THAT
NOTHING LESS THAN FOUR-YEAR EMPLOYMENT PROTECTION TO EVERY EMPLOYEE
WOULD SATISFY THE ACT, THOUGH NOT NECESSARILY A FOUR-YEAR PROTECTION IN
HIS OLD JOB.  IN A REALISTIC SENSE A MAN WITHOUT A JOB IS "IN A WORSE
POSITION WITH RESPECT TO" HIS "EMPLOYMENT," THOUGH HE RECEIVES SOME
COMPENSATION FOR DOING NOTHING.  MANY MEN, AT LEAST, ARE NOT DRONES;
AND THEIR CONTINUED ACTIVITY IS LIFE ITSELF.  THE TOLL WHICH ECONOMIC
AND TECHNOLOGICAL CHANGES WILL MAKE ON EMPLOYEES IS SO GREAT THAT THEY,
RATHER THAN THE CAPITAL WHICH THEY HAVE CREATED, (FN14) SHOULD BE THE
BENEFICIARIES OF ANY DOUBTS THAT OVERHANG THESE LEGISLATIVE
CONTROVERSIES WHEN THEY ARE SHIFTED TO THE COURTS.    FN1  "IN
CALIFORNIA, THE BANK OF AMERICA INSTALLED ELECTRONIC COMPUTERS IN ITS
MORTGAGE-AND-LOAN OPERATION, AND 100 EMPLOYEES ARE NOW DOING THE WORK
OF 300.  IN CLEVELAND, AN ELECTRONICALLY CONTROLLED CONCRETE PLANT CAN
IN ONE HOUR PRODUCE 200 CUBIC YARDS OF CONCRETE IN ANY OF 1,500 MIXING
FORMULAS, WITHOUT A SINGLE WORKER PERFORMING MANUAL LABOR AT ANY POINT
IN THE PROCESS. 

"IN A BAKERY IN CHICAGO, ONE MAN OPERATES A PIECE OF EQUIPMENT THAT
MOVES 20 TONS OF FLOUR AN HOUR, REPLACING 24 MEN WHO USED TO MOVE 10
TONS AN HOUR.  IN THE BREAD-BAKING DEPARTMENT OF THIS SAME PLANT, ONE
HALF OF THE WORKERS WERE SUPPLANTED BY AUTOMATION, AND IN THE WRAPPING
DEPARTMENT, NO LESS THAN 70 PER CENT OF THE WORKERS FORMERLY NEEDED
HAVE BEEN REPLACED BY MACHINES. 

"IN THE TEXTILE INDUSTRY, ENTIRE PLANTS HAVE MOVED OUT OF NEW ENGLAND
TOWNS TO SET UP NEW AUTOMATED FACTORIES IN THE SOUTH, USING A
COMPARATIVE HANDFUL OF WORKERS AND LEAVING GREAT HARDSHIP AND SUFFERING
BEHIND.  IN THE AUTOMOBILE INDUSTRY, NEW ELECTRONICALLY CONTROLLED
ASSEMBLY LINES HELPED TO CUT TOTAL EMPLOYMENT BY 20 PER CENT BETWEEN
1956 AND 1958, AND OVER 200,000 WORKERS DROPPED OUT OF THE UNITED
AUTOMOBILE WORKERS FROM MID-1957 TO EARLY 1959. 

"IN THE SHIPPING INDUSTRY, HUGE CONTAINERS ARE NOW PACKED AND SEALED
AT FACTORIES AND LOADED DIRECTLY ABOARD SPECIAL NEW COMPARTMENTED
SHIPS, ELIMINATING THE NEED FOR THOUSANDS OF LONGSHOREMEN.   IN THE
TRANSPORTATION-EQUIPMENT INDUSTRY, PRODUCTION ROSE, BUT EMPLOYMENT FELL
BY A QUARTER OF A MILLION WORKERS BETWEEN JANUARY, 1956, AND DECEMBER,
1958.  IN THE RUBBER INDUSTRY, THERE WAS A DROP OF 25,000 WORKERS.  IN
THE CHEMICAL INDUSTRY, 36,000 WORKERS WERE DISPLACED BY AUTOMATION." 
DAVIDSON, OUR BIGGEST STRIKE PERIL:  FEAR OF AUTOMATION, LOOK MAGAZINE,
APRIL 25, 1961, PP. 69, 75. 

SEE ALSO THE REMARKS OF WALTER P. REUTHER, PRESIDENT, UNITED
AUTOMOBILE WORKERS OF AMERICA, AS QUOTED IN CHRISTIAN SCIENCE MONITOR,
THURSDAY, APR. 27, 1961, P. 4, COL. 2:  "WHEN A WORKER IS REPLACED BY A
MACHINE, OR HIS SKILL IS MADE OBSOLETE, OR HIS PLANT MOVES, THE CHANGE
MAY BENEFIT SOCIETY AS A WHOLE AND HIS EMPLOYER IN PARTICULAR; BUT THAT
WORKER IS IN TROUBLE." 

FN2  GOLDBERG, CHALLENGE OF "INDUSTRIAL REVOLUTION II," N.Y. TIMES
MAGAZINE, APR. 2, 1961, P. 11.  AND SEE A.H. RASKINS'S RECENT SERIES IN
THE NEW YORK TIMES.  N.Y. TIMES, THURSDAY, APR. 6, 1961, P. 1, COLS.  2
3; N.Y. TIMES, FRIDAY, APR. 7, 1961, P. 1, COLS.  2-3; N.Y.  TIMES,
SATURDAY, APR. 8, 1961, P. 1, COLS.  2-3; N.Y. TIMES, SUNDAY, APR. 9,
1961, P. 1, COLS.  2-3. 

FN3  SEE NEWMAN AND SURREY, LEGISLATION (1955), PP. 158-178. 

FN4  S. REP. NO. 433, 76TH CONG., 1ST SESS., P. 29. 

FN5  H.R. REP. NO. 1217, 76TH CONG., 1ST SESS., P. 12. 

FN6  84 CONG. REC., PT. 9, 76TH CONG., 1ST SESS., PP. 9882-9883. 

FN7  84 CONG. REC. 9887. 

FN8  H.R. REP. NO. 2016, 76TH CONG., 3D SESS., P. 61. 

FN9  86 CONG. REC., PT. 6, 76TH CONG., 3D SESS., P. 5886. 

FN10  "THE CONFERENCE AGREEMENT ON THE HARRINGTON AMENDMENT INCLUDES
A PROVISION OF THE INSTRUCTION WHICH PROVIDES THAT THE ORDER OF
APPROVAL SHALL INCLUDE TERMS AND CONDITIONS PROVIDING THAT THE
TRANSACTION SHALL NOT RESULT IN THE EMPLOYEES BEING IN A WORSE POSITION
WITH RESPECT TO THEIR EMPLOYMENT.  THE CONFERENCE AGREEMENT, HOWEVER,
QUALIFIES THIS PROVISION BY CONFINING ITS OPERATION TO A PERIOD OF 4
YEARS FROM THE EFFECTIVE DATE OF THE ORDER APPROVING THE TRANSACTION
AND PROVIDING FURTHER THAT THE PROTECTION AFFORDED TO AN EMPLOYEE SHALL
NOT BE REQUIRED TO CONTINUE FOR A LONGER PERIOD FOLLOWING THE EFFECTIVE
DATE OF THE ORDER THAN THE PERIOD FOR WHICH SUCH EMPLOYEE WAS IN THE
EMPLOY OF AN AFFECTED CARRIER PRIOR TO THE EFFECTIVE DATE OF THE
ORDER. 

"IN ORDER WORDS, THE HARRINGTON AMENDMENT MADE ALL EMPLOYEES OF THE
AFFECTED CARRIERS EQUAL BENEFICIARIES OF ITS PROVISIONS REGARDLESS OF
THE LENGTH OF TIME THEY MAY HAVE BEEN EMPLOYED PRIOR TO A
CONSOLIDATION.  IT ALSO REQUIRED THE CARRIER TO MAINTAIN THE BENEFITS
OF ITS PROVISIONS INDEFINITELY AND WITHOUT ANY SPECIFIED LIMITATION BY
TIME OR OTHERWISE.  UNDER THE TERMS OF THE CONFERENCE AGREEMENT THE
BENEFITS TO EMPLOYEES WILL BE REQUIRED TO BE PAID FOR NOT LONGER THAN 4
YEARS AFTER THE CONSOLIDATION, AND IN NO CASE FOR LONGER THAN THE
SERVICE OF THE EMPLOYEE FOR THE AFFECTED CARRIERS PRIOR TO THE
EFFECTIVE DATE OF THE ORDER AUTHORIZING THE CONSOLIDATION."  H.R. REP.
NO. 2832, 76TH CONG., 3D SESS., P. 69. 

THE COURT REFERS TO THE "UNEXPLAINED OPPOSITION" OF MR. HARRINGTON TO
THE FINAL VERSION OF THE BILL.  BUT THE RECORD OFFERS A PLAUSIBLE
EXPLANATION FOR HIS OPPOSITION.  MR. HARRINGTON HIMSELF APPARENTLY HAD
DECIDED THAT THE PROPOSED AMENDMENT WAS OBJECTIONABLE BECAUSE IT FAILED
TO COVER ABANDONMENTS.  86 CONG. REC., PT. 9, 76TH CONG., 3D SESS., P.
10187.  AND SEE THE REMARKS OF MR. CROSSER, 86 CONG. REC., PT. 9, 76TH
CONG., 3D SESS., P. 10192. 

FN11  86 CONG. REC., PT. 9, P. 10178. 

FN12  ID., P. 10189. 

FN13  THE THIRD HOUSE CONFEREE ON WHOSE REMARKS THE COURT SEEMS TO
RELY IS CONGRESSMAN HALLECK.  BUT HE MERELY SAYS THAT THE PROVISO
"FOLLOWS THE PRINCIPLE OF THE SO-CALLED WASHINGTON AGREEMENT."  WHAT
THAT PRINCIPLE WAS HE MAKES CLEAR IN HIS NEXT SENTENCE:  "THIS LANGUAGE
GIVES TO THE EMPLOYEES GREATER PROTECTION AND MORE FAR-REACHING
PROTECTION AND RECOGNIZES THE PRINCIPLE TO WHICH WE ALL SUBSCRIBE, THAT
RIGHTS OF EMPLOYEES SHOULD BE PROTECTED, AND, BEYOND THAT, WRITES IT
INTO LAW."  ID., P. 10187.  THE COURT ALSO RELIES ON CONGRESSMAN LEA'S
ACQUIESCENCE IN THE ASSERTIONS - MORE OR LESS EQUIVOCAL - OF
CONGRESSMEN VORYS AND O'CONNOR.  BUT, EVEN ASSUMING THOSE ASSERTIONS
NEGATIVE A GUARANTEE OF CONTINUING EMPLOYMENT, CONGRESSMAN LEA'S
ACQUIESCENCE HARDLY JIBES FULLY WITH HIS MORE EXTENDED REMARKS ON THE
SAME SUBJECT WHICH I HAVE QUOTED ABOVE. 

FN14  LINCOLN IN HIS ANNUAL MESSAGE TO CONGRESS, DEC. 3, 1861,
STATED:  "LABOR IS PRIOR TO, AND INDEPENDENT OF, CAPITAL.  CAPITAL IS
ONLY THE FRUIT OF LABOR, AND COULD NEVER HAVE EXISTED IF LABOR HAD NOT
FIRST EXISTED.  LABOR IS THE SUPERIOR OF CAPITAL, AND DESERVES MUCH THE
HIGHER CONSIDERATION."  V BASLER, THE COLLECTED WORKS OF ABRAHAM
LINCOLN (1953), P. 52. 
..END :



















KOLOVRAT V. OREGON 366 U.S. 187 


NO. 102.  ARGUED MARCH 30, 1961 - DECIDED MAY 1, 1961 - 220 ORE.  448,
349 P.2D 255, REVERSED. 


TWO RESIDENTS OF OREGON DIED INTESTATE, LEAVING PERSONAL PROPERTY
THERE AND NO HEIRS OR NEXT OF KIN EXCEPT CERTAIN RESIDENTS AND
NATIONALS OF YUGOSLAVIA.  CLAIMING THAT THE YUGOSLAVIAN RELATIVES WERE
INELIGIBLE TO INHERIT SUCH PROPERTY UNDER AN OREGON STATUTE, THE STATE
SUED IN A STATE COURT TO HAVE THE PROPERTY DECLARED ESCHEATED TO THE
STATE.  HELD:  AN 1881 TREATY BETWEEN THE UNITED STATES AND SERBIA,
WHICH IS NOW A PART OF YUGOSLAVIA, ENTITLES RESIDENTS AND CITIZENS OF
YUGOSLAVIA TO INHERIT PERSONAL PROPERTY LOCATED IN OREGON ON THE SAME
BASIS AS AMERICAN NEXT OF KIN, AND THESE RIGHTS HAVE NOT BEEN TAKEN
AWAY OR IMPAIRED BY THE MONETARY POLICIES OF YUGOSLAVIA EXERCISED IN
ACCORDANCE WITH LATER AGREEMENTS BETWEEN THAT COUNTRY AND THE UNITED
STATES.  PP. 188-198. 

(A)  UNDER THE 1881 TREATY, WITH ITS "MOST FAVORED NATION" CLAUSE,
THESE YUGOSLAVIAN RELATIVES HAVE THE SAME RIGHT TO INHERIT THEIR
AMERICAN RELATIVES' PERSONAL PROPERTY AS THEY WOULD HAVE IF THEY WERE
AMERICAN CITIZENS LIVING IN OREGON.  PP. 191-196. 

(B)  THE INTERNATIONAL MONETARY FUND AGREEMENT OF 1944, TO WHICH THE
UNITED STATES AND YUGOSLAVIA ARE PARTIES, AND AN AGREEMENT OF 1948
BETWEEN THE UNITED STATES AND YUGOSLAVIA, COUPLED WITH THE CONTINUED
ADHERENCE OF THE UNITED STATES TO THE 1881 TREATY, PRECLUDE ANY STATE
FROM DECIDING THAT YUGOSLAVIAN FOREIGN EXCHANGE LAWS MEETING THE
STANDARDS OF THOSE AGREEMENTS CAN BE THE BASIS FOR DEFEATING RIGHTS
CONFERRED BY THE 1881 TREATY.  PP. 196-198. 

KOLOVRAT ET AL. V. OREGON. 

CERTIORARI TO THE SUPREME COURT OF OREGON. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

JOE STOICH AND MUHAREM ZEKICH DIED IN OREGON IN DECEMBER 1953 WITHOUT
HAVING MADE WILLS TO DISPOSE OF PERSONAL PROPERTY THEY OWNED IN THAT
STATE.  THEIR ONLY HEIRS AND NEXT OF KIN, WHO BUT FOR BEING ALIENS
COULD HAVE INHERITED THIS OREGON PROPERTY UNDER OREGON LAW, WERE
BROTHERS, SISTERS, NIECES AND NEPHEWS WHO WERE ALL RESIDENTS AND
NATIONALS OF YUGOSLAVIA.  BUT SEC. 111.070 OF THE OREGON REVISED
STATUTES RATHER SEVERELY LIMITS THE RIGHTS OF ALIENS NOT LIVING IN THE
UNITED STATES TO "TAKE" EITHER REAL OR PERSONAL PROPERTY OR ITS
PROCEEDS IN OREGON "BY SUCCESSION OR TESTAMENTARY DISPOSITION."  (FN1)
AND SUBSECTION (3) OF THE SAME OREGON STATUTE PROVIDES THAT WHERE THERE
ARE NO NEXT OF KIN EXCEPT INELIGIBLE ALIENS AND THE DECEASED MADE NO
WILL, THE PROPERTY OF THE DECEASED SHALL BE TAKEN BY THE STATE AS
ESCHEATED PROPERTY. 

THE STATE FILED PETITIONS UNDER THIS PROVISION IN AN OREGON CIRCUIT
COURT TO TAKE FOR ITSELF THE PERSONAL PROPERTY OF BOTH DECEDENTS, (FN2)
ALLEGING THAT THERE WERE NO NEXT OF KIN ELIGIBLE TO TAKE UNDER ORE. 
REV.  STAT. SEC. 111.070.  THE ANSWERS FILED BY THE YUGOSLAVIAN
RELATIVES AND THE SAN FRANCISCO CONSUL GENERAL OF THAT COUNTRY (WHO ARE
PETITIONERS HERE) ALLEGED THAT "IN FACT AND IN LAW RECIPROCAL RIGHTS OF
INHERITANCE AS PRESCRIBED BY ORS 111.070 DID EXIST" BETWEEN THE UNITED
STATES AND YUGOSLAVIA WHEN THE DECEDENTS DIED AND THAT THE YUGOSLAVIAN
RELATIVES THEREFORE WERE ELIGIBLE TO TAKE UNDER OREGON LAW.  AFTER
HEARINGS IN WHICH EVIDENCE WAS TAKEN, THE TRIAL COURT FOUND THAT THE
RECIPROCAL RIGHT OF INHERITANCE REQUIRED BY SEC.  111.070(1)(A) DID
EXIST AND THAT, BOTH AT THE TIME THE TWO DECEASED DIED AND AT THE TIME
OF THE TRIAL, THERE EXISTED "RIGHTS OF CITIZENS OF THE UNITED STATES TO
RECEIVE PAYMENT TO THEM WITHIN THE UNITED STATES  ...  OF MONEYS
ORIGINATING FROM THE ESTATES OF PERSONS DYING WITHIN THE COUNTRY OF
YUGOSLAVIA" AS REQUIRED BY SEC. 111.070(1)(B).  THE STATE SUPREME COURT
REVERSED, HOLDING THAT PETITIONERS HAD FAILED TO PROVE "THE ULTIMATE
FACT" THAT THERE EXISTED "AS A MATTER OF LAW AN UNQUALIFIED AND
ENFORCEABLE RIGHT TO RECEIVE AS DEFINED BY ORS 111.070."  (FN3)  IT
FOUND INSTEAD THAT SUCH AN UNQUALIFIED RIGHT DID NOT EXIST BECAUSE THE
LAWS OF YUGOSLAVIA GIVE DISCRETION TO YUGOSLAVIAN AUTHORITIES TO
CONTROL FOREIGN EXCHANGE PAYMENTS IN A WAY THAT MIGHT PREVENT AMERICANS
FROM RECEIVING THE FULL VALUE OF YUGOSLAVIAN INHERITANCES.  IT WAS
ACCORDINGLY HELD THAT OREGON STATE LAW STANDING ALONE BARRED THESE
YUGOSLAVIAN NATIONALS FROM INHERITING THEIR RELATIVES' PERSONAL
PROPERTY IN OREGON. 

THE STATE COURT WENT ON TO SAY THAT THIS HOLDING DISPOSES OF
PETITIONERS' CLAIMS "UNLESS THE AREA OF ALIEN SUCCESSION OVER WHICH THE
STATE OF OREGON SEEKS TO CONTROL THROUGH ORS 111.070, SUPRA, HAS BEEN
PREEMPTED BY SOME TREATY AGREEMENT SUBSISTING BETWEEN YUGOSLAVIA AND
THE UNITED STATES" AT THE TIME OF THE DECEDENTS' DEATH.  ON THIS POINT
THE COURT SAID: 

"WE ARE MINDFUL THAT RIGHTS OF SUCCESSION TO PROPERTY UNDER LOCAL LAW
MAY BE AFFECTED BY AN OVERRIDING FEDERAL POLICY WHEN A TREATY MAKES
DIFFERENT OR CONFLICTING ARRANGEMENTS.  IN SUCH EVENT, THE STATE POLICY
MUST GIVE WAY.  CLARK V. ALLEN, 331 US 503, 517 ...  ."  220 ORE.  448,
462, 349 P.2D 255, 262-263. 

THUS, RECOGNIZING QUITE PROPERLY THAT STATE POLICIES AS TO THE RIGHTS
OF ALIENS TO INHERIT MUST GIVE WAY UNDER OUR CONSTITUTION'S SUPREMACY
CLAUSE TO "OVERRIDING" FEDERAL TREATIES AND CONFLICTING ARRANGEMENTS,
THE STATE COURT CONSIDERED PETITIONERS' CONTENTION, SUPPORTED IN THIS
COURT BY THE GOVERNMENT AS AMICUS CURIAE, THAT PETITIONERS WERE
ENTITLED TO INHERIT THIS PERSONAL PROPERTY BECAUSE OF AN 1881 TREATY
BETWEEN THE UNITED STATES AND SERBIA, WHICH COUNTRY IS NOW A PART OF
YUGOSLAVIA.  THE STATE COURT REJECTED THIS CONTENTION ON THE BASIS OF
ITS INTERPRETATION OF THE TREATY ALTHOUGH IT CORRECTLY RECOGNIZED THAT
THE TREATY IS STILL IN EFFECT BETWEEN THE UNITED STATES AND
YUGOSLAVIA.  (FN4)  THE STATE COURT ALSO REJECTED PETITIONERS'
CONTENTION THAT THEIR CLAIMS COULD NOT BE DEFEATED SOLELY BECAUSE OF
THE POSSIBLE EFFECT OF THE YUGOSLAVIAN FOREIGN EXCHANGE LAWS AND
REGULATIONS SINCE THOSE LAWS AND REGULATIONS ADMITTEDLY MEET THE
REQUIREMENTS OF THE BRETTON WOODS AGREEMENT OF 1945, (FN5) TO WHICH
BOTH YUGOSLAVIA AND THE UNITED STATES ARE SIGNATORIES.  WE GRANTED
CERTIORARI BECAUSE THE CASES INVOLVE IMPORTANT RIGHTS ASSERTED IN
RELIANCE UPON FEDERAL TREATY OBLIGATIONS.  364 U.S. 812. 

FOR REASONS TO BE STATED, WE HOLD THAT THE 1881 TREATY DOES ENTITLE
PETITIONERS TO INHERIT PERSONAL PROPERTY LOCATED IN OREGON ON THE SAME
BASIS AS AMERICAN NEXT OF KIN AND THAT THESE RIGHTS HAVE NOT BEEN TAKEN
AWAY OR IMPAIRED BY THE MONETARY POLICIES OF YUGOSLAVIA EXERCISED IN
ACCORDANCE WITH LATER AGREEMENTS BETWEEN THAT COUNTRY AND THE UNITED
STATES. 

                              I. 

THE PARTS OF THE 1881 TREATY MOST RELEVANT TO OUR PROBLEM ARE SET OUT
BELOW.  (FN6)  THE VERY RESTRICTIVE MEANING GIVEN THE TREATY BY THE
OREGON SUPREME COURT IS BASED CHIEFLY ON ITS INTERPRETATION OF THIS
LANGUAGE: 

"IN ALL THAT CONCERNS THE RIGHT OF ACQUIRING, POSSESSING OR DISPOSING
OF EVERY KIND OF PROPERTY ...  CITIZENS OF THE UNITED STATES IN SERBIA
AND SERBIAN SUBJECTS IN THE UNITED STATES, SHALL ENJOY THE RIGHTS WHICH
THE RESPECTIVE LAWS GRANT  ...  IN EACH OF THESE STATES TO THE SUBJECTS
OF THE MOST FAVORED NATION." 

THIS, THE STATE SUPREME COURT HELD, MEANS THAT THE TREATY CONFERS A
RIGHT UPON A UNITED STATES CITIZEN TO ACQUIRE OR INHERIT PROPERTY IN
SERBIA ONLY IF HE IS "IN SERBIA" AND UPON A YUGOSLAVIAN CITIZEN TO
ACQUIRE PROPERTY IN THE UNITED STATES ONLY IF HE IS "IN THE UNITED
STATES."  THE STATE COURT'S CONCLUSION, THEREFORE, WAS THAT THE
YUGOSLAVIAN COMPLAINANTS, NOT BEING RESIDENTS OF THE UNITED STATES, HAD
NO RIGHT UNDER THE TREATY TO INHERIT FROM THEIR RELATIVES WHO DIED
LEAVING PROPERTY IN OREGON.  THIS IS ONE PLAUSIBLE MEANING OF THE
QUOTED LANGUAGE, BUT IT COULD JUST AS PLAUSIBLY MEAN THAT "IN SERBIA"
ALL CITIZENS OF THE UNITED STATES SHALL ENJOY INHERITANCE RIGHTS AND
"IN THE UNITED STATES" ALL SERBIAN SUBJECTS SHALL ENJOY INHERITANCE
RIGHTS, AND THIS INTERPRETATION WOULD NOT RESTRICT ALMOST TO THE
VANISHING POINT THE AMERICAN AND YUGOSLAVIAN NATIONALS WHO WOULD BE
BENEFITED BY THE CLAUSE.  WE CANNOT ACCEPT THE STATE COURT'S MORE
RESTRICTIVE INTERPRETATION WHEN WE VIEW THE TREATY IN THE LIGHT OF ITS
ENTIRE LANGUAGE AND HISTORY.  THIS COURT HAS MANY TIMES SET ITS FACE
AGAINST TREATY INTERPRETATIONS THAT UNDULY RESTRICT RIGHTS A TREATY IS
ADOPTED TO PROTECT.  (FN7) 

THE 1881 TREATY CLEARLY DECLARES ITS BASIC PURPOSE TO BRING ABOUT
"RECIPROCALLY FULL AND ENTIRE LIBERTY OF COMMERCE AND NAVIGATION"
BETWEEN THE TWO SIGNATORY NATIONS SO THAT THEIR CITIZENS "SHALL BE AT
LIBERTY TO ESTABLISH THEMSELVES FREELY IN EACH OTHER'S TERRITORY." 
THEIR CITIZENS ARE ALSO TO BE FREE TO RECEIVE, HOLD AND DISPOSE OF
PROPERTY BY TRADING, DONATION, MARRIAGE, INHERITANCE OR ANY OTHER
MANNER "UNDER THE SAME CONDITIONS AS THE SUBJECTS OF THE MOST FAVORED
NATION."  THUS, BOTH PARAGRAPHS OF ART. II OF THE TREATY WHICH HAVE
PERTINENCE HERE CONTAIN A "MOST FAVORED NATION" CLAUSE WITH REGARD TO
"ACQUIRING, POSSESSING OR DISPOSING OF EVERY KIND OF PROPERTY."  THIS
CLAUSE MEANS THAT EACH SIGNATORY GRANTS TO THE OTHER THE BROADEST
RIGHTS AND PRIVILEGES WHICH IT ACCORDS TO ANY OTHER NATION IN OTHER
TREATIES IT HAS MADE OR WILL MAKE.  IN THIS CONNECTION WE ARE POINTED
TO A TREATY OF THIS COUNTRY MADE WITH ARGENTINA BEFORE THE 1881 TREATY
WITH SERBIA, (FN8) AND TREATIES OF YUGOSLAVIA WITH POLAND AND
CZECHOSLOVAKIA, (FN9) ALL OF WHICH UNAMBIGUOUSLY PROVIDE FOR THE
BROADEST KIND OF RECIPROCAL RIGHTS OF INHERITANCE FOR NATIONALS OF THE
SIGNATORIES WHICH WOULD PRECISELY PROTECT THE RIGHT OF THESE
YUGOSLAVIAN CLAIMANTS TO INHERIT PROPERTY OF THEIR AMERICAN RELATIVES. 

THE RIGHTS CONFERRED BY THE 1881 TREATY, BROADLY STATED AS THEY ARE,
WOULD FALL FAR SHORT OF WHAT INDIVIDUALS WOULD HOPE OR DESIRE FOR THEIR
COMPLETE FULFILLMENT IF ONE WHO BY WORK AND FRUGALITY HAD ACCUMULATED
PROPERTY AS HIS OWN COULD BE DENIED THE GRATIFICATION OF LEAVING HIS
PROPERTY TO THOSE HE LOVED THE MOST, SIMPLY BECAUSE HIS LOVED ONES WERE
LIVING IN ANOTHER COUNTRY WHERE HE AND THEY WERE BORN.  MOREOVER, IF
THESE RIGHTS OF "ACQUIRING, POSSESSING OR DISPOSING OF EVERY KIND OF
PROPERTY" WERE NOT TO BE AFFORDED TO MERCHANTS AND BUSINESSMEN
CONDUCTING THEIR TRADE FROM THEIR OWN HOMELAND, THE TREATY'S
EFFECTIVENESS IN ACHIEVING ITS EXPRESS PURPOSE OF "FACILITATING  ...
COMMERCIAL RELATIONS" WOULD OBVIOUSLY BE SEVERELY LIMITED.  (FN10)  IT
IS NOT IN SUCH A NIGGARDLY FASHION THAT TREATIES DESIGNED TO PROMOTE
THE FREEST KIND OF TRAFFIC, COMMUNICATIONS AND ASSOCIATIONS AMONG
NATIONS AND THEIR NATIONALS SHOULD BE INTERPRETED, UNLESS SUCH AN
INTERPRETATION IS REQUIRED BY THE MOST COMPELLING NECESSITY.  THERE IS
CERTAINLY NO SUCH COMPULSION IN THE 1881 TREATY'S LANGUAGE OR HISTORY. 

WHILE COURTS INTERPRET TREATIES FOR THEMSELVES, THE MEANING GIVEN
THEM BY THE DEPARTMENTS OF GOVERNMENT PARTICULARLY CHARGED WITH THEIR
NEGOTIATION AND ENFORCEMENT IS GIVEN GREAT WEIGHT.  (FN11)  WE HAVE
BEFORE US STATEMENTS, IN THE FORM OF DIPLOMATIC NOTES EXCHANGED BETWEEN
THE RESPONSIBLE AGENCIES OF THE UNITED STATES AND OF YUGOSLAVIA, TO THE
EFFECT THAT THE 1881 TREATY, NOW AND ALWAYS, HAS BEEN CONSTRUED AS
PROVIDING FOR INHERITANCE BY BOTH COUNTRIES' NATIONALS WITHOUT REGARD
TO THE LOCATION OF THE PROPERTY TO BE PASSED OR THE DOMICILES OF THE
NATIONALS.  AND RELEVANT DIPLOMATIC CORRESPONDENCE AND INSTRUCTIONS
ISSUED BY OUR STATE DEPARTMENT SHOW THAT THE 1881 TREATY WAS ONE OF A
SERIES OF COMMERCIAL AGREEMENTS WHICH WERE NEGOTIATED AND CONCLUDED ON
THE BASIS OF THE MOST EXPANSIVE PRINCIPLES OF RECIPROCITY.  THE
GOVERNMENT'S PURPOSE IN ENTERING INTO THAT SERIES OF TREATIES WAS IN
GENERAL TO PUT THE CITIZENS OF THE UNITED STATES AND CITIZENS OF OTHER
TREATY COUNTRIES ON A PAR WITH REGARD TO TRADING, COMMERCE AND PROPERTY
RIGHTS.  (FN12) 

THE OREGON SUPREME COURT APPARENTLY THOUGHT ITSELF BOUND TO DECIDE
THIS QUESTION OF TREATY CONSTRUCTION AGAINST PETITIONERS BECAUSE OF OUR
DECISION IN CLARK V. ALLEN, 331 U.S. 503.  WE DO NOT AGREE.  IN THAT
CASE WE HELD THAT A 1923 TREATY WITH GERMANY DID NOT CONFER RIGHTS UPON
GERMAN NATIONALS RESIDING IN GERMANY TO INHERIT FROM AMERICAN
CITIZENS.  THE GERMAN TREATY DID CONTAIN SOME LANGUAGE WHICH, WHEN
CONSIDERED IN ISOLATION, COULD BE THOUGHT TO BE SUFFICIENTLY SIMILAR TO
THE CONTROLLING PROVISIONS OF THE 1881 TREATY TO SUGGEST THAT THESE
PARTS OF THE TWO TREATIES SHOULD BE INTERPRETED TO HAVE THE SAME
MEANING.  (FN13)  BUT THE DIFFERENCES BETWEEN THE TWO TREATIES ARE
CRUCIAL.  THE GERMAN TREATY COVERED ONLY DISPOSAL OF PROPERTY; THE 1881
TREATY VERY BROADLY COVERS ACQUISITION OF PROPERTY AS WELL AS
DISPOSAL.  THE TREATY BEFORE US, AS WE HAVE POINTED OUT, CONTAINS THE
HIGHLY SIGNIFICANT "MOST FAVORED NATION" CLAUSE, LONG USED TO BROADEN
THE SCOPE OF RIGHTS PROTECTED BY TREATIES; THE GERMAN TREATY HAD NO
"MOST FAVORED NATION" CLAUSE.  MOREOVER, THE LANGUAGE OF OTHER TREATIES
WHICH WAS ALMOST IDENTICAL WITH THE PERTINENT PROVISION IN THE GERMAN
TREATY HAD PREVIOUSLY BEEN GIVEN A VERY LIMITED CONSTRUCTION BY THIS
COURT, A CONSTRUCTION FROM WHICH WE WERE UNWILLING TO DEPART IN CLARK
V. ALLEN.  FINALLY, THE RELEVANT HISTORY OF THE NEGOTIATIONS FOR, THE
INTERPRETATION OF AND THE PRACTICES UNDER THE 1881 TREATY SUPPORT
PETITIONERS' CLAIMS, BUT NO SUCH SUPPORTING HISTORY WAS BROUGHT TO OUR
ATTENTION WITH RESPECT TO THE GERMAN TREATY. 

WE HOLD THAT UNDER THE 1881 TREATY, WITH ITS "MOST FAVORED NATION"
CLAUSE, THESE YUGOSLAVIAN CLAIMANTS HAVE THE SAME RIGHT TO INHERIT
THEIR RELATIVES' PERSONAL PROPERTY AS THEY WOULD IF THEY WERE AMERICAN
CITIZENS LIVING IN OREGON; BUT, BECAUSE OF THE GROUNDS GIVEN FOR THE
OREGON SUPREME COURT'S HOLDING, WE SHALL BRIEFLY CONSIDER WHETHER THIS
TREATY HAS IN ANY WAY BEEN ABROGATED OR IMPAIRED BY THE MONETARY
FOREIGN EXCHANGE LAWS OF YUGOSLAVIA. 

                         II. 

OREGON LAW, ITS SUPREME COURT HELD, FORBIDS INHERITANCE OF OREGON
PROPERTY BY AN ALIEN LIVING IN A FOREIGN COUNTRY UNLESS THERE CLEARLY
EXISTS "AS A MATTER OF LAW AN UNQUALIFIED AND ENFORCEABLE RIGHT" FOR AN
AMERICAN TO RECEIVE PAYMENT IN THE UNITED STATES OF THE PROCEEDS OF AN
INHERITANCE OF PROPERTY IN THAT FOREIGN COUNTRY.  THE STATE COURT HELD
THAT THE YUGOSLAVIAN FOREIGN EXCHANGE LAWS IN EFFECT IN 1953 LEFT SO
MUCH DISCRETION IN YUGOSLAVIAN AUTHORITIES THAT IT WAS POSSIBLE FOR
THEM TO ISSUE EXCHANGE REGULATIONS WHICH MIGHT IMPAIR PAYMENT OF
LEGACIES OR INHERITANCES ABROAD AND FOR THIS REASON AMERICANS DID NOT
HAVE THE KIND OF "UNQUALIFIED AND ENFORCEABLE RIGHT" TO RECEIVE
YUGOSLAVIAN INHERITANCE FUNDS IN THE UNITED STATES WHICH WOULD JUSTIFY
PERMITTING YUGOSLAVIANS SUCH AS PETITIONERS TO RECEIVE INHERITANCES OF
OREGON PROPERTY UNDER OREGON LAW.  PETITIONERS AND THE UNITED STATES
URGE THAT NO SUCH DOUBT OR UNCERTAINTY IS CREATED BY THE YUGOSLAVIAN
LAW, BUT CONTEND THAT EVEN SO THIS OREGON STATE POLICY MUST GIVE WAY TO
SUPERVENING UNITED STATES-YUGOSLAVIAN ARRANGEMENTS.  WE AGREE WITH
PETITIONERS' LATTER CONTENTION.    THE INTERNATIONAL MONETARY FUND
(BRETTON WOODS) AGREEMENT OF 1945, SUPRA, TO WHICH YUGOSLAVIA AND THE
UNITED STATES ARE SIGNATORIES, COMPREHENSIVELY OBLIGATES PARTICIPATING
COUNTRIES TO MAINTAIN ONLY SUCH MONETARY CONTROLS AS ARE CONSISTENT
WITH THE TERMS OF THAT AGREEMENT.  THE AGREEMENT'S BROAD PURPOSE, AS
SHOWN BY ART. IV, SEC. 4, IS "TO PROMOTE EXCHANGE STABILITY, TO
MAINTAIN ORDERLY EXCHANGE ARRANGEMENTS WITH OTHER MEMBERS, AND TO AVOID
COMPETITIVE EXCHANGE ALTERATIONS."  ARTICLE VI, SEC. 3, FORBIDS ANY
PARTICIPATING COUNTRY FROM EXERCISING CONTROLS OVER INTERNATIONAL
CAPITAL MOVEMENTS "IN A MANNER WHICH WILL RESTRICT PAYMENTS FOR CURRENT
TRANSACTIONS OR WHICH WILL UNDULY DELAY TRANSFERS OF FUNDS IN
SETTLEMENT OF COMMITMENTS  ...  ."  ARTICLE 8 OF THE YUGOSLAVIAN LAWS
REGULATING PAYMENT TRANSACTIONS WITH OTHER COUNTRIES EXPRESSLY
RECOGNIZES THE AUTHORITY OF "THE PROVISIONS OF AGREEMENTS WITH FOREIGN
COUNTRIES WHICH ARE CONCERNED WITH PAYMENTS."  (FN14)  IN ADDITION TO
ALL OF THIS, AN AGREEMENT OF 1948 BETWEEN OUR COUNTRY AND YUGOSLAVIA
(FN15) OBLIGATED YUGOSLAVIA, IN THE WORDS OF THE SENATE REPORT ON THE
AGREEMENT, "TO CONTINUE TO GRANT MOST-FAVORED-NATION TREATMENT TO
AMERICANS IN OWNERSHIP AND ACQUISITION OF ASSETS IN YUGOSLAVIA  ...
AND YUGOSLAVIA IS REQUIRED, BY ARTICLE 10, TO AUTHORIZE PERSONS IN
YUGOSLAVIA TO PAY DEBTS TO UNITED STATES NATIONALS, FIRMS, OR AGENCIES,
AND, SO FAR AS FEASIBLE, TO PERMIT DOLLAR TRANSFERS FOR SUCH PURPOSE." 
(FN16) 

THESE TREATIES AND AGREEMENTS SHOW THAT THIS NATION HAS ADOPTED
PROGRAMS DEEMED DESIRABLE IN BRINGING ABOUT, SO FAR AS CAN BE DONE,
STABILITY AND UNIFORMITY IN THE DIFFICULT FIELD OF WORLD MONETARY
CONTROLS AND EXCHANGE.  THESE ARRANGEMENTS HAVE NOT PURPORTED TO
ACHIEVE A SUFFICIENTLY RIGID VALUATION OF MONEYS TO GUARANTEE THAT
FOREIGN EXCHANGE PAYMENTS WILL AT ALL TIMES, AT ALL PLACES AND UNDER
ALL CIRCUMSTANCES BE BASED ON A "DEFINITELY ASCERTAINABLE" VALUATION
MEASURED BY THE DIVERSE CURRENCIES OF THE WORLD.  DOUBTLESS THESE
AGREEMENTS MAY FALL SHORT OF THAT GOAL.  BUT OUR NATIONAL GOVERNMENT'S
POWERS HAVE BEEN EXERCISED SO FAR AS DEEMED DESIRABLE AND FEASIBLE
TOWARD THAT END, AND THE POWER TO MAKE POLICY WITH REGARD TO SUCH
MATTERS IS A NATIONAL ONE FROM THE COMPULSION OF BOTH NECESSITY AND OUR
CONSTITUTION.  AFTER THE PROPER GOVERNMENTAL AGENCIES HAVE SELECTED THE
POLICY OF FOREIGN EXCHANGE FOR THE COUNTRY AS A WHOLE, OREGON OF COURSE
CANNOT REFUSE TO GIVE FOREIGN NATIONALS THEIR TREATY RIGHTS BECAUSE OF
FEAR THAT VALID INTERNATIONAL AGREEMENTS MIGHT POSSIBLY NOT WORK
COMPLETELY TO THE SATISFACTION OF STATE AUTHORITIES.  OUR NATIONAL
GOVERNMENT'S ASSENT TO THESE INTERNATIONAL AGREEMENTS, COUPLED WITH ITS
CONTINUING ADHERENCE TO THE 1881 TREATY, PRECLUDES ANY STATE FROM
DECIDING THAT YUGOSLAVIAN LAWS MEETING THE STANDARDS OF THOSE
AGREEMENTS CAN BE THE BASIS FOR DEFEATING RIGHTS CONFERRED BY THE 1881
TREATY. 

THE JUDGMENT OF THE SUPREME COURT OF OREGON IS REVERSED AND THE CAUSE
REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED
AND REMANDED. 

FN1  "(1)  THE RIGHT OF AN ALIEN NOT RESIDING WITHIN THE UNITED
STATES OR ITS TERRITORIES TO TAKE EITHER REAL OR PERSONAL PROPERTY OR
THE PROCEEDS THEREOF IN THIS STATE BY SUCCESSION OR TESTAMENTARY
DISPOSITION, UPON THE SAME TERMS AND CONDITIONS AS INHABITANTS AND
CITIZENS OF THE UNITED STATES, IS DEPENDENT IN EACH CASE: 

"(A)  UPON THE EXISTENCE OF A RECIPROCAL RIGHT UPON THE PART OF
CITIZENS OF THE UNITED STATES TO TAKE REAL AND PERSONAL PROPERTY AND
THE PROCEEDS THEREOF UPON THE SAME TERMS AND CONDITIONS AS INHABITANTS
AND CITIZENS OF THE COUNTRY OF WHICH SUCH ALIEN IS AN INHABITANT OR
CITIZEN: 

"(B)  UPON THE RIGHTS OF CITIZENS OF THE UNITED STATES TO RECEIVE BY
PAYMENT TO THEM WITHIN THE UNITED STATES OR ITS TERRITORIES MONEY
ORIGINATING FROM THE ESTATES OF PERSONS DYING WITHIN SUCH FOREIGN
COUNTRY; AND: 

"(C)  UPON PROOF THAT SUCH FOREIGN HEIRS, DISTRIBUTEES, DEVISEES OR
LEGATEES MAY RECEIVE THE BENEFIT, USE OR CONTROL OF MONEY OR PROPERTY
FROM ESTATES OF PERSONS DYING IN THIS STATE WITHOUT CONFISCATION, IN
WHOLE OR IN PART, BY THE GOVERNMENTS OF SUCH FOREIGN COUNTRIES. 

"(2)  THE BURDEN IS UPON SUCH NONRESIDENT ALIEN TO ESTABLISH THE FACT
OF EXISTENCE OF THE RECIPROCAL RIGHTS SET FORTH IN SUBSECTION (1) OF
THIS SECTION." 

FN2  THE CIRCUIT COURT CONSOLIDATED THE TWO CASES AND THEY HAVE BEEN
TREATED AS ONE SINCE. 

FN3  220 ORE.  448, 461, 349 P.2D 255, 262. 

FN4  THE TREATY IS REPORTED AT 22 STAT. 963.  OFFICIAL RECOGNITION
THAT IT IS STILL IN EFFECT CAN BE FOUND IN THE SETTLEMENT OF PECUNIARY
CLAIMS AGAINST YUGOSLAVIA AGREEMENT BETWEEN THE UNITED STATES AND
YUGOSLAVIA OF JULY 19, 1948, 62 STAT. 2658, T.I.A.S. 1803, ART. 5. 

FN5  60 STAT. 1401, T.I.A.S. 1501. 

FN6  "THE UNITED STATES OF AMERICA AND HIS HIGHNESS THE PRINCE OF
SERBIA, ANIMATED BY THE DESIRE OF FACILITATING AND DEVELOPING THE
COMMERCIAL RELATIONS ESTABLISHED BETWEEN THE TWO COUNTRIES, HAVE
DETERMINED WITH THIS OBJECT TO CONCLUDE A TREATY  ...  .

"ARTICLE I. 

"THERE SHALL BE RECIPROCALLY FULL AND ENTIRE LIBERTY OF COMMERCE AND
NAVIGATION BETWEEN THE CITIZENS AND SUBJECTS OF THE TWO HIGH
CONTRACTING POWERS, WHO SHALL BE AT LIBERTY TO ESTABLISH THEMSELVES
FREELY IN EACH OTHER'S TERRITORY. 

     *         *         *         *         *

                              "ARTICLE II. 

"IN ALL THAT CONCERNS THE RIGHT OF ACQUIRING, POSSESSING OR DISPOSING
OF EVERY KIND OF PROPERTY, REAL OR PERSONAL, CITIZENS OF THE UNITED
STATES IN SERBIA AND SERBIAN SUBJECTS IN THE UNITED STATES, SHALL ENJOY
THE RIGHTS WHICH THE RESPECTIVE LAWS GRANT OR SHALL GRANT IN EACH OF
THESE STATES TO THE SUBJECTS OF THE MOST FAVORED NATION. 

"WITHIN THESE LIMITS, AND UNDER THE SAME CONDITIONS AS THE SUBJECTS
OF THE MOST FAVORED NATION, THEY SHALL BE AT LIBERTY TO ACQUIRE AND
DISPOSE OF SUCH PROPERTY, WHETHER BY PURCHASE, SALE, DONATION,
EXCHANGE, MARRIAGE CONTRACT, TESTAMENT, INHERITANCE, OR IN ANY OTHER
MANNER WHATEVER, WITHOUT BEING SUBJECT TO ANY TAXES, IMPOSTS OR CHARGES
WHATEVER, OTHER OR HIGHER THAN THOSE WHICH ARE OR SHALL BE LEVIED ON
NATIVES OR ON THE SUBJECTS OF THE MOST FAVORED STATE. 

"THEY SHALL LIKEWISE BE AT LIBERTY TO EXPORT FREELY THE PROCEEDS OF
THE SALE OF THEIR PROPERTY, AND THEIR GOODS IN GENERAL, WITHOUT BEING
SUBJECTED TO PAY ANY OTHER OR HIGHER DUTIES THAN THOSE PAYABLE UNDER
SIMILAR CIRCUMSTANCES BY NATIVES OR BY THE SUBJECTS OF THE MOST FAVORED
STATE." 

FN7  SEE, E.G., BACARDI CORP. V. DOMENECH, 311 U.S. 150, 163; JORDAN
V. TASHIRO, 278 U.S. 123, 128-129. 

FN8  TREATY OF FRIENDSHIP, COMMERCE, AND NAVIGATION, BETWEEN THE
UNITED STATES AND THE ARGENTINE CONFEDERATION OF 1853, 10 STAT. 1005,
1009, I MALLOY 20.  ARTICLE IX OF THIS TREATY PROVIDES: "IN WHATEVER
RELATES TO  ...  ACQUIRING AND DISPOSING OF PROPERTY OF EVERY SORT AND
DENOMINATION, EITHER BY SALE, DONATION, EXCHANGE, TESTAMENT, OR IN ANY
OTHER MANNER WHATSOEVER,  ...  THE CITIZENS OF THE TWO CONTRACTING
PARTIES SHALL RECIPROCALLY ENJOY THE SAME PRIVILEGES, LIBERTIES, AND
RIGHTS, AS NATIVE CITIZENS  ...  ." 

FN9  YUGOSLAV-POLISH TREATY, 30 LEAGUE OF NATIONS TREATY SERIES 185;
YUGOSLAV-CZECHOSLOVAKIAN TREATY, 85 LEAGUE OF NATIONS TREATY SERIES
455. 

FN10  BESIDES THE OBVIOUS RELEVANCE OF ART. II OF THE TREATY EVEN
WHEN CONSIDERED ALONE, ART. III SPECIFICALLY CONTEMPLATES THE
INTERCHANGE OF "MERCHANTS, MANUFACTURERS AND TRADES PEOPLE" OR "THEIR
CLERKS AND AGENTS." 

FN11  SEE, E.G., FACTOR V. LAUBENHEIMER, 290 U.S. 276, 294-295. 

FN12  SEE, E.G., REPORT ON NEGOTIATIONS DATED NOV. 30, 1850, PRINTED
AS SENATE CONFIDENTIAL DOCUMENT NO. 1, 31ST CONG., 2D SESS., 5 MILLER,
TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES 861; D.S.,
15 INSTRUCTIONS, ARGENTINA, 19-26, 6 MILLER, SUPRA, 219. 

FN13  THE LANGUAGE RELIED UPON BY THE OREGON SUPREME COURT WAS:
"NATIONALS OF EITHER HIGH CONTRACTING PARTY MAY HAVE FULL POWER TO
DISPOSE OF THEIR PERSONAL PROPERTY OF EVERY KIND WITHIN THE TERRITORIES
OF THE OTHER  ...  ." 

FN14  LAW TO REGULATE PAYMENTS TO AND FROM FOREIGN COUNTRIES, FOREIGN
EXCHANGE LAW, OFFICIAL GAZETTE OF THE FEDERAL PEOPLE'S REPUBLIC OF
YUGOSLAVIA, OCT. 25, 1946, BELGRADE, NO. 86, YEAR II. 

FN15  SEE NOTE 4, SUPRA. 

FN16  S. REP. NO. 800, 81ST CONG., 1ST SESS., P. 4. 
..END :







ALASKA V. ARCTIC MAID 366 U.S. 199 


NO. 106.  ARGUED MARCH 23, 1961 - DECIDED MAY 1, 1961 - 277 F.2D 120,
REVERSED. 


RESPONDENTS USE FREEZER SHIPS FOR THE TAKING AND PRESERVATION OF
SALMON ALONG ALASKA'S SHORES.  THE SALMON ARE CAUGHT IN THE WATERS OFF
THE COAST OF ALASKA BY BOATS WHICH RESPONDENTS OWN OR HAVE UNDER
CONTRACT AND BY INDEPENDENT FISHERMEN WHO SELL SALMON TO RESPONDENTS. 
THE SALMON ARE FROZEN WHEN RECEIVED ABOARD THE FREEZER SHIPS, AND
EVENTUALLY THEY ARE TAKEN TO THE STATE OF WASHINGTON, WHERE THEY ARE
CANNED.  ON THE BUSINESS OF OPERATING SUCH FREEZER SHIPS, ALASKA LEVIES
A TAX OF 4% OF THE VALUE OF THE SALMON.  HELD: 

1.  AS APPLIED TO SALMON TAKEN IN ALASKA'S TERRITORIAL WATERS, THE
TAX IS NOT INVALID AS A BURDEN ON INTERSTATE COMMERCE IN VIOLATION OF
ART. I, SEC. 8 OF THE CONSTITUTION.  PP. 199-204. 

2.  THOUGH THIS TAX DOES NOT APPLY TO SALMON CAUGHT AND FROZEN FOR
CANNING IN ALASKA, IT IS NOT INVALID AS DISCRIMINATORY, SINCE ALASKAN
CANNERIES PAY A 6% TAX ON THE VALUE OF SALMON OBTAINED FOR CANNING. 
PP. 204-205. 

ALASKA V. ARTIC MAID ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WHILE ALASKA WAS A TERRITORY, THE TERRITORIAL LEGISLATURE AMENDED L.
1951, C. 116, ITS TAXING STATUTES, TO READ, IN RELEVANT PART, AS
FOLLOWS: 

"SECTION 1.  BUSINESSES IN ALASKA FISHERIES REQUIRING LICENSES:
AMOUNTS THEREOF.  ANY PERSON, FIRM OR CORPORATION PROSECUTING OR
ATTEMPTING TO PROSECUTE ANY OF THE FOLLOWING LINES OF BUSINESS IN
CONNECTION WITH ALASKA'S COMMERCIAL FISHERIES SHALL FIRST APPLY FOR AND
OBTAIN, ON THE CONDITIONS HEREINAFTER SET FORTH, A LICENSE SO TO DO ON
THE BASIS OF THE FOLLOWING LICENSE TAXES WHICH ARE HEREBY LEVIED: 

     *         *         *      *         * 

"(B)  FREEZER SHIPS AND OTHER FLOATING COLD STORAGES:  AN ANNUAL
LICENSE TAX EQUAL TO 4% OF THE VALUE OF THE RAW HALIBUT, HALIBUT LIVERS
AND VISCERA, SALMON AND BOTTOM FISH, SHELLFISH OR OTHER FISHING
RESOURCE BOUGHT OR OTHERWISE OBTAINED FOR PROCESSING THROUGH FREEZING. 
THE VALUE OF THE RAW MATERIAL UNDER THIS LICENSE SHALL BE THE ACTUAL
PRICE PAID FOR SAME INCLUDING INDIRECT CONSIDERATIONS SUCH AS FUEL OR
SUPPLIES FURNISHED BY THE PROCESSOR OR OFFSETS TO THE CASH VALUE FOR
GEAR FURNISHED ETC.  SUCH VALUE SHALL APPLY TO THE RAW MATERIAL HEREIN
MENTIONED WHICH IS PROCURED IN COMPANY OWNED OR SUBSIDIZED BOATS
OPERATED BY EMPLOYEES OF THE PROCESSOR OR UNDER LEASE OR OTHER
ARRANGEMENT." 

RESPONDENTS (FN1) USE FREEZER SHIPS FOR THE TAKING AND PRESERVATION
OF SALMON ALONG ALASKA'S SHORES.  THESE FREEZER SHIPS USE "CATCHER
BOATS" WHICH RESPONDENTS OWN OR HAVE UNDER CONTRACT AND WHICH CATCH
SALMON OFF ALASKA.  THE FREEZER SHIPS SOMETIMES PURCHASE SALMON FROM
INDEPENDENT FISHERMEN. 

BRISTOL BAY IS A FAMOUS FISHING GROUND FOR SALMON.  WHEN OPERATING IN
THE BRISTOL BAY AREA, THE FREEZER SHIPS ANCHOR MORE THAN THREE MILES
FROM THE COAST, BECAUSE OF THE SHALLOW WATERS IN BRISTOL BAY.  THEY
SERVE AS A BASE FOR THEIR CATCHER BOATS THAT FISH WITHIN THE
TERRITORIAL WATERS.  IN OTHER AREAS BOTH THE FREEZER SHIPS AND THE
CATCHER BOATS STAY WITHIN THE TERRITORIAL WATERS. 

WHEN THE CATCHER BOATS - WHICH ARE SHALLOW-DRAFT AND KNOWN AS
GILLNETTERS - HAVE A LOAD OR DESIRE TO DISCONTINUE FISHING OR WHEN THE
OPEN SEASON ENDS, THEY RETURN TO THE "MOTHER" SHIP AND UNLOAD.  THE
SALMON ARE USUALLY DUMPED INTO QUICK-FREEZING BRINE TANKS.  AT OTHER
TIMES THEY ARE PLACED IN FREEZING COMPARTMENTS AND FROZEN BY BLASTS OF
AIR.  THE FREEZER SHIPS EVENTUALLY RETURN TO PUGET SOUND IN THE STATE
OF WASHINGTON WHERE THE SALMON ARE CANNED. 

ALASKA, WHEN A TERRITORY, BROUGHT THESE SUITS IN THE DISTRICT COURT
OF ALASKA FOR TAXES CLAIMED TO BE DUE AND OWING UNDER THE FOREGOING
ACT.  THE DISTRICT COURT ENTERED JUDGMENTS FOR THE PLAINTIFF.  140 F.
SUPP. 190.  IT HELD THAT THE TAKING OF THE FISH WAS THE TAXABLE EVENT,
NOT THE FREEZING OF THE FISH. 

ON APPEAL THE COURT OF APPEALS HELD THAT RESPONDENTS WERE TAXABLE FOR
FISH CAUGHT BY THEIR CATCHER BOATS WITHIN TERRITORIAL WATERS, EVEN
THOUGH THE FREEZER SHIPS REMAINED OUTSIDE THE THREE-MILE LIMIT.  IN ITS
VIEW THE CATCHER BOATS "OPERATED BY THE FREEZER SHIP ITSELF ARE BUT AN
EXTENSION OF THAT SHIP'S OPERATIONS."  IT HELD, HOWEVER, THAT
RESPONDENTS WERE NOT RESPONSIBLE FOR TAXES ON FISH TAKEN "BY
INDEPENDENT CATCHER BOATS BUT PURCHASED BY THE FREEZER SHIPS" OUTSIDE
TERRITORIAL WATERS.  THERE WAS A REHEARING EN BANC AND ON THE REHEARING
THE COURT OF APPEALS HELD THAT THE TAX INCIDENT WAS NOT TAKING FISH BUT
"THE FREEZING AND COLD STORAGE OF FISH ABOARD FREEZER SHIPS."  IT HELD
THAT THE TAX COULD NOT BE LEVIED EVEN IF THE FREEZER SHIPS RECEIVED THE
SALMON IN TERRITORIAL WATERS.  IT REASONED THAT THE FREEZING AND
STORAGE OF THE FISH WAS AN INSEPARABLE PART OF INTERSTATE COMMERCE AND
COULD NOT BE TAXED LOCALLY ANY MORE THAN THE LOADING AND UNLOADING OF
INTERSTATE CARRIERS.  CF. JOSEPH V. CARTER & WEEKES CO., 330 U.S. 422;
RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69.  ACCORDINGLY IT
REVERSED THE DISTRICT COURT.  277 F.2D 120.  THE CASE IS HERE ON A
PETITION FOR CERTIORARI WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF
THE RULING TO THE NEW STATE OF ALASKA.  364 U.S. 811. 

WE PUT TO ONE SIDE THE SPECIALIZED CASES SUCH AS RICHFIELD OIL CORP.
V. STATE BOARD, SUPRA, WHICH ARISE UNDER THE EXPORT-IMPORT CLAUSE OF
THE CONSTITUTION (ART. I. SEC. 10, CL. 2), BECAUSE NONE OF THE SALMON
INVOLVED IN THESE CASES WAS DESTINED TO A FOREIGN COUNTRY.  WE ALSO
CONSIDER IRRELEVANT CASES SUCH AS JOSEPH V. CARTER & WEEKES CO., SUPRA,
WHERE A STATE TAX WAS LAID ON THE GROSS RECEIPTS OF A STEVEDORE WHO WAS
LOADING AND UNLOADING VESSELS ENGAGED IN INTERSTATE COMMERCE.  A TAX ON
AN INTEGRAL PART OF AN INTERSTATE MOVEMENT MIGHT BE IMPOSED BY OTHER
STATES "WITH THE NET EFFECT OF PREJUDICING OR UNDULY BURDENING
COMMERCE" AS THE COURT SAID IN MICHIGAN-WISCONSIN PIPE LINE CO. V.
CALVERT, 347 U.S. 157, 166. 

WE HAVE NO SUCH PROBLEM HERE.  THIS TAX IS ONE IMPOSED ON THOSE
"PROSECUTING OR ATTEMPTING TO PROSECUTE  ...  LINES OF BUSINESS IN
CONNECTION WITH ALASKA'S COMMERCIAL FISHERIES."  THE BUSINESS IN
QUESTION IS THE ONE SPECIFIED IN SUBSECTION (B):  "FREEZER SHIPS AND
OTHER FLOATING COLD STORAGES."  TO BE SURE, THE TAX IS COMPUTED ON THE
"VALUE" OF THE FISH "BOUGHT OR OTHERWISE OBTAINED FOR PROCESSING
THROUGH FREEZING."  THAT, HOWEVER, IS THE MEASURE OF THE TAX, NOT THE
TAXABLE EVENT.  THE TAXABLE EVENT IS "PROSECUTING" THE "BUSINESS" OF
"FREEZER SHIPS AND OTHER FLOATING COLD STORAGES."  PART OF THE BUSINESS
IS, OF COURSE, TRANSPORTING FROZEN FISH INTERSTATE.  YET IT IS PLAIN
THAT A FREEZER SHIP IS MORE - MUCH MORE - THAN AN INTERSTATE CARRIER. 
PART OF ITS BUSINESS IS FREEZING FISH.  YET THESE SHIPS DO MORE THAN
FREEZE FISH AND TRANSPORT THEM INTERSTATE.  TAKING THE FISH DIRECTLY
THROUGH THEIR OWN CATCHER BOATS OR OBTAINING THEM FROM OTHER FISHERMEN
IS ALSO A PART OF RESPONDENTS' BUSINESS.  WITHOUT THE TAKING OR
OBTAINING OF THE FISH, THE FREEZER SHIP WOULD HAVE NO FUNCTION TO
PERFORM. 

IT IS CLEAR THAT ALASKA HAS POWER TO REGULATE AND CONTROL ACTIVITY
WITHIN HER TERRITORIAL WATERS, AT LEAST IN THE ABSENCE OF CONFLICTING
FEDERAL LEGISLATION.  SKIRIOTES V. FLORIDA, 313 U.S. 69, 75.  THAT CASE
INVOLVED A STATE LAW FORBIDDING THE USE OF CERTAIN EQUIPMENT IN TAKING
SPONGES IN WATERS TWO MARINE LEAGUES FROM MEAN LOW TIDE OFF FLORIDA'S
COAST.  WE UPHELD FLORIDA'S POWER TO REGULATE SPONGE FISHING IN THAT
MANNER AND IN THAT AREA, AS CONGRESS HAD NOT ADOPTED ANY INCONSISTENT
REGULATION.  SEE ALSO TOOMER V. WITSELL, 334 U.S. 385, 393.  ALASKA'S
JURISDICTION TO TAX RESPONDENTS' OPERATIONS WITHIN HER TERRITORIAL
WATERS - WHETHER THOSE ACTIVITIES ARE TAKING FISH OR PURCHASING FISH
TAKEN BY OTHERS - IS EQUALLY CLEAR.  SEE WISCONSIN V. PENNEY CO., 311
U.S. 435, 444; OTT V. MISSISSIPPI BARGE LINE, 336 U.S. 169, 174. 

IF THE FISH WERE TAKEN OR PURCHASED OUTSIDE ALASKA'S TERRITORIAL
WATERS, ALL OF RESPONDENTS' BUSINESS IN THE BRISTOL BAY AREA WOULD BE
BEYOND ALASKA'S REACH.  BUT SINCE SOME OF THE FISH IN ALL OF THE CASES
BEFORE US WERE TAKEN IN ALASKA'S WATERS OR OTHERWISE ACQUIRED THERE,
RESPONDENTS ARE ENGAGED IN BUSINESS IN ALASKA WHEN THEY OPERATE THEIR
"FREEZER SHIPS."  FOR WE KNOW FROM THIS RECORD THAT IN THIS PARTICULAR
BUSINESS TAKING AND FREEZING ARE PRACTICALLY INSEPARABLE.  FISH ARE
HIGHLY PERISHABLE AND CANNOT BE KEPT FRESH VERY LONG EVEN IN ALASKA'S
LATITUDE.  THE PROCESS OF GATHERING FISH EITHER THROUGH THE CATCHER
BOATS THAT ARE PART OF RESPONDENTS' FLEET OR THROUGH INDEPENDENT
OPERATORS IS A "LOCAL ACTIVITY" (MICHIGAN-WISCONSIN PIPE LINE CO. V.
CALVERT, SUPRA, 166) IN A VIVID SENSE OF THE TERM.  WE SEE NO REASON
WHY OUR CASES INVOLVING THE TAKING OF SHRIMP (TOOMER V. WITSELL, SUPRA)
AND THE EXTRACTION OF ORE (OLIVER IRON MINING CO. V. LORD, 262 U.S.
172) ARE NOT DISPOSITIVE OF THIS CONTROVERSY.  THE OLIVER IRON CASE IS
INDEED A FIRST COUSIN OF THE PRESENT CASE.   HERE, AS THERE, THE TAX IS
AN OCCUPATION TAX.  HERE, AS THERE, THE MARKET FOR THE PRODUCT OBTAINED
LOCALLY IS INTERSTATE, THE TAKING BEING A STEP IN A PROCESS LEADING TO
AN INTERSTATE MARKET.  IN BOTH THE LOCAL PRODUCT IS PROMPTLY LOADED FOR
INTERSTATE SHIPMENT.  BUT IN EACH THERE IS A PRELIMINARY LOCAL BUSINESS
BEING CONDUCTED - AN OCCUPATION MADE UP OF A SERIES OF LOCAL ACTIVITIES
WHICH THE STATE CAN CONSTITUTIONALLY REACH.  CATCHING THE FISH OR
OBTAINING THEM IN OTHER WAYS FROM THE LOCAL MARKET IS BUT AN EXTENSION
OF THE FREEZER SHIP'S OPERATIONS WITHIN ALASKA'S WATERS. 

IT IS CLAIMED THAT THERE WAS NO TAX ON SALMON CAUGHT AND FROZEN IN
ALASKA AND DESTINED FOR CANNING IN ALASKA AND THAT THEREFORE THIS LAW
IS DISCRIMINATORY AGAINST FREEZER SHIPS.  ALASKAN CANNERIES, HOWEVER,
PAID A SIX-PERCENT TAX ON THE VALUE OF SALMON OBTAINED FOR CANNING;
(FN2) AND LOCAL FISH PROCESSORS, WHICH SELL TO THE FRESH-FROZEN
CONSUMER MARKET, PAID A ONE-PERCENT TAX.  (FN3)  THE FREEZER SHIPS DO
NOT COMPETE WITH THOSE WHO FREEZE FISH FOR THE RETAIL MARKET.  THE
FREEZER SHIPS TAKE THEIR CATCHES SOUTH FOR CANNING.  THEIR COMPETITORS
ARE THE ALASKAN CANNERS; AND WE KNOW FROM THE RECORD THAT FISH CANNED
LOCALLY USUALLY ARE NOT FROZEN.  (FN4)  WHEN WE LOOK AT THE TAX LAID ON
LOCAL CANNERS AND THOSE LAID ON "FREEZER SHIPS," THERE IS NO
DISCRIMINATION IN FAVOR OF THE FORMER AND AGAINST THE LATTER.  FOR NO
MATTER HOW THE TAX ON "FREEZER SHIPS" IS COMPUTED, IT DID NOT EXCEED
THE SIX-PERCENT TAX ON THE LOCAL CANNERS.  HENCE CASES SUCH AS
PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553, 595-596, WHICH HOLD
INVALID STATE LAWS THAT PREFER LOCAL SALES OVER INTERSTATE SALES, ARE
INAPPOSITE.  IF THERE IS A DIFFERENCE BETWEEN  HE TAXES IMPOSED ON
THESE FREEZER SHIPS AND THE TAXES IMPOSED ON THEIR COMPETITORS, THEY
ARE NOT SO "PALPABLY DISPROPORTIONATE" (HARVESTER CO. V. EVATT, 329
U.S. 416, 422) AS TO RUN AFOUL OF THE COMMERCE CLAUSE.  NO "IRON RULE
OF EQUALITY" BETWEEN TAXES LAID BY A STATE ON DIFFERENT TYPES OF
BUSINESS IS NECESSARY.  CASKEY BAKING CO. V. VIRGINIA, 313 U.S. 117,
119-121; MORF V. BINGAMAN, 298 U.S. 407, 414; CAPITOL GREYHOUND LINES
V. BRICE, 339 U.S. 542, 546-547. 

THE JUDGMENT IS REVERSED.  SINCE WE DO NOT KNOW HOW MANY FISH, IF
ANY, WERE OBTAINED OUTSIDE ALASKA'S TERRITORIAL WATERS, (FN5) WE REMAND
THE CAUSE TO THE COURT OF APPEALS FOR PROCEEDINGS IN CONFORMITY WITH
THIS OPINION.  REVERSED. 

FN1  ONE OF THE RESPONDENTS IS A WASHINGTON CORPORATION.  FOUR
REMAINING RESPONDENTS ARE PARTNERSHIPS ALL OF WHOSE MEMBERS ARE
CITIZENS OF THE UNITED STATES AND RESIDENTS OF EITHER CALIFORNIA OR
WASHINGTON.  THE PACIFIC REEFER CO. IS THE OWNER OF THE SHIP REEFER II,
AS TO WHICH A TAX LIEN IS ASSERTED TO EXIST BY VIRTUE OF THE ACTIVITIES
OF A PREVIOUS OWNER.  IT TOO IS A FOREIGN CORPORATION. 

FN2  L. 1949, C. 82, SEC. 1(A), AS AMENDED, L. 1951, C. 113, SEC. 1. 

FN3  L. 1949, C. 97, SEC. 1(A), AS AMENDED, L. 1951, C. 116, SEC. 1. 

FN4  FISH ARE SOMETIMES FROZEN FOR LOCAL CANNERIES WHEN THE RUN IS
MORE THAN THE CANNERIES CAN TAKE CARE OF; BUT THAT FREEZING IS MERELY
AN ADJUNCT OF THE LOCAL CANNING INDUSTRY. 

FN5  ALASKA CONTENDS THAT ITS TERRITORIAL WATERS IN THE BRISTOL BAY
AREA REACH BEYOND THE USUAL THREE-MILE LIMIT.  THAT IS A CLAIM ON THE
MERITS OF WHICH WE EXPRESS NO OPINION. 

MR. JUSTICE HARLAN, DISSENTING. 

IT IS WITH RELUCTANCE THAT I HAVE REACHED THE CONCLUSION THAT THIS
ALASKA TAX OFFENDS THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION. 
(ART. I, SEC. 8, CL. 3.) 

THE COURT OF APPEALS CONCLUDED THAT THE TAXABLE EVENT UNDER THIS
STATUTE IS THE PROCESS OF FREEZING FISH ABOARD SHIP.  277 F.2D 120. 
THIS CONCLUSION WAS BASED ON THE WORDS OF THE STATUTE (QUOTED AT PP.
199-200 OF THE COURT'S OPINION), THE FACT THAT OBTAINING FISH FOR LOCAL
SALE OR CONSUMPTION IS UNTAXED, AND THE FACT THAT THE PRESENT TAX
"APPLIES WHETHER OR NOT THE FISH ARE CAUGHT BY GILLNETTERS OWNED BY OR
UNDER CONTRACT TO APPELLANTS."  ID., 125-126.  ACCEPTING, AS I DO, THIS
CONSTRUCTION OF THE STATUTE, I AGREE WITH THE COURT OF APPEALS THAT A
PRIVILEGE TAX DIRECTED SOLELY AT SHIPBOARD FREEZING, PREPARATORY TO
INTERSTATE SHIPMENT, EXCEEDS THE LIMITATIONS THE COMMERCE CLAUSE
IMPOSES UPON THE STATES, FOR IN ITS REQUIREMENT OF A LICENSE SUCH A TAX
ASSERTS A POWER TO DENY WHAT IS A NECESSARY LOCAL INCIDENT OF THE RIGHT
TO MAKE INTERSTATE PURCHASES.  SEE YORK MANUFACTURING CO. V. COLLEY,
247 U.S. 21.* 

*I ALSO REGARD THE TAX AS INVALID BECAUSE IT IN EFFECT CHARGES A TOLL
FOR THE INTERSTATE TRANSPORTATION OF ALASKA'S NATURAL RESOURCES.  SEE
BROWN, THE OPEN ECONOMY:  JUSTICE FRANKFURTER AND THE POSITION OF THE
JUDICIARY, 67 YALE L.J. 219, 232-233. 

AS I UNDERSTAND THE COURT'S OPINION, IT SEEKS TO MEET THIS OBJECTION
BY DENYING THAT THE ALASKAN TAX IS IMPOSED ON THE PRIVILEGE OF FREEZING
FISH ABOARD SHIPS.  IT SAYS THAT THE TAX IS RATHER UPON THE LOCAL
TAKING OR PURCHASE OF FISH BY OR FOR FREEZER BOATS.  BUT EVEN ON THIS
VIEW OF THE INCIDENCE OF THE TAX, I COULD NOT AGREE THAT THE PRESENT
TAX ON OBTAINING FISH BY OR FOR INTERSTATE FREEZER BOATS WOULD BE
CONSTITUTIONAL IN THE GIVEN CIRCUMSTANCES, FOR I DO NOT THINK THAT
ALASKA CAN PLACE A HIGHER TAX ON THE OBTAINING AND FREEZING OF FISH FOR
INTERSTATE MARKETS THAN IT PLACES ON THE OBTAINING AND FREEZING OF FISH
FOR LOCAL MARKETS.  SEE PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553,
596, 597.  AS SHOWN IN THE COURT'S OPINION, UNDER THE ALASKA SCHEME OF
TAXATION FREEZER BOATS, WHICH OPERATE SOLELY IN INTERSTATE COMMERCE,
MUST PAY A TAX FOR TAKING AND FREEZING ALASKAN FISH FOR LATER CANNING
IN WASHINGTON WHICH IS FOUR TIMES THAT IMPOSED ON A LOCAL FREEZER WHOSE
PRODUCT IS SOLD TO CONSUMERS IN ALASKA.  A SHORE-BASED FREEZER WHO
SELLS HIS FROZEN PRODUCT TO ALASKAN CANNERS PAYS NO TAX AT ALL.    FOR
THESE REASONS I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :









ATCHLEY V. CALIFORNIA 366 U.S. 207 


NO. 95.  ARGUED APRIL 25, 1961 - DECIDED MAY 1, 1961 - CERTIORARI
DISMISSED AS NOT WARRANTED ON RECORD.  - REPORTED BELOW:  53 CAL. 2D
160, 346 P.2D 764. 


ATCHLEY V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

AFTER HEARING ORAL ARGUMENT AND FULLY EXAMINING THE RECORD, WE
CONCLUDE THAT THE TOTALITY OF CIRCUMSTANCES AS THE RECORD MAKES THEM
MANIFEST DID NOT WARRANT BRINGING THE CASE HERE.  ACCORDINGLY, THE WRIT
IS DISMISSED. 
..END :














ANDERSON V. ALABAMA 366 U.S. 208 


NO. 326.  ARGUED APRIL 25-26, 1961 - DECIDED MAY 1, 1961 - 270 ALA. 575,
120 SO. 2D, 414, REVERSED. 


ANDERSON V. ALABAMA. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  PIERRE V. LOUISIANA, 306 U.S. 354; CASSELL
V. TEXAS, 339 U.S. 282; HERNANDEZ V. TEXAS, 347 U.S. 475. 
..END :

















CHAIFETZ V. UNITED STATES 366 U.S. 209 


NO. 695.  DECIDED MAY 1, 1961 - CERTIORARI GRANTED AND JUDGMENT REVERSED
ONLY AS TO COUNT IV OF THE INDICTMENT.  - REPORTED BELOW:  109 U.S.
APP. D.C. 349, 288 F.2D 133. 


CHAIFETZ V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE ENTIRE RECORD AND THE SUGGESTION OF THE
SOLICITOR GENERAL, THE PETITION FOR WRIT OF CERTIORARI IS GRANTED
LIMITED TO THAT PART OF THE JUDGMENT CONCERNED WITH COUNT IV OF THE
INDICTMENT AND THAT PART OF THE JUDGMENT IS REVERSED AND THE CAUSE
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO VACATE THE CONVICTION
ON THAT COUNT.  IN ALL OTHER RESPECTS THE PETITION FOR WRIT OF
CERTIORARI IS DENIED. 
..END :










SMITH V. SMITH 366 U.S. 210 


NO. 802.  DECIDED MAY 1, 1961 - APPEAL DISMISSED SINCE THE JUDGMENT
BELOW IS BASED ON A NONFEDERAL GROUND ADEQUATE TO SUPPORT IT.


SMITH V. SMITH. 

APPEAL FROM THE CIRCUIT COURT OF RALEIGH COUNTY, WEST VIRGINIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR THE
REASON THAT THE JUDGMENT OF THE CIRCUIT COURT OF RALEIGH COUNTY, STATE
OF WEST VIRGINIA, SOUGHT HERE TO BE REVIEWED, IS BASED UPON A
NONFEDERAL GROUND ADEQUATE TO SUPPORT IT.
..END :















STEWART V. UNITED STATES 366 U.S. 1 


NO. 143.  ARGUED FEBRUARY 21, 1961 - DECIDED APRIL 24, 1961 - 107 U.S.
APP. D.C. 159, 275 F.2D 617, REVERSED. 


PETITIONER WAS TRIED THREE TIMES IN A FEDERAL COURT FOR MURDER.  AT
THE FIRST TWO TRIALS, HE DID NOT TESTIFY IN HIS OWN DEFENSE; BUT HE DID
SO AT THE THIRD TRIAL, AT WHICH THE MAIN ISSUE WAS WHETHER OR NOT HE
WAS INSANE WHEN THE OFFENSE WAS COMMITTED.  ON CROSS-EXAMINATION, THE
PROSECUTOR ALLUDED TO THE TWO EARLIER TRIALS AND ASKED, "THIS IS THE
FIRST TIME YOU HAVE GONE ON THE STAND, ISN'T IT, WILLIE?"  PETITIONER'S
COUNSEL MOVED FOR A MISTRIAL ON THE GROUND THAT IT WAS PREJUDICIAL TO
INFORM THE JURY OF PETITIONER'S FAILURE TO TAKE THE STAND IN HIS
PREVIOUS TRIALS.  THE MOTION WAS DENIED, AND PETITIONER WAS CONVICTED. 
HELD:  THE QUESTION WAS PREJUDICIAL; THE ERROR WAS NOT HARMLESS; A
MISTRIAL SHOULD HAVE BEEN GRANTED; AND THE JUDGMENT AFFIRMING THE
CONVICTION IS REVERSED.  PP. 2-10. 

STEWART V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION PROVIDES IN
UNEQUIVOCAL TERMS THAT NO PERSON MAY "BE COMPELLED IN ANY CRIMINAL CASE
TO BE A WITNESS AGAINST HIMSELF."  TO PROTECT THIS RIGHT CONGRESS HAS
DECLARED THAT THE FAILURE OF A DEFENDANT TO TESTIFY IN HIS OWN DEFENSE
"SHALL NOT CREATE ANY PRESUMPTION AGAINST HIM."  (FN1)  ORDINARILY, THE
EFFECTUATION OF THIS PROTECTION IS A RELATIVELY SIMPLE MATTER - IF THE
DEFENDANT CHOOSES NOT TO TAKE THE STAND, NO COMMENT OR ARGUMENT ABOUT
HIS FAILURE TO TESTIFY IS PERMITTED.  (FN2)  BUT WHERE FOR ANY REASON
IT BECOMES NECESSARY TO TRY A PARTICULAR CHARGE MORE THAN ONE TIME, A
MORE COMPLICATED PROBLEM MAY BE PRESENTED.  FOR A DEFENDANT MAY CHOOSE
TO REMAIN SILENT AT HIS FIRST TRIAL AND THEN DECIDE TO TAKE THE STAND
AT A SUBSEQUENT TRIAL.  WHEN THIS OCCURS, QUESTIONS ARISE AS TO THE
PROPRIETY OF COMMENT OR ARGUMENT IN THE SECOND TRIAL BASED UPON THE
DEFENDANT'S FAILURE TO TAKE THE STAND AT HIS PREVIOUS TRIAL.  THIS CASE
TURNS UPON SUCH A QUESTION. 

PETITIONER HAS BEEN TRIED THREE TIMES IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA UPON AN INDICTMENT CHARGING THAT HE HAD COMMITTED
FIRST-DEGREE MURDER UNDER A FELONY-MURDER STATUTE.  (FN3) IN ALL THREE
TRIALS, PETITIONER'S CHIEF DEFENSE HAS BEEN INSANITY BUT, ON EACH
OCCASION, THE JURY HAS REJECTED THIS DEFENSE AND RETURNED A VERDICT OF
GUILTY UPON WHICH THE DISTRICT OF COLUMBIA'S MANDATORY DEATH SENTENCE
HAS BEEN IMPOSED.  (FN4)  AFTER THE FIRST TWO TRIALS, IN WHICH
PETITIONER DID NOT TESTIFY, THE CONVICTIONS AND DEATH SENTENCES WERE
SET ASIDE ON THE BASIS OF TRIAL ERRORS THAT THE COURT OF APPEALS FOUND
HAD PREVENTED A PROPER CONSIDERATION OF THE CASE BY THE JURY.  (FN5)
AT THE THIRD TRIAL, IN AN APPARENT EFFORT TO BOLSTER THE CONTENTION OF
INSANITY, PETITIONER WAS PLACED UPON THE STAND AND ASKED A NUMBER OF
QUESTIONS BY DEFENSE COUNSEL - A MANEUVER OBVIOUSLY MADE FOR THE
PURPOSE OF GIVING THE JURY AN OPPORTUNITY DIRECTLY TO OBSERVE THE
FUNCTIONING OF PETITIONER'S MENTAL PROCESSES IN THE HOPE THAT SUCH AN
EXHIBITION WOULD PERSUADE THEM THAT HIS MEMORY AND MENTAL COMPREHENSION
WERE DEFECTIVE.  PETITIONER'S RESPONSES TO THESE QUESTIONS WERE APTLY
DESCRIBED BY THE COURT BELOW AS "GIBBERISH WITHOUT MEANING."  (FN6) 

UPON CROSS-EXAMINATION, THE PROSECUTOR ATTEMPTED WITHOUT NOTICEABLE
SUCCESS TO DEMONSTRATE THAT THESE IRRATIONAL ANSWERS WERE GIVEN BY
PETITIONER IN FURTHERANCE OF HIS PLAN TO FEIGN A MENTAL WEAKNESS THAT
DID NOT EXIST.  TO THIS END, THE PROSECUTOR ASKED PETITIONER A NUMBER
OF QUESTIONS ABOUT STATEMENTS PETITIONER HAD ALLEGEDLY MADE SUBSEQUENT
TO HIS ARREST, APPARENTLY IN THE HOPE THAT ONE OF THESE QUESTIONS WOULD
SURPRISE PETITIONER AND PROVOKE A SENSIBLE RESPONSE.  WHEN PETITIONER
CONTINUED TO TALK IN THE SAME MANNER THAT HE HAD USED UPON DIRECT
EXAMINATION, THE PROSECUTOR CONCLUDED HIS CROSS-EXAMINATION WITH THE
FOLLOWING REMARKS IN THE FORM OF QUESTIONS:  "WILLIE, YOU WERE TRIED ON
TWO OTHER OCCASIONS."  AND, "THIS IS THE FIRST TIME YOU HAVE GONE ON
THE STAND, ISN'T IT, WILLIE?"  (FN7) 

THE DEFENSE MOVED IMMEDIATELY FOR A MISTRIAL ON THE GROUND THAT IT
WAS HIGHLY PREJUDICIAL FOR THE PROSECUTOR TO INFORM THE JURY OF THE
DEFENDANT'S FAILURE TO TAKE THE STAND IN HIS PREVIOUS TRIALS.  THE
PROSECUTOR DEFENDED HIS ACTIONS ON THE GROUND THAT THIS "IS A FACT THAT
THE JURY IS ENTITLED TO KNOW."  THE TRIAL JUDGE AGREED WITH THE
PROSECUTOR, DENIED THE MOTION FOR A MISTRIAL, AND THE TRIAL PROCEEDED,
CULMINATING IN THE THIRD VERDICT OF GUILTY AND DEATH SENTENCE.  ON
APPEAL, THE CASE WAS HEARD BY ALL NINE MEMBERS OF THE COURT OF APPEALS
SITTING EN BANC AND WAS AFFIRMED BY A 5-4 VOTE (FN8) - THE MAJORITY
CONCLUDING THAT THE ISSUE WAS CONTROLLED BY THE DECISION OF THIS COURT
IN RAFFEL V. UNITED STATES, (FN9) AND THE MINORITY CONCLUDING THAT THE
ISSUE WAS CONTROLLED BY OUR DECISION IN GRUNEWALD V. UNITED STATES. 
(FN10)  WE GRANTED CERTIORARI TO CONSIDER WHETHER IT WAS ERROR FOR THE
TRIAL COURT TO DENY THE MOTION FOR A MISTRIAL UNDER THE CIRCUMSTANCES. 
(FN11) 

IN THIS COURT, THE GOVERNMENT CONCEDES THAT THE QUESTION PUT TO THE
DEFENDANT ABOUT HIS PRIOR FAILURES TO TESTIFY CANNOT BE JUSTIFIED UNDER
RAFFEL, GRUNEWALD, OR ANY OTHER OF THIS COURT'S PRIOR DECISIONS.  THIS
CONCESSION, WHICH WE ACCEPT AS PROPER, RESTS UPON THE GOVERNMENT'S
RECOGNITION OF THE FACT THAT IN NO CASE HAS THIS COURT INTIMATED THAT
THERE IS SUCH A BASIC INCONSISTENCY BETWEEN SILENCE AT ONE TRIAL AND
TAKING THE STAND AT A SUBSEQUENT TRIAL THAT THE FACT OF PRIOR SILENCE
CAN BE USED TO IMPEACH ANY TESTIMONY WHICH A DEFENDANT ELECTS TO GIVE
AT A LATER TRIAL.  THE RAFFEL CASE, RELIED UPON BY THE MAJORITY BELOW,
INVOLVED A SITUATION IN WHICH RAFFEL HAD SAT SILENT AT HIS FIRST TRIAL
IN THE FACE OF TESTIMONY BY A GOVERNMENT AGENT THAT RAFFEL HAD
PREVIOUSLY MADE ADMISSIONS POINTING TO HIS GUILT.  ON A SECOND TRIAL,
RAFFEL TOOK THE STAND AND DENIED THE TRUTH OF THIS SAME TESTIMONY
OFFERED BY THE SAME WITNESS.  UNDER THESE CIRCUMSTANCES, THIS COURT
HELD THAT RAFFEL'S SILENCE AT THE FIRST TRIAL COULD BE SHOWN IN ORDER
TO DISCREDIT HIS TESTIMONY AT THE SECOND TRIAL ON THE THEORY THAT THE
SILENCE ITSELF CONSTITUTED AN ADMISSION AS TO THE TRUTH OF THE AGENT'S
TESTIMONY.  THE RESULT WAS THAT RAFFEL'S SILENCE AT THE FIRST TRIAL WAS
HELD PROPERLY ADMITTED TO IMPEACH THE SPECIFIC TESTIMONY HE OFFERED AT
THE SECOND TRIAL.  HERE, ON THE OTHER HAND, THE DEFENDANT'S ENTIRE
"TESTIMONY" COMPRISED NOTHING MORE THAN "GIBBERISH WITHOUT MEANING"
WITH THE RESULT THAT THERE WAS NO SPECIFIC TESTIMONY TO IMPEACH.  ANY
ATTEMPT TO IMPEACH THIS DEFENDANT AS A WITNESS COULD THEREFORE HAVE
RELATED ONLY TO HIS DEMEANOR ON THE STAND, AND, INDEED, THE MAJORITY
BELOW EXPRESSLY RESTED ITS CONCLUSION UPON THE VIEW THAT THE
PROSECUTION HAD THE RIGHT UNDER RAFFEL TO TEST THE GENUINENESS OF THIS
SORT OF "DEMEANOR-EVIDENCE" BY QUESTIONS AS TO WHY IT WAS NOT OFFERED
AT PREVIOUS TRIALS.  (FN12)  BUT IF RAFFEL COULD PROPERLY BE READ AS
STANDING FOR THIS PROPOSITION, SUCH QUESTIONS WOULD BE PERMISSIBLE IN
EVERY INSTANCE, FOR WHENEVER A WITNESS TAKES THE STAND, HE NECESSARILY
PUTS THE GENUINENESS OF HIS DEMEANOR INTO ISSUE.  (FN13)  THE
GOVERNMENT QUITE PROPERLY CONCEDES THAT THIS CANNOT BE THE LAW SINCE IT
WOULD CONFLICT WITH THE PRECISE HOLDING OF THIS COURT IN THE GRUNEWALD
CASE.  (FN14) 

DESPITE THIS CONCESSION, HOWEVER, THE GOVERNMENT PERSISTS IN THE
CONTENTION THAT PETITIONER'S CONVICTION SHOULD BE UPHELD, ARGUING THAT
THE ERROR COMMITTED WAS HARMLESS AND COULD NOT HAVE AFFECTED THE JURY'S
VERDICT.  THIS ARGUMENT IS RESTED UPON THREE GROUNDS:  FIRST, THAT THE
JURY MAY NOT EVEN HAVE HEARD THE IMPROPER QUESTION; SECONDLY, THAT EVEN
IF THE JURY DID HEAR THE QUESTION, IT MAY NOT HAVE INFERRED THAT
PETITIONER IN FACT DID NOT TESTIFY AT HIS PREVIOUS TRIAL; AND, FINALLY,
THAT EVEN IF THE JURY DID INFER THAT PETITIONER DID NOT TESTIFY
PREVIOUSLY, NO INFERENCE ADVERSE TO PETITIONER WOULD HAVE BEEN DRAWN
FROM THIS FACT.  THE FIRST TWO OF THESE GROUNDS CAN BE QUICKLY DISPOSED
OF.  WE CAN THINK OF NO JUSTIFICATION FOR IGNORING THE PART OF A RECORD
SHOWING ERROR ON A MERE CONJECTURE THAT THE JURY MIGHT NOT HAVE HEARD
THE TESTIMONY THAT PART OF THE RECORD REPRESENTS.   NOR DO WE BELIEVE
IT REASONABLE TO ARGUE THAT THE JURY TRYING THIS CASE WOULD NOT HAVE
INFERRED THAT THIS DEFENDANT HAD FAILED TO TESTIFY IN HIS PRIOR TRIALS
WHEN THE PROSECUTOR ASKED, "THIS IS THE FIRST TIME YOU HAVE GONE ON THE
STAND, ISN'T IT, WILLIE?"  INDEED, THE RECOGNITION THAT SUCH AN
INFERENCE WILL IN ALL LIKELIHOOD BE DRAWN FROM LEADING QUESTIONS OF
THIS KIND LIES AT THE ROOT OF THE LONG-ESTABLISHED RULE THAT SUCH
QUESTIONS MAY NOT PROPERLY BE PUT UNLESS THE INFERENCE, IF DRAWN, WOULD
BE FACTUALLY TRUE.  (FN15)  THUS, THE GOVERNMENT'S ARGUMENT THAT THE
ERROR WAS HARMLESS MUST STAND OR FALL UPON THE THIRD GROUND IT URGES -
THAT THE JURY'S AWARENESS OF PETITIONER'S FAILURE TO TAKE THE STAND AT
HIS PREVIOUS TRIALS WOULD NOT HAVE PREJUDICED THE CONSIDERATION OF HIS
CASE.  THE DISPOSITION OF THIS CONTENTION REQUIRES THE STATEMENT OF A
FEW MORE OF THE RELEVANT FACTS OF THE CASE. 

IN CONNECTION WITH THE DEFENSE OF INSANITY, PETITIONER HAD INTRODUCED
EVIDENCE OF BOTH MENTAL DISEASE AND MENTAL DEFECT, AS THOSE TERMS ARE
APPLIED IN THE RELEVANT LAW OF THE DISTRICT OF COLUMBIA.  (FN16)  ON
THE MENTAL DISEASE ISSUE, THE TESTIMONY WAS THAT PETITIONER WAS
SUFFERING FROM MANIC DEPRESSIVE PSYCHOSIS, A DISEASE WHICH THE RECORD
SHOWS TENDS TO FLUCTUATE CONSIDERABLY IN ITS MANIFESTATIONS FROM TIME
TO TIME.  ON THE MENTAL DEFECT ISSUE, THE DEFENSE INTRODUCED EVIDENCE
THAT PETITIONER HAD AN INTELLIGENCE LEVEL IN THE MORONIC CLASS.  THE
CASE WENT TO THE JURY ON BOTH OF THESE POINTS, THE JURY BEING DIRECTED
TO ACQUIT IF IT FOUND THE HOMICIDE TO HAVE BEEN THE PRODUCT EITHER OF
MENTAL DISEASE OR MENTAL DEFECT.  (FN17)  PETITIONER'S "TESTIMONY" THUS
RAISED AT LEAST TWO DIFFERENT ISSUES IN THE MINDS OF THE JURY: FIRST,
WHETHER PETITIONER WAS SIMPLY FEIGNING THIS TESTIMONY; AND, SECONDLY,
WHETHER, IF NOT, PETITIONER'S CONDITION AT THE TIME OF HIS THIRD TRIAL
FAIRLY REPRESENTED HIS CONDITION AT THE TIME OF THE ACT CHARGED IN THE
INDICTMENT.  (FN18) 

WE THINK IT APPARENT THAT THE JURY'S AWARENESS OF PETITIONER'S
FAILURE TO TESTIFY AT HIS FIRST TWO TRIALS COULD HAVE AFFECTED ITS
DELIBERATIONS ON EITHER OR BOTH OF THESE ISSUES.  THUS, THE JURY MIGHT
WELL HAVE THOUGHT IT LIKELY THAT PETITIONER ELECTED TO FEIGN THIS
"TESTIMONY" OUT OF DESPERATION BROUGHT ON BY HIS FAILURE TO GAIN
ACQUITTAL WITHOUT IT IN THE TWO PREVIOUS TRIALS.  SIMILARLY, EVEN IF
THE JURY BELIEVED PETITIONER'S "TESTIMONY" WAS GENUINE, IT MIGHT HAVE
THOUGHT THAT PETITIONER'S CONDITION WAS CAUSED BY A MENTAL DISEASE AND
CONCLUDED THAT IT IS UNLIKELY THAT A DISEASE THAT HAD MANIFESTED ITSELF
ONLY ONE OUT OF THREE TIMES FOR EXHIBITION AT TRIAL WAS ACTIVE AT THE
OCCASION OF THE HOMICIDE.  OR, ON THE SAME ASSUMPTION, IT MIGHT HAVE
THOUGHT THAT PETITIONER'S FAILURE TO EXHIBIT HIMSELF AT THE PREVIOUS
TRIALS INDICATED THAT THE CONDITION MANIFESTED AT THIS TRIAL WAS THE
RESULT OF A WORSENING IN HIS MENTAL CONDITION SINCE THOSE TRIALS AND,
CONSEQUENTLY, ALSO SINCE THE COMMISSION OF THE ACTS CHARGED IN THE
INDICTMENT.  THERE MAY BE OTHER WAYS IN WHICH THE JURY MIGHT HAVE USED
THE INFORMATION IMPROPERLY GIVEN IT BY THE PROSECUTION - WE HAVE
MENTIONED MORE THAN ENOUGH ALREADY, HOWEVER, TO SATISFY OURSELVES THAT
THE GOVERNMENT'S CONTENTION THAT THE ERROR WAS HARMLESS MUST BE
REJECTED. 

THE GOVERNMENT'S FINAL CONTENTION IS THAT EVEN IF THE ERROR WAS
PREJUDICIAL THE CONVICTION SHOULD BE ALLOWED TO STAND ON THE THEORY
THAT THE ERROR WAS NOT SUFFICIENTLY PREJUDICIAL TO WARRANT THE GRANTING
OF A MISTRIAL AND THE DEFENSE MADE NO REQUEST FOR CAUTIONARY
INSTRUCTIONS.  ONE ANSWER TO THIS ARGUMENT IS TO BE FOUND IN THE
GOVERNMENT'S OWN BRIEF.  FOR, IN ITS ARGUMENT REGARDING THE POSSIBILITY
THAT THE JURY MAY NOT HAVE BEEN AWARE OF THE IMPROPER QUESTION, THE
GOVERNMENT STRESSES THE FACT THAT THE QUESTION WAS NOT EMPHASIZED BY
ANY REFERENCE TO IT IN THE INSTRUCTIONS TO THE JURY.  DURING THE COURSE
OF THIS ARGUMENT THE GOVERNMENT EXPRESSLY RECOGNIZES THAT THE DANGER OF
THE SITUATION WOULD HAVE BEEN INCREASED BY A CAUTIONARY INSTRUCTION IN
THAT SUCH AN INSTRUCTION WOULD HAVE AGAIN BROUGHT THE JURY'S ATTENTION
TO PETITIONER'S PRIOR FAILURES TO TESTIFY.  PLAINLY, THE DEFENSE WAS
UNDER NO OBLIGATION TO TAKE SUCH A RISK.  THE MOTION FOR A MISTRIAL WAS
ENTIRELY APPROPRIATE AND, INDEED, NECESSARY TO PROTECT THE INTERESTS OF
PETITIONER.  (FN19) 

WE THUS CONCLUDE THAT THIS CONVICTION AND SENTENCE AGAINST PETITIONER
CANNOT STAND.  IN DOING SO, WE AGREE WITH THE POINT MADE BY THE
GOVERNMENT IN ITS BRIEF - THAT IT IS REGRETTABLE WHEN THE CONCURRENT
FINDINGS OF 36 JURORS ARE NOT SUFFICIENT FINALLY TO TERMINATE A CASE. 
BUT UNDER OUR SYSTEM, A MAN IS ENTITLED TO THE FINDINGS OF 12 JURORS ON
EVIDENCE FAIRLY AND PROPERLY PRESENTED TO THEM.  PETITIONER MAY NOT BE
DEPRIVED OF HIS LIFE UNTIL THAT RIGHT IS ACCORDED HIM.  THAT RIGHT WAS
DENIED HERE BY THE PROSECUTOR'S IMPROPER QUESTIONS.  REVERSED. 

FN1  "IN TRIAL OF ALL PERSONS CHARGED WITH THE COMMISSION OF OFFENSES
AGAINST THE UNITED STATES AND IN ALL PROCEEDINGS IN COURTS MARTIAL AND
COURTS OF INQUIRY IN ANY STATE, DISTRICT, POSSESSION OR TERRITORY, THE
PERSON CHARGED SHALL, AT HIS OWN REQUEST, BE A COMPETENT WITNESS.  HIS
FAILURE TO MAKE SUCH REQUEST SHALL NOT CREATE ANY PRESUMPTION AGAINST
HIM."  62 STAT. 833, 18 U.S.C. SEC. 3481. 

FN2  WILSON V. UNITED STATES, 149 U.S. 60. 

FN3  "WHOEVER, BEING OF SOUND MEMORY AND DISCRETION, KILLS ANOTHER
PURPOSELY, EITHER OF DELIBERATE AND PREMEDITATED MALICE OR BY MEANS OF
POISON, OR IN PERPETRATING OR ATTEMPTING TO PERPETRATE ANY OFFENSE
PUNISHABLE BY IMPRISONMENT IN THE PENITENTIARY, OR WITHOUT PURPOSE SO
TO DO KILLS ANOTHER IN PERPETRATING OR IN ATTEMPTING TO PERPETRATE ANY
ARSON, AS DEFINED IN SECTION 22-401 OR 22-402 OF THIS CODE, RAPE,
MAYHEM, ROBBERY, OR KIDNAPPING, OR IN PERPETRATING OR IN ATTEMPTING TO
PERPETRATE ANY HOUSEBREAKING WHILE ARMED WITH OR USING A DANGEROUS
WEAPON, IS GUILTY OF MURDER IN THE FIRST DEGREE."  DISTRICT OF COLUMBIA
CODE SEC. 22-2401.    FN4  SECTION 22-2404 OF THE DISTRICT OF COLUMBIA
CODE PROVIDES:  "THE PUNISHMENT OF MURDER IN THE FIRST DEGREE SHALL BE
DEATH BY ELECTROCUTION." 

FN5  THE FIRST CONVICTION WAS SET ASIDE BECAUSE OF ERRONEOUS
INSTRUCTIONS ON THE DEFENSE OF INSANITY.  94 U.S. APP. D.C. 293, 214
F.2D 879.  THE SECOND CONVICTION WAS SET ASIDE BECAUSE OF IMPROPER
ARGUMENT BY THE PROSECUTOR.  101 U.S. APP. D.C. 51, 247 F.2D 42.    FN6
107 U.S. APP. D.C. 159, 160, 275 F.2D 617, 618.  THE FOLLOWING EXCERPT
FROM PETITIONER'S TESTIMONY IS ENTIRELY TYPICAL: 

"Q.  WHO IS YOUR LAWYER? 

"A.  WELL, I MEAN, I AM MY OWN LAWYER, AS FAR AS MY CONCERN. 

"Q.  HAVE I BEEN REPRESENTING YOU HERE THE LAST COUPLE DAYS? 

"A.  AS FAR AS I AM CONCERNED, YOU ALL LOOK THE SAME TO ME. 

"Q.  DO YOU KNOW WHAT IS GOING ON IN THIS COURTROOM THE LAST COUPLE
DAYS? 

"A.  I AIN'T ASKED ABOUT WHAT IS GOING ON.  IT IS UP TO YOU GO ON AND
DESCRIBE YOURSELF.  I MEAN, DON'T ASK ME.  AS FAR AS I AM JUST SITTING
HERE. 

"Q.  DID YOU EVER HEAR THE NAME HARRY HONIGMAN (THE MAN WITH WHOSE
MURDER PETITIONER WAS CHARGED) BEFORE? 

"A.  I HAVEN'T. 

"Q.  DO YOU KNOW YOU ARE CHARGED WITH FIRST DEGREE MURDER? 

"A.  AS FAR AS I AM CONCERNED, I AIN'T CHARGED WITH NOTHING. 

"Q. WHAT IS FIRST DEGREE MURDER; DO YOU KNOW? 

"A.  I DON'T KNOW." 

FN7  THE RECORD REVEALS THE FOLLOWING EXCHANGE AT THE CONCLUSION OF
THE CROSS-EXAMINATION OF PETITIONER BY THE PROSECUTOR, A MR. SMITHSON: 

"Q.  WILLIE, YOU WERE TRIED ON TWO OTHER OCCASIONS. 

"A.  WELL, I DON'T CARE HOW MANY OCCASIONS, HOW MANY CASE - YOU SAY
CASE.  I WAS A CASE MAN ONCE IN A TIME. 

"Q.  THIS IS THE FIRST TIME YOU HAVE GONE ON THE STAND, ISN'T IT,
WILLIE? 

"A.  WHAT? 

"Q.  THIS IS THE FIRST TIME YOU HAVE GONE ON THE STAND, ISN'T IT,
WILLIE? 

"A.  I AM ALWAYS THE STAND; I AM EVERYTHING, I DONE TOLD YOU. 

"MR. SMITHSON:  THAT IS ALL." 

FN8  107 U.S. APP. D.C. 159, 275 F.2D 617. 

FN9  271 U.S. 494. 

FN10  353 U.S. 391. 

FN11  363 U.S. 818.  THE PETITION FOR CERTIORARI ALSO RAISED
OBJECTIONS BASED UPON OTHER ALLEGED ERRORS DURING THE COURSE OF THE
TRIAL.  IN VIEW OF OUR DISPOSITION OF THE PRIMARY ISSUE AND BECAUSE THE
ACTIONS COMPLAINED OF MAY NOT ARISE AT ANY SUBSEQUENT TRIAL, WE FIND IT
UNNECESSARY TO PASS UPON THESE OTHER OBJECTIONS. 

FN12  THUS, THE MAJORITY REASONED:  "THE LOGICAL AND PERMISSIBLE
FIRST STEP UNDER RAFFEL V. UNITED STATES, SUPRA, WAS TO HAVE HIM SAY
WHETHER HE HAD PREVIOUSLY TESTIFIED IN ORDER TO LAY THE GROUNDWORK FOR
DEVELOPING AN INCONSISTENCY INHERENT IN THE DIFFERENCE IN HIS 'DEMEANOR
EVIDENCE' IN THE TWO TRIALS."  107 U.S. APP. D.C. 159, 167, 275 F.2D
617, 625. 

FN13  THIS IS SO BECAUSE THE DEFENDANT'S CREDIBILITY IS IN ISSUE
WHENEVER HE TESTIFIES.  IF THE FAILURE TO TESTIFY AT A PREVIOUS TRIAL
WERE TO AMOUNT TO EVIDENCE THAT TESTIMONY AT A SUBSEQUENT TRIAL WAS
FEIGNED OR PERJURIOUS, THE FACT OF FAILURE TO TESTIFY WOULD ALWAYS BE
ADMISSIBLE. 

FN14  THE HOLDING IN GRUNEWALD WAS THAT THE DEFENDANT'S ANSWERS TO
CERTAIN QUESTIONS WERE NOT INCONSISTENT WITH HIS PREVIOUS RELIANCE UPON
THE FIFTH AMENDMENT TO EXCUSE A REFUSAL TO ANSWER THOSE VERY SAME
QUESTIONS.  SINCE DEFENDANT'S TESTIMONY PLACED HIS CREDIBILITY IN
ISSUE, THE NECESSARY IMPLICATION OF THAT HOLDING IS THAT HIS PRIOR
REFUSAL TO TESTIFY COULD NOT BE USED TO IMPEACH HIS GENERAL
CREDIBILITY. 

FN15 III WIGMORE, EVIDENCE (3D ED.), SEC. 780.  WIGMORE QUOTES
CHITTY, PRACTICE OF THE LAW, 2D ED., III, 901, FOR THE PROPOSITION:
"IT IS AN ESTABLISHED RULE, AS REGARDS CROSS-EXAMINATION, THAT A
COUNSEL HAS NO RIGHT, EVEN IN ORDER TO DETECT OR CATCH A WITNESS IN A
FALSITY, FALSELY TO ASSUME OR PRETEND THAT THE WITNESS HAD PREVIOUSLY
SWORN OR STATED DIFFERENTLY TO THE FACT, OR THAT A MATTER HAD
PREVIOUSLY BEEN PROVED WHEN IT HAD NOT."  THIS COURT HAS PREVIOUSLY
RECOGNIZED THAT PRINCIPLE.  BERGER V. UNITED STATES, 295 U.S. 78, 84. 

FN16  THE DIFFERENCE BETWEEN THE TERMS "DISEASE" AND "DEFECT" WAS
EXPLAINED IN THE CHARGE TO THE JURY IN THE FOLLOWING MANNER:  "WE USE
'DISEASE' IN THE SENSE OF A CONDITION WHICH IS CONSIDERED CAPABLE OF
EITHER IMPROVING OR DETERIORATING.  WE USE 'DEFECT' IN THE SENSE OF A
CONDITION WHICH IS NOT CONSIDERED CAPABLE OF EITHER IMPROVING OR
DETERIORATING, AND WHICH MAY BE EITHER CONGENITAL OR THE RESULT OF
INJURY, OR THE RESIDUAL EFFECT OF A PHYSICAL OR MENTAL DISEASE." 

FN17  THESE INSTRUCTIONS STEMMED FROM THE TEST OF CRIMINAL
RESPONSIBILITY THAT PREVAILS IN THE DISTRICT OF COLUMBIA UNDER THE
DECISION OF THE COURT OF APPEALS IN DURHAM V. UNITED STATES, 94 U.S.
APP. D.C. 228, 214 F.2D 862. 

FN18  THIS SECOND ISSUE ARISES FROM THE FACT THAT THE JURY WAS NOT
HERE TRYING THE QUESTION WHETHER PETITIONER WAS MENTALLY COMPETENT TO
STAND TRIAL.  UNDER THE DISTRICT OF COLUMBIA PRACTICE, THAT QUESTION IS
DECIDED IN A SEPARATE PROCEEDING.  SEE DISTRICT OF COLUMBIA CODE SEC.
24-301. 

FN19  JOHNSON V. UNITED STATES, 318 U.S. 189, RELIED UPON BY THE
GOVERNMENT, DOES NOT SUSTAIN ITS ARGUMENT ON THIS POINT.  THERE THE
DEFENSE MADE NO OBJECTION AT ALL, CHOOSING INSTEAD TO REST ITS CHANCES
UPON THE VERDICT OF THE JURY.  PETITIONER HERE MADE NO SUCH CHOICE FOR
HE HAS REPEATEDLY PRESSED HIS RIGHT TO A MISTRIAL, IN THE DISTRICT
COURT, IN THE COURT OF APPEALS, AND HERE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

THE RESULT WHICH THE COURT DRAWS FROM ITS ACCOUNT OF THE TRIAL SEEMS
NOT UNREASONABLE.  BUT BY FORCE OF WHAT THE COURT DOES NOT RELATE,
THERE IS SUCH DISPARITY BETWEEN ITS ACCOUNT AND THE ALMOST NINE HUNDRED
PAGES OF THE TRIAL TRANSCRIPT THAT, IN FAIRNESS, THE COURT'S OPINION
HARDLY CONVEYS WHAT TOOK PLACE BEFORE THE JURY AND WHAT MUST,
THEREFORE, RATIONALLY BE EVALUATED IN ATTRIBUTING ANY INFLUENCE ON THE
JURY'S VERDICT TO THE QUESTIONS WHICH THE GOVERNMENT NOW CONCEDES WERE
IMPROPERLY ASKED.  "IN REVIEWING CRIMINAL CASES, IT IS PARTICULARLY
IMPORTANT FOR APPELLATE COURTS TO RE-LIVE THE WHOLE TRIAL IMAGINATIVELY
AND NOT TO EXTRACT FROM EPISODES IN ISOLATION ABSTRACT QUESTIONS OF
EVIDENCE AND PROCEDURE.  TO TURN A CRIMINAL APPEAL INTO A QUEST FOR
ERROR NO MORE PROMOTES THE ENDS OF JUSTICE THAN TO ACQUIESCE IN LOW
STANDARDS OF CRIMINAL PROSECUTION."  JOHNSON V. UNITED STATES, 318 U.S.
189, 202 (CONCURRING OPINION). 

WHAT EMERGES FROM THE TRANSCRIPT, AT THE OUTSET, IS THAT WILLIE LEE
STEWART'S KILLING OF HARRY HONIKMAN WAS PRACTICALLY NEVER IN ISSUE. 
THE TESTIMONY OF TWO EYE-WITNESSES WHO POSITIVELY IDENTIFIED STEWART AS
THE KILLER (FN1) WAS NOT SERIOUSLY CHALLENGED.  A THIRD WITNESS HAD
EXAMINED IN STEWART'S HANDS, SHORTLY BEFORE THE KILLING, THE GUN WHICH
UNIMPUGNED BALLISTIC EVIDENCE ESTABLISHED FIRED THE LETHAL SHOTS.  THE
TESTIMONY OF A FINGERPRINT EXPERT, ALSO UNIMPUGNED, LINKED STEWART TO
THE KILLING.  NOWHERE IN THEIR OPENING OR CLOSING STATEMENTS DID
EXPERIENCED DEFENSE COUNSEL ASK THE JURY TO DOUBT THAT STEWART WAS THE
KILLER:  THE WHOLE OF THE DEFENSE WAS THAT STEWART WAS NOT RESPONSIBLE
BECAUSE INSANE. 

INSANITY WAS NOT MERELY, AS THE COURT SAYS, STEWART'S CHIEF DEFENSE;
IT WAS HIS DEFENSE.  HIS LAWYER PUT IT APTLY: "THE PROSECUTOR KNOWS AS
WELL AS I, AS ANYBODY IN THIS COURTROOM, THE ONLY DEFENSE WE HAVE IS
INSANITY."  (FN2)  THUS, THERE IS NOT INVOLVED IN THIS CASE THE DANGER
THAT THE JURY, BEING TOLD AS LAYMEN OF THE DEFENDANT'S PREVIOUS FAILURE
TO TESTIFY IN HIS OWN BEHALF, REASONED THAT IF STEWART DID NOT DO THE
ACTS WITH WHICH HE WAS CHARGED HE WOULD HAVE SAID SO.  HERE, THOSE ACTS
WERE NOT CONTESTED.  IF PREJUDICE IS NOT TO BE BLINDLY ASSUMED, BUT TO
BE DISCOVERED IN THE RECORD, IT MUST BE DISCOVERED BY SOME MORE SUBTLE
TRAIN OF ASSOCIATIONS. 

STEWART'S TRIAL TOOK THE MAJOR PART OF SIX COURT DAYS:  TWELVE
CALENDAR DAYS.  THE GOVERNMENT'S OPENING CASE, PRESENTING THE TESTIMONY
OF THE EYEWITNESSES, FINGERPRINT AND BALLISTIC EXPERTS, ARRESTING AND
INVESTIGATING OFFICERS, ETC. - TEN WITNESSES IN ALL (FN3) - CONSUMED A
DAY AND A HALF.   THEREAFTER, BEGINNING ON THE SECOND COURT DAY AND
RUNNING INTO THE THIRD, THE DEFENSE PUT IN THE TESTIMONY OF A SERIES OF
WITNESSES - STEWART'S COUSIN, LANDLADY, FRIEND, SISTER, EMPLOYER, WIFE,
NEIGHBOR, SISTER-IN-LAW - ALL OF WHOM RECOUNTED EPISODES OF STEWART'S
BEHAVIOR TENDING TO SHOW HIS UNSOUNDNESS OF MIND.  (FN4)  THESE
EPISODES SPANNED THE PERIOD OF HIS LIFE FROM EARLY CHILDHOOD UNTIL THE
TIME OF THE KILLING, AND THEY PAINTED WHAT, TO SAY THE LEAST, IS A
BIZARRE PORTRAIT. 

IF THE JURY BELIEVED THEM, THEY BELIEVED, INTER ALIA:  (1) THAT
STEWART, AS A CHILD, THREW ALL HIS FOOD ON THE FLOOR, RAN AWAY FROM
SCHOOL, TORE HIS CLOTHES OFF, CUT THEM UP, ROAMED THE HOUSE AT NIGHT;
(2) THAT STEWART'S AUNTS AND BROTHER WERE OF UNSOUND MIND, IN THAT THEY
WOULD OFTEN SIT WITH SALIVA RUNNING OUT OF THEIR MOUTHS AND WOULD NEVER
SAY ANYTHING; (3) THAT STEWART, AS AN ADULT, ONCE SHOT AT HIS WIFE, AND
SAT ON HIS WIFE AND BEAT HER WHILE SHE WAS PREGNANT; (4) THAT HE ONCE
PUNCHED A HOLE IN A LOW CEILING WITH HIS FIST FOR NO APPARENT REASON
AND, ON ANOTHER OCCASION, THREW ALL THE FOOD OUT OF HIS REFRIGERATOR
AND BEAT THE REFRIGERATOR DOOR SO HARD WITH HIS FISTS THAT HE BROKE IT;
(5) THAT HE LOCKED HIS CHILDREN OUT OF THE FAMILY'S ROOM IN COLD
WEATHER; THAT HE THREATENED TO THROW ONE OF HIS CHILDREN, WHILE A BABY,
OUT OF THE WINDOW AND THREATENED TO THROW ANOTHER INTO A BURNING STOVE;
THAT HE WOULD HAVE DONE BOTH IF NOT FORCIBLY PREVENTED; (6) THAT HE
INSISTED ON PUSHING THROUGH A BOARDED FRONT DOOR AND JUMPING IN AND OUT
OF THE HOUSE AT A TIME WHEN THE PORCH WAS UNDER REPAIR; THAT HE ONCE
JUMPED OUT OF A WINDOW; THAT HE THREW HIS NEPHEW'S TOY PIANO OUT OF A
WINDOW; (7) THAT HE ATTEMPTED TO HAVE SEXUAL RELATIONS WITH HIS SISTER
IN-LAW IN HER HUSBAND'S PRESENCE; (8) THAT, HAVING BEEN TOLD BY HIS
EMPLOYER THAT HE WOULD GET A REQUESTED PAY RAISE, HE KICKED DOWN A
BRICK WALL THAT HE HAD BEEN CONSTRUCTING.  FOLLOWING THIS TESTIMONY,
DEFENSE COUNSEL READ TO THE JURY PORTIONS OF STEWART'S MILITARY RECORD,
REVEALING THAT A MEDICAL DISCHARGE HAD BEEN RECOMMENDED FOR STEWART
AFTER A FIGHT WITH ANOTHER SOLDIER, LARGELY ON THE BASIS OF TESTS TAKEN
AT THAT TIME WHICH PLACED STEWART'S INTELLIGENCE IN THE FEEBLE-MINDED
RANGE. 

ON THE THIRD TRIAL DAY, THE DEFENDANT TOOK THE STAND AND WAS EXAMINED
AND CROSS-EXAMINED BRIEFLY.  HIS TESTIMONY OCCUPIES FIFTEEN PAGES OF
THE EIGHT-HUNDRED-AND-EIGHTY-FIVE-PAGE TRIAL MINUTES.  LET THIS SAMPLE
OF IT GIVE ITS QUALITY OF MEANINGLESSNESS: 

"Q.  WHAT IS YOUR WIFE'S NAME, WILLIE? 

"A.  YOU SHOULD ASK HER THAT.  AS FAR AS I AM CONCERNED, I DON'T HAVE
NO WIFE.  I DON'T CONSIDER I HAVE ANY; THEREFORE, I CAN'T SAY WHAT HER
NAME IS. 

"Q.  HAVE YOU EVER BEEN MARRIED? 

"A.  I WOULDN'T SAY MARRIED. 

"Q.  WHAT DO YOU MEAN YOU WOULDN'T SAY MARRIED? 

"A.  WELL, AS FAR AS I CONCERNED, NOBODY IS MARRIED, AS FAR AS MY WAY
OF UNDERSTANDING. 

"Q.  DO YOU HAVE ANY CHILDREN? 

"A.  I DON'T CONSIDER - I HAVE NONE.  SHE SAY I HAVE SOME.  I DON'T
HAVE NONE.  IF SHE SAY I HAVE SOME, I GUESS I HAVE TO LEAVE IT TO HER. 
AS FAR AS MY CONCERN, I DON'T HAVE NONE AND I DON'T WANT NONE. 

"Q.  DO YOU KNOW WHERE YOU ARE NOW? 

"A.  LOOKING AT YOU, AS FAR AS I KNOW. 

"Q.  WHAT IS MY NAME? 

"A.  I DON'T KNOW. 

"Q.  WHO IS YOUR LAWYER? 

"A.  WELL, I MEAN, I AM MY OWN LAWYER, AS FAR AS MY CONCERN." 

ON HIS DIRECT EXAMINATION, STEWART TESTIFIED THAT HE DID NOT KNOW WHAT
KIND OF A BUILDING HE WAS IN, THAT HE HAD NEVER SHOT NOBODY BUT THAT
THE WHITE FOLKS TOLD HIM HE WAS SUPPOSED TO KILL; THAT HE CONSIDERED
HIMSELF MASTER, AS FAR AS THE KILLING SITUATION; THAT HE WAS THE
MONKEY, THE MONKEY WITH THE TAIL; THAT HE STILL REMAINED TO SEE THAT
MONKEY WITH THE TAIL; THAT HE HAD BEEN TOLD TO KILL - HIS MIND TELLS
HIM TO KILL - AND HE WAS ALWAYS GOING TO KILL UNTIL HE CONQUERED; THAT
THE GOOD MAN UPSTAIRS SAY SO; THAT HE HAD TALKED TO GOD AND GOD TOLD
HIM TO CONQUER EVERYBODY, THAT HE WAS THE MASTER; HE HATED EVERBODY;
COUNSEL SHOULDN'T ASK HIM NO MORE.  THE BRIEF CROSS-EXAMINATION
PROCEEDED IN THE SAME VEIN.  THE PROSECUTOR'S QUESTIONS, DESIGNED LESS
TO ELICIT ANY INFORMATION FROM THE WITNESS THAN TO CALL FORTH SOME
REVEALINGLY INTELLIGENT RESPONSE, SOME SIGN OF MEMORY OR UNDERSTANDING,
WHICH WOULD SHOW THAT STEWART'S APPARENTLY GRAVE MENTAL ESTRANGEMENT
WAS A POSE, EVOKED ONLY WILD AND UNRESPONSIVE ANSWERS.  THE CROSS
EXAMINATION CLOSED ON THE FOLLOWING DIALOGUE: 

"Q.  YOU CAN SEE ME, CAN'T YOU, WILLIE? 

"A.  SURE.  YOU CAN SEE ME, TOO, CAN'T YOU?  WE SEE ONE ANOTHER.  I
AM GOING TO BE THE MASTER AND YOU AIN'T GOING TO STOP ME AND NOBODY
ELSE. 

"Q.  TELL ME, WILLIE, DO YOU KNOW A DR. WILLIAMS? 

"A.  DR. WILLIAMS? 

"Q.  YES, DR. E.Y. WILLIAMS. 

"A.  WHY YOU KEEP ASKING ME?  IF I TOLD YOU ONCE, I TOLD YOU A
HUNDRED TIME, I AM MY OWN DOCTOR.  WHY YOU KEEP ASKING ME THE SAME
QUESTION OVER AND OVER AGAIN.  I TOLD YOU I AM MY OWN DOCTOR. 

"Q.  DO YOU KNOW A DEPUTY MARSHAL BY THE NAME OF BALLINGER? 

"A.  I AM MY OWN MARSHAL.  I AM EVERYTHING.  THAT TAKES CARE OF THE
WHOLE QUESTION.  I AM EVERYTHING.  EVERYTHING YOU ASK ME, I AM TALKING
TO ME, I AM IT. 

"Q.  WILLIE, YOU WERE TRIED ON TWO OTHER OCCASIONS. 

"A.  WELL, I DON'T CARE HOW MANY OCCASIONS, HOW MANY CASE - YOU SAY
CASE.  I WAS A CASE MAN ONCE IN A TIME. 

"Q.  THIS IS THE FIRST TIME YOU HAVE GONE ON THE STAND, ISN'T IT,
WILLIE? 

"A.  WHAT?    "Q.  THIS IS THE FIRST TIME YOU HAVE GONE ON THE STAND,
ISN'T IT, WILLIE? 

"A.  I AM ALWAYS THE STAND; I AM EVERYTHING, I DONE TOLD YOU. 

"MR. SMITHSON (THE PROSECUTOR):  THAT IS ALL. 

"THE WITNESS:  YOU AND NOBODY ELSE GOING EVER STOP ME. 

"THE COURT:  MR. CAREY (DEFENSE COUNSEL), ANYTHING FURTHER? 

"MR. CAREY:  THAT IS ALL." 

DEFENSE COUNSEL IMMEDIATELY MOVED FOR A MISTRIAL, WHICH WAS DENIED. 
THE DEFENSE THEN QUALIFIED DR. E.Y. WILLIAMS, A PSYCHIATRIST, AS AN
EXPERT WITNESS.  RESPONSIVE TO HYPOTHETICAL QUESTIONS PREDICATED UPON
STEWART'S ARMY RECORD, THE VARIOUS INSTANCES OF ODD BEHAVIOR TESTIFIED
TO BY THE PREVIOUS LAY WITNESSES, AND THE CIRCUMSTANCES OF HONIKMAN'S
KILLING, DR. WILLIAMS GAVE HIS PROFESSIONAL OPINION THAT STEWART WAS,
AT THE TIME OF THE KILLING, SUFFERING FROM BOTH A MENTAL DEFECT AND A
MENTAL DISEASE.  HE EXPLAINED IN DETAIL THE PSYCHIATRIC SIGNIFICANCE OF
STEWART'S INTELLIGENCE QUOTIENT OF SIXTY-FIVE, A RATING WHICH, HE TOLD
THE JURY, WOULD CHARACTERIZE STEWART AS A MORON.  HE FURTHER TYPIFIED
STEWART'S MENTAL DISEASE AS MANIC-DEPRESSIVE PSYCHOSIS AND, BY THE USE
OF A BLACKBOARD, DIAGRAMMED AND DESCRIBED THE CYCLIC CHARACTER OF THAT
DISEASE.  HE TESTIFIED THAT HIS OWN EXAMINATION OF THE DEFENDANT IN
1953 HAD YIELDED INSUFFICIENT PERSONAL HISTORY TO BASE A DIAGNOSIS, BUT
THAT HE HAD EXAMINED STEWART ON SEVERAL OCCASIONS SINCE THAT TIME AND
FOUND NOTHING WHICH WOULD CHANGE HIS OPINION THAT STEWART WAS A MANIC
DEPRESSIVE PSYCHOTIC.  DR. WILLIAMS WAS CROSS-EXAMINED AT LENGTH ON THE
AFTERNOON OF THE THIRD AND THE MORNING OF THE FOURTH DAYS OF THE
TRIAL. 

THE REMAINING THREE TRIAL DAYS WERE TAKEN UP, IN LARGE PART, BY THE
TESTIMONY OF SEVEN GOVERNMENT WITNESSES PUT FORWARD TO REBUT STEWART'S
DEFENSE OF INSANITY.  TWO PSYCHIATRIC EXPERTS TESTIFIED THAT THEY HAD
EXAMINED STEWART SHORTLY AFTER THE KILLING IN 1953 AND FOUND NO MENTAL
DEFECT OR DISEASE.  A NEIGHBOR AND FRIEND OF STEWART'S WHO HAD KNOWN
HIM FOR SIX YEARS AND SEEN HIM REGULARLY DURING AT LEAST THREE YEARS
PRECEDING 1953 TESTIFIED THAT, ON THE BASIS OF STEWART'S CONDUCT IN HIS
PRESENCE, HE BELIEVED THAT STEWART WAS NORMAL.  AN ATTENDANT AT SAINT
ELIZABETHS HOSPITAL, WHERE STEWART HAD BEEN COMMITTED DURING LATE 1957
AND EARLY 1958, DESCRIBED STEWART'S BEHAVIOR THERE AS THAT OF A MODEL
PATIENT WHO HAD CAUSED NO SPECIFIC TROUBLE, GOTTEN ALONG WITH OTHERS,
PLAYED CARDS AND CHECKERS, BEEN SEEN WITH A BIBLE, ETC.  A POLICE
LIEUTENANT AT THE DISTRICT OF COLUMBIA JAIL SIMILARLY RELATED STEWART'S
ACTIVITIES AT THE JAIL OVER THE FOUR YEARS BETWEEN THE KILLING AND THE
PRESENT TRIAL.  THROUGH THIS WITNESS THERE WERE PUT IN EVIDENCE AS
EXHIBITS PORTIONS OF THE JAIL FILE TENDING TO SHOW THAT STEWART HAD
SIGNED CERTAIN FORMS, MADE CERTAIN WRITTEN REQUESTS, AND SENT NUMEROUS
LETTERS TO HIS WIFE AND SISTER-IN-LAW.  A THIRD PSYCHIATRIC EXPERT, WHO
HAD EXAMINED STEWART EARLY IN 1958, TESTIFIED THAT HE FOUND NO EVIDENCE
OF MENTAL DISEASE AND DID NOT REGARD STEWART AS A MENTAL DEFECTIVE.  A
FOURTH TESTIFIED, ON THE BASIS OF TWO EXAMINATIONS MADE IN 1958, THAT
THE DEFENDANT WAS NOT A MANIC-DEPRESSIVE PSYCHOTIC.  BOTH OF THESE
PSYCHIATRISTS AGREED THAT STEWART WAS MALINGERING AT THE TIME OF THEIR
EXAMINATIONS. 

IT IS UNNECESSARY TO DESCRIBE IN GREATER DETAIL HERE THE TESTIMONY OF
THESE SEVEN GOVERNMENT WITNESSES.  ALL WERE CROSS-EXAMINED, TWO OF THE
EXPERTS AT CONSIDERABLE LENGTH.  ON THE SIXTH TRIAL DAY, COUNSEL FOR
THE GOVERNMENT AND FOR THE DEFENSE ADDRESSED THE JURY.  NEITHER IN
THESE EXHAUSTIVE CLOSING STATEMENTS NOR IN THE COURT'S EXTENDED CHARGE
WAS ANY REFERENCE MADE TO THE TWO QUESTIONS, ASKED SEVERAL DAYS BEFORE
AND, IN EFFECT, UNANSWERED, WHICH ARE NOW ASSIGNED AS PREJUDICIAL
ERROR.  THE JURY RETIRED, DELIBERATED, AND FOUND THE DEFENDANT GUILTY. 

ON THE TOTALITY OF THIS RECORD, WITH SOLICITOUS REGARD FOR THE HEAVY
OBLIGATION WHICH RESTS UPON US IN A CAPITAL CASE, I CANNOT BUT CONCLUDE
THAT THE PROSECUTOR'S QUESTIONS CONCERNING STEWART'S PRIOR FAILURES TO
TESTIFY ARE OF THAT CLASS OF ERRORS "WHICH DO NOT AFFECT THE
SUBSTANTIAL RIGHTS OF THE PARTIES," AND WHICH, THEREFORE, THIS COURT,
BY VIRTUE OF AN ACT OF CONGRESS, IS UNDER DUTY TO DISREGARD.  40 STAT.
1181 (1919), IN ITS PRESENT FORM 63 STAT. 105, 28 U.S.C. SEC. 2111. 
THIS IS SO IN LIGHT OF A NUMBER OF CONSIDERATIONS, NONE OF WHICH VIEWED
IN ISOLATION MIGHT BE DETERMINATIVE, BUT WHOSE SUM - IN THE WHOLE
CONTEXT OF THE TRIAL - CONVINCES ME THAT THE COURT'S CONJECTURES OF
PREJUDICE ARE CHIMERICAL. 

FIRST, STEWART NEVER INTELLIGIBLY ANSWERED THE QUESTIONS.  THE JURY
WAS NOT TOLD AND DID NOT KNOW AS A FACT THAT HE HAD NOT PREVIOUSLY
TAKEN THE STAND.  THE COURT NOW FINDS THAT THE JURY MAY NEVERTHELESS
HAVE INFERRED THE INFORMATION FROM THE LEADING FORM OF THE PROSECUTOR'S
QUESTIONS.  BUT THIS CONCLUSION SHOULD NOT BE REACHED MERELY ON THE
BASIS OF THE BROAD GENERALIZATION THAT "SUCH AN INFERENCE WILL IN ALL
LIKELIHOOD BE DRAWN FROM LEADING QUESTIONS OF THIS KIND."  SUCH AN
ABSTRACTION DOES NOT GET US TO THE HEART OF THE QUESTION BEFORE US.
THAT QUESTION, IN ONE ASPECT, IS WHETHER IT IS LIKELY THAT THIS JURY IN
THE CIRCUMSTANCES OF THIS CASE DREW THE INFERENCE FROM THIS LEADING
QUESTION.  IT IS NOT ONLY NOT LIKELY, BUT OVERWHELMINGLY UNLIKELY. 

THE QUESTION WAS NOT PRESSED OR PERSISTED IN BY THE PROSECUTOR SO AS
TO CONCENTRATE THE JURY'S ATTENTION ON IT AS AN ASSERTION OF FACT.  IT
WAS ONCE REPEATED - WHEN STEWART ASKED "WHAT?"  - AND THEN DROPPED.  IT
WAS ASKED IN A SETTING IN WHICH IT IS NOT TO BE ASSUMED, BECAUSE MOST
IMPROBABLE, THAT THE JURY TOOK IN AND PAID HEED TO THE CONTENT OF THE
PROSECUTOR'S QUESTIONS AS SUCH, PARTICULARLY THE ONE NOW SO INFLATED IN
IMPORTANCE.  ON THE STAND WAS A WITNESS WHO HAD JUST TESTIFIED THAT HE
WAS THE MASTER AND THE MONKEY WITH THE TAIL AND THAT HE HAD BEEN TOLD
BY GOD TO CONQUER AND KILL.  HIS RESPONSES APPEARED RAVING AND
INCOHERENT.  THE ONLY SIGNIFICANCE OF HIS TESTIMONY, OF COURSE, WAS HIS
DEMEANOR, AND IT WAS UPON THE MANNER AND CHARACTER OF HIS RESPONSES,
NOT UPON THE SUBJECTS INQUIRED INTO, THAT THE JURY CAN PLAUSIBLY BE
SUPPOSED TO HAVE FOCUSED.  THE OFFENDING QUESTION FOLLOWED A SERIES OF
OTHERS - "YOU CAN SEE ME, CAN'T YOU, WILLIE?"  "  ... WILLIE, DO YOU
KNOW A DR. WILLIAMS?"  "DO YOU KNOW A DEPUTY MARSHAL BY THE NAME OF
BALLINGER?"  - WHICH HAD ABSOLUTELY NO SIGNIFICANCE OF CONTENT, EXCEPT
INSOFAR AS THEY PRODDED THE WITNESS TO RESPOND.  THERE IS NO REASON TO
THINK THAT THE JURY COULD HAVE REGARDED THE QUESTIONS CONCERNING
PREVIOUS FAILURE TO TESTIFY ANY DIFFERENTLY, OR ATTRIBUTED SPECIAL
SIGNIFICANCE TO THEM.  IN ANY EVENT, ASSUMING THAT THE JURY WERE GIVEN
TO PONDERING SUBTLE INFERENCES IN THE FACE OF THIS MANIFEST MADMAN,
THEY COULD HAVE LEARNED NO MORE FROM THE PROSECUTOR'S QUESTIONS THAN
WHAT STEWART'S OWN COUNSEL HAD ALREADY ELICITED.  THE JURY KNEW THAT
THIS DEFENDANT HAD BEEN TRIED BEFORE BECAUSE TESTIMONY FROM PRIOR
TRIALS HAD BEEN READ TO THEM.  YET DEFENSE COUNSEL ASKED STEWART ON
DIRECT EXAMINATION:  "HAVE YOU EVER TAKEN AN OATH?"  AND STEWART
ANSWERED:  "NOT THAT I KNOWS OF." 

EVEN HAD THE JURORS NOT BEEN ABSORBED BY THE EYECATCHING SPECTACLE OF
STEWART ON THE STAND, AND EVEN HAD THE UNANSWERED QUESTIONS BEEN
ANSWERED, THE INFERENCE ATTRIBUTED TO THE JURY BY THE COURT WOULD
HARDLY HAVE BEEN A PROBABLE ONE.  FOR THE PREJUDICE WHICH THE COURT
CONCEIVES DOES NOT ARISE FROM THE SIMPLE KNOWLEDGE THAT STEWART HAD NOT
PREVIOUSLY TESTIFIED.  IT ARISES ONLY UPON THE SUPPOSITION THAT THE
JURY INDULGED CONJECTURES CONCERNING THE REASONS FOR HIS NOT
TESTIFYING, AND UPON THE FURTHER SUPPOSITION THAT, IN THE COURSE OF
THOSE CONJECTURES, IT REJECTED ALTERNATIVES FAVORABLE TO THE DEFENSE -
FOR EXAMPLE, THAT STEWART, BEING INSANE, CAPRICIOUSLY REFUSED TO GO ON
THE STAND - AND FIXED ON THE EXPLANATION THAT STEWART WAS SANE AT THE
TIME OF THE EARLIER TRIALS.  PERHAPS, WERE THERE NOTHING ELSE IN THIS
CASE, THIS CHAIN OF SUPPOSITIONS MIGHT BE ENTERTAINABLE.  BUT THE
WEAKNESS OF ITS LINKS IS ONE MORE FACTOR MAKING IT IMPLAUSIBLE TO FIND
PREJUDICE HERE. 

FINALLY, THESE TWO CONCEDEDLY IMPERMISSIBLE QUESTIONS - MORE
ACCURATELY, A SINGLE QUESTION ONCE REPEATED AT THE WITNESS' REQUEST -
MUST BE VIEWED IN THE PERSPECTIVE OF THE PROCEEDINGS AS A WHOLE.  ASKED
AND LEFT UNANSWERED ON THE THIRD DAY OF A SIX-DAY TRIAL AT WHICH
EIGHTEEN WITNESSES TESTIFIED AND THE TESTIMONY OF EIGHT MORE WAS READ
TO THE JURY, THE QUESTIONS WERE NEVER AGAIN ADVERTED TO. THEY HAD BEEN
PRECEDED BY A SERIES OF WHAT THE JURY CANNOT BUT HAVE FOUND STARTLING
ACCOUNTS OF STEWART'S BEHAVIOR, WERE CONTEMPORANEOUS WITH A GLARING
DISPLAY OF THE SYMPTOMS OF MADNESS, AND WERE FOLLOWED BY A TWO-DAY
BATTLE OF EXPERT WITNESSES - ONE ACCOUTERED WITH BLACKBOARD AND CHALK -
ALL ADDRESSED TO THE QUESTION OF STEWART'S SANITY.  IT WEAVES
SOLIDITIES OUT OF GOSSAMER ASSUMPTIONS TO ATTRIBUTE TO FLEETING AND
ARGUMENTATIVE IMPLICATIONS OF FACT IN A LEADING QUESTION AN IMPACT SO
PONDEROUS AS TO DISCREDIT AND REVERSE A JURY'S VERDICT IN THE CONTEXT
OF A RECORD THAT IMPRESSIVELY CARRIES THE CONTRARY MEANING.  THE JURY
WAS NOT LEFT TO PICK AT SUCH THREADS IN ORDER TO WEAVE THE CORDS OF ITS
VERDICT.  ON BOTH SIDES - BY BOTH THE PROSECUTION AND THE DEFENSE -
STRONG, HEAVY CABLES WERE FURNISHED IT.  TO SUPPOSE THAT, EVEN IF
NOTICED WHEN ASKED AND MADE THE OCCASION OF IMPLAUSIBLE DEDUCTIONS,
THESE QUESTIONS AMOUNTED TO MORE THAN A WHISPER DROWNED IN THE
COMPULSION OF EAR-RESOUNDING TESTIMONY, SEEMS TO ME A STRIKING EXAMPLE
OF PURSUING A QUEST FOR ERROR. 

MORE THAN A HALF-CENTURY AGO, WILLIAM H. TAFT, REFLECTING HIS WIDE
EXPERIENCE EVEN BEFORE HE BECAME CHIEF JUSTICE, LAID THIS CHARGE AT THE
DOOR OF THE COURTS: 

"  ...  THE  ...  DISPOSITION ON THE PART OF THE COURTS TO THINK THAT
EVERY PROVISION OF EVERY RULE OF LAW IN FAVOR OF THE DEFENDANT IS ONE
TO BE STRICTLY ENFORCED, AND EVEN WIDENED IN ITS EFFECT IN THE INTEREST
OF THE LIBERTY OF THE CITIZEN, HAS LED COURTS OF APPEAL TO A DEGREE OF
REFINEMENT IN UPHOLDING TECHNICALITIES IN FAVOR OF DEFENDANTS, AND IN
REVERSING CONVICTIONS THAT RENDER ONE WHO HAS HAD PRACTICAL KNOWLEDGE
OF THE TRIAL OF CRIMINAL CASES MOST IMPATIENT. 

"  ...  WHEN A COURT OF HIGHEST AUTHORITY IN THIS COUNTRY THUS
INTERPOSES A BARE TECHNICALITY BETWEEN A DEFENDANT AND HIS JUST
CONVICTION, IT IS NOT TOO MUCH TO CHARGE SOME OF THE LAXITY IN OUR
ADMINISTRATION OF THE CRIMINAL LAW TO A PRONENESS ON THE PART OF COURTS
OF LAST RESORT TO FIND ERROR AND TO REVERSE JUDGMENTS OF CONVICTION." 
(FN5) 

I AM CONVINCED THAT TODAY'S DECISION FALLS WITHIN THESE WEIGHTY
STRICTURES.  TO EXPLAIN THE JURY'S REJECTION OF STEWART'S SOLE DEFENSE
OF INSANITY, WITH ITS CONSEQUENT FINDING OF GUILT, ON THE GROUND, AS A
MATTER OF ASSUMPTION, THAT THE JURY WAS INFLUENCED BY THE TWO QUESTIONS
ON WHICH THE VERDICT IS REVERSED HERE, IS TO SHOW LESS RESPECT FOR THE
JURY SYSTEM THAN DO THE OPPONENTS OF THE SYSTEM.  (FN6)  ONE DOES NOT
HAVE TO ACCEPT ALL THE ENCOMIA WHICH OPINIONS OF THIS COURT HAVE
SHOWERED ON THE JURY'S FUNCTIONS AND VALUES, NOT TO ATTRIBUTE
FECKLESSNESS TO THE TWELVE MEN AND WOMEN CHOSEN TO SIT IN THIS MURDER
CASE.  TO MAKE SUCH ATTRIBUTION IS TO BE UNCONSCIOUSLY BETRAYED, AS
SOPHISTICATES SOMETIMES ARE, INTO A DEPRECIATION OF THE CAPACITIES OF
THE RUN OF MEN.  I DISSENT FROM THE JUDGMENT OF THE COURT. 

FN1  HONIKMAN'S DAUGHTER TOOK THE STAND AND TESTIFIED AT THE TRIAL. 
A TRANSCRIPTION OF HER MOTHER'S TESTIMONY AT A PREVIOUS TRIAL,
CORROBORATING THE DAUGHTER'S ACCOUNT OF THE KILLING, WAS READ TO THE
JURY. 

FN2  THIS REMARK WAS MADE AT THE BENCH, OUT OF THE HEARING OF THE
JURY. 

FN3  IN ADDITION TO THE TESTIMONY OF MRS. HONIKMAN, THAT OF TWO OTHER
WITNESSES WAS READ TO THE JURY.  THE REMAINING SEVEN APPEARED AT THIS
TRIAL. 

FN4  THREE OF THESE EIGHT WITNESSES TOOK THE STAND.  IN THE CASE OF
THE OTHER FIVE, EXCERPTS FROM THEIR TESTIMONY AT PRIOR TRIALS WERE
READ. 

FN5  TAFT, THE ADMINISTRATION OF CRIMINAL LAW, 15 YALE L.J. 1, 15
(1905). 

FN6  SEE, E.G., FRANK, COURTS ON TRIAL (1949), CC. VIII, IX. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE WHITTAKER JOINS,
DISSENTING. 

IT MAY BE THAT WILLIE LEE STEWART "HAD AN INTELLIGENCE LEVEL IN THE
MORONIC CLASS," BUT HE CAN LAUGH UP HIS SLEEVE TODAY FOR HE HAS AGAIN
MADE A LAUGHINGSTOCK OF THE LAW.  THIS MAKES THE THIRD JURY VERDICT OF
GUILT - EACH WITH A MANDATORY DEATH PENALTY - THAT HAS BEEN SET ASIDE
SINCE 1953.  IT WAS IN THAT YEAR THAT WILLIE WALKED INTO HARRY
HONIKMAN'S LITTLE GROCERY STORE HERE IN WASHINGTON, BOUGHT A BAG OF
POTATO CHIPS AND A SOFT DRINK, CONSUMED THEM IN THE STORE, ORDERED
ANOTHER BOTTLE OF SODA, AND THEN PULLED OUT A PISTOL AND KILLED
HONIKMAN RIGHT BEFORE THE EYES OF HIS WIFE AND YOUNG DAUGHTER.  THE
VERDICT IS NOW SET ASIDE BECAUSE OF SOME HYPOTHETICALS AS TO WHAT THE
JURY MIGHT HAVE INFERRED FROM A SINGLE QUESTION ASKED WILLIE AS TO
WHETHER HE HAD TESTIFIED AT HIS OTHER TRIALS.  IN MY VIEW, NONE OF
THESE CONJECTURES IS SUFFICIENTLY PERSUASIVE TO BE SAID TO CAST DOUBT
ON THE VALIDITY OF THE JURY'S DETERMINATION.  LET US FIRST REVIEW THE
SETTING OF THE FATAL QUESTION IN THE TRIAL. 

THE JURY HEARD EVIDENCE FOR SIX DAYS AND FROM SOME 26 WITNESSES.  THE
PRINTED RECORD HERE, WHICH IS ONLY PARTIAL, CONSISTS OF 400 PAGES. 
WILLIE STEWART'S "GIBBERISH" COMPRISES NINE PAGES, REPRESENTING PERHAPS
SOME 20 MINUTES OF TESTIMONY.  IT CAME DURING THE THIRD DAY OF THE
TRIAL.  MR. CAREY, WILLIE'S COUNSEL, HAD PLACED HIM ON THE STAND.  HE
HAD ASKED ON DIRECT EXAMINATION, "HAVE YOU EVER TAKEN AN OATH?"  WILLIE
REPLIED, "NOT THAT I KNOWS OF."  WILLIE WAS ALSO ASKED BY HIS COUNSEL,
"DID YOU EVER STAND TRIAL BEFORE THIS TRIAL FOR THE MURDER OF HARRY
HONIKMAN?"  HE ANSWERED, "WELL, YOU TALK.  YOU JUST GO AHEAD AND
EXPLAIN YOURSELF.  HAVE YOU EVER STAND TRIAL?  GO AHEAD.  DON'T ASK ME.
I DON'T KNOW."  MR. CAREY HAD NOT REPRESENTED WILLIE ON THE OTHER
TRIALS.  CAREY THEN ASKED, "WERE YOU EVER TRIED FOR FIRST DEGREE MURDER
BEFORE THIS TIME?"  AND WILLIE REPLIED, "I AIN'T NEVER BEEN TRIED.  I
AIN'T NEVER BEEN TRIED."  WITH THESE OPENINGS MADE BY CAREY, THE
GOVERNMENT, ON CROSS-EXAMINATION, ASKED THE SAME QUESTIONS.  NO ISSUE
IS MADE OF THE EXAMINATION RELATING TO THE FACT OF PRIOR TRIALS.  THEN
CAME THE QUESTION WHICH HAS BROUGHT ON THIS REVERSAL:  "THIS IS THE
FIRST TIME YOU HAVE GONE ON THE STAND, ISN'T IT, WILLIE?"  THERE WAS NO
OBJECTION.  WILLIE ANSWERED, "WHAT?"  AND THE GOVERNMENT'S COUNSEL
AGAIN ASKED THE SAME QUESTION IN IDENTICAL WORDS.  STILL THERE WAS NO
OBJECTION.  WILLIE ANSWERED:  "I AM ALWAYS THE STAND; I AM EVERYTHING,
I DONE TOLD YOU."  THEREAFTER WILLIE WAS EXCUSED AS A WITNESS,
WHEREUPON HIS COUNSEL APPROACHED THE BENCH AND MADE HIS MOTION FOR
MISTRIAL.  HE ASKED FOR NO CURATIVE INSTRUCTION.  COUNSEL HAD SET HIS
TRAP, LAIN IN WAIT AND WAS NOW DEMANDING ALL OR NOTHING.  THE DEMAND
FOR A MISTRIAL WAS DENIED. 

A GOVERNMENT WITNESS THEN TESTIFIED THAT ON THE VERY NIGHT OF THE
MURDER WILLIE WAS PLAYING CARDS, THAT HE EXHIBITED THE PISTOL USED IN
THE SLAYING TO ONE OF THE PLAYERS, THAT HE LEFT THE CARD GAME BEFORE
THE HOUR OF THE MURDER, AND THAT HE RETURNED TO THE CARD GAME AFTER THE
HOUR OF THE MURDER AND CONTINUED PLAYING CARDS UNTIL ABOUT 2 A.M.  THIS
WITNESS TESTIFIED, "HE (WILLIE) SEEMED NORMAL TO ME."  THIS WAS
FOLLOWED BY TESTIMONY OF AN AIDE AT ST. ELIZABETHS HOSPITAL AND A GUARD
AT THE DISTRICT JAIL AS TO HIS CONDUCT ALL DURING THE PERIOD AFTER HIS
ARREST UP UNTIL A FEW WEEKS BEFORE HIS THIRD TRIAL.  ALL SAID THAT HE
WAS PERFECTLY NORMAL; THAT HE TALKED FREELY AND UNDERSTOOD THE
CONVERSATION; THAT HE USED A BIBLE AND A DICTIONARY, PLAYED BID WHIST
AND CHECKERS AND WAS A "MODEL" PATIENT OR PRISONER.  HIS JAIL FILE
REVEALED THAT HE MAILED LETTERS TO HIS WIFE AND SISTER-IN-LAW, BOTH OF
WHOM TESTIFIED IN HIS BEHALF, DURING APRIL, OCTOBER AND NOVEMBER, 1953;
JULY, AUGUST, SEPTEMBER AND OCTOBER 1954; OCTOBER, NOVEMBER AND
DECEMBER, 1955; JANUARY, FEBRUARY AND MARCH, 1956; AND OCTOBER,
NOVEMBER AND DECEMBER, 1957; AND FORWARDED HIS WIFE $10 ON EACH OF TWO
OCCASIONS, ONCE IN 1954 AND THE OTHER IN 1955.  ON SEVERAL OCCASIONS HE
SENT MEMO REQUESTS FOR CONFERENCES WITH JAIL OFFICIALS.  HE ASKED FOR
WORK TO PASS THE TIME WHILE IN THE DISTRICT JAIL AND ACTUALLY PUT IN
MANY HOURS WORKING DAY-IN AND DAY-OUT DURING THE TIME OF HIS CUSTODY. 
HE FIRST DID CLEANING, THEN PLUMBING, AND FINALLY WAS CONTINUALLY
ENGAGED IN PAINTING CELL BLOCKS THROUGHOUT THE JAIL.  IN 1957 HIS SON
WAS ILL AND HE REQUESTED PERMISSION, WHICH WAS GRANTED, TO VISIT HIM IN
CUSTODY.  THESE WITNESSES ALL RELATED THAT WILLIE "ACTED NORMAL" DURING
THIS PERIOD.  IN FACT, HIS ONLY EXPERT WITNESS, A PSYCHIATRIST,
TESTIFIED THAT HE COULD NOT DECIDE IN JUNE 1953 WHEN HE EXAMINED WILLIE
WHETHER OR NOT HE WAS SUFFERING FROM A MENTAL DISEASE.  HOWEVER, HE
STATED THAT AFTER TALKING WITH WILLIE'S SISTER-IN-LAW AND HEARING THE
STORY OF WILLIE'S BACKGROUND, HE DECIDED THAT WILLIE SUFFERED A MANIC
DEPRESSIVE PSYCHOSIS.  THE THREE GOVERNMENT PSYCHIATRISTS, TWO OF WHOM
EXAMINED HIM IN MARCH 1953, FOUND HIM "PERFECTLY NORMAL."  HE ANSWERED
THEIR QUESTIONS FREELY, WENT THROUGH VARIOUS TESTS COOPERATIVELY AND
WAS FOUND TO BE IN "AVERAGE NORMAL RANGE OF INTELLIGENCE."  EACH AGREED
THAT WILLIE WAS LATER MALINGERING, I.E., FEIGNING MENTAL ILLNESS.  THIS
BEGAN SHORTLY BEFORE HIS THIRD TRIAL.  IN ADDITION, WILLIE HAD SERVED
TWO ENLISTMENTS IN THE ARMY BEFORE 1953.  ON DISCHARGE HE WAS FOUND
"ILLITERATE BUT MENTALLY ADEQUATE." 

IN THE LIGHT OF THIS TESTIMONY, I FIND THE HYPOTHESES OF THE COURT,
WITH DUE DEFERENCE, ENTIRELY UNREALISTIC, IF NOT COMPLETELY ABSURD. 
THE CRUCIAL DATE WAS THE TIME OF THE KILLING, 1953, NOT THE DATE OF THE
THIRD TRIAL, 1958.  DESPITE THIS AND THE UNCONTRADICTED EVIDENCE,
DETAILED ABOVE, OF WILLIE'S NORMALITY ALL DURING THE PERIOD 1953-1958,
THE COURT ASSUMES THAT, FROM THE ASKING OF THE QUESTION BY THE
PROSECUTOR, THE JURY BELIEVED THAT WILLIE HAD NOT TESTIFIED IN THE TWO
PRIOR TRIALS AND THEREFORE THE JURY "MIGHT" HAVE INFERRED THAT (1)
WILLIE "ELECTED TO FEIGN THIS 'TESTIMONY' (GIBBERISH) OUT OF
DESPERATION BROUGHT ON BY HIS FAILURE TO GAIN ACQUITTAL" PREVIOUSLY; OR
(2) THE JURY "MIGHT HAVE THOUGHT" WILLIE SUFFERED FROM A MENTAL DISEASE
BUT "CONCLUDED THAT IT IS UNLIKELY THAT A DISEASE THAT HAD MANIFESTED
ITSELF ONLY ONE OUT OF THREE TIMES FOR EXHIBITION AT TRIAL WAS ACTIVE
AT THE OCCASION OF THE HOMICIDE"; OR (3) THE JURY "MIGHT HAVE THOUGHT"
THAT THE CONDITION WAS WORSENING AS INDICATED BY HIS ACTION AT THE
TRIAL. 

IN THE FIRST PLACE, IT SEEMS TO ME A VIOLENT ASSUMPTION TO SAY THAT
THE JURY BELIEVED, SOLELY FROM THE GOVERNMENT'S QUESTION ON CROSS
EXAMINATION, THAT WILLIE HAD NOT TESTIFIED AT THE PRIOR TRIALS,
ESPECIALLY SINCE HE HAD ALREADY TESTIFIED IN RESPONSE TO A QUERY FROM
HIS OWN COUNSEL ON DIRECT EXAMINATION THAT HE HAD NEVER BEEN UNDER
OATH.  MOREOVER, IN OPENING UP THE ISSUE OF PRIOR TRIALS, THE DEFENSE
COUNSEL WAS OBVIOUSLY TRYING TO LEAVE THE IMPRESSION WITH THE JURY THAT
THEY HAD NOT CONCLUDED IN GUILTY VERDICTS.  WHEN HE RECEIVED ANSWERS
SUCH AS "YOU TALK" - "YOU JUST GO AHEAD AND EXPLAIN" - "DON'T ASK ME,"
HE REPEATED THE QUESTION.  AND THE GOVERNMENT COUNSEL GOT LIKE ANSWERS
TO HIS QUESTIONS:  "I DON'T CARE HOW MANY OCCASIONS," ETC.  AND THE
ANSWER TO THE QUESTION FOUND PREJUDICIAL WAS FIRST A "WHAT?"  AND UPON
ITS REPETITION, "I AM ALWAYS THE STAND."  USING THE MAJORITY'S
SPECULATIVE APPROACH, IT IS THE MORE LIKELY THAT THE JURY THOUGHT FROM
THOSE QUESTIONS THAT THE PREVIOUS TRIALS RESULTED IN HUNG JURIES AND
NEVER SPECULATED UPON THE NICE DISTINCTIONS THE COURT MAKES AS TO
WILLIE'S DEMEANOR.* THE UNCONTRADICTED EVIDENCE WAS THAT HE WAS A
FAKER.  THEY NEEDED NO INFERENCE TO SO CONCLUDE.  DISCOUNTING THE
SPECULATIVE EFFECTS OF HIS OWN COUNSEL'S QUESTION ON OATHS, AND THE
GOVERNMENT'S QUESTION ON TESTIFYING, HIS ANSWERS THEMSELVES MIGHT WELL
HAVE LED THE JURY TO BELIEVE THAT HE DID TESTIFY ON THE PREVIOUS
TRIALS.  IN ANY EVENT, A SIMPLE INSTRUCTION TO THE JURY TO CONSIDER
THIS TRIAL ALONE, TO STRIKE OUT OF ITS MINDS AND GIVE NO CONSIDERATION
WHATEVER TO ANY REFERENCE TO A FORMER TRIAL OR TO ANY EVENT OR THING
THAT MIGHT OR MIGHT NOT HAVE HAPPENED THERE, WOULD HAVE CERTAINLY BEEN
SUFFICIENT.  BUT WILLIE DID NOT ASK FOR THIS.  HE WANTED "ALL OR NONE"
AND THE COURT IS GIVING HIM "ALL."  BUT, RETURNING TO THE HYPOTHESES,
WHETHER OR NOT WILLIE "ELECTED" TO FEIGN HIS TESTIMONY WAS NOT THE
QUESTION.  THE JURY'S CONCERN WAS WHETHER HE DID FEIGN IT, AND THE
UNCONTRADICTED TESTIMONY WAS THAT HE DID SO.  SECONDLY, THE ONLY
TESTIMONY AS TO WILLIE'S ACTIVITY ON THE VERY NIGHT OF THE KILLING WAS
THAT OF THE CARD PLAYER.  HE STATED THAT WILLIE "SEEMED NORMAL TO ME." 
HOW THE JURY MIGHT INFER FROM THE PROSECUTOR'S QUESTION THAT WILLIE HAD
A MENTAL DISEASE BUT IT WAS INACTIVE AT THE TIME OF THE MURDER IS
BEYOND ME.  EVERY WITNESS TESTIFIED TO THE CONTRARY - SAVE ONE
PSYCHIATRIST - AND EVEN HE SAID THAT HIS EXAMINATION OF WILLIE WAS
INCONCLUSIVE.  THE JURY KNEW IT HAD BEEN FIVE YEARS SINCE THE KILLING
AND THAT BOTH LAY AND MEDICAL EVIDENCE - UNCONTRADICTED - WAS THAT
WILLIE WAS NORMAL DURING ALL THAT PERIOD.  LASTLY, AS TO THE DISEASE
WORSENING, THAT POSSIBILITY HAD NO RELEVANCY TO THE CONDITION IN 1953
AT THE TIME OF THE KILLING. 

*IF THERE WAS ANY IMPRESSION RELATING TO WILLIE'S FAILURE TO TAKE THE
STAND IN PRIOR TRIALS, IT WAS SURELY DUE TO THE QUESTIONING BY HIS OWN
COUNSEL ON THE ISSUE OF OATHS. 

I MIGHT ADD THAT, AS I READ THE GOVERNMENT'S BRIEF, IT CONCEDED ONLY
THAT THE QUESTION ASKED WILLIE "WAS OF BUT NEGLIGIBLE IMPORTANCE TO THE
GOVERNMENT'S CASE."  THE SOLE ISSUE, IT SAID, WAS WHETHER THE QUESTION
WAS PREJUDICIAL.  THIS DOES NOT LICENSE THE COURT TO FIND OTHER AND
FURTHER CONCESSIONS AS TO THE RAFFEL AND GRUNEWALD CASES.  NOR DO I
FIND THE GOVERNMENT CONTENDING, IN ITS POINT THAT NO PREJUDICE RESULTED
FROM THE QUESTION, THAT "THE JURY MAY NOT EVEN HAVE HEARD THE IMPROPER
QUESTION."  TO SO STATE ITS ATTITUDE MAKES THE GOVERNMENT APPEAR
RIDICULOUS.  ITS TRUE POSITION WAS THAT ONE COULD NOT ASSUME, AS THE
COURT DOES, THAT "THE JURY NOTED AND FOCUSED ATTENTION ON A QUESTION
GIVEN SO LITTLE EMPHASIS THAT IT WAS OVERLOOKED BY THE TRIAL JUDGE."  I
ADD THAT IN THE LIGHT OF THE LONG TRIAL, THE UNCONTRADICTED EVIDENCE AS
TO WILLIE'S MALINGERING AND THE FACT THAT THE QUESTION WAS NEVER
MENTIONED AGAIN DURING THE REMAINING THREE DAYS OF THE TRIAL, THE JURY
DID NOT NEED, NOR AS A MATTER OF RELEVANCY WAS IT ABLE, TO GO THROUGH
THE MENTAL GYMNASTICS THE COURT SUPPOSES. 

I NOTE THAT THE COURT DOES ADOPT ONE POINT MADE BY THE GOVERNMENT. 
IT SAYS "THAT IT IS REGRETTABLE WHEN THE CONCURRENT FINDINGS OF 36
JURORS ARE NOT SUFFICIENT FINALLY TO TERMINATE A CASE."  I, TOO, AGREE
WITH THAT, BUT IN VIEW OF THE COURT'S APPROACH I WOULD ADD THAT ITS
REGRET IS TEMPERED BY ITS WILLINGNESS TO INDULGE IN SUCH HYPOTHESIZING
AS TO EFFECTIVELY REMOVE FROM OUR LAW THE CONCEPT OF HARMLESS ERROR IN
CAPITAL CASES. 
..END :






















GOLDBERG V. WHITAKER HOUSE COOPERATIVE, INC. 366 U.S. 28 


NO. 274.  ARGUED MARCH 30, 1961.  - DECIDED APRIL 24, 1961.  - 275 F.2D
362, REVERSED. 


RESPONDENT IS A COOPERATIVE INCORPORATED TO MANUFACTURE, SELL AND DEAL
IN KNITTED, CROCHETED AND EMBROIDERED GOODS.  ITS MEMBERS MAKE SUCH
GOODS IN THEIR HOMES AND DELIVER THEM TO THE COOPERATIVE, WHICH PAYS
THEM PERIODICALLY "AN ADVANCE ALLOWANCE" PENDING SALE OF THE GOODS AND
DISTRIBUTION OF ANY NET PROCEEDS TO THE MEMBERS.  THE MEMBERS
MANUFACTURE WHAT THE COOPERATIVE DESIRES, RECEIVE THE COMPENSATION IT
DICTATES, AND MAY BE EXPELLED FROM MEMBERSHIP FOR SUBSTANDARD WORK OR
FAILURE TO OBEY THE COOPERATIVE'S REGULATIONS.  HELD:  THE COOPERATIVE
IS AN "EMPLOYER" AND ITS MEMBERS ARE "EMPLOYEES" WITHIN THE MEANING OF
SEC. 3 OF THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE
COOPERATIVE IS SUBJECT TO THE MINIMUM-WAGE AND RECORD-KEEPING
PROVISIONS OF THE ACT AND THE REGULATIONS PRESCRIBED BY THE
ADMINISTRATOR UNDER SEC. 11(D) "TO PREVENT THE CIRCUMVENTION OR EVASION
OF AND TO SAFEGUARD THE MINIMUM WAGE RATE" PRESCRIBED BY THE ACT.  PP.
28-33. 

GOLDBERG, SECRETART OF LABOR, V. WHITAKER HOUSE COOPERATIVE, INC., ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT COOPERATIVE WAS ORGANIZED IN 1957 UNDER THE LAWS OF MAINE;
AND WE ASSUME IT WAS LEGALLY ORGANIZED.  THE QUESTION IS WHETHER IT IS
AN "EMPLOYER" AND ITS MEMBERS ARE "EMPLOYEES" WITHIN THE MEANING OF THE
FAIR LABOR STANDARDS ACT OF 1938, SEC. 3, 52 STAT.  1060, AS AMENDED,
29 U.S.C. SEC. 203.  THE QUESTION IS RAISED BY A SUIT FILED UNDER SEC.
17 OF THE ACT BY PETITIONER TO ENJOIN RESPONDENT FROM VIOLATING THE
PROVISIONS OF THE ACT CONCERNING MINIMUM WAGES (SEC. 6), RECORD-KEEPING
(SEC. 11(C)) AND THE REGULATION OF INDUSTRIAL HOMEWORK (SEC. 11(D)). 
AND SEE SEC. 15(A)(5).  THE DISTRICT COURT DENIED RELIEF.  170 F. SUPP.
743.  THE COURT OF APPEALS AFFIRMED BY A DIVIDED VOTE.  275 F.2D 362. 
THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE GRANTED (364
U.S. 861) BECAUSE OF THE IMPORTANCE OF THE PROBLEM IN THE
ADMINISTRATION OF THE ACT. 

THE CORPORATE PURPOSE OF THE RESPONDENT AS STATED IN ITS ARTICLES IS
TO MANUFACTURE, SELL, AND DEAL IN "KNITTED, CROCHETED, AND EMBROIDERED
GOODS OF ALL KINDS."  IT HAS A GENERAL MANAGER AND A FEW EMPLOYEES WHO
ENGAGE IN FINISHING WORK, I.E., TRIMMING AND PACKAGING.  THERE ARE SOME
200 MEMBERS WHO WORK IN THEIR HOMES.  A HOMEWORKER WHO DESIRES TO
BECOME A MEMBER BUYS FROM RESPONDENT A SAMPLE OF THE WORK SHE IS
SUPPOSED TO DO, COPIES THE SAMPLE, AND SUBMITS IT TO RESPONDENT.  IF
THE WORK IS FOUND TO BE SATISFACTORY, THE APPLICANT CAN BECOME A MEMBER
BY PAYING $3 AND AGREEING TO THE PROVISIONS OF THE ARTICLES AND
BYLAWS.  MEMBERS WERE PROHIBITED FROM FURNISHING OTHERS WITH ARTICLES
OF THE KIND DEALT IN BY RESPONDENT.  (FN1)  THEY ARE REQUIRED TO REMAIN
MEMBERS AT LEAST A YEAR.  THEY MAY, HOWEVER, BE EXPELLED AT ANY TIME BY
THE BOARD OF DIRECTORS IF THEY VIOLATE ANY RULES OR REGULATIONS OR IF
THEIR WORK IS SUBSTANDARD.  (FN2)  MEMBERS ARE NOT LIABLE FOR
RESPONDENT'S DEBTS; THEY MAY NOT BE ASSESSED; EACH HAS ONE VOTE; THEIR
CERTIFICATES ARE NOT TRANSFERRABLE; EACH MEMBER CAN OWN ONLY ONE
MEMBERSHIP; NO DIVIDENDS OR INTEREST IS PAYABLE ON THE CERTIFICATE
"EXCEPT IN THE MANNER AND LIMITED AMOUNT" PROVIDED IN THE BYLAWS.  THE
BYLAWS PROVIDE THAT "EXCESS RECEIPTS" ARE TO BE APPLIED (1) TO WRITING
OFF "PRELIMINARY EXPENSES"; (2) TO "NECESSARY DEPRECIATION RESERVES";
(3) TO THE ESTABLISHMENT OF A "CAPITAL RESERVE."  THE BALANCE MAY BE
USED IN THE DISCRETION OF THE BOARD OF DIRECTORS "FOR PATRONAGE REFUNDS
WHICH SHALL BE DISTRIBUTED ACCORDING TO THE PERCENTAGE OF WORK
SUBMITTED TO THE COOPERATIVE FOR SALE."  MEMBERS ARE PAID EVERY MONTH
OR EVERY OTHER MONTH FOR WORK SUBMITTED FOR SALE ON A RATE-PER-DOZEN
BASIS.  THIS PAYMENT IS CONSIDERED TO BE "AN ADVANCE ALLOWANCE" UNTIL
THERE IS A DISTRIBUTION OF "EXCESS RECEIPTS" TO THE MEMBERS "ON THE
BASIS OF THE AMOUNT OF GOODS WHICH EACH MEMBER HAS SUBMITTED TO
RESPONDENT FOR SALE." 

BY SEC. 11(D) OF THE ACT THE ADMINISTRATOR IS AUTHORIZED TO MAKE
"SUCH REGULATIONS AND ORDERS REGULATING, RESTRICTING, OR PROHIBITING
INDUSTRIAL HOMEWORK AS ARE NECESSARY OR APPROPRIATE TO PREVENT THE
CIRCUMVENTION OR EVASION OF AND TO SAFEGUARD THE MINIMUM WAGE RATE
PRESCRIBED IN THIS ACT."  SECTION 11 (D) WAS ADDED IN 1949 (FN3) AND
PROVIDES THAT "ALL EXISTING REGULATIONS OR ORDERS OF THE ADMINISTRATOR
RELATING TO THE INDUSTRIAL HOMEWORK ARE HEREBY CONTINUED IN FULL FORCE
AND EFFECT." 

THESE REGULATIONS (FN4) PROVIDE THAT NO INDUSTRIAL HOMEWORK, SUCH AS
RESPONDENT'S MEMBERS DO, SHALL BE DONE "IN OR ABOUT A HOME, APARTMENT,
TENEMENT, OR ROOM IN A RESIDENTIAL ESTABLISHMENT UNLESS A SPECIAL
HOMEWORK CERTIFICATE" (FN5) HAS BEEN ISSUED.  RESPONDENT'S MEMBERS HAVE
NO SUCH CERTIFICATES; AND THE QUESTION FOR US IS WHETHER ITS OPERATIONS
ARE LAWFUL WITHOUT THEM AND WITHOUT COMPLIANCE BY RESPONDENT WITH THE
OTHER PROVISIONS OF THE ACT. 

THESE REGULATIONS HAVE A LONG HISTORY.  IN 1939, SHORTLY AFTER THE
ACT WAS PASSED, BILLS WERE INTRODUCED IN THE HOUSE TO PERMIT
HOMEWORKERS TO BE EMPLOYED AT RATES LOWER THAN THE STATUTORY MINIMUM. 
(FN6)  THESE AMDNEMENTS WERE REJECTED.  (FN7)  THEREUPON THE
ADMINISTRATOR ISSUED REGULATIONS GOVERNING HOMEWORKERS; (FN8) AND WE
SUSTAINED SOME OF THEM IN GEMSCO, INC., V. WALLING, 324 U.S. 244,
DECIDED IN 1945.  IN 1949 THE HOUSE ADOPTED AN AMENDMENT WHICH WOULD
HAVE EXEMPTED FROM THE ACT A LARGE GROUP OF HOMEWORKERS.  (FN9)  THE
SENATE BILL CONTAINED NO SUCH EXEMPTION; AND THE CONFERENCE REPORT
REJECTED THE EXEMPTION.  (FN10)  INSTEAD, SEC. 11(D) WAS ADDED,
STRENGTHENING THE AUTHORITY OF THE ADMINISTRATOR TO RESTRICT OR
PROHIBIT HOMEWORK.  (FN11)  STILL LATER RESPONDENT WAS ORGANIZED; AND,
AS WE HAVE SAID, IT MADE NO ATTEMPT TO COMPLY WITH THESE HOMEWORK
REGULATIONS. 

WE THINK WE WOULD BE REMISS, IN LIGHT OF THIS HISTORY, IF WE
CONSTRUED THE ACT LOOSELY SO AS TO PERMIT THIS HOMEWORK TO BE DONE IN
WAYS NOT PERMISSIBLE UNDER THE REGULATIONS.  BY SEC. 3(D) OF THE ACT AN
"EMPLOYER" IS ANY PERSON ACTING "IN THE INTEREST OF AN EMPLOYER IN
RELATION TO AN EMPLOYEE."  BY SEC. 3(E) AN "EMPLOYEE" IS ONE "EMPLOYED"
BY AN EMPLOYER.  BY SEC. 3(G) THE TERM EMPLOY "INCLUDES TO SUFFER OR
PERMIT TO WORK."  WE CONCLUDE THAT THE MEMBERS OF THIS COOPERATIVE ARE
EMPLOYEES WITHIN THE MEANING OF THE ACT. 

THERE IS NO REASON IN LOGIC WHY THESE MEMBERS MAY NOT BE EMPLOYEES. 
THERE IS NOTHING INHERENTLY INCONSISTENT BETWEEN THE COEXISTENCE OF A
PROPRIETARY AND AN EMPLOYMENT RELATIONSHIP.  IF MEMBERS OF A TRADE
UNION BOUGHT STOCK IN THEIR CORPORATE EMPLOYER, THEY WOULD NOT CEASE TO
BE EMPLOYEES WITHIN THE CONCEPTION OF THIS ACT.  FOR THE CORPORATION
WOULD "SUFFER OR PERMIT" THEM TO WORK WHETHER OR NOT THEY OWNED ONE
SHARE OF STOCK OR NONE OR MANY.  WE FAIL TO SEE WHY A MEMBER OF A
COOPERATIVE MAY NOT ALSO BE AN EMPLOYEE OF THE COOPERATIVE.  IN THIS
CASE THE MEMBERS SEEM TO US TO BE BOTH "MEMBERS" AND "EMPLOYEES."  IT
IS THE COOPERATIVE THAT IS AFFORDING THEM "THE OPPORTUNITY TO WORK, AND
PAYING THEM FOR IT," TO USE THE WORDS OF JUDGE ALDRICH, DISSENTING
BELOW.  275 F.2D, AT 366.  HOWEVER IMMEDIATE OR REMOTE THEIR RIGHT TO
"EXCESS RECEIPTS" MAY BE, (FN12) THEY WORK IN THE SAME WAY AS THEY
WOULD IF THEY HAD AN INDIVIDUAL PROPRIETOR AS THEIR EMPLOYER.  (FN13)
THE MEMBERS ARE NOT SELF-EMPLOYED; NOR ARE THEY INDEPENDENT, SELLING
THEIR PRODUCTS ON THE MARKET FOR WHATEVER PRICE THEY CAN COMMAND.  THEY
ARE REGIMENTED UNDER ONE ORGANIZATION, MANUFACTURING WHAT THE
ORGANIZATION DESIRES AND RECEIVING THE COMPENSATION THE ORGANIZATION
DICTATES.  (FN14)  APART FROM FORMAL DIFFERENCES, THEY ARE ENGAGED IN
THE SAME WORK THEY WOULD BE DOING WHATEVER THE OUTLET FOR THEIR
PRODUCTS.  THE MANAGEMENT FIXES THE PIECE RATES AT WHICH THEY WORK; THE
MANAGEMENT CAN EXPEL THEM FOR SUBSTANDARD WORK OR FOR FAILURE TO OBEY
THE REGULATIONS.  THE MANAGEMENT, IN OTHER WORDS, CAN HIRE OR FIRE THE
HOMEWORKERS.  APART FROM THE OTHER CONSIDERATIONS WE HAVE MENTIONED,
THESE POWERS MAKE THE DEVICE OF THE COOPERATIVE TOO TRANSPARENT TO
SURVIVE THE STATUTORY DEFINITION OF "EMPLOY" AND THE REGULATIONS
GOVERNING HOMEWORK.  IN SHORT, IF THE "ECONOMIC REALITY" RATHER THAN
"TECHNICAL CONCEPTS" IS TO BE THE TEST OF EMPLOYMENT (UNITED STATES V.
SILK, 331 U.S. 704, 713; RUTHERFORD FOOD CORP. V. MCCOMB, 331 U.S. 722,
729), THESE HOMEWORKERS ARE EMPLOYEES.  REVERSED. 

FN1  THIS PROVISION OF THE BYLAWS WAS PURPORTEDLY REMOVED BY A VOTE
AT THE ANNUAL MEETING OF JUNE 26, 1958, THOUGH A QUORUM WAS NOT PRESENT
AT THE MEETING.  SEE MITCHELL V. WHITAKER HOUSE COOPERATIVE, INC., 170
F. SUPP., AT 749, N. 7, 8; 751. 

FN2  AN EXPULSION MAY BE APPEALED BY FILING A PETITION "TO BE ACTED
UPON BY THE MEMBERS AT THE NEXT MEETING."  CF. ME. REV. STAT., C. 56,
SEC. 16. 

FN3  FAIR LABOR STANDARDS AMENDMENTS OF 1949, SEC. 9, 63 STAT. 910,
916. 

FN4  SEE 29 CFR SECS. 530.1-530.12. 

FN5  ID., SEC. 530.2. 

FN6  SEE H.R. REP. NO. 522, 76TH CONG., 1ST SESS., P. 10; 86 CONG.
REC. 4924, 5122. 

FN7  86 CONG. REC. 5499; SEE ALSO THE REMARKS OF MR. ZIMMERMAN, ID.,
AT 5136, AND OF MR. HOOK, ID., AT 5224-5225. 

FN8  THE KNITTED OUTERWEAR WAGE ORDER, WHICH COVERS THE INDUSTRY IN
WHICH RESPONDENT IS ENGAGED, WAS ISSUED APRIL 4, 1942.  SEE 7 FED. REG.
2592. 

FN9  95 CONG. REC. 11209-11210. 

FN10  H.R. REP. NO. 1453, 81ST CONG., 1ST SESS. 

FN11  95 CONG. REC. 14927. 

FN12  THERE HAS BEEN NO DISTRIBUTION OF "EXCESS RECEIPTS" TO THE
MEMBERS.  THE EVIDENCE IS THAT RESPONDENT COULD SURVIVE "AS A
FINANCIALLY SOLVENT ENTERPRISE ONLY BY DOUBLING ITS PRESENT GROSS
INCOME."  AS OF THE DATE OF THE TRIAL, RESPONDENT WAS IN ARREARS EVEN
AS RESPECTS WHAT IT OWNED ITS MANAGERIAL EMPLOYEES.  SEE 170 F. SUPP.,
AT 751. 

FN13  SEE MITCHELL V. LAW, 161 F. SUPP. 795. 

FN14  WHEN THE COOPERATIVE DESIRED TO REDUCE ITS INVENTORY AND THE
RATE OF PRODUCTION OF ITS MEMBERS, IT WITHHELD THE "ADVANCE
ALLOWANCES." 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

IT IS CLEAR AND UNDISPUTED THAT THE FAIR LABOR STANDARDS ACT DOES NOT
APPLY IN THE ABSENCE OF AN EMPLOYER-EMPLOYEE RELATIONSHIP.  HERE, UPON
WHAT SEEMS TO ME TO BE AMPLE EVIDENCE, THE DISTRICT COURT FOUND THAT
THE COOPERATIVE WAS CREATED AND IS BEING OPERATED AS A TRUE COOPERATIVE
UNDER THE LAWS OF MAINE, 170 F. SUPP. 743, AND, ON APPEAL, THE COURT OF
APPEALS APPROVED THOSE FINDINGS.  275 F.2D 362.  UNLESS THOSE FINDINGS
ARE CLEARLY ERRONEOUS, THEY MUST BE ACCEPTED HERE.  FED. RULES CIV.
PROC., 52(A), 28 U.S.C. ACCEPTING THEM EXCLUDES ANY NOTION THAT THE
COOPERATIVE WAS FORMED OR AVAILED OF AS A "DEVICE" TO CIRCUMVENT THE
ACT.  IT IS NOT SERIOUSLY CONTENDED HERE THAT THESE FINDINGS OF THE TWO
COURTS BELOW WERE "CLEARLY ERRONEOUS," BUT RATHER THE GOVERNMENT'S
PRINCIPAL CONTENTION IS THAT THE BONA FIDES OF THE COOPERATIVE ARE
IMMATERIAL. 

DOUBTLESS, EVEN A TRUE COOPERATIVE MAY HAVE EMPLOYEES.  BUT SURELY A
TRUE COOPERATIVE DOES NOT AUTOMATICALLY BECOME THE "EMPLOYER" OF ITS
"MEMBERS" IN THE COMMONLY UNDERSTOOD SENSE OF THOSE TERMS, NOR, HENCE,
IN THEIR SENSE AS USED IN SUBPARAGRAPHS (D) AND (E) OF SEC. 3 OF THE
ACT, 29 U.S.C. SEC. 203(D) AND (E).  SOMETHING MORE IS REQUIRED.  FOR
THE ACT TO APPLY, THE COOPERATIVE MUST IN A FAIR SENSE "EMPLOY" ITS
"MEMBERS."  LIKE THE TWO COURTS BELOW, I THINK IT MAY NOT FAIRLY BE
SAID, ON THIS RECORD, THAT THERE IS ANY EVIDENCE THAT THE COOPERATIVE
EVER DID "EMPLOY" ITS "MEMBERS," OR SUFFER OR PERMIT THEM TO WORK FOR
IT.  INSTEAD, THE EVIDENCE SHOWS, AS THE TWO COURTS BELOW FOUND AND AS
I READ IT, THAT EACH MEMBER WORKED FOR HERSELF - IN HER OWN HOME WHEN
AND AS SHE CHOSE - TOWARD THE PRODUCTION OF KNITTED ARTICLES WHICH SHE
MARKETED THROUGH HER COOPERATIVE, RECEIVING IMMEDIATELY "AN ADVANCE"
THEREON, AND ULTIMATELY - AFTER PAYMENT OF HER PORTION OF THE
COOPERATIVE'S "EXPENSES" AND SETTING UP ITS "NECESSARY DEPRECIATION AND
CAPITAL RESERVES" - THE BALANCE OF THE PROCEEDS OF SALE WOULD "BE
DISTRIBUTED TO HER ACCORDING TO THE PERCENTAGE OF WORK SHE SUBMITTED TO
THE COOPERATIVE FOR SALE."  LIKE THE TWO COURTS BELOW, I FAIL TO SEE IN
THIS ANY ELEMENT OF EMPLOYMENT BY THE COOPERATIVE OF ITS MEMBERS. 

IF, AS SEEMS PRACTICALLY INEVITABLE IN THE LIGHT OF THE COURT'S
JUDGMENT, THE COOPERATIVE MUST NOW BE DISSOLVED, WILL NOT ITS ASSETS,
INCLUDING ITS "DEPRECIATION AND CAPITAL RESERVES" AS WELL AS ITS
"EXCESS RECEIPTS," HAVE TO BE REFUNDED TO ITS MEMBERS "ACCORDING TO THE
PERCENTAGE OF WORK SUBMITTED BY THEM RESPECTIVELY TO THE COOPERATIVE
FOR SALE," AND NOT ACCORDING TO THEIR MEMBERSHIPS OR INVESTMENTS, JUST
AS REQUIRED BY THE MAINE STATUTE AND THE COOPERATIVE'S ARTICLES?  THIS
SEEMS WHOLLY INCONSISTENT WITH ANY NOTION THAT THE MEMBERS WERE
EMPLOYEES OF THE COOPERATIVE OR THAT THEY WERE SUFFERED TO WORK FOR IT,
OR THAT IT BOUGHT OR PAID THEM FOR THEIR KNITTED ARTICLES. 

ON THE BASIS OF THE AMPLY SUPPORTED FINDINGS OF THE TWO COURTS BELOW,
IT SEEMS REASONABLY CLEAR THAT THE COOPERATIVE NEVER DID "EMPLOY" ITS
"MEMBERS," AND INASMUCH AS THE ACT DOES NOT APPLY IN THE ABSENCE OF AN
EMPLOYMENT RELATIONSHIP, I THINK THE JUDGMENT OF THE TWO COURTS BELOW
IS CONSONANT WITH THE FACTS AND THE LAW AND SHOULD BE AFFIRMED. 
..END :






KONIGSBERG V. STATE BAR OF CALIFORNIA 366 U.S. 36 


NO. 28.  ARGUED DECEMBER 14, 1960.  - DECIDED APRIL 24, 1961.  - 52 CAL.
2D 769, 344 P.2D 777, AFFIRMED. 


UNDER CALIFORNIA LAW, THE STATE SUPREME COURT MAY ADMIT TO THE
PRACTICE OF LAW ANY APPLICANT WHOSE QUALIFICATIONS HAVE BEEN CERTIFIED
TO IT BY THE CALIFORNIA COMMITTEE OF BAR EXAMINERS.  IN HEARINGS BY
THAT COMMITTEE ON HIS APPLICATION FOR ADMISION TO THE BAR, PETITIONER
REFUSED TO ANSWER ANY QUESTIONS PERTAINING TO HIS MEMBERSHIP IN THE
COMMUNIST PARTY, NOT ON THE GROUND OF POSSIBLE SELF-INCRIMINATION, BUT
ON THE GROUND THAT SUCH INQUIRIES WERE BEYOND THE PURVIEW OF THE
COMMITTEE'S AUTHORITY AND INFRINGED RIGHTS OF FREE THOUGHT, ASSOCIATION
AND EXPRESSION ASSURED HIM UNDER THE STATE AND FEDERAL CONSTITUTIONS. 
THE COMMITTEE DECLINED TO CERTIFY HIM AS QUALIFIED FOR ADMISSION TO THE
BAR ON THE GROUND THAT HIS REFUSALS TO ANSWER HAD OBSTRUCTED A FULL
INVESTIGATION INTO HIS QUALIFICATIONS.  THE STATE SUPREME COURT DENIED
HIM ADMISSION TO PRACTICE.  HELD:  DENIAL OF PETITIONER'S APPLICATION
FOR ADMISSION TO THE BAR ON THIS GROUND DID OT VIOLATE HIS RIGHTS UNDER
THE FOURTEENTH AMENDMENT.  PP. 37-56. 

(A)  THE STATE'S REFUSAL TO ADMIT PETITIONER TO PRACTICE ON THE
GROUND THAT HIS REFUSAL TO ANSWER THE COMMITTEE'S QUESTIONS HAD
THWARTED A FULL INVESTIGATION INTO HIS QUALIFICATIONS WAS NOT
INCONSISTENT WITH THIS COURT'S DECISION IN KONIGSBERG V. STATE BAR, 353
U.S. 252.  PP. 40-44. 

(B)  THE FOURTEENTH AMENDMENT'S PROTECTION AGAINST ARBITRARY STATE
ACTION DOES NOT FORBID A STATE FROM DENYING ADMISSION TO A BAR
APPLICANT SO LONG AS HE REFUSES TO ANSWER QUESTIONS HAVING A
SUBSTANTIAL RELEVANCE TO HIS QUALIFICATIONS; AND CALIFORNIA'S
APPLICATION OF SUCH A RULE IN THIS INSTANCE CANNOT BE SAID TO HAVE BEEN
ARBITRARY OR DISCRIMINATORY.  PP. 44-49. 

(C)  PETITIONER WAS NOT PRIVILEGED TO REFUSE TO ANSWER QUESTIONS
CONCERNING MEMBERSHIP IN THE COMMUNIST PARTY ON THE GROUND THAT THEY
IMPINGED UPON RIGHTS OF FREE SPEECH AND ASSOCIATION PROTECTED BY THE
FOURTEENTH AMENDMENT.  SPEISER V. RANDALL, 357 U.S. 513,
DISTINGUISHED.  PP. 49-56. 

KONIGSBERG V. STATE BAR OF CALIFORNIA ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE, INVOLVING CALIFORNIA'S SECOND REJECTION OF PETITIONER'S
APPLICATION FOR ADMISSION TO THE STATE BAR, IS A SEQUEL TO KONIGSBERG
V. STATE BAR, 353 U.S. 252, IN WHICH THIS COURT REVERSED THE STATE'S
INITIAL REFUSAL OF HIS APPLICATION. 

UNDER CALIFORNIA LAW THE STATE SUPREME COURT MAY ADMIT TO THE
PRACTICE OF LAW ANY APPLICANT WHOSE QUALIFICATIONS HAVE BEEN CERTIFIED
TO IT BY THE CALIFORNIA COMMITTEE OF BAR EXAMINERS.  CAL. BUS.  & PROF.
CODE SEC. 6064.  TO QUALIFY FOR CERTIFICATION AN APPLICANT MUST, AMONG
OTHER THINGS, BE OF "GOOD MORAL CHARACTER," ID., SEC. 6060(C), AND NO
PERSON MAY BE CERTIFIED "WHO ADVOCATES THE OVERTHROW OF THE GOVERNMENT
OF THE UNITED STATES OR OF THIS STATE BY FORCE, VIOLENCE, OR OTHER
UNCONSTITUTIONAL MEANS  ...  ."  ID., SEC. 6064.1.  THE COMMITTEE IS
EMPOWERED AND REQUIRED TO ASCERTAIN THE QUALIFICATIONS OF ALL
CANDIDATES.  ID., SEC. 6046.  UNDER RULES PRESCRIBED BY THE BOARD OF
GOVERNORS OF THE STATE BAR, AN APPLICANT BEFORE THE COMMITTEE HAS "THE
BURDEN OF PROVING THAT HE IS POSSESSED OF GOOD MORAL CHARACTER, OF
REMOVING ANY AND ALL REASONABLE SUSPICION OF MORAL UNFITNESS, AND THAT
HE IS ENTITLED TO THE HIGH REGARD AND CONFIDENCE OF THE PUBLIC."  ID.,
DIV. 3, C. 4, RULE X, SEC. 101.  ANY APPLICANT DENIED CERTIFICATION MAY
HAVE THE COMMITTEE'S ACTION REVIEWED BY THE STATE SUPREME COURT.  ID.,
SEC. 6066. 

IN 1953 PETITIONER, HAVING SUCCESSFULLY PASSED THE CALIFORNIA BAR
EXAMINATIONS, APPLIED FOR CERTIFICATION FOR BAR MEMBERSHIP.  THE
COMMITTEE, AFTER INTERROGATING KONIGSBERG AND RECEIVING CONSIDERABLE
EVIDENCE AS TO HIS QUALIFICATIONS, DECLINED TO CERTIFY HIM ON THE
GROUND THAT HE HAD FAILED TO MEET THE BURDEN OF PROVING HIS ELIGIBILITY
UNDER THE TWO STATUTORY REQUIREMENTS RELATING TO GOOD MORAL CHARACTER
AND NONADVOCACY OF VIOLENT OVERTHROW.  THAT DETERMINATION CENTERED
LARGELY AROUND KONIGSBERG'S REPEATED REFUSALS TO ANSWER COMMITTEE
QUESTIONS AS TO HIS PRESENT OR PAST MEMBERSHIP IN THE COMMUNIST PARTY. 
(FN1)  THE CALIFORNIA SUPREME COURT DENIED REVIEW WITHOUT OPINION.  SEE
52 CAL. 2D 769, 770, 344 P.2D 777, 778. 

ON CERTIORARI THIS COURT, AFTER REVIEWING THE RECORD, HELD THE STATE
DETERMINATION TO HAVE BEEN WITHOUT RATIONAL SUPPORT IN THE EVIDENCE AND
THEREFORE OFFENSIVE TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  KONIGSBERG V. STATE BAR, SUPRA.  AT THE SAME TIME THE COURT
DECLINED TO DECIDE WHETHER KONIGSBERG'S REFUSAL TO ANSWER COULD
CONSTITUTIONALLY AFFORD "AN INDEPENDENT GROUND FOR EXCLUSION FROM THE
BAR," CONSIDERING THAT SUCH AN ISSUE WAS NOT BEFORE IT.  ID., 259-262. 
THE CASE WAS REMANDED TO THE STATE SUPREME COURT "FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION."  ID., 274. 

ON REMAND PETITIONER MOVED THE CALIFORNIA SUPREME COURT FOR IMMEDIATE
ADMISSION TO THE BAR.  THE COURT VACATED ITS PREVIOUS ORDER DENYING
REVIEW AND REFERRED THE MATTER TO THE BAR COMMITTEE FOR FURTHER
CONSIDERATION.  AT THE ENSUING COMMITTEE HEARINGS KONIGSBERG INTRODUCED
FURTHER EVIDENCE AS TO HIS GOOD MORAL CHARACTER (NONE OF WHICH WAS
REBUTTED), REITERATED UNEQUIVOCALLY HIS DISBELIEF IN VIOLENT OVERTHROW,
AND STATED THAT HE HAD NEVER KNOWINGLY BEEN A MEMBER OF ANY
ORGANIZATION WHICH ADVOCATED SUCH ACTION.  HE PERSISTED, HOWEVER, IN
HIS REFUSALS TO ANSWER ANY QUESTIONS RELATING TO HIS MEMBERSHIP IN THE
COMMUNIST PARTY.  THE COMMITTEE AGAIN DECLINED TO CERTIFY HIM, THIS
TIME ON THE GROUND THAT HIS REFUSALS TO ANSWER HAD OBSTRUCTED A FULL
INVESTIGATION INTO HIS QUALIFICATIONS.  (FN2)  THE CALIFORNIA SUPREME
COURT, BY A DIVIDED VOTE, REFUSED REVIEW, AND ALSO DENIED KONIGSBERG'S
MOTION FOR DIRECT ADMISSION TO PRACTICE.  (FN3)  52 CAL. 2D 769, 344
P.2D 777.  WE AGAIN BROUGHT THE CASE HERE.  362 U.S. 910. 

PETITIONER'S CONTENTIONS IN THIS COURT IN SUPPORT OF REVERSAL OF THE
CALIFORNIA SUPREME COURT'S ORDER ARE REDUCIBLE TO THREE PROPOSITIONS:
(1) THE STATE'S ACTION WAS INCONSISTENT WITH THIS COURT'S DECISION IN
THE EARLIER KONIGSBERG CASE; (2) ASSUMING THE COMMITTEE'S INQUIRIES
INTO KONIGSBERG'S POSSIBLE COMMUNIST PARTY MEMBERSHIP WERE PERMISSIBLE,
IT WAS UNCONSTITUTIONALLY ARBITRARY FOR THE STATE TO DENY HIM ADMISSION
BECAUSE OF HIS REFUSALS TO ANSWER; AND (3) IN ANY EVENT, KONIGSBERG WAS
CONSTITUTIONALLY JUSTIFIED IN REFUSING TO ANSWER THESE QUESTIONS. 

                 I. 

CONSIDERATION OF PETITIONER'S CONTENTIONS AS TO THE EFFECT OF THIS
COURT'S DECISION IN THE FORMER KONIGSBERG CASE REQUIRES THAT THERE BE
KEPT CLEARLY IN MIND WHAT IS ENTAILED IN CALIFORNIA'S RULE, COMPARABLE
TO THAT IN MANY STATES, THAT AN APPLICANT FOR ADMISSION TO THE BAR
BEARS THE BURDEN OF PROOF OF "GOOD MORAL CHARACTER" (FN4) - A
REQUIREMENT WHOSE VALIDITY IS NOT, NOR COULD WELL BE, DRAWN IN QUESTION
HERE.  (FN5) 

UNDER SUCH A RULE AN APPLICANT MUST INITIALLY FURNISH ENOUGH EVIDENCE
OF GOOD CHARACTER TO MAKE A PRIMA FACIE CASE.  THE EXAMINING COMMITTEE
THEN HAS THE OPPORTUNITY TO REBUT THAT SHOWING WITH EVIDENCE OF BAD
CHARACTER.  SUCH EVIDENCE MAY RESULT FROM THE COMMITTEE'S OWN
INDEPENDENT INVESTIGATION, FROM AN APPLICANT'S RESPONSES TO QUESTIONS
ON HIS APPLICATION FORM, OR FROM COMMITTEE INTERROGATION OF THE
APPLICANT HIMSELF.  THIS INTERROGATION MAY WELL BE OF DECISIVE
IMPORTANCE FOR, AS ALL FAMILIAR WITH BAR ADMISSION PROCEEDINGS KNOW,
EXCLUSION OF UNWORTHY CANDIDATES FREQUENTLY DEPENDS UPON THE
THOROUGHNESS OF THE COMMITTEE'S QUESTIONING, REVEALING AS IT MAY
INFIRMITIES IN AN OTHERWISE SATISFACTORY SHOWING ON HIS PART.  THIS IS
ESPECIALLY SO WHERE A BAR COMMITTEE, AS IS NOT INFREQUENTLY THE CASE,
HAS NO MEANS OF CONDUCTING AN INDEPENDENT INVESTIGATION OF ITS OWN INTO
AN APPLICANT'S QUALIFICATIONS.  IF AT THE CONCLUSION OF THE PROCEEDINGS
THE EVIDENCE OF GOOD CHARACTER AND THAT OF BAD CHARACTER ARE FOUND IN
EVEN BALANCE, THE STATE MAY REFUSE ADMISSION TO THE APPLICANT, JUST AS
IN AN ORDINARY SUIT A PLAINTIFF MAY FAIL IN HIS CASE BECAUSE HE HAS NOT
MET HIS BURDEN OF PROOF. 

IN THE FIRST KONIGSBERG CASE THIS COURT WAS CONCERNED SOLELY WITH THE
QUESTION WHETHER THE BALANCE BETWEEN THE FAVORABLE AND UNFAVORABLE
EVIDENCE AS TO KONIGSBERG'S QUALIFICATIONS HAD BEEN STRUCK IN
ACCORDANCE WITH THE REQUIREMENTS OF DUE PROCESS.  IT WAS THERE HELD,
FIRST, THAT KONIGSBERG HAD MADE OUT A PRIMA FACIE CASE OF GOOD
CHARACTER AND OF NONADVOCACY OF VIOLENT OVERTHROW, AND, SECOND, THAT
THE OTHER EVIDENCE IN THE RECORD COULD NOT, EVEN WITH THE AID OF ALL
REASONABLE INFERENCES FLOWING THEREFROM, CAST SUCH DOUBTS UPON
PEITIONER'S PRIMA FACIE CASE AS TO JUSTIFY ANY FINDING OTHER THAN THAT
THESE TWO CALIFORNIA QUALIFICATION REQUIREMENTS HAD BEEN SATISFIED. 
(FN6)  IN ASSESSING THE SIGNIFICANCE OF KONIGSBERG'S REFUSAL TO ANSWER
QUESTIONS AS TO THE COMMUNIST PARTY MEMBERSHIP, THE COURT DEALT ONLY
WITH THE FACT THAT THIS REFUSAL COULD NOT PROVIDE ANY REASONABLE
INDICATION OF A CHARACTER NOT MEETING THESE TWO STANDARDS FOR
ADMISSION.  THE COURT DID NOT CONSIDER, BUT RESERVED FOR LATER
DECISION, ALL QUESTIONS AS TO THE PERMISSIBILITY OF THE STATE TREATING
KONIGSBERG'S REFUSAL TO ANSWER AS A GROUND FOR EXCLUSION, NOT BECAUSE
IT WAS EVIDENCE FROM WHICH SUBSTANTIVE CONCLUSIONS MIGHT BE DRAWN, BUT
BECAUSE THE REFUSAL HAD THWARTED A FULL INVESTIGATION INTO HIS
QUALIFICATIONS.  SEE 353 U.S., AT 259-262.  THE STATE NOW ASSERTS THAT
GROUND FOR EXCLUSION, AN ISSUE THAT IS NOT FORECLOSED BY ANYTHING IN
THIS COURT'S EARLIER OPINION WHICH DECIDED A QUITE DIFFERENT QUESTION. 

IT IS EQUALLY CLEAR THAT THE STATE'S ORDERING OF THE REHEARING WHICH
LED TO PETITIONER'S EXCLUSION MANIFESTED NO DISRESPECT OF THE EFFECT OF
THE MANDATE IN THAT CASE, WHICH EXPRESSLY LEFT THE MATTER OPEN FOR
FURTHER STATE PROCEEDINGS "NOT INCONSISTENT WITH" THE COURT'S OPINION. 
THERE IS NO BASIS FOR ANY SUGGESTION THAT THE STATE IN SO PROCEEDING
HAS ADOPTED UNUSUAL OR DISCRIMINATORY PROCEDURES TO AVOID THE NORMAL
CONSEQUENCES OF THIS COURT'S EARLIER DETERMINATION.  IN ITS EARLIER
PROCEEDING, THE CALIFORNIA BAR COMMITTEE MAY HAVE FOUND FURTHER
INVESTIGATION AND QUESTIONING OF PETITIONER UNNECESSARY WHEN, IN ITS
VIEW, THE APPLICANT'S PRIMA FACIE CASE OF QUALIFICATIONS HAD BEEN
SUFFICIENTLY REBUTTED BY EVIDENCE ALEREADY IN THE RECORD.  WHILE IN ITS
FORMER OPINION THIS COURT HELD THAT THE STATE COULD NOT
CONSTITUTIONALLY SO CONCLUDE, IT DID NOT UNDERTAKE TO PRECLUDE THE
STATE AGENCY FROM ASKING ANY QUESTIONS OR FROM CONDUCTING ANY
INVESTIGATION THAT IT MIGHT HAVE THOUGHT NECESSARY HAD IT KNOWN THAT
THE BASIS OF ITS THEN DECISION WOULD BE OVERTURNED.  IN RECALLING
KONIGSBERG FOR FURTHER TESTIMONY, THE COMMITTEE DID ONLY WHAT THIS
COURT HAS CONSISTENTLY HELD THAT FEDERAL ADMINISTRATIVE TRIBUNALS MAY
DO ON REMAND AFTER A REVIEWING COURT HAS SET ASIDE AGENCY ORDERS AS
UNSUPPORTED BY REQUISITE FINDINGS OF FACT.  FEDERAL COMMUNICATIONS
COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S. 134; FLY V. HEITMEYER,
309 U.S. 146. 

IN THE ABSENCE OF THE SLIGHTEST INDICATION OF ANY PURPOSE ON THE PART
OF THE STATE TO EVADE THE COURT'S PRIOR DECISION, PRINCIPLES OF
FINALITY PROTECTING THE PARTIES TO THIS STATE LITIGATION ARE, WITHIN
BROAD LIMITS OF FUNDAMENTAL FAIRNESS, SOLELY THE CONCERN OF CALIFORNIA
LAW.  SUCH LIMITS ARE BROAD EVEN IN A CRIMINAL CASE, SEE BRYAN V.
UNITED STATES, 338 U.S. 552; HOAG V. NEW JERSEY, 356 U.S. 464; CF.
PALKO V. CONNECTICUT, 302 U.S. 319, 328.  IN THIS INSTANCE THEY
CERTAINLY HAVE NOT BEEN TRANSGRESSED BY THE STATE'S MERELY TAKING
FURTHER ACTION IN THIS ESSENTIALLY ADMINISTRATIVE TYPE OF PROCEEDING. 
(FN7)

II. 

WE THINK IT CLEAR THAT THE FOURTEENTH AMENDMENT'S PROTECTION AGAINST
ARBITRARY STATE ACTION DOES NOT FORBID A STATE FROM DENYING ADMISSION
TO A BAR APPLICANT SO LONG AS HE REFUSES TO PROVIDE UNPRIVILEGED
ANSWERS TO QUESTIONS HAVING A SUBSTANTIAL RELEVANCE TO HIS
QUALIFICATIONS.  AN INVESTIGATION OF THIS CHARACTER, LIKE A CIVIL SUIT,
REQUIRES PROCEDURAL AS WELL AS SUBSTANTIVE RULES.  IT IS SURELY NOT
DOUBTFUL THAT A STATE COULD VALIDLY ADOPT AN ADMINISTRATIVE RULE
ANALOGOUS TO RULE 37(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE WHICH
PROVIDES THAT THAT REFUSAL, AFTER DUE WARNING, TO ANSWER RELEVANT
QUESTIONS MAY RESULT IN "THE MATTERS REGARDING WHICH THE QUESTIONS WERE
ASKED" BEING CONSIDERED FOR THE PURPOSES OF THE PROCEEDING TO BE
ANSWERED IN A WAY UNFAVORABLE TO THE REFUSING PARTY, OR EVEN THAT SUCH
REFUSAL MAY RESULT IN "DISMISSING THE ACTION OR PROCEEDING" OF THE
PARTY ASKING AFFIRMATIVE RELIEF. 

THE STATE PROCEDURAL RULE INVOLVED HERE IS A LESS BROAD ONE, FOR ALL
THAT CALIFORNIA HAS IN EFFECT SAID IS THAT IN CASES WHERE, ON MATTERS
MATERIAL TO AN APPLICANT'S QUALIFICATIONS, THERE ARE GAPS IN THE
EVIDENCE PRESENTED BY HIM WHICH THE AGENCY CHARGED WITH CERTIFICATION
CONSIDERS SHOULD BE FILLED IN THE APPROPRIATE EXERCISE OF ITS
RESPONSIBILITIES, AN APPLICANT WILL NOT BE ADMITTED TO PRACTICE UNLESS
AND UNTIL HE COOPERATES WITH THE AGENCY'S EFFORTS TO FILL THOSE GAPS. 
THE FACT THAT THIS RULE FINDS ITS SOURCE IN THE SUPERVISORY POWERS OF
THE CALIFORNIA SUPREME COURT OVER ADMISSIONS TO THE BAR, RATHER THAN IN
LEGISLATION, IS NOT CONSTITUTIONALLY SIGNIFICANT.  NASHVILLE, C. & ST.
L.R. CO. V. BROWNING, 310 U.S. 362.  NOR IN THE ABSENCE OF A SHOWING OF
ARBITRARY OR DISCRIMINATORY APPLICATION IN A PARTICULAR CASE, IS IT A
MATTER OF FEDERAL CONCERN WHETHER SUCH A RULE REQUIRES THE REJECTION OF
ALL APPLICANTS REFUSING TO ANSWER MATERIAL QUESTIONS, OR ONLY IN
INSTANCES WHERE THE EXAMINING COMMITTEE DEEMS THAT A REFUSAL HAS
MATERIALLY OBSTRUCTED ITS INVESTIGATION.  COMPARE BEILAN V. BOARD OF
EDUCATION, 357 U.S. 399, WITH NELSON V. COUNTY OF LOS ANGELES, 362 U.S.
1. 

IN THE CONTEXT OF THE ENTIRE RECORD OF THESE PROCEEDINGS, (FN8) THE
APPLICATION OF THE CALIFORNIA RULE IN THIS INSTANCE CANNOT BE SAID TO
BE ARBITRARY OR DISCRIMINATORY.  IN THE FIRST KONIGSBERG CASE THIS
COURT HELD THAT NEITHER THE SOMEWHAT WEAK BUT UNCONTRADICTED TESTIMONY,
THAT PETITIONER HAD BEEN A COMMUNIST PARTY MEMBER IN 1941, NOR HIS
REFUSAL TO ANSWER QUESTIONS RELATING TO PARTY MEMBERSHIP, COULD
RATIONALLY SUPPORT ANY SUBSTANTIVE ADVERSE INFERENCES AS TO
PETITIONER'S CHARACTER QUALIFICATIONS, 353 U.S., AT 266-274.  THAT WAS
NOT TO SAY, HOWEVER, THAT THESE FACTORS, SINGLY OR TOGETHER, COULD NOT
BE REGARDED AS LEAVING THE INVESTIGATORY RECORD IN SUFFICIENT
UNCERTAINTY AS CONSTITUTIONALLY TO PERMIT APPLICATION OF THE PROCEDURAL
RULE WHICH THE STATE HAS NOW INVOKED, PROVIDED THAT KONIGSBERG HAD BEEN
FIRST GIVEN DUE WARNING OF THE CONSEQUENCES OF HIS CONTINUING REFUSAL
TO RESPOND TO THE COMMITTEE'S QUESTIONS.  CF. 353 U.S., AT 261. 

IT IS NO ANSWER TO SAY THAT PETITIONER HAS MADE OUT A PRIMA FACIE
CASE OF QUALIFICATIONS, FOR THIS IS PRECISELY THE POSTURE OF A
PROCEEDING IN WHICH THE COMMITTEE'S RIGHT TO EXAMINE AND CROSS-EXAMINE
BECOMES SIGNIFICANT.  ASSUMING, AS WE DO FOR THE MOMENT, THAT THERE IS
NO PRIVILEGE HERE TO REFUSE TO ANSWER, PETITIONER COULD NO MORE INSIST
THAT HIS PRIMA FACIE CASE MAKES IMPROPER FURTHER QUESTIONING OF HIM
THAN HE COULD INSIST THAT SUCH CIRCUMSTANCE MADE IMPROPER THE
INTRODUCTION OF OTHER FORMS OF REBUTTING EVIDENCE.    WE LIKEWISE
REGARD AS UNTENABLE PETITIONER'S CONTENTIONS THAT THE QUESTIONS AS TO
COMMUNIST PARTY MEMBERSHIP WERE MADE IRRELEVANT EITHER BY THE FACT THAT
BARE, INNOCENT MEMBERSHIP IS NOT A GROUND OF DISQUALIFICATION OR BY
PETITIONER'S WILLINGNESS TO ANSWER SUCH ULTIMATE QUESTIONS AS WHETHER
HE HIMSELF BELIEVED IN VIOLENT OVERTHROW OR KNOWINGLY BELONGED TO AN
ORGANIZATION ADVOCATING VIOLENT OVERTHROW.  THE COMMITTEE CHAIRMAN'S
ANSWER TO THE FORMER CONTENTION WAS ENTIRELY CORRECT: 

"IF YOU ANSWERED THE QUESTION, FOR EXAMPLE, THAT YOU HAD BEEN A
MEMBER OF THE COMMUNIST PARTY DURING SOME PERIOD SINCE 1951 OR THAT YOU
WERE PRESENTLY A MEMBER OF THE COMMUNIST PARTY, THE COMMITTEE WOULD
THEN BE IN A POSITION TO ASK YOU WHAT ACTS YOU ENGAGED IN TO CARRY OUT
THE FUNCTIONS AND PURPOSES OF THAT PARTY, WHAT THE AIMS AND PURPOSES OF
THE PARTY WERE, TO YOUR KNOWLEDGE, AND QUESTIONS OF THAT TYPE.  YOU SEE
BY FAILING TO ANSWER THE INITIAL QUESTION THERE CERTAINLY IS NO BASIS
AND NO OPPORTUNITY FOR US TO INVESTIGATE WITH RESPECT TO THE OTHER
MATTERS TO WHICH THE INITIAL QUESTION MIGHT VERY WELL BE CONSIDERED
PRELIMINARY." 

AND THE EXPLANATION GIVEN TO PETITIONER'S COUNSEL BY ANOTHER
COMMITTEE MEMBER AS TO WHY KONIGSBERG'S TESTIMONY ABOUT ULTIMATE FACTS
WAS NOT DISPOSITIVE WAS ALSO SOUND: 

"MR. MOSK, YOU REALIZE THAT IF MR. KONIGSBERG HAD ANSWERED THE
QUESTION THAT HE REFUSED TO ANSWER, AN ENTIRELY NEW AREA OF
INVESTIGATION MIGHT BE OPENED UP, AND THIS COMMITTEE MIGHT BE ABLE TO
ASCERTAIN FROM MR. KONIGSBERG THAT PERHAPS HE IS NOW AND FOR MANY YEARS
PAST HAS BEEN AN ACTIVE MEMBER OF THE COMMUNIST PARTY, AND FROM FINDING
OUT WHO HIS ASSOCIATES WERE IN THAT ENTERPRISE WE MIGHT DISCOVER THAT
HE DOES ADVOCATE THE OVERTHROW OF THIS GOVERNMENT BY FORCE AND
VIOLENCE.  I AM NOT SAYING THAT HE WOULD DO THAT, BUT IT IS A
POSSIBILITY, AND WE DON'T HAVE TO TAKE ANY WITNESS' TESTIMONY AS
PRECLUDING US FROM TRYING TO DISCOVER IF HE IS TELLING THE TRUTH.  THAT
IS THE POINT." 

PETITIONER'S FURTHER MISCELLANEOUS CONTENTIONS THAT THE STATE'S
EXCLUSION OF HIM WAS CAPRICIOUS ARE ALL ALSO INSUBSTANTIAL.  (FN9) 

THERE REMAINS THE QUESTION AS TO WHETHER KONIGSBERG WAS ADEQUATELY
WARNED OF THE CONSEQUENCES OF HIS REFUSAL TO ANSWER.  AT THE OUTSET OF
THE RENEWED HEARINGS THE CHAIRMAN OF THE COMMITTEE STATED: 

"AS A RESULT OF OUR TWO-FOLD PURPOSE (TO INVESTIGATE AND REACH
DETERMINATIONS), PARTICULARLY OUR FUNCTION OF INVESTIGATION, WE BELIEVE
IT WILL BE NECESSARY FOR YOU, MR. KONIGSBERG, TO ANSWER OUR MATERIAL
QUESTIONS OR OUR INVESTIGATION WILL BE OBSTRUCTED.  WE WOULD NOT THEN
AS A RESULT BE ABLE TO CERTIFY YOU FOR ADMISSION." 

AFTER PETITIONER HAD REFUSED TO ANSWER QUESTIONS ON COMMUNIST PARTY
MEMBERSHIP, THE CHAIRMAN ASKED: 

"MR. KONIGSBERG, I THINK YOU WILL RECALL THAT I INITIALLY ADVISED
YOU A FAILURE TO ANSWER OUR MATERIAL QUESTIONS WOULD OBSTRUCT OUR
INVESTIGATION AND RESULT IN OUR FAILURE TO CERTIFY YOU.  WITH THIS IN
MIND DO YOU WISH TO ANSWER ANY OF THE QUESTIONS WHICH YOU HERETOFORE UP
TO NOW HAVE REFUSED TO ANSWER?" 

AT THE CONCLUSION OF THE PROCEEDING ANOTHER COMMITTEE MEMBER STATED: 

"I WOULD LIKE TO MAKE THIS STATEMENT SO THAT THERE WILL BE NO
MISUNDERSTANDING ON THE PART OF ANY COURT THAT MAY REVIEW THIS RECORD
IN THE FUTURE, THAT I FEEL THAT AS A MEMBER OF THE COMMITTEE THAT THE
FAILURE OF MR. KONIGSBERG TO ANSWER THE QUESTION AS TO WHETHER OR NOT
HE IS NOW A MEMBER OF THE COMMUNIST PARTY IS AN OBSTRUCTION OF THE
FUNCTION OF THIS COMMITTEE, NOT A FRUSTRATION IF THAT WORD HAS BEEN
USED.  I THINK IT WOULD BE AN OBSTRUCTION.  THERE ARE PHASES OF HIS
MORAL CHARACTER THAT WE HAVEN'T BEEN ABLE TO INVESTIGATE SIMPLY BECAUSE
WE HAVE BEEN STOPPED AT THIS POINT, AND I FOR ONE COULD NOT CERTIFY TO
THE SUPREME COURT THAT HE WAS A PROPER PERSON TO BE ADMITTED TO
PRACTICE LAW IN THIS STATE UNTIL HE ANSWERS THE QUESTION ABOUT HIS
COMMUNIST AFFILIATION." 

THE RECORD THUS LEAVES NO ROOM FOR DOUBT ON THE SCORE OF "WARNING,"
AND PETITIONER DOES NOT INDEED CONTEND TO THE CONTRARY. 

                                      III. 

FINALLY, PETITIONER ARGUES THAT, IN ANY EVENT, HE WAS PRIVILEGED NOT
TO RESPOND TO QUESTIONS DEALING WITH COMMUNIST PARTY MEMBERSHIP BECAUSE
THEY UNCONSTITUTIONALLY IMPINGED UPON RIGHTS OF FREE SPEECH AND
ASSOCIATION PROTECTED BY THE FOURTEENTH AMENDMENT. 

AT THE OUTSET WE REJECT THE VIEW THAT FREEDOM OF SPEECH AND
ASSOCIATION (N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 460), AS PROTECTED BY
THE FIRST AND FOURTEENTH AMENDMENTS, ARE "ABSOLUTES," NOT ONLY IN THE
UNDOUBTED SENSE THAT WHERE THE CONSTITUTIONAL PROTECTION EXISTS IT MUST
PREVAIL, BUT ALSO IN THE SENSE THAT THE SCOPE OF THAT PROTECTION MUST
BE GATHERED SOLELY FROM A LITERAL READING OF THE FIRST AMENDMENT. 
(FN10)  THROUGHOUT ITS HISTORY THIS COURT HAS CONSISTENTLY RECOGNIZED
AT LEAST TWO WAYS IN WHICH CONSTITUTIONALLY PROTECTED FREEDOM OF SPEECH
IS NARROWER THAN AN UNLIMITED LICENSE TO TALK.  ON THE ONE HAND,
CERTAIN FORMS OF SPEECH, OR SPEECH IN CERTAIN CONTEXTS, HAS BEEN
CONSIDERED OUTSIDE THE SCOPE OF CONSTITUTIONAL PROTECTION.  (FN11)
SEE, E.G., SCHENCK V. UNITED STATES, 249 U.S. 47; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568; DENNIS V. UNITED STATES, 341 U.S. 494;
BEAUHARNAIS V. ILLINOIS, 343 U.S. 250; YATES V. UNITED STATES, 354 U.S.
298; ROTH V. UNITED STATES, 354 U.S. 476.  ON THE OTHER HAND, GENERAL
REGULATORY STATUTES, NOT INTENDED TO CONTROL THE CONTENT OF SPEECH BUT
INCIDENTALLY LIMITING ITS UNFETTERED EXERCISE, HAVE NOT BEEN REGARDED
AS THE TYPE OF LAW THE FIRST OR FOURTEENTH AMENDMENT FORBADE CONGRESS
OR THE STATES TO PASS, WHEN THEY HAVE BEEN FOUND JUSTIFIED BY
SUBORDINATING VALID GOVERNMENTAL INTERESTS, A PREREQUISITE TO
CONSTITUTIONALITY WHICH HAS NECESSARILY INVOLVED A WEIGHING OF THE
GOVERNMENTAL INTEREST INVOLVED.  SEE, E.G., SCHNEIDER V. STATE, 308
U.S. 147, 161; COX V. NEW HAMPSHIRE, 312 U.S. 569; PRINCE V.
MASSACHUSETTS, 321 U.S. 158; KOVACS V. COOPER, 336 U.S. 77; AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382; BREARD V. ALEXANDRIA, 341
U.S. 622.  IT IS IN THE LATTER CLASS OF CASES THAT THIS COURT HAS
ALWAYS PLACED RULES COMPELLING DISCLOSURE OF PRIOR ASSOCIATION AS AN
INCIDENT OF THE INFORMED EXERCISE OF A VALID GOVERNMENTAL FUNCTION. 
BATES V. LITTLE ROCK, 361 U.S. 516, 524.  WHENEVER, IN SUCH A CONTEXT,
THESE CONSTITUTIONAL PROTECTIONS ARE ASSERTED AGAINST THE EXERCISE OF
VALID GOVERNMENTAL POWERS A RECONCILIATION MUST BE EFFECTED, AND THAT
PERFORCE REQUIRES AN APPROPRIATE WEIGHING OF THE RESPECTIVE INTERESTS
INVOLVED.  WATKINS V. UNITED STATES, 354 U.S. 178, 198; N.A.A.C.P. V.
ALABAMA, SUPRA; BARENBLATT V. UNITED STATES, 360 U.S. 109, 126-127;
BATES V. LITTLE ROCK, SUPRA; WILKINSON V. UNITED STATES, 365 U.S. 399;
BRADEN V. UNITED STATES, 365 U.S. 431.  WITH MORE PARTICULAR REFERENCE
TO THE PRESENT CONTEXT OF A STATE DECISION AS TO CHARACTER
QUALIFICATIONS, IT IS DIFFICULT, INDEED, TO IMAGINE A VIEW OF THE
CONSTITUTIONAL PROTECTIONS OF SPEECH AND ASSOCIATION WHICH WOULD
AUTOMATICALLY AND WITHOUT CONSIDERATION OF THE EXTENT OF THE DETERRENCE
OF SPEECH AND ASSOCIATION AND OF THE IMPORTANCE OF THE STATE FUNCTION,
EXCLUDE ALL REFERENCE TO PRIOR SPEECH OR ASSOCIATION ON SUCH ISSUES AS
CHARACTER, PURPOSE, CREDIBILITY, OR INTENT.  ON THE BASIS OF THESE
CONSIDERATIONS WE NOW JUDGE PETITIONER'S CONTENTIONS IN THE PRESENT
CASE. 

PETITIONER DOES NOT CHALLENGE THE CONSTITUTIONALITY OF SEC. 6064.1 OF
THE CALIFORNIA BUSINESS AND PROFESSIONS CODE FORBIDDING CERTIFICATION
FOR ADMISSION TO PRACTICE OF THOSE ADVOCATING THE VIOLENT OVERTHROW OF
GOVERNMENT.  IT WOULD INDEED BE DIFFICULT TO ARGUE THAT A BELIEF, FIRM
ENOUGH TO BE CARRIED OVER INTO ADVOCACY, IN THE USE OF ILLEGAL MEANS TO
CHANGE THE FORM OF THE STATE OR FEDERAL GOVERNMENT IS AN UNIMPORTANT
CONSIDERATION IN DETERMINING THE FITNESS OF APPLICANTS FOR MEMBERSHIP
IN A PROFESSION IN WHOSE HANDS SO LARGELY LIES THE SAFEKEEPING OF THIS
COUNTRY'S LEGAL AND POLITICAL INSTITUTIONS.  CF.  GARNER V. BOARD OF
PUBLIC WORKS, 341 U.S. 716.  NOR IS THE STATE INTEREST IN THIS RESPECT
INSUBSTANTIALLY RELATED TO THE RIGHT WHICH CALIFORNIA CLAIMS TO INQUIRE
ABOUT COMMUNIST PARTY MEMBERSHIP.  THIS COURT HAS LONG SINCE RECOGNIZED
THE LEGITIMACY OF A STATUTORY FINDING THAT MEMBERSHIP IN THE COMMUNIST
PARTY IS NOT UNRELATED TO THE DANGER OF USE FOR SUCH ILLEGAL ENDS OF
POWERS GIVEN FOR LIMITED PURPOSES.  SEE AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382; SEE ALSO BARENBLATT V. UNITED STATES, 360 U.S.
109, 128-129; CF. WILKINSON V. UNITED STATES, 365 U.S. 399; BRADEN V.
UNITED STATES, 365 U.S. 431. 

AS REGARDS THE QUESTIONING OF PUBLIC EMPLOYEES RELATIVE TO COMMUNIST
PARTY MEMBERSHIP IT HAS ALREADY BEEN HELD THAT THE INTEREST IN NOT
SUBJECTING SPEECH AND ASSOCIATION TO THE DETERRENCE OF SUBSEQUENT
DISCLOSURE IS OUTWEIGHED BY THE STATE'S INTEREST IN ASCERTAINING THE
FITNESS OF THE EMPLOYEE FOR THE POST HE HOLDS, AND HENCE THAT SUCH
QUESTIONING DOES NOT INFRINGE CONSTITUTIONAL PROTECTIONS.  BEILAN V.
BOARD OF PUBLIC EDUCATION, 357 U.S. 399; GARNER V. BOARD OF PUBLIC
WORKS, 341 U.S. 716.  WITH RESPECT TO THIS SAME QUESTION OF COMMUNIST
PARTY MEMBERSHIP, WE REGARD THE STATE'S INTEREST IN HAVING LAWYERS WHO
ARE DEVOTED TO THE LAW IN ITS BROADEST SENSE, INCLUDING NOT ONLY ITS
SUBSTANTIVE PROVISIONS, BUT ALSO ITS PROCEDURES FOR ORDERLY CHANGE, AS
CLEARLY SUFFICIENT TO OUTWEIGH THE MINIMAL EFFECT UPON FREE ASSOCIATION
OCCASIONED BY COMPULSORY DISCLOSURE IN THE CIRCUMSTANCES HERE
PRESENTED. 

THERE IS HERE NO LIKELIHOOD THAT DETERRENCE OF ASSOCIATION MAY RESULT
FROM FORESEEABLE PRIVATE ACTION, SEE N.A.A.C.P. V. ALABAMA, SUPRA, AT
462, FOR BAR COMMITTEE INTERROGATIONS SUCH AS THIS ARE CONDUCTED IN
PRIVATE.  SEE RULE 58, SECTION X, RULES AND PRACTICE AND PROCEDURE OF
THE SUPREME COURT OF ILLINOIS; CF. CAL. BUS.  & PROF. CODE, RULES OF
PROCEDURE OF THE STATE BAR OF CALIFORNIA, RULE 8; ANONYMOUS V. BAKER,
360 U.S. 287, 291-292.  NOR IS THERE THE POSSIBILITY THAT THE STATE MAY
BE AFFORDED THE OPPORTUNITY FOR IMPOSING UNDETECTABLE ARBITRARY
CONSEQUENCES UPON PROTECTED ASSOCIATION, SEE SHELTON V. TUCKER, 364
U.S. 479, 486, FOR A BAR APPLICANT'S EXCLUSION BY REASON OF COMMUNIST
PARTY MEMBERSHIP IS SUBJECT TO JUDICIAL REVIEW, INCLUDING ULTIMATE
REVIEW BY THIS COURT, SHOULD IT APPEAR THAT SUCH EXCLUSION HAS RESTED
ON SUBSTANTIVE OR PROCEDURAL FACTORS THAT DO NOT COMPORT WITH THE
FEDERAL CONSTITUTION.  SEE KONIGSBERG V. STATE BAR, 353 U.S. 252;
SCHWARE V. BOARD OF EXAMINERS OF NEW MEXICO, 353 U.S. 232; CF. WIEMAN
V. UPDEGRAFF, 344 U.S. 183.  IN THESE CIRCUMSTANCES IT IS DIFFICULT
INDEED TO PERCEIVE ANY SOLID BASIS FOR A CLAIM OF UNCONSTITUTIONAL
INTRUSION INTO RIGHTS ASSURED BY THE FOURTEENTH AMENDMENT. 

IF THIS WERE ALL THERE WAS TO PETITIONER'S CLAIM OF A PRIVILEGE TO
REFUSE TO ANSWER, WE WOULD REGARD THE BEILAN CASE AS CONTROLLING. 
THERE IS, HOWEVER, A FURTHER ASPECT OF THE MATTER.  IN SPEISER V.
RANDALL, 357 U.S. 513, WE HELD UNCONSTITUTIONAL A STATE PROCEDURAL RULE
THAT IN ORDER TO OBTAIN AN EXEMPTION A TAXPAYER MUST BEAR THE BURDEN OF
PROOF, INCLUDING BOTH THE BURDENS OF ESTABLISHING A PRIMA FACIE CASE
AND OF ULTIMATE PERSUASION, THAT HE DID NOT ADVOCATE THE VIOLENT
OVERTHROW OF GOVERNMENT.  WE SAID (P. 526): 

"THE VICE OF THE PRESENT PROCEDURE IS THAT, WHERE PARTICULAR SPEECH
FALLS CLOSE TO THE LINE SEPARATING THE LAWFUL AND THE UNLAWFUL, THE
POSSIBLITY OF MISTAKEN FACTFINDING - INHERENT IN ALL LITIGATION - WILL
CREATE THE DANGER THAT THE LEGITIMATE UTTERANCE WILL BE PENALIZED.  THE
MAN WHO KNOWS THAT HE MUST BRING FORTH PROOF AND PERSUADE ANOTHER OF
THE LAWFULNESS OF HIS CONDUCT NECESSARILY MUST STEER FAR WIDER OF THE
UNLAWFUL ZONE THAN IF THE STATE MUST BEAR THESE BURDENS.  THIS IS
ESPECIALLY TO BE FEARED WHEN THE COMPLEXITY OF THE PROOFS AND THE
GENERALITY OF THE STANDARDS APPLIED, CF. DENNIS V. UNITED STATES,
SUPRA, PROVIDE BUT SHIFTING SANDS ON WHICH THE LITIGANT MUST MAINTAIN
HIS POSITION.  HOW CAN A CLAIMANT WHOSE DECLARATION IS REJECTED
POSSIBLY SUSTAIN THE BURDEN OF PROVING THE NEGATIVE OF THESE COMPLEX
FACTUAL ELEMENTS?  IN PRACTICAL OPERATION, THEREFORE, THIS PROCEDURAL
DEVICE MUST NECESSARILY PRODUCE A RESULT WHICH THE STATE COULD NOT
COMMAND DIRECTLY.  IT CAN ONLY RESULT IN A DETERRENCE OF SPEECH WHICH
THE CONSTITUTION MAKES FREE." 

IT WOULD BE A SUFFICIENT ANSWER TO ANY SUGGESTION OF THE
APPLICABILITY OF THAT HOLDING TO THE PRESENT PROCEEDING TO OBSERVE THAT
SPEISER WAS EXPLICITLY LIMITED SO AS NOT TO REACH CASES WHERE, AS HERE,
THERE IS NO SHOWING OF AN INTENT TO PENALIZE POLITICAL BELIEFS. 
DISTINGUISHING GARNER V. BOARD OF PUBLIC WORKS, 341 U.S. 716; GERENDE
V. BOARD OF SUPERVISORS, 341 U.S. 56, AND AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382, THE COURT SAID (P. 527): 

"IN THESE CASES  ...  THERE WAS NO ATTEMPT DIRECTLY TO CONTROL SPEECH
BUT RATHER TO PROTECT, FROM AN EVIL SHOWN TO BE GRAVE, SOME INTEREST
CLEARLY WITHIN THE SPHERE OF GOVERNMENTAL CONCERN  ...  . EACH CASE
CONCERNED A LIMITED CLASS OF PERSONS IN OR ASPIRING TO PUBLIC POSITIONS
BY VIRTUE OF WHICH THEY COULD, IF EVILLY MOTIVATED, CREATE SERIOUS
DANGER TO THE PUBLIC SAFETY.  THE PRINCIPAL AIM OF THOSE STATUTES WAS
NOT TO PENALIZE POLITICAL BELIEFS BUT TO DENY POSITIONS TO PERSONS
SUPPOSED TO BE DANGEROUS BECAUSE THE POSITION MIGHT BE MISUSED TO THE
DETRIMENT OF THE PUBLIC." 

BUT THERE ARE ALSO ADDITIONAL FACTORS MAKING THE RATIONALE OF SPEISER
INAPPLICABLE TO THE CASE BEFORE US.  THERE IS NO UNEQUIVOCAL INDICATION
THAT CALIFORNIA IN THIS PROCEEDING HAS PLACED UPON PETITIONER THE
BURDEN OF PROOF OF NONADVOCACY OF VIOLENT OVERTHROW, AS DISTINGUISHED
FROM ITS OTHER REQUIREMENT OF "GOOD MORAL CHARACTER."  (FN12)  ALL IT
HAS PRESENTLY REQUIRED IS AN APPLICANT'S COOPERATION WITH THE
COMMITTEE'S SEARCH FOR EVIDENCE OF FORBIDDEN ADVOCACY.  PETITIONER HAS
BEEN DENIED ADMISSION TO THE CALIFORNIA BAR FOR OBSTRUCTING THE
COMMITTEE IN THE PERFORMANCE OF ITS NECESSARY FUNCTIONS OF EXAMINATION
AND CROSS-EXAMINATION, A RULING WHICH INDEED PRESUPPOSES THAT THE
BURDEN OF PRODUCING SUBSTANTIAL EVIDENCE ON THE ISSUE OF ADVOCACY WAS
NOT UPON PETITIONER BUT UPON THE COMMITTEE.  REQUIRING A DEFENDANT IN A
CIVIL PROCEEDING TO TESTIFY OR TO SUBMIT TO DISCOVERY HAS NEVER BEEN
THOUGHT TO SHIFT THE BURDEN OF PROOF TO HIM.  MOREOVER, WHEN THIS COURT
HAS ALLOWED A STATE TO COMMENT UPON A CRIMINAL DEFENDANT'S FAILURE TO
TESTIFY IT HAS BEEN CAREFUL TO NOTE THAT THIS DOES NOT RESULT IN
PLACING UPON HIM THE BURDEN OF PROVING HIS INNOCENCE.  ADAMSON V.
CALIFORNIA, 332 U.S. 46, 58. 

IN CONTRAST TO OUR KNOWLEDGE WITH RESPECT TO THE BURDEN OF
ESTABLISHING A PRIMA FACIE CASE, WE DO NOT NOW KNOW WHERE, UNDER
CALIFORNIA LAW, WOULD REST THE ULTIMATE BURDEN OR PERSUASION ON THE
ISSUE OF ADVOCACY OF VIOLENT OVERTHROW.  BUT IT IS FOR THE SUPREME
COURT OF CALIFORNIA FIRST TO DECIDE THIS QUESTION.  ONLY IF AND WHEN
THAT BURDEN IS PLACED BY THE STATE UPON A BAR APPLICANT CAN THERE BE
DRAWN IN QUESTION THE DISTINCTION MADE IN THE SPEISER CASE BETWEEN
PENALIZING STATUTES AND THOSE MERELY DENYING ACCESS TO POSITIONS WHERE
UNFITNESS MAY LEAD TO THE ABUSE OF STATE-GIVEN POWERS OR PRIVILEGES. 
THE ISSUE IS NOT NOW BEFORE US. 

THUS AS MATTERS NOW STAND, THERE IS NOTHING INVOLVED HERE WHICH IS
CONTRARY TO THE REASONING OF SPEISER, FOR DESPITE COMPELLED TESTIMONY
THE PROSPECTIVE BAR APPLICANT NEED NOT "STEER FAR WIDER OF THE UNLAWFUL
ZONE" (357 U.S., AT 526) FOR FEAR OF MISTAKEN JUDGMENT OR FACT FINDING
DECLARING UNLAWFUL SPEECH WHICH IS IN FACT PROTECTED BY THE
CONSTITUTION.  THIS IS SO AS TO THE ULTIMATE BURDEN OF PERSUASION FOR,
NOTWITHSTANDING HIS DUTY TO TESTIFY, THE LOSS RESULTING FROM A FAILURE
OF PROOF MAY, FOR ALL WE NOW KNOW, STILL FALL UPON THE STATE.  IT IS
LIKEWISE SO AS TO THE INITIAL BURDEN OF PRODUCTION, FOR THERE IS NO
INDICATION IN THE PROCEEDING ON REHEARING OF PETITIONER'S APPLICATION
THAT THE BAR COMMITTEE EXPECTED PETITIONER TO "SUSTAIN THE BURDEN OF
PROVING THE NEGATIVE" (357 U.S., AT 526) OF THOSE COMPLEX FACTUAL
ELEMENTS WHICH AMOUNT TO FORBIDDEN ADVOCACY OF VIOLENT OVERTHROW.  TO
THE CONTRARY IT IS CLEAR THAT THE COMMITTEE HAD ASSUMED THE BURDEN OF
PROVING THE AFFIRMATIVE OF THOSE ELEMENTS, BUT WAS PREVENTED FROM
ATTEMPTING TO DISCHARGE THAT BURDEN BY PETITONER'S REFUSAL TO ANSWER
RELEVANT QUESTIONS. 

THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA IS AFFIRMED. 

FN1  KONIGSBERG RESTED HIS REFUSALS, NOT ON ANY CLAIM OF PRIVILEGE
AGAINST SELF-INCRIMINATION, BUT ON THE GROUND THAT SUCH INQUIRIES WERE
BEYOND THE PURVIEW OF THE COMMITTEE'S AUTHORITY, AND INFRINGED RIGHTS
OF FREE THOUGHT, ASSOCIATION, AND EXPRESSION ASSURED HIM UNDER THE
STATE AND FEDERAL CONSTITUTIONS.  HE AFFIRMATIVELY ASSERTED, HOWEVER,
HIS DISBELIEF IN VIOLENT OVERTHROW OF GOVERNMENT. 

FN2  THE COMMITTEE MADE THE FOLLOWING FINDINGS RELEVANT TO THE ISSUES
NOW BEFORE US: 

"(1)  THAT THE QUESTIONS PUT TO THE APPLICANT BY THE COMMITTEE
CONCERNING PAST OR PRESENT MEMBERSHIP IN OR AFFILIATION WITH THE
COMMUNIST PARTY ARE MATERIAL TO A PROPER AND COMPLETE INVESTIGATION OF
HIS QUALIFICATIONS FOR ADMISSION TO PRACTICE LAW IN THE STATE OF
CALIFORNIA. 

"(2)  THAT THE REFUSAL OF APPLICANT TO ANSWER SAID QUESTIONS HAS
OBSTRUCTED A PROPER AND COMPLETE INVESTIGATION OF APPLICANT'S
QUALIFICATIONS FOR ADMISSION TO PRACTICE LAW IN THE STATE OF
CALIFORNIA." 

FN3  THE ESSENCE OF THE STATE COURT'S DECISION APPEARS IN THE
FOLLOWING EXTRACTS FROM ITS OPINION:

"  ...  THE COMMITTEE ACTION NOW BEFORE US CONTAINS NO FINDINGS OR
CONCLUSION THAT PETITIONER HAD FAILED TO ESTABLISH EITHER HIS GOOD
MORAL CHARACTER OR HIS ABSTENTION FROM ADVOCACY OF OVERTHROW OF THE
GOVERNMENT. 

"HERE IT IS THE REFUSAL TO ANSWER MATERIAL QUESTIONS WHICH IS THE
BASIS FOR DENIAL OF CERTIFICATION  ...  . 

"  ...  TO ADMIT APPLICANTS WHO REFUSE TO ANSWER THE COMMITTEE'S
QUESTIONS UPON THESE SUBJECTS WOULD NULLIFY THE CONCEDEDLY VALID
LEGISLATIVE DIRECTION TO THE COMMITTEE.  SUCH A RULE WOULD EFFECTIVELY
STIFLE COMMITTEE INQUIRY UPON ISSUES LEGISLATIVELY DECLARED TO BE
RELEVANT TO THAT ISSUE."  ID., AT 772, 774, 344 P.2D, AT 779, 780. 

JUSTICE TRAYNOR DISSENTED ON THE GROUND THAT THE CALIFORNIA SUPREME
COURT, NOT BEING REQUIRED BY STATUTE TO EXCLUDE BAR APPLICANTS ON THE
SOLE GROUND OF THEIR REFUSAL TO ANSWER QUESTIONS CONCERNING POSSIBLE
ADVOCACY OF THE OVERTHROW OF GOVERNMENT, SHOULD NOT ADOPT SUCH AN
EXCLUSIONARY RULE, AT LEAST WHERE THE COMMITTEE OF BAR EXAMINERS HAS
NOT COME FORWARD WITH SOME EVIDENCE OF ADVOCACY.  HE DECLINED TO REACH
CONSTITUTIONAL ISSUES.  JUSTICE PETERS DISSENTED ON FEDERAL
CONSTITUTIONAL GROUNDS AND IN THE BELIEF THAT THIS COURT'S DECISION IN
THE FIRST KONIGSBERG CASE REQUIRED IMMEDIATE ADMISSION OF THE
APPLICANT.  CHIEF JUSTICE GIBSON DID NOT PARTICIPATE IN THE DECISION. 

FN4  ALL OF THE 50 STATES, AS WELL AS PUERTO RICO AND THE DISTRICT OF
COLUMBIA, PRESCRIBE QUALIFICATIONS OF MORAL CHARACTER AS PRECONDITIONS
FOR ADMISSION TO THE PRACTICE OF LAW.  SEE WEST PUBLISHING CO., RULES
FOR ADMISSION TO THE BAR (35TH ED. 1957); SURVEY OF THE LEGAL
PROFESSION, BAR EXAMINATIONS AND REQUIREMENTS FOR ADMISSION TO THE BAR
(1952); JACKSON, CHARACTER REQUIREMENTS FOR ADMISSION TO THE BAR, 20
FORDHAM L. REV. 305 (1951); ANNOT., 64 A.L.R.2D 301 (1959). 

THE BURDEN OF DEMONSTRATING GOOD MORAL CHARACTER IS REGULARLY PLACED
UPON THE BAR APPLICANT.  EX PARTE MONTGOMERY, 249 ALA. 378, 31 SO. 2D
85; IN RE STEPHENSON, 243 ALA.  342, 10 SO. 2D 1; APPLICATION OF
COURTNEY, 83 ARIZ. 231, 319 P.2D 991; ARK. STAT. ANN., 1947, SECS. 25
101, 25-103; SPEARS V. STATE BAR, 211 CAL. 183; 294 P. 697; O'BRIEN'S
PETITION, 79 CONN. 46, 63 A. 777; IN RE DURANT, 80 CONN. 140, 147, 67
A. 497; DEL. SUP.  CT. RULE 31(1)(A)(A), (2)(A)(A); COLEMAN V. WATTS,
81 SO. 2D 650 (FLA.)(BURDEN OF PROOF ON APPLICANT; PRIMA FACIE SHOWING
SHIFTS BURDEN OF GOING FORWARD TO EXAMINERS); GORDON V. CLINKSCALES,
215 GA. 843, 114 S.E.2D 15; IN RE LATIMER, 11 ILL. 2D 327, 143 N.E.2D
20 (SEMBLE); ROSENCRANZ V. TIDRINGTON, 193 IND. 472, 141 N.E. 58; IN RE
MEREDITH, 272 S.W.2D 456 (KY.); IN RE MEYERSON, 190 MD. 671, 59 A.2D
489 (SEMBLE); MATTER OF KEENAN, 313 MASS. 186, 47 N.E.2D 12;
APPLICATION OF SMITH, 220 MINN. 197, 19 N.W.2D 324 (SEMBLE); ON
APPLICATION FOR ATTORNEY'S LICENSE, 21 N.J.L. 345; APPLICATION OF
CASSIDY, 268 APP. DIV. 282, 51 N.Y.S.2D 202, AFF'D, 296 N.Y. 926, 73
N.E.2D 41; APPLICATION OF FARMER, 191 N.C. 235, 131 S.E. 661; IN RE
WEINSTEIN, 150 ORE.  1, 42 P.2D 744; STATE EX REL. BOARD V. POYNTZ, 152
ORE.  592, 52 P.2D 1141 (BURDEN OF PROOF ON APPLICANT; PRIMA FACIE
SHOWING SHIFTS BURDEN OF GOING FORWARD TO EXAMINERS); IN THE MATTER OF
EARY, 134 W.VA. 204, 58 S.E.2D 647 (SEMBLE). 

FN5  FOR REASONS GIVEN LATER (PP. 55-56, INFRA), WE NEED NOT DECIDE
WHETHER CALIFORNIA'S BURDEN-OF-PROOF RULE COULD CONSTITUTIONALLY BE
APPLIED, AS IT WAS BY THE COMMITTEE AFTER THE FIRST KONIGSBERG
PROCEEDINGS, TO THE REQUIREMENT OF NONADVOCACY OF VIOLENT OVERTHROW. 

FN6  THE COURT ASSUMED, BUT DID NOT DISCUSS, THE CONSTITUTIONALITY OF
CALIFORNIA'S BURDEN-OF-PROOF RULE AS APPLIED TO THE NONADVOCACY-OF
FORCIBLE-OVERTHROW REQUIREMENT OF THE CALIFORNIA STATUTE. 

FN7  MOREOVER, EVEN IF THERE COULD BE DEBATE AS TO WHETHER THIS
COURT'S PRIOR DECISION PREVENTED NEW HEARINGS ON MATTERS THAT HAD
ALREADY TRANSPIRED AT THE TIME OF THE FIRST STATE HEARINGS, THERE CAN
BE NO DOUBT THAT SUCH DECISION DID NOT PREVENT CALIFORNIA FROM
INVESTIGATING PETITIONER'S ACTIONS DURING THE PERIOD SUBSEQUENT TO THE
FIRST HEARING.  THEREFORE WE WOULD IN ANY CASE BE PRESENTED WITH THE
QUESTION OF THE CONSTITUTIONALITY OF THE STATE'S REFUSING TO ADMIT
PETITIONER TO THE PRACTICE OF LAW BECAUSE OF HIS DECLINING TO ANSWER
WHETHER HE HAS BEEN A MEMBER OF THE COMMUNIST PARTY SINCE THE
TERMINATION OF THE FIRST SET OF HEARINGS. 

FN8  THE TRANSCRIPT OF THE ORIGINAL HEARINGS BEFORE THE COMMITTEE HAS
BEEN MADE PART OF THE RECORD BEFORE US IN THE PRESENT CASE. 

FN9  THERE IS NO BASIS FOR ANY INTIMATION THAT THE CALIFORNIA SUPREME
COURT FASHIONED A SPECIAL PROCEDURAL RULE FOR THE PURPOSES OF THIS
PARTICULAR CASE.  THE CALIFORNIA BAR COMMITTEE HAS IN THE PAST DECLINED
TO CERTIFY APPLICANTS WHO REFUSED TO ANSWER PERTINENT QUESTIONS.  SEE
FARLEY (SECRETARY, COMMITTEE OF BAR EXAMINERS), CHARACTER INVESTIGATION
OF APPLICANTS FOR ADMISSION, 29 CAL. STATE BAR JOURNAL, 454, 457, 466
(1954).  NO MORE DOES THE STATE'S ACTION BEAR ANY OF THE HALLMARKS OF A
BILL OF ATTAINDER OR OF AN EX POST FACTO REGULATION, SEE CUMMINGS V.
MISSOURI, 4 WALL 277; CF. UNITED STATES V. LOVETT, 328 U.S. 303,
ESPECIALLY IN LIGHT OF THE FACT THAT PETITIONER WAS EXPLICITLY WARNED
IN ADVANCE OF THE CONSEQUENCES OF HIS REFUSAL TO ANSWER.  LIKEWISE,
THERE IS NO ROOM FOR ATTRIBUTING TO THE COMMITTEE A SURREPTITIOUS
PURPOSE TO EXCLUDE KONIGSBERG BY THE DEVICE OF PUTTING TO HIM QUESTIONS
WHICH IT WAS KNOWN IN ADVANCE HE WOULD NOT ANSWER, AND THEN JUSTIFYING
EXCLUSION ON THE PREMISE OF HIS REFUSAL TO RESPOND.  SO FAR AS THIS
RECORD SHOWS KONIGSBERG WAS EXCLUDED ONLY BECAUSE HIS REFUSAL TO ANSWER
HAD IMPEDED THE INVESTIGATION OF THE COMMITTEE, A GROUND OF REJECTION
WHICH IT IS STILL WITHIN HIS POWER TO REMOVE. 

FN10  THAT VIEW, WHICH OF COURSE CANNOT BE RECONCILED WITH THE LAW
RELATING TO LIBEL, SLANDER, MISREPRESENTATION, OBSCENITY, PERJURY,
FALSE ADVERTISING, SOLICITATION OF CRIME, COMPLICITY BY ENCOURAGEMENT,
CONSPIRACY, AND THE LIKE, IS SAID TO BE COMPELLED BY THE FACT THAT THE
COMMANDS OF THE FIRST AMENDMENT ARE STATED IN UNQUALIFIED TERMS:
"CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING THE FREEDOM OF SPEECH, OR
OF THE PRESS; OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE  ...
."  BUT AS MR. JUSTICE HOLMES ONCE SAID:  "THE PROVISIONS OF THE
CONSTITUTION ARE NOT MATHEMATICAL FORMULAS HAVING THEIR ESSENCE IN
THEIR FORM; THEY ARE ORGANIC LIVING INSTITUTIONS TRANSPLANTED FROM
ENGLISH SOIL.  THEIR SIGNIFICANCE IS VITAL NOT FORMAL; IT IS TO BE
GATHERED NOT SIMPLY BY TAKING THE WORDS AND A DICTIONARY, BUT BY
CONSIDERING THEIR ORIGIN AND THE LINE OF THEIR GROWTH."  GOMPERS V.
UNITED STATES, 233 U.S. 604, 610.  IN THIS CONNECTION ALSO COMPARE THE
EQUALLY UNQUALIFIED COMMAND OF THE SECOND AMENDMENT:  "THE RIGHT OF THE
PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED."  AND SEE UNITED
STATES V. MILLER, 307 U.S. 174. 

FN11  THAT THE FIRST AMENDMENT IMMUNITY FOR SPEECH, PRESS AND
ASSEMBLY HAS TO BE RECONCILED WITH VALID BUT CONFLICTING GOVERNMENTAL
INTERESTS WAS CLEAR TO HOLMES, J. ("I DO NOT DOUBT FOR A MOMENT THAT BY
THE SAME REASONING THAT WOULD JUSTIFY PUNISHING PERSUASION TO MURDER,
THE UNITED STATES CONSTITUTIONALLY MAY PUNISH SPEECH THAT PRODUCES OR
IS INTENDED TO PRODUCE A CLEAR AND IMMINENT DANGER THAT IT WILL BRING
ABOUT FORTHWITH CERTAIN SUBSTANTIVE EVILS THAT THE UNITED STATES
CONSTITUTIONALLY MAY SEEK TO PREVENT."  ABRAMS V. UNITED STATES, 250
U.S. 616, 627); TO BRANDEIS, J. ("BUT, ALTHOUGH THE RIGHTS OF FREE
SPEECH AND ASSEMBLY ARE FUNDAMENTAL, THEY ARE NOT IN THEIR NATURE
ABSOLUTE."  WHITNEY V. CALIFORNIA, 274 U.S. 357, 373); AND TO HUGHES,
C.J. ("THE PROTECTION OF FREE SPEECH EVEN AS TO PREVIOUS RESTRAINT IS
NOT ABSOLUTELY UNLIMITED."  NEAR V. MINNESOTA, 283 U.S. 697, 716.) 

FN12  INDEED, WE CANNOT TELL WHETHER CALIFORNIA DID SO EVEN IN THE
EARLIER PROCEEDING, SINCE THE CALIFORNIA SUPREME COURT'S DENIAL OF
REVIEW OF THE COMMITTEE'S ORIGINAL REJECTION OF KONIGSBERG WAS WITHOUT
OPINION, AND FOR ALL WE KNOW MAY HAVE RESTED ALONE ON PETITIONER'S
FAILURE TO MEET HIS STATE BURDEN OF PROOF AS TO "GOOD MORAL
CHARACTER." 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

WHEN THIS CASE WAS HERE BEFORE, WE REVERSED A JUDGMENT OF THE
CALIFORNIA SUPREME COURT BARRING THE PETITIONER KONIGSBERG FROM THE
PRACTICE OF LAW IN THAT STATE ON THE GROUND THAT HE HAD FAILED TO CARRY
THE BURDEN OF PROVING HIS GOOD MORAL CHARACTER AND THAT HE DID NOT
ADVOCATE FORCIBLE OVERTHROW OF THE GOVERNMENT.  IN DOING SO, WE HELD
THAT THERE WAS "NO EVIDENCE IN THE RECORD" WHICH COULD RATIONALLY
JUSTIFY SUCH A CONCLUSION.  (FN1)  UPON REMAND, THE SUPREME COURT OF
CALIFORNIA REFERRED THE MATTER BACK TO THE COMMITTEE OF STATE BAR
EXAMINERS FOR FURTHER HEARINGS, AT WHICH TIME KONIGSBERG PRESENTED EVEN
MORE EVIDENCE OF HIS GOOD CHARACTER.  THE COMMITTEE PRODUCED NO
EVIDENCE WHATEVER WHICH TENDED IN THE SLIGHTEST DEGREE TO REFLECT UPON
THE GOOD CHARACTER AND PATRIOTISM WHICH WE HAD ALREADY HELD KONIGSBERG
TO HAVE ESTABLISHED.  THE CASE IS THEREFORE NOW BEFORE US WITH THE
PRIOR ADJUDICATION THAT KONIGSBERG POSSESSES THE REQUISITE GOOD
CHARACTER AND PATRIOTISM FOR ADMISSION TO THE BAR UNIMPAIRED. 

WHAT THE COMMITTEE DID DO UPON REMAND WAS TO REPEAT THE IDENTICAL
QUESTIONS WITH REGARD TO KONIGSBERG'S SUSPECTED ASSOCIATION WITH
COMMUNISTS TWENTY YEARS AGO THAT IT HAD ASKED AND HE HAD REFUSED TO
ANSWER AT THE FIRST SERIES OF HEARINGS.  KONIGSBERG AGAIN REFUSED TO
ANSWER THESE QUESTIONS AND THE COMMITTEE AGAIN REFUSED TO CERTIFY HIM
AS FIT FOR ADMISSION TO THE BAR, THIS TIME ON THE GROUND THAT HIS
REFUSAL TO ANSWER HAD OBSTRUCTED THE REQUIRED INVESTIGATION INTO HIS
QUALIFICATIONS, A GROUND SUBSEQUENTLY ADOPTED BY A MAJORITY OF THE
SUPREME COURT OF THAT STATE.  (FN2) 

THUS, CALIFORNIA PURPORTS TO BE DENYING KONIGSBERG ADMISSION TO ITS
BAR SOLELY ON THE GROUND THAT HE HAS REFUSED TO ANSWER QUESTIONS PUT TO
HIM BY THE COMMITTEE OF BAR EXAMINERS.  BUT WHEN THE CASE WAS HERE
BEFORE, WE OBSERVED:  "THERE IS NOTHING IN THE CALIFORNIA STATUTES, THE
CALIFORNIA DECISIONS, OR EVEN IN THE RULES OF THE BAR COMMITTEE, WHICH
HAS BEEN CALLED TO OUR ATTENTION, THAT SUGGESTS THAT FAILURE TO ANSWER
A BAR EXAMINER'S INQUIRY IS, IPSO FACTO, A BASIS FOR EXCLUDING AN
APPLICANT FROM THE BAR, IRRESPECTIVE OF HOW OVERWHELMING IS HIS SHOWING
OF GOOD CHARACTER OR LOYALTY OR HOW FLIMSY ARE THE SUSPICIONS OF THE
BAR EXAMINERS."  (FN3)  AND WE HAVE BEEN POINTED TO NO SUBSEQUENT
CALIFORNIA STATUTES, RULES, REGULATIONS OR COURT DECISIONS WHICH
REQUIRE OR EVEN PERMIT REJECTION OF A LAWYER'S APPLICATION FOR
ADMISSION SOLELY BECAUSE HE REFUSES TO ANSWER QUESTIONS.  (FN4)  IN
THIS SITUATION, IT SEEMS TO ME THAT KONIGSBERG HAS BEEN REJECTED ON A
GROUND THAT IS NOT SUPPORTED BY ANY AUTHORITATIVELY DECLARED RULE OF
LAW FOR THE STATE OF CALIFORNIA.  (FN5)  THIS ALONE WOULD BE ENOUGH FOR
ME TO VOTE TO REVERSE THE JUDGMENT.  THERE ARE OTHER REASONS, HOWEVER. 
KONIGSBERG'S OBJECTION TO ANSWERING QUESTIONS AS TO WHETHER HE IS OR
WAS A MEMBER OF THE COMMUNIST PARTY HAS, FROM THE VERY BEGINNING, BEEN
BASED UPON THE CONTENTION THAT THE GUARANTEES OF FREE SPEECH AND
ASSOCIATION OF THE FIRST AMENDMENT AS MADE CONTROLLING UPON THE STATES
BY THE FOURTEENTH AMENDMENT PRECLUDE CALIFORNIA FROM DENYING HIM
ADMISSION TO ITS BAR FOR REFUSING TO ANSWER SUCH QUESTIONS.  IN THIS I
THINK KONIGSBERG HAS BEEN CORRECT.  CALIFORNIA HAS APPARENTLY NOT EVEN
ATTEMPTED TO MAKE ACTUAL PRESENT MEMBERSHIP IN THE COMMUNIST PARTY A
BAR TO THE PRACTICE OF LAW, AND EVEN IF IT HAD, I ASSUME IT WOULD NOT
BE CONTENDED THAT SUCH A LAW COULD BE APPLIED TO CONDUCT THAT TOOK
PLACE BEFORE THE LAW WAS PASSED.  FOR SUCH AN APPLICATION WOULD, I
THINK, NOT ONLY BE A CLEAR VIOLATION OF THE EX POST FACTO PROVISION OF
THE FEDERAL CONSTITUTION, BUT WOULD ALSO CONSTITUTE A BILL OF ATTAINDER
SQUARELY WITHIN THIS COURT'S HOLDINGS IN CUMMINGS V. MISSOURI (FN6) AND
EX PARTE GARLAND.  (FN7)  AND YET IT SEEMS TO ME THAT THIS RECORD
SHOWS, BEYOND ANY SHADOW OF A DOUBT, THAT THE REASON KONIGSBERG HAS
BEEN REJECTED IS BECAUSE THE COMMITTEE SUSPECTS THAT HE WAS AT ONE TIME
A MEMBER OF THE COMMUNIST PARTY.  (FN8)  I AGREE WITH THE IMPLICATION
OF THE MAJORITY OPINION THAT THIS IS NOT ADEQUATE GROUND TO REJECT
KONIGSBERG AND THAT IT COULD NOT BE CONSTITUTIONALLY DEFENDED.   (FN9) 

THE MAJORITY AVOIDS THE OTHERWISE UNAVOIDABLE NECESSITY OF REVERSING
THE JUDGMENT BELOW ON THAT GROUND BY SIMPLY REFUSING TO LOOK BEYOND THE
REASON GIVEN BY THE COMMITTEE TO JUSTIFY KONIGSBERG'S REJECTION.  IN
THIS WAY, THE MAJORITY REACHES THE QUESTION AS TO WHETHER THE COMMITTEE
CAN CONSTITUTIONALLY REJECT KONIGSBERG FOR REFUSING TO ANSWER QUESTIONS
GROWING OUT OF HIS CONJECTURED PAST MEMBERSHIP IN THE COMMUNIST PARTY
EVEN THOUGH IT COULD NOT CONSTITUTIONALLY REJECT HIM IF HE DID ANSWER
THOSE QUESTIONS AND HIS ANSWERS HAPPENED TO BE AFFIRMATIVE.  THE
MAJORITY THEN GOES ON TO HOLD THAT THE COMMITTEE, BY VIRTUE OF ITS
POWER TO REJECT APPLICANTS WHO ADVOCATE THE VIOLENT OVERTHROW OF THE
GOVERNMENT, CAN REJECT APPLICANTS WHO REFUSE TO ANSWER QUESTIONS IN ANY
WAY RELATED TO THAT FACT, EVEN THOUGH THE APPLICANT HAS SWORN UNDER
OATH THAT HE DOES NOT ADVOCATE VIOLENT OVERTHROW OF THE GOVERNMENT AND
EVEN THOUGH, AS THE MAJORITY CONCEDES, QUESTIONS AS TO THE POLITICAL
ASSOCIATIONS OF AN APPLICANT SUBJECT "SPEECH AND ASSOCIATION TO THE
DETERRENCE OF SUBSEQUENT DISCLOSURE."  I CANNOT AGREE WITH THAT
HOLDING. 

THE RECOGNITION THAT CALIFORNIA HAS SUBJECTED "SPEECH AND ASSOCIATION
TO THE DETERRENCE OF SUBSEQUENT DISCLOSURE" IS, UNDER THE FIRST
AMENDMENT, SUFFICIENT IN ITSELF TO RENDER THE ACTION OF THE STATE
UNCONSTITUTIONAL UNLESS ONE SUBSCRIBES TO THE DOCTRINE THAT PERMITS
CONSTITUTIONALLY PROTECTED RIGHTS TO BE "BALANCED" AWAY WHENEVER A
MAJORITY OF THIS COURT THINKS THAT A STATE MIGHT HAVE INTEREST
SUFFICIENT TO JUSTIFY ABRIDGMENT OF THOSE FREEDOMS.  AS I HAVE
INDICATED MANY TIMES BEFORE, (FN10) I DO NOT SUBSCRIBE TO THAT DOCTRINE
FOR I BELIEVE THAT THE FIRST AMENDMENT'S UNEQUIVOCAL COMMAND THAT THERE
SHALL BE NO ABRIDGMENT OF THE RIGHTS OF FREE SPEECH AND ASSEMBLY SHOWS
THAT THE MEN WHO DRAFTED OUR BILL OF RIGHTS DID ALL THE "BALANCING"
THAT WAS TO BE DONE IN THIS FIELD.  THE HISTORY OF THE FIRST AMENDMENT
IS TOO WELL KNOWN TO REQUIRE REPEATING HERE EXCEPT TO SAY THAT IT
CERTAINLY CANNOT BE DENIED THAT THE VERY OBJECT OF ADOPTING THE FIRST
AMENDMENT, AS WELL AS THE OTHER PROVISIONS OF THE BILL OF RIGHTS, WAS
TO PUT THE FREEDOMS PROTECTED THERE COMPLETELY OUT OF THE AREA OF ANY
CONGRESSIONAL CONTROL THAT MAY BE ATTEMPTED THROUGH THE EXERCISE OF
PRECISELY THOSE POWERS THAT ARE NOW BEING USED TO "BALANCE" THE BILL OF
RIGHTS OUT OF EXISTENCE.  (FN11)  OF COURSE, THE FIRST AMENDMENT
ORIGINALLY APPLIED ONLY TO THE FEDERAL GOVERNMENT AND DID NOT APPLY TO
THE STATES.  BUT WHAT WAS ORIGINALLY TRUE ONLY OF CONGRESS IS NOW NO
LESS TRUE WITH RESPECT TO THE GOVERNMENTS OF THE STATES, UNLESS A
MAJORITY OF THIS COURT WANTS TO OVERRULE A LARGE NUMBER OF CASES IN
WHICH IT HAS BEEN HELD UNEQUIVOCALLY THAT THE FOURTEENTH AMENDMENT MADE
THE FIRST AMENDMENT'S PROVISIONS CONTROLLING UPON THE STATES.  (FN12) 

THE COURT ATTEMPTS TO JUSTIFY ITS REFUSAL TO APPLY THE PLAIN MANDATE
OF THE FIRST AMENDMENT IN PART BY REFERENCE TO THE SO-CALLED "CLEAR AND
PRESENT DANGER TEST" FORCEFULLY USED BY MR. JUSTICE HOLMES AND MR.
JUSTICE BRANDEIS, NOT TO NARROW BUT TO BROADEN THE THEN PREVAILING
INTERPRETATION OF FIRST AMENDMENT FREEDOMS.  (FN13)  I THINK VERY
LITTLE CAN BE FOUND IN ANYTHING THEY EVER SAID THAT WOULD PROVIDE
SUPPORT FOR THE "BALANCING TEST" PRESENTLY IN USE.  INDEED, THE IDEA OF
"BALANCING" AWAY FIRST AMENDMENT FREEDOMS APPEARS TO ME TO BE WHOLLY
INCONSISTENT WITH THE VIEW, STRONGLY ESPOUSED BY JUSTICE HOLMES AND
BRANDEIS, THAT THE BEST TEST OF TRUTH IS THE POWER OF THE THOUGHT TO
GET ITSELF ACCEPTED IN THE COMPETITION OF THE MARKET.  (FN14)  THE
"CLEAR AND PRESENT DANGER TEST" WAS URGED AS CONSISTENT WITH THIS VIEW
IN THAT IT PROTECTED SPEECH IN ALL CASES EXCEPT THOSE IN WHICH DANGER
WAS SO IMMINENT THAT THERE WAS NO TIME FOR RATIONAL DISCUSSION.  (FN15)
THE "BALANCING TEST," ON THE OTHER HAND, RESTS UPON THE NOTION THAT
SOME IDEAS ARE SO DANGEROUS THAT GOVERNMENT NEED NOT RESTRICT ITSELF TO
CONTRARY ARGUMENTS AS A MEANS OF OPPOSING THEM EVEN WHERE THERE IS
AMPLE TIME TO DO SO.  THUS HERE, WHERE THERE IS NOT A SEMBLANCE OF A
"CLEAR AND PRESENT DANGER," AND WHERE THERE IS MORE THAN AMPLE TIME IN
WHICH TO COMBAT BY DISCUSSION ANY IDEA WHICH MAY BE INVOLVED, THE
MAJORITY PERMITS THE STATE OF CALIFORNIA TO ADOPT MEASURES CALCULATED
TO SUPPRESS THE ADVOCACY OF VIEWS ABOUT GOVERNMENTAL AFFAIRS. 

I RECOGNIZE, OF COURSE, THAT THE "CLEAR AND PRESENT DANGER TEST,"
THOUGH ITSELF A GREAT ADVANCE TOWARD INDIVIDUAL LIBERTY OVER SOME
PREVIOUS NOTIONS OF THE PROTECTIONS AFFORDED BY THE FIRST AMENDMENT,
(FN16) DOES NOT GO AS FAR AS MY OWN VIEWS AS TO THE PROTECTION THAT
SHOULD BE ACCORDED THESE FREEDOMS.  I AGREE WITH JUSTICE HOLMES AND
BRANDEIS, HOWEVER, THAT A PRIMARY PURPOSE OF THE FIRST AMENDMENT WAS TO
INSURE THAT ALL IDEAS WOULD BE ALLOWED TO ENTER THE "COMPETITION OF THE
MARKET."  BUT I FEAR THAT THE CREATION OF "TESTS" BY WHICH SPEECH IS
LEFT UNPROTECTED UNDER CERTAIN CIRCUMSTANCES IS A STANDING INVITATION
TO ABRIDGE IT.  THIS IS NOWHERE MORE CLEARLY INDICATED THAN BY THE
SUDDEN TRANSFORMATION OF THE "CLEAR AND PRESENT DANGER TEST" IN DENNIS
V. UNITED STATES.  IN THAT CASE, THIS COURT ACCEPTED JUDGE LEARNED
HAND'S "RESTATEMENT" OF THE "CLEAR AND PRESENT DANGER TEST":  "IN EACH
CASE COURTS MUST ASK WHETHER THE GRAVITY OF THE 'EVIL,' DISCOUNTED BY
ITS IMPROBABILITY, JUSTIFIES SUCH INVASION OF FREE SPEECH AS IS
NECESSARY TO AVOID THE DANGER."  (FN17) AFTER THE "CLEAR AND PRESENT
DANGER TEST" WAS DILUTED AND WEAKENED BY BEING RECAST IN TERMS OF THIS
"BALANCING" FORMULA, THERE SEEMS TO ME TO BE MUCH ROOM TO DOUBT THAT
JUSTICE HOLMES AND BRANDEIS WOULD EVEN HAVE RECOGNIZED THEIR TEST.  AND
THE RELIANCE UPON THAT WEAKENED "TEST" BY THE MAJORITY HERE, WITHOUT
EVEN SO MUCH AS AN ATTEMPT TO FIND EITHER A "CLEAR" OR A "PRESENT"
DANGER, IS ONLY ANOTHER PERSUASIVE REASON FOR REJECTING ALL SUCH
"TESTS" AND ENFORCING THE FIRST AMENDMENT ACCORDING TO ITS TERMS. 

THE COURT SUGGESTS THAT A "LITERAL READING OF THE FIRST AMENDMENT"
WOULD BE TOTALLY UNREASONABLE BECAUSE IT WOULD INVALIDATE MANY WIDELY
ACCEPTED LAWS.  I DO NOT KNOW TO WHAT EXTENT THIS IS TRUE.  I DO NOT
BELIEVE, FOR EXAMPLE, THAT IT WOULD INVALIDATE LAWS RESTING UPON THE
PREMISE THAT WHERE SPEECH IS AN INTEGRAL PART OF UNLAWFUL CONDUCT THAT
IS GOING ON AT THE TIME, THE SPEECH CAN BE USED TO ILLUSTRATE,
EMPHASIZE AND ESTABLISH THE UNLAWFUL CONDUCT.  (FN18) ON THE OTHER
HAND, IT CERTAINLY WOULD INVALIDATE ALL LAWS THAT ABRIDGE THE RIGHT OF
THE PEOPLE TO DISCUSS MATTERS OF RELIGIOUS OR PUBLIC INTEREST, IN THE
BROADEST MEANING OF THOSE TERMS, FOR IT IS CLEAR THAT A DESIRE TO
PROTECT THIS RIGHT WAS THE PRIMARY PURPOSE OF THE FIRST AMENDMENT. 
SOME PEOPLE HAVE ARGUED, WITH MUCH FORCE, THAT THE FREEDOMS GUARANTEED
BY THE FIRST AMENDMENT ARE LIMITED TO SOMEWHAT BROAD AREAS LIKE THOSE. 
(FN19)  BUT I BELIEVE THIS NATION'S SECURITY AND TRANQUILITY CAN BEST
BE SERVED BY GIVING THE FIRST AMENDMENT THE SAME BROAD CONSTRUCTION
THAT ALL BILL OF RIGHTS GUARANTEES DESERVE.  (FN20) 

THE DANGER OF FAILING TO CONSTRUE THE FIRST AMENDMENT IN THIS MANNER
IS, I THINK, DRAMATICALLY ILLUSTRATED BY THE DECISION OF THIS COURT IN
BEAUHARNAIS V. ILLINOIS, (FN21) ONE OF THE CASES RELIED UPON FOR THIS
HOLDING TODAY.  IN THAT CASE, A MAJORITY OF THIS COURT UPHELD THE
CONVICTION OF A MAN WHOSE ONLY "CRIME" WAS THE CIRCULATION OF A
PETITION TO BE PRESENTED TO THE CITY COUNCIL OF CHICAGO URGING THAT
BODY TO FOLLOW A POLICY OF RACIAL SEGREGATION IN LANGUAGE THAT THE
STATE OF ILLINOIS CHOSE TO REGARD AS "LIBELOUS" AGAINST NEGROES. 
HOLDING THAT "LIBELOUS UTTERANCES" WERE NOT INCLUDED IN THE "SPEECH"
PROTECTED AGAINST STATE INVASION BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, (FN22) THIS COURT THERE CONCLUDED THAT THE
PETITION WHICH HAD BEEN CIRCULATED FELL WITHIN THAT EXCEPTION AND
THEREFORE OUTSIDE THE AREA OF CONSTITUTIONALLY PROTECTED SPEECH BECAUSE
IT MADE CHARGES AGAINST THE ENTIRE NEGRO POPULATION OF THIS COUNTRY. 
THUS, BEAUHARNAIS WAS HELD TO HAVE SIMULTANEOUSLY "LIBELLED" SOME
FIFTEEN MILLION PEOPLE.  AND BY THIS TREMENDOUS EXPANSION OF THE
CONCEPT OF "LIBEL," WHAT SOME PEOPLE MIGHT REGARD AS A RELATIVELY MINOR
EXCEPTION TO THE FULL PROTECTION OF FREEDOM OF SPEECH HAD SUDDENLY
BECOME A VEHICLE WHICH COULD BE USED TO JUSTIFY A RETURN TO THE VICIOUS
ERA OF THE LAWS OF SEDITIOUS LIBEL, IN WHICH THE POLITICAL PARTY IN
POWER, BOTH IN ENGLAND AND IN THIS COUNTRY, USED SUCH LAWS TO PUT ITS
OPPONENTS IN JAIL.  (FN23) 

WHATEVER MAY BE THE WISDOM, HOWEVER, OF AN APPROACH THAT WOULD REJECT
EXCEPTIONS TO THE PLAIN LANGUAGE OF THE FIRST AMENDMENT BASED UPON SUCH
THINGS AS "LIBEL," "OBSCENITY" (FN24) OR "FIGHTING WORDS," (FN25) SUCH
IS NOT THE ISSUE IN THIS CASE.  FOR THE MAJORITY DOES NOT, AND SURELY
WOULD NOT, CONTEND THAT THE KIND OF SPEECH INVOLVED IN THIS CASE -
WHOLLY RELATED AS IT IS TO CONFLICTING IDEAS ABOUT GOVERNMENTAL AFFAIRS
AND POLICIES - FALLS OUTSIDE THE PROTECTION OF THE FIRST AMENDMENT,
HOWEVER NARROWLY THAT AMENDMENT MAY BE INTERPRETED.  SO THE ONLY ISSUE
PRESENTLY BEFORE US IS WHETHER SPEECH THAT MUST BE WELL WITHIN THE
PROTECTION OF THE AMENDMENT SHOULD BE GIVEN COMPLETE PROTECTION OR
WHETHER IT IS ENTITLED ONLY TO SUCH PROTECTION AS IS CONSISTENT IN THE
MINDS OF A MAJORITY OF THIS COURT WITH WHATEVER INTEREST THE GOVERNMENT
MAY BE ASSERTING TO JUSTIFY ITS ABRIDGMENT.  THE COURT, BY STATING
UNEQUIVOCALLY THAT THERE ARE NO "ABSOLUTES" UNDER THE FIRST AMENDMENT,
NECESSARILY TAKES THE POSITION THAT EVEN SPEECH THAT IS ADMITTEDLY
PROTECTED BY THE FIRST AMENDMENT IS SUBJECT TO THE "BALANCING TEST" AND
THAT THEREFORE NO KIND OF SPEECH IS TO BE PROTECTED IF THE GOVERNMENT
CAN ASSERT AN INTEREST OF SUFFICIENT WEIGHT TO INDUCE THIS COURT TO
UPHOLD ITS ABRIDGMENT.  IN MY JUDGMENT, SUCH A SWEEPING DENIAL OF THE
EXISTENCE OF ANY INALIENABLE RIGHT TO SPEAK UNDERMINES THE VERY
FOUNDATION UPON WHICH THE FIRST AMENDMENT, THE BILL OF RIGHTS, AND,
INDEED, OUR ENTIRE STRUCTURE OF GOVERNMENT REST.  (FN26)  THE FOUNDERS
OF THIS NATION ATTEMPTED TO SET UP A LIMITED GOVERNMENT WHICH LEFT
CERTAIN RIGHTS IN THE PEOPLE - RIGHTS THAT COULD NOT BE TAKEN AWAY
WITHOUT AMENDMENT OF THE BASIC CHARTER OF GOVERNMENT.  THE MAJORITY'S
"BALANCING TEST" TELLS US THAT THIS IS NOT SO.  IT TELLS US THAT NO
RIGHT TO THINK, SPEAK OR PUBLISH EXISTS IN THE PEOPLE THAT CANNOT BE
TAKEN AWAY IF THE GOVERNMENT FINDS IT SUFFICIENTLY IMPERATIVE OR
EXPEDIENT TO DO SO. THUS, THE "BALANCING TEST" TURNS OUR "GOVERNMENT OF
THE PEOPLE, BY THE PEOPLE AND FOR THE PEOPLE" INTO A GOVERNMENT OVER
THE PEOPLE. 

I CANNOT BELIEVE THAT THIS COURT WOULD ADHERE TO THE "BALANCING TEST"
TO THE LIMIT OF ITS LOGIC.  SINCE THAT "TEST" DENIES THAT ANY SPEECH,
PUBLICATION OR PETITION HAS AN "ABSOLUTE" RIGHT TO PROTECTION UNDER THE
FIRST AMENDMENT, STRICT ADHERENCE TO IT WOULD NECESSARILY MEAN THAT
THERE WOULD BE ONLY A CONDITIONAL RIGHT, NOT A COMPLETE RIGHT, FOR ANY
AMERICAN TO EXPRESS HIS VIEWS TO HIS NEIGHBORS - OR FOR HIS NEIGHBORS
TO HEAR THOSE VIEWS.  IN OTHER WORDS, NOT EVEN A CANDIDATE FOR PUBLIC
OFFICE, HIGH OR LOW, WOULD HAVE AN "ABSOLUTE" RIGHT TO SPEAK IN BEHALF
OF HIS CANDIDACY, NO NEWSPAPER WOULD HAVE AN "ABSOLUTE" RIGHT TO PRINT
ITS OPINION ON PUBLIC GOVERNMENTAL AFFAIRS, AND THE AMERICAN PEOPLE
WOULD HAVE NO "ABSOLUTE" RIGHT TO HEAR SUCH DISCUSSIONS.  ALL OF THESE
RIGHTS WOULD BE DEPENDENT UPON THE ACCURACY OF THE SCALES UPON WHICH
THIS COURT WEIGHS THE RESPECTIVE INTERESTS OF THE GOVERNMENT AND THE
PEOPLE.  IT THEREFORE SEEMS TO ME THAT THE COURT'S "ABSOLUTE" STATEMENT
THAT THERE ARE NO "ABSOLUTES" UNDER THE FIRST AMENDMENT MUST BE AN
EXAGGERATION OF ITS OWN VIEWS.    THESE EXAMPLES ALSO SERVE TO
ILLUSTRATE THE DIFFERENCE BETWEEN THE SORT OF "BALANCING" THAT THE
MAJORITY HAS BEEN DOING AND THE SORT OF "BALANCING" THAT WAS INTENDED
WHEN THAT CONCEPT WAS FIRST ACCEPTED AS A METHOD FOR INSURING THE
COMPLETE PROTECTION OF FIRST AMENDMENT FREEDOMS EVEN AGAINST PURELY
INCIDENTAL OR INADVERTENT CONSEQUENCES.  THE TERM CAME INTO USE CHIEFLY
AS A RESULT OF CASES IN WHICH THE POWER OF MUNICIPALITIES TO KEEP THEIR
STREETS OPEN FOR NORMAL TRAFFIC WAS ATTACKED BY GROUPS WISHING TO USE
THOSE STREETS FOR RELIGIOUS OR POLITICAL PURPOSES.  (FN27)  WHEN THOSE
CASES CAME BEFORE THIS COURT, WE DID NOT TREAT THE ISSUE POSED BY THEM
AS ONE PRIMARILY INVOLVING FIRST AMENDMENT RIGHTS.  RECOGNIZING INSTEAD
THAT PUBLIC STREETS ARE AVENUES OF TRAVEL WHICH MUST BE KEPT OPEN FOR
THAT PURPOSE, WE UPHELD VARIOUS CITY ORDINANCES DESIGNED TO PREVENT
UNNECESSARY NOISES AND CONGESTIONS THAT DISRUPT THE NORMAL AND
NECESSARY FLOW OF TRAFFIC.  IN DOING SO, HOWEVER, WE RECOGNIZED THAT
THE ENFORCEMENT OF EVEN THESE ORDINANCES, WHICH ATTEMPTED NO REGULATION
AT ALL OF THE CONTENT OF SPEECH AND WHICH WERE NEITHER OPENLY NOR
SURREPTITIOUSLY AIMED AT SPEECH, COULD BRING ABOUT AN "INCIDENTAL"
ABRIDGMENT OF SPEECH.  SO WE WENT ON TO POINT OUT THAT EVEN ORDINANCES
DIRECTED AT AND REGULATING ONLY CONDUCT MIGHT BE INVALIDATED IF, AFTER
"WEIGHING" THE REASONS FOR REGULATING THE PARTICULAR CONDUCT, WE FOUND
THEM INSUFFICIENT TO JUSTIFY DIMINISHING "THE EXERCISE OF RIGHTS SO
VITAL TO THE MAINTENANCE OF DEMOCRATIC INSTITUTIONS" AS THOSE OF THE
FIRST AMENDMENT.  (FN28) 

BUT THOSE CASES NEVER INTIMATED THAT WE WOULD UPHOLD AS
CONSTITUTIONAL AN ORDINANCE WHICH PURPORTED TO REST UPON THE POWER OF A
CITY TO REGULATE TRAFFIC BUT WHICH WAS AIMED AT SPEECH OR ATTEMPTED TO
REGULATE THE CONTENT OF SPEECH.  NONE OF THEM HELD, NOR COULD THEY
CONSTITUTIONALLY HAVE HELD, THAT A PERSON RIGHTFULLY WALKING OR RIDING
ALONG THE STREETS AND TALKING IN A NORMAL WAY COULD HAVE HIS VIEWS
CONTROLLED, LICENSED OR PENALIZED IN ANY WAY BY THE CITY - FOR THAT
WOULD BE A DIRECT ABRIDGMENT OF SPEECH ITSELF.  THOSE CASES HAVE ONLY
BEGUN TO TAKE ON THAT MEANING BY BEING RELIED UPON, AGAIN AND AGAIN AS
THEY ARE HERE, TO JUSTIFY THE APPLICATION OF THE "BALANCING TEST" TO
GOVERNMENTAL ACTION THAT IS AIMED AT SPEECH AND DEPENDS FOR ITS
APPLICATION UPON THE CONTENT OF SPEECH.  THUS, THOSE CASES HAVE BEEN
USED TO SUPPORT DECISIONS UPHOLDING SUCH OBVIOUSLY ANTISPEECH ACTIONS
ON THE PART OF GOVERNMENT AS THOSE INVOLVED IN AMERICAN COMMUNICATIONS
ASSN. V. DOUDS (FN29) AND DENNIS V. UNITED STATES.  (FN30)  AND THE USE
BEING MADE OF THOSE CASES HERE MUST BE CONSIDERED AS FALLING SQUARELY
WITHIN THAT CLASS.  (FN31) 

THE COURT SEEKS TO BRING THIS CASE UNDER THE AUTHORITY OF THE STREET
REGULATION CASES AND TO DEFEND ITS USE OF THE "BALANCING TEST" ON THE
GROUND THAT CALIFORNIA IS ATTEMPTING ONLY TO EXERCISE ITS PERMISSIBLE
POWER TO REGULATE ITS BAR AND THAT ANY EFFECT ITS ACTION MAY HAVE UPON
SPEECH IS PURELY "INCIDENTAL."  BUT I CANNOT AGREE THAT THE QUESTIONS
ASKED KONIGSBERG WITH REGARD TO HIS SUSPECTED MEMBERSHIP IN THE
COMMUNIST PARTY HAD NOTHING MORE THAN AN "INCIDENTAL" EFFECT UPON HIS
FREEDOM OF SPEECH AND ASSOCIATION.  WHY DOES THE COMMITTEE OF BAR
EXAMINERS ASK A BAR APPLICANT WHETHER HE IS OR HAS BEEN A MEMBER OF THE
COMMUNIST PARTY?  THE AVOWED PURPOSE OF SUCH QUESTIONING IS TO PERMIT
THE COMMITTEE TO DENY APPLICANTS ADMISSION TO THE BAR IF THEY
"ADVOCATE" FORCIBLE OVERTHROW OF THE GOVERNMENT.  INDEED, THAT IS
PRECISELY THE GROUND UPON WHICH THE MAJORITY IS HERE UPHOLDING THE
COMMITTEE'S RIGHT TO ASK KONIGSBERG THESE QUESTIONS.  I REALIZE THAT
THERE HAS BEEN CONSIDERABLE TALK, EVEN IN THE OPINIONS OF THIS COURT,
TO THE EFFECT THAT "ADVOCACY" IS NOT "SPEECH."  BUT WITH THE HIGHEST
RESPECT FOR THOSE WHO BELIEVE THAT THERE IS SUCH A DISTINCTION, I
CANNOT AGREE WITH IT.  FOR THIS REASON, I THINK THE CONCLUSION IS
INESCAPABLE THAT THIS CASE PRESENTS THE QUESTION OF THE
CONSTITUTIONALITY OF ACTION BY THE STATE OF CALIFORNIA DESIGNED TO
CONTROL THE CONTENT OF SPEECH.  AS SUCH, IT IS A "DIRECT," AND NOT AN
"INCIDENTAL" ABRIDGMENT OF SPEECH.  INDEED, IF THE CHARACTERIZATION
"INCIDENTAL" WERE APPROPRIATE HERE, IT WOULD BE DIFFICULT TO IMAGINE
WHAT WOULD CONSTITUTE A "DIRECT" ABRIDGMENT OF SPEECH.  THE USE OF THE
"BALANCING TEST" UNDER THESE CIRCUMSTANCES THUS PERMITS CALIFORNIA
DIRECTLY TO ABRIDGE SPEECH IN EXPLICIT CONTRADICTION TO THE PLAIN
MANDATE OF THE FIRST AMENDMENT. 

BUT EVEN IF I THOUGHT THE MAJORITY WAS CORRECT IN ITS VIEW THAT
"BALANCING" IS PROPER IN THIS CASE, I WOULD NOT AGREE WITH ITS
DECISION.  IN THE FIRST PLACE, I THINK THAT THE DECISION HERE IS UNDULY
RESTRICTIVE UPON INDIVIDUAL LIBERTY EVEN UNDER THE PENURIOUS "BALANCING
TEST."  THE MAJORITY DESCRIBES THE STATE'S INTEREST WHICH IS HERE TO BE
"BALANCED" AGAINST THE INTEREST IN PROTECTING THE FREEDOMS OF SPEECH
AND ASSOCIATION AS AN INTEREST IN "HAVING LAWYERS WHO ARE DEVOTED TO
THE LAW IN ITS BROADEST SENSE, INCLUDING NOT ONLY ITS SUBSTANTIVE
PROVISIONS, BUT ALSO ITS PROCEDURES FOR ORDERLY CHANGE."  BUT IS THAT
AN ACCURATE STATEMENT OF THE INTEREST OF THE STATE THAT IS REALLY AT
STAKE HERE?  KONIGSBERG HAS STATED UNEQUIVOCALLY THAT HE NEVER HAS,
DOES NOT NOW, AND NEVER WILL ADVOCATE THE OVERTHROW OF THE GOVERNMENT
OF THIS COUNTRY BY UNCONSTITUTIONAL MEANS, AND WE HELD WHEN THE CASE
WAS HERE BEFORE THAT HIS EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT
FACT.  SINCE THE COMMITTEE HAS INTRODUCED NO EVIDENCE AT ANY SUBSEQUENT
HEARING THAT WOULD LEAD TO A CONTRARY CONCLUSION, THE FACT REMAINS
ESTABLISHED.  (FN32)  SO THE ISSUE IN THIS CASE IS NOT, AS THE
MAJORITY'S STATEMENT OF THE STATE'S INTEREST WOULD SEEM TO INDICATE,
WHETHER A PERSON WHO ADVOCATES THE OVERTHROW OF EXISTING GOVERNMENT BY
FORCE MUST BE ADMITTED TO THE PRACTICE OF LAW.  ALL WE REALLY HAVE ON
THE STATE'S SIDE OF THE SCALES IS ITS DESIRE TO KNOW WHETHER KONIGSBERG
WAS EVER A MEMBER OF THE COMMUNIST PARTY. 

THE REAL LACK OF VALUE OF THAT INFORMATION TO THE STATE IS, TO MY
MIND, CLEARLY SHOWN BY THE FACT THAT THE STATE HAS NOT EVEN ATTEMPTED
TO MAKE MEMBERSHIP IN THE COMMUNIST PARTY A GROUND FOR DISQUALIFICATION
FROM THE BAR.  INDEED, IF THE STATE'S ONLY REAL INTEREST WAS, AS THE
MAJORITY MAINTAINS, IN HAVING GOOD MEN FOR ITS BAR, HOW COULD IT HAVE
REJECTED KONIGSBERG, WHO, UNDENIABLY AND AS THIS COURT HAS ALREADY
HELD, HAS PROVIDED OVERWHELMING EVIDENCE OF HIS GOOD CHARACTER?  OUR
FORMER DECISION, WHICH I STILL REGARD AS RESTING ON WHAT IS BASICALLY
JUST GOOD COMMON SENSE, WAS THAT A MAN DOES NOT HAVE TO TELL ALL ABOUT
HIS PREVIOUS BELIEFS AND ASSOCIATIONS IN ORDER TO ESTABLISH HIS GOOD
CHARACTER AND LOYALTY. 

WHEN THE MAJORITY TURNS TO THE INTEREST ON THE OTHER SIDE OF THE
SCALE, IT ADMITS THAT ITS DECISION IS LIKELY TO HAVE ADVERSE EFFECTS
UPON FREE ASSOCIATION CAUSED BY COMPULSORY DISCLOSURES, BUT THEN GOES
ON TO SAY THAT THOSE ADVERSE EFFECTS WILL BE "MINIMAL" HERE, FIRST,
BECAUSE BAR ADMISSION INTERROGATIONS ARE PRIVATE AND, SECONDLY, BECAUSE
THE DECISIONS OF BAR ADMISSION COMMITTEES ARE SUBJECT TO JUDICIAL
REVIEW.  AS TO THE FIRST GROUND, THE COURT SIMPLY IGNORES THE FACT THAT
CALIFORNIA LAW DOES NOT REQUIRE ITS COMMITTEE TO TREAT INFORMATION
GIVEN IT AS CONFIDENTIAL.  (FN33)  AND BESIDES, IT TAXES CREDULITY TO
SUPPOSE THAT QUESTIONS ASKED AN APPLICANT AND ANSWERS GIVEN BY HIM IN
THE HIGHLY EMOTIONAL AREA OF COMMUNISM WOULD NOT RAPIDLY LEAK OUT TO
THE GREAT INJURY OF AN APPLICANT - REGARDLESS OF WHAT THE FACTS OF HIS
PARTICULAR CASE MAY HAPPEN TO BE.  AS TO THE SECOND GROUND GIVEN, THE
COURT FAILS TO TAKE INTO ACCOUNT THE FACT THAT JUDICIAL REVIEW WIDENS
THE PUBLICITY OF THE QUESTIONS AND ANSWERS AND THUS TENDS FURTHER TO
UNDERCUT ITS FIRST GROUND.  AT THE SAME TIME, SUCH REVIEW, AS IS
DEMONSTRATED BY THIS AND THE COMPANION CASE DECIDED TODAY, (FN34)
PROVIDES SMALL HOPE THAT AN APPLICANT WILL BE AFFORDED RELIEF AGAINST
STUBBORN EFFORTS TO DESTROY HIM ARBITRARILY BY INNUENDOES THAT WILL
SUBJECT HIM TO LASTING SUSPICIONS.  BUT EVEN IF I THOUGHT THE COURT WAS
CORRECT IN ITS BELIEFS THAT THE INTERROGATION OF A BAR APPLICANT WOULD
BE KEPT CONFIDENTIAL AND THAT JUDICIAL REVIEW IS ADEQUATE TO PREVENT
ARBITRARY EXCLUSIONS FROM THE BAR, I COULD NOT ACCEPT ITS CONCLUSION
THAT THE FIRST AMENDMENT RIGHTS INVOLVED IN THIS CASE ARE "MINIMAL." 

THE INTEREST IN FREE ASSOCIATION AT STAKE HERE IS NOT MERELY THE
PERSONAL INTEREST OF PETITIONER IN BEING FREE FROM BURDENS THAT MAY BE
IMPOSED UPON HIM FOR HIS PAST BELIEFS AND ASSOCIATIONS.  IT IS THE
INTEREST OF ALL THE PEOPLE IN HAVING A SOCIETY IN WHICH NO ONE IS
INTIMIDATED WITH RESPECT TO HIS BELIEFS OR ASSOCIATIONS.  IT SEEMS
PLAIN TO ME THAT THE INEVITABLE EFFECT OF THE MAJORITY'S DECISION IS TO
CONDONE A PRACTICE THAT WILL HAVE A SUBSTANTIAL DETERRENT EFFECT UPON
THE ASSOCIATIONS ENTERED INTO BY ANYONE WHO MAY WANT TO BECOME A LAWYER
IN CALIFORNIA.  IF EVERY PERSON WHO WANTS TO BE A LAWYER IS TO BE
REQUIRED TO ACCOUNT FOR HIS ASSOCIATIONS AS A PREREQUISITE TO ADMISSION
INTO THE PRACTICE OF LAW, THE ONLY SAFE COURSE FOR THOSE DESIRING
ADMISSION WOULD SEEM TO BE SCRUPULOUSLY TO AVOID ASSOCIATION WITH ANY
ORGANIZATION THAT ADVOCATES ANYTHING AT ALL SOMEBODY MIGHT POSSIBLY BE
AGAINST, INCLUDING GROUPS WHOSE ACTIVITIES ARE CONSTITUTIONALLY
PROTECTED UNDER EVEN THE MOST RESTRICTED NOTION OF THE FIRST
AMENDMENT.  (FN35)  AND, IN THE CURRENTLY PREVAILING ATMOSPHERE IN THIS
COUNTRY, I CAN THINK OF FEW ORGANIZATIONS ACTIVE IN FAVOR OF CIVIL
LIBERTIES THAT ARE NOT HIGHLY CONTROVERSIAL.  (FN36)  IN ADDITION, IT
SEEMS EQUALLY CLEAR THAT ANYONE WHO HAD ALREADY ASSOCIATED HIMSELF WITH
AN ORGANIZATION ACTIVE IN FAVOR OF CIVIL LIBERTIES BEFORE HE DEVELOPED
AN INTEREST IN THE LAW, WOULD, AFTER THIS CASE, BE DISCOURAGED FROM
SPENDING THE LARGE AMOUNTS OF TIME AND MONEY NECESSARY TO OBTAIN A
LEGAL EDUCATION IN THE HOPE THAT HE COULD PRACTICE LAW IN CALIFORNIA. 

THUS, IN MY VIEW, THE MAJORITY HAS REACHED ITS DECISION HERE AGAINST
THE FREEDOMS OF THE FIRST AMENDMENT BY A FUNDAMENTAL MISAPPLICATION OF
ITS OWN CURRENTLY, BUT I HOPE ONLY TEMPORARILY, PREVAILING "BALANCING"
TEST.  THE INTEREST OF THE COMMITTEE IN SATISFYING ITS CURIOSITY WITH
RESPECT TO KONIGSBERG'S "POSSIBLE" MEMBERSHIP IN THE COMMUNIST PARTY
TWO DECADES AGO HAS BEEN INFLATED OUT OF ALL PROPORTION TO ITS REAL
VALUE - THE VAST INTEREST OF THE PUBLIC IN MAINTAINING UNABRIDGED THE
BASIC FREEDOMS OF SPEECH, PRESS AND ASSEMBLY HAS BEEN PAID LITTLE IF
ANYTHING MORE THAN LIP SERVICE - AND IMPORTANT CONSTITUTIONAL RIGHTS
HAVE ONCE AGAIN BEEN "BALANCED" AWAY.  THIS, OF COURSE, IS AN EVER
PRESENT DANGER OF THE "BALANCING TEST" FOR THE APPLICATION OF SUCH A
TEST IS NECESSARILY TIED TO THE EMPHASIS PARTICULAR JUDGES GIVE TO
COMPETING SOCIETAL VALUES.  JUDGES, LIKE EVERYONE ELSE, VARY
TREMENDOUSLY IN THEIR CHOICE OF VALUES.  THIS IS PERFECTLY NATURAL AND,
INDEED, UNAVOIDABLE.  BUT IT IS NEITHER NATURAL NOR UNAVOIDABLE IN THIS
COUNTRY FOR THE FUNDAMENTAL RIGHTS OF THE PEOPLE TO BE DEPENDENT UPON
THE DIFFERENT EMPHASIS DIFFERENT JUDGES PUT UPON DIFFERENT VALUES AT
DIFFERENT TIMES.  FOR THOSE RIGHTS, PARTICULARLY THE FIRST AMENDMENT
RIGHTS INVOLVED HERE, WERE UNEQUIVOCALLY SET OUT BY THE FOUNDERS IN OUR
BILL OF RIGHTS IN THE VERY PLAINEST OF LANGUAGE, AND THEY SHOULD NOT BE
DILUTED BY "TESTS" THAT OBLITERATE THEM WHENEVER PARTICULAR JUDGES
THINK VALUES THEY MOST HIGHLY CHERISH OUTWEIGH THE VALUES MOST HIGHLY
CHERISHED BY THE FOUNDERS. 

MOREOVER, IT SEEMS TO ME THAT THE "BALANCING TEST" IS HERE BEING
APPLIED TO CUT THE HEART OUT OF ONE OF THE VERY FEW LIBERTY-PROTECTING
DECISIONS THAT THIS COURT HAS RENDERED IN THE LAST DECADE.  SPEISER V.
RANDALL (FN37) STRUCK DOWN, AS A VIOLATION OF THE FEDERAL CONSTITUTION,
A STATE LAW WHICH DENIED TAX EXEMPTIONS TO VETERANS WHO REFUSED TO SIGN
AN OATH THAT THEY DID NOT ADVOCATE "THE OVERTHROW OF THE GOVERNMENT OF
THE UNITED STATES OR OF THE STATE OF CALIFORNIA BY FORCE OR VIOLENCE OR
OTHER UNLAWFUL MEANS  ...  ."  (FN38)  THE CASE AROSE WHEN CERTAIN
VETERANS INSISTED UPON THEIR RIGHT TO THE EXEMPTIONS WITHOUT SIGNING
THE OATH.  THE CALIFORNIA SUPREME COURT REJECTED THE VETERANS'
CONSTITUTIONAL CONTENTION THAT THE STATE LAW VIOLATED DUE PROCESS BY
PLACING THE BURDEN OF PROOF UPON THE TAXPAYER TO PROVE THAT HE DID NOT
ADVOCATE VIOLENT OVERTHROW OF THE GOVERNMENT.  THIS COURT REVERSED,
WITH ONLY ONE JUSTICE DISSENTING, ON THE GROUND THAT THE NECESSARY
EFFECT OF SUCH AN IMPOSITION OF THE BURDEN OF PROOF "CAN ONLY RESULT IN
A DETERRENCE OF SPEECH WHICH THE CONSTITUTION MAKES FREE."  (FN39)
INDEED, THE MAJORITY OPINION IN THE SPEISER CASE DISTINGUISHED THE VERY
CASES UPON WHICH THE MAJORITY HERE IS RELYING ON THE GROUND THAT "THE
OATHS REQUIRED IN THOSE CASES PERFORMED A VERY DIFFERENT FUNCTION FROM
THE DECLARATION IN ISSUE HERE.  IN THE EARLIER CASES IT APPEARS THAT
THE LOYALTY OATH, ONCE SIGNED, BECAME CONCLUSIVE EVIDENCE OF THE FACTS
ATTESTED SO FAR AS THE RIGHT TO OFFICE WAS CONCERNED.  IF THE PERSON
TOOK THE OATH HE RETAINED HIS POSITION.  THE OATH WAS NOT PART OF A
DEVICE TO SHIFT TO THE OFFICEHOLDER THE BURDEN OF PROVING HIS RIGHT TO
RETAIN HIS POSITION."  (FN40)  BUT THAT IS PRECISELY WHAT IS HAPPENING
HERE.  FOR, EVEN THOUGH KONIGSBERG HAS TAKEN AN OATH THAT HE DOES NOT
ADVOCATE THE VIOLENT OVERTHROW OF THE GOVERNMENT, THE COMMITTEE HAS
PERSISTED IN THE VIEW THAT HE HAS NOT AS YET DEMONSTRATED HIS RIGHT TO
ADMISSION TO THE BAR.  IF THAT DOES NOT AMOUNT TO THE SORT OF SHIFTING
OF THE BURDEN OF PROOF THAT IS PROSCRIBED BY SPEISER, I DO NOT KNOW
WHAT WOULD. 

THE SITUATION IN THE PRESENT CASE IS SOLEY ANALOGOUS TO THAT
CONDEMNED IN THE SPEISER CASE AND, INDEED, THE MAJOR FACTUAL DIFFERENCE
BETWEEN THE TWO CASES TENDS TO MAKE THIS CASE AN EVEN STRONGER ONE. 
HERE, AS IN SPEISER, THE STATE REQUIRES AN OATH THAT THE PERSON
INVOLVED DOES NOT ADVOCATE VIOLENT OVERTHROW OF THE GOVERNMENT.  HERE,
AS THERE, THE TAKING OF THE OATH IS NOT CONCLUSIVE OF THE RIGHTS OF THE
PERSON INVOLVED.  AND HERE, AS THERE, CONTRARY TO THE IMPLICATIONS IN
THE MAJORITY OPINION, I THINK IT CLEAR THAT THE STATE PLACES UPON EACH
APPLICANT FOR ADMISSION TO THE BAR THE BURDEN OF PROVING THAT HE DOES
NOT ADVOCATE THE VIOLENT OVERTHROW OF THE GOVERNMENT.  THERE IS ONE
DIFFERENCE BETWEEN THE TWO CASES, FOR HERE KONIGSBERG AGREED TO TAKE
THE OATH REQUIRED AND HE REFUSED TO ANSWER ONLY WHEN THE STATE INSISTED
UPON MORE.  SURELY HE CANNOT BE PENALIZED FOR HIS GREATER WILLINGNESS
TO COOPERATE WITH THE STATE.    THE MAJORITY ALSO SUGGESTS THAT THE
SPEISER CASE MAY BE DISTINGUISHABLE BECAUSE IT INVOLVED MERELY THE
POWER OF THE STATE TO IMPOSE A PENALTY, BY WAY OF A HEAVIER TAX BURDEN,
UPON A PERSON WHO REFUSED TO TAKE AN OATH, WHILE THIS CASE INVOLVES THE
POWER OF THE STATE TO DETERMINE THE QUALIFICATIONS A PERSON MUST HAVE
TO BE ADMITTED TO THE BAR - A POSITION OF IMPORTANCE TO THE PUBLIC. 
THIS DISTINCTION SEEMS TO ME TO BE A LITTLE MORE THAN A PLAY ON WORDS. 
SPEISER HAD THE BURDEN OF PROVING THAT HE DID NOT ADVOCATE THE
OVERTHROW OF THE GOVERNMENT AND, UPON HIS REFUSAL TO SATISFY THIS
BURDEN, HE WAS FORCED TO PAY ADDITIONAL TAXES AS A PENALTY.  KONIGSBERG
HAS THE BURDEN OF PROVING THAT HE DOES NOT ADVOCATE THE VIOLENT
OVERTHROW OF THE GOVERNMENT AND, UPON HIS SUPPOSED FAILURE TO MEET THIS
BURDEN, HE IS BEING DENIED AN OPPORTUNITY TO PRACTICE THE PROFESSION
FOR WHICH HE HAS EXPENDED MUCH TIME AND MONEY TO PREPARE HIMSELF.  SO
FAR AS I AM CONCERNED THE CONSEQUENCES TO KONIGSBERG, WHETHER
CONSIDERED FROM A FINANCIAL STANDPOINT, A SOCIAL STANDPOINT, OR ANY
OTHER STANDPOINT I CAN THINK OF, CONSTITUTE A MORE SERIOUS "PENALTY"
THAN THAT IMPOSED UPON SPEISER. 

IN MY JUDGMENT THIS CASE MUST TAKE ITS PLACE IN THE EVER-LENGTHENING
LINE OF CASES IN WHICH INDIVIDUAL LIBERTY TO THINK, SPEAK, WRITE,
ASSOCIATE AND PETITION IS BEING ABRIDGED IN A MANNER PRECISELY CONTRARY
TO THE EXPLICIT COMMANDS OF THE FIRST AMENDMENT.  (FN41)  AND I BELIEVE
THE ABRIDGMENT OF LIBERTY HERE, AS IN MOST OF THE OTHER CASES IN THAT
LINE, IS BASED UPON NOTHING MORE THAN A FEAR THAT THE AMERICAN PEOPLE
CAN BE ALIENATED FROM THEIR ALLEGIANCE TO OUR FORM OF GOVERNMENT BY THE
TALK OF ZEALOTS FOR A FORM OF GOVERNMENT THAT IS HOSTILE TO EVERYTHING
FOR WHICH THIS COUNTRY NOW STANDS OR EVER HAS STOOD.  I THINK THIS FEAR
IS GROUNDLESS FOR I BELIEVE THAT THE LOYALTY AND PATRIOTISM OF THE
AMERICAN PEOPLE TOWARD OUR OWN FREE WAY OF LIFE ARE TOO DEEPLY ROOTED
TO BE SHAKEN BY MERE TALK OR ARGUMENT FROM PEOPLE WHO ARE WEDDED TO
TOTALITARIAN FORMS OF GOVERNMENT.  IT WAS THIS KIND OF FAITH IN THE
AMERICAN PEOPLE THAT BROUGHT ABOUT THE ADOPTION OF THE FIRST AMENDMENT,
WHICH WAS EXPRESSLY DESIGNED TO LET PEOPLE SAY WHAT THEY WANTED TO
ABOUT GOVERNMENT - EVEN AGAINST GOVERNMENT IF THEY WERE SO INCLINED. 
THE IDEA UNDERLYING THIS THEN REVOLUTIONARY IDEA OF FREEDOM WAS THAT
THE CONSTITUTION HAD SET UP A GOVERNMENT SO FAVORABLE TO INDIVIDUAL
LIBERTY THAT ARGUMENTS AGAINST THAT GOVERNMENT WOULD FALL HARMLESS AT
THE FEET OF A SATISFIED AND HAPPY CITIZENSHIP.  THOMAS JEFFERSON VOICED
THIS IDEA WITH SIMPLE ELOQUENCE ON THE OCCASION OF HIS FIRST
INAUGURATION AS PRESIDENT OF THE UNITED STATES:  "IF THERE BE ANY AMONG
US WHO WOULD WISH TO DISSOLVE THIS UNION OR TO CHANGE ITS REPUBLICAN
FORM, LET THEM STAND UNDISTURBED AS MONUMENTS OF THE SAFETY WITH WHICH
ERROR OF OPINION MAY BE TOLERATED WHERE REASON IS LEFT FREE TO COMBAT
IT."  (FN42)

IN THE MAIN, THIS IS THE PHILOSOPHY UNDER WHICH THIS COUNTRY HAS
LIVED AND PROSPERED SINCE ITS CREATION.  THERE HAVE, HOWEVER, BEEN TWO
NOTABLE EXCEPTIONS, THE FIRST BEING THE PERIOD OF THE SHORT-LIVED AND
UNLAMENTED ALIEN AND SEDITION LAWS OF THE LATE 1700'S, AND THE OTHER
BEING THE PERIOD SINCE THE BEGINNING OF THE "COLD WAR" SHORTLY AFTER
THE CLOSE OF WORLD WAR II, IN WHICH THERE HAS BEEN A WIDESPREAD FEAR OF
AN IMAGINED OVERWHELMING PERSUASIVENESS IN COMMUNIST ARGUMENTS.  THE
MOST COMMONLY OFFERED JUSTIFICATION FOR THE LIBERTY-STIFLING MEASURES
THAT HAVE CHARACTERIZED THIS LATTER PERIOD IS THAT THE COMMUNISTS DO
NOT THEMSELVES BELIEVE IN THE FREEDOMS OF SPEECH, PRESS AND ASSEMBLY SO
THEY SHOULD NOT BE ALLOWED TO TAKE ADVANTAGE OF THE FREEDOMS OUR
CONSTITUTION PROVIDES.  BUT, AS ILLUSTRATED BY THIS AND MANY OTHER
CASES, THE EFFECT OF REPRESSIVE LAWS AND INQUISITIONS OF THIS KIND
CANNOT BE AND IS NOT LIMITED TO COMMUNISTS.  (FN43)  MOREOVER, THE FACT
THAT COMMUNISTS PRACTICE REPRESSION OF THESE FREEDOMS IS, IN MY
JUDGMENT, THE LAST REASON IN THE WORLD THAT WE SHOULD DO SO.  WE DO NOT
HAVE TO IMITATE THE COMMUNISTS IN ORDER TO SURVIVE.  OUR BILL OF RIGHTS
PLACED OUR SURVIVAL UPON A FIRMER GROUND - THAT OF FREEDOM, NOT
REPRESSION. 

NOTHING IN THIS RECORD SHOWS THAT KONIGSBERG HAS EVER BEEN GUILTY OF
ANY CONDUCT THAT THREATENS OUR SAFETY.  QUITE THE CONTRARY, THE RECORD
INDICATES THAT WE ARE FORTUNATE TO HAVE MEN LIKE HIM IN THIS COUNTRY
FOR IT SHOWS THAT KONIGSBERG IS A MAN OF FIRM CONVICTIONS WHO HAS STOOD
UP AND SUPPORTED THIS COUNTRY'S FREEDOM IN PEACE AND IN WAR.  THE
WRITINGS THAT THE RECORD SHOWS HE HAS PUBLISHED CONSTITUTE VEHEMENT
PROTESTS AGAINST THE IDEA OF OVERTHROWING THIS GOVERNMENT BY FORCE.  NO
WITNESS COULD BE FOUND THROUGHOUT THE LONG YEARS OF THIS INQUISITION
WHO COULD SAY, OR EVEN WHO WOULD SAY, THAT KONIGSBERG HAS EVER RAISED
HIS VOICE OR HIS HAND AGAINST HIS COUNTRY.  HE IS, THEREFORE, BUT
ANOTHER VICTIM OF THE PREVAILING FASHION OF DESTROYING MEN FOR THE
VIEWS IT IS SUSPECTED THEY MIGHT ENTERTAIN. 

FN1  KONIGSBERG V. STATE BAR OF CALIFORNIA, 353 U.S. 252, 273.  THAT
DECISION WAS REACHED ON THE BASIS OF A RECORD CONTAINING A LARGE
QUANTITY OF EVIDENCE FAVORABLE TO KONIGSBERG AND SOME SCANTY EVIDENCE
ARGUABLY ADVERSE TO HIM. 

FN2  KONIGSBERG V. STATE BAR OF CALIFORNIA, 52 CAL. 2D 769, 344 P.2D
777.  MR. JUSTICE TRAYNOR AND MR. JUSTICE PETERS DISSENTED IN SEPARATE
OPINIONS. 

FN3  353 U.S., AT 260-261. 

FN4  THE TOTAL ABSENCE OF ANY AUTHORITATIVE SOURCE FOR THIS RULE IS,
IN MY JUDGMENT, MERELY ACCENTUATED BY THE REFERENCE IN THE MAJORITY
OPINION TO THE ARTICLE WRITTEN FOR THE CALIFORNIA STATE BAR JOURNAL BY
THE SECRETARY OF THE COMMITTEE OF BAR EXAMINERS.  SO FAR AS THE CASES
RELIED UPON IN THAT ARTICLE ARE EVEN AVAILABLE FOR STUDY, THEY DO NOT
IN ANY WAY SUPPORT THE ACTION OF THE BAR COMMITTEE HERE. 

FN5  THUS, IT SEEMS TO ME THAT CALIFORNIA'S REJECTION OF KONIGSBERG
IS NOT SUPPORTED BY ANY "LAW OF THE LAND," AS REQUIRED BY THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.  SEE
COHEN V. HURLEY, DECIDED TODAY, POST, P. 117, AT 135-150 (DISSENTING
OPINION).  AS DANIEL WEBSTER ARGUED IN THE DARTMOUTH COLLEGE CASE:
"ARE THEN THESE ACTS OF THE LEGISLATURE, WHICH AFFECT ONLY PARTICULAR
PERSONS AND THEIR PARTICULAR PRIVILEGES, LAWS OF THE LAND?  LET THIS
QUESTION BE ANSWERED BY THE TEXT OF BLACKSTONE:  'AND FIRST, IT (I.E.
LAW) IS A RULE:  NOT A TRANSIENT SUDDEN ORDER FROM A SUPERIOR, TO, OR
CONCERNING, A PARTICULAR PERSON; BUT SOMETHING PERMANENT, UNIFORM, AND
UNIVERSAL.  THEREFORE, A PARTICULAR ACT OF THE LEGISLATURE TO
CONFISCATE THE GOODS OF TITIUS, OR TO ATTAINT HIM OF HIGH TREASON, DOES
NOT ENTER INTO THE IDEA OF A MUNICIPAL LAW:  FOR THE OPERATION OF THIS
ACT IS SPENT UPON TITIUS ONLY, AND HAS NO RELATION TO THE COMMUNITY IN
GENERAL; IT IS RATHER A SENTENCE THAN A LAW.'  LORD COKE IS EQUALLY
DECISIVE AND EMPHATIC.  CITING AND COMMENTING ON THE CELEBRATED 29TH
CHAP. OF MAGNA CHARTA, HE SAYS, 'NO MAN SHALL BE DISSEIZED, &C. UNLESS
IT BE BY THE LAWFUL JUDGMENT, THAT IS, VERDICT OF EQUALS, OR BY THE LAW
OF THE LAND, THAT IS, (TO SPEAK IT ONCE FOR ALL,) BY THE DUE COURSE AND
PROCESS OF LAW.'"  DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518, 580
581. 

FN6  4 WALL.  277. 

FN7  4 WALL.  333. 

FN8  THE SUSPICIONS OF THE COMMITTEE DOUBTLESS RELATE TO THE PERIOD
AROUND 1941 FOR THE COMMITTEE HAD HEARD TESTIMONY FROM AN EX-COMMUNIST
THAT KONIGSBERG HAD ATTENDED MEETINGS OF A COMMUNIST PARTY UNIT DURING
THAT PERIOD.  THE UNRELIABILITY OF THAT TESTIMONY WAS DISCUSSED IN THE
COURT'S OPINION WHEN THE CASE WAS HERE BEFORE.  SEE 353 U.S., AT 266
268. 

FN9  UNDER THE CIRCUMSTANCES OF THIS CASE, IT SEEMS CLEAR TO ME THAT
THE ACTION OF THE STATE OF CALIFORNIA IN REJECTING KONIGSBERG IS ALSO
CONTRARY TO OUR DECISION IN SCHWARE V. BOARD OF BAR EXAMINERS OF NEW
MEXICO, 353 U.S. 232.  IN THAT CASE, EVERY MEMBER OF THIS COURT WHO
PARTICIPATED IN THE DECISION EXPRESSED SERIOUS DOUBTS WITH REGARD TO
THE PROBATIVE VALUE OF EVIDENCE AS TO A BAR APPLICANT'S MEMBERSHIP IN
THE COMMUNIST PARTY 15 YEARS PREVIOUS TO OUR CONSIDERATION OF THE
CASE.  ID., AT 246 (CONCURRING OPINION) 251.  I CANNOT BELIEVE THAT
SUCH EVIDENCE BECOMES MORE PROBATIVE WHEN, AS HERE, IT WOULD, IF
OBTAINED, HAVE BEEN FIVE YEARS OLDER. 

FN10  SEE, E.G., MY DISSENTING OPINIONS IN BRADEN V. UNITED STATES,
365 U.S. 431, 441-446; WILKINSON V. UNITED STATES, 365 U.S. 399, 422
423; UPHAUS V. WYMAN, 364 U.S. 388, 392-393; BARENBLATT V. UNITED
STATES, 360 U.S. 109, 140-144; AMERICAN COMMUNICATIONS ASSN. V. DOUDS,
339 U.S. 382, 445-453. 

FN11  JAMES MADISON, FOR EXAMPLE, INDICATED CLEARLY THAT HE DID NOT
UNDERSTAND THE BILL OF RIGHTS TO PERMIT ANY ENCROACHMENTS UPON THE
FREEDOMS IT WAS DESIGNED TO PROTECT.  "IF THEY (THE FIRST TEN
AMENDMENTS) ARE INCORPORATED INTO THE CONSTITUTION, INDEPENDENT
TRIBUNALS OF JUSTICE WILL CONSIDER THEMSELVES IN A PECULIAR MANNER THE
GUARDIANS OF THOSE RIGHTS; THEY WILL BE AN IMPENETRABLE BULWARK AGAINST
EVERY ASSUMPTION OF POWER IN THE LEGISLATIVE OR EXECUTIVE; THEY WILL BE
NATURALLY LED TO RESIST EVERY ENCROACHMENT UPON RIGHTS EXPRESSLY
STIPULATED FOR IN THE CONSTITUTION BY THE DECLARATION OF RIGHTS."  1
ANNALS OF CONGRESS 439 (1789). 

FN12  SEE, E.G., MINERSVILLE DISTRICT V. GOBITIS, 310 U.S. 586, 593;
MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 108; BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624, 639; STAUB V. CITY OF BAXLEY, 355 U.S. 313,
321. 

FN13  SEE SCHENCK V. UNITED STATES, 249 U.S. 47, 52, WHERE MR.
JUSTICE HOLMES, WRITING FOR THE COURT, SAID:  "THE QUESTION IN EVERY
CASE IS WHETHER THE WORDS USED ARE USED IN SUCH CIRCUMSTANCES AND ARE
OF SUCH A NATURE AS TO CREATE A CLEAR AND PRESENT DANGER THAT THEY WILL
BRING ABOUT THE SUBSTANTIVE EVILS THAT CONGRESS HAS A RIGHT TO
PREVENT." 

FN14  ABRAMS V. UNITED STATES, 250 U.S. 616, 630 (HOLMES, J.,
DISSENTING).  SEE ALSO GITLOW V. NEW YORK, 268 U.S. 652, 673:  "IF IN
THE LONG RUN THE BELIEFS EXPRESSED IN PROLETARIAN DICTATORSHIP ARE
DESTINED TO BE ACCEPTED BY THE DOMINANT FORCES OF THE COMMUNITY, THE
ONLY MEANING OF FREE SPEECH IS THAT THEY SHOULD BE GIVEN THEIR CHANCE
AND HAVE THEIR WAY."  (HOLMES, J., DISSENTING.)  AND SEE WHITNEY V.
CALIFORNIA, 274 U.S. 357, 378:  "AMONG FREE MEN, THE DETERRENTS
ORDINARILY TO BE APPLIED TO PREVENT CRIME ARE EDUCATION AND PUNISHMENT
FOR VIOLATIONS OF THE LAW, NOT ABRIDGMENT OF THE RIGHTS OF FREE SPEECH
AND ASSEMBLY."  (BRANDEIS, J., CONCURRING.) 

FN15  SEE ABRAMS V. UNITED STATES, 250 U.S. 616, 630-631 (DISSENTING
OPINION); GITLOW V. NEW YORK, 268 U.S. 652, 672-673 (DISSENTING
OPINION); WHITNEY V. CALIFORNIA, 274 U.S. 357, 378-379 (CONCURRING
OPINION). 

FN16  SEE BRIDGES V. CALIFORNIA, 314 U.S. 252, 260-263. 

FN17  183 F.2D 201, 212, 341 U.S. 494, 510. 

FN18  ROTH V. UNITED STATES, 354 U.S. 476, 514 (DISSENTING OPINION). 
SEE ALSO LABOR BOARD V. VIRGINIA ELECTRIC & POWER CO., 314 U.S. 469;
GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490. 

FN19  SEE, E.G., MEIKLEJOHN, WHAT DOES THE FIRST AMENDMENT MEAN?  20
U. OF CHI.  L. REV.  461, 464. 

FN20  CF. BOYD V. UNITED STATES, 116 U.S. 616, 635:  "CONSTITUTIONAL
PROVISIONS FOR THE SECURITY OF PERSON AND PROPERTY SHOULD BE LIBERALLY
CONSTRUED.  A CLOSE AND LITERAL CONSTRUCTION DEPRIVES THEM OF HALF
THEIR EFFICACY, AND LEADS TO GRADUAL DEPRECIATION OF THE RIGHT, AS IF
IT CONSISTED MORE IN SOUND THAN IN SUBSTANCE.  IT IS THE DUTY OF COURTS
TO BE WATCHFUL FOR THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND
AGAINST ANY STEALTHY ENCROACHMENTS THEREON." 

FN21  343 U.S. 250. 

FN22  THE COURT OPINION HERE APPARENTLY TREATS THE BEAUHARNAIS CASE
AS HAVING DECIDED THAT THE FEDERAL GOVERNMENT HAS POWER, DESPITE THE
FIRST AMENDMENT, TO PASS SO-CALLED "GROUP LIBEL" LAWS.  THIS, I THINK,
IS WHOLLY UNJUSTIFIED.  THE BEAUHARNAIS OPINION WAS WRITTEN ON THE
ASSUMPTION THAT THE PROTECTION AFFORDED THE FREEDOMS OF SPEECH AND
PETITION AGAINST STATE ACTION BY THE FOURTEENTH AMENDMENT AMOUNTED TO
SOMETHING LESS THAN THE PROTECTION AFFORDED THESE FREEDOMS AGAINST
CONGRESSIONAL ACTION BY THE FIRST AMENDMENT.  THUS, AS POINTED OUT IN
MY DISSENT IN THAT CASE, THE MAJORITY IN BEAUHARNAIS NEVER EVEN
MENTIONED THE FIRST AMENDMENT BUT UPHELD THE STATE "GROUP LIBEL" LAW ON
THE GROUND THAT IT DID NOT VIOLATE "CIVILIZED 'CANONS OF DECENCY,'
REASONABLENESS, ETC."  SEE 343 U.S., AT 268-269.  SEE ALSO THE DISSENT
OF MR. JUSTICE JACKSON, AT 287-305. 

FN23  THE STORY OF THE USE BY THE FEDERALISTS OF THE ALIEN AND
SEDITION ACTS OF 1798 AS A WEAPON TO SUPPRESS THE POLITICAL OPPOSITION
OF THE JEFFERSONIANS HAS BEEN GRAPHICALLY TOLD IN BOWERS, JEFFERSON AND
HAMILTON, AT 362-411. 

FN24  SEE, E.G., ROTH V. UNITED STATES, 354 U.S. 476. 

FN25  SEE., E.G., CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568. 

FN26  "THE FOUNDERS OF OUR FEDERAL GOVERNMENT WERE TOO CLOSE TO
OPPRESSIONS AND PERSECUTIONS OF THE UNORTHODOX, THE UNPOPULAR, AND THE
LESS INFLUENTIAL TO TRUST EVEN ELECTED REPRESENTATIVES WITH UNLIMITED
POWERS OF CONTROL OVER THE INDIVIDUAL.  FROM THEIR DISTRUST WERE
DERIVED THE FIRST TEN AMENDMENTS, DESIGNED AS WHOLE TO 'LIMIT AND
QUALIFY THE POWERS OF GOVERNMENT,' TO DEFINE 'CASES IN WHICH THE
GOVERNMENT OUGHT NOT TO ACT, OR TO ACT ONLY IN A PARTICULAR MODE,' AND
TO PROTECT UNPOPULAR MINORITIES FROM OPPRESSIVE MAJORITIES. 1 ANNALS
437.  THE FIRST OF THE TEN AMENDMENTS ERECTED A CONSTITUTIONAL SHELTER
FOR THE PEOPLE'S LIBERTIES OF RELIGION, SPEECH, PRESS, AND ASSEMBLY. 
THIS AMENDMENT REFLECTS THE FAITH THAT A GOOD SOCIETY IS NOT STATIC BUT
ADVANCING, AND THAT THE FULLEST POSSIBLE INTERCHANGE OF IDEAS AND
BELIEFS IS ESSENTIAL TO ATTAINMENT OF THIS GOAL.  THE PROPONENTS OF THE
FIRST AMENDMENT, COMMITTED TO THIS FAITH, WERE DETERMINED THAT EVERY
AMERICAN SHOULD POSSESS AN UNRESTRAINED FREEDOM TO EXPRESS HIS VIEWS,
HOWEVER ODIOUS THEY MIGHT BE TO VESTED INTERESTS WHOSE POWER THEY MIGHT
CHALLENGE."  FELDMAN V. UNITED STATES, 322 U.S. 487, 501 (DISSENTING
OPINION).    FN27  TYPICAL OF SUCH CASES ARE THOSE REFERRED TO BY THE
MAJORITY IN ITS OPINION HERE:  SCHNEIDER V. STATE, 308 U.S. 147; COX V.
NEW HAMPSHIRE, 312 U.S. 569; PRINCE V. MASSACHUSETTS, 321 U.S. 158;
KOVACS V. COOPER, 336 U.S. 77. 

FN28  SCHNEIDER V. STATE, 308 U.S. 147, 161. 

FN29  339 U.S. 382, ESPECIALLY AT 398-400. 

FN30  341 U.S. 494, ESPECIALLY AT 508-509. 

FN31  SEE ALSO THE DISCUSSION OF THESE STREET-REGULATION CASES IN MY
DISSENTING OPINION IN BARENBLATT V. UNITED STATES, 360 U.S. 109, 141
142. 

FN32  THE MAJORITY PLACES SOME STRESS UPON THE FACT THAT THE
COMMITTEE DID NOT HAVE INDEPENDENT INVESTIGATORY RESOURCES WITH WHICH
TO SEEK FURTHER EVIDENCE.  IN VIEW OF THE COMPLETE RELIANCE UPON THIS
DECISION TO JUSTIFY THE USE OF AN IDENTICAL PROCEDURE IN IN RE
ANASTAPLO, DECIDED TODAY, POST, P. 82, WHERE THE BAR ADMISSION
COMMITTEE NOT ONLY HAD INVESTIGATORY RESOURCES BUT ALSO UTILIZED THEM
TO THE FULLEST, THIS FACT MUST BE OF LITTLE "WEIGHT" IN THE
CONSTITUTIONAL "BALANCE." 

FN33  IN THIS REGARD, THE SITUATION IS IDENTICAL TO THAT INVALIDATED
AS UNCONSTITUTIONAL BY OUR DECISION IN SHELTON V. TUCKER, 364 U.S.
479.  INDEED, THE ABSENCE OF SUCH A REQUIREMENT WAS THERE STRESSED AS
AN IMPORTANT PART OF THE GROUND UPON WHICH THAT DECISION RESTED.  ID.,
AT 486. 

FN34  IN RE ANASTAPLO, SUPRA.  SEE ALSO THE DISCUSSION IN MY
DISSENTING OPINION IN THAT CASE, ESPECIALLY AT PP. 108-112. 

FN35  THE SITUATION HERE IS THUS IDENTICAL TO THAT IN SPEISER V.
RANDALL, WHERE THE COURT EXPRESSLY RECOGNIZED THE DANGER TO PROTECTED
ASSOCIATIONS.  SEE 357 U.S. 513, 526. 

FN36  CF. SHELTON V. TUCKER, SUPRA, AT 486, N. 7, WHERE WE TOOK NOTE
OF TESTIMONY THAT EFFORTS WERE BEING MADE TO REMOVE FROM A SCHOOL
SYSTEM ALL TEACHERS WHO SUPPORTED SUCH ORGANIZATIONS AS THE AMERICAN
CIVIL LIBERTIES UNION, THE URBAN LEAGUE, THE AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS, AND THE WOMEN'S EMERGENCY COMMITTEE TO OPEN OUR
SCHOOLS. 

FN37  357 U.S. 513. 

FN38  SECTION 32 OF THE CALIFORNIA REVENUE AND TAXATION CODE.  THIS
U.S., AT 516-517, N. 2. 

FN39  357 U.S., AT 526. 

FN40  ID., AT 528.  THE CASES SO DISTINGUISHED WERE GARNER V. BOARD
OF PUBLIC WORKS, 341 U.S. 716; GERENDE V. BOARD OF SUPERVISORS, 341
U.S. 56, AND AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382. 

FN41  THIS LINE HAS ALREADY BEEN CONSIDERABLY LENGTHENED DURING THIS
VERY TERM OF COURT.  SEE, E.G., UPHAUS V. WYMAN, 364 U.S. 388; TIMES
FILM CORP. V. CITY OF CHICAGO, 365 U.S. 43; WILKINSON V. UNITED STATES,
365 U.S. 399; BRADEN V. UNITED STATES, 365 U.S. 431. 

FN42  THOMAS JEFFERSON, FIRST INAUGURAL ADDRESS, MARCH 4, 1801.  THIS
ADDRESS IS REPRINTED IN JONES, PRIMER OF INTELLECTUAL FREEDOM 142-143
(HARVARD UNIVERSITY PRESS, 1949). 

FN43  "CENTURIES OF EXPERIENCE TESTIFY THAT LAWS AIMED AT ONE
POLITICAL OR RELIGIOUS GROUP, HOWEVER RATIONAL THESE LAWS MAY BE IN
THEIR BEGINNINGS, GENERATE HATREDS AND PREJUDICES WHICH RAPIDLY SPREAD
BEYOND CONTROL.  TOO OFTEN IT IS FEAR WHICH INSPIRES SUCH PASSIONS, AND
NOTHING IS MORE RECKLESS OR CONTAGIOUS.  IN THE RESULTING HYSTERIA,
POPULAR INDIGNATION TARS WITH THE SAME BRUSH ALL THOSE WHO HAVE EVER
BEEN ASSOCIATED WITH ANY MEMBER OF THE GROUP UNDER ATTACK OR WHO HOLD A
VIEW WHICH, THOUGH SUPPORTED BY REVERED AMERICANS AS ESSENTIAL TO
DEMOCRACY, HAS BEEN ADOPTED BY THAT GROUP FOR ITS OWN PURPOSES." 
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 448-449
(DISSENTING OPINION). 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THIS JUDGMENT MUST BE REVERSED EVEN IF WE ASSUME WITH MR. JUSTICE
TRAYNOR IN HIS DISSENT IN THE CALIFORNIA SUPREME COURT, 52 CAL. 2D 769,
774, AT 776, 344 P.2D 777, 780, AT 781-782, THAT "A QUESTION AS TO
PRESENT OR PAST MEMBERSHIP IN THE COMMUNIST PARTY IS RELEVANT TO THE
ISSUE OF POSSIBLE CRIMINAL ADVOCACY AND HENCE TO KONIGSBERG'S
QUALIFICATIONS."  THE COMMITTEE DID NOT COME FORWARD, IN THE PROCEEDING
WE PASSED UPON IN 353 U.S. 252, NOR IN THE SUBSEQUENT PROCEEDING, WITH
EVIDENCE TO SHOW THAT KONIGSBERG UNLAWFULLY ADVOCATED THE OVERTHROW OF
THE GOVERNMENT.  UNDER OUR DECISION IN SPEISER V. RANDALL, 357 U.S.
513, THE FOURTEENTH AMENDMENT THEREFORE PROTECTS KONIGSBERG FROM BEING
DENIED ADMISSION TO THE BAR FOR HIS REFUSAL TO ANSWER THE QUESTIONS. 
IN SPEISER WE HELD THAT "  ...  WHEN THE CONSTITUTIONAL RIGHT TO SPEAK
IS SOUGHT TO BE DETERRED BY A STATE'S GENERAL TAXING PROGRAM DUE
PROCESS DEMANDS THAT THE SPEECH BE UNENCUMBERED UNTIL THE STATE COMES
FORWARD WITH SUFFICIENT PROOF TO JUSTIFY ITS INHIBITION."  357 U.S.,
PP. 528-529.  "THERE MAY BE DIFFERENCES OF DEGREE," MR. JUSTICE TRAYNOR
SAID, "IN THE PUBLIC INTEREST IN THE FITNESS OF THE APPLICANTS FOR TAX
EXEMPTION AND FOR ADMISSION TO THE BAR"; YET, AS TO THE LATTER ALSO,
"SUCH A PROCEDURE IS LOGICALLY DICTATED BY SPEISER  ...  ."  52 CAL.
2D, P. 776, 344 P.2D, P. 782.  AND UNLESS MERE WHIMSY GOVERNS THIS
COURT'S DECISIONS IN SITUATIONS IMPOSSIBLE RATIONALLY TO DISTINGUISH,
SUCH A PROCEDURE IS INDEED CONSTITUTIONALLY REQUIRED HERE.  THE SAME
REASONS APPLY.  FOR MR. JUSTICE TRAYNOR WAS ENTIRELY RIGHT IN SAYING:
"WHATEVER ITS RELEVANCY THE QUESTION AS TO PAST OR PRESENT PARTY
MEMBERSHIP IN A PARTICULAR CONTEXT,  ...  IT IS AN EXTRAORDINARY
VARIANT OF THE USUAL INQUIRY INTO CRIME, FOR THE ATTENDANT BURDEN OF
PROOF UPON ANY ONE UNDER QUESTION POSES THE IMMEDIATE THREAT OF PRIOR
RESTRAINT UPON THE FREE SPEECH OF ALL APPLICANTS.  THE POSSIBILITY OF
INQUIRY INTO THEIR SPEECH, THE HEAVY BURDEN UPON THEM TO ESTABLISH ITS
INNOCENCE, AND THE EVIL REPERCUSSIONS OF INQUIRY DESPITE INNOCENCE,
WOULD CONSTRAIN THEM TO SPEAK THEIR MINDS SO NONCOMMITTALLY THAT NO ONE
COULD EVER MISTAKE THEIR INNOCUOUS WORDS FOR ADVOCACY.  THIS GRAVE
DANGER TO FREEDOM OF SPEECH COULD BE AVERTED WITHOUT LOSS TO LEGITIMATE
INVESTIGATION BY SHIFTING THE BURDEN TO THE EXAMINERS.  CONFRONTED WITH
A PRIMA FACIE CASE, AN APPLICANT WOULD THEN BE OBLIGED TO REBUT IT." 
ID., P. 776, 344 P.2D, P. 782. 

THE COURT ADMITS THE COMPLETE ABSENCE OF ANY SUCH PREDICATE BY THE
COMMITTEE FOR ITS QUESTIONS.  THE COURT ATTEMPTS TO DISTINGUISH THE
SITUATIONS IN ORDER TO ESCAPE THE CONTROLLING AUTHORITY OF SPEISER. 
THE SPECIOUSNESS OF ITS REASONING IS EXPOSED IN MR. JUSTICE BLACK'S
DISSENT.  I WOULD REVERSE. 
..END :














IN RE ANASTAPLO 366 U.S. 82 


NO. 58.  ARGUED DECEMBER 14, 1960 - DECIDED APRIL 24, 1961 - 18 ILL. 2D
182, 163 N.E.2D 429, AFFIRMED. 


A RULE OF THE SUPREME COURT OF ILLINOIS PROVIDES THAT APPLICANTS SHALL
BE ADMITTED BY IT TO THE PRACTICE OF LAW AFTER SATISFACTORY EXAMINATION
BY THE BOARD OF EXAMINERS AND CERTIFICATION OF QUALIFICATION BY A
COMMITTEE ON CHARACTER AND FITNESS.  IN HEARINGS BEFORE THAT COMMITTEE,
PETITIONER REFUSED TO ANSWER ANY QUESTIONS PERTAINING TO HIS MEMBERSHIP
IN THE COMMUNIST PARTY, NOT ON THE GROUND OF POSSIBLE SELF
INCRIMINATION, BUT ON THE GROUND THAT SUCH INQUIRIES VIOLATED HIS
FREEDOM OF SPEECH AND ASSOCIATION.  THE COMMITTEE DECLINED TO CERTIFY
HIM AS QUALIFIED FOR ADMISSION TO THE BAR, SOLELY ON THE GROUND THAT
HIS REFUSALS TO ANSWER SUCH QUESTIONS HAD OBSTRUCTED THE COMMITTEE'S
PERFORMANCE OF ITS FUNCTIONS.  THE STATE SUPREME COURT DENIED HIM
ADMISSION TO PRACTICE.   HELD:  DENIAL OF PETITIONER'S APPLICATION FOR
ADMISSION TO THE BAR ON THIS GROUND DID NOT VIOLATE HIS RIGHTS UNDER
THE FOURTEENTH AMENDMENT.  PP. 83-97. 

(A)  IT IS NOT CONSTITUTIONALLY IMPERMISSIBLE FOR A STATE TO ADOPT A
RULE THAT AN APPLICANT WILL NOT BE ADMITTED TO THE PRACTICE OF LAW IF,
AND SO LONG AS, BY REFUSING TO ANSWER MATERIAL QUESTIONS, HE OBSTRUCTS
A BAR EXAMINING COMMITTEE IN ITS PROPER FUNCTIONS OF INTERROGATING AND
CROSS-EXAMINING HIM UPON HIS QUALIFICATIONS.  KONIGSBERG V. STATE BAR,
ANTE, P. 36.  P.88. 

(B)  PETITIONER WAS NOT PRIVILEGED UNDER THE FOURTEENTH AMENDMENT TO
REFUSE TO ANSWER QUESTIONS CONCERNING MEMBERSHIP IN THE COMMUNIST
PARTY.  KONIGSBERG V. STATE BAR, SUPRA.  P. 89. 

(C)  THE FACT THAT THERE WAS NO INDEPENDENT EVIDENCE THAT PETITIONER
HAD EVER BEEN A MEMBER OF THE COMMUNIST PARTY DID NOT PREVENT THE
STATE, ACTING IN GOOD FAITH, FROM MAKING THIS INQUIRY IN AN
INVESTIGATION OF THIS KIND.  PP. 89-90. 

(D)  DURING THE HEARINGS BEFORE THE COMMITTEE, PETITIONER WAS GIVEN
ADEQUATE WARNING AS TO THE CONSEQUENCES OF HIS REFUSAL TO ANSWER THE
COMMITTEE'S QUESTIONS RELATING TO MEMBERSHIP IN THE COMMUNIST PARTY. 
PP. 90-94. 

(E)  IN THE CIRCUMSTANCES OF THIS CASE, PETITIONER'S EXCLUSION FROM
THE BAR ON THE GROUND THAT HE HAD OBSTRUCTED THE COMMITTEE IN THE
PERFORMANCE OF ITS DUTIES WAS NOT ARBITRARY OR DISCRIMINATORY.  PP. 94
97. 

IN RE ANASTAPLO. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS PRESENTED BY THIS CASE ARE SIMILAR TO THOSE INVOLVED IN
NO. 28, KONIGSBERG V. STATE BAR OF CALIFORNIA, DECIDED TODAY, ANTE, P.
36. 

IN 1954 PETITIONER, GEORGE ANASTAPLO, AN INSTRUCTOR AND RESEARCH
ASSISTANCE AT THE UNIVERSITY OF CHICAGO, HAVING PREVIOUSLY PASSED HIS
ILLINOIS BAR EXAMINATIONS, WAS DENIED ADMISSION TO THE BAR OF THAT
STATE BY THE ILLINOIS SUPREME COURT.  (FN1)  THE DENIAL WAS BASED UPON
HIS REFUSAL TO ANSWER QUESTIONS OF THE COMMITTEE ON CHARACTER AND
FITNESS AS TO WHETHER HE WAS A MEMBER OF THE COMMUNIST PARTY.  (FN2)
THIS COURT, TWO JUSTICES DISSENTING, REFUSED REVIEW.  348 U.S. 946.  IN
1957, FOLLOWING THIS COURT'S DECISIONS IN THE EARLIER KONIGSBERG CASE,
353 U.S. 252, AND IN SCHWARE V. BOARD OF BAR EXAMINERS OF NEW MEXICO,
353 U.S. 232, ANASTAPLO SOUGHT TO HAVE THE CHARACTER COMMITTEE REHEAR
HIS APPLICATION FOR CERTIFICATION.  THE COMMITTEE, BY A DIVIDED VOTE,
REFUSED, BUT THE STATE SUPREME COURT REVERSED AND DIRECTED REHEARING. 
(FN3) 

THE ENSUING LENGTHY PROCEEDINGS BEFORE THE COMMITTEE, (FN4) AT WHICH
ANASTAPLO WAS THE ONLY WITNESS, ARE PERHAPS BEST DESCRIBED AS A WIDE
RANGING EXCHANGE BETWEEN THE COMMITTEE AND ANASTAPLO IN WHICH THE
COMMITTEE SOUGHT TO EXPLORE ANASTAPLO'S ABILITY CONSCIENTIOUSLY TO
SWEAR SUPPORT OF THE FEDERAL AND STATE CONSTITUTIONS, AS REQUIRED BY
THE ILLINOIS ATTORNEYS' OATH, AND ANASTAPLO UNDERTOOK TO EXPOUND AND
DEFEND, ON HISTORICAL AND IDEOLOGICAL PREMISES, HIS ABSTRACT BELIEF IN
THE "RIGHT OF REVOLUTION," AND TO RESIST, ON GROUNDS OF ASSERTED
CONSTITUTIONAL RIGHT AND SCRUPLE, COMMITTEE QUESTIONS WHICH HE DEEMED
IMPROPER.  (FN5)  THE COMMITTEE ALREADY HAD BEFORE IT UNCONTROVERTED
EVIDENCE AS TO ANASTAPLO'S "GOOD MORAL CHARACTER," IN THE FORM OF
WRITTEN STATEMENTS OR AFFIDAVITS FURNISHED BY PERSONS OF STANDING
ACQUAINTED WITH HIM, AND THE RECORD ON REHEARING CONTAINS NOTHING WHICH
COULD PROPERLY BE CONSIDERED AS REFLECTING ADVERSELY UPON HIS CHARACTER
OR REPUTATION OR ON THE SINCERITY OF THE BELIEFS HE ESPOUSED BEFORE THE
COMMITTEE.  (FN6)  ANASTAPLO PERSISTED, HOWEVER, IN REFUSING TO ANSWER,
AMONG OTHER INQUIRIES, (FN7) THE COMMITTEE'S QUESTIONS AS TO HIS
POSSIBLE MEMBERSHIP IN THE COMMUNIST PARTY OR IN OTHER ALLEGEDLY
RELATED ORGANIZATIONS. 

THEREAFTER THE COMMITTEE, BY A VOTE OF 11 TO 6, AGAIN DECLINED TO
CERTIFY ANASTAPLO BECAUSE OF HIS REFUSAL TO ANSWER SUCH QUESTIONS, THE
MAJORITY STATING IN ITS REPORT TO THE ILLINOIS SUPREME COURT: 

"HIS (ANASTAPLO'S) FAILURE TO REPLY, IN OUR VIEW, (I) OBSTRUCTS THE
LAWFUL PROCESSES OF THE COMMITTEE, (II) PREVENTS INQUIRY INTO SUBJECTS
WHICH BEAR INTIMATELY UPON THE ISSUE OF CHARACTER AND FITNESS, SUCH AS
LOYALTY TO OUR BASIC INSTITUTIONS, BELIEF IN REPRESENTATIVE GOVERNMENT
AND BONA FIDES OF THE ATTORNEY'S OATH AND (III) RESULTS IN HIS FAILURE
TO MEET THE BURDEN OF ESTABLISHING THAT HE POSSESSES THE GOOD MORAL
CHARACTER AND FITNESS TO PRACTICE LAW, WHICH ARE CONDITIONS TO THE
GRANTING OF A LICENSE TO PRACTICE LAW. 

"WE DRAW NO INFERENCE OF DISLOYALTY OR SUBVERSION FROM APPLICANT'S
CONTINUED REFUSAL TO ANSWER QUESTIONS CONCERNING COMMUNIST OR OTHER
SUBVERSIVE AFFILIATIONS.  WE DO, HOWEVER, HOLD THAT THERE IS A STRONG
PUBLIC INTEREST IN OUR BEING FREE TO QUESTION APPLICANTS FOR ADMISSION
TO THE BAR ON THEIR ADHERENCE TO OUR BASIC INSTITUTIONS AND FORM OF
GOVERNMENT AND THAT SUCH PUBLIC INTEREST IN THE CHARACTER OF ITS
ATTORNEYS OVERRIDES AN APPLICANT'S PRIVATE INTEREST IN KEEPING SUCH
VIEWS TO HIMSELF.  BY FAILING TO RESPOND TO THIS HIGHER PUBLIC INTEREST
WE HOLD THAT THE APPLICANT HAS OBSTRUCTED THE PROPER FUNCTIONS OF THE
COMMITTEE  ...  .  WE CANNOT CERTIFY THE APPLICANT AS WORTHY OF THE
TRUST AND CONFIDENCE OF THE PUBLIC WHEN WE DO NOT KNOW THAT HE IS SO
WORTHY AND WHEN HE HAS PREVENTED US FROM FINDING OUT." 

AT THE SAME TIME THE FULL COMMITTEE ACKNOWLEDGED THAT ANASTAPLO: 

"IS WELL REGARDED BY HIS ACADEMIC ASSOCIATES, BY PROFESSORS WHO HAD
TAUGHT HIM IN SCHOOL AND BY MEMBERS OF THE BAR WHO KNOW HIM PERSONALLY
...  ": 

THAT IT HAD: 

"NOT BEEN SUPPLIED WITH ANY INFORMATION BY ANY THIRD PARTY WHICH IS
DEROGATORY TO ANASTAPLO'S CHARACTER OR GENERAL REPUTATION  ...  ": 

AND THAT IT HAD: 

"RECEIVED NO INFORMATION FROM ANY OUTSIDE SOURCE WHICH WOULD CAST ANY
DOUBT ON APPLICANT'S LOYALTY OR WHICH WOULD TEND TO CONNECT HIM IN ANY
MANNER WITH ANY SUBVERSIVE GROUP." 

FURTHER, THE MAJORITY FOUND THAT ANASTAPLO'S VIEWS: 

"WITH RESPECT TO THE RIGHT TO OVERTHROW THE GOVERNMENT BY FORCE OR
VIOLENCE, WHILE STRONGLY LIBERTARIAN AND EXPRESSED WITH AN INTENSITY
AND FERVOR NOT NECESSARILY SHARED BY ALL GOOD CITIZENS, ARE NOT
INCONSISTENT WITH THOSE HELD BY MANY PATRIOTIC AMERICANS BOTH AT THE
PRESENT TIME AND THROUGHOUT THE COURSE OF THIS COUNTRY'S HISTORY AND DO
NOT IN AND OF THEMSELVES REVEAL ANY ADHERENCE TO SUBVERSIVE
DOCTRINES." 

UPON REVIEW, THE ILLINOIS SUPREME COURT, OVER THREE DISSENTS, (FN8)
CONFIRMED THE COMMITTEE'S REPORT AND REFUSAL TO CERTIFY ANASTAPLO,
REAFFIRMING IN ITS PER CURIAM OPINION THE COURT'S: 

"  ...  EARLIER CONCLUSION THAT A DETERMINATION AS TO WHETHER AN
APPLICANT CAN IN GOOD CONSCIENCE TAKE THE ATTORNEY'S OATH TO SUPPORT
AND DEFEND THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF
ILLINOIS IS IMPOSSIBLE WHERE HE REFUSES TO STATE WHETHER HE IS A MEMBER
OF A GROUP DEDICATED TO THE OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES BY FORCE AND VIOLENCE."  18 ILL. 2D 182, 200-201, 163 N.E.2D
429, 439. 

WE GRANTED CERTIORARI, 362 U.S. 968, AND SET THE MATTER FOR ARGUMENT
ALONG WITH THE KONIGSBERG CASE, ANTE, P. 36, AND COHEN V. HURLEY, POST,
P. 117. 

TWO OF THE BASIC ISSUES IN THIS LITIGATION HAVE BEEN SETTLED BY OUR
CONTEMPORARY KONIGSBERG OPINION.  WE HAVE THERE HELD IT NOT
CONSTITUTIONALLY IMPERMISSIBLE FOR A STATE LEGISLATIVELY, OR THROUGH
COURT-MADE REGULATION AS HERE AND IN KONIGSBERG, TO ADOPT A RULE THAT
AN APPLICANT WILL NOT BE ADMITTED TO THE PRACTICE OF LAW IF, AND SO
LONG AS, BY REFUSING TO ANSWER MATERIAL QUESTIONS, HE OBSTRUCTS A BAR
EXAMINING COMMITTEE IN ITS PROPER FUNCTIONS OF INTERROGATING AND CROSS
EXAMINING HIM UPON HIS QUALIFICATIONS.  THAT SUCH WAS A PROPER FUNCTION
OF THE ILLINOIS CHARACTER COMMITTEE IS INCONTESTABLY ESTABLISHED BY THE
OPINIONS OF THE STATE SUPREME COURT IN THIS CASE.  3 ILL.  2D, AT 476,
121 N.E.2D, AT 829; 18 ILL. 2D, AT 188, 163 N.E.2D, AT 432.  (FN9) 

WE HAVE ALSO HELD IN KONIGSBERG THAT THE STATE'S INTEREST IN
ENFORCING SUCH A RULE AS APPLIED TO REFUSALS TO ANSWER QUESTIONS ABOUT
MEMBERSHIP IN THE COMMUNIST PARTY OUTWEIGHS ANY DETERRENT EFFECT UPON
FREEDOM OF SPEECH AND ASSOCIATION, AND HENCE THAT SUCH STATE ACTION
DOES NOT OFFEND THE FOURTEENTH AMENDMENT.  (FN10)  WE THINK THAT IN
THIS RESPECT NO VALID CONSTITUTIONAL DISTINCTION CAN BE BASED ON THE
CIRCUMSTANCE THAT IN KONIGSBERG THERE WAS SOME, THOUGH WEAK,
INDEPENDENT EVIDENCE THAT THE APPLICANT HAD ONCE BEEN CONNECTED WITH
THE COMMUNIST PARTY, WHILE HERE THERE WAS NO SUCH EVIDENCE AS TO
ANASTAPLO.  WHERE, AS WITH MEMBERSHIP IN THE BAR, THE STATE MAY
WITHHOLD A PRIVILEGE AVAILABLE ONLY TO THOSE POSSESSING THE REQUISITE
QUALIFICATIONS, IT IS OF NO CONSTITUTIONAL SIGNIFICANCE WHETHER THE
STATE'S INTERROGATION OF AN APPLICANT ON MATTERS RELEVANT TO THESE
QUALIFICATIONS - IN THIS CASE COMMUNIST PARTY MEMBERSHIP - IS PROMPTED
BY INFORMATION WHICH IT ALREADY HAS ABOUT HIM FROM OTHER SOURCES, OR
ARISES MERELY FROM A GOOD FAITH BELIEF IN THE NEED FOR EXPLORATORY OR
TESTING QUESTIONING OF THE APPLICANT.  WERE IT OTHERWISE, A BAR
EXAMINING COMMITTEE SUCH AS THIS, HAVING NO RESOURCES OF ITS OWN FOR
INDEPENDENT INVESTIGATION, MIGHT BE PLACED IN THE UNTENABLE POSITION OF
HAVING TO CERTIFY AN APPLICANT WITHOUT ASSURANCE AS TO A SIGNIFICANT
ASPECT OF HIS QUALIFICATIONS WHICH THE APPLICANT HIMSELF IS BEST
CIRCUMSTANCED TO SUPPLY.  THE CONSTITUTION DOES NOT SO UNREASONABLY
FETTER THE STATES.  (FN11) 

TWO ISSUES, HOWEVER, DO ARISE UPON THIS RECORD WHICH ARE NOT DISPOSED
OF BY KONIGSBERG.  THE FIRST IS WHETHER ANASTAPLO WAS GIVEN ADEQUATE
WARNING AS TO THE CONSEQUENCES OF HIS REFUSAL TO ANSWER THE COMMITTEE'S
QUESTIONS RELATING TO COMMUNIST PARTY MEMBERSHIP.  THE SECOND IS
WHETHER HIS EXCLUSION FROM THE BAR ON THIS GROUND WAS, IN THE
CIRCUMSTANCES OF THIS CASE, ARBITRARY OR DISCRIMINATORY. 

                               I. 

THE OPINIONS BELOW REFLECT FULL AWARENESS ON THE PART OF THE
CHARACTER COMMITTEE AND THE ILLINOIS SUPREME COURT OF ANASTAPLO'S
CONSTITUTIONAL RIGHT TO BE WARNED IN ADVANCE OF THE CONSEQUENCES OF HIS
REFUSAL TO ANSWER.  (FN12)  CF. KONIGSBERG V. STATE BAR, 353 U.S., AT
261.  ON THE PART OF ANASTAPLO, HE STANDS IN THE UNUSUAL POSITION OF
ONE WHO HAD ALREADY BEEN CLEARLY SO WARNED AS A RESULT OF HIS EARLIER
EXCLUSION FROM THE BAR FOR REFUSAL TO ANSWER THE VERY QUESTION WHICH
WAS AGAIN PUT TO HIM ON REHEARING.  SEE NOTE 2, SUPRA.  ANASTAPLO
NEVERTHELESS, CONTENDS IN EFFECT THAT HE WAS LULLED INTO A FALSE SENSE
OF SECURITY BY VARIOUS OCCURRENCES AT THE COMMITTEE HEARINGS:  (1)
SEVERAL STATEMENTS BY COMMITTEE MEMBERS INDICATING THAT ALL QUESTIONS
ASKED AND REFUSED AN ANSWER SHOULD NOT BE CONSIDERED AS BEARING THE
SAME LEVEL OF IMPORTANCE IN THE EYES OF THE COMMITTEE; (FN13) AND (2) A
STATEMENT BY ONE OF THE PRINCIPAL COMMITTEE MEMBERS THAT ILLINOIS HAD
NO "PER SE" RULE OF EXCLUSION, THAT IS THAT ANASTAPLO'S REFUSAL TO
ANSWER WOULD NOT AUTOMATICALLY OPERATE TO EXCLUDE HIM FROM THE BAR. 
(FN14) 

THESE SUGGESTIONS, WHETHER TAKEN SEPARATELY OR TOGETHER, CAN ONLY BE
VIEWED AS INSUBSTANTIAL.  THE SUM AND SUBSTANCE OF THE MATTER IS THAT
THROUGHOUT THE RENEWED PROCEEDINGS PETITIONER WAS FULLY AWARE THAT HIS
APPLICATION FOR ADMISSION HAD ALREADY ONCE BEEN REJECTED ON THE VERY
GROUND ABOUT WHICH HE NOW PROFESSES TO HAVE BEEN LEFT IN DOUBT, AND
THAT THE COMMITTEE MADE MANIFEST BOTH THAT IT CONTINUED TO ATTACH
SPECIAL IMPORTANCE TO ITS COMMUNIST PARTY AFFILIATION QUESTIONS, AND
THAT ADVERSE CONSEQUENCES MIGHT WELL FOLLOW IF ANASTAPLO PERSISTED IN
REFUSING TO ANSWER THEM. 

WHAT FOLLOWS WILL SUFFICE TO SHOW THAT STATEMENTS TO THE EFFECT THAT
THE COMMITTEE AS A WHOLE DID NOT NECESSARILY APPROVE OR ADOPT EVERY
QUESTION ASKED BY ANY OF ITS MEMBERS CAN HARLY BE TAKEN AS HAVING LEFT
PETITIONER IN DOUBT AS TO THE CENTRAL IMPORTANCE AND GENERAL APPROVAL
OF QUESTIONS ABOUT COMMUNIST PARTY MEMBERSHIP.  AT AN EARLY STAGE OF
THE PROCEEDINGS ANASTAPLO WAS INFORMED: 

"NOW YOU HAVE ASKED FOR A WARNING WHEN WE PUT A QUESTION TO YOU THAT
WE THINK IS A PIVOTAL, IMPORTANT QUESTION IN CONNECTION WITH YOUR
QUALIFICATION.  I MUST TELL YOU THAT WE CONSIDER THAT QUESTION, 'ARE
YOU A MEMBER OF THE COMMUNIST PARTY,' SUCH A QUESTION; AND THAT THE
REFUSAL TO ANSWER IT MAY HAVE SERIOUS CONSEQUENCES TO YOUR
APPLICATION." 

AND AT THE LAST HEARING ONE OF THE LEADING COMMITTEE MEMBERS
RESPONDED TO ANASTAPLO'S INSISTENCE ON BEING TOLD EVEN MORE EXPLICITLY
WHAT REFUSALS TO ANSWER WOULD BE OF SIGNIFICANCE TO THE COMMITTEE, BY
POINTING OUT THAT: 

"THE SUPREME COURT OF ILLINOIS HAS RULED THAT IT IS PROPER FOR US TO
ASK YOU WHETHER YOU ARE A MEMBER OF THE COMMUNIST PARTY.  YOU HAVE
REFUSED TO ANSWER THE QUESTION."  (FN15) 

FURTHER, PETITIONER'S REPEATED OBJECTIONS THROUGHOUT THE HEARINGS TO
THE EFFECT THAT THERE WAS NO BASIS FOR THE COMMITTEE'S EVIDENT PURPOSE
TO GIVE MUCH GREATER EMPHASIS TO QUESTIONS ABOUT COMMUNIST PARTY
MEMBERSHIP THAN TO OTHER UNANSWERED INQUIRIES, DISPEL ANY DOUBT THAT
ANASTAPLO WAS QUITE AWARE THAT COMMUNIST-AFFILIATION QUESTIONS WERE TO
BE TREATED DIFFERENTLY FROM OTHER QUESTIONS HE HAD REFUSED TO ANSWER. 

THE OTHER ASPECT OF PETITIONER'S CLAIM ON LACK OF ADEQUATE WARNING IS
EQUALLY UNTENABLE.  IT IS TRUE THAT THE COMMITTEE TOLD ANASTAPLO THAT
HIS REFUSAL TO ANSWER QUESTIONS WOULD NOT IPSO FACTO RESULT IN HIS
EXCLUSION FROM THE BAR, BUT ONLY THAT IT "COULD AND MIGHT."  THIS,
HOWEVER, CERTAINLY DID NOT GIVE RISE TO CONSTITUTIONAL INFIRMITY.  EVEN
AS TO ONE CHARGED WITH CRIME DUE PROCESS DOES NOT DEMAND THAT HE BE
WARNED AS TO WHAT SPECIFIC SANCTION WILL BE APPLIED TO HIM IF HE
VIOLATES THE LAW.  IT IS ENOUGH THAT HE KNOW WHAT SANCTION "COULD AND
MIGHT" BE VISITED ON HIM.  ANASTAPLO WAS ENTITLED TO NO MORE.  IT IS OF
COURSE INDUBITABLE THAT BY REASON OF THE ORIGINAL REJECTION OF HIS
APPLICATION, ANASTAPLO KNEW OF ILLINOIS' RULE OF EXCLUSION FOR REFUSAL
TO ANSWER RELEVANT QUESTIONS - INDEED THE VERY QUESTIONS INVOLVED
HERE.  (FN16) 

PETITIONER HAVING BEEN FAIRLY WARNED THAT EXCLUSION FROM ADMISSION TO
PRACTICE MIGHT FOLLOW FROM HIS REFUSAL TO ANSWER, IT MUST BE FOUND THAT
THIS REQUIREMENT OF DUE PROCESS WAS DULY MET. 

                           II. 

PETITIONER'S CLAIM THAT THE APPLICATION OF THE STATE'S EXCLUSIONARY
RULE WAS ARBITRARY AND DISCRIMINATORY IN THE CIRCUMSTANCES OF THIS CASE
MUST ALSO BE REJECTED.  IT IS CONTENDED (1) THAT ANASTAPLO'S REFUSAL TO
ANSWER THESE PARTICULAR QUESTIONS DID NOT OBSTRUCT THE COMMITTEE'S
INVESTIGATION, BECAUSE THAT BODY ALREADY HAD BEFORE IT UNCONTROVERTED
EVIDENCE ESTABLISHING PETITIONER'S GOOD CHARACTER AND FITNESS FOR THE
PRACTICE OF LAW; AND (2) THAT THE REAL REASON WHY THE STATE PROCEEDED
AS IT DID WAS BECAUSE OF ITS DISAPPROVAL OF ANASTAPLO'S
CONSTITUTIONALLY PROTECTED VIEWS ON THE RIGHT TO RESIST TYRANNICAL
GOVERNMENT.  NEITHER CONTENTION CAN BE ACCEPTED.    IT IS SUFFICIENT TO
SAY IN ANSWER TO THE FIRST CONTENTION THAT EVEN THOUGH THE COMMITTEE
ALREADY HAD BEFORE IT SUBSTANTIAL CHARACTER EVIDENCE ALTOGETHER
FAVORABLE TO ANASTAPLO, THERE IS NOTHING IN THE FEDERAL CONSTITUTION
WHICH REQUIRED THE COMMITTEE TO DRAW THE CURTAIN UPON ITS INVESTIGATION
AT THAT POINT.  IT HAD THE RIGHT TO SUPPLEMENT THAT EVIDENCE AND TO
TEST THE APPLICANT'S OWN CREDIBILITY BY INTERROGATING HIM.  AND TO
THOSE ENDS THE COMMITTEE COULD INSIST UPON UNPRIVILEGED ANSWERS TO
RELEVANT QUESTIONS, SUCH AS WE HAVE HELD IN OUR TODAY'S KONIGSBERG
OPINION THOSE RELATING TO COMMUNIST AFFILIATIONS WERE, EVEN THOUGH AS
TO THEM THE COMMITTEE COULD NOT, AS IT DID NOT, DRAW AN UNFAVORABLE
INFERENCE FROM REFUSAL TO ANSWER.  KONIGSBERG V. STATE BAR OF
CALIFORNIA, SUPRA. 

AS TO THE SECOND CONTENTION, THERE IS NOTHING IN THE RECORD WHICH
WOULD JUSTIFY OUR HOLDING THAT THE STATE HAS INVOKED ITS EXCLUSIONARY
REFUSAL-TO-ANSWER RULE AS A MASK FOR ITS DISAPPROVAL OF PETITIONER'S
NOTIONS ON THE RIGHT TO OVERTHROW TYRANNICAL GOVERNMENT.  (FN17)  WHILE
THE COMMITTEE'S MAJORITY REPORT DOES OBSERVE THAT THERE WAS "A SERIOUS
QUESTION" WHETHER ANASTAPLO'S VIEWS ON THE RIGHT TO RESIST JUDICIAL
DECREES WOULD BE COMPATIBLE WITH HIS TAKING OF THE ATTORNEY'S OATH, AND
THAT "CERTAIN" MEMBERS OF THE COMMITTEE THOUGHT THAT SUCH VIEWS
AFFIRMATIVELY DEMONSTRATED HIS DISQUALIFICATION FOR ADMISSION TO THE
BAR, (FN18) IT IS PERFECTLY CLEAR THAT THE ILLINOIS BAR COMMITTEE AND
SUPREME COURT REGARDED PETITIONER'S REFUSAL TO COOPERATE IN THE
COMMITTEE'S EXAMINATION OF HIM AS THE BASIC AND ONLY REASON FOR A
DENIAL OF CERTIFICATION.  (FN19) 

A DIFFERENT CONCLUSION IS NOT SUGGESTED BY THE CIRCUMSTANCES THAT THE
COMMITTEE WHEN IT REHEARD ANASTAPLO EVINCED ITS WILLINGNESS TO CONSIDER
THE EFFECT OF PETITIONER'S REFUSAL TO ANSWER IN LIGHT OF WHAT MIGHT
TRANSPIRE AT THE HEARINGS, AND THAT IT CONTINUED TO EXPLORE
PETITIONER'S VIEWS ON RESISTANCE AND OVERTHROW LONG AFTER IT BECAME
CLEAR THAT HE WOULD REFUSE TO ANSWER COMMUNIST-AFFILIATION QUESTIONS. 
THESE FACTORS INDICATE NO MORE THAN THAT THE COMMITTEE WAS ATTEMPTING
TO EXERCISE AN INFORMED JUDGMENT AS TO WHETHER THE SITUATION WAS AN
APPROPRIATE ONE FOR WAIVER OF THE COMMITTEE'S CONTINUING REQUIREMENT,
EARLIER ENFORCED AFTER THE FIRST ANASTAPLO HEARINGS, THAT SUCH
QUESTIONS MUST BE ANSWERED.  FINALLY, CONTRARY TO THE ASSUMPTION ON
WHICH SOME OF THE ARGUMENTS ON BEHALF OF ANASTAPLO WEEM TO HAVE
PROCEEDED, WE DO NOT UNDERSTAND THAT ILLINOIS' EXCLUSIONARY REQUIREMENT
WILL CONTINUE TO OPERATE TO EXCLUDE ANASTAPLO FROM THE BAR ANY LONGER
THAN HE CONTINUES IN HIS REFUSAL TO ANSWER.  WE FIND NOTHING TO SUGGEST
THAT HE WOULD NOT BE ADMITTED NOW IF HE DECIDES TO ANSWER, ASSUMING OF
COURSE THAT NO GROUNDS JUSTIFYING HIS EXCLUSION FROM PRACTICE
RESULTED.  IN SHORT, PETITIONER HOLDS THE KEY TO ADMISSION IN HIS OWN
HANDS. 

WE CONCLUDE WITH OBSERVING THAT OUR FUNCTION HERE IS SOLELY ONE OF
CONSTITUTIONAL ADJUDICATION, NOT TO PASS JUDGMENT ON WHAT HAS BEEN DONE
AS IF WE WERE ANOTHER STATE COURT OF REVIEW, STILL LESS TO EXPRESS ANY
VIEW UPON THE WISDOM OF THE STATE'S ACTION.  WITH APPROPRIATE REGARD
FOR THE LIMITED RANGE OF OUR AUTHORITY WE CANNOT SAY THAT THE STATE'S
DENIAL OF ANASTAPLO'S APPLICATION FOR ADMISSION TO ITS BAR OFFENDS THE
FEDERAL CONSTITUTION.  (FN20)  THE JUDGMENT OF THE ILLINOIS SUPREME
COURT MUST THEREFORE BE AFFIRMED. 

FN1  THE ILLINOIS PROCEDURE FOR ADMISSION TO THE BAR WAS THUS
SUMMARIZED BY THE STATE SUPREME COURT (3 ILL. 2D, AT 475-476, 121
N.E.2D, AT 829): 

"IN THE EXERCISE OF ITS JUDICIAL POWER OVER THE BAR, AND IN DISCHARGE
OF ITS RESPONSIBILITY FOR THE CHOICE OF PERSONNEL WHO WILL COMPOSE THAT
BAR, THIS COURT HAS ADOPTED RULE 58, (ILL. REV. STAT. 1951, CHAP. 110,
PAR. 259.58,) WHICH GOVERNS ADMISSIONS AND PROVIDES, AMONG OTHER
THINGS, THAT APPLICANTS SHALL BE ADMITTED TO THE PRACTICE OF LAW BY
THIS COURT AFTER SATISFACTORY EXAMINATION BY THE BOARD OF EXAMINERS AND
CERTIFICATION OF APPROVAL BY A COMMITTEE ON CHARACTER AND FITNESS. 
IMPOSES UPON THEM THE DUTY TO EXAMINE APPLICANTS WHO APPEAR BEFORE THEM
FOR MORAL CHARACTER, GENERAL FITNESS TO PRACTICE LAW AND GOOD
CITIZENSHIP.  STILL ANOTHER CONDITION PRECEDENT TO ADMISSION TO
PRACTICE LAW IN THIS STATE, IMPOSED BY THE LEGISLATURE, IS THE TAKING
OF AN OATH TO SUPPORT THE CONSTITUTION OF THE UNITED STATES AND THE
CONSTITUTION OF THE STATE OF ILLINOIS.  (ILL. REV. STAT. 1951, CHAP.
13, PAR. 4.)" 

FN2  ON THAT OCCASION THE STATE SUPREME COURT SAID (3 ILL. 2D, AT
480, 121 N.E.2D, AT 831): 

"IT IS OUR OPINION, THEREFORE, THAT A MEMBER OF THE COMMUNIST PARTY
MAY, BECAUSE OF SUCH MEMBERSHIP, BE UNABLE TRUTHFULLY AND IN GOOD
CONSCIENCE TO TAKE THE OATH REQUIRED AS A CONDITION FOR ADMISSION TO
PRACTICE, AND WE HOLD THAT IT IS RELEVANT TO INQUIRE OF AN APPLICANT AS
TO HIS MEMBERSHIP IN THAT PARTY.  A NEGATIVE ANSWER TO THE QUESTION, IF
ACCEPTED AS TRUE, WOULD END THE INQUIRY ON THE POINT.  IF THE
TRUTHFULNESS OF A NEGATIVE ANSWER WERE DOUBTED, FURTHER QUESTIONS AND
INFORMATION TO TEST THE VERACITY OF THE APPLICANT WOULD BE PROPER.  IF
AN AFFIRMATIVE ANSWER WERE RECEIVED, FURTHER INQUIRY INTO THE
APPLICANT'S INNOCENCE OR KNOWLEDGE AS TO THE SUBVERSIVE NATURE OF THE
ORGANIZATION WOULD BE RELEVANT.  UNDER ANY HYPOTHESIS, THEREFORE,
QUESTIONS AS TO MEMBERSHIP IN THE COMMUNIST PARTY OR KNOWN SUBVERSIVE
'FRONT' ORGANIZATIONS WERE RELEVANT TO THE INQUIRY INTO PETITIONER'S
FITNESS FOR ADMISSION TO THE BAR.  HIS REFUSAL TO ANSWER HAS PREVENTED
THE COMMITTEE FROM INQUIRING FULLY INTO HIS GENERAL FITNESS AND GOOD
CITIZENSHIP AND JUSTIFIES THEIR REFUSAL TO ISSUE A CERTIFICATE."  FN3
IN REMANDING THE MATTER TO THE CHARACTER COMMITTEE, THE ILLINOIS
SUPREME COURT STATED (SEE 18 ILL. 2D, AT 186, 163 N.E.2D, AT 431): 

"'THE PRINCIPAL QUESTION PRESENTED BY THE PETITION FOR REHEARING
CONCERNS THE SIGNIFICANCE OF THE APPLICANT'S VIEWS AS TO THE OVERTHROW
OF GOVERNMENT BY FORCE IN THE LIGHT OF KONIGSBERG V. STATE BAR OF
CALIFORNIA, 353 U.S. 252, AND YATES V. UNITED STATES, 1 L. ED. 2D 1356,
77 S. CT. 1064.  ADDITIONAL QUESTIONS PRESENTED CONCERN THE APPLICANT'S
ACTIVITIES SINCE HIS ORIGINAL APPLICATION WAS DENIED, AND HIS PRESENT
REPUTATION. 

"'WE ARE OF THE OPINION THAT THE COMMITTEE SHOULD HAVE ALLOWED THE
PETITION FOR REHEARING AND HEARD EVIDENCE ON THESE MATTERS, AND THE
COMMITTEE IS REQUESTED TO DO SO, AND TO REPORT THE EVIDENCE AND ITS
CONCLUSIONS.'" 

FN4  THE PROCEEDINGS CONSUMED SIX HEARING DAYS, AND RESULTED IN A
TRANSCRIPT OF OVER 400 PAGES. 

FN5  MORE PARTICULARLY:  PETITIONER WAS FIRST ASKED ROUTINE QUESTIONS
ABOUT HIS PERSONAL HISTORY.  HE REFUSED, ON CONSTITUTIONAL GROUNDS, TO
ANSWER WHETHER HE WAS AFFILIATED WITH ANY CHURCH.  HE ANSWERED ALL
QUESTIONS ABOUT ORGANIZATIONAL RELATIONSHIPS SO LONG AS HE DID NOT KNOW
THAT THE ORGANIZATION WAS "POLITICAL" IN CHARACTER.  HE REFUSED, ON
GROUNDS OF PROTECTED FREE SPEECH AND ASSOCIATION, TO ANSWER WHETHER HE
WAS A MEMBER OF THE COMMUNIST PARTY OR OF ANY OTHER GROUP NAMED IN THE
ATTORNEY GENERAL'S LIST OF "SUBVERSIVE" ORGANIZATIONS, INCLUDING THE KU
KLUX KLAN AND THE SILVER SHIRTS OF AMERICA. 

MUCH OF THE ENSUING FIVE SESSIONS WAS DEVOTED TO DISCUSSION OF
ANASTAPLO'S REASONS FOR BELIEVING THAT INQUIRIES INTO SUCH MATTERS WERE
CONSTITUTIONALLY PRIVILEGED, AND TO AN UNJUSTIFIABLE ATTEMPT, LATER
EXPRESSLY REPUDIATED BY THE COMMITTEE, TO DELVE INTO THE CONSISTENCY OF
PETITIONER'S RELIGIOUS BELIEFS WITH AN ATTORNEY'S DUTY TO TAKE AN OATH
OF OFFICE. 

A SUBSTANTIAL PART OF THE PROCEEDINGS REVOLVED AROUND ANASTAPLO'S
VIEWS AS TO THE RIGHT TO REVOLT AGAINST TYRANNICAL GOVERNMENT, AND THE
RIGHT TO RESIST JUDICIAL DECREES IN EXCEPTIONAL CIRCUMSTANCES. 

FN6  ALTHOUGH THE TRANSCRIPT OF THE PRIOR COMMITTEE PROCEEDINGS HAS
NOT BEEN MADE PART OF THE RECORD BEFORE US, IT IS EVIDENT THAT IT
CONTAINED NOTHING WHICH AFFIRMATIVELY REFLECTED UNFAVORABLY ON
PETITIONER'S CHARACTER OR REPUTATION. 

FN7  SEE NOTE 5, SUPRA. 

FN8  TWO DISSENTING OPINIONS WERE FILED.  JUSTICE BRISTOW DISSENTED
ON CONSTITUTIONAL GROUNDS.  18 ILL. 2D, AT 201, 163 N.E.2D, AT 439. 
JUSTICES SCHAEFER AND DAVIS, JOINING IN A SINGLE OPINION, DID NOT REACH
THE CONSTITUTIONAL QUESTIONS.  18 ILL. 2D, AT 224, 163 N.E.2D, AT 928. 

FN9  IN ITS SECOND OPINION, THE STATE SUPREME COURT STATED (18 ILL.
2D, AT 188, 163 N.E.2D, AT 432): 

"THE COMMITTEE FURTHER ADVISES US THAT IT HAS CONDUCTED NO
INDEPENDENT INVESTIGATION INTO ANASTAPLO'S CHARACTER, REPUTATION OR
ACTIVITIES.  FOR THE VERY PRACTICAL REASON THAT THE COMMITTEE HAS NO
PERSONNEL OR OTHER RESOURCES FOR ANY SUCH INVESTIGATION, THE COMMITTEE
STATES THAT IT HAS TRADITIONALLY ASSERTED THE VIEW THAT IT CANNOT BE
EXPECTED TO CARRY THE BURDEN OF ESTABLISHING, BY INDEPENDENT
INVESTIGATION, WHETHER AN APPLICANT POSSESSES THE REQUISITE CHARACTER
AND FITNESS FOR ADMISSION TO THE BAR AND THAT A DUTY DEVOLVES UPON THE
APPLICANT TO ESTABLISH THAT HE POSSESSES THE NECESSARY QUALIFICATIONS
AND THAT IT IS THEN THE DUTY OF THE COMMITTEE TO TEST, BY HEARINGS AND
QUESTIONING OF THE APPLICANT, THE WORTH OF THE EVIDENCE WHICH HE
PROFFERS.  WE AGREE, AND HAVE HELD THAT THE DISCRETION EXERCISED BY THE
COMMITTEE ON CHARACTER AND FITNESS WILL NOT ORDINARILY BE REVIEWED.  IN
RE FRANK, 293 ILL. 263." 

FN10  THE FACT THAT IN KONIGSBERG THE MATERIALITY OF QUESTIONS
RELATING TO COMMUNIST PARTY MEMBERSHIP RESTED DIRECTLY ON THE EXISTENCE
OF A CALIFORNIA STATUTE DISQUALIFYING FROM MEMBERSHIP IN THE BAR THOSE
ADVOCATING FORCIBLE OVERTHROW OF GOVERNMENT, WHEREAS HERE MATERIALITY
STEMMED FROM THEIR BEARING UPON THE LIKELIHOOD THAT A BAR APPLICANT
WOULD OBSERVE AS A LAWYER THE ORDERLY PROCESSES THAT LIE AT THE ROOTS
OF THIS COUNTRY'S LEGAL AND POLITICAL SYSTEMS, CF. BARENBLATT V. UNITED
STATES, 360 U.S. 109, IS OF COURSE A CIRCUMSTANCE OF NO SIGNIFICANCE. 

FN11  CF. GARNER V. LOS ANGELES BOARD, 341 U.S. 716; AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382. 

FN12  THE COMMITTEE'S MAJORITY REPORT STATES: 

"THE COMMITTEE REPEATEDLY WARNED THE APPLICANT THAT QUESTIONS
REGARDING COMMUNIST AFFILIATION WERE VIEWED AS IMPORTANT BY THE
COMMITTEE MEMBERS AND THAT HIS FAILURE TO RESPOND TO THEM COULD
ADVERSELY AFFECT HIS APPLICATION FOR ADMISSION TO THE BAR." 

THE ILLINOIS SUPREME COURT STATED (18 ILL. 2D, AT 196, 163 N.E.2D, AT
436): 

"  ...  NO PROBLEM EXISTS AS TO INADEQUATE NOTICE OF THE CONSEQUENCES
OF A REFUSAL TO ANSWER; THE APPLICANT WAS SPECIFICALLY NOTIFIED BOTH BY
THE ILLINOIS SUPREME COURT IN ITS OPINION IN 3 ILL. 2D 471, AND BY THE
COMMITTEE ON REHEARING THAT HIS CONTINUED REFUSAL TO ANSWER MIGHT LEAD
TO THE DENIAL OF HIS APPLICATION." 

FN13  IT WAS STATED AT ONE POINT IN THE COMMITTEE HEARINGS:  "IT HAS
BEEN POINTED OUT BEFORE TO YOU, THAT THE MERE FACT THAT A QUESTION IS
ASKED DOES NOT INDICATE THAT OTHER PEOPLE WOULD HAVE ASKED OR APPROVED
THAT QUESTION, NOR DOES IT INDICATE THAT ANY PARTICULAR WEIGHT WILL BE
ATTACHED TO THE ANSWER OR FAILURE TO ANSWER THE QUESTION; DO YOU
UNDERSTAND?"  IT SHOULD BE OBSERVED, HOWEVER, THAT THIS REMARK, AS WAS
ALSO THE CASE WITH AN EARLIER SIMILAR REMARK, WAS MADE IN THE CONTEXT
OF QUESTIONS INVOLVING PETITIONER'S RELIGIOUS BELIEFS.  SEE NOTE 5,
SUPRA. 

FN14  THIS ASPECT OF ANASTAPLO'S CONTENTION IS BASED ON THE FOLLOWING
EPISODE RELATING TO THE COMMITTEE'S COMMUNIST PARTY QUESTIONS: 

"MR. ANASTAPLO:  ...  I WOULD LIKE TO FIND OUT EXACTLY WHAT THIS
ENTAILS.  YOU ARE NOT SUGGESTING THAT REFUSAL TO ANSWER THAT QUESTION
WOULD PER SE BLOCK MY ADMISSION TO THE BAR? 

"COMMISSIONER STEPHAN:  NO, I AM SAYING YOUR REFUSAL TO ANSWER THAT
QUESTION AS TO WHETHER YOU ARE A MEMBER OF THE COMMUNIST PARTY, COULD
AND MIGHT. 

"MR. ANASTAPLO:  I SEE. 

"COMMISSIONER STEPHAN:  TO US, IT IS RELEVANT TO YOUR CHARACTER AND
FITNESS.  IF YOU SHOULD ANSWER THE QUESTION 'YES,' I AM NOT AT ALL SURE
THAT WOULD END THE INQUIRY.  I THINK IF YOU SHOULD ANSWER IT 'YES,' THE
COMMITTEE COULD BE ENTITLED TO PROBE FURTHER AND FIND OUT WHAT KIND OF
COMMUNIST PARTY MEMBER THE APPLICANT MIGHT BE, WHETHER HE IS AN ACTIVE
MEMBER, WHETHER HE IS A DUES-PAYING MEMBER, WHETHER HE IS A POLICY
MAKING MEMBER, WHETHER HE IS AN OFFICER IN A LOCAL GROUP, OR JUST WHAT
HE IS.  SO I WOULD POINT OUT THE SERIOUSNESS OF THAT ISSUE TO YOU AT
THIS TIME. 

"MR. ANASTAPLO:  I ASSUME THAT THE COMMITTEE DOES NOT CARE TO STATE
WHY THIS IS A PARTICULARLY SERIOUS ISSUE WITH RESPECT TO ME?  I MEAN -
I NOTICE YOU SAY NOTHING ABOUT THE KU KLUX KLAN OR THE SILVER SHIRTS OF
AMERICA, ABOUT WHICH YOU HAVE ALSO ASKED WITH THE SAME AMOUNT OF
EMPHASIS UP TO THIS POINT, AND WHICH I HAVE REFUSED TO ANSWER FOR THE
SAME REASONS.  WOULD YOU CARE TO INDICATE WHY YOU SAY THIS ABOUT THIS
QUESTION AND NOT ABOUT THE OTHER ONES? 

"COMMISSIONER STEPHAN:  I THINK THERE IS AN EASY ANSWER TO THAT. 
THIS COMMITTEE HAS NOT COME INTO BEING - THIS COMMITTEE CANNOT
COMPLETELY IGNORE THE HISTORY OF THIS PROCEEDING. 

"COMMISSIONER -:  BUT THE HISTORY INCLUDES THAT QUESTION, AND THAT
QUESTION HAS BEEN BEFORE TWO OF THE HIGH COURTS OF THE COUNTRY. 

"COMMISSIONER STEPHAN:  WHATEVER THE RELEVANCE OF OTHER QUESTIONS, WE
CONSIDER THAT ONE QUITE RELEVANT." 

FN15  THE PARTICULAR IMPORTANCE WHICH THE COMMITTEE ATTACHED TO ITS
COMMUNIST PARTY QUESTIONS WAS STILL FURTHER BROUGHT HOME TO ANASTAPLO
BY THE FACT THAT AFTER THIS COURT'S DECISIONS IN BEILAN V. BOARD OF
EDUCATION, 357 U.S. 399, AND LERNER V. CASEY, 357 U.S. 468, HAD COME
DOWN, THE COMMITTEE WROTE ANASTAPLO SPECIFICALLY DRAWING HIS ATTENTION
TO THEM.    FN16  WE FIND IT DIFFICULT TO UNDERSTAND HOW IT CAN BE
SERIOUSLY SUGGESTED, AS IT FURTHER IS, THAT PETITIONER WAS PUT OFF
GUARD BY THE FACT THAT INSTEAD OF STANDING ON PETITONER'S MERE REFUSAL
TO ANSWER SUCH QUESTIONS, THE COMMITTEE PROCEEDED TO INTERROGATE HIM
WIDELY.  NOT ONLY ARE SUBSEQUENT EVENTS GENERALLY IRRELEVANT TO AN
EARLIER WARNING, BUT A LARGE PART OF THE QUESTIONING WHICH ANASTAPLO
NOW COMPLAINS LED HIM ASTRAY WAS IN FACT DEVOTED TO EXPLORING THE
BEARING OF THESE QUESTIONS ON HIS FITNESS FOR ADMISSION TO THE BAR AND
HIS REASONS FOR DECLINING TO ANSWER THEM. 

FN17  BOTH THE COMMITTEE'S REPORT AND THE STATE SUPREME COURT'S
OPINION MAKE IT APPARENT THAT THIS AREA OF ANASTAPLO'S VIEWS PLAYED NO
PART IN HIS EXCLUSION FROM THE BAR.  SEE PP. 86-88, SUPRA; 18 ILL. 2D,
AT 188, 163 N.E.2D, AT 432. 

FN18  THIS OF COURSE COULD HARDLY BE SO IN THE CONTEXT OF THE
ILLUSTRATIONS WHICH ANASTAPLO GAVE OF HIS VIEWS AS TO WHEN A RIGHT TO
RESIST MIGHT ARISE.  THESE WERE:  NAZI GERMANY; HUNGARY DURING THE 1956
REVOLT AGAINST RUSSIA; A HYPOTHETICAL DECREE OF THIS COURT ESTABLISHING
"SOME DEAD PAGAN RELIGION AS THE OFFICIAL RELIGION OF THE COUNTRY  ...
"; A CAPITAL SENTENCE OF JESUS CHRIST.  ASKED TO GIVE A MORE REALISTIC
INSTANCE OF WHEN RESISTANCE WOULD BE PROPER, ANASTAPLO SUMMARIZED:  "I
KNOW OF NO DECREE, OFF HAND, IN THE HISTORY OF AMERICAN GOVERNMENT,
WHERE SUCH A SINGLE INSTANCE HAS OCCURRED.  NO - I GRANT THAT IT IS
HARD TO FIND THESE INSTANCES.  I THINK IT IS IMPORTANT TO INSIST THAT
THERE MIGHT BE SUCH INSTANCES."  NOTHING IN THE STATE COURT'S OPINION
REMOTELY SUGGESTS ITS APPROBATION OF THESE VIEWS OF "CERTAIN" COMMITTEE
MEMBERS. 

FN19  SUPRA, PP. 86-88. 

FN20  APART FROM ANYTHING ELSE, THERE IS OF COURSE NO ROOM UNDER OUR
RULES FOR THE SUGGESTION MADE IN PETITIONER'S BRIEF THAT HE BE ADMITTED
TO THE BAR OF THIS COURT, "INDEPENDENTLY OF THE ACTION ILLINOIS MIGHT
BE INDUCED TO TAKE."  SEE RULE 5, REVISED RULES OF THIS COURT. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING.   THE PETITIONER GEORGE
ANASTAPLO HAS BEEN DENIED THE RIGHT TO PRACTICE LAW IN THE STATE OF
ILLINOIS FOR REFUSING TO ANSWER QUESTIONS ABOUT HIS VIEWS AND
ASSOCIATIONS.  I THINK THIS ACTION BY THE STATE VIOLATED RIGHTS
GUARANTEED TO HIM BY THE FIRST AND FOURTEENTH AMENDMENTS.  THE REASONS
WHICH LEAD ME TO THIS CONCLUSION ARE LARGELY THE SAME AS THOSE
EXPRESSED IN MY DISSENTING OPINION IN KONIGSBERG V. STATE BAR OF
CALIFORNIA, THE COMPANION CASE DECIDED TODAY, ANTE, P. 56.  BUT THIS
CASE PROVIDES SUCH A STRIKING ILLUSTRATION OF THE DESTRUCTION THAT CAN
BE INFLICTED UPON INDIVIDUAL LIBERTY WHEN THIS COURT FAILS TO ENFORCE
THE FIRST AMENDMENT TO THE FULL EXTENT OF ITS EXPRESS AND UNEQUIVOCAL
TERMS THAT I THINK IT DESERVES SEPARATE TREATMENT. 

THE CONTROVERSY BEGAN IN NOVEMBER 1950, (FN1) WHEN ANASTAPLO, A
STUDENT AT THE UNIVERSITY OF CHICAGO LAW SCHOOL, HAVING TWO MONTHS
PREVIOUSLY SUCCESSFULLY PASSED THE ILLINOIS BAR EXAMINATION, APPEARED
BEFORE THE STATE'S COMMITTEE ON CHARACTER AND FITNESS FOR THE USUAL
INTERVIEW PRELIMINARY TO ADMISSION TO THE BAR.  THE PERSONAL HISTORY
FORM REQUIRED BY STATE LAW HAD BEEN FILLED OUT AND FILED WITH THE
COMMITTEE PRIOR TO HIS APPEARANCE AND SHOWED THAT ANASTAPLO WAS AN
UNUSUALLY WORTHY APPLICANT FOR ADMISSION.  HIS EARLY LIFE HAD BEEN
SPENT IN A SMALL TOWN IN SOUTHERN ILLINOIS WHERE HIS PARENTS, WHO HAD
IMMIGRATED TO THIS COUNTRY FROM GREECE BEFORE HIS BIRTH, STILL
RESIDED.  AFTER HAVING RECEIVED HIS PRECOLLEGE EDUCATION IN THE PUBLIC
SCHOOLS OF HIS HOME TOWN, HE HAD DISCONTINUED HIS EDUCATION, AT THE AGE
OF EIGHTEEN, AND JOINED THE AIR FORCE DURING THE MIDDLE OF WORLD WAR II
- FLYING AS A NAVIGATOR IN EVERY MAJOR THEATER OF THE MILITARY
OPERATIONS OF THAT WAR.  UPON RECEIVING AN HONORABLE DISCHARGE IN 1947,
HE HAD COME TO CHICAGO AND RESUMED HIS EDUCATION, OBTAINING HIS
UNDERGRADUATE DEGREE AT THE UNIVERSITY OF CHICAGO AND ENTERING
IMMEDIATELY INTO THE STUDY OF LAW AT THE UNIVERSITY OF CHICAGO LAW
SCHOOL.  HIS RECORD THROUGHOUT HIS LIFE, BOTH AS A STUDENT AND AS A
CITIZEN, WAS UNBLEMISHED. 

THE PERSONAL HISTORY FORM THUS DID NOT CONTAIN SO MUCH AS ONE
STATEMENT OF FACT ABOUT ANASTAPLO'S PAST LIFE OR CONDUCT THAT COULD
HAVE, IN ANY WAY, CAST DOUBT UPON HIS FITNESS FOR ADMISSION TO THE
BAR.  IT DID, HOWEVER, CONTAIN A STATEMENT OF OPINION WHICH, IN THE
MINDS OF SOME OF THE MEMBERS OF THE COMMITTEE AT LEAST, DID CAST SUCH
DOUBT AND IN THAT WAY SERVED TO TOUCH OFF THIS CONTROVERSY.  THIS WAS A
STATEMENT MADE BY ANASTAPLO IN RESPONSE TO THE COMMAND OF THE PERSONAL
HISTORY FORM: "STATE WHAT YOU CONSIDER TO BE THE PRINCIPLES UNDERLYING
(A) THE CONSTITUTION OF THE UNITED STATES."   ANASTAPLO'S RESPONSE TO
THAT COMMAND WAS AS FOLLOWS: 

"ONE PRINCIPLE CONSISTS OF THE DOCTRINE OF THE SEPARATION OF POWERS;
THUS, AMONG THE EXECTUIVE, LEGISLATIVE, AND JUDICIARY ARE DISTRIBUTED
VARIOUS FUNCTIONS AND POWERS IN A MANNER DESIGNED TO PROVIDE FOR A
BALANCE OF POWER, THEREBY INTENDING TO PREVENT TOTALLY UNRESTRAINED
ACTION BY ANY ONE BRANCH OF GOVERNMENT.  ANOTHER BASIC PRINCIPLE (AND
THE MOST IMPORTANT) IS THAT SUCH GOVERNMENT IS CONSTITUTED SO AS TO
SECURE CERTAIN INALIENABLE RIGHTS, THOSE RIGHTS TO LIFE, LIBERTY AND
THE PURSUIT OF HAPPINESS (AND ELEMENTS OF THESE RIGHTS ARE EXPLICITLY
SET FORTH IN SUCH PARTS OF THE CONSTITUTION AS THE BILL OF RIGHTS.).
AND, OF COURSE, WHENEVER THE PARTICULAR GOVERNMENT IN POWER BECOMES
DESTRUCTIVE OF THESE ENDS, IT IS THE RIGHT OF THE PEOPLE TO ALTER OR TO
ABOLISH IT AND THEREUPON TO ESTABLISH A NEW GOVERNMENT.  THIS IS HOW I
VIEW THE CONSTITUTION." 

WHEN ANASTAPLO APPEARED BEFORE A TWO-MAN SUBCOMMITTEE OF THE
COMMITTEE ON CHARACTER AND FITNESS, ONE OF ITS MEMBERS ALMOST
IMMEDIATELY ENGAGED HIM IN A DISCUSSION RELATING TO THE MEANING OF
THESE ITALICIZED WORDS WHICH WERE SUBSTANTIALLY TAKEN FROM THAT PART OF
THE DECLARATION OF INDEPENDENCE SET OUT BELOW.  (FN2)  THIS DISCUSSION
SOON DEVELOPED INTO AN ARGUMENT AS ANASTAPLO STOOD BY HIS STATEMENT AND
INSISTED THAT IF A GOVERNMENT GETS BAD ENOUGH, THE PEOPLE HAVE A "RIGHT
OF REVOLUTION."  IT WAS AT THIS JUNCTURE IN THE PROCEEDINGS THAT THE
OTHER MEMBER OF THE SUBCOMMITTEE INTERRUPTED WITH THE QUESTION: "ARE
YOU A MEMBER OF ANY ORGANIZATION THAT IS LISTED ON THE ATTORNEY
GENERAL'S LIST, TO YOUR KNOWLEDGE?"  AND THIS QUESTION WAS FOLLOWED UP
A FEW MOMENTS LATER WITH THE QUESTION: "ARE YOU A MEMBER OF THE
COMMUNIST PARTY?"  (FN3)  A COLLOQUY THEN ENSUED BETWEEN ANASTAPLO AND
THE TWO MEMBERS OF THE SUBCOMMITTEE AS TO THE LEGITIMACY OF THE
QUESTIONS BEING ASKED, ANASTAPLO INSISTING THAT THESE QUESTIONS WERE
NOT REASONABLY RELATED TO THE COMMITTEE'S FUNCTIONS AND THAT THEY
VIOLATED HIS RIGHTS UNDER THE CONSTITUTION, AND THE MEMBERS OF THE
SUBCOMMITTEE INSISTING THAT THE QUESTIONS WERE ENTIRELY LEGITIMATE. 

THE SUBCOMMITTEE THEN REFUSED TO CERTIFY ANASTAPLO FOR ADMISSION TO
THE BAR BUT, INSTEAD, SET A FURTHER HEARING ON THE MATTER BEFORE THE
FULL COMMITTEE.  THAT NEXT HEARING, AS WELL AS ALL OF THE HEARINGS THAT
FOLLOWED, HAVE BEEN LITTLE MORE THAN REPETITIONS OF THE FIRST.  THE
RIFT BETWEEN ANASTAPLO AND THE COMMITTEE HAS GROWN EVER WIDER WITH EACH
SUCCESSIVE HEARING.  ANASTAPLO HAS STEADFASTLY REFUSED TO ANSWER ANY
QUESTIONS PUT BY THE COMMITTEE WHICH INQUIRED INTO HIS POLITICAL
ASSOCIATIONS OR RELIGIOUS BELIEFS.  A MAJORITY OF THE MEMBERS OF THE
COMMITTEE, FACED WITH THIS REFUSAL, HAS GROWN MORE AND MORE INSISTENT
THAT IT HAS THE RIGHT TO FORCE HIM TO ANSWER ANY QUESTION IT SEES FIT
TO ASK.  THE RESULT HAS BEEN A SERIES OF HEARINGS IN WHICH QUESTIONS
HAVE BEEN PUT TO ANASTAPLO WITH REGARD TO HIS "POSSIBLE" ASSOCIATION
WITH SCORES OF ORGANIZATIONS, INCLUDING THE KU KLUX KLAN, THE SILVER
SHIRTS (AN ALLEGEDLY FASCIST ORGANIZATION), EVERY ORGANIZATION ON THE
SO-CALLED ATTORNEY GENERAL'S LIST, THE DEMOCRATIC PARTY, THE REPUBLICAN
PARTY, AND THE COMMUNIST PARTY.  AT ONE POINT IN THE PROCEEDINGS, AT
LEAST TWO OF THE MEMBERS OF THE COMMITTEE INSISTED THAT HE TELL THE
COMMITTEE WHETHER HE BELIEVES IN A SUPREME BEING AND ONE OF THESE
MEMBERS STATED THAT, AS FAR AS HIS VOTE WAS CONCERNED, A MAN'S "BELIEF
IN THE DEITY  ...  HAS A SUBSTANTIAL BEARING UPON HIS FITNESS TO
PRACTICE LAW." 

IT IS TRUE, AS THE MAJORITY POINTS OUT, THAT THE COMMITTEE DID NOT
EXPRESSLY REST ITS REFUSAL TO CERTIFY ANASTAPLO FOR ADMISSION TO THE
BAR EITHER UPON HIS VIEWS ON THE "RIGHT OF REVOLUTION," AS THAT "RIGHT"
IS DEFINED IN THE DECLARATION OF INDEPENDENCE, OR UPON HIS REFUSAL TO
DISCLOSE HIS BELIEFS WITH REGARD TO THE EXISTENCE OF GOD, (FN4) OR UPON
HIS REFUSALS TO DISCLOSE ANY OF HIS POLITICAL ASSOCIATIONS OTHER THAN
HIS "POSSIBLE" ASSOCIATION WITH THE COMMUNIST PARTY.  BUT IT CERTAINLY
CANNOT BE DENIED THAT THE OTHER QUESTIONS WERE ASKED AND, SINCE WE
SHOULD NOT PRESUME THAT THESE MEMBERS OF THE COMMITTEE DID NOT WANT
ANSWERS TO THEIR QUESTIONS, IT SEEMS CERTAIN THAT ANASTAPLOS' REFUSAL
TO ANSWER THEM MUST HAVE HAD SOME INFLUENCE UPON THE FINAL OUTCOME OF
THE HEARINGS.  IN ANY CASE, WHEN THE COMMITTEE DID VOTE, 11-6, NOT TO
CERTIFY ANASTAPLO FOR ADMISSION, NOT ONE MEMBER WHO ASKED ANY QUESTION
ANASTAPLO HAD REFUSED TO ANSWER VOTED IN HIS FAVOR. 

THE REASONS FOR ANASTAPLO'S POSITION HAVE BEEN STATED BY HIM TIME AND
AGAIN - FIRST, TO THE COMMITTEE AND, LATER, IN THE BRIEFS AND ORAL
ARGUMENTS HE PRESENTED IN HIS OWN BEHALF, BOTH BEFORE THIS COURT AND
BEFORE THE SUPREME COURT OF ILLINOIS.  FROM A LEGAL STANDPOINT, HIS
POSITION THROUGHOUT HAS BEEN THAT THE FIRST AMENDMENT GAVE HIM A RIGHT
NOT TO DISCLOSE HIS POLITICAL ASSOCIATIONS OR HIS RELIGIOUS BELIEFS TO
THE COMMITTEE.  BUT HIS DECISION TO REFUSE TO DISCLOSE THESE
ASSOCIATIONS AND BELIEFS WENT MUCH DEEPER THAN A BARE RELIANCE UPON
WHAT HE CONSIDERED TO BE HIS LEGAL RIGHTS.  THE RECORD SHOWS THAT HIS
REFUSAL TO ANSWER THE COMMITTEE'S QUESTION STEMMED PRIMARILY FROM HIS
BELIEF THAT HE HAD A DUTY, BOTH TO SOCIETY AND TO THE LEGAL PROFESSION,
NOT TO SUBMIT TO THE DEMANDS OF THE COMMITTEE BECAUSE HE BELIEVED THAT
THE QUESTIONS HAD BEEN ASKED SOLELY FOR THE PURPOSE OF HARASSING HIM
BECAUSE HE HAD EXPRESSED AGREEMENT WITH THE ASSERTION OF THE RIGHT OF
REVOLUTION AGAINST AN EVIL GOVERNMENT SET OUT IN THE DECLARATION OF
INDEPENDENCE.  HIS POSITION WAS PERHAPS BEST STATED BEFORE THE
COMMITTEE IN HIS CLOSING REMARKS AT THE FINAL SESSION: 

"IT IS TIME NOW TO CLOSE.  DIFFERENCES BETWEEN US REMAIN.  I LEAVE TO
OTHERS THE SOMETIMES NECESSARY BUT RELATIVELY EASY TASK OF PRAISING
ATHENS TO ATHENIANS.  BESIDES, YOU SHOULD WANT NO HIGHER PRAISE THAN
WHAT I HAVE SAID ABOUT THE CONTRIBUTION THE BAR CAN MAKE TO REPUBLICAN
GOVERNMENT.  THE BAR DESERVES NO HIGHER PRAISE UNTIL IT MAKES THAT
CONTRIBUTION.  YOU SHOULD BE GRATEFUL THAT I HAVE NOT MADE A COMPLETE
SUBMISSION TO YOU, EVEN THOUGH I HAVE COOPERATED AS FULL AS GOOD
CONSCIENCE PERMITS.  TO THE EXTENT I HAVE NOT SUBMITTED, TO THAT EXTENT
HAVE I CONTRIBUTED TO THE SOLUTION OF ONE OF THE MOST PRESSING PROBLEMS
THAT YOU, AS MEN DEVOTED TO CHARACTER AND FITNESS, MUST FACE.  THIS IS
THE PROBLEM OF SELECTING THE STANDARDS AND METHODS THE BAR MUST EMPLOY
IF IT IS TO HELP PRESERVE AND NOURISH THAT IDEALISM, THAT VITAL
INTEREST IN THE PROBLEM OF JUSTICE, THAT SO OFTEN LIES AT THE HEART OF
THE INTELLIGENT AND SENSITIVE LAW STUDENT'S CHOICE OF CAREER.  THIS IS
AN IDEALISM WHICH SO MANY THINGS ABOUT THE BAR, AND EVEN ABOUT BAR
ADMISSION PRACTICES, DISCOURAGE AND MAKE UNFASHIONABLE TO DEFEND OR
RETAIN.  THE WORTHIEST MEN LIVE WHERE THE REWARDS OF VIRTUE ARE
GREATEST. 

"I LEAVE WITH YOU MEN OF ILLINOIS THE SUGGESTION THAT YOU DO
YOURSELVES AND THE BAR THE HONOR, AS WELL AS THE SERVICE, OF
ANTICIPATING WHAT I TRUST WILL BE THE JUDGMENT OF OUR MOST THOUGHTFUL
JUDGES.  I MOVE THEREFORE THAT YOU RECOMMEND TO THE SUPREME COURT OF
ILLINOIS THAT I BE ADMITTED TO THE BAR OF THIS STATE.  AND I SUGGEST
THAT THIS RECOMMENDATION BE MADE RETROACTIVE TO NOVEMBER 10, 1950 WHEN
A YOUNG AIR FORCE VETERAN FIRST WAS SO FOOLISH AS TO CONTINUE TO SERVE
HIS COUNTRY BY DARING TO DEFEND AGAINST A COMMITTEE ON CHARACTER AND
FITNESS THE TEACHING OF THE DECLARATION OF INDEPENDENCE ON THE RIGHT OF
REVOLUTION." 

THE REASONS FOR THE COMMITTEE'S POSITION ARE ALSO CLEAR.  ITS JOB,
THROUGHOUT THESE PROCEEDINGS, HAS BEEN TO DETERMINE WHETHER ANASTAPLO
IS POSSESSED OF THE NECESSARY GOOD MORAL CHARACTER TO JUSTIFY HIS
ADMISSION TO THE BAR OF ILLINOIS.  IN THAT REGARD, THE COMMITTEE HAS
BEEN GIVEN THE BENEFIT OF VOLUMINOUS AFFIDAVITS FROM MEN OF STANDING IN
THEIR PROFESSIONS AND IN THE COMMUNITY THAT ANASTAPLO IS POSSESSED OF
AN UNUSUALLY FINE CHARACTER.  DR. ALEXANDER MEIKLEJOHN, PROFESSOR OF
PHILOSOPHY, EMERITUS, AT THE UNIVERSITY OF WISCONSIN, FOR EXAMPLE,
DESCRIBED ANASTAPLO AS "INTELLECTUALLY ABLE, A HARD, THOROUGH STUDENT
AND MOVED BY HIGH DEVOTION TO THE PRINCIPLES OF FREEDOM AND JUSTICE." 
PROFESSOR MALCOLM P. SHARP OF THE UNIVERSITY OF CHICAGO LAW SCHOOL
STATED: "NO QUESTION HAS EVER BEEN RAISED ABOUT HIS HONESTY OR HIS
INTEGRITY, AND HIS GENERAL CONDUCT, CHARACTERIZED BY FRIENDLINESS,
QUIET INDEPENDENCE, INDUSTRY AND COURAGE, IS REFLECTED IN HIS
REPUTATION."  PROFESSOR ROSCOE T. STEFFEN OF THE UNIVERSITY OF CHICAGO
LAW SCHOOL SAID:  "I KNOW OF NO ONE WHO DOUBTS HIS HONESTY AND
INTEGRITY."  YVES R. SIMON, PROFESSOR OF PHILOSOPHY AT THE UNIVERSITY
OF CHICAGO, SAID:  "I CONSIDER ANASTAPLO AS A YOUND MAN OF THE MOST
DISTINGUISHED AND LOFTY MORAL CHARACTER.  EVERYBODY RESPECTS HIM AND
LIKES HIM."  ANGELO G. GEOCARIS, A PRACTICING ATTORNEY IN THE CITY OF
CHICAGO, SAID OF ANASTAPLO:  "HIS PERSONAL CODE OF ETHICS IS UNEXCELLED
BY ANY PRACTICING ATTORNEY I HAVE MET IN THE STATE OF ILLINOIS." 
ROBERT J. COUGHLAN, DIVISION DIRECTOR OF A RESEARCH PROJECT AT THE
UNIVERSITY OF CHICAGO, SAID: "HIS HONESTY AND INTEGRITY ARE, IN MY
OPINION, BEYOND QUESTION.  I WOULD HIGHLY RECOMMEND HIM WITHOUT THE
SLIGHTEST RESERVATION FOR ANY POSITION INVOLVING THE HIGHEST OR MOST
SACRED TRUST.  THE APPLICANT IS A RARE MAN AMONG US TODAY:  HE HAS AN
INVIOLABLE SENSE OF HONOR IN THE GREAT TRADITIONS OF GREEK CULTURE AND
THOUGHT.  IF ADMITTED TO THE AMERICAN BAR, HE COULD DO NOTHING THAT
WOULD NOT REFLECT GLORY ON THAT INSTITUTION."    THESE AFFIDAVITS AND
MANY MORE LIKE THEM WERE PRESENTED TO THE COMMITTEE.  MOST OF THE
STATEMENTS CAME FROM MEN WHO KNEW ANASTAPLO INTIMATELY ON THE
UNIVERSITY OF CHICAGO CAMPUS WHERE ANASTAPLO HAS REMAINED THROUGHOUT
THE PROCEEDINGS HERE INVOLVED, WORKING AS A RESEARCH ASSISTANT AND AS A
LECTURER IN LIBERAL ARTS AND STUDYING FOR AN ADVANCED DEGREE IN HISTORY
AND SOCIAL SCIENCES.  EVEN AT THE PRESENT TIME, HE IS STILL THERE
PREPARING HIS DOCTORAL DISSERTATION WHICH, UNDERSTANDABLY ENOUGH, IS
TENTATIVELY ENTITLED "THE HISTORICAL AND PHILOSOPHICAL BACKGROUND OF
THE FIRST AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES." 

THE RECORD ALSO SHOWS THAT THE COMMITTEE SUPPLEMENTED THE INFORMATION
IT HAD OBTAINED ABOUT ANASTAPLO FROM THESE AFFIDAVITS BY CONDUCTING
INFORMAL INDEPENDENT INVESTIGATIONS INTO HIS CHARACTER AND REPUTATION. 
IT SENT AGENTS TO ANASTAPLO'S HOME TOWN IN SOUTHERN ILLINOIS AND THEY
QUESTIONED THE PEOPLE WHO KNEW HIM THERE.  SIMILAR INQUIRIES WERE MADE
AMONG THOSE WHO KNEW HIM IN CHICAGO.  BUT THESE INTENSIVE
INVESTIGATIONS APPARENTLY (FN5) FAILED TO PRODUCE SO MUCH AS ONE MAN IN
CHICAGO OR IN THE WHOLE STATE OF ILLINOIS WHO COULD SAY OR WOULD SAY,
DIRECTLY, INDIRECTLY OR EVEN BY HEARSAY, ONE THING DEROGATORY TO THE
CHARACTER, LOYALTY OR REPUTATION OF GEORGE ANASTAPLO, AND NOT ONE MAN
COULD BE FOUND WHO WOULD IN ANY WAY LINK HIM WITH THE COMMUNIST PARTY. 
THIS FACT IS PARTICULARLY SIGNIFICANT IN VIEW OF THE EVIDENCE IN THE
RECORD THAT THE COMMITTEE HAD BECOME ACQUAINTED WITH A PERSON WHO
APPARENTLY HAD BEEN A MEMBER OF A COMMUNIST PARTY CELL ON THE
UNIVERSITY OF CHICAGO CAMPUS AND THAT THIS PERSON WAS ASKED TO AND DID
IDENTIFY FOR THE COMMITTEE EVERY MEMBER OF THE PARTY WHOM HE KNEW. 

IN ADDITION TO THE INFORMATION IT HAD OBTAINED FROM THE AFFIDAVITS
AND FROM ITS INDEPENDENT INVESTIGATIONS, THE COMMITTEE HAD ONE MORE
IMPORTANT SOURCE OF INFORMATION ABOUT ANASTAPLO'S CHARACTER.  IT HAD
THE OPPORTUNITY TO OBSERVE THE MANNER IN WHICH HE CONDUCTED HIMSELF
DURING THE MANY HOURS OF HEARINGS BEFORE IT.  THAT MANNER, AS REVEALED
BY THE RECORD BEFORE US AND UNDENIED BY ANY FINDINGS OF THE COMMITTEE
TO THE CONTRARY, LEFT ABSOLUTELY NOTHING TO BE DESIRED.  FACED WITH A
BARRAGE OF SOMETIMES HIGHLY PROVOCATIVE AND TOTALLY IRRELEVANT
QUESTIONS FROM MEN OPENLY HOSTILE TO HIS POSITION, ANASTAPLO INVARIABLY
RESPONDED WITH ALL THE DIGNITY AND RESTRAINT ATTRIBUTED TO HIM IN THE
AFFIDAVITS OF HIS FRIENDS.  MOREOVER, IT IS NOT AMISS TO SAY THAT HE
CONDUCTED HIMSELF IN PRECISELY THE SAME MANNER DURING THE ORAL ARGUMENT
HE PRESENTED BEFORE THIS COURT. 

THUS, IT IS AGAINST THE BACKGROUND OF A MOUNTAIN OF EVIDENCE SO
FAVORABLE TO ANASTAPLO THAT THE WORD "OVERWHELMING" SEEMS INADEQUATE TO
DESCRIBE IT THAT THE ACTION OF THE COMMITTEE IN REFUSING TO CERTIFY
ANASTAPLO AS FIT FOR ADMISSION TO THE BAR MUST BE CONSIDERED.  THE
MAJORITY OF THE COMMITTEE RATIONALIZED ITS POSITION ON THE GROUND THAT
WITHOUT ANSWERS TO SOME OF THE QUESTIONS IT HAD ASKED, IT COULD NOT
CONSCIENTIOUSLY PERFORM ITS DUTY OF DETERMINING ANASTAPLO'S CHARACTER
AND FITNESS TO BE A LAWYER.  A MINORITY OF THE COMMITTEE DESCRIBED THIS
EXPLANATION AS "PURE SOPHISTRY."  AND IT IS SIMPLY IMPOSSIBLE TO READ
THIS RECORD WITHOUT AGREEING WITH THE MINORITY.  FOR, IT IS DIFFICULT
TO SEE WHAT POSSIBLE RELEVANCY ANSWERS TO THE QUESTIONS COULD HAVE HAD
IN THE MINDS OF THESE MEMBERS OF THE COMMITTEE AFTER THEY HAD RECEIVED
SUCH COMPLETELY OVERWHELMING PROOF BEYOND A REASONABLE DOUBT OF
ANASTAPLO'S GOOD CHARACTER AND STAUNCH PATRIOTISM.  I CAN THINK OF NO
SOUND REASON FOR FURTHER INSISTENCE UPON THESE ANSWERS OTHER THAN THE
VERY QUESTIONABLE, BUT VERY HUMAN, FEELING THAT THIS YOUNG MAN SHOULD
NOT BE PERMITTED TO RESIST THE COMMITTEE'S DEMANDS WITHOUT BEING
COMPELLED TO SUFFER FOR IT IN SOME WAY. 

IT IS INTIMATED THAT THE COMMITTEE'S FEELING OF RESENTMENT MIGHT BE
ASSUAGED AND THAT ANASTAPLO MIGHT EVEN BE ADMITTED TO THE BAR IF HE
WOULD ONLY GIVE IN TO THE DEMANDS OF THE COMMITTEE AND ADD THE
REQUESTED TEST OATH TO THE ALREADY OVERWHELMING PROOF HE HAS SUBMITTED
TO ESTABLISH HIS GOOD CHARACTER AND PATRIOTISM.  IN THIS CONNECTION,
THE COURT SAYS:  "WE FIND NOTHING TO SUGGEST THAT HE WOULD NOT BE
ADMITTED NOW IF HE DECIDES TO ANSWER, ASSUMING OF COURSE THAT NO
GROUNDS JUSTIFYING HIS EXCLUSION FROM PRACTICE RESULTED.  IN SHORT,
PETITIONER HOLDS THE KEY TO ADMISSION IN HIS OWN HANDS."  HOWEVER WELL
THIS FAMILIAR PHRASE MAY FIT OTHER CASES, IT DOE NOT FIT THIS ONE.  FOR
THE ATTITUDE OF THE COMMITTEE, AS REVEALED BY THE TRANSCRIPT OF ITS
HEARINGS, DOES NOT SUPPORT A BELIEF THAT ANASTAPLO CAN GAIN ADMISSION
TO THE ILLINOIS BAR MERELY BY ANSWERING THE COMMITTEE'S QUESTIONS,
WHATEVER ANSWERS HE SHOULD GIVE.  INDEED, THE COMMITTEE'S OWN MAJORITY
REPORT DISCLOSES THAT ANASTAPLO'S BELIEF IN THE "RIGHT OF REVOLUTION"
WAS REGARDED AS RAISING "A SERIOUS QUESTION" IN THE MINDS OF A MAJORITY
OF THE COMMITTEE WITH REGARD TO HIS FITNESS TO PRACTICE LAW AND THAT
"CERTAIN" MEMBERS OF THAT MAJORITY (HOW MANY, WE CANNOT KNOW) HAVE
ALREADY STATED CATEGORICALLY THAT THEY WILL NOT VOTE TO ADMIT AN
APPLICANT WHO EXPRESSES SUCH VIEWS.  NOR DOES THE OPINION OF THE
ILLINOIS SUPREME COURT INDICATE THAT ANASTAPLO "HOLDS THE KEY TO
ADMISSION IN HIS OWN HANDS."  QUITE THE CONTRARY, THAT COURT'S OPINION
EVIDENCES AN ALMOST INSUPERABLE RELUCTANCE TO UPSET THE FINDINGS OF THE
COMMITTEE.  CERTAINLY, THAT OPINION CONTAINS NOTHING THAT EVEN VAGUELY
RESEMBLES THE SORT OF IMPLICIT PROMISE THAT WOULD JUSTIFY THE BELIEF
ASSERTED BY THE MAJORITY HERE.  AND, FINALLY, I SEE NOTHING IN THE
MAJORITY OPINION OF THIS COURT, NOR IN THE MAJORITY OPINIONS IN THE
COMPANION CASES DECIDED TODAY, THAT WOULD JUSTIFY A BELIEF THAT THIS
COURT WOULD UNLOCK THE DOOR THAT BLOCKS HIS ADMISSION TO THE ILLINOIS
BAR IF ANASTAPLO PRODUCED THE "KEY" AND THE STATE AUTHORITIES REFUSED
TO USE IT. 

THE OPINION OF THE MAJORITY ALREADY RECOGNIZES THAT THERE IS NOT ONE
SCRAP OF EVIDENCE IN THE RECORD BEFORE US "WHICH COULD PROPERLY BE
CONSIDERED AS REFLECTING ADVERSELY UPON HIS (ANASTAPLO'S) CHARACTER OR
REPUTATION OR ON THE SINCERITY OF THE BELIEFS HE ESPOUSED BEFORE THE
COMMITTEE," AND THAT THE COMMITTEE HAD NOT RECEIVED ANY "'INFORMATION
FROM ANY OUTSIDE SOURCE WHICH WOULD CAST ANY DOUBT ON APPLICANT'S
LOYALTY OR WHICH WOULD TEND TO CONNECT HIM IN ANY MANNER WITH ANY
SUBVERSIVE GROUP.'"  THE MAJORITY OPINION EVEN CONCEDES THAT ANASTAPLO
WAS CORRECT IN URGING THAT THE QUESTIONS ASKED BY THE COMMITTEE
IMPINGED UPON THE FREEDOMS OF SPEECH AND ASSOCIATION GUARANTEED BY THE
FIRST AND FOURTEENTH AMENDMENTS.  BUT, THE OPINION THEN GOES ON TO HOLD
THAT ANASTAPLO CAN NONETHELESS BE EXCLUDED FROM THE BAR PURSUANT TO
"THE STATE'S INTEREST IN HAVING LAWYERS WHO ARE DEVOTED TO THE LAW IN
ITS BROADEST SENSE ...  ."  (FN6)  I CANNOT REGARD THAT HOLDING, AS
APPLIED TO A MAN LIKE ANASTAPLO, AS IN ANY WAY JUSTIFIED.  CONSIDER IT,
FOR EXAMPLE, IN THE CONTEXT OF THE FOLLOWING REMARKS OF ANASTAPLO TO
THE COMMITTEE - REMARKS THE SINCERITY OF WHICH THE MAJORITY DOES NOT
DENY: 

"I SPEAK OF A NEED TO REMIND THE BAR OF ITS TRADITIONS AND TO KEEP
ALIVE THE SPIRIT OF DIGNIFIED BUT DETERMINED ADVOCACY AND OPPOSITION. 
THIS IS NOT ONLY FOR THE GOOD OF THE BAR, OF COURSE, BUT ALSO BECAUSE
OF WHAT THE BAR MEANS TO AMERICAN REPUBLICAN GOVERNMENT.  THE BAR WHEN
IT EXERCISES SELF-CONTROL IS IN A PECULIAR POSITION TO MEDIATE BETWEEN
POPULAR PASSIONS AND INFORMED AND PRINCIPLED MEN, THEREBY UPHOLDING
REPUBLICAN GOVERNMENT.  UNLESS THERE IS THIS MEDIATION, INTELLIGENT AND
RESPONSIBLE GOVERNMENT IS UNLIKELY.  THE BAR, FURTHERMORE, IS IN A
PECULIAR POSITION TO APPLY TO OUR DAILY LIVES THE CONSTITUTIONAL
PRINCIPLES WHICH NOURISH FOR THIS COUNTRY ITS INNER LIFE.  UNLESS THERE
IS THIS NOURISHMENT, A JUST AND HUMANE PEOPLE IS IMPOSSIBLE.  THE BAR
IS, IN SHORT, IN A POSITION TO TRAIN AND LEAD BY PRECEPT AND EXAMPLE OF
THE AMERICAN PEOPLE."  (FN7) 

THESE ARE NOT THE WORDS OF A MAN WHO LACKS DEVOTION TO "THE LAW IN
ITS BROADEST SENSE." 

THE MAJORITY, APPARENTLY CONSIDERING THIS FACT IRRELEVANT BECAUSE THE
STATE MIGHT POSSIBLY HAVE AN INTEREST IN LEARNING MORE ABOUT ITS BAR
APPLICANTS, DECIDES THAT ANASTAPLO CAN PROPERLY BE DENIED ADMISSION TO
THE BAR BY PURPORTING TO "BALANCE" THE INTEREST OF THE STATE OF
ILLINOIS IN "HAVING LAWYERS WHO ARE DEVOTED TO THE LAW IN ITS BROADEST
SENSE" AGAINST THE INTEREST OF ANASTAPLO AND THE PUBLIC IN PROTECTING
THE FREEDOMS OF THE FIRST AMENDMENT, CONCLUDING, AS IT USUALLY DOES
WHEN IT ENGAGES IN THIS PROCESS, THAT "ON BALANCE" THE INTEREST OF
ILLINOIS MUST PREVAIL.  (FN8)  IF I HAD EVER DOUBTED THAT THE
"BALANCING TEST" COMES CLOSE TO BEING A DOCTRINE OF GOVERNMENTAL
ABSOLUTION - THAT TO "BALANCE" AN INTEREST IN INDIVIDUAL LIBERTY MEANS
ALMOST INEVITABLY TO DESTROY THAT LIBERTY - THOSE DOUBTS WOULD HAVE
BEEN DISSIPATED BY THIS CASE.  FOR THIS SO-CALLED "BALANCING TEST" -
WHICH, AS APPLIED TO THE FIRST AMENDMENT, MEANS THAT THE FREEDOMS OF
SPEECH, PRESS, ASSEMBLY, RELIGION AND PETITION CAN BE REPRESSED
WHENEVER THERE IS A SUFFICIENT GOVERNMENTAL INTEREST IN DOING SO - HERE
PROVES PITIFULLY AND PATHETICALLY INADEQUATE TO COPE WITH AN INVASION
OF INDIVIDUAL LIBERTY SO PLAINLY UNJUSTIFIED THAT EVEN THE MAJORITY
APPARENTLY FEELS COMPELLED EXPRESSLY TO DISCLAIM "ANY VIEW UPON THE
WISDOM OF THE STATE'S ACTION." 

I, OF COURSE, WHOLEHEARTEDLY AGREE WITH THE STATEMENT OF THE MAJORITY
THAT THIS COURT SHOULD NOT, MERELY ON THE GROUND THAT SUCH ACTION IS
UNWISE, INTERFERE WITH GOVERNMENTAL ACTION THAT IS WITHIN THE
CONSTITUTIONAL POWERS OF THAT GOVERNMENT.  BUT I AM NO LESS CERTAIN
THAT THIS COURT SHOULD NOT PERMIT GOVERNMENTAL ACTION THAT PLAINLY
ABRIDGES CONSTITUTIONALLY PROTECTED RIGHTS OF THE PEOPLE MERELY BECAUSE
A MAJORITY BELIEVES THAT ON "BALANCE" IT IS BETTER, OR "WISER," TO
ABRIDGE THOSE RIGHTS THAN TO LEAVE THEM FREE.  THE INHERENT VICE OF THE
"BALANCING TEST" IS THAT IT PURPORTS TO DO JUST THAT.  IN THE CONTEXT
OF ITS RELIANCE UPON THE "BALANCING TEST," THE COURT'S DISCLAIMER OF
"ANY VIEW UPON THE WISDOM OF THE STATE'S ACTION" HERE THUS SEEMS TO ME
TO BE WHOLLY INCONSISTENT WITH THE ONLY GROUND UPON WHICH IT HAS
DECIDED THIS CASE. 

NOR CAN THE MAJORITY ESCAPE FROM THIS INCONSISTENCY ON THE GROUND
THAT THE "BALANCING TEST" DEALS ONLY WITH THE QUESTION OF THE
IMPORTANCE OF THE EXISTENCE OF GOVERNMENTAL POWER AS A GENERAL MATTER
WITHOUT REGARD TO THE IMPORTANCE OF ITS EXERCISE IN A PARTICULAR CASE. 
FOR IN BARENBLATT V. UNITED STATES THE SAME MAJORITY MADE IT CLEAR THAT
THE "BALANCING TEST" IS TO BE APPLIED TO THE FACTS OF EACH PARTICULAR
CASE:  "WHERE FIRST AMENDMENT RIGHTS ARE ASSERTED TO BAR GOVERNMENTAL
INTERROGATION RESOLUTION OF THE ISSUE ALWAYS INVOLVES A BALANCING BY
THE COURTS OF THE COMPETING PRIVATE AND PUBLIC INTERESTS AT STAKE IN
THE PARTICULAR CIRCUMSTANCES SHOWN."  (FN9)  THUS THE COURT NOT ONLY
"BALANCES" THE RESPECTIVE VALUES OF TWO COMPETING POLICIES AS A GENERAL
MATTER, BUT ALSO "BALANCES" THE WISDOM OF THOSE POLICIES IN "THE
PARTICULAR CIRCUMSTANCES SHOWN."  THUS, THE COURT HAS RESERVED TO
ITSELF THE POWER TO PERMIT OR DENY ABRIDGMENT OF FIRST AMENDMENT
FREEDOMS ACCORDING TO ITS OWN VIEW OF WHETHER REPRESSION OR FREEDOM IS
THE WISER GOVERNMENTAL POLICY UNDER THE CIRCUMSTANCES OF EACH CASE. 

THE EFFECT OF THE COURT'S "BALANCING" HERE IS THAT ANY STATE MAY NOW
REJECT AN APPLICANT FOR ADMISSION TO THE BAR IF HE BELIEVES IN THE
DECLARATION OF INDEPENDENCE AS STRONGLY AS ANASTAPLO AND IF HE IS
WILLING TO SACRIFICE HIS CAREER AND HIS MEANS OF LIVELIHOOD IN DEFENSE
OF THE FREEDOMS OF THE FIRST AMENDMENT.  BUT THE MEN WHO FOUNDED THIS
COUNTRY AND WROTE OUR BILL OF RIGHTS WERE STRANGERS NEITHER TO A BELIEF
IN THE "RIGHT OF REVOLUTION" NOR TO THE URGENCY OF THE NEED TO BE FREE
FROM THE CONTROL OF GOVERNMENT WITH REGARD TO POLITICAL BELIEFS AND
ASSOCIATIONS.  THOMAS JEFFERSON WAS NOT DISCLAIMING A BELIEF IN THE
"RIGHT OF REVOLUTION" WHEN HE WROTE THE DECLARATION OF INDEPENDENCE. 
AND PATRICK HENRY WAS CERTAINLY NOT DISCLAIMING SUCH A BELIEF WHEN HE
DECLARED IN IMPASSIONED WORDS THAT HAVE COME ON DOWN THROUGH THE YEARS:
"GIVE ME LIBERTY OR GIVE ME DEATH."  THIS COUNTRY'S FREEDOM WAS WON BY
MEN WHO, WHETHER THEY BELIEVED IN IT OR NOT, CERTAINLY PRACTICED
REVOLUTION IN THE REVOLUTIONARY WAR. 

SINCE THE BEGINNING OF HISTORY THERE HAVE BEEN GOVERNMENTS THAT HAVE
ENGAGED IN PRACTICES AGAINST THE PEOPLE SO BAD, SO CRUEL, SO UNJUST AND
SO DESTRUCTIVE OF THE INDIVIDUAL DIGNITY OF MEN AND WOMEN THAT THE
"RIGHT OF REVOLUTION" WAS ALL THE PEOPLE HAD LEFT TO FREE THEMSELVES. 
AS SIMPLE ILLUSTRATIONS, ONE GOVERNMENT ALMOST 2,000 YEARS AGO BURNED
CHRISTIANS UPON FIERY CROSSES AND ANOTHER GOVERNMENT, DURING THIS VERY
CENTURY, BURNED JEWS IN CREMATORIES.  I VENTURE THE SUGGESTION THAT
THERE ARE COUNTLESS MULTITUDES IN THIS COUNTRY, AND ALL OVER THE WORLD,
WHO WOULD JOIN ANASTAPLO'S BELIEF IN THE RIGHT OF THE PEOPLE TO RESIST
BY FORCE TYRANNICAL GOVERNMENTS LIKE THOSE. 

IN SAYING WHAT I HAVE, IT IS TO BE BORNE IN MIND THAT ANASTAPLO HAS
NOT INDICATED, EVEN REMOTELY, A BELIEF THAT THIS COUNTRY IS AN
OPPRESSIVE ONE IN WHICH THE "RIGHT OF REVOLUTION" SHOULD BE EXERCISED. 
(FN10)  QUITE THE CONTRARY, THE ENTIRE COURSE OF HIS LIFE, AS DISCLOSED
BY THE RECORD, HAS BEEN ONE OF DEVOTION AND SERVICE TO HIS COUNTRY -
FIRST, IN HIS WILLINGNESS TO DEFEND ITS SECURITY AT THE RISK OF HIS OWN
LIFE IN TIME OF WAR AND, LATER, IN HIS WILLINGNESS TO DEFEND ITS
FREEDOMS AT THE RISK OF HIS PROFESSIONAL CAREER IN TIME OF PEACE.  THE
ONE AND ONLY TIME IN WHICH HE HAS COME INTO CONFLICT WITH THE
GOVERNMENT IS WHEN HE REFUSED TO ANSWER THE QUESTIONS PUT TO HIM BY THE
COMMITTEE ABOUT HIS BELIEFS AND ASSOCIATIONS.  AND I THINK THE RECORD
CLEARLY SHOWS THAT CONFLICT RESULTED, NOT FROM ANY FEAR ON ANASTAPLO'S
PART TO DIVULGE HIS OWN POLITICAL ACTIVITIES, BUT FROM A SINCERE, AND
IN MY JUDGMENT CORRECT, CONVICTION THAT THE PRESERVATION OF THIS
COUNTRY'S FREEDOM DEPENDS UPON ADHERENCE TO OUR BILL OF RIGHTS.  THE
VERY MOST THAT CAN FAIRLY BE SAID AGAINST ANASTAPLO'S POSITION IN THIS
ENTIRE MATTER IS THAT HE TOOK TOO MUCH OF THE RESPONSIBILITY OF
PRESERVING THAT FREEDOM UPON HIMSELF.    THIS CASE ILLUSTRATES TO ME
THE SERIOUS CONSEQUENCES TO THE BAR ITSELF OF NOT AFFORDING THE FULL
PROTECTIONS OF THE FIRST AMENDMENT TO ITS APPLICANTS FOR ADMISSION. 
FOR THIS RECORD SHOWS THAT ANASTAPLO HAS MANY OF THE QUALITIES THAT ARE
NEEDED IN THE AMERICAN BAR.  (FN11)  IT SHOWS, NOT ONLY THAT ANASTAPLO
HAS FOLLOWED A HIGH MORAL, ETHICAL AND PATRIOTIC COURSE IN ALL OF THE
ACTIVITIES OF HIS LIFE, BUT ALSO THAT HE COMBINES THESE MORE COMMON
VIRTUES WITH THE UNCOMMON VIRTUE OF COURAGE TO STAND BY HIS PRINCIPLES
AT ANY COST.  IT IS SUCH MEN AS THESE WHO HAVE MOST GREATLY HONORED THE
PROFESSION OF THE LAW - MEN LIKE MALSHERBES, WHO, AT THE COST OF HIS
OWN LIFE AND THE LIVES OF HIS FAMILY, SPRANG UNAFRAID TO THE DEFENSE OF
LOUIS XVI AGAINST THE FANATICAL LEADERS OF THE REVOLUTIONARY GOVERNMENT
OF FRANCE (FN12) - MEN LIKE CHARLES EVANS HUGHES, SR., LATER MR. CHIEF
JUSTICE HUGHES, WHO STOOD UP FOR THE CONSTITUTIONAL RIGHTS OF
SOCIALISTS TO BE SOCIALISTS AND PUBLIC OFFICIALS DESPITE THE THREATS
AND CLAMOROUS PROTESTS OF SELF-PROCLAIMED SUPERPATRIOTS (FN13) - MEN
LIKE CHARLES EVANS HUGHES, JR., AND JOHN W. DAVIS, WHO, WHILE AGAINST
EVERYTHING FOR WHICH THE COMMUNISTS STOOD, STRONGLY ADVISED THE
CONGRESS IN 1948 THAT IT WOULD BE UNCONSTITUTIONAL TO PASS THE LAW THEN
PROPOSED TO OUTLAW THE COMMUNIST PARTY (FN14) - MEN LIKE LORD ERSKINE,
JAMES OTIS, CLARENCE DARROW, AND THE MULTITUDE OF OTHERS WHO HAVE DARED
TO SPEAK IN DEFENSE OF CAUSES AND CLIENTS WITHOUT REGARD TO PERSONAL
DANGER TO THEMSELVES.  THE LEGAL PROFESSION WILL LOSE MUCH OF ITS
NOBILITY AND ITS GLORY IF IT IS NOT CONSTANTLY REPLENISHED WITH LAWYERS
LIKE THESE.  TO FORCE THE BAR TO BECOME A GROUP OF THOROUGHLY ORTHODOX,
TIME-SERVING, GOVERNMENT-FEARING INDIVIDUALS IS TO HUMILIATE AND
DEGRADE IT. 

BUT THAT IS THE PRESENT TREND, NOT ONLY IN THE LEGAL PROFESSION BUT
IN ALMOST EVERY WALK OF LIFE.  TOO MANY MEN ARE BEING DRIVEN TO BECOME
GOVERNMENT-FEARING AND TIME-SERVING BECAUSE THE GOVERNMENT IS BEING
PERMITTED TO STRIKE OUT AT THOSE WHO ARE FEARLESS ENOUGH TO THINK AS
THEY PLEASE AND SAY WHAT THEY THINK.  (FN15)  THIS TREND MUST BE HALTED
IF WE ARE TO KEEP FAITH WITH THE FOUNDERS OF OUR NATION AND PASS ON TO
FUTURE GENERATIONS OF AMERICANS THE GREAT HERITAGE OF FREEDOM WHICH
THEY SACRIFICED SO MUCH TO LEAVE TO US.  THE CHOICE IS CLEAR TO ME.  IF
WE ARE TO PASS ON THAT GREAT HERITAGE OF FREEDOM, WE MUST RETURN TO THE
ORIGINAL LANGUAGE OF THE BILL OF RIGHTS.  WE MUST NOT BE AFRAID TO BE
FREE. 

FN1  AS THE MAJORITY POINTS OUT, THE RECORD IN THE FIRST SERIES OF
HEARINGS, WHICH CULMINATED IN A DENIAL OF CERTIORARI BY THIS COURT (348
U.S. 946), IS NOT A PART OF THE RECORD IN THIS CASE BUT WE TAKE
JUDICIAL NOTICE OF IT.  NATIONAL FIRE INS. CO. V. THOMPSON, 281 U.S.
331, 336, AND CASES CITED THERE. 

FN2  "WE HOLD THESE TRUTHS TO BE SELF-EVIDENT, THAT ALL MEN ARE
CREATED EQUAL, THAT THEY ARE ENDOWED BY THEIR CREATOR WITH CERTAIN
UNALIENABLE RIGHTS, THAT AMONG THESE ARE LIFE, LIBERTY, AND THE PURSUIT
OF HAPPINESS - THAT TO SECURE THESE RIGHTS, GOVERNMENTS ARE INSTITUTED
AMONG MEN, DERIVING THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED,
THAT WHENEVER ANY FORM OF GOVERNMENT BECOMES DESTRUCTIVE OF THESE ENDS,
IT IS THE RIGHT OF THE PEOPLE TO ALTER OR TO ABOLISH IT, AND TO
INSTITUTE NEW GOVERNMENT, LAYING ITS FOUNDATION ON SUCH PRINCIPLES, AND
ORGANIZING ITS POWERS IN SUCH FORM, AS TO THEM SHALL SEEM MOST LIKELY
TO EFFECT THEIR SAFETY AND HAPPINESS." 

FN3  THE FOLLOWING EXCERPT FROM THE RECORD OF THE FIRST HEARING
INDICATES CLEARLY THE CONNECTION BETWEEN ANASTAPLO'S VIEWS ON THE
"RIGHT OF REVOLUTION" AND THE QUESTIONS SUBSEQUENTLY ASKED HIM ABOUT
HIS "POSSIBLE" POLITICAL ASSOCIATIONS: 

"COMMISSIONER MITCHELL:  WHEN YOU SAY 'BELIEVE IN REVOLUTION,' YOU
DON'T LIMIT THAT REVOLUTION TO AN OVERTHROW OF A PARTICULAR POLITICAL
PARTY OR A POLITICAL GOVERNMENT BY MEANS OF AN ELECTION PROCESS OR
OTHER POLITICAL MEANS? 

"MR. ANASTAPLO:  I MEAN ACTUAL USE OF FORCE. 

"COMMISSIONER MITCHELL:  YOU MEAN TO GO AS FAR AS NECESSARY? 

"MR. ANASTAPLO:  AS FAR AS WASHINGTON DID, FOR INSTANCE. 

"COMMISSIONER MITCHELL:  SO THAT WOULD IT BE FAIR TO SAY THAT YOU
BELIEVE THE END RESULT WOULD JUSTIFY ANY MEANS THAT WERE USED? 

"MR. ANASTAPLO:  NO, THE MEANS PROPORTIONATE TO THE PARTICULAR END IN
SIGHT. 

"COMMISSIONER MITCHELL:  WELL, IS THERE ANY DIFFERENCE FROM YOUR
ANSWER AND MY QUESTION? 

"MR. ANASTAPLO:  DID YOU ASK: 

"COMMISSIONER MITCHELL:  I ASKED YOU WHETHER YOU THOUGHT THAT YOU
BELIEVE THAT IF A CHANGE, OR OVERTHROW OF THE GOVERNMENT WERE
JUSTIFIED, THAT ANY MEANS COULD BE USED TO ACCOMPLISH THAT END. 

"MR. ANASTAPLO:  NOW, LET'S SAY IN THIS POSITIVE CONCRETE SITUATION -
I AM NOT QUITE SURE WHAT IT MEANS IN ABSTRACT. 

"COMMISSIONER MITCHELL:  I WILL ASK YOU IN DETAIL.  YOU BELIEVE THAT
ASSUMING THE GOVERNMENT SHOULD BE OVERTHROWN, IN YOUR OPINION, THAT YOU
AND OTHERS OF LIKE MIND WOULD BE JUSTIFIED IN RAISING A COMPANY OF MEN
WITH MILITARY EQUIPMENT AND PROCEED TO TAKE OVER THE GOVERNMENT OF THE
UNITED STATES, OF THE STATE OF ILLINOIS? 

"BY SHAKING YOUR HEAD DO YOU MEAN YES? 

"MR. ANASTAPLO:  IF YOU GET TO THE POINT WHERE OVERTHROW IS
NECESSARY, THEN OVERTHROW IS JUSTIFIED.  IT JUST MEANS THAT YOU
OVERTHROW THE GOVERNMENT BY FORCE. 

"COMMISSIONER MITCHELL:  AND WOULD THAT ALSO INCLUDE IN YOUR MIND
JUSTIFICATION FOR PUTTING A SPY INTO THE ADMINISTRATIVE DEPARTMENT, ONE
OR ANOTHER OF THE ADMINISTRATIVE DEPARTMENTS OF THE UNITED STATES OR
THE GOVERNMENT OF THE STATE OF ILLINOIS? 

"MR. ANASTAPLO:  IF YOU GOT TO THE POINT YOU THINK THE GOVERNMENT
SHOULD BE OVERTHROWN, I THINK THAT WOULD BE A LEGITIMATE MEANS. 

"COMMISSIONER MITCHELL:  THERE ISN'T ANY DIFFERENCE IN YOUR MIND IN
THE PROPRIETY OF USING A GUN OR USING A SPY? 

"MR. ANASTAPLO: I THINK SPIES HAVE BEEN USED IN QUITE HONORABLE
CAUSES. 

"COMMISSIONER MITCHELL:  YOUR ANSWER IS, YOU DO THINK SO? 

"MR. ANASTAPLO:  YES. 

"COMMISSIONER BAKER:  LET ME ASK YOU A QUESTION.  ARE YOU AWARE OF
THE FACT THAT THE DEPARTMENT OF JUSTICE HAS A LIST OF WHAT ARE
DESCRIBED AS SUBVERSIVE ORGANIZATIONS? 

"MR. ANASTAPLO:  YES. 

"COMMISSIONER BAKER:  HAVE YOU EVER SEE THAT LIST? 

"MR. ANASTAPLO:  YES. 

"COMMISSIONER BAKER:  ARE YOU A MEMBER OF ANY ORGANIZATION THAT IS
LISTED ON THE ATTORNEY GENERAL'S LIST, TO YOUR KNOWLEDGE?  (NO
ANSWER.)  JUST TO KEEP YOU FROM HAVING TO WORK SO HARD MENTALLY ON IT,
WHAT ORGANIZATIONS - GIVE ME ALL THE ORGANIZATIONS YOU ARE AFFILIATED
WITH OR ARE A MEMBER OF.  (NO ANSWER.)  THAT OUGHTN'T TO BE TOO HARD. 

"MR. ANASTAPLO:  DO YOU BELIEVE THAT IS A LEGITIMATE QUESTION? 

"COMMISSIONER BAKER:  YES, I DO.  WE ARE INQUIRING INTO NOT ONLY YOUR
CHARACTER, BUT YOUR FITNESS, UNDER RULE 58.  WE DON'T COMPEL YOU TO
ANSWER IT.  ARE YOU A MEMBER OF THE COMMUNIST PARTY?" 

FN4  AS THE MAJORITY POINTS OUT, THE COMMITTEE EVENTUALLY DID
EXPRESSLY DISAVOW ANY RIGHT TO INSIST UPON AN ANSWER TO THIS QUESTION. 
THIS CAME AT THE END OF A LONG DISAGREEMENT BETWEEN ANASTAPLO AND
CERTAIN MEMBERS OF THE COMMITTEE WITH RESPECT TO THE VITALITY OF AN OLD
ILLINOIS DECISION WHICH INDICATED THAT A BELIEF IN GOD MIGHT BE
NECESSARY IN ORDER TO TAKE AN OATH TO TESTIFY.  THE COMMITTEE'S
ABANDONMENT OF THE POINT CAME ONLY AFTER ANASTAPLO PRODUCED A MORE
RECENT ILLINOIS CASE DISAPPROVING THE EARLIER DECISION.  IT IS
INTERESTING TO NOTE THAT NEITHER OF THE COMMITTEE MEMBERS WHO HAD
EXPRESSED SUCH A STRONG INTEREST WHETHER ANASTAPLO BELIEVES IN GOD
VOTED IN FAVOR OF HIS CERTIFICATION. 

FN5  THE RECORD SHOWS THAT ALTHOUGH ANASTAPLO REPEATEDLY REQUESTED
THAT THE COMMITTEE ALLOW HIM TO SEE ANY REPORTS THAT RESULTED FROM
THESE INDEPENDENT INVESTIGATIONS, THE COMMITTEE, WITHOUT DENYING THAT
SUCH REPORTS EXISTED, REFUSED TO PRODUCE THEM. 

FN6  KONIGSBERG V. STATE BAR OF CALIFORNIA, DECIDED TODAY, ANTE, PP.
36, 52, WHICH THE MAJORITY HERE RELIES UPON AS ALSO HAVING SETTLED THE
ISSUE IN THIS CASE. 

FN7  THESE REMARKS WERE MADE BY ANASTAPLO IN HIS CLOSING ARGUMENT
BEFORE THE COMMITTEE.  HE ALSO INTRODUCED EVIDENCE TO THE COMMITTEE
THAT HE HAD EARLIER EXPRESSED SIMILAR VIEWS IN A BOOK REVIEW PUBLISHED
IN 1954.  SEE ANASTAPLO, REVIEW:  DRINKER, LEGAL ETHICS, 14 LAW.  GUILD
REV. 144. 

FN8  I THINK THE MAJORITY HAS ONCE AGAIN MISAPPLIED ITS OWN
"BALANCING TEST," FOR THE INTEREST IT PURPORTS TO "BALANCE" ARE NO MORE
AT STAKE HERE THAN IN KONIGSBERG.  MOREOVER, IT SEEMS CLEAR TO ME THAT
ILLINOIS, LIKE CALIFORNIA, IS PLACING THE BURDEN OF PROOF UPON
APPLICANTS FOR THE BAR TO PROVE THEY DO NOT ADVOCATE THE OVERTHROW OF
THE GOVERNMENT.  THUS THE DECISION HERE, LIKE THAT IN KONIGSBERG, IS
CONTRARY TO SPEISER V. RANDALL, 357 U.S. 513. 

FN9  360 U.S. 109, 126.  THE MAJORITY IN BARENBLATT THEN PROCEEDED TO
"BALANCE" THOSE INTERESTS ON THE BASIS OF THE PARTICULAR RECORD OF THAT
CASE.  ID., AT 127-134. 

FN10  ANASTAPLO'S BELIEF IN THE "RIGHT OF REVOLUTION," AS DISCLOSED
BY THIS RECORD, IS NO DIFFERENT FROM THAT EXPRESSED BY PROFESSOR
CHAFEE:  "MOST OF US BELIEVE THAT OUR CONSTITUTION MAKES IT POSSIBLE TO
CHANGE ALL BAD LAWS THROUGH POLITICAL ACTION.  WE OUGHT TO DISAGREE
VEHEMENTLY WITH THOSE WHO URGE VIOLENT METHODS, AND WHENEVER NECESSARY
TAKE ENERGETIC STEPS TO PREVENT THEM FROM PUTTING SUCH METHODS INTO
EXECUTION.  THIS IS A VERY DIFFERENT MATTER FROM HOLDING THAT ALL
DISCUSSION OF THE DESIRABILITY OF RESORTING TO VIOLENCE FOR POLITICAL
PURPOSES SHOULD BE RUTHLESSLY STAMPED OUT.  THERE IS NOT ONE AMONG US
WHO WOULD NOT JOIN A REVOLUTION IF THE REASON FOR IT BE MADE STRONG
ENOUGH."  CHAFEE, FREE SPEECH IN THE UNITED STATES 178 (HARVARD
UNIVERSITY PRESS, 1942). 

FN11  FOR A SIMILAR CASE, SEE IN RE SUMMERS, 325 U.S. 561, IN WHICH A
5-4 MAJORITY OF THIS COURT UPHELD AS INFORMAL ORDER OF THE ILLINOIS
SUPREME COURT DENYING BAR ADMISSION TO CLYDE W. SUMMERS ON THE GROUND
THAT HIS RELIGIOUS BELIEFS WERE INCONSISTENT WITH THE ILLINOIS
CONSTITUTION. 

FN12  AT THE TIME OF HIS DECISION TO VOLUNTEER HIS SERVICES IN
DEFENSE OF LOUIS XVI, MALSHERBES, A MAN OF MORE THAN SEVENTY, WAS
APPARENTLY COMPLETELY SAFE FROM THE POST-REVOLUTIONARY BLOOD BATH WHICH
THEN ENVELOPED FRANCE.  FOR, ALTHOUGH ACTIVE IN PUBLIC LIFE PRIOR TO
THE REVOLUTION, HE HAD ALWAYS BEEN A FRIEND OF THE PEOPLE AND, IN ANY
CASE, HE HAD LARGELY PASSED OUT OF THE PUBLIC MIND WITH HIS RETIREMENT
SOME YEARS EARLIER.  WITHIN A YEAR OF HIS UNSUCCESSFUL DEFENSE OF THE
LIFE OF FRANCE'S FORMER KING, HOWEVER, HE, TOGETHER WITH HIS ENTIRE
FAMILY, WAS CONVICTED BY A REVOLUTIONARY TRIBUNAL ON THE VAGUE CHARGE
OF CONSPIRACY AGAINST "THE SAFETY OF THE STATE AND THE UNITY OF THE
REPUBLIC."  MALSHERBES WAS THEN TAKEN TO THE GUILLOTINE WHERE, AFTER
BEING FORCED TO WITNESS THE BEHEADING OF THE OTHER MEMBERS OF HIS
FAMILY, HE PAID WITH HIS LIFE FOR HIS COURAGE AS A LAWYER.  THIS STORY
HAS BEEN INTERESTINGLY TOLD BY JOHN W. DAVIS.  SEE DAVIS, THE LAWYERS
OF LOUIS XVI, IN THE LAWYER, APRIL 1942, P. 5, AT 6-13. 

FN13  THE STORY OF HUGHES' PARTICIPATION IN THE FIGHT AGAINST THE
ACTION OF THE NEW YORK LEGISLATURE IN SUSPENDING FIVE OF ITS MEMBERS IN
1920 ON THE GROUND THAT THEY WERE SOCIALISTS IS TOLD IN JOHN LORD
O'BRIAN, LOYALTY TESTS AND GUILT BY ASSOCIATION, 61 HARV.  L. REV. 592,
593-594. 

FN14  SEE BARENBLATT V. UNITED STATES, 360 U.S. 109, 147-148
(DISSENTING OPINION). 

FN15  SEE, E.G., BARSKY V. BOARD OF REGENTS, 347 U.S. 442; UPHAUS V.
WYMAN, 360 U.S. 72; BARENBLATT V. UNITED STATES, 360 U.S. 109; UPHAUS
V. WYMAN, 364 U.S. 388; WILKINSON V. UNITED STATES, 365 U.S. 399;
BRADEN V. UNITED STATES, 365 U.S. 431; KONIGSBERG V. STATE BAR OF
CALIFORNIA, SUPRA. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

I JOIN MR. JUSTICE BLACK'S DISSENT.  I ADD ONLY THAT I THINK THE
JUDGMENT MUST ALSO BE REVERSED ON THE AUTHORITY OF SPEISER V. RANDALL,
357 U.S. 513, FOR THE REASONS EXPRESSED IN MY DISSENT IN KONIGSBERG V.
STATE BAR OF CALIFORNIA, ANTE, P. 80. 
..END :






COHEN V. HURLEY 366 U.S. 117 


NO. 84.  ARGUED DECEMBER 14-15, 1960 - DECIDED APRIL 24, 1961 - 7 N.Y.2D
488, 166 N.E.2D 672, AFFIRMED. 


DURING A JUDICIAL INQUIRY IN A STATE COURT INTO ALLEGED PROFESSIONAL
MISCONDUCT OF LAWYERS, PETITIONER, A LAWYER, WAS CALLED TO TESTIFY AND
PRODUCE RECORDS BEFORE THE JUDGE IN CHARGE OF THE INQUIRY.  RELYING
PRIMARILY ON HIS STATE PRIVILEGE AGAINST SELF-INCRIMINATION, HE REFUSED
TO PRODUCE THE REQUIRED RECORDS AND TO ANSWER QUESTIONS RELATING TO HIS
ALLEGED PROFESSIONAL MISCONDUCT, AND HE PERSISTED IN SUCH REFUSAL AFTER
BEING WARNED THAT IT MIGHT RESULT IN "SERIOUS CONSEQUENCES" IN THE FORM
OF AN EXERCISE OF THE COURT'S DISCIPLINARY POWER OVER ATTORNEYS
PRACTICING BEFORE IT.  SOLELY ON THE GROUND OF SUCH REFUSAL TO
COOPERATE IN THE COURT'S EFFORTS TO EXPOSE UNETHICAL PRACTICES AND
WITHOUT ANY INDEPENDENT PROOF OF WRONGDOING ON HIS PART, PETITIONER WAS
DISBARRED BY THE STATE COURT.  HELD:  SUCH DISCIPLINARY ACTION DID NOT
VIOLATE PETITIONER'S RIGHTS UNDER THE FOURTEENTH AMENDMENT.  PP. 118
131. 

(A)  DISBARMENT OF PETITIONER SOLELY BECAUSE OF HIS REFUSAL TO
COOPERATE IN THE COURT'S EFFORTS TO EXPOSE UNETHICAL CONDUCT, AND
WITHOUT ANY INDEPENDENT EVIDENCE OF WRONGDOING ON HIS PART, WAS NOT
ARBITRARY OR IRRATIONAL, AND IT DID NOT DEPRIVE HIM OF LIBERTY WITHOUT
DUE PROCESS OF LAW CONTRARY TO THE FOURTEENTH AMENDMENT.  KONIGSBERG V.
STATE BAR, ANTE, P. 36; IN RE ANASTAPLO, ANTE, P. 82.  PP. 123-125. 

(B)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT
PETITIONER'S REFUSAL WAS BASED ON A BONA FIDE ASSERTION OF HIS STATE
PRIVILEGE AGAINST SELF-INCRIMINATION.  PP. 125-127. 

(C)  THE FOURTEENTH AMENDMENT DID NOT GIVE PETITIONER A FEDERAL
CONSTITUTIONAL RIGHT NOT TO BE REQUIRED TO INCRIMINATE HIMSELF IN THE
STATE PROCEEDINGS.  PP. 127-129. 

(D)  THE STATE'S ACTION DOES NOT UNCONSTITUTIONALLY DISCRIMINATE
AGAINST LAWYERS AS A CLASS.  PP. 127-131. 

COHEN V. HURLEY. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON TO DECIDE WHETHER THE STATE OF NEW YORK MAY,
CONSISTENTLY WITH THE FOURTEENTH AMENDMENT, DISBAR AN ATTORNEY WHO,
RELYING ON HIS STATE PRIVILEGE AGAINST SELF-INCRIMINATION, HAS REFUSED
TO ANSWER MATERIAL QUESTIONS OF A DULY AUTHORIZED INVESTIGATING
AUTHORITY RELATING TO ALLEGED PROFESSIONAL MISCONDUCT.  (FN1) 

THE ISSUE ARISES IN THE CONTEXT OF THE SO-CALLED BROOKLYN "AMBULANCE
CHASING" JUDICIAL INQUIRY WHICH THIS COURT HAD BEFORE IT IN ANONYMOUS
V. BAKER, 360 U.S. 287.  THE ORIGINS, AUTHORITY, AND NATURE OF THE
INQUIRY HAVE ALREADY BEEN SUFFICIENTLY DESCRIBED IN OUR OPINION IN THAT
CASE.  THERE NEED ONLY BE ADDED HERE THAT THE PURPOSE OF THE INQUIRY,
AS REFLECTED IN THE ESTABLISHING ORDER OF THE APPELLATE DIVISION OF THE
SUPREME COURT OF THE STATE OF NEW YORK, SECOND DEPARTMENT, WAS TWOFOLD:
"TO EXPOSE ALL THE EVIL PRACTICES (INVOLVED IN THE IMPROPER
SOLICITATION AND HANDLING OF CONTINGENT-RETAINERS IN PERSONAL INJURY
CASES) WITH A VIEW TO ENABLING THIS COURT TO ADOPT APPROPRIATE MEASURES
TO ELIMINATE THEM AND TO DISCIPLINE THOSE ATTORNEYS FOUND TO HAVE
ENGAGED IN THEM."  9 APP. DIV. 2D 436, 437, 195 N.Y.S.2D 990, 993. 

FOR SOME YEARS THE SECOND DEPARTMENT HAS HAD A COURT RULE "WHICH
REQUIRES THAT AN ATTORNEY WHO MAKES CONTINGENT-FEE AGREEMENTS FOR HIS
SERVICES IN PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, AND
CERTAIN OTHER KINDS OF CASES, MUST FILE SUCH AGREEMENTS WITH THE
APPELLATE DIVISION AND, IF HE ENTERS INTO FIVE OR MORE SUCH AGREEMENTS
IN ANY YEAR, MUST GIVE TO THE COURT IN WRITING CERTAIN PARTICULARS AS
TO HOW HE CAME TO BE RETAINED" (CALLED "STATEMENTS OF RETAINER").  7
N.Y.2D 488, 493, 166 N.E.2D 672, 674; SEE RULE 3 OF THE SPECIAL RULES
REGULATING THE CONDUCT OF ATTORNEYS AND COUNSELORS AT LAW IN THE SECOND
JUDICIAL DEPARTMENT, CLEVENGER'S PRACTICE MANUAL, P. 21-19 (1959). 
PRINCIPALLY AS A RESULT OF THE LARGE NUMBER OF STATEMENTS OF RETAINER
FILED BY HIM DURING RECENT YEARS, PETITIONER WAS CALLED TO TESTIFY AND
PRODUCE RECORDS BEFORE THE JUSTICE IN CHARGE OF THE INQUIRY.  (FN2)
RELYING ON HIS CONCEDEDLY AVAILABLE STATE PRIVILEGE AGAINST SELF
INCRIMINATION, PETITIONER REFUSED TO PRODUCE THE RECORDS CALLED FOR AND
TO ANSWER SOME SIXTY OTHER QUESTIONS.  THE SUBJECT MATTER OF SUCH
QUESTIONS WAS SUMMARIZED BY THE NEW YORK COURT OF APPEALS IN ITS
OPINION IN THIS CASE (7 N.Y.2D 488, 494, 166 N.E.2D 672, 674-675), AS
FOLLOWS: 

"  ...  THOSE UNANSWERED QUESTIONS RELATED TO THE IDENTITY OF HIS LAW
OFFICE PARTNERS, ASSOCIATES AND EMPLOYEES, TO HIS POSSESSION OF THE
RECORDS OF THE CASES DESCRIBED IN HIS STATEMENTS OF RETAINER, TO ANY
DESTRUCTION OF SUCH RECORDS, TO HIS BANK ACCOUNTS, TO HIS PAYING POLICE
OFFICERS OR OTHERS FOR REFERRING CLAIMANTS TO HIM, TO HIS PAYING
INSURANCE COMPANY EMPLOYEES FOR REFERRING CASES TO HIM, AND TO HIS
PROMISING TO PAY TO ANY 'LAY PERSON' 10% OF RECOVERIES OR SETTLEMENTS. 
HE WAS ASKED - AND REFUSED TO ANSWER - AS TO WHETHER HE HAD MADE OR
AGREED TO MAKE SUCH PAYMENTS TO ANY OF SEVERAL NAMED PERSONS, AS TO
WHETHER HE HAD HIRED OR PAID NONLAWYERS TO ARRANGE SETTLEMENTS OF HIS
CASES WITH INSURANCE COMPANIES AND AS TO WHETHER HIS PARTNER OR
ASSOCIATE ROTHENBERG HAD BEEN INDICTED FOR AND HAD PLEADED GUILTY TO
VIOLATIONS OF SECTIONS 270-A AND 270-D OF THE PENAL LAW WHICH FORBID
THE SOLICITATION OF LEGAL BUSINESS OR THE EMPLOYMENT BY LAWYERS OF SUCH
SOLICITORS  ...  ." 

AFTER PETITIONER HAD REFUSED TO ANSWER THESE QUESTIONS, COUNSEL FOR
THE INQUIRY WARNED HIM THAT "SERIOUS CONSEQUENCES," IN THE FORM OF AN
EXERCISE OF THE APPELLATE DIVISION'S DISCIPLINARY POWER OVER ATTORNEYS
PRACTICING BEFORE IT, (FN3) MIGHT FLOW FROM HIS REFUSAL TO RESPOND,
EVEN THOUGH THAT REFUSAL WAS BASED ON A CLAIM OF PRIVILEGE.  AS THE
BASIS FOR HIS WARNING COUNSEL REFERRED TO VARIOUS PROVISIONS OF THE
CANONS OF PROFESSIONAL ETHICS (FN4) AND OF THE NEW YORK PENAL LAW. 
(FN5) PETITIONER WAS THEN GIVEN A FURTHER OPPORTUNITY TO RESPOND TO THE
UNANSWERED QUESTIONS, BUT HE DECLINED, PREFERRING TO RELY UPON HIS
CLAIM OF PRIVILEGE. 

THEREAFTER THE JUSTICE IN CHARGE OF THE INQUIRY RECOMMENDED TO THE
APPELLATE DIVISION THAT PETITIONER BE DISCIPLINED.  THE APPELLATE
DIVISION ORDERED RESPONDENT HURLEY TO FILE A PETITION FOR DISCIPLINARY
ACTION.  THE ENSUING PETITION SOUGHT PETITIONER'S DISBARMENT, ALLEGING
AS GROUNDS THEREFOR: 

"THE REFUSAL OF  ...  ALBERT MARTIN COHEN, TO PRODUCE THE RECORDS
(CALLED FOR BY THE INQUIRY), AND HIS REFUSAL TO ANSWER THE QUESTIONS
(SUMMARIZED ABOVE), ARE IN DISREGARD AND IN VIOLATION OF THE INHERENT
DUTY AND OBLIGATION OF RESPONDENT AS A MEMBER OF THE LEGAL PROFESSION
IN THAT, AMONG OTHER THINGS, SUCH REFUSALS ARE CONTRARY TO THE
STANDARDS OF CANDOR AND FRANKNESS THAT ARE REQUIRED AND EXPECTED OF A
LAWYER TO THE COURT; SUCH REFUSALS ARE IN DEFIANCE OF AND FLAUNT THE
AUTHORITY OF THE COURT TO INQUIRE INTO AND ELICIT INFORMATION WITHIN
RESPONDENT'S KNOWLEDGE RELATING TO HIS CONDUCT AND PRACTICES AS A
LAWYER; BY HIS REFUSAL TO ANSWER THE AFORESAID QUESTIONS THE RESPONDENT
HINDERED AND IMPEDED THE JUDICIAL INQUIRY THAT WAS ORDERED BY THIS
COURT; BY HIS REFUSALS RESPONDENT WITHHELD VITAL INFORMATION BEARING
UPON HIS CONDUCT, CHARACTER, FITNESS, INTEGRITY, TRUST AND RELIABILITY
AS A MEMBER OF THE LEGAL PROFESSION  ...  ." 

THE APPELLATE DIVISION ORDERED PETITIONER DISBARRED, SAYING (9 APP.
DIV. 2D, AT 448-449, 195 N.Y.S.2D, AT 1003): 

"TO AVOID ANY POSSIBLE DOUBT AS TO OUR POSITION, WE STATE AGAIN THAT
THE BASIS FOR ANY DISCIPLINARY ACTION BY THIS COURT IS, NOT THE FACT
THAT RESPONDENT HAS INVOKED HIS CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION, BUT RATHER THE FACT THAT HE HAS DELIBERATELY REFUSED TO
CO-OPERATE WITH THE COURT IN ITS EFFORTS TO EXPOSE UNETHICAL PRACTICES
AND IN ITS EFFORTS TO DETERMINE INCIDENTALLY WHETHER HE HAD COMMITTED
ANY ACTS OF PROFESSIONAL MISCONDUCT WHICH DESTROYED THE CHARACTER AND
FITNESS REQUIRED OF HIM AS A CONDITION TO HIS RETENTION OF THE
PRIVILEGE OF REMAINING A MEMBER OF THE BAR." 

THE NEW YORK COURT OF APPEALS AFFIRMED, JUDGE FULD DISSENTING.  (FN6)
7 N.Y.2D 488, 166 N.E.2D 672.  WE GRANTED CERTIORARI BECAUSE THE CASE
PRESENTED STILL ANOTHER VARIANT OF THE ISSUES ARISING IN THE KONIGSBERG
AND ANASTAPLO CASES, ANTE, PP. 36, 82. 

STARTING FROM THE UNDENIABLY CORRECT PREMISE THAT A STATE MAY NOT
ARBITRARILY REFUSE A PERSON PERMISSION TO PRACTICE LAW, KONIGSBERG V.
STATE BAR OF CALIFORNIA, 353 U.S. 252; SCHWARE V. BOARD OF BAR
EXAMINERS, 353 U.S. 232, PETITIONER'S CLAIM THAT NEW YORK'S DISBARMENT
OF HIM WAS CAPRICIOUS RESTS ESSENTIALLY ON TWO PROPOSITIONS:  (1) THAT
THE FOURTEENTH AMENDMENT FORBADE THE STATE FROM MAKING HIS REFUSAL TO
ANSWER THE INQUIRY'S QUESTIONS A PER SE GROUND FOR DISBARMENT; (2) THAT
IN ANY EVENT SUCH A GROUND IS NOT PERMISSIBLE WHEN REFUSAL TO ANSWER
RESTS ON A BONA FIDE CLAIM OF A PRIVILEGE AGAINST SELF-INCRIMINATION. 

    I. 

THE FIRST CONTENTION MUST BE REJECTED LARGELY IN LIGHT OF OUR TODAY'S
OPINIONS IN THE KONIGSBERG AND ANASTAPLO CASES, ANTE, PP. 36, 82.  THE
FACT THAT SUCH REFUSAL WAS HERE MADE A GROUND FOR DISBARMENT, RATHER
THAN FOR DENIAL OF ADMISSION TO THE BAR, AS IN KONIGSBERG AND
ANASTAPLO, IS NOT OF CONSTITUTIONAL MOMENT.  AND THERE IS NO CLAIM HERE
EITHER THAT THE UNANSWERED QUESTIONS WERE NOT MATERIAL OR THAT
PETITIONER WAS NOT DULY WARNED OF THE CONSEQUENCES OF HIS REFUSAL TO
ANSWER.  BY THE SAME TOKEN THOSE CASES ALSO DISPOSE OF PETITIONER'S
BASICALLY SIMILAR CONTENTION THAT THE STATE COULD PROCEED AGAINST HIM
ONLY BY WAY OF INDEPENDENT EVIDENCE OF WRONGDOING ON HIS PART. 

WE DO NOT THINK IT CAN BE SERIOUSLY CONTENDED THAT NEW YORK'S
JUDICIAL INQUIRY WAS SO DEVOID OF RATIONAL JUSTIFICATION THAT THE MERE
ACT OF COMPELLING EVEN UNPRIVILEGED TESTIMONY WAS A DEPRIVATION OF
PETITIONER'S LIBERTY WITHOUT DUE PROCESS.  HISTORY AND POLICY COMBINE
TO ESTABLISH THE PRESENCE OF A SUBSTANTIAL STATE INTEREST IN CONDUCTING
AN INVESTIGATION OF THIS KIND.  THAT INTEREST IS NOTHING LESS THAN THE
EXERTION OF DISCIPLINARY POWERS WHICH ENGLISH AND AMERICAN COURTS (THE
FORMER PRIMARILY THROUGH THE INNS OF COURT) HAVE FOR CENTURIES
POSSESSED OVER MEMBERS OF THE BAR, INCIDENT TO THEIR BROADER
RESPONSIBILITY FOR KEEPING THE ADMINISTRATION OF JUSTICE AND THE
STANDARDS OF PROFESSIONAL CONDUCT UNSULLIED.  NOT ONLY IS THE PRACTICE
OF SUCH JUDICIAL INVESTIGATIONS LONG-ESTABLISHED, BUT THE SUBJECT
MATTER OF THE PRESENT INVESTIGATION DOES NOT LACK A RATIONAL BASIS.  IT
IS NO LESS TRUE THAN TRITE THAT LAWYERS MUST OPERATE IN A THREE-FOLD
CAPACITY, AS SELF-EMPLOYED BUSINESSMEN AS IT WERE, AS TRUSTED AGENTS OF
THEIR CLIENTS, AND AS ASSISTANTS TO THE COURT IN SEARCH OF A JUST
SOLUTION TO DISPUTES.  IT IS CERTAINLY NOT BEYOND THE REALM OF
PERMISSIBLE STATE CONCERNS TO CONCLUDE THAT TOO MUCH ATTENTION TO THE
BUSINESS OF GETTING CLIENTS MAY BE INCOMPATIBLE WITH A SUFFICIENT
DEVOTION TO DUTIES WHICH A LAWYER OWES TO THE COURT, OR THAT THE
"PAYMENT OF AWARDS TO PERSONS BRINGING IN LEGAL BUSINESS" IS
INCONSISTENT WITH THE PERSONALLY DISINTERESTED POSITION A LAWYER SHOULD
MAINTAIN. 

FINALLY, IT CANNOT BY ANY STRETCH BE CONSIDERED THAT NEW YORK ACTED
ARBITRARILY OR IRRATIONALLY IN APPLYING THE DISCIPLINARY SANCTION OF
DISBARMENT TO THE PETITIONER.  WHAT MR. JUSTICE CARDOZO (THEN CHIEF
JUDGE OF THE NEW YORK COURT OF APPEALS) SAID IN THE KARLIN CASE IS
ENOUGH TO PUT AN END TO THAT CONTENTION: 

"IF A BARRISTER WAS SUSPECTED OF MISCONDUCT, THE BENCHERS OF HIS INN
MIGHT INQUIRE OF HIS BEHAVIOR.  WE CAN HARDLY DOUBT THAT REFUSAL TO
ANSWER WOULD HAVE BEEN FOLLOWED BY EXPULSION.  THERE WAS THUS LITTLE
OCCASION FOR CONTROVERSIES AS TO DISCIPLINE TO BE BROUGHT BEFORE THE
JUDGES UNLESS THE BENCHERS FAILED IN THE PERFORMANCE OF THEIR DUTIES. 
IN CASE THEY DID FAIL, A SUPERVISORY POWER WAS EVER IN RESERVE.  THE
INNS  ...  WERE SUBJECT  ...  TO VISITATION BY THE JUDGES  ...  .
SHORT SHRIFT WOULD THERE HAVE BEEN FOR THE BARRISTER WHO REFUSED TO
MAKE ANSWER AS TO HIS PROFESSIONAL BEHAVIOR IN DEFIANCE OF THE
VISITORS."  248 N.Y., AT 472-473, 162 N.E., AT 490. 

IF MORE THAN LONG-LIVED PRACTICE IS THOUGHT NECESSARY TO JUSTIFY SUCH
A SANCTION, IT IS TO BE FOUND IN THE FACT THAT THE DENIAL OF CONTINUED
ACCESS TO A POSITION THAT CAN BE MISUSED IS PERMISSIBLE TO ASSURE THAT
THE POSITION MAY NOT BE HELD WITHOUT OBSERVANCE OF THE OBLIGATIONS
LAWFULLY IMPOSED UPON IT.  REVOCATION OF A LICENSE FOR FAILURE TO
FULFILL SIMILAR OBLIGATIONS OF A LICENSEE IS THE VERY SANCTION WHICH
THE FEDERAL GOVERNMENT HAS ADOPTED IN A NUMBER OF SITUATIONS.  SEE 12
U.S.C. SEC. 481, 47 U.S.C. SECS. 308(B), 312(A)(4). 

                                       II. 

A DIFFERENT CONSTITUTIONAL CONCLUSION DOES NOT RESULT FROM THE FACT
THAT PETITIONER'S REFUSAL WAS BASED ON A GOOD-FAITH ASSERTION OF HIS
STATE PRIVILEGE AGAINST SELF-INCRIMINATION.  BECAUSE, FROM A FEDERAL
STANDPOINT, THERE CAN BE NO DOUBT THAT A STATE HAS GREAT LEEWAY IN
DEFINING THE REACH OF ITS OWN PRIVILEGE AGAINST SELF-INCRIMINATION, WE
REGARD THE SCOPE OF FEDERAL REVIEW HERE AS BEING LIMITED TO THE
QUESTION WHETHER ARBITRARY OR DISCRIMINATORY STATE ACTION CAN BE FOUND
IN THE CONSEQUENCES NEW YORK HAS ATTACHED TO THE EXERCISE OF THE
PRIVILEGE IN THIS INSTANCE. 

BASIC TO CONSIDERATION OF THIS ASPECT OF PETITIONER'S CASE IS THE
FACT THAT THE STATE'S DISBARMENT ORDER WAS PREDICTED NOT UPON ANY
UNFAVORABLE INFERENCE WHICH IT DREW FROM PETITIONER'S ASSERTION OF THE
PRIVILEGE, CF. SLOCHOWER V. BOARD OF HIGHER EDUCATION, 350 U.S. 551,
557-558; GRUNEWALD V. UNITED STATES, 353 U.S. 391, 421, NOR UPON ANY
PURPOSE TO PENALIZE HIM FOR ITS EXERCISE, BUT SOLELY UPON HIS REFUSAL
TO DISCHARGE OBLIGATIONS WHICH, AS A LAWYER, HE OWED TO THE COURT.  THE
COURT OF APPEALS STATED: 

"OF COURSE, PETITIONER HAD THE RIGHT TO ASSERT THE PRIVILEGE AND TO
WITHHOLD THE CRIMINATING ANSWERS.  THAT RIGHT WAS HIS AS IT WOULD BE
THE RIGHT OF ANY CITIZEN AND IT WAS NOT DENIED TO HIM.  HE COULD NOT BE
FORCED TO WAIVE HIS IMMUNITY  ...  .  BUT THE QUESTION STILL REMAINED
AS TO WHETHER HE HAD BROKEN THE 'CONDITION' ON WHICH DEPENDED THE
'PRIVILEGE' OF MEMBERSHIP IN THE BAR  ...  . 'WHENEVER THE CONDITION IS
BROKEN, THE PRIVILEGE IS LOST' (CITING MATTER OF ROUSS, 221 N.Y. 81, 84
85, 116 N.E. 782, 783, CARDOZO, J.).  APPELLANT AS A CITIZEN COULD NOT
BE DENIED ANY OF THE COMMON RIGHTS OF CITIZENS.  BUT HE STOOD BEFORE
THE INQUIRY AND BEFORE THE APPELLATE DIVISION IN ANOTHER QUITE
DIFFERENT CAPACITY, ALSO.  AS A LAWYER HE WAS 'AN OFFICER OF THE COURT,
AND, LIKE THE COURT ITSELF, AN INSTRUMENT  ... OF JUSTICE' (CITING
PEOPLE EX REL.  KARLIN V. CULKIN, 248 N.Y. 465, 470-471, 162 N.E. 487,
489, CARDOZO, J.), WITH THE INEVITABLE CONSEQUENCES THAT THE COURT
WHICH WAS CHARGED WITH CONTROL AND DISCIPLINE OF ITS OFFICERS HAD ITS
OWN RIGHT TO DEMAND HIS FULL, HONEST AND LOYAL CO-OPERATION IN ITS
INVESTIGATIONS AND TO STRIKE HIS NAME FROM THE ROLLS IF HE REFUSED TO
CO-OPERATE.  SUCH 'CO-OPERATION' IS A 'PHRASE WITHOUT REALITY' AS CHIEF
JUDGE CARDOZO WROTE IN PEOPLE EX REL. KARLIN V. CULKIN (SUPRA, P. 471)
IF A LAWYER AFTER REFUSING TO ANSWER PERTINENT QUESTIONS ABOUT HIS
PROFESSIONAL CONDUCT CAN RETAIN HIS STATUS AND PRIVILEGES AS AN OFFICER
OF THE COURT."  7 N.Y.2D, AT 495, 166 N.E.2D, AT 675.    WE DO NOT
THINK THAT IT CAN BE SERIOUSLY CONTENDED THAT THE UNAVAILABILITY OF THE
STATE PRIVILEGE IN JUDICIAL INQUIRIES OF THIS TYPE AMOUNTS TO A
DISTINCTION FROM CRIMINAL PROSECUTIONS SO IRRATIONAL AS TO SUGGEST
EITHER A DENIAL OF DUE PROCESS OR A PURPOSEFUL DISCRIMINATION OF THE
KIND WHICH VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  A STATE MAY RATIONALLY CONCLUDE THAT THE CONSEQUENCE OF
DISBARMENT IS LESS DRASTIC THAN THAT OF A PRISON TERM FOR CONTEMPT,
ALBEIT ARGUMENTS TO THE CONTRARY CAN BE MADE AS WELL.  IT MAY ALSO
RATIONALLY CONCLUDE THAT PROCEDURES RESULTING IN GREATER PREVENTIVE
CERTAINTY ARE WARRANTED WHEN WHAT IS INVOLVED IS THE RIGHT TO CONTINUE
TO OCCUPY A POSITION AFFORDING SPECIAL OPPORTUNITIES FOR DELETERIOUS
CONDUCT - OPPORTUNITIES, INDEED, CREATED BY THE STATE'S ORIGINAL
CERTIFICATION OF THE PETITIONER'S MERIT.  IN THIS REGARD ALL THAT NEW
YORK HAS IN EFFECT HELD IS THAT PETITIONER, BY RESORT TO A PRIVILEGE
AGAINST SELF-INCRIMINATION, CAN NO MORE CLAIM A RIGHT NOT TO BE
DISBARRED FOR HIS REFUSAL TO ANSWER WITH RESPECT TO MATTERS WITHIN THE
COMPETENCE OF THE COURT'S SUPERVISORY POWERS OVER MEMBERS OF THE BAR,
THAN COULD A TRUSTEE CLAIM A RIGHT NOT TO BE REMOVED FROM OFFICE FOR
FAILURE TO RENDER ACCOUNTS WHICH MIGHT INCRIMINATE HIM.  FINALLY, WHERE
ILLEGAL OR SHADY PRACTICES ON THE PART OF SOME LAWYERS ARE SUSPECTED,
NEW YORK COULD RATIONALLY CONCLUDE THAT THE PROFESSION ITSELF NEED NOT
BE SUBJECTED TO THE DISRESPECT WHICH WOULD RESULT FROM THE PUBLICITY,
DELAY, AND POSSIBLE INEFFECTIVENESS IN THEIR EXPOSURE AND ERADICATION
THAT MIGHT FOLLOW COULD MISCREANTS ONLY BE DEALT WITH THROUGH ORDINARY
INVESTIGATORY AND PROSECUTORIAL PROCESSES.  "IF THE HOUSE IS TO BE
CLEANED, IT IS FOR THOSE WHO OCCUPY AND GOVERN IT, RATHER THAN FOR
STRANGERS, TO DO THE NOISOME WORK."  PEOPLE EX REL. KARLIN V. CULKIN,
248 N.Y. 465, 480, 162 N.E. 487, 493 (CARDOZO, J.). 

THESE BASES FOR AFFORDING A PROCEDURE IN SUCH JUDICIAL INQUIRIES
DIFFERENT FROM THAT IN CRIMINAL PROSECUTIONS ARE MORE THAN ENOUGH TO
MAKE WHOLLY UNTENABLE A CONTENTION THAT THERE HAS HERE BEEN A DENIAL
EITHER OF DUE PROCESS OR OF EQUAL PROTECTION. 

ALTHOUGH WHAT HAS ALREADY BEEN SAID DISPOSES OF THIS CASE, WE TAKE
NOTE, IN CONCLUSION, OF TWO FURTHER CONSIDERATIONS.  FIRST, IT IS
SUGGESTED THAT THE FOURTEENTH AMENDMENT GAVE PETITIONER A FEDERAL
CONSTITUTIONAL RIGHT NOT TO BE REQUIRED TO INCRIMINATE HIMSELF IN THE
STATE PROCEEDINGS (ALTHOUGH, APART FROM HIS CLAIM OF FUNDAMENTAL
UNFAIRNESS, THE PETITIONER HIMSELF DOES NOT SO CONTEND, NOTE 1,
SUPRA).  THAT PROPOSITION, HOWEVER, WAS EXPLICITLY REJECTED BY THIS
COURT, UPON THE FULLEST CONSIDERATION, MORE THAN FIFTY YEARS AGO,
TWINING V. NEW JERSEY, 211 U.S. 78, (FN7) AND SUCH HAS BEEN THE
POSITION OF THE COURT EVER SINCE.  (FN8)  SEE SNYDER V. MASSACHUSETTS,
291 U.S. 97; (FN9) BROWN V. MISSISSIPPI, 297 U.S. 278, 285; PALKO V.
CONNECTICUT, 302 U.S. 319, 323-324; ADAMSON V. CALIFORNIA, 332 U.S. 46;
(FN10) KNAPP V. SCHWEITZER, 357 U.S. 371, 374.  THIS IS NOT TO SAY, OF
COURSE, THAT STATES HAVE FREE REIN EITHER IN THE CHOICE OF MEANS OF
FORCING INCRIMINATORY TESTIMONY, OR IN THE DRAWING OF INFERENCES FROM A
REFUSAL TO TESTIFY ON GROUNDS OF POSSIBLE SELF-INCRIMINATION, NO MATTER
HOW OBJECTIONABLE OR IRRATIONAL.  BUT THESE DECISIONS DO ESTABLISH, AT
THE VERY LEAST, THAT TO MAKE OUT A VIOLATION OF THE FOURTEENTH
AMENDMENT, SOMETHING SUBSTANTIALLY MORE MUST BE SHOWN THAN THAT THE
STATE PROCEDURES INVOLVED HAVE A TENDENCY TO DISCOURAGE THE WITHHOLDING
OF SELF-INCRIMINATORY TESTIMONY. 

IT IS, HOWEVER, SUGGESTED THAT SUCH ADDITIONAL FACTORS ARE TO BE
FOUND IN NEW YORK'S ASSERTION OF A POWER TO GRANT A STATE PRIVILEGE
AGAINST SELF-INCRIMINATION WITHOUT INCLUDING WITHIN ITS SWEEP
PROTECTION FROM DISBARMENT OF A LAWYER WHO ASSERTS THIS PRIVILEGE
DURING A JUDICIAL INQUIRY INTO HIS PROFESSIONAL CONDUCT.  IT IS SAID
THAT THIS GIVES RISE TO A PERNICIOUS DOCTRINE WHEREBY LAWYERS "MAY BE
SEPARATED INTO A SPECIAL GROUP UPON WHICH SPECIAL BURDENS CAN BE
IMPOSED EVEN THOUGH SUCH BURDENS ARE NOT AND CANNOT BE PLACED UPON
OTHER GROUPS." 

THIS ARGUMENT WHOLLY MISCONCEIVES THE ISSUE AND WHAT THE COURT HAS
HELD RESPECTING IT.  THE ISSUE IS NOT, OF COURSE, WHETHER LAWYERS ARE
ENTITLED TO DUE PROCESS OF LAW IN MATTERS OF THIS KIND, BUT, RATHER,
WHAT PROCESS IS CONSTITUTIONALLY DUE THEM IN SUCH CIRCUMSTANCES.  WE DO
NOT HOLD THAT LAWYERS, BECAUSE OF THEIR SPECIAL STATUS IN SOCIETY, CAN
THEREFORE BE DEPRIVED OF CONSTITUTIONAL RIGHTS ASSURED TO OTHERS, BUT
ONLY, AS IN ALL CASES OF THIS KIND, THAT WHAT PROCEDURES ARE FAIR, WHAT
STATE PROCESS IS CONSTITUTIONALLY DUE, WHAT DISTINCTIONS ARE CONSISTENT
WITH THE RIGHT TO EQUAL PROTECTION, ALL DEPEND UPON THE PARTICULAR
SITUATION PRESENTED, AND THAT HISTORY IS SURELY RELEVANT TO THESE
INQUIRIES.  (FN11)  STATE BANKS MAY BE SUBJECTED TO PERIODIC
EXAMINATIONS THAT WOULD VIOLATE THE RIGHTS OF SOME OTHER KINDS OF
BUSINESS AGAINST UNREASONABLE SEARCH AND SEIZURE.  COMPARE 12 U.S.C.
SEC. 481 WITH BOYD V. UNITED STATES, 116 U.S. 616.  A STATE CONTRACTOR
CAN BE DEPRIVED OF EVEN THE RUDIMENTS OF A HEARING ON THE ISSUE OF
WHETHER THE STATE EXECUTIVE DEPARTMENT IS CONTRACTING IN ACCORDANCE
WITH APPLICABLE STATE LAW.  CF. PERKINS V. LUKENS STEEL CO., 310 U.S.
113.   THE "RIGHT" TO JUDICIAL REVIEW OF AGENCY DETERMINATIONS CAN BE
TAKEN AWAY FROM RAILROAD EMPLOYEES IN ONE SITUATION BUT GUARANTEED TO
PROFESSIONAL EMPLOYEES IN OTHER SITUATIONS.  COMPARE SWITCHMEN'S UNION
OF NORTH AMERICA V. NATIONAL MEDIATION BOARD, 320 U.S. 297, WITH LEEDOM
V. KYNE, 358 U.S. 184.  A STATE EMPLOYEE NEED NO LONGER BE ENTRUSTED
WITH GOVERNMENT PROPERTY IF HE REFUSES TO EXPLAIN WHAT HAS BECOME OF
PROPERTY WITH WHICH HE IS CHARGED THOUGH HIS REFUSAL MAY BE PROTECTED
AGAINST A CONTEMPT SANCTION BY A STATE OR FEDERAL PRIVILEGE AGAINST
SELF-INCRIMINATION.  CF. LERNER V. CASEY, 357 U.S. 468. 

CLEARLY ENOUGH, FACTUAL DISTINCTIONS ARE THE DETERMINATIVE
CONSIDERATION UPON THE QUESTION OF WHAT PROCESS IS DUE IN EACH OF THESE
CASES.  OTHERWISE MAKING STATE PROCEDURES VARY SOLELY ON THE BASIS OF
THE GIVEN OCCUPATION WOULD INDEED BE NOTHING LESS THAN A DENIAL OF
EQUAL PROTECTION TO BANKERS, CONTRACTORS, RAILROAD EMPLOYEES, AND
GOVERNMENT EMPLOYEES.  ON THE BASIS OF THE FACTUAL DISTINCTIONS THAT WE
HAVE MENTIONED ABOVE, WE CONSIDER THAT A STATE CAN CONSTITUTIONALLY
AFFORD A DIFFERENT PROCEDURE - THE PRESENT PROCEDURE - IN THESE
JUDICIAL INVESTIGATIONS FROM THAT IN CRIMINAL PROSECUTIONS. 

PETITIONER'S DISBARMENT IS CONSTITUTIONALLY INFIRM, AND THE COURT OF
APPEALS' ORDER MUST BE AFFIRMED. 

FN1  N.Y. CONST., ART. I, SEC. 6.  WHILE PETITIONER, AT HIS
APPEARANCE BEFORE THE INVESTIGATING AUTHORITY, ALSO CLAIMED A FEDERAL
PRIVILEGE NOT TO TESTIFY, IN HIS LATER RESPONSE TO THE PETITION
INITIATING DISCIPLINARY PROCEEDINGS HE RELIED SOLELY UPON "THE
PRIVILEGE AGAINST SELF-INCRIMINATION GUARANTEED TO ALL PERSONS, LAWYERS
OR LAYMEN ALIKE, UNDER ARTICLE I SECTION 6 OF THE NEW YORK STATE
CONSTITUTION."  IT IS OF COURSE SETTLED THAT A FIFTH AMENDMENT
PRIVILEGE WAS NOT AVAILABLE TO PETITIONER IN THE PRESENT CASE.  SEE,
E.G., KNAPP V. SCHWEITZER, 357 U.S. 371; LERNER V. CASEY, 357 U.S. 468,
478.  NOR DO WE UNDERSTAND IT TO BE CONTENDED THAT THE FOURTEENTH
AMENDMENT AUTOMATICALLY PRECLUDED THE STATE FROM EXACTING PETITIONER'S
TESTIMONY AND ATTACHING CONSEQUENCES TO HIS REFUSAL TO RESPOND.  CF.
ADAMSON V. CALIFORNIA, 332 U.S. 46, 54; PALKO V. CONNECTICUT, 302 U.S.
319, 323-324; TWINING V. NEW JERSEY, 211 U.S. 78, 110-114.  WE TAKE THE
PETITIONER'S POSITION AND THE REMITTITUR OF THE COURT OF APPEALS AS
PRESENTING UNDER THE FOURTEENTH AMENDMENT ONLY A BROAD CLAIM OF
FUNDAMENTAL UNFAIRNESS. 

FN2  THE FOLLOWING QUOTATION FROM THE RESPONDENT'S BRIEF ACCURATELY
REFLECTS THE RECORD: 

"DURING THE PERIOD 1954 TO 1958, INCLUSIVE, PURSUANT TO THE
PROVISIONS OF SAID RULE, PETITIONER, A SPECIALIST IN NEGLIGENCE CASES,
FILED 228 STATEMENTS AS TO RETAINER IN HIS OWN NAME.  IN ADDITION, 76
SUCH STATEMENTS WERE FILED IN THE FIRM NAME OF COHEN & ROTHENBERG, THUS
INDICATING THAT PETITIONER AND HIS LAW FIRM HAD BEEN RETAINED ON A
CONTINGENT BASIS IN A TOTAL OF 304 NEGLIGENCE CASES IN FIVE YEARS (R.
33-35).  THE INQUIRY THEREFORE DEEMED IT ADVISABLE TO CALL PETITIONER
AS ONE OF ITS WITNESSES." 

FN3  SECTION 90 OF THE NEW YORK JUDICIARY LAW. 

FN4  "  ...  CANON 22  ...  REQUIRING LAWYERS TO BE CANDID AND FRANK
WHEN BEFORE THE COURT, CANONS 28 AND 29 FORBIDDING THE PAYMENT OF
AWARDS TO PERSONS BRINGING IN LEGAL BUSINESS AND REQUIRING LAWYERS
KNOWING OF SUCH PRACTICES TO INFORM THE COURT THEREOF, CANON 34
OUTLAWING DIVISION OF FEES EXCEPT WITH OTHER LAWYERS  ...  ."  7 N.Y.2D
488, 494, 166 N.E.2D 672, 675.  CANONS 29 AND 34 OF THE NEW YORK CANONS
OF PROFESSIONAL ETHICS ARE FOUND IN MCKINNEY N.Y. LAWS, JUDICIARY LAW,
PP. 774-775.  CANONS 22 AND 28 ARE FOUND IN THE 1959 "POCKET PART," AT
PP. 210-211.  THEY ARE SIMILAR IN ALL RESPECTS TO THE CORRESPONDINGLY
NUMBERED CANONS OF PROFESSIONAL ETHICS OF THE AMERICAN BAR
ASSOCIATION. 

FN5  N.Y. PEN.  LAW SECS. 270-A, 270-C, 270-D, 276, "ALL RELATING TO
SOLICITING AND FEE SPLITTING."  7 N.Y.2D 488, 494, 166 N.E.2D 672,
675. 

FN6  JUDGE FULD DISSENTED ON STATE CONSTITUTIONAL GROUNDS, REACHING
NO FEDERAL QUESTIONS. 

FN7  "EVEN IF THE HISTORICAL MEANING OF DUE PROCESS OF LAW AND THE
DECISIONS OF THIS COURT DID NOT EXCLUDE THE PRIVILEGE FROM IT, IT WOULD
BE GOING FAR TO RATE IT AS AN IMMUTABLE PRINCIPLE OF JUSTICE WHICH IS
THE INALIENABLE POSSESSION OF EVERY CITIZEN OF A FREE GOVERNMENT. 
SALUTARY AS THE PRINCIPLE MAY SEEM TO THE GREAT MAJORITY, IT CANNOT BE
RANKED WITH THE RIGHT TO HEARING BEFORE CONDEMNATION, THE IMMUNITY FROM
ARBITRARY POWER NOT ACTING BY GENERAL LAWS, AND THE INVIOLABILITY OF
PRIVATE PROPERTY.  THE WISDOM OF THE EXEMPTION HAS NEVER BEEN
UNIVERSALLY ASSENTED TO SINCE THE DAYS OF BENTHAM; MANY DOUBT IT TO
DAY, AND IT IS BEST DEFENDED NOT AS AN UNCHANGEABLE PRINCIPLE OF
UNIVERSAL JUSTICE BUT AS A LAW PROVED BY EXPERIENCE TO BE EXPEDIENT. 
SEE WIGMORE, SEC. 2251.  IT HAS NO PLACE IN THE JURISPRUDENCE OF
CIVILIZED AND FREE COUNTRIES OUTSIDE THE DOMAIN OF THE COMMON LAW, AND
IT IS NOWHERE OBSERVED AMONG OUR OWN PEOPLE IN THE SEARCH FOR TRUTH
OUTSIDE THE ADMINISTRATION OF THE LAW.  IT SHOULD, MUST AND WILL BE
RIGIDLY OBSERVED WHERE IT IS SECURED BY SPECIFIC CONSTITUTIONAL
SAFEGUARDS, BUT THERE IS NOTHING IN IT WHICH GIVES IT A SANCTITY ABOVE
AND BEFORE CONSTITUTIONS THEMSELVES.  MUCH MIGHT BE SAID IN FAVOR OF
THE VIEW THAT THE PRIVILEGE WAS GUARANTEED AGAINST STATE IMPAIRMENT AS
A PRIVILEGE AND IMMUNITY OF NATIONAL CITIZENSHIP, BUT, AS HAS BEEN
SHOWN, THE DECISIONS OF THIS COURT HAVE FORECLOSED THAT VIEW.  THERE
SEEMS TO BE NO REASON WHATEVER, HOWEVER, FOR STRAINING THE MEANING OF
DUE PROCESS OF LAW TO INCLUDE THIS PRIVILEGE WITHIN IT, BECAUSE,
PERHAPS, WE MAY THINK IT OF GREAT VALUE.  THE STATES HAD GUARDED THE
PRIVILEGE TO THE SATISFACTION OF THEIR OWN PEOPLE UP TO THE ADOPTION OF
THE FOURTEENTH AMENDMENT.  NO REASON IS PERCEIVED WHY THEY CANNOT
CONTINUE TO DO SO.  THE POWER OF THEIR PEOPLE OUGHT NOT TO BE FETTERED,
THEIR SENSE OF RESPONSIBILITY LESSENED, AND THEIR CAPACITY FOR SOBER
AND RESTRAINED SELF-GOVERNMENT WEAKENED BY FORCED CONSTRUCTION OF THE
FEDERAL CONSTITUTION  ... ."  211 U.S., AT 113-114. 

FN8  HENCE, IF ANY "CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION" HAS HERE BEEN MADE A "PHRASE WITHOUT REALITY" IT CAN
ONLY HAVE BEEN A STATE PRIVILEGE WHICH THIS COURT DOES NOT HAVE
JURISDICTION TO PROTECT. 

FN9  "THE PRIVILEGE AGAINST SELF-INCRIMINATION MAY BE WITHDRAWN AND
THE ACCUSED PUT UPON THE STAND AS A WITNESS FOR THE STATE."  291 U.S.,
AT 105. 

FN10  "CALIFORNIA FOLLOWS ANGLO-AMERICAN LEGAL TRADITION IN EXCUSING
DEFENDANTS IN CRIMINAL PROSECUTIONS FROM COMPULSORY TESTIMONY  ...  .
THAT IS A MATTER OF LEGAL POLICY AND NOT BECAUSE OF THE REQUIREMENTS OF
DUE PROCESS UNDER THE FOURTEENTH AMENDMENT."  332 U.S., AT 54-55. 

FN11  OF COURSE IT IS NOT ALONE THE EARLY BEGINNING OF THE PRACTICE
OF JUDICIAL INQUIRY INTO ATTORNEY PRACTICES WHICH IS SIGNIFICANT UPON
THE REASONABLENESS OF WHAT TRANSPIRED HERE.  RATHER IT IS THE LONG LIFE
OF THAT MODE OF PROCEDURE WHICH BEARS UPON THAT ISSUE, IN MUCH THE SAME
WAY THAT A STRONG CONSENSUS OF VIEWS IN THE STATES IS RELEVANT TO A
FINDING OF FUNDAMENTAL UNFAIRNESS.  WHAT IS SIGNIFICANT IS THAT THE
PRACTICE WE ARE NOW CONCERNED WITH HAS SURVIVED THE CENTURIES WHICH
HAVE SEEN THE FALL OF ALL THOSE INIQUITOUS STANDARDS OF WHICH WE ARE
REMINDED, AND WHICH, INCIDENTALLY, WOULD BE EQUALLY UNCONSTITUTIONAL
TODAY IF APPLIED AFTER A FULL CRIMINAL-TYPE INVESTIGATION AND TRIAL. 
WHILE RECOGNIZING THAT THE TEST WAS NOT EXCLUSIVE, THIS COURT STATED
MANY YEARS AGO: 

"FIRST.  WHAT IS DUE PROCESS OF LAW MAY BE ASCERTAINED BY AN
EXAMINATION OF THOSE SETTLED USAGES AND MODES OF PROCEEDINGS EXISTING
IN THE COMMON AND STATUTE LAW OF ENGLAND BEFORE THE EMIGRATION OF OUR
ANCESTORS, AND SHOWN NOT TO HAVE BEEN UNSUITED TO THEIR CIVIL AND
POLITICAL CONDITION BY HAVING BEEN ACTED ON BY THEM AFTER THE
SETTLEMENT OF THIS COUNTRY.  THIS TEST WAS ADOPTED BY THE COURT,
SPEAKING THROUGH MR. JUSTICE CURTIS, IN MURRAY V. HOBOKEN LAND CO., 18
HOW.  272, 280  ...  ."  TWINING V. NEW JERSEY, SUPRA, AT 100. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

WE ARE ONCE AGAIN CALLED UPON TO CONSIDER THE CONSTITUTIONALITY OF
PENALTIES IMPOSED UPON LAWYERS WHO REFUSE TO TESTIFY BEFORE A SECRET
INQUIRY BEING CONDUCTED BY THE STATE OF NEW YORK INTO SUSPECTED
UNETHICAL PRACTICES AMONG MEMBERS OF THE LEGAL PROFESSION IN AND AROUND
NEW YORK CITY.  IN ANONYMOUS V. BAKER, (FN1) A MAJORITY OF THIS COURT
UPHELD THE POWER OF NEW YORK TO CONDUCT SUCH A SECRET INQUIRY.  HERE,
THE MAJORITY UPHOLDS THE DISBARMENT OF PETITIONER, A NEW YORK LAWYER
FOR THIRTY-NINE YEARS, SOLELY BECAUSE, IN RELIANCE UPON AN ASSERTION OF
HIS CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION, HE REFUSED TO
TESTIFY BEFORE THAT INQUIRY.  THE THEORY UPON WHICH THIS ORDER OF
DISBARMENT WAS UPHELD BY THE NEW YORK COURT OF APPEALS - A THEORY WHICH
THE MAJORITY HERE EMBRACES - IS THAT ALTHOUGH LAWYERS, AS CITIZENS,
HAVE A CONSTITUTIONAL RIGHT NOT TO INCRIMINATE THEMSELVES, THEY ALSO
HAVE A SPECIAL DUTY, AS LAWYERS, TO COOPERATE WITH THE COURTS AND THAT
THIS "DUTY OF CO-OPERATION" WOULD BECOME A "'PHRASE WITHOUT REALITY'
...  IF A LAWYER AFTER REFUSING TO ANSWER PERTINENT QUESTIONS ABOUT HIS
PROFESSIONAL CONDUCT CAN RETAIN HIS STATUS AND PRIVILEGES AS AN OFFICER
OF THE COURT."  (FN2)  IN MY JUDGMENT, HOWEVER, THE MAJORITY IS HERE
APPROVING A PRACTICE THAT MAKES THE CONSTITUTIONAL PRIVILEGE AGAINST
SELF-INCRIMINATION THE "PHRASE WITHOUT REALITY."  (FN3) 

THIS ALMOST MAGICAL OBLITERATION OF THE PRIVILEGE AGAINST SELF
INCRIMINATION REPRESENTS A RADICAL DEPARTURE FROM THE PREVIOUSLY
ESTABLISHED PRACTICE IN THE STATE OF NEW YORK.  FOR, AS POINTED OUT IN
THE DISSENT OF JUDGE FULD, THE NEW YORK COURT OF APPEALS HAD EARLIER
CONDEMNED AN ATTEMPT TO INTRODUCE PRECISELY THE POLICY IT HERE
ACCEPTED, SAYING:  "'THE CONSTITUTIONAL PRIVILEGE NOT TO INCRIMINATE
ONE'S SELF IS A FUNDAMENTAL RIGHT AND A MEASURE OF DUTY; ITS EXERCISE
CANNOT BE A BREACH OF DUTY TO THE COURT.'  IT FOLLOWS THAT  ...  THE
PRESENT DISCIPLINARY PROCEEDING INSTITUTED AGAINST THE APPELLANT,
WHEREIN THE SINGLE OFFENSE CHARGED IS HIS REFUSAL TO YIELD A
CONSTITUTIONAL PRIVILEGE, IS UNWARRANTABLE."  (FN4) 

IN DEPARTING FROM ITS PRIOR POLICY OF FULLY PROTECTING THE PRIVILEGE
AGAINST COMPELLED SELF-INCRIMINATION GUARANTEED BY BOTH THE STATE AND
THE FEDERAL CONSTITUTIONS, THE NEW YORK COURT RELIED HEAVILY ON SEVERAL
OF THIS COURT'S RECENT CASES.  (FN5)  THOSE CASES, I REGRET TO SAY, DO
PROVIDE SOME SUPPORT FOR NEW YORK'S PARTIAL NULLIFICATION OF THE
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  FOR THOSE CASES
ARE A PRODUCT OF THE RECENTLY EMPHASIZED CONSTITUTIONAL PHILOSOPHY
UNDER WHICH NO CONSTITUTIONAL RIGHT IS SAFE FROM BEING "BALANCED" OUT
OF EXISTENCE WHENEVER A MAJORITY OF THIS COURT THINKS THAT THE
INTERESTS OF THE STATE "WEIGH MORE" THAN THE PARTICULAR CONSTITUTIONAL
GUARANTEE INVOLVED.  (FN6)  THE PRODUCT OF THE "BALANCING" HERE IS THE
CONCLUSION THAT THE STATE'S INTEREST IN DISBARRING ANY LAWYER SUSPECTED
OF "AMBULANCE CHASING" OUTWEIGHS THE VALUE OF THOSE PROVISIONS OF OUR
BILL OF RIGHTS AND THE NEW YORK CONSTITUTION COMMANDING GOVERNMENT NOT
TO MAKE PEOPLE TESTIFY AGAINST THEMSELVES.  THIS IS A VERY DUBIOUS
CONCLUSION, AT LEAST TO ONE LIKE ME WHO BELIEVES THAT OUR BILL OF
RIGHTS GUARANTEES ARE ESSENTIAL TO INDIVIDUAL LIBERTY AND THAT THEY
STATE THEIR OWN VALUES LEAVING NO ROOM FOR COURTS TO "WEIGH" THEM OUT
OF THE CONSTITUTION.  (FN7)  THE FIRST AMENDMENT FREEDOMS HAVE ALREADY
SUFFERED A TREMENDOUS SHRINKAGE FROM "BALANCING," (FN8) AND HERE THE
FIFTH AMENDMENT ONCE AGAIN SUFFERS FROM THE SAME PROCESS.  (FN9)  I
AGREE WITH MR. JUSTICE DOUGLAS THAT THE ORDER HERE UNDER REVIEW IS IN
DIRECT CONFLICT WITH THE MANDATE OF THE FIFTH AMENDMENT AS MADE
CONTROLLING UPON THE STATES BY THE FOURTEENTH AMENDMENT.  (FN10) 

IN A LESS IMPORTANT AREA, I WOULD BE CONTENT TO REST MY DISSENT UPON
THE SINGLE GROUND THAT A STATE MAY NOT PENALIZE ANY PERSON FOR INVOKING
HIS CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  BUT, AS I SEE
THIS CASE, IT INVOLVES OTHER CONSTITUTIONAL PROBLEMS THAT GO FAR BEYOND
THE PRIVILEGE AGAINST SELF-INCRIMINATION - PROBLEMS THAT INVOLVE
DANGERS WHICH, THOUGH AS YET LARGELY PECULIAR TO THE MEMBERS OF THE
LEGAL PROFESSION, ARE SO IMPORTANT THAT THEY NEED TO BE DISCUSSED. 
AND, AS I UNDERSTAND THE MAJORITY'S OPINION, IT DISPOSES OF THOSE
PROBLEMS ON A GROUND THAT, FROM THE STANDPOINT OF THE LEGAL PROFESSION,
IS THE MOST FAR-REACHING POSSIBLE - THAT LAWYERS HAVE FEWER
CONSTITUTIONAL RIGHTS THAN OTHERS.  IT THUS PLACES THE STAMP OF
APPROVAL UPON A DOCTRINE THAT, IF PERMITTED TO GROW, AS DOCTRINES HAVE
A HABIT OF DOING, CAN GO FAR TOWARD DESTROYING THE INDEPENDENCE OF THE
LEGAL PROFESSION AND THUS TOWARD RENDERING THAT PROFESSION LARGELY
INCAPABLE OF PERFORMING THE VERY KINDS OF SERVICES FOR THE PUBLIC THAT
MOST JUSTIFY ITS EXISTENCE. 

THE UNLIMITED REACH OF THE DOCTRINE BEING PROMULGATED CAN BEST BE
SHOWN BY ANALYSIS OF THE ISSUE BEFORE US AS THAT ISSUE WAS POSED BY THE
COURT BELOW.  IN CONCLUDING THAT PETITIONER SHOULD BE DISBARRED FOR
RELIANCE UPON THE PRIVILEGE AGAINST SELF-INCRIMINATION, THE NEW YORK
COURT OF APPEALS EXPRESSLY RECOGNIZED THE RIGHT OF EVERY CITIZEN, UNDER
NEW YORK LAW, TO REFUSE TO GIVE SELF-INCRIMINATING TESTIMONY.  "THAT
RIGHT," THE COURT SAID, "WAS HIS (PETITIONER'S) AS IT WOULD BE THE
RIGHT OF ANY CITIZEN  ... ."  BUT, THE COURT REASONED, PETITIONER WAS
MORE THAN AN ORDINARY CITIZEN.  "HE STOOD BEFORE THE INQUIRY AND BEFORE
THE APPELLATE DIVISION IN ANOTHER QUITE DIFFERENT CAPACITY, ALSO." 
(FN11)  THE CAPACITY REFERRED TO WAS PETITIONER'S CAPACITY AS A
LAWYER.  IN THAT "CAPACITY," THE COURT CONCLUDED, PETITIONER COULD NOT
PROPERLY AVAIL HIMSELF OF HIS RIGHTS AS A CITIZEN.  THUS IT IS CLEAR
THAT THE THEORY ADOPTED BY THE COURT BELOW AND REAFFIRMED BY THE
MAJORITY HERE IS THAT LAWYERS MAY BE SEPARATED INTO A SPECIAL GROUP
UPON WHICH SPECIAL BURDENS CAN BE IMPOSED EVEN THOUGH SUCH BURDENS ARE
NOT AND CANNOT BE PLACED UPON OTHER GROUPS.  LAWYERS ARE THUS TO HAVE
THEIR LEGAL RIGHTS DETERMINED BY SOMETHING LESS THAN THE "LAW OF THE
LAND" AS IT IS ACCORDED TO OTHER PEOPLE. 

IN MY JUDGMENT, THE THEORY SO CASUALLY BUT ENTHUSIASTICALLY ADOPTED
BY THE MAJORITY CONSTITUTES NOTHING LESS THAN A DENIAL TO LAWYERS OF
BOTH DUE PROCESS AND EQUAL PROTECTION OF THE LAWS AS GUARANTEED BY THE
FOURTEENTH AMENDMENT.  FOR I HAVE ALWAYS BELIEVED THAT THOSE
GUARANTEES, TAKEN TOGETHER, MEAN AT LEAST AS MUCH AS DANIEL WEBSTER
TOLD THIS COURT WAS MEANT BY DUE PROCESS OF LAW, OR THE "LAW OF THE
LAND," IN HIS FAMOUS ARGUMENT IN THE DARTMOUTH COLLEGE CASE:  "BY THE
LAW OF THE LAND IS MOST CLEARLY INTENDED THE GENERAL LAW  ...  .  THE
MEANING IS, THAT EVERY CITIZEN SHALL HOLD HIS LIFE, LIBERTY, PROPERTY,
AND IMMUNITIES, UNDER THE PROTECTION OF THE GENERAL RULES WHICH GOVERN
SOCIETY."  (FN12)  I THINK IT IS CLEAR THAT THE OPINION OF THE MAJORITY
IN THIS CASE SAYS UNEQUIVOCALLY THAT LAWYERS MAY NOT AVAIL THEMSELVES
OF "THE GENERAL RULES WHICH GOVERN SOCIETY." 

THE MAJORITY RECOGNIZES, AS INDEED IT MUST, THAT NEW YORK IS
DEPRIVING LAWYERS, BECAUSE THEY ARE LAWYERS, OF THE FULL BENEFIT OF A
CONSTITUTIONAL PRIVILEGE AVAILABLE TO OTHER PEOPLE.  BUT, INSTEAD OF
REACHING THE NATURAL AND, I THINK, OBVIOUS CONCLUSION THAT SUCH A
SINGLING OUT OF ONE PARTICULAR GROUP (FN13) FOR SPECIAL DISABILITIES
WITH REGARD TO THE BASIC PRIVILEGES OF INDIVIDUALS IS IN DIRECT
CONFLICT WITH THE FOURTEENTH AMENDMENT, (FN14) IT CHOOSES TO DEFEND
THIS PATENT DISCRIMINATION AGAINST LAWYERS ON THE THEORY THAT THERE ARE
NO PROTECTIONS GUARANTEED TO EVERY MAN WHO, IN THE WORDS OF MAGNA
CHARTA, IS BEING "ANYWISE DESTROYED" BY THE GOVERNMENT.  THE "LAW OF
THE LAND" IS THEREFORE, IN THE VIEW OF THE MAJORITY, AN ACCORDION-LIKE
PROTECTION THAT CAN BE WITHDRAWN FROM ANY PERSON OR GROUP OF PERSONS
WHENEVER THE GOVERNMENT MIGHT PREFER "PROCEDURES RESULTING IN GREATER
PREVENTIVE CERTAINTY" IF IT CAN SHOW SOME "REASONABLE" BASIS FOR THAT
PREFERENCE.  THE MAJORITY THEN PROCEEDS TO FIND SUCH A "REASONABLE"
BASIS ON TWO GROUNDS:  FIRST, THAT LAWYERS OCCUPY A HIGH POSITION IN
OUR SOCIETY "AFFORDING SPECIAL OPPORTUNITIES FOR DELETERIOUS CONDUCT"
AND CAN, BY VIRTUE OF THAT POSITION, BE COMPELLED TO FOREGO RIGHTS THAT
ARE ACCORDED TO OTHER GROUPS; AND, SECONDLY, THAT THE POWERS HERE
EXERCISED OVER PETITIONER BY THE COURTS OF NEW YORK ARE NO DIFFERENT
THAN THOSE EXERCISED OVER LAWYERS BY THE COURTS OF ENGLAND SEVERAL
HUNDRED YEARS AGO.  IN MY JUDGMENT, NEITHER OF THESE GROUNDS PROVIDES
THE SLIGHTEST JUSTIFICATION FOR THE REFUSAL OF THE STATE OF NEW YORK TO
ALLOW LAWYERS TO AVAIL THEMSELVES OF "THE GENERAL RULES WHICH GOVERN
SOCIETY." 

I HEARTILY AGREE WITH THE VIEW EXPRESSED BY THE MAJORITY THAT LAWYERS
OCCUPY AN IMPORTANT POSITION IN OUR SOCIETY, FOR I RECOGNIZE THAT THEY
HAVE A GREAT DEAL TO DO WITH THE ADMINISTRATION, THE ENFORCEMENT, THE
INTERPRETATION, AND FREQUENTLY EVEN WITH THE MAKING OF THE CONSTITUTION
AND THE OTHER LAWS THAT GOVERN US.  BUT I DO NOT AGREE WITH THE
MAJORITY THAT THE IMPORTANCE OF THEIR POSITION IN ANY WAY JUSTIFIES A
DISCRIMINATION AGAINST THEM WITH REGARD TO THEIR BASIC RIGHTS AS
INDIVIDUALS.  QUITE THE CONTRARY, I WOULD THINK THAT THE IMPORTANT ROLE
THAT LAWYERS ARE CALLED UPON TO PLAY IN OUR SOCIETY WOULD MAKE IT ALL
THE MORE IMPERATIVE THAT THEY NOT BE DISCRIMINATED AGAINST WITH REGARD
TO THE BASIC FREEDOMS THAT ARE DESIGNED TO PROTECT THE INDIVIDUAL
AGAINST THE TYRANNICAL EXERTION OF GOVERNMENTAL POWER.  FOR, IN MY
JUDGMENT, ONE OF THE GREAT PURPOSES UNDERLYING THE GRANT OF THOSE
FREEDOMS WAS TO GIVE INDEPENDENCE TO THOSE WHO MUST DISCHARGE IMPORTANT
PUBLIC RESPONSIBILITIES.  THE LEGAL PROFESSION, WITH RESPONSIBILITIES
AS GREAT AS THOSE PLACED UPON ANY GROUP IN OUR SOCIETY, MUST HAVE THAT
INDEPENDENCE.  IF IT IS DENIED THEM, THEY ARE LIKELY TO BECOME NOTHING
MORE THAN PARROTS OF THE VIEWS OF WHATEVER GROUP WIELDS GOVERNMENTAL
POWER AT THE MOMENT.  WHEREVER THAT HAS HAPPENED IN THE WORLD, THE
LAWYER, AS PROPERLY SO CALLED AND RESPECTED, HAS CEASED TO PERFORM THE
HIGHEST DUTY OF HIS CALLING AND HAS LOST THE AFFECTION AND EVEN THE
RESPECT OF THE PEOPLE. 

NOR DO I BELIEVE, AS THE MAJORITY ASSERTS, THAT THE DISCRIMINATION
HERE PRACTICED IS JUSTIFIED BY VIRTUE OF THE FACT THAT THE COURTS OF
ENGLAND HAVE FOR CENTURIES EXERCISED DISCIPLINARY POWERS "OVER MEMBERS
OF THE BAR, INCIDENT TO THEIR BROADER RESPONSIBILITY FOR KEEPING THE
ADMINISTRATION OF JUSTICE AND THE STANDARDS OF PROFESSIONAL CONDUCT
UNSULLIED."  THE RIGHTS OF LAWYERS IN THIS COUNTRY ARE NOT, I HOPE, TO
BE LIMITED TO THE RIGHTS THAT ENGLISH RULERS CHOSE TO ACCORD TO THEIR
BARRISTERS HUNDREDS OF YEARS AGO.  FOR IT IS CERTAINLY TRUE THAT THE
COURTS OF ENGLAND COULD HAVE THEN, AS THE MAJORITY POINTS OUT, MADE
"SHORT SHRIFT" OF ANY BARRISTER WHO REFUSED TO "CO-OPERATE" WITH THE
KING'S COURTS.  INDEED, THOSE COURTS DID SOMETIMES MAKE "SHORT SHRIFT"
OF LAWYERS WHOSE GREATEST CRIME WAS TO DARE TO DEFEND UNPOPULAR
CAUSES.  (FN15)  AND IN MUCH THE SAME MANNER, THESE SAME COURTS WERE AT
THIS SAME TIME USING THEIR "INHERENT" POWERS TO MAKE "SHORT SHRIFT" OF
JURIES THAT RETURNED THE WRONG VERDICT.  (FN16)  HISTORY, I THINK,
RECORDS THAT IT WAS THIS WILLINGNESS ON THE PART OF THE COURTS OF
ENGLAND TO MAKE "SHORT SHRIFT" OF UNPOPULAR AND UNCOOPERATIVE GROUPS
THAT LED, FIRST, TO THE COLONIZATION OF THIS COUNTRY, LATER, TO THE WAR
THAT WON ITS INDEPENDENCE, AND, FINALLY TO THE BILL OF RIGHTS.  (FN17) 

WHEN THE FOUNDERS OF THIS NATION DREW UP OUR CONSTITUTION, THEY WERE
UNEASILY AWARE OF THIS ENGLISH PRACTICE, BOTH AS IT HAD PREVAILED IN
THAT COUNTRY AND AS IT HAD BEEN EXPERIENCED IN THE COLONIES PRIOR TO
THE REVOLUTION.  PARTICULARLY FRESH IN THEIR MINDS WAS THE TREATMENT
THAT HAD BEEN ACCORDED THE LAWYERS WHO HAD SOUGHT TO DEFEND JOHN PETER
ZENGER AGAINST A CHARGE OF SEDITIOUS LIBEL BEFORE A ROYAL COURT IN NEW
YORK IN 1735.  (FN18)  THESE TWO LAWYERS HAD BEEN SUMMARILY DISBARRED
BY THE JUDGES PRESIDING AT THAT TRIAL FOR "HAVING PRESUMED,
(NOTWITHSTANDING THEY WERE FOREWARNED BY THE COURT OF THEIR
DISPLEASURE, IF THEY SHOULD DO IT) TO SIGN, AND HAVING ACTUALLY SIGNED,
AND PUT INTO COURT, EXCEPTIONS, IN THE NAME OF JOHN PETER ZENGER;
THEREBY DENYING THE LEGALITY OF THE JUDGES THEIR COMMISSIONS  ...  ." 
(FN19)  IT IS TO THE LASTING CREDIT AND RENOWN OF THE COLONIAL BAR THAT
ANDREW HAMILTON, A LAWYER OF PHILADELPHIA, DEFIED THE HOSTILITY OF THE
JUDGES, DEFENDED AND BROUGHT ABOUT THE ACQUITTAL OF ZENGER.  (FN20) 

UNLIKE THE MAJORITY TODAY, HOWEVER, THE FOUNDERS WERE SINGULARLY
UNIMPRESSED BY THE LONG HISTORY OF SUCH ENGLISH PRACTICES.  THEY DREW
UP A CONSTITUTION WITH PROVISIONS THAT WERE INTENDED TO PRECLUDE FOR
ALL TIME IN THIS COUNTRY THE PRACTICE OF MAKING "SHORT SHRIFT" OF
ANYONE - WHETHER HE BE LAWYER, DOCTOR, PLUMBER OR THIEF.  THUS, IT WAS
PROVIDED THAT IN THIS COUNTRY, THE BASIC "LAW OF THE LAND" MUST
INCLUDE, AMONG OTHERS, FREEDOM FROM BILLS OF ATTAINDER, FROM EX POST
FACTO LAWS AND FROM COMPULSORY SELF-INCRIMINATION, AND RIGHTS TO TRIAL
BY JURY AFTER INDICTMENT BY GRAND JURY AND TO ASSISTANCE OF COUNSE. 
(FN21)  TO MAKE CERTAIN THAT THESE RIGHTS AND FREEDOMS WOULD BE
ACCORDED EQUALLY TO EVERYONE, IT WAS ALSO PROVIDED: "NO PERSON SHALL
...  BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF
LAW."  (FN22)  THE MAJORITY IS HOLDING, HOWEVER, THAT LAWYERS ARE NOT
ENTITLED TO THE FULL SWEEP OF DUE PROCESS PROTECTIONS BECAUSE THEY HAD
NO SUCH PROTECTIONS AGAINST JUDGES OR THEIR FELLOW LAWYERS IN ENGLAND. 
BUT I SEE NO REASON WHY THIS GENERATION OF AMERICANS SHOULD BE DEPRIVED
OF A PART OF ITS BILL OF RIGHTS ON THE BASIS OF MEDIEVAL ENGLISH
PRACTICES THAT OUR FOREFATHERS LEFT ENGLAND, FOUGHT A REVOLUTION AND
WROTE A CONSTITUTION TO GET RID OF.  (FN23)  THIS COURT SHOULD SAY HERE
WITH RESPECT TO DUE PROCESS AND SELF-INCRIMINATION WHAT IT SAID WITH
RESPECT TO THE FREEDOMS OF SPEECH AND PRESS IN BRIDGES V. CALIFORNIA:
"TO ASSUME THAT ENGLISH COMMON LAW IN THIS FIELD BECAME OURS IS TO DENY
THE GENERALLY ACCEPTED HISTORICAL BELIEF THAT 'ONE OF THE OBJECTS OF
THE REVOLUTION WAS TO GET RID OF THE ENGLISH COMMON LAW ON LIBERTY OF
SPEECH AND OF THE PRESS.'"  (FN24)    INSTEAD OF APPLYING THE REASONING
OF THE BRIDGES CASE TO PROTECT THE RIGHT OF LAWYERS TO AVAIL THEMSELVES
OF THE PRIVILEGE AGAINST SELF-INCRIMINATION, THE MAJORITY DEPARTS FROM
THAT REASONING IN AN OPINION THAT THREATENS ALSO TO RESTRICT THE
FREEDOMS OF SPEECH, PRESS AND ASSOCIATION.  FOR, IN ADDITION TO THE
BARE HOLDING THAT A LAWYER MAY NOT AVAIL HIMSELF OF THE "LAW OF THE
LAND" WITH RESPECT TO THE PRIVILEGE AGAINST SELF-INCRIMINATION, THE
OPINION CARRIES THE PLAIN IMPLICATION THAT A LAWYER IS NOT TO HAVE THE
PROTECTION OF THE FIRST AMENDMENT WITH REGARD TO HIS PRIVATE BELIEFS
AND ASSOCIATIONS WHENEVER HIS EXERCISE OF THESE FREEDOMS MIGHT
INTERFERE WITH HIS DUTY TO "CO-OPERATE" WITH A JUDGE.  (FN25)  IT IS,
OF COURSE, POSSIBLE THAT THE MAJORITY WILL ALLOW THIS PROCESS TO GO NO
FURTHER - THAT IT WILL NOT DISTURB THE FEW REMAINING CONSTITUTIONAL
SAFEGUARDS OF THE LAWYER'S INDEPENDENCE.  BUT I FIND NO SUCH PROMISE IN
THE MAJORITY'S OPINION.  ON THE CONTRARY, I FIND IN THAT OPINION A
WILLINGNESS TO GIVE OVERRIDING EFFECT TO THE LAWYER'S DUTY OF "CO
OPERATION," EVEN TO THE DESTRUCTION OF CONSTITUTIONAL SAFEGUARDS, AND I
CANNOT KNOW HOW MANY CONSTITUTIONAL SAFEGUARDS WOULD BE SACRIFICED TO
THIS DOCTRINE.  COULD A LAWYER WHO REFUSED TO "CO-OPERATE" NOW BE
SUBJECTED TO AN UNLAWFUL SEARCH IN AN ATTEMPT TO FIND EVIDENCE THAT HE
IS GUILTY OF SOMETHING THAT A JUDGE MIGHT LATER FIND TO CONSTITUTE
"SHADY PRACTICES"?  (FN26)  COULD THE COURT PEREMPTORILY CONFINE A
LAWYER IN JAIL FOR CONTEMPT UNTIL HE AGREED TO "CO-OPERATE" WITH THE
COURT BY FOREGOING HIS PRIVILEGE AGAINST SELF-INCRIMINATION - OR
RENOUNCING HIS FREEDOM OF SPEECH?  (FN27)  OR CAN AMERICAN COURTS NOW
EMULATE THE ONE-TIME PRACTICE OF ENGLISH COURTS OF SENDING LAWYERS TO
JAIL FOR THE "CRIME" OF PUBLICLY ADVOCATING THE REPEAL OF LAWS THAT
REQUIRE PEOPLE TO INCRIMINATE THEMSELVES?  (FN28)  IF THE REQUIREMENTS
OF DUE PROCESS AND EQUAL PROTECTION OF THE LAWS ARE OBSERVED, WE KNOW
THAT THE ANSWERS TO THESE QUESTIONS WOULD BE, NO. BUT WHO KNOWS HOW
SHORT "SHORT SHRIFT" CAN GET? 

THE MAJORITY SAYS THAT SOME OF THE EVIL PRACTICES I HAVE REFERRED TO
DO NOT EXIST TODAY AND THAT THEY WOULD NOW BE HELD UNCONSTITUTIONAL. 
THE COURT DOES NOT MEAN, OF COURSE, THAT THE PEOPLE OF THIS COUNTRY
HAVE AN "ABSOLUTE" RIGHT NOT TO BE SUBJECTED TO SUCH PRACTICES.  (FN29)
IT MEANS RATHER THAT A MAJORITY OF THIS COURT, AS PRESENTLY
CONSTITUTED, THINKS THAT SUCH PRACTICES ARE NOT "JUSTIFIED ON
BALANCE."  BUT ONLY 10 YEARS AGO, A DIFFERENT MAJORITY OF THIS COURT
UPHELD SUMMARY IMPRISONMENT OF THE DEFENSE COUNSEL IN DENNIS V. UNITED
STATES, (FN30) ON A RECORD WHICH INDICATED THAT THE PRIMARY REASON FOR
THE IMPRISONMENT WAS THE IMPUTATION TO THE LAWYERS OF WHAT THE TRIAL
JUDGE CONCEIVED OF AS THE UNPATRIOTIC AND TREASONABLE DESIGNS OF THEIR
CLIENTS.  (FN31)  EVEN MORE RECENTLY, A BARE 5-4 MAJORITY OF THIS COURT
PREVENTED THE TEMPORARY DISBARMENT OF A LAWYER WHOSE ONLY "CRIME" LAY
IN CRITICIZING THE MANNER IN WHICH THE FEDERAL COURTS CONDUCT TRIALS
FOR SEDITION.  (FN32)  AND TODAY, THIS COURT IS UPHOLDING THE REFUSAL
OF TWO STATES TO ADMIT LAWYERS TO THEIR RESPECTIVE BARS SOLELY BECAUSE
THOSE LAWYERS WOULD NOT RENOUNCE THEIR RIGHTS UNDER THE FIRST
AMENDMENT.  (FN33)  THE SAD TRUTH IS THAT THE MAJORITY IS BEING UNDULY
OPTIMISTIC IN THINKING THE PRACTICES I HAVE MENTIONED DO NOT EXIST
TODAY.  THEY MAY HAVE BEEN DISGUISED BY DESCRIPTION IN DIFFERENT
LANGUAGE BUT THE PRACTICES THEMSELVES HAVE NOT CHANGED. 

IT SEEMS TO ME THAT THE MAJORITY TAKES A FUNDAMENTALLY UNSOUND
POSITION WHEN IT ENDORSES A PRACTICE BASED UPON THE ARTIFICIAL NOTION
THAT RIGHTS AND PRIVILEGES CAN BE STRIPPED FROM A MAN IN HIS CAPACITY
AS A LAWYER WITHOUT AFFECTING THE RIGHTS AND PRIVILEGES OF THAT MAN AS
A MAN.  IT IS BEYOND DISPUTE THAT ONE OF THE IMPORTANT ENDS SERVED BY
THE PRACTICE OF LAW IS THAT IT PROVIDES A MEANS OF LIVELIHOOD FOR THE
LAWYER AND THOSE DEPENDENT UPON HIM FOR SUPPORT.  THAT MEANS OF EARNING
A LIVELIHOOD IS NOT ONE THAT HAS BEEN CONFERRED UPON THE LAWYER AS A
GIFT FROM THE STATE.  QUITE THE CONTRARY, IT REPRESENTS A SUBSTANTIAL
INVESTMENT IN TIME, MONEY AND ENERGY ON THE PART OF THE PERSON WHO
PREPARES HIMSELF TO GO INTO THE LEGAL PROFESSION.  MOREOVER, EVEN AFTER
A LAWYER HAS BEEN ADMITTED TO PRACTICE, A FURTHER SUBSTANTIAL
INVESTMENT MUST BE MADE TO ENABLE THE LAWYER TO BUILD UP THE SORT OF
GOODWILL THAT LIES AT THE ROOT OF ANY SUCCESSFUL PRACTICE.  YOUNG
LAWYERS MUST AND DO TAKE ON CASES IN WHICH THEIR ULTIMATE FEE IS ONLY A
FRACTION OF THE REAL VALUE OF THE WORK THEY PUT INTO THE CASE IN ORDER
TO BUILD UP THIS SORT OF GOODWILL.  THE LAWYER'S ABILITIES, ACQUIRED
THROUGH LONG AND EXPENSIVE EDUCATION, AND THE GOODWILL ATTACHED TO HIS
PRACTICE, ACQUIRED IN PART THROUGH UNCOMPENSATED SERVICES, ARE CAPITAL
ASSETS THAT BELONG TO THE LAWYER - BOTH AS A LAWYER AND AS A MAN,
ASSUMING THAT SUCH A CONCEPTUALISTIC DISTINCTION CAN BE DRAWN. 

THESE ASSETS SHOULD BE NO MORE SUBJECT TO CONFISCATION THAN HIS HOME
OR ANY OTHER ASSET HE MAY HAVE ACQUIRED THROUGH HIS INDUSTRY AND
INITIATIVE.  IF THEY ARE USED IN VIOLATION OF AN ALREADY-EXISTING,
CLEAR REQUIREMENT OF THE LAW WHICH PRONOUNCES AS THE PENALTY FOR
VIOLATION CONFISCATION OF THE ASSETS, AND IF THE VIOLATION IS
ESTABLISHED IN A PROCEEDING IN WHICH ALL THE REQUIREMENTS OF THE "LAW
OF THE LAND" ARE SATISFIED, THAT IS ONE THING.  (FN34)  BUT TO
CONFISCATE THE EARNING CAPACITY THAT REPRESENTS A LARGE PART OF A
LAWYER'S LIFETIME ACHIEVEMENTS ON THE THEORY THAT NO SUCH ASSET EXISTS
IS QUITE ANOTHER.  THE THEORY THAT THE PRACTICE OF LAW IS NOTHING MORE
THAN A PRIVILEGE CONFERRED BY THE STATE WHICH IT CAN DESTROY WHENEVER
IT CAN ASSERT A "REASONABLE" JUSTIFICATION FOR DOING SO SEEMS TO ME TO
PERMIT PLAIN CONFISCATION. 

EVEN APART FROM THE FINANCIAL IMPACT, THE DISBARMENT OF A LAWYER
CANNOT HELP BUT HAVE A TREMENDOUS EFFECT UPON THAT LAWYER AS A MAN. 
THE DISHONOR OCCASIONED BY AN OFFICIAL PRONOUNCEMENT THAT A MAN IS NO
LONGER FIT TO FOLLOW HIS CHOSEN PROFESSION CANNOT WELL BE IGNORED. 
SUCH DISHONOR UNDOUBTEDLY GOES FAR TOWARD DESTROYING THE REPUTATION OF
THE MAN UPON WHOM IT IS HEAPED IN THE COMMUNITY IN WHICH HE LIVES.  AND
THE SUFFERING THAT RESULTS FALLS NOT ONLY UPON THE DISBARRED LAWYER BUT
UPON HIS FAMILY AS WELL.  GOVERNMENT CERTAINLY SHOULD NOT BE ALLOWED TO
DO THIS TO A MAN WITHOUT ACCORDING HIM THE FULL BENEDIT OF THE "LAW OF
THE LAND," BOTH CONSTITUTIONAL AND STATUTORY. 

IN VIEW OF ALL THIS, I CAN SEE NO JUSTIFICATION FOR THE NOTION THAT
MEMBERSHIP IN THE BAR IS A MERE PRIVILEGE CONFERRED BY THE STATE AND IS
THEREFORE SUBJECT TO WITHDRAWAL FOR THE "BREACH" OF WHATEVER VAGUE AND
INDEFINITE "DUTIES" THE COURTS AND OTHER LAWYERS MAY SEE FIT TO IMPOSE
ON A CASE-BY-CASE BASIS.  (FN35)  NEARLY A CENTURY AGO, AN ENGLISH
JUDGE OBSERVED, CORRECTLY I THINK, THAT "SHORT OF THOSE HEAVY
CONSEQUENCES WHICH WOULD ATTACH TO THE GREATER AND MORE HEINOUS
OFFENCES, I OWN I CAN CONCEIVE OF NO JURISDICTION MORE SERIOUS THAN
THAT BY WHICH A MAN MAY BE DEPRIVED OF HIS DEGREE AND STATUS AS A
BARRISTER, AND WHICH, IN SUCH A CASE - PERHAPS, AFTER HE HAD DEVOTED
THE BEST YEARS OF HIS LIFE TO THIS ARDUOUS PROFESSION, - DEPRIVES HIM
OF HIS POSITION AS A MEMBER OF THAT PROFESSION, AND THROWS HIM BACK
UPON THE WORLD TO COMMENCE A NEW CAREER AS BEST HE MAY, STAMPED WITH
DISHONOUR AND DISGRACE."  (FN36)  BUT THAT IS PRECISELY WHAT IS
HAPPENING HERE ON THE BASIS OF NOTHING MORE THAN PETITIONER'S "FAILURE
TO CO-OPERATE" WITH THE COURTS BY RELIANCE UPON HIS CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION.  A MAN WHO HAS DEVOTED THIRTY
NINE YEARS OF HIS LIFE TO THE PRACTICE OF LAW AND WHO, SO FAR AS THIS
RECORD SHOWS, HAS NEVER FAILED TO PERFORM THOSE SERVICES FAITHFULLY AND
HONORABLY IS BEING DISMISSED FROM THE PROFESSION IN DISGRACE AND IS
HAVING HIS MEANS OF LIVELIHOOD TAKEN AWAY FROM HIM AT A POINT IN HIS
LIFE WHEN IT SEEMS HIGHLY UNLIKELY THAT HE WILL BE ABLE TO FIND AN
ADEQUATE ALTERNATIVE MEANS TO SUPPORT HIMSELF. 

QUITE DIFFERENTLY FROM THE MAJORITY, I THINK THAT THE LEGAL
PROFESSION NOT ONLY CAN BUT SHOULD ENDURE WHAT THE MAJORITY REFERS TO
AS THE "DISRESPECT WHICH WOULD RESULT FROM THE PUBLICITY, DELAY, AND
POSSIBLE INEFFECTIVENESS IN THEIR EXPOSURE AND ERADICATION THAT MIGHT
FOLLOW COULD MISCREANTS ONLY BE DEALT WITH THROUGH ORDINARY
INVESTIGATORY AND PROSECUTORIAL PROCESSES."  INDEED, I CANNOT
UNDERSTAND HOW ANY MAN IN THIS COUNTRY CAN ASSUME THAT "PUBLICITY,"
"DELAY" AND "INEFFECTIVENESS" BROUGHT ON BY OBSERVANCE OF DUE PROCESS
OF LAW CAN EVER BE DISRESPECTABLE.  I AM NOT AT ALL CERTAIN, HOWEVER,
THAT THE LEGAL PROFESSION CAN SURVIVE IN ANY FORM WORTHY OF THE RESPECT
WE WANT IT TO HAVE IF ITS INTERNAL INTERGROUP CONFLICTS OVER
PROFESSIONAL ETHICS (FN37) ARE NOT RIGIDLY CONFINED BY JUST THOSE
"ORDINARY INVESTIGATORY AND PROSECUTORIAL PROCESSES" WHICH, THOUGH
BELITTLED BY THE MAJORITY TODAY, ARE ENSHRINED IN THE CONCEPTS OF EQUAL
PROTECTION AND DUE PROCESS.  FOR IF THE LEGAL PROFESSION CAN, WITH THE
AID OF THOSE MEMBERS OF THE PROFESSION WHO HAVE BECOME JUDGES, EXCLUDE
ANY MEMBER IT WISHES EVEN THOUGH SUCH EXCLUSION COULD NOT BE
ACCOMPLISHED WITHIN THE LIMITS OF THE SAME KIND OF DUE PROCESS THAT IS
ACCORDED TO OTHER PEOPLE, HOW IS ANY LAWYER GOING TO BE ABLE TO TAKE A
POSITION OR DEFEND A CAUSE THAT IS LIKELY TO INCUR THE DISPLEASURE OF
THE JUDGES OR WHATEVER GROUP OF HIS FELLOW LAWYERS HAPPENS TO HAVE
AUTHORITY OVER HIM?  (FN38)  THE ANSWER IS THAT IN MANY CASES HE IS NOT
GOING TO BE ABLE TO TAKE SUCH A POSITION OR TO DEFEND SUCH A CAUSE AND
THE PUBLIC WILL BE DEPRIVED OF JUST THOSE LEGAL SERVICES THAT, IN THE
PAST, HAVE GIVEN LAWYERS THEIR MOST BONA FIDE CLAIM TO GREATNESS. 

IT MAY BE THAT PETITIONER HAS BEEN GUILTY OF SOME VIOLATION OF LAW
WHICH IF LEGALLY PROVED WOULD JUSTIFY HIS DISBARMENT.  IT IS ONLY FAIR
TO SAY, HOWEVER, THAT THERE IS NOT ONE SHRED OF EVIDENCE IN THIS RECORD
TO SHOW SUCH A VIOLATION.  AND PETITIONER IS ENTITLED TO EVERY
PRESUMPTION OF INNOCENCE UNTIL AND UNLESS SUCH A VIOLATION HAS BEEN
CHARGED AND PROVED IN A PROCEEDING IN WHICH HE, LIKE OTHER CITIZENS, IS
ACCORDED THE PROTECTION OF ALL OF THE SAFEGUARDS GUARANTEED BY THE
REQUIREMENTS OF EQUAL PROTECTION AND DUE PROCESS OF LAW.  THIS BELIEF
THAT LAWYERS TOO ARE ENTITLED TO DUE PROCESS AND EQUAL PROTECTION OF
THE LAWS WILL NOT, I HOPE, BE REGARDED AS TOO NEW OR TOO NOVEL. 

THE GREAT IMPORTANCE OF OBSERVING DUE PROCESS OF LAW, THOUGH TO SOME
EXTENT FAMILIAR TO LAWYERS AND LAYMEN ALIKE, IS SOMETIMES DIFFICULT FOR
LAYMEN TO UNDERSTAND.  COURTS HAVE OFTEN HAD TO RELY UPON LAWYERS AND
THEIR FAMILIARITY WITH THE WISDOM UNDERLYING THESE PROCESSES TO EXPLAIN
THE NEED FOR TIME-CONSUMING PROCEDURES TO IMPATIENT LAYMEN.  SUCH
IMPATIENCE IS UNDERSTANDABLE WHEN IT COMES FROM LAYMEN - BUT IT IS
REGRETTABLE TO FIND IT IN LAWYERS.  THE RESPECT FOR A RULE OF LAW
ADMINISTERED THROUGH DUE PROCESS OF LAW IS THE VERY HALLMARK OF A
LAWYER - WITHOUT IT HE CANNOT KEEP FAITH WITH HIS PROFESSION. 

FN1  360 U.S. 287.  THE MAJORITY THERE HELD THAT WITNESSES BEFORE THE
INQUIRY COULD CONSTITUTIONALLY BE DEPRIVED OF A PUBLIC HEARING AND THE
ASSISTANCE OF COUNSEL.  BUT CF.  CHAMBERS V. FLORIDA, 309 U.S. 227,
237:  "THE DETERMINATION TO PRESERVE AN ACCUSED'S RIGHT TO PROCEDURAL
DUE PROCESS SPRANG IN LARGE PART FROM KNOWLEDGE OF THE HISTORICAL TRUTH
THAT THE RIGHTS AND LIBERTIES OF PEOPLE ACCUSED OF CRIME COULD NOT BE
SAFELY ENTRUSTED TO SECRET INQUISITORIAL PROCESSES." 

FN2  MATTER OF COHEN, 7 N.Y.2D 488, 495, 166 N.E.2D 672, 675. 

FN3  IN MY JUDGMENT, PETITIONER'S RELIANCE UPON HIS FEDERAL PRIVILEGE
AGAINST SELF-INCRIMINATION UNDER THE FIFTH AND FOURTEENTH AMENDMENTS IS
SUFFICIENTLY SHOWN BY THIS WHOLE RECORD TO REQUIRE THE CONSIDERATION OF
THAT QUESTION BY THIS COURT.  AS THE MAJORITY POINTS OUT, PETITIONER
EXPRESSLY ASSERTED THAT PRIVILEGE BEFORE THE COURT CONDUCTING THE
INQUIRY.  SINCE THAT TIME IT IS TRUE THAT HE HAS NOT ALWAYS SPELLED OUT
WITH METICULOUS SPECIFICITY THIS SELF-INCRIMINATION CLAIM UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS, BUT HE HAS CONSISTENTLY AND REPEATEDLY
URGED THAT HIS DISBARMENT VIOLATES THE FOURTEENTH AMENDMENT.  AND THE
RECORD SHOWS THROUGHOUT THAT THE WHOLE CONTROVERSY HAS HINGED AROUND
THE QUESTION OF THE POWER OF THE STATE, UNDER BOTH THE STATE AND THE
FEDERAL CONSTITUTIONS, TO FORCE HIM TO ANSWER THE QUESTIONS HE HAD BEEN
ASKED AT THE INQUIRY.  UNDER THESE CIRCUMSTANCES, I CANNOT ALLOW TO
PASS UNNOTICED THE VIOLATION WHICH I THINK HAS OCCURRED WITH RESPECT TO
PETITIONER'S RIGHTS UNDER THE FIFTH AMENDMENT.  CF. BOYNTON V.
VIRGINIA, 364 U.S. 454, 457.  WHILE THE COURT SEEMS TO INTIMATE AN
OPPOSITE VIEW, ITS OPINION APPEARS TO ME ACTUALLY TO PASS UPON THIS
FEDERAL CONTENTION. 

FN4  MATTER OF GRAE, 282 N.Y. 428, 435, 26 N.E.2D 963, 967. 

FN5  7 N.Y.2D, AT 496, 116 N.E.2D, AT 676.  THE CASES RELIED UPON
WERE:  LERNER V. CASEY, 357 U.S. 468; BEILAN V. BOARD OF EDUCATION, 357
U.S. 399; NELSON V. COUNTY OF LOS ANGELES, 362 U.S. 1. 

FN6  THE MAJORITY HAS NOT EVEN BOTHERED EXPRESSLY TO "STRIKE A
BALANCE" IN THESE CASES APPARENTLY ON THE THEORY THAT THE VALUE OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION IS SO SMALL THAT IT CAN BE
"OUTWEIGHED" BY ANY COUNTERVAILING GOVERNMENTAL INTEREST.  SEE, E.G.,
NELSON V. COUNTY OF LOS ANGELES, SUPRA, AT 7-8:  "NOR DO WE THINK THAT
THIS DISCHARGE IS VITIATED BY ANY DETERRENT EFFECT THAT CALIFORNIA'S
LAW MIGHT HAVE HAD ON GLOBE'S EXERCISE OF HIS FEDERAL CLAIM OF
PRIVILEGE.  THE STATE MAY NEVERTHELESS LEGITIMATELY PREDICATE DISCHARGE
ON REFUSAL TO GIVE INFORMATION TOUCHING ON THE FIELD OF SECURITY." 

FN7  MY VIEWS OF THIS "BALANCING" PROCESS HAVE BEEN SET OUT AT LENGTH
IN THE COMPANION CASES, KONIGSBERG V. STATE BAR OF CALIFORNIA, DECIDED
TODAY, ANTE, P. 56, AT 62-71, 75, AND IN RE ANASTAPLO, DECIDED TODAY,
ANTE, P. 97, AT 109-113.  SEE ALSO THE OPINIONS CITED AT N. 10 IN MY
DISSENTING OPINION IN KONIGSBERG.    FN8  SEE, E.G., WILKINSON V.
UNITED STATES, 365 U.S. 399; BRADEN V. UNITED STATES, 365 U.S. 431;
TIMES FILM CORP. V. CITY OF CHICAGO, 365 U.S. 43; UPHAUS V. WYMAN, 364
U.S. 388; BARENBLATT V. UNITED STATES, 360 U.S. 109; UPHAUS V. WYMAN,
360 U.S. 72. 

FN9  IT IS TRUE THAT SOME INROADS HAVE ALREADY BEEN MADE INTO THE
FIFTH AMENDMENT, FOR BOTH LERNER V. CASEY, SUPRA, AND NELSON V. COUNTY
OF LOS ANGELES, SUPRA, RESTED PARTLY UPON A WILLINGNESS OF A MAJORITY
OF THIS COURT TO "BALANCE" AWAY THE FULL PROTECTION OF THAT AMENDMENT. 
FN10  THIS CONCLUSION IS REACHED PRIMARILY ON THE BASIS OF AGREEMENT
WITH THE DISSENTING OPINION OF MR. JUSTICE HARLAN IN TWINING V. NEW
JERSEY, 211 U.S. 78, 114-127.  BUT EVEN IF THAT CASE WERE RIGHTLY
DECIDED, IT WOULD NOT PROVIDE SUPPORT FOR THE DECISION HERE.  FOR THE
ISSUE WITH REGARD TO THE PRIVILEGE AGAINST SELF-INCRIMINATION HERE IS
QUITE DIFFERENT FROM THE ISSUE POSED IN THE TWINING CASE.  IN THAT CASE
THE ONLY QUESTION BEFORE THE COURT WAS WHETHER COMMENT UPON A
DEFENDANT'S FAILURE TO TAKE THE STAND IN HIS OWN DEFENSE WAS
CONSTITUTIONALLY PERMISSIBLE. 

FN11  7 N.Y.2D, AT 495, 166 N.E.2D, AT 675. 

FN12  DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518, 581.  SEE ALSO
VANZANT V. WADDEL, 2 YERGER 260, IN WHICH JUDGE CATRON, LATER MR.
JUSTICE CATRON, SPEAKING FOR THE SUPREME COURT OF TENNESSEE, OBSERVED:
"THE RIGHT TO LIFE, LIBERTY AND PROPERTY, OF EVERY INDIVIDUAL, MUST
STAND OR FALL BY THE SAME RULE OR LAW THAT GOVERNS EVERY OTHER MEMBER
OF THE BODY POLITIC, OR 'LAND,' UNDER SIMILAR CIRCUMSTANCES; AND EVERY
PARTIAL OR PRIVATE LAW, WHICH DIRECTLY PROPOSES TO DESTROY OR AFFECT
INDIVIDUAL RIGHTS, OR DOES THE SAME THING BY AFFORDING REMEDIES LEADING
TO SIMILAR CONSEQUENCES, IS UNCONSTITUTIONAL AND VOID."  ID., AT 270. 
THE VIEWS EXPRESSED BY WEBSTER AND JUDGE CATRON GO BACK AT LEAST AS FAR
AS 1215 AND MAGNA CHARTA, IN WHICH IT WAS PROVIDED:  "NO FREE MAN SHALL
BE TAKEN OR IMPRISONED, OR DISSEISED, OR OUTLAWED, OR EXILED, OR
ANYWISE DESTROYED; NOR SHALL WE GO UPON HIM NOR SEND UPON HIM, BUT BY
THE LAWFUL JUDGMENT OF HIS PEERS OR BY THE LAW OF THE LAND." 

FN13  I RECOGNIZE, OF COURSE, THAT NEW YORK ALSO SINGLES OUT OTHER
GROUPS FOR SPECIAL TREATMENT WITH REGARD TO CERTAIN CONSTITUTIONAL
PRIVILEGES.  SEE BARSKY V. BOARD OF REGENTS, 347 U.S. 442.  THAT
PRACTICE, WHICH I REGARD AS ALSO CLEARLY UNCONSTITUTIONAL (SEE MY
DISSENTING OPINION IN THAT CASE, ID., AT 456-467), DOES NOT AFFECT THE
ARGUMENT HERE.  FOR DISCRIMINATION AGAINST ONE GROUP CANNOT BE
JUSTIFIED ON THE GROUND THAT IT IS ALSO PRACTICED AGAINST ANOTHER. 

FN14  CF. GRIFFIN V. ILLINOIS, 351 U.S. 12.  IN THAT CASE, WE SAID:
"IN THIS TRADITION (THE TRADITION OF MAGNA CHARTA), OUR OWN
CONSTITUTIONAL GUARANTIES OF DUE PROCESS AND EQUAL PROTECTION BOTH CALL
FOR PROCEDURES IN CRIMINAL TRIALS WHICH ALLOW NO INVIDIOUS
DISCRIMINATIONS BETWEEN PERSONS AND DIFFERENT GROUPS OF PERSONS."  ID.,
AT 17. 

FN15  THE FOLLOWING EXCERPT FROM HALLAM, THE CONSTITUTIONAL HISTORY
OF ENGLAND, VOL. I (2D ED.), AT 477, INDICATES THE EXTENT TO WHICH THIS
SORT OF THING WAS DONE IN SEVENTEENTH-CENTURY ENGLAND: "TWO PURITANS
HAVING BEEN COMMITTED BY THE HIGH-COMMISSION COURT, FOR REFUSING THE
OATH EX-OFFICIO, EMPLOYED MR. FULLER, A BENCHER OF GRAY'S INN, TO MOVE
FOR THEIR HABEAS CORPUS; WHICH HE DID ON THE GROUND THAT THE HIGH
COMMISSIONERS WERE NOT EMPOWERED TO COMMIT ANY OF HIS MAJESTY'S
SUBJECTS TO PRISON.  THIS BEING RECKONED A HEINOUS OFFENCE, HE WAS
HIMSELF COMMITTED, AT BANCROFT'S INSTIGATION, (WHETHER BY THE KING'S
PERSONAL WARRANT, OR THAT OF THE COUNCIL-BOARD, DOES NOT APPEAR) AND
LAY IN GAOL TO THE DAY OF HIS DEATH  ...  ." 

FN16  HALLAM, OP. CIT., SUPRA, N. 15, AT 316, MAKES THE FOLLOWING
OBSERVATION WITH REGARD TO THE DUTY OF COOPERATION IMPOSED UPON ENGLISH
JURIES:  "THERE IS NO ROOM FOR WONDER AT ANY VERDICT THAT COULD BE
RETURNED BY A JURY, WHEN WE CONSIDER WHAT MEANS THE GOVERNMENT
POSSESSED OF SECURING IT. THE SHERIFF RETURNED A PANNEL, EITHER
ACCORDING TO EXPRESS DIRECTIONS, OF WHICH WE HAVE PROOFS, OR TO WHAT HE
JUDGED HIMSELF OF THE CROWN'S INTENTION AND INTEREST.  IF A VERDICT HAD
GONE AGAINST THE PROSECUTION IN A MATTER OF MOMENT, THE JURORS MUST
HAVE LAID THEIR ACCOUNT WITH APPEARING BEFORE THE STAR-CHAMBER; LUCKY,
IF THEY SHOULD ESCAPE, ON HUMBLE RETRACTATION, WITH SHARP WORDS,
INSTEAD OF ENORMOUS FINES AND INDEFINITE IMPRISONMENT." 

FN17  JUDGE CATRON EXPRESSED THE SAME POINT IN VANZANT V. WADDEL,
SUPRA:  "THE IDEA OF A PEOPLE THROUGH THEIR REPRESENTATIVES, MAKING
LAWS WHEREBY ARE SWEPT AWAY THE LIFE, LIBERTY AND PROPERTY OF ONE OR A
FEW CITIZENS, BY WHICH NEITHER THE REPRESENTATIVES NOR THEIR OTHER
CONSTITUENTS ARE WILLING TO BE BOUND, IS TOO ODIOUS TO BE TOLERATED IN
ANY GOVERNMENT WHERE FREEDOM HAS A NAME.  SUCH ABUSES RESULTED IN THE
ADOPTION OF MAGNA CHARTA IN ENGLAND, SECURING THE SUBJECT AGAINST
ODIOUS EXCEPTIONS, WHICH IS, AND FOR CENTURIES HAS BEEN THE FOUNDATION
OF ENGLISH LIBERTY.  ITS INFRACTION WAS A LEADING CAUSE WHY WE
SEPARATED FROM THAT COUNTRY, AND ITS VALUE AS A FUNDAMENTAL RULE FOR
THE PROTECTION OF THE CITIZEN AGAINST LEGISLATIVE USURPATION, WAS THE
REASON OF ITS ADOPTION AS PART OF OUR CONSTITUTION."  2 YERGER, AT 270
271. 

FN18  SEE THE TRIAL OF JOHN PETER ZENGER, 17 HOWELL'S STATE TRIALS
675.  ZENGER, A NEWSPAPER PUBLISHER, HAD SEEN FIT TO CRITICIZE THE
GOVERNMENT AND WAS BEING TRIED FOR PRINTING "MANY THINGS DEROGATORY OF
THE DIGNITY OF HIS MAJESTY'S GOVERNMENT, REFLECTING UPON THE
LEGISLATURE, UPON THE MOST CONSIDERABLE PERSONS IN THE MOST
DISTINGUISHED STATIONS IN THE PROVINCE, AND TENDING TO RAISE SEDITIONS
AND TUMULTS AMONG THE PEOPLE THEREOF."  ID., AT 678. 

FN19  ID., AT 686-687.  THE JUDGES THERE PREFERRED THE LABEL OF
"CONTEMPT" TO THAT OF "FAILURE TO CO-OPERATE." 

FN20  SEE DICTIONARY OF AMERICAN BIOGRAPHY, VOL. XX, AT 648-649, FOR
THE STORY OF HAMILTON'S SUCCESSFUL DEFENSE OF ZENGER. 

FN21  CF. CHAMBERS V. FLORIDA, 309 U.S. 227, 235-241, ESPECIALLY AT
237, N. 10. 

FN22  THAT COMMAND, OF COURSE, ORIGINALLY APPLIED ONLY TO THE FEDERAL
GOVERNMENT.  BARRON V. BALTIMORE, 7 PET. 243.  BUT WITH THE ADOPTION IN
1868 OF THE FOURTEENTH AMENDMENT, THE SAME COMMAND, TOGETHER WITH THE
RELATED REQUIREMENT OF EQUAL PROTECTION OF THE LAWS, BECAME BINDING
UPON THE STATES. 

FN23  THE MAJORITY ASSERTS THAT IT IS NOT ONLY "THE EARLY BEGINNING
OF THE PRACTICE OF JUDICIAL INQUIRY INTO ATTORNEY PRACTICES  ...  BUT
ALSO THE LONG LIFE OF THAT MODE OF PROCEDURE" THAT JUSTIFIES ITS
DECISION HERE.  THIS ARGUMENT - THAT CONSTITUTIONAL RIGHTS ARE TO BE
DETERMINED BY LONG-STANDING PRACTICES RATHER THAN THE WORDS OF THE
CONSTITUTION - IS NOT, AS THE MAJORITY POINTS OUT, A NEW ONE.  IT LAY
AT THE BASIS OF TWO OF THIS COURT'S MORE RENOWNED DECISIONS - DRED
SCOTT V. SANDFORD, 19 HOW.  393, AND PLESSY V. FERGUSON, 163 U.S. 537. 
BUT CF. BROWN V. BOARD OF EDUCATION, 347 U.S. 483.  THE NOTION THAT A
VIOLATION OF THE PLAIN LANGUAGE OF THE CONSTITUTION CAN GAIN LEGAL
STATURE BY LONG-CONTINUED PRACTICE IS NOT ONE I CAN SUBSCRIBE TO.  A
MAJORITY GROUP, AS DE TOCQUEVILLE OBSERVED, TOO OFTEN "CLAIMS THE RIGHT
NOT ONLY OF MAKING THE LAWS, BUT OF BREAKING THE LAWS IT HAS MADE."  DE
TOCQUEVILLE, DEMOCRACY IN AMERICA, VOL. 1, AT 261. 

FN24  314 U.S. 252, 264. 

FN25  THIS IMPLICATION STEMS FROM THE MAJORITY'S RELIANCE UPON ITS
OPINIONS IN THE COMPANION CASES, KONIGSBERG V. STATE BAR OF CALIFORNIA,
ANTE, P. 36, AND IN RE ANASTAPLO, ANTE, P. 82.  IF, AS THE MAJORITY
SAYS, THERE IS NO CONSTITUTIONAL DIFFERENCE BETWEEN ADMISSION AND
DISBARMENT PROCEEDINGS, IT SEEMS CLEAR THAT LAWYERS MAY NOW BE CALLED
IN BY A STATE AND FORCED TO DISCLOSE THEIR POLITICAL ASSOCIATIONS ON A
PENALTY OF DISBARMENT IF THEY REFUSE TO DO SO. 

FN26  THE SAME POINT WAS PERSUASIVELY URGED BY MR. JUSTICE FLOYD OF
FLORIDA SUPREME COURT IN A CONCURRING OPINION WHERE THAT COURT REFUSED
TO ADOPT THE RULE ADOPTED BY THE NEW YORK COURT IN THIS CASE.  SEE
SHEINER V. STATE, 82 SO. 2D 657, 664. 

FN27  AS SHOWN IN NOTES 15 AND 16, SUPRA, THE SAME ARGUMENTS USED TO
JUSTIFY THE DECISION IN THIS CASE WOULD ALSO BE APPLICABLE TO THE
SUPPOSED CASE FOR IT CERTAINLY CANNOT BE DENIED THAT SUCH A PRACTICE
HAD THE "SANCTION" OF ENGLISH HISTORY. 

FN28  HALLAM, OP. CIT., SUPRA, N. 15, AT 287, REPORTS THE FOLLOWING
EVENT IN EARLY SEVENTEENTH-CENTURY ENGLAND:  "THE OATH EX OFFICIO,
BINDING THE TAKER TO ANSWER ALL QUESTIONS THAT SHOULD BE PUT TO HIM,
INASMUCH AS IT CONTRAVENED THE GENEROUS MAXIM OF ENGLISH LAW THAT NO
ONE IS OBLIGED TO CRIMINATE HIMSELF, PROVOKED VERY JUST ANIMADVERSION. 
MORICE, ATTORNEY OF THE COURT OF WARDS, NOT ONLY ATTACKED ITS LEGALITY
WITH ARGUMENTS OF NO SLIGHT FORCE, BUT INTRODUCED A BILL TO TAKE IT
AWAY.  THIS WAS ON THE WHOLE WELL RECEIVED BY THE HOUSE; AND SIR
FRANCIS KNOLLYS, THE STANCH ENEMY OF EPISCOPACY, THOUGH IN HIGH OFFICE,
SPOKE IN ITS FAVOUR.  BUT THE QUEEN PUT A STOP TO THE PROCEEDING, AND
MORICE LAY SOME TIME IN PRISON FOR HIS BOLDNESS." 

FN29  THIS MUCH IS MADE INDISPUTABLY CLEAR IN THE MAJORITY OPINION IN
KONIGSBERG V. STATE BAR OF CALIFORNIA, SUPRA, AT 49-51. 

FN30  341 U.S. 494. 

FN31  SEE SACHER V. UNITED STATES, 343 U.S. 1, 19 (DISSENTING
OPINION).  IN MY JUDGMENT THE SACHER CASE IS NOT ALTOGETHER UNLIKE THE
CASE OF THE LAWYER FULLER DISCUSSED IN N. 15, SUPRA. 

FN32  IN RE SAWYER, 360 U.S. 622.  CF. TRIAL OF JOHN PETER ZENGER,
SUPRA. 

FN33  KONIGSBERG V. STATE BAR OF CALIFORNIA, DECIDED TODAY, SUPRA; IN
RE ANASTAPLO, DECIDED TODAY, SUPRA.  THE PRESSURES BEING BROUGHT UPON
KONIGSBERG AND ANASTAPLO ARE SUBTLER THAN THOSE BROUGHT UPON SUCH
PEOPLE AS MORICE (SEE NOTE 28), BUT THEY ARE NO LESS REAL. 

FN34  THUS, I AM IN COMPLETE AGREEMENT WITH THE MAJORITY THAT, ON A
CONSTITUTIONAL LEVEL, "IT IS CERTAINLY NOT BEYOND THE REALM OF
PERMISSIBLE STATE CONCERNS TO CONCLUDE THAT TOO MUCH ATTENTION TO THE
BUSINESS OF GETTING CLIENTS MAY BE INCOMPATIBLE WITH A SUFFICIENT
DEVOTION TO DUTIES WHICH A LAWYER OWES TO THE COURT, OR THAT THE
'PAYMENT OF AWARDS TO PERSONS BRINGING IN LEGAL BUSINESS' IS
INCONSISTENT WITH THE PERSONALLY DISINTERESTED POSITION A LAWYER SHOULD
MAINTAIN."  BUT THAT STATE CONCERN IN PREVENTING "AMBULANCE CHASING" IS
CERTAINLY NO GREATER THAN THE STATE CONCERN IN PREVENTING ANY OTHER
ACTIVITY WHICH IT HAS SEEN FIT TO MAKE A CRIME.  SUSPECTED "AMBULANCE
CHASERS" SHOULD BE NO MORE SUBJECT TO THE DEPRIVATION OF DUE PROCESS
AND EQUAL PROTECTION THAT STEMS FROM "PROCEDURES RESULTING IN GREATER
PREVENTIVE CERTAINTY" THAN ARE SUSPECTED MURDERERS.  INDEED, IT SEEMS
TO ME THAT IF THE QUESTION IS TO BE DECIDED ON THE BASIS OF "STATE
CONCERN," THERE IS NO MORE JUSTIFICATION FOR APPLYING SUCH SUMMARY
PROCEDURES TO "AMBULANCE CHASING" THAN FOR APPLYING THEM TO ANY OTHER
VARIETY OF CRIME. 

FN35  CF. BARSKY V. BOARD OF REGENTS, SUPRA, AT 459, 472-474
(DISSENTING OPINIONS). 

FN36  HUDSON V. SLADE, 3 FOSTER AND FINLASON (Q.B.)  390, 411. 

FN37  THE TRUE NATURE OF THE UNDERLYING CONTROVERSY IN THIS CASE, AS
A CONTROVERSY BETWEEN ECONOMICALLY COMPETING GROUPS OF LAWYERS, IS
SHOWN BY THE FACT THAT FOUR DIFFERENT ASSOCIATIONS OF ATTORNEYS FILED
BRIEFS AS AMICI CURIAE IN THE PRESENT PROCEEDING - TWO FAVORABLE TO
PETITIONER AND TWO FAVORABLE TO RESPONDENT. 

FN38  THE IMMENSE DANGER OF DEPARTURES FROM DUE PROCESS TO LAWYERS
WHO REPRESENT UNPOPULAR CAUSES IS DRAMATICALLY ILLUSTRATED IN SACHER V.
UNITED STATES, SUPRA.  CF. UNITED STATES EX REL.  GOLDSBY V. HARPOLE,
263 F.2D 71, 82, FOR A DISCUSSION OF ANOTHER SITUATION IN WHICH THE
INDEPENDENCE OF THE LAWYER MAY BE CRUCIAL TO HIS ABILITY ADEQUATELY TO
DEFEND HIS CLIENT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE PRIVILEGE AGAINST SELF-INCRIMINATION CONTAINED IN THE FIFTH
AMENDMENT HAS AN HONORABLE HISTORY AND SHOULDD NOT BE DOWNGRADED AS IT
IS TODAY.  LEVI LINCOLN, ATTORNEY GENERAL, OBJECTED IN THE HEARING OF
MARBURY V. MADISON, 1 CRANCH 137, 144, TO ANSWERING CERTAIN QUESTIONS
ON THE GROUND THAT THE ANSWERS MIGHT TEND TO CRIMINATE HIM.  (FN1)  SEE
WARREN, THE SUPREME COURT IN UNITED STATES HISTORY (1937), VOL. I, P.
237.  THE COURT, THEN HEADED BY CHIEF JUSTICE MARSHALL, RESPECTED THE
PRIVILEGE.  (FN2)  NEITHER HE NOR ANY JUSTICE EVEN INTIMATED THAT IT
WAS IMPROPER FOR A LAWYER TO INVOKE HIS CONSTITUTIONAL RIGHTS.  THEY
KNEW THAT THE FIFTH AMENDMENT WAS DESIGNED TO PROTECT THE INNOCENT AS
WELL AS THE GUILTY.  WHAT THE COURT DID THAT DAY REFLECTED THE ATTITUDE
EXPRESSED BY THE COURT IN 1956 IN SLOCHOWER V. BOARD OF EDUCATION, 350
U.S. 551, 557-558, WHEN WE SAID, "THE PRIVILEGE AGAINST SELF
INCRIMINATION WOULD BE REDUCED TO A HOLLOW MOCKERY IF ITS EXERCISE
COULD BE TAKEN AS EQUIVALENT EITHER TO A CONFESSION OF GUILT OR A
CONCLUSIVE PRESUMPTION OF PERJURY  ...  . THE PRIVILEGE SERVES TO
PROTECT THE INNOCENT WHO OTHERWISE MIGHT BE ENSNARED BY AMBIGUOUS
CIRCUMSTANCES." 

THE LAWYER IN THIS CASE IS IN THE SAME NEED OF THAT PROTECTION AS WAS
THE ATTORNEY GENERAL IN MARBURY V. MADISON AND THE PROFESSOR IN THE
SLOCHOWER CASE. 

THE AMERICAN PHILOSOPHY OF THE FIFTH AMENDMENT WAS DYNAMICALLY STATED
BY PRESIDENT ANDREW JACKSON WHO REPLIED AS FOLLOWS TO A HOUSE COMMITTEE
INVESTIGATING THE SPOILS SYSTEM: 

"YOU REQUEST MYSELF AND THE HEADS OF THE DEPARTMENTS TO BECOME OUR
OWN ACCUSERS, AND TO FURNISH THE EVIDENCE TO CONVICT OURSELVES."  H.R.
REP. NO. 194, 24TH CONG., 2D SESS., P. 31. 

PRESIDENT GRANT TOOK LONG ABSENCES FROM WASHINGTON, D.C., FOR
RECREATIONAL PURPOSES.  A HOUSE RESOLUTION ASKED GRANT TO LIST ALL HIS
EXECUTIVE ACTS, SINCE HIS ELECTION, WHICH HAD BEEN "PERFORMED AT A
DISTANCE FROM THE SEAT OF GOVERNMENT ESTABLISHED BY LAW," TOGETHER WITH
AN EXPLANATION OF THE NECESSITY "FOR SUCH PERFORMANCE."  GRANT
DECLINED, STATING THAT IF THE INFORMATION WAS WANTED FOR PURPOSES OF
IMPEACHMENT "  ...  IT IS ASKED IN DEROGATION OF AN INHERENT NATURAL
RIGHT, RECOGNIZED IN THIS COUNTRY BY A CONSTITUTIONAL GUARANTEE WHICH
PROTECTS EVERY CITIZEN, THE PRESIDENT AS WELL AS THE HUMBLEST IN THE
LAND, FROM BEING MADE A WITNESS AGAINST HIMSELF."  4 CONG. REC., PT. 3,
44TH CONG., 1ST SESS., P. 2999; H. JOUR., 44TH CONG., 1ST SESS., P.
917.    A FAITHFUL ACCOUNT OF THE FIFTH AMENDMENT WAS GIVEN BY SIMON H.
RIFKIND, FORMERLY A FEDERAL JUDGE IN THE SOUTHERN DISTRICT OF NEW YORK
WHO SERVED WITH DISTINCTION FROM 1941 TO 1950.  HE SAID IN AN ADDRESS
ON MAY 3, 1954:  (FN3) 

"FAR AND WIDE, CURRENCY HAS BEEN GIVEN TO WHAT I REGARD AS THE
MISCHIEVOUS DOCTRINE, THE UNCONSTITUTIONAL AND HISTORICALLY FALSE
DOCTRINE THAT THE PLEA OF THE FIFTH AMENDMENT IS AN ADMISSION OF GUILT,
AN ACT OF SUBVERSION, A BADGE OF DISLOYALTY. 

"I CONFESS THAT WHEN I HEAR THE WORDS 'FIFTH AMENDMENT COMMUNIST'
SPOKEN, I EXPERIENCE A SENSE OF REVULSION.  IN THAT PHRASE I DETECT A
DENIAL OF SEVEN CENTURIES OF CIVILIZING GROWTH IN OUR LAW, A
REPUDIATION OF THAT HIGH REGARD FOR HUMAN DIGNITY WHICH IS THE PROUD
HALLMARK OF OUR LAW.  THAT PHRASE MAKES A MOCKERY OF A PRACTICE OF
EVERY COURT IN OUR LAND - A PRACTICE WHICH IS SO WELL-ACCEPTED THAT WE
TAKE IT FOR GRANTED:  HAS ANY OF YOU EVER SEEN A PROSECUTOR CALL A
DEFENDANT TO THE WITNESS STAND?  OF COURSE NOT; YOU ARE SHOCKED, I
HOPE, AT THE SUGGESTION.  A DEFENDANT TAKES THE STAND ONLY OF HIS OWN
FREE WILL.  NOR DO WE SPEAK OF 'FIFTH AMENDMENT BURGLARS,' 'FIFTH
AMENDMENT TRAFFIC VIOLATORS,' OR 'FIFTH AMENDMENT ANTI-TRUST LAW
VIOLATORS.'  NOR, FOR THAT MATTER, WOULD I SPEAK OF 'FIFTH AND SIXTH
AMENDMENT SENATORS.'  BUT I DO SEEM TO RECALL THAT WHEN THE ACTIONS OF
A SENATOR RECENTLY CAME UNDER INVESTIGATION, HE HASTENED TO INSURE THAT
HE WOULD HAVE THE RIGHT TO CONFRONT AND CROSS-EXAMINE HIS ACCUSERS.  HE
DEMANDED THAT A STATEMENT OF THE CHARGES BE MADE AVAILABLE TO HIM, AND
HE INSISTED THAT HE BE ALLOWED TO COMPEL THE ATTENDANCE OF WITNESSES IN
HIS OWN BEHALF. 

"THIS IS NOT THE TIME TO GO INTO THE HOARY HISTORY OF THE FIFTH
AMENDMENT, BUT THIS MUCH IS CLEAR:  THE PRIVILEGE TO REMAIN SILENT WAS
REGARDED BY OUR ANCESTORS AS THE INALIENABLE RIGHT OF A FREE MAN.  TO
COMPEL A MAN TO ACCUSE HIMSELF WAS REGARDED AS A CRUELTY BENEATH THE
TOLERANCE OF CIVILIZED PEOPLE, AND IT SIMPLY IS NOT TRUE AS A MATTER OF
LAW THAT ONLY THE GUILTY ARE PRIVILEGED TO PLEAD THE FIFTH AMENDMENT. 
THE INNOCENT TOO HAVE FREQUENT OCCASION TO SEEK ITS BENEFICENT
PROTECTION." 

THERE IS NO EXCEPTION IN THE FIFTH AMENDMENT FOR LAWYERS ANY MORE
THAN THERE IS FOR PROFESSORS, PRESIDENTS, OR OTHER OFFICE HOLDERS. 

I BELIEVE THAT THE STATES ARE OBLIGATED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT TO ACCORD THE FULL REACH OF THE PRIVILEGE TO A
PERSON WHO INVOKES IT.  SEE ADAMSON V. CALIFORNIA, 332 U.S. 46, 68
(DISSENTING OPINION); SCOTT V. CALIFORNIA, 364 U.S. 471 (DISSENTING
OPINION) - A POSITION WHICH MR. JUSTICE BRENNAN TODAY STRENGTHENS AND
REAFFIRMS.  IN THE DISBARMENT PROCEEDINGS, PETITIONER RELIED NOT ONLY
ON THE STATE CONSTITUTION BUT ON THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, CONTENDING THAT IT FORBADE THE STATE'S MAKING HIS
SILENCE THE BASIS FOR HIS DISBARMENT.  I AGREE WITH THAT VIEW. 
MOREOVER, APART FROM THE FIFTH AMENDMENT, I DO NOT THINK THAT A STATE
MAY REQUIRE SELF-IMMOLATION AS A CONDITION OF RETAINING THE LICENSE OF
AN ATTORNEY.  WHEN A STATE USES PETITIONER'S SILENCE TO BRAND HIM AS
ONE WHO HAS NOT FULFILLED HIS "INHERENT DUTY AND OBLIGATION ...  AS A
MEMBER OF THE LEGAL PROFESSION," IT ADOPTS A PROCEDURE THAT DOES NOT
MEET THE REQUIREMENTS OF DUE PROCESS.  TAKING AWAY A MAN'S RIGHT TO
PRACTICE LAW IS IMPOSING A PENALTY AS SEVERE AS A CRIMINAL SANCTION,
PERHAPS MORE SO.  THE STATE SHOULD CARRY THE BURDEN OF PROVING GUILT. 
THE SHORT-CUT SANCTIONED TODAY ALLOWS PROOF OF GUILT TO BE "LESS THAN
NEGLIGIBLE."  GRUNEWALD V. UNITED STATES, 353 U.S. 391, 424. 

FN1  AS REPORTED IN THE AURORA FOR FEBRUARY 15, 1803, LEVI LINCOLN
STATED TO THE COURT "THAT IF THE COURT SHOULD UPON THE QUESTIONS BEING
SUBMITTED IN WRITING DETERMINE THAT HE WAS BOUND TO ANSWER THEM,
ANOTHER DIFFICULTY WOULD SUGGEST ITSELF UPON THE PRINCIPLES OF
EVIDENCE; HE WOULD SUPPOSE THE CASE TO ASSUME ITS MORE SERIOUS FORM, IF
IN THE COURSE OF HIS OFFICIAL DUTY THESE COMMISSIONS SHOULD HAVE COME
INTO HIS HANDS, AND THAT HE MIGHT EITHER BY ERROR OR BY INTENTION HAVE
DONE WRONG, IT WOULD NOT BE EXPECTED THAT HE SHOULD GIVE EVIDENCE TO
CRIMINATE HIMSELF.  THIS WAS AN EXTREME CASE, AND HE USED ONLY TO
IMPRESS UPON THE COURT THE NATURE OF THE PRINCIPLE IN THE STRONGEST
TERMS." 

FN2  THE COURT, AS REPORTED IN 1 CRANCH, AT 144, SAID THAT THE
ATTORNEY GENERAL WAS NOT OBLIGED "TO STATE ANY THING WHICH WOULD
CRIMINATE HIMSELF." 

FN3  RIFKIND, REFLECTIONS ON CIVIL LIBERTIES (AMERICAN JEWISH
COMMITTEE), PP. 12-13. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

I WOULD REVERSE BECAUSE I THINK THAT THE PETITIONER WAS PROTECTED BY
THE IMMUNITY FROM COMPULSORY SELF-INCRIMINATION GUARANTEED BY THE FIFTH
AMENDMENT, WHICH IN MY VIEW IS ABSORBED BY THE FOURTEENTH AMENDMENT,
AND THEREFORE IS SECURED AGAINST IMPAIRMENT BY THE STATES. 

IN BARRON V. BALTIMORE, 7 PET. 243, DECIDED IN 1833, THE COURT HELD
THAT IT WAS WITHOUT JURISDICTION TO REVIEW A JUDGMENT OF THE MARYLAND
COURT OF APPEALS WHICH DENIED AN OWNER COMPENSATION FOR HIS PRIVATE
PROPERTY TAKEN FOR PUBLIC USE.  CHIEF JUSTICE MARSHALL WROTE THAT,
CONTRARY TO THE CONTENTION OF THE OWNER, "THE PROVISION IN THE FIFTH
AMENDMENT TO THE CONSTITUTION, DECLARING THAT PRIVATE PROPERTY SHALL
NOT BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION, IS INTENDED
SOLELY AS A LIMITATION ON THE EXERCISE OF POWER BY THE GOVERNMENT OF
THE UNITED STATES, AND IS NOT APPLICABLE TO THE LEGISLATION OF THE
STATES."  THIS, HE SAID, WAS BECAUSE THE FIRST EIGHT AMENDMENTS
"CONTAIN NO EXPRESSION INDICATING AN INTENTION TO APPLY THEM TO THE
STATE GOVERNMENTS.  THIS COURT CANNOT SO APPLY THEM."  7 PET., PP. 250
251.  FOR OVER A QUARTER OF A CENTURY AFTER THE ADOPTION OF THE
FOURTEENTH AMENDMENT IN 1868, THIS HOLDING WAS INFLUENTIAL IN MANY
DECISIONS OF THE COURT WHICH REJECTED ARGUMENTS FOR THE APPLICATION TO
THE STATES OF ONE AFTER ANOTHER OF THE SPECIFIC GUARANTEES INCLUDED IN
THE FEDERAL BILL OF RIGHTS.  SEE KNAPP V. SCHWEITZER, 357 U.S. 371, 378
379, NOTE 5, WHERE THE CASES ARE COLLECTED. 

IN 1897, HOWEVER, THE COURT DECIDED CHICAGO, B.&Q.R. CO. V. CHICAGO,
166 U.S. 226.  THAT CASE ALSO CHALLENGED THE CONSTITUTIONALITY OF A
JUDGMENT OF A STATE SUPREME COURT, THAT OF ILLINOIS, ALLEGED TO HAVE
SUSTAINED A TAKING OF PRIVATE PROPERTY FOR PUBLIC PURPOSES WITHOUT JUST
COMPENSATION.  BUT THE PROPERTY OWNER COULD NOW INVOKE THE FOURTEENTH
AMENDMENT AGAINST THE STATE.  THE COURT HELD THAT THE CLAIM BASED ON
THAT AMENDMENT WAS COGNIZABLE BY THE COURT.  ON THE MERITS, THE FIRST
MR. JUSTICE HARLAN WROTE, "IN OUR OPINION, A JUDGMENT OF A STATE COURT,
EVEN IF IT BE AUTHORIZED BY STATUTE, WHEREBY PRIVATE PROPERTY IS TAKEN
FOR THE STATE OR UNDER ITS DIRECTION FOR PUBLIC USE, WITHOUT
COMPENSATION MADE OR SECURED TO THE OWNER, IS, UPON PRINCIPLE AND
AUTHORITY, WANTING IN THE DUE PROCESS OF LAW REQUIRED BY THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES, AND THE AFFIRMANCE
OF SUCH JUDGMENT BY THE HIGHEST COURT OF THE STATE IS A DENIAL BY THAT
STATE OF A RIGHT SECURED TO THE OWNER BY THAT INSTRUMENT."  166 U.S.,
P. 241.  THUS THE COURT, IN FACT IF NOT IN TERMS, APPLIED THE FIFTH
AMENDMENT'S JUST-COMPENSATION REQUIREMENT TO THE STATES, FINDING IN THE
FOURTEENTH AMENDMENT A BASIS WHICH CHIEF JUSTICE MARSHALL IN BARRON
FOUND LACKING ELSEWHERE IN THE CONSTITUTION. 

BUT IF SUITORS IN STATE CASES WHO INVOKED THE PROTECTION OF
INDIVIDUAL GUARANTEES OF THE BILL OF RIGHTS WERE NO LONGER TO BE TURNED
AWAY BY THE COURT WITH MARSHALL'S SUMMARY "THIS COURT CANNOT SO APPLY
THEM," NEITHER WAS THE COURT TO GIVE ENCOURAGEMENT THAT ALL SPECIFICS
IN THE FEDERAL LIST WOULD BE APPLIED AS WAS THE JUST COMPENSATION
CLAUSE.  ALTHOUGH THERE WERE JUSTICES AS EARLY AS 1892, SEE O'NEIL V.
VERMONT, 144 U.S. 323, 337, 366 (DISSENTING OPINIONS), AS THERE ARE
JUSTICES TODAY, SEE DISSENT OF MR. JUSTICE DOUGLAS HEREIN AND ADAMSON
V. CALIFORNIA, 332 U.S. 46, 68 (DISSENTING OPINION), URGING THE VIEW
THAT THE FOURTEENTH AMENDMENT CARRIED OVER INTACT THE FIRST EIGHT
AMENDMENTS AS LIMITATIONS ON THE STATES, THE COURSE OF DECISIONS HAS
NOT SO FAR FOLLOWED THAT VIEW.  ADDITIONAL SPECIFIC GUARANTEES HAVE,
HOWEVER, BEEN APPLIED TO THE STATES.  FOR EXAMPLE, WHILE AS RECENTLY AS
1922, PRUDENTIAL INS.  CO. V. CHEEK, 259 U.S. 530, 543, THE COURT HAD
SAID THAT THE FOURTEENTH AMENDMENT DID NOT MAKE THE PROTECTIONS OF THE
FIRST AMENDMENT BINDING ON THE STATES, DECISIONS SINCE 1925 HAVE
EXTENDED AGAINST STATE POWER THE FULL PANOPLY OF THE FIRST AMENDMENT'S
PROTECTIONS FOR RELIGION, SPEECH, PRESS, ASSEMBLY, AND PETITION.  SEE,
E.G., GITLOW V. NEW YORK, 268 U.S.  652, 666; CANTWELL V. CONNECTICUT,
310 U.S. 296, 303; WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE,
319 U.S. 624; NEAR V. MINNESOTA EX REL. OLSON, 283 U.S. 697, 707;
DEJONGE V. OREGON, 299 U.S. 353, 364; BRIDGES V. CALIFORNIA, 314 U.S.
252, 277.  THE VIEW OCCASIONALLY EXPRESSED THAT THE FREEDOM OF SPEECH
AND THE PRESS MAY BE SECURED BY THE FOURTEENTH AMENDMENT LESS BROADLY
THAN IT IS SECURED BY THE FIRST, SEE BEAUHARNAIS V. ILLINOIS, 343 U.S.
250, 288 (DISSENTING OPINION); ROTH V. UNITED STATES, 354 U.S. 476, 505
506 (SEPARATE OPINION); SMITH V. CALIFORNIA, 361 U.S. 147, 169
(SEPARATE OPINION), HAS NEVER PERSUADED EVEN A SUBSTANTIAL MINORITY OF
THE COURT.  AGAIN, AFTER SAYING IN 1914 THAT "THE FOURTH AMENDMENT IS
NOT DIRECTED TO INDIVIDUAL MISCONDUCT OF STATE  ... OFFICIALS.  ITS
LIMITATIONS REACH THE FEDERAL GOVERNMENT AND ITS AGENCIES," WEEKS V.
UNITED STATES, 232 U.S. 383, 398, THE COURT HELD IN 1949 THAT "THE
SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY INTRUSION BY THE POLICE
...  IS  ...  IMPLICIT IN 'THE CONCEPT OF ORDERED LIBERTY' AND AS SUCH
ENFORCEABLE AGAINST THE STATES  ...  ."  WOLF V. COLORADO, 338 U.S. 25,
27-28; AND SEE ELKINS V. UNITED STATES, 364 U.S. 206. 

THIS APPLICATION OF SPECIFIC GUARANTEES TO THE STATES HAS BEEN
ATTENDED BY DENIALS THAT THIS IS WHAT IN FACT IS BEING DONE.  THE
INSISTENCE HAS BEEN THAT THE APPLICATION TO THE STATES OF A SAFEGUARD
EMBODIED IN THE FIRST EIGHT AMENDMENTS IS NOT MADE "BECAUSE THOSE
RIGHTS ARE ENUMERATED IN THE FIRST EIGHT AMENDMENTS, BUT BECAUSE THEY
ARE OF SUCH A NATURE THAT THEY ARE INCLUDED IN THE CONCEPTION OF DUE
PROCESS OF LAW."  TWINING V. NEW JERSEY, 211 U.S. 78, 99.  IN OTHER
WORDS, DUE PROCESS IS SAID TO BE INFUSED WITH "AN INDEPENDENT POTENCY"
NOT RESTING UPON THE BILL OF RIGHTS, ADAMSON V. CALIFORNIA, 332 U.S.
46, 66 (CONCURRING OPINION).  IT IS STRANGE THAT THE COURT SHOULD NOT
HAVE BEEN ABLE TO DETECT THIS CHARACTERISTIC IN A SINGLE SPECIFIC WHEN
IT REJECTED THE APPLICATION TO THE STATES OF VIRTUALLY EVERY ONE OF
THEM IN THE THREE DECADES FOLLOWING THE ADOPTION OF THE FOURTEENTH
AMENDMENT.  SINCE "FEW PHRASES OF THE LAW ARE SO ELUSIVE OF EXACT
APPREHENSION AS ...  DUE PROCESS OF LAW  ...  AND  ...  ITS FULL
MEANING SHOULD BE GRADUALLY ASCERTAINED BY THE PROCESS OF INCLUSION AND
EXCLUSION IN THE COURSE OF THE DECISIONS OF CASES AS THEY ARISE,"
TWINING V.  NEW JERSEY, SUPRA, AT 99-100, THIS FORMULATION HAS BEEN A
CONVENIENT DEVICE FOR LEAVING THE COURT FREE TO SELECT FOR APPLICATION
TO THE STATES SOME OF THE RIGHTS SPECIFICALLY MENTIONED IN THE FIRST
EIGHT AMENDMENTS, AND TO REJECT OTHERS.  BUT SURELY IT BLINKS REALITY
TO PRETEND THAT THE SPECIFIC SELECTED FOR APPLICATION IS NOT REALLY
BEING APPLIED.  MR. JUSTICE CARDOZO MORE ACCURATELY AND FRANKLY
DESCRIBED WHAT HAPPENS WHEN HE SAID IN PALKO V. CONNECTICUT, 302 U.S.
319, 326, THAT GUARANTEES SELECTED BY THE COURT "HAVE BEEN TAKEN OVER
FROM THE EARLIER ARTICLES OF THE FEDERAL BILL OF RIGHTS AND BROUGHT
WITHIN THE FOURTEENTH AMENDMENT BY A PROCESS OF ABSORPTION  ...  ." 

MANY HAVE HAD DIFFICULTY IN SEEING WHAT JUSTIFIES THE INCORPORATION
INTO THE FOURTEENTH AMENDMENT OF THE FIRST AND FOURTH AMENDMENTS WHICH
WOULD NOT SIMILARLY JUSTIFY THE INCORPORATION OF THE OTHER SIX.  EVEN
IF I ASSUME, HOWEVER, THAT, AT LEAST AS TO SOME GUARANTEES, THERE ARE
CONSIDERATIONS OF FEDERALISM - DERIVED FROM OUR TRADITION OF THE
AUTONOMY OF THE STATES IN THE EXERCISE OF POWERS CONCERNING THE LIVES,
LIBERTY, AND PROPERTY OF STATE CITIZENS - WHICH SHOULD OVERBEAR THE
WEIGHTY ARGUMENTS IN FAVOR OF THEIR APPLICATION TO THE STATES, I CANNOT
FOLLOW THE LOGIC WHICH APPLIES A PARTICULAR SPECIFIC FOR SOME PURPOSES
AND DENIES ITS APPLICATION FOR OTHERS.  IF WE ACCEPT THE STANDARDS
WHICH JUSTIFY THE APPLICATION OF A SPECIFIC, NAMELY THAT IT IS "OF THE
VERY ESSENCE OF A SCHEME OF ORDERED LIBERTY," PALKO V. CONNECTICUT,
SUPRA, P. 325, OR IS INCLUDED AMONG "THOSE FUNDAMENTAL PRINCIPLES OF
LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR CIVIL AND
POLITICAL INSTITUTIONS," HURTADO V. CALIFORNIA, 110 U.S. 516, 535, OR
IS AMONG THOSE PERSONAL IMMUNITIES "SO ROOTED IN THE TRADITIONS AND
CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS FUNDAMENTAL," SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 105, SURELY ONLY IMPERMISSIBLE SUBJECTIVE
JUDGMENTS CAN EXPLAIN STOPPING SHORT OF THE INCORPORATION OF THE FULL
SWEEP OF THE SPECIFIC BEING ABSORBED.  FOR EXAMPLE, SINCE THE
FOURTEENTH AMENDMENT ABSORBS IN CAPITAL CASES THE SIXTH AMENDMENT'S
REQUIREMENT THAT AN ACCUSED SHALL HAVE THE ASSISTANCE OF COUNSEL FOR
HIS DEFENSE, POWELL V. ALABAMA, 287 U.S. 45, I CANNOT SEE HOW A
DIFFERENT OR GREATER INTERFERENCE WITH A STATE'S SYSTEM OF
ADMINISTERING JUSTICE IS INVOLVED IN APPLYING THE SAME GUARANTEE IN
NONCAPITAL CASES.  YET OUR DECISIONS HAVE LIMITED THE ABSORPTION OF THE
GUARANTEE TO SUCH NONCAPITAL CASES AS ON THEIR PARTICULAR FACTS "RENDER
CRIMINAL PROCEEDINGS WITHOUT COUNSEL SO APT TO RESULT IN INJUSTICE AS
TO BE FUNDAMENTALLY UNFAIR  ...  ," UVEGES V. PENNSYLVANIA, 335 U.S.
437, 441; SEE ALSO BETTS V. BRADY, 316 U.S. 455.  BUT SEE MCNEAL V.
CULVER, 365 U.S. 109, 117 (CONCURRING OPINION).  THIS MAKES OF THE
PROCESS OF ABSORPTION "A LICENSE TO THE JUDICIARY TO ADMINISTER A
WATERED-DOWN, SUBJECTIVE VERSION OF THE INDIVIDUAL GUARANTEES OF THE
BILL OF RIGHTS WHEN STATE CASES COME BEFORE US," WHICH, I SAID IN OHIO
EX REL. EATON V. PRICE, 364 U.S. 263, 275 (DISSENTING OPINION), I
BELIEVE TO BE INDEFENSIBLE.    THE CASE BEFORE US PRESENTS, FOR ME,
ANOTHER SITUATION IN WHICH THE APPLICATION OF THE FULL SWEEP OF A
SPECIFIC IS DENIED, ALTHOUGH THE COURT HAS HELD THAT ITS RESTRAINTS ARE
ABSORBED IN THE FOURTEENTH AMENDMENT FOR SOME PURPOSES.  ONLY THIS TERM
WE APPLIED, ADMITTEDLY NOT IN TERMS BUT NEVERTHELESS IN FACT, THE
PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION GUARANTEED BY THE FIFTH
AMENDMENT TO INVALIDATE A STATE CONVICTION OBTAINED WITH THE AID OF A
CONFESSION, HOWEVER TRUE, WHICH WAS SECURED FROM THE ACCUSED BY DURESS
OR COERCION.  ROGERS V. RICHMOND, 365 U.S. 534; AND SEE BRAM V. UNITED
STATES, 168 U.S. 532.  AND NOT TOO LONG AGO WE INVALIDATED A STATE
CONVICTION FOR ILLEGAL POSSESSION OF MORPHINE BASED ON EVIDENCE OF TWO
CAPSULES WHICH THE ACCUSED HAD SWALLOWED AND THEN HAD BEEN FORCED BY
THE POLICE TO DISGORGE.  ROCHIN V. CALIFORNIA, 342 U.S. 165.  BUT THE
COURT TODAY RELIES UPON EARLIER STATEMENTS THAT THE IMMUNITY FROM
COMPULSORY SELF-INCRIMINATION IS NOT SECURED BY THE FOURTEENTH
AMENDMENT AGAINST IMPAIRMENT BY THE STATES.  THESE STATEMENTS APPEAR
PRIMARILY IN TWINING V. NEW JERSEY, SUPRA, AND ADAMSON V. CALIFORNIA,
SUPRA.  THOSE CASES DO NOT REQUIRE THE CONCLUSION REACHED HERE. 
NEITHER INVOLVED THE QUESTION HERE PRESENTED OF THE CONSTITUTIONALITY
OF A PENALTY VISITED BY A STATE UPON A CITIZEN FOR INVOKING THE
PRIVILEGE.  BOTH INVOLVED ONLY THE MUCH NARROWER QUESTION WHETHER
COMMENT UPON A DEFENDANT'S FAILURE TO TAKE THE STAND IN HIS OWN DEFENSE
WAS CONSTITUTIONALLY PERMISSIBLE. 

HOWEVER, ALL OTHER REASONS ASIDE, A CLOUD HAS PLAINLY BEEN CAST ON
THE SOUNDNESS OF TWINING AND ADAMSON BY OUR DECISIONS ABSORBING THE
FIRST AND FOURTH AMENDMENTS IN THE FOURTEENTH.  THERE IS NO HISTORIC OR
LOGICAL REASON FOR SUPPOSING THAT THOSE AMENDMENTS SECURE MORE
IMPORTANT INDIVIDUAL RIGHTS.  I NEED NOT RELY ONLY ON MR. JUSTICE
BRADLEY'S FAMED STATEMENT IN BOYD V. UNITED STATES, 116 U.S. 616, 632,
THAT COMPULSORY SELF-INCRIMINATION "IS CONTRARY TO THE PRINCIPLES OF A
FREE GOVERNMENT.  IT IS ABHORRENT TO THE INSTINCTS OF AN  ...
AMERICAN.  IT MAY SUIT THE PURPOSES OF DESPOTIC POWER; BUT IT CANNOT
ABIDE THE PURE ATMOSPHERE OF POLITICAL LIBERTY AND PERSONAL FREEDOM." 
I MAY ALSO CALL TO MY SUPPORT THE MORE CURRENT APPRAISAL IN THE SAME
VEIN IN ULLMANN V. UNITED STATES, 350 U.S. 422, 426-428.  THE PRIVILEGE
IS RIGHTLY DESIGNATED "ONE OF THE GREAT LANDMARKS IN MAN'S STRUGGLE TO
MAKE HIMSELF CIVILIZED."  GRISWOLD, THE FIFTH AMENDMENT TODAY, (1955)
7.  BUT EVEN WITHOUT THE SUPPORT OF THESE EMINENT AUTHORITIES, I
BELIEVE THAT THE UNANSWERABLE CASE FOR ABSORPTION WAS STATED BY THE
FIRST MR. JUSTICE HARLAN IN HIS DISSENT IN TWINING, SUPRA, P. 114. 
THEREFORE, WITH HIM, "I CANNOT SUPPORT ANY JUDGMENT DECLARING THAT
IMMUNITY FROM SELF-INCRIMINATION IS NOT  ...  A PART OF THE LIBERTY
GUARANTEED BY THE FOURTEENTH AMENDMENT AGAINST HOSTILE STATE ACTION." 
ID., AT 126.  THE DEGREE TO WHICH THE PRIVILEGE CAN BE ERODED UNLESS
DETERRED BY THE FIFTH AMENDMENT'S RESTRAINTS IS FORCEFULLY BROUGHT HOME
IN THIS CASE BY THE NEW YORK COURT OF APPEALS' DEPARTURE FROM ITS
FORMER PRECEDENTS.  SEE JUDGE FULD'S DISSENT, 7 N.Y.2D 488, 498, 166
N.E.2D 672, 677. 

I WOULD HOLD THAT THE FULL SWEEP OF THE FIFTH AMENDMENT PRIVILEGE HAS
BEEN ABSORBED IN THE FOURTEENTH AMENDMENT.  IN THAT VIEW THE PROTECTION
IT AFFORDS THE INDIVIDUAL, LAWYER OR NOT, AGAINST THE STATE, HAS THE
SAME SCOPE AS THAT AGAINST THE NATIONAL GOVERNMENT, AND, UNDER OUR
DECISION IN SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551, THE ORDER
UNDER REVIEW SHOULD BE REVERSED. 
..END :










SMITH V. BUTLER, TRUSTEES 366 U.S. 161 


NO. 313.  ARGUED MARCH 27-28, 1961 - DECIDED APRIL 24, 1961 - REPORTED
BELOW:  118 SO. 2D 237. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, IT
APPEARED AFTER ARGUMENT AND DUE CONSIDERATION THAT THE COURSE OF
LITIGATION AND THE DECISIONS IN THE FLORIDA COURTS DID NOT TURN ON THE
ISSUE ON THE BASIS OF WHICH CERTIORARI WAS GRANTED.  ACCORDINGLY, THE
WRIT IS DISMISSED. 

SMITH V. BUTLER ET AL., TRUSTEES. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD
APPELLATE DISTRICT. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IN THIS CASE RAISED SOLELY A QUESTION
REGARDING THE BEARING OF THE RAILWAY LABOR ACT ON THE ENFORCEMENT OF
THE FEDERAL EMPLOYERS' LIABILITY ACT.  THE PETITION WAS GRANTED.  364
U.S. 869.  AFTER FULL ARGUMENT AND DUE CONSIDERATION, IT BECAME
MANIFEST THAT THE COURSE OF LITIGATION AND THE DECISIONS IN THE FLORIDA
COURTS DID NOT TURN ON THE ISSUE ON THE BASIS OF WHICH CERTIORARI WAS
GRANTED.  ACCORDINGLY, THE WRIT IS DISMISSED. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK JOIN, DISSENTING. 

I CANNOT AGREE THAT, AS THE COURT SAYS, THE PETITION FOR CERTIORARI IN
THIS CASE "RAISED SOLELY A QUESTION REGARDING THE BEARING OF THE
RAILWAY LABOR ACT ON THE ENFORCEMENT OF THE FEDERAL EMPLOYERS'
LIABILITY ACT."  THE ISSUE ACTUALLY TENDERED IS THE FAMILIAR ONE
WHETHER A REVIEWING COURT PROPERLY DEPRIVED AN FELA CLAIMANT OF A JURY
VERDICT ON THE GROUND THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE
FINDING OF THE CARRIER'S NEGLIGENCE.  THE COURT RELIES UPON "THE COURSE
OF LITIGATION AND THE DECISIONS IN THE FLORIDA COURTS."  MY READING OF
WHAT OCCURRED IN THE FLORIDA COURTS MAKES MANIFEST TO ME THAT THE ISSUE
UNDER THE QUESTION PRESENTED IN THE PETITION IS AS TO THE SUFFICIENCY
OF THE PROOFS TO ESTABLISH NEGLIGENCE. 

THE PETITIONER WAS A FLAGMAN IN THE EMPLOY OF FLORIDA EAST COAST
RAILWAY.  HE BROUGHT THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, 45 U.S.C. SEC. 51 ET SEQ., IN THE CIRCUIT COURT OF DADE COUNTY,
FLORIDA.  HE ALLEGED THAT HE SUFFERED INJURIES IN THE COURSE OF HIS
EMPLOYMENT WHILE TAKING A "FIELD TEST" WHICH THE CARRIER REQUIRED HIM
TO TAKE ALONG ITS RIGHT OF WAY AND TRACKS IN FLORIDA.  HE ALLEGED EIGHT
GROUNDS OF NEGLIGENCE BUT HAS ABANDONED SIX AND WE ARE CONCERNED ONLY
WITH TWO, NAMELY THAT THE CARRIER VIOLATED THE FEDERAL EMPLOYERS'
LIABILITY ACT, "(A) IN NEGLIGENTLY AND UNLAWFULLY REQUIRING THE
PLAINTIFF TO PARTICIPATE IN SUCH A 'FIELD TEST'; (B) IN NEGLIGENTLY
ALLOWING ITS SERVANTS, AGENTS OR SUPERVISORS TO CONDUCT SUCH A 'FIELD
TEST.'"  AT THE CLOSE OF PETITIONER'S CASE AT THE TRIAL, THE CARRIER
MADE A MOTION TO DISMISS THE CLAIM ALLEGED UNDER ALLEGATIONS (A) AND
(B), ON THE GROUND THAT THOSE ALLEGATIONS "PERTAIN TO THE RIGHT TO GIVE
A FIELD TEST."  RESPONDENTS CONTENDED THAT SUCH A CLAIM, IF COGNIZABLE
AT ALL, WAS COGNIZABLE NOT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
BUT ONLY AS A GRIEVANCE WITHIN THE EXCLUSIVE COGNIZANCE OF THE NATIONAL
RAILROAD ADJUSTMENT BOARD CREATED UNDER THE RAILWAY LABOR ACT, 45
U.S.C. SEC. 153, FIRST (I); SEE UNION PACIFIC R. CO. V. PRICE, 360 U.S.
601.  THE TRIAL JUDGE DENIED THE MOTION AND RULED THAT THE GRAVAMEN OF
THE PETITIONER'S CLAIM WAS NOT THAT RESPONDENTS COULD NOT REQUIRE
PETITIONER TO TAKE A TEST, BUT THAT, "KNOWING HIS PHYSICAL CONDITION,"
THE CARRIER WAS NEGLIGENT IN REQUIRING THE PETITIONER TO TAKE THE
PARTICULAR TEST.  THE TRIAL JUDGE ALSO DENIED THE CARRIER'S MOTION FOR
A DIRECTED VERDICT GROUNDED ON THE ALLEGED INSUFFICIENCY OF THE PROOFS
TO ESTABLISH NEGLIGENCE.  THE JURY RETURNED A VERDICT FOR THE
PETITIONER.  THE FLORIDA DISTRICT COURT OF APPEAL, THIRD DISTRICT,
REVERSED AND REMANDED THE CASE FOR A NEW TRIAL.  104 SO. 2D 868. 

ON REMAND COUNSEL FOR BOTH PARTIES AND THE TRIAL JUDGE DISCUSSED AT
LENGTH WHAT IT WAS THE COURT OF APPEAL HELD.  THERE WAS AGREEMENT THAT
THE OPINION OF THE COURT OF APPEAL WAS AMBIGUOUS.  IT MIGHT BE READ TO
GROUND THE REVERSAL ON THE FINDING BY THE COURT OF APPEAL THAT THE
CAUSE WAS PLEADED AND TRIED ON A CLAIM NOT ACTIONABLE UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT BUT, IF AT ALL, UNDER THE RAILWAY LABOR ACT. 
THIS IS SUGGESTED BY THE LANGUAGE IN THE OPINION, "IF THE APPELLEE WERE
AGGRIEVED, HE HAD A REMEDY FOR SUCH GRIEVANCE UNDER THE RAILWAY LABOR
ACT."  104 SO. 2D, AT 869-870.  ON THE OTHER HAND, THE OPINION MIGHT
ALSO BE INTERPRETED AS GROUNDING THE REVERSAL ON THE INSUFFICIENCY OF
THE EVIDENCE TO PROVE NEGLIGENCE, BECAUSE THE PETITIONER, WHILE
ASSUMING THE RIGHT OF THE CARRIER TO GIVE THE TEST, HAD FAILED TO SHOW
THAT IT WAS NEGLIGENT IN THE CIRCUMSTANCES PROVED FOR THE CARRIER TO
REQUIRE THE PETITIONER TO TAKE THE TEST.  SUPPORT FOR THIS
INTERPRETATION IS IN THE STATEMENT OF THE OPINION THAT "THE APPELLEE'S
ENTIRE CASE AS REFLECTED BY THIS RECORD CONCLUSIVELY INDICATES THAT IT
WAS PREMISED UPON THE CLAIM THAT APPELLANT'S CONDUCT IN REQUIRING THE
APPELLEE TO TAKE A FIELD TEST WAS UNLAWFUL AND THAT ALL OF HIS INJURIES
AND DAMAGES RESULTED FROM SUCH UNLAWFUL ACT."  104 SO. 2D, AT 870. 

THE TRIAL JUDGE FINALLY CONCLUDED THAT THE OPINION OF THE COURT OF
APPEAL WAS TO BE READ AS RESTING THE REVERSAL UPON THE LATTER GROUND. 
THE TRIAL JUDGE STATED, "I THINK THAT I AM INCLINED TO AGREE WITH
PETITIONER'S COUNSEL THAT THEY (THE COURT OF APPEAL) JUST DIDN'T SAY
REQUIRING A FIELD TEST WAS IMPROPER.  THEY SAID, 'REQUIRING THE
APPELLEE TO PARTICIPATE IN A FIELD TEST,' AND THEY HAD THE FIELD TEST
THAT WAS CONDUCTED WHEN THEY WROTE THIS OPINION, AND IF THEIR OPINION
MEANS ANYTHING TO US AT ALL, I THINK WE HAVE GOT TO FOLLOW IT TO THE
EXTENT OF OUR INTERPRETATION OF THEIR WORDS AND WHAT THEY MEANT."  THE
TRIAL JUDGE RULED FURTHER THAT A CAUSE OF ACTION FOR NEGLIGENCE ON THE
PART OF THE CARRIER IN GIVING THE PARTICULAR TEST "WOULD BE INCLUDED"
IN ALLEGATION (A) ABOVE QUOTED. 

THE RECORD ON REMAND THUS PLAINLY REVEALS THAT THE TRIAL JUDGE AGREED
WITH PETITIONER'S ARGUMENT THAT ALLEGATIONS (A) AND (B) OF THE
COMPLAINT PLEADED, AND THE PARTIES HAD TRIED, A CAUSE OF ACTION UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT. 

COUNSEL FOR THE CARRIER ADMITTED DURING THE COLLOQUY ON THE REMAND
THAT IF THIS WAS THE CAUSE OF ACTION PLEADED AND TRIED, THE CLAIM WAS
ACTIONABLE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  CARRIER'S
COUNSEL WENT FURTHER.  HE SAID, "I THINK THE PROOFS SO FAR JUSTIFY IT,
BUT IF THEY WANT TO TRAVEL ON THAT ISSUE, I THINK THEY COULD AMEND."
PETITIONER'S COUNSEL WAS WILLING TO AMEND BUT INSISTED THAT THE CASE
HAD BEEN PLEADED AND TRIED ON THAT THEORY AND THAT NO AMENDMENT WAS
NECESSARY.  NO FORMAL AMENDMENT WAS MADE, OBVIOUSLY BECAUSE THE TRIAL
JUDGE RULED THAT THE THEORY WAS EMBRACED WITHIN ALLEGATION (A). 
HOWEVER, PETITIONER'S COUNSEL DESIRED TO APPLY FOR REVIEW OF THE COURT
OF APPEAL'S DETERMINATION AS RESTED, AS THE TRIAL JUDGE HAD INTERPRETED
ITS OPINION, ON THE GROUND THAT THE EVIDENCE WAS INSUFFICIENT TO
PRESENT A JURY QUESTION OF NEGLIGENCE.  BUT, SINCE A NEW TRIAL WAS
ORDERED BY THE COURT OF APPEAL, THERE COULD BE NO FINAL JUDGMENT REVIEW
OF WHICH MIGHT BE SOUGHT UNTIL A JUDGMENT WAS ENTERED ON THE RETRIAL. 
IN ORDER TO OBTAIN SUCH A JUDGMENT WITHOUT RETRYING THE CASE,
PETITIONER'S COUNSEL PROFFERED THE TRIAL RECORD OF THE FIRST TRIAL AS
HIS ONLY PROOF AT THE RETRIAL.  HE EXPRESSLY STATED THAT HIS POSITION
WAS THAT THE TRIAL RECORD WAS SUFFICIENT "TO PROVE THAT THE RAILROAD
EITHER KNEW OR SHOULD HAVE KNOWN THAT BERT SMITH WAS PHYSICALLY UNABLE
TO TAKE THAT TEST AND LIKELY TO BE INJURED IF HE TOOK IT, AND IN SPITE
OF WHAT THE RAILROAD KNEW OR SHOULD HAVE KNOWN, THEY GAVE HIM THE
TEST."  THE TRIAL JUDGE ACCEPTED THE PROFFER OVER THE CARRIER'S
OBJECTION, BUT RULED THAT HE WAS BOUND BY THE COURT OF APPEAL'S HOLDING
THAT THAT RECORD DID NOT SUFFICE TO RAISE A JURY QUESTION OF
NEGLIGENCE.  "UNDER THE TESTIMONY THAT WAS ADDUCED BEFORE ON THIS
POINT, THAT I WOULD RULE THAT THERE WAS NO PROPER ISSUE OF EVIDENCE TO
SUBMIT TO THE JURY OF NEGLIGENCE ON REQUIRING HIM TO TAKE THIS
PARTICULAR FIELD TEST UNDER THE TESTIMONY."  THE JUDGE ACCORDINGLY
DIRECTED THE ENTRY OF A JUDGMENT IN FAVOR OF THE CARRIER.  OBVIOUSLY
THE CASE WENT TO THE DISTRICT COURT OF APPEAL THE SECOND TIME WITH THIS
GLOSS OF THE TRIAL JUDGE'S INTERPRETATION OF THAT COURT'S EARLIER
OPINION.  THEREFORE, WHEN THE DISTRICT COURT OF APPEAL, PER CURIAM,
AFFIRMED "UPON THE AUTHORITY" OF ITS PREVIOUS OPINION, 118 SO. 2D 237,
THE AFFIRMANCE SUSTAINED THE TRIAL JUDGE'S INTERPRETATION OF THE
REVERSAL AS HAVING RESTED, NOT ON THE GROUND THAT THE RAILWAY LABOR ACT
PRECLUDED THE PETITIONER'S CLAIM UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, BUT ON THE GROUND THAT THE EVIDENCE OF NEGLIGENCE WAS INSUFFICIENT
TO SUPPORT A RECOVERY ON THE CLAIM PROPERLY PLEADED UNDER THE LATTER
STATUTE.  THE SUPREME COURT OF FLORIDA, IN AN UNREPORTED MINUTE, DENIED
PETITIONER'S PETITION FOR CERTIORARI.  WE GRANTED HIS PETITION TO THIS
COURT, 364 U.S. 869. 

AGAINST THIS BACKGROUND OF "THE COURSE OF LITIGATION AND THE
DECISIONS IN THE FLORIDA COURTS" THE QUESTION PRESENTED, IF PLAIN
ENGLISH IS TO HAVE ITS ORDINARY MEANING, IS WHETHER THE FLORIDA COURT
OF APPEAL CORRECTLY DETERMINED THAT THE EVIDENCE AT THE FIRST TRIAL WAS
INSUFFICIENT TO RAISE A JURY QUESTION OF THE ALLEGED NEGLIGENCE OF THE
CARRIER IN REQUIRING THE PETITIONER, KNOWING HIS PHYSICAL CONDITION, TO
TAKE THE FIELD TEST.  FOR THE QUESTION PRESENTED IS AS FOLLOWS: 

"DID THE FLORIDA APPELLATE COURT ERR IN HOLDING THAT WHEN A RAILROAD
EMPLOYEE SUSTAINS PERSONAL INJURIES WHILE PERFORMING AN ALLEGED
PHYSICAL FITNESS FIELD TEST ORDERED BY THE RAILROAD THAT THE PROVISIONS
OF THE RAILWAY LABOR ACT, 45 U.S.C., SECTION 151, ET SEQ., PRECLUDE HIM
FROM CLAIMING THAT THE GIVING OF SUCH A TEST UNDER THE FACTS AND
CIRCUMSTANCES OF THIS CASE WAS AN ACT OF NEGLIGENCE UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, 45 U.S.C., SECTION 51, ET SEQ.?" 

ALTHOUGH THE MEMBERS OF THE COURT HAVE DISAGREED WHETHER WE SHOULD
GRANT REVIEW OF THESE CASES, WHEN THEY ARE BROUGHT HERE ALL OF US
EXCEPT MY BROTHER FRANKFURTER BELIEVE THAT WE HAVE THE DUTY TO DECIDE
THEM ON THE MERITS.  VIEWING THE ISSUE PRESENTED FOR OUR REVIEW I HAVE
READ THE TRIAL RECORD.   I NEED NOT RELY SOLELY ON MY OWN CONCLUSION
THAT THE EVIDENCE PLAINLY PRESENTED A JURY QUESTION "WHETHER THE PROOFS
JUSTIFY WITH REASON THE CONCLUSION THAT EMPLOYER NEGLIGENCE PLAYED ANY
PART, EVEN THE SLIGHTEST, IN PRODUCING THE INJURY  ...  FOR WHICH
DAMAGES ARE SOUGHT."  ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500,
506.  I MAY SUMMON TO MY SUPPORT THE CONCESSION OF THE CARRIER'S
COUNSEL THAT ON THAT ISSUE "THE PROOFS SO FAR JUSTIFY IT."  I WOULD
REVERSE AND REMAND THE CAUSE WITH DIRECTION TO ENTER AN ORDER
REINSTATING THE JUDGMENT IN FAVOR OF THE PETITIONER. 

MR. JUSTICE DOUGLAS JOINS THIS OPINION EXCEPT THAT HE WOULD REMAND
FOR A NEW TRIAL.  HE BELIEVES THAT THE DISTRICT COURT OF APPEAL WAS
CORRECT IN HOLDING THAT THE JURY TRIAL WAS NOT A FAIR ONE.  SEE BUTLER
V. SMITH, 104 SO. 2D 868. 
..END :




















LUSH V. COMMISSIONER OF EDUCATION OF NEW YORK 366 U.S. 167 


NO. 683.  DECIDED APRIL 24, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  7 N.Y.2D 745, 162 N.E.2D 738. 


LUSH V. COMMISSIONER OF EDUCATION OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















COMPLETE AUTO TRANSIT, INC. V. CARPENTIER 366 U.S. 168 


NO. 750.  DECIDED APRIL 24, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  19 ILL. 2D 551, 169 N.E.2D 78. 


COMPLETE AUTO TRANSIT, INC., V. CARPENTIER, SECRETARY OF STATE OF
ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION OF THE NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION FOR
LEAVE TO FILE BRIEF, AS AMICUS CURIAE, IS GRANTED.  THE MOTION TO
DISMISS IS GRANTED AND THE APPEAL IS DISMISSED.  TREATING THE PAPERS
WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF CERTIORARI,
CERTIORARI IS DENIED. 
..END :













LOCAL 60, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL
CIO V. NATIONAL LABOR RELATIONS BOARD 365 U.S. 651 


NO. 68.  ARGUED FEBRUARY 28, MARCH 1, 1961 - DECIDED APRIL 17, 1961 -
273 F.2D 699, REVERSED. 


AN EMPLOYER ENTERED INTO A CONTRACT WITH THE BROTHERHOOD OF CARPENTERS
TO EMPLOY MEMBERS OF THE UNION AND TO ABIDE BY THE RULES AND
REGULATIONS OF THE UNION APPLICABLE TO THE LOCALITY WHERE WORK WAS
DONE.  UPON UNDERTAKING WORK IN A CERTAIN LOCALITY, THE EMPLOYER AGREED
TO HIRE WORKERS ON REFERRAL FROM PETITIONER LOCAL UNION.  TWO
APPLICANTS FROM ANOTHER LOCAL UNION WERE DENIED EMPLOYMENT BECAUSE THEY
COULD NOT GET REFERRAL FROM PETITIONER LOCAL UNION.  THE NATIONAL LABOR
RELATIONS BOARD FOUND THAT THE UNIONS HAD VIOLATED SEC. 8(B)(1)(A) AND
SEC. 8(B)(2) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, BY
MAINTAINING AND ENFORCING AN AGREEMENT WHICH ESTABLISHED CLOSED-SHOP
PREFERENTIAL HIRING CONDITIONS AND BY CAUSING THE EMPLOYER TO REFUSE TO
HIRE THE TWO APPLICANTS.  THERE WAS NO EVIDENCE, HOWEVER, THAT THEY HAD
COERCED ANY EMPLOYEE TO BECOME OR REMAIN A MEMBER.  HELD:  ON THE
RECORD IN THIS CASE, THE BOARD WAS NOT AUTHORIZED UNDER SEC. 10(C) TO
REQUIRE THE UNIONS TO REFUND DUES AND FEES PAID TO THEM BY THEIR
MEMBERS.  VIRGINIA ELECTRIC CO. V. LABOR BOARD, 319 U.S. 533,
DISTINGUISHED.  PP. 652-656. 

LOCAL 60, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL
CIO, ET AL. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, UNITED BROTHERHOOD, ENTERED INTO A CONTRACT WITH
MECHANICAL HANDLING SYSTEMS, INC. (WHICH WE WILL CALL THE COMPANY),
WHEREBY THE COMPANY AGREED TO WORK THE HOURS, PAY THE WAGES, ABIDE BY
THE RULES AND REGULATIONS OF THE UNION APPLICABLE TO THE LOCALITY WHERE
THE WORK IS DONE, AND EMPLOY MEMBERS OF THE UNION. 

THE COMPANY, UNDERTAKING WORK AT INDIANAPOLIS, AGREED TO HIRE WORKERS
ON REFERRAL FROM A LOCAL UNION, ONE OF THE PETITIONERS IN THIS CASE. 
TWO APPLICANTS FROM ANOTHER LOCAL UNION WERE DENIED EMPLOYMENT BY THE
COMPANY BECAUSE THEY COULD NOT GET REFERRAL FROM PETITIONER LOCAL
UNION. 

THE BOARD FOUND THAT PETITIONERS HAD VIOLATED SEC. 8(B)(1)(A) AND
SEC. 8(B)(2) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE
TAFT-HARTLEY ACT, 61 STAT. 136, 141, AS AMENDED, 29 U.S.C. SEC. 158, IN
MAINTAINING AND ENFORCING AN AGREEMENT WHICH ESTABLISHED CLOSED-SHOP
PREFERENTIAL HIRING CONDITIONS AND IN CAUSING THE COMPANY TO REFUSE TO
HIRE THE TWO APPLICANTS.  122 N.L.R.B. 396. 

AFTER GRANTING OTHER RELIEF THE BOARD SAID: 

"AS WE FIND THAT DUES, NONMEMBERSHIP DUES, ASSESSMENTS, AND WORK
PERMIT FEES, (FN1) WERE COLLECTED UNDER THE ILLEGAL CONTRACT AS THE
PRICE EMPLOYEES PAID IN ORDER TO OBTAIN OR RETAIN THEIR JOBS, WE DO NOT
BELIEVE IT WOULD EFFECTUATE THE POLICIES OF THE ACT TO PERMIT THE
RETENTION OF THE PAYMENTS WHICH HAVE BEEN UNLAWFULLY EXACTED FROM THE
EMPLOYEES." 

IT ADDED THAT THE REMEDIAL PROVISIONS "ARE APPROPRIATE AND NECESSARY
TO EXPUNGE THE COERCIVE EFFECT" OF PETITIONERS' UNFAIR LABOR
PRACTICES. 

ON APPLICATION OF THE BOARD, THE COURT OF APPEALS ENFORCED THE
ORDER.  273 F.2D 699.  THE CASE IS HERE ON A WRIT OF CERTIORARI, 363
U.S. 837, IN WHICH PETITIONERS CHALLENGE NO PART OF THE BOARD'S ORDER
EXCEPT THE REFUND PROVISION. 

THE PROVISION FOR REFUND IN THIS CASE IS THE PRODUCT OF A RULE
ANNOUNCED BY THE BOARD IN THE BROWN-OLDS CASE, 115 N.L.R.B. 594, WHICH
INVOLVED THE USE OF A CLOSED-SHOP AGREEMENT DESPITE THE BAN IN THE TAFT
HARTLEY ACT.  IN THAT CASE A PANEL OF THREE MEMBERS OF THE FIVE-MEMBER
BOARD FOUND A VIOLATION OF THE CLOSED-SHOP PROVISION OF THE ACT.  TWO
OF THE THREE AGREED TO AN ORDER OF REIMBURSEMENT TO ALL EMPLOYEES FOR
ANY ASSESSMENTS COLLECTED BY THE UNION WITHIN THE PERIOD STARTING FROM
SIX MONTHS PRIOR TO THE DATE OF THE FILING OF THE CHARGE.  ONE MEMBER,
IVAR H. PETERSON, DISSENTED, SAYING THAT THE REIMBURSEMENT WAS
INAPPROPRIATE SINCE THERE WAS AN ABSENCE OF "SPECIFIC EVIDENCE OF
COERCION AND EVIDENCE THAT PAYMENTS WERE REQUIRED AS A CONDITION OF
EMPLOYMENT."  ID., 606.  LATER THAT REMEDY WAS EXTENDED TO HIRING
ARRANGEMENTS, WHICH THOUGH NOT OPERATING IN CONNECTION WITH A CLOSED
SHOP, WERE FELT BY THE BOARD TO HAVE A COERCIVE INFLUENCE ON THE
APPLICANTS FOR WORK TO JOIN THE UNION.  LOS ANGELES-SEATTLE MOTOR
EXPRESS, INC., 121 N.L.R.B. 1629. 

IN NEITHER OF THOSE CASES NOR IN THE PRESENT CASE WAS THERE ANY
EVIDENCE THAT THE UNION MEMBERSHIP, FEES, OR DUES WERE COERCED.  THE
BOARD AS WELL AS THE COURT OF APPEALS HELD THAT FACT TO BE IMMATERIAL. 
BOTH SAID THAT THE CASE WAS GOVERNED BY VIRGINIA ELECTRIC CO. V. LABOR
BOARD, 319 U.S. 533; AND THE COURT OF APPEALS ADDED THAT COERCION WAS
TO BE INFERRED AS "THERE WAS PRESENT AN IMPLICIT THREAT OF LOSS OF JOB
IF THOSE FEES WERE NOT PAID."  273 F.2D, AT 703.  THE BOARD ARGUES, IN
SUPPORT OF THAT POSITION, THAT REIMBURSEMENT OF DUES WHERE HIRING
ARRANGEMENTS HAVE BEEN ABUSED IS PROTECTIVE OF RIGHTS VINDICATED BY THE
ACT AND AUTHORIZED BY SEC. 10(C).  (FN2) 

WE DO NOT THINK THIS CASE IS GOVERNED BY VIRGINIA ELECTRIC CO. V.
LABOR BOARD, SUPRA.  THAT CASE INVOLVED A COMPANY UNION WHOSE VERY
EXISTENCE WAS UNLAWFUL.  THERE WERE, INDEED, FINDINGS THAT THE UNION
"WAS NOT THE RESULT OF THE EMPLOYEES' FREE CHOICE" (319 U.S., AT 537),
AND THAT THE EMPLOYEES HAD TO REMAIN MEMBERS OF THE UNION TO RETAIN
THEIR JOBS.  ID., 540.  RETURN OF DUES WAS ONE OF THE MEANS FOR
DISESTABLISHING AN UNLAWFUL UNION.  ID., 541.  CF. LABOR BOARD V. MINE
WORKERS, 355 U.S. 453, 458-459. 

THE UNIONS IN THE PRESENT CASE WERE NOT UNLAWFULLY CREATED.  ON THE
RECORD BEFORE US THEY HAVE ENGAGED IN PROHIBITED ACTIVITY.  BUT THERE
IS NO EVIDENCE THAT ANY OF THEM COERCED A SINGLE EMPLOYEE TO JOIN THE
UNION RANKS OR TO REMAIN AS MEMBERS.  ALL OF THE EMPLOYEES AFFECTED BY
THE PRESENT ORDER WERE UNION MEMBERS WHEN EMPLOYED ON THE JOB IN
QUESTION.  SO FAR AS WE KNOW, THEY MAY HAVE BEEN MEMBERS FOR YEARS ON
END.  NO EVIDENCE WAS OFFERED TO SHOW THAT EVEN A SINGLE PERSON JOINED
THE UNION WITH THE VIEW OF OBTAINING WORK ON THIS PROJECT.  NOR WAS
THERE ANY EVIDENCE THAT ANY WHO HAD VOLUNTARILY JOINED THE UNION WAS
KEPT FROM RESIGNING FOR FEAR OF RETALIATORY MEASURES AGAINST HIM.  THIS
CASE IS THEREFORE QUITE DIFFERENT FROM RADIO OFFICERS V. LABOR BOARD,
347 U.S. 17, 48, WHERE, DISCRIMINATION HAVING BEEN SHOWN, THE
INFERENCES TO BE DRAWN WERE LEFT LARGELY TO THE BOARD. 

THE BOARD HAS BROAD DISCRETION TO ADAPT ITS REMEDIES TO THE NEEDS OF
PARTICULAR SITUATIONS SO THAT "THE VICTIMS OF DISCRIMINATION" MAY BE
TREATED FAIRLY.  SEE PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177,
194.  BUT THE POWER OF THE BOARD "TO COMMAND AFFIRMATIVE ACTION IS
REMEDIAL, NOT PUNITIVE, AND IS TO BE EXERCISED IN AID OF THE BOARD'S
AUTHORITY TO RESTRAIN VIOLATIONS AND AS A MEANS OF REMOVING OR AVOIDING
THE CONSEQUENCES OF VIOLATION WHERE THOSE CONSEQUENCES ARE OF A KIND TO
THWART THE PURPOSES OF THE ACT."  CONSOLIDATED EDISON CO. V. LABOR
BOARD, 305 U.S. 197, 236.  WHERE NO MEMBERSHIP IN THE UNION WAS SHOWN
TO BE INFLUENCED OR COMPELLED BY REASON OF ANY UNFAIR PRACTICE, NO
"CONSEQUENCES OF VIOLATION" ARE REMOVED BY THE ORDER COMPELLING THE
UNION TO RETURN ALL DUES AND FEES COLLECTED FROM THE MEMBERS; AND NO
"DISSIPATION" OF THE EFFECTS OF THE PROHIBITED ACTION IS ACHIEVED. 
LABOR BOARD V. MINE WORKERS, SUPRA, 463.  THE ORDER IN THOSE
CIRCUMSTANCES BECOMES PUNITIVE AND BEYOND THE POWER OF THE BOARD. 
(FN3)  CF. REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7, 10.  AS
JUDGE POPE SAID IN MORRISON-KNUDSEN CO. V. LABOR BOARD, 276 F.2D 63,
76, "REIMBURSING A LOT OF OLD-TIME UNION MEN" BY REFUNDING THEIR DUES
IS NOT A REMEDIAL MEASURE IN THE COMPETENCE OF THE BOARD TO IMPOSE,
UNLESS THERE IS SUPPORT IN THE EVIDENCE THAT THEIR MEMBERSHIP WAS
INDUCED, OBTAINED, OR RETAINED IN VIOLATION OF THE ACT.  IT WOULD BE
DIFFICULT, EVEN WITH HOSTILE EYES, TO READ THE HISTORY OF TRADE
UNIONISM EXCEPT IN TERMS OF VOLUNTARY ASSOCIATIONS FORMED TO MEET
PRESSING NEEDS IN A COMPLEX SOCIETY.  (FN4)  REVERSED. 

FN1  THE MONTHLY DUES PAYABLE TO THE LOCAL UNION WERE $3.50 AND THE
INITIATION FEE $125.  DUES AND FEES IN LESSER AMOUNTS WERE PAYABLE BY
APPRENTICES.  A MEMBER WHO IS WORKING WITHIN THE JURISDICTION OF A
DISTRICT COUNCIL WHO HAS NOT TRANSFERRED HIS MEMBERSHIP TO A LOCAL
UNION OF THE COUNCIL PAYS FOR A WORKING PERMIT THAT IS NOT LESS THAN 75
CENTS A MONTH NOR MORE THAN THE LOCAL MONTHLY DUES. 

FN2  SECTION 10(C) PROVIDES IN RELEVANT PART: 

"  ...  IF UPON THE PREPONDERANCE OF THE TESTIMONY TAKEN THE BOARD
SHALL BE OF THE OPINION THAT ANY PERSON NAMED IN THE COMPLAINT HAS
ENGAGED IN OR IS ENGAGING IN ANY SUCH UNFAIR LABOR PRACTICE, THEN THE
BOARD SHALL STATE ITS FINDINGS OF FACT AND SHALL ISSUE AND CAUSE TO BE
SERVED ON SUCH PERSON AN ORDER REQUIRING SUCH PERSON TO CEASE AND
DESIST FROM SUCH UNFAIR LABOR PRACTICE, AND TO TAKE SUCH AFFIRMATIVE
ACTION INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY,
AS WILL EFFECTUATE THE POLICIES OF THIS ACT:  ...  ." 

FN3  ACCORD:  MORRISON-KNUDSEN CO. V. LABOR BOARD, 275 F.2D 914
(C.A.2D CIR.); LABOR BOARD V. UNITED STATES STEEL CORP., 278 F.2D 896
(C.A. 3D CIR.); LABOR BOARD V. LOCAL UNION NO. 85, 274 F.2D 344 (C.A.
5TH CIR.); LABOR BOARD V. INTERNATIONAL UNION, 279 F.2D 951 (C.A. 8TH
CIR.); MORRISON-KNUDSEN CO. V. LABOR BOARD, 276 F.2D 63 (C.A. 9TH
CIR.); LOCAL 357 V. LABOR BOARD, 107 U.S. APP. D.C. 188, 275 F.2D 646. 
CF. LABOR BOARD V. CARPENTERS LOCAL, 276 F.2D 583 (C.A. 1ST CIR.);
PERRY COAL CO. V. LABOR BOARD, 284 F.2D 910 (C.A. 7TH CIR.). 

FN4  SEE MILLIS AND MONTGOMERY, ORGANIZED LABOR, VOL. III (1945), C.
VIII. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

WHILE I AGREE WITH THE COURT THAT VIRGINIA ELECTRIC & POWER CO. V.
LABOR BOARD, 319 U.S. 533, DOES NOT JUSTIFY THE BOARD'S "BROWN-OLDS"
REMEDY AS IT HAS BEEN APPLIED IN THIS AND OTHER CASES, I THINK THE
BOARD IS ENTITLED TO BE INFORMED MORE FULLY WHY THAT SHOULD BE SO,
SINCE IT MAY FAIRLY BE SAID THAT VIRGINIA ELECTRIC COULD BE TAKEN AS
HAVING INVITED THE COURSE THE BOARD HAS BEEN FOLLOWING.  IN JOINING THE
COURT'S OPINION I SHALL THEREFORE ADD SOME FURTHER VIEWS. 

THE BROWN-OLDS REMEDY IS AN ORDER MADE UNDER SEC. 10(C) OF THE
NATIONAL LABOR RELATIONS ACT WHICH AUTHORIZES THE BOARD, AFTER FINDING
AN UNFAIR LABOR PRACTICE, NOT ONLY TO ISSUE A CEASE AND DESIST ORDER
BUT ALSO "TO TAKE SUCH AFFIRMATIVE ACTION  ...  AS WILL EFFECTUATE THE
POLICIES OF THIS ACT ...  ."  THE REMEDY, WHICH SEEMS ONLY TO BE
APPLIED IF THE UNFAIR LABOR PRACTICE AMOUNTS EITHER TO EMPLOYER
DOMINATION OF A UNION (SEC. 8(A)(2)) OR DISCRIMINATION IN FAVOR OF
UNION MEMBERSHIP BY AN AGREEMENT BETWEEN EMPLOYER AND UNION (SEC.
8(A)(3); SEC. 8(B)(2)), TYPICALLY REQUIRES THAT EITHER THE UNION OR THE
EMPLOYER REIMBURSE ALL EMPLOYEES IN THE AMOUNT OF ALL MONEYS PAID IN
DUES, ASSESSMENTS, ETC., SINCE SIX MONTHS BEFORE THE UNFAIR LABOR
PRACTICE CHARGE WAS FILED.  THE BOARD DOES NOT ADMIT DEFENSIVE EVIDENCE
THAT SOME EMPLOYEES VOLUNTARILY MADE SUCH PAYMENTS.  AN ILLEGAL CLOSED
SHOP OR DISCRIMINATORY HIRING PRACTICES CREATE AN IRREBUTTABLE
PRESUMPTION OF COERCION.  SEE, E.G., BROWN-OLDS PLUMBING & HEATING
CORP., 115 N.L.R.B. 594; SALTSMAN CONSTRUCTION CO., 123 N.L.R.B. 1176;
NASSAU & SUFFOLK CONTRACTORS' ASSN., 123 N.L.R.B. 1393; LUMMUS CORP.,
125 N.L.R.B. 1161. 

THE PROVISION THAT THE BOARD WAS TO BE ALLOWED "TO TAKE SUCH
AFFIRMATIVE ACTION  ...  AS WILL EFFECTUATE THE POLICIES OF THIS ACT
...  " DID NOT PASS THE WAGNER ACT CONGRESS WITHOUT OBJECTION TO THE
UNCONTROLLED BREADTH OF THIS POWER.  SEE HEARINGS BEFORE SENATE
COMMITTEE ON EDUCATION AND LABOR ON S. 1958, 74TH CONG., 1ST SESS. 448
449.  THIS COURT'S CONSTRUCTION OF THE SCOPE OF THE POWER HAS REFLECTED
A SIMILAR CONCERN.  THE BOARD HAS BEEN TOLD THAT IT IS WITHOUT POWER TO
"EFFECTUATE THE POLICIES OF THIS ACT" BY ASSESSING PUNISHMENTS UPON
THOSE WHO COMMIT UNFAIR LABOR PRACTICES.  REPUBLIC STEEL CORP V. LABOR
BOARD, 311 U.S. 7, 11, 12.  THE PRIMARY PURPOSE OF THE PROVISION FOR
OTHER AFFIRMATIVE RELIEF HAS BEEN HELD TO BE TO ENABLE THE BOARD TO
TAKE MEASURES DESIGNED TO RECREATE THE CONDITIONS AND RELATIONSHIPS
THAT WOULD HAVE BEEN HAD THERE BEEN NO UNFAIR LABOR PRACTICE. 
CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197, 236.  THUS IN
PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, THIS COURT REVERSED
THE BOARD FOR REFUSING TO ALLOW AN EMPLOYER TO SHOW IN MITIGATION OF A
BACK-PAY ORDER THAT THE EMPLOYEE UNJUSTIFIABLY REFUSED TO TAKE
DESIRABLE NEW EMPLOYMENT DURING THE PERIOD.  IN REPUBLIC STEEL, SUPRA,
THE COURT REFUSED TO ENFORCE AN ORDER REQUIRING THE EMPLOYER TO PAY THE
FULL AMOUNT OF BACK PAY TO AN EMPLOYEE WHO HAD BEEN PAID TO WORK FOR
THE WORK PROJECTS ADMINISTRATION IN THE MEANTIME.  IN LABOR BOARD V.
SEVEN-UP CO., 344 U.S. 344, THE COURT INDICATED THAT EVEN AN OTHERWISE
SENSIBLE PROCEDURE FOR COMPUTING BACK PAY OF AN EMPLOYEE
DISCRIMINATORILY DISCHARGED MUST PROVIDE EXCEPTIONS WHERE THE SCHEME
WOULD MORE THAN COMPENSATE THE EMPLOYEE BECAUSE OF THE SEASONAL NATURE
OF THE EMPLOYER'S BUSINESS. 

THE BOARD NOW EMPHASIZES THAT ITS BROWN-OLDS REMEDY HAS A SUBSTANTIAL
TENDENCY TO DETER EMPLOYER-UNION ENCOURAGEMENT OF UNION MEMBERSHIP IN
VIOLATION OF SECS. 8(A)(3) AND 8(B)(2).  BUT IT ALSO CORRECTLY
RECOGNIZES THAT IN LIGHT OF THE REPUBLIC STEEL CASE, SUPRA, IT MUST
SHOW MORE THAN THAT THE REMEDY WILL TEND TO DETER UNFAIR LABOR
PRACTICES.  THE BOARD MUST ESTABLISH THAT THE REMEDY IS A REASONABLE
ATTEMPT TO PUT ARIGHT MATTERS THE UNFAIR LABOR PRACTICE SET AWRY.  AS I
UNDERSTAND ITS CONTENTIONS, THE BOARD ATTEMPTS TO MAKE THIS SHOWING BY
ARGUING THAT WHEREVER THERE HAS BEEN A NOT INSIGNIFICANT UNLAWFUL
ENCOURAGEMENT TO UNION MEMBERSHIP ALL MEMBERS SHOULD BE TAKEN TO HAVE
BEEN UNDER THE INFLUENCE OF COERCION, WHETHER OR NOT THEY WERE AWARE OF
THIS INFLUENCE OR WOULD HAVE ACTED DIFFERENTLY WITHOUT IT.  THE
EMPLOYEES ARE SAID TO HAVE BEEN COERCED IN MUCH THE SAME SENSE THAT A
MAN CONTENTEDLY SITTING IN THE LIVING ROOM OF HIS HOUSE MAY BE SAID TO
BE IMPRISONED BY THE BARRING OF THE DOORS WHETHER OR NOT HE WANTS TO
LEAVE.  (FN1)  ACCORDINGLY, THE BOARD HAS CONSIDERED UNNECESSARY AN
ACTUAL SHOWING OF EMPLOYEE UNWILLINGNESS TO BELONG TO THE UNION. 
WHAT WE MUST DECIDE, THEN, IS WHETHER IT IS WITHIN THE POWER OF THE
BOARD TO PROVIDE DUES-REIMBURSEMENT RELIEF FOR THIS TYPE OF IMPUTED
COERCION, OR, AS THE BOARD ALTERNATIVELY STATES ITS CASE, FOR THE
EMPLOYEE'S LOSS OF HIS STATUTORY RIGHT TO DECIDE FREELY WHETHER OR NOT
HE SHALL BE A UNION MEMBER.  THIS ISSUE IS NOT SATISFACTORILY RESOLVED
BY SIMPLY POINTING OUT THAT THERE HAS BEEN NO SHOWING OF FORCED PAYMENT
OF DUES AN EMPLOYEE WAS UNWILLING TO PAY, FOR, UNLESS I MISUNDERSTAND
THE BOARD, IT IS ARGUING THAT EVEN A WILLING UNION MEMBER LOSES
SOMETHING WHEN THERE IS A VIOLATION OF SEC. 8(B)(2), NAMELY THE FREEDOM
OF CHOICE WHICH THE STATUTE ASSURES HIM.  NOR, ONCE WE HAVE RECOGNIZED
THAT A TENDENCY TO DETER UNFAIR LABOR PRACTICES IS NOT ALONE SUFFICIENT
JUSTIFICATION FOR A BOARD ORDER OF AFFIRMATIVE RELIEF, DOES THE CONCEPT
OF PUNITIVENESS REALLY ADVANCE A SOLUTION.  DETERRENCE IS CERTAINLY A
DESIRABLE EVEN THOUGH NOT IN ITSELF A SUFFICIENTLY JUSTIFYING EFFECT OF
A BOARD ORDER. 

I THINK THE BOARD SHOULD BE DENIED THE USE OF ITS BROWN-OLDS REMEDY
IN SITUATIONS WHERE, AS HERE, IT IS NOT UNLIKELY THAT A SUBSTANTIAL
NUMBER OF EMPLOYEES WERE WILLING TO PAY DUES FOR UNION MEMBERSHIP
BECAUSE, AS I SEE IT, THE AMOUNT OF DUES OR OTHER EXACTIONS PAID IS NOT
A TENABLE WAY OF ESTIMATING THE VALUE A WILLING UNION MEMBER WOULD
PLACE ON HIS RIGHT TO CHOOSE FREELY WHETHER OR NOT HE WOULD BE OR
REMAIN A UNION MEMBER - AS IT WERE, ON HIS RIGHT TO CHANGE HIS MIND. 
THE AMOUNT OF DUES PAID DOES PERHAPS PROVIDE A MEANS OF ESTIMATING THE
VALUE OF BENEFITS RECEIVED FROM THE UNION.  OR THE AMOUNT OF DUES PAID
DOES PERHAPS MEASURE THE COST COERCION IMPOSES UPON AN EMPLOYEE WHO, IF
FREE TO CHOOSE, WOULD BE UNWILLING TO JOIN THE UNION (ALTHOUGH EVEN IN
THIS CASE A PROPER ADJUSTMENT MIGHT HAVE TO TAKE SOME ACCOUNT OF THE
UNION BENEFITS THE EMPLOYEE WOULD NOT HAVE RECEIVED HAD HE BEEN MERELY
A NONUNION EMPLOYEE IN A UNIONIZED BARGAINING UNIT).  BUT I CAN FIND NO
RATIONAL RELATIONSHIP AT ALL BETWEEN THE AMOUNT OF DUES PAID AND THE
VALUE AN EMPLOYEE WHO IS WILLING TO JOIN A UNION WOULD PLACE ON HIS
FREEDOM TO CHANGE HIS MIND.  (FN2)  IN THE ABSENCE OF A SHOWING OF SUCH
A RELATIONSHIP, THE BOARD'S BROWN-OLDS ORDER CAN NO MORE BE SUSTAINED
THAN COULD ITS ORDERS IN THE PHELPS DODGE OR REPUBLIC STEEL CASES. 

A DIFFERENT RESULT MIGHT FOLLOW IN THIS CASE IF VIRGINIA ELECTRIC HAD
HELD THAT SUCH A RELATIONSHIP EXISTS.  BUT I THINK THAT CASE HELD ONLY
THAT, AS A MATTER OF STATUTORY POLICY, AN EMPLOYEE COULD NOT EVER BE
DEEMED A WILLING MEMBER OF A COMPANY-DOMINATED UNION, CF.  MATTER OF
THE CARPENTER STEEL CO., 76 N.L.R.B. 670, AND THAT, ON CONSIDERATIONS
OF PRACTICALITY, THE EMPLOYER WHO HAD VIOLATED THE ACT SHOULD BEAR THE
UNAPPORTIONABLE COSTS OF SUSTAINING A UNION THAT SERVED THE EMPLOYER'S
FORBIDDEN PURPOSES AT LEAST AS MUCH AS IT SERVED THE EMPLOYEE'S
LEGITIMATE ONES. 

FN1  IT IS BUT ANOTHER FORMULTION OF THE SAME ARGUMENT WHEN THE
BOARD, IN ITS BRIEF, STATES THAT ACTUAL COERCION IS NOT REQUIRED SO
LONG AS THE DUES ARE COLLECTED PURSUANT TO AN ILLEGAL SYSTEM: "THE
VALIDITY OF A REIMBURSEMENT ORDER IS NOT CONTINGENT UPON A SHOWING THAT
THE EMPLOYEES PAID MONIES TO THE UNION UNWILLINGLY.  IF THE MONEY WERE
PAID PURSUANT TO AN ARRANGEMENT WHICH VIOLATED THE STATUTE, IT CAN BE
ORDERED REFUNDED PROVIDED THIS WOULD BEST EFFECTUATE THE STATUTORY
POLICIES ...  .  THAT THE MONEY MAY HAVE BEEN COLLECTED ANYHOW BY A
LEGAL MEANS DOES NOT PRIVILEGE THE USE OF AN ILLEGAL PROCEDURE TO
OBTAIN IT." 

FN2  FOR EXAMPLE, AN EMPLOYEE MAY BE MORE WILLING TO JOIN A UNION
WHICH CHARGES HIGH DUES AND PROVIDES SUBSTANTIAL BENEFITS THAN A UNION
WHICH CHARGES LITTLE AND GIVES LITTLE.  BUT THE BOARD FORMULA DECLARES
THAT IN THE CASE WHERE THE DUES ARE HIGHER THE VALUE OF THE LOSS OF
FREEDOM OF CHOICE IS GREATER. 

MR. JUSTICE WHITTAKER, DISSENTING. 

THE CONTRACT INVOLVED HERE NOT ONLY REQUIRED PERSONS SEEKING
EMPLOYMENT IN THE UNIT TO BE MEMBERS OF THE UNION, BUT ALSO REQUIRED
EACH OF THEM TO OBTAIN FROM THE "COUNCIL" AND PRESENT TO THE "UNION
STEWARD" ON THE JOB A "WORK PERMIT" BEFORE GOING TO WORK.  THAT THIS
CLOSED-SHOP HIRING ARRANGEMENT "COERCED EMPLOYEES IN THE EXERCISE OF
THE RIGHTS GUARANTEED IN SECTION 7," AND "CAUSED THE EMPLOYER TO
DISCRIMINATE AGAINST  ...  EMPLOYEES IN VIOLATION OF SUBSECTION (A)(3)"
OF THE ACT, CONTRARY TO THE EXPLICIT PROVISIONS OF SECS. 8(B)(1)(A) AND
8(B)(2) OF THE ACT, 29 U.S.C. SEC. 158, IS NOT HERE DENIED. 

TO ASSURE PROTECTION AND ENFORCEMENT OF THE RIGHTS IT HAD GUARANTEED
TO EMPLOYEES BY THE ACT, CONGRESS PROVIDED IN SEC. 10(C) THAT, UPON THE
FINDING OF AN "UNFAIR LABOR PRACTICE," "THE BOARD SHALL STATE ITS
FINDINGS OF FACT AND SHALL ISSUE  ...  AN ORDER REQUIRING SUCH PERSON
TO CEASE AND DESIST FROM SUCH UNFAIR LABOR PRACTICE, AND TO TAKE SUCH
AFFIRMATIVE ACTION  ...  AS WILL EFFECTUATE THE POLICIES" OF THE ACT. 

FINDING THAT THE CLOSED-SHOP HIRING ARRANGEMENT INVOLVED HERE
VIOLATED SECS. 8(B)(1)(A) AND 8(B)(2) OF THE ACT AND THUS CONSTITUTED
AN UNFAIR LABOR PRACTICE, THE BOARD, IN FASHIONING A REMEDY WHICH IT
DEEMED "NECESSARY TO EXPUNGE THE COERCIVE EFFECT" OF THE VIOLATIONS AND
TO "EFFECTUATE THE POLICIES OF THE ACT," ORDERED THE UNIONS NOT ONLY TO
CEASE THE VIOLATIONS BUT ALSO "TO REFUND TO THE EMPLOYEES INVOLVED THE
DUES  ...  AND WORK PERMIT FEES, PAID BY THE EMPLOYEES AS A PRICE FOR
THEIR EMPLOYMENT."  THE ONLY QUESTION HERE IS WHETHER THAT REMEDY WAS
WITHIN THE BOARD'S POWER.  LIKE THE COURT OF APPEALS, I THINK IT WAS. 

CONGRESS KNEW, OF COURSE, THAT IT COULD NOT FORESEE THE NATURE OF ALL
POSSIBLE VIOLATIONS OF THE ACT, AND ACCORDINGLY DID NOT UNDERTAKE TO
SPECIFY THE PRECISE REMEDY TO BE VISITED UPON OFFENDERS FOR PARTICULAR
VIOLATIONS. 

"IN THE NATURE OF THINGS CONGRESS COULD NOT CATALOGUE ALL THE DEVICES
AND STRATEGEMS FOR CIRCUMVENTING THE POLICIES OF THE ACT.  NOR COULD IT
DEFINE THE WHOLE GAMUT OF REMEDIES TO EFFECTUATE THESE POLICIES IN AN
INFINITE VARIETY OF SPECIFIC SITUATIONS.  CONGRESS MET THESE
DIFFICULTIES BY LEAVING THE ADAPTATION OF MEANS TO END TO THE EMPIRIC
PROCESS OF ADMINISTRATION.  THE EXERCISE OF THE PROCESS WAS COMMITTED
TO THE BOARD, SUBJECT TO LIMITED JUDICIAL REVIEW.  BECAUSE THE RELATION
OF REMEDY TO POLICY IS PECULIARLY A MATTER FOR ADMINISTRATIVE
COMPETENCE, COURTS MUST NOT ENTER THE ALLOWABLE AREA OF THE BOARD'S
DISCRETION  ...  . 

"THE ACT DOES NOT CREATE RIGHTS FOR INDIVIDUALS WHICH MUST BE
VINDICATED ACCORDING TO A RIGID SCHEME OF REMEDIES.  IT ENTRUSTS TO AN
EXPERT AGENCY THE MAINTENANCE AND PROMOTION OF INDUSTRIAL PEACE." 
PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194. 

TO HOLD THAT THE BOARD IS WITHOUT POWER TO DO MORE THAN ORDER THE
UNIONS NOT TO VIOLATE THE ACT IN THE FUTURE WOULD BE TO DENY ANY REMEDY
WHATEVER FOR VIOLATIONS.  IT IS CERTAIN THAT CONGRESS DID NOT INTEND BY
THE ACT "TO HOLD OUT TO EMPLOYEES AN ILLUSORY RIGHT FOR WHICH IT WAS
DENYING THEM A REMEDY."  GRAHAM V. BROTHERHOOD OF FIREMEN, 338 U.S.
232, 240.  IN DIRECTING THE BOARD TO ORDER "SUCH AFFIRMATIVE ACTION
...  AS WILL EFFECTUATE THE POLICIES OF THIS ACT," CONGRESS SEEMS
CLEARLY TO HAVE DIRECTED THE BOARD TO FASHION AND ENFORCE A REMEDY
"WHICH IT  ...  DEEMS ADEQUATE TO THAT END."  REPUBLIC STEEL CORP. V.
LABOR BOARD, 311 U.S. 7, 12. 

IN "FASHIONING REMEDIES TO UNDO THE EFFECTS OF VIOLATIONS OF THE ACT,
THE BOARD MUST DRAW ON ENLIGHTENMENT GAINED FROM EXPERIENCE."  LABOR
BOARD V. SEVEN-UP BOTTLING CO., 344 U.S. 344, 346.  AND SEE RADIO
OFFICERS' UNION V. LABOR BOARD, 347 U.S. 17, 49.  BASED ON ITS LONG
EXPERIENCE UP TO 1956, THAT, DESPITE THE BAN WHICH THE TAFT-HARTLEY
AMENDMENTS HAD IMPOSED NINE YEARS EARLIER, CLOSED-SHOP PRACTICES WERE
STILL BEING FOLLOWED IN SOME INDUSTRIES, (FN1) THE BOARD CONCLUDED THAT
A REMEDY MORE EFFECTIVE THAN A CEASE-AND-DESIST ORDER WAS REQUIRED. 
AND, FOLLOWING THE TEACHING OF THIS COURT'S OPINION IN VIRGINIA
ELECTRIC & POWER CO. V. LABOR BOARD, 319 U.S. 533, THE BOARD DECIDED
THAT AN APPROPRIATE ADDITIONAL REMEDY WOULD BE TO REQUIRE THAT THE
MONIES PAID TO THE UNION UNDER THE ILLEGAL ARRANGEMENT BE REFUNDED TO
THE EMPLOYEES, AND IT ACCORDINGLY SO HELD IN 1956 IN UNITED ASSOCIATION
OF JOURNEYMEN, ETC., AND BROWN-OLDS PLUMBING & HEATING CORP., 115
N.L.R.B.  594.  (FN2) 

IN VIRGINIA ELECTRIC & POWER CO. V. LABOR BOARD, SUPRA, THIS COURT
HAD UPHELD AN IDENTICAL REMEDY AS WITHIN THE BOARD'S POWER.  THERE AN
EMPLOYER HAD COMMITTED AN UNFAIR LABOR PRACTICE BY DOMINATING A PLANT
UNION IN VIOLATION OF SEC. 8(1), (2) AND (3) OF THE ACT.  IN FASHIONING
A REMEDY THAT IT DEEMED NECESSARY TO EFFECTUATE THE POLICIES OF THE
ACT, THE BOARD ORDERED THE EMPLOYER NOT ONLY TO CEASE THE PRACTICE BUT
ALSO TO REIMBURSE ITS EMPLOYEES FOR THE DUES WITHHELD FROM THEIR WAGES,
PURSUANT TO THEIR SIGNED AUTHORIZATIONS, AND PAID TO THE UNION. 
REJECTING THE EMPLOYER'S CONTENTION THAT THIS REMEDY WAS IN EXCESS OF
THE BOARD'S POWER, THIS COURT SAID: 

"THE BOARD HAS WIDE DISCRETION IN ORDERING AFFIRMATIVE ACTION; ITS
POWER IS NOT LIMITED TO THE ILLUSTRATIVE EXAMPLE OF ONE TYPE OF
PERMISSIBLE AFFIRMATIVE ORDER, NAMELY, REINSTATEMENT WITH OR WITHOUT
BACK PAY.  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 187-89. 
THE PARTICULAR MEANS BY WHICH THE EFFECTS OF UNFAIR LABOR PRACTICES ARE
TO BE EXPUNGED ARE MATTERS 'FOR THE BOARD NOT THE COURTS TO
DETERMINE.'  I.A. OF M. V. LABOR BOARD, SUPRA, AT P. 82; LABOR BOARD V.
LINK-BELT CO., SUPRA, AT P. 600.  HERE THE BOARD, IN THE EXERCISE OF
ITS INFORMED DISCRETION, HAS EXPRESSLY DETERMINED THAT REIMBURSEMENT IN
FULL OF THE CHECKED-OFF DUES IS NECESSARY TO EFFECTUATE THE POLICIES OF
THE ACT.  WE GIVE CONSIDERABLE WEIGHT TO TO THAT ADMINISTRATIVE
DETERMINATION.  IT 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.  THERE IS NO SUCH
SHOWING HERE."  319 U.S., AT 539-540. 

SUCH AN ORDER, SAID THE COURT, "RETURNS TO THE EMPLOYEES WHAT HAS
BEEN TAKEN FROM THEM" AND RESTORES TO THEM "THAT TRULY UNFETTERED
FREEDOM OF CHOICE WHICH THE ACT DEMANDS."  319 U.S., 541.  SURELY, IT
IS AS CORRECT TO SAY HERE, AS IT WAS THERE, THAT "AN ORDER SUCH AS
THIS, WHICH DEPRIVES A UNION OF ADVANTAGES ACCRUING FROM A PARTICULAR
METHOD OF SUBVERTING THE ACT, IS A PERMISSIBLE METHOD OF EFFECTUATING
THE STATUTORY POLICY," IBID., AND THAT IS ALL THE ORDER HERE PURPORTS
TO DO. 

IT IS ARGUED THAT THE VIRGINIA CASE IS DISTINGUISHABLE ON THE GROUND
THAT IT DEALT WITH AN EMPLOYER-DOMINATED UNION.  BUT THE QUESTION IS
ONE OF POWER.  THE FACT THAT THE UNFAIR LABOR PRACTICE THERE WAS BY THE
EMPLOYER RATHER THAN BY THE UNION, AS HERE, IS NOT A DISTINGUISHING
DIFFERENCE.  NOR DOES THE FACT THAT EMPLOYEES' RIGHTS WERE THERE
INFRINGED BY A VIOLATION OF SEC. 8(1), (2) AND (3) OF THE ACT, WHEREAS
THEY ARE HERE INFRINGED BY A VIOLATION OF SECS. 8(B)(1)(A) AND 8(B)(2)
OF THE ACT, MAKE ANY DIFFERENCE.  IN EACH INSTANCE THE VIOLATION
CONSTITUTED AN UNFAIR LABOR PRACTICE, AND THE QUESTION IS WHETHER, IN
FASHIONING A REMEDY TO EFFECTUATE THE POLICIES OF THE ACT, THE BOARD
HAS POWER, IN ITS INFORMED DISCRETION, TO ORDER REIMBURSEMENT OF THE
DUES PAID UNDER THE ILLEGAL ARRANGEMENT.  IT WOULD SEEM THAT IF THE
BOARD HAD POWER SO TO ORDER IN THE VIRGINIA CASE, AS THIS COURT HELD,
IT SIMILARLY HAS POWER SO TO ORDER IN THIS CASE.  NOTHING IN THE
VIRGINIA CASE APPEARS TO LIMIT THE BOARD'S POWER OF RESTITUTION TO
CASES INVOLVING EMPLOYER-DOMINATED UNIONS OR TO ANY OTHER PARTICULAR
TYPE OF VIOLATION, BUT THE POWER SEEMS CLEARLY ENOUGH TO BE INVOCABLE
IN ANY APPROPRIATE CASE, IN THE INFORMED DISCRETION OF THE BOARD, AND
SUCH HAS BEEN THE UNDERSTANDING OF THE COURTS.  (FN3) 

THE CONTENTIONS THAT SUCH AN ORDER OF RESTITUTION IS BEYOND THE
BOARD'S POWER BECAUSE THE EMPLOYEES RECEIVED SOME BENEFITS FROM THE
UNION, DESPITE THE ILLEGAL HIRING ARRANGEMENT, AND THAT TO ALLOW
RESTITUTION OF THE DUES COLLECTED BY THE UNION UNDER THE ILLEGAL
ARRANGEMENT WOULD BE TO ENFORCE A "PENALTY" WHICH THE BOARD HAS NO
POWER TO ASSESS, WERE FULLY ANSWERED TO THE CONTRARY IN THE VIRGINIA
CASE, 319 U.S., AT 542-543. 

TO REQUIRE SPECIFIC PROOF OF INDIVIDUAL INJURY TO ALL EMPLOYEES
"WOULD IMPOSE IMPOSSIBLE ADMINISTRATIVE BURDENS," LABOR BOARD V. REVERE
METAL ART CO., SUPRA, AT 101, AND PREVENT EFFECTIVE ENFORCEMENT OF THE
ACT.  HENCE THAT CHARACTER AND FULLNESS OF PROOF IS NOT REQUIRED.  SEE
RADIO OFFICERS' UNION V. LABOR BOARD, 347 U.S. 17, 48-52.  AND INASMUCH
AS THE GENERAL COUNSEL OF THE BOARD MAY ISSUE COMPLAINTS ONLY UPON
CHARGES FILED WITH HIM, ID., AT 53, AND THE BOARD'S EXPERIENCE SEEMS TO
HAVE PROVED THAT ONLY A FEW EMPLOYEES WILL BE SUFFICIENTLY DARING AND
DETERMINED OVERTLY TO COMPLAIN REGARDLESS OF THE NATURE OF THE
VIOLATION, IT WOULD SEEM THAT THE BOARD, IN THE EXERCISE OF ITS
INFORMED DISCRETION, MAY REASONABLY CONCLUDE, EVEN IN THE ABSENCE OF
SPECIFIC PROOF OF INJURY TO ALL THE EMPLOYEES, THAT FULL RESTITUTION OF
THE DUES COLLECTED BY THE UNION UNDER AN ILLEGAL ARRANGEMENT IS
NECESSARY TO EFFECTUATE THE POLICIES OF THE ACT. 

FOR THESE REASONS, I THINK THE BOARD ACTED WITHIN ITS POWER IN
ORDERING RESTITUTION OF THE DUES COLLECTED UNDER THE ADMITTEDLY ILLEGAL
ARRANGEMENT HERE, THAT THE COURT OF APPEALS CORRECTLY ENFORCED THE
ORDER, AND THAT ITS JUDGMENT SHOULD BE AFFIRMED. 

FN1  AS TWO APPARENTLY DISINTERESTED AUTHORITIES HAVE NOTED: 

"BY 1945, THE CLOSED SHOP HAD BECOME ONE OF THE BASIC FEATURES OF
INDUSTRIAL RELATIONS IN THE BUILDING INDUSTRY.  THIS SITUATION HAS
LARGELY REMAINED TRUE IN PRACTICE UP TO THE PRESENT TIME, DESPITE THE
PASSAGE OF LEGISLATION IN 1947 PROHIBITING THIS TYPE OF PROVISION FROM
BEING INCLUDED IN COLLECTIVE AGREEMENTS. 

     *         *         *         *         * 

"  ...  IN ALL OF THE STRONGLY UNIONIZED AREAS STUDIED DURING THE
SUMMER OF 1952, EMPLOYMENT ARRANGEMENTS EQUIVALENT TO THOSE UNDER A
CLOSED SHOP WERE IN EFFECT.  MEMBERSHIP IN THE UNION WAS ALMOST
UNIVERSALLY REGARDED AS A PREREQUISITE FOR OBTAINING EMPLOYMENT; IN
MOST INSTANCES MEN WERE EMPLOYED DIRECTLY OR INDIRECTLY THROUGH THE
UNION ITSELF.  BOTH PARTIES VIEWED THIS AS STANDARD PRACTICE AND SHOWED
LITTLE OR NO CONCERN FOR THE ILLEGALITY OF THE ARRANGEMENT."  HABER AND
LEVINSON, LABOR RELATIONS AND PRODUCTIVITY IN THE BUILDING TRADES
(UNIV.  OF MICHIGAN, 1956), PP. 62, 71.    FN2  THE BOARD THERE
STATED: 

"  ...  THE TAFT-HARTLEY AMENDMENTS HAVE MADE UNLAWFUL ALL CLOSED
SHOP CONTRACTS AS CONTRARY TO PUBLIC POLICY, PROSCRIBING SUCH CONDUCT
BY UNIONS AS UNFAIR LABOR PRACTICES.  THE DUES REQUIRED AND COLLECTED
UNDER SUCH A CONTRACT  ...  CONTRAVENE THAT PUBLIC POLICY.  IT IS NO
LONGER REQUIRED BY THE ACT THAT THE UNION BE COMPANY-DOMINATED IN ORDER
FOR COLLECTION OF DUES TO BE UNLAWFUL UNDER A CLOSED-SHOP CONTRACT. 
HERE, THE DUES AND THE ASSESSMENTS WERE REQUIRED AND COLLECTED PURSUANT
TO A CONTRACT WHICH CLEARLY CONTRAVENED THE PUBLIC POLICY OF THE ACT. 
DUES AND ASSESSMENTS HERE COLLECTED CONSTITUTED THE PRICE THESE
EMPLOYEES PAID IN ORDER TO RETAIN THEIR JOBS.  WE THEREFORE CONCLUDE
THAT THE REMEDY OF REIMBURSEMENT OF ALL SUCH MONIES IS APPROPRIATE AND
NECESSARY TO EXPUNGE THE ILLEGAL EFFECTS OF THE UNFAIR LABOR PRACTICES
FOUND HERE. 

     *         *         *         *         * 

"IT IS OUR VIEW THAT, WHERE PAYMENT OF DUES IS REQUIRED UNDER A
CLOSED-SHOP CONTRACT, AS WHERE ASSESSMENTS ARE REQUIRED UNDER AN
OTHERWISE VALID AGREEMENT, REIMBURSEMENT OF SUCH MONIES ACTUALLY
COLLECTED WILL BEST EFFECTUATE THE POLICIES OF THE ACT.  OTHERWISE THE
VERY FRUITS OF THE UNFAIR LABOR PRACTICE ITSELF WILL REMAIN IN THE
HANDS OF THE RESPONDENT  ...  ."  115 N.L.R.B., AT 600-601. 

FN3  LABOR BOARD V. REVERE METAL ART CO., 280 F.2D 96, 101 (C.A.2D
CIR.); LABOR BOARD V. LOCAL 294, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, 279 F.2D 83, 86-88 (C.A.2D CIR.); O'NEILL INTL.  DETECTIVE
AGENCY V. LABOR BOARD, 46 L.R.R.M. 2503 (C.A. 3D CIR.); DIXIE BEDDING
CO. V. LABOR BOARD, 268 F.2D 901, 907 (C.A. 5TH CIR.).
..END :











LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA V. NATIONAL LABOR RELATIONS BOARD
365 U.S. 667 


NO. 64.  ARGUED FEBRUARY 28, 1961 - DECIDED APRIL 17, 1961* - 107 U.S.
APP. D.C. 188, 275 F.2D 646, AFFIRMED IN PART AND REVERSED IN PART. 

*TOGETHER WITH NO. 85, NATIONAL LABOR RELATIONS BOARD V. LOCAL 357,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, ALSO ON CERTIORARI TO THE SAME COURT. 


AN ASSOCIATION OF MOTOR TRUCK OPERATORS ENTERED INTO A COLLECTIVE
BARGAINING AGREEMENT WITH THE BROTHERHOOD OF TEAMSTERS AND SEVERAL OF
ITS LOCAL UNIONS, WHICH, IN EFFECT, REQUIRED THE OPERATORS TO EMPLOY
CASUAL EMPLOYEES "ON A SENIORITY BASIS" THROUGH A HIRING HALL OPERATED
BY ONE OF THE UNIONS, "IRRESPECTIVE OF WHETHER SUCH EMPLOYEE IS OR IS
NOT A MEMBER OF THE UNION."  A UNION MEMBER OBTAINED CASUAL EMPLOYMENT
WITH AN OPERATOR INDEPENDENTLY OF THE UNION AND THE HIRING HALL, AND HE
WAS DISCHARGED WHEN THE UNION COMPLAINED.  THE NATIONAL LABOR RELATIONS
BOARD HELD THAT THE HIRING-HALL ARRANGEMENT WAS UNLAWFUL PER SE AND
THAT THE EMPLOYER HAD VIOLATED SEC. 8(A)(1) AND SEC. 8(A)(3) AND THE
UNION HAD VIOLATED SEC. 8(B)(2) AND SEC. 8(B)(1)(A) OF THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED.  IT ORDERED THEM, INTER ALIA, TO
REIMBURSE ALL CASUAL EMPLOYEES FOR FEES AND DUES PAID TO THE UNION
DURING THE PERIOD COVERED BY THE COMPLAINT.  HELD: 

1.  THE BOARD WAS NOT AUTHORIZED UNDER SEC. 10(C) TO REQUIRE
REIMBURSEMENT OF DUES AND FEES PAID TO THE UNION.  CARPENTERS LOCAL 60
V. LABOR BOARD, ANTE, P. 651.  PP. 670-671. 

2.  THE BOARD ERRED IN HOLDING THAT THE HIRING-HALL ARRANGEMENT WAS
UNLAWFUL PER SE, SINCE SUCH ARRANGEMENTS ARE NOT UNLAWFUL UNLESS THEY
IN FACT RESULT IN DISCRIMINATIONS PROHIBITED BY THE ACT. 

LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, V. NATIONAL LABOR RELATIONS
BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER UNION (ALONG WITH THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS AND A NUMBER OF OTHER AFFILIATED LOCAL UNIONS) EXECUTED A
THREE-YEAR COLLECTIVE BARGAINING AGREEMENT WITH CALIFORNIA TRUCKING
ASSOCIATIONS, WHICH REPRESENTED A GROUP OF MOTOR TRUCK OPERATORS IN
CALIFORNIA.  THE PROVISIONS OF THE CONTRACT RELATING TO HIRING OF
CASUAL OR TEMPORARY EMPLOYEES WERE AS FOLLOWS: 

"CASUAL EMPLOYEES SHALL, WHEREVER THE UNION MAINTAINS A DISPATCHING
SERVICE, BE EMPLOYED ONLY ON A SENIORITY BASIS IN THE INDUSTRY WHENEVER
SUCH SENIOR EMPLOYEES ARE AVAILABLE.  AN AVAILABLE LIST WITH SENIORITY
STATUS WILL BE KEPT BY THE UNIONS, AND EMPLOYEES REQUESTED WILL BE
DISPATCHED UPON CALL TO ANY EMPLOYER WHO IS A PARTY TO THIS AGREEMENT. 
SENIORITY RATING OF SUCH EMPLOYEES SHALL BEGIN WITH A MINIMUM OF THREE
MONTHS SERVICE IN THE INDUSTRY, IRRESPECTIVE OF WHETHER SUCH EMPLOYEE
IS OR IS NOT A MEMBER OF THE UNION. 

"DISCHARGE OF ANY EMPLOYEE BY ANY EMPLOYER SHALL BE GROUNDS FOR
REMOVAL OF ANY EMPLOYEE FROM SENIORITY STATUS.  NO CASUAL EMPLOYEE
SHALL BE EMPLOYED BY ANY EMPLOYER WHO IS A PARTY TO THIS AGREEMENT IN
VIOLATION OF SENIORITY STATUS IF SUCH EMPLOYEES ARE AVAILABLE AND IF
THE DISPATCHING SERVICE FOR SUCH EMPLOYEES IS AVAILABLE.  THE EMPLOYER
SHALL FIRST CALL THE UNION OR THE DISPATCHING HALL DESIGNATED BY THE
UNION FOR SUCH HELP.  IN THE EVENT THE EMPLOYER IS NOTIFIED THAT SUCH
HELP IS NOT AVAILABLE, OR IN THE EVENT THE EMPLOYEES CALLED FOR DO NOT
APPEAR FOR WORK AT THE TIME DESIGNATED BY THE EMPLOYER, THE EMPLOYER
MAY HIRE FROM ANY OTHER AVAILABLE SOURCE." 

ACCORDINGLY THE UNION MAINTAINED A HIRING HALL FOR CASUAL EMPLOYEES. 
ONE SLATER WAS A MEMBER OF THE UNION AND HAD CUSTOMARILY USED THE
HIRING HALL.  BUT IN AUGUST 1955 HE OBTAINED CASUAL EMPLOYMENT WITH AN
EMPLOYER WHO WAS PARTY TO THE HIRING-HALL AGREEMENT WITHOUT BEING
DISPATCHED BY THE UNION.  HE WORKED UNTIL SOMETIME IN NOVEMBER OF THAT
YEAR, WHEN HE WAS DISCHARGED BY THE EMPLOYER ON COMPLAINT OF THE UNION
THAT HE HAD NOT BEEN REFERRED THROUGH THE HIRING-HALL ARRANGEMENT. 

SLATER MADE CHARGES AGAINST THE UNION AND THE EMPLOYER.  THOUGH, AS
PLAIN FROM THE TERMS OF THE CONTRACT, THERE WAS AN EXPRESS PROVISION
THAT EMPLOYEES WOULD NOT BE DISCRIMINATED AGAINST BECAUSE THEY WERE OR
WERE NOT UNION MEMBERS, THE BOARD FOUND THAT THE HIRING-HALL PROVISION
WAS UNLAWFUL PER SE AND THAT THE DISCHARGE OF SLATER ON THE UNION'S
REQUEST CONSTITUTED A VIOLATION BY THE EMPLOYER OF SEC. 8(A)(1) AND
SEC. 8(A)(3) AND A VIOLATION BY THE UNION OF SEC. 8(B)(2) AND SEC.
8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE TAFT
HARTLEY ACT, 61 STAT.  140-141, AS AMENDED, 29 U.S.C. SEC. 158.  (FN1)
THE BOARD ORDERED, INTER ALIA, THAT THE COMPANY AND THE UNION CEASE
GIVING ANY EFFECT TO THE HIRING-HALL AGREEMENT; THAT THEY JOINTLY AND
SEVERALLY REIMBURSE SLATER FOR ANY LOSS SUSTAINED BY HIM AS A RESULT OF
HIS DISCHARGE; AND THAT THEY JOINTLY AND SEVERALLY REIMBURSE ALL CASUAL
EMPLOYEES FOR FEES AND DUES PAID BY THEM TO THE UNION BEGINNING SIX
MONTHS PRIOR TO THE DATE OF THE FILING OF THE CHARGE.  121 N.L.R.B.
1629. 

THE UNION PETITIONED THE COURT OF APPEALS FOR REVIEW OF THE BOARD'S
ACTION, AND THE BOARD MADE A CROSS-APPLICATION FOR ENFORCEMENT.  THAT
COURT SET ASIDE THE PORTION OF THE ORDER REQUIRING A GENERAL
REIMBURSEMENT OF DUES AND FEES.  BY A DIVIDED VOTE IT UPHELD THE BOARD
IN RULING THAT THE HIRING-HALL AGREEMENT WAS ILLEGAL PER SE.  107 U.S.
APP. D.C. 188, 275 F.2D 646.  THOSE RULINGS ARE HERE ON CERTIORARI, 363
U.S. 837, ONE ON THE PETITION OF THE UNION, THE OTHER ON PETITION OF
THE BOARD. 

OUR DECISION IN CARPENTERS LOCAL 60 V. LABOR BOARD, DECIDED THIS DAY,
ANTE, P. 651, IS DISPOSITIVE OF THE PETITION OF THE BOARD THAT ASKS US
TO DIRECT ENFORCEMENT OF THE ORDER OF REIMBURSEMENT.  THE JUDGMENT OF
THE COURT OF APPEALS ON THAT PHASE OF THE MATTER IS AFFIRMED. 

THE OTHER ASPECT OF THE CASE GOES BACK TO THE BOARD'S RULING IN
MOUNTAIN PACIFIC CHAPTER, 119 N.L.R.B. 883.  THAT DECISION, RENDERED IN
1958, DEPARTED FROM EARLIER RULINGS (FN2) AND HELD, ABE MURDOCK
DISSENTING, THAT THE HIRING-HALL AGREEMENT, DESPITE THE INCLUSION OF A
NONDISCRIMINATION CLAUSE, WAS ILLEGAL PER SE: 

"HERE THE VERY GRANT OF WORK AT ALL DEPENDS SOLELY UPON UNION
SPONSORSHIP, AND IT IS REASONABLE TO INFER THAT THE ARRANGEMENT
DISPLAYS AND ENHANCES THE UNION'S POWER AND CONTROL OVER THE EMPLOYMENT
STATUS.  HERE ALL THAT APPEARS IS UNILATERAL UNION DETERMINATION AND
SUBSERVIENT EMPLOYER ACTION WITH NO ABOVEBOARD EXPLANATION AS TO THE
REASON FOR IT, AND IT IS REASONABLE TO INFER THAT THE UNION WILL BE
GUIDED IN ITS CONCESSION BY AN EYE TOWARDS WINNING COMPLIANCE WITH A
MEMBERSHIP OBLIGATION OR UNION FEALTY IN SOME OTHER RESPECT.  THE
EMPLOYERS HERE HAVE SURRENDERED ALL HIRING AUTHORITY TO THE UNION AND
HAVE GIVEN ADVANCE NOTICE VIA THE ESTABLISHED HIRING HALL TO THE WORLD
AT LARGE THAT THE UNION IS ARBITRARY MASTER AND IS CONTRACTUALLY
GUARANTEED TO REMAIN SO.  FROM THE FINAL AUTHORITY OVER HIRING VESTED
IN THE RESPONDENT UNION BY THE THREE AGC CHAPTERS, THE INFERENCE OF
ENCOURAGEMENT OF UNION MEMBERSHIP IS INESCAPABLE."  ID., 896. 

THE BOARD WENT ON TO SAY THAT A HIRING-HALL ARRANGEMENT TO BE LAWFUL
MUST CONTAIN PROTECTIVE PROVISIONS.  ITS VIEWS WERE STATED AS FOLLOWS: 

"WE BELIEVE, HOWEVER, THAT THE INHERENT AND UNLAWFUL ENCOURAGEMENT OF
UNION MEMBERSHIP THAT STEMS FROM UNFETTERED UNION CONTROL OVER THE
HIRING PROCESS WOULD BE NEGATED, AND WE WOULD FIND AN AGREEMENT TO BE
NONDISCRIMINATORY ON ITS FACE, ONLY IF THE AGREEMENT EXPLICITLY
PROVIDED THAT: 

"(1)  SELECTION OF APPLICANTS FOR REFERRAL TO JOBS SHALL BE ON A
NONDISCRIMINATORY BASIS AND SHALL NOT BE BASED ON, OR IN ANY WAY
AFFECTED BY, UNION MEMBERSHIP, BYLAWS, RULES, REGULATIONS,
CONSTITUTIONAL PROVISIONS, OR ANY OTHER ASPECT OR OBLIGATION OF UNION
MEMBERSHIP, POLICIES, OR REQUIREMENTS. 

"(2)  THE EMPLOYER RETAINS THE RIGHT TO REJECT ANY JOB APPLICANT
REFERRED BY THE UNION. 

"(3)  THE PARTIES TO THE AGREEMENT POST IN PLACES WHERE NOTICES TO
EMPLOYEES AND APPLICANTS FOR EMPLOYMENT ARE CUSTOMARILY POSTED, ALL
PROVISIONS RELATING TO THE FUNCTIONING OF THE HIRING ARRANGEMENT,
INCLUDING THE SAFEGUARDS THAT WE DEEM ESSENTIAL TO THE LEGALITY OF AN
EXCLUSIVE HIRING AGREEMENT."  ID., 897. 

THE BOARD RECOGNIZES THAT THE HIRING HALL CAME INTO BEING "TO
ELIMINATE WASTEFUL, TIME-CONSUMING, AND REPETITIVE SCOUTING FOR JOBS BY
INDIVIDUAL WORKMEN AND HAPHAZARD UNECONOMICAL SEARCHES BY EMPLOYERS." 
ID., 896, N. 8.  THE HIRING HALL AT TIMES HAS BEEN A USEFUL ADJUNCT TO
THE CLOSED SHOP.   (FN3)  BUT CONGRESS MAY HAVE THOUGHT THAT IT NEED
NOT SERVE THAT CAUSE, THAT IN FACT IT HAS SERVED WELL BOTH LABOR AND
MANAGEMENT - PARTICULARLY IN THE MARITIME FIELD AND IN THE BUILDING AND
CONSTRUCTION INDUSTRY.  (FN4)  IN THE LATTER THE CONTRACTOR WHO
FREQUENTLY IS A STRANGER TO THE AREA WHERE THE WORK IS DONE REQUIRES A
"CENTRAL SOURCE" FOR HIS EMPLOYMENT NEEDS; (FN5) AND A MAN LOOKING FOR
A JOB FINDS IN THE HIRING HALL "AT LEAST A MINIMUM GUARANTEE OF
CONTINUED EMPLOYMENT."  (FN6) 

CONGRESS HAS NOT OUTLAWED THE HIRING HALL, THOUGH IT HAS OUTLAWED THE
CLOSED SHOP EXCEPT WITHIN THE LIMITS PRESCRIBED IN THE PROVISOS TO SEC.
8(A)(3).  (FN7)  SENATOR TAFT MADE CLEAR HIS VIEWS THAT HIRING HALLS
ARE USEFUL, THAT THEY ARE NOT ILLEGAL PER SE, THAT UNIONS SHOULD BE
ABLE TO OPERATE THEM SO LONG AS THEY ARE NOT USED TO CREATE A CLOSED
SHOP: 

"IN ORDER TO MAKE CLEAR THE REAL INTENTION OF CONGRESS, IT SHOULD BE
CLEARLY STATED THAT THE HIRING HALL IS NOT NECESSARILY ILLEGAL.  THE
EMPLOYER SHOULD BE ABLE TO MAKE A CONTRACT WITH THE UNION AS AN
EMPLOYMENT AGENCY.  THE UNION FREQUENTLY IS THE BEST EMPLOYMENT
AGENCY.  THE EMPLOYER SHOULD BE ABLE TO GIVE NOTICE OF VACANCIES, AND
IN THE NORMAL COURSE OF EVENTS TO ACCEPT MEN SENT TO HIM BY THE HIRING
HALL.  HE SHOULD NOT BE ABLE TO BIND HIMSELF, HOWEVER, TO REJECT
NONUNION MEN IF THEY APPLY TO HIM; NOR SHOULD HE BE ABLE TO CONTRACT TO
ACCEPT MEN ON A ROTARY-HIRING BASIS  ...  . 

     *         *         *         *       * 

"  ...  THE NATIONAL LABOR RELATIONS BOARD AND THE COURTS DID NOT
FIND HIRING HALLS AS SUCH ILLEGAL, BUT MERELY CERTAIN PRACTICES UNDER
THEM.  THE BOARD AND THE COURT FOUND THAT THE MANNER IN WHICH THE
HIRING HALLS OPERATED CREATED IN EFFECT A CLOSED SHOP IN VIOLATION OF
THE LAW.  NEITHER THE LAW NOR THESE DECISIONS FORBID HIRING HALLS, EVEN
HIRING HALLS OPERATED BY THE UNIONS AS LONG AS THEY ARE NOT SO OPERATED
AS TO CREATE A CLOSED SHOP WITH ALL OF THE ABUSES POSSIBLE UNDER SUCH
AN ARRANGEMENT, INCLUDING DISCRIMINATION AGAINST EMPLOYEES, PROSPECTIVE
EMPLOYEES, MEMBERS OF UNION MINORITY GROUPS, AND OPERATION OF A CLOSED
UNION."  S. REP. NO. 1827, 81ST CONG., 2D SESS., PP. 13, 14. 

THERE BEING NO EXPRESS BAN OF HIRING HALLS IN ANY PROVISIONS OF THE
ACT, THOSE WHO ADD ONE, WHETHER IT BE THE BOARD OR THE COURTS, ENGAGE
IN A LEGISLATIVE ACT.  THE ACT DEALS WITH DISCRIMINATION EITHER BY THE
EMPLOYERS OR UNIONS THAT ENCOURAGES OR DISCOURAGES UNION MEMBERSHIP. 
(FN8)  AS RESPECTS SEC. 8(A)(3) WE SAID IN RADIO OFFICERS V. LABOR
BOARD, 347 U.S. 17, 42-43: 

"THE LANGUAGE OF SEC. 8(A)(3) IS NOT AMBIGUOUS.  THE UNFAIR LABOR
PRACTICE IS FOR AN EMPLOYER TO ENCOURAGE OR DISCOURAGE MEMBERSHIP BY
MEANS OF DISCRIMINATION.  THUS THIS SECTION DOES NOT OUTLAW ALL
ENCOURAGEMENT OR DISCOURAGEMENT OF MEMBERSHIP IN LABOR ORGANIZATIONS;
ONLY SUCH AS IS ACCOMPLISHED BY DISCRIMINATION IS PROHIBITED.  NOR DOES
THIS SECTION OUTLAW DISCRIMINATION IN EMPLOYMENT AS SUCH; ONLY SUCH
DISCRIMINATION AS ENCOURAGES OR DISCOURAGES MEMBERSHIP IN A LABOR
ORGANIZATION IS PROSCRIBED." 

IT IS THE "TRUE PURPOSE" OR "REAL MOTIVE" IN HIRING OR FIRING THAT
CONSTITUTES THE TEST.  ID., 43.   SOME CONDUCT MAY BY ITS VERY NATURE
CONTAIN THE IMPLICATIONS OF THE REQUIRED INTENT; THE NATURAL
FORESEEABLE CONSEQUENCES OF CERTAIN ACTION MAY WARRANT THE INFERENCE. 
ID., 45.  AND SEE REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S.
793.  THE EXISTENCE OF DISCRIMINATION MAY AT TIMES BE INFERRED BY THE
BOARD, FOR "IT IS PERMISSIBLE TO DRAW ON EXPERIENCE IN FACTUAL
INQUIRIES."  RADIO OFFICERS V. LABOR BOARD, SUPRA, 49. 

BUT SURELY DISCRIMINATION CANNOT BE INFERRED FROM THE FACE OF THE
INSTRUMENT WHEN THE INSTRUMENT SPECIFICALLY PROVIDES THAT THERE WILL BE
NO DISCRIMINATION AGAINST "CASUAL EMPLOYEES" BECAUSE OF THE PRESENCE OR
ABSENCE OF UNION MEMBERSHIP.  THE ONLY COMPLAINT IN THE CASE WAS BY
SLATER, A UNION MEMBER, WHO SOUGHT TO CIRCUMVENT THE HIRING-HALL
AGREEMENT.  WHEN AN EMPLOYER AND THE UNION ENFORCE THE AGREEMENT
AGAINST UNION MEMBERS, WE CANNOT SAY WITHOUT MORE THAT EITHER INDULGES
IN THE KIND OF DISCRIMINATION TO WHICH THE ACT IS ADDRESSED. 

IT MAY BE THAT THE VERY EXISTENCE OF THE HIRING HALL ENCOURAGES UNION
MEMBERSHIP.  WE MAY ASSUME THAT IT DOES.  THE VERY EXISTENCE OF THE
UNION HAS THE SAME INFLUENCE.  WHEN A UNION ENGAGES IN COLLECTIVE
BARGAINING AND OBTAINS INCREASED WAGES AND IMPROVED WORKING CONDITIONS,
ITS PRESTIGE DOUBTLESS RISES AND, ONE MAY ASSUME, MORE WORKERS ARE
DRAWN TO IT.  WHEN A UNION NEGOTIATES COLLECTIVE BARGAINING AGREEMENTS
THAT INCLUDE ARBITRATION CLAUSES AND SUPERVISES THE FUNCTIONING OF
THOSE PROVISIONS SO AS TO GET EQUITABLE ADJUSTMENTS OF GRIEVANCES,
UNION MEMBERSHIP MAY ALSO BE ENCOURAGED.  THE TRUTH IS THAT THE UNION
IS A SERVICE AGENCY THAT PROBABLY ENCOURAGES MEMBERSHIP WHENEVER IT
DOES ITS JOB WELL.  BUT, AS WE SAID IN RADIO OFFICERS V. LABOR BOARD,
SUPRA, THE ONLY ENCOURAGEMENT OR DISCOURAGEMENT OF UNION MEMBERSHIP
BANNED BY THE ACT IS THAT WHICH IS "ACCOMPLISHED BY DISCRIMINATION." 
P. 43. 

NOTHING IS INFERABLE FROM THE PRESENT HIRING-HALL PROVISION EXCEPT
THAT EMPLOYER AND UNION ALIKE SOUGHT TO ROUTE "CASUAL EMPLOYEES"
THROUGH THE UNION HIRING HALL AND REQUIRED A UNION MEMBER WHO
CIRCUMVENTED IT TO ADHERE TO IT. 

IT MAY BE THAT HIRING HALLS NEED MORE REGULATION THAN THE ACT
PRESENTLY AFFORDS.  AS WE HAVE SEEN, THE ACT AIMS AT EVERY PRACTICE,
ACT, SOURCE OR INSTITUTION WHICH IN FACT IS USED TO ENCOURAGE AND
DISCOURAGE UNION MEMBERSHIP BY DISCRIMINATION IN REGARD TO HIRE OR
TENURE, TERM OR CONDITION OF EMPLOYMENT.  PERHAPS THE CONDITIONS WHICH
THE BOARD ATTACHES TO HIRING-HALL ARRANGEMENTS WILL IN TIME APPEAL TO
THE CONGRESS.  YET, WHERE CONGRESS HAS ADOPTED A SELECTIVE SYSTEM FOR
DEALING WITH EVILS, THE BOARD IS CONFINED TO THAT SYSTEM.  LABOR BOARD
V. DRIVERS LOCAL UNION, 362 U.S. 274, 284-290.  WHERE, AS HERE,
CONGRESS HAS AIMED ITS SANCTIONS ONLY AT SPECIFIC DISCRIMINATORY
PRACTICES, THE BOARD CANNOT GO FARTHER AND ESTABLISH A BROADER, MORE
PERVASIVE REGULATORY SCHEME. 

THE PRESENT AGREEMENT FOR A UNION HIRING HALL HAS A PROTECTIVE CLAUSE
IN IT, AS WE HAVE SAID; AND THERE IS NO EVIDENCE THAT IT WAS IN FACT
USED UNLAWFULLY.  WE CANNOT ASSUME THAT A UNION CONDUCTS ITS OPERATIONS
IN VIOLATION OF LAW OR THAT THE PARTIES TO THIS CONTRACT DID NOT INTEND
TO ADHERE TO ITS EXPRESS LANGUAGE.  YET WE WOULD HAVE TO MAKE THOSE
ASSUMPTIONS TO AGREE WITH THE BOARD THAT IT IS REASONABLE TO INFER THE
UNION WILL ACT DISCRIMINATORILY.    MOREOVER, THE HIRING HALL, UNDER
THE LAW AS IT STANDS, IS A MATTER OF NEGOTIATION BETWEEN THE PARTIES. 
THE BOARD HAS NO POWER TO COMPEL DIRECTLY OR INDIRECTLY THAT THE HIRING
HALL BE INCLUDED OR EXCLUDED IN COLLECTIVE AGREEMENTS.  CF. LABOR BOARD
V. AMERICAN INS. CO., 343 U.S. 395, 404.  ITS POWER, SO FAR AS HERE
RELEVANT, IS RESTRICTED TO THE ELIMINATION OF DISCRIMINATION.  SINCE
THE PRESENT AGREEMENT CONTAINS SUCH A PROHIBITION, THE BOARD IS
CONFINED TO DETERMINING WHETHER DISCRIMINATION HAS IN FACT BEEN
PRACTICED.  IF HIRING HALLS ARE TO BE SUBJECTED TO REGULATION THAT IS
LESS SELECTIVE AND MORE PERVASIVE, CONGRESS NOT THE BOARD IS THE AGENCY
TO DO IT.  AFFIRMED IN PART AND REVERSED IN PART. 

FN1  SECTION 8 PROVIDES IN RELEVANT PART: 

"(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 7: 

     *        *         *         *         * 

"(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  ...  . 

     *         *         *         *         * 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7 ...  . 

"(2)  TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE
AGAINST AN EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3) OR TO
DISCRIMINATE AGAINST AN EMPLOYEE WITH RESPECT TO WHOM MEMBERSHIP IN
SUCH ORGANIZATION HAS BEEN DENIED OR TERMINATED ON SOME GROUND OTHER
THAN HIS FAILURE TO TENDER THE PERIODIC DUES AND THE INITIATION FEES
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP
...  ." 


"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)." 

FN2  SEE HUNKIN-CONKEY CONSTR.  CO., 95 N.L.R.B. 433, 435. 

FN3  FENTON, UNION HIRING HALLS UNDER THE TAFT-HARTLEY ACT, 9 LAB. 
L. JOUR.  505, 506 (1958). 

FN4  CF. ID., AT 507.  FOR EXPRESSION OF SUCH VIEW SEE S. REP. NO.
1827, 81ST CONG., 2D SESS., PP. 4-8; GOLDBERG, THE MARITIME STORY
(1958), PP. 277-282. 

FN5  FENTON, OP. CIT., SUPRA, NOTE 3, AT 507. 

FN6  ID., AT 507. 

FN7  THOSE PROVISOS READ: 

"PROVIDED, THAT NOTHING IN THIS ACT, OR IN ANY OTHER STATUTE OF THE
UNITED STATES, SHALL PRECLUDE AN EMPLOYER FROM MAKING AN AGREEMENT WITH
A LABOR ORGANIZATION (NOT ESTABLISHED, MAINTAINED, OR ASSISTED BY ANY
ACTION DEFINED IN SECTION 8(A) OF THIS ACT AS AN UNFAIR LABOR PRACTICE)
TO REQUIRE AS A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN ON OR AFTER
THE THIRTIETH DAY FOLLOWING THE BEGINNING OF SUCH EMPLOYMENT OR THE
EFFECTIVE DATE OF SUCH AGREEMENT, WHICHEVER IS THE LATER, (I) IF SUCH
LABOR ORGANIZATION IS THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED
IN SECTION 9(A), IN THE APPROPRIATE COLLECTIVE-BARGAINING UNIT COVERED
BY SUCH AGREEMENT WHEN MADE; AND (II) UNLESS FOLLOWING AN ELECTION HELD
AS PROVIDED IN SECTION 9(E) WITHIN ONE YEAR PRECEDING THE EFFECTIVE
DATE OF SUCH AGREEMENT, THE BOARD SHALL HAVE CERTIFIED THAT AT LEAST A
MAJORITY OF THE EMPLOYEES ELIGIBLE TO VOTE IN SUCH ELECTION HAVE VOTED
TO RESCIND THE AUTHORITY OF SUCH LABOR ORGANIZATION TO MAKE SUCH AN
AGREEMENT:  PROVIDED FURTHER, THAT NO EMPLOYER SHALL JUSTIFY ANY
DISCRIMINATION AGAINST AN EMPLOYEE FOR NONMEMBERSHIP IN A LABOR
ORGANIZATION (A) IF HE HAS REASONABLE GROUNDS FOR BELIEVING THAT SUCH
MEMBERSHIP WAS NOT AVAILABLE TO THE EMPLOYEE ON THE SAME TERMS AND
CONDITIONS GENERALLY APPLICABLE TO OTHER MEMBERS, OR (B) IF HE HAS
REASONABLE GROUNDS FOR BELIEVING THAT MEMBERSHIP WAS DENIED OR
TERMINATED FOR REASONS OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER
THE PERIODIC DUES AND THE INITIATION FEES UNIFORMLY REQUIRED AS A
CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP  ... ." 

FN8  SEE SECS. 7 AND 8, SUPRA, NOTE 1. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

I JOIN THE COURT'S OPINION UPON CONSIDERATIONS WHICH, THOUGH
DOUBTLESS IMPLICIT IN WHAT MY BROTHER DOUGLAS HAS WRITTEN, IN MY VIEW
DESERVE EXPLICIT ARTICULATION. 

THE BOARD'S CONDEMNATION OF THESE UNION "HIRING HALL" PROCEDURES AS
VIOLATIVE OF SECS. 8(A)(1), 8(A)(3), 8(B)(1), AND 8(B)(2) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE TAFT-HARTLEY ACT, (FN1)
ULTIMATELY RESTS ON A NOW WELL-ESTABLISHED LINE OF CIRCUIT COURT CASES
TO THE EFFECT THAT A CLAUSE IN A COLLECTIVE BARGAINING AGREEMENT MAY,
WITHOUT MORE, CONSTITUTE FORBIDDEN DISCRIMINATION.  SEE, E.G., RED STAR
EXPRESS LINES V. LABOR BOARD, 196 F.2D 78.  WHILE SEEMING TO RECOGNIZE
THE VALIDITY OF THE PROPOSITION THAT CONTRACT TERMS WHICH ARE EQUIVOCAL
ON THEIR FACE SHOULD ORDINARILY AWAIT AN INDEPENDENT EVALUATION OF
THEIR ACTUAL MEANING AND EFFECT (FN2) BEFORE BEING DEEMED TO GIVE RISE
TO AN UNFAIR LABOR PRACTICE, SUCH CASES HAVE JUSTIFIED SHORT-CIRCUITING
THAT COURSE UPON THESE CONSIDERATIONS:  THE MERE EXISTENCE OF A CLAUSE
THAT ON ITS FACE APPEARS TO DECLARE PREFERENTIAL RIGHTS FOR UNION
MEMBERS ENCOURAGES UNION MEMBERSHIP AMONG EMPLOYEES OR JOB APPLICANTS,
PERSONS NOT PRIVY TO THE UNDISCLOSED INTENT OF THE PARTIES, YET
AFFECTED BY THE APPARENT MEANING OF THE CONTRACT.  HENCE THE MERE
POSSIBILITY THAT SUCH A CLAUSE MAY ACTUALLY TURN OUT NOT TO HAVE BEEN
ADMINISTERED BY THE PARTIES SO AS TO FAVOR UNION MEMBERS IS NOT ENOUGH
TO SAVE IT FROM CONDEMNATION AS AN UNLAWFUL DISCRIMINATION. 

I THINK THIS RATIONALE MAY HAVE VALIDITY UNDER CERTAIN CIRCUMSTANCES,
BUT THAT IT DOES NOT CARRY THE DAY FOR THE BOARD IN THESE CASES.  THE
BOARD RECOGNIZES, AS IT MUST, THAT SOMETHING MORE THAN SIMPLY ACTUAL
ENCOURAGEMENT OR DISCOURAGEMENT OF UNION MEMBERS MUST BE SHOWN TO MAKE
OUT AN UNFAIR LABOR PRACTICE, WHETHER THE ACTION INVOLVED BE THAT OF
AGREEING TO A CONTRACT TERM OR DISCHARGING AN EMPLOYEE OR ANYTHING
ELSE.  IN THIS REGARD, IT CONTENDS THAT THE ACTION OF AGREEING TO THE
UNION "HIRING" CLAUSE SHOULD BE TREATED LIKE ANY OTHER EMPLOYER OR
UNION ACTION AND THAT, ON THIS PREMISE, ALL THAT THE BOARD MUST SHOW IN
THE LIGHT OF RADIO OFFICERS' UNION V. LABOR BOARD, 347 U.S. 17, IS THAT
THE TENDENCY TO ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP WAS
FORESEEABLE TO THE EMPLOYER OR UNION.  SINCE ONE IS PRESUMED TO INTEND
THE FORESEEABLE CONSEQUENCES OF HIS ACTS, AND SINCE ACTING IN ORDER TO
ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP IS FORBIDDEN, THE BOARD'S CASE
IS SAID TO BE MADE BY A SIMPLE SHOWING THAT SUCH ENCOURAGEMENT OR
DISCOURAGEMENT IS THE FORESEEABLE RESULT OF EMPLOYER OR UNION ACTION. 
THE BOARD THEN CONCLUDES WITH A SHOWING THAT ENCOURAGEMENT OF UNION
MEMBERSHIP IS A FORESEEABLE CONSEQUENCE OF THE ACTS OF AGREEING TO OR
OPERATING A UNION-RUN HIRING HALL. 

THOUGH, AS WILL APPEAR (INFRA, P. 681), I BELIEVE THE BOARD
ERRONEOUSLY CONSTRUED THIS COURT'S DECISION IN RADIO OFFICERS, I DO NOT
THINK WE CAN REVERSE ITS FINDING OF "ENCOURAGEMENT."  WHILE I AGREE
WITH THE OPINION OF THE COURT THAT THE BOARD COULD NOT INFER FROM THE
MERE EXISTENCE OF THE "HIRING HALL" CLAUSE AN INTENT ON THE PART OF
EMPLOYER OR UNION TO DISCRIMINATE IN FAVOR OF UNION STATUS, I THINK IT
WAS WITHIN THE REALM OF BOARD EXPERTNESS TO SAY THAT THE NATURAL AND
FORESEEABLE EFFECT OF THIS CLAUSE IS TO MAKE EMPLOYEES AND JOB
APPLICANTS THINK THAT UNION STATUS WILL BE FAVORED.  FOR IT IS SURELY
SCARCELY LESS THAN A FACT OF LIFE THAT A CERTAIN NUMBER OF JOB
APPLICANTS WILL BELIEVE THAT JOINING THE UNION WOULD INCREASE THEIR
CHANCES OF HIRE WHEN THE UNION IS EXERCISING THE HIRING FUNCTION. 

WHAT IN MY VIEW IS WRONG WITH THE BOARD'S POSITION IN THESE CASES IS
THAT A MERE SHOWING OF FORESEEABLE ENCOURAGEMENT OF UNION STATUS IS NOT
A SUFFICIENT BASIS FOR A FINDING OF VIOLATION OF THE STATUTE.  IT HAS
LONG BEEN RECOGNIZED THAT AN EMPLOYER CAN MAKE REASONABLE BUSINESS
DECISIONS, UNMOTIVATED BY AN INTENT TO DISCOURAGE UNION MEMBERSHIP OR
PROTECTED CONCERTED ACTIVITIES, ALTHOUGH THE FORESEEABLE EFFECT OF
THESE DECISIONS MAY BE TO DISCOURAGE WHAT THE ACT PROTECTS.  FOR
EXAMPLE, AN EMPLOYER MAY DISCHARGE AN EMPLOYEE BECAUSE HE IS NOT
PERFORMING HIS WORK ADEQUATELY, WHETHER OR NOT THE EMPLOYEE HAPPENS TO
BE A UNION ORGANIZER.  SEE LABOR BOARD V. UNIVERSAL CAMERA CORP., 190
F.2D 429.  YET A COURT COULD HARDLY REVERSE A BOARD FINDING THAT SUCH
FIRING WOULD FORESEEABLY TEND TO DISCOURAGE UNION ACTIVITY.  AGAIN, AN
EMPLOYER CAN PROPERLY MAKE THE EXISTENCE OR AMOUNT OF A YEAR-END BONUS
DEPEND UPON THE PRODUCTIVITY OF A UNIT OF THE PLANT, ALTHOUGH THIS WILL
FORESEEABLY TEND TO DISCOURAGE THE PROTECTED ACTIVITY OF STRIKING. 
PITTSBURGH-DES MOINES STEEL CO. V. LABOR BOARD, 284 F.2D 74.  A UNION,
TOO, IS PRIVILEGED TO MAKE DECISIONS WHICH ARE REASONABLY CALCULATED TO
FURTHER THE WELFARE OF ALL THE EMPLOYEES IT REPRESENTS, NONUNION AS
WELL AS UNION, EVEN THOUGH A FORESEEABLE RESULT OF THE DECISION MAY BE
TO ENCOURAGE UNION MEMBERSHIP. 

THIS COURT'S INTERPRETATION OF THE RELEVANT STATUTORY PROVISIONS HAS
RECOGNIZED THAT CONGRESS DID NOT MEAN TO LIMIT THE RANGE OF EITHER
EMPLOYER OR UNION DECISION TO THOSE POSSIBLE ACTIONS WHICH HAD NO
FORESEEABLE TENDENCY TO ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP OR
CONCERTED ACTIVITIES.  IN GENERAL, THIS COURT HAS ASSUMED THAT A
FINDING OF A VIOLATION OF SEC. 8(A)(3) OR SEC. 8(B)(2) REQUIRES AN
AFFIRMATIVE SHOWING OF A MOTIVATION OF ENCOURAGING OR DISCOURAGING
UNION STATUS OR ACTIVITY.  SEE, E.G., LABOR BOARD V. JONES & LAUGHLIN
CO., 301 U.S. 1, 45-46; UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S.
474.  THERE HAVE, TO BE SURE, BEEN EXCEPTIONS TO THIS REQUIREMENT, BUT
THEY HAVE BEEN NARROW ONES, USUALLY ANALOGOUS TO THE EXCEPTIONS MADE TO
THE REQUIREMENTS FOR A SHOWING OF DISCRIMINATION IN OTHER CONTEXTS. 
FOR EXAMPLE, IN REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793,
THE COURT AFFIRMED A BOARD DECISION THAT A COMPANY "NO SOLICITATION"
RULE WAS OVERBROADLY APPLIED TO PREVENT SOLICITATION OF UNION
MEMBERSHIP ON COMPANY PROPERTY DURING PERIODS WHEN EMPLOYEES WERE
OTHERWISE FREE TO DO AS THEY PLEASED.  A FINDING OF A MOTIVATION TO
DISCOURAGE UNION MEMBERSHIP WAS THERE HELD UNNECESSARY BECAUSE THERE
WAS NO EMPLOYER SHOWING OF A NONDISCRIMINATORY PURPOSE FOR APPLYING THE
RULE TO UNION SOLICITATION DURING THE EMPLOYEES' FREE TIME.  A SIMILAR
ABSENCE OF A SIGNIFICANT BUSINESS JUSTIFICATION FOR THE EMPLOYER'S ACTS
WHICH TENDED TO DISCOURAGE UNION ACTIVITY EXPLAINS THE DISPENSABILITY
OF PROOF OF DISCRIMINATORY MOTIVATION IN ALLIS-CHALMERS MFG. CO. V.
LABOR BOARD, 162 F.2D 435, CUSANO V. LABOR BOARD, 190 F.2D 898, AND
LABOR BOARD V. INDUSTRIAL COTTON MILLS, 208 F.2D 87. 

ANOTHER FIELD OF EXCEPTIONS TO THE REQUIREMENT OF A SHOWING OF A
PURPOSE TO ENCOURAGE OR DISCOURAGE UNION ACTIVITY IS FOUND IN THE
COURT'S AFFIRMANCE OF THE SECOND CIRCUIT IN GAYNOR NEWS CO., INC., V.
LABOR BOARD, 347 U.S. 17, A COMPANION CASE TO RADIO OFFICERS:  IF A
UNION OR EMPLOYER IS TO BE PERMITTED TO TAKE ACTION WHICH SUBSTANTIALLY
- THOUGH UNINTENTIONALLY - ENCOURAGES OR DISCOURAGES UNION ACTIVITY,
THE UNION OR EMPLOYER ENDS SERVED BY THE ACTION MUST NOT ONLY BE OF
SOME SIGNIFICANCE, BUT THEY MUST ALSO BE LEGITIMATE, OR AT LEAST NOT
OTHERWISE FORBIDDEN BY THE NATIONAL LABOR RELATIONS ACT.  IN GAYNOR AN
EMPLOYER WHO, PURSUANT TO A NONDISCRIMINATORY BUSINESS END OF PAYING
THE LEAST WAGES POSSIBLE, AGREED WITH THE UNION WHICH WAS THE STATUTORY
REPRESENTATIVE OF THE EMPLOYEES TO GIVE CERTAIN BENEFITS ONLY TO UNION
MEMBERS, WAS PREVENTED FROM ASSERTING THE JUSTIFYING BUSINESS REASONS
FOR THUS ENCOURAGING UNION MEMBERSHIP BECAUSE OF HIS COMPLICITY IN THE
UNION'S BREACH OF ITS DUTIES AS AGENT FOR ALL THE EMPLOYEES.  INDEED,
THE FACT THAT A NONDISCRIMINATORY BUSINESS PURPOSE FORBIDDEN BY THE ACT
CANNOT BE USED BY AN EMPLOYER TO JUSTIFY AN ACTION WHICH INCIDENTALLY
ENCOURAGES UNION MEMBERSHIP, SEEMS TO ME TO BE THE TRUE BASIS OF THE
COURT'S HOLDING IN RADIO OFFICERS THAT AN EMPLOYER VIOLATES SEC.
8(A)(3) WHEN A UNION FORCES HIM TO TAKE ACTIONS IN ORDER TO ENCOURAGE
UNION MEMBERSHIP.  THE EMPLOYER'S NONDISCRIMINATORY REASON FOR
ENCOURAGING UNION MEMBERSHIP - TO AVOID THE ECONOMIC PRESSURE THE UNION
COULD IMPOSE UPON HIM - WAS SURELY NO LONGER INTENDED TO BE A
JUSTIFICATION FOR SUCH EMPLOYER ACTION AFTER THE PASSAGE OF SEC.
8(B)(2), A STATUTORY PROVISION THE VERY WORDING OF WHICH PRESUPPOSED
THAT UNION COERCION CAN CAUSE A VIOLATION OF SEC. 8(A)(3). 

THERE IS NO REASON TO DECIDE NOW WHETHER THERE ARE OTHER CONTEXTS IN
WHICH A SHOWING OF AN ACTUAL MOTIVATION OF ENCOURAGING OR DISCOURAGING
UNION ACTIVITY MIGHT BE UNNECESSARY TO A FINDING OF A UNION OR EMPLOYER
UNFAIR LABOR PRACTICE.  FOR PRESENT PURPOSES, IT IS SUFFICIENT TO NOTE
THAT WHAT IS INVOLVED IN THE GENERAL REQUIREMENT OF FINDING OF
FORBIDDEN MOTIVATION, AS WELL AS IN THE LIMITED SCOPE OF THE HERETOFORE
RECOGNIZED EXCEPTIONS TO THIS GENERAL REQUIREMENT, IS A REALIZATION
THAT THE ACT WAS NOT INTENDED TO INTERFERE SIGNIFICANTLY WITH THOSE
ACTIVITIES OF EMPLOYER AND UNION WHICH ARE JUSTIFIED BY
NONDISCRIMINATORY BUSINESS PURPOSES, OR BY NONDISCRIMINATORY ATTEMPTS
TO BENEFIT ALL THE REPRESENTED EMPLOYEES.  IT IS AGAINST THIS POLICY
THAT WE SHOULD MEASURE THE BOARD'S ACTION IN FINDING FORBIDDEN THE
INCORPORATION IN COLLECTIVE BARGAINING CONTRACTS OF THE "HIRING HALL"
CLAUSE.  WE MUST DETERMINE WHETHER THE BOARD'S ACTION IS CONSISTENT
WITH THE BALANCE STRUCK BY THE WAGNER AND TAFT-HARTLEY ACTS BETWEEN
PROTECTION OF EMPLOYEE FREEDOM WITH RESPECT TO UNION ACTIVITY AND THE
PRIVILEGE OF EMPLOYER AND UNION TO MAKE SUCH NONDISCRIMINATORY
DECISIONS AS SEEM TO THEM TO SATISFY BEST THE NEEDS OF THE BUSINESS AND
THE EMPLOYEES.    THE LEGISLATIVE BACKGROUND TO SEC. 8(A)(3) OF THE ACT
IS QUITE CLEAR IN ITS INDICATIONS OF WHERE THIS BALANCE WAS TO BE
STRUCK.  THE SENATE REPORT ON THIS SECTION OF THE ORIGINAL WAGNER ACT
STATES:

"THE FOURTH UNFAIR LABOR PRACTICE (THEN SEC. 8(3)) IS A COROLLARY OF
THE FIRST UNFAIR LABOR PRACTICE.  AN EMPLOYER, OF COURSE, NEED NOT HIRE
AN INCOMPETENT MAN AND IS FREE TO DISCHARGE AN EMPLOYEE WHO LACKS SKILL
OR ABILITY.  BUT IF THE RIGHT TO JOIN OR NOT TO JOIN A LABOR
ORGANIZATION IS TO HAVE ANY REAL MEANING FOR AN EMPLOYEE, THE EMPLOYER
OUGHT NOT TO BE FREE TO DISCHARGE AN EMPLOYEE MERELY BECAUSE HE JOINS
AN ORGANIZATION OR TO REFUSE TO HIRE HIM MERELY BECAUSE OF HIS
MEMBERSHIP IN AN ORGANIZATION.  NOR SHOULD AN EMPLOYER BE FREE TO PAY A
MAN A HIGHER OR LOWER WAGE SOLELY BECAUSE OF HIS MEMBERSHIP OR
NONMEMBERSHIP IN A LABOR ORGANIZATION.  THE LANGUAGE OF THE BILL
CREATES SAFEGUARDS AGAINST THESE POSSIBLE DANGERS."  S. REP. NO. 1184
ON S. 2926, 73D CONG., 2D SESS. 6. 

AND SIMILARLY: 

"OF COURSE NOTHING IN THE BILL PREVENTS AN EMPLOYER FROM DISCHARGING
A MAN FOR INCOMPETENCE; FROM ADVANCING HIM FOR SPECIAL APTITUDE; OR
FROM DEMOTING HIM FOR FAILURE TO PERFORM.  BUT IF THE RIGHT TO BE FREE
FROM EMPLOYER INTERFERENCE IN SELF ORGANIZATION OR TO JOIN OR REFRAIN
FROM JOINING A LABOR ORGANIZATION IS TO HAVE ANY PRACTICAL MEANING, IT
MUST BE ACCOMPANIED BY ASSURANCE THAT ITS EXERCISE WILL NOT RESULT IN
DISCRIMINATORY TREATMENT OR LOSS OF THE OPPORTUNITY FOR WORK."  S. REP.
NO. 573 ON S. 1958, 74TH CONG., 1ST SESS. 11. 

TO THE SAME EFFECT WAS THE VIEW OF SENATOR WALSH: 

"  ...  THE EMPLOYER HAS THE ECONOMIC POWER; HE CAN DISCHARGE ANY
EMPLOYEE OR ANY GROUP OF EMPLOYEES WHEN THEIR ONLY OFFENSE MAY BE TO
SEEK TO FORM A LEGITIMATE ORGANIZATION AMONG THE WORKERS FOR THE
PURPOSE OF COLLECTIVE BARGAINING.  THIS BILL DECLARES THAT IS WRONG. 
IT DECLARES THAT THE EMPLOYEE HAS THE RIGHT TO ENGAGE IN COLLECTIVE
BARGAINING, AND IT SAYS, 'MR.  EMPLOYER, YOU MUST KEEP YOUR HANDS OFF;
YOU SHALL NOT USE THAT EFFECTIVE POWER OF DISMISSAL FROM EMPLOYMENT
WHICH YOU HAVE AND DESTROY THE ORGANIZATION OF THE EMPLOYEES BY THE
DISMISSAL OF ONE OR MORE OF YOUR EMPLOYEES WHEN THEY ARE OBJECTIONABLE
ON NO OTHER GROUND THAN THAT THEY BELONG TO OR HAVE ORGANIZED A LABOR
UNION.'"  STATEMENT OF SENATOR WALSH, 79 CONG. REC. 7658. 

AND FURTHER, THE HOUSE REPORT ON THE BILL STATED: 

"NOTHING IN THIS SUBSECTION PROHIBITS INTERFERENCE WITH THE NORMAL
EXERCISE OF THE RIGHT OF EMPLOYERS TO SELECT THEIR EMPLOYEES OR TO
DISCHARGE THEM.  ALL THAT IS INTENDED IS THAT THE EMPLOYER SHALL NOT BY
DISCRIMINATORY TREATMENT IN HIRE OR TENURE OF EMPLOYMENT OR TERMS OR
CONDITIONS OF EMPLOYMENT, INTERFERE WITH THE EXERCISE BY EMPLOYEES OF
THEIR RIGHT TO ORGANIZE AND CHOOSE REPRESENTATIVES.  IT IS FOR THIS
REASON THAT THE EMPLOYER IS PROHIBITED FROM ENCOURAGING OR DISCOURAGING
MEMBERSHIP IN ANY LABOR ORGANIZATION BY SUCH DISCRIMINATION."  H.R.
REP. NO. 1147 ON S. 1958, 74TH CONG., 1ST SESS. 19. 

CONSIDERED IN THIS LIGHT, I DO NOT THINK WE CAN SUSTAIN THE BOARD'S
HOLDING THAT THE "HIRING HALL" CLAUSE IS FORBIDDEN BY THE TAFT-HARTLEY
ACT.  THE BOARD HAS NOT FOUND THAT THIS CLAUSE WAS WITHOUT SUBSTANTIAL
JUSTIFICATION IN TERMS OF LEGITIMATE EMPLOYER OR UNION PURPOSES.  CF.
REPUBLIC AVIATION V. LABOR BOARD, SUPRA; GAYNOR NEWS CO. INC., V. LABOR
BOARD, SUPRA.  WHETHER OR NOT SUCH A FINDING WOULD HAVE BEEN SUPPORTED
BY THE RECORD IS NOT FOR US NOW TO DECIDE.  THE BOARD HAS NOT, IN MY
VIEW, MADE THE TYPE OF SHOWING OF AN ACTUAL MOTIVE OF ENCOURAGING UNION
MEMBERSHIP THAT IS REQUIRED BY UNIVERSAL CAMERA V. LABOR BOARD, SUPRA.
ALL IT HAS SHOWN IS THAT THE CLAUSE WILL TEND TO ENCOURAGE UNION
MEMBERSHIP, AND THAT WITHOUT SUBSTANTIAL DIFFICULTY THE PARTIES TO THE
AGREEMENT COULD HAVE TAKEN ADDITIONAL STEPS TO ISOLATE THE VALID
EMPLOYER OR UNION PURPOSES FROM THE DISCRIMINATORY EFFECTS OF THE
CLAUSE.  (FN3)  I DO NOT THINK THAT THESE TWO ELEMENTS ALONE CAN
JUSTIFY A BOARD HOLDING OF AN UNFAIR LABOR PRACTICE UNLESS WE ARE TO
APPROVE A BROAD EXPANSION OF THE POWER OF THE BOARD TO SUPERVISE
NONDISCRIMINATORY DECISIONS MADE BY EMPLOYER OR UNION.  WHETHER OR NOT
SUCH AN EXPANSION WOULD BE DESIRABLE, IT DOES NOT SEEM TO ME CONSISTENT
WITH THE BALANCE THE LABOR ACTS HAVE STRUCK BETWEEN FREEDOM OF CHOICE
OF MANAGEMENT AND UNION ENDS BY THE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT AND THE FREEDOM OF EMPLOYEES FROM RESTRAINT OR COERCION IN
THEIR EXERCISE OF RIGHTS GRANTED BY SEC. 7 OF THE ACT.  (FN4) 

I THEREFORE AGREE WITH THE COURT THAT THE BOARD'S HOLDING THAT THE
CLAUSE IN QUESTION IS INVALID CANNOT BE SUSTAINED. 

FN1  SET FORTH IN NOTE 1 OF THE COURT'S OPINION, ANTE, PP. 669-670. 

FN2  AS DETERMINED, FOR EXAMPLE, FROM THE PARTIES' ACTIONS UNDER
THEM, THROUGH GRIEVANCE PROCEDURES, OR BY ARBITRATION, IF SO PROVIDED
IN THE COLLECTIVE BARGAINING AGREEMENT. 

FN3  IN CONNECTION WITH SUCH CLAUSES, THE BOARD WOULD HAVE "THE
PARTIES TO THE AGREEMENT POST IN PLACES WHERE NOTICES TO EMPLOYEES AND
APPLICANTS FOR EMPLOYMENT ARE CUSTOMARILY POSTED, ALL PROVISIONS
RELATING TO THE FUNCTIONING OF THE HIRING ARRANGEMENT, INCLUDING THE
SAFEGUARDS THAT WE DEEM ESSENTIAL TO THE LEGALITY OF AN EXCLUSIVE
HIRING AGREEMENT."  THESE SAFEGUARDS, WHICH ARE ALSO TO BE MADE
CONTRACT TERMS, PROVIDE THAT: 

"(1)  SELECTION OF APPLICANTS FOR REFERRAL TO JOBS SHALL BE ON A
NONDISCRIMINATORY BASIS AND SHALL NOT BE BASED ON, OR IN ANY WAY
AFFECTED BY, UNION MEMBERSHIP, BYLAWS, RULES, REGULATIONS,
CONSTITUTIONAL PROVISIONS, OR ANY OTHER ASPECT OR OBLIGATION OF UNION
MEMBERSHIP, POLICIES, OR REQUIREMENTS. 

"(2)  THE EMPLOYER RETAINS THE RIGHT TO REJECT ANY JOB APPLICANT
REFERRED BY THE UNION." 

FN4  SET FORTH IN NOTE 1 OF THE COURT'S OPINION, ANTE, PP. 669-670. 

MR. JUSTICE CLARK, DISSENTING IN PART.  (FN1) 

I CANNOT AGREE WITH THE CASUAL TREATMENT THE COURT GIVES TO THE
"CASUAL EMPLOYEE" WHO IS EITHER UNABLE TO GET EMPLOYMENT OR IS FIRED
THEREFROM BECAUSE HE HAS NOT BEEN CLEARED BY A UNION HIRING HALL. 
INASMUCH AS THE RECORD, AND THE IMAGE OF A HIRING HALL WHICH IT
PRESENTS, ARE NEGLECTED BY THE COURT, A SHORT RESUME OF THE FACTS IS
APPROPRIATE. 

LESTER SLATER, THE COMPLAINANT, BECAME A "CASUAL EMPLOYEE" IN THE
TRUCK FREIGHT BUSINESS IN 1953 OR EARLY 1954.  HE APPROACHED AN
EMPLOYER BUT WAS REFERRED TO THE UNION HIRING HALL.  THERE THE
DISPATCHER TOLD HIM TO SEE BARNEY VOLKOFF, AN OFFICIAL OF THE UNION,
WHOSE OFFICE IN THE UNION HEADQUARTERS BUILDING WAS SOME THREE MILES
AWAY.  DESCRIBING HIS VISIT TO VOLKOFF, SLATER STATED THAT "I JUST GIVE
HIM (VOLKOFF) THE MONEY TO SEND BACK EAST TO PAY UP MY DUES BACK THERE
FOR THE WITHDRAWAL CARD,  ...  AND I WENT RIGHT TO THE HIRING HALL AND
WENT TO WORK."  HOWEVER, THIS WAS BUT THE BEGINNING OF SLATER'S TROUBLE
WITH THE HALL.  AFTER SOME DIFFICULTY WITH ONE OF HIS TEMPORARY
EMPLOYERS (PACIFIC INTERMOUNTAIN EXPRESS), THE HALL REFUSED TO REFER
SLATER TO OTHER EMPLOYERS.  IN ORDER TO KEEP EMPLOYED DESPITE THE UNION
HALL'S FAILURE TO DISPATCH HIM, SLATER RELIED ON A LETTER FROM JOHN
ANNAND, AN INTERNATIONAL REPRESENTATIVE OF THE UNION, STATING THAT "YOU
MAY SEEK WORK WHEREVER YOU CAN FIND IT IN THE FREIGHT INDUSTRY WITHOUT
WORKING THROUGH THE HIRING HALL."  IT WAS THIS LETTER THAT OBTAINED
SLATER HIS EMPLOYMENT WITH LOS ANGELES-SEATTLE MOTOR EXPRESS, WHERE HE
WAS CHARACTERIZED BY ITS DOCK FOREMAN AS BEING "A GOOD WORKER."  AFTER
A FEW MONTHS EMPLOYMENT, THE BUSINESS AGENT OF THE UNION (VICTOR
KARATY) CALLED ON THE LOS ANGELES-SEATTLE MOTOR EXPRESS, ADVISING THAT
IT COULD NOT HIRE SLATER "ANY LONGER HERE WITHOUT A REFERRAL CARD";
THAT THE COMPANY WOULD "HAVE TO GET RID OF SLATER, AND IF IT  ...
DIDN'T, THAT HE WAS GOING TO TIE THE PLACE UP IN A KNOT, THAT HE WOULD
PULL THE MEN OFF."  LOS ANGELES-SEATTLE MOTOR EXPRESS FIRED SLATER,
TELLING HIM THAT "WE  ...  CAN'T USE YOU NOW UNTIL YOU GET THIS
STRAIGHTENED OUT WITH THE UNION.  THEN COME BACK; WE WILL PUT YOU TO
WORK."  HE THEN WENT TO THE UNION, AND WAS AGAIN REFERRED TO VOLKOFF
WHO ADVISED, "I CAN'T DO ANYTHING FOR YOU BECAUSE YOU ARE OUT.  YOU ARE
NOT QUALIFIED FOR THIS JOB."  UPON BEING SHOWN THE ANNAND LETTER,
VOLKOFF DECLARED "I AM THE UNION."  ON LATER OCCASIONS WHEN SLATER
ATTEMPTED TO GET CLEARANCE FROM VOLKOFF HE WAS ASKED "HOW COME YOU
WEREN'T OUT ON THAT - DIDN'T GO OUT ON THE PICKET LINE?"  (APPARENTLY
THE UNION HAD BEEN ON A STRIKE.)  SLATER TESTIFIED, "I TOLD HIM NOBODY
ASKED ME TO.  I WAS OUT A WEEK.  I THOUGHT THE STRIKE WAS ON.  THE HALL
WAS CLOSED.  THE GUYS TOLD ME THERE WEREN'T NO WORK."  THE LANDLADY OF
SLATER ALSO APPROACHED VOLKOFF IN AN EFFORT TO GET HIM CLEARED AND SHE
TESTIFIED THAT "I ASKED MR. BARNEY VOLKOFF WHAT HE HAD AGAINST LESTER
SLATER AND WHY HE WAS DOING THIS TO HIM."  AND SHE QUOTED HIM AS
SAYING:  "FOR A FEW REASONS, ONE IS ABOUT THE P.I.E., (PACIFIC
INTERMOUNTAIN EXPRESS)  ...  ANOTHER THING, HE IS AN ILLITERATE."  SHE
FURTHER TESTIFIED THAT "HE (VOLKOFF) DIDN'T LIKE THE WAY HE DRESSED. 
AND HE (VOLKOFF) FUSSED AROUND AND FUSSED AROUND."  HE THEREFORE
REFUSED TO "ROUTE," AS THE COURT CALLS IT, SLATER THROUGH THE UNION
HIRING HALL. 

THE COURT FINDS THAT THE NATIONAL LABOR RELATIONS ACT DOES NOT BAN
HIRING HALLS PER SE AND THAT THEREFORE THEY ARE ILLEGAL ONLY IF THEY
DISCRIMINATE ON THE BASIS OF UNION MEMBERSHIP.  IT HOLDS THAT NO SUCH
ACTUAL DISCRIMINATION WAS SHOWN AND THAT NONE IS INFERABLE FROM THE
FACE OF THE CONTRACT SINCE IT HAS A PROTECTIVE CLAUSE.  COLLATERALLY IT
HOLDS, QUOTING SENATOR TAFT, THAT HIRING HALLS ARE "USEFUL"; THAT THEY
SAVE TIME AND ELIMINATE WASTE AND, FINALLY, THAT THE COURT "CANNOT
ASSUME THAT A UNION CONDUCTS ITS OPERATIONS IN VIOLATION OF LAW." 
(FN2) 

I DO NOT DOUBT FOR A MOMENT THAT MEN HIRED THROUGH SUCH ARRANGEMENTS
ARE SAVED THE EXPENSE AND DELAY OF MAKING THE ROUNDS OF PROSPECTIVE
EMPLOYERS ON THEIR OWN.  NOR DO I DOUBT THEIR UTILITY TO EMPLOYERS WITH
VARYING EMPLOYEE DEMANDS.  AND I ACCEPT THE FACT THAT CONGRESS HAS
OUTLAWED ONLY CLOSED SHOPS AND ALLOWED HIRING HALLS TO REMAIN IN
OPERATION.  BUT JUST AS THOSE OBSERVATIONS ARE NOT, IN THE FINAL
ANALYSIS, RELIED UPON BY THE COURT TODAY IN REACHING ITS DECISION, MY
ACQUIESCENCE IN THEM IS ONLY A PROLOGUE IN MY DISSENT FROM THE
REMAINING CONSIDERATIONS UPON WHICH ITS DECISION ACTUALLY RESTS.  THESE
CONSIDERATIONS ARE DEPENDENT UPON THE CONSTRUCTION GIVEN SEC. 8(A)(3)
AND I THEREFORE FIRST TURN TO THAT SECTION. 

PRACTICE FOR AN EMPLOYER: 

"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  ...  ." 

AS I VIEW THIS PROHIBITION, WHICH BY SEC. 8(B)(2) IS ALSO APPLIED TO
UNIONS WHEN CAUSING OR ATTEMPTING TO CAUSE ANY EMPLOYER TO VIOLATE THIS
PRACTICE:  (1) DISCRIMINATION IN THE HIRING OR TENURE OF EMPLOYEES
WHICH IS INTENDED TO, OR INHERENTLY TENDS TO, RESULT IN (2)
ENCOURAGEMENT OR DISCOURAGEMENT OF MEMBERSHIP IN A UNION. 

THE WORD "DISCRIMINATION" IN THE SECTION, AS THE BOARD POINTS OUT AND
I AGREE, INCLUDES NOT ONLY DISTINCTIONS CONTINGENT UPON "THE PRESENCE
OR ABSENCE OF UNION MEMBERSHIP," ANTE, P. 675, BUT ALL DIFFERENCES IN
TREATMENT REGARDLESS OF THEIR BASIS.  THIS IS THE "CAUSE" PORTION OF
THE SECTION.  BUT SEC. 8(A)(3) ALSO INCLUDES AN "EFFECT" CLAUSE WHICH
PROVIDES THAT THE INTENDED OR INHERENT EFFECT OF THE DISCRIMINATION
MUST BE "TO ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP."  THE SECTION
HAS, THEREFORE, A DIVIDED STRUCTURE.  NOT ALL DISCRIMINATIONS VIOLATE
THE SECTION, BUT ONLY THOSE THE EFFECT OF WHICH IS ENCOURAGEMENT OR
DISCOURAGEMENT OF UNION MEMBERSHIP.  CF. RADIO OFFICERS V. LABOR BOARD,
347 U.S. 17, AT 43:  "NOR DOES THIS SECTION OUTLAW DISCRIMINATION IN
EMPLOYMENT AS SUCH; ONLY SUCH DISCRIMINATION AS ENCOURAGES OR
DISCOURAGES MEMBERSHIP IN A LABOR ORGANIZATION IS PROSCRIBED."  EACH
BEING A REQUIREMENT OF THE SECTION, BOTH MUST BE PRESENT BEFORE AN
UNFAIR LABOR PRACTICE EXISTS.  ON THE OTHER HAND, THE UNION HERE
CONTENDS, AND THE COURT AGREES, THAT THERE CAN BE NO "DISCRIMINATION"
WITHIN THE SECTION UNLESS IT IS BASED ON UNION MEMBERSHIP, I.E.,
MEMBERS TREATED ONE WAY, NONMEMBERS ANOTHER, WITH FURTHER DISTINCTIONS,
AMONG MEMBERS, BASED ON GOOD STANDING.  THROUGH THIS TOO SUPERFICIAL
INTERPRETATION, THE COURT ABUSES THE LANGUAGE OF THE CONGRESS AND
UNDULY RESTRICTS THE SCOPE OF THE PROSCRIPTION SO THAT IT FORBIDS ONLY
THE MOST OBVIOUS "HARD-SELL" TECNHIQUES OF INFLUENCING EMPLOYEE
EXERCISE OF SEC.  7 RIGHTS. 

EVEN IF WE COULD DRAW NO SUPPORT FROM PRIOR CASES, THE PLAIN AND
ACCEPTED MEANING OF THE WORD "DISCRIMINATION" SUPPORTS MY
INTERPRETATION.  IN COMMON PARLANCE, THE WORD MEANS TO DISTINGUISH OR
DIFFERENTIATE.  WITHOUT GOOD REASON, WE SHOULD NOT LIMIT THE WORD TO
MEAN TO DISTINGUISH IN A PARTICULAR MANNER (I.E., ON THE BASIS OF UNION
MEMBERSHIP OR ACTIVITY) SO THAT A FINDING THAT THE HALL DISPATCHED
EMPLOYEES WITHOUT REGARD TO UNION MEMBERSHIP OR ACTIVITY BARS A FINDING
OF VIOLATION.  THE MERE FACT THAT THE SECTION MIGHT BE READ IN THE
MANNER SUGGESTED BY THE UNION DOES NOT LICENSE SUCH A DISTORTION OF THE
CLEAR INTENT OF THE CONGRESS, I.E., TO PROHIBIT ALL AUXILIARIES TO THE
CLOSED SHOP, AND ALL PRESSURES ON EMPLOYEE FREE CHOICE, HOWEVER SUBTLY
THEY ARE ESTABLISHED OR APPLIED.  MOREOVER, OUR INTERPRETATION IN RADIO
OFFICERS V. LABOR BOARD, SUPRA, SUPPORTS THIS POSITION.  THERE WE
SAID:    "THE UNFAIR LABOR PRACTICE IS FOR AN EMPLOYER (1) TO ENCOURAGE
OR DISCOURAGE MEMBERSHIP (2) BY MEANS OF DISCRIMINATION.  THUS THIS
MEMBERSHIP IN LABOR ORGANIZATIONS; ONLY SUCH AS IS ACCOMPLISHED BY
DISCRIMINATION IS PROHIBITED.  NOR DOES THIS SECTION OUTLAW
DISCRIMINATION IN EMPLOYMENT AS SUCH; ONLY (1) SUCH DISCRIMINATION (2)
AS ENCOURAGES OR DISCOURAGES MEMBERSHIP IN A LABOR ORGANIZATION IS
PROSCRIBED."  AT PP. 42-43. 

THE COURT'S CONCLUSION IS IN PATENT CONFLICT WITH THAT REASONING. 

GIVEN THAT INTERPRETATION OF THE WORD "DISCRIMINATION," IT BECOMES
NECESSARY TO DETERMINE THE CLASS OF EMPLOYEE INVOLVED, AND THEN WHETHER
ANY DIFFERENCES IN TREATMENT WITHIN THAT CLASS ARE PRESENT.  THE BOARD
FOUND THE CLASS AFFECTED BY THE UNION HIRING HALL TO BE THAT GROUP
WHICH WAS QUALIFIED, IN THE SENSE OF ABILITY, TO DO THE WORK REQUIRED
BY THE EMPLOYER AND WHO HAD APPLIED FOR WORK THROUGH THE HIRING HALL. 
OBVIOUSLY, NOT ALL OF THOSE WHO APPLY RECEIVE LIKE TREATMENT.  NOT ALL
APPLICANTS RECEIVE REFERRAL CARDS.  CLEARLY, THEN, THE CLASS APPLYING
TO THE HIRING HALL IS ITSELF DIVIDED INTO TWO GROUPS TREATED
DIFFERENTLY - THOSE CLEARED BY THE UNION AND THOSE WHO WERE NOT.  THE
NEXT QUESTION IS WHETHER THE CONTRACT REQUIRING AND ENDORSING THAT
DISCRIMINATION OR DIFFERENTIATION IS DESIGNED TO, OR INHERENTLY TENDS
TO, ENCOURAGE UNION MEMBERSHIP.  IF IT DOES, THEN SEC. 8(A)(3) HAS BEEN
VIOLATED. 

I BEGIN WITH THE PREMISE THAT THE CONGRESS HAS OUTLAWED THE CLOSED
SHOP AND THAT, AS THE COURT POINTED OUT, "THE POLICY OF THE ACT IS TO
INSULATE EMPLOYEES' JOBS FROM THEIR ORGANIZATIONAL RIGHTS," RADIO
OFFICERS, SUPRA, AT 40.  TO TEST THE CONTRACT HERE, I LOOK TO PROBABLE
AND ANTICIPATED "EMPLOYEE RESPONSE" TO IT, ID., AT 46, RECOGNIZING THAT
"ENCOURAGEMENT AND DISCOURAGEMENT ARE 'SUBTLE THINGS' REQUIRING 'A HIGH
DEGREE OF INTROSPECTIVE PERCEPTION.'"  ID., AT P. 51.  JUST AS IN CASES
OF HIS INTERFERENCE WITH PROTECTED ACTIVITIES, THE ESCAPE VALUE OF THE
EMPLOYER'S "TRUE PURPOSE" AND "REAL MOTIVE" IS TO BE TESTED BY THE
"NATURAL CONSEQUENCES" AND "FORESEEABLE RESULT" OF HIS RESORT, HOWEVER
JUSTIFIABLY TAKEN, TO AN INSTITUTION SO CLOSELY ALLIED TO THE CLOSED
SHOP.  I BELIEVE, AS THIS COURT HAS RECOGNIZED, THAT "THE DESIRE OF
EMPLOYEES TO UNIONIZE IS DIRECTLY PROPORTIONAL TO THE ADVANTAGES
THOUGHT TO BE OBTAINED  ...  ."  RADIO OFFICERS, SUPRA, AT 46.  I
THEREFORE ASK, "DOES THE ORDINARY APPLICANT FOR CASUAL EMPLOYMENT, WHO
WALKS INTO THE UNION HALL AT THE DIRECTION OF HIS PROSPECTIVE EMPLOYER,
CONSIDER HIS CHANCES OF GETTING DISPATCHED FOR WORK DIMINISHED BECAUSE
OF HIS NON-UNION STATUS OR HIS DEFAULT IN DUES PAYMENT?"  LESTER SLATER
TESTIFIED - AND IT IS UNCONTRADICTED - THAT "HE (THE APPLICANT) HAD TO
BE A UNION MEMBER; OTHERWISE HE WOULDN'T BE WORKING THERE  ...  YOU GOT
TO HAVE YOUR DUES PAID UP TO DATE AND SO FORTH."  WHEN ASKED HOW HE
KNEW THIS, SLATER REPLIED, "I HAVE ALWAYS KNEW THAT."  SUCH WAS THE SUM
OF HIS IMPRESSIONS GAINED FROM CONTACT WITH THE HALL FROM 1953 OR 1954
WHEN HE STARTED TO 1958 WHEN HE ENDED.  THE MISUNDERSTANDING - IF IT IS
THAT - OF THIS COMMON WORKER, WHO HAD THE COURAGE TO COMPLAIN, IS, I AM
SURE, REPRESENTATIVE OF MANY MORE WHO WERE AFRAID TO PROTEST OR, WORSE,
WERE UNAWARE OF THEIR RIGHT TO DO SO. 

OF THE GRAVITY OF SUCH A SITUATION THE BOARD IS THE BEST ARBITER AND
BEST EQUIPPED TO FIND A SOLUTION.  IT IS, AFTER ALL, "PERMISSIBLE FOR
THE BOARD TO DRAW ON EXPERIENCE IN FACTUAL INQUIRIES."   RADIO
OFFICERS, SUPRA, AT 49.  IT HAS RESOLVED THE ISSUE CLEARLY, NOT ONLY
HERE, BUT ALSO IN ITS 1958 REPORT WHICH, AS I HAVE SAID, REPEATED ITS
MOUNTAIN PACIFIC POSITION "THAT A UNION TO WHICH AN EMPLOYER HAS SO
DELEGATED HIRING POWERS WILL EXERCISE ITS POWER WITH A VIEW TO SECURING
COMPLIANCE WITH MEMBERSHIP OBLIGATIONS AND UNION RULES."  AT P. 68.  IN
VIEW OF SLATER'S EXPERIENCE, FOR ONE, THE IDEA IS CERTAINLY NOT FAR
FETCHED.  DESPITE THE CONTRACT PROVISION AS TO EQUAL TREATMENT BETWEEN
UNION AND NONUNION MEN AFTER A MINIMUM AMOUNT OF SENIORITY IS OBTAINED,
WE FIND HERE THAT SLATER HAD TO "PAY UP" HIS DUES IN 1953.  DESPITE THE
SENIORITY RULE, (FN3) DISPATCH WAS OFTEN MADE, THE RECORD SHOWS, DUE TO
FAVORITISM BY THE EMPLOYER.  DESPITE THE CONTRACT'S SOLEMN WORDS, THE
UNCONTRADICTED EVIDENCE IS THAT LACK OF INTELLECT, TASTE IN DRESS AND
FAILURE TO APPEAR ON A UNION PICKET LINE PREVENTED AN EMPLOYEE FROM
GETTING A JOB, ALTHOUGH HE WAS A "GOOD WORKER."  LIKEWISE, APPROACHING
A UNION OFFICIAL (WHO INDIGNANTLY ASSERTS "I AM THE UNION") WITH A
LETTER FROM A UNION "HIGHER-UP" MAY RESULT IN LOSS OF WORK.  SUCH
FACTORS ARE INFINITELY MORE PERSUASIVE THAN THE SELF-SERVING
DECLARATION OF A UNION HIRING-HALL AGREEMENT. 

HOWEVER, I NEED NOT GO SO FAR AS TO PRESUME THAT THE UNION HAS SET
ITSELF UPON AN ILLEGAL COURSE, CONDITIONING REFERRAL ON THE UNLAWFUL
CRITERION OF UNION MEMBERSHIP IN GOOD STANDING (WHICH INFERENCE THE
MAJORITY TODAY SAYS CANNOT BE DRAWN), TO REACH THE SAME RESULT.  I NEED
ONLY ASSUME THAT, BY THOUSANDS OF COMMON WORKERS LIKE SLATER, THE
CONTRACT AND ITS CONDITIONING OF CASUAL EMPLOYMENT UPON UNION REFERRAL
WILL WORK A MISUNDERSTANDING AS TO THE SIGNIFICANCE OF UNION
AFFILIATION UNLESS THE EMPLOYER'S ABDICATION OF HIS ROLE BE MADE LESS
THAN TOTAL AND SOME NOTE OF THE TRUE FUNCTION OF THE HIRING HALL BE
POSTED WHERE ALL MAY SEE AND READ.  THE TIDE OF ENCOURAGEMENT MAY NOT
BE TURNED, BUT IT WILL IN PART AT LEAST BE STEMMED.  AS AN ADDED
DIVIDEND, THE INHERENT PROBABILITY OF THE FREE-WHEELING OPERATION OF
THE UNION HIRING HALL RESULTING IN ARBITRARY DISPATCHING OF JOB SEEKERS
WOULD TO SOME SIGNIFICANT EXTENT BE DIMINISHED. 

I WOULD HOLD THAT THERE IS NOT ONLY A REASONABLE LIKELIHOOD, BUT THAT
IT MUST INESCAPABLY BE CONCLUDED UNDER THIS RECORD, THAT, WITHOUT THE
SAFEGUARDS AT ISSUE, A CONTRACT CONDITIONING EMPLOYMENT SOLELY UPON
UNION REFERRAL ENCOURAGES MEMBERSHIP IN THE UNION BY THAT VERY
DISTINCTION ITSELF.  AS THE BOARD EXPRESSED IT IN MOUNTAIN PACIFIC
CHAPTER, SUPRA, AT 896: 

"THE VERY GRANT OF WORK AT ALL DEPENDS SOLELY UPON UNION SPONSORSHIP,
AND IT IS REASONABLE TO INFER THAT THE ARRANGEMENT DISPLAYS AND
ENHANCES THE UNION'S POWER AND CONTROL OVER THE EMPLOYMENT STATUS." 

A REASONABLE INTERPRETATION OF THE ACT ALSO DEMANDS THAT BOTH THE
EMPLOYER AND THE UNION BE DEEMED VIOLATORS.  IN DETERMINING THAT ISSUE,
I SAY THAT THE BOARD IS THE BEST JUDGE.  I SAY THAT IT HAS MADE AN
"ALLOWABLE JUDGMENT."  IT IS NOT FOR THE COURTS TO DIFFERENTLY ASSESS
THE HIRING HALL'S "CUMULATIVE EFFECT ON EMPLOYEES" OR JOB APPLICANTS,
LABOR BOARD V. STOWE SPINNING CO., 336 U.S. 226, 231.  ITS FINDINGS
HERE SHOULD, THEREFORE, "CARRY THE AUTHORITY OF AN EXPERTNESS WHICH
COURTS DO NOT POSSESS AND THEREFORE MUST RESPECT."  UNIVERSAL CAMERA
CORP. V. LABOR BOARD, 340 U.S. 474, 488. 

FINALLY, LET ME SAY THAT THE BOARD SHOULD NOT BE HAMSTRUNG IN ITS
EFFORT TO ENFORCE THE MANDATE OF THE CONGRESS THAT THERE SHALL BE NO
CLOSED SHOP.  AS SENATOR TAFT STATED ON THE FLOOR OF THE SENATE:
(FN4) 

"PERHAPS THE CLOSED SHOP IS BEST EXEMPLIFIED BY THE SO-CALLED HIRING
HALLS ON THE WEST COAST, WHERE SHIPOWNERS CANNOT EMPLOY ANYONE UNLESS
THE UNION SENDS HIM TO THEM  ...  .  SUCH AN ARRANGEMENT GIVES THE
UNION TREMENDOUS POWER OVER THE EMPLOYEES; FURTHERMORE, IT ABOLISHES A
FREE LABOR MARKET.  A MAN CANNOT GET A JOB WHERE HE WANTS TO GET IT.
HE HAS TO GO TO THE UNION FIRST; AND IF THE UNION SAYS THAT HE CANNOT
GET IN, THEN HE IS OUT OF THAT PARTICULAR LABOR FIELD." 

THAT IS WHERE LESTER SLATER FINDS HIMSELF TODAY.  I THEREFORE
DISSENT. 

FN1  I AGREE WITH THE COURT'S DISPOSITION OF THAT PART OF THE BOARD'S
PETITION SEEKING DIRECT ENFORCEMENT OF THE ORDER OF REIMBURSEMENT. 

FN2  INTERESTINGLY ENOUGH, THE BOARD IN ITS TWENTY-THIRD ANNUAL
REPORT (1958) CHARACTERIZED ITS HOLDING IN MOUNTAIN PACIFIC CHAPTER,
119 N.L.R.B. 883, IN THE FOLLOWING LANGUAGE:  "IT MAY REASONABLY BE
INFERRED, THE BOARD HELD, THAT A UNION TO WHICH AN EMPLOYER HAS SO
DELEGATED HIRING POWERS WILL EXERCISE ITS POWER WITH A VIEW TO SECURING
COMPLIANCE WITH MEMBERSHIP OBLIGATIONS AND UNION RULES."  AT P. 68. 

FN3  THE EMPLOYERS DID NOT RECEIVE ANY SENIORITY LISTS FROM THE UNION
AND WERE UNAWARE OF WHETHER THIS PROVISION OF THE AGREEMENT WAS BEING
PROPERLY ADMINISTERED. 

FN4  93 CONG. REC. 3836; II LEG.  HIST.  OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, 1010. 

MR. JUSTICE WHITTAKER JOINS IN ALL EXCEPT NOTE 1 OF THIS DISSENT, BUT
WOULD ALSO ADD THE REASONS, RESPECTING THE BOARD'S POWERS TO MAKE THE
ORDER IN QUESTION, THAT ARE STATED IN HIS DISSENT IN NO. 68, CARPENTERS
LOCAL 60 V. LABOR BOARD, DECIDED THIS DAY, ANTE, P. 660. 
..END :










NATIONAL LABOR RELATIONS BOARD V. NEWS SYNDICATE CO., INC. 365 U.S. 695 



NO. 339.  ARGUED MARCH 1, 1961 - DECIDED APRIL 17, 1961 - 279 F.2D 323,
AFFIRMED. 


A COLLECTIVE BARGAINING AGREEMENT REQUIRED EMPLOYERS TO COMPLY WITH
UNION RULES "NOT IN CONFLICT WITH" FEDERAL LAW AND PROVIDED THAT
FOREMEN MUST BE UNION MEMBERS AND DO THE HIRING, BUT THAT THEY SHOULD
BE RESPONSIBLE ONLY TO THE EMPLOYERS.  THE NATIONAL LABOR RELATIONS
BOARD FOUND THAT CERTAIN UNION FOREMEN HAD DISCRIMINATED AGAINST
CERTAIN NONUNION EMPLOYEES, AND IT CONCLUDED THAT THE UNION AND AN
EMPLOYER HAD VIOLATED SEC. 8(B)(1)(A) AND (2) AND SEC.  8(A)(1) AND
(3), RESPECTIVELY, OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, BY
THEIR CONTRACT ARRANGEMENTS AND BY OPERATING AN UNLAWFUL CLOSED SHOP
AND PREFERENTIAL HIRING SYSTEM; AND IT ORDERED, INTER ALIA, THAT
CERTAIN EMPLOYEES BE REIMBURSED FOR DUES AND ASSESSMENTS PAID TO THE
UNION DURING THE PERIOD COVERED BY THE COMPLAINT.  THE COURT OF APPEALS
DENIED ENFORCEMENT OF THE BOARD'S ORDER.  HELD: 

1.  THE BOARD WAS NOT AUTHORIZED UNDER SEC. 10(C) TO REQUIRE
REIMBURSEMENT OF DUES AND ASSESSMENTS PAID TO THE UNION.  CARPENTERS
LOCAL 60 V. LABOR BOARD, ANTE, P. 651.  P. 699. 

2.  THE CONTRACT WAS NOT UNLAWFUL ON ITS FACE, EVEN THOUGH THE
FOREMEN - WHO WERE UNION MEMBERS - WERE REQUIRED TO DO THE HIRING.  PP.
699-700. 

3.  THE REQUIREMENT THAT EMPLOYERS COMPLY WITH UNION RULES "NOT IN
CONFLICT WITH" FEDERAL LAW WAS NOT UNLAWFUL PER SE.  P. 700. 

4.  THE COURT OF APPEALS DID NOT GO BEYOND THE SCOPE OF REVIEW
ENTRUSTED TO IT IN HOLDING THAT THE RECORD DID NOT SUPPORT THE BOARD'S
FINDING THAT, IN PRACTICE, RESPONDENTS MAINTAINED AND ENFORCED CLOSED
SHOP AND PREFERENTIAL HIRING CONDITIONS WHICH VIOLATED THE ACT.  PP.
700-703. 

NATIONAL LABOR RELATIONS BOARD V. NEWS SYNDICATE CO., INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT UNION, AFFILIATED WITH THE INTERNATIONAL TYPOGRAPHICAL
UNION, ENTERED INTO COLLECTIVE BARGAINING AGREEMENTS WITH VARIOUS
PUBLISHERS, INCLUDING RESPONDENT NEWS SYNDICATE (AND DOW JONES & CO.),
WHICH CONTAINED A PROVISION THAT "THE GENERAL LAWS OF THE INTERNATIONAL
TYPOGRAPHICAL UNION ...  NOT IN CONFLICT WITH THIS CONTRACT OR WITH
FEDERAL OR STATE LAW SHALL GOVERN RELATIONS BETWEEN THE PARTIES ON
CONDITIONS NOT SPECIFICALLY ENUMERATED HEREIN."  THE CONTRACT LIMITED
MAIL-ROOM EMPLOYMENT TO "JOURNEYMEN AND APPRENTICES."  THE CONTRACT
ALSO PROVIDED THAT MAIL-ROOM SUPERINTENDENTS, FOREMEN, AND ASSISTANT
FOREMEN MUST BE MEMBERS OF THE UNION AND THAT THE FOREMEN WOULD DO THE
HIRING.  THE GENERAL LAWS OF ITU PROVIDED THAT "FOREMEN OR JOURNEYMEN"
SHOULD BE "ACTIVE MEMBERS" OF THE UNION, THAT ONLY UNION MEMBERS SHOULD
OPERATE, MAINTAIN, AND SERVICE ANY MAILING MACHINERY OR EQUIPMENT, THAT
NO PERSON SHOULD BE ELIGIBLE AS A "LEARNER" WHO IS NOT A UNION MEMBER. 

ANOTHER PROVISION OF THE CONTRACT STATED, HOWEVER, THAT "THE UNION
SHALL NOT DISCIPLINE THE FOREMAN FOR CARRYING OUT THE INSTRUCTIONS OF
THE PUBLISHER OR HIS REPRESENTATIVES IN ACCORDANCE WITH THIS
AGREEMENT."  IT ALSO PROVIDED THAT THE FOREMEN "SHALL BE APPOINTED AND
MAY BE REMOVED BY THE PUBLISHER." 

THE FOREMAN AT ONE PLANT WAS A UNION MEMBER AND THE BOARD FOUND THAT
HE DISCRIMINATED IN FAVOR OF UNION MEN AGAINST A NONUNION EMPLOYEE
NAMED JULIUS ARRIGALE.  IT ALSO FOUND THAT THE FOREMAN AT ANOTHER PLANT
WAS A UNION MEMBER AND DISCRIMINATED IN FAVOR OF UNION MEN AND AGAINST
A NONUNION EMPLOYEE NAMED BURTON RANDALL.  IT CONCLUDED THAT THE UNION
AND THE NEWS SYNDICATE HAD VIOLATED SEC. 8(B)(1)(A) AND (2) AND SEC.
8(A)(1) AND (3) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE
TAFT-HARTLEY ACT, 61 STAT. 136, 140-141, AS AMENDED, 29 U.S.C. SEC.
158, RESPECTIVELY, BY THEIR CONTRACT ARRANGEMENTS AND BY OPERATING AN
UNLAWFUL CLOSED SHOP AND PREFERENTIAL HIRING SYSTEM.  (FN1)  IT HELD
THAT VESTING CONTROL OVER EMPLOYMENT IN UNION FOREMEN WAS A DELEGATION
OF EXCLUSIVE CONTROL OVER HIRING TO THE UNION WITHOUT THE REQUISITE
SAFEGUARDS PRESCRIBED BY THE BOARD IN MOUNTAIN PACIFIC CHAPTER, 119
N.L.R.B. 883.  THE ORDER OF THE BOARD CONTAINED VARIOUS PROVISIONS
INCLUDING A DIRECTION THAT ALL EMPLOYEES IN THE MAIL-ROOMS BE
REIMBURSED FOR DUES AND ASSESSMENTS PAID THE UNION FOR A PERIOD
BEGINNING SIX MONTHS BEFORE THE SERVICE OF THE CHARGES AGAINST IT; AND
THIS DUTY WAS MADE, SO FAR AS CONCERNS THE NEWS MAIL-ROOM, A JOINT AND
SEVERAL LIABILITY OF THE UNION AND NEWS SYNDICATE.  122 N.L.R.B.  818. 

THE BOARD PETITIONED THE COURT OF APPEALS FOR ENFORCEMENT OF THE
ORDER.  THAT COURT HELD THAT THE FINDING OF DISCRIMINATION AGAINST
RANDALL WAS IN PART SUPPORTED BY THE RECORD; AND IT REFUSED ENFORCEMENT
OF THE BOARD'S ORDER, ALLOWING THE BOARD, IF IT WISHED, TO ENTER AN
ORDER DIRECTED ONLY TO THAT INSTANCE OF DISCRIMINATION THE COURT OF
APPEALS FOUND THE RECORD TO SHOW.  279 F.2D 323.  THE CASE IS HERE ON
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED ALONG WITH NO. 340,
INTERNATIONAL TYPOGRAPHICAL UNION V. LABOR BOARD, POST, P. 705, BECAUSE
OF THE CONFLICT BETWEEN THEM.  364 U.S. 877, 878. 

WHAT WE HAVE THIS DAY DECIDED IN CARPENTERS LOCAL 60 V. LABOR BOARD,
ANTE, P. 651, IS DISPOSITIVE OF THE PROVISION IN THE BOARD'S ORDER
REQUIRING RESPONDENTS TO REIMBURSE UNION MEMBERS FOR DUES AND
ASSESSMENTS. 

WE ALSO BELIEVE THE COURT OF APPEALS WAS RIGHT IN CONCLUDING THAT THE
CONTRACT ON ITS FACE IS NOT UNLAWFUL EVEN THOUGH THE FOREMEN - WHO ARE
UNION MEMBERS - DO THE HIRING.  IN THE FIRST PLACE, THE CONTRACT
(UNLIKE THE GENERAL LAWS) DOES NOT REQUIRE JOURNEYMEN AND APPRENTICES
TO BE UNION MEMBERS.  IN THE SECOND PLACE, THE PROVISIONS OF THE
CONTRACT WHICH WE HAVE SET FORTH MAKE THE FOREMEN "SOLELY THE
EMPLOYERS' AGENTS," AS THE COURT OF APPEALS CONCLUDED.  (FN2) 279 F.2D,
AT 330.  FINALLY, AS WE SAID IN TEAMSTERS LOCAL 357 V. LABOR BOARD,
DECIDED THIS DAY, ANTE, P. 667, WE WILL NOT ASSUME THAT UNIONS AND
EMPLOYERS WILL VIOLATE THE FEDERAL LAW, FAVORING DISCRIMINATION IN
FAVOR OF UNION MEMBERS AGAINST THE CLEAR COMMAND OF THIS ACT OF
CONGRESS.  AS STATED BY THE COURT OF APPEALS, "IN THE ABSENCE OF
PROVISIONS CALLING EXPLICITLY FOR ILLEGAL CONDUCT, THE CONTRACT CANNOT
BE HELD ILLEGAL BECAUSE IT FAILED AFFIRMATIVELY TO DISCLAIM ALL ILLEGAL
OBJECTIVES."  279 F.2D, AT 330. 

WE ALSO AGREE WITH THE COURT OF APPEALS THAT THE GENERAL LAWS
PROVISION OF THE CONTRACT IS NOT PER SE UNLAWFUL.  FOR IT HAS IN IT THE
CONDITION THAT ONLY THOSE GENERAL LAWS OF THE UNION ARE INCORPORATED
WHICH ARE "NOT IN CONFLICT WITH THIS CONTRACT OR WITH FEDERAL OR STATE
LAW."  ANY RULE OR REGULATION OF THE UNION WHICH PERMITTED OR REQUIRED
DISCRIMINATION IN FAVOR OF UNION EMPLOYEES WOULD, THEREFORE, BE
EXCLUDED FROM INCORPORATION IN THE CONTRACT SINCE IT WOULD BE AT WAR
WITH THE ACT.  WE CAN SAY WITH JUDGE PRETTYMAN IN HONOLULU STAR
BULLETIN V. LABOR BOARD, 107 U.S. APP. D.C. 58, 61, 274 F.2D 567, 570,
THAT WHILE THE WORDS "NOT IN CONFLICT WITH FEDERAL  ...  LAW" MIGHT IN
SOME CIRCUMSTANCES BE PUZZLING OR UNCERTAIN AS TO MEANING, "THERE COULD
HARDLY BE ANY UNCERTAINTY RESPECTING A CLOSED-SHOP CLAUSE."  FOR THE
COMMAND OF SEC. 8 IS CLEAR AND EXPLICIT AND THE ONLY EXCEPTION IS
PLAINLY SPELLED OUT IN THE PROVISOS TO SEC. 8(A)(3). 

WHETHER IN PRACTICE RESPONDENTS MAINTAINED AND ENFORCED CLOSED-SHOP
AND PREFERENTIAL HIRING CONDITIONS RAISES A DISTINCT QUESTION. 

THE BOARD'S CASE COMES DOWN TO THE METHOD BY WHICH THOSE IN THE MAIL
ROOM BECAME JOURNEYMEN.  ONE COULD EITHER TAKE AN APPRENTICE TRAINING
PROGRAM OR PASS A COMPETENCY EXAMINATION.  APPRENTICES WERE HIRED BY
THE FOREMEN; BUT THE COURT OF APPEALS FOUND THAT THERE WERE NO
DISCRIMINATORY PRACTICES IN THE ACTUAL HIRING OF APPRENTICES.  IF A
PERSON FOLLOWED THE EXAMINATION ROUTE, THE CONTRACT PROVIDED FOR IT TO
BE GIVEN "BY IMPARTIAL EXAMINERS QUALIFIED TO JUDGE JOURNEYMAN
COMPETENCY SELECTED BY THE PARTIES HERETO."  THE EXAMINERS WERE UNION
OFFICIALS AND THE MAIL-ROOM FOREMEN. 

THE UNION PROPOSED AND NEWS SYNDICATE AGREED IN 1956 TO PUT INTO THE
CLASS OF A "REGULAR SUBSTITUTE" THOSE EXTRAS WHO IN THE PRIOR TWO YEARS
HAD EARNED 15 VACATION CREDITS, WHICH WAS ANOTHER WAY OF DESCRIBING
THOSE WHO HAD AVERAGED ABOUT THREE DAYS' WORK A WEEK.  THOSE WHO WERE
HIRED ON A DAY-TO-DAY BASIS ("SHAPED FOR WORK") INCLUDED 60 NONUNION
MEN.  OF THESE, 31 WERE INVITED TO TAKE THE EXAMINATION.  THEY PASSED,
WERE MADE "REGULAR SUBSTITUTES," AND SUBSEQUENTLY BECAME UNION
MEMBERS.  THEREAFTER EACH OF THE NEW "REGULAR SUBSTITUTES" WAS HIRED
PRIOR TO RANDALL, THOUGH HE HAD "SHAPED" AT THE NEWS LONGER THAN MANY
OF THEM.  RANDALL, IT APPEARS, HAD FULL-TIME OUTSIDE JOBS THAT KEPT HIM
FROM "SHAPING" REGULARLY.  (FN3)  ARRIGALE WAS A NONJOURNEYMAN WHO
SHAPED UP FOR THE WALL STREET JOURNAL, WHICH HAD ESSENTIALLY THE SAME
HIRING SETUP AS THE NEWS.  THE ASSERTED DISCRIMINATION OCCURRED WHEN
"OUTSIDE CARDMEN" WERE HIRED IN PREFERENCE TO ARRIGALE, ALTHOUGH
ARRIGALE WAS "SHAPING" STEADILY AND WAS THE OLDEST NONUNION EXTRA.  THE
FOREMAN TESTIFIED HE TOOK "OUTSIDE CARD-MEN" BECAUSE HE COULD BE SURE
OF THEIR COMPETENCY, BECAUSE THEY WOULD HAVE TAKEN THE JOURNEYMAN TEST
OR HAD SERVED AS APPRENTICES.  THERE WAS NO EVIDENCE THAT MEMBERSHIP IN
THE UNION WAS A CONDITION FOR THE JOURNEYMAN TEST, SAVE THAT ALL
JOURNEYMEN IN FACT DID BECOME UNION MEN. 

RESPONDENTS, THEREFORE, CONTEND THAT TO ACCORD PRIORITY IN THE HIRE
OF EXTRAS TO MEN WHO WORK REGULARLY FOR THE EMPLOYER (AND WHO ALSO HAVE
THE JOURNEYMAN STATUS) IS A HIRING SYSTEM BASED ON COMPETENCY AND
LEGITIMATE EMPLOYEE QUALIFICATIONS. 

THE COURT OF APPEALS CONCLUDED: 

"WE FIND  ... A DEARTH OF EVIDENCE EITHER THAT A UNION JOURNEYMAN HAS
EVER BEEN HIRED IN PREFERENCE (LET ALONE, AN UNLAWFUL PREFERENCE) TO A
NONUNION JOURNEYMAN, OR THAT THE QUALIFYING STANDARDS FOR TAKING A
COMPETENCY EXAMINATION ARE DISCRIMINATORY.  THE RECORD IS BARREN OF
EVEN THE SLIGHTEST HINT THAT THERE HAS BEEN DISCRIMINATION IN THE
CONDUCT OF THE EXAMINATIONS.  AVAILABILITY, DEPENDABILITY AND
REGULARITY OF SERVICE, AS WELL AS MERE COMPETENCY, ARE VALID
NONDISCRIMINATORY CONSIDERATIONS IN DETERMINING THE ORDER OF HIRE.  THE
FACT THAT ONE APPLICANT IS AS COMPETENT AS ANOTHER, DOES NOT MEAN THAT
THE OTHER MAY NOT PROPERLY BE PREFERRED ON THE BASIS OF HIS OTHER
QUALIFICATIONS.  AND THE FACT THAT THOSE ACHIEVING STATUS AS NEW
'REGULAR SUBSTITUTES' SUBSEQUENTLY BECAME UNION MEMBERS AND EVEN
INDICATED THEIR WILLINGNESS TO DO SO PRIOR TO THE ADOPTION OF THE
STANDARD, DOES NOT INDICATE, AT LEAST ON THIS RECORD, THAT THE
STANDARD, SEEMINGLY FAIR, WAS DISCRIMINATORY IN ITS EFFECT.  RANDALL
ADMITTED THAT HE WOULD HAVE WELCOMED THE OPPORTUNITY TO BECOME A UNION
MEMBER, AND FOR AUGHT THAT APPEARS IN THE RECORD, SO WOULD THE
REMAINING EXTRAS WHO DID NOT MEET THE ESTABLISHED STANDARD. 

"WE CONCLUDE THAT THE RECORD DOES NOT WARRANT A FINDING THAT THE
HIRING SYSTEM IN GENERAL, OR THE COMPETENCY SYSTEM IN PARTICULAR, BY
ITS DISCRIMINATION AGAINST NONUNION APPLICANTS, ENCOURAGED UNION
MEMBERSHIP."  279 F.2D, AT PP. 333-334. 

THIS FINDING OF THE COURT OF APPEALS DISPOSED OF ARRIGALE'S COMPLAINT
AND ALL OF RANDALL'S WITH THE EXCEPTION OF THE LOSS OF ONE NIGHT'S
EMPLOYMENT AS TO WHICH THE COURT SUSTAINED THE BOARD.  THE BOARD DREW
CONTRARY INFERENCES.  BUT IT DOES NOT NOW SERIOUSLY CHALLENGE THE
FOREGOING FINDING OF THE COURT OF APPEALS.  RATHER, ITS MAIN RELIANCE
IS ON THE LONG HISTORY OF ITU'S USE OF THE CLOSED SHOP, THE FACT THAT
FOREMEN WERE UNION MEMBERS, AND THE OBSCURITY OF THE "NOT IN CONFLICT"
CLAUSE OF THE AGREEMENT.  WE THINK THE REVERSAL OF THE BOARD ON THE
FACTS BY THE COURT OF APPEALS WAS WITHIN THE SCOPE OF REVIEW ENTRUSTED
TO IT.  SEE UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 490
491.  AFFIRMED. 

FN1  SECTION 8 PROVIDES IN RELEVANT PART: 

"(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 7: 

     *         *         *         *         * 

"(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, THAT NOTHING IN THIS
ACT, OR IN ANY OTHER STATUTE OF THE UNITED STATES, SHALL PRECLUDE AN
EMPLOYER FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION (NOT
ESTABLISHED, MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN SECTION
8(A) OF THIS ACT AS AN UNFAIR LABOR PRACTICE) TO REQUIRE AS A CONDITION
OF EMPLOYMENT MEMBERSHIP THEREIN ON OR AFTER THE THIRTIETH DAY
FOLLOWING THE BEGINNING OF SUCH EMPLOYMENT OR THE EFFECTIVE DATE OF
SUCH AGREEMENT, WHICHEVER IS THE LATER  ...  .  PROVIDED FURTHER, THAT
NO EMPLOYER SHALL JUSTIFY ANY DISCRIMINATION AGAINST AN EMPLOYEE FOR
NONMEMBERSHIP IN A LABOR ORGANIZATION (A) IF HE HAS REASONABLE GROUNDS
FOR BELIEVING THAT SUCH MEMBERSHIP WAS NOT AVAILABLE TO THE EMPLOYEE ON
THE SAME TERMS AND CONDITIONS GENERALLY APPLICABLE TO OTHER MEMBERS, OR
(B) IF HE HAS REASONABLE GROUNDS FOR BELIEVING THAT MEMBERSHIP WAS
DENIED OR TERMINATED FOR REASONS OTHER THAN THE FAILURE OF THE EMPLOYEE
TO TENDER THE PERIODIC DUES AND THE INITIATION FEES UNIFORMLY REQUIRED
AS A CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP; 

*         *         *         *         * 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7: PROVIDED, THAT THIS PARAGRAPH SHALL NOT
IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN  ...
. 

"(2)  TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE
AGAINST AN EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3) OR TO
DISCRIMINATE AGAINST AN EMPLOYEE WITH RESPECT TO WHOM MEMBERSHIP IN
SUCH ORGANIZATION HAS BEEN DENIED OR TERMINATED ON SOME GROUND OTHER
THAN HIS FAILURE TO TENDER THE PERIODIC DUES AND THE INITIATION FEES
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP
...  ." 


"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)." 

FN2  THE 1947 AMENDMENTS TO THE ACT CHANGED THE RULING IN PACKARD
MOTOR CAR CO. V. LABOR BOARD, 330 U.S. 485, WHICH HELD THAT FOREMEN
WERE "EMPLOYEES."  SECTION 2(3) NOW EXCLUDES FROM THE TERM "EMPLOYEES"
ONE WHO IS "EMPLOYED AS A SUPERVISOR."  SECTION 2(11) DEFINES A
"SUPERVISOR" AS ONE "HAVING AUTHORITY, IN THE INTEREST OF THE EMPLOYER,
TO HIRE," ETC., EMPLOYEES.  SECTION 14(A) PROVIDES:    "NOTHING HEREIN
SHALL PROHIBIT ANY INDIVIDUAL EMPLOYED AS A SUPERVISOR FROM BECOMING OR
REMAINING A MEMBER OF A LABOR ORGANIZATION, BUT NO EMPLOYER SUBJECT TO
THIS ACT SHALL BE COMPELLED TO DEEM INDIVIDUALS DEFINED HEREIN AS
SUPERVISORS AS EMPLOYEES FOR THE PURPOSE OF ANY LAW, EITHER NATIONAL OR
LOCAL, RELATING TO COLLECTIVE BARGAINING." 

AS STATED BY SENATOR TAFT, UNDER THESE PROVISIONS EVEN A UNION OF
FOREMEN COULD BE RECOGNIZED BY AN EMPLOYER, THOUGH NO EMPLOYER COULD BE
COMPELLED TO DO SO.  S. REP. NO. 105, 80TH CONG., 1ST SESS., P. 5. 

FN3  BURTON RANDALL IS NEITHER A UNION MEMBER NOR A JOURNEYMAN WITHIN
THE MEANING OF THE CONTRACT BETWEEN THE UNION AND THE NEWS.  THE HIRING
PRACTICES AT THE NEWS ARE AS FOLLOWS:  THE MINIMUM MAILING-ROOM STAFF
("REGULAR SITUATION HOLDERS") ARE BOTH UNION MEMBERS AND JOURNEYMEN;
THEY REPORT FOR WORK EACH NIGHT AND ARE NOT REQUIRED TO "SHAPE."  TO
FILL IN VACANCIES AND TO MEET ADDED NEEDS, THE FOREMAN NEXT TURNS TO
"REGULAR SUBSTITUTES," WHO ARE BOTH JOURNEYMEN AND UNION MEMBERS.  NEXT
IN LINE OF PRIORITY ARE THOSE THE BOARD INSISTS ARE REFERRED TO AS
"OUTSIDE CARD MEN," BUT WHO ARE AT ANY RATE BOTH JOURNEYMEN AND UNION
MEMBERS REGULARLY SHAPING UP FOR OTHER NEWSPAPERS, BUT AVAILABLE FOR
WORK ON THE NEWS.  THE LOWEST PRIORITY CATEGORY CONSISTS OF WHAT THE
BOARD CALLS "NONUNION SHAPERS" (AND THE UNION, "NON-JOURNEYMEN
CASUALS"); AT ANY RATE, THESE MEN HAVE NEITHER UNION MEMBERSHIP NOR
JOURNEYMAN STATUS.  WITHIN THE CATEGORY, SUCH MEN ARE RANKED IN
SENIORITY RUNNING FROM THE DATE OF FIRST SHAPING UP FOR THE NEWS. 
BURTON RANDALL IS A "NONUNION SHAPER" OR "NON-JOURNEYMAN CASUAL."  HE
HAS BEEN TURNING UP FOR THE "SHAPING" AT THE NEWS FOR A GOOD MANY
YEARS; FOR MOST OF THEM, HE SHOWED ONLY ON FRIDAYS AND SATURDAYS SINCE
HE HELD ANOTHER JOB.  FROM 1950 TO 1956, HE WAS THIRD IN SENIORITY ON
THE "CASUAL" LIST; FROM 1956, HE WAS FIRST ON THAT LIST. 

MR. JUSTICE WHITTAKER DISSENTS.  SEE HIS DISSENTING OPINION IN
CARPENTERS LOCAL 60 V. LABOR BOARD, DECIDED THIS DAY, ANTE, P. 660. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

I JOIN THE COURT'S OPINION ON THE BASIS OF THE REASONING SET FORTH IN
MY CONCURRING OPINIONS IN NO. 68, ANTE, P. 656, AND IN NOS. 64 AND 85,
ANTE, P. 677. 

HERE, AS WITH RESPECT TO THE "HIRING HALL" CLAUSE IN NOS. 64 AND 85,
I THINK THE BOARD'S FINDING THAT THE "GENERAL LAWS" CLAUSE "ENCOURAGED"
UNION MEMBERSHIP MUST BE ACCEPTED.  I NEED ONLY ADD THAT IN LIGHT OF
THE HISTORIC USE OF SUCH CLAUSES TO MAINTAIN CLOSED-SHOP CONDITIONS, I
WOULD NOT BE WILLING TO OVERRULE THE BOARD'S DETERMINATION THAT THOSE
EMPLOYED OR SEEKING EMPLOYMENT IN THIS NEWSPAPER'S MAIL ROOM WOULD
REGARD THE INNOCENTLY WORDED INCORPORATION OF THE UNION'S VALID
"GENERAL LAWS" AS IN FACT EVIDENCING THE EMPLOYER'S AND UNION'S INTENT
TO ALLOW FORBIDDEN UNION BYLAWS TO GOVERN THEIR RELATIONSHIP AS REGARDS
EMPLOYMENT, UNTIL A FINDING OF AN UNFAIR LABOR PRACTICE ARISING
THEREFROM HAD ACTUALLY BEEN MADE. 

MR. JUSTICE CLARK, DISSENTING. 

I AGREE WITH THE COURT'S DISPOSITION OF THAT PART OF THE BOARD'S
ORDER REQUIRING RESPONDENTS TO REIMBURSE UNION MEMBERS FOR DUES AND
ASSESSMENTS.  HOWEVER, FOR THE REASONS STATED IN MY DISSENT IN NOS. 64
AND 85, ANTE, P. 685, I BELIEVE THAT THE INCLUSION IN THE AGREEMENT OF
THE "GENERAL LAWS" AND "FOREMAN" CLAUSES VIOLATED SEC. 8(B)(1)(A) AND
(2) AND SEC. 8(A)(1) AND (3).  I, THEREFORE, DISSENT FROM THOSE
PORTIONS OF THE COURT'S OPINION. 
..END :























INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO V. NATIONAL LABOR RELATIONS
BOARD 365 U.S. 705 


NO. 340.  ARGUED MARCH 1, 1961 - DECIDED APRIL 17, 1961 - 278 F.2D 6,
AFFIRMED IN PART AND REVERSED IN PART. 


IN COLLECTIVE BARGAINING NEGOTIATIONS, TWO UNIONS DEMANDED THAT THE
AGREEMENT REQUIRE THE EMPLOYERS TO COMPLY WITH UNION RULES "NOT IN
CONFLICT WITH" FEDERAL LAW AND THAT FOREMEN MUST BE UNION MEMBERS AND
DO THE HIRING, BUT THAT THEY SHOULD BE RESPONSIBLE ONLY TO THE
EMPLOYERS.  UNION INSISTENCE UPON THESE DEMANDS LED TO A DEADLOCK IN
THE NEGOTIATIONS AND A STRIKE.  THE EMPLOYERS FILED CHARGES WITH THE
NATIONAL LABOR RELATIONS BOARD, WHICH FOUND THAT (1) THE DEMAND FOR A
CONTRACT INCLUDING THESE REQUIREMENTS WAS A REFUSAL TO BARGAIN WITHIN
THE MEANING OF SEC. 8(B)(3) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, (2) STRIKING TO FORCE ACCEPTANCE OF THOSE REQUIREMENTS WAS AN
ATTEMPT TO MAKE THE EMPLOYERS DISCRIMINATE IN FAVOR OF UNION MEMBERS
CONTRARY TO SEC. 8(B)(2), AND (3) STRIKING FOR THE "FOREMAN CLAUSE" WAS
RESTRAINING AND COERCING THE EMPLOYERS IN THE SELECTION OF THEIR
REPRESENTATIVES FOR THE ADJUSTMENT OF GRIEVANCES IN VIOLATION OF SEC.
8(B)(1)(B).   HELD: 

1.  THE PROPOSED REQUIREMENT THAT EMPLOYERS COMPLY WITH UNION RULES
"NOT IN CONFLICT WITH" FEDERAL LAW WAS NOT UNLAWFUL PER SE.  LABOR
BOARD V. NEWS SYNDICATE CO., ANTE, P. 695.  P. 707. 

2.  AS TO WHETHER THE STRIKE TO OBTAIN THE "FOREMAN CLAUSE" WAS
PERMISSIBLE, THE COURT IS EQUALLY DIVIDED; AND THE JUDGMENT OF THE
COURT OF APPEALS ENFORCING THE BOARD'S ORDER ON THAT PHASE OF THE
CONTROVERSY IS AFFIRMED.  P. 707. 

INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ET AL. V. NATIONAL LABOR
RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES A CONTROVERSY THAT STARTED IN 1956 BETWEEN
PETITIONER LOCAL 165 AND THE WORCESTER TELEGRAM AND BETWEEN PETITIONER
LOCAL 38 AND THE HAVERHILL GAZETTE.  THE TWO UNIONS INSISTED THAT THE
COLLECTIVE BARGAINING AGREEMENTS THAT WERE BEING NEGOTIATED CONTAIN
CLAUSES OR PROVISIONS TO WHICH EACH EMPLOYER OBJECTED.  THE CONTROVERSY
AS IT REACHES HERE IS REDUCED TO TWO CLAUSES:  FIRST, THAT THE HIRING
FOR THE COMPOSING ROOM BE IN THE HANDS OF THE FOREMAN; THAT HE MUST BE
A MEMBER OF THE UNION; BUT THAT THE UNION "SHALL NOT DISCIPLINE THE
FOREMAN FOR CARRYING OUT WRITTEN INSTRUCTIONS OF THE PUBLISHER OR HIS
REPRESENTATIVES AUTHORIZED BY THIS AGREEMENT"; AND SECOND, THAT THE
GENERAL LAWS OF THE INTERNATIONAL TYPOGRAPHICAL UNION SHALL GOVERN THE
RELATIONS BETWEEN THE PARTIES IF THEY ARE "NOT IN CONFLICT WITH STATE
OR FEDERAL LAW."  THE UNIONS' DEMAND THAT THESE CLAUSES BE INCLUDED IN
THE AGREEMENT LED TO A DEADLOCK IN THE NEGOTIATIONS WHICH IN TURN
RESULTED IN A STRIKE. 

THE EMPLOYERS FILED CHARGES WITH THE BOARD, COMPLAINTS WERE ISSUED,
THE CASES CONSOLIDATED, AND HEARINGS HELD.  THE BOARD CONCLUDED THAT
THE DEMANDS FOR THE TWO CLAUSES AND THE STRIKES SUPPORTING THEM WERE
VIOLATIONS OF THE ACT.  IT FOUND THAT A DEMAND FOR A CONTRACT THAT
INCLUDED THOSE CLAUSES WAS A REFUSAL TO BARGAIN COLLECTIVELY WITHIN THE
MEANING OF SEC. 8(B)(3) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED
BY THE TAFT-HARTLEY ACT, 61 STAT. 136, 140-141, 29 U.S.C. SEC.
158(B)(3).  IT FOUND THAT STRIKING TO FORCE ACCEPTANCE OF THOSE CLAUSES
WAS AN ATTEMPT TO MAKE THE EMPLOYERS DISCRIMINATE IN FAVOR OF UNION
MEMBERS CONTRARY TO THE COMMAND OF SEC. 8(B)(2) OF THE ACT.  IT ALSO
FOUND THAT STRIKING FOR THE "FOREMAN CLAUSE" WAS RESTRAINING AND
COERCING THE EMPLOYERS IN THE SELECTION OF THEIR REPRESENTATIVES FOR
THE ADJUSTMENT OF GRIEVANCES IN VIOLATION OF SEC. 8(B)(1)(B) OF THE
ACT.  123 N.L.R.B. 806.  THE COURT OF APPEALS ENFORCED THE BOARD'S
ORDER APART FROM FEATURES NOT MATERIAL HERE.  278 F.2D 6.  THE CASE IS
HERE ON CERTIORARI, 364 U.S. 878. 

WHAT WE HAVE SAID IN LABOR BOARD V. NEWS SYNDICATE CO., DECIDED THIS
DAY, ANTE, P. 695, IS DISPOSITIVE OF THE CLAUSE WHICH INCORPORATES THE
GENERAL LAWS OF THE PARENT UNION "NOT IN CONFLICT WITH STATE OR FEDERAL
LAW."  ON THAT PHASE OF THE CASE THE JUDGMENT BELOW MUST BE REVERSED. 

MR. JUSTICE CLARK AND MR. JUSTICE WHITTAKER DISSENT, SUBSTANTIALLY
FOR THE REASONS STATED BY THE COURT OF APPEALS, 278 F.2D 6. 

WE TURN THEN TO THE CONTROVERSY OVER THE "FOREMAN CLAUSE."  AS TO
WHETHER THE STRIKE TO OBTAIN THE "FOREMAN CLAUSE" WAS PERMISSIBLE, THE
COURT IS EQUALLY DIVIDED.  ACCORDINGLY THE JUDGMENT ON THAT PHASE OF
THE CONTROVERSY IS AFFIRMED.  REVERSED IN PART AND AFFIRMED IN PART. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

I JOIN THE COURT'S OPINION UPON THE BASIS SET FORTH IN MY CONCURRING
OPINIONS IN NO. 339, ANTE, P. 703, AND IN NOS. 64 AND 85, ANTE, P.
677. 
..END :
























SMITH V. BENNETT 365 U.S. 708 


NO. 174.  ARGUED MARCH 28, 1961 - DECIDED APRIL 17, 1961* - JUDGMENTS
VACATED AND CAUSES REMANDED. 

*TOGETHER WITH NO. 177, MARSHALL V. BENNETT, WARDEN, ALSO ON
CERTIORARI TO THE SAME COURT. 


IOWA STATUTES THAT REQUIRE AN INDIGENT PRISONER OF THE STATE TO PAY A
FILING FEE BEFORE HIS APPLICATION FOR A WRIT OF HABEAS CORPUS ($4) OR
THE ALLOWANCE OF HIS APPEAL ($3) IN SUCH PROCEEDINGS WILL BE DOCKETED
IN A STATE COURT DENY HIM THE EQUAL PROTECTION OF THE LAWS IN VIOLATION
OF THE FOURTEENTH AMENDMENT.  BURNS V. OHIO, 360 U.S. 252.  PP. 708
714. 

SMITH V. BENNETT, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF IOWA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THESE HABEAS CORPUS CASES CONCERNS THE VALIDITY, UNDER
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, OF THE
REQUIREMENT OF IOWA LAW THAT NECESSITATES THE PAYMENT OF STATUTORY
FILING FEES (FN1) BY AN INDIGENT PRISONER OF THE STATE BEFORE AN
APPLICATION FOR A WRIT OF HABEAS CORPUS OR THE ALLOWANCE OF AN APPEAL
IN SUCH PROCEEDINGS WILL BE DOCKETED.  AS WE NOTED IN BURNS V. OHIO,
360 U.S. 252, 256 (1959), "THE STATE'S COMMENDABLE FRANKNESS IN THESE
...  CASES HAS SIMPLIFIED THE ISSUES."  IN ITS BRIEF, THE STATE
CONCEDED THAT "INDIGENT CONVICTED CRIMINALS ARE UNABLE TO FILE A
PETITION FOR HABEAS CORPUS IN IOWA."  WE HOLD THAT TO INTERPOSE ANY
FINANCIAL CONSIDERATION BETWEEN AN INDIGENT PRISONER OF THE STATE AND
HIS EXERCISE OF A STATE RIGHT TO SUE FOR HIS LIBERTY IS TO DENY THAT
PRISONER THE EQUAL PROTECTION OF THE LAWS. 

IN NO. 174, NEAL MERLE SMITH V. JOHN E. BENNETT, WARDEN, THE
PETITIONER WAS CONVICTED AND SENTENCED TO SERVE 10 YEARS IN THE STATE
PENITENTIARY FOR THE OFFENSE OF BREAKING AND ENTERING.  IN DUE COURSE
HE WAS RELEASED ON PAROLE.  AFTER A SHORT PERIOD, HOWEVER, THIS WAS
REVOKED FOR VIOLATION OF ITS CONDITIONS.  PETITIONER WAS ARRESTED AND
WAS THEREAFTER RETURNED TO THE PENITENTIARY FOR COMPLETION OF HIS
SENTENCE.  HE THEN FORWARDED TO THE CLERK OF THE DISTRICT COURT OF LEE
COUNTY, IOWA, A PETITION FOR A WRIT OF HABEAS CORPUS WITH ACCOMPANYING
MOTION TO PROCEED IN FORMA PAUPERIS AND AN AFFIDAVIT OF POVERTY.  IN
THE PETITION HE RAISED CONSTITUTIONAL QUESTIONS AS TO THE VALIDITY OF
THE WARRANT OF ARREST UNDER WHICH HE WAS TAKEN INTO CUSTODY AND
RETURNED TO THE PENITENTIARY.  THE CLERK REFUSED TO DOCKET THE PETITION
WITHOUT PAYMENT OF THE $4 FILING FEE.  PETITIONER THEN FILED A MOTION
IN THE IOWA SUPREME COURT FOR LEAVE TO APPEAL IN FORMA PAUPERIS,
TOGETHER WITH A PAUPER'S OATH, WHICH THE COURT DENIED WITHOUT OPINION. 
ON APPEAL TO THIS COURT, WE DISMISSED THE APPEAL BUT TREATED THE PAPERS
AS A PETITION FOR CERTIORARI, WHICH WAS GRANTED, LIMITED TO THE ABOVE
QUESTION, 363 U.S. 834. 

IN NO. 177, RICHARD W. MARSHALL V. JOHN E. BENNETT, WARDEN, THE
PETITIONER, WHO WAS REPRESENTED BY COUNSEL, PLEADED GUILTY TO AN
INFORMATION CHARGING THE OFFENSE OF BREAKING AND ENTERING AND WAS
SENTENCED TO 10 YEARS' IMPRISONMENT AT THE IOWA STATE PENITENTIARY.  A
YEAR LATER HE FORWARDED TO THE CLERK OF THE DISTRICT COURT OF LEE
COUNTY, IOWA, A PETITION FOR A WRIT OF HABEAS CORPUS ALLEGING THAT HE
WAS DETAINED "CONTRARY TO THE PROVISIONS OF THE 14TH AMENDMENT, SEC. 1"
BECAUSE THE INFORMATION TO WHICH HE PLEADED GUILTY WAS "FATAL ON ITS
FACE" IN THAT "IT DOES NOT CHARGE PETITIONER WITH 'INTENT'" AND FURTHER
BECAUSE HIS "PLEA THEREON WAS OBTAINED BY COERCION AND DURESS." 
ACCOMPANYING THE PETITION WAS A MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND A PAUPER'S AFFIDAVIT.  THEREAFTER, IN AN UNREPORTED
WRITTEN ORDER, THE COURT REFUSED TO DOCKET THE PETITION WITHOUT THE
PAYMENT OF THE STATUTORY FILING FEE BUT, NEVERTHELESS, EXAMINED THE
PETITION AND FOUND IT "WOULD HAVE TO BE DENIED IF PROPERLY PRESENTED TO
THE COURT."  PETITIONER FORWARDED APPEAL PAPERS TO THE SUPREME COURT OF
IOWA BUT THAT APPLICATION WAS ALSO DENIED.  PETITIONER'S MOTION FOR
LEAVE TO PROCEED HERE IN FORMA PAUPERIS WAS GRANTED, AS WAS HIS
PETITION FOR CERTIORARI, WHICH WAS LIMITED TO THE QUESTION POSED IN THE
OPENING PARAGRAPH, SUPRA.  363 U.S. 838. 

IN BURNS V. OHIO, SUPRA, WE DECIDED THAT A STATE COULD NOT
"CONSTITUTIONALLY REQUIRE  ...  AN INDIGENT DEFENDANT IN A CRIMINAL
CASE TO PAY A FILING FEE BEFORE PERMITTING HIM TO FILE A MOTION FOR
LEAVE TO APPEAL IN ONE OF ITS COURTS."  AT P. 253.  THAT DECISION WAS
PREDICATED UPON OUR EARLIER HOLDING IN GRIFFIN V. ILLINOIS, 351 U.S. 12
(1956), THAT AN INDIGENT CRIMINAL DEFENDANT WAS ENTITLED TO A
TRANSCRIPT OF THE RECORD OF HIS TRIAL, OR AN ADEQUATE SUBSTITUTE
THEREFOR, WHERE NEEDED TO EFFECTIVELY PROSECUTE AN APPEAL FROM HIS
CONVICTION.  THE GIST OF THESE CASES IS THAT BECAUSE "THERE IS NO
RATIONAL BASIS FOR ASSUMING THAT INDIGENTS' MOTIONS FOR LEAVE TO APPEAL
WILL BE LESS MERITORIOUS THAN THOSE OF OTHER DEFENDANTS," BURNS V.
OHIO, SUPRA, AT 257-258, "THERE CAN BE NO EQUAL JUSTICE WHERE THE KIND
OF TRIAL A MAN GETS DEPENDS ON THE AMOUNT OF MONEY HE HAS," GRIFFIN V.
ILLINOIS, SUPRA, AT 19, AND CONSEQUENTLY THAT "THE IMPOSITION BY THE
STATE OF FINANCIAL BARRIERS RESTRICTING THE AVAILABILITY OF APPELLATE
REVIEW FOR INDIGENT CRIMINAL DEFENDANTS HAS NO PLACE IN OUR HERITAGE OF
EQUAL JUSTICE UNDER LAW."  BURNS V. OHIO, SUPRA, AT 258.  IOWA HAD LONG
ANTICIPATED THE RULE ANNOUNCED IN THESE CASES, I.E., INDIGENT
DEFENDANTS MAY APPEAL FROM CRIMINAL CONVICTIONS WITHOUT PRIOR PAYMENT
OF FILING FEES, IOWA CODE SEC. 789.20 (ENACTED IN 1917), AND
TRANSCRIPTS ARE PROVIDED BY THE COUNTY TO BE USED IN SUCH APPEALS, IOWA
CODE SEC. 792.8 (ENACTED IN 1878).  AS THE STATE POINTS OUT, THOSE
CASES "WERE CONCERNED WITH THE RIGHTS OF A CONVICTED CRIMINAL SEEKING
TO MAKE A DIRECT ATTACK UPON HIS CONVICTION BY APPEAL  ...  ."  HABEAS
CORPUS, ON THE OTHER HAND, IS NOT AN ATTACK ON THE CONVICTION BUT ON
THE VALIDITY OF THE DETENTION AND IS, THEREFORE, A COLLATERAL
PROCEEDING.  THE STATE, HOWEVER, ADMITS THAT THE GREAT WRIT "IS AN
AVAILABLE POST-CONVICTION CIVIL REMEDY IN  ...  IOWA" AND CONCEDES THAT
A PRISONER'S INABILITY TO PAY THE $4 FEE WOULD RENDER IT UNAVAILABLE TO
HIM.  THE QUESTION IS THEREFORE CLEARLY POSED: SINCE IOWA DOES MAKE THE
WRIT AVAILABLE TO PRISONERS WHO HAVE THE $4 FEE, MAY IT
CONSTITUTIONALLY PRECLUDE ITS USE BY THOSE WHO DO NOT? 

THE STATE INSISTS THAT IT MAY DO SO FOR THREE REASONS.  FIRST, HABEAS
CORPUS IS A CIVIL ACTION BROUGHT BY A PRISONER TO OBTAIN HIS PERSONAL
LIBERTY, A CIVIL RIGHT, AND IF IT MUST BE MADE AVAILABLE TO INDIGENTS
FREE OF FEES IN PROTECTION OF THAT RIGHT THEN IT MUST BE MADE AVAILABLE
IN LIKE MANNER TO ALL INDIGENTS IN THE PROTECTION OF EVERY CIVIL
RIGHT.  SECOND, HABEAS CORPUS IS A STATUTORY RIGHT, IOWA CODE SEC.
663.5, AND THE LEGISLATURE MAY CONSTITUTIONALLY EXTEND OR LIMIT ITS
APPLICATION.  FINALLY, A HABEAS CORPUS ACTION MAY BE BROUGHT IN THE
UNITED STATES DISTRICT COURT BECAUSE IOWA'S FEE REQUIREMENT FULFILLS
THE DEMAND OF 28 U.S.C.  SEC. 2254, THAT "THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH STATE CORRECTIVE PROCESS INEFFECTIVE TO
PROTECT THE RIGHTS OF THE PRISONER" BE PRESENT. 

WHILE HABEAS CORPUS MAY, OF COURSE, BE FOUND TO BE A CIVIL ACTION FOR
PROCEDURAL PURPOSES, EX PARTE TOM TONG, 108 U.S. 556 (1883), IT DOES
NOT FOLLOW THAT ITS AVAILABILITY IN TESTING THE STATE'S RIGHT TO DETAIN
AN INDIGENT PRISONER MAY BE SUBJECT TO THE PAYMENT OF A FILING FEE. 
THE STATE ADMITS THAT EACH PETITIONER HERE IS AN INDIGENT AND THAT ITS
REQUIREMENT AS TO THE $4 FEE PAYMENT HAS EFFECTIVELY DENIED THEM THE
USE OF THE WRIT.  WHILE $4 IS, AS THE STATE SAYS, AN "EXTREMELY
NOMINAL" SUM, IF ONE DOES NOT HAVE IT AND IS UNABLE TO GET IT THE FEE
MIGHT AS WELL BE $400 - WHICH THE STATE EMPHASIZES IT IS NOT.  IN IOWA,
THE WRIT IS A POST-CONVICTION REMEDY AVAILABLE TO ALL PRISONERS WHO
HAVE $4.  WE SHALL NOT QUIBBLE AS TO WHETHER IN THIS CONTEXT IT BE
CALLED A CIVIL OR CRIMINAL ACTION FOR, AS SELDEN HAS SAID, IT IS "THE
HIGHEST REMEDY IN LAW, FOR ANY MAN THAT IS IMPRISONED."  3 HOWELL'S
STATE TRIALS 95 (1628).  THE AVAILABILITY OF A PROCEDURE TO REGAIN
LIBERTY LOST THROUGH CRIMINAL PROCESS CANNOT BE MADE CONTINGENT UPON A
CHOICE OF LABELS.  EVER SINCE THE MAGNA CHARTA, MAN'S GREATEST RIGHT -
PERSONAL LIBERTY - HAS BEEN GUARANTEED, AND THE PROCEDURES OF THE
HABEAS CORPUS ACT OF 1679 (FN2) GAVE TO EVERY ENGLISHMAN A PROMPT AND
EFFECTIVE REMEDY FOR TESTING THE LEGALITY OF HIS IMPRISONMENT. 
CONSIDERED BY THE FOUNDERS AS THE HIGHEST SAFEGUARD OF LIBERTY, IT WAS
WRITTEN INTO THE CONSTITUTION OF THE UNITED STATES THAT ITS "PRIVILEGE
...  SHALL NOT BE SUSPENDED, UNLESS WHEN IN CASES OF REBELLION OR
INVASION THE PUBLIC SAFETY MAY REQUIRE IT."  ART. I, SEC. 9.  ITS
PRINCIPLE IS IMBEDDED IN THE FUNDAMENTAL LAW OF 47 OF OUR STATES.  IT
HAS LONG BEEN AVAILABLE IN THE FEDERAL COURTS TO INDIGENT PRISONERS OF
BOTH THE STATE AND FEDERAL GOVERNMENTS TO TEST THE VALIDITY OF THEIR
DETENTION.  OVER THE CENTURIES IT HAS BEEN THE COMMON LAW WORLD'S
"FREEDOM WRIT" BY WHOSE ORDERLY PROCESSES THE PRODUCTION OF A PRISONER
IN COURT MAY BE REQUIRED AND THE LEGALITY OF THE GROUNDS FOR HIS
INCARCERATION INQUIRED INTO, FAILING WHICH THE PRISONER IS SET FREE. 
WE REPEAT WHAT HAS BEEN SO TRULY SAID OF THE FEDERAL WRIT:  "THERE IS
NO HIGHER DUTY THAN TO MAINTAIN IT UNIMPAIRED," BOWEN V. JOHNSTON, 306
U.S. 19, 26 (1939), AND UNSUSPENDED, SAVE ONLY IN THE CASES SPECIFIED
IN OUR CONSTITUTION.  WHEN AN EQUIVALENT RIGHT IS GRANTED BY A STATE,
FINANCIAL HURDLES MUST NOT BE PERMITTED TO CONDITION ITS EXERCISE. 

TO REQUIRE THE STATE TO DOCKET APPLICATIONS FOR THE POST-CONVICTION
REMEDY OF HABEAS CORPUS BY INDIGENT PRISONERS WITHOUT THE FEE PAYMENT
DOES NOT NECESSARILY MEAN THAT ALL HABEAS CORPUS OR OTHER ACTIONS
INVOLVING CIVIL RIGHTS MUST BE ON THE SAME FOOTING.  ONLY THOSE
INVOLVING INDIGENT CONVICTED PRISONERS ARE INVOLVED HERE AND WE PASS
ONLY UPON THEM. 

THE ATTORNEY GENERAL OF IOWA ALSO ARGUES THAT INDIGENT PRISONERS IN
THE STATE'S CUSTODY MAY SEEK "VINDICATION OF FEDERAL RIGHTS ALLEGED TO
HAVE BEEN DENIED BY THE STATE" IN THE FEDERAL COURTS.  BUT EVEN THOUGH
THIS BE TRUE - AN ADDITIONAL POINT NOT INVOLVED OR PASSED UPON HERE -
IT WOULD ILL-BEHOOVE THIS GREAT STATE, WHOSE DEVOTION TO THE EQUALITY
OF RIGHTS IS INDELIBLY STAMPED UPON ITS HISTORY, TO SAY TO ITS INDIGENT
PRISONERS SEEKING TO REDRESS WHAT THEY BELIEVE TO BE THE STATE'S
WRONGS:  "GO TO THE FEDERAL COURT."  MOREOVER, THE STATE REMEDY MAY
OFFER REVIEW OF QUESTIONS NOT INVOLVING FEDERAL RIGHTS AND THEREFORE
NOT RAISABLE IN FEDERAL HABEAS CORPUS. 

BECAUSE IOWA HAS ESTABLISHED SUCH A PROCEDURE, WE NEED CONSIDER
NEITHER THE ISSUE RAISED BY PETITIONERS THAT THE STATE IS
CONSTITUTIONALLY REQUIRED TO OFFER SOME TYPE OF POST-CONVICTION REMEDY
FOR THE VINDICATION OF FEDERAL RIGHTS, NOR THE STATE'S CONVERSE CLAIM
THAT THE REMEDY IS A MATTER OF LEGISLATIVE GRACE.  HOWEVER, THE
OPERATION OF THE STATUTES UNDER ATTACK HAS, PERHAPS INADVERTENTLY, MADE
IT AVAILABLE ONLY TO THOSE PERSONS WHO CAN PAY THE NECESSARY FILING
FEES.  THIS IS WHAT IT CANNOT DO. 

THROUGHOUT THE CENTURIES THE GREAT WRIT HAS BEEN THE SHIELD OF
PERSONAL FREEDOM INSURING LIBERTY TO PERSONS ILLEGALLY DETAINED. 
RESPECTING THE STATE'S GRANT OF A RIGHT TO TEST THEIR DETENTION, THE
FOURTEENTH AMENDMENT WEIGHS THE INTERESTS OF RICH AND POOR CRIMINALS IN
EQUAL SCALE, AND ITS HAND EXTENDS AS FAR TO EACH.  IN FAILING TO EXTEND
THE PRIVILEGE OF THE GREAT WRIT TO ITS INDIGENT PRISONERS, IOWA DENIES
THEM EQUAL PROTECTION OF THE LAWS.  THE JUDGMENTS OF THE SUPREME COURT
OF IOWA ARE VACATED AND EACH CAUSE IS REMANDED TO THAT COURT FOR
FURTHER ACTION CONSISTENT WITH THIS OPINION.  VACATED AND REMANDED. 

FN1  IOWA CODE ANN. (CUM. SUPP. 1960) SEC. 606.15 PROVIDES IN
PERTINENT PART THAT "THE CLERK OF THE DISTRICT COURT SHALL CHARGE AND
COLLECT  ...  FOR FILING ANY PETITION  ...  AND DOCKETING THE SAME,
FOUR DOLLARS."  SECTION 685.3 STATES IN RELEVANT PART THAT "THE CLERK
OF THE SUPREME COURT SHALL COLLECT  ...  UPON FILING EACH APPEAL, THREE
DOLLARS." 

FN2  31 CAR.  II, C. 2. 
..END :



BURTON V. WILMINGTON PARKING AUTHORITY 365 U.S. 715 


NO. 164.  ARGUED FEBRUARY 21, 23, 1961 - DECIDED APRIL 17, 1961 - DEL. -
, 157 A.2D 894, REVERSED. 


A RESTAURANT LOCATED IN A PUBLICLY OWNED AND OPERATED AUTOMOBILE
PARKING BUILDING REFUSED TO SERVE APPELLANT FOOD OR DRINK SOLELY
BECAUSE HE WAS A NEGRO.  THE BUILDING HAD BEEN BUILT WITH PUBLIC FUNDS
FOR PUBLIC PURPOSES, AND IT WAS OWNED AND OPERATED BY AN AGENCY OF THE
STATE OF DELAWARE, FROM WHICH THE PRIVATE OPERATOR OF THE RESTAURANT
LEASED ITS PREMISES.  CLAIMING THAT REFUSAL TO SERVE HIM ABRIDGED HIS
RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT,
APPELLANT SUED IN A STATE COURT FOR DECLARATORY AND INJUNCTIVE RELIEF
AGAINST THE RESTAURANT AND THE STATE AGENCY.  THE SUPREME COURT OF
DELAWARE HELD THAT HE WAS NOT ENTITLED TO RELIEF, ON THE GROUND THAT
THE RESTAURANT'S ACTION WAS NOT STATE ACTION WITHIN THE MEANING OF THE
FOURTEENTH AMENDMENT AND THAT THE RESTAURANT WAS NOT REQUIRED BY A
DELAWARE STATUTE TO SERVE ALL PERSONS ENTERING ITS PLACE OF BUSINESS. 
AN APPEAL WAS TAKEN TO THIS COURT ON THE GROUND THAT THE STATE STATUTE
HAD BEEN CONSTRUED UNCONSTITUTIONALLY.  HELD: 

1.  THE APPEAL IS DISMISSED, SINCE THE JUDGMENT DID NOT DEPEND FOR
ITS ULTIMATE SUPPORT UPON A DETERMINATION OF THE CONSTITUTIONAL
VALIDITY OF THE STATE STATUTE; BUT, TREATING THE PAPERS WHEREON THE
APPEAL WAS TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS
GRANTED, SINCE THE CASE PRESENTS AN IMPORTANT CONSTITUTIONAL QUESTION
UNDER THE FOURTEENTH AMENDMENT.  PP. 717, 721. 

2.  IN VIEW OF ALL THE CIRCUMSTANCES OF THIS CASE, INCLUDING THE
FACTS THAT THE RESTAURANT WAS PHYSICALLY AND FINANCIALLY AN INTEGRAL
PART OF A PUBLIC BUILDING, BUILT AND MAINTAINED WITH PUBLIC FUNDS,
DEVOTED TO A PUBLIC PARKING SERVICE, AND OWNED AND OPERATED BY AN
AGENCY OF THE STATE FOR PUBLIC PURPOSES, THE STATE WAS A JOINT
PARTICIPANT IN THE OPERATION OF THE RESTAURANT, AND ITS REFUSAL TO
SERVE APPELLANT VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 721-726. 

3.  WHEN A STATE LEASES PUBLIC PROPERTY IN THE MANNER AND FOR THE
PURPOSE SHOWN TO HAVE BEEN THE CASE HERE, THE PROSCRIPTIONS OF THE
FOURTEENTH AMENDMENT MUST BE COMPLIED WITH BY THE LESSEE AS CERTAINLY
AS THOUGH THEY WERE BINDING COVENANTS WRITTEN INTO THE AGREEMENT
ITSELF.  P. 726. 

BURTON V. WILMINGTON PARKING AUTHORITY ET AL. 

APPEAL FROM THE SUPREME COURT OF DELAWARE. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN THIS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF IT IS ADMITTED
THAT THE EAGLE COFFEE SHOPPE, INC., A RESTAURANT LOCATED WITHIN AN OFF
STREET AUTOMOBILE PARKING BUILDING IN WILMINGTON, DELAWARE, HAS REFUSED
TO SERVE APPELLANT FOOD OR DRINK SOLELY BECAUSE HE IS A NEGRO.  THE
PARKING BUILDING IS OWNED AND OPERATED BY THE WILMINGTON PARKING
AUTHORITY, AN AGENCY OF THE STATE OF DELAWARE, AND THE RESTAURANT IS
THE AUTHORITY'S LESSEE.  APPELLANT CLAIMS THAT SUCH REFUSAL ABRIDGES
HIS RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.  THE SUPREME COURT OF
DELAWARE HAS HELD THAT EAGLE WAS ACTING IN "A PURELY PRIVATE CAPACITY"
UNDER ITS LEASE; THAT ITS ACTION WAS NOT THAT OF THE AUTHORITY AND WAS
NOT, THEREFORE, STATE ACTION WITHIN THE CONTEMPLATION OF THE
PROHIBITIONS CONTAINED IN THAT AMENDMENT.  IT ALSO HELD THAT UNDER 24
DEL. CODE, SEC. 1505, (FN1) EAGLE WAS A RESTAURANT, NOT AN INN, AND
THAT AS SUCH IT "IS NOT REQUIRED UNDER DELAWARE LAW TO SERVE ANY AND
ALL PERSONS ENTERING ITS PLACE OF BUSINESS."  - DEL. - , - , 157 A.2D
894, 902 (1960).  ON APPEAL HERE FROM THE JUDGMENT AS HAVING BEEN BASED
UPON A STATUTE CONSTRUED UNCONSTITUTIONALLY, WE POSTPONED CONSIDERATION
OF THE QUESTION OF JURISDICTION UNDER 28 U.S.C. SEC. 1257(2) TO THE
HEARING ON THE MERITS.  364 U.S. 810.  WE AGREE WITH THE RESPONDENTS
THAT THE APPEAL SHOULD BE DISMISSED AND ACCORDINGLY THE MOTION TO
DISMISS IS GRANTED.  HOWEVER, SINCE THE ACTION OF EAGLE IN EXCLUDING
APPELLANT RAISES AN IMPORTANT CONSTITUTIONAL QUESTION, THE PAPERS
WHEREON THE APPEAL WAS TAKEN ARE TREATED AS A PETITION FOR A WRIT OF
CERTIORARI, 28 U.S.C. SEC. 2103, AND THE WRIT IS GRANTED.  28 U.S.C.
SEC. 1257(3).  ON THE MERITS WE HAVE CONCLUDED THAT THE EXCLUSION OF
APPELLANT UNDER THE CIRCUMSTANCES SHOWN TO BE PRESENT HERE WAS
DISCRIMINATORY STATE ACTION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT. 

THE AUTHORITY WAS CREATED BY THE CITY OF WILMINGTON PURSUANT TO 22
DEL. CODE, SECS. 501-515.  IT IS "A PUBLIC BODY CORPORATE AND POLITIC,
EXERCISING PUBLIC POWERS OF THE STATE AS AN AGENCY THEREOF."  SEC.
504.  ITS STATUTORY PURPOSE IS TO PROVIDE ADEQUATE PARKING FACILITIES
FOR THE CONVENIENCE OF THE PUBLIC AND THEREBY RELIEVE THE "PARKING
CRISIS, WHICH THREATENS THE WELFARE OF THE COMMUNITY  ...  ."  SEC.
501(7), (8) AND (9).  TO THIS END THE AUTHORITY IS GRANTED WIDE POWERS
INCLUDING THAT OF CONSTRUCTING OR ACQUIRING BY LEASE, PURCHASE OR
CONDEMNATION, LANDS AND FACILITIES, AND THAT OF LEASING "PORTIONS OF
ANY OF ITS GARAGE BUILDINGS OR STRUCTURES FOR COMMERCIAL USE BY THE
LESSEE, WHERE, IN THE OPINION OF THE AUTHORITY, SUCH LEASING IS
NECESSARY AND FEASIBLE FOR THE FINANCING AND OPERATION OF SUCH
FACILITIES."  SEC. 504(A).  THE ACT PROVIDES THAT THE RATES AND CHARGES
FOR ITS FACILITIES MUST BE REASONABLE AND ARE TO BE DETERMINED
EXCLUSIVELY BY THE AUTHORITY "FOR THE PURPOSES OF PROVIDING FOR THE
PAYMENT OF THE EXPENSES OF THE AUTHORITY, THE CONSTRUCTION,
IMPROVEMENT, REPAIR, MAINTENANCE, AND OPERATION OF ITS FACILITIES AND
PROPERTIES, THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON ITS
OBLIGATIONS, AND TO FULFILL THE TERMS AND PROVISIONS OF ANY AGREEMENTS
MADE WITH THE PURCHASERS OR HOLDERS OF ANY SUCH OBLIGATIONS OR WITH THE
CITY."  SEC. 504(B)(8).  THE AUTHORITY HAS NO POWER TO PLEDGE THE
CREDIT OF THE STATE OF DELAWARE BUT MAY ISSUE ITS OWN REVENUE BONDS
WHICH ARE TAX EXEMPT.  ANY AND ALL PROPERTY OWNED OR USED BY THE
AUTHORITY IS LIKEWISE EXEMPT FROM STATE TAXATION. 

THE FIRST PROJECT UNDERTAKEN BY THE AUTHORITY WAS THE ERECTION OF A
PARKING FACILITY ON NINTH STREET IN DOWNTOWN WILMINGTON.  THE TRACT
CONSISTED OF FOUR PARCELS, ALL OF WHICH WERE ACQUIRED BY NEGOTIATED
PURCHASES FROM PRIVATE OWNERS.  THREE WERE PAID FOR IN CASH, BORROWED
FROM EQUITABLE SECURITY TRUST COMPANY, AND THE FOURTH, PURCHASED FROM
DIAMOND ICE AND COAL COMPANY, WAS PAID FOR "PARTLY IN REVENUE BONDS OF
THE AUTHORITY AND PARTLY IN CASH ($934,000) DONATED BY THE CITY OF
WILMINGTON, PURSUANT TO 22 DEL. C.C. 5  ...  .  SUBSEQUENTLY, THE CITY
OF WILMINGTON GAVE THE AUTHORITY $1,822,827.69 WHICH SUM THE AUTHORITY
APPLIED TO THE REDEMPTION OF THE REVENUE BONDS DELIVERED TO DIAMOND ICE
& COAL CO. AND TO THE REPAYMENT OF THE EQUITABLE SECURITY TRUST COMPANY
LOAN." 

BEFORE IT BEGAN ACTUAL CONSTRUCTION OF THE FACILITY, THE AUTHORITY
WAS ADVISED BY ITS RETAINED EXPERTS THAT THE ANTICIPATED REVENUE FROM
THE PARKING OF CARS AND PROCEEDS FROM SALE OF ITS BONDS WOULD NOT BE
SUFFICIENT TO FINANCE THE CONSTRUCTION COSTS OF THE FACILITY. 
MOREOVER, THE BONDS WERE NOT EXPECTED TO BE MARKETABLE IF PAYABLE
SOLELY OUT OF PARKING REVENUES.  TO SECURE ADDITIONAL CAPITAL NEEDED
FOR ITS "DEBT-SERVICE" REQUIREMENTS, AND THEREBY TO MAKE BOND FINANCING
PRACTICABLE, THE AUTHORITY DECIDED IT WAS NECESSARY TO ENTER LONG-TERM
LEASES WITH RESPONSIBLE TENANTS FOR COMMERCIAL USE OF SOME OF THE SPACE
AVAILABLE IN THE PROJECTED "GARAGE BUILDING."  THE PUBLIC WAS INVITED
TO BID FOR THESE LEASES. 

IN APRIL 1957 SUCH A PRIVATE LEASE, FOR 20 YEARS AND RENEWABLE FOR
ANOTHER 10 YEARS, WAS MADE WITH EAGLE COFFEE SHOPPE, INC., FOR USE AS A
"RESTAURANT, DINING ROOM, BANQUET HALL, COCKTAIL LOUNGE AND BAR AND FOR
NO OTHER USE AND PURPOSE."  THE MULTI-LEVEL SPACE OF THE BUILDING WHICH
WAS LET TO EAGLE, ALTHOUGH "WITHIN THE EXTERIOR WALLS OF THE STRUCTURE,
HAS NO MARKED PUBLIC ENTRANCE LEADING FROM THE PARKING PORTION OF THE
FACILITY INTO THE RESTAURANT PROPER  ...  WHOSE MAIN ENTRANCE IS
LOCATED ON NINTH STREET."  - DEL., AT - , 157 A.2D, AT 899.  IN ITS
LEASE THE AUTHORITY CONVENANTED TO COMPLETE CONSTRUCTION EXPEDITIOUSLY,
INCLUDING COMPLETION OF "THE DECORATIVE FINISHING OF THE LEASED
PREMISES AND UTILITIES THEREFORE, WITHOUT COST TO LESSEE," INCLUDING
NECESSARY UTILITY CONNECTIONS, TOILETS, HUNG ACOUSTICAL TILE AND
PLASTER CEILINGS; VINYL ASBESTOS, CERAMIC TILE AND CONCRETE FLOORS;
CONNECTING STAIRS AND WROUGHT IRON RAILINGS; AND WOOD-FLOORED SHOW
WINDOWS.  EAGLE SPENT SOME $220,000 TO MAKE THE SPACE SUITABLE FOR ITS
OPERATION AND, TO THE EXTENT SUCH IMPROVEMENTS WERE SO ATTACHED TO
REALTY AS TO BECOME PART THEREOF, EAGLE TO THE SAME EXTENT ENJOYS THE
AUTHORITY'S TAX EXEMPTION. 

THE AUTHORITY FURTHER AGREED TO FURNISH HEAT FOR EAGLE'S PREMISES,
GAS SERVICE FOR THE BOILER ROOM, AND TO MAKE, AT ITS OWN EXPENSE, ALL
NECESSARY STRUCTURAL REPAIRS, ALL REPAIRS TO EXTERIOR SURFACES EXCEPT
STORE FRONTS AND ANY REPAIRS CAUSED BY LESSEE'S OWN ACT OR NEGLECT. 
THE AUTHORITY RETAINED THE RIGHT TO PLACE ANY DIRECTIONAL SIGNS ON THE
EXTERIOR OF THE LET SPACE WHICH WOULD NOT INTERFERE WITH OR OBSCURE
EAGLE'S DISPLAY SIGNS.  AGREEING TO PAY AN ANNUAL RENTAL OF $28,700,
EAGLE COVENANTED TO "OCCUPY AND USE THE LEASED PREMISES IN ACCORDANCE
WITH ALL APPLICABLE LAWS, STATUTES, ORDINANCES AND RULES AND
REGULATIONS OF ANY FEDERAL, STATE OR MUNICIPAL AUTHORITY."  ITS LEASE,
HOWEVER, CONTAINS NO REQUIREMENT THAT ITS RESTAURANT SERVICES BE MADE
AVAILABLE TO THE GENERAL PUBLIC ON A NONDISCRIMINATORY BASIS, IN SPITE
OF THE FACT THAT THE AUTHORITY HAS POWER TO ADOPT RULES AND REGULATIONS
RESPECTING THE USE OF ITS FACILITIES EXCEPT ANY AS WOULD IMPAIR THE
SECURITY OF ITS BONDHOLDERS.  SEC. 511. 

OTHER PORTIONS OF THE STRUCTURE WERE LEASED TO OTHER TENANTS,
INCLUDING A BOOKSTORE, A RETAIL JEWELER, AND A FOOD STORE.  UPON
COMPLETION OF THE BUILDING, THE AUTHORITY LOCATED AT APPROPRIATE PLACES
THEREON OFFICIAL SIGNS INDICATING THE PUBLIC CHARACTER OF THE BUILDING,
AND FLEW FROM MASTHEADS ON THE ROOF BOTH THE STATE AND NATIONAL FLAGS. 

IN AUGUST 1958 APPELLANT PARKED HIS CAR IN THE BUILDING AND WALKED
AROUND TO ENTER THE RESTAURANT BY ITS FRONT DOOR ON NINTH STREET. 
HAVING ENTERED AND SOUGHT SERVICE, HE WAS REFUSED IT. THEREAFTER HE
FILED THIS DECLARATORY JUDGMENT ACTION IN THE COURT OF CHANCERY.  ON
MOTIONS FOR SUMMARY JUDGMENT, BASED ON THE PLEADINGS AND AFFIDAVITS,
THE CHANCELLOR CONCLUDED, CONTRARY TO THE CONTENTIONS OF RESPONDENTS,
THAT WHETHER IN FACT THE LEASE WAS A "DEVICE" OR WAS EXECUTED IN GOOD
FAITH, IT WOULD NOT "SERVE TO INSULATE THE PUBLIC AUTHORITY FROM THE
FORCE AND EFFECT OF THE FOURTEENTH AMENDMENT."  150 A.2D 197, 198.  HE
FOUND IT NOT NECESSARY, THEREFORE, TO PASS UPON THE RIGHTS OF PRIVATE
RESTAURATEURS UNDER STATE COMMON AND STATUTORY LAW, INCLUDING 24 DEL.
CODE SEC. 1501.  THE SUPREME COURT OF DELAWARE REVERSED, AS WE
MENTIONED ABOVE, HOLDING THAT EAGLE "IN THE CONDUCT OF ITS BUSINESS, IS
ACTING IN A PURELY PRIVATE CAPACITY."  IT, THEREFORE, DENIED
APPELLANT'S CLAIM UNDER THE FOURTEENTH AMENDMENT.  UPON REACHING THE
APPLICATION OF STATE LAW, IT HELD, CONTRARY TO APPELLANT'S ASSERTION
THAT EAGLE MAINTAINED AN INN, THAT EAGLE'S OPERATION WAS "PRIMARILY A
RESTAURANT AND THUS SUBJECT TO THE PROVISIONS OF 24 DEL. C. SEC. 1501,
WHICH DOES NOT COMPEL THE OPERATOR OF A RESTAURANT TO GIVE SERVICE TO
ALL PERSONS SEEKING SUCH."  - DEL., AT - , 157 A.2D, AT 902. 
DELAWARE'S HIGHEST COURT HAS THUS DENIED THE EQUAL PROTECTION CLAIM OF
THE APPELLANT AS WELL AS HIS STATE-LAW CONTENTION CONCERNING THE
APPLICABILITY OF SEC. 1501. 

ON THE JURISDICTIONAL QUESTION, WE AGREE THAT THE JUDGMENT OF
DELAWARE'S COURT DOES NOT DEPEND FOR ITS ULTIMATE SUPPORT UPON A
DETERMINATION OF THE CONSTITUTIONAL VALIDITY OF A STATE STATUTE, BUT
RATHER UPON THE HOLDING THAT ON THE FACTS EAGLE'S RACIALLY
DISCRIMINATORY ACTION WAS EXERCISED IN "A PURELY PRIVATE CAPACITY" AND
THAT IT WAS, THEREFORE, BEYOND THE PROHIBITIVE SCOPE OF THE FOURTEENTH
AMENDMENT. 

THE CIVIL RIGHTS CASES, 109 U.S. 3 (1883), "EMBEDDED IN OUR
CONSTITUTIONAL LAW" THE PRINCIPLE "THAT THE ACTION INHIBITED BY THE
FIRST SECTION (EQUAL PROTECTION CLAUSE) 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."  CHIEF JUSTICE VINSON IN SHELLEY V.
KRAEMER, 334 U.S. 1, 13 (1948).  IT WAS LANGUAGE IN THE OPINION IN THE
CIVIL RIGHTS CASES, SUPRA, THAT PHRASED THE BROAD TEST OF STATE
RESPONSIBILITY UNDER THE FOURTEENTH AMENDMENT, PREDICTING ITS
CONSEQUENCE UPON "STATE ACTION OF EVERY KIND  ...  WHICH DENIES  ...
THE EQUAL PROTECTION OF THE LAWS."  AT P. 11.  AND ONLY TWO TERMS AGO,
SOME 75 YEARS LATER, THE SAME CONCEPT OF STATE RESPONSIBILITY WAS
INTERPRETED AS NECESSARILY FOLLOWING UPON "STATE PARTICIPATION THROUGH
ANY ARRANGEMENT, MANAGEMENT, FUNDS OR PROPERTY."  COOPER V. AARON, 358
U.S. 1, 4 (1958).  IT IS CLEAR, AS IT ALWAYS HAS BEEN SINCE THE CIVIL
RIGHTS CASES, SUPRA, THAT "INDIVIDUAL INVASION OF INDIVIDUAL RIGHTS IS
NOT THE SUBJECT-MATTER OF THE AMENDMENT," AT P. 11, AND THAT PRIVATE
CONDUCT ABRIDGING INDIVIDUAL RIGHTS DOES NO VIOLENCE TO THE EQUAL
PROTECTION CLAUSE UNLESS TO SOME SIGNIFICANT EXTEND THE STATE IN ANY OF
ITS MANIFESTATIONS HAS BEEN FOUND TO HAVE BECOME INVOLVED IN IT.
BECAUSE THE VIRTUE OF THE RIGHT TO EQUAL PROTECTION OF THE LAWS COULD
LIE ONLY IN THE BREADTH OF ITS APPLICATION, ITS CONSTITUTIONAL
ASSURANCE WAS RESERVED IN TERMS WHOSE IMPRECISION WAS NECESSARY IF THE
RIGHT WERE TO BE ENJOYED IN THE VARIETY OF INDIVIDUAL-STATE
RELATIONSHIPS WHICH THE AMENDMENT WAS DESIGNED TO EMBRACE.  FOR THE
SAME REASON, TO FASHION AND APPLY A PRECISE FORMULA FOR RECOGNITION OF
STATE RESPONSIBILITY UNDER THE EQUAL PROTECTION CLAUSE IS AN
"IMPOSSIBLE TASK" WHICH "THIS COURT HAS NEVER ATTEMPTED."  KOTCH V.
PILOT COMM'RS, 330 U.S. 552, 556.  ONLY BY SIFTING FACTS AND WEIGHING
CIRCUMSTANCES CAN THE NONOBVIOUS INVOLVEMENT OF THE STATE IN PRIVATE
CONDUCT BE ATTRIBUTED ITS TRUE SIGNIFICANCE. 

THE TRIAL COURT'S DISPOSAL OF THE ISSUES ON SUMMARY JUDGMENT HAS
RESULTED IN A RATHER INCOMPLETE RECORD, BUT THE OPINION OF THE SUPREME
COURT AS WELL AS THAT OF THE CHANCELLOR PRESENTS THE FACTS IN
SUFFICIENT DETAIL FOR US TO DETERMINE THE DEGREE OF STATE PARTICIPATION
IN EAGLE'S REFUSAL TO SERVE PETITIONER.  IN THIS CONNECTION THE
DELAWARE SUPREME COURT SEEMS TO HAVE PLACED CONTROLLING EMPHASIS ON ITS
CONCLUSION, AS TO THE ACCURACY OF WHICH THERE IS DOUBT, THAT ONLY SOME
15% OF THE TOTAL COST OF THE FACILITY WAS "ADVANCED" FROM PUBLIC FUNDS;
THAT THE COST OF THE ENTIRE FACILITY WAS ALLOCATED THREE-FIFTHS TO THE
SPACE FOR COMMERCIAL LEASING AND TWO-FIFTHS TO PARKING SPACE; THAT
ANTICIPATED REVENUE FROM PARKING WAS ONLY SOME 30.5% OF THE TOTAL
INCOME, THE BALANCE OF WHICH WAS EXPECTED TO BE EARNED BY THE LEASING;
THAT THE AUTHORITY HAD NO ORIGINAL INTENT TO PLACE A RESTAURANT IN THE
BUILDING, IT BEING ONLY A HAPPENSTANCE RESULTING FROM THE BIDDING; THAT
EAGLE EXPENDED CONSIDERABLE MONEYS ON FURNISHINGS; THAT THE
RESTAURANT'S MAIN AND MARKED PUBLIC ENTRANCE IS ON NINTH STREET WITHOUT
ANY PUBLIC ENTRANCE DIRECT FROM THE PARKING AREA; AND THAT "THE ONLY
CONNECTION EAGLE HAS WITH THE PUBLIC FACILITY  ...  IS THE FURNISHING
OF THE SUM OF $28,700 ANNUALLY IN THE FORM OF RENT WHICH IS USED BY THE
AUTHORITY TO DEFRAY A PORTION OF THE OPERATING EXPENSE OF AN OTHERWISE
UNPROFITABLE ENTERPRISE."  - DEL. - , - , 157 A.2D 894, 901.  WHILE
THESE FACTUAL CONSIDERATIONS ARE INDEED VALIDLY ACCOUNTABLE ASPECTS OF
THE ENTERPRISE UPON WHICH THE STATE HAS EMBARKED, WE CANNOT SAY THAT
THEY LEAD INESCAPABLY TO THE CONCLUSION THAT STATE ACTION IS NOT
PRESENT.  THEIR PERSUASIVENESS IS DIMINISHED WHEN EVALUATED IN THE
CONTEXT OF OTHER FACTORS WHICH MUST BE ACKNOWLEDGED.    THE LAND AND
BUILDING WERE PUBLICLY OWNED.  AS AN ENTITY, THE BUILDING WAS DEDICATED
TO "PUBLIC USES" IN PERFORMANCE OF THE AUTHORITY'S "ESSENTIAL
GOVERNMENTAL FUNCTIONS."  22 DEL.  CODE, SECS. 501, 514.  THE COSTS OF
LAND ACQUISITION, CONSTRUCTION, AND MAINTENANCE ARE DEFRAYED ENTIRELY
FROM DONATIONS BY THE CITY OF WILMINGTON, FROM LOANS AND REVENUE BONDS
AND FROM THE PROCEEDS OF RENTALS AND PARKING SERVICES OUT OF WHICH THE
LOANS AND BONDS WERE PAYABLE.  ASSUMING THAT THE DISTINCTION WOULD BE
SIGNIFICANT, CF. DERRINGTON V. PLUMMER, 240 F.2D 922, 925, THE
COMMERCIALLY LEASED AREAS WERE NOT SURPLUS STATE PROPERTY, BUT
CONSTITUTED A PHYSICALLY AND FINANCIALLY INTEGRAL AND, INDEED,
INDISPENSABLE PART OF THE STATE'S PLAN TO OPERATE ITS PROJECT AS A SELF
SUSTAINING UNIT.  UPKEEP AND MAINTENANCE OF THE BUILDING, INCLUDING
NECESSARY REPAIRS, WERE RESPONSIBILITIES OF THE AUTHORITY AND WERE
PAYABLE OUT OF PUBLIC FUNDS.  IT CANNOT BE DOUBTED THAT THE PECULIAR
RELATIONSHIP OF THE RESTAURANT TO THE PARKING FACILITY IN WHICH IT IS
LOCATED CONFERS ON EACH AN INCIDENTAL VARIETY OF MUTUAL BENEFITS. 
GUESTS OF THE RESTAURANT ARE AFFORDED A CONVENIENT PLACE TO PARK THEIR
AUTOMOBILES, EVEN IF THEY CANNOT ENTER THE RESTAURANT DIRECTLY FROM THE
PARKING AREA.  SIMILARLY, ITS CONVENIENCE FOR DINERS MAY WELL PROVIDE
ADDITIONAL DEMAND FOR THE AUTHORITY'S PARKING FACILITIES.  SHOULD ANY
IMPROVEMENTS EFFECTED IN THE LEASEHOLD BY EAGLE BECOME PART OF THE
REALTY, THERE IS NO POSSIBILITY OF INCREASED TAXES BEING PASSED ON TO
IT SINCE THE FEE IS HELD BY A TAX-EXEMPT GOVERNMENT AGENCY.  NEITHER
CAN IT BE IGNORED, ESPECIALLY IN VIEW OF EAGLE'S AFFIRMATIVE ALLEGATION
THAT FOR IT TO SERVE NEGROES WOULD INJURE ITS BUSINESS, THAT PROFITS
EARNED BY DISCRIMINATION NOT ONLY CONTRIBUTE TO, BUT ALSO ARE
INDISPENSABLE ELEMENTS IN, THE FINANCIAL SUCCESS OF A GOVERNMENTAL
AGENCY. 

ADDITION OF ALL THESE ACTIVITIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE AUTHORITY, THE BENEFITS MUTUALLY CONFERRED, TOGETHER WITH THE
OBVIOUS FACT THAT THE RESTAURANT IS OPERATED AS AN INTEGRAL PART OF A
PUBLIC BUILDING DEVOTED TO A PUBLIC PARKING SERVICE, INDICATES THAT
DEGREE OF STATE PARTICIPATION AND INVOLVEMENT IN DISCRIMINATORY ACTION
WHICH IT WAS THE DESIGN OF THE FOURTEENTH AMENDMENT TO CONDEMN.  IT IS
IRONY AMOUNTING TO GRAVE INJUSTICE THAT IN ONE PART OF A SINGLE
BUILDING, ERECTED AND MAINTAINED WITH PUBLIC FUNDS BY AN AGENCY OF THE
STATE TO SERVE A PUBLIC PURPOSE, ALL PERSONS HAVE EQUAL RIGHTS, WHILE
IN ANOTHER PORTION, ALSO SERVING THE PUBLIC, A NEGRO IS A SECOND-CLASS
CITIZEN, OFFENSIVE BECAUSE OF HIS RACE, WITHOUT RIGHTS AND UNENTITLED
TO SERVICE, BUT AT THE SAME TIME FULLY ENJOYS EQUAL ACCESS TO NEARBY
RESTAURANTS IN WHOLLY PRIVATELY OWNED BUILDINGS.  AS THE CHANCELLOR
POINTED OUT, IN ITS LEASE WITH EAGLE THE AUTHORITY COULD HAVE
AFFIRMATIVELY REQUIRED EAGLE TO DISCHARGE THE RESPONSIBILITIES UNDER
THE FOURTEENTH AMENDMENTT IMPOSED UPON THE PRIVATE ENTERPRISE AS A
CONSEQUENCE OF STATE PARTICIPATION.  BUT NO STATE MAY EFFECTIVELY
ABDICATE ITS RESPONSIBILITIES BY EITHER IGNORING THEM OR BY MERELY
FAILING TO DISCHARGE THEM WHATEVER THE MOTIVE MAY BE.  IT IS OF NO
CONSOLATION TO AN INDIVIDUAL DENIED THE EQUAL PROTECTION OF THE LAWS
THAT IT WAS DONE IN GOOD FAITH.  CERTAINLY THE CONCLUSIONS DRAWN IN
SIMILAR CASES BY THE VARIOUS COURTS OF APPEALS DO NOT DEPEND UPON SUCH
A DISTINCTION.  (FN2)  BY ITS INACTION, THE AUTHORITY, AND THROUGH IT
THE STATE, HAS NOT ONLY MADE ITSELF A PARTY TO THE REFUSAL OF SERVICE,
BUT HAS ELECTED TO PLACE ITS POWER, PROPERTY AND PRESTIGE BEHIND THE
ADMITTED DISCRIMINATION.  THE STATE HAS SO FAR INSINUATED ITSELF INTO A
POSITION OF INTERDEPENDENCE WITH EAGLE THAT IT MUST BE RECOGNIZED AS A
JOINT PARTICIPANT IN THE CHALLENGED ACTIVITY, WHICH, ON THAT ACCOUNT,
CANNOT BE CONSIDERED TO HAVE BEEN SO "PURELY PRIVATE" AS TO FALL
WITHOUT THE SCOPE OF THE FOURTEENTH AMENDMENT. 

BECAUSE READILY APPLICABLE FORMULAE MAY NOT BE FASHIONED, THE
CONCLUSIONS DRAWN FROM THE FACTS AND CIRCUMSTANCES OF THIS RECORD ARE
BY NO MEANS DECLARED AS UNIVERSAL TRUTHS ON THE BASIS OF WHICH EVERY
STATE LEASING AGREEMENT IS TO BE TESTED.  OWING TO THE VERY "LARGENESS"
OF GOVERNMENT, A MULTITUDE OF RELATIONSHIPS MIGHT APPEAR TO SOME TO
FALL WITHIN THE AMENDMENT'S EMBRACE, BUT THAT, IT MUST BE REMEMBERED,
CAN BE DETERMINED ONLY IN THE FRAMEWORK OF THE PECULIAR FACTS OR
CIRCUMSTANCES PRESENT.  THEREFORE RESPONDENTS' PROPHECY OF NIGH
UNIVERSAL APPLICATION OF A CONSTITUTIONAL PRECEPT SO PECULIARLY
DEPENDENT FOR ITS INVOCATION UPON APPROPRIATE FACTS FAILS TO TAKE INTO
ACCOUNT "DIFFERENCES IN CIRCUMSTANCES WHICH BEGET APPROPRIATE
DIFFERENCES IN LAW," WHITNEY V. TAX COMM'N, 309 U.S. 530, 542. 
SPECIFICALLY DEFINING THE LIMITS OF OUR INQUIRY, WHAT WE HOLD TODAY IS
THAT WHEN A STATE LEASES PUBLIC PROPERTY IN THE MANNER AND FOR THE
PURPOSE SHOWN TO HAVE BEEN THE CASE HERE, THE PROSCRIPTIONS OF THE
FOURTEENTH AMENDMENT MUST BE COMPLIED WITH BY THE LESSEE AS CERTAINLY
AS THOUGH THEY WERE BINDING COVENANTS WRITTEN INTO THE AGREEMENT
ITSELF. 

THE JUDGMENT OF THE SUPREME COURT OF DELAWARE IS REVERSED AND THE
CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  THE STATUTE PROVIDES THAT:  "NO KEEPER OF AN INN, TAVERN, HOTEL,
OR RESTAURANT, OR OTHER PLACE OF PUBLIC ENTERTAINMENT OR REFRESHMENT OF
TRAVELERS, GUESTS, OR CUSTOMERS SHALL BE OBLIGED, BY LAW, TO FURNISH
ENTERTAINMENT OR REFRESHMENT TO PERSONS WHOSE RECEPTION OR
ENTERTAINMENT BY HIM WOULD BE OFFENSIVE TO THE MAJOR PART OF HIS
CUSTOMERS, AND WOULD INJURE HIS BUSINESS.  AS USED IN THIS SECTION,
'CUSTOMERS' INCLUDES ALL WHO HAVE OCCASION FOR ENTERTAINMENT OR
REFRESHMENT." 

FN2  SEE AARON V. COOPER, 261 F.2D 97 (C.A. 8TH CIR.); CITY OF
GREENSBORO V. SIMKINS, 246 F.2D 425 (C.A. 4TH CIR.), AFFIRMING 149 F.
SUPP. 562 (D.C.M.D.N.C.); DERRINGTON V. PLUMMER, 240 F.2D 922 (C.A. 5TH
CIR.); COKE V. CITY OF ATLANTA, 184 F. SUPP. 579 (D.C.N.D. GA.); JONES
V. MARVA THEATRES, 180 F. SUPP. 49 (D.C.D. MD.); TATE V. DEPARTMENT OF
CONSERVATION, 133 F. SUPP. 53 (D.C.E.D. VA.), AFF'D, 231 F.2D 615 (C.A.
4TH CIR.); NASH V. AIR TERMINAL SERVICES, 85 F. SUPP. 545 (D.C.E.D.
VA.); LAWRENCE V. HANCOCK, 76 F. SUPP. 1004, (D.C.S.D. W.VA.); AND SEE
MUIR V. LOUISVILLE PARK THEATRICAL ASSN., 347 U.S. 971, VACATING AND
REMANDING 202 F.2D 275 (C.A. 6TH CIR.). 

MR. JUSTICE STEWART, CONCURRING. 

I AGREE THAT THE JUDGMENT MUST BE REVERSED, BUT I REACH THAT
CONCLUSION BY A ROUTE MUCH MORE DIRECT THAN THE ONE TRAVELED BY THE
COURT.  IN UPHOLDING EAGLE'S RIGHT TO DENY SERVICE TO THE APPELLANT
SOLELY BECAUSE OF HIS RACE, THE SUPREME COURT OF DELAWARE RELIED UPON A
STATUTE OF THAT STATE WHICH PERMITS THE PROPRIETOR OF A RESTAURANT TO
REFUSE TO SERVE "PERSONS WHOSE RECEPTION OR ENTERTAINMENT BY HIM WOULD
BE OFFENSIVE TO THE MAJOR PART OF HIS CUSTOMERS  ...  ."*  THERE IS NO
SUGGESTION IN THE RECORD THAT THE APPELLANT AS AN INDIVIDUAL WAS SUCH A
PERSON.  THE HIGHEST COURT OF DELAWARE HAS THUS CONSTRUED THIS
LEGISLATIVE ENACTMENT AS AUTHORIZING DISCRIMINATORY CLASSIFICATION
BASED EXCLUSIVELY ON COLOR.  SUCH A LAW SEEMS TO ME CLEARLY VIOLATIVE
OF THE FOURTEENTH AMENDMENT.  I THINK, THEREFORE, THAT THE APPEAL WAS
PROPERLY TAKEN, AND THAT THE STATUTE, AS AUTHORITATIVELY CONSTRUED BY
THE SUPREME COURT OF DELAWARE IS CONSTITUTIONALLY INVALID. 

*24 DEL. CODE, SEC. 1501.  THE COMPLETE TEXT OF THE STATUTE IS SET
OUT IN THE COURT OPINION AT NOTE 1. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

ACCORDING TO MY BROTHER STEWART, THE SUPREME COURT OF DELAWARE HAS
HELD THAT ONE OF ITS STATUTES, 24 DEL. CODE, SEC. 1501, SANCTIONS A
RESTAURATEUR DENYING SERVICE TO A PERSON SOLELY BECAUSE OF HIS COLOR. 
IF MY BROTHER IS CORRECT IN SO READING THE DECISION OF THE DELAWARE
SUPREME COURT, HIS CONCLUSION INEVITABLY FOLLOWS.  FOR A STATE TO PLACE
ITS AUTHORITY BEHIND DISCRIMINATORY TREATMENT BASED SOLELY ON COLOR IS
INDUBITABLY A DENIAL OF A STATE OF THE EQUAL PROTECTION OF THE LAWS, IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  MY BROTHER HARLAN ALSO WOULD
FIND THE CLAIM OF INVALIDITY OF THE STATUTE DECISIVE IF HE COULD READ
THE STATE COURT'S CONSTRUCTION OF IT AS OUR BROTHER STEWART READS IT.
BUT FOR HIM THE STATE COURT'S VIEW OF ITS STATUTE IS SO AMBIGUOUS THAT
HE DEEMS IT NECESSARY TO SECURE A CLARIFICATION FROM THE STATE COURT OF
HOW IN FACT IT DID CONSTRUE THE STATUTE. 

I CERTAINLY DO NOT FIND THE CLARITY THAT MY BROTHER STEWART FINDS IN
THE VIEWS EXPRESSED BY THE SUPREME COURT OF DELAWARE REGARDING 24 DEL.
CODE, SEC. 1501.  IF I WERE FORCED TO CONSTRUE THAT COURT'S
CONSTRUCTION, I SHOULD FIND THE BALANCE OF CONSIDERATIONS LEADING TO
THE OPPOSITE CONCLUSION FROM HIS, NAMELY, THAT IT WAS MERELY
DECLARATORY OF THE COMMON LAW AND DID NOT GIVE STATE SANCTION TO
REFUSING SERVICE TO A PERSON MERELY BECAUSE HE IS COLORED.  THE COURT
TAKES NO POSITION REGARDING THE STATUTORY MEANING WHICH DIVIDES MY
BROTHERS HARLAN AND STEWART.  CLEARLY IT DOES NOT TAKE MR. JUSTICE
STEWART'S VIEW OF WHAT THE SUPREME COURT OF DELAWARE DECIDED.  IF IT
DID, IT WOULD UNDOUBTEDLY TAKE HIS EASY ROUTE TO DECISION AND NOT REACH
THE SAME RESULT BY ITS MUCH MORE CIRCUITOUS ROUTE. 

SINCE THE PRONOUNCEMENT OF THE SUPREME COURT OF DELAWARE THUS LENDS
ITSELF TO THREE VIEWS, NONE OF WHICH IS PATENTLY IRRATIONAL, WHY IS NOT
MY BROTHER HARLAN'S SUGGESTION FOR SOLVING THIS CONFLICT THE MOST
APPROPRIATE SOLUTION?  WERE WE TO BE DULY ADVISED BY THE SUPREME COURT
OF DELAWARE THAT MR. JUSTICE STEWART IS CORRECT IN HIS READING OF WHAT
IT SAID, THERE WOULD BE AN EASY END TO OUR PROBLEM.  THERE WOULD BE NO
NEED FOR RESOLVING THE PROBLEMS IN STATE-FEDERAL RELATIONS WITH WHICH
THE COURT'S OPINION DEALS.  IF, ON THE OTHER HAND, THE DELAWARE COURT
DID NOT MEAN TO GIVE SUCH AN INVALIDATING CONSTRUCTION TO ITS STATUTE,
WE WOULD BE CONFRONTED WITH THE PROBLEMS WHICH THE COURT NOW ENTERTAINS
FOR DECISION, UNEMBARRASSED BY DISREGARD OF A SIMPLER ISSUE.  THIS
WOULD INVOLVE SOME DELAY IN ADJUDICATION.  BUT THE TIME WOULD BE WELL
SPENT, BECAUSE THE COURT WOULD NOT BE DECIDING SERIOUS QUESTIONS OF
CONSTITUTIONAL LAW ANY EARLIER THAN DUE REGARD FOR THE APPROPRIATE
PROCESS OF CONSTITUTIONAL ADJUDICATION REQUIRES. 

ACCORDINGLY, I JOIN IN MR. JUSTICE HARLAN'S PROPOSED DISPOSITION OF
THE CASE WITHOUT INTIMATING ANY VIEW REGARDING THE QUESTION,
PREMATURELY CONSIDERED BY THE COURT, AS TO WHAT CONSTITUTES STATE
ACTION. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITTAKER JOINS, DISSENTING. 

THE COURT'S OPINION, BY A PROCESS OF FIRST UNDISCRIMINATINGLY
THROWING TOGETHER VARIOUS FACTUAL BITS AND PIECES AND THEN UNDERMINING
THE RESULTING STRUCTURE BY AN EQUALLY VAGUE DISCLAIMER, SEEMS TO ME TO
LEAVE COMPLETELY AT SEA JUST WHAT IT IS IN THIS RECORD THAT SATISFIES
THE REQUIREMENT OF "STATE ACTION." 

I FIND IT UNNECESSARY, HOWEVER, TO INQUIRE INTO THE MATTER AT THIS
STAGE, FOR IT SEEMS TO ME APPARENT THAT BEFORE PASSING ON THE FAR
REACHING CONSTITUTIONAL QUESTIONS THAT MAY, OR MAY NOT, BE LURKING IN
THIS JUDGMENT, THE CASE SHOULD FIRST BE SENT BACK TO THE STATE COURT
FOR CLARIFICATION AS TO THE PRECISE BASIS OF ITS DECISION.  IN DECIDING
THIS CASE THE DELAWARE SUPREME COURT, AMONG OTHER THINGS, SAID: 

"IT (EAGLE) ACTS AS A RESTAURANT KEEPER AND, AS SUCH, IS NOT REQUIRED
TO SERVE ANY AND ALL PERSONS ENTERING ITS PLACE OF BUSINESS, ANY MORE
THAN THE OPERATOR OF A BOOKSTORE, BARBER SHOP, OR OTHER RETAIL BUSINESS
IS REQUIRED TO SELL ITS PRODUCT TO EVERY ONE.  THIS IS THE COMMON LAW,
AND THE LAW OF DELAWARE AS RESTATED IN 24 DEL. C. SEC. 1501 WITH
RESPECT TO RESTAURANT KEEPERS.  10 AM. JUR., CIVIL RIGHTS, SECS. 21,
22; 52 AM. JUR., THEATRES, SEC. 9; WILLIAMS V. HOWARD JOHNSON'S
RESTAURANT, 4 CIR., 268 F.2D 845.  WE, ACCORDINGLY, HOLD THAT THE
OPERATION OF ITS RESTAURANT BY EAGLE DOES NOT FALL WITHIN THE SCOPE OF
THE PROHIBITIONS OF THE FOURTEENTH AMENDMENT."*  - DEL. - , - , 157
A.2D 894, 902. 

*24 DEL. CODE, SEC. 1501, READS AS FOLLOWS: 

"NO KEEPER OF AN INN, TAVERN, HOTEL, OR RESTAURANT, OR OTHER PLACE OF
PUBLIC ENTERTAINMENT OR REFRESHMENT OF TRAVELERS, GUESTS, OR CUSTOMERS
SHALL BE OBLIGED, BY LAW, TO FURNISH ENTERTAINMENT OR REFRESHMENT TO
PERSONS WHOSE RECEPTION OR ENTERTAINMENT BY HIM WOULD BE OFFENSIVE TO
THE MAJOR PART OF HIS CUSTOMERS, AND WOULD INJURE HIS BUSINESS." 

IF IN THE CONTEXT OF THIS RECORD THIS MEANS, AS MY BROTHER STEWART
SUGGESTS, THAT THE DELAWARE COURT CONSTRUED THIS STATE STATUTE "AS
AUTHORIZING DISCRIMINATORY CLASSIFICATION BASED EXCLUSIVELY ON COLOR,"
I WOULD CERTAINLY AGREE, WITHOUT MORE, THAT THE ENACTMENT IS OFFENSIVE
TO THE FOURTEENTH AMENDMENT.  IT WOULD THEN BE QUITE UNNECESSARY TO
REACH THE MUCH BROADER QUESTIONS DEALT WITH IN THE COURT'S OPINION. 
IF, ON THE OTHER HAND, THE STATE COURT MEANT NO MORE THAN THAT UNDER
THE STATUTE, AS AT COMMON LAW, EAGLE WAS FREE TO SERVE ONLY THOSE WHOM
IT PLEASED, THEN, AND ONLY THEN, WOULD THE QUESTION OF "STATE ACTION"
BE PRESENTED IN FULL-BLOWN FORM. 

I THINK THAT SOUND PRINCIPLES OF CONSTITUTIONAL ADJUDICATION DICTATE
THAT WE SHOULD FIRST ASCERTAIN THE EXACT BASIS OF THIS STATE JUDGMENT,
AND FOR THAT PURPOSE I WOULD EITHER REMAND THE CASE TO THE DELAWARE
SUPREME COURT, SEE MUSSER V. UTAH, 333 U.S. 95; CF. HARRISON V.
N.A.A.C.P., 360 U.S. 167, OR HOLD THE CASE PENDING APPLICATION TO THE
STATE COURT FOR CLARIFICATION.  SEE HERB V. PITCAIRN, 324 U.S. 117.  IT
SEEMS TO ME BOTH UNNECESSARY AND UNWISE TO REACH ISSUES OF SUCH BROAD
CONSTITUTIONAL SIGNIFICANCE AS THOSE NOW DECIDED BY THE COURT, BEFORE
THE NECESSITY FOR DECIDING THEM HAS BECOME APPARENT. 
..END :



KOSSICK V. UNITED FRUIT CO. 365 U.S. 731 


NO. 96.  ARGUED FEBRUARY 20, 1961 - DECIDED APRIL 17, 1961 - 275 F.2D
500, REVERSED. 


IN A DIVERSITY-OF-CITIZENSHIP SUIT IN A FEDERAL DISTRICT COURT IN NEW
YORK BY PETITIONER, A SEAMAN, AGAINST RESPONDENT, A SHIPOWNER, THE
COMPLAINT ALLEGED THAT:  WHILE A MEMBER OF THE CREW OF RESPONDENT'S
VESSEL, PETITIONER SUFFERED AN AILMENT WHICH WAS NOT ATTRIBUTABLE TO
ANY FAULT OF RESPONDENT BUT WHICH ENTITLED HIM TO MAINTENANCE AND CURE;
HE REQUESTED PRIVATE TREATMENT AT RESPONDENT'S EXPENSE; THIS WAS
DENIED, BUT RESPONDENT PROMISED THAT, IF PETITIONER WOULD ACCEPT
TREATMENT AT A PUBLIC HEALTH SERVICE HOSPITAL, RESPONDENT WOULD ASSUME
RESPONSIBILITY FOR ALL CONSEQUENCES OF IMPROPER OR INADEQUATE
TREATMENT; PETITIONER DID SO AND SUFFERED INJURY AS A RESULT OF
IMPROPER TREATMENT.  THE DISTRICT COURT DISMISSED THE COMPLAINT,
BECAUSE IT FAILED TO ALLEGE THAT THE AGREEMENT WAS IN WRITING AND SUCH
A VERBAL AGREEMENT IS VOID UNDER THE NEW YORK STATUTE OF FRAUDS.  HELD:
IT WAS ERROR TO APPLY THE NEW YORK STATUTE OF FRAUDS TO BAR PROOF OF
THE AGREEMENT ALLEGED IN THE COMPLAINT.  PP. 731-742. 

(A)  THE ALLEGED AGREEMENT WAS SUFFICIENTLY RELATED TO PECULIARLY
MARITIME CONCERNS AS NOT TO BE, WITHOUT MORE, BEYOND THE PALE OF
ADMIRALTY LAW, WHICH REGARDS ORAL CONTRACTS AS VALID.  PP. 735-738. 

(B)  IT WAS NOT, NEVERTHELESS, OF SUCH A "LOCAL" NATURE THAT ITS
VALIDITY SHOULD BE JUDGED BY STATE LAW.  PP. 738-742. 

KOSSICK V. UNITED FRUIT CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CALLS IN QUESTION THE PROPRIETY OF A DISMISSAL BEFORE TRIAL
OF THE FIRST CAUSE OF ACTION IN A SEAMAN'S DIVERSITY COMPLAINT. 
DISMISSAL WAS ON THE GROUND THAT THE ALLEGATIONS OF THE COMPLAINT ARE
DEFICIENT BY REASON OF THE NEW YORK STATUTE OF FRAUDS. 

THE ALLEGATIONS OF THE COMPLAINT, WHICH FOR PRESENT PURPOSES MUST BE
TAKEN AS TRUE, ARE IN SUBSTANCE AS FOLLOWS:  PETITIONER, WHILE EMPLOYED
AS CHIEF STEWARD ON ONE OF THE VESSELS OF RESPONDENT, UNITED FRUIT
COMPANY, SUFFERED A THYROID AILMENT, NOT ATTRIBUTABLE TO ANY FAULT OF
THE RESPONDENT, BUT WITH RESPECT TO WHICH IT CONCEDEDLY HAD A LEGAL
DUTY TO PROVIDE HIM WITH MAINTENANCE AND CURE.  (THE OSCEOLA, 189 U.S.
158.)  RESPONDENT INSISTED THAT PETITIONER UNDERGO TREATMENT AT A
UNITED STATES PUBLIC HEALTH SERVICE HOSPITAL.  PETITIONER, HOWEVER,
CONSIDERING ON THE BASIS OF PAST EXPERIENCE THAT SUCH TREATMENT WOULD
PROVE UNSATISFACTORY AND INADEQUATE, NOTIFIED RESPONDENT THAT HE WISHED
TO BE TREATED BY A PRIVATE PHYSICIAN WHO HAD AGREED TO TAKE CARE OF HIM
FOR $350, WHICH AMOUNT PETITIONER INSISTED WOULD BE PAYABLE BY THE
RESPONDENT IN FULFILLMENT OF ITS OBLIGATION FOR MAINTENANCE AND CURE. 

RESPONDENT, THE COMPLAINT CONTINUES, DECLINED TO ACCEDE TO THIS
COURSE, BUT AGREED THAT IF PETITIONER WOULD ENTER A PUBLIC HEALTH
SERVICE HOSPITAL (WHERE HE WOULD RECEIVE FREE CARE) IT WOULD ASSUME
RESPONSIBILITY FOR ALL CONSEQUENCES OF IMPROPER OR INADEQUATE
TREATMENT.  RELYING ON THAT UNDERTAKING, AND BEING UNABLE HIMSELF TO
DEFRAY THE COST OF PRIVATE TREATMENT, PETITIONER UNDERWENT TREATMENT AT
A PUBLIC HEALTH SERVICE HOSPITAL.  THE PUBLIC HEALTH SERVICE HOSPITAL
AND PRIVATE PHYSICIAN ALLUDED TO WERE BOTH LOCATED IN NEW YORK. 

FINALLY, IT IS ALLEGED THAT BY REASON OF THE IMPROPER TREATMENT
RECEIVED AT SUCH HOSPITAL, PETITIONER SUFFERED GRIEVOUS UNWONTED BODILY
INJURY, FOR WHICH THE RESPONDENT, BECAUSE OF ITS UNDERTAKING, IS LIABLE
TO THE PETITIONER FOR DAMAGES IN THE AMOUNT OF $250,000.  (FN1) 

THE DISTRICT COURT DISMISSED THE COMPLAINT, CONSIDERING THAT THE
AGREEMENT SUED ON WAS VOID UNDER THE NEW YORK STATUTE OF FRAUDS, N.Y.
PERSONAL PROPERTY LAW, SEC. 31, PAR. 2, (FN2) THERE BEING NO ALLEGATION
THAT SUCH AGREEMENT WAS EVIDENCED BY ANY WRITING, 166 F. SUPP. 571. 
(FN3)  THE COURT OF APPEALS AFFIRMED.  275 F.2D 500.  WE BROUGHT THE
CASE HERE BECAUSE IT PRESENTED NOVEL QUESTIONS AS TO THE INTERPLAY OF
STATE AND MARITIME LAW.  363 U.S. 838. 

AT THE OUTSET, WE THINK IT CLEAR THAT THE LOWER COURTS WERE CORRECT
IN REGARDING THE SUFFICIENCY OF THIS COMPLAINT AS DEPENDING ENTIRELY
UPON ITS AVERMENTS RESPECTING RESPONDENT'S ALLEGED AGREEMENT WITH
PETITIONER.  LIABILITY HERE CERTAINLY CANNOT BE FOUNDED ON PRINCIPLES
OF RESPONDEAT SUPERIOR.  NOR IS THERE ANYTHING IN THE AUTHORITIES
RELATING TO A SHIPOWNER'S DUTY TO PROVIDE MAINTENANCE AND CURE WHICH
SUGGESTS THAT RESPONDENT WAS OBLIGED, AS A MATTER OF LAW, TO HONOR
PETITIONER'S PREFERENCE FOR PRIVATE TREATMENT, OR THAT IT WAS
RESPONSIBLE FOR THE QUALITY OF PETITIONER'S TREATMENT AT OTHER HANDS
WHICH, FOR ALL THAT APPEARS, MAY REASONABLY HAVE BEEN ASSUMED TO BE
WELL TRAINED AND CAREFUL. 

WITH RESPECT TO RESPONDENT'S ALLEGED AGREED UNDERTAKING, AS THE CASE
COMES TO US, PETITIONER, ON THE ONE HAND, DOES NOT DENY THE CONTRACT'S
INVALIDITY UNDER THE NEW YORK STATUTE OF FRAUDS, IF STATE LAW CONTROLS,
NOR, ON THE OTHER HAND, CAN ITS VALIDITY WELL BE DOUBTED, THOUGH THE
ALLEGED AGREEMENT WAS NOT REDUCED TO WRITING, IF MARITIME LAW
CONTROLS.  FOR IT IS AN ESTABLISHED RULE OF ANCIENT RESPECTABILITY THAT
ORAL CONTRACTS ARE GENERALLY REGARDED AS VALID BY MARITIME LAW.  (FN4)
IN THIS POSTURE OF THINGS TWO QUESTIONS MUST BE DECIDED:  FIRST, WAS
THIS ALLEGED CONTRACT A MARITIME ONE?  SECOND, IF SO, WAS IT
NEVERTHELESS OF SUCH A "LOCAL" NATURE THAT ITS VALIDITY SHOULD BE
JUDGED BY STATE LAW? 

                                    I. 

THE BOUNDARIES OF ADMIRALTY JURISDICTION OVER CONTRACTS - AS OPPOSED
TO TORTS OR CRIMES - BEING CONCEPTUAL RATHER THAN SPATIAL, HAVE ALWAYS
BEEN DIFFICULT TO DRAW.  PRECEDENT AND USAGE ARE HELPFUL INSOFAR AS
THEY EXCLUDE OR INCLUDE CERTAIN COMMON TYPES OF CONTRACT:  A CONTRACT
TO REPAIR, ENDNER V. GRECO, 3 F. 411, OR TO INSURE A SHIP, INSURANCE
CO. V. DUNHAM, 11 WALL.  1, IS MARITIME, BUT A CONTRACT TO BUILD A SHIP
IS NOT.  PEOPLE'S FERRY CO. V. BEERS, 20 HOW.  393.  WITHOUT A DOUBT A
CONTRACT FOR HIRE EITHER OF A SHIP OR OF THE SAILORS AND OFFICERS TO
MAN HER IS WITHIN THE ADMIRALTY JURISDICTION.  1 BENEDICT, ADMIRALTY,
366.  A SUIT ON A BOND COVERING CARGO ON GENERAL AVERAGE IS GOVERNED BY
ADMIRALTY LAW, CIE FRANCAISE DE NAVIGATION V. BONNASSE, 19 F.2D 777,
WHILE AN AGREEMENT TO PAY DAMAGES FOR ANOTHER'S BREACH OF A MARITIME
CHARTER IS NOT, PACIFIC SURETY CO. V. LEATHAM & SMITH T.&W. CO., 151 F.
440.  THE CLOSEST ANALOGY WE HAVE FOUND TO THE CASE AT HAND IS A
CONTRACT FOR HOSPITAL SERVICES RENDERED AN INJURED SEAMAN IN
SATISFACTION OF A SHIPOWNER'S LIABILITY FOR MAINTENANCE AND CURE, WHICH
HAS BEEN HELD TO BE A MARITIME CONTRACT.  METHODIST EPISCOPAL HOSPITAL
V. PACIFIC TRANSPORT CO., 3 F.2D 508.  THE PRINCIPLE BY REFERENCE TO
WHICH THE CASES ARE SUPPOSED TO FALL ON ONE SIDE OF THE LINE OR THE
OTHER IS AN EXCEEDINGLY BROAD ONE.  "THE ONLY QUESTION IS WHETHER THE
TRANSACTION RELATES TO SHIPS AND VESSELS, MASTERS AND MARINERS, AS THE
AGENTS OF COMMERCE  ...  ."  I BENEDICT, ADMIRALTY, 131.  (FN5) 

THE COURT OF APPEALS HERE HELD: 

"THE CONTRACT SUED ON IS NOT A MARITIME CONTRACT, SINCE IT WAS MERELY
A PROMISE TO PAY MONEY, ON LAND, IF THE FORMER SEAMAN SHOULD SUFFER
INJURY AT THE HANDS OF THE UNITED STATES PUBLIC HEALTH SERVICE
PERSONNEL, ON LAND, IN THE COURSE OF MEDICAL TREATMENT  ...  .  FOR ALL
THAT APPEARS IN THE COMPLAINT, IT MAY WELL BE THAT THE CONTRACT SUED ON
WAS ALLEGEDLY MADE AFTER THE MARITIME CONTRACT OF EMPLOYMENT OF THE
PLAINTIFF HAD BEEN TERMINATED.  IT REALLY MAKES NO DIFFERENCE WHETHER
THIS WAS SO OR NOT.  ALL THAT REMAINED WAS THE PERFORMANCE BY THE
SHIPOWNER OF ITS UNDISPUTED OBLIGATION TO SUPPLY MAINTENANCE AND CURE. 
THE SHIPOWNER SUPPLIED PLAINTIFF WITH A MASTER'S CERTIFICATE, WHICH WAS
USED BY HIM TO OBTAIN ADMITTANCE AS A PATIENT IN THE UNITED STATES
PUBLIC HEALTH SERVICE HOSPITAL  ...  .  THAT TOOK CARE OF THE
OBLIGATION TO FURNISH 'CURE'  ...  ." 

WITH RESPECT TO THE LEARNED JUDGES BELOW, WE THINK THAT IS TOO NARROW
A VIEW OF THE MATTER.  IT CAN AS WELL BE ARGUED THAT THE ALLEGED
CONTRACT RELATED TO AND STOOD IN PLACE OF A DUTY CREATED BY AND KNOWN
ONLY IN ADMIRALTY AS A KIND OF FRINGE BENEFIT TO THE MARITIME CONTRACT
OF HIRE.  SEE CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367.  THE
COURT OF APPEALS AND RESPONDENT ARE CERTAINLY CORRECT IN CONSIDERING
THAT A SHIPOWNER'S DUTY TO PROVIDE MAINTENANCE AND CURE MAY ORDINARILY
BE DISCHARGED BY THE ISSUING OF A MASTER'S CERTIFICATE CARRYING
ADMITTANCE TO A PUBLIC HOSPITAL, AND THAT A SEAMAN WHO REFUSES SUCH A
CERTIFICATE OR THE FREE TREATMENT TO WHICH IT ENTITLES HIM WITHOUT JUST
CAUSE, CANNOT FURTHER HOLD THE SHIPOWNER TO HIS DUTY TO PROVIDE
MAINTENANCE AND CURE.  WILLIAMS V. UNITED STATES, 133 F. SUPP. 319;
LUTH V. PALMER SHIPPING CO., 210 F.2D 224; THE BOUKER NO. 2, 241 F.
831; SEE CALMAR S.S. CORP. V. TAYLOR, 303 U.S. 525.  BUT WITHOUT
COUNTENANCING PETITIONER'S INTEMPERATE ASPERSIONS AGAINST PUBLIC HEALTH
SERVICE HOSPITALS, AND REJECTING AS WE HAVE THE NONCONTRACTUAL GROUNDS
UPON WHICH HE SEEKS TO PREDICATE LIABILITY HERE, WE NEVERTHELESS ARE
CLEAR THAT THE DUTY TO AFFORD MAINTENANCE AND CURE IS NOT SIMPLY AND AS
A MATTER OF LAW AN OBLIGATION TO PROVIDE FOR ENTRANCE TO A PUBLIC
HOSPITAL.  THE CASES WHICH RESPONDENT CITES HOLD NO MORE THAN THAT A
SEAMAN WHO CAN RECEIVE ADEQUATE AND PROPER CARE FREE OF CHARGE AT A
PUBLIC HOSPITAL MAY NOT "DELIBERATELY REFUSE THE HOSPITAL PRIVILEGE,
AND THEN ASSERT A LIEN UPON HIS VESSEL FOR THE INCREASED EXPENSE WHICH
HIS WHIM OR TASTE HAS CREATED."  THE BOUKER NO. 2, SUPRA, AT 835. 
PRESUMABLY IF A SEAMAN REFUSES TO ENTER A PUBLIC HOSPITAL OR, HAVING
ENTERED, IF HE LEAVES TO UNDERGO TREATMENT ELSEWHERE, HE MAY RECOVER
THE COST OF SUCH OTHER TREATMENT UPON PROOF THAT "PROPER AND ADEQUATE"
CURE WAS NOT AVAILABLE AT SUCH HOSPITAL.  CF. WILLIAMS V. UNITED
STATES, LUTH V. PALMER SHIPPING CO., SUPRA. 

NO MATTER HOW SKEPTICAL ONE MAY BE THAT SUCH A BURDEN OF PROOF COULD
BE SUSTAINED, OR THAT AN INDIGENT SEAMAN WOULD BE LIKELY TO RISK LOSING
HIS RIGHTS TO FREE TREATMENT ON THE CHANCE OF SUSTAINING THAT BURDEN,
SINCE WE SHOULD NOT EXCLUDE THAT POSSIBILITY AS A MATTER OF LAW AS THE
COURT OF APPEALS APPARENTLY DID, IT MUST FOLLOW THAT THE CONTRACT HERE
ALLEGED SHOULD BE REGARDED AS AN AGREEMENT ON THE PART OF PETITIONER TO
FOREGO A COURSE OF TREATMENT WHICH MIGHT HAVE INVOLVED RESPONDENT IN
SOME ADDITIONAL EXPENSE, IN RETURN FOR RESPONDENT'S PROMISE TO MAKE
PETITIONER WHOLE FOR ANY CONSEQUENCES OF WHAT APPEARED TO IT AT THE
TIME AS THE CHEAPER ALTERNATIVE.  IN OTHER WORDS, THE CONSIDERATION FOR
RESPONDENT'S ALLEGED PROMISE WAS PETITIONER'S GOOD FAITH FORBEARANCE TO
PRESS WHAT HE CONSIDERED - PERHAPS ERRONEOUSLY - TO BE THE FULL EXTENT
OF HIS MARITIME RIGHT TO MAINTENANCE AND CURE.  COMPARE, AMERICAN LAW
INSTITUTE, RESTATEMENT, CONTRACTS SECS. 75, 76.  SO VIEWED, WE THINK
THAT THE ALLEGED AGREEMENT WAS SUFFICIENTLY RELATED TO PECULIARLY
MARITIME CONCERNS AS NOT TO PUT IT, WITHOUT MORE, BEYOND THE PALE OF
ADMIRALTY LAW. 

THIS BRINGS US, THEN, TO THE REMAINING, AND WHAT WE BELIEVE IS THE
CONTROLLING, QUESTION: WHETHER THE ALLEGED CONTRACT, THOUGH MARITIME,
IS "MARITIME AND LOCAL," WESTERN FUEL CO. V. GARCIA, 257 U.S. 233, 242,
IN THE SENSE THAT THE APPLICATION OF STATE LAW WOULD NOT DISTURB THE
UNIFORMITY OF MARITIME LAW, SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S.
205. 

                                             II. 

ALTHOUGH THE DOCTRINES OF THE UNIFORMITY AND SUPREMACY OF THE
MARITIME LAW HAVE BEEN VIGOROUSLY CRITICIZED - SEE SOUTHERN PACIFIC CO.
V. JENSEN, SUPRA, AT 218 (DISSENTING OPINION); STANDARD DREDGING CO. V.
MURPHY, 319 U.S. 306, 309 - THE QUALIFICATIONS AND EXCEPTIONS WHICH
THIS COURT HAS BUILT UP TO THAT IMPERATIVE DOCTRINE HAVE NOT BEEN
CONSIDERED NOTABLY MORE ADEQUATE.  SEE GILMORE AND BLACK, ADMIRALTY,
PASSIM; CURRIE, FEDERALISM AND THE ADMIRALTY:  "THE DEVIL'S OWN MESS,"
1960, THE SUPREME COURT REVIEW, 158; THE APPLICATION OF STATE SURVIVAL
STATUTES IN MARITIME CAUSES, 60 COL. L. REV. 534.  PERHAPS THE MOST
OFTEN HEARD CRITICISM OF THE SUPREMACY DOCTRINE IS THIS:  THE FACT THAT
MARITIME LAW IS - IN A SPECIAL SENSE AT LEAST, ROMERO V. INTERNATIONAL
TERMINAL CO., 358 U.S. 354 - FEDERAL LAW AND THEREFORE SUPREME BY
VIRTUE OF ARTICLE VI OF THE CONSTITUTION, CARRIES WITH IT THE
IMPLICATION THAT WHEREVER A MARITIME INTEREST IS INVOLVED, NO MATTER
HOW SLIGHT OR MARGINAL, IT MUST DISPLACE A LOCAL INTEREST, NO MATTER
HOW PRESSING AND SIGNIFICANT.  BUT THE PROCESS IS SURELY RATHER ONE OF
ACCOMMODATION, ENTIRELY FAMILIAR IN MANY AREAS OF OVERLAPPING STATE AND
FEDERAL CONCERN, OR A PROCESS SOMEWHAT ANALOGOUS TO THE NORMAL CONFLICT
OF LAWS SITUATION WHERE TWO SOVEREIGNTIES ASSERT DIVERGENT INTERESTS IN
A TRANSACTION AS TO WHICH BOTH HAVE SOME CONCERN.  SURELY THE CALIM OF
FEDERAL SUPREMACY IS ADEQUATELY SERVED BY THE AVAILABILITY OF A FEDERAL
FORUM IN THE FIRST INSTANCE AND OF REVIEW IN THIS COURT TO PROVIDE
ASSURANCE THAT THE FEDERAL INTEREST IS CORRECTLY ASSESSED AND ACCORDED
DUE WEIGHT. 

THUS, FOR INSTANCE, IT BLINKS AT REALITY TO ASSERT THAT BECAUSE A
LONGSHOREMAN, LIVING ASHORE AND EMPLOYED ASHORE BY SHORESIDE EMPLOYERS,
PERFORMS SEAMAN'S WORK, THE STATE WITH THESE CONTACTS MUST LOSE ALL
CONCERN FOR THE LONGSHOREMAN'S STATUS AND WELL-BEING.  IN ALLOWING
STATE WRONGFUL DEATH STATUTES, THE TUNGUS V. SKOVGAARD, 358 U.S. 588;
THE HAMILTON, 207 U.S. 398, AND STATE SURVIVAL OF ACTIONS STATUTES,
JUST V. CHAMBERS, 312 U.S. 383, RESPECTIVELY, TO GRANT AND TO PRESERVE
A CAUSE OF ACTION BASED ULTIMATELY ON A WRONG COMMITTED WITHIN THE
ADMIRALTY JURISDICTION AND DEFINED BY ADMIRALTY LAW, THIS COURT HAS
ATTEMPTED AN ACCOMMODATION BETWEEN A LIABILITY DEPENDENT PRIMARILY UPON
THE BREACH OF A MARITIME DUTY AND STATE RULES GOVERNING THE EXTENT OF
RECOVERY FOR SUCH BREACH.   SINCE THE CHANCE OF DEATH FORECLOSING
RECOVERY IS NECESSARILY A FORTUITOUS MATTER, AND SINCE THE RECOVERY
AFFORDED THE DISABLED VICTIM OF AN ACCIDENT NEED BE NO LESS THAN THAT
AFFORDED TO HIS FAMILY SHOULD HE DIE, THE INTRUSION OF THESE STATE
REMEDIAL SYSTEMS NEED NOT BRING WITH IT ANY UNDESIRABLE DISUNIFORMITY
IN THE SCHEME OF MARITIME LAW. 

ALTOGETHER ANALOGOUS REASONING WAS USED BY MR. JUSTICE BRANDEIS IN
RED CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109, WHERE IT WAS HELD
THAT A NEW YORK COURT COULD PROPERLY COMPEL ARBITRATION UNDER THE
ARBITRATION CLAUSE OF A MARITIME CONTRACT.  IT WAS THERE REASONED THAT
SINCE SUCH CLAUSES WERE VALID IN ADMIRALTY AND THEIR BREACH GIVES RISE
TO AN ACTION FOR DAMAGES, TO COMPEL ARBITRATION IS REALLY TO DO NO MORE
THAN SUBSTITUTE A DIFFERENT AND MORE EFFECTIVE REMEDY FOR THAT
AVAILABLE IN ADMIRALTY.    THE LINE OF CASES DESCENDED FROM THE EARLY
PRECEDENT OF COOLEY V. BOARD OF WARDENS, 12 HOW.  299, AND MOST
RECENTLY ADDED TO BY HURON PORTLAND CEMENT V. DETROIT, 362 U.S. 440;
SEE ALSO KELLY V. WASHINGTON, 302 U.S. 1, EXEMPLIFY BUT ANOTHER
VARIATION OF THIS PROCESS OF ACCOMMODATION.  IN THE HURON CASE WE
ALLOWED THE CITY OF DETROIT TO IMPOSE THE REQUIREMENTS OF ITS SMOKE
CONTROL REGULATIONS ON VESSELS COMING TO THE CITY, EVEN THOUGH THEY HAD
MEASURED UP TO FEDERALLY IMPOSED STANDARDS AS TO SHIP'S BOILERS AND
EQUIPMENT.  THERE THE MATTER WAS PUT THUS:    "  ...  THE THRUST OF THE
FEDERAL INSPECTION LAWS WITH WHICH PETITIONER HAD COMPLIED IS CLEARLY
LIMITED TO AFFORDING PROTECTION FROM THE PERILS OF MARITIME NAVIGATION
...  . 

"BY CONTRAST, THE SOLE AIM OF THE DETROIT ORDINANCE IS THE
ELIMINATION OF AIR POLLUTION TO PROTECT THE HEALTH AND ENHANCE THE
CLEANLINESS OF THE LOCAL COMMUNITY  ...  . 

     *         *         *       *         * 

"CONGRESSIONAL RECOGNITION THAT THE PROBLEM OF AIR POLLUTION IS
PECULIARLY A MATTER OF STATE AND LOCAL CONCERN IS MANIFEST IN  ...
LEGISLATION."  362 U.S., AT 445-446. 

TURNING TO THE PRESENT CASE, WE THINK THAT SEVERAL CONSIDERATIONS
POINT TO AN ACCOMMODATION FAVORING THE APPLICATION OF MARITIME LAW.  IT
MUST BE REMEMBERED THAT WE ARE DEALING HERE WITH A CONTRACT, AND
THEREFORE WITH OBLIGATIONS, BY HYPOTHESIS, VOLUNTARILY UNDERTAKEN, AND
NOT, AS IN THE CASE OF TORT LIABILITY OR PUBLIC REGULATIONS,
OBLIGATIONS IMPOSED SIMPLY BY VIRTUE OF THE AUTHORITY OF THE STATE OR
FEDERAL GOVERNMENT.  THIS FACT IN ITSELF CREATES SOME PRESUMPTION IN
FAVOR OF APPLYING THAT LAW TENDING TOWARD THE VALIDATION OF THE ALLEGED
CONTRACT.  PRITCHARD V. NORTON, 106 U.S. 124; EHRENZWEIG, CONTRACTS IN
THE CONFLICT OF LAWS, PART ONE:  VALIDITY, 59 COL. L. REV. 973.  AS WE
HAVE ALREADY SAID, IT IS DIFFICULT TO DENY THE ESSENTIALLY MARITIME
CHARACTER OF THIS CONTRACT WITHOUT EITHER INDULGING IN FINE-SPUN
DISTINCTIONS IN TERMS OF WHAT THE TRANSACTION WAS REALLY ABOUT, OR
SIMPLY DENYING THE ALLEGED AGREEMENT THAT CHARACTERIZATION BY REASON OF
ITS NOVELTY.  CONSIDERING THAT SAILORS OF ANY NATIONALITY MAY JOIN A
SHIP IN ANY PORT, AND THAT IT IS THE CLEAR DUTY OF THE SHIP TO PUT INTO
THE FIRST AVAILABLE PORT IF THIS BE NECESSARY TO PROVIDE PROMPT AND
ADEQUATE MAINTENANCE AND CURE TO A SEAMAN WHO FALLS ILL DURING THE
VOYAGE, THE IROQUOIS, 194 U.S. 240, IT SEEMS TO US THAT THIS IS SUCH A
CONTRACT AS MAY WELL HAVE BEEN MADE ANYWHERE IN THE WORLD, AND THAT THE
VALIDITY OF IT SHOULD BE JUDGED BY ONE LAW WHEREVER IT WAS MADE.  ON
THE OTHER HAND WE ARE HARD PUT TO PERCEIVE HOW THIS CONTRACT WAS
"PECULIARLY A MATTER OF STATE AND LOCAL CONCERN," HURON PORTLAND CEMENT
V. DETROIT, SUPRA, UNLESS IT BE NEW YORK'S INTEREST IN NOT LENDING HER
COURTS TO THE ACCOMPLISHMENT OF FRAUD, SOMETHING WHICH APPEARS TO US
INSUFFICIENT TO OVERCOME THE COUNTERVAILING CONSIDERATIONS.  FINALLY,
SINCE THE EFFECT OF THE APPLICATION OF NEW YORK LAW HERE WOULD BE TO
INVALIDATE THE CONTRACT, THIS CASE CAN HARDLY BE ANALOGIZED TO CASES
SUCH AS RED CROSS LINE V. ATLANTIC FRUIT, OR JUST V. CHAMBERS, SUPRA,
WHERE STATE LAW HAD THE EFFECT OF SUPPLEMENTING THE REMEDIES AVAILABLE
IN ADMIRALTY FOR THE VINDICATION OF MARITIME RIGHTS.  NOR IS WILBURN
BOAT CO. V. FIREMAN'S INS. CO., 348 U.S. 310, APPOSITE.  THE
APPLICATION OF STATE LAW IN THAT CASE WAS JUSTIFIED BY THE COURT ON THE
BASIS OF A LACK OF ANY PROVISION OF MARITIME LAW GOVERNING THE MATTER
THERE PRESENTED.  A CONCURRING OPINION, ID., AT 321, AND SOME
COMMENTATORS HAVE PREFERRED TO REFER THE DECISION TO THE ABSURDITY OF
APPLYING MARITIME LAW TO A CONTRACT OF INSURANCE ON A HOUSEBOAT
ESTABLISHED IN THE WATERS OF A SMALL ARTIFICIAL LAKE BETWEEN TEXAS AND
OKLAHOMA.  SEE GILMORE AND BLACK, ADMIRALTY 44-45.  NEEDLESS TO SAY THE
SITUATION PRESENTED HERE HAS A MORE GENUINELY SALTY FLAVOR THAN THAT. 

IN SUM, WERE CONTRACTS OF THE KIND ALLEGED IN THIS COMPLAINT KNOWN TO
BE A NORMAL PHENOMENON IN MARITIME AFFAIRS, WE THINK THAT THERE WOULD
BE LITTLE ROOM FOR ARGUMENT IN FAVOR OF ALLOWING LOCAL LAW TO CONTROL
THEIR VALIDITY.  A DIFFERENT CONCLUSION SHOULD NOT BE REACHED EITHER
BECAUSE SUCH A CONTRACT MAY BE THOUGHT TO BE A RARITY, OR BECAUSE OF
ANY SUSPICION THAT THIS COMPLAINT MAY HAVE BEEN CONTRIVED TO SERVE
ULTERIOR PURPOSES.  CF. 275 F.2D, AT 501; 166 F. SUPP., AT 573-574,
NOTE 1, SUPRA.  WITHOUT REMOTELY INTIMATING ANY VIEW UPON THE MERITS OF
PETITIONER'S CLAIM, WE CONCLUDE THAT IT WAS ERROR TO APPLY THE NEW YORK
STATUTE OF FRAUDS TO BAR PROOF OF THE AGREEMENT ALLEGED IN THE
COMPLAINT.  REVERSED. 

FN1  APPARENTLY ANY CAUSE OF ACTION AGAINST THE UNITED STATES ARISING
OUT OF THE ALLEGED NEGLIGENCE OF ITS AGENTS IN TREATING PETITIONER WAS
BARRED BY THE RUNNING OF A SHORTER STATUTE OF LIMITATIONS THAN IS
APPLICABLE TO THE CONTRACT ALLEGED HERE.  COMPARE 28 U.S.C.  SEC.
2401(B) WITH NEW YORK CIVIL PRACTICE ACT, SEC. 48. 

FN2  NEW YORK PERSONAL PROPERTY LAW, SEC. 31, PAR. 2, PROVIDES: 

"EVERY AGREEMENT, PROMISE OR UNDERTAKING IS VOID, UNLESS IT OR SOME
NOTE OR MEMORANDUM THEREOF BE IN WRITING, AND SUBSCRIBED BY THE PERSON
TO BE CHARGED THEREWITH, OR BY HIS LAWFUL AGENT, IF SUCH AGREEMENT,
PROMISE OR UNDERTAKING: 

     *         *         *         *  * 

"2.  IS A SPECIAL PROMISE TO ANSWER FOR THE DEBT, DEFAULT OR
MISCARRIAGE OF ANOTHER PERSON." 

FN3  A SECOND CAUSE OF ACTION FOR MAINTENANCE AND CURE WAS
SUBSEQUENTLY DISCONTINUED BY PETITIONER, 275 F.2D, AT 502. 

FN4  ALTHOUGH THE QUESTION HAS NOT OFTEN BEEN LITIGATED, UNION FISH
CO. V. ERICKSON, 248 U.S. 308; SEE UNITED STATES FIDELITY & GUARANTY
CO. V. AMERICAN-HAWAIIAN S.S. CO., 280 F. 1023; HASTORF V. LONG-W.G.
BROADHURST CO., 239 F. 852; QUIRK V. CLINTON, 20 FED. CAS.  NO. 11,518;
NORTHERN STAR S.S. CO. V. KANSAS MILLING CO., 75 F. SUPP. 534, IT IS
WELL ACCEPTED THAT MARITIME CONTRACTS DO NOT AS A GENERALITY DEPEND ON
WRITING FOR THEIR VALIDITY.  AS JUDGE HOUGH, ONE OF THE MOST
DISTINGUISHED OF THE FEDERAL ADMIRALTY JUDGES, ONCE SAID: 

"  ...  THIS FAILURE TO STRESS FORCE OF CUSTOM, IN MARITIME MATTERS,
IS FOUND IN UNION FISH CO. V. ERICKSON (SUPRA), WHERE WITH OBVIOUS
CORRECTNESS THE CALIFORNIA STATUTE OF FRAUDS WAS NOT PERMITTED TO
DEFEAT A SHIPMASTER'S LIBEL FOR WRONGFUL DISCHARGE FROM AN ENGAGEMENT
FOR MORE THAN ONE YEAR.  ...  THE GROUND OF DECISION SHOULD HAVE BEEN
THE SIMPLE ONE THAT SUCH ENGAGEMENTS, ORALLY MADE, WERE AS OLD AS THE
HISTORY OF MARINE CUSTOMS, HAD PASSED INTO THE MARITIME LAW OF THE
UNITED STATES, AND WOULD BE RECOGNIZED AND ENFORCED BY THE COURTS OF
THE NATION, - SO THAT WHAT CALIFORNIA SAID ON THE SUBJECT (IF ANYTHING)
WAS MERELY IMMATERIAL."  HOUGH, ADMIRALTY JURISDICTION - OF LATE YEARS,
37 HARV. L. REV. 529, AT 537. 

WRITING OF A DIFFERENT SORT OF CONTRACT, AN EQUALLY DISTINGUISHED
BRITISH ADMIRALTY JUDGE HAS SAID THAT "  ...  IT IS COMMON PRACTICE FOR
COMMERCIAL MEN TO ASSUME VERY EXTENSIVE FINANCIAL OBLIGATIONS ON THE
NOD OF A HEAD OR THE INITIALING OF A SLIP, AND MANY BINDING CHARTERING
ENGAGEMENTS ARE NO DOUBT DAILY CONCLUDED IN AN INFORMAL MANNER  ...
."  SOC.  PORTUGUESA DE NAVIOS TANQUES, LTD. V. HVALFSLSK POLARIS A/S,
(1952) 1 LLOYD'S LIST REPORTS 73, 74 (PER MCNAIR, J.), IN WHICH OPINION
HE IS CONFIRMED BY KENT, 3 COMMENTARIES 159-160 (1828 ED.), AND THE
FRENCH AUTHORITY, POTHIER, MARITIME CONTRACTS 10 (CUSHING TRANS.).
TRUE, A SEAMAN'S CONTRACT OF HIRE, HIS ARTICLES, HAVE LONG BEEN
REQUIRED TO BE IN WRITING BY STATUTES OF THE VARIOUS MARITIME NATIONS,
AMONG THEM ONE OF THE FIRST STATUTES PASSED BY OUR CONGRESS, 1 STAT.
131 (1790).  COMPARE 2 GEO. II, C. 36 (1729).  BUT THIS RULE WAS
CLEARLY INSTITUTED FOR THE PROTECTION OF THE SEAMAN, CURTIS, MERCHANT
SEAMEN 37, AND IN NO WAY ASSUMES THE INVALIDITY OF SUCH CONTRACTS IN
THE ABSENCE OF WRITING.  IN OUR LAW THE SEAMAN WHO SHIPS WITHOUT
ARTICLES CAN RECOVER THE HIGHEST WAGES PAID AT THE PORT OF EMBARCATION,
AS WELL AS SUBJECTING THE MASTER WHO TOOK HIM ON BOARD TO PENALTIES, 46
U.S.C. SECS. 564, 578; NORRIS, THE LAW OF SEAMEN, SECS. 91, 119.  AN
ORDONNANCE OF LOUIS XIV DECLARES THAT IF THE SEAMAN'S CONTRACT IS NOT
IN WRITING, THE SEAMAN'S OATH AS TO ITS PROVISIONS MUST BE CREDITED,
POTHIER, SUPRA, AT 100, WHILE LORD TENTERDEN, MERCHANT SHIPS AND SEAMEN
476, EXPRESSLY STATES THAT AN ORAL CONTRACT OF HIRE IS NOT INVALID BUT
ONLY RESULTS IN A PENALTY AGAINST THE MASTER.  THE UNION FISH CASE,
SUPRA, NO MORE THAN EXEMPLIFIES THE ENFORCEABILITY OF AN ORAL MARITIME
CONTRACT OF HIRE. 

FN5  BENEDICT GOES ON TO QUOTE FROM AN ANONYMOUS COMMENTARY ON THE
MEDIAEVAL STATUTES OF CULM, ONE OF THE EARLY SOURCES OF MARITIME LAW,
THAT ANYTHING PERTAINING TO NAVIGATION OR SEAMEN IS TO CONSIDERED A
PART OF THE MARITIME LAW. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

CERTAINLY NO DECISION IN THE COURT'S HISTORY HAS BEEN THE PROGENITOR
OF MORE LASTING DISSATISFACTION AND DISHARMONY WITHIN A PARTICULAR AREA
OF THE LAW THAN SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205.  THE
MISCHIEF IT HAS CAUSED WAS DUE TO THE UNCRITICAL APPLICATION OF THE
LOOSE DOCTRINE OF OBSERVING "THE VERY UNIFORMITY IN RESPECT TO MARITIME
MATTERS WHICH THE CONSTITUTION WAS DESIGNED TO ESTABLISH."  SOUTHERN
PACIFIC CO. V. JENSEN, SUPRA, AT 217.  THE LOOSER A LEGAL DOCTRINE,
LIKE THAT OF THE DUTY TO OBSERVE "THE UNIFORMITY OF MARITIME LAW," THE
MORE INCUMBENT IT IS UPON THE JUDICIARY TO APPLY IT WITH WELL-DEFINED
CONCRETENESS.  IT CAN FAIRLY BE SAID THAT THE JENSEN DECISION HAS NOT
BEEN TREATED AS A FAVORED DOCTRINE.  QUITE THE CONTRARY.  IT HAS BEEN
STEADILY NARROWED IN APPLICATION, AS IS STRIKINGLY ILLUSTRATED BY SUCH
A TOUR DE FORCE AS OUR DECISION IN DAVIS V. DEPARTMENT OF LABOR, 317
U.S. 249. 

THE COURT TODAY, RELYING AS IT DOES ON JENSEN, REINVIGORATES THAT
"ILL-STARRED DECISION."  DAVIS V. DEPARTMENT OF LABOR, SUPRA, AT 259
(CONCURRING OPINION).  THE NOTION THAT IF SUCH A LIMITED AND
ESSENTIALLY LOCAL TRANSACTION AS THE CONTRACT HERE IN ISSUE WERE
ALLOWED TO BE GOVERNED BY A LOCAL STATUTE OF FRAUDS IT WOULD "DISTURB
THE UNIFORMITY OF MARITIME LAW" IS, I RESPECTFULLY SUBMIT, TOO ABSTRACT
AND DOCTRINAIRE A VIEW OF THE TRUE DEMANDS OF MARITIME LAW.  I WOULD
AFFIRM THE JUDGMENT BELOW. 

MR. JUSTICE WHITTAKER, DISSENTING. 

LIKE THE COURT OF APPEALS, 275 F.2D 500, I THINK THE ORAL CONTRACT
HERE CLAIMED BY PETITIONER WAS NOT A MARITIME BUT A NEW YORK CONTRACT
AND BARRED BY ITS STATUTE OF FRAUDS.  NEW YORK PERSONAL PROPERTY LAW,
SEC. 31, PAR. 2.  I THEREFORE DISSENT. 
..END :

















MOSES LAKE HOMES V. GRANT COUNTY 365 U.S. 744 


NO. 212.  ARGUED MARCH 23, 1961 - DECIDED APRIL 17, 1961 - 276 F.2D 836,
REVERSED. 


1.  RESPONDENT COUNTY ATTEMPTED TO TAX THE FULL VALUE OF THE BUILDINGS
AND IMPROVEMENTS ON PRIVATELY OWNED WHERRY ACT LEASEHOLDS OF HOUSING
DEVELOPMENTS ON A FEDERALLY OWNED AIR FORCE BASE, ALTHOUGH IT TAXED
OTHER LEASEHOLDS, INCLUDING PRIVATELY OWNED LEASEHOLDS OF TAX-EXEMPT
STATE LANDS, AT A LOWER VALUATION.  HELD:  THE TAX IS UNCONSTITUTIONAL
AND VOID, BECAUSE IT DISCRIMINATES AGAINST THE UNITED STATES AND ITS
LESSEES.  PHILLIPS CO. V. DUMAS SCHOOL DISTRICT, 361 U.S. 376,
FOLLOWED.  OFFUTT HOUSING CO. V. SARPY COUNTY, 351 U.S. 253,
DISTINGUISHED.  PP. 749-751. 

2.  THE COURT OF APPEALS ERRED IN HOLDING THAT THE FACT THAT THE
TAXES WERE HIGHER DID NOT INVALIDATE THEM ENTIRELY BUT ONLY REQUIRED
THAT THE AMOUNT COLLECTIBLE BE REDUCED TO A VALID AMOUNT AND IN
DIRECTING THE DISTRICT COURT TO DECREE A VALID TAX FOR THE INVALID ONE
WHICH THE STATE HAD ATTEMPTED TO EXACT.  SUCH A DISCRIMINATORY TAX IS
ENTIRELY VOID, AND FEDERAL COURTS HAVE NO AUTHORITY TO ASSESS OR LEVY
TAXES ON BEHALF OF STATES OR THEIR COUNTIES.  PP. 751-752. 

3.  AN OPINION AND JUDGMENT OF THE SUPREME COURT OF WASHINGTON
HOLDING THAT SUCH LEASEHOLDS MAY LAWFULLY BE SO VALUED WAS NOT RES
JUDICATA AS TO THE COUNTY'S TAX CLAIMS AGAINST ONE OF THE LEASEHOLDS
HERE INVOLVED FOR THE YEARS 1955 AND 1956, BECAUSE NO TAX HAD BEEN
LEVIED OR ASSESSED AGAINST THAT LEASEHOLD WHEN THAT DECISION WAS
RENDERED, AND HENCE NO ISSUE OF DISCRIMINATION WAS OR COULD HAVE BEEN
PRESENTED AND ADJUDICATED IN THAT CASE.  P. 752. 

MOSES LAKE HOMES, INC., ET AL. V. GRANT COUNTY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

AMONG THEIR VARIOUS CONTENTIONS, PETITIONERS SOUGHT OUR WRIT OF
CERTIORARI ON THE GROUND THAT, ALTHOUGH FINDING THAT THE STATE OF
WASHINGTON HAD DISCRIMINATORILY, AND THEREFORE UNCONSTITUTIONALLY,
VALUED AND TAXED THEIR FEDERAL WHERRY ACT LEASEHOLDS, THE COURT OF
APPEALS FOR THE NINTH CIRCUIT, NEVERTHELESS, SUSTAINED AND ENFORCED
THOSE TAXES.  276 F.2D 836.  WE GRANTED THE WRIT, LIMITED TO THAT
QUESTION.  364 U.S. 814.  UNDERSTANDING OF OUR DECISION WILL REQUIRE A
BRIEF STATEMENT OF THE RELEVANT FACTS OF THE CASE. 

ACTING PURSUANT TO THE PROVISIONS OF SECS. 801 TO 809 OF TITLE VIII
OF THE NATIONAL HOUSING ACT (12 U.S.C. (1958 ED.)  SECS.  1748, 1748A
TO 1748H-1), THE SECRETARY OF THE AIR FORCE, ON BEHALF OF THE UNITED
STATES, ENTERED INTO A SEPARATE LEASE, WITH EACH OF MOSES LAKE HOMES,
INC., LARSONAIRE HOMES, INC., AND LARSON HEIGHTS, INC., WASHINGTON
CORPORATIONS, DEMISING, IN EACH INSTANCE, A PARTICULARLY DESCRIBED
TRACT OF LAND, WITHIN THE LARSON AIR FORCE BASE IN GRANT COUNTY,
WASHINGTON, FOR A TERM OF 75 YEARS, UNLESS SOONER TERMINATED BY THE
GOVERNMENT, FOR USE AS A HOUSING PROJECT AT A NOMINAL RENTAL OF $100
PER YEAR.  (FN1) 

THE LEASES WERE ON THE SAME FORM, AND EACH BOUND THE LESSEE TO ERECT
ON ITS LEASEHOLD A DESCRIBED HOUSING PROJECT, AND TO MAINTAIN AND
OPERATE IT THROUGHOUT THE LIFE OF THE LEASE.  EACH LEASE CONTEMPLATED
AND PROVIDED THAT THE LESSEE WOULD RAISE THE MONEY NECESSARY TO
CONSTRUCT THE PROJECT BY AN F.H.A. INSURED MORTGAGE LOAN ON ITS
LEASEHOLD AND THE IMPROVEMENTS, TO BE SERVICED AND AMORTIZED BY THE
LESSEE OUT OF ITS RENTS FROM THE HOUSING UNITS, WHICH WERE TO BE RENTED
AT SUCH RATES AND TO SUCH MILITARY AND CIVILIAN PERSONNEL AS THE
COMMANDING OFFICER OF THE AIR BASE MIGHT DESIGNATE.  THE LEASES FURTHER
PROVIDED THAT THE BUILDINGS AND IMPROVEMENTS, "AS COMPLETED," WOULD
BECOME THE PROPERTY OF THE UNITED STATES AND SO REMAIN, REGARDLESS OF
ANY TERMINATION OF THE LEASE, WITHOUT FURTHER COMPENSATION TO THE
LESSEE. 

WITH THE PROCEEDS OF F.H.A. INSURED MORTGAGE LOANS ON THEIR
RESPECTIVE LEASEHOLDS AND THE IMPROVEMENTS, AGGREGATING MORE THAN
$6,000,000, THE LESSEES ERECTED THE RESPECTIVE HOUSING PROJECTS AND
UNDERTOOK THEIR MANAGEMENT AND OPERATION AS AGREED IN THE LEASES. 

IN JUNE 1954, THE GRANT COUNTY ASSESSOR PLACED THE MOSES LAKE
LEASEHOLD ON HIS ASSESSMENT LIST FOR TAXATION IN THE YEAR 1955, BUT HE
DID NOT THEN LEVY ANY TAX AGAINST IT.  MOSES LAKE PROMPTLY SUED FOR AND
OBTAINED A DECREE IN THE SUPERIOR COURT OF THE STATE ENJOINING THE
COUNTY FROM LEVYING ANY TAXES ON ITS LEASEHOLD FOR THE YEAR 1955 AND
THEREAFTER.  UPON THE COUNTY'S APPEAL, THE SUPREME COURT OF WASHINGTON
REVERSED ON NOVEMBER 14, 1957, HOLDING THAT THE LEASEHOLD WAS TAXABLE
BY THE COUNTY, AND FURTHER HOLDING, UPON ITS UNDERSTANDING OF OUR
OPINION IN OFFUTT HOUSING CO. V. SARPY COUNTY, 351 U.S. 253, THAT IT
WOULD BE PROPER, FOR SUCH PURPOSE, TO VALUE THE LEASEHOLD AT "THE FULL
VALUE OF THE BUILDINGS AND IMPROVEMENTS" THEREON.  MOSES LAKE HOMES,
INC., V. GRANT COUNTY, 51 WASH. 2D 285, 287, 317 P.2D 1069, 1070. 

THEREAFTER, IN DECEMBER 1957, THE COUNTY VALUED THESE WHERRY ACT
LEASEHOLDS ON THE BASIS OF THE FULL VALUE OF THE BUILDINGS AND
IMPROVEMENTS, AND, ACTING UNDER SEC. 84.40.080, REVISED CODE OF
WASHINGTON, RETROSPECTIVELY ASSESSED ITS TAXES AGAINST THE MOSES LAKE
LEASEHOLD FOR THE YEARS 1955 THROUGH 1958, AGAINST THE LARSONAIRE
LEASEHOLD FOR THE YEARS 1956 THROUGH 1958, AND AGAINST THE LARSON
HEIGHTS LEASEHOLD FOR THE YEARS 1957 AND 1958 AS "OMITTED PROPERTY" AS
AUTHORIZED BY THAT SECTION.  (FN2)  LATER, THE COUNTY ASSESSED AND
LEVIED ITS TAXES AGAINST THE LEASEHOLDS, ON THE SAME BASIS, FOR THE
YEAR 1959.  (FN3) 

ON JANUARY 21, 1958, THE COUNTY ISSUED ITS DISTRAINTS, AND ALSO ITS
NOTICES OF SALES OF THESE LEASEHOLDS AND THE IMPROVEMENTS THEREON TO BE
HELD ON MARCH 4, 1958, TO SATISFY ITS TAX DEMANDS.  VERY SOON
THEREAFTER, THE UNITED STATES INSTITUTED THIS CONDEMNATION ACTION IN
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
AGAINST THE LESSEES AND GRANT COUNTY, AND ON MARCH 1, 1958, IT FILED
THEREIN ITS DECLARATION OF TAKING, AND TOOK, THESE LEASEHOLD ESTATES -
DEPOSITING IN THE REGISTRY OF THE COURT $253,000 AS THEIR ESTIMATED
VALUE (FN4) - AND THEREUPON, ON MOTION OF THE UNITED STATES, THE COURT
ENJOINED GRANT COUNTY FROM PROCEEDING WITH ITS TAX SALES PENDING FINAL
DETERMINATION OF THE CASE. 

BY ITS ANSWER, THE COUNTY CLAIMED, AND ASKED THE COURT TO AWARD IT,
THE GREATER PART OF THE DEPOSIT TO SATISFY ITS TAX DEMANDS.  (FN5)  THE
LESSEES DISPUTED THE COUNTY'S CLAIM, CONTENDING, INTER ALIA, THAT THE
ASSERTED TAXES WERE INVALID BECAUSE DISCRIMINATORILY ASSESSED IN
VIOLATION OF SEC. 511 OF THE HOUSING ACT OF 1956 (70 STAT. 1091, C.
1029, 42 U.S.C. (1958 ED.)  SEC.  1594, NOTE) AND IN VIOLATION OF THE
UNITED STATES CONSTITUTION.  THAT ISSUE, AMONG OTHERS, WAS LITIGATED
BETWEEN THOSE PARTIES AS ADVERSARY CODEFENDANTS. 

ALTHOUGH THE DISTRICT COURT FOUND THAT WASHINGTON'S "TAXES AND
ASSESSMENTS ON WHERRY HOUSING LEASEHOLDS ARE  ...  LEVIED UPON A BASIS
DIFFERENT AND HIGHER THAN OTHER LEASEHOLDS," IT, NEVERTHELESS, HELD
THAT, BUT FOR THE STATE COURT INJUNCTION, THE 1955 AND 1956 TAXES
AGAINST THE MOSES LAKE LEASEHOLD WOULD HAVE BEEN VALIDLY ASSESSED AND
LEVIED BEFORE THE EFFECTIVE PERIOD OF SEC. 511 OF THE HOUSING ACT OF
1956 (JUNE 15, 1956), (FN6) AND IT ALLOWED THOSE ITEMS OF THE COUNTY'S
CLAIM; BUT IT DENIED ALL OTHER ITEMS OF THE CLAIM.  ON APPEAL, THE
NINTH CIRCUIT "SUSTAINED THE DISTRICT COURT'S FINDING THAT THE METHOD
USED IN ASSESSING THE MOSES LAKE LEASEHOLDS RESULTED IN A HIGHER TAX
THAN WOULD HAVE BEEN TRUE IN THE CASE OF A NON-WHERRY ACT LEASEHOLD,"
276 F.2D, AT 847, BUT IT HELD THAT "THE FACT THAT THE TAXES ARE HIGHER
DOES NOT INVALIDATE THE ENTIRE TAX.  IT ONLY REQUIRES THAT THE AMOUNT
COLLECTIBLE BE REDUCED TO WHAT IT WOULD HAVE BEEN IF THE TAX HAD BEEN
LEVIED ON A NON-WHERRY ACT LEASEHOLD BASIS," 276 F.2D, AT 847, AND -
OTHERWISE UPHOLDING THE COUNTY'S LEVIES AGAINST THE MOSES LAKE
LEASEHOLD FOR THE YEARS 1955, 1956 AND 1957 - IT REMANDED THE CASE TO
THE DISTRICT COURT TO MAKE THE PROPER REDUCTION IN THE AMOUNT OF THOSE
TAXES, AND ALSO FOR FURTHER PROCEEDINGS RESPECTING THE OTHER TAXPAYERS
AND TAX YEARS INVOLVED, EXCEPT IT HELD THAT THE 1959 TAXES WERE INVALID
BECAUSE LEVIED ON THE LEASEHOLDS AFTER THE UNITED STATES HAD ACQUIRED
THEM. 

IN ADDITION TO THE WEIGHT PROPERLY TO BE ACCORDED TO THE CONCLUSIONS
OF THE TWO COURTS BELOW THAT WASHINGTON IMPOSES A HIGHER TAX ON WHERRY
ACT LEASEHOLDS THAN ON OTHER SIMILAR LEASEHOLDS, IT IS EMINENTLY CLEAR
THAT THIS IS SO.  SECTION 84.40.030 OF THE REVISED CODE OF WASHINGTON
PROVIDES THAT ALL PROPERTY SHALL BE ASSESSED AT 50 PERCENT OF ITS FAIR
VALUE, AND THAT "TAXABLE LEASEHOLD ESTATES SHALL BE VALUED AT SUCH
PRICE AS THEY WOULD BRING AT A FAIR, VOLUNTARY SALE FOR CASH." 
CONSONANT WITH THAT STATUTE, THE WASHINGTON SUPREME COURT HAS
CONSISTENTLY HELD, SAVE AS TO WHERRY ACT LEASEHOLDS, THAT ALL
LEASEHOLDS, INCLUDING LEASEHOLDS ON THE STATE'S OWN TAX-EXEMPT LANDS,
ARE TO BE VALUED FOR TAX PURPOSES ON THE BASIS OF THEIR FAIR MARKET
VALUE, CONSIDERING THEIR BURDENS AS WELL AS THEIR BENEFITS. 
METROPOLITAN BUILDING CO. V. KING COUNTY, 72 WASH. 47, 129 P. 883;
METROPOLITAN BUILDING CO. V. KING COUNTY, 64 WASH. 615, 117 P. 495;
METROPOLITAN BUILDING CO. V. KING COUNTY, 62 WASH.  409, 113 P. 1114. 
AND SEE BELLINGHAM COMMUNITY HOTEL CO. V. WHATCOM COUNTY, 190 WASH.
609, 612-613, 70 P.2D 301, 303, AND DEXTER HORTON BLDG. CO. V. KING
COUNTY, 10 WASH. 2D 186, 116 P.2D 507. 

EVEN THE FACTS OF THE METROPOLITAN CASES ARE REMARKABLY SIMILAR TO
THE FACTS HERE.  THERE THE METROPOLITAN COMPANY ACQUIRED A 50-YEAR
LEASE OF LAND OWNED BY THE STATE.  AS REQUIRED BY THE LEASE, THE LESSEE
ERECTED VERY SUBSTANTIAL IMPROVEMENTS UPON THE LAND - FUNDING THEIR
COST WITH A LARGE ISSUE OF MORTGAGE BONDS - WHICH IMPROVEMENTS,
IMMEDIATELY UPON COMPLETION, BECAME THE PROPERTY OF THE STATE.  IN THE
FIRST OF THOSE CASES, 62 WASH. 409, 113 P. 1114, THE COURT HELD THAT
THE LEASEHOLD SHOULD NOT BE ASSESSED AT A "SPECULATIVE" VALUE, BUT AT
ITS "ACTUAL  ...  VALUE IN MONEY ...  ," AND THAT IT WAS ERROR TO
ASSESS IT AT THE VALUE OF THE IMPROVEMENTS.  IN THE TWO LATER
METROPOLITAN CASES (64 WASH. 615, 117 P. 495; 72 WASH. 47, 129 P. 883),
THE COURT EMPHASIZED THAT, IN DETERMINING THE FAIR MARKET VALUE OF THE
LEASEHOLD, CONSIDERATION MUST BE GIVEN TO ITS BURDENS, INCLUDING
MORTGAGES UPON IT, AS WELL AS TO ITS BENEFITS. 

YET, WITHOUT OVERRULING OR DEPARTING THOSE CASES WITH RESPECT TO
STATE-CREATED LEASEHOLDS, THE WASHINGTON SUPREME COURT HELD IN MOSES
LAKE HOMES, INC., V. GRANT COUNTY, 51 WASH. 2D 285, 317 P.2D 1069, THAT
WHERRY ACT LEASEHOLDS ARE TAXABLE AT "THE FULL VALUE OF THE BUILDINGS
AND IMPROVEMENTS" THEREON.  IT FELT BOUND, AS IT SAID, TO APPLY THAT
SPECIAL VALUATION RULE TO WHERRY ACT LEASEHOLDS BECAUSE OF OUR OPINION
IN OFFUTT HOUSING CO. V. SARPY COUNTY, 351 U.S. 253.  IN THIS, THE
WASHINGTON SUPREME COURT MISTAKENLY READ AND MISAPPLIED THE OFFUTT
CASE.  NOTHING IN THAT CASE REQUIRES THE STATES TO ASSESS WHERRY ACT
LEASEHOLDS ON THE BASIS OF THE VALUE OF THE IMPROVEMENTS THEREON.  IN
THIS RESPECT, IT HOLDS ONLY THAT SUCH A VALUATION IS NOT
UNCONSTITUTIONAL PER SE.  THAT CASE DID NOT INVOLVE ANY ISSUE OR
QUESTION OF DISCRIMINATION.  IT INVOLVED THE LAW OF NEBRASKA WHICH
REQUIRES ALL LEASEHOLDS IN TAX-EXEMPT PROPERTY TO BE ASSESSED AT THE
FULL VALUE OF THE BUILDINGS AND IMPROVEMENTS THEREON, AND THE OFFUTT
CASE HELD THAT SUCH MIGHT CONSTITUTIONALLY BE DONE.  IT DID NOT HOLD,
AS THE SUPREME COURT OF WASHINGTON HAS CONSTRUED IT IN THE MOSES LAKE
CASE, THAT A STATE MIGHT CONSTITUTIONALLY DISCRIMINATE AGAINST
LEASEHOLDS ON FEDERALLY OWNED LANDS IN FAVOR OF LEASEHOLDS ON STATE
OWNED LANDS. 

IF ANYTHING IS SETTLED IN THE LAW, IT IS THAT A STATE MAY NOT
DISCRIMINATE AGAINST THE FEDERAL GOVERNMENT OR ITS LESSEES.  SEE, E.G.,
PHILLIPS CO. V. DUMAS SCHOOL DISTRICT, 361 U.S. 376; UNITED STATES V.
CITY OF DETROIT, 355 U.S. 466, 473; CITY OF DETROIT V. MURRAY CORP.,
355 U.S. 489.  IN UNITED STATES V. CITY OF DETROIT, SUPRA, WE SAID: 

"IT STILL REMAINS TRUE, AS IT HAS FROM THE BEGINNING, THAT A TAX MAY
BE INVALID EVEN THOUGH IT DOES NOT FALL DIRECTLY ON THE UNITED STATES
IF IT OPERATES SO AS TO DISCRIMINATE AGAINST THE GOVERNMENT OR THOSE
WITH WHOM IT DEALS."  355 U.S., AT 473. 

THE DUMAS CASE, SUPRA, IS CLOSELY IN POINT AND CONTROLLING.  THERE
THE STATE OF TEXAS TAXED THE LEASEHOLD ESTATE OF A GOVERNMENT LESSEE AT
THE "FULL VALUE OF THE LEASED PREMISES" (361 U.S., AT 378), WHILE IT
IMPOSED "A DISTINCTLY LESSER BURDEN ON SIMILARLY SITUATED LESSEES OF
EXEMPT PROPERTY OWNED BY THE STATE AND ITS POLITICAL SUBDIVISIONS." 
361 U.S., AT 379.  WE THERE SAID, "IT DOES NOT SEEM TOO MUCH TO REQUIRE
THAT THE STATE TREAT THOSE WHO DEAL WITH THE GOVERNMENT AS WELL AS IT
TREATS THOSE WITH WHOM IT DEALS ITSELF," 361 U.S., AT 385, AND WE HELD
THE TAX TO BE VOID BECAUSE IT "DISCRIMINATES UNCONSTITUTIONALLY AGAINST
THE UNITED STATES AND ITS LESSEES."  361 U.S., AT 379.  THAT CASE IS
INDISTINGUISHABLE FROM THIS ONE ON THE POINT HERE. 

THE COURT OF APPEALS WAS ALSO IN ERROR IN HOLDING THAT "THE FACT THAT
THE TAXES ARE HIGHER DOES NOT INVALIDATE THE ENTIRE TAX BUT ONLY
REQUIRES THAT THE AMOUNT COLLECTIBLE BE REDUCED TO WHAT IT WOULD HAVE
BEEN IF THE TAX HAD BEEN LEVIED ON A NON-WHERRY ACT LEASEHOLD BASIS"
(276 F.2D, AT 847), AND IN REMANDING THE CASE TO THE DISTRICT COURT TO
MAKE THE NECESSARY ADJUSTMENT.  WE HELD IN THE DUMAS CASE, SUPRA, THAT
A DISCRIMINATORY TAX IS VOID AND "MAY NOT BE EXACTED."  361 U.S., AT
387.  THE EFFECT OF THE COURT'S REMAND WAS TO DIRECT THE DISTRICT COURT
TO DECREE A VALID TAX FOR THE INVALID ONE WHICH THE STATE HAD ATTEMPTED
TO EXACT.  THE DISTRICT COURT HAS NO POWER SO TO DECREE.  FEDERAL
COURTS MAY NOT ASSESS OR LEVY TAXES.  ONLY THE APPROPRIATE TAXING
OFFICIALS OF GRANT COUNTY MAY ASSESS AND LEVY TAXES ON THESE
LEASEHOLDS, AND THE FEDERAL COURTS MAY DETERMINE, WITHIN THEIR
JURISDICTION, ONLY WHETHER THE TAX LEVIED BY THOSE OFFICIALS IS OR IS
NOT A VALID ONE.  WHEN, AS HERE, THE TAX IS INVALID, IT "MAY NOT BE
EXACTED."  PHILLIPS CO. V. DUMAS SCHOOL DISTRICT, 361 U.S., AT 387. 

NOR IS THERE ANY MERIT IN RESPONDENT'S CONTENTION THAT THE OPINION
AND JUDGMENT OF THE SUPREME COURT OF WASHINGTON IN THE MOSES LAKE CASE,
SUPRA, IS RES JUDICATA OF THE COUNTY'S TAX CLAIMS AGAINST THE MOSES
LAKE LEASEHOLD FOR AT LEAST THE YEARS 1955 AND 1956.  THIS IS SO
BECAUSE NO TAX WHATEVER HAD BEEN ASSESSED AND LEVIED AGAINST THE MOSES
LAKE LEASEHOLD, AND HENCE NO ISSUE OF DISCRIMINATION WAS OR COULD HAVE
BEEN PRESENTED AND ADJUDICATED IN THAT CASE. 

INASMUCH AS THE TAXES, PRESENTLY ASSESSED AND LEVIED, DISCRIMINATE
UNCONSTITUTIONALLY AGAINST THE UNITED STATES AND ITS LESSEES, THEY ARE
VOID, AND HENCE MAY NOT BE EXACTED.  REVERSED.    FN1  THE MOSES LAKE
LEASE WAS ENTERED INTO ON MAY 31, 1950, THE LARSONAIRE LEASE ON AUGUST
6, 1953, AND THE LARSON HEIGHTS LEASE ON AUGUST 2, 1954. 

FN2  SECTION 84.40.080 OF THE REVISED CODE OF WASHINGTON PROVIDES, IN
RELEVANT PART, AS FOLLOWS: 

"THE ASSESSOR  ...  SHALL ENTER IN THE DETAIL AND ASSESSMENT LIST OF
THE CURRENT YEAR ANY PROPERTY SHOWN TO HAVE BEEN OMITTED FROM THE
ASSESSMENT LIST OF ANY PRECEDING YEAR, AT THE VALUATION OF THAT YEAR,
OR IF NOT THEN VALUED, AT SUCH VALUATION AS THE ASSESSOR SHALL
DETERMINE FROM THE PRECEDING YEAR  ...  .  WHEN SUCH AN OMITTED
ASSESSMENT IS MADE, THE TAXES LEVIED THEREON MAY BE PAID WITHIN ONE
YEAR OF THE DUE DATE OF THE TAXES FOR THE YEAR IN WHICH THE ASSESSMENT
IS MADE WITHOUT PENALTY OR INTEREST." 

FN3  THE COUNTY'S TAX CLAIMS AGAINST PETITIONERS' LEASEHOLDS WERE AS
FOLLOWS:  MOSES LAKE, $142,285.73; LARSONAIRE, $68,838; AND LARSON
HEIGHTS, $47,088. 

FN4  THE DEPOSITED SUM OF $253,000 WAS ALLOCATED AMONG THE THREE
PETITIONERS AS FOLLOWS: MOSES LAKE, $126,500; LARSONAIRE, $65,300; AND
LARSON HEIGHTS, $61,200.  THUS, THE COUNTY'S CLAIMS AGAINST THE MOSES
LAKE AND LARSONAIRE LEASEHOLDERS WERE GREATER THAN THE AMOUNT DEPOSITED
BY THE UNITED STATES AS THEIR REASONABLE VALUE.  SEE NOTE 3.  HAD THE
COUNTY BEEN SUCCESSFUL ON ALL ITEMS OF ITS CLAIM, IT WOULD HAVE
RECEIVED ALL BUT $14,112 OF THE DEPOSITED SUM. 

FN5  SEE NOTE 4. 

FN6  SECTION 408 OF THE HOUSING AMENDMENTS OF 1955, AS AMENDED BY
SEC. 511 OF THE HOUSING ACT OF 1956 (70 STAT. 1091, C. 1029, 42 U.S.C.
(1958 ED.)  SEC.  1594, NOTE), CONTAINS THE FOLLOWING RELEVANT
PROVISION: 

"  ...  NOTHING CONTAINED IN THE PROVISIONS OF TITLE VIII OF THE
NATIONAL HOUSING ACT IN EFFECT PRIOR TO AUGUST 11, 1955, OR ANY RELATED
PROVISION OF LAW, SHALL BE CONSTRUED TO EXEMPT FROM STATE OR LOCAL
TAXES OR ASSESSMENTS THE INTEREST OF A LESSEE FROM THE FEDERAL
GOVERNMENT IN OR WITH RESPECT TO ANY PROPERTY COVERED BY A MORTGAGE
INSURED UNDER SUCH PROVISIONS OF TITLE VIII: PROVIDED, THAT, NO SUCH
TAXES OR ASSESSMENTS (NOT PAID OR ENCUMBERING SUCH PROPERTY OR INTEREST
PRIOR TO JUNE 15, 1956) ON THE INTEREST OF SUCH LESSEE SHALL EXCEED THE
AMOUNT OF TAXES OR ASSESSMENTS ON OTHER SIMILAR PROPERTY OF SIMILAR
VALUE  ...  ." 
..END :




















BULOVA WATCH CO. V. UNITED STATES  365 U.S. 753 


NO. 241.  ARGUED MARCH 27, 1961 - DECIDED APRIL 17, 1961 - AFFIRMED. 


WHEN THE COURT OF CLAIMS HAS AWARDED A JUDGMENT AGAINST THE UNITED
STATES TO A TAXPAYER FOR AN OVERPAYMENT OF EXCESS PROFITS TAXES, PLUS
INTEREST THEREON "AS PROVIDED BY LAW," DETERMINATION OF THE ALLOWANCE
OF INTEREST ON SO MUCH OF THE OVERPAYMENT AS WAS ATTRIBUTABLE TO AN
UNUSED EXCESS PROFITS CREDIT CARRY-BACK IS GOVERNED BY SEC. 3771(E) OF
THE INTERNAL REVENUE CODE OF 1939, DEALING SPECIFICALLY WITH INTEREST
ON OVERPAYMENTS RESULTING FROM CARRY-BACKS, RATHER THAN BY 28 U.S.C.
SEC. 2411(A), RELATING TO INTEREST ON JUDGMENTS FOR TAX OVERPAYMENTS
GENERALLY.  PP. 753-761. 

BULOVA WATCH CO., INC., V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

PETITIONER RECOVERED A JUDGMENT IN THE COURT OF CLAIMS AGAINST THE
UNITED STATES FOR AN OVERPAYMENT OF ITS EXCESS PROFITS TAXES FOR THE
FISCAL YEAR ENDED MARCH 31, 1942, IN THE AMOUNT OF $211,899.28, PLUS
INTEREST THEREON "AS PROVIDED BY LAW."  143 CT. CL. 342, 163 F. SUPP.
633.  OF THE PRINCIPAL SUM OF THE JUDGMENT, $150,016.21 WAS
ATTRIBUTABLE TO AN UNUSED EXCESS PROFITS CREDIT CARRY-BACK FROM THE
SUCCEEDING YEAR ENDED MARCH 31, 1943. 

ACTING IN ACCORDANCE WITH THE PROVISIONS OF SEC. 3771(E) OF THE
INTERNAL REVENUE CODE OF 1939, THE COMMISSIONER COMPUTED AND ALLOWED
STATUTORY INTEREST ON THE LATTER SUM FROM JUNE 14, 1945, THE DATE ON
WHICH PETITIONER FILED ITS CLAIM FOR REFUND, TO APRIL 25, 1959 - 30
DAYS PRIOR TO ISSUANCE OF THE REFUND CHECK - IN THE AMOUNT OF
$124,784.72.  THEREAFTER, PETITIONER MOVED THE COURT OF CLAIMS FOR
RELIEF FROM THE COMMISSIONER'S INTERPRETATION OF THE JUDGMENT,
CONTENDING THAT INTEREST SHOULD BE COMPUTED, UNDER THE PROVISIONS OF 28
U.S.C. SEC. 2411(A), FROM THE EARLIEST DATE THE OVERPAYMENT COULD HAVE
BEEN DETERMINED (THE END OF THE FISCAL YEAR SUBSEQUENT TO THE YEAR
INVOLVED, I.E., MARCH 31, 1943), RATHER THAN FROM THE DATE IT FILED ITS
CLAIM FOR REFUND (JUNE 14, 1945) AS PROVIDED IN SEC. 3771(E), AND THAT
IT WAS THUS ENTITLED TO THE FURTHER SUM OF $51,252.69.  THE MOTION WAS
DENIED, WITHOUT OPINION. 

BECAUSE OF THE IMPORTANCE OF THE QUESTION INVOLVED TO THE PROPER
ADMINISTRATION OF THE INTERNAL REVENUE LAWS, AND TO SETTLE A CONFLICT
BETWEEN THE LOWER FEDERAL COURTS UPON THE QUESTION, (FN1) WE GRANTED
CERTIORARI.  364 U.S. 861. 

THE QUESTION THUS PRESENTED IS WHETHER THE DATE FROM WHICH INTEREST
ACCRUES ON AN OVERPAYMENT OF TAXES ATTRIBUTABLE TO AN UNUSED EXCESS
PROFITS CREDIT CARRY-BACK IS GOVERNED BY SEC. 3771(E) (FN2) OF THE
INTERNAL REVENUE CODE OF 1939, OR BY 28 U.S.C. SEC. 2411(A).  (FN3) 

PETITIONER CONTENDS THAT, BECAUSE REFUND OF THE TAX WAS NOT AWARDED
ADMINISTRATIVELY BUT BY THE "JUDGMENT OF A COURT," THE DATE FROM WHICH
INTEREST RUNS IS GOVERNED BY THE PROVISIONS OF SEC. 2411(A), AND THAT
IT IS THUS ENTITLED TO INTEREST FROM "THE DATE OF THE PAYMENT" ON THE
"OVERPAYMENT" WHICH, IT ARGUES, BECAME ASCERTAINABLE AND HENCE SHOULD
BE REGARDED AS MADE, ON MARCH 31, 1943.  (FN4)  THE GOVERNMENT, ON THE
OTHER HAND, CONTENDS THAT SEC. 3771(E) IS A SPECIAL STATUTE RELATING
EXCLUSIVELY TO TAX REFUNDS ATTRIBUTABLE TO THE CARRY-BACK PROVISIONS OF
THE INTERNAL REVENUE LAWS, AND HENCE PREVAILS, AS RESPECTS THE SPECIAL
SUBJECT OF CARRY-BACKS, OVER THE GENERAL PROVISIONS OF SEC. 2411(A). 
AFTER A CAREFUL REVIEW OF THESE AND OTHER STATUTES AND THEIR
LEGISLATIVE HISTORY, WE HAVE CONCLUDED THAT THE GOVERNMENT IS RIGHT. 

OF INTEREST ON TAX REFUNDS ATTRIBUTABLE TO THE CARRY-BACK OF A NET
OPERATING LOSS OR AN UNUSED EXCESS PROFITS TAX CREDIT, AND IS "AN
INTEGRAL PART OF THE CARRY-BACK PROVISIONS" OF THE INTERNAL REVENUE
LAWS.  MANNING V. SEELEY TUBE & BOX CO., 338 U.S. 561, 568.  IT
SPECIFICALLY SAYS THAT "IF THE COMMISSIONER DETERMINES THAT ANY PART OF
AN OVERPAYMENT IS ATTRIBUTABLE TO  ...  AN UNUSED EXCESS PROFITS CREDIT
FOR A SUCCEEDING TAXABLE YEAR, NO INTEREST SHALL BE ALLOWED OR PAID
WITH RESPECT TO SUCH PART OF THE OVERPAYMENT FOR ANY PERIOD BEFORE THE
FILING OF A CLAIM FOR CREDIT OR REFUND OF SUCH PART OF THE OVERPAYMENT
OR THE FILING OF A PETITION WITH THE TAX COURT, WHICHEVER IS EARLIER." 
THE REFUND AWARDED HERE WAS SOLELY "ATTRIBUTABLE TO AN UNUSED EXCESS
PROFITS CREDIT FOR THE SUCCEEDING TAXABLE YEAR."  HOW, THEN, CAN
PETITIONER BE ENTITLED TO INTEREST "FOR ANY PERIOD BEFORE THE FILING OF
A CLAIM FOR CREDIT OR REFUND"? 

PETITIONER AGREES THAT IF ITS AWARD HAD BEEN MADE ADMINISTRATIVELY BY
THE COMMISSIONER OR THE TAX COURT, (FN5) RATHER THAN BY THE "JUDGMENT"
OF THE COURT OF CLAIMS, INTEREST WOULD NOT BE ALLOWABLE ON THE REFUND
FOR ANY PERIOD PRIOR TO THE FILING OF ITS CLAIM.  BUT IT ARGUES THAT
THE LANGUAGE OF SEC. 2411(A) - "IN ANY JUDGMENT OF ANY COURT RENDERED
...  FOR ANY OVERPAYMENT IN RESPECT OF ANY INTERNAL-REVENUE TAX,
INTEREST SHALL BE ALLOWED  ...  UPON THE AMOUNT OF THE OVERPAYMENT,
FROM THE DATE OF THE PAYMENT OR COLLECTION THEREOF" (FN6) - REQUIRES
THE ALLOWANCE OF INTEREST "FROM THE DATE OF THE PAYMENT OR COLLECTION"
OF THE TAX WHEN RECOVERY IS AWARDED BY A DISTRICT COURT OR, AS HERE, BY
THE COURT OF CLAIMS.  THE EFFECT OF PETITIONER'S CONTENTION THUS IS
THAT CONGRESS HAS MADE THE STARTING DATE OF INTEREST IN SUCH CASES
DEPENDENT UPON THE FORUM SELECTED BY THE TAXPAYER.  ITS ARGUMENT WOULD
MEAN - IN FACT, IT FRANKLY PROCEEDS ON THE THEORY - THAT A TAXPAYER,
HOLDING A REFUND CLAIM ATTRIBUTABLE TO AN UNUSED EXCESS PROFITS CREDIT,
COULD, BY PROCEEDING IN A DISTRICT COURT OR THE COURT OF CLAIMS,
RECOVER INTEREST FROM THE DATE WHEN A CLAIM FOR REFUND COULD HAVE BEEN
FILED, YET IF HE PROCEEDED THROUGH THE TAX COURT HE COULD NOT RECOVER
INTEREST FOR ANY PERIOD PRIOR TO THE ACTUAL FILING OF HIS CLAIM, EVEN
THOUGH THE TAX COURT'S FINAL JUDGMENTS (OR ORDERS) ARE SUBJECT TO
REVIEW BY THE UNITED STATES COURTS OF APPEALS AND ULTIMATELY BY THIS
COURT.  IN THE LIGHT OF THE PROVISIONS OF SEC. 3771(E) AND ITS
LEGISLATIVE HISTORY, IT IS ALMOST CERTAIN THAT CONGRESS DID NOT INTEND
SUCH AN ANOMALOUS, NONUNIFORM AND DISCRIMINATORY RESULT. 

PETITIONER FURTHER CONTENDS THAT SEC. 2411(A) IS A LATER ENACTMENT
THAN SEC. 3771(E) AND, FOR THAT REASON, SHOULD TAKE PRECEDENCE OVER IT.
WE DO NOT BELIEVE THAT SEC. 2411(A) CAN FAIRLY BE REGARDED AS A LATER
ENACTMENT THAN SEC. 3771(E), FOR AT THE TIME SEC. 3771(E) WAS ENACTED,
IN 1942, A PREDECESSOR PROVISION OF SEC. 2411(A) HAD LONG BEEN ON THE
BOOKS.  SAVE FOR THE WORD "HEREBY" - OF NO POSSIBLE SIGNIFICANCE - THAT
PREDECESSOR PROVISION (SEC. 177(B) OF THE JUDICIAL CODE, 28 U.S.C.
(1940 ED.)  SEC.  284(B)) WAS IDENTICAL WITH THE PRESENT SEC. 2411(A). 
(FN7)  BUT EVEN IF PETITIONER WERE CORRECT IN CONCLUDING THAT SEC.
2411(A) IS TO BE REGARDED AS THE LATER ENACTMENT, IT WOULD NOT
NECESSARILY TAKE PRECEDENCE OVER SEC. 3711(E), FOR IT IS FAMILIAR LAW
THAT A SPECIFIC STATUTE CONTROLS OVER A GENERAL ONE "WITHOUT REGARD TO
PRIORITY OF ENACTMENT."  TOWNSEND V. LITTLE, 109 U.S. 504, 512.  SEE,
E.G., GINSBERG & SONS V. POPKIN, 285 U.S. 204, 208; MACEVOY CO. V.
UNITED STATES, 322 U.S. 102, 107; FOURCO GLASS CO. V. TRANSMIRRA CORP.,
353 U.S. 222, 228-229. 

RUN ON CARRY-BACK REFUNDS.  IT CAME INTO THE LAW WITH THE REVENUE ACT
OF 1942, WHICH AUTHORIZED CARRY-BACKS.  A CARRY-BACK IS AN EXCEPTIONAL
RELIEF MEASURE IN THAT IT PERMITS A DEPARTURE FROM THE BASIC ANNUAL
ACCOUNTING RULE.  THE CARRY-BACK PROVISIONS "WERE ENACTED TO AMELIORATE
THE UNDULY DRASTIC CONSEQUENCES OF TAXING INCOME STRICTLY ON AN ANNUAL
BASIS.  THEY WERE DESIGNED TO PERMIT A TAXPAYER TO SET OFF ITS LEAN
YEARS AGAINST ITS LUSH YEARS, AND TO STRIKE SOMETHING LIKE AN AVERAGE
TAXABLE INCOME COMPUTED OVER A PERIOD LONGER THAN ONE YEAR."  LIBSON
SHOPS, INC., V. KOEHLER, 353 U.S. 382, 386. 

THE SIGNIFICANT FEATURE OF A CARRY-BACK IS THAT IT PERMITS AN
ADJUSTMENT OF AN EARLIER LIABILITY UPON THE BASIS OF SUBSEQUENT
EVENTS.  IT CONTEMPLATES THAT THE INITIAL TAX OBLIGATION WAS NOT
INCORRECTLY OR MISTAKENLY IMPOSED BUT WAS ACTUALLY DUE, BUT THAT AN
ADJUSTMENT MAY BE MADE UPON THE BASIS OF THE TAXPAYER'S GAIN OR LOSS IN
THE SUCCEEDING YEAR OR YEARS, AND IT IS EVIDENT FROM THE VERY TERMS OF
SEC. 3771(E) THAT THE CONGRESS THOUGHT IT WOULD BE UNFAIR TO THE
GOVERNMENT TO REQUIRE IT TO PAY INTEREST ON A CLAIM BROUGHT ABOUT BY
SUCH A RETROACTIVE ADJUSTMENT PRIOR TO THE TIME WHEN THE TAXPAYER TOOK
AFFIRMATIVE STEPS TO BRING HOME TO THE COMMISSIONER THAT HE IS NOW IN
POSITION TO CLAIM, AND CLAIMS, A READJUSTMENT OF HIS PAT ADMITTEDLY
CORRECT TAX LIABILITY.  SECTION 3771(E) DOES NOT, OF COURSE, DENY
INTEREST ON CARRY-BACK REFUNDS.  IT ONLY PROHIBITS THE ACCRUAL OF
INTEREST PRIOR TO THE TIME THE TAXPAYER'S CLAIM THEREFOR IS FILED WITH,
AND THUS MADE KNOWN TO, THE COMMISSIONER. 

THE REPORT OF THE SENATE FINANCE COMMITTEE ON THE BILL TAHT BECAME
SEC. 3771(E) CLEARLY DISCLOSES THAT THESE WERE CONGRESS' PURPOSES IN
ADOPTING THE SECTION.  IT SAID: 

"A TAXPAYER ENTITLED TO A CARRY-BACK OF A NET OPERATING LOSS OR AN
UNUSED EXCESS PROFITS CREDIT (SEE SEC. 204 OF THE BILL) WILL NOT BE
ABLE TO DETERMINE THE DEDUCTION ON ACCOUNT OF SUCH CARRY-BACK UNTIL THE
CLOSE OF THE FUTURE TAXABLE YEAR IN WHICH HE SUSTAINS THE NET OPERATING
LOSS OR HAS THE UNUSED EXCESS PROFITS CREDIT.  HE MUST THEREFORE FILE
HIS RETURN AND PAY HIS TAX WITHOUT REGARD TO SUCH DEDUCTION, AND MUST
FILE A CLAIM FOR REFUND AT THE CLOSE OF THE SUCCEEDING TAXABLE YEAR
WHEN HE IS ABLE TO DETERMINE THE AMOUNT OF SUCH CARRY-BACK.  INASMUCH
AS ANY OVERPAYMENT RESULTING FROM THE DEDUCTION OF SUCH CARRY-BACK DOES
NOT OCCUR, AS A PRACTICAL MATTER, UNTIL THE NET OPERATING LOSS OR THE
UNUSED EXCESS PROFITS CREDIT FOR THE FUTURE TAXABLE YEAR IS DETERMINED,
AND INASMUCH AS IT IS DESIRABLE TO INSURE PROMPTNESS IN THE FILING OF
CLAIMS TO INFORM THE COMMISSIONER THAT SUCH DEDUCTIONS HAVE BEEN
DETERMINED, THIS SECTION PROVIDES THAT NO INTEREST WILL BE ALLOWED WITH
RESPECT TO ANY SUCH OVERPAYMENT FOR ANY PERIOD BEFORE THE CLAIM
THEREFOR IS FILED, OR A PETITION ASSERTING SUCH OVERPAYMENT IS FILED
WITH THE BOARD OF TAX APPEALS, WHICHEVER IS EARLIER."  (FN8) 

THIS SURELY SHOWS CONGRESS' PURPOSE TO DENY INTEREST ON CARRY-BACK
REFUNDS FOR ANY PERIOD PRIOR TO THE TIME THEY COULD BE DETERMINED, AND
ALSO TO PREVENT, THROUGH DELAY IN THE PRESENTATION OF CLAIMS, THE
ACCUMULATION OF INTEREST AFTER THAT DATE AND PRIOR TO THE FILING OF THE
CLAIM.  (FN9) 

IN PROVIDING, IN SEC. 6611(F) OF THE 1954 INTERNAL REVENUE CODE, THAT
OVERPAYMENTS RESULTING FROM THE CARRY-BACK OF NET OPERATING LOSSES
"SHALL BE DEEMED NOT TO HAVE BEEN MADE PRIOR TO THE CLOSE OF THE
TAXABLE YEAR IN WHICH SUCH NET OPERATING LOSS ARISES," CONGRESS
RECOGNIZED THAT IT WAS MAKING A CHANGE FROM EXISTING LAW.  THE RELEVANT
COMMITTEE REPORT (FN10) MAKES THIS CLEAR.  IT SAID, IN PERTINENT PART,
THAT: 

"EXISTING LAW DENIES INTEREST ON AN OVERPAYMENT CAUSED BY A CARRY
BACK FOR ANY PERIOD PRIOR TO THE FILING OF A CLAIM FOR CREDIT OR REFUND
OF SUCH AMOUNT (OR FILING A PETITION WITH THE TAX COURT WITH RESPECT TO
SUCH AMOUNT).  UNDER THIS PROPOSED SECTION, INTEREST IS DENIED ONLY FOR
THE PERIOD PRIOR TO THE CLOSE OF THE TAXABLE YEAR IN WHICH THE NET
OPERATING LOSS ARISES.  THIS IS CONSISTENT WITH THE RULE FOR INTEREST
ON UNDERPAYMENTS (SEE THE DISCUSSION OF SEC. 6601)."  (FN11) 

IN THE LIGHT OF THE PROVISIONS OF SEC. 3771(E) AND ITS CLEAR
LEGISLATIVE HISTORY, WE THINK IT IS A SPECIAL STATUTE RELATING SOLELY
TO, AND EXCLUSIVELY GOVERNING, TAX REFUNDS ATTRIBUTABLE TO THE CARRY
BACK PROVISIONS OF THE INTERNAL REVENUE LAWS, AND HENCE PREVAILS, AS
RESPECTS THE SPECIAL SUBJECT OF CARRY-BACKS, OVER THE GENERAL
PROVISIONS OF SEC. 2411(A).  THE JUDGMENT OF THE COURT OF CLAIMS WAS
THEREFORE CORRECT AND MUST BE AFFIRMED. 

FN1  IN CARTER V. LIQUID CARBONIC PACIFIC CORP., 97 F.2D 1, THE COURT
OF APPEALS FOR THE NINTH CIRCUIT REACHED A RESULT CONTRARY TO THAT
REACHED BY THE COURT OF CLAIMS IN THIS CASE. 

FN2  INTERNAL REVENUE CODE OF 1939: 

"SEC. 3771.  INTEREST ON OVERPAYMENTS. 

"(A)  RATE.  - INTEREST SHALL BE ALLOWED AND PAID UPON ANY
OVERPAYMENT IN RESPECT OF ANY INTERNAL REVENUE TAX AT THE RATE OF 6 PER
CENTUM PER ANNUM. 

"(B)  PERIOD.  - SUCH INTEREST SHALL BE ALLOWED AND PAID AS FOLLOWS: 

"(1)  CREDITS - IN THE CASE OF A CREDIT  ...  . 

"(2)  REFUNDS.  - IN THE CASE OF A REFUND, FROM THE DATE OF THE
OVERPAYMENT TO A DATE PRECEDING THE DATE OF THE REFUND CHECK BY NOT
MORE THAN THIRTY DAYS  ...  . 

     *         *    *         *         * 

"(E)  AS ADDED BY SEC. 153(D), REVENUE ACT OF 1942, C. 619, 56 STAT.
798, 847 CLAIMS BASED ON CARRY-BACK OF LOSS OR CREDIT.  - IF THE
COMMISSIONER DETERMINES THAT ANY PART OF AN OVERPAYMENT IS ATTRIBUTABLE
TO THE INCLUSION IN COMPUTING THE NET OPERATING LOSS DEDUCTION FOR THE
TAXABLE YEAR OF ANY PART OF THE NET OPERATING LOSS FOR A SUCCEEDING
TAXABLE YEAR OR TO THE INCLUSION IN COMPUTING THE UNUSED EXCESS PROFITS
CREDIT ADJUSTMENT FOR THE TAXABLE YEAR OF ANY PART OF THE UNUSED EXCESS
PROFITS CREDIT FOR A SUCCEEDING TAXABLE YEAR, NO INTEREST SHALL BE
ALLOWED OR PAID WITH RESPECT TO SUCH PART OF THE OVERPAYMENT FOR ANY
PERIOD BEFORE THE FILING OF A CLAIM FOR CREDIT OR REFUND OF SUCH PART
OF THE OVERPAYMENT OR THE FILING OF A PETITION WITH THE TAX COURT,
WHICHEVER IS EARLIER." 

FN3  28 U.S.C.: 

"SEC. 2411 (AS AMENDED BY SEC. 120, ACT.  OF MAY 24, 1949, C. 139, 63
STAT. 89, 106).  INTEREST. 

"(A) IN ANY JUDGMENT OF ANY COURT RENDERED (WHETHER AGAINST THE
UNITED STATES, A COLLECTOR OR DEPUTY COLLECTOR OF INTERNAL REVENUE, A
FORMER COLLECTOR OR DEPUTY COLLECTOR, OR THE PERSONAL REPRESENTATIVE IN
CASE OF DEATH) FOR ANY OVERPAYMENT IN RESPECT OF ANY INTERNAL-REVENUE
TAX, INTEREST SHALL BE ALLOWED AT THE RATE OF 6 PER CENTUM PER ANNUM
UPON THE AMOUNT OF THE OVERPAYMENT, FROM THE DATE OF THE PAYMENT OR
COLLECTION THEREOF TO A DATE PRECEDING THE DATE OF THE REFUND CHECK BY
NOT MORE THAN THIRTY DAYS, SUCH DATE TO BE DETERMINED BY THE
COMMISSIONER OF INTERNAL REVENUE.  THE COMMISSIONER IS AUTHORIZED TO
TENDER BY CHECK PAYMENT OF ANY SUCH JUDGMENT, WITH INTEREST AS HEREIN
PROVIDED, AT ANY TIME AFTER SUCH JUDGMENT BECOMES FINAL, WHETHER OR NOT
A CLAIM FOR SUCH PAYMENT HAS BEEN DULY FILED, AND SUCH TENDER SHALL
STOP THE RUNNING OF INTEREST, WHETHER OR NOT SUCH REFUND CHECK IS
ACCEPTED BY THE JUDGMENT CREDITOR."    FN4  IT WILL BE NOTED THAT
PETITIONER STOPS SHORT OF CLAIMING THAT IT IS ENTITLED TO INTEREST FROM
THE DATE IT PAID ITS 1942 EXCESS PROFITS TAX.  IT CLAIMS, RATHER, THAT
INTEREST RUNS FROM THE END OF THE SUCCEEDING TAX YEAR THAT GAVE RISE TO
THE CARRY-BACK (I.E., MARCH 31, 1943).  THE GOVERNMENT'S POSITION, ON
THE OTHER HAND, IS THAT THE INTEREST RUNS FROM JUNE 14, 1945, THE DATE
ON WHICH THE REFUND CLAIM WAS FIRST PRESENTED. 

FN5  PETITIONER POINTS TO THE FACT THAT IN LASKY V. COMMISSIONER, 352
U.S. 1027, THE TAX COURT WAS HELD TO BE AN ADMINISTRATIVE AGENCY. 

FN6  PETITIONER DOES NOT IN FACT CLAIM INTEREST FROM THE DATE IT
ACTUALLY PAID ITS EXCESS PROFITS TAXES FOR THE YEAR 1942 BUT, RATHER,
FROM THE END OF THE SUCCEEDING TAX YEAR THAT GAVE RISE TO THE CARRY
BACK, I.E., MARCH 31, 1943.  SEE N. 4. 

FN7  THE HISTORY OF 28 U.S.C. SEC. 2411(A) AND ITS PREDECESSOR
PRIVISIONS GOES BACK TO 1911.  SEE SEC. 177(B) OF THE JUDICIAL CODE,
ENACTED IN 1911 (C. 231, 36 STAT. 1141), AS AMENDED BY THE REVENUE ACT
OF 1921 (C. 136, 42 STAT. 227, SEC. 1324(B)), AS FURTHER AMENDED BY THE
REVENUE ACT OF 1926 (C. 27, 44 STAT. 9, SEC. 1117).  FURTHER AMENDMENTS
OCCURRED IN 1928 (45 STAT. 791, SEC. 615) AND IN 1936 (49 STAT. 1648,
SEC. 808).  THE 1948 CODIFICATION OMITTED FROM THE JUDICIAL CODE ALL
REFERENCE TO INTEREST ON TAX OVERPAYMENTS, BUT, BY A CORRECTION ACT IN
1949 (C. 139, 63 STAT. 89, SEC. 120), CONGRESS RESTORED THE SECTION TO
THE JUDICIAL CODE AS SEC. 2411(A).  THE ONLY DIFFERENCE BETWEEN SEC.
177(B) AS IT STOOD IN 1942, AND SEC. 2411(A) AS IT STANDS TODAY, IS
THAT THE WORD "HEREBY" NO LONGER APPEARS.  THUS, SEC. 3771(E) IS NOT
ONLY THE SPECIFIC ENACTMENT DESIGNED TO CONTROL THE SUBJECT OF INTEREST
IN CARRY-BACK CASES, BUT IT IS ALSO A LATER ENACTMENT THAN SEC.
2411(A). 

FN8  S. REP. NO. 1631, 77TH CONG., 2D SESS., PP. 123-124. 

FN9  THAT CONGRESS DID NOT PROPOSE TO ALLOW INTEREST FOR ANY PERIOD
PRIOR TO PRESENTMENT OF THE CLAIM IS FURTHER CONFIRMED BY THE
PROVISIONS OF SEC. 6 OF THE TAX ADJUSTMENT ACT OF 1945, C. 340, 59
STAT. 517, AMENDING SEC. 3771(E).  SECTION 4 OF THAT ACT ADDED A NEW
TENTATIVE CARRY-BACK ADJUSTMENTS.  THE CONCURRENT AMENDMENT OF SEC.
3771(E) SPECIFIES THAT INTEREST SHALL NOT START TO RUN PRIOR TO THE
DATE APPLICATION IS MADE FOR THE TENTATIVE CARRY-BACK ADJUSTMENTS. 

FN10  H.R. REP. NO. 1337, 83D CONG., 2D SESS., P. A418. 

FN11  SECTION 6601(E) PROVIDES THAT IF THE AMOUNT OF TAX IS REDUCED
BY A CARRY-BACK LOSS, THE REDUCTION SHALL NOT AFFECT THE INTEREST
PAYABLE THEREON BY THE TAXPAYER FOR THE PERIOD ENDING WITH THE CLOSE OF
THE YEAR IN WHICH THE LOSS ARISES.  SECTION 292(C) OF THE 1939 CODE
(ADDED BY SEC. 6 OF THE TAX ADJUSTMENT ACT OF 1945, C. 340, 59 STAT.
517) PROVIDED:  "IF ANY PART OF A DEFICIENCY IS DETERMINED BY THE
COMMISSIONER TO BE ATTRIBUTABLE  ...  TO A CARRY-BACK TO WHICH AN
OVERPAYMENT DESCRIBED IN SECTION 3771(E)  ...  IN ANY OTHER TAX IS
ATTRIBUTABLE  ...  NO INTEREST SHALL BE ASSESSED OR PAID UNDER
SUBSECTION (A) PROVIDING THAT INTEREST IS PAYABLE ON A DEFICIENCY FROM
THE DATE PRESCRIBED FOR THE PAYMENT OF THE TAX WITH RESPECT TO SUCH
PART OF THE DEFICIENCY FOR ANY PERIOD DURING WHICH INTEREST WAS NOT
ALLOWED WITH RESPECT TO SUCH OVERPAYMENT  ...  ." 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :





















COPPOLA V. UNITED STATES 365 U.S. 762 


NO. 153.  ARGUED MARCH 27, 1961 - DECIDED APRIL 17, 1961 - 281 F.2D 340,
360, AFFIRMED. 


CERTIORARI WAS GRANTED IN THIS CASE IN THE BELIEF THAT IT PRESENTED A
QUESTION UNDER ANDERSON V. UNITED STATES, 318 U.S. 350.  AFTER HEARING
ORAL ARGUMENT AND FULLY EXAMINING THE TRANSCRIPT OF THE PROCEEDINGS IN
THE TRIAL COURT, HELD:  THE PARTICULAR FACTS OF THIS CASE ARE NOT RULED
BY THE ANDERSON CASE, THERE IS NO MERIT IN THE OTHER ARGUMENT ADVANCED
BY PETITIONER, AND THE JUDGMENTS BELOW ARE AFFIRMED. 

COPPOLA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

WE BROUGHT THIS CASE HERE, 364 U.S. 813, BELIEVING THAT IT PRESENTED
A QUESTION UNDER ANDERSON V. UNITED STATES, 318 U.S. 350.  AFTER
HEARING ORAL ARGUMENT AND FULLY EXAMINING THE TRANSCRIPT OF THE
PROCEEDINGS IN THE TRIAL COURT, WE CONCLUDE THAT THE PARTICULAR FACTS
OF THE CASE ARE NOT RULED BY ANDERSON.  WE FIND NO MERIT IN THE OTHER
ARGUMENT ADVANCED BY THE PETITIONER.  AFFIRMED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

PETITIONER HAS BEEN CONVICTED OF PARTICIPATING IN TWO DIFFERENT BANK
ROBBERIES IN VIOLATION OF 18 U.S.C. SEC. 2113.  IN EACH CASE
PETITIONER'S CONFESSIONS OBTAINED BY AGENTS OF THE F.B.I. WERE ADMITTED
AGAINST HIM.  THESE CONFESSIONS WERE MADE DURING AN INTERROGATION
TAKING PLACE IN THE BUFFALO POLICE HEADQUARTERS WHILE PETITIONER WAS
UNDER DETENTION BY LOCAL POLICE. 

PETITIONER WAS NO STRANGER TO THE F.B.I.  ONE OF THE BANK ROBBERIES
CHARGED AGAINST PETITIONER OCCURRED IN FEBRUARY 1956, THE OTHER IN
OCTOBER OF THAT YEAR.  THE F.B.I. HAD FIRST COME INTO CONTACT WITH
PETITIONER WHEN, AT THEIR REQUEST, HE RE-ENACTED THE EVENTS OF THE
FIRST ROBBERY BEFORE AN AUDIENCE OF ITS VICTIMS.  APPARENTLY NOTHING
CAME OF THIS INVESTIGATION.  THEN - ALMOST A YEAR LATER - THE F.B.I.
CAME INTO POSSESSION OF INFORMATION THAT PETITIONER WAS INVOLVED IN AN
UNRELATED STATE CRIME.  THIS INFORMATION WAS RELAYED TO THE BUFFALO
POLICE AND PUT INTO MOTION THE EVENTS WHICH LED TO PETITIONER'S
DETENTION, HIS INTERROGATION, AND HIS BEING CHARGED WITH THESE FEDERAL
CRIMES.  HE WAS ARRESTED BY THE LOCAL POLICE ON A CHARGE OF VIOLATION
OF THE STATE LAW AT ABOUT 9:30 IN THE MORNING.  THE BUFFALO POLICE, WHO
HAD ARRESTED HIM, HAD INTERROGATED HIM DURING THE DAY.  BUT THEY MADE
NO ATTEMPT TO HAVE A PROMPT COMMITMENT HEARING THAT WAS REQUIRED BY NEW
YORK LAW.  (FN1) 

THE F.B.I. HAD BEEN INFORMED OF PETITIONER'S ARREST ABOUT NOON OF THE
DAY OF HIS ARREST.  AT NINE IN THE EVENING OF THAT DAY THEY RECEIVED
PERMISSION TO INTERROGATE PETITIONER AS TO HIS INVOLVEMENT IN THE TWO
ROBBERIES.  FROM NINE IN THE EVENING UNTIL ALMOST ONE O'CLOCK IN THE
MORNING OF THE NEXT DAY, THEY CARRIED ON THEIR INTERROGATION, WHILE
STATE OFFICIALS LEFT THEM ALONE WITH PETITIONER "AS A MATTER OF
COURTESY."  IT WAS DURING THIS PERIOD THAT PETITIONER CONFESSED TO
PARTICIPATION IN BOTH CRIMES.  THE NEXT DAY, THE FEDERAL OFFICERS
OFFICIALLY "REQUESTED CUSTODY" OF PETITIONER, SO THAT HE COULD BE
ARRAIGNED ON THE FEDERAL CHARGES.  THERE WAS SOME DELAY BEFORE HE WAS
GIVEN INTO FEDERAL "CUSTODY," FOR THE LOCAL POLICE HAD TO SEE TO HIS
COMMITMENT UNDER THE STATE CHARGES.  SHORTLY AFTER TWO O'CLOCK IN THE
AFTERNOON HE WAS ARRAIGNED ON THE STATE CHARGES IN THE BUFFALO CITY
COURT.  AT FOUR IN THE AFTERNOON, ABOUT 19 HOURS AFTER THE FEDERAL
AGENTS HAD COMMENCED THEIR INTERROGATION, PETITIONER WAS ARRAIGNED IN
THE FEDERAL COURT.  THERE HAS BEEN MUCH ATTENTION FOCUSED, IN THE
PROGRESS OF THIS CASE, ON WHETHER THE BUFFALO POLICE AND THE F.B.I. HAD
A "WORKING ARRANGEMENT" (SEE ANDERSON V. UNITED STATES, 318 U.S. 350,
356) BY WHICH PETITIONER'S DETENTION WAS EFFECTED.  IN MY VIEW, THE
ACTIVITY OF THE FEDERAL AGENTS IN THIS CASE IS PROSCRIBED WITHOUT
REGARD TO WHETHER THERE WAS, OR WAS NOT, A PRE-EXISTING "WORKING
ARRANGEMENT." 

THE CONFESSIONS WOULD BE INADMISSIBLE IN THE CASE NOW BEFORE US IF
THE ORIGINAL ARREST IN THIS CASE HAD BEEN MADE BY FEDERAL OFFICERS. 
FOR THE DUTY OF A FEDERAL OFFICER MAKING AN ARREST IS TO TAKE THE
ARRESTED PERSON "WITHOUT UNNECESSARY DELAY" BEFORE A JUDICIAL OFFICER
FOR A HEARING IN COMPLIANCE WITH RULE 5(A), FED. RULES CRIM. PROC. HERE
THE PETITIONER WAS DETAINED FOR 29 HOURS WITHOUT SEEING A JUDICIAL
OFFICER OF ANY SORT; AND FOR 19 OF THESE HOURS HE WAS UNDER THE
VISITATION OF FEDERAL OFFICERS.  THERE WAS NO EFFORT TO ARRAIGN THE
ACCUSED DURING THAT TIME.  THE FEDERAL OFFICERS TOOK NO STEPS TO DO IT
THEMSELVES; NOR DID THEY INSIST THAT THE STATE POLICE MAKE THE
ARRAIGNMENT BEFORE A STATE JUDGE AS REQUIRED BY STATE LAW.  THERE WAS
ALSO NO SHOWING THAT MAGISTRATES WERE UNAVAILABLE.  (FN2)  I THINK IT
PLAIN THEREFORE THAT THE 19-HOUR DETENTION WAS AN "UNNECESSARY DELAY"
WITHIN THE MEANING OF RULE 5(A). 

ARREST, AND THE RESULTING DETENTION, SERVES, UNDER THE FEDERAL RULES,
THE PURPOSE OF ASSURING THAT A PERSON, ACCUSED ON PROBABLE GROUNDS OF A
CRIME, WILL BE AMENABLE TO THE ORDERS OF A COMPETENT COURT, WHICH
INCLUDE BY THE TERMS OF RULE 5(B) THE RIGHT TO COUNSEL AND TO BAIL.  IT
IS NOT AN ADMINISTRATIVE STEP PRELIMINARY TO A SECRET INTERROGATION. 
IN MALLORY V. UNITED STATES, 354 U.S. 449, 454, THIS COURT SAID THAT AN
ACCUSED "IS NOT TO BE TAKEN TO POLICE HEADQUARTERS IN ORDER TO CARRY
OUT A PROCESS OF INQUIRY  ...  ."  IN THAT CASE THE ACCUSED WAS
ARRESTED AT 2:30 P.M. AND HIS QUESTIONING BEGAN ABOUT 8 P.M.  BY 10
P.M.  HE CONFESSED, AT WHICH TIME THE FEDERAL AGENTS TRIED, WITHOUT
SUCCESS, TO REACH A FEDERAL MAGISTRATE.  BETWEEN 11:30 P.M. AND
MIDNIGHT, PETITIONER DICTATED HIS CONFESSION TO A TYPIST; AND HE WAS
NOT ARRAIGNED UNTIL THE NEXT MORNING. 

THE ONLY REASON PUT FORWARD FOR A DIFFERENT RESULT IN THIS CASE IS
THAT THE "POLICE HEADQUARTERS" IN WHICH FEDERAL AGENTS CARRIED OUT THE
WRONGFUL "PROCESS OF INQUIRY" BELONGED TO BUFFALO POLICE RATHER THAN
THE FEDERAL GOVERNMENT.  THE GOVERNMENT CONTENDS HERE, AS IT DID IN
ANDERSON V. UNITED STATES, SUPRA, 356, THAT IT IS NOT "FORMALLY GUILTY
OF ILLEGAL CONDUCT."  THE DEVICE IS TOO TRANSPARENT.  I DO NOT THINK
THAT FEDERAL AGENTS CAN AVOID THE IMPACT OF FEDERAL RULES BY TAKING
ADVANTAGE OF AN ILLEGAL DETENTION ARRANGED BY STATE OFFICERS.  RULE
5(A) IS NOT A FORMALITY; ITS PURPOSE IS TO MINIMIZE SECRET POLICE
INTERROGATION OF PERSONS UNDER DETENTION; ITS ULTIMATE AIM IS TO AVOID
THOSE SITUATIONS OUT OF WHICH GROWS THE WHOLE SYSTEM OF THE "THIRD
DEGREE."  THE EVIL AT WHICH THE RULE AIMS IS IN INTERROGATION IN SECRET
AND IN DETENTION BEFORE THE ARRAIGNMENT.  ITS MEANS ARE ARRAIGNMENT
"WITHOUT UNNECESSARY DELAY."  HERE, THE FEDERAL AGENTS CARRIED ON THE
KIND OF INTERROGATION AGAINST WHICH RULE 5(A) IS AIMED.  THE FACT THAT
THE INTERROGATION TOOK PLACE IN THE CELL OF A STATE POLICE STATION
RATHER THAN IN THE CELL OF A FEDERAL JAIL OR PRISON ONLY ACCENTUATES
THE EVASION OF THE RULE.  IN THIS CASE THE FEDERAL AGENTS USED AN
ILLEGAL DETENTION AS THE OCCASION TO CARRY ON A SECRET INTERROGATION. 
WHAT THE FEDERAL AGENTS CANNOT DO IN FEDERAL PRECINCTS THEY CANNOT DO
IN A STATE JAIL.  WHAT WE DO TODAY IS TO PERMIT FEDERAL AGENTS TO FLOUT
THE FEDERAL LAW SO LONG AS THEY LET THE ACCUSED STAY IN A STATE JAIL
AND INTERROGATE HIM THERE TO THEIR HEARTS' CONTENT. 

FN1  N.Y. CODE CRIM. PROC. SEC. 165.  SEE PEOPLE V. LOVELLO, 1 N.Y.2D
436, 438, 136 N.E.2D 483, ON WHOSE AUTHORITY THE GOVERNMENT CONCEDES
THE ILLEGALITY OF THE DETENTION UNDER STATE LAW. 

FN2  THERE IS SOME SUGGESTION THAT A STATE MAGISTRATE WAS NOT
AVAILABLE AFTER FIVE O'CLOCK IN THE AFTERNOON.  CF. N.Y. CODE CRIM.
PROC. SEC. 165.  BUT THERE IS NO SUGGESTION THAT A FEDERAL MAGISTRATE
WAS NOT AVAILABLE. 
..END :




WALGREEN CO. V. COMMISSIONER OF TAXATION 365 U.S. 767 


NO. 732.  DECIDED APRIL 17, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  258 MINN. 522, 104
N.W.2D 714. 


WALGREEN CO. V. COMMISSIONER OF TAXATION. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BOLTON V. BOROUGH OF SCHUYLKILL HAVEN 365 U.S. 767 


NO. 691.  DECIDED APRIL 17, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 190 PA. SUPER.  157, 153 A.2D 504. 


BOLTON ET AL. V. BOROUGH OF SCHUYLKILL HAVEN. 

APPEAL FROM THE SUPERIOR COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















VERRET V. OIL TRANSPORT CO. 365 U.S. 768 


NO. 388.  DECIDED APRIL 17, 1961 - REPORTED BELOW:  278 F.2D 464. 


CONSENT JUDGMENT HAVING BEEN ENTERED BY DISTRICT COURT SINCE REVERSAL
BY COURT OF APPEALS, JUDGMENT OF COURT OF APPEALS VACATED AND CASE
REMANDED WITH DIRECTIONS TO DISMISS APPEAL AS MOOT. 

VERRET ET AL. V. OIL TRANSPORT CO., INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

IT APPEARING FROM THE JOINT SUGGESTION OF MOOTNESS THAT, SUBSEQUENT
TO THE JUDGMENT OF REVERSAL BY THE COURT OF APPEALS OF THE JUDGMENT OF
THE DISTRICT COURT AND THE FILING AND GRANTING OF THE PETITION FOR WRIT
OF CERTIORARI, A CONSENT JUDGMENT WAS ENTERED BY THE DISTRICT COURT AND
THAT SAID JUDGMENT HAS BEEN SATISFIED, THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS
WITH DIRECTIONS TO DISMISS THE APPEAL AS MOOT. 
..END :







GREAT COVE REALTY V. BRENNER 365 U.S. 769 


NO. 675.  DECIDED APRIL 17, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 9 APP. DIV. 2D 948, 195 N.Y.S.2D 935. 


GREAT COVE REALTY CO., INC., ET AL. V. BRENNER, DISTRICT ATTORNEY,
SUFFOLK COUNTY, ET AL. 

APPEAL FROM THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, SECOND
JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :











ARCO AUTO CARRIERS V. ARKANSAS, BENNETT 365 U.S. 770 


NO. 785.  DECIDED APRIL 17, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: - ARK. - , 341 S.W.2D 15. 


ARCO AUTO CARRIERS, INC., ET AL. V. ARKANSAS EX REL. BENNETT, ATTORNEY
GENERAL. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















CHAPMAN V. UNITED STATES 365 U.S. 610 


NO. 175.  ARGUED FEBRUARY 23, 1961 - DECIDED APRIL 3, 1961 - 272 F.2D
70, REVERSED. 


STATE POLICE OFFICERS, ACTING WITHOUT A WARRANT BUT WITH THE CONSENT
OF PETITIONER'S LANDLORD, WHO HAD SUMMONED THEM AFTER DETECTING THE
ODOR OF WHISKEY MASH ON THE PREMISES, ENTERED PETITIONER'S RENTED HOUSE
IN HIS ABSENCE THROUGH AN UNLOCKED WINDOW AND THERE FOUND AN
UNREGISTERED STILL AND A QUANTITY OF MASH.  WHEN PETITIONER RETURNED
AND ENTERED THE HOUSE, HE WAS ARRESTED BY A STATE OFFICER.  FEDERAL
OFFICERS, ALSO WITHOUT WARRANTS, ARRIVED SOON THEREAFTER AND TOOK
CUSTODY OF PETITIONER, SAMPLES OF THE MASH AND THE STILL.  THE EVIDENCE
SO SEIZED WAS ADMITTED OVER PETITIONER'S OBJECTION AT HIS TRIAL IN A
FEDERAL COURT AND HE WAS CONVICTED OF VIOLATING THE FEDERAL LIQUOR
LAWS.  HELD:  THE SEARCH AND SEIZURE WERE UNLAWFUL, AND THE JUDGMENT
AFFIRMING THE CONVICTION IS REVERSED.  PP. 610-618. 

CHAPMAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

ACTING WITHOUT A WARRANT BUT WITH THE CONSENT OF THE PETITIONER'S
LANDLORD, GEORGIA LAW ENFORCEMENT OFFICERS ENTERED - THROUGH AN
UNLOCKED WINDOW - AND SEARCHED PETITIONER'S RENTED HOUSE, IN HIS
ABSENCE, AND THERE FOUND AND SEIZED AN UNREGISTERED "DISTILLERY" AND
1,300 GALLONS OF "MASH."   SOON AFTERWARD PETITIONER WAS INDICTED IN
THE DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA FOR VIOLATIONS OF
THE FEDERAL LIQUOR LAWS.  (FN1)  HE PROMPTLY MOVED THE COURT FOR AN
ORDER SUPPRESSING THE USE OF THE SEIZED ITEMS AS EVIDENCE AT HIS
IMPENDING CRIMINAL TRIAL ON THE GROUND THAT THEY WERE OBTAINED BY AN
UNLAWFUL SEARCH AND SEIZURE.  AFTER HEARING EVIDENCE, THE COURT HELD
THAT THE SEARCH AND SEIZURE WERE LAWFUL UNDER FEDERAL STANDARDS AND
DENIED THE MOTION. 

AT THE SUBSEQUENT TRIAL, THE EVIDENCE SOUGHT TO BE SUPPRESSED WAS
OFFERED AND RECEIVED, OVER PETITIONER'S RENEWED OBJECTIONS.  UPON THAT
EVIDENCE, THE JURY FOUND PETITIONER GUILTY, AND THE COURT SENTENCED HIM
TO IMPRISONMENT FOR A YEAR AND A DAY.  ON APPEAL, THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT AFFIRMED.  272 F.2D 70.  TO EXAMINE PETITIONER'S
CLAIM THAT THE COURTS BELOW VIOLATED THE STANDARDS GOVERNING
ADMISSIBILITY OF TIMELY CHALLENGED EVIDENCE IN FEDERAL COURTS, WE
GRANTED CERTIORARI.  363 U.S. 836. 

THE RELEVANT EVIDENCE IS NOT CONTROVERTED.  IT SHOWS THE FOLLOWING:
ONE BRIDGAMAN, AND ANOTHER, OWNED A DWELLING HOUSE IN A WOODED AREA
NEAR THE MACON, GEORGIA, AIRPORT, WHICH THEY COMMONLY RENTED THROUGH A
RENTAL AGENCY.  UNDERSTANDING THAT THE HOUSE HAD BEEN RENTED TO A NEW
TENANT, BRIDGAMAN, ON SUNDAY, FEBRUARY 16, 1958, WENT TO THE HOUSE FOR
THE PURPOSE OF INVITING THE TENANTS TO ATTEND CHURCH.  UPON ARRIVAL HE
NOTED A STRONG "ODOR OF MASH" ABOUT THE HOUSE.  THERE WAS NO RESPONSE
TO HIS KNOCK, AND, ALTHOUGH HE TRIED TO DO SO, HE WAS UNABLE TO SEE
INTO THE HOUSE.  HE THEN RETURNED TO HIS HOME AND, BY TELEPHONE,
ADVISED THE LOCAL POLICE DEPARTMENT OF HIS OBSERVATIONS.  SOON
AFTERWARD TWO LOCAL POLICE OFFICERS, HARBIN AND CHANCE, ARRIVED AT
BRIDGAMAN'S HOME, AND THE THREE THEN WENT TO THE RENTED HOUSE.  THEY
NOTICED A STRONG ODOR OF "WHISKEY MASH" COMING FROM THE HOUSE.  AFTER
THEIR KNOCK AT THE DOOR FAILED TO PRODUCE A RESPONSE, THEY WALKED
AROUND THE HOUSE AND TRIED TO LOOK INTO IT BUT WERE UNABLE TO DO SO
BECAUSE THE SHADES WERE DOWN.  THEY FOUND THAT ALL OF THE WINDOWS WERE
LOCKED, SAVE ONE IN THE BATHROOM.  THE OFFICERS TESTIFIED THAT
BRIDGAMAN TOLD THEM "TO GO IN THE WINDOW AND SEE WHAT'S WHAT IN
THERE."  BRIDGAMAN'S VERSION OF WHAT HE SAID WAS:  "IF IT'S WHAT I
THINK IT IS, WHAT IT SMELLS LIKE, YES, YOU CAN HAVE MY PERMISSION TO GO
IN."  THEREUPON THEY OPENED THE BATHROOM WINDOW AND, WITH THE
ASSISTANCE OF BRIDGAMAN AND CHANCE, HARBIN ENTERED THE HOUSE THROUGH
THAT OPENING.  UPON ENTERING THE HOUSE HE SAW A COMPLETE AND SIZABLE
DISTILLERY AND 1,300 GALLONS OF MASH LOCATED IN THE LIVING ROOM.  APART
FROM SOME ACCESSORIES, CONTAINERS AND FIREWOOD, THERE WAS NOTHING ELSE
IN THE HOUSE.  HARBIN THEN CALLED TO CHANCE THAT HE HAD FOUND A LARGE
STILL AND ASKED HIM "TO GO GET SOME HELP."  CHANCE IMMEDIATELY LEFT -
DROPPING BRIDGAMAN AT HIS HOME - TO CALL THE FEDERAL OFFICERS.  WHILE
THE FEDERAL OFFICERS WERE EN ROUTE TO THE HOUSE, PETITIONER DROVE UP,
UNLOCKED THE FRONT DOOR, ENTERED THE HOUSE AND WAS IMMEDIATELY ARRESTED
BY HARBIN.  THE FEDERAL OFFICERS SOON ARRIVED AND TOOK CUSTODY OF
PETITIONER.  THEY ALSO SAVED SAMPLES OF THE MASH, TOOK VARIOUS PICTURES
OF THE SCENE AND THEN DESTROYED THE STILL AND ITS CONTENTS.  NEITHER
THE STATE NOR THE FEDERAL OFFICERS HAD ANY WARRANT OF ANY KIND. 

ALTHOUGH THE DECISIONS BELOW WERE RENDERED PRIOR TO THIS COURT'S
DECISION IN ELKINS V. UNITED STATES, 364 U.S. 206, THE DOCTRINE OF THAT
CASE IS NOT HERE INVOLVED, AS THE LOWER COURTS EXPLICITLY RESTED THEIR
DETERMINATIONS ON THE GROUND THAT THE SEARCH AND SEIZURE, THOUGH MADE
BY STATE OFFICERS, WERE VALID UNDER FEDERAL STANDARDS.  HENCE, THE ONLY
QUESTION HERE IS WHETHER THOSE DETERMINATIONS WERE CORRECT.  WE BELIEVE
THAT THEY WERE NOT. 

THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION PROVIDES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

UNTIL AGNELLO V. UNITED STATES, 269 U.S. 20, THIS COURT HAD NEVER
DIRECTLY DECIDED, BUT HAD ALWAYS ASSUMED, "THAT ONE'S HOUSE CANNOT
LAWFULLY BE SEARCHED WITHOUT A SEARCH WARRANT, EXCEPT AS AN INCIDENT TO
A LAWFUL ARREST THEREIN" (ID., AT 32), BUT THAT CASE EXPLICITLY DECIDED
THAT "BELIEF, HOWEVER WELL FOUNDED, THAT AN ARTICLE SOUGHT IS CONCEALED
IN A DWELLING HOUSE FURNISHES NO JUSTIFICATION FOR A SEARCH OF THAT
PLACE WITHOUT A WARRANT.  AND SUCH SEARCHES ARE  ...  UNLAWFUL
NOTWITHSTANDING FACTS UNQUESTIONABLY SHOWING PROBABLE CAUSE."  ID., AT
33. 

AT LEAST TWO DECISIONS OF THIS COURT ARE CLOSELY RELEVANT.  TAYLOR V.
UNITED STATES, 286 U.S. 1, AND JOHNSON V. UNITED STATES, 333 U.S. 10. 
IN THE TAYLOR CASE, FEDERAL AGENTS HAD RECEIVED "COMPLAINTS" RESPECTING
ACTIVITIES AT A CERTAIN GARAGE IN BALTIMORE AND DECIDED TO
"INVESTIGATE."  AS THEY "APPROACHED THE GARAGE THEY GOT THE ODOR OF
WHISKEY COMING FROM WITHIN."  LOOKING THROUGH A SMALL OPENING, THEY SAW
A NUMBER OF CARDBOARD CASES.  ALTHOUGH THEY HAD NO WARRANT OF ANY KIND,
THEY "BROKE THE FASTENING UPON A DOOR, ENTERED AND FOUND ONE HUNDRED
TWENTY-TWO CASES OF WHISKEY.  NO ONE WAS WITHIN THE PLACE AND THERE WAS
NO REASON TO THINK OTHERWISE.  WHILE THE SEARCH PROGRESSED, TAYLOR CAME
FROM HIS HOUSE AND WAS PUT UNDER ARREST.  THE SEARCH AND SEIZURE WERE
UNDERTAKEN WITH THE HOPE OF SECURING EVIDENCE UPON WHICH TO INDICT AND
CONVICT HIM."  ID., AT 5. 

IN CONDEMNING THAT SEARCH AND SEIZURE, THIS COURT SAID THAT THE
OFFICERS "HAD ABUNDANT OPPORTUNITY TO OBTAIN A WARRANT AND TO PROCEED
IN AN ORDERLY WAY EVEN AFTER THE ODOR HAD EMPHASIZED THEIR SUSPICIONS;
THERE WAS NO PROBABILITY OF MATERIAL CHANGE IN THE SITUATION DURING THE
TIME NECESSARY TO SECURE SUCH WARRANT.  MOREOVER, A SHORT PERIOD OF
WATCHING WOULD HAVE PREVENTED ANY SUCH POSSIBILITY  ...  .  PROHIBITION
OFFICERS MAY RELY ON A DISTINCTIVE ODOR AS A PHYSICAL FACT INDICATIVE
OF POSSIBLE CRIME; BUT ITS PRESENCE ALONE DOES NOT STRIP THE OWNER OF A
BUILDING OF CONSTITUTIONAL GUARANTEES AGAINST UNREASONABLE SEARCH." 
THE COURT CONCLUDED THAT "IN ANY VIEW, THE ACTION OF THE AGENTS WAS
INEXCUSABLE AND THE SEIZURE UNREASONABLE.  THE EVIDENCE WAS OBTAINED
UNLAWFULLY AND SHOULD HAVE BEEN SUPPRESSED."  ID., AT 6. 

IN THE JOHNSON CASE, STATE NARCOTIC AGENTS, WHILE IN THE HALLWAY OF A
HOTEL, RECOGNIZED A STRONG ODOR OF BURNING OPIUM COMING FROM A
PARTICULAR ROOM.  WITHOUT KNOWING WHO WAS OCCUPYING THE ROOM, THEY
KNOCKED AND, AFTER SOME DELAY, THE DOOR WAS OPENED.  THE AGENTS THEN
ENTERED THE ROOM AND TOLD THE OCCUPANT "TO CONSIDER HERSELF UNDER
ARREST BECAUSE WE ARE GOING TO SEARCH THE ROOM."  THE SEARCH PRODUCED
INCRIMINATING OPIUM AND SMOKING APPARATUS WHICH WAS WARM FROM RECENT
USE.  THE DISTRICT COURT REFUSED TO SUPPRESS THAT EVIDENCE AND ADMITTED
IT OVER DEFENDANT'S OBJECTION AT THE TRIAL AND SHE WAS CONVICTED.  IN
REVERSING, THIS COURT SAID: 

"THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT GRASPED BY
ZEALOUS OFFICERS, IS NOT THAT IT DENIES LAW ENFORCEMENT THE SUPPORT OF
THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM EVIDENCE.  ITS
PROTECTION CONSISTS IN REQUIRING THAT THOSE INFERENCES BE DRAWN BY A
NEUTRAL AND DETACHED MAGISTRATE INSTEAD OF BEING JUDGED BY THE OFFICER
ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING OUT CRIME. 
ANY ASSUMPTION THAT EVIDENCE SUFFICIENT TO SUPPORT A MAGISTRATE'S
DISINTERESTED DETERMINATION TO ISSUE A SEARCH WARRANT WILL JUSTIFY THE
OFFICERS IN MAKING A SEARCH WITHOUT A WARRANT WOULD REDUCE THE
AMENDMENT TO A NULLITY AND LEAVE THE PEOPLE'S HOMES SECURE ONLY IN THE
DISCRETION OF POLICE OFFICERS  ...  .  THE RIGHT OF OFFICERS TO THRUST
THEMSELVES INTO A HOME IS ALSO A GRAVE CONCERN, NOT ONLY TO THE
INDIVIDUAL BUT TO A SOCIETY WHICH CHOOSES TO DWELL IN REASONABLE
SECURITY AND FREEDOM FROM SURVEILLANCE.  WHEN THE RIGHT OF PRIVACY MUST
REASONABLY YIELD TO THE RIGHT OF SEARCH IS, AS A RULE, TO BE DECIDED BY
A JUDICIAL OFFICER, NOT BY A POLICEMAN OR GOVERNMENT ENFORCEMENT
AGENT. 

"THERE ARE EXCEPTIONAL CIRCUMSTANCES IN WHICH, ON BALANCING THE NEED
FOR EFFECTIVE LAW ENFORCEMENT AGAINST THE RIGHT OF PRIVACY, IT MAY BE
CONTENDED THAT A MAGISTRATE'S WARRANT FOR SEARCH MAY BE DISPENSED
WITH.  BUT THIS IS NOT SUCH A CASE."  333 U.S., AT 13-15. 

HERE, AS IN THAT CASE, "NO REASON IS AFFORDED FOR NOT OBTAINING A
SEARCH WARRANT EXCEPT THE INCONVENIENCE TO THE OFFICERS AND SOME SLIGHT
DELAY NECESSARY TO PREPARE PAPERS AND PRESENT THE EVIDENCE TO A
MAGISTRATE.  THERE ARE NEVER VERY CONVINCING REASONS AND, IN THESE
CIRCUMSTANCES, CERTAINLY ARE NOT ENOUGH TO BY-PASS THE CONSTITUTIONAL
REQUIREMENT.  NO SUSPECT WAS FLEEING OR LIKELY TO TAKE FLIGHT.  THE
SEARCH WAS OF PERMANENT PREMISES, NOT OF A MOVABLE VEHICLE.  NO
EVIDENCE OR CONTRABAND WAS THREATENED WITH REMOVAL OR DESTRUCTION,
EXCEPT PERHAPS THE FUMES WHICH WE SUPPOSE IN TIME WOULD DISAPPEAR." 
333 U.S. AT 15. 

WE THINK IT MUST BE CONCLUDED HERE, AS IT WAS IN JOHNSON, THAT "IF
THE OFFICERS IN THIS CASE WERE EXCUSED FROM THE CONSTITUTIONAL DUTY OF
PRESENTING THEIR EVIDENCE TO A MAGISTRATE, IT IS DIFFICULT TO THINK OF
A CASE IN WHICH IT SHOULD BE REQUIRED."  333 U.S., AT 15.  SEE ALSO
LUSTIG V. UNITED STATES, 338 U.S. 74; UNITED STATES V. RABINOWITZ, 339
U.S. 56; UNITED STATES V. JEFFERS, 342 U.S. 48; JONES V. UNITED STATES,
357 U.S. 493. 

ACTUALLY, THE GOVERNMENT DOES NOT CONTEND IN THIS COURT THAT THIS
SEARCH AND SEIZURE, AS SUCH, MET THE STANDARDS OF THE FOURTH
AMENDMENT.  INSTEAD, IT SAYS:  "OUR POSITION IS THAT WHEN THE LANDLORD,
PAYING A SOCIAL CALL, FOUND GOOD REASON TO BELIEVE THAT THE LEASED
PREMISES WERE BEING WASTED AND USED FOR CRIMINAL PURPOSES, HE HAD
AUTHORITY TO ENTER AS A MATTER OF RIGHT AND TO BRING OFFICERS WITH HIM
FOR THIS PURPOSE."  IT SAYS THAT, UNDER THE COMMON LAW, A LANDLORD HAS
AN ABSOLUTE RIGHT TO ENTER THE DEMISED PREMISES "TO VIEW WASTE," AND
THAT HE SHOULD BE ABLE TO EXERCISE THAT RIGHT THROUGH LAW ENFORCEMENT
OFFICERS TO WHOM HE HAS DELEGATED HIS AUTHORITY.  BUT IT CITES NO
GEORGIA OR OTHER CASE HOLDING THAT A LANDLORD, IN THE ABSENCE OF AN
EXPRESS COVENANT SO PERMITTING, HAS A RIGHT FORCIBLY TO ENTER THE
DEMISED PREMISES WITHOUT THE CONSENT OF THE TENANT "TO VIEW WASTE." 
AND, SO FAR AS OUR RESEARCH DISCLOSES, NO GEORGIA CASE SO HOLDS. 

THE ONLY RELEVANT AUTHORITY CITED BY THE GOVERNMENT IS A STATEMENT
FROM TIFFANY, LANDLORD AND TENANT (1910 ED.), SEC. 3.B.(2), P. 9, THAT
"IT HAS ALSO BEEN SAID THAT THE LANDLORD MAY ENTER TO 'VIEW WASTE,'
THAT IS, TO DETERMINE WHETHER WASTE HAS BEEN COMMITTED, PROVIDED AT
LEAST THAT THIS DOES NOT INVOLVE THE BREAKING OF WINDOWS OR DOORS  ...
."  (FN2)  THERE ARE SEVERAL ANSWERS TO THIS CONTENTION.  FIRST, HERE
THE LANDLORD AND THE OFFICERS FORCED OPEN A WINDOW TO GAIN ENTRY TO THE
PREMISES.  SECOND, "THEIR PURPOSE IN ENTERING WAS NOT TO VIEW WASTE BUT
TO SEARCH FOR DISTILLING EQUIPMENT  ...  ."  JONES V. UNITED STATES,
SUPRA, AT 500.  THIRD, TO UPHOLD SUCH AN ENTRY, SEARCH AND SEIZURE
"WITHOUT A WARRANT WOULD REDUCE THE FOURTH AMENDMENT TO A NULLITY AND
LEAVE TENANTS' HOMES SECURE ONLY IN THE DISCRETION OF LANDLORDS." 
JOHNSON V. UNITED STATES, SUPRA, AT 14.  MOREOVER, "IT IS UNNECESSARY
AND ILL-ADVISED TO IMPORT INTO THE LAW SURROUNDING THE CONSTITUTIONAL
RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES SUBTLE
DISTINCTIONS, DEVELOPED AND REFINED BY THE COMMON LAW IN EVOLVING THE
BODY OF PRIVATE PROPERTY LAW WHICH, MORE THAN ALMOST ANY OTHER BRANCH
OF LAW, HAS BEEN SHAPED BY DISTINCTIONS WHOSE VALIDITY IS LARGELY
HISTORICAL  ...  .  WE OUGHT NOT TO BOW TO THEM IN THE FAIR
ADMINISTRATION OF THE CRIMINAL LAW.  TO DO SO WOULD NOT COMPORT WITH
OUR JUSTLY PROUD CLAIM OF THE PROCEDURAL PROTECTIONS ACCORDED TO THOSE
CHARGED WITH CRIME."  JONES V. UNITED STATES, 362 U.S. 257, 266-267. 

AFTER POINTING TO THE FACT THAT A GEORGIA STATUTE (TITLE 58 GA. CODE
SEC. 106) PROVIDES THAT THE UNLAWFUL MANUFACTURE OF DISTILLED LIQUOR ON
RENTED PREMISES SHALL WORK A FORFEITURE OF THE RIGHTS OF THE TENANT, AT
THE OPTION OF THE LANDLORD, AND THAT ANOTHER (TITLE 58 GA.  CODE SEC.
109) PROVIDES THAT USE OF A STRUCTURE FOR THAT PURPOSE CONSTITUTES A
NUISANCE, THE GOVERNMENT ARGUES THAT, INASMUCH AS HE USED THE DEMISED
PREMISES FOR THE ILLICIT MANUFACTURE OF DISTILLED LIQUOR, PETITIONER
HAD FORFEITED ALL RIGHTS IN THE PREMISES, AND THE LANDLORD THUS
ACQUIRED THE RIGHT FORCIBLY TO ENTER TO ABATE THE NUISANCE, AND THAT HE
COULD AND DID DELEGATE THE RIGHT TO THE OFFICERS.  BUT IT IS CLEAR
THAT, BEFORE THE OFFICERS MADE THE FORCIBLE ENTRY, THE LANDLORD DID NOT
KNOW THAT THE PREMISES WERE BEING USED FOR THE MANUFACTURE OF LIQUOR,
NOR HAD HE EXERCISED HIS STATUTORY OPTION TO FORFEIT THE TENANCY FOR
SUCH A CAUSE.  AND THE SUPREME COURT OF GEORGIA HAS HELD THAT A
PROCEEDING TO ABATE NUISANCE UNDER SEC. 109 "MUST PROCEED FOR THE
PUBLIC ON INFORMATION FILED BY THE SOLICITOR-GENERAL OF THE CIRCUIT." 
KILGORE V. PASCHALL, 202 GA. 416, 417, 43 S.E.2D 520, 521.   IT FOLLOWS
THAT THIS SEARCH WAS UNLAWFUL, AND SINCE EVIDENCE OBTAINED THROUGH THAT
SEARCH WAS ADMITTED AT THE TRIAL, THE JUDGMENT OF THE COURT OF APPEALS
MUST BE REVERSED. 

FN1  26 U.S.C. SECS. 5601, 5606.    FN2  ONLY ANCIENT ENGLISH CASES
ARE CITED IN SUPPORT OF THE TEXT. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE JUDGMENT. 

SINCE SEARCHES AND SEIZURES PLAY SUCH A FREQUENT ROLE IN FEDERAL
CRIMINAL TRIALS, IT IS MOST IMPORTANT THAT THE LAW ON SEARCHES AND
SEIZURES BY WHICH PROSECUTORS AND TRIAL JUDGES ARE TO BE GUIDED SHOULD
BE AS CLEAR AND UNCONFUSING AS THE NATURE OF THE SUBJECT MATTER
PERMITS.  THE COURSE OF TRUE LAW PERTAINING TO SEARCHES AND SEIZURES,
AS ENUNCIATED HERE, HAS NOT - TO PUT IT MILDLY - RUN SMOOTH.  THE
COURT'S OPINION IN THIS CASE IS HARDLY CALCULATED, I REGRET TO SAY, TO
CONTRIBUTE TO CLARIFICATION.  THE REASONING BY WHICH THE COURT REACHES
ITS RESULT WOULD BE WARRANTED WERE TRUPIANO V. UNITED STATES, 334 U.S.
699 (1948), STILL LAW.  WHILE THE COURT DOES NOT EXPLICITLY RELY ON IT,
UNDERLYING THE PRESENT DECISION IS THE APPROACH OF TRUPIANO.  THAT
DECISION WAS A SHORT-LIVED DEVIATION FROM THE COURSE OF DECISIONS
PRECEDING IT AND IT WAS SPECIFICALLY OVERRULED BY UNITED STATES V.
RABINOWITZ, 339 U.S. 56, 66 (1950).  SINCE THE RABINOWITZ CASE
EXPRESSES THE PREVAILING VIEW, THE DECISION IN THIS CASE RUNS COUNTER
TO IT.  THE COURT DOES RELY ON JOHNSON V. UNITED STATES, 333 U.S. 10,
ALTHOUGH THAT CASE WAS SERIOUSLY IMPAIRED BY RABINOWITZ, 339 U.S., AT
66, DISSENTING OPINION, AT 85. 

SURELY IT IS FAIR TO SAY THAT THE LOWER COURTS AND PROSECUTORS HAVE A
RIGHT TO PROCEED ON THE ASSUMPTION, ON THE BASIS OF CONTROLLING
DECISIONS, THAT WHETHER OR NOT A SEARCH IS "UNREASONABLE" TURNS ON THE
CIRCUMSTANCES PRESENTED BY A PARTICULAR SITUATION, AS A MATTER OF
SUBSTANTIVE DETERMINATION.  ON THAT TEST, I FIND IT VERY DIFFICULT TO
CONCLUDE THAT A POLICE OFFICER MAY NOT DEEM ADEQUATE THE AUTHORIZATION
OF A LANDLORD TO ENTER HIS HOUSE WITHOUT A SEARCH WARRANT WHERE HE HAS
SOLID GROUND FOR BELIEVING THAT HIS LESSEE IS UTILIZING THE HOUSE AS AN
ILLEGAL DISTILLERY.  IT SEEMS TO ME THAT IT IS NOT AT ALL
"UNREASONABLE" NOT TO CHARGE A LOCAL POLICE OFFICER WITH KNOWLEDGE OF
THE LAW OF GEORGIA REGARDING THE POWER OF A LANDLORD TO ABATE A
NUISANCE IN HIS HOUSE.  APART FROM CHARGING A POLICEMAN WITH KNOWLEDGE
OF THE LOCAL LAW RELATING TO LANDLORD AND TENANT, HE CERTAINLY WOULD
NOT ACQUIRE THAT KNOWLEDGE BY READING THE ONLY GEORGIA CASE TO WHICH
THE COURT'S OPINION REFERS, KILGORE V. PASCHALL, 202 GA. 416, 43 S.E.2D
520, A CASE WHICH DEALS WITH THE PROCEDURE OF A SOLICITOR GENERAL OF A
GEORGIA CIRCUIT IN ABATING A NUISANCE BY AN INJUNCTION AND TELLS
NOTHING ABOUT THE REMEDY OF SELF-HELP BY A LANDLORD. 

IN JOINING THE COURT'S JUDGMENT, I DO SO ON THE BASIS OF THE VIEWS
SET FORTH IN MY DISSENTS IN DAVIS V. UNITED STATES, 328 U.S. 582, 594;
ZAP V. UNITED STATES, 328 U.S. 624, 630; HARRIS V. UNITED STATES, 331
U.S. 145, 155; UNITED STATES V. RABINOWITZ, SUPRA, AT 68.  AS THESE
OPINIONS ELUCIDATE, THE FOURTH AMENDMENT INCORPORATES A GUIDING HISTORY
THAT GIVES MEANING TO THE PHRASE "UNREASONABLE SEARCHES AND SEIZURES"
CONTAINED WITHIN IT FAR BEYOND THE MEANING OF THE PHRASE IN ISOLATION
AND TAKEN FROM THE CONTEXT OF THAT HISTORY AND ITS GLOSS UPON THE
FOURTH AMENDMENT.  THE AMENDMENT IN ITS ENTIRETY IN THE SETTING OF THAT
HISTORY DECIDEDLY DOES NOT LEAVE THE PHRASE "UNREASONABLE SEARCHES AND
SEIZURES" AT LARGE. 

MR. JUSTICE CLARK, DISSENTING. 

THE CONSTITUTION CONDEMNS ONLY AN UNREASONABLE SEARCH.  AS MY BROTHER
FRANKFURTER SAYS, THAT DETERMINATION "TURNS ON THE CIRCUMSTANCES
PRESENTED BY A PARTICULAR SITUATION."  (FN1) 

AS I READ THE RECORD, BRIDGAMAN HAD RENTED A HOUSE TO CHAPMAN.  ON A
SUNDAY MORNING HE CALLED AT THE HOUSE TO INVITE CHAPMAN TO CHURCH
SERVICES.  HOWEVER, BRIDGAMAN FOUND CHAPMAN GONE, THE HOUSE LOCKED UP
AND AN "AWFUL SCENT" OF WHISKEY MASH ALL OVER THE PLACE, INCLUDING AN
OPEN BUT EMPTY CELLAR.  HE REPORTED THESE FACTS TO STATE OFFICERS AND,
AT HIS SUGGESTION, TWO OFFICERS ACCOMPANIED HIM TO THE HOUSE.  THEY TOO
SMELLED, AS THE COURT SAYS, "A STRONG ODOR OF 'WHISKEY MASH' COMING
FROM THE HOUSE." 

UNDER GEORGIA LAW, THE USE OF PREMISES FOR THE MANUFACTURE OR THE
KEEPING OF LIQUOR FOR DISPOSITION WORKS "A FORFEITURE OF THE RIGHTS OF
ANY LESSEE OR TENANT UNDER ANY LEASE OR CONTRACT FOR RENT  ...  ." 
(FN2)  BRIDGAMAN ADVISED THE OFFICERS HE WAS THE OWNER OF THE HOUSE,
HAD IT LEASED OUT, AND "INSTRUCTED" OFFICER HARBIN TO ENTER IT AND "SEE
WHAT'S WHAT IN THERE."  THE OFFICERS FOUND A BATHROOM WINDOW UNLOCKED. 
BRIDGAMAN "TOLD" THE OFFICERS "TO GO IN THE WINDOW" AND ASSISTED IN
"BOOSTING" OFFICER HARBIN INTO THE WINDOW AND ON INTO THE HOUSE. 
INSIDE, THE OFFICER FOUND A STILL SET UP FOR THE OPERATION AND 1,300
GALLONS OF WHISKEY MASH IN THE VATS.  THERE WAS NEITHER HOUSEHOLD
FURNITURE NOR OTHER EVIDENCE OF RESIDENTIAL OCCUPANCY. 

THE COURT SETS ASIDE CHAPMAN'S CONVICTION ON THE GROUND THAT THIS
SEARCH WITHOUT A WARRANT WAS "UNREASONABLE."  FOR THE LIFE OF ME I
CANNOT SEE WHY THIS IS TRUE.  I AGREE WITH A UNANIMOUS COURT OF APPEALS
THAT "UNDER THE CIRCUMSTANCES OF THE SEARCH HERE MADE BY THE STATE
OFFICERS, NO ILLEGALITY WAS SHOWN." 

THE "REASONABLENESS" OF THE SEARCH HINGES ON THE RIGHTS OF THE
LANDLORD UNDER GEORGIA LAW IN SUCH A SITUATION.  THIS COURT REFUSES TO
HONOR THE CLEAR LANGUAGE OF SEC. 106, APPARENTLY BECAUSE THE GOVERNMENT
"CITES NO GEORGIA OR OTHER CASE" HOLDING THAT A LANDLORD MAY, UNDER THE
CIRCUMSTANCES HERE, ENTER ON HIS PREMISES.  INSTEAD, IT BASES ITS
REVERSAL ON TAYLOR V. UNITED STATES, 286 U.S. 1, AND JOHNSON V. UNITED
STATES, 333 U.S. 10, INVOLVING ENTRY BY OFFICERS, UNACCOMPANIED BY THE
LANDLORD, INTO A HOME WITHOUT A SEARCH WARRANT WHEN THERE WAS AMPLE
TIME TO SECURE ONE.  THIS DOCTRINE, ESTABLISHED BY TRUPIANO V. UNITED
STATES, 334 U.S. 699 (1948), WAS REPUDIATED AND SPECIFICALLY OVERRULLED
ONLY TWO YEARS LATER IN UNITED STATES V. RABINOWITZ, 339 U.S. 56, AT
66.  FURTHERMORE, NONE OF THE CASES CITED BY THE COURT INVOLVE THE
LANDLORD-TENANT CIRCUMSTANCE CONTROLLING HERE. 

AS TO GEORGIA LAW, THE COURT ITSELF FINDS THAT "NO GEORGIA CASE"
HOLDS THAT LANDLORDS HAVE A RIGHT OF ENTRY AS WAS EXERCISED BY
BRIDGAMAN HERE.  IT SAYS THAT, FIRST, THE WINDOW WAS FORCED, SECOND,
THE ENTRY WAS FOR THE PURPOSES OF SEARCH, AND THIRD, AFFIRMANCE WOULD
"'LEAVE TENANTS' HOMES SECURE ONLY IN THE DISCRETION OF LANDLORDS'"
(QUOTING FROM JOHNSON, SUPRA).  THE OBVIOUS ANSWER TO THAT IS:
"CHAPMAN WAS A TENANT NO MORE]"  THE STATUTE PROVIDED FOR THE
FORFEITURE OF HIS LEASE AT HIS LESSOR'S OPTION WHEN HE BEGAN MAKING
WHISKEY ON THE PREMISES.  AND BRIDGAMAN SO ELECTED WHEN HE DIRECTED THE
OFFICERS TO ENTER THE HOUSE.  IT WAS CHAPMAN WHO WAS THE TRESPASSER,
NOT BRIDGAMAN.  THE LATTER WAS MERELY REPOSSESSING HIS PROPERTY, NOT
ABATING A NUISANCE.  THEREFORE, SEC. 109 OF THE GEORGIA CODE, CITED BY
THE COURT, HAS NO BEARING HERE FOR THAT STATUTE MERELY PROVIDES THAT
THE ATTORNEY GENERAL "MAY" ABATE SUCH A NUISANCE.  IT HAS NO REFERENCE
TO LANDLORDS QUA LANDLORDS.  INDEED, THE OFFICERS HERE COULD HAVE
ABATED THE NUISANCE WITHOUT JUDICIAL HELP BY DESTROYING THE STILL AND
ALL OF ITS PARAPHERNALIA UNDER AUTHORITY OF 58 GA. CODE ANN. (CUM.
SUPP. 1958) SEC.  207.  (FN3)  LIKEWISE, KILGORE V. PASCHALL, 202 GA.
416, 43 S.E.2D 520, ALSO CITED BY THE COURT, IS ENTIRELY INAPPOSITE. 
THAT CASE MERELY HOLDS THAT THE SPECIAL STATUTORY AUTHORIZATION, UNDER
AN ENTIRELY DIFFERENT PROVISION OF THE GEORGIA CODE, SEC. 110, TO CLOSE
UP "BLIND TIGERS," I.E., PUBLIC PLACES OF DISREPUTE WHERE GAMBLING,
DRINKING, ETC., ARE CARRIED ON, MUST BE BROUGHT BY THE SOLICITOR OF THE
COUNTY WHEREIN THEY ARE LOCATED.  BUT EVEN IF IT DID HOLD THAT ACTIONS
UNDER SEC. 109 MUST BE BROUGHT BY THE SOLICITOR, THAT RULING WOULD HAVE
NO EFFECT HERE, PRECISELY BECAUSE THE PRESENT FACTUAL SITUATION DOES
NOT COME UNDER SEC. 109 BUT UNDER SEC. 106 AND SEC. 207, SUPRA. 

FURTHERMORE, THERE WAS AMPLE REASON FOR NOT GETTING A WARRANT HERE. 
IT WAS SUNDAY AFTERNOON AND, AS THE GEORGIA OFFICER TESTIFIED, HE HAD
"NEVER GOT ONE ON SUNDAY."  "I DON'T THINK YOU CAN."  AND THIS WAS
BUTTRESSED BY HIS FURTHER STATEMENTS:  "WELL, I DIDN'T FEEL NO CALL TO
GET ONE."  "THE MAN THAT OWNED THE HOUSE, HE WAS THERE AND HE TOLD US
TO GO IN THE WINDOW AND SEE WHAT'S WHAT IN THERE, SO WE WENT ON IN." 
THIS SHOWS A COMPLETE RELIANCE BY THE OFFICERS ON BRIDGAMAN'S DIRECTION
TO ENTER THE HOUSE.  THIS, I SAY, MADE THE SEARCH ENTIRELY REASONABLE
AND THEREFORE VALID UNDER THE FOURTH AMENDMENT. 

EVERY MOMENT OF EVERY DAY, SOMEWHERE IN THE UNITED STATES, A LAW
ENFORCEMENT OFFICER IS FACED WITH THE PROBLEM OF SEARCH AND SEIZURE. 
HE IS ANXIOUS TO OBEY THE RULES THAT CIRCUMSCRIBE HIS CONDUCT IN THIS
FIELD.  IT IS THE DUTY OF THIS COURT TO LAY DOWN THOSE RULES WITH SUCH
CLARITY AND UNDERSTANDING THAT HE MAY BE ABLE TO FOLLOW THEM.  FOR SOME
YEARS NOW THE FIELD HAS BEEN MUDDY, BUT TODAY THE COURT MAKES IT A
QUAGMIRE.  IT FASHIONS A NOVEL RULE, SUPPORTING IT WITH AN OLD THEORY
LONG SINCE OVERRULED.  IF RABINOWITZ IS NO LONGER LAW THE COURT SHOULD
SAY SO.  IT IS DISASTROUS TO LAW ENFORCEMENT TO LEAVE AT LARGE THE
INCONSISTENT RULES LAID DOWN IN THESE CASES.  IT TURNS THE WELLSPRINGS
OF DEMOCRACY - LAW AND ORDER - INTO A SLOUGH OF FRUSTRATION.  IT TURNS
CRIME DETECTION INTO A GAME OF "COPS AND ROBBERS."  WE HEAR MUCH THESE
DAYS OF AN INCREASING CRIME RATE AND A BREAKDOWN IN LAW ENFORCEMENT. 
SOME PLACE THE BLAME ON POLICE OFFICERS.  I SAY THERE ARE OTHERS THAT
MUST SHOULDER MUCH OF THAT RESPONSIBILITY. 

FN1  I JOIN IN HIS OPINION EXCEPT FOR THE LAST PARAGRAPH IN WHICH HE
CONCURS IN THE JUDGMENT OF THE COURT. 

FN2  58 GA. CODE ANN., SEC. 106.  ASIDE FROM EVICTION, THERE ARE NO
STATUTORY PROCEDURAL REQUIREMENTS AS TO FORFEITURE, THE FORFEIT
OPERATING BY VIRTUE OF SEC. 106 AT THE OPTION OF THE LANDLORD. 

FN3  SECTION 207 PROVIDES IN PERTINENT PART: 

"WHENEVER SAID APPARATUS FOR MAKING LIQUOR IS  ...  FOUND OR
DISCOVERED BY ANY SHERIFF, ...  THE SAME SHALL BE SUMMARILY DESTROYED
AND RENDERED USELESS BY HIM WITHOUT ANY FORMAL ORDER OF THE COURT." 
..END :








UNITED STATES V. VIRGINIA ELECTRIC & POWER CO. 365 U.S. 624 


NO. 49.  ARGUED NOVEMBER 10, 1960 - DECIDED APRIL 3, 1961 - 270 F.2D
707, JUDGMENT VACATED AND CAUSE REMANDED. 


IN CONNECTION WITH THE CONSTRUCTION OF A DAM AND RESERVOIR ON A
NAVIGABLE RIVER, THE UNITED STATES ACQUIRED BY CONDEMNATION A FLOWAGE
EASEMENT OVER A TRACT OF FAST LAND ADJACENT TO ONE OF ITS NAVIGABLE
TRIBUTARIES.  THAT TRACT INCLUDED A SMALLER TRACT OF FAST LAND OVER
WHICH RESPONDENT OWNED A PERPETUAL AND EXCLUSIVE FLOWAGE EASEMENT,
WHICH WAS DESTROYED BY THE GOVERNMENT'S APPROPRIATION.  HELD: 

1.  RESPONDENT IS ENTITLED TO COMPENSATION FOR THE VALUE OF ITS
EASEMENT WHICH IS NOT ATTRIBUTABLE TO THE FLOW OF THE STREAM BUT TO THE
DEPRECIATIVE IMPACT OF THE EASEMENT UPON THE NONRIPARIAN USES OF THE
LAND.  PP. 627-631. 

2.  THE VALUE OF RESPONDENT'S EASEMENT IS THE NONRIPARIAN VALUE OF
THE SUBSERVIENT LAND DISCOUNTED BY THE IMPROBABILITY OF THE EASEMENT'S
EXERCISE, AND, IN ASSESSING THIS IMPROBABILITY, NO WEIGHT SHOULD BE
GIVEN TO THE PROSPECT OF GOVERNMENTAL APPROPRIATION.  PP. 631-636. 

UNITED STATES V. VIRGINIA ELECTRIC & POWER CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

IN 1944 CONGRESS AUTHORIZED THE CONSTRUCTION OF A DAM AND RESERVOIR
ON THE ROANOKE RIVER IN VIRGINIA AND NORTH CAROLINA.  FOR PURPOSES OF
THAT PROJECT THE GOVERNMENT ACQUIRED BY CONDEMNATION A FLOWAGE EASEMENT
OVER 1840 ACRES OF FAST LANDS ADJACENT TO THE DAN RIVER, A NAVIGABLE
TRIBUTARY OF THE ROANOKE.  THIS 1840-ACRE TRACT WAS PART OF A 7400-ACRE
ESTATE.  THE RESPONDENT OWNED A PERPETUAL AND EXCLUSIVE FLOWAGE
EASEMENT OVER 1540 ACRES WITHIN THE EASEMENT TAKEN BY THE GOVERNMENT. 
THE ONLY QUESTION PRESENTED BY THIS CASE CONCERNS THE COMPENSATION
AWARDED TO THE RESPONDENT FOR THE DESTRUCTION OF ITS EASEMENT. 

THE RESPONDENT'S EASEMENT HAD BEEN PURCHASED FROM THE OWNER OF THE
ESTATE AND HAD BEEN CONVEYED TO THE RESPONDENT'S PREDECESSORS IN TITLE
BY VARIOUS DEEDS OVER A PERIOD OF MANY YEARS, BEGINNING IN 1907.  ALONG
WITH THE EASEMENT THE FEE OWNER HAD ALSO EXPRESSLY GRANTED BY DEED THE
RELEASE OF ALL CLAIMS FOR DAMAGE TO THE RESIDUE OF THE ESTATE RESULTING
FROM THE EXERCISE OF RIGHTS UNDER THE EASEMENT. 

IN 1951, AFTER EXTENDED NEGOTIATIONS, THE OWNER OF THE ESTATE AGREED
TO CONVEY TO THE GOVERNMENT A FLOWAGE EASEMENT OVER THE 1840-ACRE TRACT
IN RETURN FOR THE PAYMENT OF ONE DOLLAR.  (FN1)  THIS AGREEMENT WAS
EXPRESSLY MADE SUBJECT TO "SUCH WATER, FLOWAGE, RIPARIAN AND OTHER
RIGHTS, IF ANY," AS THE RESPONDENT OWNED IN THE TRACT.  THE AGREEMENT
ALSO PROVIDED THAT THE GOVERNMENT COULD ELECT TO ACQUIRE ITS EASEMENT
BY A CONDEMNATION PROCEEDING, IN WHICH EVENT THE AGREED CONSIDERATION
OF ONE DOLLAR WOULD BE "THE FULL AMOUNT OF THE AWARD OF JUST
COMPENSATION INCLUSIVE OF INTEREST."  EXERCISING THIS ELECTION, THE
GOVERNMENT INSTITUTED CONDEMNATION PROCEEDINGS IN THE DISTRICT COURT TO
ACQUIRE A FLOWAGE EASEMENT OVER THE 1840 ACRES IN QUESTION, DEPOSITING
ONE DOLLAR AS THE ESTIMATED JUST COMPENSATION FOR THE PROPERTY TO BE
TAKEN.  THE FEE OWNER ACKNOWLEDGED THE SETTLEMENT CONTRACT PREVIOUSLY
MADE AND AGREED TO THE ONE DOLLAR COMPENSATION.  THE RESPONDENT, WHOSE
EASEMENT WAS TO BE DESTROYED, INTERVENED IN THE PROCEEDINGS TO CONTEST
"THE ISSUE OF JUST COMPENSATION." 

THE DISTRICT COURT MADE A SUBSTANTIAL AWARD TO THE RESPONDENT AS
COMPENSATION FOR THE TAKING OF ITS FLOWAGE EASEMENT.  THE JUDGMENT WAS
AFFIRMED BY THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, ON THE
AUTHORITY OF THAT COURT'S DECISION IN UNITED STATES V. TWIN CITY POWER
CO., 215 F.2D 592.  218 F.2D 524.  AFTER THE JUDGMENT IN THE TWIN CITY
CASE WAS REVERSED BY THIS COURT, 350 U.S. 222, WE VACATED THE JUDGMENT
IN THIS LITIGATION AND REMANDED THE CASE TO THE COURT OF APPEALS FOR
FURTHER CONSIDERATION IN THE LIGHT OF OUR TWIN CITY DECISION.  350 U.S.
956.  THE COURT OF APPEALS IN TURN REMANDED THE CASE TO THE DISTRICT
COURT WITH INSTRUCTIONS THAT, IN COMPUTING THE AMOUNT OF COMPENSATION
TO BE AWARDED FOR THE TAKING OF THE RESPONDENT'S EASEMENT, THERE SHOULD
BE ELIMINATED "ANY ELEMENT OF VALUE ARISING FROM THE AVAILABILITY OF
THE LAND FOR WATER POWER PURPOSES DUE TO ITS BEING SITUATE ON A
NAVIGABLE STREAM."  235 F.2D 327, 330, REHEARING DENIED 237 F.2D 165. 

ON REMAND THE DISTRICT COURT PROCEEDED IN ACCORDANCE WITH THESE
DIRECTIONS.  COMMISSIONERS WERE APPOINTED AND GIVEN DETAILED
INSTRUCTIONS TO FOLLOW IN COMPUTING THE COMPENSATION TO BE AWARDED THE
RESPONDENT.  THESE INSTRUCTIONS INCLUDED AN EXPLICIT DIRECTION TO
EXCLUDE FROM THE COMPUTATION ANY ELEMENT OF VALUE ARISING FROM THE
AVAILABILITY OF THE LAND FOR WATER POWER PURPOSES ATTRIBUTABLE TO ITS
LOCATION ON A NAVIGABLE STREAM.  (FN2)  THE COMMISSIONERS FOUND THAT,
UNDER THE CRITERIA IMPOSED BY THE COURT, THE VALUE OF THE RESPONDENT'S
EASEMENT WAS $65,520.  THE DISTRICT JUDGE ACCEPTED THESE FINDINGS, AND
IN ACCORDANCE WITH THEM AWARDED THE RESPONDENT THAT SUM.  ON APPEAL THE
JUDGMENT WAS AFFIRMED.  270 F.2D 707. 

WE GRANTED CERTIORARI TO CONSIDER THE GOVERNMENT'S CLAIM THAT THE
RESPONDENT'S EASEMENT HAD NO COMPENSABLE VALUE WHEN APPROPRIATED BY THE
UNITED STATES.  362 U.S. 947.  FOR THE REASONS THAT FOLLOW WE REJECT
THAT ARGUMENT IN THE EXTREME FORM IT HAS BEEN PRESENTED, BUT WE HAVE
CONCLUDED THAT THE JUDGMENT MUST NONETHELESS BE SET ASIDE FOR A
REDETERMINATION OF THE COMPENSATION AWARD. 

IT IS INDISPUTABLE, AS THE GOVERNMENT ACKNOWLEDGES, THAT A FLOWAGE
EASEMENT IS "PROPERTY" WITHIN THE MEANING OF THE FIFTH AMENDMENT.  SEE
UNITED STATES V. WELCH, 217 U.S. 333; PANHANDLE CO. V. HIGHWAY COMM'N,
294 U.S. 613, 618; WESTERN UNION TEL. CO. V. PENN.  R. CO., 195 U.S.
540, 570.  SIMILARLY, THERE CAN BE NO QUESTION THAT THE GOVERNMENT'S
DESTRUCTION OF THAT EASEMENT WOULD ORDINARILY CONSTITUTE A TAKING OF
PROPERTY WITHIN THE MEANING OF THE FIFTH AMENDMENT.  SEE PUMPELLY V.
GREEN BAY CO., 13 WALL.  166, 181; UNITED STATES V. CRESS, 243 U.S.
316, 327-329; UNITED STATES V. KANSAS CITY INS. CO., 339 U.S. 799, 809
811.  NEVERTHELESS, IT IS ARGUED THAT THE GOVERNMENT CANNOT BE REQUIRED
TO PAY COMPENSATION FOR THE DESTRUCTION OF THE EASEMENT IN THE PRESENT
CASE BECAUSE THE EASEMENT WAS SUBJECT TO THE OVERRIDING NAVIGATIONAL
SERVITUDE OF THE UNITED STATES. 

THIS NAVIGATIONAL SERVITUDE - SOMETIMES REFERRED TO AS A "DOMINANT
SERVITUDE," FEDERAL POWER COMM'N V. NIAGARA MOHAWK POWER CORP., 347
U.S. 239, 249, OR A "SUPERIOR NAVIGATION EASEMENT," UNITED STATES V.
GRAND RIVER DAM AUTHORITY, 363 U.S. 229, 231 - IS THE PRIVILEGE TO
APPROPRIATE WITHOUT COMPENSATION WHICH ATTACHES TO THE EXERCISE OF THE
"POWER OF THE GOVERNMENT TO CONTROL AND REGULATE NAVIGABLE WATERS IN
THE INTEREST OF COMMERCE."  UNITED STATES V. COMMODORE PARK, 324 U.S.
386, 390.  THE POWER "IS A DOMINANT ONE WHICH CAN BE ASSERTED TO THE
EXCLUSION OF ANY COMPETING OR CONFLICTING ONE."  UNITED STATES V. TWIN
CITY POWER CO., 350 U.S. 222, 224-225; UNITED STATES V. WILLOW RIVER
CO., 324 U.S. 499, 510.  A CLASSIC DESCRIPTION OF THE SCOPE OF THE
POWER AND OF THE PRIVILEGE ATTENDING ITS EXERCISE IS TO BE FOUND IN THE
COURT'S OPINION IN UNITED STATES V. CHICAGO, M., ST. P.&P.R. CO.: 

"THE DOMINANT POWER OF THE FEDERAL GOVERNMENT, AS HAS BEEN REPEATEDLY
HELD, EXTENDS TO THE ENTIRE BED OF A STREAM, WHICH INCLUDES THE LANDS
BELOW ORDINARY HIGH-WATER MARK.  THE EXERCISE OF THE POWER WITHIN THESE
LIMITS IS NOT AN INVASION OF ANY PRIVATE PROPERTY RIGHT IN SUCH LANDS
FOR WHICH THE UNITED STATES MUST MAKE COMPENSATION.  (CITING CASES.) 
THE DAMAGE SUSTAINED RESULTS NOT FROM THE TAKING OF THE RIPARIAN
OWNER'S PROPERTY IN THE STREAM BED, BUT FROM THE LAWFUL EXERCISE OF A
POWER TO WHICH THAT PROPERTY HAS ALWAYS BEEN SUBJECT."  312 U.S. 592,
596-597. 

SINCE THE PRIVILEGE OR SERVITUDE ONLY ENCOMPASSES THE EXERCISE OF
THIS FEDERAL POWER WITH RESPECT TO THE STREAM ITSELF AND THE LANDS
BENEATH AND WITHIN ITS HIGH-WATER MARK, THE GOVERNMENT MUST COMPENSATE
FOR ANY TAKING OF FAST LANDS WHICH RESULTS FROM THE EXERCISE OF THE
POWER.  THIS WAS THE RATIONALE OF UNITED STATES V. KANSAS CITY INS.
CO., 339 U.S. 799, WHERE THE COURT HELD THAT WHEN A NAVIGABLE STREAM
WAS RAISED BY THE GOVERNMENT TO ITS ORDINARY HIGH-WATER MARK AND
MAINTAINED CONTINUOUSLY AT THAT LEVEL IN THE INTEREST OF NAVIGATION,
THE GOVERNMENT WAS LIABLE "FOR THE EFFECTS OF THAT CHANGE IN THE WATER
LEVEL UPON PRIVATE PROPERTY BEYOND THE BED OF THE STREAM."  339 U.S.,
AT 800-801.  SEE ALSO UNITED STATES V. WILLOW RIVER CO., 324 U.S. 499,
509. 

BUT THOUGH THE GOVERNMENT'S NAVIGATIONAL PRIVILEGE DOES NOT EXTEND TO
LANDS BEYOND THE HIGH-WATER MARK OF THE STREAM, THE PRIVILEGE DOES
AFFECT THE MEASURE OF DAMAGES WHEN SUCH LAND IS TAKEN.  IN UNITED
STATES V. TWIN CITY POWER CO., 350 U.S. 222, WE HELD THAT THE
COMPENSATION AWARDED FOR THE TAKING OF FAST LANDS SHOULD NOT INCLUDE
THE VALUE OF THE LAND AS A SITE FOR HYDROELECTRIC POWER OPERATIONS.  IT
WAS POINTED OUT THAT SUCH VALUE, DERIVED FROM THE LOCATION OF THE LAND,
IS ATTRIBUTABLE IN THE END TO THE FLOW OF THE STREAM - OVER WHICH THE
GOVERNMENT HAS EXCLUSIVE DOMINION.  350 U.S., AT 225-227.  THUS, JUST
AS THE NAVIGATIONAL PRIVILEGE PERMITS THE GOVERNMENT TO REDUCE THE
VALUE OF RIPARIAN LANDS BY DENYING THE RIPARIAN OWNER ACCESS TO THE
STREAM WITHOUT COMPENSATION FOR HIS LOSS, UNITED STATES V. COMMODORE
PARK, 324 U.S. 386, 390-391; SCRANTON V. WHEELER, 179 U.S. 141, 162
165; GIBSON V. UNITED STATES, 166 U.S. 269, 276, IT ALSO PERMITS THE
GOVERNMENT TO DISREGARD THE VALUE ARISING FROM THIS SAME FACT OF
RIPARIAN LOCATION IN COMPENSATING THE OWNER WHEN FAST LANDS ARE
APPROPRIATED. 

THE GOVERNMENT'S ARGUMENT IS THAT THE RATIONALE OF TWIN CITY MAKES
PAYMENT OF ANY COMPENSATION FOR THE DESTRUCTION OF THE RESPONDENT'S
EASEMENT UNNECESSARY IN THE PRESENT CASE.  THIS ARGUMENT IS BASED ON
THE THEORY THAT THE RESPONDENT'S EASEMENT HAD NO VALUE SAVE IN
CONJUNCTION WITH WATER POWER DEVELOPMENT.  THE RESPONDENT ACKNOWLEDGES
THAT THE COURTS BELOW WERE CORRECT IN EXCLUDING ANY VALUE OF THE
EASEMENT DERIVED FROM THE AVAILABILITY OF THE LAND FOR WATER PURPOSES. 
IT ARGUES, HOWEVER, THAT THE EASEMENT HAD OTHER VALUE, DERIVED FROM
USES OF THE LAND NOT DEPENDENT UPON THE FLOW OF THE STREAM.  IF THE
EASEMENT DID HAVE SUCH VALUE, THEN THE GOVERNMENT MUST COMPENSATE FOR
THE EASEMENT'S DESTRUCTION UNDER THE RULE OF KANSAS CITY INS. CO.,
SUPRA, SINCE THE EASEMENT WAS A PROPERTY RIGHT IN FAST LANDS.  THE
BASIC ISSUE IS THUS WHETHER THE RESPONDENT'S EASEMENT MIGHT BE FOUND TO
HAVE VALUE OTHER THAN IN CONNECTION WITH THE FLOW OF THE STREAM. 

WE THINK SUCH A FINDING MIGHT BE WARRANTED.  THE EVIDENCE WAS THAT
THE HIGHEST AND BEST USE OF THE SERVIENT LAND (UNCONNECTED WITH
RIPARIAN USES) WAS FOR AGRICULTURE, TIMBER AND GRAZING PURPOSES.  THE
RESPONDENT HAD AN EXCLUSIVE AND PERPETUAL PROPERTY RIGHT TO DESTROY
THOSE USES AND THE VALUE WHICH THEY CREATED.  THIS RIGHT WAS AN
ATTRIBUTE OF A TRANSFERABLE, COMMERCIAL EASEMENT WITH INTRINSIC VALUE. 
IT HAD BEEN ACQUIRED FOR A VALUABLE CONSIDERATION.  IT HAD A
MARKETABILITY ROUGHLY COMMENSURATE WITH THE MARKETABILITY OF THE
SUBSERVIENT FEE.  ONLY AN ADVENTUROUS PURCHASER WOULD HAVE ACQUIRED THE
UNDERLYING FEE INTEREST IN THE 1540-ACRE TRACT FOR ANY PURPOSE
WHATEVER, WITHOUT ALSO PURCHASING THE EASEMENT. 

IF EASEMENTS TO FLOOD FAST LANDS WERE WORTHLESS AS A MATTER OF LAW
WHEN TAKEN BY THE UNITED STATES, IT WOULD FOLLOW THAT WHEN THE
GOVERNMENT TOOK SUCH AN EASEMENT FROM THE OWNER OF AN UNENCUMBERED
TRACT OF LAND, THE GOVERNMENT WOULD HAVE TO PAY THE OWNER NOTHING. 
THAT IS NOT THE LAW.  UNITED STATES V. KANSAS CITY INS. CO., 339 U.S.
799.  THE GOVERNMENT ITSELF ACKNOWLEDGES THAT IT MUST PAY SUCH A
LANDOWNER FOR THE VALUE OF THE PROPERTY WHICH DOES NOT STEM FROM THE
FLOW OF THE STREAM, THE VALUE BASED UPON THE NONRIPARIAN USES OF THE
PROPERTY. 

IT FOLLOWS THAT THE GOVERNMENT MUST LIKEWISE COMPENSATE THE EASEMENT
OWNER FOR THAT ASPECT OF THE EASEMENT'S VALUE WHICH IS ATTRIBUTABLE NOT
TO WATER POWER, BUT TO THE DEPRECIATIVE IMPACT OF THE EASEMENT UPON THE
NONRIPARIAN USES OF THE PROPERTY.  THE VALUATION OF AN EASEMENT UPON
THE BASIS OF ITS DESTRUCTIVE IMPACT UPON OTHER USES OF THE SERVIENT FEE
IS A UNIVERSALLY ACCEPTED METHOD OF DETERMINING ITS WORTH.  SEE, E.G.,
OLSON V. UNITED STATES, 292 U.S. 246, 253; KARLSON V. UNITED STATES, 82
F.2D 330, 337; JAHR, EMINENT DOMAIN, 252 AND N. 6 (COLLECTING CASES); 4
NICHOLS, EMINENT DOMAIN, SEC. 12.41(2), N. 27 (COLLECTING CASES)(1951
ED.); 1 ORGEL, VALUATION UNDER EMINENT DOMAIN, SEC. 106, AT 454 (2D
ED.); SAXON, APPRAISING FLOWAGE EASEMENTS, 24 APPRAISAL JOURNAL 490,
494. 

BUT THE GOVERNMENT CONTENDS THAT THE MARKET VALUE OF THE EASEMENT TO
THOSE INTERESTED IN DEVELOPING THE NONRIPARIAN USES OF THE FEE CAN BE
IGNORED.  IT IS CLAIMED THAT, DESPITE THE GENERAL PRINCIPLE OF
INDEMNIFICATION UNDERLYING THE FIFTH AMENDMENT, SEE OLSON V. UNITED
STATES, 292 U.S. 246, 255, NO COMPENSATION SHOULD BE ALLOWED FOR THIS
VALUE BECAUSE IT REPRESENTS THE "DESTRUCTIVE FUNCTION" OF THE
EASEMENT.  CF. ROBERTS V. NEW YORK, 295 U.S. 264, 283.  IT IS ARGUED
THAT EQUITABLE PRINCIPLES PROHIBIT COMPENSATION FOR SUCH VALUE.  BUT
EQUITY WORKS THE OTHER WAY.  AT THE VERY LEAST, THE GOVERNMENT'S
ARGUMENT WOULD MEAN, IN A CASE LIKE THIS ONE, THAT COMPENSATION COULD
BE DENIED THE FEE OWNER BECAUSE HE HAD ALREADY CONVEYED THE FLOWAGE
EASEMENT, CF. UNITED STATES V. SPONENBARGER, 308 U.S. 256, 265-266, AND
DENIED THE OWNER OF THE EASEMENT BECAUSE IT WAS VALUELESS AGAINST
CONDEMNATION BY THE UNITED STATES.  THE GOVERNMENT WOULD THUS DESTROY
THE ENTIRE PROPERTY INTEREST IN FAST LANDS WITHOUT COMPENSATION.  "THE
WORD 'JUST' IN THE FIFTH AMENDMENT EVOKES IDEAS OF 'FAIRNESS' AND
'EQUITY'  ...  ."  UNITED STATES V. COMMODITIES CORP., 339 U.S. 121,
124; SEE MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312, 324
326.  THE RESULT CONTENDED FOR BY THE GOVERNMENT WOULD HARDLY COMPORT
WITH THOSE STANDARDS.  THE DISTRICT COURT AND THE COURT OF APPEALS WERE
CORRECT IN HOLDING THAT A FLOWAGE EASEMENT OVER FAST LANDS ADJOINING A
NAVIGABLE STREAM IS PROPERTY WHICH CANNOT BE APPROPRIATED WITHOUT
COMPENSATING THE OWNER.    THE REMAINING QUESTION IS WHETHER THE
DISTRICT COURT'S METHOD OF DETERMINING THE AMOUNT OF COMPENSATION TO BE
AWARDED WAS CORRECT.  THE COURT WAS CLEARLY RIGHT IN EXCLUDING ALL
VALUE ATTRIBUTABLE TO THE RIPARIAN LOCATION OF THE LAND.  UNITED STATES
V. TWIN CITY POWER CO., 350 U.S. 222.  THERE CAN BE NO QUARREL EITHER
WITH THE COURT'S PROCEDURE IN DIRECTING THE COMMISSIONERS TO APPRAISE
FIRST THE EASEMENT TAKEN BY THE GOVERNMENT, AND THEN TO APPORTION ITS
VALUE BETWEEN THE RESPONDENT AND THE OWNER OF THE SUBSERVIENT FEE. 
(FN3)  UNITED STATES V. DUNNINGTON, 146 U.S. 338, 343-345, 350-354. 
AND THE COURT ADOPTED AN ACCEPTABLE METHOD OF APPRAISAL, INDEED THE
CONVENTIONAL METHOD, IN VALUING WHAT WAS ACQUIRED BY THE GOVERNMENT BY
TAKING THE DIFFERENCE BETWEEN THE VALUE OF THE PROPERTY BEFORE AND
AFTER THE GOVERNMENT'S EASEMENT WAS IMPOSED.  SEE OLSON V. UNITED
STATES, 292 U.S. 246, 253.  (FN4)  FOR THESE REASONS WE THINK THAT THE
COURT FOLLOWED AN ENTIRELY ACCEPTABLE PROCEDURE IN VALUING THE TOTALITY
OF WHAT WAS APPROPRIATED BY THE GOVERNMENT. 

IN APPORTIONING THE RESPONDENT'S SHARE OF THIS VALUE, HOWEVER, WE
THINK THAT THE COURT ERRED.  (FN5)  THE COURT APPARENTLY WAS OF THE
VIEW THAT THE SUBSERVIENT FEE INTEREST IN THE 1540 ACRES WAS WITHOUT
VALUE, AND ACCORDINGLY AWARDED TO THE RESPONDENT THE ENTIRE VALUE OF
WHAT THE GOVERNMENT APPROPRIATED IN THAT ACREAGE.  THE RESPONDENT WAS
THUS COMPENSATED AS THOUGH IT WERE THE OWNER, NOT OF AN EASEMENT, BUT
OF AN UNENCUMBERED FEE, AS THE COURT OF APPEALS RECOGNIZED.  270 F.2D,
AT 712.  THE RECORD DOES NOT SUPPORT SUCH AN APPORTIONMENT. 

THE GUIDING PRINCIPLE OF JUST COMPENSATION IS REIMBURSEMENT TO THE
OWNER FOR THE PROPERTY INTEREST TAKEN.  "HE IS ENTITLED TO BE PUT IN AS
GOOD A POSITION PECUNIARILY AS IF HIS PROPERTY HAD NOT BEEN TAKEN.  HE
MUST BE MADE WHOLE BUT IS NOT ENTITLED TO MORE."  OLSON V. UNITED
STATES, 292 U.S. 246, 255.  IN MANY CASES THIS PRINCIPLE CAN READILY BE
SERVED BY THE ASCERTAINMENT OF FAIR MARKET VALUE - "WHAT A WILLING
BUYER WOULD PAY IN CASH TO A WILLING SELLER."  UNITED STATES V. MILLER,
317 U.S. 369, 374.  SEE UNITED STATES V. COMMODITIES CORP., 339 U.S.
121, 123; UNITED STATES V. CORS, 337 U.S. 325, 333.  BUT THIS IS NOT AN
ABSOLUTE STANDARD NOR AN EXCLUSIVE METHOD OF VALUATION.  SEE UNITED
STATES V. COMMODITIES CORP., SUPRA, AT 123; UNITED STATES V. CORS,
SUPRA, AT 332; UNITED STATES V. MILLER, SUPRA, AT 374-375; UNITED
STATES V. TORONTO NAV. CO., 338 U.S. 396. 

THE RECORD IN THE PRESENT CASE, AS MIGHT BE EXPECTED, CONTAINS NO
EVIDENCE OF A MARKET IN FLOWAGE EASEMENTS OF THE TYPE HERE INVOLVED. 
IN THE ABSENCE OF SUCH EVIDENCE, THE COURT VALUED THE FLOWAGE EASEMENT
AS THE EQUIVALENT OF THE VALUE OF THE SERVIENT LANDS FOR AGRICULTURAL,
FORESTRY, OR GRAZING USE.  THE COURT THUS ASCRIBED A MAXIMUM VALUE TO
THE RESPONDENT'S EASEMENT, A VALUE NOT SUPPORTED BY THE RECORD. 

WE THINK THE CORRECT APPROACH TO THE PROBLEM OF VALUATION IN A CASE
OF THIS KIND WAS FORMULATED BY THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT IN AUGUSTA POWER CO. V. UNITED STATES, 278 F.2D 1.  THE BASIC
ISSUES IN THAT CASE WERE VIRTUALLY INDISTINGUISHABLE FROM THOSE
PRESENTED HERE.  (FN6)  WE ARE CONTENT TO ADOPT THE LANGUAGE OF JUDGE
RIVES' OPINION WITH RESPECT TO THE STANDARD TO BE FOLLOWED IN VALUING
FLOWAGE EASEMENTS OF THIS CHARACTER: 

"IF THE POWER COMPANY HAD BEEN SUCCESSFUL IN ASSEMBLING THE NECESSARY
LANDS, AND IN SECURING APPROVAL OF THE FEDERAL POWER COMMISSION, AND
THEREAFTER HAD ACTUALLY EXERCISED ITS EASEMENTS BY PERMANENTLY FLOODING
THE LANDS, THEIR VALUE FOR AGRICULTURAL AND FORESTRY PURPOSES WOULD
HAVE BEEN DESTROYED.  IF, WITH THAT STATUS, THE UNITED STATES HAD
CONDEMNED THE LANDS, THE COMPENSATION DUE WOULD BE PAYABLE TO THE POWER
COMPANY.  THAT COMPENSATION WOULD NOT INCLUDE THE HYDROELECTRIC POWER
VALUE, BUT IT WOULD EMBRACE THE POWER COMPANY'S PROPERTY RIGHT TO
DESTROY THE VALUE OF THE LANDS FOR AGRICULTURAL AND FORESTRY PURPOSES. 

"AT THE OTHER EXTREME, IF FACTORS SUCH AS DIFFICULTY OF ASSEMBLAGE OF
ALL NECESSARY LANDS, THE INCREASING ECONOMIC ADVANTAGE OF STEAM PLANTS
OVER HYDROELECTRIC PLANTS, THE NEED FOR ADDITIONAL POWER IN THE
PARTICULAR AREA, ETC., HAD MADE IT CERTAIN THAT THE FLOWAGE EASEMENTS
WOULD NEVER BE EXERCISED BY THE ...  POWER COMPANY OR ITS ASSIGNS,
EXCLUDING THE UNITED STATES, THEN SUCH COMPENSATION AS MIGHT BE DUE
WOULD BE PAYABLE TO THE OWNERS OF THE FEE TITLE AND NOTHING TO THE  ...
POWER COMPANY. 

"BETWEEN THE TWO EXTREMES JUST ILLUSTRATED, THE RESPECTIVE VALUES OF
THE FEE AND OF THE EASEMENT WOULD FLUCTUATE FROM TIME TO TIME DEPENDING
ON THE PROBABILITY OR IMPROBABILITY OF ACTUAL EXERCISE OF THE EASEMENT
BY THE  ...  POWER COMPANY OR ITS ASSIGNS.  IF ALL INTERESTED PARTIES
WERE BEFORE THE COURT, THE MAXIMUM WHICH THE UNITED STATES WOULD BE
REQUIRED TO PAY WOULD BE THE VALUE OF THE LANDS, NOT INCLUDING THEIR
VALUE FOR HYDROELECTRIC POWER PURPOSES.  THAT IS, HOWEVER, A MAXIMUM,
AND NOT NECESSARILY THE MEASURE OF WHAT THE UNITED STATES WOULD HAVE TO
PAY UNDER ANY AND ALL CIRCUMSTANCES  ...  . 

     *   *         *         *         * 

"  ...  IT SEEMS TO US THAT THE MAXIMUM COMPENSATION PAYABLE FOR THE
FLOWAGE EASEMENT UNDER ANY CONCEIVABLE CIRCUMSTANCES IS SO MUCH OF THE
VALUE OF THE LANDS FOR AGRICULTURAL AND FORESTRY PURPOSES AND FOR ANY
OTHER USES, NOT INCLUDING HYDROELECTRIC POWER VALUE, AS THE EASEMENT
OWNER HAS A RIGHT TO DESTROY OR DEPRECIATE.  THAT MAXIMUM IS MORE
SIMPLY EXPRESSED IN THE CRITERION ADOPTED BY THE COMMISSION, I.E., 'THE
DIFFERENCE IN THE VALUE OF THE LAND WITH AND WITHOUT THE FLOWAGE
EASEMENT.'  SUBJECT TO THAT MAXIMUM, THE ACTUAL MEASURE OF COMPENSATION
PAYABLE FOR THE FLOWAGE EASEMENT IS THE VALUE OF THE EASEMENT TO ITS
OWNER.  'THE QUESTION IS, WHAT HAS THE OWNER LOST?  NOT, WHAT HAS THE
TAKER GAINED?'  1 ORGEL ON VALUATION UNDER EMINENT DOMAIN, P. 352." 
AUGUSTA POWER CO. V. UNITED STATES, 278 F.2D 1, 4-5.  (FOOTNOTES
OMITTED.) 

IN A WORD, THE VALUE OF THE EASEMENT IS THE NONRIPARIAN VALUE OF THE
SERVIENT LAND DISCOUNTED BY THE IMPROBABILITY OF THE EASEMENT'S
EXERCISE.  IT IS TO BE EMPHASIZED THAT IN ASSESSING THIS IMPROBABILITY,
NO WEIGHT SHOULD BE GIVEN TO THE PROSEPCT OF GOVERNMENTAL
APPROPRIATION.  THE VALUE OF THE EASEMENT MUST BE NEITHER ENHANCED NOR
DIMINISHED BY THE SPECIAL NEED WHICH THE GOVERNMENT HAD FOR IT.  UNITED
STATES V. CORS, 337 U.S. 325, 332-334; UNITED STATES V. MILLER, 317
U.S. 369; OLSON V. UNITED STATES, 292 U.S. 246, 261; UNITED STATES V.
CHANDLER-DUNBAR WATER POWER CO., 229 U.S. 53, 76.  THE COURT MUST
EXCLUDE ANY DEPRECIATION IN VALUE CAUSED BY THE PROSPECTIVE TAKING ONCE
THE GOVERNMENT "WAS COMMITTED" TO THE PROJECT.  UNITED STATES V.
MILLER, SUPRA, AT 376-377; SEE UNITED STATES V. CORS, SUPRA, AT 332. 
ACCORDINGLY, THE IMPACT OF THAT EVENT UPON THE LIKELIHOOD OF ACTUAL
EXERCISE OF THE EASEMENT CANNOT BE CONSIDERED.  AS ONE WRITER HAS
POINTED OUT, "IT WOULD BE MANIFESTLY UNJUST TO PERMIT A PUBLIC
AUTHORITY TO DEPRECIATE PROPERTY VALUES BY A THREAT  ...  OF THE
CONSTRUCTION OF A GOVERNMENT PROJECT AND THEN TO TAKE ADVANTAGE OF THIS
DEPRECIATION IN THE PRICE WHICH IT MUST PAY FOR THE PROPERTY" WHEN
EVENTUALLY CONDEMNED.  1 ORGEL, VALUATION UNDER EMINENT DOMAIN, SEC.
105, AT 447 (2D ED.); SEE CONGRESSIONAL SCHOOL OF AERONAUTICS V. STATE
ROADS COMM'N, 218 MD. 236, 249-250, 146 A.2D 558, 565. 

THE JUDGMENT IS VACATED, AND THE CASE REMANDED TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION.  IT IS SO
ORDERED. 

FN1  THE RECORD INDICATES THAT THE OWNER WAS WILLING TO ACCEPT THIS
NOMINAL AMOUNT BECAUSE OF HER INTEREST IN DEVELOPING THE BALANCE OF THE
ESTATE AS A WILD GAME PRESERVE, A USE WHICH PRESUMABLY WOULD BE
ENHANCED BY A CONTIGUOUS ARTIFICIAL LAKE. 

FN2  THE DETAILED INSTRUCTIONS WERE OTHERWISE BASED UPON A
TRADITIONAL METHOD OF VALUING WHAT THE GOVERNMENT APPROPRIATED, I.E.,
THE DIFFERENCE IN THE VALUE OF THE SERVIENT LAND BEFORE AND AFTER THE
GOVERNMENT'S EASEMENT WAS IMPOSED. 

FN3  THE OWNER OF THE FEE, HAVING AGREED TO CONVEY HER INTEREST FOR
ONE DOLLAR, WOULD, OF COURSE, NOT RECEIVE ANY LARGER AMOUNT APPORTIONED
TO HER INTEREST.  SEE ALBRECHT V. UNITED STATES, 329 U.S. 599. 

FN4  IN DETERMINING THE VALUE OF THE GOVERNMENT'S EASEMENT, THE COURT
ASSUMED ITS PROPORTIONS TO BE LIMITED TO 1540 ACRES, RATHER THAN TO THE
1840 ACRES ACTUALLY TAKEN.  THIS WAS ENTIRELY PERMISSIBLE.  SINCE THE
OWNER OF THE FEE WAS MAKING NO CLAIM, THE ONLY OBJECTIVE OF THE
PROCEEDINGS IN THE DISTRICT COURT WAS TO DETERMINE THE AMOUNT OF
COMPENSATION TO BE AWARDED THE RESPONDENT.  IT WAS QUITE LOGICAL,
THEREFORE, TO APPRAISE ONLY THAT PART OF THE GOVERNMENT'S EASEMENT
WHICH COINCIDED WITH THE RESPONDENT'S PROPERTY INTEREST, AND THEREAFTER
TO APPORTION TO THE RESPONDENT ITS SHARE OF WHAT WAS TAKEN BY THAT MUCH
OF THE GOVERNMENT'S APPROPRIATION. 

FN5  THE COURT DID NOT ERR, HOWEVER, IN INCLUDING IN THE AWARD TO THE
RESPONDENT AN AMOUNT FOR DAMAGES TO THE RESIDUE OF THE ESTATE.  THE
RESPONDENT WAS THE RECORD OWNER OF THE RIGHT TO DAMAGE THE RESIDUE, A
RIGHT WHICH THE OWNER HAD EXPRESSLY CONVEYED BY SEPARATE DEED FOR A
VALUABLE CONSIDERATION.  THIS WAS A PROPERTY RIGHT IN THE RESIDUE,
MEASURABLE BY A MONETARY AWARD TO COVER DAMAGES TO THE SAME.  THE
AMOUNT OF THIS PORTION OF THE AWARD WOULD DEPEND UPON THE PROBABLILTY
OF THE RESPONDENT'S EASEMENT BEING EXERCISED.  SEE ACCOMPANYING TEXT,
INFRA. 

FN6  IN THAT CASE THE GOVERNMENT HAD ALSO ARGUED UPON THE BASIS OF
OUR TWIN CITY DECISION, THAT A PRIVATE FLOWAGE EASEMENT OVER FAST LANDS
IS VALUELESS AS A MATTER OF LAW WHEN TAKEN BY THE GOVERNMENT FOR
NAVIGATIONAL PURPOSES.  THE ARGUMENT WAS UNAMBIGUOUSLY REJECTED: "VERY
CLEARLY, THE UNITED STATES IS IN ERROR WHEN IT CLAIMS  ...  THAT IT
'HAS A DOMINANT SERVITUDE WHICH IT CAN EXERCISE IN ITS DISCRETION AND
WITHOUT COMPENSATION.'"  278 F.2D, AT 4. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IF THE 1,840 ACRES IN QUESTION LAY BETWEEN LOW AND HIGH WATER, THE
UNITED STATES BY KEEPING THE WATER LEVEL AT THE ORDINARY HIGH-WATER
CONTOUR WOULD NOT IN MY VIEW APPROPRIATE ANY PRIVATE PROPERTY.  FOR
THAT IS USE OF THE BED OF THE STREAM PURSUANT TO THE NAVIGATION
SERVITUDE.  MOST OF OUR CASES DEAL WITH THAT.  IT WAS IN THAT DOMAIN
THAT UNITED STATES V. KANSAS CITY INS. CO., 339 U.S. 799, AROSE. 

IF THE 1,840 ACRES WERE A DAM SITE, ANY OF THEIR VALUE FOR SUCH A
PURPOSE WOULD BE NONCOMPENSABLE WITHIN THE RULING OF UNITED STATES V.
TWIN CITY POWER CO., 350 U.S. 222.  DAM-SITE VALUE IS WATER-POWER
VALUE.  AND THE FLOW OF THE STREAM IN ITS NATURAL STATE OR THROUGH A
STRUCTURE THAT IS LOW OR HIGH PROVIDES "A HEAD OF WATER" (UNITED STATES
V. WILLOW RIVER CO., 324 U.S. 499, 502) THAT OFTEN HAS GREAT VALUE. 
BUT WHEN IT IS IN A NAVIGABLE STREAM, IT IS NOT A PROPERTY RIGHT
SUBJECT TO PRIVATE OWNERSHIP AND COMPENSATION UNDER THE FIFTH
AMENDMENT.  THERE IS "NO PRIVATE PROPERTY IN THE FLOW" OF THIS
NAVIGABLE STREAM.  UNITED STATES V. APPALACHIAN POWER CO., 311 U.S.
377, 427. 

YET IF THE FEDERAL GOVERNMENT BUILDS A DAM THAT RAISES THE WATER
ABOVE THE ORDINARY HIGH-WATER MARK BY A FOOT, BY A HUNDRED FEET, OR BY
FIVE HUNDRED FEET, IT ASSERTS DOMINION OVER PROPERTY NOT WITHIN ITS
NAVIGATIONAL SERVITUDE.  AS WE SAID IN UNITED STATES V. WILLOW RIVER
CO., SUPRA, 509, "HIGH-WATER MARK BOUNDS THE BED OF THE RIVER.  LANDS
ABOVE IT ARE FAST LANDS AND TO FLOOD THEM IS A TAKING FOR WHICH
COMPENSATION MUST BE PAID." 

IT IS IN THE LATTER DOMAIN THAT THE PRESENT CONTROVERSY LIES.  THE
FLOWAGE RIGHTS BEING CONDEMNED ARE RIGHTS TO FLOOD A PART OF THE 1,840
ACRE TRACT THAT LIES ABOVE THE "USUAL WATER LINE" WHICH I UNDERSTAND TO
MEAN LAND ABOVE THE ORDINARY HIGH-WATER MARK. 

WHATEVER MAY BE THE REASON WHY THIS PARTICULAR INTEREST IN THE
UPLANDS WAS ACQUIRED, THE OWNER STANDS IN THE SHOES OF HIS PREDECESSOR
IN TITLE.  THE OWNER OF THE EASEMENT IS ENTITLED, AS THE COURT HOLDS,
TO NO WATER-POWER VALUE.  THE OWNER IS, IN OTHER WORDS, ENTITLED TO
NOTHING THAT GAINS VALUE FROM THE FLOW OF THE STREAM, FROM ANY HEAD OF
WATER, OR FROM THE STRATEGIC LOCATION OF HIS LAND FOR HYDROELECTRIC
DEVELOPMENT OF THE RIVER.  BUT THE OWNER OF THE EASEMENT AND THE OWNER
OF THE SUBSERVIENT FEE HAVE ALL THE OTHER PARTS OF THE BUNDLE OF RIGHTS
THAT REPRESENT "PROPERTY" WITHIN THE MEANING OF THE FIFTH AMENDMENT. 

HENCE, I JOIN THE OPINION OF THE COURT. 

MR. JUSTICE WHITTAKER, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK JOIN, DISSENTING. 

IN THE HOPE THAT IT MIGHT EVENTUALLY ACQUIRE FROM THE FEDERAL
GOVERNMENT A LICENSE TO CONSTRUCT A POWER DAM ACROSS A NAVIGABLE RIVER,
THE POWER COMPANY ACQUIRED, BY CONVEYANCES FROM THE FEE OWNERS,
EASEMENTS PERMANENTLY TO FLOOD 1,540 ACRES OF FAST LANDS ADJACENT TO
THE RIVER.  IT DID NOT OWN ANY OTHER ESTATE OR INTEREST IN THOSE LANDS,
AND THE EXERCISE OF ITS EASEMENT TO FLOOD THEM WAS, OF COURSE,
NECESSARILY SUBJECT TO THE PRIOR ISSUANCE OF A FEDERAL LICENSE
AUTHORIZING THE PRIVATE DAMMING OF THE RIVER, FOR WITHOUT SUCH A
LICENSE THE POWER COMPANY COULD NOT DAM THE RIVER, SEE SEC. 4 OF THE
FEDERAL POWER ACT, 41 STAT.  1065, 16 U.S.C. SEC. 797, AND THUS BACK
ITS WATERS UPON THOSE LANDS, AND IT HAD NO RIGHT TO USE THE LANDS FOR
ANY OTHER PURPOSE. 

NO FEDERAL LICENSE TO DAM THE RIVER AT OR NEAR THIS POINT WAS EVER
ISSUED.  INSTEAD, THE FEDERAL GOVERNMENT ITSELF DETERMINED TO CONSTRUCT
A POWER DAM AT THIS POINT IN THE RIVER, AND AS A NECESSARY CONSEQUENCE
TO INUNDATE THESE LANDS AS PART OF THE RESULTING RESERVOIR.  TO THAT
END, IT BROUGHT THIS CONDEMNATION ACTION AGAINST THE POWER COMPANY, AND
THEREIN FILED ITS DECLARATION OF TAKING, AND TOOK, THE LATTER'S
EASEMENT TO BACK FLOW THESE LANDS, AND THE QUESTION HERE IS:  WHAT
VALUE, IF ANY, DID THAT EASEMENT HAVE TO THE POWER COMPANY AT THE TIME
THE GOVERNMENT TOOK IT? 

WE THINK THAT, AS A MATTER OF FACT AND OF LAW, IT DID NOT HAVE ANY
VALUE WHATEVER AT THAT TIME.  THIS IS SO BECAUSE:  (1) THE SOLE AND
ONLY RIGHT THE POWER COMPANY EVER HAD IN THESE LANDS WAS THE RIGHT TO
DAM AND BACK THE RIVER'S WATERS UPON THEM; (2) THE EXERCISE OF THAT
RIGHT WAS ALWAYS CONTINGENT AND DEPENDENT UPON THE PRIOR ISSUANCE OF A
FEDERAL LICENSE AUTHORIZING THE PRIVATE DAMMING OF THE RIVER (16 U.S.C.
SEC. 797(E)), FOR THE GOVERNMENT'S POWER OVER THE FLOW OF A NAVIGABLE
STREAM "IS A DOMINANT ONE WHICH CAN BE ASSERTED TO THE EXCLUSION OF ANY
COMPETING OR CONFLICTING ONE," UNITED STATES V. TWIN CITY POWER CO.,
350 U.S. 222, 224-225; AND (3) WHEN THE GOVERNMENT DETERMINED TO
CONSTRUCT THE POWER DAM AND APPURTENANT FACILITIES FOR ITS OWN BENEFIT,
IT NECESSARILY "DISPLACED ALL COMPETING INTERESTS AND APPROPRIATED THE
ENTIRE FLOW OF THE RIVER FOR THE DECLARED PUBLIC PURPOSE," UNITED
STATES V. TWIN CITY POWER CO., SUPRA, AT 225.  (4) THEREFORE, AT THE
TIME THE GOVERNMENT TOOK THIS EASEMENT, THERE WAS NO POSSIBILITY THAT
THE POWER COMPANY COULD EVER DAM AND BACK THE RIVER'S WATERS UPON THESE
LANDS AND, INASMUCH AS IT HAD NO ESTATE IN OR RIGHT TO USE THE LANDS
FOR ANY OTHER PURPOSE, IT MUST FOLLOW THAT THE EASEMENT WAS WHOLLY
WITHOUT VALUE TO THE POWER COMPANY FOR ANY PURPOSE AT THE TIME THE
GOVERNMENT TOOK IT. 

HOWEVER, THE COURT, AFTER ADVERTING TO THE POWER COMPANY'S ARGUMENT
THAT "THE EASEMENT HAD OTHER VALUE, DERIVED FROM USES OF THE LAND NOT
DEPENDENT UPON THE FLOW OF THE STREAM," SAYS:  "WE THINK SUCH A FINDING
MIGHT BE WARRANTED."  IT FINDS SUCH VALUE TO EXIST IN THE "RIGHT TO
DESTROY AGRIGULTURAL, TIMBER AND GRAZING USES AND THE VALUE WHICH THEY
CREATED." 

BUT THE RIGHT TO "DESTROY" AGRICULTURAL USES, ALTHOUGH A PROPER
CONSIDERATION IN DETERMINING THE DAMAGES TO BE PAID TO THE OWNER OF THE
UNENCUMBERED FEE WHEN AN EASEMENT TO FLOW IS BEING CONDEMNED AND TAKEN
FROM HIM, UNITED STATES V. KANSAS CITY INS. CO., 339 U.S. 799; OLSON V.
UNITED STATES, 292 U.S. 246, 253-254, IS NOT A THING OF VALUE - EVEN OF
RECOGNIZABLE "HOLD UP" VALUE - TO THE OWNER OF THE EASEMENT, UNITED
STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, 79-80, EXCEPT FOR THE
AUTHORIZED FLOODING USE, OR POSSIBLY AS AGAINST THE OWNER OF THE
SUBSERVIENT FEE WHO MIGHT BE WILLING TO PAY FOR THE RIDDANCE OF THE
EASEMENT AND RESTORATION OF HIS ORIGINAL RIGHT TO MAKE AGRICULTURAL
USES OF THE LAND.  SEE ROBERTS V. NEW YORK CITY, 295 U.S. 264, 282
283.  AT ALL EVENTS, THE CLINCHER IS THAT ANY RIGHT OF THE POWER
COMPANY TO "DESTROY" AGRICULTURAL USES OF THESE LANDS CONSISTED SOLELY
OF ITS RIGHT TO DAM AND BACK THE RIVER'S WATERS UPON THEM, AND WHEN THE
GOVERNMENT DETERMINED TO CONSTRUCT THE DAM FOR ITS OWN BENEFIT EVEN
THAT NEBULOUS "RIGHT" WAS GONE.  HENCE, THE EASEMENT HAD NO POSSIBLE
VALUE - NOT EVEN A NUISANCE VALUE - TO THE POWER COMPANY AT THE TIME
THE GOVERNMENT TOOK IT. 

IT IS SETTLED THAT THE "JUST COMPENSATION" REQUIRED BY THE FIFTH
AMENDMENT TO BE PAID FOR THE TAKING OF PRIVATE PROPERTY FOR PUBLIC USE
IS THE VALUE AT THE VERY TIME OF THE TAKING TO THE PERSON FROM WHOM
TAKEN.  "THE VALUE SHOULD BE FIXED AS OF THE DATE OF THE PROCEEDINGS
AND WITH REFERENCE TO THE LOSS THE OWNER SUSTAINS, CONSIDERING THE
PROPERTY IN ITS CONDITION AND SITUATION AT THE TIME IT IS TAKEN AND NOT
AS ENHANCED BY THE PURPOSE FOR WHICH IT WAS TAKEN.  KERR V. PARK
COMMISSIONERS, 117 U.S. 379, 387; SHOEMAKER V. UNITED STATES, 147 U.S.
282, 304, 305."  UNITED STATES V. CHANDLER-DUNBAR CO., SUPRA, AT 76. 

THE FIFTH AMENDMENT "MERELY REQUIRES THAT AN OWNER OF PROPERTY TAKEN
SHOULD BE PAID FOR WHAT IT TAKEN FROM HIM  ...  .  AND THE QUESTION IS
WHAT HAS THE OWNER LOST, NOT WHAT HAS THE TAKER GAINED."   BOSTON
CHAMBER OF COMMERCE V. BOSTON, 217 U.S. 189, 195.  SEE ALSO UNITED
STATES V. TWIN CITY POWER CO., SUPRA, AT 228.  AT THE TIME OF THIS
TAKING, THE GOVERNMENT HAD DETERMINED TO BUILD THE DAM ITSELF, THUS
PRECLUDING ANY POSSIBILITY THAT THE POWER COMPANY COULD EVER DAM AND
BACK THE RIVER'S WATERS UPON THESE LANDS, AND, INASMUCH AS IT HAD NO
RIGHT TO USE THEM FOR ANY OTHER PURPOSE, IT MUST FOLLOW THAT THE
EASEMENT HAD NO POSSIBLE VALUE TO THE POWER COMPANY AT THE TIME THE
GOVERNMENT TOOK IT.  SURELY, "THE GOVERNMENT CANNOT BE JUSTLY REQUIRED
TO PAY FOR AN ELEMENT OF VALUE WHICH DID NOT THEN INHERE IN THE
EASEMENT."  UNITED STATES V. CHANDLER-DUNBAR CO., SUPRA, AT 76. 

NOR DOES THE FIFTH AMENDMENT CONTEMPLATE A DISREGARD OF SEPARATE
ESTATES AND INTERESTS IN LAND.  IT CONTEMPLATES ONLY THAT THE CONDEMNEE
SHALL BE PAID "JUST COMPENSATION" FOR THE PARTICULAR ESTATE OR INTEREST
THAT HE OWNED AND THAT WAS TAKEN FROM HIM.  IN BOSTON CHAMBER OF
COMMERCE V. BOSTON, SUPRA, THE CITY CONDEMNED FOR PUBLIC STREET
PURPOSES A PART OF A TRACT OF LAND OWNED IN FEE BY THE CHAMBER OF
COMMERCE, BUT OVER A LARGE PORTION OF THE PART CONDEMNED A WHARF
COMPANY OWNED "AN EASEMENT OF WAY, LIGHT AND AIR."  THE CHAMBER OF
COMMERCE AND THE WHARF COMPANY AGREED BETWEEN THEMSELVES TO CLAIM, AND
THEY SOUGHT, DAMAGES TO BOTH ESTATES "IN A LUMP SUM."  IF THIS COULD BE
DONE, IT WAS AGREED THAT THE ESTATE, CONSIDERED AS THE SOLE
UNENCUMBERED ESTATE OF A SINGLE PERSON, WAS WORTH 12 TIMES MORE THAN IF
THE DAMAGE SHOULD BE ASSESSED ACCORDING TO THE CONDITION OF THE TITLE
AT THE TIME.  THE CITY'S CONTENTION THAT THE SEVERAL ESTATES SHOULD BE
SEPARATELY VALUED WAS SUSTAINED BY THE TRIAL COURT, AND THIS COURT,
SPEAKING THROUGH MR. JUSTICE HOLMES, AFFIRMED, SAYING:

"BUT THE CONSTITUTION DOES NOT REQUIRE A DISREGARD OF THE MODE OF
OWNERSHIP - OF THE STATE OF THE TITLE.  IT DOES NOT REQUIRE A PARCEL OF
LAND TO BE VALUED AS AN UNENCUMBERED WHOLE WHEN IT IS NOT HELD AS AN
UNENCUMBERED WHOLE.  IT MERELY REQUIRES THAT AN OWNER OF PROPERTY TAKEN
SHOULD BE PAID FOR WHAT IS TAKEN FROM HIM  ...  .  AND THE QUESTION IS
WHAT HAS THE OWNER LOST, NOT WHAT HAS THE TAKER GAINED."  217 U.S., AT
195. 

THE GOVERNMENT CANNOT HERE, JUST AS THE CITY COULD NOT THERE, "BE
MADE TO PAY FOR A LOSS OF THEORETICAL CREATION, SUFFERED BY NO ONE IN
FACT," ID., AT 194, FOR THERE IS "NO JUSTICE IN REQUIRING THE
GOVERNMENT TO PAY FOR A LOSS SUFFERED BY NO ONE IN FACT."  UNITED
STATES V. CHANDLER-DUNBAR CO., SUPRA, AT 76. 

HERE THE POWER COMPANY RESTS SOLELY UPON A CLAIMED RIGHT TO BACK THE
RIVER'S WATERS UPON THESE LANDS.  IT THUS NECESSARILY DEPENDS UPON AND
CLAIMS A RIGHT IN AND TO USE THE WATERS OF THE RIVER FOR THAT PURPOSE. 
THIS COURT HELD IN THE TWIN CITY CASE, SUPRA, THAT THE OWNER OF
ADJOINING FAST LANDS HAS NO INTEREST IN THE WATERS OF A NAVIGABLE
RIVER, AND THAT THOSE WATERS DO NOT, AS AGAINST THE GOVERNMENT,
ATTRIBUTE TO THE VALUE OF SUCH LANDS.  IT SAID: 

"IF THE OWNER OF THE FAST LANDS CAN DEMAND WATER-POWER VALUE AS PART
OF HIS COMPENSATION, HE GETS THE VALUE OF A RIGHT THAT THE GOVERNMENT
IN THE EXERCISE OF ITS DOMINANT SERVITUDE CAN GRANT OR WITHHOLD AS IT
CHOOSES.  THE RIGHT HAS VALUE OR IS AN EMPTY ONE DEPENDENT SOLELY ON
THE GOVERNMENT.  WHAT THE GOVERNMENT CAN GRANT OR WITHHOLD AND EXPLOIT
FOR ITS OWN BENEFIT HAS A VALUE THAT IS PECULIAR TO IT AND THAT NO
OTHER USER ENJOYS."  350 U.S., AT 228. 

THE GOVERNMENT, BY DETERMINING TO EXPLOIT ITS STREAM FOR ITS OWN
BENEFIT, "DISPLACED ALL COMPETING INTERESTS AND APPROPRIATED THE ENTIRE
FLOW OF THE RIVER FOR THE DECLARED PUBLIC PURPOSE."  ID., AT 225.  IN
THESE CIRCUMSTANCES, "TO REQUIRE THE UNITED STATES TO PAY FOR THIS
WATER-POWER VALUE WOULD BE TO CREATE PRIVATE CLAIMS IN THE PUBLIC
DOMAIN."  ID., AT 228. 

THE TWIN CITY AND CHANDLER-DUNBAR CASES, SUPRA, SEEM CLEARLY TO
REQUIRE THE CONCLUSION, ON THE FACTS HERE, THAT THE EASEMENT TO FLOOD
THESE LANDS HAD NO VALUE TO THE POWER COMPANY AT THE TIME THE
GOVERNMENT TOOK IT. 

IT WAS ITS FAILURE TO OBTAIN A FEDERAL LICENSE TO DAM THE RIVER - NOT
THE TAKING OF ITS EASEMENT TO FLOW - THAT HURT THE POWER COMPANY, FOR
ONCE THE GOVERNMENT DETERMINED TO CONSTRUCT THE POWER DAM FOR ITS OWN
USE AND BENEFIT NO POSSIBILITY REMAINED THAT THE POWER COMPANY COULD
EVER USE THE EASEMENT, AND HENCE ITS ENTIRE VALUE WAS GONE. 

TO THE COURT'S OBSERVATION THAT "THE GOVERNMENT'S ARGUMENT WOULD
MEAN, IN A CASE LIKE THIS ONE, THAT COMPENSATION COULD BE DENIED THE
FEE OWNER BECAUSE HE HAD ALREADY CONVEYED THE FLOWAGE EASEMENT,  ...
AND DENIED THE OWNER OF THE EASEMENT BECAUSE IT WAS VALUELESS AGAINST
CONDEMNATION BY THE UNITED STATES," THE LAW REQUIRES US TO SAY:
EXACTLY SO.  THE FEE OWNERS HAD SOLD AND CONVEYED, FOR CONSIDERATION
SATISFACTORY TO THEM, THE RIGHT PERMANENTLY TO FLOOD THESE LANDS AND NO
LONGER OWNED ANY INTEREST IN THAT ESTATE.  INDEED, THEY CLAIM NONE. 
THAT ESTATE IN THESE LANDS WAS NOT TAKEN BY THE GOVERNMENT FROM THEM. 
NOT HAVING TAKEN ANYTHING FROM THE FEE OWNERS, THE GOVERNMENT DOES NOT
OWE THEM "JUST COMPENSATION" FOR ANYTHING.  THIS ALSO DEMONSTRATES THE
COURT'S FURTHER ERROR IN REMANDING THE CASE FOR "APPORTIONMENT" OF THE
"DAMAGES" BETWEEN THE OWNER OF THE EASEMENT AND THE OWNERS OF THE FEE. 
IN NO EVENT COULD THERE BE ANYTHING TO APPORTION TO THE FEE OWNERS. 
WHAT THE GOVERNMENT TOOK WAS THE EASEMENT.  IT BELONGED SOLELY TO THE
POWER COMPANY, AND IF IT HAD ANY VALUE AT THE TIME IT WAS TAKEN BY THE
GOVERNMENT, THAT VALUE BELONGED SOLELY TO THE POWER COMPANY.  BUT THE
EASEMENT HAD NO VALUE TO THE POWER COMPANY AT THE TIME IT WAS TAKEN BY
THE GOVERNMENT.  THE POWER COMPANY'S SOLE ESTATE IN THESE LANDS WAS AN
EASEMENT TO BACK THE RIVER'S WATERS UPON THEM.  THE EXERCISE - AND
HENCE THE VALUE - OF THAT EASEMENT WAS ALWAYS CONTINGENT UPON THE PRIOR
ISSUANCE OF A FEDERAL LICENSE AUTHORIZING THE PRIVATE DAMMING OF THE
RIVER.  NO SUCH LICENSE WAS EVER ISSUED.  INSTEAD, THE GOVERNMENT
DETERMINED TO CONSTRUCT THE DAM AND APPURTENANT FACILITIES FOR ITS OWN
BENEFIT.  THIS LEFT NO POSSIBILITY THAT THE POWER COMPANY COULD EVER
DAM AND BACK THE RIVER'S WATERS UPON THESE LANDS, AND INASMUCH AS IT
HAD NO RIGHT TO USE THEM FOR ANY OTHER PURPOSE, IT SEEMS CLEARLY TO
FOLLOW THAT THE EASEMENT WAS WHOLLY WITHOUT VALUE TO THE POWER COMPANY
FOR ANY PURPOSE AT THE TIME THE GOVERNMENT TOOK IT. 

IT IS OF COURSE TRUE, AS ALREADY STATED, THAT IF THE GOVERNMENT HAD
TAKEN THE RIGHT TO FLOW THESE LANDS FROM THE OWNER OF THE UNENCUMBERED
FEE, THE LAW WOULD REQUIRE IT TO PAY HIS DAMAGES RESULTING FROM THAT
DEPRIVATION OF HIS RIGHT TO MAKE AGRICULTURAL AND SIMILAR SURFACE USES
OF THESE LANDS.  UNITED STATES V. KANSAS CITY INS. CO., SUPRA.  FROM
THAT PREMISE IT IS ARGUED THAT THE OWNER OF THE EASEMENT TO FLOW,
HAVING ACQUIRED IT FROM THE OWNER OF THE UNENCUMBERED FEE, "STANDS IN
THE SHOES OF HIS PREDECESSOR IN TITLE" AND IS THUS ENTITLED TO LIKE
DAMAGES FROM THE GOVERNMENT WHEN IT TAKES THAT EASEMENT FROM HIM.  BUT
THAT PREMISE IS ERRONEOUS.  THE ERROR LIES IN THE OBVIOUS FACT THAT THE
POWER COMPANY NEVER ACQUIRED OR OWNED ANY RIGHT TO MAKE AGRICULTURAL
USES OF THESE LANDS.  HENCE IT DID NOT SUFFER, AND IS NOT ENTITLED TO
RECOVER, ANY DAMAGES FOR THE DESTRUCTION OF SUCH USES.  QUITE
DISTINGUISHABLE FROM AN UNENCUMBERED FEE, THE ONLY ESTATE OF THE POWER
COMPANY IN THESE LANDS WAS THE RIGHT TO STORE THE RIVER'S WATERS UPON
THEM.  ONCE THE GOVERNMENT DETERMINED TO CONSTRUCT THE POWER DAM FOR
ITS OWN USE NO POSSIBILITY REMAINED THAT THE POWER COMPANY COULD EVER
USE THE LANDS FOR THAT PURPOSE AND, HAVING NO RIGHT TO USE THE LANDS
FOR ANY OTHER PURPOSE, IT MUST FOLLOW THAT THE EASEMENT WAS WHOLLY
WITHOUT VALUE TO THE POWER COMPANY FOR ANY PURPOSE AT THE TIME THE
GOVERNMENT TOOK IT. 

WE BELIEVE THAT THE FIFTH AMENDMENT'S COMMAND THAT "PRIVATE PROPERTY
SHALL NOT BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION" SHOULD BE
LIBERALLY CONSTRUED IN FAVOR OF THE CONDEMNEE, BUT THAT DOES NOT MEAN
THAT THE GOVERNMENT SHOULD BE REQUIRED TO PAY SOMETHING FOR NOTHING. 

FOR THESE REASONS, WE THINK THE JUDGMENT SHOULD BE REVERSED WITH
DIRECTIONS TO ENTER JUDGMENT FOR THE GOVERNMENT. 
..END :















SALDANA V. UNITED STATES 365 U.S. 646 


NO. 176.  ARGUED MARCH 20, 1961 - DECIDED APRIL 3, 1961 - 274 F.2D 352,
AFFIRMED IN PART AND REVERSED IN PART. 


PETITIONER WAS CONVICTED ON FOUR COUNTS OF A FIVE-COUNT INDICTMENT
CHARGING OFFENSES UNDER THE NARCOTICS LAWS.  THE SOLICITOR GENERAL
SUGGESTED TO THIS COURT THAT THE COMBINATION OF CIRCUMSTANCES IN THE
CASE, BEGINNING WITH ONE JUDGE'S CLEARLY EXPRESSED INTENTION TO IMPOSE
A FIVE-YEAR SENTENCE AND ENDING WITH ANOTHER JUDGE'S IMPOSITION OF A
TWENTY-YEAR SENTENCE, WAS NOT CONSISTENT WITH THE ORDERLY
ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL COURTS.  HELD:  A DUE
REGARD FOR THE FAIR ADMINISTRATION OF JUSTICE REQUIRES THAT THE
CONVICTIONS UNDER COUNTS 3, 4 AND 5 BE SET ASIDE; BUT THE CONVICTION
UNDER COUNT 2, TO WHICH PETITIONER ORIGINALLY PLEADED GUILTY, IS
AFFIRMED.  PP. 646-647. 

SALDANA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE PETITIONER WAS CONVICTED ON FOUR COUNTS OF A FIVE-COUNT
INDICTMENT CHARGING OFFENSES UNDER THE NARCOTICS LAWS.  21 U.S.C. SEC.
174.  HE COMPLAINS OF A NUMBER OF ALLEGED TRIAL ERRORS.  IN ADDITION,
HE POINTS TO A SERIES OF EVENTS OCCURRING DURING THE COURSE OF THE
PROSECUTION WHICH, HE SAYS, OPERATED TO DEPRIVE HIM OF CONSTITUTIONALLY
GUARANTEED RIGHTS.  IT IS UNNECESSARY TO DETAIL HERE THE COURSE OF
THOSE PROCEEDINGS, SINCE WE ARE ADVISED THAT A CHANGE IN THE CALENDAR
SYSTEM OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
INSURES THAT WHAT OCCURRED IN THIS CASE WILL NOT OCCUR AGAIN. 

DURING ORAL ARGUMENT IN THIS COURT THE SOLICITOR GENERAL SUGGESTED
THAT THE COMBINATION OF CIRCUMSTANCES IN THIS CASE, BEGINNING WITH ONE
JUDGE'S CLEARLY EXPRESSED INTENTION TO IMPOSE A FIVE-YEAR SENTENCE, AND
ENDING WITH ANOTHER JUDGE'S IMPOSITION OF A TWENTY-YEAR SENTENCE UNDER
THE INDICTMENT, WAS NOT CONSISTENT WITH THAT REGULARITY AND FAIRNESS
WHICH SHOULD CHARACTERIZE THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE
FEDERAL COURTS.  IN THE LIGHT OF THE SOLICITOR GENERAL'S SUGGESTION,
AND UPON AN INDEPENDENT EXAMINATION OF THE RECORD, WE HAVE CONCLUDED
THAT A DUE REGARD FOR THE FAIR ADMINISTRATION OF JUSTICE REQUIRES THAT
THE CONVICTIONS UNDER COUNTS 3, 4, AND 5 OF THE INDICTMENT BE SET
ASIDE.  28 U.S.C.  SEC. 2106; SEE COMMUNIST PARTY V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, 351 U.S. 115, 124; MESAROSH V. UNITED STATES,
352 U.S. 1, 14; MARSHALL V. UNITED STATES, 360 U.S. 310.  CF.  PETITE
V. UNITED STATES, 361 U.S. 529.  THE CONVICTION UNDER COUNT 2, TO WHICH
THE PETITIONER ORIGINALLY PLEADED GUILTY, IS AFFIRMED. 

BECAUSE OF THIS DISPOSITION OF THE CASE, WE DO NOT REACH FOR
CONSIDERATION THE ALLEGED TRIAL ERRORS WITH RESPECT TO LIMITATION OF
CROSS-EXAMINATION, SUFFICIENCY OF THE EVIDENCE OF A "SALE" UNDER COUNT
5, AND INSTRUCTIONS TO THE JURY AS TO ENTRAPMENT.  SO ORDERED. 
..END :



















VILLAGE OF RIDGEFIELD PARK V. BERGEN COUNTY BOARD OF TAXATION 365 U.S.
648 


NO. 674.  DECIDED APRIL 3, 1961.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  31 N.J. 420, 157 A.2D
829; 33 N.J. 262, 163 A.2D 144. 


VILLAGE OF RIDGEFIELD PARK ET AL. V. BERGEN COUNTY BOARD OF TAXATION ET
AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














UTAH CITIZENS RATE ASSOCIATION V. UNITED STATES 365 U.S. 649 


NO. 712.  DECIDED APRIL 3, 1961 - 192 F. SUPP. 12, AFFIRMED. 


UTAH CITIZENS RATE ASSOCIATION ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















BOYDEN V. CALIFORNIA 365 U.S. 650 


NO. 344, MISC.  DECIDED APRIL 3, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 181 CAL. APP. 2D 48, 4 CAL. RPTR.  869. 


BOYDEN V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















FERGUSON V. GEORGIA 365 U.S. 570 


NO. 44.  ARGUED NOVEMBER 14-15, 1960.  - DECIDED MARCH 27, 1961.  - 215
GA. 117, 109 S.E.2D 44, REVERSED. 


THE GEORGIA CODE, SEC. 38-416, MAKES A PERSON CHARGED WITH A CRIMINAL
OFFENSE INCOMPETENT TO TESTIFY UNDER OATH IN HIS OWN BEHALF AT HIS
TRIAL; BUT SEC. 38-415 GIVES HIM THE RIGHT TO MAKE AN UNSWORN STATEMENT
TO THE JURY WITHOUT SUBJECTING HIMSELF TO CROSS-EXAMINATION.  AT THE
TRIAL IN A STATE COURT IN WHICH APPELLANT WAS CONVICTED OF MURDER, HIS
COUNSEL WAS DENIED THE RIGHT TO ASK HIM ANY QUESTIONS WHEN HE TOOK THE
STAND TO MAKE HIS UNSWORN STATEMENT.  HELD:  THIS APPLICATION OF SEC.
38-415 DENIED APPELLANT THE EFFECTIVE ASSISTANCE OF HIS COUNSEL AT A
CRUCIAL POINT IN HIS TRIAL, AND IT VIOLATED THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  PP. 570-596. 

FERGUSON V. GEORGIA. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE STATE OF GEORGIA IS THE ONLY STATE - INDEED, APPARENTLY THE ONLY
JURISDICTION OF THE COMMON-LAW WORLD - TO RETAIN THE COMMON-LAW RULE
THAT A PERSON CHARGED WITH A CRIMINAL OFFENSE IS INCOMPETENT TO TESTIFY
UNDER OATH IN HIS OWN BEHALF AT HIS TRIAL.  GEORGIA IN 1866 ABOLISHED
BY STATUTE THE COMMON-LAW RULES OF INCOMPETENCY FOR MOST OTHER
PERSONS.  HOWEVER, THE STATUTE, NOW GEORGIA CODE SEC. 38-416, EXPRESSLY
RETAINED THE INCOMPETENCY RULE AS TO PERSONS "CHARGED IN ANY CRIMINAL
PROCEEDING WITH THE COMMISSION OF ANY INDICTABLE OFFENSE OR ANY OFFENSE
PUNISHABLE ON SUMMARY CONVICTION  ...  ."  TWO YEARS LATER, IN 1868,
GEORGIA ALLOWED THE CRIMINAL DEFENDANT TO MAKE AN UNSWORN STATEMENT. 
THE STATUTE ENACTED FOR THAT PURPOSE, AS AMENDED, IS NOW GEORGIA CODE
SEC. 38-415, AND PROVIDES:  "IN ALL CRIMINAL TRIALS, THE PRISONER SHALL
HAVE THE RIGHT TO MAKE THE COURT AND JURY SUCH STATEMENT IN THE CASE AS
HE MAY DEEM PROPER IN HIS DEFENSE.  IT SHALL NOT BE UNDER OATH, AND
SHALL HAVE SUCH FORCE ONLY AS THE JURY MAY THINK RIGHT TO GIVE IT.
THEY MAY BELIEVE IT IN PREFERENCE TO THE SWORN TESTIMONY IN THE CASE. 
THE PRISONER SHALL NOT BE COMPELLED TO ANSWER ANY QUESTIONS ON CROSS
EXAMINATION, SHOULD HE THINK PROPER TO DECLINE TO ANSWER." 

IN THIS CASE A JURY IN THE SUPERIOR COURT, DOUGLAS COUNTY, GEORGIA,
CONVICTED THE APPELLANT OF MURDER, AND HE IS UNDER SENTENCE OF DEATH. 
AFTER THE STATE RESTED ITS CASE AT THE TRIAL, THE APPELLANT'S COUNSEL
CALLED HIM TO THE STAND, BUT THE TRIAL JUDGE SUSTAINED THE STATE'S
OBJECTION TO COUNSEL'S ATTEMPT TO QUESTION HIM.  TO THE ARGUMENT THAT
TO DENY COUNSEL THE "RIGHT TO ASK THE DEFENDANT ANY QUESTIONS ON THE
STAND  ...  VIOLATES  ...  AMENDMENT VI  ...  AND THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES  ...  BECAUSE IT
DEPRIVES THE DEFENDANT OF THE BENEFIT OF HIS COUNSEL ASKING HIM
QUESTIONS AT THE MOST IMPORTANT PERIOD OF THE TRIAL  ...  ," THE TRIAL
JUDGE ANSWERED THAT UNDER SEC. 38-415, "  ...  YOU DO NOT HAVE THE
RIGHT TO DO ANYTHING MORE THAN INSTRUCT YOUR CLIENT AS TO HIS RIGHTS,
AND ...  YOU HAVE NO RIGHT TO QUESTION HIM ON DIRECT EXAMINATION."  IN
AFFIRMING THE CONVICTION AND SUSTAINING THIS RULING, THE SUPREME COURT
OF GEORGIA SAID: 

"THE CONSTITUTIONAL PROVISIONS GRANTING TO PERSONS CHARGED WITH CRIME
THE BENEFIT AND ASSISTANCE OF COUNSEL CONFER ONLY THE RIGHT TO HAVE
COUNSEL PERFORM THOSE DUTIES AND TAKE SUCH ACTIONS AS ARE PERMITTED BY
THE LAW; AND TO REQUIRE COUNSEL TO CONFORM TO THE RULES OF PRACTICE AND
PROCEDURE, IS NOT A DENIAL OF THE BENEFIT AND ASSISTANCE OF COUNSEL. 
IT HAS BEEN REPEATEDLY HELD BY THIS COURT THAT COUNSEL FOR THE ACCUSED
CANNOT, AS A MATTER OF RIGHT, ASK THE ACCUSED QUESTIONS OR MAKE
SUGGESTIONS TO HIM WHEN HE IS MAKING HIS STATEMENT TO THE COURT AND
JURY."  215 GA. 117, 119, 109 S.E.2D 44, 46-47. 

ON THE APPEAL BROUGHT HERE UNDER 28 U.S.C. SEC. 1257(2), WE NOTED
PROBABLE JURISDICTION.  362 U.S. 901. 

THE ONLY QUESTION WHICH THE APPELLANT PROPERLY BRINGS BEFORE US IS
WHETHER THIS APPLICATION BY THE GEORGIA COURTS OF SEC. 38-415 DENIED
THE APPELLANT "THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE
PROCEEDINGS AGAINST HIM," POWELL V. ALABAMA, 287 U.S. 45, 69, WITHIN
THE REQUIREMENTS OF DUE PROCESS IN THAT REGARD AS IMPOSED UPON THE
STATES BY THE FOURTEENTH AMENDMENT.  SEE ALSO CHANDLER V. FRETAG, 348
U.S. 3. 

APPELLANT RAISES NO QUESTION AS TO THE CONSTITUTIONAL VALIDITY OF
SEC. 38-416, THE INCOMPETENCY STATUTE.  (FN1)  HOWEVER, DECISION OF THE
QUESTION WHICH IS RAISED UNDER SEC. 38-415 NECESSARILY INVOLVES
CONSIDERATION OF BOTH STATUTES.  HISTORICALLY THESE PROVISIONS HAVE
BEEN INTERTWINED.  FOR SEC. 38-416 IS A STATUTORY DECLARATION OF THE
COMMON-LAW RULE DISQUALIFYING CRIMINAL DEFENDANTS FROM TESTIFYING, AND
SEC. 38-415, ALSO WITH ITS ROOTS IN THE COMMON LAW, WAS AN ATTEMPT TO
MITIGATE THE RIGORS OF THAT INCOMPETENCY. 

THE DISQUALIFICATION OF PARTIES AS WITNESSES CHARACTERIZED THE COMMON
LAW FOR CENTURIES.  WIGMORE TRACES ITS REMOTE ORIGINS TO THE CONTEST
FOR JUDICIAL HEGEMONY BETWEEN THE DEVELOPING JURY TRIAL AND THE OLDER
MODES OF TRIAL, NOTABLY COMPURGATION AND WAGER OF LAW.  SEE 2 WIGMORE,
EVIDENCE, PP. 674-683.  UNDER THOSE OLD FORMS, THE OATH ITSELF WAS A
MEANS OF DECISION.  SEE THAYER, PRELIMINARY TREATISE ON EVIDENCE, PP.
24-34.  JURY TRIAL REPLACED DECISION BY OATH WITH DECISION OF THE
JURORS BASED ON THE EVIDENCE OF WITNESSES; WITH THIS CHANGE "THE PARTY
WAS NATURALLY DEEMED INCAPABLE OF BEING SUCH A WITNESS."  2 WIGMORE, P.
682.  INCOMPETENCY OF THE PARTIES IN CIVIL CASES SEEMS TO HAVE BEEN
ESTABLISHED BY THE END OF THE SIXTEENTH CENTURY.  SEE 9 HOLDSWORTH,
HISTORY OF ENGLISH LAW, P. 194.  IN TIME THE PRINCIPAL RATIONALE OF THE
RULE BECAME THE POSSIBLE UNTRUSTWORTHINESS OF THE PARTY'S TESTIMONY;
FOR THE SAME REASON DISQUALIFICATION WAS APPLIED IN THE SEVENTEENTH
CENTURY TO INTERESTED NONPARTY WITNESSES.  (FN2) 

ITS FIRM ESTABLISHMENT FOR CRIMINAL DEFENDANTS SEEMS TO HAVE COME
SOMEWHAT LATER.  IN THE SIXTEENTH CENTURY IT WAS NECESSARY FOR AN
ACCUSED TO CONDUCT HIS OWN DEFENSE, SINCE HE WAS NEITHER ALLOWED TO
CALL WITNESSES IN HIS BEHALF NOR PERMITTED THE ASSISTANCE OF COUNSEL. 
1 STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND, P. 350.  THE
CRIMINAL TRIAL OF THIS PERIOD HAS BEEN DESCRIBED AS "A LONG ARGUMENT
BETWEEN THE PRISONER AND THE COUNSEL FOR THE CROWN, IN WHICH THEY
QUESTIONED EACH OTHER AND GRAPPLED WITH EACH OTHER'S ARGUMENTS WITH THE
UTMOST EAGERNESS AND CLOSENESS OF REASONING."  STEPHEN, SUPRA, P. 326. 
IN THE PROCESS THE DEFENDANT COULD OFFER BY WAY OF EXPLANATION MATERIAL
THAT WOULD LATER BE CHARACTERIZED AS TESTIMONY.  2 WIGMORE, P. 684.  IN
THE SEVENTEENTH CENTURY, HOWEVER, HE WAS ALLOWED TO CALL WITNESSES IN
HIS BEHALF; THE RIGHT TO HAVE THEM SWORN WAS ACCORDED BY STATUTE FOR
TREASON IN 1695 AND FOR ALL FELONY IN 1701.  7 WILL.  III, C. 3; 1
ANNE, ST. 2, C. 9.  SEE THAYER, SUPRA, PP. 157-161, AND N. 4; 2
WIGMORE, PP. 685-686.  A DISTINCTION WAS DRAWN BETWEEN THE ACCUSED AND
HIS WITNESSES - THEY GAVE EVIDENCE BUT HE DID NOT.  SEE 2 WIGMORE, PP.
684-685, AND N. 42; 9 HOLDSWORTH, SUPRA, PP. 195-196.  THE GENERAL
ACCEPTANCE OF THE INTEREST RATIONALE AS A BASIS FOR DISQUALIFICATION
REINFORCED THIS DISTINCTION, SINCE THE CRIMINAL DEFENDANT WAS, OF
COURSE, PAR EXCELLENCE AN INTERESTED WITNESS.  "THE OLD COMMON LAW
SHUDDERED AT THE IDEA OF ANY PERSON TESTIFYING WHO HAD THE LEAST
INTEREST."  STATE V. BARROWS, 76 ME. 401, 409.  SEE BENSON V. UNITED
STATES, 146 U.S. 325, 336-337. 

DISQUALIFICATION FOR INTEREST WAS THUS EXTENSIVE IN THE COMMON LAW
WHEN THIS NATION WAS FORMED.  3 BL. COMM. 369.  (FN3)  HERE, AS IN
ENGLAND, CRIMINAL DEFENDANTS WERE DEEMED IMCOMPETENT AS WITNESSES.  IN
REX V. LUKENS, 1 DALL.  5, 6, DECIDED IN 1762, A PENNSYLVANIA COURT
REFUSED TO SWEAR A DEFENDANT AS A WITNESS, HOLDING THAT THE ISSUE THERE
IN QUESTION "MUST BE PROVED BY INDIFFERENT WITNESSES."  GEORGIA BY
STATUTE ADOPTED THE COMMON LAW OF ENGLAND IN 1784, AND "  ...  THE
RULES OF EVIDENCE BELONGING TO IT  ...  WERE IN FORCE THERE  ...  ." 
DOE V. WINN, 5 PET. 233, 241.  GEORGIA THEREFORE FOLLOWED THE
INCOMPETENCY RULE FOR CRIMINAL DEFENDANTS LONG BEFORE IT WAS GIVEN
STATUTORY FORM BY THE ACT OF 1866.  SEE JONES V. STATE, 1 GA. 610;
ROBERTS V. STATE, 189 GA. 36, 40-41, 5 S.E.2D 340, 343.  (FN4) 

BROADSIDE ASSAULTS UPON THE ENTIRE STRUCTURE OF DISQUALIFICATIONS,
PARTICULARLY THE DISQUALIFICATION FOR INTEREST, WERE LAUNCHED EARLY IN
THE NINETEENTH CENTURY IN BOTH ENGLAND AND AMERICA.  BENTHAM LED THE
MOVEMENT FOR REFORM IN ENGLAND, CONTENDING ALWAYS FOR RULES THAT WOULD
NOT EXCLUDE BUT WOULD LET IN THE TRUTH.  SEE RATIONALE OF JUDICIAL
EVIDENCE, BK. IX, PT. III, C. III (BOWRING ED.), PP. 393-406.  THE
BASIC GROUND OF THE ATTACK WAS, AS MACAULAY SAID, THAT "ALL EVIDENCE
SHOULD BE TAKEN AT WHAT IT MAY BE WORTH, THAT NO CONSIDERATION WHICH
HAS A TENDENCY TO PRODUCE CONVICTION IN A RATIONAL MIND SHOULD BE
EXCLUDED FROM THE CONSIDERATION OF THE TRIBUNALS."  LORD MACAULAY'S
LEGISLATIVE MINUTES, 1835, PP. 127-128.  THE QUALIFICATION IN CIVIL
CASES OF NONPARTY WITNESSES DESPITE INTEREST CAME FIRST.  SEE LORD
DENMAN'S ACT OF 1843, 6 & 7 VICT., C. 85.  THE FIRST GENERAL EXCEPTION
IN ENGLAND FOR PARTY WITNESSES IN CIVIL CASES WAS THE COUNTY COURTS ACT
OF 1846, 9 & 10 VICT., C. 95, ALTHOUGH THERE HAD BEEN EARLIER GRANTS OF
CAPACITY IN CERTAIN OTHER COURTS.  BEST, EVIDENCE (LELY ED. 1893), PP.
158-159.  LORD BROUGHAM'S ACT OF 1851, 14 & 15 VICT., C. 99, VIRTUALLY
ABOLISHED THE INCOMPETENCY OF PARTIES IN CIVIL CASES.  (FN5) 

THE QUALIFICATION OF CRIMINAL DEFENDANTS TO GIVE SWORN EVIDENCE IF
THEY WISHED CAME LAST.  THE FIRST STATUTE WAS APPARENTLY THAT ENACTED
BY MAINE IN 1859 MAKING DEFENDANTS COMPETENT WITNESSES IN PROSECUTIONS
FOR A FEW CRIMES.  MAINE ACTS 1859, C. 104.  THIS WAS FOLLOWED IN MAINE
IN 1864 BY THE ENACTMENT OF A GENERAL COMPETENCY STATUTE FOR CRIMINAL
DEFENDANTS, THE FIRST SUCH STATUTE IN THE ENGLISH-SPEAKING WORLD.  THE
REFORM WAS LARGELY THE WORK OF JOHN APPLETON OF THE SUPREME COURT OF
MAINE, AN AMERICAN DISCIPLE OF BENTHAM.  WITHIN 20 YEARS MOST OF THE
STATES NOW COMPRISING THE UNION HAD FOLLOWED MAINE'S LEAD.  A FEDERAL
STATUTE TO THE SAME EFFECT WAS ADOPTED IN 1878, 20 STAT. 30, 18 U.S.C.
SEC. 3481.  BEFORE THE END OF THE CENTURY EVERY STATE EXCEPT GEORGIA
HAD ABOLISHED THE DISQUALIFICATION.  (FN6) 

COMMON-LAW JURISDICTIONS OUTSIDE THE UNITED STATES ALSO LONG AGO
ABOLISHED THE DISQUALIFICATION.  THIS CHANGE CAME IN ENGLAND WITH THE
ENACTMENT IN 1898 OF THE CRIMINAL EVIDENCE ACT, 61 & 62 VICT., C. 36. 
(FN7)  VARIOUS STATES OF AUSTRALIA HAD ENACTED COMPETENCY STATUTES EVEN
BEFORE THE MOTHER COUNTRY, AS DID CANADA AND NEW ZEALAND.  COMPETENCY
WAS EXTENDED TO DEFENDANTS IN NORTHERN IRELAND IN 1923, IN THE REPUBLIC
OF IRELAND IN 1924, AND IN INDIA IN 1955.  (FN8) 

THE LAG IN THE GRANT OF COMPETENCY TO THE CRIMINALLY ACCUSED WAS
ATTRIBUTABLE IN LARGE MEASURE TO OPPOSITION FROM THOSE WHO BELIEVED
THAT SUCH A GRANT THREATENED EROSION OF THE PRIVILEGE AGAINST SELF
INCRIMINATION AND THE PRESUMPTION OF INNOCENCE.  "IF WE WERE TO HOLD
THAT A PRISONER OFFERING TO MAKE A STATEMENT MUST BE SWORN IN THE CAUSE
AS A WITNESS, IT WOULD BE DIFFICULT TO PROTECT HIS CONSTITUTIONAL
RIGHTS IN SPITE OF EVERY CAUTION, AND WOULD OFTEN LAY INNOCENT PARTIES
UNDER UNJUST SUSPICION WHERE THEY WERE HONESTLY SILENT, AND EMBARRASSED
AND OVERWHELMED BY THE SHAME OF A FALSE ACCUSATION  ...  .  IT WOULD
RESULT IN  ...  THE DEGRADATION OF OUR CRIMINAL JURISPRUDENCE BY
CONVERTING IT INTO AN INQUISITORY SYSTEM, FROM WHICH WE HAVE THUS FAR
BEEN HAPPILY DELIVERED."  PEOPLE V. THOMAS, 9 MICH. 314, 320-321
(CONCURRING OPINION).  SEE ALSO RULOFF V. PEOPLE, 45 N.Y. 213, 221-222;
PEOPLE V. TYLER, 36 CAL. 522, 528-530; STATE V. CAMERON, 40 VT. 555,
565-566; 1 AM. L. REV. 443; MAURY, VALIDITY OF STATUTES AUTHORIZING THE
ACCUSED TO TESTIFY, 14 AM. L. REV. 753.  (FN9) 

THE POSITION OF MANY WHO SUPPORTED COMPETENCY GAVE CREDENCE TO THESE
FEARS.  NEITHER BENTHAM NOR APPLETON WAS A FRIEND OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION.  (FN10)  WHILE APPLETON JUSTIFIED
COMPETENCY AS A NECESSARY PROTECTION FOR THE INNOCENT, HE ALSO BELIEVED
THAT INCOMPETENCY HAD SERVED THE GUILTY AS A SHIELD AND THUS DISSERVED
THE PUBLIC INTEREST.  COMPETENCY, HE THOUGHT, WOULD OPEN THE ACCUSED TO
CROSS-EXAMINATION AND PERMIT AN UNFAVORABLE INFERENCE IF HE DECLINED TO
TAKE THE STAND TO EXCULPATE HIMSELF.  (FN11) 

THIS CONTROVERSY LEFT ITS MARK ON THE LAWS OF MANY JURISDICTIONS
WHICH ENACTED COMPETENCY.  THE MAJORITY OF THE COMPETENCY STATUTES OF
THE STATES FORBID COMMENT BY THE PROSECUTION ON THE FAILURE OF AN
ACCUSED TO TESTIFY, AND PROVIDE THAT NO PRESUMPTION OF GUILT SHOULD
ARISE FROM HIS FAILURE TO TAKE THE STAND.  THE EARLY CASES PARTICULARLY
EMPHASIZED THE IMPORTANCE OF SUCH LIMITATIONS.  SEE, E.G., STAPLES V.
STATE, 89 TENN. 231, 14 S.W. 603; PRICE V. COMMONWEALTH, 77 VA. 393;
STATE V. TAYLOR, 57 W.VA. 228, 234-235, 50 S.E. 247, 249-250.  CF. 1
COOLEY, CONSTITUTIONAL LIMITATIONS (8TH ED.), PP. 658-661.  SEE
GENERALLY, REEDER, COMMENT UPON FAILURE OF ACCUSED TO TESTIFY, 31 MICH.
L. REV. 40.  FOR THE TREATMENT OF THE ACCUSED AS A WITNESS IN CANADA,
SEE 12 CAN.  BAR REV. 519, 13 CAN.  BAR.  REV. 336; IN AUSTRALIA, SEE 6
RES JUDICATAE 60; AND IN GREAT BRITAIN, SEE 2 TAYLOR, EVIDENCE (12TH
ED.)  864-865; 51 L.Q. REV. 443; 58 L.Q. REV. 369. 

EXPERIENCE UNDER THE AMERICAN COMPETENCY STATUTES WAS TO CHANGE THE
MINDS OF MANY WHO HAD OPPOSED THEM.  IT WAS SEEN THAT THE SHUTTING OUT
OF HIS SWORN EVIDENCE COULD BE POSITIVELY HURTFUL TO THE ACCUSED, AND
THAT INNOCENCE WAS IN FACT AIDED, NOT PREJUDICED, BY THE OPPORTUNITY OF
THE ACCUSED TO TESTIFY UNDER OATH.  AN AMERICAN COMMENTATOR DISCUSSING
THE MASSACHUSETTS STATUTE IN THE FIRST YEAR OF ITS OPERATION SAID:  "WE
HAVE ALWAYS BEEN OF OPINION, THAT THE LAW PERMITTING CRIMINALS TO
TESTIFY WOULD AID IN THE DETECTION OF GUILT; WE ARE NOW DISPOSED TO
THINK THAT IT WILL BE EQUALLY SERVICEABLE FOR THE PROTECTION OF
INNOCENCE."  1 AM. L. REV. 396.  SEE ALSO 14 AM. L. REG. 129.    THIS
EXPERIENCE MADE A SIGNIFICANT IMPRESSION IN ENGLAND AND HELPED TO
PERSUADE PARLIAMENT TO FOLLOW THE AMERICAN STATES AND OTHER COMMON-LAW
JURISDICTIONS IN GRANTING COMPETENCY TO CRIMINAL DEFENDANTS.  IN THE
DEBATES OF 1898, THE LORD CHANCELLOR QUOTED A DISTINGUISHED ENGLISH
JURIST, RUSSELL GURNEY:  "AFTER WHAT HE HAD SEEN THERE IN AMERICA, HE
COULD NOT ENTERTAIN A DOUBT ABOUT THE PROPRIETY OF ALLOWING ACCUSED
PERSONS TO BE HEARD AS WITNESSES ON THEIR OWN BEHALF."  54 HANSARD,
SUPRA, P. 1176.  ARTHUR BALFOUR REPORTED TO THE COMMONS THAT "PRECISELY
THE SAME DOUBTS AND DIFFICULTIES WHICH BESET THE LEGAL PROFESSION IN
THIS COUNTRY ON THE SUGGESTION OF THIS CHANGE WERE FELT IN THE UNITED
STATES, BUT THE RESULT OF THE EXPERIMENT, WHICH HAS BEEN EXTENDED
GRADUALLY FROM STATE TO STATE, IS THAT ALL FEARS HAVE PROVED ILLUSORY,
THAT THE LEGAL PROFESSION, DIVIDED AS THEY WERE BEFORE THE CHANGE, HAVE
NOW BECOME UNANIMOUS IN FAVOR OF IT, AND THAT NO SECTION OF THE
COMMUNITY, NOT EVEN THE PRISONERS AT THE BAR, DESIRE TO SEE ANY
ALTERATION MADE IN THE SYSTEM."  60 HANSARD, SUPRA, PP. 679-680. 
(FN12) 

A PARTICULARLY STRIKING CHANGE OF MIND WAS THAT OF THE NOTED
AUTHORITY ON THE CRIMINAL LAW, SIR JAMES STEPHEN.  WRITING IN 1863,
STEPHEN OPPOSED THE EXTENSION OF COMPETENCY TO DEFENDANTS.  HE ARGUED
THAT IT WAS INHERENT THAT A DEFENDANT COULD NOT BE A REAL WITNESS:  "IT
IS NOT IN HUMAN NATURE TO SPEAK THE TRUTH UNDER SUCH A PRESSURE AS
WOULD BE BROUGHT TO BEAR ON THE PRISONER, AND IT IS NOT A LIGHT THING
TO INSTITUTE A SYSTEM WHICH WOULD ALMOST ENFORCE PERJURY ON EVERY
OCCASION."  A GENERAL VIEW OF THE CRIMINAL LAW OF ENGLAND, P. 202. 
COMPETENCY WOULD PUT A DANGEROUS DISCRETION IN THE HANDS OF COUNSEL. 
"BY NOT CALLING THE PRISONER HE MIGHT EXPOSE HIMSELF TO THE IMPUTATION
OF A TACIT CONFESSION OF GUILT, BY CALLING HIM HE MIGHT EXPOSE AN
INNOCENT MAN TO A CROSS-EXAMINATION WHICH MIGHT MAKE HIM LOOK GUILTY." 
IBID.  ALLOWING QUESTIONS ABOUT PRIOR CONVICTIONS "WOULD INDIRECTLY PUT
THE MAN UPON HIS TRIAL FOR THE WHOLE OF HIS PAST LIFE."  ID., P. 203. 
TWENTY YEARS LATER, STEPHEN, AFTER MANY YEARS' EXPERIENCE ON THE
CRIMINAL BENCH, WAS TO SAY:  "I AM CONVINCED BY MUCH EXPERIENCE THAT
QUESTIONING, OR THE POWER OF GIVING EVIDENCE, IS A POSITIVE ASSISTANCE,
AND A HIGHLY IMPORTANT ONE, TO INNOCENT MEN, AND I DO NOT SEE WHY IN
THE CASE OF THE GUILTY THERE NEED BE ANY HARDSHIP ABOUT IT  ...  .  A
POOR AND ILL-ADVISED MAN  ...  IS ALWAYS LIABLE TO MISAPPREHEND THE
TRUE NATURE OF HIS DEFENCE, AND MIGHT IN MANY CASES BE SAVED FROM THE
CONSEQUENCES OF HIS OWN IGNORANCE OR MISFORTUNE BY BEING QUESTIONED AS
A WITNESS."  1 STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND, PP.
442, 444. 

IN SUM, DECADES AGO THE CONSIDERED CONSENSUS OF THE ENGLISH-SPEAKING
WORLD CAME TO BE THAT THERE WAS NO RATIONAL JUSTIFICATION FOR
PROHIBITING THE SWORN TESTIMONY OF THE ACCUSED, WHO ABOVE ALL OTHERS
MAY BE IN A POSITION TO MEET THE PROSECUTION'S CASE.  THE DEVELOPMENT
OF THE UNSWORN-STATEMENT PRACTICE WAS ITSELF A RECOGNITION OF THE
HARSHNESS OF THE INCOMPETENCY RULE.  WHILE ITS ORIGINS ANTEDATED THE
NINETEENTH CENTURY, (FN13) ITS STRONG SPONSORSHIP BY ENGLISH JUDGES OF
THAT CENTURY IS EXPLAINED BY THEIR DESIRE FOR A MITIGATION OF THE
RIGORS OF THAT RULE.  BARON ALDERSON SAID:  "I WOULD NEVER PREVENT A
PRISONER FROM MAKING A STATEMENT, THOUGH HE HAS COUNSEL.  HE MAY MAKE
ANY STATEMENT HE PLEASES BEFORE HIS COUNSEL ADDRESSES THE JURY, AND
THEN HIS COUNSEL MAY COMMENT UPON THAT STATEMENT AS A PART OF THE
CASE.  IF IT WERE OTHERWISE, THE MOST MONSTROUS INJUSTICE MIGHT RESULT
TO PRISONERS."  REG. V. DYER, 1 COX C.C. 113, 114.  SEE ALSO REG. V.
MALINGS, 8 CAR.  & P. 242; REG. V. WALKLING, 8 CAR.  & P. 243; REG. V.
MANZANO, 2 F.&F. 64; REG. V. WILLIAMS, 1 COX C.C. 363.  JUDGE STEPHEN'S
SPONSORSHIP OF THE PRACTICE WAS ESPECIALLY INFLUENTIAL.  SEE REG. V.
DOHERTY, 16 COX C.C. 306.  SEE ALSO REG. V. SHIMMIN, 15 COX C.C. 122;
60 HANSARD, SUPRA, P. 657.  IT BECAME SO WELL ESTABLISHED IN ENGLAND
THAT IT WAS EXPRESSLY PRESERVED IN THE CRIMINAL EVIDENCE ACT OF 1898. 
(FN14) 

THE PRACTICE APPARENTLY WAS FOLLOWED IN THIS COUNTRY AT COMMON LAW IN
A NUMBER OF STATES AND RECEIVED STATUTORY RECOGNITION IN SOME. 
MICHIGAN PASSED THE FIRST SUCH STATUTE IN 1861; UNLIKE THE GEORGIA
STATUTE OF 1868, IT PROVIDED THAT THE PRISONER SHOULD BE SUBJECT TO
CROSS-EXAMINATION ON HIS STATEMENT.  SEE PEOPLE V. THOMAS, 9 MICH.
314.  (FN15)  THE GEORGIA SUPREME COURT, IN ONE OF THE EARLY DECISIONS
CONSIDERING THE UNSWORN-STATEMENT STATUTE, STRESSED THE DEGREE OF
AMELIORATION EXPECTED TO BE REALIZED FROM THE PRACTICE, THEREBY
IMPLICITLY ACKNOWLEDGING THE DISADVANTAGES FOR THE DEFENDANT OF THE
INCOMPETENCY RULE.  THE COURT EMPHASIZED "THE BROAD AND LIBERAL PURPOSE
WHICH THE LEGISLATURE INTENDED TO ACCOMPLISH  ...  .  THIS RIGHT
GRANTED TO THE PRISONER IS A MODERN INNOVATION UPON THE CRIMINAL
JURISPRUDENCE OF THE COMMON LAW, ADVANCING TO A DEGREE HITHERTO UNKNOWN
THE RIGHT OF THE PRISONER TO GIVE HIS OWN NARRATIVE OF THE ACCUSATION
AGAINST HIM TO THE JURORS, WHO ARE PERMITTED TO BELIEVE IT IN
PREFERENCE TO THE SWORN TESTIMONY OF THE WITNESSES."  COXWELL V. STATE,
66 GA. 309, 316-317.  (FN16) 

BUT THE UNSWORN STATEMENT WAS RECOGNIZED ALMOST EVERYWHERE ELSE AS
SIMPLY A STOPGAP SOLUTION FOR THE SERIOUS DIFFICULTIES FOR THE ACCUSED
CREATED BY THE INCOMPETENCY RULE.  "THE SYSTEM OF ALLOWING A PRISONER
TO MAKE A STATEMENT HAD BEEN INTRODUCED AS A MERE MAKESHIFT, BY WAY OF
MITIGATING THE INTOLERABLE HARDSHIP WHICH OCCASIONALLY RESULTED FROM
THE PRISONER NOT BEING ABLE TO SPEAK ON HIS OWN BEHALF."  60 HANSARD,
SUPRA, P. 652.  "THE CUSTOM GREW UP IN ENGLAND OUT OF A SPIRIT OF
FAIRNESS TO GIVE AN ACCUSED, WHO WAS OTHERWISE DISQUALIFIED, AN
OPPORTUNITY TO TELL HIS STORY IN EXCULPATION."  STATE V. LOUVIERE, 169
LA. 109, 119, 124 SO. 188, 192.  THE ABOLITION OF THE INCOMPETENCY RULE
WAS THEREFORE HELD IN MANY JURISDICTIONS ALSO TO ABOLISH THE UNSWORN
STATEMENT PRACTICE.  "IN SUCH CASES THE UNSWORN STATEMENT OF AN ACCUSED
BECOMES SECONDARY TO HIS RIGHT OF TESTIFYING UNDER OATH AND CANNOT BE
RECEIVED."  STATE V. LOUVIERE, SUPRA, 169 LA., AT 119, 124 SO., AT
192.  "THE PRIVILEGE WAS GRANTED TO PRISONERS BECAUSE THEY WERE
DEBARRED FROM GIVING EVIDENCE ON OATH, AND FOR THAT REASON ALONE.  WHEN
THE LAW WAS CHANGED AND THE RIGHT ACCORDED TO THEM TO TELL THEIR STORY
ON OATH AS ANY OTHER WITNESS THE REASON FOR MAKING AN UNSWORN STATEMENT
WAS REMOVED."  REX V. KRAFCHENKO, (1914) 17 D.L.R. 244, 250 (MAN. 
K.B.).  (FN17) 

WHERE THE PRACTICE SURVIVES OUTSIDE AMERICA, LITTLE VALUE HAS BEEN
ATTACHED TO IT.  "IF THE ACCUSED DOES NOT ELECT TO CALL ANY EVIDENCE OR
TO GIVE EVIDENCE HIMSELF, HE VERY OFTEN MAKES AN UNSWORN STATEMENT FROM
THE DOCK.  IT IS WELL UNDERSTOOD AMONG LAWYERS THAT SUCH A STATEMENT
HAS BUT LITTLE EVIDENTIAL VALUE COMPARED WITH THE SWORN TESTIMONY UPON
WHICH THE ACCUSED CAN BE CROSS-EXAMINED  ...  ."  REX V. ZWARE, (1946)
S.A.L.R. 1, 7-8.  "HOW IS A JURY TO UNDERSTAND THAT IT IS TO TAKE THE
STATEMENT FOR WHAT IT IS WORTH, IF IT IS TOLD THAT IT CANNOT REGARD IT
AS EVIDENCE (I.E., PROOF) OF THE FACTS ALLEGED?"  68 L.Q.  REV. 463. 
THE UNSWORN STATEMENT "IS SELDOM OF MUCH VALUE, SINCE IT IS GENERALLY
INCOHERENT AND LEAVES OPEN MANY DOUBTS WHICH CANNOT BE RESOLVED BY
CROSS-EXAMINATION."  69 L.Q. REV.  22, 25.  "THE RIGHT OF A PRISONER TO
MAKE AN UNSWORN STATEMENT FROM THE DOCK STILL EXISTS  ...  BUT WITH
GREATLY DISCOUNTED VALUE."  1933 SCOTS LAW TIMES 29.  COMMENTATORS AND
JUDGES IN JURISDICTIONS WITH STATUTORY COMPETENCY HAVE SUGGESTED
ABROGATION OF THE UNSWORN-STATEMENT RIGHT.  SEE 94 IRISH LAW TIMES,
MARCH 5, 1960, P. 56; 68 L.Q. REV. 463; REX V. MCKENNA, (1951) Q.S.R.
299, 308. 

GEORGIA JUDGES, ON OCCASION, HAVE SIMILARLY DISPARAGED THE UNSWORN
STATEMENT.  "REALLY, IN PRACTICE IT IS WORTH, GENERALLY, BUT LITTLE IF
ANYTHING TO DEFENDANTS.  I HAVE NEVER KNOWN OR HEARD OF BUT ONE
INSTANCE WHERE IT WAS SUPPOSED THAT THE RIGHT HAD AVAILED ANYTHING.  IT
IS A BOON THAT BRINGS NOT MUCH RELIEF."  BIRD V. STATE, 50 GA. 585,
589.  "THE STATEMENT STANDS UPON A PECULIAR FOOTING.  IT IS OFTEN
INTRODUCED FOR THE MERE PURPOSE OF EXPLAINING EVIDENCE, OR AS AN
ATTEMPT AT MITIGATION; THE ACCUSED AND HIS COUNSEL THROW IT IN FOR WHAT
IT MAY HAPPEN TO BE WORTH AND DO NOT RELY UPON IT AS A SUBSTANTIVE
GROUND OF ACQUITTAL."  UNDERWOOD V. STATE, 88 GA. 47, 51, 13 S.E. 856,
858. 

THE UNSWORN STATEMENT HAS ANOMALOUS CHARACTERISTICS IN GEORGIA
PRACTICE.  IT IS NOT TREATED AS EVIDENCE OR LIKE THE TESTIMONY OF THE
ORDINARY SWORN WITNESS.  "THE STATEMENT MAY HAVE THE EFFECT OF
EXPLAINING, SUPPORTING, WEAKENING OR OVERCOMING THE EVIDENCE, BUT STILL
IT IS SOMETHING DIFFERENT FROM THE EVIDENCE, AND TO CONFOUND ONE WITH
THE OTHER, EITHER EXPLICITLY OR IMPLICITLY, WOULD BE CONFUSING AND
OFTEN MISLEADING  ...  .  THE JURY ARE TO DEAL WITH IT ON THE PLANE OF
STATEMENT AND NOT ON THE PLANE OF EVIDENCE, AND MAY DERIVE FROM IT SUCH
AID AS THEY CAN IN REACHING THE TRUTH.  THE LAW FIXES NO VALUE UPON IT;
IT IS A LEGAL BLANK.  THE JURY MAY STAMP IT WITH SUCH VALUE AS THEY
THINK BELONGS TO IT."  VAUGHN V. STATE, 88 GA. 731, 739, 16 S.E. 64,
66.  BECAUSE THE STATEMENT IS NOT EVIDENCE, EVEN THE CHARGE IN THE
STRICT TERMS OF THE STATUTE FAVORED BY THE GEORGIA SUPREME COURT, SEE
GARRETT V. STATE, 203 GA. 756, 765, 48 S.E.2D 377, 383; EMMETT V.
STATE, 195 GA. 517, 541, 25 S.E.2D 9, 23, CALLS ATTENTION TO THE FACT
THAT THE DEFENDANT IS NOT UNDER OATH.  MOREOVER, CHARGE AFTER CHARGE
GOING BEYOND THE TERMS OF THE STATUTE HAS BEEN SUSTAINED.  THUS IN
GARRETT V. STATE, SUPRA, THE TRIAL JUDGE INSTRUCTED THAT WHILE THE
DEFENDANTS WERE "ALLOWED" TO MAKE A STATEMENT, "THEY ARE NOT UNDER
OATH, NOT SUBJECT TO CROSS-EXAMINATION, AND YOU ARE AUTHORIZED TO GIVE
TO THEIR STATEMENT JUST SUCH WEIGHT AND CREDIT AS YOU THINK THEM
ENTITLED TO RECEIVE."  IN EMMETT V. STATE, 195 GA., AT 540, 25 S.E.2D,
AT 22, THE INSTRUCTION WAS THAT THE STATEMENT MIGHT BE BELIEVED IN
PREFERENCE TO THE SWORN TESTIMONY "IF YOU SEE PROPER TO GIVE IT THAT
WEIGHT AND THAT PLACE AND THAT IMPORTANCE IN THE TRIAL OF THIS CASE." 
IN DOUBERLY V. STATE, 184 GA. 573, 575, 192 S.E. 223, 225, THE JURY
WERE TOLD THEY MIGHT CREDIT THE STATEMENT "PROVIDED THEY BELIEVE IT TO
BE TRUE."  IN ALLEN V. STATE, 194 GA. 430, 436, 22 S.E.2D 65, 68, THE
CHARGE WAS:  "THERE IS NO PRESUMPTION ATTACHED TO THE DEFENDANT'S
STATEMENT.  NO PRESUMPTION THAT IT IS TRUE, NOR ANY PRESUMPTION THAT IT
IS NOT TRUE.  IN OTHER WORDS, IT GOES TO YOU WITHOUT A PRESUMPTION
EITHER FOR OR AGAINST HIM.  YOU HAVE THE RIGHT TO REJECT THE STATEMENT
ENTIRELY IF YOU DO NOT BELIEVE IT TO BE TRUE."  IN MANY CASES THE TRIAL
JUDGES HAVE BEEN SUSTAINED IN SPECIFICALLY POINTING OUT THAT DEFENDANTS
WERE NOT SUBJECT TO THE SANCTION FOR PERJURY WITH RESPECT TO THEIR
UNSWORN STATEMENTS.  "IF HE FAILED TO TELL YOU THE TRUTH, HE INCURRED
NO PENALTY BY REASON OF SUCH FAILURE."  DARDEN V. STATE, 171 GA. 160,
161, 155 S.E. 38, 40.  "THE DEFENDANT'S STATEMENT IS NOT UNDER OATH; NO
PENALTY IS PRESCRIBED FOR MAKING A FALSE STATEMENT  ...  ."  KLUG V.
STATE, 77 GA. 734, 736.  "SURELY THERE CAN BE NO WRONG IN CALLING THE
ATTENTION OF THE JURY TO CIRCUMSTANCES WHICH SHOULD IMPAIR THE FORCE OF
SUCH TESTIMONY OR WHICH SHOULD ENABLE THEM TO GIVE IT THE WEIGHT TO
WHICH IT IS ENTITLED."  POPPELL V. STATE, 71 GA. 276, 278.  SEE ALSO
GRIMES V. STATE, 204 GA. 854, 51 S.E.2D 797; THURMOND V. STATE, 198 GA.
410, 31 S.E.2D 804; WILLINGHAM V. STATE, 169 GA. 142, 149 S.E.  887;
MILLEN V. STATE, 175 GA. 283, 165 S.E. 226. 

BECAUSE IT IS NOT EVIDENCE, THE STATEMENT IS NOT A FOUNDATION
SUPPORTING THE OFFER OF CORROBORATIVE EVIDENCE.  CHAPMAN V. STATE, 155
GA. 393, 117 S.E. 321; MEDLIN V. STATE, 149 GA. 23, 98 S.E. 551.  "THE
STATUTE IS SILENT AS TO CORROBORATING THE MERE STATEMENT OF THE
ACCUSED, AND WHILE IT ALLOWS THE JURY TO BELIEVE IT IN PREFERENCE TO
THE SWORN TESTIMONY, IT SEEMS TO CONTEMPLATE THAT THE STATEMENT SHALL
COMPETE WITH SWORN TESTIMONY SINGLE-HANDED, AND NOT THAT IT SHALL HAVE
THE ADVANTAGE OF BEING REINFORCED BY FACTS WHICH DO NOT WEAKEN THE
SWORN EVIDENCE OTHERWISE THAN BY STRENGTHENING THE STATEMENT OPPOSED TO
IT."  VAUGHN V. STATE, 88 GA. 731, 736, 16 S.E. 64, 65.  SIMILARLY THE
STATEMENT IS NOT AN INDEPENDENT BASIS FOR AUTHENTICATING AND
INTRODUCING DOCUMENTS.  SIDES V. STATE, 213 GA. 482, 99 S.E.2D 884; SEE
ALSO REGISTER V. STATE, 10 GA. APP. 623, 74 S.E. 429.  IN THE ABSENCE
OF A SPECIFIC REQUEST, THE TRIAL JUDGE NEED NOT CHARGE THE LAW
APPLICABLE TO A DEFENSE PRESENTED BY THE STATEMENT BUT NOT SUPPORTED IN
SWORN TESTIMONY.  PRATER V. STATE, 160 GA. 138, 143, 127 S.E. 296, 298;
COFER V. STATE, 213 GA. 22, 96 S.E.2D 601; WILLINGHAM V. STATE, 169 GA.
142, 149 S.E. 887; HOLLEMAN V. STATE, 171 GA. 200, 154 S.E.  906; DARBY
V. STATE, 79 GA. 63, 3 S.E. 663.  IN CONTRAST THE TRIAL JUDGE MAY SUA
SPONTE INSTRUCT THE JURY TO TREAT THE ACCUSED'S EXPLANATION AS NOT
PRESENTING A DEFENSE IN LAW; "IN PROPER CASES THE JURY MAY BE GUARDED
BY A CHARGE FROM THE COURT AGAINST GIVING THE STATEMENT AN UNDUE EFFECT
IN FAVOR OF THE PRISONER  ...  ."  UNDERWOOD V. STATE, 88 GA. 47, 51,
13 S.E. 856, 858; FRY V. STATE, 81 GA. 645, 8 S.E. 308. 

IT IS SAID THAT AN ADVANTAGE OF SUBSTANCE WHICH THE DEFENDANT MAY
REALIZE FROM THE DISTINCTION IS THAT THE CONTENTS OF HIS STATEMENT ARE
NOT CIRCUMSCRIBED BY THE ORDINARY EXCLUSIONARY RULES OF EVIDENCE. 
PRATER V. STATE, 160 GA. 138, 142-147, 127 S.E. 296, 298-300;
RICHARDSON V. STATE, 3 GA. APP. 313, 59 S.E. 916; BIRDSONG V. STATE, 55
GA.  APP. 730, 191 S.E. 277; TIGET V. STATE, 110 GA. 244, 34 S.E.
1023.  HOWEVER, "THE PRISONER MUST HAVE SOME REGARD TO RELEVANCY AND
THE RULES OF EVIDENCE, FOR IT WAS NEVER INTENDED THAT IN GIVING HIS
NARRATIVE OF MATTERS PERTAINING TO HIS DEFENSE HE SHOULD ATTEMPT TO GET
BEFORE THE JURY WHOLLY IMMATERIAL FACTS OR ATTEMPT TO BOLSTER UP HIS
UNSWORN STATEMENT BY MAKING PROFERT OF DOCUMENTS, LETTERS, OR THE LIKE,
WHICH IF RELEVANT MIGHT BE INTRODUCED IN EVIDENCE ON PROOF OF THEIR
GENUINENESS."  NERO V. STATE, 126 GA. 554, 555, 55 S.E. 404.  SEE ALSO
SAUNDERS V. STATE, 172 GA. 770, 158 S.E. 791; MONTROSS V. STATE, 72 GA.
261; THEIS V. STATE, 45 GA. APP. 364, 164 S.E. 456; VINCENT V. STATE,
153 GA. 278, 293-294, 112 S.E. 120, 127.    THE SITUATIONS IN WHICH THE
GEORGIA CASES DO ASSIMILATE THE DEFENDANT TO AN ORDINARY WITNESS
EMPHASIZE THE ANOMALOUS NATURE OF THE UNSWORN STATEMENT.  IF HE ADMITS
RELEVANT FACTS IN HIS STATEMENT THE PROSECUTION IS RELIEVED OF THE
NECESSITY OF PROVING THEM BY EVIDENCE OF ITS OWN.  "THE PRISONER'S
ADMISSION IN OPEN COURT, MADE AS A PART OF HIS STATEMENT ON THE TRIAL,
MAY BE TREATED BY THE JURY AS DIRECT EVIDENCE AS TO THE FACTS." 
HARGROVES V. STATE, 179 GA. 722, 725, 177 S.E. 561, 563.  "IT IS WELL
SETTLED THAT THE STATEMENT OF A DEFENDANT TO A JURY IS A STATEMENT MADE
IN JUDICIO AND IS BINDING ON HIM.  WHERE THE DEFENDANT MAKES AN
ADMISSION OF A FACT IN HIS STATEMENT, SUCH ADMISSION IS DIRECT
EVIDENCE, AND THE STATE NEED NOT PROVE SUCH FACT BY ANY OTHER
EVIDENCE."  BARBOUR V. STATE, 66 GA.  APP. 498, 499, 18 S.E.2D 40, 41;
DUMAS V. STATE, 62 GA. 58.  AND ADMISSIONS IN A STATEMENT WILL OPEN THE
DOOR TO INTRODUCTION OF PROSECUTION EVIDENCE WHICH MIGHT OTHERWISE BE
INADMISSIBLE.  MCCOY V. STATE, 124 GA. 218, 52 S.E. 434.  ADMISSIONS IN
A STATEMENT AT ONE TRIAL ARE ADMISSIBLE AGAINST THE ACCUSED IN A LATER
TRIAL.  CADY V. STATE, 198 GA. 99, 110, 31 S.E.2D 38, 46; DUMAS V.
STATE, SUPRA.  THE PROSECUTION MAY COMMENT ON ANYTHING HE SAYS IN THE
STATEMENT.  FRANK V. STATE, 141 GA. 243, 277, 80 S.E. 1016.  ALTHOUGH
IT HAS BEEN HELD THAT THE MERE MAKING OF A STATEMENT DOES NOT PUT THE
DEFENDANT'S CHARACTER IN ISSUE, DOYLE V. STATE, 77 GA. 513, IT IS
SETTLED THAT "A DEFENDANT'S STATEMENT MAY BE CONTRADICTED BY TESTIMONY
AS TO THE FACTS IT NARRATES, AND HIS CHARACTER MAY BE AS EFFECTIVELY
PUT IN ISSUE BY HIS STATEMENT AS BY WITNESSES SWORN BY HIM FOR THIS
PURPOSE."  JACKSON V. STATE, 204 GA. 47, 56, 48 S.E.2D 864, 870; BARNES
V. STATE, 24 GA. APP. 372, 100 S.E. 788.  THE PROSECUTION MAY INTRODUCE
REBUTTAL EVIDENCE OF ALLEGED FALSE STATEMENTS.  JOHNSON V. STATE, 186
GA. 324, 197 S.E. 786; CAMP V. STATE, 179 GA. 292, 175 S.E. 646; MORRIS
V. STATE, 177 GA. 106, 169 S.E. 495. 

PERHAPS ANY ADVERSE CONSEQUENCES RESULTING FROM THESE ANOMALOUS
CHARACTERISTICS MIGHT BE IN SOME MEASURE OVERCOME IF THE DEFENDANT
COULD BE ASSURED OF THE OPPORTUNITY TO TRY TO EXCULPATE HIMSELF BY AN
EXPLANATION DELIVERED IN AN ORGANIZED, COMPLETE AND COHERENT WAY.  BUT
THE GEORGIA PRACTICE PUTS OBSTACLES IN THE WAY OF THIS.  HE MUST
DELIVER A FINISHED AND PERSUASIVE STATEMENT ON HIS FIRST ATTEMPT, FOR
HE WILL PROBABLY NOT BE PERMITTED TO SUPPLEMENT IT.  APPARENTLY THE
SITUATION MUST BE MOST UNUSUAL BEFORE THE EXERCISE BY THE TRIAL JUDGE
OF HIS DISCRETION TO REFUSE TO PERMIT THE DEFENDANT TO MAKE A
SUPPLEMENTAL STATEMENT WILL BE SET ASIDE.  SEE SHARP V. STATE, 111 GA.
176, 36 S.E. 633; JONES V. STATE, 12 GA. APP. 133, 76 S.E. 1070.  EVEN
AFTER THE STATE HAS INTRODUCED NEW EVIDENCE TO REBUT THE STATEMENT OR
TO SUPPLEMENT ITS OWN CASE, LEAVE TO MAKE A SUPPLEMENTAL STATEMENT HAS
BEEN DENIED.  FAIRFIELD V. STATE, 155 GA. 660, 118 S.E. 395; JOHNSON V.
STATE, 120 GA. 509, 48 S.E. 199; KNOX V. STATE, 112 GA. 373, 37 S.E.
416; BOSTON V. STATE, 94 GA. 590, 21 S.E. 603; GARMON V. STATE, 24 GA.
APP. 586, 101 S.E. 757.  IF THE SUBJECT MATTER OF THE SUPPLEMENTARY
STATEMENT ORIGINATES WITH COUNSEL AND NOT WITH THE DEFENDANT, IT HAS
BEEN HELD THAT THIS IS SUFFICIENT REASON TO REFUSE TO PERMIT THE MAKING
OF A SUPPLEMENTAL STATEMENT.  AUGUST V. STATE, 20 GA. APP. 168, 92 S.E.
956.  AND THE DEFENDANT WHO MAY HAVE A PERSUASIVE EXPLANATION TO GIVE
HAS NO EFFECTIVE WAY OF OVERCOMING THE POSSIBLE PREJUDICE FROM THE FACT
THAT HE MAY NOT BE SUBJECTED TO CROSS-EXAMINATION WITHOUT HIS CONSENT,
FOR HE HAS NO RIGHT TO REQUIRE CROSS-EXAMINATION.  BOYERS V. STATE, 198
GA. 838, 844-845, 33 S.E.2D 251, 255-256.  OF COURSE, EVEN IN
JURISDICTIONS WHICH HAVE GRANTED COMPETENCE TO DEFENDANTS, THE
PROSECUTION MAY DECLINE TO CROSS-EXAMINE.  BUT AT LEAST THE DEFENDANTS
IN THOSE JURISDICTIONS HAVE HAD THE ADVANTAGE OF HAVING THEIR
EXPLANATION ELICITED THROUGH DIRECT EXAMINATION BY COUNSEL.  IN
GEORGIA, HOWEVER, AS WAS HELD IN THIS CASE, COUNSEL MAY NOT EXAMINE HIS
CLIENT ON DIRECT EXAMINATION EXCEPT IN THE DISCRETION OF THE TRIAL
JUDGE.  THE REFUSAL TO ALLOW COUNSEL TO ASK QUESTIONS RARELY SEEMS TO
BE REVERSIBLE ERROR.  SEE, E.G., CORBIN V. STATE, 212 GA. 231, 91
S.E.2D 764; BROWN V. STATE, 58 GA. 212.  "THIS DISCRETION IS TO BE
SPARINGLY EXERCISED, BUT ITS EXERCISE WILL NOT BE CONTROLLED EXCEPT IN
CASES OF MANIFEST ABUSE."  WHITLEY V. STATE, 14 GA. APP. 577, 578, 81
S.E. 797.  INDEED, EVEN WHERE THE DEFENDANT HAS BEEN CROSS-EXAMINED ON
HIS STATEMENT, IT HAS BEEN HELD THAT DEFENSE COUNSEL HAS NO RIGHT TO
ASK A QUESTION, LINDSAY V. STATE, 138 GA. 818, 76 S.E. 369.  NOR MAY
COUNSEL CALL THE STATEMENT OF THE DEFENDANT TO A MATERIAL OMISSION IN
HIS STATEMENT WITHOUT PERMISSION OF THE TRIAL COURT.  ECHOLS V. STATE,
109 GA. 508, 34 S.E. 1038; CLARK V. STATE, 43 GA.  APP. 384, 159 S.E.
135. 

THIS SURVEY OF THE UNSWORN-STATEMENT PRACTICE IN GEORGIA SUPPORTS THE
CONCLUSION OF A GEORGIA COMMENTATOR:  "THE FACT IS THAT WHEN THE
AVERAGE DEFENDANT IS PLACED IN THE WITNESS CHAIR AND TOLD BY HIS
COUNSEL OR THE COURT THAT NOBODY CAN ASK HIM ANY QUESTIONS, AND THAT HE
MAY MAKE SUCH STATEMENT TO THE JURY AS HE SEES PROPER IN HIS OWN
DEFENSE, HE HAS BEEN SET ADRIFT IN AN UNCHARTED SEA WITH NOTHING TO
GUIDE HIM, WITH THE RESULT THAT HIS STATEMENT IN MOST CASES EITHER DOES
HIM NO GOOD OR IS POSITIVELY HURTFUL."  7 GA. B.J. 432, 433 (1945). 
(FN18) 

THE TENSIONS OF A TRIAL FOR AN ACCUSED WITH LIFE OR LIBERTY AT STAKE
MIGHT ALONE RENDER HIM UTTERLY UNFIT TO GIVE HIS EXPLANATION PROPERLY
AND COMPLETELY.  LEFT WITHOUT THE "GUIDING HAND OF COUNSEL," POWELL V.
ALABAMA, SUPRA, P. 69, HE MAY FAIL PROPERLY TO INTRODUCE, OR TO
INTRODUCE AT ALL, WHAT MAY BE A PERFECT DEFENSE.  "  ...  THOUGH HE BE
NOT GUILTY, HE FACES THE DANGER OF CONVICTION BECAUSE HE DOES NOT KNOW
HOW TO ESTABLISH HIS INNOCENCE."  IBID.  THE TREATMENT ACCORDED THE
UNSWORN STATEMENT IN THE GEORGIA COURTS INCREASES THIS PERIL FOR THE
ACCUSED.  THE WORDS OF COOLEY, J., IN HIS OPINION FOR THE MICHIGAN
SUPREME COURT IN ANNIS V. PEOPLE, 13 MICH. 511, 519-520, FIT HIS
PREDICAMENT. 

"BUT TO HOLD THAT THE MOMENT THE DEFENDANT IS PLACED UPON THE STAND
HE SHALL BE DEBARRED OF ALL ASSISTANCE FROM HIS COUNSEL, AND LEFT TO GO
THROUGH HIS STATEMENT AS HIS FEARS OR HIS EMBARRASSMENT MAY ENABLE HIM,
IN THE FACE OF THE CONSEQUENCES WHICH MAY FOLLOW FROM IMPERFECT OR
UNSATISFACTORY EXPLANATION, WOULD IN OUR OPINION BE TO MAKE, WHAT THE
STATUTE DESIGNED AS AN IMPORTANT PRIVILEGE TO THE ACCUSED, A TRAP INTO
WHICH NONE BUT THE MOST COOL AND SELF-POSSESSED COULD PLACE HIMSELF
WITH MUCH PROSPECT OF COMING OUT UNHARMED.  AN INNOCENT MAN, CHARGED
WITH A HEINOUS OFFENCE, AND AGAINST WHOM EVIDENCE OF GUILT HAS BEEN
GIVEN, IS MUCH MORE LIKELY TO BE OVERWHELMED BY HIS SITUATION, AND
EMBARRASSED, WHEN CALLED UPON FOR EXPLANATION, THAN THE OFFENDER, WHO
IS HARDENED IN GUILT; AND IF HE IS UNLEARNED, UNACCUSTOMED TO SPEAK IN
PUBLIC ASSEMBLIES, OR TO PUT TOGETHER HIS THOUGHTS IN CONSECUTIVE ORDER
ANY WHERE, IT WILL NOT BE SURPRISING IF HIS EXPLANATION IS INCOHERENT,
OR IF IT OVERLOOKS IMPORTANT CIRCUMSTANCES."  (FN19) 

WE THEREFORE HOLD THAT, IN EFFECTUATING THE PROVISIONS OF SEC. 38
415, GEORGIA, CONSISTENTLY WITH THE FOURTEENTH AMENDMENT, COULD NOT, IN
THE CONTEXT OF SEC. 38-416, DENY APPELLANT THE RIGHT TO HAVE HIS
COUNSEL QUESTION HIM TO ELICIT HIS STATEMENT.  WE DECIDE NO MORE THAN
THIS.  OUR DECISION DOES NOT TURN ON THE FACTS THAT THE APPELLANT WAS
TRIED FOR A CAPITAL OFFENSE AND WAS REPRESENTED BY EMPLOYED COUNSEL. 
THE COMMAND OF THE FOURTEENTH AMENDMENT ALSO APPLIES IN THE CASE OF AN
ACCUSED TRIED FOR A NONCAPITAL OFFENSE, OR REPRESENTED BY APPOINTED
COUNSEL.  FOR OTHERWISE, IN GEORGIA, "THE RIGHT TO BE HEARD BY COUNSEL
WOULD BE OF LITTLE WORTH."  CHANDLER V. FRETAG, 348 U.S. 3, 10. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  IT IS SUGGESTED IN THE CONCURRING OPINIONS THAT WE SHOULD
NEVERTHELESS ADJUDICATE THE VALIDITY OF SEC. 38-416.  APART FROM THE
INCONGRUITY OF PASSING UPON THE STATUTE THE APPELLANT EXPRESSLY
REFRAINED FROM ATTACKING, AND DISREGARDING HIS CHALLENGE TO THE STATUTE
HE DID CALL IN QUESTION, SUCH A COURSE WOULD BE DISRESPECTFUL OF THE
STATE'S PROCEDURES.  FOR IT APPEARS THAT THE GEORGIA SUPREME COURT
WOULD NOT HAVE ENTERTAINED AN ATTACK ON SEC.  38-416, SINCE THE
APPELLANT DID NOT OFFER HIMSELF TO BE SWORN AS A WITNESS.  SEE HOLLEY
V. LAWRENCE, 194 GA. 529, 22 S.E.2D 154; APPEAL HERE WAS DISMISSED ON
THE EXPRESS GROUND THAT "THE JUDGMENT OF THE COURT BELOW RESTS UPON A
NONFEDERAL GROUND ADEQUATE TO SUPPORT IT, NAMELY, THAT THE FAILURE TO
TENDER SUCH TESTIMONY AT THE TRIAL BARRED ANY LATER CLAIM OF THE
ALLEGED CONSTITUTIONAL RIGHT  ...  ."  317 U.S. 518. 

FN2  WIGMORE CONCLUDES THAT "THE PRINCIPLE OF PARTIES'
DISQUALIFICATION WOULD HAVE BEEN THE DIRECT ROOT OF THE
DISQUALIFICATION BY INTEREST IN GENERAL."  2 WIGMORE, P. 680.  "AFTER
COKE'S TIME AND PROBABLY UNDER THE INFLUENCE OF HIS UTTERANCES, THE
RULE FOR A PARTY WAS EXTENDED BY ANALOGY TO INTERESTED PERSONS IN
GENERAL."  PP. 682-683.  COKE LISTED A NUMBER OF DISQUALIFICATIONS:  IF
THE WITNESS "BECOMETH INFAMOUS,  ...  OR IF THE WITNESSE BE AN
INFIDELL, OR OF NON-SANE MEMORY, OR NOT OF DISCRETION, OR A PARTIE
INTERESTED, OR THE LIKE."  I COKE UPON LITTLETON, 6.B. 

FN3  THERE BLACKSTONE STATED THE THEN-SETTLED COMMON-LAW RULE TO BE
THAT "ALL WITNESSES, OF WHATEVER RELIGION OR COUNTRY, THAT HAVE THE USE
OF THEIR REASON, ARE TO BE RECEIVED AND EXAMINED, EXCEPT SUCH AS ARE
INFAMOUS, OR SUCH AS ARE INTERESTED IN THE EVENT OF THE CAUSE." 

FN4  BY THE ACT OF FEBRUARY 25, 1784, THE GEORGIA LEGISLATURE
PROVIDED THAT THE COMMON LAWS OF ENGLAND SHOULD REMAIN IN FORCE IN
GEORGIA, "SO FAR AS THEY ARE NOT CONTRARY TO THE CONSTITUTION, LAWS,
AND FORM OF GOVERNMENT NOW ESTABLISHED IN THIS STATE."  PRINCE'S DIGEST
(1837), P. 570.  SECTION 3772 OF THE CODE OF 1863, WHICH CODIFIED THE
STATUTORY AND DECISIONAL LAW OF THE STATE, STATED:  "WITNESSES ARE
INCOMPETENT  ...  WHO ARE INTERESTED IN THE EVENT OF THE SUIT." 

FN5  THE HISTORY OF THE TRANSITION IN ONE AMERICAN JURISDICTION IS
TRACED IN THAYER, A CHAPTER OF LEGAL HISTORY IN MASSACHUSETTS, 9 HARV.
L. REV. 1.  THE FIRST AMERICAN STATUTE REMOVING THE DISABILITY OF
INTERESTED NONPARTY WITNESSES SEEMS TO HAVE BEEN MICHIGAN'S IN 1846,
AND CONNECTICUT WAS FIRST TO ABOLISH THE GENERAL INCAPACITY OF PARTIES
IN 1849.  THE FIELD REFORMS IN NEW YORK STATE WERE INFLUENTIAL IN
LEADING OTHER AMERICAN JURISDICTIONS TO DISCARD THE INCAPACITY OF BOTH
WITNESSES AND PARTIES IN CIVIL CASES.  FOR AN ACCOUNT OF THE
DEVELOPMENT IN THE UNITED STATES, SEE 2 WIGMORE, PP. 686-695. 

THE PREAMBLE TO THE 1866 GEORGIA LEGISLATION EXPRESSED THE
LEGISLATIVE AIM IN EXTENDING COMPETENCY:  "WHEREAS, THE INQUIRY AFTER
TRUTH IN COURTS OF JUSTICE IS OFTEN OBSTRUCTED BY INCAPACITIES CREATED
BY THE PRESENT LAW, AND IT IS DESIRABLE THAT FULL INFORMATION AS TO THE
FACTS IN ISSUE, BOTH IN CIVIL AND CRIMINAL CASES, SHOULD BE LAID BEFORE
THE PERSONS WHO ARE TO DECIDE UPON THEM, AND THAT SUCH PERSONS SHOULD
EXERCISE THEIR JUDGMENT ON THE CREDIT OF THE WITNESSES ADDUCED FOR THE
TRUTH OF TESTIMONY."  THE FIRST SECTION OF THE ACT FORBADE THE
EXCLUSION OF WITNESSES, "BY REASON OF INCAPACITY FROM CRIME OR
INTEREST, OR FROM BEING A PARTY"; IT ALSO CONTAINED A "DEAD MAN'S
STATUTE" PROVISO.  THE REMAINING SECTIONS ENUMERATED THE EXCEPTIONS TO
THE EXTENSION OF COMPETENCY; THEY WERE IN EFFECT A STATUTORY
DECLARATION THAT CERTAIN OF THE COMMON-LAW INCAPACITIES SHOULD REMAIN
INTACT.  SEE ROBERTS V. STATE, 189 GA. 36, 5 S.E.2D 340; WILSON V.
STATE, 138 GA. 489, 492, 75 S.E. 619, 620; HOWARD V. STATE, 94 GA. 587,
20 S.E. 426.  THE SECOND SECTION CONTAINED THE ORIGINAL OF SEC. 38-416,
STATING:  "BUT NOTHING HEREIN CONTAINED SHALL RENDER ANY PERSON, WHO,
IN ANY CRIMINAL PROCEEDING, IS CHARGED WITH THE COMMISSION OF ANY
INDICTABLE OFFENCE, OR ANY OFFENCE PUNISHABLE ON SUMMARY CONVICTION,
COMPETENT OR COMPELLABLE, TO GIVE EVIDENCE FOR OR AGAINST HIMSELF, OR
HERSELF, OR SHALL RENDER ANY PERSON COMPELLABLE TO ANSWER ANY QUESTION
TENDING TO CRIMINATE HIMSELF OF HERSELF; OR SHALL IN ANY CRIMINAL
PROCEEDING RENDER ANY HUSBAND COMPETENT OR COMPELLABLE TO GIVE EVIDENCE
FOR OR AGAINST HIS WIFE, OR ANY WIFE COMPETENT OR COMPELLABLE TO GIVE
EVIDENCE FOR OR AGAINST HER HUSBAND; NOR SHALL ANY ATTORNEY BE
COMPELLABLE TO GIVE EVIDENCE FOR OR AGAINST HIS CLIENT."  GA. LAWS
1866, PP. 138-139.  SAVE FOR THE PROVISION AS TO THE ATTORNEY-CLIENT
PRIVILEGE, ADDED DURING THE DEBATE IN THE GEORGIA SENATE, SEE SENATE
JOURNAL, DEC. 5, 1866, P. 266, THE SECOND SECTION WAS VERBATIM THE SAME
AS SEC. III OF LORD BROUGHAM'S ACT. 

FN6 THE DATES ON WHICH THE GENERAL COMPETENCY STATUTES OF THE STATES
WERE ENACTED ARE:  ALABAMA, 1885; ALASKA, 1899; ARIZONA, 1871;
ARKANSAS, 1885; CALIFORNIA, 1866; COLORADO, 1872; CONNECTICUT, 1867;
DELAWARE, 1893; FLORIDA, 1895; HAWAII, 1876; IDAHO, 1875; ILLINOIS,
1874; INDIANA, 1873; IOWA, 1878; KANSAS, 1871; KENTUCKY, 1886;
LOUISIANA, 1886; MAINE, 1864; MARYLAND, 1876; MASSACHUSETTS, 1866;
MICHIGAN, 1881; MINNESOTA, 1868; MISSISSIPPI, 1882; MISSOURI, 1877;
MONTANA, 1872; NEBRASKA, 1873; NEVADA, 1867; NEW HAMPSHIRE, 1869; NEW
JERSEY, 1871; NEW MEXICO, 1880; NEW YORK, 1869; NORTH CAROLINA, 1881;
NORTH DAKOTA, 1879; OHIO, 1867; OKLAHOMA, 1890; OREGON, 1880;
PENNSYLVANIA, 1885; RHODE ISLAND, 1871; SOUTH CAROLINA, 1866; SOUTH
DAKOTA, 1879; TENNESSEE, 1887; TEXAS, 1889; UTAH, 1878; VERMONT, 1866;
VIRGINIA, 1886; WASHINGTON, 1871; WEST VIRGINIA, 1881; WISCONSIN, 1869;
WYOMING, 1877.    THE CURRENT CITATIONS TO THESE STATES ARE COLLECTED
IN THE APPENDIX TO THIS OPINION, POST, P. 596. 

FN7  PARLIAMENT HAD ENACTED A NUMBER OF SPECIALIZED COMPETENCY
STATUTES PRIOR TO 1898, THE FIRST IN 1872.  ABOUT 25 OTHERS HAD BEEN
PASSED BY THE TIME OF THE ENACTMENT OF THE GENERAL COMPETENCY STATUTE. 
SEE 56 HANSARD, PARLIAMENTARY DEBATES, 4TH SERIES, PP. 977-978.  THE
MOST IMPORTANT WAS THE CRIMINAL LAW AMENDMENT ACT OF 1885, 48 & 49
VICT., C. 69, WHICH MADE DEFENDANTS COMPETENT IN CERTAIN FELONY
PROSECUTIONS.  MOST OF THE OTHER STATUTES INVOLVED OFFENSES CREATED BY
REGULATORY LEGISLATION, WHICH WERE GENERALLY MISDEMEANORS.  SEE
GENERALLY BEST, SUPRA, PP. 571-572; 2 TAYLOR, EVIDENCE (12TH ED.), 862
863. 

FN8  CANADA AND NEW ZEALAND ADOPTED COMPETENCY STATUTES IN 1893. 
CANADA EVIDENCE ACT, SEE REV. STAT. CAN.  (1952), C. 307, SEC. 4(1);
NEW ZEALAND CRIMINAL CODE ACT, SEC. 398, SEE N.Z. REPR.  STAT.,
EVIDENCE ACT 1908, SEC. 5.  FOR AN ACCOUNT OF THE AUSTRALIAN
DEVELOPMENT, SEE 6 RES JUDICATAE 60.  THE STATUTE IN NORTHERN IRELAND
IS THE CRIMINAL EVIDENCE ACT (NORTHERN IRELAND); THE IRISH STATUTE IS
THE CRIMINAL JUSTICE (EVIDENCE) ACT. 

FOR THE INDIAN STATUTE, SEE CODE OF CRIMINAL PROCEDURE (AMENDMENT)
ACT, 1955, SEC. 61, IN 42 A.I. REP. (1955), INDIAN ACTS SECTION P. 91. 

FN9  OPPOSITION ON THIS SCORE WAS MARKED IN GREAT BRITAIN.  SAID ONE
MEMBER OF PARLIAMENT IN THE 1898 DEBATES:  "WHY IS THIS CHANGE TO BE
MADE IN THE LAW?  THE ENGLISH REVOLUTION IS AGAINST IT, THREE CENTURIES
OF EXPERIENCE IS AGAINST IT; AND THE ONLY ARGUMENT ADDUCED IN ITS FAVOR
IS THE SUGGESTION THAT AN HONEST MAN IS OCCASIONALLY CONVICTED OF A
CRIME OF WHICH HE IS INNOCENT.  ...  IT WOULD BE A DEGRADATION TO YOUR
GREAT JUDICIAL TRIBUNALS THAT, THOUGH A GUILTY MAN MAY NOT, AN INNOCENT
MAN MAY BE PLACED IN A POSITION OF EMBARRASSMENT AND PERIL - FOR THE
FIRST TIME UNDER THE BRITISH CONSTITUTION - FAR GREATER THAN ANY
ANCIENT LAW DESIGNED."  56 HANSARD, SUPRA, PP. 1022, 1024.  SAID
ANOTHER:  "FOR CENTURIES THE CRIMINAL LAW OF ENGLAND HAS BEEN
ADMINISTERED ON THE PRINCIPLE THAT IF YOU WANT TO HANG A MAN YOU MUST
HANG HIM ON SOMEBODY ELSE'S EVIDENCE.  THIS IS A BILL TO HANG A MAN ON
HIS OWN EVIDENCE  ...  ."  ID., AT 1030.  THERE HAD BEEN PARTICULAR
OPPOSITION ON THE PART OF IRISH MEMBERS, WHO CONTENDED THAT COMPETENCY
WOULD BECOME A MEANS OF OPPRESSION OF DEFENDANTS THERE; AS A RESULT
IRELAND WAS EXCLUDED FROM THE COVERAGE OF THE ACT.  SEE 60 HANSARD,
SUPRA, PP. 721-742.  OTHER MEMBERS WERE HOSTILE BECAUSE OF FEAR THAT
THE STATUTE WOULD HAVE AN ADVERSE EFFECT ON LABORERS WHO BECAME
CRIMINAL DEFENDANTS.  SEE 60 HANSARD, SUPRA, PP. 546-547, 574-578. 

FN10  SEE BENTHAM, RATIONALE OF JUDICIAL EVIDENCE, BK. IX, PT. IV, C.
III, PP. 445-468; APPLETON, THE RULES OF EVIDENCE, PP. 126-134. 

FN11  "THAT THEN THE ACCUSED, IF GUILTY, SHOULD OBJECT BEING PLACED
IN AN ATTITUDE SO DANGEROUS TO HIM, BECAUSE HE IS GUILTY, IS WHAT MIGHT
HAVE BEEN EXPECTED  ...  .  HIS OBJECTION TO TESTIFYING, IS AN
OBJECTION TO PUNISHMENT."  APPLETON, SUPRA, P. 131.  SEE ALSO STATE V.
CLEAVES, 59 ME. 298; CF. STATE V. BARTLETT, 55 ME. 200, 215-221.  FOR A
NOTE ON APPLETON'S ROLE IN THE MOVEMENT TO EXTEND COMPETENCY, SEE
THAYER, A CHAPTER OF LEGAL HISTORY IN MASSACHUSETTS, 9 HARV. L. REV. 1,
12.  SEE ALSO 14 AM. L. REG. 705. 

FN12  FOR OTHER COMMENTS ON THE IMPACT OF THE COMPETENCY STATUTES,
SEE ALVERSTONE, RECOLLECTIONS OF BAR AND BENCH, PP. 176-180; BIRON,
WITHOUT PREJUDICE; IMPRESSIONS OF LIFE AND LAW, P. 218; TRAIN, THE
PRISONER AT THE BAR, PP. 205-211; SHERMAN, SOME RECOLLECTIONS OF A LONG
LIFE, P. 234; 1933 SCOTS LAW TIMES 29; 2 FORTNIGHTLY L.J. 41. 

FN13  THE ORIGINS PROBABLY LIE IN THE NECESSITY FOR THE PRISONER TO
DEFEND HIMSELF DURING THE EARLY DEVELOPMENT OF ENGLISH CRIMINAL LAW. 
SEE P. 573, SUPRA.  EVEN AFTER THE DEFENDANT WAS ALLOWED TO HAVE
WITNESSES IN HIS BEHALF IN ENGLAND, HE STILL HAD NO RIGHT TO BE HEARD
BY COUNSEL, EXCEPT FOR TREASON, UNTIL THE ACT OF 1836, AND HIS
PARTICIPATION IN THE TRIAL REMAINED OF MAJOR IMPORTANCE; AS BEFORE, "A
PRISONER WAS OBLIGED, IN THE NATURE OF THE CASE, TO SPEAK FOR
HIMSELF."  REG. V. DOHERTY, 16 COX C.C. 306, 309.  ALTHOUGH THE
PRACTICE DEVELOPED IN THE EIGHTEENTH CENTURY OF ALLOWING COUNSEL TO
ADVISE THE ACCUSED DURING THE TRIAL AND TO CROSS-EXAMINE THE CROWN'S
WITNESSES, COUNSEL WAS STILL NOT PERMITTED TO ADDRESS THE JURY. 
STEPHEN, SUPRA, P. 424.  THE DEFENDANT CONTINUED TO DO THIS IN HIS OWN
BEHALF.  SEE 1 CHITTY, CRIMINAL LAW (5TH AM. ED.), P. 623; BENTHAM,
SUPRA, BK. IX, PT. V, C. III, P. 496.  SEE GENERALLY 26 AUSTRAL.  L.J.
166. 

FN14  CRIMINAL EVIDENCE ACT, SEC. 1(H).  SOME ENGLISH JUDGES HAD
SOUGHT TO CURTAIL THE PRACTICE AFTER DEFENDANTS WERE STATUTORILY
ACCORDED FULL BENEFIT OF COUNSEL BY THE ACT OF 1836, 6 & 7 WILL.  4, C.
114.  IN REG. V. BOUCHER, 8 CAR.  & P. 141, COLERIDGE, J., HELD THAT
BECAUSE DEFENSE COUNSEL HAD ADDRESSED THE JURY, THE ACCUSED COULD NOT
MAKE A STATEMENT.  SEE ALSO REG. V. BEARD, 8 CAR.  & P. 142; REG. V.
RIDER, 8 CAR.  & P. 539.  IN REG. V. TAYLOR, 1 F.&F. 535, BYLES, J.,
SAID THAT THE PRISONER OR HIS COUNSEL WOULD BE PERMITTED TO ADDRESS THE
JURY, BUT NOT BOTH.  AT LEAST A REMNANT OF THIS JUDICIAL HOSTILITY TO
THE STATEMENT LINGERED ALMOST UNTIL THE TIME OF THE GRANT OF
COMPETENCY.  SEE REG. V. MILLHOUSE, 15 COX C.C. 622. 

IN ADDITION TO ITS STATUTORY PRESERVATION IN GREAT BRITAIN, IT
SURVIVES IN OTHER COMMON-LAW JURISDICTIONS RECOGNIZING THE DEFENDANT'S
COMPETENCY.  E.G., NEW ZEALAND, SEE REX V. PERRY, 1920 N.Z.L.R. 21;
KERR V. REG., 1953 N.Z.L.R. 75, 28 N.Z.L.J. 305; AUSTRALIA, SEE REX V.
MCKENNA, 1951 Q.S.R. 299; IRELAND, SEE PEOPLE V. RIORDAN, 1948 I.R.
416, 94 IRISH LAW TIMES, FEB. 20, 1960, P. 43, FEB. 27, 1960, P. 49,
MARCH 5, 1960, P. 55; SOUTH AFRICA, SEE REX V. DE WET, 1933 S.A.L.R.
68, 64 SO. AFR.  L.J. 374. 

FN15  IN SOME STATES RECOGNIZING THE STATEMENT AT COMMON LAW, THE
DEFENDANT WAS CONFINED TO ARGUING THE LAW AND COMMENTING ON THE
EVIDENCE OF THE WITNESSES; HE COULD NOT STATE FACTS.  SEE FORD V.
STATE, 34 ARK. 649; WILSON V. STATE, 50 TENN. 232.  IN OTHER STATES,
THE PRISONER APPEARS TO HAVE BEEN ALLOWED MORE LATITUDE.  SEE PEOPLE V.
LOPEZ, 2 EDMONDS' SEL.  CASES 262 (N.Y.).  IN MASSACHUSETTS, THE RIGHT
OF A DEFENDANT WITH COUNSEL TO MAKE A STATEMENT SEEMS TO HAVE BEEN
RECOGNIZED ONLY IN CAPITAL CASES.  SEE THE HISTORICAL REVIEW IN
COMMONWEALTH V. STEWART, 255 MASS. 9, 151 N.E. 74; SEE ALSO
COMMONWEALTH V. MCCONNELL, 162 MASS. 499, 39 N.E. 107; COMMONWEALTH V.
BURROUGH, 162 MASS. 513, 39 N.E. 184; COMMONWEALTH V. DASCALAKIS, 246
MASS. 12, 32, 140 N.E. 470, 479.  FOR OTHER CONSIDERATIONS OF THE
COMMON-LAW STATEMENT, SEE STATE V. TAYLOR, 57 W.VA. 228, 50 S.E. 247;
HANOFF V. STATE, 37 OHIO ST. 178 (DISSENTING OPINION) 184-185;
O'LOUGHLIN V. PEOPLE, 90 COLO. 368, 384-385, 10 P.2D 543, 549; STATE V.
LOUVIERE, 169 LA. 109, 124 SO. 188; CF. REG. V. ROGERS, 1888 1 B.C.L.R.
PT. 2, P. 119.  ALABAMA GAVE THE UNSWORN STATEMENT STATUTORY SANCTION
IN 1882.  PREVIOUSLY THE RIGHT HAD BEEN CONFINED THERE TO AN ARGUMENT
ON THE EVIDENCE, STATE V. MCCALL, 4 ALA.  643, BUT THE STATUTE WAS
CONSTRUED TO ALLOW THE STATEMENT OF MATTERS IN THE NATURE OF EVIDENCE. 
SEE BLACKBURN V. STATE, 71 ALA. 319; CHAPPELL V. STATE, 71 ALA. 322. 
WYOMING GAVE A STATUTORY RIGHT OF UNSWORN STATEMENT IN 1869.  SEE
ANDERSON V. STATE, 27 WYO. 345, 196 P. 1047.  FLORIDA IN 1866 GAVE THE
ACCUSED IN THE DISCRETION OF THE COURT AN OPPORTUNITY TO MAKE A SWORN
STATEMENT ON WHICH HE COULD NOT BE CROSS-EXAMINED.  THIS WAS MADE AN
ABSOLUTE RIGHT IN 1870.  SEE MILLER V. FLORIDA, 15 FLA. 577.  ALL THESE
STATES, OF COURSE, SUBSEQUENTLY MADE DEFENDANTS FULLY COMPETENT. 

FN16  IT IS DOUBTFUL HOW FAR THE PRACTICE HAD BEEN FOLLOWED AT COMMON
LAW IN GEORGIA.  SEE ROBERTS V. STATE, 189 GA. 36, 41, 5 S.E.2D 340,
343.  INITIALLY THERE SEEMS TO HAVE BEEN CONSIDERABLE OPPOSITION TO
GIVING THE UNSWORN STATEMENT STATUTORY SANCTION.  THE BILL THAT BECAME
THE PREDECESSOR OF PRESENT SEC. 38-415 WAS ORIGINALLY TABLED IN THE
HOUSE AND THEN PASSED AFTER RECONSIDERATION, AND WAS ORIGINALLY
DEFEATED IN THE SENATE.  SEE HOUSE JOURNAL, AUG. 8, 10, 13, 1868, PP.
158, 160, 173; SENATE JOURNAL, OCT. 3, 1868, P. 492.  AS PASSED, IT
PROVIDED THAT IN CASES OF FELONY THE PRISONER SHOULD HAVE THE RIGHT TO
MAKE AN UNSWORN STATEMENT; HE WAS NOT SUBJECT TO CROSS-EXAMINATION ON
IT AND THE JURY WAS EMPOWERED TO GIVE IT SUCH FORCE AS THEY THOUGHT
RIGHT.  GA. LAWS 1868, P. 24.  IN 1874 THE RIGHT WAS EXTENDED TO ALL
CRIMINAL DEFENDANTS.  GA. LAWS 1874, PP. 22-23.  IN 1879 THE JURY WAS
EXPLICITLY EMPOWERED TO BELIEVE THE STATEMENT IN PREFERENCE TO THE
SWORN TESTIMONY, GA. LAWS 1878-1879, PP. 53-54, AND THE STATUTE TOOK
ITS PRESENT FORM. 

FN17  SEE ALSO CLARKE V. STATE, 78 ALA. 474; HARRIS V. STATE, 78 ALA.
482; HART V. STATE, 38 FLA. 39, 20 SO. 805; COPELAND V. STATE, 41 FLA.
320, 26 SO. 319; O'LOUGHLIN V. PEOPLE, 90 COLO. 368, 10 P.2D 543. 

IN WYOMING, THE DEFENDANT HAD THE OPTION TO MAKE AN UNSWORN STATEMENT
EVEN AFTER THE GRANT OF COMPETENCY, SINCE THE COMPETENCY STATUTE
EXPRESSLY PRESERVED THE STATEMENT.  IN 1925 THE RESERVATION OF THE
RIGHT OF STATEMENT WAS REMOVED.  SEE ANDERSON V. STATE, 27 WYO.  345,
196 P. 1047.  MASSACHUSETTS THUS APPEARS TO BE THE ONLY AMERICAN
JURISDICTION STILL EXPLICITLY ALLOWING A DEFENDANT IN SOME CASES TO
GIVE THEIR SWORN TESTIMONY OR AN UNSWORN STATEMENT.  SEE COMMONWEALTH
V. STEWART, 255 MASS. 9, 151 N.E. 74. 

FN18  FOR OTHER GEORGIA COMMENTS ON THE PRACTICE, SEE 17 GA. B.J.
120; 15 GA. B.J. 342; 14 GA. B.J. 362, 366; 3 MERCER L. REV. 335; CF. 5
GA. B.J., FEB. 1943, P. 47.  THE GEORGIA BAR ASSOCIATION HAS IN THE
PAST SUPPORTED A PROPOSAL IN THE LEGISLATURE TO MAKE DEFENDANTS
COMPETENT.  SEE, E.G., 1952 GA. BAR ASSN. REP. 31.  RECENT STUDY OF THE
PROBLEM BY THE ASSOCIATION'S COMMITTEE ON CRIMINAL LAW AND PROCEDURE
RESULTED IN A REPORT RECOMMENDING AGAINST CHANGE ON GROUNDS THAT IT
WOULD "AID THE PROSECUTION AND CONVICTION OF THE DEFENDANT AND WOULD BE
OF NO MATERIAL BENEFIT TO ANY DEFENDANT IN A CRIMINAL CASE.  THOSE WHO
ARE ON TRIAL FOR THEIR LIVES AND LIBERTY CANNOT POSSIBLY THINK AND
TESTIFY AS CLEARLY AS A DISINTERESTED WITNESS, AND OF COURSE, IT IS
AGREED THAT A SHREWD PROSECUTOR COULD CREATE, BY EXPERT CROSS
EXAMINATION, IN THE MINDS OF THE JURY, AN UNFAVORABLE IMPRESSION OF A
DEFENDANT."  1957 GA. BAR ASSN. REP. 182.  HOWEVER, SINCE THAT TIME THE
COMMITTEE HAS TWICE RECOMMENDED COMPETENCY FOR CRIMINAL DEFENDANTS AND
HAS PREPARED DRAFT LEGISLATION FOR THAT PURPOSE.  SEE 1960 GA. BAR
ASSN. REP. 109, 115, 116, 119. 

GEORGIA'S ADHERENCE TO THE RULE OF INCOMPETENCY OF CRIMINAL
DEFENDANTS CONTRASTS WITH THE UNDEVIATING TREND AWAY FROM EXCLUSION OF
EVIDENCE THAT HAS CHARACTERIZED THE DEVELOPMENT OF THE STATE'S LAW
SINCE THE NINETEENTH CENTURY.  THE CODE OF 1863 INDICATES THAT THE
LIMITATIONS ON AND EXCEPTIONS TO DISQUALIFICATIONS IN THE COMMON LAW
WERE NUMEROUS EVEN BEFORE THE ACT OF 1866.  SEE, E.G., SECS. 3772(5),
3779, 3780, 3781, 3782, 3783, 3785, 4563.  THE GEORGIA ARBITRATION ACT
OF 1856 HAD MADE THE PARTIES COMPETENT IN ARBITRATION PROCEEDINGS.  SEE
GOLDEN V. FOWLER, 26 GA. 451, 458.  JUDGE LUMPKIN DECLARED:  "AS JURORS
HAVE BECOME MORE CAPABLE OF EXERCISING THEIR FUNCTIONS INTELLIGENTLY,
THE JUDGES BOTH IN ENGLAND AND IN THIS COUNTRY, ARE STRUGGLING
CONSTANTLY TO OPEN THE DOOR WIDE AS POSSIBLE  ...  TO LET IN ALL FACTS
CALCULATED TO AFFECT THE MINDS OF THE JURY IN ARRIVING AT A CORRECT
CONCLUSION  ...  .  TRUTH, COMMON SENSE, AND ENLIGHTENED REASON, ALIKE
DEMAND THE ABOLITION OF ALL THOSE ARTIFICIAL RULES WHICH SHUT OUT ANY
FACT FROM THE JURY, HOWEVER REMOTELY RELEVANT, OR FROM WHATEVER SOURCE
DERIVED, WHICH WOULD ASSIST THEM IN COMING TO A SATISFACTORY VERDICT." 
JOHNSON V. STATE, 14 GA. 55, 61-62. 

A POLICY FAVORING THE RECEPTION OF EVIDENCE HAS CONSISTENTLY
CHARACTERIZED THE DECISIONS OF THE GEORGIA COURTS AND ACTS OF THE
LEGISLATURE SINCE THE 1866 ACT.  SEE, E.G., BLOUNT V. BEALL, 95 GA.
182, 22 S.E. 52; MYERS V. PHILLIPS, 197 GA. 536, 29 S.E.2D 700; MANLEY
V. COMBS, 197 GA. 768, 781-782, 30 S.E.2D 485, 493-494; SISK V. STATE,
182 GA. 448, 453, 185 S.E. 777, 781; BERRY V. BRUNSON, 166 GA. 523, 531
533, 143 S.E. 761, 765; POLK V. STATE, 18 GA. APP. 324, 89 S.E. 437;
WATKINS V. STATE, 19 GA. APP. 234, 91 S.E. 284.  THE LEGISLATURE HAS
REMOVED SOME OF THE EXCEPTIONS RETAINED IN THE 1866 ACT.  SEE GA. LAWS
1935, P. 120, ALLOWING PARTIES TO TESTIFY IN BREACH-OF-PROMISE
ACTIONS.  IN 1957 THE LEGISLATURE REMOVED THE IMCOMPETENCY OF A WIFE TO
TESTIFY FOR OR AGAINST HER HUSBAND.  GA.  LAWS 1957, P. 53, AMENDING
SEC. 38-1604.  GA. CODE SEC. 38-101 SUMS UP THIS POLICY:  "THE OBJECT
OF ALL LEGAL INVESTIGATION IS THE DISCOVERY OF TRUTH.  THE RULES OF
EVIDENCE ARE FRAMED WITH A VIEW TO THIS PROMINENT END, SEEKING ALWAYS
FOR PURE SOURCES AND THE HIGHEST EVIDENCE." 

MOREOVER, IN THE CASE OF DEFENDANTS JOINTLY TRIED, GEORGIA ALLOWS ONE
CODEFENDANT TO TESTIFY AS A SWORN WITNESS FOR THE OTHER, ALTHOUGH HIS
TESTIMONY MAY SERVE TO ACQUIT HIMSELF IF BELIEVED.  SEE, E.G., STATEN
V. STATE, 140 GA. 110, 78 S.E. 766; COFER V. STATE, 163 GA. 878, 137
S.E. 378.  IT MAY EVEN BE ERROR IN SUCH A SITUATION FOR THE COURT TO
TREAT SUCH TESTIMONY AS IF IT WERE AN UNSWORN STATEMENT AND TO FAIL TO
GIVE SUFFICIENT EMPHASIS IN THE CHARGE TO THE JURY AS TO ITS EFFECT AS
EVIDENCE.  STATEN V. STATE, SUPRA; BURNSED V. STATE, 14 GA. APP. 832,
82 S.E. 595; ROBERSON V. STATE, 14 GA. APP. 557, 81 S.E.  798; CF.
O'BERRY V. STATE, 153 GA. 880, 113 S.E. 203.  AND A DEFENDANT IS
ALLOWED TO GIVE SWORN TESTIMONY AS TO MATTERS IN HIS TRIAL NOT GOING TO
THE ISSUE OF HIS GUILT.  SEE THOMAS V. STATE, 81 GA. APP. 59, 58 S.E.2D
213.    FN19  THERE THE MICHIGAN SUPREME COURT REVERSED A CONVICTION
BECAUSE THE TRIAL JUDGE REFUSED TO LET COUNSEL REMIND THE DEFENDANT
THAT HE HAD OMITTED A MATERIAL FACT FROM HIS UNSWORN STATEMENT.  THE
QUOTED EXCERPT IMMEDIATELY FOLLOWS AN OBSERVATION THAT THE MICHIGAN
STATUTE PERMITTING AN UNSWORN STATEMENT EVIDENTLY DID NOT CONTEMPLATE
AN ORDINARY DIRECT EXAMINATION. 

                   APPENDIX TO OPINION OF THE COURT.    ALA. CODE,
1940, TIT. 15, SEC. 305. 

ALASKA COMP. LAWS ANN., 1949, SEC. 66-13-53. 

ARIZ. REV. STAT. ANN., 1956, SEC. 13-163. 

ARK. STAT., 1947, SEC. 43-2016. 

CAL. PEN.  CODE SEC. 1323.5.  SEE ALSO CAL. PEN.  CODE SEC. 1323;
CAL. CONST., ART. I, SEC. 13. 

COLO. REV. STAT. ANN., 1953, SEC. 39-7-15. 

CONN. GEN. STAT., 1958, SEC. 54-84. 

DEL. CODE ANN., 1953, TIT. 11, SEC. 3501. 

FLA. STAT., 1959, SEC. 918.09. 

HAWAII REV. LAWS, 1955, SEC. 222-15. 

IDAHO CODE ANN., 1948, SEC. 19-3003. 

ILL. REV. STAT., 1959, C. 38, SEC. 734. 

IND. ANN. STAT., 1956, SEC. 9-1603. 

IOWA CODE, 1958, SEC. 781.12.  SEE ALSO IOWA CODE SEC. 781.13. 

KAN. GEN. STAT. ANN., 1949, SEC. 62-1420. 

KY. REV. STAT., 1960, SEC. 455.090. 

LA. REV. STAT., 1950, SEC. 15.461.  SEE ALSO LA. REV. STAT. SEC.
15.462. 

ME. REV. STAT. ANN., 1954, C. 148, SEC. 22. 

MD. ANN. CODE, 1957, ART. 35, SEC. 4. 

MASS. GEN. LAWS ANN., 1959, C. 233, SEC. 20. 

MICH. COMP. LAWS, 1948, SEC. 617.64. 

MINN. STAT., 1957, SEC. 611.11. 

MISS. CODE ANN., 1942, SEC. 1691. 

MO. REV. STAT., 1959, SEC. 546.260.  SEE ALSO MO. REV. STAT. SEC.
546.270. 

MONT. REV. CODES ANN., 1947, SEC. 94-8803. 

NEB. REV. STAT., 1956, SEC. 29-2011. 

NEV. REV. STAT., 1957, SEC. 175.170.  SEE ALSO NEV. REV. STAT. SEC.
175.175. 

N.H. REV. STAT. ANN., 1955, SEC. 516.31.  SEE ALSO N.H. REV. STAT.
ANN. SEC. 516.32. 

N.J. REV. STAT., 1951, SEC. 2A:81-8. 

N.M. STAT. ANN., 1953, SEC. 41-12-19. 

N.Y. CODE CRIM. PROC. SEC. 393. 

N.C. GEN. STAT., 1953, SEC. 8-54. 

N.D. REV. CODE, 1943, SEC. 29-2111. 

OHIO REV. CODE ANN., 1953, SEC. 2945.43. 

OKLA. STAT., 1951, TIT. 22, SEC. 701. 

ORE. REV. STAT., 1953, SEC. 139.310. 

PA. STAT., 1930, TIT. 19, SEC. 681.  SEE ALSO PA. STAT., TIT. 19,
SEC. 631. 

R.I. GEN. LAWS ANN., 1956, SEC. 12-17-9. 

S.C. CODE, 1952, SEC. 26-405. 

S.D. CODE, 1939, SEC. 34.3633. 

TENN. CODE ANN., 1955, SEC. 40-2402.  SEE ALSO TENN. CODE ANN. SEC.
40-2403. 

TEX. CODE CRIM. PROC., 1948, ART. 710. 

UTAH CODE ANN., 1953, SEC. 77-44-5. 

VT. STAT. ANN., 1959, SEC. 13-6601. 

VA. CODE ANN., 1950, SEC. 19.1-264. 

WASH. REV. CODE, 1951, SEC. 10.52.040. 

W.VA. CODE ANN., 1955, SEC. 5731. 

WIS. STAT., 1959, SEC. 325.13. 

WYO. STAT., 1957, SEC. 7-244. 

MR. JUSTICE FRANKFURTER'S SEPARATE OPINION FOR REVERSING THE
CONVICTION, IN WHICH MR. JUSTICE CLARK JOINS. 

GEORGIA IN 1784 ADOPTED THE COMMON LAW OF ENGLAND, ACT OF FEBRUARY
25, 1784, PRINCE'S DIGEST 570 (1837).  THIS ADOPTION INCLUDED ITS RULES
OF COMPETENCY FOR WITNESSES, WHEREBY AN ACCUSED WAS PRECLUDED FROM
BEING A WITNESS IN HIS OWN BEHALF.  IT IS DOUBTFUL WHETHER AND TO WHAT
EXTENT THE COMMON-LAW PRIVILEGE OF AN ACCUSED, BARRED AS A WITNESS, TO
ADDRESS THE JURY PREVAILED IN GEORGIA, BUT IT IS A FAIR GUESS THAT THE
PRACTICE WAS FAR LESS THAN UNIFORM.  SEE ROBERTS V. STATE, 189 GA. 36,
41, 5 S.E.2D 340, 343.  WHILE THE COMMON-LAW RIGORS OF INCOMPETENCY
WERE ALLEVIATED BY AN ENACTMENT OF 1866 BECAUSE "THE INQUIRY AFTER
TRUTH IN COURTS OF JUSTICE IS OFTEN OBSTRUCTED BY INCAPACITIES CREATED
BY THE PRESENT LAW,"* GEORGIA RETAINED THE INCOMPETENCY OF AN ACCUSED
TO TESTIFY IN HIS OWN DEFENSE.  IN 1868, FOR THE FIRST TIME A STATUTORY
PROVISION GRANTED THE ACCUSED THE PRIVILEGE OF MAKING AN UNSWORN
STATEMENT TO THE JURY.  GA. LAWS 1868, P. 24.  THE SUM OF ALL THIS
LEGISLATIVE HISTORY IS THAT THE DEFENDANT IN A CRIMINAL PROSECUTION IN
GEORGIA WAS DISQUALIFIED AS A WITNESS, BUT WAS GIVEN OPPORTUNITY TO SAY
HIS SAY TO THE JURY.  THESE TWO ASPECTS OF THE LEGAL SITUATION IN WHICH
GEORGIA PLACED THE ACCUSED WERE MADE CONSECUTIVE SECTIONS OF THE PENAL
CODE IN 1895, GA. CODE, 1895, SECS. 1010, 1011, AND HAVE THUS REMAINED
THROUGH THEIR PRESENT FORM AS SECS. 38-415 AND 38-416. 

*GA. LAWS 1866, P. 138. 

(1)  IT WOULD SEEM TO BE IMPOSSIBLE, BECAUSE ESSENTIALLY MEANINGLESS
AS A MATTER OF REASON, TO CONSIDER THE CONSTITUTIONAL VALIDITY OF SEC.
38-415 WITHOUT IMPLIEDLY INCORPORATING THE GEORGIA LAW WHICH RENDERS
THE DEFENDANT INCOMPETENT TO PRESENT TESTIMONY IN HIS OWN BEHALF UNDER
OATH.  THIS IS NOT A RIGHT-TO-COUNSEL CASE.  AS THE GEORGIA SUPREME
COURT CORRECTLY STATED:  "THE CONSTITUTIONAL PROVISIONS  ...  CONFER
ONLY THE RIGHT TO HAVE COUNSEL PERFORM THOSE DUTIES AND TAKE SUCH
ACTIONS AS ARE PERMITTED BY THE LAW; AND TO REQUIRE COUNSEL TO CONFORM
TO THE RULES OF PRACTICE AND PROCEDURE, IS NOT A DENIAL OF THE BENEFIT
...  OF COUNSEL."  215 GA. 117, 119, 109 S.E.2D 44, 46.  WHAT IS IN
CONTROVERSY HERE IS THE ADEQUACY OF AN INEXTRICABLY UNIFIED SCHEME OF
GEORGIA CRIMINAL PROCEDURE.  THE RIGHT TO MAKE AN UNSWORN STATEMENT,
PROVIDED BY SEC. 38-415, IS AN ATTEMPT TO AMELIORATE THE HARSH
CONSEQUENCES OF THE INCOMPETENCY RULE OF THE SECTION FOLLOWING. 
STANDING ALONE, SEC. 38-415 RAISES NO CONSTITUTIONAL DIFFICULTY.  ONLY
WHEN CONSIDERED IN THE CONTEXT OF THE INCOMPETENCY PROVISION DOES IT
TAKE ON MEANING.  IF GEORGIA MAY CONSTITUTIONALLY ALTOGETHER BAR AN
ACCUSED FROM ESTABLISHING HIS INNOCENCE AS A WITNESS, IT GOES BEYOND
ITS CONSTITUTIONAL DUTY IF IT ALLOWS HIM TO MAKE A SPEECH TO THE JURY
WHETHER OR NOT AIDED BY COUNSEL.  ALTERNATIVELY, IF SEC. 38-416 IS
UNCONSTITUTIONAL - A LEGAL NULLITY - A GEORGIA ACCUSED CAN INSIST ON
BEING SWORN AS A COMPETENT WITNESS, AND THE PRIVILEGE ALSO TO MAKE AN
UNSWORN STATEMENT WITHOUT BENEFIT OF COUNSEL WOULD CONSTITUTE AN
ADDITIONAL BENEFIT OF WHICH HE MAY OR MAY NOT CHOOSE TO AVAIL HIMSELF. 
IF, AS IS THE TRUTH, SEC. 38-415 HAS MEANING ONLY WHEN APPLIED IN THE
CONTEXT OF SEC. 38-416'S RULE OF INCOMPETENCY, SURELY WE ARE NOT SO
IMPRISONED BY ANY FORMAL RULE GOVERNING OUR REVIEWING POWER THAT WE
CANNOT CONSIDER THE TWO PARTS OF A DISSEVERABLE, SINGLE WHOLE BECAUSE
PETITIONER HAS NOT ASKED US IN TERMS TO REVIEW BOTH HALVES.  IT IS
FORMALISM RUN RIOT TO FIND THAT THE DIVISION INTO TWO SEPARATE SECTIONS
OF WHAT IS ORGANICALLY INSEPARABLE MAY NOT FOR REVIEWING PURPOSE BE
TREATED AS A SINGLE, APPEALABLE UNIT.  THIS COURT, OF COURSE,
DETERMINES THE SCOPE OF ITS REVIEWING POWER OVER A STATE COURT
JUDGMENT. 

(2)  BUT IF LIMITATIONS ON OUR POWER TO REVIEW PREVENT US FROM
CONSIDERING AND RULING UPON THE CONSTITUTIONALITY OF THE APPLICATION OF
GEORGIA'S INCOMPETENCY LAW - WHICH ALONE CREATES THE SIGNIFICANT
CONSTITUTIONAL ISSUE - THEN I SHOULD THINK THAT WHAT IS LEFT OF THIS
MUTILATION SHOULD BE DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION.  CONSIDERED IN VACUO, SEC. 38-415 FAILS, AS HAS BEEN POINTED
OUT, TO PRESENT ANY REASONABLE DOUBTS AS TO ITS CONSTITUTIONALITY, FOR
IT PROVIDES ONLY AN ADDITIONAL RIGHT.  IF APPELLANT HAD IN FACT
PURPOSEFULLY CHOSEN NOT TO BE A WITNESS, HAD AGREED TO THE VALIDITY OF
THE INCOMPETENCY PROVISIONS, AND HAD INTENTIONALLY LIMITED HIS ATTACK
TO SEC. 38-415 AS APPLIED, HE WOULD BE PRESENTING AN ISSUE SO ABSTRACT
THAT THE COURT WOULD NOT, I BELIEVE, ENTERTAIN IT. 

PERHAPS THE ACCUSED FAILED TO OFFER HIMSELF AS A WITNESS BECAUSE HE
THOUGH IT WOULD BE A FUTILE ENDEAVOR UNDER SETTLED GEORGIA LAW, WHILE
THE OPPORTUNITY TO HAVE THE AID OF COUNSEL IN MAKING AN UNSWORN
STATEMENT PURSUANT TO SEC. 38-415 WOULD BE A DISCRETIONARY MATTER FOR
GEORGIA JUDGES.  SINCE I CANNOT ASSUME THAT APPELLANT PURPOSEFULLY
INTENDED TO WAIVE HIS CONSTITUTIONAL CLAIM CONCERNING HIS INCOMPETENCY
THOUGH HE MAY NOT EXPLICITLY HAVE ASSERTED THIS CLAIM - I HAVE NO
DIFFICULTY IN MOVING FROM THE COURT'S OBLIQUE RECOGNITION OF THE
RELEVANCE TO THIS CONTROVERSY OF SEC. 38-416 TO THE CANDID
DETERMINATION THAT THAT SECTION IS UNCONSTITUTIONAL. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE FRANKFURTER JOINS, CONCURRING. 

BECAUSE, AS APPLIED BY THE GEORGIA COURT, SEC. 38-415 GRANTS CRIMINAL
DEFENDANTS THE OPPORTUNITY TO MAKE UNSWORN STATEMENTS IN THEIR OWN
BEHALF, BUT WITHHOLDS FROM THE SAME DEFENDANTS THE ASSISTANCE OF THEIR
COUNSEL IN ELICITING PERHAPS MORE EFFECTIVE STATEMENTS, THE COURT TODAY
STRIKES DOWN THAT SECTION.  IT IS HELD TO BE UNCONSTITUTIONAL "IN THE
CONTEXT OF SEC. 38-416" WHICH RENDERS CRIMINAL DEFENDANTS INCOMPETENT
AS WITNESSES AT THEIR OWN TRIALS.  THE COURT DOES NOT, HOWEVER, TREAT
SEC. 38-416 AS ANYTHING MORE SUBSTANTIAL THAN "CONTEXT," AND, WHILE
RENDERING ITS VALIDITY DOUBTFUL, FAILS TO PASS UPON ITS
CONSTITUTIONALITY.  THE COURT'S HESITANCY TO REACH THAT QUESTION
APPEARS TO BE DUE TO APPELLANT'S TACTIC, AT THE TRIAL, OF OFFERING HIS
STATEMENT UNDER SEC. 38-415 AND, IN SO DOING, DEMANDING THE AID OF HIS
COUNSEL, BUT NOT OFFERING HIMSELF AS A COMPETENT WITNESS OR CHALLENGING
HIS EXCLUSION UNDER SEC. 38-416.  THIS HAS PROVEN TO BE A PERFECT CAST
OF APPELLANT'S LINE, FOR THE COURT HAS RISEN TO THE BAIT EXACTLY AS
ANTICIPATED.  THE RESULTING ADVANTAGE OF THE COURT'S PRESENT HOLDING TO
THE CRIMINAL DEFENDANT IN GEORGIA IS OBVIOUS - AS MATTERS NOW STAND,
THE DEFENDANT MAY MAKE AN UNSWORN STATEMENT AS ARTICULATE AND
CONVINCING AS THE AID OF COUNSEL CAN EVOKE, BUT THE PROSECUTION MAY NOT
CROSS-EXAMINE. 

IT IS TRUE THAT MERELY TO DEFEAT SUCH A RESULT IS INSUFFICIENT
JUSTIFICATION FOR THIS COURT TO REACH OUT AND DECIDE ADDITIONAL
CONSTITUTIONAL QUESTIONS OTHERWISE AVOIDABLE.  NEVERTHELESS, THE
PROBLEM APPELLANT POSES UNDER SEC. 38-415 IS SO HISTORICALLY AND
CONCEPTUALLY INTERTWISTED WITH THE RULE OF SEC. 38-416 THAT NOT ONLY
MUST THEY BE CONSIDERED TOGETHER, AS THE COURT EXPRESSLY RECOGNIZES,
BUT THEY MUST BE ALLOWED TO STAND OR FALL TOGETHER, AS A SINGLE UNITARY
CONCEPT, UNCIRCUMSCRIBED BY THE ACCIDENT OF DIVISIVE CODIFICATION.  THE
IN TERMS OF THE INCOMPETENCY IMPOSED BY SEC. 38-416.*  WERE THE LATTER
RULE NOT CODIFIED, ITS PROSCRIPTION WOULD HAVE TO BE UNDERSTOOD AS SEC.
38-415'S OPERATIVE PREMISE OF COMMON-LAW DISABILITY.  THE PURPORTED
BOON OF SEC. 38-415 WAS FOUNDED ON THAT DISABILITY, AGAINST THE
HARDSHIPS OF WHICH, NOWHERE ELSE PRESENTLY IMPOSED, IT WAS INTENDED TO
AT LEAST PARTIALLY RELIEVE.  I WOULD NOT WITHHOLD ADJUDICATION BECAUSE
OF THE FACT OF CODIFICATION, NOR MERELY ON ACCOUNT OF THE PROCEDURAL
DODGE RESORTED TO BY COUNSEL. 

*I AGREE WITH MY BROTHER FRANKFURTER THAT IF SEC. 38-415 IS TO BE
ISOLATED FROM THE INCOMPETENCY PROVISION OF SEC. 38-416, "WHAT IS LEFT
OF THIS MUTILATION SHOULD BE DISMISSED FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION." 

REACHING THE BASIC ISSUE OF INCOMPETENCY, AS I FEEL ONE MUST, I DO
NOT HESITATE TO STATE THAT IN MY VIEW SEC. 38-416 DOES NOT MEET THE
REQUIREMENTS OF DUE PROCESS AND THAT, AS AN UNSATISFACTORY REMNANT OF
AN AGE GONE BY, IT MUST FALL AS SURELY AS DOES ITS PALLIATIVE, SEC. 38
415.  UNTIL SUCH TIME AS CRIMINAL DEFENDANTS ARE GRANTED COMPETENCY BY
THE LEGISLATURE, THE VOID CREATED BY REJECTION OF THE CODIFIED COMMON
LAW RULE OF GEORGIA MAY BE FILLED BY STATE TRIAL JUDGES WHO WOULD HAVE
TO RECOGNIZE, AS SECURED BY THE FOURTEENTH AMENDMENT, THE RIGHT OF A
CRIMINAL DEFENDANT TO CHOOSE BETWEEN SILENCE AND TESTIFYING IN HIS OWN
BEHALF.  IN THE SAME MANNER THE STATE COURTS PRESENTLY IMPLEMENT OTHER
FEDERAL RIGHTS SECURED TO THE ACCUSED, AND THEREFORE THE FACT THAT A
VOID OF LOCAL POLICY WOULD BE CREATED IS NOT AN INSUPERABLE OBSTACLE TO
THE DISPOSITION I PROPOSE.  NOR WOULD PAST CONVICTIONS BE AUTOMATICALLY
RENDERED SUBJECT TO FATAL CONSTITUTIONAL ATTACK UNLESS, AS WAS, IN MY
VIEW, DONE HERE, THE PROPER CHALLENGE HAD BEEN PRESERVED BY APPROPRIATE
OBJECTION TO ACTIVE OPERATION OF THE CONCEPT EMBODIED IN THE
INCOMPETENCY RULE IN EITHER OF ITS PHASES.  IN VIEW OF THE CERTAIN FACT
THAT CRIMINAL PROSECUTIONS WILL CONTINUE TO BE HAD IN GEORGIA, AND THAT
SOME DEFENDANT, IF NOT APPELLANT HIMSELF AT HIS NEW TRIAL, WILL DEMAND
THE RIGHT TO TESTIFY IN HIS OWN BEHALF, IN STRICT COMPLIANCE WITH THE
PROCEDURAL STANDARD ADHERED TO TODAY, WE WILL SOONER OR LATER HAVE THE
QUESTION OF THE VALIDITY OF SEC. 38-416 BACK ON OUR DOORSTEP.  THE
RESULT, PREDICTABLY, WILL BE THE SAME AS THAT REACHED UNDER SEC. 38-415
TODAY.  IF THAT PROVES IN FACT TO BE THE COURT'S FUTURE DISPOSITION OF
THE CLAIM I ANTICIPATE, THE STABILITY OF INTERIM CONVICTIONS MAY WELL
BE JEOPARDIZED WHERE RELATED CONSTITUTIONAL CLAIMS ARE PRESERVED BUT,
PERHAPS, NOT PRESSED.  SO TOO, ON THE REVERSE SIDE OF THE COIN, THERE
MAY WELL BE INTERIM CONVICTIONS WHERE, HAD DEFENDANTS BEEN PERMITTED TO
TESTIFY UNDER OATH IN THEIR OWN BEHALF, VERDICTS OF ACQUITTAL WOULD
HAVE BEEN RETURNED.  THIS COURT SHOULD NOT ALLOW THE ADMINISTRATION OF
CRIMINAL JUSTICE TO BE THUS FRUSTRATED OR UNREASONABLY DELAYED BY SUCH
A FRAGMENTATION OF THE CRITICAL ISSUE THROUGH PROCEDURAL NICETIES MADE
SOLELY IN THE HOPE OF AVOIDING A CONTROLLING DECISION ON A QUESTION OF
THE FIRST MAGNITUDE. 

FOR THESE REASONS I DEEM IT IMPRACTICAL AS WELL AS UNWISE TO WITHHOLD
FOR A FUTURE DATE A DECISION BY THE COURT ON THE CONSTITUTIONALITY OF
SEC. 38-416. 

DISAGREEING WITH THE DISTORTED WAY BY WHICH THE COURT REVERSES THE
JUDGMENT, I JOIN IN ITS REVERSAL ONLY ON THE GROUNDS STATED HERE AND IN
THE OPINION OF MY BROTHER FRANKFURTER WHICH I JOIN. 
..END :












NEWSOM V. SMYTH 365 U.S. 604 


NO. 116.  ARGUED JANUARY 16-17, 1961 - DECIDED MARCH 27, 1961 - WRIT
DISMISSED. 


CERTIORARI WAS GRANTED IN THIS CASE BECAUSE IT WAS BELIEVED TO PRESENT
THE QUESTION WHETHER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES A STATE TO APPOINT COUNSEL TO ASSIST AN INDIGENT PRISONER IN
PROSECUTING HIS APPEAL FROM A STATE CONVICTION OF MURDER.  AFTER ORAL
ARGUMENT AND FULL CONSIDERATION, HELD THE RECORD DOES NOT ADEQUATELY
ESTABLISH THAT THE STATE SUPREME COURT FOUND OR WAS REQUIRED TO FIND
THAT THE FEDERAL CLAIM WAS PRESENTED TO IT; THE CASE FAILS TO PRESENT A
FEDERAL QUESTION; AND THE WRIT OF CERTIORARI IS DISMISSED AS
IMPROVIDENTLY GRANTED.  PP. 604-605. 

NEWSOM V. SMYTH, SUPERINTENDENT, VIRGINIA STATE PENITENTIARY. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

A WRIT OF CERTIORARI TO REVIEW THE JUDGMENT OF THE SUPREME COURT OF
APPEALS OF THE COMMONWEALTH OF VIRGINIA WAS GRANTED IN THIS CASE, 363
U.S. 802, IN THE BELIEF THAT IT DULY PRESENTED FOR THE COURT'S
CONSIDERATION THE QUESTION WHETHER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION REQUIRES THAT THE
STATE MUST, IN APPROPRIATE CIRCUMSTANCES, APPOINT COUNSEL TO ASSIST AN
INDIGENT PRISONER UNDER SENTENCE OF CONVICTION FOR A STATE CRIME IN
PROSECUTING HIS APPEAL.  AFTER HEARING ORAL ARGUMENT, AND UPON FULL
CONSIDERATION OF THE CASE, WE FIND THAT THE RECORD DOES NOT ADEQUATELY
ESTABLISH THAT THE VIRGINIA COURT FOUND OR WAS REQUIRED TO FIND THAT
THERE WAS PRESENTED TO IT THE FEDERAL CLAIM ON WHICH THE PRESENT CASE
WAS BROUGHT HERE.  THE CASE THUS FAILS TO PRESENT A FEDERAL QUESTION,
AND THE WRIT MUST BE DENIED AS IMPROVIDENTLY GRANTED.  SO ORDERED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

IN APRIL 1953 PETITIONER WAS FOUND GUILTY OF MURDER IN THE FIRST
DEGREE AND WAS SENTENCED TO LIFE IMPRISONMENT IN THE STATE
PENITENTIARY.  AT THE TRIAL, PETITIONER HAD BEEN REPRESENTED BY
COUNSEL, ALTHOUGH AT ALLOCATION HE HAD COMPLAINED THAT HIS COUNSEL HAD
FAILED TO PRESENT RELEVANT EVIDENCE.  ON APRIL 18, 1953, PETITIONER
WROTE TO THE TRIAL JUDGE AT HIS TRIAL, (FN1) NOTING AN APPEAL WITHIN
THE TIME ALLOWED THEREFOR UNDER VIRGINIA LAW.  IN A SECOND LETTER
WRITTEN FIVE DAYS LATER, (FN2) PETITIONER REQUESTED "THAT YOU APPOINT
ME COUNSEL TO APPEAL MY CASE TO THE STATE SUPREME COURT OF APPEALS." 
TO NEITHER LETTER DID HE RECEIVE ANY REPLY.  HE TOOK NO FURTHER STEPS
TO APPEAL HIS CONVICTION. 

IN JANUARY 1959 HE FILED IN THE VIRGINIA COURT A PETITION FOR A WRIT
OF HABEAS CORPUS.  THE LAW AND EQUITY COURT OF RICHMOND CONCLUDED THAT
THE PETITION DID NOT ALLEGE "A FAILURE OF THE TRIAL COURT TO ACCORD TO
THE ACCUSED THOSE PROCEDURAL SAFEGUARDS GUARANTEED TO HIM BY THE STATE
AND FEDERAL CONSTITUTIONS," AND ACCORDINGLY DENIED THE WRIT. 
PETITIONER SOUGHT REVIEW BY THE SUPREME COURT OF APPEALS, AND THAT
COURT REFUSED TO ISSUE A WRIT OF ERROR.  THEN PETITIONER SOUGHT REVIEW
HERE, AND CERTIORARI WAS GRANTED.  363 U.S. 802. 

THE QUESTION RAISED BY PETITIONER IS SUBSTANTIAL:  DOES THE FEDERAL
CONSTITUTION OBLIGATE THE SEVERAL STATES TO APPOINT COUNSEL TO ASSIST
INDIGENT DEFENDANTS TO PURSUE WHATEVER APPELLATE REMEDIES THE STATES
MAY OFFER?  CF. GRIFFIN V. ILLINOIS, 351 U.S. 12. 

THE OPINION OF THE LAW AND EQUITY COURT OF RICHMOND DISCUSSED THE
PROBLEM OF THIS CASE IN THOSE TERMS.  AFTER AN EXTENDED DISCUSSION OF
THE RIGHT OF INDIGENTS TO COUNSEL, THAT COURT QUOTED FROM 55 A.L.R.2D,
AT P. 1085, 2 L. ED. 2D, AT P. 1649, THE FOLLOWING: 

"  ...  THUS, THE ESTABLISHMENT OF THE RULE THAT A STATE MUST, AS A
MATTER OF FEDERAL CONSTITUTIONAL LAW, PROVIDE INDIGENTS WITH THE
ASSISTANCE OF COUNSEL TO PROSECUTE APPEALS IN CRIMINAL CASES WOULD
APPEAR TO BE NO MORE THAN A LOGICAL EXTENSION OF THE GRIFFIN
DOCTRINE." 

IT THEN ADDED: 

"WHETHER THIS VIEW BE CORRECT OR INCORRECT IS, OF COURSE, THE
QUESTION IN THE INSTANT CASE." 

AND THE SUPREME COURT OF APPEALS IN REFUSING A PETITION FOR WRIT OF
ERROR SAID THAT THE JUDGMENT WAS "PLAINLY RIGHT."  REGARDLESS OF
WHETHER THE COURTS BELOW WERE "REQUIRED TO FIND" THAT PETITIONER HAD
ADEQUATELY STATED HIS FEDERAL CLAIM, THOSE COURTS IN FACT DID SO FIND
AS THE ADJUDICATION WAS ON THE ISSUES EXPOSED IN THE RECORD.  (FN3) 

THE QUESTION WHETHER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT REQUIRES APPOINTMENT OF COUNSEL FOR INDIGENTS TO REPRESENT
THEM ON APPEAL FROM STATE COURT JUDGMENTS OF CONVICTION IS PRESENT AND
RIPE FOR DECISION.  I DISSENT FROM THE DISMISSAL OF THE CERTIORARI. 

FN1                                                           "APRIL
18, 1953 

"HONORABLE M. RAY DOUBLES. 

"HUSTINGS COURT PART II. 

"RICHMOND 24, VIRGINIA. 

"YOUR HONOR: 

"IN LUE OF ANY KNOWN ACTION ON THE PART OF MY ATTORNEY, I AM TAKING
THIS METHOD OF RESPECTFULLY NOTING AN APPEAL FROM THE 'LIFE SENTENCE'
IMPOSED UPON ME IN YOUR COURT ON APRIL 10, 1953. 

"I WILL WITHIN THE ALLOTED TIME ATTEMPT TO GET COUNSEL TO COMPLETE
THE APPEAL." 

FN2                   "APRIL 23, 1953 

"HONORABLE MR. RAY DOUBLES. 

"HUSTINGS COURT PART II. 

"RICHMOND, VA. 

"YOUR HONOR: 

"DUE TO CIRCUMSTANCES BEYOND MY CONTROL, I HAVE BEEN UNABLE TO
COMPLETE ARRANGEMENTS WITH AN ATTORNEY TO COMPLETE MY APPEAL. 

"THEREFORE, I RESPECTFULLY REQUEST THAT YOU APPOINT ME COUNSEL TO
APPEAL MY CASE TO THE STATE SUPREME COURT OF APPEALS." 

FN3  THE JUDGMENT OF THE SUPREME COURT OF APPEALS READ:  "THE
PETITION OF STUART W. NEWSOM FOR A WRIT OF ERROR  ...  HAVING BEEN
MATURELY CONSIDERED AND A TRANSCRIPT OF THE RECORD OF THE JUDGMENT
AFORESAID SEEN AND INSPECTED, THE COURT BEING OF THE OPINION THAT THE
SAID JUDGMENT IS PLAINLY RIGHT, DOTH REJECT SUCH PETITION, AND REFUSE
SAID WRIT OF ERROR, THE EFFECT OF WHICH IS TO AFFIRM THE JUDGMENT OF
THE COURT BELOW." 
..END :







FLORIDA, ISRAEL V. CANOVA, FLORIDA BOARD OF PHARMACY 365 U.S. 608 


NO. 697.  DECIDED MARCH 27, 1961.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  123 SO. 2D 672. 


FLORIDA EX REL. ISRAEL V. CANOVA ET AL., FLORIDA BOARD OF PHARMACY. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















ALLISON V. INDIANA 365 U.S. 608 


NO. 696.  DECIDED MARCH 27, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  - IND. - , 166 N.E.2D 171. 


ALLISON V. INDIANA. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

PER CURIAM 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 
..END :

















HITCHCOCK V. ARIZONA 365 U.S. 609 


NO. 718, MISC.  DECIDED MARCH 27, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 87 ARIZ. 277, 350 P.2D 681. 


HITCHCOCK V. ARIZONA. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 
..END :

















VAN HOOK V. UNITED STATES 365 U.S. 609 


NO. 705.  DECIDED MARCH 27, 1961 - CERTIORARI GRANTED; JUDGMENT
REVERSED; AND CASE REMANDED - REPORTED BELOW:  284 F.2D 489. 


VAN HOOK V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
REVERSED AND THE CASE REMANDED FOR RESENTENCING IN COMPLIANCE WITH RULE
32 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  GREEN V. UNITED STATES,
365 U.S. 301. 
..END :














LAURENS FEDERAL SAVINGS & LOAN ASSN. V. SOUTH CAROLINA TAX COMMISSION
365 U.S. 517 


NO. 126.  ARGUED MARCH 2, 1961 - DECIDED MARCH 20, 1961 - 236 S.C.2, 112
S.E.2D 716, REVERSED. 


HOME LOAN BANKS AND THEIR "ADVANCES" FROM STATE TAXATION, BARS A STATE
FROM REQUIRING A FEDERAL SAVINGS AND LOAN ASSOCIATION TO PAY
DOCUMENTARY STAMP TAXES ON PROMISSORY NOTES EXECUTED BY THE ASSOCIATION
IN FAVOR OF A FEDERAL HOME LOAN BANK TO COVER LOANS FROM THE BANK TO
THE ASSOCIATION.  PP. 518-524. 

(A)  THE IMMUNITY GRANTED TO "ADVANCES" OF A FEDERAL HOME LOAN BANK BY
SEC. 13 OF THE FEDERAL HOME LOAN BANK ACT IS BROAD ENOUGH TO BAR STATE
STAMP TAXES ON SUCH A LOAN.  PITTMAN V. HOME OWNERS' LOAN CORP., 308
U.S. 21,  PP. 519-522. 

(B)  SECTION 5(H) OF THE HOME OWNERS' LOAN ACT OF 1933, WHICH
PROVIDES THAT NO STATE SHALL TAX A FEDERAL SAVINGS AND LOAN ASSOCIATION
AT A HIGHER RATE THAN IT TAXES OTHER SIMILAR LOCAL MUTUAL OR
COOPERATIVE THRIFT AND HOME FINANCING INSTITUTIONS, DID NOT EXPRESSLY
OR IMPLIEDLY REPEAL SEC. 13 OF THE FEDERAL HOME LOAN BANK ACT, WHICH
EXEMPTS "ADVANCES" OF FEDERAL HOME LOAN BANKS FROM STATE TAXATION.  PP.
522-524. 

LAURENS FEDERAL SAVINGS & LOAN ASSN. V. SOUTH CAROLINA TAX COMMISSION ET
AL. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER THE STATE OF SOUTH CAROLINA HAS
POWER TO REQUIRE A FEDERAL SAVINGS AND LOAN ASSOCIATION LOCATED IN THAT
STATE TO PAY DOCUMENTARY STAMP TAXES ON PROMISSORY NOTES EXECUTED BY
THE ASSOCIATION IN FAVOR OF A FEDERAL HOME LOAN BANK TO COVER LOANS
FROM THE BANK TO THE ASSOCIATION. 

PETITIONER IS A FEDERAL SAVINGS AND LOAN ASSOCIATION ORGANIZED UNDER
THE HOME OWNERS' LOAN ACT OF 1933 (FN1) AND DOING BUSINESS IN LAURENS,
SOUTH CAROLINA.  IT IS ALSO A MEMBER, WITH BORROWING PRIVILEGES, OF THE
FEDERAL HOME LOAN BANK OF GREENSBORO, NORTH CAROLINA, WHICH WAS
ESTABLISHED UNDER THE FEDERAL HOME LOAN BANK ACT OF 1932.  (FN2)  FOR
THE PURPOSE OF MAKING MORTGAGE MONEY AVAILABLE IN THE COMMUNITY WHICH
IT SERVES, PETITIONER FEDERAL SAVINGS AND LOAN ASSOCIATION HAS SINCE
AUGUST 12, 1953, SECURED "ADVANCES," OR LOANS, FROM THE FEDERAL HOME
LOAN BANK OF GREENSBORO TOTALLING $5,675,000, FOR WHICH PETITIONER
EXECUTED WRITTEN PROMISSORY NOTES TO THE BANK AS REQUIRED BY THE 1932
ACT.  THE STATE ASSESSED AGAINST PETITIONER DOCUMENTARY STAMP TAXES ON
THESE NOTES OF $2,270 UNDER A STATE STATUTE IMPOSING A STAMP TAX ON
PROMISSORY NOTES AT THE RATE OF FOUR CENTS ON EACH $100.  (FN3)
PETITIONER PAID THESE TAXES UNDER PROTEST AND THEN BROUGHT THE PRESENT
ACTION IN THE STATE COURT FOR REFUND OF THE PAYMENT, (FN4) CLAIMING
THAT THE IMPOSITION OF THE TAXES CONSTITUTED AN UNLAWFUL ATTEMPT BY THE
STATE TO TAX THE "ADVANCES" OF THE FEDERAL HOME LOAN BANK OF GREENSBORO
IN VIOLATION OF THE PROVISION OF THE 1932 ACT EXEMPTING SUCH BANKS FROM
STATE TAXATION.  THIS PROVISION STATES, IN PERTINENT PART: 

"THE BANK, INCLUDING ITS FRANCHISE, ITS CAPITAL, RESERVES, AND
SURPLUS, ITS ADVANCES, AND ITS INCOME, SHALL BE EXEMPT FROM ALL
TAXATION NOW OR HEREAFTER IMPOSED BY THE UNITED STATES  ...  OR BY ANY
STATE  ...  ."  12 U.S.C. SEC. 1433. 

THE SUPREME COURT OF SOUTH CAROLINA AFFIRMED THE JUDGMENT UPHOLDING
THE STATE'S TAXING POWER, BASING ITS AFFIRMANCE ON TWO GROUNDS.  (FN5)
IT WAS OF THE OPINION, FIRST, THAT THE EXEMPTION PROVISION OF THE 1932
ACT, ALTHOUGH COMPLETELY EXEMPTING THE LOANS OF THE FEDERAL HOME LOAN
BANK FROM STATE TAXATION, DID NOT COVER THE STAMP TAXES ON THE
PROMISSORY NOTES SECURING THE LOANS BECAUSE THESE TAXES WERE IMPOSED
UPON THE BORROWING SAVINGS AND LOAN ASSOCIATION RATHER THAN UPON THE
LENDING HOME BANK AND FOR THIS REASON SHOULD NOT BE CONSIDERED TAXES ON
THE BANK'S LOANS WITHIN THE MEANING OF THE 1932 PROVISION.  SECONDLY,
THE STATE COURT HELD THAT REGARDLESS OF THE ORIGINAL SCOPE OF THE 1932
EXEMPTION, THAT EXEMPTION WAS IMPLICITLY REPEALED AS TO TRANSACTIONS
LIKE THIS ONE BY THE TAXATION PROVISION OF THE HOME OWNERS' LOAN ACT OF
1933.  WE GRANTED CERTIORARI IN ORDER TO DETERMINE WHETHER THE STATE
HAS IMPOSED A TAX FORBIDDEN BY CONGRESS.  (FN6) 

THE FIRST QUESTION IS WHETHER THE IMMUNITY GRANTED "ADVANCES" OF THE
FEDERAL HOME LOAN BANK BY THE 1932 ACT IS BROAD ENOUGH TO BAR STATE
STAMP TAXES ON THIS LOAN TRANSACTION.  WE DECIDED A VERY SIMILAR
QUESTION IN PITTMAN V. HOME OWNERS' LOAN CORP., 308 U.S. 21.  THERE THE
STATE OF MARYLAND IMPOSED A STAMP TAX UPON THE RECORDING OF MORTGAGES
AT THE RATE OF 10 CENTS FOR EACH $100 OF THE PRINCIPAL AMOUNT OF THE
MORTGAGE INDEBTEDNESS.  THE HOME OWNERS' LOAN CORPORATION SOUGHT TO
RECORD A MORTGAGE UPON PAYMENT OF THE ORDINARY RECORDING FEE WITHOUT
PAYMENT OF THE ADDITIONAL STATE STAMP TAX.  THE MORTGAGE HAD BEEN
ISSUED TO IT AS SECURITY FOR A LOAN WHICH THE CORPORATION HAD MADE
UNDER NOW DEFUNCT PROVISIONS OF THE HOME OWNERS' LOAN ACT OF 1933. 
ITS LOANS" SHALL BE EXEMPT "FROM ALL TAXATION  ...  NOW OR HEREAFTER
IMPOSED  ...  BY ANY STATE" EXCEPT FOR REAL ESTATE TAXES.  WE
UNANIMOUSLY AFFIRMED THE HOLDING OF THE STATE COURT THAT THIS EXEMPTION
PROVISION, PRACTICALLY IDENTICAL IN LANGUAGE AND SUBSTANCE TO THE
EXEMPTION IN 12 U.S.C. SEC. 1433, PRECLUDED APPLICATION OF THE
RECORDING TAX TO MORTGAGES SECURING LOANS FROM THE CORPORATION. 

THE STATE COURT IN THE PRESENT CASE, ALTHOUGH DRAWING NO DISTINCTION
BETWEEN THE TERMS "LOANS" AND "ADVANCES," NEVERTHELESS THOUGHT THE
PITTMAN DECISION INAPPLICABLE HERE BECAUSE IN THAT CASE THE MORTGAGE
WAS PRESENTED FOR RECORDING BY THE EXEMPT LENDER ITSELF (THE HOME
OWNERS' LOAN CORPORATION) WHILE HERE THE SOUTH CAROLINA TAX WAS
ASSESSED AGAINST THE BORROWING PETITIONER ASSOCIATION RATHER THAN
AGAINST THE EXEMPT LENDER (THE HOME LOAN BANK).  WE DISTINCTLY SAID IN
PITTMAN, HOWEVER, THAT THE FACT THAT THE STATE TAXING STATUTE DID NOT
REQUIRE PAYMENT OF THE TAX BY THE LENDER HAS "NO DETERMINING
SIGNIFICANCE," OUR REASON BEING THAT "'WHOEVER PAYS IT IT IS A TAX UPON
THE MORTGAGE AND THAT IS WHAT IS FORBIDDEN BY THE LAW OF THE UNITED
STATES.'"  (FN7)  WE WENT ON IN PITTMAN TO RECOGNIZE THAT THE REAL
QUESTION WAS WHETHER THE "CRITICAL TERM  ...  'LOANS'  ...  SHOULD BE
CONSTRUED AS COVERING THE ENTIRE PROCESS OF LENDING, THE DEBTS WHICH
RESULT THEREFROM AND THE MORTGAGES GIVEN  ...  AS SECURITY."  (FN8)
THE QUESTION HERE IS THE SAME AS THE SYNONYMOUS TERM "ADVANCES" (FN9)
AND AS TO THE PROMISSORY NOTES SECURING THE ADVANCES, SINCE THE
LANGUAGE OF THE EXEMPTION IS EQUALLY BROAD.  THE FACTORS GIVEN WEIGHT
IN THE PITTMAN OPINION IN DECIDING THAT THE EXEMPTION COVERED THE
ENTIRE LOAN TRANSACTION ARE ALSO PRESENT HERE.  THE ACT UNDER
CONSIDERATION THERE REQUIRED THAT THE LOANS "BE SECURED BY A DULY
RECORDED HOME MORTGAGE" JUST AS HERE THE ACT REQUIRES THE ADVANCES TO
BE SECURED BY THE NOTE OR OBLIGATION OF THE BORROWER.  HERE, AS WE SAID
IN PITTMAN, THEREFORE, THE DOCUMENTS SOUGHT TO BE TAXED "WERE
INDISPENSABLE ELEMENTS IN THE LENDING OPERATIONS AUTHORIZED BY
CONGRESS"  (FN10) AND WERE REQUIRED FOR THE PROTECTION OF THE LENDING
INSTITUTION.  THE TAX IN PITTMAN WAS "GRADED ACCORDING TO THE AMOUNT OF
THE LOAN" (FN11) AND HERE TOO THE FACE VALUE OF THE NOTES IS THE
MEASURE OF THE TAX. 

WHILE THE QUESTION OF THE BREADTH OF THE EXEMPTION OF "ADVANCES" IN
THE 1932 ACT THUS IS PERSUASIVELY ANSWERED BY OUR REASONING IN PITTMAN,
THE SAME CONCLUSION IS CALLED FOR BY THE LANGUAGE AND LEGISLATIVE
HISTORY OF THAT ACT AS A WHOLE.  IT SET UP A SYSTEM OF FEDERALLY
CHARTERED HOME LOAN BANKS FOR THE PURPOSE, AS STATED IN THE HOUSE AND
SENATE COMMITTEE REPORTS, OF PLACING "LONG-TERM FUNDS IN THE HANDS OF
LOCAL INSTITUTIONS" IN ORDER TO ALLEVIATE THE PRESSING NEED OF HOME
OWNERS FOR "LOW-COST, LONG-TERM, INSTALLMENT MORTGAGE MONEY" AND TO
"DECREASE COSTS OF MORTGAGE MONEY" WITH A "RESULTING BENEFIT TO HOME
OWNERSHIP IN THE FORM OF LOWER COSTS AND MORE LIBERAL LOANS."  (FN12)
IT IS TO THIS END THAT THE ACT AUTHORIZES THE FEDERAL HOME LOAN BANKS
TO MAKE "ADVANCES" OF FUNDS TO ELIGIBLE BORROWER INSTITUTIONS "UPON THE
NOTE OR OBLIGATION" OF THE BORROWER SECURED PRIMARILY BY MORTGAGES ON
HOMES.  (FN13)  THE EXEMPTION OF THESE "ADVANCES" FROM TAXATION
OBVIOUSLY IS IN KEEPING WITH THE ACT'S OVERALL POLICY OF MAKING THESE
MORTGAGE FUNDS AVAILABLE AT LOW COST TO HOME OWNERS.  REGARDLESS OF WHO
PAYS THE DOCUMENTARY STAMP TAXES HERE AT ISSUE, THE NECESSARY EFFECT OF
THE TAXES IS TO INCREASE THE COST OF OBTAINING THE ADVANCES OF FUNDS
FROM THE HOME LOAN BANK TO BE USED IN MAKING LOANS TO HOME OWNERS.  IN
ITS IMPACT, THEREFORE, THIS TAX, WHETHER NOMINALLY IMPOSED ON THE BANK
OR ON THE PETITIONER, IS BOUND TO INCREASE THE COST OF LOANS TO HOME
OWNERS AND THUS CONTRAVENE THE BASIC PURPOSE OF CONGRESS IN INSULATING
THESE ADVANCES FROM STATE TAXATION.  WE HOLD THAT IT WAS ERROR TO
CONSTRUE THE EXEMPTION PROVISION OF THE 1932 ACT AS NOT BROAD ENOUGH TO
BAR IMPOSITION OF THE STATE'S STAMP TAXES ON THE NOTES WHICH WERE AN
INTEGRAL PART OF THESE LOAN TRANSACTIONS. 

THIS LEAVES FOR CONSIDERATION THE STATE COURT'S HOLDING THAT, IN
INSTANCES WHERE THE BORROWER IS A FEDERAL SAVINGS AND LOAN ASSOCIATION
SUCH AS PETITIONER, THE EXEMPTION CONFERRED UPON THE ENTIRE LOAN
TRANSACTION BY THE 1932 ACT WAS IMPLIEDLY REPEALED BY THE TAXATION
PROVISION IN THE HOME OWNERS' LOAN ACT OF 1933.  THE COURT BASED THIS
HOLDING UPON THE FOLLOWING LANGUAGE OF THE 1933 ACT:

"  ...  NO STATE  ...  OR LOCAL TAXING AUTHORITY SHALL IMPOSE ANY TAX
ON SUCH ASSOCIATIONS OR THEIR FRANCHISE, CAPITAL, RESERVES, SURPLUS,
LOANS, OR INCOME GREATER THAN THAT IMPOSED BY SUCH AUTHORITY ON OTHER
SIMILAR LOCAL MUTUAL OR COOPERATIVE THRIFT AND HOME FINANCING
INSTITUTIONS."  12 U.S.C. SEC. 1464(H). 

THIS PROVISION UNEQUIVOCALLY BARS DISCRIMINATORY STATE TAXATION OF
THE FEDERAL SAVINGS AND LOAN ASSOCIATIONS.  THE STATE COURT HELD THAT
THIS PROHIBITION OF DISCRIMINATORY TAXES ALSO IMPLIEDLY AUTHORIZES ALL
NONDISCRIMINATORY STATE TAXES IMPOSED ON THESE FEDERAL ASSOCIATIONS,
THEREBY TO THAT EXTENT REPEALING THE 1932 EXEMPTION.  WE AGREE WITH
PETITIONER, HOWEVER, THAT IN ENACTING SEC. 1464(H) IN 1933 CONGRESS DID
NOT, EITHER EXPRESSLY OR IMPLIEDLY, REPEAL THE PROVISION OF THE 1932
ACT WHICH HAD EXEMPTED THESE LOAN TRANSACTIONS FROM STATE TAXATION. 
CLEARLY THERE IS NO EXPRESS LANGUAGE PROVIDING FOR SUCH REPEAL, AND IT
IS SIGNIFICANT THAT WHEN OTHER PROVISIONS OF THE 1932 ACT WERE TO BE
SUPERSEDED BY THE 1933 ACT THEY WERE REPEALED EXPRESSLY AND NOT BY
IMPLICATION.  (FN14) IT ALSO WOULD BE DIFFICULT TO THINK OF LESS APT
CIRCUMSTANCES FOR THE FINDING OF AN IMPLIED REPEAL.  THESE TWO ACTS,
BOTH DESIGNED TO PROVIDE HOME OWNERS WITH EASY CREDIT AT LOW COST, WERE
PASSED WITHIN A YEAR OF EACH OTHER ON THE BASIS OF THE SAME HEARINGS
AND WHEN READ TOGETHER FORM A CONSISTENT SCHEME IN WHICH THE 1932
EXEMPTION PROVISION CONTRIBUTES TO THE MAJOR PURPOSE OF LOW-COST CREDIT
PRECISELY AS IT DID BEFORE PASSAGE OF THE 1933 ACT.  NOR IS THERE EVEN
AN INTIMATION IN THE LEGISLATIVE HISTORY OF THE 1933 ACT OF ANY
INTENTION TO REDUCE THE SCOPE OF THE EXEMPT STATUS OF HOME LOAN BANKS. 
INDEED, THE ONLY COMMENT THAT WOULD SEEM TO HAVE ANY BEARING ON THE
MATTER IS THE STATEMENT IN THE HOUSE AND SENATE COMMITTEE REPORTS THAT
THE 1933 ACT WAS TO PROVIDE NEW MEANS OF "DIRECT RELIEF TO HOME OWNERS"
WITHOUT "OTHERWISE DISTURBING THE FUNCTIONING OF THE FEDERAL HOME-LOAN
BANK SYSTEM."  (FN15)  MOREOVER, A CONSTRUCTION OF THE 1933 ACT TO
PERMIT STATE TAXATION OF THESE LOAN TRANSACTIONS WHEN THE BORROWER IS A
FEDERAL SAVINGS AND LOAN ASSOCIATION WOULD BRING ABOUT AN INCONGRUOUS
RESULT.  THE STATES WOULD STILL BE BARRED BY THE EXEMPTION PROVISION OF
THE 1932 ACT FROM TAXING THESE TRANSACTIONS WHEN THE BORROWER IS A
STATE-CHARTERED ASSOCIATION.  (FN16) TO CONTEND THAT THE 1933 ACT
ALLOWS THE STATE TO TAX FEDERAL ASSOCIATIONS ON THE LOAN TRANSACTIONS
WHEN IT IS BARRED BY THE 1932 ACT FROM SIMILARLY TAXING STATE-CHARTERED
ASSOCIATIONS IS TO URGE THE VERY KIND OF DISCRIMINATORY TAXATION WHICH
THE 1933 ACT ITSELF EMPHATICALLY PROHIBITS.  AND SURELY IT WOULD BE
COMPLETELY UNWARRANTED TO CONSTRUE THE 1933 ACT, WHICH CONCERNS ONLY
FEDERAL SAVINGS AND LOAN ASSOCIATIONS, AS ELIMINATING THE EXEMPTION ON
HOME LOAN BANK "ADVANCES" WHEN THE BORROWER IS A STATE-CHARTERED
INSTITUTION. 

FOR ALL THESE REASONS, THE MORE SENSIBLE AS WELL AS THE MORE NATURAL
CONCLUSION IS THAT IN THE 1933 ACT CONGRESS LEFT UNIMPAIRED THE
EXEMPTION OF THESE LOAN TRANSACTIONS FROM STATE TAXATION CONFERRED BY
THE 1932 ACT.  THE JUDGMENT OF THE STATE COURT THEREFORE IS REVERSED
AND THE CAUSE REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  48 STAT. 128, 12 U.S.C. SECS. 1461-1468. 

FN2  47 STAT. 725, 12 U.S.C. SECS. 1421-1449. 

FN3  CODE OF LAWS OF SOUTH CAROLINA, SEC. 65-688 (1952). 

FN4  SUCH SUITS ARE AUTHORIZED BY CODE OF LAWS OF SOUTH CAROLINA,
SEC. 65-2662 (1952). 

FN5  236 S.C. 2, 112 S.E.2D 716. 

FN6  364 U.S. 812. 

FN7  308 U.S., AT 31, CITING FEDERAL LAND BANK V. CROSLAND, 261 U.S.
374, 378-379. 

FN8  308 U.S., AT 31. 

FN9  THE FACT THAT THE TERM USED THROUGHOUT THE 1932 ACT WITH
REFERENCE TO THESE TRANSACTIONS IS "ADVANCES" RATHER THAN "LOANS" IS
NOT A SIGNIFICANT DISTINCTION FROM PITTMAN BUT MERELY REPRESENTS A
CONGRESSIONAL CHOICE BETWEEN SYNONYMS, AS WAS INDICATED BY SENATOR REED
IN INTRODUCING ON THE SENATE FLOOR THE AMENDMENT WHICH ADDED THE WORD
"ADVANCES" TO THE EXEMPTION PROVISION: 

MR. REED.  WE SHOULD NOT, OF COURSE, PUT THE LOANS OF THIS NEW BANK
IN THE POSITION OF BEING TAXABLE IN THE SEVERAL STATES."  75 CONG. REC.
14659. 

FN10  308 U.S., AT 32. 

FN11  308 U.S., AT 31. 

FN12  H.R. REP. NO. 1418, 72D CONG., 1ST SESS., PP. 8-10; S. REP. NO.
837, 72D CONG., 1ST SESS., PP. 9-11. 

FN13  12 U.S.C. SECS. 1429-1430B. 

FN14  SEE 48 STAT. 129; H.R. REP. NO. 55, 73D CONG., 1ST SESS., P. 1;
S. REP. NO. 91, 73D CONG., 1ST SESS., P. 1. 

FN15  H.R. REP. NO. 55, 73D CONG., 1ST SESS., P. 1; SEE S. REP. NO.
91, 73D CONG., 1ST SESS., P. 1. 

FN16  THE 1932 EXEMPTION OF HOME LOAN BANK "ADVANCES" OBVIOUSLY DOES
NOT IN ANY WAY DEPEND UPON THE FACT THAT THE BORROWER IS A FEDERAL
SAVINGS AND LOAN ASSOCIATION, AS IS MADE ALL THE MORE EVIDENT BY THE
FACT THAT SUCH FEDERAL ASSOCIATIONS DID NOT COME INTO EXISTENCE UNTIL
PASSAGE OF THE 1933 ACT. 
..END :








REYNOLDS V. COCHRAN 365 U.S. 525 


NO. 115.  ARGUED MARCH 2, 1961 - DECIDED MARCH 20, 1961 - REVERSED AND
REMANDED. 


IN HIS PETITION FOR HABEAS CORPUS, FILED IN A STATE SUPREME COURT,
PETITIONER ALLEGED THAT, AFTER HE HAD FINISHED SERVING HIS TERMS FOR
TWO SEPARATE FELONIES OF WHICH HE HAD BEEN CONVICTED AND AFTER HE HAD
BEEN RELEASED, HE WAS ARRESTED BY STATE AUTHORITIES, TAKEN TO ANOTHER
COUNTY, AND THERE BROUGHT TO TRIAL TWO DAYS AFTER HIS ARREST ON A
CHARGE OF BEING A "SECOND OFFENDER" IN VIOLATION OF A STATE STATUTE. 
HE FURTHER ALLEGED THAT HE TOLD THE TRIAL COURT THAT HE HAD ALREADY
RETAINED COUNSEL FOR HIS OWN DEFENSE, THAT HIS COUNSEL WAS ON THE WAY
AND WAS DUE TO ARRIVE ON THE DAY OF THE TRIAL, AND THAT HE ASKED THAT
HIS TRIAL BE POSTPONED UNTIL HIS COUNSEL ARRIVED; BUT THAT THE COURT
DENIED A CONTINUANCE AND PROCEEDED TO CONVICT HIM ON THE RECORD OF HIS
TWO PREVIOUS CONVICTIONS AND HIS ADMISSION THAT HE HAD BEEN GUILTY OF
THOSE OFFENSES, AND HE WAS SENTENCED TO IMPRISONMENT.  THE STATE
SUPREME COURT DISMISSED HIS PETITION WITHOUT A HEARING.  HELD:  THE
JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS.  PP. 526-533. 

(A)  PETITIONER WAS ENTITLED TO AN OPPORTUNITY TO PROVE HIS CLAIM
THAT HE HAD BEEN DEPRIVED OF DUE PROCESS BY THE REFUSAL OF THE TRIAL
JUDGE TO GRANT HIS MOTION FOR A CONTINUANCE IN ORDER THAT HE MIGHT HAVE
THE ASSISTANCE OF THE COUNSEL HE HAD RETAINED IN THE PROCEEDINGS
AGAINST HIM.  CHANDLER V. FRETAG, 348 U.S. 3.  PP. 527-531. 

(B)  IF THE TRIAL COURT ERRED IN DENYING PETITIONER'S MOTION FOR A
CONTINUANCE, THAT ERROR WAS NOT HARMLESS UNDER THE FACTS OF THIS CASE. 
PP. 531-533. 

REYNOLDS V. COCHRAN, DIRECTOR OF DIVISION OF CORRECTIONS. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1956 PETITIONER WAS CONVICTED OF GRAND LARCENY IN THE CRIMINAL
COURT OF POLK COUNTY, FLORIDA, AND SENTENCED TO SERVE TWO YEARS IN
PRISON.  IN DECEMBER 1957, WITH TIME FOR GOOD BEHAVIOR, PETITIONER WAS
RELEASED FROM PRISON AND DISCHARGED FROM CUSTODY AS AN ABSOLUTELY FREE
MAN.  SOME TWO MONTHS AFTER HIS RELEASE AND DISCHARGE, THE POLK COUNTY
PROSECUTOR FILED AN INFORMATION AGAINST PETITIONER CHARGING THAT HE
"HAS BEEN CONVICTED OF TWO (2) FELONIES UNDER THE LAWS OF THE STATE OF
FLORIDA, CONTRARY TO SECTION 775.09, FLORIDA STATUTES, 1957 (FN1)  ...
AND AGAINST THE PEACE AND DIGNITY OF THE STATE OF FLORIDA."  THE TWO
CONVICTIONS REFERRED TO WERE THE 1956 CONVICTION FOR GRAND LARCENY AND
A 1934 CONVICTION FOR ROBBERY FOR WHICH PETITIONER HAD ALSO COMPLETELY
SERVED HIS SENTENCE.  UPON THE FILING OF THIS INFORMATION, PETITIONER
WAS PROMPTLY ARRESTED, ARRAIGNED AND, ACCORDING TO THE JUDGMENT OF THE
TRIAL COURT, "DID THEN AND THERE FREELY AND VOLUNTARILY PLEAD GUILTY TO
THE INFORMATION FILED."  THE COURT THEN PROCEEDED TO FIND PETITIONER
'GUILTY OF THE OFFENSE OF SECOND OFFENDER" AND ORDERED THAT FOR "SAID
OFFENSE, HE BE CONFINED IN THE STATE PRISON OF FLORIDA AT HARD LABOR
FOR A TERM OF TEN (10) YEARS."  (FN2)  PETITIONER LATER BROUGHT THIS
ORIGINAL PETITION FOR HABEAS CORPUS IN THE SUPREME COURT OF FLORIDA
CHALLENGING HIS CONFINEMENT UNDER THIS JUDGMENT ON THE GROUND THAT IT
WAS NOT AUTHORIZED BY THE FLORIDA SECOND-OFFENDER STATUTE AND THAT IT
VIOLATED BOTH THE STATE AND THE FEDERAL CONSTITUTIONS IN SEVERAL
DIFFERENT RESPECTS.  DESPITE THE FACT THAT NONE OF THE CHARGES MADE BY
PETITIONER WERE DENIED BY THE STATE, THE FLORIDA COURT DISMISSED HIS
PETITION WITHOUT A HEARING.  (FN3)  WE GRANTED CERTIORARI TO CONSIDER
THE CORRECTNESS OF THIS PEREMPTORY DENIAL OF THE PETITION IN VIEW OF
THE SERIOUS NATURE OF THE CHARGES MADE.  (FN4) 

SINCE IT IS CONCEDED BY THE STATE THAT THE FEDERAL QUESTIONS
PRESENTED HERE WERE PROPERLY RAISED AND PASSED ON BELOW, AND SINCE IT
IS CLEAR THAT FOR THE PURPOSES OF THIS PROCEEDING THE FACTS SET FORTH
BY PETITIONER MUST BE ACCEPTED AS TRUE, (FN5) WE GO DIRECTLY TO THE
CHARGES MADE IN THE PETITION.  THOSE CHARGES WERE CLEARLY STATED BY
PETITIONER HIMSELF IN THE FOLLOWING EXCERPT FROM HIS RATHER CRUDELY
DRAWN APPLICATION FOR HABEAS CORPUS: 

"YOUR PETITIONER WOULD SHOW THIS HONORABLE COURT THAT AT THE TIME OF
HIS ARREST HE WAS LIVING IN VALUSIA COUNTY, DELAND FLORIDA, THAT HE WAS
ARRESTED WITHOUT A WARRANT, THAT HE WAS ARRESTED ON STRENGTH OF A PICK
UP ORDER FROM SHERIFF OFFICE, BARTOW, POLK COUNTY, FLORIDA, THAT THE
ARRESTING OFFICER, A DEPUTY SHERIFF OF VOLUSIA COUNTY DID NOT KNOW WHY
HE WAS ARRESTING YOUR PETITIONER AND DID NOT HAVE A WARRANT TO MAKE A
LEGAL ARREST, FURTHER THAT YOUR PETITIONER WAS TAKEN AGAINST HIS WILL
ACROSS FIVE (5) COUNTY LINES.  THE SAID COUNTY LINES BEING VOLUSIA,
SEMINOLE, ORANGE, OSCEALA, INTO POLK COUNTY ALL OF STATE OF FLORIDA,
WITHOUT HIS KNOWING WHY HE WAS ARRESTED OR THE ARRESTING OFFICER
KNOWING WHY OR WHAT CHARGE HE WAS MAKING ARREST FOR; YOUR PETITIONER,
WAS TAKEN ACROSS THE AFORE SAID COUNTIES BY THE ARRESTING OFFICER, A
DEPUTY SHERIFF OF VOLUSIA COUNTY, FLORIDA. 

"YOUR PETITIONER CONTENDS THAT ONCE HE WAS IN THE CLUTCHES OF THE
CRIMINAL COURT OF RECORD IN AND FOR POLK COUNTY FLORIDA; HE WAS A
CONVICTED PERSON BEFORE HE WAS EVER TRIED. 

"TO SUPPORT THE ABOVE STATEMENT YOUR PETITIONER WOULD SHOW THAT HE
WAS FORCED TO GO BEFORE THE COURT AGAINST HIS WILL; THAT ONCE BEFORE
THE COURT YOUR PETITIONER INFORMED THE COURT THAT HE THEN HAD LEGAL
COUNSEL ON THE WAY TO REPRESENT HIM IN WHAT EVER CHARGE MAY BE; A
BETTER DESCRIPTION OF AFORE SAID KNOWN BY MRS. SADIE M. BRADLEY, 317
WEST MINNCASATA AVENUE, DELAND VOLUSIA COUNTY, FLORIDA, AND, D.C.
LAIRD; ATTORNEY AT LAW, LAKELAND POLK FLORIDA.  THAT PETITIONER HAD
BEEN ARRESTED ON THE 18TH DAY OF FEBRUARY 1958 IN VALUSIA COUNTY, AND
HIS ATTORNEY WAS TO ARRIVE THIS MORNING THIS DATE BEING THE 20TH DAY OF
FEBRUARY 1958, THAT AFTER BEING SO INFORMED 'THE TRIAL COURT SO STATED
TO YOUR PETITIONER 'YOU DO NOT NEED COUNSEL IN THIS CASE.'  COUNSEL
WOULD NOT BE OF ANY ASSISTANCE YOU YOUR PETITIONER, 'NO POINT IN
CALLING A DOCTOR TO A MAN ALREADY DEAD.' 

"THE TRIAL COURT THEN PROCEEDED TO READ OFF TWO (2) CONVICTIONS FROM
YOUR PETITIONERS RECORD AND THEN ASKED, YOU ARE GUILTY OF THESE TWO
CONVICTIONS, ARE YOU NOT?  PETITIONER SAYING YES YOUR HONOR, BUT THE
COURT, I FIND, YOU GUILTY OF BEING A 'SECOND OFFENDER' AND SENTENCE YOU
STEPHEN FRANKLIN REYNOLDS TO TEN (10) YEARS IN STATE PRISON  ...  ." 

ON THE BASIS OF THESE FACTS, PETITIONER CONTENDS, AMONG OTHER THINGS,
THAT HIS CONFINEMENT IS NOT AUTHORIZED BY THE FLORIDA SECOND-OFFENDER
STATUTE BECAUSE HE HAD ALREADY SERVED THE SENTENCES IMPOSED UPON EACH
OF HIS PRIOR CONVICTIONS, (FN6) AND THAT SUCH CONFINEMENT VIOLATES THE
STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS AGAINST EX POST FACTO
LAWS AND AGAINST DOUBLE JEOPARDY.  IT WOULD, OF COURSE, BE ENTIRELY
INAPPROPRIATE UNDER THE CIRCUMSTANCES OF THIS CASE FOR THIS COURT TO
CONSIDER THE QUESTIONS POSED UNDER STATE LAW.  NOR DO WE FIND IT
NECESSARY TO CONSIDER THESE PARTICULAR QUESTIONS RAISED UNDER THE
FEDERAL CONSTITUTION BEYOND THE OBSERVATION THAT THEY CERTAINLY CANNOT
FAIRLY BE CHARACTERIZED AS FRIVOLOUS.  (FN7)  FOR WE THINK IT CLEAR
THAT THIS CASE MUST BE REVERSED FOR A HEARING IN ORDER TO AFFORD
PETITIONER AN OPPORTUNITY TO PROVE HIS ALLEGATIONS WITH REGARD TO
ANOTHER CONSTITUTIONAL CLAIM - THAT HE WAS DEPRIVED OF DUE PROCESS BY
THE REFUSAL OF THE TRIAL JUDGE TO GRANT HIS MOTION FOR A CONTINUANCE IN
ORDER THAT HE MIGHT HAVE THE ASSISTANCE OF THE COUNSEL HE HAD RETAINED
IN THE PROCEEDING AGAINST HIM.  (FN8) 

IN CHANDLER V. FRETAG, (FN9) WE MADE IT EMPHATICALLY CLEAR THAT A
PERSON PROCEEDED AGAINST AS A MULTIPLE OFFENDER HAS A CONSTITUTIONAL
RIGHT TO THE ASSISTANCE OF HIS OWN COUNSEL IN THAT PROCEEDING.  UNDER
THE FACTS OF THIS CASE, AS ALLEGED IN THE PETITION FILED BEFORE THE
FLORIDA SUPREME COURT, THE DECISION IN CHANDLER IS SQUARELY IN POINT
AND CONTROLLING.  UNDER THOSE FACTS, THE STATEMENT OF THIS COURT IN
POWELL V. ALABAMA, (FN10) WHICH PROVIDED THE BASIS OF OUR HOLDING IN
CHANDLER, (FN11) IS WHOLLY APPLICABLE:  "IF IN ANY CASE, CIVIL OR
CRIMINAL, A STATE OR FEDERAL COURT WERE ARBITRARILY TO REFUSE TO HEAR A
PARTY BY COUNSEL, EMPLOYED BY AND APPEARING FOR HIM, IT REASONABLY MAY
NOT BE DOUBTED THAT SUCH A REFUSAL WOULD BE A DENIAL OF A HEARING, AND,
THEREFORE, OF DUE PROCESS IN THE CONSTITUTIONAL SENSE." 

THE STATE SEEKS TO AVOID THE APPLICATION OF THE HOLDING IN CHANDLER
ON THE BASIS OF A CONTENTION THAT EVEN IF IT WAS ERROR FOR THE TRIAL
JUDGE TO DENY PETITIONER'S MOTION FOR A CONTINUANCE, THAT ERROR WAS
HARMLESS UNDER THE FACTS OF THIS CASE.  THE ARGUMENT OFFERED IN SUPPORT
OF THIS CONTENTION IS THAT SINCE PETITIONER ADMITTED THE ONLY FACT AT
ISSUE IN THE PROCEEDING - THAT HE HAD BEEN CONVICTED OF A PREVIOUS
FELONY IN 1934 AS CHARGED IN THE INFORMATION - A LAWYER WOULD HAVE BEEN
OF NO USE TO HIM.  WE FIND THIS ARGUMENT TOTALLY INADEQUATE TO MEET THE
DECISION IN CHANDLER.  EVEN ASSUMING, WHICH WE DO NOT, THAT THE
DEPRIVATION TO AN ACCUSED OF THE ASSISTANCE OF COUNSEL WHEN THAT
COUNSEL HAS BEEN PRIVATELY EMPLOYED COULD EVER BE TERMED "HARMLESS
ERROR," (FN12) IT IS CLEAR THAT SUCH DEPRIVATION WAS NOT HARMLESS UNDER
THE FACTS AS PRESENTED IN THIS CASE.  IN THE FIRST PLACE, PETITIONER
ASKED FOR A CONTINUANCE TO ENABLE HIM TO CONSULT WITH COUNSEL BEFORE HE
ADMITTED THE TRUTH OF THE CHARGE OF PRIOR FELONY CONVICTION.  THUS, IF
PETITIONER HAD BEEN ALLOWED THE ASSISTANCE OF HIS COUNSEL WHEN HE FIRST
ASKED FOR IT, WE CANNOT KNOW THAT COUNSEL COULD NOT HAVE FOUND DEFECTS
IN THE 1934 CONVICTION THAT WOULD HAVE PRECLUDED ITS ADMISSION IN A
MULTIPLE-OFFENDER PROCEEDING.  (FN13) 

SECONDLY, AND PERHAPS EVEN MORE IMPORTANTLY, THE STATE'S CONTENTION
THAT THIS FACTUAL ISSUE WAS THE ONLY ISSUE IN THE PROCEEDING SEEMS TO
CONSTITUTE AN OVERSIMPLIFICATION OF THE MATTER.  FOR, IN ADDITION TO
THE CONSTITUTIONAL ISSUES MENTIONED ABOVE, ABLE COUNSEL APPOINTED TO
REPRESENT PETITIONER IN THIS COURT HAS ALSO POINTED OUT THAT THE
PROCEEDING INVOLVED A DIFFICULT QUESTION OF STATUTORY CONSTRUCTION
UNDER FLORIDA LAW.  COUNSEL HAS POINTED OUT, FOR EXAMPLE, THAT THE
FLORIDA SUPREME COURT HAS NEVER HAD OCCASION TO PASS UPON THE QUESTION
WHETHER THE SECOND-OFFENDER STATUTE MAY BE APPLIED TO REIMPRISON A
PERSON WHO HAS COMPLETELY SATISFIED THE SENTENCE IMPOSED UPON HIS
SECOND CONVICTION AND HAS BEEN DISCHARGED FROM CUSTODY.  IN ONE CASE IN
WHICH THAT QUESTION WAS ARGUED, THE FLORIDA COURT FOUND THAT IT WAS NOT
PROPERLY PRESENTED BY THE FACTS OF THE CASE BEFORE IT AND THEN WENT ON
TO SAY:  "ON THIS QUESTION THERE IS A DIFFERENCE OF OPINION AMONG THE
MEMBERS OF THE COURT BUT, AS IT IS NOT RIPE FOR DETERMINATION UNDER THE
RECORD HERE, NO USEFUL PURPOSE COULD BE SERVED BY DISCUSSING IT." 
(FN14)  MOREOVER, ANOTHER DECISION OF THAT COURT HAS INDICATED THAT THE
STATUTE PERMITTING THE FILING OF AN INFORMATION AGAINST A SECOND
OFFENDER "AT ANY TIME" (FN15) WOULD NOT NECESSARILY BE INTERPRETED SO
MECHANICALLY AS TO ALLOW THE SECOND-OFFENDER STATUTE TO HANG OVER A
DEFENDANT'S HEAD TO THE END OF HIS NATURAL LIFE.  (FN16) 

WE OF COURSE EXPRESS NO OPINION AS TO HOW THIS QUESTION OF STATUTORY
CONSTRUCTION SHOULD EVENTUALLY BE DECIDED BY THE FLORIDA COURTS.  BUT
ITS MERE EXISTENCE DRAMATICALLY ILLUSTRATES THAT EVEN IN THE MOST
ROUTINE-APPEARING PROCEEDINGS THE ASSISTANCE OF ABLE COUNSEL MAY BE OF
INESTIMABLE VALUE.  PLAINLY, SUCH ASSISTANCE MIGHT HAVE BEEN OF GREAT
VALUE TO PETITIONER HERE.  THE ALLEGATIONS OF HIS PETITION FOR HABEAS
CORPUS INDICATED, IF TRUE, THAT HE HAD BEEN DENIED THE ASSISTANCE OF
COUNSEL HE HAD RETAINED.  HE IS ENTITLED TO A HEARING TO ESTABLISH THE
TRUTH OF THOSE ALLEGATIONS.  THE CASE MUST THEREFORE BE AND IS REVERSED
AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  "A PERSON WHO, AFTER HAVING BEEN CONVICTED WITHIN THIS STATE OF
A FELONY OR AN ATTEMPT TO COMMIT A FELONY, OR UNDER THE LAWS OF ANY
OTHER STATE, GOVERNMENT OR COUNTRY, OF A CRIME WHICH, IF COMMITTED
WITHIN THIS STATE WOULD BE A FELONY, COMMITS ANY FELONY WITHIN THIS
STATE IS PUNISHABLE UPON CONVICTION OF SUCH SECOND OFFENSE AS FOLLOWS:
IF THE SUBSEQUENT FELONY IS SUCH THAT UPON A FIRST CONVICTION THE
OFFENDER WOULD BE PUNISHABLE BY IMPRISONMENT FOR ANY TERM LESS THAN HIS
NATURAL LIFE THEN SUCH PERSON MUST BE SENTENCED TO IMPRISONMENT FOR A
TERM NO LESS THAN THE LONGEST TERM NOR MORE THAN TWICE THE LONGEST TERM
PRESCRIBED UPON A FIRST CONVICTION  ...  ."  FLA. STAT., 1957, SEC.
775.09. 

FN2  THE THEORY USED BY THE STATE IN ITS PROCEEDINGS AGAINST
PETITIONER, AS DISCLOSED BY THE QUOTED RECITALS OF THE INFORMATION AND
JUDGMENT, SEEMS TO BE COMPLETELY AT VARIANCE WITH THAT UPON WHICH
MULTIPLE-OFFENDER PROCEEDINGS ARE NORMALLY BASED.  FOR NORMALLY THE
PUNISHMENT PROVIDED FOR IN A MULTIPLE-OFFENDER STATUTE IS VIEWED AS
INCREASED PUNISHMENT FOR THE LAST OFFENSE IN THE SEQUENCE.  HERE, ON
THE OTHER HAND, THE THEORY SEEMS TO HAVE BEEN THAT PETITIONER, BY
VIRTUE OF HIS CONVICTIONS FOR TWO PREVIOUS OFFENSES, HAS COMMITTED A
THIRD AND ENTIRELY SEPARATE OFFENSE - TO QUOTE THE JUDGMENT, "THE
OFFENSE OF SECOND OFFENDER."  BECAUSE OF THE DISPOSITION WE MAKE OF
THIS CASE ON OTHER GROUNDS, HOWEVER, WE NEED NOT REACH THE QUESTIONS
POSED AS TO THE CONSTITUTIONALITY OF CONFINEMENT BASED UPON SUCH A
THEORY.  IN ANY EVENT, PRIOR OPINIONS OF THE SUPREME COURT OF FLORIDA
INDICATE THAT THERE MIGHT BE ROOM FOR CONSIDERABLE DOUBT WHETHER SEC.
775.09 AUTHORIZES CONFINEMENT ON SUCH A THEORY.  SEE CROSS V. STATE, 96
FLA. 768, 119 SO. 380; WASHINGTON V. MAYO, 91 SO. 2D 621. 

FN3  THE SUPREME COURT OF FLORIDA ISSUED NO OPINION, THE CASE BEING
DISPOSED OF WITH THE FOLLOWING ORDER:  "THE ABOVE-NAMED PETITIONER HAS
FILED A PETITION FOR WRIT OF HABEAS CORPUS TO BE ISSUED TO THE
RESPONDENT IN THE ABOVE ENTITLED CAUSE, AND UPON CONSIDERATION THEREOF,
IT IS ORDERED THAT SAID PETITION BE AND THE SAME IS HEREBY DENIED." 

FN4  363 U.S. 801. 

FN5  CASH V. CULVER, 358 U.S. 633, 634; HAWK V. OLSON, 326 U.S. 271,
273. 

FN6  SECTION 775.09, SET FORTH IN N. 1, SUPRA, IS SUPPLEMENTED BY A
PROVISION WHICH, ON ITS FACE AT LEAST, APPEARS TO CONDONE IMPOSITION OF
SECOND-OFFENDER PENALTIES EVEN AT SUCH A LATE DATE:  "IF AT ANY TIME
AFTER SENTENCE OR CONVICTION IT SHALL APPEAR THAT A PERSON CONVICTED OF
A FELONY HAS PREVIOUSLY BEEN CONVICTED OF CRIMES AS SET FORTH EITHER IN
SEC. 775.09 OR SEC. 775.10 THE PROSECUTING ATTORNEY OF THE COUNTY IN
WHICH SUCH CONVICTION WAS HAD, SHALL FILE AN INFORMATION ACCUSING SAID
PERSON OF SUCH PREVIOUS CONVICTIONS, WHEREUPON THE COURT IN WHICH SUCH
CONVICTION WAS HAD SHALL CAUSE SAID PERSON, WHETHER CONFINED IN PRISON
OR OTHERWISE, TO BE BROUGHT BEFORE IT AND SHALL INFORM HIM OF THE
ALLEGATIONS CONTAINED IN SUCH INFORMATION AND OF HIS RIGHT TO BE TRIED
AS TO THE TRUTH THEREOF, ACCORDING TO LAW, AND SHALL REQUIRE SUCH
OFFENDER TO SAY WHETHER HE IS THE SAME PERSON AS CHARGED IN SUCH
INFORMATION OR NOT."  FLA. STAT., 1957, SEC. 775.11.    FN7  THE
PROBLEM PRESENTED BY THESE QUESTIONS IS RATHER DRAMATICALLY STATED BY
PETITIONER HIMSELF IN HIS PETITION FOR HABEAS CORPUS:  "IN THE INSTANT
CASE HOW CAN YOUR PETITIONER KNOW WHEN IN HIS LIFE HE IS NO LONGER
SUBJECT TO HAVE HIS LIBERTY TRANSLATED TO IMPRISONMENT, EVEN AFTER
EXPIRATION OF THE PRESENT SENTENCE, CAN HE AGAIN BE IMPRISONED WITHOUT
COMMITING ANOTHER CRIME AS IN THE INSTANT CASE??  SURELY THIS HONORABLE
COURT WILL NOT CONDONE THIS PRACTICE  ...  ." 

FN8  AS IN CHANDLER V. FRETAG, N. 9, INFRA, THE PETITIONER HERE ALSO
ALLEGED A DENIAL OF DUE PROCESS IN THAT HE WAS NOT GIVEN PRETRIAL
NOTICE OF THE CHARGE AGAINST HIM.  BUT AS IN CHANDLER, WE FIND IT
UNNECESSARY TO PASS UPON THIS CONTENTION.  SEE 348 U.S. 3, 5-6, N. 4. 

FN9  348 U.S. 3. 

FN10  287 U.S. 45, 69. 

FN11  348 U.S., AT 9-10. 

FN12  IT IS SIGNIFICANT THAT IN CHANDLER WE DID NOT REQUIRE ANY
SHOWING THAT THE DEFENDANT THERE WOULD HAVE DERIVED ANY PARTICULAR
BENEFIT FROM THE ASSISTANCE OF COUNSEL. 

FN13  THE PROOF OF PRIOR CONVICTIONS IN A SECOND-OFFENDER PROCEEDING
MAY RAISE DIFFICULT EVIDENTIARY PROBLEMS.  SEE, E.G., SHARGAA V. STATE,
102 SO. 2D 890.  MOREOVER, IT CAN BE PRESUMED THAT IF AN ACCUSED SECOND
OFFENDER WERE ABLE TO MAKE A SUCCESSFUL COLLATERAL ATTACK UPON HIS
FIRST CONVICTION, SEC. 775.09 WOULD NOT BE APPLIED.  CF. FIELDS V.
STATE, 85 SO. 2D 609. 

FN14  MILAN V. STATE, 102 SO. 2D 595, 596. 

FN15  SEE N. 6, SUPRA. 

FN16  IN ARD V. STATE, 91 SO. 2D 166, THE FLORIDA SUPREME COURT HELD
THAT THE SECOND-OFFENDER STATUTE DID NOT APPLY TO A PERSON WHO HAD
CONCEDEDLY COMMITTED TWO FELONIES BUT WHO HAD BEEN ON PROBATION FOR
FIVE YEARS BETWEEN THE DATES OF HIS CONVICTION OF THE SECOND FELONY AND
THE FILING OF THE SECOND-OFFENDER INFORMATION. 
..END :



ROGERS V. RICHMOND 365 U.S. 534 


NO. 40.  ARGUED NOVEMBER 8-9, 1960 - DECIDED MARCH 20, 1961 - 271 F.2D
364, REVERSED. 


AT THE TRIAL IN A STATE COURT IN WHICH PETITIONER WAS CONVICTED OF
MURDER, TWO CONFESSIONS WHICH HE CLAIMED HAD BEEN OBTAINED BY COERCION
WERE ADMITTED IN EVIDENCE OVER HIS OBJECTION.  IN DETERMINING THAT THE
CONFESSIONS WERE "VOLUNTARY," BOTH THE TRIAL COURT AND THE STATE
SUPREME COURT, WHICH AFFIRMED THE CONVICTION, GAVE CONSIDERATION TO THE
QUESTION WHETHER OR NOT THE CONFESSIONS WERE RELIABLE.  PETITIONER
APPLIED TO A FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS CORPUS,
CLAIMING THAT HIS CONVICTION VIOLATED THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  ON THE BASIS OF THE RECORD IN THE STATE TRIAL
COURT AND THAT COURT'S FINDING THAT THE CONFESSIONS WERE "VOLUNTARY,"
THE DISTRICT COURT DENIED THE WRIT AND THE COURT OF APPEALS AFFIRMED. 
HELD:  THE ADMISSIBILITY OF THE CONFESSIONS WAS NOT DETERMINED IN
ACCORDANCE WITH STANDARDS SATISFYING THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT; THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED
TO THE COURT OF APPEALS TO BE HELD IN ORDER TO GIVE THE STATE AN
OPPORTUNITY TO RETRY PETITIONER, IN THE LIGHT OF THIS OPINION, WITHIN A
REASONABLE TIME.  IN DEFAULT THEREOF, PETITIONER IS TO BE DISCHARGED. 
PP. 534-549. 

ROGERS V. RICHMOND, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE HAS A LONG HISTORY.  IT MUST BE TOLD WITH SOME
PARTICULARITY IN ORDER TO UNRAVEL ISSUES ENSNARLED IN PROTRACTED
LITIGATION IN BOTH STATE AND FEDERAL COURTS, TURNING ESSENTIALLY ON THE
ADMISSIBILITY OF CONFESSIONS. 

THE TRIAL.  - PETITIONER WAS FOUND GUILTY OF MURDER BY A JURY IN THE
SUPERIOR COURT, NEW HAVEN COUNTY, CONNECTICUT.  THE UNDISPUTED EVIDENCE
LEADING TO THE CONVICTION MAY BE BRIEFLY TOLD.  ON JANUARY 9, 1954, NEW
HAVEN, CONNECTICUT, POLICE ARRESTED PETITIONER ON CHARGES OF COMMITTING
ATTEMPTED ROBBERY AND OTHER CRIMES ON THAT DAY AT A LOCAL HOTEL.  AT
THE TIME OF HIS ARREST PETITIONER HAD IN HIS POSSESSION A REVOLVER. 
SUBSEQUENT BALLISTIC TESTS TENDED TO SHOW THAT THIS WEAPON, WHICH HAD
BEEN REPORTED STOLEN FROM THE HOME OF PETITIONER'S NEPHEW, WAS USED IN
A FATAL SHOOTING DURING A LIQUOR STORE ROBBERY IN WEST HAVEN,
CONNECTICUT, ON NOVEMBER 21, 1953, THE SAME DAY ITS DISAPPEARANCE WAS
DISCOVERED. 

PETITIONER WAS LODGED IN THE NEW HAVEN COUNTY JAIL PENDING TRIAL ON
THE CHARGES THAT PROMPTED HIS ARREST.  ON JANUARY 30, 1954, HE WAS
TRANSPORTED WITHOUT COURT ORDER FROM THE JAIL TO THE OFFICE OF THE
STATE'S ATTORNEY FOR QUESTIONING IN CONNECTION WITH THE WEST HAVEN
KILLING.  THE INTERROGATION COMMENCED AT APPROXIMATELY 2 P.M. OF THAT
DAY AND CONTINUED THOUGHOUT THE AFTERNOON AND EVENING.  DURING THE
INTERROGATION PETITIONER WAS ALLOWED TO SMOKE, WAS BROUGHT A SANDWICH
AND COFFEE, AND WAS AT NO TIME SUBJECTED TO VIOLENCE OR THREAT OF
VIOLENCE. 

AFTER PETITIONER HAD BEEN INTERMITTENTLY QUESTIONED WITHOUT SUCCESS
BY A TEAM OF AT LEAST THREE POLICE OFFICERS FROM 2 P.M. TO 8 P.M., NEW
HAVEN ASSISTANT CHIEF OF POLICE EAGAN WAS CALLED IN TO CONDUCT THE
INVESTIGATION.  WHEN PETITIONER PERSISTED IN HIS DENIAL THAT HE HAD
DONE THE SHOOTING, CHIEF EAGAN PRETENDED, IN PETITIONER'S HEARING, TO
PLACE A TELEPHONE CALL TO POLICE OFFICERS, DIRECTING THEM TO STAND IN
READINESS TO BRING IN PETITIONER'S WIFE FOR QUESTIONING.  AFTER THE
PASSAGE OF APPROXIMATELY ONE HOUR, DURING WHICH PETITIONER REMAINED
SILENT, CHIEF EAGAN INDICATED THAT HE WAS ABOUT TO HAVE PETITIONER'S
WIFE TAKEN INTO CUSTODY.  AT THIS POINT PETITIONER ANNOUNCED HIS
WILLINGNESS TO CONFESS AND DID CONFESS IN A STATEMENT WHICH WAS TAKEN
DOWN IN SHORTHAND BY AN OFFICIAL COURT REPORTER. 

THE FOLLOWING MORNING THE CORONER OF NEW HAVEN COUNTY ISSUED AN ORDER
THAT PETITIONER BE HELD INCOMMUNICADO AT THE JAIL.  WHEN A LAWYER
ASSOCIATED WITH COUNSEL WHOM PETITIONER HAD PREVIOUSLY RETAINED TO
DEFEND HIM ON THE ATTEMPTED ROBBERY CHARGE CALLED AT THE JAIL TO SEE
PETITIONER, HE WAS TURNED AWAY ON THE AUTHORITY OF THE CORONER'S
ORDER.  PETITIONER WAS THEN TRANSPORTED TO THE COUNTY COURT HOUSE FOR
INTERROGATION BY THE CORONER, WHO HAD BEEN INFORMED OF HIS CONFESSION
OF THE PREVIOUS NIGHT.  THERE HE WAS PUT ON OATH TO TELL THE TRUTH BUT
WARNED THAT HE MIGHT REFUSE TO SAY ANYTHING FURTHER AND ADVISED THAT HE
MIGHT OBTAIN THE ASSISTANCE OF COUNSEL.  PETITIONER AGAIN CONFESSED TO
THE SHOOTING IN A STATEMENT RECORDED BY THE SAME OFFICIAL COURT
REPORTER. 

PETITIONER'S DEFENSE AT THE TRIAL WAS DIRECTED TOWARD DISCREDITING
THE CONFESSIONS AS THE PRODUCT OF COERCION.  IN ACCORDANCE WITH
CONNECTICUT PRACTICE, SEE, E.G., STATE V. WILLIS, 71 CONN. 293, 41 A.
820; STATE V. GUASTAMACHIO, 137 CONN. 179, 75 A.2D 429, THE TRIAL JUDGE
HEARD THE EVIDENCE BEARING ON ADMISSIBILITY OF THE CONFESSIONS WITHOUT
THE JURY PRESENT.  AT THIS HEARING PETITIONER TESTIFIED THAT SHORTLY
AFTER THE COMMENCEMENT OF THE INTERROGATION HE ASKED TO SEE A LAWYER
BUT WAS NEVER PERMITTED TO DO SO.  HE ALSO TESTIFIED, WITH REFERENCE TO
CHIEF EAGAN'S PRETENSE OF BRING PETITIONER'S WIFE IN FOR QUESTIONING,
THAT THIS MOVE TOOK THE FORM OF A THREAT TO DO SO UNLESS HE CONFESSED
AND THAT IN MAKING THIS THREAT CHIEF EAGAN TOLD HIM THAT HE WOULD BE
"LESS THAN A MAN" IF HE FAILED TO CONFESS AND THEREBY CAUSED HER TO BE
TAKEN INTO CUSTODY.  ACCORDING TO PETITIONER HIS WIFE SUFFERED FROM
ARTHRITIS, AND HE CONFESSED TO SPARE HER BEING TRANSPORTED TO THE SCENE
OF THE INTERROGATION. 

THE STATE MET PETITIONER'S ACCOUNT WITH THE TESTIMONY OF CHIEF
EAGAN.  HE TESTIFIED THAT PETITIONER MADE NO REQUEST TO SEE A LAWYER
DURING HIS PRESENCE IN THE ROOM.  HOWEVER, IT WILL BE RECALLED THAT
CHIEF EAGAN DID NOT ARRIVE UNTIL THE QUESTIONING HAD RUN A COURSE OF
SIX HOURS AND THAT PETITIONER CLAIMED TO HAVE REQUESTED COUNSEL DURING
THAT PERIOD.  CHIEF EAGAN ALSO DENIED THAT HE HAD FRAMED HIS REMARKS
ABOUT BRINGING PETITIONER'S WIFE IN FOR QUESTIONING AS A THREAT OR THAT
HE HAD SUGGESTED THAT PETITIONER WOULD BE "LESS THAN A MAN," ETC. 

ON THE BASIS OF THE EVIDENCE SUMMARIZED, THE TRIAL JUDGE CONCLUDED
THAT THE CONFESSIONS WERE VOLUNTARY AND ALLOWED THEM TO GO TO THE JURY
FOR CONSIDERATION OF THE WEIGHT TO BE GIVEN THEM UNDER ALL THE
CIRCUMSTANCES THAT LED TO THEM.  CONVICTION OF PETITIONER FOR MURDER
FOLLOWED. 

REVIEW BY THE CONNECTICUT SUPREME COURT.  - ON APPEAL, THE SUPREME
COURT OF ERRORS OF CONNECTICUT, FINDING NO ERROR IN THE TRIAL JUDGE'S
ADMISSION OF THE CONFESSIONS, AFFIRMED THE CONVICTION, STATE V. ROGERS,
143 CONN. 167, 120 A.2D 409. 

FIRST FEDERAL HABEAS CORPUS PROCEEDING.  - IN AUGUST OF 1956, AFTER
SATISFYING THE RULE OF DARR V. BURFORD, 339 U.S. 200, PETITIONER SOUGHT
A FEDERAL WRIT OF HABEAS CORPUS, BASICALLY ON THE GROUND THAT SINCE THE
CONFESSIONS WERE SECURED UNDER CIRCUMSTANCES RENDERING THEM
CONSTITUTIONALLY INADMISSIBLE, HE WAS DENIED DUE PROCESS OF LAW UNDER
THE FOURTEENTH AMENDMENT.  THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT HELD A HEARING BASED ON THE EVIDENCE OFFERED BY
THE PARTIES.  THIS EVIDENCE INCLUDED EXCERPTS FROM THE RECORD OF THE
STATE PROCEEDINGS AS WELL AS TESTIMONY OF PETITIONER AND VARIOUS STATE
OFFICIALS.  NEITHER PETITIONER NOR RESPONDENT SUBMITTED THE ENTIRE
TRANSCRIPT OF THE STATE PROCEEDINGS AND THE DISTRICT JUDGE DID NOT CALL
FOR IT. PETITIONER AGAIN TESTIFIED THAT BEFORE HE CONFESSED HE HAD
REQUESTED AN OPPORTUNITY TO CONFER WITH HIS LAWYER.  HIS TESTIMONY WAS
FLATLY CONTRADICTED BY THREE POLICE OFFICERS CALLED BY THE STATE'S
ATTORNEY, NONE OF WHOM HAD TESTIFIED AT THE TRIAL. 

ON THE TESTIMONY BEFORE HIM, THE DISTRICT JUDGE MADE FINDINGS WHICH
DIFFERED FROM THOSE OF THE STATE TRIAL JUDGE IN SEVERAL IMPORTANT
RESPECTS.  HE ACCEPTED PETITIONER'S TESTIMONY THAT DURING THE POLICE
INTERROGATION HE HAD ASKED TO SEE HIS LAWYER BEFORE HE YIELDED TO CHIEF
EAGAN'S EFFORTS TO HAVE HIM CONFESS.  HE ALSO FOUND THAT THE CONFESSION
BEFORE THE CORONER WAS THE PRODUCT OF FEAR THAT REPUDIATION OF THE
EARLIER CONFESSION WOULD LEAD THE POLICE TO TAKE HIS WIFE AND FOSTER
CHILDREN INTO CUSTODY.  ACCORDINGLY, HE CONCLUDED THAT "THE CONFESSIONS
WERE THE RESULT OF PRESSURE OVERCOMING ROGERS' POWERS OF RESISTANCE AND
WERE NOT VOLUNTARY ON HIS PART."  UNITED STATES EX REL. ROGERS V.
CUMMINGS, 154 F. SUPP. 663, 665.  HE THEREFORE SET ASIDE THE JUDGMENT
OF CONVICTION. 

FIRST COURT OF APPEALS REVIEW.  - ON APPEAL, THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT VACATED THE DISTRICT COURT'S
JUDGMENT, FINDING THAT IT WAS ERROR TO HOLD A HEARING DE NOVO ON ISSUES
OF BASIC EVIDENTIARY FACT THAT HAD BEEN CONSIDERED AND ADJUDICATED BY
THE STATE COURTS.  RELYING ON BROWN V. ALLEN, 344 U.S. 443, THE COURT
OF APPEALS CONCLUDED THAT THE DISTRICT JUDGE SHOULD HAVE CALLED FOR THE
ENTIRE STATE RECORD BEFORE REACHING HIS DECISION.  IT HELD: 

"THAT IN THE CASE NOW BEFORE US THE NATURE OF THE ISSUES PRESENTED
AND PROPER REGARD FOR THE DELICATE BALANCE OF FEDERAL-STATE
RELATIONSHIPS REQUIRED THE DISTRICT JUDGE TO OBTAIN AND EXAMINE THE
STATE PROCEEDINGS  ...  .  ONLY ON AN ADEQUATE STATE RECORD CAN THE
DISTRICT COURT DETERMINE IF A VITAL FLAW EXISTS WHICH WARRANTS
CORRECTION BY EXTRINSIC EVIDENCE."  UNITED STATES EX REL. ROGERS V.
RICHMOND, 252 F.2D 807, 810, 811. 

THE COURT OF APPEALS REMANDED THE CASE TO THE DISTRICT COURT WITH THE
FOLLOWING INSTRUCTIONS: 

"UNLESS THE JUDGE BELOW SHALL FIND IN THE RECORD THUS BEFORE HIM
MATERIAL WHICH HE DEEMS TO CONSTITUTE 'VITAL FLAWS' AND 'UNUSUAL
CIRCUMSTANCES' WITHIN THE MEANING OF BROWN V. ALLEN, WE HOLD THAT HE
SHOULD MAKE THE NECESSARY CONSTITUTIONAL DETERMINATIONS EXCLUSIVELY ON
THE BASIS OF THE HISTORICAL FACTS AS FOUND BY THE STATE TRIAL COURT." 
252 F.2D, AT 811. 

CERTIORARI PROCEEDING.  - THE PETITIONER SOUGHT CERTIORARI HERE AND
WE DENIED THE PETITION WITH THIS PER CURIAM OPINION: 

"THE PETITION FOR WRIT OF CERTIORARI IS DENIED.  WE READ THE OPINION
OF THE COURT OF APPEALS AS HOLDING THAT WHILE THE DISTRICT JUDGE MAY,
UNLESS HE FINDS A VITAL FLAW IN THE STATE COURT PROCEEDINGS, ACCEPT THE
DETERMINATION IN SUCH PROCEEDINGS, HE NEED NOT DEEM SUCH DETERMINATION
BINDING, AND MAY TAKE TESTIMONY.  SEE BROWN V. ALLEN, 344 U.S. 443,
506, ET SEQ."  ROGERS V. RICHMOND, 357 U.S. 220. 

SECOND FEDERAL HABEAS CORPUS PROCEEDING.  - ON REMAND, THE DISTRICT
JUDGE HAD BEFORE HIM THE ENTIRE TRANSCRIPT OF THE STATE PROCEEDINGS AND
ON THE BASIS OF IT DISMISSED THE PETITION.  UNITED STATES EX REL.
ROGERS V. RICHMOND, 178 F. SUPP. 69.  WHILE HE ADHERED TO HIS BELIEF IN
PETITIONER'S TESTIMONY IN THE FIRST HABEAS CORPUS HEARING, HE NOW
CONSIDERED HIMSELF OBLIGED TO ACCEPT THE STATE COURT'S "FINDINGS,"
RATHER THAN HIS OWN, ON ALL POINTS OF HISTORICAL FACT "UNLESS SOME
VITAL FLAW OR UNUSUAL CIRCUMSTANCE EXISTS OR SOME OTHER BASIS APPEARS
FOR CONSIDERATION OF TESTIMONY OUTSIDE THE RECORD."  178 F. SUPP., AT
71-72.  THE DISTRICT JUDGE FOUND NO SUCH "FLAW" OR "CIRCUMSTANCE" TO
PERMIT RETRIAL OF THE ISSUE OF THE VOLUNTARINESS OF THE CONFESSIONS. 
HE THUS STATED HIS POSITION: 

"THE ISSUE OF WHETHER REQUEST FOR COUNSEL WAS MADE AND THE ISSUE OF
VOLUNTARY CHARACTER OF THE CONFESSIONS WERE FULLY AND CONSCIENTIOUSLY
TRIED BY AN EXPERIENCED JUDGE.  SUBSEQUENT DISAGREEMENT WITH HIS
WEIGHING OF ESSENTIALLY SIMILAR EVIDENCE IS NOT IN ITSELF SUFFICIENT
UNDER THE LIMITATIONS NOW IMPOSED IN THE INTEREST OF PROPER BALANCE IN
OUR DUAL COURT SYSTEM, TO PERMIT CONSIDERATION OF THE MATTER HEARD AT
THE TRIAL OF THE ISSUE DE NOVO HERE."  178 F. SUPP., AT 73. 

ON THIS BASIS THE DISTRICT JUDGE COULD NOT FIND THAT THE CONFESSIONS
WERE THE PRODUCT OF COERCION. 

SECOND COURT OF APPEALS REVIEW.  - THE COURT OF APPEALS FOR THE
SECOND CIRCUIT AFFIRMED THIS JUDGMENT, ONE JUDGE DISSENTING.  UNITED
STATES EX REL. ROGERS V. RICHMOND, 271 F.2D 364.  THE COURT HELD THAT
THE DISTRICT JUDGE WAS CORRECT IN RESTRICTING HIMSELF TO THE STATE
COURT'S "FINDINGS" REGARDING PETITIONER'S REQUEST TO SEE HIS LAWYER
BEFORE CONFESSING, AND AGREED WITH HIM THAT THE FACTS IN THE RECORD DID
NOT JUSTIFY THE CONCLUSION THAT PETITIONER'S CONFESSIONS WERE NOT
VOLUNTARY. 

BECAUSE ISSUES CONCERNING THE APPROPRIATE PROCEDURE FOR DEALING WITH
PETITIONS FOR FEDERAL HABEAS CORPUS IN RELATION TO STATE CONVICTIONS
WERE URGED, WE BROUGHT THE CASE HERE.  361 U.S. 959. 

A CRITICAL ANALYSIS OF THE CONNECTICUT PROCEEDINGS LEADS TO
DISPOSITION OF THE CASE ON A MORE IMMEDIATE ISSUE.  FOR IT COMPELS THE
CONCLUSION THAT THE TRIAL JUDGE IN ADMITTING THE CONFESSIONS AS
"VOLUNTARY," AND THE SUPREME COURT OF ERRORS IN AFFIRMING THE
CONVICTION INTO WHICH THE CONFESSIONS ENTERED, FAILED TO APPLY THE
STANDARD DEMANDED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
FOR DETERMINING THE ADMISSIBILITY OF A CONFESSION. 

OUR DECISIONS UNDER THAT AMENDMENT HAVE MADE CLEAR THAT CONVICTIONS
FOLLOWING THE ADMISSION INTO EVIDENCE OF CONFESSIONS WHICH ARE
INVOLUNTARY, I.E., THE PRODUCT OF COERCION, EITHER PHYSICAL OR
PSYCHOLOGICAL, CANNOT STAND.  THIS IS SO NOT BECAUSE SUCH CONFESSIONS
ARE UNLIKELY TO BE TRUE BUT BECAUSE THE METHODS USED TO EXTRACT THEM
OFFEND AN UNDERLYING PRINCIPLE IN THE ENFORCEMENT OF OUR CRIMINAL LAW:
THAT OURS IS AN ACCUSATORIAL AND NOT AN INQUISITORIAL SYSTEM - A SYSTEM
IN WHICH THE STATE MUST ESTABLISH GUILT BY EVIDENCE INDEPENDENTLY AND
FREELY SECURED AND MAY NOT BY COERCION PROVE ITS CHARGE AGAINST AN
ACCUSED OUT OF HIS OWN MOUTH.  SEE CHAMBERS V. FLORIDA, 309 U.S. 227;
LISENBA V. CALIFORNIA, 314 U.S. 219, 236; ROCHIN V. CALIFORNIA, 342
U.S. 165, 172-174; SPANO V. NEW YORK, 360 U.S. 315, 320-321; BLACKBURN
V. ALABAMA, 361 U.S. 199, 206-207.  AND SEE WATTS V. INDIANA, 338 U.S.
49, 54-55.  TO BE SURE, CONFESSIONS CRUELLY EXTORTED MAY BE AND HAVE
BEEN, TO AN UNASCERTAINED EXTENT, FOUND TO BE UNTRUSTWORTHY.  BUT THE
CONSTITUTIONAL PRINCIPLE OF EXCLUDING CONFESSIONS THAT ARE NOT
VOLUNTARY DOES NOT REST ON THIS CONSIDERATION.  INDEED, IN MANY OF THE
CASES IN WHICH THE COMMAND OF THE DUE PROCESS CLAUSE HAS COMPELLED US
TO REVERSE STATE CONVICTIONS INVOLVING THE USE OF CONFESSIONS OBTAINED
BY IMPERMISSIBLE METHODS, INDEPENDENT CORROBORATING EVIDENCE LEFT
LITTLE DOUBT OF THE TRUTH OF WHAT THE DEFENDANT HAD CONFESSED.  DESPITE
SUCH VERIFICATION, CONFESSIONS WERE FOUND TO BE THE PRODUCT OF
CONSTITUTIONALLY IMPERMISSIBLE METHODS IN THEIR INDUCEMENT.  SINCE A
DEFENDANT HAD BEEN SUBJECTED TO PRESSURES TO WHICH, UNDER OUR
ACCUSATORIAL SYSTEM, AN ACCUSED SHOULD NOT BE SUBJECTED, WE WERE
CONSTRAINED TO FIND THAT THE PROCEDURES LEADING TO HIS CONVICTION HAD
FAILED TO AFFORD HIM THAT DUE PROCESS OF LAW WHICH THE FOURTEENTH
AMENDMENT GUARANTEES.    IN THE PRESENT CASE, WHILE THE TRIAL JUDGE
RULED THAT EACH OF PETITIONER'S CONFESSIONS WAS "FREELY AND VOLUNTARILY
MADE AND ACCORDINGLY WAS ADMISSIBLE IN EVIDENCE," HE REACHED THAT
CONCLUSION ON THE BASIS OF CONSIDERATIONS THAT UNDERMINE ITS VALIDITY. 
HE FOUND THAT THE PRETENSE OF BRINGING PETITIONER'S WIFE IN FOR
QUESTIONING "HAD NO TENDENCY TO PRODUCE A CONFESSION THAT WAS NOT IN
ACCORD WITH THE TRUTH."  AGAIN, IN HIS CHARGE TO THE JURY, HE THUS
ENUNCIATED THE REASONING WHICH HAD GUIDED HIM IN ADMITTING THE
CONFESSIONS FOR CONSIDERATION: 

"NO CONFESSION OR ADMISSION OF AN ACCUSED IS ADMISSIBLE IN EVIDENCE
UNLESS MADE FREELY AND VOLUNTARILY AND NOT UNDER THE INFLUENCE OF
PROMISES OR THREATS.  THE FACT THAT A CONFESSION WAS PROCURED BY THE
EMPLOYMENT OF SOME ARTIFICE OR DECEPTION DOES NOT EXCLUDE THE
CONFESSION IF IT WAS NOT CALCULATED, THAT IS TO SAY, IF THE ARTIFICE OR
DECEPTION WAS NOT CALCULATED TO PROCURE AN UNTRUE STATEMENT.  THE
MOTIVE OF A PERSON IN CONFESSING IS OF NO IMPORTANCE PROVIDED THE
PARTICULAR CONFESSION DOES NOT RESULT FROM THREATS, FEAR OR PROMISES
MADE BY PERSONS IN ACTUAL OR SEEMING AUTHORITY.  THE OBJECT OF EVIDENCE
IS TO GET AT THE TRUTH, AND A TRICK OR DEVICE WHICH HAS NO TENDENCY TO
PRODUCE A CONFESSION EXCEPT ONE IN ACCORDANCE WITH THE TRUTH DOES NOT
RENDER THE CONFESSION INADMISSIBLE  ...  .  THE RULES WHICH SURROUND
THE USE OF A CONFESSION ARE DESIGNED AND PUT INTO OPERATION BECAUSE OF
THE DESIRE EXPRESSED IN THE LAW THAT THE CONFESSION, IF USED, BE
PROBABLY A TRUE CONFESSION." 

THE SAME VIEW - THAT THE PROBABLE RELIABILITY OF A CONFESSION IS A
CIRCUMSTANCE OF WEIGHT IN DETERMINING ITS VOLUNTARINESS - ENTERED THE
OPINION OF THE SUPREME COURT OF ERRORS OF CONNECTICUT IN SUSTAINING THE
TRIAL JUDGE'S ADMISSION OF THE CONFESSION: 

"IF WE CONCEDE THAT THIS (PETITIONER'S CLAIMS OF ILLEGAL REMOVAL FROM
JAIL AND INCOMMUNICADO DETENTION) WAS ALL TRUE AND THAT SUCH CONDUCT
WAS UNLAWFUL, IT DOES NOT, STANDING ALONE, RENDER THE DEFENDANT'S
CONFESSIONS INADMISSIBLE.  THE QUESTION IS WHETHER, UNDER THESE AND
OTHER CIRCUMSTANCES OF THE CASE, THAT CONDUCT INDUCED THE DEFENDANT TO
CONFESS FALSELY THAT HE HAD COMMITTED THE CRIME BEING INVESTIGATED. 
UNLESS IT DID, IT CANNOT BE SAID THAT ITS ILLEGALITY VITIATED HIS
CONFESSIONS."   143 CONN., AT 173; 120 A.2D, AT 412. 

AND AGAIN: 

"PROPER COURT AUTHORIZATION SHOULD HAVE BEEN SECURED BEFORE THE
DEFENDANT WAS REMOVED FROM THE JAIL.  THERE IS NOTHING ABOUT HIS
ILLEGAL REMOVAL, HOWEVER, TO DEMONSTRATE THAT HE WAS THEREBY FORCED TO
MAKE AN UNTRUE STATEMENT.  THE SAME CAN BE SAID CONCERNING THE REFUSAL
TO ADMIT COUNSEL TO SEE THE DEFENDANT ON THE MORNING OF JANUARY 31
BEFORE HE WAS BROUGHT BEFORE THE CORONER."  143 CONN., AT 173-174; 120
A.2D, AT 412. 

CONCERNING THE FEIGNED PHONE CALL THAT PETITIONER'S WIFE BE BROUGHT
IN TO HEADQUARTERS, THE SUPREME COURT CONCLUDED: 

"HERE AGAIN, THE QUESTION FOR THE COURT TO DECIDE WAS WHETHER THIS
CONDUCT INDUCED THE DEFENDANT TO MAKE AN INVOLUNTARY AND HENCE UNTRUE
STATEMENT."  143 CONN., AT 174; 120 A.2D, AT 412. 

FROM A FAIR READING OF THESE EXPRESSIONS, WE CANNOT BUT CONCLUDE THAT
THE QUESTION WHETHER ROGERS' CONFESSIONS WERE ADMISSIBLE INTO EVIDENCE
WAS ANSWERED BY REFERENCE TO A LEGAL STANDARD WHICH TOOK INTO ACCOUNT
THE CIRCUMSTANCE OF PROBABLE TRUTH OR FALSITY.  (FN1)  AND THIS IS NOT
A PERMISSIBLE STANDARD UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE ATTENTION OF THE TRIAL JUDGE SHOULD HAVE BEEN FOCUSED,
FOR PURPOSES OF THE FEDERAL CONSTITUTION, ON THE QUESTION WHETHER THE
BEHAVIOR OF THE STATE'S LAW ENFORCEMENT OFFICIALS WAS SUCH AS TO
OVERBEAR PETITIONER'S WILL TO RESIST AND BRING ABOUT CONFESSIONS NOT
FREELY SELF-DETERMINED - A QUESTION TO BE ANSWERED WITH COMPLETE
DISREGARD OF WHETHER OR NOT PETITIONER IN FACT SPOKE THE TRUTH.  THE
EMPLOYMENT INSTEAD, BY THE TRIAL JUDGE AND THE SUPREME COURT OF ERRORS,
OF A STANDARD INFECTED BY THE INCLUSION OF REFERENCES TO PROBABLE
RELIABILITY RESULTED IN A CONSTITUTIONALLY INVALID CONVICTION, PURSUANT
TO WHICH ROGERS IS NOW DETAINED "IN VIOLATION OF THE CONSTITUTION." 
(FN2)  A DEFENDANT HAS THE RIGHT TO BE TRIED ACCORDING TO THE
SUBSTANTIVE AND PROCEDURAL DUE PROCESS REQUIREMENTS OF THE FOURTEENTH
AMENDMENT.  THIS MEANS THAT A VITAL CONFESSION, SUCH AS IS INVOLVED IN
THIS CASE, MAY GO TO THE JURY ONLY IF IT IS SUBJECTED TO SCREENING IN
ACCORDANCE WITH CORRECT CONSTITUTIONAL STANDARDS.  TO THE EXTENT THAT
IN THE TRIAL OF ROGERS EVIDENCE WAS ALLOWED TO GO TO THE JURY ON THE
BASIS OF STANDARDS THAT DEPARTED FROM CONSTITUTIONAL REQUIREMENTS, TO
THAT EXTENT HE WAS UNCONSTITUTIONALLY TRIED AND THE CONVICTION WAS
VITIATED BY ERROR OF CONSTITUTIONAL DIMENSION.  (FN3) 

IT IS NOT FOR THIS COURT, ANY MORE THAN FOR A FEDERAL DISTRICT COURT,
IN HABEAS CORPUS PROCEEDINGS, TO MAKE AN INDEPENDENT APPRAISAL OF THE
LEGAL SIGNIFICANCE OF FACTS GLEANED FROM THE RECORD AFTER SUCH A
CONVICTION.  WE ARE BARRED FROM SPECULATING - IT WOULD BE AN IRRATIONAL
PROCESS - ABOUT THE WEIGHT ATTRIBUTED TO THE IMPERMISSIBLE
CONSIDERATION OF TRUTH AND FALSITY WHICH, ENTERING INTO THE CONNECTICUT
TRIAL COURT'S DELIBERATIONS CONCERNING THE ADMISSIBILITY OF THE
CONFESSIONS, MAY WELL HAVE DISTORTED, BY PUTTING IN IMPROPER
PERSPECTIVE, EVEN ITS FINDINGS OF HISTORICAL FACT.  ANY CONSIDERATION
OF THIS "RELIABILITY" ELEMENT WAS CONSTITUTIONALLY PRECLUDED, PRECISELY
BECAUSE THE FORCE WHICH IT CARRIED WITH THE TRIAL JUDGE CANNOT BE
KNOWN. 

AS A MATTER OF ABSTRACT LOGIC IT IS ARGUABLE THAT ROGERS MAY NOT HAVE
BEEN DEPRIVED OF A CONSTITUTIONAL RIGHT, NOR HELD IN CUSTODY IN
VIOLATION OF THE CONSTITUTION, WITHIN 28 U.S.C. SEC. 2241(C)(3), SOLELY
BECAUSE THE CONNECTICUT TRIAL COURT APPLIED AN IMPERMISSIBLE
CONSTITUTIONAL STANDARD IN ADMITTING HIS CONFESSION - THAT ROGERS WAS
NOT SO DEPRIVED, OR SO HELD, UNLESS "IN FACT" HIS CONFESSION WAS
COERCED, A "FACT" TO BE ASCERTAINED FROM THE STATE RECORD ON DIRECT
REVIEW HERE, OR DE NOVO BY A FEDERAL DISTRICT JUDGE IN HABEAS CORPUS
PROCEEDINGS.  SUCH A VIEW IGNORES BOTH THE VOLATILE AND AMORPHOUS
CHARACTER OF "FACT" AS FACT IS FOUND BY COURTS, AND THE DISTRIBUTIVE
FUNCTIONS OF THE DUAL JUDICIAL SYSTEM IN OUR FEDERALISM FOR THE FINDING
OF FACT AND THE APPLICATION OF LAW TO FACT.  IN COERCED CONFESSION
CASES COMING DIRECTLY TO THIS COURT FROM THE HIGHEST COURT OF A STATE
IN WHICH REVIEW MAY BE HAD, WE LOOK FOR "FACT" TO THE UNDISPUTED, THE
UNCONTESTED EVIDENCE OF RECORD.  SEE WATTS V. INDIANA, 338 U.S. 49, 50
52.  THIS IS ALL THAT WE MAY LOOK TO, IN THE ABSENCE OF DETAILED STATE
COURT FINDINGS OF HISTORICAL FACT, BECAUSE THIS COURT CANNOT SIT AS A
TRIAL TRIBUNAL TO HEAR AND ASSESS THE CREDIBILITY OF WITNESSES.  OF
COURSE, SO-CALLED FACTS AND THEIR CONSTITUTIONAL SIGNIFICANCE MAY BE SO
BLENDED THAT THEY CANNOT BE SEVERED IN CONSIDERATION.  AND IN ANY
EVENT, THERE MUST BE A FOUNDATION IN FACT FOR THE LEGAL RESULT.  SEE
THOMPSON V. LOUISVILLE, 362 U.S. 199.  WITH DUE REGARD TO THESE
CONSIDERATIONS, IT WOULD BE MANIFESTLY UNFAIR, AND AFFORD NIGGARDLY
PROTECTION FOR FEDERAL CONSTITUTIONAL RIGHTS, WERE WE TO SUSTAIN A
STATE CONVICTION IN WHICH THE TRIAL JUDGE OR TRIAL JURY - WHICHEVER IS
CHARGED BY STATE LAW WITH THE DUTY OF FINDING FACT PERTINENT TO A CLAIM
OF COERCION - PASSES UPON THAT CLAIM UNDER AN ERRONEOUS STANDARD OF
CONSTITUTIONAL LAW.  (FN4)  IN SUCH A CASE, TO LOOK TO THE WHOLLY
UNDISPUTED EVIDENCE, IN THE EVENT CONFLICTING EVIDENCE IS PRESENTED,
WOULD DEPRIVE THE STATE CRIMINAL DEFENDANT OF THE BENEFIT OF WHATEVER
CREDIT HIS TESTIMONY MIGHT HAVE BEEN GIVEN BY THE STATE JUDGE OR THE
STATE JURY, HAD THE JUDGE OR JURY EMPLOYED A PROPER LEGAL STANDARD. 
NOR, IN A CASE WHERE SPECIFIC FINDINGS ARE MADE CONCERNING THE
ALLEGEDLY COERCIVE CIRCUMSTANCES, CAN THOSE FINDINGS BE FAIRLY LOOKED
TO FOR THE "FACTS," SINCE FINDINGS OF FACT MAY OFTEN BE (TO WHAT
EXTENT, IN A PARTICULAR CASE, CANNOT BE KNOWN) INFLUENCED BY WHAT THE
FINDER IS LOOKING FOR.  HISTORICAL FACTS "FOUND" IN THE PERSPECTIVE
FRAMED BY AN ERRONEOUS LEGAL STANDARD CANNOT PLAUSIBLY BE EXPECTED TO
FURNISH THE BASIS FOR CORRECT CONCLUSIONS IF AND MERELY BECAUSE A
CORRECT STANDARD IS LATER APPLIED TO THEM. 

OF COURSE, WHERE THE ISSUE OF COERCION IS RAISED NOT ON DIRECT REVIEW
IN THIS COURT BUT BY PETITION FOR HABEAS CORPUS IN A FEDERAL DISTRICT
COURT, ONE ALTERNATIVE METHOD OF PROCEEDING IMPOSSIBLE ON DIRECT REVIEW
IS AVAILABLE.  THE DISTRICT COURT MIGHT CONCEIVABLY HOLD A HEARING DE
NOVO ON THE ISSUE OF COERCION.  BUT SUCH A PROCEDURE WOULD NEITHER
ADEQUATELY PROTECT THE FEDERAL RIGHTS OF STATE CRIMINAL DEFENDANTS NOR
DULY TAKE ACCOUNT OF THE LARGE LEEWAY WHICH MUST BE LEFT TO THE STATES
IN THEIR ADMINISTRATION OF THEIR OWN CRIMINAL JUSTICE.  A STATE
DEFENDANT SHOULD HAVE THE OPPORTUNITY TO HAVE ALL ISSUES WHICH MAY BE
DETERMINATIVE OF HIS GUILT TRIED BY A STATE JUDGE OR A STATE JURY UNDER
APPROPRIATE STATE PROCEDURES WHICH CONFORM TO THE REQUIREMENTS OF THE
FOURTEENTH AMENDMENT.  WHERE HE HAS NOT HAD THAT OPPORTUNITY HE SHOULD
NOT BE REQUIRED TO ESTABLISH IN A FEDERAL DISTRICT COURT, BEFORE A
FEDERAL DISTRICT JUDGE WHO MUST CONSIDER THE ISSUE OF THE VOLUNTARINESS
OF THE CONFESSION IN A CERTAIN ABSTRACTION FROM THE WHOLE, LIVING
COMPLEX OF A CRIMINAL TRIAL, AND PERHAPS MANY YEARS AFTER THE
OCCURRENCE OF THE EVENTS SURROUNDING THE CONFESSION, FACTS ESTABLISHING
COERCION.  ON THE OTHER HAND, THE STATE, TOO, HAS A WEIGHTY INTEREST IN
HAVING VALID FEDERAL CONSTITUTIONAL CRITERIA APPLIED IN THE
ADMINISTRATION OF ITS CRIMINAL LAW BY ITS OWN COURTS AND JURIES.  TO
REQUIRE A FEDERAL JUDGE EXERCISING HABEAS CORPUS JURISDICTION TO
ATTEMPT TO COMBINE WITHIN HIMSELF THE PROPER FUNCTIONS OF JUDGE AND
JURY IN A STATE TRIAL - TO ASK HIM TO APPROXIMATE THE SYMPATHIES OF THE
DEFENDANT'S PEERS OR TO MAKE THE RULINGS WHICH THE STATE TRIAL JUDGE
MIGHT MAKE, WITHIN THE EXERCISE OF HIS DISCRETION CONCERNING THE
ADMISSION OF EVIDENCE AT THE BORDERLINE OF CONSTITUTIONAL
PERMISSIBILITY - IS POTENTIALLY TO PREJUDICE STATE DEFENDANTS CLAIMING
FEDERAL RIGHTS AND TO PRE-EMPT FUNCTIONS THAT BELONG TO STATE MACHINERY
IN THE ADMINISTRATION OF STATE CRIMINAL LAW. 

IN VIEW, THEREFORE, OF THE CONSTITUTIONALLY INADEQUATE TEST APPLIED
BY THE CONNECTICUT COURTS FOR DETERMINING WHETHER THE CONFESSIONS WERE
VOLUNTARILY GIVEN, WE NEED NOT, ON THIS RECORD, CONSIDER WHETHER THE
CIRCUMSTANCES OF THE INTERROGATION AND THE MANNER IN WHICH IT WAS
PRESSED BARRED ADMISSIBILITY OF THE CONFESSIONS AS A MATTER OF FEDERAL
LAW.  (FN5)  IN THE CASE BEFORE US, THE STATE TRIAL COURT MISCONSTRUED
THE APPLICABLE LAW OF THE CONSTITUTION AND WAS SUSTAINED IN DOING SO BY
CONNECTICUT'S SUPREME COURT.  IT WAS ERROR FOR THE COURT BELOW TO
AFFIRM THE DISTRICT COURT'S DENIAL OF PETITIONER'S APPLICATION FOR
HABEAS CORPUS.  THE CASE IS REMANDED TO THE COURT OF APPEALS TO BE HELD
IN ORDER TO GIVE THE STATE OPPORTUNITY TO RETRY PETITIONER, IN LIGHT OF
THIS OPINION, WITHIN A REASONABLE TIME.  IN DEFAULT THEREOF THE
PETITIONER IS TO BE DISCHARGED.  REVERSED. 

FN1  WE FIND SUPPORT FOR THIS CONCLUSION IN A LINE OF CONNECTICUT
CASES, SOME OF WHICH ARE CITED BY THE SUPREME COURT OF ERRORS IN
ROGERS.  SEE STATE V. WILLIS, 71 CONN. 293, 307-312, 41 A. 820, 824
826; STATE V. CROSS, 72 CONN. 722, 727, 46 A. 148, 150; STATE V.
DIBATTISTA, 110 CONN. 549, 563, 148 A. 664, 669; STATE V. PALKO, 121
CONN. 669, 680, 186 A. 657, 662; STATE V. TOMASSI, 137 CONN. 113, 127
128, 75 A.2D 67, 74; STATE V. GUASTAMACHIO, 137 CONN. 179, 182, 75 A.2D
429, 431; STATE V. LORAIN, 141 CONN. 694, 700, 109 A.2D 504, 507.  BUT
SEE STATE V. WAKEFIELD, 88 CONN. 164, 90 A. 230; STATE V. CASTELLI, 92
CONN. 58, 101 A. 476; STATE V. ZUKAUSKAS, 132 CONN. 450, 45 A.2D 289;
STATE V. BUTEAU, 136 CONN. 113, 68 A.2D 681; STATE V. MALM, 142 CONN.
113, 111 A.2D 685, CONTAINING NO REFERENCE TO A "TRUTH-FALSITY" TEST. 
CONNECTICUT CASE LAW REGARDING THE ADMISSIBILITY OF CONFESSIONS
ALLEGEDLY SECURED UNDER CIRCUMSTANCES WHICH RENDER THEM INVOLUNTARY, OR
BY MEANS OF PROMISES, "ARTIFICES," "DECEPTION" OR ILLEGAL POLICE
PRACTICES NOT AMOUNTING TO COERCION, IS NOT FREE FROM UNCERTAINTY.  WE
NEED NOT NOW ENDEAVOR TO ASCERTAIN THE EXTENT TO WHICH, OR THE
CIRCUMSTANCES UNDER WHICH, CONNECTICUT COURTS GENERALLY LOOK TO
RELIABILITY AS THE CRITERION, ALONE OR IN CONJUNCTION WITH OTHER
CRITERIA, OF ADMISSIBILITY.  IF PETITIONER IN THE PRESENT CASE HAS BEEN
CONVICTED THROUGH THE USE OF A CONSTITUTIONALLY IMPERMISSIBLE STANDARD,
IT IS INDIFFERENT THAT CONNECTICUT LAW, IN ITS OPERATION IN OTHER
CASES, MAY BE UNIMPEACHABLE.  WHAT THAT LAW DOES REVEAL OF RELEVANCE
HERE IS THAT CONCEPTIONS OF PROBABLE TRUTH OR PROBABLE FALSITY HAVE HAD
AND APPEAR STILL TO HAVE A PLACE IN THE REASONING OF CONNECTICUT JUDGES
IN CLASSES OF CASES HAVING SIMILARITIES TO ROGERS AND RELIED ON
THEREIN.  WITHOUT MEANING TO CONSIDER THE VALIDITY OF SUCH REASONING,
UNDER THE FOURTEENTH AMENDMENT, IN ANY APPLICATIONS BUT THE ONE NOW
BEFORE US, WE DO DERIVE FROM ITS CURRENCY IN A CONTINUING LINE OF
CONNECTICUT DECISIONS CONFIRMATION OF OUR CONCLUSION THAT THE LANGUAGE
OF THE TRIAL JUDGE AND OF THE SUPREME COURT OF ERRORS IN THE ROGERS
CASE IS NOT THE PRODUCT OF MERE VERBAL INADVERTENCE OR UNREFLECTIVE
PHRASEOLOGY, BUT AN ACCURATE EMBODIMENT OF THE MODE OF REASONING WHICH
LED TO HOLDING THAT PETITIONER'S CONFESSIONS WERE ADMISSIBLE AS
"VOLUNTARY." 

FN2  28 U.S.C. SEC. 2241(C)(3). 

FN3  DETERMINATION OF THE ADMISSIBILITY OF CONFESSIONS IS, OF COURSE,
A MATTER OF LOCAL PROCEDURE.   BUT WHETHER THE QUESTION OF
ADMISSIBILITY IS LEFT TO THE JURY OR IS DETERMINABLE BY THE TRIAL
JUDGE, IT MUST BE DETERMINED ACCORDING TO CONSTITUTIONAL STANDARDS
SATISFYING THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IF THE
QUESTION OF ADMISSIBILITY IS LEFT TO THE JURY, THEY MUST NOT BE
MISDIRECTED BY WRONG CONSTITUTIONAL STANDARDS; IF THE QUESTION IS
DECIDED BY THE TRIAL JUDGE, HE MUST NOT MISDIRECT HIMSELF.    FN4  A
DIFFERENT QUESTION WAS IMPLICITLY PRESENTED IN STROBLE V. CALIFORNIA,
343 U.S. 181.  IN THAT CASE THE TRIAL JUDGE PERMITTED THE CONFESSIONS
TO GO TO THE JURY UNDER INSTRUCTIONS WHICH TOLD IT TO DISREGARD THEM IF
IT FOUND THAT THEY WERE NOT VOLUNTARILY MADE, AND WHICH ADEQUATELY
DEFINED THE "VOLUNTARINESS" REQUIRED BY DUE PROCESS.  SEE LYONS V.
OKLAHOMA, 322 U.S. 596, 601.  THUS, THERE WAS NO FLAW IN THE VERDICT AS
RENDERED.  AN ERRONEOUS LEGAL STANDARD FOR DETERMINING THE
ADMISSIBILITY OF ALLEGEDLY COERCED CONFESSIONS WAS INTERJECTED INTO THE
PROCEEDING ONLY AT THE LEVEL OF THE SUPREME COURT OF CALIFORNIA.  HAD
THE STATE SUPREME COURT, UNDER SIMILAR CIRCUMSTANCES REVERSED THE
CONVICTION, NOT ON THE BASIS OF LOCAL LAW BUT SOLELY BY REASON OF A
MISINTERPRETATION OF THIS COURT'S PRINCIPLES GOVERNING COERCED
CONFESSIONS, AND HAD THE CASE BEEN BROUGHT HERE FOR REVIEW ON
CERTIORARI, THE JURY'S VERDICT WOULD HAVE HAD TO BE REINSTATED.  IN ANY
EVENT, THE QUESTION PRESENTED IN STROBLE WAS NOT FACED SQUARELY, AND IN
ILLUMINATING ISOLATION, IN THAT CASE.  COMPARE LEE V. MISSISSIPPI, 332
U.S. 742, WITH STROBLE. 

FN5  WE DO NOT DEAL IN THIS CASE WITH A SITUATION IN WHICH THE RECORD
- TAKING ALL OF PETITIONER'S EVIDENCE, AND THE INFERENCES REASONABLY TO
BE DRAWN FROM IT, IN THE LIGHT MOST FAVORABLE TO HIM - NEVERTHELESS
FAILS TO MAKE OUT A CLAIM OF COERCION.  SINCE THE ISSUE OF
VOLUNTARINESS MIGHT FAIRLY HAVE GONE EITHER WAY ON THE WHOLE OF THE
TESTIMONY, PETITIONER HAS CLEARLY BEEN PREJUDICED BY THE APPLICATION OF
AN ERRONEOUS STANDARD TO HIS FEDERAL CLAIM BY THE STATE TRIAL JUDGE IN
ALLOWING THE CONFESSIONS TO GO TO THE JURY. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

ALTHOUGH THE MATTER IS NOT FREE FROM DOUBT, I ACCEPT THE COURT'S
CONCLUSION THAT BOTH STATE COURTS GAVE SOME WEIGHT TO THE PROBABLE
TRUTH OF THE CONFESSIONS IN DETERMINING THAT THEY WERE VOLUNTARY.* BUT
I CANNOT ACCEPT THE PROPOSITION THAT THE PETITIONER IS ENTITLED TO HIS
RELEASE BY WAY OF FEDERAL HABEAS CORPUS MERELY BECAUSE OF THE STATE
COURTS' FAILURE PROPERLY TO VERBALIZE THE CORRECT FOURTEENTH AMENDMENT
TEST OF ADMISSIBILITY.  CF. STROBLE V. CALIFORNIA, 343 U.S. 181. 

*IN CONNECTICUT THE JURY PLAYS NO PART IN DETERMINING THE
VOLUNTARINESS OF A CONFESSION.  CONNECTICUT FOLLOWS THE ORTHODOX RULE
OF LEAVING THE DETERMINATION OF ADMISSIBILITY EXCLUSIVELY TO THE TRIAL
JUDGE.  STATE V. MCCARTHY, 133 CONN. 171, 177, 49 A.2D 594, 597; STATE
V. GUASTAMACHIO, 137 CONN. 179, 182, 75 A.2D 429, 431; STATE V. LORAIN,
141 CONN. 694, 699, 109 A.2D 504, 507.  COMPARE STEIN V. NEW YORK, 346
U.S. 156.  IF A CONFESSION IS ADMITTED, THE JURY IS LEFT TO WEIGH ITS
TRUTHFULNESS AS IT WEIGHS OTHER EVIDENCE.  THERE IS NO CLAIM IN THIS
CASE OF ANY ERROR IN THE INSTRUCTIONS TO THE JURY. 

THE WRIT CAN BE EXTENDED TO ROGERS ONLY IF HE IS "IN CUSTODY IN
VIOLATION OF THE CONSTITUTION OR LAWS OR TREATIES OF THE UNITED
STATES."  28 U.S.C. SEC. 2241(C)(3).  SEE JOHNSON V. ZERBST, 304 U.S.
458, 465-468; HAWK V. OLSON, 326 U.S. 271, 274-276.  IN THE CONTEXT OF
THE PRESENT CASE THIS MEANS THAT THE WRIT SHOULD BE GRANTED, IF, AND
ONLY IF, A COERCED CONFESSION WAS IN FACT ADMITTED AT THE TRIAL.  SEE
LEYRA V. DENNO, 347 U.S. 556.  I THINK, AS DID THE DISTRICT COURT, THAT
IN DECIDING THAT QUESTION THE APPROPRIATE INQUIRY FOR THE HABEAS CORPUS
COURT IS NOT WHAT TEST OF ADMISSIBILITY THE STATE APPLIED OR PURPORTED
TO APPLY, BUT WHETHER A CONFESSION WAS ADMITTED WHICH WAS IN FACT
INVOLUNTARY UNDER FOURTEENTH AMENDMENT STANDARDS. 

I WOULD, THEREFORE, REMAND THE CASE TO THE DISTRICT COURT FOR A
PLENARY HEARING TO DETERMINE THIS QUESTION.  WHERE, AS HERE, THE STATE
TRIAL COURT'S DETERMINATION OF ADMISSIBILITY WAS AT LEAST PARTLY
AFFECTED BY THE IMPERMISSIBLE FACTOR OF PROBABLE RELIABILITY, I THINK
THERE CAN BE NO QUESTION OF THE FEDERAL COURT'S DUTY TO HOLD SUCH A
HEARING.  WHILE THE STATE COURT'S FAILURE TO ENUNCIATE THE CORRECT
STANDARD WAS NOT ITSELF AN ERROR OF CONSTITUTIONAL DIMENSIONS, IT DID
MAKE IMPOSSIBLE THE FEDERAL COURT'S UNQUESTIONING RELIANCE ON THE TRIAL
COURT'S FINDINGS OF FACT.  EVEN THE MOST NARROW VIEW OF WHAT WAS SAID
IN BROWN V. ALLEN, 344 U.S. 443, WOULD REQUIRE A PLENARY HEARING IN
THESE CIRCUMSTANCES. 
..END :




MILANOVICH V. UNITED STATES 365 U.S. 551 


NO. 79.  ARGUED FEBRUARY 20, 1961 - DECIDED MARCH 20, 1961 - 275 F.2D
716, AFFIRMED IN PART AND SET ASIDE IN PART. 


PETITIONERS, HUSBAND AND WIFE, WERE BOTH CONVICTED IN A FEDERAL
DISTRICT COURT FOR STEALING GOVERNMENT PROPERTY IN VIOLATION OF 18
U.S.C. SEC. 641, AND THE WIFE WAS CONVICTED ALSO ON A SEPARATE COUNT
FOR RECEIVING AND CONCEALING PART OF THE SAME PROPERTY IN VIOLATION OF
THE SAME SECTION.  ON THE LARCENY CONVICTION, THE HUSBAND WAS SENTENCED
TO IMPRISONMENT FOR FIVE YEARS AND THE WIFE FOR TEN YEARS.  IN
ADDITION, THE WIFE RECEIVED A FIVE-YEAR CONCURRENT SENTENCE ON THE
RECEIVING COUNT.  THE COURT OF APPEALS SUSTAINED BOTH CONVICTIONS ON
THE LARCENY COUNT; BUT IT REVERSED THE WIFE'S CONVICTION ON THE
RECEIVING COUNT.  IT SET ASIDE THE WIFE'S FIVE-YEAR SENTENCE FOR
RECEIVING; BUT IT LET STAND HER TEN-YEAR SENTENCE FOR LARCENY.  HELD:
THE JUDGMENT AS TO THE HUSBAND IS AFFIRMED; BUT THE JUDGMENT AS TO THE
WIFE IS SET ASIDE AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR A
NEW TRIAL.  PP. 552-556. 

(A)  THE WIFE COULD NOT VALIDLY BE CONVICTED UNDER 18 U.S.C. SEC. 641
BOTH FOR STEALING GOVERNMENT PROPERTY AND FOR RECEIVING AND CONCEALING
THE SAME PROPERTY.  HEFLIN V. UNITED STATES, 358 U.S. 415.   PP. 553
554. 

(B)  THE TRIAL JUDGE ERRED IN NOT CHARGING THAT THE JURY COULD
CONVICT THE WIFE OF EITHER LARCENY OR RECEIVING, BUT NOT OF BOTH.  PP.
554-555. 

(C)  SINCE THERE IS NO WAY OF KNOWING WHETHER A PROPERLY INSTRUCTED
JURY WOULD HAVE FOUND THE WIFE GUILTY OF LARCENY OR OF RECEIVING OR OF
NEITHER, THE MERE SETTING ASIDE OF THE SHORTER CONCURRENT SENTENCE FOR
RECEIVING DID NOT SUFFICE TO CURE ANY PREJUDICE RESULTING FROM THE
JUDGE'S FAILURE TO INSTRUCT THE JURY PROPERLY.  PP. 555-556. 

MILANOVICH ET UX. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS ARE HUSBAND AND WIFE.  THEY WERE BOTH CONVICTED IN A
FEDERAL DISTRICT COURT FOR STEALING SEVERAL THOUSAND DOLLARS IN
CURRENCY FROM A COMMISSARY STORE AT A UNITED STATES NAVAL BASE.   THE
WIFE WAS CONVICTED ALSO ON A SEPARATE COUNT FOR RECEIVING AND
CONCEALING THE STOLEN CURRENCY.  (FN1)  BOTH PETITIONERS WERE SENTENCED
TO PRISON ON THE LARCENY CONVICTION, THE HUSBAND FOR A TERM OF FIVE
YEARS, AND THE WIFE FOR A TEN-YEAR TERM.  IN ADDITION, THE WIFE
RECEIVED A FIVE-YEAR CONCURRENT SENTENCE ON THE RECEIVING COUNT. 

THROUGHOUT THE TRIAL COUNSEL FOR THE PETITIONERS CONSISTENTLY
MAINTAINED THE POSITION THAT A THIEF COULD NOT BE CONVICTED OF
RECEIVING FROM HIMSELF.  (FN2)  ALTHOUGH DIRECTING AN ACQUITTAL ON THE
RECEIVING COUNT IN THE HUSBAND'S CASE, THE TRIAL JUDGE OVERRULED A
SIMILAR MOTION ON BEHALF OF THE WIFE.  COUNSEL THEN CLEARLY INDICATED
HIS INTENTION TO REQUEST THAT THE JURY BE INSTRUCTED THAT IT COULD NOT
FIND THE WIFE GUILTY OF BOTH STEALING AND RECEIVING.  (FN3)  THE TRIAL
JUDGE RESPONDED BY POINTING OUT THAT THE FOURTH CIRCUIT HAD DECIDED, IN
AARONSON V. UNITED STATES, 175 F.2D 41, THAT "IT IS POSSIBLE THAT AS
LONG AS THE PERSON DID NOT ACTUALLY PARTICIPATE IN THE ACTUAL TAKING OF
THE GOODS, THAT SAME PERSON MAY BE FOUND GUILTY OF RECEIVING AND
CONCEALING AND MAY ALSO BE FOUND GUILTY AS AN ACCESSORY BEFORE THE FACT
OR AS AN AIDER AND AN ABETTER OF THE ACTUAL CHARGE OF THEFT."  FACED
WITH THIS CONTROLLING FOURTH CIRCUIT AUTHORITY, COUNSEL DID NOT ENGAGE
IN THE FUTILE EXERCISE OF SUBMITTING A MORE FORMAL REQUEST FOR SUCH
INSTRUCTIONS. 

WHEN THE CASE REACHED THE COURT OF APPEALS, THAT COURT PUT ASIDE ITS
DECISION IN THE AARONSON CASE, IN THE LIGHT OF THIS COURT'S DECISION IN
HEFLIN V. UNITED STATES, 358 U.S. 415, WHICH HAD BEEN ANNOUNCED IN THE
MEANTIME.  IN HEFLIN WE HELD THAT A DEFENDANT COULD NOT BE CONVICTED
AND CUMULATIVELY SENTENCED UNDER 18 U.S.C. SEC. 2113 FOR BOTH ROBBING A
BANK AND RECEIVING THE PROCEEDS OF THE ROBBERY.  RELYING ON THAT
DECISION, THE COURT SET ASIDE THE SENTENCE IMPOSED UPON THE WIFE FOR
RECEIVING.  275 F.2D 716.  IT WAS THE COURT'S VIEW THAT "IN THE ABSENCE
OF A CONTRARY INDICATION BY CONGRESS, A DEFENDANT CHARGED WITH OFFENSES
UNDER STATUTES OF THIS CHARACTER MAY NOT BE CONVICTED AND PUNISHED FOR
STEALING AND ALSO FOR RECEIVING THE SAME GOODS."  275 F.2D, AT 719. 
ALTHOUGH HEFLIN INVOLVED A DIFFERENT SECTION OF THE CRIMINAL CODE, THE
COURT FOUND "NO DIFFERENCES BETWEEN THE TWO STATUTES OR THEIR
LEGISLATIVE HISTORIES JUSTIFYING DIVERGENT INTERPRETATIONS IN RESPECT
TO THE ISSUE BEFORE US." 

IN THIS VIEW WE THINK THAT THE COURT OF APPEALS WAS CORRECT.  AS THE
COURT RECOGNIZED, THE QUESTION IS ONE OF STATUTORY CONSTRUCTION, NOT OF
COMMON LAW DISTINCTIONS.  COMPARE METCALF V. STATE, 98 FLA. 457, 124
SO. 427; SMITH V. STATE, 59 OHIO ST. 350, 52 N.E. 826; JENKINS V.
STATE, 62 WIS. 49, 21 N.W. 232; REGINA V. HILTON, BELL C.C. 20, 169
ENG. REP. 1150, WITH ALLEN V. STATE, 76 TEX. CR. R. 416, 175 S.W. 700;
REGINA V. PERKINS, 2 DEN.  C.C. 458, 169 ENG. REP. 582; REGINA V.
COGGINS, 12 COX C.C. 517.  WITH RESPECT TO THE RECEIVING STATUTE BEFORE
US IN HEFLIN, WE DECIDED THAT "CONGRESS WAS TRYING TO REACH A NEW GROUP
OF WRONGDOERS, NOT TO MULTIPLY THE OFFENSE OF THE ...  ROBBERS
THEMSELVES," 358 U.S., AT 420.  WE FIND NOTHING IN THE LANGUAGE OR
HISTORY OF THE PRESENT STATUTE WHICH LEADS TO A DIFFERENT CONCLUSION
HERE.  AS IN HEFLIN, THE PROVISION OF THE STATUTE WHICH MAKES RECEIVING
AN OFFENSE CAME INTO THE LAW LATER THAN THE PROVISION RELATING TO
ROBBERY.  (FN4) 

IT IS NOW CONTENDED THAT SETTING ASIDE THE SENTENCE ON THE RECEIVING
COUNT WAS NOT ENOUGH - THAT THE CONVICTION ON THE LARCENY COUNT MUST
ALSO BE REVERSED, AND THE CASE REMANDED FOR A NEW TRIAL.  THE ARGUMENT
IS THAT ALTHOUGH THE EVIDENCE WAS SUFFICIENT TO SUPPORT A CONVICTION
FOR EITHER LARCENY OR RECEIVING, (FN5) THE JUDGE SHOULD HAVE INSTRUCTED
THE JURY THAT A GUILTY VERDICT COULD BE RETURNED UPON EITHER COUNT BUT
NOT BOTH.  IT IS URGED THAT SINCE IT IS NOW IMPOSSIBLE TO SAY WHAT
VERDICT WOULD HAVE BEEN RETURNED BY A JURY SO INSTRUCTED, AND THUS
IMPOSSIBLE TO KNOW WHAT SENTENCE WOULD HAVE BEEN IMPOSED, A NEW TRIAL
IS IN ORDER.  THIS WAS THE VIEW OF CHIEF JUDGE SOBELOFF, DISSENTING IN
THE COURT OF APPEALS.  175 F.2D, AT 721. 

WE THINK THAT THE POINT IS WELL TAKEN.  IN HEFLIN WE WERE NOT
CONCERNED WITH THE CORRECTNESS OF JURY INSTRUCTIONS, SINCE THAT CASE
AROSE OUT OF A COLLATERAL PROCEEDING TO CORRECT AN ILLEGAL SENTENCE
WHERE THE PETITIONER WAS ASKING ONLY THAT THE CUMULATIVE PUNISHMENT
IMPOSED FOR RECEIVING BE SET ASIDE.  IN THIS CASE, BY CONTRAST, A
DIRECT REVIEW OF THE CONVICTION BRINGS HERE THE ENTIRE RECORD OF THE
TRIAL.  WE HOLD, BASED ON WHAT HAS BEEN SAID AS TO THE SCOPE OF THE
APPLICABLE STATUTE, THAT THE TRIAL JUDGE ERRED IN NOT CHARGING THAT THE
JURY COULD CONVICT OF EITHER LARCENY OR RECEIVING, BUT NOT OF BOTH. 

THOUGH SETTING ASIDE THE SHORTER CONCURRENT SENTENCE IMPOSED UPON THE
WIFE FOR RECEIVING, THE COURT OF APPEALS LEFT STANDING A TEN-YEAR
PRISON TERM FOR LARCENY, DOUBLE THE PUNISHMENT THAT HAD BEEN IMPOSED
UPON THE HUSBAND FOR THE IDENTICAL OFFENSE.  YET THERE IS NO WAY OF
KNOWING WHETHER A PROPERLY INSTRUCTED JURY WOULD HAVE FOUND THE WIFE
GUILTY OF LARCENY OR OF RECEIVING (OR, CONCEIVABLY, OF NEITHER).  THUS
WE CANNOT SAY THAT THE MERE SETTING ASIDE OF THE SHORTER CONCURRENT
SENTENCE SUFFICED TO CURE ANY PREJUDICE RESULTING FROM THE TRIAL
JUDGE'S FAILURE TO INSTRUCT THE JURY PROPERLY.  IT MAY WELL BE, AS THE
COURT OF APPEALS ASSUMED, THAT THE JURY, IF GIVEN THE CHOICE, WOULD
HAVE RENDERED A VERDICT OF GUILTY ON THE LARCENY COUNT, AND THAT THE
TRIAL JUDGE WOULD HAVE IMPOSED THE MAXIMUM TEN-YEAR SENTENCE ON THAT
COUNT ALONE.  BUT FOR A REVIEWING COURT TO MAKE THOSE ASSUMPTIONS IS TO
USURP THE FUNCTIONS OF BOTH THE JURY AND THE SENTENCING JUDGE. 

WE FIND NO MERIT IN THE PETITIONERS' ARGUMENT AS TO THE TRIAL COURT'S
CONDUCT WITH RESPECT TO CAUTIONARY INSTRUCTIONS TO THE WITNESSES FOR
THE GOVERNMENT.  ACCORDINGLY, THE JUDGMENT AS TO MIKE MILANOVICH IS
AFFIRMED.  FOR THE REASONS STATED, THE JUDGMENT AS TO VIRGINIA
MILANOVICH IS SET ASIDE, AND HER CASE REMANDED TO THE DISTRICT COURT
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE STATUTE UNDER WHICH THE PETITIONERS WERE CONVICTED IS 18
U.S.C. SEC. 641.  IT PROVIDES: 

"WHOEVER EMBEZZLES, STEALS, PURLOINS, OR KNOWINGLY CONVERTS TO HIS
USE OR THE USE OF ANOTHER, OR WITHOUT AUTHORITY, SELLS, CONVEYS OR
DISPOSES OF ANY RECORD, VOUCHER, MONEY, OR THING OF VALUE OF THE UNITED
STATES OR OF ANY DEPARTMENT OR AGENCY THEREOF, OR ANY PROPERTY MADE OR
BEING MADE UNDER CONTRACT FOR THE UNITED STATES OR ANY DEPARTMENT OR
AGENCY THEREOF; OR: 

"WHOEVER RECEIVES, CONCEALS, OR RETAINS THE SAME WITH INTENT TO
CONVERT IT TO HIS USE OR GAIN, KNOWING IT TO HAVE BEEN EMBEZZLED,
STOLEN, PURLOINED OR CONVERTED: 

"SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH; BUT IF THE VALUE OF SUCH PROPERTY DOES NOT EXCEED THE
SUM OF $100, HE SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT
MORE THAN ONE YEAR, OR BOTH." 

FN2  "WE FEEL, SIR - FOR THE JURY TO BE CONSIDERING BOTH RECEIVING
AND STEALING - THAT BOTH CHARGES ARE INCONSISTENT AND IF THE EVIDENCE
IS TO BE BELIEVED THAT THESE PEOPLE ARE PARTICIPANTS, THEN THEY CANNOT
BE GUILTY OF RECEIVING, AND IF THEY ARE GUILTY OF RECEIVING, THEY
CANNOT BE GUILTY OF PARTICIPATING." 

FN3  "YOUR HONOR, WE WILL ASK THE COURT TO INSTRUCT THE JURY THAT
INASMUCH AS THEY ARE INCONSISTENT COUNTS THAT THEY CAN ONLY COME BACK,
IF THEY COME BACK WITH A VERDICT OF GUILTY, AS TO ONE OR THE OTHER, BUT
NOT BOTH." 

FN4  THE PARAGRAPH MAKING IT AN OFFENSE TO STEAL GOVERNMENT PROPERTY
HAD ITS GENESIS IN THE ACT OF MARCH 2, 1863, C. 67, 12 STAT. 696, 698. 
THE PARAGRAPH AS TO RECEIVERS ORIGINATED IN THE ACT OF MARCH 3, 1875,
C. 144, SEC. 2, 18 STAT. 479. 

FN5  IT IS ACKNOWLEDGED HERE THAT THE EVIDENCE WAS SUFFICIENT TO
SUPPORT A JURY FINDING THAT BOTH PETITIONERS AIDED AND ABETTED THE
LARCENY, AND THUS WERE GUILTY AS PRINCIPALS UNDER 18 U.S.C. SEC. 2.  IT
IS ALSO CONCEDED THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE WIFE'S
CONVICTION FOR RECEIVING AND CONCEALING THE STOLEN PROPERTY (A
SUBSTANTIAL AMOUNT OF SILVER CURRENCY HAVING BEEN FOUND IN A SUITCASE
IN HER HOME TWO WEEKS AFTER THE ROBBERY). 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

THIS IS A PROSECUTION BROUGHT UNDER 18 U.S.C. SEC. 641 (FN1) UPON AN
INDICTMENT CONTAINING SEVERAL COUNTS.  ONE CHARGED THE DEFENDANT
VIRGINIA MILANOVICH, PETITIONER HEREIN, WITH THE THEFT OF GOVERNMENT
PROPERTY; ANOTHER CHARGED HER WITH RECEIVING THE STOLEN PROPERTY WITH
AN INTENT TO CONVERT IT TO HER OWN USE.  BOTH COUNTS WERE ALLOWED TO GO
TO THE JURY WHICH EXPLICITLY FOUND THE DEFENDANT GUILTY ON EACH OF THE
TWO COUNTS. 

THIS WAS THE EVIDENCE ON WHICH THE JURY MUST HAVE BASED THEIR VERDICT
AGAINST THE DEFENDANT.  SHE AND HER HUSBAND, AS OWNERS OF AN
AUTOMOBILE, TRANSPORTED THREE OTHERS UNDER AN ARRANGEMENT WHEREBY THE
THREE WERE TO BREAK INTO A UNITED STATES NAVAL COMMISSARY BUILDING WITH
A VIEW TO STEALING GOVERNMENT FUNDS.  DEFENDANT AND HER HUSBAND WERE TO
REMAIN OUTSIDE FOR THE RETURN OF THEIR ACCOMPLICES AFTER THE
ACCOMPLISHMENT OF THE THEFT.  IN FACT, FOR ONE REASON OR ANOTHER,
HUSBAND AND WIFE DROVE OFF WITHOUT AWAITING THE RETURN OF THEIR
FRIENDS.  NOT FINDING THE AUTOMOBILE WHERE THEY HAD LEFT IT, THE
THIEVES BURIED THE BOOTY.  NO SHARE OF THE STOLEN MONEY EVER TOUCHED
THE HAND OF PETITIONER OR WAS IN ANY SENSE RECEIVED BY HER UNTIL
SEVENTEEN DAYS LATER WHEN, AFTER SHE HAD REMOVED SOME OF THE BOOTY FROM
THE BASE, IT WAS SOON AFTER DISCOVERED BY FBI AGENTS DURING A LEGAL
SEARCH OF THE PREMISES.  SINCE SHE HERSELF WAS NOT AN ACTIVE
PARTICIPANT IN THE BREAKING IN AND THIEVING, SHE WAS AMENABLE TO SEC.
641 BECAUSE SHE, AS AN ACCESSORY, WAS LEGALLY DEEMED A PRINCIPAL UNDER
18 U.S.C. SEC. 2.  (FN2)  ON THIS BASIS THE TRIAL JUDGE SUBMITTED THE
CASE TO THE JURY AND THE JURY WAS ENABLED TO FIND HER GUILTY OF THE
SUBSTANTIVE OFFENSE OF STEALING GOVERNMENT PROPERTY, AS WELL AS TO
RETURN A VERDICT OF GUILTY ON THE RECEIVING CHARGE.  THE TRIAL JUDGE
THEN SENTENCED THE DEFENDANT ON EACH OF THE COUNTS.  BECAUSE OF THE
EXTENSIVE CRIMINAL RECORD OF THE DEFENDANT, HE IMPOSED A SENTENCE OF
TEN YEARS ON THE THIEVING COUNT AND FIVE YEARS ON THE RECEIVING COUNT,
THE SENTENCES TO RUN CONCURRENTLY. 

THE COURT OF APPEALS, DRAWING ON OUR DECISION IN HEFLIN V. UNITED
STATES, 358 U.S. 415, DEEMED IT NECESSARY TO SET ASIDE THE SENTENCE
IMPOSED ON THE RECEIVING COUNT.  IT READ HEFLIN AS HOLDING THAT THE
CRIME OF RECEIVING WAS SOLELY DIRECTED TO THOSE WHO WERE NOT CONVICTED
OF STEALING; THE LATTER CONVICTION WAS THEREFORE INVALIDATED.  THE
COURT, LIKEWISE RELYING ON HEFLIN, TODAY HOLDS THAT SINCE THE JURY
SHOULD HAVE BEEN INSTRUCTED THAT THEY HAD POWER TO RETURN A VERDICT OF
GUILTY ON ONLY ONE COUNT, THE PROCEEDINGS AGAINST THE DEFENDANT MUST
START ALL OVER AGAIN, SINCE A REVIEWING COURT CANNOT PREDICT WHAT THE
JURY WOULD HAVE DONE UNDER PROPER INSTRUCTIONS. 

BOTH OF THESE CONCLUSIONS REST, I BELIEVE, ON A WHOLLY UNWARRANTED
RELIANCE ON HEFLIN.  THEY DISREGARD THE ONLY ISSUE THAT WAS BEFORE THE
COURT IN THAT CASE, AND THEREBY MISCONCEIVE ITS HOLDING.  TODAY'S
DECISION REFLECTS THE COMMON-LAW DOCTRINE OF MERGER AND THE
CONSEQUENCES OF SUCH MERGER ON THE REQUIREMENTS OF CRIMINAL PROCEDURE -
SPECIFICALLY, WHAT SEPARATE COUNTS MAY BE LAID IN AN INDICTMENT AND THE
DUTY OF A TRIAL JUDGE IN CHARGING THE JURY THE KIND OF A VERDICT THEY
MAY RETURN TO AN INDICTMENT OF MULTIPLE COUNTS. 

IT IS HORNBOOK LAW THAT A THIEF CANNOT BE CHARGED WITH COMMITTING TWO
OFFENSES - THAT IS, STEALING AND RECEIVING THE GOODS HE HAS STOLEN. 
E.G., CARTWRIGHT V. UNITED STATES, 146 F.2D 133; STATE V. TINDALL, 213
S.C. 484, 50 S.E.2D 188; SEE 2 WHARTON, CRIMINAL LAW AND PROCEDURE,
SEC. 576; 136 A.L.R. 1087.  AND THIS IS SO FOR THE COMMONSENSICAL, IF
NOT OBVIOUS, REASON THAT A MAN WHO TAKES PROPERTY DOES NOT AT THE SAME
TIME GIVE HIMSELF THE PROPERTY HE HAS TAKEN.  IN SHORT, TAKING AND
RECEIVING, AS A CONTEMPORANEOUS - INDEED A COINCIDENTAL - PHENOMENON,
CONSTITUTE ONE TRANSACTION IN LIFE AND, THEREFORE, NOT TWO TRANSACTIONS
IN LAW.  IT ALSO MAY WELL BE THAT A PERSON WHO DOES NOT HIMSELF TAKE
BUT IS A CONTEMPORANEOUS PARTICIPANT AS AN AIDER AND ABETTOR IN THE
TAKING IS ALSO A PARTICIPANT IN A SINGLE TRANSACTION AND THEREFORE HAS
COMMITTED BUT A SINGLE OFFENSE.  REGINA V. COGGINS, 12 COX C.C. 517;
REGINA V. PERKINS, 2 DEN.  C.C. 458, 169 ENG. REP. 582; REX V. OWEN, 1
MOODY C.C. 96, 168 ENG. REP. 1200.  IN SUCH A CASE, THE JURY MUST BE
TOLD THAT THE TAKING AND RECEIVING, BEING BUT A SINGLE TRANSACTION,
CONSTITUTE, OF COURSE, ONLY ONE CRIME.  SEE COMMONWEALTH V. HASKINS,
128 MASS. 60.  (THIS, OF COURSE, DOES NOT BAR CONGRESS FROM OUTLAWING
AND PUNISHING AS SEPARATE OFFENSES THE SEVERABLE INGREDIENTS OF ONE
COMPOUND TRANSACTION.  SEE GORE V. UNITED STATES, 357 U.S. 386.)    THE
CASE BEFORE US PRESENTS A TOTALLY DIFFERENT SITUATION - NOT A
COINCIDENTAL OR EVEN A CONTEMPORANEOUS TRANSACTION, IN THE LOOSEST
CONCEPTION OF CONTEMPORANEITY.  HERE WE HAVE TWO CLEARLY SEVERED
TRANSACTIONS.  THE CASE AGAINST THE DEFENDANT - AND THE ONLY CASE -
PRESENTED TWO BEHAVIORS OR TRANSACTIONS BY DEFENDANT CLEARLY AND
DECISIVELY SEPARATED IN TIME AND IN WILL.  THE INTERVENING SEVENTEEN
DAYS BETWEEN DEFENDANT'S ACCESSORIAL SHARE IN THE THEFT AND HER CONDUCT
AS A RECIPIENT LEFT THE AMPLEST OPPORTUNITIES FOR EVENTS OUTSIDE HER
CONTROL TO FRUSTRATE HER HOPE OF SHARING IN THE BOOTY, OR AMPLE TIME
FOR HER TO CHANGE HER CRIMINAL PURPOSE AND AVAIL HERSELF OF A LOCUS
POENITENTIAE.  TWO LARCENIES, SEPARATED IN TIME, WOULD NOT BE MERGED;
WHAT LEGAL DIFFERENCE BETWEEN THE TWO SITUATIONS HERE? 

IT SURELY IS FAIR TO SAY THAT IN THE COMMON UNDERSTANDING OF MEN SUCH
DISJOINTED AND DISCONTINUOUS BEHAVIORS BY MRS. MILANOVICH - (1)
BRINGING THIEVES TO THE SCENE OF THEIR PROJECTED CRIME AND DEPARTING
WITHOUT FURTHER ADO BEFORE THE THEFT HAD BEEN PERPETRATED, AND (2)
TAKING POSSESSION SEVENTEEN DAYS LATER OF PART OF THE BOOTY - CANNOT BE
REGARDED AS A SINGLE, MERGED TRANSACTION IN ANY INTELLIGIBLE USE OF
ENGLISH.  AND THAT WHICH MAKES NO SENSE TO THE COMMON UNDERSTANDING
SURELY IS NOT REQUIRED BY ANY FICTIVE NOTIONS OF LAW OR EVEN BY THE
MOST SENTIMENTAL ATTITUDE TOWARD CRIMINALS.  I VENTURE TO BELIEVE THAT
NOT A SINGLE CASE CONCERNED WITH A SITUATION COMPARABLE TO THAT NOW
BEFORE THE COURT CAN BE FOUND IN THE LAW REPORTS OF ENGLAND, OF ANY OF
THE STATES OF THIS COUNTRY, OR OF THE FEDERAL COURTS, IN WHICH IT WAS
HELD OR SUGGESTED THAT TWO DISJOINTED, DECISIVELY SEPARATED
MANIFESTATIONS OF CONDUCT CONSTITUTE AS A MATTER OF LAW A SINGLE, FUSED
TRANSACTION.  AN AMPLE CANVASS OF THE REPORTS HAS CERTAINLY NOT
REVEALED THE EXISTENCE OF SUCH A CASE, AND ONE READS THE OPINION OF THE
COURT IN VAIN TO FIND A SUGGESTION THAT ANY SUCH PRECEDENT IS
AVAILABLE. 

ONE CAN SAY WITH CONFIDENCE THAT HEFLIN IS NO WARRANT FOR THE
CONCLUSION PRONOUNCED BY THE COURT.  THERE WAS NOT THE REMOTEST
SUGGESTION IN THE PETITION THAT BROUGHT THAT CASE HERE, IN THE BRIEFS
THAT WERE SUBMITTED BEFORE ARGUMENT, IN THE ORAL ARGUMENT, OR IN THE
OPINION WHICH FORMULATED THE DECISION, THAT THE CASE WAS CONCERNED WITH
THE POWER OF THE COURT TO SUBMIT THE SEVERAL COUNTS TO THE JURY AND THE
RIGHT OF THE JURY TO CONVICT ON SEPARATE COUNTS FOR CONDUCT CHARGING
SEPARATE TRANSACTIONS CLEARLY SEPARATED IN FACT.  IN HEFLIN, THE JURY
CONVICTED DEFENDANT ON SEPARATE COUNTS OF BANK ROBBERY AND RECEIVING
STOLEN MONEY.  WE HELD THAT WE COULD FIND "NO PURPOSE OF CONGRESS TO
PYRAMID PENALTIES FOR LESSER OFFENSES FOLLOWING THE ROBBERY," AND
THEREFORE RULED AGAINST THE CUMULATION OF PUNISHMENTS, BUT FOUND NO
IMPROPRIETY IN SUBMITTING BOTH COUNTS TO THE JURY.  I FIND NOT A WORD,
NOT A HINT, NOT A SUBTLE INNUENDO SUGGESTING THAT THE CASE DEALT WITH
CRIMINAL PROCEDURE - THAT IS, WITH SUBMISSION OF DIFFERENT COUNTS TO A
JURY, WITH THE APPROPRIATENESS OF THE JUDGE'S CHARGE TO THE JURY, OR
WITH THE RIGHT OF A JURY TO BRING IN SEPARATE VERDICTS ON SEPARATE
COUNTS ON THE BASIS OF EVIDENCE JUSTIFYING SUCH SUBMISSION AND SUCH
VERDICTS. 

HEFLIN IS ONE OF A RECENT SERIES OF CASES HAVING TO DO WITH WHAT THE
COURT IN PRINCE V. UNITED STATES, 352 U.S. 322, 325, CALLED
"FRAGMENTATION OF CRIMES FOR PURPOSES OF PUNISHMENT."  BEGINNING WITH
BELL V. UNITED STATES, 349 U.S. 81, THESE CASES CONCERNED THE PROPRIETY
OF CUMULATIVE SENTENCES WITHIN DIFFERENT STATUTORY FRAMEWORKS.  (FN3)
"IT MAY FAIRLY BE SAID TO BE A PRESUPPOSITION OF OUR LAW TO RESOLVE
DOUBTS IN THE ENFORCEMENT OF A PENAL CODE AGAINST THE IMPOSITION OF A
HARSHER PUNISHMENT  ...  WHEN CONGRESS DOES NOT FIX THE PUNISHMENT FOR
A FEDERAL OFFENSE CLEARLY AND WITHOUT AMBIGUITY  ...  ."  BELL V.
UNITED STATES, SUPRA, AT 83-84.  IN NOT ONE OF THESE CASES WILL THERE
BE FOUND A WORD HAVING TO DO WITH HOW CRIMES SHOULD BE CHARGED, HOW
SUBMITTED TO THE JURY, OR WHAT VERDICTS THE JURY MAY RETURN.  HEFLIN,
LIKE THE REST OF THESE CASES, WAS CONCERNED WITH THE DUTY OF THE TRIAL
JUDGE IN SENTENCING AFTER THE JURY WAS THROUGH WITH ITS JOB.  INDEED,
IN ALL THESE CASES, THERE WERE SEVERAL COUNTS ON WHICH THE JURY FOUND A
VERDICT AND THE ISSUE AROSE NOT AS TO THE PROPRIETY OF LEAVING ALL THE
COUNTS TO THE JURY, BUT WHAT SENTENCE SHOULD BE IMPOSED AFTER THE
VERDICT HAD BEEN RETURNED. 

TO DRAW FROM HEFLIN THE DOCTRINE THAT AN AIDER AND ABETTOR TO A THEFT
WHO AT AN APPRECIABLY LATER TIME RECEIVES SOME OF THE STOLEN GOODS MAY
NOT BE CHARGED ON SEPARATE COUNTS FOR BOTH TRANSACTIONS, OR THAT A
JUDGE MAY NOT LEAVE BOTH COUNTS FOR A JURY VERDICT OF GUILT ON EITHER
ONE OR BOTH, WHEN NO SUCH QUESTION WAS IN ISSUE OR ADVERTED TO IN
HEFLIN, IS TO DISREGARD THE WHOLE PHILOSOPHY OF OUR LAW BASED ON
PRECEDENTS.  IT IS TO BASE RELIANCE ON A CASE FOR A NEW DOCTRINE WHEN
THAT CASE AFFORDS NO SUSTENANCE FOR IT. 

I AGREE WITH THE DISTRICT COURT IN THE IMPOSITION OF TWO SENTENCES TO
RUN CONCURRENTLY.  (FN4) 

FN1  "WHOEVER EMBEZZLES, STEALS, PURLOINS, OR KNOWINGLY CONVERTS TO
HIS USE OR THE USE OF ANOTHER, OR WITHOUT AUTHORITY, SELLS, CONVEYS OR
DISPOSES OF ANY RECORD, VOUCHER, MONEY, OR THING OF VALUE OF THE UNITED
STATES OR OF ANY DEPARTMENT OR AGENCY THEREOF, OR ANY PROPERTY MADE OR
BEING MADE UNDER CONTRACT FOR THE UNITED STATES OR ANY DEPARTMENT OR
AGENCY THEREOF; OR: 

"WHOEVER RECEIVES, CONCEALS, OR RETAINS THE SAME WITH INTENT TO
CONVERT IT TO HIS USE OR GAIN, KNOWING IT TO HAVE BEEN EMBEZZLED,
STOLEN, PURLOINED OR CONVERTED: 

"SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH; BUT IF THE VALUE OF SUCH PROPERTY DOES NOT EXCEED THE
SUM OF $100, HE SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT
MORE THAN ONE YEAR, OR BOTH." 

FN2  "(A)  WHOEVER COMMITS AN OFFENSE AGAINST THE UNITED STATES OR
AIDS, ABETS, COUNSELS, COMMANDS, INDUCES OR PROCURES ITS COMMISSION, IS
PUNISHABLE AS A PRINCIPAL. 

"(B)  WHOEVER WILLFULLY CAUSES AN ACT TO BE DONE WHICH IF DIRECTLY
PERFORMED BY HIM OR ANOTHER WOULD BE AN OFFENSE AGAINST THE UNITED
STATES, IS PUNISHABLE AS A PRINCIPAL." 

FN3  IN BELL, THE DEFENDANT PLEADED GUILTY TO AN INDICTMENT UNDER THE
MANN ACT WHICH CHARGED HIM IN TWO COUNTS WITH TRANSPORTING TWO WOMEN,
RESPECTIVELY, FOR IMMORAL PURPOSES ON ONE TRIP.  THIS COURT HELD THAT
CONGRESS DID NOT INTEND TO MAKE "SIMULTANEOUS TRANSPORTATION OF MORE
THAN ONE WOMAN IN VIOLATION OF THE MANN ACT LIABLE TO CUMULATIVE
PUNISHMENT FOR EACH WOMAN SO TRANSPORTED."  349 U.S., AT 82-83. 

IN PRINCE, TWO COUNTS OF AN INDICTMENT CHARGING, RESPECTIVELY,
ENTERING A BANK WITH INTENT TO ROB AND ROBBERY WERE SUBMITTED TO THE
JURY, WHICH RETURNED VERDICTS OF GUILTY ON BOTH.  THE COURT HELD THAT
THE SENTENCES COULD NOT BE CUMULATED AND REMANDED THE CASE TO THE
DISTRICT COURT FOR RESENTENCING, BUT MADE NO REFERENCE TO THE FACT THAT
TWO COUNTS WERE LAID AND FOUND BY THE JURY. 

IN CALLANAN V. UNITED STATES, 364 U.S. 587, DEFENDANT WAS CONVICTED
ON SEPARATE COUNTS FOR CONSPIRACY AND EXTORTION.  IN VIEW OF THE
HISTORIC DISTINCTIVENESS OF A CONSPIRACY FROM THE SUBSTANTIVE OFFENSE
WHICH IS ITS OBJECT, WE HELD THAT CONGRESS HAD MADE ALLOWABLE
CONSECUTIVE SENTENCES UNDER THE APPLICABLE STATUTE. 

FN4  I AGREE WITH THIS COURT THAT THE HUSBAND'S CLAIM OF TRIAL ERROR
IS WITHOUT MERIT. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE WHITTAKER JOINS, DISSENTING. 

MY DUTY HERE IS TO HELP FASHION RULES WHICH WILL ASSURE THAT EVERY
PERSON CHARGED WITH AN OFFENSE RECEIVES A FAIR AND IMPARTIAL TRIAL. 
BUT THAT OBLIGATION DOES NOT REQUIRE MY FERRETING OUT OF THE RECORD
TECHNICAL GROUNDS FOR REVERSING A PARTICULAR CONVICTION, GROUNDS WHICH
COULD NOT POSSIBLY HAVE AFFECTED THE JURY'S VERDICT OF GUILT AS A
FACTUAL DETERMINATION.  IF THE GOVERNMENT PERSEVERES, THE COURT'S ORDER
CONTEMPLATES A NEW TRIAL FOR ONE OF FIVE SAFECRACKERS WHO BEYOND ANY
EVIDENTIARY DOUBT IS GUILTY OF AIDING AND ABETTING IN LOOTING A
GOVERNMENT SAFE OF ABOUT $14,000, AND OF THEREAFTER RECEIVING PART OF
THE PROCEEDS.  THE CASE WAS TRIED BEFORE A JURY FOR 10 DAYS WITH
SCRUPULOUS ADHERENCE TO PROPER PROCEDURE.  JUDGE HOFFMAN GAVE A CLEAR
AND, I THINK, CORRECT CHARGE TO WHICH PETITIONEER MADE NO OBJECTION ON
THE GROUND UPON WHICH THE COURT NOW BASES ITS REVERSAL.  NOR DID
PETITIONER OFFER A PROPOSED INSTRUCTION COVERING THAT ISSUE. 
FURTHERMORE, THE MOTION FOR NEW TRIAL, AS SET FORTH IN THE RECORD,
URGED NO SUCH GROUND AS ERROR.  NONETHELESS, THE COURT REVERSES, SAYING
THAT "COUNSEL FOR THE PETITIONERS CONSISTENTLY MAINTAINED THE POSITION"
THROUGHOUT THE TRIAL "THAT A THIEF COULD NOT BE CONVICTED OF RECEIVING
FROM HIMSELF."  JUDGE HOFFMAN DID NOT TRY THE CASE, NOR WAS IT
SUBMITTED TO THE JURY, ON THAT THEORY.  THE RECORD SHOWS, AS MY BROTHER
FRANKFURTER POINTS OUT, THAT BEYOND QUESTION MRS. MILANOVICH TOOK NO
PART IN THE ACTUAL PHYSICAL LOOTING OF THE SAFE, AND FIRST RECEIVED ANY
OF THE STOLEN MONEY MORE THAN TWO WEEKS LATER, NOT FROM HERSELF, BUT
FROM WHERE THE SAFECRACKERS HAD BURIED IT.  IT WAS ON THAT THEORY, TO
WHICH PETITIONER MADE NO OBJECTION, THAT JUDGE HOFFMAN SUBMITTED THE
CASE TO THE JURY. 

WITH ALL DEFERENCE I MUST POINT OUT THAT IN SUPPORT OF ITS VIEW AS TO
MRS. MILANOVICH THE COURT HAS QUOTED MERELY AN EXCERPT FROM A STATEMENT
OF THIS PETITIONER'S COUNSEL, ANTE, P. 552, N. 2, MADE IN CHAMBERS ON
HIS MOTION TO REQUIRE THE UNITED STATES ATTORNEY TO ELECT AS BETWEEN
THE TWO COUNTS OF AIDING AND ABETTING, AND RECEIVING.  ADMITTEDLY, THIS
MOTION WAS NOT WELL TAKEN.  HOWEVER, DURING THAT PRESENTATION COUNSEL
STATED:  "WE WILL ASK THE COURT TO INSTRUCT THE JURY" THAT IT CANNOT
FIND PETITIONER GUILTY ON BOTH COUNTS.  BUT, AFTER THE MOTION TO ELECT
WAS DENIED, NO SUCH INSTRUCTION WAS OFFERED NOR WAS THERE MADE ON THAT
GROUND ANY OBJECTION TO THE CHARGE OMITTING SUCH INSTRUCTION.   NOW
PETITIONERS HAVE CHOSEN TO ABANDON A CLAIM OF ERROR IN THE DENIAL OF
THEIR MOTION TO ELECT, AND RELY INSTEAD UPON ERROR IN THE CHARGE,
ALTHOUGH NO OBJECTION HAD BEEN MADE ON THAT GROUND. 

MOREOVER, THE CHARGE AS GIVEN COULD NOT POSSIBLY HAVE PREJUDICED MRS.
MILANOVICH ON SENTENCE.  SHE WAS FOUND GUILTY BOTH OF AIDING AND
ABETTING, AND OF THEREAFTER RECEIVING PART OF THE STOLEN LOOT.  SHE NOW
STANDS, AFTER THE ACTION OF THE COURT OF APPEALS, SENTENCED ONLY ON THE
AIDING AND ABETTING COUNT.  EACH COUNT CARRIED THE SAME POSSIBLE
PENALTY, AND, EVEN IF THE CASE HAD BEEN SUBMITTED TO THE JURY AS IS NOW
REQUIRED, IT SEEMS RATHER UNREAL FOR US TO CONSIDER AS ANYTHING MORE
THAN SO REMOTELY POSSIBLE AS TO BE HIGHLY IMPROBABLE, THAT IN
SENTENCING THIS PETITIONER ON THE SINGLE COUNT THE TRIAL JUDGE, WHO
WOULD NONETHELESS HAVE HEARD ALL THE EVIDENCE ON BOTH COUNTS, WOULD BE
MORE LIKELY TO IMPOSE A LESSER SENTENCE THAN THE 10 YEARS ALREADY
GIVEN. 

THE COURT DOES NOT MENTION THE DILEMMA WHICH ITS RULING PRODUCES.  IT
SAYS THE JURY SHOULD HAVE BEEN INSTRUCTED THAT A GUILTY VERDICT COULD
BE RETURNED ON EITHER COUNT, BUT NOT BOTH.  THIS WOULD REQUIRE THE JURY
TO RETURN A NOT GUILTY VERDICT ON ONE COUNT.  HERE, WHERE THE JURY HAD
IN FACT FOUND MRS. MILANOVICH GUILTY OF BOTH OFFENSES, IT COULD YET BE
REQUIRED TO RETURN A FALSE VERDICT, I.E., FALSE IN FACT EVEN IF TRUE IN
LAW, ON ONE OF THEM.  EXCEPT FOR ITS IMPERFECT ANALOGY TO THE CASE OF
FACTUALLY INCONSISTENT COUNTS CHARGING LESSER-INCLUDED OFFENSES OF THE
MAIN COUNT (AS IN FIRST DEGREE MURDER), IN WHICH THE TRIAL JUDGE GIVES
THE JURY INSTRUCTIONS TO BE APPLIED SUCCESSIVELY, THE RULE SUGGESTED
TODAY IS UNHEARD OF IN OUR JURISPRUDENCE.  FOR HERE THE JURY IS INVITED
TO CONSIDER COUNTS NOT FACTUALLY INCONSISTENT, AND IN SUCH SEQUENCE AS
IT CHOOSES, WITH NO MORE REASON TO CONVICT ON ONE RATHER THAN ANOTHER
EXCEPT ITS ELECTION ON HOW TO CHARACTERIZE THE GROUNDS SUPPORTING
PETITIONER'S IMPRISONMENT.  SINCE SUCH A RESULT IS REQUIRED BY THE
PRESENT DISPOSITION, IT WOULD HAVE BEEN BETTER TO RULE THAT THE
PROSECUTOR MUST ELECT BETWEEN THE COUNTS, AS PETITIONER ORIGINALLY
WISHED. 

AS I SEE THE CASE, HOWEVER, THE JURY COULD NOT ON THE EVIDENCE HERE
HAVE FOUND THE PETITIONER NOT GUILTY, AS A MATTER OF FACT, ON THE
AIDING AND ABETTING COUNT, AND GUILTY ON THE RECEIVING ONE.  TO BE
GUILTY OF RECEIVING SHE MUST HAVE HAD KNOWLEDGE OF THE STOLEN CHARACTER
OF THE MONEY TAKEN FROM THE SAFE.  IN THIS CASE THE ONLY MEANS THROUGH
WHICH THE FACT OF THIS REQUISITE KNOWLEDGE WAS DEMONSTRATED WAS THE
CLEAR AND CONVINCING PROOF GIVEN BY HER PARTNERS IN THE CRIME WHOSE
TESTIMONY BEYOND ANY PERADVENTURE PROVED HER GUILTY OF BOTH OFFENSES. 
HOW, I ASK, COULD SHE HAVE BEEN HARMED BY THE JURY FINDING HER GUILTY
OF BOTH OFFENSES RATHER THAN CHOOSING BETWEEN THE TWO? 

TO ME IT IS CLEAR THAT WHERE THE EVIDENCE IS SUFFICIENT THE JURY
SHOULD BE LEFT FREE, AS IT ALWAYS HAS BEEN, TO FIND THE FACT OF GUILT. 
IF IN LAW THE VERDICTS SO FOUND, ALTHOUGH PROPER DETERMINATIONS OF
FACT, ARE NOT ALL ENFORCEABLE, THE DILEMMA IS ADEQUATELY RESOLVED BY
REQUIRING THE TRIAL JUDGE TO FOREGO SENTENCING ON THE UNENFORCEABLE
VERDICTS. 

FOR THESE REASONS, AND THOSE OF MY BROTHER FRANKFURTER, WHOM I JOIN,
I DISSENT. 
..END :



BURD V. WILKINS 365 U.S. 566 


NO. 716, MISC.  DECIDED MARCH 20, 1961. 


BURD V. WILKINS, WARDEN. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















YALE TRANSPORT CORP. V. UNITED STATES 365 U.S. 566 


NO. 584.  DECIDED MARCH 20, 1961 - 185 F. SUPP. 96, AFFIRMED. 


YALE TRANSPORT CORP. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :















LOUISIANA, ALLEN V. WALKER 365 U.S. 567 


NO. 655, MISC.  DECIDED MARCH 20, 1961. 


APPEAL DISMISSED BECAUSE NOTICE THEREOF WAS NOT FILED WITHIN STATUTORY
PERIOD. 

LOUISIANA EX REL. ALLEN V. WALKER, WARDEN. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR THE REASON THAT THE NOTICE THEREOF WAS
NOT FILED WITHIN THE TIME PROVIDED BY LAW. 
..END :














JERROLD ELECTRONICS CORP. V. UNITED STATES 365 U.S. 567 


NO. 631.  DECIDED MARCH 20, 1961 - 187 F. SUPP. 545, AFFIRMED. 


JERROLD ELECTRONICS CORP. ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED.  POINTS
1 AND 3, NORTHERN PACIFIC R. CO. V. UNITED STATES, 356 U.S. 1;
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392.  POINTS 2 AND 6,
UNITED STATES V. W.T. GRANT CO., 345 U.S. 629, 633.  POINT 4, SCHINE
THEATRES V. UNITED STATES, 334 U.S. 110, 119. 
..END :














MILLER V. CALIFORNIA 365 U.S. 568 


NO. 719, MISC.  DECIDED MARCH 20, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 185 CAL. APP. 2D 59, 8 CAL. RPTR.  91. 


MILLER V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















CITY OF KANSAS CITY, KANSAS V. UNITED STATES 365 U.S. 568 


NO. 657.  DECIDED MARCH 20, 1961 - 192 F. SUPP. 179, AFFIRMED. 


CITY OF KANSAS CITY, KANSAS, ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















ORLEANS PARISH SCHOOL BOARD V. BUSH 365 U.S. 569 


NO. 589.  DECIDED MARCH 20, 1961* - 187 F. SUPP. 42, 188 F. SUPP. 916,
AFFIRMED. 

*TOGETHER WITH NO. 613, ORLEANS PARISH SCHOOL BOARD ET AL. V. BUSH ET
AL., AND NO. 706, LEGISLATURE OF LOUISIANA ET AL. V. BUSH ET AL., ALSO
ON APPEALS FROM THE SAME COURT. 


ORLEANS PARISH SCHOOL BOARD ET AL. V. BUSH ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENTS ARE AFFIRMED. 
..END :













MICHIGAN NATIONAL BANK V. MICHIGAN 365 U.S. 467 


NO. 155.  ARGUED JANUARY 18-19, 1961 - DECIDED MARCH 6, 1961 - 358 MICH.
611, 101 N.W.2D 245, AFFIRMED. 


R.S. SEC. 5219 PERMITS STATES TO TAX THE SHARES OF NATIONAL BANKS, BUT
NOT "AT A GREATER RATE THAN  ...  OTHER MONEYED CAPITAL  ...  COMING
INTO COMPETITION WITH THE BUSINESS OF NATIONAL BANKS."  MICHIGAN TAXES
THE SHAREHOLDERS OF NATIONAL BANKS AT A HIGHER RATE ON THE VALUE OF
THEIR SHARES OF STOCK THAN IT TAXES THE SHAREHOLDERS OF FEDERAL AND
STATE SAVINGS AND LOAN ASSOCATIONS ON THE PAID-IN VALUE OF THEIR
SHARES.  BOTH CLASSES OF INSTITUTIONS MAKE RESIDENTIAL MORTGAGE LOANS;
BUT NATIONAL BANKS ACCEPT DEPOSITS WHICH ARE EMPLOYED IN MAKING LOANS
AND WHICH AMOUNT TO MANY TIMES THE AGGREGATE VALUE OF THEIR SHARES OF
STOCK, WHEREAS SAVINGS AND LOAN ASSOCIATIONS ACCEPT NO DEPOSITS AND
MAKE THEIR LOANS MAINLY OUT OF THE PROCEEDS OF THE SALE OF THEIR SHARES
OF STOCK.  HELD:  EVEN IF SAVINGS AND LOAN ASSOCIATIONS ARE IN
COMPETITION WITH NATIONAL BANKS, THE TAX LEVIED ON THE SHAREHOLDERS OF
NATIONAL BANKS IS NOT SO DISCRIMINATORY IN PRACTICAL EFFECT AS TO
VIOLATE R.S. SEC. 5219.  PP. 468-483. 

(A)  THE RESTRICTIONS OF SEC. 5219 ON THE PERMITTED METHODS OF STATE
TAXATION OF NATIONAL BANKS WERE DESIGNED TO PROHIBIT ONLY THOSE SYSTEMS
OF STATE TAXATION WHICH DISCRIMINATE IN PRACTICAL EFFECT AGAINST
NATIONAL BANKS OR THEIR SHAREHOLDERS AS A CLASS.  PP. 472-475. 

(B)  MICHIGAN'S TAXES ON THE SHARES OF NATIONAL BANKS AND ON SAVINGS
AND LOAN ASSOCIATIONS, RESPECTIVELY, DO NOT IN PRACTICAL EFFECT
DISCRIMINATE AGAINST NATIONAL BANKS OR THEIR SHAREHOLDERS AS A CLASS. 
PP. 475-483. 

MICHIGAN NATIONAL BANK ET AL. V. MICHIGAN ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE STATE OF MICHIGAN LEVIES "ON THE PRIVILEGE OF OWNERSHIP" A 5 1/2
MILL TAX PER DOLLAR ON THE VALUE OF EACH COMMON SHARE OF STOCK IN
NATIONAL BANKS (FN1) LOCATED IN THE STATE.  IT REQUIRES FEDERAL AND
STATE SAVINGS AND LOAN ASSOCIATIONS IN THE STATE TO PAY, IN ADDITION TO
OTHER TAXES NOT HERE INVOLVED, FOR ITS SHAREHOLDERS AN INTANGIBLES TAX
OF 2/5 OF A MILL ON EACH DOLLAR OF THE PAID-IN VALUE OF THEIR SHARES. 
(FN2)  IN ADDITION, STATE ASSOCIATIONS ALSO PAY A FRANCHISE TAX OF 1/4
MILL PER DOLLAR OF THEIR CAPITAL AND LEGAL RESERVES.  (FN3)  APPELLANT
MICHIGAN NATIONAL BANK, WITH BANKING OFFICES IN EIGHT MICHIGAN CITIES,
BROUGHT THIS SUIT TO RECOVER TAXES PAID UNDER PROTEST FOR THE YEAR
1952, CLAIMING THAT THE LEVY UNDER MICHIGAN'S ACT NO. 9 RESULTED IN A
TAX ON NATIONAL BANK SHARES AT LEAST EIGHT TIMES GREATER THAN THAT
LEVIED ON "OTHER MONEYED CAPITAL IN THE HANDS OF INDIVIDUAL CITIZENS"
IN THE STATE, IN VIOLATION OF SEC. 5219 OF THE REVISED STATUTES OF THE
UNITED STATES.  (FN4)  INITIALLY ITS ATTACK REFERRED TO MONEYED CAPITAL
IN THE HANDS OF INSURANCE AND FINANCE COMPANIES, CREDIT UNIONS AND
INDIVIDUALS, AS WELL AS SAVINGS AND LOAN ASSOCIATIONS.  BEFORE TRIAL IN
THE MICHIGAN COURT OF CLAIMS, HOWEVER, ITS CLAIM WAS LIMITED TO THE
LATTER ONLY, ASSERTING THAT THESE INSTITUTIONS WERE IN SUBSTANTIAL
COMPETITION WITH A PHASE OF THE NATIONAL BANKING BUSINESS, I.E.,
RESIDENTIAL MORTGAGE LOANS, AND WERE PREFERENTIALLY TAXED.  THE
RESULTING TAX DISCRIMINATION, APPELLANT SAYS, RENDERS ACT NO. 9 INVALID
UNDER THE CONTROLLING DECISIONS OF THIS COURT.  MICHIGAN'S HIGHEST
COURT HAS UPHELD THE STATUTE AGAINST THIS CLAIM.  358 MICH. 611, 101
N.W.2D 245.  WE NOTED PROBABLE JURISDICTION, 364 U.S. 810.  WE HAVE
CONCLUDED THAT IN PRACTICAL OPERATION, MICHIGAN'S TAX STRUCTURE DOES
NOT HAVE A DISCRIMINATORY EFFECT AND IS, THEREFORE, VALID.  THIS
DETERMINATION OBVIATES THE NECESSITY OF OUR CONSIDERING THE VOLUMINOUS
AND CONFUSING STATISTICS RELEVANT TO THE ISSUE OF WHETHER OR NOT THERE
EXISTS COMPETITION BETWEEN BANKS AND SAVINGS AND LOAN ASSOCIATIONS IN
THE STATE. 

THE SOLE AUTHORIZATION UPON WHICH MICHIGAN'S ACT NO. 9 MAY REST IS
SEC. 5219.  FIRST NAT. BANK V. ANDERSON, 269 U.S. 341 (1926); DES
MOINES NAT. BANK V. FAIRWEATHER, 263 U.S. 103 (1923).  THAT
AUTHORIZATION IS QUALIFIED BY A PROVISO THAT A STATE TAX ON NATIONAL
BANK SHARES SHALL NOT BE "AT A GREATER RATE THAN IS ASSESSED UPON OTHER
MONEYED CAPITAL IN THE HANDS OF INDIVIDUAL CITIZENS OF SUCH STATE
COMING INTO COMPETITION WITH THE BUSINESS OF NATIONAL BANKS."  WE HAVE
ASSUMED, WITHOUT DECIDING, THAT THE NATIONAL BANKS LOCATED IN MICHIGAN
AND SAVINGS AND LOAN ASSOCIATIONS THERE ARE IN COMPETITION IN A
SUBSTANTIAL PHASE OF THE BUSINESS CARRIED ON BY NATIONAL BANKS, I.E.,
RESIDENTIAL MORTGAGE LOANS.  THE SOLE QUESTION HERE IS WHETHER ACT NO.
9 EFFECTS A TAX DISCRIMINATION BETWEEN NATIONAL BANKS AND SAVINGS AND
LOAN ASSOCIATIONS. 

                    BACKGROUND RELATING TO THE PROBLEM. 

MICHIGAN FIRST AUTHORIZED THE ORGANIZATION OF SAVINGS AND LOAN
ASSOCIATIONS IN 1887.  (FN5)  THEY OPERATE TODAY UNDER THE SAME LAW AS
"COOPERATIVE" OR MUTUAL ASSOCIATIONS WHICH ACCUMULATE CAPITAL ONLY
THROUGH THE SALE OF SHARES TO MEMBERS, AND BY RETENTION OF A PERMITTED
SURPLUS AND A RESERVE FROM PROFITS.  THEY MAY MAKE LOANS ONLY ON FIRST
MORTGAGE REAL ESTATE NOTES AND CAN NEITHER CARRY ON A BANKING BUSINESS
NOR RECEIVE DEPOSITS.  (FN6)  THEIR RESERVES MUST EQUAL 10% OF
LIABILITIES TO THEIR MEMBERS AND THE ASSOCIATIONS' SURPLUS IS LIMITED
TO 5% OF ASSETS.  (FN7)  EARNINGS ABOVE THE PERMITTED RESERVES AND
SURPLUS MUST BE PAID TO MEMBERS CURRENTLY AND AT STATED PERIODS.  THE
CONGRESS AUTHORIZED THE ORGANIZATION OF FEDERAL SAVINGS AND LOAN
ASSOCIATIONS IN 1933 IN THE HOME OWNERS' LOAN ACT, 48 STATE.  128, AS
AMENDED, 12 U.S.C. SECS. 1461-1468.  THEY OPERATE ALONG THE SAME
GENERAL LINES AS STATE ASSOCIATIONS.  THE SHARES OF MEMBERS IN BOTH ARE
INSURED BY THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION.  (FN8) 

NATIONAL BANKS, OF COURSE, ENGAGE IN THE GENERAL BANKING BUSINESS AS
AUTHORIZED BY THE NATIONAL BANK ACT.  (FN9)  PRIOR TO 1916 THEY WERE
NOT PERMITTED TO MAKE REAL ESTATE MORTGAGE LOANS EXCEPT ON CERTAIN FARM
LANDS.  IN THAT YEAR THE CONGRESS AUTHORIZED THE BANKS TO MAKE
RESIDENTIAL LOANS FOR A TERM OF NOT OVER A YEAR AND TO THE EXTENT OF
50% OF THE VALUE OF THE MORTGAGED PROPERTY.  (FN10) THIS TERM WAS FIRST
ENLARGED IN 1927 TO FIVE YEARS (FN11) AND THEN TO 10 YEARS IN 1935 BY
49 STAT. 706, WHICH ALSO AUTHORIZED AN INCREASE TO 60% AS THE MAXIMUM
PROPORTION OF PROPERTY VALUE PERMITTED TO BE LOANED.  IN 1934, NATIONAL
BANKS WERE AUTHORIZED TO PURCHASE F.H.A. GUARANTEED MORTGAGES.  (FN12)
TEN YEARS LATER THAT AUTHORITY WAS ENLARGED TO INCLUDE V.A. LOANS WHICH
THE COMPTROLLER OF THE CURRENCY BY DECISION FOUND TO BE IN THE SAME
CATEGORY AS F.H.A. MORTGAGES.  (FN13)  IT WAS NOT UNTIL THIS TIME THAT
NATIONAL BANKS BECAME ANY SIGNIFICANT FACTOR IN THE RESIDENTIAL
MORTGAGE FIELD.   BY 1952 THE RATIO OF THEIR DEPOSITS TO THEIR TOTAL
ASSETS HAD MORE THAN DOUBLED, AMOUNTING TO 92% OF THEIR ASSETS, (FN14)
HAVING TOTALED ONLY 41% THEREOF AT THE TIME OF THE PASSAGE OF SEC.
5219. 

MICHIGAN NATIONAL WAS ORGANIZED IN 1941 WITH 150,000 SHARES OF $10
PAR VALUE AND TOTAL RESOURCES OF ABOUT $68,000,000.  IN 1952 IT HAD
OUTSTANDING 500,000 SHARES OF THE SAME PAR VALUE (ALL OF THE INCREASE
HAVING BEEN ISSUED AS DIVIDENDS) AND RESOURCES OF SOME $306,000,000. 
IN 1952 ITS GROSS EARNINGS ON ITS CAPITAL ACCOUNT WERE 91%, WHICH,
AFTER ALL EXPENSES AND TAXES (EXCEPT DIVIDENDS AND FEDERAL INCOME TAX),
REMAINED AT OVER 31%.  THE 16 BUILDING AND LOAN ASSOCIATIONS' AVERAGE
NET EARNINGS FOR THE SAME YEAR (BEFORE DIVIDENDS AND FEDERAL INCOME
TAXES) AMOUNTED TO 3.4% OF THEIR CAPITAL, APPROXIMATELY THEIR NORMAL
ANNUAL EARNING.  A $1,000 INVESTMENT IN MICHIGAN NATIONAL'S STOCK (58.8
SHARES) IN 1941 WAS WORTH $6,691.20 (157.5 SHARES) BY 1952, AN ANNUAL
AVERAGE INCREASE IN VALUE OF 61%.  THIS DOES NOT INCLUDE $1,308.80 IN
CASH DIVIDENDS PAID OVER THE SAME PERIOD. 

                          BACKGROUND AND CONSTRUCTION OF

                                 THE LEGISLATION. 

1.  SECTION 5219. 

CONGRESS ENACTED THE SECTION IN 1864 (FN15) AND THIS COURT HAS PASSED
ON IT OVER 55 TIMES IN THE NEAR CENTURY OF THE SECTION'S EXISTENCE. 
DURING THAT PERIOD THE COURT HAS KEPT CLEARLY IN VIEW, AS WAS SAID IN
THE LAST CASE IN WHICH IT WROTE, THAT "THE VARIOUS RESTRICTIONS (SEC.
5219)  ...  PLACES ON THE PERMITTED METHODS OF TAXATION ARE DESIGNED TO
PROHIBIT ONLY THOSE SYSTEMS OF STATE TAXATION WHICH DISCRIMINATE IN
PRACTICAL OPERATION AGAINST NATIONAL BANKING ASSOCIATIONS OR THEIR
SHAREHOLDERS AS A CLASS."  TRADESMENS NAT.  BANK V. OKLAHOMA TAX
COMM'N, 309 U.S. 560, 567 (1940).  REVERTING TO ONE OF THE FIRST AND
CONTROLLING CASES DEALING WITH THE SECTION, MERCANTILE BANK V. NEW
YORK, 121 U.S. 138 (1887), (FN16) WE FIND THAT MR. JUSTICE MATTHEWS
DECLARED FOR A UNANIMOUS COURT THAT THE PURPOSE OF THE CONGRESS IN
PASSING THE PROVISION WAS "TO PROHIBIT THE STATES FROM IMPOSING SUCH A
BURDEN AS WOULD PREVENT THE CAPITAL OF INDIVIDUALS FROM FREELY SEEKING
INVESTMENT IN INSTITUTIONS WHICH IT WAS THE EXPRESS OBJECT OF THE LAW
TO ESTABLISH AND PROMOTE."  AT P. 154.  THE COURT FURTHER HELD DEPOSITS
IN SAVINGS BANKS TO BE MONEYED CAPITAL BUT APPROVED THEIR TOTAL
EXEMPTION FROM STATE TAXES, ALONG WITH OTHER ENUMERATED PROPERTY, ON
THE GROUND THAT THE STATE HAD SHOWN "JUST REASON" SO TO DO.  IN ESSENCE
THE CASE STANDS FOR THE PROPOSITION THAT THE STATE CANNOT, BY ITS TAX
STRUCTURE, CREATE "AN UNEQUAL AND UNFRIENDLY COMPETITION" WITH NATIONAL
BANKS.  THIS CASE FOLLOWED IN THE LIGHT OF HEPBURN V. SCHOOL DIRECTORS,
23 WALL.  480 (1874), WHERE CHIEF JUSTICE WAITE HAD POINTED OUT THAT
THE TAXABLE VALUE OF THE STOCK IN A NATIONAL BANK IS NOT NECESSARILY
DETERMINED BY ITS NOMINAL OR PAR VALUE BUT RATHER BY "THE AMOUNT OF
MONEYED CAPITAL WHICH THE INVESTMENT REPRESENTS FOR THE TIME BEING." 
"THEREFORE SOME PLAN MUST BE DEVISED TO ASCERTAIN WHAT AMOUNT OF MONEY
AT INTEREST IS ACTUALLY REPRESENTED BY A SHARE OF STOCK."  AT P. 484. 

THE QUESTION OF TAX EQUIVALENCE THUS POSED HAS ECHOED AND RE-ECHOED
THROUGH THE CASES.  A YEAR SUBSEQUENT TO THE DECISION IN MERCANTILE
BANK, SUPRA, THE SAME POINT WAS RAISED IN BANK OF REDEMPTION V. BOSTON,
125 U.S. 60 (1888), WHERE THE EXEMPTION OF DEPOSITS IN SAVINGS BANKS
WAS APPROVED IN AN OPINION WHICH AGAIN WAS WRITTEN BY MR. JUSTICE
MATTHEWS.  THE COURT, IN COMPARING THE TAX LEVIED ON THE TWO
INSTITUTIONS, I.E., NATIONAL BANKS AND SAVINGS BANKS, SAID:  "BUT
SHARES OF THE NATIONAL BANKS, WHILE THEY CONSTITUTE THE CAPITAL STOCK
OF THE CORPORATIONS, DO NOT REPRESENT THE WHOLE AMOUNT OF THE CAPITAL
ACTUALLY EMPLOYED BY THEM.  THEY HAVE DEPOSITS, TOO, SHOWN IN THE
PRESENT RECORD TO AMOUNT, IN MASSACHUSETTS, TO $132,042,332.  THE BANKS
ARE NOT ASSESSED FOR TAXATION ON ANY PART OF THESE, ALTHOUGH THESE
DEPOSITS CONSTITUTE A LARGE PART OF THE ACTUAL CAPITAL PROFITABLY
EMPLOYED BY THE BANKS IN THE CONDUCT OF THEIR BANKING BUSINESS.  BUT IT
IS NOT NECESSARY TO ESTABLISH THE EXACT EQUALITY IN RESULT OF THE TWO
MODES OF TAXATION."  AT P. 67.  A QUARTER OF A CENTURY LATER, MR.
JUSTICE PITNEY IN AMOSKEAG SAVINGS BANK V. PURDY, 231 U.S. 373 (1913),
IN COMMENTING ON THE FACTORS TO BE CONSIDERED IN DETERMINING THE BURDEN
OF THE TAX, SAID:  "THERE ARE OTHER CONSIDERATIONS TO BE WEIGHED IN
DETERMINING THE ACTUAL BURDEN OF THE TAX, ONE OF WHICH IS THE MODE OF
VALUING BANK SHARES - BY ADOPTING 'BOOK VALUES' (CAPITAL, SURPLUS,
UNDIVIDED PROFITS) - WHICH MAY BE MORE OR LESS FAVORABLE THAN THE
METHOD ADOPTED IN VALUING OTHER KINDS OF PERSONAL PROPERTY."  AT P.
392.  THE POINT WAS MADE EVEN MORE CLEARLY BY MR. JUSTICE BRANDEIS IN
FIRST NAT. BANK V. LOUISIANA TAX COMM'N, 289 U.S. 60 (1933), WHERE HE
SAID:  "THERE IS A FUNDAMENTAL DIFFERENCE BETWEEN BANKS, WHICH MAKE
LOANS MAINLY FROM MONEY OF DEPOSITORS, AND THE OTHER FINANCIAL
INSTITUTIONS, WHICH MAKE LOANS MAINLY FROM THE MONEY SUPPLIED OTHERWISE
THAN BY DEPOSITS."  AT. P. 64.  AND SO, WE ARE TAUGHT THAT IN
DETERMINING THE BURDEN OF THE TAX - ITS DISCRIMINATORY CHARACTER - WE
LOOK TO ITS EFFECT, NOT ITS RATE.  SEE AMOSKEAG SAVINGS BANK, SUPRA;
COVINGTON V. FIRST NAT. BANK, 198 U.S. 100 (1905), AND TRADESMENS NAT.
BANK V. OKLAHOMA TAX COMM'N, SUPRA, THE LAST CASE OF THIS COURT ON THE
POINT. 

2.  MICHIGAN'S ACT NO. 9. 

ACT NO. 9, WE HAVE STATED, LEVIES A TAX OF 5 1/2 MILLS ON THE BOOK
VALUE OF EACH SHARE OF STOCK IN NATIONAL BANKS, WHILE THE SEPARATELY
IMPOSED TAX ON ALL SAVINGS AND LOAN ASSOCIATION SHARES, EXCLUSIVE OF
OTHER TAXES, IS 2/5 OF A MILL ON THE PAID-IN VALUE OF THE SHARES PLUS,
ON STATE ASSOCIATIONS ONLY, 1/4 OF A MILL ON THE VALUE OF THE PAID-IN
CAPITAL AND LEGAL RESERVES.  IT APPEARS FROM THE RECORD THAT PRIOR TO
THE ENACTMENT OF THIS TAX AN INEQUITY IN THE STATE'S TAX STRUCTURE WAS
THOUGHT TO EXIST BETWEEN STATE AND NATIONAL BANKS.  UPON STUDY OF THE
PROBLEM AND THE RECOMMENDATION OF THE TAXATION COMMITTEE OF THE
MICHIGAN BANKERS ASSOCIATION, THE STATE LEGISLATURE DECIDED TO TAX ALL
BANKS "EXACTLY ALIKE."  IT EMBODIED THE PROPOSAL OF THE ASSOCIATION
INTO ACT NO. 9.  WHILE WE HAVE NO LEGISLATIVE HISTORY IN THE RECORD
BEFORE US, ACCORDING TO THE AMICUS CURIAE BRIEF OF THE BANKERS
ASSOCIATION FILED IN THE TRIAL COURT, THE SPONSORS OF ACT NO. 9 THOUGHT
IT WOULD BE "REASONABLE FROM THE VIEWPOINT OF THE PUBLIC, EQUITABLE
FROM THE VIEWPOINT OF THE COMPETITORS, AND PRACTICAL FROM THE VIEWPOINT
OF THE BANKS THEMSELVES."  THE OPINION OF RESPONSIBLE OFFICIALS OF THIS
ASSOCIATION, FILED IN THIS CASE SOME SEVEN YEARS AFTER ACT NO. 9 HAD
BEEN IN EFFECT AND THE TAXES THEREIN PROVIDED PAID WITHOUT PROTEST,
SAVE FOR APPELLANT AND FOUR OTHER BANKS, WAS:  "ACTUAL EXPERIENCE WITH
THE TAXATION SYSTEM SHOWS THAT IT HAS PRODUCED A REASONABLE AMOUNT OF
REVENUE TO THE STATE; THAT IT HAS NOT CREATED ANY COMPETITIVE
DISADVANTAGE AMONG THE VARIOUS TYPES OF INSTITUTIONS; AND THAT IT HAS
PROVEN TO BE SIMPLE TO ADMINISTER." 

MICHIGAN'S SUPREME COURT HAS ALSO HELD THAT NO DISCRIMINATION IN THE
TAX WAS PROVEN.  WHILE THE BASIS OF THIS HOLDING IS NOT TOO CLEAR, WE
TAKE IT THAT THE FINDING OF TOTAL TAX EQUALITY AS BETWEEN THE NATIONAL
BANKS AND THE ASSOCIATIONS, INSOFAR AS ACT NO. 9 WAS CONCERNED, MEANT
THAT, IN THE COURT'S VIEW, THE MICHIGAN LEGISLATURE, IN FIXING THE RATE
(5 1/2 MILLS) ON THE BANKS, HAD EITHER (1) TAKEN INTO CONSIDERATION THE
MONEYED CAPITAL ON HAND IN EACH TYPE OF INSTITUTION, I.E., DEPOSITS,
WHICH WERE NOT PRESENT AS TO SAVINGS AND LOAN ASSOCIATIONS, OR (2) IF
SUCH METHOD OF VALUATION OF BANK STOCK WAS NOT PERMISSIBLE, THAT THE
LEGISLATURE INTENDED TO EXEMPT FROM TAXATION ANY DIFFERENCE BETWEEN THE
TAXES LEVIED ON NATIONAL BANKS AND SAVINGS AND LOAN ASSOCIATIONS
BECAUSE OF THE FUNCTIONS OF THE LATTER AS REPOSITORIES FOR THE "SMALL
SAVINGS AND ACCUMULATIONS OF THE INDUSTRIOUS AND THRIFTY."  SUCH
DIFFERENCES, THE MICHIGAN SUPREME COURT SAID, WERE "JUSTIFIED AS
PARTIAL EXEMPTIONS," UNDER MERCANTILE BANK, SUPRA, AND SUBSEQUENT
CASES.  WHILE WE ARE NOT BOUND BY EITHER OF THESE INTERPRETATIONS
PLACED ON ACT NO. 9 BY MICHIGAN'S HIGHEST COURT, 358 MICH. 611, 639
640, 101 N.W.2D 245, 259-260, WE DO ACCEPT AS CONTROLLING ITS
INTERPRETATION THAT, IN FIXING THE RATE ON NATIONAL BANK SHARES, THE
LEGISLATURE TOOK INTO ACCOUNT THE MONEYED CAPITAL CONTROLLED THEREBY. 
WE BELIEVE THAT, GRANTED SATISFACTION OF THE OTHER QUALIFICATIONS OF
SEC. 5219, A STATE'S TAX SYSTEM OFFENDS ONLY IF IN PRACTICAL OPERATION
IT DISCRIMINATES AGAINST NATIONAL BANKS OR THEIR SHAREHOLDERS AS A
CLASS.  THAT IS TO SAY, WE COULD NOT STRIKE DOWN ACT NO. 9, AS
INTERPRETED BY MICHIGAN'S HIGHEST COURT, UNLESS IT WERE MANIFEST THAT
AN INVESTMENT IN NATIONAL BANK SHARES WAS PLACED AT A DISADVANTAGE BY
THE PRACTICAL OPERATION OF THE STATE'S LAW.  ACCORDING TO OUR CASES,
DISCUSSED ABOVE, THAT CLEARLY APPEARS TO HAVE BEEN THE PURPOSE OF THE
CONGRESS IN ENACTING SEC. 5219.  (FN17)  WE HAVE MADE A COMPREHENSIVE
EXAMINATION OF THE RECORD AND FAIL TO FIND SUCH A DISCRIMINATORY EFFECT
TO BE MANIFEST IN MICHIGAN'S TAX SYSTEM. 

AS HAS BEEN REPEATEDLY INDICATED IN OUR DECISIONS, A DOLLAR INVESTED
IN NATIONAL BANK SHARES CONTROLS MANY MORE DOLLARS OF MONEYED CAPITAL,
THE MEASURING ROD OF SEC. 5219.  ON THE OTHER HAND, THE SAME DOLLAR
INVESTED IN A SAVINGS AND LOAN SHARE CONTROLS NO MORE MONEYED CAPITAL
THAN ITS FACE VALUE.  THE BANK SHARE HAS THE POWER AND CONTROL OF ITS
PROPORTIONATE INTEREST IN ALL OF THE MONEY AVAILABLE TO THE BANK FOR
INVESTMENT PURPOSES.  IN THE CASE OF MICHIGAN NATIONAL, THIS CONTROL IS
MORE THAN 21 TIMES GREATER THAN THE SHARE'S PROPORTIONATE INTEREST IN
THE CAPITAL STOCK, SURPLUS AND UNDIVIDED PROFITS WOULD INDICATE.  AS TO
ALL NATIONAL BANKS IN THE UNITED STATES, THE RECORD SHOWS THAT CAPITAL
ACCOUNTS AMOUNTING TO ABOUT $7,000,000,000 CONTROL SOME
$100,000,000,000 OF DEPOSITS (92% OF THE TOTAL ASSETS OF ALL THESE
BANKS) OR AN AMOUNT 14 TIMES GREATER.  SAVINGS AND LOAN ASSOCIATIONS
HAVE NO SIMILAR ASSETS OF THAT CHARACTER, THEIR ONLY SOURCE OF MONEYED
CAPITAL BEING THE SHARE ACCOUNTS OF MEMBERS AND, AT LEAST IN THE CASE
HERE, THE RELATIVELY SMALL AMOUNT OF RETAINED EARNINGS AND SURPLUS
PERMITTED UNDER LAW. 

RELATING THE STATISTICS TO THE IMMEDIATE PROBLEM, THE CAPITAL,
SURPLUS AND UNDIVIDED PROFITS OF MICHIGAN NATIONAL TOTALED ABOUT
$13,000,000, TO WHICH THE 5 1/2-MILL TAX WAS APPLIED.  THE TAX AMOUNTED
TO $68,181.  THE 16 SAVINGS AND LOAN ASSOCIATIONS WITH WHICH APPELLANT
WAS IN COMPETITION HAD A PAID-IN SHARE VALUE OF $134,000,000, TO WHICH
WAS APPLIED THE 2/5-MILL TAX.  THE RESULTANT TAX WAS ABOUT $53,260. 
HAD THE SAME TAX RATE (2/5-MILL) BEEN APPLIED TO THE MONEYED CAPITAL,
I.E., DEPOSITS, OF MICHIGAN NATIONAL ($283,000,000), THE PRODUCT WOULD
HAVE MORE THAN EQUALED THE TAX REVENUE FROM THE APPLICATION OF THE 5
1/2-MILL RATE AGAINST ITS CAPITAL ACCOUNT.  IN FACT, IT WOULD HAVE
AMOUNTED TO ABOUT $113,000, OR 1.7 TIMES THE 1952 TAX BILL ON
APPELLANT'S SHARES.  SIMILAR RESULTS COULD BE OBTAINED AS TO ALL
NATIONAL BANKS IN MICHIGAN.  THEIR TOTAL CAPITAL ACCOUNTS,
$166,700,000, WHEN TAXED AT THE 5 1/2-MILL RATE, YIELD SOME $917,000 IN
TAXES.  THE 2/5-MILL RATE, IF APPLIED TO THEIR TOTAL DEPOSITS,
$3,516,000,000, RESULTS IN $1,406,000 IN TAXES.  THIS IS MORE THAN 1.5
TIMES THE 1952 TAXES ASSESSED UNDER ACT NO. 9. 

WHILE IT IS OBVIOUS THAT THE TAXABLE VALUE OF THE SHARES IN THESE TWO
TYPES OF FINANCIAL INSTITUTIONS IS DETERMINED BY DIFFERENT METHODS
(FN18) AND THAT THEY ARE BEING TAXED AT DIFFERENT RATES, IT DOES NOT
FOLLOW THAT SEC. 5219 IS AUTOMATICALLY VIOLATED.  "IT IS NOT A VALID
OBJECTION TO A TAX ON NATIONAL BANK SHARES THAT OTHER MONEYED CAPITAL
IN THE STATE IS  ...  TAXED AT A DIFFERENT RATE OR ASSESSED BY A
DIFFERENT METHOD UNLESS IT APPEARS THAT THE DIFFERENCE IN TREATMENT
RESULTS IN FACT IN A DISCRIMINATION UNFAVORABLE TO THE HOLDERS OF THE
SHARES OF NATIONAL BANKS."  TRADESMENS NAT. BANK V. OKLAHOMA TAX
COMM'N, SUPRA, AT 567.  CF. AMOSKEAG SAVINGS BANK V. PURDY, SUPRA;
COVINGTON V. FIRST NAT. BANK, SUPRA.  WE MUST REMEMBER THE
INTERPRETATION PLACED ON ACT NO. 9 BY MICHIGAN'S SUPREME COURT.  IT
HELD IN EFFECT THAT THE LEGISLATURE HAD TAKEN INTO ACCOUNT, IN FIXING
THE DIFFERENT RATES ON NATIONAL BANK STOCK AND SAVINGS AND LOAN SHARES,
THE ADDITIONAL MONEYED CAPITAL CONTROLLED BY THE FORMER.  SINCE
MICHIGAN NATIONAL'S SHARE OWNER'S INVESTMENT HAS THE EQUIVALENT PROFIT
MAKING POWER OF AN AMOUNT 21 TIMES GREATER THAN ITSELF AND THE INVESTOR
IN SAVINGS AND LOAN SHARE ACCOUNTS HAS NO SIMILARLY MULTIPLIED POWER,
THE NATIONAL BANK SHARE WOULD NOT BE "UNFAVORABLY" TREATED UNLESS IT
WAS TAXED IN EXCESS OF 21 TIMES THE LEVY ON SAVINGS AND LOAN SHARE
ACCOUNTS.  CF. BANK OF REDEMPTION V. BOSTON, SUPRA, AT 67.  HERE THE
RATIO IS ONLY 13.8 TO ONE, AND IF THE ADDITIONAL FRANCHISE TAX UPON
STATE ASSOCIATIONS IS INCLUDED, THE PROPORTION DROPS TO 8.5 TO ONE. 
THIS IS NOT TO SAY THAT THE VALUE OF THE BANK'S DEPOSITS IS A FACTOR IN
THE COMPUTATION OF THE TAX TO BE PAID UNDER THE MICHIGAN STATUTES. 
HOWEVER, THE DEPOSITS ARE RELEVANT TO THE DETERMINATION OF WHETHER OR
NOT THE TAX, AS COMPUTED UNDER THE STATUTES, IS A GREATER BURDEN THAN
THAT PLACED ON "OTHER MONEYED CAPITAL."  (FN19) 

IT IS SAID, HOWEVER, THAT THIS METHOD WOULD BE CONTRARY TO MINNESOTA
V. FIRST NAT. BANK, 273 U.S. 561 (1927).  IT WAS ARGUED IN THAT CASE
THAT AN EQUIVALENCE OF TAX BETWEEN NATIONAL BANKS AND OTHER MONEYED
CAPITAL EXISTED BECAUSE, IF THE TAX RATE APPLICABLE TO OTHER MONEYED
CAPITAL WAS APPLIED TO THE ASSETS OF THE BANK WITHOUT DEDUCTING
LIABILITIES, THE ULTIMATE TAX WOULD BE APPROXIMATELY THE SAME. 
HOWEVER, MR. JUSTICE (LATER CHIEF JUSTICE) STONE, WRITING FOR THE
COURT, REJECTED THAT ARGUMENT BECAUSE IT "IGNORES THE FACT THAT THE TAX
AUTHORIZED BY SEC. 5219 IS AGAINST THE HOLDERS OF THE BANK SHARES AND
IS MEASURED BY THE VALUE OF THE SHARES, AND NOT BY THE ASSETS OF THE
BANK WITHOUT DEDUCTION OF ITS LIABILITIES  ...  ."  AT 564.  HOWEVER,
THAT CASE WAS DECIDED ON THE AUTHORITY OF FIRST NAT. BANK V. HARTFORD,
273 U.S. 548, WHICH MR. JUSTICE STONE ALSO WROTE AND HANDED DOWN THE
SAME DAY.  THERE THE COMPARISON BETWEEN THE WIDESPREAD CAPITAL EXEMPTED
AND THAT OF NATIONAL BANKS WHICH WAS TAXED, LED TO THE INVALIDATION OF
WISCONSIN'S TAX STATUTE.  THE ERROR THE COURT FOUND WAS THAT WISCONSIN
"CONSTRUED THE DECISIONS OF THIS COURT AS REQUIRING EQUALITY IN
TAXATION ONLY OF MONEYED CAPITAL INVESTED IN BUSINESSES SUBSTANTIALLY
IDENTICAL WITH THE BUSINESS CARRIED ON BY NATIONAL BANKS."  AT 555. 
WHILE MINNESOTA'S ACT, AS CONSTRUED, WAS NOT SO BROAD, IT TAXED CAPITAL
(INCLUDING STATE BANK SHARES) OTHER THAN THAT INVESTED IN NATIONAL BANK
SHARES AT A LOWER RATE.  SINCE BOTH NATIONAL AND STATE BANKS WERE
PERMITTED TO DEDUCT DEPOSITS, IT FOLLOWED THAT IT WOULD HAVE BEEN
DISCRIMINATORY TO TAX ONE AT A LOWER RATE THAN THE OTHER.  HOWEVER,
IMPLICIT IN THE RULING IS THE PROPOSITION THAT IF THE SAME BASE IS
EMPLOYED IN THE VALUATION OF THE SHARES OF THE COMPETING INSTITUTIONS,
AS HERE, AND THE PRACTICAL EFFECT OF THE DIFFERENT RATE DOES NOT RESULT
IN A DISCRIMINATION AGAINST MONEYED CAPITAL IN THE HANDS OF NATIONAL
BANKS, WHEN COMPARED WITH OTHER COMPETING MONEYED CAPITAL, IT DOES NOT
VIOLATE SEC. 5219.  "THE BANK SHARE TAX MUST BE COMPARED WITH  ...  THE
TAX ON CAPITAL INVESTED BY INDIVIDUALS IN THE SHARES OF CORPORATIONS
WHOSE BUSINESS COMPETES WITH THAT OF NATIONAL BANKS."  MINNESOTA V.
FIRST NAT.  BANK, SUPRA, AT 564.  IN SHORT, RESULTING DISCRIMINATION IN
THE EFFECT OF THE TAX IS THE TEST. 

MOREOVER, THESE CASES WERE BOTH HANDED DOWN PRIOR TO CONGRESSIONAL
ENACTMENT OF THE HOME OWNERS' LOAN ACT OF 1933, (FN20) WHICH IS "IN
PARI MATERIA" WITH SEC. 5219 AND APPEARS "TO THROW A CROSS LIGHT" (L.
HAND IN UNITED STATES V. ALUMINIUM CO. OF AMERICA, 148 F.2D 416, 429
(C.A.2D CIR. 1945)) ON MICHIGAN'S SAVINGS AND LOAN TAX STATUTE.  THE
1933 ACT, PERMITTING THE CREATION OF FEDERAL SAVINGS AND LOAN
ASSOCIATIONS, CONTAINED A PROVISION RESPECTING LOCAL TAXATION WHICH
STATED IN PART:

"  ...  NO STATE  ...  SHALL IMPOSE ANY TAX ON SUCH FEDERAL
ASSOCIATIONS OR THEIR FRANCHISE, CAPITAL, RESERVES, SURPLUS, LOANS, OR
INCOME GREATER THAN THAT IMPOSED BY SUCH AUTHORITY ON OTHER SIMILAR
LOCAL MUTUAL OR COOPERATIVE THRIFT AND HOME FINANCING INSTITUTIONS." 
48 STAT. 134. 

UNLESS CONGRESS HAD RECOGNIZED THAT STATES TAXING NATIONAL BANK
SHARES WERE FREE, IN SPITE OF SEC. 5219, TO EXEMPT THEIR OWN SAVINGS
AND LOAN ASSOCIATIONS FROM LOCAL TAXATION, IT WOULD HAVE USED LANGUAGE
SIMILAR OR REFERRING TO SEC. 5219, AS IT DID IN OTHER FEDERAL STATUTES
CREATING DIFFERENT TYPES OF THRIFT INSTITUTIONS.  (FN21)  TO INSURE
THAT THE FEDERAL CREATURES RECEIVED THE SAME BENEFITS, IF ANY, AS STATE
AGENCIES, CONGRESS TIED THE TAXATION LIMITATIONS TO STATE ACTION
AFFECTING THE LATTER RATHER THAN TO SEC. 5219.  ALTHOUGH THE FEDERAL
STATUTE WAS ENACTED PRIOR TO MICHIGAN'S SAVINGS AND LOAN TAX STATUTE,
ITS ACCOMMODATION TO SUCH STATE MEASURES, ACTUAL OR POTENTIAL,
ILLUSTRATES THE ASSIMILATION BY CONGRESS OF STATE SAVINGS AND LOAN
ASSOCIATIONS TO THEIR FEDERAL ANALOGUES, AND NOT TO THE VERY DIFFERENT
NATIONAL FISCAL INSTITUTIONS WHICH NATIONAL BANKS ARE.  FURTHERMORE,
THE POWER OF THE STATE TO GRANT LIBERAL TAX TREATMENT TO ITS OWN
ASSOCIATIONS, VIEWED EVEN WITHOUT THE LIGHT OF CONGRESSIONAL ACTION, IS
AMPLY SUPPORTED BY THE EXEMPTION DOCTRINE OF MERCANTILE BANK, SUPRA,
RECOGNIZED AS STILL VITAL LONG AFTER MICHIGAN'S LAW OF 1887 UNDER WHICH
THE SAVINGS AND LOAN ASSOCIATIONS OF THAT STATE ARE ORGANIZED.  THESE
CONSIDERATIONS WEIGH HEAVILY IN EVALUATING MICHIGAN'S ENACTMENT UNDER
SEC. 5219. 

UNDER THIS STANDARD, MICHIGAN'S TAX STRUCTURE DOES NOT, IN PRACTICAL
EFFECT, RESULT IN ANY DISCRIMINATION.  ITS SYSTEM LOOKS TO THE MONEYED
CAPITAL CONTROLLED BY THE SHAREHOLDER.  IF IT IS A SHARE IN A BANK -
EITHER FEDERAL OR STATE - THE LEGISLATURE CONSIDERS THE DEPOSITS
AVAILABLE FOR INVESTMENT AND FIXES A RATE COMMENSURATE WITH THAT
INCREASED EARNING AND INVESTMENT POWER OF THE SHAREHOLDER.  THE
RESULTING TAX IS NOT ON THE ASSETS OF THE BANK, NOR ON DEPOSITS, BUT ON
THE CONTROL THE SHAREHOLDER HAS IN THE MONEYED CAPITAL MARKET.  THUS,
CONTROLLING SOME 21 TIMES THE CASH VALUE OF HIS SHARE, A MICHIGAN
NATIONAL SHAREHOLDER PAYS THE HIGHER RATE.  ON THE OTHER HAND, A
SAVINGS AND LOAN SHAREHOLDER CONTROLS NO DEPOSITS.  HE HAS ONLY THE
CASH VALUE OF HIS SHARE (AND THE COMPARATIVELY MINUTE RESERVES ALLOWED
BY LAW), INSOFAR AS THE MONEYED CAPITAL MARKET IS CONCERNED. 
CONSEQUENTLY HE PAYS THE LOWER RATE.  AS THE MICHIGAN BANKERS
ASSOCIATION HAS INDICATED, THIS APPROACH IS REALISTIC FROM A BUSINESS
STANDPOINT, DOES NOT RESULT IN DISCRIMINATION, IS ECONOMICALLY SOUND
AND IS FAIR TO EACH TYPE OF TAXPAYER.  IF IT RESULTS, AS IT DID IN
1952, IN GIVING MICHIGAN NATIONAL A TAX ADVANTAGE, IT CANNOT COMPLAIN. 

IT MAY BE THAT AT SOME FUTURE TIME, ALTHOUGH THE STATISTICS INDICATE
IT TO BE IMPROBABLE, (FN22) THE BANK DEPOSITS MAY FALL TO SUCH A LEVEL
THAT THE 5 1/2-MILL RATE WOULD BE VIOLATIVE OF SEC. 5219.   BUT HERE WE
ARE CONCERNED WITH ONLY ONE YEAR, 1952, AND FOR THAT YEAR THE TAX
LEVIED DOES NOT APPROACH THE PERMISSIBLE MAXIMUM.  SUCH A POSSIBILITY,
HOWEVER, MAY ACCOUNT FOR THE ACTION OF THE LEGISLATURE IN SETTING THE
TAXES AT THE LOWER THAN MAXIMUM LEVELS NOW APPLIED. 

HAVING ASSUMED THE ELEMENT OF COMPETITION BETWEEN MICHIGAN NATIONAL
AND THE SAVINGS AND LOAN ASSOCIATIONS, A PREREQUISITE TO THE
APPLICATION OF SEC. 5219, AND IN LIGHT OF BOTH THE CLEAR DOCTRINE OF
OUR EARLIER CASES AND THE PHENOMENAL GROWTH AND EARNING POWER OF
APPELLANT DESPITE ACT NO. 9, WE CANNOT SAY THAT ITS BURDEN IN 1952 WAS
SO HEAVY AS WOULD "PREVENT THE CAPITAL OF INDIVIDUALS FROM FREELY
SEEKING INVESTMENT" IN ITS SHARES. 

WE HAVE CONSIDERED APPELLANT'S OTHER POINTS AND HAVE CONCLUDED EACH
IS WITHOUT MERIT.  AFFIRMED. 

FN1  ACT NO. 9 OF THE PUBLIC ACTS OF MICHIGAN FOR 1953 (MICH. COMP.
LAWS, 1948, 1956 SUPP., SEC. 205.132A) PROVIDES IN PERTINENT PART: 

"FOR THE CALENDAR YEAR 1952  ...  AND FOR EACH YEAR THEREAFTER, OR A
PORTION THEREOF, THERE IS HEREBY LEVIED UPON EACH RESIDENT OR
NONRESIDENT OWNER OF SHARES OF STOCK OF NATIONAL BANKING ASSOCIATIONS
LOCATED IN THIS STATE  ...  AND THERE SHALL BE COLLECTED FROM EACH SUCH
OWNER AN ANNUAL SPECIFIC TAX ON THE PRIVILEGE OF OWNERSHIP OF EACH SUCH
SHARE OF STOCK, WHETHER OR NOT IT IS INCOME PRODUCING, EQUAL IN THE
CASE OF A SHARE OF COMMON STOCK TO 5 1/2 MILLS UPON EACH DOLLAR OF THE
CAPITAL ACCOUNT OF SUCH ASSOCIATION  ...  REPRESENTED BY SUCH SHARE,
AND EQUAL IN THE CASE OF A SHARE OF PREFERRED STOCK TO 5 1/2 MILLS UPON
THE PAR VALUE OF SUCH SHARE." 

FN2  MICH. COMP. LAWS, 1948, 1956 SUPP., SEC. 205.132, PROVIDES IN
PERTINENT PART: 

"FOR THE CALENDAR YEAR 1952, AND FOR EACH YEAR THEREAFTER OR PORTION
THEREOF THERE IS HEREBY LEVIED UPON EACH RESIDENT OR NON-RESIDENT OWNER
OF INTANGIBLE PERSONAL PROPERTY  ...  AND THERE SHALL BE COLLECTED FROM
SUCH OWNER AN ANNUAL SPECIFIC TAX ON THE PRIVILEGE OF OWNERSHIP OF EACH
ITEM OF SUCH PROPERTY OWNED BY HIM.  ...  THE TAX ON SHARES OF STOCK IN
...  SAVINGS AND LOAN ASSOCIATIONS SHALL BE 1/25 OF 1 PER CENT OF THE
PAID-IN VALUE OF SUCH SHARES." 

FN3  MICH. COMP. LAWS, 1948, SEC. 450.304A, PROVIDES: 

"EVERY BUILDING AND LOAN ASSOCIATION ORGANIZED OR DOING BUSINESS
UNDER THE LAWS OF THIS STATE SHALL  ...  , FOR THE PRIVILEGE OF
EXERCISING ITS FRANCHISE AND OF TRANSACTING ITS BUSINESS WITHIN THIS
STATE, PAY TO THE SECRETARY OF STATE AN ANNUAL FEE OF 1/4 MILL UPON
EACH DOLLAR OF ITS PAID-IN CAPITAL AND LEGAL RESERVE."    THE MICHIGAN
TAX STRUCTURE WAS AMENDED, IN 1954, TO PROVIDE THAT FEDERAL SAVINGS AND
LOAN ASSOCIATIONS ALSO PAY A PRIVILEGE TAX EQUAL TO 1/4 MILL ON CAPITAL
AND LEGAL RESERVES.  MICH. COMP. LAWS, 1948, 1956 SUPP., SEC. 489.371. 

FN4  R.S. SEC. 5219, AS AMENDED, 12 U.S.C. SEC. 548, PROVIDES IN
PERTINENT PART: 

"THE LEGISLATURE OF EACH STATE MAY DETERMINE AND DIRECT, SUBJECT TO
THE PROVISIONS OF THIS SECTION, THE MANNER AND PLACE OF TAXING ALL THE
SHARES OF NATIONAL BANKING ASSOCIATIONS LOCATED WITHIN ITS LIMITS.  THE
SEVERAL STATES MAY (1) TAX SAID SHARES  ...  , PROVIDED THE FOLLOWING
CONDITIONS ARE COMPLIED WITH:           *         *         *         *
   * 

"(B)  IN THE CASE OF A TAX ON SAID SHARES THE TAX IMPOSED SHALL NOT
BE AT A GREATER RATE THAN IS ASSESSED UPON OTHER MONEYED CAPITAL IN THE
HANDS OF INDIVIDUAL CITIZENS OF SUCH STATE COMING INTO COMPETITION WITH
THE BUSINESS OF NATIONAL BANKS:  PROVIDED, THAT BONDS, NOTES, OR OTHER
EVIDENCES OF INDEBTEDNESS IN THE HANDS OF INDIVIDUAL CITIZENS NOT
EMPLOYED OR ENGAGED IN THE BANKING OR INVESTMENT BUSINESS AND
REPRESENTING MERELY PERSONAL INVESTMENTS NOT MADE IN COMPETITION WITH
SUCH BUSINESS, SHALL NOT BE DEEMED MONEYED CAPITAL WITHIN THE MEANING
OF THIS SECTION." 

FN5  MICH. PUB. ACTS 1887, NO. 50. 

FN6  MICH. COMP. LAWS, 1948, SEC. 489.37. 

FN7  MICH. COMP. LAWS, 1948, SEC. 489.24. 

FN8  48 STAT. 1257, AS AMENDED, 12 U.S.C. SEC. 1726. 

FN9  12 U.S.C. SECS. 21-200. 

FN10  39 STAT. 754. 

FN11  44 STAT. 1232-1233. 

FN12  48 STAT. 1263. 

FN13  HOME LOANS PARTIALLY GUARANTEED UNDER G.I. ACT, COMPTROLLER OF
THE CURRENCY PRESS RELEASE, DEC. 12, 1944. 

FN14  IN ACCOUNTING TERMINOLOGY, BANK DEPOSITS ARE LIABILITIES. 
HOWEVER, THEY ARE A SOURCE OF ASSETS AND FOR CONVENIENCE WILL BE
REFERRED TO AS ASSETS HEREAFTER. 

FN15  13 STAT. 111.  IT HAS BEEN AMENDED FOUR TIMES (15 STAT. 34,
R.S. SEC. 5219, 42 STAT. 1499, 44 STAT. 223), NONE OF WHICH CHANGES ARE
OF ANY IMPORT HERE.  IN THE 1958 EDITION OF THE UNITED STATES CODE IT
APPEARS AS SEC. 548 OF TITLE 12. 

FN16  ALSO SEE AN EARLIER CASE, OFTEN CITED, PEOPLE V. WEAVER, 100
U.S. 539 (1879), WHICH HELD THAT IT WAS THE ACTUAL INCIDENCE AND
PRACTICAL BURDEN OF THE TAX WHICH THE SECTION SOUGHT OUT.  THIS
POSITION IS TREATED IN DETAIL BY PROFESSOR WOOSLEY IN HIS WORK, STATE
TAXATION OF BANKS (1935). 

FN17  FOR A DISCUSSION OF THE EFFECT OF THE CASES, SEE POWELL,
INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY BY THE TAXING POWERS OF THE
STATES, 31 HARV. L. REV. 321, 367 (1918).  HE CONCLUDES THAT THE CASES
LEAD "TO A DISREGARD OF FORMAL LEGAL DISCRIMINATION WHERE THERE IS IN
FACT NO SUBSTANTIAL ECONOMIC DISCRIMINATION."  TO THE SAME EFFECT, SEE
WOOSLEY, OP. CIT., SUPRA, NOTE 16, AT PP. 24-25. 

FN18  THE TAXABLE VALUE OF A NATIONAL BANK SHARE OF COMMON STOCK
UNDER ACT NO. 9 IS DETERMINED BY DIVIDING THE "CAPITAL ACCOUNT" (COMMON
CAPITAL, SURPLUS AND UNDIVIDED PROFITS) BY THE NUMBER OF SHARES OF
COMMON STOCK OUTSTANDING.  A SHARE ACCOUNT IN A SAVINGS AND LOAN
ASSOCIATION, ON THE OTHER HAND, IS VALUED ACCORDING TO ITS "PAID-IN
VALUE."  THAT THIS LATTER FIGURE INCLUDES NEITHER SURPLUS NOR UNDIVIDED
PROFITS IS OBVIOUS FROM AN INSPECTION OF THE TAX RETURN OF A SAVINGS
AND LOAN INSTITUTION AND ITS FINANCIAL STATEMENT.  FOR EXAMPLE, THE
INDUSTRIAL SAVINGS AND LOAN ASSOCIATION'S INTANGIBLES TAX RETURN FOR
1952 SHOWS THAT ITS PAID-IN SHARE VALUE WAS $5,970,000.  THE
ASSOCIATION'S MONTHLY REPORT FOR DECEMBER 1952 SHOWS THAT THERE WERE
SOME $283,000 IN UNDIVIDED PROFITS AND $202,000 IN LEGAL RESERVES WHICH
WERE NOT INCLUDED IN THE COMPUTATION OF PAID-IN VALUE FOR TAX
PURPOSES. 

FN19  IT IS ARGUED THAT THIS DISREGARDS THE FACT THAT BANK DEPOSITS
ARE LIABILITIES AND MUST BE REPAID.  THIS CONTENTION IS WITHOUT
SUBSTANCE FOR THE SAVINGS SHARE ACCOUNTS MUST, BY LAW, BE PURCHASED BY
THE SAVINGS AND LOAN ASSOCIATION UPON A MEMBER'S WITHDRAWAL.  MICH.
COMP. LAWS, 1948, SEC. 489.6.  IN THIS RESPECT, THEREFORE, THE SHARE
ACCOUNTS AND DEPOSITS ARE IDENTICAL.  BOTH MUST BE REPAID. 

FN20  48 STAT. 128, AS AMENDED, 12 U.S.C. SECS. 1461-1468. 

FN21  42 STAT. 1469, 12 U.S.C. SEC. 1261 (NATIONAL AGRICULTURAL
CREDIT CORPORATIONS); 39 STAT. 380, 12 U.S.C. SEC. 932 (JOINT-STOCK
LAND BANKS). 

FN22  FROM ITS ORGANIZATION IN 1941 TO THE END OF 1951, MICHIGAN
NATIONAL'S TOTAL ASSETS GREW FROM $67,600,000 TO $272,500,000, AN
AVERAGE ANNUAL INCREASE OF SOME $20,500,000.  BY 1957, ITS ASSETS
TOTALED $481,000,000, SHOWING AN AVERAGE ANNUAL GROWTH OF ALMOST
$34,800,000 DURING THE YEARS SINCE ACT.  NO. 9 WAS PASSED.  SIMILARLY,
DEPOSITS INCREASED, ON THE AVERAGE, BY $18,800,000 EACH YEAR BETWEEN
1941 AND 1951.  SINCE THAT TIME, THEY HAVE GROWN AT THE AVERAGE RATE OF
$30,700,000 A YEAR. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

I RESPECTFULLY BUT RESOLUTELY DISSENT.  EXPOSITION OF MY REASONS WILL
REQUIRE A RATHER FULL AND CAREFUL STATEMENT OF THE FACTS AND THE
APPLICABLE LAW. 

A STATE IS WITHOUT POWER TO TAX NATIONAL BANK SHARES EXCEPT AS
CONGRESS CONSENTS AND THEN ONLY IN CONFORMITY WITH THE CONDITIONS OF
SUCH CONSENT.  SEE, E.G., FIRST NATIONAL BANK V. ANDERSON, 269 U.S.
341, 347, AND DES MOINES NATIONAL BANK V. FAIRWEATHER, 263 U.S. 103,
106.  BY SEC. 5219 OF THE REVISED STATUTES OF THE UNITED STATES (ACT OF
JUNE 3, 1864, C. 106, 13 STAT. 111, AS AMENDED BY THE ACT OF FEBRUARY
10, 1868, 15 STAT. 34, THE ACT OF MARCH 4, 1923, 42 STAT. 1499, AND THE
ACT OF MARCH 25, 1926, 44 STAT. 223), CONGRESS HAS CONSENTED THAT: 

"THE LEGISLATURE OF EACH STATE MAY DETERMINE AND DIRECT, SUBJECT TO
THE PROVISIONS OF THIS SECTION, THE MANNER AND PLACE OF TAXING ALL THE
SHARES OF NATIONAL BANKING ASSOCIATIONS LOCATED WITHIN ITS LIMITS.  THE
SEVERAL STATES MAY (1) TAX SAID SHARES, OR (2) INCLUDE DIVIDENDS
DERIVED THEREFROM IN THE TAXABLE INCOME OF AN OWNER OR HOLDER THEREOF,
OR (3) TAX SUCH ASSOCIATIONS ON THEIR NET INCOME, OR (4) ACCORDING TO
OR MEASURED BY THEIR NET INCOME, PROVIDED THE FOLLOWING CONDITIONS ARE
COMPLIED WITH: 

"1.  (A)  THE IMPOSITION BY ANY STATE OF ANY ONE OF THE ABOVE FOUR
FORMS OF TAXATION SHALL BE IN LIEU OF THE OTHERS  ...  ." 

"(B) IN THE CASE OF A TAX ON SAID SHARES THE TAX IMPOSED SHALL NOT BE
AT A GREATER RATE THAN IS ASSESSED UPON OTHER MONEYED CAPITAL IN THE
HANDS OF INDIVIDUAL CITIZENS OF SUCH STATE COMING INTO COMPETITION WITH
THE BUSINESS OF NATIONAL BANKS  ...  ." 

PURSUANT TO THAT CONSENT, MICHIGAN PASSED ITS INTANGIBLES TAX ACT
(ACT 301, PUBLIC ACTS OF 1939; MICH. COMP. LAWS, 1948, SEC. 205.132;
MICH. STAT. ANN., 1950, SEC. 7.556(2)) IMPOSING, UPON THE OWNERS, AN
ANNUAL TAX (1) OF 3% OF THE INCOME FROM, BUT NOT LESS THAN 1/10 OF 1%
OF THE FACE OR PAR VALUE OF, NATIONAL BANK SHARES, AND (2) OF 4 CENTS
PER $100 OF THE "PAID-IN VALUE" OF SAVINGS AND LOAN ASSOCIATION
SHARES.  BY ANOTHER STATUTE, MICHIGAN IMPOSED, IN ADDITION, A PRIVILEGE
TAX OF 2 1/2 CENTS PER $100 ON THE VALUE OF THE CAPITAL AND LEGAL
RESERVES OF STATE (BUT NOT FEDERAL) SAVINGS AND LOAN ASSOCIATIONS
(MICH. COMP.  LAWS, 1948, SEC. 450.304A; MICH. STAT. ANN. SEC. 21.206)
THUS MAKING A TOTAL TAX OF 6 1/2 CENTS PER $100 OF THE VALUE OF STATE,
AND 4 CENTS PER $100 OF THE VALUE OF FEDERAL, SAVINGS AND LOAN SHARES. 

IN OBEDIENCE TO THAT INTANGIBLES TAX ACT, APPELLANT, MICHIGAN
NATIONAL BANK, HAVING OFFICES AND DOING BUSINESS IN SEVEN CITIES IN
MICHIGAN, (FN1) PAID TO THE STATE, ON BEHALF OF ITS SHAREHOLDERS, THE
TAXES THEREBY IMPOSED ON ITS SHARES FOR THE YEAR 1952.  THEREAFTER, BY
ACT NO. 9 OF THE PUBLIC ACTS OF MICHIGAN FOR 1953 (SEC. 205.132A, MICH.
COMP. LAWS, 1948, 1956 SUPP.; MICH. STAT. ANN., 1959 CUM. SUPP., SEC.
7.556(2A)), THE STATE AMENDED ITS INTANGIBLES TAX ACT AS RESPECTS BANK
SHARES, BUT WITHOUT TOUCHING THE PROVISIONS RESPECTING SAVINGS AND LOAN
ASSOCIATION SHARES, TO PROVIDE, IN PERTINENT PART, AS FOLLOWS: 

"FOR THE CALENDAR YEAR 1952  ...  AND FOR EACH YEAR THEREAFTER,  ...
THERE IS HEREBY LEVIED UPON EACH  ...  OWNER OF SHARES OF STOCK OF
NATIONAL BANKING ASSOCIATIONS LOCATED IN THIS STATE AND BANKS AND TRUST
COMPANIES ORGANIZED UNDER THE LAWS OF THIS STATE, AND THERE SHALL BE
COLLECTED FROM EACH SUCH OWNER AN ANNUAL SPECIFIC TAX  ...  EQUAL IN
THE CASE OF A SHARE OF COMMON STOCK TO 5 1/2 MILLS UPON EACH DOLLAR OF
THE CAPITAL ACCOUNT OF SUCH ASSOCIATION, BANK OR TRUST COMPANY
REPRESENTED BY SUCH SHARE, AND EQUAL IN THE CASE OF A SHARE OF
PREFERRED STOCK TO 5 1/2 MILLS UPON THE PAR VALUE OF SUCH SHARE." 
(FN2) 

ACTING UNDER THE PROVISIONS OF THE AMENDED STATUTE ("ACT 9"), THE
STATE IMPOSED AN ADDITIONAL TAX UPON THE OWNERS OF APPELLANT'S "SHARES"
FOR THE YEAR 1952 OF $49,929.27.  AFTER PAYING THAT ADDITIONAL TAX
UNDER PROTEST, APPELLANT BROUGHT THIS ACTION IN THE MICHIGAN COURT OF
CLAIMS FOR ITS RECOVERY.  THE GROUND OF ITS SUIT WAS THAT THE STATE'S
ACTION IN TAXING THE "SHARES" OF NATIONAL BANKS AT A RATE OF 55 CENTS
PER $100 OF THEIR VALUE, WHILE TAXING THE "SHARES" OF SAVINGS AND LOAN
ASSOCIATIONS AT A RATE OF 6 1/2 CENTS PER $100 OF THEIR VALUE, TAXED
THE FORMER "AT A GREATER RATE THAN IS ASSESSED UPON OTHER MONEYED
CAPITAL IN THE HANDS OF INDIVIDUAL CITIZENS OF SUCH STATE COMING INTO
COMPETITION WITH THE BUSINESS OF NATIONAL BANKS," AND THEREFORE
VIOLATED SEC. 5219.  AFTER TRIAL, THE MICHIGAN COURT OF CLAIMS HELD
THAT THE ASSESSMENT AND COLLECTION OF THE ADDITIONAL TAX DID NOT
VIOLATE SEC. 5219 AND ENTERED JUDGMENT FOR THE STATE. 

ON APPEAL, THE MICHIGAN SUPREME COURT, THOUGH CONCEDING THAT ACT 9
PLACED THE SHARES OF "BOTH STATE AND NATIONAL BANKS IN A SPECIAL AND
MORE HEAVILY TAXED CATEGORY" THAN THE SHARES OF SAVINGS AND LOAN
ASSOCIATIONS, HELD, INTER ALIA, (1) THAT BECAUSE SAVINGS AND LOAN
ASSOCIATIONS ARE "DIFFERENT IN CHARACTER, PURPOSE AND ORGANIZATION FROM
NATIONAL BANKS," OPERATE "IN A NARROW, RESTRICTED FIELD," AND ARE NOT
PERMITTED TO RECEIVE DEPOSITS, THEY COULD NOT, AS A MATTER OF LAW, COME
"INTO COMPETITION WITH THE BUSINESS OF NATIONAL BANKS" WITHIN THE
MEANING OF SEC. 5219, (2) THAT INASMUCH AS MICHIGAN LAWFULLY MIGHT
ENTIRELY EXEMPT SOME ENTITIES OR ACTIVITIES FROM TAXATION WITHOUT
OFFENDING SEC. 5219, IT MAY PREFER THE SHARES OF SAVINGS AND LOAN
ASSOCIATIONS, BY GRANTING THEIR OWNERS A LOWER TAX RATE THAN IT GRANTS
TO THE OWNERS OF SHARES OF NATIONAL BANKS, WITHOUT THEREBY VIOLATING
SEC. 5219, AND (3) THAT WHEN THE VALUE OF THE TOTAL ASSETS, RATHER THAN
THE VALUE OF THE SHARES, OF THE TWO TYPES OF FINANCIAL INSTITUTIONS IS
CONSIDERED (THUS PUTTING OUT OF CONSIDERATION THE LIABILITY OF THE
BANKS TO REPAY THEIR DEPOSITS AND OTHER DEBTS), THE RATIO OF THE TOTAL
DOLLAR TAX BURDEN TO TOTAL ASSETS IS APPROXIMATELY THE SAME IN MICHIGAN
- .091 FOR BANKS AND .089 FOR SAVINGS AND LOAN ASSOCIATIONS - AND THIS,
IT SAID, "ESTABLISHES THAT THERE WAS PRACTICAL EQUALITY OF THE TOTAL
TAX IMPOSED UPON BUILDING AND LOAN ASSOCIATIONS AND UPON NATIONAL
BANKS."  IT THEREFORE AFFIRMED THE JUDGMENT, 358 MICH. 611, 101 N.W.2D
245, AND WE NOTED PROBABLE JURISDICTION OF THE BANK'S APPEAL.  364 U.S.
810. 

THIS COURT TODAY SUBSTANTIALLY ADOPTS THE LATTER CONCLUSION, AND ON
THAT BASIS AFFIRMS THE JUDGMENT.  IN DOING SO, I MUST SAY, WITH
RESPECT, THAT THE COURT IGNORES BOTH THE PROVISIONS OF SEC. 5219 AND
MICHIGAN'S MODE, PLAINLY EXPRESSED IN ITS ACT 9, OF VALUING NATIONAL
BANK SHARES AND THE SHARES OF SAVINGS AND LOAN ASSOCIATIONS FOR THE
PURPOSES OF ITS TAX UPON THEM, AND EFFECTIVELY DEFACES AND DEPARTS FROM
A LONG LINE OF THIS COURT'S DECISIONS, HAMMERED OUT, CASE BY CASE, OVER
THE COURSE OF NEARLY A CENTURY, THAT ARE SQUARELY IN POINT AND
SPECIFICALLY DECISIVE OF EVERY QUESTION IN THE CASE. 

THE ADMITTED DIFFERENCE IN THE RATES OF TAX - 55 CENTS PER $100 OF
THE VALUE OF NATIONAL BANK SHARES AS OPPOSED TO 6 1/2 CENTS PER $100 OF
THE VALUE OF SAVINGS AND LOAN SHARES - LEAVES, OF COURSE, NO DOUBT THAT
THE FORMER ARE TAXED "AT A GREATER RATE THAN" THE LATTER - MORE THAN
EIGHT TIMES GREATER.  THEREFORE, THE ONLY QUESTIONS THAT CAN POSSIBLY
BE OPEN HERE UNDER SEC. 5219 ARE (1) WHETHER SAVINGS AND LOAN SHARES
ARE "OTHER MONEYED CAPITAL IN THE HANDS OF INDIVIDUAL CITIZENS," (2)
WHETHER THAT MONEYED CAPITAL IS "COMING INTO COMPETITION WITH SOME
SUBSTANTIAL PHASE (FN3) OF THE BUSINESS OF NATIONAL BANKS," AND (3)
WHETHER IT IS "SUBSTANTIAL IN AMOUNT WHEN COMPARED WITH THE
CAPITALIZATION OF NATIONAL BANKS."  THE LATTER BEING AN ELEMENT THAT
THIS COURT HAS HELD TO BE IMPLICIT IN THE STATUTE.  FIRST NATIONAL BANK
V. HARTFORD, 273 U.S. 548, 558. 

SURELY IT CANNOT NOW BE DOUBTED THAT SHARES OWNED BY INDIVIDUAL
CITIZENS IN A SAVINGS AND LOAN ASSOCIATION, WHICH ENGAGES IN THE
BUSINESS OF MAKING RESIDENTIAL MORTGAGE LOANS FOR PROFIT, ARE "OTHER
MONEYED CAPITAL IN THE HANDS OF INDIVIDUAL CITIZENS," WITHIN THE
MEANING OF SEC. 5219.  THIS COURT HAS LONG SINCE SETTLED THE QUESTION. 
THE TERM "INCLUDES SHARES OF STOCK OR OTHER INTERESTS OWNED BY
INDIVIDUALS IN ALL ENTERPRISES IN WHICH THE CAPITAL EMPLOYED IN
CARRYING ON ITS BUSINESS IS MONEY, WHERE THE OBJECT OF THE BUSINESS IS
THE MAKING OF PROFIT BY ITS USE AS MONEY."  MERCANTILE BANK V. NEW
YORK, 121 U.S. 138, 157.  "BY ITS TERMS THE STATUTE EXCLUDES FROM
MONEYED CAPITAL ONLY THOSE PERSONAL INVESTMENTS WHICH ARE NOT IN
COMPETITION WITH THE BUSINESS OF NATIONAL BANKS."  FIRST NATIONAL BANK
V. HARTFORD, SUPRA, AT 557.  SEE ALSO MINNESOTA V. FIRST NATIONAL BANK,
273 U.S. 561, 564; FIRST NATIONAL BANK V. ANDERSON, SUPRA, AT 348, AND
CASES CITED. 

WHETHER SUCH MONEYED CAPITAL IS BEING USED IN "COMPETITION WITH SOME
SUBSTANTIAL PHASE OF THE BUSINESS OF NATIONAL BANKS" AND IS
"SUBSTANTIAL IN AMOUNT WHEN COMPARED WITH THE CAPITALIZATION OF
NATIONAL BANKS" ARE MIXED QUESTIONS OF LAW AND FACT, "AND IN DEALING
WITH THEM WE MAY REVIEW THE FACTS IN ORDER CORRECTLY TO APPLY THE
LAW."  FIRST NATIONAL BANK V. HARTFORD, SUPRA, AT 552.    HERE THE
RELEVANT FACTS ARE NOT IN DISPUTE.  THE UNCONTROVERTED EVIDENCE SHOWS
THAT, AS A PART OR PHASE OF ITS GENERAL BANKING BUSINESS CONDUCTED IN
SEVEN CITIES IN MICHIGAN, APPELLANT IS EXTENSIVELY ENGAGED IN THE
BUSINESS OF MAKING RESIDENTIAL MORTGAGE LOANS.  IN THOSE CITIES, THERE
ARE 16 SAVINGS AND LOAN ASSOCIATIONS WHICH ARE ALSO EXTENSIVELY ENGAGED
IN THAT BUSINESS.  COMPETITION BETWEEN THEM AND APPELLANT FOR SUCH
LOANS IS KEEN AND CONTINUOUS.  BOTH APPELLANT AND THOSE LOAN
ASSOCIATIONS EXTENSIVELY ADVERTISE FOR AND SOLICIT SUCH LOANS FROM ALL
CLASSES AND IN EVERY ECONOMIC STRATA OF THE PEOPLE IN THOSE
COMMUNITIES.  THEY MAKE THESE LOANS ON THE SAME KINDS OF RESIDENTIAL
PROPERTIES AND IN THE SAME AREAS - ONE TYPE OF INSTITUTION OFTEN
REFINANCING AND RETIRING A LOAN OF THE OTHER.  THE RATES, TERMS AND
CONDITIONS OF THE LOANS, BEING COMPETITIVE, ARE SUBSTANTIALLY THE SAME,
AND IN MANY CASES - PARTICULARLY IN THE CASES OF F.H.A. AND V.A. LOANS
THEY ARE OF PRECISELY THE SAME TERMS AND ON EXACTLY THE SAME FORMS -
FORMS PREPARED AND FURNISHED BY THE FEDERAL GOVERNMENT. 

DIRECTED SPECIFICALLY TO THE QUESTION WHETHER MONEYED CAPITAL OF
SAVINGS AND LOAN ASSOCIATIONS WAS BEING USED, IN SIGNIFICANT AMOUNTS,
IN "COMPETITION WITH SOME SUBSTANTIAL PHASE OF THE BUSINESS OF NATIONAL
BANKS" IN MICHIGAN, THE UNCONTROVERTED EVIDENCE SHOWS THAT IN THE YEAR
IN QUESTION, 1952, THE SAVINGS AND LOAN ASSOCIATIONS IN MICHIGAN HELD
$433,000,000 OF RESIDENTIAL MORTGAGE LOANS, WHILE THE NATIONAL BANKS IN
THAT STATE HELD $301,000,000 OF SUCH LOANS - WHICH CONSTITUTED 30% OF
THEIR TOTAL LOANS AND DISCOUNTS.  IN THE SAME YEAR, THE 16 SAVINGS AND
LOAN ASSOCIATIONS THAT WERE MOST DIRECTLY COMPETING WITH APPELLANT MADE
6,498 RESIDENTIAL MORTGAGE LOANS AGGREGATING ABOUT $32,000,000 (OF
WHICH $6,273,000 WERE F.H.A. AND V.A. AND $26,058,000 WERE CONVENTIONAL
LOANS) WHICH BROUGHT THEIR TOTAL HOLDINGS IN SUCH LOANS TO
$97,000,000.  WHEREAS, IN THE SAME YEAR, APPELLANT MADE 2,728
RESIDENTIAL MORTGAGE LOANS AGGREGATING ABOUT $18,500,000 (OF WHICH
$10,869,000 WERE F.H.A., $456,000 WERE V.A. AND $7,245,000 WERE
CONVENTIONAL LOANS) WHICH BROUGHT ITS TOTAL HOLDINGS IN SUCH LOANS TO
$60,000,000.  THOSE LOANS AMOUNTED TO 40% OF APPELLANT'S TOTAL LOANS
AND DISCOUNTS, CONSTITUTED 20% OF ITS ASSETS AND YIELDED 26% OF ITS
INCOME. 

UPON THE QUESTION WHETHER THE MONEYED CAPITAL OF SAVINGS AND LOAN
ASSOCIATIONS THAT WAS USED IN MAKING RESIDENTIAL MORTGAGE LOANS IN
MICHIGAN WAS "SUBSTANTIAL IN AMOUNT WHEN COMPARED WITH THE
CAPITALIZATION OF NATIONAL BANKS" IN THAT STATE, THE UNCONTROVERTED
EVIDENCE SHOWS THAT IN THE YEAR IN QUESTION THE SAVINGS AND LOAN
ASSOCIATIONS IN MICHIGAN HELD A TOTAL OF $433,000,000 OF SUCH LOANS,
WHEREAS THE TOTAL CAPITALIZATION OF ALL NATIONAL BANKS IN THAT STATE
WAS $166,724,000.  AND THE 16 SAVINGS AND LOAN ASSOCIATIONS THAT WERE
MOST DIRECTLY COMPETING WITH APPELLANT HELD, IN THE SAME PERIOD,
$97,000,000 OF SUCH LOANS, WHEREAS APPELLANT'S CAPITALIZATION WAS
$13,038,000. 

CERTAINLY THESE UNDISPUTED FACTS ESTABLISH THAT "MONEYED CAPITAL" OF
SAVINGS AND LOAN ASSOCIATIONS WAS BEING USED IN VERY SIGNIFICANT
"COMPETITION WITH A SUBSTANTIAL PHASE OF THE BUSINESS OF NATIONAL
BANKS" IN MICHIGAN, AND THAT SUCH COMPETITION WAS "SUBSTANTIAL IN
AMOUNT WHEN COMPARED WITH THE CAPITALIZATION OF NATIONAL BANKS" IN THAT
STATE. 

IT THUS SEEMS ALTOGETHER CLEAR TO ME THAT THESE UNCONTROVERTED FACTS
ESTABLISH EVERY ESSENTIAL ELEMENT OF APPELLANT'S CASE.  IT CANNOT BE
DENIED THAT THE PLAIN WORDS OF SEC. 5219 PROHIBIT THE STATES FROM
TAXING THE SHARES OF NATIONAL BANKS "AT A GREATER RATE THAN IS ASSESSED
UPON OTHER MONEYED CAPITAL IN THE HANDS OF INDIVIDUAL CITIZENS OF SUCH
STATE COMING INTO COMPETITION WITH SOME SUBSTANTIAL PHASE (FN4) OF THE
BUSINESS OF NATIONAL BANKS."  YET, HERE MICHIGAN TAXED NATIONAL BANK
SHARES AT A RATE OF 55 CENTS PER $100 OF VALUE, BUT IT TAXED SAVINGS
AND LOAN SHARES AT A RATE OF ONLY 6 1/2 CENTS PER $100 OF VALUE.  DID
IT NOT PLAINLY THUS TAX NATIONAL BANK SHARES "AT A GREATER RATE" THAN
IT TAXED SAVINGS AND LOAN SHARES?  CERTAINLY THE LATTER WERE "OTHER
MONEYED CAPITAL IN THE HANDS OF INDIVIDUAL CITIZENS OF SUCH STATE." 
SEE, E.G., MERCANTILE BANK V. NEW YORK, SUPRA, AT 157; FIRST NATIONAL
BANK V. HARTFORD, SUPRA, AT 557.  DOES NOT THE UNCONTROVERTED EVIDENCE,
WHICH WE HAVE SUMMARIZED IN SOME DETAIL, SHOW THAT SUCH "OTHER MONEYED
CAPITAL" WAS USED IN MICHIGAN IN VERY SIGNIFICANT "COMPETITION WITH A
SUBSTANTIAL PHASE OF THE BUSINESS OF NATIONAL BANKS" AND THAT SUCH
COMPETITION WAS "SUBSTANTIAL IN AMOUNT WHEN COMPARED WITH THE
CAPITALIZATION OF NATIONAL BANKS" IN MICHIGAN?  DO NOT THESE FACTS
ESTABLISH EVERY ELEMENT OF APPELLANT'S CASE?  RESPONDENTS DO NOT, NOR
DOES THE COURT, POINT TO ANY ESSENTIAL ELEMENT THAT IS MISSING.  WHY,
THEN, IS APPELLANT NOT ENTITLED TO RECOVER? 

THE ONLY REASONS ADVANCED BY RESPONDENTS ARE THOSE IT SUCCESSFULLY
URGED UPON THE MICHIGAN SUPREME COURT.  EVERY ONE OF THOSE CONTENTIONS
IS OPPOSED TO THE PLAIN TERMS OF SEC. 5219 ON THE FACTS OF THIS RECORD,
AND ALSO HAS BEEN SPECIFICALLY DECIDED ADVERSELY TO RESPONDENTS, ON
SIMILAR FACTS, BY THIS COURT, AS I SHALL SHOW. 

FIRST.  RESPONDENTS ARGUE THAT, BECAUSE THEY MAY NOT RECEIVE
"DEPOSITS," CREATE "CHECKBOOK MONEY" OR ENGAGE IN "BANKING," BUT MUST
OPERATE "IN A NARROW, RESTRICTED FIELD," SAVINGS AND LOAN ASSOCIATIONS
ARE SO "DIFFERENT IN CHARACTER, PURPOSE AND ORGANIZATION FROM NATIONAL
BANKS" THAT - REGARDLESS OF THE ACTUAL FACTS SHOWN IN THIS RECORD -
THEY CANNOT, AS A MATTER OF LAW, COME "INTO COMPETITION WITH THE
BUSINESS OF NATIONAL BANKS" WITHIN THE MEANING OF SEC. 5219. 

THIS ARGUMENT, UPON ANALYSIS, COMES DOWN TO THE CONTENTION THAT THE
RESTRICTION OF SEC. 5219 WAS DIRECTED ONLY AGAINST DISCRIMINATION IN
FAVOR OF STATE BANKS.  FOR THEY, SO THE ARGUMENT RUNS, ARE THE ONLY
STATE-CREATED INSTITUTIONS THAT LAWFULLY MAY ENGAGE IN "BANKING
BUSINESS" SIMILARLY TO NATIONAL BANKS AND HENCE, RESPONDENTS CONCLUDE,
ONLY THE MONEYED CAPITAL OF STATE BANKS CAN CONSTITUTE "OTHER MONEYED
CAPITAL  ...  COMING INTO COMPETITION WITH THE BUSINESS OF NATIONAL
BANKS," WITHIN THE MEANING OF SEC. 5219. 

A SIMILAR QUESTION AROSE IN FIRST NATIONAL BANK V. ANDERSON, 269 U.S.
341.  THERE "THE DEFENDANTS TOOK THE POSITION IN THE STATE COURT THAT
THE CONGRESSIONAL RESTRICTION OF SEC. 5219 WAS DIRECTED ONLY AGAINST
DISCRIMINATION IN FAVOR OF STATE BANKING ASSOCIATIONS."  THIS COURT
SAID THE CONTENTION WAS "  ...  UNTENABLE BY REASON OF SETTLED RULINGS
TO THE CONTRARY  ...  ."  ID., AT 349.  AFTER SUMMARIZING ITS EARLIER
CASES, THE COURT DECLARED THAT "THE PURPOSE OF THE RESTRICTION IS TO
RENDER IT IMPOSSIBLE FOR ANY STATE, IN TAXING THE SHARES, TO CREATE AND
FOSTER AN UNEQUAL AND UNFRIENDLY COMPETITION WITH NATIONAL BANKS, BY
FAVORING SHAREHOLDERS IN STATE BANKS OR INDIVIDUALS INTERESTED IN
PRIVATE BANKING OR ENGAGED IN OPERATIONS AND INVESTMENTS NORMALLY
COMMON TO THE BUSINESS OF BANKING.  MERCANTILE NATIONAL BANK V. NEW
YORK, 121 U.S. 138, 155; DES MOINES NATIONAL BANK V. FAIRWEATHER, SUPRA
263 U.S. 103, 116."  269 U.S., AT 347-348.  AND IT HELD THAT "MONEYED
CAPITAL IS BROUGHT INTO SUCH COMPETITION NOT ONLY WHERE IT IS INVESTED
IN SHARES OF STATE BANKS OR IN PRIVATE BANKING  ...  BUT ALSO WHERE IT
IS EMPLOYED, SUBSTANTIALLY AS IN THE LOAN AND INVESTMENT FEATURES OF
BANKING, IN MAKING INVESTMENTS, BY WAY OF LOAN, DISCOUNT OR OTHERWISE,
IN NOTES, BONDS OR OTHER SECURITIES WITH A VIEW TO SALE OR REPAYMENT
AND REINVESTMENT.  MERCANTILE NATIONAL BANK V. NEW YORK, SUPRA, 155
157; PALMER V. MCMAHON, 133 U.S. 660, 667-668; TALBOT V. SILVER BOW
COUNTY, 139 U.S. 438, 447."  269 U.S., AT 348. 

RESPONDENTS' CONTENTION THAT "OTHER MONEYED CAPITAL" DOES NOT COME
INTO COMPETITION WITH THE BUSINESS OF NATIONAL BANKS UNLESS IT IS
EMPLOYED IN A BUSINESS SUBSTANTIALLY IDENTICAL WITH ALL PHASES OF THE
BUSINESS CARRIED ON BY NATIONAL BANKS WAS SQUARELY MET AND REJECTED BY
THIS COURT, IN WORDS ABOUT AS PLAIN AS IT IS POSSIBLE TO CONCEIVE, IN
FIRST NATIONAL BANK V. HARTFORD, SUPRA. THERE, THE WISCONSIN SUPREME
COURT "APPARENTLY CONSTRUED THE DECISIONS OF THIS COURT AS REQUIRING
EQUALITY IN TAXATION ONLY OF MONEYED CAPITAL INVESTED IN BUSINESSES
SUBSTANTIALLY IDENTICAL WITH THE BUSINESS CARRIED ON BY NATIONAL
BANKS.  CONSEQUENTLY, SINCE THAT CLASS OF BUSINESS MUST UNDER THE
WISCONSIN STATUTES BE CARRIED ON IN CORPORATE FORM AND CAPITAL INVESTED
IN IT IS TAXED AT THE SAME RATE AS NATIONAL BANK SHARES, OTHER MONEYED
CAPITAL, AS DEFINED IN SEC. 5219, WITHIN THE STATE, IT THOUGHT, WAS NOT
FAVORED."  273 U.S., AT 555-556.  THAT VIEW, IF LOGICALLY PURSUED,
WOULD MEAN THAT "OTHER MONEYED CAPITAL" INVESTED IN BUSINESSES ENGAGED
IN SOME BUT NOT ALL OF THE ACTIVITIES OF NATIONAL BANKS COULD NOT BE
CONSIDERED IN DETERMINING THE QUESTION OF COMPETITION.  IN REJECTING
THAT CONTENTION, THIS COURT SAID: 

"BUT THIS COURT HAS RECENTLY HAD OCCASION, IN REVIEWING THE EARLIER
DECISIONS DEALING WITH THIS SUBJECT, TO POINT OUT THAT THE REQUIREMENT
OF APPROXIMATE EQUALITY IN TAXATION IS NOT LIMITED TO INVESTMENT OF
MONEYED CAPITAL IN SHARES OF STATE BANKS OR TO COMPETING CAPITAL
EMPLOYED IN PRIVATE BANKING.  THE RESTRICTION APPLIES AS WELL WHERE THE
COMPETITION EXISTS ONLY WITH RESPECT TO PARTICULAR FEATURES OF THE
BUSINESS OF NATIONAL BANKS OR WHERE MONEYED CAPITAL 'IS EMPLOYED,
SUBSTANTIALLY AS IN THE LOAN AND INVESTMENT FEATURES OF BANKING, IN
MAKING INVESTMENTS BY WAY OF LOAN, DISCOUNT OR OTHERWISE, IN NOTES,
BONDS OR OTHER SECURITIES, WITH A VIEW TO SALE OR REPAYMENT AND
REINVESTMENT.'  FIRST NATIONAL BANK V. ANDERSON, SUPRA, 348.  IN SO
DOING, IT FOLLOWED THE HOLDING IN MERCANTILE BANK V. NEW YORK, 121 U.S.
138, 157  ...  ."  273 U.S., AT 556. 

THE COURT THEN PROCEEDED TO DECLARE THE LAW IN SUCH CLEAR AND RINGING
TERMS AS HAVE SETTLED THE QUESTION FOR THE INTERVENING 34 YEARS - FROM
1927 UNTIL TODAY.  IT SAID: 

"COMPETITION MAY EXIST BETWEEN OTHER MONEYED CAPITAL AND CAPITAL
INVESTED IN NATIONAL BANKS, SERIOUS IN CHARACTER AND THEREFORE WELL
WITHIN THE PURPOSE OF SEC. 5219, EVEN THOUGH THE COMPETITION BE WITH
SOME BUT NOT ALL PHASES OF THE BUSINESS OF NATIONAL BANKS.  SECTION
5219 IS NOT DIRECTED MERELY AT DISCRIMINATORY TAXATION WHICH FAVORS A
COMPETING BANKING BUSINESS.  COMPETITION IN THE SENSE INTENDED ARISES
NOT FROM THE CHARACTER OF THE BUSINESS OF THOSE WHO COMPETE BUT FROM
THE MANNER OF THE EMPLOYMENT OF THE CAPITAL AT THEIR COMMAND.  NO
DECISION OF THIS COURT APPEARS TO HAVE SO QUALIFIED SEC. 5219 AS TO
PERMIT DISCRIMINATION IN TAXATION IN FAVOR OF MONEYED CAPITAL SUCH AS
IS HERE CONTENDED FOR.  TO SO RESTRICT THE MEANING AND APPLICATION OF
SEC. 5219 WOULD DEFEAT ITS PURPOSE.  IT WAS INTENDED TO PREVENT THE
FOSTERING OF UNEQUAL COMPETITION WITH THE BUSINESS OF NATIONAL BANKS BY
THE AID OF DISCRIMINATORY TAXATION IN FAVOR OF CAPITAL INVESTED BY
INSTITUTIONS OR INDIVIDUALS ENGAGED EITHER IN SIMILAR BUSINESSES OR IN
PARTICULAR OPERATIONS OR INVESTMENTS LIKE THOSE OF NATIONAL BANKS  ...
.  OUR CONCLUSION IS THAT SEC. 5219 IS VIOLATED WHEREVER CAPITAL,
SUBSTANTIAL IN AMOUNT WHEN COMPARED WITH THE CAPITALIZATION OF NATIONAL
BANKS, IS EMPLOYED EITHER IN A BUSINESS OR BY PRIVATE INVESTORS IN THE
SAME SORT OF TRANSACTIONS AS THOSE IN WHICH NATIONAL BANKS ENGAGE AND
IN THE SAME LOCALITY IN WHICH THEY DO BUSINESS."  273 U.S., AT 557
558. 

IDENTICAL CONCLUSIONS WERE AGAIN ANNOUNCED BY THE COURT ON THE SAME
DAY IN MINNESOTA V. FIRST NATIONAL BANK, 273 U.S. 561.  (FN5) 

HERE, THERE IS NO QUESTION ABOUT THE FACT THAT THE MAKING OF
RESIDENTIAL MORTGAGE LOANS WAS A SUBSTANTIAL PHASE OF THE BUSINESS OF
NATIONAL BANKS IN MICHIGAN.  SUCH LOANS AMOUNTED TO $301,000,000 AND
CONSTITUTED 30% OF THEIR TOTAL LOANS AND DISCOUNTS.  NOR CAN THERE BE
ANY QUESTION ABOUT THE FACT THAT MONEYED CAPITAL OF SAVINGS AND LOAN
ASSOCIATIONS WAS BEING USED IN SIGNIFICANT COMPETITION WITH THE
RESIDENTIAL MORTGAGE LOAN PHASE OF THE BUSINESS OF NATIONAL BANKS IN
MICHIGAN.  THOSE LOAN ASSOCIATIONS HELD $433,000,000 OF SUCH LOANS. 
THAT AMOUNT WAS CERTAINLY SUBSTANTIAL "WHEN COMPARED WITH THE
CAPITALIZATION OF NATIONAL BANKS" IN MICHIGAN OF $166,724,000.  THESE
FACTS, UNDER THE RULE OF THE HARTFORD AND MINNESOTA CASES, WOULD SEEM
TO LEAVE NO DOUBT THAT APPELLANT'S SHARES WERE DISCRIMINATORILY TAXED
IN VIOLATION OF SEC. 5219. 

SECOND.  RESPONDENTS ARGUE THAT SAVINGS AND LOAN ASSOCIATIONS ARE
SIMILAR IN CHARACTER AND PURPOSE TO THE, NOW LARGELY HISTORICAL, SMALL
MUTUAL SAVINGS BANKS THAT WERE COMMON IN THE LAST CENTURY.  ON THAT
ASSUMPTION, THEY ARGUE THAT INASMUCH AS THIS COURT HAS HELD THAT
TAXATION OF NATIONAL BANK SHARES AT A GREATER RATE THAN WAS ASSESSED
AGAINST SUCH MUTUAL SAVINGS BANKS DID NOT OFFEND SEC. 5219 (SEE, E.G.,
MERCANTILE BANK V. NEW YORK, 121 U.S. 138 (1887); DAVENPORT BANK V.
DAVENPORT BOARD OF EQUALIZATION, 123 U.S. 83 (1887); BANK OF REDEMPTION
V. BOSTON, 125 U.S. 60 (1888); ABERDEEN BANK V. CHEHALIS COUNTY, 166
U.S. 440 (1897)), IT SHOULD FOLLOW THAT THE TAXATION OF NATIONAL BANK
SHARES AT A GREATER RATE THAN SAVINGS AND LOAN SHARES DOES NOT OFFEND
THE STATUTE. 

THAT ARGUMENT, TOO, WAS SPECIFICALLY ANSWERED BY THE HARTFORD CASE. 
WITH UNMISTAKABLE REFERENCE TO THOSE CASES, THE COURT SAID:  "SOME OF
THE CASES DEALING WITH THE TECHNICAL SIGNIFICANCE OF THE TERM
COMPETITION IN THIS FIELD WERE DECIDED BEFORE NATIONAL BANKS WERE
PERMITTED TO INVEST IN MORTGAGES AS THEY ARE NOW.  ACT OF DECEMBER 23,
1913, C. 6, SEC. 24, 38 STAT. 251, 273; ACT OF SEPTEMBER 7, 1916, C.
461, 39 STAT. 752, 754; ACT OF FEBRUARY 25, 1927, SEC. 24.  (FN6)  AND
OTHERS GO NO FURTHER THAN TO HOLD THAT IN THE ABSENCE OF ALLEGATION AND
PROOF OF COMPETITION WITH NATIONAL BANKING CAPITAL, IT CANNOT BE SAID
THAT AN OFFENDING DISCRIMINATION EXISTS."  273 U.S., AT 558.  THEN,
SQUARELY REJECTING THE THEORY OF RESPONDENTS' ARGUMENT, THE COURT
SAID:    "WITH THE GREAT INCREASE IN INVESTMENTS BY INDIVIDUALS AND THE
GROWTH OF CONCERNS ENGAGED IN PARTICULAR PHASES OF BANKING SHOWN BY THE
EVIDENCE IN THIS CASE AND IN MINNESOTA V. FIRST NATIONAL BANK OF ST.
PAUL, TODAY DECIDED, POST, P. 561, DISCRIMINATION WITH RESPECT TO
CAPITAL THUS USED COULD READILY BE CARRIED TO A POINT WHERE THE
BUSINESS OF NATIONAL BANKS WOULD BE SERIOUSLY CURTAILED.  OUR
CONCLUSION IS THAT SEC. 5219 IS VIOLATED WHEREVER CAPITAL, SUBSTANTIAL
IN AMOUNT WHEN COMPARED WITH THE CAPITALIZATION OF NATIONAL BANKS, IS
EMPLOYED EITHER IN A BUSINESS OR BY PRIVATE INVESTORS IN THE SAME SORT
OF TRANSACTIONS AS THOSE IN WHICH NATIONAL BANKS ENGAGE AND IN THE SAME
LOCALITY IN WHICH THEY DO BUSINESS."  273 U.S., AT 558. 

SURELY NOTHING MORE NEED BE SAID. 

THIRD.  RESPONDENTS ARGUE THAT INASMUCH AS THIS COURT HAS HELD THAT A
STATE MAY ENTIRELY EXEMPT SOME ENTITIES OR ACTIVITIES FROM TAXATION -
I.E., CHURCHES, CHARITIES, SMALL MUTUAL SAVINGS BANKS, MUNICIPAL BONDS,
AND THE LIKE - WITHOUT OFFENDING SEC. 5219 (SEE, E.G., HEPBURN V.
SCHOOL DIRECTORS, 23 WALL.  480; ADAMS V. NASHVILLE, 95 U.S. 19;
MERCANTILE BANK V. NEW YORK, SUPRA; DAVENPORT BANK V. DAVENPORT BOARD
OF EQUALIZATION, SUPRA; BANK OF REDEMPTION V. BOSTON, SUPRA; ABERDEEN
BANK V. CHEHALIS COUNTY, SUPRA), IT FOLLOWS THAT A STATE MAY PREFER THE
SHARES OF SAVINGS AND LOAN ASSOCIATIONS, BY GRANTING THEIR OWNERS A
LOWER TAX RATE THAN IT GRANTS TO THE OWNERS OF SHARES OF NATIONAL BANKS
- EVEN THOUGH THE FORMER ARE USED IN SIGNIFICANT COMPETITION WITH A
SUBSTANTIAL PHASE OF THE BUSINESS OF THE LATTER - WITHOUT THEREBY
VIOLATING SEC. 5219. 

DESPITE THE STRONGEST OF IMPLICATIONS TO THE CONTRARY, WE HAVE NO
OCCASION HERE TO CONSIDER WHETHER THE STATE MIGHT, UNDER CONDITIONS
SHOWN BY THIS RECORD, ENTIRELY EXEMPT THE SHARES OF SAVINGS AND LOAN
ASSOCIATIONS FROM TAXATION, WHILE TAXING THE SHARES OF NATIONAL BANKS,
FOR IT HAS NOT DONE SO.  THE STATE TAXES SAVINGS AND LOAN SHARES,
ALTHOUGH AT ONLY ABOUT 1/8 OF THE RATE IT LEVIES ON NATIONAL BANK
SHARES. 

IN THESE CIRCUMSTANCES, RESPONDENTS' ARGUMENT RUNS IN THE VERY TEETH
OF THIS COURT'S HOLDING IN THE HARTFORD CASE THAT "COMPETITION IN THE
SENSE INTENDED BY SEC. 5219 ARISES NOT FROM THE CHARACTER OF THE
BUSINESS OF THOSE WHO COMPETE BUT FROM THE MANNER OF THE EMPLOYMENT OF
THE CAPITAL AT THEIR COMMAND" (273 U.S., AT 557), AND "THAT SEC. 5219
IS VIOLATED WHEREVER CAPITAL, SUBSTANTIAL IN AMOUNT WHEN COMPARED WITH
THE CAPITALIZATION OF NATIONAL BANKS, IS EMPLOYED EITHER IN A BUSINESS
OR BY PRIVATE INVESTORS IN THE SAME SORT OF TRANSACTIONS AS THOSE IN
WHICH NATIONAL BANKS ENGAGE AND IN THE SAME LOCALITY IN WHICH THEY DO
BUSINESS."  273 U.S., AT 558.  A MORE DIRECT AND CONCLUSIVE ANSWER
CANNOT READILY BE PERCEIVED. 

FOURTH.  RESPONDENTS ARGUE, AND THE COURT AGREES, THAT WHEN THE VALUE
OF THE TOTAL ASSETS, RATHER THAN THE VALUE OF THE SHARES, OF THE TWO
TYPES OF FINANCIAL INSTITUTIONS IS CONSIDERED, THE RATIO OF THE TOTAL
DOLLAR TAX BURDEN TO TOTAL ASSETS IS APPROXIMATELY THE SAME IN MICHIGAN
- .091 FOR BANKS AND .089 FOR SAVINGS AND LOAN ASSOCIATIONS - AND
THEREFORE NATIONAL BANK SHARES ARE NOT REALLY TAXED AT A GREATER RATE
THAN SAVINGS AND LOAN SHARES. 

THIS BRINGS US TO THE HEART OF OUR DISAGREEMENT WITH THE COURT. 
AFTER CORRECTLY OBSERVING THAT "THERE ARE OTHER CONSIDERATIONS THAN
RATES TO BE WEIGHED IN DETERMINING THE ACTUAL BURDEN OF THE TAX, ONE OF
WHICH IS THE MODE OF VALUING BANK SHARES - BY ADOPTING 'BOOK VALUES'
(CAPITAL, SURPLUS AND UNDIVIDED PROFITS) - WHICH MAY BE MORE OR LESS
FAVORABLE THAN THE METHOD ADOPTED IN VALUING OTHER KINDS OF PERSONAL
PROPERTY," AMOSKEAG SAVINGS BANK V. PURDY, 231 U.S. 373, 392; SEE ALSO
HEPBURN V. SCHOOL DIRECTORS, 23 WALL.  480, 484; TRADESMENS NATIONAL
BANK V. OKLAHOMA TAX COMM'N, 309 U.S. 560, 567, AND THAT IT IS NOT THE
RATE ALONE BUT THE PRACTICAL EFFECT OF THE TAX THAT DETERMINES WHETHER
THERE IS DISCRIMINATION, THE COURT SAYS:  "IT IS OBVIOUS THAT THE
TAXABLE VALUE OF THE SHARES IN THESE TWO TYPES OF FINANCIAL
INSTITUTIONS IS DETERMINED BY DIFFERENT METHODS  ...  ."  THIS
CONCLUSION IS DEMONSTRABLY WRONG.  IN PLAIN AND SIMPLE TERMS ACT 9
PROVIDES THAT THE VALUE OF BANK SHARES "SHALL BE DETERMINED BY DIVIDING
SUCH CAPITAL ACCOUNT (CAPITAL, SURPLUS AND UNDIVIDED PROFITS) BY THE
NUMBER OF SHARES OF SUCH COMMON STOCK  ...  ."  (SEE NOTE 2), AND THE
SHARES OF SAVINGS AND LOAN ASSOCIATIONS ARE VALUED AT THE "PAID-IN
VALUE."  IN EACH CASE, THEREFORE, CORPORATE LIABILITIES ARE DEDUCTED
AND THE TAX IS IMPOSED UPON THE BOOK VALUE OF THE SHARES.  HENCE, IT
COULD HARDLY BE PLAINER "THAT THE TAXABLE VALUE OF THE SHARES IN THESE
TWO TYPES OF FINANCIAL INSTITUTIONS IS DETERMINED BY" EXACTLY THE SAME,
NOT "DIFFERENT," METHODS.  ONE CANNOT PROFITABLY ELABORATE A TRUTH SO
SIMPLE. 

THEN, THE COURT COMES TO THE REAL BASIS OF ITS DECISION.  IT SAYS
"MICHIGAN'S SYSTEM LOOKS TO THE MONEYED CAPITAL CONTROLLED BY THE
SHAREHOLDER.  IF IT IS A SHARE IN A BANK - EITHER FEDERAL OR STATE -
THE LEGISLATURE CONSIDERS THE DEPOSITS AVAILABLE FOR INVESTMENT AND
FIXES A RATE COMMENSURATE WITH THAT INCREASED EARNING AND INVESTMENT
POWER OF THE SHAREHOLDER"; THAT "A DOLLAR INVESTED IN NATIONAL BANK
SHARES CONTROLS MANY MORE DOLLARS OF MONEYED CAPITAL, THE MEASURING ROD
OF SEC. 5219.  ON THE OTHER HAND, THE SAME DOLLAR INVESTED IN A SAVINGS
AND LOAN SHARE CONTROLS NO MORE MONEYED CAPITAL THAN ITS FACE VALUE. 
THE BANK SHARE HAS THE POWER AND CONTROL OF ITS PROPORTIONATE INTEREST
IN ALL OF THE MONEY AVAILABLE TO THE BANK FOR INVESTMENT PURPOSES.  IN
THE CASE OF MICHIGAN NATIONAL, THIS CONTROL IS MORE THAN 21 TIMES
GREATER THAN THE SHARE'S PROPORTIONATE INTEREST IN THE CAPITAL STOCK,
SURPLUS AND UNDIVIDED PROFITS"; THAT "SINCE MICHIGAN NATIONAL'S SHARE
OWNER'S INVESTMENT HAS THE EQUIVALENT PROFIT-MAKING POWER OF AN AMOUNT
21 TIMES GREATER THAN ITSELF AND THE INVESTOR IN SAVINGS AND LOAN
SHARES  ...  HAS NO SIMILARLY MULTIPLIED POWER, THE NATIONAL BANK SHARE
WOULD NOT BE 'UNFAVORABLY' TREATED UNLESS IT WAS TAXED IN EXCESS OF 21
TIMES THE LEVY ON SAVINGS AND LOAN SHARES ...  .  HERE THE RATIO IS
ONLY 13.8 TO ONE  ...  ." 

I RESPECTFULLY SUBMIT THAT THIS IS AN EGREGIOUS ERROR.  NOTHING IN
THE MICHIGAN STATUTE PROVIDES OR CONTEMPLATES THAT THE AMOUNT OF
CAPITAL "CONTROLLED" BY THE SHARES OF A NATIONAL BANK, OR THE AMOUNT OF
THE BANK'S "DEPOSITS," IS A RELEVANT FACTOR IN DETERMINING THE VALUE OF
BANK SHARES FOR THE PURPOSES OF THIS TAX.  NOR ARE "INCREASED VALUES TO
THE SHAREHOLDER," BY REASON OF CAPITAL "CONTROLLED" BY THE BANK OR ITS
"DEPOSITS," MADE RELEVANT FACTORS.  QUITE SPECIFICALLY TO THE CONTRARY,
ACT 9 PROVIDES THAT "'CAPITAL ACCOUNT' AS REFERRED TO HEREIN SHALL BE
DETERMINED BY ADDING THE COMMON CAPITAL, SURPLUS AND UNDIVIDED PROFITS
ACCOUNTS  ...  , AND THE DOLLAR AMOUNT OF THE CAPITAL ACCOUNT
REPRESENTED BY EACH SHARE OF ITS COMMON STOCK SHALL BE DETERMINED BY
DIVIDING SUCH CAPITAL ACCOUNT BY THE NUMBER OF SHARES OF SUCH COMMON
STOCK  ...  ."  HOW COULD IT MORE PLAINLY BE SAID THAT BANK SHARES MUST
BE VALUED, FOR THE PURPOSES OF THIS TAX, SOLELY UPON THEIR BOOK VALUE -
WITHOUT REGARD TO THE BANK'S "DEPOSITS" OR TO THE CAPITAL "CONTROLLED
BY THE SHAREHOLDER"?  IT IS SURELY CLEAR THAT THE MICHIGAN TAX IS NOT
IMPOSED UPON NATIONAL BANKS OR UPON THEIR ASSETS; INSTEAD, IT IS
IMPOSED UPON THE OWNERS OF THE BANK'S SHARES, MEASURED SOLELY BY THE
VALUE OF THOSE SHARES - "DETERMINED BY DIVIDING THE CAPITAL ACCOUNT BY
THE NUMBER OF SHARES OF SUCH COMMON STOCK."  SEE NOTE 2. 

RESPONDENTS' ARGUMENT, AND THE COURT'S DECISION, PUT OUT OF
CONSIDERATION THE LIABILITY OF NATIONAL BANKS TO REPAY THEIR DEPOSITS
AND OTHER DEBTS, AND WOULD IMPOSE THE TAX ON THEIR GROSS ASSETS, IN
DIRECT OPPOSITION TO THE PLAIN TERMS OF THE MICHIGAN STATUTE. 

PRECISELY THE SAME ARGUMENT WAS REJECTED BY THIS COURT IN MINNESOTA V.
FIRST NATIONAL BANK, SUPRA:

"PETITIONER ARGUES THAT IN ITS ACTUAL OPERATION, THE TAX ON NATIONAL
BANK SHARES IS NO GREATER THAN THE TAX ON CREDITS, SINCE UNDER THE
STATUTE INDIVIDUALS ARE TAXED AT THE RATE OF THREE MILLS UPON THE FULL
VALUE OF THEIR CREDITS WITHOUT DEDUCTING THEIR LIABILITIES, WHEREAS IN
TAXING BANK SHARES, THE LIABILITIES OF THE BANKS ARE DEDUCTED FROM
THEIR ASSETS IN ASCERTAINING THE FORTY PER CENT. VALUATION OF THEIR
SHARES.  THEREFORE, IT IS URGED, IF BANK SHARES WERE TAXED AT THE SAME
RATE WITHOUT DEDUCTING THE BANK'S LIABILITIES IN ASCERTAINING THE VALUE
OF THEIR SHARES, THE AMOUNT OF THE TAX WOULD BE APPROXIMATELY THE
SAME.  THIS ARGUMENT IGNORES THE FACT THAT THE TAX AUTHORIZED BY SEC.
5219 IS AGAINST THE HOLDERS OF THE BANK SHARES AND IS MEASURED BY THE
VALUE OF THE SHARES, AND NOT BY THE ASSETS OF THE BANK WITHOUT
DEDUCTION OF ITS LIABILITIES, DES MOINES NATIONAL BANK V. FAIRWEATHER,
263 U.S. 103  ...  ."  273 U.S., AT 564. 

IT WOULD INDEED BE NOVEL, EVEN IN THE ABSENCE OF THE CONTRARY
PROVISIONS OF ACT 9, TO ADD LIABILITIES TO ASSETS IN DETERMINING BOOK
VALUE OF CORPORATE SHARES - A SIMPLE CONTRADICTION IN TERMS.  IT IS
LIKEWISE IDLE TO OBSERVE THE OBVIOUS FACT THAT SAVINGS AND LOAN
ASSOCIATIONS HAVE NO "DEPOSITS," AND HENCE NO DEPOSIT LIABILITIES TO
DEDUCT, (FN7) OR TO ARGUE THAT THEY, IN VALUING THEIR SHARES FOR THE
PURPOSES OF THIS TAX, SHOULD BE ALLOWED TO DEDUCT THE AMOUNTS PAID IN
BY THEIR "SHAREHOLDERS" FOR THEIR "SHARES," AS THE RESULTING FIGURE
WOULD BE ZERO, AND THE EFFECT WOULD BE TO TAX THOSE SHARES ONLY IN
FICTION.  NOTHING IN EITHER ACT 9 OR IN SEC. 5219 AUTHORIZES SUCH
DOUBLE TALK. 

HERE, MICHIGAN VALUES NATIONAL BANK SHARES AND SAVINGS AND LOAN
ASSOCIATION SHARES, FOR THE PURPOSES OF THIS TAX, BY EXACTLY THE SAME
METHOD, I.E., THE VALUE OF THE SHARES.  YET IT TAXES BANK SHARES AT A
RATE OF 55 CENTS PER $100 OF THEIR VALUE, WHILE TAXING SAVINGS AND LOAN
SHARES AT 6 1/2 CENTS PER $100 OF THEIR VALUE.  DOES NOT THAT CONDUCT
VIOLATE THE PROVISION OF SEC. 5219 THAT NATIONAL BANK SHARES "SHALL NOT
BE TAXED AT A GREATER RATE THAN IS ASSESSED UPON OTHER MONEYED CAPITAL
...  COMING INTO COMPETITION WITH THE BUSINESS OF NATIONAL BANKS"? 

IF THE COURT'S ARGUMENT, THAT A TAX UPON THE BANK'S "DEPOSITS" AT THE
RATE APPLIED TO THE SHARES OF SAVINGS AND LOAN ASSOCIATIONS WOULD
PRODUCE A GREATER TAX THAN RESULTS FROM APPLICATION OF THE HIGHER BANK
SHARE RATE TO THE VALUE OF ITS SHARES, HAS ANY RELEVANCE TO ANY ISSUE
IN THIS CASE, IT CAN ONLY BE TO DEMONSTRATE THAT INCLUDING "DEPOSITS"
IN THE VALUATION OF BANK SHARES WOULD BE TO TAX NOT JUST THE BANK'S
"SHARES," AS AUTHORIZED BY SEC. 5219, BUT BOTH THE "SHARES" AND THE
"DEPOSITS" OF THE BANK, AND NOT AT THE LOWER RATE APPLICABLE TO SAVINGS
AND LOAN SHARES BUT AT THE EIGHT TIMES HIGHER ONE APPLICABLE TO THE
SHARES OF NATIONAL BANKS.  SIMILARLY, THE COURT'S ARGUMENT THAT
APPELLANT, DESPITE THIS TAX DISCRIMINATION, HAS PHENOMENALLY PROSPERED
SEEMS WHOLLY IRRELEVANT, FOR THE CRITERION OF SEC. 5219 IS NOT WHETHER
NATIONAL BANKS MAY PROSPER, DESPITE STATE TAX DISCRIMINATION, BUT IS
RATHER THAT THEIR SHARES "SHALL NOT BE TAXED AT A GREATER RATE THAN IS
ASSESSED UPON OTHER MONEYED CAPITAL  ...  COMING INTO COMPETITION WITH
THE BUSINESS OF NATIONAL BANKS."  BUT, IF THE COURT'S ARGUMENT HAS ANY
RELEVANCE, IT SHOULD BE OBSERVED THAT MICHIGAN NATIONAL BANKS HAVE NOT
INCREASED ASSETS PROPORTIONATELY TO SAVINGS AND LOAN ASSOCIATIONS IN
THAT STATE SINCE THE PASSAGE OF ACT 9 IN 1953, FOR THE AMOUNT OF
RESIDENTIAL MORTGAGE LOANS THEN HELD BY SUCH ASSOCIATIONS IN THAT STATE
OF $433,000,000 HAS NOW GROWN TO $1,700,000,000. 

FINALLY, RESPONDENTS ARGUE THAT CONGRESS, IN RESTRICTING STATE
TAXATION OF FEDERAL SAVINGS AND LOAN ASSOCIATIONS TO A RATE NOT
"GREATER THAN THAT IMPOSED BY SUCH AUTHORITY ON OTHER SIMILAR LOCAL
MUTUAL OR COOPERATIVE THRIFT AND HOME FINANCING INSTITUTIONS," 12
U.S.C. SEC. 1464(H), EVIDENCED ITS UNDERSTANDING AND INTENTION THAT
SAVINGS AND LOAN SHARES MIGHT BE TAXED AT A LOWER RATE THAN THE SHARES
OF NATIONAL BANKS, AND THUS IMPLIEDLY REPEALED OR MODIFIED SEC. 5219 SO
FAR AS COMPETITION WITH THE BUSINESS OF NATIONAL BANKS FROM THAT SOURCE
IS CONCERNED. 

THERE IS NO BASIS FOR AN ASSUMPTION THAT CONGRESS, IN SO RESTRICTING
STATE TAXATION OF FEDERAL SAVINGS AND LOAN ASSOCIATIONS, INTENDED, SO
LIGHTLY AND COLLATERALLY, TO REPEAL OR MODIFY SEC. 5219 BY
IMPLICATION.  IT IS OBVIOUS THAT, BY SEC. 1464(H), CONGRESS ONLY
RESTRICTED STATE TAXATION OF FEDERAL SAVINGS AND LOAN ASSOCIATIONS TO A
RATE NOT GREATER THAN THAT ASSESSED BY THE STATE AGAINST SIMILAR STATE
ASSOCIATIONS.  THEREFORE, IF, AS SEEMS ENTIRELY CLEAR FROM SEC. 5219
AND OUR CASES, A STATE MAY NOT TAX NATIONAL BANK SHARES AT A GREATER
RATE THAN IT TAXES STATE SAVINGS AND LOAN ASSOCIATION SHARES, WHEN THE
LATTER ARE USED IN SIGNIFICANT COMPETITION WITH A SUBSTANTIAL PHASE OF
THE FORMER'S BUSINESS, IT ACCORDINGLY MAY NOT TAX NATIONAL BANK SHARES
AT A GREATER RATE THAN IT TAXES THE SHARES OF FEDERAL SAVINGS AND LOAN
ASSOCIATIONS WHICH ARE SIMILARLY COMPETING WITH A SUBSTANTIAL PHASE OF
THE BUSINESS OF NATIONAL BANKS.  FOR IT MAY NOT, IN SUCH CIRCUMSTANCES,
LAWFULLY PREFER EITHER OVER NATIONAL BANK SHARES WITH WHICH THEY SO
COMPETE.  IN OTHER WORDS, BY SEC. 1464(H), CONGRESS RESTRICTED THE
STATES FROM TAXING FEDERAL SAVINGS AND LOAN ASSOCIATIONS AT A GREATER
RATE THAN STATE SAVINGS AND LOAN ASSOCIATIONS, AND BY SEC. 5219 IT
RESTRICTED THE STATES FROM TAXING NATIONAL BANK SHARES AT A GREATER
RATE THAN THEY ASSESS "UPON OTHER MONEYED CAPITAL  ...  COMING INTO
COMPETITION WITH THE BUSINESS OF NATIONAL BANKS."  HENCE, IF A STATE
TAXES NATIONAL BANK SHARES AT A GREATER RATE THAN IT ASSESSES AGAINST
THE "MONEYED CAPITAL" OF SAVINGS AND LOAN ASSOCIATIONS - STATE OR
FEDERAL - WHICH IS USED IN SIGNIFICANT COMPETITION WITH A SUBSTANTIAL
PHASE OF THE BUSINESS OF SUCH BANKS, IT VIOLATES SEC. 5219.  THAT IS
EXACTLY WHAT MIGHIGAN HAS DONE HERE.    THE PROPER INTERPRETATION AND
APPLICATION OF SEC. 5219 TO PARTICULAR FACT SITUATIONS HAS BEEN
HAMMERED OUT BY THE DECISIONS OF THIS COURT, CASE BY CASE, OVER THE
COURSE OF NEARLY A CENTURY.  THEY HAVE SQUARELY MET AND DECIDED,
ADVERSELY TO RESPONDENTS, EVERY QUESTION IN THIS CASE.  FINALLY, THE
HARTFORD AND MINNESOTA CASES BROUGHT A SETTLED PEACE TO THIS FIELD THAT
HAS ENDURED UNTIL TODAY - FOR 34 YEARS.  THE OBVIOUS REASON, I SUBMIT,
IS THAT THEY ARE RIGHT.  THERE IS, I RESPECTFULLY SUBMIT, NO CALL OR
REASON TO DEPART OR DEFACE THOSE CASES.  AND DOING EITHER WILL ONLY
AGAIN UNSETTLE THE LAW IN A FIELD WHERE CERTAINTY OF THE APPLICABLE
RULES IS NEARLY AS IMPORTANT AS THEIR SUBSTANCE. 

UNDER THE LAW, SETTLED FOR AT LEAST THE LAST 34 YEARS, APPELLANT HAS
PROVED EVERY ELEMENT OF ITS CASE, AND IS ENTITLED TO RECOVER.  I WOULD
THEREFORE REVERSE THE JUDGMENT. 

FN1  APPELLANT'S MAIN BANK IS LOCATED IN THE CITY OF LANSING.  IT
MAINTAINS BRANCH BANKS IN THE CITIES OF BATTLE CREEK, FLINT, GRAND
RAPIDS, MARSHALL, PORT HURON AND SAGINAW. 

FN2  ACT 9 CONTAINS A FURTHER RELEVANT PROVISION WHICH, IN PERTINENT
PART, READS: 

"'CAPITAL ACCOUNT' AS REFERRED TO HEREIN SHALL BE DETERMINED BY
ADDING THE COMMON CAPITAL, SURPLUS AND UNDIVIDED PROFITS ACCOUNTS  ...
, AND THE DOLLAR AMOUNT OF THE CAPITAL ACCOUNT REPRESENTED BY EACH
SHARE OF ITS COMMON STOCK SHALL BE DETERMINED BY DIVIDING SUCH CAPITAL
ACCOUNT BY THE NUMBER OF SHARES OF SUCH COMMON STOCK  ...  ." 

FN3  IN FIRST NATIONAL BANK V. HARTFORD, 273 U.S. 548, 556, 557, THIS
COURT HELD THE PHRASE "SOME SUBSTANTIAL PHASE," IN THE CONTEXT HERE
USED, TO BE IMPLICIT IN SEC. 5219. 

FN4  SEE NOTE 3. 

FN5  SINCE THIS COURT'S DECISIONS IN FIRST NATIONAL BANK V. HARTFORD,
SUPRA, AND MINNESOTA V. FIRST NATIONAL BANK, SUPRA, IN 1927, SEVERAL
PROPOSALS TO LIMIT STATE TAXES ON NATIONAL BANK SHARES TO SUCH AS ARE
IMPOSED BY THE STATE ON STATE BANKS - THUS PERMITTING OTHER COMPETING
MONEYED CAPITAL, INCLUDING THAT OF SAVINGS AND LOAN ASSOCIATIONS, TO BE
TAXED AT A LOWER RATE BY THE STATE - HAVE BEEN MADE TO AND REJECTED BY
CONGRESS.  HEARINGS BEFORE THE SENATE BANKING AND CURRENCY COMMITTEE ON
S. 1573, 70TH CONG., 1ST SESS. (1928); HEARINGS ON H.R. 8727 BEFORE THE
HOUSE COMMITTEE ON BANKING AND CURRENCY, 70TH CONG., 1ST SESS. (1928);
S. 3009, 73D CONG., 2D SESS.; H.R. 9045, 73D CONG., 2D SESS. 

FN6  A HISTORICAL REVIEW OF SEC. 24, FEDERAL RESERVE ACT (12 U.S.C.
SEC. 371), WHICH PRESCRIBED THE AUTHORITY OF NATIONAL BANKS TO MAKE
REAL ESTATE MORTGAGE LOANS, REVEALS THAT, PRIOR TO 1916, NATIONAL BANKS
WERE NOT AUTHORIZED TO LOAN MONEY ON THE SECURITY OF REAL ESTATE, WITH
THE EXCEPTION OF CERTAIN FARM LAND.  BY THE ACT OF SEPTEMBER 7, 1916
(39 STAT. 754), CONGRESS FIRST AUTHORIZED NATIONAL BANKS TO MAKE
RESIDENTIAL MORTGAGE LOANS, BUT LIMITED THEM TO AN AMOUNT NOT EXCEEDING
50% OF THE ACTUAL VALUE OF THE PROPERTY AND TO RUN FOR A TERM NOT
LONGER THAN ONE YEAR.  BY THE ACT OF FEBRUARY 25, 1927 (44 STAT. 1232),
CONGRESS AUTHORIZED SUCH RESIDENTIAL MORTGAGE LOANS TO RUN FOR A PERIOD
OF FIVE YEARS.  BY THE ACT OF JUNE 27, 1934 (48 STAT. 1263), CONGRESS
AUTHORIZED NATIONAL BANKS TO MAKE MORTGAGE LOANS UNDER TITLE II,
NATIONAL HOUSING ACT (12 U.S.C. SEC. 1701 ET SEQ.), COMMONLY KNOWN AS
F.H.A. MORTGAGES.  BY THE ACT OF AUGUST 23, 1935 (49 STAT. 706),
AMENDING SEC. 24 OF THE FEDERAL RESERVE ACT, NATIONAL BANKS WERE
AUTHORIZED TO MAKE CONVENTIONAL RESIDENTIAL MORTGAGE LOANS IN AMOUNTS
NOT EXCEEDING 60% OF THE APPRAISED VALUE OF THE PROPERTY FOR A TERM OF
10 YEARS IF 40% OF THE PRINCIPAL BE AMORTIZED IN THAT TERM.  BY
DECISION OF THE COMPTROLLER OF THE CURRENCY IN 1944, NATIONAL BANKS
WERE AUTHORIZED TO PARTICIPATE IN THE V.A. (OR G.I.)  HOME LOAN
PROGRAM.  BY THE 1950 AMENDMENT TO SEC. 24 (64 STAT. 80), NATIONAL
BANKS WERE AUTHORIZED TO MAKE TITLE I, F.H.A. HOME IMPROVEMENTS LOANS. 
IT THUS APPEARS THAT, BY 1952, NATIONAL BANKS WERE AUTHORIZED TO MAKE
F.H.A. MORTGAGE AND HOME MODERNIZATION LOANS AND ALSO V.A.  MORTGAGE
LOANS IDENTICAL TO THOSE MADE BY SAVINGS AND LOAN ASSOCIATIONS, AND
CONVENTIONAL MORTGAGE LOANS COMPARABLE TO THOSE MADE BY SUCH
ASSOCIATIONS. 

FN7  THE MICHIGAN SUPREME COURT ITSELF HAS RECOGNIZED "THAT INVESTORS
IN SAVINGS AND LOAN ASSOCIATIONS ARE SUBSCRIBERS TO, OR PURCHASERS OF,
STOCK THEREIN  ...  ."  - AND ARE NOT "DEPOSITORS" OR "CREDITORS"
THEREOF.  MICHIGAN SAVINGS & LOAN LEAGUE V. MUNICIPAL FINANCE
COMMISSION OF THE STATE OF MICHIGAN (1956), 347 MICH. 311, 322, 79
N.W.2D 590, 595. 
..END :




SILVERMAN V. UNITED STATES 365 U.S. 505 


NO. 66.  ARGUED DECEMBER 5, 1960 - DECIDED MARCH 6, 1961 - 107 U.S. APP.
D.C. 144, 275 F.2D 173, REVERSED. 


AT THE TRIAL IN A FEDERAL DISTRICT COURT IN WHICH PETITIONERS WERE
CONVICTED OF GAMBLING OFFENSES UNDER THE DISTRICT OF COLUMBIA CODE,
THERE WAS ADMITTED IN EVIDENCE OVER THEIR OBJECTION TESTIMONY OF POLICE
OFFICERS DESCRIBING INCRIMINATING CONVERSATIONS ENGAGED IN BY
PETITIONERS AT THEIR ALLEGED GAMBLING ESTABLISHMENT, WHICH THE OFFICERS
HAD OVERHEARD BY MEANS OF AN ELECTRONIC LISTENING DEVICE PUSHED THROUGH
THE PARTY WALL OF AN ADJOINING HOUSE UNTIL IT TOUCHED HEATING DUCTS IN
THE HOUSE OCCUPIED BY PETITIONERS.  HELD:  SUCH TESTIMONY SHOULD NOT
HAVE BEEN ADMITTED IN EVIDENCE, AND THE CONVICTIONS MUST BE SET ASIDE. 
PP. 506-512. 

(A)  ALTHOUGH MUCH OF WHAT THE OFFICERS HEARD AND TESTIFIED ABOUT
CONSISTED OF PETITIONERS' SHARE OF TELEPHONE CONVERSATIONS, IT CANNOT
BE SAID THAT THE OFFICERS INTERCEPTED THOSE CONVERSATIONS AND DIVULGED
THEIR CONTENTS IN VIOLATION OF SEC. 605 OF THE COMMUNICATIONS ACT OF
1934.  PP. 507-508. 

(B)  ON THE RECORD IN THIS CASE, THE EAVESDROPPING WAS ACCOMPLISHED
BY MEANS OF AN UNAUTHORIZED PHYSICAL PENETRATION INTO THE PREMISES
OCCUPIED BY PETITIONERS, WHICH VIOLATED THEIR RIGHTS UNDER THE FOURTH
AMENDMENT.  GOLDMAN V. UNITED STATES, 316 U.S. 129, AND ON LEE V.
UNITED STATES, 343 U.S. 747, DISTINGUISHED.  PP. 509-512. 

SILVERMAN ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE TRIED AND FOUND GUILTY IN THE DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA UPON THREE COUNTS OF AN INDICTMENT CHARGING
GAMBLING OFFENSES UNDER THE DISTRICT OF COLUMBIA CODE.  AT THE TRIAL
POLICE OFFICERS WERE PERMITTED TO DESCRIBE INCRIMINATING CONVERSATIONS
ENGAGED IN BY THE PETITIONERS AT THEIR ALLEGED GAMBLING ESTABLISHMENT,
CONVERSATIONS WHICH THE OFFICERS HAD OVERHEARD BY MEANS OF AN
ELECTRONIC LISTENING DEVICE.  THE CONVICTIONS WERE AFFIRMED BY THE
COURT OF APPEALS, 107 U.S. APP. D.C. 144, 275 F.2D 173, AND WE GRANTED
CERTIORARI TO CONSIDER THE CONTENTION THAT THE OFFICERS' TESTIMONY AS
TO WHAT THEY HAD HEARD THROUGH THE ELECTRONIC INSTRUMENT SHOULD NOT
HAVE BEEN ADMITTED INTO EVIDENCE.  363 U.S. 801. 

THE RECORD SHOWS THAT IN THE SPRING OF 1958 THE DISTRICT OF COLUMBIA
POLICE HAD REASON TO SUSPECT THAT THE PREMISES AT 408 21ST STREET,
N.W., IN WASHINGTON, WERE BEING USED AS THE HEADQUARTERS OF A GAMBLING
OPERATION.  THEY GAINED PERMISSION FROM THE OWNER OF THE VACANT
ADJOINING ROW HOUSE TO USE IT AS AN OBSERVATION POST.  FROM THIS
VANTAGE POINT FOR A PERIOD OF AT LEAST THREE CONSECUTIVE DAYS IN APRIL
1958, THE OFFICERS EMPLOYED A SO-CALLED "SPIKE MIKE" TO LISTEN TO WHAT
WAS GOING ON WITHIN THE FOUR WALLS OF THE HOUSE NEXT DOOR. 

THE INSTRUMENT IN QUESTION WAS A MICROPHONE WITH A SPIKE ABOUT A FOOT
LONG ATTACHED TO IT, TOGETHER WITH AN AMPLIFIER, A POWER PACK, AND
EARPHONES.  THE OFFICERS INSERTED THE SPIKE UNDER A BASEBOARD IN A
SECOND-FLOOR ROOM OF THE VACANT HOUSE AND INTO A CREVICE EXTENDING
SEVERAL INCHES INTO THE PARTY WALL, UNTIL THE SPIKE HIT SOMETHING SOLID
"THAT ACTED AS A VERY GOOD SOUNDING BOARD."   THE RECORD CLEARLY
INDICATES THAT THE SPIKE MADE CONTACT WITH A HEATING DUCT SERVING THE
HOUSE OCCUPIED BY THE PETITIONERS, THUS CONVERTING THEIR ENTIRE HEATING
SYSTEM INTO A CONDUCTOR OF SOUND.  CONVERSATIONS TAKING PLACE ON BOTH
FLOORS OF THE HOUSE WERE AUDIBLE TO THE OFFICERS THROUGH THE EARPHONES,
AND THEIR TESTIMONY REGARDING THESE CONVERSATIONS, ADMITTED AT THE
TRIAL OVER TIMELY OBJECTION, PLAYED A SUBSTANTIAL PART IN THE
PETITIONERS' CONVICTIONS.  (FN1) 

AFFIRMING THE CONVICTIONS, THE COURT OF APPEALS HELD THAT THE TRIAL
COURT HAD NOT ERRED IN ADMITTING THE OFFICERS' TESTIMONY.  THE COURT
WAS OF THE VIEW THAT THE OFFICERS' USE OF THE SPIKE MIKE HAD VIOLATED
NEITHER THE COMMUNICATIONS ACT OF 1934, 47 U.S.C. SEC. 605, CF.
NARDONE V. UNITED STATES, 302 U.S. 379, NOR THE PETITIONERS' RIGHTS
UNDER THE FOURTH AMENDMENT, CF. WEEKS V. UNITED STATES, 232 U.S. 383. 

IN REACHING THESE CONCLUSIONS THE COURT RELIED PRIMARILY UPON OUR
DECISIONS IN GOLDMAN V. UNITED STATES, 316 U.S. 129, AND ON LEE V.
UNITED STATES, 343 U.S. 747.  JUDGE WASHINGTON DISSENTED, BELIEVING
THAT, EVEN IF THE PETITIONERS' FOURTH AMENDMENT RIGHTS HAD NOT BEEN
ABRIDGED, THE OFFICERS' CONDUCT HAD TRANSGRESSED THE STANDARDS OF DUE
PROCESS GUARANTEED BY THE FIFTH AMENDMENT.  CF. IRVINE V. CALIFORNIA,
347 U.S. 128. 

AS TO THE INAPPLICABILITY OF SEC. 605 OF THE COMMUNICATIONS ACT OF
1934, WE AGREE WITH THE COURT OF APPEALS.  THAT SECTION PROVIDES THAT "
...  NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT ANY
COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE, CONTENTS,
SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED
COMMUNICATION TO ANY PERSON  ...  ."  WHILE IT IS TRUE THAT MUCH OF
WHAT THE OFFICERS HEARD CONSISTED OF THE PETITIONERS' SHARE OF
TELEPHONE CONVERSATIONS, WE CANNOT SAY THAT THE OFFICERS INTERCEPTED
THESE CONVERSATIONS WITHIN THE MEANING OF THE STATUTE. 

SIMILAR CONTENTIONS HAVE BEEN REJECTED HERE AT LEAST TWICE BEFORE. 
IN IRVINE V. CALIFORNIA, 347 U.S. 128, 131, THE COURT SAID:  "HERE THE
APPARATUS OF THE OFFICERS WAS NOT IN ANY WAY CONNECTED WITH THE
TELEPHONE FACILITIES, THERE WAS NO INTERFERENCE WITH THE COMMUNICATIONS
SYSTEM, THERE WAS NO INTERCEPTION OF ANY MESSAGE.  ALL THAT WAS HEARD
THROUGH THE MICROPHONE WAS WHAT AN EAVESDROPPER, HIDDEN IN THE HALL,
THE BEDROOM, OR THE CLOSET, MIGHT HAVE HEARD.  WE DO NOT SUPPOSE IT IS
ILLEGAL TO TESTIFY TO WHAT ANOTHER PERSON IS HEARD TO SAY MERELY
BECAUSE HE IS SAYING IT INTO A TELEPHONE."  IN GOLDMAN V. UNITED
STATES, 316 U.S. 129, 134, IT WAS SAID THAT "THE LISTENING IN THE NEXT
ROOM TO THE WORDS OF THE PETITIONER AS HE TALKED INTO THE TELEPHONE
RECEIVER WAS NO MORE THE INTERCEPTION OF A WIRE COMMUNICATION, WITHIN
THE MEANING OF THE ACT, THAN WOULD HAVE BEEN THE OVERHEARING OF THE
CONVERSATION BY ONE SITTING IN THE SAME ROOM." 

IN PRESENTING HERE THE PETITIONERS' FOURTH AMENDMENT CLAIM, COUNSEL
HAS PAINTED WITH A BROAD BRUSH.  WE ARE ASKED TO RECONSIDER OUR
DECISIONS IN GOLDMAN V. UNITED STATES, SUPRA, AND ON LEE V. UNITED
STATES, SUPRA.  WE ARE TOLD THAT RE-EXAMINATION OF THE RATIONALE OF
THOSE CASES, AND OF OLMSTEAD V. UNITED STATES, 277 U.S. 438, FROM WHICH
THEY STEMMED, IS NOW ESSENTIAL IN THE LIGHT OF RECENT AND PROJECTED
DEVELOPMENTS IN THE SCIENCE OF ELECTRONICS.  WE ARE FAVOURED WITH A
DESCRIPTION OF "A DEVICE KNOWN AS THE PARABOLIC MICROPHONE WHICH CAN
PICK UP A CONVERSATION THREE HUNDRED YARDS AWAY."  WE ARE TOLD OF A
"STILL EXPERIMENTAL TECHNIQUE WHEREBY A ROOM IS FLOODED WITH A CERTAIN
TYPE OF SONIC WAVE," WHICH, WHEN PERFECTED, "WILL MAKE IT POSSIBLE TO
OVERHEAR EVERYTHING SAID IN A ROOM WITHOUT EVER ENTERING IT OR EVEN
GOING NEAR IT."  WE ARE INFORMED OF AN INSTRUMENT "WHICH CAN PICK UP A
CONVERSATION THROUGH AN OPEN OFFICE WINDOW ON THE OPPOSITE SIDE OF A
BUSY STREET."  (FN2) 

THE FACTS OF THE PRESENT CASE, HOWEVER, DO NOT REQUIRE US TO CONSIDER
THE LARGE QUESTIONS WHICH HAVE BEEN ARGUED.  WE NEED NOT HERE
CONTEMPLATE THE FOURTH AMENDMENT IMPLICATIONS OF THESE AND OTHER
FRIGHTENING PARAPHERNALIA WHICH THE VAUNTED MARVELS OF AN ELECTRONIC
AGE MAY VISIT UPON HUMAN SOCIETY.  NOR DO THE CIRCUMSTANCES HERE MAKE
NECESSARY A RE-EXAMINATION OF THE COURT'S PREVIOUS DECISIONS IN THIS
AREA.  FOR A FAIR READING OF THE RECORD IN THIS CASE SHOWS THAT THE
EAVESDROPPING WAS ACCOMPLISHED BY MEANS OF AN UNAUTHORIZED PHYSICAL
PENETRATION INTO THE PREMISES OCCUPIED BY THE PETITIONERS.  AS JUDGE
WASHINGTON POINTED OUT WITHOUT CONTRADICTION IN THE COURT OF APPEALS:
"EVERY INFERENCE, AND WHAT LITTLE DIRECT EVIDENCE THERE WAS, POINTED TO
THE FACT THAT THE SPIKE MADE CONTACT WITH THE HEATING DUCT, AS THE
POLICE ADMITTEDLY HOPED IT WOULD.  ONCE THE SPIKE TOUCHED THE HEATING
DUCT, THE DUCT BECAME IN EFFECT A GIANT MICROPHONE, RUNNING THROUGH THE
ENTIRE HOUSE OCCUPIED BY APPELLANTS."  107 U.S. APP. D.C., AT 150, 275
F.2D, AT 179. 

EAVESDROPPING ACCOMPLISHED BY MEANS OF SUCH A PHYSICAL INTRUSION IS
BEYOND THE PALE OF EVEN THOSE DECISIONS IN WHICH A CLOSELY DIVIDED
COURT HAS HELD THAT EAVESDROPPING ACCOMPLISHED BY OTHER ELECTRONIC
MEANS DID NOT AMOUNT TO AN INVASION OF FOURTH AMENDMENT RIGHTS.  IN
GOLDMAN V. UNITED STATES, SUPRA, THE COURT HELD THAT PLACING A
DETECTAPHONE AGAINST AN OFFICE WALL IN ORDER TO LISTEN TO CONVERSATIONS
TAKING PLACE IN THE OFFICE NEXT DOOR DID NOT VIOLATE THE AMENDMENT.  IN
ON LEE V. UNITED STATES, SUPRA, A FEDERAL AGENT, WHO WAS ACQUAINTED
WITH THE PETITIONER, ENTERED THE PETITIONER'S LAUNDRY AND ENGAGED HIM
IN AN INCRIMINATING CONVERSATION.  THE AGENT HAD A MICROPHONE CONCEALED
UPON HIS PERSON.  ANOTHER AGENT, STATIONED OUTSIDE WITH A RADIO
RECEIVING SET, WAS TUNED IN ON THE CONVERSATION, AND AT THE
PETITIONER'S SUBSEQUENT TRIAL RELATED WHAT HE HAD HEARD.  THESE
CIRCUMSTANCES WERE HELD NOT TO CONSTITUTE A VIOLATION OF THE
PETITIONER'S FOURTH AMENDMENT RIGHTS. 

BUT IN BOTH GOLDMAN AND ON LEE THE COURT TOOK PAINS EXPLICITLY TO
POINT OUT THAT THE EAVESDROPPING HAD NOT BEEN ACCOMPLISHED BY MEANS OF
AN UNAUTHORIZED PHYSICAL ENCROACHMENT WITHIN A CONSTITUTIONALLY
PROTECTED AREA.  IN GOLDMAN THERE HAD IN FACT BEEN A PRIOR PHYSICAL
ENTRY INTO THE PETITIONER'S OFFICE FOR THE PURPOSE OF INSTALLING A
DIFFERENT LISTENING APPARATUS, WHICH HAD TURNED OUT TO BE INEFFECTIVE. 
THE COURT EMPHASIZED THAT THIS EARLIER PHYSICAL TRESPASS HAD BEEN OF NO
RELEVANT ASSISTANCE IN THE LATER USE OF THE DETECTAPHONE IN THE
ADJOINING OFFICE.  316 U.S., AT 134-135.  AND IN ON LEE, AS THE COURT
SAID, "  ...  NO TRESPASS WAS COMMITTED."  THE AGENT WENT INTO THE
PETITIONER'S PLACE OF BUSINESS "WITH THE CONSENT, IF NOT BY THE IMPLIED
INVITATION, OF THE PETITIONER."  343 U.S., AT 751-752. 

THE ABSENCE OF A PHYSICAL INVASION OF THE PETITIONER'S PREMISES WAS
ALSO A VITAL FACTOR IN THE COURT'S DECISION IN OLMSTEAD V. UNITED
STATES, 277 U.S. 438.  IN HOLDING THAT THE WIRETAPPING THERE DID NOT
VIOLATE THE FOURTH AMENDMENT, THE COURT NOTED THAT "THE INSERTIONS WERE
MADE WITHOUT TRESPASS UPON ANY PROPERTY OF THE DEFENDANTS.  THEY WERE
MADE IN THE BASEMENT OF THE LARGE OFFICE BUILDING.  THE TAPS FROM HOUSE
LINES WERE MADE IN THE STREETS NEAR THE HOUSES."  277 U.S., AT 457. 
"THERE WAS NO ENTRY OF THE HOUSES OR OFFICES OF THE DEFENDANTS."  277
U.S., AT 464.  RELYING UPON THESE CIRCUMSTANCES, THE COURT REASONED
THAT "THE INTERVENING WIRES ARE NOT PART OF THE DEFENDANT'S HOUSE OR
OFFICE ANY MORE THAN ARE THE HIGHWAYS ALONG WHICH THEY ARE STRETCHED." 
277 U.S., AT 465. 

HERE, BY CONTRAST, THE OFFICERS OVERHEARD THE PETITIONERS'
CONVERSATIONS ONLY BY USURPING PART OF THE PETITIONERS' HOUSE OR OFFICE
- A HEATING SYSTEM WHICH WAS AN INTEGRAL PART OF THE PREMISES OCCUPIED
BY THE PETITIONERS, A USURPATION THAT WAS EFFECTED WITHOUT THEIR
KNOWLEDGE AND WITHOUT THEIR CONSENT.  IN THESE CIRCUMSTANCES WE NEED
NOT PAUSE TO CONSIDER WHETHER OR NOT THERE WAS A TECHNICAL TRESPASS
UNDER THE LOCAL PROPERTY LAW RELATING TO PARTY WALLS.  (FN3)  INHERENT
FOURTH AMENDMENT RIGHTS ARE NOT INEVITABLY MEASURABLE IN TERMS OF
ANCIENT NICETIES OF TORT OR REAL PROPERTY LAW.  SEE JONES V. UNITED
STATES, 362 U.S. 257, 266; ON LEE V. UNITED STATES, SUPRA, AT 752;
HESTER V. UNITED STATES, 265 U.S. 57; UNITED STATES V. JEFFERS, 342
U.S. 48, 51; MCDONALD V. UNITED STATES, 335 U.S. 451, 454. 

THE FOURTH AMENDMENT, AND THE PERSONAL RIGHTS WHICH IT SECURES, HAVE
A LONG HISTORY.  AT THE VERY CORE STANDS THE RIGHT OF A MAN TO RETREAT
INTO HIS OWN HOME AND THERE BE FREE FROM UNREASONABLE GOVERNMENTAL
INTRUSION.  ENTICK V. CARRINGTON, 19 HOWELL'S STATE TRIALS 1029, 1066;
BOYD V. UNITED STATES, 116 U.S. 616, 626-630.  (FN4)  THIS COURT HAS
NEVER HELD THAT A FEDERAL OFFICER MAY WITHOUT WARRANT AND WITHOUT
CONSENT PHYSICALLY ENTRENCH INTO A MAN'S OFFICE OR HOME, THERE SECRETLY
OBSERVE OR LISTEN, AND RELATE AT THE MAN'S SUBSEQUENT CRIMINAL TRIAL
WHAT WAS SEEN OR HEARD. 

A DISTINCTION BETWEEN THE DETECTAPHONE EMPLOYED IN GOLDMAN AND THE
SPIKE MIKE UTILIZED HERE SEEMED TO THE COURT OF APPEALS TOO FINE A ONE
TO DRAW.  THE COURT WAS "UNWILLING TO BELIEVE THAT THE RESPECTIVE
RIGHTS ARE TO BE MEASURED IN FRACTIONS OF INCHES."  BUT DECISION HERE
DOES NOT TURN UPON THE TECHNICALITY OF A TRESPASS UPON A PARTY WALL AS
A MATTER OF LOCAL LAW.  IT IS BASED UPON THE REALITY OF AN ACTUAL
INTRUSTION INTO A CONSTITUTIONALLY PROTECTED AREA.  WHAT THE COURT SAID
LONG AGO BEARS REPEATING NOW:  "IT MAY BE THAT IT IS THE OBNOXIOUS
THING IN ITS MILDEST AND LEAST REPULSIVE FORM; BUT ILLEGITIMATE AND
UNCONSTITUTIONAL PRACTICES GET THEIR FIRST FOOTING IN THAT WAY, NAMELY,
BY SILENT APPROACHES AND SLIGHT DEVIATIONS FROM LEGAL MODES OF
PROCEDURE."  BOYD V. UNITED STATES, 116 U.S. 616, 635.  WE FIND NO
OCCASION TO RE-EXAMINE GOLDMAN HERE, BUT WE DECLINE TO GO BEYOND IT. BY
EVEN A FRACTION OF AN INCH.  REVERSED. 

FN1  ALLEGING THAT THE CONVERSATIONS THUS OVERHEARD HAD BEEN THE
BASIS FOR A SEARCH WARRANT UNDER WHICH OTHER INCRIMINATING EVIDENCE WAS
DISCOVERED AT 408 21ST STREET, N.W., THE PETITIONERS SOUGHT
UNSUCCESSFULLY TO SUPPRESS THE EVIDENCE OBTAINED UPON EXECUTION OF THE
WARRANT.  IT IS THE GOVERNMENT'S POSITION THAT THERE WERE AMPLE GROUNDS
TO SUPPORT THE SEARCH WARRANT, EVEN WITHOUT WHAT WAS OVERHEARD BY MEANS
OF THE SPIKE MIKE.  WE DEAL HERE ONLY WITH THE ADMISSIBILITY AT THE
TRIAL OF THE OFFICERS' TESTIMONY AS TO WHAT THEY HEARD BY MEANS OF THE
LISTENING DEVICE, LEAVING A DETERMINATION OF THE WARRANT'S VALIDITY TO
ABIDE THE EVENT OF A NEW TRIAL. 

FN2  SEE HEARINGS BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF
THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE, 85TH CONG., 2D
SESS., ON WIRETAPPING, EAVESDROPPING, AND THE BILL OF RIGHTS; HEARINGS
BEFORE SUBCOMMITTEE NO. 5 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, 84TH CONG., 1ST SESS., ON WIRETAPPING; DASH, SCHWARTZ
AND KNOWLTON, THE EAVESDROPPERS (RUTGERS UNIVERSITY PRESS, 1959), PP.
346-358. 

FN3  SEE FOWLER V. KOEHLER, 43 APP. D.C. 349. 

FN4 WILLIAM PITT'S ELOQUENT DESCRIPTION OF THIS RIGHT HAS BEEN OFTEN
QUOTED.  THE LATE JUDGE JEROME FRANK MADE THE POINT IN MORE
CONTEMPORARY LANGUAGE:  "A MAN CAN STILL CONTROL A SMALL PART OF HIS
ENVIRONMENT, HIS HOUSE; HE CAN RETREAT THENCE FROM OUTSIDERS, SECURE IN
THE KNOWLEDGE THAT THEY CANNOT GET AT HIM WITHOUT DISOBEYING THE
CONSTITUTION.  THAT IS STILL A SIZABLE HUNK OF LIBERTY - WORTH
PROTECTING FROM ENCROACHMENT.  A SANE, DECENT, CIVILIZED SOCIETY MUST
PROVIDE SOME SUCH OASIS, SOME SHELTER FROM PUBLIC SCRUTINY, SOME
INSULATED ENCLOSURE, SOME ENCLAVE, SOME INVIOLATE PLACE WHICH IS A
MAN'S CASTLE."  UNITED STATES V. ON LEE, 193 F.2D 306, 315-316
(DISSENTING OPINION).    MR. JUSTICE DOUGLAS, CONCURRING. 

MY TROUBLE WITH STARE DECISIS IN THIS FIELD IS THAT IT LEADS US TO A
MATCHING OF CASES ON IRRELEVANT FACTS.  AN ELECTRONIC DEVICE ON THE
OUTSIDE WALL OF A HOUSE IS A PERMISSIBLE INVASION OF PRIVACY ACCORDING
TO GOLDMAN V. UNITED STATES, 316 U.S. 129, WHILE AN ELECTRONIC DEVICE
THAT PENETRATES THE WALL, AS HERE, IS NOT.  YET THE INVASION OF PRIVACY
IS AS GREAT IN ONE CASE AS IN THE OTHER.  THE CONCEPT OF "AN
UNAUTHORIZED PHYSICAL PENETRATION INTO THE PREMISES," ON WHICH THE
PRESENT DECISION RESTS, SEEMS TO ME TO BE BESIDE THE POINT.  WAS NOT
THE WRONG IN BOTH CASES DONE WHEN THE INTIMACIES OF THE HOME WERE
TAPPED, RECORDED, OR REVEALED?  THE DEPTH OF THE PENETRATION OF THE
ELECTRONIC DEVICE - EVEN THE DEGREE OF ITS REMOTENESS FROM THE INSIDE
OF THE HOUSE - IS NOT THE MEASURE OF THE INJURY.  THERE IS IN EACH SUCH
CASE A SEARCH THAT SHOULD BE MADE, IF AT ALL, ONLY ON A WARRANT ISSUED
BY A MAGISTRATE.  I STATED MY VIEWS IN ON LEE V. UNITED STATES, 343
U.S. 747, AND ADHERE TO THEM.  OUR CONCERN SHOULD NOT BE WITH THE
TRIVIALITIES OF THE LOCAL LAW OF TRESPASS, AS THE OPINION OF THE COURT
INDICATES.  BUT NEITHER SHOULD THE COMMAND OF THE FOURTH AMENDMENT BE
LIMITED BY NICE DISTINCTIONS TURNING ON THE KIND OF ELECTRONIC
EQUIPMENT EMPLOYED.  RATHER OUR SOLE CONCERN SHOULD BE WITH WHETHER THE
PRIVACY OF THE HOME WAS INVADED.  SINCE IT WAS INVADED HERE, AND SINCE
NO SEARCH WARRANT WAS OBTAINED AS REQUIRED BY THE FOURTH AMENDMENT AND
RULE 41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, I AGREE WITH THE
COURT THAT THE JUDGMENT OF CONVICTION MUST BE SET ASIDE. 

MR. JUSTICE CLARK AND MR. JUSTICE WHITTAKER, CONCURRING. 

IN VIEW OF THE DETERMINATION BY THE MAJORITY THAT THE UNAUTHORIZED
PHYSICAL PENETRATION INTO PETITIONERS' PREMISES CONSTITUTED SUFFICIENT
TRESPASS TO REMOVE THIS CASE FROM THE COVERAGE OF EARLIER DECISIONS, WE
FEEL OBLIGED TO JOIN IN THE COURT'S OPINION. 
..END :







EGAN V. CITY OF AURORA 365 U.S. 514 


NO. 121.  DECIDED MARCH 6, 1961 - 275 F.2D 377, AFFIRMED IN PART AND
VACATED AND REMANDED IN PART. 


UNDER 42 U.S.C. SECS. 1983 AND 1985, PETITIONER BROUGHT AN ACTION IN A
FEDERAL DISTRICT COURT AGAINST A MUNICIPALITY AND CERTAIN OF ITS
OFFICIALS TO RECOVER DAMAGES FOR THE DEPRIVATION OF RIGHTS SECURED TO
HIM BY THE CONSTITUTION.  THE DISTRICT COURT DISMISSED THE COMPLAINT
AND THE COURT OF APPEALS AFFIRMED.  HELD:  CERTIORARI GRANTED; JUDGMENT
IN FAVOR OF THE MUNICIPALITY AFFIRMED; JUDGMENT IN FAVOR OF THE
INDIVIDUAL DEFENDANTS VACATED AND THE CAUSE AS TO THEM REMANDED TO THE
COURT OF APPEALS FOR RECONSIDERATION. 

EGAN V. CITY OF AURORA ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

PETITIONER, MAYOR OF THE CITY OF AURORA, BROUGHT THIS SUIT IN THE
DISTRICT COURT AGAINST THE CITY AND CERTAIN OF ITS OFFICIALS FOR
DAMAGES FOR DEPRIVATION OF RIGHTS SECURED TO HIM BY THE CONSTITUTION. 
HE ALLEGES UNLAWFUL ACTION BY THE CITY AND BY INDIVIDUALS WHO ARE OR
WHO PURPORT TO BE ITS OFFICIALS (SEE 42 U.S.C. SEC. 1983) AND A
CONSPIRACY (SEE 42 U.S.C. SEC. 1985).  THE DISTRICT COURT GRANTED THE
MOTIONS TO DISMISS, 174 F. SUPP. 794, AND THE COURT OF APPEALS
AFFIRMED, 275 F.2D 377, BOTH DECISIONS BEING PRIOR TO OUR OPINION IN
MONROE V. PAPE, ANTE, P. 167. 

THE DISMISSAL AS TO THE CITY OF AURORA WAS CORRECT, FOR WE HELD IN
MONROE V. PAPE, SUPRA, THAT A MUNICIPALITY WAS NOT A "PERSON" WITHIN
THE MEANING OF 42 U.S.C. SEC. 1983.  INSOFAR AS ANY RIGHT CLAIMED STEMS
FROM PETITIONER'S STATUS A S MAYOR UNDER ILLINOIS LAW IT IS PRECLUDED
FROM ASSERTION HERE BY SNOWDEN V. HUGHES, 321 U.S. 1.  BUT AS WE READ
THE COMPLAINT, THE RIGHTS WHICH PETITIONER CLAIMS HE WAS DEPRIVED OF
ARE THOSE THAT DERIVE FROM THE FOURTEENTH AMENDMENT, PARTICULARLY THE
RIGHT OF FREE SPEECH AND ASSEMBLY.  THE OPINION OF THE COURT OF APPEALS
IS NOT EXPLICIT AS RESPECTS THE GROUNDS FOR DISMISSING THE COMPLAINT
UNDER 42 U.S.C.  SEC. 1985.  SEE SNOWDEN V. HUGHES, 321 U.S. 1; COLLINS
V. HARDYMAN, 341 U.S. 651.  THE COURT OF APPEALS, IN AFFIRMING THE
JUDGMENT OF THE DISTRICT COURT ON GROUNDS OTHER THAN THE ONES RELIED ON
BY THAT COURT, SEEMS TO HAVE DECIDED THE CASE ON A CONSTRUCTION OF 42
U.S.C. SEC. 1983 THAT APPARENTLY IS INCONSISTENT WITH THE VIEW WE TOOK
IN MONROE V. PAPE, SUPRA. 

ACCORDINGLY WE GRANT THE PETITION FOR CERTIORARI, AFFIRM THE JUDGMENT
IN FAVOR OF THE CITY OF AURORA, VACATE THE JUDGMENT OF THE COURT OF
APPEALS IN FAVOR OF THE INDIVIDUAL RESPONDENTS AND REMAND THE CAUSE AS
RESPECTS THEM TO THE COURT OF APPEALS FOR RECONSIDERATION IN LIGHT OF
THIS OPINION. 
..END :





















THORNTON V. OHIO 365 U.S. 516 


NO. 373, MISC.  DECIDED MARCH 6, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 171 OHIO ST. 220, 168 N.E.2D 410. 


THORNTON V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 
..END :

















GREEN V. UNITED STATES 365 U.S. 301 


NOS. 70 AND 179.  ARGUED JANUARY 10-11, 1961 - DECIDED FEBRUARY 27, 1961
- 273 F.2D 216 AND 274 F.2D 59, AFFIRMED. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT ON A THREE-COUNT
INDICTMENT UNDER 18 U.S.C. SEC. 2113 FOR (1) ENTERING A BANK WITH
INTENT TO COMMIT A FELONY, (2) ROBBING THE BANK, AND (3) ASSAULTING OR
PUTTING IN JEOPARDY THE LIVES OF PERSONS BY USING A DANGEROUS WEAPON
WHILE COMMITTING THE ROBBERY.  BEFORE PASSING SENTENCE, THE DISTRICT
JUDGE ASKED, "DID YOU WANT TO SAY SOMETHING?"  WHEREUPON PETITIONER'S
COUNSEL AT SOME LENGTH INVOKED THE JUDGE'S DISCRETIONARY LENIENCY. 
PETITIONER WAS THEN SENTENCED TO IMPRISONMENT FOR 20 YEARS ON EACH OF
THE FIRST TWO COUNTS AND FOR 25 YEARS ON THE THIRD COUNT, ALL TO RUN
CONCURRENTLY.  SEVEN YEARS LATER, PETITIONER FILED TWO MOTIONS UNDER
RULE 35 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE TO VACATE THE
SENTENCE, CLAIMING THAT (1) IT WAS ILLEGAL BECAUSE HE HAD NOT BEEN
PERMITTED TO SPEAK IN HIS OWN BEHALF PRIOR TO SENTENCING, AS REQUIRED
BY RULE 32(A), AND (2) THE 25-YEAR SENTENCE UNDER COUNT 3 FOR
AGGRAVATED BANK ROBBERY WAS ILLEGAL BECAUSE THE JUDGE HAD EXHAUSTED HIS
POWER TO SENTENCE WHEN HE IMPOSED THE SENTENCE UNDER COUNT 2 FOR
UNAGGRAVATED BANK ROBBERY.  BOTH MOTIONS WERE DENIED.  HELD:  THE
JUDGMENT IS AFFIRMED.  PP. 302-306. 

GREEN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

JUDGMENT OF THE COURT AND OPINION OF MR. JUSTICE FRANKFURTER, JOINED
BY MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER,
ANNOUNCED BY MR. JUSTICE HARLAN. 

DEFENDANT, THE PETITIONER HERE, IN 1952 WAS CONVICTED IN THE UNITED
STATES DISTRICT COURT FOR MASSACHUSETTS ON A THREE-COUNT INDICTMENT
CHARGING HIM WITH (1) ENTERING A BANK WITH INTENT TO COMMIT A FELONY,
IN VIOLATION OF 18 U.S.C. SEC. 2113(A); (2) ROBBING THE BANK, ALSO IN
VIOLATION OF 18 U.S.C. SEC. 2113(A); AND (3) ASSAULTING OR PUTTING IN
JEOPARDY THE LIVES OF PERSONS BY USE OF A DANGEROUS WEAPON WHILE
COMMITTING THE ROBBERY, IN VIOLATION OF 18 U.S.C. SEC. 2113(D).  FIVE
DAYS LATER, AFTER DEFENDANT'S COUNSEL HAD COMPLETED MOTIONS IN ARREST
OF JUDGMENT AND FOR NEW TRIAL, THE DISTRICT JUDGE ASKED, "DID YOU WANT
TO SAY SOMETHING?"  WHEREUPON COUNSEL AT SOME LENGTH INVOKED THE TRIAL
JUDGE'S DISCRETIONARY LENIENCY.  THE DEFENDANT'S AGE, FAMILY STATUS,
AND PHYSICAL CONDITION WERE MENTIONED, AS WAS THE FACT THAT HE WAS THEN
SERVING A SENTENCE IN A STATE PENITENTIARY WHICH WOULD DELAY THE TIME
FROM WHICH HIS FEDERAL PUNISHMENT WOULD RUN.  THEREUPON THE TRIAL
JUDGE, PRESUMABLY RELYING UPON A PRESENTENCE PROBATION REPORT, OBSERVED
THAT THE DEFENDANT WAS A HARDENED CRIMINAL, THAT HE HAD IN THE PAST
COMMITTED OTHER ARMED ROBBERIES, AND THAT THERE WAS NO WARRANT TO
BELIEVE THAT REHABILITATION WAS POSSIBLE.  HE THEN PRONOUNCED SENTENCE
AS FOLLOWS: 

"THEODORE GREEN, THE COURT ORDERS THAT ON THIS INDICTMENT YOU BE
SENTENCED AS FOLLOWS: ON COUNT 1 OF THE INDICTMENT 20 YEARS, ON COURT 2
OF THE INDICTMENT THAT YOU BE IMPRISONED FOR 20 YEARS, AND ON COURT 3
OF THE INDICTMENT THAT YOU BE IMPRISONED FOR THE PERIOD OF 25 YEARS,
SAID PRISON SENTENCE TO RUN CONCURRENT AND TO BEGIN UPON YOUR RELEASE
FROM PRISON UPON THE SENTENCE YOU ARE NOW RECEIVING UNDER ORDER OF THE
STATE COURT." 

SUBSEQUENTLY, DEFENDANT WAS PERMITTED TO BRING HIS APPEAL IN FORMA
PAUPERIS WHICH WAS DISMISSED BY THE COURT OF APPEALS "FOR WANT OF
DILIGENT PROSECUTION."  IN TWO OTHER LATER ACTIONS, DEFENDANT
UNSUCCESSFULLY BROUGHT PROCEEDINGS UNDER 28 U.S.C. SEC. 2255 TO VACATE
HIS SENTENCE. 

THESE TWO CASES, HERE CONSOLIDATED, ARISE OUT OF TWO SEPARATE ACTIONS
BROUGHT, SOME SEVEN YEARS AFTER CONVICTION, UNDER RULE 35 OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE IN AN EFFORT TO SET ASIDE THE
SENTENCE WHICH PETITIONER ASSERTS TO BE ILLEGAL.  IN NO. 70, PETITIONER
CLAIMS THAT THE FAILURE OF THE JUDGE TO INQUIRE OF THE DEFENDANT IF HE
HAD ANYTHING TO SAY ON HIS OWN BEHALF PRIOR TO SENTENCING RENDERED THE
SUBSEQUENT SENTENCE ILLEGAL UNDER FEDERAL CRIMINAL RULE 32(A).  (FN1)
IN NO. 179, PETITIONER QUESTIONS THE LEGALITY OF THE TWENTY-FIVE-YEAR
SENTENCE FOR AGGRAVATED BANK ROBBERY (FN2) WHEN IMMEDIATELY PRIOR TO
ITS IMPOSITION THE JUDGE HAD IMPOSED A TWENTY-YEAR SENTENCE UNDER
ANOTHER COUNT OF THE INDICTMENT FOR THE SAME OFFENSE WITHOUT THE
ELEMENTS OF AGGRAVATION. 

IF RULE 32(A) CONSTITUTES AN INFLEXIBLE REQUIREMENT THAT THE TRIAL
JUDGE SPECIFICALLY ADDRESS THE DEFENDANT, E.G., "DO YOU, THE DEFENDANT,
THEODORE GREEN, HAVE ANYTHING TO SAY BEFORE I PASS SENTENCE?"  THEN
WHAT TRANSPIRED IN THE PRESENT CASE FALLS SHORT OF THE REQUIREMENT,
EVEN ASSUMING THAT THIS INADEQUACY IN THE CIRCUMSTANCES NOW BEFORE US
WOULD CONSTITUTE AN ERROR PER SE RENDERING THE SENTENCE ILLEGAL. 

THE DESIGN OF RULE 32(A) DID NOT BEGIN WITH ITS PROMULGATION; ITS
LEGAL PROVENANCE WAS THE COMMON-LAW RIGHT OF ALLOCUTION.  AS EARLY AS
1689, IT WAS RECOGNIZED THAT THE COURT'S FAILURE TO ASK THE DEFENDANT
IF HE HAD ANYTHING TO SAY BEFORE SENTENCE WAS IMPOSED REQUIRED
REVERSAL.  SEE ANONYMOUS, 3 MOD. 265, 266, 87 ENG. REP. 175(K.B.). 
TAKEN IN THE CONTEXT OF ITS HISTORY, THERE CAN BE LITTLE DOUBT THAT THE
DRAFTERS OF RULE 32(A) INTENDED THAT THE DEFENDANT BE PERSONALLY
AFFORDED THE OPPORTUNITY TO SPEAK BEFORE IMPOSITION OF SENTENCE.  WE
ARE NOT UNMINDFUL OF THE RELEVANT MAJOR CHANGES THAT HAVE EVOLVED IN
CRIMINAL PROCEDURE SINCE THE SEVENTEENTH CENTURY - THE SHARP DECREASE
IN THE NUMBER OF CRIMES WHICH WERE PUNISHABLE BY DEATH, THE RIGHT OF
THE DEFENDANT TO TESTIFY ON HIS OWN BEHALF, AND THE RIGHT TO COUNSEL. 
BUT WE SEE NO REASON WHY A PROCEDURAL RULE SHOULD BE LIMITED TO THE
CIRCUMSTANCES UNDER WHICH IT AROSE IF REASONS FOR THE RIGHT IT PROTECTS
REMAIN.  NONE OF THESE MODERN INNOVATIONS LESSENS THE NEED FOR THE
DEFENDANT, PERSONALLY, TO HAVE THE OPPORTUNITY TO PRESENT TO THE COURT
HIS PLEA IN MITIGATION.  THE MOST PERSUASIVE COUNSEL MAY NOT BE ABLE TO
SPEAK FOR A DEFENDANT AS THE DEFENDANT MIGHT, WITH HALTING ELOQUENCE,
SPEAK FOR HIMSELF.  WE ARE BUTTRESSED IN THIS CONCLUSION BY THE FACT
THAT THE RULE EXPLICITLY AFFORDS THE DEFENDANT TWO RIGHTS:  "TO MAKE A
STATEMENT IN HIS OWN BEHALF," AND "TO PRESENT ANY INFORMATION IN
MITIGATION OF PUNISHMENT."  WE THEREFORE REJECT THE GOVERNMENT'S
CONTENTION THAT MERELY AFFORDING DEFENDANT'S COUNSEL THE OPPORTUNITY TO
SPEAK FULFILLS THE DUAL ROLE OF RULE 32(A).  SEE TAYLOR V. UNITED
STATES, 285 F.2D 703. 

HOWEVER, WE DO NOT READ THE RECORD BEFORE US TO HAVE DENIED THE
DEFENDANT THE OPPORTUNITY TO WHICH RULE 32(A) ENTITLED HIM.  THE SINGLE
PERTINENT SENTENCE - THE TRIAL JUDGE'S QUESTION "DID YOU WANT TO SAY
SOMETHING?"  - MAY WELL HAVE BEEN DIRECTED TO THE DEFENDANT AND NOT TO
HIS COUNSEL.  A RECORD, CERTAINLY THIS RECORD, UNLIKE A PLAY, IS
UNACCOMPANIED WITH STAGE DIRECTIONS WHICH MAY TELL THE SIGNIFICANT CAST
OF THE EYE OR THE NOD OF THE HEAD.  IT MAY WELL BE THAT THE DEFENDANT
HIMSELF WAS RECOGNIZED AND SUFFICIENTLY APPRISED OF HIS RIGHT TO SPEAK
AND CHOSE TO EXERCISE THIS RIGHT THROUGH HIS COUNSEL.  ESPECIALLY IS
THIS CONCLUSION WARRANTED BY THE FACT THAT THE DEFENDANT HAS RAISED
THIS CLAIM SEVEN YEARS AFTER THE OCCURRENCE.  THE DEFENDANT HAS FAILED
TO MEET HIS BURDEN OF SHOWING THAT HE WAS NOT ACCORDED THE PERSONAL
RIGHT WHICH RULE 32(A) GUARANTEES, AND WE THEREFORE FIND THAT HIS
SENTENCE WAS NOT ILLEGAL. 

HOWEVER, TO AVOID LITIGATION ARISING OUT OF AMBIGUOUS RECORDS IN
ORDER TO DETERMINE WHETHER THE TRIAL JUDGE DID ADDRESS HIMSELF TO THE
DEFENDANT PERSONALLY, WE THINK THAT THE PROBLEM SHOULD BE, AS IT
READILY CAN BE, TAKEN OUT OF THE REALM OF CONTROVERSY.  THIS IS EASILY
ACCOMPLISHED.  TRIAL JUDGES BEFORE SENTENCING SHOULD, AS A MATTER OF
GOOD JUDICIAL ADMINISTRATION, UNAMBIGUOUSLY ADDRESS THEMSELVES TO THE
DEFENDANT.  HEREAFTER TRIAL JUDGES SHOULD LEAVE NO ROOM FOR DOUBT THAT
THE DEFENDANT HAS BEEN ISSUED A PERSONAL INVITATION TO SPEAK PRIOR TO
SENTENCING. 

IN NO. 179 PETITIONER CONTENDS THAT HIS SENTENCE WAS RENDERED ILLEGAL
BECAUSE THE DISTRICT JUDGE, AFTER SENTENCING HIM TO TWENTY YEARS FOR
BANK ROBBERY UNDER COURT 2, PROCEEDED UNDER COURT 3 TO SENTENCE HIM TO
TWENTY-FIVE YEARS FOR THE AGGRAVATED VERSION OF THE SAME CRIME.  THE
CLAIM IS THAT SINCE THE TWO COUNTS DID NOT CHARGE SEPARATE OFFENSES,
THE JUDGE'S POWER TO SENTENCE EXPIRED WITH THE IMPOSITION OF SENTENCE
UNDER COUNT 2 AND THAT FIVE YEARS SHOULD BE REMITTED FROM PETITIONER'S
CONCURRENT SENTENCE. 

THE GOVERNMENT CONCEDES THAT COUNT 3 DID NOT CHARGE A SEPARATE
OFFENSE, SEE HOLIDAY V. JOHNSTON, 313 U.S. 342, 349, AND THERE IS EVERY
INDICATION THAT THE DISTRICT JUDGE WAS OF THIS VIEW.  IN HIS CHARGE TO
THE JURY HE STATED: 

"THE THIRD COUNT IS A DIFFERENT TYPE OF COUNT.  THAT IS NOT A
SEPARATE OFFENSE.  I WILL SPEAK TO YOU LATER OF THE MANNER IN WHICH YOU
WILL HANDLE THE THIRD COUNT.  THAT IS NOT A SEPARATE OFFENSE ...  .
THAT IS NOT A SEPARATE COUNT, TO REPEAT, THAT IS AN AGGRAVATION OF THE
SECOND COUNT, ROBBING THE BANK." 

ALTHOUGH PETITIONER IS TECHNICALLY CORRECT THAT SENTENCES SHOULD NOT
HAVE BEEN IMPOSED ON BOTH COUNTS, THE REMEDY WHICH HE SEEKS DOES NOT
FOLLOW.  THIS IS NOT A CASE WHERE SENTENCE WAS PASSED ON TWO COUNTS
STATING ALTERNATIVE MEANS OF COMMITTING ONE OFFENSE; RATHER, THE THIRD
COUNT INVOLVED ADDITIONAL CHARACTERISTICS WHICH MADE THE OFFENSE AN
AGGRAVATED ONE - NAMELY, PUTTING PERSONS IN JEOPARDY OF LIFE BY USE OF
A DANGEROUS WEAPON.  PLAINLY ENOUGH, THE INTENTION OF THE DISTRICT
JUDGE WAS TO IMPOSE THE MAXIMUM SENTENCE OF TWENTY-FIVE YEARS FOR
AGGRAVATED BANK ROBBERY, AND THE FORMAL DEFECT IN HIS PROCEDURE SHOULD
NOT VITIATE HIS CONSIDERED JUDGMENT.  (FN3)  AFFIRMED. 

FN1  RULE 32(A) IN PERTINENT PART PROVIDES: 

"BEFORE IMPOSING SENTENCE THE COURT SHALL AFFORD THE DEFENDANT AN
OPPORTUNITY TO MAKE A STATEMENT IN HIS OWN BEHALF AND TO PRESENT ANY
INFORMATION IN MITIGATION OF PUNISHMENT." 

FN2  "WHOEVER, IN COMMITTING, OR IN ATTEMPTING TO COMMIT, ANY OFFENSE
DEFINED IN SUBSECTIONS (A) AND (B) OF THIS SECTION, ASSAULTS ANY
PERSON, OR PUTS IN JEOPARDY THE LIFE OF ANY PERSON BY THE USE OF A
DANGEROUS WEAPON OR DEVICE, SHALL BE FINED NOT MORE THAN $10,000 OR
IMPRISONED NOT MORE THAN TWENTY-FIVE YEARS, OR BOTH."  18 U.S.C. SEC.
2113(D). 

FN3  PETITIONER FURTHER COMPLAINS OF AN IMPROPER CHARGE TO THE JURY
ON COUNT 3.  RULE 35 DOES NOT ENCOMPASS ALL CLAIMS THAT COULD BE MADE
BY DIRECT APPEAL ATTACKING THE CONVICTION, BUT RATHER IS LIMITED TO
CHALLENGES THAT INVOLVE THE LEGALITY OF THE SENTENCE ITSELF. 

MR. JUSTICE STEWART, CONCURRING. 

I JOIN IN AFFIRMING THE JUDGMENTS.  RULE 32(A) DOES NOT SEEM TO ME
CLEARLY TO REQUIRE A DISTRICT JUDGE IN EVERY CASE TO VOLUNTEER TO THE
DEFENDANT AN OPPORTUNITY PERSONALLY TO MAKE A STATEMENT, WHEN THE
DEFENDANT HAS A LAWYER AT HIS SIDE WHO SPEAKS FULLY ON HIS BEHALF.  BUT
I DO THINK THE BETTER PRACTICE IN SENTENCING IS TO ASSURE THE DEFENDANT
AN EXPRESS OPPORTUNITY TO SPEAK FOR HIMSELF, IN ADDITION TO ANYTHING
THAT HIS LAWYER MAY HAVE TO SAY.  I WOULD APPLY SUCH A RULE
PROSPECTIVELY, IN THE EXERCISE OF OUR SUPERVISORY CAPACITY.  SEE COUCH
V. UNITED STATES, 235 F.2D 519. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

I AGREE THAT FEDERAL CRIMINAL RULE 32(A) MAKES IT MANDATORY FOR A
FEDERAL JUDGE BEFORE IMPOSING SENTENCE TO AFFORD EVERY CONVICTED
DEFENDANT AN OPPORTUNITY TO MAKE, IN PERSON AND NOT MERELY THROUGH
COUNSEL, A STATEMENT IN HIS OWN BEHALF PRESENTING ANY INFORMATION HE
WISHES IN MITIGATION OF PUNISHMENT AND THAT FAILURE TO AFFORD THIS
OPPORTUNITY TO THE DEFENDANT PERSONALLY MAKES A SENTENCE ILLEGAL.  I
AGREE TOO THAT THE GOVERNING LEGAL QUESTION IN DETERMINING WHETHER SUCH
AN OPPORTUNITY HAS BEEN AFFORDED UNDER RULE 32(A) IS "WHETHER THE TRIAL
JUDGE DID ADDRESS HIMSELF TO THE DEFENDANT PERSONALLY," SINCE IT WOULD
BE WHOLLY ARTIFICIAL TO REGARD THIS OPPORTUNITY AS HAVING BEEN AFFORDED
IN THE ABSENCE OF A SPECIFIC AND PERSONAL INVITATION TO SPEAK FROM THE
TRIAL JUDGE TO THE DEFENDANT.   (FN1)  THE VERY ESSENCE OF THE ANCIENT
COMMON-LAW RIGHT CALLED "ALLOCUTION" WHICH MR. JUSTICE FRANKFURTER
RECOGNIZES AS UNDERLYING RULE 32(A) HAS ALWAYS BEEN THE PUTTING OF THE
QUESTION TO THE DEFENDANT BY THE TRIAL JUDGE.  (FN2) 

I THINK THE RECORD IN THIS CASE CLEARLY SHOWS THAT THE DEFENDANT WAS
DENIED THIS OPPORTUNITY, THAT THE SENTENCE IMPOSED UPON HIM THEREFORE
WAS ILLEGAL AND FOR THIS REASON THAT THE CAUSE SHOULD, IN ACCORDANCE
WITH FEDERAL CRIMINAL RULE 35, BE SENT BACK TO THE DISTRICT COURT FOR
RESENTENCING AFTER COMPLIANCE WITH RULE 32(A).  MR. JUSTICE FRANKFURTER
REFUSES TO TAKE THIS COURSE, STATING THAT "WE DO NOT READ THE RECORD
BEFORE US TO HAVE DENIED THE DEFENDANT THE OPPORTUNITY" TO TALK TO THE
JUDGE ABOUT HIS SENTENCE.  THIS CONCLUSION APPARENTLY RESTS ON THE VIEW
THAT THE TRIAL JUDGE'S SINGLE QUESTION DEEMED PERTINENT TO THIS SUBJECT
- "'DID YOU WANT TO SAY SOMETHING?'  - MAY WELL HAVE BEEN DIRECTED TO
THE DEFENDANT AND NOT TO HIS COUNSEL."  THE OPINION GOES ON TO IMPLY
THAT MAYBE WHEN THE JUDGE ASKED "YOU" THE QUESTION HE CAST HIS EYE OR
NODDED HIS HEAD IN THE DEFENDANT'S DIRECTION, MAYBE THE DEFENDANT SAW
THE EYE CAST OR THE HEAD NOD, AND THEREFORE IT "MAY WELL BE THAT THE
DEFENDANT HIMSELF WAS RECOGNIZED AND SUFFICIENTLY APPRISED OF HIS RIGHT
TO SPEAK AND CHOSE TO EXERCISE THIS RIGHT THROUGH HIS COUNSEL."  ON
THIS CHAIN OF PERHAPS POSSIBLE, PUT PURELY IMAGINARY HAPPENINGS, PLUS
THE SEEMINGLY IRRELEVANT FACT THAT THE DEFENDANT "RAISED THIS CLAIM
SEVEN YEARS AFTER THE OCCURENCE," IT IS SAID THAT THE PETITIONER "HAS
FAILED TO MEET HIS BURDEN OF SHOWING THAT HE WAS NOT ACCORDED THE
PERSONAL RIGHT WHICH RULE 32(A) GUARANTEES, AND WE THEREFORE FIND THAT
HIS SENTENCE WAS NOT ILLEGAL." 

A CAREFUL EXAMINATION OF THE RECORD REVEALS THE UTTER IMPLAUSIBILITY
OF THESE IMAGINATIVE SUGGESTED ADDITIONS TO THE TRANSCRIPT.  THE TRIAL
JUDGE'S BARE QUESTION "DID YOU WANT TO SAY SOMETHING?"  FOLLOWS
IMMEDIATELY UPON A LENGTHY STATEMENT COVERING THREE PRINTED PAGES BY
THE COUNSEL FOR A CODEFENDANT ARGUING THAT HIS MOTION FOR A NEW TRIAL
SHOULD BE GRANTED BECAUSE OF THE WEAKNESS OF THE EVIDENCE,
INCONSISTENCIES IN TESTIMONY, AND LACK OF CREDIBILITY OF A GOVERNMENT
WITNESS.  THE COLLOQUY IN THE FOUR PAGES PRECEDING THAT LIKEWISE DOES
NOT TOUCH UPON THE QUESTION OF SENTENCING.  EVEN IF IT IS ASSUMED THAT
THE TRIAL JUDGE MIGHT HAVE BEEN SO THOUGHTLESS AS TO ADDRESS SO
UNSPECIFIC A QUESTION TO A LAYMAN AT THAT POINT IN THE PROCEEDINGS, CAN
IT SERIOUSLY BE BELIEVED THAT UNDER SUCH CIRCUMSTANCES THE DEFENDANT
WOULD HAVE UNDERSTOOD THE QUESTION TO BE INVITING HIM TO SPEAK ON THE
SUBJECT OF MITIGATING FACTORS TO BE CONSIDERED IN SENTENCING EVEN IF
THE JUDGE HAD NODDED IN HIS DIRECTION WHEN ASKING "DID YOU WANT TO SAY
SOMETHING?"  MOREOVER, THE ANSWER "YES, SIR" AND THE SUCCEEDING
STATEMENT CAME NOT FROM THE DEFENDANT, BUT FROM HIS COUNSEL (WHO WAS
NOT THE PRECEDING SPEAKER).  THE OBVIOUS IMPLICATION IS THE FACT
EXPLICITLY ADMITTED TWICE IN THE GOVERNMENT'S BRIEF IN THIS CASE: THAT
THE QUESTION WAS ADDRESSED TO DEFENDANT'S COUNSEL AND NOT TO DEFENDANT
HIMSELF.  (FN3)    I AM FORCED TO CONCLUDE THAT THE ACTUAL HOLDING IN
THIS CASE MAKES RULE 32(A) MEAN FAR LESS FOR THIS PARTICULAR DEFENDANT
THAN THE RULE IS DECLARED TO MEAN, AT LEAST FOR DEFENDANTS TRIED IN THE
FUTURE.  JUDGES ARE WARNED THAT HEREAFTER THEIR RECORDS MUST LEAVE NO
DOUBT THAT A "DEFENDANT HAS BEEN ISSUED A PERSONAL INVITATION TO SPEAK
PRIOR TO SENTENCING."  THIS, I THINK, IS THE CORRECT MEANING OF THE
RULE AS IT WAS ADOPTED, AND THIS DEFENDANT JUST LIKE ALL OTHERS SHOULD
BE ACCORDED HIS RIGHT UNDER IT.  HE SHOULD NOT BE DENIED THAT RIGHT
EITHER BECAUSE OF HIS CRIMINAL RECORD OR BECAUSE OF FEARS CONJURED UP
ABOUT THE NUMBER OF PRISONERS WHO MIGHT RAISE THE SAME QUESTION IN THE
EVENT OF A DECISION IN THIS DEFENDANT'S FAVOR.  BAD MEN, LIKE GOOD MEN,
ARE ENTITLED TO BE TRIED AND SENTENCED IN ACCORDANCE WITH LAW, AND WHEN
IT IS SHOWN TO US THAT A PERSON IS SERVING AN ILLEGAL SENTENCE OUR
OBLIGATION IS TO DIRECT THAT PROPER STEPS BE TAKEN TO CORRECT THE WRONG
DONE, WITHOUT REGARD TO THE CHARACTER OF A PARTICULAR DEFENDANT OR TO
THE POSSIBLE EFFECT ON OTHERS WHO MIGHT ALSO WANT TO CHALLENGE THE
LEGALITY OF THEIR SENTENCES AS THEY HAVE THE RIGHT TO DO "AT ANY TIME"
UNDER RULE 35.  IF IT HAS ANY RELEVANCE AT ALL, THE FACT THAT THERE MAY
BE OTHER PRISONERS IN THIS COUNTRY'S JAILS SERVING ILLEGAL SENTENCES
WOULD SEEM TO ME TO MAKE IT ALL THE MORE IMPERATIVE THAT WE GRANT
APPROPRIATE RELIEF IN THIS CASE RATHER THAN SEARCH FOR SOME OBVIOUSLY
DUBIOUS EXCUSE TO DENY THIS PETITIONER'S CLAIM. 

I DO NOT UNDERSTAND WHY IT IS NECESSARY OR LEGALLY CORRECT TO DEFEAT
THIS PRISONER'S CLAIM BY INVOKING WHAT APPEARS TO BE A WHOLLY NEW
DOCTRINE OF BURDEN OF PROOF.  WHAT, MAY I ASK, IS THE BURDEN A
DEFENDANT MUST MEET TO SHOW HE WAS NOT ACCORDED THE PERSONAL
OPPORTUNITY TO ADDRESS THE JUDGE BEFORE A SENTENCE IS IMPOSED?  IS IT
PROOF BEYOND A REASONABLE DOUBT, BY A PREPONDERANCE OF THE EVIDENCE, BY
THE OVERWHELMING WEIGHT OF THE EVIDENCE, OR WHAT?  I SUPPOSE FROM MR.
JUSTICE FRANKFURTER'S OPINION THAT IT WAS THE DUTY OF THIS DEFENDANT TO
SHOW UNDER SOME STANDARD THAT WHEN THE JUDGE SAID "DID YOU WANT TO SAY
SOMETHING?"  HE NEITHER POINTED HIS FINGER, CAST HIS EYE NOR NODDED HIS
HEAD IN THE DEFENDANT'S DIRECTION, AND THAT IT WAS INCUMBENT UPON THE
DEFENDANT TO MAKE THIS PROOF EVEN THOUGH THE GOVERNMENT ADMITTED THAT
THE QUESTION HAD BEEN ADDRESSED TO HIS COUNSEL AND NOT TO THE DEFENDANT
HIMSELF.  IT WOULD SEEM TO ME, EVEN IN THE ABSENCE OF THE GOVERNMENT'S
ADMISSION AS TO THE FACTUAL OCCURRENCE, THAT SINCE WHEN THE QUESTION
WAS ASKED DEFENDANT'S COUNSEL IMMEDIATELY MADE A STATEMENT, THE FAIR
INFERENCE IS THAT IF THERE WAS ANY "SIGNIFICANT CAST OF THE EYE OR  ...
NOD OF THE HEAD," IT WAS DIRECTED TOWARD COUNSEL WHO RESPONDED AND NOT
TOWARD THE DEFENDANT WHO SAID NOTHING.  YET IT IS SAID THAT DEFENDANT'S
CLAIM MUST BE DEFEATED BECAUSE HE FAILED TO OVERCOME AN INFERENCE,
WITHOUT BASIS IN LOGIC OR LAW, OF A FACT WHICH HAS BEEN EXPRESSLY
DISCLAIMED BY THE GOVERNMENT IN THIS CASE. 

THE LANGUAGE OF MR. JUSTICE FRANKFURTER'S OPINION DOES NOT JIBE WITH
THE HARSH RESULT REACHED IN REFUSING TO ACCORD TO PETITIONER THE
BENEFIT OF RULE 32(A).  AS HE POINTS OUT, THAT RULE EMBODIES THE
PRACTICE OF THE ENGLISH-SPEAKING WORLD FOR THREE CENTURIES OR MORE,
BASED AS HE PROPERLY SAYS UPON THE BELIEF THAT, "THE MOST PERSUASIVE
COUNSEL MAY NOT BE ABLE TO SPEAK FOR A DEFENDANT AS THE DEFENDANT
MIGHT, WITH HALTING ELOQUENCE, SPEAK FOR HIMSELF."  A RULE SO HIGHLY
PRIZED FOR SO SOUND A REASON FOR SO LONG A TIME DESERVES TO BE
RIGOROUSLY ENFORCED BY THIS COURT, NOT MERELY PRAISED IN RESOUNDING
GLITTERING GENERALITIES CALCULATED TO SOFTEN THE BLOW OF
NONENFORCEMENT. 

I WOULD REMAND THIS CASE FOR RESENTENCE AFTER COMPLIANCE WITH RULE
32(A). 

FN1  "AFTER BEING CONVICTED, THE DEFENDANT IS USUALLY SO CRUSHED AS
TO HESITATE TO MAKE DEMANDS LEST THEY BRING INCREASED PUNISHMENT.  THE
RULE (RULE 32(A)) CONTEMPLATES NO SUCH DEMAND, AND CLEARLY, WITHOUT THE
NECESSITY OF ANY DEMAND AT THAT STAGE OF THE TRIAL, THE DEFENDANT'S
LEGAL RIGHTS SHOULD BE ACCORDED TO HIM BY THE COURT."  MIXON V. UNITED
STATES, 214 F.2D 364, 366 (RIVES, J., CONCURRING). 

FN2  AN EXTENSIVE AND DETAILED REVIEW OF THE ENGLISH AND AMERICAN
COMMON LAW AND STATUTORY CASES ON THIS SUBJECT LED ONE AUTHOR TO BEGIN
HIS CONCLUSION WITH THE FOLLOWING SENTENCE:  "TODAY, AS ALWAYS,
ALLOCUTION IS AN AUTHORITATIVE ADDRESS BY THE COURT TO THE PRISONER AS
HE STANDS AT THE BAR FOR SENTENCE."  BARRETT, ALLOCUTION, 9 MO. L. REV.
115, 232, AT 254. 

FN3  "  ...  (R. NO. 70, PP. 4-18).  THEN THE COURT ASKED DEFENSE
COUNSEL IF HE WANTED TO SAY SOMETHING.  IN RESPONSE, COUNSEL SPOKE FOR
LENIENCY IN SENTENCING (R. NO. 70, PP. 18-19)."  BRIEF FOR THE UNITED
STATES, P. 11. 

"BEFORE SENTENCING, THE COURT SPECIFICALLY ADDRESSED COUNSEL:  'DID
YOU WANT TO SAY SOMETHING?'"  BRIEF FOR THE UNITED STATES, P. 31. 
..END :
















CLANCY V. UNITED STATES 365 U.S. 312 


NO. 88.  ARGUED JANUARY 10, 1961 - DECIDED FEBRUARY 27, 1961 - 276 F.2D
617, REVERSED. 


AT THE TRIAL IN A FEDERAL DISTRICT COURT AT WHICH PETITIONERS WERE
CONVICTED OF VIOLATING FEDERAL CRIMINAL STATUTES, GOVERNMENT WITNESSES
TESTIFIED TO CONVERSATIONS WITH CERTAIN OF THE PETITIONERS AND ADMITTED
THAT THEY SUBSEQUENTLY PREPARED MEMORANDA OF SUCH CONVERSATIONS. 
COUNSEL FOR PETITIONERS MOVED UNDER THE JENCKS ACT, 28 U.S.C. SEC.
3500, FOR PRODUCTION OF SUCH MEMORANDA, AND THE MOTIONS WERE DENIED. 
BEFORE THIS COURT, THE GOVERNMENT ALLEGED THAT, DESPITE DENIAL OF THE
MOTION FOR PRODUCTION, VERBATIM COPIES OF THESE MEMORANDA WERE IN FACT
DELIVERED TO COUNSEL FOR PETITIONERS, ALTHOUGH THE RECORD DID NOT SHOW
IT AND COUNSEL FOR PETITIONERS DENIED IT; AND THE GOVERNMENT CONTENDED
THAT THE CASE SHOULD MERELY BE REMANDED TO THE DISTRICT COURT TO
DETERMINE WHETHER THIS WAS SO.  HELD:  AT LEAST AS TO SOME OF THE
STATEMENTS, REVERSIBLE ERROR WAS COMMITTED, AND PETITIONERS ARE
ENTITLED TO A NEW TRIAL.  PP. 313-316. 

(A)  SUCH MEMORANDA WERE "STATEMENTS" WITHIN THE MEANING OF THE ACT. 
PP. 313-315. 

(B)  THIS COURT DEALS WITH THE RECORD AS IT FINDS IT.  SINCE THE
PRODUCTION OF AT LEAST SOME OF THE STATEMENTS WITHHELD WAS A RIGHT OF
THE DEFENDANTS, IT IS FOR THE DEFENSE, NOT THE DISTRICT COURT OR THIS
COURT, TO DETERMINE WHETHER THEY COULD BE UTILIZED EFFECTIVELY; AND
PETITIONERS ARE ENTITLED TO A NEW TRIAL.  PP. 315-316. 

CLANCY ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN IMPORTANT QUESTION UNDER 71 STAT. 595, 18
U.S.C. SEC. 3500, THE STATUTE SOMETIMES REFERRED TO AS THE JENCKS ACT,
AS IT DEALS WITH THE PROBLEMS PRESENTED IN OUR DECISION BY THAT NAME. 
JENCKS V. UNITED STATES, 353 U.S. 657.  PETITIONERS WERE CHARGED WITH
MAKING FALSE STATEMENTS (18 U.S.C. SEC. 1001), WITH ATTEMPTING TO EVADE
THE WAGERING EXCISE TAX (26 U.S.C. SEC. 7201), AND WITH CONSPIRING TO
DEFRAUD THE UNITED STATES OF INTERNAL REVENUE TAXES (18 U.S.C. SEC.
371).  THEY WERE FOUND GUILTY AND THE JUDGMENTS OF CONVICTION WERE
AFFIRMED.  276 F.2D 617.  THE CASE IS HERE ON A WRIT OF CERTIORARI. 
363 U.S. 836. 

AT THE TRIAL MINTON, A GOVERNMENT AGENT, TESTIFIED CONCERNING AN
INTERVIEW WITH PETITIONER, KASTNER, AT WHICH HE WAS PRESENT.  MINTON
TESTIFIED "I DID NOT TAKE ANY NOTES AT THE TIME, BUT AFTERWARDS I
RETURNED TO THE OFFICE AND MADE A MEMORANDUM OF THE INTERVIEW." 
COUNSEL FOR KASTNER ASKED THE COURT FOR THE PRODUCTION OF THAT
MEMORANDUM PURSUANT TO THE JENCKS ACT.  (FN1) 

OTHER GOVERNMENT WITNESSES TESTIFIED TO CONVERSATIONS THEY HAD HAD
WITH CLANCY, KASTNER, AND A THIRD PARTNER IN PETITIONERS' WAGERING
BUSINESS.  ONE OF THE WITNESSES, AGENT BUESCHER, TESTIFIED HE HAD TAKEN
NO NOTES DURING THESE INTERVIEWS, BUT HAD "COMPILED A MEMORANDUM" FROM
NOTES TAKEN AT THE TIME OF THE INTERVIEW BY THE SECOND WITNESS, AGENT
MOCHEL.  BOTH BUESCHER AND MOCHEL TESTIFIED THAT THEY HAD SIGNED THE
LATER MEMORANDA OF THE CONVERSATIONS.  COUNSEL FOR PETITIONERS
REQUESTED PRODUCTION OF THE MEMORANDA, AND THE REQUESTS WERE REFUSED. 

THE TRIAL COURT, THOUGH DIRECTING DELIVERY TO THE DEFENSE OF NOTES
MADE BY THE WITNESSES AT THE TIME OF THE INTERVIEWS, REFUSED THE
REQUESTS FOR THE MEMORANDA, SAYING THAT WRITTEN STATEMENTS WERE NOT
COVERED BY THE JENCKS ACT UNLESS THEY WERE MADE "CONTEMPORANEOUSLY"
WITH THE INTERVIEW.  THE GOVERNMENT NOW CONCEDES THAT THIS WAS AN
ERRONEOUS RULING, AS INDEED IT WAS.  EACH OF THESE STATEMENTS RELATED
"TO THE SUBJECT MATTER AS TO WHICH THE WITNESS HAS TESTIFIED."  (FN2)
EACH WAS A "STATEMENT" AS THAT WORD IS DEFINED IN THE ACT.  (FN3)  THE
REQUIREMENT THAT IT BE CONTEMPORANEOUS APPLIES ONLY TO "A SUBSTANTIALLY
VERBATIM RECITAL OF AN ORAL STATEMENT" MADE TO A GOVERNMENT AGENT. 
(FN4)  BY THE TERMS OF THE ACT, (FN5) "A WRITTEN STATEMENT MADE BY SAID
WITNESS AND SIGNED OR OTHERWISE ADOPTED OR APPROVED BY HIM" IS ALSO
INCLUDED.  THESE STATEMENTS FELL IN THAT CATEGORY AND SHOULD HAVE BEEN
PRODUCED.  CAMPBELL V. UNITED STATES, ANTE, P. 85.  AND SEE UNITED
STATES V. SHEER, 278 F.2D 65, 67-68.  AS THE SENATE REPORT ON THE BILL
THAT BECAME THE JENCKS ACT STATES:  (FN6) 

"THE COMMITTEE BELIEVES THAT LEGISLATION WOULD CLEARLY BE
UNCONSTITUTIONAL IF IT SOUGHT TO RESTRICT DUE PROCESS.  ON THE
CONTRARY, THE PROPOSED LEGISLATION, AS REPORTED, REAFFIRMS THE DECISION
OF THE SUPREME COURT IN ITS HOLDING THAT A DEFENDANT ON TRIAL IN A
CRIMINAL PROSECUTION IS ENTITLED TO REPORTS AND STATEMENTS IN
POSSESSION OF THE GOVERNMENT TOUCHING THE EVENTS AND ACTIVITIES AS TO
WHICH A GOVERNMENT WITNESS HAS TESTIFIED AT THE TRIAL. 

"THE PURPOSE OF THE PROPOSED LEGISLATION IS TO ESTABLISH A PROCEDURAL
DEVICE THAT WILL PROVIDE SUCH A DEFENDANT WITH AUTHENTICATED STATEMENTS
AND REPORTS OF GOVERNMENT WITNESSES WHICH RELATE DIRECTLY UPON HIS
TESTIMONY." 

THE GOVERNMENT, HOWEVER, CONTENDS THAT AS TO AGENT MINTON THE ERROR
WAS HARMLESS.  IT ALSO ASSERTS - THOUGH THE RECORD IS SILENT AND
COUNSEL FOR PETITIONERS DENY IT - THAT VERBATIM CARBON COPIES OF THE
REPORTS OF AGENTS BUESCHER AND MOCHEL WERE DELIVERED TO THE DEFENSE AT
THE TRIAL.  BUT SINCE ITS VERSION OF WHAT TRANSPIRED IS CONTESTED, THE
GOVERNMENT URGES THAT THE MOST WE DO IS TO REMAND THE CASE TO THE
DISTRICT COURT TO DETERMINE WHETHER VERBATIM COPIES OF THE REPORTS WERE
DELIVERED TO THE DEFENSE AT THE TRIAL.  IF THEY WERE SO DELIVERED, THE
GOVERNMENT ARGUES, THE COURT'S DENIAL OF THEIR PRODUCTION WAS HARMLESS
ERROR. 

WE DO NOT FOLLOW THAT SUGGESTION.  WE DEAL WITH THE RECORD AS WE FIND
IT, WHICH GIVES NO SUPPORT TO THE GOVERNMENT'S ASSERTION THAT VERBATIM
REPORTS WERE DELIVERED TO THE DEFENSE.  MOREOVER, THE GOVERNMENT'S
ASSERTION IS NOT A POSITIVE STATEMENT OF THE PROSECUTION.  THOSE WHO
PRESENT THE CASE HERE SAY WITH CANDOR THAT THEY SPEAK ONLY "ACCORDING
TO OUR INFORMATION," WHICH ADMITTEDLY FALLS SHORT OF AN ASSERTION THAT
THE COPIES WERE DELIVERED TO THE DEFENSE AT THE TRIAL.  SINCE THE
DEFENSE EARNESTLY DENIES THE STATEMENT, WE CAN ONLY CONCLUDE THAT ON
THE RECORD BEFORE US PETITIONERS WERE DENIED AN INSPECTION OF THE
DOCUMENTS TO WHICH THEY WERE ENTITLED. 

WE PUT TO ONE SIDE ROSENBERG V. UNITED STATES, 360 U.S. 367, WHERE A
FAILURE TO PRODUCE A DOCUMENT WAS CONSIDERED TO BE HARMLESS ERROR UNDER
THE PARTICULAR CIRCUMSTANCES OF THAT CASE.  WE DO NOT REACH THE
HARMLESS ERROR POINT BECAUSE, IF APPLICABLE, IT IS RELEVANT ONLY TO THE
REPORT OF ONE OF THE AGENTS, NOT TO THOSE OF THE OTHER TWO.  SINCE THE
PRODUCTION OF AT LEAST SOME OF THE STATEMENTS WITHHELD WAS A RIGHT OF
THE DEFENSE, IT IS NOT FOR US TO SPECULATE WHETHER THEY COULD HAVE BEEN
UTILIZED EFFECTIVELY.  AS WE SAID IN JENCKS V. UNITED STATES, SUPRA,
667: 

"FLAT CONTRADICTION BETWEEN THE WITNESS' TESTIMONY AND THE VERSION OF
THE EVENTS GIVEN IN HIS REPORT IS NOT THE ONLY TEST OF INCONSISTENCY. 
THE OMISSION FROM THE REPORTS OF FACTS RELATED AT THE TRIAL, OR A
CONTRAST IN EMPHASIS UPON THE SAME FACTS, EVEN A DIFFERENT ORDER OF
TREATMENT, ARE ALSO RELEVANT TO THE CROSS-EXAMINING PROCESS OF TESTING
THE CREDIBILITY OF A WITNESS' TRIAL TESTIMONY." 

ACCORDINGLY WE CONCLUDE THAT AT LEAST AS RESPECTS SOME OF THESE
STATEMENTS REVERSIBLE ERROR WAS COMMITTED AND THAT PETITIONERS ARE
ENTITLED TO A NEW TRIAL.  THERE ARE OTHER QUESTIONS RAISED THAT WE DO
NOT REACH, AS WE HAVE NO WAY OF KNOWING WHETHER THEY WILL ARISE ON A
NEW TRIAL.  REVERSED. 

FN1  18 U.S.C. SEC. 3500 PROVIDES IN RELEVANT PART: 

"(A)  IN ANY CRIMINAL PROSECUTION BROUGHT BY THE UNITED STATES, NO
STATEMENT OR REPORT IN THE POSSESSION OF THE UNITED STATES WHICH WAS
MADE BY A GOVERNMENT WITNESS OR PROSPECTIVE GOVERNMENT WITNESS (OTHER
THAN THE DEFENDANT) TO AN AGENT OF THE GOVERNMENT SHALL BE THE SUBJECT
OF SUBPOENA, DISCOVERY, OR INSPECTION UNTIL SAID WITNESS HAS TESTIFIED
ON DIRECT EXAMINATION IN THE TRIAL OF THE CASE. 

"(B)  AFTER A WITNESS CALLED BY THE UNITED STATES HAS TESTIFIED ON
DIRECT EXAMINATION, THE COURT SHALL, ON MOTION OF THE DEFENDANT, ORDER
THE UNITED STATES TO PRODUCE ANY STATEMENT (AS HEREINAFTER DEFINED) OF
THE WITNESS IN THE POSSESSION OF THE UNITED STATES WHICH RELATES TO THE
SUBJECT MATTER AS TO WHICH THE WITNESS HAS TESTIFIED.  IF THE ENTIRE
CONTENTS OF ANY SUCH STATEMENT RELATE TO THE SUBJECT MATTER OF THE
TESTIMONY OF THE WITNESS, THE COURT SHALL ORDER IT TO BE DELIVERED
DIRECTLY TO THE DEFENDANT FOR HIS EXAMINATION AND USE. 

     *         *         *         *         * 

"(E) THE TERM 'STATEMENT', AS USED IN SUBSECTIONS (B), (C), AND (D)
OF THIS SECTION IN RELATION TO ANY WITNESS CALLED BY THE UNITED STATES,
MEANS: 

"(1)  A WRITTEN STATEMENT MADE BY SAID WITNESS AND SIGNED OR
OTHERWISE ADOPTED OR APPROVED BY HIM; OR: 

"(2)  A STENOGRAPHIC, MECHANICAL, ELECTRICAL, OR OTHER RECORDING, OR
A TRANSCRIPTION THEREOF, WHICH IS A SUBSTANTIALLY VERBATIM RECITAL OF
AN ORAL STATEMENT MADE BY SAID WITNESS TO AN AGENT OF THE GOVERNMENT
AND RECORDED CONTEMPORANEOUSLY WITH THE MAKING OF SUCH ORAL
STATEMENT." 

FN2  18 U.S.C. SEC. 3500(B), SUPRA, NOTE 1. 

FN3  18 U.S.C. SEC. 3500(E), SUPRA, NOTE 1. 

FN4  18 U.S.C. SEC. 3500(E)(2), SUPRA, NOTE 1. 

FN5  18 U.S.C. SEC. 3500(E)(1), SUPRA, NOTE 1. 

FN6  S. REP. NO. 569, 85TH CONG., 1ST SESS., P. 2. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

PETITIONERS WERE CONVICTED OF TAX EVASION AND CONSPIRACY TO DEFRAUD
THE UNITED STATES IN THE OPERATION OF A HORSE RACE BOOKING ENTERPRISE. 
DURING THE TRIAL THE DEFENSE ASKED FOR THE PRODUCTION, UNDER THE JENCKS
ACT, OF CERTAIN SIGNED MEMORANDA OF INTERVIEWS OF PETITIONERS BY
GOVERNMENT AGENTS.  THE REQUEST WAS REFUSED AT THE TIME.  THE
GOVERNMENT, IN ITS BRIEF FILED NOVEMBER 14, 1960, AGREES THAT THIS
REFUSAL WAS ERROR.  IT INSISTS, HOWEVER, THAT VERBATIM COPIES OF THE
MEMORANDA WERE DELIVERED TO THE DEFENSE ATTORNEYS AT A LATER STAGE IN
THE TRIAL DURING THE CROSS-EXAMINATION OF ONE OF THE GOVERNMENT'S
AGENTS.  IT REQUESTED, "UNLESS PETITIONERS AGREE WITH THE GOVERNMENT'S
VERSION OF THE FACTS," A REMAND OF THE CASE IN ORDER THAT THE TRIAL
COURT MIGHT DETERMINE THIS SOLE QUESTION. 

THE ATTORNEYS FOR THE PETITIONERS MADE NO REPLY TO THIS CLAIM OF THE
GOVERNMENT UNTIL THURSDAY, JANUARY 5, 1961.  IN THEIR REPLY BRIEF ON
THAT DATE THEY CATEGORICALLY DENIED THAT VERBATIM COPIES HAD BEEN
DELIVERED.  THIS STATEMENT WAS LATER SUPPORTED BY AFFIDAVIT OF THE
ATTORNEYS. 

THE CASE CAME ON FOR ARGUMENT ON TUESDAY, JANUARY 10.  THE GOVERNMENT
ADVISED THAT THE GOVERNMENT EMPLOYEES INVOLVED IN THE CASE HAD NOT BEEN
AVAILABLE UNTIL THE PREVIOUS DAY AND HENCE COUNTER AFFIDAVITS HAD NOT
BEEN OBTAINABLE.  HOWEVER, IT OFFERED TO PRODUCE AFFIDAVITS OF THE
AGENTS, AS WELL AS THE ASSISTANT UNITED STATES ATTORNEY WHO TRIED THE
CASE, THAT WOULD SUPPORT ITS CLAIM.  IN EXPLAINING THE SITUATION THAT
CONFRONTED IT, THE GOVERNMENT COUNSEL STATED THAT HE HAD PERSONALLY
TALKED BY TELEPHONE TO THE UNITED STATES ATTORNEY AFTER PETITIONERS'
BRIEF WAS FILED.  THIS CONVERSATION, HE SAID, TOGETHER WITH THAT HAD
WITH THE ASSISTANT UNITED STATES ATTORNEY WHO TRIED THE CASE, CONFIRMED
THE EARLIER CONCLUSION THAT THE GOVERNMENT'S CONTENTION WAS CORRECT. 
HOWEVER, SINCE BOTH THE UNITED STATES ATTORNEY AND HIS ASSISTANT MADE
REFERENCE TO THE GOVERNMENT'S WITNESS (AGENT MOCHEL, WHO HAD WRITTEN
THE MEMORANDA IN CONTROVERSY), GOVERNMENT COUNSEL ALSO MADE EVERY
EFFORT TO REACH MOCHEL AND WAS SUCCESSFUL ON JANUARY 9.  MOCHEL ADVISED
THAT WHEN HE WAS ON THE WITNESS STAND DURING THE TRIAL HE HAD THE
CARBON COPIES OF HIS MEMORANDA IN HIS POCKET AND THAT UPON REQUEST HE
TOOK THEM OUT AND HANDED THEM EITHER (1) DIRECTLY TO PETITIONERS'
COUNSEL, OR (2) TO THE ASSISTANT UNITED STATES ATTORNEY TRYING THE
CASE, WHO PASSED THEM ON TO PETITIONERS' COUNSEL IN THE COURTROOM. 
THIS WAS VERIFIED BY THE ASSISTANT UNITED STATES ATTORNEY WHO, HOWEVER,
CANDIDLY ADMITTED THAT HE WAS SOMEWHAT "HAZY" AS TO WHAT DOCUMENTS WERE
ACTUALLY PASSED BY HIM TO COUNSEL.  THE RECORD INDICATES THAT HE HAD
MADE AVAILABLE TO PETITIONERS' COUNSEL A LARGE NUMBER OF DOCUMENTS,
INCLUDING THE ORIGINAL NOTES OF THE AGENTS.  THE GOVERNMENT INSISTS
THAT THIS FACTUAL SITUATION CREATES "SUFFICIENT DOUBT" TO REQUIRE A
HEARING BY THE TRIAL JUDGE AND A DETERMINATION OF WHETHER OR NOT THE
MEMORANDA IN CONTROVERSY WERE ACTUALLY DELIVERED TO PETITIONERS'
COUNSEL. 

THIS COURT, OF COURSE, CANNOT DETERMINE THESE CONFLICTING FACTUAL
ASSERTIONS ON AN AFFIDAVIT BASIS.  IN VIEW OF THE LATENESS OF
PETITIONERS' DENIAL, HOWEVER, THE GOVERNMENT WAS NOT AFFORDED
SUFFICIENT TIME TO SUPPLEMENT THE RECORD ON THE POINT.  THE ORIGINAL
RECORD LODGED HERE INDICATES THAT AGENT MOCHEL, IN HIS TESTIMONY, MADE
REFERENCE TO "MEMORANDA" AND, IN CONTEXT, THE INDICATIONS ARE THAT THE
"MEMORANDA" IN CONTROVERSY WERE AT THAT TIME IN THE HANDS OF
PETITIONERS' COUNSEL, WHO WERE QUESTIONING HIM.  UNDER THESE
CIRCUMSTANCES IT APPEARS TO ME THAT JUSTICE DOES REQUIRE THAT WE REMAND
THE CASE SOLELY FOR DETERMINATION OF THIS POINT.  IF THE VERBATIM
COPIES WERE NOT DELIVERED, NO HARM WILL HAVE BEEN DONE, FOR THE TRIAL
COURT COULD THEN SET ASIDE THE JUDGMENTS OF CONVICTION AND GRANT A NEW
TRIAL.  ON THE OTHER HAND, IF THE COPIES WERE ACTUALLY DELIVERED THERE
COULD HAVE BEEN NO PREJUDICIAL ERROR AND THE JUDGMENTS OF CONVICTION
SHOULD STAND. 

THE COURT, HOWEVER, REFUSES TO ORDER THIS DONE.  IT REVERSES THE CASE
ON THIS TECHNICALITY, REGARDLESS OF THE FACT THAT THE GOVERNMENT HAS
PERSUASIVE EVIDENCE THAT PETITIONERS' COUNSEL ACTUALLY HAD ACCESS TO
THE VERY DOCUMENTS ON WHICH ITS REVERSAL IS BASED.  THE COURT INDICATES
THAT THE GOVERNMENT'S CLAIM IS OUTSIDE THE RECORD.  HOWEVER, IF THE
MEMORANDA WERE IN FACT MADE AVAILABLE, AS THE GOVERNMENT CLAIMS, THEY
WERE DELIVERED DURING THE TRIAL AND THE RECORD DOES HAVE FLEETING
REFERENCES THAT SUPPORT SUCH A CONCLUSION.  IT WOULD BE A SIMPLE MATTER
FOR THESE REFERENCES TO BE MADE MORE COMPLETE AT A HEARING.  IN MY VIEW
IT IS ONLY FAIR THAT THE GOVERNMENT SHOULD BE GIVEN THIS OPPORTUNITY. 
MOREOVER, I NOTE THAT THE COURT HAS GRANTED JUST SUCH RELIEF IN MANY
CASES.  SEE CAMPBELL V. UNITED STATES, ANTE, P. 85 (1961); UNITED
STATES V. SHOTWELL MFG. CO., 355 U.S. 233 (1957); COMMUNIST PARTY V.
SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S. 115 (1956). 
..END :








TAMPA ELECTRIC CO. V. NASHVILLE COAL CO. 365 U.S. 320 


NO. 87.  ARGUED DECEMBER 15, 1960 - DECIDED FEBRUARY 27, 1961 - 276 F.2D
766, REVERSED. 


PETITIONER PRODUCES ELECTRIC ENERGY AND SELLS IT TO A 60-MILE BY 30
MILE SERVICE AREA IN THE VICINITY OF TAMPA, FLA.  IN 1954, IT HAD TWO
GENERATING PLANTS WHICH CONSUMED ONLY OIL IN THEIR BURNERS, AS DID ALL
ELECTRIC GENERATING PLANTS IN PENINSULAR FLORIDA.  IT DECIDED TO
CONSTRUCT A NEW GENERATING PLANT AND TO TRY BURNING COAL IN AT LEAST
TWO, AND POSSIBLY ALL, UNITS OF THAT PLANT; AND IT CONTRACTED TO
PURCHASE FROM RESPONDENTS ALL COAL IT WOULD REQUIRE AS BOILER FUEL AT
THE NEW PLANT OVER A 20-YEAR PERIOD.  PETITIONER'S ESTIMATED MAXIMUM
REQUIREMENTS EXCEEDED THE TOTAL CONSUMPTION OF COAL IN PENINSULAR
FLORIDA; BUT IT DID NOT AMOUNT TO MORE THAN 1% OF THE TOTAL AMOUNT OF
COAL OF THE SAME TYPE PRODUCED AND MARKETED BY THE 700 COAL SUPPLIERS
IN RESPONDENTS' PRODUCING AREA.  RESPONDENTS REPUDIATED THE CONTRACT ON
THE GROUND THAT IT WAS ILLEGAL UNDER THE ANTITRUST LAWS, AND PETITIONER
SUED FOR A DECLARATORY JUDGMENT THAT IT WAS VALID AND FOR ITS
ENFORCEMENT.  THE DISTRICT COURT DECLARED THE CONTRACT VIOLATIVE OF
SEC. 3 OF THE CLAYTON ACT AND DENIED ENFORCEMENT.  THE COURT OF APPEALS
AFFIRMED.  HELD:  THE JUDGMENT IS REVERSED.  PP. 321-335. 

1.  THE CONTRACT HERE INVOLVED DID NOT VIOLATE SEC. 3 OF THE CLAYTON
ACT.  PP. 325-335. 

(A) EVEN THOUGH A CONTRACT IS AN EXCLUSIVE-DEALING ARRANGEMENT, IT
DOES NOT VIOLATE SEC. 3 UNLESS ITS PERFORMANCE PROBABLY WOULD FORECLOSE
COMPETITION IN A SUBSTANTIAL SHARE OF THE LINE OF COMMERCE AFFECTED. 
PP. 325-328. 

(B)  IN ORDER FOR A CONTRACT TO VIOLATE SEC. 3 THE COMPETITION
FORECLOSED BY IT MUST CONSTITUTE A SUBSTANTIAL SHARE OF THE RELEVANT
MARKET.  PP. 328-329. 

(C)  ON THE RECORD IN THIS CASE, THE RELEVANT MARKET IS NOT
PENINSULAR FLORIDA, THE ENTIRE STATE OF FLORIDA OR FLORIDA AND GEORGIA
COMBINED; IT IS THE AREA IN WHICH RESPONDENTS AND THE OTHER 700
PRODUCERS OF THE KIND OF COAL HERE INVOLVED EFFECTIVELY COMPETE.  PP.
330-333. 

(D)  IN THE COMPETITIVE BITUMINOUS COAL MARKETING AREA HERE INVOLVED,
THE CONTRACT SUED UPON DOES NOT TEND TO FORECLOSE A SUBSTANTIAL VOLUME
OF COMPETITION.  PP. 333-335. 

2.  SINCE THE CONTRACT DOES NOT FALL WITHIN THE BROADER PROSCRIPTION
OF SEC. 3 OF THE CLAYTON ACT, IT IS NOT FORBIDDEN BY SEC. 1 OR SEC. 2
OF THE SHERMAN ACT.  P. 335. 

TAMPA ELECTRIC CO. V. NASHVILLE COAL CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO REVIEW A DECLARATORY JUDGMENT HOLDING
ILLEGAL UNDER SEC. 3 OF THE CLAYTON ACT (FN1) A REQUIREMENTS CONTRACT
BETWEEN THE PARTIES PROVIDING FOR THE PURCHASE BY PETITIONER OF ALL THE
COAL IT WOULD REQUIRE AS BOILER FUEL AT ITS GANNON STATION IN TAMPA,
FLORIDA, OVER A 20-YEAR PERIOD.  363 U.S. 836.  BOTH THE DISTRICT
COURT, 168 F. SUPP. 456, AND THE COURT OF APPEALS, 276 F.2D 766, JUDGE
WEICK DISSENTING, AGREED WITH RESPONDENTS THAT THE CONTRACT FELL WITHIN
THE PROSCRIPTION OF SEC. 3 AND THEREFORE WAS ILLEGAL AND
UNENFORCEABLE.  WE CANNOT AGREE THAT THE CONTRACT SUFFERS THE CLAIMED
ANTITRUST ILLEGALITY (FN2) AND, THEREFORE, DO NOT FIND IT NECESSARY TO
CONSIDER RESPONDENTS' ADDITIONAL ARGUMENT THAT SUCH ILLEGALITY IS A
DEFENSE TO THE ACTION AND A BAR TO ENFORCEABILITY. 

THE FACTS. 

PETITIONER TAMPA ELECTRIC COMPANY IS A PUBLIC UTILITY LOCATED IN
TAMPA, FLORIDA.  IT PRODUCES AND SELLS ELECTRIC ENERGY TO A SERVICE
AREA, INCLUDING THE CITY, EXTENDING FROM TAMPA BAY EASTWARD 60 MILES TO
THE CENTER OF THE STATE, AND SOME 30 MILES IN WIDTH.  AS OF 1954
PETITIONER OPERATED TWO ELECTRICAL GENERATING PLANTS COMPRISING A TOTAL
OF 11 INDIVIDUAL GENERATING UNITS, ALL OF WHICH CONSUMED OIL IN THEIR
BURNERS.  IN 1955 TAMPA ELECTRIC DECIDED TO EXPAND ITS FACILITIES BY
THE CONSTRUCTION OF AN ADDITIONAL GENERATING PLANT TO BE COMPRISED
ULTIMATELY OF SIX GENERATING UNITS, AND TO BE KNOWN AS THE "FRANCIS J.
GANNON STATION."  ALTHOUGH EVERY ELECTRICAL GENERATING PLANT IN
PENINSULAR FLORIDA BURNED OIL AT THAT TIME, TAMPA ELECTRIC DECIDED TO
TRY COAL AS BOILER FUEL IN THE FIRST TWO UNITS CONSTRUCTED AT THE
GANNON STATION.  ACCORDINGLY, IT CONTRACTED WITH THE RESPONDENTS (FN3)
TO FURNISH THE EXPECTED COAL REQUIREMENTS FOR THE UNITS.  THE
AGREEMENT, DATED MAY 23, 1955, EMBRACED TAMPA ELECTRIC'S "TOTAL
REQUIREMENTS OF FUEL  ...  FOR THE OPERATION OF ITS FIRST TWO UNITS TO
BE INSTALLED AT THE GANNON STATION  ...  NOT LESS THAN 225,000 TONS OF
COAL PER UNIT PER YEAR," FOR A PERIOD OF 20 YEARS.  THE CONTRACT
FURTHER PROVIDED THAT "IF DURING THE FIRST 10 YEARS OF THE TERM  ...
THE BUYER CONSTRUCTS ADDITIONAL UNITS AT GANNON IN WHICH COAL IS USED
AS THE FUEL, IT SHALL GIVE THE SELLER NOTICE THEREOF TWO YEARS PRIOR TO
THE COMPLETION OF SUCH UNIT OR UNITS AND UPON COMPLETION OF SAME THE
FUEL REQUIREMENTS THEREOF SHALL BE ADDED TO THIS CONTRACT."  IT WAS
UNDERSTOOD AND AGREED, HOWEVER, THAT "THE BUYER HAS THE OPTION TO BE
EXERCISED TWO YEARS PRIOR TO COMPLETION OF SAID UNIT OR UNITS OF
DETERMINING WHETHER COAL OR SOME OTHER FUEL SHALL BE USED IN SAME." 
TAMPA ELECTRIC HAD THE FURTHER OPTION OF REDUCING, UP TO 15%, THE
AMOUNT OF ITS COAL PURCHASES COVERED BY THE CONTRACT AFTER GIVING SIX
MONTHS' NOTICE OF AN INTENTION TO USE AS FUEL A BY-PRODUCT OF ANY OF
ITS LOCAL CUSTOMERS.  THE MINIMUM PRICE WAS SET AT $6.40 PER TON
DELIVERED, SUBJECT TO AN ESCALATION CLAUSE BASED ON LABOR COST AND
OTHER FACTORS.  DELIVERIES WERE ORIGINALLY EXPECTED TO BEGIN IN MARCH
1957, FOR THE FIRST UNIT, AND FOR THE SECOND UNIT AT THE COMPLETION OF
ITS CONSTRUCTION. 

IN APRIL 1957, SOON BEFORE THE FIRST COAL WAS ACTUALLY TO BE
DELIVERED AND AFTER TAMPA ELECTRIC, IN ORDER TO EQUIP ITS FIRST TWO
GANNON UNITS FOR THE USE OF COAL, HAD EXPENDED SOME $3,000,000 MORE
THAN THE COST OF CONSTRUCTING OIL-BURNING UNITS, AND AFTER RESPONDENTS
HAD EXPENDED APPROXIMATELY $7,500,000 READYING THEMSELVES TO PERFORM
THE CONTRACT, THE LATTER ADVISED PETITIONER THAT THE CONTRACT WAS
ILLEGAL UNDER THE ANTITRUST LAWS, WOULD THEREFORE NOT BE PERFORMED, AND
NO COAL WOULD BE DELIVERED.  THIS TURN OF EVENTS REQUIRED TAMPA
ELECTRIC TO LOOK ELSEWHERE FOR ITS COAL REQUIREMENTS.  THE FIRST UNIT
AT GANNON BEGAN OPERATING AUGUST 1, 1957, USING COAL PURCHASED ON A
TEMPORARY BASIS, BUT ON DECEMBER 23, 1957, A PURCHASE ORDER CONTRACT
FOR THE TOTAL COAL REQUIREMENTS OF THE GANNON STATION WAS MADE WITH
LOVE AND AMOS COAL COMPANY.  IT WAS FOR AN INDEFINITE PERIOD
CANCELLABLE IN 12 MONTHS' NOTICE BY EITHER PARTY, OR IMMEDIATELY UPON
TENDER OF PERFORMANCE BY RESPONDENTS UNDER THE CONTRACT SUED UPON
HERE.  THE MAXIMUM PRICE WAS $8.80 PER TON, DEPENDING UPON THE FREIGHT
RATE.  IN ITS PURCHASE ORDER TO THE LOVE AND AMOS COMPANY, TAMPA
ESTIMATED THAT ITS REQUIREMENTS AT THE GANNON STATION WOULD BE 350,000
TONS IN 1958; 700,000 TONS IN 1959 AND 1960; 1,000,000 TONS IN 1961;
AND WOULD INCREASE THEREAFTER, AS REQUIRED, TO "ABOUT 2,250,000 TONS
PER YEAR."  THE SECOND UNIT AT GANNON STATION COMMENCED OPERATION 14
MONTHS AFTER THE FIRST, I.E., OCTOBER 1958.  CONSTRUCTION OF A THIRD
UNIT, THE COAL FOR WHICH WAS TO HAVE BEEN PROVIDED UNDER THE ORIGINAL
CONTRACT, WAS ALSO BEGUN. 

THE RECORD INDICATES THAT THE TOTAL CONSUMPTION OF COAL IN PENINSULAR
FLORIDA, AS OF 1958, ASIDE FROM GANNON STATION, WAS APPROXIMATELY
700,000 TONS ANNUALLY.  IT FURTHER SHOWS THAT THERE WERE SOME 700 COAL
SUPPLIERS IN THE PRODUCING AREA WHERE RESPONDENTS OPERATED, AND THAT
TAMPA ELECTRIC'S ANTICIPATED MAXIMUM REQUIREMENTS AT GANNON STATION,
I.E., 2,250,000 TONS ANNUALLY, WOULD APPROXIMATE 1% OF THE TOTAL COAL
OF THE SAME TYPE PRODUCED AND MARKETED FROM RESPONDENTS' PRODUCING
AREA. 

PETITIONER BROUGHT THIS SUIT IN THE DISTRICT COURT PURSUANT TO 28
U.S.C. SEC. 2201, FOR A DECLARATION THAT ITS CONTRACT WITH RESPONDENTS
WAS VALID, AND FOR ENFORCEMENT ACCORDING TO ITS TERMS.  IN ADDITION TO
ITS CLAYTON ACT DEFENSE, RESPONDENTS CONTENDED THAT THE CONTRACT
VIOLATED BOTH SECS. 1 AND 2 OF THE SHERMAN ACT WHICH, IT CLAIMED,
LIKEWISE PRECLUDED ITS ENFORCEMENT.  THE DISTRICT COURT, HOWEVER,
GRANTED RESPONDENTS' MOTION FOR SUMMARY JUDGMENT ON THE SOLE GROUND
THAT THE UNDISPUTED FACTS, RECITED ABOVE, SHOWED THE CONTRACT TO BE A
VIOLATION OF SEC. 3 OF THE CLAYTON ACT.  THE COURT OF APPEALS AGREED. 
NEITHER COURT FOUND IT NECESSARY TO CONSIDER THE APPLICABILITY OF THE
SHERMAN ACT. 

DECISIONS OF DISTRICT COURT AND COURT OF APPEALS. 

BOTH COURTS ADMITTED THAT THE CONTRACT "DOES NOT EXPRESSLY CONTAIN
THE 'CONDITION'" THAT TAMPA ELECTRIC WOULD NOT USE OR DEAL IN THE COAL
OF RESPONDENTS' COMPETITORS.  NONETHELESS, THEY REASONED, THE "TOTAL
REQUIREMENTS" PROVISION HAD THE SAME PRACTICAL EFFECT, FOR IT PREVENTED
TAMPA ELECTRIC FOR A PERIOD OF 20 YEARS FROM BUYING COAL FROM ANY OTHER
SOURCE FOR USE AT THAT STATION.  EACH COURT CAST ASIDE AS "IRRELEVANT"
ARGUMENTS CITING THE USE OF OIL AS BOILER FUEL BY TAMPA ELECTRIC AT ITS
OTHER STATIONS, AND BY OTHER UTILITIES IN PENINSULAR FLORIDA, BECAUSE
OIL WAS NOT IN FACT USED AT GANNON STATION, AND THE POSSIBILITY OF
EXERCISE BY TAMPA ELECTRIC OF THE OPTION RESERVED TO IT TO BUILD OIL
BURNING UNITS AT GANNON WAS TOO REMOTE.  FOUND TO BE EQUALLY REMOTE WAS
THE POSSIBILITY OF TAMPA'S CONVERSION OF EXISTING OIL-BURNING UNITS AT
ITS OTHER STATIONS TO THE USE OF COAL WHICH WOULD NOT BE COVERED BY THE
CONTRACT WITH RESPONDENTS.  IT FOLLOWED, BOTH COURTS FOUND, THAT THE
"LINE OF COMMERCE" ON WHICH THE RESTRAINT WAS TO BE TESTED WAS COAL -
NOT BOILER FUELS.  BOTH COURTS COMPARED THE ESTIMATED COAL TONNAGE AS
TO WHICH THE CONTRACT PRE-EMPTED COMPETITION FOR 20 YEARS, NAMELY,
1,000,000 TONS A YEAR BY 1961, WITH THE PREVIOUS ANNUAL CONSUMPTION OF
PENINSULAR FLORIDA, 700,000 TONS.  EMPHASIZING THAT FACT AS WELL AS THE
CONTRACT VALUE OF THE COAL COVERED BY THE 20-YEAR TERM, I.E.,
$128,000,000, THEY HELD THAT SUCH VOLUME WAS NOT "INSIGNIFICANT OR
INSUBSTANTIAL" AND THAT THE EFFECT OF THE CONTRACT WOULD "BE TO
SUBSTANTIALLY LESSEN COMPETITION," IN VIOLATION OF THE ACT.  BOTH
COURTS WERE OF THE OPINION THAT IN VIEW OF THE EXECUTORY NATURE OF THE
CONTRACT, JUDICIAL ENFORCEMENT OF ANY PORTION OF IT COULD NOT BE
GRANTED WITHOUT DIRECTING A VIOLATION OF THE ACT ITSELF, AND
ENFORCEMENT WAS, THEREFORE, DENIED.  (FN4) 

APPLICATION OF SEC. 3 OF THE CLAYTON ACT. 

IN THE ALMOST HALF CENTURY SINCE CONGRESS ADOPTED THE CLAYTON ACT,
THIS COURT HAS BEEN CALLED UPON 10 TIMES, (FN5) INCLUDING THE PRESENT,
TO PASS UPON QUESTIONS ARISING UNDER SEC. 3.  STANDARD FASHION CO. V.
MAGRANE-HOUSTON CO., 258 U.S. 346 (1922), THE FIRST OF THE CASES, HELD
THAT THE ACT "SOUGHT TO REACH THE AGREEMENTS EMBRACED WITHIN ITS SPHERE
IN THEIR INCIPIENCY, AND IN THE SECTION UNDER CONSIDERATION TO
DETERMINE THEIR LEGALITY BY SPECIFIC TESTS OF ITS OWN  ...  ."  AT P.
356.  IN SUM, IT WAS DECLARED, SEC. 3 CONDEMNED SALES OR AGREEMENTS
"WHERE THE EFFECT OF SUCH SALE OR CONTRACT  ...  WOULD UNDER THE
CIRCUMSTANCES DISCLOSED PROBABLY LESSEN COMPETITION, OR CREATE AN
ACTUAL TENDENCY TO MONOPOLY."  AT PP. 356-357.  THIS WAS NOT TO SAY,
THE COURT EMPHASIZED, THAT THE ACT WAS INTENDED TO REACH EVERY "REMOTE
LESSENING" OF COMPETITION - ONLY THOSE WHICH WERE SUBSTANTIAL - BUT THE
COURT DID NOT DRAW THE LINE WHERE "REMOTE" ENDED AND "SUBSTANTIAL"
BEGAN.  THERE IN EVIDENCE, HOWEVER, WAS THE FACT THAT THE ACTIVITIES OF
TWO-FIFTHS OF THE NATION'S 52,000 PATTERN AGENCIES WERE AFFECTED BY THE
CHALLENGED DEVICE.  THEN, ONE WEEK LATER, FOLLOWED UNITED SHOE
MACHINERY CORP. V. UNITED STATES, 258 U.S. 451 (1922), WHICH HELD THAT
EVEN THOUGH A CONTRACT DOES "NOT CONTAIN SPECIFIC AGREEMENTS NOT TO USE
THE GOODS OF A COMPETITOR," IF "THE PRACTICAL EFFECT ...  IS TO PREVENT
SUCH USE," IT COMES WITHIN THE CONDITION OF THE SECTION AS TO
EXCLUSIVITY.  AT P. 457.  THE COURT ALSO HELD, AS IT HAD IN STANDARD
FASHION, SUPRA, THAT A FINDING OF DOMINATION OF THE RELEVANT MARKET BY
THE LESSOR OR SELLER WAS SUFFICIENT TO SUPPORT THE INFERENCE THAT
COMPETITION HAD OR WOULD BE SUBSTANTIALLY LESSENED BY THE CONTRACTS
INVOLVED THERE.  AS OF THAT TIME IT SEEMED CLEAR THAT IF "THE PRACTICAL
EFFECT" OF THE CONTRACT WAS TO PREVENT A LESSEE OR BUYER FROM USING THE
PRODUCTS OF A COMPETITOR OF THE LESSOR OR SELLER AND THE CONTRACT WOULD
THEREBY PROBABLY SUBSTANTIALLY LESSEN COMPETITION IN A LINE OF
COMMERCE, IT WAS PROSCRIBED.  A QUARTER OF A CENTURY LATER, IN
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392 (1947), THE COURT
HELD, AT LEAST IN TYING CASES, THAT THE NECESSITY OF DIRECT PROOF OF
THE ECONOMIC IMPACT OF SUCH A CONTRACT WAS NOT NECESSARY WHERE IT WAS
ESTABLISHED THAT "THE VOLUME OF BUSINESS AFFECTED" WAS NOT
"INSIGNIFICANT OR INSUBSTANTIAL" AND THAT THE EFFECT WAS "TO FORECLOSE
COMPETITORS FROM ANY SUBSTANTIAL MARKET."  AT P. 396.  IT WAS ONLY TWO
YEARS LATER, IN STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293 (1949),
THAT THE COURT AGAIN CONSIDERED SEC. 3 AND ITS APPLICATION TO EXCLUSIVE
SUPPLY OR, AS THEY ARE COMMONLY KNOWN, REQUIREMENTS CONTRACTS.  IT HELD
THAT SUCH CONTRACTS ARE PROSCRIBED BY SEC. 3 IF THEIR PRACTICAL EFFECT
IS TO PREVENT LESSEES OR PURCHASERS FROM USING OR DEALING IN THE GOODS,
ETC., OF A COMPETITOR OR COMPETITORS OF THE LESSOR OR SELLER AND
THEREBY "COMPETITION HAS BEEN FORECLOSED IN A SUBSTANTIAL SHARE OF THE
LINE OF COMMERCE AFFECTED."  AT P. 314. 

IN PRACTICAL APPLICATION, EVEN THOUGH A CONTRACT IS FOUND TO BE AN
EXCLUSIVE-DEALING ARRANGEMENT, IT DOES NOT VIOLATE THE SECTION UNLESS
THE COURT BELIEVES IT PROBABLE THAT PERFORMANCE OF THE CONTRACT WILL
FORECLOSE COMPETITION IN A SUBSTANTIAL SHARE OF THE LINE OF COMMERCE
AFFECTED.  FOLLOWING THE GUIDELINES OF EARLIER DECISIONS, CERTAIN
CONSIDERATIONS MUST BE TAKEN.  FIRST, THE LINE OF COMMERCE, I.E., THE
TYPE OF GOODS, WARES, OR MERCHANDISE, ETC., INVOLVED MUST BE
DETERMINED, WHERE IT IS IN CONTROVERSY, ON THE BASIS OF THE FACTS
PECULIAR TO THE CASE.  (FN6)  SECOND, THE AREA OF EFFECTIVE COMPETITION
IN THE KNOWN LINE OF COMMERCE MUST BE CHARTED BY CAREFUL SELECTION OF
THE MARKET AREA IN WHICH THE SELLER OPERATES, AND TO WHICH THE
PURCHASER CAN PRACTICABLY TURN FOR SUPPLIES.  IN SHORT, THE THREATENED
FORECLOSURE OF COMPETITION MUST BE IN RELATION TO THE MARKET AFFECTED. 
AS WAS SAID IN STANDARD OIL CO. V. UNITED STATES, SUPRA: 

"IT IS CLEAR, OF COURSE, THAT THE 'LINE OF COMMERCE' AFFECTED NEED
NOT BE NATIONWIDE, AT LEAST WHERE THE PURCHASERS CANNOT, AS A PRACTICAL
MATTER, TURN TO SUPPLIERS OUTSIDE THEIR OWN AREA.  ALTHOUGH THE EFFECT
ON COMPETITION WILL BE QUANTITATIVELY THE SAME IF A GIVEN VOLUME OF THE
INDUSTRY'S BUSINESS IS ASSUMED TO BE COVERED, WHETHER OR NOT THE
AFFECTED SOURCES OF SUPPLY ARE THOSE OF THE INDUSTRY AS A WHOLE OR ONLY
THOSE OF A PARTICULAR REGION, A PURELY QUANTITATIVE MEASURE OF THIS
EFFECT IS INADEQUATE BECAUSE THE NARROWER THE AREA OF COMPETITION, THE
GREATER THE COMPARATIVE EFFECT ON THE AREA'S COMPETITORS.  SINCE IT IS
THE PRESERVATION OF COMPETITION WHICH IS AT STAKE, THE SIGNIFICANT
PROPORTION OF COVERAGE IS THAT WITHIN THE AREA OF EFFECTIVE
COMPETITION."  AT P. 299, NOTE 5. 

IN THE STANDARD OIL CASE, THE AREA OF EFFECTIVE COMPETITION - THE
RELEVANT MARKET - WAS FOUND TO BE WHERE THE SELLER AND SOME 75 OF ITS
COMPETITORS SOLD PETROLEUM PRODUCTS.  CONVENIENTLY IDENTIFIED AS THE
WESTERN AREA, IT INCLUDED ARIZONA, CALIFORNIA, IDAHO, NEVADA, OREGON,
UTAH AND WASHINGTON.  SIMILARLY, IN UNITED STATES V. COLUMBIA STEEL
CO., 334 U.S. 495 (1948), A SEC. 1 SHERMAN ACT CASE, THIS COURT DECIDED
THE RELEVANT MARKET TO BE THE COMPETITIVE AREA IN WHICH CONSOLIDATED
MARKETED ITS PRODUCTS, I.E., 11 WESTERN STATES.  THE COURT FOUND
CONSOLIDATED'S SHARE OF THE NATIONWIDE MARKET FOR THE RELEVANT LINE OF
COMMERCE, ROLLED STEEL PRODUCTS, TO BE LESS THAN 1/2 OF 1%, AN
"INSIGNIFICANT FRACTION OF THE TOTAL MARKET," AT P. 508; AND ITS SHARE
OF THE MORE NARROW BUT ONLY RELEVANT MARKET, 3%, WAS DESCRIBED AS "A
SMALL PART," AT P. 511, NOT SUFFICIENT TO INJURE ANY COMPETITOR OF
UNITED STATES STEEL IN THAT AREA OR ELSEWHERE.    THIRD, AND LAST, THE
COMPETITION FORECLOSED BY THE CONTRACT MUST BE FOUND TO CONSTITUTE A
SUBSTANTIAL SHARE OF THE RELEVANT MARKET.  THAT IS TO SAY, THE
OPPORTUNITIES FOR OTHER TRADERS TO ENTER INTO OR REMAIN IN THAT MARKET
MUST BE SIGNIFICANTLY LIMITED AS WAS POINTED OUT IN STANDARD OIL CO. V.
UNITED STATES, SUPRA.  THERE THE IMPACT OF THE REQUIREMENTS CONTRACTS
WAS STUDIED IN THE SETTING OF THE LARGE NUMBER OF GASOLINE STATIONS -
5,937 OR 16% OF THE RETAIL OUTLETS IN THE RELEVANT MARKET - AND THE
LARGE NUMBER OF CONTRACTS, OVER 8,000, TOGETHER WITH THE GREAT VOLUME
OF PRODUCTS INVOLVED.  THIS COMBINATION DICTATED A FINDING THAT
"STANDARD'S USE OF THE CONTRACTS CREATED JUST SUCH A POTENTIAL CLOG ON
COMPETITION AS IT WAS THE PURPOSE OF SEC. 3 TO REMOVE" WHERE, AS THERE,
THE AFFECTED PROPORTION OF RETAIL SALES WAS SUBSTANTIAL.  AT P. 314. 
AS WE NOTED ABOVE, IN UNITED STATES V. COLUMBIA STEEL CO., SUPRA,
SUBSTANTIALITY WAS JUDGED ON A COMPARATIVE BASIS, I.E., CONSOLIDATED'S
USE OF ROLLED STEEL WAS "A SMALL PART" WHEN WEIGHED AGAINST THE TOTAL
VOLUME OF THAT PRODUCT IN THE RELEVANT MARKET. 

TO DETERMINE SUBSTANTIALITY IN A GIVEN CASE, IT IS NECESSARY TO WEIGH
THE PROBABLE EFFECT OF THE CONTRACT ON THE RELEVANT AREA OF EFFECTIVE
COMPETITION, TAKING INTO ACCOUNT THE RELATIVE STRENGTH OF THE PARTIES,
THE PROPORTIONATE VOLUME OF COMMERCE INVOLVED IN RELATION TO THE TOTAL
VOLUME OF COMMERCE IN THE RELEVANT MARKET AREA, AND THE PROBABLE
IMMEDIATE AND FUTURE EFFECTS WHICH PRE-EMPTION OF THAT SHARE OF THE
MARKET MIGHT HAVE ON EFFECTIVE COMPETITION THEREIN.  IT FOLLOWS THAT A
MERE SHOWING THAT THE CONTRACT ITSELF INVOLVES A SUBSTANTIAL NUMBER OF
DOLLARS IS ORDINARILY OF LITTLE CONSEQUENCE. 

THE APPLICATION OF SEC. 3 HERE. 

IN APPLYING THESE CONSIDERATIONS TO THE FACTS OF THE CASE BEFORE US,
IT APPEARS CLEAR THAT BOTH THE COURT OF APPEALS AND THE DISTRICT COURT
HAVE NOT GIVEN THE REQUIRED EFFECT TO A CONTROLLING FACTOR IN THE CASE
THE RELEVANT COMPETITIVE MARKET AREA.  THIS OMISSION, BY ITSELF,
REQUIRES REVERSAL, FOR, AS WE HAVE POINTED OUT, THE RELEVANT MARKET IS
THE PRIME FACTOR IN RELATION TO WHICH THE ULTIMATE QUESTION, WHETHER
THE CONTRACT FORECLOSES COMPETITION IN A SUBSTANTIAL SHARE OF THE LINE
OF COMMERCE INVOLVED, MUST BE DECIDED.  FOR THE PURPOSES OF THIS CASE,
THEREFORE, WE NEED NOT DECIDE TWO THRESHOLD QUESTIONS PRESSED BY TAMPA
ELECTRIC.  THEY ARE WHETHER THE CONTRACT IN FACT SATISFIES THE INITIAL
REQUIREMENT OF SEC. 3, I.E., WHETHER IT IS TRULY AN EXCLUSIVE-DEALING
ONE, AND, SECONDLY, WHETHER THE LINE OF COMMERCE IS BOILER FUELS,
INCLUDING COAL, OIL AND GAS, RATHER THAN COAL ALONE.  (FN7)  WE,
THEREFORE, FOR THE PURPOSES OF THIS CASE, ASSUME, BUT DO NOT DECIDE,
THAT THE CONTRACT IS AN EXCLUSIVE-DEALING ARRANGEMENT WITHIN THE
COMPASS OF SEC. 3, AND THAT THE LINE OF COMMERCE IS BITUMINOUS COAL. 

RELEVANT MARKET OF EFFECTIVE COMPETITION. 

NEITHER THE COURT OF APPEALS NOR THE DISTRICT COURT CONSIDERED IN
DETAIL THE QUESTION OF THE RELEVANT MARKET.  THEY DO SEEM, HOWEVER, TO
HAVE BEEN SATISFIED WITH INQUIRING ONLY AS TO COMPETITION WITHIN
"PENINSULAR FLORIDA."  IT WAS NOTED THAT THE TOTAL CONSUMPTION OF
PENINSULAR FLORIDA WAS 700,000 TONS OF COAL PER YEAR, ABOUT EQUAL TO
THE ESTIMATED 1959 REQUIREMENTS OF TAMPA ELECTRIC.  IT WAS ALSO POINTED
OUT THAT COAL ACCOUNTED FOR LESS THAN 6% OF THE FUEL CONSUMED IN THE
ENTIRE STATE.  (FN8)  THE DISTRICT COURT CONCLUDED THAT THOUGH THE
RESPONDENTS WERE ONLY ONE OF 700 COAL PRODUCERS WHO COULD SERVE THE
SAME MARKET, PENINSULAR FLORIDA, THE CONTRACT FOR A PERIOD OF 20 YEARS
EXCLUDED COMPETITORS FROM A SUBSTANTIAL AMOUNT OF TRADE.  RESPONDENTS
CONTEND THAT THE COAL TONNAGE COVERED BY THE CONTRACT MUST BE WEIGHED
AGAINST EITHER THE TOTAL CONSUMPTION OF COAL IN PENINSULAR FLORIDA, OR
ALL OF FLORIDA, OR THE BITUMINOUS COAL ACT AREA COMPRISING PENINSULAR
FLORIDA AND THE GEORGIA "FINGER," OR, AT MOST, ALL OF FLORIDA AND
GEORGIA.  IF THE LATTER AREA WERE CONSIDERED THE RELEVANT MARKET, TAMPA
ELECTRIC'S PROPOSED REQUIREMENTS WOULD BE 18% OF THE TONNAGE SOLD
THEREIN.  TAMPA ELECTRIC SAYS THAT BOTH COURTS AND RESPONDENTS ARE IN
ERROR, BECAUSE THE "700 COAL PRODUCERS WHO COULD SERVE" IT, AS
RECOGNIZED BY THE TRIAL COURT AND ADMITTED BY RESPONDENTS, OPERATED IN
THE APPALACHIAN COAL AREA AND THAT ITS CONTRACT REQUIREMENTS WERE LESS
THAN 1% OF THE TOTAL MARKETED PRODUCTION OF THESE PRODUCERS; THAT THE
RELEVANT EFFECTIVE AREA OF COMPETITION WAS THE AREA IN WHICH THESE
PRODUCERS OPERATED, AND IN WHICH THEY WERE WILLING TO COMPETE FOR THE
CONSUMER POTENTIAL. 

WE ARE PERSUADED THAT ON THE RECORD IN THIS CASE, NEITHER PENINSULAR
FLORIDA, NOR THE ENTIRE STATE OF FLORIDA, NOR FLORIDA AND GEORGIA
COMBINED CONSTITUTED THE RELEVANT MARKET OF EFFECTIVE COMPETITION.  WE
DO NOT BELIEVE THAT THE PIE WILL SLICE SO THINLY.  BY FAR THE BULK OF
THE OVERWHELMING TONNAGE MARKETED FROM THE SAME PRODUCING AREA AS
SERVES TAMPA IS SOLD OUTSIDE OF GEORGIA AND FLORIDA, AND THE PRODUCERS
WERE "EAGER" TO SELL MORE COAL IN THOSE STATES.  (FN9)  WHILE THE
RELEVANT COMPETITIVE MARKET IS NOT ORDINARILY SUSCEPTIBLE TO A "METES
AND BOUNDS" DEFINITION, CF. TIMES-PICAYUNE PUB. CO. V. UNITED STATES,
345 U.S. 594, 611, IT IS OF COURSE THE AREA IN WHICH RESPONDENTS AND
THE OTHER 700 PRODUCERS EFFECTIVELY COMPETE.  STANDARD OIL CO. V.
UNITED STATES, SUPRA.  THE RECORD SHOWS THAT, LIKE THE RESPONDENTS,
THEY SOLD BITUMINOUS COAL "SUITABLE FOR TAMPA'S REQUIREMENTS," MINED IN
PARTS OF PENNSYLVANIA, VIRGINIA, WEST VIRGINIA, KENTUCKY, TENNESSEE,
ALABAMA, OHIO AND ILLINOIS.  WE TAKE NOTICE OF THE FACT THAT THE
APPROXIMATE TOTAL BITUMINOUS COAL (AND LIGNITE) PRODUCT IN THE YEAR
1954 FROM THE DISTRICTS IN WHICH THESE 700 PRODUCERS ARE LOCATED WAS
359,289,000 TONS, OF WHICH SOME 290,567,000 TONS WERE SOLD ON THE OPEN
MARKET.  (FN10)  OF THE LATTER AMOUNT SOME 78,716,000 TONS WERE SOLD TO
ELECTRIC UTILITIES.  (FN11)  WE ALSO NOTE THAT IN 1954 FLORIDA AND
GEORGIA COMBINED CONSUMED AT LEAST 2,304,000 TONS, 1,100,000 OF WHICH
WERE USED BY ELECTRIC UTILITIES, AND THE SOURCES OF WHICH WERE MINES
LOCATED IN NO LESS THAN SEVEN STATES.  (FN12)  WE TAKE FURTHER NOTICE
THAT THE PRODUCTION AND MARKETING OF BITUMINOUS COAL (AND LIGNITE) FROM
THE SAME DISTRICTS, AND ASSUMEDLY EQUALLY AVAILABLE TO TAMPA ON A
COMMERCIALLY FEASIBLE BASIS, IS CURRENTLY ON A PAR WITH PRIOR YEARS. 
(FN13)  IN POINT OF STATISTICAL FACT, COAL CONSUMPTION IN THE COMBINED
FLORIDA-GEORGIA AREA HAS INCREASED SIGNIFICANTLY SINCE 1954.  IN 1959
MORE THAN 3,775,000 TONS WERE THERE CONSUMED, 2,913,000 BEING USED BY
ELECTRIC UTILITIES INCLUDING, PRESUMABLY, THE COAL USED BY THE
PETITIONER.  (FN14)  THE COAL CONTINUED TO COME FROM AT LEAST SEVEN
STATES.  (FN15)  FROM THESE STATISTICS IT CLEARLY APPEARS THAT THE
PROPORTIONATE VOLUME OF THE TOTAL RELEVANT COAL PRODUCT AS TO WHICH THE
CHALLENGED CONTRACT PRE-EMPTED COMPETITION, LESS THAN 1%, IS,
CONSERVATIVELY SPEAKING, QUITE INSUBSTANTIAL.  A MORE ACCURATE FIGURE,
EVEN ASSUMING PRE-EMPTION TO THE EXTENT OF THE MAXIMUM ANTICIPATED
TOTAL REQUIREMENTS, 2,250,000 TONS A YEAR, WOULD BE .77%. 

EFFECT ON COMPETITION IN THE RELEVANT MARKET. 

IT MAY WELL BE THAT IN THE CONTEXT OF ANTITRUST LEGISLATION
PROTRACTED REQUIREMENTS CONTRACTS ARE SUSPECT, BUT THEY HAVE NOT BEEN
DECLARED ILLEGAL PER SE.  EVEN THOUGH A SINGLE CONTRACT BETWEEN SINGLE
TRADERS MAY FALL WITHIN THE INITIAL BROAD PROSCRIPTION OF THE SECTION,
IT MUST ALSO SUFFER THE QUALIFYING DISABILITY, TENDENCY TO WORK A
SUBSTANTIAL - NOT REMOTE - LESSENING OF COMPETITION IN THE RELEVANT
COMPETITIVE MARKET.  IT IS URGED THAT THE PRESENT CONTRACT PRE-EMPTS
COMPETITION TO THE EXTENT OF PURCHASES WORTH PERHAPS $128,000,000,
(FN16) AND THAT THIS "IS, OF COURSE, NOT INSIGNIFICANT OR
INSUBSTANTIAL."  WHILE $128,000,000 IS A CONSIDERABLE SUM OF MONEY,
EVEN IN THESE DAYS, THE DOLLAR VOLUME, BY ITSELF, IS NOT THE TEST, AS
WE HAVE ALREADY POINTED OUT. 

THE REMAINING DETERMINATION, THEREFORE, IS WHETHER THE PRE-EMPTION OF
COMPETITION TO THE EXTENT OF THE TONNAGE INVOLVED TENDS TO
SUBSTANTIALLY FORECLOSE COMPETITION IN THE RELEVANT COAL MARKET.  WE
THINK NOT.  THAT MARKET SEES AN ANNUAL TRADE IN EXCESS OF 250,000,000
TONS OF COAL AND OVER A BILLION DOLLARS - MULTIPLIED BY 20 YEARS IT
RUNS INTO ASTRONOMICAL FIGURES.  THERE IS HERE NEITHER A SELLER WITH A
DOMINANT POSITION IN THE MARKET AS IN STANDARD FASHIONS, SUPRA; NOR
MYRIAD OUTLETS WITH SUBSTANTIAL SALES VOLUME, COUPLED WITH AN INDUSTRY
WIDE PRACTICE OF RELYING UPON EXCLUSIVE CONTRACTS, AS IN STANDARD OIL,
SUPRA; NOR A PLAINLY RESTRICTIVE TYING ARRANGEMENT AS IN INTERNATIONAL
SALT, SUPRA.  ON THE CONTRARY, WE SEEM TO HAVE ONLY THAT TYPE OF
CONTRACT WHICH "MAY WELL BE OF ECONOMIC ADVANTAGE TO BUYERS AS WELL AS
TO SELLERS."  STANDARD OIL CO. V. UNITED STATES, SUPRA, AT P. 306.  IN
THE CASE OF THE BUYER IT "MAY ASSURE SUPPLY," WHILE ON THE PART OF THE
SELLER IT "MAY MAKE POSSIBLE THE SUBSTANTIAL REDUCTION OF SELLING
EXPENSES, GIVE PROTECTION AGAINST PRICE FLUCTUATIONS, AND  ...  OFFER
THE POSSIBILITY OF A PREDICTABLE MARKET."  ID., AT 306-307.  THE 20
YEAR PERIOD OF THE CONTRACT IS SINGLED OUT AS THE PRINCIPAL VICE, BUT
AT LEAST IN THE CASE OF PUBLIC UTILITIES THE ASSURANCE OF A STEADY AND
AMPLE SUPPLY OF FUEL IS NECESSARY IN THE PUBLIC INTEREST.  OTHERWISE
CONSUMERS ARE LEFT UNPROTECTED AGAINST SERVICE FAILURES OWING TO
SHUTDOWNS; AND INCREASINGLY UNJUSTIFIED COSTS MIGHT RESULT IN MORE
BURDENSOME RATE STRUCTURES EVENTUALLY TO BE REFLECTED IN THE CONSUMER'S
BILL.  THE COMPELLING VALIDITY OF SUCH CONSIDERATIONS HAS BEEN
RECOGNIZED FULLY IN THE NATURAL GAS PUBLIC UTILITY FIELD.  THIS IS NOT
TO SAY THAT UTILITIES ARE IMMUNIZED FROM CLAYTON ACT PROSCRIPTIONS, BUT
MERELY THAT, IN JUDGING THE TERM OF A REQUIREMENTS CONTRACT IN RELATION
TO THE SUBSTANTIALITY OF THE FORECLOSURE OF COMPETITION, PARTICULARIZED
CONSIDERATIONS OF THE PARTIES' OPERATIONS ARE NOT IRRELEVANT.  IN
WEIGHING THE VARIOUS FACTORS, WE HAVE DECIDED THAT IN THE COMPETITIVE
BITUMINOUS COAL MARKETING AREA INVOLVED HERE THE CONTRACT SUED UPON
DOES NOT TEND TO FORECLOSE A SUBSTANTIAL VOLUME OF COMPETITION. 

WE NEED NOT DISCUSS THE RESPONDENTS' FURTHER CONTENTION THAT THE
CONTRACT ALSO VIOLATES SEC. 1 AND SEC. 2 OF THE SHERMAN ACT, FOR IF IT
DOES NOT FALL WITHIN THE BROADER PROSCRIPTION OF SEC. 3 OF THE CLAYTON
ACT IT FOLLOWS THAT IT IS NOT FORBIDDEN BY THOSE OF THE FORMER.  TIMES
PICAYUNE PUB. CO. V. UNITED STATES, SUPRA, AT PP. 608-609. 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  "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  ...  FOR USE, CONSUMPTION, OR RESALE WITHIN THE UNITED STATES
...  ON THE CONDITION, AGREEMENT, OR UNDERSTANDING THAT THE LESSEE OR
PURCHASER THEREOF SHALL NOT USE OR DEAL IN THE GOODS  ...  OF A
COMPETITOR OR COMPETITORS OF THE  ... 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.  SEC. 14. 

FN2  IN ADDITION TO THEIR CLAIM UNDER SEC. 3 OF THE CLAYTON ACT,
RESPONDENTS ARGUE THE CONTRACT IS ILLEGAL UNDER THE SHERMAN ACT, 15
U.S.C. SECS. 1-2. 

FN3  THE ORIGINAL CONTRACT WAS WITH POTTER TOWING COMPANY, AND BY
SUBSEQUENT AGREEMENTS WITH TAMPA ELECTRIC RESPONSIBILITY THEREUNDER WAS
ASSUMED BY RESPONDENT WEST KENTUCKY COAL COMPANY. 

FN4  CF. KELLY V. KOSUGA, 358 U.S. 516. 

FN5  FOR DISCUSSION OF PREVIOUS CASES, SEE STANDARD OIL CO. V. UNITED
STATES, 337 U.S. 293, 300-305. 

FN6  SEE INTERNATIONAL BOXING CLUB V. UNITED STATES, 358 U.S. 242. 

FN7  IN SUPPORT OF THESE CONTENTIONS PETITIONER URGES US TO CONSIDER
THAT IT REMAINS FREE TO CONVERT EXISTING OIL-BURNING UNITS AT ITS OTHER
PLANTS TO COAL-BURNING UNITS, THE FUEL FOR WHICH IT WOULD BE FREE TO
PURCHASE FROM ANY SELLER IN THE MARKET; ALSO THAT JUST AS IT IS
PERMITTED TO USE OIL AT ITS OTHER PLANTS, SO, TOO, IT MAY CONSTRUCT ALL
FUTURE GANNON UNITS AS OIL BURNERS; AND THAT IN ANY EVENT IT IS FREE TO
DRAW A MAXIMUM OF 15% OF ITS GANNON FUEL REQUIREMENTS FROM BY-PRODUCTS
OF LOCAL CUSTOMERS.  PETITIONER FURTHER ARGUES THAT ITS NOVEL RELIANCE
UPON COAL IN FACT CREATED NEW FUEL COMPETITION IN AN AREA THAT
THERETOFORE RELIED ALMOST EXCLUSIVELY UPON OIL AND, TO A LESSER EXTENT,
UPON NATURAL GAS. 

FN8  OIL AND, TO A LESSER EXTENT, NATURAL GAS ARE THE PRIMARY FUELS
CONSUMED IN FLORIDA. 

FN9  PEABODY COAL COMPANY OFFERED TO SUPPLY PETITIONER WITH COAL FROM
ITS MINES IN WESTERN KENTUCKY, FOR USE IN THE UNITS AT ANOTHER OF ITS
FLORIDA STATIONS, AND THAT OFFER PROMPTED A RENEGOTIATION OF THE PRICE
PETITIONER WAS PAYING FOR THE OIL THEN BEING CONSUMED AT THAT STATION. 

FN10  U.S. BUREAU OF THE CENSUS.  I U.S. CENSUS OF MINERAL
INDUSTRIES:  1954, SERIES: MI-12B, P. 4 (1957). 

FN11  ID., AT 12B-6. 

FN12  1,569,000 TONS FROM COUNTIES IN WEST VIRGINIA, VIRGINIA,
KENTUCKY, TENNESSEE AND NORTH CAROLINA; 412,000 TONS FROM COUNTIES IN
ALABAMA, GEORGIA AND TENNESSEE; THE BALANCE WAS PRODUCED IN OTHER
COUNTIES IN WEST VIRGINIA, VIRGINIA AND WESTERN KENTUCKY.  ID., AT 12B
10.    FN13  UNITED STATES DEPT. OF INTERIOR, BUREAU OF MINES, II
MINERALS YEARBOOK (FUELS), 1959. 

FN14  UNITED STATES DEPT. OF INTERIOR, BUREAU OF MINES, MINERAL
MARKET REPORT, M.M.S.  NO. 3035, P. 23 (1960).  THESE STATISTICS WERE
TAKEN FROM SOURCES CITED BY RESPONDENTS. 

FN15  1,787,000 TONS FROM CERTAIN COUNTIES IN WEST VIRGINIA,
VIRGINIA, KENTUCKY, TENNESSEE AND NORTH CAROLINA; 1,321,000 TONS FROM
COUNTIES IN ALABAMA, GEORGIA AND ELSEWHERE IN TENNESSEE; 665,000 TONS
FROM THE WESTERN KENTUCKY FIELDS; 2,000 TONS FROM OTHER COUNTIES IN
WEST VIRGINIA AND VIRGINIA.   IBID. 

FN16  IN THIS CONNECTION WE NOTE INCIDENTALLY THAT IN APPALACHIAN
COALS, INC., V. UNITED STATES, 288 U.S. 344, 369 (1933), CITED BY
RESPONDENTS, CHIEF JUSTICE HUGHES QUOTED TESTIMONY SHOWING THAT IN 1932
IT WAS NOTHING THOSE DAYS "FOR ONE INTEREST OR ONE CONCERN TO BUY
SEVERAL MILLION TONS OF COAL."  AT N. 7.  THE FINDINGS OF THE DISTRICT
COURT SHOWED THAT ONE UTILITY CONSUMED 2,485,000 TONS OF COAL A YEAR. 
OTHER CONCERNS HAD REQUIREMENTS RUNNING FROM 30,000 TO 250,000 TONS
ANNUALLY, WHILE A TEXTILE MANUFACTURER USED 600,000 TONS.  AT P. 370,
N. 8.  THE CHIEF JUSTICE ALSO STATED IN HIS OPINION THAT, WITHIN 24
COUNTIES IN KENTUCKY, TENNESSEE (IN BOTH OF WHICH RESPONDENTS OPERATE)
AND THEIR COMPETITIVE STATES OF VIRGINIA AND WEST VIRGINIA, "THERE ARE
OVER 1,620,000 ACRES OF COAL BEARING LAND, CONTAINING APPROXIMATELY
9,000,000,000 NET TONS OF RECOVERABLE COAL  ...  ."  AT P. 369. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT THE
DISTRICT COURT AND THE COURT OF APPEALS CORRECTLY DECIDED THIS CASE AND
WOULD THEREFORE AFFIRM THEIR JUDGMENTS. 
..END :










ARO MANUFACTURING CO., INC. V. CONVERTIBLE TOP REPLACEMENT CO., INC. 365
U.S. 336 


NO. 21.  ARGUED OCTOBER 13, 17, 1960 - DECIDED FEBRUARY 27, 1961 - 270
F.2D 200, REVERSED. 


THE OWNER OF ALL TERRITORIAL RIGHTS IN A CERTAIN AREA IN PATENT NO.
2,569,724, COVERING THE COMBINATION, IN AN AUTOMOBILE BODY, OF A
FLEXIBLE TOP FABRIC, SUPPORTING STRUCTURES, AND A MECHANISM FOR SEALING
THE FABRIC AGAINST THE SIDE OF THE AUTOMOBILE BODY TO KEEP OUT THE
RAIN, BROUGHT THIS INFRINGEMENT SUIT AGAINST PETITIONERS, WHICH
MANUFACTURE AND SELL REPLACEMENT FABRICS DESIGNED TO FIT THE MODELS OF
CONVERTIBLE AUTOMOBILES EQUIPPED WITH TOPS EMBODYING THE COMBINATION
COVERED BY THE PATENT.  THE PATENT COVERED ONLY THE COMBINATION OF
CERTAIN UNPATENTED COMPONENTS AND MADE NO CLAIM TO INVENTION BASED ON
THE FABRIC OR ON ITS SHAPE, PATTERN OR DESIGN.  HELD:  PETITIONERS WERE
NOT GUILTY OF EITHER DIRECT OR CONTRIBUTORY INFRINGEMENT OF THE
PATENT.  PP. 337-346. 

(A)  SINCE THE FABRIC WAS NO MORE THAN AN UNPATENTED ELEMENT OF THE
COMBINATION WHICH WAS CLAIMED AS THE INVENTION, AND THE PATENT DID NOT
CONFER A MONOPOLY OVER THE FABRIC OR ITS SHAPE, PETITIONERS'
MANUFACTURE AND SALE OF THE FABRIC DID NOT CONSTITUTE A DIRECT
INFRINGEMENT UNDER 35 U.S.C. SEC. 271(A).  PP. 339-340. 

(B)  EVEN THOUGH PETITIONERS KNEW THAT THE PURCHASERS INTENDED TO USE
THE FABRIC FOR REPLACEMENT PURPOSES ON AUTOMOBILE CONVERTIBLE TOPS
COVERED BY THE CLAIMS ON RESPONDENT'S COMBINATION PATENT, PETITIONERS'
MANUFACTURE AND SALE WOULD CONSTITUTE CONTRIBUTORY INFRINGEMENT UNDER
35 U.S.C. SEC. 271(C) ONLY IF SUCH A REPLACEMENT BY THE PURCHASER
HIMSELF COULD IN ITSELF CONSTITUTE A DIRECT INFRINGEMENT UNDER SEC.
271(A).  PP. 340-342. 

(C)  A CAR OWNER WOULD NOT INFRINGE THE COMBINATION PATENT BY
REPLACING THE WORN-OUT FABRIC OF THE PATENTED CONVERTIBLE TOP ON HIS
CAR, SINCE SUCH A REPLACEMENT BY THE CAR OWNER IS A PERMISSIBLE
"REPAIR" AND NOT AN INFRINGING "RECONSTRUCTION."  PP. 342-346. 

(D)  NO ELEMENT, NOT ITSELF SEPARATELY PATENTED, THAT CONSTITUTES ONE
OF THE ELEMENTS OF A COMBINATION PATENT IS ENTITLED TO PATENT MONOPOLY,
HOWEVER ESSENTIAL IT MAY BE TO THE PATENTED COMBINATION AND NO MATTER
HOW COSTLY OR DIFFICULT THE REPLACEMENT MAY BE.  PP. 344-346. 

ARO MANUFACTURING CO., INC. ET AL. V. CONVERTIBLE TOP REPLACEMENT CO.,
INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

ON APRIL 17, 1956, RESPONDENT, CONVERTIBLE TOP REPLACEMENT CO., INC.,
ACQUIRED A "TERRITORIAL GRANT" (COEXTENSIVE WITH "THE COMMONWEALTH OF
MASSACHUSETTS") OF ALL RIGHTS IN LETTERS PATENT NO. 2,569,724, COMMONLY
KNOWN AS THE MACKIE-DULUK PATENT, AND 10 DAYS LATER COMMENCED THIS
ACTION AGAINST PETITIONERS, ARO MANUFACTURING CO., INC., AND SEVERAL OF
ITS OFFICERS, TO ENJOIN THE ALLEGED INFRINGEMENT AND CONTRIBUTORY
INFRINGEMENT OF THE PATENT AND FOR AN ACCOUNTING OF PROFITS. 

THE PATENT - ONE FOR A "CONVERTIBLE FOLDING TOP WITH AUTOMATIC SEAL
AT REAR QUARTER" - COVERS THE COMBINATION, IN AN AUTOMOBILE BODY, OF A
FLEXIBLE TOP FABRIC, SUPPORTING STRUCTURES, AND A MECHANISM FOR SEALING
THE FABRIC AGAINST THE SIDE OF THE AUTOMOBILE BODY IN ORDER TO KEEP OUT
THE RAIN.  TOPS EMBODYING THE PATENT HAVE BEEN INSTALLED BY SEVERAL
AUTOMOBILE MANUFACTURERS IN VARIOUS MODELS OF CONVERTIBLES.  THE
COMPONENTS OF THE PATENTED COMBINATION, OTHER THAN THE FABRIC, NORMALLY
ARE USABLE FOR THE LIFETIME OF THE CAR, BUT THE FABRIC HAS A MUCH
SHORTER LIFE.  IT USUALLY SO SUFFERS FROM WEAR AND TEAR, OR SO
DETERIORATES IN APPEARANCE, AS TO BECOME "SPENT," AND NORMALLY IS
REPLACED, AFTER ABOUT THREE YEARS OF USE.  THE CONSEQUENT DEMAND FOR
REPLACEMENT FABRICS HAS GIVEN RISE TO A SUBSTANTIAL INDUSTRY, IN WHICH
PETITIONER, ARO MANUFACTURING CO., IS A NATIONAL LEADER.  IT
MANUFACTURES AND SELLS REPLACEMENT FABRICS DESIGNED TO FIT THE MODELS
OF CONVERTIBLES EQUIPPED WITH TOPS EMBODYING THE COMBINATION COVERED BY
THE PATENT IN SUIT. 

AFTER TRIAL WITHOUT A JURY, THE COURT HELD THAT THE PATENT WAS VALID,
INFRINGED AND CONTRIBUTORILY INFRINGED BY PETITIONERS.  IT ACCORDINGLY
ENJOINED THEM FROM FURTHER MANUFACTURE, SALE OR USE OF THESE
REPLACEMENT FABRICS, AND APPOINTED A MASTER TO HEAR EVIDENCE
CONCERNING, AND TO REPORT TO THE COURT ON, THE MATTER OF DAMAGES.  THE
COURT OF APPEALS AFFIRMED, 270 F.2D 200, AND WE GRANTED CERTIORARI, 362
U.S. 902. 

THE COURT OF APPEALS, AFTER HOLDING THAT THE PATENT WAS VALID, STATED
THAT THE "BASIC QUESTION" PRESENTED WAS WHETHER PETITIONERS' CONDUCT
CONSTITUTED "MAKING A PERMISSIBLE REPLACEMENT OF A PART (THE FABRIC)
WHICH EXPECTEDLY BECAME WORN OUT OR DEFECTIVE SOONER THAN OTHER PARTS
OF THE PATENTED COMBINATION" OR WHETHER SUCH REPLACEMENT CONSTITUTED "A
FORBIDDEN RECONSTRUCTION OF THE COMBINATION."  IT THEN HELD THAT
REPLACEMENT OF THE FABRIC CONSTITUTED RECONSTRUCTION OF THE COMBINATION
AND THUS INFRINGED OR CONTRIBUTORILY INFRINGED THE PATENT.  IT REACHED
THAT CONCLUSION PRINCIPALLY UPON THE GROUND THAT "THE LIFE OF THE
FABRIC IS NOT SO SHORT, NOR IS THE FABRIC SO CHEAP, THAT WE CAN SAFELY
ASSUME THAT AN OWNER WOULD RATIONALLY BELIEVE THAT IN REPLACING IT HE
WAS MAKING ONLY A MINOR REPAIR TO HIS TOP STRUCTURE."  270 F.2D, AT
202, 205. 

VALIDITY OF THE PATENT IS NOT CHALLENGED IN THIS COURT.  THE
PRINCIPAL, AND WE THINK THE DETERMINATIVE, QUESTION PRESENTED HERE IS
WHETHER THE OWNER OF A COMBINATION PATENT, COMPRISED ENTIRELY OF
UNPATENTED ELEMENTS, HAS A PATENT MONOPOLY ON THE MANUFACTURE, SALE OR
USE OF THE SEVERAL UNPATENTED COMPONENTS OF THE PATENTED COMBINATION. 
MORE SPECIFICALLY, AND LIMITED TO THE PARTICULAR CASE HERE, DOES THE
CAR OWNER INFRINGE (AND THE SUPPLIER CONTRIBUTORILY INFRINGE) THE
COMBINATION PATENT WHEN HE REPLACES THE SPENT FABRIC WITHOUT THE
PATENTEE'S CONSENT? 

THE FABRIC WITH WHICH WE DEAL HERE IS AN UNPATENTED ELEMENT OF
RESPONDENT'S COMBINATION PATENT, (FN1) WHICH COVERS ONLY THE
COMBINATION OF CERTAIN COMPONENTS, ONE OF WHICH IS A "FLEXIBLE TOP
MATERIAL."  (FN2)  THE PATENT MAKES NO CLAIM TO INVENTION BASED ON THE
FABRIC OR ON ITS SHAPE, PATTERN OR DESIGN.  WHETHER THE FABRIC OR ITS
SHAPE MIGHT HAVE BEEN PATENTABLE IS IMMATERIAL, (FN3) FOR THE FACT IS
THAT NEITHER THE FABRIC NOR ITS SHAPE HAS BEEN PATENTED.  NO CLAIM THAT
THE FABRIC OR ITS SHAPE, PATTERN OR DESIGN CONSTITUTED THE INVENTION
WAS MADE IN THE APPLICATION OR INCLUDED IN THE PATENT. 

SINCE THE PATENTEES NEVER CLAIMED THE FABRIC OR ITS SHAPE AS THEIR
INVENTION, AND THE CLAIMS MADE IN THE PATENT ARE THE SOLE MEASURE OF
THE GRANT, (FN4) THE FABRIC IS NO MORE THAN AN UNPATENTED ELEMENT OF
THE COMBINATION WHICH WAS CLAIMED AS THE INVENTION, AND THE PATENT DID
NOT CONFER A MONOPOLY OVER THE FABRIC OR ITS SHAPE.  IN MERCOID CORP.
V. MID-CONTINENT CO., 320 U.S. 661, 667, THIS COURT RULED THE POINT AS
FOLLOWS: 

"THE PATENT IS FOR A COMBINATION ONLY.  SINCE NONE OF THE SEPARATE
ELEMENTS OF THE COMBINATION IS CLAIMED AS THE INVENTION, NONE OF THEM
WHEN DEALT WITH SEPARATELY IS PROTECTED BY THE PATENT MONOPOLY." 

AND IN MERCOID CORP. V. MINNEAPOLIS-HONEYWELL CO., 320 U.S. 680, 684,
THE COURT SAID: 

"THE FACT THAT AN UNPATENTED PART OF A COMBINATION PATENT MAY
DISTINGUISH THE INVENTION DOES NOT DRAW TO IT THE PRIVILEGES OF A
PATENT.  THAT MAY BE DONE ONLY IN THE MANNER PROVIDED BY LAW.  HOWEVER
WORTHY IT MAY BE, HOWEVER ESSENTIAL TO THE PATENT, AN UNPATENTED PART
OF A COMBINATION PATENT IS NO MORE ENTITLED TO MONOPOLISTIC PROTECTION
THAN ANY OTHER UNPATENTED DEVICE." 

SEE ALSO MCCLAIN V. ORTMAYER, 141 U.S. 419, 423-424; PENNOCK V.
DIALOGUE, 2 PET. 1, 16. 

IT FOLLOWS THAT PETITIONERS' MANUFACTURE AND SALE OF THE FABRIC IS
NOT A DIRECT INFRINGEMENT UNDER 35 U.S.C. SEC. 271(A).  (FN5)  CIMIOTTI
UNHAIRING CO. V. AMERICAN FUR CO., 198 U.S. 399, 410; EAMES V. GODFREY,
1 WALL.  78, 79; PROUTY V. RUGGLES, 16 PET. 336, 341; U.S. INDUSTRIES,
INC., V. OTIS ENGINEERING CO., 254 F.2D 198, 203 (C.A. 5TH CIR.).  BUT
THE QUESTION REMAINS WHETHER PETITIONERS' MANUFACTURE AND SALE OF THE
FABRIC CONSTITUTE A CONTRIBUTORY INFRINGEMENT OF THE PATENT UNDER 35
U.S.C. SEC. 271(C).  (FN6)  IT IS ADMITTED THAT PETITIONERS KNOW THAT
THE PURCHASERS INTEND TO USE THE FABRIC FOR REPLACEMENT PURPOSES ON
AUTOMOBILE CONVERTIBLE TOPS WHICH ARE COVERED BY THE CLAIMS OF
RESPONDENT'S COMBINATION PATENT, AND SUCH MANUFACTURE AND SALE WITH
THAT KNOWLEDGE MIGHT WELL CONSTITUTE CONTRIBUTORY INFRINGEMENT UNDER
SEC. 271(C), IF, BUT ONLY IF, SUCH A REPLACEMENT BY THE PURCHASER
HIMSELF WOULD IN ITSELF CONSTITUTE A DIRECT INFRINGEMENT UNDER SEC.
271(A), FOR IT IS SETTLED THAT IF THERE IS NO DIRECT INFRINGEMENT OF A
PATENT THERE CAN BE NO CONTRIBUTORY INFRINGEMENT.  IN MERCOID V. MID
CONTINENT, SUPRA, IT WAS SAID:  "IN A WORD, IF THERE IS NO INFRINGEMENT
OF A PATENT THERE CAN BE NO CONTRIBUTORY INFRINGER," 320 U.S., AT 677,
AND THAT "IF THE PURCHASER AND USER COULD NOT BE AMERCED AS AN
INFRINGER CERTAINLY ONE WHO SOLD TO HIM  ...  CANNOT BE AMERCED FOR
CONTRIBUTING TO A NON-EXISTENT INFRINGEMENT."  ID., AT 674.  (FN7)  IT
IS PLAIN THAT SEC. 271(C) - A PART OF THE PATENT CODE ENACTED IN 1952 -
MADE NO CHANGE IN THE FUNDAMENTAL PRECEPT THAT THERE CAN BE NO
CONTRIBUTORY INFRINGEMENT IN THE ABSENCE OF A DIRECT INFRINGEMENT. 
THAT SECTION DEFINES CONTRIBUTORY INFRINGEMENT IN TERMS OF DIRECT
INFRINGEMENT - NAMELY THE SALE OF A COMPONENT OF A PATENTED COMBINATION
OR MACHINE FOR USE "IN AN INFRINGEMENT OF SUCH PATENT."  AND SEC.
271(A) OF THE NEW PATENT CODE, WHICH DEFINES "INFRINGEMENT," LEFT
INTACT THE ENTIRE BODY OF CASE LAW ON DIRECT INFRINGEMENT.  (FN8)  THE
DETERMINATIVE QUESTION, THEREFORE, COMES DOWN TO WHETHER THE CAR OWNER
WOULD INFRINGE THE COMBINATION PATENT BY REPLACING THE WORN-OUT FABRIC
ELEMENT OF THE PATENTED CONVERTIBLE TOP ON HIS CAR, OR EVEN MORE
SPECIFICALLY, WHETHER SUCH A REPLACEMENT BY THE CAR OWNER IS INFRINGING
"RECONSTRUCTION" OR PERMISSIBLE "REPAIR." 

THIS COURT'S DECISIONS SPECIFICALLY DEALING WITH WHETHER THE
REPLACEMENT OF AN UNPATENTED PART, IN A PATENTED COMBINATION, THAT HAS
WORN OUT, BEEN BROKEN OR OTHERWISE SPENT, IS PERMISSIBLE "REPAIR" OR
INGRINGING "RECONSTRUCTION," HAVE STEADFASTLY REFUSED TO EXTEND THE
PATENT MONOPOLY BEYOND THE TERMS OF THE GRANT.  WILSON V. SIMPSON, 9
HOW.  109 - DOUBTLESS THE LEADING CASE IN THIS COURT THAT DEALS WITH
THE DISTINCTION - CONCERNED A PATENTED PLANING MACHINE WHICH INCLUDED,
AS ELEMENTS, CERTAIN CUTTING KNIVES WHICH NORMALLY WORE OUT IN A FEW
MONTHS' USE.  THE PURCHASER WAS HELD TO HAVE THE RIGHT TO REPLACE THOSE
KNIVES WITHOUT THE PATENTEE'S CONSENT.  THE COURT HELD THAT, ALTHOUGH
THERE IS NO RIGHT TO "REBUILD" A PATENTED COMBINATION, THE ENTITY
"EXISTS" NOTWITHSTANDING THE FACT THAT DESTRUCTION OR IMPAIRMENT OF ONE
OF ITS ELEMENTS RENDERS IT INOPERABLE; AND THAT, ACCORDINGLY,
REPLACEMENT OF THAT WORN-OUT ESSENTIAL PART IS PERMISSIBLE RESTORATION
OF THE MACHINE TO THE ORIGINAL USE FOR WHICH IT WAS BOUGHT.  9 HOW., AT
123.  THE COURT EXPLAINED THAT IT IS "THE USE OF THE WHOLE" OF THE
COMBINATION WHICH A PURCHASER BUYS, AND THAT REPAIR OR REPLACEMENT OF
THE WORN-OUT, DAMAGED OR DESTROYED PART IS BUT AN EXERCISE OF THE RIGHT
"TO GIVE DURATION TO THAT WHICH HE OWNS, OR HAS A RIGHT TO USE AS A
WHOLE."  IBID.  (FN9) 

THE DISTILLED ESSENCE OF THE WILSON CASE WAS STATED BY JUDGE LEARNED
HAND IN UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 425
(C.A.2D CIR.):  "THE PATENT MONOPOLIST CANNOT PREVENT THOSE TO WHOM HE
SELLS FROM  ...  RECONDITIONING ARTICLES WORN BY USE, UNLESS THEY IN
FACT MAKE A NEW ARTICLE."  INSTEAD OF APPLYING THIS PLAIN AND PRACTICAL
TEST, THE COURT BELOW FOCUSED ATTENTION ON OPERATIVE FACTS NOT PROPERLY
DETERMINATIVE OF THE QUESTION OF PERMISSIBLE REPAIR VERSUS FORBIDDEN
RECONSTRUCTION.  THE COURT OF APPEALS FOUND THAT THE FABRIC "IS NOT A
MINOR OR RELATIVELY INEXPENSIVE COMPONENT" OF THE PATENTED COMBINATION,
OR AN ELEMENT THAT WOULD EXPECTEDLY WEAR OUT AFTER A VERY SHORT PERIOD
OF USE - ALTHOUGH ITS "EXPECTABLE LIFE SPAN" IS SHORTER THAN THAT OF
THE OTHER COMPONENTS - AND, FOR THESE REASONS, CONCLUDED THAT "AN OWNER
WOULD NOT RATIONALLY BELIEVE THAT  ...  HE WAS MAKING ONLY A MINOR
REPAIR" IN REPLACING THE WORN-OUT FABRIC, BUT THAT, INSTEAD, THE
REPLACEMENT "WOULD BE COUNTED A MAJOR RECONSTRUCTION."  270 F.2D, AT
205.  WE THINK THAT TEST WAS ERRONEOUS. 

RESPONDENT HAS STRENUOUSLY URGED, AS AN ADDITIONAL RELEVANT FACTOR,
THE "ESSENTIALNESS" OF THE FABRIC ELEMENT TO THE COMBINATION
CONSTITUTING THE INVENTION.  IT ARGUES THAT THE PARTICULAR SHAPE OF THE
FABRIC WAS THE ADVANCE IN THE ART - THE VERY "HEART" OF THE INVENTION -
WHICH BROUGHT THE COMBINATION UP TO THE INVENTIVE LEVEL, AND,
THEREFORE, CONCLUDES THAT ITS PATENT SHOULD BE HELD TO GRANT IT A
MONOPOLY ON THE FABRIC.  THE RULE FOR WHICH RESPONDENT CONTENDS IS:
THAT WHEN AN ELEMENT OF A PATENTED MACHINE OR COMBINATION IS RELATIVELY
DURABLE - EVEN THOUGH NOT SO DURABLE AS THE ENTIRE PATENTED DEVICE
WHICH THE OWNER PURCHASED - RELATIVELY EXPENSIVE, RELATIVELY DIFFICULT
TO REPLACE, AND IS AN "ESSENTIAL" OR "DISTINGUISHING" PART OF THE
PATENTED COMBINATION, ANY REPLACEMENT OF THAT ELEMENT, WHEN IT WEARS
OUT OR IS OTHERWISE SPENT, CONSTITUTES INFRINGING "RECONSTRUCTION,"
AND, THEREFORE, A NEW LICENSE MUST BE OBTAINED FROM, AND ANOTHER
ROYALTY PAID TO, THE PATENTEE FOR THAT PRIVILEGE. 

WE CANNOT AGREE.  FOR IF ANYTHING IS SETTLED IN THE PATENT LAW, IT IS
THAT THE COMBINATION PATENT COVERS ONLY THE TOTALITY OF THE ELEMENTS IN
THE CLAIM AND THAT NO ELEMENT, SEPARATELY VIEWED, IS WITHIN THE GRANT. 
SEE THE MERCOID CASES, SUPRA, 320 U.S., AT 667; 320 U.S., AT 684. 
(FN10)  THE BASIC FALLACY IN RESPONDENT'S POSITION IS THAT IT REQUIRES
THE ASCRIBING TO ONE ELEMENT OF THE PATENT COMBINATION THE STATUS OF
PATENTED INVENTION IN ITSELF.  YET THIS COURT HAS MADE IT CLEAR IN THE
TWO MERCOID CASES THAT THERE IS NO LEGALLY RECOGNIZABLE OR PROTECTED
"ESSENTIAL" ELEMENT, "GIST" OR "HEART" OF THE INVENTION IN A
COMBINATION PATENT.  IN MERCOID CORP. V. MID-CONTINENT CO., SUPRA, THE
COURT SAID: 

"THAT RESULT MAY NOT BE OBVIATED IN THE PRESENT CASE BY CALLING THE
COMBUSTION STOKER SWITCH THE 'HEART OF THE INVENTION' OR THE 'ADVANCE
IN THE ART.'  THE PATENT IS FOR A COMBINATION ONLY.  SINCE NONE OF THE
SEPARATE ELEMENTS OF THE COMBINATION IS CLAIMED AS THE INVENTION, NONE
OF THEM WHEN DEALT WITH SEPARATELY IS PROTECTED BY THE PATENT
MONOPOLY."  320 U.S., AT 667. 

AND IN MERCOID CORP. V. MINNEAPOLIS-HONEYWELL CO., SUPRA, THE COURT
SAID: 

"THE FACT THAT AN UNPATENTED PART OF A COMBINATION PATENT MAY
DISTINGUISH THE INVENTION DOES NOT DRAW TO IT THE PRIVILEGES OF A
PATENT.  THAT MAY BE DONE ONLY IN THE MANNER PROVIDED BY LAW.  HOWEVER
WORTHY IT MAY BE, HOWEVER ESSENTIAL TO THE PATENT, AN UNPATENTED PART
OF A COMBINATION PATENT IS NO MORE ENTITLED TO MONOPOLISTIC PROTECTION
THAN ANY OTHER UNPATENTED DEVICE."  320 U.S., AT 684. 

NO ELEMENT, NOT ITSELF SEPARATELY PATENTED, THAT CONSTITUTES ONE OF
THE ELEMENTS OF A COMBINATION PATENT IS ENTITLED TO PATENT MONOPOLY,
HOWEVER ESSENTIAL IT MAY BE TO THE PATENTED COMBINATION AND NO MATTER
HOW COSTLY OR DIFFICULT REPLACEMENT MAY BE.  WHILE THERE IS LANGUAGE IN
SOME LOWER COURT OPINIONS INDICATING THAT "REPAIR" OR "RECONSTRUCTION"
DEPENDS ON A NUMBER OF FACTORS, IT IS SIGNIFICANT THAT EACH OF THE
THREE CASES OF THIS COURT, CITED FOR THAT PROPOSITION, HOLDS THAT A
LICENSE TO USE A PATENTED COMBINATION INCLUDES THE RIGHT "TO PRESERVE
ITS FITNESS FOR USE SO FAR AS IT MAY BE AFFECTED BY WEAR OR BREAKAGE." 
LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO., 213 U.S. 325, 336;
HEYER V. DUPLICATOR MFG. CO., SUPRA, AT 102; AND WILSON V. SIMPSON,
SUPRA, AT 123.  WE HOLD THAT MAINTENANCE OF THE "USE OF THE WHOLE" OF
THE PATENTED COMBINATION THROUGH REPLACEMENT OF A SPENT, UNPATENTED
ELEMENT DOES NOT CONSTITUTE RECONSTRUCTION.    THE DECISIONS OF THIS
COURT REQUIRE THE CONCLUSION THAT RECONSTRUCTION OF A PATENTED ENTITY,
COMPRISED OF UNPATENTED ELEMENTS, IS LIMITED TO SUCH A TRUE
RECONSTRUCTION OF THE ENTITY AS TO "IN FACT MAKE A NEW ARTICLE," UNITED
STATES V. ALUMINUM CO. OF AMERICA, SUPRA, AT 425, AFTER THE ENTITY,
VIEWED AS A WHOLE, HAS BECOME SPENT.  IN ORDER TO CALL THE MONOPOLY,
CONFERRED BY THE PATENT GRANT, INTO PLAY FOR A SECOND TIME, IT MUST,
INDEED, BE A SECOND CREATION OF THE PATENTED ENTITY, AS, FOR EXAMPLE,
IN COTTON-TIE CO. V. SIMMONS, SUPRA.  MERE REPLACEMENT OF INDIVIDUAL
UNPATENTED PARTS, ONE AT A TIME, WHETHER OF THE SAME PART REPEATEDLY OR
DIFFERENT PARTS SUCCESSIVELY, IS NO MORE THAN THE LAWFUL RIGHT OF THE
OWNER TO REPAIR HIS PROPERTY.  MEASURED BY THIS TEST, THE REPLACEMENT
OF THE FABRIC INVOLVED IN THIS CASE MUST BE CHARACTERIZED AS
PERMISSIBLE "REPAIR," NOT "RECONSTRUCTION."  REVERSED. 

FN1  THERE ARE 10 CLAIMS IN THE PATENT.  CLAIMS 1 THROUGH 9 OF THE
PATENT EACH SPECIFICALLY BEGIN:  "IN A CONVERTIBLE AUTOMOBILE BODY, THE
COMBINATION OF  ...  ."  CLAIM 10 DOES NOT CONTAIN THE WORD
"COMBINATION" BUT NEVERTHELESS EQUALLY CLAIMS ONLY A COMBINATION. 

FN2  AMONG OTHER ELEMENTS IN THE CLAIMS ARE THE AUTOMOBILE BODY
STRUCTURE OR TONNEAU, A FOLDING BOW STRUCTURE, A SEALING STRIP, AND A
WIPING ARM. 

FN3  GRAVER MFG. CO. V. LINDE CO., 336 U.S. 271, 277; UNIVERSAL OIL
CO. V. GLOBE OIL & REFINING CO., 322 U.S. 471, 484; MILCOR STEEL CO. V.
FULLER CO., 316 U.S. 143, 145-146. 

FN4  MERCOID CORP. V. MID-CONTINENT CO., 320 U.S. 661, 667; MERCOID
CORP. V. MINNEAPOLIS-HONEYWELL CO., 320 U.S. 680, 684; MCCLAIN V.
ORTMAYER, 141 U.S. 419, 423-424; PENNOCK V. DIALOGUE, 2 PET. 1, 16. 

FN5  SECTION 271(A) PROVIDES: 

"EXCEPT AS OTHERWISE PROVIDED IN THIS TITLE, WHOEVER WITHOUT
AUTHORITY MAKES, USES OR SELLS ANY PATENTED INVENTION, WITHIN THE
UNITED STATES DURING THE TERM OF THE PATENT THEREFOR, INFRINGES THE
PATENT." 

FN6  SECTION 271(C) IS AS FOLLOWS: 

"WHOEVER SELLS A COMPONENT OF A PATENTED MACHINE, MANUFACTURE,
COMBINATION OR COMPOSITION, OR A MATERIAL OR APPARATUS FOR USE IN
PRACTICING A PATENTED PROCESS, CONSTITUTING A MATERIAL PART OF THE
INVENTION, KNOWING THE SAME TO BE ESPECIALLY MADE OR ESPECIALLY ADAPTED
FOR USE IN AN INFRINGEMENT OF SUCH PATENT, AND NOT A STAPLE ARTICLE OR
COMMODITY OF COMMERCE SUITABLE FOR SUBSTANTIAL NONINFRINGING USE, SHALL
BE LIABLE AS A CONTRIBUTORY INFRINGER." 

FN7  ALTHOUGH THESE STATEMENTS WERE MADE IN THE DISSENTING OPINIONS
OF MR. JUSTICE FRANKFURTER AND MR. JUSTICE ROBERTS, RESPECTIVELY, THERE
IS NOTHING IN THE MAJORITY OPINION REMOTELY SUGGESTING ANY DISAGREEMENT
WITH THE FUNDAMENTAL CONCLUSION THAT THERE CAN BE NO CONTRIBUTORY
INFRINGEMENT IN THE ABSENCE OF DIRECT INFRINGEMENT. 

FN8  THE REVISER'S NOTE ON SEC. 271(A) SPECIFICALLY STATED THAT IT IS
"DECLARATORY ONLY."  35 U.S.C.A., FOLLOWING SEC. 271. 

"THE PRIOR STATUTE HAD NO SECTION DEFINING OR DEALING WITH WHAT
CONSTITUTES INFRINGEMENT OF A PATENT," AND SEC. 271(A) WAS ADOPTED "FOR
COMPLETENESS."  FEDERICO, COMMENTARY ON THE NEW PATENT ACT, 35
U.S.C.A., PRECEDING SEC. 1, AT P. 51. 

FN9  NONE OF THIS COURT'S LATER DECISIONS DEALING WITH THE
DISTINCTIONS BETWEEN "REPAIR" AND "RECONSTRUCTION" HAVE ADDED TO THE
EXPOSITION MADE IN WILSON V. SIMPSON, SUPRA, AND THAT OPINION HAS LONG
BEEN RECOGNIZED AS THE COURT'S AUTHORITATIVE EXPRESSION ON THE
SUBJECT.  MORGAN ENVELOPE CO. V. ALBANY PAPER CO., 152 U.S. 425, AND
HEYER V. DUPLICATOR MFG. CO., 263 U.S. 100, HELD THAT AN OWNER OR
LICENSEE OF A PATENTED MACHINE OR COMBINATION DOES NOT INFRINGE THE
PATENT BY REPLACING AN UNPATENTED ELEMENT OF THE COMBINATION WHICH HAS
ONLY A TEMPORARY PERIOD OF USEFULNESS, SO THAT REPLACEMENT IS NECESSARY
FOR CONTINUED UTILIZATION OF THE MACHINE OR COMBINATION AS A WHOLE. 
THOSE CASES CAME CLEARLY WITHIN THE WILSON CASE.  COTTON-TIE CO. V.
SIMMONS, 106 U.S. 89, THE ONLY OTHER REPAIR-RECONSTRUCTION CASE DECIDED
BY THIS COURT SINCE WILSON, FOUND INFRINGEMENT BY ONE WHO BOUGHT UP, AS
SCRAP METAL, PATENTED METAL STRAPS, USED IN TYING COTTON BALES, AFTER
THE STRAPS HAD BEEN USED AND SEVERED (IN UNBINDING THE BALES), AND WHO
THEN WELDED OR OTHERWISE RECONNECTED THE STRAPS AT THE SEVERED POINT
AND RESOLD THEM FOR FURTHER USE IN BALING COTTON.  THE CASE IS
DISTINGUISHABLE ON ITS FACTS, AND THE FACT THAT THE TIES WERE MARKED
"LICENSED TO USE ONCE ONLY," WAS DEEMED OF IMPORTANCE BY THE COURT. 
CF. HENRY V. A.B. DICK CO., 224 U.S. 1. 

FN10  ALTHOUGH THE MERCOID CASES INVOLVE THE DOCTRINE OF PATENT
MISUSE, WHICH IS NOT AN ISSUE IN THIS CASE, THEY ALSO SPECIFICALLY
DELIMIT THE CHARACTER OF A COMBINATION PATENT MONOPOLY AND IT IS UPON
THAT MATTER THAT THEY ARE RELEVANT HERE. 

MR. JUSTICE BLACK, CONCURRING. 

I FULLY CONCUR IN THE JUDGMENT OF REVERSAL AND WITH THE OPINION OF
THE COURT BUT WANT TO EXPRESS SOME ADDITIONAL VIEWS BECAUSE OF THE
CONCURRING OPINION OF MY BROTHER BRENNAN AND THE DISSENTING OPINION OF
MY BROTHER HARLAN.  THE LATTER TWO OPINIONS, IN MY JUDGMENT, ATTEMPT TO
INTRODUCE WHOLLY UNNECESSARY AND UNDESIRABLE CONFUSIONS, INTRICACIES
AND COMPLEXITIES INTO WHAT HAS BEEN ESSENTIALLY A VERY SIMPLE QUESTION
UNDER THE OPINIONS OF THIS COURT, AND THAT IS:  HOW CAN A COURT DECIDE
WHETHER A PERSON WHO HAS BOUGHT AND OWNS A PATENTED COMMODITY COMPOSED
OF A COMBINATION OF UNPATENTED ELEMENTS IS ACTUALLY MAKING A NEW ONE SO
AS TO INFRINGE THE PATENT, RATHER THAN MERELY REPLACING A WORN-OUT PART
OR PARTS NECESSARY TO CONTINUE THE USE OF THE COMMODITY, WHICH DOES NOT
CONSTITUTE PATENT INFRINGEMENT?  I PUT THE QUESTION AS ONE OF DIRECT
INFRINGEMENT BECAUSE I AGREE WITH THE OTHER THREE OPINIONS IN THIS CASE
THAT THE PETITIONER ARO MANUFACTURING CO. HERE WHO CUT OUT AND SOLD
FABRICS TO REPLACE WORN-OUT COVERS IN PATENTED AUTOMOBILE TOPS CAN BE
GUILTY OF CONTRIBUTORY INFRINGEMENT ONLY IF AUTOMOBILE OWNERS WHO BUY
THE FABRICS AND USE THEM IN THEIR OWN CARS ARE THEMSELVES GUILTY OF
DIRECT INFRINGEMENTS AND LIABLE FOR TREBLE DAMAGES.  (FN1)  THE CRUCIAL
QUESTION HERE THEREFORE IS ONE OF DIRECT, NOR CONTRIBUTORY,
INFRINGEMENT.  FOR THIS REASON IT SEEMS TO ME THAT MOST OF THE TALK IN
THE CASE ABOUT CONTRIBUTORY INFRINGEMENT AND MISUSE OF PATENTS IS
CONFUSING AND BESIDE THE POINT.  FOR THE SAME REASON THE EMPHASIS IN
THIS COURT, THE DISTRICT COURT AND THE COURT OF APPEALS ON THE
RECODIFICATION (FN2) OF THE PATENT LAWS IN 1952 SEEMS TO ME TO BE OUT
OF PLACE.  THE LANGUAGE AND HISTORY OF THAT ACT SHOWS PLAINLY:  (1)
THAT CONGRESS WANTED TO CONTINUE IN FORCE, BUT NOT EXPAND, THE JUDGE
MADE DOCTRINE OF CONTRIBUTORY INFRINGEMENT UNDER WHICH A PERSON WHO
KNOWINGLY AIDS, ENCOURAGES OR ABETS THE DIRECT INFRINGEMENT OF A PATENT
IS TO BE HELD LIABLE AS A CONTRIBUTORY INFRINGER; (FN3) (2) THAT
CONGRESS DID NOT WANT PATENTEES TO BE BARRED FROM PROSECUTING THEIR
CLAIMS FOR DIRECT INFRINGEMENT MERELY BECAUSE THEY EXERCISED THEIR
RIGHT TO ASSERT A CLAIM IN OR OUT OF COURT FOR CONTRIBUTORY
INFRINGEMENT; (FN4) (3) THAT THE LONG-EXISTING SCOPE OF A PATENTEE'S
MONOPOLY RIGHTS WAS NOT TO BE EXPANDED BEYOND WHAT IT HAD ALWAYS BEEN,
THAT IS, THE EXCLUSIVE RIGHT TO MAKE, USE OR SELL A PATENTED INVENTION
DURING THE LIFE OF THE PATENT.  (FN5)  THE PRESENT CASE, THEREFORE,
NARROWS DOWN TO THIS AND NO MORE:  IS THE MAKING OR THE USE OF A NEW
PIECE OF FABRIC TO REPLACE THE WORN-OUT FABRIC COVER OF AN AUTOMOBILE
TOP ATTACHED TO AN AUTOMOBILE THAT THE OWNER HAS BOUGHT AND PAID FOR AS
HIS OWN AN INFRINGEMENT OF A PATENT ON THAT TOP?  NOTE IMMEDIATELY THAT
IF IT IS AN INFRINGEMENT IT MUST BE BECAUSE THE OWNER OF THE TOP, IN
DOING NOTHING BUT REPLACING THE WORN-OUT FABRIC, "MAKES" THE PATENTED
INVENTION WHICH IS THE TOP WITH ALL ITS PARTS.  COMMON SENSE AND PRIOR
DECISIONS OF THIS COURT REQUIRE US TO HOLD THAT AN AUTOMOBILE OWNER
DOES NOT "MAKE" A WHOLE TOP WHEN HE MERELY REPLACES ITS WORN-OUT FABRIC
COVER. 

LET US FIRST TAKE A QUICK LOOK AT THE TOP DESCRIBED IN THE PATENT. 
IT IS COMPOSED FIRST AND FOREMOST OF A METAL FRAME, NO PART OF WHICH
IS, OR COULD HAVE BEEN, PATENTED.  IT ALSO INCLUDES SEVERAL OTHER
PIECES OF METAL, ONE OF THEM CALLED A "WIPER," WHICH IS SIMPLY A PLAIN
PIECE IF METAL THAT IS NOT AND COULD NOT HAVE BEEN PATENTED.  AGAIN,
THERE IS A PIECE OF FABRIC CUT IN A CERTAIN SHAPE TO FIT AND COVER THE
UNPATENTED FRAME.  OF COURSE THIS FABRIC COULD NOT BE PATENTED UNLESS
IT HAD SOME PECULIAR NOVEL QUALITY OF ITS OWN, BUT NO SUCH
CHARACTERISTIC IS OR COULD HAVE BEEN CLAIMED.  THE DISTRICT COURT HELD
THAT THIS AGGREGATION OF NONPATENTABLE PARTS WAS PATENTABLE AS
ACHIEVING A NEW RESULT.  THE COURT OF APPEALS, WITHOUT PASSING ON THIS
QUESTION AT ALL, MERELY TOOK IT FOR GRANTED THAT A PATENTABLE
"DISCOVERY" HAD BEEN MADE.  I SHALL ALSO ACT ON THAT ASSUMPTION
ALTHOUGH I AM NOT SURE IN JUST WHAT RESPECT THE AGGREGATION OF THESE
COMMON COMPONENTS COULD POSSIBLY HAVE SERVED A NEW PURPOSE OR HAVE BEEN
THE RESULT OF ANYTHING MORE THAN THE SIMPLEST CHILDLIKE MECHANICAL
SKILL.  IN FACT, THE PATENTEE MUST HAVE KNOWN ALL ABOUT THE OLD
FASHIONED SURREY WITH THE FRINGE ON TOP AND WITH ISINGLASS CURTAINS YOU
COULD ROLL RIGHT DOWN IN CASE OF A CHANGE IN THE WEATHER.  THE TOP IS
ALSO REMINISCENT OF THE TOPS OF MODEL T FORDS WHICH BEGAN TO SCARE
HORSES ON COUNTRY ROADS NEARLY HALF A CENTURY AGO.  A READING OF THE
RECORD INDICATES THAT THE NEW DISCOVERY MIGHT BE THOUGHT TO INHERE IN
THE FACT THAT (A) THIS TOP PROTECTS FROM RAIN BETTER THAN ANY THAT HAD
PREVIOUSLY BEEN MANUFACTURED, (B) IT COULD BE MADE RAINPROOF FROM THE
INSIDE RATHER THAN REQUIRING SOME ONE TO GET OUTSIDE AND MANIPULATE
SNAPS, OR (C) THE FOLDING MATERIAL IS FASTENED "BELOW THE TOP OF THE
TONNEAU" AND "A WIPING ARM AUTOMATICALLY OPERATED BY THE BOW STRUCTURE
IS USED FOR WIPING THE INSIDE OF THE FOLDING MATERIAL AS THE TOP IS
RAISED AND PRESSING IT AGAINST THE TOP OF THE TONNEAU."  NONE OF THESE
ALLEGED ADDITIONS TO THE PRESENT STOCK OF SURREY AND TIN LIZZIE
KNOWLEDGE, HOWEVER, GIVES US MUCH AID IN DETERMINING THE REAL ISSUE
BEING DECIDED HERE, WHICH IS WHETHER REPLACING THE FABRIC AMOUNTS TO
THE "MAKING" OF A NEW TOP AND THUS A DIRECT INFRINGEMENT OF THE
PATENT.  IT IS OF IMPORTANCE IN CONSIDERING THIS QUESTION THAT THE
DISTRICT COURT FOUND, AND THE COURT OF APPEALS AGREED, THAT THE ONLY
THING THE DEFENDANT MADE WAS THE FABRIC PORTIONS OF CONVERTIBLE TOPS. 
CERTAINLY I SUPPOSE IT WOULD NOT BE CLAIMED THAT THE SALE OF UNSHAPED
WOOLEN FABRIC - A STAPLE ARTICLE OF COMMERCE - WOULD MAKE A TAILOR OR
MERCHANT GUILTY OF CONTRIBUTORY INFRINGEMENT IF HE SOLD IT TO THE OWNER
OF A PAIR OF PATENTED TROUSERS FOR PATCHING PURPOSES.  BUT EVIDENTLY
THE CONTENTION IS THAT WHEN PETITIONER HERE PUT HIS SCISSORS OR
WHATEVER CUTTING INSTRUMENT HE USED ON THE FABRIC AND SHAPED IT SO THAT
IT WOULD FIT THE TOP, HE WAS THEREBY AIDING THE TOP'S OWNER TO "MAKE" A
NEW TOP, OR AT LEAST TO "RECONSTRUCT" ONE FROM THE GROUND UP. NOTHING
IN ANY OF THE PRIOR CASES OF THIS COURT INDICATES THAT SUCH A
CONTENTION SHOULD BE SUSTAINED. 

THE CASE THAT MAY WELL BE CLASSIFIED AS THE LEADING ONE ON THE
SUBJECT OF "MAKING" OR "RECONSTRUCTION" AS DISTINGUISHED FROM "REPAIR"
IS WILSON V. SIMPSON, 9 HOW.  109, DECIDED IN 1850.  THAT CASE INVOLVED
A PATENT ON A PLANING MACHINE COMPOSED OF UNPATENTED PARTS DESCRIBED AS
THE FRAME, THE COGWHEELS, THE SHAFT, AND OTHER ELEMENTARY PARTS, WHICH,
WHEN PUT TOGETHER, CONSTITUTED WHAT WAS KNOWN AS THE "WOODWORTH PLANING
MACHINE."  ABLE COUNSEL ARGUED FOR THE PATENTEE THAT THE CUTTING
KNIVES, WHICH HAD TO BE REPLACED FROM TIME TO TIME, COULD NOT BE
REPLACED WITHOUT THEREBY INFRINGING THE PATENT.  THE CONTENTION WAS
THAT THE MACHINE CEASED TO EXIST OR HAVE ANY "MATERIAL EXISTENCE" THE
MOMENT ITS KNIVES WORE OUT, AND THAT FOR THIS REASON REPLACEMENT OF THE
KNIVES AMOUNTED TO A "MAKING" OF THE WHOLE PATENTED INVENTION WHICH
INFRINGED THE PATENTEE'S EXCLUSIVE RIGHT TO "MAKE, USE, AND VEND."  THE
COURT REFUSED TO ACCEPT THIS CONCEPTUALISTIC AND MISLEADING ARGUMENT AS
TO WHEN A TANGIBLE MACHINE CEASES TO HAVE A "MATERIAL EXISTENCE."  IT
DID AGREE THAT "WHEN THE MATERIAL OF THE COMBINATION CEASES TO EXIST,
IN WHATEVER WAY THAT MAY OCCUR, THE RIGHT TO RENEW IT DEPENDS UPON THE
RIGHT TO MAKE THE INVENTION.  IF THE RIGHT TO MAKE DOES NOT EXIST,
THERE IS NO RIGHT TO REBUILD THE COMBINATION."  ID., AT 123.  BUT THE
COURT THEN WENT ON TO ENUNCIATE WHAT HAS BEEN THE ACCEPTED RULE IN THIS
COURT EVER SINCE WITH RESPECT TO COMPONENT PARTS OF THE COMBINATION:
"WHEN THE WEARING OR INJURY IS PARTIAL, THEN REPAIR IS RESTORATION, AND
NOT RECONSTRUCTION  ...  .  AND IT IS NO MORE THAN THAT, THOUGH IT
SHALL BE A REPLACEMENT OF AN ESSENTIAL PART OF A COMBINATION."  IBID. 

IN FURTHER EXPLANATION THE COURT POINTED OUT THAT "FORM MAY BE GIVEN
TO A PIECE OF ANY MATERIAL, - WOOD, METAL, OR GLASS, - SO AS TO PRODUCE
AN ORIGINAL RESULT, OR TO AID THE EFFICIENCY OF ONE ALREADY KNOWN, AND
THAT WOULD BE THE SUBJECT FOR A PATENT."  IT WENT ON TO SAY THAT IF
THAT PATENTED ARTICLE SHOULD HAPPEN TO BE BROKEN SO THAT ITS PARTS
COULD NOT BE READJUSTED OR SO WORN OUT AND BEYOND REPAIR AS TO BE
WHOLLY USELESS, THEN A PURCHASER COULD NOT MAKE ANOTHER TO REPLACE IT
WITHOUT INFRINGING, BUT WOULD HAVE TO BUY A NEW ONE.  THIS BECAUSE THE
COURT SAID THAT WOULD AMOUNT TO AN "ENTIRE RECONSTRUCTION" OF THE
PATENTED ARTICLE.  "IF, HOWEVER," AND THIS IS OF CRUCIAL IMPORTANCE
WITH REFERENCE TO THE COMBINATION PATENT IN THE PRESENT CASE, "THIS
SAME THING IS A PART OF AN ORIGINAL COMBINATION, ESSENTIAL TO ITS USE,
THEN THE RIGHT TO REPAIR AND REPLACE RECURS."  ID., AT 124.    THE
COMMON-SENSE RULE OF WILSON V. SIMPSON WAS FOLLOWED IN HEYER V.
DUPLICATOR MFG. CO., 263 U.S. 100.  INVOLVED THERE WAS A COMBINATION
PATENT, A MULTIPLE COPYING MACHINE, "ONE ELEMENT OF WHICH," THE COURT
SAID, "IS A BAND OF GELATINE TO WHICH IS TRANSFERRED THE PRINT TO BE
MULTIPLIED AND WHICH YIELDS COPIES UP TO ABOUT A HUNDRED.  THIS BAND IS
ATTACHED TO A SPOOL OR SPINDLE WHICH FITS INTO THE MACHINE.  ANYONE MAY
MAKE AND SELL THE GELATINE COMPOSITION BUT THE GROUND OF RECOVERY WAS
THAT THE DEFENDANT MADE AND SOLD BANDS OF SIZES FITTED FOR USE IN THE
PLAINTIFF'S MACHINE AND ATTACHED THEM TO SPINDLES, WITH INTENT THAT
THEY SHOULD BE SO USED.  THE MAIN QUESTION IS WHETHER PURCHASERS OF
THESE MACHINES HAVE A RIGHT TO REPLACE THE GELATINE BANDS FROM ANY
SOURCE THAT THEY CHOOSE.  IF THEY HAVE THAT RIGHT THE DEFENDANT IN
SELLING TO THEM DOES NO WRONG."  ID., AT 101.  A UNANIMOUS COURT,
SPEAKING THROUGH MR. JUSTICE HOLMES, RECOGNIZED THAT THE RULE OF WILSON
V. SIMPSON DISPOSED OF THIS QUESTION, SAYING THAT "SINCE WILSON V.
SIMPSON, 9 HOW.  109, 123, IT HAS BEEN THE ESTABLISHED LAW THAT A
PATENTEE HAS NOT 'A MORE EQUITABLE RIGHT TO FORCE THE DISUSE OF THE
MACHINE ENTIRELY, ON ACCOUNT OF THE INOPERATIVENESS OF A PART OF IT,
THAN THE PURCHASER HAS TO REPAIR, WHO HAS, IN THE WHOLE OF IT, A RIGHT
OF USE.'"  263 U.S., AT 101.  LIKE THE BANDS OF GELATINE IN HEYER, THE
FABRIC IN THE PRESENT CASE IS A COMMON ARTICLE OF COMMERCE, AND ALSO
LIKE THE GELATINE IT HAS TO HAVE A SPECIAL FORM TO FIT INTO THE
COMBINATION. 

NONE OF THIS COURT'S CASES RELIED UPON BY MY BROTHERS HARLAN AND
BRENNAN JUSTIFIES ADOPTION OF THE SUPPOSED GUIDES AND STANDARDS
REFERRED TO IN THEIR OPINIONS.  DECIDING WHETHER A PATENTED ARTICLE IS
"MADE" DOES NOT DEPEND ON WHETHER AN UNPATENTED ELEMENT OF IT IS
PERISHABLE, OR HOW LONG SOME OF THE ELEMENTS LAST, OR WHAT THE
PATENTEE'S OR A PURCHASER'S INTENTIONS WERE ABOUT THEM, REGARDLESS OF
WHETHER THE APPLICATION OF SUCH STANDARDS IS CONSIDERED A QUESTION OF
LAW, AS IT IS BY MR. JUSTICE BRENNAN, OR A QUESTION OF FACT, AS IT IS
BY MR. JUSTICE HARLAN.  THE HOLDINGS OF PRIOR CASES IN THIS COURT HAVE
NOT ACTUALLY RESTED ON SUCH MINOR AND INSIGNIFICANT FACTORS IN
DETERMINING WHEN AN ARTICLE HAS BEEN "MADE" AND WHEN IT HAS NOT.  A
CASE IN WHICH ONLY A MINIMAL COMPONENT HAS BEEN OMITTED FROM A "MAKING"
OF THE COMBINATION, SUCH AS THE EXTREME EXAMPLE OF OMISSION OF A SINGLE
BOLT FROM A PATENTED MACHINE OR A BUTTON FROM A PATENTED GARMENT, MIGHT
CALL UPON THIS COURT TO ARTICULATE SOME RATHER OBVIOUS REFINEMENTS TO
THIS SIMPLE TEST OF "MAKING."  (FN6)  BUT THIS IS BY NO MEANS SUCH A
CASE AND IT IS DANGEROUSLY MISLEADING TO SUGGEST THAT SO CLEAR A CASE
AS THIS ONE REQUIRES THE APPLICATION OF A PANDORA'S FLOCK OF
INSIGNIFICANT STANDARDS, ESPECIALLY WHEN IT IS RECOGNIZED, AS IT MUST
BE UPON ANALYSIS, THAT CONSISTENT APPLICATION OF THE STANDARDS
SUGGESTED WOULD ACTUALLY CHANGE THE BASIC TEST FROM "MAKING" TO
SOMETHING NOT SATISFACTORILY DEFINED BUT INDISPUTABLY DIFFERENT.  AND
SURELY THE SCOPE OF A PATENT SHOULD NEVER DEPEND UPON A PSYCHOANALYSIS
OF THE PATENTEE'S OR PURCHASER'S INTENTIONS, A TEST WHICH CAN ONLY
CONFOUND CONFUSION.  (FN7)  THE COMMON SENSE OF THE WHOLE MATTER IS, AS
RECOGNIZED IN THE WILSON CASE AND AGAIN IN THE OPINION OF THE COURT
TODAY, THAT IN NONE BUT THE MOST EXTRAORDINARY CASE - DIFFICULT EVEN TO
IMAGINE - WILL A COURT EVER HAVE TO INVOKE SPECIALLY CONTRIVED
EVIDENTIARY STANDARDS TO DETERMINE WHETHER THERE HAS ACTUALLY BEEN A
NEW "MAKING" OF THE PATENTED ARTICLE. 

NEITHER LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO., 213 U.S.
325, NOR COTTON-TIE CO. V. SIMMONS, 106 U.S. 89, NOR ANY OTHER CASES OF
THIS COURT THAT HAVE TREATED THIS SUBJECT, DEPART FROM THIS COMMON
SENSE RULE OF WILSON V. SIMPSON.  IN FACT, AS MR. JUSTICE HOLMES
POINTED OUT IN HEYER V. DUPLICATOR MFG. CO., SUPRA, THE QUESTION IN
LEEDS & CATLIN DID NOT CONCERN "A RIGHT TO SUBSTITUTE WORN OUT PARTS"
AND "THE AUTHORITY OF WILSON V. SIMPSON AND THE CASES THAT HAVE
FOLLOWED IT WAS FULLY RECOGNIZED IN LEEDS & CATLIN AND MUST BE
RECOGNIZED HERE."  263 U.S., AT 102.  THE COTTON-TIE CASE LIKEWISE
CONTAINS NO SUPPORT FOR HOLDING THAT REPLACING THE FABRIC IN THIS TOP
AMOUNTS TO A "MAKING" OR EVEN A "REMAKING" OF THE WHOLE CONVERTIBLE
TOP.  THE PATENT INVOLVED THERE WAS A COTTON BALE TIE.  MARKED ON EACH,
FOR WHATEVER IT WAS WORTH, WAS "LICENSED TO USE ONCE ONLY."  AFTER
THESE TIES HAD BEEN USED ONCE AND BROKEN OFF THE COTTON BALES, THE OLD
TIE MATERIAL, ALONG WITH THE BUCKLES, WAS SOLD AS SCRAP, THEN RE
ROLLED, STRAIGHTENED, RIVETED TOGETHER, AND CUT INTO PROPER LENGTHS AND
ATTACHED TO AN OLD BUCKLE.  IT WAS THIS MAKING OF COMPLETELY NEW TIES
OUT OF THE DISCARDED SCRAP MATERIAL THAT WAS HELD TO AMOUNT TO A MAKING
OF THE PATENTED DEVICE AND THEREFORE AN INFRINGEMENT.  (FN8)  CF.
MORGAN ENVELOPE CO. V. ALBANY PAPER CO., 152 U.S. 425, 433-434.  MORGAN
ENVELOPE, IN ADDITION TO ITS DISTINCTION OF THE COTTON-TIE CASE, IS
NOTABLE FOR ITS EXPLICIT REAFFIRMANCE OF WILSON V. SIMPSON AND FOR ITS
STATEMENT BY A UNANIMOUS COURT THAT "THE TRUE DISTINCTION" IS WHETHER
THE COMPONENT PART OF THE COMBINATION IS "THE SUBJECT OF A SEPARATE
PATENT."   152 U.S., AT 435.  I AGREE WITH MY BROTHER WHITTAKER THAT
THIS REMAINS THE TRUE DISTINCTION TODAY.  (FN9) 

IN MY JUDGMENT IT WOULD CREATE MISCHIEVOUS RESULTS FOR A MAJORITY OF
THIS COURT TO CREATE OR APPROVE AMBIGUOUS EVIDENTIARY STANDARDS WHICH
COULD ONLY OBFUSCATE THE SIMPLE FACT OF WHETHER A PERSON IS "MAKING" A
PATENTED ARTICLE COMPOSED OF OLD UNPATENTABLE ELEMENTS.  FOR EXAMPLE,
THERE SHOULD BE NO ATTEMPT TO DECIDE WHETHER THERE IS A MAKING BY
COMPARING THE TIME THAT THE DIFFERENT ELEMENTS OF SUCH A PATENT
NORMALLY WILL EXIST IF LET ALONE.  THE OWNER IS UNDER NO OBLIGATION TO
LET THEM ALONE.  EVERY OWNER HAS THE RIGHT TO REPAIR AND PATCH EACH
PART OF THE PROPERTY HE BOUGHT AND PAID FOR IN ORDER TO MAKE IT LAST AS
LONG AS HE CAN.  EVERYONE KNOWS THAT THIS PATENTED TOP IS LIKELY TO
LAST AS LONG AS THE CAR ITSELF IF IT IS REPAIRED FROM TIME TO TIME.  AN
ACCIDENT MIGHT WHOLLY DESTROY THE ENTIRE TOP AND THEN IT MIGHT HAVE TO
BE REPLACED BY A NEW ONE, WHICH IF DONE WITHOUT THE PATENTEE'S CONSENT
WOULD OF COURSE BE AN INFRINGEMENT.  I CANNOT SUPPOSE, HOWEVER, THAT IF
THE BOWS UPON WHICH THE FABRIC RESTS AT THE TOP, OR THE METAL FRAMES
UPON WHICH IT STANDS, OR THE METAL WIPER WHICH HELPS TO LEVEL OFF THE
CURTAIN FOLDS, OR THE SNAPS THAT MAY HAVE TO BE USED, SHOULD HAPPEN TO
BECOME WORN OUT OR DESTROYED, THAT ANYONE COULD REASONABLY COME TO THE
CONCLUSION THAT A REPLACEMENT OF ONE OF THESE WORN-OUT PARTS WOULD BE A
COMPLETE REBUILDING OF THE OLD TOP OR THE "MAKING" OF A NEW ONE AND
THEREFORE AN INFRINGEMENT OF THE PATENT.  SUCH A CONTENTION WOULD SEEM
LITTLE SHORT OF FANTASTIC TO ME, AND THE SAME IS TRUE AS TO REPLACEMENT
OF THE FABRIC. 

THIS CASE IS OF GREAT IMPORTANCE IN OUR COMPETITIVE ECONOMY.  THE
RECORD SHOWS THAT PETITIONER IS BUT ONE OF MANY SMALL BUSINESS
ENTERPRISES FILLING A USEFUL PLACE IN MANUFACTURING THE COMPARATIVELY
SMALLER PARTS OF LARGER PRODUCTS LIKE AUTOMOBILES.  IT IS QUITE RIGHT
AND IN KEEPING WITH OUR PATENT SYSTEM THAT SMALL BUSINESS ENTERPRISES
SHOULD NO MORE THAN LARGE ENTERPRISES BE ALLOWED TO INFRINGE THE
PATENTS OF OTHERS.  BUT BUSINESSMEN ARE CERTAINLY ENTITLED TO KNOW WHEN
THEY ARE COMMITTING AN INFRINGEMENT.  IT IS FOR THAT REASON THAT THE
PATENT STATUTES REQUIRE APPLICANTS TO DEFINE WITH PARTICULARITY AND
CLAIM WITHOUT AMBIGUITY THE SUBJECT MATTER WHICH IS REGARDED TO BE AN
INVENTION.  35 U.S.C. SECS. 112, 154.  IN THE ABSENCE OF SUITS LIKE
THIS HOW COULD A BUSINESSMAN EVEN SUSPECT THAT HE MIGHT BE INFRINGING A
PATENT BY MARKETING AN UNPATENTED AND UNPATENTABLE PART OF A
COMBINATION LIKE THIS FABRIC TOP?  IT HAS LONG BEEN SETTLED WITH
RESPECT TO COMBINATION PATENTS THAT THE MONOPOLY RIGHTS EXTEND ONLY TO
THE PATENTED COMBINATION AS A WHOLE AND THAT THE PUBLIC IS FREE TO
APPROPRIATE ANY UNPATENTED PART OF IT, "HOWEVER IMPORTANT."  SPECIAL
EQUIPMENT CO. V. COE, 324 U.S. 370, 376, AND CASES CITED.  AND IN THE
1952 RECODIFICATION CONGRESS WAS VERY CAREFUL, IN WHAT IS NOW 35 U.S.C.
SEC. 271(C), TO SPECIFY THAT A VENDOR IS LIABLE AS A CONTRIBUTORY
INFRINGER ONLY IF HE HAS SOLD THE COMPONENT PART "KNOWING" THAT IT IS
TO BE USED IN AN INFRINGEMENT.  (FN10)  BUT TO WHAT AVAIL THESE
CONGRESSIONAL PRECAUTIONS IF THIS COURT, BY ITS OPINIONS, WOULD SUBJECT
SMALL BUSINESSMEN TO THE DEVASTATING UNCERTAINTIES OF NEBULOUS AND
PERMISSIVE STANDARDS OF INFRINGEMENT UNDER WHICH COURTS COULD IMPOSE
TREBLE DAMAGES UPON THEM FOR MAKING PARTS, DISTINCT, SEPARABLE, MINOR
PARTS, OR EVEN MAJOR PARTS OF A COMBINATION PATENT, UPON WHICH PARTS NO
PATENT HAS BEEN OR LEGALLY COULD HAVE BEEN ISSUED.  THE FACT THAT
SUBJECTION OF A SMALL BUSINESS ENTERPRISE TO TREBLE DAMAGES FOR SUCH
ACTIVITIES CAN HAVE DISASTROUS OR EVEN LETHAL CONSEQUENCES IS SUGGESTED
BY THE OBSERVATION OF THE DISTRICT COURT IN THIS VERY CASE THAT
PETITIONER HAD NOT MADE A SUPERSEDEAS BOND, WHETHER BECAUSE UNABLE OR
UNWILLING TO DO SO THE COURT SAID IT WAS NOT INFORMED.  THE EFFORTS OF
CONGRESS TO HELP SMALL BUSINESS ENTERPRISES KEEP THEIR HEADS ABOVE
WATER IN THE SMALL BUSINESS ACT OF 1953, (FN11) WHICH WAS ENACTED
ALMOST CONTEMPORANEOUSLY WITH THE RECODIFICATION OF THE PATENT LAWS,
COULD BE FRUSTRATED AT LEAST IN LARGE PART BY SUBJECTING THOSE ENGAGED
IN INDUSTRIAL ACTIVITIES TO THE CONSTANTLY OVERHANGING THREAT OF SUITS
FOR PATENT INFRINGEMENTS FOR THE SALE OF UNPATENTED ARTICLES.  AND I
THINK IT IS INDISPUTABLE THAT THE UNPREDICTABILITY IN ANY GIVEN CASE OF
THE RESOLUTION OF THE INTRICATE STANDARDS SUGGESTED BY MY BROTHERS
HARLAN AND BRENNAN WOULD DETER SMALL BUSINESSMEN FROM ENGAGING EVEN IN
ACTIVITIES THAT ALL MEMBERS OF THIS COURT WOULD ULTIMATELY AGREE DO NOT
CONSTITUTE CONTRIBUTORY INFRINGEMENT.  IN OUR OWN CASE THESE STANDARDS
LED TO OPPOSITE CONCLUSIONS WHEN APPLIED BY THREE DISTINGUISHED JUDGES
OF THE COURT OF APPEALS AND WHEN APPLIED BY MR. JUSTICE BRENNAN. 

THE ESTABLISHED POLICY IN THIS NATION FOR MORE THAN A CENTURY HAS
BEEN THAT WHEN AN ARTICLE DESCRIBED IN A PATENT IS SOLD AND "PASSES TO
THE HANDS OF THE PURCHASER, IT IS NO LONGER WITHIN THE LIMITS OF THE
MONOPOLY.  IT PASSES OUTSIDE OF IT, AND IS NO LONGER UNDER THE
PROTECTION OF THE ACT OF CONGRESS  ...  .  CONTRACTS IN RELATION TO IT
ARE REGULATED BY THE LAWS OF THE STATE, AND ARE SUBJECT TO STATE
JURISDICTION."  (FN12)  IN THIS DAY OF ADVANCED TECHNOLOGY AND
MECHANICAL APPLIANCES UPON WHICH SO MANY PEOPLE DEPEND, THIS WISE
POLICY AGAINST PERMITTING PATENTEES TO EXPAND THEIR CONTROL OF
COMMODITIES AFTER THEY REACH THE HANDS OF BONA FIDE PURCHASERS IS ALL
THE MORE IMPORTANT.  CONGRESS SURELY DID NOT INTEND FOR IT TO BE LEFT
WITHIN THE SOLE DISCRETION OF THE PATENT MONOPOLIST WHETHER AN
UNPATENTED COMPONENT PART WILL BE SEPARATELY AVAILABLE TO THE PURCHASER
FOR REPLACEMENT IN THE COMBINATION OR WHETHER, WHEN THAT PART WEARS
OUT, THE PURCHASER WILL BE FORCED TO REPLACE A LARGER SUBCOMBINATION OF
THE PATENTED PRODUCT OR PERHAPS EVEN THE ENTIRE AGGREGATION.  I HAVE AN
IDEA IT WOULD GREATLY SURPRISE AND SHOCK THE OWNERS OF CONVERTIBLE
AUTOMOBILES THROUGHOUT THIS COUNTRY TO LEARN THAT THERE IS A SERIOUS
CONTENTION MADE THAT IF THEY BUY A NEW FABRIC TO REPLACE THE WORN-OUT
FABRIC ON THEIR CONVERTIBLE TOP, LOOSE LEGAL FORMULAS LIKE THOSE
SUGGESTED BY MY BROTHERS HARLAN AND BRENNAN CAN BE APPLIED TO MAKE THEM
LIABLE FOR TREBLE DAMAGES, ATTORNEYS' FEES AND HEAVY COSTS.  NO SUCH
DOCTRINE SHOULD BE ALLOWED TO GAIN A FOOTHOLD THROUGH JUDICIAL
DECISIONS.  IF BONA FIDE PURCHASERS OF GOODS THROUGHOUT THE NATION ARE
TO BE SUBJECTED TO ANY SUCH PHENOMENAL EXPANSION OF THE RIGHT OF
PATENTEES, CONGRESS, NOT THIS COURT, SHOULD DO IT.  ONE ROYALTY TO ONE
PATENTEE FOR ONE SALE IS ENOUGH UNDER OUR PATENT LAW AS WRITTEN.  AND
THIS PROPOSITION CAN BE STATED WITH KNOWLEDGE THAT THERE IS NOT A
SINGLE SENTENCE, CLAUSE, PHRASE OR WORD IN THE ENTIRE LEGISLATIVE
HISTORY OF THE 1952 RECODIFICATION WHICH COULD HAVE LED CONGRESS TO
BELIEVE THAT IT WAS BEING ASKED BY MEANS OF THE PROVISIONS ENACTED TO
ENLARGE THE SCOPE OF A PATENTEE'S EXCLUSIVE RIGHT TO "MAKE, USE, AND
VEND" THE THING PATENTED. 

A FUNDAMENTAL ERROR UNDERLYING THE MISLEADING STANDARDS SUGGESTED BY
MY BROTHERS HARLAN AND BRENNAN IS THE NOTION THAT IN A CASE OF THIS
KIND A COURT IS OBLIGED TO SEARCH FOR THE ALLEGED "HEART" OR "CORE" OF
THE COMBINATION PATENT.  THIS MISCONCEPTION, WHICH HAS UNEQUIVOCALLY
BEEN REJECTED IN OUR PRIOR DECISIONS, (FN13) IS NOTHING BUT AN
UNWARRANTED TRANSFORMATION AND EXPANSION OF A COMBINATION PATENT, WHICH
WAS CORRECTLY DESCRIBED BY MR. JUSTICE JACKSON AS CONFERRING ONLY A "
...  RIGHT IN AN ABSTRUSE RELATIONSHIP BETWEEN THINGS IN WHICH
INDIVIDUALLY THERE IS NO RIGHT."  (FN14)  A PATENTED COMBINATION IS NO
MORE THAN THAT, A NOVEL RELATIONSHIP BROUGHT TO BEAR ON WHAT PRESUMABLY
ARE FAMILIAR ELEMENTS ALREADY IN THE PUBLIC DOMAIN.  SUCH FAMILIAR
ELEMENTS ARE NOT REMOVED FROM THE PUBLIC DOMAIN MERELY BECAUSE OF THEIR
USE, HOWEVER CRUCIAL, IN THE NOVEL COMBINATION.  OF COURSE, IF NOVELTY
SHOULD INHERE IN ONE OF THE PARTS AS WELL AS IN THE WHOLE, THEN THAT
NOVEL "HEART" OR "CORE" CAN BE SEPARATELY PATENTED AND SEPARATELY
PROTECTED.  BUT IN THE ABSENCE OF SUCH A SEPARATE PATENT, WHICH IN THIS
CASE WOULD PRESUMABLY BE SOME SORT OF PATENT ON THE UTILITY OF THE
SHAPE OF THE FABRIC, THE PUBLIC HAS THE RIGHT TO MAKE, USE AND VEND
EACH PART SUBJECT ONLY TO THE ESTABLISHED LIMITATION OF CONTRIBUTORY
INFRINGEMENT: THAT A PART MAY NOT BE KNOWINGLY SUPPLIED FOR USE BY AN
UNAUTHORIZED PERSON IN A NEW MAKING OF WHAT IS IN EFFECT THE WHOLE
COMBINATION.    FINALLY, PETITIONERS POINT OUT THAT THERE IS A SERIOUS
CONSTITUTIONAL QUESTION INVOLVED IN THE CLAIM THAT AUTOMOBILE OWNERS
CAN BE MULCTED FOR DAMAGES FOR REPLACING THE WORN-OUT FABRIC IN THEIR
CONVERTIBLE TOPS.  ARTICLE I, SEC. 8 OF THE CONSTITUTION PROVIDES: 

"THE CONGRESS SHALL HAVE POWER  ...  TO PROMOTE THE PROGRESS OF
SCIENCE AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO AUTHORS AND
INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS AND
DISCOVERIES." 

I HAVE NO DOUBT OF THE WIDE POWERS OF THE STATES TO GOVERN THE SALE
OF FABRICS, CLIPPED OR UNCLIPPED, CUT OR UNCUT, CLOTH, OILCLOTH,
ISINGLASS OR PLASTIC.  BUT IT IS DIFFICULT FOR ME TO THINK THAT SHAPING
UP A COMMON PIECE OF FABRIC WITH A COMMON PAIR OF SCISSORS OR OTHER
CUTTER CAN BE EXALTED TO THAT IMPORTANT CATEGORY OF "DISCOVERIES" THAT
THE CONSTITUTION AUTHORIZES CONGRESS TO PROMOTE BY SPECIAL FEDERAL
LEGISLATION.  NOR DO I BELIEVE THAT A PURPOSE SHOULD BE ATTRIBUTED TO
CONGRESS TO ALLOW THE COURTS, BY MEANS OF AN INCALCULABLE WEIGHING OF A
COMPLEX OF NEBULOUS STANDARDS, TO DIVINE WHETHER PERSONS SHOULD BE
GIVEN MONOPOLY RIGHTS ON ACCOUNT OF THE WAY THEY TRIM ORDINARY
FABRICS.  IF THERE IS ANYTHING SURE ABOUT THE 1952 RECODIFICATION IT IS
THAT THE PURPOSE WAS TO CLARIFY NOT TO CONFUSE THE LAW.  THE TEST
APPLIED IN THE OPINION OF THE COURT TODAY WILL NOT CONFUSE, IS IN
ACCORD WITH PRIOR DECISIONS ENDORSED BY CONGRESS AND, MOST IMPORTANT,
IS IN KEEPING WITH THE GENERAL PURPOSES OF THIS NATION TO RETAIN AN
ECONOMY IN WHICH COMPETITION IS A GENERAL LAW OF TRADE EXCEPT WHERE
ACTUAL "DISCOVERIES" HAVE BEEN MADE. 

FN1  THIS ELEMENTARY PRINCIPLE WAS BROUGHT TO THE ATTENTION OF
CONGRESS BY MR. GILES S. RICH, THE CHIEF DRAFTSMAN OF THE PROVISIONS ON
CONTRIBUTORY INFRINGEMENT IN THE 1952 RECONDIFICATION: 

"MR. RICH  ...  .  I SHOULD STATE AT THE OUTSET THAT WHEREVER THERE
IS CONTRIBUTORY INFRINGEMENT THERE IS SOMEWHERE SOMETHING CALLED DIRECT
INFRINGEMENT, AND TO THAT DIRECT INFRINGEMENT SOMEONE HAS CONTRIBUTED. 
IT IS A VERY DIFFERENT THING FROM A CONCEPT LIKE CONTRIBUTORY
NEGLIGENCE."  HEARINGS BEFORE SUBCOMMITTEE OF HOUSE JUDICIARY COMMITTEE
ON H.R. 3760, 82D CONG., 1ST SESS. 151 (1951). 

FN2  IF ANYONE IS INCLINED DESPITE OTHER EVIDENCE TO THE CONTRARY TO
ATTRIBUTE TO CONGRESS A PURPOSE TO ACCOMPLISH ANY FAR-REACHING CHANGES
IN THE SUBSTANTIVE LAW BY THIS ENACTMENT, HE SHOULD TAKE NOTE THAT JUST
BEFORE THE BILL WAS PASSED IN THE SENATE, SENATOR SALTONSTALL ASKED ON
THE FLOOR, "DOES THE BILL CHANGE THE LAW IN ANY WAY OR ONLY CODIFY THE
PRESENT PATENT LAWS?"  SENATOR MCCARRAN, CHAIRMAN OF THE JUDICIARY
COMITTEE WHICH HAD BEEN CHARGE OF THE BILL FOR THE SENATE, REPLIED, "IT
CODIFIES THE PRESENT PATENT LAWS."  98 CONG.  REC. 9323 (JULY 4,
1952). 

FN3  TO THIS END, THE 1952 ACT PROVIDES (35 U.S.C. SEC. 271): 

"(B)  WHOEVER ACTIVELY INDUCES INFRINGEMENT OF A PATENT SHALL BE
LIABLE AS AN INFRINGER. 

"(C)  WHOEVER SELLS A COMPONENT OF A PATENTED MACHINE, MANUFACTURE,
COMBINATION OR COMPOSITION, OR A MATERIAL OR APPARATUS FOR USE IN
PRACTICING A PATENTED PROCESS, CONSTITUTING A MATERIAL PART OF THE
INVENTION, KNOWING THE SAME TO BE ESPECIALLY MADE OR ESPECIALLY ADAPTED
FOR USE IN AN INFRINGEMENT OF SUCH PATENT, AND NOT A STAPLE ARTICLE OR
COMMODITY OF COMMERCE SUITABLE FOR SUBSTANTIAL NONINFRINGING USE, SHALL
BE LIABLE AS A CONTRIBUTORY INFRINGER." 

THE HEARINGS AND COMMITTEE REPORTS SHOW THAT THE ONLY PURPOSE OF
THESE PROVISIONS WAS TO PREVENT THIS COURT'S DECISION IN MERCOID CORP.
V. MID-CONTINENT INV. CO., 320 U.S. 661, FROM BEING TREATED AS HAVING
OBLITERATED THE LAW OF CONTRIBUTORY INFRINGEMENT: 

"MR. ROGERS.  THEN I TAKE IT FROM YOUR STATEMENTS, THAT THERE IS SOME
DIFFERENCE OF OPINION AMONG THOSE ENGAGED IN THE PRACTICE OF PATENT LAW
AS TO WHETHER OR NOT THE SUPREME COURT IN ITS DECISIONS HAS DONE AWAY
WITH CONTRIBUTORY INFRINGEMENT. 

 *         *         *         *         * 

"MR. RICH.  THERE IS A GREAT DIFFERENCE OF OPINION ON THE PART OF THE
BAR AND ALSO APPARENTLY ON THE PART OF THE JUDICIARY  ...  . 

"MR. ROGERS.  THEN IN EFFECT THIS RECODIFICATION, PARTICULARLY AS TO
THE COURT, AT LEAST THAT IT WAS THE SENSE OF CONGRESS THAT WE REMOVE
THIS QUESTION OF CONFUSION AS TO WHETHER CONTRIBUTORY INFRINGEMENT
EXISTED AT ALL, AND STATE IN POSITIVE LAW THAT THERE IS SUCH A THING AS
CONTRIBUTORY INFRINGEMENT, OR AT LEAST IT BE THE SENSE OF CONGRESS BY
THE ENACTMENT OF THIS LAW THAT IF YOU HAVE IN THE MERCOID CASE DONE
AWAY WITH CONTRIBUTORY INFRINGEMENT, THEN WE REINSTATE IT AS A MATTER
OF SUBSTANTIVE LAW OF THE UNITED STATES AND THAT YOU SHALL HEREAFTER IN
A PROPER CASE RECOGNIZE OR HOLD LIABLE ONE WHO HAS CONTRIBUTED TO THE
INFRINGEMENT OF A PATENT. 

"THAT IS THE SUBSTANTIVE LAW THAT WE WOULD WRITE IF WE ADOPTED THIS

"MR. RICH.  THAT IS A VERY EXCELLENT STATEMENT  ...  ."  HEARINGS,
SUPRA, NOTE 1, AT 159. 

"  ...  CONSIDERABLE DOUBT AND CONFUSION AS TO THE SCOPE OF
CONTRIBUTORY INFRINGEMENT HAS RESULTED FROM A NUMBER OF DECISIONS OF
THE COURTS IN RECENT YEARS.  THE PURPOSE OF THIS SECTION IS TO CODIFY
IN STATUTORY FORM PRINCIPLES OF CONTRIBUTORY INFRINGEMENT AND AT THE
SAME TIME ELIMINATE THIS DOUBT AND CONFUSION."  H.R. REP. NO. 1923 ON
H.R. 7794, 82D CONG., 2D SESS. 9. 

FN4  TO PROTECT A PATENTEE'S RIGHT TO SUE FOR CONTRIBUTORY
INFRINGEMENT, THE 1952 ACT PROVIDES: 

"(D)  NO PATENT OWNER OTHERWISE ENTITLED TO RELIEF FOR INFRINGEMENT
OR CONTRIBUTORY INFRINGEMENT OF A PATENT SHALL BE DENIED RELIEF OR
DEEMED GUILTY OF MISUSE OR ILLEGAL EXTENSION OF THE PATENT RIGHT BY
REASON OF HIS HAVING DONE ONE OR MORE OF THE FOLLOWING: (1) DERIVED
REVENUE FROM ACTS WHICH IF PERFORMED BY ANOTHER WITHOUT HIS CONSENT
WOULD CONSTITUTE CONTRIBUTORY INFRINGEMENT OF THE PATENT; (2) LICENSED
OR AUTHORIZED ANOTHER TO PERFORM ACTS WHICH IF PERFORMED WITHOUT HIS
CONSENT WOULD CONSTITUTE CONTRIBUTORY INFRINGEMENT OF THE PATENT; (3)
SOUGHT TO ENFORCE HIS PATENT RIGHTS AGAINST INFRINGEMENT OR
CONTRIBUTORY INFRINGEMENT."  35 U.S.C. SEC. 271(D). 

THIS PROVISION WAS DESIGNED SPECIFICALLY TO PREVENT THE MERCOID CASE
FROM BEING INTERPRETED TO MEAN THAT ANY EFFORT TO ENFORCE A PATENT
AGAINST A CONTRIBUTORY INFRINGER IN ITSELF CONSTITUTES A FORFEITURE OF
PATENT RIGHTS: 

"MR. RICH  ...  . 

"OTHER DECISIONS FOLLOWING MERCOID HAVE MADE IT QUITE CLEAR THAT AT
LEAST SOME COURTS ARE GOING TO SAY THAT ANY EFFORT WHATEVER TO ENFORCE
A PATENT AGAINST A CONTRIBUTORY INFRINGER IS IN ITSELF MISUSE.  THE
CASES ARE CITED IN THE OLD HEARINGS.  THEREFORE, WE HAVE ALWAYS FELT -
WE WHO STUDY THIS SUBJECT PARTICULARLY - THAT TO PUT ANY MEASURE OF
CONTRIBUTORY INFRINGEMENT INTO LAW YOU MUST, TO THAT EXTENT AND TO THAT
EXTENT ONLY, SPECIFICALLY MAKE EXCEPTIONS TO THE MISUSE DOCTRINE, AND
THAT IS THE PURPOSE OF PARAGRAPH (D)."  HEARINGS, SUPRA, NOTE 1, AT 161
162. 

"  ...  THE LAST PARAGRAPH OF THIS SECTION PROVIDES THAT ONE WHO
MERELY DOES WHAT HE IS AUTHORIZED TO DO BY STATUTE IS NOT GUILTY OF
MISUSE OF THE PATENT."  H.R. REP. NO. 1923, SUPRA, NOTE 3, AT 9. 

FN5  THE 1952 ACT CARRIED OUT THIS PURPOSE BY PROVIDING: 

"(A)  EXCEPT AS OTHERWISE PROVIDED IN THIS TITLE, WHOEVER WITHOUT
AUTHORITY MAKES, USES OR SELLS ANY PATENTED INVENTION, WITHIN THE
UNITED STATES DURING THE TERM OF THE PATENT THEREFOR, INFRINGES THE
PATENT."  35 U.S.C. SEC. 271(A). 

ALTHOUGH THERE WAS NO STATUTORY PROVISION DEFINING INFRINGEMENT PRIOR
TO 1952, THE DEFINITION ADOPTED IS CONSONANT WITH THE LONG-STANDING
STATUTORY PRESCRIPTION OF THE TERMS OF THE PATENT GRANT, WHICH WAS
CONTAINED IN SEC. 4884 OF THE REVISED STATUTES AS FOLLOWS: 

"EVERY PATENT SHALL CONTAIN A SHORT TITLE OR DESCRIPTION OF THE
INVENTION OR DISCOVERY, CORRECTLY INDICATING ITS NATURE AND DESIGN, AND
A GRANT TO THE PATENTEE  ...  OF THE EXCLUSIVE RIGHT TO MAKE, USE, AND
VEND THE INVENTION OR DISCOVERY THROUGHOUT THE UNITED STATES  ...  ." 

THIS PROVISION IS NOW CONTAINED WITHOUT SUBSTANTIAL CHANGE IN 35
U.S.C. SEC. 154. 

FN6  THIS POINT WAS MADE BY MR. RICH IN THE COURSE OF THE HEARINGS AS
FOLLOWS:  "IF THE PART HE IS SUPPLYING IS IN SUBSTANCE THE VERY THING
WHICH WAS INVENTED, IT SEEMS TO ME PERSONALLY, THAT HE IS AN INFRINGER,
AND HE SHOULD NOT BE LET OFF ON SOME LITTLE TECHNICALITY THAT THERE IS
SOMETHING MINOR IN THE WHOLE APPARATUS THAT HE IS NOT SUPPLYING." 
HEARINGS, SUPRA, NOTE 1, AT 153.  OF COURSE, AS MR. RICH WELL KNEW,
"THE VERY THING" WHICH IS INVENTED IN ANY COMBINATION PATENT IS THE
COMBINATION ITSELF AND NOT ANY UNPATENTED COMPONENT PART OF IT - IN
THIS CASE, THE WHOLE CONVERTIBLE TOP, NOT THE FABRIC USED IN IT. 

FN7  CF. MERCOID CORP. V. MID-CONTINENT INV. CO., 320 U.S. 661, 679
680 (JACKSON, J., DISSENTING ON OTHER GROUNDS). 

FN8  SEE TRANSCRIPT OF RECORD, PP. 29-33, COTTON-TIE CO. V. SIMMONS,
106 U.S. 89. 

FN9  I AM PERFECTLY CONTENT WITH THE DISSENTING OPINION'S
DENOMINATION OF OUR INTERPRETATION AS A "RECONSTRUCTION" OF THE CASES
IN THE SENSE IN WHICH I UNDERSTAND THAT TERM TO BE APPLIED IN THESE
CASES.  I REGRET TO SAY, HOWEVER, THAT WE CANNOT CLAIM THIS
INTERPRETATION TO BE A "DISCOVERY" IN THE PATENT SENSE.  IT WAS
ANTICIPATED BY JUDGE LEARNED HAND'S CITATION OF WILSON V. SIMPSON FOR
THE PROPOSITION THAT "THE PATENT MONOPOLIST CANNOT PREVENT THOSE TO
WHOM HE SELLS FROM  ... RECONDITIONING ARTICLES WORN BY USE, UNLESS
THEY IN FACT MAKE A NEW ARTICLE."  UNITED STATES V. ALUMINUM CO. OF
AMERICA, 148 F.2D 416, 425. 

FN10  IF THE WORDING OF THE STATUTORY PROVISION BE THOUGHT TO LEAVE
ANY DOUBT ON THIS POINT, THE INTENT OF CONGRESS IS MADE MANIFEST BY THE
FACT THAT THE POSITION OF THE WORD "KNOWING" (ORIGINALLY "KNOWINGLY")
IN SUBSECTION (C) WAS CHANGED AFTER THE HEARINGS FOR THIS VERY
PURPOSE.  SEE HEARINGS, SUPRA, NOTE 1, AT 13, 142, 164, 176. 

FN11  67 STAT. 232, AS AMENDED, 15 U.S.C. SECS. 631-651. 

FN12  BLOOMER V. MCQUEWAN, 14 HOW.  539, 549-550; SEE UNITED STATES
V. UNIVIS LENS CO., 316 U.S. 241, 251, AND CASES COLLECTED IN GENERAL
TALKING PICTURES CORP. V. WESTERN ELECTRIC CO., 305 U.S. 124, 128, NOTE
1 (DISSENTING OPINION).  THIS CENTURY-LONG MANDATE CANNOT BE SET ASIDE
BECAUSE OF WHAT MY BROTHER HARLAN NOW CONCEIVES TO BE A MORE
ENLIGHTENED POLICY IN THIS FIELD OF LAW. 

FN13  SEE MERCOID CORP. V. MID-CONTINENT INV. CO., 320 U.S. 661, 667
668, AND CASES CITED. 

FN14  ID., AT 679 (DISSENTING OPINION). 

MR. JUSTICE BRENNAN, CONCURRING IN THE RESULT. 

I AGREE THAT THE REPLACEMENT OF THE TOP WAS "REPAIR" AND NOT
"RECONSTRUCTION," BUT I CANNOT AGREE THAT THE TEST SUGGESTED BY MY
BROTHER WHITTAKER FOR DETERMINATION OF THAT QUESTION IS THE CORRECT
ONE.  MY BROTHER HARLAN'S DISSENT COGENTLY STATES THE REASONS WHY I
ALSO THINK THAT IS TOO NARROW A STANDARD OF WHAT CONSTITUTES
IMPERMISSIBLE "RECONSTRUCTION."  FOR THERE ARE CIRCUMSTANCES IN WHICH
THE REPLACEMENT OF A SINGLE UNPATENTED COMPONENT OF A PATENTED
COMBINATION SHORT OF A SECOND CREATION OF THE PATENTED ENTITY MAY
CONSTITUTE "RECONSTRUCTION."  LEEDS & CATLIN CO. V. VICTOR TALKING
MACHINE CO., 213 U.S. 325; DAVIS ELECTRICAL WORKS V. EDISON ELECTRIC
LIGHT CO., 60 F. 276; CF. WILLIAMS V. HUGHES TOOL CO., 186 F.2D 278. 
THESE HOLDINGS APPLIED THE LONG-ESTABLISHED STANDARD FOR DETERMINATION
OF "REPAIR" OR "RECONSTRUCTION."  UNDER THAT STANDARD THERE IS NO
SINGLE TEST TO WHICH ALL MUST YIELD; RATHER THE DETERMINATION IS TO BE
BASED UPON THE CONSIDERATION OF A NUMBER OF FACTORS.  WILSON V.
SIMPSON, 9 HOW.  109; HEYER V. DUPLICATOR MFG. CO., 263 U.S. 100. 
(FN1) APPROPRIATELY TO BE CONSIDERED ARE THE LIFE OF THE PART REPLACED
IN RELATION TO THE USEFUL LIFE OF THE WHOLE COMBINATION, (FN2) THE
IMPORTANCE OF THE REPLACED ELEMENT TO THE INVENTIVE CONCEPT, (FN3) THE
COST OF THE COMPONENT RELATIVE TO THE COST OF THE COMBINATION, (FN4)
THE COMMON SENSE UNDERSTANDING AND INTENTION OF THE PATENT OWNER AND
THE BUYER OF THE COMBINATION AS TO ITS PERISHABLE COMPONENTS, (FN5)
WHETHER THE PURCHASED COMPONENT REPLACES A WORN-OUT PART OR IS BOUGHT
FOR SOME OTHER PURPOSE, (FN6) AND OTHER PERTINENT FACTORS.  (FN7) 

IT IS TRUE THAT SOME DECISIONS OF THIS COURT IN PATENT MISUSE CASES
(FN8) RAISED DOUBT AS TO THE CONTINUING VITALITY OF THIS STANDARD IN
ACTIONS SUCH AS THIS ONE FOR RELIEF FROM CONTRIBUTORY INFRINGEMENT. 
BUT THE CONGRESS SWEPT AWAY THAT DOUBT WHEN IT GAVE THE STANDARD
STATUTORY SANCTION IN 1952.  (FN9)  MY BROTHER WHITTAKER'S TEST THAT
"MERE REPLACEMENT OF INDIVIDUAL UNPATENTED PARTS, ONE AT A TIME,
WHETHER OF THE SAME PART REPEATEDLY OR DIFFERENT PARTS SUCCESSIVELY, IS
NO MORE THAN THE LAWFUL RIGHT OF THE OWNER TO REPAIR HIS PROPERTY"
PLAINLY WOULD NOT HEED THE CONGRESSIONAL MANDATE.  INSTEAD CONGRESS
MEANT, AS I READ THE LEGISLATIVE HISTORY OF THE 1952 ACT, THAT THE
COURTS SHOULD RECOGNIZE, IN ACTIONS FOR CONTRIBUTORY INFRINGEMENT, THE
DISTINCTION BETWEEN COMPONENTS STATED IN WILSON V. SIMPSON, SUPRA, THE
LEADING CASE IN THIS FIELD: 

"THE OTHER CONSTITUENT PARTS OF THIS INVENTION, THOUGH LIABLE TO BE
WORN OUT, ARE NOT MADE WITH REFERENCE TO ANY USE OF THEM WHICH WILL
REQUIRE THEM TO BE REPLACED.  THESE, WITHOUT HAVING A DEFINITE
DURATION, ARE CONTEMPLATED BY THE INVENTOR TO LAST SO LONG AS THE
MATERIALS OF WHICH THEY ARE FORMED CAN HOLD TOGETHER IN USE IN SUCH A
COMBINATION.  NO REPLACEMENT OF THEM AT INTERMEDIATE INTERVALS IS MEANT
OR IS NECESSARY.  THEY MAY BE REPAIRED AS THE USE MAY REQUIRE.  WITH
SUCH INTENTIONS, THEY ARE PUT INTO THE STRUCTURE.  SO IT IS UNDERSTOOD
BY A PURCHASER, AND BEYOND THE DURATION OF THEM A PURCHASER OF THE
MACHINE HAS NOT A LONGER USE."  9 HOW.  125-126.    GILES S. RICH, THE
CHIEF DRAFTSMAN OF SEC. 271(C), WHEN TOLD THAT MANUFACTURERS OF
REPLACEMENT PARTS FOR AUTOMOBILES, TRACTORS, AND OTHER MACHINES HAD
PROTESTED AGAINST THE SECTION IN FEAR OF BEING HELD CONTRIBUTORY
INFRINGERS UNDER IT, REPLIED:  "WHETHER OR NOT THEY WOULD BE LIABLE
WOULD DEPEND ON THE FACTS IN EACH PARTICULAR CASE.  AND I THINK THAT
THE BEST WAY TO CLEAR THAT UP IS TO TAKE UP SECTION (C) AND DEAL WITH
THE MATTER SPECIFICALLY AND POINT OUT TO YOU THE LIMITATIONS THAT ARE
THERE, WHICH HAVE TO BE MET BEFORE ANYBODY IS HELD LIABLE, AND THEN
LEAVE IT TO YOU TO DECIDE WHETHER A PARTS SUPPLIER SHOULD BE HELD
LIABLE OR NOT, DEPENDING ON THE KIND OF A PART HE MAY BE SUPPLYING.  IF
THE PART HE IS SUPPLYING IS IN SUBSTANCE THE VERY THING WHICH WAS
INVENTED, IT SEEMS TO ME PERSONALLY, THAT HE IS AN INFRINGER, AND HE
SHOULD NOT BE LET OFF ON SOME LITTLE TECHNICALITY THAT THERE IS
SOMETHING MINOR IN THE WHOLE APPARATUS THAT HE IS NOT SUPPLYING." 
HEARINGS, H.R. 3760, 82D CONG., 1ST SESS., SUPRA, P. 153.  HE ADDED:
"IN EACH CASE YOU WOULD HAVE TO LOOK AT THE DETAILS AND SEE WHAT WAS
INVENTED, AND IN EFFECT WHETHER THE ALLEGED INFRINGER IS APPROPRIATING
SOMEBODY ELSE'S INVENTION, OR WHETHER HE IS NOT."  HEARINGS, SUPRA, P.
157. 

HOWEVER, I DISAGREE WITH MY BROTHER HARLAN THAT WE SHOULD REFRAIN
FROM MAKING AN INDEPENDENT APPLICATION OF THE PROPER STANDARD IN THIS
CASE BECAUSE OF THE CONCLUSION OF BOTH LOWER COURTS THAT THE
REPLACEMENT OF THE TOP CONSTITUTED "RECONSTRUCTION."  I WOULD SUPPOSE
THAT "REPAIR" OR "RECONSTRUCTION" IS SO FAR A QUESTION OF LAW AS TO
RELIEVE APPELLATE REVIEW FROM THE RESTRAINTS OF FEDERAL RULE OF CIVIL
PROCEDURE 52(A).  SEE UNITED STATES V. E.I. DU PONT DE NEMOURS & CO.,
353 U.S. 586, 598.  IN NO PREVIOUS CASE PRESENTING THE QUESTION OF
"REPAIR" OR "RECONSTRUCTION" HAS THIS COURT BELIEVED ITSELF RESTRAINED
FROM MAKING AN INDEPENDENT DETERMINATION.  WILSON V. SIMPSON, SUPRA;
COTTON-TIE CO. V. SIMMONS, SUPRA; MORGAN ENVELOPE CO. V. ALBANY
PERFORATED WRAPPING PAPER CO., 152 U.S. 425; LEEDS & CATLIN CO. V.
VICTOR TALKING MACHINE CO., SUPRA; HEYER V. DUPLICATOR MFG. CO., SUPRA.
AND HERE THE ERROR OF THE TWO COURTS BELOW IS MANIFEST.  THE LIFE OF
THE TOP WAS APPROXIMATELY THREE YEARS IN CONTRAST TO THE SEVERAL TIMES
LONGER LIFE OF THE OTHER COMPONENTS OF THE COMBINATION.  THE TOP WAS
REPLACEABLE AT A COST OF FROM $30 TO $70 DEPENDING ON THE FABRIC; IN
CONTRAST THE COST OF OTHER ELEMENTS OF THE COMBINATION WAS
APPROXIMATELY $400.  THESE CONSIDERATIONS OF THEMSELVES SUGGEST THAT
THE REPLACEMENT WAS MERE "REPAIR" OF THE WORN COMPONENT AND NOT
"RECONSTRUCTION" OF THE PATENTED COMBINATION.  SURELY THEY SUPPORT THE
INFERENCE THAT ALL CONCERNED KNEW THAT THE FABRIC OF THE TOP WOULD
BECOME WEATHER-BEATEN OR UNABLE TO PERFORM ITS PROTECTIVE FUNCTION LONG
BEFORE THOSE OTHER COMPONENTS, NOT SO EXPOSED AND MORE DURABLE AS WELL,
WORE OUT.  ITS PERISHABLE NATURE COUPLED WITH ITS FRACTIONAL COST AS
COMPARED TO THE WHOLE COMBINATION AND ITS READY REPLACEABILITY ALL
POINT TO THE CONCLUSION REACHED HERE.  AND PARTICULARLY PERSUASIVE, I
THINK, THAT THIS REPLACEMENT WAS MERE "REPAIR," IS THE ROLE OF THE TOP
RELATIVE TO OTHER COMPONENTS IN THE INVENTIVE CONCEPT.  PATENTABLE
NOVELTY INHERED NOT MERELY IN THE SHAPE OF THE FABRIC; THE RECORD SHOWS
THAT A WIPING ARM WHICH PRESSED THE MATERIAL IN SUCH WAY AS TO CREATE A
SEAL AT THE BELT LINE OF THE VEHICLE PLAYED A SIGNIFICANTLY IMPORTANT
ROLE IN THE INVENTIVE CONCEPT.  THE CLAIM FOR THE COMBINATION IS THAT
IT MADE POSSIBLE AN AUTOMATIC TOP, MADE THE TOP WEATHERTIGHT AND
PREVENTED UNAUTHORIZED ACCESS TO THE VEHICLE.  THE WIPER ARM, RATHER
THAN THE SHAPE OF THE MATERIAL ALONE, ACCOMPLISHED THE INVENTIVE
PURPOSES OF PROVIDING A TOP WHICH WAS WEATHERTIGHT AND PREVENTED
UNAUTHORIZED ACCESS.  (FN10)  THE SHAPE OF THE FABRIC WAS THUS NOT THE
ESSENCE OF THE DEVICE AND IN ALL THE CIRCUMSTANCES IT SEEMS REASONABLE
AND SENSIBLE TO TREAT THE REPLACEMENT OF THE TOP AS "REPAIR." 

I, THEREFORE, THINK THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE
REVERSED, EXCEPT, HOWEVER, AS TO THE RELIEF GRANTED RESPONDENT IN
RESPECT OF THE REPLACEMENTS MADE ON FORD CARS BEFORE JULY 21, 1955. 

FN1  THE STANDARD HAS BEEN VARIOUSLY EXPRESSED.  SEE, E.G., "WHETHER
THE BOUNDS OF LEGITIMATE REPAIR HAVE BEEN EXCEEDED MUST BE DETERMINED
UPON THE FACTS OF EACH CASE AS IT IS PRESENTED."  MORRIN V. ROBERT
WHITE ENGINEERING WORKS, 143 F. 519, 520.  "IN THE ABSENCE OF A CRUCIAL
TEST TO WHICH ALL MUST YIELD, THE ONLY AID COMES FROM VARIOUS MINOR OR
INCIDENTAL CONSIDERATIONS, AND THEIR COMBINED EFFECT."  DAVIS
ELECTRICAL WORKS V. EDISON ELECTRIC LIGHT CO., 60 F. 276, 280.  "THE
RIGHT, IN OUR VIEW, MUST DEPEND IN EVERY CASE UPON THE SPECIAL FACTS OF
THE CASE AS THEY SHOW THE RELATION OF THE TWO CLASSES OF PARTS - THOSE
SUPPLIED AND THOSE REMAINING IN THE ORIGINAL CONSTRUCTION - TO THE
PATENTED UNIT.  ... THERE MIGHT BE A STRUCTURE WHERE THE PUTTING IN OF
A CERTAIN NUMBER OF NEW PARTS WOULD BE 'RECONSTRUCTION,' WHEREAS THE
PUTTING IN OF A SMALLER NUMBER WOULD BE 'REPAIR,' OR EVEN WHERE THE
PUTTING IN OF ONE NEW PART WOULD BE RECONSTRUCTION BUT THE PUTTING IN
OF TWO OR THREE WOULD NOT BE, DEPENDING IN EACH CASE UPON WHETHER,
AFTER THE REPLACEMENT, THE STRUCTURE AS A WHOLE COULD REASONABLY BE
SAID TO BE A NEW STRUCTURE OR THE OLD ONE."  AUTOMOTIVE PARTS CO. V.
WISCONSIN AXLE CO., 81 F.2D 125, 127.  "EACH CASE, AS IT ARISES, MUST
BE DECIDED IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES PRESENTED,
AND WITH AN INTELLIGENT COMPREHENSION OF THE SCOPE, NATURE, AND PURPOSE
OF THE PATENTED INVENTION, AND THE FAIR AND REASONABLE INTENTION OF THE
PARTIES."  GOODYEAR SHOE MACHINERY CO. V. JACKSON, 112 F. 146, 150. 
"THE DIVIDING LINE BETWEEN REPAIRS AND A MAKING OVER CANNOT BE VERBALLY
LOCATED.  WHAT HAS BEEN DONE CAN WITH MORE OR LESS CONFIDENCE BE
PRONOUNCED TO BE ONE OR THE OTHER, BUT NEITHER THE ONE NOR THE OTHER
CAN BE DEFINED."  HESS-BRIGHT MFG. CO. V. BEARINGS CO., 271 F. 350,
352. 

FN2  WILSON V. SIMPSON, SUPRA; HEYER V. DUPLICATOR MANUFACTURING CO.,
SUPRA; WILLIAMS V. BARNES, 234 F. 339; MICROMATIC HONE CORP. V. MID
WEST ABRASIVE CO., 177 F.2D 934; PAYNE V. DICKINSON, 109 F.2D 52; EL
DORADO FOUNDRY, MACHINE & SUPPLY CO. V. FLUID PACKED PUMP CO., 81 F.2D
782; SLOCOMB & CO., INC., V. LAYMAN MACHINE CO., 227 F. 94, AFFIRMED,
230 F. 1021.  IN THE SLOCOMB CASE THE COURT SAID, 227 F., AT P. 98: "IF
...  PATENTED MECHANISM BE COMPOSED OF VARIOUS PARTS AND ELEMENTS THE
MOST EXPENSIVE OF WHICH HAVE AN AVERAGE LIFE OF TWENTY YEARS, AND OTHER
PARTS OR FEATURES OF COMPARATIVELY TRIFLING COST ARE SUBJECTED IN THE
OPERATION OF THE MECHANISM TO SUCH WEAR AS TO REQUIRE RENEWAL OR
REPLACEMENT WITHIN A PERIOD OF A FEW MONTHS, OR OF A YEAR OR TWO, IT
WOULD SEEM REASONABLE AND SENSIBLE TO TREAT SUCH RENEWAL OR REPLACEMENT
AS INVOLVING REPAIRS IN CONTRADISTINCTION TO RECONSTRUCTION." 

FN3  LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO., SUPRA; DAVIS
ELECTRICAL WORKS V. EDISON ELECTRIC LIGHT CO., SUPRA, "IN CERTAIN
STAGES OF USE THE ESSENCE OF A DEVICE, THOUGH IN APPEARANCE ONLY A
SMALL PORTION OF IT, MAY BE LOST, AND ITS RENEWAL AMOUNT TO
RECONSTRUCTION."  PP. 279-280.  MORRIN V. ROBERT WHITE ENGINEERING
WORKS, SUPRA, P. 519. 

FN4  HEYER V. DUPLICATOR MFG. CO., SUPRA; AMERICAN SAFETY RAZOR CORP.
V. FRINGS BROS.  CO., 62 F.2D 416; EL DORADO FOUNDRY, MACHINE & SUPPLY
CO. V. FLUID PACKED PUMP CO., SUPRA; SLOCOMB & CO., INC., V. LAYMAN
MACHINE CO., SUPRA. 

FN5  WESTINGHOUSE ELEC.  & MFG. CO. V. HESSER, 131 F.2D 406, 410:
"WHERE THE PERISHABLE NATURE OF THE PARTS ARE RECOGNIZED BY THE
PATENTEE, AND WHERE THE PARTS ARE ADAPTED TO BE REMOVED FROM THE
PATENTED COMBINATION AND, FROM TIME TO TIME, REPLACED, REPLACEMENT OF
SUCH PARTS IS REPAIR AND NOT RECONSTRUCTION." 

AND AS REGARDS INDICIA OF AN UNDERSTANDING SEE EL DORADO FOUNDRY,
MACHINE & SUPPLY CO. V. FLUID PACKED PUMP CO., SUPRA; SLOCOMB & CO.,
INC., V. LAYMAN MACHINE CO., SUPRA. 

FN6  SEE LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO., SUPRA;
CONNECTICUT TELEPHONE & ELEC.  CO. V. AUTOMOTIVE EQUIPMENT CO., 14 F.2D
957, AFFIRMED, 19 F.2D 990. 

FN7  IS THE REPLACED PART THE DOMINANT STRUCTURAL ELEMENT OF THE
COMBINATION?  SOUTHWESTERN TOOL CO. V. HUGHES TOOL CO., 98 F.2D 42;
AUTOMOTIVE PARTS CO. V. WISCONSIN AXLE CO., SUPRA, P. 127:  "IF THE NEW
PARTS SO DOMINATE THE STRUCTURAL SUBSTANCE OF THE WHOLE AS TO JUSTIFY
THE CONCLUSION THAT IT HAS BEEN MADE ANEW, THERE IS A REBUILDING OR
RECONSTRUCTION; AND CONVERSELY, WHERE THE ORIGINAL PARTS, AFTER
REPLACEMENT, ARE SO LARGE A PART OF THE WHOLE STRUCTURAL SUBSTANCE AS
TO PREPONDERATE OVER THE NEW, THERE HAS NOT BEEN A RECONSTRUCTION BUT
ONLY REPAIR." 

HAS THERE BEEN PHYSICAL DESTRUCTION OF THE COMBINATION FROM USE OF
THE COMPONENT?  COTTON-TIE CO. V. SIMMONS, 106 U.S. 89. 

FN8  SEE, E.G., MERCOID CORP. V. MID-CONTINENT INVESTMENT CO., 320
U.S. 661, 669:  "THE RESULT OF THIS DECISION, TOGETHER WITH THOSE WHICH
HAVE PRECEDED IT, IS TO LIMIT SUBSTANTIALLY THE DOCTRINE OF
CONTRIBUTORY INFRINGEMENT.  WHAT RESIDUUM MAY BE LEFT WE NEED NOT STOP
TO CONSIDER." 

FN9  35 U.S.C. SEC. 271.  THE PURPOSE OF (C) OF THIS SECTION APPEARS
IN THE HOUSE JUDICIARY COMMITTEE REPORT, H.R. REP. NO. 1923 ON H.R.
7794, 82D CONG., 2D SESS., P. 9.  "THE DOCTRINE OF CONTRIBUTORY
INFRINGEMENT HAS BEEN PART OF OUR LAW FOR ABOUT 80 YEARS.  IT HAS BEEN
APPLIED TO ENJOIN THOSE WHO SOUGHT TO CAUSE INFRINGEMENT BY SUPPLYING
SOMEONE ELSE WITH THE MEANS AND DIRECTIONS FOR INFRINGING A PATENT. 
ONE WHO MAKES A SPECIAL DEVICE CONSTITUTING THE HEART OF A PATENTED
MACHINE AND SUPPLIES IT TO OTHERS WITH DIRECTIONS (SPECIFIC OR IMPLIED)
TO COMPLETE THE MACHINE IS OBVIOUSLY APPROPRIATING THE BENEFIT OF THE
PATENTED INVENTION.  IT IS FOR THIS REASON THAT THE DOCTRINE OF
CONTRIBUTORY INFRINGEMENT, WHICH PREVENTS APPROPRIATING ANOTHER MAN'S
PATENTED INVENTION, HAS BEEN CHARACTERIZED AS 'AN EXPRESSION BOTH OF
LAW AND MORALS.'  CONSIDERABLE DOUBT AND CONFUSION AS TO THE SCOPE OF
CONTRIBUTORY INFRINGEMENT HAS RESULTED FROM A NUMBER OF DECISIONS OF
THE COURTS IN RECENT YEARS.  THE PURPOSE OF THIS SECTION IS TO CODIFY
IN STATUTORY FORM PRINCIPLES OF CONTRIBUTORY INFRINGEMENT AND AT THE
SAME TIME ELIMINATE THIS DOUBT AND CONFUSION."  THE LEGISLATIVE HISTORY
MAKES IT CLEAR THAT PARAGRAPH (D) COMPLEMENTS (C) WITH THE VIEW TO
AVOID THE APPLICATION OF THE PATENT MISUSE DOCTRINE TO CONDUCT SUCH AS
THAT OF THE PATENT OWNER IN THE PRESENT CASE.  SEE HEARINGS, H.R. 3760,
82D CONG., 1ST SESS., SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE,
1951, PP. 161-162, 169-175. 

FN10  THIS APPEARS FROM THE PATENT CLAIMS AND FROM THE TESTIMONY OF
RESPONDENT'S PATENT AND ENGINEERING EXPERTS.  THE FOLLOWING
REPRESENTATION WAS MADE IN CONNECTION WITH AMENDED CLAIMS:  "THE REAL
INVENTION IS FASTENING THE FOLDING MATERIAL CONSIDERABLY BELOW THE TOP
OF THE TONNEAU AND THEN USING A WIPING ARM AUTOMATICALLY OPERATED BY
THE BOW STRUCTURE FOR WIPING THE INSIDE OF THE FOLDING MATERIAL AS THE
TOP IS RAISED AND PRESSING IT AGAINST THE TOP OF THE TONNEAU." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

FOR MORE THAN A HUNDRED YEARS IT HAS BEEN THE LAW THAT THE OWNER OF A
DEVICE COVERED BY A COMBINATION PATENT CAN, WITHOUT INFRINGING, KEEP
THE DEVICE IN GOOD WORKING ORDER BY REPLACING, EITHER HIMSELF OR
THROUGH ANY SOURCE HE WISHES, UNPATENTED PARTS, BUT THAT HE MAY NOT,
WITHOUT RENDERING HIMSELF LIABLE FOR INFRINGEMENT, RECONSTRUCT THE
DEVICE ITSELF, WHETHER BECAUSE OF ITS DETERIORATION OR FOR ANY OTHER
REASON, AND EVEN THOUGH ALL OF THE COMPONENT PARTS OF THE DEVICE ARE
THEMSELVES UNPATENTED.  WILSON V. SIMPSON, 9 HOW.  109; COTTON-TIE CO.
V. SIMMONS, 106 U.S. 89; MORGAN ENVELOPE CO. V. ALBANY PERFORATED
WRAPPING PAPER CO., 152 U.S. 425; LEEDS & CATLIN CO. V. VICTOR TALKING
MACHINE CO., 213 U.S. 325; HEYER V. DUPLICATOR MFG. CO., 263 U.S. 100. 
THE UNDERLYING RATIONALE OF THE RULE IS OF COURSE THAT THE OWNER'S
LICENSE TO USE THE DEVICE CARRIES WITH IT AN IMPLIED LICENSE TO KEEP IT
FIT FOR THE USE FOR WHICH IT WAS INTENDED, BUT NOT TO DUPLICATE THE
INVENTION ITSELF.  CORRELATIVELY, ONE WHO KNOWINGLY PARTICIPATES IN AN
IMPERMISSIBLE RECONSTRUCTION OF A PATENTED COMBINATION IS GUILTY OF
CONTRIBUTORY INFRINGEMENT.  "DIRECT" AND "CONTRIBUTORY" INFRINGEMENTS
ARE NOW CODIFIED IN SEC. 271 OF THE PATENT ACT OF 1952.  35 U.S.C. SEC.
271.  (FN1)

IN THIS CASE THE DISTRICT COURT AND THE COURT OF APPEALS UPON FULL
CONSIDERATION HAVE CONCURRED IN FINDING THAT ARO'S REPLACEMENT
SUPPLYING OF THE FABRIC PORTION OF RESPONDENT'S CONVERTIBLE AUTOMOBILE
TOPS CONTRIBUTORILY INFRINGED THE LATTER'S TERRITORIAL RIGHTS UNDER THE
VALID MACKIE-DULUK COMBINATION PATENT, IN THAT SUCH ACTIVITY
CONSTITUTED A DELIBERATE PARTICIPATION ON ARO'S PART IN A FORBIDDEN
RECONSTRUCTION OF THE PATENTED COMBINATION.  IN REVERSING, THE COURT
HOLDS THAT THERE CAN BE NO DIRECT INFRINGEMENT (AND HENCE, OF COURSE,
NO CONTRIBUTORY INFRINGEMENT) OF A COMBINATION PATENT BY REPLACEMENT OF
ANY OF THE COMPONENTS OF THE PATENTED ENTITY UNLESS (1) SUCH COMPONENT
IS ITSELF SEPARATELY PATENTED OR (2) THE ENTIRE ENTITY IS REBUILT AT
ONE TIME.  SINCE THE FABRIC COVER COMPONENT OF THE MACKIE-DULUK TOP WAS
NOT ITSELF SEPARATELY PATENTED, AND SINCE IT CONSTITUTED BUT ONE PART
OF THE PATENTED COMBINATION, THE COURT CONCLUDES THAT ARO'S SUPPLYING
OF SUCH COVERS FOR REPLACEMENT ON CARS EQUIPPED WITH RESPONDENT'S TOPS
DID NOT AS A MATTER OF LAW CONSTITUTE CONTRIBUTORY INFRINGEMENT. 
(FN2) 

MY BROTHER BRENNAN'S OPINION, WHILE DISAGREEING WITH THAT CONCLUSION,
WOULD REVERSE BECAUSE ON ITS VIEW OF THE RECORD, UNTRAMMELED BY THE
CONTRARY FINDINGS AND CONCLUSIONS OF THE TWO LOWER COURTS, IT IS
CONCLUDED THAT WHAT HERE TOOK PLACE CONSTITUTED "REPAIR" AND NOT
"RECONSTRUCTION" OF THE MACKIE-DULUK TOPS.    I AM UNABLE TO SUBSCRIBE
TO EITHER OF THESE VIEWS. 

                                 I. 

I BELIEVE THAT THE NARROW CONCEPT OF WHAT CONSTITUTES IMPERMISSIBLE
RECONSTRUCTION, REFLECTED IN THE OPINION OF THE COURT, DEPARTS FROM
ESTABLISHED PRINCIPLES - PRINCIPLES WHICH, IT WILL BE SHOWN, WERE
APPROVED BY CONGRESS WHEN IT ENACTED SEC. 271 OF THE NEW PATENT ACT,
OVER OBJECTIONS OF THE DEPARTMENT OF JUSTICE ALTOGETHER COMPARABLE TO
THE POSITION WHICH IT NOW ADVANCES AS AMICUS IN THE PRESENT CASE. 

THE ALL-IMPORTANT THING IS TO DETERMINE FROM THE PAST DECISIONS OF
THIS COURT WHAT THE PROPER TEST OF "RECONSTRUCTION" IS, FOR I AGREE
THAT 35 U.S.C. SEC. 271(C) LIMITS CONTRIBUTORY INFRINGEMENT TO THAT
WHICH WOULD BE DIRECT INFRINGEMENT, AND THAT SEC. 271(A), DEALING WITH
DIRECT INFRINGEMENT, LEAVES INTACT THE PRE-EXISTING CASE LAW.  THE
CASES CITED ABOVE AMPLY DEMONSTRATE THAT THERE IS NO SINGLE YARDSTICK
FOR DETERMINING WHETHER PARTICULAR SUBSTITUTIONS OF NEW FOR ORIGINAL
UNPATENTED PARTS OF A PATENTED COMBINATION AMOUNT TO PERMISSIBLE REPAIR
OR FORBIDDEN RECONSTRUCTION.  THE MATTER IS TO BE RESOLVED "ON
PRINCIPLES OF COMMON SENSE APPLIED TO THE SPECIFIC FACTS" OF A GIVEN
CASE, HEYER, SUPRA, AT 102.  THE SINGLE SIMPLE RULE OF "RECONSTRUCTION"
WHICH THE COURT FINDS IN THOSE CASES CAN, IN MY VIEW, ONLY BE DIVINED
AT THE EXPENSE OF RECONSTRUCTING THE DECISIONS THEMSELVES. 

THE LEADING CASE IS WILSON V. SIMPSON, SUPRA.  THERE, IN HOLDING THAT
THE OWNER OF A PLANING MACHINE COVERED BY A COMBINATION PATENT COULD
REPLACE FROM ANY SOURCE HE DESIRED THE UNPATENTED CUTTING KNIVES
THEREOF, THE COURT SAID, P. 125: 

"THE RIGHT OF THE ASSIGNEE (THE OWNER OF THE MACHINE) TO REPLACE THE
CUTTER-KNIVES IS NOT BECAUSE THEY ARE OF PERISHABLE MATERIALS, BUT
BECAUSE THE INVENTOR OF THE MACHINE HAS SO ARRANGED THEM AS A PART OF
ITS COMBINATION, THAT THE MACHINE COULD NOT BE CONTINUED IN USE WITHOUT
A SUCCESSION OF KNIVES AT SHORT INTERVALS.  UNLESS THEY WERE REPLACED,
THE INVENTION WOULD HAVE BEEN BUT OF LITTLE USE TO THE INVENTOR OR TO
OTHERS.  THE OTHER CONSTITUENT PARTS OF THIS INVENTION, THOUGH LIABLE
TO BE WORN OUT, ARE NOT MADE WITH REFERENCE TO ANY USE OF THEM WHICH
WILL REQUIRE THEM TO BE REPLACED.  THESE, WITHOUT HAVING A DEFINITE
DURATION, ARE CONTEMPLATED BY THE INVENTOR TO LAST SO LONG AS THE
MATERIALS OF WHICH THEY ARE FORMED CAN HOLD TOGETHER IN USE IN SUCH A
COMBINATION.  NO REPLACEMENT OF THEM AT INTERMEDIATE INTERVALS IS MEANT
OR IS NECESSARY.  THEY MAY BE REPAIRED AS THE USE MAY REQUIRE.  WITH
SUCH INTENTIONS, THEY ARE PUT INTO THE STRUCTURE.  SO IT IS UNDERSTOOD
BY A PURCHASER, AND BEYOND THE DURATION OF THEM A PURCHASER OF THE
MACHINE HAS NOT A LONGER USE.  BUT IF ANOTHER CONSTITUENT PART OF THE
COMBINATION IS MEANT TO BE ONLY TEMPORARY IN THE USE OF THE WHOLE, AND
TO BE FREQUENTLY REPLACED, BECAUSE IT WILL NOT LAST AS LONG AS THE
OTHER PARTS OF THE COMBINATION, ITS INVENTOR CANNOT COMPLAIN, IF HE
SELLS THE USE OF HIS MACHINE, THAT THE PURCHASER USES IT IN THE WAY THE
INVENTOR MEANT IT TO BE USED, AND IN THE ONLY WAY IN WHICH THE MACHINE
CAN BE USED." 

IN THE COTTON-TIE CASE, SUPRA, THE QUESTION WAS WHETHER COMBINATION
PATENTS FOR THE MAKING OF TIES FOR COTTON BALES, CONSISTING OF A METAL
BUCKLE AND BAND, WERE INFRINGED BY ONE WHO BOUGHT AS SCRAP METAL SUCH
TIES AND BANDS AFTER SEVERANCE FROM COTTOM BALES, AND RESOLD THEM FOR
FURTHER USE AS BALING TIES AFTER PIECING TOGETHER SEVERAL SEGMENTS OF
THE OLD BANDS AND RECONNECTING THE RESULTING SINGLE BAND WITH THE
ORIGINAL BUCKLE.  IN HOLDING THAT THIS WAS AN IMPERMISSIBLE
RECONSTRUCTION OF THE PATENTED COMBINATION, (FN3) THE COURT SAID: 

"WHATEVER RIGHT THE DEFENDANTS COULD ACQUIRE TO THE USE OF THE OLD
BUCKLE, THEY ACQUIRED NO RIGHT TO COMBINE IT WITH A SUBSTANTIALLY NEW
BAND, TO MAKE A COTTON-BALE TIE.  THEY SO COMBINED IT WHEN THEY
COMBINED IT WITH A BAND MADE OF THE PIECES OF THE OLD BAND IN THE WAY
DESCRIBED.  WHAT THE DEFENDANTS DID IN PIECING TOGETHER THE PIECES OF
THE OLD BAND WAS NOT A REPAIR OF THE BAND OR THE TIE, IN ANY PROPER
SENSE.  THE BAND WAS VOLUNTARILY SEVERED BY THE CONSUMER AT THE COTTON
MILL BECAUSE THE TIE HAD PERFORMED ITS FUNCTION OF CONFINING THE BALE
OF COTTON IN ITS TRANSIT FROM THE PLANTATION OR THE PRESS TO THE MILL. 
ITS CAPACITY FOR USE AS A TIE WAS VOLUNTARILY DESTROYED.  AS IT LEFT
THE BALE IT COULD NOT BE USED AGAIN AS A TIE.  AS A TIE THE DEFENDANTS
RECONSTRUCTED IT, ALTHOUGH THEY USED THE OLD BUCKLE WITHOUT REPAIRING
THAT.  THE CASE IS NOT LIKE PUTTING NEW CUTTERS INTO A PLANING-MACHINE
IN PLACE OF THOSE WORN OUT BY USE, AS IN WILSON V. SIMPSON, 9 HOW. 
109.  THE PRINCIPLE OF THAT CASE WAS, THAT TEMPORARY PARTS WEARING OUT
IN A MACHINE MIGHT BE REPLACED TO PRESERVE THE MACHINE, IN ACCORDANCE
WITH THE INTENTION OF THE VENDOR, WITHOUT AMOUNTING TO A RECONSTRUCTION
OF THE MACHINE."  AT 93-94. 

IN MORGAN ENVELOPE, SUPRA, THE COURT FOUND NO CONTRIBUTORY
INFRINGEMENT ON THE PART OF ONE SUPPLYING TOILET PAPER ROLLS SPECIALLY
DESIGNED FOR USE IN A PATENTED COMBINATION, COMPRISING A DISPENSER AND
THE PAPER ROLLS THEMSELVES.  REMARKING (P. 433) THAT THERE "ARE
DOUBTLESS MANY CASES TO THE EFFECT THAT THE MANUFACTURE AND SALE OF A
SINGLE ELEMENT OF A COMBINATION, WITH INTENT THAT IT SHALL BE UNITED TO
THE OTHER ELEMENTS, AND SO COMPLETE THE COMBINATION, IS AN
INFRINGEMENT," THE COURT FOUND THE SITUATION BEFORE IT DISTINGUISHABLE
IN THAT "THE ELEMENT (PAPER ROLL) MADE BY THE ALLEGED INFRINGER IS AN
ARTICLE OF MANUFACTURE PERISHABLE IN ITS NATURE, WHICH IT IS THE OBJECT
OF THE MECHANISM (THE DISPENSER) TO DELIVER, AND WHICH MUST BE RENEWED
PERIODICALLY, WHENEVER THE DEVICE IS PUT TO USE."  IBID.  ON SIMILAR
GROUNDS THE COURT IN HEYER, SUPRA, FOUND NO CONTRIBUTORY INFRINGEMENT
IN THE INTENTIONAL SUPPLYING OF UNPATENTED GELATINE BANDS FOR USE IN A
DUPLICATING MACHINE COVERED BY A COMBINATION PATENT, OF WHICH ONE
ELEMENT WAS THE GELATINE BAND. 

ON THE OTHER HAND, IN LEEDS & CATLIN, SUPRA, THE INTENTIONAL
SUPPLYING OF PHONOGRAPH RECORDS FOR USE ON RESPONDENT'S TALKING
MACHINE, WHICH WERE PROTECTED BY A COMBINATION PATENT COVERING BOTH
MACHINE AND RECORDS, WAS HELD TO BE CONTRIBUTORY INFRINGEMENT, IT BEING
FOUND THAT RECORDS WERE THE "OPERATIVE ULTIMATE TOOL OF THE INVENTION,"
THAT RESPONDENT'S RECORDS WERE NOT INHERENTLY "PERISHABLE" IN NATURE,
AND THAT THE SUPPLYING OF THE COMPETITOR'S RECORDS WAS NOT TO REPLACE
RECORDS "DETERIORATED BY USE" OR WHICH HAD SUFFERED "BREAKAGE."  (P.
336.) 

THESE CASES DESTROY THE SIGNIFICANCE OF TWO FACTORS ON WHICH THE
COURT HEAVILY RELIES FOR ITS CONCLUSION IN THE PRESENT CASE:  FIRST,
THAT THE FABRIC TOP WAS AN UNPATENTED ELEMENT OF THE MACKIE-DULUK
INVENTION, AND, SECOND, THAT ARO'S TOPS CONSTITUTED A REPLACEMENT OF
BUT ONE PART OF THE PATENTED COMBINATION.  FOR AS WAS SAID IN LEEDS &
CATLIN (P. 333), "IT CAN MAKE NO DIFFERENCE AS TO THE INFRINGEMENT OR
NON-INFRINGEMENT OF A COMBINATION THAT ONE OF ITS ELEMENTS OR ALL OF
ITS ELEMENTS ARE UNPATENTED"; AND IN ALL OF THESE CASES THE CLAIMED
INFRINGING REPLACEMENT INVOLVED ONLY ONE OF THE ELEMENTS OF THE
PATENTED COMBINATION.  FURTHER, THE DIFFERENT RESULTS REACHED IN THE
CASES, TWO FINDING "RECONSTRUCTION" AND THREE ONLY "REPAIR," ALSO
VITIATE THE REASONING OF THE COURT, IN THAT THEY SHOW THAT THE ISSUE OF
RECONSTRUCTION VEL NON TURNS NOT UPON ANY SINGLE FACTOR, BUT DEPENDS
INSTEAD UPON A VARIETY OF CIRCUMSTANCES, DIFFERING FROM CASE TO CASE. 
THE TRUE RULE WAS WELL PUT BY THIS SAME COURT OF APPEALS IN ITS EARLIER
DECISION IN GOODYEAR SHOE MACHINERY CO. V. JACKSON, 112 F. 146, 150: 

"IT IS IMPRACTICABLE, AS WELL AS UNWISE, TO ATTEMPT TO LAY DOWN ANY
RULE ON THIS SUBJECT, OWING TO THE NUMBER AND INFINITE VARIETY OF
PATENTED INVENTIONS.  EACH CASE, AS IT ARISES, MUST BE DECIDED IN THE
LIGHT OF ALL THE FACTS AND CIRCUMSTANCES PRESENTED, AND WITH AN
INTELLIGENT COMPREHENSION OF THE SCOPE, NATURE, AND PURPOSE OF THE
PATENTED INVENTION, AND THE FAIR AND REASONABLE INTENTION OF THE
PARTIES.  HAVING CLEARLY IN MIND THE SPECIFICATION AND CLAIMS OF THE
PATENT, TOGETHER WITH THE CONDITION OF DECAY OR DESTRUCTION OF THE
PATENTED DEVICE OR MACHINE, THE QUESTION WHETHER ITS RESTORATION TO A
SOUND STATE WAS LEGITIMATE REPAIR, OR A SUBSTANTIAL RECONSTRUCTION OR
REPRODUCTION OF THE PATENTED INVENTION, SHOULD BE DETERMINED LESS BY
DEFINITIONS OR TECHNICAL RULES THAN BY THE EXERCISE OF SOUND COMMON
SENSE AND AN INTELLIGENT JUDGMENT." 

MORE PARTICULARLY, NONE OF THE PAST CASES IN THIS COURT OR IN THE
LOWER FEDERAL COURTS REMOTELY SUGGESTS THAT "RECONSTRUCTION" CAN BE
FOUND ONLY IN A SITUATION WHERE THE PATENTED COMBINATION HAS BEEN
REBUILT DE NOVO FROM THE GROUND UP.  (FN4) 

THE REFERENCE WHICH THE COURT MAKES TO THE MERCOID CASES, 320 U.S.
661, 320 U.S. 680, IS, IN MY OPINION, ENTIRELY INAPPOSITE, SINCE THOSE
CASES, AS THE COURT RECOGNIZES, P. 344, N. 10, SUPRA, DEALT WITH THE
ISSUE OF PATENT MISUSE, AN ISSUE WHICH SPECIFICALLY IS NOT BEFORE THE
COURT AT THIS TIME.  (FN5)  I REALIZE THAT SOME OF THE LANGUAGE IN THE
FIRST MERCOID CASE (320 U.S., AT 667-669), AND MORE PARTICULARLY ITS
DISAPPROVING REMARKS ABOUT LEEDS & CATLIN (ID., 668), MAY BE SAID TO
CAST DOUBT ON WHAT IT APPEARS TO ME THE CONTRIBUTORY INFRINGEMENT CASES
PLAINLY ESTABLISH.  YET I CANNOT BELIEVE THAT MERCOID IS PROPERLY TO BE
READ AS THROWING INTO DISCARD ALL THE TEACHING OF THE REPAIR
RECONSTRUCTION CASES.  WHAT WAS SAID IN MERCOID ABOUT CONTRIBUTORY
INFRINGEMENT MUST BE READ IN THE CONTEXT OF MERCOID'S CLAIM, FOUND TO
HAVE BEEN ESTABLISHED, THAT MID-CONTINENT HAD MISUSED ITS COMBINATION
PATENT BY ATTEMPTING IN EFFECT TO WIELD IT AS A WEAPON TO MONOPOLIZE
THE SALE OF AN UNPATENTED ELEMENT, A CLAIM WHICH IS NOT HERE MADE. 

I THINK IT SIGNIFICANT THAT IN STATING (P. 668) THAT THE DOCTRINE OF
THE LEEDS & CATLIN CASE "MUST NO LONGER PREVAIL AGAINST THE DEFENSE
THAT A COMBINATION PATENT IS BEING USED TO PROTECT AN UNPATENTED PART
FROM COMPETITION," THE COURT WENT ON TO SAY, AT 668-669: 

"THAT RESULT OBTAINS HERE THOUGH WE ASSUME FOR THE PURPOSES OF THIS
CASE THAT MERCOID WAS A CONTRIBUTORY INFRINGER AND THAT RESPONDENTS
COULD HAVE ENJOINED THE INFRINGEMENT HAD THEY NOT MISUSED THE PATENT
FOR THE PURPOSE OF MONOPOLIZING UNPATENTED MATERIAL.  INASMUCH AS THEIR
MISUSE OF THE PATENT WOULD HAVE PRECLUDED THEM FROM ENJOINING A DIRECT
INFRINGEMENT (CITING THE MORTON SALT CASE) THEY CANNOT STAND IN ANY
BETTER POSITION WITH RESPECT TO A CONTRIBUTORY INFRINGER.  WHERE THERE
IS A COLLISION BETWEEN THE PRINCIPLE OF THE CARBICE CASE AND THE
CONVENTIONAL RULES GOVERNING EITHER DIRECT OR CONTRIBUTORY
INFRINGEMENT, THE FORMER PREVAILS." 

THUS MERCOID, FAR FROM MODIFYING THE DOCTRINE OF THE WILSON LINE OF
CASES AS TO WHAT CONSTITUTES CONTRIBUTORY INFRINGEMENT, ASSUMED THAT
DOCTRINE AND DEFINED THE SPECIAL CIRCUMSTANCES WHEN THE COURT WOULD
REFUSE TO GIVE A PATENTEE THE BENEFIT OF THAT DOCTRINE.  (FN6)  THOSE
CIRCUMSTANCES ARE NOT PRESENT IN THIS CASE. 

AS FOR MY BROTHER BLACK'S OPINION, THE CONGRESSIONAL ACTION OF 1952,
REAFFIRMING WHAT I CONSIDER MUST BE TAKEN AS THE DOCTRINE OF THE WILSON
LINE OF CASES, ALSO REQUIRES REJECTION OF WHAT HE NOW CONCEIVES TO BE A
MORE ENLIGHTENED POLICY IN THIS FIELD OF LAW.  (FN7)

               II. 

MY BROTHER BRENNAN'S OPINION FOR REVERSAL RESTS, AS I UNDERSTAND IT,
NOT UPON THE VIEW THAT THE TWO COURTS BELOW APPLIED WRONG LEGAL
STANDARDS IN REACHING THEIR CONCLUSION, BUT THAT "'REPAIR' OR
'RECONSTRUCTION' IS SO FAR A QUESTION OF LAW AS TO RELIEVE APPELLATE
REVIEW FROM THE RESTRAINTS OF FEDERAL RULE OF CIVIL PROCEDURE 52(A)"
AND TO ALLOW THE "MAKING OF AN INDEPENDENT APPLICATION OF THE PROPER
STANDARD" TO THE FACTS IN THIS CASE.  FOR REASONS LARGER THAN THIS
PARTICULAR LITIGATION I CANNOT AGREE THAT IT IS EITHER NECESSARY OR
APPROPRIATE FOR US TO SUBSTITUTE OUR PARTICULAR JUDGMENT ON THIS
PARTICULAR APPLICATION OF CORRECT STANDARDS TO THE FACTS. 

WE DO NOT SIT IN JUDGMENT ON THE DECISIONS OF THE LOWER FEDERAL
COURTS BECAUSE WE ARE ENDOWED WITH SOME SPECIAL MEASURE OF DISCERNMENT,
BUT BECAUSE IT IS IMPERATIVE THAT ON MATTERS OF GENERAL CONCERN, THAT
IS ON MATTERS OF PRINCIPLE, THERE SHOULD BE ONE AUTHORITATIVE AND
UNIFYING EXPOSITOR OF FEDERAL LAW.  I NEED NOT JOIN ISSUE ON WHETHER
RULE 52(A) SERVES TO CONSTRICT APPELLATE REVIEW IN CASES LIKE THIS, CF.
GRAVER TANK & MFG. CO. V. LINDE AIR PRODUCTS CO., 336 U.S. 271, 275,
279, FOR THE RULE WHICH I BELIEVE SHOULD LIMIT US IS BASED ON THE
PURPOSES WHICH THIS COURT CAN AND SHOULD FULFILL. 

IN THIS CASE THERE IS NO QUESTION BUT THAT THE TWO COURTS BELOW
ADVERTED TO ALL THE RELEVANT STANDARDS BUT, HAVING DONE SO, THEY
CONCLUDED THAT ON THE FACTS BEFORE THEM THERE WAS CONTRIBUTORY
INFRINGEMENT.  I CANNOT SEE WHAT ELSE MY BROTHER BRENNAN IS DOING BUT
REACHING A DIFFERENT CONCLUSION OF HIS OWN.  I CANNOT UNDERSTAND HOW
SUCH A CONCLUSION, EVEN WERE IT ACCEPTED BY A MAJORITY OF THE COURT,
COULD PROVIDE GREATER GUIDANCE TO EITHER COURTS OR LITIGANTS THAN WOULD
A MERE STATEMENT OF APPROBATION FOR THE STANDARDS ESPOUSED BY THE
COURTS BELOW. 

BECAUSE THE QUESTION OF "REPAIR" OR "RECONSTRUCTION" MUST BE A MIXED
QUESTION OF LAW AND FACT, IT DOES NOT FOLLOW THAT WE SHOULD REVIEW
OTHER THAN GROSS MISAPPLICATIONS (CERTAINLY NOT PRESENT HERE), WHEN THE
LEGAL INGREDIENT OF THIS MIXTURE IS CONCEDEDLY CORRECT.  IN THE
ANALOGOUS AREA OF DETERMINING THE ISSUE OF PATENTABLE NOVELTY, COURTS
OF APPEAL HAVE CONSISTENTLY DEFERRED TO THE JUDGMENT OF THE DISTRICT
COURT (SEE THE EXCELLENT STATEMENT OF JUDGE FAHY IN STANDARD OIL
DEVELOPMENT CO. V. MARZALL, 86 U.S. APP. D.C. 210, 181 F.2D 280, 283
284), AND WHERE THEY HAVE DEPARTED FROM THIS JUDGMENT THE REASON HAS
GENERALLY BEEN BECAUSE THE DISTRICT COURT HAD FAILED TO REACH ITS
CONCLUSIONS BY REFERENCE TO CORRECT STANDARDS.  SEE KWIKSET LOCKS,
INC., V. HILLGREN, 210 F.2D 483; CF. GREAT ATLANTIC & PACIFIC TEA CO.
V. SUPERMARKET EQUIPMENT CORP., 340 U.S. 147, 153, 154.  WHETHER THIS
PRACTICE BE CONSIDERED AS COMPELLED BY THE DICTATES OF GOOD SENSE OR BY
RULE 52(A), SURELY PARTICULAR JUDGMENTS FAIRLY AND REASONABLY REACHED
IN TWO LOWER COURTS IN LIGHT OF CORRECT LEGAL STANDARDS DESERVE AT
LEAST THAT SAME DEFERENCE FROM US.    I WOULD AFFIRM. 

FN1  "(A)  EXCEPT AS OTHERWISE PROVIDED IN THIS TITLE, WHOEVER
WITHOUT AUTHORITY MAKES, USES OR SELLS ANY PATENTED INVENTION, WITHIN
THE UNITED STATES DURING THE TERM OF THE PATENT THEREFOR, INFRINGES THE
PATENT. 

"(B)  WHOEVER ACTIVELY INDUCES INFRINGEMENT OF A PATENT SHALL BE
LIABLE AS AN INFRINGER. 

"(C)  WHOEVER SELLS A COMPONENT OF A PATENTED MACHINE, MANUFACTURE,
COMBINATION OR COMPOSITION, OR A MATERIAL OR APPARATUS FOR USE IN
PRACTICING A PATENTED PROCESS, CONSTITUTING A MATERIAL PART OF THE
INVENTION, KNOWING THE SAME TO BE ESPECIALLY MADE OR ESPECIALLY ADAPTED
FOR USE IN AN INFRINGEMENT OF SUCH PATENT, AND NOT A STAPLE ARTICLE OR
COMMODITY OF COMMERCE SUITABLE FOR SUBSTANTIAL NONINFRINGING USE, SHALL
BE LIABLE AS A CONTRIBUTORY INFRINGER." 

FN2  THE MACKIE-DULUK INVENTION WAS DESCRIBED BY THE COURT OF APPEALS
AS FOLLOWS: 

"FOLDING TOPS FOR VEHICLES CONSISTING OF BOWS OF WOOD OR METAL
COVERED WITH A FLEXIBLE WATERPROOF FABRIC  ...  ARE, OF COURSE, AS OLD
AS THE AUTOMOBILE ART WHICH IN THE BEGINNING ONLY ADOPTED WITH
NECESSARY MODIFICATIONS THE MUCH OLDER ART OF COLLAPSIBLE TOPS FOR
CHAISES, BUGGIES AND SOME OTHER HORSE DRAWN VEHICLES.  THE REAR PANELS
OF THE FOLDING TOPS OF EARLIER DAYS WERE FASTENED PERMANENTLY AT THE
BOTTOM TO THE OUTSIDE OF THE TOP OF THE REAR PORTION OF THE BODY OF THE
VEHICLE, AND THE QUARTERS, THE REAR PORTIONS OF THE SIDES OF THE
VEHICLE, IF PROTECTED AT ALL, WERE PROTECTED WITH FLAPS OR CURTAINS,
SOMETIMES INTEGRAL WITH THE TOP AND SOMETIMES NOT, FASTENED AT THE
BOTTOM TO THE OUTSIDE OF THE TOP OF THE BODY WITH BUTTONS, SNAPS OR
SOME EQUIVALENT MEANS OF FASTENING.  NATURALLY, TO PREVENT TEARING,
THESE QUARTER FLAPS HAD TO BE UNFASTENED BY HAND WHEN THE TOP WAS
LOWERED AND WHEN THE TOP WAS PUT UP FASTENED AGAIN BY HAND FOR NEAT
APPEARANCE AND ALSO TO PREVENT THE ENTRANCE OF RAIN.  THIS MANUAL
FASTENING AND UNFASTENING OF THE BOTTOMS OF THE QUARTER FLAPS PRESENTED
NO GREAT PROBLEM UNTIL THE ADVENT OF THE SO-CALLED CONVERTIBLE
AUTOMOBILE WITH A FOLDING TOP OPERATED MECHANICALLY RATHER THAN
MANUALLY.  THE PROBLEM PRESENTED BY THE QUARTER FLAPS OF TOPS OF THIS
KIND WAS FIRST PARTIALLY SOLVED BY FASTENING THE BOTTOM OF THE FLAP TO
THE OUTSIDE OF THE TOP OF THE BODY OF THE VEHICLE WITH 'RELEASABLE
FASTENING MEANS,' THAT IS TO SAY, WITH SOME SORT OF SLIDE FASTENING
DEVICE WHICH WOULD DETACH AUTOMATICALLY WHEN THE TOP WAS LOWERED.  THE
MAJOR PART OF THE PROBLEM REMAINED, HOWEVER, FOR WHEN THE TOP WAS PUT
UP THE FLAPS HAD TO BE FASTENED MANUALLY, WHICH MEANT THAT THE OPERATOR
WAS REQUIRED TO GET OUT OF THE CAR ALTOGETHER, OR AT LEAST TO REACH
OUT, OFTEN, OF COURSE, IN THE RAIN.  THE OBJECT OF THE MACKIE-DULUK
PATENT WAS 'TO PROVIDE AN AUTOMATIC FASTENING AND SEALING MEANS AT THE
TOP AND SIDES OF THE TONNEAU OF THE CONVERTIBLE' WHICH 'NEVER HAS TO BE
OPERATED OR TOUCHED BY THE DRIVER OF THE CAR.'  AND, AS WE HAVE ALREADY
INDICATED, THE DISTRICT COURT FOUND THAT THE PATENTEES SUCCEEDED IN
ATTAINING THEIR OBJECT BY DEVISING A PATENTABLE COMBINATION OF
ELEMENTS. 

"THE MACKIE-DULUK DEVICE CONSISTED OF PROVIDING AN ELONGATED FLAP
INTEGRAL WITH THE QUARTER SECTIONS OF THE FABRIC TOP ADAPTED TO BE
PERMANENTLY FASTENED AT THE BOTTOM DEEP WITHIN THE BODY OF THE CAR, AT
OR PERHAPS BELOW, BUT CERTAINLY NOT IN FRONT, OF THE AXIS OF ROTATION
OF THE BOWS, TO A TROUGH WELDED TO THE BODY OF THE CAR AND PROVIDED
WITH A DRAIN TO CARRY OFF WATER ENTERING BETWEEN THE FLAP AND THE CAR
BODY.  IN ADDITION, TO MINIMIZE THE ENTRANCE OF WATER BETWEEN THE BODY
AND THE FLAP, THEY PROVIDED A 'WIPER ARE' SO-CALLED, WHICH IN EFFECT
ACTED AS AN ADDITIONAL, LOW REARWARD BOW PRESSING THE DOWNWARDLY
EXTENDING FLAP OUTWARDLY AGAINST THE TOP OF THE BODY OF THE VEHICLE AS
THE TOP IS RAISED FROM ITS FOLDED POSITION TO CLOSE, OR SUBSTANTIALLY
TO CLOSE, ANY GAP THERE MIGHT BE BETWEEN THE INSIDE OF THE TOP OF THE
BODY OF THE CAR AND THE FLAP EXTENDING DOWNWARD INTO THE INTERIOR OF
THE AUTOMOBILE BODY."  270 F.2D, AT 202-203. 

THE DISTRICT COURT SAID: 

"MACKIE-DULUK WAS A SUBSTANTIAL AND ENLIGHTENED STEP, FILLING A LONG
FELT WANT, IN A FIELD IN WHICH DEFENDANTS HAVE PRODUCED, WITH ONE
EXCEPTION, ONLY PAPER PATENTS, THE MOST EMPHASIZED BEING FOREIGN, WHICH
DID NOT EVEN PURPORT TO DO WHAT MACKIE-DULUK ACCOMPLISHED."  ID., AT
201. 

FN3  WHILE, AS THE COURT REMARKS (ANTE, P. 343, N. 9), THE COURT
THERE DID REFER TO THE FACT THAT THE ORIGINAL TIES WERE STAMPED
"LICENSED TO USE ONCE ONLY," IT IS MANIFEST THAT NOTHING REALLY TURNED
ON THAT POINT. 

FN4  COMPARE NOTE 7, INFRA. 

FN5  THE DISTRICT COURT FOUND AGAINST ARO'S CLAIM OF PATENT MISUSE
BASED ON RESPONDENT'S ACQUISITION OF TERRITORIAL RIGHTS IN THE MACKIE
DULUK PATENT.  ARO DID NOT APPEAL THAT FINDING. 

FN6  IT SEEMS CLEAR FROM THE LEGISLATIVE HISTORY OF THE 1952 ACT THAT
CONGRESS INTENDED (1) TO REAFFIRM THE DOCTRINE OF CONTRIBUTORY
INFRINGEMENT AS LAID DOWN IN WILSON V. SIMPSON AND REASSERTED IN CASES
LIKE LEEDS & CATLIN, (2) TO GIVE THAT DOCTRINE PRECEDENCE AGAINST A
CLAIM OF PATENT MISUSE AS CONCEIVED IN THE MERCOID CASES, AT LEAST
WHERE THE MISUSE IS SAID TO INHERE SIMPLY IN ASSERTION OF PATENT
RIGHTS.  BOTH THE PROPONENTS OF THE STATUTE AND THE DEPARTMENT OF
JUSTICE WHICH OPPOSED IT ASSUMED THAT CONTRIBUTORY INFRINGEMENT, AS
DEFINED IN THE WILSON LINE OF CASES, WAS ONE THING, AND MISUSE, AS THEN
MOST RECENTLY DEFINED IN MERCOID, ANOTHER.  SEE HEARINGS BEFORE
SUBCOMMITTEE OF HOUSE JUDICIARY COMMITTEE ON H.R. 3866, 81ST CONG., 1ST
SESS. 53-59 (1949); HEARINGS BEFORE SUBCOMMITTEE OF HOUSE JUDICIARY
COMMITTEE ON H.R. 3760, 82D CONG., 1ST SESS. 168-175 (1951).  THE
OPINION OF THE COURT SEEMS TO RECONFIRM MERCOID TO FULLER EFFECTIVENESS
THAN IT HAD EVEN BEFORE THE 1952 ACT BY TREATING IT AS IF THE TEST OF
WHETHER THERE WAS CONTRIBUTORY INFRINGEMENT AT ALL WAS TO BE FOUND IN
ITS LANGUAGE. 

FN7  THIS POLICY WAS BEFORE THE COMMITTEE IN THE FORM OF AN OBJECTION
TO THE PROPOSED CODIFICATION OF THE WILSON LINE OF CASES AND ITS
DOCTRINE IN THE 1952 ACT.  DESPITE THE OBJECTION CONGRESS PASSED SEC.
271 WITHOUT AMENDMENT. 

"MR. CRUMPACKER:  WE HAVE RECEIVED PROTESTS FROM MANUFACTURERS OF
REPLACEMENT PARTS FOR SUCH THINGS AS AUTOMOBILES, FARM TRACTORS, AND
THE LIKE, WHO EVIDENTLY FEEL THAT THE LANGUAGE USED IN THIS H.R. 3760
WOULD MAKE THEM CONTRIBUTORY INFRINGERS OF PATENTS ON THE ORIGINAL
ARTICLE, THE TRACTOR OR SOMETHING OF THAT SORT. 

     *         *         *         *         * 

"MR. RICH (WHO WAS THE PRINCIPAL SPOKESMAN FOR THE GROUP WHICH
DRAFTED THE PRESENT STATUTE): THOSE WERE THE MOST VOCIFEROUS OBJECTORS
TO THE OLD BILLS ON THE SUBJECT.  WHETHER OR NOT THEY WOULD BE LIABLE
WOULD DEPEND ON THE FACTS IN EACH PARTICULAR CASE  ...  ."  HEARINGS
BEFORE SUBCOMMITTEE OF HOUSE JUDICIARY COMMITTEE ON H.R. 3760, 82D
CONG., 1ST SESS., AT P. 153 (1951). 
..END :


















WILSON V. SCHNETTLER 365 U.S. 381 


NO. 182.  ARGUED DECEMBER 15, 1960 - DECIDED FEBRUARY 27, 1961 - 275
F.2D 932, AFFIRMED. 


RESPONDENTS, WHO ARE FEDERAL AGENTS, ARRESTED PETITIONER WITHOUT A
WARRANT AND SEIZED NARCOTICS WHICH THEY FOUND ON HIS PERSON IN THE
COURSE OF AN INCIDENTAL SEARCH.  THEY THEN DELIVERED HIM TO STATE
AUTHORITIES WHO CONFINED HIM IN JAIL.  AFTER A STATE GRAND JURY HAD
INDICTED PETITIONER FOR POSSESSING NARCOTICS IN VIOLATION OF STATE LAW,
HE MOVED IN A STATE COURT FOR AN ORDER SUPPRESSING USE OF THE NARCOTICS
AS EVIDENCE IN HIS IMPENDING TRIAL, AND THE STATE COURT DENIED THE
MOTION.  PETITIONER THEN SUED IN A FEDERAL DISTRICT COURT TO IMPOUND
THE NARCOTICS, TO ENJOIN THEIR USE IN EVIDENCE AND TO ENJOIN
RESPONDENTS FROM TESTIFYING AT PETITIONER'S TRIAL IN THE STATE COURT. 
ALTHOUGH HIS COMPLAINT ALLEGED THAT THE ARREST WAS MADE WITHOUT A
WARRANT, THERE WAS NO ALLEGATION THAT IT WAS MADE WITHOUT PROBABLE
CAUSE.  HELD:  DISMISSAL OF THE COMPLAINT FOR FAILURE TO STATE A CLAIM
UPON WHICH RELIEF COULD BE GRANTED IS SUSTAINED.  PP. 382-388. 

(A)  SINCE THE COMPLAINT DID NOT ALLEGE THAT THE ARREST WAS WITHOUT
PROBABLE CAUSE AND SINCE THE ARREST AND INCIDENTAL SEARCH AND SEIZURE
WERE LAWFUL IF RESPONDENTS HAD PROBABLE CAUSE TO MAKE THE ARREST, THE
COMPLAINT FAILED TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED. 
PP. 383-384. 

(B)  PETITIONER HAD A PLAIN AND ADEQUATE REMEDY AT LAW IN THE
CRIMINAL CASE PENDING AGAINST HIM IN THE STATE COURT.  PP. 384-385. 

(C)  BY THIS ACTION IN THE FEDERAL COURT, PETITIONER SOUGHT NOT ONLY
TO INTERFERE WITH AND EMBARRASS THE STATE COURT IN THE IMPENDING
CRIMINAL CASE, BUT ALSO COMPLETELY TO THWART ITS JUDGMENT BY
RELITIGATING IN A TRIAL DE NOVO THE VERY ISSUE THAT HE HAD ALREADY
LITIGATED UNSUCCESSFULLY IN THE STATE COURT; AND THAT IS NOT
PERMISSIBLE.  PP. 385-386. 

(D)  REA V. UNITED STATES, 350 U.S. 214, DISTINGUISHED.  PP. 387
388. 

WILSON V. SCHNETTLER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, WHO ARE FEDERAL NARCOTICS AGENTS, ARRESTED PETITIONER
WITHOUT A WARRANT IN COOK COUNTY, ILLINOIS, AND, IN THE COURSE OF AN
INCIDENTAL SEARCH, FOUND NARCOTIC DRUGS ON HIS PERSON WHICH THEY
SEIZED.  RESPONDENTS THEN DELIVERED PETITIONER TO THE COOK COUNTY
AUTHORITIES WHO CONFINED HIM IN THE COUNTY JAIL.  IN DUE COURSE, THE
COUNTY GRAND JURY RETURNED AN INDICTMENT CHARGING PETITIONER WITH
POSSESSING THE NARCOTICS IN VIOLATION OF AN ILLINOIS STATUTE.  SOON
AFTER HIS ARRAIGNMENT AND PLEA OF "NOT GUILTY," PETITIONER MOVED THE
COURT FOR AN ORDER SUPPRESSING THE USE OF THE NARCOTICS AS EVIDENCE IN
HIS IMPENDING CRIMINAL TRIAL.  AFTER A FULL HEARING, INCLUDING THE
TAKING OF EVIDENCE (NOT CONTAINED IN THIS RECORD), THE COURT DENIED THE
MOTION. 

BEFORE THE CASE WAS REACHED FOR TRIAL, PETITIONER BROUGHT THE PRESENT
ACTION AGAINST RESPONDENTS IN THE FEDERAL DISTRICT COURT IN CHICAGO TO
IMPOUND THE NARCOTICS (THOUGH HE DID NOT ALLEGE THAT RESPONDENTS HAVE
POSSESSION OF THEM) AND TO ENJOIN THEIR USE, AND THE RESPONDENTS FROM
TESTIFYING, AT THE TRIAL OF THE CRIMINAL CASE IN THE STATE COURT.  THE
VERY MEAGER COMPLAINT ALLEGED, IN ADDITION TO THE FACTS WE HAVE STATED,
ONLY A FEW OF THE FACTS RELATING TO PETITIONER'S ARREST, (FN1) AND THAT
HE BELIEVES "RESPONDENTS WILL BE CALLED TO TESTIFY IN THE STATE
CRIMINAL CASE THAT THE PETITIONER UNLAWFULLY HAD IN HIS POSSESSION THE
NARCOTIC DRUGS SEIZED BY THE RESPONDENTS  ...  ."  IT CONCLUDED WITH A
PRAYER FOR THE RELIEF STATED. 

RESPONDENTS MOVED TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF COULD BE GRANTED.  AFTER A HEARING, THE
DISTRICT COURT GRANTED THE MOTION AND DISMISSED THE ACTION.  ON APPEAL,
THE SEVENTH CIRCUIT AFFIRMED.  275 F.2D 932.  TO CONSIDER PETITIONER'S
CLAIM THAT THE JUDGMENT IS REPUGNANT TO CONTROLLING RULES AND DECISIONS
OF THIS COURT, WE GRANTED CERTIORARI.  363 U.S. 840. 

WE HAVE CONCLUDED THAT THE ACTION WAS PROPERLY DISMISSED AND THAT THE
JUDGMENT MUST BE AFFIRMED. 

ALTHOUGH THE COMPLAINT ALLEGED THAT THE ARREST WAS MADE WITHOUT A
WARRANT, THERE WAS NO ALLEGATION THAT IT WAS MADE WITHOUT PROBABLE
CAUSE.  IN THE ABSENCE OF SUCH AN ALLEGATION THE COURTS BELOW COULD
NOT, NOR CAN WE, ASSUME THAT RESPONDENTS ARRESTED PETITIONER WITHOUT
PROBABLE CAUSE TO BELIEVE THAT HE HAD COMMITTED OR WAS COMMITTING A
NARCOTICS OFFENSE.  AND IF THEY HAD SUCH PROBABLE CAUSE, THE ARREST,
THOUGH WITHOUT A WARRANT, WAS LAWFUL AND THE SEIZURE OF THE FOUND
NARCOTICS WERE VALIDLY MADE INCIDENTALLY TO A LAWFUL ARREST.  WEEKS V.
UNITED STATES, 232 U.S. 383, 392; CARROLL V. UNITED STATES, 267 U.S.
132, 158; AGNELLO V. UNITED STATES, 269 U.S. 20, 30; GIORDENELLO V.
UNITED STATES, 357 U.S. 480, 483; DRAPER V. UNITED STATES, 358 U.S.
307, 310-311.  (FN2)  FOR THIS REASON ALONE THE COMPLAINT FAILED TO
STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED. 

NOR DID THE COMPLAINT ALLEGE, EVEN IN CONCLUSIONAL TERMS, THAT
PETITIONER DOES NOT HAVE A PLAIN AND ADEQUATE REMEDY AT LAW IN THE
STATE COURT TO REDRESS ANY POSSIBLE ILLEGALITY IN THE ARREST AND
INCIDENTAL SEARCH AND SEIZURE.  INDEED, THE ALLEGATIONS OF THE
COMPLAINT AFFIRMATIVELY SHOW THAT PETITIONER DOES HAVE SUCH A REMEDY IN
THE ILLINOIS COURT AND THAT HE HAS ACTUALLY PROSECUTED IT THERE, BUT
ONLY TO THE POINT OF AN ADVERSE INTERLOCUTORY ORDER.  THAT COURT, WHOSE
JURISDICTION FIRST ATTACHED, RETAINS JURISDICTION OVER THIS MATTER TO
THE EXCLUSION OF ALL OTHER COURTS - CERTAINLY TO THE EXCLUSION OF THE
FEDERAL DISTRICT COURT - UNTIL ITS DUTY HAS BEEN FULLY PERFORMED,
HARKRADER V. WADLEY, 172 U.S. 148, 164; (FN3) PECK V. JENNESS, 7 HOW. 
612, 624-625, (FN4) AND IT CAN DETERMINE THIS MATTER AS WELL AS, IF NOT
BETTER THAN, THE FEDERAL COURT.  IF, AT THE CRIMINAL TRIAL, THE
ILLINOIS COURT ADHERES TO ITS INTERLOCUTORY ORDER ON THE SUPPRESSION
ISSUE TO PETITIONER'S PREJUDICE, HE HAS AN APPEAL TO THE SUPREME COURT
OF THAT STATE, AND A RIGHT IF NEED BE TO PETITION FOR "REVIEW BY THIS
COURT OF ANY FEDERAL QUESTIONS INVOLVED."  DOUGLAS V. CITY OF
JEANNETTE, 319 U.S. 157, 163.  IT IS THEREFORE CLEAR THAT PETITIONER
HAS A PLAIN AND ADEQUATE REMEDY AT LAW IN THE CRIMINAL CASE PENDING
AGAINST HIM IN THE ILLINOIS COURT. 

THERE IS STILL ANOTHER CARDINAL REASON WHY IT WAS PROPER FOR THE
DISTRICT COURT TO DISMISS THE COMPLAINT.  WE LIVE IN THE JURISDICTION
OF TWO SOVEREIGNTIES.  EACH HAS ITS OWN SYSTEM OF COURTS TO INTERPRET
AND ENFORCE ITS LAWS, ALTHOUGH IN COMMON TERRITORY.  THESE COURTS COULD
NOT PERFORM THEIR RESPECTIVE FUNCTIONS WITHOUT EMBARRASSING CONFLICTS
UNLESS RULES WERE ADOPTED TO AVOID THEM.  SUCH RULES HAVE BEEN
ADOPTED.  ONE OF THEM IS THAT AN ACCUSED "SHOULD NOT BE PERMITTED TO
USE THE MACHINERY OF ONE SOVEREIGNTY TO OBSTRUCT HIS TRIAL IN THE
COURTS OF THE OTHER, UNLESS THE NECESSARY OPERATION OF SUCH MACHINERY
PREVENTS HIS HAVING A FAIR TRIAL."  PONZI V. FESSENDEN, 258 U.S. 254,
260.  ANOTHER IS THAT FEDERAL COURTS SHOULD NOT EXERCISE THEIR
DISCRETIONARY POWER "TO INTERFERE WITH OR EMBARRASS THREATENED
PROCEEDINGS IN STATE COURTS SAVE IN THOSE EXCEPTIONAL CASES WHICH CALL
FOR THE INTERPOSITION OF A COURT OF EQUITY TO PREVENT IRREPARABLE
INJURY WHICH IS CLEAR AND IMMINENT  ...  ."  DOUGLAS V. CITY OF
JEANNETTE, SUPRA, AT 163. 

BY THIS ACTION, PETITIONER NOT ONLY SEEKS TO INTERFERE WITH AND
EMBARRASS THE STATE COURT IN HIS CRIMINAL CASE, BUT HE ALSO SEEKS
COMPLETELY TO THWART ITS JUDGMENT BY RELITIGATING IN A TRIAL DE NOVO IN
A FEDERAL COURT THE VERY ISSUE THAT HE HAS ALREADY LITIGATED IN THE
STATE COURT.  "IF WE WERE TO SANCTION THIS INTERVENTION, WE WOULD
EXPOSE EVERY STATE CRIMINAL PROSECUTION TO INSUPPORTABLE DISRUPTION. 
EVERY QUESTION OF PROCEDURAL DUE PROCESS OF LAW - WITH ITS FAR-FLUNG
AND UNDEFINED RANGE - WOULD INVITE A FLANKING MOVEMENT AGAINST THE
SYSTEM OF STATE COURTS BY RESORT TO THE FEDERAL FORUM, WITH REVIEW IF
NEED BE TO THIS COURT, TO DETERMINE THE ISSUE.  ASSERTED
UNCONSTITUTIONALITY IN THE IMPANELING AND SELECTION OF THE GRAND AND
PETIT JURIES, IN THE FAILURE TO APPOINT COUNSEL, IN THE ADMISSION OF A
CONFESSION, IN THE CREATION OF AN UNFAIR TRIAL ATMOSPHERE, IN THE
MISCONDUCT OF THE TRIAL COURT (AND, WE MAY ADD, IN THE RULING OF
MOTIONS TO SUPPRESS EVIDENCE, AND IN RULING THE COMPETENCY OF WITNESSES
AND THEIR TESTIMONY) - ALL WOULD PROVIDE READY OPPORTUNITIES, WHICH
CONSCIENTIOUS COUNSEL MIGHT BE BOUND TO EMPLOY, TO SUBVERT THE ORDERLY,
EFFECTIVE PROSECUTION OF LOCAL CRIME IN LOCAL COURTS.  TO SUGGEST THESE
DIFFICULTIES IS TO RECOGNIZE THEIR SOLUTION."  STEFANELLI V. MINARD,
342 U.S. 117, 123-124. 

NOTWITHSTANDING ALL OF THIS, PETITIONER CONTENDS THAT THE AVERMENTS
OF HIS COMPLAINT WERE SUFFICIENT TO ENTITLE HIM TO THE RELIEF PRAYED
UNDER THE PRINCIPLES ANNOUNCED IN REA V. UNITED STATES, 350 U.S. 214. 
BUT IT IS PLAIN THAT THE AVERMENTS OF THIS COMPLAINT DO NOT INVOKE OR
EVEN APPROACH THE PRINCIPLES OF THE REA CASE.  THAT CASE DID NOT HOLD,
AS PETITIONER'S CONTENTION ASSUMES, THAT NARCOTIC DRUGS LAWFULLY SEIZED
BY FEDERAL OFFICERS ARE INADMISSIBLE, OR THAT SUCH OFFICERS MAY NOT
TESTIFY ABOUT THEIR SEIZURE, IN STATE PROSECUTIONS.  SUCH A CONCEPT
WOULD RUN COUNTER TO THE EXPRESS COMMAND OF CONGRESS THAT FEDERAL
OFFICERS SHALL COOPERATE WITH THE STATES IN SUCH INVESTIGATIONS AND
PROSECUTIONS.  SEE 21 U.S.C. SEC. 198(A).  INDEED, THE SITUATION HERE
IS JUST THE REVERSE OF THE SITUATION IN REA.  THERE, THE ACCUSED HAD
BEEN INDICTED IN A FEDERAL COURT FOR THE UNLAWFUL ACQUISITION OF
MARIHUANA, AND HAD MOVED IN THAT COURT, UNDER RULE 41(E) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE (18 U.S.C. APP. RULE 41(E)), FOR AN ORDER
SUPPRESSING THE USE OF THE MARIHUANA AS EVIDENCE AT THE TRIAL.  AFTER
HEARING, THE DISTRICT COURT, FINDING THAT THE ACCUSED'S ARREST AND
SEARCH HAD BEEN MADE BY FEDERAL OFFICERS UNDER AN ILLEGAL WARRANT
ISSUED BY A UNITED STATES COMMISSIONER, GRANTED THE MOTION TO
SUPPRESS.  THE EFFECT OF THAT ORDER, UNDER THE EXPRESS PROVISIONS OF
THAT RULE, WAS THAT THE SUPPRESSED PROPERTY "SHALL NOT BE ADMISSIBLE IN
EVIDENCE AT ANY HEARING OR TRIAL."  CF. REINA V. UNITED STATES, 364
U.S. 507, 510-511.  DESPITE THAT ORDER, ONE OF THE ARRESTING FEDERAL
OFFICERS THEREAFTER CAUSED THE ACCUSED TO BE REARRESTED AND CHARGED, IN
A STATE COURT, WITH POSSESSION OF THE SAME MARIHUANA IN VIOLATION OF
THE STATE'S STATUTE, AND THREATENED TO MAKE THE STATE'S CASE BY HIS
TESTIMONY AND THE USE OF THE MARIHUANA THAT THE FEDERAL COURT HAD
EARLIER SUPPRESSED UNDER RULE 41(E).  THEREUPON, TO PREVENT THE
THWARTING OF THE FEDERAL SUPPRESSION ORDER, PETITIONER MOVED THE
FEDERAL COURT TO ENJOIN THAT CONDUCT.  THAT COURT DENIED THE MOTION AND
ITS JUDGMENT WAS AFFIRMED ON APPEAL.  ON CERTIORARI, THIS COURT, ACTING
UNDER ITS SUPERVISORY POWER OVER THE FEDERAL RULES, WHICH "EXTENDS TO
POLICING THEIR REQUIREMENTS AND MAKING CERTAIN THAT THEY ARE OBSERVED,"
350 U.S., AT 217, REVERSED THE JUDGMENT, BECAUSE "A FEDERAL AGENT HAD
VIOLATED AND WAS ABOUT FURTHER TO VIOLATE THE FEDERAL RULES GOVERNING
SEARCHES AND SEIZURES - RULES PRESCRIBED BY THIS COURT AND MADE
EFFECTIVE AFTER SUBMISSION TO THE CONGRESS.  SEE 327 U.S. 821 ET SEQ."
350 U.S., AT 217. 

HOW DIFFERENT ARE THE FACTS IN THE PRESENT CASE]  HERE THERE IS NO
ALLEGATION OR SHOWING THAT ANY PROCEEDINGS EVER WERE TAKEN AGAINST
PETITIONER UNDER ANY FEDERAL RULE OR IN ANY FEDERAL COURT.  THERE HAS
BEEN NO FINDING THAT PETITIONER'S ARREST WAS UNLAWFUL OR THAT THE
SEARCH OF HIS PERSON WHICH YIELDED THE NARCOTICS WAS NOT INCIDENT TO A
LAWFUL ARREST AND THEREFORE PROPER.  THE STATE COURT'S FINDING - THE
ONLY COURT INVOLVED AND THE ONLY FINDING ON THE MATTER - IS THE OTHER
WAY.  NOR IS THERE EVEN ANY ALLEGATION IN THE COMPLAINT THAT THE ARREST
WAS NOT MADE UPON PROBABLE CAUSE, ALTHOUGH IT IS ADMITTED THAT THE
SEARCH WAS MADE INCIDENT TO THE ARREST. 

IT IS CLEAR THAT THE COMPLAINT WAS PROPERLY DISMISSED.  AFFIRMED. 

FN1  IN THIS RESPECT, THE COMPLAINT ALLEGED ONLY THAT AT THE HEARING
ON THE MOTION TO SUPPRESS "THE FOLLOWING FACTS AND CIRCUMSTANCES WERE
DEVELOPED: 

"(A)  THE RESPONDENTS TESTIFIED THAT THEY HAD A CERTAIN BUILDING
UNDER SURVEILLANCE WHERE THEY HAD INFORMATION THAT NARCOTIC DRUGS WERE
BEING SOLD. 

"(B)  THAT THE RESPONDENTS SAW YOUR PETITIONER APPROACH THE SAID
BUILDING AND ENTER THE SAME; THAT A SHORT TIME LATER THEY OBSERVED YOUR
PETITIONER LEAVE THE BUILDING WHEREUPON THEY ARRESTED HIM. 

"(C)  THAT THEY COULD NOT STATE UNDER OATH WHETHER HE HAD THE
NARCOTIC DRUGS IN HIS POSSESSION BEFORE HE ENTERED THE BUILDING UNDER
SURVEILLANCE OR NOT; THAT WHEN THEY ARRESTED HIM, THEY DID NOT HAVE A
WARRANT FOR HIS ARREST." 

FN2  ARTICLE II, SEC. 6, OF THE ILLINOIS CONSTITUTION PROTECTS
AGAINST UNREASONABLE SEARCHES AND SEIZURES IN SUBSTANTIALLY THE SAME
LANGUAGE AS THE FOURTH AMENDMENT.  THAT STATE'S INTERPRETATION OF ITS
CONSTITUTIONAL PROVISION AND ITS EXCLUSIONARY RULE, SIMILAR TO THE ONE
FOLLOWED IN THE FEDERAL COURTS, MAKES THE ILLINOIS LAW ACCORD WITH THE
PRINCIPLES ESTABLISHED BY THIS COURT FOR THE FEDERAL SYSTEM.  SEE,
E.G., PEOPLE V. LA BOSTRIE, 14 ILL. 2D 617, 620-623, 153 N.E.2D 570,
572-574; PEOPLE V. TILLMAN, 1 ILL. 2D 525, 529-530, 116 N.E.2D 344, 346
347. 

FN3  "WHEN A STATE COURT AND A COURT OF THE UNITED STATES MAY EACH
TAKE JURISDICTION OF A MATTER, THE TRIBUNAL WHERE JURISDICTION FIRST
ATTACHES HOLDS IT, TO THE EXCLUSION OF THE OTHER, UNTIL ITS DUTY IS
FULLY PERFORMED AND THE JURISDICTION INVOLVED IS EXHAUSTED; AND THIS
RULE APPLIES ALIKE IN BOTH CIVIL AND CRIMINAL CASES."  HARKRADER V.
WADLEY, SUPRA, AT 164. 

FN4  "IT IS A DOCTRINE OF LAW TOO LONG ESTABLISHED TO REQUIRE A
CITATION OF AUTHORITIES, THAT  ...  WHERE THE JURISDICTION OF A COURT,
AND THE RIGHT OF A PLAINTIFF TO PROSECUTE HIS SUIT IN IT, HAVE ONCE
ATTACHED, THAT RIGHT CANNOT BE ARRESTED OR TAKEN AWAY BY PROCEEDINGS IN
ANOTHER COURT.  THESE RULES HAVE THEIR FOUNDATION, NOT MERELY IN
COMITY, BUT ON NECESSITY.  FOR IF ONE MAY ENJOIN, THE OTHER MAY RETORT
BY INJUNCTION, AND THUS THE PARTIES BE WITHOUT REMEDY; BEING LIABLE TO
A PROCESS FOR CONTEMPT IN ONE, IF THEY DARE TO PROCEED IN THE OTHER." 
PECK V. JENNESS, SUPRA, AT 624-625. 

MR. JUSTICE STEWART, CONCURRING. 

I COULD NOT BASE AFFIRMANCE OF THE JUDGMENT UPON THE GROUND THAT THE
PETITIONER'S MOTION WAS TECHNICALLY DEFICIENT IN FAILING TO RECITE THE
TALISMANIC PHRASE "WITHOUT PROBABLE CAUSE."  NOR DO I THINK THE
DISTRICT COURT LACKED POWER TO ISSUE THE REQUESTED INJUNCTION, EITHER
BY REASON OF 28 U.S.C. SEC. 2283 OR THE RULE FORMULATED IN HARKRADER V.
WADLEY, 172 U.S. 148, 164.  IT SEEMS TO ME THAT REA V. UNITED STATES,
350 U.S. 214, ESTABLISHED THAT DISTRICT COURTS DO HAVE SUCH POWER.* 

*THE DISSENTERS IN REA AGREED THAT THIS POWER EXISTS.  SEE 350 U.S.,
AT 219. 

BUT I JOIN IN AFFIRMING THE JUDGMENT.  THE PETITIONER HAS FAILED TO
STATE A CASE WARRANTING EQUITABLE RELIEF UNDER THE STANDARDS OF
STEFANELLI V. MINARD, 342 U.S. 117, 122, AND DOUGLAS V. CITY OF
JEANNETTE, 319 U.S. 157, 163.  AS THE COURT'S OPINION POINTS OUT, THE
FACTORS WHICH JUSTIFIED THE ISSUANCE OF AN INJUNCTION IN REA ARE NOT
PRESENT HERE.    MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND
MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

THE TRIAL JUDGE ON RESPONDENTS' MOTION (FN1) DISMISED AN "AMENDED
PETITION FOR DECLARATORY JUDGMENT" THAT MADE THE FOLLOWING ALLEGATIONS:
PETITIONER WAS ARRESTED BY TWO OF THE RESPONDENTS, AGENTS OF THE
FEDERAL BUREAU OF NARCOTICS, WHO ACTED WITHOUT A WARRANT.  HE WAS
SEARCHED BY THESE AGENTS AT THE TIME OF HIS ARREST AND NARCOTICS WERE
SEIZED FROM HIM.  THOUGH IMPRISONED, HE WAS NEITHER TAKEN BEFORE A
FEDERAL COMMISSIONER NOR CHARGED WITH A CRIME AGAINST THE UNITED
STATES.  INSTEAD, HE WAS INDICTED FOR THE POSSESSION OF THOSE SAME
NARCOTICS UNDER THE LAWS OF ILLINOIS.  HE UNSUCCESSFULLY ATTEMPTED TO
EXCLUDE THE USE OF THESE NARCOTICS AS EVIDENCE OR THE TESTIMONY OF THE
ARRESTING AGENTS BY A MOTION MADE IN THE STATE COURT WHERE "THE LAW OF
THE FORUM WAS APPLIED AND THE FEDERAL RULE OF CRIMINAL PROCEDURE WERE
NOT APPLIED."  PETITIONER BASED JURISDICTION OF THE FEDERAL COURT ON
"THE SUPERVISORY POWERS OF FEDERAL COURTS OVER FEDERAL LAW ENFORCEMENT
AGENCIES."  ALLEGING THAT "THE RESPONDENTS WILL BE CALLED TO TESTIFY IN
SUCH CASE THAT THE PETITIONER UNLAWFULLY HAD IN HIS POSSESSION THE
NARCOTIC DRUGS SEIZED BY THE RESPONDENTS," HE ASKED, FIRST, A
DECLARATORY JUDGMENT AS TO WHETHER THE FEDERAL AGENTS HAD ACTED
ILLEGALLY IN THE ARREST AND INCIDENTAL SEARCH OF PETITIONER AND,
SECOND, IN THE EVENT THAT THE SEARCH HAD BEEN ILLEGAL, THE IMPOUNDING
OF THE SEIZED NARCOTICS AND AN INJUNCTION AGAINST THE RESPONDENTS'
TESTIFYING "IN RESPECT TO THE NARCOTIC DRUGS SO SEIZED" IN THE STATE
PROCEEDINGS. 

THESE ALLEGATIONS, LIBERALLY CONSTRUED, ENTITLE PETITIONER TO A
HEARING, AND, IF THEY ARE SUPPORTED BY EVIDENCE, TO THE RELIEF HE
SEEKS.  IN REA V. UNITED STATES, 350 U.S. 214, WE HELD THAT AN
INJUNCTION WOULD ISSUE TO PREVENT THE USE BY FEDERAL AGENTS IN A STATE
PROCEEDING OF THE FRUITS OF AN ILLEGAL SEARCH.  "THE OBLIGATION OF THE
FEDERAL AGENT IS TO OBEY THE RULES OF CRIMINAL PROCEDURE.  THEY ARE
DRAWN FOR INNOCENT AND GUILTY ALIKE.  THEY PRESCRIBE STANDARDS FOR LAW
ENFORCEMENT.  THEY ARE DESIGNED TO PROTECT THE PRIVACY OF THE CITIZEN,
UNLESS THE STRICT STANDARDS SET FOR SEARCHES AND SEIZURES ARE
SATISFIED.  THAT POLICY IS DEFEATED IF THE FEDERAL AGENT CAN FLOUT THEM
AND USE THE FRUITS OF HIS UNLAWFUL ACT EITHER IN FEDERAL OR STATE
PROCEEDINGS."  ID., 217-218. 

UNDER RULE 41(E), FEDERAL RULES OF CRIMINAL PROCEDURE, THE FEDERAL
COURT IS INSTRUCTED TO HEAR AND DETERMINE A MOTION TO SUPPRESS MADE BY
"A PERSON AGGRIEVED BY AN UNLAWFUL SEARCH AND SEIZURE WHERE THE
PROPERTY WAS ILLEGALLY SEIZED WITHOUT WARRANT."  (FN2)  IMPLICIT IN
THAT DUTY IS THE JUDICIAL ENFORCEMENT OF THE PROVISIONS OF THE FOURTH
AMENDMENT AND ACTS OF CONGRESS WHICH LIMIT THE POWER OF ARREST AND
SEARCH.  JUDICIAL ENFORCEMENT IS NO LESS TO BE INVOKED AFTER THE
FEDERAL AGENTS HAVE ACTED THAN IT IS BEFORE THEY HAVE ACTED, I.E., WHEN
THEY APPLY TO THE COURTS FOR A WARRANT.  THAT, AS I UNDERSTAND, IS THE
TEACHING OF THE REA CASE. 

IT IS SAID THAT PETITIONER HAS FAILED TO ALLEGE THAT THE ARREST IN
QUESTION WAS MADE WITHOUT PROBABLE CAUSE, AND THUS ILLEGAL UNDER
FEDERAL LAW.  SEE 26 U.S.C. SEC. 7607(2).  IT IS SAID THAT HE HAS
FAILED TO POINT OUT IN WHAT WAY HIS "LEGAL REMEDY" (I.E., THE HEARING
ON THE MOTION TO EXCLUDE IN THE STATE COURT) WAS INADEQUATE.  IT IS
SAID THAT A FEDERAL COURT, IN THE EXERCISE OF DISCRETION TO GRANT OR TO
DENY DECLARATORY RELIEF, SHOULD REFUSE TO ACT IN THESE CIRCUMSTANCES,
ESPECIALLY SINCE THE GRANT OF IT WOULD INTERFERE WITH A STATE
PROSECUTION.  I BELIEVE THAT NONE OF THESE OBJECTIONS IS WELL TAKEN. 

IF IT SHOULD APPEAR AT A HEARING THAT THE ARREST AND INCIDENTAL
SEARCH WERE LEGAL UNDER FEDERAL LAW, THEN PETITIONER WOULD HAVE NO
CASE.  BUT SURELY HIS FAILURE TO MAKE THE MAGIC ALLEGATION THAT THE
ARREST WAS "WITHOUT PROBABLE CAUSE" SHOULD NOT CAUSE HIM TO BE
SUMMARILY CUT OFF.  (FN3)  AT MOST, THE DEFECT COMPLAINED OF WOULD
JUSTIFY HIS BEING REQUIRED TO AMEND HIS PLEADING. 

PETITIONER'S FAILURE TO ALLEGE THE INADEQUACY OF HIS "LEGAL REMEDY"
MAY BE AS EASILY DISPOSED OF. HE IS INVOKING, IN THIS PROCEEDING, THE
"SUPERVISORY POWERS" OF THE FEDERAL COURTS OVER THE ADMINISTRATION OF
FEDERAL LAW ENFORCEMENT.  THAT POWER IS LODGED IN THE FEDERAL COURTS. 
CONGRESS COULD HAVE ENTRUSTED THE ENFORCEMENT OF ALL FEDERAL LAWS TO
STATE TRIBUNALS, AS HAS INDIA.  BUT THE FIRST CONGRESS MADE THE
DECISION TO CREATE A FEDERAL JUDICIAL SYSTEM, COMPLETE UNTO ITSELF. 
SOME FEDERAL LAWS ARE ENFORCEABLE IN STATE TRIBUNALS.  SEE, E.G., TESTA
V. KATT, 330 U.S. 386.  BUT THE FEDERAL RULES OF CRIMINAL PROCEDURE ARE
NOT AMONG THEM.  SINCE THE FEDERAL AGENTS HAVE CHOSEN TO AVOID THE
FEDERAL COURTS, THE ISSUE AS TO COMPLIANCE WITH THE FEDERAL RULES
CANNOT BE LITIGATED IN ANY WAY OTHER THAN BY THIS PROCEEDING.  IN THE
STATE TRIAL THE ISSUE WILL NOT BE WHETHER THE FEDERAL AGENTS HAVE ACTED
WITHIN THE LIMITS OF THEIR FEDERAL AUTHORITY, BUT WHETHER, UNDER THE
STATE CONSTITUTION, THE SEARCH WAS A REASONABLE ONE.  (FN4)  UNDER THE
SUPREMACY CLAUSE STATE LAW MUST GIVE WAY WHERE, FOR EXAMPLE, A STATE
PROCEDURE VIOLATES THE FEDERAL CONSTITUTION.  YET UNDER THE DECISION OF
THIS COURT IN WOLF V. COLORADO, 338 U.S. 25, NOT EVEN THE DUTY OF
EXCLUDING EVIDENCE, BECAUSE IT WAS SEIZED IN VIOLATION OF THE COMMAND
OF THE FOURTH AMENDMENT, IS IMPOSED ON STATE COURTS AS A REQUIREMENT OF
FEDERAL LAW.  THE PROPER FORUM - INDEED THE ONLY ONE AVAILABLE FOR
LITIGATION OF COMPLIANCE WITH THAT REQUIREMENT - IS THE FEDERAL COURT. 

WE SHOULD ALSO OVERRULE THE OBJECTION (FN5) BASED ON THE POLICY OF 28
U.S.C. SEC. 2283 WHICH RESTRAINS A FEDERAL COURT FROM INTERMEDDLING
WITH STATE PROCEEDINGS, ESPECIALLY STATE CRIMINAL PROCEEDINGS.  SECTION
2283 (FN6) PROHIBITS, IN CERTAIN CIRCUMSTANCES, THE GRANT BY A FEDERAL
COURT OF "AN INJUNCTION TO STAY PROCEEDINGS IN A STATE COURT."  WHAT WE
SAID ABOUT THE RELIEF SOUGHT IN REA V. UNITED STATES, SUPRA, IS
APPLICABLE HERE: 

"THE DISTRICT COURT IS NOT ASKED TO ENJOIN STATE OFFICIALS NOR IN ANY
WAY TO INTERFERE WITH STATE AGENCIES IN ENFORCEMENT OF STATE LAW  ...
.  NO INJUNCTION IS SOUGHT AGAINST A STATE OFFICIAL.  THE ONLY REMEDY
ASKED IS AGAINST A FEDERAL AGENT WHO, WE ARE TOLD, PLANS TO USE HIS
ILLEGAL SEARCH AND SEIZURE AS THE BASIS OF TESTIMONY IN THE STATE
COURT."  ID., 216-217. 

IN THIS CASE, AS IN REA, THE INTERFERENCE, IF ANY, IS AN INDIRECT ONE
AND ONLY INCIDENTAL TO PLACING FEDERAL OFFICERS UNDER FEDERAL STANDARDS
OF BEHAVIOR.  IF THE CONSIDERATIONS WHICH LED TO DECISIONS LIKE
STEFANELLI V. MINARD, 342 U.S. 117, WERE NOT CONTROLLING IN REA V.
UNITED STATES, SUPRA, THEY SHOULD NOT BE CONTROLLING IN THIS CASE. 

THE RATIONALE OF REA V. UNITED STATES, SUPRA, WAS THAT THE FEDERAL
COURTS HAD A SPECIFIC DUTY OF SUPERVISING COMPLIANCE OF FEDERAL LAW
ENFORCEMENT OFFICERS WITH THE FEDERAL RULES OF CRIMINAL PROCEDURE.  "A
FEDERAL AGENT HAS VIOLATED THE FEDERAL RULES GOVERNING SEARCHES AND
SEIZURES - RULES PRESCRIBED BY THIS COURT AND MADE EFFECTIVE AFTER
SUBMISSION TO THE CONGRESS.  SEE 327 U.S. 821 ET SEQ.  THE POWER OF THE
FEDERAL COURTS EXTENDS TO POLICING THOSE REQUIREMENTS AND MAKING
CERTAIN THAT THEY ARE OBSERVED."  ID., 217.  THE REA CASE IS NOW
DISTINGUISHED BECAUSE IN THAT CASE OTHER CONTACTS WITH THE FEDERAL
COURTS EXISTED BEYOND THE BARE FACT THAT FEDERAL OFFICERS WERE THE
ACTORS IN THE ILLEGAL SEARCH.  THE ADDITIONAL CONTACTS IN THE REA CASE
WERE THREE:  (1) THE SEARCH WAS MADE UNDER A PURPORTED WARRANT OF THE
FEDERAL COURTS.  (2) AN INDICTMENT BASED ON THE ACQUISITION OF THE
SEIZED NARCOTICS WAS FILED IN THE FEDERAL COURT, ALTHOUGH SUBSEQUENTLY
DISMISSED.  (3) A MOTION TO SUPPRESS WAS MADE IN THE FEDERAL COURT,
WHILE THE INDICTMENT WAS PENDING, AND WAS GRANTED. 

THOSE FACTUAL DIFFERENCES SHOULD NOT LEAD TO A DIFFERENT RESULT IN
THIS CASE.  THE DECISIVE FACTOR, INDEED THE ONLY RELEVANT ONE IN THIS
CASE, AS IN REA, IS THAT FEDERAL LAW ENFORCEMENT OFFICERS ARE THE
ACTORS IN AN ILLEGAL SEARCH AND SEIZURE. 

IF THE OFFICERS IN REA HAD ACTED WITHOUT ANY WARRANT, THE RESULT
WOULD NOT HAVE BEEN DIFFERENT.  THE VICTIM OF THE SEARCH COULD
CERTAINLY HAVE OBTAINED AN ORDER OF SUPPRESSION AGAINST THE USE OF THE
EVIDENCE IN THE FEDERAL COURTS.  RULE 41(E) SPECIFICALLY SO PROVIDES. 
THE MOTION TO SUPPRESS MIGHT HAVE BEEN MADE BEFORE AN INDICTMENT WAS
FILED.  AGAIN, THE VICTIM WOULD BE ENTITLED TO AN ORDER REGARDING THE
USE OF THE EVIDENCE IN FEDERAL COURTS.  SEE GO-BART CO. V. UNITED
STATES, 282 U.S. 344, 358.  THE FEDERAL AGENTS WOULD NOT BE "FLOUTING"
THE RULES ANY THE LESS IF, IN EITHER OF THESE TWO SITUATIONS, THEY HAD,
AFTER THE ISSUE OF THE ORDER UNDER RULE 41(E), PREPARED TO USE THE
SUPPRESSED EVIDENCE IN A STATE COURT. 

TO BE SURE, NO FEDERAL INDICTMENT WAS EVER FILED IN THIS CASE; AND
THE STATE PROCEEDING WAS COMMENCED PRIOR TO THE ISSUE OF ANY ORDER BY A
FEDERAL COURT ON THE LEGALITY OF THE SEARCH AND SEIZURE MADE BY THE
FEDERAL LAW OFFICERS.  THAT FACT AFFORDS NO REASON WHY THE VICTIM OF
LAWLESS FEDERAL POLICE MAY NOT APPLY TO A FEDERAL COURT FOR RELIEF. 
WHEN THE COURT RELIES ON THIS CIRCUMSTANCE IT REPUDIATES THE VERY BASIS
OF THE REA DECISION, VIZ.: THAT THE SUBSTANTIVE COMMAND OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE HAS BEEN "FLOUTED" BY FEDERAL OFFICERS. 

UNDER THE FOURTH AMENDMENT, THE JUDICIARY HAS A SPECIAL DUTY OF
PROTECTING THE RIGHT OF THE PEOPLE TO BE LET ALONE, EXCEPT AS WARRANTS
ISSUE ON A SHOWING OF PROBABLE CAUSE.  THIS SPECIAL RELATION OF FEDERAL
COURTS TO THE CONTROL OF FEDERAL OFFICIALS WHO LAWLESSLY INVADE THE
PRIVACY OF INDIVIDUAL CITIZENS REACHES FAR BACK INTO HISTORY.  IT HAD,
AT FIRST, AN OMINOUS NOTE, AS THE COURTS THEMSELVES WERE THE INSTRUMENT
OF OPPRESSION.  IT WAS BEFORE A COLONIAL COURT THAT JAMES OTIS, JR.,
MADE HIS PLEA AGAINST THE INFAMOUS "WRITS OF ASSISTANCE."  (FN7)  SINCE
THEN THE COURTS HAVE PLAYED AN HONORABLE ROLE IN THE PROTECTION OF
PRIVACY.  WARRANTS, WHICH WERE AT THE START ONLY A FORM OF JUDICIAL
PROTECTION EXTENDED TO OFFICIALS, HAVE BECOME THE MEANS FOR PROTECTING
THE INDIVIDUAL.  A JUDICIAL OFFICER HAS BEEN INTERPOSED BETWEEN THE
SUSPICIOUS OFFICIAL AND THE CITIZEN.  (FN8)  THE ROLE OF THE COURTS HAS
BEEN ACTIVE.  IN WEEKS V. UNITED STATES, 232 U.S. 383, 391-392, THIS
COURT SAID: 

"THE EFFECT OF THE FOURTH AMENDMENT IS TO PUT THE COURTS OF THE
UNITED STATES AND FEDERAL OFFICIALS, IN THE EXERCISE OF THEIR POWER AND
AUTHORITY, UNDER LIMITATIONS AND RESTRAINTS AS TO THE EXERCISE OF SUCH
POWER AND AUTHORITY, AND TO FOREVER SECURE THE PEOPLE, THEIR PERSONS,
HOUSES, PAPERS AND EFFECTS AGAINST ALL UNREASONABLE SEARCHES AND
SEIZURES UNDER THE GUISE OF LAW.  THIS PROTECTION REACHES ALL ALIKE,
WHETHER ACCUSED OF CRIME OR NOT, AND THE DUTY OF GIVING TO IT FORCE AND
EFFECT IS OBLIGATORY UPON ALL ENTRUSTED UNDER OUR FEDERAL SYSTEM WITH
THE ENFORCEMENT OF THE LAWS." 

THAT CASE FORGED THE DOCTRINE, NOW FIRMLY ENTRENCHED, THAT THE
FEDERAL COURTS WILL NOT ADMIT ILLEGALLY SEIZED PROPERTY AS EVIDENCE. 
(FN9)  IT IS THIS DOCTRINE WHICH WAS THE CORE OF THE SUBSTANTIVE
COMMAND WHOSE PROCEDURAL OUTLINES ARE REFLECTED IN RULE 41(E).  IT IS
THIS DOCTRINE THAT WE UNSYMPATHETICALLY REJECT TODAY. 

OUR CASES REFLECT THE BELIEF THAT FEDERAL JUDGES HAVE A DISTINCT
MISSION TO PERFORM IN ACTIVELY PROTECTING THE RIGHT OF PRIVACY OF THE
INDIVIDUAL.  WE SAID IN JOHNSON V. UNITED STATES, 333 U.S. 10, 14: 

"ANY ASSUMPTION THAT EVIDENCE SUFFICIENT TO SUPPORT A MAGISTRATE'S
DISINTERESTED DETERMINATION TO ISSUE A SEARCH WARRANT WILL JUSTIFY THE
OFFICERS IN MAKING A SEARCH WITHOUT A WARRANT WOULD REDUCE THE
AMENDMENT TO A NULLITY AND LEAVE THE PEOPLE'S HOMES SECURE ONLY IN THE
DISCRETION OF POLICE OFFICERS." 

THIS PARTICULAR VIEW REFLECTED THE DEEP-LYING ASSUMPTION THAT THE
COMMAND OF THE FOURTH AMENDMENT IMPLIES CONTINUOUS SUPERVISION BY THE
JUDICIARY OVER LAW ENFORCEMENT OFFICERS, QUITE DIFFERENT FROM THE
PASSIVE ROLE WHICH COURTS PLAY IN SOME SPHERES.  THE RULE THAT A
SEARCH, OTHERWISE LEGAL, MAY BE ILLEGAL FOR FAILURE TO APPLY TO A
MAGISTRATE FOR A WARRANT WAS EXPRESSED IN TRUPIANO V. UNITED STATES,
334 U.S. 699, AND MCDONALD V. UNITED STATES, 335 U.S. 451.  WE STATED
THAT "SEARCH WARRANTS ARE TO BE OBTAINED AND USED WHEREVER REASONABLY
PRACTICABLE."  TRUPIANO V. UNITED STATES, SUPRA, 709.  WE HAVE
OCCASIONALLY RETREATED, AS UNITED STATES V. RABINOWITZ, 339 U.S. 56;
FRANK V. MARYLAND, 359 U.S. 360; AND ABEL V. UNITED STATES, 362 U.S.
217, SHOW.  BUT WE RETURNED TO THE BASIC PHILOSOPHY OF THE FOURTH
AMENDMENT IN REA V. UNITED STATES, SUPRA. WHEN I WROTE FOR THE COURT IN
THAT CASE SAYING THAT "THE OBLIGATION OF THE FEDERAL AGENT IS TO OBEY
THE RULES," I THOUGHT WE MEANT OBEDIENCE TO THE SUBSTANTIVE LAW FOR
WHICH THOSE RULES OFFER A PROCEDURAL MATRIX.  (FN10)  AT 217.  IT IS
DIFFICULT FOR ME TO BELIEVE THAT THAT PROTECTION IS LIMITED TO THOSE
SITUATIONS WHERE THE FEDERAL OFFICERS INVOKE THE "PROCESS" OF THE
FEDERAL COURT.  RULE 41(E) PROVIDES A REMEDY BY WAY OF SUPPRESSION
WHERE "THE PROPERTY WAS ILLEGALLY SEIZED WITHOUT WARRANT," AS IT WAS IN
THIS CASE, IF THE ALLEGATIONS ARE SUPPORTED BY EVIDENCE. 

WHEN WE FORSAKE REA V. UNITED STATES AND TELL THE FEDERAL COURTS TO
KEEP HANDS OFF, WE WINK AT A NEW FORM OF OFFICIAL LAWLESSNESS.  FEDERAL
OFFICIALS ARE NOW FREE TO VIOLATE THE FEDERAL RULES THAT WERE DESIGNED
TO PROTECT THE INDIVIDUAL'S PRIVACY, PROVIDED THEY TURN THE EVIDENCE
UNLAWFULLY OBTAINED OVER TO THE STATES FOR PROSECUTION.  THIS IS AN
EVASION OF FEDERAL LAW THAT HAS CONSEQUENCES SO SERIOUS THAT I MUST
DISSENT.  THIS CASE MAY BE INCONSEQUENTIAL IN THE TIDES OF LEGAL
HISTORY.  BUT THE RULE WE FASHION IS AN OPEN INVITATION TO FEDERAL
OFFICIALS TO "FLOUT" FEDERAL LAW, TO MAKE SUCH SEARCHES AS THEY DESIRE,
TO FORGET ABOUT THE SEARCH WARRANTS REQUIRED BY THE FOURTH AMENDMENT,
TO BREAK INTO HOMES WILLY-NILLY, AND THEN TO REPAIR TO STATE COURTS. 
THERE THE FEDERAL RULES DO NOT APPLY; THERE THE EXCLUSIONARY RULE OF
WEEKS V. UNITED STATES, SUPRA, DOES NOT APPLY.  SEE WOLF V. COLORADO,
SUPRA.  THERE EVIDENCE, UNLAWFULLY OBTAINED BY THE STANDARDS THAT
GOVERN FEDERAL OFFICIALS, MAY BE USED AGAINST THE VICTIM.  A FEW STATES
HAVE EXCLUSIONARY RULES AS STRICT AS THOSE COMMANDED BY THE FOURTH
AMENDMENT.  (FN11)  MANY PERMIT THE USE IN STATE PROSECUTIONS OF
EVIDENCE WHICH WOULD BE BARRED IF TENDERED IN FEDERAL PROSECUTIONS. 
(FN12)  THE TENDER REGARD WHICH IS EXPRESSED FOR FEDERAL-STATE
RELATIONS WILL IN ULTIMATE EFFECT BE A TENDER REGARD FOR FEDERAL
OFFICIALS WHO FLOUT FEDERAL LAW.  TODAY WE LOWER FEDERAL LAW
ENFORCEMENT STANDARDS BY GIVING FEDERAL AGENTS CARTE BLANCHE TO BREAK
DOWN DOORS, RANSACK HOMES, SEARCH AND SEIZE TO THEIR HEART'S CONTENT -
SO LONG AS THEY STAY AWAY FROM FEDERAL COURTS AND DO NOT TRY TO USE THE
EVIDENCE THERE.  THIS IS AN INVITATION TO LAWLESSNESS WHICH I CANNOT
JOIN. 

FN1  THE MOTION TO DISMISS SPECIFIED THREE GROUNDS.  OF THEM, ONLY
TWO ARE BEFORE THIS COURT, I.E., FAILURE TO STATE A CAUSE OF ACTION AND
LACK OF JURISDICTION OVER THE SUBJECT MATTER. 

FN2  RULE 41(E) READS:  "A PERSON AGGRIEVED BY AN UNLAWFUL SEARCH AND
SEIZURE MAY MOVE THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE
PROPERTY WAS SEIZED FOR THE RETURN OF THE PROPERTY AND TO SUPPRESS FOR
THE USE AS EVIDENCE ANYTHING SO OBTAINED ON THE GROUND THAT (1) THE
PROPERTY WAS ILLEGALLY SEIZED WITHOUT WARRANT, OR (2) THE WARRANT IS
INSUFFICIENT ON ITS FACE, OR (3) THE PROPERTY SEIZED IS NOT THAT
DESCRIBED IN THE WARRANT, OR (4) THERE WAS NOT PROBABLE CAUSE FOR
BELIEVING THE EXISTENCE OF THE GROUNDS ON WHICH THE WARRANT WAS ISSUED,
OR (5) THE WARRANT WAS ILLEGALLY EXECUTED.  THE JUDGE SHALL RECEIVE
EVIDENCE ON ANY ISSUE OF FACT NECESSSARY TO THE DECISION OF THE
MOTION.  IF THE MOTION IS GRANTED THE PROPERTY SHALL BE RESTORED UNLESS
OTHERWISE SUBJECT TO LAWFUL DETENTION AND IT SHALL NOT BE ADMISSIBLE IN
EVIDENCE AT ANY HEARING OR TRIAL.  THE MOTION TO SUPPRESS EVIDENCE MAY
ALSO BE MADE IN THE DISTRICT WHERE THE TRIAL IS TO BE HAD.  THE MOTION
SHALL BE MADE BEFORE TRIAL OR HEARING UNLESS OPPORTUNITY THEREFOR DID
NOT EXIST OR THE DEFENDANT WAS NOT AWARE OF THE GROUNDS FOR THE MOTION,
BUT THE COURT IN ITS DISCRETION MAY ENTERTAIN THE MOTION AT THE TRIAL
OR HEARING." 

FN3  THE COURT OF APPEALS DID NOT PROCEED ON ANY SUCH NARROW
GROUNDS.  IT SPEAKS OF THE "ALLEGEDLY ILLEGAL ARREST AND SEARCH," AND
PLACES ITS DECISION ON THE "DECISIVE FACTUAL DIFFERENCES WHICH
DISTINGUISH THE REA CASE FROM THE INSTANT PROCEEDING."  275 F.2D 932,
933. 

FN4  SINCE PETITIONER HAS ALLEGED THAT THE ILLINOIS COURT DID NOT
APPLY THE STANDARDS IMPOSED BY THE FEDERAL COURTS, WE MAY LEAVE ASIDE
QUESTIONS WHICH MIGHT BE RAISED BY THE STATE COURT INCORPORATION OF A
FEDERAL STANDARD TO GUIDE THEIR DETERMINATIONS UNDER STATE LAW.  CF.
STANDARD OIL CO. OF CALIF. V. JOHNSON, 316 U.S. 481; PEOPLE V. GROD,
385 ILL.  584, 586, 53 N.E.2D 591, 593 (THE STATE AND FEDERAL
CONSTITUTIONAL PROVISIONS ARE SAID TO BE "IN EFFECT THE SAME"). 

FN5  RESPONDENTS STRESS THE FACT THAT PETITIONER'S PRAYER ASKS FOR A
"DECLARATORY JUDGMENT" AND QUOTE LANGUAGE FROM DECISIONS OF THIS COURT
THAT SPEAK OF A JUDICIAL DISCRETION TO DENY SUCH RELIEF.   SEE, E.G.,
AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240-241; BRILLHART V.
EXCESS INS. CO., 316 U.S. 491, 494-495; PUBLIC SERVICE COMM'N V. WYCOFF
CO., 344 U.S. 237, 241-245.  SUCH CASES ARE NOT APPLICABLE.  THE
JUDICIAL DISCRETION TO DENY DECLARATORY RELIEF IS IN THE PENUMBRA OF
THE CONSTITUTIONAL REQUIREMENT OF "CASE OR CONTROVERSY."  THERE IS NO
SUCH ISSUE HERE.  DISCRETION, IF IT EXISTS AT ALL, MUST STEM FROM THE
GENERAL EQUITY NOTIONS BASED ON THE AVAILABILITY OF OTHER REMEDIES. 
INDEED, PETITIONER'S REQUEST FOR DECLARATORY RELIEF IS NOT MORE THAN AN
INARTISTIC DEMAND THAT THE FEDERAL JUDGE ENTERTAIN THE MOTION AND
"RECEIVE EVIDENCE ON ANY ISSUE OF FACT NECESSARY TO THE DECISION OF THE
MOTION."  RULE 41(E).  THAT IT IS DENOMINATED A REQUEST FOR DECLARATORY
JUDGMENT IS MERE SURPLUSAGE. 

FN6  SEE, E.G., HARKRADER V. WADLEY, 172 U.S. 148; EX PARTE YOUNG,
209 U.S. 123. 

FN7  SEE BOYD V. UNITED STATES, 116 U.S. 616, 624-625; HARRIS V.
UNITED STATES, 331 U.S. 145, 155, 157-159 (DISSENTING OPINION); FRANK
V. MARYLAND, 359 U.S. 360, 374, 376-381 (DISSENTING OPINION). 

FN8  THIS SAME EVOLUTION WHEREBY THE JUDICIARY BECAME THE PROTECTORS
OF PRIVACY TOOK PLACE IN ENGLAND.  "FOR THESE WARRANTS ARE JUDICIAL
ACTS, AND MUST BE GRANTED UPON EXAMINATION OF THE FACT."  2 HALE,
HISTORY OF THE PLEAS OF THE CROWN (1ST AM. ED. 1847), 150. 

FN9  SEE, E.G., SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S.
385; GOULED V. UNITED STATES, 255 U.S. 298; GO-BART CO. V. UNITED
STATES, 282 U.S. 344; TAYLOR V. UNITED STATES, 286 U.S. 1; HARRIS V.
UNITED STATES, 331 U.S. 145; JOHNSON V. UNITED STATES, 333 U.S. 10;
BRINEGAR V. UNITED STATES, 338 U.S. 160; MILLER V. UNITED STATES, 357
U.S. 301; DRAPER V. UNITED STATES, 358 U.S. 307; HENRY V. UNITED
STATES, 361 U.S. 98; ELKINS V. UNITED STATES, 364 U.S. 206; RIOS V.
UNITED STATES, 364 U.S. 253. 

FN10  IT IS SAID THAT THE PRESENT PROCEEDING IS NOT ONE UNDER RULE
41(E), SINCE THERE ARE NO FEDERAL "PROCEEDINGS" WITHIN THE MEANING OF
THE ENABLING STATUTE.  18 U.S.C. SEC. 3771.  BUT THE POLICY REMAINS THE
SAME, AND THE ANALOGY OF AN INDEPENDENT SUIT BASED ON THE SAME RIGHTS
IS CLEAR.  NOR CAN IT BE SAID THAT 21 U.S.C. SEC. 198(A) CREATES ANY
EXEMPTION FOR FEDERAL OFFICERS FROM THE STANDARDS OTHERWISE IMPOSED ON
THEM.  COOPERATE THEY MAY, BUT THEY MAY NOT BREAK THE LAW TO DO SO. 

FN11  SEE, E.G., TEXAS CODE OF CRIM. PROC., ART. 727A, AS AMENDED BY
ACTS 1953, 53D LEG., P. 669, C. 253, SEC. 1; PEOPLE V. CAHAN, 44 CAL.
2D 434, 282 P.2D 905. 

FN12  SEE, E.G., PEOPLE V. GONZALES, 356 MICH. 247, 97 N.W.2D 16. 
..END :






















WILKINSON V. UNITED STATES 365 U.S. 399 


NO. 37.  ARGUED NOVEMBER 17, 1960 - DECIDED FEBRUARY 27, 1961 - 272 F.2D
783, AFFIRMED. 


SUMMONED TO TESTIFY BEFORE A SUBCOMMITTEE OF THE HOUSE OF
REPRESENTATIVES COMMITTEE ON UN-AMERICAN ACTIVITIES, WHICH WAS
INVESTIGATING COMMUNIST INFILTRATION INTO BASIC INDUSTRIES IN THE
SOUTH, PETITIONER REFUSED TO ANSWER A QUESTION AS TO WHETHER HE WAS
THEN A MEMBER OF THE COMMUNIST PARTY.  HE DID NOT CLAIM HIS PRIVILEGE
AGAINST SELF-INCRIMINATION BUT CONTENDED THAT THE SUBCOMMITTEE WAS
WITHOUT LAWFUL AUTHORITY TO INTERROGATE HIM AND THAT ITS QUESTIONING
VIOLATED HIS RIGHTS UNDER THE FIRST AMENDMENT.  FOR REFUSING TO ANSWER,
HE WAS CONVICTED OF A VIOLATION OF 2 U.S.C. SEC. 192, WHICH MAKES IT A
MISDEMEANOR FOR ANY PERSON SUMMONED AS A WITNESS BY EITHER HOUSE OF
CONGRESS OR A COMMITTEE THEREOF TO REFUSE TO ANSWER ANY QUESTION
PERTINENT TO THE QUESTION UNDER INQUIRY.  HELD: PETITIONER'S CONVICTION
IS SUSTAINED.  PP. 400-415. 

1.  THE COMMITTEE'S INVESTIGATION OF COMMUNIST INFILTRATION INTO
BASIC INDUSTRIES IN THE SOUTH AND COMMUNIST PROPAGANDA ACTIVITIES IN
THE SOUTH WAS CLEARLY AUTHORIZED BY CONGRESS.  BARENBLATT V. UNITED
STATES, 360 U.S. 109.  PP. 407-409. 

2.  ON THIS RECORD, IT CANNOT BE SAID THAT, IN QUESTIONING
PETITIONER, THE SUBCOMMITTEE WAS NOT PURSUING A VALID LEGISLATIVE
PURPOSE.  PP. 409-413. 

(A)  PETITIONER'S CONTENTION THAT THE SUBCOMMITTEE'S SOLE REASON FOR
INTERROGATING HIM WAS TO SUBJECT HIM TO PUBLIC CENSURE, HARASSMENT AND
EXPOSURE BECAUSE OF HIS OPPOSITION TO THE EXISTENCE OF THE UN-AMERICAN
ACTIVITIES COMMITTEE IS NOT SUPPORTED BY THE RECORD.  PP. 411-412. 

(B)  IT IS NOT FOR THIS COURT TO SPECULATE AS TO THE MOTIVES THAT MAY
HAVE PROMPTED THE DECISION OF INDIVIDUAL MEMBERS OF THE SUBCOMMITTEE TO
SUMMON PETITIONER, SINCE THEIR MOTIVES ALONE WOULD NOT VITIATE AN
INVESTIGATION THAT WAS SERVING A LEGISLATIVE PURPOSE.  P. 412. 

(C)  PETITIONER WAS NOT SUMMONED TO APPEAR AS A RESULT OF AN
INDISCRIMINATE DRAGNET PROCEDURE, LACKING IN PROBABLE CAUSE FOR BELIEF
THAT HE POSSESSED INFORMATION WHICH MIGHT BE HELPFUL TO THE
SUBCOMMITTEE, SINCE THE SUBCOMMITTEE HAD REASON TO BELIEVE WHEN IT
SUMMONED HIM THAT HE WAS AN ACTIVE COMMUNIST LEADER ENGAGED PRIMARILY
IN PROPAGANDA ACTIVITIES.  PP. 412-413. 

3.  THE QUESTION WHETHER PETITIONER WAS THEN A MEMBER OF THE
COMMUNIST PARTY WAS PERTINENT TO A SUBJECT UNDER INQUIRY.  P. 413. 

4.  PETITIONER WAS CLEARLY APPRISED OF THE PERTINENCY OF THE QUESTION
WHEN HE WAS DIRECTED TO ANSWER IT.  P. 413. 

5.  THE SUBCOMMITTEE'S INTERROGATION OF PETITIONER DID NOT VIOLATE
HIS RIGHTS UNDER THE FIRST AMENDMENT.  BARENBLATT V. UNITED STATES, 360
U.S. 109.  PP. 413-415. 

(A)  IT WAS NOT UNLAWFUL FOR THE COMMITTEE TO INVESTIGATE
PETITIONER'S CONDUCT, EVEN THOUGH HE MAY HAVE BEEN ENGAGED, AT THE
MOMENT, IN PUBLIC CRITICISM OF THE COMMITTEE AND ATTEMPTING TO
INFLUENCE PUBLIC OPINION IN FAVOR OF ABOLISHING IT.  P. 414. 

(B)  THE SUBCOMMITTEE'S LEGITIMATE LEGISLATIVE INTEREST WAS NOT THE
ACTIVITY IN WHICH PETITIONER MIGHT HAVE BEEN ENGAGED AT THE TIME, BUT
IN THE MANIPULATION AND INFILTRATION OF ACTIVITIES AND ORGANIZATIONS BY
PERSONS ADVOCATING THE OVERTHROW OF THE GOVERNMENT.  PP. 414-415. 

WILKINSON V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED FOR HAVING UNLAWFULLY REFUSED TO ANSWER
A QUESTION PERTINENT TO A MATTER UNDER INQUIRY BEFORE A SUBCOMMITTEE OF
THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES AT A HEARING IN ATLANTA,
GEORGIA, ON JULY 30, 1958.  (FN1)  HIS CONVICTION WAS AFFIRMED BY THE
COURT OF APPEALS, WHICH HELD THAT OUR DECISION IN BARENBLATT V. UNITED
STATES, 360 U.S. 109, WAS "CONTROLLING."  272 F.2D 783.  WE GRANTED
CERTIORARI, 362 U.S. 926, TO CONSIDER THE PETITIONER'S CLAIM THAT THE
COURT OF APPEALS HAD MISCONCEIVED THE MEANING OF THE BARENBLATT
DECISION.  FOR THE REASONS THAT FOLLOW, WE ARE OF THE VIEW THAT THE
COURT OF APPEALS WAS CORRECT, AND THAT ITS JUDGMENT MUST BE AFFIRMED. 

                       I. 

THE FOLLOWING CIRCUMSTANCES WERE ESTABLISHED BY UNCONTROVERTED
EVIDENCE AT THE PETITIONER'S TRIAL:

THE COMMITTEE ON UN-AMERICAN ACTIVITIES IS A STANDING COMMITTEE OF
THE HOUSE OF REPRESENTATIVES, ELECTED AT THE COMMENCEMENT OF EACH
CONGRESS.  (FN2)  THE COMMITTEE, OR ANY SUBCOMMITTEE THEREOF, IS
AUTHORIZED TO INVESTIGATE "(I) THE EXTENT, CHARACTER, AND OBJECTS OF UN
AMERICAN PROPAGANDA ACTIVITIES IN THE UNITED STATES, (II) THE DIFFUSION
WITHIN THE UNITED STATES OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT
IS INSTIGATED FROM FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN AND
ATTACKS THE PRINCIPLE OF THE FORM OF GOVERNMENT AS GUARANTEED BY OUR
CONSTITUTION, AND (III) ALL OTHER QUESTIONS IN RELATION THERETO THAT
WOULD AID CONGRESS IN ANY NECESSARY REMEDIAL LEGISLATION."  (FN3)

IN THE SPRING OF 1958 THE COMMITTEE PASSED A RESOLUTION PROVIDING FOR
A SUBCOMMITTEE HEARING TO BE HELD IN ATLANTA, GEORGIA, "RELATING TO THE
FOLLOWING SUBJECTS AND HAVING THE LEGISLATIVE PURPOSES INDICATED: 

"1.  THE EXTENT, CHARACTER AND OBJECTS OF COMMUNIST COLONIZATION AND
INFILTRATION IN THE TEXTILE AND OTHER BASIC INDUSTRIES LOCATED IN THE
SOUTH, AND COMMUNIST PARTY PROPAGANDA ACTIVITIES IN THE SOUTH, THE
LEGISLATIVE PURPOSE BEING: 

"(A)  TO OBTAIN ADDITIONAL INFORMATION FOR USE BY THE COMMITTEE IN
ITS CONSIDERATION OF SECTION 16 OF H.R. 9352, RELATING TO THE PROPOSED
AMENDMENT OF SECTION 4 OF THE COMMUNIST CONTROL ACT OF 1954,
PRESCRIBING A PENALTY FOR KNOWINGLY AND WILFULLY BECOMING OR REMAINING
A MEMBER OF THE COMMUNIST PARTY WITH KNOWLEDGE OF THE PURPOSES OR
OBJECTIVES THEREOF; AND: 

"(B)  TO OBTAIN ADDITIONAL INFORMATION, ADDING TO THE COMMITTEE'S
OVERALL KNOWLEDGE ON THE SUBJECT SO THAT CONGRESS MAY BE KEPT INFORMED
AND THUS PREPARED TO ENACT REMEDIAL LEGISLATION IN THE NATIONAL
DEFENSE, AND FOR INTERNAL SECURITY, WHEN AND IF THE EXIGENCIES OF THE
SITUATION REQUIRE IT.

"2.  ENTRY AND DISSEMINATION WITHIN THE UNITED STATES OF FOREIGN
COMMUNIST PARTY PROPAGANDA, THE LEGISLATIVE PURPOSE BEING TO DETERMINE
THE NECESSITY FOR, AND ADVISABILITY OF, AMENDMENTS TO THE FOREIGN
AGENTS REGISTRATION ACT DESIGNED MORE EFFECTIVELY TO COUNTERACT THE
COMMUNIST SCHEMES AND DEVICES NOW USED IN AVOIDING THE PROHIBITIONS OF
THE ACT. 

"3.  ANY OTHER MATTER WITHIN THE JURISDICTION OF THE COMMITTEE WHICH
IT, OR ANY SUBCOMMITTEE THEREOF, APPOINTED TO CONDUCT THIS HEARING, MAY
DESIGNATE." 

THE SUBCOMMITTEE WHICH WAS APPOINTED PURSUANT TO THIS RESOLUTION
CONVENED IN ATLANTA ON JULY 29, 1958.  AT THE OPENING OF THE
PROCEEDINGS ON THAT DAY, THE CHAIRMAN OF THE COMMITTEE ORALLY
SUMMARIZED THE PURPOSES OF THE HEARINGS.  THE PETITIONER WAS PRESENT
AND HEARD THE CHAIRMAN'S STATEMENT. 

THE FIRST WITNESS TO APPEAR WAS AMANDO PENHA, WHO TESTIFIED THAT HE
HAD BEEN A MEMBER OF THE COMMUNIST PARTY FROM 1950 TO 1958, HAVING
JOINED THE PARTY AT THE REQUEST OF THE FEDERAL BUREAU OF
INVESTIGATION.  HE STATED THAT HE HAD SERVED AS A MEMBER OF THE
NATIONAL TEXTILE COMMISSION OF THE PARTY, WHICH, HE SAID, WAS SET UP TO
CONTROL AND SUPERVISE THE INFILTRATION AND COLONIZATION OF THE TEXTILE
INDUSTRY, PARTICULARLY IN THE SOUTH.  HE DESCRIBED THE "COLONIZER"
SYSTEM, WHICH, HE SAID, INVOLVES SENDING HARD-CORE PARTY MEMBERS INTO
PLANTS IN JOBS WHERE THEY HAVE CLOSE CONTACT WITH RANK-AND-FILE
WORKERS.  PENHA DESCRIBED IN SOME DETAIL HIS TRIPS THROUGHOUT THE SOUTH
IN COMPLIANCE WITH THE INSTRUCTIONS OF THE NATIONAL TEXTILE COMMISSION,
AND IDENTIFIED A NUMBER OF INDIVIDUALS AS "COLONIZERS."  ANOTHER
WITNESS, A DEPUTY COLLECTOR OF CUSTOMS, DESCRIBED THE INFLUX OF
COMMUNIST PROPAGANDA SENT FROM ABROAD INTO THE UNITED STATES AND
PARTICULARLY INTO THE SOUTH.  SEVERAL OTHER WITNESSES WERE THEN
INTERROGATED, SOME AS TO THEIR ACTIVITIES AS ALLEGED COMMUNIST
COLONIZERS, OTHERS AS TO THEIR CONNECTION WITH CERTAIN ALLEGEDLY
COMMUNIST-CONTROLLED PUBLICATIONS.  A NUMBER OF THESE WITNESSES
DECLINED TO ANSWER MOST OF THE QUESTIONS PUT TO THEM. 

ON THE FOLLOWING DAY THE FIRST WITNESS BEFORE THE SUBCOMMITTEE WAS
CARL BRADEN.  ALTHOUGH INTERROGATED AT LENGTH HE DECLINED TO ANSWER
QUESTIONS RELATING TO ALLEGED COMMUNIST ACTIVITY.  (FN4)  THE NEXT
WITNESS WAS THE PETITIONER.  AFTER BEING SWORN AND STATING HIS NAME HE
DECLINED TO GIVE HIS RESIDENCE ADDRESS, STATING THAT, "AS A MATTER OF
CONSCIENCE AND PERSONAL RESPONSIBILITY, I REFUSE TO ANSWER ANY
QUESTIONS OF THIS COMMITTEE."  WHEN ASKED HIS OCCUPATION, HE MADE THE
SAME RESPONSE.  HE WAS THEN ASKED THE QUESTION WHICH WAS TO BECOME THE
SUBJECT OF THE PRESENT INDICTMENT AND CONVICTION:  "MR. WILKINSON, ARE
YOU NOW A MEMBER OF THE COMMUNIST PARTY?"  HE DECLINED TO ANSWER THE
QUESTION GIVING THE SAME RESPONSE AS BEFORE. 

THE COMMITTEE'S STAFF DIRECTOR THEN ADDRESSED THE PETITIONER AT
LENGTH, IN EXPLANATION "OF THE REASONS, THE PERTINENCY, AND THE
RELEVANCY OF THAT QUESTION AND CERTAIN OTHER QUESTIONS WHICH I PROPOSE
TO PROPOUND TO YOU."  (FN5) 

IN RESPONSE THE PETITIONER STATED "I AM REFUSING TO ANSWER ANY
QUESTIONS OF THIS COMMITTEE."  HE WAS THEN DIRECTED BY THE SUBCOMMITTEE
CHAIRMAN TO ANSWER THE QUESTION AS TO HIS COMMUNIST PARTY MEMBERSHIP. 
THIS TIME HE RESPONDED AS FOLLOWS: 

"I CHALLENGE, IN THE MOST FUNDAMENTAL SENSE, THE LEGALITY OF THE
HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES.  IT IS MY OPINION THAT THIS
COMMITTEE STANDS IN DIRECT VIOLATION BY ITS MANDATE AND BY ITS
PRACTICES OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION.  IT
IS MY BELIEF THAT CONGRESS HAD NO AUTHORITY TO ESTABLISH THIS COMMITTEE
IN THE FIRST INSTANCE, NOR TO INSTRUCT IT WITH THE MANDATE WHICH IT
HAS. 

"I HAVE THE UTMOST RESPECT FOR THE BROAD POWERS WHICH THE CONGRESS OF
THE UNITED STATES MUST HAVE TO CARRY ON ITS INVESTIGATIONS FOR
LEGISLATIVE PURPOSES.  HOWEVER, THE UNITED STATES SUPREME COURT HAS
HELD THAT, BROAD AS THESE POWERS MAY BE, THE CONGRES CANNOT INVESTIGATE
INTO AN AREA WHERE IT CANNOT LEGISLATE, AND THIS COMMITTEE TENDS, BY
ITS MANDATE AND BY ITS PRACTICES, TO INVESTIGATE INTO PRECISELY THOSE
AREAS OF FREE SPEECH, RELIGION, PEACEFUL ASSOCIATION AND ASSEMBLY, AND
THE PRESS, WHEREIN IT CANNOT LEGISLATE AND THEREFORE IT CANNOT
INVESTIGATE." 

THE HEARING CONTINUED.  THE STAFF DIRECTOR READ PART OF THE RECORD OF
AN EARLIER HEARING IN CALIFORNIA, WHERE A WITNESS HAD TESTIFIED TO
KNOWING THE PETITIONER AS A COMMUNIST.  THE PETITIONER WAS THEN ASKED
WHETHER THIS TESTIMONY WAS TRUE.  HE REFUSED TO ANSWER THIS AND SEVERAL
FURTHER QUESTIONS ADDRESSED TO HIM.  THERE WAS INTRODUCED INTO THE
RECORD A REPRODUCTION OF THE PETITIONER'S REGISTRATION AT AN ATLANTA
HOTEL A WEEK EARLIER, IN WHICH HE HAD INDICATED THAT HIS BUSINESS FIRM
ASSOCIATION WAS THE "EMERGENCY CIVIL LIBERTIES COMMITTEE." 

THE SUBSEQUENT INDICTMENT AND CONVICTION OF THE PETITIONER WERE BASED
UPON HIS REFUSAL, IN THE FOREGOING CONTEXT, TO ANSWER THE SINGLE
QUESTION "ARE YOU NOW A MEMBER OF THE COMMUNIST PARTY?" 

                                        II. 

THE JUDGMENT AFFIRMING THE PETITIONER'S CONVICTION IS ATTACKED HERE
FROM SEVERAL DIFFERENT DIRECTIONS.  IT IS CONTENDED THAT THE
SUBCOMMITTEE WAS WITHOUT AUTHORITY TO INTERROGATE HIM, BECAUSE ITS
PURPOSE IN DOING SO WAS TO INVESTIGATE PUBLIC OPPOSITION TO THE
COMMITTEE ITSELF AND TO HARASS AND EXPOSE HIM.  IT IS ARGUED THAT THE
PETITIONER WAS WRONGLY CONVICTED BECAUSE THE QUESTION WHICH HE REFUSED
TO ANSWER WAS NOT PERTINENT TO A QUESTION UNDER INQUIRY BY THE
SUBCOMMITTEE, SO THAT A BASIC ELEMENT OF THE STATUTORY OFFENSE WAS
LACKING.  IT IS SAID THAT IN ANY EVENT THE PERTINENCY OF THE QUESTION
WAS NOT MADE CLEAR TO THE PETITIONER AT THE TIME HE WAS DIRECTED TO
ANSWER IT, SO THAT HE WAS DENIED DUE PROCESS.  FINALLY, IT IS URGED
THAT THE ACTION OF THE SUBCOMMITTEE IN SUBPOENAING AND QUESTIONING HIM
VIOLATED HIS RIGHTS UNDER THE FIRST AMENDMENT TO THE CONSTITUTION.  IN
CONSIDERING THESE CONTENTIONS THE STARTING POINT MUST BE TO DETERMINE
THE SUBJECT MATTER OF THE SUBCOMMITTEE'S INQUIRY.  HOUSE RULE XI, WHICH
CONFERS INVESTIGATIVE AUTHORITY UPON THE COMMITTEE AND ITS
SUBCOMMITTEES, IS QUOTED ABOVE.  BECAUSE OF THE BREADTH AND GENERALITY
OF ITS LANGUAGE, RULE XI CANNOT BE SAID TO STATE WITH ADEQUATE
PRECISION THE SUBJECT UNDER INQUIRY BY A SUBCOMMITTEE AT ANY GIVEN
HEARING.  THIS THE COURT HAD OCCASION TO POINT OUT IN WATKINS V. UNITED
STATES, 354 U.S. 178.  SEE ALSO BARENBLATT V. UNITED STATES, 360 U.S.
109, 116-117.  BUT, AS THE WATKINS OPINION RECOGNIZED, RULE XI IS ONLY
ONE OF SEVERAL POSSIBLE POINTS OF REFERENCE.  THE COURT IN THAT CASE
SAID THAT "THE AUTHORIZING RESOLUTION, THE REMARKS OF THE CHAIRMAN OR
MEMBERS OF THE COMMITTEE, OR EVEN THE NATURE OF THE PROCEEDINGS
THEMSELVES" MIGHT REVEAL THE SUBJECT UNDER INQUIRY.  354 U.S., AT 209. 
HERE, AS IN BARENBLATT, OTHER SOURCES DO SUPPLY THE REQUISITE
CONCRETENESS. 

THE RESOLUTION AUTHORIZING THE SUBCOMMITTEE HEARING IN ATLANTA WAS
EXPLICIT.  IT CLEARLY SET FORTH THREE CONCRETE AREAS OF INVESTIGATION:
COMMUNIST INFILTRATION INTO BASIC INDUSTRY IN THE SOUTH, COMMUNIST
PARTY PROPAGANDA IN THE SOUTH, AND FOREIGN COMMUNIST PARTY PROPAGANDA
IN THE UNITED STATES.  (FN6)  THE PATTERN OF INTERROGATION OF THE
WITNESSSES WHO APPEARED ON THE FIRST DAY OF THE HEARING CONFIRMS THAT
THE SUBCOMMITTEE WAS PURSUING THOSE THREE SUBJECTS OF INVESTIGATION. 
THE STAFF DIRECTOR'S STATEMENT TO THE PETITIONER EXPLICITLY REFERRED TO
THE SECOND OF THE THREE SUBJECTS - COMMUNIST PARTY PROPAGANDA IN THE
SOUTH.  WE THINK THAT THE RECORD THUS CLEARLY ESTABLISHES THAT THE
SUBCOMMITTEE AT THE TIME OF THE PETITIONER'S INTERROGATION WAS PURSUING
AT LEAST TWO RELATED AND SPECIFIC SUBJECTS OF INVESTIGATION:  COMMUNIST
INFILTRATION INTO BASIC SOUTHERN INDUSTRY, AND COMMUNIST PARTY
PROPAGANDA ACTIVITIES IN THAT AREA OF THE COUNTRY. 

IF THESE, THEN, WERE THE TWO SUBJECTS OF THE SUBCOMMITTEE'S INQUIRY,
THE QUESTIONS THAT MUST BE ANSWERED IN CONSIDERING THE PETITIONER'S
CONTENTIONS ARE SEVERAL.  FIRST, WAS THE SUBCOMMITTEE'S INVESTIGATION
OF THESE SUBJECTS, THROUGH INTERROGATION OF THE PETITIONER, AUTHORIZED
BY CONGRESS?  SECOND, WAS THE SUBCOMMITTEE PURSUING A VALID LEGISLATIVE
PURPOSE?  THIRD, WAS THE QUESTION ASKED THE PETITIONER PERTINENT TO THE
SUBJECT MATTER OF THE INVESTIGATION?  FOURTH, WAS HE CONTEMPORANEOUSLY
APPRISED OF THE PERTINENCY OF THE QUESTION?  FIFTH, DID THE
SUBCOMMITTEE'S INTERROGATION VIOLATE HIS FIRST AMENDMENT RIGHTS OF FREE
ASSOCIATION AND FREE SPEECH? 

THE QUESTION OF BASIC CONGRESSIONAL AUTHORIZATION WAS CLEARLY DECIDED
IN BARENBLATT V. UNITED STATES, SUPRA.  THERE WE SAID, AFTER REVIEWING
THE GENESIS AND SUBSEQUENT HISTORY OF RULE XI, THAT "IT CAN HARDLY BE
SERIOUSLY ARGUED THAT THE INVESTIGATION OF COMMUNIST ACTIVITIES
GENERALLY, AND THE ATTENDANT USE OF COMPULSORY PROCESS, WAS BEYOND THE
PURVIEW OF THE COMMITTEE'S INTENDED AUTHORITY UNDER RULE XI."  360
U.S., AT 120-121.  THE SUBJECTS UNDER INQUIRY HERE SURELY FALL WITHIN
"THE INVESTIGATION OF COMMUNIST ACTIVITIES GENERALLY." 

THE PETITIONER ARGUES, HOWEVER, THAT THE SUBCOMMITTEE WAS INSPIRED TO
INTERROGATE HIM BY REASON OF HIS OPPOSITION TO THE EXISTENCE OF THE UN
AMERICAN ACTIVITIES COMMITTEE ITSELF, AND THAT ITS PURPOSE WAS
UNAUTHORIZED HARASSMENT AND EXPOSURE.  HE POINTS TO THE CHAIRMAN'S
OPENING STATEMENT WHICH MENTIONED ACTIVITY AGAINST THE COMMITTEE, TO
THE FACT THAT HE WAS SUBPOENAED TO APPEAR BEFORE THE SUBCOMMITTEE SOON
AFTER HE ARRIVED IN ATLANTA TO STIR UP OPPOSITION TO THE COMMITTEE'S
ACTIVITIES, AND TO THE STATEMENT OF THE STAFF DIRECTOR INDICATING THE
SUBCOMMITTEE'S AWARENESS OF HIS EFFORTS TO DEVELOP A "HOSTILE
SENTIMENT" TO THE COMMITTEE AND TO "BRING PRESSURE UPON THE UNITED
STATES CONGRESS TO PRECLUDE THESE PARTICULAR HEARINGS." 

BUT, JUST AS IN BARENBLATT, SUPRA, WE COULD FIND NOTHING IN RULE XI
TO EXCLUDE THE FIELD OF EDUCATION FROM THE COMMITTEE'S COMPULSORY
AUTHORITY, WE CAN FIND NOTHING TO INDICATE THAT IT WAS THE INTENT OF
CONGRESS TO IMMUNIZE FROM INTERROGATION ALL THOSE (AND THERE ARE MANY)
WHO ARE OPPOSED TO THE EXISTENCE OF THE UN-AMERICAN ACTIVITIES
COMMITTEE. 

NOR CAN WE SAY ON THIS RECORD THAT THE SUBCOMMITTEE WAS NOT PURSUING
A VALID LEGISLATIVE PURPOSE.  THE COMMITTEE RESOLUTION AUTHORIZING THE
ATLANTA HEARING, QUOTED ABOVE, EXPRESSLY REFERRED TO TWO LEGISLATIVE
PROPOSALS, AN AMENDMENT TO SEC. 4 OF THE COMMUNIST CONTROL ACT OF 1954
AND AMENDMENTS TO THE FOREIGN AGENTS REGISTRATION ACT OF 1938.  A
NUMBER OF OTHER SOURCES ALSO INDICATE THE PRESENCE OF A LEGISLATIVE
PURPOSE.  THE CHAIRMAN'S STATEMENT AT THE OPENING OF THE HEARINGS
CONTAINED A LENGTHY DISCUSSION OF LEGISLATION.  (FN7)  THE STAFF
DIRECTOR'S STATEMENT TO THE PETITIONER ALSO DISCUSSED LEGISLATION WHICH
THE COMMITTEE HAD UNDER CONSIDERATION.  (FN8)  ALL THESE SOURCES
INDICATE THE EXISTENCE OF A LEGISLATIVE PURPOSE.  AND THE DETERMINATION
THAT PURPOSES OF THE KIND REFERRED TO ARE UNASSAILABLY VALID WAS A
CORNERSTONE OF OUR DECISION IN BARENBLATT, SUPRA:  "THAT CONGRESS HAS
WIDE POWER TO LEGISLATE IN THE FIELD OF COMMUNIST ACTIVITY IN THIS
COUNTRY, AND TO CONDUCT APPROPRIATE INVESTIGATIONS IN AID THEREOF, IS
HARDLY DEBATABLE.  THE EXISTENCE OF SUCH POWER HAS NEVER BEEN
QUESTIONED BY THIS COURT, AND IT IS SUFFICIENT TO SAY, WITHOUT
PARTICULARIZATION, THAT CONGRESS HAS ENACTED OR CONSIDERED IN THIS
FIELD A WIDE RANGE OF LEGISLATIVE MEASURES, NOT A FEW OF WHICH HAVE
STEMMED FROM RECOMMENDATIONS OF THE VERY COMMITTEE WHOSE ACTIONS HAVE
BEEN DRAWN IN QUESTION HERE.  IN THE LAST ANALYSIS THIS POWER RESTS ON
THE RIGHT OF SELF-PRESERVATION  ...  ."  360 U.S., AT 127-128. 

THE PETITIONER'S CONTENTION THAT, WHILE THE HEARING GENERALLY MAY
HAVE BEEN PURSUANT TO A VALID LEGISLATIVE PURPOSE, THE SOLE REASON FOR
INTERROGATING HIM WAS TO EXPOSE HIM TO PUBLIC CENSURE BECAUSE OF HIS
ACTIVITIES AGAINST THE COMMITTEE IS NOT PERSUASIVE.  IT IS TRUE THAT
THE STAFF DIRECTOR'S STATEMENT REVEALS THE SUBCOMMITTEE'S AWARENESS OF
THE PETITIONER'S OPPOSITION TO THE HEARINGS AND INDICATES THAT THE
PETITIONER WAS NOT SUMMONED TO APPEAR UNTIL AFTER HE HAD ARRIVED IN
ATLANTA AS THE REPRESENTATIVE OF A GROUP CARRYING ON A PUBLIC CAMPAIGN
TO ABOLISH THE HOUSE COMMITTEE.  THESE CIRCUMSTANCES, HOWEVER, DO NOT
NECESSARILY LEAD TO THE CONCLUSION THAT THE SUBCOMMITTEE'S INTENT WAS
PERSONAL PERSECUTION OF THE PETITIONER.  AS WE HAVE NOTED, A PRIME
PURPOSE OF THE HEARINGS WAS TO INVESTIGATE COMMUNIST PROPAGANDA
ACTIVITIES IN THE SOUTH.  IT THEREFORE WAS ENTIRELY LOGICAL FOR THE
SUBCOMMITTEE TO SUBPOENA THE PETITIONER AFTER HE HAD ARRIVED AT THE
SITE OF THE HEARINGS, HAD REGISTERED AS A MEMBER OF A GROUP WHICH THE
SUBCOMMITTEE BELIEVED TO BE COMMUNIST DOMINATED, AND HAD CONDUCTED A
PUBLIC CAMPAIGN AGAINST THE SUBCOMMITTEE.  THE FACT THAT THE PETITIONER
MIGHT NOT HAVE BEEN SUMMONED TO APPEAR HAD HE NOT COME TO ATLANTA
ILLUSTRATES THE VERY POINT, FOR IN THAT EVENT HE MIGHT NOT HAVE BEEN
THOUGHT TO HAVE BEEN CONNECTED WITH A SUBJECT UNDER INQUIRY - COMMUNIST
PARTY PROPAGANDA ACTIVITIES IN THAT AREA OF THE COUNTRY. 

MOREOVER, IT IS NOT FOR US TO SPECULATE AS TO THE MOTIVATIONS THAT
MAY HAVE PROMPTED THE DECISION OF INDIVIDUAL MEMBERS OF THE
SUBCOMMITTEE TO SUMMON THE PETITIONER.  AS WAS SAID IN WATKINS, SUPRA,
"A SOLUTION TO OUR PROBLEM IS NOT TO BE FOUND IN TESTING THE MOTIVES OF
COMMITTEE MEMBERS FOR THIS PURPOSE.  SUCH IS NOT OUR FUNCTION.  THEIR
MOTIVES ALONE WOULD NOT VITIATE AN INVESTIGATION WHICH HAD BEEN
INSTITUTED BY A HOUSE OF CONGRESS IF THAT ASSEMBLY'S LEGISLATIVE
PURPOSE IS BEING SERVED."  354 U.S., AT 200.  SEE ALSO BARENBLATT,
SUPRA, 360 U.S., AT 132. 

IT IS TO BE EMPHASIZED THAT THE PETITIONER WAS NOT SUMMONED TO APPEAR
AS THE RESULT OF AN INDISCRIMINATE DRAGNET PROCEDURE, LACKING IN
PROBABLE CAUSE FOR BELIEF THAT HE POSSESSED INFORMATION WHICH MIGHT BE
HELPFUL TO THE SUBCOMMITTEE.  AS WAS MADE CLEAR BY THE TESTIMONY OF THE
COMMITTEE'S STAFF DIRECTOR AT THE TRIAL, THE SUBCOMMITTEE HAD REASON TO
BELIEVE AT THE TIME IT SUMMONED THE PETITIONER THAT HE WAS AN ACTIVE
COMMUNIST LEADER ENGAGED PRIMARILY IN PROPAGANDA ACTIVITIES.  (FN9)
THIS IS BORNE OUT BY THE RECORD OF THE SUBCOMMITTEE HEARINGS, INCLUDING
THE CONTENT OF THE STAFF DIRECTOR'S STATEMENT TO THE PETITIONER AND
EVIDENCE THAT AT A PRIOR HEARING THE PETITIONER HAD BEEN IDENTIFIED AS
A COMMUNIST PARTY MEMBER. 

THE PETITIONER'S CLAIM THAT THE QUESTION HE REFUSED TO ANSWER WAS NOT
PERTINENT TO A SUBJECT UNDER INQUIRY MERITS NO EXTENDED DISCUSSION. 
INDEED, IT IS DIFFICULT TO IMAGINE A PRELIMINARY QUESTION MORE
PERTINENT TO THE TOPICS UNDER INVESTIGATION THAN WHETHER PETITIONER WAS
IN FACT A MEMBER OF THE COMMUNIST PARTY.  AS WAS SAID IN BARENBLATT,
"PETITIONER REFUSED TO ANSWER QUESTIONS AS TO HIS OWN COMMUNIST PARTY
AFFILIATIONS, WHOSE PERTINENCY OF COURSE WAS CLEAR BEYOND DOUBT."  360
U.S., AT 125.   THE CONTENTION THAT THE PERTINENCY OF THE QUESTION WAS
NOT MADE CLEAR TO THE PETITIONER AT THE TIME HE WAS DIRECTED TO ANSWER
IT IS EQUALLY WITHOUT FOUNDATION.  AFTER THE STAFF DIRECTOR GAVE A
DETAILED EXPLANATION OF THE QUESTION'S PERTINENCY, THE PETITIONER SAID
NOTHING TO INDICATE THE HE ENTERTAINED ANY DOUBT ON THIS SCORE. 
(FN10) 

WE COME FINALLY TO THE CLAIM THAT THE SUBCOMMITTEE'S INTERROGATION OF
THE PETITIONER VIOLATED HIS RIGHTS UNDER THE FIRST AMENDMENT.  THE
BASIC ISSUES WHICH THIS CONTENTION RAISES WERE THOROUGHLY CANVASSED BY
US IN BARENBLATT.  SUBSTANTIALLY ALL THAT WAS SAID THERE IS EQUALLY
APPLICABLE HERE, AND IT WOULD SERVE NO PURPOSE TO ENLARGE THIS OPINION
WITH A PARAPHRASED REPETITION OF WHAT WAS IN THAT OPINION THOUGHTFULLY
CONSIDERED AND CAREFULLY EXPRESSED.  SEE 360 U.S., AT 125-134. 

IT IS SOUGHT TO DIFFERENTIATE THIS CASE UPON THE BASIS THAT "THE
ACTIVITIES IN WHICH PETITIONER WAS BELIEVED TO BE PARTICIPATING
CONSISTED OF PUBLIC CRITICISM OF THE COMMITTEE AND ATTEMPTS TO
INFLUENCE PUBLIC OPINION TO PETITION CONGRESS FOR REDRESS - TO ABOLISH
THE COMMITTEE."  BUT WE CANNOT SAY THAT, SIMPLY BECAUSE THE PETITIONER
AT THE MOMENT MAY HAVE BEEN ENGAGED IN LAWFUL CONDUCT, HIS COMMUNIST
ACTIVITIES IN CONNECTION THEREWITH COULD NOT BE INVESTIGATED.  THE
SUBCOMMITTEE HAD REASONABLE GROUND TO SUPPOSE THAT THE PETITIONER WAS
AN ACTIVE COMMUNIST PARTY MEMBER, AND THAT AS SUCH HE POSSESSED
INFORMATION THAT WOULD SUBSTANTIALLY AID IT IN ITS LEGISLATIVE
INVESTIGATION.  AS THE BARENBLATT OPINION MAKES CLEAR, IT IS THE NATURE
OF THE COMMUNIST ACTIVITY INVOLVED, WHETHER THE MOMENTARY CONDUCT IS
LEGITIMATE OR ILLEGITIMATE POLITICALLY, THAT ESTABLISHES THE
GOVERNMENT'S OVERBALANCING INTEREST.  "TO SUGGEST THAT BECAUSE THE
COMMUNIST PARTY MAY ALSO SPONSOR PEACEABLE POLITICAL REFORMS THE
CONSTITUTIONAL ISSUES BEFORE US SHOULD NOW BE JUDGED AS IF THAT PARTY
WERE JUST AN ORDINARY POLITICAL PARTY FROM THE STANDPOINT OF NATIONAL
SECURITY, IS TO ASK THIS COURT TO BLIND ITSELF TO WORLD AFFAIRS WHICH
HAVE DETERMINED THE WHOLE COURSE OF OUR NATIONAL POLICY SINCE THE CLOSE
OF WORLD WAR II  ...  ."  360 U.S., AT 128-129. 

THE SUBCOMMITTEE'S LEGITIMATE LEGISLATIVE INTEREST WAS NOT THE
ACTIVITY IN WHICH THE PETITIONER MIGHT HAVE HAPPENED AT THE TIME TO BE
ENGAGED, BUT IN THE MANIPULATION AND INFILTRATION OF ACTIVITIES AND
ORGANIZATIONS BY PERSONS ADVOCATING OVERTHROW OF THE GOVERNMENT.  "THE
STRICT REQUIREMENTS OF A PROSECUTION UNDER THE SMITH ACT  ... ARE NOT
THE MEASURE OF THE PERMISSIBLE SCOPE OF A CONGRESSIONAL INVESTIGATION
INTO 'OVERTHROW,' FOR OF NECESSITY THE INVESTIGATORY PROCESS MUST
PROCEED STEP BY STEP."  360 U.S., AT 130. 

WE CONCLUDE THAT THE FIRST AMENDMENT CLAIMS PRESSED HERE ARE
INDISTINGUISHABLE FROM THOSE CONSIDERED IN BARENBLATT, AND THAT UPON
THE REASONING AND THE AUTHORITY OF THAT CASE THEY CANNOT PREVAIL. 
AFFIRMED. 

FN1  THE APPLICABLE STATUTE IS 2 U.S.C. SEC. 192.  IT PROVIDES:
"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 JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, 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 JAIL FOR NOT LESS THAN ONE MONTH NOR
MORE THAN TWELVE MONTHS."  2 U.S.C. SEC. 192. 

FN2  RULE X OF THE STANDING RULES OF THE HOUSE OF REPRESENTATIVES, AS
AMENDED BY THE LEGISLATIVE REORGANIZATION ACT OF 1946, C. 753, SEC.
121, 60 STAT. 812, 822, 823. 

FN3  RULE XI OF THE STANDING RULES (60 STAT. 823, 828).  THESE
STANDING RULES WERE SPECIFICALLY ADOPTED BY THE HOUSE, AT THE BEGINNING
OF THE 85TH CONGRESS IN 1957 (H. RES.  NO. 5, 85TH CONG., 1ST SESS.). 

FN4  SEE BRADEN V. UNITED STATES, POST, P. 431. 

FN5  "NOW, SIR, I SHOULD LIKE TO MAKE AN EXPLANATION TO YOU OF THE
REASONS, THE PERTINENCY, AND THE RELEVANCY OF THAT QUESTION AND CERTAIN
OTHER QUESTIONS WHICH I PROPOSE TO PROPOUND TO YOU; AND I DO SO FOR THE
PURPOSE OF LAYING A FOUNDATION UPON WHICH I WILL THEN REQUEST THE
CHAIRMAN OF THIS SUBCOMMITTEE TO ORDER AND DIRECT YOU TO ANSWER THOSE
QUESTIONS. 

"THE COMMITTEE ON UN-AMERICAN ACTIVITIES HAS TWO MAJOR
RESPONSIBILITIES WHICH IT IS UNDERTAKING TO PERFORM HERE IN ATLANTA. 

"RESPONSIBILITY NUMBER 1, IS TO MAINTAIN A CONTINUING SURVEILLANCE
OVER THE ADMINISTRATION AND OPERATION OF A NUMBER OF OUR INTERNAL
SECURITY LAWS.  IN ORDER TO DISCHARGE THAT RESPONSIBILITY THE COMMITTEE
ON UN-AMERICAN ACTIVITIES MUST UNDERTAKE TO KEEP ABREAST OF TECHNIQUES
OF COMMUNISTS' OPERATIONS IN THE UNITED STATES AND COMMUNIST ACTIVITIES
IN THE UNITED STATES.  IN ORDER TO KNOW ABOUT COMMUNIST ACTIVITIES AND
COMMUNIST TECHNIQUES, WE HAVE GOT TO KNOW WHO THE COMMUNISTS ARE AND
WHAT THEY ARE DOING. 

"RESPONSIBILITY NUMBER 2, IS TO DEVELOP FACTUAL INFORMATION WHICH
WILL ASSIST THE COMMITTEE ON UN-AMERICAN ACTIVITIES IN APPRAISING
LEGISLATIVE PROPOSALS BEFORE THE COMMITTEE. 

"THERE ARE PENDING BEFORE THE COMMITTEE A NUMBER OF LEGISLATIVE
PROPOSALS WHICH UNDERTAKE TO MORE ADEQUATELY COPE WITH THE COMMUNIST
PARTY AND THE COMMUNIST CONSPIRATORIAL OPERATIONS IN THE UNITED
STATES.  H.R. 9937 IS ONE OF THOSE.  OTHER PROPOSALS ARE PENDING BEFORE
THE COMMITTEE NOT IN LEGISLATIVE FORM YET, BUT IN THE FORM OF
SUGGESTIONS THAT THERE BE AN OUTRIGHT OUTLAWRY OF THE COMMUNIST PARTY;
SECONDLY, THAT THERE BE REGISTRATIONS REQUIRED OF CERTAIN ACTIVITIES OF
COMMUNISTS; THIRD, THAT THERE BE CERTAIN AMENDMENTS TO THE FOREIGN
AGENTS REGISTRATION ACT BECAUSE THIS CONGRESS OF THE UNITED STATES HAS
FOUND REPEATEDLY THAT THE COMMUNIST PARTY AND COMMUNISTS IN THE UNITED
STATES ARE ONLY INSTRUMENTALITIES OF A KREMLIN-CONTROLLED WORLD
COMMUNIST APPARATUS.  SIMILAR PROPOSALS ARE PENDING BEFORE THIS
COMMITTEE. 

"NOW WITH REFERENCE TO PERTINENCY OF THIS QUESTION TO YOUR OWN
FACTUAL SITUATION, MAY I SAY THAT IT IS THE INFORMATION OF THIS
COMMITTEE THAT YOU NOW ARE A HARD-CORE MEMBER OF THE COMMUNIST PARTY;
THAT YOU WERE DESIGNATED BY THE COMMUNIST PARTY FOR THE PURPOSE OF
CREATING AND MANIPULATING CERTAIN ORGANIZATIONS, INCLUDING THE
EMERGENCY CIVIL LIBERTIES COMMITTEE, THE AFFILIATE ORGANIZATIONS OF THE
EMERGENCY CIVIL LIBERTIES COMMITTEE, INCLUDING A PARTICULAR COMMITTEE
IN CALIFORNIA AND A PARTICULAR COMMITTEE IN CHICAGO, A COMMITTEE - THE
NAME OF WHICH IS ALONG THE LINE OF THE COMMITTEE FOR CULTURAL FREEDOM,
OR SOMETHING OF THAT KIND.  I DON'T HAVE THE NAME BEFORE ME AT THE
INSTANT. 

"IT IS THE INFORMATION OF THE COMMITTEE OR THE SUGGESTION OF THE
COMMITTEE THAT IN ANTICIPATION OF THE HEARINGS HERE IN ATLANTA,
GEORGIA, YOU WERE SENT TO THIS AREA BY THE COMMUNIST PARTY FOR THE
PURPOSE OF DEVELOPING A HOSTILE SENTIMENT TO THIS COMMITTEE AND TO ITS
WORK FOR THE PURPOSE OF UNDERTAKING TO BRING PRESSURE UPON THE UNITED
STATES CONGRESS TO PRECLUDE THESE PARTICULAR HEARINGS.   INDEED IT IS
THE FACT THAT YOU WERE NOT EVEN SUBPENAED FOR THESE PARTICULAR HEARINGS
UNTIL WE LEARNED THAT YOU WERE IN TOWN FOR THAT VERY PURPOSE AND THAT
YOU WERE NOT SUBPENAED TO APPEAR BEFORE THIS COMMITTEE UNTIL YOU HAD
ACTUALLY REGISTERED IN THE HOTEL HERE IN ATLANTA. 

"NOW, SIR, IF YOU WILL TELL THIS COMMITTEE WHETHER OR NOT, WHILE YOU
ARE UNDER OATH, YOU ARE NOW A COMMUNIST, WE INTEND TO PURSUE THAT AREA
OF INQUIRY AND UNDERTAKE TO SOLICIT FROM YOU INFORMATION RESPECTING
YOUR ACTIVITIES AS A COMMUNIST ON BEHALF OF THE COMMUNIST PARTY, WHICH
IS TIED UP DIRECTLY WITH THE KREMLIN; YOUR ACTIVITIES FROM THE
STANDPOINT OF PROPAGANDA; YOUR ACTIVITIES FROM THE STANDPOINT OF
UNDERTAKING TO DESTROY THE FEDERAL BUREAU OF INVESTIGATION AND THE
COMMITTEE ON UN-AMERICAN ACTIVITIES, BECAUSE INDEED THIS COMMITTEE
ISSUED A REPORT ENTITLED 'OPERATION ABOLITION,' IN WHICH WE TOLD
SOMETHING, THE INFORMATION WE THEN POSSESSED, RESPECTING THE EFFORTS OF
THE EMERGENCY CIVIL LIBERTIES COMMITTEE, OF WHICH YOU ARE THE GUIDING
LIGHT, TO DESTROY THE F.B.I. AND DISCREDIT THE DIRECTOR OF THE F.B.I.
AND TO UNDERTAKE TO HAMSTRING THE WORK OF THIS COMMITTEE ON UN-AMERICAN
ACTIVITIES." 

FN6  BY CONTRAST, THE AUTHORIZING RESOLUTION THAT WAS BEFORE THE
COURT IN WATKINS INCORPORATED BY REFERENCE THE FULL BREADTH AND
GENERALITY OF RULE XI ITSELF.  THAT RESOLUTION SIMPLY EMPOWERED THE
COMMITTEE CHAIRMAN TO APPOINT SUBCOMMITTEES "FOR THE PURPOSE OF
PERFORMING ANY AND ALL ACTS WHICH THE COMMITTEE AS A WHOLE IS
AUTHORIZED TO DO."  SEE 354 U.S., AT 211, N. 50. 

FN7  "  ...  THE COMMITTEE ON UN-AMERICAN ACTIVITIES IS CONTINUOUSLY
IN THE PROCESS OF ACCUMULATING FACTUAL INFORMATION RESPECTING
COMMUNISTS, THE COMMUNIST PARTY, AND COMMUNIST ACTIVITIES WHICH WILL
ENABLE THE COMMITTEE AND THE CONGRESS TO APPRAISE THE ADMINISTRATION
AND OPERATION OF THE SMITH ACT, THE INTERNAL SECURITY ACT OF 1950, THE
COMMUNIST CONTROL ACT OF 1954, AND NUMEROUS PROVISIONS OF THE CRIMINAL
CODE RELATING TO ESPIONAGE, SABOTAGE, AND SUBVERSION.  IN ADDITION, THE
COMMITTEE HAS BEFORE IT NUMEROUS PROPOSALS TO STRENGTHEN OUR
LEGISLATIVE WEAPONS DESIGNED TO PROTECT THE INTERNAL SECURITY OF THIS
NATION.    "IN THE COURSE OF THE LAST FEW YEARS, AS A RESULT OF
HEARINGS AND INVESTIGATIONS, THIS COMMITTEE HAS MADE OVER 80 SEPARATE
RECOMMENDATIONS FOR LEGISLATIVE ACTION.  LEGISLATION HAS BEEN PASSED BY
THE CONGRESS EMBRACING 35 OF THE COMMITTEE RECOMMENDATIONS AND 26
SEPARATE PROPOSALS ARE CURRENTLY PENDING IN THE CONGRESS ON SUBJECTS
COVERED BY OTHER COMMITTEE RECOMMENDATIONS.  MOREOVER, IN THE COURSE OF
THE LAST FEW YEARS NUMEROUS RECOMMENDATIONS MADE BY THE COMMITTEE FOR
ADMINISTRATIVE ACTION HAVE BEEN ADOPTED BY THE EXECUTIVE AGENCIES OF
THE GOVERNMENT." 

FN8  SEE NOTE 5, SUPRA. 

FN9  THE TRIAL TESTIMONY ON THIS SCORE WAS AS FOLLOWS:  "IN ESSENCE
THE INFORMATION OF WHICH THE COMMITTEE WAS POSSESSED WAS THAT MR.
WILKINSON WAS A MEMBER OF THE COMMUNIST PARTY, THAT HE HAD BEEN
IDENTIFIED BY A CREDITABLE WITNESS UNDER OATH BEFORE THE COMMITTEE A
SHORT TIME OR WITHIN A YEAR OR SO PRIOR TO THE ATLANTA HEARINGS,
IDENTIFIED AS A COMMUNIST.  IT WAS ALSO THE INFORMATION OF THE
COMMITTEE THAT MR. WILKINSON HAD BEEN DESIGNATED BY THE COMMUNIST
HIERARCHY IN THE NATION TO SPEARHEAD OR TO LEAD THE INFILTRATION INTO
THE SOUTH OF A GROUP KNOWN AS THE EMERGENCY CIVIL LIBERTIES COMMITTEE
WHICH ITSELF HAD BEEN CITED BY THE INTERNAL SECURITY SUBCOMMITTEE AS A
COMMUNIST OPERATION OR A COMMUNIST FRONT.  IT WAS THE INFORMATION OF
THE COMMITTEE THAT MR. WILKINSON'S ASSIGNMENTS, INCLUDING SETTING UP
RALLIES AND MEETINGS OVER THE COUNTRY FOR THE PURPOSE OF ENGENDERING
SENTIMENT AGAINST THE FEDERAL BUREAU OF INVESTIGATION, AGAINST THE
SECURITY PROGRAM OF THE GOVERNMENT, AND AGAINST THE COMMITTEE ON UN
AMERICAN ACTIVITIES AND ITS ACTIVITIES.  MR. WILKINSON HAD IN THE
COURSE OF THE RELATIVELY RECENT PAST PRIOR TO HIS APPEARANCE IN ATLANTA
BEEN SENT INTO ATLANTA BY THE COMMUNIST OPERATION FOR THE PURPOSE OF
CONDUCTING COMMUNIST ACTIVITIES IN THE SOUTH AND MORE SPECIFICALLY IN
THE ATLANTA AREA.  WHAT I'M TELLING YOU NOW IS ONLY A GENERAL SUMMARY,
YOU UNDERSTAND." 

FN10  SINCE BOTH THE PERTINENCY OF THE QUESTION AND THE FACT THAT ITS
PERTINENCY WAS BROUGHT HOME TO THE PETITIONER ARE SO INDISPUTABLY
CLEAR, WE NEED NOT CONSIDER THE GOVERNMENT'S CONTENTION THAT THE RECORD
DOES NOT SHOW THAT THE PETITIONER EVER DID OR SAID ANYTHING THAT COULD
BE UNDERSTOOD AS AN OBJECTION UPON GROUNDS OF LACK OF PERTINENCY.  SEE
WATKINS V. UNITED STATES, 354 U.S. 178, 214-215; BARENBLATT V. UNITED
STATES, 360 U.S. 109, 124. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

IN JULY 1958 THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE ANNOUNCED ITS
INTENTION TO CONDUCT A SERIES OF HEARINGS IN ATLANTA, GEORGIA,
OSTENSIBLY TO OBTAIN INFORMATION IN AID OF THE LEGISLATIVE FUNCTION OF
THE HOUSE OF REPRESENTATIVES.  (FN1)  PETITIONER, A LONG-TIME OPPONENT
OF THE COMMITTEE, (FN2) DECIDED TO GO TO ATLANTA FOR THE PURPOSE OF
LENDING HIS SUPPORT TO THOSE WHO WERE FIGHTING AGAINST THE HEARINGS. 
HE ARRIVED IN ATLANTA AND REGISTERED IN A HOTEL THERE ON JULY 23 AS A
REPRESENTATIVE OF THE EMERGENCY CIVIL LIBERTIES COMMITTEE, A NEW YORK
ORGANIZATION WHICH WAS WORKING FOR THE ABOLITION OF THE UN-AMERICAN
ACTIVITIES COMMITTEE.  WITHIN AN HOUR OF HIS REGISTRATION, PETITIONER
WAS SERVED WITH A SUBPOENA REQUIRING HIS APPEARANCE BEFORE THE
COMMITTEE.  WHEN HE APPEARED IN RESPONSE TO THIS SUBPOENA, PETITIONER
WAS TOLD THAT HE HAD BEEN SUBPOENAED BECAUSE THE COMMITTEE WAS INFORMED
THAT "YOU WERE SENT TO THIS AREA BY THE COMMUNIST PARTY FOR THE PURPOSE
OF DEVELOPING A HOSTILE SENTIMENT TO THIS COMMITTEE AND TO ITS WORK FOR
THE PURPOSE OF UNDERTAKING TO BRING PRESSURE UPON THE UNITED STATES
CONGRESS TO PRECLUDE THESE PARTICULAR HEARINGS."  (FN3)  A NUMBER OF
QUESTIONS WERE THEN PUT TO PETITIONER, ALL OF WHICH RELATED TO HIS
PERSONAL BELIEFS AND ASSOCIATIONS, BUT PETITIONER REFUSED TO ANSWER ANY
OF THESE QUESTIONS ON THE GROUND THAT THEY VIOLATED HIS RIGHTS UNDER
THE FIRST AMENDMENT.  FOR THIS, HE WAS CONVICTED UNDER 2 U.S.C. SEC.
192 AND SENTENCED TO JAIL FOR 12 MONTHS. 

ON THESE FACTS, WHICH ARE UNDISPUTED IN THE RECORD, THE MAJORITY
UPHOLDS PETITIONER'S CONVICTION AS "INDISTINGUISHABLE" FROM THAT UPHELD
IN BARENBLATT V. UNITED STATES.  (FN4)  ON THIS POINT, I FIND MYSELF
ONLY PARTIALLY IN DISAGREEMENT WITH THE MAJORITY,  I THINK THIS CASE
COULD AND SHOULD BE DISTINGUISHED FROM BARENBLATT ON THE GROUND URGED
BY MR. JUSTICE DOUGLAS - THAT THE RESOLUTION AUTHORIZING THE UN
AMERICAN ACTIVITIES COMMITTEE DOES NOT AUTHORIZE THAT COMMITTEE TO
INTERROGATE A PERSON FOR CRITICIZING IT.  I THEREFORE JOIN IN THE
DISSENT FILED BY MR. JUSTICE DOUGLAS ON THAT GROUND.  ON THE OTHER
HAND, I MUST AGREE WITH THE MAJORITY THAT SO FAR AS PETITIONER'S
CONSTITUTIONAL CLAIMS ARE CONCERNED, BARENBLATT IS
"INDISTINGUISHABLE."  UNLIKE THE MAJORITY, HOWEVER, I REGARD THIS
RECOGNITION OF THE UNLIMITED SWEEP OF THE DECISION IN THE BARENBLATT
CASE A COMPELLING REASON, NOT TO REAFFIRM THAT CASE, BUT TO OVERRULE
IT. 

IN MY VIEW, THE MAJORITY BY ITS DECISION TODAY PLACES THE STAMP OF
CONSTITUTIONAL APPROVAL UPON A PRACTICE AS CLEARLY INCONSISTENT WITH
THE CONSTITUTION, AND INDEED WITH EVERY IDEAL OF INDIVIDUAL FREEDOM FOR
WHICH THIS COUNTRY HAS SO LONG STOOD, AS ANY THAT HAS EVER COME BEFORE
THIS COURT.  FOR, LIKE MR. JUSTICE DOUGLAS, I THINK IT CLEAR THAT THIS
CASE INVOLVES NOTHING MORE NOR LESS THAN AN ATTEMPT BY THE UN-AMERICAN
ACTIVITIES COMMITTEE TO USE THE CONTEMPT POWER OF THE HOUSE OF
REPRESENTATIVES AS A WEAPON AGAINST THOSE WHO DARE TO CRITICIZE IT.
THE MAJORITY DOES NOT AND, IN REASON, COULD NOT DENY THIS FOR THE
CONCLUSJION IS ALL BUT INESCAPABLE FOR ANYONE WHO WILL TAKE THE TIME TO
READ THE RECORD.  (FN5)  THEY SAY INSTEAD THAT IT MAKES NO DIFFERENCE
WHETHER THE COMMITTEE WAS HARASSING PETITIONER SOLELY BY REASON OF HIS
OPPOSITION TO IT OR NOT BECAUSE "IT IS NOT FOR US TO SPECULATE AS TO
THE MOTIVATIONS THAT MAY HAVE PROMPTED THE DECISION OF INDIVIDUAL
MEMBERS OF THE SUBCOMMITTEE TO SUMMON THE PETITIONER."  THE CLEAR
THRUST OF THIS SWEEPING ABDICATION OF JUDICIAL POWER IS THAT THE
COMMITTEE MAY CONTINUE TO HARASS ITS OPPONENTS WITH ABSOLUTE IMPUNITY
SO LONG AS THE "PROTECTIONS" OF BARENBLATT ARE OBSERVED.  SINCE THIS IS
TO BE THE RULE UNDER WHICH THE COMMITTEE WILL BE PERMITTED TO OPERATE,
I THINK IT NECESSARY IN THE INTEREST OF FAIRNESS TO THOSE WHO MAY IN
THE FUTURE WISH TO EXERCISE THEIR CONSTITUTIONAL RIGHT TO CRITICIZE THE
COMMITTEE THAT THE TRUE NATURE OF THOSE "PROTECTIONS" BE CLEARLY SET
FORTH. 

THE FIRST SUCH "PROTECTION" RELATES TO THE QUESTION OF WHOM THE
COMMITTEE MAY CALL BEFORE IT.  IS THERE ANY LIMITATION UPON THE POWER
OF THE COMMITTEE TO SUBPOENA AND COMPEL TESTIMONY FROM ANYONE WHO
ATTACKS IT?  ON THIS POINT, THE MAJORITY, RELYING UPON THE FACT THAT AT
A PREVIOUS HEARING THE COMMITTEE WAS TOLD BY A PAID INFORMANT THAT
PETITIONER WAS A COMMUNIST AND UPON STATEMENTS BY THE COMMITTEE'S
COUNSEL TO THE EFFECT THAT THE COMMITTEE HAD INFORMATION THAT
PETITIONER HAD BEEN SENT TO ATLANTA BY THE COMMUNIST PARTY, SAYS
SIMPLY:  "IT IS TO BE EMPHASIZED THAT THE PETITIONER WAS NOT SUMMONED
TO APPEAR AS THE RESULT OF AN INDISCRIMINATE DRAGNET PROCEDURE, LACKING
IN PROBABLE CAUSE FOR BELIEF THAT HE POSSESSED INFORMATION WHICH MIGHT
BE HELPFUL TO THE SUBCOMMITTEE."  SIGNIFICANTLY, THE MAJORITY DOES NOT
SAY JUST HOW MUCH ITS "EMPHASIS" ON THIS POINT IS WORTH, IF ANYTHING. 
THUS, FOR ALL THAT APPEARS IN THE MAJORITY OPINION, THERE IS NO
ASSURANCE THAT THE COMMITTEE WILL BE REQUIRED TO PRODUCE ANY
INFORMATION AT ALL AS A PREREQUISITE TO THE EXERCISE OF ITS SUBPOENA
AND CONTEMPT POWERS.  ASSUMING FOR THE SAKE OF ARGUMENT, HOWEVER, THAT
SUCH A REQUIREMENT WILL BE IMPOSED, IT THEN BECOMES RELEVANT TO INQUIRE
AS TO JUST HOW MUCH THIS REQUIREMENT WILL MEAN IN TERMS OF GENUINE
PROTECTION FOR THOSE WHO IN GOOD FAITH WISH TO CRITICIZE THE
COMMITTEE. 

THAT INQUIRY IS, TO MY MIND, SATISFACTORILY SETTLED BY A LOOK AT THE
FACTS OF THIS CASE.  SO FAR AS APPEARS FROM THIS RECORD, THE ONLY
INFORMATION THE COMMITTEE HAD WITH REGARD TO PETITIONER WAS THE
TESTIMONY OF AN INFORMANT AT A PREVIOUS COMMITTEE HEARING.  THE ONLY
EVIDENCE TO THE EFFECT THAT PETITIONER WAS IN FACT A MEMBER OF THE
COMMUNIST PARTY THAT EMERGES FROM THAT TESTIMONY IS A FLAT CONCLUSORY
STATEMENT BY THE INFORMANT THAT IT WAS SO.  (FN6)  NO TESTIMONY AS TO
PARTICULAR HAPPENINGS UPON WHICH SUCH A CONCLUSION COULD RATIONALLY BE
BASED WAS GIVEN AT THAT HEARING.  WHEN THIS FACT IS CONSIDERED IN
CONJUNCTION WITH THE FACT THAT PETITIONER WAS NOT ACCORDED THE
OPPORTUNITY TO CROSS-EXAMINE THE INFORMANT (FN7) OR THE PROTECTION OF
THE STATUTE PERMITTING INSPECTION OF STATEMENTS GIVEN TO THE F.B.I. BY
INFORMANTS, (FN8) IT SEEMS OBVIOUS TO ME THAT SUCH TESTIMONY IS ALMOST
TOTALLY WORTHLESS FOR THE PURPOSE OF ESTABLISHING PROBABLE CAUSE.  FOR
ALL WE KNOW, THE INFORMANT MAY HAVE HAD NO BASIS AT ALL FOR HER
CONCLUSION AND, INDEED, THE POSSIBILITY OF PERJURY CANNOT, IN VIEW OF
ITS FREQUENT RECURRENCE IN THESE SORTS OF CASES, (FN9) BE ENTIRELY
DISCOUNTED.  THUS, IN MY VIEW, THE "PROTECTION" AFFORDED BY A
REQUIREMENT OF SOME SORT OF PROBABLE CAUSE, EVEN IF IMPOSED, IS ALMOST
TOTALLY WORTHLESS.  IN THE ATMOSPHERE EXISTING IN THIS COUNTRY TODAY,
THE CHARGE THAT SOMEONE IS A COMMUNIST IS SO COMMON THAT HARDLY ANYONE
ACTIVE IN PUBLIC LIFE ESCAPES IT. EVERY MEMBER OF THIS COURT HAS, ON
ONE OCCASION OR ANOTHER, BEEN SO DESIGNATED.  AND A VAST MAJORITY OF
THE MEMBERS OF THE OTHER TWO BRANCHES OF GOVERNMENT HAVE FARED NO
BETTER.  IF THE MERE FACT THAT SOMEONE HAS BEEN CALLED A COMMUNIST IS
TO BE PERMITTED TO SATISFY A REQUIREMENT OF PROBABLE CAUSE, I THINK IT
PLAIN THAT SUCH A REQUIREMENT IS WHOLLY WITHOUT VALUE.  TO IMPOSE IT
WOULD ONLY GIVE APPARENT RESPECTABILITY TO A PRACTICE WHICH IS
INHERENTLY IN CONFLICT WITH OUR CONCEPTS OF JUSTICE AND DUE PROCESS. 

THE OTHER SUCH "PROTECTION" AFFORDED TO CRITICS OF THE UN-AMERICAN
ACTIVITIES COMMITTEE UNDER THESE DECISIONS IS INCLUDED IN THE
MAJORITY'S SO-CALLED BALANCING TEST.  UNDER THAT TEST, WE ARE TOLD,
THIS COURT WILL PERMIT ONLY THOSE ABRIDGMENTS OF PERSONAL BELIEFS AND
ASSOCIATIONS BY COMMITTEE INQUIRY THAT THE COURT BELIEVES SO IMPORTANT
IN TERMS OF THE NEED OF THE COMMITTEE FOR INFORMATION THAT SUCH NEED
OUTWEIGHS THE FIRST AMENDMENT RIGHTS OF THE WITNESS AND THE PUBLIC. 
(FN10)  FOR MY PART, I NEED LOOK NO FURTHER THAN THIS VERY CASE TO SEE
HOW LITTLE PROTECTION THIS HIGH-SOUNDING SLOGAN REALLY AFFORDS.  FOR IN
THIS CASE THE MAJORITY IS HOLDING THAT THE INTEREST OF THE COMMITTEE IN
THE INFORMATION SOUGHT OUTWEIGHS THAT OF THE WITNESS AND THE PUBLIC IN
FREE DISCUSSION WHILE, AT THE SAME TIME, IT DISCLAIMS ANY POWER TO
DETERMINE WHETHER THE COMMITTEE IS IN FACT INTERESTED IN THE
INFORMATION AT ALL.  THE TRUTH OF THE MATTER IS THAT THE BALANCING
TEST, AT LEAST AS APPLIED TO DATE, MEANS THAT THE COMMITTEE MAY ENGAGE
IN ANY INQUIRY A MAJORITY OF THIS COURT HAPPENS TO THINK COULD POSSIBLY
BE FOR A LEGITIMATE PURPOSE WHETHER THAT "PURPOSE" BE THE TRUE REASON
FOR THE INQUIRY OR NOT.  AND UNDER THE TEST OF LEGITIMACY THAT ARE USED
IN THIS AREA, ANY FIRST-YEAR LAW SCHOOL STUDENT WORTH HIS SALT COULD
CONSTRUCT A RATIONALIZATION TO JUSTIFY ALMOST ANY QUESTION PUT TO ANY
WITNESS AT ANY TIME. 

THUS, IN MY VIEW, THE CONCLUSION IS INESCAPABLE THAT THE ONLY REAL
LIMITATION UPON THE COMMITTEE'S POWER TO HARASS ITS OPPONENTS IS THE
COMMITTEE'S OWN SELF-RESTRAINT, A CHARACTERISTIC WHICH PROBABLY HAS NOT
BEEN PREDOMINANT IN THE COMMITTEE'S WORK OVER THE PAST FEW YEARS.  THE
RESULT OF ALL THIS IS THAT FROM NOW ON ANYONE WHO TAKES A PUBLIC
POSITION CONTRARY TO THAT BEING URGED BY THE HOUSE UN-AMERICAN
ACTIVITIES COMMITTEE SHOULD REALIZE THAT HE RUNS THE RISK OF BEING
SUBPOENAED TO APPEAR AT A HEARING IN SOME FAR OFF PLACE, OF BEING
QUESTIONED WITH REGARD TO EVERY MINUTE DETAIL OF HIS PAST LIFE, OF
BEING ASKED TO REPEAT ALL THE GOSSIP HE MAY HAVE HEARD ABOUT ANY OF HIS
FRIENDS AND ACQUAINTANCES, OF BEING ACCUSED BY THE COMMITTEE OF
MEMBERSHIP IN THE COMMUNIST PARTY, OF BEING HELD UP TO THE PUBLIC AS A
SUBVERSIVE AND A TRAITOR, OF BEING JAILED FOR CONTEMPT IF HE REFUSES TO
COOPERATE WITH THE COMMITTEE IN ITS PROBE OF HIS MIND AND ASSOCIATIONS,
AND OF BEING BRANDED BY HIS NEIGHBORS, EMPLOYER AND ERSTWHILE FRIENDS
AS A MENACE TO SOCIETY REGARDLESS OF THE OUTCOME OF THAT HEARING.  WITH
SUCH A POWERFUL WEAPON IN ITS HANDS, IT SEEMS QUITE LIKELY THAT THE
COMMITTEE WILL WEATHER ALL CRITICISM, EVEN THOUGH JUSTIFIABLE, THAT MAY
BE DIRECTED TOWARD IT.  FOR THERE ARE NOT MANY PEOPLE IN OUR SOCIETY
WHO WILL HAVE THE COURAGE TO SPEAK OUT AGAINST SUCH A FORMIDABLE
OPPONENT.  BUT CF. UPHAUS V. WYMAN, 364 U.S. 388.  IF THE PRESENT TREND
CONTINUES, THIS ALREADY SMALL NUMBER WILL NECESSARILY DWINDLE AS THEIR
RANKS ARE THINNED BY THE JAILS.  GOVERNMENT BY CONSENT WILL DISAPPEAR
TO BE REPLACED BY GOVERNMENT BY INTIMIDATION BECAUSE SOME PEOPLE ARE
AFRAID THAT THIS COUNTRY CANNOT SURVIVE UNLESS CONGRESS HAS THE POWER
TO SET ASIDE THE FREEDOMS OF THE FIRST AMENDMENT AT WILL. 

I CAN ONLY REITERATE MY FIRM CONVICTION THAT THESE PEOPLE ARE
TRAGICALLY WRONG.  THIS COUNTRY WAS NOT BUILT BY MEN WHO WERE AFRAID
AND IT CANNOT BE PRESERVED BY SUCH MEN.  (FN11)  OUR CONSTITUTION, IN
UNEQUIVOCAL TERMS, GIVES THE RIGHT TO EACH OF US TO SAY WHAT WE THINK
WITHOUT FEAR OF THE POWER OF THE GOVERNMENT.  THAT PRINCIPLE HAS SERVED
US SO WELL FOR SO LONG THAT I CANNOT BELIEVE IT NECESSARY TO ALLOW ANY
GOVERNMENTAL GROUP TO REJECT IT IN ORDER TO PRESERVE ITS OWN
EXISTENCE.  LEAST OF ALL DO I BELIEVE THAT SUCH A PRIVILEGE SHOULD BE
ACCORDED THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE.  FOR I BELIEVE
THAT TRUE AMERICANISM IS TO BE PROTECTED, NOT BY COMMITTEES THAT
PERSECUTE UNORTHODOX MINORITIES, BUT BY STRICT ADHERENCE TO BASIC
PRINCIPLES OF FREEDOM THAT ARE RESPONSIBLE FOR THIS NATION'S
GREATNESS.  THOSE PRINCIPLES ARE EMBODIED FOR ALL WHO CARE TO SEE IN
OUR BILL OF RIGHTS.  THEY WERE PUT THERE FOR THE SPECIFIC PURPOSE OF
PREVENTING JUST THE SORT OF GOVERNMENTAL SUPPRESSION OF CRITICISM THAT
THE MAJORITY UPHOLDS HERE.  THEIR INEFFECTIVENESS TO THAT END STEMS,
NOT FROM ANY LACK OF PRECISION IN THE STATEMENT OF THE PRINCIPLES, BUT
FROM THE REFUSAL OF THE MAJORITY TO APPLY THOSE PRINCIPLES AS PRECISELY
STATED.  FOR THE PRINCIPLES OF THE FIRST AMENDMENT ARE STATED IN
PRECISE AND MANDATORY TERMS AND UNLESS THEY ARE APPLIED IN THOSE TERMS,
THE FREEDOMS OF RELIGION, SPEECH, PRESS, ASSEMBLY AND PETITION WILL
HAVE NO EFFECTIVE PROTECTION.  WHERE THESE FREEDOMS ARE LEFT TO DEPEND
UPON A BALANCE TO BE STRUCK BY THIS COURT IN EACH PARTICULAR CASE,
LIBERTY CANNOT SURVIVE.  FOR UNDER SUCH A RULE, THERE ARE NO
CONSTITUTIONAL RIGHTS THAT CANNOT BE "BALANCED" AWAY. 

FN1  IN MY DISSENTING OPINION IN BARENBLATT V. UNITED STATES, 360
U.S. 109, 153-166, I SET OUT THE EVIDENCE FROM THE COMMITTEE'S OWN
REPORTS WHICH INDICATES THE COMMITTEE'S REAL PURPOSE IN CONDUCTING THIS
KIND OF HEARING. 

FN2  DURING THE PAST SEVERAL YEARS, THE PETITIONER APPEARS TO HAVE
BEEN ASSOCIATED WITH AT LEAST THREE DIFFERENT ORGANIZATIONS THAT HAD AS
THEIR PRIMARY AIM THE ABOLITION OF THE UN-AMERICAN ACTIVITIES
COMMITTEE.  IN ADDITION TO HIS ASSOCIATION WITH THE EMERGENCY CIVIL
LIBERTIES COMMITTEE, WHICH IS SHOWN BY THIS RECORD, PETITIONER SEEMS TO
HAVE BEEN ASSOCIATED WITH SIMILAR ORGANIZATIONS IN LOS ANGELES AND
CHICAGO.  AT LEAST HE WAS ACCUSED OF SUCH ASSOCIATIONS WHEN HE WAS
CALLED BEFORE A PREVIOUS HEARING OF THE COMMITTEE IN 1956.  SEE
HEARINGS BEFORE THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES, 84TH
CONG., 2D SESS., AT LOS ANGELES, CALIFORNIA, DECEMBER 5-8, 1956,
ENTITLED "COMMUNIST POLITICAL SUBVERSION, PART I," PP. 6747-6753. 

FN3  SIGNIFICANTLY, THE PETITIONER WAS NEVER TOLD, NOR DOES THE
RECORD DISCLOSE FOR OUR CONSIDERATION HERE, EITHER THE SOURCE OR THE
NATURE OF THE ALLEGED INFORMATION REFERRED TO. 

FN4  360 U.S. 109. 

FN5  I AGREE WITH THE MAJORITY THAT, IN A SENSE, "THESE
CIRCUMSTANCES, HOWEVER, DO NOT NECESSARILY LEAD TO THE CONCLUSION THAT
THE SUBCOMMITTEE'S INTENT WAS PERSONAL PERSECUTION OF THE PETITIONER",
BUT I AM SATISFIED THAT THE EVIDENCE, THOUGH NOT ABSOLUTELY CONCLUSIVE,
IS OVERWHELMING. 

FN6  THE "EVIDENCE" RELIED UPON BY THE COMMITTEE IS CONTAINED IN THE
FOLLOWING COLLOQUY BETWEEN THE INFORMANT, A MRS. SCHNEIDER, AND THE
COMMITTEE COUNSEL, A MR. ARENS: 

"MR. ARENS.  WAS IT (THE CITIZENS COMMITTEE TO PRESERVE AMERICAN
FREEDOMS) COMMUNIST-CONTROLLED? 

"MRS. SCHNEIDER.  YES. 

"MR. ARENS.  WHO WAS THE RINGLEADER IN THAT ORGANIZATION? 

"MRS. SCHNEIDER.  I DIDN'T WORK IN THAT ORGANIZATION, AND I DON'T
KNOW WHO THE RINGLEADER WAS.  MY CONTACT ON THAT OCCASION WAS WITH
FRANK WILKINSON, I BELIEVE. 

"MR. ARENS.  DID YOU KNOW HIM AS A COMMUNIST? 

"MRS. SCHNEIDER.  YES."  HEARINGS BEFORE THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES, OP. CIT., SUPRA, NO. 2, AT 6730. 

FN7  THIS, OF COURSE, IS THE ESTABLISHED PRACTICE IN HEARINGS BEFORE
THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES. 

FN8  18 U.S.C. SEC. 3500. 

FN9  SEE, E.G., COMMUNIST PARTY OF THE UNITED STATES V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, 351 U.S. 115; MESAROSH V. UNITED STATES, 352
U.S. 1. 

FN10  THE TEST IS STATED BY THE MAJORITY IN ITS OPINION IN BARENBLATT
IN THE FOLLOWING TERMS: "WHERE FIRST AMENDMENT RIGHTS ARE ASSERTED TO
BAR GOVERNMENTAL INTERROGATION RESOLUTION OF THE ISSUE ALWAYS INVOLVES
A BALANCING BY THE COURTS OF THE COMPETING PRIVATE AND PUBLIC INTERESTS
AT STAKE IN THE PARTICULAR CIRCUMSTANCES SHOWN."  360 U.S., AT 126. 
CF. AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382; BEAUHARNAIS
V. ILLINOIS, 343 U.S. 250. 

FN11  MR. JUSTICE BRANDEIS MADE THIS VERY POINT IN HIS CONCURRING
OPINION IN WHITNEY V. CALIFORNIA, WHERE HE SAID:  "THOSE WHO WON OUR
INDEPENDENCE BELIEVED THAT THE FINAL END OF THE STATE WAS TO MAKE MEN
FREE TO DEVELOP THEIR FACULTIES; AND THAT IN ITS GOVERNMENT THE
DELIBERATIVE FORCES SHOULD PREVAIL OVER THE ARBITRARY.  THEY VALUED
LIBERTY BOTH AS AN END AND AS A MEANS.  THEY BELIEVED LIBERTY TO BE THE
SECRET OF HAPPINESS AND COURAGE TO BE THE SECRET OF LIBERTY."  274 U.S.
357, 375.  MR. JUSTICE BRANDEIS DOUBTLESS HAD IN MIND, AND INDEED MADE
SPECIFIC REFERENCE TO, THE FAMOUS WORDS IN THOMAS JEFFERSON'S FIRST
INAUGURAL ADDRESS:  "IF THERE BE ANY AMONG US WHO WOULD WISH TO
DISSOLVE THIS UNION OR CHANGE ITS REPUBLICAN FORM, LET THEM STAND
UNDISTURBED AS MONUMENTS OF THE SAFETY WITH WHICH ERROR OF OPINION MAY
BE TOLERATED WHERE REASON IS LEFT FREE TO COMBAT IT." 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

WHEN PETITIONER WAS SUMMONED BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON UN-AMERICAN ACTIVITIES IN ATLANTA, GEORGIA, THE STAFF
DIRECTOR FOR THE COMMITTEE MADE THE FOLLOWING STATEMENT TO HIM: 

"IT IS THE INFORMATION OF THE COMMITTEE OR THE SUGGESTION OF THE
COMMITTEE THAT IN ANTICIPATION OF THE HEARINGS HERE IN ATLANTA,
GEORGIA, YOU WERE SENT TO THIS AREAS BY THE COMMUNIST PARTY FOR THE
PURPOSE OF DEVELOPING A HOSTILE SENTIMENT TO THIS COMMITTEE AND TO ITS
WORK FOR THE PURPOSE OF UNDERTAKING TO BRING PRESSURE UPON THE UNITED
STATES CONGRESS TO PRECLUDE THESE PARTICULAR HEARINGS.   INDEED IT IS
THE FACT THAT YOU WERE NOT EVEN SUBPENAED FOR THESE PARTICULAR HEARINGS
UNTIL WE LEARNED THAT YOU WERE IN TOWN FOR THAT VERY PURPOSE AND THAT
YOU WERE NOT SUBPENAED TO APPEAR BEFORE THIS COMMITTEE UNTIL YOU HAD
ACTUALLY REGISTERED IN THE HOTEL HERE IN ATLANTA. 

"NOW, SIR, IF YOU WILL TELL THIS COMMITTEE WHETHER OR NOT, WHILE YOU
ARE UNDER OATH, YOU ARE NOW A COMMUNIST, WE INTEND TO PURSUE THAT AREA
OF INQUIRY AND UNDERTAKE TO SOLICIT FROM YOU INFORMATION RESPECTING
YOUR ACTIVITIES AS A COMMUNIST ON BEHALF OF THE COMMUNIST PARTY, WHICH
IS TIED UP DIRECTLY WITH THE KREMLIN; YOUR ACTIVITIES FROM THE
STANDPOINT OF PROPAGANDA; YOUR ACTIVITIES FROM THE STANDPOINT OF
UNDERTAKING TO DESTROY THE FEDERAL BUREAU OF INVESTIGATION AND THE
COMMITTEE ON UN-AMERICAN ACTIVITIES, BECAUSE INDEED THIS COMMITTEE
ISSUED A REPORT ENTITLED 'OPERATION ABOLITION,' IN WHICH WE TOLD
SOMETHING, THE INFORMATION WE THEN POSSESSED, RESPECTING THE EFFORTS OF
THE EMERGENCY CIVIL LIBERTIES COMMITTEE, OF WHICH YOU ARE THE GUIDING
LIGHT, TO DESTROY THE F.B.I. AND DISCREDIT THE DIRECTOR OF THE F.B.I.
AND TO UNDERTAKE TO HAMSTRING THE WORK OF THIS COMMITTEE ON UN-AMERICAN
ACTIVITIES. 

"SO IF YOU WILL ANSWER THAT PRINCIPAL QUESTION, I INTEND TO PURSUE
THE OTHER QUESTIONS WITH YOU TO SOLICIT INFORMATION WHICH WOULD BE OF
INTEREST - WHICH WILL BE OF VITAL NECESSITY, INDEED - TO THIS COMMITTEE
IN UNDERTAKING TO DEVELOP LEGISLATION TO PROTECT THE UNITED STATES OF
AMERICA UNDER WHOSE FLAG YOU, SIR, HAVE PROTECTION. 

"NOW PLEASE ANSWER THE QUESTION:  ARE YOU NOW A MEMBER OF THE
COMMUNIST PARTY?" 

PETITIONER ANSWERED, "I AM REFUSING TO ANSWER ANY QUESTIONS OF THIS
COMMITTEE." 

AFTER A FURTHER EXPLANATION HE WAS DIRECTED TO ANSWER.  HE REPLIED: 

"I HAVE THE UTMOST RESPECT FOR THE BROAD POWERS WHICH THE CONGRESS OF
THE UNITED STATES MUST HAVE TO CARRY ON ITS INVESTIGATIONS FOR
LEGISLATIVE PURPOSES.  HOWEVER, THE UNITED STATES SUPREME COURT HAS
HELD THAT, BROAD AS THESE POWERS MAY BE, THE CONGRESS CANNOT
INVESTIGATE INTO AN AREA WHERE IT CANNOT LEGISLATE, AND THIS COMMITTEE
TENDS, BY ITS MANDATE AND BY ITS PRACTICES, TO INVESTIGATE INTO
PRECISELY THOSE AREAS OF FREE SPEECH, RELIGION, PEACEFUL ASSOCIATION
AND ASSEMBLY, AND THE PRESS, WHEREIN IT CANNOT LEGISLATE AND THEREFORE
IT CANNOT INVESTIGATE."  (FN1) 

THE COMMITTEE (FN2) IS AUTHORIZED BY THE RESOLUTION GOVERNING IT TO
MAKE INVESTIGATIONS OF "THE EXTENT, CHARACTER, AND OBJECTS OF UN
AMERICAN PROPAGANDA ACTIVITIES IN THE UNITED STATES." 

IF IT IS "UN-AMERICAN" TO CRITICIZE, IMPEACH, AND BERATE THE
COMMITTEE AND TO SEEK TO HAVE IT ABOLISHED, THEN THE COMMITTEE ACTED
WITHIN THE SCOPE OF ITS AUTHORITY IN ASKING THE QUESTIONS.  BUT WE TAKE
A DANGEROUS LEAP WHEN WE REACH THE CONCLUSION THAT CRITICISM OF THE
COMMITTEE WAS WITHIN THE SCOPE OF THE RESOLUTION. 

CRITICISM OF GOVERNMENT FINDS SANCTUARY IN SEVERAL PORTIONS OF THE
FIRST AMENDMENT.  IT IS PART OF THE RIGHT OF FREE SPEECH.  IT EMBRACES
FREEDOM OF THE PRESS.  CAN EDITORS BE SUMMONED BEFORE THE COMMITTEE AND
BE MADE TO ACCOUNT FOR THEIR EDITORIALS DENOUNCING THE COMMITTEE, ITS
TACTICS, ITS PRACTICES, ITS POLICIES?  IF PETITIONER CAN BE QUESTIONED
CONCERNING HIS OPPOSITION TO THE COMMITTEE, THEN I SEE NO REASON WHY
EDITORS ARE IMMUNE.  THE LIST OF EDITORS WILL BE LONG AS IS EVIDENT
FROM THE EDITORIAL PROTESTS AGAINST THE COMMITTEE'S ACTIVITIES, (FN3)
INCLUDING ITS RECENT FILM, OPERATING ABOLITION.  (FN4) 

THE FIRST AMENDMENT RIGHTS INVOLVED HERE ARE MORE THAN FREEDOM OF
SPEECH AND PRESS.  BRINGING PEOPLE TOGETHER IN PEACEABLE ASSEMBLIES IS
IN THE SAME CATEGORY.  DE JONGE V. OREGON, 299 U.S. 353.   "THE RIGHT
OF PEACEABLE ASSEMBLY IS A RIGHT COGNATE TO THOSE OF FREE SPEECH AND
FREE PRESS AND IS EQUALLY FUNDAMENTAL."  ID., AT 364.  THE RIGHT TO
PETITION "FOR A REDRESS OF GRIEVANCES" IS ALSO PART OF THE FIRST
AMENDMENT; IT TOO IS FUNDAMENTAL TO "THE VERY IDEA OF A GOVERNMENT
REPUBLICAN IN FORM."  UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 552. 
CHIEF JUSTICE HUGHES, SPEAKING FOR THE COURT IN THE DE JONGE CASE
INVOLVING COMMUNIST ACTIVITIES NO MORE NOR LESS LAWFUL THAN THOSE
CHARGED HERE, SAID: 

"THE GREATER THE IMPORTANCE OF SAFEGUARDING THE COMMUNITY FROM
INCITMENTS TO THE OVERTHROW OF OUR INSTITUTIONS BY FORCE AND VIOLENCE,
THE MORE IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE THE
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN
ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE
END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND
THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN
LIES THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF
CONSTITUTIONAL GOVERNMENT."  DE JONGE V. OREGON, SUPRA, AT 365. 

THESE ARE REASONS WHY I WOULD CONSTRUE THE RESOLUTION NARROWLY SO AS
TO EXCLUDE CRITICISM OF THE COMMITTEE.  WE HAVE CUSTOMARILY DONE JUST
THAT, INSISTING THAT IF "AN INQUIRY OF DUBIOUS LIMITS" IS TO BE FOUND
IN AN ACT OR RESOLUTION, CONGRESS SHOULD UNEQUIVOCALLY AUTHORIZE IT.
UNITED STATES V. RUMELY, 345 U.S. 41, 46; UNITED STATES V. HARRISS, 347
U.S. 612; WATKINS V. UNITED STATES, 354 U.S. 178, 198. 

THE INDICTMENT CHARGED ONLY THE FAILURE TO ANSWER THE ONE QUESTION,
"ARE YOU NOW A MEMBER OF THE COMMUNIST PARTY?"  THAT QUESTION IN OTHER
CONTEXTS MIGHT WELL HAVE BEEN APPROPRIATE.  WE HAVE HERE, HOWEVER, AN
INVESTIGATION WHOSE CENTRAL AIM WAS FINDING OUT WHAT CRITICISM A
CITIZEN WAS MAKING OF THE GOVERNMENT.  THAT WAS THE GIST OF THE CASE
PRESENTED TO THE JURY.  (FN5) 

WE CANNOT ALLOW THIS MAN TO GO TO PRISON FOR 12 MONTHS UNLESS WE HOLD
THAT AN INVESTIGATION OF THOSE WHO CRITICIZE THE UN-AMERICAN ACTIVITIES
COMMITTEE WAS BOTH AUTHORIZED AND CONSTITUTIONAL.  I CANNOT READ THE
RESOLUTION AS AUTHORIZING THAT KIND OF INVESTIGATION WITHOUT ASSUMING
THAT THE CONGRESS INTENDED TO FLOUT THE FIRST AMENDMENT. 

FN1  THE WASHINGTON POST ON JANUARY 4, 1961, MADE A SIMILAR CRITICISM
OF THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES: 

"THE COMMITTEE OFTEN FUNCTIONS AS A KIND OF PUBLIC PILLORY TO PUNISH
MEN BY PUBLICITY FOR OFFENSES WHICH THE CONSTITUTION FORBIDS CONGRESS
TO MAKE PUNISHABLE BY LAW.  IT 'EXPOSES' MEN WHO EXPRESS OPINIONS OR
INDULGE IN ASSOCIATIONS OF WHICH THE COMMITTEE DISAPPROVES, CARELESSLY
CALLING THEM - OR ALLOWING WITNESSES UNDER THE CLOAK OF CONGRESSIONAL
IMMUNITY TO CALL THEM - COMMUNISTS OR COMMUNIST-SYMPATHIZERS OR
COMMUNIST DUPES. 

"THE COMMITTEE, AS A CONSEQUENCE OF THIS CONDUCT, SOMETIMES OPERATES
AS A SERIOUS RESTRAINT ON FREEDOM OF EXPRESSION AND FREEDOM OF
ASSOCIATION.  IT MAKES AMERICANS FEARFUL OF UTTERING OPINIONS FOR WHICH
THEY MAY BE CALLED TO ACCOUNT BY THE COMMITTEE AND FEARFUL OF JOINING
ORGANIZATIONS WHICH THE COMMITTEE MAY CONSIDER SUBVERSIVE." 

FN2  THE ULTIMATE MANDATE OF THE PARENT COMMITTEE AT THE TIME OF THE
SUBCOMMITTEE HEARING WAS TO BE FOUND IN PARAGRAPH 17(B), RULE XI, RULES
OF THE HOUSE OF REPRESENTATIVES, H. RES. 5, 85TH CONG., 1ST SESS., 60
STAT. 828.  IT PROVIDES:  "THE COMMITTEE ON UN-AMERICAN ACTIVITIES, AS
A WHOLE OR BY SUBCOMMITTEE, IS AUTHORIZED TO MAKE FROM TIME TO TIME
INVESTIGATIONS OF (I) THE EXTENT, CHARACTER, AND OBJECTS OF UN-AMERICAN
PROPAGANDA ACTIVITIES IN THE UNITED STATES, (II) THE DIFFUSION WITHIN
THE UNITED STATES OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT IS
INSTIGATED FROM FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN AND ATTACKS
THE PRINCIPLE OF THE FORM OF GOVERNMENT AS GUARANTEED BY OUR
CONSTITUTION, AND (III) ALL OTHER QUESTIONS IN RELATION THERETO THAT
WOULD AID CONGRESS IN ANY NECESSARY REMEDIAL LEGISLATION."  THE RECORD
IN THIS CASE ALSO CONTAINS THE MANDATE OF THE SUBCOMMITTEE (SEE NOTE 5,
INFRA), BUT THE TERMS OF THE PARENT COMMITTEE'S MANDATE ARE OF COURSE
CONTROLLING.  OF THE PURPOSES OF THE COMMITTEE, ONLY THE INVESTIGATION
OF "UN-AMERICAN PROPAGANDA" ACTIVITIES SEEMS EVEN ARGUABLY TO AUTHORIZE
THE QUESTIONS ASKED AND THE INQUIRY PURSUED IN THIS CASE. 

FN3  SEE NOTE 1, SUPRA. 

FN4  THE WASHINGTON POST SAID EDITORIALLY ON DECEMBER 28, 1960: 

"IN HIS LETTERS PRINTED ELSEWHERE IN THIS NEWSPAPER TODAY, REP.
FRANCIS WALTER ASSERTS THAT THE FILM OPERATION ABOLITION 'CONTAINS
ABSOLUTELY NO DISTORTIONS' AND THAT THE STAFF MEMBER WHO HAD ADMITTED
IT CONTAINED SUCH DEFECTS 'HAD NOT HIMSELF USED THE WORD
"DISTORTIONS."'  IN A TELEVISION SHOW OVER KCOP-TV, LOS ANGELES, A
TEACHING ASSISTANT AT THE UNIVERSITY OF CALIFORNIA REFERRED TO
DISTORTIONS IN THE FILM.  WILLIAM WHEELER, AN INVESTIGATOR FOR THE
HOUSE UN-AMERICAN ACTIVITIES COMMITTEE, TAKING PART IN THE PROGRAM
ASKED, 'WHAT ARE YOU TRYING TO PROVE BY THIS?'  THE FOLLOWING EXCHANGE
THEN TOOK PLACE:    "MR. WHITE:  THAT THE FILM HAS INACCURACIES AND
DISTORTIONS. 

"MR. WHEELER:  I'VE ADMITTED THAT. 

"MR. WHITE:  YOU'VE ADMITTED THAT" 

"MR. WHEELER:  CERTAINLY. 

"MR. WALTER OFFERS SOME CAREFULLY SELECTED QUOTES FROM THE SAN
FRANCISCO PRESS TO REFUTE THIS NEWSPAPER'S ASSERTION THAT THE SAN
FRANCISCO POLICE 'REACTED WITH ALTOGETHER NEEDLESS FEROCITY.'  LIKE THE
FILM OPERATION ABOLITION ITSELF, HE OMITS ALL THE MATERIAL SHOWING THE
OTHER SIDE OF THE PICTURE.  FOR INSTANCE, SAN FRANCISCO CHRONICLE
REPORTER GEORGE DRAPER WROTE: 

"'I DID NOT SEE ANY OF THE KIDS ACTUALLY FIGHTING WITH THE POLICE. 
THEIR RESISTANCE WAS MORE PASSIVE.  THEY WOULD SIMPLY GO LIMP AND BE
MANHANDLED OUT OF THE BUILDING  ...  .  I SAW ONE SLIGHTLY BUILT LAD
BEING CARRIED BY TWO HUSKY OFFICERS.  ONE HELD THE BOY'S SHIRT, THE
OTHER HAD HIM BY THE FEET.  HE WAS STRUGGLING, BUT HE WAS NO MATCH FOR
THE TWO BIGGER MEN.  THEN FROM NOWHERE APPEARED A THIRD OFFICER.  HE
RAN UP TO THE SLENDER BOY FIRMLY HELD BY THE OTHER TWO OFFICERS AND
CLUBBED HIM THREE TIMES ON THE HEAD.  YOU COULD HEAR THE HOLLOW SMACK
OF THE CLUB STRIKING.  THE BOY WENT LIMP AND WAS CARRIED OUT.' 

"NOR DOES MR. WALTER MENTION THE REPORT OF ANOTHER EYEWITNESS, MEL
WAX, A SPECIAL CORRESPONDENT OF THE NEW YORK POST. 

"'NEVER, IN 20 YEARS AS A REPORTER, HAVE I SEEN SUCH BRUTALITY  ...
.  SAN FRANCISCO POLICE HURLED WOMEN DOWN THE STAIRCASE, SPINES BUMPING
ON EACH MARBLE STAIR.' 

"TO MR. WALTER, IT IS AN ADMITTED BUT 'DECIDEDLY MINOR' DISTORTION IN
THE FILM THAT HARRY BRIDGES WAS REPRESENTED AS BEING ON THE SCENE JUST
BEFORE THE RIOTING BROKE OUT WHEN, IN POINT OF FACT, HE DID NOT ARRIVE
UNTIL AFTER IT WAS ALL OVER.  'HONEST' THIS ERROR MAY HAVE BEEN; BUT IT
WAS MORE THAN UNFORTUNATE.  FOR IT CONTRIBUTED CONSIDERABLY TO THE
DECEPTIVE AND DISTORTED MESSAGE OF THE FILM THAT THE STUDENT
DEMONSTRATION WAS INSPIRED AND LED BY COMMUNISTS. 

"COMMUNISTS MAY HAVE TRIED TO CLAIM THE CREDIT WHICH MR. WALTER
ACCORDS THEM.  UNQUESTIONABLY THE AFFAIR GOT OUT OF HAND, AND NO ONE
CONDONES THE ROWDINESS THAT ENSUED.  BUT THE TRUTH IS THAT THE
DEMONSTRATION WAS INSPIRED BY DISTASTE FOR THE UN-AMERICAN ACTIVITIES
COMMITTEE.  AND IT WAS LED BY STUDENTS WHO INTENDED NOTHING MORE THAN
AN ORDERLY PROTEST - AN INALIENABLE POLITICAL RIGHT IN THE UNITED
STATES." 

FN5  AT THE TRIAL COMMITTEE COUNSEL WAS CROSS-EXAMINED AS FOLLOWS: 

"Q.  MR. ARENS, YOU STATED BEFORE THE COMMITTEE THAT MR. WILKINSON
HAD COME TO ATLANTA TO STIR UP HOSTILITY TO THE COMMITTEE, THAT HE WAS
DOING EVERYTHING HE COULD TO PREVENT THESE HEARINGS FROM BEING HELD IN
ATLANTA? 

"A.  YES, SIR. 

"Q.  AND THAT YOU DID NOT SUBPOENA HIM UNTIL YOU DISCOVERED THAT HE
HAD ARRIVED HERE FOR THAT PURPOSE? 

"A.  THAT'S CORRECT, SIR. 

"Q.  NOW, YOU STATE THAT WITHIN THE THREE GENERAL CATEGORIES UNDER
WHICH THE COMMITTEE WAS HOLDING HEARINGS HERE OF COLONIZATION IN THE
TEXTILE INDUSTRY, ENTRY AND DISSEMINATION OF FOREIGN PROPAGANDA AND
COMMUNIST PARTY PROPAGANDA ACTIVITY IN THE SOUTH, YOU ARE STATING THAT
MR. WILKINSON STIRRING UP HOSTILITY TO THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES COMES WITHIN THE CATEGORY OF COMMUNIST PARTY
PROPAGANDA ACTIVITY WHICH JUSTIFIED THE HOUSE COMMITTEE TO SUBPOENA HIM
AND QUESTION HIM, IS THAT CORRECT?  I JUST WANT TO UNDERSTAND YOUR
POSITION. 

"A.  YES, IN GENERAL I AGREE WITH YOU, YES." 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

FOR THE REASONS STATED IN MY BROTHER DOUGLAS' DISSENTING OPINION IN
BRADEN V. UNITED STATES, POST, P. 446, WHICH I JOINED, I BELIEVE THAT
THE COMMITTEE FAILED TO LAY AN ADEQUATE FOUNDATION AT THE HEARING FOR
QUESTIONS WHICH, IT WAS CLAIMED, CONCERNED THE EXERCISE OF RIGHTS
PROTECTED BY THE FIRST AMENDMENT. 

I ALSO DISSENT BECAUSE ON THESE FACTS THE INFERENCE IS INESCAPABLE
THAT THE DOMINANT PURPOSE OF THESE QUESTIONS WAS NOT TO GATHER
INFORMATION IN AID OF LAW MAKING OR LAW EVALUATION BUT RATHER TO HARASS
THE PETITIONER AND EXPOSE HIM FOR THE SAKE OF EXPOSURE.  A SCANT 19
MONTHS BEFORE THE HEARING IN QUESTION PETITIONER WAS SUMMONED BEFORE
THIS VERY COMMITTEE AND REFUSED TO ANSWER QUESTIONS ON SUBSTANTIALLY
THE SAME GROUNDS AS THOSE HE CLAIMED IN THIS INSTANCE.  NOR DID HIS
CONDUCT IN THE INTERIM AFFORD ANY BASIS FOR A HOPE THAT HE MIGHT HAVE
REPENTED, AN INFERENCE WHICH, BY CONTRAST, WAS POSSIBLE IN FLAXER V.
UNITED STATES, 358 U.S. 147, 151, CITED BY THE GOVERNMENT.  FOR
PETITIONER CONTINUED TO PROCLAIM HIS HOSTILITY TO THE COMMITTEE AND HIS
BELIEF THAT IT HAD NO POWER TO PROBE AREAS OF FREE EXPRESSION.  HE WAS
NOT EVEN CALLED TO TESTIFY AT THESE HEARINGS IN ATLANTA UNTIL THE
COMMITTEE LEARNED THAT HE WAS TO BE PRESENT IN ATLANTA TO EXPRESS HIS
OPPOSITION TO THE COMMITTEE'S WORK, AS, OF COURSE, HE HAD A RIGHT TO
DO.  IN FACT, THE COMMITTEE'S STAFF DIRECTOR CAME PERILOUSLY CLOSE TO
ADMITTING, ON CROSS-EXAMINATION BY PETITIONER'S COUNSEL, THAT
PETITIONER WAS CALLED TO THE STAND ONLY BECAUSE OF HIS OPPOSITION TO
THE COMMITTEE'S ACTIVITIES. 

IT IS PARTICULARLY IMPORTANT THAT CONGRESSIONAL COMMITTEES CONFINE
THEMSELVES TO THE FUNCTION OF GATHERING INFORMATION WHEN THEIR
INVESTIGATION BEGINS TO TOUCH THE REALM OF SPEECH AND OPINION.  ON THIS
RECORD, I CANNOT HELP CONCLUDING THAT THE COMMITTEE HAD NO REASONABLE
PROSPECT THAT PETITIONER WOULD ANSWER ITS QUESTIONS, AND ACCORDINGLY
THAT THE COMMITTEE'S PURPOSE COULD NOT HAVE BEEN THE LEGITIMATE ONE OF
FACT GATHERING.  I AM FORCED TO THE VIEW THAT THE QUESTIONS ASKED OF
PETITIONER WERE THEREFORE NOT WITHIN THE COMMITTEE'S POWER.  CF.
BARENBLATT V. UNITED STATES, 360 U.S. 109, 166 (DISSENTING OPINION);
UPHAUS V. WYMAN, 360 U.S. 72, 82 (DISSENTING OPINION).  I WOULD
REVERSE. 
..END :





















BRADEN V. UNITED STATES 365 U.S. 431 


NO. 54.  ARGUED NOVEMBER 17, 1960 - DECIDED FEBRUARY 27, 1961 - 272 F.2D
653, AFFIRMED. 


SUMMONED TO TESTIFY BEFORE A SUBCOMMITTEE OF THE HOUSE OF
REPRESENTATIVES COMMITTEE ON UN-AMERICAN ACTIVITIES, WHICH WAS
INVESTIGATING COMMUNIST INFILTRATION INTO BASIC INDUSTRIES IN THE SOUTH
AND COMMUNIST PARTY PROPAGANDA ACTIVITIES IN THE SOUTH, PETITIONER
REFUSED TO ANSWER MANY OF THE QUESTIONS DIRECTED TO HIM.  HE DID NOT
CLAIM HIS PRIVILEGE AGAINST SELF-INCRIMINATION BUT CONTENDED THAT THE
QUESTIONS WERE NOT PERTINENT TO A QUESTION UNDER INQUIRY BY THE
SUBCOMMITTEE AND THAT ITS QUESTIONING VIOLATED HIS RIGHTS UNDER THE
FIRST AMENDMENT.  FOR REFUSING TO ANSWER, HE WAS CONVICTED OF A
VIOLATION OF 2 U.S.C. SEC. 192, WHICH MAKES IT A MISDEMEANOR FOR ANY
PERSON SUMMONED AS A WITNESS BY EITHER HOUSE OF CONGRESS OR A COMMITTEE
THEREOF TO REFUSE TO ANSWER ANY QUESTION PERTINENT TO THE QUESTION
UNDER INQUIRY.  HELD:  PETITIONER'S CONVICTION IS SUSTAINED.  PP. 432
438. 

1.  ON THE RECORD, THE SUBJECTS UNDER INVESTIGATION BY THE
SUBCOMMITTEE WHEN PETITIONER WAS INTERROGATED WERE COMMUNIST
INFILTRATION INTO BASIC SOUTHERN INDUSTRIES AND COMMUNIST PARTY
PROPAGANDA ACTIVITIES IN THE SOUTH; THE SUBCOMMITTEE'S INVESTIGATION OF
THESE SUBJECTS WAS AUTHORIZED BY CONGRESS; THE INTERROGATION WAS
PERTINENT TO A QUESTION UNDER SUBCOMMITTEE INQUIRY; AND PETITIONER WAS
FULLY APPRISED OF ITS PERTINENCY.  WILKINSON V. UNITED STATES, ANTE, P.
399.  PP. 432-433. 

2.  THE SUBCOMMITTEE'S INQUIRY AS TO WHETHER THE PETITIONER HAD BEEN
A MEMBER OF THE COMMUNIST PARTY AT THE INSTANT WHEN HE AFFIXED HIS
SIGNATURE TO A LETTER URGING OPPOSITION TO CERTAIN BILLS IN CONGRESS
DID NOT VIOLATE HIS RIGHTS UNDER THE FIRST AMENDMENT.  BARENBLATT V.
UNITED STATES, 360 U.S. 109.  PP. 433-435. 

3.  IT WAS THE PROVINCE OF THE COURT, AND NOT OF THE JURY, TO DECIDE
WHETHER THE QUESTIONS ASKED BY THE SUBCOMMITTEE WERE PERTINENT TO THE
SUBJECT UNDER INQUIRY.  SINCLAIR V. UNITED STATES, 279 U.S. 263.  PP.
436-437. 

4.  THAT, IN REFUSING TO ANSWER THE QUESTIONS, PETITIONER RELIED UPON
HIS UNDERSTANDING OF PREVIOUS DECISIONS OF THIS COURT WAS NO DEFENSE. 
SINCLAIR V. UNITED STATES, SUPRA.  PP. 437-438. 

BRADEN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A COMPANION TO WILKINSON V. UNITED STATES, DECIDED
TODAY, ANTE, P. 399.  THE PETITIONER WAS THE WITNESS IMMEDIATELY
PRECEDING WILKINSON AT THE HEARING OF A SUBCOMMITTEE OF THE HOUSE UN
AMERICAN ACTIVITIES COMMITTEE, IN ATLANTA, GEORGIA, ON JULY 30, 1958. 
HE REFUSED TO ANSWER MANY OF THE QUESTIONS DIRECTED TO HIM, BASING HIS
REFUSAL UPON THE GROUNDS THAT THE QUESTIONS WERE NOT PERTINENT TO A
QUESTION UNDER INQUIRY BY THE SUBCOMMITTEE AND THAT THE INTERROGATION
INVADED HIS FIRST AMENDMENT RIGHTS.  HE WAS SUBSEQUENTLY INDICTED AND,
AFTER A JURY TRIAL, CONVICTED FOR HAVING VIOLATED 2 U.S.C. SEC. 192, IN
REFUSING TO ANSWER SIX SPECIFIC QUESTIONS WHICH HAD BEEN PUT TO HIM BY
THE SUBCOMMITTEE.  (FN1)  THE COURT OF APPEALS AFFIRMED, 272 F.2D 653,
RELYING ON BARENBLATT V. UNITED STATES, 360 U.S. 109, AND WE GRANTED
CERTIORARI, 362 U.S. 960. 

THE PRINCIPAL ISSUES RAISED BY THE PETITIONER ARE SUBSTANTIALLY
IDENTICAL TO THOSE CONSIDERED IN WILKINSON, AND EXTENDED DISCUSSION IS
NOT REQUIRED IN RESOLVING THEM.  BASED UPON THE SAME RECORD THAT WAS
BROUGHT HERE IN WILKINSON, WE CONCLUDE FOR THE REASONS STATED THERE
THAT THE SUBJECTS UNDER SUBCOMMITTEE INVESTIGATION AT THE TIME THE
PETITIONER WAS INTERROGATED WERE COMMUNIST INFILTRATION INTO BASIC
SOUTHERN INDUSTRY AND COMMUNIST PARTY PROPAGANDA ACTIVITIES IN THE
SOUTHERN PART OF THE UNITED STATES.  WE CONCLUDE FOR THE SAME REASONS
THAT THE SUBCOMMITTEE'S INVESTIGATION OF THESE SUBJECTS WAS AUTHORIZED
BY CONGRESS, THAT THE INTERROGATION WAS PERTINENT TO A QUESTION UNDER
SUBCOMMITTEE INQUIRY, (FN2) AND THAT THE PETITIONER WAS FULLY APPRISED
OF ITS PERTINENCY.  (FN3) 

IN ASSERTING A VIOLATION OF HIS FIRST AMENDMENT RIGHTS, THE
PETITIONER HERE POINTS OUT THAT HE WAS ASKED, NOT SIMPLY WHETHER HE WAS
OR HAD BEEN A COMMUNIST PARTY MEMBER, AS IN WILKINSON AND BARENBLATT,
SUPRA, BUT WHETHER HE WAS A MEMBER "THE INSTANT YOU AFFIXED YOUR
SIGNATURE TO THAT LETTER."  THE LETTER IN QUESTION, WHICH HAD
ADMITTEDLY BEEN SIGNED BY THE PETITIONER AND HIS WIFE, URGED OPPOSITION
TO CERTAIN BILLS IN CONGRESS.  THE PETITIONER EMPHASIZES THAT THE
WRITING OF SUCH A LETTER IS NOT ONLY LEGITIMATE BUT CONSTITUTIONALLY
PROTECTED ACTIVITY, AND POINTS TO OTHER EVIDENCE IN THE RECORD TO
INDICATE THAT HE HAD BEEN ACTIVE IN OTHER COMPLETELY LEGITIMATE
CAUSES.  (FN4) BASED UPON THESE CIRCUMSTANCES, HE ARGUES THAT THE
SUBCOMMITTEE DID NOT HAVE A PROPER LEGISLATIVE PURPOSE IN CALLING HIM
BEFORE IT, BUT THAT IT WAS BENT RATHER ON PERSECUTING HIM FOR PUBLICLY
OPPOSING THE SUBCOMMITTEE'S ACTIVITIES.  HE CONTENDS THAT UNDER SUCH
CIRCUMSTANCES AN INQUIRY INTO HIS PERSONAL AND ASSOCIATED CONDUCT
VIOLATED HIS FIRST AMENDMENT FREEDOMS.  ON THESE GROUNDS, THE
PETITIONER WOULD DIFFERENTIATE THE CONSTITUTIONAL ISSUES HERE FROM
THOSE THAT WERE BEFORE THE COURT IN BARENBLATT, SUPRA. 

BUT BARENBLATT DID NOT CONFINE CONGRESSIONAL COMMITTEE INVESTIGATION
TO OVERT CRIMINAL ACTIVITY, NOR DID THAT CASE DETERMINE THAT CONGRESS
CAN ONLY INVESTIGATE THE COMMUNISTY PARTY ITSELF.  RATHER, THE DECISION
UPHELD AN INVESTIGATION OF COMMUNIST ACTIVITY IN EDUCATION.  EDUCATION,
TOO, IS LEGITIMATE AND PROTECTED ACTIVITY.  COMMUNIST INFILTRATION AND
PROPAGANDA IN A GIVEN AREA OF THE COUNTRY, WHICH WERE THE SUBJECTS OF
THE SUBCOMMITTEE INVESTIGATION HERE, ARE SURELY AS MUCH WITHIN ITS
PERVASIVE AUTHORITY AS COMMUNIST ACTIVITY IN EDUCATIONAL INSTITUTIONS. 
THE SUBCOMMITTEE HAD REASON TO BELIEVE THAT THE PETITIONER WAS A MEMBER
OF THE COMMUNIST PARTY, AND THAT HE HAD BEEN ACTIVELY ENGAGED IN
PROPAGANDA EFFORTS.  IT WAS MAKING A LEGISLATIVE INQUIRY INTO COMMUNIST
PARTY PROPAGANDA ACTIVITIES IN THE SOUTHERN STATES.  INFORMATION AS TO
THE EXTENT TO WHICH THE COMMUNIST PARTY WAS UTILIZING LEGITIMATE
ORGANIZATIONS AND CAUSES IN ITS PROPAGANDA EFFORTS IN THAT REGION WAS
SURELY NOT CONSTITUTIONALLY BEYOND THE REACH OF THE SUBCOMMITTEE'S
INQUIRY.  UPON THE REASONING AND AUTHORITY OF BARENBLATT, 360 U.S., AT
125-134, WE HOLD THAT THE JUDGMENT IS NOT TO BE SET ASIDE ON FIRST
AMENDMENT GROUNDS. 

THE PETITIONER IN THIS CASE RAISES TWO ADDITIONAL ISSUES THAT WERE
NOT CONSIDERED EITHER IN BARENBLATT, SUPRA, OR IN WILKINSON, SUPRA.
FIRST, HE SAYS THAT IT WAS ERROR FOR THE TRIAL COURT NOT TO LEAVE IT
FOR THE JURY TO DETERMINE WHETHER THE QUESTIONS ASKED BY THE
SUBCOMMITTEE WERE PERTINENT TO THE SUBJECT UNDER INQUIRY.  SECONDLY, HE
ASSERTS THAT HE COULD NOT PROPERLY BE CONVICTED, BECAUSE IN REFUSING TO
ANSWER THE SUBCOMMITTEE'S QUESTIONS HE RELIED UPON HIS UNDERSTANDING OF
THE MEANING OF PREVIOUS DECISIONS OF THIS COURT.  WE THINK THAT BOTH OF
THESE CONTENTIONS HAVE BEEN FORECLOSED BY SINCLAIR V. UNITED STATES,
279 U.S. 263. 

AT THE TRIAL THE DISTRICT JUDGE DETERMINED AS A MATTER OF LAW THAT
THE QUESTIONS WERE PERTINENT TO A MATTER UNDER INQUIRY BY THE
SUBCOMMITTEE, (FN5) LEAVING TO THE JURY THE QUESTION WHETHER THE
PERTINENCE OF THE QUESTIONS HAD BEEN BROUGHT HOME TO THE PETITIONER. 
IT IS TO BE NOTED THAT COUNSEL MADE NO TIMELY OBJECTION TO THIS
PROCEDURE AND, INDEED, AFFIRMATIVELY ACQUIESCED IN IT.  (FN6)  BUT WE
NEED NOT BASE REJECTION OF THE PETITIONER'S CONTENTION HERE ON THAT
GROUND, FOR, IN ANY EVENT, IT WAS PROPER FOR THE COURT TO DETERMINE THE
QUESTION AS A MATTER OF LAW.  THIS IS PRECISELY WHAT WAS HELD IN
SINCLAIR V. UNITED STATES, WHERE THE COURT SAID AT 279 U.S. 299:  "THE
REASONS FOR HOLDING RELEVANCY AND MATERIALITY TO BE QUESTIONS OF LAW
...  APPLY WITH EQUAL FORCE TO THE DETERMINATION OF PERTINENCY ARISING
UNDER SEC. 102 (THE PREDECESSOR OF 2 U.S.C. SEC. 192).  THE MATTER FOR
DETERMINATION IN THIS CASE WAS WHETHER THE FACTS CALLED FOR BY THE
QUESTION WERE SO RELATED TO THE SUBJECTS COVERED BY THE SENATE'S
RESOLUTIONS THAT SUCH FACTS REASONABLY COULD BE SAID TO BE 'PERTINENT
TO THE QUESTION UNDER INQUIRY.'  IT WOULD BE INCONGRUOUS AND CONTRARY
TO WELL-ESTABLISHED PRINCIPLES TO LEAVE THE DETERMINATION OF SUCH A
MATTER TO A JURY." 

DURING HIS INTERROGATION THE PETITIONER WAS ASKED:  "NOW DO I
UNDERSTAND THAT YOU HAVE REFUSED TO ANSWER THE QUESTION AS TO WHETHER
OR NOT YOU ARE NOW A MEMBER OF THE COMMUNIST PARTY SOLELY UPON THE
INVOCATION OF THE PROVISIONS OF THE FIRST AMENDMENT, BUT THAT YOU HAVE
NOT INVOKED THE PROTECTION OF THE FIFTH AMENDMENT TO THE CONSTITUTION. 
IS THAT CORRECT?"  HE GAVE THE FOLLOWING ANSWER:  "THAT IS RIGHT, SIR. 
I AM STANDING ON THE WATKINS, SWEEZY, KONIGSBERG, AND OTHER DECISIONS
OF THE UNITED STATES SUPREME COURT WHICH PROTECT MY RIGHT, AND THE
CONSTITUTION AS THEY INTERPRET THE CONSTITUTION OF THE UNITED STATES,
PROTECTING MY RIGHT TO PRIVATE BELIEF AND ASSOCIATION." 

IT IS NOW ARGUED THAT BECAUSE HE RELIED UPON HIS UNDERSTANDING OF
THIS COURT'S PREVIOUS DECISIONS HE COULD NOT BE CONVICTED UNDER THE
STATUTE FOR FAILING TO ANSWER THE QUESTIONS.  AN ALMOST IDENTICAL
CONTENTION WAS ALSO REJECTED IN SINCLAIR V. UNITED STATES, SUPRA, AT
299:  "THERE IS NO MERIT IN APPELLANT'S CONTENTION THAT HE IS ENTITLED
TO A NEW TRIAL BECAUSE THE COURT EXCLUDED EVIDENCE THAT IN REFUSING TO
ANSWER HE ACTED IN GOOD FAITH ON THE ADVICE OF COMPETENT COUNSEL.  THE
GIST OF THE OFFENSE IS REFUSAL TO ANSWER PERTINENT QUESTIONS.  NO MORAL
TURPITUDE IS INVOLVED.  INTENTIONAL VIOLATION IS SUFFICIENT TO
CONSTITUTE GUILT.  THERE WAS NO MISAPPREHENSION AS TO WHAT WAS CALLED
FOR.  THE REFUSAL TO ANSWER WAS DELIBERATE.  THE FACTS SOUGHT WERE
PERTINENT AS A MATTER OF LAW, AND SEC. 102 MADE IT APPELLANT'S DUTY TO
ANSWER.  HE WAS BOUND RIGHTLY TO CONSTRUE THE STATUTE.  HIS MISTAKEN
VIEW OF LAW IS NO DEFENSE."  (FN7) 

HERE, AS IN SINCLAIR, THE REFUSAL TO ANSWER WAS DELIBERATE AND
INTENTIONAL.  AFFIRMED. 

FN1  THE INDICTMENT WAS IN SIX COUNTS, EACH COUNT SETTING OUT A
SPECIFIC QUESTION WHICH THE PETITIONER HAD REFUSED TO ANSWER.  HE WAS
CONVICTED ON ALL SIX COUNTS, AND CONCURRENT SENTENCES WERE IMPOSED. 

FN2  THE QUESTIONS WHICH WERE THE SUBJECTS OF THE SIX COUNTS OF THE
INDICTMENT WERE AS FOLLOWS: 

"AND DID YOU PARTICIPATE IN A MEETING HERE AT THAT TIME? 

"WHO SOLICITED THE QUARTERS TO BE MADE AVAILABLE TO THE SOUTHERN
CONFERENCE EDUCATIONAL FUND? 

"ARE YOU CONNECTED WITH THE EMERGENCY CIVIL LIBERTIES COMMITTEE? 

"DID YOU AND HARVEY O'CONNOR, IN THE COURSE OF YOUR CONFERENCE THERE
IN RHODE ISLAND, DEVELOP PLANS AND STRATEGIES OUTLINING WORK SCHEDULES
FOR THE EMERGENCY CIVIL LIBERTIES COMMITTEE? 

"WERE YOU A MEMBER OF THE COMMUNIST PARTY THE INSTANT YOU AFFIXED
YOUR SIGNATURE TO THAT LETTER? 

"I WOULD JUST LIKE TO ASK YOU WHETHER OR NOT YOU, BEING A RESIDENT OF
LOUISVILLE, KENTUCKY, HAVE ANYTHING TO DO THERE WITH THE SOUTHERN
NEWSLETTER?" 

THE FULL TRANSCRIPT OF THE PETITIONER'S INTERROGATION BY THE
SUBCOMMITTEE, INTRODUCED IN THE DISTRICT COURT, MAKES INTELLIGIBLE THE
RELEVANCE OF THESE QUESTIONS.  SINCE CONCURRENT SENTENCES WERE IMPOSED
ON THE SEVERAL COUNTS, WE NEED SPECIFICALLY CONSIDER HERE ONLY THE
QUESTION COVERED BY THE FIFTH COUNT, GOING TO THE PETITIONER'S
COMMUNIST PARTY MEMBERSHIP.  SEE BARENBLATT V. UNITED STATES, 360 U.S.
109, 115; CLAASSEN V. UNITED STATES, 142 U.S. 140, 147. 

FN3  AS IN WILKINSON, BY THE RESOLUTION AUTHORIZING THE
SUBCOMMITTEE'S INVESTIGATION, BY THE STATEMENTS OF THE CHAIRMAN AND
OTHER MEMBERS OF THE SUBCOMMITTEE, BY THE TENOR OF INTERROGATION OF
PRIOR WITNESSES, AND BY A LENGTHY EXPLANATORY STATEMENT ADDRESSED
CONTEMPORANEOUSLY TO THE PETITIONER. 

FN4  FOR EXAMPLE, THE PETITIONER POINTS OUT THAT THE "SOUTHERN
CONFERENCE EDUCATIONAL FUND" WITH WHICH HE HAD BEEN ASSOCIATED HAD BEEN
ACTIVE IN PROMOTING RACIAL INTEGRATION IN THE SOUTH.  THE TRANSCRIPT OF
THE SUBCOMMITTEE HEARINGS MAKES CLEAR, HOWEVER, THAT THESE ACTIVITIES
AS SUCH WERE NOT UNDER INVESTIGATION.  AS A MEMBER OF THE SUBCOMMITTEE
STATED: 

"WHAT I AM INTERESTED IN, IS WHAT ARE YOU DOING ON BEHALF OF THE
COMMUNIST PARTY?  WE ARE NOT GOING TO BE CLOUDED, SO FAR AS I AM
CONCERNED, BY TALKING ABOUT INTEGRATION AND SEGREGATION.  THIS
COMMITTEE IS NOT CONCERNED IN THAT.  THIS COMMITTEE IS CONCERNED IN
WHAT YOU ARE DOING IN BEHALF OF THE THE COMMUNIST CONSPIRACY." 

AT ANOTHER POINT THE FOLLOWING COLLOQUY OCCURRED: 

"MR. BRADEN:  TWO HUNDRED NEGRO LEADERS IN THE SOUTH PETITIONED THE
CONGRESS OF THE UNITED STATES LAST WEEK IN CONNECTION WITH THIS HEARING
IN ATLANTA. 

"MR. JACKSON:  AFTER LOOKING AT SOME OF THE NAMES ON THIS LIST, THE
LETTERS WENT INTO THE CIRCULAR FILES OF MANY MEMBERS, BECAUSE IT WAS
QUITE OBVIOUS THAT A NUMBER OF NAMES ON THAT LETTER WERE NAMES OF THOSE
THAT HAD BEEN CLOSELY ASSOCIATED WITH THE COMMUNIST PARTY.  THEIR
INTEREST AND MAJOR PART DOES NOT LIE WITH HONEST INTEGRATION.  THEIR
INTEREST LIES WITH THE PURPOSES OF THE COMMUNIST PARTY.   AND THAT IS
WHAT WE ARE LOOKING INTO, AND LET US NOT BE CLOUDING THIS DISCUSSION
AND THIS HEARING THIS MORNING BY ANY MORE NONSENSE THAT WE ARE HERE AS
REPRESENTATIVES OF THE UNITED STATES GOVERNMENT TO FURTHER, OR TO
DESTROY, OR TO HAVE ANYTHING TO DO WITH, INTEGRATION." 

FN5  "YOU WILL NOTE THAT EACH COUNT IN THE INDICTMENT ALLEGES THAT
THE REFUSAL WAS WITH REFERENCE TO A QUESTION PERTINENT TO THE MATTER
UNDER INQUIRY.  YOU WILL NOT CONCERN YOURSELVES WITH THIS ALLEGATION AS
IT INVOLVES A MATTER OF LAW WHICH IT IS THE COURT'S DUTY TO DETERMINE
AND WHICH HAS BEEN DETERMINED.  I HAVE DETERMINED AS A MATTER OF LAW
THAT THE COMMITTEE HAD THE RIGHT TO ASK THESE QUESTIONS AND THE
DEFENDANT HAD THE DUTY TO ANSWER THESE QUESTIONS UNDER THE CONDITIONS
THAT I WILL LATER EXPLAIN." 

FN6  IN HIS OPENING STATEMENT TO THE JURY, COUNSEL FOR THE PETITIONER
SAID:  "AS THE COUNSEL FOR THE GOVERNMENT HAS PROPERLY STATED, THE
QUESTION OF WHETHER OR NOT THOSE QUESTIONS WERE PERTINENT TO THE
SUBJECT MATTER UNDER INQUIRY HAS BEEN RULED TO BE A QUESTION OF LAW FOR
THE COURT.  BUT WHETHER OR NOT THE DEFENDANT CARL BRADEN AT THE TIME HE
REFUSED TO ANSWER THOSE QUESTIONS KNEW THAT THEY WERE PERTINENT TO THE
SUBJECT MATTER UNDER INQUIRY IS A QUESTION OF FACT WHICH WILL BE
SUBMITTED BY THE COURT TO YOU GENTLEMEN."  NOT UNTIL AFTER THE
CONCLUDING ARGUMENTS AND THE INSTRUCTIONS TO THE JURY DID COUNSEL CLAIM
FOR THE FIRST TIME THAT THE QUESTION OF ACTUAL PERTINENCY WAS NOT FOR
THE COURT TO DECIDE. 

FN7  THIS WAS REAFFIRMED IN UNITED STATES V. MURDOCK, 290 U.S. 389,
397, WHERE IT WAS SAID:  "THE APPLICABLE STATUTE DID NOT MAKE A BAD
PURPOSE OR EVIL INTENT AN ELEMENT OF THE MISDEMEANOR OF REFUSING TO
ANSWER, BUT CONDITIONED GUILT OR INNOCENCE SOLELY UPON THE RELEVANCY OF
THE QUESTION PROPOUNDED.  SINCLAIR WAS EITHER RIGHT OR WRONG IN HIS
REFUSAL TO ANSWER, AND IF WRONG HE TOOK THE RISK OF BECOMING LIABLE TO
THE PRESCRIBED PENALTY."  SEE ALSO WATKINS V. UNITED STATES, 354 U.S.
178, 208. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

THE PETITIONER IN THIS CASE, AS IS SHOWN BY THE FACTS SET FORTH IN
THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS, IN WHICH I CONCUR, HAS
FOR SOME TIME BEEN AT ODDS WITH STRONG SENTIMENT FAVORING RACIAL
SEGREGATION IN HIS HOME STATE OF KENTUCKY.  A WHITE MAN HIMSELF, THE
PETITIONER HAS NONETHELESS SPOKEN OUT STRONGLY AGAINST THAT SENTIMENT. 
THIS ACTIVITY, WHICH ONCE BEFORE RESULTED IN HIS BEING CHARGED WITH A
SERIOUS CRIME, (FN1) SEEMS ALSO TO HAVE BEEN THE PRIMARY REASON FOR HIS
BEING CALLED BEFORE THE UN-AMERICAN ACTIVITIES COMMITTEE.  FOR THE
OCCASION OF THAT COMMITTEE'S COMPELLING PETITIONER TO GO FROM RHODE
ISLAND, WHERE HE WAS VACATIONING, TO ATLANTA FOR QUESTIONING APPEARS
FROM THE RECORD TO HAVE BEEN THE CIRCULATION OF TWO LETTERS, BOTH IN
THE NATURE OF PETITIONS TO CONGRESS, URGING THAT CERTAIN LEGISLATIVE
ACTION BE TAKEN WHICH, IN THE VIEW OF THE SIGNERS OF THE PETITIONS,
WOULD HELP THOSE WORKING AGAINST SEGREGATION.  ONE OF THESE PETITIONS,
SIGNED BY PETITIONER AND HIS WIFE, ASKED THOSE WHO READ IT TO URGE
THEIR REPRESENTATIVES IN CONGRESS TO VOTE AGAINST PROPOSED LEGISLATION
WHICH WOULD HAVE EMPOWERED THE STATES TO ENACT ANTISEDITION STATUTES
BECAUSE, IN THE VIEW OF THE SIGNERS, THOSE STATUTES COULD TOO READILY
BE USED AGAINST CITIZENS WORKING FOR INTEGRATION.  THE OTHER PETITION,
BEARING THE SIGNATURE OF 200 SOUTHERN NEGROES, WAS SENT DIRECTLY TO THE
HOUSE OF REPRESENTATIVES AND REQUESTED THAT BODY NOT TO ALLOW THE UN
AMERICAN ACTIVITIES COMMITTEE TO CONDUCT HEARINGS IN THE SOUTH BECAUSE,
SO THE PETITION CHARGED, "ALL OF ITS (THE COMMITTEE'S) ACTIVITIES IN
RECENT YEARS SUGGEST THAT IT IS MUCH MORE INTERESTED IN HARASSING AND
LABELING AS 'SUBVERSIVE' ANY CITIZEN WHO IS INCLINED TO BE LIBERAL OR
AN INDEPENDENT THINKER."  THE RECORD SHOWS THAT THE COMMITTEE
APPARENTLY BELIEVED THAT PETITIONER HAD DRAFTED BOTH OF THESE PETITIONS
AND THAT HE HAD CIRCULATED THEM, NOT - AS WOULD APPEAR FROM THE FACE OF
THE PETITIONS - FOR THE PURPOSE OF FURTHERING THE CAUSE OF INTEGRATION,
BUT FOR THE PURPOSE OF FURTHERING THE INTERESTS OF THE COMMUNIST PARTY,
OF WHICH THE COMMITTEE CLAIMED TO HAVE INFORMATION THAT HE WAS A
MEMBER, (FN2) BY FOMENTING RACIAL STRIFE AND INTERFERING WITH THE
INVESTIGATIONS OF THE UN-AMERICAN ACTIVITIES COMMITTEE. 

WHEN PETITIONER APPEARED IN RESPONSE TO THIS SUBPOENA, HE WAS ASKED A
NUMBER OF QUESTIONS REGARDING HIS PERSONAL BELIEFS AND ASSOCIATIONS,
CULMINATING IN THE QUESTION OF WHETHER HE WAS A MEMBER OF THE COMMUNIST
PARTY AT "THE INSTANT" HE AFFIXED HIS SIGNATURE TO THE PETITION URGING
DEFEAT OF THE STATUTE AUTHORIZING STATE ANTISEDITION LAWS.  PETITIONER
REFUSED TO ANSWER THESE QUESTIONS ON THE GROUNDS, FIRST, THAT THE
COMMITTEE HAD NO POWER TO ASK THE QUESTIONS IT PUT TO HIM, AND,
SECONDLY, THAT HE COULD PROPERLY REFUSE TO ANSWER SUCH QUESTIONS UNDER
THE FIRST AMENDMENT.  FOR THIS REFUSAL TO ANSWER HE, LIKE FRANK
WILKINSON WHO FOLLOWED HIM ON THE WITNESS STAND AT THE ATLANTA HEARING,
(FN3) WAS CONVICTED UNDER 2 U.S.C. SEC. 192 AND SENTENCED TO 12 MONTHS
IN JAIL.  (FN4)  AND, AS WAS THE CASE WITH THE CONVICTION OF WILKINSON,
THE MAJORITY HERE AFFIRMS PETITIONER'S CONVICTION "UPON THE REASONING
AND AUTHORITY" OF BARENBLATT V. UNITED STATES.  (FN5) 

AGAIN I MUST AGREE WITH THE MAJORITY THAT INSOFAR AS THE CONVICTION
IS ATTACKED ON CONSTITUTIONAL GROUNDS, (FN6) THE DECISION IN BARENBLATT
CONSTITUTES AMPLE AUTHORITY FOR ITS ACTION, EVEN THOUGH IT CANNOT BE
DENIED THAT THE COMMITTEE'S CONDUCT CONSTITUTES A DIRECT ABRIDGMENT OF
THE RIGHT OF PETITION.  INDEED, I THINK THE MAJORITY MIGHT WELL HAVE,
WITH EQUAL JUSTIFICATION, RELIED UPON A MUCH EARLIER DECISION OF THIS
COURT, THAT IN BEAUHARNAIS V. ILLINOIS.  (FN7)  FOR IT WAS THERE THAT A
MAJORITY OF THIS COURT FIRST APPLIED TO THE RIGHT OF PETITION THE
FLEXIBLE CONSTITUTIONAL RULE UPON WHICH THE DECISION IN THIS CASE IS
BASED - THE RULE THAT THE RIGHT OF PETITION, THOUGH GUARANTEED IN
PRECISE AND MANDATORY TERMS BY THE FIRST AMENDMENT, MAY BE ABANDONED AT
ANY TIME GOVERNMENT CAN OFFER A REASON FOR DOING SO THAT A MAJORITY OF
THIS COURT FINDS SUFFICIENTLY COMPELLING.  IRONICALLY, THE NEED THERE
ASSERTED BY THE STATE OF ILLINOIS AND ACCEPTED BY A MAJORITY OF THIS
COURT AS SUFFICIENTLY COMPELLING TO WARRANT ABRIDGMENT OF THE RIGHT OF
PETITION WAS THE NEED TO PROTECT NEGROES AGAINST WHAT WAS SUBSEQUENTLY
LABELED "LIBEL  ...  OF A RACIAL GROUP," (FN8) ALTHOUGH IT WAS ACTUALLY
NOTHING MORE THAN THE CIRCULATION OF A PETITION SEEKING GOVERNMENTAL
AND PUBLIC SUPPORT FOR A PROGRAM OF RACIAL SEGREGATION.  (FN9)  THUS,
THE DECISION IN BEAUHARNAIS HAD ALL THE OUTWARD APPEARANCES OF BEING
ONE WHICH WOULD AID THE UNDERPRIVILEGED NEGRO MINORITY.  (FN10)  THIS
DECISION, HOWEVER, IS A DRAMATIC ILLUSTRATION OF THE SHORTSIGHTEDNESS
OF SUCH AN INTERPRETATION OF THAT CASE.  FOR THE VERY CONSTITUTIONAL
PHILOSOPHY THAT GAVE BIRTH TO BEAUHARNAIS TODAY GIVES BIRTH TO A
DECISION WHICH MAY WELL STRIP THE NEGRO OF THE AID OF MANY OF THE WHITE
PEOPLE WHO HAVE BEEN WILLING TO SPEAK UP IN HIS BEHALF.  IF THE HOUSE
UN-AMERICAN ACTIVITIES COMMITTEE IS TO HAVE THE POWER TO INTERROGATE
EVERYONE WHO IS CALLED A COMMUNIST, (FN11) THERE IS ONE THING CERTAIN
BEYOND THE PERADVENTURE OF A DOUBT - NO LEGISLATIVE COMMITTEE, STATE OR
FEDERAL, WILL HAVE TROUBLE FINDING CAUSE TO SUBPOENA ALL PERSONS
ANYWHERE WHO TAKE A PUBLIC STAND FOR OR AGAINST SEGREGATION.  THE
LESSON TO BE LEARNED FROM THESE TWO CASES IS, TO MY MIND, CLEAR. 
LIBERTY, TO BE SECURE FOR ANY, MUST BE SECURE FOR ALL - EVEN FOR THE
MOST MISERABLE MERCHANTS OF HATED AND UNPOPULAR IDEAS. 

BOTH BARENBLATT AND BEAUHARNAIS ARE OFFSPRING OF A CONSTITUTIONAL
DOCTRINE THAT IS STEADILY SACRIFICING INDIVIDUAL FREEDOM OF RELIGION,
SPEECH, PRESS, ASSEMBLY AND PETITION TO GOVERNMENTAL CONTROL.  THERE
HAVE BEEN MANY OTHER SUCH DECISIONS AND THE INDICATIONS ARE THAT THIS
NUMBER WILL CONTINUE TO GROW AT AN ALARMING RATE.  FOR THE PRESENTLY
PREVAILING CONSTITUTIONAL DOCTRINE, WHICH TREATS THE FIRST AMENDMENT AS
A MERE ADMONITION, LEAVES THE LIBERTY-GIVING FREEDOMS WHICH WERE
INTENDED TO BE PROTECTED BY THAT AMENDMENT COMPLETELY AT THE MERCY OF
CONGRESS AND THIS COURT WHENEVER A MAJORITY OF THIS COURT CONCLUDES, ON
THE BASIS OF ANY OF THE SEVERAL JUDICIALLY CREATED "TESTS" NOW IN
VOGUE, (FN12) THAT ABRIDGMENT OF THESE FREEDOMS IS MORE DESIRABLE THAN
FREEDOM ITSELF.  ONLY A FEW DAYS AGO, THE APPLICATION OF THIS
CONSTITUTIONAL DOCTRINE WIPED OUT THE RULE FORBIDDING PRIOR CENSORSHIP
OF MOVIES IN AN OPINION THAT LEAVES THE DOOR WIDE OPEN TO, IF INDEED IT
DOES NOT ACTUALLY INVITE, PRIOR CENSORSHIP OF OTHER MEANS OF
PUBLICATION.  (FN13)  AND THE BLACKSTONIAN CONDEMNATION OF PRIOR
CENSORSHIP HAD LONG BEEN THOUGHT, EVEN BY THOSE WHOSE IDEAS OF FIRST
AMENDMENT LIBERTIES HAVE BEEN MOST RESTRICTED, TO BE THE ABSOLUTE
MINIMUM OF THE PROTECTION DEMANDED BY THAT AMENDMENT.  (FN14) 

I ONCE MORE DENY, AS I HAVE FOUND IT REPEATEDLY NECESSARY TO DO IN
OTHER CASES, THAT THIS NATION'S ABILITY TO PRESERVE ITSELF DEPENDS UPON
SUPPRESSION OF THE FREEDOMS OF RELIGION, SPEECH, PRESS, ASSEMBLY AND
PETITION.  (FN15)  BUT I DO BELIEVE THAT THE NOBLE-SOUNDING SLOGAN OF
"SELF-PRESERVATION" (FN16) RESTS UPON A PREMISE THAT CAN ITSELF DESTROY
ANY DEMOCRATIC NATION BY A SLOW PROCESS OF EATING AWAY AT THE LIBERTIES
THAT ARE INDISPENSABLE TO ITS HEALTHY GROWTH.  THE VERY FOUNDATION OF A
TRUE DEMOCRACY AND THE FOUNDATION UPON WHICH THIS NATION WAS BUILT IS
THE FACT THAT GOVERNMENT IS RESPONSIVE TO THE VIEWS OF ITS CITIZENS,
AND NO NATION CAN CONTINUE TO EXIST ON SUCH A FOUNDATION UNLESS ITS
CITIZENS ARE WHOLLY FREE TO SPEAK OUT FEARLESSLY FOR OR AGAINST THEIR
OFFICIALS AND THEIR LAWS.  WHEN IT BEGINS TO SEND ITS DISSENTERS, SUCH
AS BARENBLATT, UPHAUS, WILKINSON, AND NOW BRADEN, TO JAIL, THE
LIBERTIES INDISPENSABLE TO ITS EXISTENCE MUST BE FAST DISAPPEARING.  IF
SELF-PRESERVATION IS TO BE THE ISSUE THAT DECIDES THESE CASES, I FIRMLY
BELIEVE THEY MUST BE DECIDED THE OTHER WAY.  ONLY BY A DEDICATED
PRESERVATION OF THE FREEDOMS OF THE FIRST AMENDMENT CAN WE HOPE TO
PRESERVE OUR NATION AND ITS TRADITIONAL WAY OF LIFE. 

IT IS ALREADY PAST THE TIME WHEN PEOPLE WHO RECOGNIZE AND CHERISH THE
LIFE-GIVING AND LIFE-PRESERVING QUALITIES OF THE FREEDOMS PROTECTED BY
THE BILL OF RIGHTS CAN AFFORD TO SIT COMPLACENTLY BY WHILE THOSE
FREEDOMS ARE BEING DESTROYED BY SOPHISTRY AND DIALECTICS.  FOR AT LEAST
11 YEARS, SINCE THE DECISION OF THIS COURT IN AMERICAN COMMUNICATIONS
ASSN. V. DOUDS, (FN17) THE FORCES OF DESTRUCTION HAVE BEEN HARD AT
WORK.  MUCH DAMAGE HAS ALREADY BEEN DONE.  IF THIS DANGEROUS TREND IS
NOT STOPPED NOW, IT MAY BE AN IMPOSSIBLE TASK TO STOP IT AT ALL.  THE
AREA SET OFF FOR INDIVIDUAL FREEDOM BY THE BILL OF RIGHTS WAS MARKED BY
BOUNDARIES PRECISELY DEFINED.  IT IS MY BELIEF THAT THE AREA SO SET OFF
PROVIDES AN ADEQUATE MINIMUM PROTECTION FOR THE FREEDOMS INDISPENSABLE
TO INDIVIDUAL LIBERTY.  THUS WE HAVE ONLY TO OBSERVE FAITHFULLY THE
BOUNDARIES ALREADY MARKED FOR US.  FOR THE PRESENT, HOWEVER, THE TWO
CASES DECIDED BY THIS COURT TODAY AND THE MANY OTHERS LIKE THEM THAT
HAVE BEEN DECIDED IN THE PAST 11 YEARS HAVE ALL BUT OBLITERATED THOSE
BOUNDARIES.  (FN18)  THERE ARE NOW NO LIMITS TO CONGRESSIONAL
ENCROACHMENT IN THIS FIELD EXCEPT SUCH AS A MAJORITY OF THIS COURT MAY
CHOOSE TO SET BY A VALUE-WEIGHING PROCESS ON A CASE-BY-CASE BASIS. 

I CANNOT ACCEPT SUCH A PROCESS.  AS I UNDERSTAND IT, THIS COURT'S
DUTY TO GUARD CONSTITUTIONAL LIBERTIES IS TO GUARD THOSE LIBERTIES THE
CONSTITUTION DEFINED, NOT THOSE THAT MAY BE DEFINED FROM CASE TO CASE
ON THE BASIS OF THIS COURT'S JUDGMENT AS TO THE RELATIVE IMPORTANCE OF
INDIVIDUAL LIBERTY AND GOVERNMENTAL POWER.  THE MAJORITY'S APPROACH
MAKES THE FIRST AMENDMENT, NOT THE RIGID PROTECTION OF LIBERTY ITS
LANGUAGE IMPORTS, BUT A POOR FLEXIBLE IMITATION.  THIS WEAK SUBSTITUTE
FOR THE FIRST AMENDMENT IS, TO MY MIND, TOTALLY UNACCEPTABLE FOR I
BELIEVE THAT AMENDMENT FORBIDS, AMONG OTHER THINGS, ANY AGENCY OF THE
FEDERAL GOVERNMENT - BE IT LEGISLATIVE, EXECUTIVE OR JUDICIAL - TO
HARASS OR PUNISH PEOPLE FOR THEIR BELIEFS, OR FOR THEIR SPEECH ABOUT,
OR PUBLIC CRITICISM OF, LAWS AND PUBLIC OFFICIALS.  THE FOUNDERS OF
THIS NATION WERE NOT THEN WILLING TO TRUST THE DEFINITION OF FIRST
AMENDMENT FREEDOMS TO CONGRESS OR THIS COURT, NOR AM I NOW.  HISTORY
AND THE AFFAIRS OF THE PRESENT DAY SHOW THAT THE FOUNDERS WERE RIGHT. 
THERE ARE GRIM REMINDERS ALL AROUND THIS WORLD THAT THE DISTANCE
BETWEEN INDIVIDUAL LIBERTY AND FIRING SQUADS IS NOT ALWAYS AS FAR AS IT
SEEMS.  I WOULD OVERRULE BARENBLATT, ITS FORERUNNERS AND ITS PROGENY,
AND RETURN TO THE LANGUAGE OF THE BILL OF RIGHTS.  THE NEW AND
DIFFERENT COURSE THE COURT IS FOLLOWING IS TOO DANGEROUS. 

FN1  IN 1954 PETITIONER AND HIS WIFE WERE INDICTED AND PETITIONER WAS
CONVICTED OF SEDITION BY THE STATE OF KENTUCY, FOR WHICH HE RECEIVED A
SENTENCE OF IMPRISONMENT FOR 15 YEARS.  THIS PROSECUTION GREW OUT OF
EVENTS SURROUNDING PETITIONER'S HELPING A NEGRO FAMILY TO PURCHASE A
HOME IN AN ALL-WHITE SUBURB OF LOUISVILLE.  THE CHARGES AGAINST
PETITIONER AND HIS WIFE WERE EVENTUALLY DISMISSED FOLLOWING THIS
COURT'S DECISION IN PENNSYLVANIA V. NELSON, 350 U.S. 497.  SEE BRADEN
V. COMMONWEALTH OF KENTUCKY, 291 S.W.2D 843.  FOR THE PROSECUTION'S
VERSION OF THIS CASE, SEE THE TESTIMONY OF THE STATE ATTORNEY GENERAL
AND THE COMMONWEALTH ATTORNEY FOR LOUISVILLE (THE LATTER HAVING SERVED
AS PROSECUTOR IN THE CASE) BEFORE THE SUBCOMMITTEE TO INVESTIGATE THE
ADMINISTRATION OF THE INTERNAL SECURITY ACT AND OTHER INTERNAL SECURITY
LAWS OF THE SENATE COMMITTEE ON THE JUDICIARY, 85TH CONG., 1ST SESS.,
PP. 2-23.  FOR THE BRADENS' VERSION OF THE CASE, SEE ANNE BRADEN, THE
WALL BETWEEN. 

FN2  SO FAR AS APPEARS FROM THE RECORD, THE EVIDENCE RELIED UPON BY
THE COMMITTEE TO SUBSTANTIATE ITS CLAIM THAT PETITIONER IS OR HAS BEEN
A MEMBER OF THE COMMUNIST PARTY IS NO STRONGER HERE THAN IT WAS IN
WILKINSON V. UNITED STATES, THE COMPANION CASE DECIDED TODAY, ANTE, P.
399.  HERE, AS THERE, THE COMMITTEE APPEARS TO HAVE BEEN RELYING UPON A
FLAT CONCLUSORY STATEMENT MADE BY AN INFORMANT, THIS TIME BEFORE A
SENATE INTERNAL SECURITY SUBCOMMITTEE.  SEE HEARINGS BEFORE THE
SUBCOMMITTEE, OP. CIT., SUPRA, N.1, AT 37. 

FN3  SEE WILKINSON V. UNITED STATES, DECIDED TODAY, ANTE, P. 399. 

FN4  PETITIONER WAS CONVICTED ON SIX COUNTS AND GIVEN CONCURRENT
SENTENCES ON EACH, BUT THE MAJORITY, PROPERLY I THINK, STATES THAT "WE
NEED SPECIFICALLY CONSIDER HERE ONLY THE QUESTION COVERED BY THE FIFTH
COUNT  ...  ."  THE FIFTH COUNT RELATED TO THE QUESTION REFERRED TO
ABOVE DEALING WITH PETITIONER'S POSSIBLE COMMUNIST PARTY MEMBERSHIP AT
"THE INSTANT" HE AFFIXED HIS SIGNATURE TO THE PETITION URGING DEFEAT OF
THE STATUTE AUTHORIZING STATE ANTISEDITION LAWS. 

FN5  360 U.S. 109. 

FN6  AS INDICATED BY MY CONCURRENCE IN THE DISSENT OF MR. JUSTICE
DOUGLAS NOTED ABOVE, I THINK THE ISSUE OF THE PERTINENCY OF THE
QUESTIONS ASKED HERE SHOULD BE CONTROLLED BY THE DECISION IN WATKINS V.
UNITED STATES, 354 U.S. 178, RATHER THAN BY THE DECISION IN BARENBLATT
V. UNITED STATES, 360 U.S. 109. 

FN7  343 U.S. 250. 

FN8  ID., AT 263. 

FN9  SEE THE PETITION ITSELF, REPRINTED AS AN APPENDIX TO MY
DISSENTING OPINION IN THAT CASE.  ID., AT 276. 

FN10  MR. JUSTICE DOUGLAS AND I DID NOT THINK SO.  SEE, ID., AT 275:
"IF THERE BE MINORITY GROUPS WHO HAIL THIS HOLDING AS THEIR VICTORY,
THEY MIGHT CONSIDER THE POSSIBLE RELEVANCY OF THIS ANCIENT REMARK: 

"'ANOTHER SUCH VICTORY AND I AM UNDONE.'" 

FN11  AND I THINK THE DECISION IN THIS CASE, AS WELL AS THAT IN
WILKINSON V. UNITED STATES, ALSO DECIDED TODAY, ANTE, P. 399,
DEMONSTRATES CONCLUSIVELY THAT THE COMMITTEE IS TO HAVE AT LEAST THAT
MUCH POWER. 

FN12  THESE "TESTS" INCLUDE WHETHER THE LAW IN QUESTION "SHOCKS THE
CONSCIENCE," OFFENDS "A SENSE OF JUSTICE," RUNS COUNTER TO THE
"DECENCIES OF CIVILIZED CONDUCT," IS INCONSISTENT WITH "AN ORDERED
CONCEPT OF LIBERTY," OFFENDS "TRADITIONAL NOTIONS OF FAIR PLAY AND
SUBSTANTIAL JUSTICE," IS CONTRARY TO "THE NOTIONS OF JUSTICE OF ENGLISH
SPEAKING PEOPLES," OR IS UNJUSTIFIED "ON BALANCE."  SEE ROCHIN V.
CALIFORNIA, 342 U.S. 165, 175-176 (CONCURRING OPINION); UPHAUS V.
WYMAN, 364 U.S. 388, 392-393 (DISSENTING OPINION).  SIGNIFICANTLY, IN
NONE OF THESE "TESTS" DOES THE RESULT TO BE OBTAINED DEPEND UPON THE
QUESTION WHETHER THERE HAS BEEN AN ABRIDGMENT OF RIGHTS PROTECTED BY
THE PLAIN LANGUAGE OF THE BILL OF RIGHTS.    FN13  TIMES FILM CORP. V.
CITY OF CHICAGO, 365 U.S. 43. 

FN14  SEE, E.G., LEVY, LEGACY OF SUPPRESSION, AT 13-15, 173, 185,
186, 190, 202-220, 241, 248, 258, 262, 263, 283, 288, 289, 293, 307 AND
309. 

FN15  SEE, E.G., AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.
382, 452-453 (DISSENTING OPINION); DENNIS V. UNITED STATES, 341 U.S.
494, 580 (DISSENTING OPINION); BARENBLATT V. UNITED STATES, 360 U.S.
109, 145-153, 162 (DISSENTING OPINION); FLEMMING V. NESTOR, 363 U.S.
603, 628 (DISSENTING OPINION); UPHAUS V. WYMAN, 364 U.S. 388, 400-401
(DISSENTING OPINION). 

FN16  THE USE OF THIS SLOGAN IS BECOMING COMMONPLACE IN THE OPINIONS
OF THIS COURT.  THUS, IN DENNIS V. UNITED STATES, 341 U.S. 494, AT 509,
IT WAS SAID:  "OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE IS
CERTAINLY A SUBSTANTIAL ENOUGH INTEREST FOR THE GOVERNMENT TO LIMIT
SPEECH.  INDEED, THIS IS THE ULTIMATE VALUE OF ANY SOCIETY, FOR IF A
SOCIETY CANNOT PROTECT ITS VERY STRUCTURE FROM ARMED INTERNAL ATTACK,
IT MUST FOLLOW THAT NO SUBORDINATE VALUE CAN BE PROTECTED."  THEN, IN
BARENBLATT V. UNITED STATES, 360 U.S. 109, AT 127-128, WE ARE TOLD:
"IN THE LAST ANALYSIS THIS POWER RESTS ON THE RIGHT OF SELF
PRESERVATION, 'THE ULTIMATE VALUE OF ANY SOCIETY,'" A STATEMENT WHICH
IS REITERATED TODAY IN WILKINSON V. UNITED STATES, ANTE, P. 399. 

FN17  339 U.S. 382, DECIDED IN 1950.  AND SEE UPHAUS V. WYMAN, 364
U.S. 388, 392 (DISSENTING OPINION). 

FN18  SEE, E.G., AMERICAN COMMUNICATION ASSN. V. DOUDS, 339 U.S. 382;
DENNIS V. UNITED STATES, 341 U.S. 494; GARNER V. BOARD OF PUBLIC WORKS
OF LOS ANGELES, 341 U.S. 716; ADLER V. BOARD OF EDUCATION OF NEW YORK
CITY, 342 U.S. 485; BEAUHARNAIS V. ILLINOIS, 343 U.S. 250; GALVAN V.
PRESS, 347 U.S. 522; YATES V. UNITED STATES, 354 U.S. 298; UPHAUS V.
WYMAN, 360 U.S. 72; BARENBLATT V. UNITED STATES, 360 U.S. 109; NELSON
V. COUNTY OF LOS ANGELES, 362 U.S. 1; FLEMMING V. NESTOR, 363 U.S. 603;
UPHAUS V. WYMAN, 364 U.S. 388; AND TIMES FILM CORP. V. CITY OF CHICAGO,
365 U.S. 43. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

AT THE BOTTOM OF THIS CASE ARE THIS COURT'S DECISIONS IN PENNSYLVANIA
V. NELSON, 350 U.S. 497, HOLDING THAT CONGRESS DID NOT ENTRUST TO THE
STATES PROTECTION OF THE FEDERAL GOVERNMENT AGAINST SEDITION, AND BROWN
V. BOARD OF EDUCATION, 347 U.S. 483, HOLDING THAT RACIAL SEGREGATION OF
STUDENTS IN PUBLIC SCHOOLS IS UNCONSTITUTIONAL.  I HAD SUPPOSED UNTIL
TODAY THAT ONE COULD AGREE OR DISAGREE WITH THOSE DECISIONS WITHOUT
BEING HOUNDED FOR HIS BELIEF AND SENT TO JAIL FOR CONCLUDING THAT HIS
BELIEF WAS BEYOND THE REACH OF GOVERNMENT. 

ON JUNE 17, 1957, WE DECIDED WATKINS V. UNITED STATES, 354 U.S. 178,
DEFINING AND CURTAILING THE AUTHORITY OF CONGRESSIONAL COMMITTEES WHO
SOUGHT THE AID OF THE COURTS IN HOLDING WITNESSES IN CONTEMPT.  (FN1)
WE SAID IN A SIX-TO-ONE DECISION THAT "WHEN FIRST AMENDMENT RIGHTS ARE
THREATENED, THE DELEGATION OF POWER TO THE COMMITTEE MUST BE CLEARLY
REVEALED IN ITS CHARTER" (ID., AT 198); THAT "THERE IS NO CONGRESSIONAL
POWER TO EXPOSE FOR THE SAKE OF EXPOSURE" (ID., AT 200); THAT THE
MEANING OF "UN-AMERICAN" IN THE RESOLUTION DEFINING THE COMMITTEE'S
AUTHORITY IS SO VAGUE THAT IT IS "DIFFICULT TO IMAGINE A LESS EXPLICIT
AUTHORIZING RESOLUTION" (ID., AT 202); THAT BEFORE A WITNESS CHOOSES
BETWEEN ANSWERING OR NOT ANSWERING HE IS ENTITLED "TO HAVE KNOWLEDGE OF
THE SUBJECT TO WHICH THE INTERROGATION IS DEEMED PERTINENT" (ID., AT
208-209); THAT IN THAT CASE THE RESOLUTION AND THE STATEMENT OF THE
COMMITTEE'S CHAIRMAN WERE "WOEFULLY INADEQUATE TO CONVEY SUFFICIENT
INFORMATION AS TO THE PERTINENCY OF THE QUESTIONS TO THE SUBJECT UNDER
INQUIRY."  ID., 215. 

SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, DECIDED THE SAME DAY AS THE
WATKINS CASE, REVERSED A CONVICTION ARISING OUT OF A STATE
INVESTIGATION INTO "SUBVERSIVE ACTIVITIES" WHERE A TEACHER WAS ASKED
QUESTIONS CONCERNING HIS RELATION TO MARXISM.  THE CHIEF JUSTICE IN HIS
OPINION STATED: 

"EQUALLY MANIFEST AS A FUNDAMENTAL PRINCIPLE OF A DEMOCRATIC SOCIETY
IS POLITICAL FREEDOM OF THE INDIVIDUAL.  OUR FORM OF GOVERNMENT IS
BUILT ON THE PREMISE THAT EVERY CITIZEN SHALL HAVE THE RIGHT TO ENGAGE
IN POLITICAL EXPRESSION AND ASSOCIATION.  THIS RIGHT WAS ENSHRINED IN
THE FIRST AMENDMENT OF THE BILL OF RIGHTS.  EXERCISE OF THESE BASIC
FREEDOMS IN AMERICA HAS TRADITIONALLY BEEN THROUGH THE MEDIA OF
POLITICAL ASSOCIATIONS.  ANY INTERFERENCE WITH THE FREEDOM OF A PARTY
IS SIMULTANEOUSLY AN INTERFERENCE WITH THE FREEDOM OF ITS ADHERENTS. 
ALL POLITICAL IDEAS CANNOT AND SHOULD NOT BE CHANNELED INTO THE
PROGRAMS OF OUR TWO MAJOR PARTIES.  HISTORY HAS AMPLY PROVED THE VIRTUE
OF POLITICAL ACTIVITY BY MINORITY, DISSIDENT GROUPS, WHO INNUMERABLE
TIMES HAVE BEEN IN THE VANGUARD OF DEMOCRATIC THOUGHT AND WHOSE
PROGRAMS WERE ULTIMATELY ACCEPTED.  MERE UNORTHODOXY OR DISSENT FROM
THE PREVAILING MORES IS NOT TO BE CONDEMNED.  THE ABSENCE OF SUCH
VOICES WOULD BE A SYMPTOM OF GRAVE ILLNESS IN OUR SOCIETY."  ID., 250
251. 

THE CONCURRING OPINION STATED: 

"PROGRESS IN THE NATURAL SCIENCES IS NOT REMOTELY CONFINED TO
FINDINGS MADE IN THE LABORATORY.  INSIGHTS INTO THE MYSTERIES OF NATURE
ARE BORN OF HYPOTHESIS AND SPECULATION.  THE MORE SO IS THIS TRUE IN
THE PURSUIT OF UNDERSTANDING IN THE GROPING ENDEAVORS OF WHAT ARE
CALLED THE SOCIAL SCIENCES, THE CONCERN OF WHICH IS MAN AND SOCIETY. 
THE PROBLEMS THAT ARE THE RESPECTIVE PREOCCUPATIONS OF ANTHROPOLOGY,
ECONOMICS, LAW, PSYCHOLOGY, SOCIOLOGY AND RELATED AREAS OF SCHOLARSHIP
ARE MERELY DEPARTMENTALIZED DEALING, BY WAY OF MANAGEABLE DIVISION OF
ANALYSIS, WITH INTERPENETRATING ASPECTS OF HOLISTIC PERPLEXITIES.  FOR
SOCIETY'S GOOD - IF UNDERSTANDING BE AN ESSENTIAL NEED OF SOCIETY -
INQUIRIES INTO THESE PROBLEMS, SPECULATIONS ABOUT THEM, STIMULATION IN
OTHERS OF REFLECTION UPON THEM, MUST BE LEFT AS UNFETTERED AS
POSSIBLE.  POLITICAL POWER MUST ABSTAIN FROM INTRUSION INTO THIS
ACTIVITY OF FREEDOM, PURSUED IN THE INTEREST OF WISE GOVERNMENT AND THE
PEOPLE'S WELL-BEING, EXCPET FOR REASONS THAT ARE EXIGENT AND OBVIOUSLY
COMPELLING."  ID., 261-262. 

ON JUNE 8, 1959 - TWO YEARS AFTER THE WATKINS AND SWEEZY DECISIONS -
WE DECIDED BARENBLATT V. UNITED STATES, 360 U.S. 109, WHERE A DIVIDED
COURT GAVE ONLY SLIGHT CONSIDERATION TO THE TYPE OF PERTINENCY CLAIM
THAT WAS RAISED IN WATKINS, SWEEZY AND THE PRESENT CASE, IN PART
BECAUSE IT COULD RELY ON THE PETITIONER'S FAILURE TO RAISE THAT
OBJECTION BEFORE THE COMMITTEE.  SEE BARENBLATT V. UNITED STATES,
SUPRA, 123-125. 

PETITIONER, WHO WAS CALLED AS A WITNESS BY THE COMMITTEE IN JULY
1958, WHICH WAS EVEN BEFORE BARENBLATT WAS DECIDED, REFUSED TO ANSWER,
RELYING ON THE WATKINS AND SWEEZY DECISIONS "AS THEY INTERPRET THE
CONSTITUTION OF THE UNITED STATES, PROTECTING MY RIGHT TO PRIVATE
BELIEF AND ASSOCIATION." 

I THINK HE WAS ENTITLED TO RELY ON THEM.  THE ACT UNDER WHICH HE
STANDS CONVICTED STATES THAT A WITNESS IS GUILTY IF HE "WILFULLY MAKES
DEFAULT, OR WHO, HAVING APPEARED, REFUSES TO ANSWER ANY QUESTION
PERTINENT TO THE QUESTION UNDER INQUIRY."  2 U.S.C.  SEC. 192.  A
REFUSAL TO ANSWER WAS HELD IN SINCLAIR V. UNITED STATES, 279 U.S. 263,
299, NOT TO BE JUSTIFIED BECAUSE ONE ACTED IN GOOD FAITH, THE COURT
SAYING, "HIS MISTAKEN VIEW OF THE LAW IS NO DEFENSE."  YET NO ISSUE
CONCERNING THE FIRST AMENDMENT WAS INVOLVED IN THE SINCLAIR CASE.  WHEN
IT IS INVOLVED, AS IT IS HERE, THE PROPRIETY OF THE QUESTION IN TERMS
OF PERTINENCY SHOULD BE NARROWLY RESOLVED. 

THE RESOLUTION UNDER WHICH THE COMMITTEE ON UN-AMERICAN ACTIVITIES
ACTED IN THIS CASE (FN2) IS PRECISELY THE SAME AS THE ONE INVOLVED IN
WATKINS V. UNITED STATES, SUPRA.  WE SAID CONCERNING IT, "IT WOULD BE
DIFFICULT TO IMAGINE A LESS EXPLICIT AUTHORIZING RESOLUTION.  WHO CAN
DEFINE THE MEANING OF 'UN-AMERICAN'?  WHAT IS THAT SINGLE, SOLITARY
'PRINCIPLE OF THE FORM OF GOVERNMENT AS GUARANTEED BY OUR
CONSTITUTION'?  ...  AT ONE TIME, PERHAPS, THE RESOLUTION MIGHT HAVE
BEEN READ NARROWLY TO CONFINE THE COMMITTEE TO THE SUBJECT OF
PROPAGANDA.  THE EVENTS THAT HAVE TRANSPIRED IN THE FIFTEEN YEARS
BEFORE THE INTERROGATION OF PETITIONER MAKE SUCH A CONSTRUCTION
IMPOSSIBLE AT THIS DATE."  354 U.S., AT 202. 

WE EMPHASIZED THE NEED, WHEN FIRST AMENDMENT RIGHTS WERE IMPLICATED,
TO LAY A FOUNDATION BEFORE PROBING THAT AREA.  THE AUTHORITY OF THE
COMMITTEE MUST THEN "BE CLEARLY REVEALED IN ITS CHARTER."  ID., AT
198.  THE "SPECIFIC LEGISLATIVE NEED" MUST BE DISCLOSED.  ID., AT 205. 
THE PERTINENCY OF THE QUESTIONS AND THE SUBJECT MATTER UNDER INQUIRY
MUST BE MADE KNOWN "WITH THE SAME DEGREE OF EXPLICITNESS AND CLARITY
THAT THE DUE PROCESS CLAUSE REQUIRES IN THE EXPRESSION OF ANY ELEMENT
OF A CRIMINAL OFFENSE."  ID., AT 209. 

AFTER WATKINS ANYONE WAS ENTITLED TO RELY ON THOSE PROPOSITIONS FOR
PROTECTION OF HIS FIRST AMENDMENT RIGHTS.  THE CONDITIONS AND
CIRCUMSTANCES UNDER WHICH THE QUESTIONS WERE ASKED PETITIONER PLAINLY
DID NOT SATISFY THE REQUIREMENTS SPECIFIED IN WATKINS. 

THE SETTING OF THE SIX QUESTIONS (FN3) WHICH WERE ASKED PETITIONER
AND WHICH HE REFUSED TO ANSWER SHOWS NOTHING MORE THAN AN EXERCISE BY
HIM OF FIRST AMENDMENT RIGHTS OF SPEECH AND PRESS AND OF PETITION TO
CONGRESS.  IT WAS NOT SHOWN THAT THESE ACTIVITIES WERE PART OF A MATRIX
FOR THE OVERTHROW OF GOVERNMENT.  IT WAS NOT SHOWN - UNLESS THE BARE
WORD OF THE COMMITTEE IS TAKEN AS GOSPEL - THAT THESE CONSTITUTIONAL
ACTIVITIES HAD ANY RELATION WHATEVER TO COMMUNISM, SUBVERSION, OR
ILLEGAL ACTIVITY OF ANY SORT OR KIND.  IT WAS NOT SHOWN WHERE AND HOW
THE COMMITTEE WAS EVER GRANTED THE RIGHT TO INVESTIGATE THOSE WHO
PETITION CONGRESS FOR REDRESS OF GRIEVANCES. 

PETITIONER AND HIS WIFE WERE FIELD SECRETARIES OF AN ORGANIZATION
KNOWN AS THE SOUTHERN CONFERENCE EDUCATIONAL FUND.  PRIOR TO THE
COMMITTEE HEARING AT ATLANTA, GEORGIA, THEY WROTE A LETTER (FN4) ON THE
LETTERHEAD OF THE SOUTHERN CONFERENCE URGING PEOPLE TO WRITE THEIR
CONGRESSMEN AND SENATORS TO OPPOSE THREE BILLS PENDING BEFORE THE
CONGRESS WHICH WOULD, TO USE THEIR WORDS, "NULLIFY" A DECISION OF THIS
COURT "DECLARING STATE SEDITION LAWS INOPERATIVE."  THEY ADDED "WE ARE
ESPECIALLY CONCERNED ABOUT THIS BECAUSE WE KNOW FROM OUR OWN EXPERIENCE
HOW SUCH LAWS CAN BE USED AGAINST PEOPLE WORKING TO BRING ABOUT
INTEGRATION IN THE SOUTH.  MOST OF THESE STATE STATUTES ARE BROAD AND
LOOSELY WORDED, AND TO THE OFFICIALS OF MANY OF OUR SOUTHERN STATES
INTEGRATION IS SEDITION.  YOU CAN IMAGINE WHAT MAY HAPPEN IF EVERY
LITTLE PROSECUTOR IN THE SOUTH IS TURNED LOOSE WITH A STATE SEDITION
LAW." 

ALSO PRIOR TO THE COMMITTEE HEARING IN ATLANTA, A GROUP OF NEGROES
PETITIONED CONGRESS AGAINST THE PROPOSED ATLANTA INVESTIGATION OF THE
HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES.  THAT PETITION STATED: 

"WE ARE INFORMED THAT THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE
HOUSE OF REPRESENTATIVES IS PLANNING TO HOLD HEARINGS IN ATLANTA,
GEORGIA, AT AN EARLY DATE. 

"AS NEGROES RESIDING IN SOUTHERN STATES AND THE DISTRICT OF COLUMBIA,
ALL DEEPLY INVOLVED IN THE STRUGGLE TO SECURE FULL AND EQUAL RIGHTS FOR
OUR PEOPLE, WE ARE VERY MUCH CONCERNED BY THIS DEVELOPMENT. 

"WE ARE ACUTELY AWARE OF THE FACT THAT THERE IS AT THE PRESENT TIME A
SHOCKING AMOUNT OF UN-AMERICAN ACTIVITY IN OUR SOUTHERN STATES.  TO
CITE ONLY A FEW EXAMPLES, THERE ARE THE BOMBINGS OF THE HOMES, SCHOOLS,
AND HOUSES OF WORSHIP OF NOT ONLY NEGROES BUT ALSO OF OUR JEWISH
CITIZENS; THE TERROR AGAINST NEGROES IN DAWSON, GA.; THE CONTINUED
REFUSAL OF BOARDS OF REGISTRARS IN MANY SOUTHERN COMMUNITIES TO ALLOW
NEGROES TO REGISTER AND VOTE; AND THE ACTIVITIES OF WHITE CITIZENS
COUNCILS ENCOURAGING OPEN DEFIANCE OF THE UNITED STATES SUPREME COURT. 

"HOWEVER, THERE IS NOTHING IN THE RECORD OF THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES TO INDICATE THAT, IF IT COMES SOUTH, IT WILL
INVESTIGATE THESE THINGS.  ON THE CONTRARY, ALL OF ITS ACTIVITIES IN
RECENT YEARS SUGGEST THAT IT IS MUCH MORE INTERESTED IN HARASSING AND
LABELING AS 'SUBVERSIVE' ANY CITIZEN WHO IS INCLINED TO BE LIBERAL OR
AN INDEPENDENT THINKER. 

"FOR THIS REASON, WE ARE ALARMED AT THE PROSPECT OF THIS COMMITTEE
COMING SOUTH TO FOLLOW THE LEAD OF SENATOR EASTLAND, AS WELL AS SEVERAL
STATE INVESTIGATING COMMITTEES, IN TRYING TO ATTACH THE 'SUBVERSIVE'
LABEL TO ANY LIBERAL WHITE SOUTHERNER WHO DARES TO RAISE HIS VOICE IN
SUPPORT OF OUR DEMOCRATIC IDEALS. 

"IT WAS RECENTLY POINTED OUT BY FOUR NEGRO LEADERS WHO MET WITH
PRESIDENT EISENHOWER THAT ONE OF OUR GREAT NEEDS IN THE SOUTH IS TO
BUILD LINES OF COMMUNICATION BETWEEN NEGRO AND WHITE SOUTHERNERS. 
MANY PEOPLE IN THE SOUTH ARE SEEKING TO DO THIS.  BUT IF WHITE PEOPLE
WHO SUPPORT INTEGRATION ARE LABELED 'SUBVERSIVE' BY CONGRESSIONAL
COMMITTEES, TERROR IS SPREAD AMONG OUR WHITE CITIZENS AND IT BECOMES
INCREASINGLY DIFFICULT TO FIND WHITE PEOPLE WHO ARE WILLING TO SUPPORT
OUR EFFORTS FOR FULL CITIZENSHIP.  SOUTHERNERS, WHITE AND NEGRO, WHO
STRIVE TODAY FOR FULL DEMOCRACY MUST WORK AT BEST AGAINST TREMENDOUS
ODDS.  THEY NEED THE SUPPORT OF EVERY AGENCY OF OUR FEDERAL
GOVERNMENT.  IT IS UNTHINKABLE THAT THEY SHOULD INSTEAD BE HARASSED BY
COMMITTEES OF THE UNITED STATES CONGRESS. 

"WE THEREFORE URGE YOU TO USE YOUR INFLUENCE TO SEE THAT THE HOUSE
COMMITTEE ON UN-AMERICAN ACTIVITIES STAYS OUT OF THE SOUTH - UNLESS IT
CAN BE PERSUADED TO COME TO OUR REGION TO HELP DEFEND US AGAINST THOSE
SUBVERSIVES WHO OPPOSE OUR SUPREME COURT, OUR FEDERAL POLICY OF CIVIL
RIGHTS FOR ALL, AND OUR AMERICAN IDEALS OF EQUALITY AND BROTHERHOOD." 
PETITIONER WAS CHARGED BY THE COMMITTEE WITH PREPARING THAT PETITION;
COUNSEL FOR THE COMMITTEE LATER STATED THAT THE PURPOSE OF THE PETITION
WAS "PRECLUDING OR ATTEMPTING TO PRECLUDE OR SOFTENING THE VERY
HEARINGS WHICH WE PROPOSE TO HAVE HERE."  THE COMMITTEE SAID THAT IT
WAS NOT CONCERNED WITH INTEGRATION.  IT SAID THAT "A NUMBER OF NAMES ON
THAT LETTER WERE NAMES OF THOSE WHO HAD BEEN CLOSELY ASSOCIATED WITH
THE COMMUNIST PARTY.  THEIR INTEREST AND MAJOR PART DOES NOT LIE WITH
HONEST INTEGRATION.  THEIR INTEREST LIES WITH THE PURPOSES OF THE
COMMUNIST PARTY.  AND THAT IS WHAT WE ARE LOOKING INTO  ...  ." 

TWO OF THE QUESTIONS WHICH PETITIONER REFUSED TO ANSWER PERTAINED TO
THE SOUTHERN CONFERENCE, THE FIRST ONE BEING "DID YOU PARTICIPATE IN A
MEETING HERE AT THAT TIME?"  AND THE SECOND ONE WAS "WHO SOLICITED
QUARTERS TO BE MADE AVAILABLE TO THE SOUTHERN CONFERENCE EDUCATIONAL
FUND?" 

TWO OTHER QUESTIONS WHICH PETITIONER REFUSED TO ANSWER RELATED TO THE
EMERGENCY CIVIL LIBERTIES COMMITTEE.  THE FIRST OF THESE WAS "ARE YOU
CONNECTED WITH THE EMERGENCY CIVIL LIBERTIES COMMITTEE?"   THE SECOND
ONE WAS "DID YOU AND HARVEY O'CONNOR IN THE COURSE OF YOUR CONFERENCES
THERE IN RHODE ISLAND, DEVELOP PLANS AND STRATEGY OUTLINING WORK
SCHEDULES FOR THE EMERGENCY CIVIL LIBERTIES COMMITTEE?"  THE COMMITTEE
COUNSEL CHARGED THAT MR. O'CONNOR WAS "A HARD-CORE MEMBER OF THE
COMMUNIST CONSPIRACY, HEAD OF THE EMERGENCY CIVIL LIBERTIES
COMMITTEE." 

A FIFTH QUESTION WHICH PETITIONER REFUSED TO ANSWER RELATED TO THE
LETTER I HAVE PREVIOUSLY MENTIONED (FN5) WHICH HE AND HIS WIFE SENT TO
THE PEOPLE URGING THEM TO WRITE THEIR SENATORS AND CONGRESSMEN OPPOSING
THREE BILLS THAT WOULD REINSTATE STATE SEDITION LAWS.  THE QUESTION
RELATING TO THIS LETTER WAS "WERE YOU A MEMBER OF THE COMMUNIST PARTY
THE INSTANT YOU AFFIXED YOUR SIGNATURE TO THAT LETTER?"  THE SIXTH AND
FINAL QUESTION WHICH PETITIONER REFUSED TO ANSWER CONCERNED THE
SOUTHERN NEWSLETTER.  COUNSEL ASKED IF PETITIONER HAD "ANYTHING TO DO"
WITH THAT LETTER.  PETITIONER REPLIED "I THINK YOU ARE NOW INVADING
FREEDOM OF THE PRESS  ...  .  I OBJECT TO YOUR INVASION OF THE FREEDOM
OF THE PRESS, AND I ALSO DECLINE TO ANSWER THE QUESTIONS ON THE SAME
GROUNDS.  YOU ARE NOT ONLY ATTACKING INTEGRATIONISTS, YOU ARE ATTACKING
THE PRESS." 

THERE IS NOTHING IN THE RECORD TO SHOW THAT THE SOUTHERN CONFERENCE
OR THE EMERGENCY CIVIL LIBERTIES COMMITTEE OR THE SOUTHERN NEWSLETTER
HAD THE REMOTEST CONNECTION WITH THE COMMUNIST PARTY.   THERE IS ONLY
THE CHARGE OF THE COMMITTEE THAT THERE WAS SUCH A CONNECTION.  THAT
CHARGE AMOUNTS TO LITTLE MORE THAN INNUENDO.  THIS IS PARTICULARLY
CLEAR WITH RESPECT TO THE QUESTION RELATING TO PETITIONER'S MEMBERSHIP
IN THE COMMUNIST PARTY.  HAVING DRAWN PETITIONER'S ATTENTION TO THE
LETTER HE HAD WRITTEN, (FN6) COUNSEL FOR THE COMMITTEE DEMANDED TO KNOW
IF PETITIONER WAS A COMMUNIST "THE INSTANT YOU AFFIXED YOUR SIGNATURE
TO THAT LETTER."  NO FOUNDATION AT ALL HAD BEEN LAID FOR THAT QUESTION,
AND FROM THE RECORD NO PURPOSE FOR IT APPEARS, SAVE THE HOPE OF THE
COMMITTEE TO LINK COMMUNISM WITH THAT LETTER WHICH SUPPORTED THIS
COURT'S DECISION IN PENNSYLVANIA V. NELSON, SUPRA. THIS COURT, PASSING
ON THE PERTINENCY ISSUE IN BARENBLATT V. UNITED STATES, SUPRA, 123-125,
WAS CAREFUL TO EMPHASIZE THAT BARENBLATT "HAD HEARD THE SUBCOMMITTEE
INTERROGATE THE WITNESS CROWLEY ALONG THE SAME LINES AS HE, PETITIONER,
WAS EVIDENTLY TO BE QUESTIONED, AND HAD LISTENED TO CROWLEY'S TESTIMONY
IDENTIFYING HIM AS A FORMER MEMBER OF AN ALLEGED COMMUNIST STUDENT
ORGANIZATION ...  ."  NO SUCH FOUNDATION WAS EVER LAID HERE. 

ONE WOULD BE WHOLLY WARRANTED IN SAYING, I THINK, IN LIGHT OF THE
WATKINS AND SWEEZY DECISIONS THAT A COMMITTEE'S UNDISCLOSED INFORMATION
OR UNSUPPORTED SURMISE WOULD NOT JUSTIFY AN INVESTIGATION INTO MATTERS
THAT ON THEIR FACE SEEMED WELL WITHIN THE FIRST AMENDMENT.  (FN7)  IF
WATKINS AND SWEEZY DECIDED ANYTHING, THEY DECIED THAT BEFORE INROADS IN
THE FIRST AMENDMENT DOMAIN MAY BE MADE, SOME DEMONSTRABLE CONNECTION
WITH COMMUNISM MUST FIRST BE ESTABLISHED AND THE MATTER BE PLAINLY
SHOWN TO BE WITHIN THE SCOPE OF THE COMMITTEE'S AUTHORITY.  OTHERWISE
THE COMMITTEE MAY ROAM AT WILL, REQUIRING ANY INDIVIDUAL TO DISCLOSE
HIS ASSOCIATION WITH ANY GROUP OR WITH ANY PUBLICATION WHICH IS
UNPOPULAR WITH THE COMMITTEE AND WHICH IT CAN DISCREDIT BY CALLING IT
COMMUNISTIC. 

FN1  IN THAT CASE THE WITNESS TESTIFIED FREELY ABOUT HIMSELF BUT
BALKED AT TALKING ABOUT OTHERS: 

"I AM NOT GOING TO PLEAD THE FIFTH AMENDMENT, BUT I REFUSE TO ANSWER
CERTAIN QUESTIONS THAT I BELIEVE ARE OUTSIDE THE PROPER SCOPE OF YOUR
COMMITTEE'S ACTIVITIES.  I WILL ANSWER ANY QUESTIONS WHICH THIS
COMMITTEE PUTS TO ME ABOUT MYSELF.  I WILL ALSO ANSWER QUESTIONS ABOUT
THOSE PERSONS WHOM I KNEW TO BE MEMBERS OF THE COMMUNIST PARTY AND WHOM
I BELIEVE STILL ARE.  I WILL NOT, HOWEVER, ANSWER ANY QUESTIONS WITH
RESPECT TO OTHERS WITH WHOM I ASSOCIATED IN THE PAST.  I DO NOT BELIEVE
THAT ANY LAW IN THIS COUNTRY REQUIRES ME TO TESTIFY ABOUT PERSONS WHO
MAY IN THE PAST HAVE BEEN COMMUNIST PARTY MEMBERS OR OTHERWISE ENGAGED
IN COMMUNIST PARTY ACTIVITY BUT WHO TO MY BEST KNOWLEDGE AND BELIEF
HAVE LONG SINCE REMOVED THEMSELVES FROM THE COMMUNIST MOVEMENT. 

"I DO NOT BELIEVE THAT SUCH QUESTIONS ARE RELEVANT TO THE WORK OF
THIS COMMITTEE NOR DO I BELIEVE THAT THIS COMMITTEE HAS THE RIGHT TO
UNDERTAKE THE PUBLIC EXPOSURE OF PERSONS BECAUSE OF THEIR PAST
ACTIVITIES.  I MAY BE WRONG, AND THE COMMITTEE MAY HAVE THIS POWER, BUT
UNTIL AND UNLESS A COURT OF LAW SO HOLDS AND DIRECTS ME TO ANSWER, I
MOST FIRMLY REFUSE TO DISCUSS THE POLITICAL ACTIVITIES OF MY PAST
ASSOCIATES." 

FN2  THE RESOLUTION PROVIDES IN RELEVANT PART: 

"THE COMMITTEE ON UN-AMERICAN ACTIVITIES, AS A WHOLE OR BY
SUBCOMMITTEE, IS AUTHORIZED TO MAKE FROM TIME TO TIME INVESTIGATIONS OF
(1) THE EXTENT, CHARACTER, AND OBJECTS OF UN-AMERICAN PROPAGANDA
ACTIVITIES IN THE UNITED STATES, (2) THE DIFFUSION WITHIN THE UNITED
STATES OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT IS INSTIGATED FROM
FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN AND ATTACKS THE PRINCIPLE OF
THE FORM OF GOVERNMENT AS GUARANTEED BY OUR CONSTITUTION, AND (3) ALL
OTHER QUESTIONS IN RELATION THERETO THAT WOULD AID CONGRESS IN ANY
NECESSARY REMEDIAL LEGISLATION." 

FN3  PETITIONER WAS CONVICED ON EACH OF SIX COUNTS OF AN INDICTMENT
AND SENTENCED TO SERVE 12 MONTHS ON EACH COUNT, THE SENTENCES TO RUN
CONCURRENTLY.  THEREFORE IF ANY ONE OF THE COUNTS CAN BE SUSTAINED AN
AFFIRMANCE WOULD BE NECESSARY.  SEE CLAASSEN V. UNITED STATES, 142 U.S.
140, 147. 

FN4  "DEAR FRIEND: 

"WE ARE WRITING TO YOU BECAUSE OF YOUR INTEREST IN THE KENTUCKY
'SEDITION' CASES, WHICH WERE THROWN OUT OF COURT ON THE BASIS OF A
SUPREME COURT DECISION (PENNSYLVANIA V. NELSON, SUPRA) DECLARING STATE
SEDITION LAWS INOPERATIVE. 

"THERE ARE NOW PENDING IN BOTH HOUSES OF CONGRESS BILLS THAT WOULD
NULLIFY THIS DECISION.  WE UNDERSTAND THERE IS REAL DANGER THAT THESE
BILLS WILL PASS. 

"WE ARE ESPECIALLY CONCERNED ABOUT THIS BECAUSE WE KNOW FROM OUR OWN
EXPERIENCE HOW SUCH LAWS CAN BE USED AGAINST PEOPLE WORKING TO BRING
ABOUT INTEGRATION IN THE SOUTH.  MOST OF THESE STATE STATUTES ARE BROAD
AND LOOSELY WORDED, AND TO THE OFFICIALS OF MANY OF OUR SOUTHERN STATES
INTEGRATION IS SEDITION.  YOU CAN IMAGINE WHAT MAY HAPPEN IF EVERY
LITTLE LOCAL PROSECUTOR IN THE SOUTH IS TURNED LOOSE WITH A STATE
SEDITION LAW. 

"IT IS SMALL COMFORT TO REALIZE THAT SUCH CASES WOULD PROBABLY
EVENTUALLY BE THROWN OUT BY THE SUPREME COURT.  BEFORE SUCH A CASE
REACHES THE SUPREME COURT, THE HUMAN BEINGS INVOLVED HAVE SPENT SEVERAL
YEARS OF THEIR LIVES FIGHTING OFF THE ATTACK, THEIR TIME AND TALENTS
HAVE BEEN DIVERTED FROM THE POSITIVE STRUGGLE FOR INTEGRATION, AND
MONEY NEEDED FOR THAT STRUGGLE HAS BEEN SPENT IN A DEFENSIVE BATTLE. 

"IT SHOULD ALSO BE POINTED OUT THAT THESE BILLS TO VALIDATE STATE
SEDITION LAWS ARE ONLY A PART OF A SWEEPING ATTACK ON THE U.S. SUPREME
COURT.  THE REAL AND ULTIMATE TARGET IS THE COURT DECISIONS OUTLAWING
SEGREGATION.  WON'T YOU WRITE YOUR TWO SENATORS AND YOUR CONGRESSMAN
ASKING THEM TO OPPOSE S. 654, S. 2646, AND H.R. 977.  ALSO ASK THEM TO
STAND FIRM AGAINST ALL EFFORTS TO CURB THE SUPREME COURT.  IT IS
IMPORTANT THAT YOU WRITE - AND GET OTHERS TO WRITE - IMMEDIATELY AS THE
BILLS MAY COME UP AT ANY TIME. 

                         "CORDIALLY YOURS,

                           "CARL AND ANNE BRADEN,

                                      "FIELD SECRETARIES." 

FN5  SUPRA, NOTE 4. 

FN6  SEE SUPRA, NOTE 4. 

FN7  "THE CONSEQUENCES THAT FLOW FROM THIS SITUATION ARE MANIFOLD. 
IN THE FIRST PLACE, A REVIEWING COURT IS UNABLE TO MAKE THE KIND OF
JUDGMENT MADE BY THE COURT IN UNITED STATES V. RUMELY, SUPRA.  THE
COMMITTEE IS ALLOWED, IN ESSENCE, TO DEFINE ITS OWN AUTHORITY, TO
CHOOSE THE DIRECTION AND FOCUS OF ITS ACTIVITIES.  IN DECIDING WHAT TO
DO WITH THE POWER THAT HAS BEEN CONFERRED UPON THEM, MEMBERS OF THE
COMMITTEE MAY ACT PURSUANT TO MOTIVES THAT SEEM TO THEM TO BE THE
HIGHEST.  THEIR DECISIONS, NEVERTHELESS, CAN LEAD TO RUTHLESS EXPOSURE
OF PRIVATE LIVES IN ORDER TO GATHER DATA THAT IS NEITHER DESIRED BY THE
CONGRESS NOR USEFUL TO IT.  YET IT IS IMPOSSIBLE IN THIS CIRCUMSTANCE,
WITH CONSTITUTIONAL FREEDOMS IN JEOPARDY, TO DECLARE THAT THE COMMITTEE
HAS RANGED BEYOND THE AREA COMMITTED TO IT BY ITS PARENT ASSEMBLY
BECAUSE THE BOUNDARIES ARE SO NEBULOUS."  354 U.S., AT 204. 
..END :








PUGACH V. DOLLINGER 365 U.S. 458 


NO. 111.  ARGUED JANUARY 16, 1961 - DECIDED FEBRUARY 27, 1961 - 277 F.2D
739, AFFIRMED. 


A FEDERAL COURT MAY NOT ENJOIN THE USE IN A CRIMINAL TRIAL IN A STATE
COURT OF EVIDENCE OBTAINED BY WIRE TAPPING IN VIOLATION OF SEC. 605 OF
THE FEDERAL COMMUNICATIONS ACT.  SCHWARTZ V. TEXAS, 344 U.S. 199;
STEFANELLI V. MINARD, 342 U.S. 117. 

PUGACH V. DOLLINGER, DISTRICT ATTORNEY OF BRONX COUNTY, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED ON THE AUTHORITY OF SCHWARTZ V. TEXAS, 344
U.S. 199, AND STEFANELLI V. MINARD, 342 U.S. 117. 

MR. JUSTICE BRENNAN WOULD ALSO AFFIRM BUT SOLELY ON THE AUTHORITY OF
STEFANELLI V. MINARD, 342 U.S. 117. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

IN SCHWARTZ V. TEXAS, 344 U.S. 199, A PAWNBROKER WAS CONVICTED AS AN
ACCOMPLICE IN A ROBBERY.  RECORDS OF HIS TELEPHONE CONVERSATIONS,
GOTTEN BY POLICE EAVESDROPPING, WERE ADMITTED IN EVIDENCE AGAINST HIM
DURING HIS TRIAL IN THE STATE COURT.  HE CLAIMED THAT SUCH EVIDENCE WAS
INADMISSIBLE UNDER 47 U.S.C. SEC. 605.  (FN1)  THIS COURT REJECTED THAT
CLAIM WITHOUT EVEN STOPPING TO SEE IF INDEED THERE HAD BEEN A VIOLATION
OF THE FEDERAL STATUTE.  THE RATIONALE OF THAT REJECTION WAS THAT,
"WHERE A STATE HAS CAREFULLY LEGISLATED SO AS NOT TO RENDER
INADMISSIBLE EVIDENCE OBTAINED AND SOUGHT TO BE DIVULGED IN VIOLATION
OF THE LAWS OF THE UNITED STATES, THIS COURT WILL NOT EXTEND BY
IMPLICATION THE STATUTE OF THE UNITED STATES SO AS TO INVALIDATE THE
SPECIFIC LANGUAGE OF THE STATE STATUTE."  ID., 202. 

THE LATER DECISION OF THIS COURT IN BENANTI V. UNITED STATES, 355
U.S. 96, SWEPT AWAY THAT RATIONALE, AND SCHWARTZ V. TEXAS, SUPRA, TODAY
STANDS ALONE AS AN ABERRATION FROM THE OTHERWISE VIGOROUS ENFORCEMENT
THIS COURT HAS GIVEN TO THE CONGRESSIONAL POLICY EMBODIED IN 47 U.S.C.
SEC. 605.  FOR IN BENANTI, IN SETTING ASIDE A FEDERAL CONVICTION, WE
HELD THAT THE PROSCRIPTION OF WIRETAPPING CONTAINED IN SEC. 605 FORBADE
WIRETAPPING BY AN AUTHORIZED EXECUTIVE OFFICER OF THE STATE, ACTING
UNDER THE EXPLICIT TERMS OF A STATE STATUTE AND PURSUANT TO A WARRANT
ISSUED BY THE STATE JUDICIARY.  "KEEPING IN MIND THE COMPREHENSIVE
SCHEME OF INTERSTATE REGULATION AND THE PUBLIC POLICY UNDERLYING
A PROHIBITION IN PLAIN TERMS, DID NOT MEAN TO ALLOW STATE LEGISLATION
WHICH WOULD CONTRADICT THAT SECTION AND THAT POLICY."  ID., 105-106. 
IT SEEMS INCONGRUOUS TO ME THAT THIS SWEEPING CONGRESSIONAL PURPOSE
SHOULD NOW BE HELD TO MAKE A DETOUR AROUND THE PRECINCTS OF A STATE
COURT.  THIS IS ESPECIALLY TRUE WHERE, AS HERE, OFFICIALS HAVE SHOWN
SUCH AN AVID TASTE FOR VIOLATING THE LAW.  SEE DASH, SCHWARTZ AND
KNOWLTON, THE EAVESDROPPERS, PP. 68-69.  IN SUCH CIRCUMSTANCES, REDRESS
- OTHER THAN BY AN EXCLUSIONARY RULE - AGAINST THE CRIMINAL ACTS OF
THOSE WHO BEAR THE BADGE OF THE LAW IS NEITHER EASY NOR GENEROUS.  CF.
WOLF V. COLORADO, 338 U.S. 25, 41, 42-44 (DISSENTING OPINION). 

YET TODAY A MAJORITY OF THIS COURT SUMMARILY HOLDS THAT SCHWARTZ V.
TEXAS, SUPRA, IS STILL THE LAW, AND PETITIONER IS LEFT ONLY WITH THE
CONSOLING KNOWLEDGE THAT CONGRESS MEANT TO PROTECT THE PRIVACY OF HIS
TELEPHONE CONVERSATIONS, (FN2) WHILE THE BENEFITS OF THE CONGRESSIONAL
INTENDMENT ARE DENIED HIM. 

PETITIONER IS CHARGED, IN A NEW YORK STATE COURT, WITH THE COMMISSION
OF SEVERAL SERIOUS CRIMES.  HIS COMPLAINT IN THE INSTANT PROCEEDING
ALLEGED THAT "ON OR ABOUT JUNE 15TH, 1959, AND THEREAFTER" AGENTS OF
THE DISTRICT ATTORNEY AND OF THE NEW YORK POLICE FORCE TAPPED HIS
TELEPHONE WIRES PURSUANT TO A STATE COURT WARRANT AND "OBTAINED CERTAIN
INFORMATION."  THAT INFORMATION, AND OTHER EVIDENCE TO WHICH IT LED,
WAS DIVULGED TO THE GRAND JURY, WHICH INDICTED PETITIONER, AND TO THE
PRESS.  BUT MORE IMPORTANTLY THERE WAS THE ALLEGATION THAT THE
"DEFENDANTS INTEND TO USE THE EVIDENCE OBTAINED BY USE OF THE AFORESAID
ILLEGAL WIRE TAPS AND THE INFORMATION OBTAINED THROUGH THE ILLEGAL USE
OF THE AFORESAID WIRE TAPS UPON THE TRIAL" WHICH PETITIONER IMMINENTLY
FACES.  THE PRAYER ASKED THAT THE DEFENDANTS BE ENJOINED "FROM
PROCEEDING  ...  UPON THE INDICTMENTS  ...  ON ANY GROUNDS IN WHICH
THEY MAY USE WIRE TAPPING EVIDENCE, OR ON ANY GROUNDS OR INVESTIGATIONS
RESULTING FROM OR INSTITUTED AS A RESULT OF THE AFORESAID ILLEGAL WIRE
TAPS." 

THERE IS NO DOUBT THAT, ONCE THE WIRE-TAP EVIDENCE IS PUT IN DURING
THE IMPENDING TRIAL, PETITIONER IS WITHOUT REMEDY FOR THE PREJUDICE IT
DOES HIM IN THAT TRIAL, EITHER IN THE STATE COURTS, PEOPLE V. VARIANO,
5 N.Y.2D 391, 157 N.E.2D 857, OR, UNDER SCHWARTZ V. TEXAS, SUPRA, IN
THE FEDERAL COURTS. 

IN STEFANELLI V. MINARD, 342 U.S. 117, THE PETITIONER WAS CHARGED
WITH A VIOLATION OF THE STATE GAMBLING LAWS.  HE SOUGHT TO ENJOIN THE
USE, AT HIS TRIAL, OF EVIDENCE OBTAINED BY A POLICE INVASION OF HIS
HOME, AN INVASION ADMITTEDLY IN VIOLATION OF THE COMMAND OF THE FOURTH
AMENDMENT.  RELIEF WAS DENIED IN THE EXERCISE OF EQUITABLE DISCRETION,
THREE FACTORS BEING RELIED ON.  FIRST, THE PETITIONER, IT WAS SAID,
COULD SHOW NO IRREPARABLE INJURY, FOR, AT WORST, HE WOULD GO TO JAIL ON
THE EVIDENCE SOUGHT TO BE SUPPRESSED.  SECOND, IT WAS SUPPOSED THAT THE
FEDERAL COURT WAS BEING ASKED "TO INTERVENE PIECEMEAL TO TRY COLLATERAL
ISSUES."  AT 123.  THIRD, AND OVERRIDING THE FIRST TWO, WAS THE
TRADITIONAL RELUCTANCE OF A FEDERAL COURT TO MEDDLE IN STATE COURT
PROCEEDINGS, AND ESPECIALLY IN STATE COURT CRIMINAL PROCEEDINGS. 

THE STRONGEST EXPRESSION OF THAT RELUCTANCE IS FOUND IN THE GENERAL
PROHIBITION OF FEDERAL INJUNCTIONS "TO STAY PROCEEDINGS IN A STATE
COURT."  28 U.S.C. SEC. 2283.  ALTHOUGH THAT PROVISION BARS AN
INJUNCTION OPERATING ON A PARTY, AFTER COMMENCEMENT OF THE STATE COURT
PROCEEDINGS, AS WELL AS AN INJUNCTION DIRECTLY AGAINST THE STATE COURT,
HARKRADER V. WADLEY, 172 U.S. 148; EX PARTE YOUNG, 209 U.S. 123, 161
162, IT IS NOT DIRECTLY INVOLVED HERE.  HERE THE THRUST OF THE RELIEF
IS ONLY TO ENJOIN THE USE OF WIRE-TAP EVIDENCE, NOT TO ENJOIN THE
ACTION ITSELF.  HENCE THERE IS NO BAR TO MAINTAINING THE ACTION.  CF.
REA V. UNITED STATES, 350 U.S. 214.  WHERE, AS HERE, THE RELIEF SOUGHT
IS THE ADJUDICATION OF COLLATERAL MATTERS WHICH CANNOT BE ADJUDICATED
IN THE STATE PROCEEDINGS UNDER STATE LAW, THERE IS NO OCCASION TO
INVOKE THE STATUTE.  "THAT PROVISION IS AN HISTORICAL MECHANISM (ACT OF
MARCH 2, 1793, 1 STAT. 334, 335) FOR ACHIEVING HARMONY IN ONE PHASE OF
OUR COMPLICATED FEDERALISM BY AVOIDING NEEDLESS FRICTION BETWEEN TWO
SYSTEMS OF COURTS HAVING POTENTIAL JURISDICTION OVER THE SAME SUBJECT
MATTER."  HALE V. BIMCO TRADING CO., 306 U.S. 375, 378.   HENCE I DO
NOT REACH THE QUESTIONS THAT WOULD BE RAISED IF WE HAD BEFORE US THE
ALTERNATIVE OF ENJOINING THE STATE ACTION (FN3) OR WITHHOLDING ALL
RELIEF. 

CAN THE DANGERS OF ALLOWING THIS EARLY RESORT TO THE FEDERAL COURT
OUTWEIGH THE WRONG OF SUBJECTING PETITIONER TO THE RISK OF CONVICTION
AND IMPRISONMENT ON THE STRENGTH OF CRIMINALLY OBTAINED AND CRIMINALLY
PRESENTED EVIDENCE?  THIS IS NOT A CASE WHERE THERE IS PIECEMEAL RESORT
FROM ONE COURT TO ANOTHER.  THIS REMEDY IS THE ONLY ONE WHICH IS
AVAILABLE TO PROTECT A FEDERAL RIGHT.  (FN4)  IT IS NOT A CASE WHERE AN
APPEAL IS PROPERLY DELAYED, SO THAT THE ASSERTED ERROR MAY BE SEEN IN
THE CONTEXT OF THE WHOLE TRIAL, AS NO REVIEW AT ALL IS AVAILABLE.  FOR
THE SAME REASON, THIS IS NO CASE FOR THE EXERCISE OF EQUITABLE
DISCRETION.  IF THE FEDERAL QUESTION IS NOT NOW PROTECTED, IT CAN NEVER
BECOME THE BASIS FOR RELIEF. 

THE DOCTRINE OF EQUITABLE DISCRETION PROPERLY INVOLVES NO MORE THAN A
CHOICE AMONG REMEDIES, AN ORDERLY MANAGEMENT OF JUDICIAL PROCEDURES. 
DOUBTLESS THERE ARE TIMES WHEN EQUITY SHOULD LEAVE PARTIES TO THEIR
REMEDY "AT LAW," I.E., TO THEIR REMEDY IN THE ORDINARY COURSE OF THE
THREATENED PROCEEDING.  BUT ONCE IT IS ESTABLISHED THAT THE OTHER
PROCEEDING OFFERS NO REMEDY, THE RATIONALE OF EQUITABLE DISCRETION
DISAPPEARS.  IT BECOMES NO MORE THAN THE LEGAL LANGUAGE WHICH CLOTHES
THE DENIAL OF A RIGHT IN THE GUISE OF A MERE PROCEDURAL DECISION. 
UNLESS AND UNTIL SCHWARTZ V. TEXAS, SUPRA, IS OVERRULED, THE EXERCISE
OF EQUITABLE DISCRETION TO DENY PRELIMINARY RELIEF FROM THE THREATENED
USE OF WIRE-TAP EVIDENCE IS WHOLLY UNJUSTIFIED.  UNLESS AND UNTIL
SCHWARTZ V. TEXAS, SUPRA, IS OVERRULED, THE EXERCISE OF EQUITABLE
DISCRETION TO DENY PRELIMINARY RELIEF FROM THE THREATENED USE OF WIRE
TAP EVIDENCE IS WHOLLY UNJUSTIFIED.  UNLESS AND UNTIL SCHWARTZ IS
OVERRULED, THE BENEFICIENT EFFECT OF SEC. 605 WILL BE STULTIFIED BY THE
ADMISSION OF TAINTED EVIDENCE IN STATE TRIALS.  THE PRIVACY OF THE
INDIVIDUAL, HISTORY ASSURES US, CAN NEVER BE PROTECTED WHERE ITS
VIOLATION BY STATE OFFICERS MEETS WITH REWARD RATHER THAN PUNISHMENT. 

FN1  "  ...  AND NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL
INTERCEPT ANY COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE,
CONTENTS, SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED
COMMUNICATION TO ANY PERSON  ...  ."  SEE NARDONE V. UNITED STATES, 302
U.S. 379; NARDONE V. UNITED STATES, 308 U.S. 338; WEISS V. UNITED
STATES, 308 U.S. 321; BENANTI V. UNITED STATES, SUPRA; CF. GOLDSTEIN V.
UNITED STATES, 316 U.S. 114; RATHBUN V. UNITED STATES, 355 U.S. 107. 

FN2  SCHWARTZ V. TEXAS, SUPRA, STANDS FOR NO MORE THAN A REFUSAL, AS
A MATTER OF FEDERAL LAW, TO VOID A CONVICTION SAID TO BE BASED ON WIRE
TAP EVIDENCE.  THE WITNESS WHO DIVULGES WIRE-TAP INFORMATION IS NO LESS
GUILTY OF A FEDERAL CRIME.  SEE SCHWARTZ V. TEXAS, SUPRA, 201.  NOR,
AFTER BENANTI, DOES THE FACT THAT NEW YORK PURPORTED TO AUTHORIZE THIS
POLICE WIRE TAP SAVE IT FROM ILLEGALITY.  SEE IN RE TELEPHONE
COMMUNICATIONS, 9 MISC. 2D 121, 170 N.Y.S.2D 84; MATTER OF INTERCEPTION
OF TELEPHONE COMMUNICATIONS, 23 MISC. 2D 543, 198 N.Y.S.2D 572.  AS I
INDICATED IN MY DISSENT IN SCHWARTZ V. TEXAS, SUPRA, 205, I AM OF THE
OPINION THAT A WIRE TAP IS A SEARCH WITHIN THE MEANING OF THE FOURTH
AMENDMENT, SO THAT, IN THE ABSENCE OF ILLEGALITY UNDER SEC. 605, I
WOULD HAVE TO CONSIDER IF THE NEW YORK WIRE-TAP PROCEDURE MEETS THE
CONSTITUTIONAL TEST OF REASONABLENESS.  BUT UNDER SEC. 605, ALL WIRE
TAPS ARE FORBIDDEN. 

FN3  28 U.S.C. SEC. 2283 PROVIDES FOR THREE CLASSES OF EXCEPTION:
(1) AS EXPRESSLY AUTHORIZED BY ACT OF CONGRESS, (2) WHERE NECESSARY IN
AID OF JURISDICTION, AND (3) TO PROTECT OR EFFECTUATE ITS JUDGMENTS. 
CF. TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118.  INJUNCTION AGAINST
THE COMMENCEMENT OF STATE COURT CRIMINAL PROCEEDINGS HAS LONG BEEN THE
FIRST LINE OF DEFENSE FOR FEDERALLY SECURED RIGHTS.  AS RESPECTS
FEDERALLY SECURED CIVIL RIGHTS SEE, E.G., TRUAX V. RAICH, 239 U.S. 33;
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510; TERRACE V. THOMPSON, 263
U.S. 197; HAGUE V. C.I.O., 307 U.S. 496; CF. DOUGLAS V. JEANNETTE, 319
U.S. 157.  AS RESPECTS FEDERALLY SECURED ECONOMIC RIGHTS SEE, E.G.,
HYNES V. GRIMES PACKING CO., 337 U.S. 86; CLINE V. FRINK DAIRY CO., 274
U.S. 445; HYGRADE PROVISION CO. V. SHERMAN, 266 U.S. 497. 

FN4  JUDGE CLARK, DISSENTING IN THIS CASE BELOW, SAID:  "IN SUM IT IS
BEYOND DISPUTE THAT THERE IS A GENERAL, INDEED UNIVERSAL, CUSTOM OF
FEDERAL LAW VIOLATION.  NOW THIS IS A DISTRESSING SITUATION, MADE NOT
LESS SO THAT IN THE EYES OF MANY WORTHY CITIZENS IT IS REQUIRED BY THE
ASSERTED EXIGENCIES OF SUCCESSFUL LAW ADMINISTRATION.  BUT IT IS NOT AN
UNUSUAL SITUATION.  FOR ACTUALLY IT IS A CLASH BETWEEN FEDERAL AND
STATE GOVERNMENTAL POLICIES.  AS SUCH IT IS A RECURRING STRUGGLE IN OUR
HISTORY AND QUITE POSSIBLY A NECESSARY ONE TO A FEDERAL FORM OF
GOVERNMENT.  IN THE PAST WE HAVE FOUND WAYS OF MEETING AND SOLVING THE
PROBLEM.  OF COURSE THERE ARE SEVERAL FORMS OF REMEDY; BUT THE ONE TO
WHICH THERE SEEMS CONTINUAL RETURN WHEN OTHER REMEDIES FAIL IS THE
RESORT TO THE EQUITY POWERS OF THE FEDERAL COURTS TO ENJOIN REPEATED
VIOLATIONS OF THE CRIMINAL LAW."  277 F.2D, AT 748-749. 
..END :























THOMPSON V. WHITTIER 365 U.S. 465 


NO. 500.  DECIDED FEBRUARY 27, 1961 - REPORTED BELOW:  185 F. SUPP.
306. 


APPEAL DISMISSED BECAUSE THE CASE DOES NOT ARISE UNDER 28 U.S.C. SEC.
2282 AND CANNOT BE APPEALED DIRECTLY TO THIS COURT UNDER 28 U.S.C. SEC.
1253. 

THOMPSON V. WHITTIER, ADMINISTRATOR OF VETERANS AFFAIRS. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED.  THE CASE DOES NOT ARISE UNDER 28
U.S.C. SEC. 2282, REQUIRING THE CONVENING OF A THREE-JUDGE COURT.  SEE
I.L.G.W.U. V. DONNELLY GARMENT CO., 304 U.S. 243.  THEREFORE IT CANNOT
BE DIRECTLY BROUGHT HERE FOR REVIEW UNDER 28 U.S.C. SEC. 1253, AND THE
APPEAL MUST BE DISMISSED.  APPELLANT IS FREE TO PURSUE HIS PERFECTED
APPEAL IN THE COURT OF APPEALS. 
..END :







S.S. KRESGE CO. V. BOWERS 365 U.S. 466 


NO. 534.  DECIDED FEBRUARY 27, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  170 OHIO ST. 405, 166
N.E.2D 139. 


S.S. KRESGE CO. V. BOWERS, TAX COMMISSIONER OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















EASTERN RAILROAD PRESIDENTS CONFERENCE V. NOERR MOTOR FREIGHTS, INC. 365
U.S. 127 


NO. 50.  ARGUED DECEMBER 12-13, 1960 - DECIDED FEBRUARY 20, 1961 - 273
F.2D 218, REVERSED. 


A GROUP OF TRUCKING COMPANIES AND THEIR TRADE ASSOCIATION SUED UNDER
SEC. 4 OF THE CLAYTON ACT FOR TREBLE DAMAGES AND INJUNCTIVE RELIEF
AGAINST A GROUP OF RAILROADS, A RAILROAD ASSOCIATION AND A PUBLIC
RELATIONS FIRM, CHARGING THAT THE DEFENDANTS HAD CONSPIRED TO RESTRAIN
TRADE IN, AND MONOPOLIZE, THE LONG-DISTANCE FREIGHT BUSINESS, IN
VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN ACT.  THEY ALLEGED, INTER
ALIA, THAT THE RAILROADS HAD ENGAGED THE PUBLIC RELATIONS FIRM TO
CONDUCT A PUBLICITY CAMPAIGN AGAINST THE TRUCKERS DESIGNED TO FOSTER
THE ADOPTION AND RETENTION OF LAWS AND LAW ENFORCEMENT PRACTICES
DESTRUCTIVE OF THE TRUCKING BUSINESS, TO CREATE AN ATMOSPHERE OF
DISTASTE FOR THE TRUCKERS AMONG THE GENERAL PUBLIC AND TO IMPAIR THE
RELATIONSHIPS EXISTING BETWEEN THE TRUCKERS AND THEIR CUSTOMERS.  AFTER
A TRIAL, THE DISTRICT COURT ENTERED A JUDGMENT AWARDING DAMAGES TO THE
PLAINTIFFS AND ENJOINING THE PRACTICES COMPLAINED OF.  HELD:  THE
JUDGMENT IS REVERSED.  PP. 128-145. 

(A)  NO VIOLATION OF THE SHERMAN ACT CAN BE PREDICATED UPON MERE
ATTEMPTS TO INFLUENCE THE PASSAGE OR ENFORCEMENT OF LAWS.  PP. 135
136. 

(B)  THE SHERMAN ACT DOES NOT PROHIBIT TWO OR MORE PERSONS FROM
ASSOCIATING TOGETHER IN AN ATTEMPT TO PERSUADE THE LEGISLATURE OR THE
EXECUTIVE TO TAKE PARTICULAR ACTION WITH RESPECT TO A LAW THAT WOULD
PRODUCE A RESTRAINT OR MONOPOLY; AND IT DOES NOT APPLY TO THE
ACTIVITIES OF THESE RAILROADS, AT LEAST INSOFAR AS THOSE ACTIVITIES
COMPRISED MERE SOLICITATION OF GOVERNMENTAL ACTION WITH RESPECT TO THE
PASSAGE AND ENFORCEMENT OF LAWS.  PP. 136-138. 

(C)  AT LEAST INSOFAR AS THE RAILROADS' CAMPAIGN WAS DIRECTED TOWARD
OBTAINING GOVERNMENTAL ACTION, IT WAS NOT MADE VIOLATIVE OF THE SHERMAN
ACT BY ANY ANTICOMPETITIVE PURPOSE IT MAY HAVE HAD, SUCH AS A PURPOSE
TO DESTROY THE TRUCKERS AS COMPETITORS FOR THE LONG-DISTANCE FREIGHT
BUSINESS.  PP. 138-140. 

(D)  NOR WAS THE RAILROADS' CAMPAIGN MADE VIOLATIVE OF THE SHERMAN
ACT BY THEIR USE OF THE SO-CALLED THIRD-PARTY TECHNIQUE, WHEREBY
PROPAGANDA ACTUALLY CIRCULATED BY A PARTY IN INTEREST IS GIVEN THE
APPEARANCE OF BEING THE SPONTANEOUSLY EXPRESSED VIEWS OF INDEPENDENT
PERSONS AND CIVIC GROUPS.  PP. 140-142. 

(E)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FINDING OF THE
DISTRICT COURT THAT THE RAILROADS' CAMPAIGN WAS INTENDED TO, AND DID IN
FACT, INJURE THE TRUCKERS IN THEIR RELATIONSHIPS WITH THE PUBLIC AND
WITH THEIR CUSTOMERS.  PP. 142-145. 

EASTERN RAILROAD PRESIDENTS CONFERENCE ET AL. V. NOERR MOTOR FREIGHT,
INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AMERICAN RAILROADS HAVE ALWAYS LARGELY DEPENDED UPON INCOME FROM THE
LONG-DISTANCE TRANSPORTATION OF HEAVY FREIGHT FOR ECONOMIC SURVIVAL. 
DURING THE EARLY YEARS OF THEIR EXISTENCE, THEY HAD VIRTUALLY NO
COMPETITION IN THIS ASPECT OF THEIR BUSINESS, BUT, AS EARLY AS THE
1920'S, THE GROWTH OF THE TRUCKING INDUSTRY IN THIS COUNTRY BEGAN TO
BRING ABOUT CHANGES IN THIS SITUATION.  FOR THE TRUCKERS FOUND, JUST AS
THE RAILROADS HAD LEARNED EARLIER, THAT A VERY PROFITABLE PART OF THE
TRANSPORATION BUSINESS WAS THE LONG HAULING OF HEAVY FREIGHT.  AS THE
TRUCKING INDUSTRY BECAME MORE AND MORE POWERFUL, THE COMPETITION
BETWEEN IT AND THE RAILROADS FOR THIS BUSINESS BECAME INCREASINGLY
INTENSE UNTIL, DURING THE PERIOD FOLLOWING THE CONCLUSION OF WORLD WAR
II, AT LEAST THE RAILROADS, IF NOT BOTH OF THE COMPETING GROUPS, CAME
TO VIEW THE STRUGGLE AS ONE OF ECONOMIC LIFE OR DEATH FOR THEIR METHOD
OF TRANSPORTATION.  THE PRESENT LITIGATION IS AN OUTGROWTH OF ONE PART
OF THAT STRUGGLE. 

THE CASE WAS COMMENCED BY A COMPLAINT FILED IN THE UNITED STATES
DISTRICT COURT IN PENNSYLVANIA ON BEHALF OF 41 PENNSYLVANIA TRUCK
OPERATORS AND THEIR TRADE ASSOCIATION, THE PENNSYLVANIA MOTOR TRUCK
ASSOCIATION.  THIS COMPLAINT, WHICH NAMED AS DEFENDANTS 24 EASTERN
RAILROADS, AN ASSOCIATION OF THE PRESIDENTS OF THOSE RAILROADS KNOWN AS
THE EASTERN RAILROAD PRESIDENTS CONFERENCE, AND A PUBLIC RELATIONS
FIRM, CARL BYOIR & ASSOCIATES, INC., CHARGED THAT THE DEFENDANTS HAD
CONSPIRED TO RESTRAIN TRADE IN AND MONOPOLIZE THE LONG-DISTANCE FREIGHT
BUSINESS IN VIOLATION OF SECS. 1 (FN1) AND 2 (FN2) OF THE SHERMAN ACT. 
THE GIST OF THE CONSPIRACY ALLEGED WAS THAT THE RAILROADS HAD ENGAGED
BYOIR TO CONDUCT A PUBLICITY CAMPAIGN AGAINST THE TRUCKERS DESIGNED TO
FOSTER THE ADOPTION AND RETENTION OF LAWS AND LAW ENFORCEMENT PRACTICES
DESTRUCTIVE OF THE TRUCKING BUSINESS, TO CREATE AN ATMOSPHERE OF
DISTASTE FOR THE TRUCKERS AMONG THE GENERAL PUBLIC, AND TO IMPAIR THE
RELATIONSHIPS EXISTING BETWEEN THE TRUCKERS AND THEIR CUSTOMERS.  THE
CAMPAIGN SO CONDUCTED WAS DESCRIBED IN THE COMPLAINT AS "VICIOUS,
CORRUPT, AND FRAUDULENT," FIRST, IN THAT THE SOLE MOTIVATION BEHIND IT
WAS THE DESIRE ON THE PART OF THE RAILROADS TO INJURE THE TRUCKERS AND
EVENTUALLY TO DESTROY THEM AS COMPETITORS IN THE LONG-DISTANCE FREIGHT
BUSINESS, AND, SECONDLY, IN THAT THE DEFENDANTS UTILIZED THE SO-CALLED
THIRD-PARTY TECHNIQUE, THAT IS, THE PUBLICITY MATTER CIRCULATED IN THE
CAMPAIGN WAS MADE TO APPEAR AS SPONTANEOUSLY EXPRESSED VIEWS OF
INDEPENDENT PERSONS AND CIVIC GROUPS WHEN, IN FACT, IT WAS LARGELY
PREPARED AND PRODUCED BY BYOIR AND PAID FOR BY THE RAILROADS.  (FN3)
THE COMPLAINT THEN WENT ON TO SUPPLEMENT THESE MORE OR LESS GENERAL
ALLEGATIONS WITH SPECIFIC CHARGES AS TO PARTICULAR INSTANCES IN WHICH
THE RAILROADS HAD ATTEMPTED TO INFLUENCE LEGISLATION BY MEANS OF THEIR
PUBLICITY CAMPAIGN.  ONE OF SEVERAL SUCH CHARGES WAS THAT THE
DEFENDANTS HAD SUCCEEDED IN PERSUADING THE GOVERNOR OF PENNSYLVANIA TO
VETO A MEASURE KNOWN AS THE "FAIR TRUCK BILL," (FN4) WHICH WOULD HAVE
PERMITTED TRUCKERS TO CARRY HEAVIER LOADS OVER PENNSYLVANIA ROADS. 

THE PRAYER OF THE COMPLAINT WAS FOR TREBLE DAMAGES UNDER SEC. 4 OF
THE CLAYTON ACT (FN5) AND AN INJUNCTION RESTRAINING THE DEFENDANTS FROM
FURTHER ACTS IN PURSUANCE OF THE CONSPIRACY.  INSOFAR AS THE PRAYER FOR
DAMAGES WAS CONCERNED, A STIPULATION WAS ENTERED THAT THE ONLY DAMAGES
SUFFERED BY THE INDIVIDUAL TRUCK OPERATORS WAS THE LOSS OF BUSINESS
THAT RESULTED FROM THE VETO OF THE "FAIR TRUCK BILL" BY THE GOVERNOR OF
PENNSYLVANIA, AND ACCORDINGLY THE CLAIM FOR DAMAGES WAS LIMITED TO AN
AMOUNT BASED UPON THE LOSS OF PROFITS AS A RESULT OF THIS VETO PLUS THE
EXPENSES INCURRED BY THE TRUCKERS' TRADE ASSOCIATION FOR THE PURPOSE OF
COMBATTING THE RAILROADS' PUBLICITY CAMPAIGN.  THE PRAYER FOR
INJUNCTIVE RELIEF WAS MUCH BROADER, HOWEVER, ASKING THAT THE DEFENDANTS
BE RESTRAINED FROM DISSEMINATING ANY DISPARAGING INFORMATION ABOUT THE
TRUCKERS WITHOUT DISCLOSING RAILROAD PARTICIPATION, FROM ATTEMPTING TO
EXERT ANY PRESSURE UPON THE LEGISLATURE OR GOVERNOR OF PENNSYLVANIA
THROUGH THE MEDIUM OF FRONT ORGANIZATIONS, FROM PAYING ANY PRIVATE OR
PUBLIC ORGANIZATIONS TO PROPAGATE THE ARGUMENTS OF THE RAILROADS
AGAINST THE TRUCKERS OR THEIR BUSINESS, AND FROM DOING "ANY OTHER ACT
OR THING TO FURTHER  ...  THE OBJECTS AND PURPOSES" OF THE CONSPIRACY. 

IN THEIR ANSWER TO THIS COMPLAINT, THE RAILROADS ADMITTED THAT THEY
HAD CONDUCTED A PUBLICITY CAMPAIGN DESIGNED TO INFLUENCE THE PASSAGE OF
STATE LAWS RELATING TO TRUCK WEIGHT LIMITS AND TAX RATES ON HEAVY
TRUCKS, AND TO ENCOURAGE A MORE RIGID ENFORCEMENT OF STATE LAWS
PENALIZING TRUCKS FOR OVERWEIGHT LOADS AND OTHER TRAFFIC VIOLATIONS,
BUT THEY DENIED THAT THEIR CAMPAIGN WAS MOTIVATED EITHER BY A DESIRE TO
DESTROY THE TRUCKING BUSINESS AS A COMPETITOR OR TO INTERFERE WITH THE
RELATIONSHIPS BETWEEN THE TRUCKERS AND THEIR CUSTOMERS.  RATHER, THEY
INSISTED, THE CAMPAIGN WAS CONDUCTED IN FURTHERANCE OF THEIR RIGHTS "TO
INFORM THE PUBLIC AND THE LEGISLATURES OF THE SEVERAL STATES OF THE
TRUTH WITH REGARD TO THE ENORMOUS DAMAGE DONE TO THE ROADS BY THE
OPERATORS OF HEAVY AND ESPECIALLY OF OVERWEIGHT TRUCKS, WITH REGARD TO
THEIR REPEATED AND DELIBERATE VIOLATIONS OF THE LAW LIMITING THE WEIGHT
AND SPEED OF BIG TRUCKS, WITH REGARD TO THEIR FAILURE TO PAY THEIR FAIR
SHARE OF THE COST OF CONSTRUCTING, MAINTAINING AND REPAIRING THE ROADS,
AND WITH REGARD TO THE DRIVING HAZARDS THEY CREATE  ...  ."  SUCH A
CAMPAIGN, THE DEFENDANTS MAINTAINED, DID NOT CONSTITUTE A VIOLATION OF
THE SHERMAN ACT, PRESUMABLY BECAUSE THAT ACT COULD NOT PROPERLY BE
INTERPRETED TO APPLY EITHER TO RESTRAINTS OF TRADE OR MONOPOLIZATIONS
THAT RESULT FROM THE PASSAGE OR ENFORCEMENT OF LAWS OR TO EFFORTS OF
INDIVIDUALS TO BRING ABOUT THE PASSAGE OR ENFORCEMENT OF LAWS.  (FN6) 

SUBSEQUENTLY, DEFENDANTS BROADENED THE SCOPE OF THE LITIGATION BY
FILING A COUNTERCLAIM IN WHICH THEY CHARGED THAT THE TRUCKERS HAD
THEMSELVES VIOLATED SECS. 1 AND 2 OF THE SHERMAN ACT BY CONSPIRING TO
DESTROY THE RAILROADS' COMPETITION IN THE LONG-DISTANCE FREIGHT
BUSINESS AND TO MONOPOLIZE THAT BUSINESS FOR HEAVY TRUCKS.  THE MEANS
OF THE CONSPIRACY ALLEGED IN THE COUNTERCLAIM WERE MUCH THE SAME AS
THOSE WITH WHICH THE TRUCKERS HAD CHARGED THE RAILROADS IN THE ORIGINAL
COMPLAINT, INCLUDING ALLEGATIONS OF THE CONDUCT OF A MALICIOUS
PUBLICITY CAMPAIGN DESIGNED TO DESTROY THE RAILROADS' BUSINESS BY LAW,
TO CREATE AN ATMOSPHERE HOSTILE TO THE RAILROADS AMONG THE GENERAL
PUBLIC, AND TO INTERFERE WITH RELATIONSHIPS EXISTING BETWEEN THE
RAILROADS AND THEIR CUSTOMERS.  THE PRAYER FOR RELIEF OF THE
COUNTERCLAIM, LIKE THAT OF THE TRUCKERS' ORIGINAL COMPLAINT, WAS FOR
TREBLE DAMAGES AND AN INJUNCTION RESTRAINING CONTINUANCE OF THE
ALLEGEDLY UNLAWFUL PRACTICES.  IN THEIR REPLY TO THIS COUNTERCLAIM, THE
TRUCKERS DENIED EACH OF THE ALLEGATIONS THAT CHARGED A VIOLATION OF THE
SHERMAN ACT AND, IN ADDITION, INTERPOSED A NUMBER OF AFFIRMATIVE
DEFENSES, NONE OF WHICH ARE RELEVANT HERE. 

IN THIS POSTURE, THE CASE WENT TO TRIAL.  AFTER HEARINGS, THE TRIAL
COURT ENTERED A JUDGMENT, BASED UPON EXTENSIVE FINDINGS OF FACT AND
CONCLUSIONS OF LAW, THAT THE RAILROADS' PUBLICITY CAMPAIGN HAD VIOLATED
THE SHERMAN ACT WHILE THAT OF THE TRUCKERS HAD NOT.  (FN7)  IN REACHING
THIS CONCLUSION, THE TRIAL COURT EXPRESSLY DISCLAIMED ANY PURPOSE TO
CONDEMN AS ILLEGAL MERE EFFORTS ON THE PART OF THE RAILROADS TO
INFLUENCE THE PASSAGE OF NEW LEGISLATION OR THE ENFORCEMENT OF EXISTING
LAW.  INSTEAD, IT RESTED ITS JUDGMENT UPON FINDINGS, FIRST, THAT THE
RAILROADS' PUBLICITY CAMPAIGN, INSOFAR AS IT WAS ACTUALLY DIRECTED AT
LAWMAKING AND LAW ENFORCEMENT AUTHORITIES, WAS MALICIOUS AND FRAUDULENT
- MALICIOUS IN THAT ITS ONLY PURPOSE WAS TO DESTROY THE TRUCKERS AS
COMPETITORS, AND FRAUDULENT IN THAT IT WAS PREDICATED UPON THE
DECEIVING OF THOSE AUTHORITIES THROUGH THE USE OF THE THIRD-PARTY
TECHNIQUE; (FN8) AND, SECONDLY, THAT THE RAILROADS' CAMPAIGN ALSO HAD
AS AN IMPORTANT, IF NOT OVERRIDING, PURPOSE THE DESTRUCTION OF THE
TRUCKERS' GOODWILL, AMONG BOTH THE GENERAL PUBLIC AND THE TRUCKERS'
EXISTING CUSTOMERS, AND THUS INJURED THE TRUCKERS IN WAYS UNRELATED TO
THE PASSAGE OR ENFORCEMENT OF LAW.  IN LINE WITH ITS THEORY THAT
RESTRAINTS OF TRADE AND MONOPOLIZATIONS RESULTING FROM VALID LAWS ARE
NOT ACTIONABLE UNDER THE SHERMAN ACT, HOWEVER, THE TRIAL COURT AWARDED
ONLY NOMINAL DAMAGES TO THE INDIVIDUAL TRUCKERS, HOLDING THAT NO
DAMAGES WERE RECOVERABLE FOR LOSS OF BUSINESS DUE TO THE VETO OF THE
PENNSYLVANIA "FAIR TRUCK BILL."  THE JUDGMENT DID, HOWEVER, AWARD
SUBSTANTIAL DAMAGES TO THE TRUCKERS' TRADE ASSOCIATION AS WELL AS THE
BROAD INJUNCTION ASKED FOR IN THE COMPLAINT.  (FN9) 

THE CONCLUSION THAT THE TRUCKERS' PUBLICITY CAMPAIGN HAD NOT VIOLATED
THE SHERMAN ACT WAS REACHED DESPITE FINDINGS THAT THE TRUCKERS ALSO HAD
ENGAGED IN A PUBLICITY CAMPAIGN DESIGNED TO INFLUENCE LEGISLATION, AS
CHARGED IN THE COUNTERCLAIM, AND DESPITE FINDINGS THAT THE TRUCKERS HAD
UTILIZED THE THIRD-PARTY TECHNIQUE IN THIS CAMPAIGN.  RESTING LARGELY
UPON THE FACT THAT THE EFFORTS OF THE TRUCKERS WERE DIRECTED, AT LEAST
FOR THE MOST PART, (FN10) AT TRYING TO GET LEGISLATION PASSED THAT WAS
BENEFICIAL TO THEM RATHER THAN HARMFUL TO THE RAILROADS, THE TRIAL
COURT FOUND THAT THE TRUCKERS' CAMPAIGN WAS PURELY DEFENSIVE IN PURPOSE
AND CONCLUDED THAT THE TRUCKERS' CAMPAIGN DIFFERED FROM THAT OF THE
RAILROADS IN THAT THE TRUCKERS WERE NOT TRYING TO DESTROY A
COMPETITOR.  ACCORDINGLY, IT HELD THAT THE TRUCKERS' CAMPAIGN, THOUGH
TECHNICALLY IN RESTRAINT OF TRADE, WAS WELL WITHIN THE RULE OF REASON
WHICH GOVERNS THE INTERPRETATION OF SECS. 1 AND 2 OF THE SHERMAN ACT
AND CONSEQUENTLY DISMISSED THE COUNTERCLAIM. 

THE RAILROADS APPEALED FROM THIS JUDGMENT, BOTH AS TO THE CONCLUSION
THAT THEY HAD VIOLATED THE SHERMAN ACT AS CHARGED IN THE ORIGINAL
COMPLAINT AS TO THE CONCLUSION THAT THE TRUCKERS HAD NOT VIOLATED THE
ACT AS CHARGED IN THE COUNTERCLAIM.  THE COURT OF APPEALS FOR THE THIRD
CIRCUIT, ONE JUDGE DISSENTING IN PART, UPHELD THE JUDGMENT OF THE
DISTRICT COURT IN EVERY RESPECT, STATING THAT THE FINDINGS AMPLY
SUPPORT THE JUDGMENT AND THAT THERE WAS SUFFICIENT EVIDENCE TO SUPPORT
ALL OF THE FINDINGS.  (FN11)  THIS WAS FOLLOWED BY A PETITION FOR
CERTIORARI FILED ON BEHALF OF THE RAILROADS AND BYOIR LIMITED TO THE
QUESTION OF THE CORRECTNESS OF THE JUDGMENT INSOFAR AS IT HELD THAT
THEY HAD VIOLATED THE SHERMAN ACT.  BECAUSE THE CASE PRESENTS A NEW AND
UNUSUAL APPLICATION OF THE SHERMAN ACT AND INVOLVES SEVERE RESTRICTIONS
UPON THE RIGHTS OF THESE RAILROADS AND OTHERS TO SEEK THE PASSAGE OR
DEFEAT OF LEGISLATION WHEN DEEMED DESIRABLE, WE GRANTED THAT PETITION. 
(FN12) 

WE ACCEPT, AS THE STARTING POINT FOR OUR CONSIDERATION OF THE CASE,
THE SAME BASIC CONSTRUCTION OF THE SHERMAN ACT ADOPTED BY THE COURTS
BELOW - THAT NO VIOLATION OF THE ACT CAN BE PREDICATED UPON MERE
ATTEMPTS TO INFLUENCE THE PASSAGE OR ENFORCEMENT OF LAWS.  IT HAS BEEN
RECOGNIZED, AT LEAST SINCE THE LANDMARK DECISION OF THIS COURT IN
STANDARD OIL CO. V. UNITED STATES, (FN13) THAT THE SHERMAN ACT FORBIDS
ONLY THOSE TRADE RESTRAINTS AND MONOPOLIZATIONS THAT ARE CREATED, OR
ATTEMPTED, BY THE ACTS OF "INDIVIDUALS OR COMBINATIONS OF INDIVIDUALS
OR CORPORATIONS."  (FN14)  ACCORDINGLY, IT HAS BEEN HELD THAT WHERE A
RESTRAINT UPON TRADE OR MONOPOLIZATION IS THE RESULT OF VALID
GOVERNMENTAL ACTION, AS OPPOSED TO PRIVATE ACTION, NO VIOLATION OF THE
ACT CAN BE MADE OUT.  (FN15) THESE DECISIONS REST UPON THE FACT THAT
UNDER OUR FORM OF GOVERNMENT THE QUESTION WHETHER A LAW OF THAT KIND
SHOULD PASS, OR IF PASSED BE ENFORCED, IS THE RESPONSIBILITY OF THE
APPROPRIATE LEGISLATIVE OR EXECUTIVE BRANCH OF GOVERNMENT SO LONG AS
THE LAW ITSELF DOES NOT VIOLATE SOME PROVISION OF THE CONSTITUTION. 

WE THINK IT EQUALLY CLEAR THAT THE SHERMAN ACT DOES NOT PROHIBIT TWO
OR MORE PERSONS FROM ASSOCIATING TOGETHER IN AN ATTEMPT TO PERSUADE THE
LEGISLATURE OR THE EXECUTIVE TO TAKE PARTICULAR ACTION WITH RESPECT TO
A LAW THAT WOULD PRODUCE A RESTRAINT OR A MONOPOLY.  ALTHOUGH SUCH
ASSOCIATIONS COULD PERHAPS, THROUGH A PROCESS OF EXPANSIVE
CONSTRUCTION, BE BROUGHT WITHIN THE GENERAL PROSCRIPTION OF
"COMBINATIONS  ...  IN RESTRAINT OF TRADE," THEY BEAR VERY LITTLE IF
ANY RESEMBLANCE TO THE COMBINATIONS NORMALLY HELD VIOLATIVE OF THE
SHERMAN ACT, COMBINATIONS ORDINARILY CHARACTERIZED BY AN EXPRESS OR
IMPLIED AGREEMENT OR UNDERSTANDING THAT THE PARTICIPANTS WILL JOINTLY
GIVE UP THEIR TRADE FREEDOM, OR HELP ONE ANOTHER TO TAKE AWAY THE TRADE
FREEDOM OF OTHERS THROUGH THE USE OF SUCH DEVICES AS PRICE-FIXING
AGREEMENTS, BOYCOTTS, MARKET-DIVISION AGREEMENTS, AND OTHER SIMILAR
ARRANGEMENTS.  (FN16)  THIS ESSENTIAL DISSIMILARITY BETWEEN AN
AGREEMENT JOINTLY TO SEEK LEGISLATION OR LAW ENFORCEMENT AND THE
AGREEMENTS TRADITIONALLY CONDEMNED BY SEC. 1 OF THE ACT, EVEN IF NOT
ITSELF CONCLUSIVE ON THE QUESTION OF THE APPLICABILITY OF THE ACT, DOES
CONSTITUTE A WARNING AGAINST TREATING THE DEFENDANTS' CONDUCT AS THOUGH
IT AMOUNTED TO A COMMON-LAW TRADE RESTRAINT.  AND WE DO THINK THAT THE
QUESTION IS CONCLUSIVELY SETTLED, AGAINST THE APPLICATION OF THE ACT,
WHEN THIS FACTOR OF ESSENTIAL DISSIMILARITY IS CONSIDERED ALONG WITH
THE OTHER DIFFICULTIES THAT WOULD BE PRESENTED BY A HOLDING THAT THE
SHERMAN ACT FORBIDS ASSOCIATIONS FOR THE PURPOSE OF INFLUENCING THE
PASSAGE OR ENFORCEMENT OF LAWS.    IN THE FIRST PLACE, SUCH A HOLDING
WOULD SUBSTANTIALLY IMPAIR THE POWER OF GOVERNMENT TO TAKE ACTIONS
THROUGH ITS LEGISLATURE AND EXECUTIVE THAT OPERATE TO RESTRAIN TRADE. 
IN A REPRESENTATIVE DEMOCRACY SUCH AS THIS, THESE BRANCHES OF
GOVERNMENT ACT ON BEHALF OF THE PEOPLE AND, TO A VERY LARGE EXTENT, THE
WHOLE CONCEPT OF REPRESENTATION DEPENDS UPON THE ABILITY OF THE PEOPLE
TO MAKE THEIR WISHES KNOWN TO THEIR REPRESENTATIVES.  TO HOLD THAT THE
GOVERNMENT RETAINS THE POWER TO ACT IN THIS REPRESENTATIVE CAPACITY AND
YET HOLD, AT THE SAME TIME, THAT THE PEOPLE CANNOT FREELY INFORM THE
GOVERNMENT OF THEIR WISHES WOULD IMPUTE TO THE SHERMAN ACT A PURPOSE TO
REGULATE, NOT BUSINESS ACTIVITY, BUT POLITICAL ACTIVITY, A PURPOSE
WHICH WOULD HAVE NO BASIS WHATEVER IN THE LEGISLATIVE HISTORY OF THAT
ACT.  (FN17)  SECONDLY, AND OF AT LEAST EQUAL SIGNIFICANCE, SUCH A
CONSTRUCTION OF THE SHERMAN ACT WOULD RAISE IMPORTANT CONSTITUTIONAL
QUESTIONS.  THE RIGHT OF PETITION IS ONE OF THE FREEDOMS PROTECTED BY
THE BILL OF RIGHTS, AND WE CANNOT, OF COURSE, LIGHTLY IMPUTE TO
CONGRESS AN INTENT TO INVADE THESE FREEDOMS.  INDEED, SUCH AN
IMPUTATION WOULD BE PARTICULARLY UNJUSTIFIED IN THIS CASE IN VIEW OF
ALL THE COUNTERVAILING CONSIDERATIONS ENUMERATED ABOVE.  FOR THESE
REASONS, WE THINK IT CLEAR THAT THE SHERMAN ACT DOES NOT APPLY TO THE
ACTIVITIES OF THE RAILROADS AT LEAST INSOFAR AS THOSE ACTIVITIES
COMPRISED MERE SOLICITATION OF GOVERNMENTAL ACTION WITH RESPECT TO THE
PASSAGE AND ENFORCEMENT OF LAWS.  WE ARE THUS CALLED UPON TO CONSIDER
WHETHER THE COURTS BELOW WERE CORRECT IN HOLDING THAT, NOTWITHSTANDING
THIS PRINCIPLE, THE ACT WAS VIOLATED HERE BECAUSE OF THE PRESENCE IN
THE RAILROADS' PUBLICITY CAMPAIGN OF ADDITIONAL FACTORS SUFFICIENT TO
TAKE THE CASE OUT OF THE AREA IN WHICH THE PRINCIPLE IS CONTROLLING. 

THE FIRST SUCH FACTOR RELIED UPON WAS THE FACT, ESTABLISHED BY THE
FINDING OF THE DISTRICT COURT, THAT THE RAILROADS' SOLE PURPOSE IN
SEEKING TO INFLUENCE THE PASSAGE AND ENFORCEMENT OF LAWS WAS TO DESTROY
THE TRUCKERS AS COMPETITORS FOR THE LONG-DISTANCE FREIGHT BUSINESS. 
BUT WE DO NOT SEE HOW THIS FACT, EVEN IF ADEQUATELY SUPPORTED IN THE
RECORD, (FN18) COULD TRANSFORM CONDUCT OTHERWISE LAWFUL INTO A
VIOLATION OF THE SHERMAN ACT.  ALL OF THE CONSIDERATIONS THAT HAVE LED
US TO THE CONCLUSION THAT THE ACT DOES NOT APPLY TO MERE GROUP
SOLICITATION OF GOVERNMENTAL ACTION ARE EQUALLY APPLICABLE IN SPITE OF
THE ADDITION OF THIS FACTOR.  THE RIGHT OF THE PEOPLE TO INFORM THEIR
REPRESENTATIVES IN GOVERNMENT OF THEIR DESIRES WITH RESPECT TO THE
PASSAGE OR ENFORCEMENT OF LAWS CANNOT PROPERLY BE MADE TO DEPEND UPON
THEIR INTENT IN DOING SO.  IT IS NEITHER UNUSUAL NOR ILLEGAL FOR PEOPLE
TO SEEK ACTION ON LAWS IN THE HOPE THAT THEY MAY BRING ABOUT AN
ADVANTAGE TO THEMSELVES AND A DISADVANTAGE TO THEIR COMPETITORS.  THIS
COURT HAS EXPRESSLY RECOGNIZED THIS FACT IN ITS OPINION IN UNITED
STATES V. ROCK ROYAL CO-OP., WHERE IT WAS SAID:  "IF ULTERIOR MOTIVES
OF CORPORATE AGGRANDIZEMENT STIMULATED THEIR ACTIVITIES, THEIR EFFORTS
WERE NOT THEREBY RENDERED UNLAWFUL.  IF THE ACT AND ORDER ARE OTHERWISE
VALID, THE FACT THAT THEIR EFFECT WOULD BE TO GIVE COOPERATIVES A
MONOPOLY OF THE MARKET WOULD NOT VIOLATE THE SHERMAN ACT  ...  ." 
(FN19)  INDEED, IT IS QUITE PROBABLY PEOPLE WITH JUST SUCH A HOPE OF
PERSONAL ADVANTAGE WHO PROVIDE MUCH OF THE INFORMATION UPON WHICH
GOVERNMENTS MUST ACT.  A CONSTRUCTION OF THE SHERMAN ACT THAT WOULD
DISQUALIFY PEOPLE FROM TAKING A PUBLIC POSITION ON MATTERS IN WHICH
THEY ARE FINANCIALLY INTERESTED WOULD THUS DEPRIVE THE GOVERNMENT OF A
VALUABLE SOURCE OF INFORMATION AND, AT THE SAME TIME, DEPRIVE THE
PEOPLE OF THEIR RIGHT TO PETITION IN THE VERY INSTANCES IN WHICH THAT
RIGHT MAY BE OF THE MOST IMPORTANCE TO THEM.  WE REJECT SUCH A
CONSTRUCTION OF THE ACT AND HOLD THAT, AT LEAST INSOFAR AS THE
RAILROADS' CAMPAIGN WAS DIRECTED TOWARD OBTAINING GOVERNMENTAL ACTION,
ITS LEGALITY WAS NOT AT ALL AFFECTED BY ANY ANTICOMPETITIVE PURPOSE IT
MAY HAVE HAD. 

THE SECOND FACTOR RELIED UPON BY THE COURTS BELOW TO JUSTIFY THE
APPLICATION OF THE SHERMAN ACT TO THE RAILROADS' PUBLICITY CAMPAIGN WAS
THE USE IN THE CAMPAIGN OF THE SO-CALLED THIRD-PARTY TECHNIQUE.  THE
THEORY UNDER WHICH THIS FACTOR WAS RELATED TO THE PROSCRIPTIONS OF THE
SHERMAN ACT, THOUGH NOT ENTIRELY CLEAR FROM ANY OF THE OPINIONS BELOW,
WAS APPARENTLY THAT IT INVOLVED UNETHICAL BUSINESS CONDUCT ON THE PART
OF THE RAILROADS.  AS POINTED OUT ABOVE, THE THIRD-PARTY TECHNIQUE,
WHICH WAS APTLY CHARACTERIZED BY THE DISTRICT COURT AS INVOLVING
"DECEPTION OF THE PUBLIC, MANUFACTURE OF BOGUS SOURCES OF REFERENCE,
AND DISTORTION OF PUBLIC SOURCES OF INFORMATION," DEPENDS UPON GIVING
PROPAGANDA ACTUALLY CIRCULATED BY A PARTY IN INTEREST THE APPEARANCE OF
BEING SPONTANEOUS DECLARATIONS OF INDEPENDENT GROUPS.  WE CAN CERTAINLY
AGREE WITH THE COURTS BELOW THAT THIS TECHNIQUE, THOUGH IN WIDESPREAD
USE AMONG PRACTITIONERS OF THE ART OF PUBLIC RELATIONS, (FN20) IS ONE
WHICH FALLS FAR SHORT OF THE ETHICAL STANDARDS GENERALLY APPROVED IN
THIS COUNTRY.  IT DOES NOT FOLLOW, HOWEVER, THAT THE USE OF THE
TECHNIQUE IN A PUBLICITY CAMPAIGN DESIGNED TO INFLUENCE GOVERNMENTAL
ACTION CONSTITUTES A VIOLATION OF THE SHERMAN ACT.  INSOFAR AS THAT ACT
SETS UP A CODE OF ETHICS AT ALL, IT IS A CODE THAT CONDEMNS TRADE
RESTRAINTS, NOT POLITICAL ACTIVITY, AND, AS WE HAVE ALREADY POINTED
OUT, A PUBLICITY CAMPAIGN TO INFLUENCE GOVERNMENTAL ACTION FALLS
CLEARLY INTO THE CATEGORY OF POLITICAL ACTIVITY.  THE PROSCRIPTIONS OF
THE ACT, TAILORED AS THEY ARE FOR THE BUSINESS WORLD, ARE NOT AT ALL
APPROPRIATE FOR APPLICATION IN THE POLITICAL ARENA.  CONGRESS HAS
TRADITIONALLY EXERCISED EXTREME CAUTION IN LEGISLATING WITH RESPECT TO
PROBLEMS RELATING TO THE CONDUCT OF POLITICAL ACTIVITIES, A CAUTION
WHICH HAS BEEN REFLECTED IN THE DECISIONS OF THIS COURT INTERPRETING
SUCH LEGISLATION.  (FN21)  ALL OF THIS CAUTION WOULD GO FOR NAUGHT IF
WE PERMITTED AN EXTENSION OF THE SHERMAN ACT TO REGULATE ACTIVITIES OF
THAT NATURE SIMPLY BECAUSE THOSE ACTIVITIES HAVE A COMMERCIAL IMPACT
AND INVOLVE CONDUCT THAT CAN BE TERMED UNETHICAL. 

MOREOVER, WE THINK THE COURTS BELOW THEMSELVES RECOGNIZED THIS FACT
TO SOME EXTENT FOR THEIR DISPOSITION OF THE CASE IS INCONSISTENT WITH
THE POSITION THAT THE USE OF THE THIRD-PARTY TECHNIQUE ALONE COULD
CONSTITUTE A VIOLATION OF THE SHERMAN ACT.  THIS MUCH IS APPARENT FROM
THE FACT THAT THE RAILROADS' COUNTERCLAIM AGAINST THE TRUCKERS WAS NOT
ALLOWED.  SINCE IT IS UNDISPUTED THAT THE TRUCKERS WERE AS GUILTY AS
THE RAILROADS OF THE USE OF THE TECHNIQUE, (FN22) THIS FACTOR COULD NOT
HAVE BEEN IN ANY SENSE CONTROLLING OF THE HOLDING AGAINST THE
RAILROADS.  RATHER, IT APPEARS TO HAVE BEEN RELIED UPON PRIMARILY AS AN
INDICATION OF THE VICIOUS NATURE OF THE CAMPAIGN AGAINST THE TRUCKERS. 
BUT WHATEVER ITS PURPOSE, WE HAVE COME TO THE CONCLUSION THAT THE
RELIANCE OF THE LOWER COURTS UPON THIS FACTOR WAS MISPLACED AND THE
RAILROADS' USE OF THE THIRD-PARTY TECHNIQUE WAS, SO FAR AS THE SHERMAN
ACT IS CONCERNED, LEGALLY IRRELEVANT. 

IN ADDITION TO THE FOREGOING FACTORS, BOTH OF WHICH RELATE TO THE
INTENT AND METHODS OF THE RAILROADS IN SEEKING GOVERNMENTAL ACTION, THE
COURTS BELOW RESTED THEIR HOLDING THAT THE SHERMAN ACT HAD BEEN
VIOLATED UPON A FINDING THAT THE PURPOSE OF THE RAILROADS WAS "MORE
THAN MERELY AN ATTEMPT TO OBTAIN LEGISLATION.  IT WAS THE PURPOSE AND
INTENT  ...  TO HURT THE TRUCKERS IN EVERY WAY POSSIBLE EVEN THOUGH
THEY SECURED NO LEGISLATION."  SPECIFICALLY, THE DISTRICT COURT FOUND
THAT THE PURPOSE OF THE RAILROADS WAS TO DESTROY THE GOODWILL OF THE
TRUCKERS AMONG THE PUBLIC GENERALLY AND AMONG THE TRUCKERS' CUSTOMERS
PARTICULARLY, IN THE HOPE THAT BY DOING SO THE OVER-ALL COMPETITIVE
POSITION OF THE TRUCKERS WOULD BE WEAKENED, AND THAT THE RAILROADS WERE
SUCCESSFUL IN THESE EFFORTS TO THE EXTENT THAT SUCH INJURY WAS ACTUALLY
INFLICTED.  THE APPARENT EFFECT OF THESE FINDINGS IS TO TAKE THIS CASE
OUT OF THE CATEGORY OF THOSE THAT INVOLVE RESTRAINTS THROUGH
GOVERNMENTAL ACTION AND THUS RENDER INAPPLICABLE THE PRINCIPLES
ANNOUNCED ABOVE.  BUT THIS EFFECT IS ONLY APPARENT AND CANNOT STAND
UNDER CLOSE SCRUTINY.  THERE ARE NO SPECIFIC FINDINGS THAT THE
RAILROADS ATTEMPTED DIRECTLY TO PERSUADE ANYONE NOT TO DEAL WITH THE
TRUCKERS.  MOREOVER, ALL OF THE EVIDENCE IN THE RECORD, BOTH ORAL AND
DOCUMENTARY, DEALS WITH THE RAILROADS' EFFORTS TO INFLUENCE THE PASSAGE
AND ENFORCEMENT OF LAWS.  CIRCULARS, SPEECHES, NEWSPAPER ARTICLES,
EDITORIALS, MAGAZINE ARTICLES, MEMORANDA AND ALL OTHER DOCUMENTS
DISCUSS IN ONE WAY OR ANOTHER THE RAILROADS' CHARGES THAT HEAVY TRUCKS
INJURE THE ROADS, VIOLATE THE LAWS AND CREATE TRAFFIC HAZARDS, AND URGE
THAT TRUCKERS SHOULD BE FORCED TO PAY A FAIR SHARE OF THE COSTS OF
REBUILDING THE ROADS, THAT THEY SHOULD BE COMPELLED TO OBEY THE LAWS,
AND THAT LIMITS SHOULD BE PLACED UPON THE WEIGHT OF THE LOADS THEY ARE
PERMITTED TO CARRY.  IN THE LIGHT OF THIS, THE FINDINGS OF THE DISTRICT
COURT THAT THE RAILROADS' CAMPAIGN WAS INTENDED TO AND DID IN FACT
INJURE THE TRUCKERS IN THEIR RELATIONSHIPS WITH THE PUBLIC AND WITH
THEIR CUSTOMERS CAN MEAN NO MORE THAN THAT THE TRUCKERS SUSTAINED SOME
DIRECT INJURY AS AN INCIDENTAL EFFECT OF THE RAILROADS' CAMPAIGN TO
INFLUENCE GOVERNMENTAL ACTION AND THAT THE RAILROADS WERE HOPEFUL THAT
THIS MIGHT HAPPEN.  (FN23)  THUS, THE ISSUE PRESENTED BY THE LOWER
COURTS' CONCLUSION OF A VIOLATION OF THE SHERMAN ACT ON THE BASIS OF
THIS INJURY IS NO DIFFERENT THAN THE ISSUE PRESENTED BY THE FACTORS
ALREADY DISCUSSED.  IT IS INEVITABLE, WHENEVER AN ATTEMPT IS MADE TO
INFLUENCE LEGISLATION BY A CAMPAIGN OF PUBLICITY, THAT AN INCIDENTAL
EFFECT OF THAT CAMPAIGN MAY BE THE INFLICTION OF SOME DIRECT INJURY
UPON THE INTERESTS OF THE PARTY AGAINST WHOM THE CAMPAIGN IS DIRECTED. 
AND IT SEEMS EQUALLY INEVITABLE THAT THOSE CONDUCTING THE CAMPAIGN
WOULD BE AWARE OF, AND POSSIBLY EVEN PLEASED BY, THE PROSPECT OF SUCH
INJURY.  TO HOLD THAT THE KNOWING INFLICTION OF SUCH INJURY RENDERS THE
CAMPAIGN ITSELF ILLEGAL WOULD THUS BE TANTAMOUNT TO OUTLAWING ALL SUCH
CAMPAIGNS.   WE HAVE ALREADY DISCUSSED THE REASONS WHICH HAVE LED US TO
THE CONCLUSION THAT THIS HAS NOT BEEN DONE BY ANYTHING IN THE SHERMAN
ACT. 

THERE MAY BE SITUATIONS IN WHICH A PUBLICITY CAMPAIGN, OSTENSIBLY
DIRECTED TOWARD INFLUENCING GOVERNMENTAL ACTION, IS A MERE SHAM TO
COVER WHAT IS ACTUALLY NOTHING MORE THAN AN ATTEMPT TO INTERFERE
DIRECTLY WITH THE BUSINESS RELATIONSHIPS OF A COMPETITOR AND THE
APPLICATION OF THE SHERMAN ACT WOULD BE JUSTIFIED.  BUT THIS CERTAINLY
IS NOT THE CASE HERE.  NO ONE DENIES THAT THE RAILROADS WERE MAKING A
GENUINE EFFORT TO INFLUENCE LEGISLATION AND LAW ENFORCEMENT PRACTICES. 
INDEED, IF THE VERSION OF THE FACTS SET FORTH IN THE TRUCKERS'
COMPLAINT IS FULLY CREDITED, AS IT WAS BY THE COURTS BELOW, THAT EFFORT
WAS NOT ONLY GENUINE BUT ALSO HIGHLY SUCCESSFUL.  UNDER THESE
CIRCUMSTANCES, WE CONCLUDE THAT NO ATTEMPT TO INTERFERE WITH BUSINESS
RELATIONSHIPS IN A MANNER PROSCRIBED BY THE SHERMAN ACT IS INVOLVED IN
THIS CASE. 

IN REJECTING EACH OF THE GROUNDS RELIED UPON BY THE COURTS BELOW TO
JUSTIFY APPLICATION OF THE SHERMAN ACT TO THE CAMPAIGN OF THE
RAILROADS, WE HAVE REJECTED THE VERY GROUNDS UPON WHICH THOSE COURTS
RELIED TO DISTINGUISH THE CAMPAIGN CONDUCTED BY THE TRUCKERS.  IN DOING
SO, WE HAVE RESTORED WHAT APPEARS TO BE THE TRUE NATURE OF THE CASE - A
"NO-HOLDS-BARRED FIGHT" (FN24) BETWEEN TWO INDUSTRIES BOTH OF WHICH ARE
SEEKING CONTROL OF A PROFITABLE SOURCE OF INCOME.  (FN25)  INHERENT IN
SUCH FIGHTS, WHICH ARE COMMONPLACE IN THE HALLS OF LEGISLATIVE BODIES,
IS THE POSSIBILITY, AND IN MANY INSTANCES EVEN THE PROBABILITY, THAT
ONE GROUP OR THE OTHER WILL GET HURT BY THE ARGUMENTS THAT ARE MADE. 
IN THIS PARTICULAR INSTANCE EACH GROUP APPEARS TO HAVE UTILIZED ALL THE
POLITICAL POWERS IT COULD MUSTER IN AN ATTEMPT TO BRING ABOUT THE
PASSAGE OF LAWS THAT WOULD HELP IT OR INJURE THE OTHER.  BUT THE
CONTEST ITSELF APPEARS TO HAVE BEEN CONDUCTED ALONG LINES NORMALLY
ACCEPTED IN OUR POLITICAL SYSTEM, EXCEPT TO THE EXTENT THAT EACH GROUP
HAS DELIBERATELY DECEIVED THE PUBLIC AND PUBLIC OFFICIALS.  AND THAT
DECEPTION, REPREHENSIBLE AS IT IS, CAN BE OF NO CONSEQUENCE SO FAR AS
THE SHERMAN ACT IS CONCERNED.  THAT ACT WAS NOT VIOLATED BY EITHER THE
RAILROADS OR THE TRUCKERS IN THEIR RESPECTIVE CAMPAIGNS TO INFLUENCE
LEGISLATION AND LAW ENFORCEMENT.  SINCE THE RAILROADS HAVE ACQUIESCED
IN THE DISMISSAL OF THEIR COUNTERCLAIM BY NOT CHALLENGING THE COURT OF
APPEALS' AFFIRMANCE OF THAT ORDER IN THEIR PETITION FOR CERTIORARI, WE
ARE HERE CONCERNED ONLY WITH THOSE PARTS OF THE JUDGMENTS BELOW HOLDING
THE RAILROADS AND BYOIR LIABLE FOR VIOLATIONS OF THE SHERMAN ACT.  AND
IT FOLLOWS FROM WHAT WE HAVE SAID THAT THOSE PARTS OF THE JUDGMENTS
BELOW ARE WRONG.  THEY MUST BE AND ARE REVERSED. 

FN1  "EVERY CONTRACT, COMBINATION IN THE FORM OF TRUST OF 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. SEC. 1. 

FN2  "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.
SEC. 2.    FN3  FOR A DISCUSSION OF THE MECHANICS OF THIS TECHNIQUE AND
THE PURPOSES GENERALLY UNDERLYING ITS USE BY PUBLIC RELATIONS FIRMS,
SEE ROSS, THE IMAGE MERCHANTS, AT 118, 226-227 AND 266-267. 

FN4  THE "FAIR TRUCK BILL" REFERRED TO WAS INTRODUCED IN THE
PENNSYLVANIA LEGISLATURE IN MAY 1951, AS SENATE BILL 615. 

FN5  "ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY
REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR IN
ANY DISTRICT COURT OF THE UNITED STATES IN THE DISTRICT IN WHICH THE
DEFENDANT RESIDES OR IS FOUND OR HAS AN AGENT, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY, AND SHALL RECOVER THREEFOLD THE DAMAGES BY HIM
SUSTAINED, AND THE COST OF SUIT, INCLUDING A REASONABLE ATTORNEY'S
FEE."  15 U.S.C. SEC. 15. 

FN6  THE ANSWER TO THE TRUCKERS' COMPLAINT ALSO INTERPOSED A NUMBER
OF OTHER DEFENSES, INCLUDING THE CONTENTION THAT THE ACTIVITIES
COMPLAINED OF WERE CONSTITUTIONALLY PROTECTED UNDER THE FIRST AMENDMENT
AND THE CONTENTION THAT THE TRUCKERS WERE BARRED FROM PROSECUTING THIS
SUIT BY REASON OF THE FACT THAT THEY HAD THEMSELVES ENGAGED IN CONDUCT
IDENTICAL TO THAT ABOUT WHICH THEY WERE COMPLAINING WITH REGARD TO THE
RAILROADS AND WERE THUS IN PARI DELICTO.  BECAUSE OF THE VIEW WE TAKE
OF THE PROPER CONSTRUCTION OF THE SHERMAN ACT, WE FIND IT UNNECESSARY
TO CONSIDER ANY OF THESE OTHER DEFENSES. 

FN7  THE OPINION OF THE DISTRICT COURT ON THE MERITS OF THE
CONTROVERSY IS REPORTED AT 155 F. SUPP. 768.  AN ADDITIONAL OPINION
DEALING WITH THE QUESTION OF RELIEF IS REPORTED AT 166 F. SUPP. 163. 
FOR REPORTS OF EARLIER OPINIONS DEALING WITH PRELIMINARY MOTIONS, SEE
113 F. SUPP. 737, 14 F.R.D. 189, AND 19 F.R.D. 146. 

FN8  THE DISTRICT COURT DID NOT EXPRESSLY FIND THAT ANY PARTICULAR
PART OF THE RAILROADS' PUBLICITY CAMPAIGN WAS FALSE IN ITS CONTENT. 
RATHER, IT FOUND THAT THE TECHNIQUE OF THE RAILROADS WAS "TO TAKE A
DRAMATIC FRAGMENT OF TRUTH AND BY EMPHASIS AND REPETITION DISTORT IT
INTO FALSEHOOD."   155 F. SUPP., AT 814. 

FN9  IF ANYTHING, THE INJUNCTION WAS EVEN BROADER THAN HAD BEEN
REQUESTED IN THE COMPLAINT FOR IT EFFECTIVELY ENJOINED THE DEFENDANTS
FROM ANY PUBLICITY ACTIVITIES AGAINST THE TRUCKERS WHETHER OR NOT THE
THIRD-PARTY TECHNIQUE WAS USED.  SEE 166 F. SUPP., AT 172-173. 

FN10  THE TRIAL COURT DID RECOGNIZE THAT ON AT LEAST ONE OCCASION THE
TRUCKERS ATTEMPTED TO ENCOURAGE LEGISLATION THAT WOULD HAVE BEEN
DIRECTLY HARMFUL TO THE RAILROADS RATHER THAN BENEFICIAL TO
THEMSELVES.  THUS, THE COURT FOUND:  "ABOUT THE MIDDLE OF THE DECADE
(THE 1940'S) PMTA HAD A TAX MANUAL PREPARED CHARGING THAT THE RAILROADS
OF PENNSYLVANIA THEMSELVES DID NOT PAY THEIR FAIR SHARE OF TAXES AS
COMPARED WITH OTHER STATES AND MADE A WIDE DISTRIBUTION OF IT TO
LEGISLATORS, BANKS, SECURITY INVESTMENT HOUSES, ETC."  THE TRIAL COURT
FOUND, HOWEVER, THAT THIS ACTION OF THE TRUCKERS ALSO LAY WITHIN THE
RULE OF REASON BECAUSE "THE TRUCKERS HAD BEEN THE TARGET OF A STRONG
CAMPAIGN DIRECTED TO THE PUBLIC WITH THE PURPOSE OF CONVINCING THE
PUBLIC THAT TRUCKS DID NOT PAY THEIR FAIR SHARE OF TAXES," THUS MAKING
IT NECESSARY FOR THE TRUCKERS TO "BE PERMITTED TO LIKEWISE SHOW THE
PUBLIC THAT THEIR COMPETITORS, THE RAILROADS, WERE ACTUALLY GUILTY OF
THE FAULT CHARGED AGAINST THE TRUCKERS."  155 F. SUPP., AT 803. 

FN11  273 F.2D 218.  CHIEF JUDGE BIGGS DISSENTED FROM THE OPINION OF
THE MAJORITY OF THE COURT OF APPEALS INSOFAR AS IT UPHELD THE DISTRICT
COURT'S CONCLUSION THAT THE RAILROADS AND BYOIR HAD VIOLATED THE
SHERMAN ACT.  FOR SIMILAR REASONS, HE CONCURRED IN THAT PART OF THE
MAJORITY OPINION WHICH UPHELD THE CONCLUSION THAT THE TRUCKERS HAD NOT
VIOLATED THE ACT. 

FN12  362 U.S. 947. 

FN13  221 U.S. 1, AT 51-62. 

FN14  ID., AT 57. 

FN15  UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533; PARKER V.
BROWN, 317 U.S. 341. 

FN16 SEE APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 491-493. 

FN17  IN PARKER V. BROWN, SUPRA, THIS COURT WAS UNANIMOUS IN THE
CONCLUSION THAT THE LANGUAGE AND LEGISLATIVE HISTORY OF THE SHERMAN ACT
WOULD NOT WARRANT THE INVALIDATION OF A STATE REGULATORY PROGRAM AS AN
UNLAWFUL RESTRAINT UPON TRADE.  IN SO HOLDING, WE REJECTED THE
CONTENTION THAT THE PROGRAM'S VALIDITY UNDER THE SHERMAN ACT WAS
AFFECTED BY THE NATURE OF THE POLITICAL SUPPORT NECESSARY FOR ITS
IMPLEMENTATION - A CONTENTION NOT UNLIKE THAT REJECTED HERE.  THE
REASONING UNDERLYING THAT CONCLUSION WAS STATED SUCCINCTLY BY MR. CHIEF
JUSTICE STONE:  "HERE THE STATE COMMAND TO THE COMMISSION AND TO THE
PROGRAM COMMITTEE OF THE CALIFORNIA PRORATE ACT IS NOT RENDERED
UNALWFUL BY THE SHERMAN ACT SINCE, IN VIEW OF THE LATTER'S WORDS AND
HISTORY, IT MUST BE TAKEN TO BE A PROHIBITION OF INDIVIDUAL AND NOT
STATE ACTION.  IT IS THE STATE WHICH HAS CREATED THE MACHINERY FOR
ESTABLISHING THE PRORATE PROGRAM.  ALTHOUGH THE ORGANIZATION OF A
PRORATE ZONE IS PROPOSED BY PRODUCERS, AND A PRORATE PROGRAM, APPROVED
BY THE COMMISSION, MUST ALSO BE APPROVED BY REFERENDUM OF PRODUCERS, IT
IS THE STATE, ACTING THROUGH THE COMMISSION, WHICH ADOPTS THE PROGRAM
AND WHICH ENFORCES IT WITH PENAL SANCTIONS, IN THE EXECUTION OF A
GOVERNMENTAL POLICY.  THE PREREQUISITE APPROVAL OF THE PROGRAM UPON
REFERENDUM BY A PRESCRIBED NUMBER OF PRODUCERS IS NOT THE IMPOSITION BY
THEM OF THEIR WILL UPON THE MINORITY BY FORCE OF AGREEMENT OR
COMBINATION WHICH THE SHERMAN ACT PROHIBITS.  THE STATE ITSELF
EXERCISES ITS LEGISLATIVE AUTHORITY IN MAKING THE REGULATION AND IN
PRESCRIBING THE CONDITIONS OF ITS APPLICATION."  317 U.S., AT 352. 

FN18  A STUDY OF THE RECORD REVEALS THAT THE ONLY EVIDENCE OR
SUBSIDIARY FINDINGS UPON WHICH THIS CONCLUSORY FINDING COULD BE BASED
IS THE UNDISPUTED FACT THAT THE RAILROADS DID SEEK LAWS BY ARGUMENTS
AND PROPAGANDA THAT COULD HAVE HAD THE EFFECT OF DAMAGING THE
COMPETITIVE POSITION OF THE TRUCKERS.  THERE IS THUS AN ABSENCE OF
EVIDENCE OF INTENT INDEPENDENT OF THE EFFORTS THAT WERE MADE TO
INFLUENCE LEGISLATION AND LAW ENFORCEMENT.  WE NONETHELESS ACCEPT THE
FINDING OF THE DISTRICT COURT ON THE ISSUE FOR, IN OUR VIEW, THE
DISPOSITION OF THIS CASE MUST BE THE SAME REGARDLESS OF THAT FACT. 

FN19  307 U.S. 533, 560. 

FN20  THE EXTENT TO WHICH THE THIRD-PARTY TECHNIQUE IS UTILIZED IN
THE PUBLIC RELATIONS FIELD IS DEMONSTRATED BY THE FACT, FOUND BY THE
DISTRICT COURT, THAT EACH OF THE SEVERAL PUBLIC RELATIONS FIRMS
INTERVIEWED BY THE RAILROADS BEFORE THEY FINALLY DECIDED TO HIRE THE
BYOIR ORGANIZATION TO CONDUCT THEIR PUBLICITY CAMPAIGN INCLUDED THE USE
OF THIS TECHNIQUE IN ITS OUTLINE OF PROPOSED ACTIVITIES SUBMITTED FOR
CONSIDERATION BY THE RAILROADS.  SEE 155 F. SUPP., AT 778. 

FN21  SEE, E.G., UNITED STATES V. HARRISS, 347 U.S. 612.  CF. UNITED
STATES V. RUMELY, 345 U.S. 41. 

FN22 THE DISTRICT COURT EXPRESSLY RECOGNIZED THIS FACT IN ITS
OPINION:  "THE RECORD DISCLOSES THAT BOTH SIDES USED, OR WANTED TO USE,
FRONTS AND/OR THE PROPAGANDA TECHNIQUE."  155 F. SUPP., AT 816.  THIS
CONCLUSION WAS AMPLY SUPPORTED BY SPECIFIC FINDINGS.  THUS, THE COURT
FOUND:  "THE RECORD ESTABLISHES THAT THE TRUCKERS WROTE TO AND MADE
PERSONAL CONTACTS WITH LEGISLATORS IN SUPPORT OF BILLS INCREASING THE
WEIGHT OF TRUCKS; THAT THEY HAD REPRESENTATIVES OF OTHER INDUSTRIES
WRITE AND MAKE PERSONAL CONTACTS WITH LEGISLATORS IN HARRISBURG WITHOUT
DISCLOSING TRUCKER CONNECTIONS; AND THAT THEY HAD SUCH PERSONS
INTENTIONALLY REFRAIN FROM ADVISING THE LEGISLATORS AND THE SAID
OFFICIALS THAT THE LETTERS AND CONTACTS HAD BEEN SOLICITED; THAT THEY
SOLICITED FROM LEGISLATORS STATEMENTS IN SUPPORT OF THEIR POSITION AND
HAD NEWS RELEASES ISSUED THEREON."  155 F. SUPP., AT 803. 

FN23  HERE AGAIN, THE PETITIONERS HAVE LEVELED A VIGOROUS ATTACK UPON
THE TRIAL COURT'S FINDINGS.  AS A PART OF THIS ATTACK, THEY URGE THAT
THERE IS NO BASIS IN REASON FOR THE FINDING THAT SOME SHIPPERS QUIT
DOING BUSINESS WITH THE TRUCKERS AS A RESULT OF THE RAILROADS'
PUBLICITY CAMPAIGN.  THEIR CONTENTION IS THAT SINCE THE THEME OF THE
CAMPAIGN WAS THAT THE TRUCKERS HAD AN UNFAIR COMPETITIVE ADVANTAGE AND
COULD CONSEQUENTLY CHARGE UNFAIRLY LOW PRICES, THE CAMPAIGN WOULD HAVE
ENCOURAGED, RATHER THAN DISCOURAGED, SHIPPERS WHO AVAILED THEMSELVES OF
THE TRUCKERS' SERVICES.  THIS ARGUMENT HAS CONSIDERABLE APPEAL BUT, AS
BEFORE, WE FIND IT UNNECESSARY TO PASS UPON THE VALIDITY OF THESE
FINDINGS FOR WE THINK THE CONCLUSION MUST BE THE SAME WHETHER THEY ARE
ALLOWED TO STAND OR NOT. 

FN24  WE BORROW THIS PHRASE FROM THE DISSENTING OPINION BELOW OF
CHIEF JUDGE BIGGS. 

FN25  SINCE THE COMMENCEMENT OF THIS LITIGATION, A NEW BILL
INCREASING TRUCK-WEIGHT LIMITS HAS PASSED THE PENNSYLVANIA LEGISLATURE
AND HAS BECOME LAW BY VIRTUE OF THE GOVERNOR'S APPROVAL.  THUS, THE
FIGHT GOES ON.
..END :















UNITED STATES V. FRUEHAUF 365 U.S. 146 


NO. 91.  ARGUED JANUARY 11, 1961 - DECIDED FEBRUARY 20, 1961 - JUDGMENT
SET ASIDE AND CASE REMANDED. 


SEVERAL EMPLOYERS WERE INDICTED IN SUBSTANTIALLY THE LANGUAGE OF THE
STATUTE FOR VIOLATING SEC. 302 OF THE LABOR MANAGEMENT RELATIONS ACT,
1947, BY PAYING AND DELIVERING A SUM OF MONEY TO THE PRESIDENT OF A
LABOR ORGANIZATION REPRESENTING SOME OF THEIR EMPLOYEES WHO WERE
ENGAGED IN AN INDUSTRY AFFECTING COMMERCE; AND THE PRESIDENT OF THE
LABOR ORGANIZATION WAS INDICTED, SUBSTANTIALLY IN THE LANGUAGE OF THE
STATUTE, FOR HAVING RECEIVED AND ACCEPTED THE SUM OF MONEY FROM THE
EMPLOYERS.  THE DISTRICT JUDGE RULED THAT A TRIAL MEMORANDUM FILED BY
THE GOVERNMENT CONSTITUTED A JUDICIAL ADMISSION THAT THE TRANSACTION
WAS A LOAN, AND HE DISMISSED THE INDICTMENT ON THE GROUND THAT THE
STATUTE DID NOT APPLY TO A LOAN.  THE GOVERNMENT APPEALED DIRECTLY TO
THIS COURT UNDER 18 U.S.C. SEC. 3731, AND THE SOLE QUESTION PRESENTED
IN ITS JURIDICTIONAL STATEMENT WAS "WHETHER A LOAN OF MONEY COMES
WITHIN THE  ...  PROHIBITIONS" OF SEC. 302.  AFTER ARGUMENT, THE
SOLICITOR GENERAL MADE REPRESENTATIONS TO THE COURT WHICH INDICATED
THAT HE CONSIDERED THE GOVERNMENT FREE, IN THE EVENT OF REMAND, TO
PROVE UNDER THE INDICTMENT THAT THE TRANSACTION CAME WITHIN THE STATUTE
BY VIRTUE OF THE PARTICULAR FACTS, FROM WHICH IT MIGHT HAVE BEEN FOUND
THAT IT LACKED VARIOUS CHARACTERISTICS OF A BONA FIDE LOAN.  HELD:
INASMUCH AS THE RECORD BEFORE THIS COURT PRESENTS ONLY AN ABSTRACT
QUESTION, THE RULING DISMISSING THE INDICTMENT IS SET ASIDE AND THE
CASE IS REMANDED FOR TRIAL UPON THE INDICTMENT.  PP. 147-159. 

UNITED STATES V. FRUEHAUF ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON JUNE 17, 1959, AN INDICTMENT IN TWO COUNTS WAS FILED IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AGAINST
APPELLEES ROY FRUEHAUF, FRUEHAUF TRAILER CO., BURGE SEYMOUR, ASSOCIATED
TRANSPORT, INC., AND BROWN EQUIPMENT AND MANUFACTURING CO. (HEREINAFTER
REFERRED TO COLLECTIVELY AS THE FRUEHAUF-SEYMOUR GROUP) (FN1) AND
APPELLEE DAVE BECK.  THE FIRST COUNT, BASED ON SEC. 302(A) OF THE LABOR
MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 157, 29 U.S.C. SEC. 186(A),
WHICH MAKES IT UNLAWFUL "FOR ANY EMPLOYER TO PAY OR DELIVER, OR TO
AGREE TO PAY OR DELIVER, ANY MONEY OR OTHER THING OF VALUE TO ANY
REPRESENTATIVE OF ANY OF HIS EMPLOYEES WHO ARE EMPLOYED IN AN INDUSTRY
AFFECTING COMMERCE," (FN2) CHARGED THAT ON OR ABOUT JUNE 21, 1954, EACH
OF THE APPELLEES OF THE FRUEHAUF-SEYMOUR GROUP, EMPLOYERS OF EMPLOYEES
ENGAGED IN AN INDUSTRY AFFECTING COMMERCE: 

"DID UNLAWFULLY, WILFULLY AND KNOWINGLY PAY AND DELIVER AND AGREE TO
PAY AND DELIVER TO DAVE BECK, PRESIDENT, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A
REPRESENTATIVE OF THE AFORESAID EMPLOYEES, A THING OF VALUE, TO WIT,
MONEY, IN THE AMOUNT OF $200,000." 

THE SECOND COUNT, BASED ON SEC. 302(B), 61 STAT. 157, 29 U.S.C. SEC.
186(B), AND SIMILARLY COUCHED IN THE WORDS OF THE STATUTE, (FN3)
CHARGED THAT BECK HAD RECEIVED AND ACCEPTED, AND AGREED TO RECEIVE AND
ACCEPT, FROM THE APPELLEES OF THE FRUEHAUF-SEYMOUR GROUP, $200,000. 
ALL OF THE APPELLEES ENTERED PLEAS OF NOT GUILTY; AFTER VARIOUS
PRETRIAL PROCEEDINGS, DURING THE COURSE OF WHICH "TRIAL MEMORANDA" WERE
SUBMITTED BY THE GOVERNMENT AND BY SEVERAL OF THE APPELLEES, THE CASE
CAME ON FOR TRIAL.  AT THE OUTSET OF THE HEARING, THE DISTRICT JUDGE
SUGGESTED THAT IF, AS HE WAS ADVISED BY THE TRIAL MEMORANDA OF CERTAIN
AMONG THE APPELLEES, ANY OF THEM INTENDED TO MOVE FOR DISMISSAL OF THE
INDICTMENT, SUCH A MOTION SHOULD BE MADE AT THAT TIME.  COUNSEL FOR THE
APPELLEES REPLIED THAT THEY "WOULD BE IN A BETTER POSITION TO ADDRESS
OURSELVES TO THE GROUNDS FOR A DISMISSAL AFTER THE GOVERNMENT HAD MADE
AN OPENING HERE,  ...  IF ON INQUIRY IN THIS PRETRIAL, PRELIMINARY
CONFERENCE, THE GOVERNMENT CONCEDED CERTAIN POSITIONS THAT IT HAS
CONCEDED AT ARRAIGNMENT AND OTHER PLACES IN THE MINUTES."  THE DISTRICT
JUDGE THEN READ INTO THE RECORD AN EXTENDED EXCERPT FROM THE
GOVERNMENT'S TRIAL MEMORANDUM (FN4) WHICH PURPORTED TO OUTLINE THE
"FACTS WHICH SUPPORT THE CHARGE AND WHICH THE GOVERNMENT INTENDS TO
PROVE."  THESE WERE:  (A) THAT BECK ASKED ROY FRUEHAUF TO "LEND HIM
$200,000," WHICH "LOAN" WAS SUBSEQUENTLY DISCUSSED AT A MEETING OF
FRUEHAUF AND ATTORNEYS FOR BECK AND FRUEHAUF TRAILER CO.; THAT AFTER
UNSUCCESSFUL ATTEMPTS TO "PLACE THE LOAN" WITH OFFICERS OF VARIOUS
BANKS, "FRUEHAUF AND BURGE SEYMOUR FOUND IT NECESSARY TO ARRANGE THE
LOAN WITHOUT THE AID OF FINANCIAL INSTITUTIONS AND, INSTEAD, PROCESSED
IT THROUGH THE FREUHAUF TRAILER CO. (ROY FRUEHAUF, PRESIDENT),
ASSOCIATED TRANSPORT CO. (BURGE SEYMOUR, PRESIDENT), AND THE LATTER'S
WHOLLY OWNED SUBSIDIARY BROWN EQUIPMENT AND MANUFACTURING CO."  (B)
THAT "THE METHOD BY WHICH THIS OTHERWISE SIMPLE TRANSFER OF $200,000.00
FROM FRUEHAUF TO BECK WAS EFFECTED IS A FAIRLY COMPLEX ONE, APPARENTLY
CAUSED BY DIFFICULTIES ENCOUNTERED BY THE DEFENDANT EMPLOYERS IN
EFFECTUATING WHAT THEY HAVE CALLED A 'LOAN' BUT WITHOUT OFFICERS OF
THEIR CORPORATIONS LEARNING OF THE TRANSACTION."  (C) THAT "THE DETAILS
OF THIS CIRCUITOUS FINANCING OPERATION" WERE AS FOLLOWS:  INASMUCH AS
"NEITHER FRUEHAUF NOR SEYMOUR WISHED TO EFFECT THE LOAN BY USE OF
PERSONAL FUNDS," AND "NEITHER FRUEHAUF NOR SEYMOUR FELT THAT THEIR
RESPECTIVE CORPORATIONS COULD OVERTLY FINANCE THE TRANSFER OF FUNDS IN
SUCH AN AMOUNT WITHOUT EMBARRASSING THEMSELVES," IT WAS DETERMINED THAT
THE BROWN COMPANY "WOULD ACTUALLY MAKE THE TRANSFER TO BECK." 
THEREUPON, (1) ON JUNE 21, 1954, FREUHAUF TRAILER CO. "TRANSFERRED"
$175,000 BY CHECK TO BROWN IN EXCHANGE FOR BROWN'S $175,000 PROMISSORY
NOTE, PAYABLE DECEMBER 30, 1954, AND "PURPORTING TO BEAR INTEREST IN
THE AMOUNT OF 5% PER ANNUM," WHEREAS, IN FACT, "NO INTEREST WAS EVER
PAID TO, OR EVEN ANTICIPATED BY, FRUEHAUF OR HIS CORPORATION."  (2)
BROWN, ON THE SAME DATE, TRANSFERRED $200,000 TO BECK IN RETURN FOR
BECK'S PROMISSORY NOTE FOR THAT AMOUNT AT 4% PER ANNUM, PAYABLE
DECEMBER 30, 1954 - A BROWN CHECK REQUISITION FORM WHICH FALSELY LISTED
THE OBJECT OF THIS TRANSFER BEING EXPLAINED BY SEYMOUR AS INTENDED TO
CONCEAL FROM "THE PEOPLE IN ASSOCIATED  ...  THAT BECK WAS BORROWING
ASSOCIATED FUNDS."  (3) ASSOCIATED, ON THE SAME DATE, TRANSFERRED
$200,000 TO BROWN.  ONE WEEK LATER, BROWN RETURNED TO ASSOCIATED
$175,000, THE AMOUNT LENT BROWN BY FRUEHAUF.  ON DECEMBER 30, 1954,
"AFTER SEYMOUR HAD RENEGOTIATED THE LOAN WITH MANUFACTURERS TRUST CO.,"
BROWN RETURNED THE REMAINING $25,000 TO ASSOCIATED.  ("IT SHOULD BE
NOTED THAT BECK WAS SUPPOSED TO, BUT DID NOT, REPAY THE 'LOAN' TO BROWN
BY DECEMBER 30, 1954.")  (4) ON DECEMBER 27, 1954, SEYMOUR BORROWED
$200,000 AT 4% PER ANNUM FOR 90 DAYS FROM MANUFACTURERS TRUST CO.,
COLLATERALIZING THE LOAN WITH BECK'S NOTE AND OBLIGATIONS OF FRUEHAUF,
SEYMOUR AND OTHERS, INCLUDING AN ATTORNEY FOR FRUEHAUF TRAILER CO. (5)
SEYMOUR PAID $2,066.66 INTEREST TO MANUFACTURERS TRUST, AND BY CHECK
DATED MARCH 30, 1955, RETURNED THE $200,000 LOAN TO THE BANK.  (6)
"BECK PAID THE $200,000 LOAN FROM BROWN BY REMITTING TO SEYMOUR
$163,215, ON OR ABOUT APRIL 11, 1955, AND $36,785.  ON OR ABOUT JUNE
30, 1955, WHICH SEYMOUR ENDORSED TO BROWN."  (7) "ONLY $4,000 INTEREST,
APPROXIMATELY HALF OF THE INTEREST DUE, WAS ACTUALLY PAID AND THAT WAS
REMITTED IN THE FORM OF A CHECK  ...  FROM FRUEHAUF TRAILER CO.'S
ATTORNEY TO SEYMOUR." 

HAVING READ THIS PORTION OF THE GOVERNMENT'S MEMORANDUM FOR THE
PURPOSE OF MAKING KNOWN TO THE APPELLEES "THE GOVERNMENT'S POSITION, AT
LEAST ON THE MATTER OF THE LOAN," THE DISTRICT JUDGE RULED THAT "IN MY
VIEW THAT STATEMENT BY THE GOVERNMENT IS A JUDICIAL ADMISSION THAT THE
TRANSACTION WAS A LOAN.  AS A MATTER OF FACT, TO VERIFY THAT BELIEF,
THE GOVERNMENT LATER ARGUES IN ITS BRIEF THAT THE USE OF THE MONEY WAS
A THING OF VALUE.  SO AT LEAST, SO FAR AS I AM CONCERNED, THERE CAN BE
NO DISPUTE THAT THE GOVERNMENT'S POSITION IS THAT THIS WAS A LOAN, AND
WE ARE NOW RESOLVED TO THE QUESTION OF WHETHER A LOAN UNDER THESE
CIRCUMSTANCES WAS ILLEGAL UNDER THE STATUTE  ...  ." 

"ON THE BASIS OF THE DISCLOSURE BY THE COURT OF WHAT THE COURT
UNDERSTANDS TO BE A JUDICIAL ADMISSION BY THE GOVERNMENT," THE COURT
THEN ASKED, AGAIN, WHETHER APPELLEES WISHED TO BE HEARD ON A MOTION TO
DISMISS.  AT THIS POINT, GOVERNMENT COUNSEL INTERPOSED "TO COMMUNICATE
ONE THOUGHT TO THE COURT THAT MAY NOT HAVE BEEN COMMUNICATED BY MY
BRIEF."  HE STATED: 

"DESPITE THE FACT THAT THERE IS THE REPEATED USE OF THE WORD 'LOAN'
IN THE GOVERNMENT'S ADVANCE OUTLINE BEFORE THE COURT, CAUSED BY THE
FACT THAT THE GOVERNMENT'S CASE IN LARGE PART IS AS ASSERTED BY THESE
DEFENDANTS AS THE TRIAL WILL REFLECT AS IT PROCEEDS, NEVERTHELESS THE
GOVERNMENT'S POSITION ON THE LOAN, AND I HOPE TO MAKE THIS CLEAR AS THE
TRIAL PROGRESSES, IS ACTUALLY TWOFOLD. 

"A LOAN, IF YOUR HONOR PLEASE, IS SOMETHING THAT RELATES TO A STATE
OF MIND BETWEEN THE PERSON WHO IS RECEIVING THE MONEY AND THE PERSON
WHO IS GIVING THE MONEY, AND AGAIN THE REPAYMENT WHICH ACTUALLY
OCCURRED IN THIS CASE IS ONLY ONE ASPECT OF WHETHER OR NOT THE TRANSFER
OF FUNDS BETWEEN ONE PARTY OR FROM ONE PARTY TO ANOTHER IS ACTUALLY A
LOAN. 

"NOW, TO BE QUITE SPECIFIC, I WILL SIMPLY SAY THAT THE POSITION THAT
THE GOVERNMENT TAKES IS THAT THE GOVERNMENT HAS CALLLED THIS A LOAN,
AND IN REITERATING THE FACTS AS WE KNOW THEM FROM THE DEFENDANTS, THE
DEFENDANTS HAVING REPEATEDLY USED THE WORD 'LOAN,' WE SAY THAT THIS IS
NOT NECESSARILY SO, BECAUSE IN FACT ANY LOAN WHEN IT IS MADE, TO PROVE
THE FACT THAT IT WAS A LOAN, GOES THROUGH CERTAIN STAGES, AND IS
ACCOMPANIED BY CERTAIN ATTRIBUTES AND HERE THOSE ITEMS WERE NOT PRESENT
IN THIS CASE." 

AFTER ADVERTING TO THE SIZE OF THE "LOAN," THE FACT THAT NO
COLLATERAL WAS GIVEN, AND THE FACTS THAT THE "LOAN" COULD NOT BE
PROCESSED THROUGH FINANCIAL INSTITUTIONS, THAT NO INTEREST WAS PAID
BETWEEN THE CORPORATIONS ALTHOUGH THE TRANSACTION PURPORTED TO REQUIRE
ITS PAYMENT, AND THAT BECK DID NOT IN FACT PAY THE 4% INTEREST DUE
UNDER THE TERMS OF HIS NOTE TO BROWN, GOVERNMENT COUNSEL CONCLUDED:
"THAT IS OUR FIRST POSITION.  AND THE SECOND POSITION IS THAT EVEN IF
THIS IS A LOAN AS A MATTER OF LAW IT IS STILL ENCOMPASSED WITHIN THE
STATUTE."  THE DISTRICT JUDGE REPLIED: 

"I DO NOT THINK THAT ANYTHING YOU SAID DETRACTS FROM THE ARGUMENT
THAT YOU MADE IN YOUR MEMORANDUM, THAT YOU ARE GOING TO PROVE THAT THIS
WAS A LOAN, AND ON THAT BASIS I INTEND TO ENTERTAIN AN APPLICATION WITH
RESPECT TO THE DISMISSAL OF THE INDICTMENT." 

ALL OF THE APPELLEES MOVED TO DISMISS ON THE GROUND, AMONG OTHERS,
THAT THE TRANSACTION BETWEEN BECK AND THE FRUEHAUF-SEYMOUR GROUP, BEING
A "LOAN," WAS NOT WITHIN THE PROHIBITION OF THE STATUTE.  ARGUMENT ON
THE MOTION WAS HAD AND GOVERNMENT COUNSEL REITERATED HIS POSITION: 

"THE COURT:  ASSUMING THAT THIS CASE WAS TRIED AND THE COURT WAS
DISPOSED TO FRAME SPECIAL INTERROGATORIES TO THE JURY, AND ONE OF THOSE
INTERROGATORIES WAS, WAS THE TRANSACTION A LOAN, AND THE JURY BROUGHT
BACK THE ANSWER NO:  DO YOU THINK THE COURT COULD ALLOW THAT ANSWER TO
STAND ON THE BASIS OF THE FACTS AS YOU HAVE SET THEM FORTH IN YOUR
BRIEF, OR WOULDN'T THE COURT HAVE SET ASIDE THE FINDING AS BEING
CONTRARY TO THE EVIDENCE AND THE WEIGHT OF THE EVIDENCE? 

"MR. GUZZETTA:  YOUR HONOR, IN THE CONTEXT OF THE REMARKS I MADE
AFTER YOU READ IN OPEN COURT MY BRIEF, I WOULD SAY THAT THAT WOULD NOT
BE AN ERRONEOUS FINDING BY THEM. 

"THE COURT:  IN OTHER WORDS, YOUR POSITION IS THAT DESPITE THE FACTS
WHICH YOU SET FORTH THIS COULD BE HELD TO BE NOT A LOAN?  WHEN I SAY
THE FACTS YOU SET FORTH, I MEAN THE FACTS IN YOUR MEMORANDUM. 

"MR. GUZZETTA:  AS I TRIED TO INDICATE,  ...  THE GOVERNMENT'S
POSITION IS TWOFOLD.  IT IS WASN'T A LOAN, IF THE JURY DETERMINE ON THE
BASIS OF THE FACTS WHICH THEY HEAR THAT THIS WAS - THAT THE OUTER
CLOTHING, FABRICATED BY ONE HIGHLY COMPLEX INTERCORPORATE TRANSACTION,
DIDN'T MAKE THIS TRANSFER A LOAN, CLEARLY, IT WOULD COME WITHIN THE
STATUTE.  THERE WOULD BE NO PROBLEM IN MY MIND AT ALL.  SECONDLY, IF
THE JURY DECIDED THAT IT WAS A LOAN, I WOULDN'T SAY THAT THAT WOULD
PRECLUDE THEM FROM FINDING A VERDICT OF GUILTY BECAUSE  ...  A LOAN IS
ENCOMPASSED UNDER THE STATUTE." 

THE DISTRICT COURT GRANTED THE MOTIONS TO DISMISS THE INDICTMENT AS
TO ALL OF THE APPELLEES.  IT RULED: 

"I AM CONVINCED THAT THE LANGUAGE WHICH I READ INTO THE RECORD FROM
THE GOVERNMENT'S BRIEF IS A JUDICIAL ADMISSION THAT THIS TRANSACTION
WAS A LOAN.  I HAVE NO DOUBT IN MY OWN MIND AT LEAST, THAT IN A TRIAL
EITHER TO THE COURT OR THE JURY, IN A PRELIMINARY HEARING WHERE THE
DEFENDANTS HAVE NOT YET SUBJECTED THEMSELVES TO JEOPARDY, IF THE
GOVERNMENT ESTABLISHED THE FACTS WHICH IT RECOUNTED IN ITS BRIEF THAT
IT INTENDED TO PROVE, A FINDING BY A JURY TO THE CONTRARY WOULD HAVE TO
BE WET ASIDE, NOR COULD THE COURT FIND TO THE CONTRARY.  THOSE FACTS,
IN MY VIEW, NOTWITHSTANDING THE QUALIFICATIONS ATTEMPTED ORALLY, AND
DESPITE THOSE QUALIFICATIONS AND ACCEPTING THOSE QUALIFICATIONS, THOSE
FACTS, IN MY VIEW, ESTABLISHED THAT THE TRANSACTION WAS A PURE AND
SIMPLE LOAN. 

"  ...  HAVING FOUND AS I DO ON THE GOVERNMENT'S JUDICIAL ADMISSION
THAT THE TRANSACTION WAS  A LOAN, WE MUST THEN RESOLVE WHETHER THE
TRANSACTION AS A LOAN WAS VIOLATIVE OF THE STATUTE AS IT WAS AT THE
TIME OF THE TRANSACTION, AND I AM OF THE OPINION THAT IT WAS NOT." 

FROM THIS ORAL RULING THE GOVERNMENT BROUGHT THE CASE HERE BY DIRECT
APPEAL PURSUANT TO THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 3731.  THE
SOLE QUESTION PRESENTED IN ITS JURISDICTIONAL STATEMENT IS "WHETHER A
LOAN OF MONEY COMES WITHIN THE   ...  PROHIBITIONS" OF SEC. 302 OF THE
LABOR MANAGEMENT RELATIONS ACT, 1947.  (FN5)  BRIEFS AND ORAL ARGUMENT
IN THIS COURT PROCEEDED UPON THE ASSUMPTION THAT THIS QUESTION, AND
ONLY THIS QUESTION, WAS PROPERLY RAISED BY THE RECORD, AND THAT THE
QUESTION, THUS SHAPED, PRESUPPOSED THE SUBSTANTIAL REALITY AND BONA
FIDES OF THE "LOAN."  COUNSEL FOR THE GOVERNMENT, IN RESPONSE TO
QUESTIONS FROM THE BENCH, ASSERTED THAT IN LIGHT OF THE FRAMING OF THE
ISSUES ON THIS DIRECT APPEAL, THE GOVERNMENT'S TRIAL THEORY WOULD HAVE
TO BE THAT THE BECK-FRUEHAUF-SEYMOUR TRANSACTION WAS AN INCONTESTABLE,
GOODFAITH LOAN AT A FAIR RATE OF INTEREST, AND THAT SUCH OTHER
CIRCUMSTANCES OF THE TRANSACTION AS THE LACK OF COLLATERAL WOULD BE
IMMATERIAL.  HOWEVER, IN A SUBSEQUENT COMMUNICATION ADDRESSED TO THE
COURT AND OPPOSING COUNSEL BY THE SOLICITOR GENERAL, THE GOVERNMENT
TOOK THE POSITION "THAT THE COURT MAY PROPERLY TAKE ACCOUNT IN
DISPOSING OF THIS CASE OF THE SALIENT FACTS WITH RESPECT TO THE
TRANSACTION, AS DEVELOPED BY THE PROSECUTOR BEFORE THE DISTRICT JUDGE
AND AS TAKEN INTO ACCOUNT BY THE DISTRICT JUDGE IN DISMISSING THE
INDICTMENT, AND THAT THE QUESTION BEFORE THE COURT MAY BE CONSIDERED IN
THE FACTUAL CONTEXT IN WHICH IT WAS PRESENTED; THE QUESTION PRESENTED
FAIRLY COMPRISED THE TWO ISSUES OF (1) WHETHER ANY LOAN WAS COVERED BY
THIS RECORD, THE QUESTION PUT TO THE COURT FOR OUR DIRECT REVIEW UNDER
18 U.S.C.  SEC. 3731 IS LEFT UNCLEAR.  AN INDICTMENT CAST IN STATUTORY
LANGUAGE HAS BEEN DISMISSED FOR FAILURE TO CHARGE AN OFFENSE WITHIN THE
MEANING OF THE LEGISLATION WHOSE WORDS IT EMPLOYS, ON THE GROUND (AS
EXPRESSED IN THE RULING OF THE DISTRICT COURT) THAT THE GOVERNMENT'S
TRIAL MEMORANDUM CONSTITUTED A "JUDICIAL ADMISSION THAT THE TRANSACTION
WAS A LOAN."  THE PORTIONS OF THE TRIAL MEMORANDUM UPON WHICH THIS
RULING RESTS ESTABLISH, AT MOST, THAT APPROXIMATELY A YEAR AFTER THE
FRUEHAUF-SEYMOUR GROUP TRANSFERRED $200,000 TO BECK, BECK TRANSFERRED
$200,000 BACK TO THE FRUEHAUF-SEYMOUR GROUP, WITH $4,000 "INTEREST,"
"APPROXIMATELY HALF OF THE INTEREST DUE."  ON THE BASIS OF SUCH FACTS,
PUTTING ASIDE OF COURSE ALL QUESTIONS OF VARIANCE BETWEEN INDICTMENT
AND PROOF THAT MIGHT EMERGE AT A TRIAL, SEEMINGLY THE GOVERNMENT MIGHT
HAVE ATTEMPTED TO MAKE OUT VIOLATIONS OF SEC. 302 ON ANY OF A NUMBER OF
ALTERNATIVE THEORIES: (1) THAT THE "LOAN" WAS A SHAM, A MERE RUSE AND
COVERING DEVICE INTENDED TO PASS FROM FRUEHAUF AND SEYMOUR TO BECK A
GIFT OR BRIBE OF MONEY; (2) THAT IRRESPECTIVE OF INTENTION, THE
ACCEPTANCE BY THE FRUEHAUF-SEYMOUR GROUP OF $200,000 PLUS $4,000
INTEREST IN SATISFACTION OF BECK'S OBLIGATION TO REPAY THE "LOAN" WITH
TWICE THAT AMOUNT OF INTEREST CONSTITUTED A FORBIDDEN DELIVERY OF THE
UNPAID INTEREST TO BECK; (3) THAT IRRESPECTIVE OF THE TERMS OF BECK'S
NOTE, THE LOAN OF A LARGE SUM OF MONEY AT A RATE OF INTEREST
SIGNIFICANTLY LOWER THAN THE GOING COMMERCIAL RATE EFFECTED A DELIVERY
TO BECK OF THE DIFFERENCE BETWEEN THE INTEREST PAYABLE AT A COMMERCIAL
RATE AND THE INTEREST AGREED ON; (4) THAT IRRESPECTIVE OF THE INTEREST
RATE, THE TRANSACTION - BY WHICH FRUEHAUF AND SEYMOUR MADE AVAILABE A
LARGE, UNSECURED LAON WHICH BECK COULD NOT HAVE GOTTEN THROUGH NORMAL
FINANCING CHANNELS - RESULTED IN THE DELIVERY TO BECK OF A "THING OF
VALUE," NAMELY, THE BENEFIT OF HAVING THE MONEY IN HAND; (5) THAT
IRRESPECTIVE OF THE PARTICULAR INCIDENTS OF THIS TRANSACTION, ALL
LOANS, AS SUCH, VIOLATE THE STATUTE, EITHER BECAUSE THE USE OF MONEY IS
ITSELF A "THING OF VALUE" WHICH MAY NOT IN ANY CASE BE DELIVERED BY AN
EMPLOYER TO HIS EMPLOYEES' REPRESENTATIVE, EVEN IN CONSIDERATION OF THE
PAYMENT OF INTEREST, UNDER THE STATUTE, OR BECAUSE EVERY LOAN, QUA
LOAN, COMPORTS THE "DELIVERY" OF THE THING LOANED, WHICH DELIVERY
(REGARDLESS OR REPAYMENT) VIOLATES SEC. 302.  (FN6)  HOWEVER, THE
DISTRICT COURT'S RULING THAT, BY ADMISSION OF THE GOVERNMENT, THE
TRANSACTION WAS A "LOAN," APPEARS TO MEAN THAT, IN LIGHT OF ITS TRIAL
MEMORANDUM, THE GOVERNMENT IS FORCLOSED FROM PURSUING SOME, PROBABLY
MOST, OF THESE THEORIES.  WHICH AMONG THEM THE COURT THUS VIEWED AS
CLOSED REMAINS UNCERTAIN.  ON THE OTHER HAND, IN A REPRESENTATION TO
THIS COURT, THE SOLICITOR GENERAL DOES NOT LEAVE IT UNEQUIVOCALLY
CLEAR, SO AS TO PRECLUDE CONTROVERSY IN THE LOWER COURT WERE THE CASE
TO BE ALLOWED TO GO TO TRIAL, WHICH (IF NOT ALL) OF THE THEORIES HE
WOULD REGARD AS STILL OPEN.  THE ONLY ISSUE WHICH WE CAN BE SURE THAT
THE DISTRICT COURT DECIDED AS A MATTER OF CONSTRUCTION OF THE STATUTE
(AS DISTINGUISHED FROM THOS ISSUES WHICH THE DISTRICT COURT HELD COULD
NOT BE PROVED UNDER THE INDICTMENT CONSISTENTLY WITH THE GOVERNMENT'S
"JUDICIAL ADMISSION") IS THE ISSUE POSED BY THE FIFTH THEORY ABOVE -
THE ISSUED POSED, IN ITS MOST EVIDENTLY ABSTRACT FORM, BY THE QUESTION
PRESENTED HERE IN THE GOVERNMENT'S JURISDICTIONAL STATEMENT - "WHETHER
A LOAN OF MONEY," EVERY LOAN OF MONEY, AS SUCH, "COMES WITHIN THE
STATUTE'S  ...  PROHIBITIONS." 

WE DO NOT REACH THAT QUESTION ON THIS APPEAL.  FOR WE CANNOT BUT
REGARD IT - ABSTRACTED AS IT HAS BECOME, IN THE COURSE OF THESE
PROCEEDINGS, FROM THE IMMEDIATE CONSIDERATIONS WHICH SHOULD DETERMINE
THE DISPOSITION OF APPELLEES' MOTIONS TO DISMISS AN INDICTMENT
INCONTESTABLY VALID ON ITS FACE - AS OTHER THAN A REQUEST FOR AN
ADVISORY OPINION.  SUCH OPINIONS, SUCH ADVANCE EXPRESSIONS OF LEGAL
JUDGMENT UPON ISSUES WHICH REMAIN UNFOCUSED BECAUSE THEY ARE NOT
PRESSED BEFORE THE COURT WITH THAT CLEAR CONCRETENESS PROVIDED WHEN A
QUESTION EMERGES PRECISELY FRAMED AND NECESSARY FOR DECISION FROM A
CLASH OF ADVERSARY ARGUMENT EXPLORING EVERY ASPECT OF THE MULTIFACED
SITUATION EMBRACING CONFLICTING AND DEMANDING INTERESTS, WE HAVE
CONSISTENTLY REFUSED TO GIVE.  SEE PARKER V. LOS ANGELES COUNTY, 338
U.S. 327; RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549; UNITED PUBLIC
WORKERS V. MITCHELL, 330 U.S. 75; ALABAMA STATE FEDERATION OF LABOR V.
MCADORY, 325 U.S. 450; ARIZONA V. CALIFORNIA, 283 U.S. 423. 

NOR DOES THE RECORD RAISE QUESTIONS CONCERNING THE SUFFICIENCY OF THE
INDICTMENT WHICH WOULD REQUIRE, IN AN APPROPRIATE CASE, THAT THE CASE
BE SENT TO THE COURT OF APPEALS, PURSUANT TO 18 U.S.C. SEC. 3731.  FOR
THIS IS NOT A CASE IN WHICH THE DISTRICT COURT HAS CONSTRUED THE
ALLEGATIONS OF AN INDICTMENT, OR LIMITED THE SCOPE OF THE GOVERNMENT'S
PRESENTATION BY CONSTRUCTION OF A BILL OF PARTICULARS OR THE
PROSECUTOR'S OPENING STATEMENT.  IN THE PRESENT CASE WE CANNOT KNOW
WITH REFERENCE TO WHAT SUPPOSED FACTUAL CIRCUMSTANCES THE DISTRICT
COURT ATTRIBUTED TO THE GOVERNMENT THE ADMISSION THAT THE BECK-FRUEHAUF
SEYMOUR TRANSACTION CONSTITUTED A "LOAN."  WITHOUT SPELLING OUT IN
DETAIL THE DIVERSE ARGUMENTATIVE POSSIBILITIES THAT UNDERLIE THE
JUDGE'S ATTRIBUTION OF A "LOAN" AS AN UNEQUIVOCALLY DEFINED CONCEPT TO
THE GOVERNMENT, IT SUFFICES TO SAY THAT EXPERIENCE IN INSTANCES OF
SIMILAR UNCLARITY UNDER THE CRIMINAL APPEAL ACT COUNSELS THE WISDOM OF
ABSTAINING FROM REVIEWING CONSTRUCTION OF A CRIMINAL STATUTE ON SO
CLOUDY A RECORD AS IS NOW BEFORE THE COURT.  COMPARE UNITED STATES V.
COLGATE & CO., 250 U.S. 300, WITH UNITED STATES V. A. SCHRADER'S SON,
INC., 252 U.S. 85. 

THE CORE OF THE DIFFICULTY IN THE PRESENT CASE IS THAT THE RECORD
DOES NOT PRECLUDE THE GOVERNMENT FROM ATTEMPTING TO PROVE THAT THE
TRANSACTION IN QUESTION CAME WITHIN THE STATUTORY BAN BY REASON OF ANY
OR ALL POSSIBLE THEORIES.  OF COURSE, AN UNDERTAKING BY COUNSEL HERE,
HOWEVER HONORABLE ITS IMPULSE, CANNOT BIND THE GOVERNMENT IN THE
FUTURE.  AND THE DISTRICT COURT'S RULING, INSOFAR AS IT PURPORTS TO
CLOSE ANY AVENUES OPEN TO THE GOVERNMENT UNDER THE INDICTMENT - NOT IN
VIEW OF SPECIFICATIONS MADE IN A BILL OF PARTICULARS OR AN OPENING
STATMENT, BUT ON THE BASIS OF A "JUDICIAL ADMISSION" CULLED FROM A
PRETRIAL MEMORANDUM - WAS IMPERMISSIBLE AND CONSTITUTES AN INSUFFICIENT
BASIS TO JUSTIFY THE EXERCISE OF THIS COURT'S JURISDICTION ON DIRECT
APPEAL. 

WE DO NOT THINK, HOWEVER, THAT THE PURPOSE OF RULE 15 OF THIS COURT,
UNDER WHICH THE GOVERNMENT FILED THE JURISDICTIONAL STATEMENT WHICH
BROUGHT THE CASE HERE, REQUIRES US TO PENALIZE THE GOVERNMENT BY
DISMISSING THIS APPEAL, SIMPLICITER.  THE COURT HAS THE POWER,
EXPRESSLY PROVIDED IN 28 U.S.C. SEC. 2106, TO "VACATE, SET ASIDE OR
REVERSE ANY JUDGMENT, DECREE, OR ORDER OF A COURT LAWFULLY BROUGHT
BEFORE IT FOR REVIEW, AND ...  REMAND THE CAUSE AND  ...  REQUIRE SUCH
FURTHER PROCEEDINGS TO BE HAD AS MAY BE JUST UNDER THE CIRCUMSTANCES." 
THE EXERCISE OF THAT AUTHORITY IS APPROPRIATE HERE.  THE RULING
DISMISSING THE INDICTMENT IS SET ASIDE AND THE CASE IS REMANDED FOR
TRIAL UPON THIS VALID INDICTMENT.  SO ORDERED. 

FN1  IT APPEARS THAT ROY FRUEHAUF IS PRESIDENT OF FRUEHAUF TRAILER
CO., THAT BURGE SEYMOUR IS PRESIDENT OF ASSOCIATED TRANSPORT, INC., AND
THAT BROWN EQUIPMENT AND MANUFACTURING CO. IS A WHOLLY OWNED SUBSIDIARY
OF ASSOCIATED TRANSPORT, INC. 

FN2  SECTION 505 OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT
OF 1959, 73 STAT.  537, ENACTED SEPTEMBER 14, 1959, AMENDED THIS

"IT SHALL BE UNLAWFUL FOR ANY EMPLOYER OR ASSOCATION OF EMPLOYERS OR
ANY PERSON WHO ACTS AS A LABOR RELATIONS EXPERT, ADVISER, OR CONSULTANT
TO AN EMPLOYER OR WHO ACTS IN THE INTEREST OF AN EMPLOYER TO PAY, LEND,
OR DELIVER, OR AGREE TO PAY, LEND, OR DELIVER, ANY MONEY OR OTHER THING
OF VALUE: 

"(1)  TO ANY REPRESENTATIVE OF ANY OF HIS EMPLOYEES WHO ARE EMPLOYED
IN AN INDUSTRY AFFECTING COMMERCE  ...  ." 

FN3  COUNT TWO OF THE INDICTMENT CHARGED THAT "ON OR ABOUT THE 21ST
DAY OF JUNE, 1954,  ...  DAVE BECK,  ...  A REPRESENTATIVE OF EMPLOYEES
WHO WERE ENGAGED IN AN INDUSTRY AFFECTING COMMERCE  ... DID UNLAWFULLY,
WILFULLY AND KNOWINGLY RECEIVE AND ACCEPT AND AGREE TO RECEIVE AND
ACCEPT FROM THE SEVERAL APPELLEES OF THE FRUEHAUF-SEYMOUR GROUP,
EMPLOYERS OF THE AFORESAID EMPLOYEES, A THING OF VALUE, TO WIT, MONEY,
IN THE AMOUNT OF $200,000."  SECTION 302(B), AS IT WAS IN EFFECT AT THE
TIME OF THE TRANSACTION ALLEGED, PROVIDED:  "IT SHALL BE UNLAWFUL FOR
ANY REPRESENTATIVE OF ANY EMPLOYEES WHO ARE EMPLOYED IN AN INDUSTRY
AFFECTING COMMERCE TO RECEIVE OR ACCEPT, OR TO AGREE TO RECEIVE OR
ACCEPT, FROM THE EMPLOYER OF SUCH EMPLOYEES ANY MONEY OR OTHER THING OF
VALUE."  THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959,
SEC. 505, AMENDED THE SECTION TO CAUSE IT TO PARALLEL THE AMENDED
VERSION OF SEC. 302(A), NOTE 2, SUPRA. 

FN4  THE MEMORANDUM HAS NOT BEEN MADE A PART OF THE RECORD IN THIS
COURT.  AS READ INTO THE RECORD, IN PART, BY THE DISTRICT JUDGE, IT
APPEARS TO HAVE BEEN PREFIXED BY THE STATEMENT: 

"THIS MEMORANDUM IS SUBMITTED FOR THE PURPOSE OF SUPPLYING THE COURT
WITH A GENERAL OUTLINE AND ANALYSIS OF THE FACTS THE GOVERNMENT INTENDS
TO PROVE TOGETHER WITH AN EXPOSITION OF THE STATUTORY AND DECISIONAL
LAW REGARDING THE CRIME CHARGED IN THE INSTANT CASE." 

FN5  THIS STATEMENT OF THE QUESTION DIFFERS FROM THAT IN THE
GOVERNMENT'S NOTICE OF APPEAL, WHICH STATED THE ISSUE TO BE "WHETHER
THE PAYMENT OF MONEY BY AN EMPLOYER (OF EMPLOYEES IN AN INDUSTRY
AFFECTING COMMERCE) TO A REPRESENTATIVE OF HIS EMPLOYEES, INTENDING
REPAYMENT OF SAID MONEY WITH INTEREST, IS WITHIN THE PROSCRIPTIONS OF
." 

FN6  SUBSECTION (C) OF SEC. 302 EXCEPTS FIVE ENUMERATED SITUATIONS
FROM THE SECTION'S BROAD BAN ON DELIVERY OR RECEIPT OF ANY THING OF
VALUE:  E.G., SEC. 302(C)(3) PROVIDES THAT THE SECTION SHALL NOT BE
APPLICABLE "WITH RESPECT TO THE SALE OR PURCHASE OF AN ARTICLE OR
COMMODITY AT THE PREVAILING MARKET PRICE IN THE REGULAR COURSE OF
BUSINESS." 

MR. JUSTICE STEWART, DISSENTING. 

THE DISMISSAL OF THE INDICTMENT IN THIS CASE WAS PLACED SQUARELY UPON
THE DISTRICT COURT'S CONSTRUCTION OF A CRIMINAL STATUTE.  SPECIFICALLY,
THE COURT RULED THAT A LOAN OF MONEY DID NOT FALL WITHIN THE
PROHIBITION OF SEC. 302 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947
(BEFORE ITS AMENDMENT IN 1959).  IN BRINGING THE APPEAL DIRECTLY HERE,
THE GOVERNMENT ELIMINATED FROM THE CASE ANY POSSIBLE QUESTIONS OTHER
THAN THE CORRECTNESS OF THE DISTRICT COURT'S CONSTRUCTION OF THE
UNDERLYING STATUTE - TO WHICH THIS COURT'S JURISDICTION IS LIMITED
UNDER THE CRIMINAL APPEALS ACT.  18 U.S.C. SEC. 3731.  UNITED STATES V.
KEITEL, 211 U.S. 370, 397-398; UNITED STATES V. PATTEN, 226 U.S. 525,
535, 540; UNITED STATES V. COLGATE & CO., 250 U.S. 300, 301, 306;
UNITED STATES V. BORDEN CO., 308 U.S. 188, 192-194.  "IN REVIEWING A
DIRECT APPEAL FROM A DISTRICT COURT UNDER THE CRIMINAL APPEALS ACT,
SUPRA, OUR REVIEW IS LIMITED TO THE VALIDITY OR CONSTRUCTION OF THE
CONTESTED STATUTE.  FOR 'THE GOVERNMENT'S APPEAL DOES NOT OPEN THE
WHOLE CASE.'"  UNITED STATES V. PETRILLO, 332 U.S. 1, 5. 

I THINK THE ISSUE WHETHER A LOAN OF MONEY CAME WITHIN THE
PROSCRIPTIONS OF THE STATUTE IS BEFORE US NOW AND SHOULD BE DECIDED.  I
FURTHER THINK THIS IS THE ONLY ISSUE PROPERLY BEFORE US.  HOWEVER,
SINCE THE COURT THINKS OTHERWISE, I AM PERSUADED THAT AN EXPRESSION OF
MY VIEWS ON THE SUBJECT WOULD NOT BE APPROPRIATE. 
..END :



















MAYNARD V. DURHAM & SOUTHERN RAILWAY CO. 365 U.S. 160 


NO. 183.  ARGUED JANUARY 12, 1961 - DECIDED FEBRUARY 20, 1961 - 251 N.C.
783, 112 S.E.2D 249, REVERSED. 


AN EMPLOYEE SUED A RAILROAD IN A STATE COURT TO RECOVER DAMAGES UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT FOR AN INJURY SUSTAINED IN THE
COURSE OF HIS EMPLOYMENT.  AS A DEFENSE, THE RAILROAD TENDERED A
RELEASE SIGNED BY THE EMPLOYEE, AND THE COURT GRANTED A NONSUIT AFTER
ALL THE EVIDENCE WAS IN.  THERE WAS A CONFLICT IN THE EVIDENCE AS TO
WHAT HAPPENED WHEN THE RELEASE WAS SIGNED.  HELD:  THE JUDGMENT IS
REVERSED.  PP. 160-163. 

(A)  THE RULE OF DICE V. AKRON, C.&Y.R. CO., 342 U.S. 359, THAT THE
VALIDITY OF A RELEASE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IS A
FEDERAL QUESTION, APPLIES WHERE A RELEASE IS CHALLENGED AS NOT BEING
SUPPORTED BY CONSIDERATION AS WELL AS WHERE THE ATTACK IS MADE FOR
FRAUD.  P. 161. 

(B)  ON THE RECORD, THERE WAS A GENUINE ISSUE OF FACT CONCERNING THE
PRESENCE OF CONSIDERATION FOR THE RELEASE, AND THAT ISSUE SHOULD HAVE
BEEN SUBMITTED TO A JURY.  PP. 161-163. 

MAYNARD V. DURHAM & SOUTHERN RAILWAY CO. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AN EMPLOYEE OF RESPONDENT, SUED IN A NORTH CAROLINA COURT
FOR DAMAGES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SEC.
51.  AS A DEFENSE, RESPONDENT TENDERED A RELEASE SIGNED BY PETITIONER
AND MOVED FOR A NONSUIT.  THE MOTION WAS ALLOWED AFTER ALL THE EVIDENCE
WAS IN, AND THE SUPREME COURT OF NORTH CAROLINA AFFIRMED, ONE JUDGE
DISSENTING.  251 N.C. 783, 112 S.E.2D 249. 

WE SAID IN DICE V. AKRON, C.&Y.R. CO., 342 U.S. 359, 361, THAT THE
"VALIDITY OF RELEASES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT RAISES
A FEDERAL QUESTION TO BE DETERMINED BY FEDERAL RATHER THAN STATE LAW." 
WHILE THAT CASE DEALT WITH A RELEASE CHALLENGED ON THE GROUND OF FRAUD,
THE RULE IT ANNOUNCED ALSO GOVERNS RELEASES CHALLENGED FOR LACK OF
CONSIDERATION.  FOR RELEASES OBTAINED BY FRAUD OR FOR NO CONSIDERATION
COULD EQUALLY DEFEAT THE FEDERAL RIGHTS CREATED BY THIS ACT OF
CONGRESS.  IT WAS BECAUSE OF OUR DOUBTS THAT THE DECISION BELOW SQUARED
WITH THAT RULE THAT WE BROUGHT THE CASE HERE ON CERTIORARI.  363 U.S.
839. 

PETITIONER WAS INJURED AUGUST 22, 1955, AND CAME BACK TO WORK ON
SEPTEMBER 12, 1955.  ON SEPTEMBER 17 HE SIGNED THE RELEASE IN
QUESTION.  THERE IS CONFLICTING EVIDENCE AS TO WHAT HAPPENED AT THAT
TIME.  ACCORDING TO PETITIONER HE WENT INTO THE OFFICE OF MR.
MCALLISTER, GENERAL MANAGER, AND ASKED FOR HIS PAY CHECK; MR.
MCALLISTER "GAVE ME A PAPER, TOLD ME TO SIGN THAT, AND I SIGNED IT";
PETITIONER DID NOT READ THE PAPER; HE SIGNED IT "BECAUSE EVERY CHECK
THAT WE EVER GOT FROM THE RAILROAD WE HAD TO SIGN FOR IT"; HE SIGNED
THINKING HE WAS SIGNING FOR HIS PAY CHECK; HE THOUGHT THE RAILROAD OWED
HIM $144.60 FOR LABOR, THE AMOUNT HE RECEIVED; HE "NEVER RECEIVED
ANYTHING FROM THE RAILROAD AS A RESULT OF THE INJURY."  PETITIONER ALSO
TESTIFIED THAT SOME SIX MONTHS AFTER HE RECEIVED THE $144.60, HE WAS
ASKED TO SIGN A RELEASE FOR HIS INJURIES AND REFUSED.  AS TO THE PAPER
HE SIGNED ON SEPTEMBER 17, PETITIONER FURTHER TESTIFIED THAT MR.
MCALLISTER "DIDN'T MAKE ANY FALSE REPRESENTATIONS.  THE ONLY THING HE
DID DO THERE, HE JUST DIDN'T EXPLAIN THE PAPER TO ME.  HE DIDN'T MAKE
ANY DECEITFUL SUGGESTIONS TO ME.  HE DIDN'T MAKE ANY FRAUDULENT
SUGGESTIONS TO ME."  PETITIONER ALSO TESTIFIED, "THE $144.60 THAT I
RECEIVED THERE FROM MR. MCALLISTER WAS NOT FOR INJURIES.  THAT WAS MY
PAY CHECK." 

ON THE OTHER SIDE THERE WAS TESTIMONY BY A FORMER EMPLOYEE, WHO WAS
PETITIONER'S WITNESS, THAT IT WAS THE POLICY OF THE COMPANY NOT TO PAY
WAGES FOR THE TIME A PERSON WAS "OFF FROM WORK" UNLESS HE SIGNED A
RELEASE AND THAT POLICY APPLIED WHEN AN EMPLOYEE DID NOT WORK BECAUSE
OF AN INJURY.  THIS WITNESS ALSO TESTIFIED THAT IN A CONVERSATION HE
AND PETITIONER HAD WITH MR. MCALLISTER,* MCALLISTER TOLD PETITIONER HE
WOULD HAVE TO SIGN A RELEASE BEFORE HE COULD GET BACK PAY.  MOREOVER,
MR. MCALLISTER TESTIFIED THAT PETITIONER STATED "THAT HE WOULD LIKE TO
SETTLE UP WITH THE COMPANY, THAT HE WAS BROKE AND NEEDED SOME MONEY";
THAT MCALLISTER TOLD PETITIONER "THAT HE KNEW IF WE SETTLED UP WITH HIM
IT WOULD BE NECESSARY FOR HIM TO SIGN A RELEASE"; THAT PETITIONER SAID
HE WAS "WILLING TO SIGN A RELEASE" AND THAT THAT WAS "THE PURPOSE OF
HIS VISIT"; THAT HE, MCALLISTER, EXPLAINED TO PETITIONER WHAT WAS IN
THE RELEASE AND THAT IF HE SIGNED IT HE WOULD BE PAID "FOR HIS TIME
LOST"; THAT MCALLISTER DID NOT PROMISE "ANY FUTURE PAYMENTS" IF
PETITIONER SIGNED THE RELEASE "EXCEPT THAT POSSIBLY WE WOULD TAKE CARE
OF HIS DOCTOR'S BILLS IF HE HAD ANY." 

*THE WITNESS, WHO WAS CHAIRMAN OF THE LOCAL UNION AT THE TIME OF THE
ACCIDENT, COULD NOT REMEMBER WHETHER THIS MEETING TOOK PLACE BEFORE OR
AFTER SEPTEMBER 17, 1955 (THE DATE OF THE RELEASE), ALTHOUGH HE WAS
SURE IT TOOK PLACE AFTER AUGUST 22, 1955.  PETITIONER TESTIFIED THIS
MEETING TOOK PLACE AFTER SEPTEMBER 17. 

IN ADDITION PETITIONER TESTIFIED THAT WHILE HE DID NOT KNOW IT WAS
THE RAILROAD'S POLICY TO PAY AN INJURED EMPLOYEE FOR TIME LOST ONLY
UPON SIGNING A RELEASE, "THIS WASN'T THE KIND OF THING THAT I WOULD
SIGN FOR MY REGULAR PAY CHECK.  I DIDN'T KNOW WHAT IT WAS.  I JUST DID
NOT GIVE IT NO THOUGHT." 

WE FIND NO EVIDENCE SUFFICIENT FOR A JURY THAT RESPONDENT OBTAINED
THE RELEASE BY FRAUD, DURESS, OR UNDUE INFLUENCE.  WE CONCLUDE,
HOWEVER, THAT THERE WAS A JURY QUESTION AS TO WHETHER THE RELEASE WAS
GIVEN FOR A CONSIDERATION. 

WE THINK THE CORRECT RULE CONCERNING THE ADEQUACY OF CONSIDERATION
FOR A RELEASE OF CLAIMS UNDER THE ACT WAS STATED IN BURNS V. NORTHERN
PAC. R. CO., 134 F.2D 766, 770.  "IN ORDER THAT THERE MAY BE
CONSIDERATION, THERE MUST BE MUTUAL CONCESSIONS.  A RELEASE IS NOT
SUPPORTED BY SUFFICIENT CONSIDERATION UNLESS SOMETHING OF VALUE IS
RECEIVED TO WHICH THE CREDITOR HAD NO PREVIOUS RIGHT."  IF, IN OTHER
WORDS, AN EMPLOYEE RECEIVES WAGES TO WHICH HE HAD AN ABSOLUTE RIGHT,
THE FACT THAT THE AMOUNT IS CALLED CONSIDERATION FOR A RELEASE DOES NOT
MAKE THE RELEASE VALID.  SEE HOGUE V. NATIONAL AUTOMOTIVE PARTS ASSN.,
87 F. SUPP. 816, 821. 

ON THIS RECORD THERE IS A GENUINE ISSUE OF FACT CONCERNING THE
PRESENCE OF CONSIDERATION FOR THE RELEASE.  PETITIONER CLAIMED THAT
WHAT HE RECEIVED WAS HIS PAY CHECK, RIGHTFULLY OWING.  AGAINST THAT WAS
EVIDENCE THAT NO BACK WAGES WERE DUE AND THAT AN AMOUNT EQUAL TO BACK
WAGES WAS PAID FOR THE RELEASE.  IT IS NOT FOR THE JUDGES TO RESOLVE
THE CONFLICT AND TO CONCLUDE THAT ONE SIDE OR THE OTHER WAS RIGHT.  THE
ISSUE OF FACT THAT IS PRESENTED IS ONE ON WHICH FAIR-MINDED JURORS
MIGHT HONESTLY DIFFER.  CF. ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S.
500, 510.  REVERSED. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THIS CASE WAS BROUGHT HERE ON A MEAGER TYPEWRITTEN PETITION WHICH
INVOKED THE COURT'S CERTIORARI JURISDICTION ON THE CLAIM THAT THE NORTH
CAROLINA SUPREME COURT HAD DISREGARDED CONTROLLING FEDERAL STANDARDS
FOR DETERMINING THE VALIDITY OF A RELEASE FROM LIABILITY UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT.  IN REVERSING THE NORTH CAROLINA
SUPREME COURT, THIS COURT DOES NOT SUPPORT THE GROUNDS ON WHICH REVIEW
WAS URGED.  THE ORAL ARGUMENT DISPELLED SUCH A CLAIM AND REVEALED, WHAT
THE COURT'S OPINION NOW RECOGNIZES, THAT THE CONFLICT BETWEEN THE STATE
COURT AND THIS COURT TURNS ON ASSESSMENT OF THE TRIAL TESTIMONY.  THIS
COURT HAS REPEATEDLY ANNOUNCED THAT THE WRIT OF CERTIORARI IS NOT TO BE
EMPLOYED TO PASS ON MATTERS OF EVIDENCE AND OUR RULE 19 FORMALLY BARS
SUCH AN OBVIOUS MISUSE OF OUR DISCRETIONARY JURISDICTION.  AGAIN AND
AGAIN WE DENY PETITIONS FOR CERTIORARI WHICH MERELY RAISE DISPUTED
ISSUES OF FACT.  INSTEAD OF MAKING CASES ARISING UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT AN EXCEPTIONAL CLASS, CONGRESS IN 1916
EXPLICITLY WITHDREW FEDERAL EMPLOYERS' LIABILITY CASES FROM THE COURT'S
OBLIGATORY JURISDICTION.  39 STAT. 727.  FOR REASONS SET FORTH AT
LENGTH IN MY DISSENTING OPINION IN FERGUSON V. MOORE-MCCORMACK LINES,
INC., 352 U.S. 521, 524, I WOULD DISMISS THIS WRIT AS IMPROVIDENTLY
GRANTED.  DOING SO AFTER ARGUMENT HAS BEEN HAD WOULD SERVE TO
DISCOURAGE PETITIONS BROUGHT SOLELY TO REVIEW MATTERS OF EVIDENCE; TO
ADJUDICATE THE CASE ON THE MERITS BY TAKING ONE VIEW OF THE EVIDENCE AS
AGAINST ANOTHER ONLY ENCOURAGES PETITIONS THAT OUGHT NOT TO BE FILED
HERE.  SEE LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, INC., 261 U.S.
387. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE HARLAN JOINS,
DISSENTING. 

PETITIONER WAS EMPLOYED BY RESPONDENT AS A "SECTION" WORKER AT APEX,
NORTH CAROLINA.  HE NORMALLY WORKED FIVE EIGHT-HOUR DAYS PER WEEK, AND
WAS COMPENSATED FOR HOURS WORKED AT A RATE AGGREGATING ABOUT $290 PER
MONTH.  THE RECORD IS NOT ENTIRELY CLEAR ON THE POINT, BUT IT WOULD
APPEAR THAT HE HAD RECEIVED THE WAGES HE HAD EARNED THROUGH FRIDAY,
AUGUST 19, 1955.  ON MONDAY, AUGUST 22, HE WAS INJURED IN THE COURSE OF
HIS WORK, BUT HE WORKED THE REMAINDER OF THE DAY AND ALSO THE NEXT,
TUESDAY, AUGUST 23.  HE WAS THEN OFF WORK FOR A TOTAL OF 19 DAYS, 13 OF
WHICH WERE WORKING DAYS, RETURNING TO WORK ON MONDAY, SEPTEMBER 12, AND
WORKING THROUGH FRIDAY, SEPTEMBER 16, OF THAT WEEK.  ON SATURDAY,
SEPTEMBER 17, HE SIGNED A "RELEASE" OF ALL CLAIMS AGAINST HIS EMPLOYER
ON ACCOUNT OF HIS INJURY AND DELIVERED THE SAME TO HIS EMPLOYER IN
EXCHANGE FOR ITS CHECK TO HIS ORDER IN THE AMOUNT OF $144.60 - WHICH,
IT APPEARS, IS THE EXACT AMOUNT HE WOULD HAVE EARNED HAD HE WORKED EACH
WORKING DAY THROUGH THE PERIOD HE WAS OFF. 

AT THE CONCLUSION OF THE TRIAL OF HIS ACTION, BROUGHT UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT AGAINST HIS EMPLOYER, THE TRIAL COURT
REJECTED HIS CONTENTIONS THAT THE "RELEASE" WAS (1) OBTAINED BY FRAUD
AND (2) WAS NOT SUPPORTED BY ANY CONSIDERATION, HELD THE "RELEASE" TO
BE A VALID BAR OF HIS CLAIM FOR DAMAGES, AND DISMISSED THE SUIT.  ON
APPEAL, THE SUPREME COURT OF NORTH CAROLINA AFFIRMED, 251 N.C. 783, 112
S.E.2D 249, AND WE GRANTED CERTIORARI.  363 U.S. 839. 

THE ONLY QUESTION HERE IS WHETHER THAT JUDGMENT WAS JUSTIFIED BY THE
RECORD.  WITH ALL RESPECT, I THINK IT WAS. 

I AGREE WITH THE COURT THAT THE EVIDENCE WHOLLY FAILED TO SUSTAIN THE
CLAIM OF FRAUD.  IN FACT, AS THE COURT'S OPINION SHOWS, PETITIONER'S
TESTIMONY AFFIRMATIVELY DISCLOSES THAT THERE WAS NONE.  HE TESTIFIED
THAT RESPONDENT'S OFFICER, WITH WHOM HE DEALT IN RESPECT OF THE
"RELEASE," "DIDN'T MAKE ME ANY FALSE REPRESENTATIONS  ...  .  HE DIDN'T
MAKE ANY DECEITFUL SUGGESTIONS TO ME.  HE DIDN'T MAKE ANY FRAUDULENT
SUGGESTIONS TO ME." 

BUT I AM EQUALLY UNABLE TO FIND IN THE RECORD ANY EVIDENCE TO SHOW
THAT THE "RELEASE" WAS GIVEN WITHOUT CONSIDERATION.  PETITIONER ADMITS
THAT HE WAS REQUIRED TO SIGN THE "RELEASE" BEFORE RESPONDENT WOULD PAY
HIM THE $144.60 WHICH HE RECEIVED IN EXCHANGE FOR IT.  OF COURSE, I
AGREE WITH THE COURT'S STATEMENT OF THE LAW THAT "'A RELEASE IS NOT
SUPPORTED BY SUFFICIENT CONSIDERATION UNLESS SOMETHING OF VALUE IS
RECEIVED TO WHICH THE (RELEASOR) HAD NO PREVIOUS RIGHT.'  IF, IN OTHER
WORDS, AN EMPLOYEE RECEIVES WAGES TO WHICH HE HAD AN ABSOLUTE RIGHT,
THE FACT THAT THE AMOUNT IS CALLED CONSIDERATION FOR A RELEASE DOES NOT
MAKE THE RELEASE VALID." 

HERE, HOWEVER, THERE IS NO EVIDENCE THAT THE $144.60 WHICH PETITIONER
RECEIVED IN EXCHANGE FOR THE RELEASE HAD BEEN EARNED BY, OR WAS DUE,
HIM.  IT IS TRUE THAT THAT AMOUNT WAS EXACTLY THE SUM HE WOULD HAVE
EARNED IN THE RELEVANT PERIOD HAD HE WORKED.  BUT HE DID NOT WORK IN
THAT PERIOD.  HE ADMITS THAT HE WAS OFF WORK FROM WEDNESDAY MORNING,
AUGUST 23, TO MONDAY MORNING, SEPTEMBER 12 - A TOTAL OF 19 DAYS, 13 OF
WHICH WERE WORKING DAYS.  OF COURSE, HE COULD HAVE HAD A CONTRACT WITH
HIS EMPLOYER OBLIGATING IT TO PAY HIM NORMAL WAGES WHILE DISABLED BY
INJURY OR SICKNESS.  BUT HE HAS NOT SHOWN THAT ANY SUCH CONTRACT
EXISTED. 

AS I READ AND UNDERSTAND THEM, THESE UNDISPUTED FACTS FAIL TO SHOW
THAT THE AMOUNT PAID BY RESPONDENT TO PETITIONER FOR THE RELEASE WAS
HIS OWN MONEY - MONEY THAT HE HAD EARNED AS WAGES, OR THAT WAS
OTHERWISE OWING TO HIM.  AS I SEE IT, THEN, PETITIONER HAS WHOLLY
FAILED TO PRODUCE ANY EVIDENCE TO SHOW THAT THE RELEASE WAS MADE
WITHOUT CONSIDERATION. 

WHETHER PETITIONER MAY HAVE HAD A SOLID BASIS TO RESCIND THE RELEASE
UPON THE GROUND OF MUTUAL MISTAKE OF FACT, I.E., THAT HE WAS MORE
SERIOUSLY INJURED THAN EITHER HE OR RESPONDENT BELIEVED AT THE TIME THE
RELEASE WAS MADE, OF WHICH THERE IS CONSIDERABLE INDICATION IN THE
RECORD - WOULD PRESENT A QUESTION OF MORE SUBSTANCE.  BUT THAT QUESTION
IS NOT BEFORE US, AS PETITIONER HAS NOT PROCEEDED ON THAT THEORY. 

ON THE RECORD AS IT STANDS, I THINK THE NORTH CAROLINA COURTS WERE
RIGHT, AND THAT THEIR JUDGMENT SHOULD BE AFFIRMED. 
..END :





















MONROE V. PAPE 365 U.S. 167 


NO. 39.  ARGUED NOVEMBER 8, 1960 - DECIDED FEBRUARY 20, 1961 - 272 F.2D
365, REVERSED. 


UNDER R.S. SEC. 1979, DERIVED FROM SEC. 1 OF THE "KU KLUX ACT" OF
APRIL 20, 1871, PETITIONERS (SIX NEGRO CHILDREN AND THEIR PARENTS)
BROUGHT AN ACTION IN A FEDERAL DISTRICT COURT AGAINST THE CITY OF
CHICAGO AND 13 OF ITS POLICE OFFICERS FOR DAMAGES FOR VIOLATION OF
THEIR RIGHTS UNDER THE FOURTEENTH AMENDMENT.  THEY ALLEGED THAT, ACTING
"UNDER COLOR OF THE STATUTES, ORDINANCES, REGULATIONS, CUSTOMS AND
USAGES" OF ILLINOIS AND THE CITY OF CHICAGO BUT WITHOUT ANY WARRANT FOR
SEARCH OR ARREST, THE POLICE OFFICERS BROKE INTO PETITIONERS' HOME IN
THE EARLY MORNING, ROUTED THEM FROM BED, MADE THEM STAND NAKED IN THE
LIVING ROOM, AND RANSACKED EVERY ROOM, EMPTYING DRAWERS AND RIPPING
MATTRESS COVERS; THAT THE FATHER WAS TAKEN TO THE POLICE STATION AND
DETAINED ON "OPEN" CHARGES FOR TEN HOURS WHILE HE WAS INTERROGATED
ABOUT A TWO-DAY OLD MURDER; THAT HE WAS NOT TAKEN BEFORE A MAGISTRATE,
THOUGH ONE WAS ACCESSIBLE; THAT HE WAS NOT PERMITTED TO CALL HIS FAMILY
OR ATTORNEY; AND THAT HE WAS SUBSEQUENTLY RELEASED WITHOUT CRIMINAL
CHARGES BEING PREFERRED AGAINST HIM.  HELD:  THE COMPLAINT STATED A
CAUSE OF ACTION AGAINST THE POLICE OFFICERS UNDER SEC. 1979; BUT THE
CITY OF CHICAGO WAS NOT LIABLE UNDER THAT SECTION.  PP. 168-192. 

1.  ALLEGATION OF FACTS CONSTITUTING A DEPRIVATION UNDER COLOR OF
STATE AUTHORITY OF THE GUARANTY AGAINST UNREASONABLE SEARCHES AND
SEIZURES, CONTAINED IN THE FOURTH AMENDMENT AND MADE APPLICABLE TO THE
STATES BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, SATISFIES
TO THAT EXTENT THE REQUIREMENT OF SEC. 1979.  PP. 170-171. 

2.  IN ENACTING SEC. 1979, CONGRESS INTENDED TO GIVE A REMEDY TO
PARTIES DEPRIVED OF CONSTITUTIONAL RIGHTS, PRIVILEGES AND IMMUNITIES BY
AN OFFICIAL'S ABUSE OF HIS POSITION.  PP. 171-187. 

(A)  THE STATUTORY WORDS "UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY" DO NOT EXCLUDE
ACTS OF AN OFFICIAL OR POLICEMAN WHO CAN SHOW NO AUTHORITY UNDER STATE
LAW, CUSTOM OR USAGE TO DO WHAT HE DID, OR EVEN WHO VIOLATED THE STATE
CONSTITUTION AND LAWS.  PP. 172-187. 

(B)  ONE OF THE PURPOSES OF THIS LEGISLATION WAS TO AFFORD A FEDERAL
RIGHT IN FEDERAL COURTS BECAUSE, BY REASON OF PREJUDICE, PASSION,
NEGLECT, INTOLERANCE, OR OTHERWISE, STATE LAWS MIGHT NOT BE ENFORCED
AND THE CLAIMS OF CITIZENS TO THE ENJOYMENT OF RIGHTS, PRIVILEGES AND
IMMUNITIES GUARANTEED BY THE FOURTEENTH AMENDMENT MIGHT BE DENIED BY
STATE AGENCIES.  PP. 174-180. 

(C)  THE FEDERAL REMEDY IS SUPPLEMENTARY TO THE STATE REMEDY, AND THE
STATE REMEDY NEED NOT BE SOUGHT AND REFUSED BEFORE THE FEDERAL REMEDY
IS INVOKED.  P. 183. 

(D)  MISUSE OF POWER POSSESSED BY VIRTUE OF STATE LAW AND MADE
POSSIBLE ONLY BECAUSE THE WRONGDOER IS CLOTHED WITH THE AUTHORITY OF
STATE LAW IS ACTION TAKEN "UNDER COLOR OF" STATE LAW WITHIN THE MEANING
OF SEC. 1979.  UNITED STATES V. CLASSIC, 313 U.S. 299; SCREWS V. UNITED
STATES, 325 U.S. 91.  PP. 183-187. 

3.  SINCE SEC. 1979 DOES NOT CONTAIN THE WORD "WILFULLY," AS DOES 18
U.S.C. SEC. 242, AND SEC. 1979 IMPOSES CIVIL LIABILITY RATHER THAN
CRIMINAL SANCTIONS, ACTIONS UNDER SEC. 1979 CAN DISPENSE WITH THE
REQUIREMENT OF SHOWING A "SPECIFIC INTENT TO DEPRIVE A PERSON OF A
FEDERAL RIGHT."  P. 187. 

4.  THE CITY OF CHICAGO IS NOT LIABLE UNDER SEC. 1979, BECAUSE
CONGRESS DID NOT INTEND TO BRING MUNICIPAL CORPORATIONS WITHIN THE
AMBIT OF THAT SECTION.  PP. 187-192. 

MONROE ET AL. V. PAPE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS IMPORTANT QUESTIONS CONCERNING THE CONSTRUCTION OF
R.S. SEC. 1979, 42 U.S.C. SEC. 1983, WHICH READS AS FOLLOWS: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICTION THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS." 

THE COMPLAINT ALLEGES THAT 13 CHICAGO POLICE OFFICERS BROKE INTO
PETITIONERS' HOME IN THE EARLY MORNING, ROUTED THEM FROM BED, MADE THEM
STAND NAKED IN THE LIVING ROOM, AND RANSACKED EVERY ROOM, EMPTYING
DRAWERS AND RIPPING MATTRESS COVERS.  IT FURTHER ALLEGES THAT MR.
MONROE WAS THEN TAKEN TO THE POLICE STATION AND DETAINED ON "OPEN"
CHARGES FOR 10 HOURS, WHILE HE WAS INTERROGATED ABOUT A TWO-DAY-OLD
MURDER, THAT HE WAS NOT TAKEN BEFORE A MAGISTRATE, THOUGH ONE WAS
ACCESSIBLE, THAT HE WAS NOT PERMITTED TO CALL HIS FAMILY OR ATTORNEY,
THAT HE WAS SUBSEQUENTLY RELEASED WITHOUT CRIMINAL CHARGES BEING
PREFERRED AGAINST HIM.  IT IS ALLEGED THAT THE OFFICERS HAD NO SEARCH
WARRANT AND NO ARREST WARRANT AND THAT THEY ACTED "UNDER COLOR OF THE
STATUTES, ORDINANCES, REGULATIONS, CUSTOMS AND USAGES" OF ILLINOIS AND
OF THE CITY OF CHICAGO.  FEDERAL JURISDICTION WAS ASSERTED UNDER R.S.
SEC. 1979, WHICH WE HAVE SET OUT ABOVE, AND 28 U.S.C. SEC. 1343 (FN1)
AND 28 U.S.C. SEC. 1331.  (FN2) 

THE CITY OF CHICAGO MOVED TO DISMISS THE COMPLAINT ON THE GROUND THAT
IT IS NOT LIABLE UNDER THE CIVIL RIGHTS ACTS NOR FOR ACTS COMMITTED IN
PERFORMANCE OF ITS GOVERNMENTAL FUNCTIONS.  ALL DEFENDANTS MOVED TO
DISMISS, ALLEGING THAT THE COMPLAINT ALLEGED NO CAUSE OF ACTION UNDER
THOSE ACTS OR UNDER THE FEDERAL CONSTITUTION.  THE DISTRICT COURT
DISMISSED THE COMPLAINT.  THE COURT OF APPEALS AFFIRMED, 272 F.2D 365,
RELYING ON ITS EARLIER DECISION, STIFT V. LYNCH, 267 F.2D 237.  THE
CASE IS HERE ON A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF A
SEEMING CONFLICT OF THAT RULING WITH OUR PRIOR CASES.  362 U.S. 926. 

                  I. 

PETITIONERS CLAIM THAT THE INVASION OF THEIR HOME AND THE SUBSEQUENT
SEARCH WITHOUT A WARRANT AND THE ARREST AND DETENTION OF MR. MONROE
WITHOUT A WARRANT AND WITHOUT ARRAIGNMENT CONSTITUTED A DEPRIVATION OF
THEIR "RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION"
WITHIN THE MEANING OF R.S. SEC. 1979.  IT HAS BEEN SAID THAT WHEN 18
U.S.C.  SEC. 241 MADE CRIMINAL A CONSPIRACY "TO INJURE, OPPRESS,
THREATEN, OR INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT
OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION," IT
EMBRACED ONLY RIGHTS THAT AN INDIVIDUAL HAS BY REASON OF HIS RELATION
TO THE CENTRAL GOVERNMENT, NOT TO STATE GOVERNMENTS.  UNITED STATES V.
WILLIAMS, 341 U.S. 70.  CF. UNITED STATES V. CRUIKSHANK, 92 U.S. 542;
EX PARTE YARBROUGH, 110 U.S. 651; GUINN V. UNITED STATES, 238 U.S.
347.  BUT THE HISTORY OF THE SECTION OF THE CIVIL RIGHTS ACT PRESENTLY
INVOLVED DOES NOT PERMIT SUCH A NARROW INTERPRETATION. 

APRIL 20, 1871.  17 STAT.  13.  IT WAS ONE OF THE MEANS WHEREBY
CONGRESS EXERCISED THE POWER VESTED IN IT BY SEC. 5 OF THE FOURTEENTH
AMENDMENT TO ENFORCE THE PROVISIONS OF THAT AMENDMENT.  (FN3)  SENATOR
EDMUNDS, CHAIRMAN OF THE SENATE COMMITTEE ON THE JUDICIARY, SAID
CONCERNING THIS SECTION: 

"THE FIRST SECTION IS ONE THAT I BELIEVE NOBODY OBJECTS TO, AS
DEFINING THE RIGHTS SECURED BY THE CONSTITUTION OF THE UNITED STATES
WHEN THEY ARE ASSAILED BY ANY STATE LAW OR UNDER COLOR OF ANY STATE
LAW, AND IT IS MERELY CARRYING OUT THE PRINCIPLES OF THE CIVIL RIGHTS
BILL, (FN4) WHICH HAS SINCE BECOME A PART OF THE CONSTITUTION," (FN5)
VIZ., THE FOURTEENTH AMENDMENT. 

ITS PURPOSE IS PLAIN FROM THE TITLE OF THE LEGISLATION, "AN ACT TO
ENFORCE THE PROVISIONS OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES, AND FOR OTHER PURPOSES."  17 STAT. 13. 
ALLEGATION OF FACTS CONSTITUTING A DEPRIVATION UNDER COLOR OF STATE
AUTHORITY OF A RIGHT GUARANTEED BY THE FOURTEENTH AMENDMENT SATISFIES
TO THAT EXTENT THE REQUIREMENT OF R.S. SEC. 1979.  SEE DOUGLAS V.
JEANNETTE, 319 U.S. 157, 161-162.  SO FAR PETITIONERS ARE ON SOLID
GROUND.  FOR THE GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES
CONTAINED IN THE FOURTH AMENDMENT HAS BEEN MADE APPLICABLE TO THE
STATES BY REASON OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  WOLF V. COLORADO, 338 U.S. 25; ELKINS V. UNITED STATES, 364
U.S. 206, 213. 

  II. 

THERE CAN BE NO DOUBT AT LEAST SINCE EX PARTE VIRGINIA, 100 U.S. 339,
346-347, THAT CONGRESS HAS THE POWER TO ENFORCE PROVISIONS OF THE
FOURTEENTH AMENDMENT AGAINST THOSE WHO CARRY A BADGE OF AUTHORITY OF A
STATE AND REPRESENT IT IN SOME CAPACITY, WHETHER THEY ACT IN ACCORDANCE
WITH THEIR AUTHORITY OR MISUSE IT.  SEE HOME TEL. & TEL. CO. V. LOS
ANGELES, 227 U.S. 278, 287-296.  THE QUESTION WITH WHICH WE NOW DEAL IS
THE NARROWER ONE OF WHETHER CONGRESS, IN ENACTING SEC. 1979, MEANT TO
GIVE A REMEDY TO PARTIES DEPRIVED OF CONSTITUTIONAL RIGHTS, PRIVILEGES
AND IMMUNITIES BY AN OFFICIAL'S ABUSE OF HIS POSITION.  CF. WILLIAMS V.
UNITED STATES, 341 U.S. 97; SCREWS V. UNITED STATES, 325 U.S. 91;
UNITED STATES V. CLASSIC, 313 U.S. 299.  WE CONCLUDE THAT IT DID SO
INTEND. 

IT IS ARGUED THAT "UNDER COLOR OF" ENUMERATED STATE AUTHORITY
EXCLUDES ACTS OF AN OFFICIAL OR POLICEMAN WHO CAN SHOW NO AUTHORITY
UNDER STATE LAW, STATE CUSTOM, OR STATE USAGE TO DO WHAT HE DID.   IN
THIS CASE IT IS SAID THAT THESE POLICEMEN, IN BREAKING INTO
PETITIONERS' APARTMENT, VIOLATED THE CONSTITUTION (FN6) AND LAWS OF
ILLINOIS.  IT IS POINTED OUT THAT UNDER ILLINOIS LAW A SIMPLE REMEDY IS
OFFERED FOR THAT VIOLATION AND THAT, SO FAR AS IT APPEARS, THE COURTS
OF ILLINOIS ARE AVAILABLE TO GIVE PETITIONERS THAT FULL REDRESS WHICH
THE COMMON LAW AFFORDS FOR VIOLENCE DONE TO A PERSON; AND IT IS
EARNESTLY ARGUED THAT NO "STATUTE, ORDINANCE, REGULATION, CUSTOM OR
USAGE" OF ILLINOIS BARS THAT REDRESS. 

THE KU KLUX ACT GREW OUT OF A MESSAGE SENT TO CONGRESS BY PRESIDENT
GRANT ON MARCH 23, 1871, READING: 

"A CONDITION OF AFFAIRS NOW EXISTS IN SOME STATES OF THE UNION
RENDERING LIFE AND PROPERTY INSECURE AND THE CARRYING OF THE MAILS AND
THE COLLECTION OF THE REVENUE DANGEROUS.  THE PROOF THAT SUCH A
CONDITION OF AFFAIRS EXISTS IN SOME LOCALITIES IS NOW BEFORE THE
SENATE.  THAT THE POWER TO CORRECT THESE EVILS IS BEYOND THE CONTROL OF
STATE AUTHORITIES I DO NOT DOUBT; THAT THE POWER OF THE EXECUTIVE OF
THE UNITED STATES, ACTING WITHIN THE LIMITS OF EXISTING LAWS, IS
SUFFICIENT FOR PRESENT EMERGENCIES IS NOT CLEAR.  THEREFORE, I URGENTLY
RECOMMEND SUCH LEGISLATION AS IN THE JUDGMENT OF CONGRESS SHALL
EFFECTUALLY SECURE LIFE, LIBERTY, AND PROPERTY, AND THE ENFORCEMENT OF
LAW IN ALL PARTS OF THE UNITED STATES  ... ."  (FN7) 

THE LEGISLATION - IN PARTICULAR THE SECTION WITH WHICH WE ARE NOW
CONCERNED - HAD SEVERAL PURPOSES.  THERE ARE THREADS OF MANY THOUGHTS
RUNNING THROUGH THE DEBATES.  ONE WHO READS THEM IN THEIR ENTIRETY SEES
THAT THE PRESENT SECTION HAD THREE MAIN AIMS. 

FIRST, IT MIGHT, OF COURSE, OVERRIDE CERTAIN KINDS OF STATE LAWS. 
MR. SLOSS OF ALABAMA, IN OPPOSITION, SPOKE OF THAT OBJECT AND
EMPHASIZED THAT IT WAS IRRELEVANT BECAUSE THERE WERE NO SUCH LAWS:
(FN8) 

"THE FIRST SECTION OF THIS BILL PROHIBITS ANY INVIDIOUS LEGISLATION
BY STATES AGAINST THE RIGHTS OR PRIVILEGES OF CITIZENS OF THE UNITED
STATES.  THE OBJECT OF THIS SECTION IS NOT VERY CLEAR, AS IT IS NOT
PRETENDED BY ITS ADVOCATES ON THIS FLOOR THAT ANY STATE HAS PASSED ANY
LAWS ENDANGERING THE RIGHTS OR PRIVILEGES OF THE COLORED PEOPLE." 

SECOND, IT PROVIDED A REMEDY WHERE STATE LAW WAS INADEQUATE.  THAT
ASPECT OF THE LEGISLATION WAS SUMMED UP AS FOLLOWS BY SENATOR SHERMAN
OF OHIO: 

"  ...  IT IS SAID THE REASON IS THAT ANY OFFENSE MAY BE COMMITTED
UPON A NEGRO BY A WHITE MAN, AND A NEGRO CANNOT TESTIFY IN ANY CASE
AGAINST A WHITE MAN, SO THAT THE ONLY WAY BY WHICH ANY CONVICTION CAN
BE HAD IN KENTUCKY IN THOSE CASES IS IN THE UNITED STATES COURTS,
BECAUSE THE UNITED STATES COURTS ENFORCE THE UNITED STATES LAWS BY
WHICH NEGROES MAY TESTIFY."  (FN9) 

BUT THE PURPOSES WERE MUCH BROADER.  THE THIRD AIM WAS TO PROVIDE A
FEDERAL REMEDY WHERE THE STATE REMEDY, THOUGH ADEQUATE IN THEORY, WAS
NOT AVAILABLE IN PRACTICE.  THE OPPOSITION TO THE MEASURE COMPLAINED
THAT "IT OVERRIDES THE RESERVED POWERS OF THE STATES," (FN10) JUST AS
THEY ARGUED THAT THE SECOND SECTION OF THE BILL "ABSORBED) THE ENTIRE
JURISDICTION OF THE STATES OVER THEIR LOCAL AND DOMESTIC AFFAIRS." 
(FN11) 

THIS ACT OF APRIL 20, 1871, SOMETIMES CALLED "THE THIRD 'FORCE
BILL,'" WAS PASSED BY A CONGRESS THAT HAD THE KLAN "PARTICULARLY IN
MIND."  (FN12)  THE DEBATES ARE REPLETE WITH REFERENCES TO THE LAWLESS
CONDITIONS EXISTING IN THE SOUTH IN 1871.  THERE WAS AVAILABLE TO THE
CONGRESS DURING THESE DEBATES A REPORT, NEARLY 600 PAGES IN LENGTH,
DEALING WITH THE ACTIVITIES OF THE KLAN AND THE INABILITY OF THE STATE
GOVERNMENTS TO COPE WITH IT.  (FN13)  THIS REPORT WAS DRAWN ON BY MANY
OF THE SPEAKERS.  (FN14)  IT WAS NOT THE UNAVAILABILITY OF STATE
REMEDIES BUT THE FAILURE OF CERTAIN STATES TO ENFORCE THE LAWS WITH AN
EQUAL HAND THAT FURNISHED THE POWERFUL MOMENTUM BEHIND THIS "FORCE
BILL."  MR. LOWE OF KANSAS SAID: 

"WHILE MURDER IS STALKING ABROAD IN DISGUISE, WHILE WHIPPINGS AND
LYNCHINGS AND BANISHMENT HAVE BEEN VISITED UPON UNOFFENDING AMERICAN
CITIZENS, THE LOCAL ADMINISTRATIONS HAVE BEEN FOUND INADEQUATE OR
UNWILLING TO APPLY THE PROPER CORRECTIVE.  COMBINATIONS, DARKER THAN
THE NIGHT THAT HIDES THEM, CONSPIRACIES, WICKED AS THE WORST OF FELONS
COULD DEVISE, HAVE GONE UNWHIPPED OF JUSTICE.  IMMUNITY IS GIVEN TO
CRIME, AND THE RECORDS OF THE PUBLIC TRIBUNALS ARE SEARCHED IN VAID FOR
ANY EVIDENCE OF EFFECTIVE REDRESS."  (FN15) 

MR. BEATTY OF OHIO SUMMARIZED IN THE HOUSE THE CASE FOR THE BILL WHEN
HE SAID: 

"  ...  CERTAIN STATES HAVE DENIED TO PERSONS WITHIN THEIR
JURISDICTION THE EQUAL PROTECTION OF THE LAWS.  THE PROOF ON THIS POINT
IS VOLUMINOUS AND UNQUESTIONABLE  ...  .  MEN WERE MURDERED, HOUSES
WERE BURNED, WOMEN WERE OUTRAGED, MEN WERE SCOURGED, AND OFFICERS OF
THE LAW SHOT DOWN; AND THE STATE MADE NO SUCCESSFUL EFFORT TO BRING THE
GUILTY TO PUNISHMENT OR AFFORD PROTECTION OR REDRESS TO THE OUTRAGED
AND INNOCENT.  THE STATE, FROM LACK OF POWER OR INCLINATION,
PRACTICALLY DENIED THE EQUAL PROTECTION OF THE LAW TO THESE PERSONS." 
(FN16) 

WHILE ONE MAIN SCOURGE OF THE EVIL - PERHAPS THE LEADING ONE - WAS
THE KU KLUX KLAN, (FN17) THE REMEDY CREATED WAS NOT A REMEDY AGAINST IT
OR ITS MEMBERS BUT AGAINST THOSE WHO REPRESENTING A STATE IN SOME
CAPACITY WERE UNABLE OR UNWILLING TO ENFORCE A STATE LAW.  SENATOR
OSBORN OF FLORIDA PUT THE PROBLEM IN THESE TERMS:  (FN18) 

"THAT THE STATE COURTS IN THE SEVERAL STATES HAVE BEEN UNABLE TO
ENFORCE THE CRIMINAL LAWS OF THEIR RESPECTIVE STATES OR TO SUPPRESS THE
DISORDERS EXISTING, AND IN FACT THAT THE PRESERVATION OF LIFE AND
PROPERTY IN MANY SECTIONS OF THE COUNTRY IS BEYOND THE POWER OF THE
STATE GOVERNMENT, IS A SUFFICIENT REASON WHY CONGRESS SHOULD, SO FAR AS
THEY HAVE AUTHORITY UNDER THE CONSTITUTION, ENACT THE LAWS NECESSARY
FOR THE PROTECTION OF CITIZENS OF THE UNITED STATES.  THE QUESTION OF
THE CONSTITUTIONAL AUTHORITY FOR THE REQUISITE LEGISLATION HAS BEEN
SUFFICIENTLY DISCUSSED." 

THERE WAS, IT WAS SAID, NO QUARREL WITH THE STATE LAWS ON THE BOOKS. 
IT WAS THEIR LACK OF ENFORCEMENT THAT WAS THE NUB OF THE DIFFICULTY. 
SPEAKING OF CONDITIONS IN VIRGINIA, MR. PORTER OF THAT STATE SAID:
(FN19) 

"THE OUTRAGES COMMITTED UPON LOYAL MEN THERE ARE UNDER THE FORMS OF
LAW." 

MR. BURCHARD OF ILLINOIS POINTED OUT THAT THE STATUTES OF A STATE MAY
SHOW NO DISCRIMINATION: (FN20) 

"IF THE STATE LEGISLATURE PASS A LAW DISCRIMINATING AGAINST ANY
PORTION OF ITS CITIZENS, OR IF IT FAILS TO ENACT PROVISIONS EQUALLY
APPLICABLE TO EVERY CLASS FOR THE PROTECTION OF THEIR PERSON AND
PROPERTY, IT WILL BE ADMITTED THAT THE STATE DOES NOT AFFORD THE EQUAL
PROTECTION.  BUT IF THE STATUTES SHOW NO DISCRIMINATION, YET IN ITS
JUDICIAL TRIBUNALS ONE CLASS IS UNABLE TO SECURE THAT ENFORCEMENT OF
THEIR RIGHTS AND PUNISHMENT FOR THEIR INFRACTION WHICH IS ACCORDED TO
ANOTHER, OR IF SECRET COMBINATIONS OF MEN ARE ALLOWED BY THE EXECUTIVE
TO BAND TOGETHER TO DEPRIVE ONE CLASS OF CITIZENS OF THEIR LEGAL RIGHTS
WITHOUT A PROPER EFFORT TO DISCOVER, DETECT, AND PUNISH THE VIOLATIONS
OF LAW AND ORDER, THE STATE HAS NOT AFFORDED TO ALL ITS CITIZENS THE
EQUAL PROTECTION OF THE LAWS."    MR. HOAR OF MASSACHUSETTS STATED:
(FN21) 

"NOW, IT IS AN EFFECTUAL DENIAL BY A STATE OF THE EQUAL PROTECTION OF
THE LAWS WHEN ANY CLASS OF OFFICERS CHARGED UNDER THE LAWS WITH THEIR
ADMINISTRATION PERMANENTLY AND AS A RULE REFUSE TO EXTEND THAT
PROTECTION.  IF EVERY SHERIFF IN SOUTH CAROLINA REFUSES TO SERVE A WRIT
FOR A COLORED MAN AND THOSE SHERIFFS ARE KEPT IN OFFICE YEAR AFTER YEAR
BY THE PEOPLE OF SOUTH CAROLINA, AND NO VERDICT AGAINST THEM FOR THEIR
FAILURE OF DUTY CAN BE OBTAINED BEFORE A SOUTH CAROLINA JURY, THE STATE
OF SOUTH CAROLINA, THROUGH THE CLASS OF OFFICERS WHO ARE ITS
REPRESENTATIVES TO AFFORD THE EQUAL PROTECTION OF THE LAWS TO THAT
CLASS OF CITIZENS, HAS DENIED THAT PROTECTION.  IF THE JURORS OF SOUTH
CAROLINA CONSTANTLY AND AS A RULE REFUSE TO DO JUSTICE BETWEEN MAN AND
MAN WHERE THE RIGHTS OF A PARTICULAR CLASS OF ITS CITIZENS ARE
CONCERNED, AND THAT STATE AFFORDS BY ITS LEGISLATION NO REMEDY, THAT IS
AS MUCH A DENIAL TO THAT CLASS OF CITIZENS OF THE EQUAL PROTECTION OF
THE LAWS AS IF THE STATE ITSELF PUT ON ITS STATUTE-BOOK A STATUTE
ENACTING THAT NO VERDICT SHOULD BE RENDERED IN THE COURTS OF THAT STATE
IN FAVOR OF THIS CLASS OF CITIZENS." 

SENATOR PRATT OF INDIANA SPOKE OF THE DISCRIMINATION AGAINST UNION
SYMPATHIZERS AND NEGROES IN THE ACTUAL ENFORCEMENT OF THE LAWS:
(FN22) 

"PLAUSIBLY AND SOPHISTICALLY IT IS SAID THE LAWS OF NORTH CAROLINA DO
NOT DISCRIMINATE AGAINST THEM; THAT THE PROVISIONS IN FAVOR OF RIGHTS
AND LIBERTIES ARE GENERAL; THAT THE COURTS ARE OPEN TO ALL; THAT
JURIES, GRAND AND PETIT, ARE COMMANDED TO HEAR AND REDRESS WITHOUT
DISTINCTION AS TO COLOR, RACE, OR POLITICAL SENTIMENT. 

"BUT IT IS A FACT, ASSERTED IN THE REPORT, THAT OF THE HUNDREDS OF
OUTRAGES COMMITTED UPON LOYAL PEOPLE THROUGH THE AGENCY OF THIS KU KLUX
ORGANIZATION NOT ONE HAS BEEN PUNISHED.  THIS DEFECT IN THE
ADMINISTRATION OF THE LAW DOES NOT EXTEND TO OTHER CASES.  VIGOROUSLY
ENOUGH ARE THE LAWS ENFORCED AGAINST UNION PEOPLE.  THEY ONLY FAIL IN
EFFICIENCY WHEN A MAN OF KNOWN UNION SENTIMENTS, WHITE OR BLACK,
INVOKES THEIR AID.  THEN JUSTICE CLOSES THE DOOR OF HER TEMPLES." 

IT WAS PRECISELY THAT BREADTH OF THE REMEDY WHICH THE OPPOSITION
EMPHASIZED.  MR. KERR OF INDIANA REFERRING TO THE SECTION INVOLVED IN
THE PRESENT LITIGATION SAID: 

"THIS SECTION GIVES TO ANY PERSON WHO MAY HAVE BEEN INJURED IN ANY OF
HIS RIGHTS, PRIVILEGES, OR IMMUNITIES OF PERSON OR PROPERTY, A CIVIL
ACTION FOR DAMAGES AGAINST THE WRONGDOER IN THE FEDERAL COURTS.  THE
OFFENSES COMMITTED AGAINST HIM MAY BE THE COMMON VIOLATIONS OF THE
MUNICIPAL LAW OF HIS STATE.  IT MAY GIVE RISE TO NUMEROUS VEXATIONS AND
OUTRAGEOUS PROSECUTIONS, INSPIRED BY MERE MERCENARY CONSIDERATIONS,
PROSECUTED IN A SPIRIT OF PLUNDER, AIDED BY THE CRIMES OF PERJURY AND
SUBORNATION OF PERJURY, MORE RECKLESS AND DANGEROUS TO SOCIETY THAN THE
ALLEGED OFFENSES OUT OF WHICH THE CAUSE OF ACTION MAY HAVE ARISEN.  IT
IS A COVERT ATTEMPT TO TRANSFER ANOTHER LARGE PORTION OF JURISDICTION
FROM THE STATE TRIBUNALS, TO WHICH IT OF RIGHT BELONGS, TO THOSE OF THE
UNITED STATES.  IT IS NEITHER AUTHORIZED NOR EXPEDIENT, AND IS NOT
CALCULATED TO BRING PEACE, OR ORDER, OR DOMESTIC CONTENT AND PROSPERITY
TO THE DISTURBED SOCIETY OF THE SOUTH.  THE CONTRARY WILL CERTAINLY BE
ITS EFFECT."  (FN23) 

MR. VOORHEES OF INDIANA, ALSO SPEAKING IN OPPOSITION, GAVE IT THE
SAME CONSTRUCTION:  (FN24) 

"AND NOW FOR A FEW MOMENTS LET US INSPECT THE PROVISIONS OF THIS
BILL, INSPIRED AS IT IS BY THE WANING AND DECAYING FORTUNES OF THE
PARTY IN POWER, AND CALLED FOR, AS I HAVE SHOWN, BY NO PUBLIC NECESSITY
WHATEVER.  THE FIRST AND SECOND SECTIONS ARE DESIGNED TO TRANSFER ALL
CRIMINAL JURISDICTION FROM THE COURTS OF THE STATES TO THE COURTS OF
THE UNITED STATES.  THIS IS TO BE DONE UPON THE ASSUMPTION THAT THE
COURTS OF THE SOUTHERN STATES FAIL AND REFUSE TO DO THEIR DUTY IN THE
PUNISHMENT OF OFFENDERS AGAINST THE LAW." 

SENATOR THURMAN OF OHIO SPOKE IN THE SAME VEIN ABOUT THE SECTION WE
ARE NOW CONSIDERING:  (FN25) 

"IT AUTHORIZES ANY PERSON WHO IS DEPRIVED OF ANY RIGHT, PRIVILEGE, OR
IMMUNITY SECURED TO HIM BY THE CONSTITUTION OF THE UNITED STATES, TO
BRING AN ACTION AGAINST THE WRONG-DOER IN THE FEDERAL COURTS, AND THAT
WITHOUT ANY LIMIT WHATSOEVER AS TO THE AMOUNT IN CONTROVERSY.  THE
DEPRIVATION MAY BE OF THE SLIGHTEST CONCEIVABLE CHARACTER, THE DAMAGES
IN THE ESTIMATION OF ANY SENSIBLE MAN MAY NOT BE FIVE DOLLARS OR EVEN
FIVE CENTS; THEY MAY BE WHAT LAWYERS CALL MERELY NOMINAL DAMAGES; AND
YET BY THIS SECTION JURISDICTION OF THAT CIVIL ACTION IS GIVEN TO THE
FEDERAL COURTS INSTEAD OF ITS BEING PROSECUTED AS NOW IN THE COURTS OF
THE STATES." 

THE DEBATES WERE LONG AND EXTENSIVE.  IT IS ABUNDANTLY CLEAR THAT ONE
REASON THE LEGISLATION WAS PASSED WAS TO AFFORD A FEDERAL RIGHT IN
FEDERAL COURTS BECAUSE, BY REASON OF PREJUDICE, PASSION, NEGLECT,
INTOLERANCE OR OTHERWISE, STATE LAWS MIGHT NOT BE ENFORCED AND THE
CLAIMS OF CITIZENS TO THE ENJOYMENT OF RIGHTS, PRIVILEGES, AND
IMMUNITIES GUARANTEED BY THE FOURTEENTH AMENDMENT MIGHT BE DENIED BY
THE STATE AGENCIES. 

MUCH IS MADE OF THE HISTORY OF SEC. 2 OF THE PROPOSED LEGISLATION. 
AS INTRODUCED SEC. 2 WAS VERY BROAD: 

"  ...  IF TWO OR MORE PERSONS SHALL, WITHIN THE LIMITS OF ANY STATE,
BAND, CONSPIRE, OR COMBINE TOGETHER TO DO ANY ACT IN VIOLATION OF THE
RIGHTS, PRIVILEGES, OR IMMUNITIES OF ANY PERSON, TO WHICH HE IS
ENTITLED UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES, WHICH,
COMMITTED WITHIN A PLACE UNDER THE SOLE AND EXCLUSIVE JURISDICTION OF
THE UNITED STATES, WOULD, UNDER ANY LAW OF THE UNITED STATES THEN IN
FORCE, CONSTITUTE THE CRIME OF EITHER MURDER, MANSLAUGHTER, MAYHEM,
ROBBERY, ASSAULT AND BATTERY, PERJURY, SUBORNATION OF PERJURY, CRIMINAL
OBSTRUCTION OF LEGAL PROCESS OR RESISTANCE OF OFFICERS IN DISCHARGE OF
OFFICIAL DUTY, ARSON, OR LARCENY; AND IF ONE OR MORE OF THE PARTIES TO
SAID CONSPIRACY OR COMBINATION SHALL DO ANY ACT TO EFFECT THE OBJECT
THEREOF, ALL THE PARTIES TO OR ENGAGED IN SAID CONSPIRACY OR
COMBINATION, WHETHER PRINCIPALS OR ACCESSORIES, SHALL BE DEEMED GUILTY
OF A FELONY  ...  ." 

IT WAS THIS PROVISION THAT RAISED THE GREATEST STORM.  IT WAS SEC. 2
THAT WAS REWRITTEN SO AS TO BE IN THE MAIN CONFINED TO CONSPIRACIES TO
INTERFERE WITH A FEDERAL OR STATE OFFICER IN THE PERFORMANCE OF HIS
DUTIES.  17 STAT. 13.  SENATOR TRUMBULL SAID:  (FN26) 

"THOSE PROVISIONS WERE CHANGED, AND AS THE BILL PASSED THE HOUSE OF
REPRESENTATIVES, IT WAS UNDERSTOOD BY THE MEMBERS OF THAT BODY TO GO NO
FURTHER THAN TO PROTECT PERSONS IN THE RIGHTS WHICH WERE GUARANTIED TO
THEM BY THE CONSTITUTION AND LAWS OF THE UNITED STATES, AND IT DID NOT
UNDERTAKE TO FURNISH REDRESS FOR WRONGS DONE BY ONE PERSON UPON ANOTHER
IN ANY OF THE STATES OF THE UNION IN VIOLATION OF THEIR LAWS, UNLESS HE
ALSO VIOLATED SOME LAW OF THE UNITED STATES, NOR TO PUNISH ONE PERSON
FOR AN ORDINARY ASSAULT AND BATTERY COMMITTED ON ANOTHER IN A STATE." 

BUT SEC. 1 - THE SECTION WITH WHICH WE ARE HERE CONCERNED - WAS NOT
CHANGED AS RESPECTS ANY FEATURE WITH WHICH WE ARE PRESENTLY CONCERNED. 
(FN27)  THE WORDS "UNDER COLOR OF" LAW WERE IN THE LEGISLATION FROM THE
BEGINNING TO THE END.  THE CHANGES HAILED BY THE OPPOSITION - INDEED
THE HISTORY OF THE EVOLUTION OF SEC. 2 MUCH RELIED UPON NOW - ARE
UTTERLY IRRELEVANT TO THE PROBLEM BEFORE US, VIZ., THE MEANING OF
"UNDER COLOR OF" LAW.  THE VINDICATION OF STATES' RIGHTS WHICH WAS
HAILED IN THE AMENDMENTS TO SEC. 2 RAISES NO IMPLICATION AS TO THE
CONSTRUCTION TO BE GIVEN TO "COLOR OF ANY LAW" IN SEC. 1.  THE SCOPE OF
SEC. 1 - UNDER ANY CONSTRUCTION - IS ADMITTEDLY NARROWER THAN WAS THE
SCOPE OF THE ORIGINAL VERSION OF SEC. 2.  OPPONENTS OF THE ACT,
HOWEVER, DID NOT FAIL TO NOTE THAT BY VIRTUE OF SEC. 1 FEDERAL COURTS
WOULD SIT IN JUDGMENT ON THE MISDEEDS OF STATE OFFICERS.  (FN28)
PROPONENTS OF THE ACT, ON THE OTHER HAND, WERE AWARE OF THE EXTENSION
OF FEDERAL POWER CONTEMPLATED BY EVERY SECTION OF THE ACT.  THEY FOUND
JUSTIFICATION, HOWEVER, FOR THIS EXTENSION IN CONSIDERATIONS SUCH AS
THOSE ADVANCED BY MR. HOAR:  (FN29) 

"THE QUESTION IS NOT WHETHER A MAJORITY OF THE PEOPLE IN A MAJORITY
OF THE STATES ARE LIKELY TO BE ATTACHED TO AND ABLE TO SECURE THEIR OWN
LIBERTIES.  THE QUESTION IS NOT WHETHER THE MAJORITY OF THE PEOPLE IN
EVERY STATE ARE NOT LIKELY TO DESIRE TO SECURE THEIR OWN RIGHTS.  IT
IS, WHETHER A MAJORITY OF THE PEOPLE IN EVERY STATE ARE SURE TO BE SO
ATTACHED TO THE PRINCIPLES OF CIVIL FREEDOM AND CIVIL JUSTICE AS TO BE
AS MUCH DESIROUS OF PRESERVING THE LIBERTIES OF OTHERS AS THEIR OWN, AS
TO INSURE THAT UNDER NO TEMPTATION OF PARTY SPIRIT, UNDER NO POLITICAL
EXCITEMENT, UNDER NO JEALOUSY OF RACE OR CASTE, WILL THE MAJORITY
EITHER IN NUMBERS OR STRENGTH IN ANY STATE SEEK TO DEPRIVE THE
REMAINDER OF THE POPULATION OF THEIR CIVIL RIGHTS." 

ALTHOUGH THE LEGISLATION WAS ENACTED BECAUSE OF THE CONDITIONS THAT
EXISTED IN THE SOUTH AT THAT TIME, IT IS CAST IN GENERAL LANGUAGE AND
IS AS APPLICABLE TO ILLINOIS AS IT IS TO THE STATES WHOSE NAMES WERE
MENTIONED OVER AND AGAIN IN THE DEBATES.  IT IS NO ANSWER THAT THE
STATE HAS A LAW WHICH IF ENFORCED WOULD GIVE RELIEF.  THE FEDERAL
REMEDY IS SUPPLEMENTARY TO THE STATE REMEDY, AND THE LATTER NEED NOT BE
FIRST SOUGHT AND REFUSED BEFORE THE FEDERAL ONE IS INVOKED.  HENCE THE
FACT THAT ILLINOIS BY ITS CONSTITUTION AND LAWS OUTLAWS UNREASONABLE
SEARCHES AND SEIZURES IS NO BARRIER TO THE PRESENT SUIT IN THE FEDERAL
COURT. 

WE HAD BEFORE US IN UNITED STATES V. CLASSIC, SUPRA, SEC. 20 OF THE
CRIMINAL CODE, 18 U.S.C. SEC. 242, (FN30) WHICH PROVIDES A CRIMINAL
PUNISHMENT FOR ANYONE WHO "UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, OR CUSTOM" SUBJECTS ANY INHABITANT OF A STATE TO THE
DEPRIVATION OF "ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED OR
PROTECTED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES."  SECTION
242 FIRST CAME INTO THE LAW AS SEC. 2 OF THE CIVIL RIGHTS ACT, ACT OF
APRIL 9, 1866, 14 STAT. 27.  AFTER PASSAGE OF THE FOURTEENTH AMENDMENT,
THIS PROVISION WAS RE-ENACTED AND AMENDED BY SECS. 17, 18, ACT OF MAY
31, 1870, 16 STAT. 140, 144.  (FN31)  THE RIGHT INVOLVED IN THE CLASSIC
CASE WAS THE RIGHT OF VOTERS IN A PRIMARY TO HAVE THEIR VOTES COUNTED. 
THE LAWS OF LOUISIANA REQUIRED THE DEFENDANTS "TO COUNT THE BALLOTS, TO
RECORD THE RESULT OF THE COUNT, AND TO CERTIFY THE RESULT OF THE
ELECTION."  UNITED STATES V. CLASSIC, SUPRA, 325-326.  BUT ACCORDING TO
THE INDICTMENT THEY DID NOT PERFORM THEIR DUTY.  IN AN OPINION WRITTEN
BY MR. JUSTICE (LATER CHIEF JUSTICE) STONE, IN WHICH MR. JUSTICE
ROBERTS, MR. JUSTICE REED, AND MR. JUSTICE FRANKFURTER JOINED, THE
COURT RULED, "MISUSE OF POWER, POSSESSED BY VIRTUE OF STATE LAW AND
MADE POSSIBLE ONLY BECAUSE THE WRONGDOER IS CLOTHED WITH THE AUTHORITY
OF STATE LAW, IS ACTION TAKEN 'UNDER COLOR OF' STATE LAW."  ID., 326. 
THERE WAS A DISSENTING OPINION; BUT THE RULING AS TO THE MEANING OF
"UNDER COLOR OF" STATE LAW WAS NOT QUESTIONED. 

THAT VIEW OF THE MEANING OF THE WORDS "UNDER COLOR OF" STATE LAW, 18
U.S.C. SEC. 242, WAS REAFFIRMED IN SCREWS V. UNITED STATES, SUPRA, 108
113.  THE ACTS THERE COMPLAINED OF WERE COMMITTED BY STATE OFFICERS IN
PERFORMANCE OF THEIR DUTIES, VIZ., MAKING AN ARREST EFFECTIVE.  IT WAS
URGED THERE, AS IT IS HERE, THAT "UNDER COLOR OF" STATE LAW SHOULD NOT
BE CONSTRUED TO DUPLICATE IN FEDERAL LAW WHAT WAS AN OFFENSE UNDER
STATE LAW.  ID. (DISSENTING OPINION) 138-149, 157-161.  IT WAS SAID
THERE, AS IT IS HERE, THAT THE RULING IN THE CLASSIC CASE AS TO THE
MEANING OF "UNDER COLOR OF" STATE LAW WAS NOT IN FOCUS AND WAS ILL
ADVISED.  ID.  (DISSENTING OPINION) 146-147.  IT WAS ARGUED THERE, AS
IT IS HERE, THAT "UNDER COLOR OF" STATE LAW INCLUDED ONLY ACTION TAKEN
BY OFFICIALS PURSUANT TO STATE LAW.  ID. (DISSENTING OPINION) 141-146. 
WE REJECTED THAT VIEW.  ID., 110-113 (CONCURRING OPINION) 114-117.  WE
STATED: 

"THE CONSTRUCTION GIVEN SEC. 20 (18 U.S.C. SEC. 242) IN THE CLASSIC
CASE FORMULATED A RULE OF LAW WHICH HAS BECOME THE BASIS OF FEDERAL
ENFORCEMENT IN THIS IMPORTANT FIELD.  THE RULE ADOPTED IN THAT CASE WAS
FORMULATED AFTER MATURE CONSIDERATION.  IT SHOULD BE GOOD FOR MORE THAN
ONE DAY ONLY.  WE DO NOT HAVE HERE A SITUATION COMPARABLE TO MAHNICH V.
SOUTHERN S.S. CO., 321 U.S. 96, WHERE WE OVERRULED A DECISION
DEMONSTRATED TO BE A SPORT IN THE LAW AND INCONSISTENT WITH WHAT
PRECEDED AND WHAT FOLLOWED.  THE CLASSIC CASE WAS NOT THE PRODUCT OF
HASTY ACTION OR INADVERTENCE.  IT WAS NOT OUT OF LINE WITH THE CASES
WHICH PRECEDED.  IT WAS DESIGNED TO FASHION THE GOVERNING RULE OF LAW
IN THIS IMPORTANT FIELD.  WE ARE NOT DEALING WITH CONSTITUTIONAL
INTERPRETATIONS WHICH THROUGHOUT THE HISTORY OF THE COURT HAVE WISELY
REMAINED FLEXIBLE AND SUBJECT TO FREQUENT RE-EXAMINATION.  THE MEANING
WHICH THE CLASSIC CASE GAVE TO THE PHRASE 'UNDER COLOR OF ANY LAW'
INVOLVED ONLY A CONSTRUCTION OF THE STATUTE.  HENCE IF IT STATES A RULE
UNDESIRABLE IN ITS CONSEQUENCES, CONGRESS CAN CHANGE IT.  WE ADD ONLY
TO THE INSTABILITY AND UNCERTAINTY OF THE LAW IF WE REVISE THE MEANING
OF SEC. 20 (18 U.S.C. SEC. 242) TO MEET THE EXIGENCIES OF EACH CASE
COMING BEFORE US."  ID., 112-113. 

WE ADHERED TO THAT VIEW IN WILLIAMS V. UNITED STATES, SUPRA, 99. 

MR. SHELLABARGER, REPORTING OUT THE BILL WHICH BECAME THE KU KLUX
ACT, SAID OF THE PROVISION WITH WHICH WE NOW DEAL: 

"THE MODEL FOR IT WILL BE FOUND IN THE SECOND SECTION OF THE ACT OF
APRIL 9, 1866, KNOWN AS THE 'CIVIL RIGHTS ACT'  ...  .  THIS SECTION OF
THIS BILL, ON THE SAME STATE OF FACTS, NOT ONLY PROVIDES A CIVIL REMEDY
FOR PERSONS WHOSE FORMER CONDITION MAY HAVE BEEN THAT OF SLAVES, BUT
ALSO TO ALL PEOPLE WHERE, UNDER COLOR OF STATE LAW, THEY OR ANY OF THEM
MAY BE DEPRIVED OF RIGHTS  ...  ."  (FN32)    THUS, IT IS BEYOND DOUBT
THAT THIS PHRASE SHOULD BE ACCORDED THE SAME CONSTRUCTION IN BOTH
STATUTES - IN SEC. 1979 AND IN 18 U.S.C. SEC. 242. 

SINCE THE SCREWS AND WILLIAMS DECISIONS, CONGRESS HAS HAD SEVERAL
PIECES OF CIVIL RIGHTS LEGISLATION BEFORE IT.  IN 1956 ONE BILL REACHED
THE FLOOR OF THE HOUSE.  THIS MEASURE HAD AT LEAST ONE PROVISION IN IT
PENALIZING ACTIONS TAKEN "UNDER COLOR OF LAW OR OTHERWISE."  (FN33)  A
VIGOROUS MINORITY REPORT WAS FILED ATTACKING, INTER ALIA, THE WORDS "OR
OTHERWISE."  (FN34)  BUT NOT A WORD OF CRITICISM OF THE PHRASE "UNDER
COLOR OF" STATE LAW AS PREVIOUSLY CONSTRUED BY THE COURT IS TO BE FOUND
IN THAT REPORT.    SECTION 131(C) OF THE ACT OF SEPTEMBER 9, 1957, 71
STAT. 634, 637, AMENDED 42 U.S.C. SEC.  1971 BY ADDING A NEW SUBSECTION
WHICH PROVIDES THAT NO PERSON "WHETHER ACTING UNDER COLOR OF LAW OR
OTHERWISE" SHALL INTIMIDATE ANY OTHER PERSON IN VOTING AS HE CHOOSES
FOR FEDERAL OFFICIALS.  A VIGOROUS MINORITY REPORT WAS FILED (FN35)
ATTACKING THE WIDE SCOPE OF THE NEW SUBSECTION BY REASON OF THE WORDS
"OR OTHERWISE."  IT WAS SAID IN THAT MINORITY REPORT THAT THOSE WORDS
WENT FAR BEYOND WHAT THIS COURT HAD CONSTRUED "UNDER COLOR OF LAW" TO
MEAN.  (FN36)  BUT THERE WAS NOT A WORD OF CRITICISM DIRECTED TO THE
PRIOR CONSTRUCTION GIVEN BY THIS COURT TO THE WORDS "UNDER COLOR OF"
LAW. 

THE ACT OF MAY 6, 1960, 74 STAT. 86, USES "UNDER COLOR OF" LAW IN TWO
CONTEXTS, ONCE WHEN SEC. 306 DEFINES "OFFICER OF ELECTION" AND NEXT
WHEN SEC. 601(A) GIVES A JUDICIAL REMEDY ON BEHALF OF A QUALIFIED VOTER
DENIED THE OPPORTUNITY TO REGISTER.  ONCE AGAIN THERE WAS A COMMITTEE
REPORT CONTAINING MINORITY VIEWS.  (FN37)  ONCE AGAIN NO ONE CHALLENGED
THE SCOPE GIVEN BY OUR PRIOR DECISIONS TO THE PHRASE "UNDER COLOR OF"
LAW. 

IF THE RESULTS OF OUR CONSTRUCTION OF "UNDER COLOR OF" LAW WERE AS
HORRENDOUS AS NOW CLAIMED, IF THEY WERE AS DISRUPTIVE OF OUR FEDERAL
SCHEME AS NOW URGED, IF THEY WERE SUCH AN UNWARRANTED INVASION OF
STATES' RIGHTS AS PRETENDED, SURELY THE VOICE OF THE OPPOSITION WOULD
HAVE BEEN HEARD IN THOSE COMMITTEE REPORTS.  THEIR SILENCE AND THE NEW
USES TO WHICH "UNDER COLOR OF" LAW HAVE RECENTLY BEEN GIVEN REINFORCE
OUR CONCLUSION THAT OUR PRIOR DECISIONS WERE CORRECT ON THIS MATTER OF
CONSTRUCTION. 

WE CONCLUDE THAT THE MEANING GIVEN "UNDER COLOR OF" LAW IN THE
CLASSIC CASE AND IN THE SCREWS AND WILLIAMS CASES WAS THE CORRECT ONE;
AND WE ADHERE TO IT. 

IN THE SCREWS CASE WE DEALT WITH A STATUTE THAT IMPOSED CRIMINAL
PENALTIES FOR ACTS "WILFULLY" DONE.  WE CONSTRUED THAT WORD IN ITS
SETTING TO MEAN THE DOING OF AN ACT WITH "A SPECIFIC INTENT TO DEPRIVE
A PERSON OF A FEDERAL RIGHT."  325 U.S., AT 103.  WE DO NOT THINK THAT
GLOSS SHOULD BE PLACED ON SEC. 1979 WHICH WE HAVE HERE.  THE WORD
"WILFULLY" DOES NOT APPEAR IN SEC. 1979.  MOREOVER, SEC. 1979 PROVIDES
A CIVIL REMEDY, WHILE IN THE SCREWS CASE WE DEALT WITH A CRIMINAL LAW
CHALLENGED ON THE GROUND OF VAGUENESS.  SECTION 1979 SHOULD BE READ
AGAINST THE BACKGROUND OF TORT LIABILITY THAT MAKES A MAN RESPONSIBLE
FOR THE NATURAL CONSEQUENCES OF HIS ACTIONS. 

SO FAR, THEN, THE COMPLAINT STATES A CAUSE OF ACTION.  THERE REMAINS
TO CONSIDER ONLY A DEFENSE PECULIAR TO THE CITY OF CHICAGO. 

 III. 

THE CITY OF CHICAGO ASSERTS THAT IT IS NOT LIABLE UNDER SEC. 1979. 
WE DO NOT STOP TO EXPLORE THE WHOLE RANGE OF QUESTIONS TENDERED US ON
THIS ISSUE AT ORAL ARGUMENT AND IN THE BRIEFS.  FOR WE ARE OF THE
OPINION THAT CONGRESS DID NOT UNDERTAKE TO BRING MUNICIPAL CORPORATIONS
WITHIN THE AMBIT OF SEC. 1979. 

WHEN THE BILL THAT BECAME THE ACT OF APRIL 20, 1871, WAS BEING
DEBATED IN THE SENATE, SENATOR SHERMAN OF OHIO PROPOSED AN AMENDMENT
WHICH WOULD HAVE MADE "THE INHABITANTS OF THE COUNTY, CITY, OR PARISH"
IN WHICH CERTAIN ACTS OF VIOLENCE OCCURRED LIABLE "TO PAY FULL
COMPENSATION" TO THE PERSON DAMAGED OR HIS WIDOW OR LEGAL
REPRESENTATIVE.  (FN38)  THE AMENDMENT WAS ADOPTED BY THE SENATE. 
(FN39)  THE HOUSE, HOWEVER, REJECTED IT.  (FN40)  THE CONFERENCE
COMMITTEE REPORTED ANOTHER VERSION.   (FN41)  THE HOUSE REJECTED THE
CONFERENCE REPORT.  (FN42)  IN A SECOND CONFERENCE THE SHERMAN
AMENDMENT WAS DROPPED AND IN ITS PLACE SEC. 6 OF THE ACT OF APRIL 20,
1871, WAS SUBSTITUTED.  (FN43)  THIS NEW SECTION, WHICH IS NOW R.S.
SEC. 1981, 42 U.S.C. SEC. 1986, DROPPED OUT ALL PROVISION FOR MUNICIPAL
LIABILITY AND EXTENDED LIABILITY IN DAMAGES TO "ANY PERSON OR PERSONS,
HAVING KNOWLEDGE THAT ANY" OF THE SPECIFIED WRONGS ARE BEING
COMMITTED.  MR. POLAND, SPEAKING FOR THE HOUSE CONFEREES ABOUT THE
SHERMAN PROPOSAL TO MAKE MUNICIPALITIES LIABLE, SAID: 

"WE INFORMED THE CONFEREES ON THE PART OF THE SENATE THAT THE HOUSE
HAD TAKEN A STAND ON THAT SUBJECT AND WOULD NOT RECEDE FROM IT; THAT
THAT SECTION IMPOSING LIABILITY UPON TOWNS AND COUNTIES MUST GO OUT OR
WE SHOULD FAIL TO AGREE."  (FN44) 

THE OBJECTION TO THE SHERMAN AMENDMENT STATED BY MR. POLAND WAS THAT
"THE HOUSE HAD SOLEMNLY DECIDED THAT IN THEIR JUDGMENT CONGRESS HAD NO
CONSTITUTIONAL POWER TO IMPOSE ANY OBLIGATION UPON COUNTY AND TOWN
ORGANIZATIONS, THE MERE INSTRUMENTALITY FOR THE ADMINISTRATION OF STATE
LAW."  (FN45)  THE QUESTION OF CONSTITUTIONAL POWER OF CONGRESS TO
IMPOSE CIVIL LIABILITY ON MUNICIPALITIES WAS VIGOROUSLY DEBATED WITH
POWERFUL ARGUMENTS ADVANCED IN THE AFFIRMATIVE.  (FN46) 

MUCH RELIANCE IS PLACED ON THE ACT OF FEBRUARY 25, 1871, 16 STAT.
431, ENTITLED "AN ACT PRESCRIBING THE FORM OF THE ENACTING AND
RESOLVING CLAUSES OF ACTS AND RESOLUTIONS OF CONGRESS, AND RULES FOR
THE CONSTRUCTION THEREOF."  SECTION 2 OF THIS ACT PROVIDES THAT "THE
WORD 'PERSON' MAY EXTEND AND BE APPLIED TO BODIES POLITIC AND
CORPORATE."  (FN47)  IT SHOULD BE NOTED, HOWEVER, THAT THIS DEFINITION
IS MERELY AN ALLOWABLE, NOT A MANDATORY, ONE.  IT IS SAID THAT DOUBTS
SHOULD BE RESOLVED IN FAVOR OF MUNICIPAL LIABILITY BECAUSE PRIVATE
REMEDIES AGAINST OFFICERS FOR ILLEGAL SEARCHES AND SEIZURES ARE
CONSPICUOUSLY INEFFECTIVE, (FN48) AND BECAUSE MUNICIPAL LIABILITY WILL
NOT ONLY AFFORD PLAINTIFFS RESPONSIBLE DEFENDANTS BUT CAUSE THOSE
DEFENDANTS TO ERADICATE ABUSES THAT EXIST AT THE POLICE LEVEL.  (FN49)
WE DO NOT REACH THOSE POLICY CONSIDERATIONS.  NOR DO WE REACH THE
CONSTITUTIONAL QUESTION WHETHER CONGRESS HAS THE POWER TO MAKE
MUNICIPALITIES LIABLE FOR ACTS OF ITS OFFICERS THAT VIOLATE THE CIVIL
RIGHTS OF INDIVIDUALS. 

THE RESPONSE OF THE CONGRESS TO THE PROPOSAL TO MAKE MUNICIPALITIES
LIABLE FOR CERTAIN ACTIONS BEING BROUGHT WITHIN FEDERAL PURVIEW BY THE
ACT OF APRIL 20, 1871, WAS SO ANTAGONISTIC THAT WE CANNOT BELIEVE THAT
THE WORD "PERSON" WAS USED IN THIS PARTICULAR ACT TO INCLUDE THEM. 
(FN50) ACCORDINGLY WE HOLD THAT THE MOTION TO DISMISS THE COMPLAINT
AGAINST THE CITY OF CHICAGO WAS PROPERLY GRANTED.  BUT SINCE THE
COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AGAINST THE OFFICIALS THE
JUDGMENT MUST BE AND IS REVERSED. 

FN1  THIS SECTION PROVIDES IN MATERIAL PART: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION AUTHORIZED BY LAW TO BE COMMENCED BY ANY PERSON: 

     *   *         *         *         * 

"(3)  TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,
STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT,
PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED STATES
OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF CITIZENS OR OF
ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES." 

FN2  SUBSECTION (A) PROVIDES: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL CIVIL
ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF
$10,000, EXCLUSIVE OF INTEREST AND COSTS, AND ARISES UNDER THE
CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES." 

IN THEIR COMPLAINT, PETITIONERS ALSO INVOKED R.S. SECS. 1980, 1981,
42 U.S.C. SECS. 1985, 1986.  BEFORE THIS COURT, HOWEVER, PETITIONERS
HAVE LIMITED THEIR CLAIM TO RECOVERY TO THE LIABILITY IMPOSED BY SEC.
1979.  ACCORDINGLY, ONLY THAT SECTION IS BEFORE US. 

FN3  SEE CONG. GLOBE, 42D CONG., 1ST SESS., APP. 68, 80, 83-85. 

FN4  ACT OF APRIL 9, 1866, 14 STAT. 27. 

FN5  SUPRA, NOTE 3, 568. 

FN6  ILLINOIS CONST., ART. II, SEC. 6, PROVIDES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED; AND NO WARRANT SHALL ISSUE WITHOUT PROBABLE CAUSE,
SUPPORTED BY AFFIDAVIT, PARTICULARLY DESCRIBING THE PLACE TO BE
SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED."  RESPONDENTS ALSO
POINT TO ILL. REV. STAT., C. 38, SECS.  252, 449.1; CHICAGO, ILLINOIS,
MUNICIPAL CODE, SEC. 11-40. 

FN7  CONG. GLOBE, 42D CONG., 1ST SESS., P. 244. 

FN8  ID., APP. 268. 

FN9  ID., P. 345. 

FN10  ID., P. 365.  THE SPEAKER, MR. ARTHUR OF KENTUCKY, HAD NO
DOUBTS AS TO THE SCOPE OF SEC. 1: "IF THE SHERIFF LEVY AN EXECUTION,
EXECUTE A WRIT, SERVE A SUMMONS, OR MAKE AN ARREST, ALL ACTING UNDER A
SOLEMN, OFFICIAL OATH, THOUGH AS PURE IN DUTY AS A SAINT AND AS
IMMACULATE AS A SERAPH, FOR A MERE ERROR OF JUDGMENT, (HE IS LIABLE)
...  ."  IBID. 

FN11  ID., P. 366. 

FN12  RANDALL, THE CIVIL WAR AND RECONSTRUCTION (1937), P. 857. 

FN13  S. REP. NO. 1, 42D CONG., 1ST SESS. 

FN14  SEE, E.G., CONG. GLOBE, 42D CONG., 1ST SESS., APP. 166-167. 

FN15  ID., P. 374. 

FN16  ID., P. 428. 

FN17  AS RANDALL, OP. CIT., SUPRA, NOTE 12, P. 855, SAYS IN
DISCUSSING THE KU KLUX KLAN:  "A FRIENDLY VIEW OF THE ORDER MIGHT
REPRESENT IT AS AN AGENCY OF SOCIAL CONTROL IN THE SOUTH.  YET IT NEVER
ATTAINED THE DIGNITY OF THE VIGILANCE COMMITTEES OF THE WESTERN STATES
NOR OF THE COMMITTEES OF SAFETY OF REVOLUTIONARY TIMES." 

FN18  CONG. GLOBE, 42D CONG., 1ST SESS. 653. 

FN19  ID., APP. 277. 

FN20  ID., APP. 315. 

FN21  ID., P. 334. 

FN22  ID., P. 505. 

FN23  ID., APP., P. 50.  MR. GOLLADAY OF TENNESSEE EXPRESSED THE SAME
CONCERN: 

"IS THE GREAT STATE OF NEW YORK INVADED EVERY TIME A MURDER IS
COMMITTED WITHIN HER BOUNDS?  WAS THE GREAT STATE OF PENNSYLVANIA
INVADED WHEN RIOTERS IN THE CITY OF PHILADELPHIA BURNED A PUBLIC
BUILDING?  WAS THE GREAT STATE OF MASSACHUSETTS INVADED WHEN WEBSTER,
ONE OF HER FIRST SCHOLARS, WITHIN THE WALLS OF HARVARD MURDERED
PARKMAN, OR LATER, WHEN EVIL-DISPOSED PERSONS VIOLATED HER LAWS IN
LOWELL?  DID THEY REQUIRE THE ARMY AND NAVY AND MARTIAL LAW?  AND, SIR,
BECAUSE A MIDNIGHT MURDERER IS SOMETIMES FOUND IN THE SOUTH IT SHOULD
NOT BE REGARDED AS AN INVASION."  ID., APP. 160. 

FN24  ID., APP. 179. 

FN25  ID., APP. 216. 

FN26  ID., P. 579. 

FN27  SECTION 1 IN THE BILL AS ORIGINALLY INTRODUCED READ AS
FOLLOWS: 

"THAT ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE OF ANY STATE, SHALL SUBJECT, OR CAUSE TO
BE SUBJECTED, ANY PERSON WITHIN THE JURISDICTION OF THE UNITED STATES
TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY
THE CONSTITUTION OF THE UNITED STATES, SHALL, ANY SUCH LAW, STATUTE,
ORDINANCE, REGULATION, CUSTOM, OR USAGE OF THE STATE TO THE CONTRARY
NOTWITHSTANDING, BE LIABLE TO THE PARTY INJURED IN ANY ACTION AT LAW,
SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS; SUCH PROCEEDING
TO BE PROSECUTED IN THE SEVERAL DISTRICT OR CIRCUIT COURTS OF THE
UNITED STATES, WITH AND SUBJECT TO THE SAME RIGHTS OF APPEAL, REVIEW
UPON ERROR, AND OTHER REMEDIES PROVIDED IN LIKE CASES IN SUCH COURTS,
UNDER THE PROVISIONS OF THE ACT OF THE NINTH OF APRIL, EIGHTEEN HUNDRED
AND SIXTY-SIX, ENTITLED 'AN ACT TO PROTECT ALL PERSONS IN THE UNITED
STATES IN THEIR CIVIL RIGHTS, AND TO FURNISH THE MEANS OF THEIR
VINDICATION,' AND THE OTHER REMEDIAL LAWS OF THE UNITED STATES WHICH
ARE IN THEIR NATURE APPLICABLE IN SUCH CASES." 

FN28  SEE TEXT AT NOTE 23, SUPRA; SEE NOTE 10 SUPRA. 

FN29  CONG. GLOBE, 42D CONG., 1ST SESS., PP. 334-335. 

FN30  THEN 18 U.S.C. SEC. 52. 

FN31  FOR A FULL HISTORY OF THE EVOLUTION OF 18 U.S.C. SEC. 242, SEE
SCREWS V. UNITED STATES, 325 U.S. 91, 98-100; UNITED STATES V. CLASSIC,
313 U.S. 299, 327, N. 10; CF. HAGUE V. C.I.O., 307 U.S. 496, 509-510. 

FN32  CONG. GLOBE, 42D CONG., 1ST SESS., APP. 68. 

FN33  H.R. REP. NO. 2187, 84TH CONG., 1D SESS., P. 16. 

FN34  ID., P. 26. 

FN35  H.R. REP. NO. 291, 85TH CONG., 1ST SESS., PP. 24-60. 

FN36  ID., PP. 57-58. 

FN37  H.R. REP. NO. 956, 86TH CONG., 1ST SESS., PP. 32-42. 

FN38  CONG. GLOBE, 42D CONG., 1ST SESS., P. 663.  THE PROPOSED
AMENDMENT READ: 

"THAT IF ANY HOUSE, TENEMENT, CABIN, SHOP, BUILDING, BARN, OR GRANARY
SHALL BE UNLAWFULLY OR FELONIOUSLY DEMOLISHED, PULLED DOWN, BURNED, OR
DESTROYED, WHOLLY OR IN PART, BY ANY PERSONS RIOTOUSLY AND TUMULTUOUSLY
ASSEMBLED TOGETHER; OR IF ANY PERSON SHALL UNLAWFULLY AND WITH FORCE
AND VIOLENCE BE WHIPPED, SCOURGED, WOUNDED, OR KILLED BY ANY PERSONS
RIOTOUSLY AND TUMULTUOUSLY ASSEMBLED TOGETHER; AND IF SUCH OFFENSE WAS
COMMITTED TO DEPRIVE ANY PERSON OF ANY RIGHT CONFERRED UPON HIM BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES, OR TO DETER HIM OR PUNISH
HIM FOR EXERCISING SUCH RIGHT, OR BY REASON OF HIS RACE, COLOR, OR
PREVIOUS CONDITION OF SERVITUDE, IN EVERY SUCH CASE THE INHABITANTS OF
THE COUNTY, CITY, OR PARISH IN WHICH ANY OF THE SAID OFFENSES SHALL BE
COMMITTED SHALL BE LIABLE TO PAY FULL COMPENSATION TO THE PERSON OR
PERSONS DAMNIFIED BY SUCH OFFENSE IF LIVING, OR TO HIS WIDOW OR LEGAL
REPRESENTATIVE IF DEAD; AND SUCH COMPENSATION MAY BE RECOVERED BY SUCH
PERSON OR HIS REPRESENTATIVE BY A SUIT IN ANY COURT OF THE UNITED
STATES OF COMPETENT JURISDICTION IN THE DISTRICT IN WHICH THE OFFENSE
WAS COMMITTED, TO BE IN THE NAME OF THE PERSON INJURED, OR HIS LEGAL
REPRESENTATIVE, AND AGAINST SAID COUNTY, CITY, OR PARISH.  AND
EXECUTION MAY BE ISSUED ON A JUDGMENT RENDERED IN SUCH SUIT AND MAY BE
LEVIED UPON ANY PROPERTY, REAL OR PERSONAL, OF ANY PERSON IN SAID
COUNTY, CITY, OR PARISH, AND THE SAID COUNTY, CITY, OR PARISH MAY
RECOVER THE FULL AMOUNT OF SUCH JUDGMENT, COSTS AND INTEREST, FROM ANY
PERSON OR PERSONS ENGAGED AS PRINCIPAL OR ACCESSORY IN SUCH RIOT IN AN
ACTION IN ANY COURT OF COMPETENT JURISDICTION."    FN39  ID., 704-705. 

FN40  ID., 725. 

FN41  "THAT IF ANY HOUSE, TENEMENT, CABIN, SHOP, BUILDING, BARN, OR
GRANARY SHALL BE UNLAWFULLY OR FELONIOUSLY DEMOLISHED, PULLED DOWN,
BURNED, OR DESTROYED, WHOLLY OR IN PART, BY ANY PERSONS RIOTOUSLY AND
TUMULTUOUSLY ASSEMBLED TOGETHER; OR IF ANY PERSON SHALL UNLAWFULLY AND
WITH FORCE AND VIOLENCE BE WHIPPED, SCOURGED, WOUNDED, OR KILLED BY ANY
PERSONS RIOTOUSLY AND TUMULTUOUSLY ASSEMBLED TOGETHER, WITH INTENT TO
DEPRIVE ANY PERSON OF ANY RIGHT CONFERRED UPON HIM BY THE CONSTITUTION
AND LAWS OF THE UNITED STATES, OR TO DETER HIM OR PUNISH HIM FOR
EXERCISING SUCH RIGHT, OR BY REASON OF HIS RACE, COLOR, OR PREVIOUS
CONDITION OF SERVITUDE, IN EVERY SUCH CASE THE COUNTY, CITY, OR PARISH
IN WHICH ANY OF THE SAID OFFENSES SHALL BE COMMITTED SHALL BE LIABLE TO
PAY FULL COMPENSATION TO THE PERSON OR PERSONS DAMNIFIED BY SUCH
OFFENSE, IF LIVING, OR TO HIS WIDOW OR LEGAL REPRESENTATIVE IF DEAD;
AND SUCH COMPENSATION MAY BE RECOVERED IN AN ACTION ON THE CASE BY SUCH
PERSON OR HIS REPRESENTATIVE IN ANY COURT OF THE UNITED STATES OF
COMPETENT JURISDICTION IN THE DISTRICT IN WHICH THE OFFENSE WAS
COMMITTED, SUCH ACTION TO BE IN THE NAME OF THE PERSON INJURED, OR HIS
LEGAL REPRESENTATIVE, AND AGAINST SAID COUNTY, CITY, OR PARISH, AND IN
WHICH ACTION ANY OF THE PARTIES COMMITTING SUCH ACTS MAY BE JOINED AS
DEFENDANTS.  AND ANY PAYMENT OF ANY JUDGMENT, OR PART THEREOF
UNSATISFIED, RECOVERED BY THE PLAINTIFF IN SUCH ACTION, MAY, IF NOT
SATISFIED BY THE INDIVIDUAL DEFENDANT THEREIN WITHIN TWO MONTHS NEXT
AFTER THE RECOVERY OF SUCH JUDGMENT UPON EXECUTION DULY ISSUED AGAINST
SUCH INDIVIDUAL DEFENDANT IN SUCH JUDGMENT, AND RETURNED UNSATISFIED,
IN WHOLE OR IN PART, BE ENFORCED AGAINST SUCH COUNTY, CITY, OR PARISH,
BY EXECUTION, ATTACHMENT, MANDAMUS, GARNISHMENT, OR ANY OTHER
PROCEEDING IN AID OF EXECUTION OR APPLICABLE TO THE ENFORCEMENT OF
JUDGMENTS AGAINST MUNICIPAL CORPORATIONS; AND SUCH JUDGMENT SHALL BE A
LIEN AS WELL UPON ALL MONEYS IN THE TREASURY OF SUCH COUNTY, CITY, OR
PARISH, AS UPON THE OTHER PROPERTY THEREOF.  AND THE COURT IN ANY SUCH
ACTION MAY ON MOTION CAUSE ADDITIONAL PARTIES TO BE MADE THEREIN PRIOR
TO ISSUE JOINED, TO THE END THAT JUSTICE MAY BE DONE.  AND THE SAID
COUNTY, CITY, OR PARISH MAY RECOVER THE FULL AMOUNT OF SUCH JUDGMENT,
BY IT PAID, WITH COSTS AND INTEREST, FROM ANY PERSON OR PERSONS ENGAGED
AS PRINCIPAL OR ACCESSORY IN SUCH RIOT, IN AN ACTION IN ANY COURT OF
COMPETENT JURISDICTION.   AND SUCH COUNTY, CITY, OR PARISH, SO PAYING,
SHALL ALSO BE SUBROGATED TO ALL THE PLAINTIFF'S RIGHTS UNDER SUCH
JUDGMENT."  ID., 749. 

FN42  CONG. GLOBE, 42D CONG., 1ST SESS. 800-801. 

FN43  ID., 804. 

FN44  ID., 804. 

FN45  IBID. 

FN46  SEE ESPECIALLY THE COMMENTS OF SENATOR SHERMAN.  ID., 820-821. 

FN47  THIS ACT HAS BEEN DESCRIBED AS AN INSTANCE WHERE "CONGRESS
SUPPLIES ITS OWN DICTIONARY."  FRANKFURTER, SOME REFLECTIONS ON THE
READING OF STATUTES, 47 COL. L. REV. 527, 536.  THE PRESENT CODE
PROVISION DEFINING "PERSON" (1 U.S.C. SEC. 1) DOES NOT IN TERMS APPLY
TO BODIES POLITIC.  SEE REVISER'S NOTE, VOL. I, REV. U.S. STATS. 1872,
P. 19. 

FN48  SEE NOTE, 100 U. OF PA. L. REV. 1182, 1206-1212. 

FN49  SEE FOOTE, TORT REMEDIES FOR POLICE VIOLATIONS OF INDIVIDUAL
RIGHTS, 39 MINN. L. REV. 493, 514.  CF. FULLER & CASNER, MUNICIPAL TORT
LIABILITY IN OPERATION, 54 HARV. L. REV.  437, 459. 

FN50  THIS HAS BEEN THE VIEW OF THE LOWER FEDERAL COURTS.  CHARLTON
V. CITY OF HIALEAH, 188 F.2D 421, 423; HEWITT V. CITY OF JACKSONVILLE,
188 F.2D 423, 424; COBB V. CITY OF MALDEN, 202 F.2D 701, 703; AGNEW V.
CITY OF COMPTON, 239 F.2D 226, 230; CUIKSA V. CITY OF MANSFIELD, 250
F.2D 700, 703-704.  IN A FEW CASES IN WHICH EQUITABLE RELIEF HAS BEEN
SOUGHT, A MUNICIPALITY HAS BEEN NAMED, ALONG WITH CITY OFFICIALS, AS
DEFENDANT WHERE VIOLATIONS OF 42 U.S.C. SEC. 1983 WERE ALLEGED.  SEE,
E.G., DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157; HOLMES V. CITY OF
ATLANTA, 350 U.S. 879.  THE QUESTION DEALT WITH IN OUR OPINION WAS NOT
RAISED IN THOSE CASES, EITHER BY THE PARTIES OR BY THE COURT.  SINCE WE
HOLD THAT A MUNICIPAL CORPORATION IS NOT A "PERSON" WITHIN THE MEANING
OF SEC. 1983, NO INFERENCE TO THE CONTRARY CAN ANY LONGER BE DRAWN FROM
THOSE CASES. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

WERE THIS CASE HERE AS ONE OF FIRST IMPRESSION, I WOULD FIND THE
"UNDER COLOR OF ANY STATUTE" ISSUE VERY CLOSE INDEED.  HOWEVER, IN
CLASSIC (FN1) AND SCREWS (FN2) THIS COURT CONSIDERED A SUBSTANTIALLY
IDENTICAL STATUTORY PHRASE TO HAVE A MEANING WHICH, UNLESS WE NOW
RETREAT FROM IT, REQUIRES THAT ISSUE TO GO FOR THE PETITIONERS HERE. 

FROM MY POINT OF VIEW, THE POLICY OF STARE DECISIS, AS IT SHOULD BE
APPLIED IN MATTERS OF STATUTORY CONSTRUCTION, AND, TO A LESSER EXTENT,
THE INDICATIONS OF CONGRESSIONAL ACCEPTANCE OF THIS COURT'S EARLIER
INTERPRETATION, REQUIRE THAT IT APPEAR BEYOND DOUBT FROM THE
LEGISLATIVE HISTORY OF THE 1871 STATUTE THAT CLASSIC AND SCREWS
MISAPPREHENDED THE MEANING OF THE CONTROLLING PROVISION, (FN3) BEFORE A
DEPARTURE FROM WHAT WAS DECIDED IN THOSE CASES WOULD BE JUSTIFIED. 
SINCE I CAN FIND NO SUCH JUSTIFYING INDICATION IN THAT LEGISLATIVE
HISTORY, I JOIN THE OPINION OF THE COURT.  HOWEVER, WHAT HAS BEEN
WRITTEN ON BOTH SIDES OF THE MATTER MAKES SOME ADDITIONAL OBSERVATIONS
APPROPRIATE. 

THOSE ASPECTS OF CONGRESS' PURPOSE WHICH ARE QUITE CLEAR IN THE
EARLIER CONGRESSIONAL DEBATES, AS QUOTED BY MY BROTHERS DOUGLAS AND
FRANKFURTER IN TURN, SEEM TO ME TO BE INHERENTLY AMBIGUOUS WHEN APPLIED
TO THE CASE OF AN ISOLATED ABUSE OF STATE AUTHORITY BY AN OFFICIAL. 
ONE CAN AGREE WITH THE COURT'S OPINION THAT: 

"IT IS ABUNDANTLY CLEAR THAT ONE REASON THE LEGISLATION WAS PASSED
WAS TO AFFORD A FEDERAL RIGHT IN FEDERAL COURTS BECAUSE, BY REASON OF
PREJUDICE, PASSION, NEGLECT, INTOLERANCE OR OTHERWISE, STATE LAWS MIGHT
NOT BE ENFORCED AND THE CLAIMS OF CITIZENS TO THE ENJOYMENT OF RIGHTS,
PRIVILEGES, AND IMMUNITIES GUARANTEED BY THE FOURTEENTH AMENDMENT MIGHT
BE DENIED BY THE STATE AGENCIES  ...  ." 

WITHOUT BEING CERTAIN THAT CONGRESS MEANT TO DEAL WITH ANYTHING OTHER
THAN ABUSES SO RECURRENT AS TO AMOUNT TO "CUSTOM, OR USAGE."  ONE CAN
AGREE WITH MY BROTHER FRANKFURTER, IN DISSENT, THAT CONGRESS HAD NO
INTENTION OF TAKING OVER THE WHOLE FIELD OF ORDINARY STATE TORTS AND
CRIMES, WITHOUT BEING CERTAIN THAT THE ENACTING CONGRESS WOULD NOT HAVE
REGARDED ACTIONS BY AN OFFICIAL, MADE POSSIBLE BY HIS POSITION, AS FAR
MORE SERIOUS THAN AN ORDINARY STATE TORT, AND THEREFORE AS A MATTER OF
FEDERAL CONCERN.  IF ATTENTION IS DIRECTED AT THE RARE SPECIFIC
REFERENCES TO ISOLATED ABUSES OF STATE AUTHORITY, ONE FINDS THEM
NEITHER SO CLEAR NOR SO DISPROPORTIONATELY DIVIDED BETWEEN FAVORING THE
POSITIONS OF THE MAJORITY OR THE DISSENT AS TO MAKE EITHER POSITION
SEEM PLAINLY CORRECT.  (FN4)

BESIDES THE INCONCLUSIVENESS I FIND IN THE LEGISLATIVE HISTORY, IT
SEEMS TO ME BY NO MEANS EVIDENT THAT A POSITION FAVORING DEPARTURE FROM
CLASSIC AND SCREWS FITS BETTER THAT WITH WHICH THE ENACTING CONGRESS
WAS CONCERNED THAN DOES THE POSITION THE COURT ADOPTED 20 YEARS AGO. 
THERE ARE APPARENT INCONGRUITIES IN THE VIEW OF THE DISSENT WHICH MAY
BE MORE EASILY RECONCILED IN TERMS OF THE EARLIER HOLDING IN CLASSIC. 

THE DISSENT CONSIDERS THAT THE "UNDER COLOR OF" PROVISION OF SEC.
1983 DISTINGUISHES BETWEEN UNCONSTITUTIONAL ACTIONS TAKEN WITHOUT STATE
AUTHORITY, WHICH ONLY THE STATE SHOULD REMEDY, AND UNCONSTITUTIONAL
ACTIONS AUTHORIZED BY THE STATE, WHICH THE FEDERAL ACT WAS TO REACH. 
IF SO, THEN THE CONTROLLING DIFFERENCE FOR THE ENACTING LEGISLATURE
MUST HAVE BEEN EITHER THAT THE STATE REMEDY WAS MORE ADEQUATE FOR
UNAUTHORIZED ACTIONS THAN FOR AUTHORIZED ONES OR THAT THERE WAS, IN
SOME SENSE, GREATER HARM FROM UNCONSTITUTIONAL ACTIONS AUTHORIZED BY
THE FULL PANOPLY OF STATE POWER AND APPROVAL THAN FROM UNCONSTITUTIONAL
ACTIONS NOT SO AUTHORIZED OR ACQUIESCED IN BY THE STATE.  I FIND LESS
THAN COMPELLING THE EVIDENCE THAT EITHER DISTINCTION WAS IMPORTANT TO
THAT CONGRESS. 

                                        I. 

IF THE STATE REMEDY WAS CONSIDERED ADEQUATE WHEN THE OFFICIAL'S
UNCONSTITUTIONAL ACT WAS UNAUTHORIZED, WHY SHOULD IT NOT BE THOUGHT
EQUALLY ADEQUATE WHEN THE UNCONSTITUTIONAL ACT WAS AUTHORIZED?  FOR IF
ONE THING IS VERY CLEAR IN THE LEGISLATIVE HISTORY, IT IS THAT THE
CONGRESS OF 1871 WAS WELL AWARE THAT NO ACTION REQUIRING STATE JUDICIAL
ENFORCEMENT COULD BE TAKEN IN VIOLATION OF THE FOURTEENTH AMENDMENT
WITHOUT THAT ENFORCEMENT BEING DECLARED VOID BY THIS COURT ON DIRECT
REVIEW FROM THE STATE COURTS.  AND PRESUMABLY IT MUST ALSO HAVE BEEN
UNDERSTOOD THAT THERE WOULD BE SUPREME COURT REVIEW OF THE DENIAL OF A
STATE DAMAGE REMEDY AGAINST AN OFFICIAL ON GROUNDS OF STATE
AUTHORIZATION OF THE UNCONSTITUTIONAL ACTION.  IT THEREFORE SEEMS TO ME
THAT THE SAME STATE REMEDIES WOULD, WITH ULTIMATE AID OF SUPREME COURT
REVIEW, FURNISH IDENTICAL RELIEF IN THE TWO SITUATIONS.  THIS IS THE
POINT SENATOR BLAIR MADE WHEN, HAVING STATED THAT THE OBJECT OF THE
FOURTEENTH AMENDMENT WAS TO PREVENT ANY DISCRIMINATION BY THE LAW OF
ANY STATE, HE ARGUED THAT: 

"THIS BEING FORBIDDEN BY THE CONSTITUTION OF THE UNITED STATES, AND
ALL THE JUDGES, STATE AND NATIONAL, BEING SWORN TO SUPPORT THE
CONSTITUTION OF THE UNITED STATES, AND THE SUPREME COURT OF THE UNITED
STATES HAVING POWER TO SUPERVISE AND CORRECT THE ACTION OF THE STATE
COURTS WHEN THEY VIOLATED THE CONSTITUTION OF THE UNITED STATES, THERE
COULD BE NO DANGER OF THE VIOLATION OF THE RIGHT OF CITIZENS UNDER
COLOR OF THE LAWS OF THE STATES."  CONG.  GLOBE, 42D CONG., 1ST SESS.,
AT APP. 231. 

SINCE THE SUGGESTED NARROW CONSTRUCTION OF SEC. 1983 PRESUPPOSES THAT
STATE MEASURES WERE ADEQUATE TO REMEDY UNAUTHORIZED DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS AND SINCE THE IDENTICAL STATE RELIEF COULD BE
OBTAINED FOR STATE-AUTHORIZED ACTS WITH THE AID OF SUPREME COURT
REVIEW, THIS NARROW CONSTRUCTION WOULD REDUCE THE STATUTE TO HAVING
MERELY A JURISDICTIONAL FUNCTION, SHIFTING THE LOAD OF FEDERAL
SUPERVISION FROM THE SUPREME COURT TO THE LOWER COURTS AND PROVIDING A
FEDERAL TRIBUNAL FOR FACT FINDINGS IN CASES INVOLVING AUTHORIZED
ACTION.  SUCH A FUNCTION COULD BE JUSTIFIED ON VARIOUS GROUNDS.  IT
COULD, FOR EXAMPLE, BE ARGUED THAT THE STATE COURTS WOULD BE LESS
WILLING TO FIND A CONSTITUTIONAL VIOLATION IN CASES INVOLVING
"AUTHORIZED ACTION" AND THAT THEREFORE THE VICTIM OF SUCH ACTION WOULD
BEAR A GREATER BURDEN IN THAT HE WOULD MORE LIKELY HAVE TO CARRY HIS
CASE TO THIS COURT, AND ONCE HERE, MIGHT BE BOUND BY UNFAVORABLE STATE
COURT FINDINGS.  BUT THE LEGISLATIVE DEBATES DO NOT DISCLOSE
CONGRESSIONAL CONCERN ABOUT THE BURDENS OF LITIGATION PLACED UPON THE
VICTIMS OF "AUTHORIZED" CONSTITUTIONAL VIOLATIONS CONTRASTED TO THE
VICTIMS OF UNAUTHORIZED VIOLATIONS.  NEITHER DID CONGRESS INDICATE AN
INTEREST IN RELIEVING THE BURDEN PLACED ON THIS COURT IN REVIEWING SUCH
CASES. 

THE STATUTE BECOMES MORE THAN A JURISDICTIONAL PROVISION ONLY IF ONE
ATTRIBUTES TO THE ENACTING LEGISLATURE THE VIEW THAT A DEPRIVATION OF A
CONSTITUTIONAL RIGHT IS SIGNIFICANTLY DIFFERENT FROM AND MORE SERIOUS
THAN A VIOLATION OF A STATE RIGHT AND THEREFORE DESERVES A DIFFERENT
REMEDY EVEN THOUGH THE SAME ACT MAY CONSTITUTE BOTH A STATE TORT AND
THE DEPRIVATION OF A CONSTITUTIONAL RIGHT.  THIS VIEW, BY NO MEANS
UNREALISTIC AS A COMMON-SENSE MATTER, (FN5) IS, I BELIEVE, MORE
CONSISTENT WITH THE FLAVOR OF THE LEGISLATIVE HISTORY THAN IS A VIEW
THAT THE PRIMARY PURPOSE OF THE STATUTE WAS TO GRANT A LOWER COURT
FORUM FOR FACT FINDINGS.  FOR EXAMPLE, THE TONE IS SURELY ONE OF
OVERFLOWING PROTECTION OF CONSTITUTIONAL RIGHTS, AND THERE IS NOT A
HINT OF CONCERN ABOUT THE ADMINISTRATIVE BURDEN ON THE SUPREME COURT,
WHEN SENATOR FRELINGHUYSEN SAYS: 

"AS TO THE CIVIL REMEDIES, FOR A VIOLATION OF THESE PRIVILEGES, WE
KNOW THAT WHEN THE COURTS OF A STATE VIOLATE THE PROVISIONS OF THE
CONSTITUTION OR THE LAW OF THE UNITED STATES THERE IS NOW RELIEF
AFFORDED BY A REVIEW IN THE FEDERAL COURTS.  AND SINCE THE 14TH
AMENDMENT FORBIDS ANY STATE FROM MAKING OR ENFORCING ANY LAW ABRIDGING
THESE PRIVILEGES AND IMMUNITIES, AS YOU CANNOT REACH THE LEGISLATURES,
THE INJURED PARTY SHOULD HAVE AN ORIGINAL ACTION IN OUR FEDERAL COURTS,
SO THAT BY INJUNCTION OR BY THE RECOVERY OF DAMAGES HE COULD HAVE
RELIEF AGAINST THE PARTY WHO UNDER COLOR OF SUCH LAW IS GUILTY OF
INFRINGING HIS RIGHTS.  AS TO THE CIVIL REMEDY NO ONE, I THINK, CAN
OBJECT."  ID., AT 501. 

AND SENATOR CARPENTER REFLECTED A SIMILAR BELIEF THAT THE PROTECTION
GRANTED BY THE STATUTE WAS TO BE VERY DIFFERENT FROM THE RELIEF
AVAILABLE ON REVIEW OF STATE PROCEEDINGS: 

"THE PROHIBITION IN THE OLD CONSTITUTION THAT NO STATE SHOULD PASS A
LAW IMPAIRING THE OBLIGATION OF CONTRACTS WAS A NEGATIVE PROHIBITION
LAID UPON THE STATE.  CONGRESS WAS NOT AUTHORIZED TO INTERFERE IN CASE
THE STATE VIOLATED THAT PROVISION.  IT IS TRUE THAT WHEN PRIVATE RIGHTS
WERE AFFECTED BY SUCH A STATE LAW, AND THAT WAS BROUGHT BEFORE THE
JUDICIARY, EITHER OF THE STATE OR NATION, IT WAS THE DUTY OF THE COURT
TO PRONOUNCE THE ACT VOID; BUT THERE THE MATTER ENDED.  UNDER THE
PRESENT CONSTITUTION, HOWEVER, IN REGARD TO THOSE RIGHTS WHICH ARE
SECURED BY THE FOURTEENTH AMENDMENT, THEY ARE NOT LEFT AS THE RIGHT OF
THE CITIZEN IN REGARD TO LAWS IMPAIRING THE OBLIGATION OF CONTRACTS WAS
LEFT, TO BE DISPOSED OF BY THE COURTS AS THE CASES SHOULD ARISE BETWEEN
MAN AND MAN, BUT CONGRESS IS CLOTHED WITH THE AFFIRMATIVE POWER AND
JURISDICTION TO CORRECT THE EVIL.    "I THINK THERE IS ONE OF THE
FUNDAMENTAL, ONE OF THE GREAT, THE TREMENDOUS REVOLUTIONS EFFECTED IN
OUR GOVERNMENT BY THAT ARTICLE OF THE CONSTITUTION.  IT GIVES CONGRESS
AFFIRMATIVE POWER TO PROTECT THE RIGHTS OF THE CITIZEN, WHEREAS BEFORE
NO SUCH RIGHT WAS GIVEN TO SAVE THE CITIZEN FROM THE VIOLATION OF ANY
OF HIS RIGHTS BY STATE LEGISLATURES, AND THE ONLY REMEDY WAS A JUDICIAL
ONE WHEN THE CASE AROSE."  ID., AT 577. 

IN MY VIEW, THESE CONSIDERATIONS PUT IN SERIOUS DOUBT THE CONCLUSION
THAT SEC. 1983 WAS LIMITED TO STATE-AUTHORIZED UNCONSTITUTIONAL ACTS,
ON THE PREMISE THAT STATE REMEDIES RESPECTING THEM WERE CONSIDERED LESS
ADEQUATE THAN THOSE AVAILABLE FOR UNAUTHORIZED ACTS. 

                                       II. 

I THINK THIS LIMITED INTERPRETATION OF SEC. 1983 FARES NO BETTER WHEN
VIEWED FROM THE OTHER POSSIBLE PREMISE FOR IT, NAMELY THAT STATE
APPROVED CONSTITUTIONAL DEPRIVATIONS WERE CONSIDERED MORE OFFENSIVE
THAN THOSE NOT SO APPROVED.  FOR ONE THING, THE ENACTING CONGRESS WAS
NOT UNAWARE OF THE FACT THAT THERE WAS A SUBSTANTIAL OVERLAP BETWEEN
THE PROTECTIONS GRANTED BY STATE CONSTITUTIONAL PROVISIONS AND THOSE
GRANTED BY THE FOURTEENTH AMENDMENT.  INDEED ONE OPPONENT OF THE BILL,
SENATOR TRUMBULL, WENT SO FAR AS TO STATE IN A DEBATE WITH SENATORS
CARPENTER AND EDMUNDS THAT HIS RESEARCH INDICATED A COMPLETE OVERLAP IN
EVERY STATE, AT LEAST AS TO THE PROTECTIONS OF THE DUE PROCESS CLAUSE. 
(FN6)  THUS, IN ONE VERY SIGNIFICANT SENSE, THERE WAS NO ULTIMATE STATE
APPROVAL OF A LARGE PORTION OF OTHERWISE AUTHORIZED ACTIONS DEPRIVING A
PERSON OF DUE-PROCESS RIGHTS.  I HESITATE TO ASSUME THAT THE PROPONENTS
OF THE PRESENT STATUTE, WHO REGARDED IT AS NECESSARY EVEN THOUGH THEY
KNEW THAT THE PROVISIONS OF THE FOURTEENTH AMENDMENT WERE SELF
EXECUTING, WOULD HAVE THOUGHT THE REMEDIES UNNECESSARY WHENEVER THERE
WERE SELF-EXECUTING PROVISIONS OF STATE CONSTITUTIONS ALSO FORBIDDING
WHAT THE FOURTEENTH AMENDMENT FORBIDS.  THE ONLY ALTERNATIVE IS TO
DISREGARD THE POSSIBILITY THAT A STATE COURT WOULD FIND THE ACTION
UNAUTHORIZED ON GROUNDS OF THE STATE CONSTITUTION.  BUT IF THE
DEFENDANT OFFICIAL IS DENIED THE RIGHT TO DEFEND IN THE FEDERAL COURT
UPON THE GROUND THAT A STATE COURT WOULD FIND HIS ACTION UNAUTHORIZED
IN THE LIGHT OF THE STATE CONSTITUTION, IT IS DIFFICULT TO CONTEND THAT
IT IS THE ADDED HARMFULNESS OF STATE APPROVAL THAT JUSTIFIES A
DIFFERENT REMEDY FOR AUTHORIZED THAN FOR UNAUTHORIZED ACTIONS OF STATE
OFFICERS.  MOREOVER, IF INDEED THE LEGISLATURE MEANT TO DISTINGUISH
BETWEEN AUTHORIZED AND UNAUTHORIZED ACTS AND YET DID NOT MEAN THE
STATUTE TO BE INAPPLICABLE WHENEVER THERE WAS A STATE CONSTITUTIONAL
PROVISION WHICH, REASONABLY INTERPRETED, GAVE PROTECTION SIMILAR TO
THAT OF A PROVISION OF THE FOURTEENTH AMENDMENT, WOULD THERE NOT HAVE
BEEN SOME EXPLANATION OF THIS EXCEPTION TO THE GENERAL RULE?  THE FACT
THAT THERE IS NONE IN THE LEGISLATIVE HISTORY AT LEAST MAKES MORE
DIFFICULT A CONTENTION THAT THESE LEGISLATORS WERE IN FACT MAKING A
DISTINCTION BETWEEN USE AND MISUSE OF STATE POWER. 

THERE IS A FURTHER BASIS FOR DOUBT THAT IT WAS THE ADDITIONAL FORCE
OF STATE APPROVAL WHICH JUSTIFIED A DISTINCTION BETWEEN AUTHORIZED AND
UNAUTHORIZED ACTIONS.  NO ONE SUGGESTS THAT THERE IS A DIFFERENCE IN
THE SHOWING THE PLAINTIFF MUST MAKE TO ASSERT A CLAIM UNDER SEC. 1983
DEPENDING UPON WHETHER HE IS ASSERTING A DENIAL OF RIGHTS SECURED BY
THE EQUAL PROTECTION CLAUSE OR A DENIAL OF RIGHTS SECURED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IF THE SAME CONGRESS WHICH
PASSED WHAT IS NOW SEC. 1983 ALSO PROVIDED REMEDIES AGAINST TWO OR MORE
NON-OFFICIALS WHO CONSPIRE TO PREVENT AN OFFICIAL FROM GRANTING EQUAL
PROTECTION OF THE LAWS, SEE 42 U.S.C. SEC. 1985, THEN IT WOULD SEEM
ALMOST UNTENABLE TO INSIST THAT THIS CONGRESS WOULD HAVE HESITATED, ON
THE GROUNDS OF LACK OF FULL STATE APPROVAL OF THE OFFICIAL'S ACT, TO
PROVIDE SIMILAR REMEDIES AGAINST AN OFFICIAL WHO, UNAUTHORIZED, DENIED
THAT EQUAL PROTECTION OF THE LAWS ON HIS OWN INITIATIVE.  FOR THERE
WOULD BE NO LIKELY STATE APPROVAL OF OR EVEN ACQUIESCENCE IN A
CONSPIRACY TO COERCE A STATE OFFICIAL TO DENY EQUAL PROTECTION.  INDEED
IT IS DIFFICULT TO ATTRIBUTE TO A CONGRESS WHICH FORBAD TWO PRIVATE
CITIZENS FROM HINDERING AN OFFICIAL'S GIVING OF EQUAL PROTECTION AN
INTENT TO LEAVE THAT OFFICIAL FREE TO DENY EQUAL PROTECTION OF HIS OWN
ACCORD.  (FN7) 

WE HAVE NOT PASSED UPON THE QUESTION WHETHER 42 U.S.C. SEC. 1985,
(FN8) WHICH WAS PASSED AS THE SECOND SECTION OF THE ACT THAT INCLUDED
SEC. 1983, WAS INTENDED TO REACH ONLY THE KU KLUX KLAN OR OTHER
SUBSTANTIALLY ORGANIZED GROUP ACTIVITY, AS DISTINGUISHED FROM WHAT ITS
WORDS SEEM TO INCLUDE, ANY CONSPIRACY OF TWO PERSONS WITH "THE PURPOSE
OF PREVENTING OR HINDERING THE CONSTITUTED AUTHORITIES OF ANY STATE
...  FROM GIVING OR SECURING TO ALL PERSONS WITHIN SUCH STATE  ...  THE
EQUAL PROTECTION OF THE LAWS  ...  ."  (FN9)  WITHOUT NOW DECIDING THE
QUESTION, I THINK IT IS SUFFICIENT TO NOTE THAT THE LEGISLATIVE HISTORY
IS NOT WITHOUT INDICATIONS THAT WHAT THE WORDS OF THE STATUTE SEEM TO
STATE WAS IN FACT THE MEANING ASSUMED BY CONGRESS.  (FN10) 

THESE DIFFICULTIES IN EXPLAINING THE BASIS OF A DISTINCTION BETWEEN
AUTHORIZED AND UNAUTHORIZED DEPRIVATIONS OF CONSTITUTIONAL RIGHTS
FORTIFY MY VIEW THAT THE LEGISLATIVE HISTORY DOES NOT BEAR THE BURDEN
WHICH STARE DECISIS CASTS UPON IT.  FOR THIS REASON AND FOR THOSE
STATED IN THE OPINION OF THE COURT, I AGREE THAT WE SHOULD NOT NOW
DEPART FROM THE HOLDINGS OF THE CLASSIC AND SCREWS CASES. 

FN1  313 U.S. 299. 

FN2  325 U.S. 91. 

FN3  THE PROVISION IS NOW FOUND IN 42 U.S.C. SEC. 1983:  "EVERY
PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION, CUSTOM,
OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICTION THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS." 

FN4  COMPARE CONG. GLOBE, 42D CONG., 1ST SESS. 504 (SENATOR PRATT),
AND ID., AT APP. 50 (REP. KERR), WITH CONG. GLOBE, 41ST CONG., 2D SESS.
3663 (SENATOR SHERMAN), CONG. GLOBE, 42D CONG., 1ST SESS. 697 (SENATOR
EDMUNDS), ID., AT APP. 68 (REP. SHELLABARGER), AND CONG.  GLOBE, 39TH
CONG., 1ST SESS. 1758 (SENATOR TRUMBULL). 

FN5  THERE WILL BE MANY CASES IN WHICH THE RELIEF PROVIDED BY THE
STATE TO THE VICTIM OF A USE OF STATE POWER WHICH THE STATE EITHER DID
NOT OR COULD NOT CONSTITUTIONALLY AUTHORIZE WILL BE FAR LESS THAN WHAT
CONGRESS MAY HAVE THOUGHT WOULD BE FAIR REIMBURSEMENT FOR DEPRIVATION
OF A CONSTITUTIONAL RIGHT.  I WILL VENTURE ONLY A FEW EXAMPLES.  THERE
MAY BE NO DAMAGE REMEDY FOR THE LOSS OF VOTING RIGHTS OR FOR THE HARM
FROM PSYCHOLOGICAL COERCION LEADING TO A CONFESSION.  AND WHAT IS THE
DOLLAR VALUE OF THE RIGHT TO GO TO UNSEGREGATED SCHOOLS?  EVEN THE
REMEDY FOR SUCH AN UNAUTHORIZED SEARCH AND SEIZURE AS MONROE WAS
ALLEGEDLY SUBJECTED TO MAY BE ONLY THE NOMINAL AMOUNT OF DAMAGES TO
PHYSICAL PROPERTY ALLOWABLE IN AN ACTION FOR TRESPASS TO LAND.  IT
WOULD INDEED BE THE PUREST COINCIDENCE IF THE STATE REMEDIES FOR
VIOLATIONS OF COMMON-LAW RIGHTS BY PRIVATE CITIZENS WERE FULLY
APPROPRIATE TO REDRESS THOSE INJURIES WHICH ONLY A STATE OFFICIAL CAN
CAUSE AND AGAINST WHICH THE CONSTITUTION PROVIDES PROTECTION. 

FN6  ID., AT 577. 

FN7  COMPARE THE STATEMENT OF REPRESENTATIVE BURCHARD: 

"IF THE REFUSAL OF A STATE OFFICER, ACTING FOR THE STATE, TO ACCORD
EQUALITY OF CIVIL RIGHTS RENDERS HIM AMENABLE TO PUNISHMENT FOR THE
OFFENSE UNDER UNITED STATES LAW, CONSPIRATORS WHO ATTEMPT TO PREVENT
SUCH OFFICERS FROM PERFORMING SUCH DUTY ARE ALSO CLEARLY LIABLE." 
CONG.  GLOBE, 42D CONG., 1ST SESS., APP. 315. 

FN8  SECTION 2 AS FINALLY ADOPTED WAS SUBSTANTIALLY AS NOW PROVIDED
IN 42 U.S.C. SEC. 1985: "IF TWO OR MORE PERSONS IN ANY STATE ...
CONSPIRE  ...  FOR THE PURPOSE OF DEPRIVING, EITHER DIRECTLY OR
INDIRECTLY, ANY PERSON OR CLASS OF PERSONS OF THE EQUAL PROTECTION OF
THE LAWS, OR OF EQUAL PRIVILEGES AND IMMUNITIES UNDER THE LAWS; OR FOR
THE PURPOSE OF PREVENTING OR HINDERING THE CONSTITUTED AUTHORITIES OF
ANY STATE  ...  FROM GIVING OR SECURING TO ALL PERSONS WITHIN SUCH
STATE ...  THE EQUAL PROTECTION OF THE LAWS; (AND) IF ONE OR MORE
PERSONS ENGAGED THEREIN DO, OR CAUSE TO BE DONE, ANY ACT IN FURTHERANCE
OF THE OBJECT OF SUCH CONSPIRACY, WHEREBY ANOTHER IS INJURED IN HIS
PERSON OR PROPERTY, OR DEPRIVED OF HAVING AND EXERCISING ANY RIGHT OR
PRIVILEGE OF A CITIZEN OF THE UNITED STATES, THE PARTY SO INJURED OR
DEPRIVED MAY HAVE AN ACTION FOR THE RECOVERY OF DAMAGES, OCCASIONED BY
SUCH INJURY OR DEPRIVATION, AGAINST ANY ONE OR MORE OF THE
CONSPIRATORS." 

FN9  I DO NOT THINK THAT THIS COURT'S DECISION IN COLLINS V.
HARDYMAN, 341 U.S. 651, CAN PROPERLY BE VIEWED AS DETERMINING THE SCOPE
OF THE PROVISION OF SEC. 1985 WHICH REFERS TO CONSPIRING "FOR THE
PURPOSE OF PREVENTING  ...  THE CONSTITUTED AUTHORITIES OF ANY STATE
...  FROM GIVING  ...  THE EQUAL PROTECTION OF THE LAWS  ...  ."  NOT
ONLY DID THE COURT SPECIFICALLY DISCLAIM ANY CONSIDERATION OF THIS
PROVISION, BUT IT PROCEEDED TO EMPHASIZE THAT THE PETITIONERS THEREIN
HAD ONLY BEEN SUBJECTED TO A PRIVATE DISCRIMINATION SINCE "THERE IS NOT
THE SLIGHTEST ALLEGATION THAT DEFENDANTS WERE CONSCIOUS OF OR TRYING TO
INFLUENCE THE LAW, OR WERE ENDEAVORING TO OBSTRUCT OR INTERFERE WITH
IT."  341 U.S., AT 661.  THE HOLDING THAT THE EQUAL PROTECTION OF THE
LAW IS UNAFFECTED BY DISCRIMINATORILY MOTIVATED VIOLATIONS OF STATE LAW
SO LONG AS THE INSTRUMENTALITIES OF LAW ENFORCEMENT REMAIN FREE, ABLE,
AND WILLING TO REMEDY THESE VIOLATIONS IS CLEARLY BASED UPON PREMISES
WHICH CANNOT CONTROL THE QUITE DISSIMILAR CASE OF A CONSPIRATORIAL
ATTEMPT TO AFFECT THE FAIRNESS OF THESE INSTRUMENTALITIES, "THE
CONSTITUTED AUTHORITIES OF ANY STATE." 

FN10  REPRESENTATIVE POLAND, WHO HAD DOUBTED THE CONSTITUTIONALITY OF
THE EARLIER FORMS OF SEC. 2, HAD NO SUCH DOUBTS ABOUT ITS PRESENT
FORM.  HIS READING OF THE PROVISION IS CLEAR FROM HIS DEFENSE OF IT: 

"BUT I DO AGREE THAT IF A STATE SHALL DENY THE EQUAL PROTECTION OF
THE LAWS, OR IF A STATE MAKE PROPER LAWS AND HAVE PROPER OFFICERS TO
ENFORCE THOSE LAWS, AND SOMEBODY UNDERTAKES TO STEP IN AND CLOG JUSTICE
BY PREVENTING THE STATE AUTHORITIES FROM CARRYING OUT THIS
CONSTITUTIONAL PROVISION, THEN I DO CLAIM THAT WE HAVE THE RIGHT TO
MAKE SUCH INTERFERENCE AN OFFENSE AGAINST THE UNITED STATES; THAT THE
CONSTITUTION DOES EMPOWER US TO AID IN CARRYING OUT THIS INJUNCTION,
WHICH, BY THE CONSTITUTION, WE HAVE LAID UPON THE STATES, THAT THEY
SHALL AFFORD THE EQUAL PROTECTION OF THE LAWS TO ALL THEIR CITIZENS. 
WHEN THE STATE HAS PROVIDED THE LAW, AND HAS PROVIDED THE OFFICER TO
CARRY OUT THE LAW, THEN WE HAVE THE RIGHT TO SAY THAT ANYBODY WHO
UNDERTAKES TO INTERFERE AND PREVENT THE EXECUTION OF THAT STATE LAW IS
AMENABLE TO THIS PROVISION OF THE CONSTITUTION, AND TO THE LAW THAT WE
MAY MAKE UNDER IT DECLARING IT TO BE AN OFFENSE AGAINST THE UNITED
STATES."  ID., AT 514. 

AN OPPONENT OF THE PROVISION WAS, IF ANYTHING, EVEN CLEARER IN
EXPRESSING HIS UNDERSTANDING OF THE COVERAGE OF THE PROVISION: 

"  ...  IT DOES NOT REQUIRE THAT THE COMBINATION SHALL BE ONE THAT
THE STATE CANNOT PUT DOWN; IT DOES NOT REQUIRE THAT IT SHALL AMOUNT TO
ANYTHING LIKE INSURRECTION.  IF THREE PERSONS COMBINE FOR THE PURPOSE
OF PREVENTING OR HINDERING THE CONSTITUTED AUTHORITIES OF ANY STATE
FROM EXTENDING TO ALL PERSONS THE EQUAL PROTECTION OF THE LAWS,
ALTHOUGH THOSE PERSONS MAY BE TAKEN BY THE FIRST SHERIFF WHO CAN CATCH
THEM OR THE FIRST CONSTABLE, ALTHOUGH EVERY CITIZEN IN THE COUNTRY MAY
BE READY TO AID AS A POSSE, YET THIS STATUTE APPLIES.  IT IS NO CASE OF
DOMESTIC VIOLENCE, NO CASE OF INSURRECTION, AND NO CASE, THEREFORE, FOR
THE INTERFERENCE OF THE FEDERAL GOVERNMENT, MUCH LESS ITS INTERFERENCE
WHERE THERE IS NO CALL MADE UPON IT BY THE GOVERNOR OR THE LEGISLATURE
OF THE STATE."  ID., AT APP. 218 (SENATOR THURMAN); SEE ALSO ID., AT
514 (REP. FARNSWORTH). 

MR. JUSTICE FRANKFURTER, DISSENTING EXCEPT INSOFAR AS THE COURT HOLDS
THAT THIS ACTION CANNOT BE MAINTAINED AGAINST THE CITY OF CHICAGO. 

ABSTRACTLY STATED, THIS CASE CONCERNS A MATTER OF STATUTORY
CONSTRUCTION.  SO STATED, THE PROBLEM BEFORE THE COURT IS DENUDED OF
ILLUMINATING CONCRETENESS AND THEREBY OF ITS FAR-REACHING SIGNIFICANCE
FOR OUR FEDERAL SYSTEM.  AGAIN ABSTRACTLY STATED, THIS MATTER OF
STATUTORY CONSTRUCTION IS ONE UPON WHICH THE COURT HAS ALREADY PASSED. 
BUT IT HAS DONE SO UNDER CIRCUMSTANCES AND IN SETTINGS THAT NEGATIVE
THOSE CONSIDERATIONS OF SOCIAL POLICY UPON WHICH THE DOCTRINE OF STARE
DECISIS, CALLING FOR THE CONTROLLING APPLICATION OF PRIOR STATUTORY
CONSTRUCTION, RESTS. 

THIS CASE PRESENTS THE QUESTION OF THE SUFFICIENCY OF PETITIONERS'
COMPLAINT IN A CIVIL ACTION FOR DAMAGES BROUGHT UNDER THE CIVIL RIGHTS
ACT, R.S. SEC. 1979, 42 U.S.C. SEC.  1983.  (FN1)  THE COMPLAINT
ALLEGES THAT ON OCTOBER 29, 1958, AT 5:45 A.M., THIRTEEN CHICAGO POLICE
OFFICERS, LED BY DEPUTY CHIEF OF DETECTIVES PAPE, BROKE THROUGH TWO
DOORS OF THE MONROE APARTMENT, WOKE THE MONROE COUPLE WITH FLASHLIGHTS,
AND FORCED THEM AT GUNPOINT TO LEAVE THEIR BED AND STAND NAKED IN THE
CENTER OF THE LIVING ROOM; THAT THE OFFICERS ROUSED THE SIX MONROE
CHILDREN AND HERDED THEM INTO THE LIVING ROOM; THAT DETECTIVE PAPE
STRUCK MR. MONROE SEVERAL TIMES WITH HIS FLASHLIGHT, CALLING HIM
"NIGGER" AND "BLACK BOY"; THAT ANOTHER OFFICER PUSHED MRS. MONROE; THAT
OTHER OFFICERS HIT AND KICKED SEVERAL OF THE CHILDREN AND PUSHED THEM
TO THE FLOOR; THAT THE POLICE RANSACKED EVERY ROOM, THROWING CLOTHING
FROM CLOSETS TO THE FLOOR, DUMPING DRAWERS, RIPPING MATTRESS COVERS;
THAT MR. MONROE WAS THEN TAKEN TO THE POLICE STATION AND DETAINED ON
"OPEN" CHARGES FOR TEN HOURS, DURING WHICH TIME HE WAS INTERROGATED
ABOUT A MURDER (FN2) AND EXHIBITED IN LINEUPS; THAT HE WAS NOT BROUGHT
BEFORE A MAGISTRATE, ALTHOUGH NUMEROUS MAGISTRATE'S COURTS WERE
ACCESSIBLE; THAT HE WAS NOT ADVISED OF HIS PROCEDURAL RIGHTS; THAT HE
WAS NOT PERMITTED TO CALL HIS FAMILY OR AN ATTORNEY; THAT HE WAS
SUBSEQUENTLY RELEASED WITHOUT CRIMINAL CHARGES HAVING BEEN FILED
AGAINST HIM.  IT IS ALSO ALLEGED THAT THE ACTIONS OF THE OFFICERS
THROUGHOUT WERE WITHOUT AUTHORITY OF A SEARCH WARRANT OR AN ARREST
WARRANT; THAT THOSE ACTIONS CONSTITUTED ARBITRARY AND UNREASONABLE
CONDUCT; THAT THE OFFICERS WERE EMPLOYEES OF THE CITY OF CHICAGO, WHICH
FURNISHED EACH OF THEM WITH A BADGE AND AN IDENTIFICATION CARD
DESIGNATING HIM AS A MEMBER OF THE POLICE DEPARTMENT; THAT THE OFFICERS
WERE AGENTS OF THE CITY, ACTING IN THE COURSE OF THEIR EMPLOYMENT AND
ENGAGED IN THE PERFORMANCE OF THEIR DUTIES; AND THAT IT IS THE CUSTOM
OF THE DEPARTMENT TO ARREST AND CONFINE INDIVIDUALS FOR PROLONGED
PERIODS ON "OPEN" CHARGES FOR INTERROGATION, WITH THE PURPOSE OF
INDUCING INCRIMINATING STATEMENTS, EXHIBITING ITS PRISONERS FOR
IDENTIFICATION, HOLDING THEM INCOMMUNICADO WHILE POLICE OFFICERS
INVESTIGATE THEIR ACTIVITIES, AND PUNISHING THEM BY IMPRISONMENT
WITHOUT JUDICIAL TRIAL.  ON THE BASIS OF THESE ALLEGATIONS VARIOUS
MEMBERS OF THE MONROE FAMILY SEEK DAMAGES AGAINST THE INDIVIDUAL POLICE
OFFICERS AND AGAINST THE CITY OF CHICAGO.  THE DISTRICT COURT DISMISSED
THE COMPLAINT FOR FAILURE TO STATE A CLAIM AND THE COURT OF APPEALS FOR
THE SEVENTH CIRCUIT AFFIRMED.  272 F.2D 365. 

PETITIONERS BASE THEIR CLAIM TO RELIEF IN THE FEDERAL COURTS ON WHAT
WAS ENACTED AS SEC. 1 OF THE "KU KLUX ACT" OF APRIL 20, 1871, "AN ACT
TO ENFORCE THE PROVISIONS OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES, AND FOR OTHER PURPOSES."  17 STAT.
13.  IT BECAME, WITH INSIGNIFICANT REPHRASING, SEC. 1979 OF THE REVISED
STATUTES.  AS NOW SET FORTH IN 42 U.S.C. SEC. 1983, IT IS, IN RELEVANT
PART, AS FOLLOWS: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, OF ANY STATE  ...  SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICTION THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS." 

IN INVOKING SEC. 1979 (THE OLD DESIGNATION WILL BE USED HEREAFTER),
PETITIONERS CONTEND THAT ITS PROTECTION OF "RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION" ENCOMPASSES WHAT "DUE PROCESS
OF LAW" AND "THE EQUAL PROTECTION OF THE LAWS" OF THE FOURTEENTH
AMENDMENT GUARANTEE AGAINST ACTION BY THE STATES.  IN THIS CONTENTION
THEY ARE SUPPORTED BOTH BY THE TITLE OF THE ACT OF 1871 AND BY ITS
LEGISLATIVE HISTORY.  SEE THE AUTHORITATIVE STATEMENT OF MR. EDMUNDS,
REPORTING THE BILL FROM THE SENATE COMMITTEE ON THE JUDICIARY, CONG.
GLOBE, 42D CONG., 1ST SESS. 568.  SEE ALSO ID., AT 332-334, APP. 83-85,
310.  IT IS TRUE THAT A RELATED PHRASE, "ANY RIGHT OR PRIVILEGE SECURED
... BY THE CONSTITUTION OR LAWS," IN SEC. 241 OF TITLE 18, U.S.C., WAS
SAID BY A PLURALITY OF THE COURT IN UNITED STATES V. WILLIAMS, 341 U.S.
70, TO COMPREHEND ONLY THE RIGHTS ARISING IMMEDIATELY FROM THE
RELATIONSHIP OF THE INDIVIDUAL TO THE CENTRAL GOVERNMENT.  AND SEE
UNITED STATES V. CRUIKSHANK, 92 U.S. 542.  (FN3)  BUT THIS CONSTRUCTION
WAS DEMANDED BY SEC. 241, WHICH PENALIZES CONSPIRACIES OF PRIVATE
INDIVIDUALS ACTING AS SUCH, WHILE SEC. 1979 APPLIES ONLY TO ACTION
TAKEN "UNDER COLOR OF ANY STATUTE," ETC.  DIFFERENT PROBLEMS OF
STATUTORY MEANING ARE PRESENTED BY TWO ENACTMENTS DERIVING FROM
DIFFERENT CONSTITUTIONAL SOURCES.  SEE THE CIVIL RIGHTS CASES, 109 U.S.
3.  COMPARE UNITED STATES V. WILLIAMS, SUPRA, WITH SCREWS V. UNITED
STATES, 325 U.S. 91.  IF PETITIONERS HAVE ALLEGED FACTS CONSTITUTING A
DEPRIVATION UNDER COLOR OF STATE AUTHORITY OF A RIGHT ASSURED THEM BY
THE FOURTEENTH AMENDMENT, THEY HAVE BROUGHT THEMSELVES WITHIN SEC.
1979.  DOUGLAS V. JEANNETTE, 319 U.S. 157; HAGUE V. C.I.O., 307 U.S.
496, 525-526 (OPINION OF STONE, J.).  (FN4)

TO BE SURE, SCREWS V. UNITED STATES, SUPRA, REQUIRES A FINDING OF
SPECIFIC INTENT IN ORDER TO SUSTAIN A CONVICTION UNDER THE COGNATE
PENAL PROVISIONS OF 18 U.S.C. SEC. 242 (FN5)  - "AN INTENT TO DEPRIVE A
PERSON OF A RIGHT WHICH HAS BEEN MADE SPECIFIC EITHER BY THE EXPRESS
TERMS OF THE CONSTITUTION OR LAWS OF THE UNITED STATES OR BY DECISIONS
INTERPRETING THEM."  325 U.S., AT 104.  PETITIONERS' COMPLAINT HERE
ALLEGES NO SUCH SPECIFIC INTENT.  BUT, FOR A NUMBER OF REASONS, THIS
REQUIREMENT OF SCREWS SHOULD NOT BE CARRIED OVER AND APPLIED TO CIVIL
ACTIONS UNDER SEC. 1979.  FIRST, THE WORD "WILLFULLY" IN 18 U.S.C. SEC.
242 FROM WHICH THE REQUIREMENT OF INTENT WAS DERIVED IN SCREWS DOES NOT
APPEAR IN SEC. 1979.  SECOND, SEC. 1979, BY THE VERY FACT THAT IT IS A
CIVIL PROVISION, INVITES TREATMENT DIFFERENT FROM THAT TO BE GIVEN ITS
CRIMINAL ANALOGUE.  THE CONSTITUTIONAL SCRUPLES CONCERNING VAGUENESS
WHICH WERE DEEMED TO COMPEL THE SCREWS CONSTRUCTION HAVE LESS FORCE IN
THE CONTEXT OF A CIVIL PROCEEDING, (FN6) AND SEC. 1979, INSOFAR AS IT
CREATES AN ACTION FOR DAMAGES, MUST BE READ IN LIGHT OF THE FAMILIAR
BASIS OF TORT LIABILITY THAT A MAN IS RESPONSIBLE FOR THE NATURAL
CONSEQUENCES OF HIS ACTS.  THIRD, EVEN IN THE CRIMINAL AREA, THE
SPECIFIC INTENT DEMANDED BY SCREWS HAS PROVED TO BE AN ABSTRACTION
SERVING THE PURPOSES OF A CONSTITUTIONAL NEED WITHOUT IMPRESSING ANY
ACTUAL RESTRICTIONS UPON THE NATURE OF THE CRIME WHICH THE JURY TRIES. 
THE SCREWS OPINION ITSELF SAID THAT "THE FACT THAT THE DEFENDANTS MAY
NOT HAVE BEEN THINKING IN CONSTITUTIONAL TERMS IS NOT MATERIAL WHERE
THEIR AIM WAS NOT TO ENFORCE LOCAL LAW BUT TO DEPRIVE A CITIZEN OF A
RIGHT AND THAT RIGHT WAS PROTECTED BY THE CONSTITUTION."  325 U.S., AT
106.  AND LOWER COURTS IN APPLYING THE STATUTE HAVE ALLOWED INFERENCE
OF THE REQUISITE SPECIFIC INTENT FROM EVIDENCE, IT WOULD APPEAR, OF
MALEVOLENCE ALONE.  (FN7)  BUT IF INTENT TO INFRINGE "SPECIFIC"
CONSTITUTIONAL RIGHTS COMES IN PRACTICE TO MEAN NO MORE THAN INTENT
WITHOUT JUSTIFICATION TO BRING ABOUT THE CIRCUMSTANCES WHICH INFRINGE
THOSE RIGHTS, THEN THE CONSEQUENCE OF INTRODUCING THE SPECIFIC INTENT
ISSUE INTO A LITIGATION IS, IN EFFECT, TO REQUIRE FICTIONAL PLEADING,
NEEDLESSLY BURDEN JURORS WITH ABSTRUSE INSTRUCTIONS, AND LESSEN THE
DEGREE OF CONTROL WHICH FEDERAL COURTS HAVE OVER JURY VAGARIES. 

IF THE COURTS ARE TO ENFORCE SEC. 1979, IT IS AN UNHAPPY FORM OF
JUDICIAL DISAPPROVAL TO SURROUND IT WITH DOCTRINES WHICH PARTIALLY AND
UNEQUALLY OBSTRUCT ITS OPERATION.  SPECIFIC INTENT IN THE CONTEXT OF
THE SECTION WOULD CAUSE SUCH EMBARRASSMENT WITHOUT COUNTERVAILING
JUSTIFICATION.  PETITIONERS' ALLEGATIONS THAT RESPONDENTS IN FACT DID
THE ACTS WHICH CONSTITUTED VIOLATIONS OF CONSTITUTIONAL RIGHTS ARE
SUFFICIENT. 

                          II. 

TO SHOW SUCH VIOLATIONS, PETITIONERS INVOKE PRIMARILY THE AMENDMENT'S
DUE PROCESS CLAUSE.  (FN8) THE ESSENCE OF THEIR CLAIM IS THAT THE
POLICE CONDUCT HERE ALLEGED OFFENDS THOSE REQUIREMENTS OF DECENCY AND
FAIRNESS WHICH, BECAUSE THEY ARE "IMPLICIT IN THE CONCEPT OF ORDERED
LIBERTY," ARE IMPOSED BY THE DUE PROCESS CLAUSE UPON THE STATES.  PALKO
V. CONNECTICUT, 302 U.S. 319, 325.  WHEN WE APPLY TO THEIR COMPLAINT
THAT STANDARD OF A "PRINCIPLE OF JUSTICE SO ROOTED IN THE TRADITIONS
AND CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS FUNDAMENTAL," (FN9)
WHICH HAS BEEN THE TOUCHSTONE FOR THIS COURT'S ENFORCEMENT OF DUE
PROCESS, (FN10) THE MERIT OF THIS CONSTITUTIONAL CLAIM IS EVIDENT.  THE
CONCEPTION EXPRESSED IN WOLF V. COLORADO, 338 U.S. 25, 27, THAT "THE
SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY INTRUSION BY THE POLICE
...  IS BASIC TO A FREE SOCIETY," WAS NOT AN INNOVATION OF WOLF.  THE
TENET THAT THERE EXISTS A REALM OF SANCTUARY SURROUNDING EVERY
INDIVIDUAL AND INFRANGIBLE, SAVE IN A VERY LIMITED CLASS OF
CIRCUMSTANCES, BY THE AGENTS OF GOVERNMENT, HAD INFORMED THE DECISION
OF THE KING'S BENCH TWO CENTURIES EARLIER IN ENTICK V. CARRINGTON, 2
WILS.  275, HAD BEEN THE BASIS OF OTIS' COTEMPORARY SPEECH AGAINST THE
WRIT OF ASSISTANCE, SEE GRAY'S NOTES IN QUINCY'S MASSACHUSETTS REPORTS,
APP. I, AT 471; TUDOR, LIFE OF JAMES OTIS (1823) 63, AND HAS IN THE
INTERVENING YEARS FOUND EXPRESSION NOT ONLY IN THE FOURTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES, BUT ALSO IN THE FUNDAMENTAL LAW
OF EVERY STATE.  (FN11)  MODERN TOTALITARIANISMS HAVE BEEN A STARK
REMINDER, BUT DID NOT NEWLY TEACH, THAT THE KICKED-IN DOOR IS THE
SYMBOL OF A RULE OF FEAR AND VIOLENCE FATAL TO INSTITUTIONS FOUNDED ON
RESPECT FOR THE INTEGRITY OF MAN. 

THE ESSENCE OF THE LIBERTY PROTECTED BY THE COMMON LAW AND BY THE
AMERICAN CONSTITUTIONS WAS "THE RIGHT TO SHUT THE DOOR ON OFFICIALS OF
THE STATE UNLESS THEIR ENTRY IS UNDER PROPER AUTHORITY OF LAW";
PARTICULARLY, "THE RIGHT TO RESIST UNAUTHORIZED ENTRY WHICH HAS AS ITS
DESIGN THE SECURING OF INFORMATION TO FORTIFY THE COERCIVE POWER OF THE
STATE AGAINST THE INDIVIDUAL."  FRANK V. MARYLAND, 359 U.S. 360, 365. 
(FN12)  SEARCHES OF THE DWELLING HOUSE WERE THE SPECIAL OBJECT OF THIS
UNIVERSAL CONDEMNATION OF OFFICIAL INTRUSION.  (FN13)  NIGHT-TIME
SEARCH WAS THE EVIL IN ITS MOST OBNOXIOUS FORM.  (FN14)  FEW REPORTED
CASES HAVE PRESENTED ALL OF THE MANIFOLD AGGRAVATING CIRCUMSTANCES
WHICH PETITIONERS HERE ALLEGE - INTRUSION EN MASSE, BY DARK, BY FORCE,
UNAUTHORIZED BY WARRANT, INTO AN OCCUPIED PRIVATE HOME, WITHOUT EVEN
THE ASSERTED JUSTIFICATION OF BELIEF BY THE INTRUDERS THAT THE
INHABITANTS WERE PRESENTLY COMMITTING SOME CRIMINAL ACT WITHIN;
PHYSICAL ABUSE AND THE CALCULATED DEGRADATION OF INSULT AND FORCED
NAKEDNESS; SACKING AND DISORDERING OF PERSONAL EFFECTS THROUGHOUT THE
HOME; ARREST AND DETENTION AGAINST THE BACKGROUND TERROR OF THREATENED
CRIMINAL PROCEEDINGS.  WHEREVER SIMILAR CONDUCT HAS APPEARED, THE
COURTS HAVE UNANIMOUSLY CONDEMNED POLICE ENTRIES AS LAWLESS.  (FN15) 

IF THE QUESTION WHETHER DUE PROCESS FORBIDS THIS KIND OF POLICE
INVASION WERE BEFORE US IN ISOLATION, THE ANSWER WOULD BE QUICK.  IF,
FOR EXAMPLE, PETITIONERS HAD SOUGHT DAMAGES IN THE COURTS OF ILLINOIS
AND IF THOSE COURTS HAD REFUSED REDRESS ON THE GROUND THAT THE OFFICIAL
CHARACTER OF THE RESPONDENTS CLOTHED THEM WITH CIVIL IMMUNITY, WE WOULD
BE FACED WITH THE SORT OF SITUATION TO WHICH THE LANGUAGE IN THE WOLF
OPINION WAS ADDRESSED:  "WE HAVE NO HESITATION IN SAYING THAT WERE A
STATE AFFIRMATIVELY TO SANCTION SUCH POLICE INCURSION INTO PRIVACY IT
WOULD RUN COUNTER TO THE GUARANTY OF THE FOURTEENTH AMENDMENT."  338
U.S., AT 28.  IF THAT ISSUE IS NOT REACHED IN THIS CASE IT IS NOT
BECAUSE THE CONDUCT WHICH THE RECORD HERE PRESENTS CAN BE CONDONED. 
BUT BY BRINGING THEIR ACTION IN A FEDERAL DISTRICT COURT PETITIONERS
CANNOT REST ON THE FOURTEENTH AMENDMENT SIMPLICITER.  THEY INVOKE THE
PROTECTION OF A SPECIFIC STATUTE BY WHICH CONGRESS RESTRICTED FEDERAL
JUDICIAL ENFORCEMENT OF ITS GUARANTEES TO PARTICULAR ENUMERATED
CIRCUMSTANCES.  THEY MUST SHOW NOT ONLY THAT THEIR CONSTITUTIONAL
RIGHTS HAVE BEEN INFRINGED, BUT THAT THEY HAVE BEEN INFRINGED "UNDER
COLOR OF (STATE) STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE," AS
THAT PHRASE IS USED IN THE RELEVANT CONGRESSIONAL ENACTMENT. 

                             III. 

OF COURSE, IF CONGRESS BY APPROPRIATE STATUTORY LANGUAGE ATTEMPTED TO
REACH EVERY ACT WHICH COULD BE ATTRIBUTED TO THE STATES UNDER THE
FOURTEENTH AMENDMENT'S PROHIBITION:  "NO STATE SHALL  ...  ," THE REACH
OF THE STATUTE WOULD BE THE REACH OF THE AMENDMENT ITSELF.  RELEVANT TO
THE ENFORCEMENT OF SUCH A STATUTE WOULD BE NOT ONLY THE CONCEPT OF
STATE ACTION AS THIS COURT HAS DEVELOPED IT, SEE NIXON V. CONDON, 286
U.S. 73, 89, BUT ALSO CONSIDERATIONS OF THE POWER OF CONGRESS, UNDER
THE AMENDMENT'S ENFORCEMENT CLAUSE, TO DETERMINE WHAT IS "APPROPRIATE
LEGISLATION" TO PROTECT THE RIGHTS WHICH THE FOURTEENTH AMENDMENT
SECURES.  CF. UNITED STATES V. RAINES, 362 U.S. 17.  STILL, IN THIS
SUPPOSED CASE WE WOULD ARRIVE AT THE QUESTION OF WHAT CONGRESS COULD DO
ONLY AFTER WE HAD DETERMINED WHAT IT WAS THAT CONGRESS HAD DONE.  SO,
IN THE CASE BEFORE US NOW, WE MUST ASK WHAT CONGRESS DID IN 1871.  WE
MUST DETERMINE WHAT CONGRESS MEANT BY "UNDER COLOR" OF ENUMERATED STATE
AUTHORITY.  (FN16)

CONGRESS USED THAT PHRASE NOT ONLY IN R.S. SEC. 1979, BUT ALSO IN THE
CRIMINAL PROVISIONS OF SEC. 2 OF THE FIRST CIVIL RIGHTS ACT OF APRIL 9,
1866, 14 STAT. 27, FROM WHICH IS DERIVED THE PRESENT 18 U.S.C. SEC.
242, (FN17) AND IN BOTH CASES USED IT WITH THE SAME PURPOSE.  (FN18)
DURING THE SEVENTY YEARS WHICH FOLLOWED THESE ENACTMENTS, CASES IN THIS
COURT IN WHICH THE "UNDER COLOR" PROVISIONS WERE INVOKED UNIFORMLY
INVOLVED ACTION TAKEN EITHER IN STRICT PURSUANCE OF SOME SPECIFIC
COMMAND OF STATE LAW (FN19) OR WITHIN THE SCOPE OF EXECUTIVE DISCRETION
IN THE ADMINISTRATION OF STATE LAWS.  (FN20)  THE SAME IS TRUE, WITH
TWO EXCEPTIONS, IN THE LOWER FEDERAL COURTS.  (FN21)  IN THE FIRST OF
THESE TWO CASES IT WAS HELD THAT SEC. 1979 WAS NOT DIRECTED TO
INSTANCES OF LAWLESS POLICE BRUTALITY, ALTHOUGH THE RULING WAS NOT PUT
ON "UNDER COLOR" GROUNDS.  (FN22)  IN THE SECOND, AN INDICTMENT
CHARGING A COUNTY TAX COLLECTOR WITH DEPRIVING ONE AH KOO OF A
FEDERALLY SECURED RIGHT UNDER COLOR OF A DESIGNATED CALIFORNIA LAW, SET
FORTH IN THE INDICTMENT, WAS HELD INSUFFICIENT AGAINST A DEMURRER. 
UNITED STATES V. JACKSON, 26 FED. CAS. 563, NO. 15,459 (C.C.D. CAL.
1874).  THE COURT WROTE:    "THE INDICTMENT CONTAINS NO AVERMENT THAT
AH KOO WAS A FOREIGN MINER, AND WITHIN THE PROVISIONS OF THE STATE
LAW.  IF THIS AVERMENT BE UNNECESSARY  ...  THE ACT OF CONGRESS WOULD
THEN BE HELD TO APPLY TO A CASE OF ILLEGAL EXTORTION BY A TAX COLLECTOR
FROM ANY PERSON, THOUGH SUCH EXACTION MIGHT BE WHOLLY UNAUTHORIZED BY
THE LAW UNDER WHICH THE OFFICER PRETENDED TO ACT. 

"WE ARE SATISFIED THAT IT WAS NOT THE DESIGN OF CONGRESS TO PREVENT
OR TO PUNISH SUCH ABUSE OF AUTHORITY BY STATE OFFICERS.  THE OBJECT OF
THE ACT WAS, NOT TO PREVENT ILLEGAL EXACTIONS, BUT TO FORBID THE
EXECUTION OF STATE LAWS, WHICH, BY THE ACT ITSELF, ARE MADE VOID  ...
. 

"IT WOULD SEEM, NECESSARILY, TO FOLLOW, THAT THE PERSON FROM WHOM THE
TAX WAS EXACTED MUST HAVE BEEN A PERSON FROM WHOM, UNDER THE PROVISIONS
OF THE STATE LAW, THE OFFICER WAS AUTHORIZED TO EXACT IT.  THE STATUTE
REQUIRES THAT A PARTY SHALL BE SUBJECTED TO A DEPRIVATION OF RIGHT
SECURED BY THE STATUTE UNDER COLOR OF SOME LAW, STATUTE, ORDER OR
CUSTOM; BUT IF THIS EXACTION, ALTHOUGH MADE BY A TAX COLLECTOR, HAS
BEEN LEVIED UPON A PERSON NOT WITHIN THE PROVISIONS OF THE STATE LAW,
THE EXACTION CANNOT BE SAID TO HAVE BEEN MADE 'UNDER COLOR OF LAW,' ANY
MORE THAN A SIMILAR EXACTION FROM A CHINESE MINER, MADE BY A PERSON
WHOLLY UNAUTHORIZED, AND UNDER THE PRETENSE OF BEING A TAX COLLECTOR." 
ID., AT 563-564. 

THROUGHOUT THIS PERIOD, THE ONLY INDICATION OF THIS COURT'S VIEWS ON
THE PROPER INTERPRETATION OF THE "UNDER COLOR" LANGUAGE IS A DICTUM IN
THE CIVIL RIGHTS CASES, 109 U.S. 3.  THERE, IN STRIKING DOWN OTHER
CIVIL RIGHTS ACT PROVISIONS WHICH, AS THE COURT REGARDED THEM,
ATTEMPTED TO REACH PRIVATE CONDUCT NOT ATTRIBUTABLE TO STATE AUTHORITY,
MR. JUSTICE BRADLEY CONTRASTED THOSE PROVISIONS WITH SEC. 2 OF THE ACT
OF 1866:  "THIS (LATTER) LAW IS CLEARLY CORRECTIVE IN ITS CHARACTER,
INTENDED TO COUNTERACT AND FURNISH REDRESS AGAINST STATE LAWS AND
PROCEEDINGS, AND CUSTOMS HAVING THE FORCE OF LAW, WHICH SANCTION THE
WRONGFUL ACTS SPECIFIED."  ID., AT 16. 

A SHARP CHANGE FROM THIS UNIFORM APPLICATION OF SEVENTY YEARS WAS
MADE IN 1941, BUT WITHOUT ACKNOWLEDGMENT OR INDICATION OF AWARENESS OF
THE REVOLUTIONARY TURNABOUT FROM WHAT HAD BEEN ESTABLISHED PRACTICE. 
THE OPINION IN UNITED STATES V. CLASSIC, 313 U.S. 299, ACCOMPLISHED
THIS.  THE CASE PRESENTED AN INDICTMENT UNDER SEC. 242 CHARGING CERTAIN
LOCAL COMMISSIONERS OF ELECTIONS WITH ALTERING BALLOTS CAST IN A
PRIMARY HELD TO NOMINATE CANDIDATES FOR CONGRESS.  SUSTAINING THE
SUFFICIENCY OF THE INDICTMENT IN AN EXTENSIVE OPINION CONCERNED
PRINCIPALLY WITH THE QUESTION WHETHER THE RIGHT TO VOTE IN SUCH A
PRIMARY WAS A RIGHT SECURED BY THE CONSTITUTION, (FN23) MR. JUSTICE
STONE WROTE THAT THE ALTERATION OF THE BALLOTS WAS "UNDER COLOR" OF
STATE LAW.  THIS HOLDING WAS SUMMARILY ANNOUNCED WITHOUT EXPOSITION; IT
HAD BEEN ONLY PASSINGLY ARGUED.  (FN24)  OF THE THREE AUTHORITIES CITED
TO SUPPORT IT, TWO DID NOT INVOLVE THE "UNDER COLOR" STATUTES, (FN25)
AND THE THIRD, HAGUE V. C.I.O., 307 U.S. 496, WAS A CASE IN WHICH
HIGHRANKING MUNICIPAL OFFICIALS CLAIMED AUTHORIZATION FOR THEIR ACTIONS
UNDER MUNICIPAL ORDINANCES (HERE HELD UNCONSTITUTIONAL) AND UNDER THE
GENERAL POLICE POWERS OF THE STATE.  (FN26)  ALL THREE OF THESE CASES
HAD DEALT WITH "STATE ACTION" PROBLEMS, AND IT IS "STATE ACTION," NOT
THE VERY DIFFERENT QUESTION OF THE "UNDER COLOR" CLAUSE, THAT MR.
JUSTICE STONE APPEARS TO HAVE CONSIDERED.  (FN27)  (I JOINED IN THIS
OPINION WITHOUT HAVING MADE AN INDEPENDENT EXAMINATION OF THE
LEGISLATIVE HISTORY OF THE RELEVANT LEGISLATION OR OF THE AUTHORITIES
DRAWN UPON FOR THE CLASSIC CONSTRUCTION.  ACQUIESCENCE SO FOUNDED DOES
NOT PRECLUDE THE RESPONSIBLE RECOGNITION OF ERROR DISCLOSED BY
SUBSEQUENT STUDY.)  WHEN, HOWEVER, FOUR YEARS LATER THE COURT WAS
CALLED ON TO REVIEW THE CONVICTION UNDER SEC. 242 OF A GEORGIA COUNTY
SHERIFF WHO HAD BEATEN A NEGRO PRISONER TO DEATH, THE OPINION OF FOUR
OF THE SIX JUSTICES WHO BELIEVED THAT THE STATUTE APPLIED MERELY
INVOKED CLASSIC AND STARE DECISIS AND DID NOT RECONSIDER THE MEANING
WHICH THAT CASE HAD UNCRITICALLY ASSUMED WAS TO BE ATTACHED TO THE
LANGUAGE, "UNDER COLOR" OF STATE AUTHORITY.  SCREWS V. UNITED STATES,
325 U.S. 91.  THE BRIEFS IN THE SCREWS CASE DID NOT EXAMINE CRITICALLY
THE LEGISLATIVE HISTORY OF THE CIVIL RIGHTS ACTS.  (FN28)  THE ONLY
REFERENCE TO THIS HISTORY IN THE PLURALITY OPINION, INSOFAR AS IT BEARS
ON THE INTERPRETATION OF THE CLAUSE "UNDER COLOR OF  ...  LAW," IS
CONTAINED IN A PAIR OF SENTENCES DISCOUNTING TWO STATEMENTS BY SENATORS
TRUMBULL AND SHERMAN REGARDING THE CIVIL RIGHTS ACTS OF 1866 AND 1870,
CITED BY THE MINORITY.  (FN29)  THE BULK OF THE PLURALITY OPINION'S
TREATMENT OF THE ISSUE CONSISTS OF THE ARGUMENT THAT "UNDER COLOR" HAD
BEEN CONSTRUED IN CLASSIC AND THAT THE CONSTRUCTION THERE PUT ON THE
WORDS SHOULD NOT BE ABANDONED OR REVISED.  325 U.S., AT 109-113.  THE
CASE OF WILLIAMS V. UNITED STATES, 341 U.S. 97, REAFFIRMED SCREWS AND
APPLIED IT TO CIRCUMSTANCES OF THIRD-DEGREE BRUTALITY PRACTICED BY A
PRIVATE DETECTIVE WHO HELD A SPECIAL POLICE OFFICER'S CARD AND WAS
ACCOMPANIED BY A REGULAR POLICEMAN.  (FN30) 

THUS, ALTHOUGH THIS COURT HAS THREE TIMES FOUND THAT CONDUCT OF STATE
OFFICIALS WHICH IS FORBIDDEN BY STATE LAW MAY BE "UNDER COLOR" OF STATE
LAW FOR PURPOSES OF THE CIVIL RIGHTS ACTS, IT IS ACCURATE TO SAY THAT
THAT QUESTION HAS NEVER RECEIVED HERE THE CONSIDERATION WHICH ITS
IMPORTANCE MERITS.  THAT REGARD FOR CONTROLLING LEGISLATIVE HISTORY
WHICH IS CONVENTIONALLY OBSERVED BY THIS COURT IN DETERMINING THE TRUE
MEANING OF IMPORTANT LEGISLATION THAT DOES NOT CONSTRUE ITSELF (FN31)
HAS NEVER BEEN APPLIED TO THE "UNDER COLOR" PROVISIONS; PARTICULARLY,
THERE HAS NEVER BEEN CANVASSED THE FULL RECORD OF THE DEBATES PRECEDING
PASSAGE OF THE 1871 ACT WITH WHICH WE ARE CONCERNED IN THIS CASE. 
NEITHER CLASSIC NOR SCREWS NOR WILLIAMS WARRANTS REFUSAL NOW TO TAKE
ACCOUNT OF THOSE DEBATES AND THE ILLUMINATION THEY AFFORD.  WHILE WE
MAY WELL DECLINE TO RE-EXAMINE RECENT CASES WHICH DERIVE FROM THE
JUDICIAL PROCESS EXERCISED UNDER ITS ADEQUATE SAFEGUARDS - DOCUMENTING
BRIEFS AND ADEQUATE ARGUMENTS ON BOTH SIDES AS FOUNDATION FOR DUE
DELIBERATION - THE RELEVANT DEMANDS OF STARE DECISIS DO NOT PRECLUDE
CONSIDERING, FOR THE FIRST TIME THOROUGHLY AND IN THE LIGHT OF THE BEST
AVAILABLE EVIDENCE OF CONGRESSIONAL PURPOSE, A STATUTORY INTERPRETATION
WHICH STARTED AS AN UNEXAMINED ASSUMPTION ON THE BASIS OF INAPPLICABLE
CITATIONS AND HAS THE CLAIM OF A DOGMA SOLELY THROUGH REITERATION. 
PARTICULARLY IS THIS SO WHEN THAT INTERPRETATION, ONLY RECENTLY MADE,
WAS AT ITS INCEPTION A SILENT REVERSAL OF THE JUDICIAL HISTORY OF THE
CIVIL RIGHTS ACTS FOR THREE QUARTERS OF A CENTURY. 

"THE RULE OF STARE DECISIS, THOUGH ONE TENDING TO CONSISTENCY AND
UNIFORMITY OF DECISION, IS NOT INFLEXIBLE."  HERTZ V. WOODMAN, 218 U.S.
205, 212.  IT IS TRUE, OF COURSE, THAT THE REASON FOR THE RULE IS MORE
COMPELLING IN CASES INVOLVING INFERIOR LAW, LAW CAPABLE OF CHANGE BY
CONGRESS, THAN IN CONSTITUTIONAL CASES, WHERE THIS COURT - ALTHOUGH
EVEN IN SUCH CASES A WISE CONSCIOUSNESS OF THE LIMITATIONS OF
INDIVIDUAL VISION HAS IMPELLED IT ALWAYS TO GIVE GREAT WEIGHT TO PRIOR
DECISIONS - NEVERTHELESS BEARS THE ULTIMATE OBLIGATION FOR THE
DEVELOPMENT OF THE LAW AS INSTITUTIONS DEVELOP.  SEE, E.G., SMITH V.
ALLWRIGHT, 321 U.S. 649.  BUT THE COURT HAS NOT ALWAYS DECLINED TO RE
EXAMINE CASES WHOSE OUTCOME CONGRESS MIGHT HAVE CHANGED.  SEE MR.
JUSTICE BRANDEIS, DISSENTING, IN BURNET V. CORONADO OIL & GAS CO., 285
U.S. 393, 406-407, N. 1.  DECISIONS INVOLVING STATUTORY CONSTRUCTION,
EVEN DECISIONS WHICH CONGRESS HAS PERSUASIVELY DECLINED TO OVERRULE,
HAVE BEEN OVERRULED HERE.  SEE GIROUARD V. UNITED STATES, 328 U.S. 61,
OVERRULING UNITED STATES V. SCHWIMMER, 279 U.S. 644, UNITED STATES V.
MACINTOSH, 283 U.S. 605, AND UNITED STATES V. BLAND, 283 U.S. 636; SEE
ALSO COMMISSIONER V. ESTATE OF CHURCH, 335 U.S. 632, OVERRULING MAY V.
HEINER, 281 U.S. 238. 

AND WITH REGARD TO THE CIVIL RIGHTS ACTS THERE ARE REASONS OF
PARTICULAR URGENCY WHICH AUTHORIZE THE COURT - INDEED, WHICH MAKE IT
THE COURT'S RESPONSIBILITY - TO REAPPRAISE IN THE HITHERTO SKIMPILY
CONSIDERED CONTEXT OF R.S. SEC. 1979 WHAT WAS DECIDED IN CLASSIC,
SCREWS AND WILLIAMS.  THIS IS NOT AN AREA OF COMMERCIAL LAW IN WHICH,
PRESUMABLY, INDIVIDUALS MAY HAVE ARRANGED THEIR AFFAIRS IN RELIANCE ON
THE EXPECTED STABILITY OF DECISION.  COMPARE NATIONAL BANK V. WHITNEY,
103 U.S. 99; VAIL V. ARIZONA, 207 U.S. 201; WALLING V. HALLIBURTON OIL
WELL CEMENTING CO., 331 U.S. 17; UNITED STATES V. SOUTH BUFFALO R. CO.,
333 U.S. 771.  NOR IS IT MERELY A MINE-RUN STATUTORY QUESTION INVOLVING
A NARROW COMPASS OF INDIVIDUAL RIGHTS AND DUTIES.  THE ISSUE IN THE
PRESENT CASE CONCERNS DIRECTLY A BASIC PROBLEM OF AMERICAN FEDERALISM:
THE RELATION OF THE NATION TO THE STATES IN THE CRITICALLY IMPORTANT
SPHERE OF MUNICIPAL LAW ADMINISTRATION.  IN THIS ASPECT, IT HAS
SIGNIFICANCE APPROXIMATING CONSTITUTIONAL DIMENSION.  NECESSARILY, THE
CONSTRUCTION OF THE CIVIL RIGHTS ACTS RAISES ISSUES FUNDAMENTAL TO OUR
INSTITUTIONS.  THIS IMPOSES ON THIS COURT A CORRESPONDING OBLIGATION TO
EXERCISE ITS POWER WITHIN THE FAIR LIMITS OF ITS JUDICIAL DISCRETION. 
"WE RECOGNIZE THAT STARE DECISIS EMBODIES AN IMPORTANT SOCIAL POLICY. 
IT REPRESENTS AN ELEMENT OF CONTINUITY IN LAW, AND IS ROOTED IN THE
PSYCHOLOGIC NEED TO SATISFY REASONABLE EXPECTATIONS.  BUT STARE DECISIS
IS PRINCIPLE OF POLICY AND NOT A MECHANICAL FORMULA OF ADHERENCE TO THE
LATEST DECISION, HOWEVER RECENT AND QUESTIONABLE  ...  ."  HELVERING V.
HALLOCK, 309 U.S. 106, 119. 

NOW, WHILE INVOKING THE PRIOR DECISIONS WHICH HAVE GIVEN "UNDER COLOR
OF (LAW)" A CONTENT THAT IGNORES THE MEANING FAIRLY COMPORTED BY THE
WORDS OF THE TEXT AND CONFIRMED BY THE LEGISLATIVE HISTORY, THE COURT
UNDERTAKES A FRESH EXAMINATION OF THAT LEGISLATIVE HISTORY.  THE
DECISION IN THIS CASE, THEREFORE, DOES NOT REST ON STARE DECISIS, AND
THE TRUE CONSTRUCTION OF THE STATUTE MAY BE THOUGHT TO BE AS FREE FROM
THE RESTRAINTS OF THAT DOCTRINE AS THOUGH THE MATTER WERE BEFORE US FOR
THE FIRST TIME.  CERTAINLY, NONE OF THE IMPLICATIONS WHICH THE COURT
SEEKS TO DRAW FROM SILENCES IN THE MINORITY REPORTS OF CONGRESSIONAL
COMMITTEES IN 1956, 1957, AND 1960, OR FROM THE USE OF "UNDER COLOR"
LANGUAGE IN THE VERY DIFFERENT CONTEXT OF THE ACT OF MAY 6, 1960, 74
STAT. 86 - CONCERNED, IN RELEVANT PART, WITH THE PRESERVATION OF
ELECTION RECORDS AND WITH THE IMPLEMENTATION OF THE FRANCHISE - SERVES
AS AN IMPRESSIVE BAR TO RE-EXAMINATION OF THE TRUE SCOPE OF R.S. SEC.
1979 ITSELF IN ITS PERTINENT LEGISLATIVE SETTING.  (FN32)

                 IV. 

THIS CASE SQUARELY PRESENTS THE QUESTION WHETHER THE INTRUSION OF A
CITY POLICEMAN FOR WHICH THAT POLICEMAN CAN SHOW NO SUCH AUTHORITY AT
STATE LAW AS COULD BE SUCCESSFULLY INTERPOSED IN DEFENSE TO A STATE-LAW
ACTION AGAINST HIM, IS NONETHELESS TO BE REGARDED AS "UNDER COLOR" OF
STATE AUTHORITY WITHIN THE MEANING OF R.S. SEC. 1979.  RESPONDENTS, IN
BREAKING INTO THE MONROE APARTMENT, VIOLATED THE LAWS OF THE STATE OF
ILLINOIS.  (FN33)  ILLINOIS LAW APPEARS TO OFFER A CIVIL REMEDY FOR
UNLAWFUL SEARCHES; (FN34) PETITIONERS DO NOT CLAIM THAT NONE IS
AVAILABLE.  RATHER THEY ASSERT THAT THEY HAVE BEEN DEPRIVED OF DUE
PROCESS OF LAW AND OF EQUAL PROTECTION OF THE LAWS UNDER COLOR OF STATE
LAW, ALTHOUGH FROM ALL THAT APPEARS THE COURTS OF ILLINOIS ARE
AVAILABLE TO GIVE THEM THE FULLEST REDRESS WHICH THE COMMON LAW AFFORDS
FOR THE VIOLENCE DONE THEM, NOR DOES ANY "STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE" OF THE STATE OF ILLINOIS BAR THAT
REDRESS.  DID THE ENACTMENT BY CONGRESS OF SEC. 1 OF THE KU KLUX ACT OF
1871 ENCOMPASS SUCH A SITUATION? 

THAT SECTION, IT HAS BEEN NOTED, WAS PATTERNED ON THE SIMILAR
CRIMINAL PROVISION OF SEC. 2, ACT OF APRIL 9, 1866.  THE EARLIER ACT
HAD AS ITS PRIMARY OBJECT THE EFFECTIVE NULLIFICATION OF THE BLACK
CODES, THOSE STATUTES OF THE SOUTHERN LEGISLATURES WHICH HAD SO
BURDENED AND DISQUALIFIED THE NEGRO AS TO MAKE HIS EMANCIPATION APPEAR
ILLUSORY.  (FN35)  THE ACT HAD BEEN VETOED BY PRESIDENT JOHNSON, WHOSE
VETO MESSAGE DESCRIBES CONTEMPORARY UNDERSTANDING OF ITS SECOND

"SEEMS TO BE DESIGNED TO APPLY TO SOME EXISTING OR FUTURE LAW OF A
STATE OR TERRITORY WHICH MAY CONFLICT WITH THE PROVISIONS OF THE BILL
...  .  IT PROVIDES FOR COUNTERACTING SUCH FORBIDDEN LEGISLATION BY
IMPOSING FINE AND IMPRISONMENT UPON THE LEGISLATORS WHO MAY PASS SUCH
CONFLICTING LAWS, OR UPON THE OFFICERS OR AGENTS WHO SHALL PUT, OR
ATTEMPT TO PUT, THEM INTO EXECUTION.  IT MEANS AN OFFICIAL OFFENSE, NOT
A COMMON CRIME COMMITTED AGAINST LAW UPON THE PERSONS OR PROPERTY OF
THE BLACK RACE.  SUCH AN ACT MAY DEPRIVE THE BLACK MAN OF HIS PROPERTY,
BUT NOT OF THE RIGHT TO HOLD PROPERTY.  IT MEANS A DEPRIVATION OF THE
RIGHT ITSELF, EITHER BY THE STATE JUDICIARY OR THE STATE LEGISLATURE." 
(FN36) 

AND SENATOR TRUMBULL, THEN CHAIRMAN OF THE SENATE JUDICIARY
COMMITTEE, (FN37) IN HIS REMARKS URGING ITS PASSAGE OVER THE VETO,
EXPRESSED THE INTENDMENT OF THE SECOND SECTION AS THOSE WHO VOTED FOR
IT READ IT: 

"IF AN OFFENSE IS COMMITTED AGAINST A COLORED PERSON SIMPLY BECAUSE
HE IS COLORED, IN A STATE WHERE THE LAW AFFORDS HIM THE SAME PROTECTION
AS IF HE WERE WHITE, THIS ACT NEITHER HAS NOR WAS INTENDED TO HAVE
ANYTHING TO DO WITH HIS CASE, BECAUSE HE HAD ADEQUATE REMEDIES IN THE
STATE COURTS; BUT IF HE IS DISCRIMINATED AGAINST UNDER COLOR OF STATE
LAWS BECAUSE HE IS COLORED, THEN IT BECOMES NECESSARY TO INTERFERE FOR
HIS PROTECTION."  (FN38) 

OF "AN ACT TO ENFORCE THE RIGHT OF CITIZENS  ...  TO VOTE IN THE
SEVERAL STATES  ...  ," 16 STAT. 140, 144.  THE FOLLOWING COLLOQUY ON
THAT OCCASION IS PARTICULARLY REVEALING:    "MR. SHERMAN.  ...  MY
COLLEAGUE CANNOT DENY THAT WE CAN BY APPROPRIATE LEGISLATION PREVENT
ANY PRIVATE PERSON FROM SHIELDING HIMSELF UNDER A STATE REGULATION, AND
THUS DENYING TO A PERSON THE RIGHT TO VOTE  ...  . 

"MR. CASSERLY.  I SHOULD LIKE TO ASK THE SENATOR FROM OHIO HOW A
STATE CAN BE SAID TO ABRIDGE THE RIGHT OF A COLORED MAN TO VOTE WHEN
SOME IRRESPONSIBLE PERSON IN THE STREETS IS THE ACTOR IN THAT WRONG? 

"MR. SHERMAN.  IF THE OFFENDER, WHO MAY BE A LOAFER, THE MEANEST MAN
IN THE STREETS, COVERS HIMSELF UNDER THE PROTECTION OR COLOR OF A LAW
OR REGULATION OR CONSTITUTION OF A STATE, HE MAY BE PUNISHED FOR DOING
IT. 

"MR. CASSERLY.  SUPPOSE THE STATE LAW AUTHORIZES THE COLORED MAN TO
VOTE; WHAT THEN? 

"MR. SHERMAN.  THAT IS NOT THE CASE WITH WHICH WE ARE DEALING  ...  .
THIS BILL ONLY PROPOSES TO DEAL WITH OFFENSES COMMITTED BY OFFICERS OR
PERSONS UNDER COLOR OF EXISTING STATE LAW, UNDER COLOR OF EXISTING
STATE CONSTITUTIONS.  NO MAN COULD BE CONVICTED UNDER THIS BILL
REPORTED BY THE JUDICIARY COMMITTEE UNLESS THE DENIAL OF THE RIGHT TO
VOTE WAS DONE UNDER COLOR OR PRETENSE OF STATE REGULATION.  THE WHOLE
BILL SHOWS THAT  ...  .  THE FIRST AND SECOND SECTIONS OF THE BILL  ...
SIMPLY PUNISH OFFICERS AS WELL AS PERSONS FOR DISCRIMINATION UNDER
COLOR OF STATE LAWS OR CONSTITUTIONS; AND IT SO PROVIDES ALL THE WAY
THROUGH."  (FN39) 

THE ORIGINAL TEXT OF THE PRESENT SEC. 1979 CONTAINED WORDS, LEFT OUT
IN THE REVISED STATUTES, WHICH CLARIFIED THE OBJECTIVE TO WHICH THE
PROVISION WAS ADDRESSED: 

"THAT ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE OF ANY STATE, SHALL SUBJECT, OR CAUSE TO
BE SUBJECTED, ANY PERSON WITHIN THE JURISDICTION OF THE UNITED STATES
TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY
THE CONSTITUTION OF THE UNITED STATES, SHALL, ANY SUCH LAW, STATUTE,
ORDINANCE, REGULATION, CUSTOM, OR USAGE OF THE STATE TO THE CONTRARY
NOTWITHSTANDING, BE LIABLE TO THE PARTY INJURED  ...  ."  (FN40) 

REPRESENTATIVE SHELLABARGER, REPORTING THE SECTION, EXPLAINED IT TO
THE HOUSE AS "IN ITS TERMS CAREFULLY CONFINED TO GIVING A CIVIL ACTION
FOR SUCH WRONGS AGAINST CITIZENSHIP AS ARE DONE UNDER COLOR OF STATE
LAWS WHICH ABRIDGE THESE RIGHTS."  (FN41)  SENATOR EDMUNDS, STEERING
THE MEASURE THROUGH THE SENATE, FOUND CONSTITUTIONAL SANCTION FOR IT IN
THE FOURTEENTH AMENDMENT, EXPLAINING THAT STATE ACTION MAY CONSIST IN
EXECUTIVE NONFEASANCE AS WELL AS MALFEASANCE, SO THAT ANY OFFENSES
AGAINST A CITIZEN IN A STATE ARE SUSCEPTIBLE OF FEDERAL PROTECTION
"UNLESS THE CRIMINAL WHO SHALL COMMIT THOSE OFFENSES IS PUNISHED AND
THE PERSON WHO SUFFERS RECEIVES THAT REDRESS WHICH THE PRINCIPLES AND
SPIRIT OF THE LAWS ENTITLE HIM TO HAVE."  (FN42)  AND JAMES A. GARFIELD
SUPPORTED THE BILL IN THE HOUSE AS "SO GUARDED AS TO PRESERVE INTACT
THE AUTONOMY OF THE STATES, THE MACHINERY OF THE STATE GOVERNMENTS, AND
THE MUNICIPAL ORGANIZATIONS ESTABLISHED UNDER STATE LAWS."  (FN43) 

INDEED, THE KU KLUX ACT AS A WHOLE ENCOUNTERED IN THE COURSE OF ITS
PASSAGE STRENUOUS CONSTITUTIONAL OBJECTIONS WHICH FOCUSED PRECISELY
UPON AN ASSERTEDLY UNAUTHORIZED EXTENSION OF FEDERAL JUDICIAL POWER
INTO AREAS OF EXCLUSIVE STATE COMPETENCE.  (FN44)  A SPECIAL TARGET WAS
SEC. 2 OF THE BILL AS REPORTED TO THE HOUSE, PROVIDING CRIMINAL
PENALTIES: 

"IF TWO OR MORE PERSONS SHALL, WITHIN THE LIMITS OF ANY STATE, BAND,
CONSPIRE, OR COMBINE TOGETHER TO DO ANY ACT IN VIOLATION OF THE RIGHTS,
PRIVILEGES, OR IMMUNITIES OF ANY PERSON, TO WHICH HE IS ENTITLED UNDER
THE CONSTITUTION AND LAWS OF THE UNITED STATES, WHICH, COMMITTED WITHIN
A PLACE UNDER THE SOLE AND EXCLUSIVE JURISDICTION OF THE UNITED STATES,
WOULD, UNDER ANY LAW OF THE UNITED STATES THEN IN FORCE, CONSTITUTE THE
CRIME OF EITHER MURDER, MANSLAUGHTER, MAYHEM, ROBBERY, ASSAULT AND
BATTERY, PERJURY, SUBORNATION OF PERJURY, CRIMINAL OBSTRUCTION OF
LEGAL, PROCESS OR RESISTANCE OF OFFICERS IN DISCHARGE OF OFFICIAL DUTY,
ARSON, OR LARCENY  ...  ."  (FN45) 

IN VAIN THE PROPONENTS OF THIS SECTION ARGUED ITS PROPRIETY, SEEKING
TO SUPPORT IT BY ARGUMENT EX NECESSITATE FROM THE COMPLETE FAILURE OF
STATE JUDICIAL AND EXECUTIVE ORGANS TO CONTROL THE DEPREDATIONS OF THE
KLAN.  (FN46)  EVEN IN THE RECONSTRUCTION CONGRESS, THE MAJORITY PARTY
SPLIT.  MANY BALKED AT LEGISLATION WHICH THEY REGARDED AS ESTABLISHING
A GENERAL FEDERAL JURISDICTION FOR THE PROTECTION OF PERSON AND
PROPERTY IN THE STATES.  (FN47)  ONLY AFTER A COMPLETE REWRITING OF THE
PASSED.  (FN48)  YET ALMOST NONE OF THOSE WHO HAD DECRIED SEC. 2 AS
UNDERTAKING IMPERMISSIBLY TO MAKE THE NATIONAL COURTS TRIBUNALS OF
CONCURRENT JURISDICTION FOR THE PUNISHMENT OF STATE-LAW OFFENSES
EXPRESSED SIMILAR OBJECTIONS TO SEC. 1, LATER SEC. 1979.  (FN49) ONE OF
THE MOST VEHEMENT OF THOSE WHO COULD FIND NO CONSTITUTIONAL SANCTION
FOR FEDERAL JUDICIAL CONTROL OF CONDUCT ALREADY PROSCRIBED BY STATE
LAW, AND WHO THEREFORE OPPOSED ORIGINAL SEC. 2 AS REACHING BEYOND THE
LIMITS OF CONGRESSIONAL COMPETENCE, EXPRESSLY SUPPORTED SEC. 1 AS
AFFORDING "FURTHER REDRESS FOR VIOLATIONS UNDER STATE AUTHORITY OF
CONSTITUTIONAL RIGHTS."  (FN50) 

THE GENERAL UNDERSTANDING OF THE LEGISLATORS UNQUESTIONABLY WAS THAT,
AS AMENDED, THE KU KLUX ACT DID "NOT UNDERTAKE TO FURNISH REDRESS FOR
WRONGS DONE BY ONE PERSON UPON ANOTHER IN ANY OF THE STATES  ...  IN
VIOLATION OF THEIR LAWS, UNLESS HE ALSO VIOLATED SOME LAW OF THE UNITED
STATES, NOR TO PUNISH ONE PERSON FOR AN ORDINARY ASSAULT AND BATTERY
...  ."  (FN51)  EVEN THOSE WHO - OPPOSING THE CONSTITUTIONAL OBJECTORS
- FOUND SUFFICIENT CONGRESSIONAL POWER IN THE ENFORCEMENT CLAUSE OF THE
FOURTEENTH AMENDMENT TO GIVE THIS KIND OF REDRESS, DEEMED INEXPEDIENT
THE EXERCISE OF ANY SUCH POWER:  "CONVENIENCE AND COURTESY TO THE
STATES SUGGEST A SPARING USE, AND NEVER SO FAR AS TO SUPPLANT THE STATE
AUTHORITIES EXCEPT IN CASES OF EXTREME NECESSITY, AND WHEN THE STATE
GOVERNMENTS CRIMINALLY REFUSE OR NEGLECT THOSE DUTIES WHICH ARE IMPOSED
UPON THEM."  (FN52)  EXTREME RADICALS, THOSE WHO BELIEVED THAT THE
REMEDY FOR THE OPPRESSED UNIONISTS IN THE SOUTH WAS A GENERAL EXPANSION
OF FEDERAL JUDICIAL JURISDICTION SO THAT "LOYAL MEN COULD HAVE THE
PRIVILEGE OF HAVING THEIR CAUSES, CIVIL AND CRIMINAL, TRIED IN THE
FEDERAL COURTS," WERE DISAPPOINTED WITH THE ACT AS PASSED.  (FN53) 

FINALLY, IT IS SIGNIFICANT THAT THE OPPONENTS OF THE ACT, EXHAUSTING
INGENUITY TO DISCOVER CONSTITUTIONAL OBJECTIONS TO EVERY PROVISION OF
IT, ALSO CONSTRUED SEC. 1 AS ADDRESSED ONLY TO CONDUCT AUTHORIZED BY
STATE LAW, AND THEREFORE WITHIN THE ADMITTED PERMISSIBLE REACH OF
FOURTEENTH AMENDMENT FEDERAL POWER.  "THE FIRST SECTION OF THIS BILL
PROHIBITS ANY INVIDIOUS LEGISLATION BY STATES AGAINST THE RIGHTS OR
PRIVILEGES OF CITIZENS OF THE UNITED STATES," ONE SUCH OPPONENT
PARAPHRASED THE PROVISION.  (FN54)  AND SENATOR THURMAN, WHO INSISTED
VOCIFEROUSLY ON THE ABSENCE OF FEDERAL POWER TO PENALIZE A CONSPIRACY
OF INDIVIDUALS TO VIOLATE STATE LAW ("THAT IS A CASE OF MERE INDIVIDUAL
VIOLENCE, HAVING NO COLOR WHATSOEVER OF AUTHORITY OF LAW, EITHER
FEDERAL OR STATE; AND TO SAY THAT YOU CAN PUNISH MEN FOR THAT MERE
CONSPIRACY, WHICH IS THEIR INDIVIDUAL ACT, AND WHICH IS A CRIME AGAINST
THE STATE LAWS THEMSELVES, PUNISHABLE BY THE STATE LAWS, IS SIMPLY TO
WIPE OUT ALL THE STATE JURISDICTION OVER CRIMES AND TRANSFER IT BODILY
TO THE CONGRESS"), (FN55) ADMITTED WITHOUT QUESTION THE
CONSTITUTIONALITY OF SEC. 1 (FN56) ("IT REFERS TO A DEPRIVATION UNDER
COLOR OF LAW, EITHER STATUTE LAW OR 'CUSTOM OR USAGE' WHICH HAS BECOME
COMMON LAW").  (FN57) 

THE COURT NOW SAYS, HOWEVER, THAT "IT WAS NOT THE UNAVAILABILITY OF
STATE REMEDIES BUT THE FAILURE OF CERTAIN STATES TO ENFORCE THE LAWS
WITH AN EQUAL HAND THAT FURNISHED THE POWERFUL MOMENTUM BEHIND THIS
'FORCE BILL.'"  OF COURSE, IF THE NOTION OF "UNAVAILABILITY" OF REMEDY
IS LIMITED TO MEAN AN ABSENCE OF STATUTORY, PAPER RIGHT, THIS IS IN
LARGE PART TRUE.  (FN58)  INSOFAR AS THE COURT UNDERTAKES TO
DEMONSTRATE - AS THE BULK OF ITS OPINION SEEMS TO DO - THAT SEC. 1979
WAS MEANT TO REACH SOME INSTANCES OF ACTION NOT SPECIFICALLY AUTHORIZED
BY THE AVOWED, APPARENT, WRITTEN LAW INSCRIBED IN THE STATUTE BOOKS OF
THE STATES, THE ARGUMENT KNOCKS AT AN OPEN DOOR.  NO ONE WOULD OR COULD
DENY THIS, FOR BY ITS EXPRESS TERMS THE STATUTE COMPREHENDS
DEPRIVATIONS OF FEDERAL RIGHTS UNDER COLOR OF ANY "STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE" OF A STATE.  THE QUESTION IS, WHAT CLASS
OF CASES OTHER THAN THOSE INVOLVING STATE STATUTE LAW WERE MEANT TO BE
REACHED.  AND, WITH RESPECT TO THIS QUESTION, THE COURT'S CONCLUSION IS
UNDERMINED BY THE VERY PORTIONS OF THE LEGISLATIVE DEBATES WHICH IT
CITES.  FOR SURELY THE MISCONDUCT OF INDIVIDUAL MUNICIPAL POLICE
OFFICERS, SUBJECT TO THE EFFECTIVE OVERSIGHT OF APPROPRIATE STATE
ADMINISTRATIVE AND JUDICIAL AUTHORITIES, PRESENTS A SITUATION WHICH
DIFFERS TOTO COELO FROM ONE IN WHICH "IMMUNITY IS GIVEN TO CRIME, AND
THE RECORDS OF THE PUBLIC TRIBUNALS ARE SEARCHED IN VAIN FOR ANY
EVIDENCE OF EFFECTIVE REDRESS,"  (FN59)  OR IN WHICH MURDER RAGES WHILE
A STATE MAKES "NO SUCCESSFUL EFFORT TO BRING THE GUILTY TO PUNISHMENT
OR AFFORD PROTECTION OR REDRESS," (FN60) OR IN WHICH THE "STATE COURTS
... (ARE) UNABLE TO ENFORCE THE CRIMINAL LAWS  ...  OR TO SUPPRESS THE
DISORDERS EXISITING," (FN61) OR IN WHICH, IN A STATE'S "JUDICIAL
TRIBUNALS ONE CLASS IS UNABLE TO SECURE THAT ENFORCEMENT OF THEIR
RIGHTS AND PUNISHMENT FOR THEIR INFRACTION WHICH IS ACCORDED TO
ANOTHER," (FN62) OR "OF  ... HUNDREDS OF OUTRAGES  ...  NOT ONE (IS)
PUNISHED," (FN63) OR "THE COURTS OF THE  ...  STATES FAIL AND REFUSE TO
DO THEIR DUTY IN THE PUNISHMENT OF OFFENDERS AGAINST THE LAW," (FN64)
OR IN WHICH A "CLASS OF OFFICERS CHARGED UNDER THE LAWS WITH THEIR
ADMINISTRATION PERMANENTLY AND AS A RULE REFUSE TO EXTEND (THEIR)
PROTECTION."  (FN65)  THESE STATEMENTS INDICATE THAT CONGRESS - MADE
KEENLY AWARE BY THE POST-BELLUM CONDITIONS IN THE SOUTH THAT STATES
THROUGH THEIR AUTHORITIES COULD SANCTION OFFENSES AGAINST THE
INDIVIDUAL BY SETTLED PRACTICE WHICH ESTABLISHED STATE LAW AS TRULY AS
WRITTEN CODES - DESIGNED SEC. 1979 TO REACH, AS WELL, OFFICIAL CONDUCT
WHICH, BECAUSE ENGAGED IN "PERMANENTLY AND AS A RULE," OR
"SYSTEMATICALLY," (FN66) CAME THROUGH ACCEPTANCE BY LAW-ADMINISTERING
OFFICERS TO CONSTITUTE "CUSTOM, OR USAGE" HAVING THE CAST OF LAW.  SEE
NASHVILLE, C.& ST. L.R. CO. V. BROWNING, 310 U.S. 362, 369.  THEY DO
NOT INDICATE AN ATTEMPT TO REACH, NOR DOES THE STATUTE BY ITS TERMS
INCLUDE, INSTANCES OF ACTS IN DEFIANCE OF STATE LAW AND WHICH NO
SETTLED STATE PRACTICE, NO SYSTEMATIC PATTERN OF OFFICIAL ACTION OR
INACTION, NO "CUSTOM, OR USAGE, OF ANY STATE," INSULATES FROM EFFECTIVE
AND ADEQUATE REPARATION BY THE STATE'S AUTHORITIES. 

RATHER, ALL THE EVIDENCE CONVERGES TO THE CONCLUSION THAT CONGRESS BY
SEC. 1979 CREATED A CIVIL LIABILITY ENFORCEABLE IN THE FEDERAL COURTS
ONLY IN INSTANCES OF INJURY FOR WHICH REDRESS WAS BARRED IN THE STATE
COURTS BECAUSE SOME "STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE"
SANCTIONED THE GRIEVANCE COMPLAINED OF.  THIS PURPOSE, MANIFESTED EVEN
BY THE SO-CALLED "RADICAL" RECONSTRUCTION CONGRESS IN 1871, ACCORDS
WITH THE PRESUPPOSITIONS OF OUR FEDERAL SYSTEM.  THE JURISDICTION WHICH
ARTICLE III OF THE CONSTITUTION CONFERRED ON THE NATIONAL JUDICIARY
REFLECTED THE ASSUMPTION THAT THE STATE COURTS, NOT THE FEDERAL COURTS,
WOULD REMAIN THE PRIMARY GUARDIANS OF THAT FUNDAMENTAL SECURITY OF
PERSON AND PROPERTY WHICH THE LONG EVOLUTION OF THE COMMON LAW HAD
SECURED TO ONE INDIVIDUAL AS AGAINST OTHER INDIVIDUALS.  THE FOURTEENTH
AMENDMENT DID NOT ALTER THIS BASIC ASPECT OF OUR FEDERALISM.  (FN67) 

ITS COMMANDS WERE ADDRESSED TO THE STATES.  ONLY WHEN THE STATES,
THROUGH THEIR RESPONSIBLE ORGANS FOR THE FORMULATION AND ADMINISTRATION
OF LOCAL POLICY, SOUGHT TO DENY OR IMPEDE ACCESS BY THE INDIVIDUAL TO
THE CENTRAL GOVERNMENT IN CONNECTION WITH THOSE ENUMERATED FUNCTIONS
ASSIGNED TO IT, OR TO DEPRIVE THE INDIVIDUAL OF A CERTAIN MINIMAL
FAIRNESS IN THE EXERCISE OF THE COERCIVE FORCES OF THE STATE, OR
WITHOUT REASONABLE JUSTIFICATION TO TREAT HIM DIFFERENTLY THAN OTHER
PERSONS SUBJECT TO THEIR JURISDICTION, WAS AN OVERRIDING FEDERAL
SANCTION IMPOSED.  AS BETWEEN INDIVIDUALS, NO CORPUS OF SUBSTANTIVE
RIGHTS WAS GUARANTEED BY THE FOURTEENTH AMENDMENT, BUT ONLY "DUE
PROCESS OF LAW" IN THE ASCERTAINMENT AND ENFORCEMENT OF RIGHTS AND
EQUALITY IN THE ENJOYMENT OF RIGHTS AND SAFEGUARDS THAT THE STATES
AFFORD.  THIS WAS THE BASE OF THE DISTINCTION BETWEEN FEDERAL
CITIZENSHIP AND STATE CITIZENSHIP DRAWN BY THE SLAUGHTER-HOUSE CASES,
16 WALL.  36.  THIS CONCEPTION BEGOT THE "STATE ACTION" PRINCIPLE ON
WHICH, FROM THE TIME OF THE CIVIL RIGHTS CASES, 109 U.S. 3, THIS COURT
HAS RELIED IN ITS APPLICATION OF FOURTEENTH AMENDMENT GUARANTEES.  AS
BETWEEN INDIVIDUALS, THAT BODY OF MUTUAL RIGHTS AND DUTIES WHICH
CONSTITUTE THE CIVIL PERSONALITY OF A MAN REMAINS ESSENTIALLY THE
CREATURE OF THE LEGAL INSTITUTIONS OF THE STATES. 

BUT, OF COURSE, IN THE PRESENT CASE PETITIONERS ARGUE THAT THE WRONGS
DONE THEM WERE COMMITTED NOT BY INDIVIDUALS BUT BY THE POLICE AS STATE
OFFICIALS.  THERE ARE TWO SENSES IN WHICH THIS MIGHT BE TRUE.  IT MIGHT
BE TRUE IF PETITIONERS ALLEGED THAT THE REDRESS WHICH STATE COURTS
OFFER THEM AGAINST THE RESPONDENTS IS DIFFERENT THAN THAT WHICH THOSE
COURTS WOULD OFFER AGAINST OTHER INDIVIDUALS, GUILTY OF THE SAME
CONDUCT, WHO WERE NOT THE POLICE.  THIS IS NOT ALLEGED.  IT MIGHT ALSO
BE TRUE MERELY BECAUSE THE RESPONDENTS ARE THE POLICE - BECAUSE THEY
ARE CLOTHED WITH AN APPEARANCE OF OFFICIAL AUTHORITY WHICH IS IN ITSELF
A FACTOR OF SIGNIFICANCE IN DEALINGS BETWEEN INDIVIDUALS.  CERTAINLY
THE NIGHT-TIME INTRUSION OF THE MAN WITH A STAR AND A POLICE REVOLVER
IS A DIFFERENT PHENOMENON THAN THE NIGHT-TIME INTRUSION OF A BURGLAR. 
THE AURA OF POWER WHICH A SHOW OF AUTHORITY CARRIES WITH IT HAS BEEN
CREATED BY STATE GOVERNMENT.  FOR THIS REASON THE NATIONAL LEGISLATURE,
EXERCISING ITS POWER TO IMPLEMENT THE FOURTEENTH AMENDMENT, MIGHT WELL
ATTRIBUTE RESPONSIBILITY FOR THE INTRUSION TO THE STATE AND LEGISLATE
TO PROTECT AGAINST SUCH INTRUSION.  THE PRETENSE OF AUTHORITY ALONE
MIGHT SEEM TO CONGRESS SUFFICIENT BASIS FOR CREATING AN EXCEPTION TO
THE ORDINARY RULE THAT IT IS TO THE STATE TRIBUNALS THAT INDIVIDUALS
WITHIN A STATE MUST LOOK FOR REDRESS AGAINST OTHER INDIVIDUALS WITHIN
THAT STATE.  THE SAME PRETENSE OF AUTHORITY MIGHT SUFFICE TO SUSTAIN
CONGRESSIONAL LEGISLATION CREATING THE EXCEPTION.  SEE EX PARTE
VIRGINIA, 100 U.S. 339.  BUT UNTIL CONGRESS HAS DECLARED ITS PURPOSE TO
SHIFT THE ORDINARY DISTRIBUTION OF JUDICIAL POWER FOR THE DETERMINATION
OF CAUSES BETWEEN CO-CITIZENS OF A STATE, THIS COURT SHOULD NOT MAKE
THE SHIFT.  CONGRESS HAS NOT IN SEC. 1979 MANIFESTED THAT INTENTION. 

THE UNWISDOM OF EXTENDING FEDERAL CRIMINAL JURISDICTION INTO AREAS OF
CONDUCT CONVENTIONALLY PUNISHED BY STATE PENAL LAW IS PERHAPS MORE
OBVIOUS THAN THAT OF EXTENDING FEDERAL CIVIL JURISDICTION INTO THE
TRADITIONAL REALM OF STATE TORT LAW.  BUT THE LATTER, TOO, PRESENTS ITS
PROBLEMS OF POLICY APPROPRIATELY LEFT TO CONGRESS.  SUPPOSE THAT A
STATE LEGISLATURE OR THE HIGHEST COURT OF A STATE SHOULD DETERMINE THAT
WITHIN ITS TERRITORIAL LIMITS NO DAMAGES SHOULD BE RECOVERED IN TORT
FOR PAIN AND SUFFERING, OR FOR MENTAL ANGUISH, OR THAT NO PUNITIVE
DAMAGES SHOULD BE RECOVERABLE.  SINCE THE FEDERAL COURTS WENT OUT OF
THE BUSINESS OF MAKING "GENERAL LAW," ERIE R. CO. V. TOMPKINS, 304 U.S.
64, SUCH DECISIONS OF LOCAL POLICY HAVE ADMITTEDLY BEEN THE EXCLUSIVE
PROVINCE OF STATE LAWMAKERS.  SHOULD THE CIVIL LIABILITY FOR POLICE
CONDUCT WHICH CAN CLAIM NO AUTHORITY UNDER LOCAL LAW, WHICH IS
ACTIONABLE AS COMMON-LAW ASSAULT OR TRESPASS IN THE LOCAL COURTS,
COMPORT DIFFERENT RULES?  SHOULD AN UNLAWFUL INTRUSION BY A POLICEMAN
IN CHICAGO ENTAIL DIFFERENT CONSEQUENCES THAN AN UNLAWFUL INTRUSION BY
A HOODLUM?  THESE ARE MATTERS OF POLICY IN ITS STRICTLY LEGISLATIVE
SENSE, NOT FOR DETERMINATION BY THIS COURT.  AND IF IT BE, AS IT IS, A
MATTER FOR CONGRESSIONAL CHOICE, THE LEGISLATIVE EVIDENCE IS
OVERWHELMING THAT SEC. 1979 IS NOT EXPRESSIVE OF THAT CHOICE.  INDEED,
ITS PRECISE LIMITATION TO ACTS "UNDER COLOR" OF STATE STATUTE,
ORDINANCE OR OTHER AUTHORITY APPEARS ON ITS FACE DESIGNED TO LEAVE ALL
QUESTIONS OF THE NATURE AND EXTENT OF LIABILITY OF INDIVIDUALS TO THE
LAWS OF THE SEVERAL STATES EXCEPT WHEN A STATE SEEKS TO SHIELD THOSE
INDIVIDUALS UNDER THE SPECIAL BARRIER OF STATE AUTHORITY.  TO EXTEND
CIVIL RIGHTS ACT LIABILITY BEYOND THAT POINT IS TO INTERFERE IN AREAS
OF STATE POLICY MAKING WHERE CONGRESS HAS NOT DETERMINED TO INTERFERE. 

NOR WILL SUCH INTERFERENCE BE NEGLIGIBLE.  ONE ARGUMENT URGED IN
SCREWS IN FAVOR OF THE RESULT WHICH THAT CASE REACHED WAS THE ANNOUNCED
POLICY OF SELF-RESTRAINT OF THE DEPARTMENT OF JUSTICE IN THE
PROSECUTION OF CASES UNDER 18 U.S.C. SEC. 242.  SEE 325 U.S., AT 159
160.  EXPERIENCE INDICATES THAT PRIVATE LITIGANTS CANNOT BE EXPECTED TO
SHOW THE SAME CONSIDERATION FOR THE AUTONOMY OF LOCAL ADMINISTRATION
WHICH THE DEPARTMENT PURPORTEDLY SHOWS.  (FN68) 

RELEVANT ALSO ARE THE EFFECTS UPON THE INSTITUTION OF FEDERAL
CONSTITUTIONAL ADJUDICATION OF SUSTAINING UNDER SEC. 1979 DAMAGE
ACTIONS FOR RELIEF AGAINST CONDUCT ALLEGEDLY VIOLATIVE OF FEDERAL
CONSTITUTIONAL RIGHTS, BUT PLAINLY VIOLATIVE OF STATE LAW.  PERMITTING
SUCH ACTIONS NECESSITATES THE IMMEDIATE DECISION OF FEDERAL
CONSTITUTIONAL ISSUES DESPITE THE ADMITTED AVAILABILITY OF STATE-LAW
REMEDIES WHICH WOULD AVOID THOSE ISSUES.  (FN69)  THIS WOULD MAKE
INROADS, THROUGHOUT A LARGE AREA, UPON THE PRINCIPLE OF FEDERAL
JUDICIAL SELF-LIMITATION WHICH HAS BECOME A SIGNIFICANT INSTRUMENT IN
THE EFFICIENT FUNCTIONING OF THE NATIONAL JUDICIARY.  SEE RAILROAD
COMM'N OF TEXAS V. PULLMAN CO., 312 U.S. 496, AND CASES FOLLOWING. 
SELF-LIMITATION IS NOT A MATTER OF TECHNICAL NICETY, NOR JUDICIAL
TIMIDITY.  IT REFLECTS THE RECOGNITION THAT TO NO SMALL DEGREE THE
EFFECTIVENESS OF THE LEGAL ORDER DEPENDS UPON THE INFREQUENCY WITH
WHICH IT SOLVES ITS PROBLEMS BY RESORTING TO DETERMINATIONS OF ULTIMATE
POWER.  ESPECIALLY IS THIS TRUE WHERE THE CIRCUMSTANCES UNDER WHICH
THOSE ULTIMATE DETERMINATIONS MUST BE MADE ARE NOT CONDUCIVE TO THE
MOST MATURE DELIBERATION AND DECISION.   IF SEC. 1979 IS MADE A VEHICLE
OF CONSTITUTIONAL LITIGATION IN CASES WHERE STATE OFFICERS HAVE ACTED
LAWLESSLY AT STATE LAW, DIFFICULT QUESTIONS OF THE FEDERAL
CONSTITUTIONALITY OF CERTAIN OFFICIAL PRACTICES - LAWFUL PERHAPS IN
SOME STATES, UNLAWFUL IN OTHERS - MAY BE LITIGATED BETWEEN PRIVATE
PARTIES WITHOUT THE PARTICIPATION OF RESPONSIBLE STATE AUTHORITIES
WHICH IS OBVIOUSLY DESIRABLE TO PROTECT LEGITIMATE STATE INTERESTS, BUT
ALSO TO BETTER GUIDE ADJUDICATION BY COMPETENT RECORD-MAKING AND
ARGUMENT. 

OF COURSE, THESE LAST CONSIDERATIONS WOULD BE IRRELEVANT TO OUR DUTY
IF CONGRESS HAD DEMONSTRABLY MEANT TO REACH BY SEC. 1979 ACTIVITIES
LIKE THOSE OF RESPONDENTS IN THIS CASE.  BUT WHERE IT APPEARS THAT
CONGRESS PLAINLY DID NOT HAVE THAT UNDERSTANDING, RESPECT FOR
PRINCIPLES WHICH THIS COURT HAS LONG REGARDED AS CRITICAL TO THE MOST
EFFECTIVE FUNCTIONING OF OUR FEDERALISM SHOULD AVOID EXTENSION OF A
STATUTE BEYOND ITS MANIFEST AREA OF OPERATION INTO APPLICATIONS WHICH
INVITE CONFLICT WITH THE ADMINISTRATION OF LOCAL POLICIES.  SUCH AN
EXTENSION MAKES THE EXTREME LIMITS OF FEDERAL CONSTITUTIONAL POWER A
LAW TO REGULATE THE QUOTIDIAN BUSINESS OF EVERY TRAFFIC POLICEMAN,
EVERY REGISTRAR OF ELECTIONS, EVERY CITY INSPECTOR OR INVESTIGATOR,
EVERY CLERK IN EVERY MUNICIPAL LICENSING BUREAU IN THIS COUNTRY.  THE
TEXT OF THE STATUTE, REINFORCED BY ITS HISTORY, PRECLUDES SUCH A
READING. 

IN CONCLUDING THAT POLICE INTRUSION IN VIOLATION OF STATE LAW IS NOT
A WRONG REMEDIAL UNDER R.S. SEC. 1979, THE PRESSURES WHICH URGE AN
OPPOSITE RESULT ARE DULY FELT.  THE DIFFICULTIES WHICH CONFRONT PRIVATE
CITIZENS WHO SEEK TO VINDICATE IN TRADITIONAL COMMON-LAW ACTIONS THEIR
STATE-CREATED RIGHTS AGAINST LAWLESS INVASION OF THEIR PRIVACY BY LOCAL
POLICEMEN ARE OBVIOUS, (FN70) AND OBVIOUS IS THE NEED FOR MORE
EFFECTIVE MODES OF REDRESS.  THE ANSWER TO THESE URGINGS MUST BE REGARD
FOR OUR FEDERAL SYSTEM WHICH PRESUPPOSES A WIDE RANGE OF REGIONAL
AUTONOMY IN THE KINDS OF PROTECTION LOCAL RESIDENTS RECEIVE.  IF
VARIOUS COMMON-LAW CONCEPTS MAKE IT POSSIBLE FOR A POLICEMAN - BUT NO
MORE POSSIBLE FOR A POLICEMAN THAN FOR ANY INDIVIDUAL HOODLUM INTRUDER
TO ESCAPE WITHOUT LIABILITY WHEN HE HAS VANDALIZED A HOME, THAT IS AN
EVIL.  BUT, SURELY, ITS REMEDY DEVOLVES, IN THE FIRST INSTANCE, ON THE
STATES.  OF COURSE, IF THE STATES AFFORD LESS PROTECTION AGAINST THE
POLICE, AS POLICE, THAN AGAINST THE HOODLUM - IF UNDER AUTHORITY OF
STATE "STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE" THE POLICE ARE
SPECIALLY SHIELDED - SEC. 1979 PROVIDES A REMEDY WHICH DISMISSAL OF
PETITIONERS' COMPLAINT IN THE PRESENT CASE DOES NOT IMPAIR.  OTHERWISE,
THE PROTECTION OF THE PEOPLE FROM LOCAL DELINQUENCIES AND SHORTCOMINGS
DEPENDS, AS IN GENERAL IT MUST, UPON THE ACTIVE CONSCIENCES OF STATE
EXECUTIVES, LEGISLATORS AND JUDGES.  (FN71)  FEDERAL INTERVENTION,
WHICH MUST AT BEST BE LIMITED TO SECURING THOSE MINIMAL GUARANTEES
AFFORDED BY THE EVOLVING CONCEPTS OF DUE PROCESS AND EQUAL PROTECTION,
MAY IN THE LONG RUN DO THE INDIVIDUAL A DISSERVICE BY DEFLECTING
RESPONSIBILITY FROM THE STATE LAWMAKERS, WHO HOLD THE POWER OF
PROVIDING A FAR MORE COMPREHENSIVE SCOPE OF PROTECTION.  LOCAL SOCIETY,
ALSO, MAY WELL BE THE LOSER, BY RELAXING ITS SENSE OF RESPONSIBILITY
AND, INDEED, PERHAPS RESENTING WHAT MAY APPEAR TO IT TO BE OUTSIDE
INTERFERENCE WHERE LOCAL AUTHORITY IS AMPLE AND MORE APPROPRIATE TO
SUPPLY NEEDED REMEDIES. 

THIS IS NOT TO SAY THAT THERE MAY NOT EXIST TODAY, AS IN 1871, NEEDS
WHICH CALL FOR CONGRESSIONAL LEGISLATION TO PROTECT THE CIVIL RIGHTS OF
INDIVIDUALS IN THE STATES.  STRONG CONTEMPORARY ASSERTIONS OF THESE
NEEDS HAVE BEEN EXPRESSED.  REPORT OF THE PRESIDENT'S COMMITTEE ON
CIVIL RIGHTS, TO SECURE THESE RIGHTS (1947); CHAFEE, SAFEGUARDING
FUNDAMENTAL HUMAN RIGHTS:  THE TASKS OF STATES AND NATION, 27 GEO.
WASH. L. REV. 519 (1959).  BUT BOTH THE INSISTENCE OF THE NEEDS AND THE
DELICACY OF THE ISSUES INVOLVED IN FINDING APPROPRIATE MEANS FOR THEIR
SATISFACTION DEMONSTRATE THAT THEIR DEMAND IS FOR LEGISLATIVE, NOT
JUDICIAL, RESPONSE.  WE CANNOT EXPECT TO CREATE AN EFFECTIVE MEANS OF
PROTECTION FOR HUMAN LIBERTIES BY TORTURING AN 1871 STATUTE TO MEET THE
PROBLEMS OF 1960. 

OF AN ENACTMENT LIKE THE CIVIL RIGHTS ACT, DEALING WITH THE
SAFEGUARDING AND PROMOTION OF INDIVIDUAL FREEDOM, IT IS ESPECIALLY
RELEVANT TO BE MINDFUL THAT, SINCE IT IS PROJECTED INTO THE FUTURE, IT
IS AMBULATORY IN ITS SCOPE, THE STATUTE PROPERLY ABSORBING THE
EXPANDING REACH OF ITS PURPOSE TO THE EXTENT THAT THE WORDS WITH WHICH
THAT PURPOSE IS CONVEYED FAIRLY BEAR SUCH EXPANSION.   BUT THIS
ADMISSIBLE EXPANSION OF MEANING THROUGH THE JUDICIAL PROCESS DOES NOT
ENTIRELY UNBIND THE COURTS AND LICENSE THEIR EXERCISE OF WHAT IS
QUALITATIVELY A DIFFERENT THING, NAMELY, THE FORMULATION OF POLICY
THROUGH LEGISLATION.  IN ONE OF THE LAST WRITINGS BY THAT TOUGH-MINDED
LIBERTARIAN, WHO WAS ALSO NO FRIEND OF NARROW CONSTRUCTION, PROFESSOR
ZECHARIAH CHAFEE, JR., HE ADMONISHED AGAINST PUTTING THE CIVIL RIGHTS
ACT TO DUBIOUS NEW USES EVEN THOUGH, AS A MATTER OF POLICY, THEY MIGHT
BE DESIRABLE IN THE CHANGED CLIMATE NEARLY A HUNDRED YEARS AFTER ITS
ENACTMENT: "AT ALL EVENTS, WE CAN BE SURE OF ONE THING.  IF FEDERAL
PROTECTION BE DESIRABLE, WE OUGHT TO GET IT BY SOMETHING BETTER THAN A
CRIMINAL STATUTE OF ANTIQUATED UNCERTAINTIES AND BASED ON THE OUT-MODED
PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT  ...  .
IT IS VERY QUEER TO TRY TO PROTECT HUMAN RIGHTS IN THE MIDDLE OF THE
TWENTIETH CENTURY BY A LEFT-OVER FROM THE DAYS OF GENERAL GRANT."  ID.,
AT 529.  IT IS NOT A WORK FOR COURTS TO MELT AND RECAST THIS STATUTE. 
"UNDER COLOR" OF LAW MEANT BY AUTHORITY OF LAW IN THE NINETEENTH
CENTURY.  NO JUDICIAL SYMPATHY, HOWEVER STRONG, FOR NEEDS NOW FELT CAN
GIVE THE PHRASE - A PHRASE WHICH OCCURS IN A STATUTE, NOT IN A
CONSTITUTION - ANY DIFFERENT MEANING IN THE TWENTIETH.  COMPARE MR.
JUSTICE HOLMES' VARYING APPROACHES TO CONSTRUCTION OF THE SAME WORD IN
A STATUTE AND IN THE CONSTITUTION, TOWNE V. EISNER, 245 U.S. 418, AND
EISNER V. MACOMBER, 252 U.S. 189, 219 (DISSENTING). 

THIS MEANING, NO DOUBT, POSES DIFFICULTIES FOR THE CASE-BY-CASE
APPLICATION OF SEC. 1979.  MANIFESTLY THE APPLICABILITY OF THE SECTION
IN AN ACTION FOR DAMAGES CANNOT BE MADE TO TURN UPON THE ACTUAL
AVAILABILITY OR UNAVAILABILITY OF A STATE-LAW REMEDY FOR EACH
INDIVIDUAL PLAINTIFF'S SITUATION.  PROSECUTION TO ADVERSE JUDGMENT OF A
STATE-COURT DAMAGE CLAIM CANNOT BE MADE PREREQUISITE TO SEC. 1979
RELIEF.  IN THE FIRST PLACE, SUCH A REQUIREMENT WOULD EFFECTIVELY
NULLIFY SEC. 1979 AS A VEHICLE FOR RECOVERING DAMAGES.  (FN72)  IN THE
SECOND PLACE, THE CONCLUSION THAT POLICE ACTIVITY WHICH VIOLATES STATE
LAW IS NOT "UNDER COLOR" OF STATE LAW DOES NOT TURN UPON THE EXISTENCE
OF A STATE TORT REMEDY.  RATHER, IT RECOGNIZES THE FREEDOM OF THE
STATES TO FASHION THEIR OWN LAWS OF TORTS IN THEIR OWN WAY UNDER NO
THREAT OF FEDERAL INTERVENTION SAVE WHERE STATE LAW MAKES DETERMINATIVE
OF A PLAINTIFF'S RIGHTS THE PARTICULAR CIRCUMSTANCE THAT DEFENDANTS ARE
ACTING BY STATE AUTHORITY.  SECTION 1979 WAS NOT DESIGNED TO CURE AND
LEVEL ALL THE POSSIBLE IMPERFECTIONS OF LOCAL COMMON-LAW DOCTRINES, BUT
TO PROVIDE FOR THE CASE OF THE DEFENDANT WHO CAN CLAIM THAT SOME
PARTICULAR DISPENSATION OF STATE AUTHORITY IMMUNIZES HIM FROM THE
ORDINARY PROCESSES OF THE LAW. 

IT FOLLOWS THAT FEDERAL COURTS IN ACTIONS AT LAW UNDER SEC. 1979
WOULD HAVE TO DETERMINE WHETHER DEFENDANTS' CONDUCT IS IN VIOLATION OF,
OR UNDER COLOR OF, STATE LAW OFTEN WITH LITTLE GUIDANCE FROM EARLIER
STATE DECISIONS.  SUCH A DETERMINATION WILL SOMETIMES BE DIFFICULT, OF
COURSE.  BUT FEDERAL DISTRICT COURTS SITTING IN DIVERSITY CASES ARE
OFTEN CALLED UPON TO DETERMINE AS INTRICATE AND UNCERTAIN QUESTIONS OF
LOCAL LAW AS WHETHER OFFICIAL AUTHORITY WOULD CLOAK A GIVEN PRACTICE OF
THE POLICE FROM LIABILITY IN A STATE-COURT SUIT.  CERTAIN FIXED POINTS
OF REFERENCE WILL BE AVAILABLE.  IF A PLAINTIFF CAN SHOW THAT DEFENDANT
IS ACTING PURSUANT TO THE SPECIFIC TERMS OF A STATE STATUTE OR OF A
MUNICIPAL ORDINANCE, SEC. 1979 WILL APPLY.  SEE LANE V. WILSON, 307
U.S. 268.  IF HE CAN SHOW THAT DEFENDANT'S CONDUCT IS WITHIN THE RANGE
OF EXECUTIVE DISCRETION IN THE ENFORCEMENT OF A STATE STATUTE, OR
MUNICIPAL ORDINANCE, SEC. 1979 WILL APPLY.  SEE HAGUE V. C.I.O., 307
U.S. 496.  BEYOND THESE CASES WILL LIE THE ADMITTEDLY MORE DIFFICULT
ONES IN WHICH HE SEEKS TO SHOW SOME " 'CUSTOM OR USAGE' WHICH HAS
BECOME COMMON LAW."  (FN73)

                     V. 

MY BROTHER HARLAN'S CONCURRING OPINION DESERVES SEPARATE
CONSIDERATION.  IT BEGINS BY ASKING WHAT IS ITS ESSENTIAL QUESTION:
WHY WOULD THE FORTY-SECOND CONGRESS, WHICH CLEARLY PROVIDED TORT RELIEF
IN THE FEDERAL COURTS FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS BY ACTS
OF A POLICEMAN ACTING PURSUANT TO STATE AUTHORITY, NOT ALSO HAVE
PROVIDED THE SAME RELIEF FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS BY A
POLICEMAN ACTING IN VIOLATION OF STATE AUTHORITY?  WHAT, IT INQUIRES,
WOULD CAUSE A CONGRESS TO DISTINGUISH BETWEEN THE TWO SITUATIONS? 
EXAMINING A FIRST POSSIBLE DIFFERENTIATING FACTOR - THE DIFFERING
DEGREES OF ADEQUACY OF PROTECTION OF PERSON AND PROPERTY ALREADY
AVAILABLE IN THE STATE COURTS - IT REASONS THAT THIS COULD NOT HAVE
BEEN SIGNIFICANT IN VIEW OF CONGRESS' PURPOSE IN 1871, FOR THAT PURPOSE
WAS NOT TO ENACT A STATUTE HAVING "MERELY A JURISDICTIONAL FUNCTION,
SHIFTING THE LOAD OF FEDERAL SUPERVISION FROM THE SUPREME COURT TO THE
LOWER COURTS AND PROVIDING A FEDERAL TRIBUNAL FOR FACT FINDINGS." 
EXAMINING THE OTHER POSSIBLE DISTINCTION - THE DIFFERENCE BETWEEN
INJURIES TO INDIVIDUALS FROM ISOLATED ACTS OF ABUSE OF AUTHORITY BY
STATE OFFICERS AND INJURIES TO INDIVIDUALS FROM ACTS SANCTIONED BY THE
DIGNITY OF STATE LAW - IT FINDS THAT THIS, TOO, COULD NOT HAVE BEEN
IMPORTANT, ESPECIALLY TO A CONGRESS WHICH WAS AWARE OF THE EXISTENCE OF
STATE CONSTITUTIONAL GUARANTEES OF PROTECTION TO THE INDIVIDUAL, AND
WHICH ENACTED THE CONSPIRACY STATUTE WHICH BECAME R.S. SEC. 1980 AND IS
NOW 42 U.S.C. SEC. 1985. 

TO ASK WHY A CONGRESS WHICH LEGISLATED TO REACH A STATE OFFICER
ENFORCING AN UNCONSTITUTIONAL LAW OR SANCTIONED USAGE DID NOT ALSO
LEGISLATE TO REACH THE SAME OFFICER ACTING UNCONSTITUTIONALLY WITHOUT
AUTHORITY IS TO ABSTRACT THIS STATUTE FROM ITS HISTORICAL CONTEXT.  THE
LEGISLATIVE PROCESS OF THE POST-BELLUM CONGRESSES WHICH ENACTED THE
SEVERAL CIVIL RIGHTS ACTS WAS ONE OF STRUGGLE AND COMPROMISE IN WHICH
THE POWER OF THE NATIONAL GOVERNMENT WAS EXPANDED PIECE BY PIECE
AGAINST BITTER RESISTANCE; THE RADICALS OF 1871 HAD TO YIELD GROUND AND
BARGAIN OVER DETAIL IN ORDER TO KEEP THE MODERATE REPUBLICANS IN LINE. 
(FN74)  THIS WAS NOT AN ENDEAVOR FOR ACHIEVING LEGISLATIVE PATTERNS OF
ANALYTICALLY SATISFYING SYMMETRY.  IT WAS A CONTEST OF LARGE SALLIES
AND SMALL RETREATS IN WHICH AS MUCH GROUND WAS OCCUPIED, AT ANY TIME,
AS THE TEMPORARY COALESCENCES OF FORCES STRONG ENOUGH TO ENROLL A
PREVAILING VOTE COULD AGREE UPON.  TO ASSUME THAT IF CONGRESS REACHED
ONE SITUATION IT WOULD ALSO HAVE REACHED ANOTHER SITUATION INVOLVING
NOT DISSIMILAR PROBLEMS - ASSUMING, ARGUENDO, THAT THE PROBLEMS, VIEWED
IN INTELLECTUAL ABSTRACTION, ARE NOT DISSIMILAR - IGNORES THE TEMPER OF
THE TIMES WHICH PRODUCED THE KU KLUX ACT.  THIS APPROACH WOULD BE
PERSUASIVE ONLY IF THE TWO SITUATIONS, THAT OF A STATE OFFICER ACTING
PURSUANT TO STATE AUTHORITY AND THAT OF A STATE OFFICER ACTING WITHOUT
STATE AUTHORITY, WERE SO ENTIRELY SIMILAR THAT THEY WOULD NOT, IN 1871,
HAVE BEEN PERCEIVED AS TWO DIFFERENT SITUATIONS AT ALL.  IN VIEW OF THE
FIERCE DEBATE WHICH OCCUPIED THE FORTY-SECOND CONGRESS AS TO WHETHER
THE FOURTEENTH AMENDMENT HAD BEEN INTENDED TO DO MORE THAN INVALIDATE
STATE LEGISLATION OFFENSIVE ON ITS FACE, (FN75) THIS SUPPOSITION MUST
BE RULED OUT.  CONTRARIWISE, IT IS HISTORICALLY PERSUASIVE THAT THE
FORTY-SECOND CONGRESS, WHICH WAS NOT THINKING IN NEAT ABSTRACT
CATEGORIES, DESIGNED A STATUTE TO PROTECT FEDERAL CONSTITUTIONAL RIGHTS
FROM AN IMMEDIATE EVIL PERCEIVED TO BE GRAVE - THE EVIL DESCRIBED BY
THE STATUTE'S SPONSOR, MR. SHELLABARGER, "SUCH WRONGS  ...  AS ARE DONE
UNDER COLOR OF STATE LAWS WHICH ABRIDGE THESE RIGHTS," (FN76) - BUT DID
NOT, BY THE SAME MEASURE, SEEK TO CONTROL UNCONSTITUTIONAL ACTION
ABUSIVE OF A STATE AUTHORITY WHICH DID NOT, ITSELF, "ABRIDGE THESE
RIGHTS." 

MOREOVER, EVEN UNDER THE MOST RIGOROUS ANALYSIS THE TWO SITUATIONS
ARGUMENTATIVELY DEEMED NOT DISSIMILAR ARE INDEED DISSIMILAR, AND
DISSIMILAR IN BOTH OF THE TWO RELEVANT ASPECTS.  AS TO THE ADEQUACY OF
STATE-COURT PROTECTION OF PERSON AND PROPERTY, THERE SEEMS A VERY SOUND
DISTINCTION, AS A CLASS, BETWEEN INJURIES SANCTIONED BY STATE LAW (AS
TO WHICH THERE CAN NEVER BE STATE-COURT REDRESS, IF AT ALL, UNLESS (1)
THE STATE COURTS ARE SUFFICIENTLY RECEPTIVE TO A FEDERAL CLAIM TO
DECLARE THEIR OWN LAW UNCONSTITUTIONAL, OR (2) THE LITIGANT PERSISTS
THROUGH A TORTUOUS AND PROTRACTED PROCESS OF APPEALS, AFTER A STATE
TRIAL COURT HAS FOUND THE FACTS, THROUGH THE STATE-COURT SYSTEM TO THIS
COURT) AND INJURIES NOT SANCTIONED BY STATE LAW.  TO MAKE THIS LINE OF
DISTINCTION DETERMINE THE INCIDENCE OF CIVIL RIGHTS LEGISLATION SERVES
TO COVER THE BULK OF CASES WHERE FEDERAL JUDICIAL PROTECTION WOULD BE
NEEDED.  TO BE SURE, THIS LEAVES CERTAIN CASES UNPROTECTED, NAMELY, THE
FEW INSTANCES OF FEDERAL CONSTITUTIONAL VIOLATIONS NOT AUTHORIZED BY
STATE STATUTE, CUSTOM OR USAGE AND WHICH CONCERN INTERESTS WHOLLY
UNRECOGNIZED BY STATE STATUTE OR COMMON LAW.  BUT THE COST OF IGNORING
THE DISTINCTION IN ORDER TO COVER THOSE CASES - THE COST, THAT IS, OF
PROVIDING A FEDERAL JUDICIAL REMEDY FOR EVERY CONSTITUTIONAL VIOLATION
INVOLVES PRE-EMPTION BY THE NATIONAL GOVERNMENT, IN THE LARGER CLASS
OF CASES IN WHICH RIGHTS SECURED BY THE FOURTEENTH AMENDMENT RELATE TO
INTERESTS OF PERSON AND PROPERTY HAVING A STATE-LAW ORIGIN, OF MATTERS
OF INTIMATE CONCERN TO STATE AND LOCAL GOVERNMENTS.  ONE OF THE MOST
PERSISTENTLY RECURRING MOTIFS IN THE LEGISLATIVE HISTORY OF THE KU KLUX
ACT IS PRECISELY A RELUCTANCE TO INVADE THESE REGIONS OF STATE AND
LOCAL CONCERN EXCEPT INSOFAR AS ABSOLUTELY NECESSARY FOR EFFECTIVE
ASSURANCE OF THE FOURTEENTH AMENDMENT'S GUARANTEES.  THEREFORE, THE
LINE OF DISTINCTION BETWEEN STATE-AUTHORIZED AND UNAUTHORIZED ACTIONS,
AS A LINE OF COMPROMISE AMONG POSITIONS CONCERNING WHICH THE
LEGISLATIVE EVIDENCE IS CLEAR THAT CONGRESS WANTED TO, AND DID,
COMPROMISE, IS THE MOST PROBABLE FOR THE ACT'S DRAFTSMEN TO HAVE
SELECTED. 

TO ATTRIBUTE SIGNIFICANCE TO THIS LINE OF DISTINCTION IS NOT TO
REDUCE THE KU KLUX ACT TO HAVING "MERELY A JURISDICTIONAL FUNCTION,
SHIFTING THE LOAD OF FEDERAL SUPERVISION FROM THE SUPREME COURT" TO AN
ORIGINAL FEDERAL TRIBUNAL.  FIRST, THERE ARE CERTAIN CLASSES OF CASES
WHERE SEC. 1979, CONSTRUED AS REACHING ONLY UNCONSTITUTIONAL CONDUCT
AUTHORIZED BY STATE LAW, WILL ACCORD "SUBSTANTIVE" RELIEF THAT WOULD
NOT HAVE BEEN AVAILABLE THROUGH THE MEANS OF STATE-LAW, STATE-COURT
LITIGATION SUBJECT TO THE COMMANDS OF THE SUPREMACY CLAUSE AND TO
SUPREME COURT REVIEW.  THIS WOULD BE THE CASE, FOR EXAMPLE, IF A NEGRO
WERE TO BRING AN ACTION FOR DAMAGES AGAINST A STATE ELECTION OFFICIAL
WHO HAD DENIED HIM THE RIGHT TO VOTE PURSUANT TO DISCRIMINATORY STATE
FRANCHISE PROVISIONS (FN77) IN A STATE WHICH DID NOT RECOGNIZE A COMMON
LAW ACTION FOR DEPRIVATION OF THE RIGHT TO VOTE.  SIMILARLY, ONE WHOSE
HOME HAD BEEN SEARCHED BY STATE POLICE ACTING UNDER A STATE STATUTE,
REGULATION, CUSTOM OR USAGE WHICH AUTHORIZED AN UNCONSTITUTIONAL
INTRUSION COULD RECOVER BY A SEC. 1979 ACTION A MEASURE OF RELIEF
DETERMINED, AS A "SUBSTANTIVE" MATTER, BY FEDERAL LAW, WHEREAS SUPREME
COURT-REVIEWED STATE-COURT SUIT MIGHT HAVE AVAILED HIM ONLY DAMAGES FOR
TECHNICAL TRESPASS.  AND, SECOND, WITH REFERENCE TO THE MORE NUMEROUS
CLASSES OF CASES IN WHICH THE REDRESS WHICH A FEDERAL TRIAL COURT MIGHT
GIVE WOULD BE APPROXIMATELY THE SAME, "SUBSTANTIVELY," AS THAT WHICH
COULD BE RECOVERED BY STATE-COURT SUIT, THE THEORY THAT THE
RECONSTRUCTION CONGRESS COULD NOT HAVE MEANT SEC. 1979 PRINCIPALLY AS A
"JURISDICTIONAL" PROVISION GRANTING ACCESS TO AN ORIGINAL FEDERAL FORUM
IN LIEU OF THE SLOWER, MORE COSTLY, MORE HAZARDOUS ROUTE OF FEDERAL
APPEAL FROM FACT-FINDING STATE COURTS, FORGETS HOW IMPORTANT PROVIDING
A FEDERAL TRIAL COURT WAS AMONG THE SEVERAL PURPOSES OF THE KU KLUX
ACT.  (FN78)  ONE MAY AGREE THAT IN ONE SENSE SEC. 1979 IS NOT "MERELY"
JURISDICTIONAL - NOT JURISDICTIONAL IN THE SENSE, FOR EXAMPLE, THAT
SEC. 3 OF THE 1866 CIVIL RIGHTS ACT WAS JURISDICTIONAL.  (FN79)
DOES NOT NEGATIVE THE FACT THAT A POWERFUL IMPULSE BEHIND THE CREATION
OF THIS "SUBSTANTIVE" RIGHT WAS THE PURPOSE THAT IT BE AVAILABLE IN,
AND BE SHAPED THROUGH, ORIGINAL FEDERAL TRIBUNALS. 

IN TRUTH, TO DEPRECATE THE PURPOSES OF THIS 1871 STATUTE IN TERMS OF
ANALYSIS WHICH REFERS TO "MERELY  ...  JURISDICTIONAL" EFFECTS, TO
"SHIFTING THE LOAD OF FEDERAL SUPERVISION," AND TO THE "ADMINISTRATIVE
BURDEN ON THE SUPREME COURT," IS TO ATTRIBUTE TWENTIETH CENTURY
CONCEPTIONS OF THE FEDERAL JUDICIAL SYSTEM TO THE RECONSTRUCTION
CONGRESS.  IF TODAY CONGRESS WERE TO DEVISE A COMPREHENSIVE SCHEME FOR
THE MOST EFFECTIVE PROTECTION OF FEDERAL CONSTITUTIONAL RIGHTS, IT
MIGHT CONCEIVABLY THINK IN TERMS OF DEFINING THOSE CLASSES OF CASES IN
WHICH SUPREME COURT REVIEW OF STATE-COURT DECISION WAS MOST
APPROPRIATE, AND THOSE IN WHICH ORIGINAL FEDERAL JURISDICTION WAS MOST
APPROPRIATE, FITTING ALL CASES INTO ONE OR THE OTHER CATEGORY.  THE
CONGRESS OF 1871 CERTAINLY DID NOT THINK IN SUCH TERMS.  UNTIL 1875
THERE WAS NO ORIGINAL "FEDERAL QUESTION" JURISDICTION IN THE FEDERAL
COURTS, (FN80) AND THE ORDINARY MODE OF PROTECTION OF FEDERAL
CONSTITUTIONAL RIGHTS WAS SUPREME COURT REVIEW.  (FN81)  IN LIGHT OF
THE THEN PREVAILING NOTIONS OF THE APPROPRIATE RELATIVE SPHERES OF
JURISDICTION OF STATE AND FEDERAL COURTS OF FIRST IMPRESSION, ANY
ALLOWANCE OF FEDERAL DISTRICT AND CIRCUIT COURT COMPETENCE TO
ADJUDICATE CAUSES BETWEEN CO-CITIZENS OF A STATE WAS A VERY SPECIAL
CASE, A RARITY.  (FN82)  TO ASK WHY, WHEN SUCH A SPECIAL CASE WAS
CREATED TO REDRESS DEPRIVATIONS OF FEDERAL RIGHTS UNDER AUTHORITY OF
STATE LAWS WHICH ABRIDGED THOSE RIGHTS, A SPECIAL CASE WAS NOT ALSO
CREATED TO COVER OTHER DEPRIVATIONS OF FEDERAL RIGHTS WHOSE SOMEWHAT
SIMILAR NATURE MIGHT HAVE MADE THE SAME REDRESS APPROPRIATE, DISREGARDS
THE DOMINANT JURISDICTIONAL THOUGHT OF THE DAY AND NEGLECTS
CONSIDERATION OF THE FACT THAT REDRESS IN A FEDERAL TRIAL COURT WAS
THEN TO BE VERY SPARINGLY AFFORDED.  TO EXTEND ORIGINAL FEDERAL
JURISDICTION ONLY IN THE CLASS OF CASES IN WHICH, CONSTITUTIONAL
VIOLATION BEING SANCTIONED BY STATE LAW, STATE JUDGES WOULD BE LESS
LIKELY THAN FEDERAL JUDGES TO BE SYMPATHETIC TO A PLAINTIFF'S CLAIM, IS
A PURPOSE QUITE CONSISTENT WITH THE "OVERFLOWING PROTECTION OF
CONSTITUTIONAL RIGHTS" WHICH, ASSUREDLY, SEC. 1979 MANIFESTS.  (FN83) 

FINALLY, IT SEEMS NOT UNREASONABLE TO REJECT THE SUGGESTION THAT
STATE-SANCTIONED CONSTITUTIONAL VIOLATIONS ARE NO MORE OFFENSIVE THAN
VIOLATIONS NOT SANCTIONED BY THE MAJESTY OF STATE AUTHORITY.  DEGREES
OF OFFENSIVENESS, PERHAPS, LIE LARGELY IN THE EYE OF THE PERSON
OFFENDED, BUT IS IT IMPLAUSIBLE TO CONCLUDE THAT THERE IS SOMETHING
MORE REPREHENSIBLE, SOMETHING MORE DANGEROUS, IN THE ACTION OF THE
CUSTODIAN OF A PUBLIC BUILDING WHO TURNS OUT A NEGRO PURSUANT TO A
LOCAL ORDINANCE THAN IN THE ACTION OF THE SAME CUSTODIAN WHO TURNS OUT
THE SAME NEGRO, IN VIOLATION OF STATE LAW, TO VENT A PERSONAL BIAS?  OR
SOMETHING MORE REPREHENSIBLE ABOUT THE PUBLIC OFFICER WHO BEATS A
CRIMINAL SUSPECT UNDER ORDERS FROM THE CAPTAIN OF DETECTIVES, PURSUANT
TO A SYSTEMATIC AND ACCEPTED CUSTOM OF THIRD-DEGREE PRACTICE, THAN
ABOUT THE SAME OFFICER WHO, LOSING HIS TEMPER, BREAKS ALL LOCAL
REGULATIONS AND BEATS THE SAME SUSPECT?  IF IT BE ADMITTED THAT THERE
IS A SIGNIFICANT DIFFERENCE BETWEEN THE SITUATION OF THE INDIVIDUAL
INJURED BY ANOTHER INDIVIDUAL AND WHO, ALTHOUGH THE LATTER IS AN AGENT
OF THE STATE, CAN CLAIM FROM THE STATE'S JUDICIAL OR ADMINISTRATIVE
PROCESSES THE SAME PROTECTION AND REDRESS AGAINST HIM AS WOULD BE
AVAILABLE AGAINST ANY OTHER INDIVIDUAL, AND THE SITUATION OF ONE WHO,
INJURED UNDER THE SANCTION OF A STATE LAW WHICH SHIELDS THE OFFENDER,
IS LEFT ALONE AND HELPLESS IN THE FACE OF THE ASSERTED DIGNITY OF THE
STATE, THEN, CERTAINLY, IT WAS THE LATTER OF THESE TWO SITUATIONS -
THAT OF THE UNPROTECTED SOUTHERN NEGROES AND UNIONISTS - ABOUT WHICH
CONGRESS WAS CONCERNED IN 1871.  (FN84) 

AGAIN, AN ANALYSIS WHICH SUPPOSES THAT CONGRESS, BY SECS. 1 AND 2
(FN85) OF THE KU KLUX ACT, WAS ATTEMPTING TO PROVIDE COMPREHENSIVE
COVERAGE OF A SINGLE PROBLEM AND, THEREFORE, MAY NOT BE SUPPOSED TO
HAVE LEFT ANY ASPECT OF THE PROBLEM UNPROVIDED FOR, IGNORES THAT THESE
TWO SECTIONS WERE IN FACT DESIGNED TO COPE WITH TWO WHOLLY DIFFERENT
PROBLEMS - TWO WHOLLY DIVERSE EVILS.  SECTION 2 WAS NEWLY DRAFTED IN
1871, NOT, LIKE SEC. 1, TAKEN OVER FROM THE 1866 ACT.  IT WAS BOTH
CIVIL AND CRIMINAL, NOT, LIKE SEC. 1, MERELY CIVIL.  IT AIMED
EXCLUSIVELY AT CONSPIRACIES, AS SEC. 1 DID NOT.  AND, MOST IMPORTANT,
IT SOUGHT TO PROTECT ONLY THE FEDERAL RIGHT OF EQUAL PROTECTION, NOT,
LIKE SEC. 1, ALL FOURTEENTH AMENDMENT RIGHTS.  (FN86)  BECAUSE OF ITS
LIMITED SCOPE IN THIS LATTER RESPECT, THOSE WHO DRAFTED IT AND VOTED
FOR IT THOUGHT THAT IT COULD CONSTITUTIONALLY BE MADE TO REACH
INSTANCES OF ACTION HAVING MORE TENUOUS CONNECTION WITH THE LAWFULLY
ASSERTED AUTHORITY OF THE STATE THAN COULD A STATUTE WHICH ALSO REACHED
DUE PROCESS VIOLATIONS.  (FN87)  FOR THE SAME REASON, IT DOES NOT REACH
ISOLATED INSTANCES OF MISUSE OF STATE AUTHORITY, BUT ONLY SUCH AS
POSSESS THE CHARACTER OF "PURPOSEFUL DISCRIMINATION" (FN88) WHICH
AMOUNTS TO A DENIAL OF EQUAL PROTECTION.  THE EVIL THAT SEC. 2 MEANT TO
STAMP OUT WAS THE EVIL OF CONSPIRACY - MORE PARTICULARLY, THE EVIL OF
THE KLAN, "A CONSPIRACY, SO FAR-FLUNG AND EMBRACING SUCH NUMBERS, WITH
A PURPOSE TO DOMINATE AND SET AT NAUGHT THE 'CARPETBAG' AND 'SCALAWAG'
GOVERNMENTS OF THE DAY," THAT IT APPEARED "ABLE EFFECTIVELY TO DEPRIVE
NEGROES OF THEIR LEGAL RIGHTS AND TO CLOSE ALL AVENUES OF REDRESS OR
VINDICATION."  COLLINS V. HARDYMAN, 341 U.S. 651, 662.  (FN89)  THE
ENORMITY AND THE POWER OF THIS ORGANIZATION WERE WHAT MADE IT
DANGEROUS.  (FN90)  SECTION 1 AIMED AT ANOTHER EVIL, THE EVIL NOT OF
COMBINATIONS DEDICATED TO PURPOSEFUL AND SYSTEMATIC DISCRIMINATION, BUT
OF VIOLATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION THROUGH THE AUTHORITY, ENHANCED BY THE MAJESTY AND
DIGNITY, OF THE STATES.  HERE IT WAS PRECISELY THIS AUTHORIZATION, THIS
ASSURANCE THAT BEHIND A CONSTITUTIONAL VIOLATION LAY THE WHOLE POWER OF
THE STATE, THAT WAS THE DANGER.  ONE CAN AGREE THAT THESE TWO STATUTORY
MORE PLAUSIBLE TO REGARD THIS UNEVEN OVERLAP AS A RESULT OF THE DIVERSE
ORIGINS AND PURPOSES OF THE SECTIONS THAN TO DERIVE FROM IT THE
JUSTIFICATION FOR A CONSTRUCTION OF SEC. 1979 WHICH DISTORTS THE
THE EVIL WITH WHICH SEC. 1, NOR THE EVIL WITH WHICH SEC. 2, OF THE KU
KLUX ACT WAS DESIGNED TO COPE. 
VI. 

THE PRESENT CASE COMES HERE FROM A JUDGMENT SUSTAINING A MOTION TO
DISMISS PETITIONERS' COMPLAINT.   THAT COMPLAINT, INSOFAR AS IT
DESCRIBES THE POLICE INTRUSION, MAKES NO ALLEGATION THAT THAT INTRUSION
WAS AUTHORIZED BY STATE LAW OTHER THAN THE CONCLUSORY AND UNSPECIFIC
CLAIM THAT "DURING ALL TIMES HEREIN MENTIONED THE INDIVIDUAL DEFENDANTS
AND EACH OF THEM WERE ACTING UNDER COLOR OF THE STATUTES, ORDINANCES,
REGULATIONS, CUSTOMS AND USAGES OF THE STATE OF ILLINOIS, OF THE COUNTY
OF COOK AND OF THE DEFENDANT CITY OF CHICAGO."  IN THE FACE OF ILLINOIS
DECISIONS HOLDING SUCH INTRUSIONS UNLAWFUL AND IN THE ABSENCE OF MORE
PRECISE FACTUAL AVERMENTS TO SUPPORT ITS CONCLUSION, SUCH A COMPLAINT
FAILS TO STATE A CLAIM UNDER SEC. 1979. 

HOWEVER, THE COMPLAINT DOES ALLEGE, AS TO THE TEN-HOUR DETENTION OF
MR. MONROE, THAT "IT WAS, AND IT IS NOW, THE CUSTOM OR USAGE OF THE
POLICE DEPARTMENT OF THE CITY OF CHICAGO TO ARREST AND CONFINE
INDIVIDUALS IN THE POLICE STATIONS AND JAIL CELLS OF THE SAID
DEPARTMENT FOR LONG PERIODS OF TIME ON 'OPEN' CHARGES."  THESE
CONFINEMENTS, IT IS ALLEGED, ARE FOR THE PURPOSE OF INTERROGATING AND
INVESTIGATING THE INDIVIDUALS ARRESTED, IN THE AIM OF INDUCING
INCRIMINATING STATEMENTS, PERMITTING POSSIBLE IDENTIFICATION OF
SUSPECTS IN LINEUPS, HOLDING SUSPECTS INCOMMUNICADO WHILE POLICE
CONDUCT FIELD INVESTIGATIONS OF THEIR ASSOCIATES AND BACKGROUND, AND
PUNISHING THE ARRESTED PERSONS WITHOUT TRIAL.  SUCH AVERMENTS DO
PRESENT FACTS WHICH, ADMITTED AS TRUE FOR PURPOSES OF A MOTION TO
DISMISS, SEEM TO SUSTAIN PETITIONERS' CLAIM THAT MR. MONROE'S DETENTION
- AS CONTRASTED WITH THE NIGHT-TIME INTRUSION INTO THE MONROE APARTMENT
- WAS "UNDER COLOR" OF STATE AUTHORITY.  UNDER THE FEW RELEVANT
ILLINOIS DECISIONS IT IS IMPOSSIBLE TO SAY WITH CERTAINTY THAT A
DETENTION INCOMMUNICADO FOR TEN HOURS IS UNLAWFUL PER SE, (FN91) OR
THAT THE COURTS OF THAT STATE WOULD HOLD THAT THE LAWLESS CIRCUMSTANCES
SURROUNDING MR. MONROE'S ARREST MADE HIS SUBSEQUENT CONFINEMENT
ILLEGAL.  ON THIS RECORD, THEN, PETITIONERS' COMPLAINT SUFFICES TO
RAISE THE NARROW ISSUE OF WHETHER THE DETENTION INCOMMUNICADO,
CONSIDERED ALONE, VIOLATES DUE PROCESS.  (FN92) 

SINCE THE MAJORITY'S DISPOSITION OF THE CASE CAUSES THE COURT NOT TO
REACH THAT CONSTITUTIONAL ISSUE, IT IS NEITHER NECESSARY NOR
APPROPRIATE TO DISCUSS IT HERE. 

FN1  THE COMPLAINT IS IN NINE COUNTS, AND SEEKS TO ASSERT A CLAIM IN
FAVOR OF MR. MONROE, MRS. MONROE, AND THEIR CHILDREN, RESPECTIVELY,
UNDER EACH OF R.S. SEC. 1979, 1980 AND 1981, 42 U.S.C. SECS. 1983, 1985
AND 1986.  PETITIONERS HAVE ABANDONED IN THIS COURT THEIR CLAIMS UNDER
SECS. 1980 AND 1981, AND WE ARE NOT NOW ASKED TO DETERMINE THE
APPLICABILITY OF THOSE SECTIONS TO THE FACTS ALLEGED. 

FN2  THE MURDER WAS ASSERTED BY THE EXAMINING OFFICERS TO HAVE BEEN
COMMITTED TWO DAYS BEFORE, ON OCTOBER 27. 

FN3  DRAWING UPON THE REASONING OF THE SLAUGHTER-HOUSE CASES, 16
WALL.  36, THIS DECISION DETERMINED THAT ONLY THOSE RIGHTS OR
PRIVILEGES WERE SECURED BY THE CONSTITUTION AND LAWS WHICH WERE
INHERENT IN THE STATUS OF THE INDIVIDUAL AS A CITIZEN OF THE NATIONAL
GOVERNMENT, SEE EX PARTE YARBROUGH, 110 U.S. 651, GUINN V. UNITED
STATES, 238 U.S. 347, OR WHICH WERE NECESSARY TO THE INTEGRITY OF THE
FEDERAL GOVERNMENTAL INSTITUTION, SEE MOTES V. UNITED STATES, 178 U.S.
458; COMPARE LOGAN V. UNITED STATES, 144 U.S. 263, WITH UNITED STATES
V. POWELL, 212 U.S. 564, OR WHICH WERE CREATED BY CONGRESS IN THE
LEGITIMATE EXERCISE OF ITS ARTICLE I POWERS, SEE UNITED STATES V.
WADDELL, 112 U.S. 76. 

FN4  IT WAS BROUGHT TO THE ATTENTION OF CONGRESS IN 1871 THAT
"RIGHTS, PRIVILEGES, OR IMMUNITIES" WAS A MORE EXTENSIVE PHRASE THAN
"PRIVILEGES OR IMMUNITIES" AS USED IN THE FOURTEENTH AMENDMENT
PROHIBITING A STATE FROM ABRIDGING "THE PRIVILEGES OR IMMUNITIES OF
CITIZENS OF THE UNITED STATES."  CONG. GLOBE, 42D CONG., 1ST SESS.,
APP. 49-50. 

FN5  "WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, OR CUSTOM, WILLFULLY SUBJECTS ANY INHABITANT OF ANY STATE
...  TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES
SECURED OR PROTECTED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES
...  SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN
ONE YEAR, OR BOTH." 

FN6  CIVIL LIABILITY HAS ALWAYS BEEN DRAWN FROM SUCH INDEFINITE
STANDARDS AS REASONABLE CARE, A MAN OF ORDINARY PRUDENCE,
FORESEEABILITY, ETC.  AND SEE BLATIMORE & OHIO R. CO. V. GROEGER, 266
U.S. 521; MILLER V. STRAHL, 239 U.S. 426. 

FN7  SEE KOEHLER V. UNITED STATES, 189 F.2D 711 (C.A. 5TH CIR.);
CLARK V. UNITED STATES, 193 F.2D 294 (C.A. 5TH CIR.); CREWS V. UNITED
STATES, 160 F.2D 746 (C.A. 5TH CIR.).  THESE CASES ARE NOT CITED BY WAY
OF APPROVAL. 

FN8  PETITIONERS ALSO RELY ON THE EQUAL PROTECTION CLAUSE.  THE
DISPOSITION OF THE LITIGATION BY THE MAJORITY HERE MAKES IT UNNECESSARY
TO DISCUSS THIS ASPECT OF THE CASE. 

FN9  SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105. 

FN10  SEE TWINING V. NEW JERSEY, 211 U.S. 78; POWELL V. ALABAMA, 287
U.S. 45; PALKO V. CONNECTICUT, 302 U.S. 319; BETTS V. BRADY, 316 U.S.
455; GIBBS V. BURKE, 337 U.S. 773; ROCHIN V. CALIFORNIA, 342 U.S. 165. 

FN11  ALA. CONST., ART. I, SEC. 5; ALASKA CONST., ART. I, SEC. 14;
ARIZ. CONST., ART. II, SEC. 8; ARK. CONST., ART. II, SEC. 15; CAL.
CONST., ART. I, SEC. 19; COLO. CONST., ART. II, SEC. 7; CONN. CONST.,
ART. I, SEC. 8; DEL. CONST., ART. I, SEC. 6; FLA. CONST., DECLARATION
OF RIGHTS, SEC. 22; GA. CONST., ART. I, SEC. 2-116; HAWAII CONST., ART.
I, SEC. 5; IDAHO CONST., ART. I, SEC. 17; ILL. CONST., ART. II, SEC. 6;
IND. CONST., ART. I, SEC. 11; IOWA CONST., ART. I, SEC. 8; KAN. CONST.,
BILL OF RIGHTS, SEC. 15; KY. CONST., BILL OF RIGHTS, SEC. 10; LA.
CONST., ART. 1, SEC. 7; ME. CONST., ART. I, SEC. 5; MD. CONST.,
DECLARATION OF RIGHTS, ART. 26; MASS. CONST., PT. I, ART. XIV; MICH.
CONST., ART. II, SEC. 10; MINN. CONST., ART. I, SEC. 10; MISS.  CONST.,
ART. 3, SEC. 23; MO. CONST., ART. I, SEC. 15; MONT. CONST., ART. III,
SEC. 7; NEB. CONST., ART. I, SEC. 7; NEV. CONST., ART. I, SEC. 18; N.H.
CONST., PT. I, ART. 19; N.J. CONST., ART. I, PAR. 7; N.M. CONST., ART.
II, SEC. 10; N.Y. CONST., ART. I, SEC. 12, AND CIVIL RIGHTS LAW, SEC.
8; N.C. CONST., ART. I, SEC. 15; N.D. CONST., ART. I, SEC. 18; OHIO
CONST., ART. I, SEC. 14; OKLA. CONST., ART. II, SEC. 30; ORE.  CONST.,
ART. I, SEC. 9; PA.  CONST., ART. I, SEC. 8; R.I. CONST., ART. I, SEC.
6; S.C. CONST., ART. I, SEC. 16; S.D. CONST., ART. VI, SEC. 11; TENN.
CONST., ART. I, SEC. 7; TEX. CONST., ART. I, SEC. 9; UTAH CONST., ART.
I, SEC. 14; VT. CONST., C.I., ART. 11; VA. CONST., ART. I, SEC. 10;
WASH. CONST., ART. I, SEC. 7; W.VA. CONST., ART. III, SEC. 6; WIS.
CONST., ART. I, SEC. 11; WYO. CONST., ART. I, SEC. 4. 

FN12  SEE HUCKLE V. MONEY, 2 WILS.  205; WILKES V. WOOD, 19 HOW.  ST.
TR. 1153; BESSEMER V. EIDGE, 162 ALA. 201, 50 SO. 270; 1 COOLEY'S
CONSTITUTIONAL LIMITATIONS (8TH ED. 1927) 610-615; FRAENKEL, CONCERNING
SEARCHES AND SEIZURES, 34 HARV. L. REV. 361 (1921), CONTAINING A
COLLECTION OF AUTHORITIES. 

FN13  SEE, E.G., THURMAN V. STATE, 116 FLA. 426, 156 SO. 484; COMPARE
SIMPSON V. STATE, 152 TEX. CR. R. 481, 215 S.W.2D 617, WITH MCCLANNAN
V. CHAPLAIN, 136 VA. 1, 15-17, 116 S.E.  495.  NOTE THE COMMON
LEGISLATIVE PROSCRIPTION UPON THE SEARCH OF PRIVATE HOMES BY OFFICERS
OTHERWISE AUTHORIZED TO MAKE ENTRIES FOR THE ENFORCEMENT OF PROHIBITION
LAWS AND OTHER REGULATORY STATUTES.  E.G., NATIONAL PROHIBITION ACT,
TIT. II, SEC. 25, 41 STAT. 305, 315; AND SEE CORNELIUS, SEARCH AND
SEIZURE (2D ED. 1930), SECS. 135-144. 

FN14  SEE 2 HALE, PLEAS OF THE CROWN (WILSON ED. 1800) 150. 

FN15  SEE, E.G., PEOPLE V. CAHAN, 44 CAL. 2D 434, 282 P.2D 905
(1955); SARAFINI V. SAN FRANCISCO, 143 CAL. APP. 2D 570, 300 P.2D 44
(1956); WARE V. DUNN, 80 CAL. APP. 2D 936, 183 P.2D 128 (1947); WALKER
V. WHITTLE, 83 GA. APP. 445, 64 S.E.2D 87 (1951); PEOPLE V. DALPE, 371
ILL. 607, 21 N.E.2D 756 (1939); HART V. STATE, 195 IND. 384, 145 N.E.
492 (1924); JOHNSON V. COMMONWEALTH, 296 S.W.2D 210 (KY. APP. 1956);
DEADERICK V. SMITH, 33 TENN. APP. 151, 230 S.W.2D 406 (1950). 

FN16  THE VARIOUS ANALYSES WHICH HAVE ENABLED THIS COURT TO FIND
STATE ACTION IN SITUATIONS OTHER THAN THAT PRESENTED BY BARNEY V. NEW
YORK, 193 U.S. 430, ARE PLAINLY NOT APPROPRIATE TO CONSIDERATION OF THE
QUESTION WHETHER IN A GIVEN INSTANCE OFFICIAL CONDUCT IS "UNDER COLOR"
OF STATE LAW.  NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362,
AND IOWA-DES MOINES NAT'L BANK V. BENNETT, 284 U.S. 239, CAME HERE ON
CERTIORARI FROM STATE COURT PROCEEDINGS.  COULTER V. LOUISVILLE &
NASHVILLE R. CO., 196 U.S. 599, AND RAYMOND V. CHICAGO TRACTION CO.,
207 U.S. 20, HELD THAT ACCEPTED ADMINISTRATIVE USAGE IN THE EXERCISE OF
A POWER SPECIFICALLY CONFERRED BY STATE LEGISLATION AND WHOLLY
DEPENDENT UPON THAT LEGISLATION FOR ITS COERCIVE EFFECTS MIGHT
CONSTITUTE SUCH ACTION OF A STATE AS TO PRESENT A COGNIZABLE FEDERAL
QUESTION.  BUT SEE MEMPHIS V. CUMBERLAND TEL. & TEL. CO., 218 U.S.
624.  SIMILARLY, HOME TEL. & TEL.  CO. V. LOS ANGELES, 227 U.S. 278,
HELD THAT THE EXISTENCE IN A STATE CONSTITUTION OF PROVISIONS
COINCIDENT WITH THOSE OF THE FEDERAL CONSTITUTION DID NOT IPSO FACTO
IMMUNIZE STATE OFFICIALS FROM THE ORIGINAL JURISDICTION OF THE FEDERAL
COURTS.  FROM NONE OF THESE CASES IS IMPLICATION TO BE DRAWN PERTINENT
TO THE INTERPRETATION OF SEC. 1979. 

FN17  SEE NOTE 5, SUPRA. 

FN18  MR. SHELLABARGER, CHAIRMAN OF THE HOUSE SELECT COMMITTEE WHICH
AUTHORED THE ACT OF APRIL 20, 1871, WHOSE FIRST SECTION IS NOW SEC.
1979, REPORTED TO THE HOUSE THAT THAT SECTION WAS MODELED UPON THE
SECOND SECTION OF THE ACT OF APRIL 9, 1866, 14 STAT. 27, AND THAT THE
TWO SECTIONS WERE INTENDED TO COVER THE SAME CASES, WITH QUALIFICATIONS
NOT RELEVANT HERE.  CONG. GLOBE, 42D CONG., 1ST SESS., APP. 68.  SEE
ALSO ID., AT 461.  THE 1866 PROVISION HAD BEEN RE-ENACTED,
SUBSTANTIALLY AND IN FORM, BY THE SEVENTEENTH AND EIGHTEENTH SECTIONS
OF THE ACT OF MAY 31, 1870, 16 STAT. 140, 144, AND THE 1874 REVISION OF
THE PROVISION WAS IN TURN PATTERNED ON THE PRESENT SEC. 1979.  SEE
SCREWS V. UNITED STATES, 325 U.S. 91, 99-100.  THE SECTIONS HAVE
CONSISTENTLY BEEN READ AS COEXTENSIVE IN THEIR REACH OF ACTS "UNDER
COLOR" OF STATE AUTHORITY.  PICKING V. PENNSYLVANIA R. CO., 151 F.2D
240, 248 (C.A. 3D CIR.); BURT V. CITY OF NEW YORK, 156 F.2D 791, 792
(C.A.2D CIR.); MCSHANE V. MOLDOVAN, 172 F.2D 1016, 1020 (C.A. 6TH
CIR.); GEACH V. MOYNAHAN, 207 F.2D 714, 717 (C.A. 7TH CIR.). 

AS ENACTED IN 1871, THE PROVISION WHICH IS NOW SEC. 1979 REACHED ACTS
TAKEN "UNDER COLOR OF ANY LAW, STATUTE ORDINANCE, REGULATION, CUSTOM,
OR USAGE OF ANY STATE  ...  ."  17 STAT.  13.  IN THE REVISED STATUTES
OF 1874 AND 1878 "LAW" WAS OMITTED FROM THE SECTION, ALTHOUGH "LAW" WAS
RETAINED IN THE PARALLEL CRIMINAL PROVISION, R.S. SEC. 5510, AS
AMENDED, 18 U.S.C.  SEC. 242, AND IN THE JURISDICTIONAL PROVISIONS,
R.S. SECS. 563(12) AND 629(16).  THE DELETION IN SEC. 1979 APPEARS IN
THE REVISER'S DRAFT (1872) WITHOUT EXPLANATION.  1 REVISION OF U.S.
STATUTES, DRAFT (1872) 947.  NO ALTERATION IN STATUTORY COVERAGE IS
PERMISSIBLY TO BE BASED UPON THE CHANGE. 

THE JURISDICTIONAL PROVISIONS MAY NOW BE FOUND IN 28 U.S.C. SEC.
1343. 

FN19  CARTER V. GREENHOW, 114 U.S. 317; BOWMAN V. CHICAGO & N.W. RY.
CO., 115 U.S. 611; GILES V. HARRIS, 189 U.S. 475; DEVINE V. LOS
ANGELES, 202 U.S. 313; MYERS V. ANDERSON, 238 U.S. 368; NIXON V.
HERNDON, 273 U.S. 536; LANE V. WILSON, 307 U.S. 268; DOUGLAS V.
JEANNETTE, 319 U.S. 157.  ONE CASE NOT INVOLVING A STATE CONSTITUTION,
STATUTE, OR ORDINANCE WAS AN INSTANCE OF STATE JUDICIAL ACTION.  GREEN
V. ELBERT, 137 U.S. 615; AND SEE ANGLO-AMERICAN PROV.  CO. V. DAVIS
PROV.  CO., NO. 2, 191 U.S. 376. 

FN20  HOLT V. INDIANA MFG. CO., 176 U.S. 68; MOYER V. PEABODY, 212
U.S. 78; HAGUE V. C.I.O., 307 U.S. 496; CF. SMITH V. ALLWRIGHT, 321
U.S. 649. 

FN21  NORTHWESTERN FERTILIZING CO. V. HYDE PARK, 18 FED. CAS. 393,
NO. 10,336 (C.C.N.D. ILL. 1873); BALTIMORE & OHIO R. CO. V. ALLEN, 17
F. 171 (C.C.W.D. VA. 1883); TUCHMAN V. WELCH, 42 F. 548, AND M.
SCHANDLER BOTTLING CO. V. WELCH, 42 F. 561 (C.C.D. KAN. 1890); HEMSLEY
V. MYERS, 45 F. 283 (C.C.D. KAN. 1891); DAVENPORT V. CLOVERPORT, 72 F.
689 (D.C.D. KY. 1896); FRASER V. MCCONWAY & TORLEY CO., 82 F. 257
(C.C.D. PA. 1897); CRYSTAL SPRINGS LAND & WATER CO. V. LOS ANGELES, 76
F. 148 (C.C.S.D. CAL. 1896), AFF'D, 177 U.S. 169 (SEE CALIFORNIA OIL &
GAS CO. V. MILLER, 96 F. 12 (C.C.S.D. CAL. 1889)); AULTMAN & TAYLOR CO.
V. BRUMFIELD, 102 F. 7 (C.C.N.D. OHIO 1900), APP. DISM'D 22 S. CT. 938;
WADLEIGH V. NEWHALL, 136 F. 941 (C.C.N.D.  CAL. 1905); FARSON V. CITY
OF CHICAGO, 138 F. 184 (C.C.N.D. ILL. 1905); BRICKHOUSE V. BROOKS, 165
F. 534 (C.C.E.D. VA. 1908); SIMPSON V. GEARY, 204 F. 507 (D.C.D. ARIZ.
1913); RAICH V. TRUAX, 219 F. 273 (D.C.D. ARIZ. 1915), AFF'D, 239 U.S.
33; MARCUS BROWN HOLDING CO. V. POLLAK, 272 F. 137 (D.C.S.D.N.Y. 1920);
WEST V. BLILEY, 33 F.2D 177 (D.C.E.D. VA. 1929), AFF'D, 42 F.2D 101
(C.A. 4TH CIR. 1930); TRUDEAU V. BARNES, 65 F.2D 563 (C.A. 5TH CIR.
1933); JONES V. OKLAHOMA CITY, 78 F.2D 860 (C.A. 10TH CIR. 1935);
MITCHELL V. GREENOUGH, 100 F.2D 184 (C.A. 9TH CIR. 1938); BLACKMAN V.
STONE, 101 F.2D 500 (C.A. 7TH CIR. 1939); CITY OF MANCHESTER V. LEIBY,
117 F.2D 661 (C.A. 1ST CIR. 1941); HANNAN V. CITY OF HAVERHILL, 120
F.2D 87 (C.A. 1ST CIR. 1941); HUME V. MAHAN, 1 F. SUPP.  142 (D.C.E.D.
KY. 1932), REV'D, 287 U.S. 575; PREMIER-PABST SALES CO. V. MCNUTT, 17
F. SUPP.  708 (D.C.S.D. IND. 1935); GOBITIS V. MINERSVILLE SCHOOL
DIST., 21 F. SUPP. 581 (D.C.E.D. PA.  1937), 24 F. SUPP. 271 (1938),
AFF'D, 108 F.2D 683 (C.A. 3D CIR. 1939), REV'D, 310 U.S. 586; CONNOR V.
RIVERS, 25 F. SUPP. 937 (D.C.N.D. GA. 1938), AFF'D, 305 U.S. 576;
GHADIALI V. DELEWARE STATE MEDICAL SOCIETY, 28 F. SUPP. 841 (D.C.D.
DEL. 1939); MILLS V. BOARD OF EDUCATION, 30 F. SUPP. 245 (D.C.D. MD.
1939); BLUFORD V. CANADA, 32 F. SUPP. 707 (D.C.W.D. MO.  1940), APP.
DISM'D, 119 F.2D 779 (C.A. 8TH CIR. 1941); KENNEDY V. CITY OF MOSCOW,
39 F. SUPP.  26 (D.C.D. IDAHO 1941).  IN THESE CASES R.S. SEC. 1979 OR
THE PARALLEL JURISDICTIONAL PROVISIONS WERE INVOKED.  NOTE THAT IN THE
JONES AND FARSON CASES, SUPRA, DEFENDANT'S CONDUCT WAS SPECIFICALLY
AUTHORIZED BY LOCAL ORDINANCE, ALTHOUGH PLAINTIFFS ASSERTED THE
INVALIDITY OF THOSE ORDINANCES UNDER STATE AS WELL AS UNDER FEDERAL
LAW.  IN BOTH CASES RELIEF WAS DENIED ON THE GROUND THAT NO STATE
ACTION WAS SHOWN, WITHIN THE RULE OF BARNEY V. NEW YORK, 193 U.S. 430. 
TO THIS GROUP OF CASES INVOLVING ACTS AUTHORIZED BY STATE LAW MUST BE
ADDED MILLER V. RIVERS, 31 F. SUPP. 540 (D.C.M.D. GA. 1940), REV'D AS
MOOT, 112 F.2D 439 (C.A. 5TH CIR. 1940), IN WHICH A STATE GOVERNOR HAD
SEVERAL TIMES AUTHORIZED ACTION IN VIOLATION OF STATE COURT RESTRAINING
ORDERS, FINALLY DECLARING MARTIAL LAW IN THE FACE OF THE STATE JUDICIAL
DECREES.  TWO REPORTED CRIMINAL PROSECUTIONS UNDER SEC. 242 ALSO
INVOLVED CONDUCT SANCTIONED BY STATE LAW.  UNITED STATES V. BUNTIN, 10
F. 730 (C.C.S.D. OHIO 1882); UNITED STATES V. STONE, 188 F. 836 (D. MD.
1911).  CF. UNITED STATES V. HORTON, 26 FED. CAS. 375, NO. 15,392 (D.
ALA. 1867), SEMBLE. 

FN22  BRAWNER V. IRVIN, 169 F. 964 (C.C.N.D. GA. 1909).  IN ONE CASE
DECIDED IN 1940 JUST PRIOR TO UNITED STATES V. CLASSIC, 313 U.S. 299, A
FEDERAL DISTRICT COURT DID DISTINCTLY DECIDE THAT SIMILAR POLICE
MISCONDUCT UNAUTHORIZED BY STATE LAW, WAS "UNDER COLOR" OF STATE LAW. 
UNITED STATES V. SUTHERLAND, 37 F. SUPP. 344 (D.C.N.D. GA. 1940).  AN
UNREPORTED 1940 CASE, UNITED STATES V. COWAN (D.C.E.D. LA.), IS SAID TO
HAVE REACHED A SIMILAR RESULT.  SEE 1941 ATTY. GEN. REP. 98; BRIEF FOR
THE UNITED STATES, UNITED STATES V. CLASSIC, 313 U.S. 299, P. 45, N.
25.  IN NEITHER OF THESE TWO CASES DOES THERE APPEAR TO HAVE BEEN ANY
EXAMINATION OF THE LEGISLATIVE HISTORY OF THE "UNDER COLOR" STATUTES,
NOR IS ANY REASONING OFFERED TO SUPPORT THE CONCLUSION OF THE COURTS. 

FN23  THE COURT BELOW HAD DISMISSED THE INDICTMENT ON THE GROUND THAT
THE RIGHT WAS NOT SO SECURED AND HAD NOT DISCUSSED THE "UNDER COLOR"
ISSUE.  35 F. SUPP. 66. 

FN24  THE GOVERNMENT'S BRIEF CONTENDED THAT, INASMUCH AS THE CIVIL
RIGHTS STATUTES WERE PASSED TO ENFORCE THE FOURTEENTH AMENDMENT, THEY
SHOULD BE READ AS COEXTENSIVE WITH IT: "UNDER COLOR" OF STATE LAW
SHOULD BE COINCIDENT WITH "STATE ACTION" AS THIS COURT HAD DEVELOPED
THE "STATE ACTION" CONCEPT.   CLASSIC'S BRIEF ARGUED THE POINT AS
THOUGH IT WERE URGING A "STATE ACTION" CONTENTION. 

FN25  EX PARTE VIRGINIA, 100 U.S. 339, AROSE UNDER FEDERAL
LEGISLATION PENALIZING "ANY OFFICER OR OTHER PERSON CHARGED WITH ANY
DUTY IN THE SELECTION OR SUMMONING OF JURORS" WHO DISCRIMINATED ON
GROUNDS OF RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE IN THE
CHOOSING OF JURIES.  THE ISSUE WAS WHETHER THIS PROVISION COULD
CONSTITUTIONALLY BE APPLIED TO A STATE JUDGE WHO DISCRIMINATED IN THE
ADMINISTRATION OF A STATE STATUTE FAIR ON ITS FACE.  HOME TEL.  & TEL.
CO. V. LOS ANGELES, 227 U.S. 278, POSED THE QUESTION WHETHER THE
ENFORCEMENT OF AN ALLEGEDLY CONFISCATORY MUNICIPAL REGULATORY ORDINANCE
WAS STATE ACTION FOR PURPOSES OF FEDERAL DISTRICT COURT "ARISING UNDER"
JURISDICTION. 

FN26  THE MAYOR AND OTHER OFFICIALS OF JERSEY CITY WERE CHARGED WITH
A CONCERTED PROGRAM OF DISCRIMINATORY LAW ENFORCEMENT INTENDED TO DRIVE
UNION ORGANIZERS OUT OF THE CITY.  THE ACTS UPON WHICH AMENABILITY TO
SUIT UNDER SEC. 1979 WAS PREDICATED WERE (1) THE ENFORCEMENT OF A
MUNICIPAL ORDINANCE WHICH THIS COURT HELD UNCONSTITUTIONAL ON ITS FACE;
(2) THE ENFORCEMENT OF A SECOND ORDINANCE IN A MANNER WHICH WILLFULLY
DISCRIMINATED AGAINST UNION ORGANIZERS; AND (3) "ACTS NOT UNDER THE
AUTHORITY OF ANY ORDINANCE OR STATUTE BUT COMMITTED UNDER COLOR OF
MUNICIPAL OFFICE AND AS PART OF A DELIBERATE MUNICIPAL POLICY."  101
F.2D 774, 790.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT HELD THAT,
ON THESE FACTS, ALL THREE CLASSES OF CONDUCT, VIEWED TOGETHER,
CONSTITUTED "STATE ACTION."  THIS COURT AFFIRMED AND MODIFIED THE
DECREE WITHOUT CONSIDERING THE POINT. 

FN27  THAT THE COURT HAD NOT IN THE CLASSIC CASE ISOLATED THE "UNDER
COLOR" ISSUE FROM THE QUESTION OF "STATE ACTION" IS INDICATED BY THE
OPINIONS IN SNOWDEN V. HUGHES, 321 U.S. 1.  THE LATTER CASE AROSE UNDER
SEC. 1979, YET ALTHOUGH THE "STATE ACTION" PRINCIPLE HAD BEEN THE BASIS
FOR THE DECISION BELOW AND WAS PROMINENTLY TREATED IN TWO OPINIONS
HERE, NO REFERENCE WAS MADE TO THE "UNDER COLOR" PHRASE. 

FN28  THE BRIEF FOR PETITIONERS SCREWS ET AL. CONTAINS NO CITATION TO
LEGISLATIVE HISTORY.  THE BRIEF FOR THE UNITED STATES, AFTER SEVERAL
CITATIONS INTENDED TO DEMONSTRATE THAT THE PURPOSE OF THE CIVIL RIGHTS
ACTS WAS TO ENFORCE THE FOURTEENTH AMENDMENT AND TO PROTECT THE RIGHTS
WHICH IT SECURES (THESE CITATIONS, EMPLOYED TO THE SAME PURPOSE, MAY BE
FOUND IN THE PLURALITY OPINION, 325 U.S., AT 98-99), SETS FORTH ONLY
ONE OTHER BIT OF LEGISLATIVE MATERIAL: A STATEMENT MADE IN DEBATE BY
SENATOR DAVIS OF KENTUCKY, AN OPPONENT OF THE ACT OF 1866, TO THE
EFFECT THAT THE ACT WOULD REPEAL THE PENAL LAWS OF ALL THE STATES.  SEE
CONG. GLOBE, 39TH CONG., 1ST SESS. 598. 

FN29  SEE 325 U.S., AT 111 (PLURALITY); ID., AT 142-144 (DISSENT). 
THESE TWO STATEMENTS ARE SET FORTH IN TEXT AT NOTES 38 AND 39, INFRA. 
THE PLURALITY OPINION ALSO CONTAINS REFERENCES TO OTHER ASPECTS OF THE
LEGISLATIVE HISTORY IN ANOTHER CONTEXT, ID., AT 98-100; SEE NOTE 28,
SUPRA.  IN HIS SEPARATE OPINION, MR. JUSTICE RUTLEDGE TWICE ADVERTS TO
LEGISLATIVE MATERIALS, ONCE WITH REGARD TO MATTERS NOT RELEVANT HERE,
ID., AT 120, N. 13, 14, AND ONCE, PERTINENTLY, WITH PARTICULAR
REFERENCE TO THE POSITION OF OPPONENTS OF THE 1866 ACT THAT THE
LEGISLATION WOULD INVADE THE PROVINCE OF THE STATES (SETTING FORTH
SENATOR DAVIS' STATEMENT, SEE NOTE 28, SUPRA), ID., AT 132, N. 33.  MR.
JUSTICE MURPHY, ALSO WRITING SEPARATELY, DOES NOT DISCUSS THE "UNDER
COLOR" ISSUE. 

FN30  NEITHER THE COURT'S OPINION NOR THE BRIEFS IN WILLIAMS CONTAIN
ANY CITATION TO THE LEGISLATIVE HISTORY OF THE CIVIL RIGHTS ACTS.  IT
IS TRUE THAT BETWEEN SCREWS AND WILLIAMS CONGRESS IN 1948 RE-ENACTED
SEC. 242 WITHOUT MATERIAL CHANGE.  IF THAT SECTION WERE BEFORE THE
COURT IN THE PRESENT CASE, THE IMPLICATIONS OF THAT RE-ENACTMENT MIGHT
HAVE TO BE APPRAISED.  YET WHATEVER TENUOUS THREAD OF LEGISLATIVE
APPROBATION OF SCREWS MIGHT BE DRAWN FROM THE KIND OF BULK-SALE
CONGRESSIONAL ACTION WHICH WAS INVOLVED IN ITS ENACTMENT OF A WHOLE
CRIMINAL CODE BY WAY OF THE NEW TITLE 18, U.S.C., IN 1948, ANY ATTEMPT
TO TANGLE IN THAT SAME THREAD SEC. 1979 - A STATUTE WHICH HAS NOT BEEN
TOUCHED BY CONGRESS IN THREE QUARTERS OF A CENTURY - WOULD EXCEED THE
BOUNDS OF FICTIONALLY IMPLIED LEGISLATIVE ADOPTION. 

FN31  E.G., UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258;
UNITED STATES V. C.I.O., 335 U.S. 106; UNITED STATES V. HARRISS, 347
U.S. 612; PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672; GALVAN V.
PRESS, 347 U.S. 522; TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448. 

FN32  THE ACT OF SEPTEMBER 9, 1957, 71 STAT. 634, 637, PROVIDES THAT
"NO PERSON, WHETHER ACTING UNDER COLOR OF LAW OR OTHERWISE, SHALL
INTIMIDATE, THREATEN, COERCE, OR ATTEMPT TO INTIMIDATE, THREATEN, OR
COERCE ANY OTHER PERSON FOR THE PURPOSE OF INTERFERING WITH THE RIGHT
OF SUCH OTHER PERSON TO VOTE" AT ANY ELECTION HELD SOLELY OR IN PART
FOR THE PURPOSE OF SELECTING OR ELECTING CANDIDATES FOR DESIGNATED
FEDERAL OFFICES.  SUCH AN ENACTMENT, OF COURSE, CAN IN NO CONCEIVABLE
MANNER BE CONSIDERED CONGRESSIONAL "ADOPTION" OR APPROBATION OF THIS
COURT'S CONSTRUCTIONS OF THE "UNDER COLOR" CLAUSE IN CLASSIC, SCREWS
AND WILLIAMS, FOR THE SUFFICIENT REASON (AMONG OTHERS) THAT THE STATUTE
EMPLOYS THE CLAUSE ONLY TO GO BEYOND IT - MANIFESTING A PURPOSE,
THROUGH THE EXPRESSION "UNDER COLOR OF LAW OR OTHERWISE," TO REACH ALL
INDIVIDUAL CONDUCT OF THE CLASS DESCRIBED, WHETHER OR NOT "UNDER COLOR"
OF LAW, AND WHATEVER "UNDER COLOR" OF LAW MAY MEAN.  SEE H.R. REP. NO.
291, 85TH CONG., 1ST SESS.  12.  THE PROVISIONS OF H.R. 627, 84TH
CONG., 2D SESS., AS REPORTED FROM THE HOUSE COMMITTEE ON THE JUDICIARY
AND MADE THE SUBJECT OF H.R. REP. NO. 2187, 84TH CONG., 2D SESS., ARE
SIMILAR.  SEE ESPECIALLY ID., AT 9-11. 

THE CIVIL RIGHTS ACT OF 1960, 74 STAT. 86, 88-89, 90, DOES TWICE USE
THE CLAUSE "UNDER COLOR OF (LAW)," BUT IN CONTEXTS WHOLLY DIFFERENT
FROM THAT OF R.S. SEC. 1979.  SECTION 301 OF THE 1960 ACT REQUIRES
EVERY "OFFICER OF ELECTION" TO RETAIN AND PRESERVE DURING A SPECIFIED
PERIOD ALL RECORDS AND PAPERS WHICH COME INTO HIS POSSESSION RELATING
TO ACTS REQUISITE TO VOTING AT AN ELECTION WHEREIN CANDIDATES FOR
DESIGNATED FEDERAL OFFICES ARE VOTED FOR.  SECTION 306 (WHICH COMPRISES
THE ONLY USE OF "UNDER COLOR" LANGUAGE IN THE HOUSE BILL THAT WAS THE
SUBJECT OF H.R. REP. NO. 956, 86TH CONG., 1ST SESS.) DEFINES AN
"OFFICER OF ELECTION" AS "ANY PERSON WHO, UNDER COLOR OF ANY FEDERAL,
STATE, COMMONWEALTH, OR LOCAL LAW, STATUTE, ORDINANCE, REGULATION,
AUTHORITY, CUSTOM, OR USAGE, PERFORMS OR IS AUTHORIZED TO PERFORM ANY
FUNCTION, DUTY, OR TASK IN CONNECTION WITH ANY APPLICATION,
REGISTRATION, PAYMENT OF POLL TAX, OR OTHER ACT REQUISITE TO VOTING" IN
ANY ELECTION AT WHICH VOTES ARE CAST FOR CANDIDATES FOR THOSE
DESIGNATED FEDERAL OFFICES.  THESE PROVISIONS, LIKE THOSE OF THE 1957
ACT, ARE OF VERY LIMITED SCOPE, REACHING ONLY CERTAIN CONDUCT AFFECTING
FEDERAL ELECTIONS.  SECTION 601 OF THE 1960 ACT PROVIDES THAT IN ANY
PROCEEDING INSTITUTED BY THE ATTORNEY GENERAL FOR PREVENTIVE RELIEF
AGAINST THE DEPRIVATION, ON ACCOUNT OF RACE OR COLOR, OF CERTAIN VOTING
RIGHTS, SEE R.S. SEC. 2004, AS AMENDED BY THE ACT OF SEPTEMBER 9, 1957,
71 STAT. 634, 637, 42 U.S.C. SEC. 1971, THE COURT SHALL, ON PROPER
REQUEST, MAKE A FINDING WHETHER SUCH DEPRIVATION WAS OR IS PURSUANT TO
A PATTERN OR PRACTICE.  IF THE COURT FINDS SUCH A PATTERN OR PRACTICE,
ANY PERSON OF THAT RACE OR COLOR RESIDENT WITHIN THE AFFECTED AREA IS
ENTITLED, DURING A SPECIFIED PERIOD, TO AN ORDER DECLARING HIM
QUALIFIED TO VOTE, "UPON PROOF THAT AT ANY ELECTION OR ELECTIONS (1) HE
IS QUALIFIED UNDER STATE LAW TO VOTE, AND (2) HE HAS SINCE SUCH FINDING
BY THE COURT BEEN (A) DEPRIVED OF OR DENIED UNDER COLOR OF LAW THE
OPPORTUNITY TO REGISTER TO VOTE OR OTHERWISE TO QUALIFY TO VOTE, OR (B)
FOUND NOT QUALIFIED TO VOTE BY ANY PERSON ACTING UNDER COLOR OF LAW." 
WHATEVER MEANING "UNDER COLOR OF LAW" MAY HAVE AS SO EMPLOYED,
CONGRESS' USE OF THE PHRASE IN THIS NARROWLY LIMITED CONTEXT - APPLYING
TO A SITUATION IN WHICH VOTING RIGHTS HAVE BEEN INFRINGED ON GROUNDS OF
RACE OR COLOR PURSUANT TO A PATTERN OR PRACTICE - CANNOT REASONABLY BE
TAKEN AS INDICATIVE OF CONGRESSIONAL ATTITUDE TOWARD ONE OR ANOTHER
POSSIBLE CONSTRUCTION OF "UNDER COLOR" IN THE SWEEPING CONTEXT OF R.S.
SEC. 1979. 

ALL THIS IS SAID QUITE APART FROM THE CONSIDERATION OF HOW LITTLE
WEIGHT MAY PROPERLY BE GIVEN TO INFERENCES DRAWN FROM THE SILENCE OF
MINORITY REPORTS OF CONGRESSIONAL COMMITTEES, ESPECIALLY COMMITTEES
SITTING ALMOST A CENTURY AFTER THE ENACTMENT OF THE LEGISLATION IN
QUESTION. 

FN33  PEOPLE V. GROD, 385 ILL. 584, 53 N.E.2D 591; PEOPLE V. DALPE,
371 ILL. 607, 21 N.E.2D 756; PEOPLE V. BROCAMP, 307 ILL. 448, 138 N.E.
728.  SEE ILL. REV. STAT., C. 38, SECS. 691-699 (1959); ILL. CONST.,
ART. II, SEC. 6. 

FN34  SEE BUCHER V. KRAUSE, 200 F.2D 576 (C.A. 7TH CIR.). 

FN35  SEE CONG. GLOBE, 39TH CONG., 1ST SESS. 474, 602, 1117-1118;
1123-1124, 1151, 1159-1160, 1758-1759.  SEE 1 FLEMING, DOCUMENTARY
HISTORY OF RECONSTRUCTION (REPRINT 1950) 273-311; 2 COMMAGER, DOCUMENTS
OF AMERICAN HISTORY (6TH ED. 1958) 2-7, FOR TYPICAL BLACK CODE
PROVISIONS.  A MORE DISPASSIONATE APPRAISAL OF THE CODES THAN WAS
POSSIBLE DURING THE TURBULENCE OF RECONSTRUCTION IS FOUND IN RANDALL,
THE CIVIL WAR AND RECONSTRUCTION (1937) 724-730. 

FN36  CONG. GLOBE, 39TH CONG., 1ST SESS. 1680.  SEE ALSO ID., AT
1266.  LIGHT IS THROWN UPON THIS DISTINCTION BETWEEN THE DEPRIVATION OF
A RIGHT AND ITS VIOLATION - DEPRIVATION BEING COMPETENT TO THE LAW
MAKING AND LAW-ENFORCING ORGANS OF A STATE - BY COMPARISON OF THE
LANGUAGE OF SEC. 1979, ESTABLISHING LIABILITY FOR THE "DEPRIVATION OF
ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION  ...
," 17 STAT. 13, WITH THE PROVISIONS OF THE CRIMINAL CONSPIRACY SECTION
OF THE 1870 ACT, PENALIZING CONSPIRACIES TO INTIMIDATE ANY PERSON IN
ORDER TO "HINDER HIS FREE EXERCISE AND ENJOYMENT OF ANY RIGHT OR
PRIVILEGE GRANTED OR SECURED TO HIM BY THE CONSTITUTION."  16 STAT.
140, 141.  CF. CIVIL RIGHTS CASES, 109 U.S. 3, 17-18. 

FN37  SENATOR TRUMBULL HAD INTRODUCED THE BILL.  CONG. GLOBE, 39TH
CONG., 1ST SESS. 129. 

FN38  CONG. GLOBE, 39TH CONG., 1ST SESS. 1758. 

FN39  CONG. GLOBE, 41ST CONG., 2D SESS. 3663.  MR. SHERMAN'S REMARKS
WERE ADDRESSED NOT SPECIFICALLY TO THE SECTION WHICH PARALLELED THE
1866 "UNDER COLOR" LANGUAGE, BUT TO THE WHOLE OF THE PENDING SENATE
AMENDMENT, A SUBSTITUTE FOR THE HOUSE BILL.  COMPARE ID., AT 3561 WITH
ID., AT 3503.  IT WAS FROM THE SENATE AMENDMENT, CONTAINING AN "UNDER
COLOR" PROVISION MODELED ON SEC. 2 OF THE ACT OF 1866, THAT THE 1870
ACT, AS FINALLY ENACTED, IMMEDIATELY DERIVED. 

FN40  17 STAT. 13. 

FN41  CONG. GLOBE, 42D CONG., 1ST SESS., APP. 68.  MR. SHELLABARGER
WAS THE CHAIRMAN OF THE HOUSE SELECT COMMITTEE WHICH DRAFTED THE KU
KLUX ACT.  IN REPORTING IT OUT OF COMMITTEE, HE DESCRIBED ITS FIRST
CIVIL RIGHTS ACT OF 1866.  IBID.  IN DEBATE ON THE 1866 ACT
SHELLABARGER HAD SAID THAT THE EARLIER PROVISION WAS MEANT "NOT TO
USURP THE POWERS OF THE STATES TO PUNISH OFFENSES GENERALLY AGAINST THE
RIGHTS OF CITIZENS IN THE SEVERAL STATES, BUT ITS WHOLE FORCE IS
EXPENDED IN DEFEATING AN ATTEMPT, UNDER STATE LAWS, TO DEPRIVE RACES
AND THE MEMBERS THEREOF AS SUCH OF THE RIGHTS ENUMERATED IN THIS ACT." 
CONG. GLOBE, 39TH CONG., 1ST SESS. 1294.    FN42  CONG. GLOBE, 42D
CONG., 1ST SESS. 697. 

FN43  ID., AT 808. 

FN44  THE CLAIM WAS SEVERAL TIMES REPEATED IN DEBATE THAT THE BILL
OPERATED TO ABSORB "THE ENTIRE JURISDICTION OF THE STATES OVER THEIR
LOCAL AND DOMESTIC AFFAIRS," ID., AT 366, OR THAT IT WOULD BRING
"PRIVATE GRIEVANCES TO THE FEDERAL COURTS."  ID., AT 395.  WITH VERY
FEW EXCEPTIONS (IBID., ID., AT 361, 429, APP. 91) THESE CRITICISMS WERE
NOT DIRECTED TO THE ACT'S FIRST SECTION, NOW SEC. 1979.  SEE ALSO ID.,
AT 416, 510, 660, APP. 160, 179, 241-243, 258.  ONE OPPOSITION SPEAKER
DID OBJECT SPECIFICALLY TO SEC. 1 AS PROVIDING A FEDERAL FORUM FOR THE
DEPRIVATION OF A SUITOR'S RIGHTS ALTHOUGH "THE OFFENSES COMMITTED
AGAINST HIM MAY BE THE COMMON VIOLATIONS OF THE MUNICIPAL LAW OF HIS
STATE."  ID., AT APP. 50.  AND ONE SUPPORTER OF THE MEASURE, WHO ARGUED
THAT THE FOURTEENTH AMENDMENT GAVE CONGRESS POWER TO ENACT A GENERAL
CRIMINAL LAW, IF NECESSARY, FOR THE PROTECTION OF CITIZENS UNDER THE
PRIVILEGES AND IMMUNITIES, DUE PROCESS, AND EQUAL PROTECTION CLAUSES,
SAID OF SEC. 2 OF THE ACT OF 1866, THE MODEL FOR SEC. 1 OF THE 1871
ACT, THAT IT PUNISHED ACTS WHICH WOULD OTHERWISE BE "MERE MISDEMEANORS"
AT STATE LAW.  ID., AT 504.  BUT THESE TWO REMARKS ARE THE ONLY
ASSERTIONS, THROUGHOUT HUNDREDS OF PAGES OF DEBATE, THAT SEC. 1 MIGHT
REACH CONDUCT WHICH STATE LAW PROSCRIBED.  PROPONENTS OF THE BILL,
ADDRESSING THEMSELVES TO THE CHARGE OF FEDERAL OVERREACHING, INSISTED
THAT THEY COULD SUPPORT THE MEASURE ONLY BECAUSE THEY UNDERSTOOD THAT
IT DID NOT PRESUME TO ENTER UPON THAT REALM OF PROTECTION OF RIGHTS
TRADITIONALLY RESERVED TO THE STATES.  ID., AT 800.  SEE NOTES 47-50,
INFRA.  AND SEE THE STATEMENT OF SENATOR EDMUNDS, ID., AT 697-698:
"(THE BILL) DOES NOT UNDERTAKE TO INTERPOSE ITSELF OUT OF THE REGULAR
ORDER OF THE ADMINISTRATION OF LAW.  IT DOES NOT ATTEMPT TO DEPRIVE ANY
STATE OF THE HONOR WHICH IS DUE TO THE PUNISHMENT OF CRIME." 

FN45  ID., AT 317.  ANY ACT TO EFFECT THE OBJECT OF THE CONSPIRACY
RENDERED ALL THE CONSPIRATORS GUILTY OF A FELONY. 

FN46  THE IMPETUS FOR THE ENACTMENT OF THE KU KLUX ACT WAS PRESIDENT
GRANT'S MESSAGE TO CONGRESS ASSERTING THAT A CONDITION THEN EXISTED IN
SOME STATES WHICH RENDERED LIFE AND PROPERTY INSECURE AND WHICH WAS
BEYOND THE POWER OF STATE AUTHORITIES TO CONTROL.  SEE ID., AT APP.
226.  THROUGHOUT THE DEBATES ON THE BILL THE NOTE WAS REPEATED:  THERE
WAS A NEED FOR FEDERAL ACTION TO SUPPLANT STATE ADMINISTRATION WHICH
WAS FAILING TO PROVIDE EFFECTIVE PROTECTION FOR PRIVATE RIGHTS.  ID.,
AT 345, 368, 374, 428, 444, 457-459, 460, 476, 505-506, 653, APP. 78,
167, 185, 248-249, 252.  CONSTITUTIONAL AUTHORITY FOR SUCH FEDERAL
ACTION WAS SOUGHT IN THE LOGIC THAT "STATES" WERE ORDERED BY THE
FOURTEENTH AMENDMENT NOT TO "DENY" EQUAL PROTECTION OF THE LAWS; THAT A
"STATE" IN EFFECT DENIED SUCH PROTECTION NOT ONLY WHEN ITS LEGISLATION
WAS ON ITS FACE UNEQUAL, BUT WHENEVER ITS JUDICIAL OR EXECUTIVE
AUTHORITIES BY A CONSISTENT COURSE OF PRACTICE, "PERMANENTLY AND AS A
RULE" REFUSED TO ENFORCE ITS LAWS FOR THE PROTECTION OF SOME CLASS OF
PERSONS.  ID., AT 334.  SEE ID., AT 416, 482, 505-506, 606-608, 697,
APP. 251-252, 315.  BUT WHAT WAS DEEMED THE PREREQUISITE TO VALIDITY OF
CONGRESSIONAL ACTION IN IMPLEMENTATION OF THE AMENDMENT UNDER THIS
THEORY WAS NO LESS THAN A STATE'S PERMITTING "THE RIGHTS OF CITIZENS TO
BE SYSTEMATICALLY TRAMPLED UPON WITHOUT COLOR OF LAW," ID., AT 375; "A
SYSTEMATIC FAILURE TO MAKE ARRESTS, TO PUT ON TRIAL, TO CONVICT, OR TO
PUNISH OFFENDERS."  ID., AT 459.  THE NATIONAL GOVERNMENT WAS THOUGHT
POWERLESS TO INTERVENE TO REGULATE "A MERE ASSAULT AND BATTERY, OR
ARSON, OR MURDER  ...  .  THE LAW IS BELIEVED TO BE SUFFICIENT TO COVER
SUCH CASES, AND THE OFFICERS OF JUSTICE AMPLY ABLE TO ARREST AND PUNISH
THE OFFENDERS."  ID., AT 457.  SEE ALSO MR. PERRY'S ASSERTION, ID., AT
APP. 79, THAT THE WRONGS WHICH CONGRESS MAY REMEDY "ARE NOT INJURIES
INFLICTED BY MERE INDIVIDUALS OR UPON ORDINARY RIGHTS OF INDIVIDUALS,"
BUT INJURIES INFLICTED "UNDER COLOR OF STATE AUTHORITY OR BY
CONSPIRACIES AND UNLAWFUL COMBINATIONS WITH AT LEAST THE TACIT
ACQUIESCENCE OF THE STATE AUTHORITIES."  WRONGS SUSCEPTIBLE OF ADEQUATE
REDRESS BEFORE THE STATE COURTS EVIDENTLY DID NOT CONCERN CONGRESS, AND
CONGRESS IN 1871 DID NOT ATTEMPT TO REACH THOSE WRONGS. 

FN47  GENERAL GARFIELD, ID., AT APP. 154:  "IN SO FAR AS THIS SECTION
PUNISHES PERSONS WHO UNDER COLOR OF ANY STATE LAW SHALL DENY OR REFUSE
TO OTHERS THE EQUAL PROTECTION OF THE LAWS, I GIVE IT MY CHEERFUL
SUPPORT; BUT WHEN WE PROVIDE BY CONGRESSIONAL ENACTMENT TO PUNISH A
MERE VIOLATION OF A STATE LAW, WE PASS THE LINE OF CONSTITUTIONAL
AUTHORITY."  (THIS OBJECTION IS TAKEN SPECIFICALLY TO SEC. 3 OF THE
ACT, AUTHORIZING FEDERAL EXECUTIVE INTERVENTION UNDER CERTAIN
CIRCUMSTANCES.)  SEE ALSO, E.G., ID., AT APP. 113-116:  MR. FARNSWORTH,
WHO HAD NO OBJECTION TO SEC. 1, NOW SEC. 1979, VIGOROUSLY OPPOSED SEC.
2 AS EXTENDING TO ENCOMPASS INDIVIDUAL ACTION.  FARNSWORTH REGARDED THE
FOURTEENTH AMENDMENT AS DIRECTED EXCLUSIVELY TO THE DISCRIMINATIONS OF
STATE LEGISLATION, AND HIS APPROVAL OF SEC. 1 INDICATES HIS
UNDERSTANDING THAT IT REFERRED TO CONDUCT AUTHORIZED BY SUCH
LEGISLATION.  GARFIELD SEEMS TO HAVE AGREED THAT SEC. 1 DID NOT REACH
EVEN SYSTEMATIC MALADMINISTRATION OF STATE LAW FAIR ON ITS FACE.  SEE
ID., AT APP. 153. 

FN48  MR. SHELLABARGER PROPOSED THE AMENDMENT TO SEC. 2, ID., AT 477,
TO MEET THE CONSTITUTIONAL OBJECTIONS WHICH THE ORIGINAL FORM OF THAT
MEMBERS OF THE MAJORITY PARTY THEREUPON WITHDREW THEIR OPPOSITION TO
THE BILL.  SEE ID., AT 514, APP. 187-190, 231, 313-315.  THE FORM OF
THE SECOND SECTION AS IT WAS FINALLY ENACTED IS, IN RELEVANT PART,
SUBSTANTIALLY THAT OF R.S. SEC. 1980, 42 U.S.C. SEC. 1985:  "IF TWO OR
MORE PERSONS IN ANY STATE  ...  CONSPIRE  ...  FOR THE PURPOSE OF
DEPRIVING, EITHER DIRECTLY OR INDIRECTLY, ANY PERSON OR CLASS OF
PERSONS OF THE EQUAL PROTECTION OF THE LAWS, OR OF EQUAL PRIVILEGES AND
IMMUNITIES UNDER THE LAWS; OR FOR THE PURPOSE OF PREVENTING OR
HINDERING THE CONSTITUTED AUTHORITIES OF ANY STATE  ... FROM GIVING OR
SECURING TO ALL PERSONS WITHIN SUCH STATE  ...  THE EQUAL PROTECTION OF
THE LAWS; (AND) IF ONE OR MORE PERSONS ENGAGED THEREIN DO, OR CAUSE TO
BE DONE, ANY ACT IN FURTHERANCE OF THE OBJECT OF SUCH CONSPIRACY,
WHEREBY ANOTHER IS INJURED IN HIS PERSON OR PROPERTY, OR DEPRIVED OF
HAVING AND EXERCISING ANY RIGHT OR PRIVILEGE OF A CITIZEN OF THE UNITED
STATES, THE PARTY SO INJURED OR DEPRIVED MAY HAVE AN ACTION FOR THE
RECOVERY OF DAMAGES, OCCASIONED BY SUCH INJURY OR DEPRIVATION, AGAINST
ANY ONE OR MORE OF THE CONSPIRATORS."  SEE 17 STAT. 13.  MR.
SHELLABARGER EMPHASIZED THAT THE PURPOSE OF THE CHANGE WAS TO MAKE THE
GIST OF THE OFFENSE A DEPRIVATION OF EQUALITY OF RIGHTS, NOT A
DEPRIVATION OF RIGHTS ALONE.  CONG. GLOBE, 42D CONG., 1ST SESS. 478. 

FN49  REPRESENTATIVE POLAND HAD ARGUED THE UNCONSTITUTIONALITY OF THE
ORIGINAL SEC. 2 ON THE GROUND THAT IT SOUGHT TO EXTEND FEDERAL
PROTECTION TO PRIVATE PERSONS AND PROPERTY, WHEREAS THE FOURTEENTH
AMENDMENT GUARANTEED ONLY EQUAL PROTECTION, LEAVING THE STATES FREE TO
PROTECT OR NOT TO PROTECT WHATEVER INTERESTS THEY CHOSE SO LONG AS THE
PROTECTION AFFORDED WAS NON-DISCRIMINATORY.  THE AMENDMENT OF SEC. 2
MET THIS OBJECTION, AND MR. POLAND SUPPORTED THE BILL, FINDING NO CAUSE
FOR CONCERN IN THE LANGUAGE OF SEC. 1.  ID., AT 514.  FOR OTHER
CONGRESSMEN WHO OPPOSED THE INITIAL FORM OF SEC. 2 BUT FOUND NO
CONSTITUTIONAL IMPEDIMENT TO ENACTMENT OF SEC. 1, SEE ID., AT 578-579
(TRUMBULL), APP. 86 (STORM), 150-154 (GARFIELD), 187-190 (WILLARD). 
FARNSWORTH OBJECTED TO EVEN THE AMENDED FORM OF SEC. 2, BUT VOICED NO
ADVERSE CRITICISM OF SEC. 1.  ID., AT 513.  SLATER, ALSO OPPOSING SEC.
2, ARGUED THAT IF CONGRESS COULD ASSERT GENERAL CRIMINAL JURISDICTION
IN THE STATES (AS HE CONTENDED THAT SECTION DID), IT COULD ALSO ASSERT
GENERAL CIVIL JURISDICTION IN PROTECTION OF PERSONS AND PROPERTY. 
APPARENTLY HE DID NOT REGARD SEC. 1 AS THREATENING SUCH AN ASSERTION. 
ID., AT APP. 304. 

THERE WAS IN FACT RELATIVELY LITTLE OPPOSITION TO SEC. 1.  SEE ID.,
AT 568.  MANY VOCIFEROUS OPPONENTS OF THE ACT DID NOT ASSAIL THAT
OBJECTIONS THERE WERE DID NOT SUGGEST THAT THE SECTION USURPED STATE
POWER BY ASSUMING A CONCURRENT AUTHORITY TO REDRESS STATE-LAW
VIOLATIONS, BUT, QUITE THE OPPOSITE, ATTACKED THE SECTION FOR
PENALIZING STATE JUDGES, LEGISLATORS AND ADMINISTRATIVE OFFICIALS
ACTING IN FULL OBEDIENCE TO STATE LAW, "UNDER A SOLEMN, OFFICIAL OATH,
THOUGH AS PURE IN DUTY AS A SAINT."  ID., AT 365. 

FN50  ID., AT APP. 315.  SEE ID., AT APP. 313-315. 

FN51  ID., AT 579. 

FN52  ID., AT 368 (SHELDON).  SEE ALSO ID., AT 501 (FRELINGHUYSEN). 

FN53 ID., AT APP. 277 (PORTER). 

FN54  ID., AT APP. 268 (SLOSS). 

FN55  ID., AT APP. 218. 

FN56  ID., AT APP. 216. 

FN57  ID., AT APP. 217.  ONE SIGNIFICANT OBJECTION MADE TO SEC. 1
REVEALS ITS OPPONENTS' COMPREHENSION OF ITS SCOPE.  IT WAS OBJECTED
THAT THE SECTION WAS UNNECESSARY INASMUCH AS UNDER AMENDMENT FOURTEEN
AND THE SUPREMACY CLAUSE THERE WAS NO LONGER ANY DANGER OF "VIOLATION
OF THE RIGHTS OF CITIZENS UNDER COLOR OF THE LAWS OF THE STATES."  ID.,
AT APP. 231 (BLAIR).  THE APPELLATE JURISDICTION OF THE SUPREME COURT
OF THE UNITED STATES UNDER SEC. 25 OF THE JUDICIARY ACT OF 1789,
PROVIDING FOR REVIEW ON WRIT OF ERROR OF STATE COURT JUDGMENTS
SUSTAINING STATE AUTHORITY AGAINST FEDERAL CONSTITUTIONAL CHALLENGE OR
STRIKING DOWN ASSERTED FEDERAL AUTHORITY, WAS REGARDED AS OFFERING
SUFFICIENT PROTECTION AGAINST THE DEPRIVATIONS OF RIGHTS COVERED BY
SEC. 1.  ID., AT APP. 86 (STORM). 

FN58  SEE NOTE 46, SUPRA. 

FN59  CONG. GLOBE, 42D CONG., 1ST SESS. 374. 

FN60  ID., AT 428. 

FN61  ID., AT 653. 

FN62  ID., AT APP. 315. 

FN63  ID., AT 505. 

FN64  ID., AT APP. 179. 

FN65  ID., AT 334. 

FN66  SEE NOTE 46, SUPRA. 

FN67  "THE FOURTEENTH AMENDMENT, ITSELF A HISTORICAL PRODUCT, DID NOT
DESTROY HISTORY FOR THE STATES  ...  ."  JACKMAN V. ROSENBAUM CO., 260
U.S. 22, 31. 

FN68  IN THE LAST TWENTY YEARS THE LOWER FEDERAL COURTS HAVE
ENCOUNTERED A VOLUME OF LITIGATION SEEKING CIVIL RIGHTS ACT REDRESS FOR
A VARIETY OF WRONGS RANGING FROM ARBITRARY REFUSAL BY HOUSING
DEPARTMENT OFFICIALS TO ISSUE ARCHITECT'S CERTIFICATES, BURT V. NEW
YORK, 156 F.2D 791 (C.A.2D CIR.), TO ALLEGEDLY MALICIOUS CHARGES MADE
BY A STATE GRAND JURY.  LYONS V. BAKER, 180 F.2D 893 (C.A. 5TH CIR.).
PLAINTIFFS HAVE SOUGHT REDRESS AGAINST THE SIGNERS OF A MANDAMUS
PETITION, PARTIES TO A STATE MANDAMUS PROCEEDING TO COMPEL CITY
COMMISSIONERS TO HOLD A LOCAL REFERENDUM, LYONS V. DEHON, 188 F.2D 534
(C.A. 5TH CIR.), AGAINST STATE OFFICIALS ADMINISTERING A LOCAL WPA
PROJECT FOR REFUSING TO EMPLOY THE PLAINTIFF AND INSTITUTING INSANITY
PROCEEDINGS AGAINST HIM, LOVE V. CHANDLER, 124 F.2D 785 (C.A. 8TH
CIR.), AGAINST ADVERSARIES AND JUDGE IN A STATE CIVIL JUDICIAL
PROCEEDING WHERE EGREGIOUS ERROR RESULTING IN HOLDING AGAINST
PLAINTIFFS WAS ALLEGED, BOTTONE V. LINDSLEY, 170 F.2D (C.A. 10TH CIR.);
CAMPO V. NIEMEYER, 182 F.2D 115 (C.A. 7TH CIR.); CF. MOFFETT V.
COMMERCE TRUST CO., 187 F.2D 242 (C.A. 8TH CIR.).  MOST COURTS HAVE
REFUSED TO CONVERT WHAT WOULD OTHERWISE BE ORDINARY STATE-LAW CLAIMS
FOR FALSE IMPRISONMENT OR MALICIOUS PROSECUTION OR ASSAULT AND BATTERY
INTO CIVIL RIGHTS CASES ON THE BASIS OF CONCLUSORY ALLEGATIONS OF
CONSTITUTIONAL VIOLATION.  LYONS V. WELTMER, 174 F.2D 473 (C.A. 4TH
CIR.); MCGUIRE V. TODD, 198 F.2D 60 (C.A. 5TH CIR.); CURRY V. RAGAN,
257 F.2D 449 (C.A. 5TH CIR.); DELOACH V. ROGERS, 268 F.2D 928 (C.A. 5TH
CIR.); AGNEW V. CITY OF COMPTON, 239 F.2D 226 (C.A. 9TH CIR.). 

FN69  SEE, E.G., VALLE V. STENGEL, 176 F.2D 697 (C.A. 3D CIR.), A
CASE WHICH DECIDES A NUMBER OF NOVEL AND DIFFICULT QUESTIONS OF FEDERAL
CONSTITUTIONAL LAW.  THE ALLEGED CONDUCT OF DEFENDANT SHERIFF WHICH WAS
HELD ACTIONABLE UNDER SEC. 1979 WAS IN VIOLATION OF STATE LAW. 

FN70  SEE FOOTE, TORT REMEDIES FOR POLICE VIOLATIONS OF INDIVIDUAL
RIGHTS, 39 MINN. L. REV.  493 (1955); BARRETT, EXCLUSION OF EVIDENCE
OBTAINED BY ILLEGAL SEARCHES - A COMMENT ON PEOPLE VS. CAHAN, 43 CAL.
L. REV. 565 (1955); CF. EDWARDS, CRIMINAL LIABILITY FOR UNREASONABLE
SEARCHES AND SEIZURES, 41 VA. L. REV. 621 (1955).  AND SEE, E.G., STATE
FOR USE BROOKS V. WYNN, 213 MISS.  306, 56 SO. 2D 824. 

FN71  THE COMMON LAW SEEMS STILL TO RETAIN SUFFICIENT FLEXIBILITY TO
FASHION ADEQUATE REMEDIES FOR LAWLESS INTRUSIONS.  COMPARE WITH THE
CASES CITED IN WOLF V. COLORADO 338 U.S. 25, 30, N. 1; BULL V.
ARMSTRONG, 254 ALA. 390, 48 SO. 2D 467 (1950); SARAFINI V. SAN
FRANCISCO, 143 CAL. APP. 2D 570, 300 P.2D 44 (1956); WARE V. DUNN, 80
CAL. APP. 2D 936, 183 P.2D 128 (1947); WALKER V. WHITTLE, 83 GA. APP.
445, 64 S.E.2D 87 (1951); JOHNSON V. ATLANTIC COAST LINE R. CO., 142
S.C. 125, 140 S.E. 443 (1927); DEADERICK V. SMITH, 33 TENN. APP. 151,
230 S.W.2D 406 (1950). 

FN72  THIS IS SO NOT ONLY BECAUSE OF THE PRACTICAL IMPEDIMENT TO
CIVIL RIGHTS ACT RELIEF WHICH WOULD BE POSED BY A TWO-SUIT REQUIREMENT,
BUT BECAUSE THE EFFICIENT PROCESS OF JUDICIAL ADMINISTRATION MIGHT WELL
REQUIRE THAT A PLAINTIFF PRESENT HIS FEDERAL CONSTITUTIONAL CONTENTION
TO THE STATE COURTS ALONG WITH HIS STATE-LAW CONTENTIONS, THAT HE THERE
ASSERT THE FEDERAL UNCONSTITUTIONALITY OF MAINTAINING THE DEFENSE OF
STATE AUTHORIZATION TO A STATE-LAW TORT ACTION.  CF. ANGEL V.
BULLINGTON, 330 U.S. 183.  OF COURSE, ONCE THAT FEDERAL CONTENTION IS
PROPERLY PRESENTED TO THE STATE COURTS, PLAINTIFF HAS OPEN FOR REVIEW
HERE AN ADVERSE STATE-COURT JUDGMENT; BUT IF PLAINTIFF WERE SUCCESSFUL
IN THIS COURT, THE EFFECT OF OUR DISPOSITION WOULD BE TO RETURN
PLAINTIFF TO THE STATE COURTS FOR A STATE-LAW MEASURE OF RELIEF. 
FN73  SEE NOTE 57, SUPRA.  CF. CIVIL RIGHTS CASES, 109 U.S. 3, 16.  AND
SEE NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362, 369:  "HERE
...  ALL THE ORGANS OF THE STATE ARE CONFORMING TO A PRACTICE,
SYSTEMATIC, UNBROKEN FOR MORE THAN FORTY YEARS, AND NOW QUESTIONED FOR
THE FIRST TIME.  IT WOULD BE A NARROW CONCEPTION OF JURISPRUDENCE TO
CONFINE THE NOTION OF 'LAWS' TO WHAT IS FOUND WRITTEN ON THE STATUTE
BOOKS, AND TO DISREGARD THE GLOSS WHICH LIFE HAS WRITTEN UPON IT.
SETTLED STATE PRACTICE CANNOT SUPPLANT CONSTITUTIONAL GUARANTEES, BUT
IT CAN ESTABLISH WHAT IS STATE LAW ...  .  DEEPLY EMBEDDED TRADITIONAL
WAYS OF CARRYING OUT STATE POLICY, SUCH AS THOSE OF WHICH PETITIONER
COMPLAINS, ARE OFTEN TOUGHER AND TRUER LAW THAN THE DEAD WORDS OF THE
WRITTEN TEXT." 

WHERE THE JURISDICTION OF A FEDERAL DISTRICT COURT IS INVOKED TO
VINDICATE A CLAIM UNDER SEC. 1979 AND WHERE THAT COURT FINDS THAT
DEFENDANTS' CONDUCT IS NOT UNDER COLOR OF STATE LAW, DIFFICULT
QUESTIONS MAY ALSO ARISE AS TO WHETHER THE COURT SHOULD NEVERTHELESS
DETERMINE THE RESPECTIVE RIGHTS OF THE PARTIES AT STATE LAW, UNDER THE
DOCTRINE OF HURN V. OURSLER, 289 U.S. 238, AND BELL V. HOOD, 327 U.S.
678.  BUT SEE CALIFORNIA WATER SERVICE CO. V. CITY OF REDDING, 304 U.S.
252; MASSACHUSETTS UNIVERSALIST CONVENTION V. HILDRETH & ROGERS CO.,
183 F.2D 497 (C.A. 1ST CIR.); ROBINSON V. STANLEY HOME PRODS.  INC.,
272 F.2D 601 (C.A. 1ST CIR.).  PETITIONERS IN THIS CASE HAVE NEVER
THROUGHOUT THE LITIGATION BELOW RAISED THE ISSUE OF THE POSSIBLE
APPLICATION OF THE HURN RULE TO THESE CIRCUMSTANCES, NOR IS THAT ISSUE
AMONG THE QUESTIONS PRESENTED IN THEIR PETITION FOR CERTIORARI HERE. 
UNDER OUR RULE 23, SUBPAR.  1(C) IT IS NOT NOW, THEREFORE, BEFORE THE
COURT, AND THERE IS NO INTENTION HERE TO INTIMATE ANY OPINION ON THE
NOVEL PROBLEM OF FEDERAL JURISDICTION OF STATE-LAW CLAIMS "PENDENT" TO
SUCH A CASE AS THIS.  SUFFICE IT TO SAY THAT WHATEVER APPLICATION HURN
MAY HAVE TO THESE SITUATIONS, ITS APPLICATION WILL ENTAIL A VERY
DIFFERENT LEVEL OF FEDERAL JUDICIAL INVOLVEMENT WITH THE ADJUDICATION
OF RIGHTS BETWEEN INDIVIDUALS IN A STATE THAN WOULD THE INTERPRETATION
OF SEC.  1979 WHICH PETITIONERS URGE.  WHATEVER INCURSION INTO AREAS OF
CONVENTIONALLY EXCLUSIVE STATE-COURT COMPETENCE JURISDICTION "PENDENT"
TO A SEC. 1979 CLAIM MIGHT ENTAIL WOULD TOUCH CONSIDERATIONS NOT
PECULIAR TO SEC. 1979, BUT RATHER WHICH CONCERN THE HURN DOCTRINE. 

FN74  SEE THE HISTORY OF SEC. 2 OF THE KU KLUX ACT DESCRIBED, SUPRA,
AT NOTES 44-50.  FOR AN EXCELLENT PICTURE OF THE BACKGROUND OF THIS
LEGISLATIVE STRUGGLE, SEE MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION
(1960). 

FN75  SEE, E.G., CONG. GLOBE, 42D CONG., 1ST SESS. 482, 505-506, 697,
APP. 81-86, 315. 

FN76  ID., AT APP. 68. 

FN77  SEE, E.G., LANE V. WILSON, 307 U.S. 268. 

FN78  SEE, E.G., THE PAGES OF DEBATE CITED IN NOTE 46, SUPRA. 

FN79  THAT SECTION GAVE THE DISTRICT AND CIRCUIT COURTS OF THE UNITED
STATES CONCURRENT JURISDICTION OF ALL CAUSES, CIVIL AND CRIMINAL,
"AFFECTING PERSONS WHO ARE DENIED OR CANNOT ENFORCE IN THE COURTS OR
JUDICIAL TRIBUNALS OF THE STATE OR LOCALITY WHERE THEY MAY BE ANY OF
THE RIGHTS SECURED TO THEM BY THE FIRST SECTION" OF THE 1866 ACT.  IT
FURTHER PROVIDED: "THE JURISDICTION IN CIVIL AND CRIMINAL MATTERS
HEREBY CONFERRED ON THE DISTRICT AND CIRCUIT COURTS OF THE UNITED
STATES SHALL BE EXERCISED AND ENFORCED IN CONFORMITY WITH THE LAWS OF
THE UNITED STATES, SO FAR AS SUCH LAWS ARE SUITABLE TO CARRY THE SAME
INTO EFFECT; BUT IN ALL CASES WHERE SUCH LAWS ARE NOT ADAPTED TO THE
OBJECT, OR ARE DEFICIENT IN THE PROVISIONS NECESSARY TO FURNISH
SUITABLE REMEDIES AND PUNISH OFFENCES AGAINST LAW, THE COMMON LAW, AS
MODIFIED AND CHANGED BY THE CONSTITUTION AND STATUTES OF THE STATE
WHEREIN THE COURT HAVING JURISDICTION OF THE CAUSE, CIVIL OR CRIMINAL,
IS HELD, SO FAR AS THE SAME IS NOT INCONSISTENT WITH THE CONSTITUTION
AND LAWS OF THE UNITED STATES, SHALL BE EXTENDED TO AND GOVERN SAID
COURTS IN THE TRIAL AND DISPOSITION OF SUCH CAUSE  ...  ."  ACT OF
APRIL 9, 1866, SEC. 3, 14 STAT. 27. 

FN80  EXCEPT, OF COURSE DURING THE TIME BETWEEN THE ACT OF FEBRUARY
13, 1801, SEC. 11, 2 STAT. 92, AND ITS REPEAL BY THE ACT OF MARCH 8,
1802, SEC. 1, 2 STAT. 132.  "FEDERAL QUESTION" JURISDICTION WAS
CONFERRED BY THE ACT OF MARCH 3, 1875, SEC. 1, 18 STAT. 470. 

FN81  RECOGNITION OF THIS SITUATION UNDERLIES THE COMMENTS OF
MESSRS.  BLAIR AND STORM, SEE NOTE 57, SUPRA, AND THE DEBATE AMONG
SENATORS EDMUNDS, TRUMBULL AND CARPENTER REFERRED TO IN THE CONCURRING
OPINION.  SEE ESPECIALLY CONG. GLOBE, 42D CONG., 1ST SESS. 576-578. 

FN82  THIS IS WHY MR. CARPENTER SPEAKS OF THE FOURTEENTH AMENDMENT'S
ENFORCEMENT CLAUSE AS WORKING "ONE OF THE FUNDAMENTAL, ONE OF THE
GREAT, THE TREMENDOUS REVOLUTIONS EFFECTED IN OUR GOVERNMENT BY THAT
ARTICLE OF THE CONSTITUTION."  ID., AT 577. 

FN83  SEE THE REMARKS OF MR. DAWES, A MEMBER OF THE COMMITTEE WHICH
REPORTED THE KU KLUX BILL, ID., AT 476: 

"THE FIRST REMEDY PROPOSED BY THIS BILL IS A RESORT TO THE COURTS OF
THE UNITED STATES.  IS THAT A PROPER PLACE IN WHICH TO FIND REDRESS FOR
ANY SUCH WRONGS?  IF THERE BE POWER TO CALL INTO THE COURTS OF THE
UNITED STATES AN OFFENDER AGAINST THESE RIGHTS, PRIVILEGES, AND
IMMUNITIES, AND HOLD HIM TO AN ACCOUNT THERE, EITHER CIVILLY OR
CRIMINALLY, FOR THEIR INFRINGEMENT, I SUBMIT TO THE CALM AND CANDID
JUDGMENT OF EVERY MEMBER OF THIS HOUSE THAT THERE IS NO TRIBUNAL SO
FITTED, WHERE EQUAL AND EXACT JUSTICE WOULD BE MORE LIKELY TO BE METED
OUT IN TEMPER, IN MODERATION, IN SEVERITY, IF NEED BE, BUT ALWAYS
ACCORDING TO THE LAW AND THE FACT, AS THAT GREAT TRIBUNAL OF THE
CONSTITUTION." 

AND SEE, E.G., THE REMARKS OF MR. COBURN, ID., AT 459-460: 

"WHENEVER, THEN, THERE IS A DENIAL OF EQUAL PROTECTION BY THE STATE,
THE COURTS OF JUSTICE OF THE NATION STAND WITH OPEN DOORS, READY TO
RECEIVE AND HEAR WITH IMPARTIAL ATTENTION THE COMPLAINTS OF THOSE WHO
ARE DENIED REDRESS ELSEWHERE.  HERE MAY COME THE WEAK AND POOR AND
DOWNTRODDEN, WITH ASSURANCE THAT THEY SHALL BE HEARD.  HERE MAY COME
THE MAN SMITTEN WITH MANY STRIPES AND ASK FOR REDRESS.  HERE MAY COME
THE NATION, IN HER MAJESTY, AND DEMAND THE TRIAL AND PUNISHMENT OF
OFFENDERS, WHEN ALL, ALL OTHER TRIBUNALS ARE CLOSED  ...  . 

"CAN THESE MEANS BE MADE EFFECTUAL?  CAN WE THUS SUPPRESS THESE
WRONGS?  I WILL SAY WE CAN BUT TRY.  THE UNITED STATES COURTS ARE
FURTHER ABOVE MERE LOCAL INFLUENCE THAN THE COUNTY COURTS; THEIR JUDGES
CAN ACT WITH MORE INDEPENDENCE, CANNOT BE PUT UNDER TERROR, AS LOCAL
JUDGES CAN; THEIR SYMPATHIES ARE NOT SO NEARLY IDENTIFIED WITH THOSE OF
THE VICINAGE; THE JURORS ARE TAKEN FROM THE STATE, AND NOT THE
NEIGHBORHOOD; THEY WILL BE ABLE TO RISE ABOVE PREJUDICES OR BAD
PASSIONS OR TERROR MORE EASILY.  THE MARSHAL, CLOTHED WITH MORE POWER
THAN THE SHERIFF, CAN MAKE ARRESTS WITH CERTAINTY, AND, WITH THE AID OF
THE GENERAL GOVERNMENT, CAN SEIZE OFFENDERS IN SPITE OF ANY BANDED AND
COMBINED RESISTANCE SUCH AS MAY BE EXPECTED.  THUS, AT LEAST, THESE
MEN, WHO DISREGARD ALL LAW, CAN BE BROUGHT TO TRIAL.  HERE WE STOP. 
THE COURT IS TO DO THE REST, ACTING UNDER ALL ITS SOLEMN OBLIGATIONS OF
DUTY TO COUNTRY AND GOD.  CAN WE TRUST IT, OR ARE WE AFRAID OF OUR OWN
INSTITUTIONS?  DOES THE GRIM SHADOW OF THE STATE STEP INTO THE NATIONAL
COURT, LIKE A GOBLIN, AND TERRIFY US? DOES THIS HARMLESS AND HELPLESS
GHOST DRIVE US FROM THAT TRIBUNAL - THE STATE THAT MOCKS AT JUSTICE,
THE STATE THAT LICENSES OUTLAWRY, THE STATE THAT STANDS DUMB WHEN THE
LASH AND THE TORCH AND THE PISTOL ARE LIFTED EVERY NIGHT OVER THE QUIET
CITIZEN?  WE BELIEVE THAT WE CAN TRUST OUR UNITED STATES COURTS, AND WE
PROPOSE TO DO SO." 

FN84  IT IS SUGGESTED THAT CONGRESS KNEW THERE EXISTED STATE
CONSTITUTIONAL GUARANTEES OF WHICH STATE LEGISLATION MIGHT FALL AFOUL,
AND THAT NEVERTHELESS THERE IS FOUND IN THE DEBATES NO "EXPLANATION OF
(THE) EXCEPTION TO THE GENERAL RULE" WHICH WOULD OBTAIN IF SEC. 1979
WERE APPLIED TO CONDUCT AUTHORIZED BY STATE STATUTE, ORDINANCE,
REGULATION, CUSTOM OR USAGE, BUT VIOLATIVE OF A STATE CONSTITUTION.  TO
REGARD SUCH AN APPLICATION AS AN "EXCEPTION" IS TO MISCONCEIVE THE
INCIDENCE OF SEC. 1979 BY REGARDING ITS OPERATION FROM THE WRONG
PERSPECTIVE.  THE QUESTION WHETHER OFFICIAL ACTION DOES OR DOES NOT
COME WITHIN THE STATUTE DEPENDS NOT UPON WHAT STATE LAW THE ACTION DOES
OR DOES NOT VIOLATE, BUT UPON WHAT STATE LAW DOES OR DOES NOT AUTHORIZE
THE ACTION.  THE STATE AUTHORIZATION AGAINST WHICH CONGRESS AIMED SEC.
1979 WAS AUTHORIZATION BY THE LIVING, FUNCTIONING LAW OF THE STATE, NOT
AUTHORIZATION IN STRICT CONFORMITY WITH WHAT MAY HAVE BECOME NO MORE
THAN AN UNHEEDED PATTERN OF WORDS UPON THE CLOSED PAGES OF A STATE'S
BOOKS OF LEGAL LEARNING.  IT MEANT TO REACH THOSE "DEEPLY EMBEDDED
TRADITIONAL WAYS OF CARRYING OUT STATE POLICY (WHICH)  ...  ARE OFTEN
TOUGHER AND TRUER LAW THAN THE DEAD WORDS OF THE WRITTEN TEXT," SEE
NOTE 73, SUPRA, AND IT WOULD BY ITS TERMS HAVE REACHED THE CASE
SUPPOSED BY MY BROTHER HARLAN NOT AS A MATTER OF EXCEPTION IN NEED OF
EXPLANATION, BUT BY ITS NATURAL LOGIC. 

FN85  SECTION 2 OF THE KU KLUX ACT ATTACHED CIVIL AND CRIMINAL
LIABILITY TO CONSPIRACY "FOR THE PURPOSE, EITHER DIRECTLY OR
INDIRECTLY, OF DEPRIVING ANY PERSON OR ANY CLASS OF PERSONS OF THE
EQUAL PROTECTION OF THE LAWS, OR OF EQUAL PRIVILEGES OR IMMUNITIES
UNDER THE LAWS, OR FOR THE PURPOSE OF PREVENTING OR HINDERING THE
CONSTITUTED AUTHORITIES OF ANY STATE FROM GIVING OR SECURING TO ALL
PERSONS WITHIN SUCH STATE THE EQUAL PROTECTION OF THE LAWS ...  ."  17
STAT. 13.  THE CIVIL PROVISIONS OF THIS SECTION WERE CARRIED FORWARD,
AS AMENDED, IN R.S. SEC. 1980, AND ARE NOW FOUND IN 42 U.S.C. SEC.
1985.  THE CRIMINAL PROVISIONS, CARRIED FORWARD IN R.S. SEC. 5519, WERE
DECLARED UNCONSTITUTIONAL IN UNITED STATES V. HARRIS, 106 U.S. 629, AND
BALDWIN V. FRANKS, 120 U.S. 678. 

FN86  SEE CONG. GLOBE 42D CONG., 1ST SESS. 478, APP. 315. 

FN87  THE FOURTEENTH AMENDMENT PROVIDES THAT NO STATE SHALL "DEPRIVE"
ANY PERSON OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW,
AND THAT NO STATE SHALL "DENY" TO ANY PERSON WITHIN ITS JURISDICTION
THE EQUAL PROTECTION OF THE LAWS.  IT IS CLEAR THAT THE FORTY-SECOND
CONGRESS BELIEVED THAT "DENIAL" COULD BE WORKED BY NON-ACTION, WHILE
"DEPRIVATION" REQUIRED ILL-ACTION; THUS, THAT THE SCOPE OF FEDERAL
ENFORCING POWER UNDER THE EQUAL PROTECTION CLAUSE REACHED FURTHER, IN
RESPECT OF SITUATIONS IN WHICH THERE WAS NO ASSERTION OF LEGITIMATE
STATE AUTHORITY, THAN DID THE EQUIVALENT SCOPE OF POWER UNDER THE DUE
PROCESS AND PRIVILEGES AND IMMUNITIES CLAUSES.  SEE, ID., AT 459, 482,
505-506, 514, 607-608, 697, APP. 251, 315.  THIS APPEARS TO BE WHY SEC.
2 WAS ACCEPTABLE IN ITS AMENDED, WHILE NOT IN ITS ORIGINAL, FORM. 

FN88  SNOWDEN V. HUGHES, 321 U.S. 1, 9; SEE ALSO LISENBA V.
CALIFORNIA, 314 U.S. 219, 226. 

FN89  I AGREE THAT THIS IS NOT THE APPROPRIATE OCCASION TO PASS UPON
THE CONSTRUCTION OF SEC. 1985. 

FN90  FOR AN APPRECIATION OF THE NATURE AND CHARACTER OF THE KU KLUX
KLAN AS IT APPEARED TO CONGRESS IN 1871, SEE S. REP. NO. 1, 42D CONG.,
1ST SESS., AND THE VOLUMINOUS REPORT OF THE JOINT SELECT COMMITTEE TO
INQUIRE INTO THE CONDITION OF AFFAIRS IN THE LATE INSURRECTIONARY
STATES, PUBLISHED AS S. REP. NO. 41, PTS.  1-13, AND H.R. REP. NO. 22,
PTS.  1-13, 42 CONG., 2D SESS. 

FN91  COMPARE PEOPLE V. FRUGOLI, 334 ILL. 324, 166 N.E. 129 (1929),
AND FULFORD V. O'CONNOR, 3 ILL. 2D 490, 121 N.E.2D 767 (1954), WITH
PEOPLE V. KELLY, 404 ILL. 281, 89 N.E.2D 27 (1949). 

FN92  IN CONSIDERING THE DETENTION OF MR. MONROE AS ISOLABLE FROM THE
INVASION OF THE MONROE HOME FOR PURPOSES OF APPLYING SEC. 1979, ONE
DOES NOT IGNORE THAT IN ITS TREATMENT OF COERCED-CONFESSION CASES AND
DEPRIVATION-OF-COUNSEL CASES COMING HERE FROM STATE COURTS, THIS COURT
HAS LOOKED TO THE WHOLE SEQUENCE OF ACTIVITY BY STATE AUTHORITIES
PERTINENT TO THE PROSECUTION OF A CRIMINAL DEFENDANT.  MALINSKI V. NEW
YORK, 324 U.S. 401, 412 (CONCURRING OPINION JOINED IN, AND MADE A
MAJORITY VIEW, AT 438); WATTS V. INDIANA, 338 U.S. 49; TURNER V.
PENNSYLVANIA, 338 U.S. 62; HARRIS V. SOUTH CAROLINA, 338 U.S. 68; GIBBS
V. BURKE, 337 U.S. 773.  BUT THESE CASES DIFFER FROM THE ONE AT BAR
PRECISELY IN THE FACT THAT THEY DO COME HERE AFTER THE SUSTAINING OF A
CRIMINAL CONVICTION BY THE HIGHEST COURT OF A STATE COMPETENT TO ACT IN
THE MATTER.  IN ALL SUCH CASES THE PROCESSES OF LAW ADMINISTRATION OF A
STATE HAVE RENDERED THE FINAL JUDGMENT OF STATE LAW, AND THE FEDERAL
QUESTION PRESENTED IS WHETHER THE CONVICTION HAS, IN LIGHT OF THE
TOTALITY OF THE EVENTS LEADING TO THAT CONVICTION, VIOLATED DUE
PROCESS.  THE QUESTION IN THE INSTANT CASE IS THE MUCH NARROWER ONE
WHETHER PETITIONERS HAVE ALLEGED CONDUCT "UNDER COLOR" OF STATE
AUTHORITY WHICH DEPRIVES THEM OF A FOURTEENTH AMENDMENT RIGHT, AND THUS
BROUGHT RESPONDENTS' CONDUCT WITHIN THE SPECIFIC REQUIREMENTS OF THE
STATUTE FOR INITIATING LITIGATION IN A FEDERAL DISTRICT COURT. 
..END :











SCHNELL V. PETER ECKRICH & SONS 365 U.S. 260 


NO. 219.  ARGUED JANUARY 11, 1961 - DECIDED FEBRUARY 20, 1961 - 279 F.2D
594, AFFIRMED. 


IN THIS PATENT INFRINGEMENT SUIT IN A FEDERAL DISTRICT COURT IN
INDIANA, AN ILLINOIS MANUFACTURER WHICH HAD NO PLACE OF BUSINESS IN
INDIANA WAS NAMED AS A PARTY DEFENDANT AFTER IT HAD OPENLY ASSUMED AND
CONTROLLED THE DEFENSE OF ITS CUSTOMER, AN INDIANA CORPORATION WHICH
HAD USED THE PATENTED DEVICE IN INDIANA.  HELD:  BY SO DOING, THE
ILLINOIS MANUFACTURER DID NOT, AS A MATTER OF LAW, SUBJECT ITSELF TO
THE JURISDICTION OF THE COURT IN INDIANA OR WAIVE THE STATUTORY VENUE
REQUIREMENTS OF 28 U.S.C. SEC. 1400(B).  PP. 260-264. 

SCHNELL ET AL. V. PETER ECKRICH & SONS, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE SOLE ISSUE IN THIS PATENT INFRINGEMENT SUIT, FILED IN THE
NORTHERN DISTRICT OF INDIANA, IS WHETHER AS A MATTER OF LAW RESPONDENT
ALLBRIGHT-NELL CO., AN ILLINOIS MANUFACTURER, BY OPENLY ASSUMING AND
CONTROLLING IN THIS ACTION THE DEFENSE OF ITS CUSTOMER, RESPONDENT
PETER ECKRICH & SONS, INC., OF INDIANA, SUBJECTED ITSELF TO THE
JURISDICTION OF THAT COURT AND WAIVED THE STATUTORY VENUE REQUIREMENTS
OF 28 U.S.C. SEC. 1400(B).  (FN1)  THE MOTION OF ALLBRIGHT-NELL TO
DISMISS AS TO IT BECAUSE VENUE IN THE NORTHERN DISTRICT OF INDIANA WAS
IMPROPER WAS SUSTAINED WITHOUT OPINION.  THE COURT OF APPEALS AFFIRMED,
279 F.2D 594.  (FN2)  WE GRANTED CERTIORARI, 364 U.S. 813.  WE AFFIRM
THE JUDGMENT. 

ALLBRIGHT-NELL MANUFACTURED THE ALLEGED INFRINGING DEVICE, A MACHINE
FOR CUTTING SAUSAGE MEAT, KNOWN AS THE "ANCO EMULSITATOR."  IT SOLD
SOME OF THE DEVICES TO ECKRICH, WHOSE PRINCIPAL PLACE OF BUSINESS WAS
AT FORT WAYNE, INDIANA.  IN THE CONTRACT OF SALE, ALLBRIGHT-NELL AGREED
TO DEFEND ANY INFRINGEMENT SUITS WHICH MIGHT BE FILED AGAINST ECKRICH
INVOLVING THE DEVICE AND TO BEAR ALL OF THE EXPENSE THEREOF, INCLUDING
ANY RECOVERY.  WHILE ECKRICH WAS USING THE MACHINES, PETITIONERS SUED
IT IN INDIANA FOR INFRINGEMENT.  (FN3)  PURSUANT TO ITS CONTRACT,
ALLBRIGHT-NELL EMPLOYED ATTORNEYS WHO DEFENDED THE SUIT IN THE NAME OF
ECKRICH.  THEREAFTER, BEFORE ANY JUDGMENT WAS ENTERED, PETITIONERS
AMENDED THEIR COMPLAINT, NAMING ALLBRIGHT-NELL AS A PARTY DEFENDANT. 
SERVICE WAS MADE UPON ALLBRIGHT-NELL BY SERVING ITS PRESIDENT IN
ILLINOIS.  MOTIONS TO QUASH (ON THE GROUND THAT SUCH SERVICE WAS MADE
OUTSIDE OF THE JURISDICTION OF THE COURT) AND TO DISMISS (ON THE GROUND
THAT VENUE UNDER SEC. 1400(B) WAS IMPROPER) WERE PROMPTLY FILED.  THE
PETITIONERS ADMIT THAT THIS SERVICE CONFERRED NO JURISDICTION ON THE
COURT AND ALSO CONCEDE THAT ALLBRIGHT-NELL HAD NO PLACE OF BUSINESS IN
INDIANA AND, THEREFORE, UNDER SEC. 1400(B), VENUE AS TO IT COULD NOT
LIE IN INDIANA.  HOWEVER, THEY URGE THAT THE PRESENCE OF ALLBRIGHT-NELL
THROUGH THE ATTORNEYS, OPENLY DEFENDING AND CONTROLLING THE SUIT
AGAINST ECKRICH, GAVE THE COURT JURISDICTION OVER THE FORMER.  (FN4)
IN EFFECT, PETITIONERS ARGUE, ALLBRIGHT-NELL WAS IN FACT BEFORE THE
COURT PROTECTING ITS OWN INTERESTS, WAS ACTING ONLY AS A "PUPPETEER" OF
ECKRICH, AND WAS SEEKING ALL THE BENEFITS OF LITIGATION BUT ATTEMPTING
TO AVOID ALL OF ITS RESPONSIBILITIES, SAVE THE ULTIMATE APPLICATION OF
RES JUDICATA.  IT, THEREFORE, SHOULD BE DEEMED TO HAVE ENTERED A
GENERAL APPEARANCE AND WAIVED ITS OBJECTION TO VENUE.  IN THE FACE OF
SEC. 1400(B), HOWEVER, WE THINK NOT. 

WHILE OBJECTION TO VENUE "MAY BE LOST BY FAILURE TO ASSERT IT
SEASONABLY, BY FORMAL SUBMISSION IN A CAUSE, OR BY SUBMISSION THROUGH
CONDUCT,  ...  COURTS AFFIX TO CONDUCT SUCH CONSEQUENCES AS TO PLACE OF
SUIT CONSISTENT WITH THE POLICY BEHIND" THE APPLICABLE VENUE STATUTE. 
NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165, 168.  AS IS POINTED OUT IN
THE CASES, CONGRESS ADOPTED THE PREDECESSOR TO SEC. 1400(B) AS A
SPECIAL VENUE STATUTE IN PATENT INFRINGEMENT ACTIONS TO ELIMINATE THE
"ABUSES ENGENDERED" BY PREVIOUS VENUE PROVISIONS ALLOWING SUCH SUITS TO
BE BROUGHT IN ANY DISTRICT IN WHICH THE DEFENDANT COULD BE SERVED. 
STONITE CO. V. MELVIN LLOYD CO., 315 U.S. 561.  THE ACT WAS DESIGNED
"TO DEFINE THE EXACT JURISDICTION OF THE  ...  COURTS IN THESE
MATTERS," AT P. 565, N. 5, AND NOT TO "DOVETAIL WITH THE GENERAL VENUE
PROVISIONS."  ID., 566.  AS LATE AS 1957 WE HAVE HELD SEC. 1400(B) TO
BE "THE SOLE AND EXCLUSIVE PROVISION CONTROLLING VENUE IN PATENT
INFRINGEMENT ACTIONS."  FOURCO GLASS CO. V. TRANSMIRRA PRODUCTS CORP.,
353 U.S. 222, 229 (1957).  THE LANGUAGE OF THIS SPECIAL STATUTE IS
CLEAR AND SPECIFIC.  THE PRACTICE COMPLAINED OF HERE WAS NOT AT ALL
UNUSUAL AT THE TIME OF THIS STATUTE'S PASSAGE, (FN5) AND FOR US TO
ENLARGE UPON THE MANDATE OF THE CONGRESS AS TO VENUE IN SUCH PATENT
ACTIONS WOULD BE AN INTRUSION INTO THE LEGISLATIVE FIELD. 

IN FACT, THE PETITIONERS WOULD HAVE US DO NOW WHAT THIS COURT
SPECIFICALLY REFUSED TO DO 45 YEARS AGO IN MERRIAM CO. V. SAALFIELD,
241 U.S. 22 (1916).  THERE THE ENTIRE DEFENSE OF THE NAMED DEFENDANT
(SAALFIELD) WAS OPENLY FINANCED AND CONTROLLED BY ONE OGILVIE, AS TO
WHOM VENUE WAS IMPROPER; MERRIAM SOUGHT BY SUPPLEMENTAL BILL TO MAKE
OGILVIE A DEFENDANT BEFORE A FINAL JUDGMENT WAS RENDERED, BUT AFTER THE
ISSUE OF UNFAIR COMPETITION HAD BEEN DECIDED; AND OGILVIE WOULD HAVE
BEEN BOUND BY THE FINAL JUDGMENT UNDER RES JUDICATA.  NEVERTHELESS, HIS
SEASONABLE MOTION TO QUASH THE SUBSTITUTED SERVICE HAD UPON THE
ATTORNEYS DEFENDING SAALFIELD WAS SUSTAINED.  WE BELIEVE THE HOLDING IN
MERRIAM COMPLETELY SUPPORTS OUR CONCLUSION HERE.  IF A GENERAL
APPEARANCE COULD BE FOUND IN SUCH CONDUCT, THE FACTS THERE WERE
STRONGER, FOR THE PROCEEDINGS AGAINST SAALFIELD, HANDLED ENTIRELY BY
OGILVIE, HAD PROGRESSED TO THE APPOINTMENT OF A MASTER TO DETERMINE THE
AMOUNT OF DAMAGES.  ALL THAT REMAINED WHEN IT WAS SOUGHT TO JOIN
OGILVIE WAS AN ACCOUNTING.  YET A UNANIMOUS COURT SUSTAINED THE
DISMISSAL, SAYING: 

"IF THE DECREE OF INJUNCTION AND ACCOUNTING  ...  WAS NOT FINAL AS
BETWEEN APPELLANT (MERRIAM CO.) AND SAALFIELD, IT CANNOT BE RES
JUDICATA AS AGAINST OGILVIE; AND THUS THE FUNDAMENTAL GROUND FOR
PROCEEDING AGAINST THE LATTER BY  ...  SUBSTITUTED SERVICE OF PROCESS
DISAPPEARS.  THIS SUFFICIENTLY SHOWS THE WEAKNESS OF APPELLANT'S
POSITION, WHICH, UPON ANALYSIS, IS FOUND TO BE THIS:  THAT UPON THE
THEORY THAT OGILVIE WOULD BE ESTOPPED BY A FINAL DECREE IF AND WHEN
MADE, IT SOUGHT TO BRING HIM INTO THE SUIT, BEFORE FINAL DECREE, AS IF
HE WERE ALREADY ESTOPPED.  HOWEVER CONVENIENT THIS MIGHT BE TO A
COMPLAINANT IN APPELLANT'S POSITION, IT IS INCONSISTENT WITH ELEMENTARY
PRINCIPLES."  AT PP. 28-29. 

PETITIONERS STRESS THAT HERE THE CONDUCT OF ALLBRIGHT-NELL CONTINUED
AFTER IT WAS NAMED A PARTY.  WE ARE NOT PERSUADED THAT THIS HAS ANY
BEARING UPON THE ISSUE TO BE DECIDED.  THE CONDUCT WHICH WILL AMOUNT TO
A WAIVER OF VENUE IS THAT OF THE DEFENDANT ALONE AND NOTHING A
PLAINTIFF MIGHT DO CAN CHANGE THE LEGAL CONSEQUENCES WHICH ATTACH TO
THAT CONDUCT.  CF. OLBERDING V. ILLINOIS CENTRAL R. CO., 346 U.S. 338. 
CERTAINLY THE POINT IN TIME AT WHICH PETITIONERS SOUGHT TO JOIN
ALLBRIGHT-NELL WILL CONTROL THE AMOUNT OF ITS TOTAL ACTIVITIES WHICH
WILL BE CONSIDERED IN DETERMINING WHETHER VENUE HAS BEEN WAIVED; BUT
THIS CANNOT ALTER THE CONCLUSIONS TO BE DRAWN FROM THAT CONDUCT. 
THEREFORE, WHETHER ALLBRIGHT-NELL'S ACTIONS TOOK PLACE BEFORE OR AFTER
BEING NAMED A PARTY IS IMMATERIAL TO THE QUESTION OF WAIVER UNDER THE
SPECIAL VENUE PROVISIONS OF SEC. 1400(B). 

PETITIONERS INSIST THAT THIS RESULT EXALTS FORM OVER SUBSTANCE.  WE
THINK NOT.  "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."  OLBERDING
V. ILLINOIS CENTRAL R. CO., SUPRA, AT 340.  AFFIRMED. 

FN1  28 U.S.C. SEC. 1400(B): 

"ANY CIVIL ACTION FOR PATENT INFRINGEMENT MAY BE BROUGHT IN THE
JUDICIAL DISTRICT WHERE THE DEFENDANT RESIDES, OR WHERE THE DEFENDANT
HAS COMMITTED ACTS OF INFRINGEMENT AND HAS A REGULAR AND ESTABLISHED
PLACE OF BUSINESS." 

FN2  THE APPEAL WAS ALLOWED UNDER 28 U.S.C. SEC. 1292(B) ON THE
CERTIFICATE OF THE DISTRICT COURT THAT THE ORDER DISMISSING ALLBRIGHT
NELL INVOLVED A CONTROLLING QUESTION OF LAW AND THAT IMMEDIATE APPEAL
WOULD MATERIALLY ADVANCE THE TERMINATION OF THE LITIGATION. 

FN3  SUBSEQUENTLY, A SECOND SUIT INVOLVING A DIFFERENT PATENT WAS
FILED IN THE SAME COURT, NAMING BOTH OF THE RESPONDENTS HERE AS
DEFENDANTS.  THE COURT ENTERED SIMILAR ORDERS IN IT, AND THE CASES WERE
CONSOLIDATED ON APPEAL. 

FN4  IT IS CONCEDED THAT ALLBRIGHT-NELL, BY OPENLY CONTROLLING THE
DEFENSE OF THIS SUIT, IN WHICH IT HAS AN INTEREST, WILL BE BOUND BY THE
FINAL JUDGMENT AND PRECLUDED BY RES JUDICATA, FROM RELITIGATING THE
SAME ISSUES.  SOUFFRONT V. LA COMPAGNIE DES SUCRERIES DE PORTO RICO,
217 U.S. 475; LOVEJOY V. MURRAY, 3 WALL.  1. 

FN5  SOME 30 YEARS PRIOR TO THAT TIME THIS COURT HAD OCCASION TO PASS
ON THE EFFECT OF SUCH CONDUCT WITH RELATION TO RES JUDICATA IN LOVEJOY
V. MURRAY, 3 WALL.  1, 19 (1865), WHICH HELD THAT ONE WHO CONTROLLED
THE DEFENSE IN A SUIT WAS PRECLUDED FROM RELITIGATING IN A SECOND
ACTION THE ISSUES ADJUDICATED IN THE FIRST. 
..END :






















COSTELLO V. UNITED STATES 365 U.S. 265 


NO. 59.  ARGUED DECEMBER 12, 1960 - DECIDED FEBRUARY 20, 1961 - 275 F.2D
355, AFFIRMED. 


PETITIONER WAS NATURALIZED IN 1925 AND PROCEEDINGS WERE INSTITUTED IN
1952 TO REVOKE HIS CITIZENSHIP BECAUSE OF FRAUDULENT PROCUREMENT.  THAT
PROCEEDING WAS DISMISSED BECAUSE THE GOVERNMENT HAD FAILED TO FILE AN
AFFIDAVIT OF GOOD CAUSE, AND THE DISTRICT COURT DECLINED TO SPECIFY
THAT THE DISMISSAL WAS "WITHOUT PREJUDICE."  A NEW PROCEEDING TO REVOKE
HIS CITIZENSHIP WAS INSTITUTED IN 1958 UNDER SEC. 340(A) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, ON THE GROUND THAT HIS
NATURALIZATION WAS PROCURED BY CONCEALMENT OF A MATERIAL FACT AND BY
WILLFUL MISREPRESENTATION.  IN APPLYING FOR NATURALIZATION, PETITIONER
HAD SWORN THAT HIS OCCUPATION WAS "REAL ESTATE."  AFTER CONSIDERING THE
EVIDENCE, THE DISTRICT COURT FOUND THAT THIS WAS "WILLFUL
MISREPRESENTATION AND FRAUD" AND THAT HIS TRUE OCCUPATION WAS
BOOTLEGGING, AND IT REVOKED HIS CITIZENSHIP.  HELD:  THE JUDGMENT IS
AFFIRMED.  PP. 266-288. 

1.  ON THE RECORD IN THIS CASE, THE FINDING THAT PETITIONER WILLFULLY
MISREPRESENTED HIS OCCUPATION IS SUPPORTED BY CLEAR, UNEQUIVOCAL AND
CONVINCING EVIDENCE - THE STANDARD OF PROOF REQUIRED OF THE GOVERNMENT
IN CASES SUCH AS THIS.  PP. 269-278. 

(A)  DECISIONS BOTH BEFORE AND AFTER REPEAL OF THE EIGHTEENTH
AMENDMENT INDICATE THAT A KNOWN BOOTLEGGER PROBABLY WOULD NOT HAVE BEEN
ADMITTED TO CITIZENSHIP IN 1925.  PP. 270-272. 

(B)  HOWEVER "OCCUPATION" BE DEFINED, WHETHER IN TERMS OF PRIMARY
SOURCE OF INCOME, EXPENDITURE OF TIME AND EFFORT, OR HOW THE PETITIONER
HIMSELF VIEWED HIS OCCUPATION, THE EVIDENCE SUPPORTS THE CONCLUSION
THAT REAL ESTATE WAS NOT HIS OCCUPATION AND THAT HE WAS, IN FACT, A
LARGE-SCALE BOOTLEGGER.  PP. 272-275. 

(C)  THERE IS EVIDENCE THAT PETITIONER INVESTED HIS ILLICIT EARNINGS
IN REAL ESTATE IN THE HOPE OF PROFIT; BUT HE WAS NOT DERIVING HIS
PRINCIPAL INCOME FROM THE REAL ESTATE BUSINESS, SPENDING ANY
APPRECIABLE TIME CONDUCTING SUCH BUSINESS OR MAKING IT HIS CENTRAL
BUSINESS CONCERN.  PP. 275-277. 

(D)  THE GOVERNMENT'S PROOFS SHOW NOT ONLY THAT THE PETITIONER'S
STATEMENTS WERE FACTUALLY INCORRECT BUT ALSO THAT THEY WERE WILLFULLY
FALSE.  P. 277. 

(E)  THE CONCLUSION THAT PETITIONER'S REPRESENTATIONS AS TO HIS
OCCUPATION WERE WILLFULLY FALSE IS REACHED WITHOUT RELIANCE UPON ANY
INFERENCE FROM HIS FAILURE TO TAKE THE STAND IN THIS PROCEEDING AND
TESTIFY IN HIS OWN BEHALF.  PP. 277-278. 

2.  NONE OF PETITIONER'S ADMISSIONS AS TO HIS TRUE OCCUPATION AT THE
TIME OF HIS NATURALIZATION WAS SO TAINTED BY WIRETAPPING AS TO REQUIRE
ITS EXCLUSION FROM EVIDENCE IN THE PROCEEDINGS FOR REVOCATION OF HIS
CITIZENSHIP.  PP. 278-280. 

3.  IN THE CIRCUMSTANCES OF THIS CASE, THE LAPSE OF 27 YEARS FROM THE
TIME OF PETITIONER'S NATURALIZATION TO THE TIME OF THE FILING IN 1952
OF THE GOVERNMENT'S FIRST DENATURALIZATION COMPLAINT DID NOT BAR THE
GOVERNMENT FROM INSTITUTING THIS PROCEEDING TO REVOKE HIS CITIZENSHIP. 
PP. 281-284. 

4.  DISMISSAL OF THE FIRST DENATURALIZATION PROCEEDING FOR FAILURE TO
FILE AN AFFIDAVIT OF GOOD CAUSE WAS A DISMISSAL "FOR LACK OF
JURISDICTION," WITHIN THE MEANING OF RULE 41(B) OF THE FEDERAL RULES OF
CIVIL PROCEDURE.  THEREFORE, THE FAILURE OF THE DISTRICT COURT TO
SPECIFY THAT THE DISMISSAL WAS "WITHOUT PREJUDICE" TO THE FILING OF A
NEW COMPLAINT DID NOT BAR THE SECOND DENATURALIZATION PROCEEDING UNDER
THAT RULE.  PP. 284-288. 

COSTELLO V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER BECAME A NATURALIZED CITIZEN ON SEPTEMBER 10, 1925. 
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK REVOKED HIS
CITIZENSHIP ON MARCH 9, 1959, IN THIS PROCEEDING BROUGHT BY THE
GOVERNMENT UNDER SEC. 340(A) OF THE IMMIGRATION AND NATIONALITY ACT OF
1952.  THAT ACT AUTHORIZES REVOCATION OF NATURALIZED CITIZENSHIP "ON
THE GROUND THAT SUCH ORDER AND CERTIFICATE OF NATURALIZATION WERE
PROCURED BY CONCEALMENT OF A MATERIAL FACT OR BY WILLFUL
MISREPRESENTATION  ... ."  (FN1)  THE PETITIONER, IN 1925, SWORE IN HIS
PRELIMINARY FORM FOR NATURALIZATION, IN HIS PETITION FOR
NATURALIZATION, AND WHEN HE APPEARED BEFORE A NATURALIZATION EXAMINER,
THAT HIS OCCUPATION WAS "REAL ESTATE."  THE DISTRICT COURT FOUND THAT
THIS WAS "WILLFUL MISREPRESENTATION AND FRAUD" AND THAT "HIS TRUE
OCCUPATION WAS BOOTLEGGING," 171 F. SUPP. 10, 16.  THE COURT OF APPEALS
FOR THE SECOND CIRCUIT AFFIRMED, 275 F.2D 355.  WE GRANTED CERTIORARI. 
362 U.S. 973. 

AN EARLIER DENATURALIZATION COMPLAINT BROUGHT UNDER 8 U.S.C. (1946
ED.)  SEC.  738(A), THE PREDECESSOR OF SEC. 340(A), WAS DISMISSED ON
THE GROUND THAT WIRETAPPING MAY HAVE INFECTED BOTH THE GOVERNMENT'S
AFFIDAVIT OF GOOD CAUSE AND ITS EVIDENCE.  UNITED STATES V. COSTELLO,
145 F. SUPP. 892.   THE COURT OF APPEALS FOR THE SECOND CIRCUIT
REVERSED ON THE GROUND THAT THE GOVERNMENT SHOULD HAVE BEEN AFFORDED AN
OPPORTUNITY TO SHOW THAT ITS EVIDENCE EITHER WAS UNTAINTED OR WAS
ADMISSIBLE IN ANY EVENT.  247 F.2D 384.  WE GRANTED CERTIORARI AND
REVERSED, 356 U.S. 256, ON A GROUND NOT CONSIDERED BELOW, NAMELY, THAT
THE AFFIDAVIT OF GOOD CAUSE, WHICH IS A PREREQUISITE TO THE INITIATION
OF DENATURALIZATION PROCEEDINGS UNDER SEC. 340(A), UNITED STATES V.
ZUCCA, 351 U.S. 91, WAS NOT FILED WITH THE COMPLAINT.  ON REMAND THE
DISTRICT COURT DECLINED TO ENTER AN ORDER OF DISMISSAL "WITHOUT
PREJUDICE" AND ENTERED AN ORDER WHICH DID NOT SPECIFY WHETHER THE
DISMISSAL WAS WITH OR WITHOUT PREJUDICE.  THE GOVERNMENT DID NOT APPEAL
FROM THAT ORDER BUT BROUGHT THIS NEW PROCEEDING UNDER SEC. 340(A) BY
AFFIDAVIT OF GOOD CAUSE AND COMPLAINT FILED ON MAY 1, 1958. 

THE PETITIONER ARGUES SEVERAL GROUNDS FOR REVERSAL OF THE ORDER
REVOKING HIS CITIZENSHIP.  HE CONTENDS:  (1) THAT THE FINDING THAT HE
WILLFULLY MISREPRESENTED HIS OCCUPATION IS NOT SUPPORTED BY CLEAR,
UNEQUIVOCAL, AND CONVINCING EVIDENCE, THE STANDARD OF PROOF REQUIRED OF
THE GOVERNMENT IN THESE CASES; (2) THAT SOME OF HIS ADMISSIONS AS TO
HIS TRUE OCCUPATION AT THE TIME OF HIS NATURALIZATION WERE TAINTED BY
WIRETAPPING, AND THUS WERE NOT EVIDENCE WHICH THE DISTRICT COURT MIGHT
RELY UPON IN REACHING ITS CONCLUSION; (3) THAT IN THE CIRCUMSTANCES OF
THIS CASE THE LAPSE OF 27 YEARS FROM THE TIME OF THE PETITIONER'S
NATURALIZATION TO THE TIME OF THE FILING IN 1952 OF THE GOVERNMENT'S
FIRST COMPLAINT SHOULD BE DEEMED TO BAR THE GOVERNMENT FROM INSTITUTING
THIS PROCEEDING; (4) THAT THE SECOND DENATURALIZATION PROCEEDING WAS
BARRED UNDER RULE 41(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE BY THE
FAILURE OF THE DISTRICT COURT ON REMAND OF THE FIRST PROCEEDING TO
SPECIFY THAT THE DISMISSAL WAS "WITHOUT PREJUDICE" TO THE FILING OF A
NEW COMPLAINT. 

WE FIND NO MERIT IN ANY OF THESE CONTENTIONS.  (FN2)  THE JUDGMENT OF
THE COURT OF APPEALS WILL BE AFFIRMED. 

                               I. 

THE GOVERNMENT CARRIES A HEAVY BURDEN OF PROOF IN A PROCEEDING TO
DIVEST A NATURALIZED CITIZEN OF HIS CITIZENSHIP.  AMERICAN CITIZENSHIP
IS A PRECIOUS RIGHT.  SEVERE CONSEQUENCES MAY ATTEND ITS LOSS,
AGGRAVATED WHEN THE PERSON HAS ENJOYED HIS CITIZENSHIP FOR MANY YEARS. 
SEE SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 122-123; NOWAK V.
UNITED STATES, 356 U.S. 660, 663.  IN CHAUNT V. UNITED STATES, 364 U.S.
350, 352-353, WE SAID: 

"ACQUISITION OF AMERICAN CITIZENSHIP IS A SOLEMN AFFAIR.  FULL AND
TRUTHFUL RESPONSE TO ALL RELEVANT QUESTIONS REQUIRED BY THE
NATURALIZATION PROCEDURE IS, OF COURSE, TO BE EXACTED, AND TEMPORIZING
WITH THE TRUTH MUST BE VIGOROUSLY DISCOURAGED.  FAILURE TO GIVE FRANK,
HONEST, AND UNEQUIVOCAL ANSWERS TO THE COURT WHEN ONE SEEKS
NATURALIZATION IS A SERIOUS MATTER.  COMPLETE REPLIES ARE ESSENTIAL SO
THAT THE QUALIFICATIONS OF THE APPLICANT OR HIS LACK OF THEM MAY BE
ASCERTAINED.  SUPPRESSED OR CONCEALED FACTS, IF KNOWN, MIGHT IN AND OF
THEMSELVES JUSTIFY DENIAL OF CITIZENSHIP.  OR DISCLOSURE OF THE TRUE
FACTS MIGHT HAVE LED TO THE DISCOVERY OF OTHER FACTS WHICH WOULD
JUSTIFY DENIAL OF CITIZENSHIP. 

"ON THE OTHER HAND, IN VIEW OF THE GRAVE CONSEQUENCES TO THE CITIZEN,
NATURALIZATION DECREES ARE NOT LIGHTLY TO BE SET ASIDE - THE EVIDENCE
MUST INDEED BE 'CLEAR, UNEQUIVOCAL, AND CONVINCING' AND NOT LEAVE 'THE
ISSUE  ...  IN DOUBT.'  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118,
125, 158; BAUMGARTNER V. UNITED STATES, 322 U.S. 665, 670.  THE ISSUE
IN THESE CASES IS SO IMPORTANT TO THE LIBERTY OF THE CITIZEN THAT THE
WEIGHT NORMALLY GIVEN CONCURRENT FINDINGS OF TWO LOWER COURTS DOES NOT
PRECLUDE RECONSIDERATION HERE  ...  ." 

IN 1925 A KNOWN BOOTLEGGER WOULD PROBABLY NOT HAVE BEEN ADMITTED TO
CITIZENSHIP.  DECISIONS BEFORE AND AFTER THE REPEAL OF THE EIGHTEENTH
AMENDMENT HELD THAT THE APPLICANT WHO TRAFFICKED IN THE SALE,
MANUFACTURE, OR TRANSPORTATION OF INTOXICATING LIQUORS DURING
PROHIBITION, WITHIN THE FIVE YEARS PRECEDING HIS APPLICATION, DID NOT
MEET THE STATUTORY CRITERION THAT AN APPLICANT MUST HAVE BEHAVED AS A
PERSON "OF GOOD MORAL CHARACTER, ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION OF THE UNITED STATES, AND WELL DISPOSED TO THE GOOD ORDER
AND HAPPINESS OF THE SAME."  ACT OF 1906, SEC. 4, 34 STAT. 596, 598. 

IN UNITED STATES V. DE FRANCIS, 60 APP. D.C. 207, 208, 50 F.2D 497,
498, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA STATED, "ANY
PERSON WHO VIOLATES THE PROVISIONS OF THE PROHIBITION ACT VIOLATES THE
PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES, AND CANNOT BE HELD
TO BE ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED
STATES.  NOR CAN IT BE SAID THAT SUCH A PERSON POSSESSES GOOD MORAL
CHARACTER." 

IN TURLEJ V. UNITED STATES, 31 F.2D 696, 699, IT WAS SAID, "FEW CASES
CAN BE FOUND WHERE APPLICANTS FOR CITIZENSHIP HAVE BEEN ADMITTED, IF
GUILTY OF VIOLATING LIQUOR LAWS WITHIN THE FIVE YEARS PRECEDING THE
HEARING, AND SUCH CASES HAVE BEEN SEVERELY CRITICIZED BY THE COURTS. 
THIS WAS TRUE EVEN BEFORE THE ADOPTION OF THE EIGHTEENTH AMENDMENT AS A
PART OF OUR NATIONAL CONSTITUTION."  SEE ALSO IN RE TRUM, 199 F. 361. 

IN UNITED STATES V. VILLANEUVA, 17 F. SUPP. 485, 487, THE COURT SAID,
"COURTS HAVE QUITE UNIVERSALLY HELD THAT VIOLATIONS OF PROHIBITION
LIQUOR LAWS, WHETHER NATIONAL OR STATE, SHOULD BE TAKEN INTO
CONSIDERATION IN DETERMINING QUESTIONS RESPECTING THE GOOD MORAL
CHARACTER OF APPLICANTS FOR CITIZENSHIP AND THEIR ATTACHMENT TO THE
PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES." 

IN UNITED STATES V. MIRSKY, 17 F.2D 275, A DENATURALIZATION CASE,
JUDGE THACHER OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, WHO HAD ADMITTED COSTELLO TO CITIZENSHIP LESS THAN A YEAR
EARLIER, SAID:  "ONE WHO DELIBERATELY VIOLATES THE EIGHTEENTH AMENDMENT
OF THE CONSTITUTION CANNOT BE SAID TO BE ATTACHED TO THE PRINCIPLE
DECLARED BY THAT AMENDMENT."  P. 275.  "NEITHER THE FACT THAT IN THIS
AND IN OTHER COMMUNITIES THERE ARE MANY CITIZENS WHO ARE NOT ATTACHED
IN THOUGHT OR DEED TO THE PRINCIPLE EMBODIED IN THE CONSTITUTION BY THE
EIGHTEENTH AMENDMENT, NOR THE FACT THAT OPPOSITION TO THAT PRINCIPLE
WITH A VIEW TO REMOVING IT FROM THE CONSTITUTION IS QUITE GENERALLY
THOUGHT TO BE THE PART OF GOOD CITIZENSHIP, CAN RELIEVE THIS COURT OF
ITS DUTY TO APPLY THE LAW AS IT IS NOW WRITTEN."  P. 276. 

SEE ALSO IN RE NAGY, 3 F.2D 77; IN RE RAIO, 3 F.2D 78; IN RE
PHILLIPS, 3 F.2D 79; IN RE BONNER, 279 F. 789; EX PARTE ELSON, 299 F.
352. 

SOME OF THESE CASES TURNED ON A FINDING OF ILLEGAL PROCUREMENT OF THE
CERTIFICATE BECAUSE OF DEMONSTRATED LACK OF ATTACHMENT TO THE
PRINCIPLES OF THE CONSTITUTION RATHER THAN UPON "FRAUD" UNDER 8 U.S.C.
(1946 ED.)  SEC.  738(A).  (FN3)  HOWEVER, THE CASES DEMONSTRATE THE
MATERIALITY OF THE CONCEALMENT BY THE PETITIONER OF HIS BOOTLEGGING IF
THAT IN FACT WAS HIS TRUE OCCUPATION.  SUCH CONCEALMENT WOULD SUPPORT
THE CONCLUSION THAT HE WAS AN APPLICANT WHO HAD "SUPPRESSED OR
CONCEALED FACTS  ...  WHICH ...  IF KNOWN, MIGHT IN AND OF THEMSELVES
JUSTIFY DENIAL OF CITIZENSHIP."  CHAUNT V. UNITED STATES, SUPRA, AT 352
353. 

WE HAVE EXAMINED THE RECORD TO DETERMINE IF THE EVIDENCE LEAVES "THE
ISSUE IN DOUBT," SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 158,
WHETHER THE PETITIONER PROCURED HIS NATURALIZATION BY WILLFULLY
MISREPRESENTING THAT HIS OCCUPATION WAS REAL ESTATE.  IT DOES NOT. 
HOWEVER OCCUPATION IS DEFINED, WHETHER IN TERMS OF PRIMARY SOURCE OF
INCOME, EXPENDITURE OF TIME AND EFFORT, OR HOW THE PETITIONER HIMSELF
VIEWED HIS OCCUPATION, WE REACH THE CONCLUSION THAT REAL ESTATE WAS NOT
HIS OCCUPATION AND THAT HE WAS IN FACT A LARGE-SCALE BOOTLEGGER. 

THE GOVERNMENT BUILT ITS CASE ON A SOLID FOUNDATION OF ADMISSIONS
MADE BY THE PETITIONER IN SEVERAL FEDERAL AND NEW YORK STATE INQUIRIES
BEGINNING IN 1938.  IN THAT YEAR HE ADMITTED TO A SPECIAL AGENT OF THE
BUREAU OF INTERNAL REVENUE THAT HE HAD ENGAGED IN THE ILLICIT LIQUOR
BUSINESS FROM 1923 OR 1924 UNTIL A YEAR OR TWO BEFORE THE REPEAL OF THE
EIGHTEENTH AMENDMENT IN 1933.  IN 1939 HE TESTIFIED BEFORE A FEDERAL
GRAND JURY IN THE SOUTHERN DISTRICT OF NEW YORK THAT "I DID A LITTLE
BOOTLEGGING  ...  .  THE LAST TIME WAS AROUND 1926."  IN 1943 HE
TESTIFIED BEFORE A NEW YORK COUNTY GRAND JURY THAT HE HAD BEEN IN THE
LIQUOR BUSINESS IN THE TWENTIES AND HAD AN OFFICE AT 405 LEXINGTON
AVENUE, NEW YORK CITY, AS EARLY AS 1925.  HE ALSO ADMITTED THAT HE HAD
REPORTED AN AGGREGATE INCOME OF $305,000 FOR NEW YORK STATE INCOME TAX
PURPOSES FOR THE YEARS 1919 TO 1932 AND THAT "MAYBE MOST OF IT" WAS
EARNED IN THE BOOTLEGGING BUSINESS.  INDEED, EXCEPT FOR $25,000
REALIZED FROM A REAL ESTATE VENTURE TO BE DISCUSSED SHORTLY, THERE WAS
NO EVIDENCE OF INCOME FROM ANY LEGITIMATE BUSINESS.  IN 1943, IN A
PROCEEDING BEFORE AN OFFICIAL REFEREE OF THE APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK, HE ACKNOWLEDGED THAT MONEY HE HAD LENT TO
ARNOLD ROTHSTEIN, PRIOR TO THE LATTER'S MURDER IN 1928, MIGHT HAVE BEEN
DERIVED "FROM A LITTLE BOOTLEGGING"; HE ALSO ADMITTED THAT DURING THE
PROHIBITION ERA HIS BUSINESS OF SMUGGLING ALCOHOLIC LIQUORS INTO THE
UNITED STATES WAS "PROFITABLE."  IN 1947 HE APPEARED BEFORE THE NEW
YORK STATE LIQUOR AUTHORITY AND TESTIFIED THAT FROM 1923 TO 1926 HE
OPERATED A BOOTLEGGING BUSINESS FROM 405 LEXINGTON AVENUE. 

SEVERAL OF HIS ASSOCIATES IN BOOTLEGGING ENTERPRISES PRESENTED A
PICTURE OF LARGE-SCALE OPERATIONS BY THE PETITIONER FROM EARLY IN
PROHIBITION PAST THE TIME OF HIS APPLICATION FOR CITIZENSHIP.  EMANUEL
KESSLER, A BIG OPERATOR APPREHENDED IN 1923 AND CONVICTED FOR HIS
ACTIVITIES, FINANCED, ABOUT 1921, THE PETITIONER'S PURCHASE OF TRUCKS
TO HAUL KESSLER'S LIQUORS AFTER KESSLER LANDED THEM ON LONG ISLAND FROM
BOATS ON THE HIGH SEAS.  KESSLER "VERY OFTEN" DISCUSSED SHIPMENTS WITH
THE PETITIONER IN TELEPHONE CALLS TO THE LEXINGTON AVENUE OFFICE. 
KESSLER'S VOLUME AT THE TIME WAS ABOUT 3,000 CASES PER WEEK AND HE PAID
THE COSTELLO ORGANIZATION APPROXIMATELY $6,000 A WEEK FOR HAULAGE AND
STORAGE.  KESSLER SAID THAT BEFORE HE BEGAN SERVING HIS SENTENCE "FRANK
COSTELLO PERSONALLY ASKED ME  ...  FOR SOME MONEY SO HE COULD CONTINUE
ON.  I THINK I LEFT HIM EITHER 100 OR 200 CASES." 

FRANK KELLY, WHO BEGAN BOOTLEGGING ABOUT 1922, SMUGGLED LIQUORS INTO
THE COUNTRY USING A CHARTERED SHIP WHICH HE MOORED OFF THE LONG ISLAND
SHORE.  HE BECAME ASSOCIATED WITH THE PETITIONER IN 1925 WHEN HE WAS
INTRODUCED TO THE PETITIONER AND THE PETITIONER'S CANADIAN
REPRESENTATIVE, HARRY SAUSSER, AT MONTAUK, LONG ISLAND.  ON THIS
OCCASION, SAUSSER NEGOTIATED WITH KELLY FOR THE STORAGE OF LIQUORS ON
KELLY'S BOAT.  KELLY WAS ONE OF A COMBINE INCLUDING THE PETITIONER
WHICH WAS INDICTED IN 1925 FOR CONSPIRACY TO VIOLATE THE LIQUOR LAWS. 

PHILIP COFFEY, ALSO INDICTED WITH THE PETITIONER IN 1925, WAS A
FORMER KESSLER EMPLOYEE.  HE PURCHASED LIQUOR FROM THE COSTELLO
ORGANIZATION AT 405 LEXINGTON AVENUE AS EARLY AS 1922 OR 1923.  HE
INSISTED THAT HE DID "ALL MY BUSINESS WITH EDDIE COSTELLO," THE
PETITIONER'S BROTHER, BUT ADMITTED PLACING ORDERS WITH EDWARD IN THE
PETITIONER'S PRESENCE AND DISCUSSING PURCHASES WITH THE PETITIONER. 
COFFEY TOLD OF AN OCCASION, WHICH HE THOUGHT OCCURRED IN 1925, WHEN
KELLY AND THE PETITIONER CAME BY AUTOMOBILE TO MONTAUK POINT AND KELLY
GAVE HIM INSTRUCTIONS FOR THE REMOVAL OF LIQUOR FROM KELLY'S CHARTERED
SCHOONER.  HE SAID THAT HE WAS PAID FOR HIS SERVICES AT PETITIONER'S
LEXINGTON AVENUE OFFICE BY EDWARD ELLIS, THE PETITIONER'S BOOKKEEPER. 

ALBERT FELDMAN, ANOTHER ADMITTED BOOTLEGGER, STARTED IN 1920 AND
DEALT WITH BOTH THE PETITIONER AND KESSLER.  HE ARRANGED WITH THE
PETITIONER ABOUT 1923 AT THE LEXINGTON AVENUE OFFICE TO HAVE THE
PETITIONER HAUL AND STORE SOME LIQUOR FOR HIM.  HE ALSO TALKED WITH THE
PETITIONER REGARDING ITS SALE.  THE PETITIONER TOLD FELDMAN HE HAD "A
CUSTOMER FOR THE 1000 CASES," THAT HE "COULD SELL THEM AND HE WOULD BE
ABLE TO PAY ME IN A FEW DAYS, AS SOON AS THEY WERE DELIVERED, TO WHICH
I AGREED; AND FRANK SAID THAT 'I'LL BE RESPONSIBLE FOR THE MONEY.'"  IN
REGARD TO THE PETITIONER'S ROLE IN LIQUOR TRANSACTIONS, FELDMAN SAID,
"EVERYTHING WAS FRANK COSTELLO.  HE WAS THE BUSINESS MAN.  HE DID ALL
THE BUSINESS."    HELEN L. SAUSSER, DAUGHTER OF HARRY SAUSSER, WAS 18
WHEN SHE BECAME ACQUAINTED WITH THE PETITIONER IN 1925.  SAUSSER WAS
ONE OF THE TWO PERSONS WHO EXECUTED THE AFFIDAVIT ATTACHED TO THE
PETITIONER'S PETITION FOR NATURALIZATION AND SWORE THAT HE ALSO WAS IN
THE REAL ESTATE BUSINESS.  THE DAUGHTER RECALLED OVERHEARING
CONVERSATIONS BETWEEN PETITIONER AND HER FATHER ABOUT LIQUOR, AND SAID
THAT HER FATHER ADMITTED TO HER MOTHER THAT HE WAS ENGAGED IN
BOOTLEGGING.  THE DAUGHTER TESTIFIED THAT SHE HAD NEVER KNOWN HER
FATHER TO ENGAGE IN THE REAL ESTATE BUSINESS. 

DESPITE THESE STRONG PROOFS OF THE FALSITY OF THE PETITIONER'S
ANSWERS, THE PETITIONER INSISTS THAT THE EVIDENCE DERIVED FROM THE
GOVERNMENT'S OWN INVESTIGATION OF HIS ACTIVITIES IN THE REAL ESTATE
BUSINESS SHOULD LEAVE US WITH A TROUBLING DOUBT WHETHER HE STATED
FALSELY THAT HE WAS ENGAGED IN THAT OCCUPATION.  HE HAD TOLD THE NEW
YORK GRAND JURY IN 1943, WHEN ASKED WHAT "OTHER OCCUPATION" BESIDES
BOOTLEGGING HE FOLLOWED DURING PROHIBITION, THAT "I WAS DOING A LITTLE
REAL ESTATE AT THAT TIME."  THE GOVERNMENT PUT IN EVIDENCE IN THIS
PROCEEDING STATE CORPORATE RECORDS AND RECORDS FROM THE REGISTRIES OF
DEEDS IN NEW YORK CITY.  THESE SHOW THAT PETITIONER WAS INDEED
IDENTIFIED WITH THREE CORPORATIONS EMPOWERED TO ENGAGE IN THE PURCHASE
AND SALE OF REAL ESTATE.  WE DISMISS TWO OF THE CORPORATIONS, ORGANIZED
IN 1926, WITHOUT FURTHER MENTION BEYOND THE FACT THAT THE PETITIONER
TESTIFIED BEFORE THE OFFICIAL REFEREE IN THE APPELLATE DIVISION THAT
HIS INVESTMENT OF $25,000 OR $30,000 IN ONE OF THEM CAME FROM
"BOOTLEGGING OR GAMBLING"; THERE WAS NO EVIDENCE OF ANY REAL ESTATE
TRANSACTIONS INVOLVING EITHER COMPANY.  THE PETITIONER'S CONTENTION
MUST THEREFORE BE TESTED IN THE LIGHT OF THE ACTIVITIES OF KOSLO REALTY
CORPORATION.  THIS CORPORATION WAS ORGANIZED IN DECEMBER 1924 AND AT
LEAST AS EARLY AS AUGUST 1925 LISTED ITS ADDRESS AS THE PETITIONER'S
OFFICE, 405 LEXINGTON AVENUE.  A DECEMBER 1925 DOCUMENT LISTS THE
PETITIONER AS PRESIDENT OF THE COMPANY.  THE ONLY EVIDENCE OF ANY
INVESTMENT BY THE PETITIONER OR PROFITABLE TRANSACTION IN WHICH HE
ENGAGED BEFORE MAY 1, 1925, WHEN HE FILED HIS PETITION FOR
NATURALIZATION, CONCERNED A PROPERTY AT WEST END AVENUE AND 92D STREET,
MANHATTAN, ACQUIRED BY THE CORPORATION IN DECEMBER 1924.  THE
PETITIONER ADMITTED BEFORE THE NEW YORK COUNTY GRAND JURY THAT HIS
INVESTMENT IN THAT TRANSACTION WAS FROM EARNINGS IN "GAMBLING OR
LIQUOR" AND CLAIMED THAT HE MADE A PROFIT OF $25,000 ON THE SALE OF THE
PROPERTY IN JUNE 1925.  THE ONLY OTHER TRANSACTIONS OCCURRED AFTER MAY
1, 1925.  THE CORPORATION BOUGHT LOTS IN THE BRONX IN AUGUST AND
OCTOBER 1925.  SOME OF THE LOTS WERE IMPROVED AND ALL OF THEM WERE SOLD
IN 1926. 

THESE PROOFS RAISE NO TROUBLING DOUBT IN OUR MINDS.  THEY DO NOT
SUPPORT AN INFERENCE THAT HIS OCCUPATION WAS REAL ESTATE.  THEY SHOW
ONLY THAT THE PETITIONER INVESTED HIS ILLICIT EARNINGS IN REAL ESTATE
TRANSACTIONS WITH THE HOPE OF PROFIT.  BUT HE WAS NEITHER DERIVING HIS
PRINCIPAL INCOME FROM KOSLO REALTY CORPORATION, SPENDING ANY
APPRECIABLE TIME CONDUCTING ITS AFFAIRS, NOR MAKING IT HIS CENTRAL
BUSINESS CONCERN.  HE HIMSELF ADMITTED THAT HE OPERATED HIS BOOTLEGGING
ENTERPRISES FROM THE LEXINGTON AVENUE ADDRESS.  ALL OF THE WITNESSES
WHO TESTIFIED TO ACTIVITIES AT THAT ADDRESS RECOUNTED BOOTLEGGING
TRANSACTIONS AND NOT ONE IN REAL ESTATE.  AND THE POSTMAN WHO DELIVERED
MAIL TO THE OFFICE FROM 1924 TO 1926, AND SAW THE PETITIONER THERE
SEVERAL TIMES A WEEK, SAW NEITHER A SECRETARY NOR A TYPEWRITER AS MIGHT
BE EXPECTED IN AN ACTIVE REAL ESTATE BUSINESS. 

THE GOVERNMENT'S PROOFS SHOW NOT MERELY THAT THE PETITIONER'S
STATEMENTS WERE FACTUALLY INCORRECT, BUT SHOW CLEARLY, UNEQUIVOCALLY,
AND CONVINCINGLY THAT THE STATEMENTS WERE WILLFULLY FALSE.  THE
PETITIONER ARGUES THAT THE EVIDENCE IS SUSCEPTIBLE OF THE INFERENCE
THAT HE MAY HAVE BELIEVED THAT THE QUESTIONS CALLED FOR THE DISCLOSURE
ONLY OF A LEGAL OCCUPATION.  WE MAY ASSUME THAT "OCCUPATION" CAN BE A
WORD OF ELUSIVE CONTENT IN SOME CIRCUMSTANCES, LIKE THE QUESTION
INVOLVED IN NOWAK V. UNITED STATES, SUPRA, AND MAISENBERG V. UNITED
STATES, 356 U.S. 670, UPON WHICH DECISIONS THE PETITIONER RELIES.  BUT
THAT ARGUMENT OF AMBIGUITY IS FARFETCHED HERE.  NO ONE IN THE
PETITIONER'S SITUATION COULD HAVE REASONABLY THOUGHT THAT THE QUESTIONS
COULD BE ANSWERED TRUTHFULLY AS THEY WERE.  IT WOULD HAVE BEEN A
PALPABLE ABSURDITY FOR HIM TO THINK THAT HIS OCCUPATION WAS REAL
ESTATE; HE ACTUALLY HAD NO LEGAL OCCUPATION.  ON THIS RECORD, HIS ONLY
REGULAR AND CONTINUING CONCERN WAS HIS BOOTLEGGING UPON WHICH HE
DEPENDED FOR HIS LIVELIHOOD.  HE ONLY DABBLED IN REAL ESTATE AND BY HIS
OWN ADMISSION FINANCED EVEN THIS SIDELINE FROM "LIQUOR OR GAMBLING." 
WE NEED NOT DETERMINE WHETHER THE EVIDENCE SUPPORTS THE CONCLUSION THAT
PETITIONER ORGANIZED KOSLO REALTY CORPORATION TO PROVIDE HIM WITH A
FACADE OR FRONT TO MISLEAD THE LAW-ENFORCEMENT AUTHORITIES AS TO HIS
TRUE OCCUPATION, ALTHOUGH THE APPEARANCE OF A LEGITIMATE OCCUPATION WAS
OBVIOUSLY CONVENIENT FOR HIM AND HIS GROUP.  WE ARE CONVINCED, HOWEVER,
THAT THE PETITIONER COUNTED UPON THE CORPORATION TO GIVE PLAUSIBILITY
TO HIS REPRESENTATION AS TO HIS OCCUPATION WHEN HE APPLIED FOR
CITIZENSHIP. 

OUR CONCLUSION THAT HIS REPRESENTATIONS WERE WILLFULLY FALSE IS
REACHED WITHOUT RELIANCE UPON AN INFERENCE FROM THE FAILURE OF THE
PETITIONER TO TAKE THE STAND IN THIS PROCEEDING AND TESTIFY IN HIS OWN
BEHALF.  THE COURT OF APPEALS MADE SOME COMMENTS AS TO THE SIGNIFICANCE
OF THE PETITIONER'S FAILURE TO TESTIFY, 275 F.2D, AT 358, BUT WE DO NOT
READ ITS OPINION AS BASING THE AFFIRMANCE OF THE DISTRICT COURT'S ORDER
UPON SUCH AN INFERENCE.  THE DISTRICT JUDGE, WHOSE ORDER THE COURT OF
APPEALS AFFIRMED, MADE NONE.  THE EVIDENCE SO STRONGLY SUPPORTS THE
DISTRICT COURT'S CONCLUSION THAT THE AID OF THE INFERENCE WAS
UNNECESSARY TO BUTTRESS IT.  WE THEREFORE FIND IT UNNECESSARY TO DECIDE
IN THIS CASE WHETHER AN INFERENCE MAY BE DRAWN IN A DENATURALIZATION
PROCEEDING FROM THE FAILURE OF THE DEFENDANT TO PRESENT HIMSELF AS A
WITNESS. 

                                       II. 

THE CONTENTION THAT ILLEGAL WIRETAPPING PRECLUDED RELIANCE UPON THE
PETITIONER'S ADMISSIONS RESTS PRIMARILY UPON INTERROGATIONS BY NEW YORK
COUNTY DISTRICT ATTORNEY FRANK HOGAN IN 1943 WHEN THE PETITIONER
APPEARED BEFORE THE NEW YORK COUNTY GRAND JURY AND THE OFFICIAL REFEREE
IN THE APPELLATE DIVISION.  STATE OFFICERS HAD A TAP ON THE
PETITIONER'S TELEPHONE DURING SEVERAL MONTHS OF 1943.  MR. HOGAN MADE
FREQUENT REFERENCES TO THE TAPPED CONVERSATIONS WHEN QUESTIONING THE
PETITIONER.  THE PETITIONER CLAIMS THAT HIS ADMISSIONS OF BOOTLEGGING
ACTIVITIES DURING PROHIBITION WERE IMPELLED BY THE BELIEF THAT MR.
HOGAN HAD LEARNED FROM THE TAPPED CONVERSATIONS THE INFORMATION SOUGHT
BY THE QUESTIONS.  IT IS ARGUED THAT THE WIRETAPS WERE ILLEGAL UNDER
OUR DECISION IN BENANTI V. UNITED STATES, 335 U.S. 96, AND THAT HIS
ADMISSIONS WERE THEREFORE TO BE EXCLUDED FROM EVIDENCE AS "FRUIT OF THE
POISONOUS TREE," ON THE REASONING IN SILVERTHORNE LUMBER CO. V. UNITED
STATES, 251 U.S. 385, AND NARDONE V. UNITED STATES, 308 U.S. 338. 

THE SHORT ANSWER TO THIS CONTENTION IS THAT WE CONCLUDE FROM THE
RECORD THAT HIS TRUTHFUL ANSWERS TO MR. HOGAN'S QUESTIONS WERE NOT
GIVEN BECAUSE HE THOUGHT THAT THE CONVERSATIONS TAPPED IN 1943 REVEALED
HIS ACTIVITIES IN THE PROHIBITION ERA, BUT BECAUSE HE REALIZED THAT
THESE FACTS HAD BEEN KNOWN TO THE AUTHORITIES FOR SOME TIME.  NONE OF
MR. HOGAN'S QUESTIONS EVEN IMPLIES THAT MR. HOGAN GAINED HIS
INFORMATION FROM THE 1943 WIRETAPS.  MR. HOGAN HAD A TRANSCRIPT OF THE
1939 FEDERAL GRAND JURY MINUTES OF THE PETITIONER'S APPEARANCE BEFORE
THAT BODY.  THE PETITIONER PRESSES NO ARGUMENT IN THIS COURT THAT HIS
ADMISSIONS BEFORE THAT GRAND JURY WERE INFECTED WITH WIRETAPPING. 
EARLY IN MR. HOGAN'S EXAMINATION, THE PETITIONER ADMITTED THAT HE
RECALLED BEING QUESTIONED BEFORE THE GRAND JURY IN 1939.  THE
QUESTIONING AT THAT PROCEEDING HAD ELICITED THE PETITIONER'S ADMISSION
OF HIS BOOTLEGGING.  FURTHERMORE, HIS ARREST AND TRIAL UNDER THE 1925
INDICTMENT FOR CONSPIRACY TO VIOLATE THE LIQUOR LAWS WERE MATTERS OF
PUBLIC RECORD.  AND IN 1938 THE PETITIONER HAD ALSO ADMITTED HIS
BOOTLEGGING TO THE AGENT FOR THE BUREAU OF INTERNAL REVENUE.  IT IS
PLAIN COMMON SENSE TO CONCLUDE THAT THIS INFORMATION, LONG A MATTER OF
OFFICIAL KNOWLEDGE, NOT SOMETHING WHICH HE THOUGHT MIGHT HAVE BEEN
DISCLOSED IN THE 1943 WIRETAPS, IMPELLED THE PETITIONER TO ANSWER MR.
HOGAN TRUTHFULLY. 

MOREOVER, DISTRICT ATTORNEY HOGAN TESTIFIED IN THE PRESENT
PROCEEDING.  HE EXPRESSLY DISAVOWED THAT HIS QUESTIONS OF THE
PETITIONER AS TO HIS ACTIVITIES DURING PROHIBITION WERE BASED ON THE
1943 WIRETAPS.  HE TESTIFIED THAT HIS INFORMATION WAS DERIVED FROM
FILES OF THE DISTRICT ATTORNEY'S OFFICE, NEWSPAPER REPORTS AND COURT
RECORDS.  ALTHOUGH ONE OF THE INTERCEPTED TELEPHONE CONVERSATIONS WAS
BETWEEN THE PETITIONER AND ONE O'CONNELL, A CODEFENDANT IN THE 1925
PROHIBITION PROSECUTION, MR. HOGAN STATED THAT NONE OF THE 1943
WIRETAPS CONCERNED THE PETITIONER'S BOOTLEGGING ACTIVITIES.  THE 1943
GRAND JURY AND APPELLATE DIVISION INVESTIGATIONS WERE CONCERNED ONLY
WITH THE PETITIONER'S PART IN THE NOMINATION THAT YEAR OF A CANDIDATE
FOR JUSTICE OF THE STATE SUPREME COURT. 

IT IS TRUE THAT THE 1943 WIRETAPS PROMPTED THE CALLING OF THE
PETITIONER BEFORE THE COUNTY GRAND JURY AND THE OFFICIAL REFEREE.  BUT
THE "FRUIT OF THE POISONOUS TREE" DOCTRINE EXCLUDES EVIDENCE OBTAINED
FROM OR AS A CONSEQUENCE OF LAWLESS OFFICIAL ACTS, NOT EVIDENCE
OBTAINED FROM AN "INDEPENDENT SOURCE."  SILVERTHORNE LUMBER CO. V.
UNITED STATES, SUPRA, AT 392.  WE SAID IN NARDONE V. UNITED STATES, 308
U.S. 338, 341, "SOPHISTICATED ARGUMENT MAY PROVE A CAUSAL CONNECTION
BETWEEN INFORMATION OBTAINED THROUGH ILLICIT WIRE-TAPPING AND THE
GOVERNMENT'S PROOF.  AS A MATTER OF GOOD SENSE, HOWEVER, SUCH
CONNECTION MAY HAVE BECOME SO ATTENUATED AS TO DISSIPATE THE TAINT." 
WE ARE SATISFIED THAT ANY KNOWLEDGE IN MR. HOGAN'S POSSESSION WHICH
IMPELLED THE PETITIONER TO ANSWER TRUTHFULLY CAME FROM SUCH INDEPENDENT
SOURCES AND THAT ANY CONNECTION BETWEEN THE WIRETAPS AND THE ADMISSIONS
WAS TOO ATTENUATED TO REQUIRE THE EXCLUSION OF THE ADMISSIONS FROM
EVIDENCE.  (FN4)

                                         III. 

IN CONTENDING THAT LAPSE OF TIME SHOULD BE DEEMED TO BAR THE
GOVERNMENT FROM INSTITUTING THIS PROCEEDING, THE PETITIONER ARGUES THAT
THE DOCTRINE OF LACHES SHOULD BE APPLIED TO DENATURALIZATION
PROCEEDINGS, AND THAT IN ANY EVENT, THE DELAY OF 27 YEARS BEFORE
BRINGING DENATURALIZATION PROCEEDINGS DENIED HIM DUE PROCESS OF LAW IN
THE CIRCUMSTANCES OF THE CASE. 

IT HAS CONSISTENTLY BEEN HELD IN THE LOWER COURTS THAT DELAY WHICH
MIGHT SUPPORT A DEFENSE OF LACHES IN ORDINARY EQUITABLE PROCEEDINGS
BETWEEN PRIVATE LITIGANTS WILL NOT BAR A DENATURALIZATION PROCEEDING
BROUGHT BY THE GOVERNMENT.  SEE UNITED STATES V. ALI, 7 F.2D 728;
UNITED STATES V. MARINO, 27 F. SUPP. 155; UNITED STATES V. CUFARI, 120
F. SUPP. 941, REVERSED ON OTHER GROUNDS, 217 F.2D 404; UNITED STATES V.
PARISI, 24 F. SUPP. 414; UNITED STATES V. BRASS, 37 F. SUPP. 698;
UNITED STATES V. SPOHRER, 175 F. 440; UNITED STATES V. REINSCH, 50 F.
SUPP. 971, REVERSED ON OTHER GROUNDS, 156 F.2D 678; UNITED STATES V.
SCHNEIDERMAN, 33 F. SUPP. 510, REVERSED ON OTHER GROUNDS, 320 U.S.
118.  THESE CASES HAVE APPLIED THE PRINCIPLE THAT LACHES IS NOT A
DEFENSE AGAINST THE SOVEREIGN.  THE REASON UNDERLYING THE PRINCIPLE,
SAID MR. JUSTICE STORY, IS "TO BE FOUND IN THE GREAT PUBLIC POLICY OF
PRESERVING THE PUBLIC RIGHTS, REVENUES, AND PROPERTY FROM INJURY AND
LOSS, BY THE NEGLIGENCE OF PUBLIC OFFICERS."  UNITED STATES V. HOAR, 26
FED. CAS. 329, 330 (NO. 15,373).  THIS COURT HAS CONSISTENTLY ADHERED
TO THIS PRINCIPLE.  SEE, FOR EXAMPLE, UNITED STATES V. KIRKPATRICK, 9
WHEAT.  720, 735-737; UNITED STATES V. KNIGHT, 14 PET. 301, 315; SEE
ALSO UNITED STATES V. SUMMERLIN, 310 U.S. 414, 416; BOARD OF COUNTY
COMMISSIONERS V. UNITED STATES, 308 U.S. 343, 351; UNITED STATES V.
THOMPSON, 98 U.S. 486, 489. 

NONE OF THE CASES IN THIS COURT CONSIDERED THE QUESTION OF THE
APPLICATION OF LACHES IN A DENATURALIZATION PROCEEDING.  HOWEVER, EVEN
IF WE ASSUME THE APPLICABILITY OF LACHES, WE THINK THAT THE PETITIONER
FAILED TO PROVE BOTH OF THE ELEMENTS WHICH ARE NECESSARY TO THE
RECOGNITION OF THE DEFENSE.  LACHES REQUIRES PROOF OF (1) LACK OF
DILIGENCE BY THE PARTY AGAINST WHOM THE DEFENSE IS ASSERTED, AND (2)
PREJUDICE TO THE PARTY ASSERTING THE DEFENSE.  SEE GALLIHER V. CADWELL,
145 U.S. 368, 372; SOUTHERN PACIFIC CO. V. BOGERT, 250 U.S. 483, 488
490; GARDNER V. PANAMA R. CO., 342 U.S. 29, 31. 

THE PETITIONER ALLEGES LACK OF DILIGENCE IN THE GOVERNMENT'S FAILURE
TO PROCEED TO REVOKE HIS CERTIFICATE WITHIN A REASONABLE TIME AFTER HIS
ARREST AND TRIAL UNDER THE 1925 INDICTMENT FOR CONSPIRACY TO VIOLATE
THE PROHIBITION LAWS, OR AT LEAST WITHIN A REASONABLE TIME AFTER HIS
ADMISSIONS BEFORE THE FEDERAL GRAND JURY IN 1939.  THERE IS NO
NECESSITY TO DETERMINE THE MERITS OF THIS ARGUMENT, FOR THE RECORD IS
CLEAR THAT THE PETITIONER WAS NOT PREJUDICED BY THE GOVERNMENT'S DELAY
IN ANY WAY WHICH SATISFIES THIS REQUISITE OF LACHES.  IN BROWN V.
COUNTY OF BUENA VISTA, 95 U.S. 157, 161, THIS COURT SAID:  "THE LAW OF
LACHES, LIKE THE PRINCIPLE OF THE LIMITATION OF ACTIONS, WAS DICTATED
BY EXPERIENCE, AND IS FOUNDED IN A SALUTARY POLICY.  THE LAPSE OF TIME
CARRIES WITH IT THE MEMORY AND LIFE OF WITNESSES, THE MUNIMENTS OF
EVIDENCE, AND OTHER MEANS OF PROOF."  INSOFAR AS THESE FACTORS INHERENT
IN THE LAPSE OF TIME WERE OPERATIVE IN THE PRESENT CASE, THEY SEEM
PLAINLY TO HAVE WORKED TO PETITIONER'S BENEFIT, NOT TO HIS DETRIMENT. 
THE EVIDENCE OF THE PETITIONER'S REAL ESTATE ACTIVITY CONSISTED ALMOST
EXCLUSIVELY OF PUBLIC RECORDS.  THERE IS NO SUGGESTION THAT THESE
RECORDS ARE NOT ALL THE EVIDENCE OF REAL ESTATE ACTIVITY THERE IS OR
THAT ANY HAD BEEN DESTROYED OR WERE UNAVAILABLE.  NOR DO WE PERCEIVE
ANY PREJUDICE TO THE PETITIONER IN THE FACT THAT THE NATURALIZATION
EXAMINERS WHO PROCESSED HIS APPLICATION, THE WITNESSES WHO APPEARED FOR
HIM, AND THE JUDGE WHO ADMITTED HIM TO CITIZENSHIP, ARE DEAD.  THE
EXAMINERS AND THE JUDGE OBVIOUSLY COULD SUPPLY NO EVIDENCE BEARING ON
HIS CLAIM THAT REAL ESTATE WAS HIS OCCUPATION.  THEIR KNOWLEDGE ON THAT
SUBJECT CAME FROM HIM.  AND IT STRETCHES CREDULITY TO SUPPOSE THAT HE
WOULD HAVE INQUIRED OF THOSE OFFICIALS WHETHER "OCCUPATION" MEANT
LAWFUL OCCUPATION.  FINALLY, THE PETITIONER DOES NOT SUGGEST HOW THE
WITNESSES WHO SUPPORTED HIS PETITION COULD HAVE AIDED HIM ON ANY ISSUE
MATERIAL IN THIS PROCEEDING.  IN ADDITION, HIS BOOTLEGGING ASSOCIATE,
SAUSSER, DIED IN 1926, AND WOULD NOT HAVE BEEN AVAILABLE EVEN HAD THE
GOVERNMENT BROUGHT A PROCEEDING IMMEDIATELY AFTER THE CRIMINAL TRIAL. 

INDEED, ANY HARM FROM THE LAPSE OF TIME WAS TO THE GOVERNMENT'S
CASE.  ALTHOUGH THAT CASE WAS SUPPORTED PRIMARILY BY DOCUMENTARY PROOFS
AND THE PETITIONER'S ADMISSIONS, THE GOVERNMENT SUPPLEMENTED THIS
EVIDENCE WITH THE TESTIMONY OF THE PETITIONER'S ASSOCIATES IN THE
BOOTLEGGING ENTERPRISE, AND OF OTHERS WHO HAD KNOWLEDGE OF THOSE
EVENTS.  THE GOVERNMENT'S PROOF WAS MADE MORE DIFFICULT WHEN A NUMBER
OF THE WITNESSES ADMITTED THAT THEIR MEMORIES OF DETAILS HAD DIMMED
WITH THE PASSAGE OF THE YEARS. 

WE CANNOT SAY, MOREOVER, THAT THE DELAY DENIED THE PETITIONER
FUNDAMENTAL FAIRNESS.  HE SUFFERED NO PREJUDICE FROM ANY INABILITY TO
PROVE HIS DEFENSES.  RATHER, THE HARM HE MAY SUFFER LIES IN THE HARSH
CONSEQUENCES WHICH MAY ATTEND HIS LOSS OF CITIZENSHIP.  HE HAS BEEN A
RESIDENT OF THE UNITED STATES FOR OVER 65 YEARS, SINCE THE AGE OF
FOUR.  WE MAY ASSUME THAT HE HAS BUILT A LIFE IN RELIANCE UPON THAT
CITIZENSHIP.  BUT CONGRESS HAS NOT ENACTED A TIME BAR APPLICABLE TO
PROCEEDINGS TO REVOKE CITIZENSHIP PROCURED BY FRAUD.  ON THIS RECORD,
THE PETITIONER NEVER HAD A RIGHT TO HIS CITIZENSHIP.   DEPRIVING HIM OF
HIS FRAUDULENTLY ACQUIRED PRIVILEGE, EVEN AFTER THE LAPSE OF MANY
YEARS, IS NOT SO UNREASONABLE AS TO CONSTITUTE A DENIAL OF DUE
PROCESS.  CF. JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 242-243. 

              IV. 

THE PETITIONER MOVED FOR LEAVE TO AMEND HIS PETITION FOR A WRIT OF
CERTIORARI TO ADD A QUESTION WHETHER THE PRESENT PROCEEDING WAS BARRED
BY THE ORDER OF THE DISTRICT COURT DISMISSING THE EARLIER PROCEEDING ON
REMAND, WITHOUT SPECIFYING WHETHER THE DISMISSAL WAS WITH OR WITHOUT
PREJUDICE.  WE DEFERRED DECISION ON THE MOTION PENDING ORAL ARGUMENT. 
THE MOTION IS GRANTED AND WE PROCEED TO DETERMINE THE MERITS OF THE
QUESTION. 

IT IS THE PETITIONER'S CONTENTION THAT THE ORDER DISMISSING THE
EARLIER COMPLAINT MUST BE CONSTRUED TO BE WITH PREJUDICE BECAUSE IT DID
NOT SPECIFY THAT IT WAS WITHOUT PREJUDICE, AND THE GROUND OF DISMISSAL
WAS NOT WITHIN ONE OF THE EXCEPTIONS UNDER RULE 41(B) OF THE FEDERAL
RULES OF CIVIL PROCEDURE.  THAT RULE PROVIDES: 

"FOR FAILURE OF THE PLAINTIFF TO PROSECUTE OR TO COMPLY WITH THESE
RULES OR ANY ORDER OF COURT, A DEFENDANT MAY MOVE FOR DISMISSAL OF AN
ACTION OR OF ANY CLAIM AGAINST HIM.  AFTER THE PLAINTIFF HAS COMPLETED
THE PRESENTATION OF HIS EVIDENCE, THE DEFENDANT, WITHOUT WAIVING HIS
RIGHT TO OFFER EVIDENCE IN THE EVENT THE MOTION IS NOT GRANTED, MAY
MOVE FOR A DISMISSAL ON THE GROUND THAT UPON THE FACTS AND THE LAW THE
PLAINTIFF HAS SHOWN NO RIGHT TO RELIEF  ...  .  UNLESS THE COURT IN ITS
ORDER FOR DISMISSAL OTHERWISE SPECIFIES, A DISMISSAL UNDER THIS
SUBDIVISION AND ANY DISMISSAL NOT PROVIDED FOR IN THIS RULE, OTHER THAN
A DISMISSAL FOR LACK OF JURISDICTION OR FOR IMPROPER VENUE, OPERATES AS
AN ADJUDICATION UPON THE MERITS." 

WE HOLD THAT A DISMISSAL FOR FAILURE TO FILE THE AFFIDAVIT OF GOOD
CAUSE IS A DISMISSAL "FOR LACK OF JURISDICTION," WITHIN THE MEANING OF
THE EXCEPTION UNDER RULE 41(B).  IN ARGUING CONTRA, THE PETITIONER
RELIES ON CASES WHICH HOLD THAT A JUDGMENT OF DENATURALIZATION
RESULTING FROM A PROCEEDING IN WHICH THE AFFIDAVIT OF GOOD CAUSE WAS
NOT FILED IS NOT OPEN TO COLLATERAL ATTACK ON THAT GROUND.  TITLE V.
UNITED STATES, 263 F.2D 28; UNITED STATES V. FAILLA, 164 F. SUPP. 307. 
WE THINK THAT PETITIONER MISCONCEIVES THE SCOPE OF THIS EXCEPTION FROM
THE DISMISSALS UNDER RULE 41(B) WHICH OPERATE AS ADJUDICATIONS ON THE
MERITS UNLESS THE COURT SPECIFIES OTHERWISE.  IT IS TOO NARROW A
READING OF THE EXCEPTION TO RELATE THE CONCEPT OF JURISDICTION EMBODIED
THERE TO THE FUNDAMENTAL JURISDICTIONAL DEFECTS WHICH RENDER A JUDGMENT
VOID AND SUBJECT TO COLLATERAL ATTACK, SUCH AS LACK OF JURISDICTION
OVER THE PERSON OR SUBJECT MATTER.  WE REGARD THE EXCEPTION AS
ENCOMPASSING THOSE DISMISSALS WHICH ARE BASED ON A PLAINTIFF'S FAILURE
TO COMPLY WITH A PRECONDITION REQUISITE TO THE COURT'S GOING FORWARD TO
DETERMINE THE MERITS OF HIS SUBSTANTIVE CLAIM.  FAILURE TO FILE THE
AFFIDAVIT OF GOOD CAUSE IN A DENATURALIZATION PROCEEDING FALLS WITHIN
THIS CATEGORY.  UNITED STATES V. ZUCCA, SUPRA; COSTELLO V. UNITED
STATES, 356 U.S. 256. 

AT COMMON LAW DISMISSAL ON A GROUND NOT GOING TO THE MERITS WAS NOT
ORDINARILY A BAR TO A SUBSEQUENT ACTION ON THE SAME CLAIM.  IN HALDEMAN
V. UNITED STATES, 91 U.S. 584, 585-586, WHICH CONCERNED A VOLUNTARY
NONSUIT, THIS COURT SAID, "THERE MUST BE AT LEAST ONE DECISION ON A
RIGHT BETWEEN THE PARTIES BEFORE THERE CAN BE SAID TO BE A TERMINATION
OF THE CONTROVERSY, AND BEFORE A JUDGMENT CAN AVAIL AS A BAR TO A
SUBSEQUENT SUIT  ...  .  THERE MUST HAVE BEEN A RIGHT ADJUDICATED OR
RELEASED IN THE FIRST SUIT TO MAKE IT A BAR, AND THIS FACT MUST APPEAR
AFFIRMATIVELY."  A SIMILAR VIEW APPLIED TO MANY DISMISSALS ON THE
MOTION OF A DEFENDANT.  IN HUGHES V. UNITED STATES, 4 WALL.  232, 237,
IT WAS SAID:  "IN ORDER THAT A JUDGMENT MAY CONSTITUTE A BAR TO ANOTHER
SUIT, IT MUST BE RENDERED IN A PROCEEDING BETWEEN THE SAME PARTIES OR
THEIR PRIVIES, AND THE POINT OF CONTROVERSY MUST BE THE SAME IN BOTH
CASES, AND MUST BE DETERMINED ON ITS MERITS.  IF THE FIRST SUIT WAS
DISMISSED FOR DEFECT OF PLEADINGS, OR PARTIES, OR A MISCONCEPTION OF
THE FORM OF PROCEEDING, OR THE WANT OF JURISDICTION, OR WAS DISPOSED OF
ON ANY GROUND WHICH DID NOT GO TO THE MERITS OF THE ACTION, THE
JUDGMENT RENDERED WILL PROVE NO BAR TO ANOTHER SUIT."  SEE ALSO HOUSE
V. MULLEN, 22 WALL.  42, 46; SWIFT V. MCPHERSON, 232 U.S. 51, 56; ST.
ROMES V. LEVEE STEAM COTTON PRESS CO., 127 U.S. 614, 619; BURGETT V.
UNITED STATES, 80 F.2D 151; GARDNER V. UNITED STATES, 71 F.2D 63. 

WE DO NOT DISCERN IN RULE 41(B) A PURPOSE TO CHANGE THIS COMMON-LAW
PRINCIPLE WITH RESPECT TO DISMISSALS IN WHICH THE MERITS COULD NOT BE
REACHED FOR FAILURE OF THE PLAINTIFF TO SATISFY A PRECONDITION.  ALL OF
THE DISMISSALS ENUMERATED IN RULE 41(B) WHICH OPERATE AS ADJUDICATIONS
ON THE MERITS - FAILURE OF THE PLAINTIFF TO PROSECUTE, OR TO COMPLY
WITH THE RULES OF CIVIL PROCEDURE, OR TO COMPLY WITH AN ORDER OF THE
COURT, OR TO PRESENT EVIDENCE SHOWING A RIGHT TO THE RELIEF ON THE
FACTS AND THE LAW - PRIMARILY INVOLVE SITUATIONS IN WHICH THE DEFENDANT
MUST INCUR THE INCONVENIENCE OF PREPARING TO MEET THE MERITS BECAUSE
THERE IS NO INITIAL BAR TO THE COURT'S REACHING THEM.  IT IS THEREFORE
LOGICAL THAT A DISMISSAL ON ONE OF THESE GROUNDS SHOULD, UNLESS THE
COURT OTHERWISE SPECIFIES, BAR A SUBSEQUENT ACTION.  IN DEFINING THE
SITUATIONS WHERE DISMISSALS "NOT PROVIDED FOR IN THIS RULE" ALSO
OPERATE AS ADJUDICATIONS ON THE MERITS, AND ARE NOT TO BE DEEMED
JURISDICTIONAL, IT SEEMS REASONABLE TO CONFINE THEM TO THOSE SITUATIONS
WHERE THE POLICY BEHIND THE ENUMERATED GROUNDS IS EQUALLY APPLICABLE. 
THUS A SUA SPONTE DISMISSAL BY THE COURT FOR FAILURE OF THE PLAINTIFF
TO COMPLY WITH AN ORDER OF THE COURT SHOULD BE GOVERNED BY THE SAME
POLICY.  ALTHOUGH A SUA SPONTE DISMISSAL IS NOT AN ENUMERATED GROUND,
HERE TOO THE DEFENDANT HAS BEEN PUT TO THE TROUBLE OF PREPARING HIS
DEFENSE BECAUSE THERE WAS NO INITIAL BAR TO THE COURT'S REACHING THE
MERITS.  SEE UNITED STATES V. PROCTER & GAMBLE CO., 356 U.S. 677, 680,
AND FOOTNOTE 4; AMERICAN NAT. BANK & TRUST CO. V. UNITED STATES, 79
U.S. APP. D.C. 62, 142 F.2D 571.  (FN5) 

IN CONTRAST, THE FAILURE OF THE GOVERNMENT TO FILE THE AFFIDAVIT OF
GOOD CAUSE IN A DENATURALIZATION PROCEEDING DOES NOT PRESENT A
SITUATION CALLING FOR THE APPLICATION OF THE POLICY MAKING DISMISSALS
OPERATIVE AS ADJUDICATIONS ON THE MERITS.  THE DEFENDANT IS NOT PUT TO
THE NECESSITY OF PREPARING A DEFENSE BECAUSE THE FAILURE OF THE
GOVERNMENT TO FILE THE AFFIDAVIT WITH THE COMPLAINT REQUIRES THE
DISMISSAL OF THE PROCEEDING.  NOTHING IN THE TERM "JURISDICTION"
REQUIRES GIVING IT THE LIMITED MEANING THAT THE PETITIONER WOULD
ASCRIBE TO IT.  AMONG THE TERMS OF ART IN THE LAW, "JURISDICTION" CAN
HARDLY BE SAID TO HAVE A FIXED CONTENT.  IT HAS BEEN APPLIED TO
CHARACTERIZE OTHER PREREQUISITES OF ADJUDICATION WHICH WILL NOT BE RE
EXAMINED IN SUBSEQUENT PROCEEDINGS AND MUST BE BROUGHT INTO CONTROVERSY
IN THE ORIGINAL ACTION IF A DEFENDANT IS TO LITIGATE THEM AT ALL.  SEE,
E.G., DES MOINES NAVIGATION & R. CO. V. IOWA HOMESTEAD CO., 123 U.S.
552 (DIVERSITY OF CITIZENSHIP); IN RE SAWYER, 124 U.S. 200, 220-221
(JURISDICTIONAL AMOUNT).  SEE GENERALLY NOBLE V. UNION RIVER LOGGING R.
CO., 147 U.S. 165, 173-174.  DECISIONS IN THE LOWER COURTS APPLYING THE
EXCEPTION CONSTRUE "JURISDICTION" TO ENCOMPASS DISMISSALS ON GROUNDS
SIMILAR TO THAT IN THE PRESENT CASE.  SEE MADDEN V. PERRY, 264 F.2D
169; MYERS V. WESTLAND OIL CO., 96 F. SUPP. 667, REVERSED ON OTHER
GROUNDS, 181 F.2D 371.  WE THEREFORE HOLD THAT THE GOVERNMENT WAS NOT
BARRED FROM INSTITUTING THE PRESENT PROCEEDING.  AFFIRMED. 

FN1  THE STATUTE, 66 STAT. 260, AS AMENDED, 68 STAT. 1232; 8 U.S.C.
SEC. 1451, READS IN PERTINENT PART AS FOLLOWS: 

"(A) CONCEALMENT OF MATERIAL EVIDENCE; REFUSAL TO TESTIFY. 

"IT SHALL BE THE DUTY OF THE UNITED STATES ATTORNEYS FOR THE
RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD CAUSE THEREFOR, TO
INSTITUTE PROCEEDINGS IN ANY COURT SPECIFIED IN SUBSECTION (A) OF
NATURALIZED CITIZEN MAY RESIDE AT THE TIME OF BRINGING SUIT, FOR THE
PURPOSE OF REVOKING AND SETTING ASIDE THE ORDER ADMITTING SUCH PERSON
TO CITIZENSHIP AND CANCELING THE CERTIFICATE OF NATURALIZATION ON THE
GROUND THAT SUCH ORDER AND CERTIFICATE OF NATURALIZATION WERE PROCURED
BY CONCEALMENT OF A MATERIAL FACT OR BY WILLFUL MISREPRESENTATION, AND
SUCH REVOCATION AND SETTING ASIDE OF THE ORDER ADMITTING SUCH PERSON TO
CITIZENSHIP AND SUCH CANCELING OF CERTIFICATE OF NATURALIZATION SHALL
BE EFFECTIVE AS OF THE ORIGINAL DATE OF THE ORDER AND CERTIFICATE,
RESPECTIVELY:  ...  ." 

FN2  THE DISTRICT COURT ALSO FOUND THAT THE PETITIONER KNOWINGLY AND
WILLFULLY SWORE FALSE ALLEGIANCE TO THE CONSTITUTION AND LAWS OF THE
UNITED STATES.  LIKE THE COURT OF APPEALS, 275 F.2D, AT 360, WE FIND IT
UNNECESSARY TO PASS UPON THE PETITIONER'S ATTACK UPON THIS FINDING,
SINCE WE THINK THAT THE REVOCATION OF HIS CITIZENSHIP ON THE FIRST
GROUND WAS CLEARLY CORRECT. 

FN3  SECTION 340(A) AUTHORIZES DENATURALIZATION ON THE SINGLE GROUND
OF "CONCEALMENT OF A MATERIAL FACT OR  ...  WILLFUL
MISREPRESENTATION."  ITS PREDECESSORS, SEC. 338(A) OF THE NATIONALITY
ACT OF 1940, AND SEC. 15 OF THE ORIGINAL ACT OF CONGRESS IN 1906 GIVING
STATUTORY BASIS FOR DENATURALIZATION, AUTHORIZED DENATURALIZATION FOR
"FRAUD" OR ILLEGAL PROCUREMENT.  THE CHANGE FROM "FRAUD" TO
"CONCEALMENT OF A MATERIAL FACT OR  ...  WILLFUL MISREPRESENTATION"
APPARENTLY WAS MADE PRIMARILY TO REMOVE DOUBT AS TO WHETHER
DENATURALIZATION COULD BE BASED ON SO-CALLED "INTRINSIC" FRAUD, FRAUD
THROUGH FALSE SWEARING IN THE NATURALIZATION PROCEEDINGS, OR ONLY ON
THE TRADITIONAL EQUITY GROUND FOR CANCELLATION OF A JUDGMENT,
"EXTRINSIC" FRAUD, INHERING IN ACTIVITIES COLLATERAL TO THE PROCEEDINGS
THEMSELVES SUCH AS THE CONCEALMENT OF WITNESSES FROM THE COURT. 
CERTAIN LOWER COURT CASES HAD INDICATED THAT ONLY EXTRINSIC FRAUD MIGHT
BE ENCOMPASSED WITHIN THE TERM, COMPARE UNITED STATES V. KUSCHE, 56 F.
SUPP. 201, WITH UNITED STATES V. HAUCK, 155 F.2D 141, IN ACCORDANCE
WITH THE RULE THAT HAD APPARENTLY BEEN APPLIED TO REVOCATION OF A
JUDGMENT ADMITTING TO CITIZENSHIP PRIOR TO THE ACT OF 1906, SEE UNITED
STATES V. GLEESON, 90 F. 778; CF. UNITED STATES V. NORSCH, 42 F. 417. 
CONGRESS THUS ACTED IN 1952 TO MAKE IT CLEAR THAT FALSE STATEMENTS IN
THE COURSE OF THE NATURALIZATION PROCEEDINGS COULD BE THE BASIS FOR
REVOCATION OF CITIZENSHIP.  SEE S. REP. NO. 1515, 81ST CONG., 2D SESS.
756-769.  BUT THERE APPEARS TO BE NO CONGRESSIONAL PURPOSE TO LAY DOWN
A LOOSER DEFINITIONAL STANDARD FOR "WILLFUL MISREPRESENTATION" OR LAXER
REQUIREMENTS OF PROOF THAN HAD PREVIOUSLY BEEN APPLIED BY THE COURTS
WHICH HELD MISSTATEMENTS DURING NATURALIZATION PROCEEDINGS TO
CONSTITUTE FRAUD UNDER THE PRIOR STATUTES.  THE PRACTICE OF THE
IMMIGRATION AND NATURALIZATION SERVICE APPARENTLY TREATED "FRAUD" UNDER
THE OLDER ACTS AS INVOLVING WILLFUL MISREPRESENTATION OR CONCEALMENT OF
MATERIAL FACTS.  SEE S. REP. NO. 1515, 81ST CONG., 2D SESS. 756.    FN4
THE PETITIONER MAKES REFERENCE TO THE OPINION OF THE DISTRICT COURT
RENDERED UPON THE DISMISSAL OF THE FIRST COMPLAINT.  THAT OPINION
RESTED THE CONCLUSION THAT THE AFFIDAVIT OF GOOD CAUSE AND THE EVIDENCE
WERE INFECTED WITH WIRETAPPING PARTLY UPON WIRETAPS SAID TO HAVE BEEN
MADE IN THE 1920'S.  THE DISTRICT JUDGE FOUND "INDICATIONS OF THE
EXTENSIVE USE OF WIRE TAPS COVERING A PERIOD OF MANY YEARS AND
BEGINNING IN THE 1920'S."  145 F. SUPP., AT 894.  HOWEVER, THE DISTRICT
JUDGE IN THIS PROCEEDING HEARD THE TESTIMONY OF TWO FORMER ASSISTANT
UNITED STATES ATTORNEYS WHO CONDUCTED THE INVESTIGATION LEADING TO THE
PETITIONER'S INDICTMENT IN 1925.  THE DISTRICT JUDGE "ACCEPTED AS TRUE"
THEIR TESTIMONY "THAT THE GOVERNMENT'S INFORMATION AS TO THE
BOOTLEGGING ACTIVITIES OF COSTELLO WAS NOT DERIVED FROM TELEPHONE
CONVERSATIONS BUT WAS DERIVED FROM STATEMENTS OF CERTAIN INDIVIDUALS
ACQUAINTED WITH THE DEFENDANT'S ACTIVITIES."  171 F. SUPP., AT 25.  WE
SEE NO BASIS FOR DISTURBING THIS FINDING AND THE DISTRICT COURT'S
CONCLUSION THAT NO TAINT FROM WIRETAPS IN THE 1920'S INFECTED THE LATER
ADMISSIONS MADE BY THE PETITIONER. 

FN5  THE INAPPLICABILITY OF THE POLICY OF THE RULE TO OTHER
DISMISSALS FOR FAILURE TO MEET A PRECONDITION OF ADJUDICATION HAS BEEN
RECOGNIZED.  THE ADVISORY COMMITTEE ON AMENDMENTS TO THE FEDERAL RULES
RECOMMENDED IN 1955 THE ADDITION OF ANOTHER SPECIFIC EXCEPTION, FOR
DISMISSALS FOR "LACK OF AN INDISPENSABLE PARTY."  ALTHOUGH THE PROPOSAL
WAS NOT ADOPTED, ONE COMMENTATOR HAS WRITTEN: 

"UNDOUBTEDLY A DISMISSAL FOR LACK OF AN INDISPENSABLE PARTY SHOULD BE
A DISMISSAL WITHOUT PREJUDICE SINCE THE DISMISSAL PROCEEDS ON THE
THEORY THAT HIS PRESENCE IS REQUIRED IN ORDER THAT THE COURT MAY MAKE
AN ADJUDICATION EQUITABLE TO ALL PERSONS INVOLVED  ...  .  THE
COMMITTEE'S PROPOSAL WOULD, HOWEVER, TAKE CARE OF THE SITUATION WHERE
THE COURT DID NOT SPECIFICALLY PROVIDE THAT THE DISMISSAL WAS WITHOUT
PREJUDICE; AND THUS EXPRESSLY PROVIDE A RESULT WHICH THE COURTS, OF
NECESSITY, WOULD HAVE TO REACH EVEN IF THE DISMISSAL DID NOT SPECIFY
THAT IT WAS WITHOUT PREJUDICE."  5 MOORE, FEDERAL PRACTICE, 1959 CUM.
SUPP., P. 38. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I DO NOT THINK "BOOTLEGGING" PER SE WOULD HAVE BEEN A GROUND FOR
DENYING NATURALIZATION TO AN ALIEN IN THE 1920'S.  IF IT WERE, IT WOULD
BE AN ACT OF HYPOCRISY UNPARALLELED IN AMERICAN LIFE.  FOR THE
"BOOTLEGGER" IN THOSE DAYS CAME INTO BEING BECAUSE OF THE DEMAND OF THE
GREAT BULK OF PEOPLE IN OUR COMMUNITIES - INCLUDING LAWYERS,
PROSECUTORS, AND JUDGES - FOR HIS PRODUCTS.  HOWEVER THAT MAY BE, THE
FORMS OF NATURALIZATION IN USE AT THE TIME DID NOT ASK FOR DISCLOSURE
OF ALL BUSINESS ACTIVITIES OF AN APPLICANT OR OF ALL SOURCES OF
INCOME.  IF THAT HAD BEEN ASKED AND IF ONLY ONE SOURCE OF INCOME WERE
DISCLOSED, THEN THERE WOULD BE A CONCEALMENT RELEVANT TO OUR PRESENT
PROBLEM - WHETHER THE NONDISCLOSED INCOME WAS FROM BOOTLEGGING, PLAYING
THE RACES, BRIDGE OR POKER GAMES, OR SOMETHING ELSE.  THE "OCCUPATION"
OF AN APPLICANT WAS THE QUESTION IN THE FORM COSTELLO FILED.*  THE FORM
OF THE PETITION FOR NATURALIZATION DID NOT ASK FOR MORE; AND UNLESS WE
CAN SAY THAT "REAL ESTATE" WAS NOT HIS "OCCUPATION" THEN WE CANNOT LET
THIS DENATURALIZATION ORDER STAND.  THE KOSLO REALTY CORPORATION
ACTUALLY EXISTED AND PETITIONER WAS ITS PRESIDENT.  IT ACTUALLY ENGAGED
IN REAL ESTATE TRANSACTIONS.  THE FACT THAT THIS REAL ESTATE BUSINESS
WAS SECONDARY IN PETITIONER'S REGIME DID NOT MAKE IT ANY THE LESS HIS
"OCCUPATION."  PETITIONER ANSWERED TRUTHFULLY WHEN HE LISTED "REAL
ESTATE" AS HIS "OCCUPATION."  HE DID NOT ANSWER TRUTHFULLY IF THE
ANSWER IS TAKEN TO EMBRACE ALL HIS SOURCES OF INCOME.  BUT, AS I SAID,
THE FORM DID NOT REQUIRE THAT COMPLETE DISCLOSURE; AND I WOULD NOT
RESOLVE ANY AMBIGUITY IN FAVOR OF THE GOVERNMENT.  WE COULD NOT DO SO
AND BE TRUE TO THE STRICT STANDARD EXACTED FROM THE GOVERNMENT BY
SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 122-123. 

*THE PRINTED FORM OF THE PETITION FOR NATURALIZATION IN USE AT THE
TIME HAD IN IT AS ITEM "SECOND" A LINE HEADED "MY OCCUPATION IS." 
AFTER THESE WORDS PETITIONER ENTERED THE WORDS "REAL ESTATE." 
..END :












UNITED STATES V. LUCCHESE, ALIAS LUCKESE, ALIAS LUCASE, ALIAS ARRA,
ALIAS LUCHESE 365 U.S. 290 


NO. 57.  ARGUED DECEMBER 8, 12, 1960 - DECIDED FEBRUARY 20, 1961 - WRIT
OF CERTIORARI DISMISSED. 


THIS DENATURALIZATION PROCEEDING AGAINST RESPONDENT WAS DISMISSED BY
THE DISTRICT COURT BECAUSE OF FAILURE OF THE GOVERNMENT TO FILE AN
AFFIDAVIT OF GOOD CAUSE WITH THE COMPLAINT, AND THAT COURT DID NOT
SPECIFY THAT THE DISMISSAL WAS "WITHOUT PREJUDICE."  THE COURT OF
APPEALS DISMISSED THE GOVERNMENT'S APPEAL, AND THIS COURT GRANTED
CERTIORARI, WHICH WAS SOUGHT BY THE GOVERNMENT ONLY TO ASSURE ITS RIGHT
TO PROCEED AGAINST RESPONDENT IN A NEW PROCEEDING.  HELD:  UNDER RULE
41(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE, SUCH A FORM OF DISMISSAL
DOES NOT BAR A NEW DENATURALIZATION PROCEEDING AGAINST RESPONDENT,
COSTELLO V. UNITED STATES, ANTE, P. 265, AND, ACCORDINGLY, THE WRIT OF
CERTIORARI IS DISMISSED.  PP. 290-291. 

UNITED STATES V. LUCCHESE, ALIAS LUCKESE, ALIAS LUCASE, ALIAS ARRA,
ALIAS LUCHESE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS DENATURALIZATION PROCEEDING WAS BROUGHT IN THE DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK UNDER SEC. 338(A) OF THE
NATIONALITY ACT OF 1940.  8 U.S.C. (1946 ED.)  SEC.  738.  THE "GOOD
CAUSE" AFFIDAVIT WAS NOT FILED WITH THE COMPLAINT.  THE DISTRICT COURT
DISMISSED THE COMPLAINT FOLLOWING OUR DECISION IN UNITED STATES V.
ZUCCA, 351 U.S. 91, "WITHOUT PREJUDICE TO THE GOVERNMENT'S RIGHT TO
INSTITUTE A PROCEEDING TO DENATURALIZE THE DEFENDANT UPON THE FILING OF
THE REQUIRED AFFIDAVIT."  149 F. SUPP. 952.  THE COURT OF APPEALS FOR
THE SECOND CIRCUIT REVERSED, HOLDING THAT THE DISMISSAL MOTION SHOULD
HAVE BEEN DENIED.  247 F.2D 123.  WE REVERSED AND ORDERED THE CASE
"REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS" THE
COMPLAINT.  356 U.S. 256.  THE DISTRICT COURT ON THE REMAND DECLINED TO
ORDER A DISMISSAL "WITHOUT PREJUDICE" AND INSTEAD ENTERED AN ORDER
WHICH DID NOT SPECIFY WHETHER THE DISMISSAL WAS WITH OR WITHOUT
PREJUDICE.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT DISMISSED THE
GOVERNMENT'S APPEAL IN AN UNREPORTED OPINION WHICH STATED THAT "THERE
WAS NO BASIS FOR THE DISTRICT JUDGE TO TAKE ACTION OTHER THAN HE DID,
NAMELY, TO COMPLY WITH THE CLEAR COMMAND OF THE SUPREME COURT, WITHOUT
ATTEMPTED EMBELLISHMENT.  WE HAVE NO OCCASION NOW TO PASS ON THE EFFECT
OF THAT COMMAND UPON POSSIBLE LATER LITIGATION." 

THE GOVERNMENT FILED ITS PETITION FOR CERTIORARI ONLY TO ASSURE ITS
RIGHT TO PROCEED AGAINST THE RESPONDENT IN A NEW PROCEEDING IN THE
EVENT THAT WE SHOULD RULE IN COSTELLO V. UNITED STATES, ANTE, P. 265,
THAT THE ORDER ENTERED BY THE DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK IN THAT CASE PRECLUDED THE INSTITUTION OF THE SECOND
DENATURALIZATION ACTION AGAINST COSTELLO.  OUR DECISION TODAY IN
COSTELLO ESTABLISHES THAT SUCH A FORM OF DISMISSAL DOES NOT BAR A
SUBSEQUENT PROCEEDING AGAINST THE RESPONDENT.  THE WRIT IS THEREFORE
DISMISSED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














BULLOCK V. SOUTH CAROLINA 365 U.S. 292 


NO. 78.  ARGUED JANUARY 9, 1961 - DECIDED FEBRUARY 20, 1961 - REPORTED
BELOW:  235 S.C. 356, 111 S.E.2D 657. 


THE TOTALITY OF CIRCUMSTANCES AS THE RECORD MAKES THEM MANIFEST DID
NOT WARRANT BRINGING THIS CASE HERE, AND THE WRIT OF CERTIORARI IS
DISMISSED. 

BULLOCK V. SOUTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

PER CURIAM. 

AFTER HEARING ORAL ARGUMENT AND FULLY EXAMINING THE RECORD WHICH WAS
ONLY PARTIALLY SET FORTH IN THE PETITION FOR CERTIORARI, WE CONCLUDE
THAT THE TOTALITY OF CIRCUMSTANCES AS THE RECORD MAKES THEM MANIFEST
DID NOT WARRANT BRINGING THE CASE HERE.  ACCORDINGLY, THE WRIT IS
DISMISSED. 
..END :









NOLAN V. TRANSOCEAN AIR LINES 365 U.S. 293 


NO. 107.  ARGUED JANUARY 12, 16, 1961 - DECIDED FEBRUARY 20, 1961 -
REPORTED BELOW: 276 F.2D 280. 


WITH JURISDICTION BASED SOLELY ON DIVERSITY OF CITIZENSHIP, THIS
ACTION WAS BROUGHT IN A FEDERAL DISTRICT COURT IN NEW YORK TO RECOVER
UNDER THE CALIFORNIA WRONGFUL DEATH STATUTE FOR THE DEATH IN CALIFORNIA
OF A PASSENGER ON AN AIRPLANE OPERATED BY A CALIFORNIA CORPORATION. 
APPLYING WHAT IT BELIEVED TO BE APPLICABLE CALIFORNIA LAW, AS DECLARED
BY ITS INTERMEDIATE APPELLATE TRIBUNALS, THE DISTRICT COURT DISMISSED
THE ACTION AS BARRED BY LIMITATIONS, AND THE COURT OF APPEALS
AFFIRMED.  HELD:  THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR RECONSIDERATION IN THE LIGHT OF
A CONSIDERED DICTUM OF THE SUPREME COURT OF CALIFORNIA, ANNOUNCED AFTER
THE RULING OF THE DISTRICT COURT AND NOT BROUGHT TO THE ATTENTION OF
THE COURT OF APPEALS, WHICH MIGHT LEAD TO A DIFFERENT RESULT.  PP. 293
296. 

NOLAN, ADMINISTRATOR, ET AL. V. TRANSOCEAN AIR LINES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THIS ACTION WAS BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK TO RECOVER DAMAGES FOR THE WRONGFUL DEATH
OF JASPER W. HALL, A RESIDENT OF SOUTH CAROLINA, WHO WAS KILLED IN
CALIFORNIA IN THE CRASH OF AN AIRPLANE OPERATED BY DEFENDANT-RESPONDENT
TRANSOCEAN AIR LINES.  PLAINTIFFS, PETITIONERS HERE, ARE THE DECEDENT'S
SOUTH CAROLINA-APPOINTED ADMINISTRATOR, DECEDENT'S WIDOW, AND
DECEDENT'S MINOR CHILD, WHO SUES THROUGH THE WIDOW, HER MOTHER,
APPOINTED HER GUARDIAN AD LITEM BY THE DISTRICT COURT.  FEDERAL
JURISDICTION WAS PREDICATED SOLELY ON DIVERSITY OF CITIZENSHIP - THE
ADMINISTRATOR BEING A NEW YORK RESIDENT, THE WIDOW AND CHILD SOUTH
CAROLINA RESIDENTS, THE AIRLINE A CALIFORNIA CORPORATION WITH ITS
PRINCIPAL PLACE OF BUSINESS IN CALIFORNIA - AND THE SUBSTANTIVE BASIS
OF THE CLAIM WAS CALIFORNIA'S WRONGFUL DEATH STATUTE, CAL. CODE CIV.
PROC. SEC. 377, MADE APPLICABLE BY THE NEW YORK CHOICE-OF-LAW RULES,
SEE BALDWIN V. POWELL, 294 N.Y. 130, 61 N.E.2D 412, WHICH GOVERN THIS
DIVERSITY ACTION.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64; KLAXON CO. V.
STENTOR ELEC.  MFG.  CO., 313 U.S. 487.  THE DEFENDANT, BY ITS ANSWER,
SET UP THE STATUTE OF LIMITATIONS, AND SUBSEQUENTLY MOVED FOR SUMMARY
JUDGMENT ON THE GROUND THAT THE ACTION WAS TIME-BARRED.  ENFORCING THE
ONE-YEAR LIMITATIONS PERIOD DEEMED CONTROLLING UNDER CAL. CODE CIV.
PROC. SEC. 340, BROUGHT INTO OPERATION BY NEW YORK'S "BORROWING
STATUTE," N.Y. CIV. PRAC.  ACT SEC. 13, THE DISTRICT COURT HELD THAT
THE STATUTE HAD RUN AS TO THE WIDOW, AND HENCE THAT THE CHILD AND THE
ADMINISTRATOR WERE ALSO BARRED UNDER THE CALIFORNIA DOCTRINE, ANNOUNCED
BY CALIFORNIA DISTRICT COURTS OF APPEAL IN SEARS V. MAJORS, 104 CAL.
APP. 60, 285 PAC. 321, AND HARO V. SOUTHERN P.R. CO., 17 CAL. APP. 2D
594, 62 P.2D 441, THAT WHERE ONE BENEFICIARY OF A WRONGFUL DEATH CLAIM
IS TIME-BARRED, ALL BENEFICIARIES ARE TIME-BARRED, THE CAUSE OF ACTION
BEING "JOINT."  173 F. SUPP. 114.   THERE WAS NO DECISION ON THIS
PRECISE POINT BY THE SUPREME COURT OF CALIFORNIA; THAT COURT HAD LEFT
SEARS AND HARO UNDISTURBED.  SEE ALSO GATES V. WENDLING NATHAN CO., 27
CAL. APP. 2D 307, 81 P.2D 173; GLAVICH V. INDUSTRIAL ACCIDENT COMM'N,
44 CAL. APP. 2D 517, 112 P.2D 774 (DICTUM).  THE DISTRICT COURT'S ORDER
GRANTING THE MOTION FOR SUMMARY JUDGMENT WAS AFFIRMED BY THE COURT OF
APPEALS FOR THE SECOND CIRCUIT.  276 F.2D 280.  WE GRANTED CERTIORARI. 
363 U.S. 836. 

THE WRIT BROUGHT HERE SEVERAL POINTS DECIDED ADVERSELY TO PETITIONERS
BELOW.  WE NEED DISCUSS ONLY ONE ISSUE, FOR ITS DETERMINATION DISPOSES
OF THE CASE.  THE SEARS AND HARO CASES, REGARDED BY THE DISTRICT COURT
AND THE COURT OF APPEALS AS CONTROLLING THE EFFECT UPON A CLAIM FOR
WRONGFUL DEATH OF THE RUNNING OF THE STATUTE OF LIMITATIONS UPON ONE
BUT NOT UPON ANOTHER OF THE DECEDENT'S HEIRS (THE LATTER BEING UNDER A
LIMITATIONS-TOLLING DISABILITY), WERE DECIDED IN 1930 AND 1936,
RESPECTIVELY, AND GATES IN 1938, BY CALIFORNIA DISTRICT COURTS OF
APPEAL.  IN DECEMBER 1959, THE SUPREME COURT OF CALIFORNIA, EN BANC,
DECIDED LEEPER V. BELTRAMI, 53 CAL. 2D 195, 347 P.2D 12, WHICH, IN A
CONSIDERED DICTUM CONSTRUING CAL. CODE CIV. PROC. SEC. 352, STATED:
"IF THE CAUSE OF ACTION WERE A JOINT ONE, THE STATUTE WOULD BE TOLLED
AS TO BOTH.  'IF AN ACTION NOT SEVERABLE IS NOT BARRED AS TO ONE OF THE
PARTIES ON ACCOUNT OF HIS INFANCY AT THE TIME THE CAUSE OF ACTION
AROSE, IT IS NOT BARRED AS TO EITHER OF THE OTHER PARTIES.'"  ID., AT
208-209, 347 P.2D, AT 22. 

THIS CASE WAS HANDED DOWN AFTER THE DISTRICT COURT'S RULING GRANTING
SUMMARY JUDGMENT FOR RESPONDENT IN THE PRESENT LITIGATION, AND ONLY
SHORTLY BEFORE ARGUMENT IN THE COURT OF APPEALS.  IT WAS NOT BROUGHT TO
THE ATTENTION OF, AND WAS NOT CONSIDERED BY, THAT COURT.  INASMUCH AS
THE VIEW EXPRESSED THEREIN BY THE HIGHEST COURT OF CALIFORNIA MAY BE
DECISIVE OF AN ISSUE CRITICAL TO PETITIONERS' CLAIMS, AND INASMUCH AS
THE COURT OF APPEALS FOR THE SECOND CIRCUIT IS CHARGED WITH MANDATORY
APPELLATE REVIEW IN THE PRESENT CASE, THAT COURT SHOULD DECIDE WHAT
RELATIVE WEIGHTS, AS AUTHORITATIVE SOURCES FOR ASCERTAINING CALIFORNIA
LAW, THE NEW YORK COURT OF APPEALS WOULD ACCORD TO THE SEARS-HARO LINE
(DIRECT HOLDINGS OF DISTRICT COURTS OF APPEAL BETWEEN 1930 AND 1938)
AND TO LEEPER (A CONSIDERED, RELEVANT DICTUM OF GENERAL SCOPE BY THE
CALIFORNIA SUPREME COURT IN 1959).  WE SET ASIDE THE JUDGMENT OF THE
COURT OF APPEALS AND REMAND TO THAT COURT FOR RECONSIDERATION OF THE
CASE IN LIGHT OF THE NEW FACTOR INTRODUCED BY LEEPER V. BELTRAMI,
SUPRA.  SO ORDERED. 
..END :





















GATES V. CALIFORNIA 365 U.S. 297 


NO. 528, MISC.  DECIDED FEBRUARY 20, 1961 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


GATES V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















NATIONAL LABOR RELATIONS BOARD V. CELANESE CORP. OF AMERICA 365 U.S.
297 


NO. 382.  DECIDED FEBRUARY 20, 1961 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  279 F.2D 204. 


NATIONAL LABOR RELATIONS BOARD V. CELANESE CORPORATION OF AMERICA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS FOR
CONSIDERATION IN THE LIGHT OF LABOR BOARD V. MATTISON MACHINE WORKS,
ANTE, P. 123. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE STEWART ARE OF THE OPINION THAT
CERTIORARI SHOULD BE DENIED. 
..END :










NATIONAL PSYCHOLOGICAL ASSOCIATION FOR PSYCHOANALYSIS, INC. V.
UNIVERSITY OF THE STATE OF NEW YORK 365 U.S. 298 


NO. 568.  DECIDED FEBRUARY 20, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  8 N.Y.2D 197, 168
N.E.2D 649. 


NATIONAL PSYCHOLOGICAL ASSOCIATION FOR PSYCHOANALYSIS, INC., ET AL. V.
UNIVERSITY OF THE STATE OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














TURPENTINE & ROSIN FACTORS, INC. V. UNITED STATES 365 U.S. 298 


NO. 556.  DECIDED FEBRUARY 20, 1961 - 192 F. SUPP. 256, AFFIRMED. 


TURPENTINE & ROSIN FACTORS, INC., V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF GEORGIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















CORDAK, DBA A.B. DENTAL PLATE LABORATORY V. REUBEN H. DONNELLEY CORP.
365 U.S. 299 


NO. 582.  DECIDED FEBRUARY 20, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  20 ILL. 2D 153, 169
N.E.2D 321. 


CORDAK, DOING BUSINESS AS A.B. DENTAL PLATE LABORATORY, ET AL. V. REUBEN
H. DONNELLEY CORP. ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














SNYDER V. TOWN OF NEWTOWN 365 U.S. 299 


NO. 580.  DECIDED FEBRUARY 20, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  147 CONN. 374, 161
A.2D 770. 


SNYDER ET AL. V. TOWN OF NEWTOWN ET AL. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS ARE OF THE OPINION
THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :













BROOKS V. SOUTH CAROLINA 365 U.S. 300 


NO. 610, MISC.  DECIDED FEBRUARY 20, 1961.  - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW:  235 S.C. 344, 111 S.E.2D 686. 


BROOKS V. SOUTH CAROLINA. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















SYNANON FOUNDATION, INC. V. CALIFORNIA 365 U.S. 300 


NO. 607.  DECIDED FEBRUARY 20, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


SYNANON FOUNDATION, INC., ET AL. V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















FEDERAL POWER COMMISSION V. TRANSCONTINENTAL GAS PIPE LINE CORP. 365
U.S. 1 


NO. 45.  ARGUED NOVEMBER 15, 1960 - DECIDED JANUARY 23, 1961* - 271 F.2D
942, REVERSED. 

*TOGETHER WITH NO. 46, NATIONAL COAL ASSOCIATION ET AL. V.
TRANSCONTINENTAL GAS PIPE LINE CORP. ET AL., ALSO ON CERTIORARI TO THE
SAME COURT. 


A PUBLIC UTILITY COMPANY IN NEW YORK CONTRACTED FOR THE DIRECT
PURCHASE OF NATURAL GAS FROM PRODUCERS IN TEXAS, NOT FOR RESALE BUT FOR
CONSUMPTION UNDER ITS OWN BOILERS, AND IT ARRANGED WITH A PIPELINE
COMPANY FOR TRANSPORTATION OF THE GAS TO NEW YORK CITY.  THE PIPELINE
COMPANY APPLIED TO THE FEDERAL POWER COMMISSION FOR A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY UNDER SEC. 7(E) OF THE NATURAL GAS ACT
AND OFFERED PROOF, WHICH WAS NOT CHALLENGED, THAT ITS APPLICATION MET
ALL THE CONVENTIONAL TESTS.  THE COMMISSION DENIED THE CERTIFICATE
AFTER CONSIDERING, INTER ALIA, THE DESIRABILITY OF THE PARTICULAR END
USE TO WHICH THIS GAS WOULD BE PUT, THE POSSIBILITY OF PRE-EMPTION OF
PIPELINE CAPACITY AND GAS RESERVES BY SALES TO INDUSTRIAL USERS, THE
PRICE AGREED UPON, AND THE EFFECT OF THIS AND SIMILAR FUTURE
TRANSACTIONS ON THE PRICE AND AVAILABILITY OF NATURAL GAS GENERALLY. 
HELD:  THE COMMISSION DID NOT EXCEED ITS AUTHORITY OR ABUSE ITS
DISCRETION IN DENYING THE CERTIFICATE ON THE BASIS OF THESE
CONSIDERATIONS.  PP. 3-31. 

(A)  THE DESIRABILITY OF THE USE TO WHICH THE GAS WOULD BE PUT AND
THE POSSIBILITY OF PRE-EMPTION OF PIPELINE CAPACITY AND GAS RESERVES BY
SALES TO INDUSTRIAL USERS WERE PROPERLY OF CONCERN TO THE COMMISSION IN
PASSING ON THIS APPLICATION.  PP. 8-22. 

(B)  IN CONSIDERING THIS APPLICATION, IT WAS PROPER FOR THE
COMMISSION TO CONSIDER THE EFFECT WHICH THE HIGH PRICE CHARGED IN THE
SALE HERE INVOLVED WOULD HAVE ON FUTURE FIELD PRICES FOR NATURAL GAS. 
PP. 23-28. 

(C)  THE COMMISSION DID NOT ERR BY TAKING COGNIZANCE OF
CONSIDERATIONS DEHORS THE RECORD IN CONCLUDING THAT WIDESPREAD DIRECT
SALES AT HIGH PRICES PROBABLY WOULD RESULT IN PRICE INCREASES.  PP. 28
30. 

(D)  IT CANNOT BE SAID THAT THE COMMISSION ACTED IRRATIONALLY IN
CONCLUDING THAT THE EVIDENCE OFFERED BY THE PURCHASER WAS INSUFFICIENT
TO ESTABLISH THAT ITS USE OF THE GAS WAS JUSTIFIED BY THE NEED TO
REDUCE AIR POLLUTION.  P. 30. 

FEDERAL POWER COMMISSION V. TRANSCONTINENTAL GAS PIPE LINE CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THESE CASES IS WHETHER THE FEDERAL POWER COMMISSION
HAS GONE BEYOND THE SCOPE OF ITS DELEGATED AUTHORITY IN DENYING A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY UNDER SEC. 7(E) OF THE
NATURAL GAS ACT OF 1938, 52 STAT. 821, AS AMENDED, 15 U.S.C. SEC. 717
ET SEQ. (FN1)  THE PRINCIPAL RESPONDENTS (FN2) ARE TRANSCONTINENTAL GAS
PIPE LINE CORP. (TRANSCO), A PIPELINE COMPANY ENGAGED IN TRANSPORTING
NATURAL GAS IN INTERSTATE COMMERCE, AND CONSOLIDATED EDISON CO.
(CON.ED.), A PUBLIC UTILITY IN NEW YORK CITY WHICH USES GAS UNDER ITS
BOILERS AND ALSO SELLS GAS TO DOMESTIC CONSUMERS.  IN 1957 CON.  ED.
CONTRACTED TO PURCHASE GAS FROM PRODUCERS IN THE NORMANNA AND SEJITA
FIELDS IN TEXAS AT 19 1/4 CENTS PER MCF., THE CONTRACTS OF SALE
CONTAINING A PROHIBITION ON RESALE OF THE GAS BY CON.  ED.  THIS
TRANSACTION IS COMMONLY LABELED A "DIRECT" SALE AND, BECAUSE IT DOES
NOT ENTAIL A SALE FOR RESALE IN INTERSTATE COMMERCE, IS NOT SUBJECT TO
THE COMMISSION'S JURISDICTION EXCEPT INSOFAR AS SEC. 7 REQUIRES THE
COMMISSION TO CERTIFICATE THE TRANSPORTATION OF GAS PURSUANT TO THE
SALE. 

CON. ED. THEN ARRANGED WITH TRANSCO FOR WHAT IS CALLED IN THE RECORD
"X-20" SERVICE.  UNDER THE CONTRACT, TRANSCO AGREED TO TRANSPORT 50,000
MCF.  DAILY TO CON.  ED. IN NEW YORK FOR USE UNDER CON.  ED.'S BOILERS,
PRINCIPALLY TWO BOILERS AT CON.  ED.'S WATERSIDE STATION WHICH WERE
THEN BEING FIRED BY COAL.  ADDITIONALLY, DURING A 60-DAY PEAK PERIOD,
TRANSCO AGREED TO SELL 50,000 MCF.  TO CON.  ED. FROM TRANSCO'S OWN
RESERVES WITHOUT RESTRICTIONS AS TO RESALE.  THIS 60-DAY SUPPLY WAS
DESIGNED FOR USE BY CON.  ED.'S CUSTOMERS DURING THE WINTER PERIOD WHEN
HEATING DEMANDS WERE AT THEIR HIGHEST.  TRANSCO SOUGHT A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY FOR THE PROPOSED X-20 SERVICE IN
CONNECTION WITH ITS PLAN TO CONDUCT A MAJOR EXPANSION OF ITS PIPELINE
CAPACITY AND STORAGE FACILITIES. 

BEFORE THE HEARING EXAMINER, TRANSCO'S APPLICATION WAS OPPOSED BY THE
FPC STAFF AND GROUPS REPRESENTING THE COAL INDUSTRY.  CON.  ED.
INTERVENED IN FAVOR OF TRANSCO'S PROPOSAL.  TRANSCO OFFERED PROOF THAT
ITS APPLICATION MET ALL THE CONVENTIONAL TESTS - ADEQUATE GAS RESERVES,
PIPELINE FACILITIES AND MARKET FOR THE GAS - AND THIS SHOWING, WITH ONE
IMMATERIAL EXCEPTION, HAS NEVER BEEN CHALLENGED.  HOWEVER, THE FPC'S
STAFF ARGUED VIGOROUSLY THAT THE PUBLIC INTEREST WOULD SUFFER WERE
TRANSCO'S PETITION GRANTED.  AMONG THE GROUNDS ADVANCED WERE THAT THE
GAS WAS TO BE TRANSPORTED FOR USE UNDER INDUSTRIAL BOILERS, THIS
DISPOSITION BEING AN "INFERIOR" USE FROM THE STANDPOINT OF CONSERVING A
VALUABLE NATURAL RESOURCE; THAT AUTHORIZATION OF THIS AND SIMILAR
DIRECT SALES TO MAJOR INDUSTRIAL USERS WOULD RESULT IN PRE-EMPTION OF
PIPELINE CAPACITY AND GAS RESERVES TO THE DETRIMENT OF DOMESTIC
CONSUMERS COMPETING FOR GAS SUPPLY; AND THAT THE EFFECT OF THIS SALE,
AS WELL AS THE RESULTING INCREASE IN DIRECT SALES, WOULD EFFECT A
GENERAL RISE IN FIELD PRICES.  THESE CONTENTIONS WERE PRESENTED AS
"POLICY" ARGUMENTS AND NO TESTIMONY WAS TAKEN IN SUPPORT.  CON.  ED.
CONTENDED IN RETURN THAT CERTIFICATION WAS IN THE PUBLIC INTEREST,
PRINCIPALLY BECAUSE A FIRM SUPPLY OF NATURAL GAS UNDER THE WATERSIDE
BOILERS WOULD REDUCE THE AIR POLLUTION PROBLEM THEN BEING AGGRAVATED BY
FLY-ASH AND SULPHUR DIOXIDE EMISSIONS FROM THESE BOILERS.  THE
WATERSIDE STATION IS LOCATED NEAR THE HEADQUARTERS BUILDING OF THE
UNITED NATIONS, AND CON.  ED. INTRODUCED EXPERT TESTIMONY INDICATING
THAT THE WATERSIDE BOILERS WERE MAJOR CONTRIBUTORS TO THE AIR POLLUTION
PROBLEM IN THE AREA.  RESPONDENTS ALSO CONTENDED THAT THE FACTORS
PROPOUNDED BY THE FPC'S STAFF WERE NOT OPEN FOR CONSIDERATION IN A SEC.
7 PROCEEDING.  THE HEARING EXAMINER AGREED WITH RESPONDENTS THAT HIS
DETERMINATION WAS LIMITED TO CONVENTIONAL FACTORS AND CONSEQUENTLY
RECOMMENDED CERTIFICATION.  HE QUALIFIED HIS RECOMMENDATION, HOWEVER,
WITH A STATEMENT THAT, IF HE WERE AUTHORIZED TO CONSIDER THE POLICY
ARGUMENT RELATED TO THE END USE OF THE GAS ADVANCED BY THE FPC STAFF,
HE WOULD COME TO THE OPPOSITE CONCLUSION.  HE INDICATED THAT
RESPONDENTS' PROOF CONCERNING THE AIR POLLUTION PROBLEM WAS NOT
SUFFICIENTLY COMPELLING TO OVERCOME THIS CONTRARY ARGUMENT. 

ON REVIEW BEFORE THE FULL FPC, THE COMMISSION HELD THAT THE BROAD
CONSIDERATIONS ADVANCED BY ITS STAFF WERE COGNIZABLE IN A SEC. 7
PROCEEDING.  THE COMMISSION AGREED WITH RESPONDENTS THAT THE "IDEA OF
AMELIORATING A SMOKE CONDITION FOUND UNPLEASANT AND ANNOYING  ...  IS
AN ATTRACTIVE ONE" BUT CONCLUDED THAT "MORE WEIGHTY CONSIDERATIONS
COMPEL THE DENIAL OF THE GRANT."  21 F.P.C. 138, 142.  RESPONDENTS
SOUGHT A REHEARING BEFORE THE COMMISSION AND, UPON DENIAL OF THAT
PETITION, 21 F.P.C. 399, APPEALED TO THE COURT OF APPEALS.  THE COURT
OF APPEALS REINSTATED THE CONCLUSION OF THE HEARING EXAMINER THAT THE
POLICY CONSIDERATIONS ADVANCED BY THE FPC WERE OUTSIDE THE SCOPE OF A
SEC. 7 PROCEEDING.  THE COURT RELIED PRINCIPALLY ON SEC. 1(B) OF THE
NATURAL GAS ACT, 15 U.S.C. SEC. 717(B), WHICH PROVIDES: 

"THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

THE COURT ALSO EXPRESSED SYMPATHY WITH RESPONDENTS' CONTENTION THAT
THE COMMISSION HAD GIVEN INADEQUATE WEIGHT TO THE AIR POLLUTION FACTOR;
BUT THE HOLDING BELOW DOES NOT APPEAR TO BE BASED ON THAT GROUND.  271
F.2D 942. 

THE PRINCIPAL QUESTION BEFORE THIS COURT, THEN, IS WHETHER CONGRESS
INTENDED TO PRECLUDE THE COMMISSION FROM DENYING CERTIFICATION ON THE
BASIS OF THE POLICY CONSIDERATIONS ADVANCED BY ITS STAFF.  FOR PURPOSES
OF ANALYSIS, THE LITIGANTS HAVE GROUPED THESE FACTORS INTO TWO BROAD
CATEGORIES.  THE FIRST HAS BEEN LABELED THE "END USE" FACTOR AND
REFLECTS THE COMMISSION'S CONCERN THAT CON.  ED.'S PROPOSED "INFERIOR"
USE OF GAS UNDER ITS INDUSTRIAL BOILERS WOULD BE WASTEFUL OF GAS
COMMITTED TO THE COMMISSION'S JURISDICTION AND, BY THE SAME TOKEN,
WOULD PRE-EMPT SPACE IN PIPELINES THAT MIGHT OTHERWISE BE USED FOR
TRANSPORTATION OF GAS FOR SUPERIOR USES.  THE SECOND MAY BE CALLED THE
"PRICE" CONSIDERATION AND INVOLVES THE COMMISSION'S FEAR THAT THIS SALE
- WHICH WAS EXECUTED AT A PRICE HIGHER THAN THE MAXIMUM FIXED BY THE
COMMISSION IN THE PRODUCING DISTRICTS HERE INVOLVED - WOULD INCREASE
THE PRICE OF NATURAL GAS IN THE FIELD, THUS TRIGGERING A RISE IN THE
PRICE PROVISIONS IN OTHER CONTRACTS. 

IN LIGHT OF WHAT THIS COURT HAS SAID ON PRIOR OCCASIONS CONCERNING
THE TERM "PUBLIC CONVENIENCE AND NECESSITY" IN ANALOGOUS STATUTES, THE
READY INFERENCE IS THAT THE COMMISSION HAS THE POWER TO CONSIDER THE
"END USE" AND "PRICE" FACTORS.  FOR EXAMPLE, IN UNITED STATES V.
DETROIT & CLEVELAND NAVIGATION CO., 326 U.S. 236, 241, THE COURT
CONCLUDED THAT: 

"THE COMMISSION IS THE GUARDIAN OF THE PUBLIC INTEREST IN DETERMINING
WHETHER CERTIFICATES OF CONVENIENCE AND NECESSITY SHALL BE GRANTED. 
FOR THE PERFORMANCE OF THAT FUNCTION THE COMMISSION HAS BEEN ENTRUSTED
WITH A WIDE RANGE OF DISCRETIONARY AUTHORITY.  INTERSTATE COMMERCE
COMMISSION V. PARKER, 326 U.S. 60.  ITS FUNCTION IS NOT ONLY TO
APPRAISE THE FACTS AND TO DRAW INFERENCES FROM THEM BUT ALSO TO BRING
TO BEAR UPON THE PROBLEM AN EXPERT JUDGMENT AND TO DETERMINE FROM ITS
ANALYSIS OF THE TOTAL SITUATION ON WHICH SIDE OF THE CONTROVERSY THE
PUBLIC INTEREST LIES.  ITS DOUBT THAT THE PUBLIC INTEREST WILL BE
ADEQUATELY SERVED IF RESUMPTION OF SERVICE IS LEFT TO EXISTING CARRIERS
IS ENTITLED TO THE SAME RESPECT AS ITS EXPERT JUDGMENT, ON OTHER
COMPLICATED TRANSPORTATION PROBLEMS  ...  ."  SEE INTERSTATE COMMERCE
COMM'N V. RAILWAY LABOR EXECUTIVES ASSN., 315 U.S. 373, 376-377. 

IN FACT, IN INTERPRETING THIS VERY SECTION, WE SAID THAT "SEC.  7(E)
REQUIRES THE COMMISSION TO EVALUATE ALL FACTORS BEARING ON THE PUBLIC
INTEREST."  ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N, 360 U.S.
378, 391.  HOWEVER, RESPONDENTS CORRECTLY POINT OUT THAT CONGRESS, IN
ENACTING THE NATURAL GAS ACT, DID NOT GIVE THE COMMISSION COMPREHENSIVE
POWERS OVER EVERY INCIDENT OF GAS PRODUCTION, TRANSPORTATION AND SALE. 
RATHER, CONGRESS WAS "METICULOUS" ONLY TO INVEST THE COMMISSION WITH
AUTHORITY OVER CERTAIN ASPECTS OF THIS FIELD, LEAVING THE RESIDUE FOR
STATE REGULATION.  PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE
COMM'N, 332 U.S. 507.  THEREFORE, IT IS NECESSARY TO CONSIDER WITH CARE
WHETHER, DESPITE THE ACCEPTED MEANING OF THE TERM "PUBLIC CONVENIENCE
AND NECESSITY," THE COMMISSION HAS TROD ON FORBIDDEN GROUND IN MAKING
ITS DECISION. 

END USE.  NO ONE DISPUTES THAT NATURAL GAS IS A WASTING RESOURCE AND
THAT THE NECESSITY FOR CONSERVING IT IS PARAMOUNT.  (FN3)  AS WE SEE
IT, THE QUESTION IN THIS CASE IS WHETHER THE COMMISSION, THROUGH ITS
CERTIFICATION POWER, MAY PREVENT THE WASTE OF GAS COMMITTED TO ITS
JURISDICTION.  ONE APPARENT METHOD OF PREVENTING WASTE OF GAS IS TO
LIMIT THE USES TO WHICH IT MAY BE PUT, USES FOR WHICH ANOTHER, MORE
ABUNDANT FUEL MAY SERVE EQUALLY WELL.  THUS THE COMMISSION IN THIS
CASE, AS IT OFTEN HAS IN THE PAST, (FN4) HAS DECLARED THAT THE USE OF
GAS UNDER INDUSTRIAL BOILERS IS AN "INFERIOR" USE, THE ASSUMPTION BEING
THAT OTHER FUELS, PARTICULARLY COAL, ARE AN ADEQUATE SUBSTITUTE (FN5)
IN AREAS WHERE SUCH OTHER FUELS ABOUND.  HOWEVER, RESPONDENTS, WHILE
CONCEDING THE PREMISE THAT GAS MAY BE WASTED WHERE COAL IS READILY
AVAILABLE, ARGUE THAT CONGRESS HAS NOT AWARDED THE COMMISSION ANY
POWERS OVER CONSERVATION; RATHER, THIS AUTHORITY HAS BEEN RESERVED TO
THE STATES.  THIS CONTENTION IS BASED ON THE LEGISLATIVE HISTORY OF THE
NATURAL GAS ACT. 

WHEN CONGRESS INITIALLY ENACTED THE NATURAL GAS ACT IN 1938, ALL THE
INDICATIONS WERE THAT CONGRESS INTENDED THE STATES TO BE THE PRIMARY
ARBITERS OF CONSERVATION PROBLEMS.  THE 1938 ACT WAS BASED ON A 1936
REPORT RENDERED BY THE FEDERAL TRADE COMMISSION (FN6) AND THE SECTION
IN THAT REPORT DEVOTED TO CONSERVATION STRESSES THE POWERS OF STATE
BODIES TO ADOPT CORRECTIVE MEASURES.  THE FINAL RECOMMENDATION OF THE
FEDERAL TRADE COMMISSION IN REGARD TO CONSERVATION CONTEMPLATED PRIMARY
STATE AUTHORITY, WITH FEDERAL AGENCIES BEING RELEGATED TO A REPORTING
FUNCTION.  THIS RECOMMENDATION FORMED THE BASIS FOR SEC. 11 OF THE ACT
AS ULTIMATELY PASSED AND THAT SECTION REVEALS A SECONDARY ROLE FOR THE
COMMISSION IN THIS REGARD.  (FN7) 

HOWEVER, IN 1940, THE COMMISSION REPORTED ITS DISSATISFACTION WITH
THE LIMITED SCOPE OF SEC. 7.  THE 1938 VERSION OF SEC. 7 RESTRICTED THE
COMMISSION'S JURISDICTION TO CERTIFICATION OF TRANSPORTATION INTO AREAS
WHERE THE MARKET WAS ALREADY BEING SERVED BY ANOTHER NATURAL GAS
COMPANY; IF A PIPELINE WISHED TO EXTEND SERVICE INTO VIRGIN TERRITORY,
THE COMMISSION HAD NO POWER TO ACT.  THE COMMISSION FELT THAT THIS
LIMITATION BARRED IT FROM CONSIDERING "THE BROAD SOCIAL AND ECONOMIC
EFFECT OF THE USE OF VARIOUS FUELS" IN A SEC. 7 PROCEEDING, KANSAS PIPE
LINE & GAS CO., 2 F.P.C. 29, 57, AND, IN ITS 1940 ANNUAL REPORT, THE
COMMISSION URGED THAT THE RESTRICTION BE DELETED IN ORDER THAT
CONSERVATION CONSIDERATIONS MIGHT BE WEIGHED.  THE LANGUAGE USED BY THE
COMMISSION IS PARTICULARLY RELEVANT TO THIS CASE: 

"THE NATURAL GAS ACT AS PRESENTLY DRAFTED DOES NOT ENABLE THE
COMMISSION TO TREAT FULLY THE SERIOUS IMPLICATIONS OF SUCH A PROBLEM. 
THE QUESTION SHOULD BE RAISED AS TO WHETHER THE PROPOSED USE OF NATURAL
GAS WOULD NOT RESULT IN DISPLACING A LESS VALUABLE FUEL AND CREATE
HARDSHIPS IN THE INDUSTRY ALREADY SUPPLYING THE MARKET, WHILE AT THE
SAME TIME RAPIDLY DEPLETING THE COUNTRY'S NATURAL-GAS RESERVES. 
ALTHOUGH, FOR A PERIOD OF PERHAPS 20 YEARS, THE NATURAL GAS COULD BE SO
PRICED AS TO APPEAR TO OFFER AN APPARENT SAVING IN FUEL COSTS, THIS
WOULD MEAN SIMPLY THAT SOCIAL COSTS WHICH MUST EVENTUALLY BE PAID HAD
BEEN IGNORED. 

"CAREFUL STUDY OF THE ENTIRE PROBLEM MAY LEAD TO THE CONCLUSION THAT
USE OF NATURAL GAS SHOULD BE RESTRICTED BY FUNCTIONS RATHER THAN BY
AREAS.  THUS, IT IS ESPECIALLY ADAPTED TO SPACE AND WATER HEATING IN
URBAN HOMES AND OTHER BUILDINGS AND TO THE VARIOUS INDUSTRIAL HEAT
PROCESSES WHICH REQUIRE CONCENTRATION OF HEAT, FLEXIBILITY OF CONTROL,
AND UNIFORMITY OF RESULTS.  INDUSTRIAL USES TO WHICH IT APPEARS
PARTICULARLY ADAPTED INCLUDE THE TREATING AND ANNEALING OF METALS, THE
OPERATION OF KILNS IN THE CERAMIC, CEMENT, AND LIME INDUSTRIES, THE
MANUFACTURE OF GLASS IN ITS VARIOUS FORMS, AND USE AS A RAW MATERIAL IN
THE CHEMICAL INDUSTRY.  GENERAL USE OF NATURAL GAS UNDER BOILERS FOR
THE PRODUCTION OF STEAM IS, HOWEVER, UNDER MOST CIRCUMSTANCES OF VERY
QUESTIONABLE SOCIAL ECONOMY."  20 F.P.C. ANN. REP. 79 (1940).    THE
COMMISSION IMPLEMENTED ITS RECOMMENDATION BY SUBMITTING TO CONGRESS A
PROPOSED AMENDMENT TO SEC. 7 WITH THE RESTRICTIVE LANGUAGE ELIMINATED,
AND AN AMENDMENT SUBSTANTIALLY SIMILAR TO THE ONE DRAFTED BY THE
COMMISSION WAS ENACTED IN 1942.  (FN8) DURING THE COURSE OF THE
HEARINGS ON THE AMENDMENT, THE COMMISSION REITERATED THE POSITION IT
HAD TAKEN IN ITS 1940 REPORT, HEARINGS BEFORE THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON H.R. 5249, 77TH CONG., 1ST SESS. 82,
AND THE LANGUAGE USED BY THE COMMITTEES REPORTING THE BILL INDICATES
THAT THE AMENDMENT WAS FRAMED IN RESPONSE TO THE COMMISSION'S
COMPLAINT.  H.R. REP. NO. 1290, 77TH CONG., 1ST SESS. 3; S. REP. NO.
948, 77TH CONG., 2D SESS. 1-2. 

IT IS TRUE, OF COURSE, THAT THE COMMITTEE REPORTS DO NOT SET OUT THE
COMMISSION'S POSITION IN HAEC VERBA.  FOR EXAMPLE, THE PERTINENT
LANGUAGE OF THE HOUSE COMMITTEE REPORT STATES THAT: 

"THE BILL, AS AMENDED, ELIMINATES THE OBJECTIONS TO THE PRESENT
JURISDICTIONAL DISPUTES ARE ELIMINATED, AND THE DOOR IS OPENED TO THE
CONSIDERATION BY THE COMMISSION OF THE EFFECT OF CONSTRUCTION AND
EXTENSIONS UPON THE INTERESTS OF PRODUCERS OF COMPETING FUELS AND
COMPETITIVE TRANSPORTATION INTERESTS.  THIS RESULT IS ACCOMPLISHED,
MOREOVER, WITHOUT UNDUE DISTURBANCE OF EXISTING OPERATING ARRANGEMENTS
OF NATURAL-GAS COMPANIES."  (FN9)  H.R.  REP. NO. 1290, SUPRA. 

CONSEQUENTLY, RESPONDENTS ARGUE THAT CONGRESS ONLY AUTHORIZED THE
COMMISSION TO LOOK AT ONE SIDE OF THE COIN - THE HEALTH OF THE COAL
INDUSTRY - BECAUSE THAT IS THE ONLY POINT MENTIONED EXPLICITLY. 
HOWEVER, THIS CONTENTION DOES NOT TAKE ADEQUATE ACCOUNT OF THE POSITION
THE COMMISSION HAD CONSISTENTLY PRESSED UPON CONGRESS BOTH PRIOR TO AND
DURING THE HEARINGS ON THE AMENDMENT - THAT THE USE OF GAS FOR PURPOSES
ADEQUATELY SERVED BY OTHER FUELS WAS UNDESIRABLE NOT ONLY BECAUSE IT
INJURED THE COMPETING INDUSTRY BUT, WHAT IS MORE IMPORTANT, BECAUSE IT
WAS WASTEFUL TO USE A FUEL IN SHORT SUPPLY IN PLACE OF AN ABUNDANT
FUEL.  SEE 20 F.P.C. ANN. REP. 79 (1940).  THE HISTORY OF THE AMENDMENT
REVEALS NO VOICE RAISED IN OPPOSITION TO THE COMMISSION'S POSITION AND
THERE IS NO OTHER INDICATION THAT CONGRESS WAS UNWILLING TO GIVE THE
CHIEF PROPONENT OF THE AMENDMENT ANYTHING LESS THAN IT SOUGHT.  THUS,
IT WOULD BE CURIOUS WERE WE TO INFER SUCH AN INTENT FROM THE LANGUAGE
OF THE HOUSE COMMITTEE REPORT QUOTED ABOVE.  RATHER, WE THINK IT PLAIN
THE CONGRESS ACQUIESCED IN THE COMMISSION'S POSITION AND THE EXCERPTED
LANGUAGE SIGNIFIES ACQUIESCENCE.  IT SHOULD BE NOTED THAT THIS IS NOT
THE FIRST TIME THIS COURT HAS ADDRESSED ITSELF TO THE EFFECT OF THE
1942 AMENDMENT TO SEC. 7.  SEE FEDERAL POWER COMM'N V. HOPE NATURAL GAS
CO., 320 U.S. 591, 617, N.30, AND FEDERAL POWER COMM'N V. EAST OHIO GAS
CO., 338 U.S. 464, 468-469.  AND, WHILE IT MUST BE CONCEDED THAT THE
LANGUAGE PERTINENT HERE WAS NOT NECESSARY TO THE DECISION IN EITHER
HOPE OR EAST OHIO, THE CLEAR CONCLUSION OF THE COURT IN THOSE CASES IS
DIRECTLY OPPOSED TO RESPONDENTS' PRESENT ARGUMENT. 

RESPONDENTS, HOWEVER, VIGOROUSLY CONTEND THAT, SUBSEQUENT TO THE 1942
AMENDMENT, THE COMMISSION ITSELF HAS MADE STATEMENTS ON OCCASION WHICH
ARE INCONSISTENT WITH THE COMMISSION'S POSITION IN THIS CASE.  IN
PARTICULAR, RESPONDENTS POINT TO AN EXCERPT FROM THE COMMISSION'S 1944
REPORT TO CONGRESS, ENTITLED THE FIRST FIVE YEARS UNDER THE NATURAL GAS
ACT, WHERE THE COMMISSION STATED: 

"IN ITS HEARINGS ON CERTIFICATE CASES, UNDER SECTION 7(C) OF THE ACT,
AS AMENDED, THE COMMISSION HAS FREELY PERMITTED THE INTERVENTION OF
REPRESENTATIVES OF COAL, RAILROAD, LABOR, AND OTHER INTERESTS CONCERNED
WITH THE PRODUCTION OR TRANSPORTATION OF COMPETING FUELS.  THESE
INTERESTS HAVE PRESENTED EXTENSIVE EVIDENCE ON THE ECONOMIC,
SOCIOLOGICAL, AND TECHNOLOGICAL ASPECTS OF FUEL COMPETITION, AND THEIR
REPRESENTATIVES HAVE STRONGLY URGED THE COMMISSION EITHER TO DENY
CERTIFICATES ON THE GENERAL GROUNDS OF CONSERVATION OR TO ATTACH
RESTRICTIONS WHICH WOULD SEVERELY LIMIT THE USES FOR WHICH NATURAL GAS
MIGHT BE SOLD. 

"IT HAS BEEN THE UNANIMOUS VIEW OF THE COMMISSION THAT, INASMUCH AS
THE CONGRESS HAD NOT GIVEN IT COMPREHENSIVE POWERS TO DEAL WITH THE END
USES FOR WHICH NATURAL GAS IS CONSUMED, AND HAD GRANTED THE COMMISSION
NO AUTHORITY TO REGULATE RATES FOR THE DIRECT SALES OF NATURAL GAS TO
INDUSTRY, IT WAS THE DUTY OF THE COMMISSION NOT TO SEEK TO EXERCISE
SUCH AUTHORITY UNTIL THE CONGRESS AMENDED THE NATURAL GAS ACT TO CONFER
ON THE COMMISSION SUCH SPECIFIC POWERS AS CONGRESS DESIRED IT TO
EXERCISE."  F.P.C., THE FIRST FIVE YEARS UNDER THE NATURAL GAS ACT 15. 

THIS STATEMENT WAS RELIED ON HEAVILY BY THE COURT OF APPEALS AND IT
WOULD BE IDLE TO CONTEND THAT THE REPORT IS IRRELEVANT TO THE PRESENT
INQUIRY.  HOWEVER, IT IS NECESSARY TO NOTE THE PRECISE LIMIT OF THE
COMMISSION'S ADMISSIONS.  THE COMMISSION SAID THAT IT HAD NOT BEEN
GIVEN "COMPREHENSIVE" AUTHORITY TO DEAL WITH "THE END USES FOR WHICH
NATURAL GAS IS CONSUMED" AND THAT IT WOULD NOT DENY CERTIFICATION ON
THAT GROUND ALONE.  (FN10)  THE COMMISSION DID NOT SAY THAT IT HAD NO
AUTHORITY OVER THE USE TO WHICH CERTIFICATED GAS MIGHT BE PUT OR DID IT
SAY THAT END USE WAS A FACTOR BEYOND ITS POWER OF NOTICE.  IN VIEW OF
CONTEMPORANEOUS STATEMENTS BY THE COMMISSION WHICH WOULD BE
INCONSISTENT WITH THE READING RESPONDENTS PRESS UPON US, (FN11) WE
THINK THAT THE 1944 REPORT SHOULD BE CONSTRUED AS ADMITTING ONLY A LACK
OF COMPREHENSIVE POWER TO FORMULATE A FLAT RULE AGAINST DIRECT SALES
FOR USE UNDER INDUSTRIAL BOILERS. 

IN THIS CONNECTION, IT MUST BE REALIZED THAT THE COMMISSION'S POWERS
UNDER SEC. 7 ARE, BY DEFINITION, LIMITED.  SEE KOPLIN, CONSERVATION AND
REGULATION:  THE NATURAL GAS ALLOCATION POLICY OF THE FEDERAL POWER
COMMISSION, 64 YALE L.J. 840, 862.  THE COMMISSION CANNOT ORDER A
NATURAL GAS COMPANY TO SELL GAS TO USERS THAT IT FAVORS; (FN12) IT CAN
ONLY EXERCISE A VETO POWER OVER PROPOSED TRANSPORTATION AND IT CAN ONLY
DO THIS WHEN A BALANCE OF ALL THE CIRCUMSTANCES WEIGHS AGAINST
CERTIFICATION.  MOREOVER, THE COMMISSION HAS NO AUTHORITY OVER
INTRASTATE SALES UNDER ANY SECTION OF THE ACT AND, SINCE A LARGE
PERCENTAGE OF THE GAS SOLD FOR SO-CALLED "INFERIOR" USES IS SOLD WITHIN
THE PRODUCING STATES, (FN13) THIS RESTRICTION FURTHER CURTAILS THE
COMMISSION'S POWER OVER CONSERVATION.  IN LIGHT OF THIS, THE
COMMISSION'S POSITION SINCE THE 1942 AMENDMENT IS BOTH CONSISTENT AND
RATIONAL.  ON THE ONE HAND, THE COMMISSION HAS STATED THAT IT DOES HAVE
POWER TO CONSIDER END USE IN A SEC. 7 PROCEEDING.  ON THE OTHER HAND,
THE COMMISSION HAS SOUGHT, BUT HAS NOT BEEN AWARDED, COMPREHENSIVE
AUTHORITY OVER ALL ASPECTS OF GAS CONSERVATION.  A MOST STRIKING
EXAMPLE OF THE COMMISSION'S THINKING IS REVEALED BY ITS REASONS FOR
OPPOSITION TO H.R. 982, A BILL PROPOSED IN 1949 WHICH WOULD HAVE
DECLARED THAT: 

"  ...  THE PUBLIC INTEREST REQUIRES THE ESTABLISHMENT OF, AND
ADHERENCE TO, A POLICY WITH RESPECT TO THE TRANSPORTATION OF NATURAL
GAS AND THE SALE THEREOF IN INTERSTATE COMMERCE, WHICH WILL: 

"(1)  PROMOTE AND SAFEGUARD, SO FAR AS POSSIBLE, THE NATIONAL
DEFENSE. 

"(2)  CONSERVE THE RESERVES OF NATURAL GAS FOR UTILIZATION WHICH
AFFORDS THE HIGHEST SOCIAL BENEFITS TO THE PUBLIC, CONSISTENT WITH
REASONABLE RATES AND ADEQUATE SERVICE."  (FN14) 

THE COMMISSION ARGUED AGAINST PASSAGE ON, AMONG OTHERS, THE FOLLOWING
GROUND: 

"THE 10-POINT POLICY WOULD: 

*         *         *         *         * 

"(2) CONSERVE THE RESERVES OF NATURAL GAS FOR UTILIZATION WHICH
AFFORDS THE HIGHEST SOCIAL BENEFITS TO THE PUBLIC, CONSISTENT WITH
REASONABLE RATES AND ADEQUATE SERVICE. 

"THIS, OF COURSE, PROPOSES A LIMITATION ON THE PURPOSES FOR WHICH GAS
MAY BE UTILIZED.  IN ORDER TO BE FULLY EFFECTIVE IT WOULD BE NECESSARY
TO EXTEND THE COMMISSION'S JURISDICTION TO INTRASTATE SALES BECAUSE THE
GREAT BULK OF GAS SOLD FOR SO-CALLED INFERIOR INDUSTRIAL USES IS EITHER
SOLD IN THE FIELD OR BY DISTRIBUTING COMPANIES OVER WHICH THE
COMMISSION DOES NOT HAVE JURISDICTION.  THE COMMISSION, HOWEVER, IS
AWARE OF THE PROBLEM AND IN CERTIFICATE CASES IT DOES GIVE
CONSIDERATION TO THE PROPOSED USES OF THE GAS IN QUESTION.  THE
COMMISSION BELIEVES THAT, UNDER THE PRESENT ACT, IT MAY GIVE PROPER
CONSIDERATION TO THIS MATTER IN CERTIFICATE PROCEEDINGS."  (FN15) 

IN LIGHT OF THIS LANGUAGE, IT IS CLEAR THAT THE COMMISSION FULLY
REALIZES THE DISTINCTION BETWEEN THE POWER IT ENJOYS UNDER SEC. 7 AND
COMPLETE ALLOCATION POWER.  (FN16)  AND WE FEEL THAT THIS DISTINCTION
ENTIRELY DISPOSES OF THOSE CONTENTIONS OF RESPONDENTS BASED ON THE
COMMISSION'S PURPORTED AMBIVALENT BEHAVIOR. 

THERE IS A BROADER PRINCIPLE HERE WHICH ALSO STANDS IN OPPOSITION TO
RESPONDENTS' CONTENTIONS.  WHEN CONGRESS ENACTED THE NATURAL GAS ACT,
IT WAS MOTIVATED BY A DESIRE "TO PROTECT CONSUMERS AGAINST EXPLOITATION
AT THE HANDS OF NATURAL GAS COMPANIES."  SUNRAY MID-CONTINENT OIL CO.
V. FEDERAL POWER COMM'N, 364 U.S. 137, 147.  TO THAT END, CONGRESS
"MEANT TO CREATE A COMPREHENSIVE AND EFFECTIVE REGULATORY SCHEME." 
PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMM'N, 332 U.S. 507,
520.  SEE PUBLIC UTILITIES COMM'N V. UNITED FUEL GAS CO., 317 U.S. 456,
467.  IT IS TRUE, OF COURSE, THAT CONGRESS DID NOT DESIRE COMPREHENSIVE
FEDERAL REGULATION; MUCH AUTHORITY WAS RESERVED FOR THE STATES.  BUT,
IT IS EQUALLY CLEAR THAT CONGRESS DID NOT DESIRE THAT AN IMPORTANT
ASPECT OF THIS FIELD BE LEFT UNREGULATED.  SEE PANHANDLE EASTERN PIPE
LINE CO. V. PUBLIC SERVICE COMM'N, SUPRA.  THEREFORE, WHEN A DISPUTE
ARISES OVER WHETHER A GIVEN TRANSACTION IS WITHIN THE SCOPE OF FEDERAL
OR STATE REGULATORY AUTHORITY, WE ARE NOT INCLINED TO APPROACH THE
PROBLEM NEGATIVELY, THUS RAISING THE POSSIBILITY THAT A "NO MAN'S LAND"
WILL BE CREATED.  COMPARE GUSS V. UTAH LABOR BOARD, 353 U.S. 1.  THIS
IS TO SAY, IN A BORDERLINE CASE WHERE CONGRESSIONAL AUTHORITY IS NOT
EXPLICIT WE MUST ASK WHETHER STATE AUTHORITY CAN PRACTICABLY REGULATE A
GIVEN AREA AND, IF WE FIND THAT IT CANNOT, THEN WE ARE IMPELLED TO
DECIDE THAT FEDERAL AUTHORITY GOVERNS. 

IN THIS CASE, THE DISPUTE IS OVER THE "ECONOMIC" WASTE OF GAS WHICH
HAS BEEN COMMITTED TO TRANSPORTATION IN INTERSTATE COMMERCE OUTSIDE THE
PRODUCING STATE.  THE COMMISSION HAS NOT ATTEMPTED TO EXERT ITS
INFLUENCE OVER SUCH "PHYSICALLY" WASTEFUL PRACTICES AS IMPROPER WELL
SPACING AND THE FLARING OF UNUSED GAS WHICH RESULT IN THE ENTIRE LOSS
OF GAS AND ARE PROPERLY OF CONCERN TO THE PRODUCING STATE; NOR HAS THE
COMMISSION ATTEMPTED TO REGULATE THE "ECONOMIC" ASPECTS OF GAS USED
WITHIN THE PRODUCING STATE.  RESPONDENTS CONTEND THAT, EVEN IN THIS
POSTURE, THE COMMISSION HAS USURPED THE FUNCTIONS OF STATE REGULATING
BODIES BUT WE CANNOT AGREE. 

IN THE 1936 FEDERAL TRADE COMMISSION REPORT, UPON WHICH RESPONDENTS
SO HEAVILY RELY, THERE WAS SOME MENTION OF CONTROL OF THE END USE OF
GAS AND, AS WE HAVE SAID, THIS REPORT WAS STRONGLY ORIENTED TOWARDS
STATE REGULATION.  HOWEVER, AS THE COURT OF APPEALS POINTED OUT, THE
PRIMARY EMPHASIS WAS ON PHYSICAL WASTE OF GAS WITHIN THE PRODUCING
STATE AND THE REFERENCE TO END USE PROBABLY CONTEMPLATED THE USE OF GAS
IN GASOLINE EXTRACTION AND THE MANUFACTURE OF CARBON BLACK.  271 F.2D,
AT 947.  THERE IS NO INDICATION THAT THE FEDERAL TRADE COMMISSION OR
CONGRESS WAS THINKING IN TERMS OF STATE-CONTROLLED "ECONOMIC"
CONSERVATION OF GAS COMMITTED TO INTERSTATE COMMERCE.  MOREOVER, IT IS
QUESTIONABLE WHETHER ANY STATE COULD BE EXPECTED TO TAKE THE INITIATIVE
IN ENFORCING THIS TYPE OF "ECONOMIC" CONSERVATION.  A PRODUCING STATE
MIGHT WISH TO PROLONG ITS GAS RESERVES FOR AS LONG AS POSSIBLE BUT
PRODUCING STATES HAVE NO CONTROL OVER THE USE TO WHICH GAS IS PUT IN
ANOTHER STATE.  SEE MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, 347
U.S. 157; PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553; OKLAHOMA V.
KANSAS NATURAL GAS CO., 221 U.S. 229.  CONSUMING STATES MAY CONTROL THE
END USE OF GAS, PANHANDLE EASTERN PIPE LINE CO. V. MICHIGAN PUBLIC
SERVICE COMM'N, 341 U.S. 329, BUT THE DEFICIENCIES OF THIS SYSTEM IN
THE PRESENT CONTEXT ARE APPARENT - UNLESS ALL STATES COOPERATE IN
ENFORCING A COMMON REGULATION, THE PRODUCER MAY PICK A STATE WHICH IS
SUFFICIENTLY ANXIOUS FOR THIS SCARCE RESOURCE THAT IT WILL TAKE GAS
IRRESPECTIVE OF THE USE.  (FN17)  THEREFORE, IT APPEARS THAT,
CONSISTENT WITH THE CONGRESSIONAL PURPOSE OF LEAVING NO "ATTRACTIVE
GAP" IN REGULATION, WE MUST CONCLUDE THAT THE "END-USE" FACTOR WAS
PROPERLY OF CONCERN TO THE COMMISSION. 

PRICE.  AS WE READ THE OPINION, THE COMMISSION'S SECOND OBJECTION TO
CERTIFICATION WAS BASED ON ITS FORECAST THAT THIS AND SIMILAR DIRECT
SALES OF GAS AT UNREGULATED PRICES HIGHER THAN THOSE ALLOWED IN SALES
FOR RESALE (FN18) WOULD ATTRACT GAS TO THE HIGH-BIDDING DIRECT
PURCHASERS AND THUS LEVER UPWARDS FIELD PRICES BOTH IN DIRECT SALES AND
SALES FOR RESALE. 

RESPONDENTS CLAIM THAT THIS "POLICY" CONSIDERATION MASKS THE
COMMISSION'S TRUE PURPOSE IN THIS PROCEEDING, WHICH, ACCORDING TO
RESPONDENTS, IS TO BAR DIRECT SALES ABSOLUTELY, THUS FORCING ALL GAS
TRANSACTIONS INTO REGULATED CHANNELS.  AND RESPONDENTS ARGUE THAT SUCH
AN ABSOLUTE BAR RUNS CONTRARY TO THE INTENT OF CONGRESS AS EXPRESSED IN
SEC. 1(B) OF THE NATURAL GAS ACT QUOTED SUPRA, THE SECTION WHICH LIMITS
THE FPC'S JURISDICTION TO SALES FOR RESALE IN INTERSTATE COMMERCE. 

WERE RESPONDENTS CORRECT IN THEIR INTERPRETATION OF THE COMMISSION'S
ACTION IN THIS CASE, WE WOULD BE FORCED TO AGREE THAT THE COMMISSION
HAD OVERSTEPPED ITS BOUNDS.  CERTAINLY SUCH ACTION WOULD BE CONTRARY TO
OUR PREVIOUS STATEMENTS THAT THE TERM "PUBLIC CONVENIENCE AND
NECESSITY" CONNOTES A FLEXIBLE BALANCING PROCESS, IN THE COURSE OF
WHICH ALL THE FACTORS ARE WEIGHED PRIOR TO FINAL DETERMINATION.  UNITED
STATES V. DETROIT & CLEVELAND NAVIGATION CO., SUPRA.  (FN19)  INDEED,
AS RESPONDENTS ARGUE, SUCH A FLAT RULE WOULD BE DOUBLY OBJECTIONABLE
HERE BECAUSE CONGRESS HAS NOT GIVEN THE COMMISSION JURISDICTION OVER
DIRECT SALES.  HOWEVER, WE CANNOT AGREE THAT THE COMMISSION PROPOUNDED
AN ABSOLUTE RULE IN THIS CASE.  EXAMINATION OF THE OPINION REVEALS
RECURRENT REFERENCE TO THE ABSENCE OF ANY ONE CONTROLLING FACTOR; AS
THE COMMISSION STATED, "COUNTERVAILING FACTORS SUFFICE TO TIP THE
BALANCE AGAINST THE GRANT OF THE AUTHORITY REQUESTED BY TRANSCO."  21
F.P.C., AT 141.  IT IS DIFFICULT TO FIND ANY INDICATION OF THE FLAT
RULE MENTIONED BY RESPONDENTS IN LANGUAGE SUCH AS THIS.  FURTHERMORE,
IF THERE WERE ANY LINGERING DOUBT ON THIS POINT, IT IS DISPELLED BY THE
FACT THAT THE COMMISSION HAS, ON MANY OCCASIONS, HELD THAT
TRANSPORTATION OF GAS SOLD DIRECTLY TO THE CONSUMER IS IN THE PUBLIC
INTEREST WHEN THE REASONS ADVANCED BY THE APPLICANT HAVE BEEN
SUFFICIENTLY STRONG.  SEE, E.G., HOUSTON TEXAS GAS & OIL CORP., 16
F.P.C. 118.  ON THIS POINT, THE COMMISSION'S ACTIONS SPEAK LOUDER THAN
RESPONDENTS' UNSUPPORTED ALLEGATIONS.  SEE NORTHERN NATURAL GAS CO., 15
F.P.C. 1634.  (FN20) 

RESPONDENTS ALSO ARGUE THAT THE COMMISSION IS OPPOSED TO THIS
TRANSACTION MERELY BECAUSE THE UNDERLYING SALE IS A DIRECT SALE NOT
SUBJECT TO THE COMMISSION'S PRIMARY JURISDICTION.  HOWEVER, A FAIR
READING OF THE COMMISSION'S OPINION AS A WHOLE REVEALS THAT THE
COMMISSION DID NOT EXALT FORM OVER SUBSTANCE IN AN ATTEMPT TO
AGGRANDIZE THE SCOPE OF ITS JURISDICTION; RATHER, WHENEVER THE
COMMISSION DISCUSSED THE NONJURISDICTIONAL NATURE OF THIS SALE, IT TIED
THIS DISCUSSION INTO AN ANALYSIS OF ONE OR THE OTHER OF THE SUBSTANTIVE
EVILS IT WAS SEEKING TO PREVENT - "INFERIOR" USE OF INCREASED PRICES TO
CONSUMERS GENERALLY.  (FN21) 

THE QUESTION FOR CONSIDERATION IN THIS SECTION, THEREFORE, IS WHETHER
IN A SEC. 7 PROCEEDING THE COMMISSION MAY CONSIDER SALES PRICE OR, MORE
ACCURATELY, THE EFFECT THE INFLATED PRICE CHARGED IN ONE SALE WILL HAVE
ON FUTURE FIELD PRICES.  WE HAVE RECENTLY ANSWERED THIS QUESTION IN
FAVOR OF THE COMMISSION'S JURISDICTION.  SEE ATLANTIC REFINING CO. V.
PUBLIC SERVICE COMM'N, SUPRA, AT 391, WHERE WE STATED THAT THE
COMMISSION COULD DECIDE WHETHER: 

"THE PROPOSED PRICE IS NOT IN KEEPING WITH THE PUBLIC INTEREST
BECAUSE IT IS OUT OF LINE OR BECAUSE ITS APPROVAL MIGHT RESULT IN A
TRIGGERING OF GENERAL PRICE RISES  ...  ." 

HOWEVER, RESPONDENTS POINT OUT THAT THE UNDERLYING SALE IN THAT CASE
WAS A SALE FOR RESALE AND THUS INDEPENDENTLY SUBJECT TO THE
COMMISSION'S JURISDICTION.  WHERE SUCH INDEPENDENT JURISDICTION DOES
NOT EXIST BECAUSE OF THE BAR IN SEC. 1(B), RESPONDENTS CLAIM THAT THE
COMMISSION'S POWER OF NOTICE IS CURTAILED. 

THIS COURT HAS NEVER BEEN FACED WITH PRECISELY THIS PROBLEM, BUT ON
SEVERAL OCCASIONS WE HAVE BEEN CALLED UPON TO CONSIDER ARGUMENTS VERY
SIMILAR TO THE ONE ADVANCED HERE.  FOR EXAMPLE, IN COLORADO INTERSTATE
GAS CO. V. FEDERAL POWER COMM'N, 324 U.S. 581, IT WAS HELD THAT, IN
FIXING A RATE BASE FOR THE MEASUREMENT OF INTERSTATE WHOLESALE RATES,
THE COMMISSION MIGHT TAKE INTO ACCOUNT THE VALUE OF THE PIPELINE
COMPANY'S PRODUCTION AND GATHERING FACILITIES, EVEN THOUGH THE
COMMISSION HAD NO DIRECT JURISDICTION OVER THESE FACILITIES BECAUSE OF
THE BAR IN SEC. 1(B).  THE CONTENTION WHICH WAS REJECTED IN COLORADO
INTERSTATE HAS A FAMILIAR RING IN THE PRESENT CONTEXT:  ACCORDING TO
THE UNSUCCESSFUL LITIGANT, WHEN THE FPC INCLUDES PRODUCTION AND
GATHERING FACILITIES IN A RATE BASE, "IT REGULATES THE PRODUCTION AND
GATHERING OF NATURAL GAS CONTRARY TO THE PROVISIONS OF SEC. 1(B) OF THE
ACT."  ID., AT 600.  SIMILARLY, IN PANHANDLE EASTERN PIPE LINE CO. V.
FEDERAL POWER COMM'N, 324 U.S. 635, 646, IT WAS SAID IN DICTUM THAT: 

"THE COMMISSION, WHILE IT LACKS AUTHORITY TO FIX RATES FOR DIRECT
INDUSTRIAL SALES, MAY TAKE THOSE RATES INTO CONSIDERATION WHEN IT FIXES
THE RATES FOR INTERSTATE WHOLESALE SALES WHICH ARE SUBJECT TO ITS
JURISDICTION." 

THESE CASES, WHILE NOT IN THEMSELVES CONTROLLING, INDICATE AT LEAST
THAT RESPONDENTS' ARGUMENT IS OVERLY BROAD.  HOWEVER, TO DECIDE A
PARTICULAR CASE WE MUST RETURN TO THE CONSIDERATION DISCUSSED IN THE
PREVIOUS SECTION - THE ACT CONTEMPLATES COMPREHENSIVE REGULATION IN THE
PUBLIC INTEREST AND THE CRITICAL INQUIRY IS WHETHER CONGRESS INTENDED
STATE OR FEDERAL AUTHORITY TO GOVERN. 

IN THE PRESENT CASE, THE COMMISSION WAS CONCERNED WITH THE EFFECTS
THIS CERTIFICATION MIGHT HAVE IN THE FUTURE ON FIELD PRICES GENERALLY. 
THE COMMISSION WAS ATTEMPTING TO CONSIDER NOT ONLY THE INTERESTS OF
CONSUMERS IN NEW YORK BUT THOSE IN ALL STATES.  TO BE COMPARED WITH THE
PROBLEM BEFORE THE COMMISSION ARE THE DETERMINATIONS THAT A CONSUMING
STATE COMMISSION MAY PROPERLY MAKE IN EXERCISING AUTHORITY OVER A
DIRECT SALE.  CERTAINLY, THE CONSUMING STATE CAN REGULATE RETAIL RATES
AT WHICH GAS CAN BE SOLD WITHIN THE STATE.  E.G., PANHANDLE EASTERN
PIPE LINE CO. V. PUBLIC SERVICE COMM'N, 332 U.S. 507.  THIS POWER WAS
RECOGNIZED AT THE TIME THE ACT WAS PASSED, SEE POWELL, NOTE, PHYSICS
AND LAW - COMMERCE IN GAS AND ELECTRICITY, 58 HARV. L. REV. 1072, AND
IT IS CLEAR THAT CONGRESS EXCEPTED FEDERAL REGULATION OF DIRECT SALES
PRECISELY FOR THIS REASON.  SEE H.R. REP. NO. 709, 75TH CONG., 1ST
SESS. 1-2.  BUT, IN THIS CASE THE COMMISSION HAS NOT OBJECTED TO THE
RETAIL RATE AND WE NEED NOT DECIDE WHETHER THERE ARE LIMITS ON THE
COMMISSION'S POWER IN THIS HYPOTHETICAL SITUATION.  THE VERY NATURE OF
THE PRESENT PROBLEM, ENTAILING AS IT DOES CONSIDERATIONS THAT OVERSTEP
THE BOUNDS OF ANY ONE STATE, ILLUSTRATES THE IMPROBABILITY THAT STATE
COMMISSIONS COULD OR WOULD ATTEMPT TO DEAL WITH IT; IT SEEMS CLEAR THAT
CONSIDERATIONS OF THIS SORT ARE UNIQUELY FITTED FOR FEDERAL SCRUTINY. 
PARTICULARLY RELEVANT IN THIS CONNECTION IS THIS COURT'S DECISION IN
PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMM'N, 332 U.S.
507.  IN THAT CASE, IT WAS HELD THAT A STATE COMMISSION MAY REGULATE
RETAIL SALES, EVEN THOUGH THE GAS WAS BROUGHT FROM OUT-OF-STATE
SOURCES.  THE PIPELINE COMPANY ARGUED THAT CONFLICTING REGULATIONS
ENFORCED BY DIFFERENT STATE BODIES, PARTICULARLY REGULATIONS CONCERNED
WITH INTERRUPTION OF SERVICE, MIGHT PLACE IT IN AN UNTENABLE POSITION. 
THE COURT ANSWERED THIS ARGUMENT BY STATING THAT: 

"THERE IS NO EVIDENCE THUS FAR OF SUBSTANTIAL CONFLICT IN EITHER
RESPECT AND WE DO NOT SEE THAT THE PROBABILITY OF SERIOUS CONFLICT IS
SO STRONG AS TO OUTWEIGH THE VITAL LOCAL INTERESTS TO WHICH WE HAVE
REFERRED REQUIRING REGULATION BY THE STATES.  MOREOVER, IF SUCH
CONFLICT SHOULD DEVELOP, THE MATTER OF INTERRUPTING SERVICE IS ONE
LARGELY RELATED, AS APPELLEES SAY, TO TRANSPORTATION AND THUS WITHIN
THE JURISDICTION OF THE FEDERAL POWER COMMISSION TO CONTROL, IN
ACCOMMODATION OF ANY CONFLICTING INTERESTS AMONG VARIOUS STATES."  ID.,
AT 523. 

THE POINT IS, AS WE HAVE STATED, THAT CONGRESS DID NOT DESIRE AN
"ATTRACTIVE GAP" IN ITS REGULATORY SCHEME; RATHER, CONGRESS INTENDED TO
IMPOSE A COMPREHENSIVE REGULATORY SYSTEM ON THE TRANSPORTATION,
PRODUCTION, AND SALE OF THIS VALUABLE NATURAL RESOURCE.  THEREFORE,
WHEN WE ARE PRESENTED WITH AN ATTEMPT BY THE FEDERAL AUTHORITY TO
CONTROL A PROBLEM THAT IS NOT, BY ITS VERY NATURE, ONE WITH WHICH STATE
REGULATORY COMMISSIONS CAN BE EXPECTED TO DEAL, THE CONCLUSION IS
IRRESISTIBLE THAT CONGRESS DESIRED REGULATION BY FEDERAL AUTHORITY
RATHER THAN NONREGULATION.  SEE PANHANDLE EASTERN PIPE LINE CO. V.
FEDERAL POWER COMM'N, 232 F.2D 467. 

RESPONDENTS' FINAL ARGUMENT ON THIS POINT IS THAT THE COMMISSION
ABUSED ITS DISCRETION IN DENYING CERTIFICATION BECAUSE IT TOOK
COGNIZANCE OF FACTS DEHORS THE RECORD AND BECAUSE IT DID NOT PAY
SUFFICIENT ATTENTION TO THE RECORDED TESTIMONY OF RESPONDENTS' EXPERT
CONCERNING AIR POLLUTION.  THE FIRST OBJECTION - THAT THE COMMISSION
ERRED IN GOING OUTSIDE THE RECORD - WAS REJECTED BY THE COURT OF
APPEALS AND WE CONCUR IN THAT CONCLUSION.  ACCORDING TO THE STATUTE,
THE COMMISSION IS REQUIRED TO DETERMINE WHETHER CERTIFICATION IS IN THE
"PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY."  OBEDIENT TO THIS
COMMAND, THE COMMISSION DID FORECAST THE FUTURE AND CONCLUDED THAT
WIDESPREAD DIRECT SALES AT HIGH PRICES WOULD PROBABLY RESULT IN PRICE
INCREASES.  RESPONDENTS APPEAR TO BE CLAIMING THAT THE COMMISSION
SHOULD HAVE ADDUCED TESTIMONIAL AND DOCUMENTARY EVIDENCE TO THE EFFECT
THAT THIS FORECAST WOULD COME TRUE.  HOWEVER, WE DO NOT THINK THAT THE
COMMISSION IS SO LIMITED IN ITS FORMULATION OF POLICY CONSIDERATIONS. 
RATHER, WE THINK THAT A FORECAST OF THE DIRECTION IN WHICH FUTURE
PUBLIC INTEREST LIES NECESSARILY INVOLVES DEDUCTIONS BASED ON THE
EXPERT KNOWLEDGE OF THE AGENCY.  SEE ATLANTIC REFINING CO. V. PUBLIC
SERVICE COMM'N, SUPRA, AT 391.  (FN22)  IT SHOULD ALSO BE NOTED THAT
THERE HAS BEEN A CONSIDERABLE SHOWING MADE BY THE PETITIONERS AND STATE
REGULATORY COMMISSIONS APPEARING AS AMICI CURIAE TO THE EFFECT THAT THE
COMMISSION'S FORECAST IS WELL FOUNDED.  (FN23)  MOREOVER, AS A MATTER
OF COMMON SENSE, IT WOULD SEEM DIFFICULT TO DENY THAT THE CHANNELING OF
VAST QUANTITIES OF A WASTING RESOURCE INTO UNREGULATED TRANSACTIONS AT
A HIGH PRICE WILL RESULT IN SCARCITY TO OTHER CONSUMERS AND A GENERAL
PRICE INCREASE.  CF. PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE
COMM'N, 332 U.S. 507, 521, N.19. 

RESPONDENTS' LAST POINT IS THAT INSUFFICIENT WEIGHT WAS AFFORDED THE
EVIDENCE CONCERNING AIR POLLUTION.  CONCEDEDLY, THE TESTIMONY OF CON. 
ED.'S EXPERT WITNESS, THE COMMISSIONER OF THE DEPARTMENT OF AIR
POLLUTION CONTROL IN NEW YORK CITY, WAS ENTITLED TO GREAT WEIGHT. 
HOWEVER, AS THE NEW YORK COMMISSIONER HIMSELF ADMITTED, IT WAS NOT
POSSIBLE FOR HIM TO ESTABLISH A DEFINITE RELATION BETWEEN INJURY TO
HEALTH AND THE STACK EMISSIONS AT THE WATERSIDE STATION.  (FN24)  MORE
IMPORTANTLY, IT WAS NOT SHOWN THAT OTHER METHODS - PARTICULARLY THE USE
OF GAS PRESENTLY AVAILABLE TO CON.  ED. UNDER OTHER FORMS OF SERVICE
(FN25) - COULD NOT BE USED TO SOLVE THE PROBLEM.  CONSEQUENTLY, WE
CANNOT SAY THAT THE COMMISSION ACTED IRRATIONALLY IN CONCLUDING THAT
CON.  ED.'S PROOF WAS INSUFFICIENT.  SEE CHARLESTON & WESTERN CAROLINA
R. CO. V. FEDERAL POWER COMM'N, 98 U.S. APP. D.C. 241, 234 F.2D 62. 

NEITHER THIS COURT NOR THE COMMISSION HOLDS IN THIS CASE THAT SALES
TO PIPELINES ARE GENERALLY MORE IN ACCORD WITH THE PUBLIC INTEREST THAN
OTHER SALES; NOR DO WE AUTHORIZE THE ELIMINATION OF DIRECT SALES OF GAS
UNDER APPROPRIATE CIRCUMSTANCES NOR THE DENIAL OF A CERTIFICATE TO ANY
ARBITRARILY CHOSEN GROUP OF PURCHASERS.  ALL WE HOLD IS THAT THE
COMMISSION DID NOT ABUSE ITS DISCRETION IN CONSIDERING, AMONG OTHER
FACTORS, THOSE OF END USE, PRE-EMPTION OF PIPELINE FACILITIES AND PRICE
IN DECIDING THAT THE PUBLIC CONVENIENCE AND NECESSITY DID NOT REQUIRE
THE ISSUANCE OF THE CERTIFICATE REQUESTED.  THE JUDGMENT OF THE COURT
OF APPEALS MUST BE REVERSED. 

FN1  SECTION 7(E), 15 U.S.C. SEC. 717FE), PROVIDES: 

"(E)  EXCEPT IN THE CASES GOVERNED BY THE PROVISOS CONTAINED IN
SUBSECTION (C) OF THIS SECTION, A CERTIFICATE SHALL BE ISSUED TO ANY
QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE WHOLE OR ANY PART OF THE
OPERATION, SALE, SERVICE, CONSTRUCTION, EXTENSION, OR ACQUISITION
COVERED BY THE APPLICATION, IF IT IS FOUND THAT THE APPLICANT IS ABLE
AND WILLING PROPERLY TO DO THE ACTS AND TO PERFORM THE SERVICE PROPOSED
AND TO CONFORM TO THE PROVISIONS OF THE ACT AND THE REQUIREMENTS,
RULES, AND REGULATIONS OF THE COMMISSION THEREUNDER, AND THAT THE
PROPOSED SERVICE, SALE, OPERATION, CONSTRUCTION, EXTENSION, OR
ACQUISITION, TO THE EXTENT AUTHORIZED BY THE CERTIFICATE, IS OR WILL BE
REQUIRED BY THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY;
OTHERWISE SUCH APPLICATION SHALL BE DENIED.  THE COMMISSION SHALL HAVE
THE POWER TO ATTACH TO THE ISSUANCE OF THE CERTIFICATE AND TO THE
EXERCISE OF THE RIGHTS GRANTED THEREUNDER SUCH REASONABLE TERMS AND
CONDITIONS AS THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE." 

FN2  IN ADDITION TO THE PETITIONING FEDERAL POWER COMMISSION AND
RESPONDENTS TRANSCO AND CON.  ED., SEVERAL OTHER PARTIES HAVE BEEN
INVOLVED IN THIS LITIGATION.  THE CITY OF NEW YORK IS A NAMED
RESPONDENT AND THE PETITIONERS IN NO. 46 INCLUDE THE NATIONAL COAL
ASSOCIATION, THE UNITED MINE WORKERS OF AMERICA, AND THE FUELS RESEARCH
COUNCIL, INC. SEVERAL PARTIES HAVE FILED BRIEFS AS AMICI CURIAE IN THIS
COURT, INCLUDING THE REGULATORY COMMISSIONS OF CALIFORNIA, MICHIGAN,
AND WISCONSIN.  THESE STATE COMMISSIONS HAVE ARGUED IN SUPPORT OF THE
FEDERAL POWER COMMISSION'S POSITION. 

FN3  SEE F.P.C., NATURAL GAS INVESTIGATION (1948), DOCKET G-580, OLDS
DRAPER REPORT, PP. 6-14. 

FN4  THE CASES IN WHICH THE COMMISSION HAS CONSIDERED THE END-USE
FACTOR ARE COLLECTED IN THE COURT OF APPEALS' OPINION.  271 F.2D, AT
949, N.27. 

FN5  THE COMMISSION'S LONG-STANDING CONCLUSION THAT THE USE OF GAS
UNDER INDUSTRIAL BOILERS IS AN INFERIOR USE IS AMPLY SUPPORTED BY
AUTHORITY.  SEE., E.G., BLACHLY AND OATMAN, NATURAL GAS AND THE PUBLIC
INTEREST, 142. 

FN6  FEDERAL TRADE COMMISSION, FINAL REPORT TO THE SENATE OF THE
UNITED STATES, S. DOC.  NO. 92, 70TH CONG., 1ST SESS., PART 84-A.
THIS REPORT. 

FN7  SECTION 11 OF THE ACT, 15 U.S.C. SEC. 717J, PROVIDES: 

"(A)  IN CASE TWO OR MORE STATES PROPOSE TO THE CONGRESS COMPACTS
DEALING WITH THE CONSERVATION, PRODUCTION, TRANSPORTATION, OR
DISTRIBUTION OF NATURAL GAS IT SHALL BE THE DUTY OF THE COMMISSION TO
ASSEMBLE PERTINENT INFORMATION RELATIVE TO THE MATTERS COVERED IN ANY
SUCH PROPOSED COMPACT, TO MAKE PUBLIC AND TO REPORT TO THE CONGRESS
INFORMATION SO OBTAINED, TOGETHER WITH SUCH RECOMMENDATIONS FOR FURTHER
LEGISLATION AS MAY APPEAR TO BE APPROPRIATE OR NECESSARY TO CARRY OUT
THE PURPOSES OF SUCH PROPOSED COMPACT AND TO AID IN THE CONSERVATION OF
NATURAL-GAS RESOURCES WITHIN THE UNITED STATES AND IN THE ORDERLY,
EQUITABLE, AND ECONOMIC PRODUCTION, TRANSPORTATION, AND DISTRIBUTION OF
NATURAL GAS.    "(B)  IT SHALL BE THE DUTY OF THE COMMISSION TO
ASSEMBLE AND KEEP CURRENT PERTINENT INFORMATION RELATIVE TO THE EFFECT
AND OPERATION OF ANY COMPACT BETWEEN TWO OR MORE STATES HERETOFORE OR
HEREAFTER APPROVED BY THE CONGRESS, TO MAKE SUCH INFORMATION PUBLIC,
AND TO REPORT TO THE CONGRESS, FROM TIME TO TIME, THE INFORMATION SO
OBTAINED, TOGETHER WITH SUCH RECOMMENDATIONS AS MAY APPEAR TO BE
APPROPRIATE OR NECESSARY TO PROMOTE THE PURPOSES OF SUCH COMPACT. 

"(C)  IN CARRYING OUT THE PURPOSES OF THIS CHAPTER, THE COMMISSION
SHALL, SO FAR AS PRACTICABLE, AVAIL ITSELF OF THE SERVICES, RECORDS,
REPORTS, AND INFORMATION OF THE EXECUTIVE DEPARTMENTS AND OTHER
AGENCIES OF THE GOVERNMENT, AND THE PRESIDENT MAY, FROM TIME TO TIME,
DIRECT THAT SUCH SERVICES AND FACILITIES BE MADE AVAILABLE TO THE
COMMISSION." 

OTHER INDICATIONS THAT CONGRESS INITIALLY CONTEMPLATED STATE CONTROL
OVER CONSERVATION ARE FOUND IN THE REMARKS OF CONGRESSMAN MAPES, A
MEMBER OF THE COMMITTEE REPORTING THE BILL THAT BECAME THE NATURAL GAS
ACT, 81 CONG. REC. 6726, AND COL. CHANTLAND, COUNSEL REPRESENTING THE
FEDERAL TRADE COMMISSION BEFORE CONGRESS, HEARINGS BEFORE A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
ON H.R. 11662, 74TH CONG., 2D SESS. 66-67. 

FN8  SECTION 7(C) OF THE ACT, AS ORIGINALLY ENACTED IN 1938,
PROVIDED, IN PART, THAT: 

"(C)  NO NATURAL-GAS COMPANY SHALL UNDERTAKE THE CONSTRUCTION OR
EXTENSION OF ANY FACILITIES FOR THE TRANSPORTATION OF NATURAL GAS TO A
MARKET IN WHICH NATURAL GAS IS ALREADY BEING SERVED BY ANOTHER NATURAL
GAS COMPANY, OR ACQUIRE OR OPERATE ANY SUCH FACILITIES OR EXTENSIONS
THEREOF, OR ENGAGE IN TRANSPORTATION BY MEANS OF ANY NEW OR ADDITIONAL
FACILITIES, OR SELL NATURAL GAS IN ANY SUCH MARKET, UNLESS AND UNTIL
THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE COMMISSION A CERTIFICATE
THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY REQUIRE OR
WILL REQUIRE SUCH NEW CONSTRUCTION OR OPERATION OF ANY SUCH FACILITIES
OR EXTENSIONS THEREOF  ...  ."  52 STAT. 825. 

THE COMMISSION'S PROPOSED AMENDMENT WAS FIRST INTRODUCED AS H.R.
4819, 87 CONG. REC.  4301, AND LATER RESUBMITTED AS H.R. 5249.  THE
BILL, AS PROPOSED BY THE COMMISSION, INSOFAR AS HERE PERTINENT READ: 

"NO NATURAL-GAS COMPANY OR PERSON WHICH WILL BE A NATURAL-GAS COMPANY
UPON COMPLETION OF ANY PROPOSED CONSTRUCTION OR EXTENSION SHALL ENGAGE
IN THE TRANSPORTATION OR SALE OF NATURAL GAS, OR UNDERTAKE THE
CONSTRUCTION OR EXTENSION OF ANY FACILITIES THEREFOR, OR ACQUIRE OR
OPERATE ANY SUCH FACILITIES OR EXTENSIONS THEREOF, UNLESS THERE IS IN
FORCE WITH RESPECT TO SUCH NATURAL-GAS COMPANY A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY ISSUED BY THE COMMISSION AUTHORIZING SUCH
ACTS OR OPERATIONS  ...  ."  HEARINGS BEFORE THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON H.R. 5249, 77TH CONG., 1ST SESS. 1. 

THIS SECTION, AS FINALLY ENACTED, READS: 

"(C)  NO NATURAL-GAS COMPANY OR PERSON WHICH WILL BE A NATURAL-GAS
COMPANY UPON COMPLETION OF ANY PROPOSED CONSTRUCTION OR EXTENSION SHALL
ENGAGE IN THE TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO THE
JURISDICTION OF THE COMMISSION, OR UNDERTAKE THE CONSTRUCTION OR
EXTENSION OF ANY FACILITIES THEREFOR, OR ACQUIRE OR OPERATE ANY SUCH
FACILITIES OR EXTENSIONS THEREOF, UNLESS THERE IS IN FORCE WITH RESPECT
TO SUCH NATURAL-GAS COMPANY A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY ISSUED BY THE COMMISSION AUTHORIZING SUCH ACTS OR OPERATIONS
...  ." 

FN9  S. REP. NO. 948 STATES THAT: 

"THE BILL (H.R. 5249) WOULD REQUIRE A CERTIFICATE FROM THE FEDERAL
POWER COMMISSION TO ENGAGE IN THE TRANSPORTATION OR SALE OF NATURAL GAS
OR THE CONSTRUCTION, EXTENSION, OR OPERATION OF NATURAL-GAS FACILITIES
SUBJECT TO THE JURISDICTION OF THE FEDERAL POWER COMMISSION.  AT THE
PRESENT TIME THE NATURAL GAS ACT REQUIRES A CERTIFICATE OF PUBLIC
CONVENIENCE, ONLY FOR THE EXTENSION OF CONSTRUCTION OR EXTENSION OF
SERVICE 'TO A MARKET IN WHICH NATURAL GAS IS ALREADY BEING SERVED BY
ANOTHER NATURAL-GAS COMPANY.'  THE TERMS OF THIS LIMITATION ARE NOT
DEFINED BY THE ACT.  LONG PRELIMINARY INVESTIGATIONS ARE REQUIRED TO
DETERMINE WHETHER OR NOT THE FEDERAL POWER COMMISSION HAS JURISDICTION
TO GRANT OR TO DENY A CERTIFICATE.  TOO, THE COMMISSION HAS HELD IN THE
CASE OF AN EXTENSION BY A GAS COMPANY TO A MARKET ALREADY SERVED BY A
COMPETING COMPANY THAT THE VIEWS OR INTERESTS OF COMPETING FUEL
COMPANIES CANNOT BE CONSIDERED. 

"PROVISIONS OF THE NATURAL GAS ACT EMPOWER THE COMMISSION TO PREVENT
UNECONOMIC EXTENSIONS AND WASTE, BUT IT CAN SO REGULATE SUCH POWERS
ONLY WHEN THE EXTENSION IS TO 'A MARKET IN WHICH NATURAL GAS IS ALREADY
BEING SERVED BY ANOTHER NATURAL-GAS COMPANY.'  THUS THE POSSIBILITIES
OF WASTE, UNECONOMIC AND UNCONTROLLED EXTENSIONS ARE MULTIPLE AND
TREMENDOUS.  THE PRESENT BILL WOULD CORRECT THIS GLARING INADEQUACY OF
THE ACT.  IT WOULD ALSO AUTHORIZE THE COMMISSION TO EXAMINE COSTS,
FINANCES, NECESSITY, FEASIBILITY, AND ADEQUACY OF PROPOSED SERVICES. 
THE CHARACTERISTICS OF THEIR RATE STRUCTURE COULD BE STUDIED. 
OBVIOUSLY THESE ARE POWERS THAT THE FEDERAL POWER COMMISSION SHOULD
HAVE AND SHOULD EXERCISE IN THE PUBLIC INTEREST." 

FN10  THE PASSAGE EXCERPTED AND RELIED UPON BY THE COURT OF APPEALS
SHOULD BE READ WITH REFERENCE TO THE FOOTNOTE APPENDED THERETO.  IN
THIS FOOTNOTE, THE COMMISSION STATED: 

"IN ITS OPINION NO. 93-A, WHICH ACCOMPANIED ITS ORDER OF SEPTEMBER
24, 1943, ISSUING A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO
TENNESSEE GAS & TRANSMISSION CO. FOR THE CONSTRUCTION AND OPERATION OF
A NATURAL-GAS PIPE LINE FROM TEXAS TO WEST VIRGINIA, THE COMMISSION
STATED: 

"'INTERVENERS REPRESENTING COAL OPERATORS, LABOR UNIONS, AND
RAILROADS, HAVING A VITAL STAKE IN THE COAL INDUSTRY IN THE APPALACHIAN
AREA, OPPOSE THE GRANTING OF A CERTIFICATE FOR THE CONSTRUCTION OF
APPLICANT'S PROPOSED NATURAL-GAS PIPE LINE PRINCIPALLY ON THE GROUND
THAT THE PRESENT AND FUTURE FUEL NEEDS OF THAT AREA CAN BE ADEQUATELY
MET BY COAL.  IT IS CONTENDED THAT THE USE OF NATURAL GAS FOR
INDUSTRIAL AND SPACE-HEATING PURPOSES CONSTITUTES A DISSIPATION OF THE
NATURAL-GAS RESOURCES, AND THREATENS THE COAL INDUSTRY WITH RUINOUS
COMPTETITION.  CONSIDERABLE EVIDENCE WAS ADDUCED BY THESE INTERVENERS
FOR THE PURPOSE OF SUPPORTING SUCH CONTENTIONS. 

"'WE RECOGNIZE THE FORCE OF THESE ARGUMENTS AND ARE NOT UNMINDFUL OF
THE ECONOMIC AND SOCIAL ASPECTS OF THE PROBLEM POSED BY THESE
INTERVENERS.  WE ARE NOT AUTHORIZED, HOWEVER, TO REGULATE RATES FOR
NATURAL GAS SOLD DIRECTLY TO INDUSTRIAL CONSUMERS, WHICH CLASS OF GAS
SALES FURNISHES THE KEENEST COMPETITION TO THE COAL INDUSTRY.  NOR DOES
OUR POWER TO SUSPEND RATES EXTEND TO INDIRECT SALES OF NATURAL GAS FOR
INDUSTRIAL PURPOSES.  IT APPEARS, THEREFORE, THAT THE NATURAL GAS ACT
DOES NOT VEST THIS COMMISSION WITH COMPLETE AND COMPREHENSIVE AUTHORITY
WHICH WOULD PERMIT US TO ACT AS ARBITER OVER THE END USES OF NATURAL
GAS.'"  F.P.C., THE FIRST FIVE YEARS UNDER THE NATURAL GAS ACT 15, N.
14. 

FN11  SEE THE COMMISSION'S STATEMENT REPRODUCED IN S. REP. NO. 1234,
78TH CONG., 2D SESS.  3-6.  THE SENATE COMMITTEE ITSELF RECOGNIZED
THAT, FOLLOWING THE 1942 AMENDMENT TO THE ACT, THE COMMISSION WAS
DIRECTLY CONCERNED WITH CONSERVATION PROBLEMS.  ID., AT 1-2. 

FN12  UNDER SEC. 7(A) OF THE ACT, 15 U.S.C. SEC. 717FA), THE
COMMISSION HAS AUTHORITY TO COMPEL EXTENSIONS, THOUGH NOT ENLARGEMENTS,
OF A NATURAL GAS COMPANY'S TRANSPORTATION FACILITIES UNLESS "TO DO SO
WOULD IMPAIR ITS ABILITY TO RENDER ADEQUATE SERVICE TO ITS CUSTOMERS." 

FN13  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON H.R. 79, H.R. 1758, AND H.R. 982,
81ST CONG., 1ST SESS. 165. 

FN14  ID., AT 3. 

FN15  ID., AT 165. 

FN16  DURING THE COURSE OF HEARINGS HELD IN 1947 ON PROPOSED
AMENDMENTS TO THE NATURAL GAS ACT, COMMISSIONER SMITH SUMMED UP THE
POSITION OF THE COMMISSION AND EXPLAINED THE LANGUAGE USED IN THE 1944
REPORT ALONG SUBSTANTIALLY THE SAME LINES AS WE HAVE PURSUED.  HEARINGS
BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R.
2185, H.R. 2292, H.R. 2569, AND H.R. 2956, 80TH CONG., 1ST SESS. 685
686. 

FN17  THE HELPLESSNESS OF A CONSUMING STATE IN THIS REGARD IS
DRAMATICALLY ILLUSTRATED BY THE OPINION OF THE NEW YORK PUBLIC SERVICE
COMMISSION IN IN RE CABOT GAS CORP., 16 P.U.R. (N.S.)  443 (1936).  THE
LANGUAGE USED BY THE CHAIRMAN OF THE COMMISSION IS PARTICULARLY
RELEVANT IN THIS CONTEXT: 

"THERE CAN BE BUT ONE OPINION AMONG THOSE WHO BELIEVE IN THE
CONSERVATION OF NATURAL RESOURCES.  THEY SHOULD BE DEVELOPED NOT TO
BENEFIT A FEW INDIVIDUALS BUT IN THE INTERESTS OF PUBLIC WELFARE
PRESENT AND FUTURE.  OUR NATURAL GAS RESOURCES OUGHT TO BE CONSERVED
AND THERE IS PROBABLY NO FIELD WHERE THE FEDERAL GOVERNMENT ACTING IN
THE INTERESTS OF THE ENTIRE COUNTRY AND TO PROTECT THE WELFARE OF THE
FUTURE COULD ACCOMPLISH MORE THAN IN THE NATURAL GAS INDUSTRY.  FROM A
CONSERVATION VIEWPOINT, I THOROUGHLY AGREE WITH COMMISSIONER BURRITT,
AND IF I COULD SEE HOW A DENIAL OF THE PRESENT PETITION WOULD WORK TO
THIS END, I WOULD VOTE TO REFUSE THE APPLICATION; BUT WILL SUCH DENIAL
PRODUCE THE DESIRED RESULTS? 

"THE FIELD FROM WHICH GAS IS TO BE TAKEN BY THE PETITIONER IS IN
NORTHERN PENNSYLVANIA AND SOUTHERN NEW YORK.  APPARENTLY, FAR MORE OF
THE GAS WILL COME FROM PENNSYLVANIA THAN FROM NEW YORK AND OVER THE
EXTRACTION OF GAS IN THE STATE OF PENNSYLVANIA, THIS COMMISSION HAS
PRACTICALLY NO CONTROL.  IT IS POSSIBLE FOR PENNSYLVANIA COMPANIES TO
TAKE ALL OF THE GAS FROM THIS FIELD UNLESS THE NEW YORK COMPANIES
REMOVE THE GAS BEFORE THE FIELD IS EXHAUSTED. 

"FURTHER, THE PUBLIC SERVICE COMMISSION HAS BEEN GIVEN NO ADEQUATE
AUTHORITY TO DETERMINE HOW THE NATURAL GAS RESOURCES OF THIS STATE, TO
SAY NOTHING OF THE RESOURCES OF PENNSYLVANIA, SHALL BE DEVELOPED.  WE
HAVE NO POWERS DIRECTLY TO CONTROL THE AMOUNT OF GAS THAT IS TAKEN FROM
ANY FIELD AND OUR INDIRECT POWERS ARE SO LIMITED THAT IT IS DOUBTFUL IF
MUCH COULD BE ACCOMPLISHED.  THE STATE OF NEW YORK RECEIVES FAR MORE
GAS FROM SOURCES LOCATED BEYOND ITS BOUNDARIES THAN IT EXPORTS TO ANY
ADJOINING STATE AND THE CONSERVATION OF NATURAL GAS RESOURCES IN THE
VARIOUS STATES CANNOT BE PROPERLY BROUGHT ABOUT EXCEPT THROUGH
VOLUNTARY ACTION OF THE STATES OR BY THE FEDERAL GOVERNMENT.  NEITHER
ONE IS YET OPERATIVE AND WHILE ATTENTION HAS BEEN GIVEN TO ELECTRIC
INTERSTATE COMMERCE, NO EFFECTIVE STEPS HAVE BEEN TAKEN TO CONSERVE OR
REGULATE THE DISTRIBUTION OF NATURAL GAS, WHERE IT IS SO URGENTLY
NEEDED. 

"IN VIEW OF THE LACK OF AUTHORITY CONFERRED UPON THIS COMMISSION TO
CONSERVE NATURAL RESOURCES, THE QUESTION BECOMES PRIMARILY WHAT WILL BE
GAINED TO CONSUMERS IN THE STATE OF NEW YORK IF THE PETITION IS
DENIED.  IT IS STATED THAT ABOUT 80 OR 90 PER CENT OF THE GAS FURNISHED
BY THE PETITIONER WILL BE USED FOR INDUSTRIAL PURPOSES AND THAT ONLY
FROM 10 TO 20 PER CENT WILL GO TO THE GENERAL PUBLIC, THE INFERENCE
BEING THAT THE SAVING TO THE COMPANIES PURCHASING THE GAS WILL GO TO
ENRICH A FEW STOCKHOLDERS.  LET US ASSUME SUCH ARE THE FACTS.  WHO WILL
GAIN IF THOSE BENEFITED BY THE PETITION ARE DEPRIVED OF THEIR PROFITS
OR ADVANTAGES BY A DENIAL OF THE PETITION?  THIS COMMISSION DOES NOT
CONTROL THE USE THAT WILL BE MADE OF THE GAS FROM THE FIELD TAPPED BY
THE PETITIONER.  THERE ARE MANY OTHER COMPANIES TAPPING THE SUPPLY AND
WE HAVE NO MEANS OF DETERMINING WHERE, WHEN, OR TO WHOM THE GAS WILL BE
SOLD.  IF RESTRICTION IS IMPOSED ON THE USE OF IT IN NEW YORK, IT MAY
GO TO PENNSYLVANIA; AND IF THE PETITIONER IS NOT ALLOWED TO SUPPLY THE
AREAS WHICH IT IS PROPOSED TO SERVE, THE GAS WILL GO TO OTHER AREAS AND
THERE IS NO ASSURANCE THAT IT WILL BE USED ANY MORE BENEFICIALLY FROM A
PUBLIC VIEWPOINT THAN IT WILL BE IF THE PETITION IS GRANTED. 

"AS STATED, I AM HEARTILY IN FAVOR OF THE CONSERVATION OF NATURAL GAS
AS WELL AS OTHER NATURAL RESOURCES; BUT IN THIS SPECIFIC CASE, WILL THE
GRANTING OR THE DENIAL OF THE PETITION WORK TO THE BENEFIT OF THE
PEOPLE OF NEW YORK?  THE BENEFIT TO THE AREA TO BE SUPPLIED BY THE
PETITIONER IS DEFINITE, IT IS KNOWN, IT IS SURE.  BUT IF THE PETITION
IS DENIED, WHO WILL BE BENEFITED?  THERE IS NO ASSURANCE UPON THIS
POINT.  THE ANSWER IS SPECULATIVE AND UNCERTAIN.  THERE IS NOTHING TO
ASSURE US THAT THE DENIAL OF THE PETITION WOULD CONSERVE THE GAS
SUPPLY.  IS IT NOT LIKELY THAT THE BENEFITS WOULD MERELY BE DIVERTED
FROM ONE GROUP OF ONE LOCALITY TO ANOTHER?" 

IT MIGHT BE ARGUED THAT THIS ATTITUDE IS OUT OF DATE SINCE THE
COMMISSIONER WAS SPEAKING PRIOR TO THE ENACTMENT OF SEC. 11 OF THE
NATURAL GAS ACT.  SEE NOTE 7, SUPRA.  HOWEVER, THE SUCCESS OF SEC. 11
CAN BE MEASURED BY EXAMINATION OF THE OLDS-DRAPER REPORT, NOTE 3,
SUPRA, AT PP. 75-78. 

FN18  THE COMMISSION HAS RECENTLY SET FIELD PRICES FOR SALES FOR
RESALE IN THE AREA WHERE THIS GAS WAS BOUGHT AT 18 CENTS PER MCF.  SEE
25 FED. REG. 9578.  THE SALES PRICE TO CON.  ED. IN THIS DIRECT SALE
WAS 1 1/4 CENTS PER MCF.  OVER THE LINE AT WHICH THE COMMISSION IS
TRYING TO HOLD FIELD PRICES.  ANY READING OF THE COMMISSION'S OPINION
WHICH DOES NOT KEEP THIS FACT IN MIND IS, WE BELIEVE, BOUND TO BE
INCOMPLETE. 

FN19  COMPARE THE CASES WHICH HAVE HELD THAT IT WAS ERROR FOR THE
COMMISSION TO REFUSE TO CONSIDER CERTAIN FACTORS WITHIN ITS POWER OF
NOTICE.  E.G., CITY OF PITTSBURGH V. FEDERAL POWER COMM'N, 237 F.2D
741. 

FN20  MANY OF THE CASES IN WHICH THE COMMISSION HAS CERTIFICATED THE
TRANSPORTATION OF GAS PURSUANT TO DIRECT SALES ARE LISTED IN BRIEF FOR
RESPONDENT MICHIGAN CONSOLIDATED GAS CO. IN OPPOSITION TO THE PETITION
FOR CERTIORARI, PP. 24-30, PANHANDLE EASTERN PIPE LINE CO. V. FEDERAL
POWER COMM'N, NO. 369, 1956 TERM.    FN21  THE COURT OF APPEALS AGREED
WITH RESPONDENTS THAT CERTAIN LANGUAGE USED BY THE COMMISSION INDICATED
THAT THE COMMISSION WAS PER SE OPPOSED TO DIRECT SALES.  THE COURT
CONCENTRATED ON THE PASSAGE IN WHICH THE COMMISSION STATED THAT
CERTIFICATION WOULD HAVE THE ADVERSE EFFECT OF: 

"MAKING IT MORE DIFFICULT TO MEET THE REQUIREMENTS OF SMALLER
PURCHASERS IN THE EVENT ARRANGEMENTS OF THIS TYPE BECOME WIDESPREAD." 
21 F.P.C., AT 399-400. 

AND IT FELT THAT THIS WAS TANTAMOUNT TO SAYING THAT: 

"ONLY PIPE LINES SHOULD PURCHASE GAS FOR ONLY THEY ENGAGE IN
INTERSTATE TRANSPORTATION AND THEREBY COME UNDER AUTHORITY OF THE
COMMISSION."  271 F.2D, AT 953. 

HOWEVER, THE THRUST OF THE COMMISSION'S REASONING ON THIS POINT CAN
BE BETTER GRASPED BY REVIEWING THE PROPOSITION AS IT WAS ARGUED TO THE
COMMISSION BY ITS STAFF.  THE COMMISSION'S STAFF CONTENDED THAT: 

"THE PURCHASE OF NATURAL GAS BY AND TRANSPORTATION FOR THE ULTIMATE
CONSUMER, AS PROPOSED HEREIN, MAY MAKE IT DIFFICULT FOR PIPE LINE
COMPANIES TO PURCHASE GAS AT REASONABLE PRICES FOR RESALE TO OTHER
CUSTOMERS WHO REQUIRE THE GAS FOR SUPERIOR DOMESTIC AND COMMERCIAL USES
AND THUS MAY BE CONTRARY TO THE PUBLIC INTEREST." 

FN22  CF. UNITED STATES V. DETROIT & CLEVELAND NAVIGATION CO., 326
U.S. 236, 241, WHERE THE COURT UPHELD THE INTERSTATE COMMERCE
COMMISSION'S FORECAST OF THE FUTURE PUBLIC CONVENIENCE AND NECESSITY
OVER AN OBJECTION THAT THERE WAS NO ABSOLUTE SHOWING THAT THE FORECAST
WOULD COME TRUE. 

FN23  THE AMICUS BRIEFS OF TWO CALIFORNIA PUBLIC UTILITIES, SOUTHERN
CALIFORNIA GAS AND SOUTHERN COUNTIES GAS, REVEAL THAT THE COMPETITIVE
BIDDING OF CALIFORNIA EDISON CO., A LARGE INDUSTRIAL USER, FOR DIRECT
PURCHASES IN THE FIELD HAS ALREADY FORCED UP THE PRICES TO DOMESTIC
CONSUMERS IN CALIFORNIA.  BRIEF AMICI CURIAE OF THE SOUTHERN CALIFORNIA
GAS CO. AND THE SOUTHERN COUNTIES GAS CO. OF CALIFORNIA, PP. 13-14. 
SEVERAL OTHER INDUSTRIAL USERS ARE ALSO COMTEMPLATING TAKING ADVANTAGE
OF AN X-20 TYPE SERVICE.  SEE REPLY BRIEF FOR THE FEDERAL POWER
COMMISSION, PP. 4-5.  IN FACT, THE RECORD REVEALS THAT TRANSCO HAS
SUGGESTED THE POSSIBILITY OF PROVIDING X-20 SERVICE TO ITS OTHER
CUSTOMERS, R. 71A, AND SEVERAL OF THESE CUSTOMERS ARE NEGOTIATING FOR
SUCH SERVICE.  R. 63A-71A.  IT IS INTERESTING TO NOTE THAT AN ASSISTANT
TO THE VICE PRESIDENT OF CON.  ED. TESTIFIED THAT THE PRODUCERS SOLD
THE GAS DIRECTLY TO CON.  ED. WITH A LIMITATION ON RESALE BECAUSE "THEY
(THE PRODUCERS) WERE ALLERGIC TO PROCEEDINGS BEFORE THE FEDERAL POWER
COMMISSION."  R. 108A. 

FN24  R. 48A, 111A. 

FN25  AT THE TIME CERTIFICATION FOR THE X-20 SERVICE WAS SOUGHT,
CON.  ED. WAS USING GAS ON AN INTERRUPTIBLE BASIS AT A RATE THAT
AVERAGED 78,578 MCF.  PER DAY.  A SUBSTANTIAL AMOUNT OF THIS GAS WAS
FIRED UNDER CON.  ED.'S BOILERS, ALTHOUGH NOT UNDER THE BOILERS AT THE
WATERSIDE STATION.  NO REASON APPEARS IN THE RECORD WHY CON.  ED. COULD
NOT HAVE USED THE GAS IT WAS THEN RECEIVING UNDER ITS WATERSIDE BOILERS
TO ALLEVIATE, IF NOT SOLVE, THE AIR POLLUTION PROBLEM.  SEE R. 89A
92A. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
STEWART JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

THE COMMISSION'S DENIAL OF A CERTIFICATE FOR THE TRANSPORTATION OF
THIS NATURAL GAS RESTED ON A COMBINATION OF THREE DETERMINATIONS:  (1)
THE INFERIOR "END USE" OF THE GAS, THAT IS ITS USE FOR THE ALLEVIATION
OF AIR POLLUTION RESULTING FROM THE BURNING OF COAL IN THE WATERSIDE
PLANT OF CONSOLIDATED EDISON IN NEW YORK CITY; (2) THE EFFECT OF
PURCHASES SUCH AS THIS IN ENHANCING FUTURE FIELD PRICES OF NATURAL GAS;
AND (3) THE LIKELY PRE-EMPTION OF FUTURE PIPELINE TRANSPORTATION
CAPACITY RESULTING FROM SUCH PURCHASES. 

THOUGH I REGARD THE MATTER AS LESS CLEAR THAN THE COURT DOES, I AGREE
THAT THE LEGISLATIVE HISTORY OF THE 1942 AMENDMENTS TO THE NATURAL GAS
ACT SUPPORTS THE COMMISSION'S POWER TO CONSIDER INFERIOR END USE AS A
FACTOR IN DENYING TRANSCO A TRANSPORTATION CERTIFICATE FOR THE GAS IN
QUESTION.  HOWEVER, I CANNOT AGREE THAT THE PREMISES ON WHICH THE
COMMISSION RESTED ITS CONCLUSIONS AS TO FIELD PRICES AND THE PRE
EMPTION OF TRANSPORTATION CAPACITY ARE ADEQUATE TO JUSTIFY AFFIRMANCE
OF ITS DENIAL OF A CERTIFICATE. 

AS WILL BE SHOWN, THOSE CONCLUSIONS WERE BOTTOMED ALMOST ENTIRELY ON
THE PROPOSITION THAT MOST, IF NOT ALL, DIRECT PURCHASES, AT LEAST THOSE
OF SUBSTANTIAL MAGNITUDE, WOULD BE AGAINST THE PUBLIC INTEREST.  SINCE
I BELIEVE THAT THE DENIAL OF A CERTIFICATE IN THIS CASE HAD TO BE
PREMISED ON FACTORS PRESENT IN THIS PARTICULAR TRANSACTION, I THINK THE
PROPER COURSE IS TO REMAND THE CASE TO THE COMMISSION FOR FUTHER
CONSIDERATION ON PROPER POSTULATES. 

AT THE OUTSET, IT IS IMPORTANT TO NOTE THE PROCEDURAL CONTEXT OF OUR
REVIEW.  IN DENYING A PETITION FOR REHEARING, THE COMMISSION MADE CLEAR
THAT THE "END USE" FACTOR WAS NEITHER OF "DECISIVE" NOR OF
"DETERMINATIVE" IMPORTANCE; INFERIORITY OF END USE WAS BUT ONE OF
SEVERAL FACTORS WHICH TOGETHER, AND NOT INDIVIDUALLY, JUSTIFIED DENIAL
OF THIS CERTIFICATE IN THE COMMISSION'S VIEW.   THESE OTHER FACTORS
FAILING, AS THEY DO IN MY OPINION, THE DENIAL OF THE CERTIFICATE CANNOT
STAND. 

  I.

                     PREMISES OF THE COMMISSION'S DENIAL. 

I THINK IT MANIFEST THAT THE COMMISSION WEIGHED AGAINST CERTIFICATION
THE FACT THAT THE SALE TO CONSOLIDATED EDISON WAS DIRECT TO A CONSUMER
AND HENCE NOT SUBJECT TO NORMAL COMMISSION REGULATION OF SALES TO
PIPELINE COMPANIES FOR RESALE.  (FN1)  THE TRIAL EXAMINER REFERRED TO
"THE STAFF'S OPPOSITION" AS BASED, AMONG OTHER REASONS, ON THE FACT
THAT: 

"THE PROPOSAL IS OBVIOUSLY AN ATTEMPT TO EVADE THE JURISDICTION OF
THE COMMISSION OVER THE SALE OF NATURAL GAS FOR USE IN THE LARGE
CONSUMING CENTERS OF THE COUNTRY AND THUS MAY BE CONTRARY TO THE PUBLIC
INTEREST; ...  ." 

AND THE EXAMINER REFERRED TO THE STAFF'S ARGUMENT "THAT THIS SORT OF
NON-JURISDICTIONAL ACTIVITY BY CONSOLIDATED EDISON SHOULD BE HALTED AS
AN EXAMPLE TO OTHERS WHO MAY SIMILARLY ATTEMPT TO AVOID REGULATION IN
THIS WAY."  THE SAME ARGUMENT WAS REPEATED TO THE COMMISSION ITSELF. 

THAT THE COMMISSION ADOPTED THIS APPROACH OF VIEWING THIS PARTICULAR
SALE AS BUT A FACET OF THE BROADER DIRECT-SALE PROBLEM IS CLEAR FROM
THE REASONS IT STATES, 21 F.P.C. 138, AS WEIGHING TOWARDS DENIAL OF THE
CERTIFICATE.  EACH OF THE CONSIDERATIONS OF EFFECT ON FIELD PRICES AND
DISTRIBUTION OF FIELD SUPPLY IS WORDED IN THE PLURAL.  THE COMMISSION
THROUGHOUT ITS REPORT SPEAKS AS IF IT IS PRESENTLY FORBIDDING ACCESS TO
THE PRODUCER IN THE FIELD BY ANY ONE EXCEPT PIPELINES PURCHASING FOR
RESALE.  THAT IT IS NOT RESTRICTING ITSELF TO THE DENIAL OF THE
PARTICULAR TRANSPORTATION INVOLVED IN THE X-20 SERVICE BUT IS INSTEAD
ONLY DENYING THAT SERVICE BECAUSE OF THE ADVERSE EFFECTS THAT WOULD
RESULT FROM COMMITTING ITSELF TO REGULARLY ALLOWING DIRECT PURCHASES IN
THE FIELD BY NONPIPELINES, IS APPARENT FROM THE FOLLOWING: 

"IF WE WERE TO GRANT THIS REQUEST WE WOULD SOON BE CONFRONTED WITH
MANY REQUESTS OF THE SAME GENERAL CHARACTER  ...  . 

     *         *         *         *         * 

"HOW MUCH MORE SERIOUS IS THAT IMPACT (OF LARGE DEMAND ON LIMITED
SUPPLY) WHEN IT IS IN THE FORM OF MULTIPLE BIDDERS  ...  . 

"AND HOW LONG THE PIPELINE CAN CONTINUE BY BUY IN COMPETITION WITH
NONJURISDICTIONAL, LARGE VOLUME PURCHASERS  ...  IS AT LEAST A
QUESTION."  ID., P. 141. 

IN ITS DENIAL OF A REHEARING (FN2) THE COMMISSION ACKNOWLEDGED THAT
IT CONSIDERED THE "ADVERSE EFFECTS ON THE PUBLIC" OF GRANTING THIS "AND
SIMILAR SUCH AUTHORIZATIONS" INCLUDING "THE EFFECT OF STIMULATING
INCREASED PURCHASES OF GAS IN THE FIELD BY DISTRIBUTING COMPANIES IN
SUBSTITUTION FOR THE PRESENT, PREVALENT TYPES OF INTERSTATE NATURAL-GAS
SERVICES INVOLVING PURCHASES AND RESALES BY NATURAL-GAS PIPELINE
COMPANIES  ...  ."  ID., P. 399.  (FN3) 

IT IS CLEAR, THEN, THAT THE COMMISSION WAS CONCERNED WITH THE ADVERSE
EFFECTS IT FELT CHARACTERIZED MOST SALES TO DISTRIBUTING COMPANIES OR
CONSUMERS, RATHER THAN WITH ANYTHING OFFENSIVE ABOUT THIS PARTICULAR
SALE (EXCEPTING OF COURSE THE PROPOSED END USE).  WHAT WERE THESE
ADVERSE EFFECTS OF ALL DIRECT SALES?  TWO ARE CENTRAL TO THE
COMMISSION'S OPINION.  FIRST, "THE AUTHORIZATION OF THIS AND LIKE
PROPOSALS WOULD PRE-EMPT FOR THIS USAGE CAPACITY WHICH WOULD OTHERWISE
BE AVAILABLE TO MEET MORE URGENT AND WIDELY BENEFICIAL PUBLIC NEEDS
...  ."  21 F.P.C., AT 141.  (FN4)  SECOND, THERE IS THE EFFECT ON
FIELD PRICES: 

"THE IMPACT OF LARGE DEMAND ON RELATIVELY LIMITED SUPPLY IS CERTAIN
ENOUGH TO RAISE RATES AND FIELD PRICES IF ONLY ONE BIDDER IS BRINGING
THAT DEMAND TO BEAR ON THE SUPPLY.  HOW MUCH MORE SERIOUS IS THAT
IMPACT WHEN IT IS IN THE FORM OF MULTIPLE BIDDERS, EACH ATTEMPTING TO
RESERVE TO ITSELF A FIRM SUPPLY.  INEVITABLY, THERE WOULD BE UPWARD
PRESSURE ON RATE LEVELS IN THE FIELDS.  WE DO NOT BELIEVE WE OUGHT TO
ENCOURAGE SUCH WHEN IT IS UNNECESSARY  ...  ."  IBID. 

THUS, THE COMMISSION HAS QUITE EVIDENTLY ASSERTED A POWER TO FROWN
UPON ANY TRANSACTION WHICH DOES NOT TAKE THE FORM OF A SALE TO A
PIPELINE FOR RESALE.  ON THAT BASIS, IT WAS IN THIS CASE, AND WOULD
HEREAFTER BE, UNNECESSARY FOR THE COMMISSION TO DECIDE WHETHER A
PARTICULAR SALE TO A CONSUMER OR DISTRIBUTING COMPANY RESULTS IN A
WASTE OF JURISDICTIONAL RESOURCES OR AN UNWARRANTED BOOSTING OF FIELD
PRICES.  SINCE, IN THE COMMISSION'S VIEW, SALES NOT TO PIPELINES, AS A
CLASS, GENERALLY HAVE THESE UNFORTUNATE CHARACTERISTICS, IT IS
SUFFICIENT THAT THE PARTICULAR TRANSACTION IS ONE OF THAT CLASS.  THE
COMMISSION HAS MADE CLEAR THAT IT WAS THE HARMS INHERENT IN THE FORM
THIS SALE TOOK THAT WEIGHED AGAINST THE ISSUANCE OF A TRANSPORTATION
CERTIFICATE, NOT THE UNFORTUNATE EFFECTS OF THE TRANSACTION ITSELF.  I
CANNOT AGREE THAT THE COMMISSION HAD DISCRETION TO ADOPT THIS POSITION
WHEN IT HAD AVAILABLE TO IT FAR LESS DRASTIC ALTERNATIVES. 

                                       II.

   POSTULATES ON WHICH THE COMMISSION SHOULD HAVE PROCEEDED. 

WITHOUT PURPORTING TO EXHAUST THE FULL REACH OF ITS DISCRETION, THE
PREMISES ON WHICH THE COMMISSION, IN MY VIEW, SHOULD HAVE PROCEEDED
WILL BE NOW INDICATED.  BASICALLY, I THINK IT WAS OPEN TO THE
COMMISSION TO DECIDE WHETHER THE PARTICULAR TRANSPORTATION SERVICE
BEFORE IT WOULD TEND TO WASTE GAS, UNDULY PRE-EMPT PIPELINE CAPACITY,
OR RAISE FIELD PRICES.  I THINK THE COMMISSION CAN PROPERLY ASSERT THIS
MORE LIMITED POWER AS AN INCIDENT OF ITS TRANSPORTATION CERTIFICATING
POWERS.  (FN5)  IT IS QUITE TRUE OF COURSE THAT CONSOLIDATED EDISON
NEED NOT HAVE RESORTED TO THE FEDERAL POWER COMMISSION IF THE PURCHASE
TRANSACTION HAD BEEN POSSIBLE WITHOUT THE INTERSTATE TRANSPORTATION OF
THE GAS IN JURISDICTIONAL PIPELINES, SINCE THIS WAS NOT A PURCHASE OF
NATURAL GAS FOR RESALE.  NOTE 1, SUPRA.  HOWEVER, IT DOES NOT FOLLOW
THAT THE COMMISSION HAD TO BLIND ITSELF TO THE EFFECTS OF THE PURCHASE
AND USE OF THE GAS WHEN ITS AUTHORITY TO CERTIFICATE THE TRANSPORTATION
OF THE GAS WAS INVOKED.  TO RECOGNIZE THAT THE TRANSACTION WAS, AS A
PRACTICAL MATTER, IMPOSSIBLE WITHOUT THE USE OF JURISDICTIONAL
FACILITIES FOR THE INTERSTATE TRANSPORTATION OF THE PURCHASED GAS IS TO
ACKNOWLEDGE THAT THIS TRANSPORTATION IS AS INTEGRAL A PART OF THE
TRANSACTION AS WAS THE SALE ITSELF.  WHETHER THE ADVERSE EFFECT OF THE
TRANSACTION BE A WASTE OF A SCARCE RESOURCE, OR PRE-EMPTION OF PIPELINE
CAPACITY, OR A SUBSTANTIAL BOOSTING OF FIELD PRICES, THE TRANSPORTATION
IS AS RESPONSIBLE FOR THE EFFECTS AS IS THE ORIGINAL SALE.  I SEE NO
REASON WHY THE COMMISSION MUST CERTIFY, AS IN ACCORD WITH THE 'PUBLIC
CONVENIENCE AND NECESSITY," TRANSPORTATION WHICH TENDS MATERIALLY TO
FURTHER SUCH UNDESIRABLE RESULTS WHICH ARE WITHIN THE AREA OF THE
COMMISSION'S LEGITIMATE CONCERN WHEN IT IS CONSIDERING THE PUBLIC
CONVENIENCE AND NECESSITY OF CERTIFICATING A JURISDICTIONAL SALE. 

ASSUMING THAT IT IS RESULTS ONLY MADE POSSIBLE BY JURISDICATIONAL
TRANSPORTATION THAT THE COMMISSION WISHES TO CONSIDER, AN ATTEMPTED
DISTINCTION BETWEEN TRANSPORTATION AND SALE CERTIFICATION PROCEEDINGS
SIMPLY OBSCURES THE IMPORTANT QUESTION:  WHAT UNDESIRABLE RESULTS ARE
ENVISIONED BY SEC. 1(B) TO BE THE CONCERN OF THE STATES AND NOT THE
CONCERN OF THE FEDERAL POWER COMMISSION?  WE HOLD IN THIS CASE THAT THE
ECONOMIC WASTE OF NATURAL GAS THAT MIGHT OTHERWISE BE AVAILABLE FOR
JURISDICTIONAL TRANSACTIONS ENDING IN SUPERIOR USES IS SUCH A
LEGITIMATE CONCERN.  SIMILAR CONSIDERATIONS PERTAIN TO THE PRE-EMPTION
OF PIPELINE CAPACITY.  NOTE 4, SUPRA.  FINALLY, WE HAVE HELD IN
ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N, 360 U.S. 378, THAT THE
COMMISSION MUST CONSIDER THE EFFECT ON FIELD PRICES FOR FUTURE
JURISDICTIONAL SALES OF AN EXCESSIVE PURCHASE PRICE.  ASSERTING POWER
TO CONSIDER THESE EFFECTS DOES NOT INVOLVE ASSUMING JURISDICTION OVER
MATTERS THAT CONGRESS HAS RESERVED TO THE STATES IN SEC. 1(B), FOR IT
DOES NOT INVOLVE PROTECTING CITIZENS OF EITHER THE PRODUCING OR
CONSUMING STATE AGAINST HARMS THAT LOCAL REGULATORY BODIES HAVE THE
POWER TO PREVENT.  THESE EFFECTS BEING THE LEGITIMATE CONCERN OF THE
FEDERAL POWER COMMISSION, THEY ARE NO LESS SO IN A CERTIFICATION
PROCEEDING FOR TRANSPORTATION THAN IN SUCH A PROCEEDING FOR THE SALE OF
NATURAL GAS.  EACH OF THESE EFFECTS, IF MATERIALLY FURTHERED BY THE
TRANSPORTATION BEING CONSIDERED, CAN PROPERLY BE RELIED UPON, ON A CASE
BY-CASE BASIS, IN THE DENAL OF A TRANSPORTATION CERTIFICATE. 

              III. 

             DEFICIENCIES OF THE COMMISSION'S REPORT. 

IF, AS I HAVE ARGUED, THE COMMISSION HAS POWER TO DECIDE ON AN
ADEQUATE RECORD TO DENY A TRANSPORTATION CERTIFICATE IN PART BECAUSE
THE GAS TO BE TRANSPORTED IS TO BE USED FOR INFERIOR PURPOSES OR
BECAUSE THAT GAS WAS PURCHASED AT A PRICE ADVERSELY AFFECTING THE
PRICES OF LATER JURISDICTIONAL SALES, I DO NOT THINK THERE IS ANY BASIS
FOR THE COMMISSION'S FURTHER CLAIM OF AUTHORITY TO CONSIDER AS AN
ADVERSE FACTOR THE MERE FACT THAT THE SALE WAS DIRECT TO A CONSUMER OR
DISTRIBUTOR.  AS TO INFERIOR END USE OR PRE-EMPTION OF PIPELINE
CAPACITY, THE LATTER BEING ANOTHER ASPECT OF THE FORMER, THE INVALIDITY
OF THE COMMISSION'S CLAIM IS EASILY ESTABLISHED.  ONCE THE COMMISSION
HAS WEIGHED AGAINST THE GRANT OF THE CERTIFICATE THE FACT THAT IT
RESULTS IN ECONOMIC WASTE THERE IS NOTHING ADDED BY THE CIRCUMSTANCE
THAT IT IS ALSO A DIRECT SALE TO A CONSUMER AND THE COMMISSION'S BELIEF
THAT MOST OF SUCH SALES RESULT IN ECONOMIC WASTE. 

THE COMMISSION'S CONSIDERATION OF THE IMPACT ON FIELD PRICES IS MORE
REFINED, ALTHOUGH NO MORE SOLIDLY GROUNDED.  THE COMMISSION DID NOT
MERELY CONSIDER THAT THE PRICE OF THESE SALES WOULD BE UNREGULATABLE
AND ARGUE THAT THEREFORE ALL SALES TO CONSUMERS OR DISTRIBUTORS MUST BE
FORBIDDEN.  SO IT IS NOT A COMPLETE ANSWER TO REPEAT WHAT HAS JUST BEEN
SAID ABOUT THE COMMISSION'S CONSIDERATION OF INFERIOR "END USE" AND
PIPELINE PRE-EMPTION - THAT THOSE FACTORS CAN BE FULLY CONSIDERED ON A
CASE-BY-CASE BASIS.  THE COMMISSION PASSED BEYOND THE POSSIBLE PROBLEM
OF UNREGULATABLE PRICES TO AN ECONOMIC ARGUMENT, NAMELY, THAT
INCREASING EVEN THE NUMBER OF THEORETICALLY REGULATABLE BIDDERS FOR GAS
IN THE FIELD MUST, AS A PRACTICAL MATTER, CREATE A DIFFICULT-TO-CONTROL
AND-REGULATE UPWARD PRESSURE ON FIELD PRICES.  I CONSIDER REASONABLE
THE ECONOMICS OF THE COMMISSION'S POSITION, (FN6) BUT UNREASONABLE ITS
FINDING OF STATUTORY AUTHORITY FOR THE DRACONIAN SOLUTION IT PROPOSES. 

IN MY OPINION THE COMMISSION CANNOT ATTEMPT TO PROTECT ITS LEGITIMATE
INTEREST IN LOWER FIELD PRICES BY DENYING SALE OR TRANSPORTATION
CERTIFICATES TO ANY ARBITRARILY CHOSEN GROUP OF PURCHASERS.   SUCH
WHIMSY IS NOT CONTEMPLATED BY THE STATUTE.  IS THERE, THEN, A
JUSTIFYING BASIS FOR DISCRIMINATING AGAINST PURCHASERS OTHER THAN
PIPELINES PURCHASING FOR RESALE?  IT CANNOT BE THE FACT THAT THE USE
THESE PURCHASERS PROPOSE IS OFTEN INFERIOR, FOR THE COMMISSION CAN
CONSIDER THIS FACTOR WHEN THE OCCASION ARISES.  IT CANNOT BE THE FACT
THAT THE EFFECT ON FIELD PRICES IS WORSE, FOR PRICES PAID BY BOTH
PIPELINES AND OTHER PURCHASERS CAN BE CONSIDERED BY THE COMMISSION WHEN
PASSING UPON THE PUBLIC INTEREST EITHER IN A SALE-FOR-RESALE OR IN A
TRANSPORTATION CERTIFICATE PROCEEDING.  I CAN FIND NO JUSTIFYING BASIS
FOR THE DISTINCTION SOUGHT TO BE DRAWN BY THE COMMISSION BETWEEN
PIPELINES AND OTHERS. 

TO THE CONTRARY, THE DISCRIMINATION AGAINST NONPIPELINE PURCHASERS
FLOUTS THE STATUTORY STRUCTURE BY PERMITTING THE COMMISSION TO EXERCISE
GREATER REGULATORY POWER OVER TRANSACTIONS WITH ONE NONJURISDICTIONAL
ASPECT (THE DIRECT SALE) THAN THE COMMISSION HAS OVER TRANSACTIONS OF
WHICH BOTH ASPECTS (SALE-FOR-RESALE AND TRANSPORTATION) ARE
JURISDICTIONAL.  MOREOVER, TO RECOGNIZE THE DISCRIMINATION AGAINST
DIRECT SALES THAT THE COMMISSION PROPOSES IN ORDER TO REDUCE THE UPWARD
PRICE PRESSURE RESULTING FROM INCREASED NUMBERS OF BIDDERS, IS TO
IGNORE THE FACT THAT THE STATUTE CONTEMPLATES AND PROVIDES REGULATION
FOR THE USE OF PIPELINES BOTH AS WHOLLY TRANSPORTATION OR CARRIER
FACILITIES.  THERE IS NO INDICATION THAT THIS "CARRIER" FUNCTION OF
PIPELINES WAS TO BE LIMITED TO CARRYING FOR PRODUCERS WHO WOULD THEN
SELL IN THE STATE OF DESTINATION.  IT ALSO PROPERLY EXTENDS TO CARRYING
FOR AND TO WHOLESALERS OR CONSUMERS IN THE STATE OF DESTINATION. 
(FN7) 

THESE, THEN, IN MY OPINION ARE THE CONSIDERATIONS WHICH REQUIRE A
HOLDING THAT IT WAS AN ABUSE OF DISCRETION FOR THE COMMISSION TO HOLD
SALES TO PIPELINES GENERALLY MORE IN ACCORD WITH THE PUBLIC INTEREST
THAN OTHER SALES.  THERE IS ABSOLUTELY NO RATIONAL BASIS, AS I SEE IT,
FOR SELECTING DISTRIBUTING COMPANIES AND CONSUMERS AS THE GROUP OF
BIDDERS TO BE SACRIFICED AND ELIMINATED IN ORDER TO REDUCE THE PRESSURE
TOWARD HIGHER FIELD PRICES.  THERE IS NO HARMFUL CHARACTERISTIC OF
THESE BIDDERS THAT IS NOT FULLY SHARED BY PIPELINE PURCHASERS.  EVEN
WORSE, THE PURPOSEFUL ELIMINATION OF THIS ENTIRE CLASS OF PROSPECTIVE
PURCHASERS CLASHES WITH THE STRUCTURE OF A STATUTE THAT WAS LARGELY
MOTIVATED BY A DESIRE TO REDUCE THE POWER OF THE PIPELINE COMPANIES. 

THIS CONFLICT IS MOST CLEARLY MANIFESTED IN THE VIOLENCE THAT THE
COMMISSION'S PROPOSAL DOES TO THE STATUTE'S PROVISIONS FOR REGULATION
OF A WHOLLY CARRIER FUNCTION OF THE PIPELINES, FOR A WHOLLY CARRIER
FUNCTION CAN ONLY BE SERVED ON BEHALF OF EITHER PRODUCERS WHICH HAVE
ALREADY SOLD DIRECTLY TO NONPIPELINES OR ON BEHALF OF NONPIPELINES
WHICH HAVE ALREADY PURCHASED DIRECTLY FROM THE PRODUCERS.  IT IS
INESCAPABLE THAT FORBIDDING ALL TRANSACTIONS INVOLVING DIRECT SALES
BETWEEN PRODUCERS AND NONPIPELINES ELIMINATES ANY WHOLLY CARRIER
FUNCTION FOR THE PIPELINES, I.E., ELIMINATES ONE ENTIRE FACET OF THE
COMMISSION'S STATUTORY JURISDICTION.  THIS STATUTORY AMPUTATION -
RESULTING IN GREATER REGULATORY POWER OVER TRANSACTIONS WITH SOME
NONJURISDICTIONAL ASPECTS THAN THERE IS OVER TRANSACTIONS ALL ASPECTS
OF WHICH ARE JURISDICTIONAL - IS CLEARLY OUTSIDE THE DISCRETION OF THE
FEDERAL POWER COMMISSION. 

SINCE THE COMMISSION REGARDED AS NECESSARY TO ITS DECISION FACTORS
BEYOND ITS DISCRETION TO CONSIDER, THE PROCEEDING SHOULD BE REMANDED TO
THAT AGENCY FOR RECONSIDERATION.  WE CANNOT ORDER THE CERTIFICATE
GRANTED, FOR THERE ARE RESULTS OF THIS PARTICULAR TRANSPORTATION WHICH
THE COMMISSION CAN AND SHOULD PROPERLY CONSIDER BUT WHICH WERE LEFT
UNCONSIDERED BECAUSE OF THE ERRONEOUS BROADER GROUNDS OF THE DENIAL. 
ON REMAND THE COMMISSION SHOULD NOT ONLY CONSIDER AND SUPPORT WITH
ADEQUATE FACT FINDINGS THE PARTICULAR EFFECTS OF THIS TRANSACTION ON
FIELD PRICES AND ON TRANSCO'S FUTURE CAPACITY TO EXPAND ITS PIPELINE
SERVICES, BUT THE WAY SHOULD BE LEFT OPEN FOR IT TO GIVE MORE CAREFUL
CONSIDERATION TO THE "END USE" FACTOR IN ITS DECISION.  I MUST SAY THAT
ITS PREVIOUS CONSIDERATION OF THIS ASPECT OF THE MATTER SEEMS TO ME TO
LEAVE MUCH TO BE DESIRED, DOUBTLESS BECAUSE OF THE OVER-ALL MISTAKEN
PREMISES ON WHICH THE COMMISSION PROCEEDED.  IN A RECONSIDERATION OF
THE CASE UPON CORRECT PREMISES, THE AIR-POLLUTION PROBLEM MAY TAKE ON A
DIFFERENT SIGNIFICANCE, AND WHATEVER CONCLUSIONS THE COMMISSION MAY
REACH ON THIS SCORE SHOULD IN ANY EVENT BE ACCOMPANIED WITH MORE
CONVINCING PARTICULARIZED FINDINGS. 

FOR THE FOREGOING REASONS I WOULD VACATE THE JUDGMENT OF THE COURT OF
APPEALS AND REMAND THE CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS. 

FN1  THE BASIC REACH OF THE NATURAL GAS ACT, 15 U.S.C. SEC. 717 ET
SEQ., IS SET FORTH IN SEC. 1(B), 15 U.S.C. SEC. 717(B): 

"THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

FN2  21 F.P.C. 399. 

FN3  IF THERE CAN BE ANY DOUBT ON THIS SCORE, IT IS DISSIPATED BY THE
POSITION TAKEN BY THE COMMISSION IN THE "SUMMARY OF ARGUMENT" IN ITS
BRIEF IN THIS COURT: 

"THE THREAT POSED BY THE X-20 TYPE OF ARRANGEMENT TO THE SMALL
CONSUMER, THE PERSON FOR WHOM THE PROTECTIONS OF THE NATURAL GAS ACT
WERE DESIGNED, LIES IN ITS POTENTIAL TO ESTABLISH A NEW, UNREGULATED,
INTERSTATE MARKET FOR NATURAL GAS - BY THE LARGE INDUSTRIAL CONSUMER
PURCHASING DIRECTLY FROM THE PRODUCER - WHICH WILL COMPETE FOR NEW GAS
SUPPLIES WITH THE REGULATED MARKET OVER WHICH THE COMMISSION CURRENTLY
EXERCISES JURISDICTION  ...  . 

     *         *         *         *  * 

"IN THE COMMISSION'S VIEW, THE NEW MARKET WHICH THIS AND FURTHER X-20
TRANSACTIONS WOULD ESTABLISH (1) PORTENDS DEFINITE AND LASTING
INFLATIONARY IMPACT ON GAS PRICES GENERALLY, (2) WOULD PROBABLY BE
DEVOTED TO END-USES INAPPROPRIATE TO THE ACT'S PURPOSES, (3) WOULD
DISRUPT PATTERNS OF INDUSTRY GROWTH CAREFULLY EVOLVED DURING 20 YEARS
OF CONGRESSIONALLY-DIRECTED REGULATION, AND (4) WOULD BE BEYOND
EFFECTIVE STATE REGULATION. 

"ON THE BASIS OF ITS JUDGMENT THAT THESE DAMAGING PROBABLE EFFECTS
OUTWEIGHED BOTH (1) CON EDISON'S NEED FOR THE GAS, AND (2) THE
INADEQUATELY SHOWN CONTRIBUTION WHICH BURNING THE GAS AS BOILER FUEL
MIGHT MAKE TO LOCAL AIR POLLUTION CONTROL, THE COMMISSION DENIED
TRANSCO'S APPLICATION FOR A CERTIFICATE AS NOT BEING REQUIRED BY THE
PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY." 

FN4  I AGREE WITH THE COURT OF APPEALS THAT THIS CONSIDERATION
ULTIMATELY DEPENDS UPON THE INFERIORITY OF THE PROPOSED "END USE," ONLY
NOW THE END USE IS TO BE CONSIDERED IN THE CONTEXT OF LIMITED PIPELINE
CAPACITY RATHER THAN LIMITED SUPPLY OF GAS. 

FN5  SECTION 7(E), 15 U.S.C. SEC. 717FE), PROVIDES: 

"(E) EXCEPT IN THE CASES GOVERNED BY THE PROVISOS CONTAINED IN
SUBSECTION (C) OF THIS SECTION, A CERTIFICATE SHALL BE ISSUED TO ANY
QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE WHOLE OR ANY PART OF THE
OPERATION, SALE, SERVICE, CONSTRUCTION, EXTENSION, OR ACQUISITION
COVERED BY THE APPLICATION, IF IT IS FOUND THAT THE APPLICANT IS ABLE
AND WILLING PROPERLY TO DO THE ACTS AND TO PERFORM THE SERVICE PROPOSED
AND TO CONFORM TO THE PROVISIONS OF THE ACT AND THE REQUIREMENTS,
RULES, AND REGULATIONS OF THE COMMISSION THEREUNDER, AND THAT THE
PROPOSED SERVICE, SALE, OPERATION, CONSTRUCTION, EXTENSION, OR
ACQUISITION, TO THE EXTENT AUTHORIZED BY THE CERTIFICATE, IS OR WILL BE
REQUIRED BY THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY;
OTHERWISE SUCH APPLICATION SHALL BE DENIED  ...  ." 

FN6  THAT A GREATER NUMBER OF BIDDERS REPRESENTING THE SAME TOTAL
DEMAND AS A SMALLER NUMBER OF BIDDERS WOULD EXERT GREATER UPWARD
PRESSURE ON PRICES IS A BASIC HYPOTHESIS OF THE ANTITRUST LAWS WHICH
THEREFORE FORBID BUYERS TO GROUP TOGETHER IN DEALING WITH A SELLER. 
JUST AS COMPETITION IS STIFLED AND PRICE AFFECTED BY COMPETING SELLERS
AGREEING TO SELL THROUGH A SINGLE AGENT (AND THEREFORE AT A SINGLE
PRICE), PRICE IS ALSO AFFECTED BY SIMILAR ACTION BY COMPETING BUYERS. 
THE COMMISSION CONCLUSION ON THIS SUBFACTOR NEEDED NO SUPPORTING
EVIDENCE. 

FN7  FURTHERMORE, VIEWING THE MATTER REALISTICALLY, THE COMMISSION
MUST OBJECT AS STRENUOUSLY TO A PRODUCER SELLING IN THE STATE OF
ULTIMATE CONSUMPTION AS TO A DISTRIBUTOR OR CONSUMER BUYING IN THE
STATE OF PRODUCTION, FOR WHETHER THE DIRECT SALE BETWEEN A PRODUCER AND
CONSUMER TAKES PLACE BEFORE OR AFTER THE TRANSPORTATION OF THE GAS IS A
MATTER EASILY MANIPULATED BY THE PARTIES AND A MATTER WHICH HAS NO
EFFECT ON THE COMMISSION'S POLICY CONSIDERATIONS.  THE UPWARD PRESSURE
ON FIELD PRICES CREATED BY INCREASING THE TOTAL NUMBER OF BIDDERS IS
THE SAME WHETHER THE PRODUCER FINDS ADDITIONAL BIDDERS IN THE CONSUMING
STATE OR ALLOWS THEM TO COME TO HIM IN THE FIELD. 
..END :





















TIMES FILM CORP. V. CITY OF CHICAGO 365 U.S. 43 


NO. 34.  ARGUED OCTOBER 19-20, 1960 - DECIDED JANUARY 23, 1961 - 272
F.2D 90, AFFIRMED. 


THE MUNICIPAL CODE OF CHICAGO, SEC. 155-4, REQUIRES SUBMISSION OF ALL
MOTION PICTURES FOR EXAMINATION OR CENSORSHIP PRIOR TO THEIR PUBLIC
EXHIBITION AND FORBIDS THEIR EXHIBITION UNLESS THEY MEET CERTAIN
STANDARDS.  PETITIONER APPLIED FOR A PERMIT TO EXHIBIT A CERTAIN MOTION
PICTURE AND TENDERED THE REQUIRED LICENSE FEE; BUT THE PERMIT WAS
DENIED, SOLELY BECAUSE PETITIONER REFUSED TO SUBMIT THE FILM FOR
EXAMINATION.  PETITIONER SUED IN A FEDERAL DISTRICT COURT FOR
INJUNCTIVE RELIEF ORDERING ISSUANCE OF THE PERMIT WITHOUT SUBMISSION OF
THE FILM AND RESTRAINING THE CITY OFFICIALS FROM INTERFERING WITH ITS
EXHIBITION.  IT DID NOT SUBMIT THE FILM TO THE COURT OR OFFER ANY
EVIDENCE AS TO ITS CONTENT.  THE DISTRICT COURT DISMISSED THE COMPLAINT
ON THE GROUND, INTER ALIA, THAT NEITHER A SUBSTANTIAL FEDERAL QUESTION
NOR A JUSTICIABLE CONTROVERSY WAS PRESENTED.  HELD:  THE PROVISION
REQUIRING SUBMISSION OF MOTION PICTURES FOR EXAMINATION OR CENSORSHIP
PRIOR TO THEIR PUBLIC EXHIBITION IS NOT VOID ON ITS FACE AS VIOLATIVE
OF THE FIRST AND FOURTEENTH AMENDMENTS, AND THE JUDGMENT OF DISMISSAL
IS AFFIRMED.  PP. 44-50. 

(A)  THIS CASE PRESENTS A JUSTICIABLE CONTROVERSY.  PP. 45-46. 

(B)  PETITIONER'S NARROW ATTACK ON THE ORDINANCE DOES NOT REQUIRE
THAT ANY CONSIDERATION BE GIVEN TO THE VALIDITY OF THE STANDARDS SET
OUT THEREIN, SINCE THEY ARE NOT CHALLENGED AND ARE NOT BEFORE THIS
COURT.  PP. 46-47. 

(C)  IT HAS NEVER BEEN HELD THAT LIBERTY OF SPEECH IS ABSOLUTE OR
THAT ALL PRIOR RESTRAINTS ON SPEECH ARE INVALID.  PP. 47-49. 

(D)  ALTHOUGH MOTION PICTURES ARE INCLUDED WITHIN THE FREE SPEECH AND
FREE PRESS GUARANTIES OF THE FIRST AND FOURTEENTH AMENDMENTS, THERE IS
NO ABSOLUTE FREEDOM TO EXHIBIT PUBLICLY, AT LEAST ONCE, EVERY KIND OF
MOTION PICTURE.  PP. 46, 49-50. 

TIMES FILM CORP. V. CITY OF CHICAGO ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER CHALLENGES ON CONSTITUTIONAL GROUNDS THE VALIDITY ON ITS
FACE OF THAT PORTION OF SEC. 155-4 (FN1) OF THE MUNICIPAL CODE OF THE
CITY OF CHICAGO WHICH REQUIRES SUBMISSION OF ALL MOTION PICTURES FOR
EXAMINATION PRIOR TO THEIR PUBLIC EXHIBITION.  PETITIONER IS A NEW YORK
CORPORATION OWNING THE EXCLUSIVE RIGHT TO PUBLICLY EXHIBIT IN CHICAGO
THE FILM KNOWN AS "DON JUAN."  IT APPLIED FOR A PERMIT, AS CHICAGO'S
ORDINANCE REQUIRED, AND TENDERED THE LICENSE FEE BUT REFUSED TO SUBMIT
THE FILM FOR EXAMINATION.  THE APPROPRIATE CITY OFFICIAL REFUSED TO
ISSUE THE PERMIT AND HIS ORDER WAS MADE FINAL ON APPEAL TO THE MAYOR. 
THE SOLE GROUND FOR DENIAL WAS PETITIONER'S REFUSAL TO SUBMIT THE FILM
FOR EXAMINATION AS REQUIRED.  PETITIONER THEN BROUGHT THIS SUIT SEEKING
INJUNCTIVE RELIEF ORDERING THE ISSUANCE OF THE PERMIT WITHOUT
SUBMISSION OF THE FILM AND RESTRAINING THE CITY OFFICIALS FROM
INTERFERING WITH THE EXHIBITION OF THE PICTURE.  ITS SOLE GROUND IS
THAT THE PROVISION OF THE ORDINANCE REQUIRING SUBMISSION OF THE FILM
CONSTITUTES, ON ITS FACE, A PRIOR RESTRAINT WITHIN THE PROHIBITION OF
THE FIRST AND FOURTEENTH AMENDMENTS.  THE DISTRICT COURT DISMISSED THE
COMPLAINT ON THE GROUNDS, INTER ALIA, THAT NEITHER A SUBSTANTIAL
FEDERAL QUESTION NOR EVEN A JUSTICIABLE CONTROVERSY WAS PRESENTED.  180
F. SUPP. 843.  THE COURT OF APPEALS AFFIRMED, FINDING THAT THE CASE
PRESENTED MERELY AN ABSTRACT QUESTION OF LAW SINCE NEITHER THE FILM NOR
EVIDENCE OF ITS CONTENT WAS SUBMITTED.  272 F.2D 90.  THE PRECISE
QUESTION AT ISSUE HERE NEVER HAVING BEEN SPECIFICALLY DECIDED BY THIS
COURT, WE GRANTED CERTIORARI, 362 U.S. 917 (1960). 

WE ARE SATISFIED THAT A JUSTICIABLE CONTROVERSY EXISTS.  THE SECTION
OF CHICAGO'S ORDINANCE IN CONTROVERSY SPECIFICALLY PROVIDES THAT A
PERMIT FOR THE PUBLIC EXHIBITION OF A MOTION PICTURE MUST BE OBTAINED;
THAT SUCH "PERMIT SHALL BE GRANTED ONLY AFTER THE MOTION PICTURE FILM
FOR WHICH SAID PERMIT IS REQUESTED HAS BEEN PRODUCED AT THE OFFICE OF
THE COMMISSIONER OF POLICE FOR EXAMINATION"; THAT THE COMMISSIONER
SHALL REFUSE THE PERMIT IF THE PICTURE DOES NOT MEET CERTAIN STANDARDS;
(FN2) AND THAT IN THE EVENT OF SUCH REFUSAL THE APPLICANT MAY APPEAL TO
THE MAYOR FOR A DE NOVO HEARING AND HIS ACTION SHALL BE FINAL. 
VIOLATION OF THE ORDINANCE CARRIES CERTAIN PUNISHMENTS.  THE PETITIONER
COMPLIED WITH THE REQUIREMENTS OF THE ORDINANCE, SAVE FOR THE
PRODUCTION OF THE FILM FOR EXAMINATION.  THE CLAIM IS THAT THIS
CONCRETE AND SPECIFIC STATUTORY REQUIREMENT, THE PRODUCTION OF THE FILM
AT THE OFFICE OF THE COMMISSIONER FOR EXAMINATION, IS INVALID AS A
PREVIOUS RESTRAINT ON FREEDOM OF SPEECH.  IN JOSEPH BURSTYN, INC., V.
WILSON, 343 U.S. 495, 502 (1952), WE HELD THAT MOTION PICTURES ARE
INCLUDED "WITHIN THE FREE SPEECH AND FREE PRESS GUARANTY OF THE FIRST
AND FOURTEENTH AMENDMENTS."  ADMITTEDLY, THE CHALLENGED SECTION OF THE
ORDINANCE IMPOSES A PREVIOUS RESTRAINT, AND THE BROAD JUSTICIABLE ISSUE
IS THEREFORE PRESENT AS TO WHETHER THE AMBIT OF CONSTITUTIONAL
PROTECTION INCLUDES COMPLETE AND ABSOLUTE FREEDOM TO EXHIBIT, AT LEAST
ONCE, ANY AND EVERY KIND OF MOTION PICTURE.  IT IS THAT QUESTION ALONE
WHICH WE DECIDE.  WE HAVE CONCLUDED THAT SEC. 155-4 OF CHICAGO'S
ORDINANCE REQUIRING THE SUBMISSION OF FILMS PRIOR TO THEIR PUBLIC
EXHIBITION IS NOT, ON THE GROUNDS SET FORTH, VOID ON ITS FACE. 

PETITIONER'S NARROW ATTACK UPON THE ORDINANCE DOES NOT REQUIRE THAT
ANY CONSIDERATION BE GIVEN TO THE VALIDITY OF THE STANDARDS SET OUT
THEREIN.  THEY ARE NOT CHALLENGED AND ARE NOT BEFORE US. PRIOR MOTION
PICTURE CENSORSHIP CASES WHICH REACHED THIS COURT INVOLVED QUESTIONS OF
STANDARDS.  (FN3)  THE FILMS HAD ALL BEEN SUBMITTED TO THE AUTHORITIES
AND PERMITS FOR THEIR EXHIBITION WERE REFUSED BECAUSE OF THEIR
CONTENT.  OBVIOUSLY, WHETHER A PARTICULAR STATUTE IS "CLEARLY DRAWN,"
OR "VAGUE," OR "INDEFINITE," OR WHETHER A CLEAR STANDARD IS IN FACT MET
BY A FILM ARE DIFFERENT QUESTIONS INVOLVING OTHER CONSTITUTIONAL
CHALLENGES TO BE TESTED BY CONSIDERATIONS NOT HERE INVOLVED. 

MOREOVER, THERE IS NOT A WORD IN THE RECORD AS TO THE NATURE AND
CONTENT OF "DON JUAN."  WE ARE LEFT ENTIRELY IN THE DARK IN THIS
REGARD, AS WERE THE CITY OFFICIALS AND THE OTHER REVIEWING COURTS. 
PETITIONER CLAIMS THAT THE NATURE OF THE FILM IS IRRELEVANT, AND THAT
EVEN IF THIS FILM CONTAINS THE BASEST TYPE OF PORNOGRAPHY, OR
INCITEMENT TO RIOT, OR FORCEFUL OVERTHROW OF ORDERLY GOVERNMENT, IT MAY
NONETHELESS BE SHOWN WITHOUT PRIOR SUBMISSION FOR EXAMINATION.  THE
CHALLENGE HERE IS TO THE CENSOR'S BASIC AUTHORITY; IT DOES NOT GO TO
ANY STATUTORY STANDARDS EMPLOYED BY THE CENSOR OR PROCEDURAL
REQUIREMENTS AS TO THE SUBMISSION OF THE FILM. 

IN THIS PERSPECTIVE WE CONSIDER THE PRIOR DECISIONS OF THIS COURT
TOUCHING ON THE PROBLEM.  BEGINNING OVER A THIRD OF A CENTURY AGO IN
GITLOW V. NEW YORK, 268 U.S. 652 (1925), THEY HAVE CONSISTENTLY
RESERVED FOR FUTURE DECISION POSSIBLE SITUATIONS IN WHICH THE CLAIMED
FIRST AMENDMENT PRIVILEGE MIGHT HAVE TO GIVE WAY TO THE NECESSITIES OF
THE PUBLIC WELFARE.  IT HAS NEVER BEEN HELD THAT LIBERTY OF SPEECH IS
ABSOLUTE.  NOR HAS IT BEEN SUGGESTED THAT ALL PREVIOUS RESTRAINTS ON
SPEECH ARE INVALID.  ON THE CONTRARY, IN NEAR V. MINNESOTA, 283 U.S.
697, 715-716 (1931), CHIEF JUSTICE HUGHES, IN DISCUSSING THE CLASSIC
LEGAL STATEMENTS CONCERNING THE IMMUNITY OF THE PRESS FROM CENSORSHIP,
OBSERVED THAT THE PRINCIPLE FORBIDDING PREVIOUS RESTRAINT "IS STATED
TOO BROADLY, IF EVERY SUCH RESTRAINT IS DEEMED TO BE PROHIBITED  ...  .
THE PROTECTION EVEN AS TO PREVIOUS RESTRAINT IS NOT ABSOLUTELY
UNLIMITED.  BUT THE LIMITATION HAS BEEN RECOGNIZED ONLY IN EXCEPTIONAL
CASES."  THESE INCLUDED, THE CHIEF JUSTICE FOUND, UTTERANCES CREATING
"A HINDRANCE" TO THE GOVERNMENT'S WAR EFFORT, AND "ACTUAL OBSTRUCTION
TO ITS RECRUITING SERVICE OR THE PUBLICATION OF THE SAILING DATES OF
TRANSPORTS OR THE NUMBER AND LOCATION OF TROOPS."  IN ADDITION, THE
COURT SAID THAT "THE PRIMARY REQUIREMENTS OF DECENCY MAY BE ENFORCED
AGAINST OBSCENE PUBLICATIONS" AND THE "SECURITY OF THE COMMUNITY LIFE
MAY BE PROTECTED AGAINST INCITEMENTS TO ACTS OF VIOLENCE AND THE
OVERTHROW BY FORCE OF ORDERLY GOVERNMENT."  SOME YEARS LATER, A
UNANIMOUS COURT, SPEAKING THROUGH MR. JUSTICE MURPHY, IN CHAPLINSKY V.
NEW HAMPSHIRE, 315 U.S. 568, 571-572 (1942), HELD THAT THERE WERE
"CERTAIN WELL-DEFINED AND NARROWLY LIMITED CLASSES OF SPEECH, THE
PREVENTION AND PUNISHMENT OF WHICH HAVE NEVER BEEN THOUGHT TO RAISE ANY
CONSTITUTIONAL PROBLEM.  THESE INCLUDE THE LEWD AND OBSCENE, THE
PROFANE, THE LIBELOUS, AND THE INSULTING OR 'FIGHTING' WORDS - THOSE
WHICH BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE AN
IMMEDIATE BREACH OF THE PEACE."  THEREAFTER, AS WE HAVE MENTIONED, IN
JOSEPH BURSTYN, INC., V. WILSON, SUPRA, WE FOUND MOTION PICTURES TO BE
WITHIN THE GUARANTEES OF THE FIRST AND FOURTEENTH AMENDMENTS, BUT WE
ADDED THAT THIS WAS "NOT THE END OF OUR PROBLEM.  IT DOES NOT FOLLOW
THAT THE CONSTITUTION REQUIRES ABSOLUTE FREEDOM TO EXHIBIT EVERY MOTION
PICTURE OF EVERY KIND AT ALL TIMES AND ALL PLACES."  AT P. 502.  FIVE
YEARS LATER, IN ROTH V. UNITED STATES, 354 U.S. 476, 483 (1957), WE
HELD THAT "IN LIGHT OF  ...  HISTORY, IT IS APPARENT THAT THE
UNCONDITIONAL PHRASING OF THE FIRST AMENDMENT WAS NOT INTENDED TO
PROTECT EVERY UTTERANCE."  EVEN THOSE IN DISSENT THERE FOUND THAT
"FREEDOM OF EXPRESSION CAN BE SUPPRESSED IF, AND TO THE EXTENT THAT, IT
IS SO CLOSELY BRIGADED WITH ILLEGAL ACTION AS TO BE AN INSEPARABLE PART
OF IT."  ID., AT 514.  AND, DURING THE SAME TERM, IN KINGSLEY BOOKS,
INC., V. BROWN, 354 U.S. 436, 441 (1957), AFTER CHARACTERIZING NEAR V.
MINNESOTA, SUPRA, AS "ONE OF THE LANDMARK OPINIONS" IN ITS AREA, WE
TOOK NOTICE THAT NEAR "LEFT NO DOUBTS THAT 'LIBERTY OF SPEECH, AND OF
THE PRESS, IS ALSO NOT AN ABSOLUTE RIGHT  ...  THE PROTECTION EVEN AS
TO PREVIOUS RESTRAINT IS NOT ABSOLUTELY UNLIMITED'  ...  .  THE
JUDICIAL ANGLE OF VISION," WE SAID THERE, "IN TESTING THE VALIDITY OF A
STATUTE LIKE SEC. 22-A (NEW YORK'S INJUNCTIVE REMEDY AGAINST CERTAIN
FORMS OF OBSCENITY) IS 'THE OPERATION AND EFFECT OF THE STATUTE IN
SUBSTANCE.'"  AND AS IF TO EMPHASIZE THE POINT INVOLVED HERE, WE ADDED
THAT "THE PHRASE 'PRIOR RESTRAINT' IS NOT A SELF-WIELDING SWORD.  NOR
CAN IT SERVE AS A TALISMANIC TEST."  EVEN AS RECENTLY AS OUR LAST TERM
WE AGAIN OBSERVED THE PRINCIPLE, ALBEIT IN AN ALLIED AREA, THAT THE
STATE POSSESSES SOME MEASURE OF POWER "TO PREVENT THE DISTRIBUTION OF
OBSCENE MATTER."  SMITH V. CALIFORNIA, 361 U.S. 147, 155 (1959). 

PETITIONER WOULD HAVE US HOLD THAT THE PUBLIC EXHIBITION OF MOTION
PICTURES MUST BE ALLOWED UNDER ANY CIRCUMSTANCES.  THE STATE'S SOLE
REMEDY, IT SAYS, IS THE INVOCATION OF CRIMINAL PROCESS UNDER THE
ILLINOIS PORNOGRAPHY STATUTE, ILL. REV. STAT. (1959), C. 38, SEC. 470,
AND THEN ONLY AFTER A TRANSGRESSION.  BUT THIS POSITION, AS WE HAVE
SEEN, IS FOUNDED UPON THE CLAIM OF ABSOLUTE PRIVILEGE AGAINST PRIOR
RESTRAINT UNDER THE FIRST AMENDMENT - A CLAIM WITHOUT SANCTION IN OUR
CASES.  TO ILLUSTRATE ITS FALLACY, WE NEED ONLY POINT TO ONE OF THE
"EXCEPTIONAL CASES" WHICH CHIEF JUSTICE HUGHES ENUMERATED IN NEAR V.
MINNESOTA, SUPRA, NAMELY, "THE PRIMARY REQUIREMENTS OF DECENCY THAT MAY
BE ENFORCED AGAINST OBSCENE PUBLICATIONS."  MOREVOER, WE LATER HELD
SPECIFICALLY "THAT OBSCENITY IS NOT WITHIN THE AREA OF CONSTITUTIONALLY
PROTECTED SPEECH OR PRESS."  ROTH V. UNITED STATES, 354 U.S. 476, 485
(1957).  CHICAGO EMPHASIZES HERE ITS DUTY TO PROTECT ITS PEOPLE AGAINST
THE DANGERS OF OBSCENITY IN THE PUBLIC EXHIBITION OF MOTION PICTURES. 
TO THIS ARGUMENT PETITIONER'S ONLY ANSWER IS THAT REGARDLESS OF THE
CAPACITY FOR, OR EXTENT OF, SUCH AN EVIL, PREVIOUS RESTRAINT CANNOT BE
JUSTIFIED.  WITH THIS WE CANNOT AGREE.  WE RECOGNIZED IN BURSTYN,
SUPRA, THAT "CAPACITY FOR EVIL ...  MAY BE RELEVANT IN DETERMINING THE
PERMISSIBLE SCOPE OF COMMUNITY CONTROL," AT P. 502, AND THAT MOTION
PICTURES WERE NOT "NECESSARILY SUBJECT TO THE PRECISE RULES GOVERNING
ANY OTHER PARTICULAR METHOD OF EXPRESSION.  EACH METHOD," WE SAID,
"TENDS TO PRESENT ITS OWN PECULIAR PROBLEMS."  AT P. 503.  CERTAINLY
PETITIONER'S BROADSIDE ATTACK DOES NOT WARRANT, NOR COULD IT JUSTIFY ON
THE RECORD HERE, OUR SAYING THAT - ASIDE FROM ANY CONSIDERATION OF THE
OTHER "EXCEPTIONAL CASES" MENTIONED IN OUR DECISIONS - THE STATE IS
STRIPPED OF ALL CONSTITUTIONAL POWER TO PREVENT, IN THE MOST EFFECTIVE
FASHION, THE UTTERANCE OF THIS CLASS OF SPEECH.  IT IS NOT FOR THIS
COURT TO LIMIT THE STATE IN ITS SELECTION OF THE REMEDY IT DEEMS MOST
EFFECTIVE TO COPE WITH SUCH A PROBLEM, ABSENT, OF COURSE, A SHOWING OF
UNREASONABLE STRICTURES ON INDIVIDUAL LIBERTY RESULTING FROM ITS
APPLICATION IN PARTICULAR CIRCUMSTANCES.  KINGSLEY BOOKS, INC., V.
BROWN, SUPRA, AT P. 441.  WE, OF COURSE, ARE NOT HOLDING THAT CITY
OFFICIALS MAY BE GRANTED THE POWER TO PREVENT THE SHOWING OF ANY MOTION
PICTURE THEY DEEM UNWORTHY OF A LICENSE.  JOSEPH BURSTYN, INC., V.
WILSON, SUPRA, AT 504-505. 

AS TO WHAT MAY BE DECIDED WHEN A CONCRETE CASE INVOLVING A SPECIFIC
STANDARD PROVIDED BY THIS ORDINANCE IS PRESENTED, WE INTIMATE NO
OPINION.  THE PETITIONER HAS NOT CHALLENGED ALL - OR FOR THAT MATTER
ANY - OF THE ORDINANCE'S STANDARDS.  NATURALLY WE COULD NOT SAY THAT
EVERY ONE OF THE STANDARDS, INCLUDING THOSE WHICH ILLINOIS' HIGHEST
COURT HAS FOUND SUFFICIENT, IS SO VAGUE ON ITS FACE THAT THE ENTIRE
ORDINANCE IS VOID.  AT THIS TIME WE SAY NO MORE THAN THIS - THAT WE ARE
DEALING ONLY WITH MOTION PICTURES AND, EVEN AS TO THEM, ONLY IN THE
CONTEXT OF THE BROADSIDE ATTACK PRESENTED ON THIS RECORD.  AFFIRMED. 

FN1  THE PORTION OF THE SECTION HERE UNDER ATTACK IS AS FOLLOWS: 

"SUCH PERMIT SHALL BE GRANTED ONLY AFTER THE MOTION PICTURE FILM FOR
WHICH SAID PERMIT IS REQUESTED HAS BEEN PRODUCED AT THE OFFICE OF THE
COMMISSIONER OF POLICE FOR EXAMINATION OR CENSORSHIP  ...  ." 

FN2  THAT PORTION OF SEC. 155-4 OF THE CODE PROVIDING STANDARDS IS AS
FOLLOWS: 

"IF A PICTURE OR SERIES OF PICTURES, FOR THE SHOWING OR EXHIBITION OF
WHICH AN APPLICATION FOR A PERMIT IS MADE, IS IMMORAL OR OBSCENE, OR
PORTRAYS DEPRAVITY, CRIMINALITY, OR LACK OF VIRTUE OF A CLASS OF
CITIZENS OF ANY RACE, COLOR, CREED, OR RELIGION AND EXPOSES THEM TO
CONTEMPT, DERISION, OR OBLOQUY, OR TENDS TO PRODUCE A BREACH OF THE
PEACE OR RIOTS, OR PURPORTS TO REPRESENT ANY HANGING, LYNCHING, OR
BURNING OF A HUMAN BEING, IT SHALL BE THE DUTY OF THE COMMISSIONER OF
POLICE TO REFUSE SUCH PERMIT; OTHERWISE IT SHALL BE HIS DUTY TO GRANT
SUCH PERMIT. 

"IN CASE THE COMMISSIONER OF POLICE SHALL REFUSE TO GRANT A PERMIT AS
HEREINBEFORE PROVIDED, THE APPLICANT FOR THE SAME MAY APPEAL TO THE
MAYOR.  SUCH APPEAL SHALL BE PRESENTED IN THE SAME MANNER AS THE
ORIGINAL APPLICATION TO THE COMMISSIONER OF POLICE.  THE ACTION OF THE
MAYOR ON ANY APPLICATION FOR A PERMIT SHALL BE FINAL."    "IT SHOULD BE
NOTED THAT THE SUPREME COURT OF ILLINOIS, IN AN OPINION BY SCHAEFER,
C.J., HAS ALREADY CONSIDERED AND REJECTED AN ARGUMENT AGAINST THE SAME
CHICAGO ORDINANCE, SIMILAR TO THE CLAIM ADVANCED HERE BY PETITIONER. 
THE SAME COURT ALSO SUSTAINED CERTAIN OF THE STANDARDS SET OUT ABOVE. 
AMERICAN CIVIL LIBERTIES UNION V. CITY OF CHICAGO, 3 ILL. 2D 334, 121
N.E.2D 585 (1954). 

FN3  JOSEPH BURSTYN, INC., V. WILSON, SUPRA ("SACRILEGIOUS"); GELLING
V. TEXAS, 343 U.S. 960 (1952)(PREJUDICIAL TO THE BEST INTERESTS OF THE
PEOPLE OF SAID CITY"); COMMERCIAL PICTURES CORP. V. REGENTS, 346 U.S.
587 (1954)("IMMORAL"); SUPERIOR FILMS, INC., V. DEPARTMENT OF
EDUCATION, 346 U.S. 587 (1954)("HARMFUL"); KINGSLEY INTERNATIONAL
PICTURES CORP. V. REGENTS, 360 U.S. 684 (1959)("SEXUAL IMMORALITY"). 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

I CANNOT AGREE EITHER WITH THE CONCLUSION REACHED BY THE COURT OR
WITH THE REASONS ADVANCED FOR ITS SUPPORT.  TO ME, THIS CASE CLEARLY
PRESENTS THE QUESTION OF OUR APPROVAL OF UNLIMITED CENSORSHIP OF MOTION
PICTURES BEFORE EXHIBITION THROUGH A SYSTEM OF ADMINISTRATIVE
LICENSING.  MOREOVER, THE DECISION PRESENTS A REAL DANGER OF EVENTUAL
CENSORSHIP FOR EVERY FORM OF COMMUNICATION, BE IT NEWSPAPERS, JOURNALS,
BOOKS, MAGAZINES, TELEVISION, RADIO OR PUBLIC SPEECHES.  THE COURT
PURPORTS TO LEAVE THESE QUESTIONS FOR ANOTHER DAY, BUT I AM AWARE OF NO
CONSTITUTIONAL PRINCIPLE WHICH PERMITS US TO HOLD THAT THE
COMMUNICATION OF IDEAS THROUGH ONE MEDIUM MAY BE CENSORED WHILE OTHER
MEDIA ARE IMMUNE.  OF COURSE EACH MEDIUM PRESENTS ITS OWN PECULIAR
PROBLEMS, BUT THEY ARE NOT OF THE KIND WHICH WOULD AUTHORIZE THE
CENSORSHIP OF ONE FORM OF COMMUNICATION AND NOT OTHERS.  I SUBMIT THAT
IN ARRIVING AT ITS DECISION THE COURT HAS INTERPRETED OUR CASES
CONTRARY TO THE INTENTION AT THE TIME OF THEIR RENDITION AND, IN
EXALTING THE CENSOR OF MOTION PICTURES, HAS ENDANGERED THE FIRST AND
FOURTEENTH AMENDMENT RIGHTS OF ALL OTHERS ENGAGED IN THE DISSEMINATION
OF IDEAS. 

NEAR V. MINNESOTA, 283 U.S. 697, WAS A LANDMARK OPINION IN THIS
AREA.  IT WAS THERE THAT CHIEF JUSTICE HUGHES SAID FOR THE COURT "THAT
LIBERTY OF THE PRESS, HISTORICALLY CONSIDERED AND TAKEN UP BY THE
FEDERAL CONSTITUTION, HAS MEANT, PRINCIPALLY ALTHOUGH NOT EXCLUSIVELY,
IMMUNITY FROM PREVIOUS RESTRAINTS OR CENSORSHIP."  ID., AT 716.  THE
DISSENTERS IN NEAR SOUGHT TO UPHOLD THE MINNESOTA STATUTE, STRUCK DOWN
BY THE COURT, ON THE GROUND THAT THE STATUTE DID "NOT AUTHORIZE
ADMINISTRATIVE CONTROL IN ADVANCE SUCH AS WAS FORMERLY EXERCISED BY THE
LICENSERS AND CENSORS  ...  ."  ID., AT 735.  THUS, THREE DECADES AGO,
THE CONSTITUTION'S ABHORRENCE OF LICENSING OR CENSORSHIP WAS FIRST
CLEARLY ARTICULATED BY THIS COURT. 

THIS WAS NOT A TENET SELDOM CONSIDERED OR SOON FORGOTTEN.  FIVE YEARS
LATER, A UNANIMOUS COURT OBSERVED: 

"AS EARLY AS 1644, JOHN MILTON, IN AN 'APPEAL FOR THE LIBERTY OF
UNLICENSED PRINTING,' ASSAILED AN ACT OF PARLIAMENT WHICH HAD JUST BEEN
PASSED PROVIDING FOR CENSORSHIP OF THE PRESS PREVIOUS TO PUBLICATION. 
HE VIGOROUSLY DEFENDED THE RIGHT OF EVERY MAN TO MAKE PUBLIC HIS HONEST
VIEWS 'WITHOUT PREVIOUS CENSURE': AND DECLARED THE IMPOSSIBILITY OF
FINDING ANY MAN BASE ENOUGH TO ACCEPT THE OFFICE OF CENSOR AND AT THE
SAME TIME GOOD ENOUGH TO BE ALLOWED TO PERFORM ITS DUTIES."  GROSJEAN
V. AMERICAN PRESS CO., 297 U.S. 233, 245-246. 

SHORTLY THEREAFTER, A UNANIMOUS COURT ONCE MORE RECALLED THAT THE
"STRUGGLE FOR THE FREEDOM OF THE PRESS WAS PRIMARILY DIRECTED AGAINST
THE POWER OF THE LICENSOR."  LOVELL V. GRIFFIN, 303 U.S. 444, 451.  AND
TWO YEARS AFTER THIS, THE COURT FIRMLY ANNOUNCED IN SCHNEIDER V. STATE,
308 U.S. 147: 

"THE ORDINANCE IMPOSES CENSORSHIP, ABUSE OF WHICH ENGENDERED THE
STRUGGLE IN ENGLAND WHICH EVENTUATED IN THE ESTABLISHMENT OF THE
DOCTRINE OF THE FREEDOM OF THE PRESS EMBODIED IN OUR CONSTITUTION.  TO
REQUIRE A CENSORSHIP THROUGH LICENSE WHICH MAKES IMPOSSIBLE THE FREE
AND UNHAMPERED DISTRIBUTION OF PAMPHLETS STRIKES AT THE VERY HEART OF
THE CONSTITUTIONAL GUARANTEES."  ID., AT 164. 

JUST TWENTY YEARS AGO, IN THE OFT-CITED CASE OF CANTWELL V.
CONNECTICUT, 310 U.S. 296, THE COURT, AGAIN WITHOUT DISSENT, DECIDED: 

"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."  ID., AT 306. 

THIS DOCTRINE, WHICH WAS FULLY EXPLORED AND WHICH WAS THE FOCUS OF
THIS COURT'S ATTENTION ON NUMEROUS OCCASIONS, HAD BECOME AN ESTABLISHED
PRINCIPLE OF CONSTITUTIONAL LAW.  IT IS NOT TO BE DISPUTED THAT THIS
COURT HAS STATED THAT THE PROTECTION AFFORDED FIRST AMENDMENT LIBERTIES
FROM PREVIOUS RESTRAINT IS NOT ABSOLUTELY UNLIMITED.  NEAR V.
MINNESOTA, SUPRA.  BUT, LICENSING OR CENSORSHIP WAS NOT, AT ANY POINT,
CONSIDERED WITHIN THE "EXCEPTIONAL CASES" DISCUSSED IN THE OPINION IN
NEAR.  ID., AT 715-716.  AND, ONLY A FEW TERMS AGO, THE COURT, SPEAKING
THROUGH MR. JUSTICE FRANKFURTER, IN KINGSLEY BOOKS, INC., V. BROWN, 354
U.S. 436, REAFFIRMED THAT "THE LIMITATION IS THE EXCEPTION; IT IS TO BE
CLOSELY CONFINED SO AS TO PRECLUDE WHAT MAY FAIRLY BE DEEMED LICENSING
OR CENSORSHIP."  ID., AT 441. 

THE VICE OF CENSORSHIP THROUGH LICENSING AND, MORE GENERALLY, THE
PARTICULAR EVIL OF PREVIOUS RESTRAINT ON THE RIGHT OF FREE SPEECH HAVE
MANY TIMES BEEN RECOGNIZED WHEN THIS COURT HAS CAREFULLY DISTINGUISHED
BETWEEN LAWS ESTABLISHING SUNDRY SYSTEMS OF PREVIOUS RESTRAINT ON THE
RIGHT OF FREE SPEECH AND PENAL LAWS IMPOSING SUBSEQUENT PUNISHMENT ON
UTTERANCES AND ACTIVITIES NOT WITHIN THE AMBIT OF THE FIRST AMENDMENT'S
PROTECTION.  SEE NEAR V. MINNESOTA, SUPRA, AT PP. 718-719; SCHNEIDER V.
STATE, SUPRA, AT P. 164; CANTWELL V. CONNECTICUT, SUPRA, AT P. 306;
NIEMOTKO V. MARYLAND, 340 U.S. 268, 282 (CONCURRING OPINION); KUNZ V.
NEW YORK, 340 U.S. 290, 294-295. 

EXAMINATION OF THE BACKGROUND AND CIRCUMSTANCES LEADING TO THE
ADOPTION OF THE FIRST AMENDMENT REVEALS THE BASIS FOR THE COURT'S
STEADFAST OBSERVANCE OF THE PROSCRIPTION OF LICENSING, CENSORSHIP AND
PREVIOUS RESTRAINT OF SPEECH.  SUCH INQUIRY OFTEN BEGINS WITH
BLACKSTONE'S ASSERTION:  "THE LIBERTY OF THE PRESS IS INDEED ESSENTIAL
TO THE NATURE OF A FREE STATE; BUT THIS CONSISTS IN LAYING NO PREVIOUS
RESTRAINT UPON PUBLICATIONS, AND NOT IN FREEDOM FROM CENSURE FOR
CRIMINAL MATTER WHEN PUBLISHED."  4 BL. COMM. (COOLEY, 4TH ED. 1899)
151.  BLACKSTONE PROBABLY HERE REFERRED TO THE COMMON LAW'S DEFINITION
OF FREEDOM OF THE PRESS; (FN1) HE PROBABLY SPOKE OF THE SITUATION
EXISTING IN ENGLAND AFTER THE DISAPPEARANCE OF THE LICENSING SYSTEMS
BUT DURING THE EXISTENCE OF THE LAW OF CROWN LIBELS.  THERE HAS BEEN
GENERAL CRITICISM OF THE THEORY THAT BLACKSTONE'S STATEMENT WAS
EMBODIED IN THE FIRST AMENDMENT, THE OBJECTION BEING "'THAT THE MERE
EXEMPTION FROM PREVIOUS RESTRAINTS CANNOT BE ALL THAT IS SECURED BY THE
CONSTITUTIONAL PROVISIONS'; AND THAT 'THE LIBERTY OF THE PRESS MIGHT BE
RENDERED A MOCKERY AND A DELUSION, AND THE PHRASE ITSELF A BY-WORD, IF,
WHILE EVERY MAN WAS AT LIBERTY TO PUBLISH WHAT HE PLEASED, THE PUBLIC
AUTHORITIES MIGHT NEVERTHELESS PUNISH HIM FOR HARMLESS PUBLICATIONS.' 
2 COOLEY, CONST. LIM., 8TH ED., P. 885."  NEAR V. MINNESOTA, SUPRA, AT
P. 715; GROSJEAN V. AMERICAN PRESS CO., SUPRA, AT P. 248.  THE
OBJECTION HAS BEEN THAT BLACKSTONE'S DEFINITION IS TOO NARROW; IT HAD
BEEN GENERALLY CONCEDED THAT THE PROTECTION OF THE FIRST AMENDMENT
EXTENDS AT LEAST TO THE INTERDICTION OF LICENSING AND CENSORSHIP AND TO
THE PREVIOUS RESTRAINT OF FREE SPEECH.  NEAR V. MINNESOTA, SUPRA, AT P.
715; GROSJEAN V. AMERICAN PRESS CO., SUPRA, AT P. 246; CHAFEE, FREE
SPEECH IN THE UNITED STATES, 18. 

ON JUNE 24, 1957, IN KINGSLEY BOOKS, INC., V. BROWN, SUPRA, THE COURT
TURNED A CORNER FROM THE LANDMARK OPINION IN NEAR AND FROM ONE OF THE
BASES OF THE FIRST AMENDMENT.  TODAY IT FALLS INTO FULL RETREAT. 

I HESITATE TO DISAGREE WITH THE COURT'S FORMULATION OF THE ISSUE
BEFORE US, BUT, WITH ALL DEFERENCE, I MUST INSIST THAT THE QUESTION
PRESENTED IN THIS CASE IS NOT WHETHER A MOTION PICTURE EXHIBITOR HAS A
CONSTITUTIONALLY PROTECTED, "COMPLETE AND ABSOLUTE FREEDOM TO EXHIBIT,
AT LEAST ONCE, ANY AND EVERY KIND OF MOTION PICTURE."  ANTE, P. 46. 
SURELY, THE COURT IS NOT BOUND BY THE PETITIONER'S CONCEPTION OF THE
ISSUE OR BY THE MORE EXTREME POSITIONS THAT PETITIONER MAY HAVE ARGUED
AT ONE TIME IN THE CASE.  THE QUESTION HERE PRESENTED IS WHETHER THE
CITY OF CHICAGO - OR, FOR THAT MATTER, ANY CITY, ANY STATE OR THE
FEDERAL GOVERNMENT - MAY REQUIRE ALL MOTION PICTURE EXHIBITORS TO
SUBMIT ALL FILMS TO A POLICE CHIEF, MAYOR OR OTHER ADMINISTRATIVE
OFFICIAL, FOR LICENSING AND CENSORSHIP PRIOR TO PUBLIC EXHIBITION
WITHIN THE JURISDICTION. 

THE COURT DOES NOT EVEN HAVE BEFORE IT AT ATTEMPT BY THE CITY TO
RESTRAIN THE EXHIBITION OF AN ALLEGEDLY "OBSCENE" FILM, SEE ROTH V.
UNITED STATES, 354 U.S. 476.  NOR DOES THE CITY CONTEND THAT IT IS
SEEKING TO PROHIBIT THE SHOWING OF A FILM WHICH WILL IMPAIR THE
"SECURITY OF THE COMMUNITY LIFE" BECAUSE IT ACTS AS AN INCITEMENT TO
"VIOLENCE AND THE OVERTHROW BY FORCE OF ORDERLY GOVERNMENT."  SEE NEAR
V. MINNESOTA, SUPRA, AT P. 716.  THE PROBLEM BEFORE US IS NOT WHETHER
THE CITY MAY FORBID THE EXHIBITION OF A MOTION PICTURE, WHICH, BY ITS
VERY SHOWING, MIGHT IN SOME WAY "INFLICT INJURY OR TEND TO INCITE AN
IMMEDIATE BREACH OF THE PEACE."  SEE CHAPLINSKY V. NEW HAMPSHIRE, 315
U.S. 568, 572. 

LET IT BE COMPLETELY CLEAR WHAT THE COURT'S DECISION DOES.  IT GIVES
OFFICIAL LICENSE TO THE CENSOR, APPROVING A GRANT OF POWER TO CITY
OFFICIALS TO PREVENT THE SHOWING OF ANY MOVING PICTURE THESE OFFICIALS
DEEM UNWORTHY OF A LICENSE.  IT THUS GIVES FORMAL SANCTION TO
CENSORSHIP IN ITS PUREST AND MOST FAR-REACHING FORM, (FN2) TO A
CLASSICAL PLAN OF LICENSING THAT, IN OUR COUNTRY, MOST CLOSELY
APPROACHES THE ENGLISH LICENSING LAWS OF THE SEVENTEENTH CENTURY WHICH
WERE COMMONLY USED TO SUPPRESS DISSENT IN THE MOTHER COUNTRY AND IN THE
COLONIES.  EMERSON, THE DOCTRINE OF PRIOR RESTRAINT, 20 LAW & CONTEMP. 
PROB., 648, 667.  THE COURT TREATS MOTION PICTURES, FOOD FOR THE MIND,
HELD TO BE WITHIN THE SHIELD OF THE FIRST AMENDMENT, JOSEPH BURSTYN,
INC., V. WILSON, 343 U.S. 495, LITTLE DIFFERENTLY THAN IT WOULD TREAT
EDIBLES.  SEE SMITH V. CALIFORNIA, 361 U.S. 147, 152.  (FN3) ONLY A FEW
DAYS AGO, THE COURT, SPEAKING THROUGH MR. JUSTICE STEWART, NOTED IN
SHELTON V. TUCKER, 364 U.S. 479, 488: 

"IN A SERIES OF DECISIONS THIS COURT HAS HELD THAT, EVEN THOUGH THE
GOVERNMENTAL PURPOSE BE LEGITIMATE AND SUBSTANTIAL, THAT PURPOSE CANNOT
BE PURSUED BY MEANS THAT BROADLY STIFLE FUNDAMENTAL PERSONAL LIBERTIES
WHEN THE END CAN BE MORE NARROWLY ACHIEVED.  THE BREADTH OF LEGISLATIVE
ABRIDGMENT MUST BE VIEWED IN THE LIGHT OF LESS DRASTIC MEANS FOR
ACHIEVING THE SAME BASIC PURPOSE." 

HERE, THE COURT IGNORES THIS CONSIDERED PRINCIPLE AND
INDISCRIMINATELY CASTS THE NET OF CONTROL TOO BROADLY.  SEE NIEMOTKO V.
MARYLAND, SUPRA, AT P. 282 (CONCURRING OPINION).  BY ITS DECISION, THE
COURT GIVES ITS ASSENT TO UNLIMITED CENSORSHIP OF MOVING PICTURES
THROUGH A LICENSING SYSTEM, DESPITE THE FACT THAT CHICAGO HAS CHOSEN
THIS MOST OBJECTIONABLE COURSE TO ATTAIN ITS GOALS WITHOUT ANY APPARENT
ATTEMPT TO DEVISE OTHER MEANS SO AS NOT TO INTRUDE ON THE
CONSTITUTIONALLY PROTECTED LIBERTIES OF SPEECH AND PRESS. 

PERHAPS THE MOST STRIKING DEMONSTRATION OF HOW FAR THE COURT DEPARTS
FROM ITS HOLDINGS IN NEAR AND SUBSEQUENT CASES MAY BE MADE BY EXAMINING
THE VARIOUS SCHEMES THAT IT HAS PREVIOUSLY DETERMINED TO BE VIOLATIVE
OF THE FIRST AND FOURTEENTH AMENDMENTS' GUARANTY. 

A REMARKABLE PARALLEL TO THE CENSORSHIP PLAN NOW BEFORE THE COURT,
ALTHOUGH ONE LESS OFFENSIVE TO THE FIRST AMENDMENT, IS FOUND IN THE
NEAR CASE ITSELF.  THE MINNESOTA STATUTE THERE UNDER ATTACK DID NOT
REQUIRE THAT ALL PUBLICATIONS BE APPROVED BEFORE DISTRIBUTION.  THAT
STATUTE ONLY PROVIDED THAT A PERSON MAY BE ENJOINED BY A COURT FROM
PUBLISHING A NEWSPAPER WHICH WAS "MALICIOUS, SCANDALOUS AND
DEFAMATORY."  ID., AT 702.  THE INJUNCTION IN THAT CASE WAS ISSUED ONLY
AFTER NEAR HAD ALLEGEDLY PUBLISHED NINE SUCH NEWSPAPERS.  THE STATUTE
PERMITTED ISSUANCE OF AN INJUNCTION ONLY ON PROOF THAT, WITHIN THE
PRIOR THREE MONTHS, SUCH AN OFFENSIVE NEWSPAPER HAD ALREADY BEEN
PUBLISHED.  NEAR WAS NOT PREVENTED "FROM OPERATING A NEWSPAPER IN
HARMONY WITH THE PUBLIC WELFARE."  IBID.  IF THE STATE COURT FOUND THAT
NEAR'S SUBSEQUENT PUBLICATION CONFORMED TO THIS STANDARD, NEAR WOULD
NOT HAVE BEEN IN CONTEMPT.  BUT, THE COURT THERE FOUND THAT THIS SYSTEM
OF CENSORSHIP BY A STATE COURT, USED ONLY AFTER IT HAD ALREADY BEEN
DETERMINED THAT THE PUBLISHER HAD PREVIOUSLY VIOLATED THE STANDARD, HAD
TO FALL BEFORE THE FIRST AND THE FOURTEENTH AMENDMENTS.  IT WOULD SEEM
THAT, A FORTIORI, THE PRESENT SYSTEM MUST ALSO FALL. 

THE CASE OF GROSJEAN V. AMERICAN PRESS CO., SUPRA, PROVIDES ANOTHER
FORCEFUL ILLUSTRATION.  THE COURT HELD THERE THAT A LICENSE TAX OF TWO
PERCENT ON THE GROSS RECEIPTS FROM ADVERTISING OF NEWSPAPERS AND
PERIODICALS HAVING A CIRCULATION OF OVER 20,000 A WEEK WAS A FORM OF
PRIOR RESTRAINT AND THEREFORE INVALID.  CERTAINLY THIS WOULD SEEM MUCH
LESS AN INFRINGEMENT ON THE LIBERTIES OF SPEECH AND PRESS PROTECTED BY
THE FIRST AND FOURTEENTH AMENDMENTS THAN THE CLASSIC SYSTEM OF
CENSORSHIP WE NOW HAVE BEFORE US.  IT WAS HELD, IN GROSJEAN, THAT THE
IMPOSITION OF THE TAX WOULD CURTAIL THE AMOUNT OF REVENUE REALIZED FROM
ADVERTISING AND THEREFORE OPERATE AS A RESTRAINT ON PUBLICATION.  THE
LICENSE TAX IN GROSJEAN IS ANALOGOUS TO THE LICENSE FEE IN THE CASE AT
BAR, A FEE TO WHICH PETITIONER RAISES NO OBJECTION.  IT WAS ALSO HELD,
IN GROSJEAN, THAT THE TAX HAD A "DIRECT TENDENCY  ...  TO RESTRICT
CIRCULATION," ID., AT 244-245, BECAUSE IT WAS IMPOSED ONLY ON
PUBLICATIONS WITH A WEEKLY CIRCULATION OF 20,000 OR MORE; THAT "IF IT
WERE INCREASED TO A HIGH DEGREE  ... IT MIGHT WELL RESULT IN DESTROYING
BOTH ADVERTISING AND CIRCULATION."  ID., AT 245.  THESE WERE THE EVILS
CALLING FOR REVERSAL IN GROSJEAN.  I SHOULD THINK THAT THESE EVILS ARE
OF MINOR IMPORT IN COMPARISON TO THE EVILS CONSEQUENT TO THE LICENSING
SYSTEM WHICH THE COURT HERE APPROVES.    IN HAGUE V. C.I.O., 307 U.S.
496, A CITY ORDINANCE REQUIRED THAT A PERMIT BE OBTAINED FOR PUBLIC
PARADES OR PUBLIC ASSEMBLY.  THE PERMIT COULD "ONLY BE REFUSED FOR THE
PURPOSE OF PREVENTING RIOTS, DISTURBANCES OR DISORDERLY ASSEMBLAGE." 
ID., AT 502.  MR. JUSTICE ROBERTS' OPINION SAID OF THE ORDINANCE: 

"IT ENABLES THE DIRECTOR OF SAFETY TO REFUSE A PERMIT ON HIS MERE
OPINION THAT SUCH REFUSAL WILL PREVENT 'RIOTS, DISTURBANCES OR
DISORDERLY ASSEMBLAGE.'  IT CAN THUS, AS THE RECORD DISCLOSES, BE MADE
THE INSTRUMENT OF ARBITRARY SUPPRESSION OF FREE EXPRESSION OF VIEWS ON
NATIONAL AFFAIRS, FOR THE PROHIBITION OF ALL SPEAKING WILL UNDOUBTEDLY
'PREVENT' SUCH EVENTUALITIES."  ID., AT 516. 

MAY ANYTHING LESS BE SAID OF CHICAGO'S MOVIE CENSORSHIP PLAN? 

THE QUESTION BEFORE THE COURT IN SCHNEIDER V. STATE, SUPRA, CONCERNED
THE CONSTITUTIONAL VALIDITY OF A TOWN ORDINANCE REQUIRING A LICENSE FOR
THE DISTRIBUTION OF CIRCULARS.  THE POLICE CHIEF WAS PERMITTED TO
REFUSE THE LICENSE IF THE APPLICATION FOR IT OR FURTHER INVESTIGATION
SHOWED "THAT THE CANVASSER IS NOT OF GOOD CHARACTER OR IS CANVASSING
FOR A PROJECT NOT FREE FROM FRAUD  ...  ."  ID., AT 158.  THE COURT
SAID OF THAT ORDINANCE: 

"IT BANS UNLICENSED COMMUNICATION OF ANY VIEWS OR THE ADVOCACY OF ANY
CAUSE FROM DOOR TO DOOR, AND PERMITS CANVASSING ONLY SUBJECT TO THE
POWER OF A POLICE OFFICER TO DETERMINE, AS A CENSOR, WHAT LITERATURE
MAY BE DISTRIBUTED FROM HOUSE TO HOUSE AND WHO MAY DISTRIBUTE IT.  THE
APPLICANT MUST SUBMIT TO THAT OFFICER'S JUDGMENT EVIDENCE AS TO HIS
GOOD CHARACTER AND AS TO THE ABSENCE OF FRAUD IN THE 'PROJECT' HE
PROPOSES TO PROMOTE OR THE LITERATURE HE INTENDS TO DISTRIBUTE, AND
MUST UNDERGO A BURDENSOME AND INQUISITORIAL EXAMINATION, INCLUDING
PHOTOGRAPHING AND FINGERPRINTING.  IN THE END, HIS LIBERTY TO
COMMUNICATE WITH THE RESIDENTS OF THE TOWN AT THEIR HOMES DEPENDS UPON
THE EXERCISE OF THE OFFICER'S DISCRETION."  ID., AT 163-164. 

I BELIEVE THAT THE LICENSING PLAN AT BAR IS FATALLY DEFECTIVE BECAUSE
OF THIS PRECISE OBJECTION. 

A STUDY OF THE OPINION IN CANTWELL V. CONNECTICUT, SUPRA, FURTHER
REVEALS THE COURT'S SHARP DIVERGENCE TODAY FROM SERIOUSLY DELIBERATED
PRECEDENT.  THE STATUTE IN CANTWELL FORBADE SOLICITATION FOR ANY
ALLEGED RELIGIOUS, CHARITABLE OR PHILANTHROPIC CAUSE UNLESS THE
SECRETARY OF THE PUBLIC WELFARE COUNCIL DETERMINED THAT THE "CAUSE WAS
A RELIGIOUS ONE OR WAS A BONA FIDE OBJECT OF CHARITY OR PHILANTHROPY
AND CONFORMED TO REASONABLE STANDARDS OF EFFICIENCY AND INTEGRITY  ...
."  ID., AT 302.  SPEAKING OF THE SECRETARY OF THE PUBLIC WELFARE
COUNCIL, THE COURT HELD: 

"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., AT 305. 

DOES THE COURT TODAY WISH TO DISTINGUISH BETWEEN THE PROTECTION
ACCORDED TO RELIGION BY THE FIRST AND FOURTEENTH AMENDMENTS AND THE
PROTECTION ACCORDED TO SPEECH BY THOSE SAME PROVISIONS?  I CANNOT
PERCEIVE THE DISTINCTION BETWEEN THIS CASE AND CANTWELL.  CHICAGO SAYS
THAT IT FACES A PROBLEM - OBSCENE AND INCENDIOUS FILMS.  CONNECTICUT
FACED THE PROBLEM OF FRAUDULENT SOLICITATION.  CONSTITUTIONALLY, IS
THERE A DIFFERENCE?  SEE ALSO LARGENT V. TEXAS, 318 U.S. 418. 

IN THOMAS V. COLLINS, 323 U.S. 516, THIS COURT HELD THAT A STATE
STATUTE REQUIRING A LABOR UNION ORGANIZER TO OBTAIN AN ORGANIZER'S CARD
WAS INCOMPATIBLE WITH THE FREE SPEECH AND FREE ASSEMBLY MANDATES OF THE
FIRST AND FOURTEENTH AMENDMENTS.  THE STATUTE DEMANDED NOTHING MORE
THAN THAT THE LABOR UNION ORGANIZER REGISTER, STATING HIS NAME, HIS
UNION AFFILIATIONS AND DESCRIBING HIS CREDENTIALS.  THIS INFORMATION
HAVING BEEN FILED, THE ISSUANCE OF THE ORGANIZER'S CARD WAS SUBJECT TO
NO FURTHER CONDITIONS.  THE STATE'S OBVIOUS INTEREST IN ACQUIRING THIS
PERTINENT INFORMATION WAS FELT NOT TO CONSTITUTE AN EXCEPTIONAL
CIRCUMSTANCE TO JUSTIFY THE RESTRAINT IMPOSED BY THE STATUTE.  IT SEEMS
CLEAR TO ME THAT THE CHICAGO ORDINANCE IN THIS CASE PRESENTS A GREATER
DANGER OF STIFLING SPEECH. 

THE TWO SOUND TRUCK CASES ARE FURTHER POIGNANT EXAMPLES OF WHAT HAD
BEEN THIS COURT'S STEADFAST ADHERENCE TO THE OPPOSITION OF PREVIOUS
RESTRAINTS ON FIRST AMENDMENT LIBERTIES.  IN SAIA V. NEW YORK, 334 U.S.
558, IT WAS HELD THAT A CITY ORDINANCE WHICH FORBADE THE USE OF SOUND
AMPLIFICATION DEVICES IN PUBLIC PLACES WITHOUT THE PERMISSION OF THE
CHIEF OF POLICE WAS UNCONSTITUTIONALLY VOID ON ITS FACE SINCE IT
IMPOSED A PREVIOUS RESTRAINT ON PUBLIC SPEECH.  TWO YEARS LATER, THE
COURT UPHELD A DIFFERENT CITY'S ORDINANCE MAKING UNLAWFUL THE USE OF
"ANY INSTRUMENT OF ANY KIND OR CHARACTER WHICH EMITS THEREFROM LOUD AND
RAUCOUS NOISES AND IS ATTACHED TO AND UPON ANY VEHICLE OPERATED OR
STANDING UPON  ...  STREETS OR PUBLIC PLACES  ...  ."  KOVACS V.
COOPER, 336 U.S. 77, 78.  ONE OF THE GROUNDS BY WHICH THE OPINION OF
MR. JUSTICE REED DISTINGUISHED SAIA WAS THAT THE KOVACS ORDINANCE
IMPOSED NO PREVIOUS RESTRAINT.  ID., AT 82.  MR. JUSTICE JACKSON CHOSE
TO DIFFERENTIATE SOUND TRUCKS FROM THE "MOVING PICTURE SCREEN, THE
RADIO, THE NEWSPAPER, THE HANDBILL ...  AND THE STREET CORNER ORATOR
...  ."  ID., AT 97 (CONCURRING OPINION).  HE FURTHER STATED THAT "NO
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY
REASON OF INFRINGEMENT OF FREE SPEECH ARISES UNLESS SUCH REGULATION OR
PROHIBITION UNDERTAKES TO CENSOR THE CONTENTS OF THE BROADCASTING." 
IBID.  NEEDLESS TO REPEAT, THIS IS THE VIOLATION THE COURT SANCTIONS
TODAY. 

ANOTHER EXTREMELY SIMILAR, BUT AGAIN LESS OBJECTIONABLE, SITUATION
WAS BROUGHT TO THE COURT IN KUNZ V. NEW YORK, 340 U.S. 290.  THERE, A
CITY ORDINANCE PROSCRIBED THE RIGHT OF CITIZENS TO SPEAK ON RELIGIOUS
MATTERS IN THE CITY STREETS WITHOUT AN ANNUAL PERMIT.  KUNZ HAD
PREVIOUSLY HAD HIS PERMIT REVOKED BECAUSE "HE HAD RIDICULED AND
DENOUNCED OTHER RELIGIOUS BELIEFS IN HIS MEETINGS."  ID., AT 292. 
(FN4)  KUNZ WAS ARRESTED FOR SUBSEQUENTLY SPEAKING IN THE CITY STREETS
WITHOUT A PERMIT.  THE COURT REVERSED KUNZ' CONVICTION HOLDING: 

"WE HAVE HERE, THEN, AN ORDINANCE WHICH GIVES AN ADMINISTRATIVE
OFFICIAL DISCRETIONARY POWER TO CONTROL IN ADVANCE THE RIGHT OF
CITIZENS TO SPEAK ON RELIGIONS MATTERS ON THE STREETS OF NEW YORK.  AS
SUCH, THE ORDINANCE IS CLEARLY INVALID AS A PRIOR RESTRAINT ON THE
EXERCISE OF FIRST AMENDMENT RIGHTS."  ID., AT 293. 

THE CHICAGO CENSORSHIP AND LICENSING PLAN IS EFFECTIVELY NO
DIFFERENT.  THE ONLY MEANINGFUL DISTINCTION BETWEEN KUNZ AND THE CASE
AT BAR APPEARS TO BE IN THE DISPOSITION OF THEM BY THE COURT. 

THE ORDINANCE BEFORE US IN STAUB V. CITY OF BAXLEY, 355 U.S. 313,
MADE UNLAWFUL THE SOLICITATION, WITHOUT A PERMIT, OF MEMBERS FOR AN
ORGANIZATION WHICH REQUIRES THE PAYMENT OF MEMBERSHIP DUES.  THE
ORDINANCE STATED THAT "IN PASSING UPON SUCH APPLICATION THE MAYOR AND
COUNCIL SHALL CONSIDER THE CHARACTER OF THE APPLICANT, THE NATURE OF
THE BUSINESS OF THE ORGANIZATION FOR WHICH MEMBERS ARE DESIRED TO BE
SOLICITED, AND ITS EFFECTS UPON THE GENERAL WELFARE OF CITIZENS OF THE
CITY OF BAXLEY."  ID., AT 315.  MR. JUSTICE WHITTAKER, SPEAKING FOR THE
COURT, STATED "THAT THE ORDINANCE IS INVALID ON ITS FACE BECAUSE IT
MAKES ENJOYMENT OF THE CONSTITUTIONALLY GUARANTEED FREEDOM OF SPEECH
CONTINGENT UPON THE WILL OF THE MAYOR AND COUNCIL OF THE CITY AND
THEREBY CONSTITUTES A PRIOR RESTRAINT UPON, AND ABRIDGES, THAT
FREEDOM."  ID., AT 321.  IN STAUB, THE ORDINANCE REQUIRED A PERMIT FOR
SOLICITATION; IN THE CASE DECIDED TODAY, THE ORDINANCE REQUIRES A
PERMIT FOR THE EXHIBITION OF MOVIES.  IF THIS IS A VALID DISTINCTION,
IT HAS NOT BEEN SO REVEALED.  IN STAUB, THE PERMIT WAS TO BE GRANTED ON
THE BASIS OF CERTAIN INDEFINITE STANDARDS; IN THE CASE DECIDED TODAY,
NOTHING DIFFERENT MAY BE SAID. 

AS THE COURT RECALLS, IN JOSEPH BURSTYN, INC., V. WILSON, 343 U.S.
495, 502, IT WAS HELD THAT MOTION PICTURES COME "WITHIN THE FREE SPEECH
AND FREE PRESS GUARANTY OF THE FIRST AND FOURTEENTH AMENDMENTS." 
ALTHOUGH THE COURT FOUND IT UNNECESSARY TO DECIDE "WHETHER A STATE MAY
CENSOR MOTION PICTURES UNDER A CLEARLY DRAWN STATUTE DESIGNED AND
APPLIED TO PREVENT THE SHOWING OF OBSCENE FILMS," ID., AT 506, MR.
JUSTICE CLARK STATED, IN THE COURT'S OPINION, QUITE ACCURATELY: 

"BUT THE BASIC PRINCIPLES OF FREEDOM OF SPEECH AND THE PRESS, LIKE
THE FIRST AMENDMENT'S COMMAND, DO NOT VARY.  THOSE PRINCIPLES, AS THEY
HAVE FREQUENTLY BEEN ENUNCIATED BY THIS COURT, MAKE FREEDOM OF
EXPRESSION THE RULE.  THERE IS NO JUSTIFICATION IN THIS CASE FOR MAKING
AN EXCEPTION TO THAT RULE. 

"THE STATUTE INVOLVED HERE DOES NOT SEEK TO PUNISH, AS A PAST
OFFENSE, SPEECH OR WRITING FALLING WITHIN THE PERMISSIBLE SCOPE OF
SUBSEQUENT PUNISHMENT.  ON THE CONTRARY, NEW YORK REQUIRES THAT
PERMISSION TO COMMUNICATE IDEAS BE OBTAINED IN ADVANCE FROM STATE
OFFICIALS WHO JUDGE THE CONTENT OF THE WORDS AND PICTURE SOUGHT TO BE
COMMUNICATED.  THIS COURT RECOGNIZED MANY YEARS AGO THAT SUCH A
PREVIOUS RESTRAINT IS A FORM OF INFRINGEMENT UPON FREEDOM OF EXPRESSION
TO BE ESPECIALLY CONDEMNED.  NEAR V. MINNESOTA EX REL. OLSON, 283 U.S.
697 (1931).  THE COURT THERE RECOUNTED THE HISTORY WHICH INDICATES THAT
A MAJOR PURPOSE OF THE FIRST AMENDMENT GUARANTY OF A FREE PRESS WAS TO
PREVENT PRIOR RESTRAINTS UPON PUBLICATION, ALTHOUGH IT WAS CAREFULLY
POINTED OUT THAT THE LIBERTY OF THE PRESS IS NOT LIMITED TO THAT
PROTECTION.  IT WAS FURTHER STATED THAT 'THE PROTECTION EVEN AS TO
PREVIOUS RESTRAINT IS NOT ABSOLUTELY UNLIMITED.  BUT THE LIMITATION HAS
BEEN RECOGNIZED ONLY IN EXCEPTIONAL CASES.'  ID., AT 716.  IN THE LIGHT
OF THE FIRST AMENDMENT'S HISTORY AND OF THE NEAR DECISION, THE STATE
HAS A HEAVY BURDEN TO DEMONSTRATE THAT THE LIMITATION CHALLENGED HERE
PRESENTS SUCH AN EXCEPTIONAL CASE."  ID., AT 503-504. 

HERE, ONCE MORE, THE COURT RECOGNIZED THAT THE FIRST AMENDMENT'S
REJECTION OF PRIOR CENSORSHIP THROUGH LICENSING AND PREVIOUS RESTRAINT
IS AN INHERENT AND BASIC PRINCIPLE OF FREEDOM OF SPEECH AND THE PRESS. 
NOW, THE COURT STRAYS FROM THAT PRINCIPLE; IT STRIKES DOWN THAT TENET
WITHOUT REQUIRING ANY DEMONSTRATION THAT THIS IS AN "EXCEPTIONAL CASE,"
WHATEVER THAT MIGHT BE, AND WITHOUT ANY INDICATION THAT CHICAGO HAS
SUSTAINED THE "HEAVY BURDEN" WHICH WAS SUPPOSED TO HAVE BEEN PLACED
UPON IT.  CLEARLY, THIS IS NEITHER AN EXCEPTIONAL CASE NOR HAS CHICAGO
SUSTAINED ANY BURDEN. 

PERHAPS TODAY'S SURRENDER WAS FORECAST BY KINGSLEY BOOKS, INC., V.
BROWN, SUPRA.  BUT, THAT WAS OBVIOUSLY NOT THIS CASE, AND ACCEPTING
ARGUENDO THE CORRECTNESS OF THAT DECISION, I BELIEVE THAT IT LEADS TO A
RESULT CONTRARY TO THAT REACHED TODAY.  THE STATUTE IN KINGSLEY
AUTHORIZED "THE CHIEF EXECUTIVE, OR LEGAL OFFICER, OF A MUNICIPALITY TO
INVOKE A 'LIMITED INJUNCTIVE REMEDY,' UNDER CLOSELY DEFINED PROCEDURAL
SAFEGUARDS, AGAINST THE SALE AND DISTRIBUTION OF WRITTEN AND PRINTED
MATTER FOUND AFTER DUE TRIAL BY A COURT TO BE OBSCENE  ...  ."  ID., AT
437.  THE CHICAGO SCHEME HAS NO PROCEDURAL SAFEGUARDS; THERE IS NO
TRIAL OF THE ISSUE BEFORE THE BLANKET INJUNCTION AGAINST EXHIBITION
BECOMES EFFECTIVE.  IN KINGSLEY, THE GROUNDS FOR THE RESTRAINT WERE
THAT THE WRITTEN OR PRINTED MATTER WAS "OBSCENE, LEWD, LASCIVIOUS,
FILTHY, INDECENT, OR DISGUSTING  ... OR IMMORAL  ...  ."  ID., AT 438. 
THE CHICAGO OBJECTIVE IS TO CAPTURE MUCH MORE.  THE KINGSLEY STATUTE
REQUIRED THE EXISTENCE OF SOME CAUSE TO BELIEVE THAT THE PUBLICATION
WAS OBSCENE BEFORE THE PUBLICATION WAS PUT ON TRIAL.  THE CHICAGO
ORDINANCE REQUIRES NO SUCH SHOWING. 

THE BOOKLETS ENJOINED FROM DISTRIBUTION IN KINGSLEY WERE CONCEDEDLY
OBSCENE.  (FN5)  THERE IS NO INDICATION THAT THIS IS TRUE OF THE MOVING
PICTURE HERE.  THIS WAS TREATED AS A PARTICULARLY CRUCIAL DISTINCTION. 
THUS, THE COURT HAS SUGGESTED THAT, IN TIMES OF NATIONAL EMERGENCY, THE
GOVERNMENT MIGHT IMPOSE A PRIOR RESTRAINT UPON "THE PUBLICATION OF THE
SAILING DATES OF TRANSPORTS OR THE NUMBER AND LOCATION OF TROOPS." 
NEAR V. MINNESOTA, SUPRA, P. 716; CF. EX PARTE MILLIGAN, 71 U.S. 2. 
BUT, SURELY THIS IS NOT TO SUGGEST THAT THE GOVERNMENT MIGHT REQUIRE
THAT ALL NEWSPAPERS BE SUBMITTED TO A CENSOR IN ORDER TO ASSIST IT IN
PREVENTING SUCH INFORMATION FROM REACHING PRINT.  YET IN THIS CASE THE
COURT GIVES ITS BLESSING TO THE CENSORSHIP OF ALL MOTION PICTURES IN
ORDER TO PREVENT THE EXHIBITION OF THOSE IT FEELS TO BE
CONSTITUTIONALLY UNPROTECTED. 

THE STATUTE IN KINGSLEY SPECIFIED THAT THE PERSON SOUGHT TO BE
ENJOINED WAS TO BE ENTITLED TO A TRIAL OF THE ISSUES WITHIN ONE DAY
AFTER JOINDER AND A DECISION WAS TO BE RENDERED BY THE COURT WITHIN TWO
DAYS OF THE CONCLUSION OF THE TRIAL.  THE CHICAGO PLAN MAKES NO
PROVISION FOR PROMPT JUDICIAL DETERMINATION.  IN KINGSLEY, THE PERSON
ENJOINED HAD AVAILABLE THE DEFENSE THAT THE WRITTEN OR PRINTED MATTER
WAS NOT OBSCENE IF AN ATTEMPT WAS MADE TO PUNISH HIM FOR DISOBEDIENCE
OF THE INJUNCTION.  THE CHICAGO ORDINANCE ADMITS NO DEFENSE IN A
PROSECUTION FOR FAILURE TO PROCURE A LICENSE OTHER THAN THAT THE MOTION
PICTURE WAS SUBMITTED TO THE CENSOR AND A LICENSE WAS OBTAINED. 
FINALLY, THE COURT IN KINGSLEY PAINSTAKINGLY ATTEMPTED TO ESTABLISH
THAT THAT STATUTE, IN ITS EFFECTIVE OPERATION, WAS NO MORE A PREVIOUS
RESTRAINT ON, OR INTERFERENCE WITH, THE LIBERTY OF SPEECH AND PRESS
THAN A STATUTE IMPOSING CRIMINAL PUNISHMENT FOR THE PUBLICATION OF
PORNOGRAPHY.  IN EACH SITUATION, IT CONTENDED, THE PUBLICATION MAY HAVE
PASSED INTO THE HANDS OF THE PUBLIC.  OF COURSE, THIS ARGUMENT IS
INADMISSIBLE IN THIS CASE AND THE COURT DOES NOT PURPORT TO ADVANCE
IT. 

IT WOULD SEEM IDLE TO SUPPOSE THAT THE COURT TODAY IS UNAWARE OF THE
EVILS OF THE CENSOR'S BASIC AUTHORITY, OF THE MISCHIEF OF THE SYSTEM
AGAINST WHICH SO MANY GREAT MEN HAVE WAGED STUBBORN AND OFTEN
PRECARIOUS WARFARE FOR CENTURIES, SEE GROSJEAN V. AMERICAN PRESS CO.,
SUPRA, AT P. 247, OF THE SCHEME THAT IMPEDES ALL COMMUNICATION BY
HANGING THREATENINGLY OVER CREATIVE THOUGHT.  (FN6)  BUT THE COURT
DISMISSES ALL OF THIS SIMPLY BY OPINING THAT "THE PHRASE 'PRIOR
RESTRAINT' IS NOT A SELF-WIELDING SWORD.  NOR CAN IT SERVE AS A
TALISMANIC TEST."  ANTE, P. 49.  I MUST INSIST THAT "A PRAGMATIC
ASSESSMENT OF ITS OPERATION," KINGSLEY BOOKS, INC., V. BROWN, SUPRA, AT
P. 442, LUCIDLY PORTRAYS THAT THE SYSTEM THAT THE COURT SANCTIONS TODAY
IS INHERENTLY BAD.  ONE NEED NOT DISAGREE WITH THE COURT THAT CHICAGO
HAS CHOSEN THE MOST EFFECTIVE MEANS OF SUPPRESSING OBSCENITY. 
CENSORSHIP HAS BEEN SO RECOGNIZED FOR CENTURIES.  BUT, THIS IS NOT TO
SAY THAT THE CHICAGO PLAN, THE OLD, ABHORRENT ENGLISH SYSTEM OF
CENSORSHIP THROUGH LICENSING, IS A PERMISSIBLE FORM OF PROHIBITING
UNPROTECTED SPEECH.  THE INQUIRY, AS STATED BY THE COURT BUT NEVER
RESOLVED, IS WHETHER THIS FORM OF PROHIBITION RESULTS IN "UNREASONABLE
STRICTURES ON INDIVIDUAL LIBERTY," ANTE, P. 50; (FN7) WHETHER
LICENSING, AS A PREREQUISITE TO EXHIBITION, IS BARRED BY THE FIRST AND
FOURTEENTH AMENDMENTS. 

A MOST DISTINGUISHED ANTAGONIST OF CENSORSHIP, IN "A PLEA FOR
UNLICENSED PRINTING," HAS SAID: 

"IF HE (THE CENSOR) BE OF SUCH WORTH AS BEHOOVS HIM, THERE CANNOT BE
A MORE TEDIOUS AND UNPLEASING JOURNEY-WORK, A GREATER LOSS OF TIME
LEVIED UPON HIS HEAD, THEN TO BE MADE THE PERPETUALL READER OF UNCHOSEN
BOOKS AND PAMPHLETS  ...  WE MAY EASILY FORSEE WHAT KIND OF LICENSERS
WE ARE TO EXPECT HEREAFTER, EITHER IGNORANT, IMPERIOUS, AND REMISSE, OR
BASELY PECUNIARY."  AREOPAGITICA, IN THE COMPLETE POETRY AND SELECTED
PROSE OF JOHN MILTON (MODERN LIBRARY COLLEGE ED. 1950), 677, AT 700. 

THERE IS NO SIGN THAT MILTON'S FEAR OF THE CENSOR WOULD BE DISPELLED
IN TWENTIETH CENTURY AMERICA.   THE CENSOR IS BEHOLDEN TO THOSE WHO
SPONSORED THE CREATION OF HIS OFFICE, TO THOSE WHO ARE MOST RADICALLY
PREOCCUPIED WITH THE SUPPRESSION OF COMMUNICATION.  THE CENSOR'S
FUNCTION IS TO RESTRICT AND TO RESTRAIN; HIS DECISIONS ARE INSULATED
FROM THE PRESSURES THAT MIGHT BE BROUGHT TO BEAR BY PUBLIC SENTIMENT IF
THE PUBLIC WERE GIVEN AN OPPORTUNITY TO SEE THAT WHICH THE CENSOR HAS
CURBED. 

THE CENSOR PERFORMS FREE FROM ALL OF THE PROCEDURAL SAFEGUARDS
AFFORDED LITIGANTS IN A COURT OF LAW.  SEE KINGSLEY BOOKS, INC., V.
BROWN, SUPRA, AT P. 437; CF. NEAR V. MINNESOTA, SUPRA, AT P. 713;
CANTWELL V. CONNECTICUT, SUPRA, AT P. 306.  THE LIKELIHOOD OF A FAIR
AND IMPARTIAL TRIAL DISAPPEARS WHEN THE CENSOR IS BOTH PROSECUTOR AND
JUDGE.  THERE IS A COMPLETE ABSENCE OF RULES OF EVIDENCE; THE FACT IS
THAT THERE IS USUALLY NO EVIDENCE AT ALL AS THE SYSTEM AT BAR VIVIDLY
ILLUSTRATES.  (FN8) HOW DIFFERENT FROM A JUDICIAL PROCEEDING WHERE A
FULL CASE IS PRESENTED BY THE LITIGANTS.  THE INEXISTENCE OF A JURY TO
DETERMINE CONTEMPORARY COMMUNITY STANDARDS IS A VITAL FLAW.  (FN9)  SEE
KINGSLEY BOOKS, INC., V. BROWN, SUPRA, AT PP. 447-448 (DISSENTING
OPINION). 

A REVELATION OF THE EXTENT TO WHICH CENSORSHIP HAS RECENTLY BEEN USED
IN THIS COUNTRY IS INDEED ASTONISHING.  THE CHICAGO LICENSORS HAVE
BANNED NEWSREEL FILMS OF CHICAGO POLICEMEN SHOOTING AT LABOR PICKETS
AND HAVE ORDERED THE DELETION OF A SCENE DEPICTING THE BIRTH OF A
BUFFALO IN WALT DISNEY'S VANISHING PRAIRIE.  GAVZER, WHO CENSORS OUR
MOVIES?  CHICAGO MAGAZINE, FEB. 1956, PP. 35, 39.  BEFORE WORLD WAR II,
THE CHICAGO CENSOR DENIED LICENSES TO A NUMBER OF FILMS PORTRAYING AND
CRITICIZING LIFE IN NAZI GERMANY INCLUDING THE MARCH OF TIME'S INSIDE
NAZI GERMANY.  EDITORIALS, CHICAGO DAILY TIMES, JAN. 20, NOV. 18,
1938.  RECENTLY, CHICAGO REFUSED TO ISSUE A PERMIT FOR THE EXHIBITION
OF THE MOTION PICTURE ANATOMY OF A MURDER BASED UPON THE BEST-SELLING
NOVEL OF THE SAME TITLE, BECAUSE IT FOUND THE USE OF THE WORDS "RAPE"
AND "CONTRACEPTIVE" TO BE OBJECTIONABLE.  COLUMBIA PICTURES CORP. V.
CITY OF CHICAGO (D.C.N.D. ILL.), 59 C. 1058 (1959)(UNREPORTED).  THE
CHICAGO CENSOR BUREAU EXCISED A SCENE IN STREET WITH NO NAME IN WHICH A
GIRL WAS SLAPPED BECAUSE THIS WAS THOUGHT TO BE A "TOO VIOLENT"
EPISODE.  LIFE, OCT. 25, 1948, P. 60.  IT HAPPENED IN EUROPE WAS
SEVERLY CUT BY THE OHIO CENSORS WHO DELETED SCENES OF WAR ORPHANS
RESORTING TO VIOLENCE.  THE MORAL THEME OF THE PICTURE WAS THAT SUCH
CHILDREN COULD EVEN THEN BE SAVED BY LOVE, AFFECTION AND SATISFACTION
OF THEIR BASIC NEEDS FOR FOOD.  LEVY, CASE AGAINST FILM CENSORSHIP,
FILMS IN REVIEW, APR. 1950, P. 40 (PUBLISHED BY NATIONAL BOARD OF
REVIEW OF MOTION PICTURES, INC.).  THE MEMPHIS CENSORS BANNED THE
SOUTHERNER WHICH DEALT WITH POVERTY AMONG TENANT FARMERS BECAUSE "IT
REFLECTS ON THE SOUTH."  BREWSTER'S MILLIONS, AN INNOCUOUS COMEDY OF
FIFTY YEARS AGO, WAS RECENTLY FORBIDDEN IN MEMPHIS BECAUSE THE RADIO
AND FILM CHARACTER ROCHESTER, A NEGRO, WAS DEEMED "TOO FAMILIAR."  SEE
VELIE, YOU CAN'T SEE THAT MOVE:  CENSORSHIP IN ACTION, COLLIER'S, MAY
6, 1950, PP. 11, 66.  MARYLAND CENSORS RESTRICTED A POLISH DOCUMENTARY
FILM ON THE BASIS THAT IT FAILED TO PRESENT A TRUE PICTURE OF MODERN
POLAND.  LEVY, CASE AGAINST FILM CENSORSHIP, FILMS IN REVIEW, SUPRA, P.
41.  NO WAY OUT, THE STORY OF A NEGRO DOCTOR'S STRUGGLE AGAINST RACE
PREJUDICE, WAS BANNED BY THE CHICAGO CENSOR ON THE GROUND THAT "THERE'S
A POSSIBILITY IT COULD CAUSE TROUBLE."  THE PRINCIPAL OBJECTION TO THE
FILM WAS THAT THE CONCLUSION SHOWED NO RECONCILIATION BETWEEN BLACKS
AND WHITES.  THE BAN WAS LIFTED AFTER A STORM OF PROTEST AND LATER
DELETION OF A SCENE SHOWING NEGROES AND WHITES ARMING FOR A GANG
FIGHT.  N.Y. TIMES, AUG. 24, 1950, P. 31, COL. 3; AUGUST 31, 1950, P.
20, COL. 8.  MEMPHIS BANNED CURLEY BECAUSE IT CONTAINED SCENES OF WHITE
AND NEGRO CHILDREN IN SCHOOL TOGETHER.  KUPFERMAN AND O'BRIEN, MOTION
PICTURE CENSORSHIP - THE MEMPHIS BLUES, 36 CORNELL L.J. 273, 276-278. 
ATLANTA BARRED LOST BOUNDARIES, THE STORY OF A NEGRO PHYSICIAN AND HIS
FAMILY WHO "PASSED" FOR WHITE, ON THE GROUND THAT THE EXHIBITION OF
SAID PICTURE "WILL ADVERSELY AFFECT THE PEACE, MORALS AND GOOD ORDER"
IN THE CITY.  N.Y. TIMES, FEB. 5, 1950, SEC. 2, P. 5, COL. 7.  SEE
GENERALLY KUPFERMAN AND O'BRIEN, SUPRA; NOTE, 60 YALE L.J. 696 ET SEQ.;
BRIEF FOR AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE, PP. 14-15. 
WITCHCRAFT, A STUDY OF SUPERSTITION THROUGH THE AGES, WAS SUPPRESSED
FOR YEARS BECAUSE IT DEPICTED THE DEVIL AS A GENIAL RAKE WITH AMOROUS
LEANINGS, AND BECAUSE IT WAS FEARED THAT CERTAIN HISTORICAL SCENES,
PORTRAYING THE EXCESSES OF RELIGIOUS FANATICS, MIGHT OFFEND RELIGION. 
SCARFACE, THOUGHT BY SOME AS THE BEST OF THE GANGSTER FILMS, WAS HELD
UP FOR MONTHS; THEN IT WAS SO BADLY MUTILATED THAT RETAKES COSTING A
HUNDRED THOUSAND DOLLARS WERE REQUIRED TO PRESERVE CONTINUITY.  THE NEW
YORK CENSORS BANNED DAMAGED LIVES, A FILM DEALING WITH VENEREAL
DISEASE, ALTHOUGH IT TREATED A DIFFICULT THEME WITH DIGNITY AND HAD THE
SPONSORSHIP OF THE AMERICAN SOCIAL HYGIENE SOCIETY.  THE PICTURE OF
LENIN'S TOMB BEARING THE INSCRIPTION "RELGION IS THE OPIATE OF THE
PEOPLE" WAS EXCISED FROM POTEMKIN.  FROM JOAN OF ARC THE MARYLAND BOARD
ELIMINATED JOAN'S EXCLAMATION AS SHE STOOD AT THE STAKE:  "OH, GOD, WHY
HAST THOU FORSAKEN ME?" AND FROM IDIOT'S DELIGHT, THE SENTENCE:  "WE,
THE WORKERS OF THE WORLD, WILL TAKE CARE OF THAT."  PROFESSOR MAMLOCK
WAS PRODUCED IN RUSSIA AND PORTRAYED THE PERSECUTION OF THE JEWS BY
NAZIS.  THE OHIO CENSORS CONDEMNED IT AS "HARMFUL" AND CALCULATED TO
"STIR UP HATRED AND ILL WILL AND GAIN NOTHING."  IT WAS RELEASED ONLY
AFTER SUBSTANTIAL DELETIONS WERE MADE.  THE POLICE REFUSED TO PERMIT
ITS SHOWING IN PROVIDENCE, RHODE ISLAND, ON THE GROUND THAT IT WAS
COMMUNISTIC PROPAGANDA.  MILLIONS OF US, A STRONG UNION PROPAGANDA
FILM, ENCOUNTERED TROUBLE IN A NUMBER OF JURISDICTIONS.  SPANISH EARTH,
A PRO-LOYALIST DOCUMENTARY PICTURE, WAS BANNED BY THE BOARD IN
PENNSYLVANIA.  ERNST AND LINDEY, THE CENSOR MARCHES ON, 96-97, 102-103,
108-111.  DURING THE YEAR ENDING JUNE 30, 1938, THE NEW YORK BOARD
CENSORED, IN ONE WAY OR ANOTHER, OVER FIVE PERCENT OF THE MOVING
PICTURES IT REVIEWED.  ID., AT 81.  CHARLIE CHAPLIN'S SATIRE ON HITLER,
THE GREAT DICTATOR, WAS BANNED IN CHICAGO, APPARENTLY OUT OF DEFERENCE
TO ITS LARGE GERMAN POPULATION.  CHAFEE, SUPRA, AT P. 541.  OHIO AND
KANSAS BANNED NEWSREELS CONSIDERED PRO LABOR.  KANSAS ORDERED A SPEECH
BY SENATOR WHEELER OPPOSING THE BILL FOR ENLARGING THE SUPREME COURT TO
BE CUT FROM THE MARCH OF TIME AS "PARTISAN AND BIASED."  ID., AT 542. 
AN EARLY VERSION OF CARMEN WAS CONDEMNED ON SEVERAL DIFFERENT GROUNDS. 
THE OHIO CENSOR OBJECTED BECAUSE CIGARETTE-GIRLS SMOKED CIGARETTES IN
PUBLIC.  THE PENNSYLVANIA CENSOR DISAPPROVED THE DURATION OF A KISS. 
ID., AT 543.  THE NEW YORK CENSORS FORBADE THE DISCUSSION IN FILMS OF
PREGNANCY, VENEREAL DISEASE, EUGENICS, BIRTH CONTROL, ABORTION,
ILLEGITIMACY, PROSTITUTION, MISCEGENATION AND DIVORCE.  ERNST AND
LINDEY, SUPRA, AT P. 83.  A MEMBER OF THE CHICAGO CENSOR BOARD
EXPLAINED THAT SHE REJECTED A FILM BECAUSE "IT WAS IMMORAL, CORRUPT,
INDECENT, AGAINST MY  ...  RELIGIOUS PRINCIPLES."  TRANSCRIPT OF
RECORD, P. 172.  TIMES FILM CORP. V. CITY OF CHICAGO, 244 F.2D 432.  A
POLICE SERGEANT ATTACHED TO THE CENSOR BOARD EXPLAINED, "COARSE
LANGUAGE OR ANYTHING THAT WOULD BE DEROGATORY TO THE GOVERNMENT -
PROPAGANDA" IS RULED OUT OF FOREIGN FILMS.  "NOTHING PINK OR RED IS
ALLOWED," HE ADDED.  CHICAGO DAILY NEWS, APR. 7, 1959, P. 3, COLS.  7
8.  THE POLICE SERGEANT IN CHARGE OF THE CENSOR UNIT HAS SAID:
"CHILDREN SHOULD BE ALLOWED TO SEE ANY MOVIE THAT PLAYS IN CHICAGO.  IF
A PICTURE IS OBJECTIONABLE FOR A CHILD, IT IS OBJECTIONABLE PERIOD." 
CHICAGO TRIBUNE, MAY 24, 1959, P. 8.  COL.  3.  AND THIS IS BUT A
SMATTERING PRODUCED FROM LIMITED RESEARCH.  PERHAPS THE MOST POWERFUL
INDICTMENT OF CHICAGO'S LICENSING DEVICE IS FOUND IN THE FACT THAT
BETWEEN THE COURT'S DECISION IN 1952 IN JOSEPH BURSTYN, INC., V.
WILSON, SUPRA, AND THE FILING OF THE PETITION FOR CERTIORARI IN 1960 IN
THE PRESENT CASE, NOT ONCE HAVE THE STATE COURTS UPHELD THE CENSOR WHEN
THE EXHIBITOR ELECTED TO APPEAL.  BRIEF OF AMERICAN CIVIL LIBERTIES
UNION AS AMICUS CURIAE, PP. 13-14. 

THIS IS THE REGIMEN TO WHICH THE COURT HOLDS THAT ALL FILMS MUST BE
SUBMITTED.  IT OFFICIALLY UNLEASHES THE CENSOR AND PERMITS HIM TO ROAM
AT WILL, LIMITED ONLY BY AN ORDINANCE WHICH CONTAINS SOME STANDARDS
THAT, ALTHOUGH CONCEDEDLY NOT BEFORE US IN THIS CASE, ARE PATENTLY
IMPRECISE.  THE CHICAGO ORDINANCE COMMANDS THE CENSOR TO REJECT FILMS
THAT ARE "IMMORAL," SEE COMMERCIAL PICTURES CORP. V. REGENTS, 346 U.S.
587; KINGSLEY INTERNATIONAL PICTURES CORP. V. REGENTS, 360 U.S. 684; OR
THOSE THAT PORTRAY "DEPRAVITY, CRIMINALITY, OR LACK OF VIRTUE OF A
CLASS OF CITIZENS OF ANY RACE, COLOR, CREED, OR RELIGION AND EXPOSE
THEM TO CONTEMPT, DERISION OR OBLOQUY, OR TEND TO PRODUCE A BREACH OF
THE PEACE OR RIOTS, OR PURPORT TO REPRESENT ANY HANGING, LYNCHING, OR
BURNING OF A HUMAN BEING."  MAY IT NOT BE SAID THAT ALMOST EVERY
CENSORED MOTION PICTURE THAT WAS CITED ABOVE COULD ALSO BE REJECTED,
UNDER THE ORDINANCE, BY THE CHICAGO CENSORS?  IT DOES NOT REQUIRE AN
ACTIVE IMAGINATION TO CONCEIVE OF THE QUANTUM OF IDEAS THAT WILL SURELY
BE SUPPRESSED. 

IF THE CENSOR DENIES RIGHTS PROTECTED BY THE FIRST AND FOURTEENTH
AMENDMENTS, THE COURTS MIGHT BE CALLED UPON TO CORRECT THE ABUSE IF THE
EXHIBITOR DECIDES TO PURSUE JUDICIAL REMEDIES.  BUT, THIS IS NOT A
SATISFACTORY ANSWER AS EMPHASIZED BY THIS VERY CASE.  THE DELAYS IN
ADJUDICATION MAY WELL RESULT IN IRREPARABLE DAMAGE, BOTH TO THE
LITIGANTS AND TO THE PUBLIC.  VINDICATION BY THE COURTS OF THE MIRACLE
WAS NOT HAD UNTIL FIVE YEARS AFTER THE CHICAGO CENSOR REFUSED TO
LICENSE IT.  AND THEN THE PICTURE WAS NEVER SHOWN IN CHICAGO.  BRIEF
FOR PETITIONER, P. 17.  THE INSTANT LITIGATION HAS NOW CONSUMED ALMOST
THREE YEARS.  THIS IS THE DELAY OCCASIONED BY THE CENSOR; THIS IS THE
INJURY DONE TO THE FREE COMMUNICATION OF IDEAS.  THIS DAMAGE IS NOT
INFLICTED BY THE ORDINARY CRIMINAL PENALTIES.  THE THREAT OF THESE
PENALTIES, INTELLIGENTLY APPLIED, WILL ORDINARILY BE SUFFICIENT TO
DETER THE EXHIBITION OF OBSCENITY.  HOWEVER, IF THE EXHIBITOR BELIEVES
THAT HIS FILM IS CONSTITUTIONALLY PROTECTED, HE WILL SHOW THE FILM,
AND, IF PROSECUTED UNDER CRIMINAL STATUTE, WILL HAVE READY THAT
DEFENSE.  THE PERNICIOUSNESS OF A SYSTEM OF CENSORSHIP IS THAT THE
EXHIBITOR'S BELIEF THAT HIS FILM IS CONSTITUTIONALLY PROTECTED IS
IRRELEVANT.  ONCE THE CENSOR HAS MADE HIS ESTIMATION THAT THE FILM IS
"BAD" AND HAS REFUSED TO ISSUE A PERMIT, THERE IS ORDINARILY NO DEFENSE
TO A PROSECUTION (FN10) FOR SHOWING THE FILM WITHOUT A LICENSE.  (FN11)
THUS, THE FILM IS NOT SHOWN, PERHAPS NOT FOR YEARS AND SOMETIMES NOT
EVER.  SIMPLY A TALISMANIC TEST OR SELF-WIELDING SWORD?  I THINK NOT. 

MOREOVER, MORE LIKELY THAN NOT, THE EXHIBITOR WILL NOT PURSUE
JUDICIAL REMEDIES.  SEE SCHNEIDER V. STATE, SUPRA, AT P. 164; ERNST AND
LINDEY, SUPRA, AT P. 80.  HIS INCLINATION MAY WELL BE SIMPLY TO
CAPITULATE RATHER THAN INITIATE A LENGTHY AND COSTLY LITIGATION. 
(FN12)  IN SUCH CASE, THE LIBERTY OF SPEECH AND PRESS, AND THE PUBLIC,
WHICH BENEFITS FROM THE SHIELDING OF THAT LIBERTY, ARE, IN EFFECT, AT
THE MERCY OF THE CENSOR'S WHIM.  THIS POWERFUL TENDENCY TO RESTRICT THE
FREE DISSEMINATION OF IDEAS CALLS FOR REVERSAL.  SEE GROSJEAN V.
AMERICAN PRESS CO., SUPRA, AT 245.    FREEDOM OF SPEECH AND FREEDOM OF
THE PRESS ARE FURTHER ENDANGERED BY THIS "MOST EFFECTIVE" MEANS FOR
CONFINEMENT OF IDEAS.  IT IS AXIOMATIC THAT THE STROKE OF THE CENSOR'S
PEN OR THE CUT OF HIS SCISSORS WILL BE A LESS CONTEMPLATED DECISION
THAN WILL BE THE PROSECUTOR'S DETERMINATION TO PREPARE A CRIMINAL
INDICTMENT.  THE STANDARDS OF PROOF, THE JUDICIAL SAFEGUARDS AFFORDED A
CRIMINAL DEFENDANT AND THE CONSEQUENCES OF BRINGING SUCH CHARGES WILL
ALL PROVOKE THE MATURE DELIBERATION OF THE PROSECUTOR.  NONE OF THESE
HINDER THE QUICK JUDGMENT OF THE CENSOR, THE SPEEDY DETERMINATION TO
SUPPRESS.  FINALLY, THE FEAR OF THE CENSOR BY THE COMPOSER OF IDEAS
ACTS AS A SUBSTANTIAL DETERRENT TO THE CREATION OF NEW THOUGHTS.  SEE
TOLSTOY'S DECLARATION, NOTE 6, SUPRA.  THIS IS ESPECIALLY TRUE OF
MOTION PICTURES DUE TO THE LARGE FINANCIAL BURDEN THAT MUST BE ASSUMED
BY THEIR PRODUCERS.  THE CENSOR'S SWORD PIERCES DEEPLY INTO THE HEART
OF FREE EXPRESSION. 

IT SEEMS TO ME THAT THE COURT'S OPINION COMES PERILOUSLY CLOSE TO
HOLDING THAT NOT ONLY MAY MOTION PICTURES BE CENSORED BUT THAT A
LICENSING SCHEME MAY ALSO BE APPLIED TO NEWSPAPERS, BOOKS AND
PERIODICALS, RADIO, TELEVISION, PUBLIC SPEECHES, AND EVERY OTHER MEDIUM
OF EXPRESSION.  THE COURT SUGGESTS THAT ITS DECISION TODAY IS LIMITED
TO MOTION PICTURES BY ASSERTING THAT THEY ARE NOT "NECESSARILY SUBJECT
TO THE PRECISE RULES GOVERNING ANY OTHER PARTICULAR METHOD OF
EXPRESSION.  EACH METHOD  ...  TENDS TO PRESENT ITS OWN PECULIAR
PROBLEMS."  ANTE, P. 49.  BUT, THIS, I BELIEVE, IS THE INVOCATION OF A
TALISMANIC PHRASE.  THE COURT, IN NO WAY, EXPLAINS WHY MOVING PICTURES
SHOULD BE TREATED DIFFERENTLY THAN ANY OTHER FORM OF EXPRESSION, WHY
MOVING PICTURES SHOULD BE DENIED THE PROTECTION AGAINST CENSORSHIP - "A
FORM OF INFRINGEMENT UPON FREEDOM OF EXPRESSION TO BE ESPECIALLY
CONDEMNED."  JOSEPH BURSTYN, INC., V. WILSON, SUPRA, AT P. 503.  WHEN
PRESSED DURING ORAL ARGUMENT, COUNSEL FOR THE CITY COULD MAKE NO
MEANINGFUL DISTINCTION BETWEEN THE CENSORSHIP OF NEWSPAPERS AND MOTION
PICTURES.  IN FACT, THE PERCENTAGE OF MOTION PICTURES DEALING WITH
SOCIAL AND POLITICAL ISSUES IS STEADILY RISING.  (FN13)  THE CHICAGO
ORDINANCE MAKES NO EXCEPTION FOR NEWSREELS, DOCUMENTARIES,
INSTRUCTIONAL AND EDUCATIONAL FILMS OR THE LIKE.  ALL MUST UNDERGO THE
CENSOR'S INQUISITION.  NOR MAY IT BE SUGGESTED THAT MOTION PICTURES MAY
BE TREATED DIFFERENTLY FROM NEWSPAPERS BECAUSE MANY MOVIES ARE PRODUCED
ESSENTIALLY FOR PURPOSES OF ENTERTAINMENT.  AS THE COURT SAID IN
WINTERS V. NEW YORK, 333 U.S. 507, 510: 

"WE DO NOT ACCEDE TO APPELLEE'S SUGGESTION THAT THE CONSTITUTIONAL
PROTECTION FOR A FREE PRESS APPLIES ONLY TO THE EXPOSITION OF IDEAS. 
THE LINE BETWEEN THE INFORMING AND THE ENTERTAINING IS TOO ELUSIVE FOR
THE PROTECTION OF THAT BASIC RIGHT.  EVERYONE IS FAMILIAR WITH
INSTANCES OF PROPAGANDA THROUGH FICTION.  WHAT IS ONE MAN'S AMUSEMENT,
TEACHES ANOTHER'S DOCTRINE."  SEE THOMAS V. COLLINS, SUPRA, AT P. 531. 
(FN14) 

THE CONTENTION MAY BE ADVANCED THAT THE IMPACT OF MOTION PICTURES IS
SUCH THAT A LICENSING SYSTEM OF PRIOR CENSORSHIP IS PERMISSIBLE.  THERE
ARE SEVERAL ANSWERS TO THIS, THE FIRST OF WHICH I THINK IS THE
CONSTITUTION ITSELF.  ALTHOUGH IT IS AN OPEN QUESTION WHETHER THE
IMPACT OF MOTION PICTURES IS GREATER OR LESS THAN THAT OF OTHER MEDIA,
THERE IS NOT MUCH DOUBT THAT THE EXPOSURE OF TELEVISION FAR EXCEEDS
THAT OF THE MOTION PICTURE.  SEE S. REP.  NO. 1466, 84TH CONG., 2D
SESS. 5.  BUT, EVEN IF THE IMPACT OF THE MOTION PICTURE IS GREATER THAN
THAT OF SOME OTHER MEDIA, THAT FACT CONSTITUTES NO BASIS FOR THE
ARGUMENT THAT MOTION PICTURES SHOULD BE SUBJECT TO GREATER
SUPPRESSION.  THIS IS THE TRADITIONAL ARGUMENT MADE IN THE CENSOR'S
BEHALF; THIS IS THE ARGUMENT ADVANCED AGAINST NEWSPAPERS AT THE TIME OF
THE INVENTION OF THE PRINTING PRESS.  THE ARGUMENT WAS ULTIMATELY
REJECTED IN ENGLAND, AND HAS CONSISTENTLY BEEN HELD TO BE CONTRARY TO
OUR CONSTITUTION.  NO COMPELLING REASON HAS BEEN PREDICATED FOR
ACCEPTING THE CONTENTION NOW. 

IT IS TRUE THAT "EACH METHOD OF EXPRESSION TENDS TO PRESENT ITS OWN
PECULIAR PROBLEMS."  JOSEPH BURSTYN, INC., V. WILSON, SUPRA, AT P.
503.  THE COURT HAS ADDRESSED ITSELF ON SEVERAL OCCASIONS TO THESE
PROBLEMS.  IN SCHNEIDER V. STATE, SUPRA, AT PP. 160-161, THE COURT
STATED, IN REFERENCE TO SPEAKING IN PUBLIC, THAT "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."  THE COURT RECOGNIZED THAT SOUND TRUCKS CALL
FOR PARTICULARIZED CONSIDERATION WHEN IT SAID IN SAIA V. NEW YORK,
SUPRA, AT P. 562, "NOISE CAN BE REGULATED BY REGULATING DECIBELS.  THE
HOURS AND PLACE OF PUBLIC DISCUSSION CAN BE CONTROLLED  ...  .  ANY
ABUSES WHICH LOUD-SPEAKERS CREATE CAN BE CONTROLLED BY NARROWLY DRAWN
STATUTES."  BUT, THE COURT'S DECISION TODAY DOES NOT FOLLOW FROM THIS. 
OUR PRIOR DECISIONS DO NOT DEAL WITH THE CONTENT OF THE SPEECH; THEY
DEAL ONLY WITH THE CONDITIONS SURROUNDING ITS DELIVERY.  THESE
CONDITIONS "TEND TO PRESENT THE PROBLEMS PECULIAR TO EACH METHOD OF
EXPRESSION."  HERE THE COURT USES THIS MAGICAL PHRASE TO CRIPPLE A
BASIC PRINCIPLE OF THE CONSTITUTION. 

THE COURT, NOT THE PETITIONER, MAKES THE "BROADSIDE ATTACK."  I WOULD
REVERSE THE DECISION BELOW. 

FN1  THE FOLLOWING CHARGE TO THE GRAND JURY BY CHIEF JUSTICE
HUTCHINSON OF MASSACHUSETTS IN 1767 DEFINES THE COMMON-LAW NOTION OF
FREEDOM OF THE PRESS: 

"THE LIBERTY OF THE PRESS IS DOUBTLESS A VERY GREAT BLESSING; BUT
THIS LIBERTY MEANS NO MORE THAN A FREEDOM FOR EVERY THING TO PASS FROM
THE PRESS WITHOUT A LICENSE."  QUINCY, REPORTS OF CASES ARGUED AND
ADJUDGED IN THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF
MASSACHUSETTS BAY, BETWEEN 1761 AND 1772, 244. 

FN2  PROFESSOR THOMAS I. EMERSON HAS STATED: 

"THERE IS, AT PRESENT, NO COMMON UNDERSTANDING AS TO WHAT CONSTITUTES
'PRIOR RESTRAINT.'  THE TERM IS USED LOOSLY TO EMBRACE A VARIETY OF
DIFFERENT SITUATIONS.  UPON ANALYSIS, CERTAIN BROAD CATEGORIES SEEM TO
BE DISCERNIBLE: 

"THE CLEAREST FORM OF PRIOR RESTRAINT ARISES IN THOSE SITUATIONS
WHERE THE GOVERNMENT LIMITATION, EXPRESSED IN STATUTE, REGULATION, OR
OTHERWISE, UNDERTAKES TO PREVENT FUTURE PUBLICATION OR OTHER
COMMUNICATION WITHOUT ADVANCE APPROVAL OF AN EXECUTIVE OFFICIAL." 
EMERSON, THE DOCTRINE OF PRIOR RESTRAINT, 20 LAW & CONTEMP.  PROB.,
648, 655. 

SEE ALSO BRATTLE FILMS, INC., V. COMMISSIONER OF PUBLIC SAFETY, 333
MASS. 58, 127 N.E.2D 891. 

FN3  IN SMITH, WE POINTED OUT THAT ALTHOUGH A "STRICT LIABILITY PENAL
ORDINANCE" WHICH DOES NOT REQUIRE SCIENTER MAY BE VALID WHEN APPLIED TO
THE DISTRIBUTORS OF FOOD OR DRUGS, IT IS INVALID WHEN APPLIED TO
BOOKSELLERS, DISTRIBUTORS OF IDEAS.  ID., AT 152-153. 

FN4  FOR THE PARTICULARLY PROVOCATIVE STATEMENTS MADE BY KUNZ, SEE
THE DISSENT OF MR. JUSTICE JACKSON.  ID., AT 296-297. 

FN5  JUDGE STANLEY H. FULD RIGHTLY OBSERVED: 

"WHATEVER MIGHT BE SAID OF A SCHEME OF ADVANCE CENSORSHIP DIRECTED
AGAINST ALL POSSIBLY OBSCENE WRITINGS, THE CASE BEFORE US CONCERNS A
REGULATORY MEASURE OF FAR NARROWER IMPACT, OF A KIND NEITHER ENTAILING
THE GRAVE DANGERS OF GENERAL CENSORSHIP NOR PRODUCTIVE OF THE ABUSES
WHICH GAVE RISE TO THE CONSTITUTIONAL GUARANTEES.  (CF. POUND,
EQUITABLE RELIEF AGAINST DEFAMATION AND INJURIES TO PERSONALITY, 29
HARV. L. REV. 640, 650-51.)"  BROWN V. KINGSLEY BOOKS, INC., 1 N.Y.2D
177, 185, 134 N.E.2D 461, 465. 

FN6  TOLSTOY ONCE WROTE: 

"YOU WOULD NOT BELIEVE HOW, FROM THE VERY COMMENCEMENT OF MY
ACTIVITY, THAT HORRIBLE CENSOR QUESTION HAS TORMENTED ME]  I WANTED TO
WRITE WHAT I FELT; BUT ALL THE SAME TIME IT OCCURRED TO ME THAT WHAT I
WROTE WOULD NOT BE PERMITTED, AND INVOLUNTARILY I HAD TO ABANDON THE
WORK.  I ABANDONED, AND WENT ON ABANDONING, AND MEANWHILE THE YEARS
PASSED AWAY."  QUOTED BY CHAFEE, SUPRA, AT P. 241. 

FN7  IN SMITH V. CALIFORNIA, SUPRA, WE NOTED THAT "OUR DECISIONS
FURNISH EXAMPLES OF LEGAL DEVICES AND DOCTRINES, IN MOST APPLICATIONS
CONSISTENT WITH THE CONSTITUTION, WHICH CANNOT BE APPLIED IN SETTINGS
WHERE THEY HAVE THE COLLATERAL EFFECT OF INHIBITING THE FREEDOM OF
EXPRESSION, BY MAKING THE INDIVIDUAL THE MORE RELUCTANT TO EXERCISE
IT."  ID., AT 150-151.  SEE SHELTON V. TUCKER, SUPRA. FORTY-SIX OF OUR
STATES CURRENTLY SEE FIT TO RELY ON TRADITIONAL CRIMINAL PUNISHMENT FOR
THE PROTECTION OF THEIR CITIZENS. 

FN8  ALTHOUGH THE CHICAGO ORDINANCE DESIGNATES THE COMMISSIONER OF
POLICE AS THE CENSOR, COUNSEL FOR THE CITY EXPLAINED THAT THE TASK IS
DELEGATED TO A GROUP OF PEOPLE, OFTEN WOMEN.  THE PROCEDURE BEFORE
CHICAGO'S CENSOR BOARD WAS FOUND TO BE AS FOLLOWS ACCORDING TO THE
TESTIMONY OF THE "COMMANDING OFFICER OF THE CENSOR UNIT": 

"Q.  AM I TO UNDERSTAND THAT THE PROCEDURE IS THAT ONLY THESE SIX
PEOPLE ARE IN THE ROOM, AND PERHAPS YOU, AT THE TIME THE FILM IS
SHOWN? 

"A.  YES. 

"Q.  DOES THE DISTRIBUTOR EVER GET A CHANCE TO PRESENT HIS VIEWS ON
THE PICTURE? 

"A.  NO, SIR. 

"Q.  ARE OTHER PEOPLE'S VIEWS INVITED, SUCH AS DRAMA CRITICS OR MOVIE
REVIEWERS OR WRITERS OR ARTISTS OF SOME KIND; OR ARE THEY EVER ASKED TO
COMMENT ON THE FILM BEFORE THE CENSOR BOARD MAKES ITS DECISION? 

"A.  NO, SIR. 

"Q.  IN OTHER WORDS, IT IS THESE SIX PEOPLE PLUS YOURSELF IN A
RELATIONSHIP THAT WE HAVE NOT AS YET DEFINED WHO DECIDE WHETHER THE
PICTURE CONFORMS TO THE STANDARDS SET UP IN THE ORDINANCE? 

"A.  YES, SIR."  TRANSCRIPT OF RECORD, P. 51, TIMES FILM CORP. V.
CITY OF CHICAGO, 244 F.2D 432. 

FN9  CF. CHAFEE, SUPRA: 

"A JURY IS NONE TOO WELL FITTED TO PASS ON THE INJURIOUS NATURE OF
OPINIONS, BUT AT LEAST IT CONSISTS OF TWELVE MEN WHO REPRESENT THE
GENERAL VIEWS AND THE COMMON SENSE OF THE COMMUNITY AND OFTEN
APPRECIATE THE MOTIVES OF THE SPEAKER OR WRITER WHOSE PUNISHMENT IS
SOUGHT.  A CENSOR, ON THE CONTRARY, IS A SINGLE INDIVIDUAL WITH A
PROFESSIONALIZED AND PARTISAN POINT OF VIEW.  HIS INTEREST LIES IN
PERPETUATING THE POWER OF THE GROUP WHICH EMPLOYS HIM, AND ANY BITTER
CRITICISM OF THE GROUP SMACKS TO HIM OF INCITEMENT TO BLOODY
REVOLUTION."  ID., AT 314. 

"ON THE OTHER HAND, A MAYOR AND A POLICE COMMISSIONER ARE NOT
ORDINARILY SELECTED ON THE BASIS OF WIDE READING AND LITERARY
JUDGMENT.  THEY HAVE OTHER DUTIES, WHICH REQUIRE OTHER QUALITIES.  THEY
MAY LACK THE TRAINING OF THE PERMANENT CENSOR, AND YET RUN THE SAME
RISK OF BEING ARBITRARY AND BUREAUCRATIC."  ID., AT 533. 

FN10  THAT PORTION OF THE CHICAGO ORDINANCE DEALING WITH PENALTIES IS
AS FOLLOWS: 

"ANY PERSON EXHIBITING ANY PICTURES OR SERIES OF PICTURES WITHOUT A
PERMIT HAVING BEEN OBTAINED THEREFOR SHALL BE FINED NOT LESS THAN FIFTY
DOLLARS NOR MORE THAN ONE HUNDRED DOLLARS FOR EACH OFFENSE.  A SEPARATE
AND DISTINCT OFFENSE SHALL BE REGARDED AS HAVING BEEN COMMITTED FOR
EACH DAY'S EXHIBITION OF EACH PICTURE OR SERIES OF PICTURES WITHOUT A
PERMIT." 

FN11  PROFESSOR PAUL A. FREUND HAS AFFIRMED THAT THIS SITUATION "DOES
INDEED HAVE A CHILLING EFFECT (ON FREEDOM OF COMMUNICATION) BEYOND THAT
OF A CRIMINAL STATUTE."  FREUND, THE SUPREME COURT AND CIVIL LIBERTIES,
4 VAND.  L. REV. 533, 539. 

FN12  A PARTICULARLY FRIGHTENING ILLUSTRATION IS FOUND IN THE
OPERATION OF A DETROIT BOOK CENSORSHIP PLAN.  ONE PUBLISHER SIMPLY
SUBMITTED HIS UNPRINTED MANUSCRIPTS TO THE CENSOR AND DELETED
EVERYTHING "OBJECTIONABLE" BEFORE PUBLICATION.  FROM 1950 TO 1952, MORE
THAN 100 TITLES OF BOOKS WERE DISAPPROVED BY THE CENSOR BOARD.  EVERY
BOOK BANNED WAS WITHHELD FROM CIRCULATION.  THE CENSOR BOARD, IN
ADDITION TO FINDING BOOKS "OBJECTIONABLE," LISTED A GROUP OF BOOKS NOT
SUITABLE FOR CRIMINAL PROSECUTION AS "PARTIALLY OBJECTIONABLE."  MOST
BOOKSELLERS WERE ALSO AFRAID TO HANDLE THESE.  LOCKHART AND MCCLURE,
LITERATURE, THE LAW OF OBSCENITY, AND THE CONSTITUTION, 38 MINN. L.
REV. 295, 314-316. 

FN13  SEE NOTE, 60 YALE L.J. 696, 706, N. 25. 

FN14  "THE EVILS TO BE PREVENTED WERE NOT THE CENSORSHIP OF THE PRESS
MERELY, BUT ANY ACTION OF THE GOVERNMENT BY MEANS OF WHICH IT MIGHT
PREVENT SUCH FREE AND GENERAL DISCUSSION OF PUBLIC MATTERS AS SEEMS
ABSOLUTELY ESSENTIAL TO PREPARE THE PEOPLE FOR AN INTELLIGENT EXERCISE
OF THEIR RIGHTS AS CITIZENS."  2 COOLEY, CONST. LIM.  (8TH ED.), P.
886. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

MY VIEW THAT CENSORSHIP OF MOVIES IS UNCONSTITUTIONAL BECAUSE IT IS A
PRIOR RESTRAINT AND VIOLATIVE OF THE FIRST AMENDMENT HAS BEEN EXPRESSED
ON PRIOR OCCASIONS.  SUPERIOR FILMS V. DEPARTMENT OF EDUCATION, 346
U.S. 587, 588-589 (CONCURRING OPINION); KINGSLEY PICTURES CORP. V.
REGENTS, 360 U.S. 684, 697 (CONCURRING OPINION). 

WHILE THE PROBLEM OF MOVIE CENSORSHIP IS RELATIVELY NEW, THE
CENSORSHIP DEVICE IS AN ANCIENT ONE.  IT WAS RECENTLY STATED, "THERE IS
A LAW OF ACTION AND REACTION IN THE DECLINE AND RESURGENCE OF
CENSORSHIP AND CONTROL.  WHENEVER LIBERTY IS IN THE ASCENDANT, A SOCIAL
GROUP WILL BEGIN TO RESIST IT; AND WHEN THE REVERSE IS TRUE, A SIMILAR
RESISTANCE IN FAVOR OF LIBERTY WILL OCCUR."  HANEY, COMSTOCKERY IN
AMERICA (1960), PP. 11-12. 

WHETHER OR NOT THAT STATEMENT OF HISTORY IS ACCURATE, CENSORSHIP HAS
HAD MANY CHAMPIONS THROUGHOUT TIME.    SOCRATES:  "AND SHALL WE JUST
CARELESSLY ALLOW CHILDREN TO HEAR ANY CASUAL TALES WHICH MAY BE DEVISED
BY CASUAL PERSONS, AND TO RECEIVE INTO THEIR MINDS IDEAS FOR THE MOST
PART THE VERY OPPOSITE OF THOSE WHICH WE SHOULD WISH THEM TO HAVE WHEN
THEY ARE GROWN UP?" 

GLAUCON:  "WE CAN NOT." 

SOCRATES:  "THEN THE FIRST THING WILL BE TO ESTABLISH A CENSORSHIP OF
THE WRITERS OF FICTION, AND LET THE CENSORS RECEIVE ANY TALE OF FICTION
WHICH IS GOOD, AND REJECT THE BAD; AND WE WILL DESIRE MOTHERS AND
NURSES TO TELL THEIR CHILDREN THE AUTHORIZED ONES ONLY.  LET THEM
FASHION THE MIND WITH SUCH TALES, EVEN MORE FONDLY THAN THEY MOULD THE
BODY WITH THEIR HANDS; BUT MOST OF THOSE WHICH ARE NOW IN USE MUST BE
DISCARDED."  PLATO, REPUBLIC (THE DIALOGUES OF PLATO, JOWETT TRANS.,
OX. UNIV.  PRESS, 1953) VOL. 2, P. 221. 

HOBBES WAS THE CENSOR'S PROPONENT:  "  ...  IT IS ANNEXED TO THE
SOVEREIGNTY, TO BE JUDGE OF WHAT OPINIONS AND DOCTRINES ARE AVERSE, AND
WHAT CONDUCING TO PEACE; AND CONSEQUENTLY, ON WHAT OCCASIONS, HOW FAR,
AND WHAT MEN ARE TO BE TRUSTED WITHAL, IN SPEAKING TO MULTITUDES OF
PEOPLE; AND WHO SHALL EXAMINE THE DOCTRINES OF ALL BOOKS BEFORE THEY BE
PUBLISHED.  FOR THE ACTIONS OF MEN PROCEED FROM THEIR OPINIONS; AND IN
THE WELL-GOVERNING OF OPINIONS, CONSISTETH THE WELL-GOVERNING OF MEN'S
ACTIONS, IN ORDER TO THEIR PEACE, AND CONCORD."  LEVIATHAN (OAKESHOTT
ED. 1947), P. 116. 

REGIMES OF CENSORSHIP ARE COMMON IN THE WORLD TODAY.  EVERY DICTATOR
HAS ONE; EVERY COMMUNIST REGIME FINDS IT INDISPENSABLE.  (FN1)  ONE
SHIELD AGAINST WORLD OPINION THAT COLONIAL POWERS HAVE USED WAS THE
CENSOR, AS DRAMATIZED BY FRANCE IN NORTH AFRICA.  EVEN ENGLAND HAS A
VESTIGE OF CENSORSHIP IN THE LORD CHAMBERLAIN (32 HALSBURY'S LAWS OF
ENGLAND (2D ED. 1939), P. 68) WHO PRESIDES OVER THE STAGE - A SYSTEM
THAT IN ORIGIN WAS CONCERNED WITH THE BARBS OF POLITICAL SATIRE.  (FN2)
BUT THE CONCERN WITH POLITICAL SATIRE SHIFTED TO A CONCERN WITH ATHEISM
AND WITH SEXUAL MORALITY - THE LAST BEING THE CONCERN EVIDENT IN
CHICAGO'S SYSTEM NOW BEFORE US. 

THE PROBLEMS OF THE WAYWARD MIND CONCERN THE CLERICS, THE
PSYCHIATRISTS, AND THE PHILOSOPHERS.  FEW GROUPS HAVE HESITATED TO
CREATE THE POLITICAL PRESSURES THAT TRANSLATE INTO SECULAR LAW THEIR
NOTIONS OF MORALITY.  PFEFFER, CREEDS IN COMPETITION (1958), PP. 103
109.  NO MORE POWERFUL WEAPON FOR SECTARIAN CONTROL CAN BE IMAGINED
THAN GOVERNMENTAL CENSORSHIP.  YET IN THIS COUNTRY THE STATE IS NOT THE
SECULAR ARM OF ANY RELIGIOUS SCHOOL OF THOUGHT, AS IN SOME NATIONS; NOR
IS THE CHURCH AN INSTRUMENT OF THE STATE.  WHETHER - AS HERE - CITY
OFFICIALS OR - AS IN RUSSIA - A POLITICAL PARTY LAYS CLAIM TO THE POWER
OF GOVERNMENTAL CENSORSHIP, WHETHER THE PRESSURES ARE FOR A CONFORMIST
MORAL CODE OR FOR A CONFORMIST POLITICAL IDEOLOGY, NO SUCH REGIME IS
PERMITTED BY THE FIRST AMENDMENT. 

THE FORCES THAT BUILD UP DEMANDS FOR CENSORSHIP ARE HETEROGENEOUS. 

"THE COMSTOCKS ARE NOT MERELY PEOPLE WITH INTELLECTUAL THEORIES WHO
MIGHT BE CONVINCED BY MORE PERSUASIVE THEORIES; NOR ARE THEY
PRAGMATISTS WHO WILL BE GUIDED BY THE BALANCE OF POWER AMONG PRESSURE
GROUPS.  MANY OF THEM ARE SO EMOTIONALLY INVOLVED IN THE CONDEMNATION
OF WHAT THEY FIND OBJECTIONABLE THAT THEY FIND RATIONAL ARGUMENTS
IRRELEVANT.  THEY MUST SUPPRESS WHAT IS OFFENSIVE IN ORDER TO STABILIZE
THEIR OWN TREMULOUS VALUES AND CONSCIENCES.  PANIC RULES THEM, AND THEY
CANNOT BE CALMED BY DISCUSSIONS OF LEGAL RIGHTS, LITERARY INTEGRITY, OR
ARTISTIC MERIT."  HANEY, OP. CIT. SUPRA, PP. 176-177. 

YET AS LONG AS THE FIRST AMENDMENT SURVIVES, THE CENSOR, NO MATTER
HOW RESPECTABLE HIS CAUSE, CANNOT HAVE THE SUPPORT OF GOVERNMENT.  IT
IS NOT FOR GOVERNMENT TO PICK AND CHOOSE ACCORDING TO THE STANDARDS OF
ANY RELIGIOUS, POLITICAL, OR PHILOSOPHICAL GROUP.  IT IS NOT
PERMISSIBLE, AS I READ THE CONSTITUTION, FOR GOVERNMENT TO RELEASE ONE
MOVIE AND REFUSE TO RELEASE ANOTHER BECAUSE OF AN OFFICIAL'S CONCEPT OF
THE PREVAILING NEED OR THE PUBLIC GOOD.  THE COURT IN NEAR V.
MINNESOTA, 283 U.S. 697, 713, SAID THAT THE "CHIEF PURPOSE" OF THE
FIRST AMENDMENT'S GUARANTEE OF FREEDOM OF PRESS WAS "TO PREVENT
PREVIOUS RESTRAINTS UPON PUBLICATION." 

A NOTED JESUIT HAS RECENTLY STATED ONE REASON AGAINST GOVERNMENT
CENSORSHIP: 

"THE FREEDOM TOWARD WHICH THE AMERICAN PEOPLE ARE FUNDAMENTALLY
ORIENTATED IS A FREEDOM UNDER GOD, A FREEDOM THAT KNOWS ITSELF TO BE
BOUND BY THE IMPERATIVES OF THE MORAL LAW.  ANTECEDENTLY IT IS PRESUMED
THAT A MAN WILL MAKE MORALLY AND SOCIALLY RESPONSIBLE USE OF HIS
FREEDOM OF EXPRESSION; HENCE THERE IS TO BE NO PRIOR RESTRAINT ON IT.
HOWEVER, IF HIS USE OF FREEDOM IS IRRESPONSIBLE, HE IS SUMMONED AFTER
THE FACT TO RESPONSIBILITY BEFORE THE JUDGMENT OF THE LAW.  THERE ARE
INDEED OTHER REASONS WHY PRIOR RESTRAINT ON COMMUNICATIONS IS OUTLAWED;
BUT NONE ARE MORE FUNDAMENTAL THAN THIS."   MURRAY, WE HOLD THESE
TRUTHS (1960), PP. 164-165. 

EXPERIENCE SHOWS OTHER EVILS OF "PRIOR RESTRAINT."  THE REGIME OF THE
CENSOR IS DEADENING.  ONE WHO WRITES CANNOT AFFORD ENTANGLEMENTS WITH
THE MAN WHOSE PENCIL CAN KEEP HIS PRODUCTION FROM THE MARKET.  THE
RESULT IS A PATTERN OF CONFORMITY.  MILTON MADE THE POINT LONG AGO:
"FOR THOUGH A LICENSER SHOULD HAPPEN TO BE JUDICIOUS MORE THAN
ORDINARILY, WHICH WILL BE A GREAT JEOPARDY OF THE NEXT SUCCESSION, YET
HIS VERY OFFICE, AND HIS COMMISSION ENJOINS HIM TO LET PASS NOTHING BUT
WHAT IS VULGARLY RECEIVED ALREADY."  AREOPAGITICA, 3 HARVARD CLASSICS
(1909), P. 212. 

ANOTHER EVIL OF CENSORSHIP IS THE EASE WITH WHICH THE CENSOR CAN
ERODE LIBERTY OF EXPRESSION.  ONE STROKE OF THE PEN IS ALL THAT IS
NEEDED.  UNDER A CENSOR'S REGIME THE WEIGHTS ARE CAST AGAINST FREEDOM. 
(FN3)  IF, HOWEVER, GOVERNMENT MUST PROCEED AGAINST AN ILLEGAL
PUBLICATION IN A PROSECUTION, THEN THE ADVANTAGES ARE ON THE OTHER
SIDE.  ALL THE PROTECTIONS OF THE BILL OF RIGHTS COME INTO PLAY.  THE
PRESUMPTION OF INNOCENCE, THE RIGHT TO JURY TRIAL, PROOF OF GUILT
BEYOND A REASONABLE DOUBT - THESE BECOME BARRIERS IN THE PATH OF
OFFICIALS WHO WANT TO IMPOSE THEIR STANDARD OF MORALITY ON THE AUTHOR
OR PRODUCER.  THE ADVANTAGE A CENSOR ENJOYS WHILE WORKING AS A SUPREME
BUREAUCRACY DISAPPEARS.  THE PUBLIC TRIAL TO WHICH A PERSON IS ENTITLED
WHO VIOLATES THE LAW GIVES A HEARING ON THE MERITS, AIRS THE GRIEVANCE,
AND BRINGS THE COMMUNITY JUDGMENT TO BEAR UPON IT.  IF A COURT SITS IN
REVIEW OF A CENSOR'S RULING, ITS FUNCTION IS LIMITED.  THERE IS LEEWAY
LEFT THE CENSOR, WHO LIKE ANY AGENCY AND ITS EXPERTISE, IS GIVEN A
PRESUMPTION OF BEING CORRECT.  (FN4)  THAT ADVANTAGE DISAPPEARS WHEN
THE GOVERNMENT MUST WAIT UNTIL A PUBLICATION IS MADE AND THEN PROVE ITS
CASE IN THE ACCEPTED MANNER BEFORE A JURY IN A PUBLIC TRIAL.  ALL OF
THIS IS ANATHEMA TO THE CENSOR WHO PREFERS TO WORK IN SECRET, PERHAPS
BECAUSE, AS MILTON SAID, HE IS "EITHER IGNORANT, IMPERIOUS, AND REMISS,
OR BASELY PECUNIARY."  AREOPAGITICA, SUPRA, P. 210. 

THE FIRST AMENDMENT WAS DESIGNED TO ENLARGE, NOT TO LIMIT, FREEDOM IN
LITERATURE AND IN THE ARTS AS WELL AS IN POLITICS, ECONOMICS, LAW, AND
OTHER FIELDS.  HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, 151-159;
KINGSLEY PICTURES CORP. V. REGENTS, SUPRA.  ITS AIM WAS TO UNLOCK ALL
IDEAS FOR ARGUMENT, DEBATE, AND DISSEMINATION.  NO MORE POTENT FORCE IN
DEFEAT OF THAT FREEDOM COULD BE DESIGNED THAN CENSORSHIP.  IT IS A
WEAPON THAT NO MINORITY OR MAJORITY GROUP, ACTING THROUGH GOVERNMENT,
SHOULD BE ALLOWED TO WIELD OVER ANY OF US.  (FN5) 

FN1  "NOWHERE HAVE THE COMMUNISTS BECOME SIMPLY A VOTE-GETTING
PARTY.  THEY ARE ORGANIZED AROUND IDEAS AND THEY CARE ABOUT IDEAS. 
THEY ARE THE GREAT HERESY HUNTERS OF THE MODERN WORLD."  WAYS, BEYOND
SURVIVAL (1959), P. 199. 

FN2  IVOR BROWN IN A RECENT SUMMARY OF THE WORK OF THE LORD
CHAMBERLAIN STATES:  "THE LICENSING OF PLAYS WAS IMPOSED NOT TO PROTECT
THE MORALS OF THE BRITISH PUBLIC BUT TO SAFEGUARD THE REPUTATION OF
POLITICIANS.  THIS HAPPENED IN 1737 WHEN THE PRIME MINISTER, SIR ROBERT
WALPOLE, INFURIATED BY THE STAGE LAMPOONS OF HENRY FIELDING AND OTHERS,
DETERMINED TO SILENCE THESE MUCH ENJOYED EXPOSURES OF HIS ALLEGED
CORRUPTION AND INCOMPETENCE.  THIS HAD THE CURIOUSLY BENEFICIAL RESULT
OF DRIVING FIELDING AWAY FROM THE STAGE.  HE THEN BECAME AN EXCELLENT
MAGISTRATE AND A MAJOR CREATOR OF THE ENGLISH NOVEL.  BUT IN THE
PURITANICAL ATMOSPHERE OF THE NINETEENTH CENTURY THE DISCIPLINE WAS
APPLIED TO THE MORAL CONTENT OF PLAYS AND APPLIED SO RIGOROUSLY THAT
THE DRAMATISTS WERE BARRED FROM SERIOUS TREATMENT OF 'STRAIGHT SEX,' AS
WELL AS THE ABNORMALITIES.  THE PRISSINESS OF RESPECTABLE VICTORIAN
SOCIETY WAS SUCH THAT LEGS WERE HARDLY TO BE MENTIONED, LET ALONE SEEN,
AND CHARLES DICKENS WROTE CUMBROUSLY OF 'UNMENTIONABLES' WHEN HE MEANT
TROUSERS."  N.Y. TIMES, JAN. 1, 1961, SEC. 2, P. X3.  AND SEE KNOWLES,
THE CENSOR, THE DRAMA, AND THE FILM (1934).  AS TO BRITISH CENSORSHIP
OF MOVIES SEE 15 & 16 GEO. 6 & 1 ELIZ.  2, C. 68. 

FN3  JOHN GALSWORTHY WROTE IN OPPOSITION TO THE BRITISH CENSORSHIP OF
PLAYS:  "IN THIS COUNTRY THE TONGUE AND PEN ARE SUBJECT TO THE LAW; SO
MAY IT EVER BE]  BUT IN THIS COUNTRY NEITHER TONGUE NOR PEN ARE IN ANY
OTHER INSTANCE SUBJECT TO THE DESPOTIC JUDGMENTS OF A SINGLE MAN.  THE
PROTEST IS NOT AIMED AT THE SINGLE MAN WHO HOLDS THIS OFFICE.  HE MAY
BE THE WISEST MAN IN ENGLAND, THE BEST FITTED FOR HIS DESPOTIC OFFICE. 
IT IS NOT HE; IT IS THE OFFICE THAT OFFENDS.  IT OFFENDS THE DECENT
PRIDE AND SELF-RESPECT OF AN ENTIRE PROFESSION.  TO THOSE WHO ARE
SURPRISED THAT DRAMATIC AUTHORS SHOULD TAKE THEMSELVES SO SERIOUSLY WE
SAY, WHAT WORKMAN WORTHY OF HIS TOOLS DOES NOT BELIEVE IN THE HONOUR OF
HIS CRAFT?  IN THIS APPEAL FOR COMMON JUSTICE WE DRAMATISTS, ONE LITTLE
BRANCH OF THE SACRED TREE OF LETTERS, APPEAL TO OUR BROTHER BRANCHES. 
WE APPEAL TO THE WHOLE KNIGHTHOOD OF THE PEN - SCIENTISTS, HISTORIANS,
NOVELISTS, JOURNALISTS.  THE HISTORY OF THE HEALTH OF NATIONS IS THE
HISTORY OF THE FREEDOM - NOT THE LICENCE - OF THE TONGUE AND PEN.  WE
ARE CLAIMING THE FREEDOM - NOT THE LICENCE - OF OUR PENS.  LET THOSE
HOLD BACK IN HELPING US WHO WOULD TAMELY SUFFER THEIR OWN PENS TO BE
WARPED AND SPLIT AS OURS ARE BEFORE WE TAKE THEM UP."  LONDON TIMES,
NOV. 1, 1907, P. 7.  AND SEE THE TESTIMONY OF GEORGE BERNARD SHAW IN
REPORT, JOINT SELECT COMMITTEE OF THE HOUSE OF LORDS AND THE HOUSE OF
COMMONS ON THE STAGE PLAYS (CENSORSHIP)(1909), P. 46 ET SEQ. SHAW,
THREE OF WHOSE PLAYS HAD BEEN SUPPRESSED, CAUSED A CONTEMPORARY
SENSATION BY ASKING, AND BEING REFUSED, PERMISSION TO FILE WITH THE
COMMITTEE AN ATTACK ON CENSORSHIP THAT HE HAD PREPARED.  SHAW'S VERSION
OF THE STORY AND THE REJECTED STATEMENT CAN BE FOUND AS HIS PREFACE TO
THE SHEWING-UP OF BLANCO POSNET.  HE SAYS IN HIS STATEMENT:  "ANY
JOURNALIST MAY PUBLISH AN ARTICLE, ANY DEMAGOGUE MAY DELIVER A SPEECH
WITHOUT GIVING NOTICE TO THE GOVERNMENT OR OBTAINING ITS LICENSE.  THE
RISK OF SUCH FREEDOM IS GREAT; BUT AS IT IS THE PRICE OF OUR POLITICAL
LIBERTY, WE THINK IT WORTH PAYING.  WE MAY ABROGATE IT IN EMERGENCIES
...  JUST AS WE STOP THE TRAFFIC IN A STREET DURING A FIRE OR SHOOT
THIEVES ON SIGHT AFTER AN EARTHQUAKE.  BUT WHEN THE EMERGENCY IS PAST,
LIBERTY IS RESTORED EVERYWHERE EXCEPT IN THE THEATRE.  CENSORSHIP IS A
PERMANENT PROCLAMATION OF MARTIAL LAW WITH A SINGLE OFFICIAL
SUBSTITUTED FOR A COURT MARTIAL."  THE SHEWING-UP OF BLANCO POSNET
(BRENTANO'S, 1913), P. 36. 

FN4  SEE NOTE, 71 HARV. L. REV. 326, 331.  CF. GLANZMAN V.
CHRISTENBERRY, 175 F. SUPP. 485, WITH GROVE PRESS, INC., V.
CHRISTENBERRY, 175 F. SUPP. 488, AS TO THE WEIGHT GIVEN TO POST-OFFICE
DETERMINATIONS OF NONMAILABILITY. 

FN5  "FIRST, WITHIN THE LARGER PLURALIST SOCIETY EACH MINORITY GROUP
HAS THE RIGHT TO CENSOR FOR ITS OWN MEMBERS, IF IT SO CHOOSES, THE
CONTENT OF THE VARIOUS MEDIA OF COMMUNICATION, AND TO PROTECT THEM, BY
MEANS OF ITS OWN CHOOSING, FROM MATERIALS CONSIDERED HARMFUL ACCORDING
TO ITS OWN STANDARDS. 

"SECOND, IN A PLURALIST SOCIETY NO MINORITY GROUP HAS THE RIGHT TO
DEMAND THAT GOVERNMENT SHOULD IMPOSE A GENERAL CENSORSHIP, AFFECTING
ALL THE CITIZENRY, UPON ANY MEDIUM OF COMMUNICATION, WITH A VIEW TO
PUNISHING THE COMMUNICATION OF MATERIALS THAT ARE JUDGED TO BE HARMFUL
ACCORDING TO THE SPECIAL STANDARDS HELD WITHIN ONE GROUP. 

"THIRD, ANY MINORITY GROUP HAS THE RIGHT TO WORK TOWARD THE ELVATION
OF STANDARDS OF PUBLIC MORALITY IN THE PLURALIST SOCIETY, THROUGH THE
USE OF THE METHODS OF PERSUASION AND PACIFIC ARGUMENT. 

"FOURTH, IN A PLURALIST SOCIETY NO MINORITY GROUP HAS THE RIGHT TO
IMPOSE ITS OWN RELIGIOUS OR MORAL VIEWS ON OTHER GROUPS, THROUGH THE
USE OF THE METHODS OF FORCE, COERCION, OR VIOLENCE."  MURRAY, WE HOLD
THESE TRUTHS (1960), P. 168. 
..END :











CAMPBELL V. UNITED STATES 365 U.S. 85 


NO. 53.  ARGUED DECEMBER 6, 1960 - DECIDED JANUARY 23, 1961 - 269 F.2D
688, JUDGMENT VACATED AND CAUSE REMANDED. 


DURING A TRIAL IN A FEDERAL DISTRICT COURT AT WHICH PETITIONERS WERE
CONVICTED OF A FEDERAL CRIME, A GOVERNMENT WITNESS TESTIFIED ON CROSS
EXAMINATION THAT, WHILE BEING INTERVIEWED BY A FEDERAL AGENT, HE HAD
MADE AND SIGNED A STATEMENT WHICH HAD BEEN WRITTEN DOWN BY THE AGENT. 
ON MOTION OF PETITIONERS UNDER THE SO-CALLED JENCKS ACT, 18 U.S.C.
SEC. 3500, THE COURT DIRECTED THE GOVERNMENT TO PRODUCE THE DOCUMENT. 
GOVERNMENT COUNSEL DENIED POSSESSION OF SUCH A DOCUMENT, BUT ADMITTED
POSSESSION OF A REPORT WRITTEN BY A FEDERAL AGENT SUMMARIZING AN
INTERVIEW WITH THAT WITNESS.  THE TRIAL JUDGE HELD AN INQUIRY IN THE
JURY'S ABSENCE, AT THE CONCLUSION OF WHICH HE REFUSED TO ORDER THE
GOVERNMENT TO DELIVER THE AGENT'S REPORT TO PETITIONERS AND ALSO DENIED
THEIR MOTION TO STRIKE THE TESTIMONY OF THE WITNESS.  HE SHOWED THE
REPORT TO THE WITNESS, WHO DENIED THAT IT WAS HIS STATEMENT, AND HE
REFUSED TO CALL AS A WITNESS THE AGENT WHO MADE THE REPORT, THOUGH HE
SAID THAT THE DEFENDANTS COULD DO SO IF THEY WISHED.  HELD: 

1.  BECAUSE OF ERRORS IN THE CONDUCT OF THE INQUIRY, PETITIONERS ARE
ENTITLED TO A RE-EXAMINATION OF THEIR MOTION FOR PRODUCTION OF THE
WITNESS' PRETRIAL STATEMENTS AND THEIR MOTION TO STRIKE HIS TESTIMONY. 
PP. 86-98. 

(A)  THE CIRCUMSTANCES OF THIS CASE REQUIRED THAT THE JUDGE, OF HIS
OWN MOTION, CALL THE AGENT WHO SIGNED THE REPORT OR REQUIRE THE
GOVERNMENT TO DO SO, SINCE THE AGENT WAS READILY AVAILABLE AND COULD
EXPLAIN WHERE HE GOT THE INFORMATION AND WHAT HAD BECOME OF THE
ORIGINAL WRITING.  PP. 94-96. 

(B)  THE JUDGE ERRED IN RELYING UPON THE WITNESS TO SUPPLY THE
INFORMATION HE SOUGHT, SINCE THE VERY QUESTION TO BE DETERMINED WAS
WHETHER THE DEFENSE SHOULD HAVE THE DOCUMENT FOR USE IN CROSS-EXAMINING
THE WITNESS AND POSSIBLY IMPEACHING HIS TESTIMONY.  PP. 96-98. 

(C)  FAILURE OF THE JUDGE TO CALL FOR THE TESTIMONY OF THE AGENT WHO
SIGNED THE REPORT FORECLOSED A PROPER DETERMINATION OF PETITIONERS'
MOTION TO STRIKE THE TESTIMONY OF THE WITNESS.  P. 98. 

(D)  THE RECORD AFFORDS THIS COURT NO OPPORTUNITY TO DECIDE THE
IMPORTANT QUESTION AS TO THE CONSTRUCTION AND APPLICATION OF 18 U.S.C.
SEC. 3500(D), SINCE IT DOES NOT SHOW WHETHER SUCH A PAPER AS THAT
DESCRIBED BY THE WITNESS EXISTED AND WAS DESTROYED, OR THE
CIRCUMSTANCES OF ITS DESTRUCTION, NOR CAN IT BE KNOWN WITHOUT THE
BENEFIT OF THE TESTIMONY OF THE AGENT WHO INTERVIEWED THE WITNESS AND
PREPARED THE REPORT.  P. 98. 

2.  THE JUDGMENT OF THE COURT OF APPEALS AFFIRMING THE CONVICTION IS
VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS.  PP. 98-99. 

(A)  THE DISTRICT COURT IS DIRECTED TO HOLD A NEW INQUIRY CONSISTENT
WITH THIS OPINION, TO SUPPLEMENT THE RECORD WITH NEW FINDINGS AND TO
ENTER A NEW FINAL JUDGMENT OF CONVICTION, IF IT CONCLUDES TO REAFFIRM
ITS FORMER RULINGS.  PP. 98-99. 

(B)  IF THE DISTRICT COURT CONCLUDES THAT THE GOVERNMENT SHOULD HAVE
BEEN REQUIRED TO DELIVER THE REPORT OR OTHER STATEMENT TO PETITIONERS,
OR THAT IT SHOULD HAVE GRANTED THEIR MOTION TO STRIKE THE WITNESS'
TESTIMONY, IT WILL VACATE THE JUDGMENT OF CONVICTION AND GRANT
PETITIONERS A NEW TRIAL.  P. 99. 

CAMPBELL ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

AFTER A GOVERNMENT WITNESS TESTIFIES ON DIRECT EXAMINATION IN A
FEDERAL CRIMINAL PROSECUTION THE TRIAL COURT IS REQUIRED, UNDER THE SO
CALLED JENCKS ACT, (FN1) ON MOTION OF THE DEFENDANT, TO ORDER THE
UNITED STATES TO PRODUCE, FOR IMPEACHMENT PURPOSES, DEFINED PRETRIAL
STATEMENTS OF THE WITNESS, OR PARTS OF SUCH STATEMENTS AS DETERMINED
UNDER SUBSECTION (C), WHICH RELATE TO THE SUBJECT MATTER OF HIS TRIAL
TESTIMONY AND ARE IN THE POSSESSION OF THE UNITED STATES.  THE
CONVICTION OF THE PETITIONERS IN THE DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS FOR BANK ROBBERY IN VIOLATION OF 18 U.S.C. SEC. 2113 WAS
SUSTAINED BY THE COURT OF APPEALS FOR THE FIRST CIRCUIT.  269 F.2D
688.  DURING THE TRIAL THE COURT ORDERED THE GOVERNMENT TO PRODUCE A
DOCUMENT DESCRIBED ON CROSS-EXAMINATION BY ONE OF ITS WITNESSES IN
TERMS WHICH SATISFY THE DEFINITION OF A "STATEMENT" UNDER THE ACT.  THE
GOVERNMENT DENIED HAVING POSSESSION OF SUCH A DOCUMENT.  IT DID,
HOWEVER, ADMIT POSSESSION OF AN INTERVIEW REPORT OF AN INTERVIEW BY AN
FBI AGENT WITH THAT WITNESS, BUT CONTENDED THAT THIS REPORT FELL
OUTSIDE THE STATUTE.  THE TRIAL JUDGE HELD AN INQUIRY WITHOUT THE JURY
PRESENT, AT THE CONCLUSION OF WHICH HE REFUSED TO ORDER THE UNITED
STATES TO DELIVER THE INTERVIEW REPORT TO THE PETITIONERS, AND ALSO
DENIED THEIR MOTION TO STRIKE THE TESTIMONY OF THE WITNESS.  THE
PROCEDURE AT THAT INQUIRY RAISES QUESTIONS IMPORTANT IN THE
ADMINISTRATION OF THE JENCKS ACT, AND WE GRANTED CERTIORARI LIMITED TO
THE REVIEW OF THOSE QUESTIONS.  362 U.S. 909. 

THE GOVERNMENT WITNESS WAS DOMINIC STAULA, A DEPOSITOR WHO WAS IN THE
BANK AT THE TIME OF THE ROBBERY.  ON DIRECT EXAMINATION HE IDENTIFIED
THE PETITIONER LESTER AS ONE OF THE ROBBERS.  WHEN ASKED ON CROSS
EXAMINATION WHETHER HE MADE ANY STATEMENTS TO GOVERNMENT AGENTS BEFORE
THE TRIAL, HE SAID THAT AN AGENT OF THE FEDERAL BUREAU OF INVESTIGATION
WHO INTERVIEWED HIM DURING THE WEEK FOLLOWING THE ROBBERY WROTE DOWN
SUCH A STATEMENT.  HIS RECOLLECTION OF WHAT OCCURRED AT THE INTERVIEW
WAS NOT ENTIRELY CLEAR, (FN2) BUT THE TRIAL JUDGE RULED THAT HE HAD
MADE A STATEMENT SATISFYING THE REQUIREMENTS OF THE JENCKS ACT AND
ORDERED THE UNITED STATES TO PRODUCE IT.  THE ASSISTANT UNITED STATES
ATTORNEY PRESENTING THE GOVERNMENT'S CASE STATED THAT HE HAD NO SUCH
PAPER AS THE WITNESS DESCRIBED.  HE STATED FURTHER THAT THE ONLY
DOCUMENT IN THE POSSESSION OF THE PROSECUTION WAS NOT A "STATEMENT"
WITHIN THE STATUTE, BUT A TYPED INTERVIEW REPORT (FN3) OF FBI SPECIAL
AGENT TOOMEY PREPARED AND TRANSCRIBED AFTER THE INTERVIEW AT A TIME
UNKNOWN TO THE ASSISTANT.  THE ASSISTANT REFUSED TO DELIVER THE REPORT
TO PETITIONERS' COUNSEL BUT DELIVERED IT TO THE JUDGE FOR HIS
INSPECTION.  THE THE COURT'S QUESTION WHETHER THE GOVERNMENT POSSESSED
"ANY STATEMENT THAT WAS COPIED BY AN FBI AGENT WHICH IN ANY WAY WOULD
REFLECT A STATEMENT THAT THIS WITNESS MADE AND WHICH HE SUBSTANTIALLY
ADOPTED AS THE STATEMENT," THE ASSISTANT REPLIED "NO, YOUR HONOR, WE
DON'T."  TO THE FURTHER QUESTION WHETHER "THE UNITED STATES HAS IN ITS
POSSESSION ANY NOTES THAT WERE TAKEN DOWN BY THE FBI AGENT AT THE TIME
THIS WITNESS WAS INTERVIEWED," THE ASSISTANT ANSWERED, "I DO NOT HAVE
THEM IN MY POSSESSION AND I DO NOT KNOW WHETHER THEY EVER EXISTED." 

THE JENCKS ACT LIMITS ACCESS BY DEFENDANTS TO SUCH GOVERNMENT PAPERS
AS FIT THE ACT'S DEFINITION OF "STATEMENT" WHICH RELATE TO THE SUBJECT
MATTER AS TO WHICH THE WITNESS HAS TESTIFIED, PALERMO V. UNITED STATES,
360 U.S. 343.  HOWEVER, THE STATUTE REQUIRES THAT THE JUDGE SHALL, ON
MOTION OF THE DEFENDANT, AFTER A WITNESS CALLED BY THE UNITED STATES
HAS TESTIFIED ON DIRECT EXAMINATION, ORDER THE UNITED STATES, FOR
IMPEACHMENT PURPOSES, TO PRODUCE ANY SUCH "STATEMENTS."  TO THAT
EXTENT, AS THE LEGISLATIVE HISTORY MAKES CLEAR, THE JENCKS ACT
"REAFFIRMS" OUR HOLDING IN JENCKS V. UNITED STATES, 353 U.S. 657, THAT
THE DEFENDANT ON TRIAL IN A FEDERAL CRIMINAL PROSECUTION IS ENTITLED,
FOR IMPEACHMENT PURPOSES, TO RELEVANT AND COMPETENT STATEMENTS OF A
GOVERNMENT WITNESS IN POSSESSION OF THE GOVERNMENT TOUCHING THE EVENTS
OR ACTIVITIES AS TO WHICH THE WITNESS HAS TESTIFIED AT THE TRIAL.   S.
REP. NO. 981, 85TH CONG., 1ST SESS., P. 3.  AND SEE H.R. REP. NO. 700,
85TH CONG., 1ST SESS., PP. 3-4.  THE COMMAND OF THE STATUTE IS THUS
DESIGNED TO FURTHER THE FAIR AND JUST ADMINISTRATION OF CRIMINAL
JUSTICE, A GOAL OF WHICH THE JUDICIARY IS THE SPECIAL GUARDIAN. 

AFTER AN OVERNIGHT RECESS THE TRIAL JUDGE CONDUCTED AN INQUIRY
WITHOUT THE JURY PRESENT TO TAKE TESTIMONY AND HEAR ARGUMENT OF
COUNSEL.  PLAINLY ENOUGH THIS WAS A PROPER, EVEN A REQUIRED, PROCEEDING
IN THE CIRCUMSTANCES.  DETERMINATION OF THE QUESTION WHETHER THE
GOVERNMENT SHOULD BE ORDERED TO PRODUCE GOVERNMENT PAPERS COULD NOT BE
MADE FROM A MERE INSPECTION OF THE INTERVIEW REPORT, BUT ONLY WITH THE
HELP OF EXTRINSIC EVIDENCE.  THE SITUATION WAS DIFFERENT FROM THAT
GOVERNED BY SUBSECTION (C), IN WHICH THE GOVERNMENT ADMITS THAT A
DOCUMENT IN ITS POSSESSION IS A "STATEMENT" BUT SUBMITS THE PAPER FOR
THE JUDGE'S IN CAMERA INSPECTION TO DELETE MATTER WHICH THE GOVERNMENT
CONTENDS DOES NOT RELATE TO THE SUBJECT MATTER OF THE TESTIMONY OF THE
WITNESS.  THE SITUATION WAS SIMILAR TO THAT IN PALERMO, WHERE THE
GOVERNMENT ALSO CONTENDED THAT A PAPER IN ITS POSSESSION WAS NOT A
"STATEMENT."  WE THERE APPROVED THE PROCEDURE OF TAKING EXTRINSIC
TESTIMONY OUT OF THE PRESENCE OF THE JURY TO ASSIST THE JUDGE IN
REACHING HIS DETERMINATION WHETHER TO ORDER PRODUCTION OF THE PAPER. 
WE SAID, AT 354-355, "IT IS ALSO THE FUNCTION OF THE TRIAL JUDGE TO
DECIDE, IN LIGHT OF THE CIRCUMSTANCES OF EACH CASE, WHAT, IF ANY,
EVIDENCE EXTRINSIC TO THE STATEMENT ITSELF MAY OR MUST BE OFFERED TO
PROVE THE NATURE OF THE STATEMENT." 

IN THIS CASE THE AID OF EXTRINSIC EVIDENCE WAS REQUIRED TO ANSWER THE
FOLLOWING QUESTIONS BEARING ON THE PETITIONERS' MOTIONS: 

DID TOOMEY WRITE DOWN WHAT STAULA TOLD HIM AT THE INTERVIEW?  IF SO,
DID TOOMEY GIVE STAULA THE PAPER "TO READ OVER, TO MAKE SURE THAT IT
WAS RIGHT," AND DID STAULA SIGN IT? 

WAS THE INTERVIEW REPORT THE PAPER STAULA DESCRIBED, OR A COPY OF
THAT PAPER?  IN EITHER CASE, AS THE TRIAL JUDGE RULED, THE INTERVIEW
REPORT WOULD BE A PRODUCIBLE "STATEMENT" UNDER SUBSECTION (E)(1). 
"STATEMENTS" UNDER THAT SUBSECTION ARE NOT LIMITED TO SUCH AS THE
WITNESS HAS HIMSELF SET DOWN ON PAPER.  THEY INCLUDE ALSO A STATEMENT
WRITTEN DOWN BY ANOTHER WHICH THE WITNESS "SIGNED OR OTHERWISE ADOPTED
OR APPROVED" AS A STATEMENT "MADE BY SAID WITNESS."  TRUE, THE REPORT
DOES NOT BEAR STAULA'S SIGNATURE AND THE WITNESS TESTIFIED "I THINK I
HAD TO SIGN" THE ORIGINAL PAPER.  HOWEVER, IF THE PAPER WAS OTHERWISE
ADOPTED OR APPROVED BY THE WITNESS, HIS SIGNATURE WAS NOT ESSENTIAL. 
SEE BERGMAN V. UNITED STATES, 253 F.2D 933, 935, NOTE 1; UNITED STATES
V. TOMAIOLO, 280 F.2D 411, 413. 

IF THE INTERVIEW REPORT WAS NOT THE ORIGINAL OR A COPY OF THE PAPER
STAULA DESCRIBED, WHAT BECAME OF THE PAPER? 

IN ANY EVENT, EVEN IF THE INTERVIEW REPORT WAS NOT THE ORIGINAL OR A
COPY OF THE PAPER STAULA DESCRIBED, HAD STAULA READ OVER AND APPROVED
THE INTERVIEW REPORT?  IN SUCH CASE THE REPORT WOULD BE PRODUCIBLE
UNDER SUBSECTION (E)(1) ALTHOUGH NOT RELATED TO THE PAPER STAULA
DESCRIBED.  OR WAS THE INTERVIEW REPORT A SUBSTANTIALLY VERBATIM
RECITAL OF AN ORAL STATEMENT WHICH THE AGENT HAD RECORDED
CONTEMPORANEOUSLY?  IF EXTRINSIC EVIDENCE ESTABLISHED THIS, THE REPORT
WOULD BE PRODUCIBLE UNDER SUBSECTION (E)(2).  PALERMO V. UNITED STATES,
AT 351-352. 

THE OBVIOUS WITNESS TO CALL WAS SPECIAL AGENT TOOMEY WHO, THE PARTIES
AGREED, WAS READILY AVAILABLE.  DEFENSE COUNSEL SUGGESTED THAT THE
AGENT BE CALLED "TO EXPLAIN WHERE HE GOT THE  ... INTERVIEW REPORT,"
AND ALSO BECAUSE "MR. TOOMEY COULD EASILY SAY WHAT HE HAS DONE WITH THE
ORIGINAL WRITING."  DEFENSE COUNSEL WERE NOT IN A POSITION ALSO TO
APPRECIATE THE SIGNIFICANCE OF TOOMEY'S TESTIMONY TO THE POSSIBLE
PRODUCIBILITY OF THE INTERVIEW REPORT ITSELF.  CONSISTENT WITH OUR
ADMONITION IN PALERMO, 360 U.S., AT 354, THAT "IT WOULD INDEED DEFEAT
THIS DESIGN TO LIMIT DEFENSE ACCESS TO GOVERNMENT PAPERS TO HOLD THAT
THE DEFENSE MAY SEE STATEMENTS IN ORDER TO ARGUE WHETHER IT SHOULD BE
ALLOWED TO SEE THEM," NEITHER THE GOVERNMENT NOR THE JUDGE PERMITTED
THEM TO INSPECT IT. FROM HIS OWN INSPECTION, HOWEVER, THE JUDGE WAS
AWARE OF THE SIGNIFICANCE WHICH TOOMEY'S EVIDENCE MIGHT HAVE ON THE
JUDGE'S DETERMINATION WHETHER HE SHOULD ORDER THE GOVERNMENT TO TURN
OVER THE INTERVIEW REPORT TO THE DEFENSE.  THE INTERVIEW REPORT
RESEMBLES THE STATEMENT STAULA DESCRIBED AND THE JUDGE INDICATED THAT
HE WOULD ORDER ITS PRODUCTION IF IT WAS THAT STATEMENT OR A COPY OF IT,
OR ALTHOUGH NOT THE ORIGINAL OR A COPY, IF STAULA HAD READ AND APPROVED
IT, OR IF IT WAS A CONTEMPORANEOUSLY RECORDED SUBSTANTIALLY VERBATIM
RECITAL OF STAULA'S ORAL STATEMENT.  NEVERTHELESS, THE JUDGE RULED THAT
IT WAS FOR THE PETITIONERS TO SUBPOENA TOOMEY AS "THEIR WITNESS" IF
THEY BELIEVED HIS TESTIMONY WOULD SUPPORT THEIR MOTIONS, AND THAT HE
WOULD NOT OF HIS OWN MOTION SUMMON TOOMEY TO TESTIFY, OR REQUIRE THE
GOVERNMENT TO PRODUCE HIM.  WE THINK THAT THIS RULING WAS ERRONEOUS. 

THE INQUIRY BEING CONDUCTED BY THE JUDGE WAS NOT AN ADVERSARY
PROCEEDING IN THE NATURE OF A TRIAL CONTROLLED BY RULES GOVERNING THE
ALLOCATION BETWEEN THE PARTIES OF THE BURDENS OF PROOF OR PERSUASION. 
THE INQUIRY WAS SIMPLY A PROCEEDING NECESSARY TO AID THE JUDGE TO
DISCHARGE THE RESPONSIBILITY LAID UPON HIM TO ENFORCE THE STATUTE.  THE
FUNCTION OF PROSECUTION AND DEFENSE AT THE INQUIRY WAS NOT SO MUCH A
FUNCTION OF THEIR ADVERSARY POSITIONS IN THE TRIAL PROPER, AS IT WAS A
FUNCTION OF THEIR DUTY TO COME FORWARD WITH RELEVANT EVIDENCE WHICH
MIGHT ASSIST THE JUDGE IN THE MAKING OF HIS DETERMINATION.  THESE
CONSIDERATIONS STANDING ALONE SUGGEST THAT THE EMPHASIS ON THE
PETITIONERS' BURDEN TO PRODUCE THE EVIDENCE WAS MISPLACED.  THE STATUTE
SAYS NOTHING OF BURDENS OF PRODUCING EVIDENCE.  RATHER IT IMPLIES THE
DUTY IN THE TRIAL JUDGE AFFIRMATIVELY TO ADMINISTER THE STATUTE IN SUCH
WAY AS CAN BEST SECURE RELEVANT AND AVAILABLE EVIDENCE NECESSARY TO
DECIDE BETWEEN THE DIRECTLY OPPOSED INTERESTS PROTECTED BY THE STATUTE
THE INTEREST OF THE GOVERNMENT IN SAFEGUARDING GOVERNMENT PAPERS FROM
DISCLOSURE, AND THE INTEREST OF THE ACCUSED IN HAVING THE GOVERNMENT
PRODUCE "STATEMENTS" WHICH THE STATUTE REQUIRES TO BE PRODUCED. 

THE CIRCUMSTANCES OF THIS CASE CLEARLY REQUIRED THAT THE JUDGE CALL
TOOMEY OF HIS OWN MOTION OR REQUIRE THE GOVERNMENT TO PRODUCE HIM.  NOT
ONLY DID THE GOVERNMENT HAVE THE ADVANTAGE OVER THE DEFENSE OF KNOWING
THE CONTENTS OF THE INTERVIEW REPORT BUT IT ALSO HAD THE ADVANTAGE OF
HAVING TOOMEY IN ITS EMPLOY AND PRESUMABLY KNEW, OR COULD READILY
ASCERTAIN FROM HIM, THE FACTS ABOUT THE INTERVIEW.  IN ADDITION TO THE
CONSIDERATION THAT THE INTEREST OF THE UNITED STATES IN A CRIMINAL
PROSECUTION "  ...  IS NOT THAT IT SHALL WIN A CASE, BUT THAT JUSTICE
SHALL  BE DONE,  ...  " BERGER V. UNITED STATES, 295 U.S. 78, 88, THE
ORDINARY RULE, BASED ON CONSIDERATIONS OF FAIRNESS, DOES NOT PLACE THE
BURDEN UPON A LITIGANT OF ESTABLISHING FACTS PECULIARLY WITHIN THE
KNOWLEDGE OF HIS ADVERSARY.  UNITED STATES V. NEW YORK, N.H.&H.R. CO.,
355 U.S. 253, 256, NOTE 5.  MOREOVER, THE PETITIONERS' CROSS
EXAMINATION OF STAULA HAD SHOWN A PRIMA FACIE CASE OF THEIR ENTITLEMENT
TO A STATEMENT, AND, AT THE LEAST, THE JUDGE SHOULD HAVE REQUIRED THE
GOVERNMENT TO COME FORWARD WITH EVIDENCE TO ANSWER THAT CASE.  CF.
UNITED STATES V. COSTELLO, 145 F. SUPP.  892, 894-895, NOTE 13.  SINCE
THE INTERVIEW REPORT WAS NOT, AND UNDER PALERMO COULD NOT BE, MADE
AVAILABLE TO THE PETITIONERS, AND THEY THUS HAD NO WAY OF KNOWING THE
SIGNIFICANCE OF ITS CONTENTS TO THE QUESTION THE JUDGE WAS TO
DETERMINE, IT SADDLED AN UNFAIRLY SEVERE BURDEN ON THEM TO REQUIRE THEM
TO SUBPOENA TOOMEY AS "THEIR WITNESS."  IN THE ROLE OF PETITIONERS'
WITNESS, THEY WOULD BE GROPING IN THE DARK IN QUESTIONING HIM, AND THEY
MIGHT BE BOUND BY HIS ANSWERS.  AS A WITNESS CALLED BY THE GOVERNMENT
OR EVEN AS THE COURT'S WITNESS, THEY WOULD HAVE A LATITUDE IN CROSS
EXAMINATION TO WHICH THE CIRCUMSTANCES ENTITLED THEM. 

INSTEAD OF CALLING TOOMEY OR HAVING THE GOVERNMENT CALL HIM, THE
TRIAL JUDGE FELL INTO FURTHER ERROR BY RELYING UPON STAULA TO SUPPLY
THE INFORMATION HE SOUGHT.  OVER THE OBJECTION OF GOVERNMENT COUNSEL
THAT THE INTERVIEW REPORT HAD NOT BEEN "RECORDED CONTEMPORANEOUSLY WITH
THE MAKING OF SUCH ORAL STATEMENT," AND OVER THE OBJECTION OF THE
PETITIONERS THAT "IF THIS MAN NOW READS THAT STATEMENT IT LOSES ITS
EFFECT FOR PURPOSES OF IMPEACHMENT," THE JUDGE DIRECTED STAULA TO READ
THE INTERVIEW REPORT AND SAY WHETHER HE WAS FAMILIAR WITH IT.  THE
WITNESS SAID THAT HE HAD NEVER SEEN THE REPORT.  THE JUDGE THEN ASKED
STAULA "  ...  IS THAT A SUBSTANTIALLY VERBATIM RECITAL OF WHAT YOU
TOLD AGENT TOOMEY?"  THE WITNESS REPLIED, "THAT'S NOT WRITTEN UP JUST
THE WAY THE STORY IS."  "THERE ARE THINGS IN THERE TURNED AROUND."  IT
WAS AFTER THIS TESTIMONY WAS ELICITED FROM STAULA THAT THE JUDGE RULED
HE WOULD NOT ORDER THE DELIVERY OF THE INTERVIEW REPORT TO THE
PETITIONERS, AND DENIED THEIR MOTION TO STRIKE THE WITNESS' TESTIMONY. 
RELIANCE UPON THE TESTIMONY OF THE WITNESS BASED UPON HIS INSPECTION
OF THE CONTROVERTED DOCUMENT MUST BE IMPROPER IN ALMOST ANY
CIRCUMSTANCES.  THE VERY QUESTION BEING DETERMINED WAS WHETHER THE
DEFENSE SHOULD HAVE THE DOCUMENT FOR USE IN CROSS-EXAMINING THE
WITNESS.  UNDER PALERMO, THE TRIAL JUDGE WAS NOT TO ALLOW THE DEFENSE
TO INSPECT THE INTERVIEW REPORT "IN ORDER TO ARGUE WHETHER IT SHOULD BE
ALLOWED TO SEE" IT, SINCE TO DO SO WOULD BE INCONSISTENT WITH THE
CONGRESSIONAL PURPOSE TO LIMIT ACCESS TO GOVERNMENT PAPERS.  SIMILARLY,
STAULA SHOULD NOT HAVE BEEN ALLOWED TO INSPECT THE INTERVIEW REPORT,
SINCE THERE NECESSARILY INHERED IN THE WITNESS' INSPECTION OF THE PAPER
THE OBVIOUS HAZARD THAT HIS SELF-INTEREST MIGHT DEFEAT THE STATUTORY
DESIGN OF REQUIRING THE GOVERNMENT TO PRODUCE PAPERS WHICH ARE
"STATEMENTS" WITHIN THE STATUTE.  FOR EXAMPLE, THE INTERVIEW REPORT
STATES THAT STAULA WAS UNABLE TO GIVE ANY DESCRIPTION OF ONE OF THE
ROBBERS.  THIS IS IN SHARP CONTRAST TO HIS POSITIVE IDENTIFICATION OF
LESTER MADE ON DIRECT EXAMINATION.  EXPERIENCED TRIAL JUDGES AND
LAWYERS WILL READILY UNDERSTAND THE VALUE OF THE USE OF THE REPORT ON
CROSS-EXAMINATION OF THE WITNESS.  BUT THE PETITIONERS WERE DEPRIVED OF
THE OPPORTUNITY TO MAKE USE OF THE REPORT BY THE OBVIOUSLY SELF-SERVING
DECLARATIONS OF THE WITNESS THAT IT DID NOT ACCURATELY RECORD WHAT HE
TOLD THE AGENT. 

MOREOVER, FAILURE OF THE JUDGE TO CALL FOR TOOMEY'S TESTIMONY
FORECLOSED A PROPER DETERMINATION OF THE PETITIONERS' MOTION TO STRIKE
THE WITNESS' TESTIMONY.  IF THE INTERVIEW REPORT WAS NOT THE ORIGINAL
OR A COPY OF THE PAPER STAULA DESCRIBED, AND THAT PAPER WAS DESTROYED,
THE PETITIONERS MIGHT HAVE BEEN DENIED A STATEMENT TO WHICH THEY WERE
ENTITLED UNDER THE STATUTE.  THUS, EVEN IF THE INTERVIEW REPORT ITSELF
WERE PRODUCIBLE, A SITUATION MIGHT HAVE ARISEN CALLING FOR DECISION
WHETHER SUBSECTION (D) OF THE STATUTE REQUIRED THE STRIKING OF THE
TESTIMONY OF THE WITNESS.  THE PARTIES ARGUE WHETHER DESTRUCTION MAY BE
REGARDED AS THE EQUIVALENT OF NONCOMPLIANCE WITH AN ORDER TO PRODUCE
UNDER THAT SUBSECTION.  THE GOVERNMENT CONTENDS THAT ONLY DESTRUCTION
FOR IMPROPER MOTIVES OR IN BAD FAITH SHOULD BE SO REGARDED.  THE
PETITIONERS CONTEND THAT DESTRUCTION WITHOUT REGARD TO THE
CIRCUMSTANCES SHOULD BE SO REGARDED.  HOWEVER, THIS RECORD AFFORDS US
NO OPPORTUNITY TO DECIDE THIS IMPORTANT QUESTION OF THE CONSTRUCTION OF
SUBSECTION (D).  WE DO NOT YET KNOW THAT SUCH A PAPER EXISTED, AND WAS
DESTROYED, OR THE CIRCUMSTANCES OF ITS DESTRUCTION, NOR CAN WE KNOW
WITHOUT THE BENEFIT AT LEAST OF TOOMEY'S TESTIMONY. 

WE CONCLUDE THAT BECAUSE OF THESE ERRORS IN THE CONDUCT OF THE
INQUIRY THE PETITIONERS ARE ENTITLED TO A REDETERMINATION OF THEIR
MOTION FOR THE PRODUCTION OF STAULA'S PRETRIAL STATEMENTS, AND OF THEIR
MOTION TO STRIKE HIS TESTIMONY.  HOWEVER, WE DO NOT THINK THAT THIS
COURT SHOULD VACATE THEIR CONVICTION AND ORDER A NEW TRIAL.  THE
PETITIONERS' RIGHTS CAN BE FULLY PROTECTED BY A REMAND TO THE TRIAL
COURT WITH DIRECTION TO HOLD A NEW INQUIRY CONSISTENT WITH THIS
OPINION.  SEE UNITED STATES V. SHOTWELL MFG. CO., 355 U.S. 233.  THE
DISTRICT COURT WILL SUPPLEMENT THE RECORD WITH NEW FINDINGS AND ENTER A
NEW FINAL JUDGMENT OF CONVICTION IF THE COURT CONCLUDES UPON THE NEW
INQUIRY TO REAFFIRM ITS FORMER RULINGS.  THIS WILL PRESERVE TO THE
PETITIONERS THE RIGHT TO SEEK FURTHER APPELLATE REVIEW ON THE AUGMENTED
RECORD.  ON THE OTHER HAND, IF THE COURT CONCLUDES THAT THE GOVERNMENT
SHOULD HAVE BEEN REQUIRED TO DELIVER THE INTERVIEW REPORT OR OTHER
STATEMENT TO THE PETITIONERS, OR THAT IT SHOULD HAVE GRANTED THEIR
MOTION TO STRIKE STAULA'S TESTIMONY, THE COURT WILL VACATE THE JUDGMENT
OF CONVICTION AND ACCORD THE PETITIONERS A NEW TRIAL. 

THE JUDGMENT OF THE COURT OF APPEALS IS THEREFORE VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  18 U.S.C. SEC. 3500.  DEMANDS FOR PRODUCTION OF STATEMENTS AND
REPORTS OF WITNESSES. 

"(A)  IN ANY CRIMINAL PROSECUTION BROUGHT BY THE UNITED STATES, NO
STATEMENT OR REPORT IN THE POSSESSION OF THE UNITED STATES WHICH WAS
MADE BY A GOVERNMENT WITNESS OR PROSPECTIVE GOVERNMENT WITNESS (OTHER
THAN THE DEFENDANT) TO AN AGENT OF THE GOVERNMENT SHALL BE THE SUBJECT
OF SUBPENA, DISCOVERY, OR INSPECTION UNTIL SAID WITNESS HAS TESTIFIED
ON DIRECT EXAMINATION IN THE TRIAL OF THE CASE. 

"(B)  AFTER A WITNESS CALLED BY THE UNITED STATES HAS TESTIFIED ON
DIRECT EXAMINATION, THE COURT SHALL, ON MOTION OF THE DEFENDANT, ORDER
THE UNITED STATES TO PRODUCE ANY STATEMENT (AS HEREINAFTER DEFINED) OF
THE WITNESS IN THE POSSESSION OF THE UNITED STATES WHICH RELATES TO THE
SUBJECT MATTER AS TO WHICH THE WITNESS HAS TESTIFIED.  IF THE ENTIRE
CONTENTS OF ANY SUCH STATEMENT RELATE TO THE SUBJECT MATTER OF THE
TESTIMONY OF THE WITNESS, THE COURT SHALL ORDER IT TO BE DELIVERED
DIRECTLY TO THE DEFENDANT FOR HIS EXAMINATION AND USE. 

"(C)  IF THE UNITED STATES CLAIMS THAT ANY STATEMENT ORDERED TO BE
PRODUCED UNDER THIS SECTION CONTAINS MATTER WHICH DOES NOT RELATE TO
THE SUBJECT MATTER OF THE TESTIMONY OF THE WITNESS, THE COURT SHALL
ORDER THE UNITED STATES TO DELIVER SUCH STATEMENT FOR THE INSPECTION OF
THE COURT IN CAMERA.  UPON SUCH DELIVERY THE COURT SHALL EXCISE THE
PORTIONS OF SUCH STATEMENT WHICH DO NOT RELATE TO THE SUBJECT MATTER OF
THE TESTIMONY OF THE WITNESS.  WITH SUCH MATERIAL EXCISED, THE COURT
SHALL THEN DIRECT DELIVERY OF SUCH STATEMENT TO THE DEFENDANT FOR HIS
USE.  IF, PURSUANT TO SUCH PROCEDURE, ANY PORTION OF SUCH STATEMENT IS
WITHHELD FROM THE DEFENDANT AND THE DEFENDANT OBJECTS TO SUCH
WITHHOLDING, AND THE TRIAL IS CONTINUED TO AN ADJUDICATION OF THE GUILT
OF THE DEFENDANT, THE ENTIRE TEXT OF SUCH STATEMENT SHALL BE PRESERVED
BY THE UNITED STATES AND, IN THE EVENT THE DEFENDANT APPEALS, SHALL BE
MADE AVAILABLE TO THE APPELLATE COURT FOR THE PURPOSE OF DETERMINING
THE CORRECTNESS OF THE RULING OF THE TRIAL JUDGE.  WHENEVER ANY
STATEMENT IS DELIVERED TO A DEFENDANT PURSUANT TO THIS SECTION, THE
COURT IN ITS DISCRETION, UPON APPLICATION OF SAID DEFENDANT, MAY RECESS
PROCEEDINGS IN THE TRIAL FOR SUCH TIME AS IT MAY DETERMINE TO BE
REASONABLY REQUIRED FOR THE EXAMINATION OF SUCH STATEMENT BY SAID
DEFENDANT AND HIS PREPARATION FOR ITS USE IN THE TRIAL. 

"(D)  IF THE UNITED STATES ELECTS NOT TO COMPLY WITH AN ORDER OF THE
COURT UNDER PARAGRAPH (B) OR (C) HEREOF TO DELIVER TO THE DEFENDANT ANY
SUCH STATEMENT, OR SUCH PORTION THEREOF AS THE COURT MAY DIRECT, THE
COURT SHALL STRIKE FROM THE RECORD THE TESTIMONY OF THE WITNESS, AND
THE TRIAL SHALL PROCEED UNLESS THE COURT IN ITS DISCRETION SHALL
DETERMINE THAT THE INTERESTS OF JUSTICE REQUIRE THAT A MISTRIAL BE
DECLARED. 

"(E)  THE TERM 'STATEMENT,' AS USED IN SUBSECTIONS (B), (C), AND (D)
OF THIS SECTION IN RELATION TO ANY WITNESS CALLED BY THE UNITED STATES,
MEANS: 

"(1) A WRITTEN STATEMENT MADE BY SAID WITNESS AND SIGNED OR OTHERWISE
ADOPTED OR APPROVED BY HIM; OR: 

"(2)  A STENOGRAPHIC, MECHANICAL, ELECTRICAL, OR OTHER RECORDING, OR
A TRANSCRIPTION THEREOF, WHICH IS A SUBSTANTIALLY VERBATIM RECITAL OF
AN ORAL STATEMENT MADE BY SAID WITNESS TO AN AGENT OF THE GOVERNMENT
AND RECORDED CONTEMPORANEOUSLY WITH THE MAKING OF SUCH ORAL
STATEMENT."  ADDED BY PUB. L. 85-269, SEPT. 2, 1957, 71 STAT. 595. 

FN2  THE PERTINENT PARTS OF HIS TESTIMONY ARE AS FOLLOWS: 

"XQ.  NOW, MR. WITNESS, WHEN YOU SAID YOU HAD A CONVERSATION WITH THE
FBI SOME TIME LESS THAN A WEEK AFTER JULY 18, 1957, DID THEY WRITE DOWN
WHAT YOU HAD TO SAY TO THEM? 

"THE COURT:  IF YOU KNOW. 

"THE WITNESS:  YES. 

"XQ.  AND DID THEY READ IT BACK TO YOU, SIR?  A. YES. 

"XQ.  AND DID THEY ASK YOU IF THAT WAS ESSENTIALLY WHAT YOU HAD JUST
RELATED TO THEM?  A. YES. 

"XQ.  AND DID YOU TELL THEM YES?  A. YES. 

     *       *         *         *         * 

"THE COURT:  I WILL ORDER IT PRODUCED.  THERE IS A FOUNDATION LAID
FOR IT. 

*         *         *         *         * 

"THE WITNESS:   ...  HE DIDN'T ACTUALLY ASK ME QUESTIONS.  I MEAN, AT
FIRST I TOLD HIM THE STORY, AND THEN WHEN I GOT THROUGH HE ASKED ME A
FEW QUESTIONS. 

"THE COURT:  WELL, DID HE READ IT BACK TO YOU? 

"THE WITNESS:  I BELIEVE HE DID. 

"THE COURT:  WHAT IS YOUR BEST MEMORY OF IT? 

"THE WITNESS:  I AM PRETTY SURE HE DID. 

"THE COURT:  IS YOUR MEMORY SUCH AS TO ENABLE YOU TO SAY THAT WHAT
WAS READ BACK TO YOU WAS AN ACCURATE STATEMENT OF WHAT YOU TOLD HIM? 

"THE WITNESS:  YES. 

     *    *         *         *         * 

"THE WITNESS:  IF YOU WILL EXCUSE ME, I AM TRYING TO RACK MY BRAIN TO
THINK ABOUT WHAT HAPPENED.  I THINK THEY WROTE DOWN WHAT I SAID, AND
THEN I THINK THEY GAVE IT BACK TO ME TO READ OVER, TO MAKE SURE THAT IT
WAS RIGHT.  AND I THINK I HAD TO SIGN IT.  NOW, I AM NOT SURE.  I
COULDN'T REMEMBER BEFORE  ...  ." 

THE DISTRICT COURT SEALED THE INTERVIEW REPORT FOR THE COURT OF
APPEALS.  THE COURT OF APPEALS RELEASED IT AND IT IS IN THE RECORD
HERE.  THE FULL TEXT IS AS FOLLOWS: 

"FEDERAL BUREAU OF INVESTIGATION INTERVIEW REPORT. 

"MR. DOMINIC STAULA, HOME ADDRESS 259 ISLAND STREET, STOUGHTON,
MASSACHUSETTS, A CUSTOMER AT THE VICTIM BANK, ADVISED THAT HE ARRIVED
AT THE NORFOLK COUNTY TRUST COMPANY IN CANTON, MASSACHUSETTS, TO
TRANSACT SOME BUSINESS AT APPROXIMATELY 10:15 A.M., JULY 18, 1957.  MR.
STAULA STATED THAT HE WAS DRIVING A TRUCK AND PARKED IT BESIDE THE
CANTON DEPOT IN THE PARKING AREA LOCATED BETWEEN THE RAILROAD DEPOT AND
THE BANK.  HE STATED THAT HE NOTED NOTHING UNUSUAL WHEN HE ENTERED THIS
PARKING AREA NOR DID HE NOTICE ANYTHING UNUSUAL IN WALKING FROM WHERE
HE PARKED HIS VEHICLE TO THE BANK. 

"IT WAS STATED BY MR. STAULA THAT HE WENT TO THE TELLER'S WINDOW
WHICH IS SERVED BY MR. KENNEDY AND WHILE STANDING IN LINE AT THIS
WINDOW, BUT BEFORE BEING WAITED UPON BY MR. KENNEDY, HE HEARD SOMEBODY
STATE FROM BEHIND HIM 'OVER AGAINST THE WALL.' 

"MR. STAULA STATED THAT HE LOOKED AROUND AND OBSERVED A MAN WHOM HE
DESCRIBED AS BEING A NEGRO, WEARING GRAY CHINO PANTS, STANIDNG IN THE
CENTER OF THE LOBBY AND HOLDING A GUN.  STAULA STATED THAT HE
IMMEDIATELY REALIZED THAT THE BANK WAS BEING HELD UP AND AT ONCE TOOK
HIS DEPOSITS WHICH CONSISTED OF CASH AND SLID THEM INTO HIS SIDE
TROUSER POCKET. 

"MR. STAULA WENT ON TO STATE THAT HE ONLY OBSERVED THE MAN STANDING
IN THE CENTER OF THE LOBBY FOR AN INSTANT AND COULD GIVE NO FURTHER
DESCRIPTION OF HIM BECAUSE HE TURNED TOWARD THE FRONT OF THE BANK AND
OBSERVED ANOTHER MAN STANDING THERE HOLDING A GUN.  STAULA STATED THAT
HE LOOKED AT THIS MAN FOR A SHORT PERIOD OF TIME AND DESCRIBED HIM AS
FOLLOWS: 

"PROPERTY OF FBI.  - THIS REPORT IS LOANED TO YOU BY THE FBI, AND
NEITHER IT NOR ITS CONTENTS ARE TO BE DISTRIBUTED OUTSIDE THE AGENCY TO
WHICH LOANED. 

SEX        MALE. 

RACE                                       NEGRO. 

AGE                                        APPROXIMATELY 30 YEARS. 

HEIGHT                                     5 FEET 10 INCHES. 

WEIGHT                                     165 POUNDS. 

COMPLEXION                                 VERY DARK. 

BUILD                                      SLENDER. 

FACE                                       ROUND. 

CLOTHING                                   DARK BLUE SUIT. 

                                 BLUE SNAP BRIM HAT. 

                                     WHITE SHIRT. 

"MR. STAULA STATED THAT HE DID NOT OBSERVE A THIRD MAN IN THE BANK. 

"IT WAS STATED BY MR. STAULA THAT HE DID NOT KNOW WHAT TYPE OF GUN
WAS CARRIED BY THESE TWO INDIVIDUALS WHOM HE OBSERVED BUT BELIEVED THAT
THEY COULD HAVE BEEN 45 CALIBER AUTOMATICS. 

"MR. STAULA STATED THAT AFTER TAKING A LOOK AT THE INDIVIDUAL WEARING
THE BLUE SUIT HE FACED THE WALL AS PREVIOUSLY ORDERED AND OBSERVED
THESE INDIVIDUALS NO FURTHER. 

"HE STATED THAT AFTER HE STOOD WITH HIS FACE TO THE WALL FOR
APPROXIMATELY 10 MINUTES ONE OF THE ROBBERS ORDERED HIM AND THE OTHER
PEOPLE WHO WERE STANDING ON EITHER SIDE OF HIM TO WALK INTO THE VAULT. 
HE STATED THAT HE DOES NOT RECALL WHICH OF THE ROBBERS ISSUED THIS
ORDER BUT THAT HE DID ENTER THE VAULT AS DIRECTED AND OBSERVED THESE
INDIVIDUALS NO FURTHER. 

"MR. STAULA STATED THAT ONE OF THE ROBBERS, CLOSED THE DOOR OF THE
VAULT HE ISSUED SOME ORDER TO THE EFFECT THAT THE PEOPLE LOCKED INSIDE
SHOULD NOT LEAVE AND THAT THEY STAYED THERE FOR 5 OR 10 MINUTES UNTIL
THE VAULT DOOR WAS OPENED BY SERGEANT RUANE OF THE CANTON,
MASSACHUSETTS, POLICE DEPARTMENT." 

"INTERVIEW WITH DOMINIC STAULA, FILE #91-952, ON JULY 19, 1957, AT
CANTON, MASSACHUSETTS, BY SPECIAL AGENT JOHN F. TOOMEY, JR., BJP." 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING IN PART AND CONCURRING IN
THE RESULT IN PART. 

WHAT IS THIS CASE?  IN THE COURSE OF A PROSECUTION FOR VIOLATION OF
THE FEDERAL BANK ROBBERY ACT, 18 U.S.C. SEC. 2113, DOMINIC STAULA, A
GOVERNMENT WITNESS, IDENTIFIED DEFENDANT LESTER AS ONE OF THREE MEN
WHOM HE HAD OBSERVED COMMITTING THE ALLEGED OFFENSE.  UPON CROSS
EXAMINATION, HE DISCLOSED THAT, ON ONE OCCASION AT LOCAL POLICE
HEADQUARTERS, HE HAD BEEN INTERVIEWED BY AT LEAST TWO FBI AGENTS.  HE
STATED THAT HE DID NOT SIGN ANY STATEMENTS, BUT ONLY SIGNED "A PIECE OF
PAPER SAYING I WAS IN THE BANK."  ON THE BASIS OF THIS TESTIMONY THE
DEFENSE REQUESTED "THE STATEMENT OF THIS MAN" UNDER THE JENCKS ACT, 18
U.S.C. SEC. 3500, WHICH REQUIRES THAT THE COURT ORDER THE GOVERNMENT TO
PRODUCE "ANY STATEMENT  ...  OF THE WITNESS IN THE POSSESSION OF THE
UNITED STATES WHICH RELATES TO THE SUBJECT MATTER AS TO WHICH THE
WITNESS HAS TESTIFIED."  THE TRIAL JUDGE DENIED THIS REQUEST ON THE
GROUND THAT THE DEFENSE HAD "LAID NO FOUNDATION FOR IT" SINCE "THIS MAN
SAID NOTHING WAS EVER READ BACK TO HIM."  NO EXCEPTION WAS TAKEN TO
THIS RULING.  IN THE CONTINUING CROSS-EXAMINATION THAT FOLLOWED, STAULA
CHANGED HIS TESTIMONY BY RECALLING THAT THE AGENTS HAD WRITTEN DOWN
WHAT HE HAD TOLD THEM, THAT "IT" WAS READ BACK TO HIM, AND THAT HE HAD
TOLD THE AGENTS "IT" WAS "ESSENTIALLY WHAT HE ...  HAD JUST RELATED TO
THEM."  THE JUDGE THEN HELD SUA SPONTE THAT A FOUNDATION HAD BEEN LAID
FOR AN ORDER TO THE GOVERNMENT TO PRODUCE THE DESCRIBED DOCUMENT, AND
ORDERED THE DOCUMENT PRODUCED.  A COLLOQUY AT THE BENCH FOLLOWED, IN
THE COURSE OF WHICH STAULA EXPLAINED TO THE JUDGE THAT SINCE HIS
EARLIER TESTIMONY HE HAD RECOLLECTED WHAT HAD TAKEN PLACE; THAT HE
"BELIEVED" OR WAS "PRETTY SURE" THAT "IT" HAD BEEN READ BACK TO HIM;
THAT WHAT WAS READ BACK WAS AN ACCURATE STATEMENT OF WHAT HE HAD TOLD
THE AGENTS; THAT HE THOUGHT THEY GAVE "IT" BACK TO HIM TO READ OVER AND
THAT HE HAD TO SIGN IT, ALTHOUGH HE WAS NOT "SURE."  GOVERNMENT COUNSEL
STATED AT THE BENCH THAT THE ONLY DOCUMENT IN THEIR POSSESSION WAS A
"SUMMARY OF THE RESULT OF THE INTERVIEW" WHICH REPRESENTED THE FBI
AGENT'S "INTERPRETATION OF WHAT HAPPENED."  THE JUDGE THEN ASKED
WHETHER THE GOVERNMENT POSSESSED "ANY STATEMENT THAT WAS COPIED BY AN
FBI AGENT WHICH IN ANY WAY WOULD REFLECT A STATEMENT THAT THIS WITNESS
MADE AND WHICH HE SUBSTANTIALLY ADOPTED AS THE STATEMENT," TO WHICH
GOVERNMENT COUNSEL REPLIED "NO, YOUR HONOR, WE DON'T."  A MOMENT LATER
THE JUDGE AGAIN ASKED, "HAS THE UNITED STATES IN ITS POSSESSION ANY
NOTES THAT WERE TAKEN DOWN BY THE FBI AGENT AT THE TIME THIS WITNESS
WAS INTERVIEWED?"  GOVERNMENT COUNSEL ANSWERED "I DO NOT HAVE THEM IN
MY POSSESSION AND I DO NOT KNOW WHETHER THEY EVER EXISTED."  THE JUDGE
THEN ASKED FOR AND RECEIVED THE FBI AGENT'S REPORT REFERRED TO BY THE
UNITED STATES ATTORNEY, AND THE CASE WAS ADJOURNED FOR THE DAY. 

THE FOLLOWING MORNING DURING A CONFERENCE HELD IN THE JUDGE'S
CHAMBERS THE GOVERNMENT AGAIN ASSERTED THAT THE AGENT'S REPORT WAS NOT
A COPY OF THE ORIGINAL NOTES, AND THAT THE NOTES WERE NO LONGER IN
EXISTENCE.  A LONG DISCUSSION ENSUED CONCERNING THE PRODUCIBILITY OF
THE AGENT'S REPORT.  DEFENSE COUNSEL SUGGESTED THAT THE FBI AGENT
(TOOMEY) BE CALLED INTO CHAMBERS "TO EXPLAIN WHERE HE GOT THE
DOCUMENT," AND TO "SAY WHAT HE HAS DONE WITH THE ORIGINAL WRITING." 
THIS THE JUDGE DENIED, BUT SUGGESTED THAT THE DEFENDANTS WERE FREE TO
SUBPOENA THE AGENT, OR, MORE SIMPLY, COULD ASK THE GOVERNMENT TO HAVE
THE AGENT MADE AVAILABLE FOR EXAMINATION.  THE JUDGE THEN PROPOSED TO
ASK STAULA, OUT OF THE PRESENCE OF THE JURY, WHETHER THE REPORT WAS A
SUBSTANTIALLY VERBATIM RECITAL OF WHAT HE HAD TOLD THE AGENT, AND, IF
THE ANSWER WERE AFFIRMATIVE, THE REPORT WOULD BE GIVEN TO DEFENDANTS
FOR IMPEACHMENT PURPOSES.  BOTH SIDES OPPOSED THIS MOVE.  THE
GOVERNMENT ARGUED THAT IN ANY EVENT THE REPORT HAD NOT BEEN "RECORDED
CONTEMPORANEOUSLY WITH THE MAKING OF SUCH ORAL STATEMENT," AND
DEFENDANTS' COUNSEL OBJECTED BECAUSE THE IMPEACHMENT VALUE OF THE
REPORT WOULD BE NEGATED BY HAVING THE WITNESS SEE THE DOCUMENT AND
HIMSELF DECIDE WHETHER IT CONFORMED TO WHAT HE HAD TOLD THE FBI.  BUT
STAULA WAS SHOWN THE DOCUMENT.  HE DENIED THAT IT WAS A "SUBSTANTIALLY
VERBATIM RECITAL OF WHAT HE  ...  TOLD AGENT TOOMEY," AND THE JUDGE
THEREUPON DENIED THE DEFENSE ACCESS TO THE DOCUMENT FOR PURPOSES OF
IMPEACHMENT.  THEREUPON DEFENDANTS MOVED THAT, IN ACCORDANCE WITH THE
ACT, STAULA'S ENTIRE TESTIMONY BE STRICKEN BECAUSE THE GOVERNMENT HAD
FAILED TO PRODUCE "THE ORIGINAL DOCUMENT."  THIS MOTION WAS DENIED. 

THE CASE PRESENTS TWO ENTIRELY SEPARATE QUESTIONS UNDER THE JENCKS
ACT, AND THEY SHOULD BE KEPT APART.  FIRST, WHAT ARE THE PROCEDURAL
REQUIREMENTS, UNDER THE JENCKS STATUTE, WHEN COUNSEL FOR THE UNITED
STATES ANNOUNCES THAT HE CANNOT PRODUCE DOCUMENTS FOR WHICH A
FOUNDATION HAS BEEN LAID BECAUSE HE DOES NOT POSSESS THEM AND DOES NOT
KNOW OF THEIR EXISTENCE?  SECONDLY, WAS THE FBI AGENT'S AVAILABLE
REPORT PRODUCIBLE UNDER THE ACT? 

           I. 

TITLE 18 U.S.C. SEC. 3500 REQUIRES THE TRIAL JUDGE, UPON A MOTION BY
THE DEFENDANT, TO "ORDER THE UNITED STATES TO PRODUCE ANY STATEMENT
...  OF THE WITNESS IN THE POSSESSION OF THE UNITED STATES" WHICH IS
RELEVANT TO THE DIRECT TESTIMONY OF THE GOVERNMENT WITNESS.  NOTHING IN
THE LEGISLATIVE HISTORY OF THE ACT REMOTELY SUGGESTS THAT CONGRESS'
INTENT WAS TO REQUIRE THE GTOVERNMENT, WITH PENALIZING CONSEQUENCES, TO
PRESERVE ALL RECORDS AND NOTES TAKEN DURING THE COUNTLESS INTERVIEWS
THAT ARE CONNECTED WITH CRIMINAL INVESTIGATION BY THE VARIOUS BRANCHES
OF THE GOVERNMENT.  THE LEGISLATION NARROWED THE APPLICATION OF OUR
DECISION IN JENCKS V. UNITED STATES, 353 U.S. 657, AS CONSTRUED BY SOME
OF THE LOWER COURTS, PARTLY BY HAVING THE RELEVANCY OF THE MATERIAL
DETERMINED BY THE DISTRICT JUDGE PRIOR TO ITS PRODUCTION.  S. REP. NO.
981, 85TH CONG., 1ST SESS., P. 2. 

PETITIONERS' CONTENTION THAT THE WORDS "IN THE POSSESSION OF" MUST BE
INTERPRETED AS MEANING "POSSESSION AT ANY PRIOR OR PRESENT TIME" MUST
BE REJECTED.  CONGRESS SURELY DID NOT INTEND TO INITIATE A GAME OF
CHANCE WHEREBY THE ADMISSION OF A WITNESS' TESTIMONY IS MADE TO DEPEND
UPON A FILE CLERK'S ACCURACY OR CARE.  SENATOR O'MAHONEY, THE SPONSOR
OF THE BILL, IN ILLUSTRATING THAT HIS MEASURE APPROVED THE ESSENTIAL
BASIS OF THE JENCKS CASE, INTERPRETED JENCKS TO APPLY ONLY WHERE THE
GOVERNMENT "HAD AT THE SAME TIME IN ITS FILES A STATEMENT" PERTINENT TO
A WITNESS' TESTIMONY.  103 CONG. REC. 10120.  SEE ALSO S. REP. NO. 981,
85TH CONG., 1ST SESS., P. 5; H.R. REP. NO. 700, 85TH CONG., 1ST SESS.,
P. 5.  (FN1) 

HERE GOVERNMENT COUNSEL TOLD THE COURT THAT HE DID NOT POSSESS AND
DID NOT KNOW THE WHEREABOUTS OF THE DOCUMENTS WHICH STAULA HAD
DESCRIBED.  THE COURT TODAY HOLDS THAT IT FELL UPON THE DISTRICT JUDGE
TO CONDUCT A FURTHER INVESTIGATION AS TO THE DISPOSITION OF THE
DOCUMENTS, WHEREBY IT BECOMES HIS DUTY TO CALL AND QUESTION THE FBI
AGENT WHO SIGNED THE SUBSEQUENT SUMMARY.  DEFENDANTS DID NOT QUESTION
THE TRUTH OR ACCURACY OF THE RESPONSES OF THE UNITED STATES ATTORNEY AS
TO THE NONEXISTENCE OF THE ORIGINAL NOTES.  DEFENDANTS WERE REPRESENTED
BY TWO COMPETENT LAWYERS WHO WERE ALERT TO PROTECT THEIR CLIENTS'
INTEREST THROUGH ALL AVAILABLE TRIAL PROCEDURES AND TACTICS.  IT SURELY
IS NOT THE DUTY OF A DISTRICT JUDGE TO INVESTIGATE A RESPONSE BY ONE
WHO IS AN OFFICER OF THE COURT AS WELL AS OF THE UNITED STATES ON THE
ASSUMPTION THAT HE HAS INTENTIONALLY OR IRRESPONSIBLY VIOLATED HIS
RESPONSIBILITY TO THE COURT AND THE GOVERNMENT IN CONDUCTING THE
GOVERNMENT'S CASE IN A MANNER CONSISTENT WITH BASIC LEGAL ETHICS AND
PROFESSIONAL CARE. 

HOW DOES THE COURT'S DUTY REGARDING A CLAIM BY DEFENSE UNDER THE
JENCKS STATUTE DIFFER FROM ANY OTHER CLAIM FOR THE PRODUCTION OF A
DOCUMENT?  WE ARE TOLD THAT BECAUSE AGENT TOOMEY WAS READILY AVAILABLE,
IT DEVOLVED ON THE JUDGE INSTEAD OF ON THE DEFENDANTS TO SEEK WHATEVER
LIGHT COULD BE THROWN ON THE MATTER.  IS IT NOW THE DUTY OF THE
DISTRICT JUDGE TO DO ALL THAT A COMPETENT DEFENSE COUNSEL WOULD DO, OR
WOULD CHOOSE, AS A MATTER OF TRIAL JUDGMENT, NOT TO DO?  THE PROCEDURE
NOW SUGGESTED PLACES THE JUDGE IN THE POSITION OF A VOLUNTARY DEFENDER
FOR DEFENDANTS ALREADY ADEQUATELY REPRESENTED.  THIS SEEMS ONLY THE
MORE QUESTIONABLE SINCE IT MAY WELL BE THAT COUNSEL HERE WERE SATISFIED
THAT THE DOCUMENTS HAD BEEN DISPOSED OF IN A BONA FIDE MANNER.  IT IS
NOT THE DUTY OF THIS COURT TO INVENT HYPOTHETICAL SITUATIONS IN WHICH
INDEPENDENT ACTION BY THE DISTRICT JUDGE MIGHT HAVE REVEALED UNEXPECTED
FACTS.  THERE WAS NO SUGGESTION, NOT A HINT - EITHER BEFORE THE TRIAL
COURT, OR BELOW, OR UPON ARGUMENT HERE - THAT THE GOVERNMENT'S
REPRESENTATION OF THE NONEXISTENCE OF THE DOCUMENTS WAS NOT BONA FIDE,
WAS A PIECE OF CHICANE AND AS SUCH A FRAUD UPON THE COURT BRINGING INTO
ACTION THE COURT'S PROTECTION OF ITS DIGNITY AND HONOR, OR A
MANIFESTATION OF PROFESSIONAL INADEQUACY AS TO CALL FOR THE COURT'S
SAFEGUARDING ACTION. 

      II. 

THE OTHER ISSUE PRESENTED BY THE CASE IS THE PRODUCIBILITY OF THE FBI
AGENT'S REPORT WHICH HAD BEEN PUT INTO POSSESSION OF THE COURT. 
SUBSECTION (E) OF THE JENCKS ACT THUS DEFINES THE PAPERS IN THE
GOVERNMENT'S POSSESSION THAT ARE SUBJECT TO PRODUCTION: 

"(1)  A WRITTEN STATEMENT MADE BY SAID WITNESS AND SIGNED OR
OTHERWISE ADOPTED OR APPROVED BY HIM; OR: 

"(2)  A STENOGRAPHIC, MECHANICAL, ELECTRICAL, OR OTHER RECORDING, OR
A TRANSCRIPTION THEREOF, WHICH IS A SUBSTANTIALLY VERBATIM RECITAL OF
AN ORAL STATEMENT MADE BY SAID WITNESS TO AN AGENT OF THE GOVERNMENT
AND RECORDED CONTEMPORANEOUSLY WITH THE MAKING OF SUCH ORAL
STATEMENT." 

THE PLAIN DIFFERENTIATION BETWEEN THE TWO CLAUSES IS THAT THE FORMER
RELATES TO STATEMENTS WRITTEN BY A WITNESS, WHILE THE LATTER
ENCOMPASSES HIS ORAL STATEMENT RECORDED AND TRANSCRIBED BY ANOTHER.  AS
TO THE STATEMENTS THAT THE WITNESS HAD HIMSELF SET DOWN ON PAPER,
CONGRESS DESIRED THAT HIS SIGNATURE OR SOME OTHER FORM OF APPROVAL BE
SHOWN TO ASSURE AUTHENTICITY.  THE REQUIRED APPROVAL WOULD ALSO QUIET
ANY DOUBTS THAT THE WITNESS HAD AN ADEQUATE OPPORTUNITY TO SCRUTINIZE
FOR VERIFICATION THE DOCUMENT WHICH HE HAD PREPARED.  THESE ARE
APPROPRIATE SAFEGUARDS FOR THE USE OF THESE DOCUMENTS AS A BASIS FOR
IMPEACHING THE WITNESS' TESTIMONY ON THE STAND.  AS TO ORAL STATEMENTS,
THE STATUTE PRESCRIBES THAT THEIR CONTENT BE "A SUBSTANTIALLY VERBATIM
RECITAL" OF THE WITNESS' WORDS, RECORDED CONTEMPORANEOUSLY.  "CLEARLY
THIS PROVISION ALLOWS THE PRODUCTION OF MECHANICAL OR STENOGRAPHIC
RECORDINGS OF ORAL STATEMENTS, EVEN THOUGH LATER TRANSCRIBED."  PALERMO
V. UNITED STATES, 360 U.S. 343, 351-352.  PRODUCIBILITY, FOR PURPOSE OF
IMPEACHMENT, OF A STATEMENT DRAWN UP IN THE THIRD PERSON BY AN AGENT
REQUIRES THAT THE WHOLE ORAL STATEMENT BE CONTEMPORANEOUSLY RECORDED. 
UNDER THIS STANDARD, A SUMMARIZATION BY AN AGENT OF SELECTIVE PORTIONS
OF TESTIMONY BY THE WITNESS WOULD NOT FALL WITHIN THE SCOPE OF THE
ACT.  "BEYOND MECHANICAL OR STENOGRAPHIC STATEMENTS  ...  A VERY
RESTRICTIVE STANDARD IS TO BE APPLIED" IN DEFINING WHAT IS A
"STATEMENT" UNDER THE STATUTORY LANGUAGE.  PALERMO V. UNITED STATES,
SUPRA, AT  360.  UNDER SUBSECTION (2), IT MAKES NO DIFFERENCE WHETHER
THESE AGENT SUMMARIES ARE SIGNED OR APPROVED BY THE WITNESS; "THE
LEGISLATION WAS DESIGNED TO ELIMINATE THE DANGER OF DISTORTION AND
MISREPRESENTATION INHERENT IN A REPORT WHICH MERELY SELECTS PORTIONS,
ALBEIT ACCURATELY, FROM A LENGTHY ORAL RECITAL."  PALERMO V. UNITED
STATES, SUPRA, AT 352.  AS THE BILL ORIGINALLY CAME OUT OF THE HOUSE
JUDICIARY COMMITTEE, 103 CONG. REC. 16125, SUCH SUMMARIES WHEN APPROVED
BY THE WITNESS WOULD HAVE BEEN SUBJECT TO PRODUCTION.   H.R. REP. NO.
700, 85TH CONG., 1ST SESS., P. 6.  HOWEVER, THE SUBSEQUENT REVISION OF
THE BILL AS FINALLY ENACTED MAKES CLEAR THAT THOSE STATEMENTS OF A
WITNESS GIVEN ORALLY TO THE GOVERNMENT MUST MEET THE STANDARD OF
"SUBSTANTIALLY VERBATIM" IN ORDER TO BE PRODUCED FOR PURPOSES OF
IMPEACHMENT.  (FN2)  SEE SEE APPENDIX B, PALERMO V. UNITED STATES,
SUPRA, AT 358-360. 

IN PALERMO, WE APPROVED OF THE DISTRICT JUDGE'S HOLDING PRICEEDINGS
IN CAMERA TO DETERMINE WHETHER QUESTIONABLE DOCUMENTS CONSTITUTED
STATUTORY "STATEMENTS."  360 U.S., AT 354.  IT NEEDED NO EXPLICITNESS
TO ESTABLISH THAT THE "SUBSTANTIALLY VERBATIM" TEST WAS TO BE MADE BY
EXTRINSIC PROOF, NOT BY ASKING THE WITNESS HIMSELF WHETHER THE DOCUMENT
IN QUESTION SUBSTANTIALLY CONFORMED TO WHAT HE HAD TOLD THE FEDERAL
AGENTS.  WE AGREE WITH THE COURT THAT THE PROCEDURE IN WHICH THE TRIAL
JUDGE INDULGED WAS ERRONEOUS.  THE WITNESS MIGHT DENY THE ACCURACY OF
THE DOCUMENT IN ORDER TO AVOID IMPEACHMENT; EVEN IF PRODUCED, THE
DOCUMENT LOSES MUCH OF ITS POTENTIALITY FOR IMPEACHMENT IF THE WITNESS
HAS ALREADY EXAMINED ITS CONTENTS. 

BUT THE TRIAL JUDGE'S ERROR IN SUBMITTING, OUT OF HEARING OF THE
JURY, THE INTERVIEW REPORT FOR STAULA'S DETERMINATION OF ITS ACCURACY
WOULD NOT WARRANT REVERSAL IF THAT REPORT PROVES ITSELF, ON ITS FACE,
NOT TO BE A STATUTORY "STATEMENT."  IN PALERMO, THE DOCUMENT WAS A 600
WORD SUMMARY OF A 3 1/2-HOUR CONFERENCE, WHICH WE HELD WAS CLEARLY NOT
A VIRTUALLY VERBATIM TRANSCRIPT.  360 U.S., AT 355, N. 12.  THE
INTERVIEW REPORT HERE COMES TO SLIGHTLY OVER 500 WORDS.  BUT THE RECORD
IS SILENT AS TO THE DURATION OF THE INTERVIEW.  NOR DOES IT DISCLOSE
WHETHER THE INTERVIEW WAS CONTEMPORANEOUSLY RECORDED, (FN3) OR HOW ANY
SUCH RECORDING WAS TRANSCRIBED.  HOWEVER DOUBTFUL IT MAY SEEM, IT MAY
BE THE FACT THAT THE INTERVIEW WAS VERY BRIEF, NOT MORE THAN A FEW
MINUTES, AND THAT THE CONVERSATION AS AN ENTIRETY WAS FAITHFULLY
RECORDED AND CONSTITUTED AN ACCURATE ACCOUNT OF ALL THAT TRANSPIRED. 

IT IS THE RESPONSIBILITY OF COUNSEL FOR DEFENDANTS, AS HAS BEEN
ELUCIDATED, TO PURSUE ASCERTAINMENT OF THE CORRECTNESS OF THE
GOVERNMENT'S CLAIM THAT DOCUMENTS WHICH ARE DEMANDABLE FOR PRODUCTION
UNDER THE JENCKS ACT ARE NO LONGER IN EXISTENCE, AND FOR NO
REPREHENSIBLE REASON CHARGEABLE TO THE GOVERNMENT.  THAT IS AN ISSUE
LIKE ANY OTHER ISSUE OF APPROPRIATE EVIDENTIARY DEMAND.  IT IS NOT FOR
THE COURT TO QUESTION THAT THE FOUNDATION FOR PRODUCTION - HERE, THE
EXISTENCE OF A DOCUMENT - IS WANTING, IF COUNSEL FOR DEFENDANTS DO NOT
QUESTION THE GOVERNMENT'S EXPLANATION FOR NON-PRODUCTION.  A VERY
DIFFERENT ISSUE IS PRESENTED IN DETERMINING THE LEGAL SIGNIFICANCE OF A
DOCUMENT LIKE THE FBI REPORT UNDER THE JENCKS ACT, WHICH IS PRODUCED
FOR THE CONFIDENTIAL INSPECTION OF THE COURT AND NOT SHOWN TO THE
DEFENSE.  HERE THE RESPONSIBILITY FOR RESOLVING THE ISSUE RESTS WITH
THE COURT, AND IT IS THE COURT THAT MUST PURSUE APPROPRIATE MEANS FOR
ASCERTAINING THE FACTS RELEVANT TO JUDGMENT.    THE DISTRICT JUDGE
SHOULD AND EASILY COULD HAVE PROBED THESE MATTERS, VITAL TO
ASCERTAINMENT OF THE JENCKS ACT QUALITY OF THE REPORT, BY INTERROGATING
COUNSEL, OR, AS THE COURT SUGGESTS, EXAMINING AGENT TOOMEY ON THE
CIRCUMSTANCES OF THE INTERVIEW.  (FN4)  SINCE ON THIS RECORD WE CANNOT
SAY THAT THE REPORT WAS PATENTLY NOT PRODUCIBLE UNDER THE ACT, WE HAVE
NO RECOURSE BUT TO REMAND THE MATTER TO THE DISTRICT COURT FOR
DETERMINATION WHETHER THE REPORT MEETS THE REQUIREMENTS OF SUBSECTION
(E)(2).   FN1  THE COURT'S OPINION IMPLIES THAT THE DEFENDANT IS
ENTITLED TO STATEMENTS WHICH THE GOVERNMENT DOES NOT NOW POSSESS, ANTE,
P. 98.  THE ACT PLAINLY SPEAKS ONLY TO A "STATEMENT  ...  OF THE
WITNESS IN THE POSSESSION OF THE UNITED STATES." 

FN2  INSOFAR AS THE COURT'S OPINION SUGGESTS THAT, HAD STAULA SIGNED
THE INTERVIEW REPORT, IT WOULD CONCLUSIVELY HAVE BEEN PRODUCIBLE, WE
DISAGREE.  UNDER THE STATUTORY LANGUAGE, IT STILL WOULD HAVE BEEN
NECESSARY TO FIND THAT THE REPORT WAS "A SUBSTANTIALLY VERBATIM
RECITAL" OF THAT WHICH STAULA TOLD THE AGENTS.  SECTION 3500(E)(1) IS
INAPPLICABLE. 

FN3  ASIDE FROM STAULA'S CONFLICTING TESTIMONY THAT THE AGENT TOOK
NOTES. 

DURING THE PROCEEDINGS IN CHAMBERS, THE GOVERNMENT REPEATEDLY
ASSERTED THAT THE REPORT WAS NOT IN EXISTENCE AT THE TIME STAULA WAS
INTERVIEWED.  ASSUMING THIS TO BE TRUE, IT IS IRRELEVANT; THE QUESTION
IS WHETHER THERE WAS A CONTEMPORANEOUS RECORDING FROM WHICH THE
TRANSCRIPTION WAS LATER MADE.  SEE PALERMO V. UNITED STATES, SUPRA, AT
351-352. 

FN4  CALLING AGENT TOOMEY FOR THIS PURPOSE IS A VERY DIFFERENT THING
FROM REQUIRING THE JUDGE TO CALL HIM IN ORDER TO CONTROVERT THE
GOVERNMENT'S ASSERTION THAT NO OTHER NOTES OR DOCUMENTS WERE IN THEIR
POSSESSION.  THAT WAS FOR THE DEFENSE TO DEAL WITH. 
..END :









MCNEAL V. CULVER 365 U.S. 109 


NO. 52.  ARGUED DECEMBER 6, 1960 - DECIDED JANUARY 23, 1961 - 113 SO. 2D
381, REVERSED. 


UPON AN INFORMATION CHARGING "ASSAULT TO MURDER IN THE FIRST DEGREE,"
PETITIONER WAS TRIED WITHOUT COUNSEL BEFORE A JURY IN A FLORIDA COURT,
CONVICTED OF "ASSAULT TO MURDER IN THE SECOND DEGREE" AND SENTENCED TO
IMPRISONMENT FOR 20 YEARS.  HE DID NOT APPEAL; BUT HE PETITIONED THE
STATE SUPREME COURT FOR A WRIT OF HABEAS CORPUS, ALLEGING THAT HE HAD
BEEN DENIED DUE PROCESS OF LAW, BECAUSE HE WAS AN INDIGENT, IGNORANT
AND MENTALLY ILL NEGRO, INCAPABLE OF CONDUCTING HIS OWN DEFENSE, AND
THAT HE HAD REQUESTED, BUT WAS DENIED, COUNSEL.  THE COURT ISSUED A
PROVISIONAL WRIT; BUT, AFTER CONSIDERING RESPONDENT'S RETURN AND
WITHOUT ANY HEARING ON PETITIONER'S ALLEGATIONS, DISCHARGED THE WRIT
AND REMANDED PETITIONER TO CUSTODY.  THE RECORD CONTAINED MUCH TO
SUPPORT PETITIONER'S ALLEGATIONS, INCLUDING ABUNDANT EVIDENCE OF HIS
IGNORANCE AND HIS INABILITY TO QUESTION WITNESSES AND OTHERWISE CONDUCT
HIS OWN DEFENSE.  IT ALSO CONTAINED FACTS WHICH WOULD HAVE SUGGESTED TO
COUNSEL THAT PETITIONER MIGHT HAVE A GOOD INSANITY DEFENSE, WHICH WAS
NOT RAISED OR CONSIDERED.  MOREOVER, THE RECORD AND THE RELEVANT
FLORIDA STATUTES DISCLOSE THAT THE CASE INVOLVED A NUMBER OF HIGHLY
COMPLEX LEGAL QUESTIONS BEYOND THE COMPREHENSION OF ALMOST ANY LAYMAN. 
HELD:  DUE PROCESS OF LAW REQUIRED THAT PETITIONER HAVE THE ASSISTANCE
OF COUNSEL, IF THE FACTS ALLEGED IN HIS PETITION ARE TRUE, AND IT WAS
INCUMBENT ON THE FLORIDA COURT TO GRANT PETITIONER A HEARING TO
DETERMINE WHAT THE TRUE FACTS WERE.  PP. 110-117. 

MCNEAL V. CULVER, STATE PRISON CUSTODIAN. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

UPON AN INFORMATION CHARGING "ASSAULT TO MURDER IN THE FIRST DEGREE,"
PETITIONER WAS PUT TO TRIAL, WITHOUT COUNSEL, BEFORE A JURY IN A
FLORIDA COURT, WAS CONVICTED OF "ASSAULT TO MURDER IN THE SECOND
DEGREE" AND SENTENCED TO IMPRISONMENT FOR A TERM OF 20 YEARS WHICH HE
IS NOW SERVING.  NO APPEAL WAS TAKEN, BUT WITHIN A YEAR FROM HIS
CONVICTION PETITIONER FILED A PETITION FOR A WRIT OF HABEAS CORPUS IN
THE SUPREME COURT OF FLORIDA. 

IN THAT RATHER INARTFULLY DRAWN PETITION, PREPARED IN THE
PENITENTIARY, AT LEAST THE FOLLOWING ALLEGATIONS WERE MADE WITH
REASONABLE CLARITY:  WHEN BROUGHT BEFORE THE COURT FOR TRIAL,
PETITIONER, AN INDIGENT, IGNORANT AND MENTALLY ILL NEGRO THEN 29 YEARS
OF AGE, ADVISED THE COURT THAT HE WAS WITHOUT, AND UNABLE TO OBTAIN,
COUNSEL TO CONDUCT HIS DEFENSE AND ASKED THAT  COUNSEL BE APPOINTED TO
REPRESENT HIM.  THE JUDGE DECLINED TO DO SO, SAYING (1) "SINCE THIS IS
NOT A CAPITAL OFFENCE YOU ARE NOT ENTITLED TO A COURT APPOINTED
ATTORNEY," AND (2) "YOU WON'T NEED A LAWYER IN THIS CASE." 
IMMEDIATELY, A JURY WAS IMPANELED, THE TRIAL BEGAN, AND PETITIONER WAS
LEFT TO CONDUCT HIS OWN DEFENSE.  BUT, HAVING "NEVER BEFORE APPEARED IN
ANY COURT ON A FELONY, AND  ...  NOT UNDERSTANDING COURT PROCEDURE OR
KNOWING HOW TO DEFEND HIMSELF," PETITIONER WAS UNABLE EFFECTIVELY TO
CONDUCT AND PRESENT HIS DEFENSE, AND, IN CONSEQUENCE, THE COURT'S
DENIAL OF HIS REQUEST FOR COUNSEL DEPRIVED HIM OF DUE PROCESS OF LAW
GUARANTEED BY BOTH THE FLORIDA AND THE UNITED STATES CONSTITUTIONS. 

THE FLORIDA SUPREME COURT ISSUED A PROVISIONAL WRIT OF HABEAS CORPUS
DIRECTING RESPONDENT TO MAKE A PROPER RETURN.  RESPONDENT'S RETURN
DENIED THAT "PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE
COURT'S ALLEGED REFUSAL TO APPOINT COUNSEL IN HIS BEHALF," ATTACHED A
COPY OF (1) A PARTIAL TRANSCRIPT OF PROCEEDINGS AT THE TRIAL, (2) THE
JUDGMENT OF CONVICTION AND SENTENCE, AND (3) THE COMMITMENT, AND
ASSERTED THAT PETITIONER WAS BEING LAWFULLY IMPRISONED UNDER THE LATTER
DOCUMENT.  FINDING NOTHING "IN THIS RECORD OF THE TRIAL TO SHOW WHETHER
OR NOT ANY REQEUST WAS MADE OF THE TRIAL JUDGE TO APPOINT COUNSEL TO
AID THE PETITIONER IN HIS DEFENSE," AND BELIEVING "THAT THE ISSUES WERE
NOT SO COMPLEX, OR THAT THE PETITIONER WAS NOT SO YOUNG, IGNORANT AND
INEXPERIENCED, AS TO BRING INTO PLAY THE EXCEPTION TO THE RULE
REQUIRING APPOINTMENT OF COUNSEL ONLY IN CAPITAL CASES AND TO REQUIRE
FURTHER INQUIRY INTO THE PROCEDURE CULMINATING IN HIS CONVICTION AND
SENTENCE," THE FLORIDA SUPREME COURT, WITHOUT ANY HEARING UPON
PETITIONER'S ALLEGATIONS, DISCHARGED THE WRIT AND REMANDED PETITIONER
TO CUSTODY.  113 SO. 2D 381.  WE GRANTED CERTIORARI TO DETERMINE
WHETHER THE ALLEGATIONS IN THE HABEAS CORPUS PETITION, AS SUPPLEMENTED
BY OTHER PORTIONS OF THE RECORD, ARE SUCH AS ENTITLED HIM TO A FULL
HEARING THEREON, AND, IF SO AND IF THOSE ALLEGATIONS BE FOUND TRUE,
WHETHER PETITIONER WAS DENIED DUE PROCESS OF LAW GUARANTEED BY THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.  362 U.S. 910. 

IT IS THOROUGHLY SETTLED THAT: 

"'WHERE THE GRAVITY OF THE CRIME AND OTHER FACTORS - SUCH AS THE AGE
AND EDUCATION OF THE DEFENDANT, THE CONDUCT OF THE COURT OR THE
PROSECUTING OFFICIALS, AND THE COMPLICATED NATURE OF THE OFFENSE
CHARGED AND THE POSSIBLE DEFENSES THERETO - RENDER CRIMINAL PROCEEDINGS
WITHOUT COUNSEL SO APT TO RESULT IN INJUSTICE AS TO BE FUNDAMENTALLY
UNFAIR,' THE CONSTITUTION REQUIRES THAT THE ACCUSED MUST HAVE LEGAL
ASSISTANCE AT HIS TRIAL."  CASH V. CULVER, 358 U.S. 633, 637, AND CASES
CITED.  (FN1) 

THE RECORD SHOWS THAT PETITIONER WAS INVOLVED IN A MINOR ALTERCATION
WITH THE PROPRIETORS - TWO MEN NAMED SCURRY - OF WHAT IS REFERRED TO AS
A "JOOK," CALLED THE "BLUE CHIP," LOCATED IN THE "COLORED QUARTERS" OF
LAKE WALES, FLORIDA, DURING THE EVENING OF DECEMBER 10, 1957, AND WAS
ORDERED TO LEAVE THE PLACE, WHICH HE DID.  SOON AFTERWARD, PETITIONER,
"WITHOUT SHIRT OR SHOES" AND ARMED WITH A SHOTGUN, APPROACHED THE "BLUE
CHIP" AND, ALTHOUGH A NUMBER OF PERSONS, INCLUDING ONE OF THE SCURRYS,
WERE STANDING ON THE SIDEWALK, PETITIONER FIRED THE GUN IN THEIR
DIRECTION.  SOME OF THE PELLETS STRUCK THE LOWER LEGS OF FOUR PERSONS,
BUT SCURRY WAS NOT HIT.  CITY POLICE OFFICERS IMMEDIATELY ARRESTED
PETITIONER.  THEY STATED THAT, IN THE COURSE OF TRANSPORTING HIM TO
JAIL, PETITIONER SAID THAT "HE WAS SORRY HE SHOT THESE OTHER BOYS, HE
INTENDED TO KILL SCURRY."  ON THIS PREMISE, PETITIONER WAS CHARGED WITH
AND TRIED FOR "ASSAULT TO MURDER IN THE FIRST DEGREE." 

ALTHOUGH THE RECORD DOES NOT DISCLOSE THE EXTENT OF PETITIONER'S
EDUCATION, THERE IS ABUNDANT EVIDENCE THAT IT WAS SLIGHT.  (FN2)
MOREOVER, THE RECORD SHOWS THAT HE SUFFERED HEAD INJURIES IN THE ARMY
IN 1952, AND EVER SINCE HAS BEEN SUBJECT TO "BLACKOUT SPELLS" WHEN
EXCITED.  FOR A PERIOD OF MONTHS FOLLOWING APRIL 8, 1956, HE UNDERWENT
TREATMENT FOR HIS MENTAL CONDITION IN THE VETERANS HOSPITAL AT BAY
PINES, FLORIDA, AND DURING FOUR MONTHS OF THAT PERIOD HE WAS DETAINED
IN THE PSYCHOPATHIC WARD.  IN OCTOBER 1956, HE WAS RELEASED, APPARENTLY
TO HIS MOTHER AS HIS GUARDIAN, (FN3) BUT HE CONTINUED TO RETURN TO THE
HOSPITAL TO "GET PILLS." 

THE RECORD SHOWS THAT PETITIONER WAS INCAPABLE OF QUESTIONING
WITNESSES AND OTHERWISE UNABLE TO CONDUCT HIS DEFENSE.  THE STATE
PRODUCED FOUR WITNESSES - THE COMPLAINING WITNESS, ELLIX SCURRY, AND
THREE POLICE OFFICERS.  PETITIONER ASKED TWO QUESTIONS OF THE WITNESS
SCURRY AND OBTAINED ANSWERS THERETO.  HIS THIRD "QUESTION" WAS
PRECLUDED BY THE JUDGE, ALTHOUGH NOT OBJECTED TO BY THE STATE, BECAUSE
"THAT IS TESTIFYING AND IT ISN'T TIME FOR YOU TO TESTIFY."  PETITIONER
ASKED NO FURTHER QUESTIONS OF SCURRY, DID NOT CROSS-EXAMINE THE OTHER
THREE WITNESSES, NOR DID HE MAKE A SINGLE OBJECTION DURING THE TRIAL. 
WHEN THE STATE RESTED THE JUDGE SAID TO PETITIONER:  "ALL RIGHT, NOW,
ELIJAH, THAT IS THE STATE'S CASE.  IF YOU WANT TO, YOU CAN TAKE THE
STAND AND TELL YOUR SIDE OF IT. IF YOU DON'T WANT TO, YOU DON'T HAVE TO
...  ."  PETITIONER THEN TOOK THE STAND AND, AFTER MENTIONING HIS HEAD
INJURY, "BLACKOUT SPELLS" AND HOSPITAL TREATMENT FOR HIS MENTAL
ILLNESS, TESTIFIED THAT HE MUST HAVE SUFFERED A "BLACKOUT SPELL"
PRECEDING AND DURING THE SHOOTING INCIDENT AS "THAT PART IS A COMPLETE
BLANK," BUT THAT HE IS SURE HE DID NOT "INTEND TO KILL ANYBODY."  HE
THEN ATTEMPTED TO PUT IN EVIDENCE A DOCTOR'S STATEMENT WHICH HE SAID
VERIFIED HIS CLAIM OF SUFFERING "BLACKOUT SPELLS."  ALTHOUGH THE STATE
DID NOT OBJECT, THE JUDGE SAID "THIS STATEMENT WOULD NOT BE
ADMISSIBLE.  YOU COULD PUT THE DOCTOR ON AND HAVE HIM TESTIFY; BUT WE
CANNOT ADMIT ANY STATEMENT LIKE THIS," AND THE STATEMENT WAS NOT
RECEIVED IN EVIDENCE.  AT THE CONCLUSION OF PETITIONER'S TESTIMONY, THE
JUDGE SAID TO PETITIONER:  "NOW, LIGE, IF YOU HAD AN ATTORNEY, HE WOULD
ARGUE THE CASE BEFORE THE JURY" AND ADVISED PETITIONER THAT, IF HE
DESIRED, HE COULD "PLEAD HIS CASE."  PETITIONER REPLIED:  "WELL, SIR, I
DON'T QUITE UNDERSTAND THE MEANING OF THAT," AND HE DID NOT MAKE ANY
ARGUMENT TO THE JURY. 

THESE FACTS TEND STRONGLY TO SHOW THAT PETITIONER'S IGNORANCE,
COUPLED WITH HIS MENTAL ILLNESS AND COMPLETE UNFAMILIARITY WITH THE LAW
AND COURT PROCEDURES, AND THE SCANT, IF ANY, HELP HE RECEIVED FROM THE
COURT, MADE THE TRIAL FUNDAMENTALLY UNFAIR. 

IN ADDITION TO THIS SHOWING OF PETITIONER'S LACK OF EDUCATION AND
MENTAL ILLNESS AND HIS CONSEQUENT INABILITY TO DEFEND HIMSELF, THE
RECORD AT LEAST IMPLICITLY DISCLOSES A NUMBER OF HIGHLY COMPLEX LEGAL
QUESTIONS, BEYOND THE COMPREHENSION OF ALMOST ANY LAYMAN. 

THE FLORIDA ASSAULT LAW APPEARS TO BE REPLETE WITH DISTINCTIONS AND
DEGREES.  MAYHEM, BARE ASSAULT, ASSAULT AND BATTERY, AGGRAVATED ASSAULT
AND ASSAULT WITH INTENT TO COMMIT FELONY ARE ALL STATUTORY OFFENSES. 
(FN4)  ASSAULT WITH INTENT TO COMMIT FELONY - APPARENTLY THE CRIME
INTENDED TO BE CHARGED AGAINST PETITIONER - INCORPORATES BY REFERENCE
ALL FLORIDA FELONIES AND THE DEGREES THEREOF.  (FN5)  THE FLORIDA
HOMICIDE STATUTES APPEAR TO CREATE FOUR SPEARATE OFFENSES -
MANSLAUGHTER, (FN6) AND MURDER IN THE FIRST, SECOND AND THIRD DEGREES. 
(FN7)  IN CONSIDERING THE INTERPLAY BETWEEN HOMICIDE AND ASSAULT WITH
INTENT TO COMMIT FELONY, THE FLORIDA COURTS HAVE HELD THAT, ALTHOUGH
ONE MAY BE GUILTY OF ASSAULT WITH INTENT TO COMMIT MANSLAUGHTER,
LASSITER V. STATE, 98 FLA.  370, 123 SO. 735, THERE IS NO SUCH THING AS
ASSAULT WITH INTENT TO COMMIT MURDER IN THE SECOND OR THIRD DEGREE
BECAUSE - INASMUCH AS THOSE CRIMES DO NOT REQUIRE A FINDING OF "INTENT"
- SUCH WOULD BE "AN ASSAULT WITH INTENT TO COMMIT AN ACT WITHOUT
INTENT."  TILLMAN V. STATE, 81 FLA. 558, 564, 88 SO. 377, 380. 

TO ESTABLISH THE REQUISITE "INTENT" TO COMMIT ANY OF THE GRADES OR
DEGREES OF UNLAWFUL HOMICIDE "IT WILL NOT BE SUFFICIENT TO SHOW THAT
THE KILLING, HAD IT OCCURRED, WOULD HAVE BEEN UNLAWFUL AND A FELONY,
BUT IT MUST BE FOUND THAT THE ACCUSED COMMITTED THE ASSAULT WITH INTENT
TO TAKE LIFE, FOR ALTHOUGH AN UNINTENTIONAL OR INVOLUNTARY KILLING MAY
IN SOME CASES BE UNLAWFUL AND A FELONY, NO MAN CAN INTENTIONALLY DO AN
UNINTENTIONAL ACT; AND WITHOUT THE INTENT THE ASSAULT CAN NOT BE
PUNISHED UNDER THIS STATUTE, EVEN THOUGH THE KILLING, HAD IT BEEN
COMMITTED, WOULD HAVE AMOUNTED TO A FELONY ...  ."  WILLIAMS V. STATE,
41 FLA. 295, 298, 26 SO. 184, 185. 

IF, IN FIRING THE GUN, PETITIONER DID NOT HAVE THIS FELONIOUS "INTENT
TO KILL," HIS GREATEST POSSIBLE CRIME WOULD HAVE BEEN "AGGRAVATED
ASSAULT" - AN ASSAULT "WITH A DEADLY WEAPON, WITHOUT INTENT TO KILL." 
(FN8)  THIS IS NOT AN ACADEMIC DISTINCTION, FOR 15 YEARS' DIFFERENCE IN
PUNISHMENT IS INVOLVED.  (FN9)  THE ONLY TESTIMONY IN THIS RECORD OF
"INTENT TO KILL" WAS THAT OF THE POLICE OFFICERS WHO TESTIFIED THAT
WHILE TRANSPORTING HIM TO JAIL ON THE NIGHT OF THE OCCURRENCE,
PETITIONER STATED THAT HE "INTENDED TO KILL SCURRY."  THAT TESTIMONY
APPEARS TO HAVE BEEN ADMITTED WITHOUT THE SLIGHTEST INQUIRY AS TO
WHETHER THE STATEMENT WAS FREELY AND VOLUNTARILY MADE BY PETITIONER. 
ADMISSION OF THAT CRUCIAL EVIDENCE, IN THOSE CIRCUMSTANCES, SHOWS A
PATENT VIOLATION OF THE FLORIDA LAW WHICH RENDERS INADMISSIBLE ALL
ADMISSIONS MADE TO LAW OFFICERS BY AN ACCUSED WHILE UNDER ARREST UNLESS
THE STATE AFFIRMATIVELY SHOWS THAT THEY WERE FREELY AND VOLUNTARILY
MADE.  LOUETTE V. STATE, 152 FLA. 495, 12 SO. 2D 168; THOMAS V. STATE
(FLA. 1957), 92 SO. 2D 621; WILLIAMS V. STATE (FLA. 1954), 74 SO. 2D
797.  THESE COMPLEX AND INTRICATE LEGAL QUESTIONS WERE OBVIOUSLY
"BEYOND THE KEN OF A LAYMAN."  CASH V. CULVER, SUPRA, AT 638. 

INDEED, IT IS QUESTIONABLE WHETHER SUCH A CRIME AS THE ONE UPON WHICH
PETITIONER WAS CHARGED, TRIED AND CONVICTED - "ASSAULT TO MURDER," NOT
"ASSAULT WITH INTENT TO COMMIT FELONY" - ACTUALLY EXISTS UNDER THE
FLORIDA LAW, WILLIAMS V. STATE, SUPRA, AND IT IS EQUALLY UNCERTAIN
WHETHER THE VERDICT, CONVICTING PETITIONER OF "ASSAULT TO MURDER IN THE
SECOND DEGREE," IS SUFFICIENT TO SUPPORT THE JUDGMENT IN THE LIGHT OF 2
FLA. STAT. 1957, P. 2957, SEC. 921.03, WHICH CONTAINS THE PROVISION
THAT "NO JUDGMENT OF GUILTY SHALL BE RENDERED ON A VERDICT UNLESS THE
JURORS CLEARLY EXPRESS IN IT A FINDING AGAINST THE DEFENDANT UPON THE
ISSUE."  SEE ALSO FRENCH V. STATE, 96 FLA. 657, 118 SO. 815. 

MOREOVER, THE RECORD CONTAINS FACTS WHICH WOULD HAVE INSTANTLY
SUGGESTED TO COUNSEL THAT PETITIONER MIGHT HAVE A GOOD INSANITY
DEFENSE.  "WHEN THERE IS TESTIMONY OF INSANITY SUFFICIENT TO PRESENT A
REASONABLE DOUBT OF SANITY THE PRESUMPTION OF SANITY VANISHES.  THE
DEFENDANT IS THEN ENTITLED TO AN ACQUITTAL IF THE STATE DOES NOT
OVERCOME THE REASONABLE DOUBT."  FARRELL V. STATE (FLA. 1958), 101 SO.
2D 130, 133.  IT IS TOOO MUCH TO EXPECT THIS MENTALLY ILL PETITIONER
EFFECTIVELY TO RAISE AND ESTABLISH THE DEFENSE OF HIS OWN INSANITY,
AND, SO FAR AS THIS RECORD SHOWS, NEITHER THE PROSECUTOR NOR THE TRIAL
COURT TOOK ANY NOTICE OF THE MATTER.  THE QUESTION TREATED IN THE
SEPARATE CONCURRING OPINION ONLY LURKS IN THE RECORD, AS IT WAS NOT
RAISED, BRIEFED OR ARGUED HERE, AND THEREFORE WE DO NOT REACH OR
EXPRESS ANY VIEWS UPON IT. 

FOR THE TOTALITY OF THE REASONS REVIEWED, DUE PROCESS OF LAW REQUIRED
THAT PETITIONER HAVE THE ASSISTANCE OF COUNSEL AT THE TRIAL OF THIS
CASE, IF THE FACTS AND CIRCUMSTANCES ALLEGED IN HIS HABEAS CORPUS
PETITION ARE TRUE.  ON THE PRESENT RECORD IT IS NOT POSSIBLE TO
DETERMINE THEIR TRUTH.   BUT THE ALLEGATIONS THEMSELVES MADE IT
INCUMBENT ON THE FLORIDA COURT TO GRANT PETITIONER A HEARING AND TO
DETERMINE WHAT THE TRUE FACTS ARE.  REVERSED. 

FN1  SUCH IS THE RULE, IN THOSE CIRCUMSTANCES, WHETHER OR NOT THE
ACCUSED REQUESTED THE APPOINTMENT OF COUNSEL.  UVEGES V. PENNSYLVANIA,
335 U.S. 437, 441. 

FN2  THE FOLLOWING STATEMENTS, MADE BY PETITIONER AT HIS TRIAL, ARE
CLEAR EVIDENCE OF HIS LACK OF EDUCATION:  "WHEN I GETS EXCITED, I
BLACKS OUT"; "I HAD IT BECAUSE I THROWED IT DOWN MYSELF"; "  ...
WITHOUT NO SHIRT AND NO SHOES"; "I GOES AND GETS PILLS."    FN3  ON
THIS SCORE PETITIONER TESTIFIED: 

"WHEN I WAS IN THE HOSPITEL, I STAYED OVER THERE FOUR MONTHS LOCKED
IN THE WARD, PSYCHO PART OF IT; AND THE FOUR MONTHS I WAS OVER THERE, I
HAD TO STAY IN THERE LOCKED UP ALL THE TIME.  MAMA WAS THE ONLY ONE
THAT COULD COME AND SEE ME.  AND, WELL, ABOUT THE LATTER PART OF THE
FOUR MONTHS HE GIVE ME A WEEKEND PASS.  HE WAS TRYING ME TO SEE IF I
WOULD COME BACK. 

"AND I WENT HOME AND I COME BACK ON TIME.  AND I ASKED MAMA TO COME
AND SIGN FOR ME AS THAT WAS THE ONLY WAY I COULD GET BACK.  I HAD TO
HAVE A GUARDIAN TO SIGN.  AND SHE COME OVER THERE THAT DAY AND BEGGED
THE DOCTOR TO LET ME GO HOME."    FN4  2 FLA. STAT. 1957, P. 2800,
SECS. 784.01-784.06. 

FN5  2 FLA. STAT. 1957, P. 2800, SEC. 784.06, WHICH PROVIDES: 

"ASSAULT WITH INTENT TO COMMIT FELONY.  - WHOEVER COMMITS AN ASSAULT
ON ANOTHER, WITH INTENT TO COMMIT ANY FELONY PUNISHABLE WITH DEATH OR
IMPRISONMENT FOR LIFE, SHALL BE PUNISHED BY IMPRISONMENT IN THE STATE
PRISON NOT EXCEEDING TWENTY YEARS.  AN ASSAULT WITH INTENT TO COMMIT
ANY OTHER FELONY SHALL BE PUNISHED TO AN EXTENT NOT EXCEEDING ONE-HALF
THE PUNISHMENT WHICH COULD HAVE BEEN INFLICTED HAD THE CRIME BEEN
COMMITTED." 

FN6  2 FLA. STAT. 1957, P. 2798, SEC. 782.07. 

FN7  2 FLA. STAT. 1957, P. 2797, SEC. 782.04. 

FN8  2 FLA. STAT. 1957, P. 2800, SEC. 784.04. 

FN9  FIVE YEARS IS THE MAXIMUM SENTENCE FOR AGGRAVATED ASSAULT UNDER
SEC. 784.04, WHEREAS A 20-YEAR SENTENCE MAY BE IMPOSED FOR ASSAULT WITH
INTENT TO COMMIT FELONY UNDER SEC. 784.06. 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE BRENNAN JOINS, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I REST ALSO ON ANOTHER GROUND
FOR REVERSAL. 

NEARLY 19 YEARS AGO THE COURT HELD IN BETTS V. BRADY, 316 U.S. 455,
THAT A STATE COURT IN A CRIMINAL CASE NEED NOT APPOINT COUNSEL TO
REPRESENT AN INDIGENT DEFENDANT, UNLESS THE FAILURE TO FURNISH COUNSEL
RESULTS IN A CONVICTION LACKING IN "FUNDAMENTAL FAIRNESS."  ID., 473. 
THAT DECISION WAS BY A DIVIDED COURT; AND SIX JUSTICES NOW SIT ON THE
COURT WHO HAD NO HAND IN FASHIONING THE RULE. 

I CANNOT BELIEVE THAT A MAJORITY OF THE PRESENT COURT WOULD AGREE TO
BETTS V. BRADY WERE IT HERE DE NOVO, ESPECIALLY IN LIGHT OF OUR
UNANIMOUS DECISION IN CHANDLER V. FRETAG, 348 U.S. 3, 9, WHERE WE HELD
THAT THE RIGHT OF A DEFENDANT IN A STATE CRIMINAL TRIAL "TO BE HEARD
THROUGH HIS OWN COUNSEL" IS "UNQUALIFIED."  IN THAT CASE AN ACCUSED
REQUESTED A CONTINUANCE SO THAT HE COULD OBTAIN A LAWYER.  WE HELD IT
WAS REVERSIBLE ERROR FOR A STATE COURT TO DENY THE REQUEST AND TO PUT
THE DEFENDANT TO TRIAL WITHOUT COUNSEL.  WE SAID THAT RIGHT TO COUNSEL
TURNED, NOT ON THE NATURE OF THE CRIME CHARGED, BUT ON THE IMPORTANCE
OF THE PRESENCE OF COUNSEL TO AN ACCUSED'S RIGHT TO A HEARING.  WE
RELIED ON POWELL V. ALABAMA, 287 U.S. 45, 68-69: 

"THE RIGHT TO BE HEARD WOULD BE, IN MANY CASES, OF LITTLE AVAIL IF IT
DID NOT COMPREHEND THE RIGHT TO BE HEARD BY COUNSEL.  EVEN THE
INTELLIGENT AND EDUCATED LAYMAN HAS SMALL AND SOMETIMES NO SKILL IN THE
SCIENCE OF LAW  ...  .  HE LACKS BOTH THE SKILL AND KNOWLEDGE
ADEQUATELY TO PREPARE HIS DEFENSE, EVEN THOUGH HE HAVE A PERFECT ONE. 
HE REQUIRES THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE
PROCEEDINGS AGAINST HIM."  (FN1) 

THE RESULT OF OUR DECISIONS IS TO REFUSE A STATE THE POWER TO FORCE A
PERSON INTO A CRIMINAL TRIAL WITHOUT A LAWYER IF HE WANTS ONE AND CAN
AFFORD TO HIRE ONE, BUT TO DENY THE SAME PROTECTION TO AN ACCUSED WHO
IS TOO POOR TO RETAIN COUNSEL.  THIS DRAWS A LINE BETWEEN RICH AND POOR
THAT IS REPUGNANT TO DUE PROCESS.  THE NEED OF COUNSEL IS THE SAME,
WHATEVER THE ECONOMIC STATUS OF THE ACCUSED.  IF DUE PROCESS REQUIRES
THAT A RICH MAN WHO WANTS A LAWYER BE ALLOWED THE OPPORTUNITY TO OBTAIN
ONE BEFORE HE IS TRIED, WHY SHOULD NOT DUE PROCESS GIVE THE SAME
PROTECTION TO THE ACCUSED WHO IS INDIGENT?  EVEN PENNILESS VAGRANTS
(FN2) ARE AT TIMES CAUGHT IN A TANGLE OF LAWS THAT ONLY AN ASTUTE
LAWYER CAN RESOLVE, AS OUR OWN DECISIONS SHOW.  EDWARDS V. CALIFORNIA,
314 U.S. 160; EDELMAN V.CALIFORNIA, 344 U.S. 357; THOMPSON V.
LOUISVILLE, 362 U.S. 199. 

BETTS V. BRADY REQUIRES THE INDIGENT, WHEN CONVICTED IN A TRIAL WHERE
HE HAS NO COUNSEL, TO SHOW THAT THERE WAS FUNDAMENTAL UNFAIRNESS.  WE
HAVE SET ASIDE A NUMBER OF CONVICTIONS SO OBTAINED, AS OUR RECENT
DECISION IN CASH V. CULVER, 358 U.S. 633, 636, N. 6, SHOWS.  YET THIS
IS A HEAVY BURDEN TO CARRY, ESPECIALLY FOR AN ACCUSED WHO HAS NO LAWYER
AND WHO CANNOT AFFORD TO HIRE ONE.  IT IS A BURDEN PLACED ON AN ACCUSED
SOLELY BY REASON OF HIS POVERTY.  ITS ONLY SANCTION IS BETTS V. BRADY
WHICH IS SO AT WAR WITH OUR CONCEPT OF EQUAL JUSTICE UNDER LAW THAT IT
SHOULD BE OVERRULED.  (FN3) ARE WE TO WAIT TO OVERRULE IT UNTIL A CASE
ARISES WHERE THE INDIGENT IS UNABLE TO MAKE A CONVINCING DEMONSTRATION
THAT THE ABSENCE OF COUNSEL PREJUDICED HIM? 

FN1  FOR A SCHOLARLY ACCOUNT OF AN ATTEMPT IN A CONTEMPORARY SOCIETY
TO ABOLISH PROCEDURAL SAFEGUARDS AND PROVIDE "SIMPLE" JUDICIAL SYSTEMS
SEE HAZARD, SETTLING DISPUTES IN SOVIET SOCIETY (1960). 

FN2  THE MANNER OF ADMINISTRATION OF VAGRANCY LAWS AND THEIR
HARSHNESS, DUE IN PART TO THE DENIAL TO THE DRIFTERS IN OUR MIDST OF
THE PROCEDURAL PROTECTIONS WHICH OTHERS OBTAIN, IS VIVIDLY SHOWN IN
FOOTE, VAGRANCY-TYPE LAW AND ITS ADMINISTRATION, 104 U. OF PA. L. REV.
603. 

FN3  IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, MR. JUSTICE BRANDEIS,
WRITING FOR THE COURT, OVERRULED SWIFT V. TYSON, 16 PET. 1.  MR.
JUSTICE BUTLER, SPEAKING FOR HIMSELF AND MR. JUSTICE MCREYNOLDS,
STRENUOUSLY OBJECTED, POINTING OUT THAT THE QUESTION HAD NEVER BEEN
RAISED OR ARGUED, 304 U.S., AT 82, 87, AND ASKING THAT, BEFORE SWIFT V.
TYSON WAS OVERRULED, THE CASE BE PUT DOWN FOR REARGUMENT.  "IT MAY NOT
JUSTLY BE ASSUMED THAT THE LABOR AND ARGUMENT OF COUNSEL FOR THE
PARTIES WOULD NOT DISCLOSE THE RIGHT CONCLUSION AND AID THE COURT IN
THE STATEMENT OF REASONS TO SUPPORT IT."  304 U.S., AT 88.  BUT THE
PROBLEMS CREATED UNDER THE REGIME OF SWIFT V. TYSON WERE AS ABUNDANTLY
CLEAR TO THE COURT FROM ITS SCREENING OF HUNDREDS OF CASES AS ARE THOSE
WHICH BETTS V. BRADY HAS SPAWNED. 

   APPENDIX TO OPINION OF MR. JUSTICE

                 DOUGLAS. 

IN 1942, MR. JUSTICE BLACK APPENDED TO HIS DISSENTING OPINION IN
BETTS V. BRADY, 316 U.S. 455, 477, A COMPILATION OF THE LAWS OF THE
STATES REGARDING THE RIGHT TO APPOINTMENT OF COUNSEL.  THIS APPENDIX
BRINGS THE CLASSIFICATION DOWN TO DATE.  THIRTY-FIVE STATES PROVIDE FOR
APPOINTMENT OF COUNSEL AS OF COURSE ON BEHALF OF AN INDIGENT IN ANY
FELONY CASE; 15 STATES EITHER MAKE NO EXPLICIT PROVISION FOR
APPOINTMENT OF COUNSEL OR MAKE PROVISION THEREFOR ONLY IN CAPITAL CASES
OR LEAVE APPOINTMENT OF COUNSEL TO THE DISCRETION OF THE TRIAL JUDGE. 

A. APPOINTMENT OF COUNSEL FOR INDIGENTS IN ALL FELONY CASES, AS OF
COURSE, BY FORCE OF THE STATE CONSTITUTION, STATUTES, COURT RULE, OR
JUDICIAL DECISION. 

ALASKA:  RULES OF CRIMINAL PROCEDURE, RULE 39(B). 

ARIZONA:  RULES OF CRIMINAL PROCEDURE, RULE 163. 

ARKANSAS:  ARK. STAT. SEC. 43-1203. 

CALIFORNIA:  CALIF. PENAL CODE SEC. 987. 

CONNECTICUT:  GEN. STAT. OF CONN. (1958 REV.) SEC. 54-80.  SEE STATE
V. REID, 146 CONN.  227, 149 A.2D 698. 

GEORGIA:  GA. CONST., ART. I, SEC. I, PAR. V (GA. CODE ANN. SEC. 2
105).  SEE BIBB COUNTY V. HANCOCK, 211 GA. 429, 86 S.E.2D 511. 

IDAHO:  IDAHO CODE ANN. SECS. 19-1512, 19-1513. 

ILLINOIS:  ILL. SUPREME COURT RULES, RULE 26(2), ILL. REV. STAT.
(1959), C. 110, SEC.  101.26(2). 

INDIANA:  IND. CONST., ART. I, SEC. 13.  SEE STATE EX REL. GRECCO V.
ALLEN CIRCUIT COURT, 238 IND. 571, 153 N.E.2D 914. 

IOWA:  IOWA CODE ANN. SEC. 775.4. 

KANSAS:  GEN. STAT. OF KANSAS (1959 SUPP.) SEC. 62-1304. 

KENTUCKY:  KY. CONST., SEC. 11.  SEE CALHOUN V. COMMONWEALTH, 301 KY.
789, 193 S.W.2D 420. 

LOUISIANA:  LA. REV. STAT. SEC. 15-143. 

MASSACHUSETTS:  RULE 10, GENERAL RULES OF THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS, 337 MASS. 813; ANN. LAWS OF MASS., C. 277, SEC. 47. 

MINNESOTA:  MINN. STAT. 1957, SEC. 611.07, AS AMENDED BY MINN. LAWS
1959, C. 383. 

MISSOURI:  MO. REV. STAT. 1949, SEC. 545.820. 

MONTANA:  REV. CODE OF MONTANA SEC. 94-6512. 

NEBRASKA:  REV. STAT. OF NEBRASKA (1943) SEC. 29-1803, AS AMENDED BY
LAWS 1957, C. 104, SEC. 1, C. 107, SEC. 6. 

NEVADA:  NEV. REV. STAT. SEC. 174.120. 

NEW JERSEY:  N.J. CONST., ART. I, PARA. 10; REV. RULES, SEC. 1:12-9. 

NEW MEXICO: N.M. STAT. ANN. (1953 COMP.) SEC. 41-11-2.  CF. CONST.,
ART. II, SEC. 14; SEE STATE V. GARCIA, 47 N.M. 319, 142 P.2D 552. 

NEW YORK:  N.Y. CODE OF CRIMINAL PROCEDURE SEC. 308. 

NORTH DAKOTA:  N.D. CENTURY CODE SEC. 29-01-27. 

OHIO:  OHIO REV. CODE SEC. 2941.50. 

OKLAHOMA:  22 OKLA. STAT. SEC. 464. 

OREGON:  ORE.  REV.  STAT. SEC. 135.320. 

SOUTH DAKOTA:  S.D. CODE SEC. 34.3506; S.D. CODE (1960 SUPP.) SEC.
34.1901. 

TENNESSEE:  TENN. CODE SECS. 40-2002, 40-2003. 

TEXAS:  VERNON'S TEXAS CODE OF CRIMINAL PROCEDURE SEC. 494, AS
AMENDED BY ACTS 1959, 56TH LEG., P. 1061, C. 484, SEC. 1. 

UTAH:  UTAH CODE ANN. SEC. 77-22-12. 

VIRGINIA:  CODE OF VA. SEC. 19.1-241. 

WASHINGTON:  REV. CODE OF WASH. SEC. 10.01.110. 

WEST VIRGINIA:  RULE OF PRACTICE FOR TRIAL COURTS, RULE IV. 

WISCONSIN:  CARPENTER V. DANE COUNTY, 9 WIS. 274.  SEE WIS. STAT.
ANN. SEC. 957.26. 

WYOMING:  WYO. STAT. SEC. 7-7. 

B. STATES NOT MAKING PROVISION FOR APPOINTMENT OF COUNSEL FOR
INDIGENTS IN ALL FELONY CASES. 

ALABAMA:  CODE OF ALA., TIT. 15, SEC. 318 (CAPITAL CASES).  SEE
GILCHRIST V. STATE, 234 ALA. 73, 173 SO. 651. 

COLORADO:  COLO. REV. STAT. SEC. 39-7-29.  SEE KELLEY V. PEOPLE, 120
COLO. 1, 206 P.2D 337. 

DELAWARE:  SUPERIOR COURT RULES - CRIMINAL RULE 44 (CAPITAL CASES AND
"ANY OTHER CASE IN WHICH THE COURT DEEMS IT APPROPRIATE").  FLORIDA:
FLA. STAT. SEC. 909.21 (CAPITAL CASES).  SEE WATSON V. STATE, 142 FLA.
218, 194 SO. 640. 

HAWAII:  REV. LAWS OF HAWAII (1955) SEC. 253-5, AS AMENDED BY LAWS
1957, ACT 239 (IN FORCE AFTER STATEHOOD, SEE CONST., ART. XVI, SEC.
2). 

MAINE:  ME. REV. STAT., C. 148, SEC. 11 (CAPITAL CASES AND WHERE
SENTENCE OF LIFE IMPRISONMENT MAY BE IMPOSED, OTHERWISE PERMISSIVE). 

MARYLAND:  MD. RULES OF PROCEDURE, CRIMINAL CAUSES, RULE 723, SEC. B
(IN ALL CAPITAL CASES AND OTHER "SERIOUS CASES"). 

MICHIGAN:  MICH. COMP. LAWS, 1948, SEC. 775.16, AS AMENDED BY PUBLIC
ACTS 1957, NO. 256.  SEE PEOPLE V. WILLIAMS, 225 MICH. 133, 195 N.W.
818. 

MISSISSIPPI:  MISS.  CODE ANN. (REC. 1956) SEC. 2505 ("CAPITAL
CRIME"). 

NEW HAMPSHIRE:  N.H. REV. STAT. SECS. 604:1, 604:2 (CAPITAL CRIMES OR
OTHER CASES WHERE "INJUSTICE MAY BE DONE IF PROVISION IS NOT MADE
THEREFOR"). 

NORTH CAROLINA:  N.C. GEN. STAT. SEC. 15-4.1.  SEE STATE V. DAVIS,
248 N.C. 318, 103 S.E.2D 289. 

PENNSYLVANIA:  PURDON'S PA. STAT., TIT. 19, SECS. 783, 784 (CAPITAL
CASES). 

RHODE ISLAND:  GEN. LAWS OF RHODE ISLAND SEC. 12-15-3.  SEE STATE V.
HUDSON, 55 R.I.  141, 179 A. 130; LEE V. KINDELAN, 80 R.I. 212, 95 A.2D
51. 

SOUTH CAROLINA:  S.C. CODE OF LAWS SEC. 17-507 (CAPITAL CASES).  SEE
STATE V. HOLLMAN, 232 S.C. 489, 102 S.E.2D 873. 

VERMONT:  13 VT. STAT. ANN. SEC. 6503.  SEE STATE V. GOMEZ, 89 VT.
490, 96 A. 190. 
..END :
























NATIONAL LABOR RELATIONS BOARD V. MATTISON MACHINE WORKS 365 U.S. 123 


NO. 74.  ARGUED JANUARY 9, 1961 - DECIDED JANUARY 23, 1961 - 274 F.2D
347, REVERSED AND CAUSE REMANDED. 


THE COURT OF APPEALS ERRED IN REFUSING TO ENFORCE AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD IN A REPRESENTATION ELECTION SOLELY
BECAUSE ITS NOTICES OF ELECTION CONTAINED A MINOR AND UNCONFUSING
MISTAKE IN THE EMPLOYER'S CORPORATE NAME.  PP. 123-124. 

NATIONAL LABOR RELATIONS BOARD V. MATTISON MACHINE WORKS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE
REMANDED TO THE COURT FOR THE ENTRY OF A DECREE ENFORCING THE BOARD'S
ORDER.  THE REFUSAL OF THE COURT OF APPEALS TO ENFORCE THAT ORDER
BECAUSE THE BOARD'S NOTICES OF ELECTION CONTAINED A MINOR AND
UNCONFUSING MISTAKE IN THE EMPLOYER'S CORPORATE NAME, WAS PLAIN ERROR. 
IT WAS WELL WITHIN THE BOARD'S PROVINCE TO FIND, AS IT DID, UPON THE
RECORD BEFORE IT THAT THIS OCCURRENCE HAD NOT AFFECTED THE FAIRNESS OF
THE REPRESENTATION ELECTION, PARTICULARLY IN THE ABSENCE OF ANY
CONTRARY SHOWING BY THE EMPLOYER, UPON WHOM THE BURDEN OF PROOF RESTED
IN THIS RESPECT.  THAT FINDING SHOULD HAVE BEEN ACCEPTED BY THE COURT
OF APPEALS.  IN THE ABSENCE OF PROOF BY THE EMPLOYER THAT THERE HAS
BEEN PREJUDICE TO THE FAIRNESS OF THE ELECTION SUCH TRIVIAL
IRREGULARITIES OF ADMINISTRATIVE PROCEDURE DO NOT AFFORD A BASIS FOR
DENYING ENFORCEMENT TO AN OTHERWISE VALID BOARD ORDER. 
..END :




















UNITED STATES V. PARKE, DAVIS & CO. 365 U.S. 125 


NO. 526.  DECIDED JANUARY 23, 1961 - F. SUPP. - , JUDGMENT VACATED AND
CAUSE REMANDED. 


HOLDING THAT THE GOVERNMENT'S PROOFS WERE SUFFICIENT TO SHOW THAT
RESPONDENT HAD VIOLATED THE SHERMAN ACT, THIS COURT REVERSED THE
DISTRICT COURT'S JUDGMENT DISMISSING THE COMPLAINT AND REMANDED THIS
CASE WITH DIRECTIONS TO AFFORD RESPONDENT A FURTHER OPPORTUNITY TO
SUBMIT EVIDENCE TO REFUTE THE GOVERNMENT'S RIGHT TO INJUNCTIVE RELIEF. 
362 U.S. 29.  ON REMAND, RESPONDENT INTRODUCED EVIDENCE, NOT TO REBUT
THE GOVERNMENT'S PROOF AS TO VIOLATION BUT ONLY TO SHOW THAT IT HAD
ABANDONED ITS ILLEGAL SALES POLICY AND THAT, THEREFORE, AN INJUNCTION
WAS NOT NECESSARY.  THE DISTRICT COURT ENTERED AN ORDER DENYING NOT
ONLY INJUNCTIVE RELIEF BUT ALSO AN ADJUDICATION THAT RESPONDENT HAD
VIOLATED THE LAW.  HELD:  THE GOVERNMENT IS ENTITLED TO A JUDGMENT ON
THE MERITS, AND THE DISTRICT COURT SHOULD RETAIN THE CASE ON THE DOCKET
FOR FUTURE ACTION IF THE GOVERNMENT APPLIES FOR FURTHER RELIEF FROM AN
ALLEGED RESUMPTION BY RESPONDENT OF ILLEGAL ACTIVITY.  PP. 125-126. 

UNITED STATES V. PARKE, DAVIS & CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

WHEN THIS CASE WAS LAST HERE WE HELD THAT THE GOVERNMENT'S PROOFS
WERE SUFFICIENT TO SHOW THAT PARKE DAVIS VIOLATED THE SHERMAN ACT. 
HOWEVER, IN REVERSING THE DISTRICT COURT'S JUDGMENT WE REMANDED THE
CASE WITH DIRECTION TO AFFORD PARKE DAVIS A FURTHER OPPORTUNITY TO
SUBMIT EVIDENCE IN DEFENSE IN ORDER TO REFUTE THE GOVERNMENT'S RIGHT TO
INJUNCTIVE RELIEF.  UNITED STATES V. PARKE, DAVIS & CO., 362 U.S. 29,
49.  ON REMAND, PARKE DAVIS INTRODUCED EVIDENCE NOT TO REBUT THE
GOVERNMENT'S PROOF AS TO VIOLATION BUT ONLY TO SHOW THAT IT HAD
ABANDONED ITS ILLEGAL SALES POLICY, AND THAT THEREFORE AN INJUNCTION,
BEING UNNECESSARY, SHOULD NOT ISSUE.  ON THAT RECORD THE DISTRICT COURT
ENTERED AN ORDER DENYING NOT ONLY THE INJUNCTIVE RELIEF SOUGHT BY THE
GOVERNMENT, BUT ALSO AN ADJUDICATION THAT PARKE DAVIS HAD VIOLATED THE
LAW.  THE PRESENT APPEAL IS NOT FROM THE PROVISION WHICH DENIES
INJUNCTIVE RELIEF, BUT FROM THE OMISSION OF A PROVISION ADJUDGING THAT
PARKE DAVIS VIOLATED THE ACT.  WE HAVE EXAMINED THE RECORD AS
SUPPLEMENTED ON THE REMAND AND HOLD THAT UNDER OUR PRIOR ORDER THE
GOVERNMENT IS ENTITLED TO A JUDGMENT ON THE MERITS, AS PRAYED IN
PARAGRAPH 1 OF THE SECTION OF THE COMPLAINT CAPTIONED "PRAYER."  WE
ALSO HOLD THAT THE DISTRICT COURT SHOULD RETAIN THE CASE ON THE DOCKET
FOR FUTURE ACTION IN THE EVENT THE GOVERNMENT APPLIES FOR FURTHER
RELIEF FROM AN ALLEGED RESUMPTION BY PARKE DAVIS OF ILLEGAL ACTIVITY. 
THE ORDER OF THE DISTRICT COURT FILED JULY 18, 1960, IS THEREFORE
VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTION
TO ENTER JUDGMENT ACCORDINGLY.  IT IS SO ORDERED. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE FRANKFURTER AGREES, WOULD
PLACE THIS CASE ON THE SUMMARY CALENDAR FOR ARGUMENT, POSTPONING THE
MERITS CONSIDERATION OF THE QUESTION OF JURISDICTION RAISED BY THE
RESPONDENT. 
..END :

















TRAVIS V. UNITED STATES 364 U.S. 631 


NO. 10.  ARGUED DECEMBER 13, 1960.  - DECIDED JANUARY 16, 1961.  - 269
F.2D 928, REVERSED.  - 268 F.2D 218 AND 280 F.2D 430, JUDGMENTS
VACATED. 


PETITIONER WAS INDICTED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLORADO UNDER 18 U.S.C. SEC. 1001 FOR MAKING AND EXECUTING
IN COLORADO AND FILING WITH THE NATIONAL LABOR RELATIONS BOARD IN
WASHINGTON, D.C., UNDER SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT,
AS IT THEN STOOD, FALSE AFFIDAVITS THAT HE WAS NOT A MEMBER OF THE
COMMUNIST PARTY AND WAS NOT AFFILIATED WITH IT. THE AFFIDAVITS WERE
EXECUTED BY PETITIONER AS A UNION OFFICER IN COLORADO AND MAILED THERE
TO THE BOARD IN WASHINGTON, D.C., WHERE THEY WERE RECEIVED AND FILED. 
NOTWITHSTANDING A TIMELY OBJECTION TO THE VENUE, PETITIONER WAS TRIED
AND CONVICTED IN COLORADO.  HELD:  VENUE LAY ONLY IN THE DISTRICT OF
COLUMBIA, WHERE SEC. 9(H) AND THE BOARD'S REGULATIONS REQUIRED THE
AFFIDAVITS TO BE "ON FILE WITH THE BOARD," AND THE JUDGMENT IS
REVERSED.  PP. 632-637. 

(A)  THE WORDS OF SEC. 9(H), "UNLESS THERE IS ON FILE WITH THE
BOARD," SUGGEST THAT THE FILING MUST BE COMPLETED BEFORE THERE IS A
"MATTER WITHIN THE JURISDICTION" OF THE BOARD, WITHIN THE MEANING OF 18
U.S.C. SEC. 1001, AND SEC. 9(H) MAKES THE CRIMINAL PENALTY APPLICABLE
ONLY TO AFFIDAVITS "ON FILE WITH THE BOARD."  PP. 635-636. 

(B)  WHEN 18 U.S.C. SEC. 3237 IS READ IN THE LIGHT OF THE
CONSTITUTIONAL REQUIREMENTS AND THE EXPLICIT PROVISION OF SEC. 9(H),
THE LOCUS OF THE OFFENSE HAS BEEN CAREFULLY SPECIFIED, AND ONLY THE
SINGLE ACT OF HAVING A FALSE STATEMENT "ON FILE WITH THE BOARD" IS
PENALIZED.  PP. 636-637. 

TRAVIS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE (FN1) PETITIONER WAS CHARGED ON FOUR COUNTS OF AN
INDICTMENT WITH THE MAKING AND FILING OF FALSE NON-COMMUNIST AFFIDAVITS
(FN2) REQUIRED BY SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE TAFT-HARTLEY ACT, 61 STAT. 136, 146, AND FURTHER AMENDED
BY THE ACT OF OCT. 22, 1951, SEC. 1(D), 65 STAT. 601, 602.  THE
INDICTMENT CHARGED THAT THE AFFIDAVITS WERE FALSE WRITINGS OR DOCUMENTS
MADE AND EXECUTED IN COLORADO AND FILED IN WASHINGTON, D.C., WITH THE
NATIONAL LABOR RELATIONS BOARD. 

PETITIONER WAS CONVICTED AND ON APPEAL THE JUDGMENT OF CONVICTION WAS
REVERSED FOR A NEW TRIAL.  247 F.2D 130.  PETITIONER WAS TRIED A SECOND
TIME AND AGAIN CONVICTED.  THIS TIME THE JUDGMENT WAS AFFIRMED ON
APPEAL, ONE JUDGE DISSENTING.  269 F.2D 928.  THE CASE IS HERE ON A
WRIT OF CERTIORARI.  363 U.S. 801. 

BEFORE THE FIRST TRIAL, PETITIONER MOVED TO DISMISS THE INDICTMENT ON
THE GROUND THAT VENUE WAS IMPROPERLY LAID IN COLORADO.  THE DISTRICT
COURT DENIED THE MOTION.  ALTHOUGH THE COURT OF APPEALS REVERSED ON
ANOTHER GROUND ON PETITIONER'S FIRST APPEAL, IT SPECIFICALLY APPROVED
THE LAYING OF VENUE IN COLORADO (247 F.2D 130, 133-134) RECOGNIZING
THAT ITS RULING WAS IN CONFLICT WITH THAT IN UNITED STATES V. VALENTI,
207 F.2D 242 (C.A. 3D CIR.).  IT IS SOLELY TO THIS ISSUE THAT WE
ADDRESS OURSELVES. 

IT IS AGREED THAT THE AFFIDAVITS WERE EXECUTED BY PETITIONER AS A
UNION OFFICER IN COLORADO AND MAILED THERE TO THE BOARD IN WASHINGTON,
D.C., WHERE THEY WERE RECEIVED AND FILED.  (FN3)  THE PROSECUTION
CONTENDS - AND IT WAS HELD BELOW - THAT THE OFFENSE WAS BEGUN IN
COLORADO AND COMPLETED IN THE DISTRICT OF COLUMBIA.  IN THAT VIEW VENUE
WAS PROPERLY LAID IN COLORADO BY VIRTUE OF 18 U.S.C. SEC. 3237(A) WHICH
PROVIDES: 

"EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY ENACTMENT OF CONGRESS, ANY
OFFENSE AGAINST THE UNITED STATES BEGUN IN ONE DISTRICT AND COMPLETED
IN ANOTHER ...  MAY BE INQUIRED OF AND PROSECUTED IN ANY DISTRICT IN
WHICH SUCH OFFENSE WAS BEGUN  ...  OR COMPLETED." 

WE START WITH THE PROVISION OF ART. III, SEC. 2 OF THE CONSTITUTION
THAT CRIMINAL TRIALS "SHALL BE HELD IN THE STATE WHERE THE SAID CRIMES
SHALL HAVE BEEN COMMITTED," A SAFEGUARD REINFORCED BY THE COMMAND OF
THE SIXTH AMENDMENT THAT THE CRIMINAL TRIAL SHALL BE BEFORE AN
IMPARTIAL JURY OF "THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE
BEEN COMMITTED."  WE START ALSO WITH THE ASSUMPTION THAT COLORADO, THE
RESIDENCE OF PETITIONER, MIGHT OFFER CONVENIENCES AND ADVANTAGES TO HIM
WHICH A TRIAL IN THE DISTRICT OF COLUMBIA MIGHT LACK.  WE ARE ALSO
AWARE THAT VENUE PROVISIONS IN ACTS OF CONGRESS SHOULD NOT BE SO FREELY
CONSTRUED AS TO GIVE THE GOVERNMENT THE CHOICE OF "A TRIBUNAL
FAVORABLE" TO IT.  UNITED STATES V. JOHNSON, 323 U.S. 273, 275.  WE
THEREFORE BEGIN OUR INQUIRY FROM THE PREMISE THAT QUESTIONS OF VENUE
ARE MORE THAN MATTERS OF MERE PROCEDURE.  "THEY RAISE DEEP ISSUES OF
PUBLIC POLICY IN THE LIGHT OF WHICH LEGISLATION MUST BE CONSTRUED." 
UNITED STATES V. JOHNSON, SUPRA, 276. 

WHERE VARIOUS DUTIES ARE IMPOSED, SOME TO BE PERFORMED AT A DISTANT
PLACE, OTHERS AT HOME, THE COURT HAS ALLOWED THE PROSECUTION TO FIX THE
FORMER AS THE VENUE OF TRIAL.  JOHNSTON V. UNITED STATES, 351 U.S. 215,
222.  THE USE OF AGENCIES OF INTERSTATE COMMERCE ENABLES CONGRESS TO
PLACE VENUE IN ANY DISTRICT WHERE THE PARTICULAR AGENCY WAS USED. 
ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56.  "THE CONSTITUTIONAL
REQUIREMENT IS AS TO THE LOCALITY OF THE OFFENSE AND NOT THE PERSONAL
PRESENCE OF THE OFFENDER."  ID., AT 76.  WHERE THE LANGUAGE OF THE ACT
DEFINING VENUE HAS BEEN CONSTRUED TO MEAN THAT CONGRESS CREATED A
CONTINUING OFFENSE, IT IS HELD, FOR VENUE PURPOSES, TO HAVE BEEN
COMMITTED WHEREVER THE WRONGDOER ROAMED.  UNITED STATES V. CORES, 356
U.S. 405.  AND SEE BROWN V. ELLIOTT, 225 U.S. 392.  THE DECISIONS ARE
DISCRETE, EACH LOOKING TO THE NATURE OF THE CRIME CHARGED.  THUS, WHILE
THE USE OF THE MAILS MIGHT BE THOUGHT TO ALLOW VENUE TO BE LAID EITHER
AT THE SENDING OR RECEIVING END, THE TRIAL WAS RECENTLY RESTRICTED TO
THE DISTRICT OF THE SENDER, IN LIGHT OF THE CONSTITUTIONAL PROVISIONS
ALREADY MENTIONED AND THE PHRASING OF A PARTICULAR CRIMINAL STATUTE. 
UNITED STATES V. JOHNSON, SUPRA, 277-278.  WHERE CONGRESS IS NOT
EXPLICIT, "THE LOCUS DELICTI MUST BE DETERMINED FROM THE NATURE OF THE
CRIME ALLEGED AND THE LOCATION OF THE ACT OR ACTS CONSTITUTING IT." 
UNITED STATES V. ANDERSON, 328 U.S. 699, 703. 

ARE CONCERNED, DID NOT REQUIRE UNION OFFICERS TO FILE NON-COMMUNIST
AFFIDAVITS.  IF IT HAD, THE WHOLE PROCESS OF FILING, INCLUDING THE USE
OF THE MAILS, MIGHT LOGICALLY BE CONSTRUED TO CONSTITUTE THE OFFENSE. 
BUT THIS STATUTORY DESIGN IS DIFFERENT.  IT REQUIRES THAT THE BOARD
SHALL MAKE NO INVESTIGATION NOR ISSUE ANY COMPLAINT IN THE MATTERS
DESCRIBED IN SEC. 9(H) "UNLESS THERE IS ON FILE WITH THE BOARD" A NON
COMMUNIST AFFIDAVIT OF EACH UNION OFFICER.  THE FILINGS ARE CONDITIONS
PRECEDENT TO A UNION'S USE OF THE BOARD'S PROCEDURES.  LEEDOM V.
INTERNATIONAL UNION, 352 U.S. 145, 148.  THE FALSE STATEMENT STATUTE,
(FN5) UNDER WHICH THE PROSECUTION IS BROUGHT, PENALIZES HIM WHO
KNOWINGLY MAKES ANY "FALSE" STATEMENT "IN ANY MATTER WITHIN THE
JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES."  THERE
WOULD SEEM TO BE NO OFFENSE, UNLESS PETITIONER COMPLETED THE FILING IN
THE DISTRICT OF COLUMBIA.  THE STATUTE DEMANDED THAT THE AFFIDAVITS BE
ON FILE WITH THE BOARD BEFORE IT COULD EXTEND HELP TO THE UNION; THE
FORMS PRESCRIBED BY THE BOARD REQUIRED THE FILING IN THE DISTRICT OF
COLUMBIA; THE INDICTMENT CHARGED THAT PETITIONER FILED THE AFFIDAVITS
THERE.  THE WORDS OF THE ACT - "UNLESS THERE IS ON FILE WITH THE BOARD"
- SUGGEST TO US THAT THE FILING MUST BE COMPLETED BEFORE THERE IS A
"MATTER WITHIN THE JURISDICTION" OF THE BOARD WITHIN THE MEANING OF THE
FALSE STATEMENT STATUTE.  (FN6)  WHEN SEC. 9(H) PROVIDES THE CRIMINAL
PENALTY, (FN7) IT MAKES THE PENAL PROVISIONS APPLICABLE "TO SUCH
AFFIDAVITS," VIZ., TO THOSE "ON FILE WITH THE BOARD." 

THE GOVERNMENT ADMITS THAT THE FILING IS NECESSARY TO THE
"OCCURRENCE" OF THE OFFENSE, BUT IT ARGUES THAT THE OFFENSE HAS ITS
"BEGINNING" IN COLORADO, BECAUSE IT WAS THERE THAT "THE DEFENDANT HAD
IRREVOCABLY SET IN MOTION AND PLACED BEYOND HIS CONTROL THE TRAIN OF
EVENTS WHICH WOULD NORMALLY RESULT (AND HERE DID RESULT) IN THE
CONSUMMATION OF THE OFFENSE."  WE DO NOT AGREE WITH THIS ANALYSIS. 
VENUE SHOULD NOT BE MADE TO DEPEND ON THE CHANCE USE OF THE MAILS, WHEN
CONGRESS HAS SO CAREFULLY INDICATED THE LOCUS OF THE CRIME.  AFTER
MAILING, THE AFFIDAVIT MIGHT HAVE BEEN LOST; PETITIONER HIMSELF MIGHT
HAVE RECALLED IT.  (FN8)  MULTIPLE VENUE IN GENERAL REQUIRES CRIMES
CONSISTING OF "DISTINCT PARTS" OR INVOLVING "A CONTINUOUSLY MOVING
ACT."  UNITED STATES V. LOMBARDO, 241 U.S. 73, 77.  WHEN A PLACE IS
EXPLICITLY DESIGNATED WHERE A PAPER MUST BE FILED, A PROSECUTION FOR
FAILURE TO FILE LIES ONLY AT THAT PLACE.  ID., AT 76-78.  THE THEORY OF
THAT CASE WAS FOLLOWED IN UNITED STATES V. VALENTI, SUPRA, WHERE JUDGE
MARIS STATED THAT NO FALSE STATEMENT HAS BEEN MADE WITHIN THE
JURISDICTION OF THE BOARD "UNTIL THE AFFIDAVIT THROUGH ITS FILING HAS
BECOME THE BASIS FOR ACTION BY THE BOARD."  ID., AT 244. 

WE THINK THAT IS THE CORRECT VIEW WHEN 18 U.S.C. SEC. 3237 IS READ IN
LIGHT OF THE CONSTITUTIONAL REQUIREMENTS AND THE EXPLICIT PROVISION OF
SEC. 9(H).  THE LOCUS OF THE OFFENSE HAS BEEN CAREFULLY SPECIFIED; AND
ONLY THE SINGLE ACT OF HAVING A FALSE STATEMENT AT A SPECIFIED PLACE IS
PENALIZED.  THE RATIONALE OF UNITED STATES V. LOMBARDO, SUPRA, A CASE
INVOLVING A FAILURE TO FILE, IS THEREFORE EQUALLY APPLICABLE HERE.  WE
CONCLUDE THAT VENUE LAY ONLY IN THE DISTRICT OF COLUMBIA. 

PETITIONER ALSO BROUGHT HERE TWO COMPANION CASES ARISING OUT OF THE
SAME TRIAL.  IN NO. 3 HE ASKED FOR A NEW TRIAL ON THE GROUND OF NEWLY
DISCOVERED EVIDENCE.  IN NO. 71 HE MOVED A SECOND TIME FOR A NEW TRIAL
ON THE GROUND OF NEWLY DISCOVERED EVIDENCE.  WE GRANTED THE PETITIONS
IN THESE CASES AS THEY WERE PROTECTIVE OF PETITIONER'S RIGHTS IN THE
MAIN LITIGATION.  363 U.S. 801.  BUT SINCE OUR HOLDING IN THE MAIN CASE
IS THAT VENUE WAS IMPROPERLY LAID IN COLORADO, THE JUDGMENT OF
CONVICTION MUST BE SET ASIDE.  ACCORDINGLY THE ORDERS IN NOS. 3 AND 71
DENYING NEW TRIALS HAVE BECOME MOOT AND ARE VACATED IN THE CUSTOMARY
MANNER.  IN NO. 10 THE JUDGMENT IS REVERSED. 

FN1  THERE ARE TWO COMPANION CASES, NO. 3, TRAVIS V. UNITED STATES,
AND NO. 71, TRAVIS V. UNITED STATES, IN WHICH WE ALSO GRANTED
CERTIORARI AND WHICH PRESENT PHASES OF THE MAIN CASE.  WE DISCUSS THEM
NEAR THE CLOSE OF THE OPINION. 

FN2  THIS SECTION, WHICH WAS REPEALED BY SEC. 201(D) OF THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 519, 525,
PROVIDED: 

"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 10, UNLESS THERE IS ON
FILE WITH THE BOARD AN AFFIDAVIT EXECUTED CONTEMPORANEOUSLY OR WITHIN
THE PRECEDING TWELVE-MONTH PERIOD BY EACH OFFICER OF SUCH LABOR
ORGANIZATION AND THE OFFICERS OF ANY NATIONAL OR INTERNATIONAL LABOR
ORGANIZATION OF WHICH IT IS AN AFFILIATE OR CONSTITUENT UNIT THAT HE IS
NOT A MEMBER OF THE COMMUNIST PARTY OR AFFILIATED WITH SUCH PARTY, AND
THAT HE DOES NOT BELIEVE IN, AND IS NOT A MEMBER OF OR SUPPORTS ANY
ORGANIZATION THAT BELIEVES IN OR TEACHES, THE OVERTHROW OF THE UNITED
STATES GOVERNMENT BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL
METHODS.  THE PROVISIONS OF SECTION 35A OF THE CRIMINAL CODE SHALL BE
APPLICABLE IN RESPECT TO SUCH AFFIDAVITS." 

OF JUNE 25, 1948, 62 STAT. 683, 862, AND IS NOW COVERED, SO FAR AS WE
ARE NOW CONCERNED, BY 18 U.S.C. SEC. 1001, WHICH PROVIDES: 

"WHOEVER, IN ANY MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR
AGENCY OF THE UNITED STATES KNOWINGLY AND WILLFULLY FALSIFIES, CONCEALS
OR COVERS UP BY ANY TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKES
ANY FALSE, FICTITIOUS OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR
MAKES OR USES ANY FALSE WRITING OR DOCUMENT KNOWING THE SAME TO CONTAIN
ANY FALSE, FICTITIOUS OR FRAUDULENT STATEMENT OR ENTRY, SHALL BE FINED
NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR
BOTH." 

FN3  UNDER THE REGULATIONS IN FORCE AT THE TIME OF FILING,
PETITIONER'S AFFIDAVIT WAS REQUIRED TO BE ON FILE WITH THE GENERAL
COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD IN WASHINGTON, D.C.  29
CFR SEC. 101.3(B) (SINCE DELETED, SEE 24 FED. REG. 7501 (SEPT. 17,
1959)). 

FN4  SEE NOTE 2, SUPRA. 

FN5  SEE 18 U.S.C. SEC. 1001, NOTE 2, SUPRA. 

FN6  SEE 18 U.S.C. SEC. 1001, NOTE 2, SUPRA. 

FN7  SEE NOTE 2, SUPRA. 

FN8  39 CFR SEC. 43.6(A) PROVIDES:  "MAIL DEPOSITED IN A POST OFFICE
MAY BE RECALLED BY THE SENDER, BY THE PARENT OR GUARDIAN OF A MINOR
CHILD, OR BY THE GUARDIAN OF A PERSON OF UNSOUND MIND." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
CLARK JOIN, DISSENTING. 

TITLE 18 U.S.C. SEC. 3237(A) PROVIDES IN PERTINENT PART: 

"EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY ENACTMENT OF CONGRESS, ANY
OFFENSE AGAINST THE UNITED STATES BEGUN IN ONE DISTRICT AND COMPLETED
IN ANOTHER  ...  MAY BE INQUIRED OF AND PROSECUTED IN ANY DISTRICT IN
WHICH SUCH OFFENSE WAS BEGUN  ...  OR COMPLETED." 

ON MY VIEW OF THE OFFENSE WITH WHICH TRAVIS IS CHARGED, I THINK THAT
UNDER THIS SECTION THE GOVERNMENT WAS ENTITLED TO PROCEED EITHER IN
COLORADO, WHERE THIS AFFIDAVIT WAS MADE, OR IN THE DISTRICT OF
COLUMBIA, WHERE THE AFFIDAVIT WAS FILED, AND THEREFORE DISSENT FROM THE
COURT'S HOLDING THAT VENUE WAS IMPROPERLY LAID IN COLORADO. 

TAFT-HARTLEY ACT, (FN1) 61 STAT. 136, 146, PROVIDED THAT THE NATIONAL
LABOR RELATIONS BOARD SHALL NEITHER MAKE AN INVESTIGATION NOR ISSUE ANY
COMPLAINT ON BEHALF OF A LABOR UNION UNLESS THERE IS ON FILE WITH IT A
NON-COMMUNIST AFFIDAVIT OF THE KIND HERE IN QUESTION.  18 U.S.C. SEC.
1001 (FN2) IS SPECIFICALLY MADE APPLICABLE TO SUCH AFFIDAVITS.  THAT
THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES, TO
FALSIFY A MATERIAL FACT, MAKE A FALSE STATEMENT, OR MAKE OR USE ANY
FALSE WRITING OR DOCUMENT.  THE ELEMENTS OF THE CRIME HERE INVOLVED,
THEREFORE, ARE SET OUT IN 18 U.S.C. SEC. 1001, AND WHAT SEC. 9(H) DOES
IS SIMPLY TO SUPPLY THE "JURISDICTION OF  ...  AN AGENCY OF THE UNITED
STATES" REQUIRED BY SEC. 1001. 

IF THIS CRIME MAY PROPERLY BE VIEWED AS HAVING BEEN BEGUN IN THE
DISTRICT OF COLORADO AND COMPLETED IN THE DISTRICT OF THE DISTRICT OF
COLUMBIA, THEN VENUE MAY BE LAID IN EITHER DISTRICT UNDER 18 U.S.C.
SEC. 3237(A).  WHETHER THAT IS THE PROPER VIEW OF THIS OFFENSE IS AN
ISSUE ON WHICH THE AUTHORITIES IN THIS COURT ARE AT BEST INCONCLUSIVE. 
IN IN RE PALLISER, 136 U.S. 257, THE COURT HELD THAT WHERE THE
DEFENDANT HAD MAILED IN NEW YORK TO A POSTMASTER IN CONNECTICUT A
LETTER WHICH CONSTITUTED A PROHIBITED TENDER OF A CONTRACT WITH INTENT
TO INDUCE THE POSTMASTER TO VIOLATE HIS LAWFUL DUTY, VENUE COULD
PROPERLY BE LAID IN THE DISTRICT OF CONNECTICUT.  THE COURT EXPRESSLY
LEFT OPEN THE QUESTION OF WHETHER VENUE MIGHT ALSO HAVE BEEN LAID IN
NEW YORK, 136 U.S., AT 267-268.  TO THE SAME EFFECT IS BURTON V. UNITED
STATES, 202 U.S. 344.  UNITED STATES V. LOMBARDO, 241 U.S. 73, WHICH
THE COURT CONSIDERS PARTICULARLY SIGNIFICANT, IS NOT CONTROLLING, SINCE
IN THAT CASE THE OFFENSE CHARGED WAS THE FAILURE TO FILE WITH THE
COMMISSIONER GENERAL OF IMMIGRATION CERTAIN INFORMATION CONCERNING AN
ALIEN WOMAN WHOM THE DEFENDANT WAS HARBORING FOR PURPOSES OF
PROSTITUTION.   IN SUCH A CHARGE IT IS DIFFICULT TO SEE HOW THE
DEFENDANT DOES ANYTHING AT ALL EXCEPT AT THE PLACE WHERE HE FAILS TO
FILE.  BUT CF. UNITED STATES V. CORES, 356 U.S. 405.  IN CONTRAST, THE
FALSE AFFIDAVIT IN THE PRESENT CASE FIRST CAME INTO EXISTENCE IN
COLORADO, HAVING BEEN MADE AND SWORN TO THERE. 

NOR DO THE OPINIONS IN THE LOWER COURTS ESTABLISH ANYTHING LIKE A
CLEAR LINE OF AUTHORITY FROM WHICH IT WOULD BE UNWISE NOW TO DEPART. 
IF ANYTHING, I THINK, THEY INDICATE A CONTRARY CONCLUSION TO THAT NOW
REACHED BY THE COURT.  COMPARE HENSLEE V. UNITED STATES, 262 F.2D 750;
UNITED STATES V. MILLER, 246 F.2D 486; DE ROSIER V. UNITED STATES, 218
F.2D 420; UNITED STATES V. DOWNEY, 257 F. 366, AND BRIDGEMAN V. UNITED
STATES, 140 F. 577, WITH UNITED STATES V. VALENTI, 207 F.2D 242. 

IN THESE CIRCUMSTANCES, THE PROPER COURSE TO FOLLOW APPEARS TO ME TO
BE TO DETERMINE THE APPROPRIATE VENUE "FROM THE NATURE OF THE CRIME
ALLEGED AND THE LOCATION OF THE ACT OR ACTS CONSTITUTING IT," UNITED
STATES V. ANDERSON, 328 U.S. 699, 703, AND THAT DETERMINATION SHOULD
TAKE INTO ACCOUNT THAT: 

"  ...  THE PROVISION FOR TRIAL IN THE VICINITY OF THE CRIME IS A
SAFEGUARD AGAINST THE UNFAIRNESS AND HARDSHIP INVOLVED WHEN AN ACCUSED
IS PROSECUTED IN A REMOTE PLACE.  PROVIDED ITS LANGUAGE PERMITS, THE
ACT IN QUESTION SHOULD BE GIVEN THAT CONSTRUCTION WHICH WILL RESPECT
SUCH CONSIDERATIONS."  UNITED STATES V. CORES, 356 U.S. 405, 407. 

IN THIS KIND OF CASE, PROSECUTION IN THE DISTRICT IN WHICH THE
AFFIDAVIT WAS EXECUTED, MOST OFTEN I WOULD SUPPOSE THE PLACE WHERE THE
UNION OFFICES ARE LOCATED, IS MORE LIKELY TO RESPECT THE BASIC POLICY
OF THE SIXTH AMENDMENT THAN WOULD A PROSECUTION IN THE DISTRICT WHERE
THE AFFIDAVIT WAS FILED.  THE WITNESSES AND RELEVANT CIRCUMSTANCES
SURROUNDING THE CONTESTED ISSUES IN SUCH CASES MORE PROBABLY WILL BE
FOUND IN THE DISTRICT OF THE EXECUTION OF THE AFFIDAVIT THAN AT THE
PLACE OF FILING WHICH, AS IN THIS INSTANCE, WILL OFTEN BE FOR THE
DEFENDANT "A REMOTE PLACE," UNITED STATES V. CORES, SUPRA - THAT IS THE
DISTRICT OF COLUMBIA WHERE THE HEADQUARTERS OF THE NATIONAL LABOR
RELATIONS BOARD ARE LOCATED IN THE CASE OF OFFICERS OF INTERNATIONAL
UNIONS, OR ELSEWHERE THROUGHOUT THE COUNTRY WHERE THE BOARD HAS BRANCH
OFFICES IN THE CASE OF LOCAL UNION OFFICERS, 29 CFR SEC. 101.3. 

THIS IS NOT TO SAY THAT VENUE MUST BE LIMITED TO THE PLACE OF
EXECUTION OF THE AFFIDAVIT, BUT ONLY THAT THERE IS NO LACK OF
CONSONANCE WITH THE UNDERLYING POLICY OF THE SIXTH AMENDMENT IN
PERMITTING VENUE TO BE LAID THERE IF THE ELEMENTS OF THE CRIME ALLOW. 
UNITED STATES V. ANDERSON, SUPRA.  IN HOLDING THAT THE CRIME FOR WHICH
THIS PETITIONER WAS PROSECUTED DOES NOT ALLOW VENUE TO BE LAID IN THE
DISTRICT OF THE MAKING OF THE AFFIDAVIT, THE COURT CONSIDERS THE
ESSENCE OF THE CRIME TO BE THE FILING OF THE AFFIDAVIT, AND UNTIL THAT
IS ACCOMPLISHED IT HOLDS THAT THE CRIME IS NOT EVEN BEGUN.  BUT SINCE
IT IS 18 U.S.C.  SEC. 1001 WHICH DEFINES THE OFFENSE, SEC. 9(H) ONLY
SUPPLYING THE REQUISITE JURISDICITON OF THE AGENCY OF THE UNITED
STATES, AND SINCE BY SEC. 1001 THE OFFENSE CONSISTS OF FALSIFYING A
MATERIAL FACT, MAKING A FALSE STATEMENT, OR MAKING OR USING ANY FALSE
WRITING OR DOCUMENT, IT SEEMS EMINENTLY REASONABLE TO CONSIDER THAT THE
OFFENSE IS AT LEAST DEFINITIVELY BEGUN AT THE PLACE WHERE THE FALSE
AFFIDAVIT IS ACTUALLY MADE, SWORN AND SUBSCRIBED.  CF. THE HENSLEE,
MILLER, DE ROSIER, DOWNEY AND BRIDGEMAN CASES, SUPRA. 

IT IS OF COURSE TRUE THAT THE OFFENSE IS NOT COMPLETED UNTIL THE
AFFIDAVIT IS FILED WITH THE BOARD, BUT I DO NOT THINK IT ADDS ANYTHING
TO SAY, AS THE COURT DOES, THAT UNTIL SUCH TIME AS THE AFFIDAVIT IS
FILED WITH THE BOARD THERE IS NO MATTER "WITHIN THE JURISDICTION OF ANY
DEPARTMENT OR AGENCY OF THE UNITED STATES."  THE FACT THAT THE FILING
COMPLETES THE OFFENSE BY GIVING THE BOARD JURISDICTION OVER THE MATTER
DOES NOT, IN MY VIEW, DETRACT FROM THE CONCLUSION THAT THE OFFENSE WAS
BEGUN WHEN AND WHERE THE AFFIDAVIT WAS EXECUTED.  INDEED THIS WOULD
SEEM TO BE THE VERY TYPE OF SITUATION CONTEMPLATED BY 18 U.S.C. SEC.
3237(A). 

SINCE I CONSIDER IT WOULD BE INAPPROPRIATE FOR ME, IN DISSENT, TO
DISCUSS ISSUES WHICH THE COURT DOES NOT REACH, I REFRAIN FROM
CONSIDERING THE OTHER GROUNDS FOR REVERSAL URGED BY THE PETITIONER. 

FN1  "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
THERE IS ON FILE WITH THE BOARD AN AFFIDAVIT EXECUTED CONTEMPORANEOUSLY
OR WITHIN THE PRECEDING TWELVE-MONTH PERIOD BY EACH OFFICER OF SUCH
LABOR ORGANIZATION AND THE OFFICERS OF ANY NATIONAL OR INTERNATIONAL
LABOR ORGANIZATION OF WHICH IT IS AN AFFILIATE OR CONSTITUENT UNIT THAT
HE IS NOT A MEMBER OF THE COMMUNIST PARTY OR AFFILIATED WITH SUCH
PARTY, AND THAT HE DOES NOT BELIEVE IN, AND IS NOT A MEMBER OF OR
SUPPORTS ANY ORGANIZATION THAT BELIEVES IN OR TEACHES, THE OVERTHROW OF
THE UNITED STATES GOVERNMENT BY FORCE OR BY ANY ILLEGAL OR
UNCONSTITUTIONAL METHODS.  THE PROVISIONS OF 18 U.S.C. SEC. 1001 SHALL
BE APPLICABLE IN RESPECT TO SUCH AFFIDAVITS."  29 U.S.C. SEC. 159 (H),
REPEALED BY THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959,
73 STAT. 519, SEC. 201(D). 

FN2  "WHOEVER, IN ANY MATTER WITHIN THE JURISDICTION OF ANY
DEPARTMENT OR AGENCY OF THE UNITED STATES KNOWINGLY AND WILLFULLY
FALSIFIES, CONCEALS OR COVERS UP BY ANY TRICK, SCHEME, OR DEVICE A
MATERIAL FACT, OR MAKES ANY FALSE, FICTITIOUS OR FRAUDULENT STATEMENTS
OR REPRESENTATIONS, OR MAKES OR USES ANY FALSE WRITING OR DOCUMENT
KNOWING THE SAME TO CONTAIN ANY FALSE, FICTITIOUS OR FRAUDULENT
STATEMENT OR ENTRY, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED
NOT MORE THAN FIVE YEARS, OR BOTH." 
..END :
























SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES' DEPARTMENT, AFL-CIO V.
WRIGHT 364 U.S. 642 


NO. 48.  ARGUED DECEMBER 5, 1960 - DECIDED JANUARY 16, 1961 - 272 F.2D
56, REVERSED. 


IN 1945, WHEN THE RAILWAY LABOR ACT PROHIBITED UNION-SHOP AGREEMENTS
BETWEEN RAILROADS AND LABOR UNIONS, NONUNION EMPLOYEES OF A RAILROAD
BROUGHT A SUIT AGAINST THE RAILROAD AND CERTAIN UNIONS OF ITS EMPLOYEES
WHICH RESULTED IN A CONSENT DECREE FORBIDDING THE DEFENDANTS TO
DISCRIMINATE AGAINST NONUNION EMPLOYEES BECAUSE OF THEIR REFUSAL TO
JOIN UNIONS.  AFTER THE ACT WAS AMENDED IN 1951 SO AS TO PERMIT UNION
SHOP AGREEMENTS BETWEEN RAILROADS AND LABOR UNIONS, THE PETITIONER
UNIONS MOVED THAT THE DECREE BE MODIFIED SO AS NOT TO PROHIBIT THE
DEFENDANTS FROM ENTERING INTO SUCH AGREEMENTS.  THE DISTRICT COURT,
WHICH HAD RETAINED JURISDICTION OF THE SUIT, DENIED THE MOTION.  HELD:
IT ERRED IN DOING SO.  PP. 643-653. 

(A)  IT WOULD HAVE BEEN AN ABUSE OF DISCRETION TO DENY MODIFICATION
OF THE INJUNCTION HAD IT NOT RESULTED FROM A CONSENT DECREE, SINCE A
CHANGE IN THE LAW HAD EXPRESSLY MADE LAWFUL WHAT HAD THERETOFORE BEEN
FORBIDDEN.  PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., 18 HOW. 
421.  PP. 646-650. 

(B)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT THE
INJUNCTION WAS INCORPORATED IN A CONSENT DECREE, SINCE THE DECREE WAS A
JUDICIAL ACT AND NOT A MERE CONTRACT BETWEEN THE PARTIES.  PP. 650
651. 

(C)  IT WAS THE RAILWAY LABOR ACT, AND ONLY INCIDENTALLY THE PARTIES,
THAT THE DISTRICT COURT SERVED IN ENTERING THE CONSENT DECREE; AND THAT
COURT MUST BE FREE TO CONTINUE TO FURTHER THE OBJECTIVES OF THE ACT
AFTER ITS PROVISIONS HAVE BEEN AMENDED.  PP. 651-653. 

SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES' DEPARTMENT, AFL-CIO, ET AL.
V. WRIGHT ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

BY A COMPLAINT FILED ON JULY 16, 1945, IN THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF KENTUCKY, 28 NONUNION EMPLOYEES OF
THE LOUISVILLE AND NASHVILLE RAILROAD BEGAN AN ACTION FOR DECLARATORY
RELIEF, AN INJUNCTION, AND DAMAGES AGAINST THE RAILROAD AND A NUMBER OF
UNIONS REPRESENTING ITS EMPLOYEES.  PARTICULARLY RELEVANT TO THE
COMPLAINT WERE THOSE PROVISIONS OF THE FOURTH AND FIFTH PARAGRAPHS OF
SEC. 2 OF THE RAILWAY LABOR ACT (FN1) WHICH MAKE IT: 

"UNLAWFUL FOR ANY CARRIER TO INTERFERE IN ANY WAY WITH THE
ORGANIZATION OF ITS EMPLOYEES, OR TO USE THE FUNDS OF THE CARRIER IN
MAINTAINING OR ASSISTING OR CONTRIBUTING TO ANY LABOR ORGANIZATION,
LABOR REPRESENTATIVE, OR OTHER AGENCY OF COLLECTIVE BARGAINING, OR IN
PERFORMING ANY WORK THEREFOR, OR TO INFLUENCE OR COERCE EMPLOYEES IN AN
EFFORT TO INDUCE THEM TO JOIN OR REMAIN OR NOT TO JOIN OR REMAIN
MEMBERS OF ANY LABOR ORGANIZATION  ...  ." 

AND WHICH FORBID ANY CARRIER FROM REQUIRING "ANY PERSON SEEKING
EMPLOYMENT TO SIGN ANY CONTRACT OR AGREEMENT PROMISING TO JOIN  ...  A
LABOR ORGANIZATION  ...  ."  ALSO RELIED UPON WAS THE DUTY OF THE
EXCLUSIVE BARGAINING AGENT TO REPRESENT FAIRLY AND WITHOUT
DISCRIMINATION ALL MEMBERS OF THE CLASS REPRESENTED.  SEE STEELE V.
LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192.  THE FACTUAL ALLEGATIONS
SET FORTH A PATTERN OF DISCRIMINATIONS EFFECTED BY THE RAILROAD AND THE
DEFENDANT UNIONS AGAINST NONUNION EMPLOYEES. 

BY A SETTLEMENT AGREEMENT DATED DECEMBER 1, 1945, THE 28 PLAINTIFFS
RELEASED THE RAILROAD AND UNION DEFENDANTS FROM ALL CLAIMS (FN2) OR
ACTIONS THEN ACCRUED "IN CONSIDERATION OF THE SUM OF $5000.00 THIS DAY
PAID TO THE UNDERSIGNED  ...  AND THE CONSENT OF SAID DEFENDANTS TO THE
ENTRY OF A DECREE IN SAID ACTION, A COPY OF WHICH IS ATTACHED HERETO
...  ."  THE ATTACHED DECREE WAS ADOPTED BY THE DISTRICT COURT ON
DECEMBER 7, 1945.  AFTER DETAILING AND THEN ENJOINING A NUMBER OF
SPECIFIC DISCRIMINATIONS ON THE BASIS OF UNION STATUS, THE DECREE
PROVIDED THAT THE DEFENDANTS: 

"ARE FURTHER ENJOINED, IN THE APPLICATION OF THE PROVISIONS OF THE
REGULARLY ADOPTED BARGAINING AGREEMENTS IN EFFECT BETWEEN THE DEFENDANT
RAILROAD AND THE DEFENDANT UNIONS, OR THAT MAY BE HEREAFTER IN EFFECT
BETWEEN THE DEFENDANT RAILROAD AND THE DEFENDANT UNIONS IN ACCORDANCE
WITH THE PROVISIONS OF THE RAILWAY LABOR ACT, FROM DISCRIMINATING
AGAINST THE PLAINTIFFS AND THE CLASSES REPRESENTED BY THEM IN THIS
ACTION BY REASON OF OR ON ACCOUNT OF THE REFUSAL OF SAID EMPLOYES TO
JOIN OR RETAIN THEIR MEMBERSHIP IN ANY OF DEFENDANT LABOR
ORGANIZATIONS, OR ANY LABOR ORGANIZATION ... ." 

THE DISTRICT COURT RETAINED JURISDICTION OVER THE MATTER "FOR THE
PURPOSE OF ENTERING SUCH FURTHER ORDERS AS MAY BE DEEMED NECESSARY OR
PROPER." 

IN 1951 THE RAILWAY LABOR ACT WAS AMENDED TO PERMIT, UNDER CERTAIN
CIRCUMSTANCES, A CONTRACT REQUIRING A UNION SHOP.  (FN3)  IN ORDER TO
AVAIL THEMSELVES OF THE NEWLY GRANTED STATUTORY PRIVILEGE, IN 1957 THE
PETITIONERS FILED IN THE DISTRICT COURT A MOTION UNDER RULE 60(B) OF
THE FEDERAL RULES OF CIVIL PROCEDURE (FN4) ASKING FOR A SUFFICIENT
MODIFICATION OF THE CONSENT DECREE TO MAKE CLEAR THAT IT: 

"SHALL HAVE NO PROSPECTIVE APPLICATION TO PROHIBIT DEFENDANTS, OR ANY
OF THEM, FROM NEGOTIATING, ENTERING INTO, OR APPLYING AND ENFORCING,
ANY AGREEMENT OR AGREEMENTS AUTHORIZED BY SECTION 2, ELEVENTH, OF THE
RAILWAY LABOR ACT, AS AMENDED JANUARY 10, 1951." 

THE MOTION, WHICH WAS OPPOSED BY THE RAILROAD AND ITS SUING EMPLOYEES
(RESPONDENTS HERE), WAS DENIED AFTER A HEARING AT WHICH WAS PRESENTED
UNREBUTTED EVIDENCE OF ASSAULTS, DESTRUCTION OF PROPERTY, AND VARIOUS
OTHER MALICIOUS ACTS DIRECTED BY MEMBERS OF THE UNION AT ANY EMPLOYEE
(UNION OR NONUNION) WHO HAD WORKED DURING A 58-DAY STRIKE IN 1955.  THE
DISTRICT COURT ACKNOWLEDGED ITS AUTHORITY TO MODIFY THE CONSENT DECREE
BUT DECLINED TO DO SO, PRIMARILY OUT OF REGARD FOR THE FACT THAT THE
UNIONS (PETITIONERS HERE) HAD CONSENTED BY THE DECREE NOT TO HAVE A
UNION SHOP THEN OR IN THE FUTURE, AN UNDERTAKING WHICH THE DISTRICT
COURT CONSIDERED WAS NOT UNLAWFUL EITHER BEFORE OR AFTER THE 1951
AMENDMENTS.  (FN5)  THE COURT STATED: 

"IT IS TO BE REMEMBERED THAT THE PROVISIONS OF THE RAILWAY LABOR ACT
MADE ILLEGAL A UNION SHOP IN 1945, WHEN THE INJUNCTION WAS AGREED
UPON.  HENCE, IT WAS THEN UNNECESSARY FOR THE RAILROAD AND THE UNIONS
TO AGREE, AS THEY DID, THAT THE NON-UNION MEMBERS SHOULD NOT THEN BE
REQUIRED TO JOIN OR MAINTAIN MEMBERSHIP IN ANY OF THEIR CRAFT UNIONS AS
A CONDITION PRECEDENT TO EMPLOYMENT.  THE LAW SO PROHIBITED, SECTION
152, FOURTH AND FIFTH, TITLE 45, U.S.C. ANNOTATED, RAILWAY LABOR ACT. 
THE RAILROAD AND UNIONS WENT FURTHER TO PROVIDE BY THEIR AGREEMENT THAT
NO SUCH REQUIREMENT OF UNION MEMBERSHIP SHOULD THEREAFTER BE IN EFFECT
IN ANY BARGAINING AGREEMENT IN ACCORDANCE WITH THE PROVISIONS OF THE
RAILWAY LABOR ACT.  THE 1951 AMENDMENT TO THE ACT DID NO MORE THAN MAKE
NEGOTIATIONS FOR A UNION SHOP PERMISSIVE, RAILWAY EMPLOYEES' DEPT. V.
HANSON, SUPRA.  THE AMENDMENT DID NOT NULLIFY THE AGREEMENT OR THE
INJUNCTION.  IT DID NOT PROHIBIT AN AGREEMENT BETWEEN THE RAILROAD AND
THE UNIONS THAT A UNION SHOP SHOULD NOT EXIST.  HENCE, THE COURT LEAVES
THE PARTIES AS THEY AGREED TO BE AND TO REMAIN."  165 F. SUPP. 443,
449. 

THOUGH MAKING IT CLEAR THAT EVIDENCE OF CONTINUED UNION HOSTILITY
AGAINST NONUNION EMPLOYEES WAS NOT DECISIVE, THE DISTRICT COURT GAVE
SOME WEIGHT TO THE ADMINISTRATIVE DIFFICULTY OF PREVENTING UNLAWFUL
DISCRIMINATIONS AGAINST NONUNION EMPLOYEES THAT MIGHT BE FACILITATED IF
THERE WERE A UNION SHOP.  THE SIXTH CIRCUIT AFFIRMED "FOR THE REASONS
SET FORTH IN THE OPINION OF CHIEF JUDGE SHELBOURNE" IN THE DISTRICT
COURT.  272 F.2D 56, 58.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THE ISSUES INVOLVED.  362 U.S. 948. 

AT THE OUTSET IT SHOULD BE NOTED THAT THE POWER OF THE DISTRICT COURT
TO MODIFY THIS DECREE IS NOT DRAWN IN QUESTION.  THAT PROPOSITION
INDEED COULD NOT WELL BE DISPUTED.  SEE PENNSYLVANIA V. WHEELING &
BELMONT BRIDGE CO., 18 HOW.  421; UNITED STATES V. SWIFT & CO., 286
U.S. 106; CHRYSLER CORP. V. UNITED STATES, 316 U.S. 556.  IN THE SWIFT
CASE, MR. JUSTICE CARDOZO PUT THE MATTER THUS, AT 114: 

"WE ARE NOT DOUBTFUL OF THE POWER OF A COURT OF EQUITY TO MODIFY AN
INJUNCTION IN ADAPTATION TO CHANGED CONDITIONS THOUGH IT WAS ENTERED BY
CONSENT  ...  .  POWER TO MODIFY THE DECREE WAS RESERVED BY ITS VERY
TERMS, AND SO FROM THE BEGINNING WENT HAND IN HAND WITH ITS
RESTRAINTS.  IF THE RESERVATION HAD BEEN OMITTED, POWER THERE STILL
WOULD BE BY FORCE OF PRINCIPLES INHERENT IN THE JURISDICTION OF THE
CHANCERY.  A CONTINUING DECREE OF INJUNCTION DIRECTED TO EVENTS TO COME
IS SUBJECT ALWAYS TO ADAPTATION AS EVENTS MAY SHAPE THE NEED.  LADNER
V. SIEGEL, 298 PA. ST. 487, 494, 495." 

THERE IS ALSO NO DISPUTE BUT THAT A SOUND JUDICIAL DISCRETION MAY
CALL FOR THE MODIFICATION OF THE TERMS OF AN INJUNCTIVE DECREE IF THE
CIRCUMSTANCES, WHETHER OF LAW OR FACT, OBTAINING AT THE TIME OF ITS
ISSUANCE HAVE CHANGED, OR NEW ONES HAVE SINCE ARISEN.  THE SOURCE OF
THE POWER TO MODIFY IS OF COURSE THE FACT THAT AN INJUNCTION OFTEN
REQUIRES CONTINUING SUPERVISION BY THE ISSUING COURT AND ALWAYS A
CONTINUING WILLINGNESS TO APPLY ITS POWERS AND PROCESSES ON BEHALF OF
THE PARTY WHO OBTAINED THAT EQUITABLE RELIEF.  FIRMNESS AND STABILITY
MUST NO DOUBT BE ATTRIBUTED TO CONTINUING INJUNCTIVE RELIEF BASED ON
ADJUDICATED FACTS AND LAW, AND NEITHER THE PLAINTIFF NOR THE COURT
SHOULD BE SUBJECTED TO THE UNNECESSARY BURDEN OF RE-ESTABLISHING WHAT
HAS ONCE BEEN DECIDED.  NEVERTHELESS THE COURT CANNOT BE REQUIRED TO
DISREGARD SIGNIFICANT CHANGES IN LAW OR FACTS IF IT IS "SATISFIED THAT
WHAT IT HAS BEEN DOING HAS BEEN TURNED THROUGH CHANGING CIRCUMSTANCES
INTO AN INSTRUMENT OF WRONG."  UNITED STATES V. SWIFT & CO., SUPRA, AT
114-115.  A BALANCE MUST THUS BE STRUCK BETWEEN THE POLICIES OF RES
JUDICATA AND THE RIGHT OF THE COURT TO APPLY MODIFIED MEASURES TO
CHANGED CIRCUMSTANCES. 

WHERE THERE IS SUCH A BALANCE OF IMPONDERABLES THERE MUST BE WIDE
DISCRETION IN THE DISTRICT COURT.  BUT DISCRETION IS NEVER WITHOUT
LIMITS AND THESE LIMITS ARE OFTEN FAR CLEARER TO THE REVIEWING COURT
WHEN THE NEW CIRCUMSTANCES INVOLVE A CHANGE IN LAW RATHER THAN FACTS. 
WHEN THE DECREE IN THIS CASE WAS ORIGINALLY MADE, UNION SHOP AGREEMENTS
WERE PROHIBITED BY THE RAILWAY LABOR ACT AND THUS CONSTITUTED IN
THEMSELVES A FORM OF STATUTORILY FORBIDDEN DISCRIMINATION.  CONGRESS
HAS SINCE, IN THE CLEAREST TERMS, LEGISLATED THAT BARGAINING FOR AND
THE EXISTENCE OF A UNION SHOP CONTRACT, SATISFYING THE CONDITIONS
PROVIDED IN SEC. 2 ELEVENTH OF THE RAILWAY LABOR ACT, ARE NOT FORBIDDEN
DISCRIMINATIONS BY UNION OR EMPLOYER.  CONGRESS HAS THEREFORE
DETERMINED THAT WHATEVER WAYS SUCH A UNION SHOP ARRANGEMENT FACILITATES
OTHER, UNAUTHORIZED DISCRIMINATIONS MUST BE BORNE AS INESCAPABLE
INCIDENTS OF A LEGISLATIVELY APPROVED CONTRACT TERM. 

HAD THE 1945 DECREE SIMPLY REPRESENTED RELIEF AWARDED BY THE DISTRICT
COURT AFTER A TRIAL OF THE ACTION INSTITUTED BY PETITIONERS, THERE
COULD BE LITTLE DOUBT BUT THAT, FACED WITH THE 1951 AMENDMENT TO THE
RAILWAY LABOR ACT, IT WOULD HAVE BEEN IMPROVIDENT FOR THE COURT TO
CONTINUE IN EFFECT THIS PROVISION OF THE INJUNCTION PROHIBITING A UNION
SHOP AGREEMENT AS BEING UNLAWFUL PER SE, OR ITS USE AS AN INSTRUMENT TO
EFFECTUATE OTHER STATUTORILY FORBIDDEN DISCRIMINATIONS.  THAT PROVISION
WAS WELL ENOUGH UNDER THE EARLIER RAILWAY LABOR ACT, BUT TO CONTINUE IT
AFTER THE 1951 AMENDMENT WOULD BE TO RENDER PROTECTION IN NO WAY
AUTHORIZED BY THE NEEDS OF SAFEGUARDING STATUTORY RIGHTS AT THE EXPENSE
OF A PRIVILEGE DENIED AND DENIABLE TO NO OTHER UNION.  THIS CONCLUSION
WOULD NOT BE AFFECTED BY THE CIRCUMSTANCE, WHICH THE DISTRICT COURT
HERE FOUND, THAT THE UNIONS' HOSTILITY TO NONUNION EMPLOYEES STILL
CONTINUED, FOR ANY DISCRIMINATIONS THAT MIGHT BE FACILITATED BY THE
UNION SHOP CLAUSE HAVE BEEN LEGISLATIVELY DETERMINED TO BE AN EXPENSE
MORE THAN OFFSET BY THE BENEFITS OF SUCH A PROVISION. 

WHAT SEEMS PLAIN TO US IN REASON, AS TO A LITIGATED DECREE, IS AMPLY
SUPPORTED BY PRECEDENT.  IN PENNSYLVANIA V. WHEELING & BELMONT BRIDGE
CO., SUPRA, THIS COURT WAS ALSO REQUIRED TO DEAL WITH THE EFFECT UPON
AN OUTSTANDING INJUNCTION OF SUBSEQUENT CONGRESSIONAL ACTION.  THE
COURT HAD EARLIER HELD THAT A BRIDGE ACROSS THE OHIO RIVER OBSTRUCTED
NAVIGATION IN SUCH A WAY AS TO BE IN CONFLICT WITH CERTAIN ACTS OF
CONGRESS REGULATING NAVIGATION ON THE RIVER.  THE DECREE "DIRECTED THAT
THE OBSTRUCTION BE REMOVED, EITHER BY ELEVATING THE BRIDGE TO A HEIGHT
DESIGNATED, OR BY ABATEMENT."  18 HOW., AT 429.  A LATER ACT OF
CONGRESS DECLARED THE BRIDGE TO BE A LAWFUL STRUCTURE IN ITS EXISTING
POSITION AND ELEVATION.  THE INJUNCTION WAS DISSOLVED, THE COURT
SAYING, 18 HOW., AT 430-432: 

"SO FAR, THEREFORE, AS THIS BRIDGE CREATED AN OBSTRUCTION TO THE FREE
NAVIGATION OF THE RIVER, IN VIEW OF THE PREVIOUS ACTS OF CONGRESS, THEY
ARE TO BE REGARDED AS MODIFIED BY THIS SUBSEQUENT LEGISLATION; AND,
ALTHOUGH IT STILL MAY BE AN OBSTRUCTION IN FACT, IS NOT SO IN THE
CONTEMPLATION OF LAW  ...  .  BUT THAT PART OF THE DECREE, DIRECTING
THE ABATEMENT OF THE OBSTRUCTION, IS EXECUTORY, A CONTINUING DECREE,
WHICH REQUIRES NOT ONLY THE REMOVAL OF THE BRIDGE, BUT ENJOINS THE
DEFENDANTS AGAINST ANY RECONSTRUCTION OR CONTINUANCE.  NOW, WHETHER IT
IS A FUTURE EXISTING OR CONTINUING OBSTRUCTION DEPENDS UPON THE
QUESTION WHETHER OR NOT IT INTERFERES WITH THE RIGHT OF NAVIGATION. 
IF, IN THE MEAN TIME, SINCE THE DECREE, THIS RIGHT HAS BEEN MODIFIED BY
THE COMPETENT AUTHORITY, SO THAT THE BRIDGE IS NO LONGER AN UNLAWFUL
OBSTRUCTION, IT IS QUITE PLAIN THE DECREE OF THE COURT CANNOT BE
ENFORCED.  THERE IS NO LONGER ANY INTERFERENCE WITH THE ENJOYMENT OF
THE PUBLIC RIGHT INCONSISTENT WITH LAW, NO MORE THAN THERE WOULD BE
WHERE THE PLAINTIFF HIMSELF HAD CONSENTED TO IT, AFTER THE RENDITION OF
THE DECREE.  SUPPOSE THE DECREE HAD BEEN EXECUTED, AND AFTER THAT THE
PASSAGE OF THE LAW IN QUESTION, CAN IT BE DOUBTED BUT THAT THE
DEFENDANTS WOULD HAVE HAD A RIGHT TO RECONSTRUCT IT?  AND IS IT NOT
EQUALLY CLEAR THAT THE RIGHT TO MAINTAIN IT, IF NOT ABATED, EXISTED
FROM THE MOMENT OF THE ENACTMENT?" 

THE PRINCIPLES OF THE WHEELING BRIDGE CASE HAVE REPEATEDLY BEEN
FOLLOWED BY LOWER FEDERAL AND STATE COURTS.  (FN6)  WE FIND NO REASON
TO RECEDE FROM THEM. 

THAT IT WOULD BE AN ABUSE OF DISCRETION TO DENY A MODIFICATION OF THE
PRESENT INJUNCTION IF IT HAD NOT RESULTED FROM A CONSENT DECREE WE
REGARD AS ESTABLISHED.  IS THIS RESULT AFFECTED BY THE FACT THAT WE ARE
DEALING WITH A CONSENT DECREE?  AGAIN WE START WITH THE SWIFT CASE,
SUPRA, WHERE THE COURT HELD, AT PP. 114-115: 

"THE RESULT IS ALL ONE WHETHER THE DECREE HAS BEEN ENTERED AFTER
LITIGATION OR BY CONSENT  ...  . IN EITHER EVENT, A COURT DOES NOT
ABDICATE ITS POWER TO REVOKE OR MODIFY ITS MANDATE IF SATISFIED THAT
WHAT IT HAS BEEN DOING HAS BEEN TURNED THROUGH CHANGING CIRCUMSTANCES
INTO AN INSTRUMENT OF WRONG.  WE REJECT THE ARGUMENT FOR THE
INTERVENERS THAT A DECREE ENTERED UPON CONSENT IS TO BE TREATED AS A
CONTRACT AND NOT AS A JUDICIAL ACT  ...  .  BUT IN TRUTH WHAT WAS THEN
ADJUDGED WAS NOT A CONTRACT AS TO ANY ONE.  THE CONSENT IS TO BE READ
AS DIRECTED TOWARD EVENTS AS THEY THEN WERE.  IT WAS NOT AN ABANDONMENT
OF THE RIGHT TO EXACT REVISION IN THE FUTURE, IF REVISION SHOULD BECOME
NECESSARY IN ADAPTATION TO EVENTS TO BE."    THIS COURT HAS NEVER
DEPARTED FROM THAT GENERAL RULE.  (FN7)  WE CONTINUE TO ADHERE TO IT
BECAUSE OF THE POLICY IT EXPRESSES.  THE PARTIES CANNOT, BY GIVING EACH
OTHER CONSIDERATION, PURCHASE FROM A COURT OF EQUITY A CONTINUING
INJUNCTION.  IN A CASE LIKE THIS THE DISTRICT COURT'S AUTHORITY TO
ADOPT A CONSENT DECREE COMES ONLY FROM THE STATUTE WHICH THE DECREE IS
INTENDED TO ENFORCE.  FREQUENTLY OF COURSE THE TERMS ARRIVED AT BY THE
PARTIES ARE ACCEPTED WITHOUT CHANGE BY THE ADOPTING COURT.  BUT JUST AS
THE ADOPTING COURT IS FREE TO REJECT AGREED-UPON TERMS AS NOT IN
FURTHERANCE OF STATUTORY OBJECTIVES, SO MUST IT BE FREE TO MODIFY THE
TERMS OF A CONSENT DECREE WHEN A CHANGE IN LAW BRINGS THOSE TERMS IN
CONFLICT WITH STATUTORY OBJECTIVES.  IN SHORT, IT WAS THE RAILWAY LABOR
ACT, AND ONLY INCIDENTALLY THE PARTIES, THAT THE DISTRICT COURT SERVED
IN ENTERING THE CONSENT DECREE NOW BEFORE US.  THE COURT MUST BE FREE
TO CONTINUE TO FURTHER THE OBJECTIVES OF THAT ACT WHEN ITS PROVISIONS
ARE AMENDED.  THE PARTIES HAVE NO POWER TO REQUIRE OF THE COURT
CONTINUING ENFORCEMENT OF RIGHTS THE STATUTE NO LONGER GIVES. 

THE RECORD LEAVES NO ROOM FOR DOUBT THAT THE PARTIES IN FACT
ATTEMPTED TO CONFORM THE CONSENT DECREE TO THE DICTATES OF THE RAILWAY
LABOR ACT AS IT THEN READ.  WE CAN ATTACH NO WEIGHT TO EITHER OF THE
TWO FACTORS THAT LED THE LOWER COURTS TO FIND THAT THE PARTIES HAD
BARGAINED, FREE OF THE REQUIREMENTS OF THE ACT, FOR AN INJUNCTION
SERVING ONLY THEIR OWN INTERESTS.  THE FIRST FACTOR - THAT AN
INDEPENDENTLY ARRIVED AT CONTRACT RATHER THAN A DECREE EFFECTUATING
RIGHTS ACCORDED BY THE ACT MUST HAVE BEEN CONTEMPLATED BECAUSE THE
UNIONS AGREED TO EQUITABLE RELIEF WHEN THEIR ACTS WERE ALREADY DECLARED
UNLAWFUL BY STATUTE - IGNORES COMPLETELY THE FACT THAT THIS WAS
PRECISELY THE RELIEF SOUGHT IN THE COMPLAINT FILED BY THE 28 PLAINTIFFS
AND THE RELIEF THAT HAD BEEN GRANTED AFTER LITIGATION IN STEELE V.
LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192, AND IN GRAHAM V.
BROTHERHOOD OF FIREMEN, 338 U.S. 232.  THE SECOND FACTOR - THAT THE
UNIONS AGREED TO BE BOUND AS TO BARGAINING AGREEMENTS THAT MIGHT LATER
BE IN EFFECT AS WELL AS THE CONTRACT THEN IN EFFECT - IGNORES THE FACT
THAT THE PARTIES, IN ALL LIKELIHOOD, MEANT ONLY TO COVER ANY LATER
BARGAINING AGREEMENTS UNDER THE ACT AS IT READ AT THE TIME OF THE
CONSENT DECREE.  (FN8) 

THE TYPE OF DECREE THE PARTIES BARGAINED FOR IS THE SAME AS THE ONLY
TYPE OF DECREE A COURT CAN PROPERLY GRANT - ONE WITH ALL THOSE
STRENGTHS AND INFIRMITIES OF ANY LITIGATED DECREE WHICH ARISE OUT OF
THE FACT THAT THE COURT WILL NOT CONTINUE TO EXERCISE ITS POWERS
THEREUNDER WHEN A CHANGE IN LAW OR FACTS HAS MADE INEQUITABLE WHAT WAS
ONCE EQUITABLE.  THE PARTIES COULD NOT BECOME THE CONSCIENCE OF THE
EQUITY COURT AND DECIDE FOR IT ONCE AND FOR ALL WHAT WAS EQUITABLE AND
WHAT WAS NOT, BECAUSE THE COURT WAS NOT ACTING TO ENFORCE A PROMISE BUT
TO ENFORCE A STATUTE. 

THE JUDGMENT OF THE COURT OF APPEALS MUST BE REVERSED, AND THE CASE
REMANDED TO IT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
IT IS SO ORDERED. 

FN1  45 U.S.C. SEC. 152. 

FN2  EACH OF THE 28 PLAINTIFFS HAD CLAIMED $5,000 IN DAMAGES. 

FN3  45 U.S.C. SEC. 152 ELEVENTH.  SEE RAILWAY EMPLOYES' DEPARTMENT
V. HANSON, 351 U.S. 225. 

FN4  THE RELEVANT PROVISIONS OF RULE 60(B) ARE AS FOLLOWS:  "ON
MOTION AND UPON SUCH TERMS AS ARE JUST, THE COURT MAY RELIEVE A PARTY
OR HIS LEGAL REPRESENTATIVE FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING
FOR THE FOLLOWING REASONS:  ...  .  (5)  ...  IT IS NO LONGER EQUITABLE
THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION; OR (6) ANY OTHER
REASON JUSTIFYING RELIEF FROM THE OPERATION OF THE JUDGMENT." 

FN5  IN THE VIEW WE TAKE OF THE CASE WE NEED NOT CONSIDER WHETHER
SUCH A COMMITMENT OF INDEFINITE DURATION IS VALID. 

FN6  IN MCGRATH V. POTASH, 91 U.S. APP. D.C. 94, 199 F.2D 166, AFTER
CONGRESS PASSED A STATUTE EXCLUDING FROM THE REQUIREMENTS OF THE
ADMINISTRATIVE PROCEDURE ACT DEPORTATION PROCEEDINGS, THE DISTRICT OF
COLUMBIA CIRCUIT VACATED AN INJUNCTION AGAINST THE GOVERNMENT REQUIRING
COMPLIANCE WITH THAT ACT.  THERE ARE MANY CASES WHERE A MERE CHANGE IN
DECISIONAL LAW HAS BEEN HELD TO JUSTIFY MODIFICATION OF AN OUTSTANDING
INJUNCTION.  E.G., LADNER V. SIEGEL, 298 PA. 487, 148 A. 699 (WHETHER A
GARAGE IN A RESIDENTIAL DISTRICT IS A NUISANCE); SANTA RITA OIL CO. V.
STATE BOARD OF EQUALIZATION, 112 MONT. 359, 116 P.2D 1012 (WHAT FEDERAL
INSTRUMENTALITIES ARE EXEMPT FROM STATE TAXATION); COCA-COLA CO. V.
STANDARD BOTTLING CO., 138 F.2D 788 (WHETHER THE USE OF THE WORD "COLA"
INFRINGED COCA-COLA'S TRADEMARK); AND SEE WESTERN UNION TEL. CO. V.
INTERNATIONAL BROTHERHOOD, 133 F.2D 955 (WHETHER ORDINARY STRIKES ARE
FORBIDDEN BY THE SHERMAN ACT AND WHAT PICKETING CAN CONSTITUTIONALLY BE
ENJOINED). 

FN7  IN COCA-COLA CO. V. STANDARD BOTTLING CO., 138 F.2D 788, 790, A
CIRCUIT COURT COULD SAY WITH SOME CERTAINTY:  "WE KNOW OF NO CASE WHICH
HOLDS THAT A CONSENT DECREE IMPOSING A CONTINUING INJUNCTION DEPRIVES
THE COURT OF ITS SUPERVISORY JURISDICTION IN THE MATTER." 

FN8  WE CONSIDER UNPERSUASIVE THE ARGUMENT OF THE RAILROAD THAT IN
1945 THERE WAS ALREADY ON FOOT A MOVEMENT TO AMEND THE RAILWAY LABOR
ACT SO AS TO PERMIT UNION SHOP AGREEMENTS. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE FRANKFURTER AND MR.
JUSTICE WHITTAKER CONCUR, DISSENTING IN PART. 

THIS CONTROVERSY COMMENCED IN 1945 PRIOR TO THE TIME WHEN SO-CALLED
UNION SHOP AGREEMENTS WERE AUTHORIZED BY CONGRESS.  ACT OF JAN. 10,
1951, 64 STAT. 1238, 45 U.S.C. SEC. 152 ELEVENTH.  SINCE THE DATE OF
THAT LAW, WHICH WE UPHELD IN RAILWAY EMPLOYES' DEPT. V. HANSON, 351
U.S. 225, EMPLOYEES AND CARRIERS MAY NEGOTIATE THAT TYPE OF AGREEMENT,
THOUGH THEY ARE NOT REQUIRED TO DO SO.  ID., P. 231.  PRIOR TO THAT
DATE, HOWEVER, A UNION SHOP WAS BARRED BY LAW IN THIS INDUSTRY; AND A
UNION THAT DISCRIMINATED AGAINST NONUNION MEMBERS WAS ACCOUNTABLE TO
THEM.  SEE STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192, 207. 

TWENTY-EIGHT NONUNION MEMBERS SUED PETITIONERS, IN 1945, CLAIMING
DAMAGES IN THE AMOUNT OF $140,000.  THE COMPLAINT PURPORTED TO STATE A
CLASS ACTION.  BUT THE CASE NEVER CAME TO TRIAL.  A SETTLEMENT WAS
REACHED WHICH PROVIDED FOR (A) THE PAYMENT OF $5,000 IN CASH; (B) THE
WAIVER AND RELEASE BY THE 28 PLAINTIFFS OF ALL THEIR CLAIMS; AND (C) A
CONSENT DECREE WHICH WOULD PROTECT "THE UNDERSIGNED" AGAINST FUTURE
ACTS OF DISCRIMINATION BY PETITIONERS. 

THE CONSENT DECREE DID NOT PURPORT TO PROTECT FUTURE EMPLOYEES.  BY
ITS TERMS IT PROTECTED ONLY "THE PLAINTIFFS IN THIS ACTION AND ALL
OTHER EMPLOYES OF THE DEFENDANT RAILROAD EMPLOYED IN" DESIGNATED CRAFTS
OR CLASSES AND NOT MEMBERS OF THE UNION.  THE PETITIONERS AGREED TO
REFRAIN FROM DISCRIMINATING "AGAINST THE PLAINTIFFS AND THE CLASSES
REPRESENTED BY THEM." 

I DO NOT THINK THE CONSENT DECREE, READ IN LIGHT OF THE SETTLEMENT,
DID MORE THAN SETTLE CLAIMS OF THEN-EXISTING EMPLOYEES.  EMPLOYEES
HIRED IN THE FUTURE WERE, BY ITS TERMS, NOT INCLUDED.  YET APPARENTLY A
HOST OF THEM HAVE INTERVENED, SEEKING THE PROTECTION OF THE STATUS QUO
CREATED BY THAT DECREE.  I USE THE WORD "APPARENTLY" BECAUSE THE RECORD
DOES NOT SHOW WHICH INTERVENORS WERE ON THE PAYROLL OF THE CARRIER IN
1945.  THOSE WHO BECAME EMPLOYED AFTER THAT DATE PLAINLY ARE NOT
ENTITLED TO THE PROTECTION OF THE DECREE.  OF THOSE WHO WERE EMPLOYED
AT THAT TIME, WE KNOW THAT SOME ARE STILL EMPLOYED.  OF THE LATTER
GROUP, AT LEAST SEVEN OF THE ORIGINAL 28 EMPLOYEES ARE STILL ON THE
PAYROLL.  THESE SEVEN RELEASED VALUABLE CLAIMS FOR SETTLING THEIR
DISPUTES.  IT IS HARSH AND UNJUST TO DEPRIVE THEM OF THOSE FRUITS OF
THE SETTLEMENT.  WHETHER THERE ARE OTHERS EMPLOYED IN 1945 WHO HAVE A
LIKE CLAIM TO FAIR DEALING IS IMPOSSIBLE TO TELL FROM THE RECORD. 

WE ARE ALL AGREED THAT THERE IS POWER IN THE DISTRICT COURT TO MODIFY
THE CONSENT DECREE, WHETHER OR NOT THE POWER TO MODIFY WAS RESERVED. 
UNITED STATES V. SWIFT & CO., 286 U.S. 106, 114.  I AGREE WITH THE
COURT THAT THE UNION SHOULD NOT BE DISABLED BY THAT DECREE FROM
CARRYING OUT THE NEW UNION SHOP POLICY WHICH CONGRESS HAS MADE
PERMISSIVE.  CF. PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., 18
HOW.  421, 435-436.  CERTAINLY ALL EMPLOYEES WHO HAVE JOINED THE RANKS
SINCE 1945 HAVE NO CLAIM TO ITS PROTECTION, AS THEY ARE NOT INCLUDED IN
ITS TERMS AND GAVE NOTHING UP IN EXCHANGE FOR IT.  TO CONSTRUE IT TO
INCLUDE THEM WOULD AS A RESULT OF CHANGING CIRCUMSTANCES TURN THE
CONSENT DECREE "INTO AN INSTRUMENT OF WRONG."  UNITED STATES V. SWIFT &
CO., SUPRA, 115.  BUT WHEN WE SET ASIDE THE DECREE AS RESPECTS THOSE
WHO GAVE UP SOMETHING OF VALUE TO GET IT, WE DO AN INJUSTICE.  I THINK
THE APPLICABLE PRINCIPLE IS STATED IN UNITED STATES V. SWIFT & CO.,
SUPRA, 119:  "THE INJUNCTION, WHETHER RIGHT OR WRONG, IS NOT SUBJECT TO
IMPEACHMENT IN ITS APPLICATION TO THE CONDITIONS THAT EXISTED AT ITS
MAKING." 
..END :



RADIANT BURNERS, INC. V. PEOPLES GAS LIGHT & COKE CO. 364 U.S. 656 


NO. 73.  ARGUED DECEMBER 7, 1960 - DECIDED JANUARY 16, 1961 - 273 F.2D
196, REVERSED. 


UNDER SEC. 4 OF THE CLAYTON ACT, A MANUFACTURER OF GAS HEATERS BROUGHT
A SUIT FOR TREBLE DAMAGES AGAINST A TRADE ASSOCIATION AND TEN OF ITS
MEMBERS WHICH ARE PIPELINE COMPANIES, GAS DISTRIBUTORS AND
MANUFACTURERS OF GAS BURNERS, CLAIMING THAT THE DEFENDANTS HAD COMBINED
AND CONSPIRED TO RESTRAIN INTERSTATE COMMERCE IN THE MANUFACTURE AND
SALE OF GAS BURNERS IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  IT
ALLEGED THAT:  THE ASSOCIATION TESTS BURNERS AND ISSUES A SEAL OF
APPROVAL FOR THOSE WHICH PASS ITS TESTS; SUCH TESTS ARE NOT OBJECTIVE
BUT ARE INFLUENCED BY SOME OF THE DEFENDANTS WHICH ARE IN COMPETITION
WITH PLAINTIFF; THE ASSOCIATION HAS IMPROPERLY REFUSED TO APPROVE
PLAINTIFF'S GAS BURNERS; TWO OF THE DEFENDANTS WHICH ARE GAS
DISTRIBUTORS REFUSE TO PROVIDE GAS FOR USE IN PLAINTIFF'S BURNERS; AND
PLAINTIFF'S GAS BURNERS HAVE THUS BEEN EFFECTIVELY EXCLUDED FROM THE
MARKET.  HELD:  IT WAS ERROR FOR THE DISTRICT COURT TO DISMISS THE
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE
GRANTED.  KLOR'S, INC., V. BROADWAY-HALE STORES, 359 U.S. 207.  PP. 657
660. 

RADIANT BURNERS, INC., V. PEOPLES GAS LIGHT & COKE CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

THE QUESTION HERE IS WHETHER PETITIONER'S COMPLAINT STATED A CLAIM
UPON WHICH RELIEF COULD BE GRANTED.  PETITIONER IS ENGAGED AT LOMBARD,
ILLINOIS, IN THE MANUFACTURE AND SALE IN INTERSTATE COMMERCE OF A
CERAMIC GAS BURNER, KNOWN AS THE "RADIANT BURNER," FOR THE HEATING OF
HOUSES AND OTHER BUILDINGS.  CLAIMING THAT AMERICAN GAS ASSOCIATION,
INC. (AGA), A MEMBERSHIP CORPORATION DOING BUSINESS IN THE NORTHERN
DISTRICT OF ILLINOIS AND IN OTHER STATES, AND 10 OF ITS NUMEROUS
MEMBERS (FN1) WHO ALSO ARE DOING BUSINESS IN THE NORTHERN DISTRICT OF
ILLINOIS, COMBINED AND CONSPIRED TO RESTRAIN INTERSTATE COMMERCE IN THE
MANUFACTURE, SALE AND USE OF GAS BURNERS IN VIOLATION OF SEC. 1 OF THE
SHERMAN ACT, PETITIONER BROUGHT THIS ACTION AGAINST THOSE PARTIES FOR
TREBLE DAMAGES AND AN INJUNCTION IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS.  (FN2) 

THE COMPLAINT INCLUDED THE FOLLOWING ALLEGATIONS:  AMERICAN GAS
ASSOCIATION OPERATES TESTING LABORATORIES WHEREIN IT PURPORTS TO
DETERMINE THE SAFETY, UTILITY AND DURABILITY OF GAS BURNERS.  IT HAS
ADOPTED A "SEAL OF APPROVAL" WHICH IT AFFIXES ON SUCH GAS BURNERS AS IT
DETERMINES HAVE PASSED ITS TESTS.  ITS TESTS ARE NOT BASED ON
"OBJECTIVE STANDARDS," BUT ARE INFLUENCED BY RESPONDENTS, SOME OF WHOM
ARE IN COMPETITION WITH PETITIONER, AND THUS ITS DETERMINATIONS CAN BE
MADE "ARBITRARILY AND CAPRICIOUSLY."  PETITIONER HAS TWICE SUBMITTED
ITS RADIANT BURNER TO AGA FOR APPROVAL BUT IT HAS NOT BEEN APPROVED,
ALTHOUGH IT IS SAFER AND MORE EFFICIENT THAN, AND JUST AS DURABLE AS,
GAS BURNERS WHICH AGA HAS APPROVED.  "BECAUSE AGA AND ITS UTILITY
MEMBERS, INCLUDING PEOPLES AND NORTHERN, EFFECTUATE THE PLAN AND
PURPOSE OF THE UNLAWFUL COMBINATION AND CONSPIRACY ALLEGED HEREIN BY
...  REFUSING TO PROVIDE GAS FOR USE IN THE PLAINTIFF'S RADIANT BURNERS
... WHICH ARE NOT APPROVED BY AGA," PETITIONER'S GAS BURNERS HAVE BEEN
EFFECTIVELY EXCLUDED FROM THE MARKET, AS ITS POTENTIAL CUSTOMERS WILL
NOT BUY GAS BURNERS FOR WHICH THEY CANNOT OBTAIN GAS, AND IN
CONSEQUENCE PETITIONER HAS SUFFERED AND IS SUFFERING THE LOSS OF
SUBSTANTIAL PROFITS. 

RESPONDENTS MOVED TO DISMISS FOR FAILURE OF THE COMPLAINT TO STATE A
CLAIM UPON WHICH RELIEF COULD BE GRANTED.  THE DISTRICT COURT GRANTED
THE MOTIONS, DISMISSED THE COMPLAINT AND ENTERED JUDGMENT FOR
RESPONDENTS.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED. 
273 F.2D 196.  IT STATED THAT "NO BOYCOTT, CONSPIRACY TO BOYCOTT OR
OTHER FORM OF PER SE VIOLATION IS ESTABLISHED BY THE FACTS ALLEGED"
(ID., AT 199), AND THAT "IN THE ABSENCE OF A PER SE VIOLATION THE
SHERMAN ACT PROTECTS THE INDIVIDUAL INJURED COMPETITOR AND AFFORDS HIM
RELIEF, BUT ONLY UNDER CIRCUMSTANCES WHERE THERE IS SUCH GENERAL INJURY
TO THE COMPETITIVE PROCESS THAT THE PUBLIC AT LARGE SUFFERS ECONOMIC
HARM."  ID., AT 200.  IT HELD THAT PUBLIC INJURY WAS NOT ALLEGED SINCE
"THE ALLEGATIONS OF THE PLAINTIFF'S COMPLAINT FAIL TO ESTABLISH THAT
THERE HAS BEEN ANY APPRECIABLE LESSENING IN THE SALE OF CONVERSION GAS
BURNERS OR GAS FURNACES OR THAT THE PUBLIC HAS BEEN DEPRIVED OF A
PRODUCT OF OVER-ALL SUPERIORITY."  ID., AT 200.  BECAUSE OF
PETITIONER'S CLAIM THAT THIS HOLDING IS CONTRARY TO CONTROLLING
DECISIONS OF THIS COURT, WE GRANTED CERTIORARI.  363 U.S. 809. 

WE THINK THE DECISION OF THE COURT OF APPEALS DOES NOT ACCORD WITH
OUR RECENT DECISION IN KLOR'S, INC., V. BROADWAY-HALE STORES, 359 U.S.
207.  THE ALLEGATION IN THE COMPLAINT THAT "AGA AND ITS UTILITY
MEMBERS, INCLUDING PEOPLES AND NORTHERN, EFFECTUATE THE PLAN AND
PURPOSE OF THE UNLAWFUL COMBINATION AND CONSPIRACY  ...  BY  ...
REFUSING TO PROVIDE GAS FOR USE IN THE PLAINTIFF'S RADIANT BURNERS"
BECAUSE THEY "ARE NOT APPROVED BY AGA" CLEARLY SHOWS "ONE TYPE OF TRADE
RESTRAINT AND PUBLIC HARM THE SHERMAN ACT FORBIDS  ...  ."  ID., AT
210.  IT IS OBVIOUS THAT PETITIONER CANNOT SELL ITS GAS BURNERS,
WHATEVER MAY BE THEIR VIRTUES, IF, BECAUSE OF THE ALLEGED CONSPIRACY,
THE PURCHASERS CANNOT BUY GAS FOR USE IN THOSE BURNERS.  THE
CONSPIRATORIAL REFUSAL "TO PROVIDE GAS FOR USE IN THE PLAINTIFF'S
RADIANT BURNERS BECAUSE THEY ARE NOT APPROVED BY AGA" THEREFORE FALLS
WITHIN ONE OF THE "CLASSES OF RESTRAINTS WHICH FROM THEIR 'NATURE OR
CHARACTER' ARE UNDULY RESTRICTIVE, AND HENCE FORBIDDEN BY BOTH THE
COMMON LAW AND THE STATUTE  ...  .  AS TO THESE CLASSES OF RESTRAINTS
...  CONGRESS HAS DETERMINED ITS OWN CRITERIA OF PUBLIC HARM AND IT IS
NOT FOR THE COURTS TO DECIDE WHETHER IN AN INDIVIDUAL CASE INJURY HAS
ACTUALLY OCCURRED."  ID., AT 211.  THE ALLEGED CONSPIRATORIAL REFUSAL
TO PROVIDE GAS FOR USE IN PLAINTIFF'S RADIANT BURNERS "INTERFERES WITH
THE NATURAL FLOW OF INTERSTATE COMMERCE AND CLEARLY HAS, BY ITS
'NATURE' AND 'CHARACTER,' A 'MONOPOLISTIC TENDENCY.'  AS SUCH IT IS NOT
TO BE TOLERATED MERELY BECAUSE THE VICTIM IS JUST ONE MANUFACTURER
WHOSE BUSINESS IS SO SMALL THAT HIS DESTRUCTION MAKES LITTLE DIFFERENCE
TO THE ECONOMY."  ID., AT 213. 

BY SEC. 1, CONGRESS HAS MADE ILLEGAL:  "EVERY CONTRACT, COMBINATION
...  OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE AMONG THE SEVERAL
STATES  ...  ."  STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1. 
CONGRESS HAVING THUS PRESCRIBED THE CRITERIA OF THE PROHIBITIONS, THE
COURTS MAY NOT EXPAND THEM.  THEREFORE, TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED UNDER THAT SECTION, ALLEGATIONS ADEQUATE TO SHOW
A VIOLATION AND, IN A PRIVATE TREBLE DAMAGE ACTION, THAT PLAINTIFF WAS
DAMAGED THEREBY ARE ALL THE LAW REQUIRES. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  REVERSED. 

FN1  OF THE 10 MEMBERS OF AGA WHO WERE JOINED WITH IT AS DEFENDANTS,
TWO ARE PUBLIC UTILITIES ENGAGED IN THE DISTRIBUTION OF GAS IN THE
NORTHERN DISTRICT OF ILLINOIS, NAMELY, THE PEOPLES GAS LIGHT & COKE
COMPANY AND NORTHERN ILLINOIS GAS COMPANY; TWO ARE PIPELINE COMPANIES
ENGAGED IN TRANSPORTING NATURAL GAS IN INTERSTATE COMMERCE INTO THE
NORTHERN DISTRICT OF ILLINOIS, NAMELY, NATURAL GAS PIPELINE OF AMERICA
AND TEXAS-ILLINOIS NATURAL GAS CO.; THE OTHER SIX ARE MANUFACTURERS OF
GAS BURNERS, NAMELY, AUTOGAS COMPANY, CROWN STOVE WORKS, FLORENCE STOVE
COMPANY, GAS APPLIANCE SERVICE, INC., NORGE SALES CORPORATION, AND
SELLERS ENGINEERING COMPANY. 

FN2  SECTION 1 OF THE SHERMAN ACT PROVIDES:  "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 HEREBY DECLARED TO BE ILLEGAL  ...  ." 

STATES, "ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY
REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR
...  AND SHALL RECOVER THREEFOLD THE DAMAGES BY HIM SUSTAINED  ...  ." 

STATES, "ANY PERSON, FIRM, CORPORATION, OR ASSOCIATION SHALL BE
ENTITLED TO SUE FOR AND HAVE INJUNCTIVE RELIEF, IN ANY COURT OF THE
UNITED STATES HAVING JURISDICTION OVER THE PARTIES, AGAINST THREATENED
LOSS OR DAMAGE BY A VIOLATION OF THE ANTITRUST LAWS  ...  ." 
..END :














KIMBROUGH V. UNITED STATES 364 U.S. 661 


NO. 128.  ARGUED JANUARY 11-12, 1961 - DECIDED JANUARY 16, 1961 -
REPORTED BELOW:  272 F.2D 944. 


WRIT OF CERTIORARI DISMISSED BECAUSE THE RECORD DOES NOT PRESENT WITH
SUFFICIENT CLARITY THE QUESTION WHETHER CUMULATIVE SENTENCES CAN
VALIDLY BE IMPOSED UPON CONVICTION UNDER THE NATIONAL MOTOR VEHICLE
THEFT ACT FOR TRANSPORTING A STOLEN AUTOMOBILE IN INTERSTATE COMMERCE
AND FOR RECEIVING, CONCEALING AND STORING THE SAME AUTOMOBILE, IN A
CONTINUING CRIMINAL TRANSACTION. 

KIMBROUGH V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

WE BROUGHT THIS CASE HERE TO CONSIDER WHETHER CUMULATIVE SENTENCES
CAN VALIDLY BE IMPOSED UPON CONVICTION UNDER THE NATIONAL MOTOR VEHICLE
THEFT ACT FOR TRANSPORTING A STOLEN AUTOMOBILE IN INTERSTATE COMMERCE
AND FOR RECEIVING, CONCEALING, AND STORING THE SAME AUTOMOBILE, IN A
CONTINUING CRIMINAL TRANSACTION.  AFTER ORAL ARGUMENT AND A MORE
THOROUGH CONSIDERATION OF THE RECORD THAN WAS AFFORDED WHEN THE
PETITION FOR CERTIORARI WAS GRANTED, WE HAVE CONCLUDED THAT THIS
QUESTION IS NOT PRESENTED WITH SUFFICIENT CLARITY IN THIS CASE. 
ACCORDINGLY, THE WRIT IS DISMISSED. 
..END :























PECK V. NEW YORK 364 U.S. 662 


NO. 437.  DECIDED JANUARY 16, 1961 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  7 N.Y.2D 76, 163 N.E.2D 866. 


PECK ET AL. V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :














UNITED STATES V. MISSISSIPPI VALLEY GENERATING CO. 364 U.S. 520 


NO. 26.  ARGUED OCTOBER 19, 1960 - DECIDED JANUARY 9, 1961 - 175 F.
SUPP. 505, REVERSED. 


RESPONDENT SUED THE UNITED STATES IN THE COURT OF CLAIMS TO RECOVER
COSTS AND DAMAGES INCURRED UNDER A GOVERNMENT-TERMINATED CONTRACT TO
CONSTRUCT AND OPERATE A POWER PLANT TO PROVIDE ELECTRIC POWER FOR THE
ATOMIC ENERGY COMMISSION.  THE GOVERNMENT CONTENDED THAT THE CONTRACT
WAS UNENFORCEABLE BECAUSE IT GREW OUT OF A PROPOSAL RESULTING FROM
NEGOTIATIONS IN WHICH THE GOVERNMENT HAD BEEN REPRESENTED BY AN UNPAID
PART-TIME CONSULTANT TO THE BUDGET BUREAU, WHO WAS AT THE SAME TIME AN
ACTIVE OFFICER OF AN INVESTMENT BANKING COMPANY WHICH WAS EXPECTED TO
PROFIT FROM THE TRANSACTION BY BECOMING FINANCIAL AGENT FOR THE
PROJECT.  IT WAS SHOWN THAT, WHILE ACTING FOR THE GOVERNMENT, HE HAD
ALSO ACTED FOR THE SPONSORS OF THE PROJECT BY OBTAINING FROM HIS OWN
COMPANY ESTIMATES OF THE COST OF THE FINANCING AND THAT HE HAD STOPPED
ACTING FOR THE GOVERNMENT (WITHOUT RESIGNING) SHORTLY BEFORE HIS
COMPANY WAS RETAINED BY THE SPONSORS AS FINANCIAL AGENT.  HELD:  THE
CONSULTANT VIOLATED 18 U.S.C. SEC. 434, AND PUBLIC POLICY FORBIDS
ENFORCEMENT OF THE CONTRACT.  PP. 523-566. 

1.  BY ACTING FOR THE GOVERNMENT IN A BUSINESS TRANSACTION FROM WHICH
HE AND HIS COMPANY COULD BE EXPECTED EVENTUALLY TO DERIVE A PROFIT, THE
CONSULTANT VIOLATED 18 U.S.C. SEC.  434.  PP. 548-562. 

(A)  THE OBVIOUS PURPOSE OF SEC. 434 IS TO INSURE HONESTY IN THE
GOVERNMENT'S BUSINESS DEALINGS BY PREVENTING FEDERAL AGENTS WHO HAVE
INTERESTS ADVERSE TO THOSE OF THE GOVERNMENT FROM ADVANCING THEIR OWN
INTERESTS AT THE EXPENSE OF THE PUBLIC WELFARE.  P. 548. 

(B)  IT IS NOT LIMITED IN ITS APPLICATION TO THOSE IN THE HIGHEST
ECHELONS OF GOVERNMENT SERVICE, TO THOSE GOVERNMENT AGENTS WHO HAVE
ONLY A DIRECT FINANCIAL INTEREST IN THE BUSINESS ENTITIES WITH WHICH
THEY NEGOTIATE ON BEHALF OF THE GOVERNMENT, OR TO A NARROW CLASS OF
BUSINESS TRANSACTIONS.  P. 549. 

(C)  IT ESTABLISHES AN OBJECTIVE STANDARD OF CONDUCT, AND WHENEVER A
GOVERNMENT AGENT FAILS TO ACT IN ACCORDANCE WITH THAT STANDARD HE IS
GUILTY OF VIOLATING THE STATUTE, REGARDLESS OF WHETHER THERE IS ACTUAL
CORRUPTION OR ANY ACTUAL LOSS SUFFERED BY THE GOVERNMENT.  P. 549. 

(D)  IT ATTEMPTS TO PREVENT HONEST GOVERNMENT AGENTS FROM SUCCUMBING
TO TEMPTATION BY MAKING IT ILLEGAL FOR THEM TO ENTER INTO RELATIONSHIPS
WHICH ARE FRAUGHT WITH TEMPTATION.  PP. 549-550. 

(E)  IN VIEW OF THE STATUTE'S EVIDENT PURPOSE AND ITS COMPREHENSIVE
LANGUAGE, IT IS CLEAR THAT CONGRESS INTENDED TO ESTABLISH A RIGID RULE
OF CONDUCT TO WHICH THERE ARE NO EXCEPTIONS.  PP. 549-551. 

(F)  SINCE THE CONSULTANT ACTED AS THE GOVERNMENT'S KEY
REPRESENTATIVE IN THE CRUCIAL PRELIMINARY NEGOTIATIONS WHICH EVENTUALLY
RESULTED IN THIS CONTRACT, IT WOULD BE UNREALISTIC TO SAY THAT HE WAS
NOT THE TYPE OF "AGENT" OF THE UNITED STATES TO WHOM SEC. 434 WAS
INTENDED TO APPLY.  PP. 551-552. 

(G)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACTS THAT HE TOOK
NO OATH OF OFFICE, HAD NO TENURE, SERVED WITHOUT SALARY, PERFORMED
DUTIES WHICH WERE MERELY CONSULTATIVE AND WERE NOT PRESCRIBED BY
STATUTE, AND WAS KNOWINGLY PERMITTED TO CONTINUE IN HIS POSITION AND TO
DRAW HIS SALARY AS VICE PRESIDENT OF HIS COMPANY.  PP. 552-553. 

(H)  ON THE RECORD, IT CANNOT BE SAID THAT HIS ACTIVITIES DID NOT
CONSTITUTE "THE TRANSACTION OF BUSINESS" FOR THE GOVERNMENT WITHIN THE
MEANING OF SEC. 434.  PP. 553-555. 

(I)  SINCE THERE WAS A REASONABLE EXPECTATION THAT THE CONSULTANT'S
COMPANY WOULD BE SELECTED AS FINANCIAL AGENT FOR THE PROJECT, HE WAS
"INDIRECTLY INTERESTED IN THE PECUNIARY PROFITS OR CONTRACTS" OF THE
SPONSORS, WITHIN THE MEANING OF SEC. 434.  PP. 555-557. 

(J)  THE STATUTE LAYS DOWN AN ABSOLUTE STANDARD OF CONDUCT WHICH THE
CONSULTANT VIOLATED BY ENTERING INTO A RELATIONSHIP WHICH MADE IT
DIFFICULT FOR HIM TO REPRESENT THE GOVERNMENT WITH THE SINGLENESS OF
PURPOSE REQUIRED BY THE STATUTE.  PP. 557-559. 

(K)  THE CONSULTANT'S EXPECTATION WHILE ACTING FOR THE GOVERNMENT
THAT HE AND HIS COMPANY WOULD BENEFIT FROM PROFITS TO BE REALIZED FROM
FINANCING THE TRANSACTION INFECTED THE TRANSACTION, AND THE TAINT WAS
NOT REMOVED BY THE SUBSEQUENT DECISION OF HIS COMPANY TO FOREGO ITS
USUAL FEE.  P. 559, N. 17. 

(L)  SINCE THE CONSULTANT HAD REASON TO BELIEVE THAT HIS COMPANY
WOULD BE SELECTED AS FINANCIAL AGENT IF THE NEGOTIATIONS RESULTED IN A
CONTRACT, THE ABSENCE OF A FORMAL AGREEMENT TO THAT EFFECT DID NOT
PREVENT HIS ACTIVITIES FROM VIOLATING SEC. 434.  P. 560. 

(M)  HE WAS NOT EXEMPTED FROM THE COVERAGE OF THE STATUTE BY THE FACT
THAT HIS GOAL OF ADVANCING THE CAUSE OF PRIVATE POWER COINCIDED WITH
THE ADMINISTRATION'S GENERAL OBJECTIVE.  P. 560. 

(N)  EVEN IF THE CONSULTANT DID NOT THINK THAT HIS ACTIVITIES
INVOLVED ANY CONFLICT OF INTEREST, THAT IS IRRELEVANT.  PP. 560-561. 

(O)  THE KNOWLEDGE OF HIS SUPERIORS IN THE BUDGET BUREAU AND THEIR
APPROVAL OF HIS ACTIVITIES DID NOT EXEMPT HIM FROM THE COVERAGE OF SEC.
434.  P. 561. 

(P)  THE STATUTE IS DIRECTED AT AN EVIL WHICH ENDANGERS THE VERY
FABRIC OF DEMOCRATIC SOCIETY, AND IT IS NEITHER UNJUST NOR INEQUITABLE
TO APPLY IT TO ONE WHO ACTED AS THE CONSULTANT DID IN THIS CASE.  PP.
561-562. 

2.  NONENFORCEMENT OF THIS CONTRACT IS REQUIRED IN ORDER TO EXTEND TO
THE PUBLIC THE FULL PROTECTION WHICH CONGRESS DECREED BY ENACTING SEC.
434.  PP. 563-566. 

(A)  THE PURPOSE OF THE STATUTE TO PROTECT THE PUBLIC CAN BE FULLY
ACHIEVED ONLY IF CONTRACTS WHICH ARE TAINTED BY A CONFLICT OF INTEREST
ON THE PART OF A GOVERNMENT AGENT MAY BE DISAFFIRMED BY THE
GOVERNMENT.  P. 563. 

(B)  NONENFORCEMENT OF CONTRACTS MADE IN VIOLATION OF SEC. 434 AND
ITS PREDECESSOR STATUTES IS NOT A NOVEL REMEDY BUT ONE WHICH HAS BEEN
RECOGNIZED BY THE COURT OF CLAIMS ON AT LEAST TWO OCCASIONS.  P. 564. 

(C)  THE INHERENT DIFFICULTY IN DETECTING CORRUPTION LYING BENEATH
THE SURFACE OF A CONTRACT CONCEIVED IN A TAINTED TRANSACTION REQUIRES
THAT CONTRACTS MADE IN VIOLATION OF SEC. 434 BE HELD UNENFORCEABLE,
EVEN WHEN THE PARTY SEEKING ENFORCEMENT MAY APPEAR TO BE ENTIRELY
INNOCENT.  PP. 564-565. 

(D)  THAT THE CONFLICT OF INTEREST HERE INVOLVED WAS DIRECTLY CAUSED
BY HIGH OFFICIALS OF THE BUDGET BUREAU DOES NOT REQUIRE ENFORCEMENT OF
THIS ILLEGAL CONTRACT.  PP. 565-566. 

3.  SINCE GOVERNMENT HAS RECEIVED NO TANGIBLE BENEFITS FROM
RESPONDENT, NO RECOVERY QUANTUM VALEBAT IS IN ORDER.  P. 566, N. 22. 

UNITED STATES V. MISSISSIPPI VALLEY GENERATING CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO REVIEW THE DECISION OF THE COURT OF CLAIMS
BECAUSE THE CONFLICT-OF-INTEREST PROBLEM PRESENTED BY THIS CASE HAS A
FAR-REACHING SIGNIFICANCE IN THE AREA OF PUBLIC EMPLOYMENT AND INVOLVES
FUNDAMENTAL QUESTIONS RELATING TO THE STANDARDS OF CONDUCT WHICH SHOULD
GOVERN THOSE WHO REPRESENT THE GOVERNMENT IN ITS BUSINESS DEALINGS. 

THE PERSON WITH WHOSE ACTIVITIES WE ARE PRIMARILY CONCERNED IS ONE
ADOLPHE H. WENZELL, VICE PRESIDENT AND DIRECTOR OF FIRST BOSTON
CORPORATION, (FN1) WHICH IS ONE OF THE MAJOR FINANCIAL INSTITUTIONS IN
THE COUNTRY.  AT THE SUGGESTION OF FIRST BOSTON'S CHAIRMAN, AND
SUBSEQUENTLY AT THE REQUEST OF THE BUREAU OF THE BUDGET, WENZELL
UNDERTOOK TO ADVISE THE GOVERNMENT AND ACT ON ITS BEHALF IN
NEGOTIATIONS WHICH CULMINATED IN A CONTRACT BETWEEN THE GOVERNMENT AND
THE MISSISSIPPI VALLEY GENERATING COMPANY (MVG), THE RESPONDENT
HEREIN.  THE CONTRACT CALLED FOR THE CONSTRUCTION AND OPERATION BY THE
RESPONDENT OF A $100,000,000 STEAM POWER PLANT IN THE MEMPHIS,
TENNESSEE, AREA.   ULTIMATELY, THE PLANT WAS TO SUPPLY 600,000 KW. OF
ELECTRICAL ENERGY FOR THE USE OF THE ATOMIC ENERGY COMMISSION (AEC). 
BEFORE THE PLANT WAS CONSTRUCTED, BUT AFTER THE RESPONDENT HAD TAKEN
SOME STEPS TOWARD PERFORMING THE CONTRACT, THE AEC, WHICH WAS THE
GOVERNMENTAL CONTRACTING AGENCY, CANCELED THE CONTRACT BECAUSE THE
POWER TO BE GENERATED BY THE PROPOSED PLANT WAS NO LONGER NEEDED.  THE
RESPONDENT THEN SUED THE GOVERNMENT IN THE COURT OF CLAIMS FOR THE SUMS
IT HAD EXPENDED IN CONNECTION WITH THE CONTRACT. 

THE GOVERNMENT DEFENDED ON SEVERAL GROUNDS, BUT PRIMARILY ON THE
GROUND THAT THE CONTRACT WAS UNENFORCEABLE DUE TO AN ILLEGAL CONFLICT
OF INTEREST ON THE PART OF WENZELL.  SPECIFICALLY, THE GOVERNMENT
CONTENDED THAT AT THE TIME OF WENZELL'S EMPLOYMENT BY THE GOVERNMENT,
IT WAS APPARENT THAT FIRST BOSTON WAS LIKELY TO BENEFIT, AND AS
SUBSEQUENTLY DEVELOPED, IN FACT, DID BENEFIT, FROM THE CONTRACT HERE IN
QUESTION; THAT WENZELL, AS AN OFFICER OF FIRST BOSTON, WAS THEREFORE
"DIRECTLY OR INDIRECTLY" INTERESTED IN THE CONTRACT WHICH HE, AS AN
AGENT OF THE GOVERNMENT, HAD HELPED TO NEGOTIATE; THAT HE CONSEQUENTLY
HAD VIOLATED THE FEDERAL CONFLICT-OF-INTEREST STATUTE, 18 U.S.C. SEC.
434; (FN2) AND THAT HIS ILLEGAL CONDUCT TAINTED THE WHOLE TRANSACTION
AND RENDERED THE CONTRACT UNENFORCEABLE. 

A SHARPLY DIVIDED COURT OF CLAIMS REJECTED ALL OF THE GOVERNMENT'S
DEFENSES AND AWARDED DAMAGES TO THE RESPONDENT IN THE SUM OF
$1,867,545.56.  (FN3)  175 F. SUPP. 505. 

BECAUSE OF THE VIEW WHICH WE TAKE OF THE CONFLICT-OF-INTEREST
QUESTION, IT WILL NOT BE NECESSARY FOR US TO DETERMINE THE VALIDITY OF
THE OTHER DEFENSES RAISED BY THE GOVERNMENT IN THE COURT BELOW,
IMPORTANT THOUGH THEY MAY BE.  (FN4)  WITH REGARD TO THE CONFLICT-OF
INTEREST DEFENSE, THERE APPEAR TO BE BUT TWO LEGAL PRINCIPLES INVOLVED:
(1) DID THE ACTIVITIES OF WENZELL CONSTITUTE A VIOLATION OF 18 U.S.C.
SEC. 434; AND (2) IF SO, DOES THAT FACT ALONE PRECLUDE THE RESPONDENT
FROM ENFORCING THE CONTRACT?  FOR REASONS WHICH WE SHALL SET FORTH IN
DETAIL BELOW, WE THINK THAT THE COURT OF CLAIMS WAS IN ERROR AND THAT
BOTH OF THESE QUESTIONS MUST BE ANSWERED IN THE AFFIRMATIVE. 

     I. 

BECAUSE THE OUTCOME OF THIS CASE DEPENDS LARGELY UPON AN EVALUATION
OF WENZELL'S ACTIVITIES ON BEHALF OF THE GOVERNMENT, A RATHER DETAILED
STATEMENT OF THE FACTS IS NECESSARY IN ORDER TO UNDERSTAND FULLY THE
NATURE OF THOSE ACTIVITIES AND TO PLACE THEM IN THEIR PROPER CONTEXT. 
THE VOLUMINOUS EVIDENCE IN THE CASE WAS HEARD BY A TRIAL COMMISSIONER. 
BASED UPON THE COMMISSIONER'S REPORT AND THE BRIEFS AND ARGUMENTS OF
COUNSEL, THE COURT OF CLAIMS MADE VERY EXTENSIVE FINDINGS OF FACT WHICH
COVER APPROXIMATELY 200 PAGES IN THE TRANSCRIPT OF RECORD. 
FORTUNATELY, IT WILL NOT BE NECESSARY FOR US TO CONSIDER THE ORIGINAL
EVIDENCE, SINCE BOTH PARTIES HAVE AGREED TO RELY UPON THE COURT OF
CLAIMS' FINDINGS, AND SINCE WE ALSO CONCLUDE THAT THOSE FINDINGS ARE
SUFFICIENT TO DISPOSE OF THE ISSUES PRESENTED.  HOWEVER, IT SHOULD BE
NOTED THAT OUR RELIANCE UPON THE FINDINGS OF FACT DOES NOT PRECLUDE US
FROM MAKING AN INDEPENDENT DETERMINATION AS TO THE LEGAL CONCLUSIONS
AND INFERENCES WHICH SHOULD BE DRAWN FROM THEM.  SEE UNITED STATES V.
DU PONT DE NEMOURS & CO., 353 U.S. 586, 598; GREAT ATL. & PAC. TEA CO.
V. SUPERMARKET EQUIP.  CORP., 340 U.S. 147, 153-154. 

FIRST.  AT THE OUTSET, WE THINK IT IS APPROPRIATE TO DISCUSS, IN A
GENERAL WAY, THE ORIGIN OF THE CONTRACT HERE IN QUESTION AND THE
NEGOTIATIONS WHICH LED TO THE ULTIMATE AGREEMENT.  THE STORY OF THIS
CONTRACT BEGINS IN THE EARLY DAYS OF 1953.  ALMOST IMMEDIATELY AFTER
ASSUMING OFFICE, PRESIDENT EISENHOWER ANNOUNCED HIS INTENTION TO REVISE
THE GOVERNMENT'S APPROACH TO THE PUBLIC POWER QUESTION.   IN HIS FIRST
STATE OF THE UNION MESSAGE, DELIVERED ON FEBRUARY 2, 1953, THE
PRESIDENT INDICATED THAT IT WAS HIS INTENTION TO ENCOURAGE EITHER
PRIVATE ENTERPRISE OR LOCAL COMMUNITIES TO PROVIDE POWER-GENERATING
SOURCES IN PARTNERSHIP WITH THE FEDERAL GOVERNMENT.  CONSONANT WITH
THIS POLICY, JOSEPH M. DODGE, DIRECTOR OF THE BUREAU OF THE BUDGET,
DECIDED IN THE FALL OF 1953 TO ELIMINATE FROM THE TENNESSEE VALLEY
AUTHORITY'S (TVA) BUDGET FOR THE FISCAL YEAR 1955 A REQUEST FOR FUNDS
TO BE USED FOR THE CONSTRUCTION OF A STEAM-GENERATING PLANT AT FULTON,
TENNESSEE.  THE PROPOSED TVA PLANT WAS TO HAVE SERVED THE COMMERCIAL,
INDUSTRIAL, AND DOMESTIC POWER NEEDS OF THE CITY OF MEMPHIS AND ITS
ENVIRONS.  WHEN GORDON CLAPP, THE GENERAL MANAGER OF TVA, LEARNED OF
DODGE'S DECISION, HE IMMEDIATELY INFORMED PERSONS WORKING IN THE BUREAU
OF THE BUDGET THAT IF PROVISION FOR THE FULTON PLANT WERE ELIMINATED
FROM TVA'S BUDGET, TVA WOULD TAKE THE POSITION THAT THE AMOUNT OF POWER
THEN BEING SUPPLIED BY TVA TO THE AEC SHOULD BE REDUCED SO THAT
SUFFICIENT POWER WOULD BE AVAILABLE TO MEET THE GROWING DEMANDS OF
TVA'S OTHER CUSTOMERS.  AS A RESULT OF THIS STATEMENT BY CLAPP, THE
BUREAU OF THE BUDGET BEGAN DRAFTING A STATEMENT FOR THE PRESIDENT'S
BUDGET MESSAGE TO THE EFFECT THAT STEPS WOULD BE TAKEN TO RELIEVE TVA
OF SOME OF ITS COMMITMENTS TO THE AEC, AND THAT IF EFFORTS IN THAT
DIRECTION PROVED UNSUCCESSFUL, THE POSSIBILITY OF THE CONSTRUCTION OF A
PLANT BY TVA AT FULTON WOULD BE RECONSIDERED. 

ON DECEMBER 2, 1953, DODGE MET IN HIS OFFICE WITH LEWIS I. STRAUSS,
CHAIRMAN OF THE AEC, AND WALTER J. WILLIAMS, GENERAL MANAGER OF THE
AEC.  DODGE SAID THAT HE HOPED TO AVOID FURTHER EXPENDITURES BY TVA FOR
THE CONSTRUCTION OF POWER-GENERATING PLANTS, AND THAT HE THOUGHT THE
AEC SHOULD INVESTIGATE THE POSSIBILITY OF REDUCING ITS CONSUMPTION OF
TVA-GENERATED POWER BY CONTRACTING WITH PRIVATE INDUSTRY FOR THE
CONSTRUCTION OF A PLANT THAT WOULD SUPPLY 450,000 KW. OF ADDITIONAL
POWER FOR THE AEC AT ITS PADUCAH, KENTUCKY, INSTALLATION BY 1957. 
DODGE INQUIRED WHETHER THE PLAN OUTLINED BY HIM WOULD BE FEASIBLE, AND
WILLIAMS REPLIED THAT HE COULD NOT ANSWER THE QUESTION UNTIL HE HAD
CONSULTED WITH J.W. MCAFEE, THE PRESIDENT OF ELECTRIC ENERGY, INC., A
PRIVATE UTILITY COMPANY WHICH HAD PREVIOUSLY ENTERED INTO LONG-TERM
POWER CONTRACTS WITH THE AEC SIMILAR TO THE ONE DESCRIBED BY DODGE. 

AFTER THE MEETING, WILLIAMS ARRANGED TO MEET WITH MCAFEE, AND THIS
MEETING OCCURRED ON DECEMBER 8, 1953.  WILLIAMS ASKED MCAFEE WHETHER HE
KNEW OF A PRIVATE POWER COMPANY THAT MIGHT BE INTERESTED IN BUILDING A
PLANT TO SUPPLY THE AEC WITH AS MUCH AS 450,000 KW. OF GENERATING
CAPACITY BY THE MIDDLE OF 1957.  MCAFEE STATED THAT IT MIGHT BE
DIFFICULT FOR HIS COMPANY TO DO THE JOB, BUT HE AGREED TO MAKE SOME
INQUIRIES ABOUT THE MATTER.  LATER, ON DECEMBER 14, 1953, MCAFEE WROTE
A LETTER TO THE AEC INDICATING THAT HE THOUGHT A GROUP OF PRIVATE
INVESTORS COULD BE FORMED TO SUPPLY THE AEC THE AMOUNT OF POWER
REQUESTED.  BECAUSE OF THE BUDGET BUREAU'S CONTINUING INTEREST IN THE
PROGRESS OF THE PLAN, A COPY OF MCAFEE'S LETTER WAS REQUESTED BY AND
SENT TO WILLIAM F. MCCANDLESS, ASSISTANT DIRECTOR FOR BUDGET REVIEW IN
THE BUREAU. 

SOMETIME PRIOR TO DECEMBER 14, 1953, EDGAR H. DIXON, PRESIDENT OF
MIDDLE SOUTH UTILITIES, LEARNED FROM MCAFEE THAT THE AEC MIGHT BE
SEEKING AN ADDITIONAL SOURCE OF POWER IN THE PADUCAH AREA.  ON DECEMBER
23, 1953, DIXON CAME TO STRAUSS' OFFICE FOR A MEETING WITH WILLIAMS,
STRAUSS, AND KENNETH D. NICHOLS, WHO HAD BEEN SELECTED TO SUCCEED
WILLIAMS AS GENERAL MANAGER OF THE AEC.  THE PURPOSE OF THE MEETING WAS
TO DISCUSS THE POSSIBILITY OF HAVING PRIVATE UTILITY COMPANIES BUILD
ADDITIONAL GENERATING CAPACITY NEAR PADUCAH FOR THE PURPOSE OF
RELIEVING TVA OF ITS COMMITMENTS TO THE AEC THERE.  SHORTLY AFTER THE
MEETING HAD CONCLUDED, WILLIAMS CALLED MCCANDLESS AT THE BUREAU OF THE
BUDGET TO INFORM HIM OF WHAT HAD TRANSPIRED AT THE MEETING.  ON THE
NEXT DAY, DECEMBER 24, 1953, ROWLAND HUGHES, ASSISTANT DIRECTOR OF THE
BUREAU OF THE BUDGET, WROTE TO STRAUSS, STATING THAT IT WOULD BE
HELPFUL IF THE AEC WOULD CONTINUE NEGOTIATIONS WITH PRIVATE POWER
INTERESTS WITH A VIEW TOWARD REACHING A FIRM AGREEMENT FOR THE SUPPLY
OF POWER TO THE AEC AT PADUCAH. 

ON JANUARY 4, 1954, MCAFEE WROTE A LETTER TO WILLIAMS IN WHICH HE
EXPRESSED SOME DOUBTS ABOUT THE PLAN SUGGESTED BY THE GOVERNMENT.  HE
THOUGHT THAT IT MIGHT BE WISER FOR TVA TO REDUCE ITS COMMITMENTS TO THE
NUMEROUS MUNICIPALITIES WHICH IT SUPPLIED WITH POWER, OR FOR TVA TO
ARRANGE WITH NEIGHBORING POWER COMPANIES TO BUY POWER FROM THEM. 
SHORTLY AFTER WILLIAMS RECEIVED THIS LETTER, A MEETING WAS HELD IN
STRAUSS' OFFICE, AND THOSE PRESENT WERE STRAUSS, WILLIAMS, NICHOLS,
HUGHES, AND MCCANDLESS.  NICHOLS, SPEAKING FOR THE AEC, EXPRESSED A
CERTAIN RELUCTANCE TO CONTINUE THE NEGOTIATIONS.  HE POINTED OUT THAT
IF THE AEC PURCHASED MORE POWER FROM PRIVATE UTILITIES IN LIEU OF THE
POWER ALREADY BEING SUPPLIED BY TVA, THE COST TO THE AEC WOULD BE
GREATER AND THE SUPPLY LESS CERTAIN BECAUSE OF POSSIBLE DELAYS IN THE
CONSTRUCTION OF THE PLANT AND THE LOCATION OF RESERVE POWER.  HE ALSO
NOTED THAT MCAFEE WAS APPARENTLY NO LONGER EAGER TO ENTER INTO THE
CONTRACT; THAT FROM AN ENGINEERING POINT OF VIEW, PADUCAH WAS A POOR
LOCATION FOR THE SITE OF THE NEW PLANT; AND THAT IF MORE POWER WAS
NEEDED IN THE MEMPHIS AREA, IT WOULD BE BETTER FOR THE CITY OF MEMPHIS
OR FOR TVA TO ENTER INTO A CONTRACT WITH PRIVATE COMPANIES FOR THE
CONSTRUCTION OF A PLANT AT THAT LOCATION.  MCCANDLESS REQUESTED THAT
THE AEC PURSUE THE MATTER AT GREATER LENGTH WITH MCAFEE. 

PURSUANT TO THIS REQUEST, A MEETING WAS ARRANGED FOR JANUARY 20,
1954, BETWEEN MCAFEE AND DIXON AND REPRESENTATIVES OF THE BUDGET BUREAU
AND THE AEC.  AT THE MEETING IT WAS MADE CLEAR TO DIXON AND MCAFEE THAT
THE PURPOSE OF THE POWER PLANT WAS TO RELIEVE THE PRESSURE ON TVA IN
THE MEMPHIS AREA BY REDUCING ITS COMMITMENTS TO THE AEC.  THE
DISCUSSION THEREFORE TURNED TO THE POSSIBILITY OF CONSTRUCTING THE
PLANT AT MEMPHIS RATHER THAN AT PADUCAH.  DIXON SUGGESTED THAT SINCE
THE POWER WOULD BE SUPPLIED DIRECTLY TO TVA, IT MIGHT BE BETTER FOR
TVA, RATHER THAN FOR THE AEC, TO ACT AS THE CONTRACTING AGENCY. 
HOWEVER, THE GOVERNMENT REPRESENTATIVES PREFERRED THAT THE AEC CONTRACT
AND PAY FOR THE POWER, EVEN THOUGH THE ACTUAL DELIVERY OF POWER WOULD
BE MADE TO TVA.  IT WAS FINALLY AGREED THAT DIXON WOULD PREPARE A STUDY
OF THE COST FACTORS PERTAINING TO THE CONSTRUCTION BY HIS COMPANY OF A
POWER PLANT THAT COULD SUPPLY 450,000 TO 600,000 KW. OF POWER IN THE
MEMPHIS AREA. 

WHEN IT BECAME APPARENT THAT THE NEW PLANT WAS TO BE LOCATED AT
MEMPHIS, MCAFEE LOST INTEREST IN THE PROJECT BECAUSE THE LOCATION WAS
FAR REMOVED FROM THE POOL AREA OF THE COMPANIES IN WHICH HE WAS
INTERESTED.  DIXON THEREFORE PROCEEDED ON HIS OWN TO DRAFT AN INITIAL
PROPOSAL.  DURING THE PERIOD IN WHICH DIXON WAS PREPARING HIS PROPOSAL,
HE KEPT IN CLOSE CONTACT WITH SEVERAL GOVERNMENT OFFICIALS, ESPECIALLY
WENZELL.  THE NATURE AND SCOPE OF THESE ASSOCIATIONS WILL BE DISCUSSED
BELOW. 

ON FEBRUARY 19, 1954, DIXON MET WITH EUGENE A. YATES, CHAIRMAN OF THE
BOARD OF THE SOUTHERN COMPANY, A PUBLIC UTILITY HOLDING COMPANY. 
DIXON'S PURPOSE IN CALLING THIS MEETING WAS TO PERSUADE YATES THAT
SOUTHERN SHOULD JOIN MIDDLE SOUTH IN BUILDING THE PROPOSED POWER
PLANT.  THE NEXT DAY YATES NOTIFIED HUGHES AT THE BUREAU OF THE BUDGET
AND NICHOLS AT THE AEC THAT SOUTHERN HAD DECIDED TO JOIN IN THE
VENTURE. 

ON FEBRUARY 25, 1954, DIXON AND YATES (HEREINAFTER REFERRED TO AS THE
SPONSORS) SUBMITTED THEIR PROPOSAL TO THE AEC.  THEY OFFERED TO FORM A
NEW CORPORATION (MVG) WHICH WOULD FINANCE AND CONSTRUCT GENERATING
FACILITIES FROM WHICH 600,000 KW. OF ELECTRICAL POWER WOULD BE
DELIVERED TO TVA IN THE MEMPHIS AREA FOR THE ACCOUNT OF THE AEC.  WE DO
NOT THINK IT IS NECESSARY TO RELATE THE DETAILS OF THE PROPOSAL. 
SUFFICE IT TO SAY THAT AFTER A COMPREHENSIVE JOINT ANALYSIS BY TVA AND
THE AEC, THE GOVERNMENT DECIDED THAT THE COST ESTIMATES CONTAINED IN
THE PROPOSAL WERE TOO HIGH.  IN FACT, THE ANALYSIS SHOWED THAT THE
PROPOSAL WOULD COST OVER SEVEN MILLION DOLLARS MORE PER YEAR THAN THE
PROPOSED TVA PLANT AT FULTON WOULD HAVE COST.  AT THE SPONSORS'
REQUEST, ANOTHER ANALYSIS WAS MADE BY FRANCIS L. ADAMS, CHIEF OF THE
BUREAU OF POWER, FEDERAL POWER COMMISSION.  ADAMS CONFIRMED THE
CONCLUSIONS OF THE AEC AND TVA, AND SAID THAT THE FIGURES IN THE
PROPOSAL WERE MUCH HIGHER THAN A REASONABLE ESTIMATE OF COSTS TO THE
SPONSORS SHOULD REQUIRE.    BY MARCH 24, 1954, IT BECAME APPARENT TO
THE SPONSORS THAT THEIR INITIAL PROPOSAL WAS UNACCEPTABLE TO THE
GOVERNMENT.  THEREFORE, THEY WORKED FROM MARCH 26, TO APRIL 1, 1954, TO
DRAFT A PROPOSAL WHICH WOULD BE MORE AGREEABLE TO THE GOVERNMENT.  THIS
SECOND PROPOSAL WAS ULTIMATELY SUBMITTED TO THE AEC ON APRIL 12, 1954. 
AN INTENSIVE JOINT ANALYSIS WAS AGAIN MADE BY THE AEC AND TVA. 
ALTHOUGH THE FINDINGS OF FACT DO NOT SPECIFICALLY INDICATE WHEREIN THE
SECOND PROPOSAL DIFFERED FROM THE FIRST, THE SECOND PROPOSAL WAS MORE
TO THE GOVERNMENT'S LIKING, AND THE ANALYSTS SUGGESTED THAT IT COULD BE
A BASIS FOR THE NEGOTIATION OF A FINAL CONTRACT.  ON APRIL 24, 1954,
HUGHES SENT PRESIDENT EISENHOWER A MEMORANDUM REPORTING THE RESULTS OF
THE ANALYSIS AND RECOMMENDING THAT THE BUDGET BUREAU BE AUTHORIZED TO
INSTRUCT THE AEC TO CONCLUDE A FINAL AGREEMENT.  ON JUNE 16, 1954, THE
PRESIDENT AUTHORIZED AEC TO CONTINUE NEGOTIATIONS WITH THE SPONSORS AND
TO ATTEMPT TO CONSUMMATE AN AGREEMENT BASED GENERALLY UPON THE TERMS OF
THE SECOND PROPOSAL. 

THE NEGOTIATION OF THE FINAL CONTRACT BEGAN ON JULY 7, 1954, AND
CONCLUDED WITH THE SIGNING OF THE CONTRACT ON NOVEMBER 11, 1954.  THE
GOVERNMENT WAS REPRESENTED BY A "COMPETENT AND AGGRESSIVE STAFF OF
NEGOTIATORS."  (FN5)  ALTHOUGH THE FINAL CONTRACT WAS SLIGHTLY
DIFFERENT FROM THE SECOND PROPOSAL, IN A GENERAL WAY, IT WAS WITHIN THE
TERMS OF THAT PROPOSAL.  THE CONTRACT BECAME EFFECTIVE ON DECEMBER 17,
1954. 

IN JUNE 1955, AFTER THE RESPONDENT HAD TAKEN SOME PRELIMINARY STEPS
TOWARD PERFORMANCE OF THE CONTRACT, (FN6) THE SPONSORS LEARNED THAT
PRESIDENT EISENHOWER HAD REQUESTED THE BUREAU OF THE BUDGET, THE AEC
AND TVA TO CONSIDER WHETHER THE CONTRACT SHOULD BE TERMINATED BECAUSE
IN THE INTERIM THE CITY OF MEMPHIS HAD DECIDED TO CONSTRUCT A MUNICIPAL
POWER PLANT, THEREBY OBVIATING THE NEED IN THAT AREA FOR TVA-GENERATED
POWER.  ON JULY 11, 1955, THE SPONSORS WERE INFORMED BY THE CHAIRMAN OF
THE AEC THAT THE PRESIDENT OF THE UNITED STATES HAD DECIDED TO
TERMINATE THE CONTRACT.  DURING THE MONTHS THAT FOLLOWED,
REPRESENTATIVES OF THE SPONSORS AND OF THE AEC ATTEMPTED TO AGREE UPON
A MUTUALLY ACCEPTABLE BASIS FOR TERMINATING THE CONTRACT.  ON NOVEMBER
23, 1955, AFTER PROTRACTED CONGRESSIONAL DEBATE CONCERNING THE
PROPRIETY OF WENZELL'S ACTIVITIES ON BEHALF OF THE BUDGET BUREAU, THE
AEC ADVISED THE SPONSORS THAT, UPON THE ADVICE OF ITS COUNSEL, IT HAD
REACHED THE CONCLUSION THAT THE CONTRACT WAS NOT AN OBLIGATION WHICH
COULD BE RECOGNIZED BY THE GOVERNMENT.  THIS SUIT FOR DAMAGES WAS THEN
INITIATED. 

SECOND.  HAVING SKETCHED THE GENERAL BACKGROUND OF THIS LITIGATION,
WE THINK IT IS NOW APPROPRIATE TO SET FORTH IN SOME DETAIL A
DESCRIPTION OF WENZELL'S CONNECTION WITH THE GOVERNMENT AND OF THE ROLE
HE PLAYED IN THE NEGOTIATIONS, FOR IT IS THESE ACTIVITIES ON BEHALF OF
THE GOVERNMENT, AS WELL AS HIS AFFILIATION WITH FIRST BOSTON, WHICH
CONSTITUTE THE BASIS FOR THE GOVERNMENT'S ASSERTION OF A CONFLICT OF
INTEREST. 

WENZELL'S FIRST CONTACT WITH THE GOVERNMENT ACTUALLY ANTEDATES ANY OF
THE NEGOTIATIONS RELATING TO THE CONTRACT HERE IN QUESTION.  HOWEVER,
HIS EARLIER ASSOCIATION WITH THE GOVERNMENT DOES HAVE A BEARING ON THE
ISSUES WITH WHICH WE ARE PRIMARILY CONCERNED, AND WE SHALL THEREFORE
ADVERT BRIEFLY TO THAT PHASE OF WENZELL'S ACTIVITIES.  IN MAY 1953,
GEORGE D. WOODS, CHAIRMAN OF FIRST BOSTON, MET WITH DODGE AT THE
LATTER'S OFFICE IN THE BUREAU OF THE BUDGET.  WOODS EXPRESSED HIS
AGREEMENT WITH THE ADMINISTRATION'S NEWLY ANNOUNCED POLICY OF REDUCING
THE GOVERNMENT'S PARTICIPATION IN BUSINESS ACTIVITIES, AND HE OFFERED
THE SERVICES OF HIMSELF AND HIS FIRM IN ANY WAY THAT MIGHT HELP TO
ACHIEVE THE ADMINISTRATION'S OBJECTIVE.  DODGE REPLIED THAT HE WAS
INTERESTED IN HAVING SOME STUDIES MADE ON THE AMOUNT OF SUBSIDY THAT
TVA WAS RECEIVING FROM THE FEDERAL GOVERNMENT.  DODGE INDICATED THAT HE
HAD NOT BEEN ABLE TO FIND THE RIGHT PERSON TO CONDUCT THESE STUDIES,
AND HE ASKED WOODS IF HE COULD SUGGEST SOMEONE.  WOODS REPLIED THAT
FIRST BOSTON DID HAVE A MAN WHO HAD WORKED ON MANY UTILITY FINANCING
TRANSACTIONS AND WHO WOULD BE QUALIFIED TO DO THE WORK DESCRIBED BY
DODGE.  THE MAN REFERRED TO WAS WENZELL.  WOODS PROMISED THAT HE WOULD
ENDEAVOR TO MAKE WENZELL'S SERVICES AVAILABLE FOR THE SPECIAL PROJECT
DESCRIBED BY DODGE.  AT THE TIME, WENZELL WAS A VICE PRESIDENT OF FIRST
BOSTON AND ONE OF ITS DIRECTORS.  HE HAD BEEN WITH THE FIRM SINCE ITS
INCEPTION IN 1934 AND BEFORE THAT WITH ITS PREDECESSOR SINCE 1923.  HE
OWNED STOCK IN FIRST BOSTON, ALTHOUGH THE STOCK WAS IN HIS WIFE'S
NAME. 

UPON RETURNING TO NEW YORK, WOODS CONFERRED WITH WENZELL AND WITH
OTHER EXECUTIVES OF FIRST BOSTON.  WENZELL INDICATED HIS WILLINGNESS TO
TAKE THE JOB, AND NONE OF THE OTHER MEN CONSULTED HAD ANY OBJECTION.  A
MEETING BETWEEN DODGE AND WENZELL WAS THEREFORE ARRANGED FOR MAY 15,
1953.  AT THE MEETING, IT WAS AGREED THAT WENZELL WOULD SERVE AS A PART
TIME CONSULTANT TO THE BUREAU, SPENDING ONE OR TWO DAYS A WEEK IN
WASHINGTON UNTIL THE PROJECT WAS COMPLETED.  WENZELL WAS TO RECEIVE NO
COMPENSATION FROM THE GOVERNMENT, BUT HE WAS TO BE GIVEN $10 PER DAY IN
LIEU OF SUBSISTENCE PLUS TRANSPORTATION EXPENSES.  IT WAS UNDERSTOOD
THAT HE WOULD NEITHER RESIGN HIS POSITION WITH FIRST BOSTON NOR
RELINQUISH ANY PART OF HIS REGULAR SALARY OR YEARLY BONUS BASED ON THE
BUSINESS WHICH HE BROUGHT TO THE FIRM. 

WENZELL'S TASK WAS TO MAKE A FINANCIAL ANALYSIS OF TVA FOR THE
PURPOSE OF ESTIMATING THE AMOUNT AND SOURCE OF THE SUBSIDY GIVEN TO TVA
BY THE GOVERNMENT.  WENZELL BEGAN HIS WORK FOR THE BUREAU ON MAY 20,
1953, AND HIS FINAL REPORT WAS SUBMITTED ON SEPTEMBER 20, 1953.  DURING
HIS FOUR MONTHS WITH THE GOVERNMENT, WENZELL WAS MADE PRIVY TO A VAST
QUANTITY OF DATA, MUCH OF IT CONFIDENTIAL, CONTAINED IN THE TVA FILES. 
WENZELL'S FINAL REPORT WAS GENERALLY FAVORABLE TOWARD TVA'S TECHNICAL
OPERATIONS, ALTHOUGH IT SUGGESTED THAT SOME OF TVA'S INTERNAL
ACCOUNTING SYSTEMS SHOULD BE REVISED AND THAT ITS SERVICE AREA SHOULD
NOT BE EXPANDED.  THE REPORT ALSO CONTAINED MANY UNSOLICITED
RECOMMENDATIONS TO THE EFFECT THAT FUTURE DEMANDS FOR POWER IN AREAS
SUPPLIED BY TVA SHOULD BE MET BY PRIVATE OR MUNICIPAL POWER PLANTS
RATHER THAN BY AN EXPANSION OF TVA'S FACILITIES.  WHEN THE REPORT WAS
DELIVERED TO DODGE, HE READ IT BRIEFLY AND WAS SURPRISED TO SEE THAT
WENZELL HAD INCLUDED IN THE REPORT THESE RECOMMENDATIONS, WHICH HAD NOT
BEEN REQUESTED.  SUBSEQUENTLY, AFTER WENZELL HAD SEVERED HIS CONNECTION
WITH THE BUREAU, HE SHOWED A COPY OF HIS REPORT TO WOODS, ALTHOUGH
DODGE HAD EXPRESSLY ADMONISHED WENZELL THAT THE REPORT WAS A
CONFIDENTIAL DOCUMENT AND SHOULD BE SHOWN TO NO ONE. 

WENZELL'S NEXT CONTACT WITH THE GOVERNMENT CAME IN JANUARY 1954,
SHORTLY AFTER THE BUREAU HAD COMMENCED THE ABOVE-DESCRIBED PRELIMINARY
NEGOTIATIONS WITH MCAFEE AND DIXON.  AT THE REQUEST OF HUGHES, WENZELL
CAME TO WASHINGTON ON JANUARY 18, 1954, TO CONFER ON THE POSSIBILITY OF
HIS RETURNING TO THE BUREAU ON A PART-TIME BASIS TO ASSIST IN THE
NEGOTIATIONS WITH DIXON.  THE DECISION TO CALL UPON WENZELL'S TALENTS
WAS MADE BY DODGE AND HUGHES, FOR IT WAS THOUGHT THAT WENZELL'S
KNOWLEDGE OF TVA, BASED UPON THE ANALYSIS THERETOFORE MADE BY HIM, AND
OF COMMERCIAL TRANSACTIONS GENERALLY WOULD BE OF GREAT VALUE DURING THE
NEGOTIATIONS.  AT THE MEETING, HUGHES INFORMED WENZELL OF THE
GOVERNMENT'S INTENTION TO ARRANGE FOR THE CONSTRUCTION OF A PRIVATELY
OWNED POWER PLANT NEAR MEMPHIS.  WENZELL WAS ALSO TOLD ABOUT THE
EXPLORATORY NEGOTIATIONS WHICH HAD TAKEN PLACE IN DECEMBER 1953 BETWEEN
THE AEC AND MCAFEE AND DIXON.  WENZELL'S CHIEF RESPONSIBILITY WAS TO
ACT AS A CONSULTANT IN THE TECHNICAL AREA OF INTEREST COSTS FOR ANY
FINANCING THAT WOULD HAVE TO BE UNDERTAKEN IN CONNECTION WITH THE
CONTRACT.  AGAIN, AS IN 1953, WENZELL WAS NOT ASKED TO SEVER HIS
CONNECTION WITH FIRST BOSTON, AND HE DID NOT DO SO.  AT THE CLOSE OF
THE MEETING, WENZELL INFORMED HUGHES THAT HE KNEW BOTH DIXON AND MCAFEE
AND THAT IN 1948, OR 1949, HE HAD TALKED TO DIXON IN CONNECTION WITH
SERVICES THAT FIRST BOSTON PROPOSED TO RENDER TO ONE OF DIXON'S
COMPANIES.  HUGHES ASKED WENZELL TO ATTEND A FORTHCOMING MEETING
BETWEEN THE AEC AND DIXON AND MCAFEE.  "HUGHES EMPHASIZED THE NEED FOR
GREAT SPEED ON THE PROJECT," AND HE ASKED WENZELL "TO USE SUCH
INFLUENCE AS HE HAD WITH THE PRIVATE UTILITY PEOPLE TO IMPRESS UPON
THEM THE NEED FOR PROMPT ACTION ON THE MATTER." 

AT THE REQUEST OF HUGHES, WENZELL WENT TO THE AEC ON THE AFTERNOON OF
JANUARY 18, 1954, TO CONFER WITH STRAUSS.  STRAUSS ACQUAINTED WENZELL
WITH THE PURPOSE OF THE MEETING SCHEDULED FOR JANUARY 20, AND IMPRESSED
UPON WENZELL THE NECESSITY FOR PROMPT ACTION.  ON THE FOLLOWING DAY,
WENZELL CALLED DIXON AND TOLD HIM THAT HE WOULD BE PRESENT AT THE
JANUARY 20 MEETING AS A REPRESENTATIVE OF THE BUDGET BUREAU AND THAT
DIXON SHOULD NOT BE SURPRISED WHEN HE SAW WENZELL AT THE MEETING. 

AS PREARRANGED, WENZELL ATTENDED THE JANUARY 20 MEETING, AND HE WAS
THE ONLY REPRESENTATIVE OF THE BUDGET BUREAU THERE.  HOWEVER, HE DID
NOT COME TO THE MEETING UNESCORTED.  "ON HIS OWN VOLITION AND WITHOUT
CONSULTING ANY REPRESENTATIVE OF THE  ...  GOVERNMENT OR OF FIRST
BOSTON, WENZELL TOOK WITH HIM PAUL MILLER, AN ASSISTANT IN FIRST
BOSTON'S BUYING DEPARTMENT."  THE MEETING LASTED FOR SEVERAL HOURS AND
THE DRIFT OF THE DISCUSSION HAS BEEN DESCRIBED ABOVE.  AT THE CLOSE OF
THE MEETING, DIXON SAID THAT HE WOULD BEGIN INVESTIGATING THE
FEASIBILITY OF THE TYPE OF CONTRACT DESIRED BY THE GOVERNMENT, AND IT
WAS AGREED THAT WENZELL WOULD TALK TO TONY SEAL OF EBASCO, AN
ENGINEERING FIRM WHICH SERVICED DIXON'S PROJECTS. 

WENZELL RETURNED TO NEW YORK AFTER THE MEETING, BUT, BEFORE HE LEFT,
HUGHES "REQUESTED WENZELL TO STAY IN TOUCH WITH DIXON AND HIS
ASSOCIATES ON THE DEVELOPMENT OF A PROPOSAL AND PARTICULARLY TO HELP
POINT UP THE REAL COST OF MONEY TO BE USED IN FINANCING THE PROJECT." 
ON JANUARY 21, 1954, WENZELL CONFERRED WITH SEAL.  HE INFORMED SEAL OF
WHAT HAD HAPPENED IN WASHINGTON AND INSTRUCTED HIM TO BEGIN A STUDY OF
THE PROPOSED PROJECT.  SEAL MET WITH WENZELL AGAIN ON JANUARY 27, 1954,
AND THE FORMER DESCRIBED HIS PROGRESS ON THE STUDY HE WAS MAKING. 
"WENZELL STATED THAT HE WAS AT  ... SEAL'S SERVICE AS A REPRESENTATIVE
OF THE BUREAU OF THE BUDGET ON THE ALL-IMPORTANT MATTER OF THE COST OF
INTEREST ON MONEY THAT WOULD BE BORROWED TO FINANCE THE CONSTRUCTION OF
THE PLANT." 

WENZELL WENT TO WASHINGTON ON FEBRUARY 4, 1954, TO INFORM HUGHES OF
WHAT HAD TRANSPIRED AT HIS MEETINGS WITH SEAL.  HE MET DIXON IN
WASHINGTON, AND THE TWO MEN FLEW TO NEW YORK TOGETHER THAT EVENING. 
DURING THE FLIGHT, DIXON "ASKED WENZELL TO DO HIM A PERSONAL FAVOR AND
ASCERTAIN THE OPINION OF FIRST BOSTON ON WHAT THE INTEREST RATES IN THE
THEN CURRENT MONEY MARKET WOULD BE FOR FINANCING A PROJECT SIMILAR TO
THE OVEC PROJECT."  (FN7)  ON FEBRUARY 5, 1954, WENZELL MET WITH OTHER
EXECUTIVES OF FIRST BOSTON IN AN ATTEMPT TO OBTAIN THE INFORMATION
REQUESTED BY DIXON.  AFTER WENZELL THOUGHT HE HAD FOUND THE ANSWER TO
DIXON'S QUESTION, HE CALLED DIXON AND ADVISED HIM OF THE INFORMATION HE
HAD ACQUIRED FROM HIS COLLEAGUES AT FIRST BOSTON.  DURING THE WEEK THAT
FOLLOWED, WENZELL MADE FURTHER STUDIES AND ENGRAFTED CERTAIN
REFINEMENTS ONTO HIS CALCULATIONS.  THEN, ON FEBRUARY 14, 1954, HE
ATTENDED A MEETING IN DIXON'S OFFICE AND GAVE DIXON THE NEW FIGURES
WHICH HE HAD COMPUTED. 

AFTER MCAFEE DROPPED OUT OF THE NEGOTIATIONS BECAUSE OF THE PROPOSED
SITE OF THE NEW PLANT, DIXON BEGAN TO SEARCH OUT SUPPORT FROM OTHER
QUARTERS.  ONE OF THOSE FROM WHOM HE SOUGHT ASSISTANCE WAS YATES. 
DIXON ARRANGED A MEETING WITH YATES ON FEBRUARY 19, AND HE REQUESTED
WENZELL, WHO HAD KNOWN YATES FOR SEVERAL YEARS, TO BE PRESENT.  THE
MEETING OCCURRED AS SCHEDULED, AND WENZELL WAS THE ONLY REPRESENTATIVE
OF THE GOVERNMENT PRESENT.  AS INDICATED, YATES AGREED TO JOIN THE
PROJECT ON FEBRUARY 20, 1954. 

DURING HIS NEXT TRIP TO WASHINGTON ON FEBRUARY 23, 1954, WENZELL
DRAFTED A LETTER TO DIXON GIVING HIS OPINION AS TO THE COST OF MONEY. 
THE INFORMATION IN THIS LETTER CONFORMED TO THE ORAL OPINION WHICH
WENZELL HAD RENDERED ON FEBRUARY 14, 1954.  THE LETTER WAS ON FIRST
BOSTON STATIONERY AND WAS SIGNED BY WENZELL AS AN OFFICER OF FIRST
BOSTON.  TWO DAYS LATER, ON FEBRUARY 25, 1954, THE SPONSORS SUBMITTED
THEIR FIRST PROPOSAL.  THE PROPOSAL CONTAINED ONLY ONE REFERENCE TO THE
COST OF MONEY, AND THAT PARAGRAPH READ AS FOLLOWS: 

"WE HAVE RECEIVED ASSURANCES FROM RESPONSIBLE FINANCIAL SPECIALISTS
EXPRESSING THE BELIEF THAT FINANCIAL ARRANGEMENTS CAN BE CONSUMMATED ON
THE BASIS WHICH WE HAVE USED IN MAKING THIS PROPOSAL AND UNDER EXISTING
MARKET CONDITIONS, AND OUR OFFER IS CONDITIONED UPON SUCH
CONSUMMATION." 

THE "RESPONSIBLE FINANCIAL SPECIALISTS" UPON WHICH THE SPONSORS
RELIED WERE WENZELL AND HIS COLLEAGUES AT FIRST BOSTON, AND THE COST
DATA UPON WHICH THEY CONDITIONED THEIR PROPOSAL WAS THAT WHICH WAS
CONTAINED IN THE OPINION LETTER DRAFTED BY WENZELL. 

WENZELL DID NOT PARTICIPATE IN THE INITIAL STUDY OF THE SPONSORS'
PROPOSAL, BUT ON MARCH 1, 1954, HE ATTENDED A BUDGET BUREAU STAFF
MEETING WHICH HAD BEEN CALLED FOR THE PURPOSE OF COMPLETING THE REVIEW
OF THE PROPOSAL.  WENZELL BROUGHT WITH HIM TO THIS MEETING POWELL
ROBINSON, AN ASSISTANT VICE PRESIDENT OF FIRST BOSTON'S SALES
DEPARTMENT.  WENZELL, WHO BY MARCH 1 HAD COMPLETED HIS FUNCTION AS A
CONSULTANT ON THE COST OF MONEY, NOW ASSUMED THE ROLE OF A CONSULTANT
ON THE TOTAL COST OF THE PROJECT.  HIS INITIAL REACTION WAS THAT THE
COST ESTIMATES CONTAINED IN THE FIRST PROPOSAL WERE TOO HIGH.  WHEN IT
BECAME APPARENT THAT WENZELL COULD NOT ANSWER ALL OF THE TECHNICAL
QUESTIONS RELATING TO ENGINEERING COSTS, WENZELL DECIDED TO CALL SEAL
DOWN FROM NEW YORK.  SEAL ARRIVED ON THE FOLLOWING DAY AND THE MEETING
WAS CONTINUED.  AS IT TURNED OUT, SEAL WAS ALSO UNABLE TO ANSWER ALL
THE QUESTIONS ASKED BY STAFF MEMBERS, AND HUGHES WAS ADVISED THAT,
DESPITE WENZELL'S INSIGHT INTO THE PROBLEM, THERE STILL REMAINED AREAS
OF UNCERTAINTY.  IT WAS THEN SUGGESTED BY A STAFF MEMBER THAT A JOINT
AEC-TVA ANALYSIS BE MADE.  IMMEDIATELY AFTER HUGHES MADE HIS DECISION,
WENZELL INFORMED SEAL THAT SUCH AN ANALYSIS WAS TO BE MADE. 

ON MARCH 9, 1954, A MEETING TOOK PLACE AT THE BUREAU OF THE BUDGET. 
THE JOINT AEC-TVA ANALYSIS WAS DISCUSSED, AND IT WAS THE VIEW OF ALL
PRESENT THAT THE COST ESTIMATES WERE TOO HIGH.  WENZELL WAS THEREFORE
INSTRUCTED TO INFORM SEAL THAT THE SPONSORS SHOULD TRY TO SUBMIT A MORE
ACCEPTABLE PROPOSAL.  WENZELL CONVEYED THE INFORMATION TO SEAL AS
REQUESTED.  ON THE NEXT DAY, WENZELL ARRANGED A MEETING BETWEEN DUNCAN
LINSLEY, THE CHAIRMAN OF FIRST BOSTON'S EXECUTIVE COMMITTEE, AND THE
SPONSORS.  DIXON HAD REQUESTED THE MEETING SO THAT HE COULD CONFIRM
WITH A RELIABLE SOURCE THE COST-OF-MONEY INFORMATION PREVIOUSLY GIVEN
HIM BY WENZELL. 

ON MARCH 15, WENZELL PARTICIPATED IN ANOTHER BUDGET BUREAU MEETING
WHICH HAD BEEN CALLED TO DISCUSS THE FINAL AEC-TVA ANALYSIS.  IN
ADDITION TO WENZELL, THOSE PRESENT AT THE MEETING WERE THE SPONSORS AND
DODGE.  THE SPONSORS REQUESTED THAT AN INDEPENDENT ANALYSIS OF THE
PROPOSAL BE MADE, AND WENZELL SUGGESTED THAT FRANCIS L. ADAMS, CHIEF OF
THE BUREAU OF POWER, FEDERAL POWER COMMISSION, BE REQUESTED TO MAKE THE
ANALYSIS.  AS INDICATED ABOVE, THIS SUGGESTION WAS SUBSEQUENTLY
ADOPTED. 

ON MARCH 16, 1954, SEVERAL REPRESENTATIVES OF THE SPONSORS MET IN
DIXON'S HOTEL ROOM TO DRAFT A LETTER REPLYING TO THE UNFAVORABLE
CONCLUSIONS CONTAINED IN THE AEC-TVA ANALYSIS.  THE EVIDENCE DOES NOT
CLEARLY DEMONSTRATE WHETHER OR NOT WENZELL WAS PRESENT AT THIS MEETING,
BUT THE COURT OF CLAIMS FOUND THAT WENZELL SAW THE LETTER AND MADE
SEVERAL CHANGES ON IT FOR THE SPONSORS IN HIS OWN HANDWRITING.  THE
LETTER WAS NEVER SENT TO THE AEC. 

ON MARCH 23, 1954, WENZELL MET WITH ADAMS AND CONFERRED WITH HIM ON
THE PROPOSAL AND THE ANALYSIS WHICH ADAMS WAS MAKING.  WHILE ADAMS WAS
PREPARING HIS ANALYSIS, THE SPONSORS WERE WORKING ON SOME REVISED
ESTIMATES.  A MEETING WAS CALLED AT THE BUDGET BUREAU FOR APRIL 3,
1954, TO DISCUSS BOTH ADAMS' ANALYSIS AND THE SPONSORS' NEW ESTIMATES. 
AT THE MEETING, WENZELL ONCE AGAIN CONFIRMED THE INFORMATION HE HAD
PREVIOUSLY GIVEN THE SPONSORS ON THE COST OF MONEY.  AT THE CONCLUSION
OF THE MEETING, IT WAS DECIDED THAT THE SPONSORS SHOULD UNDERTAKE TO
PREPARE A NEW PROPOSAL IN LINE WITH THEIR REVISED ESTIMATES.  ON THE
AFTERNOON OF APRIL 3, WENZELL SAW NICHOLS OF THE AEC, WHO SAID THAT THE
SPONSORS' MOST RECENT ESTIMATES MIGHT PROVE ACCEPTABLE.  "HE SUGGESTED
THAT WENZELL ENCOURAGE THE SPONSORS TO REFINE THEIR FIGURES." 

APRIL 3 WAS THE LAST TIME THAT WENZELL CAME TO WASHINGTON IN HIS
CAPACITY AS A CONSULTANT TO THE BUREAU.  HOWEVER, THE SPONSORS
CONSULTED HIM FROM TIME TO TIME IN THE PREPARATION OF THEIR SECOND
PROPOSAL, WHICH WAS DATED APRIL 10, 1954, AND WAS SUBMITTED TO THE AEC
ON APRIL 12, 1954.  WENZELL RECONFIRMED THE INFORMATION WHICH HE HAD
PREVIOUSLY GIVEN THE SPONSORS ON THE COST OF MONEY, AND "THIS
INFORMATION WAS RELIED UPON BY THE SPONSORS IN THE DRAFTING OF THE
SECOND PROPOSAL."  THE SECOND PROPOSAL, LIKE THE FIRST, CONTAINED A
PARAGRAPH INDICATING THAT THE PROPOSAL RELIED UPON WENZELL'S ADVICE AND
CONDITIONED THEIR OFFER ON THAT ADVICE. 

WENZELL TOOK NO PART IN THE FINAL NEGOTIATIONS WHICH LED TO A FORMAL
CONTRACT BASED UPON THE SECOND PROPOSAL.  THE COURT OF CLAIMS FOUND
THAT WENZELL TERMINATED HIS ASSOCIATION WITH THE BUREAU ON APRIL 3,
1954; HOWEVER, WENZELL FELT THAT HIS RELATIONSHIP WITH THE BUREAU ENDED
ON THE DATE OF THE SPONSORS' SECOND PROPOSAL, APRIL 10, 1954.  THE
FINDINGS SHOW THAT WENZELL RECEIVED A TELEPHONE CALL FROM DIXON
REGARDING THE SECOND PROPOSAL AS LATE AS APRIL 10, 1954, AND THAT
MCCANDLESS AND WENZELL ALSO HAD A TELEPHONE CONVERSATION ON THAT DATE. 
WENZELL NEVER TENDERED EITHER AN ORAL OR WRITTEN RESIGNATION; HE MERELY
STOPPED WORKING ON BEHALF OF THE BUREAU.  (FN8) 

THIRD.  THE FINDINGS OF THE COURT OF CLAIMS MAKE IT PERFECTLY CLEAR
THAT THE CONFLICT-OF-INTEREST QUESTION IN THE CASE AROSE MANY MONTHS
PRIOR TO THE TIME AT WHICH THE GOVERNMENT CONCLUDED THAT THE CONTRACT
WAS UNENFORCEABLE.  THOSE WHO FIRST SHOWED CONCERN ABOUT THE DUALITY OF
WENZELL'S INTERESTS WERE THE SPONSORS THEMSELVES.  AROUND FEBRUARY 20,
1954, DIXON'S COUNSEL, DANIEL JAMES, EXPRESSED APPREHENSION ABOUT THE
FACT THAT WENZELL WAS AN OFFICER OF FIRST BOSTON AND WAS ALSO AN
EMPLOYEE OF THE BUDGET BUREAU.  "JAMES FELT THAT IF IT BECAME NECESSARY
TO FINANCE THE PROJECT, FIRST BOSTON WOULD RECEIVE FIRST CONSIDERATION
AS FINANCIAL AGENT BECAUSE OF ITS EXPERIENCE ON THE OVEC PROJECT. 
THEREFORE, JAMES TOLD DIXON THAT SINCE WENZELL WAS AN OFFICER OF FIRST
BOSTON AND WAS ALSO EMPLOYED BY THE BUDGET BUREAU, A DIFFICULT
SITUATION MIGHT BE CREATED IF DIXON SHOULD SUBSEQUENTLY ASK FIRST
BOSTON TO HANDLE THE FINANCING OF THE PROJECT."  JAMES THOUGHT THAT THE
PUBLIC POWER ADVOCATES WOULD "MAKE IT APPEAR THAT THERE WAS A TAINT OF
ILLEGALITY" ATTACHED TO THE PROJECT.  AS A RESULT OF HIS DISCUSSION
WITH JAMES, DIXON LATER SPOKE TO WENZELL ABOUT THE "EMBARRASSMENT" THAT
MIGHT RESULT IF FIRST BOSTON WERE TO BE RETAINED AS FINANCIAL AGENT. 
DIXON SUGGESTED THAT WENZELL TALK TO HIS SUPERIORS AT THE BUDGET BUREAU
ABOUT THE SITUATION. 

ON FEBRUARY 23, 1954, WENZELL FOLLOWED DIXON'S ADVICE AND SPOKE TO
HUGHES ABOUT THE MATTER OF DUALITY.  HE ALLUDED TO THE FACT THAT HE HAD
GIVEN THE SPONSORS AN OPINION LETTER ON THE PROBABLE COST OF MONEY FOR
FINANCING THE PROJECT, AND THAT FIRST BOSTON WAS THE SOURCE OF THE
INFORMATION GIVEN TO THE SPONSORS.  "HE THEN POINTED OUT TO HUGHES THAT
IF IT LATER DEVELOPED THAT FIRST BOSTON SHOULD BE ASKED TO HANDLE THE
FINANCING FOR THE SPONSORS AND SHOULD GIVE THEM A LETTER SIMILAR TO
WENZELL'S DRAFT, THE FACTS THAT HE HAD BEEN THE INSTRUMENTALITY FOR
OBTAINING THE INTEREST FIGURE FROM FIRST BOSTON, HAD GIVEN THE FIGURE
TO THE SPONSORS, AND HAD USED THE SAME FIGURE IN HIS DRAFT COULD CAUSE
CRITICISM AGAINST AND EMBARRASSMENT TO THE ADMINISTRATION, IN THAT IT
COULD BE CHARGED THAT HE, AS A FIRST BOSTON OFFICER AND WHILE EMPLOYED
AS A SPECIAL CONSULTANT TO THE BUREAU OF THE BUDGET, HAD IMPROPERLY
USED HIS POSITION IN THE BUREAU TO OBTAIN BUSINESS FOR FIRST BOSTON." 
HUGHES REPLIED THAT HE THOUGHT WENZELL WAS EXAGGERATING THE PROBLEM,
BUT HE NEVERTHELESS ADVISED WENZELL TO DISCUSS THE MATTER WITH HIS
ASSOCIATES AT FIRST BOSTON, WITH HIS COUNSEL, AND ULTIMATELY WITH
DODGE. 

WENZELL RETURNED TO NEW YORK ON FEBRUARY 23, 1954, AND SPOKE TO JAMES
COGGESHALL, PRESIDENT OF FIRST BOSTON.  COGGESHALL THOUGHT THAT THE
MATTER WAS IMPORTANT AND SUGGESTED THAT FIRST BOSTON'S COUNSEL,
SULLIVAN AND CROMWELL, BE CONSULTED.  ARTHUR DEAN, THE PARTNER IN THE
FIRM WHO GENERALLY HANDLED FIRST BOSTON'S BUSINESS, WAS LEAVING TOWN,
AND HE SUGGESTED THAT WENZELL SEE JOHN RABEN, ANOTHER MEMBER OF THE LAW
FIRM.  ON FEBRUARY 26, 1954, WENZELL MET WITH RABEN AND DESCRIBED THE
ACTIVITIES IN WHICH HE HAD ENGAGED ON BEHALF OF THE BUDGET BUREAU. 
"RABEN ADVISED WENZELL THAT HE SHOULD TERMINATE HIS RELATIONSHIP AS
CONSULTANT WITH THE BUDGET BUREAU FORTHWITH AND IN WRITING.  HE ALSO
ADVISED THAT IF THE PROPOSAL WAS LATER ACCEPTED AND FIRST BOSTON WAS
REQUESTED TO HANDLE THE FINANCING, THE BOARD OF DIRECTORS OF FIRST
BOSTON SHOULD CONSIDER WHETHER THEY WANTED TO ACCEPT THE BUSINESS AND,
IF SO, WHETHER THEY SHOULD CHARGE A FEE.  FINALLY, HE TOLD WENZELL THAT
HE SHOULD KEEP DODGE AND HUGHES INFORMED ABOUT ANY DEVELOPMENTS IN THE
MATTER, INCLUDING ANY DECISION WHICH FIRST BOSTON MIGHT LATER MAKE AS
TO HANDLING THE FINANCING OF THE PROJECT."  ON THE SAME DAY RABEN
TELEPHONED DEAN, WHO CONFIRMED THE ADVICE WHICH RABEN HAD GIVEN
WENZELL. 

DURING THE DAYS THAT FOLLOWED, WENZELL, IN CONVERSATION, RECOGNIZED
THE DANGER OF HIS DUAL POSITION, BUT HE DID NOT RESIGN, AS HE HAD BEEN
ADVISED TO DO.  ON ONE OCCASION, HE WAS DESCRIBING HIS UNEASINESS TO
ONE OF HIS COWORKERS AT THE BUDGET BUREAU, AND HIS COLLEAGUE SAID THAT
HE THOUGHT WENZELL "WAS 'WORKING BOTH SIDES OF THE STREET' AND WAS
LIKELY TO GET IN SERIOUS TROUBLE.  HE SUGGESTED THAT WENZELL'S ACTIONS
WERE ATTRIBUTABLE TO HIS LACK OF FAMILIARITY WITH THE RESTRICTIONS
APPLICABLE TO GOVERNMENT EMPLOYEES AS COMPARED WITH PRACTICES IN
PRIVATE BUSINESS."  ON ANOTHER OCCASION IN EARLY MARCH 1954, WENZELL
TOLD OTHER ASSOCIATES AT THE BUREAU THAT "HE FELT THAT HE WAS IN AN
AWKWARD POSITION IN CONNECTION WITH HIS WORK ON THE SPONSORS'
PROPOSAL."  THEN, ON MARCH 9, 1954, WENZELL SPOKE TO DODGE ABOUT HIS
PROBLEM.  "DODGE TOLD WENZELL THAT IF THERE WAS ANY LIKELIHOOD THAT
FIRST BOSTON MIGHT PARTICIPATE IN ANY FINANCING WHICH DEVELOPED IN THE
FUTURE, WENZELL SHOULD FINISH HIS WORK WITH THE BUREAU AS QUICKLY AS
POSSIBLE." 

IN THE MEANTIME, BOTH JAMES AND DIXON LEARNED THAT WENZELL HAD BEEN
ADVISED BY HIS COUNSEL TO RESIGN IMMEDIATELY.  WHEN IN EARLY MARCH
1954, JAMES LEARNED THAT WENZELL HAD NOT YET RESIGNED, HE ASKED HUGHES
WHY WENZELL HAD BEEN PERMITTED TO CONTINUE AS A CONSULTANT TO THE
BUREAU.  JAMES EXPRESSED THE SAME FEARS TO HUGHES THAT HE HAD EARLIER
EXPRESSED TO DIXON. 

ON MARCH 3, 1954, RABEN CALLED WENZELL TO FIND OUT WHETHER THE LATTER
HAD RESIGNED.  WENZELL SAID THAT HE HAD NOT RESIGNED, BUT HE ASSURED
RABEN THAT HE WAS IN THE PROCESS OF DOING SO.  DEAN THEN TELEPHONED
WENZELL AND TOLD HIM "TO RESIGN PROMPTLY AND IN WRITING."  DEAN'S
CONCERN CONTINUED, AND ON MARCH 10, 1954, HE TOLD RABEN TO CALL WENZELL
AGAIN TO FIND OUT WHETHER HE HAD RESIGNED.  WENZELL INDICATED THAT HE
HAD NOT AS YET RESIGNED, BUT THAT HE WOULD DO SO IMMEDIATELY. 
CONSEQUENTLY, RABEN TOOK NO FURTHER ACTION ON THE MATTER.  HOWEVER, AS
INDICATED, WENZELL NEVER RESIGNED AND DID NOT CEASE TO ACT FOR THE
BUREAU UNTIL APPROXIMATELY THE DATE ON WHICH THE SECOND PROPOSAL WAS
SUBMITTED. 

FOURTH.  THE FINAL SET OF FACTS WITH WHICH WE ARE CONCERNED RELATES
TO THE RETENTION OF FIRST BOSTON AS THE FINANCING AGENT FOR THE
PROJECT.  ON APRIL 12, 1954, THE DAY ON WHICH THE SECOND PROPOSAL WAS
SUBMITTED TO THE GOVERNMENT, THE SPONSORS MET WITH NUMEROUS EXECUTIVES
OF FIRST BOSTON, AMONG WHOM WAS WENZELL.  THE SPONSORS REQUESTED A
LETTER CONFIRMING WENZELL'S INFORMATION ON INTEREST COSTS.  FIRST
BOSTON WAS ALSO ASKED TO PREPARE A MEMORANDUM ON WHAT IT THOUGHT WOULD
BE A PROPER FINANCIAL PLAN FOR THE PROJECT.  AT THIS MEETING, WENZELL
HAD DISCARDED HIS BUDGET BUREAU HAT, AND HAD RESUMED HIS ROLE AS A
FIRST BOSTON VICE PRESIDENT.  BY THE TIME OF THE MEETING, WENZELL
"EXPECTED THAT FIRST BOSTON WOULD HANDLE THE FINANCIAL ARRANGEMENTS FOR
THE SPONSORS IF A CONTRACT RESULTED FROM" THE SECOND PROPOSAL. 

ABOUT THE MIDDLE OF APRIL 1954, AN EXECUTIVE AT LEHMAN BROTHERS,
ANOTHER MAJOR INVESTMENT BANKING FIRM, LEARNED OF THE POSSIBILITY OF A
CONTRACT BETWEEN THE SPONSORS AND THE GOVERNMENT.  LEHMAN BROTHERS
THEREUPON NOTIFIED THE SPONSORS THAT IT WISHED TO BE CONSIDERED IN
CONNECTION WITH THE FINANCING OF THE PROJECT.  SUBSEQUENTLY, IN MAY
1954, DIXON TOLD WOODS THAT IF FIRST BOSTON WAS TO ARRANGE FOR THE
FINANCING, IT WOULD PROBABLY BE A GOOD IDEA FOR LEHMAN BROTHERS ALSO TO
BE ASSOCIATED WITH THE PROJECT.  WOODS WAS VERY COOL TO THE IDEA OF
LEHMAN BROTHERS' PARTICIPATION, AND HE INDICATED THAT HE WOULD HAVE TO
CONSULT HIS COLLEAGUES ABOUT IT. 

ON MAY 11, 1954, WOODS TOLD DIXON THAT FIRST BOSTON DID NOT WISH TO
SHARE THE FINANCING ARRANGEMENTS WITH LEHMAN BROTHERS, AND THAT IT
MIGHT BE BETTER FOR FIRST BOSTON TO WITHDRAW FROM THE PROJECT. 
HOWEVER, SAID WOODS, IF DIXON DID NOT WANT LEHMAN BROTHERS TO HANDLE
THE FINANCING ALONE, FIRST BOSTON WOULD BE WILLING TO ASSOCIATE WITH
LEHMAN BROTHERS "ON THE CONDITIONS THAT FIRST BOSTON WOULD HAVE THE
DOMINANT POSITION SO FAR AS AUTHORITY WAS CONCERNED AND WOULD ALSO HAVE
THE SENIOR POSITION WITH RESPECT TO ADVERTISING AND THE DIVISION OF
FEES."  WOODS POINTED OUT THAT IN THE FINANCIAL BUSINESS SENIOR
POSITION AS TO ADVERTISING WAS A MATTER OF GREAT IMPORTANCE.  HE FELT
THAT FIRST BOSTON WOULD ACHIEVE GREAT PRESTIGE WERE IT TO ARRANGE FOR
THE FINANCING OF THE PROJECT, AND THAT AS A RESULT OF ITS ACTIVITIES,
FIRST BOSTON WOULD PROBABLY RECEIVE OTHER BUSINESS OF THE SAME KIND. 

THEREAFTER, FIRST BOSTON, HAVING ALREADY GIVEN DIXON A LETTER
CONFIRMING WENZELL'S INFORMATION ON INTEREST COSTS, BEGAN TO PREPARE A
PLAN FOR THE DEBT FINANCING.  ALTHOUGH WENZELL WAS NOT DIRECTLY
RESPONSIBLE FOR THE PREPARATION OF THE PLAN, HE DID ASSIST THOSE WHO
WERE DRAFTING IT.  AT A MEETING ON MAY 18, 1954, THE FINAL DRAFT PLAN
FOR THE FINANCING OF THE PROJECT WAS DISCUSSED BY THE SPONSORS, FIRST
BOSTON, AND LEHMAN BROTHERS.  THE PLAN CALLED FOR THE DIRECT PLACEMENT
OF UP TO $93,000,000 WORTH OF BONDS AND UP TO $27,000,000 WORTH OF
UNSECURED NOTES.  THE PLAN WAS APPROVED, AND IT WAS ALSO DECIDED "THAT
THE FEE FOR THE FINANCIAL AGENTS WOULD BE DIVIDED ON THE BASIS OF 60
PERCENT TO FIRST BOSTON AND 40 PERCENT TO LEHMAN BROTHERS AND THAT
FIRST BOSTON WOULD HAVE THE PREFERRED POSITION ON ANY ADVERTISING." 

SINCE NO FORMAL AGREEMENT OF RETAINER WAS EVER SIGNED, IT IS
DIFFICULT TO PINPOINT THE DATE ON WHICH FIRST BOSTON WAS ACTUALLY
RETAINED.  HOWEVER, DIXON BELIEVED THAT FIRST BOSTON HAD BEEN RETAINED
ON APRIL 12, WHEN IT HAD BEEN ASKED TO PREPARE AN OPINION LETTER AND A
MEMORANDUM ON PROCEDURES TO BE USED IN FINANCING THE PROJECT.    SOME
TIME IN LATE MAY 1954, WOODS DECIDED THAT IT WOULD BE BETTER FOR FIRST
BOSTON NOT TO CHARGE A FEE FOR ITS SERVICES.  THE EXECUTIVE COMMITTEE
OF FIRST BOSTON TENTATIVELY DECIDED NOT TO ACCEPT A FEE ON JULY 1,
1954, AND THAT POSITION WAS FORMALLY ADOPTED ON OCTOBER 21, 1954.  "THE
DECISION NOT TO CHARGE A FEE WAS BASED ON WOODS' CONCLUSIONS THAT THE
FINANCING, WHICH FIRST BOSTON HAD BEEN RETAINED TO HANDLE, HAD FLOWED
DIRECTLY FROM THE CONVERSATION WHICH WOODS HAD HAD WITH DODGE IN MAY
1953, WHEN WOODS HAD OFFERED WENZELL'S SERVICES TO THE BUDGET BUREAU TO
ASSIST THE ADMINISTRATION IN CONNECTION WITH ITS POWER POLICY, AND THAT
FIRST BOSTON SHOULD NOT CHARGE A FEE FOR ASSISTANCE IN OBTAINING FUNDS
THAT WERE DESIGNED TO OBVIATE THE NECESSITY OF FEDERAL EXPENDITURES FOR
THE EXPANSION OF TVA." 

AS OF FEBRUARY 18, 1955, FIRST BOSTON HAD MADE NO FORMAL ANNOUNCEMENT
OF ITS DECISION NOT TO CHARGE A FEE; NOR HAD IT NOTIFIED THE GOVERNMENT
CONCERNING THE DECISION.  ON THAT DATE, SENATOR LISTER HILL OF ALABAMA
MADE A SPEECH CRITICIZING THE ACTIVITIES OF WENZELL AND FIRST BOSTON
AND EMPHASIZING WENZELL'S CONFLICT OF INTEREST.  (FN9)  ON THE NEXT
DAY, WOODS RELEASED A STATEMENT TO THE PRESS INDICATING THAT NEITHER
WENZELL NOR FIRST BOSTON HAD RECEIVED OR WOULD RECEIVE ANY FEE FOR THE
SERVICES RENDERED IN CONNECTION WITH THE PROJECT.  LEHMAN BROTHERS HAD
PREVIOUSLY INDICATED THAT IT THOUGHT SOME FEE SHOULD BE CHARGED, AND
WHEN WOODS RELEASED THE PRESS STATEMENT, REPRESENTATIVES OF LEHMAN
BROTHERS WERE UPSET BECAUSE THEY HAD NOT BEEN CONSULTED FIRST. 
ALTHOUGH DIXON HAD HEARD THAT FIRST BOSTON WAS CONTEMPLATING NOT
CHARGING A FEE, HE DID NOT UNDERSTAND THAT A FINAL DECISION ON THAT
SUBJECT HAD BEEN MADE.  EVEN AS LATE AS MAY 5, 1955, DIXON TOLD FIRST
BOSTON THAT HE ANTICIPATED QUESTIONS FROM THE SEC REGARDING FIRST
BOSTON'S FEE, AND HE REQUESTED THAT FIRST BOSTON GIVE HIM A CLEAR
STATEMENT ON THE MATTER.  IN RESPONSE TO THIS REQUEST, FIRST BOSTON
GAVE DIXON A LETTER INDICATING THAT IT WOULD TAKE NO FEE FOR THE
FINANCING SERVICES TO BE RENDERED IN CONNECTION WITH THE PROJECT. 
"DIXON WAS SURPRISED BY FIRST BOSTON'S DECISION NOT TO ACCEPT A FEE FOR
ITS SERVICES AS FINANCIAL AGENT.  THE DECISION WAS UNUSUAL AND WITHOUT
PRECEDENT IN THE HISTORY OF FIRST BOSTON."  FINALLY, ON MAY 11, 1955,
LEHMAN BROTHERS DECIDED THAT, IN VIEW OF FIRST BOSTON'S DECISION, IT
WOULD ALSO AGREE NOT TO CHARGE A FEE. 

DESPITE THE FACT THAT WENZELL HAD EARLIER PROMISED TO INFORM DODGE OF
ANY AGREEMENTS BETWEEN FIRST BOSTON AND THE SPONSORS AND TO SUBMIT
THOSE AGREEMENTS TO THE BUDGET BUREAU FOR APPROVAL, AND DESPITE THE
FACT THAT FIRST BOSTON'S COUNSEL HAD ADVISED WENZELL TO INFORM THE
BUDGET BUREAU OF ANY SUCH AGREEMENTS, NEITHER WENZELL NOR ANYONE
CONNECTED WITH FIRST BOSTON INFORMED THE BUDGET BUREAU OF FIRST
BOSTON'S RETENTION BY THE SPONSORS.  THE BUREAU OF THE BUDGET DID NOT
LEARN OF FIRST BOSTON'S RETENTION UNTIL FEBRUARY 18, 1955.  THE AEC WAS
INFORMED ON JULY 7, 1954, THAT FIRST BOSTON AND LEHMAN BROTHERS WERE
ACTING AS FINANCIAL AGENTS FOR THE SPONSORS.  HOWEVER, "THERE IS NO
EVIDENCE THAT ANY REPRESENTATIVE OF AEC HAD KNOWLEDGE UP TO  ...
DECEMBER 1954 THAT WENZELL, WHILE SERVING AS A CONSULTANT TO THE BUDGET
BUREAU, HAD BEEN MEETING WITH AND SUPPLYING INFORMATION TO THE SPONSORS
REGARDING THE PROJECT." 

                                       II. 

AS IS APPARENT FROM A RECITATION OF THE FACTS, THIS CASE TOUCHES UPON
NUMEROUS MATTERS WITH WHICH WE ARE NOT CONCERNED.  THEREFORE, AT THE
OUTSET, WE THINK IT IS IMPORTANT NOT ONLY TO DELINEATE THE ISSUES UPON
WHICH OUR DECISION TURNS, BUT ALSO TO SPECIFY THOSE COLLATERAL ISSUES
WHICH ARE NOT PERTINENT TO OUR DECISION.  AS ALREADY INDICATED, WE ARE
INTERESTED ONLY IN WHETHER WENZELL'S EXECUTIVE POSITION WITH FIRST
BOSTON AND HIS SIMULTANEOUS ACTIVITIES ON BEHALF OF THE GOVERNMENT
CONSTITUTED AN ILLEGAL CONFLICT OF INTEREST; AND IF SO, WHETHER THE
CONFLICT OF INTEREST RENDERED THE CONTRACT UNENFORCEABLE.  IN REACHING
OUR DECISION ON THESE QUESTIONS, WE DO NOT CONSIDER AND HAVE NO
INTEREST IN THE FOLLOWING MATTERS: 

(1)  THE POLICY OF THE ADMINISTRATION CONCERNING THE RELATIVE MERITS
OF PUBLIC VERSUS PRIVATE POWER DEVELOPMENT: 

(2)  THE DESIRE OF THE RESPONDENT AND WENZELL AND HIS CORPORATE
ASSOCIATES TO ADVANCE THE POLICIES OF THE ADMINISTRATION: 

(3)  THE EMPLOYMENT OF SO-CALLED "DOLLAR-A-YEAR" MEN, SUCH AS
WENZELL, TO ADVISE THE GOVERNMENT IN MATTERS OF BUSINESS, INDUSTRY,
LABOR, AND THE SCIENCES; AND: 

(4) THE REASONABLENESS OR UNREASONABLENESS OF THE CONTRACT ULTIMATELY
NEGOTIATED, THAT NOT BEING AN ISSUE IN THE CASE, AND THERE BEING NO
BURDEN ON THE GOVERNMENT TO ESTABLISH FINANCIAL LOSS. 

FIRST.  IN DETERMINING WHETHER WENZELL'S ACTIVITIES FALL WITHIN THE
PROSCRIPTION OF SECTION 434, WE THINK IT IS APPROPRIATE TO FOCUS OUR
ATTENTION INITIALLY ON THE ORIGIN, PURPOSE, AND SCOPE OF THE STATUTE. 
WERE DESIGNED TO PROHIBIT GOVERNMENT OFFICIALS FROM ENGAGING IN CONDUCT
THAT MIGHT BE INIMICAL TO THE BEST INTERESTS OF THE GENERAL PUBLIC. 
(FN10)  IT IS A RESTATEMENT OF A STATUTE ADOPTED IN 1863 FOLLOWING THE
DISCLOSURE BY A HOUSE COMMITTEE OF SCANDALOUS CORRUPTION ON THE PART OF
GOVERNMENT AGENTS WHOSE JOB IT WAS TO PROCURE WAR MATERIALS FOR THE
UNION ARMIES DURING THE CIVIL WAR.  (FN11)  THE STATUTE HAS SINCE BEEN
RE-ENACTED ON SEVERAL OCCASIONS, (FN12) AND THE BROAD PROHIBITION
CONTAINED IN THE ORIGINAL STATUTE HAS BEEN RETAINED THROUGHOUT THE
YEARS. 

THE OBVIOUS PURPOSE OF THE STATUTE IS TO INSURE HONESTY IN THE
GOVERNMENT'S BUSINESS DEALINGS BY PREVENTING FEDERAL AGENTS WHO HAVE
INTERESTS ADVERSE TO THOSE OF THE GOVERNMENT FROM ADVANCING THEIR OWN
INTERESTS AT THE EXPENSE OF THE PUBLIC WELFARE.  UNITED STATES V.
CHEMICAL FOUNDATION, 272 U.S. 1, 18.  THE MORAL PRINCIPLE UPON WHICH
THE STATUTE IS BASED HAS ITS FOUNDATION IN THE BIBLICAL ADMONITION THAT
NO MAN MAY SERVE TWO MASTERS, MATT.  6:24, A MAXIM WHICH IS ESPECIALLY
PERTINENT IF ONE OF THE MASTERS HAPPENS TO BE ECONOMIC SELF-INTEREST. 
CONSONANT WITH THIS SALUTARY MORAL PURPOSE, CONGRESS HAS DRAFTED A
STATUTE WHICH SPEAKS IN VERY COMPREHENSIVE TERMS.  SECTION 434 IS NOT
LIMITED IN ITS APPLICATION TO THOSE IN THE HIGHEST ECHELONS OF
GOVERNMENT SERVICE, OR TO THOSE GOVERNMENT AGENTS WHO HAVE ONLY A
DIRECT FINANCIAL INTEREST IN THE BUSINESS ENTITIES WITH WHICH THEY
NEGOTIATE ON BEHALF OF THE GOVERNMENT, OR TO A NARROW CLASS OF BUSINESS
TRANSACTIONS.  NOR IS THE STATUTE'S SCOPE RESTRICTED BY NUMEROUS
PROVISOS AND EXCEPTIONS, AS IS TRUE OF MANY PENAL STATUTES.  (FN13)
RATHER, IT APPLIES, WITHOUT EXCEPTION, TO "WHOEVER" IS "DIRECTLY OR
INDIRECTLY INTERESTED IN THE PECUNIARY PROFITS OR CONTRACTS" OF A
BUSINESS ENTITY WITH WHICH HE TRANSACTS ANY BUSINESS "AS AN OFFICER OR
AGENT OF THE UNITED STATES." 

IT IS ALSO SIGNIFICANT, WE THINK, THAT THE STATUTE DOES NOT SPECIFY
AS ELEMENTS OF THE CRIME THAT THERE BE ACTUAL CORRUPTION OR THAT THERE
BE ANY ACTUAL LOSS SUFFERED BY THE GOVERNMENT AS A RESULT OF THE
DEFENDANT'S CONFLICT OF INTEREST.  THIS OMISSION INDICATES THAT THE
STATUTE ESTABLISHES AN OBJECTIVE STANDARD OF CONDUCT, AND THAT WHENEVER
A GOVERNMENT AGENT FAILS TO ACT IN ACCORDANCE WITH THAT STANDARD, HE IS
GUILTY OF VIOLATING THE STATUTE, REGARDLESS OF WHETHER THERE IS
POSITIVE CORRUPTION.  THE STATUTE IS THUS DIRECTED NOT ONLY AT
DISHONOR, BUT ALSO AT CONDUCT THAT TEMPTS DISHONOR.  THIS BROAD
PROSCRIPTION EMBODIES A RECOGNITION OF THE FACT THAT AN IMPAIRMENT OF
IMPARTIAL JUDGMENT CAN OCCUR IN EVEN THE MOST WELL-MEANING MEN WHEN
THEIR PERSONAL ECONOMIC INTERESTS ARE AFFECTED BY THE BUSINESS THEY
TRANSACT ON BEHALF OF THE GOVERNMENT.  TO THIS EXTENT, THEREFORE, THE
STATUTE IS MORE CONCERNED WITH WHAT MIGHT HAVE HAPPENED IN A GIVEN
SITUATION THAN WITH WHAT ACTUALLY HAPPENED.  IT ATTEMPTS TO PREVENT
HONEST GOVERNMENT AGENTS FROM SUCCUMBING TO TEMPTATION BY MAKING IT
ILLEGAL FOR THEM TO ENTER INTO RELATIONSHIPS WHICH ARE FRAUGHT WITH
TEMPTATION.  (FN14)  RANKIN V. UNITED STATES, 98 CT. CL. 357. 

WHILE RECOGNIZING THAT THE STATUTE SPEAKS IN BROAD, ABSOLUTE TERMS,
THE RESPONDENT ARGUES THAT TO INTERPRET THE STATUTE AS LAYING DOWN A
PROPHYLACTIC RULE WHICH IGNORES THE ACTUAL CONSEQUENCES OF PROSCRIBED
ACTION WOULD BE A VIOLATION OF THE TIME-HONORED CANON THAT PENAL
STATUTES ARE TO BE NARROWLY CONSTRUED.  BUT EVEN PENAL STATUTES MUST BE
"GIVEN THEIR FAIR MEANING IN ACCORD WITH THE EVIDENT INTENT OF
CONGRESS."  UNITED STATES V. RAYNOR, 302 U.S. 540, 552; RAINWATER V.
UNITED STATES, 356 U.S. 590, 593; UNITED STATES V. CORBETT, 215 U.S.
233, 242.  IN VIEW OF THE STATUTE'S EVIDENT PURPOSE AND ITS
COMPREHENSIVE LANGUAGE, WE ARE CONVINCED THAT CONGRESS INTENDED TO
ESTABLISH A RIGID RULE OF CONDUCT WHICH, AS WE SHALL NOW DEMONSTRATE BY
ANALYZING EACH OF THE ELEMENTS OF THE STATUTORY PROHIBITION, WAS
VIOLATED BY WENZELL. 

THE FIRST QUESTION IS WHETHER WENZELL ACTED AS AN "OFFICER OR AGENT
OF THE UNITED STATES FOR THE TRANSACTION OF BUSINESS."  JUDGED BY ANY
REASONABLE TEST, THE FACTS WHICH WE HAVE RECITED ABOVE DEMONSTRATE THAT
HE WAS THE GOVERNMENT'S KEY REPRESENTATIVE IN THE CRUCIAL PRELIMINARY
NEGOTIATIONS BETWEEN THE GOVERNMENT AND THE SPONSORS.  BECAUSE WENZELL
WAS A BUSINESS ACQUAINTANCE OF BOTH DIXON AND YATES, HUGHES VERY EARLY
IN THE NEGOTIATIONS ASSIGNED WENZELL THE TASK OF USING "SUCH INFLUENCE
AS HE HAD WITH THE PRIVATE UTILITY PEOPLE TO IMPRESS UPON THEM THE NEED
FOR PROMPT ACTION."  IN THE WEEKS THAT FOLLOWED, WENZELL KEPT IN
CONSTANT TOUCH WITH THE SPONSORS, AND FREQUENTLY WAS THE ONLY
REPRESENTATIVE OF THE GOVERNMENT AT IMPORTANT MEETINGS CONCERNING THE
PROJECT.  HE PARTICIPATED IN INTRAGOVERNMENTAL ANALYSES; HE SUPPLIED
THE SPONSORS WITH VITAL INFORMATION ON THE COST OF MONEY, AND THAT
INFORMATION WAS SUBSEQUENTLY MADE THE BASIS FOR THE SPONSORS'
PROPOSALS; HE URGED THE SPONSORS TO REFINE THEIR FIGURES AFTER THE
INITIAL PROPOSAL WAS REJECTED; AND HE WAS USED BY THE BUDGET BUREAU NOT
ONLY AS A CONSULTANT ON THE COST OF MONEY, BUT ALSO AS AN ADVISOR ON
THE TOTAL COST OF THE PROJECT.  IN FACT, WENZELL'S ACTIVITIES WERE SO
EXTENSIVE THAT THE COURT OF CLAIMS WAS LED TO THE CONCLUSION THAT
"HUGHES REALLY USED WENZELL AS AN EXPEDITER  ...  .  HE (WENZELL), NO
DOUBT, WAS ABLE TO GIVE TO HUGHES A BETTER OVERALL VIEW OF EVENTS THAN
ANY OTHER PERSON, AND DID, WE SHOULD SUPPOSE, EXPEDITE THE FORMULATION
OF THE PROPOSAL WHICH FORMED THE BASIS FOR THE LATER NEGOTIATION OF
DETAILS AND EXACT FIGURES."  175 F. SUPP., AT 514.  CONSIDERING THAT
WENZELL WAS THE GOVERNMENT'S MAJOR REPRESENTATIVE IN THE FORMATIVE
NEGOTIATIONS OF THIS MULTIMILLION DOLLAR CONTRACT, WE THINK IT WOULD BE
UNREALISTIC TO SAY THAT HE WAS NOT THE TYPE OF "AGENT" TO WHOM SECTION
434 WAS INTENDED TO APPLY. 

THE RESPONDENT SUGGESTS THAT WENZELL WAS NOT AN "AGENT OF THE UNITED
STATES" BECAUSE "HE TOOK NO OATH OF OFFICE; HE HAD NO TENURE; HE SERVED
WITHOUT SALARY, EXCEPT FOR $10 PER DAY IN LIEU OF SUBSISTENCE; HIS
DUTIES WERE MERELY CONSULTATIVE, WERE OCCASIONAL AND TEMPORARY AND WERE
NOT PRESCRIBED BY STATUTE; AND HE WAS PERMITTED TO CONTINUE IN HIS
POSITION AS ONE OF THE VICE PRESIDENTS AND DIRECTORS OF FIRST BOSTON
AND TO DRAW HIS SALARY FROM THAT COMPANY."  BUT SURELY, THESE FACTORS
CANNOT BE DETERMINATIVE OF THE QUESTION.  A KEY REPRESENTATIVE OF THE
GOVERNMENT WHO HAS TAKEN NO OATH OF OFFICE, WHO HAS NO TENURE, AND WHO
RECEIVES NO SALARY IS JUST AS LIKELY TO SUBORDINATE THE GOVERNMENT'S
INTEREST TO HIS OWN AS IS A REGULAR, FULL-TIME, COMPENSATED CIVIL
SERVANT.  THIS IS UNDOUBTEDLY WHY THE STATUTE APPLIES NOT ONLY TO THOSE
WHO ARE "EMPLOYED" BY THE GOVERNMENT, BUT ALSO TO "WHOEVER  ...  ACTS"
AS AN AGENT FOR THE GOVERNMENT.  (FN15)  IN ADDITION, WE THINK THAT THE
RESPONDENT IGNORES THE RELEVANT FACTS WHEN IT CHARACTERIZES WENZELL'S
ACTIVITIES AS MERELY "OCCASIONAL AND TEMPORARY."  DURING HIS
ASSOCIATION WITH THE BUDGET BUREAU, WENZELL, AS WE HAVE INDICATED, WAS
AS ACTIVE A PARTICIPANT IN THE NEGOTIATIONS AS ANYONE CONNECTED WITH
THE PROJECT.  WE DO NOT THINK IT WOULD BE ERRONEOUS TO CHARACTERIZE HIM
AS THE REAL ARCHITECT OF THE FINAL CONTRACT.  FINALLY, RESPONDENT'S
RELIANCE UPON THE FACT THAT WENZELL RETAINED HIS POSITION WITH FIRST
BOSTON IS MISPLACED.  THE KEY ROLE WHICH WENZELL PLAYED IN REPRESENTING
THE GOVERNMENT WAS IN NO WAY DIMINISHED BY THE FACT THAT HE RETAINED
HIS ASSOCIATION WITH FIRST BOSTON DURING HIS PERIOD OF CONSULTANCY.  IT
WAS WENZELL'S POSITION WITH FIRST BOSTON WHICH CONSTITUTED THE BASIS
FOR HIS CONFLICT OF INTEREST, AND IT WOULD TRULY BE ANOMALOUS IF WE
WERE TO ADOPT THE RESPONDENT'S SUGGESTION THAT THE VERY FACT WHICH
CREATES THE CONFLICT OF INTEREST ALSO OPERATES TO REMOVE WENZELL FROM
THE COVERAGE OF THE STATUTE.  THIS WOULD IGNORE THE PURPOSE OF THE
STATUTE. 

THE RESPONDENT ALSO CONTENDS THAT EVEN IF WENZELL QUALIFIED AS AN
"AGENT" OF THE GOVERNMENT, HIS ACTIVITIES DID NOT CONSTITUTE "THE
TRANSACTION OF BUSINESS."  WE DISAGREE.  ALTHOUGH IT IS TRUE THAT
WENZELL HAD NO AUTHORITY TO SIGN A BINDING CONTRACT, AND THAT HE DID
NOT PARTICIPATE IN THE TERMINAL NEGOTIATIONS WHICH LED TO THE FINAL
AGREEMENT, NEVERTHELESS, THOSE FACTS DO NOT SUPPORT THE RESPONDENT'S
CONCLUSION THAT THE NEGOTIATIONS IN WHICH WENZELL PARTICIPATED WERE TOO
REMOTE AND TENUOUS TO BE CONSIDERED "THE TRANSACTION OF BUSINESS."  FAR
FROM BEING TENUOUS, THE NEGOTIATIONS IN WHICH HE PARTICIPATED WERE THE
VERY FOUNDATION UPON WHICH THE FINAL CONTRACT WAS BASED.  AS THE
FINDINGS OF THE COURT OF CLAIMS DEMONSTRATE, THE PRELIMINARY
NEGOTIATIONS WITH WHICH WENZELL WAS CONCERNED DEALT PRIMARILY WITH THE
COST OF THE PROJECT, AND PARTICULARLY WITH THE "ALL-IMPORTANT MATTER OF
THE COST OF INTEREST ON MONEY THAT WOULD BE BORROWED TO FINANCE THE
CONSTRUCTION OF THE PLANT."  IF THE SPONSORS AND THE GOVERNMENT HAD NOT
AGREED ON THE COST OF CONSTRUCTION AND ON THE COST OF MONEY, NO
CONTRACT WOULD HAVE BEEN MADE, BECAUSE THE COST OF POWER SUPPLIED TO
THE AEC WAS TO HAVE BEEN BASED UPON BOTH OF THOSE FACTORS.  AS THE
COURT OF CLAIMS FOUND:  "IT WAS WELL KNOWN THAT THE COST OF MONEY
PLAYED AN IMPORTANT PART IN THE COST OF THE ENTIRE PROJECT AND IN THE
PRICE AT WHICH THE ENERGY COULD BE PRODUCED AND SOLD  ...  . IT WAS
ALWAYS CONTEMPLATED THAT THE COST OF MONEY WOULD BE REFLECTED IN THE
CAPACITY CHARGE TO THE GOVERNMENT, AND  ...  THE COST OF MONEY IS THE
LARGEST COMPONENT OF COST INCLUDED IN THE CAPACITY CHARGE."  THE
IMPORTANCE OF THE NEGOTIATIONS BETWEEN WENZELL AND THE SPONSORS IS
EMPHASIZED BY THE FACT THAT BOTH THE FIRST AND SECOND PROPOSALS WERE
CONDITIONED UPON THE SPONSORS' BEING ABLE TO BORROW MONEY AT THE
INTEREST RATE SPECIFIED BY WENZELL AND FIRST BOSTON.  ALTHOUGH WENZELL
DID NOT PARTICIPATE IN THE ULTIMATE NEGOTIATIONS, THOSE NEGOTIATIONS
CANNOT BE DIVORCED FROM THE EVENTS WHICH LED UP TO THE SUBMISSION OF
THE SECOND PROPOSAL.  THE FINAL CONTRACT WAS NOT NEGOTIATED IN A
VACUUM.  THE SECOND PROPOSAL, UPON WHICH WENZELL HAD EXPENDED SO MUCH
TIME AND ENERGY, CONSTITUTED BOTH THE FRAMEWORK AND THE GUIDELINES OF
THE FINAL CONTRACT.  AND ALTHOUGH "THERE WERE NUMEROUS CHANGES IN AND
ADDITIONS TO THE TERMS SET FORTH IN THE PROPOSAL," THE COURT OF CLAIMS
SPECIFICALLY FOUND THAT "IN A GENERAL WAY, THE CONTRACT WAS WITHIN THE
TERMS OF THE PROPOSAL." 

WE THEREFORE THINK THAT THE RESPONDENT UNREALISTICALLY ASSESSES THE
FACTS WHEN IT CHARACTERIZES THE NEGOTIATIONS WHICH LED TO THE CONTRACT
AS A SERIES OF DISCONNECTED TRANSACTIONS.  ON THE CONTRARY, THEY WERE A
CONTINUOUS COURSE OF DEALINGS WHICH WERE CLOSELY INTERRELATED AND
INTERCONNECTED.  WENZELL PLAYED A KEY ROLE IN THE EARLY STAGES OF THE
NEGOTIATIONS, AND IT WAS QUITE LIKELY THAT THE CONTRACT WOULD NEVER
HAVE COME INTO FRUITION HAD HE NOT PARTICIPATED ON BEHALF OF THE
GOVERNMENT.  THE COURT OF CLAIMS RECOGNIZED THE IMPORTANCE OF THE
PRELIMINARY NEGOTIATIONS AND OF WENZELL'S ACTIVITIES DURING THOSE
NEGOTIATIONS.  IT SAID THAT "WHILE THE CONTRACT ITSELF CONTAINED
NOTHING OF WENZELL'S WORK, THE FACT THAT IT WAS MADE AT ALL MAY HAVE
BEEN A RESULT OF HIS WORK."  175 F. SUPP., AT 514.  IF THE ACTIVITIES
OF A GOVERNMENT AGENT HAVE AS DECISIVE AN EFFECT UPON THE OUTCOME OF A
TRANSACTION AS WENZELL'S ACTIVITIES WERE SAID BY THE COURT OF CLAIMS TO
HAVE HAD IN THIS CASE, THEN A REFUSAL TO CHARACTERIZE THOSE ACTIVITIES
AS PART OF A BUSINESS TRANSACTION MERELY BECAUSE THEY OCCURRED AT AN
EARLY STAGE OF THE NEGOTIATIONS IS AT WAR WITH THE OBVIOUS PURPOSE OF
THE STATUTE.  TO LIMIT THE APPLICATION OF THE STATUTE TO GOVERNMENT
AGENTS WHO PARTICIPATE ONLY IN THE FINAL FORMATION OF A CONTRACT WOULD
PERMIT THOSE WHO HAVE A CONFLICT OF INTEREST TO ENGAGE IN THE
PRELIMINARY, BUT OFTEN CRUCIAL STAGES OF THE TRANSACTION, AND THEN TO
INSULATE THEMSELVES FROM PROSECUTION UNDER SECTION 434 BY WITHDRAWING
FROM THE NEGOTIATIONS AT THE FINAL, AND OFTEN PERFUNCTORY STAGE OF THE
PROCEEDINGS.  CONGRESS COULD NOT POSSIBLY HAVE INTENDED SUCH AN OBVIOUS
EVASION OF THE STATUTE. 

THE SECOND QUESTION WHICH WE MUST CONSIDER IN DETERMINING WHETHER
WENZELL'S ACTIVITIES FELL WITHIN THE SCOPE OF THE STATUTE IS WHETHER HE
WAS "DIRECTLY OR INDIRECTLY INTERESTED IN THE PECUNIARY PROFITS OR
CONTRACTS" OF THE SPONSORS.  WE THINK THAT THE FINDINGS OF THE LOWER
COURT DEMONSTRATE THAT, AT THE VERY LEAST, WENZELL HAD AN INDIRECT
INTEREST IN THE CONTRACT WHICH THE SPONSORS WERE ATTEMPTING TO OBTAIN. 
THAT INTEREST MAY BE DESCRIBED AS FOLLOWS:  WENZELL WAS AN OFFICER AND
EXECUTIVE OF FIRST BOSTON; HE NOT ONLY SHARED IN THE PROFITS WHICH
FIRST BOSTON MADE DURING THE YEAR, BUT HE ALSO RECEIVED A BONUS FOR ANY
BUSINESS WHICH HE BROUGHT TO THE FIRM; IF A CONTRACT BETWEEN THE
GOVERNMENT AND THE SPONSORS WAS ULTIMATELY AGREED UPON, THERE WAS A
SUBSTANTIAL PROBABILITY THAT, BECAUSE OF ITS PRIOR EXPERIENCE IN THE
AREA OF PRIVATE POWER FINANCING, FIRST BOSTON WOULD BE HIRED TO SECURE
THE FINANCING FOR THE PROPOSED MEMPHIS PROJECT; IF FIRST BOSTON DID
RECEIVE THE CONTRACT, IT MIGHT NOT ONLY PROFIT DIRECTLY FROM THAT
CONTRACT, BUT IT WOULD ALSO ACHIEVE GREAT PRESTIGE AND WOULD THEREBY BE
LIKELY TO RECEIVE OTHER BUSINESS OF THE SAME KIND IN THE FUTURE;
THEREFORE, WENZELL, AS AN OFFICER AND PROFIT-SHARER OF FIRST BOSTON,
COULD EXPECT TO BENEFIT FROM ANY AGREEMENT THAT MIGHT BE MADE BETWEEN
THE GOVERNMENT AND THE SPONSORS. 

THE RESPONDENT URGES THAT WENZELL HAD NO INTEREST BECAUSE FIRST
BOSTON HAD NO MORE THAN A MERE HOPE THAT IT MIGHT RECEIVE THE FINANCING
WORK WERE THE NEGOTIATIONS IN WHICH WENZELL PARTICIPATED TO CULMINATE
IN A CONTRACT.  HOWEVER, THE FINDINGS OF FACT AND THE CONCLUSIONS OF
THE COURT OF CLAIMS BELIE THE RESPONDENT'S ASSERTION.  FIRST BOSTON HAD
ARRANGED THE FINANCING ON THE OVEC PROJECT AND HAD ACQUIRED A
REPUTATION IN THE AREA OF PRIVATE POWER FINANCING.  WENZELL HAD ALSO
ACQUIRED A CERTAIN EXPERTISE IN THIS AREA BY VIRTUE OF HIS PREVIOUS
WORK FOR THE BUDGET BUREAU IN PREPARING THE TVA ANALYSIS.  IT WAS
THEREFORE PROBABLE THAT FIRST BOSTON'S SERVICES WOULD AGAIN BE UTILIZED
SHOULD THE SPONSORS OBTAIN A CONTRACT TO CONSTRUCT A PROJECT SIMILAR TO
OVEC.  THAT THIS EXPECTATION WAS NOT BASELESS IS DEMONSTRATED BY THE
FACT THAT AS EARLY AS FEBRUARY 20, 1954, DIXON'S COUNSEL EXPRESSED
APPREHENSION ABOUT WENZELL'S DUALITY SINCE IT SEEMED LIKELY THAT FIRST
BOSTON WOULD RECEIVE THE FINANCING CONTRACT.  EVEN WENZELL MUST HAVE
THOUGHT VERY EARLY IN THE NEGOTIATIONS THAT FIRST BOSTON WOULD PROBABLY
BE RETAINED TO DO THE FINANCING, FOR ON FEBRUARY 23, 1954, HE TOLD
HUGHES THAT SHOULD FIRST BOSTON BE RETAINED, HE MIGHT BE CRITICIZED FOR
HAVING "IMPROPERLY USED HIS POSITION IN THE BUREAU TO OBTAIN BUSINESS
FOR FIRST BOSTON."  WENZELL'S APPREHENSION WAS CONFIRMED BY FIRST
BOSTON'S COUNSEL, WHO ADVISED WENZELL TO RESIGN FROM THE BUREAU OF THE
BUDGET "FORTHWITH AND IN WRITING."  THIS ADVICE WAS UNDOUBTEDLY
PREMISED ON THE REALIZATION THAT FIRST BOSTON STOOD A GOOD CHANCE OF
RECEIVING THE FINANCING CONTRACT.  THE COURT OF CLAIMS RECOGNIZED THAT
FROM THE OUTSET THERE WAS A "SUBSTANTIAL POSSIBILITY" THAT FIRST BOSTON
WOULD BE RETAINED.  IT SAID: 

"THERE WAS, OF COURSE, A SUBSTANTIAL POSSIBILITY THAT IF THE
ADMINISTRATION'S HOPE THAT PRIVATE CAPITAL WOULD BUILD THE NECESSARY
PLANT SHOULD BE REALIZED, FIRST BOSTON, AS ONE OF THE LARGEST AND MOST
EXPERIENCED FIRMS ENGAGED IN ARRANGING THE FINANCING OF SUCH
ENTERPRISES, MIGHT BE EMPLOYED BY THE COMPANY WHICH GOT THE CONTRACT." 
175 F. SUPP., AT 514. 

     *         *         *         *         * 

"HE (WENZELL) HAD AN INTEREST IN FIRST BOSTON WHICH COMPANY, BY THE
LOGIC OF CIRCUMSTANCES, MIGHT BE OFFERED THE WORK OF ARRANGING THE
FINANCING OF THE PROJECT WHEN AND IF A CONTRACT FOR THE PROJECT SHOULD
BE MADE."  175 SUPP., AT 515. 

IT WAS THE "LOGIC OF CIRCUMSTANCES" REFERRED TO BY THE COURT OF
CLAIMS THAT PLACED WENZELL IN THE AMBIVALENT POSITION AT WHICH THE
STATUTE IS AIMED.  WENZELL, AS AN AGENT OF THE GOVERNMENT, WAS
ENTRUSTED WITH THE RESPONSIBILITY OF REPRESENTING THE GOVERNMENT'S
INTEREST IN THE PRELIMINARY STAGES OF A VERY IMPORTANT CONTRACT
NEGOTIATION.  HOWEVER, BECAUSE THE SPONSORS WERE IN A POSITION TO
AFFECT THE FORTUNES OF HIMSELF AND HIS FIRM, HE WAS, TO SAY THE LEAST,
SUBCONSCIOUSLY TEMPTED TO INGRATIATE HIMSELF WITH THE SPONSORS AND TO
ACCEDE TO THEIR DEMANDS, EVEN THOUGH SUCH CONCESSIONS MIGHT HAVE BEEN
ADVERSE TO THE BEST INTERESTS OF THE GOVERNMENT.  BY THUS PLACING
HIMSELF IN THIS AMBIGUOUS SITUATION, WENZELL FAILED TO HONOR THE
OBJECTIVE STANDARD OF CONDUCT WHICH THE STATUTE PRESCRIBES. 

THE RESPONDENT SUGGESTS THAT WENZELL WAS NEVER REALLY SUBJECT TO ANY
TEMPTATIONS BECAUSE HE WAS NOT IN A POSITION WHEREBY HE COULD HAVE
SACRIFICED ANY OF THE GOVERNMENT'S INTERESTS.  ONCE AGAIN, HOWEVER, THE
RESPONDENT TAKES AN UNREALISTIC VIEW OF THE FACTS.  WE HAVE ALREADY
DESCRIBED HOW IMPORTANT A ROLE WENZELL PLAYED IN THIS TRANSACTION.  IN
FULFILLING THAT ROLE, WENZELL, ON NUMEROUS OCCASIONS, COULD HAVE TAKEN
ACTION THAT WOULD HAVE FAVORED THE SPONSORS TO THE DETRIMENT OF THE
GOVERNMENT.  FOR EXAMPLE, HE COULD HAVE CONCURRED TOO EASILY WITH THE
SPONSORS AS TO SPECIFIC ITEMS OF THE PROPOSALS OR OF THE COST
ESTIMATES; OR HE COULD HAVE FAILED TO PRESS THE GOVERNMENT'S POSITION
ON ITEMS OF COST VIGOROUSLY ENOUGH; OR HE COULD HAVE SUGGESTED
ACCEPTANCE BY THE GOVERNMENT OF A PROPOSAL WHICH, FOR ONE REASON OR
ANOTHER, SHOULD NOT HAVE BEEN APPROVED.  HOWEVER, WE NEED NOT DEAL
EXCLUSIVELY IN THE REALM OF CONJECTURE.  THE FINDINGS OF THE COURT OF
CLAIMS DISCLOSE NUMEROUS INSTANCES IN WHICH WENZELL SEEMED TO BE MORE
PREOCCUPIED WITH ADVANCING THE POSITION OF FIRST BOSTON OR THE SPONSORS
THAN WITH REPRESENTING THE BEST INTERESTS OF THE GOVERNMENT.  FOR
EXAMPLE, AFTER THE JOINT TVA-AEC ANALYSIS WAS MADE AVAILABLE, WENZELL
HELPED DRAFT A LETTER WHICH THE SPONSORS PLANNED TO SUBMIT TO THE
GOVERNMENT AS A REBUTTAL TO THE UNFAVORABLE CONCLUSIONS CONTAINED IN
THE ANALYSIS.  WE SHOULD THINK THAT ONE WHO REPRESENTED THE GOVERNMENT
WOULD BE MORE INTERESTED IN DEFENDING THE GOVERNMENT'S POSITION THAN IN
HELPING THE SPONSORS TO ATTACK IT.  ON ANOTHER OCCASION, WENZELL
PERFORMED A "PERSONAL FAVOR" FOR DIXON BY OBTAINING SOME INFORMATION ON
THE COST OF MONEY FROM HIS ASSOCIATES AT FIRST BOSTON.  AS IT LATER
TURNED OUT, THIS INFORMATION WAS TO CONSTITUTE THE FRAMEWORK AROUND
WHICH THE SPONSORS CONSTRUCTED THEIR PROPOSAL.  BY SUBMITTING THE
INFOMATION TO DIXON ON THE STATIONERY OF FIRST BOSTON, AND BY
SUBSEQUENTLY ARRANGING A MEETING BETWEEN THE SPONSORS AND SOME OFFICERS
OF FIRST BOSTON SO THAT THE INFORMATION COULD BE CONFIRMED, WENZELL WAS
ABLE CONSTANTLY TO KEEP FIRST BOSTON IN THE FOREFRONT OF THE PICTURE. 
(FN16)  IT IS THEREFORE NOT SURPRISING EITHER THAT THE SPONSORS DID
CHOOSE FIRST BOSTON TO CONDUCT THE MAJOR PART OF THE FINANCING, OR THAT
WOODS, THE CHAIRMAN OF FIRST BOSTON, SUBSEQUENTLY THOUGHT THAT "THE
FINANCING, WHICH FIRST BOSTON HAD BEEN RETAINED TO HANDLE, HAD FLOWED
DIRECLTY FROM THE CONVERSATION WHICH WOODS HAD HAD WITH DODGE IN MAY
1953, WHEN WOODS HAD OFFERED WENZELL'S SERVICES TO THE BUDGET BUREAU TO
ASSIST THE ADMINISTRATION IN CONNECTION WITH ITS POWER POLICY."  THAT
WENZELL'S PRIMARY ALLEGIANCE WAS TO FIRST BOSTON AND THAT HIS LOYALTY
TO THE GOVERNMENT WAS A FLEETING ONE IS SHOWN BY THE FACT THAT AFTER HE
HAD FINISHED HIS REPORT ON TVA IN 1953, HE SHOWED A COPY OF THAT
CONFIDENTIAL DOCUMENT TO WOODS, EVEN THOUGH HE HAD BEEN EXPRESSLY TOLD
BY DODGE TO SHOW THE REPORT TO NO ONE; AND BY THE FURTHER FACT THAT
WHEN FIRST BOSTON AGREED TO DO THE FINANCING, WENZELL DID NOT KEEP HIS
PROMISE TO DODGE TO INFORM THE BUDGET BUREAU OF ANY ARRANGEMENT BETWEEN
FIRST BOSTON AND THE SPONSORS AND TO SUBMIT THAT ARRANGEMENT TO THE
BUREAU FOR APPROVAL.  IT MAY BE TRUE, AS THE RESPONDENT ASSERTS, THAT
NONE OF WENZELL'S ACTIVITIES TO WHICH WE HAVE ALLUDED ADVERSELY
AFFECTED THE GOVERNMENT IN ANY WAY.  HOWEVER, THAT QUESTION IS
IRRELEVANT TO A CONSIDERATION OF WHETHER OR NOT WENZELL VIOLATED THE
STATUTE.  AS WE HAVE INDICATED, THE STATUTE IS PREVENTIVE IN NATURE; IT
LAYS DOWN AN ABSOLUTE STANDARD OF CONDUCT WHICH WENZELL VIOLATED BY
ENTERING INTO A RELATIONSHIP WHICH MADE IT DIFFICULT FOR HIM TO
REPRESENT THE GOVERNMENT WITH THE SINGLENESS OF PURPOSE REQUIRED BY THE
STATUTE.  (FN17) 

FINALLY, SOME MENTION MUST BE MADE OF CERTAIN FACTORS WHICH THE COURT
OF CLAIMS CITED IN REACHING THE CONCLUSION THAT WENZELL HAD NOT
VIOLATED THE STATUTE.  FIRST, BOTH THE COURT BELOW AND THE RESPONDENT
INTIMATE THAT WENZELL COULD NOT HAVE EXPECTED TO BENEFIT FROM THE
CONTRACT BECAUSE THERE WAS NO FORMAL CONTRACT OR UNDERSTANDING BETWEEN
FIRST BOSTON AND THE SPONSORS TO THE EFFECT THAT FIRST BOSTON WOULD BE
RETAINED SHOULD THE SPONSORS ENTER INTO AN AGREEMENT WITH THE
GOVERNMENT.  HOWEVER, WE DO NOT THINK THAT THE ABSENCE OF SUCH A FORMAL
AGREEMENT OR UNDERSTANDING IS DETERMINATIVE.  THE QUESTION IS NOT
WHETHER WENZELL WAS CERTAIN TO BENEFIT FROM THE CONTRACT, BUT WHETHER
THE LIKELIHOOD THAT HE MIGHT BENEFIT WAS SO GREAT THAT HE WOULD BE
SUBJECT TO THOSE TEMPTATIONS WHICH THE STATUTE SEEKS TO AVOID.  THAT
THERE WAS MORE THAN A MERE LIKELIHOOD IN THIS CASE HAS ALREADY BEEN
SHOWN.  SECOND, THE COURT OF CLAIMS STRESSED THE FACT THAT WENZELL'S
GOAL OF ADVANCING THE CAUSE OF PRIVATE POWER COINCIDED WITH THE
ADMINISTRATION'S GENERAL OBJECTIVE.  HOWEVER, THAT FACT CANNOT SERVE TO
EXEMPT WENZELL FROM THE COVERAGE OF THE STATUTE.  IN FACT, THE MORE
EVIDENCE AN AGENT GIVES OF AGREEMENT WITH THE POLICIES OF THE
ADMINISTRATION, THE MORE RESPONSIBILITY HE IS LIKELY TO BE GIVEN, AND
IN CASE OF A CONFLICT OF INTEREST, THE GREATER IS THE POSSIBLE INJURY
TO THE GOVERNMENT.  THIRD, THE COURT OF CLAIMS RELIED STRONGLY ON THE
FACT THAT WENZELL DID NOT THINK THAT HE WAS INVOLVED IN A CONFLICT-OF
INTEREST SITUATION.  HOW WENZELL COULD HAVE THOUGHT OTHERWISE FOLLOWING
THE ADMONITIONS OF BOTH DIXON'S COUNSEL AND FIRST BOSTON'S COUNSEL AND
HIS OWN STATEMENTS IN THAT REGARD IS DIFFICULT TO UNDERSTAND.  HOWEVER,
EVEN ASSUMING THAT WENZELL DID NOT THINK THERE WAS A CONFLICT, THAT
FACT IS IRRELEVANT.  AS WE HAVE SHOWN, THE STATUTE ESTABLISHES AN
OBJECTIVE, NOT A SUBJECTIVE, STANDARD, AND IT IS THEREFORE OF LITTLE
MOMENT WHETHER THE AGENT THOUGHT HE WAS VIOLATING THE STATUTE, IF THE
OBJECTIVE FACTS SHOW THAT THERE WAS A CONFLICT OF INTEREST.  FINALLY,
BOTH THE COURT OF CLAIMS AND THE RESPONDENT MAKE MUCH OF THE FACT THAT
WENZELL'S IMMEDIATE SUPERIORS IN THE BUREAU OF THE BUDGET KNEW OF HIS
ACTIVITIES AND OF HIS INTEREST IN FIRST BOSTON.  TRUE AS THIS FACT IS,
IT IS SIGNIFICANT, WE THINK, THAT NO ONE IN THE AEC, WHICH WAS THE
GOVERNMENTAL CONTRACTING AGENCY, AND WHICH HAD EXPRESSED RELUCTANCE
ABOUT THE CONTRACT THROUGHOUT THE NEGOTIATIONS, HAD KNOWLEDGE UNTIL
DECEMBER 1954 THAT "WENZELL, WHILE SERVING AS A CONSULTANT TO THE
BUDGET BUREAU, HAD BEEN MEETING WITH AND SUPPLYING INFORMATION TO THE
SPONSORS REGARDING THE PROJECT."  IN ANY EVENT, THE KNOWLEDGE OF
WENZELL'S SUPERIORS AND THEIR APPROVAL OF HIS ACTIVITIES DO NOT SUFFICE
TO EXEMPT WENZELL FROM THE COVERAGE OF THE STATUTE.  NEITHER SECTION
434 NOR ANY OTHER STATUTE EMPOWERED HIS SUPERIORS TO EXEMPT HIM FROM
THE STATUTE, AND WE ARE CONVINCED THAT IT WOULD BE CONTRARY TO THE
PURPOSE OF THE STATUTE FOR THIS COURT TO BESTOW SUCH A POWER UPON THOSE
WHOM CONGRESS HAS NOT SEEN FIT TO SO AUTHORIZE.  CONGRESS UNDOUBTEDLY
HAD A VERY SPECIFIC REASON FOR NOT CONFERRING SUCH A POWER UPON HIGH
LEVEL ADMINISTRATORS.  IT RECOGNIZED THAT AN AGENT'S SUPERIORS MAY NOT
APPRECIATE THE NATURE OF THE AGENT'S CONFLICT, OR THAT THE SUPERIORS
MIGHT, IN FACT, SHARE THE AGENT'S CONFLICT OF INTEREST.  THE
PROHIBITION WAS THEREFORE DESIGNED TO PROTECT THE UNITED STATES, AS A
GOVERNMENT, FROM THE MISTAKES, AS WELL AS THE CONNIVANCE, OF ITS OWN
OFFICERS AND AGENTS.  IT IS NOT SURPRISING THEREFORE THAT WE HAVE
CONSISTENTLY HELD THAT NO GOVERNMENT AGENT CAN PROPERLY CLAIM EXEMPTION
FROM A CONFLICT-OF-INTEREST STATUTE SIMPLY BECAUSE HIS SUPERIORS DID
NOT DISCERN THE CONFLICT.  EWERT V. BLUEJACKET, 259 U.S. 129; PROSSER
V. FINN, 208 U.S. 67. 

THE THRUST OF THE ARGUMENTS MADE BY THE RESPONDENT AND ADOPTED BY THE
COURT OF CLAIMS IS THAT IT WOULD BE UNJUST TO APPLY THE STATUTE TO ONE
WHO ACTED AS WENZELL DID IN THIS CASE.  WE CANNOT AGREE.   THE STATUTE
IS DIRECTED AT AN EVIL WHICH ENDANGERS THE VERY FABRIC OF A DEMOCRATIC
SOCIETY, FOR A DEMOCRACY IS EFFECTIVE ONLY IF THE PEOPLE HAVE FAITH IN
THOSE WHO GOVERN, AND THAT FAITH IS BOUND TO BE SHATTERED WHEN HIGH
OFFICIALS AND THEIR APPOINTEES ENGAGE IN ACTIVITIES WHICH AROUSE
SUSPICIONS OF MALFEASANCE AND CORRUPTION.  THE SERIOUSNESS OF THIS EVIL
QUITE NATURALLY LED CONGRESS TO ADOPT A STATUTE WHOSE BREADTH WOULD BE
SUFFICIENT TO COPE WITH THE EVIL.  AGAINST THIS BACKGROUND, IT SEEMS
CLEAR TO US THAT WENZELL'S DUALITY, WHICH AROUSED THE FEARS OF HIS OWN
COUNSEL AND THE SUSPICIONS OF MANY OBSERVERS, WAS THE VERY TYPE OF
CONFLICT AT WHICH THE STATUTE IS AIMED.  THAT WENZELL WAS AWARE OF HIS
DUAL POSITION EARLY IN THE NEGOTIATIONS; THAT HE WAS ADVISED BY HIS OWN
COUNSEL TO RESIGN "FORTHWITH AND IN WRITING"; THAT HE DID NOT TERMINATE
HIS ASSOCIATION WITH THE BUDGET BUREAU UNTIL THE FINAL PROPOSAL HAD
BEEN SUBMITTED; THAT HE NEVER FORMALLY RESIGNED HIS POSITION WITH THE
BUREAU, AS HE HAD BEEN ADVISED TO DO; AND THAT HIS ACTIVITIES FALL
WITHIN THE LITERAL MEANING OF THE STATUTE HAVE ALL BEEN DEMONSTRATED. 
IN THE LIGHT OF THESE CIRCUMSTANCES, WE THINK THAT THE RESPONDENT'S
RELIANCE UPON THE SO-CALLED EQUITABLE CONSIDERATIONS IN WENZELL'S FAVOR
IS MISPLACED. 

BECAUSE OF THE RESPONDENT'S ASSERTION THAT AN APPLICATION OF THE
STATUTE TO WENZELL WILL MAKE IT IMPOSSIBLE IN THE FUTURE FOR THE
GOVERNMENT TO OBTAIN THE SERVICES OF PRIVATE CONSULTANTS ON A PART-TIME
BASIS, WE EMPHASIZE THAT OUR SPECIFIC HOLDING, ON THE FACTS BEFORE US,
IS THAT SECTION 434 FORBIDS A GOVERNMENT AGENT FROM ENGAGING IN
BUSINESS TRANSACTIONS ON BEHALF OF THE GOVERNMENT IF, BY VIRTUE OF HIS
PRIVATE INTERESTS, HE MAY BENEFIT FINANCIALLY FROM THE OUTCOME OF THOSE
TRANSACTIONS. 

SECOND.  HAVING DETERMINED THAT WENZELL'S ACTIVITIES CONSTITUTED A
VIOLATION OF SECTION 434, WE MUST NEXT CONSIDER WHETHER WENZELL'S
ILLEGAL CONDUCT RENDERS THE CONTRACT UNENFORCEABLE.  IT IS TRUE THAT
CONTRACTS WHICH ARE MADE IN VIOLATION OF THE STATUTORY PROHIBITION. 
HOWEVER, THAT FACT IS NOT DETERMINATIVE OF THE QUESTION, FOR A STATUTE
FREQUENTLY IMPLIES THAT A CONTRACT IS NOT TO BE ENFORCED WHEN IT ARISES
OUT OF CIRCUMSTANCES THAT WOULD LEAD ENFORCEMENT TO OFFEND THE
ESSENTIAL PURPOSE OF THE ENACTMENT.  E.G., MILLER V. AMMON, 145 U.S.
421; BANK OF THE UNITED STATES V. OWENS, 2 PET. 527; 6 WILLISTON,
CONTRACTS (REV. ED. 1938), SEC. 1763.  THEREFORE, THE INQUIRY MUST BE
WHETHER THE SANCTION OF NONENFORCEMENT IS CONSISTENT WITH AND ESSENTIAL
TO EFFECTUATING THE PUBLIC POLICY EMBODIED IN SECTION 434. 

AS WE HAVE INDICATED, THE PRIMARY PURPOSE OF THE STATUTE IS TO
PROTECT THE PUBLIC FROM THE CORRUPTING INFLUENCES THAT MIGHT BE BROUGHT
TO BEAR UPON GOVERNMENT AGENTS WHO ARE FINANCIALLY INTERESTED IN THE
BUSINESS TRANSACTIONS WHICH THEY ARE CONDUCTING ON BEHALF OF THE
GOVERNMENT.  THIS PROTECTION CAN BE FULLY ACCORDED ONLY IF CONTRACTS
WHICH ARE TAINTED BY A CONFLICT OF INTEREST ON THE PART OF A GOVERNMENT
AGENT MAY BE DISAFFIRMED BY THE GOVERNMENT.  IF THE GOVERNMENT'S SOLE
REMEDY IN A CASE SUCH AS THAT NOW BEFORE US IS MERELY A CRIMINAL
PROSECUTION AGAINST ITS AGENT, AS THE RESPONDENT SUGGESTS, THEN THE
PUBLIC WILL BE FORCED TO BEAR THE BURDEN OF COMPLYING WITH THE VERY
SORT OF CONTRACT WHICH THE STATUTE SOUGHT TO PREVENT.  WERE WE TO
DECREE THE ENFORCEMENT OF SUCH A CONTRACT, WE WOULD BE AFFIRMATIVELY
SANCTIONING THE TYPE OF INFECTED BARGAIN WHICH THE STATUTE OUTLAWS AND
WE WOULD BE DEPRIVING THE PUBLIC OF THE PROTECTION WHICH CONGRESS HAS
CONFERRED. 

NONENFORCEMENT OF CONTRACTS MADE IN VIOLATION OF SECTION 434 AND ITS
PREDECESSOR STATUTES IS NOT A NOVEL REMEDY.  ON AT LEAST TWO OCCASIONS
THE COURT OF CLAIMS HAS HELD THAT THE GOVERNMENT COULD DISAFFIRM
CONTRACTUAL OBLIGATIONS ARISING FROM TRANSACTIONS WHICH WERE PROHIBITED
BY THE STATUTORY ANTECEDENT TO SECTION 434.  RANKIN V. UNITED STATES,
SUPRA; CURVED ELECTROTYPE PLATE CO. V. UNITED STATES, 50 CT. CL. 258. 
SEE ALSO MICHIGAN STEEL BOX CO. V. UNITED STATES, 49 CT. CL. 421.  IN
REACHING ITS DECISION IN THIS CASE, THE COURT OF CLAIMS APPEARS TO HAVE
ABANDONED THESE PRECEDENTS, AND INSTEAD PLACED GREAT RELIANCE UPON OUR
DECISION IN MUSCHANY V. UNITED STATES, 324 U.S. 49.  HOWEVER, WE FIND
NO DIFFICULTY IN DISTINGUISHING THAT CASE FROM THE INSTANT SITUATION. 
THE MUSCHANY CASE INVOLVED A GOVERNMENT LAND AGENT WHOSE ACTIVITIES NOT
ONLY WERE AUTHORIZED BY THE NATIONAL DEFENSE ACT OF 1940, 54 STAT. 712,
BUT ALSO WERE FOUND BY THE COURT TO BE OUTSIDE THE PURVIEW OF THE
CONFLICT-OF-INTEREST STATUTES.  THEREFORE, UNLIKE THIS CASE, MUSCHANY
DID NOT INVOLVE A CONTRACT WHICH RESULTED FROM AN ILLEGAL TRANSACTION,
AND IT IS CONSEQUENTLY UNDERSTANDABLE THAT THE CONTRACT THERE IN
QUESTION WAS ENFORCED.  (FN18) 

THE COURT OF CLAIMS WAS OF THE OPINION THAT IT WOULD BE OVERLY HARSH
NOT TO ENFORCE THIS CONTRACT, SINCE THE SPONSORS COULD NOT HAVE
CONTROLLED WENZELL'S ACTIVITIES AND WERE GUILTY OF NO WRONGDOING. 
HOWEVER, WE THINK THAT THE COURT EMPHASIZED THE WRONG CONSIDERATIONS. 
ALTHOUGH NONENFORCEMENT FREQUENTLY HAS THE EFFECT OF PUNISHING ONE WHO
HAS BROKEN THE LAW, ITS PRIMARY PURPOSE IS TO GUARANTEE THE INTEGRITY
OF THE FEDERAL CONTRACTING PROCESS AND TO PROTECT THE PUBLIC FROM THE
CORRUPTION WHICH MIGHT LIE UNDETACTABLE BENEATH THE SURFACE OF A
CONTRACT CONCEIVED IN A TAINTED TRANSACTION.  CF. CROCKER V. UNITED
STATES, 240 U.S. 74, 80-81.  IT IS THIS INHERENT DIFFICULTY IN
DETECTING CORRUPTION WHICH REQUIRES THAT CONTRACTS MADE IN VIOLATION OF
ENFORCEMENT OSTENSIBLY APPEARS ENTIRELY INNOCENT.  CF. HAZELTON V.
SHECKELLS, 202 U.S. 71, 79.  THEREFORE, EVEN IF THE RESULT IN A GIVEN
CASE MAY SEEM HARSH, AND WE DO NOT THINK THAT SUCH IS THE CASE HERE,
(FN19) THAT RESULT IS DICTATED BY THE PUBLIC POLICY MANIFESTED BY THE
STATUTE.  WE AGREE WITH JUDGE JONES' STATEMENT THAT "THE POLICY SO
CLEARLY EXPRESSED IN 18 U.S.C. 434 LEAVES NO ROOM FOR EQUITABLE
CONSIDERATIONS  ...  .  IF THAT POLICY IS TO BE NARROWED OR LIMITED BY
EXCEPTIONS, IT IS THE FUNCTION OF CONGRESS AND NOT OF THIS COURT TO
SPELL OUT SUCH LIMITATIONS AND EXCEPTIONS."  175 F. SUPP., AT 533
(DISSENTING OPINION). 

IN CONCLUDING THAT THE SPONSORS WERE ENTITLED TO ENFORCE THEIR
CONTRACT, THE COURT BELOW EXPRESSED THE OPINION THAT THE GOVERNMENT MAY
NOT AVOID A BAD BARGAIN BY RELYING UPON A CONFLICT OF INTEREST WHICH
WAS DIRECTLY CAUSED BY HIGH OFFICIALS IN THE BUREAU OF THE BUDGET.  OF
COURSE, THE GOVERNMENT COULD NOT AVOID THE CONTRACT MERELY BECAUSE IT
TURNED OUT TO BE A BAD BARGAIN.  (FN20)  SEE MUSCHANY V. UNITED STATES,
SUPRA, AT 66-67.  HOWEVER, THAT IS NOT THE ISSUE BEFORE US.  THE
QUESTION IS WHETHER THE GOVERNMENT MAY DISAFFIRM A CONTRACT WHICH IS
INFECTED BY AN ILLEGAL CONFLICT OF INTEREST.  AS WE HAVE INDICATED, THE
PUBLIC POLICY EMBODIED IN SECTION 434 REQUIRES NONENFORCEMENT, AND THIS
IS TRUE EVEN THOUGH THE CONFLICT OF INTEREST WAS CAUSED OR CONDONED BY
HIGH GOVERNMENT OFFICIALS.  THE SAME STRONG POLICY WHICH PREVENTS AN
ADMINISTRATIVE OFFICIAL FROM EXEMPTING HIS SUBORDINATES FROM THE
COVERAGE OF THE STATUTE ALSO DICTATES THAT THE ACTIONS OF SUCH AN
OFFICIAL NOT BE CONSTRUED AS REQUIRING ENFORCEMENT OF AN ILLEGAL
CONTRACT.  (FN21) 

ALTHOUGH NONENFORCEMENT MAY SEEM HARSH IN A GIVEN CASE, WE THINK THAT
IT IS REQUIRED IN ORDER TO EXTEND TO THE PUBLIC THE FULL PROTECTION
WHICH CONGRESS DECREED BY ENACTING SECTION 434.  (FN22) 

THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  THE POSITIONS HELD BY THE VARIOUS INDIVIDUALS NAMED IN THIS
OPINION ARE THOSE WHICH WERE HELD AT THE TIME THE TRANSACTION IN
QUESTION OCCURRED. 

FN2  THE STATUTE READS AS FOLLOWS: 

"WHOEVER, BEING AN OFFICER, AGENT OR MEMBER OF, OR DIRECTLY OR
INDIRECLTY INTERESTED IN THE PECUNIARY PROFITS OR CONTRACTS OF ANY
CORPORATION, JOINT-STOCK COMPANY, OR ASSOCIATION, OR OF ANY FIRM OR
PARTNERSHIP, OR OTHER BUSINESS ENTITY, IS EMPLOYED OR ACTS AS AN
OFFICER OR AGENT OF THE UNITED STATES FOR THE TRANSACTION OF BUSINESS
WITH SUCH BUSINESS ENTITY, SHALL BE FINED NOT MORE THAN $2,000 OR
IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH." 

FN3  THERE WERE FOUR OPINIONS IN THE LOWER COURT.  THE PRINCIPAL ONE
WAS WRITTEN BY JUDGE MADDEN OF THE COURT OF CLAIMS, AND IT WAS JOINED
BY JUDGES LARAMORE OF THE COURT OF CLAIMS AND BRYAN, UNITED STATES
DISTRICT JUDGE SITTING BY ASSIGNMENT.  JUDGE BRYAN ALSO WROTE A
CONCURRING OPINION.  MR. JUSTICE REED (RETIRED), SITTING BY ASSIGNMENT,
WROTE A DISSENTING OPINION WHICH WAS JOINED BY JUDGE JONES, CHIEF JUDGE
OF THE COURT OF CLAIMS.  JUDGE JONES ALSO WROTE A SEPARATE DISSENT. 

FN4  THE OTHER DEFENSES RAISED BY THE GOVERNMENT WERE: 

(1)  THAT THE AEC HAD NOT BEEN AUTHORIZED BY THE ATOMIC ENERGY ACT OF
1954 TO MAKE THE CONTRACT: 

(2)  THAT THE CONTRACT HAD NOT BEEN PLACED BEFORE THE JOINT COMMITTEE
ON ATOMIC ENERGY IN THE MANNER REQUIRED BY THE ATOMIC ENERGY ACT: 

(3)  THAT THE FINANCING AGREEMENTS REQUIRED BY THE CONTRACT VIOLATED
THE PUBLIC UTILITY ACT OF 1935: 

(4)  THAT THE RESPONDENT HAD NOT OBTAINED ALL OF THE REGULATORY
APPROVALS REQUIRED FOR IT TO ARRANGE THE FINANCING NECESSARY FOR
PERFORMANCE OF THE CONTRACT; AND: 

(5)  THAT THE POWER CONTRACT WAS VOID FOR LACK OF MUTUALITY. 

FN5  ANY QUOTED MATERIAL IN THE STATEMENT OF FACTS IS TAKEN FROM THE
COURT OF CLAIMS' FINDINGS OF FACT. 

FN6  THOSE STEPS CONSISTED OF UNDERTAKING INITIAL ACTION TOWARD
FINANCING THE PROJECT, ATTEMPTING TO OBTAIN THE REGULATORY APPROVALS
REQUIRED UNDER THE TERMS OF THE CONTRACT, TAKING OPTIONS ON LAND WHICH
WAS TO BE THE SITE OF THE PLANT, AND LETTING SOME OF THE BASIC
CONSTRUCTION CONTRACTS. 

FN7  OVEC STANDS FOR THE OHIO VALLEY ELECTRIC CORPORATION, WHICH IS A
GENERATING COMPANY COMPOSED OF SEVERAL PRIVATE UTILITY COMPANIES.  IN
1952, OVEC HAD CONTRACTED WITH THE AEC TO SUPPLY IT WITH POWER AT ITS
PORTSMOUTH, OHIO, INSTALLATION.  THE PORTSMOUTH PROJECT REQUIRED A
LARGE AMOUNT OF FINANCING, AND FIRST BOSTON HAD BEEN RETAINED TO HANDLE
THE ARRANGEMENTS.  FIRST BOSTON WAS STILL ENGAGED IN ITS PORTSMOUTH
UNDERTAKING WHEN WENZELL FIRST CAME TO THE BUREAU OF THE BUDGET IN
1953. 

FN8  IN OUR REHEARSAL OF THE FACTS, WE HAVE NECESSARILY OMITTED
MENTION OF NUMEROUS INCONSEQUENTIAL MEETINGS AND TELEPHONE
CONVERSATIONS BETWEEN WENZELL AND REPRESENTATIVES OF THE GOVERNMENT AND
OF THE SPONSORS.  WE MAKE THIS FACT KNOWN ONLY TO COMPLETE THE PICTURE
AND TO INDICATE THAT WENZELL WAS CONTINUOUSLY INVOLVED IN THE
NEGOTIATIONS DURING HIS TENURE WITH THE BUREAU OF THE BUDGET.  IT
SHOULD ALSO BE NOTED THAT HUGHES WAS AWARE OF MOST OF WENZELL'S
ACTIVITIES, BOTH THOSE WHICH WE HAVE DESCRIBED AND THOSE WHICH WE HAVE
NOT MENTIONED IN DETAIL. 

FN9  101 CONG. REC. 1714. 

FN10  THE OTHER STATUTES ARE 18 U.S.C. SECS. 216, 281, 283, 284,
1914. 

FN11  ACT OF MARCH 2, 1863, C. 67, SEC. 8, 12 STAT. 696, 698.  SEE
H.R. REP. NO. 2, 37TH CONG., 2D SESS., GOVERNMENT CONTRACTS AND
APPENDIX. 

FN12  R.S. SEC. 1783; ACT OF MARCH 4, 1909, C. 321, SEC. 41, 35 STAT.
1097; ACT OF JUNE 25, 1948, 62 STAT. 703. 

FN13  SEE, E.G., 18 U.S.C. SECS. 431-433; 15 U.S.C. SECS. 1, 13,
13C. 

FN14  THE PREVENTIVE NATURE OF CONFLICT-OF-INTEREST STATUTES WAS ABLY
DESCRIBED BY THE COURT OF CLAIMS IN MICHIGAN STEEL BOX CO. V. UNITED
STATES, 49 CT. CL. 421, 439: 

"THE REASON OF THE RULE INHIBITING A PARTY WHO OCCUPIES CONFIDENTIAL
AND FIDUCIARY RELATIONS TOWARD ANOTHER FROM ASSUMING ANTAGONISTIC
POSITIONS TO HIS PRINCIPAL IN MATTERS INVOLVING THE SUBJECT MATTER OF
THE TRUST IS SOMETIMES SAID TO REST IN A SOUND PUBLIC POLICY, BUT IT
ALSO IS JUSTIFIED IN A RECOGNITION OF THE AUTHORITATIVE DECLARATION
THAT NO MAN CAN SERVE TWO MASTERS; AND CONSIDERING THAT HUMAN NATURE
MUST BE DEALT WITH, THE RULE DOES NOT STOP WITH ACTUAL VIOLATIONS OF
SUCH TRUST RELATIONS, BUT INCLUDES WITHIN ITS PURPOSE THE REMOVAL OF
ANY TEMPTATION TO VIOLATE THEM ...  ." 

WE HAVE TAKEN A SIMILAR VIEW OF THE EVILS WHICH FLOW FROM CONTIGENT
FEE ARRANGEMENTS FOR OBTAINING GOVERNMENT CONTRACTS.  IN HAZELTON V.
SHECKELLS, 202 U.S. 71, 79, WE SAID:  "THE OBJECTION TO THEM RESTS IN
THEIR TENDENCY, NOT IN WHAT WAS DONE IN THE PARTICULAR CASE  ...  .
THE COURT WILL NOT INQUIRE WHAT WAS DONE.  IF THAT SHOULD BE IMPROPER
IT PROBABLY WOULD BE HIDDEN AND WOULD NOT APPEAR."  SEE ALSO OSCANYAN
V. ARMS CO., 103 U.S. 261, 275; TOOL CO. V. NORRIS, 2 WALL, 45, 55. 
FN15  IRREGULAR EMPLOYEES OF THE GOVERNMENT, WHETHER COMPENSATED OR
NOT, HAVE ALWAYS BEEN CONSIDERED BY THE EXECUTIVE BRANCH TO BE SUBJECT
TO THE CONFLICT-OF-INTEREST STATUTES.  SEE, E.G., 40 OP. ATTY. GEN.
168, 289, 294; 41 OP. ATTY. GEN. NO. 64. 

FN16  THAT WENZELL, ON AT LEAST TWO OCCASIONS, BROUGHT SENIOR
OFFICERS FROM FIRST BOSTON WITH HIM TO NEGOTIATING SESSIONS IS FURTHER
EVIDENCE OF THE FACT THAT WENZELL FREQUENTLY ATTEMPTED TO PLACE FIRST
BOSTON IN A POSITION OF PREDOMINANCE. 

FN17  THE FACT THAT FIRST BOSTON SUBSEQUENTLY DECIDED NOT TO ACCEPT A
FEE IS IRRELEVENT TO A DETERMINATION OF WHETHER WENZELL VIOLATED THE
STATUTE.  FIRST BOSTON'S DECISION WAS NOT REACHED UNTIL MANY MONTHS
AFTER WENZELL HAD TERMINATED HIS CONNECTION WITH THE BUREAU OF THE
BUDGET.  AT THE TIME WENZELL REPRESENTED THE GOVERNMENT, WHICH IS THE
PERIOD CRUCIAL TO OUR DETERMINATION, FIRST BOSTON FULLY EXPECTED TO
ACCEPT A FEE FOR SERVICES WHICH IT MIGHT RENDER, AND WENZELL HAD EVERY
REASON TO EXPECT THAT HE WOULD BENEFIT FROM ANY PROFITS THAT FIRST
BOSTON MIGHT MAKE.  IT WAS THIS EXPECTATION THAT INFECTED THE
TRANSACTION, AND THE TAINT CANNOT BE REMOVED BY A SUBSEQUENT,
UNILATERAL DECISION ON THE PART OF FIRST BOSTON TO FOREGO ITS FEE. 

FN18  THE OTHER CASES RELIED UPON BY THE RESPONDENT, UNITED STATES V.
CHEMICAL FOUNDATION, 272 U.S. 1; ARCHITECTS BUILDING CORP. V. UNITED
STATES, 98 CT. CL. 368, ARE ALSO DISTINGUISHABLE ON THE GROUND THAT THE
ACTIVITIES OF THE GOVERNMENT AGENTS THERE INVOLVED WERE FOUND BY THE
COURTS NOT TO CONSTITUTE A VIOLATION OF ANY CONFLICT-OF-INTEREST
STATUTE.  THEREFORE, SINCE THE CONTRACTS IN THOSE CASES HAD NOT
EMANATED FROM AN ILLEGAL TRANSACTION, THEY WERE ENFORCED. 

FN19  WE DO NOT THINK THAT THE RESULT IN THIS CASE IS HARSH BECAUSE
THE SPONSORS WERE NOT AS NAIVE REGARDING THE CONFLICT-OF-INTEREST
QUESTION AS THE COURT OF CLAIMS IMPLIED.  THEY RECOGNIZED WENZELL'S
CONFLICT OF INTEREST ALMOST FROM THE OUTSET OF THE NEGOTIATIONS. 
HOWEVER, INSTEAD OF REFUSING TO NEGOTIATE WITH WENZELL OR OF MAKING IT
CLEAR BOTH TO WENZELL AND TO ALL THE OTHER INTERESTED PARTIES THAT IF
WENZELL PARTICIPATED IN THE NEGOTIATIONS, FIRST BOSTON WOULD UNDER NO
CIRCUMSTANCES BE CONSIDERED AS THE FINANCING AGENT FOR THE PROJECT, THE
SPONSORS DEALT ALMOST EXCLUSIVELY WITH WENZELL AND CONTINUALLY
FORTIFIED HIS BELIEF THAT FIRST BOSTON WOULD BE SELECTED AS THE
FINANCING AGENT SHOULD A CONTRACT RESULT FROM THE NEGOTIATIONS. 

FN20  THERE IS NOTHING IN THE FINDINGS TO SHOW WHETHER THE CONTRACT
HERE INVOLVED WAS FAVORABLE OR UNFAVORABLE TO THE GOVERNMENT. 

FN21  IT SHOULD BE REMEMBERED THAT THE CONTRACTING AGENCY, THE AEC,
HAD VIRTUALLY NO KNOWLEDGE OF THE ACTIVITIES WHICH WENZELL WAS
CONDUCTING ON BEHALF OF THE SPONSORS DURING HIS TENURE WITH THE BUREAU
OF THE BUDGET.  IT MAY WELL BE THAT HAD THE AEC KNOWN OF THESE FACTS,
IT WOULD HAVE INSISTED THAT WENZELL BE PRECLUDED FROM REPRESENTING THE
GOVERNMENT, OR, AT LEAST, WOULD HAVE SCRUTINIZED HIS RECOMMENDATIONS
MORE CLOSELY. 

FN22  THE RESPONDENT ALSO CONTENDS THAT EVEN IF THE CONTRACT IS NOT
ENFORCEABLE, A RECOVERY QUANTUM VALEBAT SHOULD BE DECREED.  HOWEVER,
SUCH A REMEDY IS APPROPRIATE ONLY WHERE ONE PARTY TO A TRANSACTION HAS
RECEIVED AND RETAINED TANGIBLE BENEFITS FROM THE OTHER PARTY.  SEE
CROCKER V. UNITED STATES, 240 U.S. 74, 81-82.  SINCE THE GOVERNMENT HAS
RECEIVED NOTHING FROM THE RESPONDENT, NO RECOVERY QUANTUM VALEBAT IS IN
ORDER. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITTAKER AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

IN A CASE LIKE THIS CONTROLLING LEGAL ISSUES ARE APT TO BECOME
BLURRED UNDER THE URGE OF VINDICATING A PUBLIC POLICY WHOSE IMPORTANCE
NO ONE WILL DISPUTE.  HOWEVER, WE SIT HERE NOT AS A COMMITTEE ON
GENERAL BUSINESS ETHICS, BUT AS A COURT ENFORCING A SPECIFIC PIECE OF
LEGISLATION. 

WHILE I AM BOUND TO SAY THAT THE GOVERNMENT'S DEFENSE TO THIS CLIAM
FOR OUT-OF-POCKET EXPENSES INCURRED IN A MATTER THAT THE GOVERNMENT WAS
ONCE ANXIOUS TO EXPLORE, IS FAR FROM INGRATIATING, (FN1) I MUST AGREE
WITH THE COURT THAT WENZELL'S GOVERNMENT ROLE IN CONNECTION WITH THE
MISSISSIPPI VALLEY CONTRACT, THOUGH IN THE VIEW OF THE COURT OF CLAIMS
IT WAS QUITE PERIPHERAL, WAS SUFFICIENT TO CONSTITUTE HIM ONE WHO "ACTS
AS AN OFFICER OR AGENT OF THE UNITED STATES" WITHIN THE MEANING OF 18
U.S.C. SEC. 434, (FN2) AND THAT IF HE WAS PERSONALLY "INDIRECTLY
INTERESTED" IN THAT CONTRACT VIA FIRST BOSTON THE CASE MUST GO FOR THE
GOVERNMENT.  BUT IN LIGHT OF THE FINDINGS OF THE COURT OF CLAIMS I
CANNOT AGREE THAT WENZELL WAS SO INTERESTED, WITHIN THE CONTEMPLATION
OF SEC. 434.  IN MY OPINION THIS COURT'S CONTRARY CONCLUSION RESTS UPON
TOO LOOSE A VIEW OF THE CONTROLLING STATUTORY PHRASE. 

REFERRING TO THE PERIOD OF WENZELL'S GOVERNMENTAL SERVICE, THE COURT
OF CLAIMS CONCLUDED: 

"THERE IS NOT A SHADOW OF EVIDENCE THAT IT (FIRST BOSTON) HAD ANY
AGREEMENT OR COMMITMENT, WRITTEN OR ORAL, FORMAL OR INFORMAL,
CONTINGENT OR OTHERWISE THAT, IN THE EVENT THAT THE PROPOSAL OF THE
DIXON-YATES GROUP WHICH WAS IN PREPARATION WHEN WENZELL'S GOVERNMENT
EMPLOYMENT ENDED SHOULD RESULT IN NEGOTIATIONS WHICH SHOULD, IN THE
COURSE OF EVENTS, RESULT IN A CONTRACT, FIRST BOSTON WOULD BE GIVEN THE
OPPORTUNITY TO EARN A COMMISSION BY SELLING THE BONDS OF THE
CORPORATION (MISSISSIPPI VALLEY) WHICH WOULD BE FORMED TO SIGN AND
PERFORM THE CONTRACT.  THE EVIDENCE IS PERFECTLY PLAIN THAT THERE WAS
NO SUCH AGREEMENT OR UNDERSTANDING."  175 F. SUPP., AT 518. 

I DO NOT UNDERSTAND THE COURT TO TAKE ISSUE WITH THIS CONCLUSION OR
WITH ANY OF THE FINDINGS OF THE HEARING EXAMINER ON WHICH IT WAS
BASED.  IT COULD NOT WELL DO SO, CF.  COMMISSIONER V. DUBERSTEIN, 363
U.S. 278; NOR DOES THE GOVERNMENT ASK THIS.  RATHER, THE COURT FINDS
THE PROHIBITED "INDIRECT INTEREST" TO CONSIST OF WENZELL'S EXPECTATION
IN THE PROBABILITY THAT FIRST BOSTON, BY VIRTUE OF ITS REPUTATION IN
THE FIELD OF PRIVATE POWER FINANCING AND ITS HAVING PREVIOUSLY ARRANGED
THE FINANCING FOR A SIMILAR PROJECT, WOULD EVENTUALLY SHARE IN THE
FINANCING OF THIS VENTURE. 

I DO NOT BELIEVE THAT SUCH A PROBABILITY ALONE GIVES RISE TO A
CONTAMINATING INTEREST UNDER SEC. 434.  THE FACT THAT THE PROBABILITY
EVENTUATED INTO ACTUALITY AFTER WENZELL'S GOVERNMENT SERVICE TERMINATED
CAN HARDLY BE RELEVANT, FOR WHAT THE COURT, UNDER ITS VIEW OF THE
STATUTE, CORRECTLY SAYS AS TO THE IMMATERIALITY OF FIRST BOSTON'S LATER
WAIVER OF COMMISSIONS MUST SURELY ALSO WORK IN REVERSE.  WHETHER OR NOT
A PROHIBITED INTEREST EXISTS MUST BE DETERMINED AS OF THE PERIOD DURING
WHICH AN INDIVIDUAL IS ACTING FOR THE GOVERNMENT.  AND WHEN THE
ASSERTED INTEREST ARISES "INDIRECTLY" BY WAY OF A SUBCONTRACT, ITS
EXISTENCE CAN, IN MY OPINION, ONLY BE FOUND IN SOME COMMITMENT,
ARRANGEMENT, OR UNDERSTANDING OBTAINING AT THAT TIME BETWEEN THE PRIME
CONTRACTOR AND SUBCONTRACTOR.  (FN3)  I BELIEVE THIS LATTER PROPOSITION
IS SUPPORTED BY PERSUASIVE CONSIDERATIONS. 

FIRST.  IT FITS THE LANGUAGE OF SEC. 434, WHEREAS THE COURT'S VIEW
DOES NOT.  THE STATUTE DOES NOT SPEAK OF THE DISQUALIFYING FACTORS IN
TERMS OF EXPECTATIONS OR PROBABILITIES, BUT IMPORTS A PRECISE STANDARD,
THAT IS, A PRESENT STATUS OR PECUNIARY INTEREST ARISING FROM SOME
EXISTING RELATIONSHIP WITH THE BUSINESS ENTITY CONTRACTING WITH THE
GOVERNMENT.  CERTAINLY THIS IS TRUE AS TO AN "OFFICER," "AGENT," OR
"MEMBER" OF THE CONTRACTING ENTERPRISE.  IT IS EQUALLY TRUE OF ONE
DISQUALIFIED BY REASON OF "BEING  ...  DIRECTLY  ...  INTERESTED IN THE
PECUNIARY PROFITS OR CONTRACTS" OF SUCH AN ENTITY.  I CAN SEE NO REASON
WHY IT SHOULD NOT ALSO BE TRUE AS TO ONE "INDIRECTLY" SO INTERESTED,
REQUIRING IN THIS INSTANCE PROOF OF SOME THEN-EXISTING ARRANGEMENT
BETWEEN MISSISSIPPI VALLEY AND FIRST BOSTON.  I DO NOT MEAN TO SUGGEST
THAT SUCH AN ARRANGEMENT MUST BE EVIDENCED BY A FORMAL AGREEMENT, FOR
OF COURSE ANY SORT OF TACIT UNDERSTANDING OR "GENTLEMEN'S AGREEMENT"
WILL SUFFICE.  BUT HERE THE COURT OF CLAIMS HAS EXPRESSLY FOUND AGAINST
THE EXISTENCE OF ANY SUCH THING. 

SECOND.  THE VIEW WHICH I TAKE OF THE MATTER ALSO FITS THE PURPOSE OF
SEC. 434.  THE POLICY AND RATIONALE OF THE STATUTE ARE CLEAR:  AN
INDIVIDUAL WHO NEGOTIATES BUSINESS FOR THE GOVERNMENT SHOULD NOT BE
EXPOSED TO THE TEMPTATION WHICH MIGHT BE CREATED BY A LOYALTY DIVIDED
BETWEEN THE INTEREST OF THE GOVERNMENT AND HIS OWN SELF-INTEREST; THE
RISK THAT THE GOVERNMENT WILL NOT BE LEFT WITH THE BEST POSSIBLE
TRANSACTION IS TOO GREAT.  IN TERMS OF THESE FACTORS, A FINDING OF SOME
COMMITMENT, ARRANGEMENT OR UNDERSTANDING BETWEEN THE PRIME CONTRACTOR
AND THE SUBCONTRACTOR SHOULD BE REQUIRED WHEN THE CONTRACTING OFFICER'S
ADVERSE INTEREST ARISES BY WAY OF A SUBCONTRACT SINCE ONLY WHERE SOME
SUCH ARRANGEMENT EXISTS CAN THE OFFICER BE TAKEN TO HAVE KNOWN THAT ANY
UNDUE BENEFIT HE CONFERS ON THE PRIME CONTRACTOR WILL NOT EVENTUALLY
REDOUND TO THE PROFIT OF SOME OTHER COMPETING SUBCONTRACTOR. 

HERE, FOR INSTANCE, IT WAS FOUND BELOW THAT MISSISSIPPI VALLEY "A
MONTH AFTER WENZELL'S GOVERNMENT EMPLOYMENT HAD TERMINATED  ...  FELT
PERFECTLY FREE TO GIVE THE BOND-SELLING BUSINESS TO WHOMEVER IT
PLEASED."  175 F. SUPP., AT 518.  HENCE IF WENZELL DID IN FACT CONFER
SOME UNDUE BENEFIT ON MISSISSIPPI DURING THE TERM OF HIS GOVERNMENT
SERVICE (ALTHOUGH NONE IS SUGGESTED), HE MUST HAVE KNOWN THAT HE WAS
CONFERRING THAT BENEFIT AT LARGE, AND THAT IF FIRST BOSTON LATER WERE
TO SHARE IN IT THIS WOULD ONLY BE THE CONSEQUENCE OF ITS HAVING
SUCCESSFULLY COMPETED AGAINST OTHER INVESTMENT BANKERS WITH SIMILAR
QUALIFICATIONS.  FURTHERMORE, WHERE THE GOVERNMENT OFFICER'S EVENTUAL
INDIRECT PARTICIPATION IN THE CONTRACT WHICH HE HAS NEGOTIATED (BY
HYPOTHESIS IMPROPERLY) DEPENDS ON THE CHANCE OF COMPETITION AFTER HE
HAS LOST THE LEVERAGE WHICH HIS POSITION GAVE, THEN IT WOULD BE SUBJECT
TO THE ADDITIONAL HAZARD THAT ALTHOUGH THE CONTRACTOR HAS RECEIVED A
BOON AT HIS HANDS, ALL THE SUBCONTRACTOR RECEIVES IS SUCH A NORMAL
SUBCONTRACT AS HE MIGHT HAVE HAD IN ANY CASE. 

THIRD.  THE COURT'S INTERPRETATION OF SEC. 434 INTRODUCES UNNECESSARY
AND UNDESIRABLE UNCERTAINTIES INTO THE STATUTE.  INSTEAD OF PRESENTING
THE INDIVIDUAL CONCERNED OR THE TRIER OF FACT WITH A DEFINITE STANDARD
FOR DETERMINING WHETHER A DISQUALIFYING INTEREST OF THIS KIND IS
PRESENT - THE EXISTENCE VEL NON OF A COMMITMENT OR UNDERTAKING BETWEEN
THE PRIMARY AND SECONDARY CONTRACTORS - THE QUESTION IS LEFT AT LARGE. 
THE OPINION IN THIS CASE INDEED HIGHLIGHTS THE MATTER.  FOR AFTER
APPARENTLY AGREEING THAT A "MERE HOPE" THAT FIRST BOSTON MIGHT SHARE IN
THE FINANCING OF THE POWER CONTRACT WOULD NOT BE ENOUGH, THE COURT GOES
ON TO DESCRIBE THAT EVENTUALITY IN A VARIETY OF WAYS - THAT THERE WAS
"A SUBSTANTIAL PROBABILITY" OF IT; THAT IT WAS "PROBABLE"; THAT "IT
SEEMED LIKELY"; THAT IT "STOOD A GOOD CHANCE" OF COMING TO PASS; AND
THAT IT MIGHT SIMPLY FOLLOW FROM THE "'LOGIC OF CIRCUMSTANCES'" AS A
"'SUBSTANTIAL POSSIBILITY.'" 

SUCH UNCERTAINTY, INHERENT IN THE COURT'S VIEW OF THE STATUTE, IS
BOUND TO CAUSE FUTURE CONFUSION IN AN AREA WHERE THE LINE OF
DEMARCATION SHOULD BE CLEAR CUT.  AS TIME GOES ON IT WILL FACE MANY
CONSCIENTIOUS PERSONS WITH THE KIND OF CLOSE AND SUBTLE NICETIES WHICH,
AS EVERY JUDGE AND LAWYER KNOWS, OFTEN ATTEND A MATTER OF POSSIBLE
DISQUALIFICATION.  SUCH ILLUSIVE FACTORS SHOULD NOT BE IMPORTED INTO A
STATUTE GOVERNING THE CONDUCT PRIMARILY OF LAYMEN SERVING THE
GOVERNMENT. 

FOURTH.  I THINK THERE IS AFFIRMATIVE GROUND IN THE PATTERN OF
CONFLICT-OF-INTEREST LEGISLATION FOR NOT ATTRIBUTING TO CONGRESS THE
PURPOSE WHICH THE COURT HERE DOES.  THE STATUTE IN QUESTION IS THE MOST
GENERAL CONFLICT-OF-INTEREST ENACTMENT, BUT THERE ARE OTHER PROVISIONS
OF LAW, AS WELL AS FEDERAL REGULATIONS, WHICH ALSO DEAL WITH THE
SUBJECT.  PARTICULARLY 5 U.S.C. SEC. 99 AND 18 U.S.C. SEC. 284 INDICATE
A DIFFERENT APPROACH TO THE PROBLEM.  THE TWO STATUTES DISQUALIFY
FORMER OFFICERS AND EMPLOYEES OF GOVERNMENTAL AGENCIES OR DEPARTMENTS
FOR A PERIOD OF TWO YEARS FROM PROSECUTING OR AIDING IN ANY WAY IN THE
PROSECUTION OF A CLAIM WHICH HAD BEEN PENDING AT THE TIME OF THEIR
EMPLOYMENT.  A SIMILAR APPROACH IS SUGGESTED BY THIS COURT'S RULE 7
WHICH PROHIBITS CLERKS AND SECRETARIES FROM PRACTICING BEFORE THIS
COURT FOR A PERIOD OF TWO YEARS AFTER LEAVING THE COURT, AND FROM
PARTICIPATING IN ANY WAY IN A CASE WHICH WAS BEFORE THE COURT DURING
THE TERM OF THEIR EMPLOYMENT.  CF. CANON 36 OF THE CANONS OF
PROFESSIONAL ETHICS OF THE AMERICAN BAR ASSOCIATION. 

THE INTERPRETATION WHICH THE COURT TODAY GIVES 18 U.S.C. SEC. 434, IF
IT IS TO BE TAKEN AS MORE THAN A DISPOSITION OF THIS PARTICULAR
CONTROVERSY, WILL GO A LONG WAY TO ASSIMILATING THAT STATUTE IN
PRACTICAL EFFECT TO THE ABSOLUTE DISQUALIFICATION TYPE OF PROVISION,
FOR CERTAINLY WHERE CRIMINAL SANCTIONS ARE INVOLVED NO PRUDENT MAN WILL
RISK LATER ACQUIRING AN INTEREST IN A CONTRACT WHICH HE HELPED TO
NEGOTIATE DURING A PREVIOUS TERM OF GOVERNMENT EMPLOYMENT.  WHETHER
SUCH A RIGID RULE, OF A KIND TRADITIONAL IN THE LEGAL PROFESSION,
SHOULD ALSO BE REGARDED AS ONE OF GENERAL MORALITY IN THE PUBLIC
SERVICE MAY, OF COURSE, WELL BE DEBATED.  HOWEVER, CONGRESS DID NOT, IN
MY VIEW, ENACT THIS PRECEPT INTO LAW IN THE PRESENT STATUTE, AND WHERE
IT HAS ENACTED THIS POLICY IT HAS DONE SO WITH A CLARITY AND PRECISION
WHICH I FEEL THE PRESENT READING OF SEC. 434 LACKS.  I WOULD AFFIRM. 

FN1  WENZELL'S SUPERIORS IN THE GOVERNMENT WERE FULLY AWARE OF HIS
CONNECTION WITH FIRST BOSTON AND OF THE POSSIBILITY THAT FIRST BOSTON
MIGHT LATER FIGURE IN THE FINANCING OF THE CONTEMPLATED PRIVATE POWER
PROJECT; AND WITH SUCH KNOWLEDGE THEY AFFIRMATIVELY ACQUIESCED, AND
INDEED ENCOURAGED, HIS CONTINUING IN HIS CONSULTATIVE ROLE.  THE POWER
CONTRACT, WHICH THE GOVERNMENT RECOGNIZES WAS THE PRODUCT OF HARD
BARGAINING AND IMPLICITLY CONCEDES WAS FAIR, WAS EVENTUALLY TERMINATED
ONLY BECAUSE THE GOVERNMENT HAD LOST INTEREST IN IT.  THE DEFENSE OF
ILLEGALITY WAS RAISED FOR THE FIRST TIME IN THIS SUIT, AND ONLY AFTER A
POLITICAL STORM HAD ARISEN OVER THE PUBLIC VERSUS PRIVATE POWER ISSUE. 
NEVERTHELESS I THINK THE COURT IS RIGHT IN CONSIDERING THAT ALL THESE
FACTORS ARE RENDERED IMMATERIAL BY THE STATUTE IN QUESTION.    FN2
"SEC.  434.  INTERESTED PERSONS ACTING AS GOVERNMENT AGENTS. 
"WHOEVER, BEING AN OFFICER, AGENT OR MEMBER OF, OR DIRECTLY OR
INDIRECTLY INTERESTED IN THE PECUNIARY PROFITS OR CONTRACTS OF ANY
CORPORATION, JOINT-STOCK COMPANY, OR ASSOCIATION, OR OF ANY FIRM OR
PARTNERSHIP, OR OTHER BUSINESS ENTITY, IS EMPLOYED OR ACTS AS AN
OFFICER OR AGENT OF THE UNITED STATES FOR THE TRANSACTION OF BUSINESS
WITH SUCH BUSINESS ENTITY, SHALL BE FINED NOT MORE THAN $2,000 OR
IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH." 

FN3  WHETHER ABSENCE OF KNOWLEDGE OF SUCH AN ARRANGEMENT ON THE PART
OF THE INDIVIDUAL CONCERNED WOULD BE A DEFENSE IS A MATTER NOT
PRESENTED BY THIS CASE. 
..END :




NATIONAL LABOR RELATIONS BOARD V. RADIO AND TELEVISION BROADCAST
ENGINEERS UNION, LOCAL 1212, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO 364 U.S. 573 


NO. 69.  ARGUED NOVEMBER 10, 14, 1960 - DECIDED JANUARY 9, 1961 - 272
F.2D 713, AFFIRMED. 


TWO LABOR UNIONS WERE ENGAGED IN A JURISDICTIONAL DISPUTE OVER A
CERTAIN TYPE OF WORK FOR A CERTAIN EMPLOYER.  BOTH HAD COLLECTIVE
BARGAINING AGREEMENTS WITH THE EMPLOYER, AND ONE WAS THE CERTIFIED
BARGAINING AGENT FOR ITS MEMBERS; BUT NEITHER THE CERTIFICATION NOR THE
AGREEMENTS CLEARLY APPORTIONED THE DISPUTED TYPE OF WORK BETWEEN THEIR
RESPECTIVE MEMBERS.  THE RESPONDENT UNION CAUSED A WORK STOPPAGE ON A
PARTICULAR JOB, BECAUSE WORK OF THIS TYPE WAS ASSIGNED TO MEMBERS OF
THE OTHER UNION.  THE EMPLOYER FILED AN UNFAIR LABOR PRACTICE CHARGE,
CLAIMING A VIOLATION OF SEC. 8(B)(4)(D) OF THE NATIONAL LABOR RELATIONS
ACT.  AFTER A HEARING UNDER SEC. 10(K), THE BOARD HELD THAT THE
RESPONDENT UNION WAS NOT ENTITLED TO HAVE THE WORK ASSIGNED TO ITS
MEMBERS; BUT THE BOARD REFUSED TO MAKE AN AFFIRMATIVE AWARD OF THE WORK
BETWEEN THE EMPLOYEES REPRESENTED BY THE TWO UNIONS.  RESPONDENT
REFUSED TO COMPLY WITH THE DECISION, AND THE BOARD ISSUED A CEASE-AND
DESIST ORDER TO COMPEL IT TO DO SO.  HELD:  THE BOARD'S ORDER IS NOT
ENTITLED TO ENFORCEMENT, BECAUSE THE BOARD HAD NOT DISCHARGED ITS DUTY
UNDER SEC. 10(K) TO "DETERMINE THE DISPUTE."  IT SHOULD HAVE MADE AN
AFFIRMATIVE AWARD OF THE WORK BETWEEN THE EMPLOYEES OF THE COMPETING
UNIONS.  PP. 574-586. 

NATIONAL LABOR RELATIONS BOARD V. RADIO AND TELEVISION BROADCAST
ENGINEERS UNION, LOCAL 1212, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE, IN WHICH THE COURT OF APPEALS REFUSED TO ENFORCE A CEASE
AND-DESIST ORDER OF THE NATIONAL LABOR RELATIONS BOARD, GREW OUT OF A
"JURISDICTIONAL DISPUTE" OVER WORK ASSIGNMENTS BETWEEN THE RESPONDENT
UNION, COMPOSED OF TELEVISION "TECHNICIANS," (FN1) AND ANOTHER UNION,
COMPOSED OF "STATE EMPLOYEES."  (FN2)  BOTH OF THESE UNIONS HAD
COLLECTIVE BARGAINING AGREEMENTS IN FORCE WITH THE COLUMBIA
BROADCASTING SYSTEM AND THE RESPONDENT UNION WAS THE CERTIFIED
BARGAINING AGENT FOR ITS MEMBERS, BUT NEITHER THE CERTIFICATION NOR THE
AGREEMENTS CLEARLY APPORTIONED BETWEEN THE EMPLOYEES REPRESENTED BY THE
TWO UNIONS THE WORK OF PROVIDING ELECTRIC LIGHTING FOR TELEVISION
SHOWS.  THIS LED TO CONSTANT DISPUTES, EXTENDING OVER A NUMBER OF
YEARS, AS TO THE PROPER ASSIGNMENT OF THIS WORK, DISPUTES THAT WERE
PARTICULARLY ACRIMONIOUS WITH REFERENCE TO "REMOTE LIGHTING," THAT IS,
LIGHTING FOR TELECASTS AWAY FROM THE HOME STUDIO.  EACH UNION
REPEATEDLY URGED COLUMBIA TO AMEND ITS BARGAINING AGREEMENT SO AS
SPECIFICALLY TO ALLOCATE REMOTE LIGHTING TO ITS MEMBERS RATHER THAN TO
MEMBERS OF THE OTHER UNION.  BUT, AS THE BOARD FOUND, COLUMBIA REFUSED
TO MAKE SUCH AN AGREEMENT WITH EITHER UNION BECAUSE "THE RIVAL LOCALS
HAD FAILED TO AGREE ON THE RESOLUTION OF THIS JURISDICTIONAL DISPUTE
OVER REMOTE LIGHTING."  (FN3)  THUS FEELING ITSELF CAUGHT "BETWEEN THE
DEVIL AND THE DEEP BLUE," (FN4) COLUMBIA CHOSE TO DIVIDE THE DISPUTED
WORK BETWEEN THE TWO UNIONS ACCORDING TO CRITERIA IMPROVISED APPARENTLY
FOR THE SOLE PURPOSE OF MAINTAINING PEACE BETWEEN THE TWO.  BUT, IN
TRYING TO SATISFY BOTH OF THE UNIONS, COLUMBIA HAS APPARENTLY NOT
SUCCEEDED IN SATISFYING EITHER.  DURING RECENT YEARS, IT HAS BEEN
FORCED TO CONTEND WITH WORK STOPPAGES BY EACH OF THE TWO UNIONS WHEN A
PARTICULAR ASSIGNMENT WAS MADE IN FAVOR OF THE OTHER.  (FN5) 

THE PRECISE OCCASION FOR THE PRESENT CONTROVERSY WAS THE DECISION OF
COLUMBIA TO ASSIGN THE LIGHTING WORK FOR A MAJOR TELECAST FROM THE
WALDORF-ASTORIA HOTEL IN NEW YORK CITY TO THE STAGE EMPLOYEES.  WHEN
THE TECHNICIANS' PROTEST OF THIS ASSIGNMENT PROVED UNAVAILING, THEY
REFUSED TO OPERATE THE CAMERAS FOR THE PROGRAM AND THUS FORCED ITS
CANCELLATION.  (FN6)  THIS CAUSED COLUMBIA TO FILE THE UNFAIR LABOR
PRACTICE CHARGE WHICH STARTED THESE PROCEEDINGS, CLAIMING A VIOLATION
OF SEC. 8(B)(4)(D) OF THE NATIONAL LABOR RELATIONS ACT.  (FN7)  THAT
INDUCE A STRIKE OR A CONCERTED REFUSAL TO WORK IN ORDER TO COMPEL AN
EMPLOYER TO ASSIGN PARTICULAR WORK TO EMPLOYEES REPRESENTED BY IT
RATHER THAN TO EMPLOYEES REPRESENTED BY ANOTHER UNION, UNLESS THE
EMPLOYER'S ASSIGNMENT IS IN VIOLATION OF "AN ORDER OR CERTIFICATION OF
THE BOARD DETERMINING THE BARGAINING REPRESENTATIVE FOR EMPLOYEES
PERFORMING SUCH WORK  ...  ."  (FN8)  OBVIOUSLY, IF SEC. 8(B)(4)(D)
STOOD ALONE, WHAT THIS UNION DID IN THE ABSENCE OF A BOARD ORDER OR
CERTIFICATION ENTITLING ITS MEMBERS TO BE ASSIGNED TO THESE PARTICULAR
JOBS WOULD BE ENOUGH TO SUPPORT A FINDING OF AN UNFAIR LABOR PRACTICE
IN A NORMAL PROCEEDING UNDER SEC. 10(C) OF THE ACT.  (FN9)  BUT WHEN
CONGRESS CREATED THIS NEW TYPE OF UNFAIR LABOR PRACTICE BY ENACTING
SEC. 8(B)(4)(D) AS PART OF THE TAFT-HARTLEY ACT IN 1947, IT ALSO ADDED
SEC. 10(K) TO THE ACT.  (FN10)  SECTION 10(K), SET OUT BELOW, (FN11)
QUITE PLAINLY EMPHASIZES THE BELIEF OF CONGRESS THAT IT IS MORE
IMPORTANT TO INDUSTRIAL PEACE THAT JURISDICTIONAL DISPUTES BE SETTLED
PERMANENTLY THAN IT IS THAT UNFAIR LABOR PRACTICE SANCTIONS FOR
JURISDICTIONAL STRIKES BE IMPOSED UPON UNIONS.  ACCORDINGLY, SEC. 10(K)
OFFERS STRONG INDUCEMENTS TO QUARRELLING UNIONS TO SETTLE THEIR
DIFFERENCES BY DIRECTING DISMISSAL OF UNFAIR LABOR PRACTICE CHARGES
UPON VOLUNTARY ADJUSTMENT OF JURISDICTIONAL DISPUTES.  AND EVEN WHERE
NO VOLUNTARY ADJUSTMENT IS MADE, "THE BOARD IS EMPOWERED AND DIRECTED,"
BY SEC. 10(K), "TO HEAR AND DETERMINE THE DISPUTE OUT OF WHICH SUCH
UNFAIR LABOR PRACTICE SHALL HAVE ARISEN," AND UPON COMPLIANCE BY THE
DISPUTANTS WITH THE BOARD'S DECISION THE UNFAIR LABOR PRACTICE CHARGES
MUST BE DISMISSED. 

IN THIS CASE RESPONDENT FAILED TO REACH A VOLUNTARY AGREEMENT WITH
THE STAGE EMPLOYEES UNION SO THE BOARD HELD THE SEC. 10(K) HEARING AS
REQUIRED TO "DETERMINE THE DISPUTE."  THE RESULT OF THIS HEARING WAS A
DECISION THAT THE RESPONDENT UNION WAS NOT ENTITLED TO HAVE THE WORK
ASSIGNED TO ITS MEMBERS BECAUSE IT HAD NO RIGHT TO IT UNDER EITHER AN
OUTSTANDING BOARD ORDER OR CERTIFICATION, AS PROVIDED IN SEC.
8(B)(4)(D), OR A COLLECTIVE BARGAINING AGREEMENT.  (FN12)  THE BOARD
REFUSED TO CONSIDER OTHER CRITERIA, SUCH AS THE EMPLOYER'S PRIOR
PRACTICES AND THE CUSTOM OF THE INDUSTRY, AND ALSO REFUSED TO MAKE AN
AFFIRMATIVE AWARD OF THE WORK BETWEEN THE EMPLOYEES REPRESENTED BY THE
TWO COMPETING UNIONS.  THE RESPONDENT UNION REFUSED TO COMPLY WITH THIS
DECISION, CONTENDING THAT THE BOARD'S CONCEPTION OF ITS DUTY TO
"DETERMINE THE DISPUTE" WAS TOO NARROW IN THAT THIS DUTY IS NOT AT ALL
LIMITED, AS THE BOARD WOULD HAVE IT, TO STRICTLY LEGAL CONSIDERATIONS
GROWING OUT OF PRIOR BOARD ORDERS, CERTIFICATIONS OR COLLECTIVE
BARGAINING AGREEMENTS.  IT URGED, INSTEAD, THAT THE BOARD'S DUTY WAS TO
MAKE A FINAL DETERMINATION, BINDING ON BOTH UNIONS, AS TO WHICH OF THE
TWO UNIONS' MEMBERS WERE ENTITLED TO DO THE REMOTE LIGHTING WORK,
BASING ITS DETERMINATION ON FACTORS DEEMED IMPORTANT IN ARBITRATION
PROCEEDINGS, SUCH AS THE NATURE OF THE WORK, THE PRACTICES AND CUSTOMS
OF THIS AND OTHER COMPANIES AND OF THESE AND OTHER UNIONS, AND UPON
OTHER FACTORS DEEMED RELEVANT BY THE BOARD IN THE LIGHT OF ITS
EXPERIENCE IN THE FIELD OF LABOR RELATIONS.  ON THE BASIS OF ITS
DECISION IN THE SEC. 10(K) PROCEEDING AND THE UNION'S CHALLENGE TO THE
VALIDITY OF THAT DECISION, THE BOARD ISSUED AN ORDER UNDER SEC. 10(C)
DIRECTING THE UNION TO CEASE AND DESIST FROM STRIKING TO COMPEL
COLUMBIA TO ASSIGN REMOTE LIGHTING WORK TO ITS MEMBERS.  THE COURT OF
APPEALS FOR THE SECOND CIRCUIT REFUSED TO ENFORCE THE CEASE-AND-DESIST
ORDER, ACCEPTING THE RESPONDENT'S CONTENTION THAT THE BOARD HAD FAILED
TO MAKE THE KIND OF DETERMINATION THAT SEC. 10(K) REQUIRES.  (FN13)
THE THIRD (FN14) AND SEVENTH (FN15) CIRCUITS HAVE CONSTRUED SEC. 10(K)
THE SAME WAY, WHILE THE FIFTH CIRCUIT (FN16) HAS AGREED WITH THE
BOARD'S NARROWER CONCEPTION OF ITS DUTIES.  BECAUSE OF THIS CONFLICT
AND THE IMPORTANCE OF THIS PROBLEM, WE GRANTED CERTIORARI.  (FN17) 

WE AGREE WITH THE SECOND, THIRD AND SEVENTH CIRCUITS THAT SEC. 10(K)
REQUIRES THE BOARD TO DECIDE JURISDICTIONAL DISPUTES ON THEIR MERITS
AND CONCLUDE THAT IN THIS CASE THAT REQUIREMENT MEANS THAT THE BOARD
SHOULD AFFIRMATIVELY HAVE DECIDED WHETHER THE TECHNICIANS OR THE STAGE
EMPLOYEES WERE ENTITLED TO THE DISPUTED WORK.  THE LANGUAGE OF SEC.
10(K), SUPPLEMENTING SEC. 8(B)(4)(D) AS IT DOES, SETS UP A METHOD
ADOPTED BY CONGRESS TO TRY TO GET JURISDICTIONAL DISPUTES SETTLED.  THE
WORDS "HEAR AND DETERMINE THE DISPUTE" CONVEY NOT ONLY THE IDEA OF
HEARING BUT ALSO THE IDEA OF DECIDING A CONTROVERSY.  AND THE CLAUSE
"THE DISPUTE OUT OF WHICH SUCH UNFAIR LABOR PRACTICE SHALL HAVE ARISEN"
CAN HAVE NO OTHER MEANING EXCEPT A JURISDICTIONAL DISPUTE UNDER SEC.
8(B)(4)(D) WHICH IS A DISPUTE BETWEEN TWO OR MORE GROUPS OF EMPLOYEES
OVER WHICH IS ENTITLED TO DO CERTAIN WORK FOR AN EMPLOYER.  TO
DETERMINE OR SETTLE THE DISPUTE AS BETWEEN THEM WOULD NORMALLY REQUIRE
A DECISION THAT ONE OR THE OTHER IS ENTITLED TO DO THE WORK IN
DISPUTE.  ANY DECISION SHORT OF THAT WOULD OBVIOUSLY NOT BE CONDUCIVE
TO QUIETING A QUARREL BETWEEN TWO GROUPS WHICH, HERE AS IN MOST
INSTANCES, IS OF SO LITTLE INTEREST TO THE EMPLOYER THAT HE SEEMS
PERFECTLY WILLING TO ASSIGN WORK TO EITHER IF THE OTHER WILL JUST LET
HIM ALONE.  THIS LANGUAGE ALSO INDICATES A CONGRESSIONAL PURPOSE TO
HAVE THE BOARD DO SOMETHING MORE THAN MERELY LOOK AT PRIOR BOARD ORDERS
AND CERTIFICATIONS OR A COLLECTIVE BARGAINING CONTRACT TO DETERMINE
WHETHER ONE OR THE OTHER UNION HAS A CLEARLY DEFINED STATUTORY OR
CONTRACTUAL RIGHT TO HAVE THE EMPLOYEES IT REPRESENTS PERFORM CERTAIN
WORK TASKS.  FOR, IN THE VAST MAJORITY OF CASES, SUCH A NARROW
DETERMINATION WOULD LEAVE THE BROADER PROBLEM OF WORK ASSIGNMENTS IN
THE HANDS OF THE EMPLOYER, EXACTLY WHERE IT WAS BEFORE THE ENACTMENT OF
SEC. 10(K) - WITH THE SAME OLD BASIC JURISDICTIONAL DISPUTE LIKELY
CONTINUING TO VEX HIM, AND THE RIVAL UNIONS, SHORT OF STRIKING, WOULD
STILL BE FREE TO ADOPT OTHER FORMS OF PRESSURE UPON THE EMPLOYER.  THE
SEC. 10(K) HEARING WOULD THEREFORE ACCOMPLISH LITTLE BUT A RESTORATION
OF THE PRE-EXISTING SITUATION, A SITUATION ALREADY FOUND INTOLERABLE BY
CONGRESS AND BY ALL PARTIES CONCERNED.  IF THIS NEWLY GRANTED BOARD
POWER TO HEAR AND DETERMINE JURISDICTIONAL DISPUTES HAD MEANT NO MORE
THAN THAT, CONGRESS CERTAINLY WOULD HAVE ACHIEVED VERY LITTLE TO SOLVE
THE KNOTTY PROBLEM OF WASTEFUL WORK STOPPAGES DUE TO SUCH DISPUTES. 

THIS CONCLUSION REACHED ON THE BASIS OF THE LANGUAGE OF SEC. 10(K)
AND SEC. 8(B)(4)(D) IS REINFORCED BY REFERENCE TO THE HISTORY OF THOSE
PROVISIONS.  PRIOR TO THE ENACTMENT OF THE TAFT-HARTLEY ACT, LABOR,
BUSINESS AND THE PUBLIC IN GENERAL HAD FOR A LONG TIME JOINED IN
HOPEFUL EFFORTS TO ESCAPE THE DISRUPTIVE CONSEQUENCES OF JURISDICTIONAL
DISPUTES AND RESULTING WORK STOPPAGES.  TO THIS END UNIONS HAD
ESTABLISHED UNION TRIBUNALS, EMPLOYERS HAD ESTABLISHED EMPLOYER
TRIBUNALS, AND BOTH HAD SET UP JOINT TRIBUNALS TO ARBITRATE SUCH
DISPUTES.  (FN18)  EACH OF THESE EFFORTS HAD HELPED SOME BUT NONE HAD
ACHIEVED COMPLETE SUCCESS.  THE RESULT WAS A CONTINUING AND WIDELY
EXPRESSED DISSATISFACTION WITH JURISDICTIONAL STRIKES.  AS ONE OF THE
FORERUNNERS TO THESE VERY PROVISIONS OF THE ACT, PRESIDENT TRUMAN TOLD
THE CONGRESS IN 1947 THAT DISPUTES "INVOLVING THE QUESTION OF WHICH
LABOR UNION IS ENTITLED TO PERFORM A PARTICULAR TASK" SHOULD BE
SETTLED, AND THAT IF THE "RIVAL UNIONS ARE UNABLE TO SETTLE SUCH
DISPUTES THEMSELVES, PROVISION MUST BE MADE FOR PEACEFUL AND BINDING
DETERMINATION OF THE ISSUES."  (FN19)  AND THE HOUSE COMMITTEE REPORT
ON ONE OF THE PROPOSALS OUT OF WHICH THESE SECTIONS CAME RECOGNIZED THE
NECESSITY OF ENACTING LEGISLATION TO PROTECT EMPLOYERS FROM BEING "THE
HELPLESS VICTIMS OF QUARRELS THAT DO NOT CONCERN THEM AT ALL."  (FN20) 

THE TAFT-HARTLEY ACT AS ORIGINALLY OFFERED CONTAINED ONLY A SECTION
MAKING JURISDICTIONAL STRIKES AN UNFAIR LABOR PRACTICE.  SECTION 10(K)
CAME INTO THE MEASURE AS THE RESULT OF AN AMENDMENT OFFERED BY SENATOR
MORSE WHICH, IN ITS ORIGINAL FORM, PROPOSED TO SUPPLEMENT THIS BLANKET
PROSCRIPTION BY EMPOWERING AND DIRECTING THE BOARD EITHER "TO HEAR AND
DETERMINE THE DISPUTE OUT OF WHICH SUCH UNFAIR LABOR PRACTICE SHALL
HAVE ARISEN OR TO APPOINT AN ARBITRATOR TO HEAR AND DETERMINE SUCH
DISPUTE  ...  ."  (FN21)  THAT THE PURPOSE OF THIS AMENDMENT WAS TO SET
UP MACHINERY BY WHICH THE UNDERLYING JURISDICTIONAL DISPUTE WOULD BE
SETTLED IS CLEAR AND, INDEED, EVEN THE BOARD CONCEDES THIS MUCH.  THE
AUTHORITY TO APPOINT AN ARBITRATOR PASSED THE SENATE (FN22) BUT WAS
ELIMINATED IN CONFERENCE, (FN23) LEAVING IT TO THE BOARD ALONE "TO HEAR
AND DETERMINE" THE UNDERLYING JURISDICTIONAL DISPUTE.  THE BOARD'S
POSITION IS THAT THIS CHANGE CAN BE INTERPRETED AS AN INDICATION THAT
CONGRESS DECIDED AGAINST PROVIDING FOR THE COMPULSORY DETERMINATION OF
JURISDICTIONAL DISPUTES.  WE FINE THIS ARGUMENT UNPERSUASIVE, TO SAY
THE VERY LEAST.  THE OBVIOUS EFFECT OF THIS CHANGE WAS SIMPLY TO PLACE
THE RESPONSIBILITY FOR COMPULSORY DETERMINATION OF THE DISPUTE ENTIRELY
ON THE BOARD, NOT TO ELIMINATE THE REQUIREMENT THAT THERE BE SUCH A
COMPULSORY DETERMINATION.  THE BOARD'S VIEW OF ITS POWERS THUS HAS NO
MORE SUPPORT IN THE HISTORY OF SEC. 10(K) THAN IT HAS IN THE LANGUAGE
OF THAT SECTION.  BOTH SHOW THAT THE SECTION WAS DESIGNED TO PROVIDE
PRECISELY WHAT THE BOARD HAS DISCLAIMED THE POWER TO PROVIDE - AN
EFFECTIVE COMPULSORY METHOD OF GETTING RID OF WHAT WERE DEEMED TO BE
THE BAD CONSEQUENCES OF JURISDICTIONAL DISPUTES. 

THE BOARD CONTENDS, HOWEVER, THAT THIS INTERPRETATION OF SEC. 10(K)
SHOULD BE REJECTED, DESPITE THE LANGUAGE AND HISTORY OF THAT SECTION. 
IN SUPPORT OF THIS CONTENTION, IT FIRST POINTS OUT THAT SEC. 10(K) SETS
FORTH NO STANDARDS TO GUIDE IT IN DETERMINING JURISDICTIONAL DISPUTES
ON THEIR MERITS.  FROM THIS FACT, THE BOARD ARGUES THAT SEC. 8(B)(4)(D)
MAKES THE EMPLOYER'S ASSIGNMENT DECISIVE UNLESS HE IS AT THE TIME
ACTING IN VIOLATION OF A BOARD ORDER OR CERTIFICATION AND THAT THE
PROPER INTERPRETATION OF SEC. 10(K) MUST TAKE ACCOUNT OF THIS RIGHT OF
THE EMPLOYER.  IT IS TRUE, OF COURSE, THAT EMPLOYERS NORMALLY SELECT
AND ASSIGN THEIR OWN INDIVIDUAL EMPLOYEES ACCORDING TO THEIR BEST
JUDGMENT.  BUT HERE, AS IN MOST SITUATIONS WHERE JURISDICTIONAL STRIKES
OCCUR, THE EMPLOYER HAS CONTRACTED WITH TWO UNIONS, BOTH OF WHICH
REPRESENT EMPLOYEES CAPABLE OF DOING THE PARTICULAR TASKS INVOLVED. 
THE RESULT IS THAT THE EMPLOYER HAS BEEN PLACED IN A SITUATION WHERE HE
FINDS IT IMPOSSIBLE TO SECURE THE BENEFITS OF STABILITY FROM EITHER OF
THESE CONTRACTS, NOT BECAUSE HE REFUSES TO SATISFY THE UNIONS, BUT
BECAUSE THE SITUATION IS SUCH THAT HE CANNOT SATISFY THEM.  THUS, IT IS
THE EMPLOYER HERE, PROBABLY MORE THAN ANYONE ELSE, WHO HAS BEEN AND
WILL BE DAMAGED BY A FAILURE OF THE BOARD TO MAKE THE BINDING DECISION
THAT THE EMPLOYER HAS NOT BEEN ABLE TO MAKE.  WE THEREFORE ARE NOT
IMPRESSED BY THE BOARD'S SOLICITUDE FOR THE EMPLOYER'S RIGHT TO DO THAT
WHICH HE HAS NOT BEEN, AND MOST LIKELY WILL NOT BE, ABLE TO DO.  IT IS
TRUE THAT THIS FORCES THE BOARD TO EXERCISE UNDER SEC. 10(K) POWERS
WHICH ARE BROAD AND LACKING IN RIGID STANDARDS TO GOVERN THEIR
APPLICATION.  BUT ADMINISTRATIVE AGENCIES ARE FREQUENTLY GIVEN RATHER
LOOSELY DEFINED POWERS TO COPE WITH PROBLEMS AS DIFFICULT AS THOSE
POSED BY JURISDICTIONAL DISPUTES AND STRIKES.  IT MIGHT HAVE BEEN
BETTER, AS SOME PERSUASIVELY ARGUED IN CONGRESS, TO INTRUST THIS MATTER
TO ARBITRATORS.  BUT CONGRESS, AFTER DISCUSSION AND CONSIDERATION,
DECIDED TO INTRUST THIS DECISION TO THE BOARD.  IT HAS HAD LONG
EXPERIENCE IN HEARING AND DISPOSING OF SIMILAR LABOR PROBLEMS.  WITH
THIS EXPERIENCE AND A KNOWLEDGE OF THE STANDARDS GENERALLY USED BY
ARBITRATORS, UNIONS, EMPLOYERS, JOINT BOARDS AND OTHERS IN WRESTLING
WITH THIS PROBLEM, WE ARE CONFIDENT THAT THE BOARD NEED NOT DISCLAIM
THE POWER GIVEN IT FOR LACK OF STANDARDS.  EXPERIENCE AND COMMON SENSE
WILL SUPPLY THE GROUNDS FOR THE PERFORMANCE OF THIS JOB WHICH CONGRESS
HAS ASSIGNED THE BOARD. 

THE BOARD ALSO CONTENDS THAT RESPONDENT'S INTERPRETATION OF SEC.
10(K) SHOULD BE AVOIDED BECAUSE THAT INTERPRETATION COMPLETELY VITIATES
THE PURPOSE OF CONGRESS TO ENCOURAGE THE PRIVATE SETTLEMENT OF
JURISDICTIONAL DISPUTES.  THIS CONTENTION PROCEEDS ON THE ASSUMPTION
THAT THE PARTIES TO A DISPUTE WILL HAVE NO INCENTIVE TO REACH A PRIVATE
SETTLEMENT IF THEY ARE PERMITTED TO ADHERE TO THEIR RESPECTIVE VIEWS
UNTIL THE MATTER IS BROUGHT BEFORE THE BOARD AND THEN GIVEN THE SAME
OPPORTUNITY TO PREVAIL WHICH THEY WOULD HAVE HAD IN A PRIVATE
SETTLEMENT.  RESPONDENT DISAGREES WITH THIS CONTENTION AND ATTACKS THE
BOARD'S ASSUMPTION.  WE FIND IT UNNECESSARY TO RESOLVE THIS CONTROVERSY
FOR IT TURNS UPON THE SORT OF POLICY DETERMINATION THAT MUST BE
REGARDED AS IMPLICITLY SETTLED BY CONGRESS WHEN IT CHOSE TO ENACT SEC.
10(K).  EVEN IF CONGRESS HAS CHOSEN THE WRONG WAY TO ACCOMPLISH ITS
AIM, THAT CHOICE IS BINDING BOTH UPON THE BOARD AND UPON THIS COURT. 

THE BOARD'S NEXT CONTENTION IS THAT RESPONDENT'S INTERPRETATION OF
SEC. 10(K) SHOULD BE REJECTED BECAUSE IT IS INCONSISTENT WITH OTHER
PROVISIONS OF THE TAFT-HARTLEY ACT.  THE FIRST SUCH INCONSISTENCY URGED
IS WITH SECS. 8(A)(3) AND 8(B)(2) (FN24) OF THE ACT ON THE GROUND THAT
THE DETERMINATION OF JURISDICTIONAL DISPUTES ON THEIR MERITS BY THE
BOARD MIGHT SOMEHOW ENABLE UNIONS TO COMPEL EMPLOYERS TO DISCRIMINATE
IN REGARD TO EMPLOYMENT IN ORDER TO ENCOURAGE UNION MEMBERSHIP.  THE
ARGUMENT HERE, WHICH IS BASED UPON THE FACT THAT SEC. 10(K), LIKE SEC.
8(B)(4)(D), EXTENDS TO JURISDICTIONAL DISPUTES BETWEEN UNIONS AND
UNORGANIZED GROUPS AS WELL AS TO DISPUTES BETWEEN TWO OR MORE UNIONS,
APPEARS TO BE THAT GROUPS REPRESENTED BY UNIONS WOULD ALMOST ALWAYS
PREVAIL OVER NONUNION GROUPS IN SUCH A DETERMINATION BECAUSE THEIR
CLAIM TO THE WORK WOULD PROBABLY HAVE MORE BASIS IN CUSTOM AND
TRADITION THAN THAT OF UNORGANIZED GROUPS.  NO SUCH DANGER IS PRESENT
HERE, HOWEVER, FOR BOTH GROUPS OF EMPLOYEES ARE REPRESENTED BY UNIONS. 
MOREOVER, WE FEEL ENTIRELY CONFIDENT THAT THE BOARD, WITH ITS MANY
YEARS OF EXPERIENCE IN GUARDING AGAINST AND REDRESSING VIOLATIONS OF
SECS 8(A)(3) AND 8(B)(2), WILL DEVISE MEANS OF DISCHARGING ITS DUTIES
UNDER SEC. 10(K) IN A MANNER ENTIRELY HARMONIOUS WITH THOSE SECTIONS. 
A SECOND INCONSISTENCY IS URGED WITH SEC. 303(A)(4) OF THE TAFT-HARTLEY
ACT, (FN25) WHICH AUTHORIZES SUITS FOR DAMAGES SUFFERED BECAUSE OF
JURISDICTIONAL STRIKES.  THE ARGUMENT HERE IS THAT SINCE SEC. 303(A)(4)
DOES NOT PERMIT A UNION TO ESTABLISH, AS A DEFENSE TO AN ACTION FOR
DAMAGES UNDER THAT SECTION, THAT IT IS ENTITLED TO THE WORK STRUCK FOR
ON THE BASIS OF SUCH FACTORS AS PRACTICE OR CUSTOM, A SIMILAR RESULT IS
REQUIRED HERE IN ORDER TO PRESERVE "THE SUBSTANTIVE SYMMETRY" BETWEEN
SEC. 303(A)(4) ON THE ONE HAND AND SECS. 8(B)(4)(D) AND 10(K) ON THE
OTHER.  THIS ARGUMENT IGNORES THE FACT THAT THIS COURT HAS RECOGNIZED
THE SEPARATE AND DISTINCT NATURE OF THESE TWO APPROACHES TO THE PROBLEM
OF HANDLING JURISDICTIONAL STRIKES.  (FN26)  SINCE WE DO NOT REQUIRE A
"SUBSTANTIVE SYMMETRY" BETWEEN THE TWO, WE NEED NOT AND DO NOT DECIDE
WHAT EFFECT A DECISION OF THE BOARD UNDER SEC. 10(K) MIGHT HAVE ON
ACTIONS UNDER SEC. 303(A)(4). 

THE BOARD'S FINAL CONTENTION IS THAT SINCE ITS CONSTRUCTION OF SEC.
10(K) WAS ADOPTED SHORTLY AFTER THE SECTION WAS ADDED TO THE ACT AND
HAS BEEN CONSISTENTLY ADHERED TO SINCE, THAT CONSTRUCTION HAS ITSELF
BECOME A PART OF THE STATUTE BY REASON OF CONGRESSIONAL ACQUIESCENCE. 
IN SUPPORT OF THIS CONTENTION, THE BOARD POINTS OUT THAT CONGRESS HAS
LONG BEEN AWARE OF ITS CONSTRUCTION AND YET HAS NOT SEEN FIT TO ADOPT
PROPOSED AMENDMENTS WHICH WOULD HAVE CHANGED IT.  IN THE ORDINARY CASE,
THIS ARGUMENT MIGHT HAVE SOME WEIGHT.  BUT AN ADMINISTRATIVE
CONSTRUCTION ADHERED TO IN THE FACE OF CONSISTENT REJECTION BY COURTS
OF APPEALS IS NOT SUCH AN ORDINARY CASE.  MOREOVER, THE BOARD HAD A
REGULATION ON THIS SUBJECT FROM 1947 TO 1958 WHICH THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT THOUGHT, WITH SOME REASON, WAS WHOLLY
INCONSISTENT WITH THE BOARD'S PRESENT INTERPRETATION.  (FN27) WITH ALL
THIS UNCERTAINTY SURROUNDING THE EVENTUAL AUTHORITATIVE INTERPRETATION
OF THE EXISTING LAW, THE FAILURE OF CONGRESS TO ENACT A NEW LAW SIMPLY
WILL NOT SUPPORT THE INFERENCE WHICH THE BOARD ASKS US TO MAKE. 

WE CONCLUDE THEREFORE THAT THE BOARD'S INTERPRETATION OF ITS DUTY
UNDER SEC. 10(K) IS WRONG AND THAT UNDER THAT SECTION IT IS THE BOARD'S
RESPONSIBILITY AND DUTY TO DECIDE WHICH OF TWO OR MORE EMPLOYEE GROUPS
CLAIMING THE RIGHT TO PERFORM CERTAIN WORK TASKS IS RIGHT AND THEN
SPECIFICALLY TO AWARD SUCH TASKS IN ACCORDANCE WITH ITS DECISION. 
HAVING FAILED TO MEET THAT RESPONSIBILITY IN THIS CASE, THE BOARD COULD
NOT PROPERLY PROCEED UNDER SEC. 10(C) TO ADJUDICATE THE UNFAIR LABOR
PRACTICE CHARGE.  THE COURT OF APPEALS WAS THEREFORE CORRECT IN
REFUSING TO ENFORCE THE ORDER WHICH RESULTED FROM THAT PROCEEDING. 
AFFIRMED. 

FN1  RADIO & TELEVISION BROADCAST ENGINEERS UNION, LOCAL 1212,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO. 

FN2  THEATRICAL PROTECTIVE UNION NO. 1, INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE
UNITED STATES AND CANADA, AFL-CIO. 

FN3  THE OTHER MAJOR TELEVISION BROADCASTING COMPANIES HAVE ALSO BEEN
FORCED TO CONTEND WITH THIS SAME PROBLEM.  THE RECORD SHOWS THAT THERE
HAS BEEN JOINT BARGAINING ON THIS POINT BETWEEN COLUMBIA, NATIONAL AND
AMERICAN BROADCASTING SYSTEMS ON THE ONE HAND AND THE UNIONS ON THE
OTHER.  ALL THE COMPANIES REFUSED TO ALLOCATE THE WORK TO EITHER UNION
BECAUSE THE UNIONS DID NOT AGREE AMONG THEMSELVES.  COLUMBIA'S VICE
PRESIDENT IN CHARGE OF LABOR RELATIONS EXPLAINED THE SITUATION IN THESE
TERMS:  "ALL THREE COMPANIES NEGOTIATING JOINTLY HERE TOOK THE POSITION
THAT THEY COULD NOT DO THIS.   THEY COULD NOT GIVE EXCLUSIVE
JURISDICTION BECAUSE EACH OF THEM HAD A CONFLICTING CLAIM FROM ANOTHER
UNION."  SEE ALSO NATIONAL ASSOCIATION OF BROADCAST ENGINEERS, 105
N.L.R.B. 355. 

FN4  THIS PHRASE WAS USED BY THE HEARING EXAMINER TO DESCRIBE THE
POSITION OF COLUMBIA AS EXPLAINED BY ITS VICE PRESIDENT IN CHARGE OF
LABOR RELATIONS. 

FN5  SEE THEATRICAL PROTECTIVE UNION NO. 1, INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES, 124 N.L.R.B. 249, FOR A REPORT OF A RECENT
JURISDICTIONAL STRIKE AGAINST COLUMBIA BY THE SAME STAGE EMPLOYEES'
UNION INVOLVED HERE WHICH RESULTED FROM AN ASSIGNMENT OF REMOTE
LIGHTING WORK FAVORABLE TO THE TECHNICIANS. 

FN6  RESPONDENT, FOR THE PURPOSES OF THIS PROCEEDING ONLY, CONCEDES
THE CORRECTNESS OF A BOARD FINDING TO THIS EFFECT. 

FN7  29 U.S.C. SEC. 158(B)(4)(D). 

FN8  SECTION 8(B).  "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION OR ITS AGENTS: 

     *         *         *         *         * 

"(4)  ...  TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY EMPLOYER TO
ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL  ...  TO PERFORM ANY
SERVICES, WHERE AN OBJECT THEREOF IS:  ...  (D) FORCING OR REQUIRING
ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO EMPLOYEES IN A PARTICULAR
LABOR ORGANIZATION OR IN A PARTICULAR TRADE, CRAFT, OR CLASS RATHER
THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION OR IN ANOTHER TRADE,
CRAFT, OR CLASS, UNLESS SUCH EMPLOYER IS FAILING TO CONFORM TO AN ORDER
OR CERTIFICATION OF THE BOARD DETERMINING THE BARGAINING REPRESENTATIVE
FOR EMPLOYEES PERFORMING SUCH WORK:  ...  ." 

FN9  29 U.S.C. SEC. 160(C). 

FN10  29 U.S.C. SEC. 160(K). 

FN11  "WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN AN
UNFAIR LABOR PRACTICE WITHIN THE MEANING OF PARAGRAPH (4)(D) OF SECTION
8(B), THE BOARD IS EMPOWERED AND DIRECTED TO HEAR AND DETERMINE THE
DISPUTE OUT OF WHICH SUCH UNFAIR LABOR PRACTICE SHALL HAVE ARISEN,
UNLESS  ... THE PARTIES TO SUCH DISPUTE SUBMIT TO THE BOARD
SATISFACTORY EVIDENCE THAT THEY HAVE ADJUSTED, OR AGREED UPON METHODS
FOR THE VOLUNTARY ADJUSTMENT OF, THE DISPUTE.  UPON COMPLIANCE BY THE
PARTIES TO THE DISPUTE WITH THE DECISION OF THE BOARD OR UPON SUCH
VOLUNTARY ADJUSTMENT OF THE DISPUTE, SUCH CHARGE SHALL BE DISMISSED." 

FN12  THIS LATTER CONSIDERATION WAS MADE NECESSARY BECAUSE THE BOARD
HAS ADOPTED THE POSITION THAT JURISDICTIONAL STRIKES IN SUPPORT OF
CONTRACT RIGHTS DO NOT CONSTITUTE VIOLATIONS OF SEC. 8(B)(4)(D) DESPITE
THE FACT THAT THE LANGUAGE OF THAT SECTION CONTAINS NO PROVISION FOR
SPECIAL TREATMENT OF SUCH STRIKES.  SEE LOCAL 26, INTERNATIONAL FUR
WORKERS, 90 N.L.R.B.  1379.  THE BOARD HAS EXPLAINED THIS POSITION AS
RESTING UPON THE PRINCIPLE THAT "TO FAIL TO HOLD AS CONTROLLING  ...
THE CONTRACTUAL PREEMPTION OF THE WORK IN DISPUTE WOULD BE TO ENCOURAGE
DISREGARD FOR OBSERVANCE OF BINDING OBLIGATIONS UNDER COLLECTIVE
BARGAINING AGREEMENTS AND INVITE THE VERY JURISDICTIONAL DISPUTES
BROADCAST ENGINEERS, SUPRA, N. 3, AT 364. 

FN13  272 F.2D 713. 

FN14  N.L.R.B. V. UNITED ASSOCIATION OF JOURNEYMEN, 242 F.2D 722. 

FN15  N.L.R.B. V. UNITED BROTHERHOOD OF CARPENTERS, 261 F.2D 166. 

FN16  N.L.R.B. V. LOCAL 450, INTERNATIONAL UNION OF OPERATING
ENGINEERS, 275 F.2D 413. 

FN17  363 U.S. 802. 

FN18  FOR A REVIEW AND CRITICISM OF SOME OF THESE EFFORTS, SEE
DUNLOP, JURISDICTIONAL DISPUTES, N.Y.U. 2D ANN. CONFERENCE ON LABOR
477, AT 494-504. 

FN19  93 CONG. REC. 136. 

FN20  H.R. REP. NO. 245, 80TH CONG., 1ST SESS., P. 23, I LEGISLATIVE
HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, AT 314
(HEREINAFTER CITED AS LEG.  HIS.). 

FN21  THE AMENDMENT WAS CONTAINED IN A BILL (S. 858) OFFERED BY
SENATOR MORSE, WHICH ALSO CONTAINED A NUMBER OF OTHER PROPOSALS.  93
CONG. REC. 1913, II LEG.  HIST.  987. 

FN22  I LEG.  HIST.  241, 258-259.  SEE ALSO THE SENATE COMMITTEE
REPORT ON THE BILL, S. REP. NO. 105, 80TH CONG., 1ST SESS., P. 8, I
LEG.  HIST.  414. 

FN23  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., P. 57, I LEG. 
HIST.  561. 

FN24  29 U.S.C. SECS. 158(A)(3) AND 158(B)(2). 

FN25  29 U.S.C. SEC. 187(A)(4). 

FN26  INTERNATIONAL LONGSHOREMEN'S UNION V. JUNEAU SPRUCE CORP., 342
U.S. 237. 

FN27  SEE N.L.R.B. V. UNITED BROTHERHOOD OF CARPENTERS, SUPRA, AT 170
172.  THE RULES AND REGULATIONS ADOPTED IN 1947 BY THE BOARD PROVIDED
THAT IN SEC. 10(K) PROCEEDINGS THE BOARD WAS "TO CERTIFY THE LABOR
ORGANIZATION OR THE PARTICULAR TRADE, CRAFT, OR CLASS OF EMPLOYEES, AS
THE CASE MAY BE, WHICH SHALL PERFORM THE PARTICULAR WORK TASKS IN
ISSUE, OR TO MAKE OTHER DISPOSITION OF THE MATTER."  29 CFR, 1957
SUPP., SEC. 102.73.  THIS RULE REMAINED IN EFFECT UNTIL 1958. 
..END :













CALLANAN V. UNITED STATES 364 U.S. 587 


NO. 47.  ARGUED NOVEMBER 15-16, 1960 - DECIDED JANUARY 9, 1961 - 274
F.2D 601, AFFIRMED. 


PETITIONER WAS CONVICTED UNDER THE HOBBS ANTI-RACKETEERING ACT, 18
U.S.C. SEC. 1951, ON TWO COUNTS, FOR OBSTRUCTING INTERSTATE COMMERCE BY
EXTORTION AND FOR CONSPIRING TO DO SO.  HE WAS SENTENCED TO CONSECUTIVE
TERMS OF 12 YEARS ON EACH COUNT, THOUGH THE SENTENCE ON ONE COUNT WAS
SUSPENDED AND REPLACED WITH A FIVE-YEAR PROBATION TO COMMENCE AT THE
EXPIRATION OF THE SENTENCE ON THE OTHER COUNT.  HE SOUGHT A CORRECTION
OF THE SENTENCE UNDER RULE 35 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, CLAIMING THAT THE MAXIMUM PENALTY UNDER THE ACT FOR
OBSTRUCTING INTERSTATE COMMERCE BY ANY MEANS IS 20 YEARS AND THAT
CONGRESS DID NOT INTEND TO SUBJECT INDIVIDUALS TO TWO PENALTIES.  HELD:
UNDER THE ACT, OBSTRUCTING INTERSTATE COMMERCE BY EXTORTION AND
CONSPIRING TO DO SO ARE SEPARATE OFFENSES; SEPARATE CONSECUTIVE
SENTENCES MAY BE IMPOSED FOR EACH OFFENSE.  PP. 587-597. 

CALLANAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED BY A JURY IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF MISSOURI ON TWO COUNTS.  COUNT I
CHARGED A CONSPIRACY TO OBSTRUCT COMMERCE BY EXTORTING MONEY, AND COUNT
II CHARGED THE SUBSTANTIVE OFFENSE OF OBSTRUCTING COMMERCE BY
EXTORTION, BOTH CRIMES MADE PUNISHABLE BY THE HOBBS ANTI-RACKETEERING
ACT, 18 U.S.C. SEC.  1951.  (FN1)  PETITIONER WAS SENTENCED TO
CONSECUTIVE TERMS OF TWELVE YEARS ON EACH COUNT, BUT THE SENTENCE ON
COUNT II WAS SUSPENDED AND REPLACED WITH A FIVE-YEAR PROBATION TO
COMMENCE AT THE EXPIRATION OF HIS SENTENCE UNDER COUNT I. (FN2)  ON
APPEAL, THE CONVICTION WAS AFFIRMED, 223 F.2D 171. 

PETITIONER THEREAFTER SOUGHT A CORRECTION OF HIS SENTENCE, INVOKING
RULE 35 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE AS WELL AS 28 U.S.C.
SEC. 2255.  (FN3)  HE CLAIMED THAT THE MAXIMUM PENALTY FOR OBSTRUCTING
INTERSTATE COMMERCE UNDER THE ACT BY ANY MEANS IS TWENTY YEARS AND THAT
CONGRESS DID NOT INTEND TO SUBJECT INDIVIDUALS TO TWO PENALTIES.  THE
DISTRICT COURT DENIED RELIEF, HOLDING THAT THE HOBBS ACT GAVE NO
INDICATION OF A DEPARTURE FROM THE USUAL RULE THAT A CONSPIRACY AND THE
SUBSTANTIVE CRIME WHICH WAS ITS OBJECT MAY BE CUMULATIVELY PUNISHED. 
173 F. SUPP. 98.  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED
THIS JUDGMENT, 274 F.2D 601.  DEEMING THE QUESTION RAISED BY PETITIONER
OF SUFFICIENT IMPORTANCE, WE BROUGHT THE CASE HERE.  362 U.S. 939. 

UNDER THE EARLY COMMON LAW, A CONSPIRACY - WHICH CONSTITUTED A
MISDEMEANOR - WAS SAID TO MERGE WITH THE COMPLETED FELONY WHICH WAS ITS
OBJECT.  SEE COMMONWEALTH V. KINGSBURY, 5 MASS. 106.  THIS RULE,
HOWEVER, WAS BASED UPON SIGNIFICANT PROCEDURAL DISTINCTIONS BETWEEN
MISDEMEANORS AND FELONIES.   THE DEFENDANT IN A MISDEMEANOR TRIAL WAS
ENTITLED TO COUNSEL AND A COPY OF THE INDICTMENT; THESE ADVANTAGES WERE
UNAVAILABLE ON TRIAL FOR A FELONY.  KING V. WESTBEER, 1 LEACH 12, 15,
168 ENG. REP. 108, 110 (1739); SEE CLARK AND MARSHALL, CRIMES, SEC.
2.03, N. 96 (6TH ED.).  THEREFORE NO CONVICTION WAS PERMITTED OF A
CONSTITUENT MISDEMEANOR UPON AN INDICTMENT FOR THE FELONY.  WHEN THE
SUBSTANTIVE CRIME WAS ALSO A MISDEMEANOR, PEOPLE V. MATHER, 4 WEND. 
229, 265 (N.Y.), OR WHEN THE CONSPIRACY WAS DEFINED BY STATUTE AS A
FELONY, STATE V. MAYBERRY, 48 ME. 218, 238, MERGER DID NOT OBTAIN.  AS
THESE COMMON-LAW PROCEDURAL NICETIES DISAPPEARED, THE MERGER CONCEPT
LOST SIGNIFICANCE, AND TODAY IT HAS BEEN ABANDONED.  QUEEN V. BUTTON,
11 Q.B. 929, 116 ENG. REP. 720; PINKERTON V. UNITED STATES, 328 U.S.
640. 

PETITIONER DOES NOT DRAW ON THIS ARCHAIC LAW OF MERGER.  HE ARGUES
THAT CONGRESS BY COMBINING THE CONSPIRACY AND THE SUBSTANTIVE OFFENSE
IN ONE PROVISION, SEC. 1951, MANIFESTED AN INTENT NOT TO PUNISH
COMMISSION OF TWO OFFENSES CUMULATIVELY.  UNLIKE THE MERGER DOCTRINE,
PETITIONER'S POSITION DOES NOT QUESTION THAT THE GOVERNMENT COULD
CHARGE A CONSPIRACY EVEN WHEN THE SUBSTANTIVE CRIME THAT WAS ITS OBJECT
HAD BEEN COMPLETED.  HIS CONCERN IS WITH THE PUNITIVE CONSEQUENCES OF
THE CHOICE THUS OPEN TO THE GOVERNMENT; IT CAN INDICT FOR BOTH OR
EITHER OFFENSE, BUT, PETITIONER CONTENDS, IT CAN PUNISH ONLY FOR ONE. 

THE PRESENT HOBBS ACT HAD AS ITS ANTECEDENT THE ANTI-RACKETEERING ACT
OF 1934.  (FN4)  IN VIEW OF THIS COURT'S RESTRICTIVE DECISION IN UNITED
STATES V. LOCAL 807, 315 U.S. 521 (1942), CONGRESS, UNDER THE
LEADERSHIP OF REPRESENTATIVE HOBBS, SOUGHT TO STIFFEN THE 1934
LEGISLATION.  AFTER SEVERAL UNSUCCESSFUL ATTEMPTS OVER A PERIOD OF FOUR
YEARS, A BILL WAS PASSED IN 1946 WHICH DELETED ANY REFERENCE TO WAGES
PAID BY AN EMPLOYER TO AN EMPLOYEE, ON WHICH THE DECISION IN LOCAL 807
HAD RELIED.  (FN5)  THE 1934 ACT WAS FURTHER INVIGORATED BY INCREASING
THE MAXIMUM PENALTY FROM TEN TO TWENTY YEARS. 

PETITIONER RELIES ON NUMEROUS STATEMENTS BY MEMBERS OF CONGRESS
CONCERNING THE SEVERITY OF THE TWENTY-YEAR PENALTY TO ILLUSTRATE THAT
CUMULATIVE SENTENCES WERE NOT CONTEMPLATED.  (FN6)  BUT THE LEGISLATIVE
HISTORY SHEDS NO LIGHT WHATEVER ON WHETHER THE CONGRESSMEN WERE
DISCUSSING THE QUESTION OF POTENTIAL SENTENCES UNDER THE WHOLE BILL OR
MERELY DEFENDING THE MAXIMUM PUNISHMENT UNDER ITS SPECIFIC SECTIONS. 
ALL THE LEGISLATIVE TALK ONLY REITERATES WHAT THE STATUTE ITSELF SAYS -
THAT THE MAXIMUM PENALTY IS TWENTY YEARS. 

THE DISTINCTIVENESS BETWEEN A SUBSTANTIVE OFFENSE AND A CONSPIRACY TO
COMMIT IS A POSTULATE OF OUR LAW.  "IT HAS BEEN LONG AND CONSISTENTLY
RECOGNIZED BY THE COURT THAT THE COMMISSION OF THE SUBSTANTIVE OFFENSE
AND A CONSPIRACY TO COMMIT IT ARE SEPARATE AND DISTINCT OFFENSES." 
PINKERTON V. UNITED STATES, 328 U.S. 640, 643.  SEE ALSO PEREIRA V.
UNITED STATES, 347 U.S. 1, 11.  OVER THE YEARS, THIS DISTINCTION HAS
BEEN APPLIED IN VARIOUS SITUATIONS.  FOR EXAMPLE, IN CLUNE V. UNITED
STATES, 159 U.S. 590, THE COURT UPHELD A TWO-YEAR SENTENCE FOR
CONSPIRACY OVER THE OBJECTION THAT THE CRIME WHICH WAS THE OBJECT OF
THE UNLAWFUL AGREEMENT COULD ONLY BE PUNISHED BY A $100 FINE.  THE SAME
RESULT WAS REACHED WHEN, AS IN THE PRESENT CASE, BOTH OFFENSES WERE
DESCRIBED WITHIN THE SAME STATUTE.  IN CARTER V. MCCLAUGHRY, 183 U.S.
365, CUMULATIVE SENTENCES FOR CONSPIRACY TO DEFRAUD AND FRAUD WERE
UPHELD.  "CUMULATIVE SENTENCES," THE COURT PRONOUNCED, "ARE NOT
CUMULATIVE PUNISHMENTS, AND A SINGLE SENTENCE FOR SEVERAL OFFENCES, IN
EXCESS OF THAT PRESCRIBED FOR ONE OFFENCE, MAY BE AUTHORIZED BY
STATUTE."  183 U.S., AT 394. 

THIS SETTLED PRINCIPLE DERIVES FROM THE REASON OF THINGS IN DEALING
WITH SOCIALLY REPREHENSIBLE CONDUCT:  COLLECTIVE CRIMINAL AGREEMENT -
PARTNERSHIP IN CRIME - PRESENTS A GREATER POTENTIAL THREAT TO THE
PUBLIC THAN INDIVIDUAL DELICTS.  CONCERTED ACTION BOTH INCREASES THE
LIKELIHOOD THAT THE CRIMINAL OBJECT WILL BE SUCCESSFULLY ATTAINED AND
DECREASES THE PROBABILITY THAT THE INDIVIDUALS INVOLVED WILL DEPART
FROM THEIR PATH OF CRIMINALITY.  GROUP ASSOCIATION FOR CRIMINAL
PURPOSES OFTEN, IF NOT NORMALLY, MAKES POSSIBLE THE ATTAINMENT OF ENDS
MORE COMPLEX THAN THOSE WHICH ONE CRIMINAL COULD ACCOMPLISH.  NOR IS
THE DANGER OF A CONSPIRATORIAL GROUP LIMITED TO THE PARTICULAR END
TOWARD WHICH IT HAS EMBARKED.  COMBINATION IN CRIME MAKES MORE LIKELY
THE COMMISSION OF CRIMES UNRELATED TO THE ORIGINAL PURPOSE FOR WHICH
THE GROUP WAS FORMED.  IN SUM, THE DANGER WHICH A CONSPIRACY GENERATES
IS NOT CONFINED TO THE SUBSTANTIVE OFFENSE WHICH IS THE IMMEDIATE AIM
OF THE ENTERPRISE.  (FN7) 

THESE CONSIDERATIONS ARE THE PRESUPPOSITIONS OF THE SEPARATELY
DEFINED CRIMES IN SEC. 1951.  THE PUNITIVE CONSEQUENCES THAT PRESUMABLY
FLOW FROM THEM MUST BE PLACED IN SUCH CONTEXT.  CONGRESS IS, AFTER ALL,
NOT A BODY OF LAYMEN UNFAMILIAR WITH THE COMMONPLACES OF OUR LAW.  THIS
LEGISLATION WAS THE FORMULATION OF THE TWO JUDICIARY COMMITTEES, ALL OF
WHOM ARE LAWYERS, AND THE CONGRESS IS PREDOMINATELY A LAWYERS' BODY. 
WE ATTRIBUTE "TO CONGRESS A TACIT PURPOSE - IN THE ABSENCE OF ANY
INCONSISTENT EXPRESSION - TO MAINTAIN A LONG-ESTABLISHED DISTINCTION
BETWEEN OFFENSES ESSENTIALLY DIFFERENT; A DISTINCTION WHOSE PRACTICAL
IMPORTANCE IN THE CRIMINAL LAW IS NOT EASILY OVERESTIMATED."  UNITED
STATES V. RABINOWICH, 238 U.S. 78, 88. 

THESE CONSIDERATIONS ARE REINFORCED BY A PRIOR INTERPRETATION OF THE
SHERMAN ACT WHOSE MINOR PENALTIES INFLUENCED THE ENACTMENT OF THE 1934
ANTI-RACKETEERING LEGISLATIONS.  (FN8) IN AMERICAN TOBACCO CO. V.
UNITED STATES, 328 U.S. 781, INDIVIDUAL AND CORPORATE DEFENDANTS WERE
CONVICTED, INTER ALIA, OF CONSPIRACY TO MONOPOLIZE AND MONOPOLIZATION,
BOTH MADE CRIMINAL BY SEC. 2.  THEY WERE SENTENCED TO A FINE OF $5,000,
THE MAXIMUM STATUTORY PENALTY, ON EACH OF THE COUNTS.  WE AFFIRMED
THESE CONVICTIONS ON THE BASIS OF OUR PAST DECISIONS IN THIS FIELD OF
LAW.  328 U.S., AT 788-789.  TO DISLODGE SUCH CONVENTIONAL CONSEQUENCES
IN THE OUTLAWING OF TWO DISPARATE OFFENSES, CONSPIRACY AND SUBSTANTIVE
CONDUCT, AND EFFECTUATE A REVERSAL OF THE SETTLED INTERPRETATION WE
PRONOUNCED IN AMERICAN TOBACCO WOULD REQUIRE SPECIFIC LANGUAGE TO THE
CONTRARY.  SEE ALSO ALBRECHT V. UNITED STATES, 273 U.S. 1, 11; BURTON
V. UNITED STATES, 202 U.S. 344, 377. 

PETITIONER ARGUES THAT SOME OF THE OTHER PROVISIONS OF SEC. 1951 SEEM
TO OVERLAP AND WOULD NOT JUSTIFY CUMULATIVE PUNISHMENT FOR SEPARATE
CRIMES.  FROM THIS HE DEDUCES A CONGRESSIONAL INTENT THAT THE STATUTE
ALLOWS PUNISHMENT FOR ONLY ONE CRIME NO MATTER HOW MANY SEPARATELY
OUTLAWED OFFENSES HAVE BEEN COMMITTED.  THESE CONTENTIONS RAISE
PROBLEMS OF STATUTORY INTERPRETATION NOT NOW HERE.  THAT SOME OF THE
SUBSTANTIVE SECTIONS MAY BE REPETITIVE AS BEING VARIANTS IN PHRASING OF
THE SAME DELICT, OR THAT PETITIONER COULD NOT BE CUMULATIVELY PUNISHED
FOR BOTH AN ATTEMPT TO EXTORT AND A COMPLETED ACT OF EXTORTION, HAS NO
RELEVANCE TO THE LEGAL CONSEQUENCES OF TWO INCONTESTABLY DISTINCTIVE
OFFENSES, CONSPIRACY AND THE COMPLETED CRIME THAT IS ITS OBJECT.  IN
THE AMERICAN TOBACCO LITIGATION IT WAS DECIDED THAT THE ATTEMPT TO
MONOPOLIZE, DESCRIBED IN SEC. 2 OF THE SHERMAN ACT, MERGED WITH THE
COMPLETED MONOPOLIZATION, BUT THIS RESULT DID NOT QUALIFY THE HOLDING
THAT CUMULATIVE SENTENCES FOR THE CONSPIRACY AND THE SUBSTANTIVE CRIME,
ALSO CONTAINED WITHIN SEC. 2, WERE DEMANDED BY THE GOVERNING PRECEPTS
OF OUR LAW. 

PETITIONER INVOKES "THE RULE OF LENITY" FOR DECISION IN THIS CASE. 
BUT THAT "RULE," AS IS TRUE OF ANY GUIDE TO STATUTORY CONSTRUCTION,
ONLY SERVES AS AN AID FOR RESOLVING AN AMBIGUITY; IT IS NOT TO BE USED
TO BEGET ONE.  (FN9)  "TO REST UPON A FORMULA IS A SLUMBER THAT,
PROLONGED, MEANS DEATH."  MR. JUSTICE HOLMES IN COLLECTED LEGAL PAPERS,
P. 306.  THE RULE COMES INTO OPERATION AT THE END OF THE PROCESS OF
CONSTRUING WHAT CONGRESS HAS EXPRESSED, NOT AT THE BEGINNING AS AN
OVERRIDING CONSIDERATION OF BEING LENIENT TO WRONGDOERS.  THAT IS NOT
THE FUNCTION OF THE JUDICIARY.  IN UNITED STATES V. UNIVERSAL C.I.T.
CREDIT CORP., 344 U.S. 218; BELL V. UNITED STATES, SUPRA, AND LADNER V.
UNITED STATES, 358 U.S. 169, THE APPLICABLE STATUTORY PROVISIONS WERE
FOUND TO BE UNCLEAR AS TO THE APPROPRIATE UNIT OF PROSECUTION;
ACCORDINGLY, THE RULE OF LENITY WAS UTILIZED, IN FAVOREM LIBERTATIS, TO
RESOLVE THE AMBIGUITY.  IN PRINCE V. UNITED STATES, 352 U.S. 322, AND
HEFLIN V. UNITED STATES, 358 U.S. 415, THE COURT HAD TO MEET THE
PROBLEM WHETHER VARIOUS SUBSIDIARY PROVISIONS OF THE FEDERAL BANK
ROBBERY ACT, 18 U.S.C. SEC. 2113, WHICH PUNISHED ENTERING WITH INTENT
TO COMMIT ROBBERY AND POSSESSING STOLEN PROPERTY, MERGED WHEN APPLIED
TO A DEFENDANT WHO WAS ALSO BEING PROSECUTED FOR THE ROBBERY ITSELF. 
AGAIN THE RULE OF LENITY SERVED TO RESOLVE THE DOUBT WITH WHICH
CONGRESS FACED THE COURT. 

HERE WE HAVE NO SUCH DUBIETIES WITHIN THE STATUTE ITSELF.  UNLIKE ALL
OF THESE CASES, THE PROBLEM BEFORE US DOES NOT INVOLVE THE APPROPRIATE
UNIT OF PROSECUTION - WHETHER CONDUCT CONSTITUTES ONE OR SEVERAL
VIOLATIONS OF A SINGLE STATUTORY PROVISION - NOR IS IT AN OPEN QUESTION
WHETHER CONSPIRACY AND ITS SUBSTANTIVE AIM MERGE INTO A SINGLE
OFFENSE.  THIS IS AN ORDINARY CASE OF A DEFENDANT CONVICTED OF
VIOLATING TWO SEPARATE PROVISIONS OF A STATUTE, WHEREBY CONGRESS
DEFINED TWO HISTORICALLY DISTINCTIVE CRIMES COMPOSED OF DIFFERING
COMPONENTS.  IF PETITIONER HAD COMMITTED TWO SEPARATE ACTS OF
EXTORTION, NO ONE WOULD QUESTION THAT THE CRIMES COULD BE PUNISHED BY
CONSECUTIVE SENTENCES; THE RESULT SEEMS NO LESS CLEAR IN THE PRESENT
CASE.  IT WAS THEREFORE WITHIN THE DISCRETION OF THE TRIAL JUDGE TO FIX
SEPARATE SENTENCES, EVEN THOUGH CONGRESS HAS SEEN FIT TO AUTHORIZE FOR
EACH OF THESE TWO OFFENSES WHAT MAY SEEM TO SOME TO BE HARSH
PUNISHMENT.  AFFIRMED. 

FN1  SECTION 1951(A) IS AS FOLLOWS: 

"WHOEVER IN ANY WAY OR DEGREE OBSTRUCTS, DELAYS, OR AFFECTS COMMERCE
OR THE MOVEMENT OF ANY ARTICLE OR COMMODITY IN COMMERCE, BY ROBBERY OR
EXTORTION OR ATTEMPTS OR CONSPIRES SO TO DO, OR COMMITS OR THREATENS
PHYSICAL VIOLENCE TO ANY PERSON OR PROPERTY IN FURTHERANCE OF A PLAN OR
PURPOSE TO DO ANYTHING IN VIOLATION OF THIS SECTION SHALL BE FINED NOT
MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TWENTY YEARS, OR BOTH." 

THE PERTINENT PARTS OF THE HOBBS ACT AMENDMENTS OF 1946, 60 STAT. 420,
FROM WHICH THE 1948 CODIFICATION WAS COMPILED, WERE AS FOLLOWS: 

"SEC. 2.  WHOEVER IN ANY WAY OR DEGREE OBSTRUCTS, DELAYS, OR AFFECTS
COMMERCE, OR THE MOVEMENT OF ANY ARTICLE OR COMMODITY IN COMMERCE BY
ROBBERY OR EXTORTION, SHALL BE GUILTY OF A FELONY. 

"SEC. 3.  WHOEVER CONSPIRES WITH ANOTHER OR WITH OTHERS, OR ACTS IN
CONCERT WITH ANOTHER OR WITH OTHERS TO DO ANYTHING IN VIOLATION OF

"SEC. 4.  WHOEVER ATTEMPTS OR PARTICIPATES IN AN ATTEMPT TO DO
ANYTHING IN VIOLATION OF SECTION 2 SHALL BE GUILTY OF A FELONY. 

"SEC. 5.  WHOEVER COMMITS OR THREATENS PHYSICAL VIOLENCE TO ANY
PERSON OR PROPERTY IN FURTHERANCE OF A PLAN OR PURPOSE TO DO ANYTHING
IN VIOLATION OF SECTION 2 SHALL BE GUILTY OF A FELONY. 

"SEC. 6.  WHOEVER VIOLATES ANY SECTION OF THIS TITLE SHALL, UPON
CONVICTION THEREOF, BE PUNISHED BY IMPRISONMENT FOR NOT MORE THAN
TWENTY YEARS OR BY A FINE OF NOT MORE THAN $10,000, OR BOTH."    THE
REVISER'S NOTE TO THE 1948 CODE STATES THAT "THE WORDS 'ATTEMPTS OR
CONSPIRES SO TO DO' WERE SUBSTITUTED FOR SECTIONS 3 AND 4 OF THE 1946
ACT,  ...  " 

FN2  PETITIONER WAS RELEASED FROM IMPRISONMENT IN APRIL 1960 AND
CURRENTLY IS ON PAROLE.  BOTH PARTIES AND THE COURTS BELOW APPARENTLY
HAVE INTERPRETED THE PROBATIONARY PERIOD FOR COUNT II TO COMMENCE AT
THE EXPIRATION OF PETITIONER'S PAROLE FOR COUNT I. 

FN3  BOTH COURTS BELOW RULED THAT 28 U.S.C. SEC. 2255 WAS NOT
AVAILABLE SINCE IT WOULD BE PREMATURE TO CLAIM THE "RIGHT TO BE
RELEASED" FROM A SENTENCE NOT YET SERVED.  SINCE, AS THE GOVERNMENT
CONCEDES, RULE 35 IS AVAILABLE TO CORRECT AN ILLEGAL SENTENCE WHEN THE
CLAIM IS BASED ON THE FACE OF THE INDICTMENT EVEN IF SUCH CLAIM HAD NOT
BEEN RAISED ON DIRECT APPEAL, HEFLIN V. UNITED STATES, 358 U.S. 415,
418, 422, THE APPLICABILITY OF SEC. 2255 NEED NOT BE CONSIDERED. 

FN4  THE ORIGINAL BILL, S. 2248, 73D CONG., 2D SESS., DID NOT CONTAIN
ANY PROVISION CONCERNING CONSPIRACY.  (OF COURSE, THE GENERAL
CONSPIRACY STATUTE, R.S. SEC. 5440, NOW 18 U.S.C. SEC.  371, WHICH THEN
PROVIDED FOR A MAXIMUM TWO-YEAR SENTENCE, WAS AVAILABLE.)  THE BILL
MADE PUNISHABLE BY IMPRISONMENT FROM ONE TO NINETY-NINE YEARS ACTS OF
VIOLENCE, EXTORTION, AND COERCION WHICH INTERFERED WITH INTERSTATE
COMMERCE.  78 CONG. REC. 11403.  THE PURPOSE OF THE LEGISLATION WAS TO
PROVIDE FOR DIRECT PROSECUTION OF LARGE-SCALE RACKETEERING, WHICH
FORMERLY HAD BEEN INEFFECTIVELY ATTEMPTED THROUGH THE SHERMAN ACT,
WHICH HAD A MAXIMUM PENALTY OF ONE-YEAR IMPRISONMENT OR $5,000 FINE. 
S. REP. NO. 532, 73D CONG., 2D SESS. P. 1.  AFTER THE BILL HAD PASSED
THE SENATE, 78 CONG. REC. 5735, SOME QUESTION WAS RAISED AS TO WHETHER
LEGITIMATE LABOR ACTIVITY WAS NOT THREATENED BY THE STATUTORY
PHRASEOLOGY, 78 CONG.  REC. 5859, 10867, AND PROVISOS WERE SUGGESTED BY
THE HOUSE JUDICIARY COMMITTEE IN REPORTING THE MEASURE TO THE FULL
BODY.  H.R. REP. NO. 1833, 73D CONG., 2D SESS.  THE COMMITTEE, UPON THE
SUGGESTION OF THE ATTORNEY GENERAL, FURTHER ADDED A SECTION MAKING
CONSPIRACY TO COMMIT ANY OF THE DESIGNATED SUBSTANTIVE VIOLATIONS
PUNISHABLE.  IBID.  THE AMENDED BILL WAS PASSED BY THE HOUSE
SUBSTANTIALLY AS REPORTED EXCEPT THAT THE PENALTY WAS DECREASED TO TEN
YEARS OR $10,000.  78 CONG. REC. 11403.  THE HOUSE BILL WAS SUMMARILY
APPROVED BY THE SENATE.  78 CONG. REC. 11482. 

FN5  A LITTLE OVER TWO MONTHS AFTER THE DECISION, H.R. 7067 WAS
INTRODUCED BY REPRESENTATIVE HOBBS IN THE HOUSE OF REPRESENTATIVES, 88
CONG. REC. 4080, FOLLOWING HEARINGS BEFORE A SUBCOMMITTEE OF THE
COMMITTEE ON THE JUDICIARY, 77TH CONG., 2D SESS.  THE BILL WAS REPORTED
FAVORABLY OUT OF COMMITTEE, THE ONLY MAJOR CHANGE BEING THE REDUCTION
OF THE PROPOSED TWENTY-YEAR MAXIMUM SENTENCE TO TEN YEARS.   IN
DISCUSSING THE VARIOUS PROVISIONS, THE REPORT STATED:  "THE OBJECTIVE
OF TITLE I IS TO PREVENT ANYONE FROM OBSTRUCTING, DELAYING, OR
AFFECTING COMMERCE, OR THE MOVEMENT OF ANY ARTICLE OR COMMODITY IN
COMMERCE BY ROBBERY OR EXTORTION AS DEFINED IN THE BILL.  A CONSPIRACY
OR ATTEMPT TO DO ANYTHING IN VIOLATION OF SECTION 2 IS LIKEWISE MADE
PUNISHABLE  ...  ."  H.R. REP. NO. 2176, 77TH CONG., 2D SESS., P. 9. 
NO FURTHER CONGRESSIONAL ACTION WAS TAKEN ON THE BILL. 

THE FOLLOWING YEAR, REPRESENTATIVE HOBBS INTRODUCED H.R. 653 WHICH
WAS IDENTICAL WITH HIS PRIOR BILL.  THIS TIME THE COMMITTEE DID NOT
AMEND THE TWENTY-YEAR PENALTY.  H.R. REP. NO. 66, 78TH CONG., 1ST SESS.
THE MEASURE PASSED THE HOUSE, 89 CONG. REC. 3230, BUT NO ACTION WAS
TAKEN IN THE SENATE. 

IN 1945 REPRESENTATIVE HOBBS AGAIN INTRODUCED HIS AMENDMENT.  H.R.
32, 79TH CONG., 1ST SESS.  THE MEASURE WAS PASSED BY BOTH BODIES, 91
CONG. REC. 11922, 92 CONG. REC. 7308.  BOTH COMMITTEE REPORTS AGAIN
STATED THAT "A CONSPIRACY OR ATTEMPT TO DO ANYTHING IN VIOLATION OF
2D SESS.; H.R. REP.  NO. 238 79TH CONG., 1ST SESS., P. 9. 

THE PERTINENT PARTS OF THE AMENDMENT, 60 STAT. 420, ARE SET OUT IN N.
1, SUPRA. 

FN6  TYPICAL EXCERPTS ON WHICH PETITIONER RELIES ARE: 

"MR. DELANEY.  THE FACT OF THE MATTER IS THAT THIS COMMITTEE REPORT
WAS NOT UNANIMOUS.  ALSO, IN THE COMMITTEE IT WAS INDICATED BY THOSE
WHO FAVOR THIS LEGISLATION THAT THE LEGISLATION IS TOO DRASTIC, THAT
THE $10,000 FINE AND 20 YEARS IN JAIL IS TOO DRASTIC.  THEY THINK A
MODIFIED BILL MIGHT BE MORE IN CONSONANCE WITH PRESENT-DAY THINKING." 
(89 CONG. REC.  3162.) 

   *         *         *         *         * 

"MR. FISH ...  .  I WANT TO REFER LIKEWISE TO SOME OF THE EXCESSIVE
PENALTIES.  THE PENALTIES IN THIS BILL IN MY OPINION ARE TOO SEVERE -
20 YEARS AND $10,000 FINE.  WHEN WE REACH THIS SECTION OF THE BILL
THERE SHOULD BE VERY CAREFUL CONSIDERATION GIVEN TO REDUCING BOTH THE
EXTENT OF THE IMPRISONMENT AND FINES."  (89 CONG. REC. 3194.) 

     *         *         *         * * 

"MR. SPRINGER.  MAY I ASK MY DISTINGUISHED COLLEAGUE ON THE COMMITTEE
ON THE JUDICIARY IF IT IS NOT A FACT THAT UNDER THE PROVISIONS OF THIS
BILL THE QUESTION OF PENALTY IS LEFT ENTIRELY DISCRETIONARY WITH THE
COURT TRYING THE CASE?  UNDER THE PROVISIONS OF THIS BILL A PERSON
COULD BE PENALIZED TO THE EXTENT OF 1 YEAR OR LESS THAN 1 YEAR OR UP TO
20 YEARS, ALL IN THE DISCRETION OF THE COURT. 

"MR. CELLER.  OR HIS SENTENCE MIGHT BE SUSPENDED.  I AGREE WITH THE
GENTLEMAN.  BUT WHY DO WE SINGLE OUT LABOR AND IMPOSE EVEN A POSSIBLE
PENALTY OF 20 YEARS?"  (89 CONG. REC. 3201.) 

     *         *         *         *         * 

"MR. ROBSION  ...  .  THERE IS SOME OBJECTION TO THE PENALTIES
PRESCRIBED IN THIS BILL FOR ROBBERY AND EXTORTION.  IT HAS GONE FORTH
TO THE COUNTRY THAT THE PENALTY IS 20 YEARS.  THAT IS NOT A CORRECT
STATEMENT.  THE PENALTIES RANGE FROM 1 HOUR UP TO 20 YEARS, ACCORDING
TO THE OFFENSE, AND FINES OF $1 TO $10,000.  IN OTHER WORDS, THE 20
YEARS AND THE $10,000 FINE ARE THE MAXIMUM."  (89 CONG. REC. 3226.) 

     *   *         *         *         * 

"MR. FISH  ...  .  WHEN THE BILL WAS BEFORE THE RULES COMMITTEE IT
SEEMED TO ME AT THAT TIME THAT THESE PENALTIES WERE EXCESSIVE.  TWENTY
YEARS IS JUST ABOUT AS BAD AS A LIFE SENTENCE, AND I WANT TO GIVE THE
HOUSE THE OPPORTUNITY TO REDUCE IT BY CUTTING IT IN HALF.  THIS APPLIES
TO THREATS.  A MAN MAY BE SENT TO JAIL FOR 20 YEARS MERELY FOR
THREATENING EXTORTION."  (89 CONG. REC. 3229.) 

FN7  FOR A DISCUSSION OF THESE PROBLEMS OF THE LAW OF CONSPIRACY SEE
DEVELOPMENTS IN THE LAW - CRIMINAL CONSPIRACY, 72 HARV. L. REV. 920,
922-925, 968-971. 

FN8  THE SENATE REPORT WHICH ACCOMPANIED THE ORIGINAL 1934
LEGISLATION DESCRIBED THE PURPOSE OF THE ACT BY SETTING FORTH A
MEMORANDUM RECEIVED FROM THE JUSTICE DEPARTMENT: 

"  ...  THE NEAREST APPROACH TO PROSECUTION OF RACKETEERS AS SUCH HAS
BEEN UNDER THE SHERMAN ANTITRUST ACT.  THIS ACT, HOWEVER, WAS DESIGNED
PRIMARILY TO PREVENT AND PUNISH CAPITALISTIC COMBINATIONS AND
MONOPOLIES, AND BECAUSE OF THE MANY LIMITATIONS ENGRAFTED UPON THE ACT
BY INTERPRETATIONS OF THE COURTS, THE ACT IS NOT WELL SUITED FOR
PROSECUTION OF PERSONS WHO COMMIT ACTS OF VIOLENCE, INTIMIDATION, AND
EXTORTION  ...  .  MOREOVER, A VIOLATION OF THE SHERMAN ACT IS MERELY A
MISDEMEANOR, PUNISHABLE BY 1 YEAR IN JAIL PLUS $5,000 FINE, WHICH IS
NOT A SUFFICIENT PENALTY FOR THE USUAL ACTS OF VIOLENCE AND
INTIMIDATION AFFECTING INTERSTATE COMMERCE."  S. REP. NO. 532, 73D
CONG., 2D SESS., P. 1. 

REPRESENTATIVE CELLER, IN ARGUING FOR A LESS SEVERE PENALTY DURING
THE 1945 DEBATES, SAID: 

"IF YOU LOOK AT THE ANTITRUST PENALTIES AGAINST EMPLOYERS YOU FIND
THAT THEY ARE ONLY $5,000 OR 1 YEAR IN JAIL.  THIS BILL HAS DIRECT
RELATION TO THE ANTITRUST LAWS, THE CLAYTON ACT."  91 CONG. REC.
11902. 

SEE ALSO REPRESENTATIVE CELLER'S REMARKS DURING THE 1943 DEBATES, 89
CONG. REC. 3201. 

FN9  "WHEN CONGRESS LEAVES TO THE JUDICIARY THE TASK OF IMPUTING TO
CONGRESS AN UNDECLARED WILL, THE AMBIGUITY SHOULD BE RESOLVED IN FAVOR
OF LENITY."  BELL V. UNITED STATES, 349 U.S. 81, 83. 

MR. JUSTICE STEWART, WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND
MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

TO BE SURE, IT IS NOW A COMMONPLACE OF OUR LAW THAT THE COMMISSION OF
A SUBSTANTIVE CRIME AND A CONSPIRACY TO COMMIT IT MAY BE TREATED BY
CONGRESS AS SEPARATE OFFENSES, CUMULATIVELY PUNISHABLE.  PINKERTON V.
UNITED STATES, 328 U.S. 640, 643.  IT IS ALSO TRUE THAT CONGRESS HAS
OFTEN CHOSEN TO EXERCISE ITS POWER TO MAKE SEPARATE OFFENSES OF THE
TWO.  (FN1)  BUT NEITHER OF THESE GENERALITIES PROVIDES AN ANSWER TO
THE QUESTION NOW BEFORE US.  THE QUESTION HERE IS THE MEANING OF THIS
LAW, THE HOBBS ANTI-RACKETEERING ACT.  I DO NOT AGREE THAT UNDER THIS
STATUTE A MAN CAN BE SEPARATELY CONVICTED AND CUMULATIVELY PUNISHED FOR
OBSTRUCTING COMMERCE BY EXTORTING MONEY, AND FOR CONSPIRING TO OBSTRUCT
COMMERCE BY THE SAME EXTORTION.  MY VIEW IS BASED BOTH UPON THE
LANGUAGE OF THE STATUTE AND UPON ITS HISTORY, CONSIDERED IN THE LIGHT
OF PRINCIPLES THAT HAVE CONSISTENTLY GUIDED THIS COURT'S DECISIONS IN
RELATED AREAS OF FEDERAL CRIMINAL LAW. 

THE RELEVANT SECTION OF THE ACT, REPEATED FOR CONVENIENCE IN THE
MARGIN, (FN2) IS NOT A MODEL OF PRECISE VERBAL STRUCTURE.  PURELY AS A
MATTER OF SYNTAX, THE SECTION COULD BE READ AS CREATING SEPARATE
OFFENSES FOR OBSTRUCTING COMMERCE, FOR DELAYING COMMERCE, AND FOR
AFFECTING COMMERCE BY ANY ONE OF THE PROSCRIBED MEANS.  IT COULD BE
READ, AGAIN MERELY AS A MATTER OF GRAMMAR, AS CREATING DISTINCT
OFFENSES FOR OBSTRUCTING COMMERCE BY ROBBERY, FOR THREATENING PHYSICAL
VIOLENCE TO PROPERTY IN CONNECTION WITH THE SAME ROBBERY, FOR
COMMITTING THE PHYSICAL VIOLENCE WHICH HAD BEEN THREATENED, FOR
ATTEMPTING TO DO SO, AND FOR CONSPIRING TO DO SO.  READ IN SUCH A WAY
THE ACT COULD BE MADE TO JUSTIFY THE IMPOSITION UPON ONE MAN OF
SEPARATE SENTENCES TOTALLING MORE THAN A HUNDRED YEARS FOR ONE BASIC
CRIMINAL TRANSACTION.  TO CONSTRUE THIS STATUTE THAT WAY WOULD
OBVIOUSLY BE ABSURD, AND I DO NOT UNDERSTAND THAT THE COURT TODAY EVEN
REMOTELY SUGGESTS ANY SUCH CONSTRUCTION. 

THE ACT, THEN, MUST MEAN SOMETHING ELSE.  I THINK ITS LANGUAGE CAN
FAIRLY BE READ AS IMPOSING A MAXIMUM TWENTY-YEAR SENTENCE FOR EACH
ACTUAL OR THREATENED INTERFERENCE WITH INTERSTATE COMMERCE ACCOMPLISHED
BY ANY ONE OR MORE OF THE PROSCRIBED MEANS.  SUCH A READING OF THE ACT
DOES VIOLENCE NEITHER TO SEMANTICS NOR TO COMMON SENSE.  IT IS FULLY
JUSTIFIED BY THE LEGISLATIVE HISTORY, AND IT IS CONSISTENT WITH SETTLED
PRINCIPLES GOVERNING THE CONSTRUCTION OF AMBIGUOUS CRIMINAL STATUTES. 
IF THIS IS WHAT THE ACT MEANS, THEN THE INDICTMENT IN THE PRESENT CASE
CHARGED BUT A SINGLE OFFENSE, AND IT WAS WRONG TO IMPOSE TWO SEPARATE
SENTENCES UPON THE PETITIONER. 

THE ANTECEDENT OF THE PRESENT ACT WAS THE ANTI-RACKETEERING ACT OF
1934.  THAT LEGISLATION WAS ORIGINALLY INTRODUCED AFTER EXTENSIVE
HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON COMMERCE,
POPULARLY KNOWN AS THE COMMITTEE ON RACKETEERING.  THE ORIGINAL BILL
DID NOT CONTAIN ANY REFERENCE TO CONSPIRACY.  S. 2248, 73D CONG., 2D
SESS.  THE COMMITTEE REPORT CONSISTED OF A MEMORANDUM FROM THE
DEPARTMENT OF JUSTICE, STATING THAT THE PURPOSE OF THE BILL WAS TO
PERMIT PROSECUTION OF SO-CALLED "RACKETEERS" FOR ACTS CONSTITUTING
RACKETEERING.  SIGNIFICANTLY, THE MEMORANDUM STATED "THE ACCOMPANYING
PROPOSED STATUTE IS DESIGNED TO AVOID MANY OF THE EMBARRASSING
LIMITATIONS IN THE WORDING AND INTERPRETATION OF THE SHERMAN ACT, AND
TO EXTEND FEDERAL JURISDICTION OVER ALL RESTRAINTS OF ANY COMMERCE
WITHIN THE SCOPE OF THE FEDERAL GOVERNMENT'S CONSTITUTIONAL POWERS. 
SUCH RESTRAINTS IF ACCOMPANIED BY EXTORTION, VIOLENCE, COERCION, OR
INTIMIDATION, ARE MADE FELONIES, WHETHER THE RESTRAINTS ARE IN FORM OF
CONSPIRACIES OR NOT."  S. REP. NO. 532, 73D CONG., 2D SESS., P. 1. 

AFTER THE BILL HAD PASSED THE SENATE FEAR WAS EXPRESSED THAT SOME OF
THE PROVISIONS OF THE PROPOSED LEGISLATION MIGHT ENDANGER LEGITIMATE
ACTIVITIES OF ORGANIZED LABOR.  IN RESPONSE TO THESE FEARS THE BILL WAS
REVISED BY THE HOUSE JUDICIARY COMMITTEE ALONG LINES SUGGESTED BY THE
ATTORNEY GENERAL, AND IT WAS THEN THAT THE STATUTORY REFERENCE TO
CONSPIRACY WAS ADDED, WITHOUT EXPLANATION.  H.R. REP. NO. 1833, 73D
CONG., 2D SESS.  THE BILL WAS PASSED BY THE HOUSE AFTER ADOPTION OF AN
AMENDMENT REDUCING THE MAXIMUM PUNISHMENT PROVISION TO "10 YEARS OR BY
A FINE OF $10,000 OR BOTH."  78 CONG. REC. 11403.  THEREAFTER, THE
SENATE APPROVED THE HOUSE BILL WITHOUT DEBATE.  78 CONG. REC. 11482. 

IN 1942 THIS COURT CONSIDERED THE 1934 ACT IN UNITED STATES V. LOCAL
807, 315 U.S. 521, HOLDING THAT UNDER THE STATUTE'S LABOR EXEMPTION THE
PETITIONERS THERE HAD BEEN WRONGLY CONVICTED.  WITHIN A FEW WEEKS AFTER
THAT DECISION, REPRESENTATIVE HOBBS INTRODUCED A BILL IN THE HOUSE
DESIGNED TO ELIMINATE THE LABOR EXEMPTION FROM THE STATUTE.  SIMILAR
AMENDATORY BILLS WERE INTRODUCED IN SUCCEEDING SESSIONS OF CONGRESS,
AND IN 1946 THE ACT WAS FINALLY AMENDED BY DELETION OF THE PROVISION
EXEMPTING WAGES PAID BY AN EMPLOYER TO AN EMPLOYEE, THE EXEMPTION UPON
WHICH THE DECISION IN THE LOCAL 807 CASE HAD BEEN BASED. 

WITH THAT ASPECT OF THE 1946 AMENDMENT WE ARE NOT HERE CONCERNED. 
BUT THE AMENDMENT MADE ONE OTHER SIGNIFICANT CHANGE IN THE ACT:  IT
INCREASED THE MAXIMUM PENALTY FROM TEN TO TWENTY YEARS' IMPRISONMENT. 
THE CONGRESSIONAL DEBATES OVER THAT PROVISION THROW CONSIDERABLE LIGHT
UPON THE PROBLEM NOW BEFORE US.  FOR TWO CONCLUSIONS CAN BE DRAWN FROM
A REVIEW OF THE DISCUSSIONS IN CONGRESS OF THE PROPOSED INCREASE IN THE
PENALTY PROVISION.  FIRST, IT IS CLEAR THAT MANY MEMBERS OF CONGRESS
WERE SERIOUSLY CONCERNED BY THE SEVERITY OF A PENALTY OF TWENTY YEARS
IN PRISON FOR VIOLATION OF THIS STATUTE.  EXPRESSIONS SUCH AS "TOO
DRASTIC," "TOO SEVERE," AND "EXCESSIVE" WERE USED IN DESCRIBING WHAT
WAS REFERRED TO BY ONE MEMBER AS "EVEN A POSSIBLE PENALTY OF 20
YEARS."  89 CONG. REC. 3162, 3194, 3201, 3229.  SECONDLY, IT IS CLEAR
THAT THERE WAS GENERAL AGREEMENT AMONG BOTH THE PROPONENTS AND THE
OPPONENTS OF THE LEGISLATION THAT TWENTY YEARS WAS TO BE THE MAXIMUM
PENALTY THAT COULD BE IMPOSED UPON A DEFENDANT CONVICTED OF VIOLATING
THE STATUTE.  89 CONG. REC. 3226.  NO ONE EVER SUGGESTED THAT
CUMULATIVE PENALTIES COULD BE INFLICTED.    IN SUM, THEN, WE HAVE HERE
A STATUTE WHICH, AS A MATTER OF ENGLISH LANGUAGE, CAN FAIRLY BE READ AS
IMPOSING A SINGLE PENALTY FOR EACH INTERFERENCE OR THREATENED
INTERFERENCE WITH INTERSTATE COMMERCE BY ANY OR ALL OF THE PROHIBITED
MEANS.  WE HAVE EVIDENCE STEMMING FROM THE VERY ORIGIN OF THE
LEGISLATION THAT THE UNIT OF PROSECUTION UNDER THE STATUTE WAS TO BE
EACH RESTRAINT OF COMMERCE, NOT EACH MEANS BY WHICH THE RESTRAINT WAS
ACCOMPLISHED.  AS THE ORIGINAL SENATE COMMITTEE REPORT STATED,
"RESTRAINTS IF ACCOMPANIED BY EXTORTION, VIOLENCE, COERCION, OR
INTIMIDATION, ARE MADE FELONIES, WHETHER THE RESTRAINTS ARE IN FORM OF
CONSPIRACIES OR NOT."  FINALLY, WE HAVE EVERY INDICATION THAT WHEN THE
ACT WAS AMENDED IN 1946 CONGRESS WAS AGREED THAT BUT A SINGLE MAXIMUM
SENTENCE OF TWENTY YEARS COULD BE IMPOSED UPON CONVICTION, AND THAT
MANY MEMBERS OF CONGRESS CONSIDERED EVEN THAT PENALTY FAR TOO SEVERE. 

IT IS SAID, HOWEVER, THAT DESPITE ALL THIS WE MUST ATTRIBUTE TO
CONGRESS A "TACIT PURPOSE" TO PROVIDE CUMULATIVE PUNISHMENTS FOR
CONSPIRACY AND SUBSTANTIVE CONDUCT UNDER THIS STATUTE.  WE ARE TOLD
THAT THIS PRESUMPTION OF A TACIT PURPOSE MUST PREVAIL BECAUSE THERE IS
NO "SPECIFIC LANGUAGE TO THE CONTRARY" IN THE ACT.  (FN3)  BUT TO
INDULGE IN SUCH A PRESUMPTION SEEMS TO ME WHOLLY AT ODDS WITH
PRINCIPLES FIRMLY ESTABLISHED BY OUR PREVIOUS DECISIONS. 

IN BELL V. UNITED STATES, 349 U.S. 81, WE DESCRIBED THE APPROACH TO
BE TAKEN IN A CASE SUCH AS THIS.  "WHEN CONGRESS HAS THE WILL IT HAS NO
DIFFICULTY IN EXPRESSING IT  ...  .  WHEN CONGRESS LEAVES TO THE
JUDICIARY THE TASK OF IMPUTING TO CONGRESS AN UNDECLARED WILL, THE
AMBIGUITY SHOULD BE RESOLVED IN FAVOR OF LENITY."  349 U.S., AT 83.  IN
LADNER V. UNITED STATES, 358 U.S. 169, WE SAID: "THIS POLICY OF LENITY
MEANS THAT THE COURT WILL NOT INTERPRET A FEDERAL CRIMINAL STATUTE SO
AS TO INCREASE THE PENALTY THAT IT PLACES ON AN INDIVIDUAL WHEN SUCH AN
INTERPRETATION CAN BE BASED ON NO MORE THAN A GUESS AS TO WHAT CONGRESS
INTENDED."  358 U.S., AT 178.  IN PRINCE V. UNITED STATES, 352 U.S.
322, WE SPOKE OF THE DOCTRINE AS ONE "OF NOT ATTRIBUTING TO CONGRESS,
IN THE ENACTMENT OF CRIMINAL STATUTES, AN INTENTION TO PUNISH MORE
SEVERELY THAN THE LANGUAGE OF ITS LAWS CLEARLY IMPORTS IN THE LIGHT OF
PERTINENT LEGISLATIVE HISTORY."  352 U.S., AT 329.  THESE RECENT
EXPRESSIONS ARE BUT RESTATEMENTS IN A SPECIFIC CONTEXT OF THE ANCIENT
RULE THAT A CRIMINAL STATUTE IS TO BE STRICTLY CONSTRUED.  I WOULD NOT
DEPART FROM THAT RULE IN THE PRESENT CASE. 

FN1  THE MOST NOTABLE ILLUSTRATION OF THIS IS THE GENERAL CONSPIRACY
STATUTE, 18 U.S.C.  SEC. 371. 

FN2  "WHOEVER IN ANY WAY OR DEGREE OBSTRUCTS, DELAYS, OR AFFECTS
COMMERCE OR THE MOVEMENT OF ANY ARTICLE OR COMMODITY IN COMMERCE, BY
ROBBERY OR EXTORTION OR ATTEMPTS OR CONSPIRES SO TO DO, OR COMMITS OR
THREATENS PHYSICAL VIOLENCE TO ANY PERSON OR PROPERTY IN FURTHERANCE OF
A PLAN OR PURPOSE TO DO ANYTHING IN VIOLATION OF THIS SECTION SHALL BE
FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TWENTY YEARS,
OR BOTH."  18 U.S.C. SEC. 1951(A). 

FN3  THE COURT'S RELIANCE UPON AMERICAN TOBACCO CO. V. UNITED STATES,
328 U.S. 781, SEEMS TO ME MISPLACED.  THE DISCUSSION OF MULTIPLE
PUNISHMENT IN THAT OPINION WAS IN RESPONSE TO THE CONTENTION THAT
CONGRESS COULD NOT, BECAUSE OF THE DOUBLE JEOPARDY PROVISION OF THE
FIFTH AMENDMENT, IMPOSE MULTIPLE PUNISHMENT FOR SUBSTANTIVE CONDUCT AND
CONSPIRACY.  MOREOVER, TO DECIDE THE MEANING OF THIS ACT UPON THE BASIS
OF WHAT CONGRESS MAY HAVE PROVIDED IN ANOTHER STATUTE, WOULD SEEM TO ME
A DUBIOUS WAY TO RESOLVE THE ISSUE.  CF. BELL V. UNITED STATES, 349
U.S. 81, 83. 
..END :























LEWIS V. MANUFACTURERS NATIONAL BANK OF DETROIT 364 U.S. 603 


NO. 94.  ARGUED DECEMBER 15, 1960 - DECIDED JANUARY 9, 1961 - 275 F.2D
454, AFFIRMED. 


PETITIONER'S BANKRUPT BORROWED MONEY FROM RESPONDENT ON NOVEMBER 4,
1957, GIVING AS SECURITY A CHATTEL MORTGAGE ON AN AUTOMOBILE, WHICH WAS
NOT RECORDED UNTIL NOVEMBER 8, 1957.  UNDER THE LAW OF THE STATE WHERE
THE TRANSACTION OCCURRED, SUCH A MORTGAGE WAS VOID AGAINST ONE WHO
BECAME A CREDITOR OF THE MORTGAGOR BETWEEN THE TIME OF EXECUTION AND
THE TIME OF RECORDATION.  OVER FIVE MONTHS AFTER RECORDATION OF THE
CHATTEL MORTGAGE, THE BORROWER FILED A VOLUNTARY PETITION IN
BANKRUPTCY.  HE WAS ADJUDICATED A BANKRUPT AND PETITIONER WAS NAMED
TRUSTEE.  HELD:  UNDER SEC. 70C OF THE BANKRUPTCY ACT, THE CHATTEL
MORTGAGE WAS NOT VOID AS AGAINST THE TRUSTEE, SINCE THE TRUSTEE
ACQUIRED THE STATUS OF A CREDITOR AS OF THE TIME WHEN THE PETITION IN
BANKRUPTCY WAS FILED.  PP. 603-610. 

LEWIS, TRUSTEE IN BANKRUPTCY, V. MANUFACTURERS NATIONAL BANK OF
DETROIT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE BANKRUPT BORROWED MONEY FROM RESPONDENT ON NOVEMBER 4, 1957,
GIVING AS SECURITY A CHATTEL MORTGAGE ON AN AUTOMOBILE.  IN MICHIGAN,
WHERE THE TRANSACTION TOOK PLACE, MORTGAGES WERE VOID AS AGAINST
CREDITORS OF THE MORTGAGOR UNLESS FILED WITH THE REGISTER OF DEEDS
(FN1) WITH A SPECIAL DISPENSATION TO PURCHASE-MONEY MORTGAGES IF FILED
WITHIN 14 DAYS OF THE EXECUTION OF THE MORTGAGE.  THIS MORTGAGE,
HOWEVER, WAS NOT A PURCHASE-MONEY MORTGAGE; AND THOUGH EXECUTED ON
NOVEMBER 4, 1957, IT WAS NOT RECORDED UNTIL NOVEMBER 8, 1957. 

OVER FIVE MONTHS LATER - ON APRIL 18, 1958 - THE BORROWER FILED A
VOLUNTARY PETITION IN BANKRUPTCY AND AN ADJUDICATION OF BANKRUPTCY
FOLLOWED, PETITIONER BEING NAMED TRUSTEE. 

THERE WAS NO EVIDENCE THAT ANY CREDITOR HAD EXTENDED CREDIT BETWEEN
NOVEMBER 4, THE DATE OF THE EXECUTION OF THE MORTGAGE, AND NOVEMBER 8,
THE DATE OF ITS RECORDATION.  BUT SINCE THE MORTGAGE HAD NOT BEEN
RECORDED IMMEDIATELY, THE REFEREE HELD THAT IT WAS VOID AS AGAINST THE
TRUSTEE.  THE REFEREE RELIED UPON SEC. 70C OF THE BANKRUPTCY ACT, 11
U.S.C. SEC. 110(C), WHICH, SO FAR AS MATERIAL HERE, READS: 

"THE TRUSTEE, AS TO ALL PROPERTY, WHETHER OR NOT COMING INTO
POSSESSION OR CONTROL OF THE COURT, UPON WHICH A CREDITOR OF THE
BANKRUPT COULD HAVE OBTAINED A LIEN BY LEGAL OR EQUITABLE PROCEEDINGS
AT THE DATE OF BANKRUPTCY, SHALL BE DEEMED VESTED AS OF SUCH DATE WITH
ALL THE RIGHTS, REMEDIES, AND POWERS OF A CREDITOR THEN HOLDING A LIEN
THEREON BY SUCH PROCEEDINGS, WHETHER OR NOT SUCH A CREDITOR ACTUALLY
EXISTS." 

HE RULED THAT SEC. 70C "CLOTHES THE TRUSTEE WITH THE RIGHTS OF A
CREDITOR WHO COULD HAVE OBTAINED A LIEN AT THE DATE OF BANKRUPTCY
WHETHER OR NOT SUCH A CREDITOR EXISTS."  HE CONCLUDED THAT UNDER
MICHIGAN LAW A CREDITOR COULD HAVE TAKEN PRIOR TO THE MORTGAGE HAD HE
EXTENDED CREDIT DURING THE FOUR-DAY PERIOD WHEN THE MORTGAGE WAS "OFF
RECORD" AND THAT THEREFORE THE TRUSTEE CAN CLAIM THE SAME RIGHTS, EVEN
THOUGH THERE WAS NO SUCH CREDITOR.  THE DISTRICT COURT OVERRULED THE
REFEREE AND THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT.  275 F.2D
454.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE OF A CONFLICT BETWEEN THAT DECISION AND CONSTANCE V.
HARVEY, 215 F.2D 571, DECIDED BY THE COURT OF APPEALS FOR THE SECOND
CIRCUIT AND SUBSEQUENTLY FOLLOWED BY THE SAME COURT IN CONTI V. VOLPER,
229 F.2D 317.  363 U.S. 837. 

PETITIONER'S CASE TURNS ON THE WORDS, "UPON WHICH A CREDITOR OF THE
BANKRUPT COULD HAVE OBTAINED A LIEN  ...  WHETHER OR NOT SUCH A
CREDITOR ACTUALLY EXISTS," CONTAINED IN SEC. 70C. 

PRIOR TO 1910 THE TRUSTEE HAD NO BETTER TITLE TO THE PROPERTY THAN
THE BANKRUPT HAD.  SEE YORK MFG. CO. V. CASSELL, 201 U.S. 344, 352;
ZARTMAN V. FIRST NATIONAL BANK, 216 U.S. 134, 138.  THE PROVISION WITH
WHICH WE ARE HERE CONCERNED WAS WRITTEN INTO THE LAW IN 1910 TO GIVE
THE TRUSTEE ALL THE RIGHTS OF AN IDEAL JUDICIAL LIEN CREDITOR.  (FN2) 

THE PREDECESSOR OF THE PRESENT SEC. 70C WAS SEC. 47A(2) OF THE
BANKRUPTCY ACT, AS AMENDED BY THE 1910 ACT WHICH PROVIDED IN RELEVANT
PART: 

"  ...  SUCH TRUSTEES, AS TO ALL PROPERTY IN THE CUSTODY OR COMING
INTO THE CUSTODY OF THE BANKRUPTCY COURT, SHALL BE DEEMED VESTED WITH
ALL THE RIGHTS, REMEDIES, AND POWERS OF A CREDITOR HOLDING A LIEN BY
LEGAL OR EQUITABLE PROCEEDINGS THEREON; AND ALSO, AS TO ALL PROPERTY
NOT IN THE CUSTODY OF THE BANKRUPTCY COURT, SHALL BE DEEMED VESTED WITH
ALL THE RIGHTS, REMEDIES, AND POWERS OF A JUDGMENT CREDITOR HOLDING AN
EXECUTION DULY RETURNED UNSATISFIED."  36 STAT. 840. 

THAT LANGUAGE WAS HELD TO GIVE THE TRUSTEE THE STATUS OF A CREDITOR
"AS OF THE TIME WHEN THE PETITION IN BANKRUPTCY IS FILED."  BAILEY V.
BAKER ICE MACHINE CO., 239 U.S. 268, 276. 

IN 1938 THE RELEVANT PROVISIONS OF SEC. 47A(2) WERE TRANSFERRED TO
SEC. 70C WITH NO MATERIAL CHANGE.  (FN3) 

IN 1950 SEC. 70C WAS RECAST TO READ AS FOLLOWS: 

"  ...  THE TRUSTEE, AS TO ALL PROPERTY OF THE BANKRUPT AT THE DATE
OF BANKRUPTCY WHETHER OR NOT COMING INTO POSSESSION OR CONTROL OF THE
COURT, SHALL BE DEEMED VESTED AS OF THE DATE OF BANKRUPTCY WITH ALL THE
RIGHTS, REMEDIES, AND POWERS OF A CREDITOR THEN HOLDING A LIEN THEREON
BY LEGAL OR EQUITABLE PROCEEDINGS, WHETHER OR NOT SUCH A CREDITOR
ACTUALLY EXISTS."  64 STAT. 26. 

THUS THE DISTINCTION BETWEEN PROPERTY IN THE POSSESSION OF THE
BANKRUPT AS OF THE DATE OF BANKRUPTCY AND OTHER PROPERTY WAS ABOLISHED;
AND THE TRUSTEE WAS GIVEN THE STATUS OF A CREDITOR HOLDING A LIEN
THROUGH LEGAL OR EQUITABLE PROCEEDINGS AS TO BOTH TYPES OF PROPERTY. 
THIS 1950 AMENDMENT, HOWEVER, CREATED AN ANOMALY.  THE HOUSE REPORT
(FN4) ACCOMPANYING A 1952 AMENDMENT THAT CAST SEC. 70C IN ITS PRESENT
FORM STATES: 

"  ...  IT IS NOW RECOGNIZED THAT THE AMENDMENT DID NOT ACCURATELY
EXPRESS WHAT WAS INTENDED.  SINCE THE TRUSTEE ALREADY HAS TITLE TO ALL
OF THE BANKRUPT'S PROPERTY, IT IS NOT PROPER TO SAY THAT HE HAS THE
RIGHTS OF A LIEN CREDITOR UPON HIS OWN PROPERTY.  WHAT SHOULD BE SAID
IS THAT HE HAS THE RIGHTS OF A LIEN CREDITOR UPON PROPERTY IN WHICH THE
BANKRUPT HAS AN INTEREST OR AS TO WHICH THE BANKRUPT MAY BE THE
OSTENSIBLE OWNER.  ACCORDINGLY, THE LANGUAGE OF SECTION 70C HAS BEEN
REVISED SO AS TO CLARIFY ITS MEANING AND STATE MORE ACCURATELY WHAT IS
INTENDED." 

WE THINK THAT ONE CONSISTENT THEORY UNDERLIES THE SEVERAL VERSIONS OF
SEC. 70C WHICH WE HAVE SET FORTH, VIZ., THAT THE RIGHTS OF CREDITORS -
WHETHER THEY ARE EXISTING OR HYPOTHETICAL - TO WHICH THE TRUSTEE
SUCCEEDS ARE TO BE ASCERTAINED AS OF "THE DATE OF BANKRUPTCY," (FN5)
NOT AT AN ANTERIOR POINT OF TIME.  THAT IS TO SAY, THE TRUSTEE ACQUIRES
THE STATUS OF A CREDITOR AS OF THE TIME WHEN THE PETITION IN BANKRUPTCY
IS FILED.  WE READ THE STATUTORY WORDS "THE RIGHTS  ...  OF A CREDITOR
(EXISTING OR HYPOTHETICAL) THEN HOLDING A LIEN" TO REFER TO THAT DATE. 
(FN6) 

THIS CONSTRUCTION SEEMS TO US TO FIT THE SCHEME OF THE ACT.  (FN7)
CREDITORS HAVING PROVABLE CLAIMS COULD VOID.  THE CONSTRUCTION OF SEC.
70C WHICH PETITIONER URGES WOULD GIVE THE TRUSTEE POWER TO SET ASIDE
TRANSACTIONS WHICH NO CREDITOR COULD VOID AND WHICH INJURED NO
CREDITOR.  THAT CONSTRUCTION WOULD ENRICH UNSECURED CREDITORS AT THE
EXPENSE OF SECURED CREDITORS, CREATING A WINDFALL MERELY BY REASON OF
THE HAPPENSTANCE OF BANKRUPTCY. 

IT IS TRUE THAT IN SOME INSTANCES THE TRUSTEE HAS RIGHTS WHICH
EXISTING CREDITORS MAY NOT HAVE.  SECTION 11, 11 U.S.C. SEC. 29, GIVES
HIM TWO YEARS TO INSTITUTE LEGAL PROCEEDINGS REGARDLESS OF WHAT
LIMITATIONS CREDITORS MIGHT HAVE BEEN UNDER.  SECTION 60, 11 U.S.C.
SEC. 96, GIVES HIM THE RIGHT TO RECOVER PREFERENTIAL TRANSFERS MADE BY
THE BANKRUPT WITHIN FOUR MONTHS WHETHER OR NOT CREDITORS HAD THAT RIGHT
BY LOCAL LAW.  A LIKE POWER EXISTS UNDER SEC. 67A, 11 U.S.C. SEC.
107(A), AS RESPECTS THE INVALIDATION OF JUDICIAL LIENS OBTAINED WITHIN
FOUR MONTHS OF BANKRUPTCY WHEN THE BANKRUPT WAS INSOLVENT.  SECTION
67D, 11 U.S.C. SEC. 107(D), CAREFULLY DEFINES TRANSACTIONS WHICH MAY BE
VOIDED IF MADE "WITHIN ONE YEAR PRIOR TO THE FILING" OF THE PETITION. 

CONGRESS IN STRIKING A BALANCE BETWEEN SECURED AND UNSECURED
CREDITORS HAS PROVIDED FOR SPECIFIC PERIODS OF REPOSE BEYOND WHICH
TRANSACTIONS OF THE BANKRUPT PRIOR TO BANKRUPTCY MAY NO LONGER BE UPSET
- EXCEPT AND UNLESS EXISTING CREDITORS CAN SET THEM ASIDE.  (FN8)  YET
IF WE CONSTRUE SEC. 70C AS PETITIONER DOES, THERE WOULD BE NO PERIOD OF
REPOSE.  SECURITY TRANSACTIONS ENTERED INTO IN GOOD FAITH YEARS BEFORE
THE BANKRUPTCY COULD BE UPSET IF THE TRUSTEE WERE INGENIOUS ENOUGH TO
CONJURE UP A HYPOTHETICAL SITUATION IN WHICH A HYPOTHETICAL CREDITOR
MIGHT HAVE HAD SUCH A RIGHT.  THE RULE PRESSED UPON US WOULD DEPRIVE A
MORTGAGEE OF HIS RIGHTS IN STATES LIKE MICHIGAN, IF THE MORTGAGE HAD
BEEN EXECUTED MONTHS OR EVEN YEARS PREVIOUSLY AND THERE HAD BEEN A
DELAY OF A DAY OR TWO IN RECORDING WITHOUT ANY CREDITOR HAVING BEEN
INJURED DURING THE PERIOD WHEN THE MORTGAGE WAS UNRECORDED. 

THAT IS TOO GREAT A WRENCH FOR US TO GIVE THE BANKRUPTCY SYSTEM,
ABSENT A PLAIN INDICATION FROM CONGRESS WHICH IS LACKING HERE. 
AFFIRMED. 

FN1  MICH. COMP. LAWS, 1948, SEC. 566.140, AS AMENDED BY PUB. ACTS
1957, NO. 233.  IN 1959, BY PUB. ACTS 1959, NO. 110, A 10-DAY GRACE
PERIOD WAS GIVEN TO ALL MORTGAGEES VIS-A-VIS CREDITORS. 

FN2  SEE MACLACHLAN, BANKRUPTCY (1956), P. 187.  THE COMMITTEE REPORT
CONCERNING THE 1910 AMENDMENT SAID: 

"IT IS EVIDENT THAT IN THE PROPOSED AMENDMENT ATTEMPT IS MADE TO GIVE
EFFECT TO TWO IDEAS QUITE DISTINCT:  FIRST, THAT AS TO THE PROPERTY IN
THE CUSTODY OF THE BANKRUPTCY COURT THE BANKRUPTCY TRUSTEE SHALL BE
CONSIDERED TO HAVE THE SAME TITLE THAT A CREDITOR HOLDING AN EXECUTION
OR OTHER LIEN BY LEGAL OR EQUITABLE PROCEEDINGS LEVIED UPON THAT
PROPERTY WOULD HAVE UNDER STATE LAW:  AND, SECOND, THAT AS TO PROPERTY
NOT IN THE CUSTODY OF THE BANKRUPTCY COURT THE TRUSTEE SHOULD STAND IN
THE POSITION OF A JUDGMENT CREDITOR HOLDING AN EXECUTION RETURNED
UNSATISFIED, THUS ENTITLING HIM TO PROCEED PRECISELY AS AN INDIVIDUAL
CREDITOR MIGHT HAVE DONE TO SUBJECT ASSETS.  IN THIS WAY, IN EFFECT,
PROCEEDINGS IN BANKRUPTCY WILL GIVE TO CREDITORS ALL THE RIGHTS THAT
CREDITORS UNDER THE STATE LAW MIGHT HAVE HAD HAD THERE BEEN NO
BANKRUPTCY AND FROM WHICH THEY ARE DEBARRED BY THE BANKRUPTCY -
CERTAINLY A VERY DESIRABLE AND EMINENTLY FAIR POSITION TO BE GRANTED TO
THE TRUSTEE."  H.R. REP. NO. 511, 61ST CONG., 2D SESS., P. 7. 

FN3  SEE MACLACHLAN, BANKRUPTCY (1956), P. 187; H.R. REP. NO. 1409,
75TH CONG., 1ST SESS., PP. 4, 34-35. 

FN4  H.R. REP. NO. 2320, 82D CONG., 2D SESS., P. 16. 

FN5  WHILE SEC. 70C SPEAKS OF "THE DATE OF BANKRUPTCY," THAT TERM IS
DEFINED AS "THE DATE WHEN THE PETITION WAS FILED."  SECTION 1(13), 11
U.S.C. SEC. 1(13). 

FN6  AFTER THE DECISION IN CONSTANCE V. HARVEY, 215 F.2D 571, 575,
CONGRESS PASSED A BILL TO CHANGE ITS HOLDING.  THE PRESIDENT VETOED THE
BILL, STATING: 

"I HAVE WITHHELD MY APPROVAL OF H.R. 7242, TO AMEND SECTIONS 1, 57J,
64A(5), 67B, 67C, AND 70C OF THE BANKRUPTCY ACT, AND FOR OTHER FURTHER
PURPOSES. 

"I RECOGNIZE THE NEED FOR LEGISLATION TO SOLVE CERTAIN PROBLEMS
REGARDING THE PRIORITY OF LIENS IN BANKRUPTCY, BUT THIS BILL IS NOT A
SATISFACTORY SOLUTION.  IT WOULD UNDULY AND UNNECESSARILY PREJUDICE THE
SOUND ADMINISTRATION OF FEDERAL TAX LAWS.  IN SOME CASES, FOR EXAMPLE,
MORTGAGES WOULD BE GIVEN AN UNWARRANTED PRIORITY OVER FEDERAL TAX LIENS
EVEN THOUGH THE MORTGAGE IS RECORDED AFTER THE FILING OF THE TAX LIEN. 

"THIS AND OTHER DEFECTS OF THE BILL CAN, I BELIEVE, BE CORRECTED
WITHOUT COMPROMISING ITS PRIMARY AND COMMENDABLE PURPOSE."  CONG. REC.,
SEPTEMBER 16, 1960, P. A7013. 

THE COMMITTEE REPORT, URGING THAT AMENDMENT, MADE CLEAR THE INEQUITY
THAT MIGHT OFTEN RESULT IF SEC. 70C IS CONSTRUED AS CONSTANCE V.
HARVEY, SUPRA, CONSTRUED IT: 

"THE HOLDING IN CONSTANCE V. HARVEY, BY INJECTING INTO SECTION 70C
THE SUBSTANCE OF 70E, CREATED THE STATUTORILY UNWARRANTED STATUS OF A
HYPOTHETICAL CREDITOR WITH RIGHTS RELATING BACK TO A DATE PRIOR TO
BANKRUPTCY.  WHILE BANKRUPTCY IS IN EFFECT A GENERAL LEVY ON THE
PROPERTY OF THE BANKRUPT FOR THE BENEFIT OF HIS CREDITORS, IT IS NOT A
LICENSE FOR THE TRUSTEE, IRRESPECTIVE OF PREJUDICE TO CREDITORS, TO
AVOID AT WILL ANY SECURITY GIVEN BY THE BANKRUPT WHICH REMAINED
IMPERFECTED FOR ANY PERIOD OF TIME PRIOR TO BANKRUPTCY.  YET THIS IS
THE EFFECT OF CONSTANCE V. HARVEY.  UNDER THIS DECISION THE ONLY LIMIT
TO THE POWER OF THE TRUSTEE IS HIS ABILITY TO CONCEIVE OF SOME RIGHT OF
A CREDITOR THAT CAN BE USED AS A BASIS FOR STRIKING DOWN IMPERFECT
TRANSFERS.  THE DOCTRINE OF CONSTANCE V. HARVEY PRESENTS A VERY REAL
THREAT TO SECURITY TRANSACTIONS, THE VALIDITY OF WHICH HAVE HITHERTO
NOT BEEN SUBJECT TO CHALLENGE UNDER THE ACT.  MOREOVER, THIS IS A
THREAT WHICH IS NOT REQUIRED BY THE POLICY OF THE ACT, SINCE THE
CREDITORS WHO HAVE BEEN PREJUDICED BY THE IMPERFECTIONS OF A TRANSFER
ARE NORMALLY PROTECTED UNDER SECTION 70E."  H.R. REP. NO. 745, 86TH
CONG., 1ST SESS., PP. 8-9. 

FN7  SEE SELIGSON, CREDITORS' RIGHTS, JOUR.  NAT.  ASSOC. REFEREES IN
BANKRUPTCY, OCT. 1957, 113, 118; MARSH, CONSTANCE V. HARVEY - THE
"STRONG-ARM CLAUSE" RE-EVALUATED, 43 CAL. L. REV. 65; NOTE, 57 MICH. L.
REV. 1227. 

FN8  SEE, E.G., SEC. 70E, CONCERNING WHICH H.R. REP. NO. 1409, 75TH
CONG., 1ST SESS., P. 32, STATED, "  ...  UNDER SECTION 70E THE TRUSTEE
MAY AVOID ANY TRANSFER WHICH ANY CREDITOR MIGHT HAVE AVOIDED UNDER
APPLICABLE STATE LAW, AND THERE IS NO TIME LIMITATION IN SUCH CASE." 

MR. JUSTICE HARLAN:  AS THE JUDGE WHO WROTE FOR THE COURT OF APPEALS
IN CONSTANCE V. HARVEY, 215 F.2D 571, I THINK IT APPROPRIATE TO SAY
THAT I HAVE LONG SINCE COME TO THE VIEW THAT THE SECOND OPINION IN
CONSTANCE, 215 F.2D 575, WAS ILL-CONSIDERED.  I WELCOME THIS
OPPORTUNITY TO JOIN IN SETTING THE MATTER RIGHT. 
..END :









CARBO V. UNITED STATES 364 U.S. 611 


NO. 72.  ARGUED NOVEMBER 16, 1960 - DECIDED JANUARY 9, 1961 - 277 F.2D
433, AFFIRMED. 


UNDER 28 U.S.C. SEC. 2241, THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA HAD JURISDICTION IN THE CIRCUMSTANCES
OF THIS CASE TO ISSUE A WRIT OF HABEAS CORPUS AD PROSEQUENDUM DIRECTING
A NEW YORK CITY PRISON OFFICIAL TO DELIVER PETITIONER, A PRISONER OF
THAT CITY, TO CALIFORNIA FOR TRIAL ON AN INDICTMENT PENDING THERE IN
THE DISTRICT COURT.  PP. 611-622. 

(A)  AT COMMON LAW, THE TERM HABEAS CORPUS WAS A GENERIC TERM,
INCLUDING MANY SPECIES OF THAT WRIT AND INCLUDING THE WRIT OF HABEAS
CORPUS AD PROSEQUENDUM.  PP. 614-615. 

(B) THE TERRITORIAL LIMITATION IN SEC. 2241, "WITHIN THEIR RESPECTIVE
JURISDICTIONS," REFERS TO ISSUANCE OF THE GREAT WRIT, HABEAS CORPUS AD
SUBJICIENDUM, FOR AN INQUIRY INTO THE CAUSE OF RESTRAINT, WITH WHICH
THE BULK OF THE ACT IS CONCERNED, AND NOT TO WRITS OF HABEAS CORPUS AD
PROSEQUENDUM.  P. 619. 

(C)  TO THE EXTENT THAT LOWER COURT DECISIONS HAVE RELIED UPON A
CONTRARY CONSTRUCTION OF SEC. 2241, THIS COURT DISAPPROVES OF THEIR
CONCLUSIONS.  P. 621. 

CARBO V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION IN THIS CASE IS WHETHER THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA HAS JURISDICTION TO ISSUE
A WRIT OF HABEAS CORPUS AD PROSEQUENDUM DIRECTING A NEW YORK CITY
PRISON OFFICIAL TO DELIVER PETITIONER, A PRISONER OF THAT CITY, TO
CALIFORNIA FOR TRIAL ON AN INDICTMENT PENDING IN THE CALIFORNIA COURT. 
(FN1)  BOTH THE DISTRICT COURT AND THE COURT OF APPEALS HAVE HELD THAT
SUCH JURISDICTION DOES EXIST.  277 F.2D 433.  RECOGNIZING THAT THE
EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE REQUIRED OUR DECISION ON
THE POINT, WE GRANTED CERTIORARI, 363 U.S. 802.  WE AFFIRM THE
JUDGMENT. 

PETITIONER, ONE OF FIVE DEFENDANTS INDICTED ON SEPTEMBER 22, 1959, IN
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA ON CHARGES
OF EXTORTION AND CONSPIRACY, (FN2) WAS ARRESTED IN BALTIMORE, MARYLAND,
WHERE HE POSTED BOND RETURNABLE TO THE CALIFORNIA COURT.  BEFORE
APPEARING IN CALIFORNIA PURSUANT TO HIS OBLIGATION UNDER THE BOND,
PETITIONER PLEADED GUILTY TO THREE MISDEMEANOR CHARGES IN NEW YORK CITY
AND WAS SENTENCED TO SERVE A TWO-YEAR TERM IN THE NEW YORK CITY PRISON,
IN ADDITION TO PAYMENT OF A FINE.  PURSUANT TO A WRIT OF HABEAS CORPUS
AD PROSEQUENDUM ISSUING FROM THE CALIFORNIA COURT TO THE NEW YORK CITY
PRISON AUTHORITIES, THE PETITIONER APPEARED IN CUSTODY BEFORE THAT
COURT, WAS ARRAIGNED AND PLEADED NOT GUILTY TO THE INDICTMENT.  UPON
PETITIONER'S REQUEST THE COURT ORDERED THAT HE BE RETURNED TO THE NEW
YORK CITY PRISON IN CUSTODY IN ORDER TO OBTAIN COUNSEL AND THAT HE
THEREAFTER BE RETURNED (FN3) TO CALIFORNIA IN TIME FOR TRIAL ON THE
INDICTMENT SET FOR MARCH 29, 1960.  IN ORDER THAT PETITIONER MIGHT MEET
THE OBLIGATION OF HIS BOND, AS WELL AS THAT OF THE LATTER ORDER, THE
COURT, ON MARCH 16, 1960, AGAIN ISSUED A WRIT OF HABEAS CORPUS AD
PROSEQUENDUM TO THE NEW YORK CITY PRISON OFFICIAL DIRECTING THE RETURN
OF THE PETITIONER FOR TRIAL ON MARCH 29, 1960.  ON THE SAME DATE AND
BEFORE IT COULD BE SERVED, THE PETITIONER MOVED TO QUASH THE WRIT.  HIS
SOLE GROUND OF OBJECTION WAS THAT THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF CALIFORNIA HAD NO POWER TO ISSUE THE WRIT TO
AN OFFICER LOCATED OUTSIDE OF ITS TERRITORIAL LIMITS.  THE CONTENTION
IS BOTTOMED ON THE LANGUAGE OF 28 U.S.C. SEC. 2241 AS CODIFIED IN
1948.  (FN4)  WE HAVE CONCLUDED THAT THE ISSUANCE OF THE WRIT OF HABEAS
CORPUS AD PROSEQUENDUM WAS WITHIN THE JURISDICTION OF THE COURT AS
AUTHORIZED BY THE CONGRESS IN SEC. 2241. 

THIS IS THE FIRST TIME THIS COURT HAS UNDERTAKEN A CONSTRUCTION OF
THE STATUTORY AUTHORITY FOR THE ISSUANCE OF WRITS OF HABEAS CORPUS AD
PROSEQUENDUM SINCE CHIEF JUSTICE MARSHALL, IN EX PARTE BOLLMAN, 4
CRANCH 75 (1807), INTERPRETED THE LANGUAGE OF THE FIRST JUDICIARY ACT,
1 STAT. 81-82 (1789).  IT SEEMS, THEREFORE, BOTH APPROPRIATE AND IN OUR
VIEW NECESSARY TO FIRST TRACE THE COURSE FOLLOWED BY CONGRESSIONAL
ACTION GRANTING JUDICIAL POWER TO ISSUE WRITS OF HABEAS CORPUS
GENERALLY. 


"ALL THE  ...  COURTS OF THE UNITED STATES  ...  TO ISSUE WRITS OF
SCIRE FACIAS, HABEAS CORPUS, AND ALL OTHER WRITS NOT SPECIALLY PROVIDED
FOR BY STATUTE, WHICH MAY BE NECESSARY FOR THE EXERCISE OF THEIR
RESPECTIVE JURISDICTIONS, AND AGREEABLE TO THE PRINCIPLES AND USAGES OF
LAW.  AND  ... EITHER OF THE JUSTICES OF THE SUPREME COURT, AS WELL AS
JUDGES OF THE DISTRICT COURTS, SHALL HAVE POWER TO GRANT WRITS OF
HABEAS CORPUS FOR THE PURPOSE OF AN INQUIRY INTO THE CAUSE OF
COMMITMENT.  - PROVIDED, THAT WRITS OF HABEAS CORPUS SHALL IN NO CASE
EXTEND TO PRISONERS IN GAOL, UNLESS WHERE THEY ARE IN CUSTODY, UNDER OR
BY COLOUR OF THE AUTHORITY OF THE UNITED STATES, OR ARE COMMITTED FOR
TRIAL BEFORE SOME COURT OF THE SAME, OR ARE NECESSARY TO BE BROUGHT
INTO COURT TO TESTIFY."  1 STAT. 81-82 (1789). 

WE ARE INDEED FORTUNATE TO HAVE THE BENEFIT OF THE CLOSE SCRUTINY TO
WHICH CHIEF JUSTICE JOHN MARSHALL SUBJECTED SEC. 14 IN EX PARTE
BOLLMAN, SUPRA.  INITIALLY, THE CHIEF JUSTICE OBSERVED THAT "FOR THE
MEANING OF THE TERM HABEAS CORPUS, RESORT MAY UNQUESTIONABLY BE HAD TO
THE COMMON LAW; BUT THE POWER TO AWARD THE WRIT BY ANY OF THE COURTS OF
THE UNITED STATES, MUST BE GIVEN BY WRITTEN LAW."  4 CRANCH, AT 93-94. 
MINDFUL PERHAPS OF HIS OWN OBSERVATION THE PRECEDING YEAR THAT "THERE
IS SOME OBSCURITY IN THE ACT OF CONGRESS," EX PARTE BURFORD, 3 CRANCH
448, AT 449, HE THEN PROCEEDED TO ANALYZE THE MEANING OF THE WRIT AS
DESCRIBED IN SEC. 14.  HE RECOGNIZED THAT THE TERM HABEAS CORPUS "IS A
GENERIC TERM" INCLUDING MANY SPECIES OF THAT WRIT.  IT ENCOMPASSED, HE
CONCLUDED, IN ADDITION TO THE GREAT WRIT (HABEAS CORPUS AD
SUBJICIENDUM, FOR AN INQUIRY INTO THE CAUSE OF RESTRAINT) THE WRIT
HABEAS CORPUS AD PROSEQUENDUM.  THE "GREAT CHIEF JUSTICE" NOTED,
HOWEVER, THAT WHEN USED IN THE CONSTITUTION, (FN5) THAT IS, "WHEN USED
SINGLY - WHEN WE SAY THE WRIT OF HABEAS CORPUS, WITHOUT ADDITION, WE
MOST GENERALLY MEAN THAT GREAT WRIT" TRADITIONALLY USED TO TEST
RESTRAINT OF LIBERTY.  EX PARTE BOLLMAN, SUPRA, AT 95. 

THE CHIEF JUSTICE, FOLLOWING THE ENGLISH PRACTICE, PARTICULARLY 3
BLACKSTONE, COMMENTARIES *129, NOTED THAT THE WRIT AD PROSEQUENDUM WAS
NECESSARY TO REMOVE A PRISONER IN ORDER TO PROSECUTE HIM IN THE PROPER
JURISDICTION WHEREIN THE OFFENSE WAS COMMITTED.  IN HIS DISCUSSION OF
THE COMMON USAGE OF THE VARIOUS WRITS, HE RECOGNIZED IN EX PARTE
BOLLMAN, SUPRA, THAT THE CONGRESS HAD WITHOUT QUALIFICATION AUTHORIZED
THE CUSTOMARY ISSUANCE OF THE WRIT AD PROSEQUENDUM BY A JURISDICTION
NOT THE SAME AS THAT WHEREIN THE PRISONER WAS CONFINED. 

FOLLOWING THE JUDICIARY ACT OF 1789, THERE CAME A SERIES OF
LEGISLATIVE AMENDMENTS DEALING WITH HABEAS CORPUS, BUT, SIGNIFICANTLY,
ALL RELATED SOLELY TO THE USAGES OF THE GREAT WRIT.  (FN6)
SIMULTANEOUSLY WITH THE EXPANSION OF THE GREAT WRIT, THERE DEVELOPED
FROM THE COMMON SOURCE, SEC. 14 OF THE FIRST JUDICIARY ACT, A SECOND
LINE OF STATUTES - THE "ALL WRITS" PORTION OF SEC. 14, IN LARGE MEASURE
THE FIRST SENTENCE OF THAT SECTION, DEVOLVED BY A PROCESS OF ADDITION
ALONG A COURSE PARALLEL TO BUT SEPARATE FROM THE HABEAS CORPUS
PROVISIONS.  UPON REVISION OF THE FEDERAL STATUTES IN 1874, THE GENERAL
POWER OF COURTS TO ISSUE WRITS OF HABEAS CORPUS, WHICH WAS A PART OF
THE EXPRESS GRANT IN THE FIRST SENTENCE OF SEC. 14, DISAPPEARED FROM
THE LANGUAGE OF THE STATUTES DERIVATIVE FROM THE ALL WRITS PORTION OF
THE FIRST SENTENCE, R.S. SEC. 716 (1875), WHICH, AFTER FURTHER
AMENDMENT, IS KNOWN TODAY AS 28 U.S.C. SEC. 1651.  (FN7)  THIS GENERAL
POWER WAS, HOWEVER, RETAINED IN THE FIRST OF THE THREE REORGANIZED
751 (1875), (FN8) AND SERVED AS THE MODERN VERSION OF THE AUTHORITY FOR
WRITS AD PROSEQUENDUM UPON WHICH MARSHALL HAD RELIED IN EX PARTE
BOLLMAN. 

THE SECOND SECTION IN THE 1875 REVISION OF THE LAWS ON HABEAS CORPUS,
R.S. SEC. 752, AUTHORIZING ISSUANCE OF THE GREAT WRIT BY JUSTICES AND
JUDGES, INCLUDED THE JURISDICTIONAL LIMITATION (FN9) WHICH HAD BEEN
IMPOSED FOR THE FIRST TIME (FN10) IN 1867, 14 STAT. 385.  THE MOTIVE
FOR THAT LIMITATION CAN BE TRACED TO THE POSITION REPORTEDLY TAKEN BY
CHIEF JUSTICE CHASE IN REJECTING AN APPLICATION FOR THE GREAT WRIT FROM
A PRISONER ON THE GROUND THAT HE WAS INCARCERATED OUTSIDE HIS CIRCUIT. 
(FN11)  MINDFUL OF THE POSITION TAKEN BY THE CHIEF JUSTICE, THE SENATE
AMENDED THE FIRST DRAFT OF THE BILL EXPANDING ONCE AGAIN THE USAGE OF
THE GREAT WRIT AND INSERTED THE PHRASE "WITHIN THEIR RESPECTIVE
JURISDICTIONS" - AN OBVIOUS LIMITATION UPON THE ACTION OF INDIVIDUAL
JUDGES AND JUSTICES IN EXERCISING THEIR POWER TO ISSUE THE GREAT WRIT. 
THE DEBATES IN CONGRESS INDICATE THAT IT WAS THOUGHT INCONVENIENT,
POTENTIALLY EMBARRASSING, CERTAINLY EXPENSIVE AND ON THE WHOLE QUITE
UNNECESSARY TO PROVIDE EVERY JUDGE ANYWHERE WITH AUTHORITY TO ISSUE THE
GREAT WRIT ON BEHALF OF APPLICANTS FAR DISTANTLY REMOVED FROM THE
COURTS WHEREON THEY SAT.  (FN12) 

THE THIRD SECTION IN THE REVISED ARRANGEMENT, R.S. SEC. 753,
COLLECTED ALL THE INSTANCES IN WHICH THE GREAT WRIT MIGHT ISSUE ON
BEHALF OF IMPRISONED APPLICANTS. 

FROM THIS HISTORY IT BECOMES OBVIOUS THAT THE CONGRESS HAD CONTINUAL
CONCERN FOR THE GREAT WRIT - HABEAS CORPUS AD SUBJICIENDUM. 
EXCLUSIVELY TO IT DID IT GIVE ATTENTION, AND ONLY UPON ITS ISSUANCE DID
IT IMPOSE A LIMITATION.  THE OTHER SPECIES OF THE WRIT, INCLUDING THAT
INVOLVED HERE - HABEAS CORPUS AD PROSEQUENDUM - CONTINUED TO DERIVE
AUTHORITY FOR THEIR ISSUANCE FROM WHAT HAD BEEN THE FIRST SENTENCE OF
SEC. 14 OF THE FIRST JUDICIARY ACT, WHICH WAS NOT REPEALED UNTIL THE
1875 REVISION OF THE STATUTES AT LARGE, WHEN IT WAS RE-ENACTED AS TWO
SEPARATE AND DISTINCT SECTIONS, R.S. SEC. 716 (ALL-WRITS) AND R.S. SEC.
751 (GENERAL HABEAS CORPUS). 

THE CONGRESS HAD OBVIOUSLY MADE AN ATTEMPT TO COMPLETELY SEPARATE THE
HABEAS CORPUS PROVISIONS FROM THOSE CONCERNING OTHER WRITS.  HOWEVER,
JUST AS IN 1789 MARSHALL HAD FOUND AUTHORITY FOR THE WRIT AD
PROSEQUENDUM IN THE REFERENCE TO HABEAS CORPUS IN THE FIRST SENTENCE OF
SEC. 14, SO TOO IN 1875 ITS AUTHORITY WAS CONSTITUTED IN THE LINEAL
DERIVATIVE OF THAT SENTENCE, R.S. SEC. 751, WHICH GAVE COURTS WITHOUT
JURISDICTIONAL LIMITATION, AS DISTINGUISHED FROM INDIVIDUAL JUDGES,
R.S. SEC. 752, THE POWER TO ISSUE WRITS OF HABEAS CORPUS GENERALLY. 
STATE V. SULLIVAN, 50 F. 593, 598.  CLEARLY, THE USE OF THE PHRASE IN
SEC. 751 WAS GENERIC, WHEREAS THE GRANT OF AUTHORITY TO JUDGES "WITHIN
THEIR RESPECTIVE JURISDICTIONS" IN R.S. SEC. 752 WAS SPECIFIC, MEANING
ONLY THE GREAT WRIT.  (FN13) 

THUS, THE AD PROSEQUENDUM WRIT, NECESSARY AS A TOOL FOR
JURISDICTIONAL POTENCY AS WELL AS ADMINISTRATIVE EFFICIENCY, EXTENDED
TO THE ENTIRE COUNTRY.  THE GREAT WRIT, HOWEVER, DESIGNED TO RELIEVE AN
INDIVIDUAL FROM OPPRESSIVE CONFINEMENT, COULD WELL HAVE BEEN AND
PROPERLY WAS, AT LEAST AS EARLY AS 1842, (FN14) ISSUABLE ONLY IN THE
DISTRICT OF CONFINEMENT.  THIS WAS IN CONSONANCE WITH CONVENIENCE,
NECESSITY AND AVOIDANCE OF INORDINATE EXPENSE - CONSIDERATIONS
REMARKABLY UNPERSUASIVE WHEN VIEWED IN LIGHT OF THE ROLE OF THE WRIT AD
PROSEQUENDUM. 

THIS SAME TRICHOTOMY OF SECTIONS IN THE REVISED STATUTES, SETTING OUT
THE STATUTORY AUTHORITY FOR HABEAS CORPUS, WAS CONTINUED THROUGH THE
1911 REVISION OF THE JUDICIAL CODE WHICH DID NOT AFFECT BY REPEAL OR
SIGNIFICANT AMENDMENT THE EXISTING LAW ON THE WRITS.  (FN15)  IN 1925,
WHEN THE JUDICIAL CODE WAS AMENDED, 43 STAT. 940, SOME ATTENTION WAS
AGAIN PAID TO HABEAS CORPUS, BUT ONLY TO ASSIGN TO INDIVIDUAL JUDGES OF
THE COURTS OF APPEALS THE SAME POWER WITHIN THEIR CIRCUITS AS DISTRICT
COURT JUDGES HAD WITHIN THEIR DISTRICTS - AN OBVIOUS ADHERENCE TO THE
TRADITION EMBODIED IN R.S. SEC. 752 WHICH DEALT ONLY WITH THE GREAT
WRIT AND IMPOSED THE JURISDICTIONAL LIMITATIONS ON ITS ISSUANCE.  IN
1948, WHEN FURTHER CLARIFICATION OF THE U.S.C. (FN16) WAS THOUGHT
DESIRABLE, THE STATUTE TOOK ITS PRESENT FORM, AND FOR THE FIRST TIME IN
THE LEGISLATIVE HISTORY OF THE WRIT OF HABEAS CORPUS THERE WAS MADE
EXPLICIT REFERENCE TO THE WRIT AD PROSEQUENDUM IN A STATUTE.  (FN17)
ALTHOUGH THE THREE SECTIONS WERE MERGED INTO ONE, IT WAS DONE ONLY
"WITH CHANGES IN PHRASEOLOGY NECESSARY TO EFFECT THE CONSOLIDATION." 
SPECIFICALLY DISCLAIMED WAS ANY INTENT TO CHANGE THE EXISTING LAW ON
HABEAS CORPUS.  THAT THE REVISOR CONSIDERED THE NEW SECTION TO DEAL
ALMOST EXCLUSIVELY WITH THE GREAT WRIT, IN SPITE OF ITS AUTHORIZATION
OF WRITS AD TESTIFICANDUM AND AD PROSEQUENDUM, IS OBVIOUS FROM HIS OWN
NOTE:  "WORDS 'FOR THE PURPOSE OF AN INQUIRY INTO THE CAUSE OF
RESTRAINT OF LIBERTY' ...  WERE OMITTED AS MERELY DESCRIPTIVE OF THE
WRIT."  (FN18)  HOWEVER, AS RECONSTRUCTED IN SEC. 2241, THE AUTHORITY
OF COURTS, AS WELL AS OF INDIVIDUAL JUSTICES AND JUDGES, WAS NOW
PROVIDED IN A SINGLE SENTENCE WHICH OSTENSIBLY IMPOSED UPON ALL THE
SAME JURISDICTIONAL LIMITATION PREVIOUSLY IMPOSED ONLY AS TO THE GREAT
WRIT'S ISSUANCE BY INDIVIDUAL JUDGES. 

SINCE FROM ITS FIRST USAGE THE LIMITING PHRASE HAD ALWAYS BEEN A
QUALIFICATION OF THE AUTHORITY OF INDIVIDUAL JUDGES TO ISSUE THE GREAT
WRIT, WE SEE NO REASON TO READ INTO THE NEW CODIFICATION A CHANGE OF
MEANING SPECIFICALLY DISCLAIMED BY THE REVISOR.  IT IS OUR CONCLUSION,
THEREFORE, THAT THE TERRITORIAL LIMITATION REFERS SOLELY TO ISSUANCE OF
THE GREAT WRIT WITH WHICH THE BULK OF THE SECTION IS CONCERNED. 

WE FEEL THAT THERE IS NO INDICATION THAT THERE IS REQUIRED TODAY A
MORE RESTRICTED VIEW OF THE WRIT HABEAS CORPUS AD PROSEQUENDUM THAN WAS
NECESSARY IN 1807 WHEN CHIEF JUSTICE MARSHALL CONSIDERED IT.  CASES
REPORTED FROM AT LEAST THREE CIRCUIT COURTS OF APPEALS, INVOLVING
EXTRATERRITORIAL WRITS AD PROSEQUENDUM ISSUED BOTH BEFORE AND AFTER THE
1948 REVISION, TAYLOR V. UNITED STATES, 238 F.2D 259 (C.A.D.C. CIR.);
UNITED STATES EX REL.  MOSES V. KIPP, 232 F.2D 147 (C.A. 7TH CIR.);
HILL V. UNITED STATES, 186 F.2D 669 (C.A. 10TH CIR.); AND PERHAPS FOUR,
CF. VANOVER V. COX, 136 F.2D 442 (C.A. 8TH CIR.), INDICATE AS AN
ACCEPTED, OR AT LEAST THERE UNCHALLENGED, (FN19) INTERPRETATION OF THE
STATUTES, THAT THE WRIT SUFFERS NO GEOGRAPHICAL LIMITATIONS IN ITS
USE.    MOREOVER, THIS CONSTRUCTION APPEARS NEITHER STRAINED NOR
ANOMALOUS.  MUCH WAS BORROWED FROM OUR ENGLISH BRETHREN.  ALTHOUGH OUR
OWN PRACTICE HAS LIMITED THE JURISDICTION OF COURTS AND JUSTICES TO
ISSUE THE GREAT WRIT, WE HAVE NEVER ABANDONED THE ENGLISH SYSTEM AS TO
THE AD PROSEQUENDUM WRIT.  CF. 1 CHITTY'S CRIMINAL LAW 132 (1847), AND
4 BACON'S ABRIDGMENT 566 (1856) FOR DISCUSSION OF SIMILAR PROCESS. 
AFTER ALMOST TWO HUNDRED YEARS, WE CANNOT NOW SAY IT HAS BEEN ABANDONED
BY A CONGRESS WHICH EXPRESSLY SAID IT INTENDED TO MAKE NO SUBSTANTIVE
CHANGES.  THE MORE STRONGLY ARE WE LED TO THIS CONSTRUCTION BY
RECOGNITION OF THE CONTINUALLY INCREASING IMPORTANCE ASSIGNED TO
AUTHORIZING EXTRATERRITORIAL PROCESS WHERE PATENTLY DESIRABLE.  CF.
FED. RULES CRIM. PROC., 4(C)(2) AND 17(E)(1).  AND IT IS THE MORE SO
HERE WHERE AN ACCOMMODATION IS SO IMPORTANT BETWEEN THE FEDERAL AND
STATE AUTHORITIES.  HEBERT V. LOUISIANA, 272 U.S. 312, 315-316 (1926). 
THIS COMITY IS NECESSARY BETWEEN SOVEREIGNTIES IN THE ADMINISTRATION OF
CRIMINAL JUSTICE IN OUR FEDERAL-STATE SYSTEM IS GIVEN FULL RECOGNITION
BY AFFORDING THROUGH THE USE OF THE WRIT BOTH RESPECT AND COURTESY TO
THE LAWS OF THE RESPECTIVE JURISDICTIONS.  (FN20) 

VIEWED IN LIGHT OF THIS HISTORY, PETITIONER'S RELIANCE UPON CASES
DEALING SOLELY WITH TERRITORIAL LIMITATIONS UPON ISSUANCE OF THE GREAT
WRIT AND THE CRIMINAL PROCESS AUTHORIZED BY 28 U.S.C. SEC. 1651(A),
UNRELATED TO HABEAS CORPUS, IS MISPLACED.  AHRENS V. CLARK, 335 U.S.
188 (1948), IS CLEARLY INAPPOSITE AS IS ALSO UNITED STATES V. HAYMAN,
342 U.S. 205 (1952), IN WHICH HABEAS CORPUS WAS NOT EVEN INVOLVED. 
(FN21)  TO THE EXTENT THAT LOWER COURT DECISIONS HAVE RELIED UPON A
CONTRARY CONSTRUCTION OF SEC. 2241, WE DISAPPROVE OF THEIR
CONCLUSIONS.  (FN22) 

EVEN WERE WE TO HAVE AGREED WITH PETITIONER'S ARGUMENT, WE WOULD
NONETHELESS BE CONSTRAINED TO RECOGNIZE THAT, WITHIN THE MODERN
ATTITUDE ADOPTED IN EX PARTE ENDO, 323 U.S. 283 (1944), RIGID FORMULAE,
EVEN AS TO THE ISSUANCE OF THE GREAT WRIT, MAY BE TEMPERED BY FACTUAL
CONSIDERATIONS REQUIRING THE DECISION THAT ITS "OBJECTIVE MAY BE IN NO
WAY IMPAIRED OR DEFEATED BY THE REMOVAL OF THE PRISONER FROM THE
TERRITORIAL JURISDICTION OF THE DISTRICT COURT" AFTER THE SUIT IS
BEGUN.  AT 307.  SUCH FACTS ARE PRESENT HERE.  PETITIONER CARBO FILED
AN APPEARANCE BOND, AND SUBMITTED HIMSELF TO THE JURISDICTION OF THE
DISTRICT COURT BY HIS PERSONAL APPEARANCE AND PLEA OF NOT GUILTY UPON
ARRAIGNMENT.  PERMISSION FOR HIS RETURN TO NEW YORK BEFORE TRIAL WAS
GRANTED ONLY HIS PROMISE TO RETURN AND THE CONDITION THAT HE DO SO.
IMPLICIT IN HIS REQUEST FOR THE ORDER OF RETURN TO NEW YORK WAS HIS
CONSENT TO THE OBLIGATION IMPOSED UPON HIS CUSTODIANS TO RETURN HIM TO
CALIFORNIA PROMPTLY.  THE SECOND WRIT OF HABEAS CORPUS AD PROSEQUENDUM,
THE ONLY WRIT HERE INVOLVED, SERVED ONLY AS ASSURANCE TO PETITIONER AND
TO THE COURT THAT HE WOULD NOT SUFFER DEFAULT IN THE OBLIGATION OF HIS
BAIL.  JUST AS THE MERE SUBSEQUENT REMOVAL OF THE PRISONER IN ENDO
FAILED TO RENDER THAT APPLICATION BEYOND THE COURT'S POWER TO CONSIDER,
SO TOO HERE, IN A SIMILAR VEIN, WE CANNOT SAY THAT THESE FACTORS HAVE
FASTENED ONTO PETITIONER SO UNSECURE A LEASH AS TO SUFFER HIS ESCAPE
FROM THE JURISDICTION OF THE CALIFORNIA COURT.  WE MUST, THEREFORE, IN
ANY EVENT, AFFIRM ON THESE FACTS.  AFFIRMED. 

FN1  THE GOVERNMENT HAS RAISED THE QUESTION OF PETITIONER'S STANDING
TO CHALLENGE THE WRIT (CF. PONZI V. FESSENDEN, 258 U.S. 254), WHICH
POINT IT WAIVED BY STIPULATION IN THE COURT OF APPEALS.  IN LIGHT OF
THE CIRCUMSTANCES UNDER WHICH THE CASE REACHES US WE DO NOT BELIEVE
THAT THE POINT IS WELL TAKEN. 

FN2  18 U.S.C. SECS. 875, 1951. 

FN3  THE ORDER WAS AS FOLLOWS: 

"DEFENDANT APPEARS WITHOUT COUNSEL AND REQUESTS PERMISSION TO ENTER
HIS PLEA AND BE PERMITTED TO RETURN TO NEW YORK AND OBTAIN COUNSEL
THERE AND RETURN HERE FOR TRIAL. 

"DEFENDANT CARBO PLEADS NOT GUILTY  ...  . 

"COURT ORDERS CAUSE AS TO DEFENDANT CARBO SET FOR TRIAL WITH
CODEFENDANTS ON MARCH 29, 1960, 9:30 AM, AND DIRECTS THAT DEFENDANT
CARBO BE RETURNED TO NEW YORK FOR THE PURPOSE OF OBTAINING COUNSEL AND
BE RETURNED HERE IN TIME FOR TRIAL." 

FN4  28 U.S.C. SEC. 2241 PROVIDES: 

"(A)  WRITS OF HABEAS CORPUS MAY BE GRANTED BY THE SUPREME COURT, ANY
JUSTICE THEREOF, THE DISTRICT COURTS AND ANY CIRCUIT JUDGE WITHIN THEIR
RESPECTIVE JURISDICTIONS.  THE ORDER OF A CIRCUIT JUDGE SHALL BE
ENTERED IN THE RECORDS OF THE DISTRICT COURT OF THE DISTRICT WHEREIN
THE RESTRAINT COMPLAINED OF IS HAD. 

     *         *         *         * * 

"(C)  THE WRIT OF HABEAS CORPUS SHALL NOT EXTEND TO A PRISONER
UNLESS: 

"(1)  HE IS IN CUSTODY UNDER OR BY COLOR OF THE AUTHORITY OF THE
UNITED STATES OR IS COMMITTED FOR TRIAL BEFORE SOME COURT THEREOF; OR: 

"(2)  HE IS IN CUSTODY FOR AN ACT DONE OR OMITTED IN PURSUANCE OF AN
ACT OF CONGRESS, OR AN ORDER, PROCESS, JUDGMENT OR DECREE OF A COURT OR
JUDGE OF THE UNITED STATES; OR: 

"(3)  HE IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS OR
TREATIES OF THE UNITED STATES; OR: 

"(4)  HE, BEING A CITIZEN OF A FOREIGN STATE AND DOMICILED THEREIN IS
IN CUSTODY FOR AN ACT DONE OR OMITTED UNDER ANY ALLEGED RIGHT  ...  ;
OR: 

"(5)  IT IS NECESSARY TO BRING HIM INTO COURT TO TESTIFY OR FOR
TRIAL." 

FN5  ART. I, SEC. 9, CL. 2. 

FN6  THE HABEAS CORPUS PROVISIONS OF SEC. 14 OF THE ORIGINAL
JUDICIARY ACT, 1 STAT. 81 (1789), WERE AMENDED BY 4 STAT. 634 (1833), 5
STAT. 539 (1842), 14 STAT. 385 (1867), R.S. SECS. 752-753 (1875), AND
43 STAT. 940 (1925). 

FN7  R.S. SEC. 716 (1875):  "THE SUPREME COURT AND THE CIRCUIT AND
DISTRICT COURTS SHALL HAVE POWER TO ISSUE WRITS OF SCIRE FACIAS.  THEY
SHALL ALSO HAVE POWER TO ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED FOR
BY STATUTE, WHICH MAY BE NECESSARY FOR THE EXERCISE OF THEIR RESPECTIVE
JURISDICTIONS, AND AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW." 

FN8  R.S. SEC. 751 (1875):  "THE SUPREME COURT AND THE CIRCUIT AND
DISTRICT COURTS SHALL HAVE POWER TO ISSUE WRITS OF HABEAS CORPUS." 

FN9  R.S. SEC. 752 (1875):  "THE SEVERAL JUSTICES AND JUDGES OF THE
SAID COURTS, WITHIN THEIR RESPECTIVE JURISDICTIONS, SHALL HAVE POWER TO
GRANT WRITS OF HABEAS CORPUS FOR THE PURPOSE OF AN INQUIRY INTO THE
CAUSE OF RESTRAINT OF LIBERTY." 

FN10  ACTUALLY, THE 1842 EXTENSION OF THE GREAT WRIT'S AVAILABILITY
TO IMPRISONED APPLICANTS, 5 STAT. 539, HAD IMPOSED A JURISDICTIONAL
LIMITATION UPON ITS ISSUANCE - POWER TO GRANT APPLICATIONS BY FOREIGN
CITIZENS WAS GIVEN ONLY TO JUSTICES OF THE SUPREME COURT, AND TO JUDGES
OF THE DISTRICT COURT IN THE DISTRICT OF CONFINEMENT. 

FN11  THIS DECISION, UNREPORTED, WOULD APPEAR CONSONANT WITH A
LEGITIMATE INFERENCE DRAWN FROM THE JURISDICTIONAL LIMITATION EXPRESSED
IN 1842, CF. NOTE 10, SUPRA, THAT JUSTICES OF THE SUPREME COURT SHOULD
LIMIT THEIR CONSIDERATIONS TO APPLICATIONS FROM WITHIN THEIR ASSIGNED
CIRCUITS, JUST AS DISTRICT JUDGES WERE LIMITED TO THEIR DISTRICT. 

FN12  CONG. GLOBE, PART 1, P. 730; PART 2, PP. 790, 899, 39TH CONG.,
2D SESS. 

FN13  WE DO NOT DECIDE WHETHER THE WRIT HABEAS CORPUS AD
TESTIFICANDUM WAS INTENDED BY CONGRESS TO BE SUBJECT TO THE 1867
JURISDICTIONAL LIMITATION.  CF. EDGERLY V. KENNELLY, 215 F.2D 420. 

FN14  SEE NOTE 10, SUPRA. 

FN15  36 STAT. 1167. 

FN16  R.S. SECS. 751-753 (1875) WERE AT THAT TIME INCLUDED AS SECS.
451-453 OF 28 U.S.C. (1946 ED.). 

FN17  SEE NOTE 4, SUPRA. 

FN18  H.R. REP. NO. 2646, 79TH CONG., 2D SESS., P. A169; H.R. REP.
NO. 308, 80TH CONG., 1ST SESS., PP. A177-A178. 

FN19  WE ARE NOT UNMINDFUL OF THE TERSE THIRD CIRCUIT DICTUM TO THE
CONTRARY IN YODOCK V. UNITED STATES, 196 F.2D 1018, AND THE DIVERGENT
VIEW OF AT LEAST TWO DISTRICT COURTS.  HOWEVER, PHILLIPS V. HIATT, 83
F. SUPP. 935, CONSIDERED SEC. 2241 AS DERIVED SOLELY FROM R.S. SEC. 752
(1875); AND IN THE MATTER OF KAROL VAN COLLINS, 160 F. SUPP. 165,
RELIED, WITHOUT DISTINCTION, UPON AHRENS V. CLARK, 335 U.S. 188, WHICH
DEALT ONLY WITH THE GREAT WRIT. 

FN20  IN VIEW OF THE COOPERATION EXTENDED BY THE NEW YORK AUTHORITIES
IN HONORING THE WRIT, IT IS UNNECESSARY TO DECIDE WHAT WOULD BE THE
EFFECT OF A SIMILAR WRIT ABSENT SUCH COOPERATION. 

FN21  THAT CASE, AS WELL AS PRICE V. JOHNSTON, 334 U.S. 266, DEALT
WITH PROCESS IN THE NATURE OF HABEAS CORPUS, THE AUTHORITY FOR WHICH
WAS NOT DERIVED FROM THE HABEAS CORPUS STATUTES. 

FN22  SEE NOTE 19, SUPRA. 

MR. JUSTICE WHITTAKER, BELIEVING THAT, ON THE PECULIAR FACTS HERE
INVOLVED, THE WRIT, THOUGH DENOMINATED "HABEAS CORPUS AD PROSEQUENDUM,"
HAD THE EFFECT OF AND PROPERLY SHOULD BE REGARDED AS A SUBPOENA ISSUED
UNDER PARAGRAPH (A) AND PROPERLY SERVED UNDER PARAGRAPH (E)(1) OF RULE
17 OF FEDERAL RULES OF CRIMINAL PROCEDURE, CONCURS IN THE RESULT OF THE
COURT'S OPINION. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK JOINS,
DISSENTING. 

I CANNOT AGREE WITH THE DECISION OF THE COURT.  WE HAVE SAID THAT
"APART FROM SPECIFIC EXCEPTIONS CREATED BY CONGRESS THE JURISDICTION OF
THE DISTRICT COURTS IS TERRITORIAL," AHRENS V. CLARK, 335 U.S. 188,
190, AND THAT AS A GENERAL RULE "A UNITED STATES DISTRICT COURT CANNOT
ISSUE PROCESS BEYOND THE LIMITS OF THE DISTRICT."  GEORGIA V.
PENNSYLVANIA R. CO., 324 U.S. 439, 467-468.  THESE PRINCIPLES WERE
APPLIED TO WRITS OF HABEAS CORPUS AD SUBJICIENDUM IN AHRENS V. CLARK,
SUPRA, WHERE WE HELD THAT THE WORDS "WITHIN THEIR RESPECTIVE
JURISDICTIONS" AS USED IN 28 U.S.C. SEC. 2241 CREATED A TERRITORIAL
LIMITATION UPON THE HABEAS CORPUS JURISDICTION OF FEDERAL JUDGES AND
COURTS.  TODAY WE ARE DEPARTING FROM AHRENS AND THE PRINCIPLES ON WHICH
OUR DECISION IN THAT CASE RESTED, FOR THE COURT HOLDS THAT THE
RESTRICTIVE LANGUAGE OF SEC. 2241 IS INAPPLICABLE TO WRITS OF HABEAS
CORPUS AD PROSEQUENDUM.  I CAN SEE NO JUSTIFICATION FOR THESE VARIANT
INTERPRETATIONS OF THE SAME LANGUAGE IN THE SAME STATUTE. 

WE ARE NOT HELPED BY THE TORTURED HISTORY OF SEC. 2241 AND ITS
ANTECEDENTS, SINCE THE LEGISLATIVE MATERIAL RELIED ON BY THE COURT IS,
TO SAY THE LEAST, AMBIGUOUS, (FN1) AND COULD BE USED TO SUPPORT
INFERENCES DIAMETRICALLY OPPOSED TO THOSE DRAWN BY THE COURT.  FOR
EXAMPLE, THE FACT THAT THE FIRST STATUTORY REFERENCE TO THE WRIT OF
HABEAS CORPUS AD PROSEQUENDUM DOES NOT APPEAR UNTIL THE ENACTMENT OF
SEC. 2241 REASONABLY IMPLIES THAT NONE OF THE PRIOR STATUTORY HISTORY
IS RELEVANT INSOFAR AS THAT WRIT IS CONCERNED, AND THAT IN CODIFYING A
UNIFIED HABEAS CORPUS STATUTE IN 1948, CONGRESS INTENDED THE
RESTRICTIVE LANGUAGE OF THE FIRST PARAGRAPH OF SEC. 2241 TO APPLY TO
ALL OF THE WRITS THEREAFTER ENUMERATED, AMONG WHICH ARE BOTH THE WRIT
AD SUBJICIENDUM AND THE WRIT AD PROSEQUENDUM. 

ALTHOUGH THE SPECIFIC QUESTION PRESENTED BY THIS CASE IS A MATTER OF
FIRST IMPRESSION FOR US, THE COURT CONCLUDES THAT, SINCE THREE, AND
PERHAPS FOUR, CIRCUIT COURTS OF APPEALS HAVE UPHELD THE ISSUANCE OF
EXTRATERRITORIAL WRITS AD PROSEQUENDUM, ITS INTERPRETATION OF THE
STATUTE HAS BECOME AN "ACCEPTED" ONE.  BUT AT THE SAME TIME, THE COURT
RECOGNIZES THAT THERE ARE OTHER CASES IN WHICH LOWER COURTS HAVE
"RELIED UPON A CONTRARY CONSTRUCTION OF SEC. 2241."  IN EACH OF THESE
CASES, THE DISTRICT COURT OVERRULED A DEFENDANT'S REQUEST FOR A SPEEDY
TRIAL BY HOLDING THAT SINCE ITS ORDERS COULD NOT "RUN BEYOND ITS
TERRITORIAL JURISDICTION," IT HAD NO POWER TO ISSUE A WRIT AD
PROSEQUENDUM TO BRING TO TRIAL A DEFENDANT WHO WAS INCARCERATED OUTSIDE
OF ITS DISTRICT.  IN THE MATTER OF VAN COLLINS, 160 F. SUPP. 165, 167
(D.C. ME.); PHILLIPS V. HIATT, 83 F. SUPP. 935, 938 (D.C. DEL.).  CF.
EDGERLY V. KENNELLY, 215 F.2D 420 (C.A. 7TH CIR.); YODOCK V. UNITED
STATES, 196 F.2D 1018 (C.A. 3D CIR.).  IN VIEW OF THESE CASES, IT CAN
HARDLY BE SAID THAT THE COURT'S INTERPRETATION HAS BECOME A GENERALLY
"ACCEPTED" ONE. 

THE COURT BELOW JUSTIFIED THE DISTRICT COURT'S ACTION NOT UPON SEC.
2241, BUT RATHER UPON THE ALL WRITS STATUTE, 28 U.S.C. SEC. 1651.  THIS
COURT REFRAINS FROM RELYING ON THAT SECTION, AS, INDEED, IT SHOULD,
SINCE THE GENERAL PROVISIONS OF SEC. 1651 SHOULD NOT BE READ AS
EXPANDING THE JURISDICTIONAL LIMITATIONS CREATED BY CONGRESS WITH
REGARD TO A SPECIFIC WRIT.  (FN2)  SEE PRICE V. JOHNSTON, 334 U.S. 266,
279; ADAMS V. MCCANN, 317 U.S. 269, 272-273. 

I DO NOT SAY THAT THE FEDERAL COURTS SHOULD NOT HAVE THE POWER TO
ISSUE EXTRATERRITORIAL WRITS AD PROSEQUENDUM.  THERE ARE PERSUASIVE
REASONS FOR CONFERRING SUCH AUTHORITY UPON THE COURTS, AND CONGRESS IS
PERFECTLY FREE TO DO SO.  HOWEVER, IF THE JURISDICTION OF THE FEDERAL
COURTS IS TO BE EXPANDED, AND IF THE TRADITIONAL TERRITORIAL LIMITATION
IS TO BE ABANDONED, THEN CONGRESS SHOULD SPECIFICALLY SO INDICATE. 
(FN3)  BUT CONGRESS HAS NOT DONE SO, AND UNTIL IT DOES, WE SHOULD NOT
TAMPER WITH THE PRESENT STATUTORY SCHEME, EXCEPT BY FOLLOWING THE
CUSTOMARY PROCEDURE OF ADOPTING A SPECIAL RULE AND SUBMITTING IT TO
CONGRESS FOR APPROVAL.  CF. RULES 4(C)(2), 17 (E)(1), FED. RULES CRIM.
PROC. 

FINALLY, I MUST ADD A FEW WORDS CONCERNING THE COURT'S DICTUM THAT,
REGARDLESS OF THE INTERPRETATION PLACED UPON SEC. 2241, THE CALIFORNIA
DISTRICT COURT HAD JURISDICTION TO ISSUE THE WRIT BECAUSE THE
PETITIONER HAD PREVIOUSLY APPEARED IN THAT COURT, HAD ENTERED A PLEA OF
NOT GUILTY, AND HAD BEEN PERMITTED TO RETURN TO NEW YORK TO OBTAIN
COUNSEL ON CONDITION THAT HE WOULD COME BACK TO CALIFORNIA FOR TRIAL. 
IT IS SAID THAT BY VIRTUE OF THIS APPEARANCE, THE DISTRICT COURT HAD
"FASTENED  ...  A LEASH" ON THE PETITIONER, AND THAT THIS "LEASH"
SUPPORTED THE ISSUANCE OF THE WRIT AD PROSEQUENDUM.  HOWEVER, THE COURT
IGNORES THE FACT THAT PETITIONER'S INITIAL APPEARANCE IN CALIFORNIA WAS
ALSO OBTAINED BY MEANS OF A WRIT OF HABEAS CORPUS AD PROSEQUENDUM
ADDRESSED TO THE AUTHORITIES OF THE NEW YORK CITY PRISON.  IT ILL
BEHOOVES THE COURT TO ATTEMPT TO JUSTIFY THE ISSUANCE OF AN
UNAUTHORIZED WRIT OF HABEAS CORPUS BY RELYING UPON JURISDICTION THAT
WAS ACQUIRED BY AN EQUALLY UNAUTHORIZED WRIT.  (FN4)  THIS THEORY
INTRODUCES AN UNWISE AND JUDICIALLY ENGRAFTED BOOTSTRAP EXCEPTION TO
SEC. 2241.  IN MY OPINION, THE "LEASH" RELIED UPON BY THE COURT IS IN
REALITY NO MORE THAN A ROPE OF SAND.    FN1  CHIEF JUSTICE TAFT,
SPEAKING FOR THE COURT IN PONZI V. FESSENDEN, 258 U.S. 254, CONSTRUED
SEC. 753 OF THE REVISED STATUTES, ONE OF THE ENACTMENTS RELIED UPON BY
THE COURT, AS IMPOSING A TERRITORIAL LIMITATION UPON THE DISTRICT
COURT'S POWER TO ISSUE A WRIT OF HABEAS CORPUS AD PROSEQUENDUM.  HE
SAID: 

"UNDER STATUTES PERMITTING IT, HE (THE PRISONER) MIGHT HAVE BEEN
TAKEN UNDER THE WRIT OF HABEAS CORPUS TO GIVE EVIDENCE IN A FEDERAL
COURT, OR TO BE TRIED THERE IF IN THE SAME DISTRICT, SEC. 753, REV.
STATS  ...  ."  ID., AT 261. 

FN2  THE LOWER COURT'S RELIANCE UPON UNITED STATES V. HAYMAN, 342
U.S. 205, IS MISPLACED.  THERE THE COURT UPHELD THE ISSUANCE OF AN
EXTRATERRITORIAL WRIT IN THE NATURE OF HABEAS CORPUS, SAYING THAT THE
AUTHORITY TO ISSUE THE WRIT UNDER SEC. 1651 WAS NECESSARILY INFERRED
FROM THE PROVISIONS OF 28 U.S.C. SEC. 2255.  THIS CASE DOES NOT INVOLVE
SEC. 2255; NOR DOES IT INVOLVE ANY OTHER STATUTE WHICH COULD BE READ AS
CONFERRING EXTRATERRITORIAL AUTHORITY UPON THE FEDERAL COURTS. 

FN3  IN THOSE FEW INSTANCES WHEN CONGRESS INTENDED TO EXTEND THE
TERRITORIAL JURISDICTION OF THE FEDERAL COURTS, IT HAS SPECIFICALLY AND
UNAMBIGUOUSLY INDICATED THAT INTENT.  SEE RULES 4(C)(2) AND 17(E)(1),
FED. RULES CRIM. PROC., WHICH READ: 

"RULE 4.  WARRANT OR SUMMONS UPON COMPLAINT. 

     *         *         *         *         * 

"(C)  EXECUTION OR SERVICE; AND RETURN. 

     *         * *         *         * 

"(2)  TERRITORIAL LIMITS.  THE WARRANT MAY BE EXECUTED OR THE SUMMONS
MAY BE SERVED AT ANY PLACE WITHIN THE JURISDICTION OF THE UNITED
STATES." 

"RULE 17.  SUBPOENA. 

     *         *         *         *         * 

"(E)  PLACE OF SERVICE. 

"(1)  IN UNITED STATES.  A SUBPOENA REQUIRING THE ATTENDANCE OF A
WITNESS AT A HEARING OR TRIAL MAY BE SERVED AT ANY PLACE WITHIN THE
UNITED STATES." 

FN4  THE COURT'S RELIANCE UPON EX PARTE ENDO, 323 U.S. 283, IS
MISPLACED, BECAUSE THE DISTRICT COURT'S INITIAL JURISDICTION IN THAT
CASE WAS UNQUESTIONABLY PROPER IN ALL RESPECTS. 
..END :















DENVER CHICAGO TRANSPORT CO., INC. V. UNITED STATES 364 U.S. 627 


NO. 503.  DECIDED JANUARY 9, 1961 - 183 F. SUPP. 785, AFFIRMED. 


DENVER CHICAGO TRANSPORT CO., INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















OREGON-NEVADA-CALIFORNIA FAST FREIGHT, INC. V. STEWART 364 U.S. 627 


NO. 521.  DECIDED JANUARY 9, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  223 ORE.  314, 353
P.2D 541. 


OREGON-NEVADA-CALIFORNIA FAST FREIGHT, INC., V. STEWART ET AL. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















WORTHINGTON CORP. V. MLODOZENIEC 364 U.S. 628 


NO. 515.  DECIDED JANUARY 9, 1961.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  SEE 9 APP. DIV. 2D 21, 189 N.Y.S.2D 468. 


WORTHINGTON CORP. V. MLODOZENIEC ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















COUNTY OF LAWRENCE V. UNITED STATES 364 U.S. 628 


NO. 528.  DECIDED JANUARY 9, 1961 - 280 F.2D 462, AFFIRMED. 


COUNTY OF LAWRENCE ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SYLVANDER V. FARMERS & TRADERS LIFE INSURANCE CO. 364 U.S. 629 


NO. 529.  DECIDED JANUARY 9, 1961 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  SEE 9 APP. DIV. 2D
1019, 196 N.Y.S.2D 592. 


SYLVANDER ET AL. V. FARMERS & TRADERS LIFE INSURANCE CO. ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BELTOWSKI V. RIGG 364 U.S. 629 


NO. 405, MISC.  DECIDED JANUARY 9, 1961. 


BELTOWSKI V. RIGG, WARDEN. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















RIDGWAY NATIONAL BANK V. PENNSYLVANIA 364 U.S. 630 


NO. 516.  DECIDED JANUARY 9, 1961.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  400 PA. 261, 161 A.2D 390. 


RIDGWAY NATIONAL BANK ET AL. V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















REINA V. UNITED STATES 364 U.S. 507 


NO. 29.  ARGUED NOVEMBER 7-8, 1960 - DECIDED DECEMBER 19, 1960 - 273
F.2D 234, AFFIRMED. 


WHILE SERVING A SENTENCE FOR A FEDERAL NARCOTICS OFFENSE, PETITIONER
WAS SUMMONED BEFORE A FEDERAL GRAND JURY AND ASKED QUESTIONS CONCERNING
HIS CRIME, PARTICULARLY AS TO THE PERSONS INVOLVED WITH HIM AND THEIR
ACTIVITIES IN SMUGGLING NARCOTICS INTO THIS COUNTRY FROM EUROPE.  HE
INVOKED HIS PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE FIFTH
AMENDMENT AND REFUSED TO ANSWER.  ACTING PURSUANT TO 18 U.S.C. SEC.
1406, WHICH GRANTS IMMUNITY FROM PROSECUTION TO A WITNESS COMPELLED TO
TESTIFY BEFORE A GRAND JURY, THE UNITED STATES ATTORNEY, WITH THE
APPROVAL OF THE ATTORNEY GENERAL, OBTAINED A COURT ORDER DIRECTING
PETITIONER TO TESTIFY.  HE AGAIN REFUSED TO DO SO AND WAS ADJUDGED
GUILTY OF CRIMINAL CONTEMPT.  HELD:  THE CONVICTION IS SUSTAINED.  PP.
508-515. 

1.  THE IMMUNITY PROVIDED BY SEC. 1406 COVERS STATE, AS WELL AS
FEDERAL, PROSECUTIONS.  P. 510. 

2.  AS SO CONSTRUED, SEC. 1406 IS CONSTITUTIONAL, SINCE THE GRANT OF
IMMUNITY FROM STATE PROSECUTION IS NECESSARY AND PROPER TO THE MORE
EFFECTIVE EXECUTION OF THE UNDOUBTED POWER OF CONGRESS TO ENACT THE
NARCOTICS LAW.  PP. 510-512. 

3.  THE GRANT OF IMMUNITY FROM FUTURE STATE AND FEDERAL PROSECUTION
WAS AT LEAST COEXTENSIVE WITH PETITIONER'S CONSTITUTIONAL PRIVILEGE
AGAINST SELF-INCRIMINATION, AND IT WAS NOT NECESSARY THAT HE BE
PARDONED OR GRANTED AMNESTY COVERING THE UNSERVED PORTION OF HIS
SENTENCE AND HIS FINE FOR THE OFFENSE OF WHICH HE HAD PREVIOUSLY BEEN
CONVICTED.  PP. 512-514. 

4.  SINCE THE DISTRICT COURT PROVIDED THAT PETITIONER'S SENTENCE TO
TWO YEARS' IMPRISONMENT FOR CRIMINAL CONTEMPT SHOULD BE VACATED IF
PETITIONER SHOULD PURGE HIMSELF OF HIS CONTEMPT BY APPEARING BEFORE THE
GRAND JURY AND ANSWERING THE QUESTIONS WITHIN 60 DAYS FROM THE DATE OF
THE JUDGMENT, AND THIS COURT CONSTRUES THE 60-DAY PERIOD AS RUNNING
FROM THE EFFECTIVE DATE OF THIS COURT'S MANDATE, IT IS NOT NECESSARY TO
PASS ON THE QUESTIONS WHETHER THE SENTENCE WAS EXCESSIVE OR WHETHER THE
CONVICTION WAS INVALID BECAUSE THE DISTRICT COURT DID NOT ADVISE
PETITIONER OF THE EXTENT OF THE IMMUNITY CONFERRED BY SEC. 1406.  PP.
514-515. 

REINA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE NARCOTIC CONTROL ACT OF 1956, (FN1) 18 U.S.C. SEC. 1406,
LEGISLATES IMMUNITY FROM PROSECUTION FOR A WITNESS COMPELLED UNDER THE
INVESTIGATING ALLEGED VIOLATIONS OF THE FEDERAL NARCOTICS LAWS.  THE
QUESTIONS PRESENTED ARE, PRIMARILY, WHETHER THE SECTION GRANTS IMMUNITY
FROM STATE, AS WELL AS FEDERAL, PROSECUTION, AND, IF STATE IMMUNITY,
WHETHER THE SECTION IS CONSTITUTIONAL. 

THE PETITIONER WAS SERVING A FIVE-YEAR SENTENCE FOR A FEDERAL
NARCOTICS OFFENSE (FN2) WHEN, ON DECEMBER 5, 1958, HE WAS SUBPOENAED
BEFORE A FEDERAL GRAND JURY SITTING IN THE SOUTHERN DISTRICT OF NEW
YORK.  A NUMBER OF QUESTIONS WERE ASKED HIM CONCERNING HIS CRIME,
PARTICULARLY AS TO THE PERSONS INVOLVED WITH HIM AND THEIR ACTIVITIES
IN THE SMUGGLING OF NARCOTICS INTO THIS COUNTRY FROM EUROPE.  THE
PETITIONER INVOKED THE PROVISION OF THE FIFTH AMENDMENT AGAINST BEING
COMPELLED TO BE A WITNESS AGAINST HIMSELF (FN3) AND REFUSED TO ANSWER
ANY OF THE QUESTIONS.  THE UNITED STATES ATTORNEY WITH THE APPROVAL OF
THE ATTORNEY GENERAL OBTAINED A COURT ORDER PURSUANT TO SEC. 1406
DIRECTING HIM TO ANSWER.  WHEN HE RETURNED BEFORE THE GRAND JURY HE
AGAIN REFUSED TO TESTIFY.  PROCEEDINGS AGAINST HIM IN CRIMINAL CONTEMPT
RESULTED IN THE JUDGMENT UNDER REVIEW ADJUDGING HIM GUILTY AS CHARGED. 
170 F. SUPP. 592.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMED.  273 F.2D 234.  BECAUSE OF THE IMPORTANCE OF THE QUESTIONS OF
THE CONSTRUCTION AND CONSTITUTIONALITY OF SEC. 1406 RAISED BY THE CASE,
WE GRANTED CERTIORARI, 362 U.S. 939. 

PETITIONER'S MAIN ARGUMENT IN BOTH COURTS BELOW AND HERE CHALLENGES
SEC. 1406 AS GRANTING HIM ONLY FEDERAL IMMUNITY, AND NOT STATE
IMMUNITY, EITHER BECAUSE CONGRESS MEANT THE STATUTE TO BE THUS LIMITED,
OR BECAUSE THE STATUTE, IF CONSTRUED ALSO TO GRANT STATE IMMUNITY,
WOULD BE UNCONSTITUTIONAL.  BOTH COURTS BELOW PASSED THE QUESTION
WHETHER THE STATUTE GRANTS STATE IMMUNITY BECAUSE, ASSUMING ONLY
FEDERAL IMMUNITY IS GRANTED, THEY HELD THAT UNITED STATES V. MURDOCK,
284 U.S. 141, SETTLED THAT THE FIFTH AMENDMENT DOES NOT PROTECT A
FEDERAL WITNESS FROM ANSWERING QUESTIONS WHICH MIGHT INCRIMINATE HIM
UNDER STATE LAW.  170 F. SUPP., AT 595; 273 F.2D, AT 235.  PETITIONER
CONTENDS THAT MURDOCK SHOULD BE RE-EXAMINED AND OVERRULED.  WE HAVE NO
OCCASION TO CONSIDER THIS CONTENTION, SINCE IN OUR VIEW SEC. 1406
CONSTITUTIONALLY GRANTS IMMUNITY FROM BOTH FEDERAL AND STATE
PROSECUTIONS. 

WE CONSIDER FIRST WHETHER THE IMMUNITY PROVIDED BY SEC. 1406 COVERS
STATE, AS WELL AS FEDERAL, PROSECUTIONS.  WE HAVE NO DOUBT THE SECTION
LEGISLATES IMMUNITY FROM BOTH.  THE RELEVANT WORDS OF THE SECTION HAVE
APPEARED IN OTHER IMMUNITY STATUTES AND HAVE BEEN CONSTRUED BY THIS
COURT TO COVER BOTH STATE AND FEDERAL IMMUNITY.  IN ADAMS V. MARYLAND,
347 U.S. 179, A LIKE PROVISION IN 18 U.S.C. SEC. 3486 THAT THE
COMPELLED TESTIMONY SHALL NOT "BE USED AS EVIDENCE IN ANY CRIMINAL
PROCEEDING ...  AGAINST HIM IN ANY COURT" WAS HELD TO COVER BOTH
FEDERAL AND STATE COURTS.  THE "LANGUAGE COULD BE NO PLAINER," P. 181. 
IN ULLMANN V. UNITED STATES, 350 U.S. 422, 434-435, 18 U.S.C. SEC.
3486(C), ADDED BY THE IMMUNITY ACT OF 1954, OF WHICH SEC. 1406 IS
VIRTUALLY A CARBON COPY, WAS GIVEN THE SAME CONSTRUCTION.  MOREOVER,
THE ADOPTION OF SEC. 1406 FOLLOWED CLOSE UPON THE ULLMANN DECISION. 
THAT DECISION CAME DOWN ON MARCH 26, 1956.  SECTION 1406 WAS REPORTED
OUT OF THE HOUSE WAYS AND MEANS COMMITTEE ONLY THREE MONTHS LATER ON
JUNE 19, 1956, H.R. REP. NO. 2388, 84TH CONG., 2D SESS.  IT BECAME LAW
ON JULY 18, 1956.  70 STAT. 574.  WE CANNOT BELIEVE THAT CONGRESS WOULD
HAVE USED IN SEC. 1406 THE VERY WORDS CONSTRUED IN ULLMANN TO COVER
BOTH STATE AND FEDERAL PROSECUTIONS WITHOUT GIVING THE WORDS THE SAME
MEANING. 

WE TURN TO THE PETITIONER'S ARGUMENT THAT, SO CONSTRUED, SEC. 1406
ENCROACHES ON THE POLICE POWERS RESERVED TO THE STATES UNDER THE TENTH
AMENDMENT.  THE PETITIONER RECOGNIZES THAT IN ULLMANN THE COURT UPHELD
THE AUTHORITY OF CONGRESS TO GRANT STATE IMMUNITY AS "NECESSARY AND
PROPER" TO CARRY OUT THE POWER TO PROVIDE FOR THE NATIONAL DEFENSE; AND
IN ADAMS V. MARYLAND UPHELD THE POWER OF CONGRESS TO PRECLUDE THE
STATES FROM USING TESTIMONY THAT WAS COMPELLED UNDER FORMER SEC. 3486
BEFORE A CONGRESSIONAL INVESTIGATING COMMITTEE.  HE INSISTS, HOWEVER,
THAT THE CONGRESSIONAL AUTHORITY TO ENACT NARCOTICS LAWS - RESTED ON
THE COMMERCE CLAUSE, BROLAN V. UNITED STATES, 236 U.S. 216, 218; YEE
HEM V. UNITED STATES, 268 U.S. 178; OR THE TAXING POWER, UNITED STATES
V. DOREMUS, 249 U.S. 86; ALSTON V. UNITED STATES, 274 U.S. 289; NIGRO
V. UNITED STATES, 276 U.S. 332, 351-354; UNITED STATES V. SANCHEZ, 340
U.S. 42 - IS NOT BROAD ENOUGH TO ENCOMPASS THE LEGISLATION OF IMMUNITY
AGAINST STATE PROSECUTION UNDER STATE NARCOTICS LAWS, "A SUBJECT THAT
HAS TRADITIONALLY BEEN WITHIN THE POLICE POWER OF THE STATE."  BUT THE
PETITIONER MISCONCEIVES THE REACH OF THE PRINCIPLE APPLIED IN ULLMANN
AND ADAMS V. MARYLAND.  CONGRESS MAY LEGISLATE IMMUNITY RESTRICTING THE
EXERCISE OF STATE POWER TO THE EXTENT NECESSARY AND PROPER FOR THE MORE
EFFECTIVE EXERCISE OF A GRANTED POWER, AND DISTINCTIONS BASED UPON THE
PARTICULAR GRANTED POWER CONCERNED HAVE NO SUPPORT IN THE
CONSTITUTION.  SEE BROWN V. WALKER, 161 U.S. 591, IN WHICH THE COURT
UPHELD A FEDERAL IMMUNITY STATUTE PASSED IN THE NAME OF THE COMMERCE
CLAUSE AND CONSTRUED THAT STATUTE TO APPLY TO STATE PROSECUTIONS.  THE
RELEVANT INQUIRY HERE IS THUS SIMPLY WHETHER THE LEGISLATED STATE
IMMUNITY IS NECESSARY AND PROPER TO THE MORE EFFECTIVE ENFORCEMENT OF
THE UNDOUBTED POWER TO ENACT THE NARCOTICS LAWS. 

IT CAN HARDLY BE QUESTIONED THAT CONGRESS HAD A RATIONAL BASIS FOR
SUPPOSING THAT THE GRANT OF STATE AS WELL AS FEDERAL IMMUNITY WOULD AID
IN THE DETECTION OF VIOLATIONS AND HENCE THE MORE EFFECTIVE ENFORCEMENT
OF THE NARCOTICS LAWS.  THE CONGRESS HAS EVINCED SERIOUS AND CONTINUING
CONCERN OVER THE ALARMING PROPORTIONS TO WHICH THE ILLICIT NARCOTICS
TRAFFIC HAS GROWN.  THE TRAFFIC HAS FAR-REACHING NATIONAL AND
INTERNATIONAL ROOTS.  SEE S. REP. NO. 1997, 84TH CONG., 2D SESS., PP. 3
6.  THE DISCOVERY AND APPREHENSION OF THOSE ENGAGED IN IT PRESENT
PARTICULARLY DIFFICULT PROBLEMS OF LAW ENFORCEMENT.  THE WHOLE ARRAY OF
AIDS ADOPTED IN 1956, OF WHICH IMMUNITY IS BUT ONE, WAS ESPECIALLY
DESIGNED TO "PERMIT ENFORCEMENT OFFICERS TO OPERATE MORE EFFECTIVELY." 
H.R. REP. NO. 2388, 84TH CONG., 2D SESS., P. 10.  THE GRANT OF BOTH
FEDERAL AND STATE IMMUNITY IS APPROPRIATE AND CONDUCIVE TO THAT END,
AND THAT IS ENOUGH.  EVEN IF THE GRANT OF IMMUNITY WERE VIEWED AS NOT
ABSOLUTELY NECESSARY TO THE EXECUTION OF THE CONGRESSIONAL DESIGN, "TO
UNDERTAKE HERE TO INQUIRE INTO THE DEGREE  ...  OF NECESSITY, WOULD BE
TO PASS THE LINE WHICH CIRCUMSCRIBES THE JUDICIAL DEPARTMENT, AND TO
TREAD ON LEGISLATIVE GROUND."  MCCULLOCH V. MARYLAND, 4 WHEAT.  316,
423.  AND THE SUPERSESSION OF STATE PROSECUTION IS NOT THE LESS VALID
BECAUSE THE STATES HAVE TRADITIONALLY REGULATED THE TRAFFIC IN
NARCOTICS, ALTHOUGH THAT FACT HAS TROUBLED ONE COURT.  SEE TEDESCO V.
UNITED STATES, 255 F.2D 35.  MADISON SAID, "INTERFERENCE WITH THE POWER
OF THE STATE WAS NO CONSTITUTIONAL CRITERION OF THE POWER OF CONGRESS. 
IF THE POWER WAS NOT GIVEN, CONGRESS COULD NOT EXERCISE IT; IF GIVEN,
THEY MIGHT EXERCISE IT, ALTHOUGH IT SHOULD INTERFERE WITH THE LAWS, OR
EVEN THE CONSTITUTION OF THE STATES."  II ANNALS OF CONG. 1897 (1791). 
OR AS THE COURT HAS SAID CONCERNING FEDERAL IMMUNITY STATUTES, "  ...
SINCE CONGRESS IN THE LEGITIMATE EXERCISE OF ITS POWERS ENACTS 'THE
SUPREME LAW OF THE LAND,' STATE COURTS ARE BOUND BY SEC. 1406, EVEN
THOUGH IT AFFECTS THEIR RULES OF PRACTICE."  ADAMS V. MARYLAND, SUPRA.
P. 183. 

THE PETITIONER URGES THAT IN ANY EVENT HE SHOULD NOT HAVE BEEN
ORDERED TO ANSWER THE GRAND JURY'S QUESTIONS UNLESS HE FIRST RECEIVED A
"GENERAL PARDON OR AMNESTY" COVERING THE UNSERVED PORTION OF HIS
SENTENCE AND HIS FINE.  THIS IS A SUPRISING CONTENTION, IN LIGHT OF THE
TRADITIONAL PURPOSE OF IMMUNITY STATUTES TO PROTECT WITNESSES ONLY AS
TO THE FUTURE.  IT SUGGESTS THAT THE WITNESS WHO HAS BEEN CONVICTED IS
ENTITLED TO ASK MORE OF THE GOVERNMENT THAN THE WITNESS WHO HAS NOT BUT
WHO MAY BE COMPELLED UNDER SEC. 1406 TO REVEAL CRIMINAL CONDUCT WHICH,
BUT FOR THE IMMUNITY, WOULD SUBJECT HIM TO FUTURE FEDERAL OR STATE
PROSECUTION.  YET THE PETITIONER IN HIS BRIEF SAYS THAT "THE ORDINARY
RULE IS THAT ONCE A PERSON IS CONVICTED OF A CRIME, HE NO LONGER HAS
THE PRIVILEGE AGAINST SELF-INCRIMINATION AS HE CAN NO LONGER BE
INCRIMINATED BY HIS TESTIMONY ABOUT SAID CRIME  ...  ."  THERE IS
INDEED WEIGHTY AUTHORITY FOR THAT PROPOSITION.  UNITED STATES V.
ROMERO, 249 F.2D 371; 8 WIGMORE, EVIDENCE (3D ED. 1940), SEC. 2279; CF.
BROWN V. WALKER, SUPRA, 597-600.  UNDER IT, IMMUNITY, AT LEAST FROM
FEDERAL PROSECUTION, NEED NOT HAVE BEEN OFFERED THE PETITIONER AT ALL. 

THE PETITIONER DOES NOT ARGUE THAT REMISSION OF HIS PENALTY WAS DUE
AS A QUID PRO QUO FOR FURTHER EXPOSING HIMSELF TO PERSONAL DISGRACE OR
OPPROBRIUM.  THAT REASON WOULD NOT BE TENABLE UNDER BROWN V. WALKER,
SUPRA, IN WHICH THE COURT REJECTED THE ARGUMENT THAT THE VALIDITY OF AN
IMMUNITY STATUTE SHOULD DEPEND UPON WHETHER IT SHIELDS "THE WITNESS
FROM THE PERSONAL DISGRACE OR OPPROBRIUM ATTACHING TO THE EXPOSURE OF
HIS CRIME."  161 U.S., AT 605.  NOR DOES HE SUPPORT HIS CONTENTION WITH
THE ARGUMENT THAT THE PRISON SENTENCE IMPOSED FOR DISOBEDIENCE OF THE
ORDER DIRECTING HIM TO TESTIFY IS ACTUALLY AN ADDITIONAL PUNISHMENT FOR
HIS CRIME.  HIS ARGUMENT IS THE SINGLE ONE THAT THE "SAID ORDER WAS NOT
A PROPER BASIS UPON WHICH TO BOTTOM A CONTEMPT PROCEEDING IN THE FACE
OF A CLAIM OF PRIVILEGE AGAINST SELF INCRIMINATION AS IT DID NOT GRANT
THIS PETITIONER IMMUNITY COEXTENSIVE WITH THE CONSTITUTIONAL PRIVILEGE
IT SOUGHT TO REPLACE  ...  ."  THE COMPLETE ANSWER TO THIS IS THAT IN
SAFEGUARDING HIM AGAINST FUTURE FEDERAL AND STATE PROSECUTION "FOR OR
ON ACCOUNT OF ANY TRANSACTION, MATTER OR THING CONCERNING WHICH HE IS
COMPELLED" TO TESTIFY, THE STATUTE GRANTS HIM IMMUNITY FULLY
COEXTENSIVE WITH THE CONSTITUTIONAL PRIVILEGE.  SOME LANGUAGE IN BROWN
V. WALKER, 161 U.S., AT 601, TO WHICH PETITIONER REFERS, COMPARES
IMMUNITY STATUTES TO THE TRADITIONAL DECLARATIONS OF AMNESTY OR
PARDON.  BUT NEITHER IN THAT OPINION NOR ELSEWHERE IS IT SUGGESTED THAT
IMMUNITY STATUTES, TO ESCAPE INVALIDITY UNDER THE FIFTH AMENDMENT, NEED
DO MORE THAN PROTECT A WITNESS FROM FUTURE PROSECUTIONS.  THIS SEC.
1406 DOES. 

THE PETITIONER COMPLAINS FINALLY THAT HIS SENTENCE IS EXCESSIVE.  THE
DISTRICT COURT SENTENCED HIM TO TWO YEARS' IMPRISONMENT TO COMMENCE AT
THE EXPIRATION OF THE SENTENCE HE WAS THEN SERVING.  HOWEVER, THE COURT
ALSO ALLOWED THE PETITIONER 60 DAYS FROM THE DATE OF THE JUDGMENT TO
PURGE HIMSELF OF HIS CONTEMPT BY APPEARING WITHIN THAT PERIOD BEFORE
THE GRAND JURY AND ANSWERING THE QUESTIONS.  IT WAS FURTHER PROVIDED
THAT IF HE DID SO, "THE SENTENCE IMPOSED HEREIN SHALL BE VACATED."  THE
DISTRICT COURT TOOK THIS ACTION BECAUSE IT FOUND IN EFFECT THAT THE
PETITIONER ASSERTED HIS LEGAL POSITION IN GOOD FAITH AND WAS NOT
CONTUMACIOUSLY DISRESPECTFUL OF THE COURT'S ORDER OR OBSTINATELY
FLOUTING IT.  170 F. SUPP., AT 596.  THERE IS NO OCCASION FOR US TO
CONSIDER THE CLAIM OF EXCESSIVENESS OF THE SENTENCE, OR THE
PETITIONER'S COMPANION CLAIM THAT THE CONVICTION WAS INVALID BECAUSE
THE DISTRICT COURT DID NOT ADVISE HIM OF THE EXTENT OF THE IMMUNITY
CONFERRED BY SEC. 1406.  WE CONSTRUE THE 60-DAY PURGE PERIOD AS RUNNING
FROM THE EFFECTIVE DATE OF THIS COURT'S MANDATE AND THE PETITIONER MAY
AVOID IMPRISONMENT BY ANSWERING.  NOW THAT THIS COURT HAS HELD THAT HIS
FEARS OF FUTURE STATE OR FEDERAL PROSECUTION ARE GROUNDLESS, HE KNOWS
THAT THE ONLY REASON HE GAVE FOR CLAIMING HIS PRIVILEGE HAS NO
SUBSTANCE.  NO QUESTION OF AN ADMIXTURE OF CIVIL AND CRIMINAL CONTEMPT
HAVING BEEN RAISED BELOW OR HERE, WE DO NOT REACH THE ISSUES IT MIGHT
PRESENT.  AFFIRMED. 

FN1  ACT OF JULY 18, 1956, 70 STAT. 572 ET SEQ.; 18 U.S.C. SEC. 1401
ET SEQ. THE RELEVANT PORTIONS OF SEC. 1406 ARE AS FOLLOWS: 

"SEC. 1406.  IMMUNITY OF WITNESSES. 

"WHENEVER IN THE JUDGMENT OF A UNITED STATES ATTORNEY THE TESTIMONY
OF ANY WITNESS  ...  IN ANY CASE OR PROCEEDING BEFORE ANY GRAND JURY OR
COURT OF THE UNITED STATES INVOLVING ANY VIOLATION OF (CERTAIN FEDERAL
NARCOTICS STATUTES)  ...  IS NECESSARY TO THE PUBLIC INTEREST, HE, UPON
THE APPROVAL OF THE ATTORNEY GENERAL, SHALL MAKE APPLICATION TO THE
COURT THAT THE WITNESS SHALL BE INSTRUCTED TO TESTIFY  ...  .  BUT NO
SUCH WITNESS SHALL BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR
FORFEITURE FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER, OR THING
CONCERNING WHICH HE IS COMPELLED, AFTER HAVING CLAIMED HIS PRIVILEGE
AGAINST SELF-INCRIMINATION, TO TESTIFY  ...  NOR SHALL TESTIMONY SO
COMPELLED, BE USED AS EVIDENCE IN ANY CRIMINAL PROCEEDING  ...  AGAINST
HIM IN ANY COURT  ...  ."    FN2  UNITED STATES V. REINA, 242 F.2D
302.  WHEN PETITIONER APPEARED BEFORE THE GRAND JURY ON DECEMBER 5,
1958, HE HAD SERVED ABOUT TWO YEARS AND EIGHT MONTHS OF HIS FIVE-YEAR
TERM.  HE COMPLETED THE SENTENCE ON NOVEMBER 21, 1959. 

FN3  "NO PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF  ...  ."

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE CONCURS, DISSENTING. 

THE COURT AFFIRMS A CONVICTION FOR CONTEMPT OF COURT UPON WHICH
PETITIONER HAS BEEN SENTENCED TO IMPRISONMENT FOR TWO YEARS WITH THE
PROVISION THAT HE CAN PURGE HIMSELF OF THE CONTEMPT IF HE ANSWERS THE
QUESTIONS PROPOUNDED TO HIM WITHIN 60 DAYS.  THIS IS A STRANGE KIND OF
SENTENCE, APPARENTLY COMBINING IN ONE JUDGMENT THE ELEMENTS OF BOTH
CIVIL AND CRIMINAL CONTEMPT.  THIS FACT ALONE IS SUFFICIENT TO AROUSE
GRAVE DOUBTS IN MY MIND AS TO THE VALIDITY OF THE JUDGMENT, SINCE CIVIL
AND CRIMINAL CONTEMPT PROCEDURES ARE QUITE DIFFERENT AND CALL FOR THE
EXERCISE OF QUITE DIFFERENT JUDICIAL POWERS.  MOREOVER, ANALYSIS OF
THIS JUDGMENT MAKES IT CLEAR THAT IT RESTS UPON THE NOTION THAT
PETITIONER HAS AS YET COMMITTED NO CRIME AND IS BEING SENTENCED FOR
CIVIL CONTEMPT FOR THE SOLE PURPOSE OF COERCING HIS COMPLIANCE WITH THE
DEMAND FOR HIS TESTIMONY, BUT THAT IF HE FAILS TO COMPLY WITH THIS
DEMAND WITHIN THE SPECIFIED PERIOD, HE WILL HAVE COMMITTED A CRIMINAL
CONTEMPT.  THUS THE JUDGMENT SEEMS TO REPRESENT A PRESENT ADJUDICATION
OF GUILT FOR A CRIME TO BE COMMITTED IN THE FUTURE.  THE FACT THAT THE
JUDGMENT HAS NOT BEEN CHALLENGED ON THIS SPECIFIC GROUND BY PETITIONER
DOES NOT, IN MY VIEW, BAR OUR CONSIDERATION OF IT.  ORDINARILY, A
JUDGMENT INVALID ON ITS FACE CAN BE CHALLENGED AT ANY TIME.  I FIND IT
UNNECESSARY, HOWEVER, TO REACH A DEFINITE CONCLUSION ON THIS QUESTION
BECAUSE, EVEN ASSUMING THAT THE JUDGMENT IS NOT INVALID AS A RESULT OF
ITS HYBRID NATURE, I STILL THINK IT SHOULD BE REVERSED. 

PETITIONER CONTENDS THAT THE DECISION OF THE COURT OF APPEALS SHOULD
BE REVERSED BECAUSE THE TWO-YEAR SENTENCE IS EXCESSIVE.  THAT
CONTENTION IS SUFFICIENT TO BRING INTO ISSUE ANY GROUND UPON WHICH THE
LENGTH OF THE SENTENCE MAY OPEN THE DECISION TO ATTACK.  CF.  BOYNTON
V. VIRGINIA, 364 U.S. 454, 457.  I THINK THE IMPOSITION OF A TWO-YEAR
SENTENCE WAS BEYOND THE DISTRICT COURT'S POWER IN THE SUMMARY
PROCEEDINGS IT CONDUCTED IN THIS CASE.  IN MY DISSENTING OPINION IN
GREEN V. UNITED STATES, 356 U.S. 165, 193, I STATED IN FULL THE REASONS
WHICH LED ME TO CONCLUDE THAT WHERE THE OBJECT OF A PROCEEDING IS TO
IMPOSE PUNISHMENT RATHER THAN MERELY TO COERCE COMPLIANCE, "THERE IS NO
JUSTIFICATION IN HISTORY, IN NECESSITY, OR MOST IMPORTANT IN THE
CONSTITUTION FOR TRYING THOSE CHARGED WITH VIOLATING A COURT'S DECREE
IN A MANNER WHOLLY DIFFERENT FROM THOSE ACCUSED OF DISOBEYING ANY OTHER
MANDATE OF THE STATE."  ID., AT 218.  I ADHERE TO THAT VIEW AND
REITERATE MY BELIEF THAT THE COURT'S POSITION RESTS SOLELY UPON THE
FACT THAT "JUDGES AND LAWYERS HAVE TOLD EACH OTHER THE CONTRARY SO
OFTEN THAT THEY HAVE COME TO ACCEPT IT AS THE GOSPEL TRUTH."  ID., AT
219.  THUS, I CANNOT JOIN A DECISION UPHOLDING A TWO-YEAR SENTENCE FOR
CONTEMPT UPON A TRIAL IN WHICH THE ACCUSED HAS BEEN DENIED THE
CONSTITUTIONAL PROTECTIONS OF INDICTMENT BY A GRAND JURY AND
DETERMINATION OF GUILT BY A PETIT JURY.  I REGARD THIS CASE AS ANOTHER
OMINOUS STEP IN THE INCREDIBLE TRANSFORMATION AND GROWTH OF THE
CONTEMPT POWER AND IN THE CONSEQUENT EROSION OF CONSTITUTIONAL
SAFEGUARDS TO THE PROTECTION OF LIBERTY.  I SEE NO REASON WHY
PETITIONER SHOULD NOT HAVE BEEN TRIED IN ACCORDANCE WITH THE LAW OF THE
LAND - INCLUDING THE BILL OF RIGHTS - AND CONCLUDE, THEREFORE, THAT THE
CASE SHOULD BE REVERSED FOR SUCH A TRIAL. 
..END :






















ALLRED V. HEATON 364 U.S. 517 


NO. 518.  DECIDED DECEMBER 19, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  336 S.W.2D 251. 


ALLRED ET AL. V. HEATON ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, TENTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT FURTHER CONSIDERATION OF
THE QUESTION OF JURISDICTION SHOULD BE POSTPONED TO THE HEARING OF THE
CASE ON THE MERITS. 
..END :











WESTINGHOUSE BROADCASTING CO. V. UNITED STATES 364 U.S. 518 


NO. 484.  DECIDED DECEMBER 19, 1960 - APPEAL DISMISSED - REPORTED BELOW:
186 F. SUPP. 776. 


WESTINGHOUSE BROADCASTING CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 

MR. JUSTICE FRANKFURTER IS OF THE OPINION THAT THE MOTION TO AFFIRM
SHOULD BE GRANTED. 
..END :











ROBERTOY V. MICHIGAN 364 U.S. 519 


NO. 308, MISC.  DECIDED DECEMBER 19, 1960. 


APPEAL DISMISSED SINCE THE JUDGMENT BELOW IS BASED ON A NONFEDERAL
GROUND ADEQUATE TO SUPPORT IT.

ROBERTOY V. MICHIGAN. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR THE REASON THAT THE JUDGMENT OF THE
SUPREME COURT OF MICHIGAN, SOUGHT HERE TO BE REVIEWED, IS BASED UPON A
NONFEDERAL GROUND ADEQUATE TO SUPPORT IT.
..END :













SHELTON V. TUCKER 364 U.S. 479 


NO. 14.  ARGUED NOVEMBER 7, 1960 - DECIDED DECEMBER 12, 1960* - 174 F.
SUPP. 351 AND 231 ARK. 641, 331 S.W.2D 701, REVERSED. 

*TOGETHER WITH NO. 83, CARR ET AL. V. YOUNG ET AL., ON CERTIORARI TO
THE SUPREME COURT OF ARKANSAS. 


AN ARKANSAS STATUTE REQUIRES EVERY TEACHER, AS A CONDITION OF
EMPLOYMENT IN A STATE-SUPPORTED SCHOOL OR COLLEGE, TO FILE ANNUALLY AN
AFFIDAVIT LISTING WITHOUT LIMITATION EVERY ORGANIZATION TO WHICH HE HAS
BELONGED OR REGULARLY CONTRIBUTED WITHIN THE PRECEEDING FIVE YEARS. 
TEACHERS IN STATE-SUPPORTED SCHOOLS AND COLLEGES ARE NOT COVERED BY A
CIVIL SERVICE SYSTEM, THEY ARE HIRED ON A YEAR-TO-YEAR BASIS, AND THEY
HAVE NO JOB SECURITY BEYOND THE END OF EACH SCHOOL YEAR.  THE CONTRACTS
OF THE TEACHERS HERE INVOLVED WERE NOT RENEWED, BECAUSE THEY REFUSED TO
FILE THE REQUIRED AFFIDAVITS.  HELD:  THE STATUTE IS INVALID, BECAUSE
IT DEPRIVES TEACHERS OF THEIR RIGHT OF ASSOCIATIONAL FREEDOM PROTECTED
BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT FROM INVASION BY
STATE ACTION.  PP. 480-490. 

(A)  THERE CAN BE NO DOUBT OF THE RIGHT OF A STATE TO INVESTIGATE THE
COMPETENCE AND FITNESS OF THOSE WHOM IT HIRES TO TEACH IN ITS SCHOOLS. 
P. 485. 

(B)  TO COMPEL A TEACHER TO DISCLOSE HIS EVERY ASSOCIATIONAL TIE IS
TO IMPAIR HIS RIGHT OF FREE ASSOCIATION, A RIGHT CLOSELY ALLIED TO
FREEDOM OF SPEECH AND A RIGHT WHICH, LIKE FREE SPEECH, LIES AT THE
FOUNDATION OF A FREE SOCIETY.  PP. 485-487. 

(C)  THE UNLIMITED AND INDISCRIMINATE SWEEP OF THE STATUTE HERE
INVOLVED AND ITS COMPREHENSIVE INTERFERENCE WITH ASSOCIATIONAL FREEDOM
GO FAR BEYOND WHAT MIGHT BE JUSTIFIED IN THE EXERCISE OF THE STATE'S
LEGITIMATE INQUIRY INTO THE FITNESS AND COMPETENCE OF ITS TEACHERS. 
PP. 487-490. 

SHELTON ET AL. V. TUCKER ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF ARKANSAS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

AN ARKANSAS STATUTE COMPELS EVERY TEACHER, AS A CONDITION OF
EMPLOYMENT IN A STATE-SUPPORTED SCHOOL OR COLLEGE, TO FILE ANNUALLY AN
AFFIDAVIT LISTING WITHOUT LIMITATION EVERY ORGANIZATION TO WHICH HE HAS
BELONGED OR REGULARLY CONTRIBUTED WITHIN THE PRECEDING FIVE YEARS.  AT
ISSUE IN THESE TWO CASES IS THE VALIDITY OF THAT STATUTE UNDER THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION.  NO. 14 IS AN APPEAL FROM THE
JUDGMENT OF A THREE-JUDGE FEDERAL DISTRICT COURT UPHOLDING THE
STATUTE'S VALIDITY, 174 F. SUPP. 351.  NO. 83 IS HERE ON WRIT OF
CERTIORARI TO THE SUPREME COURT OF ARKANSAS, WHICH ALSO HELD THE
STATUTE CONSTITUTIONALLY VALID.  231 ARK. 641, 331 S.W.2D 701. 

THE STATUTE IN QUESTION IS ACT 10 OF THE SECOND EXTRAORDINARY SESSION
OF THE ARKANSAS GENERAL ASSEMBLY OF 1958.  THE PROVISIONS OF THE ACT
ARE SUMMARIZED IN THE OPINION OF THE DISTRICT COURT AS FOLLOWS: 

"ACT 10 PROVIDES IN SUBSTANCE THAT NO PERSON SHALL BE EMPLOYED OR
ELECTED TO EMPLOYMENT AS A SUPERINTENDENT, PRINCIPAL OR TEACHER IN ANY
PUBLIC SCHOOL IN ARKANSAS, OR AS AN INSTRUCTOR, PROFESSOR OR TEACHER IN
ANY PUBLIC INSTITUTION OF HIGHER LEARNING IN THAT STATE UNTIL SUCH
PERSON SHALL HAVE SUBMITTED TO THE APPROPRIATE HIRING AUTHORITY AN
AFFIDAVIT LISTING ALL ORGANIZATIONS TO WHICH HE AT THE TIME BELONGS AND
TO WHICH HE HAS BELONGED DURING THE PAST FIVE YEARS, AND ALSO LISTING
ALL ORGANIZATIONS TO WHICH HE AT THE TIME IS PAYING REGULAR DUES OR IS
MAKING REGULAR CONTRIBUTIONS, OR TO WHICH WITHIN THE PAST FIVE YEARS HE
HAS PAID SUCH DUES OR MADE SUCH CONTRIBUTIONS.  THE ACT FURTHER
PROVIDES, AMONG OTHER THINGS, THAT ANY CONTRACT ENTERED INTO WITH ANY
PERSON WHO HAS NOT FILED THE PRESCRIBED AFFIDAVIT SHALL BE VOID; THAT
NO PUBLIC MONEYS SHALL BE PAID TO SUCH PERSONS AS COMPENSATION FOR HIS
SERVICES; AND THAT ANY SUCH FUNDS SO PAID MAY BE RECOVERED BACK EITHER
FROM THE PERSON RECEIVING SUCH FUNDS OR FROM THE BOARD OF TRUSTEES OR
OTHER GOVERNING BODY MAKING THE PAYMENT.  THE FILING OF A FALSE
AFFIDAVIT IS DENOUNCED AS PERJURY, PUNISHABLE BY A FINE OF NOT LESS
THAN FIVE HUNDRED NOR MORE THAN ONE THOUSAND DOLLARS, AND, IN ADDITION,
THE PERSON FILING THE FALSE AFFIDAVIT IS TO LOSE HIS TEACHING
LICENSE."  174 F. SUPP. 353-354.  (FN1) 

THESE PROVISIONS MUST BE CONSIDERED AGAINST THE EXISTING SYSTEM OF
TEACHER EMPLOYMENT REQUIRED BY ARKANSAS LAW.  TEACHERS THERE ARE HIRED
ON A YEAR-TO-YEAR BASIS.  THEY ARE NOT COVERED BY A CIVIL SERVICE
SYSTEM, AND THEY HAVE NO JOB SECURITY BEYOND THE END OF EACH SCHOOL
YEAR.  THE CLOSEST APPROACH TO TENURE IS A STATUTORY PROVISION FOR THE
AUTOMATIC RENEWAL OF A TEACHER'S CONTRACT IF HE IS NOT NOTIFIED WITHIN
TEN DAYS AFTER THE END OF A SCHOOL YEAR THAT THE CONTRACT HAS NOT BEEN
RENEWED.  ARK. 1947 STAT. ANN. SEC. 80-1304(B) (1960); WABBASEKA SCHOOL
DISTRICT NO. 7 V. JOHNSON, 225 ARK. 982, 286 S.W.2D 841. 

THE PLAINTIFFS IN THE FEDERAL DISTRICT COURT (APPELLANTS HERE) WERE
B.T. SHELTON, A TEACHER EMPLOYED IN THE LITTLE ROCK PUBLIC SCHOOL
SYSTEM, SUING FOR HIMSELF AND OTHERS SIMILARLY SITUATED, TOGETHER WITH
THE ARKANSAS TEACHERS ASSOCIATION AND ITS EXECUTIVE SECRETARY, SUING
FOR THE BENEFIT OF MEMBERS OF THE ASSOCIATION.  SHELTON HAD BEEN
EMPLOYED IN THE LITTLE ROCK SPECIAL SCHOOL DISTRICT FOR TWENTY-FIVE
YEARS.  IN THE SPRING OF 1959 HE WAS NOTIFIED THAT, BEFORE HE COULD BE
EMPLOYED FOR THE 1959-1960 SCHOOL YEAR, HE MUST FILE THE AFFIDAVIT
REQUIRED BY ACT 10, LISTING ALL HIS ORGANIZATIONAL CONNECTIONS OVER THE
PREVIOUS FIVE YEARS.  HE DECLINED TO FILE THE AFFIDAVIT, AND HIS
CONTRACT FOR THE ENSUING SCHOOL YEAR WAS NOT RENEWED.  AT THE TRIAL THE
EVIDENCE SHOWED THAT HE WAS NOT A MEMBER OF THE COMMUNIST PARTY OR OF
ANY ORGANIZATION ADVOCATING THE OVERTHROW OF THE GOVERNMENT BY FORCE,
AND THAT HE WAS A MEMBER OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE.  THE COURT UPHELD ACT 10, FINDING THE
INFORMATION IT REQUIRED WAS "RELEVANT," AND RELYING ON SEVERAL
DECISIONS OF THIS COURT, PARTICULARLY GARNER V. BOARD OF PUBLIC WORKS
OF LOS ANGELES, 341 U.S. 716; ADLER V. BOARD OF EDUCATION, 342 U.S.
485; BEILAN V. BOARD OF EDUCATION, 357 U.S. 399; AND LERNER V. CASEY,
357 U.S. 468.  (FN2) 

THE PLAINTIFFS IN THE STATE COURT PROCEEDINGS (PETITIONERS HERE) WERE
MAX CARR, AN ASSOCIATE PROFESSOR AT THE UNIVERSITY OF ARKANSAS, AND
ERNEST T. GEPHARDT, A TEACHER AT CENTRAL HIGH SCHOOL IN LITTLE ROCK,
EACH SUING FOR HIMSELF AND OTHERS SIMILARLY SITUATED.  EACH REFUSED TO
EXECUTE AND FILE THE AFFIDAVIT REQUIRED BY ACT 10.  CARR EXECUTED AN
AFFIRMATION (FN3) IN WHICH HE LISTED HIS MEMBERSHIP IN PROFESSIONAL
ORGANIZATIONS, DENIED EVER HAVING BEEN A MEMBER OF ANY SUBVERSIVE
ORGANIZATION, AND OFFERED TO ANSWER ANY QUESTIONS WHICH THE UNIVERSITY
AUTHORITIES MIGHT CONSTITUTIONALLY ASK TOUCHING UPON HIS QUALIFICATIONS
AS A TEACHER.  GEPHARDT FILED AN AFFIDAVIT STATING THAT HE HAD NEVER
BELONGED TO A SUBVERSIVE ORGANIZATION, DISCLOSING HIS MEMBERSHIP IN THE
ARKANSAS EDUCATION ASSOCIATION AND THE AMERICAN LEGION, AND ALSO
OFFERING TO ANSWER ANY QUESTIONS WHICH THE SCHOOL AUTHORITIES MIGHT
CONSTITUTIONALLY ASK TOUCHING UPON HIS QUALIFICATIONS AS A TEACHER. 
BOTH WERE ADVISED THAT THEIR FAILURE TO COMPLY WITH THE REQUIREMENTS OF
ACT 10 WOULD MAKE IMPOSSIBLE THEIR RE-EMPLOYMENT AS TEACHERS FOR THE
FOLLOWING SCHOOL YEAR.  THE SUPREME COURT OF ARKANSAS UPHELD THE
CONSTITUTIONALITY OF ACT 10, ON ITS FACE AND AS APPLIED TO THE
PETITIONERS.  231 ARK. 641, 331 S.W.2D 701. 

         I. 

IT IS URGED HERE, AS IT WAS UNSUCCESSFULLY URGED THROUGHOUT THE
PROCEEDINGS IN BOTH THE FEDERAL AND STATE COURTS, THAT ACT 10 DEPRIVES
TEACHERS IN ARKANSAS OF THEIR RIGHTS TO PERSONAL, ASSOCIATIONAL, AND
ACADEMIC LIBERTY, PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT FROM INVASION BY STATE ACTION.  IN CONSIDERING THIS
CONTENTION, WE DEAL WITH TWO BASIC POSTULATES. 

FIRST.  THERE CAN BE NO DOUBT OF THE RIGHT OF A STATE TO INVESTIGATE
THE COMPETENCE AND FITNESS OF THOSE WHOM IT HIRES TO TEACH IN ITS
SCHOOLS, AS THIS COURT BEFORE NOW HAS HAD OCCASION TO RECOGNIZE.   "A
TEACHER WORKS IN A SENSITIVE AREA IN A SCHOOLROOM.  THERE HE SHAPES THE
ATTITUDE OF YOUNG MINDS TOWARDS THE SOCIETY IN WHICH THEY LIVE.  IN
THIS, THE STATE HAS A VITAL CONCERN."  ADLER V. BOARD OF EDUCATION, 342
U.S. 485, 493.  THERE IS "NO REQUIREMENT IN THE FEDERAL CONSTITUTION
THAT A TEACHER'S CLASSROOM CONDUCT BE THE SOLE BASIS FOR DETERMINING
HIS FITNESS.  FITNESS FOR TEACHING DEPENDS ON A BROAD RANGE OF
FACTORS."  BEILAN V. BOARD OF EDUCATION, 357 U.S. 399, 406.  (FN4) 

THIS CONTROVERSY IS THUS NOT OF A PATTERN WITH SUCH CASES AS
N.A.A.C.P. V. ALABAMA, 357 U. S. 449, AND BATES V. LITTLE ROCK, 361
U.S. 516.  IN THOSE CASES THE COURT HELD THAT THERE WAS NO
SUBSTANTIALLY RELEVANT CORRELATION BETWEEN THE GOVERNMENTAL INTEREST
ASSERTED AND THE STATE'S EFFORT TO COMPEL DISCLOSURE OF THE MEMBERSHIP
LISTS INVOLVED.  HERE, BY CONTRAST, THERE CAN BE NO QUESTION OF THE
RELEVANCE OF A STATE'S INQUIRY INTO THE FITNESS AND COMPETENCE OF ITS
TEACHERS.  (FN5) 

SECOND.  IT IS NOT DISPUTED THAT TO COMPEL A TEACHER TO DISCLOSE HIS
EVERY ASSOCIATIONAL TIE IS TO IMPAIR THAT TEACHER'S RIGHT OF FREE
ASSOCIATION, A RIGHT CLOSELY ALLIED TO FREEDOM OF SPEECH AND A RIGHT,
WHICH, LIKE FREE SPEECH, LIES AT THE FOUNDATION OF A FREE SOCIETY.  DE
JONGE V. OREGON, 299 U.S. 353, 364; BATES V. LITTLE ROCK, SUPRA, AT 522
523.  SUCH INTERFERENCE WITH PERSONAL FREEDOM IS CONSPICUOUSLY ACCENTED
WHEN THE TEACHER SERVES AT THE ABSOLUTE WILL OF THOSE TO WHOM THE
DISCLOSURE MUST BE MADE - THOSE WHO ANY YEAR CAN TERMINATE THE
TEACHER'S EMPLOYMENT WITHOUT BRINGING CHARGES, WITHOUT NOTICE, WITHOUT
A HEARING, WITHOUT AFFORDING AN OPPORTUNITY TO EXPLAIN. 

THE STATUTE DOES NOT PROVIDE THAT THE INFORMATION IT REQUIRES BE KEPT
CONFIDENTIAL.  EACH SCHOOL BOARD IS LEFT FREE TO DEAL WITH THE
INFORMATION AS IT WISHES.  (FN6)  THE RECORD CONTAINS EVIDENCE TO
INDICATE THAT FEAR OF PUBLIC DISCLOSURE IS NEITHER THEORETICAL NOR
GROUNDLESS.  (FN7)  EVEN IF THERE WERE NO DISCLOSURE TO THE GENERAL
PUBLIC, THE PRESSURE UPON A TEACHER TO AVOID ANY TIES WHICH MIGHT
DISPLEASE THOSE WHO CONTROL HIS PROFESSIONAL DESTINY WOULD BE CONSTANT
AND HEAVY.  PUBLIC EXPOSURE, BRINGING WITH IT THE POSSIBILITY OF PUBLIC
PRESSURES UPON SCHOOL BOARDS TO DISCHARGE TEACHERS WHO BELONG TO
UNPOPULAR OR MINORITY ORGANIZATIONS, WOULD SIMPLY OPERATE TO WIDEN AND
AGGRAVATE THE IMPAIRMENT OF CONSTITUTIONAL LIBERTY. 

THE VIGILANT PROTECTION OF CONSTITUTIONAL FREEDOMS IS NOWHERE MORE
VITAL THAN IN THE COMMUNITY OF AMERICAN SCHOOLS.  "BY LIMITING THE
POWER OF THE STATES TO INTERFERE WITH FREEDOM OF SPEECH AND FREEDOM OF
INQUIRY AND FREEDOM OF ASSOCIATION, THE FOURTEENTH AMENDMENT PROTECTS
ALL PERSONS, NO MATTER WHAT THEIR CALLING.  BUT, IN VIEW OF THE NATURE
OF THE TEACHER'S RELATION TO THE EFFECTIVE EXERCISE OF THE RIGHTS WHICH
ARE SAFEGUARDED BY THE BILL OF RIGHTS AND BY THE FOURTEENTH AMENDMENT,
INHIBITION OF FREEDOM OF THOUGHT, AND OF ACTION UPON THOUGHT, IN THE
CASE OF TEACHERS BRINGS THE SAFEGUARDS OF THOSE AMENDMENTS VIVIDLY INTO
OPERATION.  SUCH UNWARRANTED INHIBITION UPON THE FREE SPIRIT OF
TEACHERS  ...  HAS AN UNMISTAKABLE TENDENCY TO CHILL THAT FREE PLAY OF
THE SPIRIT WHICH ALL TEACHERS OUGHT ESPECIALLY TO CULTIVATE AND
PRACTICE; IT MAKES FOR CAUTION AND TIMIDITY IN THEIR ASSOCIATIONS BY
POTENTIAL TEACHERS."  WIEMAN V. UPDEGRAFF, 344 U.S. 183, 195
(CONCURRING OPINION).  "SCHOLARSHIP CANNOT FLOURISH IN AN ATMOSPHERE OF
SUSPICION AND DISTRUST.  TEACHERS AND STUDENTS MUST ALWAYS REMAIN FREE
TO INQUIRE, TO STUDY AND TO EVALUATE  ...  ."  SWEEZY V. NEW HAMPSHIRE,
354 U.S. 234, 250. 

             II. 

THE QUESTION TO BE DECIDED HERE IS NOT WHETHER THE STATE OF ARKANSAS
CAN ASK CERTAIN OF ITS TEACHERS ABOUT ALL THEIR ORGAZINATIONAL
RELATIONSHIPS.  IT IS NOT WHETHER THE STATE CAN ASK ALL OF ITS TEACHERS
ABOUT CERTAIN OF THEIR ASSOCIATIONAL TIES.  IT IS NOT WHETHER TEACHERS
CAN BE ASKED HOW MANY ORGANIZATIONS THEY BELONG TO, OR HOW MUCH TIME
THEY SPEND IN ORGANIZATIONAL ACTIVITY.  THE QUESTION IS WHETHER THE
STATE CAN ASK EVERY ONE OF ITS TEACHERS TO DISCLOSE EVERY SINGLE
ORGANIZATION WITH WHICH HE HAS BEEN ASSOCIATED OVER A FIVE-YEAR
PERIOD.  THE SCOPE OF THE INQUIRY REQUIRED BY ACT 10 IS COMPLETELY
UNLIMITED.  THE STATUTE REQUIRES A TEACHER TO REVEAL THE CHURCH TO
WHICH HE BELONGS, OR TO WHICH HE HAS GIVEN FINANCIAL SUPPORT.  IT
REQUIRES HIM TO DISCLOSE HIS POLITICAL PARTY, AND EVERY POLITICAL
ORGANIZATION TO WHICH HE MAY HAVE CONTRIBUTED OVER A FIVE-YEAR PERIOD. 
IT REQUIRES HIM TO LIST, WITHOUT NUMBER, EVERY CONCEIVABLE KIND OF
ASSOCIATIONAL TIE - SOCIAL, PROFESSIONAL, POLITICAL, AVOCATIONAL, OR
RELIGIOUS.  MANY SUCH RELATIONSHIPS COULD HAVE NO POSSIBLE BEARING UPON
THE TEACHER'S OCCUPATIONAL COMPETENCE OR FITNESS. 

IN A SERIES OF DECISIONS THIS COURT HAS HELD THAT, EVEN THOUGH THE
GOVERNMENTAL PURPOSE BE LEGITIMATE AND SUBSTANTIAL, THAT PURPOSE CANNOT
BE PURSUED BY MEANS THAT BROADLY STIFLE FUNDAMENTAL PERSONAL LIBERTIES
WHEN THE END CAN BE MORE NARROWLY ACHIEVED.  (FN8)  THE BREADTH OF
LEGISLATIVE ABRIDGMENT MUST BE VIEWED IN THE LIGHT OF LESS DRASTIC
MEANS FOR ACHIEVING THE SAME BASIC PURPOSE.  (FN9) 

IN LOVELL V. GRIFFIN, 303 U.S. 444, THE COURT INVALIDATED AN
ORDINANCE PROHIBITING ALL DISTRIBUTION OF LITERATURE AT ANY TIME OR
PLACE IN GRIFFIN, GEORGIA, WITHOUT A LICENSE, POINTING OUT THAT SO
BROAD AN INTERFERENCE WAS UNNECESSARY TO ACCOMPLISH LEGITIMATE
MUNICIPAL AIMS.  IN SCHNEIDER V. STATE, 308 U.S. 147, THE COURT DEALT
WITH ORDINANCES OF FOUR DIFFERENT MUNICIPALITIES WHICH EITHER BANNED OR
IMPOSED PRIOR RESTRAINTS UPON THE DISTRIBUTION OF HANDBILLS.  IN
HOLDING THE ORDINANCES INVALID, THE COURT NOTED THAT WHERE LEGISLATIVE
ABRIDGMENT OF "FUNDAMENTAL PERSONAL RIGHTS AND LIBERTIES" IS ASSERTED,
"THE COURTS SHOULD BE ASTUTE TO EXAMINE THE EFFECT OF THE CHALLENGED
LEGISLATION.  MERE LEGISLATIVE PREFERENCES OR BELIEFS RESPECTING
MATTERS OF PUBLIC CONVENIENCE MAY WELL SUPPORT REGULATION DIRECTED AT
OTHER PERSONAL ACTIVITIES, BUT BE INSUFFICIENT TO JUSTIFY SUCH AS
DIMINISHES THE EXERCISE OF RIGHTS SO VITAL TO THE MAINTENANCE OF
DEMOCRATIC INSTITUTIONS."  308 U.S., AT 161.  IN CANTWELL V.
CONNECTICUT, 310 U.S. 296, THE COURT SAID THAT "CONDUCT REMAINS SUBJECT
TO REGULATION OF THE PROTECTION OF SOCIETY," BUT POINTED OUT THAT IN
EACH CASE "THE POWER TO REGULATE MUST BE SO EXERCISED AS NOT, IN
ATTAINING A PERMISSIBLE END, UNDULY TO INFRINGE THE PROTECTED
FREEDOM."  310 U.S., AT 304.  ILLUSTRATIONS OF THE SAME CONSTITUTIONAL
PRINCIPLE ARE TO BE FOUND IN MANY OTHER DECISIONS OF THE COURT, AMONG
THEM, MARTIN V. STRUTHERS, 319 U.S. 141; SAIA V. NEW YORK, 334 U.S.
558; AND KUNZ V. NEW YORK, 340 U.S. 290. 

AS RECENTLY AS LAST TERM WE HELD INVALID AN ORDINANCE PROHIBITING THE
DISTRIBUTION OF HANDBILLS BECAUSE THE BREADTH OF ITS APPLICATION WENT
FAR BEYOND WHAT WAS NECESSARY TO ACHIEVE A LEGITIMATE GOVERNMENTAL
PURPOSE.  TALLEY V. CALIFORNIA, 362 U.S. 60.  IN THAT CASE THE COURT
NOTED THAT IT HAD BEEN "URGED THAT THIS ORDINANCE IS AIMED AT PROVIDING
A WAY TO IDENTIFY THOSE RESPONSIBLE FOR FRAUD, FALSE ADVERTISING AND
LIBEL.  YET THE ORDINANCE IS IN NO MANNER SO LIMITED  ...  .  THEREFORE
WE DO NOT PASS ON THE VALIDITY OF AN ORDINANCE LIMITED TO PREVENT THESE
OR ANY OTHER SUPPOSED EVILS.  THIS ORDINANCE SIMPLY BARS ALL HANDBILLS
UNDER ALL CIRCUMSTANCES ANYWHERE THAT DO NOT HAVE THE NAMES AND
ADDRESSES PRINTED ON THEM IN THE PLACE THE ORDINANCE REQUIRES."  362
U.S., AT 64.    THE UNLIMITED AND INDISCRIMINATE SWEEP OF THE STATUTE
NOW BEFORE US BRINGS IT WITHIN THE BAN OF OUR PRIOR CASES.  THE
STATUTE'S COMPREHENSIVE INTERFERENCE WITH ASSOCIATIONAL FREEDOM GOES
FAR BEYOND WHAT MIGHT BE JUSTIFIED IN THE EXERCISE OF THE STATE'S
LEGITIMATE INQUIRY INTO THE FITNESS AND COMPETENCY OF ITS TEACHERS. 
THE JUDGMENTS IN BOTH CASES MUST BE REVERSED.  IT IS SO ORDERED. 

FN1  THE STATUTE IS IN SEVEN SECTIONS.  SECTION 1 PROVIDES:  "IT IS
HEREBY DECLARED THAT THE PURPOSE OF THIS ACT IS TO PROVIDE ASSISTANCE
IN THE ADMINISTRATION AND FINANCING OF THE PUBLIC SCHOOLS OF ARKANSAS,
AND INSTITUTIONS OF HIGHER LEARNING SUPPORTED WHOLLY OR IN PART BY
PUBLIC FUNDS, AND IT IS HEREBY DETERMINED THAT IT WILL BE BENEFICIAL TO
THE PUBLIC SCHOOLS AND INSTITUTIONS OF HIGHER LEARNING AND THE STATE OF
ARKANSAS, IF CERTAIN AFFIDAVITS OF MEMBERSHIP ARE REQUIRED AS
HEREINAFTER PROVIDED." 

BE EMPLOYED OR ELECTED IN ANY ELEMENTARY OR SECONDARY SCHOOL BY THE
DISTRICT OPERATING SUCH SCHOOL, AND NO INSTRUCTOR, PROFESSOR, OR OTHER
TEACHER SHALL BE EMPLOYED OR ELECTED IN ANY INSTITUTION OF HIGHER
LEARNING, OR OTHER EDUCATIONAL INSTITUTION SUPPORTED WHOLLY OR IN PART
BY PUBLIC FUNDS, BY THE TRUSTEES OR GOVERNING AUTHORITY THEREOF, UNTIL,
AS A CONDITION PRECEDENT TO SUCH EMPLOYMENT, SUCH SUPERINTENDENT,
PRINCIPAL, TEACHER, INSTRUCTOR OR PROFESSOR SHALL HAVE FILED WITH SUCH
BOARD OF TRUSTEES OR GOVERNING AUTHORITY AN AFFIDAVIT AS TO THE NAMES
AND ADDRESSES OF ALL INCORPORATED AND/OR UNINCORPORATED ASSOCIATIONS
AND ORGANIZATIONS THAT SUCH SUPERINTENDENT, PRINCIPAL, TEACHER,
INSTRUCTOR OR PROFESSOR IS OR WITHIN THE PAST FIVE YEARS HAS BEEN A
MEMBER OF, OR TO WHICH ORGANIZATION OR ASSOCIATION SUCH SUPERINTENDENT,
PRINCIPAL, TEACHER, INSTRUCTOR, PROFESSOR, OR OTHER TEACHER IS
PRESENTLY PAYING, OR WITHIN THE PAST FIVE YEARS HAS PAID REGULAR DUES,
OR TO WHICH THE SAME IS MAKING OR WITHIN THE PAST FIVE YEARS HAS MADE
REGULAR CONTRIBUTIONS." 


SCHOOL DISTRICT, BOARD OF TRUSTEES OF ANY INSTITUTION OF HIGHER
LEARNING, OR OTHER EDUCATIONAL INSTITUTION SUPPORTED WHOLLY OR IN PART
BY PUBLIC FUNDS, OR BY ANY GOVERNING AUTHORITY THEREOF, WITH ANY
SUPERINTENDENT, PRINCIPAL, TEACHER, INSTRUCTOR, PROFESSOR, OR OTHER
INSTRUCTIONAL PERSONNEL, WHO SHALL NOT HAVE FILED THE AFFIDAVIT
REQUIRED IN SECTION 2 HEREOF PRIOR TO THE EMPLOYMENT OR ELECTION OF
SUCH PERSON AND PRIOR TO THE MAKING OF SUCH CONTRACTS, SHALL BE NULL
AND VOID AND NO FUNDS SHALL BE PAID UNDER SAID CONTRACT TO SUCH
SUPERINTENDENT, PRINCIPAL, TEACHER, INSTRUCTOR, PROFESSOR, OR OTHER
INSTRUCTIONAL PERSONNEL; ANY FUNDS SO PAID UNDER SAID CONTRACT TO SUCH
SUPERINTENDENT, PRINCIPAL, TEACHER, INSTRUCTOR, PROFESSOR, OR OTHER
INSTRUCTIONAL PERSONNEL, MAY BE RECOVERED FROM THE PERSON RECEIVING THE
SAME AND/OR FROM THE BOARD OF TRUSTEES OR OTHER GOVERNING AUTHORITY BY
SUIT FILED IN THE CIRCUIT COURT OF THE COUNTY IN WHICH SUCH CONTRACT
WAS MADE, AND ANY JUDGMENT ENTERED BY SUCH COURT IN SUCH CAUSE OF
ACTION SHALL BE A PERSONAL JUDGMENT AGAINST THE DEFENDANT THEREIN AND
UPON THE OFFICIAL BONDS MADE BY SUCH DEFENDANTS, IF ANY SUCH BONDS BE
IN EXISTENCE." 

GUILTY OF PERJURY, PUNISHABLE BY A FINE, AND SHALL FORFEIT HIS LICENSE
TO TEACH IN ANY SCHOOL OR OTHER INSTITUTION OF LEARNING SUPPORTED
WHOLLY OR IN PART BY PUBLIC FUNDS. 



"IT IS HEREBY DETERMINED THAT THE DECISIONS OF THE UNITED STATES
SUPREME COURT IN THE SCHOOL SEGREGATION CASES REQUIRE SOLUTION OF A
GREAT VARIETY OF LOCAL PUBLIC SCHOOL PROBLEMS OF CONSIDERABLE
COMPLEXITY IMMEDIATELY AND WHICH INVOLVE THE HEALTH, SAFETY AND GENERAL
WELFARE OF THE PEOPLE OF THE STATE OF ARKANSAS, AND THAT THE PURPOSE OF
THIS ACT IS TO ASSIST IN THE SOLUTION OF THESE PROBLEMS AND TO PROVIDE
FOR THE MORE EFFICIENT ADMINISTRATION OF PUBLIC EDUCATION." 

FN2  IN THE SAME PROCEEDING THE COURT HELD CONSTITUTIONALLY INVALID
AN ARKANSAS STATUTE MAKING IT UNLAWFUL FOR ANY MEMBER OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE TO BE EMPLOYED BY THE
STATE OF ARKANSAS OR ANY OF ITS SUBDIVISIONS.  174 F. SUPP. 351. 

FN3  THE AFFIRMATION RECITED THAT CARR WAS "CONSCIENTIOUSLY OPPOSED
TO TAKING AN OATH OR SWEARING IN ANY FORM  ...  ." 

FN4  THE ACTUAL HOLDINGS IN ADLER AND BEILAN, INVOLVING THE VALIDITY
OF TEACHERS' DISCHARGES, ARE NOT RELEVANT TO THE PRESENT CASE. 

FN5  THE DECLARED PURPOSE OF ACT 10 IS "TO PROVIDE ASSISTANCE IN THE
ADMINISTRATION AND FINANCING OF THE PUBLIC SCHOOLS  ...  ."  THE
DECLARED JUSTIFICATION FOR THE EMERGENCY CLAUSE IS "TO ASSIST IN THE
SOLUTION" OF PROBLEMS RAISED BY "THE DECISIONS OF THE UNITED STATES
SUPREME COURT IN THE SCHOOL SEGREGATION CASES."  SEE NOTE 1.  BUT
NEITHER THE BREADTH AND GENERALITY OF THE DECLARED PURPOSE NOR THE
POSSIBLE IRRELEVANCE TO THE EMERGENCY PROVISION DETRACTS FROM THE
EXISTENCE OF AN ACTUAL RELEVANT STATE INTEREST IN THE INQUIRY. 

FN6  THE RECORD CONTAINS AN OPINION OF THE STATE ATTORNEY GENERAL
THAT "IT IS AN ADMINISTRATIVE DETERMINATION, TO BE MADE BY THE
RESPECTIVE BOARDS, AS TO THE DISCLOSURE OF INFORMATION CONTAINED IN THE
AFFIDAVITS."  THE SUPREME COURT OF ARKANSAS HAS HELD ONLY THAT "THE
AFFIDAVITS NEED NOT BE OPENED TO PUBLIC INSPECTION  ...  ."  231 ARK.
641, 646, 331 S.W.2D 701, 704. 

FN7  IN THE STATE COURT PROCEEDINGS A WITNESS WHO WAS A MEMBER OF THE
CAPITAL CITIZENS COUNCIL TESTIFIED THAT HIS GROUP INTENDED TO GAIN
ACCESS TO SOME OF THE ACT 10 AFFIDAVITS WITH A VIEW TO ELIMINATING FROM
THE SCHOOL SYSTEM PERSONS WHO SUPPORTED ORGANIZATIONS UNPOPULAR WITH
THE GROUP.  AMONG SUCH ORGANIZATIONS HE NAMED THE AMERICAN CIVIL
LIBERTIES UNION, THE URBAN LEAGUE, THE AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS, AND THE WOMEN'S EMERGENCY COMMITTEE TO OPEN OUR
SCHOOLS. 

FN8  IN OTHER AREAS, INVOLVING DIFFERENT CONSTITUTIONAL ISSUES, MORE
ADMINISTRATIVE LEEWAY HAS BEEN THOUGHT ALLOWABLE IN THE INTEREST OF
INCREASED EFFICIENCY IN ACCOMPLISHING A CLEARLY CONSTITUTIONAL CENTRAL
PURPOSE.  SEE PURITY EXTRACT CO. V. LYNCH, 226 U.S. 192; JACOB RUPPERT
V. CAFFEY, 251 U.S. 264; SCHLESINGER V. WISCONSIN, 270 U.S. 230, 241
(DISSENTING OPINION); QUEENSIDE HILLS CO. V. SAXL, 328 U.S. 80, 83. 
BUT CF. DEAN MILK CO. V. MADISON, 340 U.S. 349. 

FN9  SEE FREUND, COMPETING FREEDOMS IN AMERICAN CONSTITUTIONAL LAW,
13 U. OF CHICAGO CONFERENCE SERIES 26, 32-33; RICHARDSON, FREEDOM OF
EXPRESSION AND THE FUNCTION OF COURTS, 65 HARV. L. REV. 1, 6, 23-24;
COMMENT, LEGISLATIVE INQUIRY INTO POLITICAL ACTIVITY:  FIRST AMENDMENT
IMMUNITY FROM COMMITTEE INTERROGATION, 65 YALE L.J. 1159, 1173-1175. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

AS ONE WHO HAS STRONG VIEWS AGAINST CRUDE INTRUSIONS BY THE STATE
INTO THE ATMOSPHERE OF CREATIVE FREEDOM IN WHICH ALONE THE SPIRIT AND
MIND OF A TEACHER CAN FRUITFULLY FUNCTION, I MAY FIND DISPLEASURE WITH
THE ARKANSAS LEGISLATION NOW UNDER REVIEW.  BUT IN MAINTAINING THE
DISTINCTION BETWEEN PRIVATE VIEWS AND CONSTITUTIONAL RESTRICTIONS, I AM
CONSTRAINED TO FIND THAT IT DOES NOT EXCEED THE PERMISSIBLE RANGE OF
STATE ACTION LIMITED BY THE FOURTEENTH AMENDMENT.  BY WAY OF EMPHASIS I
THEREFORE ADD A FEW WORDS TO THE DISSENT OF MR. JUSTICE HARLAN, IN
WHICH I CONCUR. 

IT IS ESSENTIAL, AT THE OUTSET, TO ESTABLISH WHAT IS NOT INVOLVED IN
THIS LITIGATION: 

(1)  AS THE COURT RECOGNIZES, THIS IS NOT A CASE WHERE, AS IN
N.A.A.C.P. V. ALABAMA, 357 U.S. 449, AND BATES V. LITTLE ROCK, 361 U.S.
516, A STATE, ASSERTING THE POWER TO COMPEL DISCLOSURE OF
ORGANIZATIONAL AFFILIATIONS, CAN SHOW NO RATIONAL RELATION BETWEEN
DISCLOSURE AND A GOVERNMENTAL INTEREST JUSTIFYING IT.  THOSE CASES ARE
RELEVANT HERE ONLY BECAUSE OF THEIR RECOGNITION THAT AN INTEREST IN
PRIVACY, IN NON-DISCLOSURE, MAY UNDER APPROPRIATE CIRCUMSTANCES CLAIM
CONSTITUTIONAL PROTECTION.  THE QUESTION HERE IS WHETHER THAT INTEREST
IS OVERBORNE BY A COUNTERVAILING PUBLIC INTEREST.  TO THIS CONCRETE,
LIMITED QUESTION - WHETHER THE STATE'S INTEREST IN KNOWING THE NATURE
OF THE ORGANIZATIONAL ACTIVITIES OF TEACHERS EMPLOYED BY IT OR BY
INSTITUTIONS WHICH IT SUPPORTS, AS A BASIS FOR APPRAISING THE FITNESS
OF THOSE TEACHERS FOR THE POSITIONS WHICH THEY HOLD, OUTWEIGHS THE
INTEREST RECOGNIZED IN N.A.A.C.P. AND BATES - THOSE EARLIER DECISIONS
THEMSELVES GIVE NO ANSWER. 

(2)  THE COURT'S HOLDING THAT THE ARKANSAS STATUTE IS
UNCONSTITUTIONAL DOES NOT, APPARENTLY, REST UPON THE THREAT THAT THE
INFORMATION WHICH IT REQUIRES OF TEACHERS WILL BE REVEALED TO THE
PUBLIC.  IN VIEW OF THE OPINION OF THE SUPREME COURT OF ARKANSAS,
DECISION HERE COULD NOT, I BELIEVE, TURN ON A CLAIM THAT THE TEACHERS'
AFFIDAVITS WILL NOT REMAIN CONFIDENTIAL.  THAT COURT HAS EXPRESSLY SAID
THAT "INASMUCH AS THE VALIDITY OF THE ACT DEPENDS UPON ITS BEING
CONSTRUED AS A BONA FIDE LEGISLATIVE EFFORT TO PROVIDE SCHOOL BOARDS
WITH NEEDED INFORMATION, IT NECESSARILY FOLLOWS THAT THE AFFIDAVITS
NEED NOT BE OPENED TO PUBLIC INSPECTION, FOR THE PERMISSIBLE PURPOSE OF
THE STATUTE IS TO ENLIGHTEN THE SCHOOL BOARD ALONE."  231 ARK. 641,
646, 331 S.W.2D 701, 704.  IF THE VALIDITY OF THE STATUTE DEPENDED ON
THIS MATTER, THE PRONOUNCEMENT OF THE STATE'S HIGHEST JUDICIAL ORGAN
WOULD HAVE TO BE READ AS ESTABLISHING - THE EARLIER VIEW OF THE STATE
ATTORNEY GENERAL NOTWITHSTANDING - THAT THE STATUTE DOES NOT AUTHORIZE
THE MAKING PUBLIC OF THE AFFIDAVITS.  EVEN WERE THE ARKANSAS COURT'S
LANGUAGE FAR MORE AMBIGUOUS THAN IT IS, IT WOULD BE OUR DUTY SO TO
UNDERSTAND ITS OPINION, IN ACCORDANCE WITH THE PRINCIPLE THAT "SO FAR
AS STATUTES FAIRLY MAY BE CONSTRUED IN SUCH A WAY AS TO AVOID DOUBTFUL
CONSTITUTIONAL QUESTIONS THEY SHOULD BE SO CONSTRUED."  FOX V.
WASHINGTON, 236 U.S. 273, 277. 

(3)  THIS IS NOT A CASE IN WHICH LOVELL V. GRIFFIN, 303 U.S. 444;
CANTWELL V. CONNECTICUT, 310 U.S. 296; SAIA V. NEW YORK, 334 U.S. 558;
AND KUNZ V. NEW YORK, 340 U.S. 290, CALL FOR CONDEMNATION OF THE
"BREADTH" OF THE STATUTE.  THOSE DECISIONS STRUCK DOWN LICENSING LAWS
WHICH VESTED IN ADMINISTRATIVE OFFICIALS A POWER OF CENSORSHIP OVER
COMMUNICATIONS NOT CONFINED WITHIN STANDARDS DESIGNED TO CURB THE
DANGERS OF ARBITRARY OR DISCRIMINATORY OFFICIAL ACTION.  THE "BREADTH"
WITH WHICH THE CASES WERE CONCERNED WAS THE BREADTH OF UNRESTRICTED
DISCRETION LEFT TO A CENSOR, WHICH PERMITTED HIM TO MAKE HIS OWN
SUBJECTIVE OPINIONS THE PRACTICALLY UNREVIEWABLE MEASURE OF PERMISSIBLE
SPEECH.  (FN1)  NOR IS THIS A CASE OF THE NATURE OF THORNHILL V.
ALABAMA, 310 U.S. 88, AND HERNDON V. LOWRY, 301 U.S. 242, (FN2)
INVOLVING PENAL STATUTES WHICH THE COURT FOUND IMPERMISSIBLY "BROAD" IN
QUITE ANOTHER SENSE.  PROHIBITING, INDISCRIMINATELY, ACTIVITY WITHIN
AND WITHOUT THE SPHERE OF THE FOURTEENTH AMENDMENT'S PROTECTION OF FREE
EXPRESSION, THOSE STATUTES HAD THE DOUBLE VICE OF DETERRING THE
EXERCISE OF CONSTITUTIONAL FREEDOMS BY MAKING THE UNCERTAIN LINE OF THE
AMENDMENT'S APPLICATION DETERMINATIVE OF CRIMINALITY AND OF PRESCRIBING
INDEFINITE STANDARDS OF GUILT, THEREBY ALLOWING THE POTENTIAL VAGARIES
AND PREJUDICES OF JURIES, EFFECTIVELY INSULATED AGAINST CONTROL OF
REVIEWING COURTS, THE POWER TO INTRUDE UPON THE PROTECTED SPHERE.  THE
STATUTE CHALLENGED IN THE PRESENT CASE INVOLVES NEITHER ADMINISTRATIVE
DISCRETION TO CENSOR NOR VAGUE, OVERREACHING TESTS OF CRIMINAL
RESPONSIBILITY. 

WHERE STATE ASSERTIONS OF AUTHORITY ARE ATTACKED AS IMPERMISSIBLY
RESTRICTIVE UPON THOUGHT, EXPRESSION, OR ASSOCIATION, THE EXISTENCE VEL
NON OF OTHER POSSIBLE LESS RESTRICTIVE MEANS OF ACHIEVING THE OBJECT
WHICH THE STATE SEEKS IS, OF COURSE, A CONSTITUTIONALLY RELEVANT
CONSIDERATION.   THIS IS NOT BECAUSE SOME NOVEL, PARTICULAR RULE OF LAW
OBTAINS IN CASES OF THIS KIND.  WHENEVER THE REASONABLENESS AND
FAIRNESS OF A MEASURE ARE AT ISSUE - AS THEY ARE IN EVERY CASE IN WHICH
THIS COURT MUST APPLY THE STANDARDS OF REASON AND FAIRNESS, WITH THE
APPROPRIATE SCOPE TO BE GIVEN THOSE CONCEPTS, IN ENFORCING THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AS A LIMITATION UPON STATE
ACTION - THE AVAILABILITY OR UNAVAILABILITY OF ALTERNATIVE METHODS OF
PROCEEDING IS GERMANE.  THUS, A STATE MAY NOT PROHIBIT THE DISTRIBUTION
OF LITERATURE ON ITS CITIES' STREETS AS A MEANS OF PREVENTING
LITTERING, WHEN THE SAME END MIGHT BE ACHIEVED WITH ONLY SLIGHTLY
GREATER INCONVENIENCE BY APPLYING THE SANCTIONS OF THE PENAL LAW NOT TO
THE PAMPHLETEER WHO DISTRIBUTES THE PAPER BUT TO THE RECIPIENT WHO
CRUMPLES IT AND THROWS IT AWAY.  HAGUE V. C.I.O., 307 U.S. 496;
SCHNEIDER V. STATE, 308 U.S. 147; JAMISON V. TEXAS, 318 U.S. 413.  NOR
MAY A STATE PROTECT ITS POPULATION FROM THE DANGERS AND INCITEMENTS OF
SALACIOUS BOOKS BY RESTRICTING THE READING MATTER OF ADULTS TO THAT
WHICH WOULD BE HARMLESS TO THE SUSCEPTIBLE MIND OF A CHILD.  BUTLER V.
MICHIGAN, 352 U.S. 380.  AND SEE DE JONGE V. OREGON, 299 U.S. 353;
TALLEY V. CALIFORNIA, 362 U.S. 60.  (FN3)  BUT THE CONSIDERATION OF
FEASIBLE ALTERNATIVE MODES OF REGULATION IN THESE CASES DID NOT IMPLY
THAT THE COURT MIGHT SUBSTITUTE ITS OWN CHOICE AMONG ALTERNATIVES FOR
THAT OF A STATE LEGISLATURE, OR THAT THE STATE WERE TO BE RESTRICTED TO
THE "NARROWEST" WORKABLE MEANS OF ACCOMPLISHING AN END.  SEE PRINCE V.
MASSACHUSETTS, 321 U.S. 158, 169-170.  CONSIDERATION OF ALTERNATIVES
MAY FOCUS THE PRECISE EXERCISE OF STATE LEGISLATIVE AUTHORITY WHICH IS
TESTED IN THIS COURT BY THE STANDARD OF REASONABLENESS, BUT IT DOES NOT
ALTER OR DISPLACE THAT STANDARD.  THE ISSUE REMAINS WHETHER, IN LIGHT
OF THE PARTICULAR KIND OF RESTRICTION UPON INDIVIDUAL LIBERTY WHICH A
REGULATION ENTAILS, IT IS REASONABLE FOR A LEGISLATURE TO CHOOSE THAT
FORM OF REGULATION RATHER THAN OTHERS LESS RESTRICTIVE.  TO THAT
DETERMINATION, THE RANGE OF JUDGMENT EASILY OPEN TO A LEGISLATURE IN
CONSIDERING THE RELATIVE DEGREES OF EFFICIENCY OF ALTERNATIVE MEANS IN
ACHIEVING THE END IT SEEKS IS PERTINENT. 

IN THE PRESENT CASE THE COURT STRIKES DOWN AN ARKANSAS STATUTE
REQUIRING THAT TEACHERS DISCLOSE TO SCHOOL OFFICIALS ALL OF THEIR
ORGANIZATIONAL RELATIONSHIPS, ON THE GROUND THAT "MANY SUCH
RELATIONSHIPS COULD HAVE NO POSSIBLE BEARING UPON THE TEACHER'S
OCCUPATIONAL COMPETENCE OR FITNESS."   GRANTED THAT A GIVEN TEACHER'S
MEMBERSHIP IN THE FIRST STREET CONGREGATION IS, STANDING ALONE, OF
LITTLE RELEVANCE TO WHAT MAY RIGHTLY BE EXPECTED OF A TEACHER, IS THAT
MEMBERSHIP EQUALLY IRRELEVANT WHEN IT IS DISCOVERED THAT THE TEACHER IS
IN FACT A MEMBER OF THE FIRST STREET CONGREGATION AND THE SECOND STREET
CONGREGATION AND THE THIRD STREET CONGREGATION AND THE 4-H CLUB AND THE
3-H CLUB AND HALF A DOZEN OTHER GROUPS?  PRESUMABLY, A TEACHER MAY HAVE
SO MANY DIVERS ASSOCIATIONS, SO MANY DIVERS COMMITMENTS, THAT THEY
CONSUME HIS TIME AND ENERGY AND INTEREST AT THE EXPENSE OF HIS WORK OR
EVEN OF HIS PROFESSIONAL DEDICATION.  UNLIKE WHOLLY INDIVIDUAL
INTERESTS, ORGANIZATIONAL CONNECTIONS - BECAUSE THEY INVOLVE
OBLIGATIONS UNDERTAKEN WITH RELATION TO OTHER PERSONS - MAY BECOME
INESCAPABLY DEMANDING AND DISTRACTING.  SURELY, A SCHOOL BOARD IS
ENTITLED TO INQUIRE WHETHER ANY OF ITS TEACHERS HAS PLACED HIMSELF, OR
IS PLACING HIMSELF, IN A CONDITION WHERE HIS WORK MAY SUFFER.  OF
COURSE, THE STATE MIGHT ASK:  "TO HOW MANY ORGANIZATIONS DO YOU
BELONG?"  OR "HOW MUCH TIME DO YOU EXPEND AT ORGANIZATIONAL ACTIVITY?" 
BUT THE ANSWER TO SUCH QUESTIONS COULD REASONABLY BE REGARDED BY A
STATE LEGISLATURE AS INSUFFICIENT, BOTH BECAUSE THE VERACITY OF THE
ANSWER IS MORE DIFFICULT TO TEST, IN CASES WHERE DOUBTS AS TO VERACITY
MAY ARISE, THAN IN THE CASE OF THE ANSWERS REQUIRED BY THE ARKANSAS
STATUTE, AND BECAUSE AN ESTIMATE OF TIME PRESENTLY SPENT IN
ORGANIZATIONAL ACTIVITY REVEALS NOTHING AS TO THE QUALITY AND NATURE OF
THAT ACTIVITY, UPON THE BASIS OF WHICH, NECESSARILY, JUDGMENT OR
PROPHESY OF THE EXTENT OF FUTURE INVOLVEMENT MUST BE BASED.  A
TEACHER'S ANSWERS TO THE QUESTIONS WHICH ARKANSAS ASKS, MOREOVER, MAY
SERVE THE PURPOSE OF MAKING KNOWN TO SCHOOL AUTHORITIES PERSONS WHO
COME INTO CONTACT WITH THE TEACHER IN ALL OF THE PHASES OF HIS ACTIVITY
IN THE COMMUNITY, AND WHO CAN BE QUESTIONED, IF NEED BE, CONCERNING THE
TEACHER'S CONDUCT IN MATTERS WHICH THIS COURT CAN CERTAINLY NOT NOW SAY
ARE LACKING IN ANY PERTINENCE TO PROFESSIONAL FITNESS.  IT IS DIFFICULT
TO UNDERSTAND HOW THESE PARTICULAR ENDS COULD BE ACHIEVED BY ASKING
"CERTAIN OF THE STATE'S TEACHERS ABOUT ALL THEIR ORGANIZATIONAL
RELATIONSHIPS," OR "ALL OF ITS TEACHERS HOW MANY ASSOCIATIONS CURRENTLY
INVOLVE THEM, OR DURING HOW MANY HOURS; AND DIFFICULT, THEREFORE, TO
APPRECIATE WHY THE COURT DEEMS UNREASONABLE AND FORBIDS WHAT ARKANSAS
DOES ASK. 

IF I DISSENT FROM THE COURT'S DISPOSITION IN THESE CASES, IT IS NOT
THAT I PUT A LOW VALUE ON ACADEMIC FREEDOM.  SEE WIEMAN V. UPDEGRAFF,
344 U.S. 183, 194 (CONCURRING OPINION); SWEEZY V. NEW HAMPSHIRE, 354
U.S. 234, 255 (CONCURRING OPINION).  IT IS BECAUSE THAT VERY FREEDOM,
IN ITS MOST CREATIVE REACHES, IS DEPENDENT IN NO SMALL PART UPON THE
CAREFUL AND DISCRIMINATING SELECTION OF TEACHERS.  THIS PROCESS OF
SELECTION IS AN INTRICATE AFFAIR, A MATTER OF FINE JUDGMENT, AND IF IT
IS TO BE INFORMED, IT MUST BE BASED UPON A COMPREHENSIVE RANGE OF
INFORMATION WHICH THE STATUTE REQUIRES - AND WHICH MAY NOT BE OTHERWISE
ACQUIRED THAN BY ASKING THE QUESTION WHICH IT ASKS - IS GERMANE TO THAT
SELECTION.  NOR, ON THIS RECORD, CAN I ATTRIBUTE TO THE STATE A PURPOSE
TO EMPLOY THE ENACTMENT AS A DEVICE FOR THE ACCOMPLISHMENT OF WHAT IS
CONSTITUTIONALLY FORBIDDEN.  OF COURSE, IF THE INFORMATION GATHERED BY
THE REQUIRED AFFIDAVITS IS USED TO FURTHER A SCHEME OF TERMINATING THE
EMPLOYMENT OF TEACHERS SOLELY BECAUSE OF THEIR MEMBERSHIP IN UNPOPULAR
ORGANIZATIONS, THAT USE WILL RUN AFOUL OF THE FOURTEENTH AMENDMENT.  IT
WILL BE TIME ENOUGH, IF SUCH USE IS MADE, TO HOLD THE APPLICATION OF
THE STATUTE UNCONSTITUTIONAL.  SEE YICK WO V. HOPKINS, 118 U.S. 356. 
BECAUSE I DO NOT FIND THAT THE DISCLOSURE OF TEACHERS' ASSOCIATIONS TO
THEIR SCHOOL BOARDS IS, WITHOUT MORE, SUCH A RESTRICTION UPON THEIR
LIBERTY, OR UPON THAT OF THE COMMUNITY, AS TO OVERBALANCE THE STATE'S
INTEREST IN ASKING THE QUESTION, I WOULD AFFIRM THE JUDGMENTS BELOW. 

I AM AUTHORIZED TO SAY THAT MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND
MR. JUSTICE WHITTAKER AGREE WITH THIS OPINION. 

FN1  SEE ALSO HAGUE V. C.I.O., 307 U.S. 496; SCHNEIDER V. STATE, 308
U.S. 147 (THE IRVINGTON ORDINANCE); LARGENT V. TEXAS, 318 U.S. 418;
JONES V. OPELIKA, 319 U.S. 103, VACATING 316 U.S. 584 (THE OPELIKA
ORDINANCE); NIEMOTKO V. MARYLAND, 340 U.S. 268; JOSEPH BURSTYN, INC.,
V. WILSON, 343 U.S. 495; GELLING V. TEXAS, 343 U.S. 960; SUPERIOR
FILMS, INC., V. DEPARTMENT OF EDUCATION, 346 U.S. 587; STAUB V. BAXLEY,
355 U.S. 313; CF. MARSH V. ALABAMA, 326 U.S. 501; TUCKER V. TEXAS, 326
U.S. 517.  THE COMMON-LAW COUNT IN THE CANTWELL CASE INVOLVED
CONSIDERATIONS SIMILAR TO THOSE WHICH WERE DETERMINATIVE OF THE
DECISIONS CITED IN TEXT AND NOTE, AT NOTE 2, INFRA. 

FN2  SEE ALSO STROMBERG V. CALIFORNIA, 283 U.S. 359; WINTERS V. NEW
YORK, 333 U.S. 507. 

FN3  LANGUAGE CHARACTERIZING STATE STATUTES AS OVERLY BROAD HAS
SOMETIMES BEEN FOUND IN OPINIONS WHERE IT WAS NECESSARY TO THE RESULT,
AND MERELY MEANT TO EXPRESS THE IDEA THAT WHATEVER STATE INTEREST WAS
THERE ASSERTED AS UNDERLYING A REGULATION WAS INSUFFICIENT TO JUSTIFY
THE REGULATION'S APPLICATION TO PARTICULAR CIRCUMSTANCES FAIRLY WITHIN
THE FOURTEENTH AMENDMENT'S PROTECTION.  COMPARE THOMAS V. COLLINS, 323
U.S. 516, WITH FISKE V. KANSAS, 274 U.S. 380.  COMPARE MARTIN V.
STRUTHERS, 319 U.S. 141, WITH BEARD V. ALEXANDRIA, 341 U.S. 622. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

OF COURSE THIS DECISION HAS A NATURAL TENDENCY TO ENLIST SUPPORT,
INVOLVING AS IT DOES AN UNUSUAL STATUTE THAT TOUCHES CONSTITUTIONAL
RIGHTS WHOSE PROTECTION IN THE CONTEXT OF THE RACIAL SITUATION IN
VARIOUS PARTS OF THE COUNTRY DEMANDS THE UNREMITTING VIGILANCE OF THE
COURTS.  YET THAT VERY CIRCUMSTANCE ALSO SERVES TO REMIND OF THE
RESTRAINTS THAT ATTEND CONSTITUTIONAL ADJUDICATION.  IT MUST BE
EMPHASIZED THAT NEITHER OF THESE CASES ACTUALLLY PRESENTS AN ISSUE OF
RACIAL DISCRIMINATION.   THE STATUTE ON ITS FACE APPLIES TO ALL
ARKANSAS TEACHERS IRRESPECTIVE OF RACE, AND THERE IS NO SHOWING THAT IT
HAS BEEN DISCRIMINATORILY ADMINISTERED. 

THE ISSUE IS WHETHER, CONSISTENTLY WITH THE FOURTEENTH AMENDMENT, A
STATE MAY REQUIRE TEACHERS IN ITS PUBLIC SCHOOLS OR COLLEGES TO
DISCLOSE, AS A CONDITION PRECEDENT TO THEIR INITIAL OR CONTINUED
EMPLOYMENT, ALL ORGANIZATIONS TO WHICH THEY HAVE BELONGED, PAID DUES,
OR CONTRIBUTED WITHIN THE PAST FIVE YEARS.  SINCE I BELIEVE THAT SUCH A
REQUIREMENT CANNOT BE SAID TO TRANSGRESS THE CONSTITUTIONAL LIMITS OF A
STATE'S CONCEDED AUTHORITY TO DETERMINE THE QUALIFICATIONS OF THOSE
SERVING IT AS TEACHERS, I AM BOUND TO CONSIDER THAT ARKANSAS HAD THE
RIGHT TO PASS THE STATUTE IN QUESTION, AND THEREFORE CONCEIVE IT MY
DUTY TO DISSENT. 

THE LEGAL FRAMEWORK IN WHICH THE ISSUE MUST BE JUDGED IS CLEAR.  THE
RIGHTS OF FREE SPEECH AND ASSOCIATION EMBODIED IN THE "LIBERTY" ASSURED
AGAINST STATE ACTION BY THE FOURTEENTH AMENDMENT (SEE DE JONGE V.
OREGON, 299 U.S. 353, 364; GITLOW V. NEW YORK, 268 U.S. 652, 672,
DISSENTING OPINION OF HOLMES, J.)  ARE NOT ABSOLUTE.  NEAR V.
MINNESOTA, 283 U.S. 697, 708; WHITNEY V. CALIFORNIA, 274 U.S. 357, 373
(CONCURRING OPINION OF BRANDEIS, J.).  WHERE OFFICIAL ACTION IS CLAIMED
TO INVADE THESE RIGHTS, THE CONTROLLING INQUIRY IS WHETHER SUCH ACTION
IS JUSTIFIABLE ON THE BASIS OF A SUPERIOR GOVERNMENTAL INTEREST TO
WHICH SUCH INDIVIDUAL RIGHTS MUST YIELD.  WHEN THE ACTION COMPLAINED OF
PERTAINS TO THE REALM OF INVESTIGATION, OUR INQUIRY HAS A DOUBLE
ASPECT:  FIRST, WHETHER THE INVESTIGATION RELATES TO A LEGITIMATE
GOVERNMENTAL PURPOSE; SECOND, WHETHER, JUDGED IN THE LIGHT OF THAT
PURPOSE, THE QUESTIONED ACTION HAS SUBSTANTIAL RELEVANCE THERETO.  SEE
BARENBLATT V. UNITED STATES, 360 U.S. 109; UPHAUS V. WYMAN, 360 U.S.
72. 

IN THE TWO CASES AT HAND, I THINK BOTH FACTORS ARE SATISFIED.  IT IS
SURELY INDISPUTABLE THAT A STATE HAS THE RIGHT TO CHOOSE ITS TEACHERS
ON THE BASIS OF FITNESS.  AND I THINK IT EQUALLY CLEAR, AS THE COURT
APPEARS TO RECOGNIZE, THAT INFORMATION ABOUT A TEACHER'S ASSOCIATIONS
MAY BE USEFUL TO SCHOOL AUTHORITIES IN DETERMINING THE MORAL,
PROFESSIONAL, AND SOCIAL QUALIFICATIONS OF THE TEACHER, AS WELL AS IN
DETERMINING THE TYPE OF SERVICE FOR WHICH HE WILL BE BEST SUITED IN THE
EDUCATIONAL SYSTEM.  SEE ADLER V. BOARD OF EDUCATION, 342 U.S. 485;
BEILAN V. BOARD OF PUBLIC EDUCATION, 357 U.S. 399; SEE ALSO SLOCHOWER
V. BOARD OF EDUCATION, 350 U.S. 551.  FURTHERMORE, I TAKE THE COURT TO
ACKNOWLEDGE THAT, AGREEABLY TO OUR PREVIOUS DECISIONS, THE STATE MAY
ENQUIRE INTO ASSOCIATIONS TO THE EXTENT THAT THE RESULTING INFORMATION
MAY BE IN AID OF THAT LEGITIMATE PURPOSE.  THESE CASES THEREFORE DO NOT
PRESENT A SITUATION SUCH AS WE HAD IN N.A.A.C.P. V. ALABAMA, 357 U.S.
449, AND BATES V. LITTLE ROCK, 361 U.S. 516, WHERE THE REQUIRED
DISCLOSURE BEARS NO SUBSTANTIAL RELEVANCE TO A LEGITIMATE STATE
INTEREST. 

DESPITE THESE CONSIDERATIONS THIS STATUTE IS STRICKEN DOWN BECAUSE,
IN THE COURT'S VIEW, IT IS TOO BROAD, BECAUSE IT ASKS MORE THAN MAY BE
NECESSARY TO EFFECTUATE THE STATE'S LEGITIMATE INTEREST.  SUCH A
STATUTE, IT IS SAID, CANNOT JUSTIFY THE INHIBITION ON FREEDOM OF
ASSOCIATION WHICH SO BLANKET AN INQUIRY MAY ENTAIL.  CF. N.A.A.C.P. V.
ALABAMA, SUPRA; BATES V. LITTLE ROCK, SUPRA. 

I AM UNABLE TO SUBSCRIBE TO THIS VIEW BECAUSE I BELIEVE IT IMPOSSIBLE
TO DETERMINE A PRIORI THE PLACE WHERE THE LINE SHOULD BE DRAWN BETWEEN
WHAT WOULD BE PERMISSIBLE INQUIRY AND OVERBROAD INQUIRY IN A SITUATION
LIKE THIS.  CERTAINLY THE COURT DOES NOT POINT THAT PLACE OUT.  THERE
CAN BE LITTLE DOUBT THAT MUCH OF THE ASSOCIATIONAL INFORMATION CALLED
FOR BY THE STATUTE WILL BE OF LITTLE OR NO USE WHATEVER TO THE SCHOOL
AUTHORITIES, BUT I DO NOT UNDERSTAND HOW THOSE AUTHORITIES CAN BE
EXPECTED TO FIX IN ADVANCE THE TERMS OF THEIR ENQUIRY SO THAT IT WILL
YIELD ONLY RELEVANT INFORMATION. 

I DO NOT MEAN TO SAY THAT ALTERNATIVES SUCH AS AN ENQUIRY LIMITED TO
THE NAMES OF ORGANIZATIONS OF WHOSE CHARACTER THE STATE IS PRESENTLY
AWARE, OR TO A CLASS OF ORGANIZATIONS DEFINED BY THEIR PURPOSES, WOULD
NOT BE MORE CONSONANT WITH A DECENT RESPECT FOR THE PRIVACY OF THE
TEACHER, NOR THAT SUCH ALTERNATIVES WOULD BE UTTERLY UNWORKABLE.  I DO
SEE, HOWEVER, THAT THESE ALTERNATIVES SUFFER FROM DEFICIENCIES SO
OBVIOUS WHERE A STATE IS BENT UPON DISCOVERING EVERYTHING WHICH WOULD
BE RELEVANT TO ITS PROPER PURPOSES, THAT I CANNOT SAY THAT IT MUST, AS
A MATTER OF CONSTITUTIONAL COMPULSION, ADOPT SOME SUCH MEANS INSTEAD OF
THOSE WHICH HAVE BEEN CHOSEN HERE. 

FINALLY, I NEED HARDLY SAY THAT IF IT TURNS OUT THAT THIS STATUTE IS
ABUSED, EITHER BY AN UNWARRANTED PUBLICIZING OF THE REQUIRED
ASSOCIATIONAL DISCLOSURES OR OTHERWISE, WE WOULD HAVE A DIFFERENT KIND
OF CASE THAN THOSE PRESENTLY BEFORE US.  SEE LASSITER V. NORTHAMPTON
ELECTIONS BOARD, 360 U.S. 45, 53-54.  ALL THAT IS NOW HERE IS THE
VALIDITY OF THE STATUTE ON ITS FACE, AND I AM UNABLE TO AGREE THAT IN
THIS POSTURE OF THINGS THE ENACTMENT CAN BE SAID TO BE
UNCONSTITUTIONAL. 

I WOULD AFFIRM IN BOTH CASES. 
..END :




















BUSH V. ORLEANS PARISH SCHOOL BOARD 364 U.S. 500 


DECIDED DECEMBER 12, 1960.* 

*TOGETHER WITH UNITED STATES V. LOUISIANA ET AL. AND WILLIAMS ET AL.
V. DAVIS ET AL., ALSO ON MOTIONS FOR STAY. 


A THREE-JUDGE FEDERAL DISTRICT COURT DECLARED UNCONSTITUTIONAL, AND
TEMPORARILY ENJOINED ENFORCEMENT OF, A SERIES OF ENACTMENTS OF THE
LOUISIANA LEGISLATURE DESIGNED TO PREVENT PARTIAL DESEGREGATION OF THE
RACES IN CERTAIN PUBLIC SCHOOLS IN NEW ORLEANS PURSUANT TO AN EARLIER
FEDERAL COURT ORDER.  IT WAS CONTENDED, INTER ALIA, THAT THE STATE OF
LOUISIANA HAD "INTERPOSED ITSELF IN THE FIELD OF PUBLIC EDUCATION OVER
WHICH IT HAS EXCLUSIVE CONTROL," AND MOTIONS WERE MADE FOR A STAY OF
THE INJUNCTION PENDING DIRECT APPEAL TO THIS COURT.  HELD:  THIS
CONTENTION AND OTHERS MADE IN THE MOTIONS ARE WITHOUT SUBSTANCE, AND
THE MOTIONS FOR STAY ARE DENIED. 

BUSH ET AL. V. ORLEANS PARISH SCHOOL BOARD ET AL. 

ON MOTION FOR STAY. 

PER CURIAM. 

THESE ARE MOTIONS FOR STAY OF AN INJUNCTION BY A THREE-JUDGE DISTRICT
COURT WHICH NULLIFIED A SERIES OF ENACTMENTS OF THE STATE OF
LOUISIANA.  THE SCOPE OF THESE ENACTMENTS AND THE BASIS ON WHICH THEY
WERE FOUND IN CONFLICT WITH THE CONSTITUTION OF THE UNITED STATES ARE
NOT MATTERS OF DOUBT.  THE NUB OF THE DECISION OF THE THREE-JUDGE COURT
IS THIS: 

"THE CONCLUSION IS CLEAR THAT INTERPOSITION IS NOT A CONSTITUTIONAL
DOCTRINE.  IF TAKEN SERIOUSLY, IT IS ILLEGAL DEFIANCE OF CONSTITUTIONAL
AUTHORITY."  UNITED STATES V. LOUISIANA, 188 F. SUPP. 916, 926. 

THE MAIN BASIS FOR CHALLENGING THIS RULING IS THAT THE STATE OF
LOUISIANA "HAS INTERPOSED ITSELF IN THE FIELD OF PUBLIC EDUCATION OVER
WHICH IT HAS EXCLUSIVE CONTROL."  THIS OBJECTION IS WITHOUT SUBSTANCE,
AS WE HELD, UPON FULL CONSIDERATION, IN COOPER V. AARON, 358 U.S. 1. 
THE OTHERS ARE LIKEWISE WITHOUT MERIT. 

ACCORDINGLY, THE MOTIONS FOR STAY ARE DENIED. 
..END :









DAVIS V. UNITED STATES 364 U.S. 505 


NO. 456.  DECIDED DECEMBER 12, 1960 - REPORTED BELOW:  281 F.2D 93. 


CERTIORARI GRANTED AND JUDGMENT REVERSED AS TO COUNTS I, II AND III OF
THE INDICTMENT, AND CASE REMANDED FOR NEW TRIAL ON SAID COUNTS. 

DAVIS V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE ENTIRE RECORD AND THE SUGGESTION OF THE
SOLICITOR GENERAL, THE PETITION FOR WRIT OF CERTIORARI IS GRANTED
LIMITED TO THAT PART OF THE JUDGMENT CONCERNED WITH COUNTS I, II AND
III OF THE INDICTMENT, AND THAT PART OF THE JUDGMENT IS REVERSED AND
THE CASE IS REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL ON COUNTS I,
II, AND III.  IN ALL OTHER RESPECTS THE PETITION FOR WRIT OF CERTIORARI
IS DENIED. 
..END :








KRUPA V. FARMINGTON RIVER POWER CO. 364 U.S. 506 


NO. 403, MISC.  DECIDED DECEMBER 12, 1960 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 147 CONN. 153, 157 A.2D 914. 


KRUPA ET AL. V. FARMINGTON RIVER POWER CO. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SMALL BUSINESS ADMINISTRATION V. MCCLELLAN 364 U.S. 446 


NO. 42.  ARGUED NOVEMBER 9-10, 1960 - DECIDED DECEMBER 5, 1960 - 272
F.2D 143, REVERSED. 


WHEN THE SMALL BUSINESS ADMINISTRATION CREATED BY THE SMALL BUSINESS
ACT OF 1953, WITH AUTHORITY INTER ALIA TO LEND GOVERNMENT FUNDS TO
SMALL BUSINESSES, HAS JOINED A PRIVATE BANK IN MAKING A LOAN AND THE
BORROWER BECOMES A BANKRUPT, THE ADMINISTRATION'S INTEREST IN THE
UNPAID BALANCE OF THE LOAN IS ENTITLED TO THE PRIORITY PROVIDED FOR
"DEBTS DUE TO THE UNITED STATES" UNDER R.S. SEC. 3466 AND SEC. 64 OF
THE BANKRUPTCY ACT - EVEN THOUGH THE ADMINISTRATION HAS AGREED TO SHARE
WITH THE BANK ANY MONEY COLLECTED ON THE LOAN.  PP. 447-453. 

(A)  THE SMALL BUSINESS ADMINISTRATION IS AN INTEGRAL PART OF THE
GOVERNMENTAL MECHANISM - NOT A SEPARATE LEGAL ENTITY - AND IT IS
ENTITLED TO THE PRIORITY OF THE UNITED STATES IN COLLECTING LOANS MADE
BY IT OUT OF GOVERNMENT FUNDS.  SLOAN SHIPYARDS CORP. V. UNITED STATES
FLEET CORP., 258 U.S. 549, AND RECONSTRUCTION FINANCE CORP. V. MENIHAN
CORP., 312 U.S. 81, DISTINGUISHED.  UNITED STATES V. REMUND, 330 U.S.
539, FOLLOWED.  PP. 448-450. 

(B)  SINCE THE ADMINISTRATION PARTICIPATED IN MAKING THE LOAN AND
ACQUIRED A BENEFICIAL INTEREST IN IT PRIOR TO THE PETITION IN
BANKRUPTCY, IT IS IMMATERIAL THAT FORMAL ASSIGNMENT TO THE
ADMINISTRATION OF THE NOTE EVIDENCING THE DEBT WAS NOT MADE BY THE BANK
UNTIL AFTER THE FILING OF THE PETITION.  P. 450. 

(C)  THE ADMINISTRATION DID NOT FORFEIT ITS RIGHT TO PRIORITY BY
AGREEING TO TURN OVER TO THE BANK PART OF ANY DISTRIBUTION OBTAINED
BECAUSE OF ITS PRIORITY.  PP. 451-453. 

(D)  GOVERNMENTAL PRIORITY IN BANKRUPTCY PROCEEDINGS IS NOT
INCONSISTENT WITH THE BASIC PURPOSES AND PROVISIONS OF THE SMALL
BUSINESS ACT.  P. 453. 

SMALL BUSINESS ADMINISTRATION V. MCCLELLAN, TRUSTEE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE SMALL BUSINESS ACT OF 1953 (FN1) CREATED THE SMALL BUSINESS
ADMINISTRATION TO "AID, COUNSEL, ASSIST, AND PROTECT INSOFAR AS IS
POSSIBLE THE INTERESTS OF SMALL-BUSINESS CONCERNS IN ORDER TO PRESERVE
FREE COMPETITIVE ENTERPRISE  ...  AND TO MAINTAIN AND STRENGTHEN THE
OVERALL ECONOMY OF THE NATION."  (FN2)  THE ADMINISTRATION WAS GIVEN
EXTRAORDINARILY BROAD POWERS TO ACCOMPLISH THESE IMPORTANT OBJECTIVES,
INCLUDING THAT OF LENDING MONEY TO SMALL BUSINESSES WHENEVER THEY COULD
NOT GET NECESSARY LOANS ON REASONABLE TERMS FROM PRIVATE LENDERS. 
(FN3)  WHEN A PART, BUT NOT ALL, OF A NECESSARY LOAN CAN BE OBTAINED
FROM A BANK OR OTHER PRIVATE LENDER, THE ADMINISTRATION IS EMPOWERED TO
JOIN THAT PRIVATE LENDER IN MAKING THE LOAN.  (FN4)  THE BASIC QUESTION
THIS CASE PRESENTS IS WHETHER, WHEN THE ADMINISTRATION HAS JOINED A
PRIVATE BANK IN A LOAN AND THE BORROWER BECOMES A BANKRUPT, THE
ADMINISTRATION'S INTEREST IN THE UNPAID BALANCE OF THE LOAN IS ENTITLED
TO THE PRIORITY PROVIDED FOR "DEBTS DUE TO THE UNITED STATES" IN R.S.
SEC. 3466 AND SEC. 64 OF THE BANKRUPTCY ACT, (FN5) EVEN THOUGH THE
ADMINISTRATION HAS AGREED TO SHARE ANY MONEY COLLECTED ON THE LOAN WITH
THE PRIVATE BANK. 

THAT QUESTION ARISES OUT OF A JOINT BANK-ADMINISTRATION LOAN OF
$20,000 TO A SMALL BUSINESS, $5,000 OF THE LOAN HAVING COME FROM THE
FUNDS OF THE BANK AND $15,000 FROM THE GOVERNMENT TREASURY.  NINE
MONTHS LATER, AN INVOLUNTARY PETITION IN BANKRUPTCY WAS FILED AGAINST
THE BORROWER BY OTHER CREDITORS.  THE ADMINISTRATION APPEARED IN THE
PROCEEDINGS UPON THAT PETITION, FILED A CLAIM FOR $16,355.69, THE
AMOUNT THEN DUE ON THE LOAN, INCLUDING INTEREST, AND ASSERTED PRIORITY
FOR ITS CLAIM TO THE EXTENT OF $12,266.75, ITS 75 PER CENT INTEREST IN
THE DEBT.  AFTER A HEARING, THE REFEREE IN BANKRUPTCY DENIED PRIORITY
ON THE GROUND THAT THE ADMINISTRATION IS A "LEGAL ENTITY" AND THEREFORE
NOT ENTITLED TO THE "PRIVILEGES AND IMMUNITIES OF THE UNITED STATES." 
THE DISTRICT COURT, ON REVIEW, REJECTED THE GROUND UPON WHICH THE
REFEREE HAD RELIED BUT CONCLUDED THAT SINCE THE BANKRUPT'S NOTE
EVIDENCING THE LOAN WAS NOT ASSIGNED BY THE BANK TO THE ADMINISTRATION
UNTIL AFTER THE COMMENCEMENT OF BANKRUPTCY PROCEEDINGS, THE DEBT IS NOT
ENTITLED TO PRIORITY.  (FN6)  THE COURT OF APPEALS AFFIRMED ON A THIRD
GROUND - THAT THE ADMINISTRATION, HAVING CONTRACTED TO PAY THE
PARTICIPATING PRIVATE BANK ONE-FOURTH OF ANY DISTRIBUTION RECEIVED,
COULD NOT ASSERT ITS PRIORITY AND THUS PERMIT A PRIVATE PARTY TO
BENEFIT FROM A PRIORITY WHICH, UNDER R.S. SEC. 3466 AND THE BANKRUPTCY
ACT, BELONGS TO THE GOVERNMENT ALONE.  (FN7)  WE GRANTED CERTIORARI TO
CONSIDER THE GOVERNMENT'S CONTENTION THAT THE DENIAL OF PRIORITY TO THE
SMALL BUSINESS ADMINISTRATION HANDICAPS THAT AGENCY IN THE EFFECTIVE
PERFORMANCE OF THE DUTIES IMPOSED UPON IT BY CONGRESS.  (FN8) 

FIRST.  IT IS CONTENDED THAT THE REFEREE WAS CORRECT IN HOLDING THAT
THE SMALL BUSINESS ADMINISTRATION IS A SEPARATE LEGAL ENTITY AND
THEREFORE NOT ENTITLED TO GOVERNMENTAL PRIORITY IN A BANKRUPTCY
PROCEEDING.  THE CONTENTION RESTS UPON A SUPPOSED ANALOGY BETWEEN THIS
CASE AND SLOAN SHIPYARDS CORP. V. UNITED STATES FLEET CORPORATION (FN9)
AND RECONSTRUCTION FINANCE CORP. V. MENIHAN CORP., (FN10) IN WHICH
CASES THIS COURT REFUSED TO TREAT THE CORPORATE GOVERNMENTAL AGENCIES
INVOLVED AS THE UNITED STATES.  NEITHER OF THOSE CASES, HOWEVER, IS
CONTROLLING HERE.  THE AGENCY INVOLVED IN SLOAN SHIPYARDS, THE FLEET
CORPORATION, WAS ORGANIZED UNDER THE LAWS OF THE DISTRICT OF COLUMBIA
PURSUANT TO AUTHORITY OF AN ACT OF CONGRESS WHICH "CONTEMPLATED A
CORPORATION IN WHICH PRIVATE PERSONS MIGHT BE STOCKHOLDERS."  (FN11)
THIS FACT ALONE IS ENOUGH TO DISTINGUISH THE FLEET CORPORATION FROM THE
SMALL BUSINESS ADMINISTRATION, WHICH, AS WAS CONTEMPLATED FROM THE
BEGINNING, GETS ALL OF ITS MONEY FROM THE GOVERNMENT TREASURY.  OUR
DECISION IN THE RECONSTRUCTION FINANCE CORP.  CASE IS EQUALLY
INAPPLICABLE FOR THAT CASE INVOLVED ONLY THE QUESTION OF WHETHER THE
RECONSTRUCTION FINANCE CORPORATION, HAVING BEEN ENDOWED BY CONGRESS
WITH THE CAPACITY TO SUE AND BE SUED, COULD BE ASSESSED COSTS IN
CONNECTION WITH A SUIT IT BROUGHT.  THE HOLDING THAT SUCH COSTS COULD
BE ASSESSED WOULD NOT SUPPORT A HOLDING THAT THE SMALL BUSINESS
ADMINISTRATION IS NOT THE UNITED STATES FOR THE PURPOSE OF BANKRUPTCY
PRIORITY.  (FN12)  THUS NEITHER OF THESE CASES REQUIRES US TO HOLD THAT
THE SMALL BUSINESS ADMINISTRATION, AN AGENCY CREATED TO LEND THE MONEY
OF THE UNITED STATES, IS NOT ENTITLED TO ALL THE PRIORITY THAT MUST BE
ACCORDED TO THE UNITED STATES WHEN THE TIME COMES TO COLLECT THAT
MONEY.  UNDER LIKE CIRCUMSTANCES WE REFUSED TO DENY PRIORITY FOR DEBTS
DUE TO THE FARM CREDIT ADMINISTRATION IN UNITED STATES V. REMUND. 
(FN13)  AS WAS SAID THERE OF THE FARM CREDIT ADMINISTRATION, THE SMALL
BUSINESS ADMINISTRATION IS "AN INTEGRAL PART OF THE GOVERNMENTAL
MECHANISM" (FN14) CREATED TO ACCOMPLISH WHAT CONGRESS DEEMED TO BE OF
NATIONAL IMPORTANCE.  AND IT, LIKE THE FARM CREDIT ADMINISTRATION, IS
ENTITLED TO THE PRIORITY OF THE UNITED STATES IN COLLECTING LOANS MADE
BY IT OUT OF GOVERNMENT FUNDS. 

SECOND.  RESPONDENT CONTENDS, AS THE DISTRICT COURT HELD, THAT THE
SMALL BUSINESS ADMINISTRATION'S ASSERTION OF PRIORITY IS PRECLUDED BY
OUR HOLDING IN UNITED STATES V. MARXEN (FN15) THAT PRIORITY ATTACHES
ONLY TO THOSE DEBTS OWING TO THE UNITED STATES ON THE DATE OF THE
COMMENCEMENT OF BANKRUPTCY PROCEEDINGS AND NOT TO DEBTS THAT COME INTO
EXISTENCE AFTER THAT DATE.  BUT THIS REQUIREMENT OF THE MARXEN CASE IS
FULLY MET HERE BY VIRTUE OF THE FACT THAT THE DEBT DUE THE
ADMINISTRATION ARISES OUT OF THE LOAN MADE JOINTLY BY THE BANK AND THE
UNITED STATES NINE MONTHS PRIOR TO THE PETITION IN BANKRUPTCY.  SINCE
BENEFICIAL OWNERSHIP OF THE THREE-FOURTHS OF THE DEBT FOR WHICH
PRIORITY IS ASSERTED BELONGED TO THE ADMINISTRATION FROM THE DATE OF
THE LOAN, IT IS IMMATERIAL THAT FORMAL ASSIGNMENT OF THE NOTE
EVIDENCING THE DEBT WAS NOT MADE BY THE BANK UNTIL AFTER THE FILING OF
THE PETITION. 

THIRD.  THE COURT OF APPEALS HELD, AND THE CONTENTION IS REITERATED
HERE, THAT THE ADMINISTRATION FORFEITED ANY RIGHT IT MIGHT OTHERWISE
HAVE HAD TO PRIORITY BY AGREEING TO TURN OVER TO THE BANK ONE-FOURTH OF
ANY DISTRIBUTION OBTAINED BECAUSE OF ITS PRIORITY.  BY THIS
ARRANGEMENT, IT IS URGED, THE ADMINISTRATION IS ATTEMPTING "TO GIVE
PRIORITY TO A CLAIM WHICH THE UNITED STATES IS COLLECTING FOR THE
BENEFIT OF A PRIVATE PARTY," CONTRARY TO THE PRINCIPLES ANNOUNCED BY
THIS COURT IN NATHANSON V. LABOR BOARD.  (FN16)  BUT THE NATHANSON CASE
INVOLVED A SIGNIFICANTLY DIFFERENT SITUATION.  THERE THE NATIONAL LABOR
RELATIONS BOARD SOUGHT TO OBTAIN GOVERNMENTAL PRIORITY FOR BACK-PAY
CLAIMS BELONGING TO EMPLOYEES BASED UPON THEIR LOSS OF PAY AS A RESULT
OF ALLEGEDLY DISCRIMINATORY DISCHARGES BY THE BANKRUPT.  THIS COURT'S
DENIAL OF PRIORITY IN THAT CASE, INVOLVING CLAIMS IN WHICH THE UNITED
STATES HAD NO FINANCIAL INTEREST, WOULD NOT JUSTIFY A DENIAL HERE WHERE
THE MONEY WAS LOANED BY, AND THE DEBT SOUGHT TO BE COLLECTED IS DUE TO,
THE UNITED STATES.  THE FACT THAT THE ADMINISTRATION HAS CONTRACTED TO
PAY THE PARTICIPATING PRIVATE BANK ONE-FOURTH OF ANY MONEY IT LATER
COLLECTS ON ITS LOAN DOES NOT MEAN THE GOVERNMENT MUST LOSE ITS
PRIORITY.  RESPONDENT'S ARGUMENT TO THE CONTRARY SEEMS TO REST UPON THE
ASSUMPTION THAT THE GOVERNMENT IS DEPRIVED OF ITS PRIORITY BY MAKING A
CONTRACT TO PAY A PART OF ITS FUNDS TO ANOTHER CREDITOR OF THE BANKRUPT
WHO HAS NO PRIORITY.  THIS ARGUMENT FINDS NO SUPPORT WHATEVER IN SEC.
3466, IN SEC. 64 OF THE BANKRUPTCY ACT, OR IN THE SMALL BUSINESS ACT. 
ENTITLED TO PRIORITY "WHENEVER ANY PERSON INDEBTED TO THE UNITED STATES
IS INSOLVENT," AND SEC. 64 RECOGNIZES THAT PRIORITY IN BANKRUPTCY
PROCEEDINGS.  THE PURPOSE OF THESE SECTIONS IS SIMPLY TO PROTECT THE
INTEREST OF THE GOVERNMENT IN COLLECTING MONEY DUE TO IT.  (FN17)  ONCE
THAT MONEY IS COLLECTED AND PLACED IN THE GOVERNMENT TREASURY, THE END
SOUGHT TO BE ACHIEVED BY SEC. 3466 AND SEC. 64 OF THE BANKRUPTCY ACT IS
COMPLETELY SATISFIED.  AT THAT POINT, THERE IS NO DIFFERENCE BETWEEN
THE MONEY SO RECEIVED AND MONEY RECEIVED FROM ANY OTHER SOURCE AND,
LIKE OTHER MONEY, IT MAY BE DISBURSED IN ANY WAY THE GOVERNMENT SEES
FIT, INCLUDING THE SATISFACTION OF OBLIGATIONS ALREADY INCURRED, SO
LONG AS THE PURPOSE IS LAWFUL.  THE SMALL BUSINESS ADMINISTRATION IS
AUTHORIZED TO ENTER INTO CONTRACTS CALCULATED TO INDUCE PRIVATE BANKS
TO MAKE LOANS TO SMALL BUSINESSES.  (FN18) THE CONTRACT INVOLVED IN
THIS CASE, BY PROVIDING ADDITIONAL SECURITY TO THE PRIVATE BANK AT THE
GOVERNMENT'S EXPENSE, IS WELL ADAPTED TO THAT END.  INDEED, IN MANY
CASES SUCH A CONTRACT MAY BE THE ONLY WAY THE ADMINISTRATION COULD
INDUCE PRIVATE BANK PARTICIPATION IN A NECESSARY LOAN.  IN THOSE CASES,
ACCEPTANCE OF RESPONDENT'S ARGUMENT WOULD MAKE IT MORE DIFFICULT FOR
THE ADMINISTRATION TO PERFORM ITS STATUTORY DUTIES.  CLEARLY CONGRESS
DID NOT INTEND, BY THE VERY ACT OF IMPOSING DUTIES UPON THE
ADMINISTRATION, TO TAKE AWAY A PRIVILEGE NECESSARY TO THE EFFECTIVE
PERFORMANCE OF THOSE DUTIES. 

RESPONDENT'S ARGUMENT FROM THE POLICY OF EQUALITY OF DISTRIBUTION FOR
SIMILAR CREDITORS EXPRESSED IN THE BANKRUPTCY ACT (FN19) IS NO MORE
CONVINCING.  IT IS TRUE THAT THE ALLOWANCE OF THE PRIORITY ASSERTED
HERE WILL PLACE THE BANK, A PRIVATE UNSECURED CREDITOR, IN A BETTER
POSITION THAN OTHER PRIVATE UNSECURED CREDITORS.  BUT THIS POSITION IS
A RESULT, NOT OF ANY INEQUALITY OF DISTRIBUTION ON THE PART OF THE
BANKRUPTCY COURT, BUT OF THE BANK'S VALID CONTRACT WITH THE SMALL
BUSINESS ADMINISTRATION. 

FOURTH.  RESPONDENT'S LAST CONTENTION, URGED THROUGHOUT THESE
PROCEEDINGS, IS THAT GOVERNMENTAL PRIORITY IS INCONSISTENT WITH THE
BASIC PURPOSES AND PROVISIONS OF THE SMALL BUSINESS ACT.  THE
CONTENTION RESTS UPON THE FACT THAT HAVING A CREDITOR WITH GOVERNMENTAL
PRIORITY TENDS TO MAKE IT MORE DIFFICULT FOR A SMALL BUSINESSMAN TO
BORROW MONEY FROM OTHER PERSONS, AND, IN THIS RESPECT, HANDICAPS RATHER
THAN AIDS BORROWERS, THUS CONFLICTING WITH THE ACT'S BASIC POLICY.  IN
UNITED STATES V. EMORY, WE REJECTED THIS SAME ARGUMENT, WITH REFERENCE
TO PRIORITY FOR FEDERAL HOUSING ADMINISTRATION DEBTS, STATING THAT
"ONLY THE PLAINEST INCONSISTENCY WOULD WARRANT OUR FINDING AN IMPLIED
EXCEPTION TO  ...  SO CLEAR A COMMAND AS THAT OF SEC. 3466."  (FN20)
THE SAME CONCLUSION MUST BE REACHED HERE. 

IT WAS ERROR FOR THE COURTS BELOW TO REFUSE THE GOVERNMENT'S CLAIM
FOR PRIORITY.  REVERSED AND REMANDED. 

FN1  67 STAT. 232, AS AMENDED, 15 U.S.C. SECS. 631-651. 

FN2  67 STAT. 232. 

FN3  67 STAT. 235-236. 

FN4  IBID. 

FN5  R.S. SEC. 3466, 31 U.S.C. SEC. 191, ESTABLISHES A GENERAL
PRIORITY FOR DEBTS DUE TO THE UNITED STATES.  SECTION 64 OF THE
BANKRUPTCY ACT, AS AMENDED, 11 U.S.C. SEC. 104, PROVIDES THAT IN
BANKRUPTCY CASES THE PRIORITY SO ESTABLISHED SHOULD COME FIFTH IN THE
ORDER OF PREFERRED CREDITORS. 

FN6  168 F. SUPP. 483. 

FN7  272 F.2D 143. 

FN8  362 U.S. 947. 

FN9  258 U.S. 549. 

FN10  312 U.S. 81. 

FN11  258 U.S., AT 565. 

FN12  THE PROPER SCOPE OF THAT HOLDING WAS RECOGNIZED BY CONGRESS
ITSELF WHEN, SEVERAL YEARS LATER, THE RECONSTRUCTION FINANCE
CORPORATION ACT WAS AMENDED EXPRESSLY TO DENY THE CORPORATION A RIGHT
OF PRIORITY EXCEPT WITH RESPECT TO DEBTS ARISING OUT OF ITS WARTIME
ACTIVITIES.  ACT OF MAY 25, 1948, 62 STAT. 261.  THAT THE ASSUMPTION
UNDERLYING THIS AMENDMENT WAS THAT THE CORPORATION WOULD OTHERWISE HAVE
HAD PRIORITY FOR ALL DEBTS DUE TO IT IS CLEAR FROM THE DISCUSSION OF
THE PURPOSE OF THE AMENDMENT IN THE SENATE.  SENATOR BUCK STATED THAT
PURPOSE AS FOLLOWS:  "THE COMMITTEE BELIEVES THAT RFC SHOULD NOT HAVE
SUCH PRIORITY WITH RESPECT TO DEBTS ARISING FROM ITS NORMAL LENDING
ACTIVITIES.  A PROVISION HAS BEEN INCLUDED IN THIS SECTION WHICH WILL
ELIMINATE THAT PRIORITY EXCEPT WITH RESPECT TO DEBTS ARISING UNDER THE
SPECIFIC WAR POWERS WHICH ARE DESIGNATED THEREIN.  CONG. REC., 80TH
CONG., 2D SESS., VOL. 94, PART 3, P. 4108.  SEE ALSO IN RE TEMPLE, 174
F.2D 145. 

FN13 330 U.S. 539. 

FN14  ID., AT 542. 

FN15  307 U.S. 200. 

FN16  344 U.S. 25, AT 28. 

FN17  FOR A DISCUSSION OF THE HISTORY AND PURPOSES OF R.S. SEC. 3466,
SEE UNITED STATES V. STATE BANK, 6 PET. 29, 35-37.  COMPARE NATHANSON
V. LABOR BOARD, SUPRA, AT 27-28. 

FN18  67 STAT. 236. 

FN19  11 U.S.C. SEC. 1 ET SEQ. 

FN20  314 U.S. 423, 433.  SEE ALSO UNITED STATES V. REMUND, SUPRA, AT
544-545; ILLINOIS EX REL. GORDON V. UNITED STATES, 328 U.S. 8, 11-12. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :






















BOYNTON V. VIRGINIA 364 U.S. 454 


NO. 7.  ARGUED OCTOBER 12, 1960 - DECIDED DECEMBER 5, 1960 - REVERSED. 


FOR REFUSING TO LEAVE THE SECTION RESERVED FOR WHITE PEOPLE IN A
RESTAURANT IN A BUS TERMINAL, PETITIONER, A NEGRO INTERSTATE BUS
PASSENGER, WAS CONVICTED IN VIRGINIA COURTS OF VIOLATING A STATE
STATUTE MAKING IT A MISDEMEANOR FOR ANY PERSON "WITHOUT AUTHORITY OF
LAW" TO REMAIN UPON THE PREMISES OF ANOTHER AFTER HAVING BEEN FORBIDDEN
TO DO SO.  ON APPEAL, HE CONTENDED THAT HIS CONVICTION VIOLATED THE
INTERSTATE COMMERCE ACT AND THE EQUAL PROTECTION, DUE PROCESS AND
COMMERCE CLAUSES OF THE FEDERAL CONSTITUTION; BUT HIS CONVICTION WAS
SUSTAINED BY THE STATE SUPREME COURT.  ON PETITION FOR CERTIORARI TO
THIS COURT, HE RAISED ONLY THE CONSTITUTIONAL QUESTIONS.  HELD: 

1.  NOTWITHSTANDING THE FACT THAT THE PETITION FOR CERTIORARI
PRESENTED ONLY THE CONSTITUTIONAL QUESTIONS, THIS COURT WILL CONSIDER
THE STATUTORY ISSUE, WHICH INVOLVES ESSENTIALLY THE SAME PROBLEM -
RACIAL DISCRIMINATION IN INTERSTATE COMMERCE.  P. 457. 

2.  UNDER SEC. 216(D) OF THE INTERSTATE COMMERCE ACT, WHICH FORBIDS
ANY INTERSTATE COMMON CARRIER BY MOTOR VEHICLE TO SUBJECT ANY PERSON TO
UNJUST DISCRIMINATION, PETITIONER HAD A FEDERAL RIGHT TO REMAIN IN THE
WHITE PORTION OF THE RESTAURANT, HE WAS THERE "UNDER AUTHORITY OF LAW,"
AND IT WAS ERROR TO AFFIRM HIS CONVICTION.  PP. 457-463. 

(A)  WHEN A BUS CARRIER HAS VOLUNTEERED TO MAKE TERMINAL AND
RESTAURANT FACILITIES AND SERVICES AVAILABLE TO ITS INTERSTATE
PASSENGERS AS A REGULAR PART OF THEIR TRANSPORTATION, AND THE TERMINAL
AND RESTAURANT HAVE ACQUIESCED AND COOPERATED IN THIS UNDERTAKING, THE
TERMINAL AND RESTAURANT MUST PERFORM THESE SERVICES WITHOUT
DISCRIMINATIONS PROHIBITED BY THE ACT.  PP. 457-461. 

(B)  ALTHOUGH THE COURTS BELOW MADE NO FINDINGS OF FACT, THE EVIDENCE
IN THIS CASE SHOWS SUCH A SITUATION HERE.  PP. 461-463. 

BOYNTON V. VIRGINIA. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE BASIC QUESTION PRESENTED IN THIS CASE IS WHETHER AN INTERSTATE
BUS PASSENGER IS DENIED A FEDERAL STATUTORY OR CONSTITUTIONAL RIGHT
WHEN A RESTAURANT IN A BUS TERMINAL USED BY THE CARRIER ALONG ITS ROUTE
DISCRIMINATES IN SERVING FOOD TO THE PASSENGER SOLELY BECAUSE OF HIS
COLOR. 

PETITIONER, A NEGRO LAW STUDENT, BOUGHT A TRAILWAYS BUS TICKET FROM
WASHINGTON, D.C., TO MONTGOMERY, ALABAMA.  HE BOARDED A BUS AT 8 P.M.
WHICH ARRIVED AT RICHMOND, VIRGINIA, ABOUT 10:40 P.M.  WHEN THE BUS
PULLED UP AT THE RICHMOND "TRAILWAYS BUS TERMINAL" THE BUS DRIVER
ANNOUNCED A FORTY-MINUTE STOPOVER THERE.  PETITIONER GOT OFF THE BUS
AND WENT INTO THE BUS TERMINAL TO GET SOMETHING TO EAT.  IN THE STATION
HE FOUND A RESTAURANT IN WHICH ONE PART WAS USED TO SERVE WHITE PEOPLE
AND ONE TO SERVE NEGROES.  DISREGARDING THIS DIVISION, PETITIONER SAT
DOWN ON A STOOL IN THE WHITE SECTION.  A WAITRESS ASKED HIM TO MOVE
OVER TO THE OTHER SECTION WHERE THERE WERE "FACILITIES" TO SERVE
COLORED PEOPLE.  PETITIONER TOLD HER HE WAS AN INTERSTATE BUS
PASSENGER, REFUSED TO MOVE AND ORDERED A SANDWICH AND TEA.  THE
WAITRESS THEN BROUGHT THE ASSISTANT MANAGER, WHO "INSTRUCTED"
PETITIONER TO "LEAVE THE WHITE PORTION OF THE RESTAURANT AND ADVISED
HIM HE COULD BE SERVED IN THE COLORED PORTION."  UPON PETITIONER'S
REFUSAL TO LEAVE AN OFFICER WAS CALLED AND PETITIONER WAS ARRESTED AND
LATER TRIED, CONVICTED AND FINED TEN DOLLARS IN THE POLICE JUSTICE'S
COURT OF RICHMOND ON A CHARGE THAT HE "UNLAWFULLY DID REMAIN ON THE
PREMISES OF THE BUS TERMINAL RESTAURANT OF RICHMOND, INC. AFTER HAVING
BEEN FORBIDDEN TO DO SO" BY THE ASSISTANT MANAGER.  THE CHARGE WAS
BASED ON SEC. 18-225 OF THE CODE OF VIRGINIA OF 1950, AS AMENDED
(1958), WHICH PROVIDES IN PART: 

"IF ANY PERSON SHALL WITHOUT AUTHORITY OF LAW GO UPON OR REMAIN UPON
THE LANDS OR PREMISES OF ANOTHER, AFTER HAVING BEEN FORBIDDEN TO DO SO
BY THE OWNER, LESSEE, CUSTODIAN OR OTHER PERSON LAWFULLY IN CHARGE OF
SUCH LAND,  ...  HE SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND UPON
CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT MORE THAN ONE
HUNDRED DOLLARS OR BY CONFINEMENT IN JAIL NOT EXCEEDING THIRTY DAYS, OR
BY BOTH SUCH FINE AND IMPRISONMENT." 

PETITIONER APPEALED HIS CONVICTION TO THE HUSTINGS COURT OF RICHMOND,
WHERE, AS IN THE POLICE COURT, HE ADMITTED THAT HE HAD REMAINED IN THE
WHITE PORTION OF THE TERMINAL RESTAURANT ALTHOUGH ORDERED NOT TO DO SO.
HIS DEFENSE IN BOTH COURTS WAS THAT HE HAD A FEDERAL RIGHT AS AN
INTERSTATE PASSENGER OF TRAILWAYS TO BE SERVED WITHOUT DISCRIMINATION
BY THIS RESTAURANT USED BY THE BUS CARRIER FOR THE ACCOMMODATION OF ITS
INTERSTATE PASSENGERS.  ON THIS BASIS PETITIONER CLAIMED HE WAS ON THE
RESTAURANT PREMISES LAWFULLY, NOT "UNLAWFULLY" AS CHARGED, AND THAT HE
REMAINED THERE WITH, NOT "WITHOUT AUTHORITY OF LAW."  HIS FEDERAL CLAIM
TO THIS EFFECT WAS SPELLED OUT IN A MOTION TO DISMISS THE WARRANT IN
HUSTINGS COURT, WHICH WAS OVERRULED BOTH BEFORE AND AFTER THE EVIDENCE
WAS HEARD.  POINTING OUT THAT THE RESTAURANT WAS AN INTEGRAL PART OF
THE BUS SERVICE FOR INTERSTATE PASSENGERS SUCH AS PETITIONER, AND
ASSERTING THAT REFUSAL TO SERVE HIM WAS A DISCRIMINATION BASED ON
COLOR, THE MOTION TO DISMISS CHARGED THAT APPLICATION OF THE VIRGINIA
LAW TO PETITIONER VIOLATED THE INTERSTATE COMMERCE ACT AND THE EQUAL
PROTECTION, DUE PROCESS AND COMMERCE CLAUSES OF THE FEDERAL
CONSTITUTION.  ON APPEAL THE VIRGINIA SUPREME COURT HELD THAT THE
CONVICTION WAS "PLAINLY RIGHT" AND AFFIRMED WITHOUT OPINION, THEREBY
REJECTING PETITIONER'S ASSIGNMENTS OF ERROR BASED ON THE SAME GROUNDS
OF DISCRIMINATION SET OUT IN HIS MOTION TO DISMISS IN HUSTINGS COURT
BUT NOT SPECIFICALLY CHARGING THAT THE DISCRIMINATION VIOLATED THE
INTERSTATE COMMERCE ACT.  WE THINK, HOWEVER, THAT THE CLAIMS OF
DISCRIMINATION PREVIOUSLY MADE UNDER THE ACT ARE SUFFICIENTLY CLOSELY
RELATED TO THE ASSIGNMENTS THAT WERE MADE TO BE CONSIDERED WITHIN THE
SCOPE OF THE ISSUES PRESENTED TO THE STATE SUPREME COURT.  WE GRANTED
CERTIORARI BECAUSE OF THE SERIOUS FEDERAL QUESTIONS RAISED CONCERNING
DISCRIMINATION BASED ON COLOR.  361 U.S. 958. 

THE PETITION FOR CERTIORARI WE GRANTED PRESENTED ONLY TWO QUESTIONS:
FIRST, WHETHER THE CONVICTION OF PETITIONER IS INVALID AS A BURDEN ON
COMMERCE IN VIOLATION OF ART. I, SEC. 8, CL. 3 OF THE CONSTITUTION; AND
SECOND, WHETHER THE CONVICTION VIOLATES THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.  ORDINARILY WE LIMIT
OUR REVIEW TO THE QUESTIONS PRESENTED IN AN APPLICATION FOR
CERTIORARI.  WE THINK THERE ARE PERSUASIVE REASONS, HOWEVER, WHY THIS
CASE SHOULD BE DECIDED, IF IT CAN, AND THE INTERSTATE COMMERCE ACT
CONTENTION RAISED IN THE VIRGINIA COURTS.  DISCRIMINATION BECAUSE OF
COLOR IS THE CORE OF THE TWO BROAD CONSTITUTIONAL QUESTIONS PRESENTED
TO US BY PETITIONER, JUST AS IT IS THE CORE OF THE INTERSTATE COMMERCE
ACT QUESTION PRESENTED TO THE VIRGINIA COURTS.  UNDER THESE
CIRCUMSTANCES WE THINK IT APPROPRIATE NOT TO REACH THE CONSTITUTIONAL
QUESTIONS BUT TO PROCEED AT ONCE TO THE STATUTORY ISSUE. 

THE INTERSTATE COMMERCE ACT, AS WE HAVE SAID, USES LANGUAGE OF THE
BROADEST TYPE TO BAR DISCRIMINATIONS OF ALL KINDS.  UNITED STATES V.
BALTIMORE & OHIO R. CO., 333 U.S. 169, 175, AND CASES CITED.  WE HAVE
HELD THAT THE ACT FORBIDS RAILROAD DINING CARS TO DISCRIMINATE IN
SERVICE TO PASSENGERS ON ACCOUNT OF THEIR COLOR.  HENDERSON V. UNITED
STATES, 339 U.S. 816; SEE ALSO MITCHELL V. UNITED STATES, 313 U.S. 80,
97. 

SEC. 316(D), WHICH APPLIES TO MOTOR CARRIERS, PROVIDES IN PART: 

"IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY MOTOR VEHICLE ENGAGED
IN INTERSTATE OR FOREIGN COMMERCE TO MAKE, GIVE, OR CAUSE ANY UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON  ...  IN
ANY RESPECT WHATSOEVER; OR TO SUBJECT ANY PARTICULAR PERSON  ...  TO
ANY UNJUST DISCRIMINATION OR ANY UNJUST OR UNREASONABLE PREJUDICE OR
DISADVANTAGE IN ANY RESPECT WHATSOEVER ...  ." 

SO FAR AS RELEVANT TO OUR PROBLEM, THE PROVISIONS OF SEC. 216(D)
QUOTED ARE THE SAME AS THOSE IN SEC. 3(1) OF THE ACT, 49 U.S.C. SEC.
3(1), EXCEPT THAT THE LATTER REFERS TO RAILROADS AS DEFINED IN PART I
OF THE ACT INSTEAD OF MOTOR CARRIERS AS DEFINED IN PART II.  SECTION
3(1) WAS THE BASIS FOR THIS COURT'S HOLDING IN HENDERSON V. UNITED
STATES, SUPRA, THAT IT WAS AN "UNDUE OR UNREASONABLE PREJUDICE" UNDER
THAT SECTION FOR A RAILROAD TO DIVIDE ITS DINING CAR BY CURTAINS,
PARTITIONS AND SIGNS IN ORDER TO SEPARATE PASSENGERS ACCORDING TO
RACE.  THE COURT SAID THAT UNDER SEC. 3(1) "WHERE A DINING CAR IS
AVAILABLE TO PASSENGERS HOLDING TICKETS ENTITLING THEM TO USE IT, EACH
SUCH PASSENGER IS EQUALLY ENTITLED TO ITS FACILITIES IN ACCORDANCE WITH
REASONABLE REGULATIONS."  ID., 339 U.S., AT 824.  THE HENDERSON CASE
LARGELY RESTED ON MITCHELL V. UNITED STATES, SUPRA, WHICH POINTED OUT
THAT WHILE THE RAILROADS MIGHT NOT BE REQUIRED BY LAW TO FURNISH DINING
CAR FACILITIES, YET IF THEY DID, SUBSTANTIAL EQUALITY OF TREATMENT OF
PERSONS TRAVELING UNDER LIKE CONDITIONS COULD NOT BE REFUSED
CONSISTENTLY WITH SEC. 3(1).  IT IS ALSO OF RELEVANCE THAT BOTH CASES
UPSET INTERSTATE COMMERCE COMMISSION HOLDINGS, THE COURT STATING IN
MITCHELL THAT SINCE THE "DISCRIMINATION SHOWN WAS PALPABLY UNJUST AND
FORBIDDEN BY THE ACT" NO ROOM WAS LEFT FOR ADMINISTRATIVE OR EXPERT
JUDGMENT WITH REFERENCE TO PRACTICAL DIFFICULTIES.  ID., 313 U.S., AT
97. 

IT FOLLOWS FROM THE MITCHELL AND HENDERSON CASES AS A MATTER OF
COURSE THAT SHOULD BUSES IN TRANSIT DECIDE TO SUPPLY DINING SERVICE,
DISCRIMINATION OF THE KIND SHOWN HERE WOULD VIOLATE SEC. 216(D).  CF.
WILLIAMS V. CAROLINA COACH CO., 111 F. SUPP. 329, AFF'D, 207 F.2D 408,
AND KEYS V. CAROLINA COACH CO., 64 M.C.C. 769.  ALTHOUGH THIS COURT HAS
NOT DECIDED WHETHER THE SAME RESULT WOULD FOLLOW FROM A SIMILAR
DISCRIMINATION IN SERVICE BY A RESTAURANT IN A RAILROAD OR BUS
TERMINAL, WE HAVE NO DOUBT THAT THE REASONING UNDERLYING THE MITCHELL
AND HENDERSON CASES WOULD COMPEL THE SAME DECISION AS TO THE
UNLAWFULNESS OF DISCRIMINATION IN TRANSPORTATION SERVICES AGAINST
INTERSTATE PASSENGERS IN TERMINALS AND TERMINAL RESTAURANTS OWNED OR
OPERATED OR CONTROLLED BY INTERSTATE CARRIERS.  THIS IS TRUE AS TO
RAILROAD TERMINALS BECAUSE THEY ARE EXPRESSLY MADE CARRIERS BY SEC.
1(3)(A) OF THE ACT, (FN1) 49 U.S.C. SEC.  1(3)(A), AND AS TO BUS
TERMINALS BECAUSE SEC. 203(A)(19) OF THE ACT, 49 U.S.C. SEC.
303(A)(19), SPECIFICALLY INCLUDES INTERSTATE TRANSPORTATION FACILITIES
AND PROPERTY OPERATED OR CONTROLLED BY A MOTOR CARRIER WITHIN THE
DEFINITION OF THE "SERVICES" AND "TRANSPORTATION" TO WHICH THE MOTOR
CARRIER PROVISIONS OF THE ACT APPLY.  (FN2) 

RESPONDENT CORRECTLY POINTS OUT, HOWEVER, THAT, WHATEVER MAY BE THE
FACTS, THE EVIDENCE IN THIS RECORD DOES NOT SHOW THAT THE BUS COMPANY
OWNS OR ACTIVELY OPERATES OR DIRECTLY CONTROLS THE BUS TERMINAL OR THE
RESTAURANT IN IT.  BUT THE FACT THAT SEC. 203(A)(19) SAYS THAT THE
PROTECTIONS OF THE MOTOR CARRIER PROVISIONS OF THE ACT EXTEND TO
"INCLUDE" FACILITIES SO OPERATED OR CONTROLLED BY NO MEANS SHOULD BE
INTERPRETED TO EXEMPT MOTOR CARRIERS FROM THEIR STATUTORY DUTY UNDER
SEC. 216(D) NOT TO DISCRIMINATE SHOULD THEY CHOOSE TO PROVIDE THEIR
INTERSTATE PASSENGERS WITH SERVICES THAT ARE AN INTEGRAL PART OF
TRANSPORTATION THROUGH THE USE OF FACILITIES THEY NEITHER OWN, CONTROL
NOR OPERATE.  THE PROTECTIONS AFFORDED BY THE ACT AGAINST
DISCRIMINATORY TRANSPORTATION SERVICES ARE NOT SO NARROWLY LIMITED.  WE
HAVE HELD THAT A RAILROAD CANNOT ESCAPE ITS STATUTORY DUTY TO TREAT ITS
SHIPPERS ALIKE EITHER BY USE OF FACILITIES IT DOES NOT OWN OR BY
CONTRACTUAL ARRANGEMENT WITH THE OWNER OF THOSE FACILITIES.  UNITED
STATES V. BALTIMORE & OHIO R. CO., SUPRA.  AND SO HERE, WITHOUT REGARD
TO CONTRACTS, IF THE BUS CARRIER HAS VOLUNTEERED TO MAKE TERMINAL AND
RESTAURANT FACILITIES AND SERVICES AVAILABLE TO ITS INTERSTATE
PASSENGERS AS A REGULAR PART OF THEIR TRANSPORTATION, AND THE TERMINAL
AND RESTAURANT HAVE ACQUIESCED AND COOPERATED IN THIS UNDERTAKING, THE
TERMINAL AND RESTAURANT MUST PERFORM THESE SERVICES WITHOUT
DISCRIMINATIONS PROHIBITED BY THE ACT.  IN THE PERFORMANCE OF THESE
SERVICES UNDER SUCH CONDITIONS THE TERMINAL AND RESTAURANT STAND IN THE
PLACE OF THE BUS COMPANY IN THE PERFORMANCE OF ITS TRANSPORTATION
OBLIGATIONS.  CF.  DERRINGTON V. PLUMMER, 240 F.2D 922, 925-926, CERT.
DENIED, 353 U.S. 924.  ALTHOUGH THE COURTS BELOW MADE NO FINDINGS OF
FACT, WE THINK THE EVIDENCE IN THIS CASE SHOWS SUCH A RELATIONSHIP AND
SITUATION HERE. 

THE MANAGER OF THE RESTAURANT TESTIFIED THAT IT WAS NOT AFFILIATED IN
ANY WAY WITH THE TRAILWAYS BUS COMPANY AND THAT THE BUS COMPANY HAD NO
CONTROL OVER THE OPERATION OF THE RESTAURANT, BUT THAT WHILE THE
RESTAURANT HAD "QUITE A BIT OF BUSINESS" FROM LOCAL PEOPLE, IT WAS
PRIMARILY OR PARTLY FOR THE SERVICE OF THE PASSENGERS ON THE TRAILWAYS
BUS.  THIS LAST STATEMENT WAS PERHAPS MUCH OF AN UNDERSTATEMENT, AS
SHOWN BY THE LEASE AGREEMENT EXECUTED IN WRITING AND SIGNED BOTH BY THE
"TRAILWAYS BUS TERMINAL, INC.," AS LESSOR, AND THE "BUS TERMINAL
RESTAURANT OF RICHMOND, INC.," AS LESSEE.  THE FIRST PART OF THE
DOCUMENT SHOWED THAT TRAILWAYS TERMINAL WAS THEN CONSTRUCTING A "BUS
STATION" WITH BUILT-IN FACILITIES "FOR THE OPERATION OF A RESTAURANT,
SODA FOUNTAIN, AND NEWS STAND."  TERMINAL COVENANTED TO LEASE THIS
SPACE TO RESTAURANT FOR ITS USE; TO GRANT RESTAURANT THE EXCLUSIVE
RIGHT TO SELL FOODS AND OTHER THINGS USUALLY SOLD IN RESTAURANTS,
NEWSSSTANDS, SODA FOUNTAINS AND LUNCH COUNTERS; TO KEEP THE TERMINAL
BUILDING IN GOOD REPAIR AND TO FURNISH CERTAIN UTILITIES.  RESTAURANT
ON ITS PART AGREED TO USE ITS SPACE FOR THE SALE OF COMMODITIES AGREED
ON AT PRICES THAT ARE "JUST AND REASONABLE"; TO SELL NO COMMODITIES NOT
USUALLY SOLD OR INSTALLED IN A BUS TERMINAL CONCESSION WITHOUT
TERMINAL'S PERMISSION; TO DISCONTINUE THE SALE OF ANY COMMODITY
OBJECTIONABLE TO TERMINAL; TO BUY, MAINTAIN, AND REPLACE EQUIPMENT
SUBJECT TO TERMINAL'S APPROVAL IN WRITING AS TO ITS QUALITY; TO MAKE
ALTERATIONS AND ADDITIONS ONLY AFTER TERMINAL'S WRITTEN CONSENT AND
APPROVAL; TO MAKE NO "SALES ON BUSES OPERATING IN AND OUT SAID BUS
STATION" BUT ONLY "THROUGH THE WINDOWS OF SAID BUSES"; TO KEEP ITS
EMPLOYEES NEAT AND CLEAN; TO PERFORM NO TERMINAL SERVICE OTHER THAN
THAT PERTAINING TO THE OPERATION OF ITS RESTAURANT AS AGREED ON; AND
THAT NEITHER RESTAURANT NOR ITS EMPLOYEES WERE TO "SELL TRANSPORTATION
OF ANY KIND OR GIVE INFORMATION PERTAINING TO SCHEDULES, RATES OR
TRANSPORTATION MATTERS, BUT SHALL REFER ALL SUCH INQUIRIES TO THE
PROPER AGENTS OF" TERMINAL.  IN SHORT, AS TERMINAL AND RESTAURANT
AGREED, "THE OPERATION OF THE RESTAURANT AND THE SAID STANDS SHALL BE
IN KEEPING WITH THE CHARACTER OF SERVICE MAINTAINED IN AN UP-TO-DATE,
MODERN BUS TERMINAL." 

ALL OF THESE THINGS SHOW THAT THIS TERMINAL BUILDING, WITH ITS
GROUNDS, CONSTITUTED ONE PROJECT FOR A SINGLE PURPOSE, AND THAT WAS TO
SERVE PASSENGERS OF ONE OR MORE BUS COMPANIES - CERTAINLY TRAILWAYS'
PASSENGERS.  THE RESTAURANT AREA WAS SPECIFICALLY DESIGNED AND BUILT
INTO THE STRUCTURE FROM THE BEGINNING TO FILL THE NEEDS OF BUS
PASSENGERS IN THIS "UP-TO-DATE, MODERN BUS TERMINAL."  WHOEVER MAY HAVE
HAD TECHNICAL TITLE OR IMMEDIATE CONTROL OF THE DETAILS OF THE VARIOUS
ACTIVITIES IN THE TERMINAL, SUCH AS WAITING-ROOM SEATING, FURNISHING OF
SCHEDULE INFORMATION, TICKET SALES, AND RESTAURANT SERVICE, THEY WERE
ALL GEARED TO THE SERVICE OF BUS COMPANIES AND THEIR PASSENGERS, EVEN
THOUGH LOCAL PEOPLE WHO MIGHT HAPPEN TO COME INTO THE TERMINAL OR ITS
RESTAURANT MIGHT ALSO BE ACCOMMODATED.  THUS WE HAVE A WELL-COORDINATED
AND SMOOTHLY FUNCTIONING PLAN FOR CONTINUOUS COOPERATIVE TRANSPORTATION
SERVICES BETWEEN THE TERMINAL, THE RESTAURANT AND BUSES LIKE TRAILWAYS
THAT MADE STOPOVERS THERE.  ALL OF THIS EVIDENCE PLUS TRAILWAYS' USE ON
THIS OCCASION SHOWS THAT TRAILWAYS WAS NOT UTILIZING THE TERMINAL AND
RESTAURANT SERVICES MERELY ON A SPORADIC OR OCCASIONAL BASIS.  THIS BUS
TERMINAL PLAINLY WAS JUST AS ESSENTIAL AND NECESSARY, AND AS AVAILABLE
FOR THAT MATTER, TO PASSENGERS AND CARRIERS LIKE TRAILWAYS THAT USED
IT, AS THOUGH SUCH CARRIERS HAD LEGAL TITLE AND COMPLETE CONTROL OVER
ALL OF ITS ACTIVITIES.  (FN3)  INTERSTATE PASSENGERS HAVE TO EAT, AND
THE VERY TERMS OF THE LEASE OF THE BUILT-IN RESTAURANT SPACE IN THIS
TERMINAL CONSTITUTE A RECOGNITION OF THE ESSENTIAL NEED OF INTERSTATE
PASSENGERS TO BE ABLE TO GET FOOD CONVENIENTLY ON THEIR JOURNEY AND AN
UNDERTAKING BY THE RESTAURANT TO FULFILL THAT NEED.  SUCH PASSENGERS IN
TRANSIT ON A PAID INTERSTATE TRAILWAYS JOURNEY HAD A RIGHT TO EXPECT
THAT THIS ESSENTIAL (FN4) TRANSPORTATION FOOD SERVICE VOLUNTARILY
PROVIDED FOR THEM UNDER SUCH CIRCUMSTANCES WOULD BE RENDERED WITHOUT
DISCRIMINATION PROHIBITED BY THE INTERSTATE COMMERCE ACT.  UNDER THE
CIRCUMSTANCES OF THIS CASE, THEREFORE, PETITIONER HAD A FEDERAL RIGHT
TO REMAIN IN THE WHITE PORTION OF THE RESTAURANT.  HE WAS THERE UNDER
"AUTHORITY OF LAW" - THE INTERSTATE COMMERCE ACT - AND IT WAS ERROR FOR
THE SUPREME COURT OF VIRGINIA TO AFFIRM HIS CONVICTION. 

BECAUSE OF SOME OF THE ARGUMENTS MADE HERE IT IS NECESSARY TO SAY A
WORD ABOUT WHAT WE ARE NOT DECIDING.  WE ARE NOT HOLDING THAT EVERY
TIME A BUS STOPS AT A WHOLLY INDEPENDENT ROADSIDE RESTAURANT THE
INTERSTATE COMMERCE ACT REQUIRES THAT RESTAURANT SERVICE BE SUPPLIED IN
HARMONY WITH THE PROVISIONS OF THAT ACT.  WE DECIDE ONLY THIS CASE, ON
ITS FACTS, WHERE CIRCUMSTANCES SHOW THAT THE TERMINAL AND RESTAURANT
OPERATE AS AN INTEGRAL PART OF THE BUS CARRIER'S TRANSPORTATION SERVICE
FOR INTERSTATE PASSENGERS.  UNDER SUCH CIRCUMSTANCES, AN INTERSTATE
PASSENGER NEED NOT INQUIRE INTO DOCUMENTS OF TITLE OR CONTRACTUAL
ARRANGEMENTS IN ORDER TO DETERMINE WHETHER HE HAS A RIGHT TO BE SERVED
WITHOUT DISCRIMINATION. 

THE JUDGMENT OF THE SUPREME COURT OF VIRGINIA IS REVERSED AND THE
CAUSE IS REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  SEE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
V. ST. LOUIS-S.F.R. CO., 297 I.C.C. 335, 347-348, IN WHICH THE
INTERSTATE COMMERCE COMMISSION HELD THAT A RAILROAD TERMINAL
DISCRIMINATES IN VIOLATION OF SEC. 3(1) IF IT MAINTAINS WAITING ROOMS
FOR THE EXCLUSIVE USE OF NEGROES.  THE COMMISSION REGARDED ASSIGNMENT
TO ACCOMMODATIONS OR FACILITIES IN A RAILROAD TERMINAL SOLELY ON THE
BASIS OF RACE AS AN IMPLICATION OF INHERENT INFERIORITY AND FOUND IT TO
BE UNREASONABLE. 

FN2  "THE 'SERVICES' AND 'TRANSPORTATION' TO WHICH THIS CHAPTER
APPLIES INCLUDE ALL VEHICLES OPERATED BY, FOR, OR IN THE INTEREST OF
ANY MOTOR CARRIER IRRESPECTIVE OF OWNERSHIP OR OF CONTRACT, EXPRESS OR
IMPLIED, TOGETHER WITH ALL FACILITIES AND PROPERTY OPERATED OR
CONTROLLED BY ANY SUCH CARRIER OR CARRIERS, AND USED IN THE
TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OR FOREIGN
COMMERCE OR IN THE PERFORMANCE OF ANY SERVICE IN CONNECTION
THEREWITH." 

FN3  CF. ATCHISON, TOPEKA & S.F.R. CO., 135 I.C.C. 633, 634-635, IN
WHICH THE COMMISSION HELD THAT RAILROAD-OWNED HOTELS AND RESTAURANTS
USED FOR RAILROAD PASSENGERS AND EMPLOYEES, AND AS AN INCIDENT TO THE
OPERATION AND MANAGEMENT OF THE RAILROAD, SHOULD BE ACCORDED A COMMON
CARRIER CLASSIFICATION. 

FN4  BECAUSE THE EVIDENCE SHOWS THAT THIS TERMINAL RESTAURANT WAS
UTILIZED AS AN INTEGRAL PART OF THE TRANSPORTATION OF INTERSTATE
PASSENGERS, WE NEED NOT DECIDE WHETHER DISCRIMINATION ON THE BASIS OF
COLOR BY A BUS TERMINAL LESSEE RESTAURANT WOULD VIOLATE SEC. 216(D) IN
THE ABSENCE OF SUCH CIRCUMSTANCES.  CF. NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE V. ST. LOUIS-S.F.R. CO., SUPRA, AT 343
344. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE CLARK JOINS,
DISSENTING. 

NEITHER IN THE SUPREME COURT OF APPEALS OF VIRGINIA NOR IN HIS
PETITION FOR CERTIORARI OR IN HIS BRIEF ON THE MERITS IN THIS COURT DID
PETITITIONER CHALLENGE THE JUDGMENT ON THE GROUND THAT IT WAS OBTAINED
IN VIOLATION OF THE INTERSTATE COMMERCE ACT.  I THEREFORE RESPECTFULLY
SUBMIT THAT, UNDER OUR RULES AND DECISIONS, NO SUCH QUESTION IS
PRESENTED OR OPEN FOR CONSIDERATION HERE.  (FN1)  BUT EVEN IF THE COURT
PROPERLY MAY PROCEED, AS IT HAS PROCEEDED, TO DECIDE THE CASE UNDER
THAT ACT, AND NOT AT ALL ON THE CONSTITUTIONAL GROUNDS SOLELY RELIED ON
BY PETITIONER, (FN2) I MUST SAY, WITH ALL DEFERENCE, THAT THE FACTS IN
THIS RECORD DO NOT SHOW THAT PETITIONER WAS CONVICTED OF TRESPASS IN
VIOLATION OF THAT ACT. 

FOR ME, THE DECISIVE QUESTION IN THIS CASE IS WHETHER PETITIONER HAD
A LEGAL RIGHT TO REMAIN IN THE RESTAURANT INVOLVED AFTER BEING ORDERED
TO LEAVE IT BY THE PROPRIETOR.  IF HE DID NOT HAVE THAT LEGAL RIGHT,
HOWEVER ARISING, HE WAS GUILTY OF TRESPASS AND, UNLESS PROSCRIBED BY
SOME FEDERAL LAW, HIS CONVICTION THEREFOR WAS LEGALLY ADJUDGED UNDER
SEC. 18-225 OF THE CODE OF VIRGINIA.  (FN3) 

IF THE FACTS IN THIS RECORD COULD FAIRLY BE SAID TO SHOW THAT THE
RESTAURANT WAS A FACILITY "OPERATED OR CONTROLLED BY ANY MOTOR CARRIER
OR CARRIERS, AND USED IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY
IN INTERSTATE OR FOREIGN COMMERCE," SEC. 203(A)(19) OF PART II OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 303(A)(19), I WOULD AGREE THAT
PETITIONER HAD A LEGAL RIGHT TO REMAIN IN AND TO INSIST ON SERVICE BY
THAT RESTAURANT AND, HENCE, WAS NOT GUILTY OF TRESPASS IN SO REMAINING
AND INSISTING THOUGH IN DEFIANCE OF THE MANAGER'S ORDER TO LEAVE, FOR
SEC. 216(D) OF THE ACT, 49 U.S.C. SEC. 316(D), MAKES IT UNLAWFUL FOR A
MOTOR CARRIER WHILE ENGAGED IN INTERSTATE COMMERCE "TO SUBJECT ANY
PARTICULAR PERSON  ...  TO ANY UNJUST DISCRIMINATION," AND THIS COURT
HAS HELD THAT ANY DISCRIMINATION BY A CARRIER AGAINST ITS INTERSTATE
PASSENGER ON ACCOUNT OF HIS COLOR IN THE USE OF ITS DINING FACILITIES
IS AN UNJUST DISCRIMINATION.  HENDERSON V. UNITED STATES, 339 U.S.
816.  CF. MITCHELL V. UNITED STATES, 313 U.S. 80. 

BUT I RESPECTFULLY SUBMIT THAT THOSE ARE NOT THE FACTS SHOWN BY THIS
RECORD.  AS I READ IT, THERE IS NO EVIDENCE IN THIS RECORD EVEN TENDING
TO SHOW THAT THE RESTAURANT WAS "OPERATED OR CONTROLLED BY ANY SUCH
CARRIER," DIRECTLY OR INDIRECTLY.  INSTEAD, ALL OF THE RELEVANT
EVIDENCE, NONE OF WHICH WAS CONTRADICTED, SHOWS THAT THE RESTAURANT WAS
OWNED AND CONTROLLED BY A NONCARRIER WHO ALONE OPERATED IT AS A LOCAL
AND PRIVATE ENTERPRISE.  THE EVIDENCE WAS VERY BRIEF, CONSISTING ONLY
OF AN EXHIBIT (A LEASE) AND THE TESTIMONY OF THE ASSISTANT MANAGER OF
THE RESTAURANT, OF A POLICE OFFICER AND OF PETITIONER - ALL, EXCEPT THE
EXHIBIT, BEING CONTAINED ON 10 PAGES OF THE PRINTED RECORD.  THE LEASE
IS IN THE USUAL AND COMMON FORM AND TERMS.  BY IT, THE OWNER OF THE
BUILDING, TRAILWAYS BUS TERMINAL, INC., A VIRGINIA CORPORATION, AS
LESSOR, DEMISED TO THE RESTAURANT COMPANY, BUS TERMINAL RESTAURANT OF
RICHMOND, INC., A VIRGINIA CORPORATION, AS LESSEE, CERTAIN DESCRIBED
"SPACE" IN THE LESSOR'S BUS STATION BUILDING IN RICHMOND, VIRGINIA,
"FOR USE BY LESSEE AS A RESTAURANT, LUNCHROOM, SODA FOUNTAIN AND NEWS
STAND," FOR A TERM OF FIVE YEARS FROM DECEMBER 2, 1953 (WITH AN OPTION
IN THE LESSEE TO RENEW, ON THE SAME TERMS, FOR AN ADDITIONAL FIVE-YEAR
TERM), AT AN ANNUAL RENTAL OF $30,000 (PAYABLE IN EQUAL MONTHLY
INSTALLMENTS) PLUS 12% OF LESSEE'S GROSS RECEIPTS FROM THE DEMISED
PREMISES IN EXCESS OF $275,000 (PAYABLE AT THE END OF EACH YEAR). 
(FN4) 

THERE IS NOT A WORD OF EVIDENCE THAT ANY CARRIER HAD ANY INTEREST IN
OR CONTROL OVER THE LESSEE OR ITS RESTAURANT.  NOR IS THERE ANY
SUGGESTION IN THE RECORD THAT THE LEASE OR THE LESSEE'S RESTAURANT
OPERATIONS UNDER IT WERE ANYTHING OTHER THAN BONA FIDE AND FOR A
LEGITIMATE AND PRIVATE BUSINESS PURPOSE.  INDEED, THERE IS NOT A WORD
OF EVIDENCE IN THE RECORD TENDING TO SHOW THAT ANY CARRIER EVEN HAD ANY
INTEREST IN OR CONTROL OVER THE LESSOR CORPORATION THAT OWNED THE
BUILDING.  IN TRUTH, THE RECORD DOES NOT EVEN SHOW THE NAME OF THE
CARRIER ON WHICH PETITIONER WAS TRAVELING OR IDENTIFY IT OTHER THAN AS
"TRAILWAYS."  (FN5)  ON THE OTHER HAND, THE ASSISTANT MANAGER OF THE
RESTAURANT TESTIFIED, WITHOUT SUGGESTION OF CONTRADICTION, THAT "THE
COMPANY THAT OPERATES THE RESTAURANT IS NOT AFFILIATED IN ANY WAY WITH
THE BUS COMPANY," AND THAT "THE BUS COMPANY HAS NO CONTROL OVER THE
OPERATION OF THE RESTAURANT."  THERE WAS SIMPLY NO EVIDENCE TO THE
CONTRARY. 

THE COURT SEEMS TO AGREE THAT "RESPONDENT CORRECTLY POINTS OUT THAT
...  THE EVIDENCE IN THIS RECORD DOES NOT SHOW THAT THE BUS COMPANY
OWNS OR ACTIVELY OPERATES OR DIRECTLY CONTROLS THE BUS TERMINAL OR THE
RESTAURANT IN IT."  BUT IT SEEMS TO HOLD, AS I READ ITS OPINION, THAT A
MOTOR CARRIER'S REGULAR "USE" OF A RESTAURANT, THOUGH IT BE "NEITHER
OWNED, CONTROLLED NOR OPERATED" BY THE MOTOR CARRIER, MAKES THE
RESTAURANT A FACILITY "OPERATED OR CONTROLLED BY THE MOTOR CARRIER OR
CARRIERS" WITHIN THE MEANING OF SEC. 203(A)(19) OF THE INTERSTATE
COMMERCE ACT.  I MUST RESPECTFULLY DISAGREE.  TO ME, IT SEEMS RATHER
PLAIN THAT WHEN CONGRESS, IN SEC. 203(A)(19), SAID THAT THE "
'SERVICES' AND 'TRANSPORTATION'" TO WHICH PART II OF THE ACT APPLIES
SHALL INCLUDE "ALL VEHICLES ...  TOGETHER WITH ALL FACILITIES AND
PROPERTY OPERATED OR CONTROLLED BY ANY SUCH CARRIER OR CARRIERS, AND
USED IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OR
FOREIGN COMMERCE OR IN THE PERFORMANCE OF ANY SERVICE IN CONNECTION
THEREWITH," IT HARDLY MEANT TO INCLUDE A PRIVATE RESTAURANT, "NEITHER
OWNED, OPERATED NOR CONTROLLED" BY A CARRIER.  SURELY SUCH "USE" OF A
PRIVATE RESTAURANT BY A MOTOR CARRIER AS RESULTS FROM STOPPING AND
OPENING ITS BUSES IN FRONT OF OR NEAR A RESTAURANT DOES NOT MAKE THE
RESTAURANT A FACILITY "OPERATED OR CONTROLLED BY" THE CARRIER, WITHIN
THE MEANING OF SEC. 203(A)(19) OR IN ANY TRUE SENSE.  THIS SIMPLE, AND
I THINK OBVIOUS, PRINCIPLE WAS RECOGNIZED AND CORRECTLY APPLIED BY THE
COMMISSION AS RECENTLY AS NOVEMBER 1955 IN N.A.A.C.P. V. ST. LOUIS,
S.F.R. CO., 297 I.C.C. 335.  THERE, THE RAILROAD TERMINAL OR STATION
BUILDING IN RICHMOND, VIRGINIA, WAS OWNED BY RICHMOND TERMINAL RAILWAY
COMPANY (FN6) - ITSELF A CARRIER UNDER SEC. 3(1) OF PART I OF THE ACT -
WHICH HAD LEASED SPACE IN THAT BUILDING TO UNION NEWS COMPANY FOR A
TERM OF 10 YEARS, BUT SUBJECT TO TERMINATION AT THE OPTION OF EITHER
PARTY ON 90 DAYS' NOTICE, FOR USE AS A RESTAURANT.  (FN7)  IN REJECTING
THE CONTENTION THAT THE UNION NEWS COMPANY'S OPERATION OF THE
RESTAURANT ON A RACIALLY SEGREGATED BASIS VIOLATED SEC. 3(1) OF PART I
OF THE ACT, THE COMMISSION SAID: 

"UNLESS THE OPERATION OF THE LUNCHROOMS CAN BE FOUND TO BE THAT OF A
COMMON CARRIER SUBJECT TO PART I OF THE ACT, IT CANNOT BE REGULATED
UNDER SECTION 3(1), AND WE ARE UNABLE SO TO FIND ON THE FACTS BEFORE
US."  ID., AT 344: 

AND THE COMMISSION CONCLUDED: 

"WE FURTHER FIND THAT THE OPERATION BY A LESSEE (NONCARRIER) OF
SEPARATE LUNCHROOM FACILITIES FOR WHITE AND COLORED PERSONS IN THE
RAILWAY STATION AT RICHMOND, CONSTITUTES A FUNCTION OR SERVICE WHICH IS
NOT WITHIN THE JURISDICTION OF THIS COMMISSION."  ID., AT 348. 

I WOULD AGREE WITH THE COURT THAT "IF THE BUS CARRIER HAD VOLUNTEERED
TO MAKE  ...  RESTAURANT FACILITIES AND SERVICES AVAILABLE TO ITS
INTERSTATE PASSENGERS AS A REGULAR PART OF THEIR TRANSPORTATION, AND
THE  ...  RESTAURANT HAD ACQUIESCED  ...  IN THIS UNDERTAKING," THE
RESTAURANT WOULD THEN HAVE BEEN BOUND TO SERVE THE CARRIER'S INTERSTATE
PASSENGERS WITHOUT DISCRIMINATION.  FOR, IN THAT CASE, THE RESTAURANT
WOULD HAVE BEEN MADE A FACILITY OF THE CARRIER, WITHIN THE MEANING OF
SEC. 203(A)(19), AND SEC. 216(D) WOULD INHIBIT BOTH THE CARRIER AND THE
RESTAURANT FROM DISCRIMINATING AGAINST THE CARRIER'S INTERSTATE
PASSENGERS ON ACCOUNT OF THEIR COLOR, OR ON ANY OTHER ACCOUNT, IN THE
USE OF THE RESTAURANT FACILITIES THUS PROVIDED.  HENDERSON V. UNITED
STATES, SUPRA.  BUT THAT IS NOT THIS CASE.  AS WE HAVE SHOWN, THERE IS
NO EVIDENCE IN THIS RECORD THAT THE CARRIER ON WHICH PETITIONER WAS
TRAVELING, WHATEVER MAY HAVE BEEN ITS NAME, HAD "VOLUNTEERED TO MAKE
...  RESTAURANT FACILITIES AND SERVICES AVAILABLE TO ITS INTERSTATE
PASSENGERS" AT THIS RESTAURANT "AS A REGULAR PART OF THEIR
TRANSPORTATION," OR THAT THE PROPRIETOR OF THIS RESTAURANT EVER
"ACQUIESCED" IN ANY SUCH "UNDERTAKING."  THERE IS NO EVIDENCE OF ANY
AGREEMENT, EXPRESS OR IMPLIED, BETWEEN THE PROPRIETOR OF THIS
RESTAURANT AND ANY BUS CARRIER.  INSTEAD, THE UNDISPUTED EVIDENCE IS
THAT THE RESTAURANT WAS NOT IN ANY WAY AFFILIATED WITH OR CONTROLLED BY
ANY BUS CARRIER.  ON THIS EVIDENCE, I AM UNABLE TO FIND ANY BASIS TO
SUPPORT A CONCLUSION THAT THIS RESTAURANT WAS IN SOME WAY MADE A
FACILITY OF THE BUS CARRIER, OR SUBJECT TO PART II OF THE INTERSTATE
COMMERCE ACT. 

FOR THESE REASONS, I CANNOT AGREE ON THIS RECORD THAT PETITIONER'S
CONVICTION OF TRESPASS UNDER SEC. 18-225 OF THE CODE OF VIRGINIA WAS
HAD IN VIOLATION OF THE INTERSTATE COMMERCE ACT.  SINCE THE COURT'S
OPINION DOES NOT EXPLORE THE CONSTITUTIONAL GROUNDS RELIED ON BY
PETITIONER, I REFRAIN FROM INTIMATING ANY VIEWS ON THOSE SUBJECTS. 
FN1  SEE OUR RULES 23(1)(C) AND 40(1)(D)(1); LAWN V. UNITED STATES, 355
U.S. 339, 362, N. 16, AND CASES CITED. 

FN2  THE ONLY GROUNDS RELIED ON BY PETITIONER IN THE SUPREME COURT OF
APPEALS OF VIRGINIA AND IN HIS PETITION FOR CERTIORARI AND BRIEF ON THE
MERITS IN THIS COURT WERE THAT HIS CONVICTION IS INVALID AS AN UNDUE
BURDEN ON INTERSTATE COMMERCE IN VIOLATION OF ART. I, SEC.  8, CL. 3,
AND ALSO VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. 

FN3  SECTION 18-225 OF THE CODE OF VIRGINIA, IN RELEVANT PART,
PROVIDES: 

"IF ANY PERSON SHALL WITHOUT AUTHORITY OF LAW GO UPON OR REMAIN UPON
THE LANDS OR PREMISES OF ANOTHER, AFTER HAVING BEEN FORBIDDEN TO DO SO
BY THE OWNER, LESSEE, CUSTODIAN OR OTHER PERSON LAWFULLY IN CHARGE OF
SUCH LAND,  ...  HE SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND UPON
CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT MORE THAN ONE
HUNDRED DOLLARS OR BY CONFINEMENT IN JAIL NOT EXCEEDING THIRTY DAYS, OR
BY BOTH SUCH FINE AND IMPRISONMENT." 

FN4 UNDER OTHER PROVISIONS OF THE LEASE, THE LESSEE COVENANTED, IN
SUBSTANCE, THAT IT WOULD ACQUIRE AND INSTALL IN THE LEASED SPACE, AT
ITS OWN EXPENSE, ALL THINGS, INCLUDING PLUMBING AND WIRING, WHICH MAY
BE REASONABLY NECESSARY TO THE EQUIPMENT AND OPERATION OF THE
RESTAURANT; TO PROVIDE AND PAY FOR ALL GAS AND ELECTRIC CURRENT, EXCEPT
FOR OVERHEAD LIGHTS; TO KEEP THE PREMISES AND EMPLOYEES NEAT AND CLEAN
AND TO OPERATE THE RESTAURANT "IN KEEPING WITH THE CHARACTER OF SERVICE
MAINTAINED IN AN UP-TO-DATE, MODERN BUS TERMINAL"; THAT IT WOULD NOT
KEEP ANY COIN-CONTROLLED MACHINES OR SELL INTOXICANTS ON THE DEMISED
PREMISES NOR MAKE "ANY SALES ON BUSES OPERATING IN AND OUT OF SAID BUS
STATION"; THAT IT WOULD "COMPLY WITH ALL THE ORDINANCES OF THE CITY OF
RICHMOND, AND THE LAWS OF THE UNITED STATES AND THE STATE OF VIRGINIA
IN RESPECT TO THE CONDUCT OF BUSINESS OF LESSEE ON THE DEMISED
PREMISES"; TO TAKE GOOD CARE OF THE PREMISES, AND TO SURRENDER THEM AT
THE END OF THE TERM IN THE SAME CONDITION AS WHEN RECEIVED "ORDINARY
WEAR AND TEAR EXCEPTED." 

FN5  OBVIOUSLY RECOGNIZING THESE GLARING DEFICIENCIES IN THE
EVIDENCE, COUNSEL FOR PETITIONER AND FOR THE GOVERNMENT, AS AMICUS
CURIAE, HAVE SUBMITTED WITH THEIR BRIEFS IN THIS COURT COPIES OF
CERTAIN ANNUAL REPORTS OF VIRGINIA STAGE LINES, INC. (WHICH PROBABLY
WAS THE CARRIER ON WHICH PETITIONER WAS TRAVELING), CAROLINA COACH
COMPANY, AND OF TRAILWAYS BUS TERMINAL, INC. (THE OWNER OF THE BUILDING
AND LESSOR OF THE SPACE OCCUPIED BY THE LESSEE'S RESTAURANT), TO THE
STATE CORPORATION COMMISSION OF VIRGINIA, PURPORTING TO SHOW THAT THOSE
COMPANIES WERE DOING BUSINESS IN VIRGINIA IN 1958 AND 1959, AND A COPY
OF CERTAIN PAGES OF THE ANNUAL REPORT FILED BY VIRGINIA STAGE LINES,
INC., WITH THE INTERSTATE COMMERCE COMMISSION FOR THE YEAR 1959,
PURPORTING TO SHOW THAT THE CAPITAL STOCK OF TRAILWAYS BUS TERMINAL,
INC., WAS OWNED IN EQUAL PARTS BY VIRGINIA STAGE LINES, INC., AND
CAROLINA COACH COMPANY.  BUT NONE OF THOSE DOCUMENTS WAS PUT IN
EVIDENCE NOR BROUGHT TO THE ATTENTION OF THE SUPREME COURT OF APPEALS
OF VIRGINIA, AND IT APPEARS, AS CONTENDED BY VIRGINIA, THAT THE
VIRGINIA COURT COULD NOT TAKE JUDICIAL NOTICE OF THOSE DOCUMENTS.  SEE
SECS. 8-264 AND 8-266 OF THE CODE OF VIRGINIA; COMMONWEALTH V. CASTNER,
138 VA. 81, 121 S.E. 894; SISK V. TOWN OF SHENANDOAH, 200 VA. 277, 105
S.E.2D 169; BELL V. HAGMANN, 200 VA. 626, 107 S.E.2D 426.  IN THE LIGHT
OF THESE FACTS THE PROFFERED DOCUMENTS CANNOT BE CONSIDERED HERE.  LAWN
V. UNITED STATES, 355 U.S. 339, 354; WOLFE V. NORTH CAROLINA, 364 U.S.
177.  BUT EVEN IF THOSE DOCUMENTS COULD BE CONSIDERED HERE, THEY WOULD
NOT AID PETITIONER, FOR THEY DO NOT PURPORT TO SHOW THAT ANY CARRIER
HAD ANY INTEREST IN OR CONTROL OVER THE RESTAURANT INVOLVED OR IN OR
OVER BUS TERMINAL RESTAURANT OF RICHMOND, THE COMPANY THAT OWNED AND
OPERATED THE RESTAURANT. 

FN6  THE RICHMOND TERMINAL RAILWAY COMPANY WAS CONTROLLED JOINTLY BY
TWO RAILROADS - THE RICHMOND, FREDERICKSBURG & POTOMAC RAILWAY CO. AND
THE ATLANTIC COAST LINE. 

FN7  THE LEASE INVOLVED IN THAT CASE WAS EVIDENTLY SIMILAR TO THE ONE
HERE.  SPEAKING OF THAT LEASE, THE COMMISSION SAID: 

"THE LEASE IS SILENT AS TO RACIAL SEGREGATION.  THE TERMINAL HAS
CERTAIN POWERS OF SUPERVISION FOR A PURPOSE WHICH MAY BE DESCRIBED AS
POLICING.  THE LESSEE IS OBLIGATED TO 'COMPLY WITH THE REQUIREMENTS OF
THE DEPARTMENT OF PUBLIC HEALTH, CITY OF RICHMOND, AND WITH ALL OTHER
LAWFUL GOVERNMENTAL RULES AND REGULATIONS.'  THE CONTEXT, HOWEVER,
INDICATES THAT THIS REQUIREMENT IS FOR THE PURPOSE OF KEEPING THE
PREMISES IN A NEAT, CLEAN, AND ORDERLY CONDITION, AND DOES NOT RENDER
THE LESSEE LIABLE FOR VIOLATIONS OF THE INTERSTATE COMMERCE ACT."  297
I.C.C., AT 343. 
..END :














SCOTT V. CALIFORNIA 364 U.S. 471 


NO. 241, MISC.  DECIDED DECEMBER 5, 1960 - REPORTED BELOW:  176 CAL.
APP. 2D 458, 1 CAL. RPTR.  600. 


APPELLANT WAS CONVICTED IN A STATE COURT OF MURDERING HIS WIFE.  THE
EVIDENCE AGAINST HIM WAS ENTIRELY CIRCUMSTANTIAL.  PROOF OF THE CORPUS
DELICTI, AS WELL AS PROOF OF APPELLANT'S CRIMINAL AGENCY, WAS TO BE
INFERRED ONLY FROM HIS WIFE'S INEXPLICABLE DISAPPEARANCE COUPLED WITH
APPELLANT'S UNNATURAL BEHAVIOR THEREAFTER.  HE DID NOT TAKE THE STAND
IN HIS OWN DEFENSE, AND THE TRIAL JUDGE INSTRUCTED THE JURY THAT HIS
FAILURE TO DO SO COULD BE MADE THE BASIS OF INFERENCES UNFAVORABLE TO
HIM.  ON APPEAL TO THIS COURT, APPELLANT CONTENDED THAT HIS CONVICTION
VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  HELD:
APPEAL DISMISSED AND CERTIORARI DENIED. 

SCOTT V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE SALIENT FACTS IN THIS CASE ARE RELATED IN 176 CAL. APP. 2D 458, 1
CAL. RPTR.  600.  A READING OF THE REPORT SHOWS THAT THE ENTIRE
EVIDENCE AGAINST THE DEFENDANT WAS CIRCUMSTANTIAL.  IT WAS NOT EVEN
SHOWN DIRECTLY THAT HIS WIFE, WHOM HE IS NOW CONVICTED OF MURDERING, IS
DEAD.  PROOF OF THE CORPUS DELICTI, AS WELL AS PROOF OF PETITIONER'S
CRIMINAL AGENCY, WAS TO BE INFERRED FROM HIS WIFE'S INEXPLICABLE
DISAPPEARANCE COUPLED WITH HIS UNNATURAL BEHAVIOR THEREAFTER.  A
PROMINENT ASPECT OF THIS UNNATURAL BEHAVIOR WAS HIS SILENCE.  AT THE
TRIAL, THE PETITIONER DID NOT TAKE THE STAND.  THE TRIAL JUDGE IN
ACCORD WITH CALIFORNIA LAW CHARGED THE JURY AS FOLLOWS: 

"IT IS A CONSTITUTIONAL RIGHT OF A DEFENDANT IN A CRIMINAL TRIAL THAT
HE MAY NOT BE COMPELLED TO TESTIFY.  THUS, WHETHER OR NOT HE DOES
TESTIFY RESTS ENTIRELY IN HIS OWN DECISION.  AS TO ANY EVIDENCE OR
FACTS AGAINST HIM WHICH THE DEFENDANT CAN REASONABLY BE EXPECTED TO
DENY OR EXPLAIN BECAUSE OF FACTS WITHIN HIS KNOWLEDGE, IF HE DOES NOT
TESTIFY, THE JURY MAY TAKE THAT FACT INTO CONSIDERATION AS TENDING TO
INDICATE THE TRUTH OF SUCH EVIDENCE AND AS INDICATING THAT AMONG THE
INFERENCES THAT MAY BE REASONABLY DRAWN THEREFROM THOSE UNFAVORABLE TO
THE DEFENDANT ARE THE MORE PROBABLE.  THE FAILURE OF A DEFENDANT TO
DENY OR EXPLAIN EVIDENCE AGAINST HIM DOES NOT, HOWEVER, CREATE A
PRESUMPTION OF GUILT OR BY ITSELF WARRANT AN INFERENCE OF GUILT, NOR
DOES IT RELIEVE THE PROSECUTION OF ITS BURDEN OF PROVING EVERY
ESSENTIAL ELEMENT OF THE CRIME AND THE GUILT OF THE DEFENDANT BEYOND A
REASONABLE DOUBT." 

USING A DEFENDANT'S SILENCE AS EVIDENCE AGAINST HIM IS ONE WAY OF
HAVING HIM TESTIFY AGAINST HIMSELF.  THIS WOULD NOT BE PERMITTED, WE
HAVE ASSUMED, IN A FEDERAL TRIAL BY REASON OF THE FIFTH AMENDMENT. 
ADAMSON V. CALIFORNIA, 332 U.S. 46, 50.  THAT RULE, EMBODIED IN A
FEDERAL STATUTE, HAS MUCH HISTORY BEHIND IT.  SEE WILSON V. UNITED
STATES, 149 U.S. 60.  ITS VALUE IN PROTECTING THE INTERESTS OF AN
ACCUSED WAS WELL STATED IN BRUNO V. UNITED STATES, 308 U.S. 287, 294,
WHERE WE SAID: 

"TO THE SUGGESTION THAT IT BENEFITS A DEFENDANT WHO FAILS TO TAKE THE
STAND NOT TO HAVE THE ATTENTION OF THE JURY DIRECTED TO THAT FACT, IT
SUFFICES TO SAY THAT, HOWEVER DIFFICULT IT MAY BE TO EXERCISE
ENLIGHTENED SELF-INTEREST, THE ACCUSED SHOULD BE ALLOWED TO MAKE HIS
OWN CHOICE WHEN AN ACT OF CONGRESS AUTHORIZES HIM TO CHOOSE.  AND WHEN
IT IS URGED THAT IT IS A PSYCHOLOGICAL IMPOSSIBILITY NOT TO HAVE A
PRESUMPTION ARISE IN THE MINDS OF JURORS AGAINST AN ACCUSED WHO FAILS
TO TESTIFY, THE SHORT ANSWER IS THAT CONGRESS LEGISLATED ON A CONTRARY
ASSUMPTION AND NOT WITHOUT SUPPORT IN EXPERIENCE.  IT WAS FOR CONGRESS
TO DECIDE WHETHER WHAT IT DEEMED LEGALLY SIGNIFICANT WAS
PSYCHOLOGICALLY FUTILE.  CERTAINLY, DESPITE THE VAST ACCUMULATION OF
PSYCHOLOGICAL DATA, WE HAVE NOT YET ATTAINED THAT CERTITUDE ABOUT THE
HUMAN MIND WHICH WOULD JUSTIFY US IN DISREGARDING THE WILL OF CONGRESS
BY A DOGMATIC ASSUMPTION THAT JURORS, IF PROPERLY ADMONISHED, NEITHER
COULD NOR WOULD HEED THE INSTRUCTIONS OF THE TRIAL COURT THAT THE
FAILURE OF AN ACCUSED TO BE A WITNESS IN HIS OWN CAUSE 'SHALL NOT
CREATE ANY PRESUMPTION AGAINST HIM.'" 

AND SEE JOHNSON V. UNITED STATES, 318 U.S. 189, 199. 

THE COURT IN 1947 HELD THAT THE FOURTEENTH AMENDMENT BY ITS DUE
PROCESS CLAUSE DID NOT INCORPORATE THE FIFTH AMENDMENT (ADAMSON V.
CALIFORNIA, SUPRA), WITH THE RESULT THAT THE FAILURE OF A DEFENDANT TO
TESTIFY COULD BE TAKEN AS EVIDENCE AGAINST HIM.  I DISSENTED IN THAT
CASE AND CONTINUE TO BELIEVE IT WAS WRONG.  THE PRESENT CASE SHOWS HOW
UTTERLY DEVASTATING THE STATE RULE WHICH IT SANCTIONS CAN BE.  I WOULD
ACCORDINGLY NOTE PROBABLE JURISDICTION. 
..END :




KIRSCHKE V. CITY OF HOUSTON 364 U.S. 474 


NO. 426.  DECIDED DECEMBER 5, 1960. 


APPEAL DISMISSED SINCE THE JUDGMENT BELOW IS BASED ON A NONFEDERAL
GROUND ADEQUATE TO SUPPORT IT.

KIRSCHKE ET AL. V. CITY OF HOUSTON. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE APPEAL HEREIN IS DISMISSED FOR THE REASON THAT THE JUDGMENT OF
THE SUPREME COURT OF TEXAS, SOUGHT HERE TO BE REVIEWED, IS BASED UPON A
NONFEDERAL GROUND ADEQUATE TO SUPPORT IT.
..END :













RIELA V. NEW YORK 364 U.S. 474 


NO. 445.  DECIDED DECEMBER 5, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  7 N.Y.2D 571, 166 N.E.2D 840. 


RIELA V. NEW YORK. 

APPEAL FROM THE COUNTY COURT OF TIOGA COUNTY, NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR
CERTIORARI, CERTIORARI IS DENIED. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF
THE OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :













BECK V. BINKS 364 U.S. 475 


NO. 461.  DECIDED DECEMBER 5, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  19 ILL. 2D 72, 165 N.E.2D 292. 


BECK ET AL. V. BINKS, DIRECTOR OF DEPARTMENT OF REGISTRATION AND
EDUCATION OF ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR
CERTIORARI, CERTIORARI IS DENIED. 
..END :















KOTRICH V. COUNTY OF DUPAGE ILLINOIS 364 U.S. 475 


NO. 473.  DECIDED DECEMBER 5, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  19 ILL. 2D 181, 166
N.E.2D 601. 


KOTRICH ET AL. V. COUNTY OF DUPAGE, ILLINOIS, ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















GRIFFITH V. CALIFORNIA 364 U.S. 476 


NO. 457.  DECIDED DECEMBER 5, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  179 CAL. APP. 2D 558, 4
CAL. RPTR.  531. 


GRIFFITH V. CALIFORNIA ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















RAY V. OHIO 364 U.S. 476 


NO. 237, MISC.  DECIDED DECEMBER 5, 1960 - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  170 OHIO ST. 201, 163
N.E.2D 176. 


RAY V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO SUPPLEMENT THE JURISDICTIONAL STATEMENT IS
GRANTED.  THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :












BANDY V. UNITED STATES 364 U.S. 477 


NO. 171, MISC.  DECIDED DECEMBER 5, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CAUSE REMANDED TO COURT OF APPEALS FOR A HEARING OF THE
APPEAL - REPORTED BELOW:  278 F.2D 214. 


BANDY V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  IN LIGHT OF THE CIRCUMSTANCES
POINTED OUT BY THE GOVERNMENT SURROUNDING THE ALLEGED INABILITY OF THE
PETITIONER TO SECURE THE SERVICES OF HIS OWN HANDWRITING EXPERT, THE
ERROR WHICH OCCURRED IN THE "AGREED STATEMENT OF THE CASE" AND WHICH
WAS REPEATED BY THE GOVERNMENT IN ITS BRIEF AND THE COURT OF APPEALS IN
ITS OPINION, THE FAILURE TO SUBPOENA WITNESSES WITH RESPECT TO
PETITIONER'S ALIBI, AND THE DISPUTE WHICH AROSE WITH RESPECT TO
REPRESENTATION OF PETITIONER BY HIS APPOINTED COUNSEL ON APPEAL, THE
JUDGMENT IS VACATED AND THE CAUSE IS REMANDED TO THE COURT OF APPEALS
FOR A HEARING OF THE APPEAL. 
..END :






PEKAO TRADING CORP. V. BRAGALINI 364 U.S. 478 


NO. 483.  DECIDED DECEMBER 5, 1960.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  8 N.Y.2D 903, 168
N.E.2D 823. 


PEKAO TRADING CORP. V. BRAGALINI ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER WOULD NOTE PROBABLE JURISDICTION AND HEAR THE
CASE, THE MORE SO INASMUCH AS THE TRANSACTIONS WHICH NEW YORK HAS TAXED
CONCERNED FOREIGN COMMERCE, UNLIKE THOSE WHICH WERE INVOLVED IN
NORTHWESTERN STATES PORTLAND CEMENT CO. V. MINNESOTA, 358 U.S. 450. 

MR. JUSTICE DOUGLAS IS ALSO OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :









MEYER V. UNITED STATES 364 U.S. 410 


NO. 13.  ARGUED OCTOBER 12, 1960 - DECIDED NOVEMBER 21, 1960 - 275 F.2D
83, AFFIRMED. 


THE PROCEEDS OF TWO LIFE INSURANCE POLICIES WERE MADE PAYABLE IN
MONTHLY PAYMENTS TO THE INSURED'S WIFE FOR HER LIFETIME, BUT, IF SHE
SHOULD DIE BEFORE THE EXPIRATION OF 20 YEARS, HIS DAUGHTER WAS TO
RECEIVE THE PAYMENTS UNTIL 20 YEARS HAD ELAPSED.  WHEN HE DIED, HE WAS
SURVIVED BY HIS WIFE AND DAUGHTER, AND EACH INSURANCE COMPANY
DETERMINED AND SET UP ON ITS BOOKS A SUM REPRESENTING THE AMOUNT
NECESSARY TO FUND THE 240 MONTHLY PAYMENTS FOR THE 20 YEARS AND A
SEPARATE SUM REPRESENTING THE AMOUNT NECESSARY TO FUND THE MONTHLY
PAYMENTS TO THE WIFE SO LONG AS SHE MIGHT LIVE BEYOND THE 240 MONTHS. 
HELD:  THE DECEDENT'S ESTATE WAS NOT ENTITLED TO A MARITAL DEDUCTION
UNDER SEC. 812(E) OF THE INTERNAL REVENUE CODE OF 1939, EVEN WITH
RESPECT TO THAT PORTION OF THE PROCEEDS NECESSARY TO FUND THE MONTHLY
PAYMENTS TO THE WIFE SO LONG AS SHE MIGHT LIVE BEYOND THE 240 MONTHS,
SINCE THE PROCEEDS OF EACH POLICY CONSTITUTED A SINGLE "PROPERTY" AND
THE INTEREST PASSING TO THE WIFE MIGHT "TERMINATE OR FAIL" AND ANOTHER
PERSON MIGHT "POSSESS OR ENJOY A PART OF SUCH PROPERTY AFTER SUCH
TERMINATION OR FAILURE."  PP. 410-416. 

MEYER ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, WHO ARE EXECUTORS OF THE ESTATE OF ALBERT F. MEYER,
BROUGHT THIS SUIT TO RECOVER AN ALLEGED OVERPAYMENT OF FEDERAL ESTATE
TAXES AND THE DISTRICT COURT GRANTED THE RELIEF ASKED.  166 F. SUPP.
629.  THE COURT OF APPEALS REVERSED, 275 F.2D 83, AND WE GRANTED
EXECUTORS' PETITION FOR CERTIORARI, 361 U.S. 929, BECAUSE OF A CONFLICT
OF DECISIONS IN THE CIRCUITS.  CF. IN RE REILLY'S ESTATE, 239 F.2D 797,
DECIDED BY THE COURT OF APPEALS FOR THE THIRD CIRCUIT. 

TWO POLICIES OF LIFE INSURANCE ARE INVOLVED, (FN1) BUT SINCE THEY ARE
IN ALL MATERIAL RESPECTS IDENTICAL, WE NEED DEAL WITH ONLY ONE OF
THEM.  THE POLICY OBLIGATED THE INSURER TO PAY A DEATH BENEFIT OF
$25,187.50, AND THAT SUM WAS INCLUDED BY THE EXECUTORS IN THE FEDERAL
ESTATE TAX RETURN AND THE TAX THEREON WAS PAID.  THE DECEDENT HAD
SELECTED AN OPTIONAL MODE OF SETTLEMENT WHICH PROVIDED FOR THE PAYMENT
OF EQUAL MONTHLY INSTALLMENTS TO HIS WIFE FOR HER LIFE, WITH 240
INSTALLMENTS GUARANTEED, AND FURTHER PROVIDED THAT IF THE WIFE SHOULD
DIE BEFORE RECEIVING THE 240 INSTALLMENTS HIS DAUGHTER WOULD RECEIVE
THE REMAINDER OF THEM, BUT IF BOTH THE WIFE AND THE DAUGHTER DIED
BEFORE RECEIVING THE 240 INSTALLMENTS THE COMMUTED VALUE OF THOSE
UNPAID WAS TO BE PAID IN ONE SUM TO THE ESTATE OF THE LAST ONE OF THEM
TO DIE. 

OF THE TOTAL PROCEEDS OF THE POLICY OF $25,187.50, THE INSURER
DETERMINED THAT $17,956.41 WAS NECESSARY TO FUND THE 240 MONTHLY
PAYMENTS TO THE WIFE, THE DAUGHTER, OR TO THE ESTATE OF THE LAST
SURVIVOR OF THEM, AND THAT THE REMAINING $7,231.09 WAS NECESSARY TO
FUND THE MONTHLY PAYMENTS TO THE WIFE SO LONG AS SHE MIGHT LIVE BEYOND
THE 240 MONTHS.  ACCORDINGLY, THE INSURER MADE SUCH ENTRIES ON ITS
BOOKS. 

THEREAFTER PETITIONERS, AS EXECUTORS, TIMELY FILED A CLAIM FOR REFUND
OF THE AMOUNT OF THE TAX PAID UPON THE $7,231.09 WHICH THE INSURER HAD
SHOWN UPON ITS BOOKS AS NECESSARY TO FUND THE MONTHLY PAYMENTS TO THE
WIFE FOR HER ACTUARIAL EXPECTANCY BEYOND THE 240 MONTHS CERTAIN, ON THE
THEORY THAT THE INSURER'S TREATMENT OF THAT SUM ON ITS BOOKS CREATED A
SEPARATE "PROPERTY" OR FUND PAYABLE TO THE WIFE ALONE, AND HENCE IT
QUALIFIED FOR THE MARITAL DEDUCTION UNDER SEC. 812(E)(1) OF THE
INTERNAL REVENUE CODE OF 1939.  (FN2)  THE CLAIM WAS DENIED, AND THIS
SUIT WAS BROUGHT TO RECOVER THE TAX THAT HAD BEEN PAID ON THAT SUM. 

PETITIONERS CORRECTLY CONCEDE THAT IF THE POLICY CONSTITUTES BUT ONE
"PROPERTY," WITHIN THE MEANING OF THE STATUTE, (FN3) IT WOULD NOT
QUALIFY FOR THE MARITAL DEDUCTION BECAUSE THE WIFE'S INTEREST IN IT
WOULD BE A "TERMINABLE" ONE, WITHIN THE MEANING OF THE STATUTE,
INASMUCH AS THE WIFE MAY DIE BEFORE RECEIPT OF THE 240 GUARANTEED
INSTALLMENTS, IN WHICH EVENT THE UNPAID ONES MUST GO TO THE DAUGHTER IF
THEN LIVING.  THEY CONCEDE, TOO, THAT THE $17,956.41, SHOWN ON THE
INSURER'S BOOKS AS NECESSARY TO FUND THE MONTHLY PAYMENTS FOR THE 240
MONTHS CERTAIN, DOES NOT QUALIFY FOR THE MARITAL DEDUCTION FOR THE SAME
REASONS.  BUT THEY CONTEND THAT, ALTHOUGH THE POLICY MADE NO PROVISION
THEREFOR, THE INSURER'S BOOKKEEPING ENTRIES CONSTITUTED A REAL DIVISION
OF THE INSURANCE PROCEEDS INTO, AND CREATED, TWO "PROPERTIES" - ONE OF
$17,956.41 AND THE OTHER OF $7,231.09 - AND THAT THE LATTER QUALIFIES
FOR THE MARITAL DEDUCTION UNDER THE STATUTE BECAUSE IT IS PAYABLE, IF
AT ALL, ONLY TO THE WIFE - DURING HER LIFETIME BEYOND THE 240 MONTHS -
AND NO OTHER PERSON HAS ANY INTEREST IN IT. 

WHETHER A POLICY OF LIFE INSURANCE MAY CREATE SEVERAL "PROPERTIES" OR
FUNDS, EITHER TERMINABLE OR NONTERMINABLE OR BOTH, WE NEED NOT DECIDE,
FOR WE THINK THE POLICY HERE INVOLVED CONSTITUTED ONLY ONE PROPERTY,
AND MADE ONLY SO MUCH OF ITS PROCEEDS PAYABLE TO THE WIFE AS SHE MIGHT
LIVE TO RECEIVE IN EQUAL MONTHLY INSTALLMENTS, AND MADE ANY GUARANTEED
BALANCE PAYABLE TO THE DAUGHTER.  HENCE, UNDER THE TERMS OF THE POLICY,
THE "INTEREST PASSING TO THE SURVIVING SPOUSE MAY TERMINATE OR FAIL"
AND A "PERSON OTHER THAN THE SURVIVING SPOUSE  ...  MAY POSSESS OR
ENJOY A PART OF SUCH PROPERTY AFTER SUCH TERMINATION OR FAILURE OF THE
INTEREST SO PASSING TO THE SURVIVING SPOUSE; ...  " THEREFORE THE
POLICY AND ITS PROCEEDS - CONSIDERED APART FROM THE PETITIONERS' CLAIM
THAT THE INSURER'S BOOKKEEPING DIVISION OF THE PROCEEDS OF THE POLICY
INTO TWO PARTS CREATED TWO "PROPERTIES" - ARE DISQUALIFIED FOR THE
MARITAL DEDUCTION BY THE EXPRESS PROVISIONS OF SEC. 812(E)(1)(B) OF THE
INTERNAL REVENUE CODE OF 1939.  THE LEGISLATIVE HISTORY OF THE SECTION
FURTHER SUPPORTS AND COMPELS THIS CONCLUSION.  ILLUSTRATING
APPLICATIONS OF THE TERMINABLE INTEREST RULE, THE SENATE COMMITTEE
REPORT GAVE AN EXAMPLE THAT IS IN NO RELEVANT WAY DISTINGUISHABLE FROM
THIS CASE, (FN4) AND MAKES IT VERY CLEAR THAT THE MARITAL DEDUCTION IS
NOT ALLOWABLE IN THE CASE OF AN ANNUITY FOR THE SURVIVING SPOUSE FOR
LIFE IF "UPON THE DEATH OF THE SURVIVING SPOUSE, THE PAYMENTS ARE TO
CONTINUE TO ANOTHER PERSON (NOT THROUGH HER ESTATE) OR THE
UNDISTRIBUTED FUND IS TO BE PAID TO SUCH OTHER PERSON  ... ." 

WE THINK PETITIONERS' ARGUMENT - THAT THE INSURER'S BOOKKEEPING
DIVISION OF THE PROCEEDS OF THE POLICY INTO TWO PARTS CREATED TWO
PROPERTIES - CANNOT WITHSTAND THE PROVISIONS OF THE POLICY AND THE
ACTUAL FACTS RESPECTING THE INSURER'S BOOKKEEPING DIVISION OF ITS
PROCEEDS, UNDER THE CLEAR TERMS OF THE STATUTE AND ITS LEGISLATIVE
HISTORY.  THE POLICY MADE NO PROVISION FOR THE CREATION OF TWO SEPARATE
PROPERTIES - ONE A PROPERTY SUFFICIENT TO PROVIDE PAYMENTS FOR 240
MONTHS, TO THE WIFE WHILE SHE LIVED AND ANY REMAINDER TO THE DAUGHTER,
AND ANOTHER PROPERTY SUFFICIENT TO PROVIDE AN ANNUITY TO THE WIFE FOR
THE PERIOD OF HER ACTUARIAL EXPECTANCY BEYOND THE 240 MONTHS - AND NO
SUCH SEPARATE PROPERTIES WERE IN FACT CREATED.  THE ALLOCATIONS MADE
WERE MERELY ACTUARIAL ONES - MERE BOOKKEEPING ENTRIES - MADE BY THE
INSURER ON ITS OWN BOOKS FOR ITS OWN CONVENIENCE AFTER THE INSURED, THE
OTHER PARTY TO THE CONTRACT, HAD DIED.  THE WIFE AND THE DAUGHTER WERE,
RESPECTIVELY, PRIMARY AND CONTINGENT BENEFICIARIES OF THE POLICY
ALONE.  NEITHER OF THEM HAD ANY TITLE TO, NOR RIGHT TO RECEIVE, ANY
SPECIAL FUND, AND INDEED NONE WAS ACTUALLY CREATED.  THE BOOKKEEPING
ENTRIES MADE BY THE INSURER NO MORE CREATED OR MEASURED THEIR RIGHTS
THAN THE INSURER'S ERASURE OF THOSE ENTRIES - WHICH IT WAS FREE TO MAKE
AT ANY TIME - WOULD DESTROY THEIR RIGHTS.  THEIR RIGHTS DERIVE SOLELY
FROM THE POLICY.  IT, NOT THE INSURER'S BOOKKEEPING ENTRIES, CREATED
AND CONSTITUTES THE PROPERTY INVOLVED.  ANY ACTION BY THE BENEFICIARIES
TO ENFORCE THEIR RIGHTS AGAINST THE INSURER WOULD HAVE TO BE UPON THE
POLICY, NOT UPON THE ENTRIES THE INSURER HAD MADE ON ITS BOOKS FOR ITS
OWN ACTUARIAL INFORMATION AND CONVENIENCE.  NOR WOULD EXHAUSTION OF THE
SUM OF THOSE ENTRIES CONSTITUTE ANY DEFENSE TO THE INSURER AGAINST THE
CLAIM OF EITHER BENEFICIARY FOR AMOUNTS DUE HER UNDER THE POLICY. 

THE PROCEEDS OF THE POLICY WERE NOT PAYABLE TO THE WIFE (OR TO HER
ESTATE OR APPOINTEE) ALONE AND AT ALL EVENTS, BUT WERE PAYABLE IN
MONTHLY INSTALLMENTS TO HER FOR LIFE, AND IF ANY OBLIGATION UNDER THE
POLICY REMAINED UNDISCHARGED AT HER DEATH IT WAS PAYABLE TO THE
DAUGHTER IF LIVING OR, IF NOT, TO THE ESTATE OF THE LAST OF THEM TO
DIE.  IT FOLLOWS THAT THE "INTEREST PASSING TO THE SURVIVING SPOUSE MAY
TERMINATE OR FAIL" AND THAT A "PERSON OTHER THAN THE SURVIVING SPOUSE
...  MAY POSSESS OR ENJOY A PART OF SUCH PROPERTY AFTER SUCH
TERMINATION OR FAILURE OF THE INTEREST SO PASSING TO THE SURVIVING
SPOUSE; ...  " AND HENCE THE PROPERTY IS DISQUALIFIED FOR THE MARITAL
DEDUCTION BY THE EXPRESS PROVISIONS OF SEC. 812(E)(1)(B) OF THE
INTERNAL REVENUE CODE OF 1939.  AFFIRMED. 

FN1  ONE OF THE POLICIES WAS ISSUED BY NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY IN THE AMOUNT OF $25,187.50, AND THE OTHER WAS ISSUED
BY JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY IN THE AMOUNT OF
$5,019.60. 

FN2  SECTION 812(E) PROVIDES IN RELEVANT PART: 

"(1)  ALLOWANCE OF MARITAL DEDUCTION. 

"(A)  IN GENERAL.  - AN AMOUNT EQUAL TO THE VALUE OF ANY INTEREST IN
PROPERTY WHICH PASSES OR HAS PASSED FROM THE DECEDENT TO HIS SURVIVING
SPOUSE, BUT ONLY TO THE EXTENT THAT SUCH INTEREST IS INCLUDED IN
DETERMINING THE VALUE OF THE GROSS ESTATE. 

"(B)  LIFE ESTATE OR OTHER TERMINABLE INTEREST.  - WHERE, UPON THE
LAPSE OF TIME, UPON THE OCCURRENCE OF AN EVENT OR CONTINGENCY, OR UPON
THE FAILURE OF AN EVENT OR CONTINGENCY TO OCCUR, SUCH INTEREST PASSING
TO THE SURVIVING SPOUSE WILL TERMINATE OR FAIL, NO DEDUCTION SHALL BE
ALLOWED WITH RESPECT TO SUCH INTEREST: 

"(I)  IF AN INTEREST IN SUCH PROPERTY PASSES OR HAS PASSED (FOR LESS
THAN AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH) FROM
THE DECEDENT TO ANY PERSON OTHER THAN SUCH SURVIVING SPOUSE (OR THE
ESTATE OF SUCH SPOUSE); AND: 

"(II)  IF BY REASON OF SUCH PASSING SUCH PERSON (OR HIS HEIRS OR
ASSIGNS) MAY POSSESS OR ENJOY ANY PART OF SUCH PROPERTY AFTER SUCH
TERMINATION OR FAILURE OF THE INTEREST SO PASSING TO THE SURVIVING
SPOUSE; ...  ." 

FN3  "THE TERMS 'INTEREST' AND 'PROPERTY,' AS USED IN SECTION 812(E)
HAVE SEPARATE AND DISTINCT MEANINGS.  THE TERM 'PROPERTY' IS USED IN A
COMPREHENSIVE SENSE AND INCLUDES ALL OBJECTS OR RIGHTS WHICH ARE
SUSCEPTIBLE OF OWNERSHIP.  THE TERM 'INTEREST' REFERS TO THE EXTENT OF
OWNERSHIP, THAT IS, TO THE ESTATE OR THE QUALITY AND QUANTUM OF
OWNERSHIP BY THE SURVIVING SPOUSE OR OTHER PERSON, OF PARTICULAR
PROPERTY."  S. REP. NO. 1013, PART 2, 80TH CONG., 2D SESS., P. 4. 

FN4  "EXAMPLE (2).  THE DECEDENT DURING HIS LIFETIME PURCHASED AN
ANNUITY CONTRACT UNDER WHICH THE ANNUITY WAS PAYABLE DURING HIS LIFE
AND THEN TO HIS SPOUSE DURING HER LIFE IF SHE SURVIVED HIM.  THE VALUE
OF THE INTEREST OF THE DECEDENT'S SURVIVING SPOUSE IN SUCH CONTRACT AT
THE DEATH OF THE DECEDENT'S SURVIVING SPOUSE IN SUCH CONTRACT AT THE
DEATH OF THE DECEDENT IS INCLUDED IN DETERMINING THE VALUE OF HIS GROSS
ESTATE.  A MARITAL DEDUCTION IS ALLOWED WITH RESPECT TO THE VALUE OF
SUCH INTEREST SO PASSING TO THE DECEDENT'S SURVIVING SPOUSE INASMUCH AS
NO OTHER PERSON HAS AN INTEREST IN THE CONTRACT.  IF UPON THE DEATH OF
THE SURVIVING SPOUSE THE ANNUITY PAYMENTS WERE TO CONTINUE FOR A TERM
TO HER ESTATE, OR THE UNDISTRIBUTED PORTION THEREOF WAS TO BE PAID TO
HER ESTATE, THE DEDUCTION IS NEVERTHELESS ALLOWABLE WITH RESPECT TO
SUCH ENTIRE INTEREST.  IF, HOWEVER, UPON THE DEATH OF THE SURVIVING
SPOUSE, THE PAYMENTS ARE TO CONTINUE TO ANOTHER PERSON (NOT THROUGH HER
ESTATE) OR THE UNDISTRIBUTED FUND IS TO BE PAID TO SUCH OTHER PERSON,
NO MARITAL DEDUCTION IS ALLOWABLE INASMUCH AS AN INTEREST PASSED FROM
THE DECEDENT TO SUCH OTHER PERSON."  S. REP. NO. 1013, PART 2, 80TH
CONG., 2D SESS., PP. 12-13. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE CLARK AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

THE DECEDENT HAD TWO LIFE INSURANCE POLICIES IN TWO SEPARATE
COMPANIES; AND EACH PROVIDED FOR THE PAYMENT OF THE PROCEEDS IN 20
ANNUAL INSTALMENTS BY MONTHLY PAYMENTS TO DECEDENT'S WIFE, MARION E.
MEYER, IF LIVING, AND THEREAFTER DURING HER LIFETIME.  IF THE WIFE WAS
NOT LIVING AT DECEDENT'S DEATH, THE INSTALMENTS WERE TO BE PAID TO A
DAUGHTER.  IF THE WIFE DIED AFTER DECEDENT AND BEFORE PAYMENT IN FULL
OF THE INSTALMENTS, ANY REMAINING INSTALMENTS WERE TO BE PAYABLE TO THE
DAUGHTER.  IF THE WIFE LIVED BEYOND THE 20 YEARS, SHE WOULD BE ENTITLED
TO LIKE MONTHLY PAYMENTS FOR HER LIFE.  DECEDENT WAS SURVIVED BY HIS
WIFE AND DAUGHTER, THE WIFE BEING THEN 42 YEARS OLD. 

THE INSURANCE COMPANIES CALCULATED THE SUMS NECESSARY TO PROVIDE THE
DESIGNATED MONTHLY PAYMENTS FOR 20 YEARS:  $17,956.41 IN THE CASE OF
ONE POLICY AND $4,012.24 IN THE CASE OF THE OTHER.  THEY THEN COMPUTED
THE AMOUNT NECESSARY TO PROVIDE A MONTHLY INCOME TO THE WIFE IN THE
EVENT SHE LIVED BEYOND THE 20-YEAR PERIOD:  $7,231.09 FOR ONE POLICY;
$1,007.36 FOR THE OTHER. 

NEITHER OF THE POLICIES PROVIDED (AND DECEDENT DID NOT REQUEST) THAT
THERE BY ANY SEGREGATION OF THE PROCEEDS BETWEEN THE AMOUNTS COMPUTABLE
FOR THE TERM CERTAIN AND FOR FUNDING OF THE CONTINGENT LIFE ANNUITY. 
(FN1)  THE AMOUNTS REQUIRED TO PROVIDE MONTHLY PAYMENTS FOR 20 YEARS -
$17,956.41 AND $4,012.24 - WERE NOT CLAIMED AS MARITAL DEDUCTIONS. 
THIS CONTROVERSY CONCERNS ONLY THE AMOUNT NEEDED TO FUND THE CONTINGENT
LIFE ANNUITIES OF THE WIFE - $7,231.09 PLUS $1,007.36, OR $8,238.45,
WHICH THE EXECUTORS CLAIM AS A MARITAL DEDUCTION. 

CONCEDEDLY THE AMOUNT NECESSARY TO MAKE THE 20-YEAR PAYMENTS DOES NOT
QUALIFY AS A MARITAL DEDUCTION BECAUSE IT MAY "TERMINATE OR FAIL"
WITHIN THE MEANING OF THE CODE, (FN2) THE DAUGHTER BEING ENTITLED TO
ANY REMAINING PAYMENTS DURING THAT TERM SHOULD THE WIFE DIE BEFORE IT
TERMINATES.  THE DAUGHTER, HOWEVER, HAS NO INTEREST IN THE ANNUITIES
PAYABLE BEYOND THE 20-YEAR PERIOD.  AND IT SEEMS TO ME THAT THE WIFE'S
"INTEREST" IN THAT PART OF THE INSURANCE CONTRACTS DOES NOT "TERMINATE
OR FAIL" WITHIN THE MEANING OF SEC. 812(E)(1)(B).  (FN3)    IF THE
DECEDENT HAD TAKEN OUT ONE GROUP OF POLICIES TO PAY INSTALMENTS FOR 20
YEARS TO HIS WIFE OR, IF SHE DIED WITHIN THAT PERIOD, TO HIS DAUGHTER,
AND ANOTHER GROUP OF POLICIES TO PAY INSTALMENTS TO HIS WIFE FOR LIFE
IF SHE LIVED MORE THAN 20 YEARS, THE FORMER WOULD BE NONDEDUCTIBLE, BUT
THE LATTER WOULD QUALIFY FOR THE MARITAL DEDUCTION.  (FN4)  DOES THEN
THE CONTINUATION OF THE TWO TYPES OF INSURANCE IN ONE POLICY CHANGE THE
RESULT?  THE GOVERNMENT MAINTAINS THAT IT DOES BECAUSE IN ITS VIEW THE
ENTIRE INSURANCE PROCEEDS OF EACH POLICY ARE A SINGLE "PROPERTY" AS
THAT TERM IS USED IN THE STATUTE; AND THE COURT SO HOLDS.  YET, WITH
ALL DEFERENCE, THAT CONCLUSION IS WIDE OF THE MARK.    THE SENATE
REPORT STATES THAT TERMINABLE INTERESTS INCLUDE ALL INTERESTS THAT ARE
SUBJECT TO CONTINGENCIES AND CONDITIONS.  (FN5)  YET THESE
CONTINGENCIES AND CONDITIONS ARE NOT ALL-INCLUSIVE.  THEY DO NOT
INCLUDE THE DEATH OF THE TRANSFEREE.  AND, AS I SHALL SHOW,
CONTINGENCIES OF THE KIND WE HAVE HERE ARE NOT INCLUDED. 

THE COURT, WITH ALL DEFERENCE, ERRS IN MAKING ITS DECISION TURN ON
WHETHER THE WIFE'S INTEREST AFTER THE 20-YEAR TERM IS A SEPARATE
"PROPERTY" WITHIN THE MEANING OF THE STATUTE.  THE RULING OF THE COURT
IS ON A STATUTORY PROVISION THAT DOES NOT EXIST.  UNDER THE STATUTE THE
QUESTION IS NOT WHETHER "PROPERTY" IS TERMINABLE; IT IS WHETHER AN
"INTEREST" IS TERMINABLE.  THE STATUTE INDEED DRAWS A MARKED
DISTINCTION BETWEEN "PROPERTY" AND "INTEREST."  (FN6)  SECTION
812(E)(1)(A) SPEAKS NOT OF "PROPERTY," BUT OF ANY "INTEREST" IN
PROPERTY.  SECTION 812(E)(1)(B) SPEAKS ONLY OF AN "INTEREST PASSING TO
THE SURVIVING SPOUSE" THAT WILL "TERMINATE OR FAIL."  THE STATUTE AT
THESE POINTS IS CONCERNED WITH "INTEREST" IN PROPERTY - NOT WITH
"PROPERTY."  YET THE COURT, DISREGARDING THE STATUTORY SCHEME, LOOKS
ONLY TO "PROPERTY" AND FINDING BUT ONE INSURANCE POLICY DENIES THE
DEDUCTION. 

PLAINLY THERE MAY BE MORE THAN ONE "INTEREST" IN A SINGLE
"PROPERTY."  A DEDUCTION IS NOT DENIED MERELY BECAUSE THE SURVIVING
SPOUSE AND SOMEONE ELSE EACH HAVE AN "INTEREST" IN THE SAME
"PROPERTY."   S. REP. NO. 1013, 80TH CONG., 2D SESS., PT. 2, P. 8.  THE
SENATE GAVE SEVERAL EXAMPLES:  "  ...  IF THE DECEDENT BY HIS WILL
DEVISES BLACKACRE TO HIS WIFE AND SON AS TENANTS IN COMMON, THE MARITAL
DEDUCTION IS ALLOWED, SINCE THE SURVIVING SPOUSE'S INTEREST IS NOT A
TERMINABLE INTEREST."  (FN7) 

THERE SEEMS TO ME TO BE A LIKE SEPARATION OF INTERESTS IN THE PRESENT
CASE.  THESE INSURANCE POLICIES CREATED, OF COURSE, NO FUND OR RES.
THE SUM OF $21,968.65 REPRESENTING THE WIFE'S TERMINABLE INTEREST AND
THE $8,238.45 REPRESENTING HER OTHER INTEREST WERE, OF COURSE, NO MORE
SEGREGATED IN THE INSURANCE COMPANIES' ASSETS THAN A CUSTOMER'S
CHECKING ACCOUNT IS SEGREGATED IN A COMMERCIAL BANK.  YET THAT SEEMS
IMMATERIAL.  EACH REPRESENTED A CHOSE IN ACTION.  THE WIFE OR DAUGHTER,
AS THE CASE MIGHT BE, COULD SUE FOR THE ONE DURING THE 20-YEAR PERIOD. 
ONLY THE WIFE COULD ENFORCE THE CLAIM HERE IN QUESTION. 

THAT THE PROCEEDS OF ONE LIFE INSURANCE POLICY MAY CREATE TWO OR MORE
"INTERESTS" FOR PURPOSES OF THE ESTATE TAX IS IMPLICIT IN THE SENATE
REPORT.  THUS ONE EXAMPLE OF A MARITAL DEDUCTION THAT IS GIVEN IS AN
ANNUITY PAYABLE TO THE DECEDENT DURING HIS LIFE AND TO HIS SPOUSE
DURING HER LIFE IF SHE SURVIVED HIM. 

"THE DECEDENT DURING HIS LIFETIME PURCHASED AN ANNUITY CONTRACT UNDER
WHICH THE ANNUITY WAS PAYABLE DURING HIS LIFE AND THEN TO HIS SPOUSE
DURING HER LIFE IF SHE SURVIVED HIM.  THE VALUE OF THE INTEREST OF THE
DECEDENT'S SURVIVING SPOUSE IN SUCH CONTRACT AT THE DEATH OF THE
DECEDENT IS INCLUDED IN DETERMINING THE VALUE OF HIS GROSS ESTATE.  A
MARITAL DEDUCTION IS ALLOWED WITH RESPECT TO THE VALUE OF SUCH INTEREST
SO PASSING TO THE DECEDENT'S SURVIVING SPOUSE INASMUCH AS NO OTHER
PERSON HAS AN INTEREST IN THE CONTRACT.  IF UPON THE DEATH OF THE
SURVIVING SPOUSE THE ANNUITY PAYMENTS WERE TO CONTINUE FOR A TERM TO
HER ESTATE, OR THE UNDISTRIBUTED PORTION THEREOF WAS TO BE PAID TO HER
ESTATE, THE DEDUCTION IS NEVERTHELESS ALLOWABLE WITH RESPECT TO SUCH
ENTIRE INTEREST.  IF, HOWEVER, UPON THE DEATH OF THE SURVIVING SPOUSE,
THE PAYMENTS ARE TO CONTINUE TO ANOTHER PERSON (NOT THROUGH HER ESTATE)
OR THE UNDISTRIBUTED FUND IS TO BE PAID TO SUCH OTHER PERSON, NO
MARITAL DEDUCTION IS ALLOWABLE INASMUCH AS AN INTEREST PASSED FROM THE
DECEDENT TO SUCH OTHER PERSON."  ID., PP. 12-13. 

THE LAST SENTENCE OF THE FOREGOING QUOTATION, ON WHICH THE COURT
RELIES, DESCRIBES WITH ACCURACY THE TERMINABLE "INTEREST" OF THE WIFE
IN THAT PART OF THE ANNUITY PAYABLE DURING THE 20-YEAR PERIOD AFTER THE
DEATH OF THE DECEDENT.  IT HAS NO RELEVANCY TO THE "INTEREST" WITH
WHICH WE ARE HERE CONCERNED, VIZ., THE INSTALMENTS PAYABLE AFTER THAT
20-YEAR PERIOD. 

MY CONCLUSION IS THAT WHERE THE "INTEREST" THAT ACCRUES TO THE
SURVIVING SPOUSE IS, AS HERE, SHARED WITH NO ONE ELSE AND IS SUBJECT TO
NO TERMINATION EXCEPT HER OWN DEATH, IT QUALIFIES FOR A MARITAL
DEDUCTION UNDER THIS STATUTE, EVEN THOUGH ANOTHER "INTEREST" OF HERS IN
THE SAME ANNUITY CONTRACT WOULD NOT QUALIFY. 

FN1  IT WAS SAID, HOWEVER, ON ORAL ARGUMENT THE INSURANCE COMPANIES
MAINTAINED FOR THEIR OWN RECORDS SEPARATE ACCOUNTS AS TO THE 20-YEAR
MONTHLY INCOME PROVISIONS AND THE CONTINGENT LIFE ANNUITY OF THE WIFE,
WITHOUT ANY SEGREGATION OF FUNDS. 

FN2  SECTION 812(E), I.R.C., 1939, AS ADDED BY REVENUE ACT OF 1948,
SEC. 361, 62 STAT. 110, 117, PROVIDES IN RELEVANT PART: 

"(1)  ALLOWANCE OF MARITAL DEDUCTION. 

"(A)  IN GENERAL.  - AN AMOUNT EQUAL TO THE VALUE OF ANY INTEREST IN
PROPERTY WHICH PASSES OR HAS PASSED FROM THE DECEDENT TO HIS SURVIVING
SPOUSE, BUT ONLY TO THE EXTENT THAT SUCH INTEREST IS INCLUDED IN
DETERMINING THE VALUE OF THE GROSS ESTATE. 

"(B)  LIFE ESTATE OR OTHER TERMINABLE INTEREST.  - WHERE, UPON THE
LAPSE OF TIME, UPON THE OCCURRENCE OF AN EVENT OR CONTINGENCY, OR UPON
THE FAILURE OF AN EVENT OR CONTINGENCY TO OCCUR, SUCH INTEREST PASSING
TO THE SURVIVING SPOUSE WILL TERMINATE OR FAIL, NO DEDUCTION SHALL BE
ALLOWED WITH RESPECT TO SUCH INTEREST: 

"(I)  IF AN INTEREST IN SUCH PROPERTY PASSES OR HAS PASSED (FOR LESS
THAN AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH) FROM
THE DECEDENT TO ANY PERSON OTHER THAN SUCH SURVIVING SPOUSE (OR THE
ESTATE OF SUCH SPOUSE); AND: 

"(II)  IF BY REASON OF SUCH PASSING SUCH PERSON (OR HIS HEIRS OR
ASSIGNS) MAY POSSESS OR ENJOY ANY PART OF SUCH PROPERTY AFTER SUCH
TERMINATION OR FAILURE OF THE INTEREST SO PASSING TO THE SURVIVING
SPOUSE; ...  ." 

FN3  SEE NOTE 2, SUPRA. 

FN4  THE COURT OF APPEALS IN IN RE REILLY'S ESTATE, SUPRA, CORRECTLY
NOTED THAT THE PURPOSE OF THE MARITAL DEDUCTION UNDER THIS ACT WAS "TO
MAKE MORE NEARLY UNIFORM THE TAX TREATMENT OF MARRIED PERSONS IN
COMMUNITY PROPERTY AND NON-COMMUNITY PROPERTY STATES."  ID., AT 799. 
THE ASSETS NOT TAXABLE IN THE ESTATE OF THE FIRST SPOUSE TO DIE MAY BE
TAXED AT THE DEATH OF THE SURVIVOR.  IN OTHER WORDS, THE PROPERTY IN
THE MARITAL COMMUNITY IS SUBJECT TO THE TAX ONLY ONCE IN THE ESTATE OF
EITHER. 

FN5  S. REP. NO. 1013, 80TH CONG., 2D SESS., PT. 2, P. 7. 

FN6  "THE TERMS 'INTEREST' AND 'PROPERTY,' AS USED IN SECTION 812(E)
HAVE SEPARATE AND DISTINCT MEANINGS.  THE TERM 'PROPERTY' IS USED IN A
COMPREHENSIVE SENSE AND INCLUDES ALL OBJECTS OR RIGHTS WHICH ARE
SUSCEPTIBLE OF OWNERSHIP.  THE TERM 'INTEREST' REFERS TO THE EXTENT OF
OWNERSHIP, THAT IS, TO THE ESTATE OR THE QUALITY AND QUANTUM OF
OWNERSHIP BY THE SURVIVING SPOUSE OR OTHER PERSON, OF PARTICULAR
PROPERTY."  S. REP., SUPRA, PT. 2, P. 4. 

FN7  ID., AT 8. 
..END :

















WATERMAN CO. V. DUGAN & MCNAMARA 364 U.S. 421 


NO. 35.  ARGUED OCTOBER 20, 1960 - DECIDED NOVEMBER 21, 1960 - 272 F.2D
823, REVERSED. 


A LONGSHOREMAN EMPLOYED BY RESPONDENT, A STEVEDORING CONTRACTOR
ENGAGED BY A CONSIGNEE, SUED A SHIPOWNER FOR PERSONAL INJURIES
SUSTAINED ABOARD A SHIP WHILE HELPING TO UNLOAD ITS CARGO.  THE
SHIPOWNER SETTLED THE CLAIM AND SOUGHT TO RECOVER FROM RESPONDENT ON
THE GROUND THAT THE LONGSHOREMAN'S INJURIES RESULTED FROM RESPONDENT'S
FAILURE TO PERFORM ITS WORK IN A WORKMANLIKE MANNER.  HELD:  RESPONDENT
WAS LIABLE TO THE SHIPOWNER, EVEN THOUGH THERE WAS NO PRIVITY OF
CONTRACT BETWEEN RESPONDENT AND THE SHIPOWNER AND REGARDLESS OF WHETHER
THE LONGSHOREMAN'S ORIGINAL CLAIM WAS ASSERTED IN AN IN REM OR AN IN
PERSONAM PROCEEDING, SINCE RESPONDENT'S WARRANTY OF WORKMANLIKE SERVICE
ABOARD THE SHIP WAS FOR THE BENEFIT OF THE SHIP AND ITS OWNER AS WELL
AS OF RESPONDENT'S EMPLOYER.  CRUMADY V. THE J.H. FISSER, 358 U.S.
423.  PP. 421-425. 

WATERMAN STEAMSHIP CORP. V. DUGAN & MCNAMARA, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER IS THE OWNER OF THE VESSEL S.S. AFOUNDRIA.  THE
RESPONDENT IS A STEVEDORING COMPANY.  A LONGSHOREMAN EMPLOYED BY THE
RESPONDENT WAS INJURED ABOARD THE AFOUNDRIA WHILE ENGAGED WITH OTHER
EMPLOYEES OF THE RESPONDENT IN UNLOADING THE SHIP AT THE PORT OF
PHILADELPHIA.  THE CARGO CONSISTED OF BAGGED SUGAR.  THE LONGSHOREMAN
WAS WORKING IN THE HOLD, AND HIS INJURIES RESULTED FROM THE COLLAPSE OF
A VERTICAL COLUMN OF HUNDRED-POUND BAGS WHICH THE UNLOADING OPERATIONS
HAD LEFT WITHOUT LATERAL SUPPORT. 

HE SUED THE PETITIONER IN THE DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA TO RECOVER FOR HIS INJURIES.  THE PETITIONER SETTLED
THE CLAIM AND, BY WAY OF A THIRD-PARTY COMPLAINT, SOUGHT TO RECOVER
FROM THE RESPONDENT THE AMOUNT PAID IN SATISFACTION OF THE
LONGSHOREMAN'S CLAIM.  THE THIRD-PARTY COMPLAINT ALLEGED THAT IMPROPER
STOWAGE OF THE CARGO (FN1) HAD CREATED AN UNSEAWORTHY CONDITION IN THE
SHIP'S HOLD WHICH HAD IMPOSED ABSOLUTE LIABILITY UPON THE PETITIONER AS
SHIPOWNER FOR THE LONGSHOREMAN'S INJURIES, BUT THAT "THE DIRECT,
PROXIMATE, ACTIVE AND SUBSTANTIAL CAUSE OF THE ACCIDENT" HAD BEEN THE
NEGLIGENCE OF THE RESPONDENT, WHO, BY "FAILING TO PERFORM THE
CONTRACTED STEVEDORING SERVICES IN A SAFE, PROPER, CUSTOMARY, CAREFUL
AND WORKMANLIKE MANNER," HAD BROUGHT THE EXISTING UNSEAWORTHY CONDITION
INTO PLAY. 

AS AN AFFIRMATIVE DEFENSE THE RESPONDENT STEVEDORE ALLEGED THAT THERE
HAD BEEN NO DIRECT CONTRACTUAL RELATIONSHIP BETWEEN IT AND THE
PETITIONER COVERING THE STEVEDORING SERVICES RENDERED THE AFOUNDRIA IN
PHILADELPHIA.  AT THE TRIAL THE PARTIES STIPULATED THAT THIS ALLEGATION
WAS CORRECT, IT APPEARING THAT THE CONSIGNEE OF THE CARGO, NOT THE
PETITIONER, HAD ACTUALLY ENGAGED THE RESPONDENT TO UNLOAD THE SHIP. 
THE DISTRICT COURT DIRECTED A VERDICT FOR THE RESPONDENT, HOLDING THAT
A SHIPOWNER HAS NO RIGHT OF INDEMNITY AGAINST A STEVEDORE UNDER THE
CIRCUMSTANCES ALLEGED IN THE ABSENCE OF A DIRECT CONTRACTUAL
RELATIONSHIP BETWEEN THEM.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT
AFFIRMED IN AN EN BANC DECISION, THREE JUDGES DISSENTING.  (FN2)
CERTIORARI WAS GRANTED TO CONSIDER WHETHER IN A SITUATION SUCH AS THIS
THE ABSENCE OF A CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES IS FATAL
TO THE INDEMNITY CLAIM.  362 U.S. 926. 

IN RYAN CO. V. PAN-ATLANTIC CORP., 350 U.S. 124, IT WAS ESTABLISHED
THAT A STEVEDORING CONTRACTOR WHO ENTERS INTO A SERVICE AGREEMENT WITH
A SHIPOWNER IS LIABLE TO INDEMNIFY THE OWNER FOR DAMAGES SUSTAINED AS A
RESULT OF THE STEVEDORE'S BREACH OF HIS WARRANTY TO PERFORM THE
OBLIGATIONS OF THE CONTRACT WITH REASONABLE SAFETY.  THIS WARRANTY OF
WORKMANLIKE SERVICE EXTENDS TO THE HANDLING OF CARGO, AS IN RYAN, AS
WELL AS TO THE USE OF EQUIPMENT INCIDENTAL TO CARGO HANDLING, AS IN
WEYERHAEUSER S.S. CO. V. NACIREMA CO., 355 U.S. 563.  THE WARRANTY MAY
BE BREACHED WHEN THE STEVEDORE'S NEGLIGENCE DOES NO MORE THAN CALL INTO
PLAY THE VESSEL'S UNSEAWORTHINESS.  CRUMADY V. THE J.H. FISSER, 358
U.S. 423, 429.  THE FACTUAL ALLEGATIONS OF THE THIRD-PARTY COMPLAINT IN
THE PRESENT CASE COMPREHEND THE LATTER SITUATION. 

IN THE RYAN AND WEYERHAEUSER CASES CONSIDERABLE EMPHASIS WAS PLACED
UPON THE DIRECT CONTRACTUAL RELATIONSHIP BETWEEN THE SHIPOWNER AND THE
STEVEDORE.  IF THOSE DECISIONS STOOD ALONE, IT MIGHT WELL BE THOUGHT AN
OPEN QUESTION WHETHER SUCH CONTRACTUAL PRIVITY IS ESSENTIAL TO SUPPORT
THE STEVEDORE'S DUTY TO INDEMNIFY.  BUT THE FACT IS THAT THIS BRIDGE
WAS CROSSED IN THE CRUMADY CASE.  THERE WE EXPLICITLY HELD THAT THE
STEVEDORE'S ASSUMPTION OF RESPONSIBILITY FOR THE SHIPOWNER'S DAMAGES
RESULTING FROM UNSAFE AND IMPROPER PERFORMANCE OF THE STEVEDORING
SERVICES WAS UNAFFECTED BY THE FACT THAT THE SHIPOWNER WAS NOT THE
PARTY WHO HAD HIRED THE STEVEDORE.  THAT CASE WAS DECIDED UPON THE
FACTUAL PREMISES THAT THE STEVEDORE HAD BEEN ENGAGED NOT BY THE
SHIPOWNER, BUT BY THE PARTY OPERATING THE SHIP UNDER A CHARTER.  THE
COURT'S LANGUAGE WAS UNAMBIGUOUS: 

"WE THINK THIS CASE IS GOVERNED BY THE PRINCIPLE ANNOUNCED IN THE
RYAN CASE.  THE WARRANTY WHICH A STEVEDORE OWES WHEN HE GOES ABOARD A
VESSEL TO PERFORM SERVICES IS PLAINLY FOR THE BENEFIT OF THE VESSEL
WHETHER THE VESSEL'S OWNERS ARE PARTIES TO THE CONTRACT OR NOT.  THAT
IS ENOUGH TO BRING THE VESSEL INTO THE ZONE OF MODERN LAW THAT
RECOGNIZES RIGHTS IN THIRD-PARTY BENEFICIARIES.  RESTATEMENT, LAW OF
CONTRACTS, SEC. 133.  MOREOVER, AS WE SAID IN THE RYAN CASE,
'COMPETENCY AND SAFETY OF STOWAGE ARE INESCAPABLE ELEMENTS OF THE
SERVICE UNDERTAKEN.'  350 U.S., AT 133.  THEY ARE PART OF THE
STEVEDORE'S 'WARRANTY OF WORKMANLIKE SERVICE THAT IS COMPARABLE TO A
MANUFACTURER'S WARRANTY OF THE SOUNDNESS OF ITS MANUFACTURED PRODUCT.' 
ID., AT 133-134.  SEE MACPHERSON V. BUICK MOTOR CO., 217 N.Y. 382, 111
N.E. 1050. 

"WE CONCLUDE THAT SINCE THE NEGLIGENCE OF THE STEVEDORES, WHICH
BROUGHT THE UNSEAWORTHINESS OF THE VESSEL INTO PLAY, AMOUNTED TO A
BREACH OF THE WARRANTY OF WORKMANLIKE SERVICE, THE VESSEL MAY RECOVER
OVER."  358 U.S. 428-429. 

THIS REASONING IS APPLICABLE HERE.  WE CAN PERCEIVE NO DIFFERENCE IN
PRINCIPLE, SO FAR AS THE STEVEDORE'S DUTY TO INDEMNIFY THE SHIPOWNER IS
CONCERNED, WHETHER THE STEVEDORE IS ENGAGED BY AN OPERATOR TO WHOM THE
OWNER HAS CHARTERED THE VESSEL OR BY THE CONSIGNEE OF THE CARGO.  NOR
CAN THERE BE ANY SIGNIFICANT DISTINCTION IN THIS RESPECT WHETHER THE
LONGSHOREMAN'S ORIGINAL CLAIM WAS ASSERTED IN AN IN REM OR AN IN
PERSONAM PROCEEDING.  IN THE RYAN AND WEYERHAEUSER CASES IN PERSONAM
LIABILITY WAS ASSERTED.  IN THE CRUMADY CASE THE INJURED STEVEDORE HAD
BROUGHT AN IN REM PROCEEDING.   THE SHIP AND ITS OWNER ARE EQUALLY
LIABLE FOR A BREACH BY THE CONTRACTOR OF THE OWNER'S NONDELEGABLE DUTY
TO PROVIDE A SEAWORTHY VESSEL.  THE OSCEOLA, 189 U.S. 158, 175; CF.
CONTINENTAL GRAIN CO. V. BARGE FBL-585, 364 U.S. 19.  THE OWNER, NO
LESS THAN THE SHIP, IS THE BENEFICIARY OF THE STEVEDORE'S WARRANTY OF
WORKMANLIKE SERVICE. 

ACCORDINGLY THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  THE CARGO HAD BEEN LOADED IN THE PHILIPPINES SEVERAL WEEKS
EARLIER BY A STEVEDORE UNRELATED TO THE PARTIES TO THE PRESENT
PROCEEDING. 

FN2  272 F.2D 823 (ON REHEARING). 
..END :





POLITES V. UNITED STATES 364 U.S. 426 


NO. 25.  ARGUED OCTOBER 18, 1960 - DECIDED NOVEMBER 21, 1960 - 272 F.2D
709, AFFIRMED. 


PETITIONER'S CITIZENSHIP WAS REVOKED IN A PROCEEDING UNDER SEC. 338(A)
OF THE NATIONALITY ACT OF 1940.  THE DISTRICT COURT FOUND THAT, WITHIN
TEN YEARS PRECEDING HIS PETITION FOR NATURALIZATION, HE HAD BEEN A
MEMBER OF THE COMMUNIST PARTY, THAT THE PARTY WAS AN ORGANIZATION WHICH
WAS THEN ADVOCATING THE FORCIBLE OVERTHROW OF THE GOVERNMENT, AND THAT,
THEREFORE, PETITIONER WAS INELIGIBLE FOR CITIZENSHIP UNDER SEC. 305. 
PURSUANT TO A STIPULATION OF PETITIONER'S COUNSEL, HIS APPEAL WAS
DISMISSED WITH PREJUDICE.  FOUR YEARS LATER PETITIONER MOVED UNDER RULE
60(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE TO VACATE THE JUDGMENT,
ON THE GROUND THAT IT WAS VOIDABLE UNDER THIS COURT'S SUBSEQUENT
DECISIONS IN NOWAK V. UNITED STATES, 356 U.S. 660, AND MAISENBERG V.
UNITED STATES, 356 U.S. 670.  HELD:  REGARDLESS OF WHETHER RELIEF UNDER
RULE 60(B) IS AVAILABLE TO PETITIONER IN THE CIRCUMSTANCES, THOSE
DECISIONS WERE NOT EFFECTIVE TO ALTER THE LAW CONTROLLING PETITIONER'S
CASE.  PP. 426-437. 

POLITES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS A NATIVE OF GREECE WHO CAME TO THIS COUNTRY IN 1916. 
IN 1942 HE BECAME A NATURALIZED CITIZEN BY DECREE OF THE UNITED STATES
DISTRICT COURT AT DETROIT, UNDER THE PROVISIONS OF THE NATIONALITY ACT
OF 1940.  (FN1)  IN 1952 THE UNITED STATES BROUGHT PROCEEDINGS UNDER
SEC. 338(A) OF THE 1940 ACT TO REVOKE HIS CITIZENSHIP.  (FN2)  THESE
PROCEEDINGS CULMINATED IN A JUDGMENT OF DENATURALIZATION, 127 F. SUPP.
768.  AN APPEAL FROM THAT JUDGMENT WAS DOCKETED IN THE COURT OF APPEALS
FOR THE SIXTH CIRCUIT.  SUBSEQUENTLY, UNDER CIRCUMSTANCES TO BE
RELATED, COUNSEL FOR THE PETITIONER STIPULATED TO DISMISSAL OF THE
APPEAL WITH PREJUDICE, AND THE APPEAL WAS DISMISSED IN ACCORDANCE WITH
THE STIPULATION.  FOUR YEARS LATER THE PETITIONER MOVED TO VACATE THE
JUDGMENT OF DENATURALIZATION, RELYING UPON RULE 60(B), FED.  RULES CIV.
PROC. (FN3)  THE DISTRICT COURT DENIED THE MOTION, 24 F.R.D. 401, AND
THE COURT OF APPEALS AFFIRMED, 272 F.2D 709.  CERTIORARI WAS GRANTED TO
CONSIDER THE AVAILABILITY OF RULE 60(B) RELIEF IN THE CIRCUMSTANCES
HERE PRESENTED, 361 U.S. 958. 

SHOULD BE ELIGIBLE FOR NATURALIZATION WHO AT ANY TIME WITHIN TEN YEARS
PRECEDING HIS APPLICATION HAD BEEN A MEMBER OF ANY ORGANIZATION THAT
ADVOCATED THE OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE
UNITED STATES.  (FN4)  THE GOVERNMENT'S COMPLAINT IN THE 1952
DENATURALIZATION PROCEEDINGS CHARGED THAT THE PETITIONER'S CITIZENSHIP
HAD BEEN ILLEGALLY PROCURED BECAUSE WITHIN TEN YEARS IMMEDIATELY
PRECEDING HIS APPLICATION FOR NATURALIZATION HE HAD BEEN A MEMBER OF
THE COMMUNIST PARTY OF THE UNITED STATES, AN ORGANIZATION WHICH, IT WAS
ALLEGED, ADVISED, ADVOCATED, OR TAUGHT THE OVERTHROW BY FORCE AND
VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES.  (FN5) 

AT THE DENATURALIZATION HEARING THE PETITIONER, WHO WAS REPRESENTED
BY COUNSEL, TESTIFIED THAT HE HAD BEEN A MEMBER OF THE COMMUNIST PARTY
OF THE UNITED STATES FROM "AROUND" 1931 UNTIL 1938.  HE STATED THAT HE
HAD ATTENDED CLOSED PARTY MEETINGS ABOUT ONCE A MONTH, THAT HE HAD BEEN
SECRETARY OF THE "GREEK FRACTION" OF THE PARTY IN DETROIT, AND THAT HE
HAD LEFT THE PARTY IN 1938 ONLY BECAUSE OF A DIRECTIVE THAT ALL ALIENS
RESIGN FROM THE PARTY AT THAT TIME.  OTHER WITNESSES DESCRIBED THE
PETITIONER AS A "HIGH FUNCTIONARY" OF THE PARTY, WHO AT CLOSED MEETINGS
HAD ADVOCATED THE OVERTHROW OF EXISTING GOVERNMENT BY FORCE AND
VIOLENCE.  (FN6) 

BASED UPON THIS AND OTHER TESTIMONY, THE DISTRICT COURT FOUND THAT
THE GOVERNMENT HAD PROVED BY CLEAR, UNEQUIVOCAL, AND CONVINCING
EVIDENCE THAT THE PETITIONER HAD BEEN A MEMBER OF THE COMMUNIST PARTY
OF THE UNITED STATES WITHIN THE STATUTORY PERIOD, AND THAT THE PARTY
WAS AN ORGANIZATION WHICH "WAS THEN ADVISING, ADVOCATING OR TEACHING
FORCIBLE OR VIOLENT OVERTHROW OF THIS GOVERNMENT."  127 F. SUPP., AT
770.  ACCORDINGLY, THE COURT HELD THAT THE PETITIONER HAD ILLEGALLY
PROCURED HIS CITIZENSHIP, BECAUSE HE HAD NOT BEEN ELIGIBLE TO BECOME A
CITIZEN AT THE TIME HIS CERTIFICATE OF NATURALIZATION WAS ISSUED. 
(FN7)  A JUDGMENT CANCELLING THE PETITIONER'S CITIZENSHIP WAS ENTERED,
127 F. SUPP. 768, 770-772.  (FN8) 

FROM THIS JUDGMENT THE PETITIONER PROMPTLY APPEALED TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.  AT THE TIME THERE WERE
PENDING IN THAT COURT APPEALS FROM THREE OTHER DENATURALIZATION
JUDGMENTS BY THE SAME DISTRICT COURT.  UNITED STATES V. SWEET, 106 F.
SUPP. 634; UNITED STATES V. CHOMIAK, 108 F. SUPP. 527; AND UNITED
STATES V. CHARNOWOLA, 109 F. SUPP. 810.  PETITIONER'S COUNSEL APPEARED
AND ARGUED FOR THE APPELLANTS IN EACH OF THOSE THREE CASES.  BEFORE THE
PETITIONER'S BRIEF WAS DUE, THE COURT OF APPEALS AFFIRMED THE JUDGMENTS
IN ALL THREE OF THEM, 211 F.2D 118.  THE PETITIONER THEREAFTER OBTAINED
AN EXTENSION OF TIME FOR FILING BRIEFS ON THE APPEAL OF HIS CASE UNTIL
THIRTY DAYS AFTER DISPOSITION BY THIS COURT OF PETITIONS FOR CERTIORARI
FILED IN THE OTHER THREE CASES.  WHEN THOSE PETITIONS FOR CERTIORARI
WERE DENIED, 348 U.S. 817, THE PETITIONER BY HIS COUNSEL STIPULATED IN
THE COURT OF APPEALS THAT HIS APPEAL SHOULD BE DISMISSED WITH
PREJUDICE, AND THE APPEAL WAS DISMISSED ON NOVEMBER 10, 1954. 

ON AUGUST 6, 1958, THE PETITIONER FILED HIS MOTION UNDER RULE
60(B)(5) AND (6) TO SET ASIDE THE 1953 DENATURALIZATION DECREE.  THE
GROUND FOR THE MOTION, SUPPORTED BY AN AFFIDAVIT OF COUNSEL, WAS THAT
IN THE LIGHT OF THIS COURT'S OPINIONS IN TWO CASES WHICH HAD RECENTLY
BEEN DECIDED, NOWAK V. UNITED STATES, 356 U.S. 660, AND MAISENBERG V.
UNITED STATES, 356 U.S. 670, "IT NOW APPEARS THAT THE  ...  JUDGMENT OF
CANCELLATION IS VOIDABLE" AND "THAT IT IS NO LONGER EQUITABLE THAT SAID
JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION."  IN DENYING THE MOTION
THE DISTRICT COURT HELD THAT THE NOWAK AND MAISENBERG DECISIONS "DO NOT
AS CONTENDED BY POLITES CLEARLY CONTROL THE INSTANT CASE WARRANTING
RELIEF FROM JUDGMENT," AND THAT, IN ANY EVENT, THE DOCTRINE OF
ACKERMANN V. UNITED STATES, 340 U.S. 193, PRECLUDES REOPENING A
JUDGMENT UNDER RULE 60(B) WHERE THE MOVANT HAS VOLUNTARILY ABANDONED
HIS APPEAL, AND THE ONLY GROUND FOR THE MOTION TO REOPEN IS AN ASSERTED
LATER CHANGE IN THE JUDICIAL VIEW OF APPLICABLE LAW.  24 F.R.D. 401. 
THE COURT OF APPEALS AFFIRMED "FOR THE REASONS SET FORTH" BY THE
DISTRICT COURT, 272 F.2D 709. 

IT IS THE CONTENTION OF THE GOVERNMENT THAT THE "INSTANT CASE IS
SQUARELY CONTROLLED BY THE DECISION OF THIS COURT IN ACKERMANN V.
UNITED STATES, 340 U.S. 193, THAT A FREELY MADE DECISION NOT TO APPEAL
A DENATURALIZATION JUDGMENT MAY NOT BE EXCUSED BY PERMITTING RECOURSE
TO RULE 60(B)(6) AS A SUBSTITUTE FOR APPEAL."  IN THAT CASE MR. AND
MRS. ACKERMANN AND A RELATIVE, KEILBAR, HAD BEEN DENATURALIZED AFTER A
JOINT HEARING.  KEILBAR APPEALED.  THE ACKERMANNS DID NOT.  ON APPEAL
THE JUDGMENT OF DENATURALIZATION AGAINST KEILBAR WAS REVERSED UPON A
STIPULATION BY THE GOVERNMENT THAT THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT IT.  KEILBAR V. UNITED STATES, 144 F.2D 866.  THE ACKERMANNS
THEREAFTER FILED A MOTION UNDER RULE 60(B) TO VACATE THE
DENATURALIZATION JUDGMENTS AGAINST THEM.  THEY ALLEGED THAT THEY HAD
FAILED TO APPEAL FROM THE JUDGMENTS BECAUSE OF FINANCIAL INABILITY AND
IN RELIANCE UPON THE ADVICE OF A GOVERNMENT OFFICIAL WHOM THEY TRUSTED,
THE OFFICIAL WHO WAS IN CHARGE OF THE DETENTION CAMP IN WHICH THEY HAD
BEEN PLACED FOLLOWING THEIR DENATURALIZATION.  AFTER REVIEWING THESE
ALLEGATIONS THE COURT HELD THAT THE DISTRICT COURT HAD BEEN CORRECT IN
DENYING THE MOTION TO REOPEN THE JUDGMENTS, HOLDING THAT "SUBSECTION 6
OF RULE 60(B) HAS NO APPLICATION TO THE SITUATION OF PETITIONER."  340
U.S., AT 202. 

WHAT THE COURT SAID IN ACKERMANN IS OF OBVIOUS RELEVANCE HERE: 

"PETITIONER MADE A CONSIDERED CHOICE NOT TO APPEAL, APPARENTLY
BECAUSE HE DID NOT FEEL THAT AN APPEAL WOULD PROVE TO BE WORTH WHAT HE
THOUGHT WAS A REQUIRED SACRIFICE OF HIS HOME.  HIS CHOICE WAS A RISK,
BUT CALCULATED AND DELIBERATE AND SUCH AS FOLLOWS A FREE CHOICE. 
PETITIONER CANNOT BE RELIEVED OF SUCH A CHOICE BECAUSE HINDSIGHT SEEMS
TO INDICATE TO HIM THAT HIS DECISION NOT TO APPEAL WAS PROBABLY WRONG,
CONSIDERING THE OUTCOME OF THE KEILBAR CASE.  THERE MUST BE AN END TO
LITIGATION SOMEDAY, AND FREE, CALCULATED, DELIBERATE CHOICES ARE NOT TO
BE RELIEVED FROM."  340 U.S., AT 198. 

IN THE PRESENT CASE IT IS NOT CLAIMED THAT THE DECISION NOT TO APPEAL
WAS ANYTHING BUT "FREE, CALCULATED, AND DELIBERATE."  INDEED, THERE IS
NOT EVEN AN INDICATION IN THIS CASE, AS THERE WAS IN ACKERMANN, THAT
THE CHOICE WAS INFLUENCED BY RELIANCE UPON THE ADVICE OF A GOVERNMENT
OFFICER.  THE ONLY CLAIM IS THAT UPON THE ADVICE OF THE PETITIONER'S
OWN COUNSEL THE APPEAL WAS ABANDONED BECAUSE THERE SEEMED AT THE TIME
SMALL LIKELIHOOD OF ITS SUCCESS, AND THAT SOME FOUR YEARS LATER THE
APPLICABLE LAW WAS "CLARIFIED" IN THE PETITIONER'S FAVOR. 

DESPITE THE RELEVANT AND PERSUASIVE FORCE OF ACKERMANN, HOWEVER, WE
NEED NOT GO SO FAR HERE AS TO DECIDE THAT WHEN AN APPEAL HAS BEEN
ABANDONED OR NOT TAKEN BECAUSE OF A CLEARLY APPLICABLE ADVERSE RULE OF
LAW, RELIEF UNDER RULE 60(B) IS INFLEXIBLY TO BE WITHHELD WHEN THERE
HAS LATER BEEN A CLEAR AND AUTHORITATIVE CHANGE IN GOVERNING LAW.  THE
FACT OF THE MATTER IS THAT THAT SITUATION IS NOT PRESENTED BY THIS
CASE.  WITHOUT ASSAYING BY HINDSIGHT HOW HOPELESS THE PROSPECTS OF THE
PETITIONER'S APPEAL MAY HAVE APPEARED AT THE TIME IT WAS ABANDONED,
(FN9) IT IS CLEAR THAT THE LATER DECISIONS OF THIS COURT UPON WHICH HIS
MOTION TO VACATE RELIED DID NOT IN FACT WORK THE CONTROLLING CHANGE IN
THE GOVERNING LAW WHICH HE ASSERTED.  THE DECISIONS IN QUESTION ARE
NOWAK V. UNITED STATES, 356 U.S. 660, AND MAISENBERG V. UNITED STATES,
356 U.S. 670. 

PETITIONER CONTENDS THAT THE NOWAK AND MAISENBERG DECISIONS REJECT
THE GROUNDS RELIED UPON BY THE DISTRICT COURT IN REVOKING PETITIONER'S
CITIZENSHIP IN 1953.  IN THE PETITIONER'S DENATURALIZATION PROCEEDING,
THE COURT HELD THAT A CHARGE OF ILLEGAL PROCUREMENT OF CITIZENSHIP
UNDER THE NATIONALITY ACT OF 1940 COULD BE SUSTAINED BY CLEAR,
UNEQUIVOCAL AND CONVINCING EVIDENCE THAT (A) PETITIONER HAD BEEN A
MEMBER OF THE COMMUNIST PARTY WITHIN TEN YEARS IMMEDIATELY PRECEDING
THE DAY HE FILED HIS CITIZENSHIP APPLICATION, AND (B) THE COMMUNIST
PARTY HAD ADVISED, ADVOCATED, OR TAUGHT OVERTHROW OF THE GOVERNMENT BY
FORCE OR VIOLENCE DURING THAT PERIOD.  PETITIONER CLAIMS THAT THIS
INTERPRETATION OF THE STATUTE IS ERRONEOUS BECAUSE IT FAILS TO TAKE
INTO ACCOUNT THE QUESTION OF THE PETITIONER'S KNOWLEDGE OF THE PARTY'S
ACTIVITIES.  IT WAS THE CLAIM OF THE PETITIONER'S MOTION THAT NOWAK AND
MAISENBERG ESTABLISH THAT "A CHARGE OF ILLEGAL PROCUREMENT OF
CITIZENSHIP BASED UPON ALLEGED MEMBERSHIP IN THE COMMUNIST PARTY,
CANNOT BE SUSTAINED WHERE THE EVIDENCE FAILS TO SHOW  ...  THAT THE
DEFENDANT WAS AWARE THAT THE ORGANIZATION WAS ENGAGED IN THE KIND OF
ILLEGAL ADVOCACY PROSCRIBED BY LAW DURING THE PERIOD OF HIS MEMBERSHIP
THEREIN."  BUT THE NOWAK AND MAISENBERG DECISIONS NEITHER SUPPORT NOR
OPPOSE THIS INTERPRETATION OF THE 1940 ACT.  THOSE CASES SIMPLY DO NOT
DEAL WITH THE QUESTION. 

IN NOWAK THE PETITIONER HAD ACQUIRED HIS CITIZENSHIP UNDER THE
NATIONALITY ACT OF 1906.  THAT STATUTE DID NOT SPECIFICALLY PROHIBIT
CITIZENSHIP TO A MEMBER OF AN ORGANIZATION WHICH ADVOCATED OVERTHROW OF
THE GOVERNMENT BY FORCE AND VIOLENCE.  IT DID REQUIRE AN ALIEN TO HAVE
BEEN "ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED
STATES" FOR AT LEAST FIVE YEARS PRECEDING HIS APPLICATION FOR
CITIZENSHIP.  (FN10)  IN ORDER TO SHOW THAT NOWAK HAD ILLEGALLY
PROCURED HIS CITIZENSHIP BECAUSE DURING THE FIVE YEARS PRECEDING HIS
NATURALIZATION HE HAD NOT BEEN "ATTACHED" TO CONSTITUTIONAL PRINCIPLES,
THE GOVERNMENT UNDERTOOK TO PROVE THAT HE HAD BEEN A MEMBER OF THE
COMMUNIST PARTY WITH KNOWLEDGE THAT THE PARTY ADVOCATED THE OVERTHROW
OF THE GOVERNMENT BY FORCE AND VIOLENCE.  THIS COURT FOUND THAT THE
RECORD CONTAINED ADEQUATE PROOF THAT NOWAK HAD BEEN A MEMBER OF THE
PARTY DURING THE PERTINENT FIVE-YEAR PERIOD, AND IT PROCEEDED ON THE
ASSUMPTION THAT THE EVIDENCE OF THE PARTY'S ILLEGAL ADVOCACY WAS
SUFFICIENT.  THE COURT HELD, HOWEVER, THAT THE GOVERNMENT HAD NOT
ESTABLISHED, UNDER THE STANDARD REQUIRED IN DENATURALIZATION CASES,
THAT NOWAK HAD KNOWN OF THE PARTY'S ADVOCACY OF FORCIBLE GOVERNMENTAL
OVERTHROW.  ACCORDINGLY, THE COURT CONCLUDED THAT THE GOVERNMENT HAD
FAILED TO PROVE NOWAK'S "STATE OF MIND," 356 U.S., AT 666, HIS LACK OF
"ATTACHMENT" TO CONSTITUTIONAL PRINCIPLES, BY THE CLEAR, UNEQUIVOCAL,
AND CONVINCING EVIDENCE WHICH IS REQUIRED.  CF. SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118.  MAISENBERG WAS DIFFERENT IN THAT THE ULTIMATE
ISSUE INVOLVED WAS WHETHER THE PETITIONER'S CITIZENSHIP HAD BEEN
OBTAINED "BY CONCEALMENT OF A MATERIAL FACT AND WILLFUL
MISREPRESENTATION."  (FN11)  356 U.S., AT 671.  BUT THERE, TOO, THE
COURT HELD THAT THE GOVERNMENT HAD FAILED TO PROVE THE PETITIONER'S
STATE OF MIND, HER LACK OF "ATTACHMENT" TO THE CONSTITUTIONAL
PRINCIPLES REQURIED BY THE 1906 ACT, BY ITS PROOF OF HER COMMUNIST
PARTY MEMBERSHIP AND OF THE PARTY'S ADVOCACY.  (FN12) 

IN THE PRESENT CASE, BY CONTRAST, THE DISTRICT COURT HELD THAT
DETERMINATION OF THE ISSUE OF ILLEGAL PROCUREMENT DID NOT INVOLVE AN
INQUIRY INTO THE PETITIONER'S STATE OF MIND.  UNLIKE NOWAK AND
MAISENBERG, THE PETITIONER WAS NATURALIZED UNDER THE NATIONALITY ACT OF
1940, WHICH WITHHELD THE RIGHT OF CITIZENSHIP TO ANY ALIEN WHO HAD BEEN
A MEMBER OF A PARTICULAR KIND OF ORGANIZATION DURING THE STATUTORY
PERIOD.  (FN13)  THE EVIDENCE THAT THE PETITIONER WAS A "MEMBER OF THE
PARTY" IN EVERY MEANINGFUL SENSE WAS ABUNDANTLY SHOWN.  CF. GALVAN V.
PRESS, 347 U.S. 522; ROWOLDT V. PERFETTO, 355 U.S. 115; NIUKKANEN V.
MCALEXANDER, 362 U.S. 390.  THE DISTRICT COURT FOUND THAT THE PROOF WAS
ALSO CLEAR, UNEQUIVOCAL, AND CONVINCING THAT THE ORGANIZATION TO WHICH
THE PETITIONER HAD BELONGED WAS IN THE CATEGORY PROSCRIBED BY THE 1940
ACT.  (FN14)  THOSE FINDINGS REMAIN COMPLETELY UNAFFECTED BY ANYTHING
THAT WAS DECIDED OR SAID IN EITHER NOWAK OR MAISENBERG.    AS THE
DISTRICT COURT VIEWED THE ISSUE OF ILLEGAL PROCUREMENT IN THIS CASE,
THERE WAS NO OCCASION, AS IN NOWAK AND MAISENBERG, TO ESTABLISH BY
INFERENCE OR IMPUTATION THE PETITIONER'S PERSONAL BELIEFS, HIS
"ATTACHMENT" OR LACK OF IT.  THE COURT WAS CONCERNED ONLY WITH
OBJECTIVE FACTS - THE PETITIONER'S MEMBERSHIP AND THE PARTY'S PURPOSE. 
UPON THE BASIS OF ITS FINDINGS AS TO THESE FACTUAL ISSUES, THE COURT
HELD THAT THE "GOVERNMENT MUST PREVAIL ON THE JURISDICTIONAL QUESTION
THAT DEFENDANT WAS NOT ELIGIBLE TO BECOME A CITIZEN EITHER WHEN HE
FILED HIS NATURALIZATION PETITION OR WHEN HE TOOK THE OATH  ...  ." 
127 F. SUPP., AT 772.  AS THE ISSUE WAS DETERMINED, THEREFORE, THE CASE
WAS CONSISTENT WITH MANY DECISIONS IN WHICH THIS COURT HAS RULED THAT A
CERTIFICATE OF CITIZENSHIP IS CANCELLABLE ON THE BASIS OF ILLEGAL
PROCUREMENT IF THERE HAS NOT BEEN STRICT COMPLIANCE WITH THE CONDITIONS
IMPOSED BY CONGRESS AS PREREQUISITES TO ACQUISITION OF CITIZENSHIP. 
SEE MANEY V. UNITED STATES, 278 U.S. 17; UNITED STATES V. NESS, 245
U.S. 319; UNITED STATES V. GINSBERG, 243 U.S. 472; CF. SCHNEIDERMAN V.
UNITED STATES, 320 U.S. 118, 163 (CONCURRING OPINION). 

THE VALIDITY OF THE DISTRICT COURT'S INTERPRETATION OF SEC. 305 IS
NOT BEFORE US; WE ARE NOT HERE DIRECTLY REVIEWING THE 1953 DECISION. 
WE HOLD ONLY THAT THE DECISIONS IN MAISENBERG AND NOWAK WERE NOT
EFFECTIVE TO ALTER THE LAW CONTROLLING THE PETITIONER'S CASE. 
AFFIRMED. 

FN1  54 STAT. 1137. 

FN2  SECTION 338(A) OF THE NATIONALITY ACT OF 1940, 54 STAT. 1158
1159, PROVIDED:  "IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT
ATTORNEYS FOR THE RESPECTIVE DISTRICTS, UPON AFFIDVAIT SHOWING GOOD
CAUSE THEREFOR, TO INSTITUTE PROCEEDINGS  ...  FOR THE PURPOSE OF
REVOKING AND SETTING ASIDE THE ORDER ADMITTING SUCH PERSON TO
CITIZENSHIP AND CANCELING THE CERTIFICATE OF NATURALIZATION ON THE
GROUND OF FRAUD OR ON THE GROUND THAT SUCH ORDER AND CERTIFICATE OF
NATURALIZATION WERE ILLEGALLY PROCURED." 

FN3  THE PROVISIONS OF RULE 60(B) UPON WHICH THE PETITIONER RELIED
ARE AS FOLLOWS:  "ON MOTION AND UPON SUCH TERMS AS ARE JUST, THE COURT
MAY RELIEVE A PARTY OR HIS LEGAL REPRESENTATIVE FROM A FINAL JUDGMENT,
ORDER, OR PROCEEDING FOR THE FOLLOWING REASONS:  ...  (5)  ...  IT IS
NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE
APPLICATION; OR (6) ANY OTHER REASON JUSTIFYING RELIEF FROM THE
OPERATION OF THE JUDGMENT." 

FN4  "NO PERSON SHALL HEREAFTER BE NATURALIZED AS A CITIZEN OF THE
UNITED STATES: 

     *  *         *         *         * 

"(B)  WHO BELIEVES IN, ADVISES, ADVOCATES, OR TEACHES, OR WHO IS A
MEMBER OF OR AFFILIATED WITH ANY ORGANIZATION, ASSOCIATION, SOCIETY, OR
GROUP THAT BELIEVES IN, ADVISES, ADVOCATES, OR TEACHES: 

"(1) THE OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE
UNITED STATES OR OF ALL FORMS OF LAW; ...  . 

     *         *         *         *         * 

"THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO ANY APPLICANT
FOR NATURALIZATION WHO AT ANY TIME WITHIN A PERIOD OF TEN YEARS
IMMEDIATELY PRECEDING THE FILING OF THE PETITION FOR NATURALIZATION IS,
OR HAS BEEN, FOUND TO BE WITHIN ANY OF THE CLAUSES ENUMERATED IN THIS
BE INCLUDED IN SUCH CLASSES."  54 STAT. 1141. 

FN5  THE COMPLAINT ALSO ALLEGED THAT THE PETITIONER HAD OBTAINED HIS
NATURALIZED CITIZENSHIP FRAUDULENTLY. 

FN6  THE FOLLOWING ARE ILLUSTRATIVE EXAMPLES OF SUCH TESTIMONY: 

"Q.  WHAT WAS HIS STATEMENT?  WHAT DID HE SAY? 

"A.  HE SAY THE WAY TO ORGANIZE, AGITATE - AGITATE THE WORKERS,
ORGANIZE THEM, IN ORDER TO FOLLOW UP WHEN THE TIME COMES TO OVERTHROW
THE GOVERNMENT BY FORCE AND VIOLENCE. 

     *         *         *         *         * 

"Q.  DID HE EVERY SAY IN YOUR PRESENCE THE METHODS THAT HE WAS GOING
TO USE? 

"A.  WELL, THE ONLY METHOD HE SAID WAS BY FORCE.  HE SAID THAT WE,
THE WORKERS, WOULD NEVER BE ABLE TO GET IN THE GOVERNMENT BY VOTE. 

     *         *         *   *         * 

"Q.  THIS WAS APRIL AND MAY, 1935.  WHAT DID HE SAY? 

"A.  WE HAD THIS CAMPAIGN FOR THE BI-WEEKLY PAPER, AND HE SPOKE VERY
ARDENTLY TO THE MEMBERS THAT WE HAD TO GO AHEAD AND SUBSCRIBE AND GET
THE MONEY THAT WE SUPPOSED TO COLLECT IN ORDER TO REACH THEM WORKERS
AND WAIT IN OUR MOVEMENT UNTIL THE TIME COMES WHEN WE WOULD BE ABLE TO
OVERTHROW THE PRESENT GOVERNMENT BY FORCE AND VIOLENCE. 

"Q.  AND YOU HEARD HIM SAY THAT AT A GREEK FRACTION MEETING? 

"A.  YES. 

     *       *         *         *         * 

"Q.  DO YOU KNOW OF YOUR OWN KNOWLEDGE WHAT POSITIONS THE DEFENDANT,
GUSS POLITES, HELD IN THE COMMUNIST PARTY DURING THAT PERIOD OF TIME? 

"A.  NOT ALL OF THE POSITIONS.  I DO KNOW THAT HE WAS A MEMBER OF THE
FRACTION BUREAU OF THE GREEK FRACTION, AND MY RECOLLECTION IS THAT HE
WAS SECRETARY OF THAT FRACTION FOR A TIME.  AT LEAST, HE WAS A HIGH
FUNCTIONARY AND ATTENDED FUNCTIONARY MEETINGS. 

     *         *         *         *         * 

"A.  HE HAS, IN SPEECHES, ADVOCATED THE OVERTHROW OF THE GOVERNMENT
BY FORCE AND VIOLENCE, DURING MY PRESENCE." 

FN7  IN CONNECTION WITH THE ISSUE OF FRAUDULENT PROCUREMENT, THE
COURT ALSO FOUND THAT THE GOVERNMENT HAD PROVED BY CLEAR, UNEQUIVOCAL,
AND CONVINCING EVIDENCE THAT THE PETITIONER HAD PERSONALLY KNOWN THAT
THE COMMUNIST PARTY OF THE UNITED STATES WAS AN ORGANIZATION ADVOCATING
OVERTHROW OF THIS GOVERNMENT BY FORCE AND VIOLENCE.  127 F. SUPP. 768,
772-773. 

FN8  THE COURT ALSO FOUND THAT THE PETITIONER HAD PROCURED HIS
CITIZENSHIP FRAUDULENTLY.  THE RESPONDENT NOW STATES THAT IT DOES "NOT
NOW RELY UPON THE FRAUD FINDING AS AN ALTERNATIVE BASIS FOR THE
JUDGMENT OF DENATURALIZATION."  IN THE LIGHT OF ITS CONCESSION THAT,
"IN VIEW OF THE STATE OF THIS PARTICULAR RECORD," THE FINDING OF FRAUD
WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, WE PROCEED UPON THAT
PREMISE. 

FN9  IT IS WORTH POINTING OUT, WITH RESPECT TO THE THREE OTHER
DENATURALIZATION JUDGMENTS WHOSE AFFIRMANCE BY THE SIXTH CIRCUIT
ASSERTEDLY LED TO THE PETITIONER'S DECISION NOT TO PURSUE HIS APPEAL,
THAT EACH WAS DECIDED UPON THE FACTS OF ITS OWN INDIVIDUAL RECORD.  211
F.2D 118.  AND IT NEED HARDLY BE REPEATED AT THIS LATE DATE THAT THE
REFUSAL BY THIS COURT TO REVIEW THOSE CASES IMPORTED "NO EXPRESSION OF
OPINION ON THE MERITS."  SUNAL V. LARGE, 332 U.S. 174, 181; SEE
MARYLAND V. BALTIMORE RADIO SHOW, 338 U.S. 912. 

FN10  PARAGRAPH FOURTH OF SEC. 4 OF THE ACT, 34 STAT. 596, 598, AS
AMENDED, 8 U.S.C. (1934 ED.)  SEC. 382, PROVIDED THAT NO ALIEN SHOULD
BE ADMITTED TO CITIZENSHIP UNLESS IMMEDIATELY PRECEDING HIS APPLICATION
HE HAD RESIDED CONTINUOUSLY WITHIN THE UNITED STATES FOR AT LEAST FIVE
YEARS AND THAT DURING THIS PERIOD "HE HAS BEHAVED AS A PERSON OF GOOD
MORAL CHARACTER, ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE
UNITED STATES, AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE
UNITED STATES." 

FN11  THE GOVERNMENT WAS SEEKING TO DENATURALIZE MAISENBERG UNDER THE
PROVISIONS OF SEC. 340(A) OF THE IMMIGRATION AND NATIONALITY ACT OF
1952, 66 STAT. 260, 8 U.S.C. SEC. 1451(A).  UNDER THAT STATUTE ILLEGAL
PROCUREMENT AS SUCH IS NOT A SPECIFIC BASIS FOR CANCELLATION OF A
CERTIFICATE OF NATURALIZATION. 

FN12  IN VIEW OF THIS CONCLUSION THE COURT DID NOT REACH THE FURTHER
QUESTION UNDER THE 1952 ACT WHETHER THE GOVERNMENT HAD ADEQUATELY
PROVED THAT PETITIONER HAD MISREPRESENTED HER ATTACHMENT OR CONCEALED A
LACK OF ATTACHMENT.  SEE 356 U.S., AT 672, NOTE 3. 

FN13  SEE NOTE 4, SUPRA. 

FN14  IT IS TO BE EMPHASIZED THAT NEITHER IN HIS MOTION TO SET ASIDE
THE DENATURALIZATION JUDGMENT NOR IN THE SUPPORTING AFFIDAVIT DID THE
PETITIONER ALLEGE THE EXISTENCE OF ANY NEW OR MITIGATING EVIDENCE UPON
THESE FACTUAL ISSUES.  CF. KLAPPROTT V. UNITED STATES, 335 U.S. 601. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

IN MY VIEW, THE DISTRICT COURT SHOULD HAVE EXERCISED ITS DISCRETION
UNDER FED. RULES CIV.  PROC., 60(B) TO DETERMINE WHETHER IT IS ANY
LONGER EQUITABLE THAT THIS JUDGMENT OF DENATURALIZATION SHOULD HAVE
PROSPECTIVE APPLICATION.  THE COURT'S OPINION, ALTHOUGH IT REFERS TO
ACKERMANN V. UNITED STATES, 340 U.S. 193, AS "RELEVANT AND PERSUASIVE,"
EXPRESSES NO DEFINITE VIEW ON THE AVAILABILITY OF RULE 60(B) IN THIS
SITUATION, BUT INSTEAD DECIDES ON THE MERITS THAT THE STATE OF THE LAW
IS SUBSTANTIALLY UNCHANGED SINCE THE ENTRY OF THE DENATURALIZATION
DECREE.  I WOULD CONFIRM THE POWER OF THE DISTRICT COURT TO ACT UNDER
RULE 60(B), BUT REMAND THE CAUSE TO THAT COURT SO THAT IT MAY, IN THE
FIRST INSTANCE, DECIDE WHAT EFFECT THE NOWAK AND MAISENBERG DECISIONS
HAVE ON PETITIONER'S CASE. 

FIRST, IT IS NECESSARY TOO POINT OUT THAT ACKERMANN IS NOT IN POINT. 
FOR ONE THING, RELIEF THERE WAS SOUGHT ONLY UNDER SUBDIVISIONS (1) AND
(6) OF RULE 60(B), NOT, AS HERE, UNDER SUBDIVISION (5) AS WELL.  BUT
MORE FUNDAMENTALLY, ACKERMANN WAS A CASE IN WHICH PETITIONERS COULD
HAVE SECURED A REVERSAL OF THEIR DENATURALIZATION SIMPLY BY APPEALING. 
SINCE THEY DELIBERATELY CHOSE NOT TO APPEAL, THIS COURT HELD RULE 60(B)
UNAVAILABLE.  HERE ALSO PETITIONER CHOSE NOT TO APPEAL, BUT ONLY
BECAUSE OF THE HOPELESSNESS OF ANY CHANCE OF SUCCESS.  THE COURT OF
APPEALS HAD AFFIRMED JUDGMENTS IN THREE COMPANION CASES, AND THIS COURT
HAD DENIED CERTIORARI.  TRUE, DENIAL OF CERTIORARI HAS NO LEGAL
SIGNIFICANCE, AND PETITIONER MIGHT HAVE DOGGEDLY PURSUED HIS APPELLATE
REMEDIES TO THE END.  BUT AS A PRACTICAL MATTER SUCH A COURSE OF ACTION
WOULD HAVE BEEN FUTILE.  SO PETITIONER'S CASE MUST BE CONSIDERED NOT AS
ONE IN WHICH HE COULD HAVE APPEALED SUCCESSFULLY, BUT AS ONE IN WHICH
HE IN FACT DID APPEAL UNSUCCESSFULLY. 

IN THAT SITUATION, IT WAS THE LAW LONG BEFORE THE PROMULGATION OF
RULE 60(B) THAT A CHANGE IN THE LAW AFTER THE RENDITION OF A DECREE WAS
GROUNDS FOR MODIFICATION OR DISSOLUTION OF THAT DECREE INSOFAR AS IT
MIGHT AFFECT FUTURE CONDUCT.  PENNSYLVANIA V. WHEELING & BELMONT BRIDGE
CO., 18 HOW.  421, 431-432.  THIS PRINCIPLE IS ROOTED IN THE PRACTICE
OF COURTS OF EQUITY AND IS WELL SETTLED IN THE VAST MAJORITY OF THE
STATES.  SEE 7 MOORE, FEDERAL PRACTICE (2D ED. 1955), PARA. 60.26(4);
LADNER V. SIEGEL, 298 PA. 487, 148 A. 699.  PERHAPS BEFORE THE MERGER
OF LAW AND EQUITY IN 1938 A DENATURALIZATION PROCEEDING WAS AN "ACTION
AT LAW."  BUT A DECREE OF DENATURALIZATION IS A DETERMINATION OF STATUS
WHICH HAS PROSPECTIVE EFFECT, AND THERE IS NO REASON WHY IN MODERN
TIMES IT SHOULD NOT BE GOVERNED BY EQUITABLE PRINCIPLES. 

THE DECISIONS UNDER RULE 60(B)(5)(ADOPTED BY THE 1948 AMENDMENTS TO
THE FEDERAL RULES OF CIVIL PROCEDURE) CONTINUE THIS HISTORY OF
EQUITABLE ADJUSTMENT TO CHANGING CONDITIONS OF FACT AND LAW.  MCGRATH
V. POTASH, 199 F.2D 166, A CASE DECIDED UNDER SUBDIVISION (6), BUT TO
WHICH SUBDIVISION (5), BY THE RESPONDENT' ADMISSION, WAS EQUALLY
APPLICABLE, IS DIRECTLY IN POINT.  THERE SEVERAL ALIENS OBTAINED A
DECREE FROM A DISTRICT COURT ENJOINING THE ATTORNEY GENERAL FROM
PROCEEDING TO DEPORT THEM WITHOUT COMPLYING WITH THE HEARING
REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT.  PENDING APPEAL BY
THE GOVERNMENT, THIS COURT HELD IN WONG YANG SUNG V. MCGRATH, 339 U.S.
33, THAT THE ADMINISTRATIVE PROCEDURE ACT DID INDEED APPLY TO
DEPORTATION PROCEEDINGS.  SEEING THAT FURTHER RESISTANCE WOULD BE
FUTILE, THE ATTORNEY GENERAL DISMISSED HIS OWN APPEAL BY AGREEMENT. 
SHORTLY THEREAFTER CONGRESS OVERRULED THE WONG YANG SUNG DECISION AND
EXPRESSLY DECLARED THAT PROCEEDINGS RELATIVE TO THE EXCLUSION OR
EXPULSION OF ALIENS SHOULD NOT BE SUBJECT TO THE ADMINISTRATIVE
PROCEDURE ACT.  64 STAT.  1048.  THE GOVERNMENT THEN MOVED UNDER RULE
60(B) FOR A DISSOLUTION OF THE INJUNCTION AGAINST IT, RELYING ON THIS
CHANGE IN LAW, AND THE MOTION WAS GRANTED.  THE UNITED STATES IN THIS
CASE SEEKS TO DISTINGUISH THAT DECISION BY ASSERTING THAT HERE "THE
CONTINUING FORCE OF THE DECREE DERIVES FROM FACTS FULLY ACCRUED AND
LITIGATED IN THE ORIGINAL JUDGMENT."  TRUE ENOUGH; BUT HERE, AS IN
MCGRATH, ALTHOUGH THE FACTS WERE FULLY ACCRUED AT THE TIME OF THE
DECREE AND HAVE NOT CHANGED, THE LAW HAS (SO PETITIONER ASSERTS)
RADICALLY CHANGED, AND IN THAT SITUATION IT IS UNJUST TO GIVE THE
JUDGMENT PROSPECTIVE EFFECT. 

THE CASES UNDER RULE 60(B)(5) RELIED ON BY THE UNITED STATES ARE
READILY DISTINGUISHABLE.  IN TITLE V. UNITED STATES, 263 F.2D 28, CERT.
DENIED, 359 U.S. 989, ELGIN NAT'L WATCH CO. V. BARRETT, 213 F.2D 776,
AND BERRYHILL V. UNITED STATES, 199 F.2D 217, IT WAS ENTIRELY POSSIBLE
THAT THE REMEDY BY APPEAL WOULD HAVE BEEN SUCCESSFULLY INVOKED.  AND IN
COLLINS V. CITY OF WICHITA, 254 F.2D 837, A MODIFICATION OF THE
JUDGMENT WOULD HAVE RETROACTIVELY DISTURBED EXISTING RIGHTS AND
FINANCIAL RELIANCE ON THE JUDGMENT.  IN SCOTTEN V. LITTLEFIELD, 235
U.S. 407, RELIEF WAS DENIED IN A SITUATION VIRTUALLY IDENTICAL TO THIS
CASE.  BUT THE POINT ACTUALLY DECIDED THERE WAS THAT A BILL OF REVIEW
WOULD NOT LIE, AND IT IS UNIVERSALLY CONCEDED THAT RULE 60(B) IS NOT
LIMITED TO THOSE SITUATIONS WHERE THE OLD CONFUSING COLLATERAL REMEDIES
WOULD HAVE BEEN AVAILABLE. 

IN SUM, THE DISTRICT COURT NEED "NOT ABDICATE ITS POWER TO REVOKE OR
MODIFY ITS MANDATE IF SATISFIED THAT WHAT IT HAS BEEN DOING HAS BEEN
TURNED THROUGH CHANGING CIRCUMSTANCES INTO AN INSTRUMENT OF WRONG." 
UNITED STATES V. SWIFT & CO., 286 U.S. 106, 114-115.  IT IS REVOLTING
THAT PETITIONER SHOULD BE SUBJECT TO DEPORTATION BECAUSE OF A DECREE
WHICH HE COULD NOT SUCCESSFULLY HAVE ATTACKED ON APPEAL AND WHICH
SUBSEQUENT EVENTS MAY HAVE RENDERED ERRONEOUS.  THE PRINCIPLE OF
FINALITY IS NOT OFFENDED BY MODIFICATION WHICH DISTURBS NO ACCRUED
RIGHTS AND CONCERNS ONLY FUTURE CONDUCT.    ACCORDINGLY, I WOULD
REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THIS CASE TO
THE DISTRICT COURT WITH DIRECTIONS TO EXERCISE ITS DISCRETION UNDER
RULE 60(B)(5). 
..END :















NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. V. HENAGAN 364 U.S. 441 


NO. 38.  ARGUED NOVEMBER 8, 1960 - DECIDED NOVEMBER 21, 1960 - 272 F.2D
153, REVERSED. 


IN THIS SUIT AGAINST A RAILROAD UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT BY A WAITRESS IN THE GRILL CAR OF ONE OF THE RAILROAD'S TRAINS TO
RECOVER DAMAGES FOR INJURIES ALLEGEDLY SUSTAINED WHEN AN EMERGENCY
APPLICATION OF THE BRAKES BROUGHT THE TRAIN TO A SUDDEN STOP, HELD:
THE PROOFS WERE INSUFFICIENT TO SUBMIT TO THE JURY THE QUESTION WHETHER
EMPLOYER NEGLIGENCE PLAYED A PART IN THE EMERGENCY APPLICATION OF THE
BRAKES WHICH ALLEGEDLY PRODUCED THE INJURY. 

NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. V. HENAGAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

PER CURIAM. 

THE RESPONDENT WAS A WAITRESS IN THE GRILL CAR OF ONE OF PETITIONER'S
TRAINS.  SHE BROUGHT THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, 45 U.S.C. SEC. 51 ET SEQ., FOR DAMAGES FOR INJURIES ALLEGEDLY
SUSTAINED WHEN AN EMERGENCY APPLICATION OF THE BRAKES BROUGHT THE TRAIN
TO A SUDDEN STOP.  A JURY WHICH HEARD THE CASE IN THE DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS RETURNED A VERDICT FOR RESPONDENT. 
THE TRIAL JUDGE DENIED THE PETITIONER'S MOTIONS FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AND FOR A NEW TRIAL.  THE COURT OF APPEALS
FOR THE FIRST CIRCUIT AFFIRMED, 272 F.2D 153.  WE GRANTED CERTIORARI,
362 U.S. 967. 

THE TRAIN WAS PULLING INTO PETITIONER'S STATION AT PROVIDENCE, RHODE
ISLAND, FOR A SCHEDULED STOP.   ONE MONTELL, APPARENTLY TO COMMIT
SUICIDE, STEPPED ON THE TRACK FROM THE STATION PLATFORM AS THE TRAIN
APPROACHED ALONGSIDE THE PLATFORM.  THE ENGINEER MADE THE EMERGENCY
APPLICATION OF THE BRAKES IN AN UNSUCCESSFUL EFFORT TO STOP THE TRAIN
BEFORE IT REACHED MONTELL.  WE HAVE EXAMINED THE TRIAL RECORD AND HOLD
THAT THE PROOFS WERE INSUFFICIENT TO SUBMIT TO THE JURY THE QUESTION
WHETHER EMPLOYER NEGLIGENCE PLAYED A PART IN THE EMERGENCY APPLICATION
OF THE BRAKES WHICH ALLEGEDLY PRODUCED THE RESPONDENT'S INJURY.  SEE
HERDMAN V. PENNSYLVANIA R. CO., 352 U.S. 518. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE
REMANDED TO THE DISTRICT COURT WITH DIRECTION TO ENTER JUDGMENT FOR THE
PETITIONER NOTWITHSTANDING THE VERDICT.  IT IS SO ORDERED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT.  THEY BELIEVE
THERE WAS EVIDENCE OF NEGLIGENCE SUFFICIENT FOR THE JURY, AS SUMMARIZED
BY JUDGE WOODBURY, SPEAKING FOR A UNANIMOUS COURT OF APPEALS.   272
F.2D 153.  THEY ALSO DISSENT FROM THE DIRECTION TO ENTER JUDGMENT FOR
THE PETITIONER, SINCE THEY ARE OF THE VIEW THAT IF THERE IS A REVERSAL,
THERE SHOULD BE A NEW TRIAL.  SEE GALLOWAY V. UNITED STATES, 319 U.S.
372, 396 (DISSENTING OPINION). 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI WAS IMPROVIDENTLY GRANTED. 
..END :
















THOMAS V. VIRGINIA 364 U.S. 443 


NO. 43.  ARGUED NOVEMBER 10, 1960 - DECIDED NOVEMBER 21, 1960 - JUDGMENT
REVERSED AND CAUSE REMANDED. 


THOMAS V. VIRGINIA. 

CERTIORARI TO THE CIRCUIT COURT OF ARLINGTON COUNTY, VIRGINIA. 

PER CURIAM. 

THE JUDGMENT OF THE CIRCUIT COURT OF ARLINGTON COUNTY OF THE
COMMONWEALTH OF VIRGINIA IS REVERSED AND THE CASE IS REMANDED TO THAT
COURT.  BLODGETT V. SILBERMAN, 277 U.S. 1, 18. 

MR. JUSTICE BLACK DISSENTS FOR THE SAME REASON EXPRESSED BY MR.
JUSTICE HOLMES IN UNION TRANSIT CO. V. KENTUCKY, 199 U.S. 194, 211: 

"IT SEEMS TO ME THAT THE RESULT REACHED BY THE COURT PROBABLY IS A
DESIRABLE ONE, BUT I HARDLY UNDERSTAND HOW IT CAN BE DEDUCED FROM THE
FOURTEENTH AMENDMENT  ...  ." 
..END :









FORD MOTOR CO. V. PACE 364 U.S. 444 


NO. 431.  DECIDED NOVEMBER 21, 1960 - APPEAL DISMISSED FOR WANT OF A
PROPERLY PRESENTED FEDERAL QUESTION.  - REPORTED BELOW: 206 TENN. 559,
335 S.W.2D 360. 


FORD MOTOR CO. V. PACE ET AL. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A PROPERLY PRESENTED FEDERAL QUESTION. 
..END :
















DART DRUG CORP. OF MARYLAND V. GADOL, DBA FOUR CORNERS PHARMACY 364 U.S.
444 


NO. 435.  DECIDED NOVEMBER 21, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  222 MD. 372, 161 A.2D
122. 


DART DRUG CORP. OF MARYLAND ET AL. V. GADOL ET AL., DOING BUSINESS AS
FOUR CORNERS PHARMACY. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














KING V. ELLIS 364 U.S. 445 


NO. 4, MISC.  DECIDED NOVEMBER 21, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


KING V. ELLIS, CORRECTIONS DIRECTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR A FULL HEARING.   ELLIS V.
UNITED STATES, 356 U.S. 674. 
..END :














STATHAM V. CALIFORNIA 364 U.S. 445 


NO. 239, MISC.  DECIDED NOVEMBER 21, 1960 - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  176 CAL. APP. 2D 806,
1 CAL. RPTR.  767. 


STATHAM V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















GOMILLION V. LIGHTFOOT 364 U.S. 339 


NO. 32.  ARGUED OCTOBER 18-19, 1960.  - DECIDED NOVEMBER 14, 1960.  -
270 F.2D 594, REVERSED. 


NEGRO CITIZENS SUED IN A FEDERAL DISTRICT COURT IN ALABAMA FOR A
DECLARATORY JUDGMENT THAT AN ACT OF THE STATE LEGISLATURE CHANGING THE
BOUNDARIES OF THE CITY OF TUSKEGEE IS UNCONSTITUTIONAL AND FOR AN
INJUNCTION AGAINST ITS ENFORCEMENT.  THEY ALLEGED THAT THE ACT ALTERS
THE SHAPE OF TUSKEGEE FROM A SQUARE TO AN IRREGULAR 28-SIDED FIGURE;
THAT IT WOULD ELIMINATE FROM THE CITY ALL BUT FOUR OR FIVE OF ITS 400
NEGRO VOTERS WITHOUT ELIMINATING ANY WHITE VOTER; AND THAT ITS EFFECT
WAS TO DEPRIVE NEGROES OF THEIR RIGHT TO VOTE IN TUSKEGEE ELECTIONS ON
ACCOUNT OF THEIR RACE.  THE DISTRICT COURT DISMISSED THE COMPLAINT, ON
THE GROUND THAT IT HAD NO AUTHORITY TO DECLARE THE ACT INVALID OR TO
CHANGE ANY BOUNDARIES OF MUNICIPAL CORPORATIONS FIXED BY THE STATE
LEGISLATURE.  HELD: IT ERRED IN DOING SO, SINCE THE ALLEGATIONS, IF
PROVEN, WOULD ESTABLISH THAT THE INEVITABLE EFFECT OF THE ACT WOULD BE
TO DEPRIVE NEGROES OF THEIR RIGHT TO VOTE ON ACCOUNT OF THEIR RACE,
CONTRARY TO THE FIFTEENTH AMENDMENT.  PP. 340-348. 

(A)  EVEN THE BROAD POWER OF A STATE TO FIX THE BOUNDARIES OF ITS
MUNICIPALITIES IS LIMITED BY THE FIFTEENTH AMENDMENT, WHICH FORBIDS A
STATE TO DEPRIVE ANY CITIZEN OF THE RIGHT TO VOTE BECAUSE OF HIS RACE. 
HUNTER V. PITTSBURGH, 207 U.S. 161, AND RELATED CASES DISTINGUISHED. 
PP. 342-345. 

(B) A STATE STATUTE WHICH IS ALLEGED TO HAVE THE INEVITABLE EFFECT OF
DEPRIVING NEGROES OF THEIR RIGHT TO VOTE IN TUSKEGEE BECAUSE OF THEIR
RACE IS NOT IMMUNE TO ATTACK SIMPLY BECAUSE THE MECHANISM EMPLOYED BY
THE LEGISLATURE IS A "POLITICAL" REDEFINITION OF MUNICIPAL BOUNDARIES. 
COLEGROVE V. GREEN, 328 U.S. 549, DISTINGUISHED.  PP. 346-348. 

GOMILLION ET AL. V. LIGHTFOOT, MAYOR OF TUSKEGEE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION CHALLENGES THE VALIDITY, UNDER THE UNITED STATES
CONSTITUTION, OF LOCAL ACT NO. 140, PASSED BY THE LEGISLATURE OF
ALABAMA IN 1957, REDEFINING THE BOUNDARIES OF THE CITY OF TUSKEGEE. 
PETITIONERS, NEGRO CITIZENS OF ALABAMA WHO WERE, AT THE TIME OF THIS
REDISTRICTING MEASURE, RESIDENTS OF THE CITY OF TUSKEGEE, BROUGHT AN
ACTION IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
ALABAMA FOR A DECLARATORY JUDGMENT THAT ACT 140 IS UNCONSTITUTIONAL,
AND FOR AN INJUNCTION TO RESTRAIN THE MAYOR AND OFFICERS OF TUSKEGEE
AND THE OFFICIALS OF MACON COUNTY, ALABAMA, FROM ENFORCING THE ACT
AGAINST THEM AND OTHER NEGROES SIMILARLY SITUATED.  PETITIONERS' CLAIM
IS THAT ENFORCEMENT OF THE STATUTE, WHICH ALTERS THE SHAPE OF TUSKEGEE
FROM A SQUARE TO AN UNCOUTH TWENTY-EIGHT-SIDED FIGURE, WILL CONSTITUTE
A DISCRIMINATION AGAINST THEM IN VIOLATION OF THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION AND
WILL DENY THEM THE RIGHT TO VOTE IN DEFIANCE OF THE FIFTEENTH
AMENDMENT. 

THE RESPONDENTS MOVED FOR DISMISSAL OF THE ACTION FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED AND FOR LACK OF
JURISDICTION OF THE DISTRICT COURT.  THE COURT GRANTED THE MOTION,
STATING, "THIS COURT HAS NO CONTROL OVER, NO SUPERVISION OVER, AND NO
POWER TO CHANGE ANY BOUNDARIES OF MUNICIPAL CORPORATIONS FIXED BY A
DULY CONVENED AND ELECTED LEGISLATIVE BODY, ACTING FOR THE PEOPLE IN
THE STATE OF ALABAMA."  167 F. SUPP.  405, 410.  ON APPEAL, THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT, AFFIRMED THE JUDGMENT, ONE JUDGE
DISSENTING.  270 F.2D 594.  WE BROUGHT THE CASE HERE SINCE SERIOUS
QUESTIONS WERE RAISED CONCERNING THE POWER OF A STATE OVER ITS
MUNICIPALITIES IN RELATION TO THE FOURTEENTH AND FIFTEENTH AMENDMENTS. 
362 U.S. 916. 

AT THIS STAGE OF THE LITIGATION WE ARE NOT CONCERNED WITH THE TRUTH
OF THE ALLEGATIONS, THAT IS, THE ABILITY OF PETITIONERS TO SUSTAIN
THEIR ALLEGATIONS BY PROOF.  THE SOLE QUESTION IS WHETHER THE
ALLEGATIONS ENTITLE THEM TO MAKE GOOD ON THEIR CLAIM THAT THEY ARE
BEING DENIED RIGHTS UNDER THE UNITED STATES CONSTITUTION.  THE
COMPLAINT, CHARGING THAT ACT 140 IS A DEVICE TO DISENFRANCHISE NEGRO
CITIZENS, ALLEGES THE FOLLOWING FACTS: PRIOR TO ACT 140 THE CITY OF
TUSKEGEE WAS SQUARE IN SHAPE; THE ACT TRANSFORMED IT INTO A STRANGELY
IRREGULAR TWENTY-EIGHT-SIDED FIGURE AS INDICATED IN THE DIAGRAM
APPENDED TO THIS OPINION.  THE ESSENTIAL INEVITABLE EFFECT OF THIS
REDEFINITION OF TUSKEGEE'S BOUNDARIES IS TO REMOVE FROM THE CITY ALL
SAVE ONLY FOUR OR FIVE OF ITS 400 NEGRO VOTERS WHILE NOT REMOVING A
SINGLE WHITE VOTER OR RESIDENT.  THE RESULT OF THE ACT IS TO DEPRIVE
THE NEGRO PETITIONERS DISCRIMINATORILY OF THE BENEFITS OF RESIDENCE IN
TUSKEGEE, INCLUDING, INTER ALIA, THE RIGHT TO VOTE IN MUNICIPAL
ELECTIONS. 

THESE ALLEGATIONS, IF PROVEN, WOULD ABUNDANTLY ESTABLISH THAT ACT 140
WAS NOT AN ORDINARY GEOGRAPHIC REDISTRICTING MEASURE EVEN WITHOUT
FAMILIAR ABUSES OF GERRYMANDERING.  IF THESE ALLEGATIONS UPON A TRIAL
REMAINED UNCONTRADICTED OR UNQUALIFIED, THE CONCLUSION WOULD BE
IRRESISTIBLE, TANTAMOUNT FOR ALL PRACTICAL PURPOSES TO A MATHEMATICAL
DEMONSTRATION, THAT THE LEGISLATION IS SOLELY CONCERNED WITH
SEGREGATING WHITE AND COLORED VOTERS BY FENCING NEGRO CITIZENS OUT OF
TOWN SO AS TO DEPRIVE THEM OF THEIR PRE-EXISTING MUNICIPAL VOTE. 

IT IS DIFFICULT TO APPRECIATE WHAT STANDS IN THE WAY OF ADJUDGING A
STATUTE HAVING THIS INEVITABLE EFFECT INVALID IN LIGHT OF THE
PRINCIPLES BY WHICH THIS COURT MUST JUDGE, AND UNIFORMLY HAS JUDGED,
STATUTES THAT, HOWSOEVER SPECIOUSLY DEFINED, OBVIOUSLY DISCRIMINATE
AGAINST COLORED CITIZENS.  "THE FIFTEENTH AMENDMENT NULLIFIES
SOPHISTICATED AS WELL AS SIMPLE-MINDED MODES OF DISCRIMINATION."  LANE
V. WILSON, 307 U.S. 268, 275. 

THE COMPLAINT AMPLY ALLEGES A CLAIM OF RACIAL DISCRIMINATION. 
AGAINST THIS CLAIM THE RESPONDENTS HAVE NEVER SUGGESTED, EITHER IN
THEIR BRIEF OR IN ORAL ARGUMENT, ANY COUNTERVAILING MUNICIPAL FUNCTION
WHICH ACT 140 IS DESIGNED TO SERVE.  THE RESPONDENTS INVOKE
GENERALITIES EXPRESSING THE STATE'S UNRESTRICTED POWER - UNLIMITED,
THAT IS, BY THE UNITED STATES CONSTITUTION - TO ESTABLISH, DESTROY, OR
REORGANIZE BY CONTRACTION OR EXPANSION ITS POLITICAL SUBDIVISIONS, TO
WIT, CITIES, COUNTIES, AND OTHER LOCAL UNITS.  WE FREELY RECOGNIZE THE
BREADTH AND IMPORTANCE OF THIS ASPECT OF THE STATE'S POLITICAL POWER. 
TO EXALT THIS POWER INTO AN ABSOLUTE IS TO MISCONCEIVE THE REACH AND
RULE OF THIS COURT'S DECISIONS IN THE LEADING CASE OF HUNTER V.
PITTSBURGH, 207 U.S. 161, AND RELATED CASES RELIED UPON BY
RESPONDENTS. 

THE HUNTER CASE INVOLVED A CLAIM BY CITIZENS OF ALLEGHENY,
PENNSYLVANIA, THAT THE GENERAL ASSEMBLY OF THAT STATE COULD NOT DIRECT
A CONSOLIDATION OF THEIR CITY AND PITTSBURGH OVER THE OBJECTION OF A
MAJORITY OF THE ALLEGHENY VOTERS.  IT WAS ALLEGED THAT WHILE ALLEGHENY
ALREADY HAD MADE NUMEROUS CIVIC IMPROVEMENTS, PITTSBURGH WAS ONLY THEN
PLANNING TO UNDERTAKE SUCH IMPROVEMENTS, AND THAT THE ANNEXATION WOULD
THEREFORE GREATLY INCREASE THE TAX BURDEN ON ALLEGHENY RESIDENTS.  ALL
THAT THE CASE HELD WAS (1) THAT THERE IS NO IMPLIED CONTRACT BETWEEN A
CITY AND ITS RESIDENTS THAT THEIR TAXES WILL BE SPENT SOLELY FOR THE
BENEFIT OF THAT CITY, AND (2) THAT A CITIZEN OF ONE MUNICIPALITY IS NOT
DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW BY BEING SUBJECTED TO
INCREASED TAX BURDENS AS A RESULT OF THE CONSOLIDATION OF HIS CITY WITH
ANOTHER.  RELATED CASES, UPON WHICH THE RESPONDENTS ALSO RELY, SUCH AS
TRENTON V. NEW JERSEY, 262 U.S. 182; PAWHUSKA V. PAWHUSKA OIL CO., 250
U.S. 394; AND LARAMIE COUNTY V. ALBANY COUNTY, 92 U.S. 307, ARE FAR OFF
THE MARK.  THEY ARE AUTHORITY ONLY FOR THE PRINCIPLE THAT NO
CONSTITUTIONALLY PROTECTED CONTRACTUAL OBLIGATION ARISES BETWEEN A
STATE AND ITS SUBORDINATE GOVERNMENTAL ENTITIES SOLELY AS A RESULT OF
THEIR RELATIONSHIP. 

IN SHORT, THE CASES THAT HAVE COME BEFORE THIS COURT REGARDING
LEGISLATION BY STATES DEALING WITH THEIR POLITICAL SUBDIVISIONS FALL
INTO TWO CLASSES:  (1) THOSE IN WHICH IT IS CLAIMED THAT THE STATE, BY
VIRTUE OF THE PROHIBITION AGAINST IMPAIRMENT OF THE OBLIGATION OF
CONTRACT (ART. I, SEC. 10) AND OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, IS WITHOUT POWER TO EXTINGUISH, OR ALTER THE
BOUNDARIES OF, AN EXISTING MUNICIPALITY; AND (2) IN WHICH IT IS CLAIMED
THAT THE STATE HAS NO POWER TO CHANGE THE IDENTITY OF A MUNICIPALITY
WHEREBY CITIZENS OF A PRE-EXISTING MUNICIPALITY SUFFER SERIOUS ECONOMIC
DISADVANTAGE. 

NEITHER OF THESE CLAIMS IS SUPPORTED BY SUCH A SPECIFIC LIMITATION
UPON STATE POWER AS CONFINES THE STATES UNDER THE FIFTEENTH AMENDMENT. 
AS TO THE FIRST CATEGORY, IT IS OBVIOUS THAT THE CREATION OF
MUNICIPALITIES - CLEARLY A POLITICAL ACT - DOESS NOT COME WITHIN THE
CONCEPTION OF A CONTRACT UNDER THE DARTMOUTH COLLEGE CASE.  4 WHEAT. 
518.  AS TO THE SECOND, IF ONE PRINCIPLE CLEARLY EMERGES FROM THE
NUMEROUS DECISIONS OF THIS COURT DEALING WITH TAXATION IT IS THAT THE
DUE PROCESS CLAUSE AFFORDS NO IMMUNITY AGAINST MERE INEQUALITIES IN TAX
BURDENS, NOR DOES IT AFFORD PROTECTION AGAINST THEIR INCREASE AS AN
INDIRECT CONSEQUENCE OF A STATE'S EXERCISE OF ITS POLITICAL POWERS. 

PARTICULARLY IN DEALING WITH CLAIMS UNDER BROAD PROVISIONS OF THE
CONSTITUTION, WHICH DERIVE CONTENT BY AN INTERPRETIVE PROCESS OF
INCLUSION AND EXCLUSION, IT IS IMPERATIVE THAT GENERALIZATIONS, BASED
ON AND QUALIFIED BY THE CONCRETE SITUATIONS THAT GAVE RISE TO THEM,
MUST NOT BE APPLIED OUT OF CONTEXT IN DISREGARD OF VARIANT CONTROLLING
FACTS.  THUS, A CORRECT READING OF THE SEEMINGLY UNCONFINED DICTA OF
HUNTER AND KINDRED CASES IS NOT THAT THE STATE HAS PLENARY POWER TO
MANIPULATE IN EVERY CONCEIVABLE WAY, FOR EVERY CONCEIVABLE PURPOSE, THE
AFFAIRS OF ITS MUNICIPAL CORPORATIONS, BUT RATHER THAT THE STATE'S
AUTHORITY IS UNRESTRAINED BY THE PARTICULAR PROHIBITIONS OF THE
CONSTITUTION CONSIDERED IN THOSE CASES. 

THE HUNTER OPINION ITSELF INTIMATES THAT A STATE LEGISLATURE MAY NOT
BE OMNIPOTENT EVEN AS TO THE DISPOSITION OF SOME TYPES OF PROPERTY
OWNED BY MUNICIPAL CORPORATIONS, 207 U.S., AT 178-181.  FURTHER, OTHER
CASES IN THIS COURT HAVE REFUSED TO ALLOW A STATE TO ABOLISH A
MUNICIPALITY, OR ALTER ITS BOUNDARIES, OR MERGE IT WITH ANOTHER CITY,
WITHOUT PRESERVING TO THE CREDITORS OF THE OLD CITY SOME EFFECTIVE
RECOURSE FOR THE COLLECTION OF DEBTS OWED THEM.  SHAPLEIGH V. SAN
ANGELO, 167 U.S. 646; MOBILE V. WATSON, 116 U.S. 289; MOUNT PLEASANT V.
BECKWITH, 100 U.S. 514; BROUGHTON V. PENSACOLA, 93 U.S. 266.  FOR
EXAMPLE, IN MOBILE V. WATSON THE COURT SAID: 

"WHERE THE RESOURCE FOR THE PAYMENT OF THE BONDS OF A MUNICIPAL
CORPORATION IS THE POWER OF TAXATION EXISTING WHEN THE BONDS WERE
ISSUED, ANY LAW WHICH WITHDRAWS OR LIMITS THE TAXING POWER AND LEAVES
TO ADEQUATE MEANS FOR THE PAYMENT OF THE BONDS IS FORBIDDEN BY THE
CONSTITUTION OF THE UNITED STATES, AND IS NULL AND VOID."  MOBILE V.
WATSON, SUPRA, 116 U.S., AT 305. 

THIS LINE OF AUTHORITY CONCLUSIVELY SHOWS THAT THE COURT HAS NEVER
ACKNOWLEDGED THAT THE STATES HAVE POWER TO DO AS THEY WILL WITH
MUNICIPAL CORPORATIONS REGARDLESS OF CONSEQUENCES.  LEGISLATIVE CONTROL
OF MUNICIPALITIES, NO LESS THAN OTHER STATE POWER, LIES WITHIN THE
SCOPE OF RELEVANT LIMITATIONS IMPOSED BY THE UNITED STATES
CONSTITUTION.  THE OBSERVATION IN GRAHAM V. FOLSOM, 200 U.S. 248, 253,
BECOMES RELEVANT:  "THE POWER OF THE STATE TO ALTER OR DESTROY ITS
CORPORATIONS IS NOT GREATER THAN THE POWER OF THE STATE TO REPEAL ITS
LEGISLATION."  IN THAT CASE, WHICH INVOLVED THE ATTEMPT BY STATE
OFFICIALS TO EVADE THE COLLECTION OF TAXES TO DISCHARGE THE OBLIGATIONS
OF AN EXTINGUISHED TOWNSHIP, MR. JUSTICE MCKENNA, WRITING FOR THE
COURT, WENT ON TO POINT OUT, WITH REFERENCE TO THE MOUNT PLEASANT AND
MOBILE CASES: 

"IT WAS ARGUED IN THOSE CASES, AS IT IS ARGUED IN THIS THAT SUCH
ALTERATION OR DESTRUCTION OF THE SUBORDINATE GOVERNMENTAL DIVISIONS WAS
A PROPER EXERCISE OF LEGISLATIVE POWER, TO WHICH CREDITORS HAD TO
SUBMIT.  THE ARGUMENT DID NOT PREVAIL.  IT WAS ANSWERED, AS WE NOW
ANSWER IT, THAT SUCH POWER, EXTENSIVE THOUGH IT IS, IS MET AND OVERCOME
BY THE PROVISION OF THE CONSTITUTION OF THE UNITED STATES WHICH FORBIDS
A STATE FROM PASSING ANY LAW IMPAIRING THE OBLIGATION OF CONTRACTS  ...
."  200 U.S., AT 253-254. 

IF ALL THIS IS SO IN REGARD TO THE CONSTITUTIONAL PROTECTION OF
CONTRACTS, IT SHOULD BE EQUALLY TRUE THAT, TO PARAPHRASE, SUCH POWER,
EXTENSIVE THOUGH IT IS, IS MET AND OVERCOME BY THE FIFTEENTH AMENDMENT
TO THE CONSTITUTION OF THE UNITED STATES, WHICH FORBIDS A STATE FROM
PASSING ANY LAW WHICH DEPRIVES A CITIZEN OF HIS VOTE BECAUSE OF HIS
RACE.  THE OPPOSITE CONCLUSION, URGED UPON US BY RESPONDENTS, WOULD
SANCTION THE ACHIEVEMENT BY A STATE OF ANY IMPAIRMENT OF VOTING RIGHTS
WHATEVER SO LONG AS IT WAS CLOAKED IN THE GARB OF THE REALIGNMENT OF
POLITICAL SUBDIVISIONS.  "IT IS INCONCEIVABLE THAT GUARANTIES EMBEDDED
IN THE CONSTITUTION OF THE UNITED STATES MAY THUS BE MANIPULATED OUT OF
EXISTENCE."  FROST & FROST TRUCKING CO. V. RAILROAD COMMISSION OF
CALIFORNIA, 271 U.S. 583, 594. 

THE RESPONDENTS FIND ANOTHER BARRIER TO THE TRIAL OF THIS CASE IN
COLEGROVE V. GREEN, 328 U.S. 549.  IN THAT CASE THE COURT PASSED ON AN
ILLINOIS LAW GOVERNING THE ARRANGEMENT OF CONGRESSIONAL DISTRICTS
WITHIN THAT STATE.  THE COMPLAINT RESTED UPON THE DISPARITY OF
POPULATION BETWEEN THE DIFFERENT DISTRICTS WHICH RENDERED THE
EFFECTIVENESS OF EACH INDIVIDUAL'S VOTE IN SOME DISTRICTS FAR LESS THAN
IN OTHERS.  THIS DISPARITY CAME TO PASS SOLELY THROUGH SHIFTS IN
POPULATION BETWEEN 1901, WHEN ILLINOIS ORGANIZED ITS CONGRESSIONAL
DISTRICTS, AND 1946, WHEN THE COMPLAINT WAS LODGED.  DURING THIS ENTIRE
PERIOD ELECTIONS WERE HELD UNDER THE DISTRICTING SCHEME DEVISED IN
1901.  THE COURT AFFIRMED THE DISMISSAL OF THE COMPLAINT ON THE GROUND
THAT IT PRESENTED A SUBJECT NOT MEET FOR ADJUDICATION.* THE DECISIVE
FACTS IN THIS CASE, WHICH AT THIS STAGE MUST BE TAKEN AS PROVED, ARE
WHOLLY DIFFERENT FROM THE CONSIDERATIONS FOUND CONTROLLING IN
COLEGROVE. 

*SOON AFTER THE DECISION IN THE COLEGROVE CASE, GOVERNOR DWIGHT H.
GREEN OF ILLINOIS IN HIS 1947 BIENNIAL MESSAGE TO THE LEGISLATURE
RECOMMENDED A REAPPORTIONMENT.  THE LEGISLATURE IMMEDIATELY RESPONDED,
ILL. SESS. LAWS 1947, P. 879, AND 1951 REDISTRICTED AGAIN.  ILL.  SESS.
LAWS 1951, P. 1924. 

THAT CASE INVOLVED A COMPLAINT OF DISCRIMINATORY APPORTIONMENT OF
CONGRESSIONAL DISTRICTS.  THE APPELLANTS IN COLEGROVE COMPLAINED ONLY
OF A DILUTION OF THE STRENGTH OF THEIR VOTES AS A RESULT OF LEGISLATIVE
INACTION OVER A COURSE OF MANY YEARS.  THE PETITIONERS HERE COMPLAIN
THAT AFFIRMATIVE LEGISLATIVE ACTION DEPRIVES THEM OF THEIR VOTES AND
THE CONSEQUENT ADVANTAGES THAT THE BALLOT AFFORDS.  WHEN A LEGISLATURE
THUS SINGLES OUT A READILY ISOLATED SEGMENT OF A RACIAL MINORITY FOR
SPECIAL DISCRIMINATORY TREATMENT, IT VIOLATES THE FIFTEENTH AMENDMENT. 
IN NO CASE INVOLVING UNEQUAL WEIGHT IN VOTING DISTRIBUTION THAT HAS
COME BEFORE THE COURT DID THE DECISION SANCTION A DIFFERENTIATION ON
RACIAL LINES WHEREBY APPROVAL WAS GIVEN TO UNEQUIVOCAL WITHDRAWAL OF
THE VOTE SOLELY FROM COLORED CITIZENS.  APART FROM ALL ELSE, THESE
CONSIDERATIONS LIFT THIS CONTROVERSY OUT OF THE SO-CALLED "POLITICAL"
ARENA AND INTO THE CONVENTIONAL SPHERE OF CONSTITUTIONAL LITIGATION. 
IN SUM, AS MR. JUSTICE HOLMES REMARKED, WHEN DEALING WITH A RELATED
SITUATION, IN NIXON V. HERNDON, 273 U.S. 536, 540, "OF COURSE THE
PETITION CONCERNS POLITICAL ACTION," BUT "THE OBJECTION THAT THE
SUBJECT MATTER OF THE SUIT IS POLITICAL IS LITTLE MORE THAN A PLAY UPON
WORDS."  A STATUTE WHICH IS ALLEGED TO HAVE WORKED UNCONSTITUTIONAL
DEPRIVATIONS OF PETITIONERS' RIGHTS IS NOT IMMUNE TO ATTACK SIMPLY
BECAUSE THE MECHANISM EMPLOYED BY THE LEGISLATURE IS A REDEFINITION OF
MUNICIPAL BOUNDARIES.  ACCORDING TO THE ALLEGATIONS HERE MADE, THE
ALABAMA LEGISLATURE HAS NOT MERELY REDRAWN THE TUSKEGEE CITY LIMITS
WITH INCIDENTAL INCONVENIENCE TO THE PETITIONERS; IT IS MORE ACCURATE
TO SAY THAT IT HAS DEPRIVED THE PETITIONERS OF THE MUNICIPAL FRANCHISE
AND CONSEQUENT RIGHTS AND TO THAT END IT HAS INCIDENTALLY CHANGED THE
CITY'S BOUNDARIES.  WHILE IN FORM THIS IS MERELY AN ACT REDEFINING
METES AND BOUNDS, IF THE ALLEGATIONS ARE ESTABLISHED, THE INESCAPABLE
HUMAN EFFECT OF THIS ESSAY IN GEOMETRY AND GEOGRAPHY IS TO DESPOIL
COLORED CITIZENS, AND ONLY COLORED CITIZENS, OF THEIR THERETOFORE
ENJOYED VOTING RIGHTS.  THAT WAS NOT COLEGROVE V. GREEN. 

WHEN A STATE EXERCISES POWER WHOLLY WITHIN THE DOMAIN OF STATE
INTEREST, IT IS INSULATED FROM FEDERAL JUDICIAL REVIEW.  BUT SUCH
INSULATION IS NOT CARRIED OVER WHEN STATE POWER IS USED AS AN
INSTRUMENT FOR CIRCUMVENTING A FEDERALLY PROTECTED RIGHT.  THIS
PRINCIPLE HAS HAD MANY APPLICATIONS.   IT HAS LONG BEEN RECOGNIZED IN
CASES WHICH HAVE PROHIBITED A STATE FROM EXPLOITING A POWER
ACKNOWLEDGED TO BE ABSOLUTE IN AN ISOLATED CONTEXT TO JUSTIFY THE
IMPOSITION OF AN "UNCONSTITUTIONAL CONDITION."  WHAT THE COURT HAS SAID
IN THOSE CASES IS EQUALLY APPLICABLE HERE, VIZ., THAT "ACTS GENERALLY
LAWFUL MAY BECOME UNLAWFUL WHEN DONE TO ACCOMPLISH AN UNLAWFUL END,
UNITED STATES V. READING CO., 226 U.S. 324, 357, AND A CONSTITUTIONAL
POWER CANNOT BE USED BY WAY OF CONDITION TO ATTAIN AN UNCONSTITUTIONAL
RESULT."  WESTERN UNION TELEGRAPH CO. V. FOSTER, 247 U.S. 105, 114. 
THE PETITIONERS ARE ENTITLED TO PROVE THEIR ALLEGATIONS AT TRIAL. 

FOR THESE REASONS, THE PRINCIPAL CONCLUSIONS OF THE DISTRICT COURT
AND THE COURT OF APPEALS ARE CLEARLY ERRONEOUS AND THE DECISION BELOW
MUST BE REVERSED. 

MR. JUSTICE DOUGLAS, WHILE JOINING THE OPINION OF THE COURT, ADHERES
TO THE DISSENTS IN COLEGROVE V. GREEN, 328 U.S. 549, AND SOUTH V.
PETERS, 339 U.S. 276. 

                        APPENDIX TO OPINION OF THE COURT. 

CHART SHOWING TUSKEGEE, ALABAMA, BEFORE AND AFTER ACT 140 (CHART
OMITTED). 

MR. JUSTICE WHITTAKER, CONCURRING. 

I CONCUR IN THE COURT'S JUDGMENT, BUT NOT IN THE WHOLE OF ITS
OPINION.  IT SEEMS TO ME THAT THE DECISION SHOULD BE RESTED NOT ON THE
FIFTEENTH AMENDMENT, BUT RATHER ON THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION.  I AM DOUBTFUL THAT THE
AVERMENTS OF THE COMPLAINT, TAKEN FOR PRESENT PURPOSES TO BE TRUE, SHOW
A PURPOSE BY ACT NO. 140 TO ABRIDGE PETITIONERS'"RIGHT ...  TO VOTE,"
IN THE FIFTEENTH AMENDMENT SENSE.  IT SEEMS TO ME THAT THE "RIGHT  ...
TO VOTE" THAT IS GUARANTEED BY THE FIFTEENTH AMENDMENT IS BUT THE SAME
RIGHT TO VOTE AS IS ENJOYED BY ALL OTHERS WITHIN THE SAME ELECTION
PRECINCT, WARD OR OTHER POLITICAL DIVISION.  AND, INASMUCH AS NO ONE
HAS THE RIGHT TO VOTE IN A POLITICAL DIVISION, OR IN A LOCAL ELECTION
CONCERNING ONLY AN AREA IN WHICH HE DOES NOT RESIDE, IT WOULD SEEM TO
FOLLOW THAT ONE'S RIGHT TO VOTE IN DIVISION A IS NOT ABRIDGED BY A
REDISTRICTING THAT PLACES HIS RESIDENCE IN DIVISION B IF HE THERE
ENJOYS THE SAME VOTING PRIVILEGES AS ALL OTHERS IN THAT DIVISION, EVEN
THOUGH THE REDISTRICTING WAS DONE BY THE STATE FOR THE PURPOSE OF
PLACING A RACIAL GROUP OF CITIZENS IN DIVISION B RATHER THAN A. 

BUT IT DOES SEEM CLEAR TO ME THAT ACCOMPLISHMENT OF A STATE'S PURPOSE
- TO USE THE COURT'S PHRASE - OF "FENCING NEGRO CITIZENS OUT OF"
DIVISION A AND INTO DIVISION B IS AN UNLAWFUL SEGREGATION OF RACES OF
CITIZENS, IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, BROWN V. BOARD OF EDUCATION, 347 U.S. 483; COOPER V. AARON,
358 U.S. 1; AND, AS STATED, I WOULD THINK THE DECISION SHOULD BE RESTED
ON THAT GROUND - WHICH, INCIDENTALLY, CLEARLY WOULD NOT INVOLVE, JUST
AS THE CITED CASES DID NOT INVOLVE, THE COLEGROVE PROBLEM. 
..END :























CHAUNT V. UNITED STATES 364 U.S. 350 


NO. 22.  ARGUED OCTOBER 17, 1960 - DECIDED NOVEMBER 14, 1960 - 270 F.2D
179, REVERSED AND CAUSE REMANDED. 


UNDER SEC. 340(A) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, AS
AMENDED, THE UNITED STATES SUED TO REVOKE THE ORDER ADMITTING
PETITIONER TO CITIZENSHIP, ON THE GROUND THAT IT HAD BEEN PROCURED "BY
CONCEALMENT OF A MATERIAL FACT OR BY WILLFUL MISREPRESENTATION."  THE
COMPLAINT ALLEGED, AND THE DISTRICT COURT FOUND, THAT PETITIONER HAD
CONCEALED MEMBERSHIP IN THE COMMUNIST PARTY, A LACK OF INTENT TO
RENOUNCE FOREIGN ALLEGIANCE, AND A RECORD OF ARRESTS; AND IT REVOKED
HIS CITIZENSHIP.  THE COURT OF APPEALS AFFIRMED, REACHING ONLY THE
QUESTION OF CONCEALMENT OF THE ARRESTS, WHICH OCCURRED MORE THAN FIVE
YEARS BEFORE PETITIONER'S NATURALIZATION AND WERE FOR DISTRIBUTING
HANDBILLS, MAKING A SPEECH IN A PUBLIC PARK, AND A BREACH OF THE
PEACE.  HELD:  ON THE RECORD IN THIS CASE CONCERNING THE ARRESTS, THE
GOVERNMENT FAILED TO SHOW BY CLEAR, UNEQUIVOCAL, AND CONVINCING
EVIDENCE EITHER (1) THAT FACTS WERE SUPPRESSED WHICH, IF KNOWN, WOULD
HAVE WARRANTED DENIAL OF CITIZENSHIP, OR (2) THAT THEIR DISCLOSURE
MIGHT HAVE BEEN USEFUL IN AN INVESTIGATION POSSIBLY LEADING TO THE
DISCOVERY OF OTHER FACTS WARRANTING DENIAL OF CITIZENSHIP.  PP. 350
356. 

CHAUNT V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
HARLAN. 

PETITIONER, A NATIVE OF HUNGARY, WAS ADMITTED TO CITIZENSHIP BY A
DECREE OF THE DISTRICT COURT IN 1940.  RESPONDENT FILED A COMPLAINT TO
REVOKE AND SET ASIDE THAT ORDER AS AUTHORIZED BY SEC. 340(A) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 260, AS AMENDED, 68
STAT. 1232, 8 U.S.C. SEC. 1451(A), ON THE GROUND THAT IT HAD BEEN
PROCURED "BY CONCEALMENT OF A MATERIAL FACT OR BY WILLFUL
MISREPRESENTATION."  (FN1)  THE COMPLAINT STATED THAT PETITIONER HAD
FALSELY DENIED MEMBERSHIP IN THE COMMUNIST PARTY AND THAT BY VIRTUE OF
THAT MEMBERSHIP HE LACKED THE REQUISITE ATTACHMENT TO THE CONSTITUTION,
ETC., AND THE INTENT TO RENOUNCE FOREIGN ALLEGIANCE.  IT ALSO ALLEGED
THAT PETITIONER HAD PROCURED HIS NATURALIZATION BY CONCEALING AND
MISREPRESENTING A RECORD OF ARRESTS.  THE DISTRICT COURT CANCELLED
PETITIONER'S NATURALIZATION, FINDING THAT HE HAD CONCEALED AND
MISREPRESENTED THREE MATTERS - HIS ARRESTS, HIS MEMBERSHIP IN THE
COMMUNIST PARTY, AND HIS ALLEGIANCE.  THE COURT OF APPEALS AFFIRMED,
REACHING ONLY THE QUESTION OF THE CONCEALMENT OF THE ARRESTS.  270 F.2D
179.  THE CASE IS HERE ON A WRIT OF CERTIORARI.  362 U.S. 901. 

ONE QUESTION, ON A FORM PETITIONER FILLED OUT IN CONNECTION WITH HIS
PETITION FOR NATURALIZATION, ASKED IF HE HAD EVER BEEN "ARRESTED OR
CHARGED WITH VIOLATION OF ANY LAW OF THE UNITED STATES OR STATE OR ANY
CITY ORDINANCE OR TRAFFIC REGULATION" AND IF SO TO GIVE FULL
PARTICULARS.  TO THIS QUESTION PETITIONER ANSWERED "NO."  THERE WAS
EVIDENCE THAT WHEN HE WAS QUESTIONED UNDER OATH BY AN EXAMINER HE GAVE
THE SAME ANSWER.  THERE WAS ALSO EVIDENCE THAT IF HIS ANSWER HAD BEEN
"YES," THE INVESTIGATIVE UNIT OF THE IMMIGRATION SERVICE WOULD CHECK
WITH THE AUTHORITIES AT THE PLACES WHERE THE ARRESTS OCCURRED "TO
ASCERTAIN  ...  WHETHER THE FULL FACTS WERE STATED." 

THE DISTRICT COURT FOUND THAT FROM 10 TO 11 YEARS BEFORE PETITIONER
WAS NATURALIZED HE HAD BEEN ARRESTED THREE TIMES AS FOLLOWS: 

(1)  ON JULY 30, 1929, HE WAS ARRESTED FOR DISTRIBUTING HANDBILLS IN
NEW HAVEN, CONNECTICUT, IN VIOLATION OF AN ORDINANCE.  HE PLEADED NOT
GUILTY AND WAS DISCHARGED. 

(2)  ON DECEMBER 21, 1929, HE WAS ARRESTED FOR VIOLATING THE PARK
REGULATIONS IN NEW HAVEN, CONNECTICUT, BY MAKING "AN ORATION, HARANGUE,
OR OTHER PUBLIC DEMONSTRATION IN NEW HAVEN GREEN, OUTSIDE OF THE
CHURCHES."  PETITIONER PLEADED NOT GUILTY.  DISPOSITION OF THE CHARGE
IS NOT CLEAR, THE NOTATION ON THE COURT RECORD READING "FOUND J.S." 
WHICH RESPONDENT SUGGESTS MAY MEAN "JUDGMENT SUSPENDED" AFTER A FINDING
OF GUILT. 

(3)  ON MARCH 11, 1930, HE WAS AGAIN ARRESTED IN NEW HAVEN, AND THIS
TIME CHARGED WITH "GENERAL BREACH OF THE PEACE."  HE WAS FOUND GUILTY
BY THE CITY COURT AND FINED $25.  HE TOOK AN APPEAL AND THE RECORDS
SHOW "NOLLED APRIL 7, 1930." 

ACQUISITION OF AMERICAN CITIZENSHIP IS A SOLEMN AFFAIR.  FULL AND
TRUTHFUL RESPONSE TO ALL RELEVANT QUESTIONS REQUIRED BY THE
NATURALIZATION PROCEDURE IS, OF COURSE, TO BE EXACTED, AND TEMPORIZING
WITH THE TRUTH MUST BE VIGOROUSLY DISCOURAGED.  FAILURE TO GIVE FRANK,
HONEST, AND UNEQUIVOCAL ANSWERS TO THE COURT WHEN ONE SEEKS
NATURALIZATION IS A SERIOUS MATTER.  COMPLETE REPLIES ARE ESSENTIAL SO
THAT THE QUALIFICATIONS OF THE APPLICANT OR HIS LACK OF THEM MAY BE
ASCERTAINED.  SUPPRESSED OR CONCEALED FACTS, IF KNOWN, MIGHT IN AND OF
THEMSELVES JUSTIFY DENIAL OF CITIZENSHIP.  OR DISCLOSURE OF THE TRUE
FACTS MIGHT HAVE LED TO THE DISCOVERY OF OTHER FACTS WHICH WOULD
JUSTIFY DENIAL OF CITIZENSHIP. 

ON THE OTHER HAND, IN VIEW OF THE GRAVE CONSEQUENCES TO THE CITIZEN,
NATURALIZATION DECREES ARE NOT LIGHTLY TO BE SET ASIDE - THE EVIDENCE
MUST INDEED BE "CLEAR, UNEQUIVOCAL, AND CONVINCING" AND NOT LEAVE "THE
ISSUE  ...  IN DOUBT."  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118,
125, 158; BAUMGARTNER V. UNITED STATES, 322 U.S. 665, 670.  THE ISSUE
IN THESE CASES IS SO IMPORTANT TO THE LIBERTY OF THE CITIZEN THAT THE
WEIGHT NORMALLY GIVEN CONCURRENT FINDINGS OF TWO LOWER COURTS DOES NOT
PRECLUDE RECONSIDERATION HERE, FOR WE DEAL WITH "JUDGMENTS LYING CLOSE
TO OPINION REGARDING THE WHOLE NATURE OF OUR GOVERNMENT AND THE DUTIES
AND IMMUNITIES OF CITIZENSHIP."  BAUMGARTNER V. UNITED STATES, SUPRA,
671.  AND SEE KLAPPROTT V. UNITED STATES, 355 U.S. 601, 612 AND
(CONCURRING OPINION) 617. 

WHILE DISCLOSURE OF THEM WAS PROPERLY EXACTED, THE ARRESTS IN THESE
CASES WERE NOT REFLECTIONS ON THE CHARACTER OF THE MAN SEEKING
CITIZENSHIP.  THE STATUTE IN FORCE AT THE TIME OF HIS NATURALIZATION
REQUIRED THAT "HE HAS BEHAVED AS A PERSON OF GOOD MORAL CHARACTER,
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES,
AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE UNITED STATES"
DURING THE PREVIOUS FIVE YEARS.  (FN2)  THESE ARRESTS WERE MADE SOME
YEARS PRIOR TO THE CRITICAL FIVE-YEAR PERIOD.  THEY DID NOT, MOREOVER,
INVOLVE MORAL TURPITUDE WITHIN THE MEANING OF THE LAW.  CF.  JORDAN V.
DE GEORGE, 341 U.S. 223.  NO FRAUDULENT CONDUCT WAS CHARGED.  THEY
INVOLVED DISTRIBUTING HANDBILLS, MAKING A SPEECH, AND A BREACH OF THE
PEACE.  IN ONE INSTANCE HE WAS DISCHARGED, IN ONE INSTANCE THE
PROSECUTION WAS "NOLLED," AND IN THE OTHER (FOR MAKING A SPEECH IN A
PARK IN VIOLATION OF CITY REGULATIONS) HE APPARENTLY RECEIVED A
SUSPENDED SENTENCE.  THE TOTALITY OF THE CIRCUMSTANCES SURROUNDING THE
OFFENSES CHARGED MAKES THEM OF EXTREMELY SLIGHT CONSEQUENCE.  HAD THEY
INVOLVED MORAL TURPITUDE OR ACTS DIRECTED AT THE GOVERNMENT, HAD THEY
INVOLVED CONDUCT WHICH EVEN PERIPHERALLY TOUCHED TYPES OF ACTIVITY
WHICH MIGHT DISQUALIFY ONE FROM CITIZENSHIP, A DIFFERENT CASE WOULD BE
PRESENTED.  ON THIS RECORD THE NATURE OF THESE ARRESTS, THE CRIMES
CHARGED, AND THE DISPOSITION OF THE CASES DO NOT BRING THEM,
INHERENTLY, EVEN CLOSE TO THE REQUIREMENT OF "CLEAR, UNEQUIVOCAL, AND
CONVINCING" EVIDENCE THAT NATURALIZATION WAS ILLEGALLY PROCURED WITHIN
THE MEANING OF SEC. 340(A) OF THE IMMIGRATION AND NATIONALITY ACT. 

IT IS ARGUED, HOWEVER, THAT DISCLOSURE OF THE ARRESTS MADE IN NEW
HAVEN, CONNECTICUT, IN THE YEARS 1929 AND 1930 WOULD HAVE LED TO A NEW
HAVEN INVESTIGATION AT WHICH LEADS TO OTHER EVIDENCE - MORE RELEVANT
AND MATERIAL THAN THE ARRESTS - MIGHT HAVE BEEN OBTAINED.  HIS
RESIDENCE IN NEW HAVEN WAS FROM FEBRUARY 1929 TO NOVEMBER 1930.  SINCE
THAT PERIOD WAS MORE THAN FIVE YEARS BEFORE HIS PETITION FOR
NATURALIZATION, THE NAME OF HIS EMPLOYER AT THAT TIME WAS NOT REQUIRED
BY THE FORM PREPARED BY THE SERVICE.  IT IS NOW SAID, HOWEVER, THAT IF
THE ARRESTS HAD BEEN DISCLOSED AND INVESTIGATED, THE SERVICE MIGHT WELL
HAVE DISCOVERED THAT PETITIONER IN 1929 WAS "A DISTRICT ORGANIZER" OF
THE COMMUNIST PARTY IN CONNECTICUT.  ONE WITNESS IN THIS
DENATURALIZATION PROCEEDING TESTIFIED THAT SUCH WAS THE FACT.  AN
ARREST, THOUGH BY NO MEANS PROBATIVE OF ANY GUILT OR WRONGDOING, IS
SUFFICIENTLY SIGNIFICANT AS AN EPISODE IN A MAN'S LIFE THAT IT MAY
OFTEN BE MATERIAL AT LEAST TO FURTHER ENQUIRY.   WE DO NOT MINIMIZE THE
IMPORTANCE OF THAT DISCLOSURE.  IN THIS CASE, HOWEVER, WE ARE ASKED TO
BASE MATERIALITY ON THE TENUOUS LINE OF INVESTIGATION THAT MIGHT HAVE
LED FROM THE ARRESTS TO THE ALLEGED COMMUNISTIC AFFILIATIONS, WHEN AS A
MATTER OF FACT PETITIONER IN THIS SAME APPLICATION DISCLOSED THAT HE
WAS AN EMPLOYEE AND MEMBER OF THE INTERNATIONAL WORKERS' ORDER, WHICH
IS SAID TO BE CONTROLLED BY THE COMMUNIST PARTY.  IN CONNECTION WITH
PETITIONER'S DENIAL OF SUCH AFFILIATIONS, RESPONDENT ARGUES THAT SINCE
IT WAS TESTIFIED THAT THE IWO WAS AN ORGANIZATION CONTROLLED AND
DOMINATED BY THE COMMUNIST PARTY, IT IS REASONABLE TO INFER THAT
PETITIONER HAD THOSE AFFILIATIONS AT THE TIME OF THE APPLICATION.  BUT
BY THE SAME TOKEN IT WOULD SEEM THAT A MUCH LESS TENUOUS AND
SPECULATIVE NEXUS WITH THE COMMUNIST PARTY, IF IT BE SUCH, WAS THEREBY
DISCLOSED AND WAS AVAILABLE FOR FURTHER INVESTIGATION IF IT HAD BEEN
DEEMED APPROPRIATE AT THE TIME.  CF. UNITED STATES V. ANASTASIO, 226
F.2D 912.  IT IS SAID THAT IWO DID NOT BECOME TAINTED WITH COMMUNIST
CONTROL UNTIL 1941.  WE READ THE RECORD DIFFERENTLY.  IF THE
GOVERNMENT'S CASE IS MADE OUT, THAT TAINT EXTENDED BACK AT LEAST AS FAR
AS 1939.  HAD THAT DISCLOSURE NOT BEEN MADE IN THE APPLICATION, FAILURE
TO REPORT THE ARRESTS WOULD HAVE HAD GREATER SIGNIFICANCE.  IT COULD
THEN BE FORCEFULLY ARGUED THAT FAILURE TO DISCLOSE THE ARRESTS WAS PART
AND PARCEL OF A PROJECT TO CONCEAL A COMMUNIST PARTY AFFILIATION.  BUT
ON THIS RECORD, THE FAILURE TO REPORT THE THREE ARRESTS OCCURRING FROM
10 TO 11 YEARS PREVIOUSLY IS NEUTRAL.  WE DO NOT SPECULATE AS TO WHY
THEY WERE NOT DISCLOSED.  WE ONLY CONCLUDE THAT, IN THE CIRCUMSTANCES
OF THIS CASE, THE GOVERNMENT HAS FAILED TO SHOW BY "CLEAR, UNEQUIVOCAL,
AND CONVINCING" EVIDENCE EITHER (1) THAT FACTS WERE SUPPRESSED WHICH,
IF KNOWN, WOULD HAVE WARRANTED DENIAL OF CITIZENSHIP OR (2) THAT THEIR
DISCLOSURE MIGHT HAVE BEEN USEFUL IN AN INVESTIGATION POSSIBLY LEADING
TO THE DISCOVERY OF OTHER FACTS WARRANTING DENIAL OF CITIZENSHIP. 

THERE ARE ISSUES IN THE CASE WHICH WE DO NOT REACH AND WHICH WERE NOT
PASSED UPON BY THE COURT OF APPEALS.  ACCORDINGLY THE JUDGMENT WILL BE
REVERSED AND THE CAUSE REMANDED TO IT SO THAT THE OTHER QUESTIONS
RAISED IN THE APPEAL MAY BE CONSIDERED.  IT IS SO ORDERED. 

FN1  THE SECTION PROVIDES IN RELEVANT PART: 

"IT SHALL BE THE DUTY OF THE UNITED STATES ATTORNEYS FOR THE
RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD CAUSE THEREFOR, TO
INSTITUTE PROCEEDINGS IN ANY COURT SPECIFIED IN SUBSECTION (A) OF
DISTRICT IN WHICH THE NATURALIZED CITIZEN MAY RESIDE AT THE TIME OF
BRINGING SUIT, FOR THE PURPOSE OF REVOKING AND SETTING ASIDE THE ORDER
ADMITTING SUCH PERSON TO CITIZENSHIP AND CANCELING THE CERTIFICATE OF
NATURALIZATION ON THE GROUND THAT SUCH ORDER AND CERTIFICATE OF
NATURALIZATION WERE PROCURED BY CONCEALMENT OF A MATERIAL FACT OR BY
WILLFUL MISREPRESENTATION, AND SUCH REVOCATION AND SETTING ASIDE OF THE
ORDER ADMITTING SUCH PERSON TO CITIZENSHIP AND SUCH CANCELING OF
CERTIFICATE OF NATURALIZATION SHALL BE EFFECTIVE AS OF THE ORIGINAL
DATE OF THE ORDER AND CERTIFICATE, RESPECTIVELY  ...  ." 

FN2  SECTION 4 OF THE NATURALIZATION ACT OF JUNE 29, 1906, 34 STAT.
598, AS AMENDED, 45 STAT. 1513-1514. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE WHITTAKER AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

PETITIONER SWORE IN HIS APPLICATION FOR NATURALIZATION THAT HE HAD
NEVER BEEN UNDER ARREST WHEN IN FACT HE HAD BEEN ARRESTED IN NEW HAVEN,
CONNECTICUT, ON THREE SEPARATE OCCASIONS WITHIN AN EIGHT-MONTH PERIOD. 
THE ARRESTS WERE FOR DISTRIBUTING HANDBILLS IN A PUBLIC STREET, MAKING
"AN ORATION, HARANGUE, OR OTHER PUBLIC DEMONSTRATION" IN A PUBLIC PARK
AND A "GENERAL BREACH OF THE PEACE."  BOTH THE DISTRICT COURT AND THE
COURT OF APPEALS HAVE FOUND THAT PETITIONER'S FALSIFICATION "WAS AN
INTENTIONAL CONCEALMENT OF A MATERIAL FACT AND A WILLFUL
MISREPRESENTATION WHICH FORECLOSED THE IMMIGRATION AND NATURALIZATION
SERVICE AND THE DISTRICT COURT FROM MAKING A FURTHER INVESTIGATION AS
TO WHETHER HE HAD ALL THE QUALIFICATIONS FOR CITIZENSHIP  ...  ." 
THESE FINDINGS, AS SUCH, ARE NOT DISPUTED.  IT IS NOWHERE SUGGESTED,
FOR EXAMPLE, THAT THE PETITIONER'S FALSEHOODS WERE THE RESULT OF
INADVERTENCE OR FORGETFULNESS - THAT THEY WERE ANYTHING BUT DELIBERATE
LIES.  THIS COURT, HOWEVER, BRUSHES THESE FINDINGS ASIDE ON THE GROUND
(FN1) THAT THE ARRESTS "WERE NOT REFLECTIONS ON THE CHARACTER OF THE
MAN SEEKING CITIZENSHIP."  THE SWISS PHILOSOPHER AMIEL TELLS US THAT
"CHARACTER IS AN HISTORICAL FRUIT AND IS THE RESULT OF A MAN'S
BIOGRAPHY."  PETITIONER'S PAST, IF TRUTHFULLY TOLD IN HIS APPLICATION,
WOULD HAVE BEEN AN ODOROUS ONE.  SO BAD THAT HE DARED NOT REVEAL IT.
FOR THE COURT TO REWARD HIS DISHONESTY IS NOTHING SHORT OF AN OPEN
INVITATION TO FALSE SWEARING TO ALL WHO SEEK THE HIGH PRIVILEGE OF
AMERICAN CITIZENSHIP. 

THE COURT FIRST SAYS THAT ARRESTS OF THIS NATURE, "THE CRIMES
CHARGED, AND THE DISPOSITION OF THE CASES DO NOT BRING THEM,
INHERENTLY, EVEN CLOSE TO THE REQUIREMENT OF 'CLEAR, UNEQUIVOCAL, AND
CONVINCING' EVIDENCE THAT NATURALIZATION WAS ILLEGALLY PROCURED."  THE
COURT, OF COURSE, KNOWS THAT THIS IS NOT THE APPLICABLE TEST WHERE ONE
HAS DELIBERATELY FALSIFIED HIS PAPERS AND THUS FORECLOSED FURTHER
INVESTIGATION.  THIS BASIS FOR THE REVERSAL, THEREFORE, MISSES THE
POINT INVOLVED AND SHOULD HAVE BEEN OF NO CONSEQUENCE HERE. 

THE TEST IS NOT WHETHER THE TRUTHFUL ANSWER IN ITSELF, OR THE FACTS
DISCOVERED THROUGH AN INVESTIGATION PROMPTED BY THAT ANSWER, WOULD HAVE
JUSTIFIED A DENIAL OF CITIZENSHIP.  IT IS WHETHER THE FALSIFICATION, BY
MISLEADING THE EXAMINING OFFICER, FORESTALLED AN INVESTIGATION WHICH
MIGHT HAVE RESULTED IN THE DEFEAT OF PETITIONER'S APPLICATION FOR
NATURALIZATION.  THE COURTS OF APPEALS ARE WITHOUT DISAGREEMENT ON THIS
POINT (FN2) AND IT IS, OF COURSE, A NECESSARY RULE IN ORDER TO PREVENT
THE MAKING OF MISREPRESENTATIONS FOR THE VERY PURPOSE OF FORESTALLING
INQUIRY AS TO ELIGIBILITY.  THE QUESTION AS TO ARRESTS IS HIGHLY
PERTINENT TO THE ISSUE OF SATISFACTORY MORAL CHARACTER, THE SINE QUA
NON OF GOOD CITIZENSHIP.  PETITIONER'S FALSE ANSWER TO THE QUESTION
SHUT OFF THAT LINE OF INQUIRY AND WAS A FRAUD ON THE GOVERNMENT AND THE
NATURALIZATION COURT.  THE MAJORITY MAKES MUCH OF THE FACT THAT THE
ARRESTS OCCURRED PRIOR TO THE FIVE-YEAR STATUTORY PERIOD OF GOOD
BEHAVIOR, BUT THAT IS OF NO CONSEQUENCE.  CONCEALMENT AT THE VERY TIME
OF NATURALIZATION IS THE ISSUE HERE AND THAT ACT OF DELIBERATE
FALSIFICATION BEFORE AN OFFICER OF THE GOVERNMENT CLEARLY RELATES TO
THE PETITIONER'S GENERAL MORAL CHARACTER.  INDEED, THE CONGRESS HAS
LONG MADE IT A FELONY PUNISHABLE BY IMPRISONMENT FOR A MAXIMUM OF FIVE
YEARS.  CERTAINLY THIS DOES NOT FALL WITHIN A CLASS OF PECCADILLOES
WHICH MAY BE OVERLOOKED AS BEING WITHOUT "REFLECTIONS ON THE CHARACTER
OF THE MAN SEEKING CITIZENSHIP."  IN FACT IT STRIPS AN OFFENDER OF ALL
CIVIL RIGHTS AND LEAVES A SHATTERED CHARACTER THAT ONLY A PRESIDENTIAL
PARDON CAN MEND. 

THE COURT CONCLUDES THAT THE FALSE DENIAL OF PRIOR ARRESTS WAS
"NEUTRAL" BECAUSE THE PETITIONER REVEALED IN HIS PRELIMINARY
APPLICATION THAT HE WAS AN EMPLOYEE OF THE INTERNATIONAL WORKERS ORDER,
WHICH THE COURT ADDS, "IS SAID TO BE CONTROLLED BY THE COMMUNIST
PARTY."  WHAT THE COURT FAILS TO POINT OUT IS THAT THE SOLE EVIDENCE,
IN THIS RECORD, AS TO THE INTERNATIONAL WORKERS ORDER WAS PRESENTED IN
1955, 15 YEARS AFTER PETITIONER'S DECEPTION OF THE EXAMINER.  THERE IS
NO EVIDENCE THAT THE EXAMINER KNEW ANYTHING ABOUT THAT ORGANIZATION
OTHER THAN WHAT PETITIONER HAD TOLD HIM.  AND THERE IS NOTHING WHATEVER
IN THE RECORD THAT WOULD HAVE EVEN INDICATED THAT I.W.O. WAS
COMMUNISTIC IN 1940.  WHAT WAS THERE TO PROMPT THE EXAMINER TO
INVESTIGATE IT AT THAT TIME?  THE TRUTH OF THE MATTER IS THAT IN HIS
FINAL NATURALIZATION APPLICATION PETITIONER SAID HE WAS EMPLOYED BY THE
"FRATERNAL BENEFIT SOCIETY OF INTERNATIONAL WORKERS ORDER," A NAME
WHICH WOULD LEAD ONE TO BELIEVE THAT IT WAS AN INSURANCE SOCIETY. 
SURELY THE COURT IS NOT CHARGING THE EXAMINER AND THE NATURALIZATION
COURT WITH THE DERELICTION OF ADMITTING PETITIONER TO OUR CITIZENSHIP
KNOWING THAT HE WAS CONNECTED WITH A COMMUNIST ORGANIZATION.  IN FACT
THE TESTIMONY AT THE TRIAL INDICATES THAT THE COMMUNIST PARTY DID NOT
TAKE OVER THE LEADERSHIP OF THE INTERNATIONAL WORKERS ORDER UNTIL 1941,
(FN3) A YEAR AFTER PETITIONER WAS NATURALIZED.  IT IS ALSO WELL TO
REMEMBER THAT THE ATTORNEY GENERAL DID NOT LIST IT AS SUBVERSIVE UNTIL
1947, ALTHOUGH LISTS OF SUBVERSIVE ORGANIZATIONS HAD BEEN ISSUED PRIOR
TO THAT DATE. 

AS I READ THE RECORD, IT CLEARLY SUPPORTS THE FINDINGS OF THE TWO
COURTS BELOW.  EVEN IF PETITIONER HAD TOLD THE TRUTH, AND THE CONDUCT
CAUSING THE ARRESTS WAS FOUND NOT TO RELATE TO HIS PRESENT FITNESS FOR
NATURALIZATION, IT DOES NOT FOLLOW THAT CITIZENSHIP WOULD HAVE BEEN
AWARDED.  IT MIGHT WELL HAVE BEEN THAT IN CHECKING ON THE HANDBILLS,
THE HARANGUE IN THE PUBLIC PARK, AND THE GENERAL BREACH OF THE PEACE
THE INVESTIGATOR WOULD HAVE BEEN LED TO DISCOVER THAT PETITIONER WAS,
IN 1940, A LEADER IN THE COMMUNIST PARTY.  I THINK IT MORE LOGICAL THAN
NOT THAT THE GOVERNMENT WOULD HAVE DISCOVERED PETITIONER'S COMMUNIST
AFFILIATIONS THROUGH SUCH AN INVESTIGATION, AND THAT THE DELIBERATE
FALSIFICATION IN 1940 FORESTALLED THIS REVELATION FOR 15 YEARS.  BUT
WHETHER OR NOT THAT BE THE CASE, THE GOVERNMENT WAS ENTITLED TO AN
HONEST ANSWER FROM ONE WHO SOUGHT ADMISSION TO ITS CITIZENSHIP.  WE
SHOULD EXACT THE HIGHEST STANDARDS OF PROBITY AND FITNESS FROM ALL
APPLICANTS.  AMERICAN CITIZENSHIP IS A VALUABLE RIGHT.  IT IS PRIZED
HIGHLY BY US WHO HAVE IT AND IT IS SOUGHT EAGERLY BY MILLIONS WHO DO
NOT.  IT IS ASKING LITTLE ENOUGH OF THOSE WHO WOULD BE VESTED WITH ITS
PRIVILEGES TO DEMAND THAT THEY TELL THE TRUTH.  I WOULD AFFIRM. 

FN1  THE COURT SAYS THAT "THE TOTALITY OF THE CIRCUMSTANCES
SURROUNDING THE OFFENSES CHARGED MAKES THEM OF EXTREMELY SLIGHT
CONSEQUENCE."  HOWEVER, IT OVERLOOKS THE FACT THAT NEITHER THE CONTENT
OF THE HANDBILLS OR OF THE HARANGUE IN THE PARK NOR THE NATURE OF THE
CONDUCT LEADING TO THE CONVICTION IN THE CITY COURT FOR A GENERAL
BREACH OF THE PEACE APPEARS IN THE RECORD.  TIME HAS SERVED PETITIONER
WELL, FOR EVEN THE DISPOSITION OF THE CASES IS NOT TOO CLEAR.  BUT TO
EXTRAPOLATE THE CHARACTER OF PETITIONER'S CONDUCT SOLELY FROM THESE
MEAGER CIRCUMSTANCES SMACKS OF THE PSYCHIC.  MOREOVER, TO SAY THAT THE
OFFENSES "DID NOT  ...  INVOLVE MORAL TURPITUDE" IS GRATUITOUS.  THIS
COURT HAS NEVER SO HELD. 

FN2  CORRADO V. UNITED STATES, 227 F.2D 780 (C.A. 6TH CIR.), CERT.
DENIED, 351 U.S. 925; UNITED STATES V. MONTALBANO, 236 F.2D 757 (C.A.
3D CIR.), CERT. DENIED SUB NOM.  GENOVESE V. UNITED STATES, 352 U.S.
952; UNITED STATES V. LUMANTES, 139 F. SUPP. 574 (D.C.N.D. CALIF.),
AFF'D PER CURIAM, 232 F.2D 216 (C.A. 9TH CIR.); STACHER V. UNITED
STATES, 258 F.2D 112 (C.A. 9TH CIR.), CERT. DENIED, 358 U.S. 907;
UNITED STATES V. ACCARDO, 113 F. SUPP. 783 (D.C.D.N.J.), AFF'D PER
CURIAM, 208 F.2D 632 (C.A. 3D CIR.), CERT. DENIED, 347 U.S. 952.  CF.
UNITED STATES V. SWEET, 106 F. SUPP. 634, 635 (D.C.E.D. MICH.), AFF'D
PER CURIAM, 211 F.2D 118 (C.A. 6TH CIR.), CERT. DENIED, 348 U.S. 817. 

FN3  THE SOLE WITNESS ON THIS POINT TESTIFIED THAT "IN 1941  ...  A
NUMBER OF US FROM THE COMMUNIST PARTY WERE SENT INTO THAT ORGANIZATION
BY THE COMMUNIST PARTY INTO LEADERSHIP TO GIVE MORE POLITICAL CONTENT
AND STRENGTH AND GUIDANCE FOR THAT ORGANIZATION." 
..END :





KNETSCH V. UNITED STATES 364 U.S. 361 


NO. 23.  ARGUED OCTOBER 17-18, 1960 - DECIDED NOVEMBER 14, 1960 - 272
F.2D 200, AFFIRMED. 


IN 1953, A 60-YEAR-OLD TAXPAYER PURCHASED SINGLE-PREMIUM 30-YEAR
MATURITY DEFERRED ANNUITY SAVINGS BONDS WITH AN AGGREGATE FACE VALUE OF
$4,000,000 FROM A LIFE INSURANCE COMPANY, PAYING ONLY A NOMINAL SUM IN
CASH, GIVING NONRECOURSE NOTES SECURED BY THE BONDS FOR THE BALANCE AND
PAYING A SUBSTANTIAL AMOUNT AS "INTEREST" IN ADVANCE ON THAT
"INDEBTEDNESS."  A FEW DAYS LATER, HE BORROWED FROM THE COMPANY NEARLY
ALL OF THE EXCESS OF THE CASH-SURRENDER VALUE WHICH THE BONDS WOULD
HAVE AT THE END OF THE FIRST CONTRACT YEAR OVER THE AMOUNT OF THE
EXISTING "INDEBTEDNESS" AND AGAIN PAID IN ADVANCE THE "INTEREST" ON
SUCH ADDITIONAL "INDEBTEDNESS."  THESE BORROWINGS AND "INTEREST"
PAYMENTS WERE REPEATED IN 1954 AND 1955, AND THE BONDS WERE SURRENDERED
AND THE INDEBTEDNESS WAS CANCELLED IN 1956.  HELD:  THE AMOUNTS PAID AS
"INTEREST" IN 1953 AND 1954 WERE NOT DEDUCTIBLE FROM THE GROSS INCOME
OF THE TAXPAYER AND HIS WIFE IN THEIR JOINT INCOME TAX RETURNS FOR
THOSE YEARS AS "INTEREST PAID  ...  ON INDEBTEDNESS," WITHIN THE
MEANING OF SEC. 23(B) OF THE INTERNAL REVENUE CODE OF 1939 AND SEC.
163(A) OF THE INTERNAL REVENUE CODE OF 1954.  PP. 362-370. 

(A)  ON THE RECORD IN THIS CASE, IT IS PATENT THAT THE TRANSACTION
BETWEEN THE TAXPAYER AND THE INSURANCE COMPANY WAS A SHAM WHICH CREATED
NO "INDEBTEDNESS" WITHIN THE MEANING OF THOSE SECTIONS OF THE CODES. 
PP. 362-366. 

(B)  CONGRESS DID NOT AUTHORIZE DEDUCTION OF SUCH PAYMENTS BY
ENACTING SEC. 264(A)(2) OF THE INTERNAL REVENUE CODE OF 1954, WHICH
EXPRESSLY DENIES A DEDUCTION FOR AMOUNTS PAID ON INDEBTEDNESS INCURRED
TO PURCHASE OR CARRY A SINGLE-PREMIUM ANNUITY CONTRACT, BUT ONLY AS TO
CONTRACTS PURCHASED AFTER MARCH 1, 1954.  PP. 367-370. 

KNETSCH ET UX. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF WHETHER DEDUCTIONS FROM GROSS
INCOME CLAIMED ON PETITIONERS' 1953 AND 1954 JOINT FEDERAL INCOME TAX
RETURNS, OF $143,465 IN 1953 AND OF $147,105 IN 1954, FOR PAYMENTS MADE
BY PETITIONER, KARL F. KNETSCH, TO SAM HOUSTON LIFE INSURANCE COMPANY,
CONSTITUTED "INTEREST PAID  ...  ON INDEBTEDNESS" WITHIN THE MEANING OF
SEC. 23(B) OF THE INTERNAL REVENUE CODE OF 1939 AND SEC. 163(A) OF THE
INTERNAL REVENUE CODE OF 1954.  (FN1)  THE COMMISSIONER OF INTERNAL
REVENUE DISALLOWED THE DEDUCTIONS AND DETERMINED A DEFICIENCY FOR EACH
YEAR.  THE PETITIONERS PAID THE DEFICIENCIES AND BROUGHT THIS ACTION
FOR REFUND IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CALIFORNIA.  THE DISTRICT COURT RENDERED JUDGMENT FOR THE UNITED
STATES, AND THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED, 272
F.2D 200.  BECAUSE OF A SUGGESTED CONFLICT WITH THE DECISION OF THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT IN UNITED STATES V. BOND, 258
F.2D 577, WE GRANTED CERTIORARI, 361 U.S. 958. 

ON DECEMBER 11, 1953, THE INSURANCE COMPANY SOLD KNETSCH TEN 30-YEAR
MATURITY DEFERRED ANNUITY SAVINGS BONDS, EACH IN THE FACE AMOUNT OF
$400,000 AND BEARING INTEREST AT 2 1/2% COMPOUNDED ANNUALLY.  THE
PURCHASE PRICE WAS $4,004,000.  KNETSCH GAVE THE COMPANY HIS CHECK FOR
$4,000, AND SIGNED $4,000,000 OF NONRECOURSE ANNUITY LOAN NOTES FOR THE
BALANCE.  THE NOTES BORE 3 1/2% INTEREST AND WERE SECURED BY THE
ANNUITY BONDS.  THE INTEREST WAS PAYABLE IN ADVANCE, AND KNETSCH ON THE
SAME DAY PREPAID THE FIRST YEAR'S INTEREST, WHICH WAS $140,000.  UNDER
THE TABLE OF CASH AND LOAN VALUES MADE PART OF THE BONDS, THEIR CASH OR
LOAN VALUE AT DECEMBER 11, 1954, THE END OF THE FIRST CONTRACT YEAR,
WAS TO BE $4,100,000.  THE CONTRACT TERMS, HOWEVER, PERMITTED KNETSCH
TO BORROW ANY EXCESS OF THIS VALUE ABOVE HIS INDEBTEDNESS WITHOUT
WAITING UNTIL DECEMBER 11, 1954.  KNETSCH TOOK ADVANTAGE OF THIS
PROVISION ONLY FIVE DAYS AFTER THE PURCHASE.  ON DECEMBER 16, 1953, HE
RECEIVED FROM THE COMPANY $99,000 OF THE $100,000 EXCESS OVER HIS
$4,000,000 INDEBTEDNESS, FOR WHICH HE GAVE HIS NOTES BEARING 3 1/2%
INTEREST.  THIS INTEREST WAS ALSO PAYABLE IN ADVANCE AND ON THE SAME
DAY HE PREPAID THE FIRST YEAR'S INTEREST OF $3,465.  IN THEIR JOINT
RETURN FOR 1953, THE PETITIONERS DEDUCTED THE SUM OF TWO INTEREST
PAYMENTS, THAT IS $143,465, AS "INTEREST PAID  ...  WITHIN THE TAXABLE
YEAR ON INDEBTEDNESS," UNDER SEC. 23(B) OF THE 1939 CODE. 

THE SECOND CONTRACT YEAR BEGAN ON DECEMBER 11, 1954, WHEN INTEREST IN
ADVANCE OF $143,465 WAS PAYABLE BY KNETSCH ON HIS AGGREGATE
INDEBTEDNESS OF $4,099,000.  KNETSCH PAID THIS AMOUNT ON DECEMBER 27,
1954.  THREE DAYS LATER, ON DECEMBER 30, HE RECEIVED FROM THE COMPANY
CASH IN THE AMOUNT OF $104,000, THE DIFFERENCE LESS $1,000 BETWEEN HIS
THEN $4,099,000 INDEBTEDNESS AND THE CASH OR LOAN VALUE OF THE BONDS OF
$4,204,000 ON DECEMBER 11, 1955.  HE GAVE THE COMPANY APPROPRIATE NOTES
AND PREPAID THE INTEREST THEREON OF $3,640.  IN THEIR JOINT RETURN FOR
THE TAXABLE YEAR 1954 THE PETITIONERS DEDUCTED THE SUM OF THE TWO
INTEREST PAYMENTS, THAT IS $147,105, AS "INTEREST PAID ...  WITHIN THE
TAXABLE YEAR ON INDEBTEDNESS," UNDER SEC. 163(A) OF THE 1954 CODE. 

THE TAX YEARS 1955 AND 1956 ARE NOT INVOLVED IN THIS PROCEEDING, BUT
A RECITAL OF THE EVENTS OF THOSE YEARS IS NECESSARY TO COMPLETE THE
STORY OF THE TRANSACTION.  ON DECEMBER 11, 1955, THE START OF THE THIRD
CONTRACT YEAR, KNETSCH BECAME OBLIGATED TO PAY $147,105 AS PREPAID
INTEREST ON AN INDEBTEDNESS WHICH NOW TOTALLED $4,203,000.  HE PAID
THIS INTEREST ON DECEMBER 28, 1955.  ON THE SAME DATE HE RECEIVED
$104,000 FROM THE COMPANY.  THIS WAS $1,000 LESS THAN THE DIFFERENCE
BETWEEN HIS INDEBTEDNESS AND THE CASH OR LOAN VALUE OF THE BONDS OF
$4,308,000 AT DECEMBER 11, 1956.  AGAIN HE GAVE THE COMPANY NOTES UPON
WHICH HE PREPAID INTEREST OF $3,640.  PETITIONERS CLAIMED A DEDUCTION
OF THEIR 1955 JOINT RETURN FOR THE AGGREGATE OF THE PAYMENTS, OR
$150,745. 

KNETSCH DID NOT GO ON WITH THE TRANSACTION FOR THE FOURTH CONTRACT
YEAR BEGINNING DECEMBER 11, 1956, BUT TERMINATED IT ON DECEMBER 27,
1956.  HIS INDEBTEDNESS AT THAT TIME TOTALLED $4,307,000.  THE CASH OR
LOAN VALUE OF THE BONDS WAS THE $4,308,000 VALUE AT DECEMBER 11, 1956,
WHICH HAD BEEN THE BASIS OF THE "LOAN" OF DECEMBER 28, 1955.  HE
SURRENDERED THE BONDS AND HIS INDEBTEDNESS WAS CANCELED.  HE RECEIVED
THE DIFFERENCE OF $1,000 IN CASH. 

THE CONTRACT CALLED FOR A MONTHLY ANNUITY OF $90,171 AT MATURITY
(WHEN KNETSCH WOULD BE 90 YEARS OF AGE) OR FOR SUCH SMALLER AMOUNT AS
WOULD BE PRODUCED BY THE CASH OR LOAN VALUE AFTER DEDUCTION OF THE THEN
EXISTING INDEBTEDNESS.  IT WAS STIPULATED THAT IF KNETSCH HAD HELD THE
BONDS TO MATURITY AND CONTINUED ANNUALLY TO BORROW THE NET CASH VALUE
LESS $1,000, THE SUM AVAILABLE FOR THE ANNUITY AT MATURITY WOULD BE
$1,000 ($8,388,000 CASH OR LOAN VALUE LESS $8,387,000 OF INDEBTEDNESS),
ENOUGH TO PROVIDE AN ANNUITY OF ONLY $43 PER MONTH. 

THE TRIAL JUDGE MADE FINDINGS THAT "THERE WAS NO COMMERCIAL ECONOMIC
SUBSTANCE TO THE  ... TRANSACTION," THAT THE PARTIES DID NOT INTEND
THAT KNETSCH "BECOME INDEBTED TO SAM HOUSTON," THAT "NO INDEBTEDNESS OF
KNETSCH WAS CREATED BY ANY OF THE  ...  TRANSACTIONS," AND THAT "NO
ECONOMIC GAIN COULD BE ACHIEVED FROM THE PURCHASE OF THESE BONDS
WITHOUT REGARD TO THE TAX CONSEQUENCES  ... ."  HIS CONCLUSION OF LAW,
BASED ON THIS COURT'S DECISION IN DEPUTY V. DU PONT, 308 U.S. 488, WAS
THAT "WHILE IN FORM THE PAYMENTS TO SAM HOUSTON WERE COMPENSATION FOR
THE USE OF FORBEARANCE OF MONEY, THEY WERE NOT IN SUBSTANCE.  AS A
PAYMENT OF INTEREST, THE TRANSACTION WAS A SHAM." 

WE FIRST EXAMINE THE TRANSACTION BETWEEN KNETSCH AND THE INSURANCE
COMPANY TO DETERMINE WHETHER IT CREATED AN "INDEBTEDNESS" WITHIN THE
MEANING OF SEC. 23(B) OF THE 1939 CODE AND SEC. 163(A) OF THE 1954
CODE, OR WHETHER, AS THE TRIAL COURT FOUND, IT WAS A SHAM.  WE PUT
ASIDE A FINDING BY THE DISTRICT COURT THAT KNETSCH'S "ONLY MOTIVE IN
PURCHASING THESE 10 BONDS WAS TO ATTEMPT TO SECURE AN INTEREST
DEDUCTION."  (FN2)  AS WAS SAID IN GREGORY V. HELVERING, 293 U.S. 465,
469:  "THE LEGAL RIGHT OF A TAXPAYER TO DECREASE THE AMOUNT OF WHAT
OTHERWISE WOULD BE HIS TAXES, OR ALTOGETHER AVOID THEM, BY MEANS WHICH
THE LAW PERMITS, CANNOT BE DOUBTED  ...  .  BUT THE QUESTION FOR
DETERMINATION IS WHETHER WHAT WAS DONE, APART FROM THE TAX MOTIVE, WAS
THE THING WHICH THE STATUTE INTENDED." 

WHEN WE EXAMINE "WHAT WAS DONE" HERE, WE SEE THAT KNETSCH PAID THE
INSURANCE COMPANY $294,570 DURING THE TWO TAXABLE YEARS INVOLVED AND
RECEIVED $203,000 BACK IN THE FORM OF "LOANS."  WHAT DID KNETSCH GET
FOR THE OUT-OF-POCKET DIFFERENCE OF $91,570?  IN FORM HE HAD AN ANNUITY
CONTRACT WITH A SO-CALLED GUARANTEED CASH VALUE AT MATURITY OF
$8,388,000, WHICH WOULD PRODUCE MONTHLY ANNUITY PAYMENTS OF $90,171, OR
SUBSTANTIAL LIFE INSURANCE PROCEEDS IN THE EVENT OF HIS DEATH BEFORE
MATURITY.  THIS, AS WE HAVE SEEN, WAS A FICTION, BECAUSE EACH YEAR
KNETSCH'S ANNUAL BORROWINGS KEPT THE NET CASH VALUE, ON WHICH ANY
ANNUITY OR INSURANCE PAYMENTS WOULD DEPEND, AT THE RELATIVE PITTANCE OF
$1,000.  (FN3)  PLAINLY, THEREFORE, KNETSCH'S TRANSACTION WITH THE
INSURANCE COMPANY DID "NOT APPRECIABLY AFFECT HIS BENEFICIAL INTEREST
EXCEPT TO REDUCE HIS TAX  ...  ."  GILBERT V. COMMISSIONER, 248 F.2D
399, 411 (DISSENTING OPINION).  FOR IT IS PATENT THAT THERE WAS NOTHING
OF SUBSTANCE TO BE REALIZED BY KNETSCH FROM THIS TRANSACTION BEYOND A
TAX DEDUCTION.  WHAT HE WAS OSTENSIBLY "LENT" BACK WAS IN REALITY ONLY
THE REBATE OF A SUBSTANTIAL PART OF THE SO-CALLED "INTEREST" PAYMENTS. 
THE $91,570 DIFFERENCE RETAINED BY THE COMPANY WAS ITS FEE FOR
PROVIDING THE FACADE OF "LOANS" WHEREBY THE PETITIONERS SOUGHT TO
REDUCE THEIR 1953 AND 1954 TAXES IN THE TOTAL SUM OF $233,297.68. 
THERE MAY WELL BE SINGLE-PREMIUM ANNUITY ARRANGEMENTS WITH NONTAX
SUBSTANCE WHICH CREATE AN "INDEBTEDNESS" FOR THE PURPOSES OF SEC. 23(B)
OF THE 1939 CODE AND SEC. 163(A) OF THE 1954 CODE.  BUT THIS ONE IS A
SHAM.  (FN4) 

THE PETITIONERS CONTEND, HOWEVER, THAT THE CONGRESS IN ENACTING SEC.
264 OF THE 1954 CODE AUTHORIZED THE DEDUCTIONS.  THEY POINT OUT THAT
SEC. 264(A)(2) DENIES A DEDUCTION FOR AMOUNTS PAID ON INDEBTEDNESS
INCURRED TO PURCHASE OR CARRY A SINGLE-PREMIUM ANNUITY CONTRACT, BUT
ONLY AS TO CONTRACTS PURCHASED AFTER MARCH 1, 1954.  (FN5)  THE
PETITIONERS THUS WOULD ATTRIBUTE TO CONGRESS A PURPOSE TO ALLOW THE
DEDUCTION OF PRE-1954 PAYMENTS UNDER TRANSACTIONS OF THE KIND CARRIED
ON BY KNETSCH WITH THE INSURANCE COMPANY WITHOUT REGARD TO WHETHER THE
TRANSACTIONS CREATED A TRUE OBLIGATION TO PAY INTEREST.  UNLESS THAT
MEANING PLAINLY APPEARS WE WILL NOT ATTRIBUTE IT TO CONGRESS.  "TO HOLD
OTHERWISE WOULD BE TO EXALT ARTIFICE ABOVE REALITY AND TO DEPRIVE THE
STATUTORY PROVISION IN QUESTION OF ALL SERIOUS PURPOSE."  GREGORY V.
HELVERING, SUPRA, P. 470.  WE, THEREFORE, LOOK TO THE STATUTE AND
MATERIALS RELEVANT TO ITS CONSTRUCTION FOR EVIDENCE THAT CONGRESS MEANT
IN SEC. 264(A)(2) TO AUTHORIZE THE DEDUCTION OF PAYMENTS MADE UNDER
SHAM TRANSACTIONS ENTERED INTO BEFORE 1954.  WE LOOK IN VAIN. 

PROVISIONS DENYING DEDUCTIONS FOR AMOUNTS PAID ON INDEBTEDNESS
INCURRED TO PURCHASE OR CARRY INSURANCE CONTRACTS ARE NOT NEW IN THE
REVENUE ACTS.  A PROVISION APPLICABLE TO ALL ANNUITIES, BUT NOT TO LIFE
INSURANCE OR ENDOWMENT CONTRACTS, WAS IN THE STATUTE FROM 1932 TO 1934,
47 STAT. 179.  IT WAS ADDED AT A TIME WHEN CONGRESS WAS DEVELOPING A
POLICY TO DENY A DEDUCTION FOR INTEREST ALLOCABLE TO TAX-EXEMPT INCOME;
(FN6) THE PROCEEDS OF ANNUITIES WERE EXCLUDED FROM GROSS INCOME UP TO
THE AMOUNT OF THE CONSIDERATION PAID IN BY THE ANNUITANT.  SEE H.R.
REP. NO. 708, 72D CONG., 1ST SESS., P. 11.  THE PROVISION WAS REPEALED
BY THE REVENUE ACT OF 1934, 48 STAT. 688, WHEN THE METHOD BY WHICH
ANNUITY PAYMENTS WERE TAKEN INTO GROSS INCOME WAS CHANGED IN SUCH WAY
THAT MORE WOULD BE INCLUDED.  48 STAT. 687.  SEE S. REP. NO. 558, 73D
CONG., 2D SESS., P. 24. 

CONGRESS THEN IN 1942 DENIED A DEDUCTION FOR AMOUNTS PAID ON
INDEBTEDNESS INCURRED TO PURCHASE SINGLE-PREMIUM LIFE INSURANCE AND
ENDOWMENT CONTRACTS.  THIS PROVISION WAS ENACTED BY AN AMENDMENT TO THE
1939 CODE, 56 STAT. 827, "TO CLOSE A LOOPHOLE" IN RESPECT OF INTEREST
ALLOCABLE TO PARTIALLY EXEMPT INCOME.  SEE HEARINGS BEFORE SENATE
FINANCE COMMITTEE ON H.R. 7378, 77TH CONG., 2D SESS., P. 54; SEC.
22(B)(1) OF THE 1939 CODE (NOW SEC. 101(A)(1) OF THE 1954 CODE). 

THE 1954 PROVISION EXTENDING THE DENIAL TO AMOUNTS PAID ON
INDEBTEDNESS INCURRED TO PURCHASE OR CARRY SINGLE-PREMIUM ANNUITIES
APPEARS TO US SIMPLY TO EXPAND THE APPLICATION OF THE POLICY IN RESPECT
OF INTEREST ALLOCABLE TO PARTIALLY EXEMPT INCOME.  THE PROOFS ARE
PERHAPS NOT AS STRONG AS IN THE CASE OF LIFE INSURANCE AND ENDOWMENT
CONTRACTS, BUT IN THE ABSENCE OF ANY CONTRARY EXPRESSION OF THE
CONGRESS, THEIR IMPORT IS CLEAR ENOUGH.  THERE IS FIRST THE FACT THAT
THE PROVISION WAS INCORPORATED IN THE SECTION COVERING LIFE INSURANCE
AND ENDOWMENT CONTRACTS, WHICH UNQUESTIONABLY WAS ADOPTED TO FURTHER
THAT POLICY.  THERE IS SECOND THE FACT THAT CONGRESS' ATTENTION WAS
DIRECTED TO ANNUITIES IN 1954; THE SAME 1954 STATUTE AGAIN CHANGED THE
BASIS FOR TAKING PART OF THE PROCEEDS OF ANNUITIES INTO GROSS INCOME. 
SEE SEC. 72(B) OF THE 1954 CODE.  THESE ARE SIGNS THAT CONGRESS' LONG
STANDING CONCERN WITH THE PROBLEM OF INTEREST ALLOCABLE TO PARTIALLY
EXEMPT INCOME, AND NOT ANY CONCERN WITH SHAM TRANSACTIONS, EXPLAINS THE
PROVISION. 

MOREOVER THE PROVISION ITSELF NEGATES ANY SUGGESTION THAT SHAM
TRANSACTIONS WERE THE CONGRESSIONAL CONCERN, FOR THE DEDUCTION DENIED
IS OF CERTAIN INTEREST PAYMENTS ON ACTUAL "INDEBTEDNESS."  AND WE SEE
NOTHING IN THE SENATE FINANCE AND HOUSE WAYS AND MEANS COMMITTEE
REPORTS ON SEC. 264, H.R. REP. NO. 1337, 83D CONG., 2D SESS., P. 31; S.
REP. NO. 1622, 83D CONG., 2D SESS., P. 38, TO SUGGEST THAT CONGRESS IN
EXEMPTING PRE-1954 ANNUITIES INTENDED TO PROTECT SHAM TRANSACTIONS. 
(FN7) 

SOME POINT IS MADE IN AN AMICUS CURIAE BRIEF OF THE FACT THAT KNETSCH
IN ENTERING INTO THESE ANNUITY AGREEMENTS RELIED ON INDIVIDUAL RULING
LETTERS ISSUED BY THE COMMISSIONER TO OTHER TAXPAYERS.  THIS ARGUMENT
HAS NEVER BEEN ADVANCED BY PETITIONERS IN THIS CASE.  ACCORDINGLY, WE
HAVE NO REASON TO PASS UPON IT. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  THE RELEVANT WORDS OF THE TWO SECTIONS ARE THE SAME, NAMELY THAT
THERE SHALL BE ALLOWED AS A DEDUCTION "ALL INTEREST PAID OR ACCRUED
WITHIN THE TAXABLE YEAR ON INDEBTEDNESS ...  ." 

FN2  WE LIKEWISE PUT ASIDE KNETSCH'S ARGUMENT THAT, BECAUSE HE
RECEIVED ORDINARY INCOME WHEN HE SURRENDERED THE ANNUITIES IN 1956, HE
HAS SUFFERED A NET LOSS EVEN IF THE CONTESTED DEDUCTIONS ARE ALLOWED,
AND THAT THEREFORE HIS MOTIVE IN TAKING OUT THE ANNUITIES COULD NOT
HAVE BEEN TAX AVOIDANCE.    FN3  PETITIONERS ARGUE FURTHER THAT IN 10
YEARS THE NET CASH VALUE OF THE BONDS WOULD HAVE EXCEEDED THE AMOUNTS
KNETSCH PAID AS "INTEREST."  THIS CONTENTION, HOWEVER, IS PREDICATED ON
THE WHOLLY UNLIKELY ASSUMPTION THAT KNETSCH WOULD HAVE PAID OFF IN CASH
THE ORIGINAL $4,000,000 "LOAN." 

FN4  EVERY COURT WHICH HAS CONSIDERED THIS OR SIMILAR CONTRACTS HAS
AGREED WITH OUR CONCLUSION, EXCEPT THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT IN THE BOND CASE AND ONE DISTRICT COURT BOUND BY THAT DECISION,
RODERICK V. UNITED STATES, 59-2 U.S.T.C. PARA. 9650.  SEE DIGGS V.
COMMISSIONER, 281 F.2D 326 (C.A.2D CIR.), PENDING ON PETITION FOR
CERTIORARI (LATER DENIED, POST, P. 908); EMMONS AND WELLER V.
COMMISSIONER, 270 F.2D 294 (C.A. 3D CIR.), PENDING ON PETITIONS FOR
CERTIORARI (LATER DENIED, POST, P. 908); HAGGARD V. UNITED STATES, 59-1
U.S.T.C. PARA. 9299; OLIVER L. WILLIAMS, 18 T.C.M. 205.  SEE ALSO REV.
RUL. 54-94, 1954-1 CUM. BULL.  53, AND THE DISSENTING OPINION OF JUDGE
WISDOM IN BOND. 

FN5  SECTION 264(A)(2) PROVIDES: 

"(A)  GENERAL RULE.  - NO DEDUCTION SHALL BE ALLOWED FOR: 

     *         *         *    *         * 

"(2)  ANY AMOUNT PAID OR ACCRUED ON INDEBTEDNESS INCURRED OR
CONTINUED TO PURCHASE OR CARRY A SINGLE PREMIUM LIFE INSURANCE,
ENDOWMENT, OR ANNUITY CONTRACT. 

"PARAGRAPH (2) SHALL APPLY IN RESPECT OF ANNUITY CONTRACTS ONLY AS TO
CONTRACTS PURCHASED AFTER MARCH 1, 1954." 

THE SUBSTANCE OF THE SECTION WITHOUT THE ITALICIZED LANGUAGE WAS
ADDED TO THE 1939 CODE IN 1942.  56 STAT. 827. 

FN6  SEE SEC. 23(B) OF THE REVENUE ACT OF 1932, 47 STAT. 179, WHICH
PROVIDED: 

"(B)  INTEREST.  - ALL INTEREST PAID OR ACCRUED WITHIN THE TAXABLE
YEAR ON INDEBTEDNESS, EXCEPT (1) ON INDEBTEDNESS INCURRED OR CONTINUED
TO PURCHASE OR CARRY OBLIGATIONS OR SECURITIES (OTHER THAN OBLIGATIONS
OF THE UNITED STATES ISSUED AFTER SEPTEMBER 24, 1917, AND ORIGINALLY
SUBSCRIBED FOR BY THE TAXPAYER) THE INTEREST UPON WHICH IS WHOLLY
EXEMPT FROM THE TAXES IMPOSED BY THIS TITLE, OR (2) ON INDEBTEDNESS
INCURRED OR CONTINUED IN CONNECTION WITH THE PURCHASING OR CARRYING OF
AN ANNUITY." 

FN7  THE REPORTS ARE AS FOLLOWS: 

"UNDER EXISTING LAW, NO INTEREST DEDUCTION IS ALLOWED IN THE CASE OF
INDEBTEDNESS INCURRED, OR CONTINUED, TO PURCHASE A SINGLE-PREMIUM LIFE
INSURANCE OR ENDOWMENT CONTRACT  ...  . 

"EXISTING LAW DOES NOT EXTEND THE DENIAL OF THE INTEREST DEDUCTION TO
INDEBTEDNESS INCURRED TO PURCHASE SINGLE-PREMIUM ANNUITY CONTRACTS.  IT
HAS COME TO YOUR COMMITTEE'S ATTENTION THAT A FEW INSURANCE COMPANIES
HAVE PROMOTED A PLAN FOR SELLING ANNUITY CONTRACTS BASED ON THE TAX
ADVANTAGE DERIVED FROM OMMISSION OF ANNUITIES FROM THE TREATMENT
ACCORDED SINGLE-PREMIUM LIFE-INSURANCE OR ENDOWMENT CONTRACTS.  THE
ANNUITY IS SOLD FOR A NOMINAL CASH PAYMENT WITH A LOAN TO COVER THE
BALANCE OF THE SINGLE-PREMIUM COST OF THE ANNUITY.  INTEREST ON THE
LOAN (WHICH MAY BE A NONRECOURSE LOAN) IS THEN TAKEN AS A DEDUCTION
ANNUALLY BY THE PURCHASER WITH A RESULTING TAX SAVING THAT REDUCES THE
REAL INTEREST COST BELOW THE INCREMENT IN VALUE PRODUCED BY THE
ANNUITY. 

"YOUR COMMITTEE'S BILL WILL DENY AN INTEREST DEDUCTION IN SUCH CASES
BUT ONLY AS TO ANNUITIES PURCHASED AFTER MARCH 1, 1954." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE WHITTAKER AND MR. JUSTICE
STEWART CONCUR, DISSENTING. 

I AGREE WITH THE VIEWS EXPRESSED BY JUDGE MOORE IN DIGGS V.
COMMISSIONER, 281 F.2D 326, 330-332, AND BY JUDGE BROWN, WRITING FOR
HIMSELF AND JUDGE HUTCHESON, IN UNITED STATES V. BOND, 258 F.2D 577. 

IT IS TRUE THAT IN THIS TRANSACTION THE TAXPAYER WAS BOUND TO LOSE IF
THE ANNUITY CONTRACT IS TAKEN BY ITSELF.  AT LEAST THE TAXPAYER SHOWED
BY HIS CONDUCT THAT HE NEVER INTENDED TO COME OUT AHEAD ON THAT
INVESTMENT APART FROM THIS INCOME TAX DEDUCTION.  YET THE SAME MAY BE
TRUE WHERE A TAXPAYER BORROWS MONEY AT 5% OR 6% INTEREST TO PURCHASE
SECURITIES THAT PAY ONLY NOMINAL INTEREST; OR WHERE, WITH MONEY IN THE
BANK EARNING 3%, HE BORROWS FROM THE SELFSAME BANK AT A HIGHER RATE. 
HIS AIM THERE, AS HERE, MAY ONLY BE TO GET A TAX DEDUCTION FOR INTEREST
PAID.  YET AS LONG AS THE TRANSACTION ITSELF IS NOT HOCUS-POCUS, THE
INTEREST CHARGES INCIDENT TO COMPLETING IT WOULD SEEM TO BE DEDUCTIBLE
UNDER THE INTERNAL REVENUE CODE AS RESPECTS ANNUITY CONTRACTS MADE
PRIOR TO MARCH 1, 1954, THE DATE CONGRESS SELECTED FOR TERMINATING THIS
CLASS OF DEDUCTIONS.  26 U.S.C. SEC. 264.  THE INSURANCE COMPANY
EXISTED; IT OPERATED UNDER TEXAS LAW; IT WAS AUTHORIZED TO ISSUE THESE
POLICIES AND TO MAKE THESE ANNUITY LOANS.  WHILE THE TAXPAYER WAS
OBLIGATED TO PAY INTEREST AT THE RATE OF 3 1/2% PER ANNUM, THE ANNUITY
BONDS INCREASED IN CASH VALUE AT THE RATE OF ONLY 2 1/2% PER ANNUM. 
THE INSURANCE COMPANY'S PROFIT WAS IN THAT 1-POINT SPREAD. 

TAX AVOIDANCE IS A DOMINATING MOTIVE BEHIND SCORES OF TRANSACTIONS. 
IT IS PLAINLY PRESENT HERE.  WILL THE SERVICE THAT CALLS THIS
TRANSACTION A "SHAM" TODAY NOT PRESS FOR COLLECTION OF TAXES* ARISING
OUT OF THE SURRENDER OF THE ANNUITY CONTRACT?  I THINK IT SHOULD, FOR I
DO NOT BELIEVE ANY PART OF THE TRANSACTION WAS A "SHAM."  TO DISALLOW
THE "INTEREST" DEDUCTION BECAUSE THE ANNUITY DEVICE WAS DEVOID OF
COMMERCIAL SUBSTANCE IS TO DRAW A LINE WHICH WILL AFFECT A HOST OF
SITUATIONS NOT NOW BEFORE US AND WHICH, WITH ALL DEFERENCE, I DO NOT
THINK WE CAN MAINTAIN WHEN OTHER CASES REACH HERE.  THE REMEDY IS
LEGISLATIVE.  EVILS OR ABUSES CAN BE PARTICULARIZED BY CONGRESS.  WE
DEAL ONLY WITH "INTEREST" AS COMMONLY UNDERSTOOD AND AS USED ACROSS THE
BOARD IN MYRIAD TRANSACTIONS.  SINCE THESE TRANSACTIONS WERE REAL AND
LEGITIMATE IN THE INSURANCE WORLD AND WERE CONSUMMATED WITHIN THE
LIMITS ALLOWED BY INSURANCE POLICIES, I WOULD RECOGNIZE THEM TAX-WISE. 

*PETITIONERS TERMINATED THIS TRANSACTION IN 1956 BY ALLOWING THE
BONDS TO BE CANCELLED AND RECEIVING A CHECK FOR $1,000.  THE
TERMINATION WAS REFLECTED IN THEIR TAX RETURN FOR 1956.  IT MIGHT ALSO
BE NOTED THAT THE INSURANCE COMPANY REPORTED AS GROSS INCOME THE
INTEREST PAYMENTS WHICH IT RECEIVED FROM PETITIONERS IN 1953 AND 1954. 

..END :















MCPHAUL V. UNITED STATES 364 U.S. 372 


NO. 33.  ARGUED OCTOBER 13, 1960 - DECIDED NOVEMBER 14, 1960 - 272 F.2D
627, AFFIRMED. 


PETITIONER WAS CONVICTED UNDER 2 U.S.C. SEC. 192 FOR WILLFUL FAILURE
TO COMPLY WITH A SUBPOENA OF THE HOUSE OF REPRESENTATIVES COMMANDING
HIM TO PRODUCE BEFORE ONE OF ITS SUBCOMMITTEES CERTAIN RECORDS OF THE
CIVIL RIGHTS CONGRESS.  THE EVIDENCE SHOWED:  BEFORE ISSUANCE OF THE
SUBPOENA, THE SUBCOMMITTEE HAD REASON TO BELIEVE THAT THE CIVIL RIGHTS
CONGRESS WAS A SUBVERSIVE ORGANIZATION AND THAT PETITIONER WAS ITS
EXECUTIVE SECRETARY.  AT THE HEARING, THE CHAIRMAN OF THE SUBCOMMITTEE
EXPLAINED THAT DETROIT IS A VITAL DEFENSE AREA AND THAT THE PURPOSE OF
THE HEARING WAS TO INVESTIGATE COMMUNIST ACTIVITIES THERE.  WHEN ASKED
WHETHER HE WOULD PRODUCE THE DOCUMENTS CALLED FOR BY THE SUBPOENA,
PETITIONER STATED FLATLY THAT HE WOULD NOT.  NEITHER AT THE HEARING NOR
AT HIS TRIAL DID PETITIONER DENY THE EXISTENCE OF THE RECORDS OR HIS
ABILITY TO PRODUCE THEM.  HE BASED HIS REFUSAL UPON A CLAIM OF HIS
PRIVILEGE UNDER THE FIFTH AMENDMENT.  HELD:  THE CONVICTION IS
SUSTAINED.  PP. 373-383. 

(A)  THE GOVERNMENT'S PROOF AT THE TRIAL ESTABLISHED A PRIMA FACIE
CASE OF WILLFUL REFUSAL TO COMPLY WITH THE SUBPOENA; AND, INASMUCH AS
PETITIONER NEITHER ADVISED THE SUBCOMMITTEE THAT HE WAS UNABLE TO
PRODUCE THE RECORDS NOR ATTEMPTED TO INTRODUCE AT HIS TRIAL ANY
EVIDENCE OF HIS INABILITY TO PRODUCE THEM, THE TRIAL COURT WAS
JUSTIFIED IN CONCLUDING AND IN CHARGING THE JURY THAT THE RECORDS
CALLED FOR BY THE SUBPOENA WERE IN EXISTENCE AND UNDER PETITIONER'S
CONTROL AT THE TIME THE SUBPOENA WAS SERVED UPON HIM.  PP. 373-380. 

(B)  THE FIFTH AMENDMENT DID NOT EXCUSE PETITIONER FROM PRODUCING THE
RECORDS, SINCE RECORDS HELD IN A REPRESENTATIVE RATHER THAN IN A
PERSONAL CAPACITY CANNOT BE THE SUBJECT OF THE PERSONAL PRIVILEGE
AGAINST SELF-INCRIMINATION.  P. 380. 

(C)  THE EVIDENCE WAS SUFFICIENT TO SHOW THAT THE RECORDS CALLED FOR
BY THE SUBPOENA WERE PERTINENT TO THE INQUIRY.  PP. 380-382. 

(D)  THE SUBPOENA WAS NOT SO BROAD AS TO CONSTITUTE AN UNREASONABLE
SEARCH AND SEIZURE IN VIOLATION OF THE FOURTH AMENDMENT.  PP. 382-383. 

MCPHAUL V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

WE HERE REVIEW PETITIONER'S CONVICTION UNDER 2 U.S.C. SEC. 192 (FN1)
FOR WILLFUL FAILURE TO COMPLY WITH A SUBPOENA OF THE HOUSE OF
REPRESENTATIVES COMMANDING HIM TO PRODUCE CERTAIN RECORDS OF THE CIVIL
RIGHTS CONGRESS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES.  THE PRINCIPAL QUESTION PRESENTED IS WHETHER THE
EVIDENCE JUSTIFIED THE TRIAL COURT'S RULINGS THAT THE RECORDS CALLED
FOR BY THE SUBPOENA WERE IN EXISTENCE, SUBJECT TO PETITIONER'S CONTROL,
AND PERTINENT TO THE COMMITTEE'S INQUIRY. 

THE RELEVANT EVIDENCE WAS AS FOLLOWS.  HAVING KNOWLEDGE THAT THE
CIVIL RIGHTS CONGRESS HAD BEEN DECLARED A SUBVERSIVE ORGANIZATION BY
THE ATTORNEY GENERAL - INDEED, HAVING ITSELF EARLIER FOUND THAT
ORGANIZATION TO BE A SUBVERSIVE ONE - AND HAVING REASON TO BELIEVE THAT
PETITIONER WAS ITS EXECUTIVE SECRETARY, (FN2) THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES CAUSED A SUBPOENA OF THE HOUSE OF REPRESENTATIVES
TO BE ISSUED AND SERVED UPON PETITIONER COMMANDING HIM TO APPEAR BEFORE
ITS COMMITTEE ON UN-AMERICAN ACTIVITIES, OR A SUBCOMMITTEE THEREOF, AT
A STATED TIME AND PLACE IN DETROIT, MICHIGAN, ON FEBRUARY 26, 1952, AND
THERE TO PRODUCE "ALL RECORDS, CORRESPONDENCE AND MEMORANDA PERTAINING
TO THE ORGANIZATION OF, THE AFFILIATION WITH OTHER ORGANIZATIONS AND
ALL MONIES RECEIVED OR EXPENDED BY THE CIVIL RIGHTS CONGRESS  ...  AND
THEN AND THERE TO TESTIFY TOUCHING MATTERS OF INQUIRY COMMITTED TO SAID
COMMITTEE  ...  ." 

UPON THE OPENING OF THE HEARINGS BEFORE THE SUBCOMMITTEE AT DETROIT
ON FEBRUARY 26, 1952, THE CHAIRMAN MADE A PUBLIC STATEMENT, SAYING,
AMONG OTHER THINGS, THAT EARLIER COMMITTEE HEARINGS HAD "DISCLOSED A
CONCENTRATION OF COMMUNIST EFFORT IN CERTAIN DEFENSE AREAS OF THE
COUNTRY," CONSISTING IN PART OF KEEPING "THE NATIONAL ORGANIZATION OF
THE COMMUNIST PARTY AND THE INTERNATIONAL COMMUNIST MOVEMENT FULLY
ADVISED OF INDUSTRIAL POTENTIALITIES" IN SUCH AREAS, AND THAT "THERE IS
NO AREA OF GREATER IMPORTANCE TO THE NATION AS A WHOLE, BOTH IN TIME OF
PEACE AND IN TIME OF WAR, THAN THE GENERAL AREA OF DETROIT," AND HE
CONCLUDED WITH THE STATEMENT THAT:  "THE PURPOSE OF THIS INVESTIGATION
IS TO DETERMINE FIRST, WHETHER THERE HAS BEEN COMMUNIST ACTIVITY IN
THIS VITAL DEFENSE AREA, AND IF SO, THE NATURE, EXTENT, CHARACTER AND
OBJECTS THEREOF." 

ACCOMPANIED BY COUNSEL, PETITIONER APPEARED BEFORE THE SUBCOMMITTEE
AT THE TIME AND PLACE COMMANDED BY THE SUBPOENA, AND THE FOLLOWING
COLLOQUY OCCURRED: 

"MR. WOOD (THE CHAIRMAN):  MR. MCPHAUL, THE COMMITTEE HAS HERETOFORE
SERVED UPON YOU A SUBPOENA DUCES TECUM, TO PRODUCE CERTAIN RECORDS AND
DOCUMENTS.  ARE YOU PREPARED TO RESPOND TO THAT SUBPOENA? 

     *         *         *         *         * 

"MR. WOOD:  ...  WILL YOU ANSWER MY QUESTION, MR. MCPHAUL.  ARE YOU
PREPARED TO PRODUCE THE DOCUMENTS AND PAPERS THAT HAVE BEEN CALLED UPON
FOR YOU TO PRODUCE UNDER THE SUBPOENA? 

"MR. MCPHAUL:  MR. WOOD, I REFUSE TO ANSWER THIS OR ANY QUESTION
WHICH DEALS WITH THE POSSESSION OR CUSTODY OF THE BOOKS AND RECORDS
CALLED FOR IN THE SUBPOENA.  I CLAIM MY PRIVILEGE UNDER THE FIFTH
AMENDMENT OF THE CONSTITUTION. 

     *         *         *       *         * 

"MR. TAVENNER (COMMITTEE COUNSEL):  I WOULD LIKE TO ASK THE WITNESS
IF HE HAS ANY OTHER REASON FOR REFUSING TO PRODUCE THE DOCUMENTS CALLED
FOR IN THE SUBPOENA? 

  *         *         *         *         * 

"MR. WOOD: IN ORDER TO COMPLETE THE RECORD, MR. MCPHAUL IS IT IN
RESPONSE TO THIS SUBPOENA THAT HAS JUST BEEN READ THAT YOU NOW DECLINE,
FOR THE REASON YOU HAVE STATED, TO PRODUCE THE DOCUMENTS AND BOOKS AND
RECORDS THEREIN CALLED FOR? 

"MR. MCPHAUL:  I HAVE STATED THE REASONS, FOR THE RECORD. 

"MR. WOOD:  IS IT IN RESPONSE TO THIS SUBPOENA THAT YOU REFUSE TO
ANSWER? 

"MR. MCPHAUL:  THAT IS MY ANSWER THAT I HAVE JUST GIVEN. 

"MR. WOOD:  TO THIS SUBPOENA? 

"MR. MCPHAUL:  TO THAT SUBPOENA; YES." 

PETITIONER WAS THEN SWORN, AND, AFTER SUBMITTING A PREPARED STATEMENT
AND ANSWERING A FEW PRELIMINARY QUESTIONS, THE FOLLOWING OCCURRED: 

"MR. TAVENNER:  THE QUESTION IS AS TO WHETHER OR NOT YOU ARE REFUSING
TO PRODUCE THE RECORDS DIRECTED TO BE PRODUCED UNDER THE SUBPOENA? 

"MR. MCPHAUL:  MY ANSWER TO THAT IS, I REFUSE TO ANSWER THIS OR ANY
QUESTIONS WHICH DEAL WITH POSSESSION OR CUSTODY OF THE BOOKS AND
RECORDS CALLED FOR IN THIS SUBPOENA.  I CLAIM MY PRIVILEGE UNDER THE
FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION. 

"MR. TAVENNER:  MY QUESTION TO YOU WAS NOT ANSWERED BY THAT
STATEMENT, IN MY JUDGMENT.  MY QUESTION WAS WHETHER OR NOT YOU ARE
REFUSING TO PRODUCE THE RECORDS WHICH YOU WERE DIRECTED TO PRODUCE
UNDER THIS SUBPOENA? 

"MR MCPHAUL:  I HAVE ANSWERED IT IN THIS STATEMENT. 

"MR. TAVENNER:  NO SIR.  YOU HAVE STATED THAT YOU REFUSE TO ANSWER
ANY QUESTIONS PERTAINING TO THEM.  I HAVE NOT ASKED YOU A QUESTION THAT
PERTAINS TO THEM.  I HAVE ASKED YOU TO PRODUCE THE RECORDS.  NOW, WILL
YOU PRODUCE THEM? 

"MR. MCPHAUL:  I WILL NOT." 

FOLLOWING RECEIPT OF THE SUBCOMMITTEE'S REPORT OF THESE OCCURRENCES,
THE HOUSE CERTIFIED THE MATTER TO THE UNITED STATES ATTORNEY FOR THE
EASTERN DISTRICT OF MICHIGAN FOR INITIATION OF CONTEMPT PROCEEDINGS
AGAINST PETITIONER, AND HE WAS INDICTED ON JULY 29, 1954.  AFTER DENIAL
OF HIS MOTION TO DISMISS THE INDICTMENT, (FN3) PETITIONER ENTERED A
PLEA OF NOT GUILTY AND THE CASE PUT TO TRIAL BEFORE A JURY.  THE
GOVERNMENT OFFERED AND THERE WAS RECEIVED IN EVIDENCE THOSE PORTIONS OF
THE TRANSCRIPT OF THE DETROIT HEARINGS WHICH WE HAVE MENTIONED, VARIOUS
HOUSE DOCUMENTS AUTHORIZING THE INITIATION OF THIS PROCEEDING, AND A
LETTER ON THE LETTERHEAD OF THE CIVIL RIGHTS CONGRESS, DATED FEBRUARY
16, 1952, OVER PETITIONER'S NAME, AND WHAT PURPORTED TO BE HIS
SIGNATURE, AS EXECUTIVE SECRETARY.  (FN4) 

PETITIONER OFFERED NO EVIDENCE, BUT MOVED FOR A DIRECTED VERDICT OF
ACQUITTAL SUBSTANTIALLY ON THE GROUNDS ASSERTED IN HIS MOTION TO
DISMISS THE INDICTMENT (SEE NOTE 3) AND ON THE FURTHER GROUNDS THAT THE
GOVERNMENT HAD FAILED TO ADDUCE ANY EVIDENCE SUFFICIENT TO SHOW THAT
THE RECORDS CALLED FOR BY THE SUBPOENA WERE IN EXISTENCE AND IN
PETITIONER'S POSSESSION OR CONTROL AT THE TIME HE WAS SERVED WITH THE
SUBPOENA OR THAT THEY WERE PERTINENT TO THE SUBCOMMITTEE'S INQUIRY. 
THE MOTION WAS DENIED, AND THEREUPON PETITIONER REQUESTED THE COURT TO
CHARGE THE JURY, IN SUBSTANCE, THAT UNLESS THEY FOUND FROM THE EVIDENCE
AND BEYOND A REASONABLE DOUBT THAT THE RECORDS CALLED FOR BY THE
SUBPOENA WERE IN EXISTENCE AND IN PETITIONER'S CUSTODY OR CONTROL AT
THE TIME THE SUBPOENA WAS SERVED UPON HIM, THEY SHOULD FIND HIM NOT
GUILTY.  THE COURT REFUSED THAT REQUEST AND, INSTEAD, CHARGED THE JURY
NOT TO CONSIDER "WHETHER THE RECORDS AND DOCUMENTS DESIGNATED IN THE
SUBPOENA WERE ACTUALLY IN EXISTENCE OR UNDER THE POSSESSION OR CONTROL
OF THE DEFENDANT, BECAUSE IF THE DEFENDANT HAD LEGITIMATE REASONS FOR
FAILING TO PRODUCE THE SAID RECORDS, HE SHOULD HAVE STATED HIS REASONS
FOR NON-COMPLIANCE WITH THE SUBPOENA WHEN HE APPEARED BEFORE THE SAID
SUBCOMMITTEE." 

THE JURY FOUND PETITIONER GUILTY, AND HE WAS FINED THE SUM OF $500
AND SENTENCED TO IMPRISONMENT FOR A PERIOD OF NINE MONTHS.  THE COURT
OF APPEALS AFFIRMED, 272 F.2D 627, AND WE GRANTED CERTIORARI, 362 U.S.
917. 

PETITIONER'S PRINCIPAL CONTENTIONS HERE ARE THAT THERE WAS NO
EVIDENCE SHOWING THAT THE RECORDS CALLED FOR BY THE SUBPOENA WERE IN
EXISTENCE OR, IF IT MAY BE SAID THAT THERE WAS, THAT THOSE RECORDS WERE
IN PETITIONER'S POSSESSION OR SUBJECT TO HIS CONTROL, AND THE TRIAL
COURT THEREFORE SHOULD HAVE SUSTAINED HIS MOTION FOR A DIRECTED VERDICT
OF ACQUITTAL OR, AT THE MINIMUM, SHOULD HAVE SUBMITTED THOSE MATTERS TO
THE JURY FOR RESOLUTION. 

IT IS OF COURSE TRUE THAT "A COURT WILL NOT IMPRISON A WITNESS FOR
FAILURE TO PRODUCE DOCUMENTS WHICH HE DOES NOT HAVE, UNLESS HE IS
RESPONSIBLE FOR THEIR UNAVAILABILITY, CF.  JURNEY V. MACCRACKEN, 294
U.S. 125, OR IS IMPEDING JUSTICE BY NOT EXPLAINING WHAT HAPPENED TO
THEM, UNITED STATES V. GOLDSTEIN, 105 F.2D 150 (1939)," UNITED STATES
V. BRYAN, 339 U.S. 323, 330-331.  BUT, SO FAR AS THE RECORD SHOWS,
PETITIONER HAS NEVER CLAIMED - EITHER BEFORE THE SUBCOMMITTEE, THE
DISTRICT COURT, OR THE COURT OF APPEALS, AND HE DOES NOT CLAIM HERE -
THAT THE RECORDS CALLED FOR BY THE SUBPOENA DID NOT EXIST OR THAT THEY
WERE NOT IN HIS POSSESSION OR SUBJECT TO HIS CONTROL.  RATHER, HIS
CLAIM, FIRST RAISED AT HIS CONTEMPT TRIAL MORE THAN TWO YEARS AFTER HIS
APPEARANCE BEFORE THE SUBCOMMITTEE, IS THAT THE GOVERNMENT FAILED TO
SHOW THAT HE COULD HAVE PRODUCED THE RECORDS BEFORE THE SUBCOMMITTEE,
NOTWITHSTANDING HE HAS NEVER CLAIMED HE COULD NOT PRODUCE THEM. 

WE THINK THE COURT'S DECISION IN UNITED STATES V. BRYAN, 339 U.S.
323, IS HIGHLY RELEVANT TO THESE QUESTIONS.  (FN5)  FOR IT IS AS TRUE
HERE AS IT WAS THERE, THAT "IF PETITIONER HAD LEGITIMATE REASONS FOR
FAILING TO PRODUCE THE RECORDS OF THE ASSOCIATION, A DECENT RESPECT FOR
THE HOUSE OF REPRESENTATIVES, BY WHOSE AUTHORITY THE SUBPOENAS ISSUED,
WOULD HAVE REQUIRED THAT HE STATE HIS REASONS FOR NONCOMPLIANCE UPON
THE RETURN OF THE WRIT."  ID., AT 332.  SUCH A STATEMENT WOULD HAVE
GIVEN THE SUBCOMMITTEE AN OPPORTUNITY TO AVOID THE BLOCKING OF ITS
INQUIRY BY TAKING OTHER APPROPRIATE STEPS TO OBTAIN THE RECORDS.  "TO
DENY THE COMMITTEE THE OPPORTUNITY TO CONSIDER THE OBJECTION OR REMEDY
IT IS IN ITSELF A CONTEMPT OF ITS AUTHORITY AND AN OBSTRUCTION OF ITS
PROCESSES.   SEE BEVAN V. KRIEGER, 289 U.S. 459, 464-465 (1933)."  HIS
FAILURE TO MAKE ANY SUCH STATEMENT WAS "A PATENT EVASION OF THE DUTY OF
ONE SUMMONED TO PRODUCE PAPERS BEFORE A CONGRESSIONAL COMMITTEE, AND
CANNOT BE CONDONED."  ID., AT 333. 

THE GOVERNMENT'S PROOF AT THE TRIAL THUS ESTABLISHED A PRIMA FACIE
CASE OF WILLFUL FAILURE TO COMPLY WITH THE SUBPOENA.  THE EVIDENCE OF
THE SUBCOMMITTEE'S REASONABLE BASIS FOR BELIEVING THAT THE PETITIONER
COULD PRODUCE THE RECORDS IN QUESTION, COUPLED WITH THE EVIDENCE OF HIS
FAILURE EVEN TO SUGGEST TO THE SUBCOMMITTEE HIS INABILITY TO PRODUCE
THOSE RECORDS, CLEARLY SUPPORTED AN INFERENCE THAT HE COULD HAVE
PRODUCED THEM.  THE BURDEN THEN SHIFTED TO THE PETITIONER TO PRESENT
SOME EVIDENCE TO EXPLAIN OR JUSTIFY HIS REFUSAL.  MORRISON V.
CALIFORNIA, 291 U.S. 82, 88-89.  BUT HE ELECTED NOT TO PRESENT ANY
EVIDENCE.  IN THESE CIRCUMSTANCES, THERE WAS NO FACTUAL ISSUE,
RESPECTING THE EXISTENCE OF THE RECORDS OR HIS ABILITY TO PRODUCE THEM,
FOR RESOLUTION BY THE JURY. 

THE FIFTH AMENDMENT DID NOT EXCUSE PETITIONER FROM PRODUCING THE
RECORDS OF THE CIVIL RIGHTS CONGRESS, FOR IT IS WELL SETTLED THAT
"BOOKS AND RECORDS KEPT 'IN A REPRESENTATIVE RATHER THAN IN A PERSONAL
CAPACITY CANNOT BE THE SUBJECT OF THE PERSONAL PRIVILEGE AGAINST SELF
INCRIMINATION, EVEN THOUGH PRODUCTION OF THE PAPERS MIGHT TEND TO
INCRIMINATE THEIR KEEPER PERSONALLY.'  UNITED STATES V. WHITE, 322 U.S.
694, 699 (1944)."  ROGERS V. UNITED STATES, 340 U.S. 367, 372.  AND SEE
CURCIO V. UNITED STATES, 354 U.S. 118, 122-123.  SIMILARLY, THERE IS NO
MERIT IN PETITIONER'S ARGUMENT THAT HE COULD NOT HAVE ADVISED THE
SUBCOMMITTEE THAT HE WAS UNABLE TO PRODUCE THE RECORDS WITHOUT THEREBY
INVITING OTHER QUESTIONS RESPECTING THE RECORDS AND THUS RISKING WAIVER
OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  SEE CURCIO V. UNITED
STATES, 354 U.S. 118.  NOR DOES THE RULE OF BLAU V. UNITED STATES, 340
U.S. 159, EXCUSE ONE SUBPOENAED TO PRODUCE RECORDS IN A REPRESENTATIVE
CAPACITY, UNITED STATES V. WHITE, 322 U.S. 694, FROM ASSERTING
INABILITY TO PRODUCE THE RECORDS IF, AT A LATER CONTEMPT TRIAL FOR
FAILURE TO PRODUCE THE RECORDS, HE EXPECTS TO PUT THE GOVERNMENT TO
PROOF ON THAT MATTER. 

INASMUCH AS PETITIONER NEITHER ADVISED THE SUBCOMMITTEE THAT HE WAS
UNABLE TO PRODUCE THE RECORDS NOR ATTEMPTED TO INTRODUCE ANY EVIDENCE
AT HIS CONTEMPT TRIAL OF HIS INABILITY TO PRODUCE THEM, WE HOLD THAT
THE TRIAL COURT WAS JUSTIFIED IN CONCLUDING AND IN CHARGING THE JURY
THAT THE RECORDS CALLED FOR BY THE SUBPOENA WERE IN EXISTENCE AND UNDER
PETITIONER'S CONTROL AT THE TIME THE SUBPOENA WAS SERVED UPON HIM. 

PETITIONER NEXT CONTENDS THAT THE EVIDENCE WAS NOT SUFFICIENT TO SHOW
THAT THE RECORDS CALLED FOR BY THE SUBPOENA WERE PERTINENT TO THE
INQUIRY.  IN THE FIRST PLACE, PETITIONER MADE NO OBJECTION TO THE
SUBPOENA BEFORE THE SUBCOMMITTEE ON THE GROUND OF PERTINENCY, SEE
BARENBLATT V. UNITED STATES, 360 U.S. 109, 123, BUT WE NEED NOT REST
DECISION ON THAT SCORE, FOR HERE "PERTINENCY" WAS CLEARLY SHOWN.  THE
STATED PURPOSES OF THE HEARING WERE TO DETERMINE "WHETHER THERE HAS
BEEN COMMUNIST ACTIVITY IN THIS VITAL DEFENSE AREA (DETROIT), AND IF
SO, THE NATURE, EXTENT, CHARACTER AND OBJECTS THEREOF."  EARLIER
SUBCOMMITTEE HEARINGS HAD "DISCLOSED A CONCENTRATION OF COMMUNIST
EFFORT IN CERTAIN DEFENSE AREAS OF THE COUNTRY," CONSISTING IN PART OF
KEEPING "THE NATIONAL ORGANIZATION OF THE COMMUNIST PARTY AND THE
INTERNATIONAL COMMUNIST MOVEMENT FULLY ADVISED OF INDUSTRIAL
POTENTIALITIES" IN SUCH AREAS, AND THE SUBCOMMITTEE ALSO HAD REASON TO
BELIEVE THAT THE CIVIL RIGHTS CONGRESS WAS BEING USED FOR SUBVERSIVE
PURPOSES.  THE SUBPOENA CALLED FOR "ALL RECORDS, CORRESPONDENCE AND
MEMORANDA" OF THE CIVIL RIGHTS CONGRESS RELATING TO THREE SPECIFIED
SUBJECTS: (1) THE "ORGANIZATION OF" THE GROUP, (2) ITS "AFFILIATION
WITH OTHER ORGANIZATIONS," AND (3) "ALL MONIES RECEIVED OR EXPENDED BY
IT."  IT WOULD SEEM CLEAR ENOUGH THAT THE AUSPICES UNDER WHICH THE
CIVIL RIGHTS CONGRESS WAS ORGANIZED, THE IDENTITY AND EXTENT OF ITS
AFFILIATIONS, THE SOURCE OF ITS FUNDS AND TO WHOM DISTRIBUTED WOULD BE
PRIME CONSIDERATIONS IN DETERMINING WHETHER THE ORGANIZATION WAS BEING
USED BY THE COMMUNISTS IN THE DETROIT AREA.  IF THE CIVIL RIGHTS
CONGRESS WAS AFFILIATED WITH KNOWN COMMUNIST ORGANIZATIONS, OR IF ITS
FUNDS WERE RECEIVED FROM SUCH ORGANIZATIONS OR WERE USED TO SUPPORT
COMMUNIST ACTIVITIES IN THE DETROIT AREA, THOSE FACTS, IF IS REASONABLE
TO SUPPOSE, WOULD BE SHOWN BY THE RECORDS CALLED FOR BY THE SUBPOENA,
AND THOSE FACTS WOULD BE HIGHLY PERTINENT TO THE SUBCOMMITTEE'S
INQUIRY.  IT THUS APPEARS THAT THE RECORDS CALLED FOR BY THE SUBPOENA
WERE NOT "PLAINLY INCOMPETENT OR IRRELEVANT TO ANY LAWFUL PURPOSE (OF
THE SUBCOMMITTEE) IN THE DISCHARGE OF ITS DUTIES," ENDICOTT JOHNSON
CORP. V. PERKINS, 317 U.S. 501, 509, BUT, ON THE CONTRARY, WERE
REASONABLY "RELEVANT TO THE INQUIRY," OKLAHOMA PRESS PUBLISHING CO. V.
WALLING, 327 U.S. 186, 209. 

FINALLY, PETITIONER CONTENDS THAT THE SUBPOENA WAS SO BROAD AS TO
CONSTITUTE AN UNREASONABLE SEARCH AND SEIZURE IN VIOLATION OF THE
FOURTH AMENDMENT OF THE CONSTITUTION.  "ADEQUACY OR EXCESS IN THE
BREADTH OF THE SUBPOENA ARE MATTERS VARIABLE IN RELATION TO THE NATURE,
PURPOSES AND SCOPE OF THE INQUIRY," OKLAHOMA PRESS PUBLISHING CO. V.
WALLING, SUPRA, AT 209.  THE SUBCOMMITTEE'S INQUIRY HERE WAS A
RELATIVELY BROAD ONE - WHETHER "THERE HAS BEEN COMMUNIST ACTIVITY IN
THIS VITAL DEFENSE AREA (DETROIT), AND IF SO, THE NATURE, EXTENT,
CHARACTER AND OBJECTS THEREOF" - AND THE PERMISSIBLE SCOPE OF MATERIALS
THAT COULD REASONABLY BE SOUGHT WAS NECESSARILY EQUALLY BROAD. 

IT IS NOT REASONABLE TO SUPPOSE THAT THE SUBCOMMITTEE KNEW PRECISELY
WHAT BOOKS AND RECORDS WERE KEPT BY THE CIVIL RIGHTS CONGRESS, AND
THEREFORE THE SUBPOENA COULD ONLY "SPECIFY  ...  WITH REASONABLE
PARTICULARITY, THE SUBJECTS TO WHICH THE DOCUMENTS  ...  RELATE," BROWN
V. UNITED STATES, 276 U.S. 134, 143.  THE CALL OF THE SUBPOENA FOR "ALL
RECORDS, CORRESPONDENCE AND MEMORANDA" OF THE CIVIL RIGHTS CONGRESS
RELATING TO THE THREE SPECIFIED SUBJECTS DESCRIBES THEM "WITH ALL OF
THE PARTICULARITY THE NATURE OF THE INQUIRY AND THE SUBCOMMITTEE'S
SITUATION WOULD PERMIT," OKLAHOMA PRESS PUBLISHING CO. V. WALLING,
SUPRA, AT 210, N. 48.  "THE DESCRIPTION CONTAINED IN THE SUBPOENA WAS
SUFFICIENT TO ENABLE PETITIONER TO KNOW WHAT PARTICULAR DOCUMENTS WERE
REQUIRED AND TO SELECT THEM ACCORDINGLY," BROWN V. UNITED STATES,
SUPRA, AT 143.  IF PETITIONER WAS IN DOUBT AS TO WHAT RECORDS WERE
REQUIRED BY THE SUBPOENA, OR FOUND IT UNDULY BURDENSOME, OR FOUND IT TO
CALL FOR RECORDS UNRELATED TO THE INQUIRY, HE COULD AND SHOULD HAVE SO
ADVISED THE SUBCOMMITTEE, WHERE THE DEFECT, IF ANY, "COULD EASILY HAVE
BEEN REMEDIED," UNITED STATES V. BRYAN, SUPRA, AT 333.  THIS SUBPOENA
WAS NOT MORE SWEEPING THAN THOSE SUSTAINED AGAINST CHALLENGES OF UNDUE
BREADTH IN ENDICOTT JOHNSON CORP. V. PERKINS, 317 U.S. 501, AND
OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186. 

UNDER THESE CIRCUMSTANCES, WE CANNOT SAY THAT THE BREADTH OF THE
SUBPOENA WAS SUCH AS TO VIOLATE THE FOURTH AMENDMENT.  AFFIRMED. 

FN1  "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 JOINT
COMMITTEE ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO
HOUSES OF CONGRESS, 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 JAIL FOR NOT LESS THAN
ONE MONTH NOR MORE THAN TWELVE MONTHS." 

FN2  SEE NOTE 4. 

FN3  PETITIONER'S MOTION TO DISMISS CHALLENGED THE INDICTMENT ON THE
GOUNDS, AMONG OTHERS, (1) THAT IT FAILED TO STATE "THE RELATIONSHIP, IF
ANY, BETWEEN THE DEFENDANT AND THE CIVIL RIGHTS CONGRESS WHOSE RECORDS
DEFENDANT WAS REQUIRED TO PRODUCE," OR THAT THEY "WERE SUBJECT TO THE
CONTROL OR IN THE CUSTODY OF THE DEFENDANT"; (2) THAT IT FAILED TO
STATE FACTS SHOWING "THE INQUIRY TO BE WITHIN THE PURVIEW OF THE"
SUBCOMMITTEE, "AND THE RELEVANCY AND MATERIALITY OF THE INQUIRY OF THE
RECORDS CALLED FOR IN THE SUBPOENA"; AND (3) THAT THE SCOPE OF THE
SUBPOENA VIOLATED "DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION." 

FN4 THE LETTER - TAKEN FROM THE SUBCOMMITTEE'S FILES - WAS ON THE
LETTERHEAD OF THE CIVIL RIGHTS CONGRESS, DATED FEBRUARY 16, 1952 - JUST
10 DAYS PRIOR TO THE DETROIT HEARING - OVER PETITIONER'S NAME, AND WHAT
PURPORTED TO BE HIS SIGNATURE, AS EXECUTIVE SECRETARY.  DESPITE THE
IDENTITY OF NAMES AND THE RULE THAT "IDENTITY OF NAMES IS PRIMA FACIE
EVIDENCE OF IDENTITY OF PERSONS," STEBBINS V. DUNCAN, 108 U.S. 32, 47,
THE TRIAL COURT, UPON PETITIONER'S OBJECTION, EXCLUDED THE EXHIBIT FROM
CONSIDERATION BY THE JURY BUT RECEIVED IT FOR HIS OWN CONSIDERATION IN
RESPECT TO THE QUESTIONS OF LAW PRESENTED. 

FN5  SEE ALSO THE COMPANION CASE OF UNITED STATES V. FLEISCHMAN, 339
U.S. 349, WHICH IS EQUALLY RELEVANT TO THESE QUESTIONS. 

DISSENTING OPINION OF MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF
JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE BRENNAN CONCUR, ANNOUNCED BY
MR. JUSTICE BLACK. 

TODAY'S DECISION MARKS SUCH A DEPARTURE FROM THE ACCEPTED PROCEDURE
DESIGNED TO PROTECT ACCUSED PEOPLE FROM PUBLIC PASSION AND OVERBEARING
OFFICIALS THAT I DISSENT. 

THE ACT UNDER WHICH PETITIONER GOES TO PRISON PERMITS CONVICTION ONLY
IF HE "WILLFULLY MAKES DEFAULT" AS A WITNESS BEFORE A CONGRESSIONAL
COMMITTEE.  2 U.S.C. SEC. 192.  THE SUBPOENA COMMANDED HIM TO PRODUCE
THE RECORDS OF "THE CIVIL RIGHTS CONGRESS" AT A GIVEN TIME AND PLACE. 
BUT IT DID NOT NAME PETITIONER AS OFFICER, AGENT, OR MEMBER OF "THE
CIVIL RIGHTS CONGRESS."  THE RECORD CONTAINS NO WORD OF EVIDENCE TO
SHOW (1) THAT PETITIONER WAS AN OFFICER, AGENT, OR MEMBER OF THE CIVIL
RIGHTS CONGRESS, OR (2) THAT PETITIONER WAS IN POSSESSION OF, OR WAS A
CUSTODIAN OF, ANY OF THE RECORDS OF "THE CIVIL RIGHTS CONGRESS."  THE
CONGRESSIONAL COMMITTEE MADE NO EFFORT TO ESTABLISH THESE FACTS. 
NEITHER DID THE PROSECUTOR WHEN THIS CRIMINAL PROCEEDING CAME TO
TRIAL.  THE ONLY EVIDENCE, IF IT CAN BE CALLED SUCH, IS THE REFUSAL OR
FAILURE OF THE PETITIONER TO DENY THOSE FACTS.  (FN1)  THE DISTRICT
COURT CHARGED THE JURY THAT THE FAILURE OF THE PROSECUTION TO ESTABLISH
THOSE FACTS WAS IMMATERIAL FOR THE FOLLOWING REASON: 

"IF YOU FIND FROM THE EVIDENCE IN THIS CASE, AND BEYOND A REASONABLE
DOUBT, THAT THE DEFENDANT APPEARED BEFORE THE SAID SUBCOMMITTEE, AND
THEN REFUSED OR FAILED TO MAKE ANY EXPLANATION WITH RESPECT TO THE
EXISTENCE OF THE RECORDS DESIGNATED IN THE SUBPOENA, OR WITH RESPECT TO
WHETHER OR NOT SUCH RECORDS WERE UNDER HIS POSSESSION OR CONTROL, I
CHARGE YOU THAT YOU MAY NOT CONSIDER THE QUESTIONS OF WHETHER THE
RECORDS AND DOCUMENTS DESIGNATED IN THE SUBPOENA WERE ACTUALLY IN
EXISTENCE OR UNDER THE POSSESSION OR CONTROL OF THE DEFENDANT, BECAUSE
IF THE DEFENDANT HAD LEGITIMATE REASONS FOR FAILING TO PRODUCE THE SAID
RECORDS, HE SHOULD HAVE STATED HIS REASONS FOR NON-COMPLIANCE WITH THE
SUBPOENA WHEN HE APPEARED BEFORE THE SAID SUBCOMMITTEE. 

"I ALSO CHARGE YOU THAT THE DEFENDANT IS NOT EXCUSED FROM COMPLIANCE
WITH OR PRODUCING THE RECORDS DESIGNATED IN THE SUBPOENA MERELY BECAUSE
HE IS NOT DESIGNATED AS AN OFFICER OR AGENT OF THE CIVIL RIGHTS
CONGRESS THEREIN; AND NEITHER IS THE DEFENDANT EXCUSED FROM SUCH
COMPLIANCE WITH THE SAID SUBPOENA MERELY BECAUSE OF ANY LACK OF PROOF
OF ANY CONNECTION BETWEEN THE DEFENDANT AND THE CIVIL RIGHTS
CONGRESS." 

THIS THEORY, NOW SUSTAINED BY THE COURT, PERMITS CONVICTION WITHOUT
ANY EVIDENCE OF ANY "WILLFUL" DEFAULT. 

THE PRESUMPTION OF INNOCENCE, DEEP IN OUR CRIMINAL LAW, HAS BEEN ONE
OF OUR MOST IMPORTANT SAFEGUARDS AGAINST OPPRESSION.  SO FAR AS I CAN
FIND, THIS IS THE FIRST INSTANCE WHERE WE HAVE DISPENSED WITH IT.  WE
DO SO TODAY BY SHIFTING THE BURDEN TO A WITNESS TO SHOW THAT HE IS NOT
AN OFFICER OR AGENT OF THE ORGANIZATION IN QUESTION AND THAT HE IS NOT
ABLE TO PRODUCE THE DOCUMENTS, WITHOUT REQUIRING ANY PROOF WHATSOEVER
BY THE PROSECUTION THAT CONNECTS THE DEFENDANT EITHER WITH THE
ORGANIZATION OR WITH THE DOCUMENTS.  RELIANCE IS PLACED ON UNITED
STATES V. BRYAN, 339 U.S. 323.   WITH ALL DEFERENCE, THAT CASE IS
IRRELEVANT BECAUSE THERE THE WITNESS CONCEDEDLY WAS "THE EXECUTIVE
SECRETARY" OF THE ORGANIZATION BEING INVESTIGATED AND HAD "CUSTODY OF
ITS RECORDS."  ID., 324.  THE ISSUE IN THE CASE CONCERNED THE AUTHORITY
OF THE COMMITTEE TO MAKE THE DEMAND, AUTHORITY CHALLENGED, AT THE TRIAL
BUT NOT BEFORE THE COMMITTEE, BECAUSE NO QUORUM OF THE COMMITTEE WAS
PRESENT WHEN THE WITNESS MADE DEFAULT.  IN UNITED STATES V. FLEISCHMAN,
339 U.S. 349, THERE WAS ALSO EVIDENCE THAT THE DEFENDANT HAD POWER TO
CAUSE THE DOCUMENTS TO BE PRODUCED.  ID., 353-354.  IN THOSE SITUATIONS
THE PROSECUTION PROVES ENOUGH WHEN IT ESTABLISHES CUSTODY OR POWER TO
CONTROL.  ID., 361-363.  AS RESPECTS THE SHIFT OF THE BURDEN OF GOING
FORWARD IN A CRIMINAL PROSECUTION TO THE DEFENDANT (MORRISON V.
CALIFORNIA, 291 U.S. 82, 88, 90-91), MR. JUSTICE CARDOZO SAID, BY WAY
OF DICTUM, "FOR A TRANSFER OF THE BURDEN, EXPERIENCE MUST TEACH THAT
THE EVIDENCE HELD TO BE INCULPATORY HAS AT LEAST A SINISTER
SIGNIFICANCE  ...  OR IF THIS AT TIMES BE LACKING, THERE MUST BE IN ANY
EVENT A MANIFEST DISPARITY IN CONVENIENCE OF PROOF AND OPPORTUNITY FOR
KNOWLEDGE  ...  ."  ID., 90-91.  WHATEVER MAY BE THE REACH OF THAT
DICTUM, IT WAS NOT ADEQUATE TO SUSTAIN A CONVICTION IN THAT CASE AND IS
INADEQUATE HERE.  THAT CASE INVOLVED A CHARGE OF CONSPIRACY TO VIOLATE
THE ALIEN LAND LAW OF CALIFORNIA.  A CITIZEN, CHARGED AS CO
CONSPIRATOR, WAS CONVICTED ON A PRESUMPTION THAT HE KNEW OF THE
DISQUALIFICATION OF HIS CO-CONSPIRATOR ALLEGED TO BE AN ALIEN.  THE
HOLDING OF THE COURT WAS THAT INVOCATION OF THE PRESUMPTION AGAINST THE
CITIZEN DENIED HIM DUE PROCESS.  ID., 93.  THE ALIEN WAS NOT A
CONSPIRATOR, "HOWEVER GUILTY HIS OWN STATE OF MIND," UNLESS THE CITIZEN
"SHARED IN THE GUILTY KNOWLEDGE AND DESIGN."  THEREFORE, SAID MR.
JUSTICE CARDOZO, "THE JOINDER WAS SOMETHING TO BE PROVED, FOR IT WAS OF
THE ESSENCE OF THE CRIME."  ID., 93.  THAT RULING RESTS ON THE
PRESUMPTION OF INNOCENCE THAT IS NEVER OVERCOME UNLESS THE PROSECUTION
INTRODUCES SOME COMPETENT EVIDENCE IMPLICATING THE ACCUSED IN THE
CRIMINAL ACT THAT IS CHARGED.  (FN2)  HERE THE CRIME IS "WILLFUL"
DEFAULT IN THE PRODUCTION OF RECORDS OF "THE CIVIL RIGHTS CONGRESS." 
THERE CAN BE NO "WILLFUL" DEFAULT UNLESS THIS PETITIONER IS SHOWN TO
HAVE (1) SOME CONNECTION WITH THAT ORGANIZATION AND (2) SOME CUSTODY OR
CONTROL OF ITS RECORDS.  SIMPLE QUESTIONS BY THE COMMITTEE MIGHT HAVE
PRODUCED THE NECESSARY ANSWERS.  IT IS HORNBOOK LAW THAT THEY SHOULD
HAVE BEEN ASKED.  (FN3)  YET THEY WERE NOT; AND WITHOUT THE FOUNDATION
WHICH THEY MIGHT HAVE LAID, THE PRESENT PROSECUTION HAS NO STARTING
POINT UNLESS WE ARE TO THROW PROCEDURAL REQUIREMENTS TO THE WINDS. 

FAILURE OF A DEFENDANT TO EXPLAIN WHY HE DOES NOT PRODUCE DOCUMENTS
MAY BE SUFFICIENT UNDER THE CASES, WHERE IT HAS FIRST BEEN SHOWN THAT
HE HAS A CONNECTION WITH THEM.  SEE UNITED STATES V. FLEISCHMAN, SUPRA,
360-363; NILVA V. UNITED STATES, 352 U.S. 385, 392.  BUT FAILURE TO
EXPLAIN, WHERE NO PROOF OF THE DEFENDANT'S CONNECTION WITH THE
DOCUMENTS IS SHOWN, IS LIKE TAKING HIS ACTION IN STANDING MUTE AS A
CONFESSION OF GUILT.  ONCE THAT WAS THE RULE.  SEE IN RE SMITH, 13 F.
25, 26-27; BEALE, CRIMINAL PLEADING AND PRACTICE (1899), P. 52.  ONCE
IT WAS THE RULE THAT A MAN WHO REFUSED TO TAKE AN OATH AND ANSWER IN
CRIMINAL PROCEEDINGS WAS HELD IN CONTEMPT.  TRIAL OF LILBURN, 3 HOW. 
ST. TR. 1315.  SEE MAGUIRE, ATTACK OF THE COMMON LAWYERS ON THE OATH EX
OFFICIO AS ADMINISTERED IN THE ECCLESIASTICAL COURTS IN ENGLAND, ESSAYS
IN HISTORY AND POLITICAL THEORY (1936), C. VII, P. 215. 

TODAY WE TAKE A STEP BACKWARD.  WE ALLOW A MAN TO GO TO PRISON FOR
DOING NO MORE, SO FAR AS THIS RECORD REVEALS, THAN CHALLENGING THE
RIGHT OF A COMMITTEE TO ASK HIM TO PRODUCE DOCUMENTS.  THE CONGRESS HAD
THE RIGHT TO GET THESE DOCUMENTS FROM SOMEONE.  BUT, WHEN IT COMES TO
CRIMINAL PROSECUTIONS, THE GOVERNMENT MUST TURN SQUARE CORNERS.  IF
CONGRESS DESIRES TO HAVE THE JUDICIARY ADJUDGE A MAN GUILTY FOR FAILURE
TO PRODUCE DOCUMENTS, THE PROSECUTION SHOULD BE REQUIRED TO PROVE THAT
THE MAN WHOM WE SEND TO PRISON HAD THE POWER TO PRODUCE THEM. 

FN1  THE RESPONDENT CLAIMS THAT THE COMMITTEE, IF NOT THE COURT, HAD
A "REASONABLE BASIS FOR BELIEVING THAT PETITIONER COULD PRODUCE THE
RECORDS."  THAT BASIS TURNS OUT TO BE A LETTER IN THE COMMITTEE FILES
WHICH THE RESPONDENT MADE NO ATTEMPT TO LINK UP WITH PETITIONER AND
WHICH, FOR THAT REASON, WAS NEVER ADMITTED INTO EVIDENCE. 

FN2  THE ASSAULTS ON THIS PRESUMPTION HAVE BEEN VIGOROUS AND A FEW
LOWER COURTS HAVE SUCCUMBED AS GOLDSTEIN, THE STATE AND THE ACCUSED:
BALANCE OF ADVANTAGE IN CRIMINAL PROCEDURE, 69 YALE L.J. 1149, SHOWS. 

FN3  COUNSEL FOR THE COMMITTEE REPEATEDLY ASKED PETITIONER TO COMPLY
WITH THE SUBPOENA, BUT ONLY ONCE DID HE VENTURE NEAR THE QUESTION OF
PETITIONER'S POWER TO COMPLY.  IN THE CONTEXT OF PETITIONER'S
INVOCATION OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION, MR. TAVENNER
ASKED "IF PETITIONER HAS ANY OTHER REASON FOR REFUSING TO PRODUCE THE
DOCUMENTS CALLED FOR."  AGAIN, THE ASSUMPTION IS THAT THE MERE ISSUE OF
THE SUBPOENA WITHOUT MORE CASTS ON THE WITNESS THE BURDEN OF EXPLAINING
NON-COMPLIANCE. 
..END :




















UPHAUS V. WYMAN 364 U.S. 388 


NO. 336.  DECIDED NOVEMBER 14, 1960 - REPORTED BELOW:  102 N.H. 461, 159
A.2D 160. 


FOR REFUSING TO COMPLY WITH A STATE COURT ORDER TO PRODUCE THE NAMES
OF PERSONS ATTENDING HIS SUMMER CAMP DURING 1954 AND 1955 FOR USE IN AN
INVESTIGATION BY THE ATTORNEY GENERAL OF NEW HAMPSHIRE ON BEHALF OF THE
STATE LEGISLATURE TO DETERMINE WHETHER "SUBVERSIVE PERSONS" WERE THEN
IN THE STATE, PETITIONER WAS ADJUDGED GUILTY OF CIVIL CONTEMPT AND
ORDERED COMMITTED TO JAIL UNTIL HE COMPLIED.  THAT JUDGMENT WAS
SUSTAINED BY THE STATE SUPREME COURT AND BY THIS COURT.  HE THEN
APPEALED AGAIN TO THE STATE SUPREME COURT, CLAIMING THAT, SINCE HIS
FORMER APPEAL, THE STATE LEGISLATURE HAD TERMINATED THE ATTORNEY
GENERAL'S AUTHORITY TO MAKE SUCH AN INVESTIGATION ON ITS BEHALF; BUT
THE STATE SUPREME COURT HELD THAT SUCH AUTHORITY HAD NOT BEEN
TERMINATED.  HELD:  AN APPEAL TO THIS COURT FROM THAT JUDGMENT IS
DISMISSED FOR WANT OF JURISDICTION, SINCE THAT JUDGMENT IS BASED ON A
NONFEDERAL GROUND. 

UPHAUS V. WYMAN, ATTORNEY GENERAL OF NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

PER CURIAM. 

IN VIEW OF THE COURT'S DECISION IN UPHAUS V. WYMAN, 360 U.S. 72,
REHEARING DENIED, 361 U.S. 856, THE MOTION TO DISMISS IS GRANTED AND
THE APPEAL HEREIN IS DISMISSED FOR WANT OF JURISDICTION, IN THAT THE
JUDGMENT SOUGHT TO BE REVIEWED IS BASED ON A NON-FEDERAL GROUND. 

MR. JUSTICE BRENNAN. 

THE NEW HAMPSHIRE SUPREME COURT HAS HELD IN THIS PROCEEDING THAT THE
NEW HAMPSHIRE LEGISLATURE STILL WANTED DR. UPHAUS' ANSWERS ON DECEMBER
14, 1959, NOTWITHSTANDING THE OMISSION FROM LAWS 1957, C. 178, OF THE
PROVISION OF LAWS 1955, CC. 340 AND 197, AUTHORIZING THE ATTORNEY
GENERAL "TO DETERMINE WHETHER SUBVERSIVE PERSONS  ...  ARE PRESENTLY
LOCATED WITHIN THIS STATE," WYMAN V. UPHAUS, 102 N.H. 461, 159 A.2D
160; ON DENIAL OF MOTION FOR BAIL, 102 N.H. 517, 162 A.2D 611.  WE ARE
BOUND BY THE HIGHEST STATE COURT'S CONSTRUCTION OF THE PERTINENT NEW
HAMPSHIRE STATUTES.  WE MUST THEREFORE CONSIDER THE SUBSTANTIALITY OF
THE FEDERAL CONSTITUTIONAL QUESTIONS PRESENTED ON THIS APPEAL ON THE
BASIS OF THAT CONSTRUCTION AND NOT UPON THE PREMISE URGED BY DR. UPHAUS
THAT THE 1957 STATUTE SHOWS THAT THE LEGISLATURE ON DECEMBER 14, 1959,
NO LONGER WANTED HIM TO PRODUCE THE LIST OF NAMES.  IN CONSEQUENCE,
WHILE I REMAIN OF THE VIEW THAT THE COURT IN UPHAUS V. WYMAN, 360 U.S.
72, INCORRECTLY SUSTAINED THE PREVIOUS ORDER OF CIVIL CONTEMPT MADE
AGAINST DR. UPHAUS, SEE DISSENT AT PAGE 82, THAT HOLDING, WHILE IT
STANDS, ALSO SUSTAINS THE ORDER CHALLENGED ON THIS APPEAL.  SOLELY
UNDER COMPULSION OF THAT DECISION, I THINK THAT THE APPEAL MUST BE
DISMISSED AS NOT PRESENTING A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

I CONCUR IN THE DISSENT OF MR. JUSTICE DOUGLAS AND AGREE WITH HIM
THAT SINCE THE NEW HAMPSHIRE LAW UPHELD BY THIS COURT IN UPHAUS V.
WYMAN, 360 U.S. 72, HAS NOW BEEN CHANGED, NEW FEDERAL QUESTIONS ARE
PRESENTED WHICH CANNOT BE DISMISSED AS INVOLVING ONLY THE CORRECTNESS
OF A RULING ON LOCAL LAW, AND THAT WE CONSEQUENTLY SHOULD NOT DISMISS
THIS APPEAL BUT SHOULD NOTE JURISDICTION, GRANT BAIL AND HEAR
ARGUMENTS.  THE RECENT AMENDMENT WITHDREW THE POWER, INVOLVED IN THE
PREVIOUS APPEAL, WHICH AUTHORIZED THE ATTORNEY GENERAL OF NEW HAMPSHIRE
"TO DETERMINE WHETHER SUBVERSIVE PERSONS  ...  ARE PRESENTLY LOCATED
WITHIN" THE STATE, AND THUS TOOK AWAY THE VERY POWER UNDER WHICH THE
ATTORNEY GENERAL WAS ACTING WHEN HE DEMANDED THE NAMES OF GUESTS AT THE
SUMMER CAMP IN NEW HAMPSHIRE MANAGED BY THE APPELLANT, DR. WILLARD
UPHAUS.  NOTWITHSTANDING THAT FACT, THE NEW HAMPSHIRE COURTS HAVE HELD
THAT THE STATE STILL HAS AN INTEREST IN THOSE NAMES SUFFICIENT TO
JUSTIFY THE CONTINUED IMPRISONMENT OF DR. UPHAUS FOR HIS REFUSAL TO
COMPLY WITH THE DEMAND TO PRODUCE THEM.  (FN1)  THIS APPEAL THEREFORE
RAISES FEDERAL QUESTIONS AS TO WHETHER THIS LATTER HOLDING VIOLATES THE
FEDERAL CONSTITUTION.  I THINK THAT THE COURT'S ACTION TODAY IN
TREATING THOSE FEDERAL QUESTIONS AS INSUBSTANTIAL (FN2) IS WRONG IN AT
LEAST TWO DIFFERENT RESPECTS. 

FIRST, I THINK THIS ACTION IS INCONSISTENT WITH THE COURT'S OWN TEST
AS SET FORTH IN ITS OPINION ON THE PRIOR APPEAL AND THERE USED TO
SQUARE THE IMPRISONMENT OF DR. UPHAUS WITH THE FIRST AMENDMENT.  THAT
TEST WAS STATED IN THESE TERMS:  "THE INTEREST OF THE GUESTS AT WORLD
FELLOWSHIP IN THEIR ASSOCIATIONAL PRIVACY HAVING BEEN ASSERTED, WE HAVE
FOR DECISION THE FEDERAL QUESTION OF WHETHER THE PUBLIC INTERESTS
OVERBALANCE THESE CONFLICTING PRIVATE ONES."  (FN3)  THIS REQUIRED THE
COURT TO WEIGH THE INTEREST OF THOSE GUESTS AGAINST THE INTEREST OF THE
STATE, AS BROADLY EXPRESSED BY ITS LEGISLATURE, IN KNOWING "WHETHER
SUBVERSIVE PERSONS  ...  ARE PRESENTLY LOCATED WITHIN" THE STATE, A
BALANCING PROCESS (FN4) WHICH THERE RESULTED IN THE CONCLUSION THAT THE
STATE INTEREST MUST PREVAIL.  NOW, HOWEVER, IT IS CLEAR THAT THE
INTEREST OF THE STATE SO WEIGHED NO LONGER EXISTS AND A NEW BALANCE
MUST BE MADE IF THE INVASION OF "ASSOCIATIONAL PRIVACY" PREVIOUSLY
SANCTIONED IS TO BE PERMITTED TO CONTINUE.  BUT THIS THE COURT REFUSES
TO DO, APPARENTLY ON THE THEORY THAT THE PRESENT APPEAL IS CONTROLLED
BY THE PREVIOUS DISPOSITION.  IT SEEMS TO ME THAT "BALANCING" WHICH
REFUSES TO TAKE NOTE OF SUCH AN IMPORTANT CHANGE IN THE INTEREST OF THE
STATE IS LITTLE BALANCING AT ALL - A MERE ILLUSION, IN FACT. 

SECONDLY, IT SEEMS TO ME THAT THE RECORD AS IT NOW STANDS BEFORE THIS
COURT REQUIRES A REAPPRAISAL OF THE QUESTION WHETHER THE ACTIONS OF THE
STATE OF NEW HAMPSHIRE CONSTITUTE A BILL OF ATTAINDER IN VIOLATION OF
ART. I, SEC. 10, OF THE CONSTITUTION.  ON THE PRIOR APPEAL, THE
MAJORITY OF THIS COURT HELD THAT THE RECORD AS IT THEN STOOD WOULD NOT
JUSTIFY SUCH A CONCLUSION.  THE PRESENT RECORD, HOWEVER, PRESENTS NEW
FACTS RELEVANT TO THAT ISSUE.  FOR HERE WE ARE CONFRONTED WITH A
SITUATION IN WHICH THE COURTS OF NEW HAMPSHIRE HAVE STATED THAT IT WAS
THE INTENTION OF THE LEGISLATURE OF THAT STATE TO PERMIT THE ATTORNEY
GENERAL TO SINGLE OUT DR. UPHAUS AND ANY OTHERS (IF, INDEED, THERE ARE
ANY OTHERS) AGAINST WHOM INVESTIGATIVE PROCEEDINGS HAD ALREADY BEEN
COMMENCED AND TO PURSUE THOSE PROCEEDINGS, NOT IN FURTHERANCE OF ANY
GENERAL AIM OF THE STATE - THAT GENERAL AIM, IF IT EVER EXISTED, HAS
BEEN ABANDONED BY THE AMENDMENT - BUT APPARENTLY FOR THE SOLE PURPOSE
OF SETTING THESE PEOPLE OFF FOR SPECIAL TREATMENT.  WHAT THIS SPECIAL
TREATMENT IS TO BE IS CLEARLY SHOWN BY THE BRIEF FILED BEFORE THIS
COURT IN THIS APPEAL BY THE STATE ATTORNEY GENERAL HIMSELF, WHO
ADMINISTERS THE ACT.  THAT BRIEF STATES UNEQUIVOCALLY THAT "THOSE WHO
VOLUNTARILY AND KNOWINGLY APPEAR WITH, CONSULT WITH, CONFER WITH,
ATTEND FUNCTIONS WITH AND OTHERWISE ACT IN CONCERT WITH COMMUNISTS OR
FORMER COMMUNISTS IN AMERICA CANNOT POSSIBLY HAVE ANY REASONABLE RIGHT
OF PRIVACY IN REGARD TO SUCH ACTIVITIES  ...  ."  (FN5)  IN THE LIGHT
OF ALL THESE NEW FACTS, THE DECISION UPON THE FORMER APPEAL IS NOT AND
CANNOT PROPERLY BE HELD TO BE DISPOSITIVE OF THE QUESTION WHETHER THIS
RECORD SHOWS THAT NEW HAMPSHIRE IS UNCONSTITUTIONALLY IMPOSING A BILL
OF ATTAINDER UPON DR. UPHAUS. 

I THINK THE SUMMARY DISMISSAL OF THIS APPEAL WITHOUT EVEN SO MUCH AS
THE BENEFIT OF ORAL ARGUMENT, WHEN THE ABRIDGMENT OF THE RIGHTS OF FREE
SPEECH AND ASSEMBLY IS SO OBVIOUS, IS A SAD INDICATION OF JUST HOW FAR
THIS COURT HAS ALREADY DEPARTED FROM THE PROTECTIONS OF THE BILL OF
RIGHTS AND AN OMEN OF THINGS YET TO COME.  SUCH RETROGRESSION, OF
COURSE, FOLLOWS NATURALLY FROM THE COURT'S RECENT TREND TOWARD
SUBSTITUTING FOR THE PLAIN LANGUAGE OF THE COMMANDS OF THE BILL OF
RIGHTS ELASTIC CONCEPTS WHICH PERMIT THE COURT TO UPHOLD DIRECT
ABRIDGMENTS OF LIBERTY UNLESS THE COURT VIEWS THOSE ABRIDGMENTS AS
"ARBITRARY," "UNREASONABLE," "OFFENSIVE TO DECENCY" OR "UNJUSTIFIED ON
BALANCE," (FN6) FOR THESE CONCEPTS REDUCE THE ABSOLUTE COMMANDS OF THE
CONSTITUTION TO MERE ADMONITIONS.  I THINK IT IS TIME FOR ALL WHO
CHERISH THE LIBERTIES GUARANTEED BY THE BILL OF RIGHTS TO LOOK CLOSELY
AT THE DISASTROUS CONSEQUENCES UPON THOSE LIBERTIES WHICH HAVE RESULTED
FROM THE COURT'S USE OF SUCH CONCEPTS.  THE PRESENT CASE GRAPHICALLY
ILLUSTRATES THOSE CONSEQUENCES WHEN IT IS STRIPPED OF THE AMBIGUOUS
LEGAL FORMULATIONS WHICH HAVE BEEN IMPOSED UPON IT AND CONSIDERED IN
THE CONTEXT IN WHICH IT ACTUALLY AROSE - THE CONDUCT OF DR. UPHAUS AS
AN INDIVIDUAL. 

HE IS A CITIZEN OF THIS COUNTRY BY BIRTH.  THROUGHOUT THE NEARLY
SEVENTY YEARS OF HIS LIFE, EVIDENTLY FROM EARLY BOYHOOD, HE HAS BEEN A
DEEPLY RELIGIOUS PERSON.  THE RECORD SHOWS HIS ACTIVE MEMBERSHIP IN AND
OFFICIAL SERVICE FOR VARIOUS METHODIST CHURCHES IN THE COMMUNITIES
WHERE HE HAS LIVED.  THE VALUE OF THAT MEMBERSHIP AND THOSE SERVICES IS
ATTESTED BY AFFIDAVITS FILED BY THE PASTORS OF THOSE CHURCHES.  THE
RECORD FURTHER INDICATES, WITHOUT DISPUTE, THAT HE IS A MAN WHOSE LIFE
HAS BEEN DEDICATED TO THE PRINCIPLES OF HIS RELIGION.  HE HOLDS A
DEGREE AS A DOCTOR OF THEOLOGY.  HE TAUGHT RELIGIOUS EDUCATION AT YALE
UNIVERSITY AND WAS ASSOCIATED WITH THE RELIGION AND LABOR FOUNDATION
FOR A NUMBER OF YEARS.  OVER THE YEARS, HIS RELIGIOUS FAITH MANIFESTED
ITSELF IN AN INCREASING OPPOSITION TO WAR.  IT WAS THIS BELIEF WHICH
LED HIM, IN 1952, TO BECOME THE DIRECTOR OF WORLD FELLOWSHIP, INC., A
SUMMER CAMP OPERATED, HE SAYS, IN THE INTEREST OF PROMOTING THE IDEAS
OF PACIFISM. 

ALMOST IMMEDIATELY UPON HIS ARRIVAL AT WORLD FELLOWSHIP, DR. UPHAUS
CAME UNDER THE FIRE OF AN INVESTIGATION BEING CONDUCTED BY THE ATTORNEY
GENERAL OF NEW HAMPSHIRE, APPARENTLY ON THE THEORY THAT WORLD
FELLOWSHIP WAS FREQUENTED BY "SUBVERSIVE" PERSONS.  EVENTUALLY, AS THE
DIRECTOR OF WORLD FELLOWSHIP, HE WAS CALLED BEFORE THE ATTORNEY GENERAL
TO TESTIFY.  AT THE VERY OUTSET OF THE HEARING BEFORE THE ATTORNEY
GENERAL, HE EXPRESSED A COMPLETE WILLINGNESS TO ANSWER ANY QUESTION
CONCERNING HIMSELF, INCLUDING ANY VIEWS HE MIGHT HOLD OR ANY ACTIONS HE
MIGHT HAVE TAKEN WITH REGARD TO ANY SUBJECT.  IN ADDITION, HE EXPRESSED
A WILLINGNESS TO GIVE THE ATTORNEY GENERAL ANY INFORMATION WHICH MIGHT
BE WANTED IN REGARD TO THE SUBJECT MATTER OF ANY SPEECHES MADE AT WORLD
FELLOWSHIP.  BUT HE ABSOLUTELY REFUSED TO GIVE THE ATTORNEY GENERAL:
(1) A LIST OF THE NONPROFESSIONAL EMPLOYEES OF THE CAMP; (2) A LIST OF
ALL THE GUESTS WHO HAD STAYED AT THE CAMP; AND (3) HIS PERSONAL
CORRESPONDENCE WITH THE SPEAKERS WHO HAD APPEARED AT THE CAMP.  UPON
BEING MET WITH THIS REFUSAL, THE ATTORNEY GENERAL SOUGHT A COURT ORDER
REQUIRING DR. UPHAUS TO PRODUCE THESE ITEMS.  AT THE RESULTING HEARING,
THE COURT, APPARENTLY VIEWING THE REQUEST OF THE ATTORNEY GENERAL FOR
THE NAMES OF THE CAMP'S DISHWASHERS AND FLOOR SWEEPERS AS TOTALLY
UNREASONABLE AND BEING UNCERTAIN AS TO THE LEGAL AMENABILITY TO
SUBPOENA OF THE CORRESPONDENCE, ORDERED DR. UPHAUS TO PRODUCE ONLY THE
NAMES OF THE GUESTS.  THIS, DR. UPHAUS PERSISTED, HE COULD NOT DO,
RESTING HIS REFUSAL UPON THE FOLLOWING REASONS, TO WHICH HE HAS ADHERED
THROUGHOUT THIS LONG ORDEAL:  (1) BECAUSE "BY THE DIRECT TEACHINGS OF
THE BIBLE  ...  IT IS WRONG TO BEAR FALSE WITNESS AGAINST MY BROTHER;
AND IN AS MUCH AS I HAVE NO REASON TO BELIEVE THAT ANY OF THESE PERSONS
WHOSE NAMES HAVE BEEN CALLED FOR HAVE IN ANY SENSE HURT THIS STATE OR
OUR COUNTRY, I HAVE REASON TO BELIEVE THAT THEY SHOULD NOT BE IN THE
POSSESSION OF THE ATTORNEY GENERAL"; (2) BECAUSE "THE SOCIAL TEACHINGS
OF THE METHODIST CHURCH TEACH US CLEARLY AND SPECIFICALLY THAT WE IN
THE UNITED STATES SHOULD STAND UP AND UPHOLD CIVIL AND RELIGIOUS
RIGHTS; AND IN PARTICULAR, IT CONDEMNS GUILT BY ASSOCIATION"; (FN7) AND
(3) BECAUSE "I LOVE THIS DOCUMENT (THE BILL OF RIGHTS) AND I PROPOSE TO
UPHOLD IT WITH THE FULL STRENGTH AND POWER OF MY SPIRIT AND
INTELLIGENCE." 

NONETHELESS, THE ORDER TO PRODUCE WAS UPHELD AND DR. UPHAUS WAS
IMPRISONED FOR HIS FAILURE TO COMPLY WITH IT.  AS A RESULT, HE HAS BEEN
IN JAIL SINCE LAST DECEMBER 14 UNDER A JUDGMENT WHICH SENTENCED HIM TO
IMPRISONMENT FOR ONE YEAR OR UNTIL SUCH TIME AS HE WOULD COMPLY WITH
THE ORDER TO PRODUCE.  HIS PLIGHT, HOWEVER, IS EVEN WORSE THAN WOULD
NORMALLY BE INDICATED BY THAT SENTENCE IN THAT THERE CAN BE NO
ASSURANCE AT ALL THAT HE WILL BE RELEASED AT THE END OF THE YEAR
SPECIFIED.  THE ATTORNEY GENERAL OF NEW HAMPSHIRE INSISTS,
NOTWITHSTANDING THE RECENT LEGISLATION REDUCING HIS POWERS, THAT HE HAS
A RIGHT TO CONTINUE ALL INVESTIGATIONS PRESENTLY PENDING, AND THE
SUPREME COURT OF NEW HAMPSHIRE APPARENTLY AGREES WITH HIM.  THIS COURT,
BY ITS ACTION TODAY, NECESSARILY TAKES THE POSITION THAT THIS SERIOUS
ABRIDGMENT OF THE RIGHTS OF FREE SPEECH AND PEACEABLE ASSEMBLY DOES NOT
EVEN RAISE A SUBSTANTIAL FEDERAL QUESTION.  AS A RESULT, IT IS ENTIRELY
POSSIBLE THAT DR. UPHAUS WILL BE SUBJECTED TO NEW QUESTIONING AND
FORCED INTO A NEW "CONTEMPT" AS SOON AS HE SERVES OUT THIS YEAR'S
IMPRISONMENT.  THE BRIEF FILED BY THE ATTORNEY GENERAL OF NEW HAMPSHIRE
MAKES IT APPEAR THAT HE HAS EVERY INTENTION OF DOING JUST THAT.  THUS,
A DISTINCT POSSIBILITY EXISTS THAT THIS MAN WHO, AT LEAST SO FAR AS
THESE RECORDS SHOW, HAS NEVER COMMITTED A SINGLE CRIME, NOR EVEN SO
MUCH AS AN IMMORAL ACT, FACES IMPRISONMENT FOR THE REST OF HIS LIFE. 
THIS SIMPLY BECAUSE HE HAS REFUSED TO VIOLATE HIS RELIGIOUS PRINCIPLES
AND SACRIFICE HIS CONSTITUTIONAL RIGHTS BY DISCLOSING THE NAMES OF
THOSE WITH WHOM HE HAS PEACEABLY ASSEMBLED TO DISCUSS PUBLIC AFFAIRS IN
THIS COUNTRY. 

IN THIS RESPECT, THE PREDICAMENT OF DR. UPHAUS MAY BE LIKENED TO THAT
OF THE DEFENDANT IN THE FAMOUS SHERIFF'S CASE BEFORE THE HOUSE OF LORDS
IN 1767.  (FN8)  THERE THE CITY OF LONDON SOUGHT TO PROSECUTE A
RELIGIOUS DISSENTER FOR REFUSING TO SERVE IN THE OFFICE OF SHERIFF AS
REQUIRED BY ITS BY-LAWS.  THE DEFENSE WAS THAT THE CORPORATION ACT
(FN9) WOULD HAVE MADE IT A CRIME FOR A DISSENTER TO SERVE IN THAT
OFFICE FOR IT REQUIRED AN OATH FROM ALL OFFICEHOLDERS THAT THEY HAD
TAKEN THE SACRAMENTS OF THE CHURCH OF ENGLAND WITHIN THE YEAR.  THE
DILEMMA OF THE DISSENTER WAS VIVIDLY DESCRIBED BY LORD MANSFIELD IN
STATING HIS VIEWS ON THE CASE:    "MAKE A LAW TO RENDER THEM INCAPABLE
OF OFFICE; MAKE ANOTHER, TO PUNISH THEM FOR NOT SERVING  ... .  IF THEY
ACCEPT, PUNISH THEM; IF THEY REFUSE, PUNISH THEM; IF THEY SAY, YES,
PUNISH THEM; IF THEY SAY, NO, PUNISH THEM.  MY LORDS, THIS IS A MOST
EXQUISITE DILEMMA, FROM WHICH THERE IS NO ESCAPING; IT IS A TRAP A MAN
CANNOT GET OUT OF; IT IS AS BAD PERSECUTION AS THE BED OF PROCRUSTES:
IF THEY ARE TOO SHORT, STRETCH THEM; IF THEY ARE TOO LONG, LOP THEM." 
(FN10) 

THIS TECHNIQUE OF PUTTING UNORTHODOX GROUPS INTO A POSITION WHERE
THEIR ONLY REAL CHOICE IS BETWEEN VARIOUS ALTERNATIVE PUNISHMENTS (A
TECHNIQUE THE PREVALENCE OF WHICH TODAY EXTENDS FAR BEYOND THE BORDERS
OF NEW HAMPSHIRE) IS STRIKINGLY SIMILAR TO THAT BEING UTILIZED HERE
AGAINST DR. UPHAUS.  IF HE TESTIFIES, HIS FRIENDS WILL SUFFER; IF HE
REFUSES TO TESTIFY, HE GOES TO JAIL.  THE DILEMMA IS TRULY ONE "FROM
WHICH THERE IS NO ESCAPING" FOR A MAN WHO, LIKE DR. UPHAUS OR LIKE THE
RELIGIOUS DISSENTER IN THE SHERIFF'S CASE, CANNOT BRING HIMSELF TO
SACRIFICE EITHER HIS RELIGIOUS PRINCIPLES OR HIS LEGAL RIGHTS. 

THAT CASE ALSO SERVES TO HIGHLIGHT A MOST UNFORTUNATE ASPECT OF THE
DECISION IN THIS CASE.  FOR THERE, NEARLY TWO HUNDRED YEARS AGO AND IN
ENGLAND WHERE THERE WAS NO BILL OF RIGHTS, THE HOUSE OF LORDS REFUSED
TO COUNTENANCE THE USE OF THAT TECHNIQUE.  THEY HELD IT TO BE
INCONSISTENT WITH THE TOLERATION ACT (FN11) BY WHICH PARLIAMENT HAD
GUARANTEED RELIGIOUS FREEDOM EVEN THOUGH THE TERMS OF THAT GUARANTEE
WERE FAR LESS SWEEPING AND MORE LIMITED IN APPLICATION THAN THE
ABSOLUTE COMMANDS OF OUR FIRST AMENDMENT.  IN MY VIEW, THE MAJORITY'S
DISPOSITION OF THIS CASE, REDUCING AS IT DOES THOSE ABSOLUTE COMMANDS
TO MERE ADMONITIONS, MEANS THAT OUR FIRST AMENDMENT AMOUNTS TO
SOMETHING LESS AS A CHARTER OF FREEDOM THAN ENGLAND'S TOLERATION ACT
WAS HELD TO BE.  THIS IN THE VERY FACE OF THE INDISPUTABLE HISTORICAL
FACT THAT ONE OF THE PRIMARY REASONS FOR THE ESTABLISHMENT OF THIS
COUNTRY WAS THE DESIRE OF EARLY SETTLERS TO ESCAPE RELIGIOUS
PERSECUTION. 

I DO NOT SUGGEST, OF COURSE, THAT THIS IMPRISONMENT OF DR. UPHAUS IS
WITHOUT PRECEDENT IN HISTORY.   INDEED, I AM PAINFULLY AWARE THAT THERE
ARE A MULTITUDE OF SUCH PRECEDENTS EXTENDING FROM MANY CENTURIES BACK
IN THE PAST AND CONTINUING FORWARD IN AN ALMOST UNBROKEN LINE TO THE
PRESENT DAY.  THERE IS, FOR EXAMPLE, THE CASE OF THE PURITAN MINISTER
JOHN UDALL IN 1590, A CASE WHICH BEARS A STRONG SIMILARITY TO THAT OF
DR. UPHAUS.  UDALL WAS CALLED BEFORE A COURT IN CONNECTION WITH THE
INVESTIGATION OF THE AUTHORSHIP OF CERTAIN RELIGIOUS TRACTS WHICH, IN
THE WORDS OF ONE OF THE JUDGES, "TENDED TO THE OVERTHROWING OF THE
STATE, AND THE MOVING OF REBELLION."  (FN12)  THAT COURT SOUGHT TO
FORCE UDALL TO DISCLOSE THE IDENTITY OF OTHER PURITANS SO THAT IT MIGHT
QUESTION THEM AS TO THE AUTHORSHIP OF THE TRACTS.  IN REFUSING TO
DIVULGE THE DEMANDED NAMES, UDALL GAVE HIS REASONS IN A STATEMENT NOT
UNLIKE THAT OF DR. UPHAUS BEFORE THE NEW HAMPSHIRE COURT.  "I WILL TAKE
AN OATH OF ALLEGIANCE TO HER MAJESTY, WHEREIN I WILL ACKNOWLEDGE HER
SUPREMACY ACCORDING TO STATUTE, AND PROMISE MY OBEDIENCE AS BECOMETH A
SUBJECT; BUT TO SWEAR TO ACCUSE MYSELF OR OTHERS, I THINK YOU HAVE NO
LAW FOR IT."  (FN13)  UDALL, LIKE DR. UPHAUS, WAS SENTENCED TO JAIL FOR
CIVIL CONTEMPT UNDER A JUDGMENT WHICH ORDERED HIS IMPRISONMENT UNTIL
SUCH TIME AS HE WOULD CONSENT TO TESTIFY.  (FN14) BUT SUCH COERCION WAS
AS INEFFECTIVE IN THAT CASE AS IT HAS BEEN TO DATE IN THIS.  UDALL'S
DAUNTLESS SPIRIT WAS NEVER BROKEN EVEN THOUGH HIS BODY WAS.  HE DIED IN
PRISON WITHIN A FEW YEARS. 

IT WOULD NOT BE DIFFICULT TO POINT OUT MANY OTHER CASES SUCH AS THAT
OF UDALL, BUT I WILL CONTENT MYSELF WITH ONE OTHER.  SOME SEVENTY YEARS
AFTER JOHN UDALL'S EXPERIENCES, THERE WAS A DISSENTING PREACHER IN
ENGLAND NAMED JOHN BUNYAN.  HE WAS ARRESTED FOR PREACHING AND EFFORTS
WERE MADE TO GET HIM TO AGREE NOT TO PREACH ANY MORE.  HE REFUSED TO BE
COERCED INTO SILENCE.  THE RESULT WAS THAT HE WAS PUT THROUGH A KIND OF
TRIAL (FN15) AND SENTENCED TO PRISON FOR HOLDING "SEVERAL UNLAWFUL
RELIGIOUS MEETINGS  ...  TO THE GREAT DISTURBANCE AND DISTRACTION OF
THE GOOD SUBJECTS OF THIS KINGDOM  ...  ."  (FN16)  IN BUNYAN'S CASE
THE IMPRISONMENT LASTED 12 YEARS, AND IT WAS DURING THOSE 12 YEARS THAT
HE GAVE TO THE WORLD THE PILGRIM'S PROGRESS.  (FN17)  ONE OF THE JUDGES
WHO ACQUIESCED (FN18) IN THE IMPRISONMENT OF BUNYAN WAS SIR MATTHEW
HALE, LATER LORD CHIEF JUSTICE HALE, A MAN DESCRIBED BY LORD CAMPBELL
AS "ONE OF THE MOST PURE, THE MOST PIOUS, THE MOST INDEPENDENT, AND THE
MOST LEARNED" CHIEF JUSTICES ENGLAND EVER HAD.  (FN19)  THAT THIS
DESCRIPTION IS NOT ENTIRELY UNJUSTIFIED, DESPITE THE FACT THAT HIS
RECORD WAS ALSO MARRED BY THE PART HE TOOK IN THE CONVICTION AND
SENTENCING TO DEATH OF TWO UNFORTUNATE WOMEN AS WITCHES, (FN20) IS, I
THINK, A TRAGIC COMMENTARY UPON THE RECORD OF THE JUDICIARY, DURING
THAT PERIOD, IN DISCHARGING ITS DUTY TO PROTECT CIVIL LIBERTIES.  IT IS
PERHAPS ONE OF THE IRONIES OF HISTORY THAT THE NAME OF JOHN BUNYAN, A
POOR TINKER AND PREACHER, IS AT LEAST AS WELL KNOWN AND RESPECTED TODAY
AS THAT OF THE GREAT CHIEF JUSTICE OF ENGLAND WHO PERMITTED HIM TO
LANGUISH IN JAIL. 

MY GUESS IS THAT HISTORY WILL LOOK WITH NO MORE FAVOR UPON THE
IMPRISONMENT OF WILLARD UPHAUS THAN IT HAS UPON THAT OF UDALL, BUNYAN
OR THE MANY OTHERS LIKE THEM.  FOR THIS IS ANOTHER OF THAT EVER
LENGTHENING LINE OF CASES WHERE PEOPLE HAVE BEEN SENT TO PRISON AND
KEPT THERE FOR LONG PERIODS OF THEIR LIVES BECAUSE THEIR BELIEFS WERE
INCONSISTENT WITH THE PREVAILING VIEWS OF THE MOMENT.  I BELIEVE THE
FIRST AND FOURTEENTH AMENDMENTS WERE INTENDED TO PREVENT ANY SUCH
IMPRISONMENTS IN THIS COUNTRY.  THE GROUNDS URGED BY THE ATTORNEY
GENERAL OF NEW HAMPSHIRE HERE ARE, AS SHOWN BY THE CASES OF UDALL AND
BUNYAN, PRECISELY THOSE THAT HAVE ALWAYS BEEN URGED FOR THROWING
DISSENTERS IN JAIL, NAMELY, THAT THEY ARE A MENACE TO THE COMMUNITY AND
IT IS DANGEROUS TO LEAVE THEM FREE.  IT MAY BE TRUE, AS THE ATTORNEY
GENERAL OF NEW HAMPSHIRE SUSPECTS, THAT DR. UPHAUS HAS AT SOME TIME
BEEN IN THE COMPANY OF COMMUNISTS, OR THAT THE PEOPLE WHO HAVE BEEN IN
HIS CAMP HAVE BEEN IN THE COMPANY OF COMMUNISTS.  BUT EVEN IF IT IS
TRUE AND THOSE ASSOCIATES ARE AS BAD AS THEY ARE SUSPECTED TO BE, IT IS
MY BELIEF THAT OUR CONSTITUTION WITH ITS BILL OF RIGHTS ABSOLUTELY
FORBIDS THE IMPOSITION OF PAINS AND PENALTIES UPON HIM FOR PEACEABLY
ASSEMBLING WITH THEM.  THAT GREAT CHARTER WAS DRAFTED BY MEN WHO WERE
WELL AWARE OF THE CONSTANT DANGER TO INDIVIDUAL LIBERTY IN A COUNTRY
WHERE PUBLIC OFFICIALS ARE PERMITTED TO HARASS AND PUNISH PEOPLE ON
NOTHING MORE THAN CHARGES THAT THEY ASSOCIATE WITH OTHERS LABELED BY
THE GOVERNMENT AS PUBLICANS AND SINNERS. 

FN1  AS INDICATED BY MY CONCURRENCE IN THE OPINION OF MR. JUSTICE
DOUGLAS, I THINK THE BETTER INTERPRETATION OF THAT HOLDING IS THAT IT
RESTS UPON THE THEORY THAT THE IMPRISONMENT IS FOR CRIMINAL CONTEMPT,
AND I THINK THAT MR. JUSTICE DOUGLAS CONCLUSIVELY DEMONSTRATES THAT IF
THAT IS SO, THIS COURT CANNOT PROPERLY REFUSE REVIEW OF THAT
IMPRISONMENT.  BUT THE COURT'S DISMISSAL OF THE APPEAL IS AN IMPLICIT
HOLDING THAT THE NEW HAMPSHIRE SUPREME COURT'S ACTION RESTS UPON THE
CIVIL CONTEMPT THEORY.  EVEN UPON THAT VIEW, HOWEVER, I THINK THE
PRESENT APPEAL RAISES FEDERAL QUESTIONS BOTH NEW AND SUBSTANTIAL. 

FN2  IMPLICIT, OF COURSE, IN THE COURT'S ORDER DISMISSING THIS APPEAL
BECAUSE THE JUDGMENT IS BASED ON A NONFEDERAL GROUND IS THE HOLDING
THAT THE FEDERAL QUESTIONS ACTUALLY PRESENTED ARE INSUBSTANTIAL. 

FN3  360 U.S., AT 78. 

FN4  MY OPINION OF THIS BALANCING PROCESS, WHEN APPLIED AS HERE TO
JUSTIFY DIRECT ABRIDGMENTS OF FIRST AMENDMENT FREEDOMS, HAS BEEN FULLY
EXPRESSED IN PREVIOUS CASES.  SEE, E.G., BARENBLATT V. UNITED STATES,
360 U.S. 109, 141-146 (DISSENTING OPINION), BEAUHARNAIS V. ILLINOIS,
343 U.S. 250, 268-270, 274-275 (DISSENTING OPINION). 

FN5  THUS, THE CASE FALLS SQUARELY WITHIN THE HOLDING OF THIS COURT
IN UNITED STATES V. LOVETT, 328 U.S. 303, 315-316, IN THAT IT IMPOSES
SPECIAL PAINS AND PENALTIES UPON AN EASILY ASCERTAINABLE GROUP. 

FN6  SEE, E.G., BEAUHARNAIS V. ILLINOIS, 343 U.S. 250; ROCHIN V.
CALIFORNIA, 342 U.S. 165; AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382. 

FN7  AT THE HEARING UPON REMAND OF THESE PROCEEDINGS TO THE NEW
HAMPSHIRE COURTS FOLLOWING THIS COURT'S AFFIRMANCE OF THE FIRST
CONTEMPT ORDER, DR. UPHAUS EXPANDED THIS SECOND REASON TO ENCOMPASS THE
TEACHINGS OF ALL RELIGIONS.  RELYING UPON A RECENT ARTICLE BY A
PROFESSOR OF CHURCH HISTORY AT HARVARD UNIVERSITY, WILLIAMS, RELUCTANCE
TO INFORM, 14 THEOLOGY TODAY 229, DR. UPHAUS ARGUED THAT HIS POSITION
WITH RESPECT TO INFORMING AGAINST HIS FRIENDS IS REQUIRED BY THE
HISTORIC TRADITIONS OF ALL RELIGIONS.  THAT ARTICLE POINTED TO THE
INDISPUTABLE TRUTH THAT RELIGIOUS GROUPS HAVE TIME AND AGAIN RESORTED
TO A REFUSAL TO INFORM AS A SHIELD AGAINST PERSECUTION. 

FN8  HARRISON V. EVANS, 1 ENG. REP. 1437. 

FN9  13 CHARLES II, C. I. 

FN10  LORD MANSFIELD'S STATEMENT DOES NOT APPEAR IN THE REPORT OF THE
CASE CITED ABOVE.  IT IS, HOWEVER, FULLY REPRODUCED IN THE PALLADIUM OF
CONSCIENCE, A COLLECTION OF WRITINGS ON RELIGIOUS LIBERTY, AT 142,
153. 

FN11  1 WILLIAM & MARY, C. XVIII. 

FN12 1 HOWELL'S STATE TRIALS 1271, 1294. 

FN13  ID., AT 1275. 

FN14  ID., AT 1276.  ALTHOUGH THE TERM "CIVIL CONTEMPT" WAS NOT USED,
THE FOLLOWING COLLOQUY REPORTED BETWEEN UDALL AND THE BISHOP OF
ROCHESTER, ONE OF THE JUDGES AT HIS TRIAL, MAKES IT CLEAR THAT SUCH WAS
THE NATURE OF HIS SENTENCE: 

"ROCH.  THE DAY IS PAST, AND WE MUST MAKE AN END:  WILL YOU TAKE THE
OATH? 

"U.  I DARE NOT TAKE IT. 

"ROCH.  THEN YOU MUST GO TO PRISON, AND IT WILL GO HARD WITH YOU, FOR
YOU MUST REMAIN THERE UNTIL YOU BE GLAD TO TAKE IT." 

FN15  SEE BUNYAN'S OWN REPORT OF THE EVENTS SURROUNDING HIS
IMPRISONMENT, A RELATION OF THE IMPRISONMENT OF MR. JOHN BUNYAN, IN
GRACE ABOUNDING AND THE PILGRIM'S PROGRESS, AT 103-132 (BROWN ED.,
1907). 

FN16  ID., AT 114. 

FN17  BROWN, JOHN BUNYAN, AT 253-262, CASTS SOME DOUBT UPON THIS
TRADITIONAL VERSION OF THE GENESIS OF THE PILGRIM'S PROGRESS BY
SUGGESTING THAT IT WAS WRITTEN, NOT DURING THIS 12 YEARS' IMPRISONMENT,
BUT A FEW YEARS LATER DURING ANOTHER SHORTER INCARCERATION.  SEE, ALSO,
ENCYCLOPAEDIA BRITANNICA, VOL. IV, AT 392 (1957 ED.); DICTIONARY OF
NATIONAL BIOGRAPHY, VOL. III, AT 280. 

FN18  IT IS DIFFICULT TO ASCERTAIN WITH PRECISION THE EXTENT OF
HALE'S PART IN THIS MATTER.  HE WAS NOT ONE OF THE JUDGES WHO CONDUCTED
SUCH TRIAL AS BUNYAN WAS ACCORDED, WHICH RESULTED IN HIS PRISON
SENTENCE.  BUT, SEVERAL MONTHS LATER, HE, WITH JUSTICE TWISDEN, WAS
PRESENTED WITH A PETITION CHALLENGING THE LEGALITY OF BUNYAN'S
CONVICTION AND SEEKING HIS RELEASE.  THE COLLOQUY BETWEEN MRS. BUNYAN,
WHO PRESENTED THAT PETITION, AND THE TWO JUDGES IS REPORTED IN BUNYAN,
A RELATION OF THE IMPRISONMENT, SUPRA, FROM WHICH IT APPEARS THAT HALE
WAS QUITE SYMPATHETIC TO BUNYAN'S PLIGHT.  NONETHELESS, HE REFUSED TO
ORDER HIS RELEASE, APPARENTLY ON THE BELIEF THAT HE WAS POWERLESS TO DO
SO.  THUS HE IS QUOTED AS HAVING SAID:  "I AM SORRY, WOMAN, THAT I CAN
DO THEE NO GOOD; THOU MUST DO ONE OF THOSE THREE THINGS AFORESAID,
NAMELY; EITHER TO APPLY THYSELF TO THE KING, OR SUE OUT HIS PARDON, OR
GET A WRIT OF ERROR  ...  ."  ID., AT 130.  AN ACCURATE EVALUATION OF
THE LEGAL CORRECTNESS OF HALE'S POSITION IS DIFFICULT BUT IT MAY BE
POINTED OUT THAT IT IS INCONSISTENT WITH THE CLAIM MADE IN BUNYAN'S
REPORT THAT HIS WIFE HAD PREVIOUSLY PETITIONED THE HOUSE OF LORDS AND
HAD BEEN TOLD THAT THE QUESTION OF HER HUSBAND'S RELEASE HAD BEEN
PLACED IN THE HANDS OF THE JUDGES AT THE NEXT ASSIZE (THE ASSIZE AT
WHICH HALE AND TWISDEN WERE SITTING), AND ALSO WITH A STATEMENT
ATTRIBUTED TO JUSTICE TWISDEN BY THAT REPORT:  "WHAT, WILL YOUR HUSBAND
LEAVE PREACHING?  IF HE WILL DO SO, THEN SEND FOR HIM."  ID., AT 128. 
ON THE OTHER HAND, JUDGE HALE'S REFUSAL TO ACT WITHOUT A "WRIT OF
ERROR" WAS CONSISTENT WITH THE GENERAL JUDICIAL ATTITUDE OF CAUTION
ATTRIBUTED TO HIM IN 3 HALLAM, THE CONSTITUTIONAL HISTORY OF ENGLAND,
AT 214 (2D ED., 1829).  HALLAM THERE CRITICIZED ENGLISH LAWYERS FOR
"DWELLING ON THE AUTHORITIES OF SIR EDWARD COKE AND SIR MATTHEW HALE"
IN TREASON CASES BECAUSE "THESE EMINENT MEN, AND ESPECIALLY THE LATTER,
AWARE THAT OUR LAW IS MAINLY BUILT ON ADJUDGED PRECEDENT, AND NOT
DARING TO REJECT THAT WHICH THEY WOULD NOT HAVE THEMSELVES ASSERTED,
WILL BE FOUND TO HAVE RATHER TIMIDLY EXERCISED THEIR JUDGMENT IN THE
CONSTRUCTION OF THIS STATUTE, YIELDING A DEFERENCE TO FORMER AUTHORITY
WHICH WE HAVE TRANSFERRED TO THEIR OWN."  FOR A SYMPATHETIC TREATMENT
OF HALE'S PART IN THE BUNYAN CASE, SEE 2 CAMPBELL, LIVES OF THE CHIEF
JUSTICES OF ENGLAND, 219-222. 

FN19  2 CAMPBELL, LIVES OF THE CHIEF JUSTICES OF ENGLAND, AT 171. 
SEE ALSO BURNETT, THE LIFE AND DEATH OF SIR MATTHEW HALE; FOSS, THE
JUDGES OF ENGLAND, AT 105-116; DICTIONARY OF NATIONAL BIOGRAPHY, VOL.
VIII, AT 902-908. 

FN20  SEE 6 HOWELL'S STATE TRIALS 687. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

I WOULD NOTE JURISDICTION IN THIS CASE FOR SEVERAL REASONS. 

FIRST.  DR. UPHAUS IS IN PRISON FOR CIVIL CONTEMPT FOR FAILURE TO
DELIVER TO A STATE INVESTIGATING AGENCY LISTS WHICH HE CLAIMS ARE
CONSTITUTIONALLY PROTECTED FROM DISCLOSURE.  ON JUNE 8, 1959, WE
AFFIRMED HIS CONVICTION IN THE STATE COURTS OF NEW HAMPSHIRE BY A
DIVIDED VOTE.  UPHAUS V. WYMAN, 360 U.S. 72.  FOLLOWING THE REMAND IN
THAT CASE, UPHAUS WAS GIVEN A FURTHER HEARING AT WHICH QUESTIONS NEVER
BEFORE PRESENTED TO US WERE RAISED.  THE LAW UNDER WHICH UPHAUS IS
COMMITTED WAS N.H. LAWS 1953, C. 307; N.H. LAWS 1955, C. 197, C. 340,
DIRECTING THE ATTORNEY GENERAL "TO DETERMINE WHETHER SUBVERSIVE PERSONS
...  ARE PRESENTLY LOCATED WITHIN THIS STATE."  THAT LAW, HOWEVER, NO
LONGER EXISTS.  FOR IN 1957 THE AUTHORITY OF THE ATTORNEY GENERAL OF
NEW HAMPSHIRE WAS LIMITED TO MAKING INVESTIGATIONS OF VIOLATIONS OF
LAW.  N.H. LAWS 1957, C. 178.  AS RESPECTS THIS CHANGE IN LEGISLATION,
THE NEW HAMPSHIRE SUPREME COURT ON JUNE 27, 1960, SAID:  (FN1)    "OUR
OPINION OF MARCH 31, 1960, (FN2) DID NOT TURN UPON ANY HOLDING THAT RSA
588:8A PROVIDED AN EXTENSION OF THE LEGISLATIVE INVESTIGATION FIRST
AUTHORIZED IN 1953.  THE PLAINTIFF STANDS COMMITTED FOR REFUSAL, WHILE
LAWS 1955, C. 197, WAS STILL IN EFFECT, TO COMPLY WITH AN ORDER ENTERED
PRIOR TO ENACTMENT OF RSA 588:8A." 

THE MAJORITY CONCLUDE THAT THIS IS A RULING ON LOCAL LAW ONLY AND
THEREFORE PRESENTS NO FEDERAL QUESTION.  THAT PLAINLY WOULD BE RIGHT IF
THIS WERE A COMMITMENT FOR CRIMINAL CONTEMPT AND IF IT MAY BE
CONSTITUTIONALLY IMPOSED.  THE EXPIRATION OF A LAW NORMALLY WOULD BE NO
DEFENSE TO VIOLATIONS COMMITTED WHILE IT WAS IN FORCE.  BUT THIS IS A
CASE OF CIVIL CONTEMPT USED FOR ITS COERCIVE AUTHORITY TO MAKE THE
DEFENDANT PRODUCE THE DOCUMENTS WHICH WERE DEMANDED.  IN SUCH A CASE
THE DEFENDANT CARRIES THE KEYS TO FREEDOM IN HIS OWN POCKET, AS POINTED
OUT IN UPHAUS V. WYMAN, SUPRA, 81.  BUT THE REQUIREMENT TO PRODUCE
ASSUMES THAT THEIR PRODUCTION IS RELEVANT TO SOME INTEREST OF THE
STATE.  AS STATED IN UPHAUS V. WYMAN, SUPRA, AT 78: 

"WHAT WAS THE INTEREST OF THE STATE?  THE ATTORNEY GENERAL WAS
COMMISSIONED TO DETERMINE IF THERE WERE ANY SUBVERSIVE PERSONS WITHIN
NEW HAMPSHIRE.  THE OBVIOUS STARTING POINT OF SUCH AN INQUIRY WAS TO
LEARN WHAT PERSONS WERE WITHIN THE STATE.  IT IS THEREFORE CLEAR THAT
THE REQUESTS RELATE DIRECTLY TO THE LEGISLATURE'S AREA OF INTEREST,
I.E., THE PRESENCE OF SUBVERSIVES IN THE STATE, AS ANNOUNCED IN ITS
RESOLUTION." 

THAT INTEREST NO LONGER EXISTS, BY REASON OF THE STATUTORY CHANGE
THAT I HAVE NOTED.  THE SUPREME COURT OF NEW HAMPSHIRE IN ITS OPINION
OF JUNE 27, 1960, QUOTED ABOVE, CONCEDES THAT IT DOES NOT RELY ON "AN
EXTENSION OF THE LEGISLATIVE INVESTIGATION FIRST AUTHORIZED IN 1953." 
102 N.H., AT 518, 162 A.2D, AT 612.  IN OTHER WORDS, THE ATTORNEY
GENERAL IS NO LONGER AUTHORIZED TO INVESTIGATE WHETHER "SUBVERSIVE
PERSONS" ARE PRESENT IN THE STATE.  THAT IS TO SAY, THE ANSWERS ARE NO
LONGER RELEVANT TO ANY EXISTING LEGISLATIVE PROJECT. 

THUS A NEW AND IMPORTANT QUESTION IS PRESENTED IN THIS SECOND APPEAL
WHICH IS NOW FILED WITH US. MAY A PERSON BE INCARCERATED FOR CIVIL
CONTEMPT FOR FAILURE TO PRODUCE DOCUMENTS TO A LEGISLATIVE COMMITTEE
WHEN THE COMMITTEE IS NO LONGER AUTHORIZED TO INVESTIGATE THE MATTER? 
IF, OF COURSE, THE 1957 ACT EXTENDED THIS AUTHORITY RESPECTING PENDING
CASES, THE CONCLUSION OF THE MAJORITY THAT THE QUESTION IS A LOCAL,
NONFEDERAL ONE, SO FAR AS THE CONTEMPT ISSUE IS CONCERNED, WOULD
OBVIOUSLY BE CORRECT.  BUT THE OPINION OF THE SUPREME COURT OF NEW
HAMPSHIRE RENDERED JUNE 27, 1960, REJECTS THAT CONSTRUCTION OF THE NEW
HAMPSHIRE STATUTES.  IT TREATS THE OFFENSE AS COMPLETED WHILE THE
EARLIER ACT WAS IN FORCE.  I CAN READ ITS OPINION OF JUNE 27, 1960, TO
MEAN ONLY THAT IT CONSIDERED THE CASE AS IF IT INVOLVED CRIMINAL RATHER
THAN CIVIL CONTEMPT.  FOR THE CRITERIA IT CONSIDERED RELEVANT HAVE NO
APPARENT PERTINENCY WHEN AN ISSUE OF CIVIL CONTEMPT IS TENDERED. 

ARE THE PRINCIPLES ANNOUNCED IN UPHAUS V. WYMAN, SUPRA, APPLICABLE TO
CRIMINAL AS WELL AS TO CIVIL CONTEMPT?  PERHAPS SO.  BUT THE CAREFUL
DELINEATION OF THE ISSUES IN THAT CASE MADE BY MY BROTHER CLARK, WHO
WROTE FOR THE MAJORITY, RESTRICTS THE CASE TO CIVIL CONTEMPT.  AS
APPELLANT STATES IN HIS BRIEF, THE CONDITIONAL NATURE OF A CIVIL
CONTEMPT ORDER "MAKES TOLERABLE THE OMISSION, FROM CIVIL CONTEMPT
PROCEEDINGS, OF MANY OF THE PROCEDURAL SAFEGUARDS WITH WHICH CRIMINAL
PROCEEDINGS ARE HEDGED ABOUT  ...  ."  ARE THE DUE PROCESS PROBLEMS NO
DIFFERENT WHEN THE PRISONER, WHO INVOKES THE FIRST AMENDMENT, CAN GO TO
PRISON FOR 10 YEARS OR FOR LIFE AND WHEN HE HAS THE KEYS TO THE PRISON
IN HIS OWN POCKET?  IF THE TWO CASES ARE NOT DIFFERENT, THEN LOCAL LAW
QUESTIONS DECIDE THE CASE.  BUT WE SHOULD NOT DECIDE WITHOUT ARGUMENT
THAT THERE IS NO DIFFERENCE IN DUE PROCESS TERMS BETWEEN THE TWO
CASES. 

THE SUPREME COURT OF NEW HAMPSHIRE IN ITS JUNE 27, 1960, OPINION
STRESSES THAT THE POINT NOW PRESSED WAS "NOT PRESENTED IN THE PENDING
PROCEEDINGS AT ANY TIME, UNTIL FIRST ADVANCED BEFORE THE SUPERIOR COURT
ON DECEMBER 14, 1959, THE DAY ON WHICH THE ORDER OF COMMITTAL WAS
ENTERED."  102 N.H., AT 518, 162 A.2D, AT 612.  THAT SEEMS TO BE TRUE. 
BUT NO WAIVER OF THE POINT APPEARS TO HAVE BEEN MADE.  IT IS TRUE THAT
AT THE HEARING COUNSEL FOR UPHAUS STATED THAT HIS CLIENT HAD A LEGAL
DUTY TO COMPLY. 

"YOUR HONOR PLEASE, IT IS NOT OUR PURPOSE TO DENY THAT WILLARD UPHAUS
IS UNDER LEGAL OBLIGATION TO ANSWER THE QUESTION WHICH HAS BEEN
PROPOUNDED TO HIM.  WE HAVE EXPLAINED TO HIM HIS LEGAL OBLIGATION, AND
HE UNDERSTANDS IT.  IT IS OUR CONTENTION THAT THIS IS A REAL MATTER OF
CONSCIENCE; THAT HE FEELS BOUND TO A HIGHER OBLIGATION EVEN THAN THE
DIRECTION OF THE COURT  ...  .  WE ARE NOT CONTENDING AT ALL THAT HE IS
NOT OBLIGATED TO ANSWER THE QUESTION." 

BUT THE TRANSCRIPT MAKES CLEAR THAT THE ATTORNEYS FOR UPHAUS MADE TWO
SEPARATE POINTS.  FIRST, THEY ARGUED THAT THE 1957 AMENDMENT TO THE
STATUTE DEPRIVED THE ATTORNEY GENERAL OF HIS POWER TO INVESTIGATE THE
PRESENCE OF "SUBVERSIVE PERSONS" IN NEW HAMPSHIRE AND THEREFORE THAT
COMMITMENT FOR CIVIL CONTEMPT WAS NO LONGER PERMISSIBLE.  A MOTION TO
DISMISS ON THAT GROUND WAS ARGUED AND DENIED, AN EXCEPTION BEING
NOTED.  AS A SECOND AND SEPARATE POINT, EVIDENCE WAS OFFERED AND
ARGUMENT MADE CONCERNING THE DURATION OF THE SENTENCE.  IT WAS DURING
THE PRESENTATION OF THIS POINT THAT THE STATEMENT, NOW CLAIMED TO BE A
WAIVER, WAS MADE.  WHETHER IMPRISONMENT FOR CIVIL CONTEMPT CAN
CONSTITUTIONALLY BE IMPOSED IN LIGHT OF THE STATUTORY CHANGES AFFECTING
THE "AREA OF INTEREST" OF THE LEGISLATURE, UPHAUS V. WYMAN, SUPRA, AT
78, AND THE ATTORNEY GENERAL'S POWERS IS A QUESTION WHICH NEVER HAS
BEEN WAIVED.  IT IS EARNESTLY PRESSED.  MOREOVER, IF THERE IS NOW NO
BASIS FOR CIVIL CONTEMPT, IS CRIMINAL CONTEMPT CONSTITUTIONALLY
AVAILABLE?  THESE ARE SUBSTANTIAL QUESTIONS NEVER RESOLVED, AS FAR AS I
KNOW, IN ANY OF OUR PRIOR DECISIONS. 

SECOND.  RECENTLY, WHEN ALABAMA ASKED THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE TO DISCLOSE ITS MEMBERSHIP LIST, WE
HELD THAT DISCLOSURE WAS NOT REQUIRED BECAUSE, IF COMPELLED, IT MIGHT
WELL ABRIDGE THE RIGHTS OF MEMBERS TO ENGAGE IN LAWFUL ASSOCIATION IN
SUPPORT OF THEIR COMMON BELIEFS.  WE SAID IN N.A.A.C.P. V. ALABAMA, 357
U.S. 449, 462: 

"IT IS HARDLY A NOVEL PERCEPTION THAT COMPELLED DISCLOSURE OF
AFFILIATION WITH GROUPS ENGAGED IN ADVOCACY MAY CONSTITUTE AS EFFECTIVE
A RESTRAINT ON FREEDOM OF ASSOCIATION AS THE FORMS OF GOVERNMENTAL
ACTION IN THE CASES ABOVE WERE THOUGHT LIKELY TO PRODUCE UPON THE
PARTICULAR CONSTITUTIONAL RIGHTS THERE INVOLVED.  THIS COURT HAS
RECOGNIZED THE VITAL RELATIONSHIP BETWEEN FREEDOM TO ASSOCIATE AND
PRIVACY IN ONE'S ASSOCIATIONS.  WHEN REFERRING TO THE VARIED FORMS OF
GOVERNMENTAL ACTION WHICH MIGHT INTERFERE WITH FREEDOM OF ASSEMBLY, IT
SAID IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, AT 402:
'A REQUIREMENT THAT ADHERENTS OF PARTICULAR RELIGIOUS FAITHS OR
POLITICAL PARTIES WEAR IDENTIFYING ARM-BANDS, FOR EXAMPLE, IS OBVIOUSLY
OF THIS NATURE.'  COMPELLED DISCLOSURE OF MEMBERSHIP IN AN ORGANIZATION
ENGAGED IN ADVOCACY OF PARTICULAR BELIEFS IS OF THE SAME ORDER. 
INVIOLABILITY OF PRIVACY IN GROUP ASSOCIATION MAY IN MANY CIRCUMSTANCES
BE INDISPENSABLE TO PRESERVATION OF FREEDOM OF ASSOCIATION,
PARTICULARLY WHERE A GROUP ESPOUSES DISSIDENT BELIEFS.  CF. UNITED
STATES V. RUMELY, 345 U.S. 41, AT 56-58 (CONCURRING OPINION)." 

WHAT WE THERE SAID WAS NOT DESIGNED, AS I UNDERSTOOD IT, AS A RULE
FOR NEGROES ONLY.  THE CONSTITUTION FAVORS NO RACIAL GROUP, NO
POLITICAL OR SOCIAL GROUP.  THE GROUP WITH WHICH DR. UPHAUS WAS
ASSOCIATED AND WHOSE MEMBERSHIP LIST HE REFUSED TO DISCLOSE IS ENTITLED
UNDER THE FIRST AMENDMENT TO THE SAME PROTECTION AS THE N.A.A.C.P.  NO
GROUNDWORK WHATEVER WAS LAID IN ANY OF THE RECORDS BEFORE US THAT WORLD
FELLOWSHIP, INC., WAS AT ANY TIME ENGAGED IN ANY CONDUCT THAT COULD BE
CALLED UNLAWFUL. 

WE HAD N.A.A.C.P. V. ALABAMA, SUPRA, BEFORE US WHEN THE UPHAUS CASE
WAS DECIDED.  IT INVOLVED RIGHTS OF THE ORGANIZATION ITSELF TO DEFY
THOSE WHO WANTED ITS MEMBERSHIP LISTS.  NOT UNTIL LATER, HOWEVER, DID
WE HAVE THE CASE WHERE AN INDIVIDUAL WHO POSSESSED MEMBERSHIP LISTS
CHALLENGED THE RIGHT OF GOVERNMENT TO DEMAND THEIR PRODUCTION.  IN
BATES V. LITTLE ROCK, 361 U.S. 516, DECIDED AFTER WE HANDED DOWN OUR
DECISION IN THE UPHAUS CASE, WE REVERSED A STATE CONVICTION OF
CUSTODIANS OF THE RECORDS OF LOCAL BRANCHES OF N.A.A.C.P.  FOR REFUSING
TO DISCLOSE ITS MEMBERSHIP LISTS TO CITY OFFICIALS.  WE SAID: 

"ON THIS RECORD IT SUFFICIENTLY APPEARS THAT COMPULSORY DISCLOSURE OF
THE MEMBERSHIP LISTS OF THE LOCAL BRANCHES OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE WOULD WORK A SIGNIFICANT
INTERFERENCE WITH THE FREEDOM OF ASSOCIATION OF THEIR MEMBERS.  THERE
WAS SUBSTANTIAL UNCONTROVERTED EVIDENCE THAT PUBLIC IDENTIFICATION OF
PERSONS IN THE COMMUNITY AS MEMBERS OF THE ORGANIZATIONS HAD BEEN
FOLLOWED BY HARASSMENT AND THREATS OF BODILY HARM.  THERE WAS ALSO
EVIDENCE THAT FEAR OF COMMUNITY HOSTILITY AND ECONOMIC REPRISALS THAT
WOULD FOLLOW PUBLIC DISCLOSURE OF THE MEMBERSHIP LISTS HAD DISCOURAGED
NEW MEMBERS FROM JOINING THE ORGANIZATIONS AND INDUCED FORMER MEMBERS
TO WITHDRAW.  THIS REPRESSIVE EFFECT, WHILE IN PART THE RESULT OF
PRIVATE ATTITUDES AND PRESSURES, WAS BROUGHT TO BEAR ONLY AFTER THE
EXERCISE OF GOVERNMENTAL POWER HAD THREATENED TO FORCE DISCLOSURE OF
THE MEMBERS' NAMES.  N.A.A.C.P. V. ALABAMA, 357 U.S., AT 463.  THUS,
THE THREAT OF SUBSTANTIAL GOVERNMENT ENCROACHMENT UPON IMPORTANT AND
TRADITIONAL ASPECTS OF INDIVIDUAL FREEDOM IS NEITHER SPECULATIVE NOR
REMOTE."  ID., 523-524. 

CAN THERE BE ANY DOUBT THAT HARASSMENT OF MEMBERS OF WORLD
FELLOWSHIP, INC., IN THE CLIMATE PREVAILING AMONG NEW HAMPSHIRE'S LAW
ENFORCEMENT OFFICIALS WILL LIKEWISE BE SEVERE?  (FN3)  CAN THERE BE ANY
DOUBT THAT ITS MEMBERS WILL BE AS CLOSELY PURSUED AS MIGHT BE MEMBERS
OF N.A.A.C.P. IN SOME COMMUNITIES?  IF EITHER N.A.A.C.P. OR WORLD
FELLOWSHIP WERE ENGAGED IN CRIMINAL ACTIVITY, WE WOULD HAVE A DIFFERENT
PROBLEM.  BUT NEITHER IS SHOWN TO BE.  WORLD FELLOWSHIP, SO FAR AS THIS
RECORD SHOWS, IS AS LAW-ABIDING AS N.A.A.C.P.  THE MEMBERS OF ONE ARE
ENTITLED TO THE SAME FREEDOM OF SPEECH, OF PRESS, OF ASSEMBLY, AND OF
ASSOCIATION AS THE MEMBERS OF THE OTHER.  THESE RIGHTS EXTEND EVEN TO
COMMUNISTS, AS A UNANIMOUS COURT HELD IN DE JONGE V. OREGON, 299 U.S.
353.  (FN4) 

WHAT IS AN UNCONSTITUTIONAL INVASION OF FREEDOM OF ASSOCIATION IN
ALABAMA OR IN ARKANSAS SHOULD BE UNCONSTITUTIONAL IN NEW HAMPSHIRE. 
ALL GROUPS - WHITE OR COLORED - ENGAGED IN LAWFUL CONDUCT ARE ENTITLED
TO THE SAME PROTECTION AGAINST HARASSMENT AS THE N.A.A.C.P.  ENJOYS. 
SINCE WE ALLOWED IN THE BATES CASE THE PROTECTION WE DENY HERE AND
SINCE BATES WAS DECIDED AFTER WE DECIDED UPHAUS' CASE, WE SHOULD
RECONSIDER OUR EARLIER DECISION IN THIS CASE.  THE BATES CASE AND THE
UPHAUS CASE PUT INTO FOCUS FOR THE FIRST TIME THE RESPONSIBILITY OF AN
INDIVIDUAL TO MAKE DISCLOSURE OF MEMBERSHIP LISTS.  WE CANNOT
ADMINISTER JUSTICE WITH AN EVEN HAND IF WE ALLOW BATES TO GO FREE AND
UPHAUS TO LANGUISH IN PRISON. 

FOR THESE REASONS, AS WELL AS THOSE ADVANCED BY MR. JUSTICE BLACK,
WHICH I WHOLLY SHARE, I WOULD NOTE PROBABLE JURISDICTION OF THIS
APPEAL.  AND DR. UPHAUS SHOULD, OF COURSE, BE RELEASED ON BAIL PENDING
RESOLUTION OF THE QUESTIONS BY THE COURT. 

FN1  UPHAUS V. WYMAN, 102 N.H. 517, 518, 162 A.2D 611, 612. 

FN2  WYMAN V. UPHAUS, 102 N.H. 461, 159 A.2D 160. 

FN3  THE ATTORNEY GENERAL OF NEW HAMPSHIRE IN THE MOTION TO DISMISS
IN THIS CASE STATES, "THOSE WHO VOLUNTARILY AND KNOWINGLY APPEAR WITH,
CONSULT WITH, CONFER WITH, ATTEND FUNCTIONS WITH AND OTHERWISE ACT IN
CONCERT WITH COMMUNISTS OR FORMER COMMUNISTS IN AMERICA CANNOT POSSIBLY
HAVE ANY REASONABLE RIGHT OF PRIVACY IN REGARD TO SUCH ACTIVITIES  ...
." 

FN4  CHIEF JUSTICE HUGHES WROTE FOR THE COURT IN THAT CASE: 

"THE GREATER THE IMPORTANCE OF SAFEGUARDING THE COMMUNITY FROM
INCITEMENTS TO THE OVERTHROW OF OUR INSTITUTIONS BY FORCE AND VIOLENCE,
THE MORE IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE THE
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN
ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE
END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND
THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN
LIES THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF
CONSTITUTIONAL GOVERNMENT. 

"IT FOLLOWS FROM THESE CONSIDERATIONS THAT, CONSISTENTLY WITH THE
FEDERAL CONSTITUTION, PEACEABLE ASSEMBLY FOR LAWFUL DISCUSSION CANNOT
BE MADE A CRIME.  THE HOLDING OF MEETINGS FOR PEACEABLE POLITICAL
ACTION CANNOT BE PROSCRIBED.  THOSE WHO ASSIST IN THE CONDUCT OF SUCH
MEETINGS CANNOT BE BRANDED AS CRIMINALS ON THAT SCORE.  THE QUESTION,
IF THE RIGHTS OF FREE SPEECH AND PEACEABLE ASSEMBLY ARE TO BE
PRESERVED, IS NOT AS TO THE AUSPICES UNDER WHICH THE MEETING IS HELD
BUT AS TO ITS PURPOSE; NOT AS TO THE RELATIONS OF THE SPEAKERS, BUT
WHETHER THEIR UTTERANCES TRANSCEND THE BOUNDS OF THE FREEDOM OF SPEECH
WHICH THE CONSTITUTION PROTECTS."  299 U.S., AT 365. 
..END :
























CLIMATE CONTROL, INC. V. HILL 364 U.S. 409 


NO. 251.  DECIDED NOVEMBER 14, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  86 ARIZ. 180, 342 P.2D
854; 87 ARIZ. 201, 349 P.2D 771. 


CLIMATE CONTROL, INC. V. HILL ET AL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BOBO V. MAYOR & COUNCILMEN OF SAVANNAH BEACH, GEORGIA 364 U.S. 409 


NO. 409.  DECIDED NOVEMBER 14, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  216 GA. 12, 114 S.E.2D
374. 


BOBO V. MAYOR & COUNCILMEN OF SAVANNAH BEACH, GEORGIA. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















UNITED STATES V. JOHN HANCOCK MUTUAL LIFE INSURANCE CO. 364 U.S. 301 


NO. 18.  ARGUED OCTOBER 13, 1960 - DECIDED NOVEMBER 7, 1960 - 185 KAN.
274, 341 P.2D 1002, REVERSED. 


THE UNITED STATES, AS THE SECOND MORTGAGEE OF REAL ESTATE JUDICIALLY
FORECLOSED AND SOLD TO SATISFY THE FIRST MORTGAGEE'S LIEN IN A
PROCEEDING IN A STATE COURT TO WHICH THE UNITED STATES WAS MADE A PARTY
UNDER 28 U.S.C. SEC. 2410, CAN REDEEM THE PROPERTY, PURSUANT TO SEC.
2410(C), WITHIN ONE YEAR FROM THE DATE OF SALE, NOTWITHSTANDING A
CONFLICTING STATE STATUTE GIVING THE MORTGAGOR THE EXCLUSIVE RIGHT TO
REDEEM WITHIN THAT PERIOD.  PP. 301-309. 

UNITED STATES V. JOHN HANCOCK MUTUAL LIFE INSURANCE CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER THE UNITED STATES, AS THE SECOND
MORTAGEE OF REAL ESTATE JUDICIALLY FORECLOSED IN A PROCEEDING TO WHICH
THE UNITED STATES WAS MADE A PARTY UNDER 28 U.S.C. SEC. 2410, (FN1) CAN
REDEEM WITHIN ONE YEAR FROM THE DATE OF SALE PURSUANT TO 28 U.S.C.
SEC. 2410(C), DESPITE A CONFLICTING STATE STATUTE GIVING THE MORTGAGOR
THE EXCLUSIVE RIGHT TO REDEEM WITHIN THAT PERIOD. 

THE FACTS ARE NOT IN DISPUTE AND, INSOFAR AS HERE PERTINENT, MAY BE
SUMMARIZED AS FOLLOWS.  APPELLEE JOHN HANCOCK MUTUAL LIFE INSURANCE CO.
HELD A NOTE FOR $25,000, SECURED BY A MORTGAGE ON CERTAIN KANSAS REAL
ESTATE.  THE NOTE WAS IN DEFAULT AND THE INSURANCE COMPANY INSTITUTED
PROCEEDINGS IN THE DISTRICT COURT OF EDWARDS COUNTY, KANSAS, SEEKING A
DECLARATION THAT ITS MORTGAGE CONSTITUTED A FIRST LIEN ON THE PROPERTY
AND ASKING FORECLOSURE TO SATISFY THIS LIEN.  AN AGENCY OF THE UNITED
STATES, THE FARMERS' HOME ADMINISTRATION, HELD FOUR NOTES EXECUTED BY
THE MORTGAGORS AGAINST WHOM THE INSURANCE COMPANY WAS PROCEEDING AND
ONE OF THESE NOTES, IN THE FACE AMOUNT OF $10,565, WAS SECURED BY A
MORTGAGE ON THE PROPERTY SECURING APPELLEE'S NOTE.  IT IS UNDISPUTED
THAT THE UNITED STATES' SECURED NOTE WAS JUNIOR IN PRIORITY TO THAT
HELD BY APPELLEE.  HOWEVER, UNDER KANSAS LAW, A SENIOR LIENOR MUST JOIN
JUNIOR LIENORS IN THE FORECLOSURE PROCEEDING IN ORDER TO CUT OFF THE
JUNIOR LIENS.  MOTOR EQUIPMENT CO. V. WINTERS, 146 KAN. 127, 69 P.2D
23.  AND THE ONLY WAY IN WHICH THE UNITED STATES CAN BE JOINED IN ITS
CAPACITY AS JUNIOR LIENOR IS PURSUANT TO THE TERMS OF 28 U.S.C. SEC.
2410, SINCE THE UNITED STATES HAS NOT OTHERWISE WAIVED SOVEREIGN
IMMUNITY IN THIS TYPE OF SITUATION.  CONSEQUENTLY, APPELLEE INSURANCE
COMPANY JOINED THE UNITED STATES AND THE UNITED STATES CROSS PETITIONED
FOR AN ADJUDICATION THAT IT HELD A SECOND LIEN ON THE PROPERTY,
INFERIOR ONLY TO APPELLEE'S LIEN, IN THE AMOUNT OWED ON ALL FOUR
NOTES.  THE KANSAS DISTRICT COURT HELD THAT APPELLEE ENJOYED A FIRST
LIEN ENTITLING IT TO A JUDGMENT OF $26,944.78 AND THAT THE UNITED
STATES HELD A SECOND LIEN BY VIRTUE OF ITS SECURED NOTE, ENTITLING IT
TO $10,402.61.  (FN2)  THE COURT ORDERED BOTH LIENS FORECLOSED.  AT THE
FORECLOSURE SALE, THE INSURANCE COMPANY BOUGHT IN THE PROPERTY IN THE
AMOUNT OF ITS OWN JUDGMENT.  THE UNITED STATES DID NOT BID AND THE SALE
WAS CONFIRMED BY THE DISTRICT COURT ON FEBRUARY 5, 1958.  FOUR MONTHS
LATER - ON JUNE 5, 1958 - THE UNITED STATES INSTITUTED PROCEEDINGS TO
REDEEM THE PROPERTY PURSUANT TO THE TERMS OF 28 U.S.C. SEC. 2410(C). 
THIS SECTION SPECIFIES THAT, WHEN THE UNITED STATES IS JOINED IN A
FORECLOSURE PROCEEDING UNDER SEC. 2410 - IN PARTICULAR SEC. 2410(A) -
AND A SALE IS HELD TO SATISFY A LIEN PRIOR TO THAT OF THE UNITED
STATES, "THE UNITED STATES SHALL HAVE ONE YEAR FROM THE DATE OF SALE
WITHIN WHICH TO REDEEM."  ALTHOUGH THE UNITED STATES SATISFIED THE
PROCEDURAL REQUIREMENTS OF KANSAS LAW, KAN. GEN. STAT., 1949, SEC. 60
3451, ITS TENDER WAS REFUSED AND, CONSEQUENTLY, IT MOVED THE COURT TO
COMPEL THE CLERK TO ISSUE IT A REDEMPTION CERTIFICATE.  THE DISTRICT
COURT DENIED RELIEF AND THE KANSAS SUPREME COURT AFFIRMED, (FN3)
HOLDING THAT THE UNITED STATES' ACTION WAS BARRED BY THE PROVISIONS OF
STATE LAW GRANTING THE MORTGAGOR THE EXCLUSIVE RIGHT TO REDEEM HIS
PROPERTY DURING A PERIOD OF TWELVE MONTHS FOLLOWING THE DATE OF A
FORECLOSURE SALE. 

THE PERTINENT KANSAS LAW PROVIDES THAT THE MORTGAGOR SHALL HAVE THE
EXCLUSIVE RIGHT OF REDEMPTION FOR TWELVE MONTHS FOLLOWING THE DATE OF
SALE; THEREAFTER, IF THE MORTGAGOR HAS NOT REDEEMED, THE LIEN CREDITORS
ENJOY A THREE-MONTH PERIOD DURING WHICH THEY, OR THE MORTGAGOR, MAY
REDEEM.  (FN4) KAN. GEN. STAT., 1949, SEC. 60-3440.  IF THE MORTGAGOR
REDEEMS AT ANY TIME, ALL REDEMPTION RIGHTS ARE CUT OFF.  SIGLER V.
PHARES, 105 KAN. 116, 181 P. 628.  IN THIS CASE, THE MORTGAGORS
REDEEMED WITHIN TWELVE MONTHS OF THE DATE OF SALE BUT SUBSEQUENT TO THE
ATTEMPT OF THE UNITED STATES TO REDEEM. 

THE NARROW QUESTION FOR OUR DECISION IS WHETHER THAT PART OF SEC.
2410(C) WHICH GRANTS THE UNITED STATES A RIGHT TO REDEEM APPLIES TO THE
PRESENT SITUATION.  IF IT DOES, THEN THE INCONSISTENT PROVISIONS OF
STATE LAW MUST FALL UNDER THE SUPREMACY CLAUSE OF THE UNITED STATES
CONSTITUTION.  (FN5)  U.S. CONST., ART. VI. 

ON ANALYSIS, THE QUESTION IS NOT ONLY NARROW BUT ALSO SUSCEPTIBLE TO
RAPID SOLUTION, SINCE THE PLAIN LANGUAGE OF SEC. 2410(C) REVEALS NO
IMPEDIMENT TO ITS APPLICABILITY ONCE RESORT IS HAD TO SEC. 2410(A). 
MOREOVER, AN EXAMINATION OF THE LEGISLATIVE HISTORY OF SEC. 2410 SHOWS
THAT CONGRESS CONSIDERED THE REDEMPTION PROVISION OF SEC. 2410(C) AN
IMPORTANT AND INTEGRAL FEATURE OF SEC. 2410.  THE PERTINENT EXCERPTS
REVEAL THAT CONGRESS FEARED A SITUATION WHERE THE UNITED STATES, AS
JUNIOR LIENOR, WOULD FIND ITS LIEN DISSOLVED PURSUANT TO SEC. 2410
WITHOUT HAVING HAD A CHANCE TO PROTECT ITS RIGHT TO ANY AMOUNT THE
FORECLOSED PROPERTY MIGHT BE WORTH IN EXCESS OF THE SENIOR LIEN.  (FN6)
AS CONGRESS RECOGNIZED, ONE METHOD OF PROTECTION FOR JUNIOR LIENORS IS
TO BID COMPETITIVELY AT THE FORECLOSURE SALE, THEREBY PREVENTING
PROPERTY WORTH MORE THAN THE AMOUNT DUE ON THE SENIOR LIEN FROM BEING
SOLD AT A DISCOUNT.  HOWEVER, IT WAS NOTED THAT, BARRING SPECIAL
CIRCUMSTANCES, THE UNITED STATES COULD NOT PURSUE THIS PROCEDURE UNLESS
IT FIRST SECURED AN APPROPRIATION FROM CONGRESS AND, THUS, THE ONE-YEAR
PERIOD OF REDEMPTION WAS INSERTED TO AFFORD THE UNITED STATES
SUFFICIENT TIME TO SECURE AN APPROPRIATION AND PROTECT ITS INTERESTS. 
THE PROTECTIVE NATURE OF THE REDEMPTION PROVISO IN SEC. 2410(C) WAS
RECOGNIZED IN UNITED STATES V. BROSNAN, 363 U.S. 237.  246, WHERE THIS
COURT STATED THAT "THE GOVERNMENT IS GUARANTEED A ONE-YEAR RIGHT TO
REDEEM IF THE PLAINTIFF PROCEEDS UNDER SEC. 2410  ...  ."  THIS
PROPOSITION IS IN LINE WITH THE WELL-SETTLED RULE THAT CONGRESS MAY
IMPOSE CONDITIONS UPON A WAIVER OF THE GOVERNMENT'S IMMUNITY FROM
SUIT.  SEE E.G., SORIANO V. UNITED STATES, 352 U.S. 270, 276, WHERE WE
ADDED THAT THESE PROTECTIVE CONDITIONS "MUST BE STRICTLY OBSERVED AND
EXCEPTIONS THERETO ARE NOT TO BE IMPLIED." 

APPELLEES CONCEDE, AS THEY MUST, THAT SEC. 2410 WAS MANDATORILY
APPLICABLE TO THE PRESENT SITUATION SINCE KANSAS LAW REQUIRED JOINDER
OF THE UNITED STATES AND THE UNITED STATES CAN ONLY BE JOINED PURSUANT
TO SEC. 2410.  HOWEVER, THEY WOULD HAVE US FIND A SUPERSEDING
CONGRESSIONAL INTENT TO AFFORD THE UNITED STATES A RIGHT OF REDEMPTION
ONLY WHEN NO SUCH RIGHT IS GRANTED UNDER STATE LAW; WHEN SOME
PRIVILEGES OF REDEMPTION ARE GIVEN BY THE STATE TO JUNIOR LIENORS,
ALTHOUGH OF LESSER MAGNITUDE THAN THAT PROVIDED IN SEC. 2410(C), THEN
THE FEDERAL RIGHT IS NO LONGER PERTINENT.  THE SHORT ANSWER TO THIS
CONTENTION IS THAT NO INDICATION OF SUCH A LIMITATION APPEARS IN THE
BODY OF THE STATUTE - WHICH SPECIFIES THAT THE UNITED STATES "SHALL"
HAVE ONE YEAR TO REDEEM - OR IN ITS LEGISLATIVE HISTORY.  SEE SORIANO
V. UNITED STATES, SUPRA. 

APPELLEES ALSO PRESS UPON US THE FACT THAT THE FEDERAL AGENCY HERE
CONCERNED, THE FARMERS' HOME ADMINISTRATION, COULD HAVE PROTECTED ITS
JUNIOR LIEN WITHOUT INSISTING ON A RIGHT TO REDEEM UNDER SEC. 2410,
SINCE 7 U.S.C. (1952 ED.)  SEC.  1025 AUTHORIZES THE SECRETARY OF
AGRICULTURE, WHO SUPERVISES THE FARMERS' HOME ADMINISTRATION, TO BID AT
FORECLOSURE SALES.  (FN7)  BUT THE SIGNIFICANCE OF THIS SECTION AND ITS
EFFECT ON SEC. 2410 IS NOT CLEAR.  CONCEDEDLY, IF THERE WERE SOME
INDICATION IN SEC. 1025 THAT THE POWER OF THE SECRETARY OF AGRICULTURE
IS LIMITED TO BIDDING AT THE FORECLOSURE SALE, THEN WE WOULD BE FACED
WITH A PROBLEM OF RESOLVING THE TWO STATUTES.  CF. UNITED STATES V.
STEWART, 311 U.S. 60.  HOWEVER, THERE IS NO CONFLICT, EITHER EXPRESS OR
IMPLIED, BETWEEN SEC. 1025 AND SEC. 2410.  IN EFFECT, APPELLEES WOULD
HAVE US READ SEC. 2410 AS AUTHORIZING REDEMPTION "EXCEPT WHERE ANOTHER
FEDERAL STATUTE AUTHORIZES THE PARTICULAR AGENCY CONCERNED TO BID AT
FORECLOSURE SALES."  THE ONLY SUPPORT FOR SUCH AN INTERPRETATION IS THE
FACT THAT SOME FEDERAL AGENCIES ARE AUTHORIZED TO BID AT FORECLOSURE
SALES.  WE THINK THAT THE LOGICAL CONNECTION IS INSUFFICIENT TO SUPPORT
SUCH A VIOLENT GRAFT ON THE LANGUAGE OF THE STATUTE. 

APPELLEES ADVANCE SEVERAL OTHER CONTENTIONS WHICH REQUIRE ONLY BRIEF
DISCUSSION.  THEY ARGUE, CITING GUARANTY TRUST CO. V. UNITED STATES,
304 U.S. 126, THAT THE UNITED STATES, BY SEEKING AFFIRMATIVE RELIEF IN
A STATE COURT, SUBJECTS ITSELF TO ALL THE INCIDENTS OF STATE LAW WHICH
GOVERN OTHER SUITORS.  SEE HART & WECHSLER, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 1112.  HOWEVER, WE NEED GO NO FARTHER THAN THE GUARANTY
TRUST CASE TO UNCOVER ONE OF THE SEVERAL SPECIAL RULES WHICH FAVOR THE
UNITED STATES IN PREFERENCE TO OTHER PLAINTIFFS - THE RULE THAT THE
UNITED STATES IS NOT SUBJECT TO LOCAL STATUTES OF LIMITATIONS.  SEE
UNITED STATES V. SUMMERLIN, 310 U.S. 414.  OTHER SUCH RULES, APPLICABLE
IN BOTH FEDERAL AND STATE COURTS, CAN BE FOUND IN 28 U.S.C. SECS. 2404,
2405, 2407, 2408, 2413.  FURTHERMORE, THE PRESENT PROCEEDINGS WERE NOT
INITIATED BY THE UNITED STATES BUT BY APPELLEE INSURANCE COMPANY WHEN
IT JOINED THE UNITED STATES PURSUANT TO SEC. 2410. 

APPELLEES ALSO POINT TO THE FIRST SENTENCE OF SEC. 2410(C) - "A
JUDICIAL SALE IN SUCH ACTION OR SUIT SHALL HAVE THE SAME EFFECT
RESPECTING THE DISCHARGE OF THE PROPERTY FROM LIENS  ...  HELD BY THE
UNITED STATES AS MAY BE PROVIDED  ...  BY THE LOCAL LAW OF THE PLACE
WHERE THE PROPERTY IS SITUATED."  THE CONTENTION IS THAT THIS SENTENCE
GOVERNS ALL THE SUCCEEDING LANGUAGE IN SEC. 2410(C).  HOWEVER, THIS
CONSTRUCTION WOULD RENDER THE SUCCEEDING LANGUAGE NUGATORY.  THE MORE
RATIONAL INTERPRETATION IS THAT THE PROPOSITIONS FOLLOWING THE FIRST
SENTENCE IN SEC. 2410(C) WERE DESIGNED AS QUALIFICATIONS ON THE FIRST
SENTENCE.  THIS THESIS GAINS FORCE FROM THE FACT THAT THE SENTENCE
SETTING OUT THE UNITED STATES' REDEMPTION PRIVILEGE IN SEC. 2410(C)
PREVIOUSLY WAS PRECEDED BY THE WORDS "AND PROVIDED FURTHER."  46 STAT.
1529.  THIS PHRASE WAS ELIMINATED IN THE 1948 REVISION OF THE FEDERAL
JUDICIAL CODE BUT THE REVISER'S NOTE INDICATES THAT NO SUBSTANTIVE
CHANGES WERE INTENDED.  28 U.S.C.A. SEC. 2410. 

THEREFORE, THE JUDGMENT OF THE SUPREME COURT OF KANSAS MUST BE
REVERSED AND THE CASE REMANDED WITH INSTRUCTIONS TO ORDER THE ISSUANCE
OF A CERTIFICATE OF REDEMPTION TO THE UNITED STATES IN ACCORDANCE WITH
ITS TENDER MADE IN THE DISTRICT COURT.  HOWEVER, IN CASE THE MORTGAGORS
WISH TO REDEEM IN TURN FROM THE UNITED STATES - A PROCEDURE IN WHICH
THE UNITED STATES HAS ACQUIESCED - WE INTIMATE NO OPINION AS TO THE
AMOUNT DUE THE UNITED STATES.  THE QUESTION WHETHER THE UNITED STATES
IS ENTITLED TO PAYMENT OF ITS CLAIMS IN FULL UPON REDEMPTION BY THE
MORTGAGORS OR ONLY TO SUCH DEBTS AS HAVE BEEN DECLARED LIENS BY THE
STATE COURTS IS ONE TO BE DECIDED ACCORDING TO KANSAS LAW.  CF. FIRST
NATIONAL BANK & TRUST CO. V. MACGARVIE, 22 N.J. 539, 547, 126 A.2D 880,
885.  REVERSED AND REMANDED. 

FN1  "ACTIONS AFFECTING PROPERTY ON WHICH UNITED STATES HAS LIEN. 

"(A)  UNDER THE CONDITIONS PRESCRIBED IN THIS SECTION AND SECTION
1444 OF THIS TITLE FOR THE PROTECTION OF THE UNITED STATES, THE UNITED
STATES MAY BE NAMED A PARTY IN ANY CIVIL ACTION OR SUIT IN ANY DISTRICT
COURT, OR IN ANY STATE COURT HAVING JURISDICTION OF THE SUBJECT MATTER,
TO QUIET TITLE TO OR FOR THE FORECLOSURE OF A MORTGAGE OR OTHER LIEN
UPON REAL OR PERSONAL PROPERTY ON WHICH THE UNITED STATES HAS OR CLAIMS
A MORTGAGE OR OTHER LIEN. 

"(B)  THE COMPLAINT SHALL SET FORTH WITH PARTICULARITY THE NATURE OF
THE INTEREST OR LIEN OF THE UNITED STATES.  IN ACTIONS IN THE STATE
COURTS SERVICE UPON THE UNITED STATES SHALL BE MADE BY SERVING THE
PROCESS OF THE COURT WITH A COPY OF THE COMPLAINT UPON THE UNITED
STATES ATTORNEY OR CLERICAL EMPLOYEE DESIGNATED BY THE UNITED STATES
ATTORNEY IN WRITING FILED WITH THE CLERK OF THE COURT IN WHICH THE
ACTION IS BROUGHT AND BY SENDING COPIES OF THE PROCESS AND COMPLAINT,
BY REGISTERED MAIL, TO THE ATTORNEY GENERAL OF THE UNITED STATES AT
WASHINGTON, DISTRICT OF COLUMBIA.  IN SUCH ACTIONS THE UNITED STATES
MAY APPEAR AND ANSWER, PLEAD OR DEMUR WITHIN SIXTY DAYS AFTER SUCH
SERVICE OR SUCH FURTHER TIME AS THE COURT MAY ALLOW. 

"(C)  A JUDICIAL SALE IN SUCH ACTION OR SUIT SHALL HAVE THE SAME
EFFECT RESPECTING THE DISCHARGE OF THE PROPERTY FROM LIENS AND
ENCUMBRANCES HELD BY THE UNITED STATES AS MAY BE PROVIDED WITH RESPECT
TO SUCH MATTERS BY THE LOCAL LAW OF THE PLACE WHERE THE PROPERTY IS
SITUATED.  A SALE TO SATISFY A LIEN INFERIOR TO ONE OF THE UNITED
STATES, SHALL BE MADE SUBJECT TO AND WITHOUT DISTURBING THE LIEN OF THE
UNITED STATES, UNLESS THE UNITED STATES CONSENTS THAT THE PROPERTY MAY
BE SOLD FREE OF ITS LIEN AND THE PROCEEDS DIVIDED AS THE PARTIES MAY BE
ENTITLED.  WHERE A SALE OF REAL ESTATE IS MADE TO SATISFY A LIEN PRIOR
TO THAT OF THE UNITED STATES, THE UNITED STATES SHALL HAVE ONE YEAR
FROM THE DATE OF SALE WITHIN WHICH TO REDEEM.  IN ANY CASE WHERE THE
DEBT OWING THE UNITED STATES IS DUE, THE UNITED STATES MAY ASK, BY WAY
OF AFFIRMATIVE RELIEF, FOR THE FORECLOSURE OF ITS OWN LIEN AND WHERE
PROPERTY IS SOLD TO SATISFY A FIRST LIEN HELD BY THE UNITED STATES, THE
UNITED STATES MAY BID AT THE SALE SUCH SUM, NOT EXCEEDING THE AMOUNT OF
ITS CLAIM WITH EXPENSES OF SALE, AS MAY BE DIRECTED BY THE HEAD OF THE
DEPARTMENT OR AGENCY OF THE UNITED STATES WHICH HAS CHARGE OF THE
ADMINISTRATION OF THE LAWS IN RESPECT OF WHICH THE CLAIM OF THE UNITED
STATES ARISES."    FN2  JUDGMENT FOR $2,642.39 WAS ENTERED IN FAVOR OF
THE UNITED STATES ON THE THREE UNSECURED NOTES.  WHILE THE UNITED
STATES SOUGHT TO INCLUDE THESE NOTES IN ITS SECOND LIEN ON THE
PROPERTY, THE COURT DECREED THAT THIS LIEN EXTENDED ONLY TO THE AMOUNT
OF THE SECURED NOTE. 

FN3  JOHN HANCOCK MUTUAL LIFE INS. CO. V. HETZEL, 185 KAN. 274, 341
P.2D 1002. 

FN4  FROM THE FIFTEENTH TO AND INCLUDING THE EIGHTEENTH MONTH, THE
MORTGAGOR RESUMES ENJOYMENT OF THE EXCLUSIVE RIGHT TO REDEEM.  KAN.
GEN. STAT., 1949, SEC. 60-3439.  UPON THE EXPIRATION OF EIGHTEEN MONTHS
WITHOUT REDEMPTION, THE PURCHASER'S CERTIFICATE OF TITLE BECOMES
ABSOLUTE.  KAN. GEN. STAT., 1949, SEC. 60-3438. 

FN5  APPELLEES ARGUE BRIEFLY THAT CONGRESS DOES NOT HAVE THE POWER TO
ESTABLISH RULES GOVERNING STATE-CREATED PROPERTY RIGHTS, CITING UNITED
STATES V. BESS, 357 U.S. 51.  THIS CONTENTION WAS RAISED AND REJECTED
IN UNITED STATES V. BROSNAN, 363 U.S. 237, 240-241. 

FN6  INITIAL CONCERN WAS EXPRESSED BY REPRESENTATIVE BLOOM IN A
COLLOQUY REPORTED AT 72 CONG. REC. 3120-3121.  DESPITE THE APPREHENSION
EXPRESSED IN THIS EXCHANGE, THE BILL THAT EVENTUALLY BECAME SEC. 2410
PASSED THE HOUSE WITH NO PROVISION TO PROTECT THE UNITED STATES' RIGHTS
AS JUNIOR LEINOR.  THE SENATE, HOWEVER, ADDED A NEW SECTION AUTHORIZING
THE UNITED STATES TO BID AT THE FORECLOSURE SALE AND A DELAY OF THE
SALE UNTIL THE COMPLETION OF THE NEXT SUCCEEDING SESSION OF CONGRESS SO
AS TO ALLOW THE GOVERNMENT TIME TO OBTAIN A CONGRESSIONAL APPROPRIATION
WITH WHICH TO MAKE ITS BID.  S. REP. NO. 351, 71ST CONG., 2D SESS. 1
2. 

THIS ADDITION WAS STRICKEN BY THE CONFERENCE COMMITTEE AND THE
REDEMPTION PROVISION NOW IN SEC. 2410(C) WAS SUBSTITUTED.  IN REJECTING
THE SENATE PROPOSAL FOR PROTECTING THE RIGHTS OF THE UNITED STATES AS A
JUNIOR LIEN HOLDER, THE CONFERENCE COMMITTEE CONCLUDED THAT A FEDERAL
REDEMPTION PROVISION WAS A MORE EFFECTIVE METHOD FOR PROTECTING THOSE
RIGHTS.  IT STATED: 

"THE SENATE AMENDMENT CONTAINS A CLAUSE ALLOWING THE COURT TO STAY
PROCEEDINGS ON SALE UNTIL THE EXPIRATION OF THE NEXT SESSION OF
CONGRESS.  THIS WAS NO DOUBT INTENDED TO ALLOW CONGRESS TO APPROPRIATE
MONEY TO ENABLE THE UNITED STATES, IF A JUNIOR LIEN HOLDER, TO BID
ENOUGH AT THE SALE TO TAKE CARE OF PRIOR LIENS AND THUS PROTECT ITS
OWN.  IN PLACE OF THAT THE SUBSTITUTE BILL PROVIDES THAT IF A JUNIOR
LIEN HOLDER, THE UNITED STATES SHALL HAVE A YEAR IN WHICH TO REDEEM. 
THAT DOES AWAY WITH ANY NECESSITY FOR A DELAY OF SALE."  H.R. CONF.
REP. NO. 2722, 71ST CONG., 3D SESS. 4. 

FN7  "THE SECRETARY IS AUTHORIZED AND EMPOWERED TO BID FOR AND
PURCHASE ANY FORECLOSURE OR OTHER SALE, OR OTHERWISE TO ACQUIRE
PROPERTY PLEDGED OR MORTGAGED OR CONVEYED TO SECURE ANY LOAN OR OTHER
INDEBTEDNESS OWING TO OR ACQUIRED BY THE SECRETARY UNDER SECTIONS 1001
1005D, 1007, AND 1008-1029 OF THIS TITLE; TO ACCEPT TITLE TO ANY
PROPERTY SO PURCHASED OR ACQUIRED; TO OPERATE FOR A PERIOD NOT IN
EXCESS OF ONE YEAR FROM THE DATE OF ACQUISITION, OR LEASE SUCH PROPERTY
FOR SUCH PERIOD AS MAY BE DEEMED NECESSARY TO PROTECT THE INVESTMENT
THEREIN; AND TO SELL OR OTHERWISE DISPOSE OF SUCH PROPERTY IN A MANNER
CONSISTENT WITH THE PROVISIONS OF SECTION 1017 OF THIS TITLE." 
..END :



UNITED STATES V. HOUGHAM 364 U.S. 310 


NO. 24.  ARGUED OCTOBER 18, 1960 - DECIDED NOVEMBER 7, 1960 - 270 F.2D
290, REVERSED. 


THE GOVERNMENT SUED RESPONDENTS TO RECOVER CIVIL DAMAGES UNDER SEC.
26(B)(1) OF THE SURPLUS PROPERTY ACT OF 1944 FOR OBTAINING SURPLUS
GOVERNMENT PROPERTY BY FRAUD.  LATER IT MOVED TO FILE AN AMENDED
COMPLAINT SEEKING INSTEAD TO RECOVER DAMAGES UNDER SEC. 26(B)(2).  THAT
MOTION WAS WITHDRAWN, AND THE GOVERNMENT FILED A SECOND AMENDED
COMPLAINT AGAIN SEEKING DAMAGES UNDER SEC. 26(B)(1).  AFTER TRIAL, THE
DISTRICT COURT AWARDED THE GOVERNMENT DAMAGES UNDER SEC. 26(B)(1). 
BOTH SIDES APPEALED, AND THE COURT OF APPEALS AFFIRMED.  WHILE THE
APPEAL WAS PENDING, THE GOVERNMENT ACCEPTED FROM RESPONDENTS PROMISSORY
NOTES TOTALLING THE AMOUNT OF THE JUDGMENT, AND IT RELEASED ONLY ITS
JUDGMENT LIENS IN TWO COUNTIES.  HELD: 

1.  BY ACCEPTING PAYMENT OF AN AMOUNT EQUAL TO THE JUDGMENT APPEALED
FROM AS INADEQUATE AND RELEASING ONLY ITS JUDGMENT LIENS IN TWO
COUNTIES IN THE CIRCUMSTANCES OF THIS CASE, THE GOVERNMENT DID NOT LOSE
ITS RIGHT TO PRESS ITS CLAIM FOR THE FULL AMOUNT OF THE DAMAGES IT
BELIEVED TO BE DUE.  PP. 312-313. 

2.  RECOVERIES UNDER SEC. 26(B) ARE NOT PENALTIES, AND THE CLAIMS
ASSERTED BY THE GOVERNMENT WERE NOT BARRED BY THE STATUTE OF
LIMITATIONS.  P. 313. 

3.  IN THE CIRCUMSTANCES OF THIS CASE, IN WHICH THE ISSUE WAS
PRESERVED IN A PRETRIAL ORDER PURSUANT TO RULE 16 OF THE FEDERAL RULES
OF CIVIL PROCEDURE, THE GOVERNMENT DID NOT WAIVE ITS CONTENTION THAT IT
WAS ENTITLED TO CHANGE ITS ELECTION OF REMEDIES AND TO RECOVER UNDER
SEC. 26(B)(2), INSTEAD OF SEC. 26(B)(1).  PP. 313-316. 

4.  THE GOVERNMENT'S ORIGINAL COMPLAINT SEEKING DAMAGES UNDER SEC.
26(B)(1) DID NOT CONSTITUTE AN IRREVOCABLE ELECTION OF REMEDIES; AND,
IN THE CIRCUMSTANCES OF THIS CASE, THE GOVERNMENT HAD A RIGHT TO AMEND
ITS PLEADINGS SO AS TO SEEK DAMAGES UNDER SEC. 26(B)(2).  PP. 316-317. 

5.  SECTION 26(B) DID NOT EMPOWER THE DISTRICT COURT TO DETERMINE
ACCORDING TO THE EVIDENCE WHICH OF THE THREE SUBSECTIONS WOULD BE THE
MOST APPROPRIATE AND TO REQUIRE THE GOVERNMENT TO ACCEPT JUDGMENT UNDER
THAT SUBSECTION.  P. 317. 

6.  IN THE CIRCUMSTANCES OF THIS CASE, RESPONDENTS ARE NOT ENTITLED
TO A NEW TRIAL.  PP. 317-318. 

UNITED STATES V. HOUGHAM ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PREFERENCES TO VETERANS IN THE PURCHASE OF SURPLUS WAR MATERIALS.  58
STAT. 765.  SECTION 26 AUTHORIZED THE UNITED STATES TO RECOVER DAMAGES
AGAINST ANY PERSON WHO OBTAINS SUCH PROPERTY FROM THE GOVERNMENT BY
"FRAUDULENT TRICK, SCHEME, OR DEVICE  ...  ."  THE COMPLAINT IN THIS
CASE CHARGED THAT RESPONDENT HOUGHAM, A NONVETERAN, COMBINED WITH THE
OTHER RESPONDENTS, WHO ARE VETERANS, AND OBTAINED FOR HIS OWN BUSINESS
PURPOSES HUNDREDS OF ITEMS OF SURPLUS PROPERTY, INCLUDING TRUCKS,
TRAILERS AND OTHER EQUIPMENT, BY FRAUDULENT USE OF THE VETERAN
RESPONDENTS' PRIORITY CERTIFICATES.  AFTER HEARINGS, THE DISTRICT COURT
FOUND RESPONDENTS GUILTY OF FRAUD AS CHARGED AND AWARDED DAMAGES IN THE
AMOUNT OF $8,000.  BOTH SIDES APPEALED.  THE COURT OF APPEALS AFFIRMED,
REJECTING BOTH THE GOVERNMENT'S CONTENTION THAT THE DAMAGES AWARDED
WERE INADEQUATE AND THE RESPONDENTS' CONTENTIONS THAT THE FINDING OF
FRAUD WAS CLEARLY ERRONEOUS AND THAT THE CLAIMS WERE BARRED BY THE
STATUTE OF LIMITATIONS.  270 F.2D 290.  BECAUSE THE CASE RAISES
IMPORTANT QUESTIONS CONCERNING THE INTERPRETATION AND APPLICATION OF
THE SURPLUS PROPERTY ACT, WE GRANTED THE GOVERNMENT'S PETITION FOR
CERTIORARI.  361 U.S. 958. 

THE RESPONDENTS FIRST CONTEND THAT THE ENTIRE CONTROVERSY HERE HAS
BEEN SETTLED, IS THEREFORE MOOT, AND THAT THE GOVERNMENT IS ESTOPPED
FROM FURTHER PRESSING CLAIMS AGAINST THEM.  THIS CONTENTION RESTS UPON
THE FACT - SET OUT IN RESPONDENT'S BRIEF AND NOT DISPUTED BY THE
GOVERNMENT - THAT AFTER THE TRIAL COURT JUDGMENT WAS ENTERED AND BEFORE
IT WAS AFFIRMED BY THE COURT OF APPEALS, THE GOVERNMENT ACCEPTED FROM
RESPONDENTS PROMISSORY NOTES TOTALLING $8,000, THE AMOUNT OF THE TRIAL
COURT JUDGMENT.  THE CONTENTION IS THAT THIS FACT ALONE RENDERS THE
CASE MOOT OR AT LEAST CREATES SOME SORT OF ESTOPPEL AGAINST THE
GOVERNMENT.  WE DISAGREE.  IT IS A GENERALLY ACCEPTED RULE OF LAW THAT
WHERE A JUDGMENT IS APPEALED ON THE GROUND THAT THE DAMAGES AWARDED ARE
INADEQUATE, ACCEPTANCE OF PAYMENT OF THE AMOUNT OF THE UNSATISFACTORY
JUDGMENT DOES NOT, STANDING ALONE, AMOUNT TO AN ACCORD AND SATISFACTION
OF THE ENTIRE CLAIM.  SEE, FOR EXAMPLE, EMBRY V. PALMER, 107 U.S. 3;
ERWIN V. LOWRY, 7 HOW.  172, 183-184.  THIS CASE PROVIDES A PERFECT
EXAMPLE OF THE GOOD SENSE UNDERLYING THAT RULE.  FOR HERE IT WAS THE
RESPONDENTS THEMSELVES WHO PROPOSED PAYMENT OF THE $8,000, ASSERTING
EXPRESSLY AS THEIR PURPOSE IN SO DOING THE OBTAINING OF A "FULL RELEASE
OF JUDGMENT LIENS" FILED IN THE COUNTIES OF LOS ANGELES AND KERN.  THE
GOVERNMENT DID NOTHING MORE IN THE ENTIRE TRANSACTION THAN ACCEPT THE
NOTES AND EXECUTE THE REQUESTED RELEASE.  SINCE THAT RELEASE WAS
EXPRESSLY DENOMINATED ONLY AS A "FULL RELEASE OF JUDGMENT LIENS" FOR
THE COUNTIES OF LOS ANGELES AND KERN, IT SIMPLY IS NOT AND CANNOT
PROPERLY BE INTERPRETED TO CONSTITUTE A FULL RELEASE OF ALL THE
GOVERNMENT'S CLAIMS AGAINST RESPONDENTS.  MOREOVER, SINCE THE TRANSFER
OF THE NOTES OCCURRED PRIOR TO THE DECISION OF THE COURT OF APPEALS, IT
IS CLEAR THAT NEITHER OF THE PARTIES REGARDED THAT TRANSFER AS AN
ACCORD AND SATISFACTION OF THE ENTIRE CONTROVERSY FOR BOTH PURSUED
THEIR APPEALS IN THAT COURT.  THUS RESPONDENTS' CONTENTION HERE IS
TOTALLY INCONSISTENT WITH THEIR POSITION IN THE COURT OF APPEALS WHERE
THEY SOUGHT TO AVOID ALL LIABILITY TO THE GOVERNMENT, INCLUDING
LIABILITY FOR THE $8,000 THEY HAD ALREADY PAID.  FOR THAT POSITION MUST
NECESSARILY HAVE BEEN PREDICATED UPON THE VIEW THAT THE PAYMENT WAS
WITHOUT PREJUDICE TO THE RIGHTS OF EITHER PARTY AS THOSE RIGHTS MIGHT
COME TO BE ESTABLISHED BY SUBSEQUENT JUDICIAL DECREE.  UNDER SUCH
CIRCUMSTANCES, THE CONTENTION THAT THE GOVERNMENT HAS LOST ITS RIGHT TO
PRESS ITS CLAIM FOR THE FULL AMOUNT OF DAMAGES IT BELIEVES DUE IS
WHOLLY UNTENABLE. 

WE FIND IT UNNECESSARY TO DISCUSS AT LENGTH RESPONDENTS' SECOND
CONTENTION - THAT THE CLAIMS ASSERTED BY THE GOVERNMENT ARE BARRED BY
THE STATUTE OF LIMITATIONS.  IT IS SUFFICIENT TO SAY THAT THE COURTS
BELOW WERE ENTIRELY CORRECT IN REJECTING THAT CONTENTION FOR, RESTING
AS IT DOES UPON THE ASSUMPTION THAT RECOVERIES UNDER SEC. 26(B) ARE
PENALTIES, IT IS INCONSISTENT WITH OUR HOLDING IN REX TRAILER CO. V.
UNITED STATES, 350 U.S. 148. 

WE THEREFORE PROCEED TO THE PRINCIPAL CONTROVERSY - THE QUESTION OF
THE ADEQUACY OF THE DAMAGES AWARDED TO THE GOVERNMENT.  SECTION 26(B)
PROVIDES IN RELEVANT PART THAT THOSE WHO OBTAIN PROPERTY BY THE KIND OF
FRAUD ESTABLISHED HERE: 

"(1)  SHALL PAY TO THE UNITED STATES THE SUM OF $2,000 FOR EACH SUCH
ACT, AND DOUBLE THE AMOUNT OF ANY DAMAGE WHICH THE UNITED STATES MAY
HAVE SUSTAINED BY REASON THEREOF, TOGETHER WITH THE COSTS OF SUIT; OR: 

"(2)  SHALL, IF THE UNITED STATES SHALL SO ELECT, PAY TO THE UNITED
STATES, AS LIQUIDATED DAMAGES, A SUM EQUAL TO TWICE THE CONSIDERATION
AGREED TO BE GIVEN BY SUCH PERSON TO THE UNITED STATES OR ANY
GOVERNMENT AGENCY; OR: 

"(3)  SHALL, IF THE UNITED STATES SHALL SO ELECT, RESTORE TO THE
UNITED STATES THE PROPERTY THUS SECURED AND OBTAINED AND THE UNITED
STATES SHALL RETAIN AS LIQUIDATED DAMAGES ANY CONSIDERATION GIVEN TO
THE UNITED STATES OR ANY GOVERNMENT AGENCY FOR SUCH PROPERTY." 

IN ITS COMPLAINT AS ORIGINALLY FILED, THE GOVERNMENT CLAIMED RECOVERY
AS AUTHORIZED BY SEC. 26(B)(1) - $2,000 FOR EACH FRAUDULENT ACT PLUS
DOUBLE THE AMOUNT OF ANY ACTUAL DAMAGES.  SUBSEQUENTLY, THE GOVERNMENT
ATTEMPTED TO FILE A FIRST AMENDED COMPLAINT CLAIMING LIQUIDATED DAMAGES
UNDER SEC. 26(B)(2).  UPON INDICATION OF THE TRIAL JUDGE THAT THE CLAIM
IN THE ORIGINAL COMPLAINT UNDER SEC. 26(B)(1) AMOUNTED TO AN
IRREVOCABLE ELECTION OF REMEDIES, BUT WITHOUT ANY FORMAL RULING TO THAT
EFFECT, THE GOVERNMENT WITHDREW THE FIRST AMENDED COMPLAINT AND FILED A
SECOND AMENDED COMPLAINT IN WHICH IT REVERTED TO ITS ORIGINAL CLAIM
UNDER SEC. 26(B)(1).  STILL LATER, HOWEVER, FOLLOWING PRETRIAL
PROCEEDINGS UNDER RULE 16 OF THE FEDERAL RULES OF CIVIL PROCEDURE, THE
DISTRICT JUDGE, WITH THE APPROVAL OF COUNSEL FOR BOTH PARTIES, ENTERED
A PRETRIAL CONFERENCE ORDER WHICH PROVIDED, "THIS ORDER SHALL
SUPPLEMENT THE PLEADINGS AND GOVERN THE COURSE OF THE TRIAL OF THIS
CAUSE, UNLESS MODIFIED TO PREVENT MANIFEST INJUSTICE."  AND THE ORDER
EXPRESSLY ENUMERATED THE "ISSUES OF LAW" THAT REMAINED "TO BE LITIGATED
UPON THE TRIAL."  ONE OF THE ISSUES SO RESERVED WAS THE LEGAL
CORRECTNESS OF THE GOVERNMENT'S ARGUMENT THAT IT WAS ENTITLED TO
RECOVER "DOUBLE THE AMOUNT OF THE SALES PRICE OF THE VEHICLES DESCRIBED
IN THE SECOND AMENDED COMPLAINT," THAT IT WAS "ENTITLED TO MAKE ITS
ELECTION (AS BETWEEN SEC. 26(B)(1) AND SEC. 26(B)(2)) AT ANY TIME PRIOR
TO JUDGMENT" AND THAT IT DID THEN ELECT "IN THE EVENT OF JUDGMENT IN
ITS FAVOR, TO RECEIVE AS LIQUIDATED DAMAGES A SUM EQUAL TO TWICE THE
CONSIDERATION AGREED TO BE GIVEN TO THE UNITED STATES."  THE DISTRICT
COURT ULTIMATELY DECIDED THIS LEGAL ISSUE AGAINST THE GOVERNMENT,
HOLDING THAT THE ORIGINAL COMPLAINT CONSTITUTED AN IRREVOCABLE
ELECTION, AND PROCEEDED TO AWARD DAMAGES OF $8,000 UNDER SEC.
26(B)(1).  THE COURT OF APPEALS AFFIRMED THIS JUSGMENT ON A DIFFERENT
GROUND.  IT HELD THAT THE REFUSAL OF THE DISTRICT COURT TO PERMIT
RECOVERY UNDER SEC. 26(B)(2) WAS WITHIN ITS POWER TO DETERMINE THE
APPROPRIATE REMEDY UNDER SEC. 26(B), ASSERTING THAT NO ISSUE AS TO
ELECTION OF REMEDIES WAS EVEN INVOLVED IN THE CASE.  270 F.2D, AT 293. 

THE GOVERNMENT CONTENDS THAT DENIAL OF RECOVERY UNDER SEC. 26(B)(2)
CANNOT BE JUSTIFIED ON EITHER OF THE THEORIES ADOPTED BELOW. 
RESPONDENTS CONTEND THAT THE GOVERNMENT WAIVED ITS RIGHT TO URGE THIS
CONTENTION BY VOLUNTARILY PROCEEDING TO JUDGMENT ON THE SECOND AMENDED
COMPLAINT.  THIS CONTENTION IS PREDICATED UPON THE FAILURE OF THE
GOVERNMENT TO GET A FORMAL RULING ON ITS FIRST AMENDED COMPLAINT BEFORE
WITHDRAWING IT AND FILING THE SECOND AMENDED COMPLAINT.  BUT, AS SHOWN
ABOVE, THE PRETRIAL ORDER AND THE CONCLUSIONS OF LAW OF THE DISTRICT
COURT BOTH SHOW THAT THE GOVERNMENT URGED ITS RIGHT TO CHANGE ITS
ELECTION UP TO THE TIME JUDGMENT WAS RENDERED.  THAT PRETRIAL ORDER, AS
AUTHORIZED BY RULE 16, CONCLUSIVELY ESTABLISHED THE ISSUES OF FACT AND
LAW IN THE CASE AND DECLARED THAT THE ISSUES SO ESTABLISHED SHOULD
"SUPPLEMENT THE PLEADINGS AND GOVERN THE COURSE OF THE TRIAL  ...  ." 
ONE OF THESE SUPPLEMENTARY ISSUES WAS THE GOVERNMENT'S CONTENTION THAT
IT WAS ENTITLED TO RECOVER UNDER SEC. 26(B)(2), RATHER THAN UNDER SEC.
26(B)(1) AS CLAIMED IN THE SECOND AMENDED COMPLAINT.  THUS THE PRETRIAL
ORDER CHANGED THE CLAIM IN THAT COMPLAINT FROM SEC. 26(B)(1) TO SEC.
26(B)(2) INSOFAR AS THE GOVERNMENT HAD THE POWER TO CHANGE ITS
ELECTION, AND POSED AN ISSUE WHICH REQUIRED ADJUDICATION BY THE
DISTRICT COURT.  THAT SUCH WAS THE EFFECT OF THE ORDER IS CLEAR FROM
THE LANGUAGE OF RULE 16 WHICH PROVIDES THAT THE COURT, AFTER PRETRIAL
CONFERENCE, "SHALL MAKE AN ORDER WHICH RECITES  ...  THE AMENDMENTS
ALLOWED TO THE PLEADINGS  ...  AND SUCH ORDER WHEN ENTERED CONTROLS THE
SUBSEQUENT COURSE OF THE ACTION, UNLESS MODIFIED AT THE TRIAL TO
PREVENT MANIFEST INJUSTICE."  SINCE THE PRETRIAL ORDER HERE RESERVED
THE LEGAL QUESTION AS TO THE GOVERNMENT'S RIGHT TO CHANGE ITS ELECTION
AND SINCE THE COURT EXPRESSLY DECIDED THAT QUESTION AGAINST THE
GOVERNMENT,* THE QUESTION MOST CERTAINLY WAS NOT WAIVED AND MUST HERE
BE DETERMINED. 

*THE LANGUAGE OF THE TRIAL JUDGE ON THIS POINT WAS UNEQUIVOCAL: 

"THIS COURT RULES THAT THE PLAINTIFF UNITED STATES CAN ONLY RECEIVE
LIQUIDATED DAMAGES UNDER THE PROVISIONS OF SECTION 26(B)(2) IF IT
ELECTS TO RECEIVE ONLY SUCH DAMAGES ORIGINALLY IN THE ACTION; THAT
SINCE THE UNITED STATES SOUGHT DAMAGES UNDER THE PROVISIONS OF SECTION
26(B)(1) IN THE ORIGINAL COMPLAINT, THAT SUCH IS AN IRREVOCABLE
ELECTION; THAT THE PLAINTIFF UNITED STATES CANNOT THEREAFTER AMEND ITS
COMPLAINT TO SEEK LIQUIDATED DAMAGES UNDER THE PROVISIONS OF SECTION
26(B)(2), OR OTHERWISE ELECT TO RECEIVE LIQUIDATED DAMAGES UNDER THE
PROVISIONS OF SECTION 26(B)(2), BUT THAT THE UNITED STATES IS
THEREAFTER LIMITED AS THE MEASURE OF ITS RECOVERY FOR LIQUIDATED
DAMAGES TO THOSE LIQUIDATED DAMAGES SET FORTH IN SECTION 26(B)(1)." 

THUS, WE COME TO THE QUESTION WHETHER THE COURTS BELOW WERE CORRECT
IN HOLDING THAT THE GOVERNMENT WAS NOT ENTITLED TO DAMAGES UNDER SEC.
26(B)(2).  WITH RESPECT TO THE THEORY ADOPTED BY THE DISTRICT COURT
THAT THE GOVERNMENT'S ORIGINAL COMPLAINT CONSTITUTED AN IRREVOCABLE
ELECTION OF REMEDIES, WE CAN FIND NOTHING EITHER IN THE LANGUAGE OF
SEC. 26(B) OR IN ITS LEGISLATIVE HISTORY WHICH LENDS THE SLIGHTEST
SUPPORT TO SUCH A CONSTRUCTION.  THIS FACT LEADS NATURALLY TO THE
CONCLUSION THAT THE ORDINARY LIBERAL RULES GOVERNING THE AMENDMENT OF
PLEADINGS ARE APPLICABLE.  THE APPLICABLE RULE IS RULE 15 OF THE
FEDERAL RULES OF CIVIL PROCEDURE, WHICH WAS DESIGNED TO FACILITATE THE
AMENDMENT OF PLEADINGS EXCEPT WHERE PREJUDICE TO THE OPPOSING PARTY
WOULD RESULT.  DESPITE RESPONDENTS' ARGUMENT TO THE CONTRARY, WE SEE
THIS CASE AS ONE WHERE THERE PLAINLY WAS NO SUCH PREJUDICE.  IN SUCH A
SITUATION, ACCEPTANCE OF RESPONDENTS' CONTENTION ON THIS POINT WOULD
SUBVERT THE BASIC PURPOSE OF THE RULE.  "THE FEDERAL RULES REJECT THE
APPROACH THAT PLEADING IS A GAME OF SKILL IN WHICH ONE MISSTEP BY
COUNSEL MAY BE DECISIVE TO THE OUTCOME AND ACCEPT THE PRINCIPLE THAT
THE PURPOSE OF PLEADING IS TO FACILITATE A PROPER DECISION ON THE
MERITS."  CONLEY V. GIBSON, 355 U.S. 41, 48.  WE THEREFORE CONCLUDE
THAT UNDER THE CIRCUMSTANCES OF THIS CASE THE GOVERNMENT HAD A RIGHT TO
AMEND ITS PLEADINGS AND THAT THE DISTRICT COURT ERRED IN REFUSING TO
PERMIT SUCH AMENDMENT. 

THE ALTERNATIVE THEORY OF THE COURT OF APPEALS APPEARS, UPON
EXAMINATION, TO BE EQUALLY UNTENABLE.   THE COURT OF APPEALS
INTERPRETED SEC. 26(B) AS PLACING POWER IN THE DISTRICT COURT TO
DETERMINE, ACCORDING TO THE EVIDENCE PRESENTED IN ANY PARTICULAR CASE,
WHICH OF THE THREE SUBSECTIONS WOULD BE MOST APPROPRIATE AND TO REQUIRE
THE GOVERNMENT TO ACCEPT JUDGMENT UNDER THAT SUBSECTION.  THAT
INTERPRETATION COLLIDES WITH THE EXPRESS LANGUAGE OF SEC. 26(B) WHICH
PROVIDES FOR RECOVERY UNDER ANY ONE OF THE THREE SUBSECTIONS "IF THE
UNITED STATES SHALL SO ELECT."  SINCE THE LANGUAGE OF THE SECTION IS
CONCLUSIVE ON THIS POINT, THE THEORY ADOPTED BY THE COURT OF APPEALS
MUST ALSO BE REJECTED. 

THE RESPONDENTS' FINAL CONTENTION IS THAT IN ANY EVENT THEY ARE
ENTITLED TO A NEW TRIAL.  OBVIOUSLY, THERE NEED BE NO NEW TRIAL ON THE
FRAUD ISSUE.  BUT RESPONDENTS ALSO URGE THAT THERE IS NO SUPPORT IN THE
RECORD FOR A JUDGMENT FIXING THE GOVERNMENT'S RECOVERY UNDER SEC.
26(B)(2) AT "TWICE THE CONSIDERATION AGREED TO BE GIVEN" FOR THE
VEHICLES.  THERE WAS NO CONSIDERATION "AGREED TO BE GIVEN," THE
ARGUMENT PROCEEDS, BECAUSE ALL THE TRANSACTIONS INVOLVED CASH SALES AT
A PRICE FIXED BY THE GOVERNMENT.  THIS ARGUMENT, WHILE INGENIOUS, IS
NOT SOUND.  CASH SALES, LIKE OTHERS, MUST FOLLOW AN AGREEMENT OF THE
PARTIES WITH REGARD TO CONSIDERATION "TO BE GIVEN."  RESPONDENTS'
CONTENTION TO THE CONTRARY WOULD, IF ACCEPTED, ALLOW ANY PURCHASER FROM
THE GOVERNMENT TO EFFECTIVELY AVOID LIABILITY UNDER SEC. 26(B)(2)
SIMPLY BY BEING CAREFUL TO MAKE ALL OF ITS FRAUDULENT DEALINGS IN
CASH.  PLAINLY, HOWEVER, THE GOVERNMENT SUFFERS JUST AS MUCH FROM A
FRAUDULENT CASH SALE AS FROM A FRAUDULENT CREDIT SALE.  AN
INTERPRETATION OF SEC. 26(B)(2) WHICH ALLOWS RECOVERY FOR THE ONE BUT
NOT FOR THE OTHER CANNOT BE ACCEPTED.  THE RESPONDENTS' CONTENTION FOR
A NEW TRIAL MUST BE REJECTED.   THE JUDGMENT IS THEREFORE REVERSED AND
THE CAUSE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO ENTER
JUDGMENT FOR THE UNITED STATES UNDER SEC. 26(B)(2).  IT IS SO ORDERED. 
MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

WITH ALL DEFERENCE, I CANNOT AGREE AND MUST DISSENT FOR TWO REASONS. 

FIRST.  ONE MAY NOT APPEAL FROM A MONEY JUDGMENT THAT HE HAS
COLLECTED AND SATISFIED.  HERE, AS THE COURT RECOGNIZES, AFTER THE
JUDGMENT WAS ENTERED THE GOVERNMENT ACCEPTED PROMISSORY NOTES FROM
RESPONDENTS IN PAYMENT OF THE JUDGMENT.  I THINK, WITH, I RESPECTFULLY
SUBMIT, THE SUPPORT OF ALL THE RELEVANT CASES - WHICH ARE LEGION - THAT
THE GOVERNMENT, HAVING RECOVERED A JUDGMENT FOR $8,000, OVER THE
SERIOUS PROTESTS OF RESPONDENTS THAT THEY OWED IT NOTHING, AND HAVING,
WITH KNOWLEDGE OF ALL THE FACTS, ACCEPTED THE BENEFITS OF THE JUDGMENT
BY COLLECTING AND SATISFYING IT, CANNOT THEREAFTER PROSECUTE AN APPEAL
TO REVERSE IT. 

THE COURT RELIES ON EMBRY V. PALMER, 107 U.S. 3, AND ERWIN V. LOWRY,
7 HOW.  172, 184, FOR ITS CONCLUSION THAT THE GOVERNMENT MAY PROSECUTE
THIS APPEAL FROM THE JUDGMENT NOTWITHSTANDING IT HAS SATISFIED IT.
BUT, WITH DEFERENCE, I MUST SAY THOSE CASES DO NOT SUPPORT THE COURT'S
CONCLUSION.  THE ISSUE IN THE EMBRY CASE WAS WHETHER EMBRY WAS ENTITLED
TO $9,185.18, AS HE CLAIMED, OR TO ONLY $2,296.29, AS THE RESPONDENTS
CONTENDED AND ADMITTED TO BE DUE.  THE COURT AWARDED RECOVERY OF ONLY
THE LATTER SUM WHICH EMBRY ACCEPTED.  HE AFTERWARDS APPEALED FROM THE
JUDGMENT, AND IT WAS HELD THAT HE MIGHT DO SO FOR, AS THE COURT POINTED
OUT:  "THE AMOUNT AWARDED, PAID, AND ACCEPTED CONSTITUTES NO PART OF
WHAT IS IN CONTROVERSY."  ID., AT 8.  HOW DIFFERENT FROM THE SITUATION
HERE]  THAT CASE WAS LIKE THE LATER ONE OF REYNES V. DUMONT, 130 U.S.
354, WHERE THE APPELLANTS RECEIVED SO MANY OF CERTAIN BONDS AS WERE NOT
TAKEN TO SATISFY THE JUDGMENT FROM WHICH THEY APPEALED.  IT WAS
CONTENDED THAT THEIR ACTION IN DOING THIS SO COMPLETELY ACCEPTED THE
JUDGMENT THAT THEY COULD NOT APPEAL.  IN REJECTING THAT CONTENTION,
THIS COURT SAID: 

"THE ACCEPTANCE BY APPELLANTS OF WHAT WAS CONFESSEDLY THEIRS CANNOT
BE CONSTRUED INTO AN ADMISSION THAT THE DECREEE THEY SEEK TO REVERSE
WAS NOT ERRONEOUS, NOR DOES IT TAKE FROM APPELLEES ANYTHING, ON THE
REVERSAL OF THE DECREE, TO WHICH THEY WOULD OTHERWISE BE ENTITLED. 
EMBRY V. PALMER, 107 U.S. 3, 8."  130 U.S., AT 394. 

THOSE CASES FALL WITHIN A WELL-RECOGNIZED BUT VERY NARROW EXCEPTION
TO THE GENERAL RULE THAT IS APPLICABLE HERE.  SIMILARLY, THE ERWIN CASE
DID NOT INVOLVE THE COLLECTION AND SATISFACTION OF A JUDGMENT.  RATHER,
IT INVOLVED ONLY THE PERFORMANCE BY ERWIN OF A MINOR COLLATERAL
"CONDITION IMPOSED UPON HIM BEFORE HE COULD HAVE THE FRUITS OF THE
DECREE" IN EQUITY.  ID., AT 184.  LIKE EMBRY, THAT CASE DOES NOT AT ALL
RULE THE QUESTION HERE PRESENTED. 

THE CASE IN THIS COURT THAT MOST NEARLY RULES OUR QUESTION IS
GILFILLAN V. MCKEE, 159 U.S. 303.  THERE APPELLANT CLAIMED AN INTEREST
IN A SPECIAL FUND OF $7,070 AND ALSO CLAIMED TO BE ENTITLED JOINTLY TO
PARTICIPATE IN A GENERAL FUND OF $147,057.63.  A PORTION OF THE SPECIAL
FUND WAS AWARDED TO HIM IN ONE DIVISION OF THE JUDGMENT, BUT ANOTHER
DIVISION OF THE JUDGMENT DENIED TO HIM ANY RIGHT TO PARTICIPATE IN THE
GENERAL FUND.  HE APPEALED, AND WAS MET WITH THE CLAIM THAT BY
ACCEPTING THE AWARD OF A PART OF THE SPECIAL FUND, HE HAD TAKEN UNDER
THE JUDGMENT AND THEREFORE COULD NOT APPEAL FROM IT.  RECOGNIZING THAT
ONE CANNOT APPEAL FROM A JUDGMENT THAT HE HAS COLLECTED AND SATISFIED,
THE COURT SAID:  "  ...  THE ACCEPTANCE OF THE WHOLE OR A PART OF A
PARTICULAR AMOUNT AWARDED TO A DEFENDANT MIGHT PERHAPS OPERATE TO ESTOP
HIM FROM INSISTING UPON AN APPEAL."  BUT THE COURT FOUND THAT "THERE
WERE PRACTICALLY TWO DECREES IN THIS CASE, ONE APPLICABLE TO THE
SPECIAL FUND, WHICH, IN THE BILL, THE SUBSEQUENT PLEADINGS, AND IN THE
DECREE, HAD BEEN KEPT AS A DISTINCT AND SEPARATE MATTER, A PORTION OF
WHICH FUND WAS AWARDED TO MCPHERSON; AND THE OTHER APPLICABLE TO THE
GENERAL FUND IN WHICH MCPHERSON HAD BEEN DENIED ANY PARTICIPATION
WHATEVER."  AND THE COURT HELD THAT "HIS ACCEPTANCE OF A SHARE IN THE
SPECIAL FUND DID NOT OPERATE AS A WAIVER OF HIS APPEAL FROM THE OTHER
PART OF THE DECREE DISPOSING OF THE GENERAL FUND."  ID., AT 311. 

THE FOURTH CIRCUIT HAS FLATLY RULED THIS QUESTION IN FINEFROCK V.
KENOVA MINE CAR CO., 37 F.2D 310, AMONG OTHER CASES.  THERE THE
APPELLANT ACCEPTED PAYMENT OF A JUDGMENT FOR AN AMOUNT SUBSTANTIALLY
LESS THAN HE CLAIMED AND AFTERWARDS APPEALED.  IN HOLDING THAT HE COULD
NOT APPEAL FROM A JUDGMENT THAT HE HAD COLLECTED AND SATISFIED, THE
COURT SAID AT 314: 

"WE DO NOT FIND IT NECESSARY TO ENTER INTO A DISCUSSION OF THESE
QUESTIONS IN VIEW OF THE ACCEPTANCE BY THE APPELLANT OF THE AMOUNT
ALLOWED HIM IN FULL SATISFACTION AND DISCHARGE OF THE JUDGMENT.  HE
CONTENDS THAT THERE IS NO INCONSISTENCY IN HIS ACCEPTANCE OF THE MONEY
AND THE PROSECUTION OF THE APPEAL, RELYING ON SUCH DECISIONS AS EMBRY
V. PALMER, 107 U.S. 3, 8, 2 S. CT. 25, 27 L. ED. 346; MCFARLAND V.
HURLEY (C.C.A.)  286 F. 365; CARSON LUMBER CO. V. ST. LOUIS, ETC.,
RAILROAD CO. (C.C.A.)  209 F. 191, 193; SNOW V. HAZLEWOOD (C.C.A.)  179
F. 182.  BUT IT IS OBVIOUS THAT HE FALLS WITHIN THE GENERAL RULE AND
NOT WITHIN THE EXCEPTIONS THERETO AS SET OUT IN CARSON LUMBER CO. V.
ST. LOUIS, ETC., RAILROAD CO., SUPRA."  (FN1) 

THE THIRD CIRCUIT HAS LIKEWISE FLATLY RULED THE QUESTION IN THE SAME
WAY, SMITH V. MORRIS, 69 F.2D 3; SO HAS THE FIFTH CIRCUIT, KAISER V.
STANDARD OIL CO., 89 F.2D 58; WHITE & YARBOROUGH V. DAILEY, 228 F.2D
836, AND THE EIGHTH CIRCUIT, CARSON LUMBER CO. V. ST. LOUIS & S.F.R.
CO., 209 F. 191.  LITERALLY DOZENS OF CASES BY THE COURTS OF LAST
RESORT IN ALMOST ALL THE STATES IN THE UNION HAVE SO HELD.  (FN2) 

I, THEREFORE, RESPECTFULLY SUBMIT THAT THE SETTLED LAW REQURIES THE
CONCLUSION THAT THE GOVERNMENT, HAVING COLLECTED AND SATISFIED THIS
JUDGMENT WITH KNOWLEDGE OF ALL THE FACTS, CANNOT PROSECUTE THIS APPEAL
TO REVERSE IT.  THIS APPEAL SHOULD, THEREFORE, BE DISMISSED. 

SECOND.  AT ALL EVENTS, THE GOVERNMENT IS NOT ENTITLED TO A REVERSAL
OF THE JUDGMENT, BECAUSE IT WENT TO TRIAL, AND PROCEEDED ALL THE WAY TO
JUDGMENT, UPON A COMPLAINT AND ASKED DAMAGES ONLY UNDER SUBDIVISION (1)
OF SEC. 26(B), NOT UNDER SUBDIVISION (2) OF THAT SECTION.  THE
PROCEDURAL CHRONOLOGY WAS AS FOLLOWS.  IN ITS ORIGINAL COMPLAINT THE
GOVERNMENT SOUGHT DAMAGES "OF $2,000 FOR EACH SUCH ACT," UNDER
SUBDIVISION (1).  IT THEREAFTER FILED A MOTION FOR LEAVE TO FILE A
FIRST AMENDED COMPLAINT ASKING DAMAGES IN "A SUM EQUAL TO TWICE THE
CONSIDERATION AGREED TO BE GIVEN," UNDER SUBDIVISION (2).  BUT IT DID
NOT PRESS THAT MOTION TO DECISION.  ON THE CONTRARY, THE RECORD SHOWS
THAT THE GOVERNMENT FORMALLY WITHDREW THAT MOTION AND INSTEAD FILED A
SECOND AMENDED COMPLAINT, AGAIN, AS IN ITS ORIGINAL COMPLAINT, ASKING
DAMAGES IN "THE SUM OF $2,000 FOR EACH SUCH ACT," UNDER SUBDIVISION
(1).  IT WAS UPON THAT COMPLAINT THAT IT WENT TO TRIAL AND ALL THE WAY
TO JUDGMENT.   OF COURSE, UNDER THE EXPRESS TERMS OF SEC. 26(B), THE
GOVERNMENT HAD THE RIGHT TO ELECT WHICH OF THE THREE ALLOWABLE MEASURES
OF RECOVERY IT WOULD SEEK, BUT SURELY IT IS POSSIBLE FOR THE GOVERNMENT
AT SOME STAGE IRREVOCABLY TO MAKE THAT ELECTION.  I AGREE IT DID NOT
IRREVOCABLY DO SO BY THE FILING OF THE ORIGINAL COMPLAINT, BUT I INSIST
THAT IT DID DO SO BY FILING THE SECOND AMENDED COMPLAINT AND GOING TO
TRIAL AND ALL THE WAY TO JUDGMENT ON IT.  IF THAT CONDUCT DID NOT
EFFECT THE ELECTION, I WOULD ASK WHAT COULD? 

IT IS TRUE THAT A PRETRIAL CONFERENCE WAS HELD AND A PRETRIAL ORDER
WAS ENTERED, UNDER RULE 16 OF FED. RULES CIV. PROC. ONE OF THE OBJECTS
AUTHORIZED BY THAT RULE IS "THE SIMPLIFICATION OF THE ISSUES," AND
ANOTHER IS TO CONSIDER "THE NECESSITY OR DESIRABILITY OF AMENDMENTS TO
THE PLEADINGS."  THE ORDER RECITED THAT ONE OF THE ISSUES OF FACT TO BE
TRIED WAS WHETHER THE "DEFENDANTS BECAME AND ARE LIABLE TO PAY TO THE
UNITED STATES THE SUM OF $2,000 FOR EACH ACT COMMITTED BY THEM THAT MAY
BE DETERMINED BY THE COURT TO BE IN VIOLATION OF SAID STATUTE"; AND,
UNDER "ISSUES OF LAW  ...  TO BE LITIGATED UPON THE TRIAL," THE
FOLLOWING APPEARS: 

"IT IS THE CONTENTION OF PLAINTIFF THAT IT IS ENTITLED TO DOUBLE THE
AMOUNT OF THE SALES PRICE OF THE VEHICLES DESCRIBED IN THE SECOND
AMENDED COMPLAINT  ...  .  PREVIOUSLY THE COURT HAS INDICATED THAT AN
IRREVOCABLE ELECTION HAS BEEN MADE BY THE UNITED STATES BY VIRTUE OF
THE SUCCESSIVE COMPLAINTS ON FILE.  IT IS THE CONTENTION OF PLAINTIFF
THAT IT IS ENTITLED TO MAKE ITS ELECTION AT ANY TIME PRIOR TO
JUDGMENT.  PLAINTIFF ELECTS, IN THE EVENT OF JUDGMENT IN ITS FAVOR, TO
RECEIVE AS LIQUIDATED DAMAGES A SUM EQUAL TO TWICE THE CONSIDERATION
AGREED TO BE GIVEN TO THE UNITED STATES OR FEDERAL AGENCY INVOLVED. 
PLAINTIFF RESPECTFULLY CALLS THIS TO THE ATTENTION OF THE COURT SO THAT
THE POINT MAY BE PRESERVED FOR PURPOSES OF APPEAL." 

OF COURSE, IN SIMPLIFYING THE ISSUES, THE COURT MAY, BY THE PRETRIAL
ORDER, DEFINE THE ISSUES TO BE TRIED, BUT THOSE ISSUES MUST BE WITHIN
THE PLEADINGS.  AND AMENDMENTS TO THE PLEADINGS SHOULD BE FREELY
ALLOWED AS RULE 15 PROVIDES.  BUT HERE THE GOVERNMENT DID NOT SEEK
LEAVE AT THE PRETRIAL CONFERENCE, OR AT ANY TIME AFTER HAVING
VOLUNTARILY FILED ITS SECOND AMENDED COMPLAINT, TO AMEND ITS PLEADING. 
IT DID NOT EVEN UNCONDITIONALLY ELECT AT THE PRETRIAL CONFERENCE TO
PROCEED UNDER SUBDIVISION (2) BUT ONLY "IN THE EVENT OF JUDGMENT IN ITS
FAVOR."  INSTEAD, IT WENT ALL THE WAY TO TRIAL, AND TO JUDGMENT, ON THE
COMPLAINT THAT SOUGHT DAMAGES IN "THE SUM OF $2,000 FOR EACH SUCH ACT,"
AND IT OBTAINED A JUDGMENT ON THAT BASIS.  SURELY, THAT CONDUCT
CONSTITUTED AN IRREVOCABLE ELECTION BY THE GOVERNMENT TO RECOVER
DAMAGES IN THE MEASURE CLAIMED IN ITS FINAL COMPLAINT, AND I THINK THE
GOVERNMENT IS BOUND BY IT. 

FOR THE FIRST OF THESE REASONS, I WOULD DISMISS THE APPEAL, BUT
INASMUCH AS THE COURT DOES NOT AGREE, I WOULD, AT THE MINIMUM, AFFIRM
THE JUDGMENT ON THE GROUND THAT THE GOVERNMENT IRREVOCABLY ELECTED TO
RECOVER THE MEASURE OF DAMAGES THAT IT RECOVERED AND HENCE IS BOUND BY
THAT ELECTION. 

FN1  IN CARSON LUMBER CO. V. ST. LOUIS & S.F.R. CO., 209 F. 191 (C.A.
8TH CIR.), THE COURT SAID, AT 193-194: 

"IT IS UNDOUBTEDLY THE GENERAL RULE THAT A PARTY WHO OBTAINS THE
BENEFIT OF AN ORDER OR JUDGMENT, AND ACCEPTS THE BENEFIT OR RECEIVES
THE ADVANTAGE, SHALL BE AFTERWARDS PRECLUDED FROM ASKING THAT THE ORDER
OR JUDGMENT BE REVIEWED.  NEVERTHELESS, THIS RULE IS NOT ABSOLUTE WHERE
THE JUDGMENT OR DECREE IS NOT SO INDIVISIBLE THAT IT MUST BE SUSTAINED
OR REVERSED AS A WHOLE.  IT HAS NO APPLICATION TO CASES WHERE THE
APPELLANT IS SHOWN TO BE SO ABSOLUTELY ENTITLED TO THE SUM COLLECTED
UPON THE JUDGMENT THAT THE REVERSAL OF IT WILL NOT AFFECT HIS RIGHT TO
THE AMOUNT ACCEPTED (REYNES V. DUMONT, 130 U.S. 354-394, 9 SUP. CT.
486, 32 L. ED. 934), ESPECIALLY WHERE THERE IS NOT PRESENT CONDUCT
WHICH IS INCONSISTENT WITH THE CLAIM OF A RIGHT TO REVERSE THE JUDGMENT
OR DECREE, WHICH IT IS SOUGHT TO BRING INTO REVIEW (EMBRY V. PALMER,
107 U.S. 3-8, 2 SUP. CT. 25, 27 L. ED. 346; MERRIAM V. HAAS, 3 WALL. 
687, 18 L. ED. 29; UNITED STATES V. DASHIEL, 3 WALL.  688, 18 L. ED.
268)." 

FN2  THOSE INTERESTED WILL FIND MANY OF THOSE CASES COLLECTED IN THE
NOTES TO 2 AM. JUR., APPEAL AND ERROR, SEC. 214, WHERE THE AUTHORS HAVE
REGARDED THE RULE AS SO CERTAIN AND UNIVERSAL AS TO PERMIT THEM FLATLY
TO SAY:  "THE GENERAL RULE  ...  IS THAT A LITIGANT WHO HAS,
VOLUNTARILY AND WITH KNOWLEDGE OF ALL THE MATERIAL FACTS, ACCEPTED THE
BENEFITS OF AN ORDER, DECREE, OR JUDGMENT OF A COURT, CANNOT AFTERWARDS
TAKE OR PROSECUTE AN APPEAL OR ERROR PROCEEDING TO REVERSE IT." 
..END :




MICHALIC V. CLEVELAND TANKERS, INC. 364 U.S. 325 


NO. 31.  ARGUED OCTOBER 20, 1960 - DECIDED NOVEMBER 7, 1960 - 271 F.2D
194, REVERSED. 


IN THIS SUIT BY A SEAMAN, UNDER THE JONES ACT AND FOR UNSEAWORTHINESS
UNDER THE GENERAL MARITIME LAW, TO RECOVER FROM A SHIPOWNER FOR
PERSONAL INJURIES SUSTAINED WHILE A MEMBER OF THE CREW OF ITS SHIP WHEN
AN ALLEGEDLY DEFECTIVE WRENCH WITH WHICH HE WAS WORKING SLIPPED OFF A
NUT AND HIT HIS TOE, HELD:  THE EVIDENCE WAS SUFFICIENT TO PRESENT A
JURY QUESTION, UNDER THE UNSEAWORTHINESS CLAIM, AS TO WHETHER THE
WRENCH WAS A REASONABLY SUITABLE APPLIANCE, AND, UNDER THE JONES ACT
CLAIM, AS TO THE SHIPOWNER'S ALLEGED FAILURE TO EXERCISE DUE CARE IN
FURNISHING A WRENCH WHICH WAS NOT A REASONABLY SUITABLE APPLIANCE; AND
THE TRIAL JUDGE ERRED IN DIRECTING A VERDICT FOR THE SHIPOWNER.  PP.
325-332. 

MICHALIC V. CLEVELAND TANKERS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER ASKS DAMAGES FOR PERSONAL INJURIES HE ALLEGEDLY
SUSTAINED IN A SHIPBOARD ACCIDENT WHILE A CREW MEMBER ABOARD THE
RESPONDENT'S GREAT LAKES VESSEL, THE TANKER ORION.  HIS COMPLAINT
ALLEGES RESPONDENT'S LIABILITY BOTH FOR NEGLIGENCE UNDER THE JONES ACT,
46 U.S.C. SEC. 688, AND FOR UNSEAWORTHINESS UNDER THE GENERAL MARITIME
LAW; (FN1) A CLAIM FOR MAINTENANCE AND CURE IS ALSO ALLEGED.  THE
PARTIES SETTLED THE CLAIM FOR MAINTENANCE AND CURE AT THE TRIAL, WHICH
WAS BEFORE A JURY IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OHIO.  JUDGMENT WAS ENTERED FOR THE RESPONDENT ON THE UNSEAWORTHINESS
AND JONES ACT CLAIMS UPON A VERDICT DIRECTED BY THE TRIAL JUDGE ON THE
GROUND OF INSUFFICIENCY OF THE EVIDENCE.  THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT AFFIRMED.  271 F.2D 194.  WE GRANTED CERTIORARI, 362 U.S.
909. 

MICHALIC CLAIMS THAT IN A SHIPBOARD ACCIDENT ON DECEMBER 28, 1955, A
TWO-AND-ONE-HALF-POUND WRENCH DROPPED ON HIS LEFT GREAT TOE.  MICHALIC
WAS AFFLICTED WITH BUERGER'S DISEASE WHEN HE JOINED THE ORION THREE
MONTHS EARLIER AS A FIREMAN IN THE ENGINE ROOM.  WE ARE INFORMED BY THE
TESTIMONY OF ONE OF THE MEDICAL WITNESSES THAT BUERGER'S DISEASE "IS A
DISEASE OF UNKNOWN ORIGIN  ...  IT PRODUCES A NARROWING OF THE BLOOD
SUPPLY GOING TO THE FOOT THROUGH THE ARTERIES, AND IT RUNS A VERY
FORESEEABLE COURSE; IT IS SLOWLY PROGRESSIVE IN MOST CASES AND LEADS TO
PROGRESSIVE LOSS OF BLOOD SUPPLY TO THE EXTREMITIES INVOLVING USUALLY
THE LEGS"; FOR ONE AFFLICTED WITH THE DISEASE TO DROP "A HAMMER ON HIS
TOE  ...  IS A VERY SERIOUS THING AND FREQUENTLY LEADS TO AMPUTATION
...  .  BECAUSE THE CIRCULATION IS ALREADY IMPAIRED AND THE WOUND WILL
NOT HEAL PROPERLY, AND ANY APPRECIABLE TRAUMA WILL FREQUENTLY LEAD TO
GANGRENE." 

MICHALIC DID NOT REPORT THE ACCIDENT AT THE TIME BUT CONTINUED
WORKING UNTIL JANUARY 6, 1956, A WEEK LATER, WHEN THE VESSEL WAS LAID
UP FOR THE WINTER.  MEANWHILE HE TREATED THE TOE EVERY NIGHT AFTER WORK
IN HOT WATER AND EPSOM SALTS.  HE WAS AT HIS HOME FROM JANUARY 6 TO
MARCH 15 AND USED HOT BORIC ACID SOAKS "PRACTICALLY EVERY DAY."  HE WAS
CALLED BACK TO THE ORION ON MARCH 15.  ON APRIL 1, 1956, HE REPORTED TO
THE ORION'S CAPTAIN THAT "MY LEG WAS SO BAD, SO PAINFUL, I COULDN'T
TAKE IT NO MORE  ...  I WANT A HOSPITAL TICKET."  THE CAPTAIN GAVE HIM
THE TICKET AFTER FILLING OUT A REPORT IN WHICH HE STATED THAT MICHALIC
TOLD HIM THAT ON DECEMBER 28, 1955, "WHILE WORKING WITH PUMPMAN IN
PUMPROOM MAN SAID HE DROPPED A WRENCH ON HIS FOOT AND HIS TOE HAS BEEN
SORE EVER SINCE."  THIS WAS THE FIRST NOTICE RESPONDENT HAD OF ANY
ACCIDENT. 

AT THE HOSPITAL IN APRIL, A DIAGNOSIS WAS MADE OF "AN INFECTED LEFT
GREAT TOE NAIL AND GANGRENE OF THE LEFT GREAT TOE SECONDARY TO THE
BUERGER'S DISEASE."  DURING THE SPRING THREE AMPUTATIONS WERE PERFORMED
ON THE LEFT LEG, FIRST THE GREAT LEFT TOE, NEXT THE LEFT LEG BELOW THE
KNEE AND THEN PART OF THE LEG ABOVE THE KNEE.  MEDICAL EXPERTS, THREE
ON BEHALF OF THE PETITIONER AND ONE FOR THE RESPONDENT, DIFFERED
WHETHER, ASSUMING THAT THE WRENCH DROPPED ON MICHALIC'S LEFT GREAT TOE
ON DECEMBER 28, THERE WAS A CAUSAL CONNECTION BETWEEN THAT TRAUMA AND
THE AMPUTATIONS.  THIS PLAINLY PRESENTED A QUESTION FOR THE JURY'S
DETERMINATION, SENTILLES V. INTER-CARIBBEAN CORP., 361 U.S. 107, AND WE
DO NOT UNDERSTAND THAT THE RESPONDENT CONTENDS OTHERWISE. 

THE BASIC DISPUTE BETWEEN THE PARTIES IS AS TO THE SUFFICIENCY OF THE
PROOFS TO JUSTIFY THE JURY'S FINDING WITH REASON THAT RESPONDENT
FURNISHED MICHALIC WITH A WRENCH WHICH WAS NOT REASONABLY FIT FOR ITS
INTENDED USE.  HERE A DISTINCTION SHOULD BE NOTICED BETWEEN THE
UNSEAWORTHINESS AND JONES ACT CLAIMS IN THIS REGARD.  THE VESSEL'S DUTY
TO FURNISH SEAMEN WITH TOOLS REASONABLY FIT FOR THEIR INTENDED USE IS
ABSOLUTE, MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96; SEAS SHIPPING CO.
V. SIERACKI, 328 U.S. 85; THE OSCEOLA, 189 U.S. 158; COX V. ESSO
SHIPPING CO., 247 F.2D 629; AND THIS DUTY IS COMPLETELY INDEPENDENT OF
THE OWNER'S DUTY UNDER THE JONES ACT TO EXERCISE REASONABLE CARE. 
MITCHELL V. TRAWLER RACER, INC., 362 U.S. 539.  THE DIFFERENCES ARE
STATED IN COX V. ESSO SHIPPING CO., SUPRA: 

"ONE IS AN ABSOLUTE DUTY, THE OTHER IS DUE CARE.  WHERE  ...  THE
ULTIMATE ISSUE  ...  IS SEAWORTHINESS OF THE GEAR  ...  .  THE OWNER
HAS AN ABSOLUTE DUTY TO FURNISH REASONABLY SUITABLE APPLIANCES.  IF HE
DOES NOT, THEN NO AMOUNT OF DUE CARE OR PRUDENCE EXCUSES HIM, WHETHER
HE KNEW, OR COULD HAVE KNOWN, OF ITS DEFICIENCY AT THE OUTSET OR AFTER
USE.  IN CONTRAST, UNDER THE NEGLIGENCE CONCEPT, THERE IS ONLY A DUTY
TO USE DUE CARE, I.E., REASONABLE PRUDENCE, TO SELECT AND KEEP IN ORDER
REASONABLY SUITABLE APPLIANCES.  DEFECTS WHICH WOULD NOT HAVE BEEN
KNOWN TO A REASONABLY PRUDENT PERSON AT THE OUTSET, OR AROSE AFTER USE
AND WHICH A REASONABLY PRUDENT PERSON OUGHT NOT TO HAVE DISCOVERED
WOULD IMPOSE NO LIABILITY."  247 F.2D, AT 637. 

THUS THE QUESTION UNDER MICHALIC'S UNSEAWORTHINESS CLAIM IS THE
SINGLE ONE AS TO THE SUFFICIENCY OF THE PROOFS TO RAISE A JURY QUESTION
WHETHER THE WRENCH FURNISHED MICHALIC WAS A REASONABLY SUITABLE
APPLIANCE FOR THE TASK HE WAS ASSIGNED.  TO SUPPORT THE JONES ACT
CLAIM, HOWEVER, THE EVIDENCE MUST ALSO BE SUFFICIENT TO RAISE A JURY
QUESTION WHETHER THE RESPONDENT FAILED TO EXERCISE DUE CARE IN
FURNISHING A WRENCH WHICH WAS NOT A REASONABLY SUITABLE APPLIANCE. 

THE WRENCH DROPPED ON MICHALIC'S FOOT WHILE HE WAS USING IT TO
UNSCREW NUTS FROM BOLTS ON THE CASING OF A CENTRIFUGAL PUMP IN THE
PUMPROOM.  HE HAD BEEN ASSIGNED THIS TASK BY THE PUMPMAN AFTER THE
FIRST ASSISTANT ENGINEER SENT HIM FROM THE ENGINE ROOM TO THE PUMPROOM
TO HELP READY THE PUMPS FOR THE VESSEL'S WINTER LAY-UP.  THERE WERE
ABOUT TWENTY-FIVE 1 5/8 INCH NUTS TIGHTLY SECURED TO THE BOLTS ON THE
CASING.  THE PUMPMAN GAVE HIM A 1 5/8 INCH STRAIGHT-END WRENCH WEIGHING
TWO AND ONE-HALF POINDS AND TEN TO ELEVEN INCHES LONG, AND ALSO A
MALLET.  THE PUMP WAS LOCATED ALONGSIDE AND SOME INCHES BELOW A
CATWALK, AND MICHALIC HAD TO STEP DOWN FROM THE CATWALK TO REACH THE
CASING.   HIS TASK REQUIRED THE GRIPPING OF EACH NUT IN THE CLAW OF THE
WRENCH AND THE HAMMERING OF THE SIDE OF THE WRENCH WITH THE MALLET TO
APPLY PRESSURE TO LOOSEN IT.  MICHALIC HAD REMOVED ALL BUT A FEW OF THE
NUTS WHEN HE "HAD HOLD OF A NUT" WITH THE WRENCH AND "I HIT IT (THE
WRENCH) WITH THE MALLET AND IT SLIPPED OFF THE NUT AND CAME DOWN THE
SIDE OF THE PUMP AND HIT MY BIG TOE  ...  .  YES, SHE SLIPPED OFF THE
NUT ON THE PUMP AND CAME DOWN THE SIDE OF THE PUMP AND SMASHED BY BIG
TOE." 

MICHALIC CONTENDS THAT THE PROOFS WERE SUFFICIENT TO JUSTIFY THE JURY
IN FINDING WITH REASON THAT THERE WAS PLAY IN THE CLAW OF THE WRENCH
WHICH PREVENTED A TIGHT GRIP ON THE NUT, THUS ENTITLING HIM TO THE
JURY'S DETERMINATION OF HIS UNSEAWORTHINESS CLAIM, AND WERE ALSO
SUFFICIENT TO JUSTIFY THE JURY IN FINDING WITH REASON THAT THE
RESPONDENT NEGLIGENTLY FURNISHED HIM WITH A DEFECTIVE WRENCH, THUS
ENTITLING HIM ALSO TO THE JURY'S DETERMINATION OF HIS JONES ACT CLAIM. 
THE EVIDENCE VIEWED IN A LIGHT FAVORABLE TO HIM WAS AS FOLLOWS:  THE
WRENCH AND OTHER PUMPROOM TOOLS WERE KEPT IN THE PUMPROOM TOOLBOX AND
WERE USED ONLY WHEN THE VESSEL WAS BEING PREPARED FOR LAY-UP.  THE
TOOLS WERE FOUR OR FIVE YEARS OLD.  BECAUSE OF THE DANGER OF FIRE, THE
TOOLS, INCLUDING THE WRENCH AND MALLET WHICH MICHALIC USED, WERE MADE
OF A SPECIAL SPARK-PROOF ALLOY.  THE SECOND MATE, WHO HAD LEFT THE
ORION ON DECEMBER 19, (FN2) TESTIFIED THAT THE TOOLS WERE BRONZE
BECAUSE "BRONZE TOOLS ARE FOR NON-STRIKING."  IT WAS THE PRACTICE TO
INSPECT THE PUMPROOM TOOLS AND REPLACE WORN ONES BEFORE THEIR USE AT
LAY-UP TIME, BUT THE FIRST ASSISTANT ENGINEER WHO TESTIFIED TO THE
PRACTICE DID NOT SAY THIS INSPECTION WAS MADE IN 1955; AND THE PUMPMAN
TESTIFIED THAT "IT COULD BE" THAT NO ONE LOOKED AT THE TOOLBOX FOR NINE
MONTHS BEFORE DECEMBER 28.  THE SECOND MATE TESTIFIED THAT THE TOOLS
"HAD BEEN VERY BEATEN AND BATTERED, PERHAPS THERE FOR SOME TIME." 
MICHALIC TESTIFIED THAT HE NOTICED WHEN THE PUMPMAN GAVE HIM THE WRENCH
THAT IT WAS AN "OLD BEATUP WRENCH  ...  ALL CHEWED UP ON THE END." 
MICHALIC SAID THAT WHEN HE STARTED WORK "THE WRENCH WAS SLIPPING OFF
THE NUTS; IT SLIPPED OFF EVERY ONE OF THEM."  HE "HAD A HARD TIME
LOOSENING THEM OFF."  HE PROTESTED TO THE PUMPMAN THAT "THIS WRENCH
KEEPS SLIPPING OFF," AND THE PUMPMAN ANSWERED "NEVER MIND ABOUT THAT,
DO THE JOB AS BEST YOU CAN." 

THE TRIAL JUDGE FOUND THE EVIDENCE TO BE INSUFFICIENT TO PRESENT A
JURY QUESTION WHETHER THE WRENCH WAS A REASONABLY SUITABLE APPLIANCE,
BECAUSE "ON THE THEORY THE GRIP IS WORN  ...  THERE IS NEVER ANY
MENTION OF THE GRIP IN THE CASE  ...  ."  THE COURT OF APPEALS TOOK THE
SAME VIEW, SAYING "THERE WAS NO EVIDENCE THAT THE OPEN OR JAW END OF
THE WRENCH WAS IN ANY WAY DEFICIENT  ...  THE FACT THAT THE WRENCH
SLIPPED IS NOT EVIDENCE THAT ITS SLIPPING WAS THE CONSEQUENCE OF SOME
CONDITION IN THE JAW OR HANDLE OF THE WRENCH."  271 F.2D, AT 199.  WE
THINK THAT BOTH LOWER COURTS ERRED.  TRUE, THERE WAS NO DIRECT EVIDENCE
OF PLAY IN THE JAW OF THE WRENCH, AS IN JACOB V. NEW YORK CITY, 315
U.S. 752, 754.  BUT DIRECT EVIDENCE OF A FACT IS NOT REQUIRED. 
CIRCUMSTANTIAL EVIDENCE IS NOT ONLY SUFFICIENT, BUT MAY ALSO BE MORE
CERTAIN, SATISFYING AND PERSUASIVE THAN DIRECT EVIDENCE.  ROGERS V.
MISSOURI PACIFIC R. CO., 352 U.S. 500, 508, N. 17.  (FN3)  THE JURY, ON
THIS RECORD, WITH THE INFERENCES PERMISSIBLE FROM THE RESPONDENT'S OWN
TESTIMONY THAT INSPECTIONS WERE NECESSARY TO REPLACE TOOLS OF THIS
SPECIAL ALLOY BECAUSE OF WEAR WHICH IMPAIRED THEIR EFFECTIVENESS, COULD
REASONABLY HAVE FOUND THAT THE WRENCH REPEATEDLY SLIPPED FROM THE NUTS
BECAUSE THE JAW OF THE WRENCH DID NOT PROPERLY GRIP THEM.  PLAINLY THE
JURY, WITH REASON, COULD INFER THAT THE COLLOQUY BETWEEN MICHALIC AND
THE PUMPMAN, AND MICHALIC'S TESTIMONY AS TO SLIPPING, RELATED TO THE
FUNCTION OF THE JAW OF THE WRENCH IN GRIPPING THE NUTS AND THAT THERE
WAS PLAY IN IT WHICH CAUSED THE WRENCH TO SLIP OFF.  THUS THE PROOF
SUFFICED TO RAISE QUESTIONS FOR THE JURY'S DETERMINATION OF BOTH THE
UNSEAWORTHINESS AND JONES ACT CLAIMS.  "IT DOES NOT MATTER THAT, FROM
THE EVIDENCE, THE JURY MAY ALSO WITH REASON ON GROUNDS OF PROBABILITY,
ATTRIBUTE THE RESULT TO OTHER CAUSES  ...  ."  ROGERS V. MISSOURI
PACIFIC R. CO., SUPRA, P. 506.  (FN4)

THE JONES ACT CLAIM IS DOUBLE-BARRELED.  MICHALIC ADDS A CHARGE OF
NEGLIGENT FAILURE TO PROVIDE HIM WITH A SAFE PLACE TO WORK TO THE
CHARGE OF NEGLIGENCE IN FURNISHING HIM WITH A DEFECTIVE WRENCH. 
HOWEVER, THE CASE WAS NOT TRIED, NOR IS IT ARGUED HERE, ON THE BASIS
THAT THE CHARGE OF NEGLIGENCE IN FAILING TO PROVIDE A SAFE PLACE TO
WORK RESTS SOLELY ON EVIDENCE TENDING TO SHOW A CRAMPED AND POORLY
LIGHTED WORKING SPACE, REGARDLESS OF THE SUITABILITY OF THE WRENCH.  ON
THE CONTRARY, MICHALIC ALSO MAKES THE ALLEGEDLY DEFECTIVE WRENCH THE
BASIS OF THIS CHARGE, ARGUING IN EFFECT THAT THE DESCRIBED CONDITIONS
UNDER WHICH HE WAS REQUIRED TO DO THE WORK INCREASED THE HAZARD FROM
THE USE OF THE DEFECTIVE WRENCH.  UNDER THAT THEORY, THE RELEVANCE OF
THE TESTIMONY IS ONLY TO THE CHARGE OF FURNISHING A DEFECTIVE WRENCH
AND THE CAUSAL CONNECTION BETWEEN THAT ACT AND HIS INJURY.  PHRASING
THE CLAIM AS A FAILURE TO PROVIDE A SAFE PLACE TO WORK THEREFORE ADDS
NOTHING TO MICHALIC'S CASE, AND HE WAS NOT ENTITLED TO HAVE THAT CLAIM
SUBMITTED TO THE JURY AS AN ADDITIONAL GROUND OF THE RESPONDENT'S
ALLEGED LIABILITY. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE
REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL.  IT IS SO ORDERED. 

FN1 THE PARTIES TRIED THE CASE IN THE DISTRICT COURT, AND ARGUED IT
HERE AND IN THE COURT OF APPEALS, AS RAISING ISSUES BOTH OF NEGLIGENCE
UNDER THE JONES ACT AND UNSEAWORTHINESS UNDER THE GENERAL MARITIME
LAW.  WE THEREFORE NEED NOT BE CONCERNED WITH THE CONFUSING LANGUAGE OF
THE COMPLAINT AND WHETHER IT MAY BE READ AS PLEADING A CLAIM SOLELY ON
THE THEORY OF NEGLIGENCE. 

FN2  THE TRIAL JUDGE ORDERED THE SECOND MATE'S TESTIMONY TO BE
STRICKEN FROM THE RECORD WHEN IT APPEARED THAT THE MATE LEFT THE ORION
ON DECEMBER 19.  THE COURT OF APPEALS NEVERTHELESS CONSIDERED THE
TESTIMONY SO FAR AS IT CONCERNED THE CONDITION OF THE TOOLS.  271 F.2D,
AT 196.  WE THINK THE ACTION OF THE COURT OF APPEALS WAS CORRECT IN
LIGHT OF THE TESTIMONY OF RESPONDENT'S OWN WITNESSES, FROM WHICH IT IS
REASONABLE TO INFER THAT THE TOOLS USED ON DECEMBER 28 HAD BEEN IN THE
TOOLBOX FOR SOME TIME PRIOR TO DECEMBER 19. 

FN3  THE TRIAL JUDGE RESTED HIS ACTION PARTLY ON A SUPPOSED VARIANCE
BETWEEN THE COMPLAINT AND THE PROOF AT THE TRIAL.  THE COMPLAINT
ALLEGED THAT THE WRENCH WAS "AN OLD DEFECTIVE WRENCH IN AN UNSEAWORTHY
CONDITION IN THAT THE TEETH AND GRIP OF THE WRENCH WERE WORN AND
DEFECTIVE."  MICHALIC AND ALL THE WITNESSES AT THE TRIAL WHO TESTIFIED
ABOUT THE WRENCH DESCRIBED ITS CLAW AS SMOOTH-FACED AND WITHOUT TEETH. 
WE SEE NO FATAL VARIANCE AND IN ANY EVENT RESPONDENT WAIVED RELIANCE ON
ANY BY EXPRESSLY DISCLAIMING SURPRISE AT THE TRIAL.    FN4  THE
PETITIONER DOES NOT INVOKE THE DISTRICT COURT'S JURISDICTION ON GROUNDS
OF DIVERSITY OF CITIZENSHIP.  THUS THERE IS JURISDICTION ON THE LAW
SIDE OF THE COURT OF THE UNSEAWORTHINESS CLAIM ONLY AS "PENDENT" TO
JURISDICTION UNDER THE JONES ACT.  ROMERO V. INTERNATIONAL TERMINAL
OPERATING CO., 358 U.S. 354, 380-381.  HOWEVER, THE QUESTION EXPRESSLY
RESERVED IN ROMERO, P. 381 - WHETHER THE DISTRICT COURT MAY SUBMIT THE
"PENDENT" CLAIM TO THE JURY - IS NOT PRESENTED BY THE CASE.  THE ORION
WAS A GREAT LAKES VESSEL AND THE PETITIONER IS ENTITLED TO A JURY TRIAL
OF HIS UNSEAWORTHINESS CLAIM UNDER 28 U.S.C. SEC. 1873.  SEE TROUPE V.
CHICAGO, D.&G. BAY TRANSIT CO., 234 F.2D 253; THE WESTERN STATES, 159
F. 354; JENKINS V. RODERICK, 156 F. SUPP. 299. 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI WAS IMPROVIDENTLY GRANTED. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE WHITTAKER AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

AT THE OPENING OF A TERM WHICH FINDS THE COURT'S DOCKET CROWDED WITH
MORE IMPORTANT AND DIFFICULT LITIGATION THAN IN MANY YEARS, IT IS NOT
WITHOUT IRONY THAT WE SHOULD BE WITNESSING AMONG THE FIRST MATTERS TO
BE HEARD A ROUTINE NEGLIGENCE (AND UNSEAWORTHINESS) (FN1) CASE
INVOLVING ONLY ISSUES OF FACT.  I CONTINUE TO BELIEVE THAT SUCH CASES,
DISTRESSING AND IMPORTANT AS THEY ARE FOR UNSUCCESSFUL PLAINTIFFS, DO
NOT BELONG IN THIS COURT.  SEE DISSENTING OPINIONS IN ROGERS V.
MISSOURI PACIFIC R. CO., 352 U.S. 500, AT 524, 559. 

THE DISTRICT COURT, FINDING THAT THE EVIDENCE PRESENTED NO QUESTIONS
FOR THE JURY, DIRECTED A VERDICT FOR THE RESPONDENT.  THE COURT OF
APPEALS, IN AN OPINION WHICH MANIFESTS A CONSCIENTIOUS EFFORT TO FOLLOW
THE PRECEPTS OF THE ROGERS CASE, UNANIMOUSLY AFFIRMED, AFTER A
PAINSTAKING ASSESSMENT OF THE RECORD.  271 F.2D 194.  MY OWN
EXAMINATION OF THE RECORD AND OF THE OPINION OF THE COURT OF APPEALS
CONVINCES ME THAT THERE IS NO WARRANT FOR THIS COURT OVERRIDING THE
VIEWS OF THE TWO LOWER COURTS. 

THE CORE OF PETITIONER'S CASE WAS THE CONDITION OF THE WRENCH, HIS
UNSAFE-PLACE-TO-WORK THEORY HAVING EVAPORATED IN THIS AIR, AS THE COURT
RECOGNIZES.  HAVING HAD TO ABANDON HIS ORIGINAL THEORY THAT THE CLAW OF
THE WRENCH HAD DEFECTIVE TEETH (SINCE THE WRENCH WAS TOOTHLESS),
PETITIONER TESTIFIED (1) THAT THE INSTRUMENT WAS AN "OLD BEAT-UP WRENCH
...  ALL CHEWED UP ON THE END" (WHETHER AT THE CLAW OR HANDLE DOES NOT
APPEAR); AND (2) THAT THE WRENCH HAD SLIPPED OFF NUTS AT VARIOUS TIMES
DURING THE OPERATION (ALBEIT PETITIONER HAD BEFORE THE ACCIDENT
SUCCESSFULLY REMOVED SOME 15 OUT OF 20 NUTS WITHOUT MISHAP). 

WHILE THE COURT, IN STATING THAT "THERE WAS NO DIRECT EVIDENCE OF
PLAY IN THE JAW OF THE WRENCH," SEEMS TO RECOGNIZE THAT THIS TESTIMONY
DID NOT SUFFICE TO SHOW ANY ACTIONABLE FLAW IN THE WRENCH, IT
NONETHELESS CONCLUDES THAT THE JURY SHOULD HAVE BEEN PERMITTED TO INFER
ONE, IN LIGHT OT TWO OTHER FACTORS.  THESE ARE (1) THE SECOND MATE'S
TESTIMONY THAT AS OF SOME 10 DAYS BEFORE THE ACCIDENT, (FN2) THE TOOLS
IN THE PUMPROOM TOOLBOX "HAD BEEN VERY BEATEN AND BATTERED" (WHETHER AT
THE CLAW OR HANDLE, OR ANYWHERE ELSE, DOES NOT APPEAR); AND (2) OTHER
EVIDENCE WHICH, AS I READ ITS OPINION, THE COURT TAKES AS ESTABLISHING
THAT THE TOOLS WERE OLD AND INFREQUENTLY INSPECTED.  (ACTUALLY THE
RECORD SHOWS THAT THE TOOLS HAD BEEN USED ONLY FOUR OR FIVE TIMES AND
THAT THE WRENCH HAD BEEN INSPECTED JUST BEFORE IT WAS HANDED TO
PETITIONER.)  (FN3) 

JUDGED BY ANY REASONABLE STANDARD THIS EVIDENCE, FRAGMENTIZED OR
SYNTHESIZED AS ONE MAY PLEASE, DID NOT IN MY OPINION MAKE A CASE FOR
THE JURY.  THE ADDITIONAL FACTORS ON WHICH THE COURT RELIES ADD NOTHING
TO THE INHERENT DEFICIENCIES OF PETITIONER'S TESTIMONY WHICH THE COURT
SEEMS TO RECOGNIZE DID NOT OF ITSELF MAKE OUT A CASE OF EITHER
NEGLIGENCE OR UNSEAWORTHINESS.  IF IT IS PERMISSIBLE FOR A JURY TO
RATIONALIZE "INTO BEING" A DEFECTIVE WRENCH FOR THIS SORT OF EVIDENCE,
THEN WRENCHES HAVE INDEED BECOME DANGEROUS WEAPONS FOR THOSE OPERATING
VESSELS ON THE GREAT LAKES.  IF THE RULE OF ROGERS MEANS THAT IN FELA
CASES (FN4) TRIAL COURTS ARE DEPRIVED OF ALL SIGNIFICANT CONTROL OVER
JURY VERDICTS, AND JURIES ARE IN EFFECT TO BE ALLOWED TO ROAM AT LARGE,
I THINK THE LOWER FEDERAL COURTS SHOULD BE SO TOLD.  SEE HARRIS V.
PENNSYLVANIA R. CO., 361 U.S. 15, 25 (DISSENTING OPINION).  AT LEAST
THIS WOULD BE BETTER THAN CONTINUING TO REQUIRE THE LOWER COURTS TO
OPERATE IN WHAT MUST BE AN ATMOSPHERE OF INCREASING BEWILDERMENT OVER
WHAT IS EXPECTED OF THEM IN THESE FEDERAL NEGLIGENCE CASES. 

I WOULD AFFIRM. 

FN1  SEE NOTE 1 OF THE COURT'S OPINION, ANTE, P. 325. 

FN2  THE EXACT DATE OF THE ACCIDENT IS OBSCURE.  PETITIONER DID NOT
REPORT THE ALLEGED ACCIDENT FOR SOME SIX MONTHS AFTER HE CLAIMED IT
OCCURRED.  THE THEN MASTER TESTIFIED WITH RESPECT TO THE FILLING OUT OF
THE COMPANY ACCIDENT FORM: 

"Q.  HOW DID YOU ARRIVE AT THE DATE OF DECEMBER 28, 1955? 

"A.  WELL, IT WAS MERELY AN ARBITRARY DATE.  IT WAS KIND OF HARD TO
RECKON BACK AT THE TIME THIS FORM WAS MADE UP.  THIS WAS MADE UP ON THE
1ST OF APRIL FOLLOWING.  THIS MAY HAVE BEEN ANY TIME IN DECEMBER.  IT
MAY HAVE BEEN THE 21ST, IT MAY HAVE BEEN ANY TIME DURING THAT PERIOD
...  . 

"THE COURT:  THAT IS THE DATE PLAINTIFF GAVE.  WERE YOU ON THE VESSEL
ON THAT DAY, DECEMBER 28? 

"THE WITNESS:  NOT TO MY RECOLLECTION, SIR, BUT WHEN WE TYPED THIS UP
MR. MICHALIC, THE PLAINTIFF, GAVE ME THAT AS THE APPROXIMATE DATE.  HE
DIDN'T REALLY KNOW EXACTLY WHEN IT WOULD HAVE BEEN." 

FN3  THE PUMPMAN, WHOM PETITIONER WAS HELPING, TESTIFIED THAT THE
WRENCH USED BY PETITIONER WAS ONE OF THREE THAT HAD BEEN PROCURED FOUR
OR FIVE YEARS BEFORE; THAT THEY WERE USED ONLY ONCE A YEAR; AND THAT HE
HAD INSPECTED THE WRENCHES JUST BEFORE TAKING THEM OUT OF THE TOOL
CHEST ON THE DAY IN QUESTION. 

FN4  THE JONES ACT, HERE INVOLVED, INCORPORATES THE STANDARDS OF THE
FEDERAL EMPLOYERS' LIABILITY ACT. 
..END :















KELLEY V. RAGGIO 364 U.S. 336 


NO. 316.  DECIDED NOVEMBER 7, 1960 - REPORTED BELOW:  76 NEV. 157, 350
P.2D 724. 


APPEAL DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

KELLEY ET AL. V. RAGGIO ET AL. 

APPEAL FROM THE SUPREME COURT OF NEVADA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















CENTRAL ILLINOIS PUBLIC SERVICE CO. V. ILLINOIS COMMERCE COMMISSION 364
U.S. 336 


NO. 352.  DECIDED NOVEMBER 7, 1960 - REPORTED BELOW:  18 ILL. 2D 506,
165 N.E.2D 322. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

CENTRAL ILLINOIS PUBLIC SERVICE CO. V. ILLINOIS COMMERCE COMM'N ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :












OHIO, KING V. SHANNON 364 U.S. 337 


NO. 363.  DECIDED NOVEMBER 7, 1960 - REPORTED BELOW:  170 OHIO ST. 393,
165 N.E.2D 642. 


APPEAL DISMISSED BECAUSE THE JUDGMENT BELOW IS BASED ON A NON-FEDERAL
GROUND ADEQUATE TO SUPPORT IT.

OHIO EX REL. KING V. SHANNON, PRESIDING JUDGE, MUNICIPAL COURT OF
CINCINNATI, OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL HEREIN IS DISMISSED FOR THE REASON THAT THE JUDGMENT OF
THE SUPREME COURT OF THE STATE OF OHIO, SOUGHT HERE TO BE REVIEWED, IS
BASED UPON A NONFEDERAL GROUND ADEQUATE TO SUPPORT IT.
..END :











ARMCO STEEL CORP. V. MICHIGAN 364 U.S. 337 


NO. 387.  DECIDED NOVEMBER 7, 1960 - REPORTED BELOW:  359 MICH. 430, 102
N.W.2D 552. 


APPEAL DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

ARMCO STEEL CORP. V. MICHIGAN ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














RISS & CO. V. DALTON 364 U.S. 338 


NO. 386.  DECIDED NOVEMBER 7, 1960 - REPORTED BELOW:  335 S.W.2D 118. 


APPEAL DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

RISS & CO., INC., ET AL. V. DALTON, ATTORNEY GENERAL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :












MASON V. ECKLE 364 U.S. 338 


NO. 357, MISC.  DECIDED NOVEMBER 7, 1960 - REPORTED BELOW:  171 OHIO ST.
192, 168 N.E.2D 409. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

MASON V. ECKLE, PRISON FARM SUPERINTENDENT. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














NEW MEXICO V. COLORADO 364 U.S. 296 


NO. 1, ORIGINAL - DECIDED OCTOBER 24, 1960 - OPINION REPORTED:  267 U.S.
30. 


THE REPORT OF THE COMMISSIONER HERETOFORE DESIGNATED TO RUN, LOCATE
AND MARK THE BOUNDARY BETWEEN THE STATES OF NEW MEXICO AND COLORADO, AS
DETERMINED BY THIS COURT'S DECREE OF APRIL 13, 1925 (268 U.S. 108), IS
CONFIRMED; AND THE BOUNDARY LINE DELINEATED IN SAID REPORT AND ON THE
ACCOMPANYING MAPS IS ESTABLISHED AND DECLARED TO BE THE TRUE BOUNDARY
BETWEEN THOSE STATES. 

NEW MEXICO V. COLORADO. 

PER CURIAM. 

UPON CONSIDERATION OF THE REPORT FILED JUNE 27, 1960, BY JOSEPH C.
THOMA, COMMISSIONER, HERETOFORE DESIGNATED TO RUN, LOCATE AND MARK THE
BOUNDARY BETWEEN THE STATES OF NEW MEXICO AND COLORADO AS DETERMINED BY
THE DECREE OF THIS COURT OF APRIL 13, 1925 (268 U.S. 108), SHOWING THAT
HE HAS RUN, LOCATED AND MARKED SUCH BOUNDARY: 

AND NO OBJECTION OR EXCEPTION TO SUCH REPORT BEING PRESENTED, AND THE
TIME THEREFOR HAVING EXPIRED: 

IT IS NOW ADJUDGED, ORDERED AND DECREED AS FOLLOWS: 

(1)  THE SAID REPORT IS IN ALL THINGS CONFIRMED. 

(2)  THE BOUNDARY LINE DELINEATED AND SET FORTH IN SAID REPORT AND ON
THE ACCOMPANYING MAPS IS ESTABLISHED AND DECLARED TO BE THE TRUE
BOUNDARY BETWEEN THE STATES OF NEW MEXICO AND COLORADO. 

(3)  THE CLERK OF THIS COURT SHALL TRANSMIT TO THE CHIEF MAGISTRATES
OF THE STATES OF NEW MEXICO AND COLORADO AND TO THE SECRETARY OF THE
INTERIOR COPIES OF THIS DECREE, DULY AUTHENTICATED UNDER THE SEAL OF
THIS COURT, TOGETHER WITH COPIES OF SAID REPORT AND OF THE ACCOMPANYING
MAPS. 

(4)  AS IT APPEARS THAT THE SAID COMMISSIONER HAS COMPLETED HIS WORK
CONFORMABLY TO SAID DECREE, HE IS HEREBY DISCHARGED. 
..END :










ALL AMERICAN AIRWAYS, INC. V. UNITED AIR LINES, INC. 364 U.S. 297 


NO. 129.  DECIDED OCTOBER 24, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  108 U.S. APP. D.C. 1, 278
F.2D 446. 


ALL AMERICAN AIRWAYS, INC., ET AL. V. UNITED AIR LINES, INC., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE COURT OF APPEALS WITH
INSTRUCTIONS TO RETAIN JURISDICTION UNTIL SUCH TIME AS FURTHER
LEGISLATION HAS BEEN ENACTED OR PUBLIC LAW 86-661 (ACT OF JULY 14,
1960, 74 STAT. 527) HAS EXPIRED. 
..END :












SCHOOL DISTRICT OF ABINGTON TOWNSHIP, PA. V. SCHEMPP 364 U.S. 298 


NO. 297.  DECIDED OCTOBER 24, 1960 - JUDGMENT VACATED AND CASE REMANDED
REPORTED BELOW: 177 F. SUPP. 398. 


SCHOOL DISTRICT OF ABINGTON TOWNSHIP, PA., ET AL. V. SCHEMPP ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR SUCH FURTHER PROCEEDINGS AS MAY BE APPROPRIATE IN LIGHT OF
ACT NO. 700 OF THE LAWS OF THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF
PENNSYLVANIA, PASSED AT THE SESSION OF 1959 AND APPROVED BY THE
GOVERNOR OF THE COMMONWEALTH ON DECEMBER 17, 1959. 
..END :













DAYTON RUBBER CO. V. CORDOVAN ASSOCIATES, INC. 364 U.S. 299 


NO. 324.  DECIDED OCTOBER 24, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  279 F.2D 289. 


DAYTON RUBBER CO. V. CORDOVAN ASSOCIATES, INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF
COMMISSIONER OF INTERNAL REVENUE V. DUBERSTEIN, 363 U.S. 278, 291. 

MR. JUSTICE BLACK DISSENTS. 
..END :













STANDARD DREDGING CORP. V. ALABAMA 364 U.S. 300 


NO. 332.  DECIDED OCTOBER 24, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  - ALA. - , 122 SO. 2D
280. 


STANDARD DREDGING CORP. V. ALABAMA. 

APPEAL FROM THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















RUMMEL V. MUSGRAVE 364 U.S. 293 


NO. 303.  DECIDED OCTOBER 17, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  142 COLO. - , 350 P.2D
825. 


RUMMEL ET AL. V. MUSGRAVE ET AL. 

APPEAL FROM THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















PICCOTT V. FLORIDA 364 U.S. 293 


NO. 112, MISC.  DECIDED OCTOBER 17, 1960 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 116 SO. 2D 626. 


PICCOTT V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















COOPER V. PITCHESS 364 U.S. 294 


NO. 278.  DECIDED OCTOBER 17, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  53 CAL. 2D 772, 349 P.2D 956. 


COOPER ET AL. V. PITCHESS, SHERIFF, LOS ANGELES COUNTY, ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :













MORALES V. GALVESTON 364 U.S. 295 


NO. 167, MISC.  DECIDED OCTOBER 17, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  275 F.2D 191. 


MORALES ET AL. V. CITY OF GALVESTON ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR
CONSIDERATION IN LIGHT OF MITCHELL V. TRAWLER RACER, INC., 362 U.S.
539. 
..END :













CALIFORNIA CO. V. COLORADO 364 U.S. 285 


NO. 86.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  141 COLO. 288, 348 P.2D
382. 


CALIFORNIA COMPANY V. COLORADO ET AL. 

APPEAL FROM THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















THOMAS V. MICHIGAN 364 U.S. 286 


NO. 98.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED. 


THOMAS ET AL. V. MICHIGAN. 

APPEAL FROM THE RECORDER'S COURT OF THE CITY OF DETROIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :



















KOPPERS CO., INC. V. PENNSYLVANIA 364 U.S. 286 


NO. 100.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  397 PA. 523, 156 A.2D
328. 


KOPPERS COMPANY, INC., V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















WEST V. CALIFORNIA 364 U.S. 287 


NO. 117.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


WEST V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















KAHAN V. CALIFORNIA 364 U.S. 287 


NO. 130.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


KAHAN ET AL. V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF LOS ANGELES. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















ANDREWS V. CITY OF SAN BERNARDINO 364 U.S. 288 


NO. 137.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 175 CAL. APP. 2D 454, 459; 346 P.2D 454, 457. 


ANDREWS V. CITY OF SAN BERNARDINO ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















HYAM V. UPPER MONTGOMERY JOINT AUTHORITY 364 U.S. 288 


NO. 150.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 399 PA. 446, 160 A.2D 539. 


HYAM ET AL. V. UPPER MONTGOMERY JOINT AUTHORITY ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















DUNSCOMBE V. SAYLE 364 U.S. 289 


NO. 163.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


DUNSCOMBE V. SAYLE, ADMINISTRATOR. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















STATE TAX COMMISSION OF ARIZONA V. MURRAY COMPANY OF TEXAS, INC. 364
U.S. 289 


NO. 168.  DECIDED OCTOBER 10, 1960 - REPORTED BELOW:  87 ARIZ. 268, 350
P.2D 674. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED FOR
CLARIFICATION. 

STATE TAX COMMISSION OF ARIZONA V. MURRAY COMPANY OF TEXAS, INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED FOR CLARIFICATION.  MINNESOTA V.
NATIONAL TEA CO., 309 U.S. 551. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :









TENNESSEE GAS TRANSMISSION CO. V. MISSISSIPPI STATE TAX COMMISSION 364
U.S. 290 


NO. 223.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  239 MISS.  191, 116
SO. 2D 550. 


TENNESSEE GAS TRANSMISSION CO. V. MISSISSIPPI STATE TAX COMM'N. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















ATLANTA NEWSPAPERS, INC. V. GRIMES 364 U.S. 290 


NO. 237.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  216 GA. 74, 114 S.E.2D 421. 


ATLANTA NEWSPAPERS, INC., ET AL. V. GRIMES, SHERIFF, ET AL. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  RESCUE ARMY V. MUNICIPAL COURT OF LOS
ANGELES, 331 U.S. 549.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















FORD V. ATTORNEY GENERAL OF PENNSYLVANIA 364 U.S. 291 


NO. 255.  DECIDED OCTOBER 10, 1960 - 184 F. SUPP. 129, AFFIRMED. 


FORD V. ATTORNEY GENERAL OF PENNSYLVANIA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















VAUGHN V. OHIO 364 U.S. 291 


NO. 24, MISC.  DECIDED OCTOBER 10, 1960 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 170 OHIO ST. 360, 164 N.E.2D 739. 


VAUGHN V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















CLINTON V. JOSHUA HENDY CORP. 364 U.S. 292 


NO. 59, MISC.  DECIDED OCTOBER 10, 1960 - REPORTED BELOW:  277 F.2D
447. 


CLINTON V. JOSHUA HENDY CORP. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :

















CEPERO V. PUERTO RICO 364 U.S. 292 


NO. 98, MISC.  DECIDED OCTOBER 10, 1960. 


CEPERO V. PUERTO RICO ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















WACHTEL V. NEW YORK 364 U.S. 292 


NO. 144, MISC.  DECIDED OCTOBER 10, 1960. 


WACHTEL V. NEW YORK. 

APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK,
SECOND JUDICIAL DEPARTMENT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















AMERICAN TRUCKING ASSOCIATIONS V. UNITED STATES 364 U.S. 1 


NO. 74.  ARGUED MAY 19, 1960 - DECIDED JUNE 27, 1960 - 170 F. SUPP. 38,
REVERSED. 


1.  IN THIS PROCEEDING UNDER SEC. 209(B) OF THE INTERSTATE COMMERCE
ACT, THE COMMISSION EXCEEDED ITS STUATUTORY AUTHORITY BY GRANTING TO A
MOTOR CARRIER SUBSIDIARY OF A RAILROAD PERMITS TO ACT AS A CONTRACT
CARRIER FOR A SINGLE SHIPPER FROM POINTS ON THE RAILROAD'S LINE IN
CALIFORNIA TO POINTS ON ITS LINE IN CERTAIN OTHER STATES, SINCE THE
COMMISSION NEITHER (1) IMPOSED CONDITIONS UPON THE PERMITS SUFFICIENT
TO ASSURE THAT THE SERVICE TO BE RENDERED WOULD BE TRULY AUXILIARY TO,
AND SUPPLEMENTAL OF, THE RAIL SERVICE, NOR (2) MADE FINDINGS SUFFICIENT
TO ESTABLISH THE EXISTENCE OF "SPECIAL CIRCUMSTANCES" JUSTIFYING THE
WAIVER OF SUCH RESTRICTIONS.  PP. 3-15. 

(A)  THE GENERAL POLICY UNDER SEC. 5(2)(B) AND THE NATIONAL
TRANSPORTATION POLICY OF RESTRICTING THE SERVICES OF MOTOR CARRIER
SUBSIDIARIES OF RAILROADS TO THOSE WHICH ARE AUXILIARY TO, OR
SUPPLEMENTAL OF, THE PARENT RAILROAD'S SERVICES IS APPLICABLE TO
PERMITS UNDER SEC. 209(B).  PP. 6-7. 

(B)  IF A TRUCKING SERVICE CAN FAIRLY BE CHARACTERIZED AS AUXILIARY
TO, OR SUPPLEMENTAL OF, TRAIN SERVICE, THERE IS COMPLIANCE WITH THE
MANDATE OF SEC. 5(2)(B) THAT THE RAILROAD SHOULD BE ABLE TO "USE
SERVICE BY MOTOR VEHICLE TO PUBLIC ADVANTAGE IN ITS OPERATIONS"; BUT,
IF THE MOTOR TRANSPORTATION IS ESSENTIALLY UNRELATED TO THE RAIL
SERVICE, THE PARENT RAILROAD IS INVADING THE FIELD OF TRUCKING, AND,
UNDER NORMAL CIRCUMSTANCES, THE NATIONAL TRANSPORTATION POLICY IS
THEREBY OFFENDED.  PP. 7-9. 

(C)  WHEN THERE ARE "SPECIAL CIRCUMSTANCES" SUFFICIENT TO JUSTIFY
SUCH ACTION IN THE PUBLIC INTEREST, HOWEVER, THE COMMISSION MAY
SOMETIMES REFRAIN FROM IMPOSING THE CONDITION THAT THE TRUCKING SERVICE
BE AUXILIARY TO, OR SUPPLEMENTAL OF, THE RAIL SERVICE.  AMERICAN
TRUCKING ASSOCIATIONS V. UNITED STATES, 355 U.S. 141.  PP. 10-11. 

(D)  THE CONDITIONS IMPOSED UPON THE PERMITS IN THIS CASE WERE NOT
SUFFICIENT TO RESTRICT THE MOTOR CARRIER TO OPERATIONS TRULY AUXILIARY
TO, OR SUPPLEMENTAL OF, THE RAIL SERVICE.  PP. 11-13. 

(E)  THE COMMISSION'S FINDINGS IN THIS CASE WERE NOT SUFFICIENT TO
ESTABLISH THE EXISTENCE OF "SPECIAL CIRCUMSTANCES" JUSTIFYING THE
WAIVER OF SUCH RESTRICTIONS.  PP. 13-15. 

2.  INSOFAR AS IT PERTAINS TO THE PERMITS TO SERVE POINTS ON THE
RAILROAD'S LINES, THE JUDGMENT OF THE DISTRICT COURT DENYING RELIEF IS
REVERSED, AND THE CASE IS REMANDED TO THE COMMISSION FOR SUCH FURTHER
PROCEEDINGS, NOT INCONSISTENT WITH THIS OPINION, AS MAY BE
APPROPRIATE.  PP. 15-17. 

3.  THE REVERSAL AND REMAND, HOWEVER, DO NOT APPLY TO THE
COMMISSION'S GRANT OF AUTHORITY TO PROVIDE CONTRACT CARRIER SERVICE TO
THREE NONRAIL POINTS IN NEVADA.  P. 17. 

4.  APPELLANTS, SIX MOTOR CARRIERS AND THREE ASSOCIATIONS OF MOTOR
CARRIERS, HAD STANDING TO MAINTAIN THEIR ACTION TO SET ASIDE THE
COMMISSION'S ORDER, UNDER THE "PARTY IN INTEREST" CRITERION OF SEC.
205(G) OF THE INTERSTATE COMMERCE ACT AND UNDER THE "PERSON SUFFERING
LEGAL WRONG  ...  OR ADVERSELY AFFECTED OR AGGRIEVED" CRITERION OF SEC.
10(A) OF THE ADMINISTRATIVE PROCEDURE ACT.  PP. 17-18. 

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION PRESENTED ON THIS APPEAL IS WHETHER THE
APPELLEE INTERSTATE COMMERCE COMMISSION PROPERLY DECLINED TO IMPOSE
CERTAIN RESTRICTIONS UPON MOTOR CARRIER PERMITS IT ISSUED TO A TRUCKING
COMPANY WHICH IS A SUBSIDIARY OF A RAILROAD. 

THE PERMITS IN QUESTION ARE DESIGNED TO ALLOW APPELLEE PACIFIC MOTOR
TRUCKING COMPANY, A WHOLLY OWNED SUBSIDIARY OF SOUTHERN PACIFIC
COMPANY, TO PERFORM A PARTICULAR TYPE OF TRANSPORTATION SERVICE FOR
APPELLEE GENERAL MOTORS CORPORATION.  PRIOR TO ISSUANCE OF THESE
PERMITS, PACIFIC MOTOR ALREADY HAD BEEN AUTHORIZED TO CONDUCT CERTAIN
TRUCKING ACTIVITIES IN A NUMBER OF STATES INTO WHICH SOUTHERN PACIFIC'S
EXTENSIVE RAILWAY SYSTEM PENETRATES.  WITHOUT ADVERTING TO IMMATERIAL
DETAILS, THAT AUTHORITY MAY BE DESCRIBED AS FOLLOWS:  PACIFIC MOTOR
HELD COMMON CARRIER CERTIFICATES FROM THE COMMISSION FOR THE
TRANSPORTATION OF COMMODITIES, BY WAY OF SERVICE AUXILIARY TO AND
SUPPLEMENTAL OF SOUTHERN PACIFIC RAIL SERVICE, OVER ROUTES PARALLELING
SOUTHERN PACIFIC LINES IN OREGON, CALIFORNIA, NEVADA, ARIZONA, NEW
MEXICO, AND TEXAS.  IT ALSO HELD CONTRACT CARRIER AUTHORITY FROM THE
STATE OF CALIFORNIA FOR INTRASTATE TRANSPORTATION OF TRUCKS AND
AUTOMOBILES.  FINALLY, IT HAD BEEN GRANTED CONTRACT CARRIER PERMITS BY
THE COMMISSION FOR THE TRANSPORTATION OF AUTOMOBILES, TRUCKS, AND BUSES
FROM CERTAIN POINTS IN CALIFORNIA TO THREE NONRAIL POINTS IN NEVADA, TO
TWO POINTS ON THE MEXICAN BORDER, TO CERTAIN POINTS IN LOS ANGELES
HARBOR, AND TO POINTS IN NEVADA LOCATED ON THE SOUTHERN PACIFIC LINE. 
THESE LATTER CONTRACT CARRIER PERMITS DID NOT CONTAIN RESTRICTIONS
DESIGNED TO MAKE THE SERVICE AUXILIARY TO AND SUPPLEMENTAL OF SOUTHERN
PACIFIC RAIL SERVICE.  PACIFIC MOTOR'S ONLY CONTRACT CARRIER SHIPPER
HAS BEEN GENERAL MOTORS. 

BY THE FOUR APPLICATIONS WHICH GAVE RISE TO THE PRESENT CONTROVERSY,
PACIFIC MOTOR SOUGHT TO EXTEND THE SCOPE OF ITS CONTRACT CARRIER
SERVICE FOR GENERAL MOTORS.  IT REQUESTED AUTHORIZATION FROM THE
COMMISSION FOR THE TRANSPORTATION OF NEW AUTOMOTIVE EQUIPMENT FROM
PLANTS OF GENERAL MOTORS AT OAKLAND, RAYMER, AND SOUTH GATE,
CALIFORNIA, TO VARIOUS INTERSTATE DESTINATIONS NOT INCLUDED WITHIN ITS
PRIOR PERMITS.  GENERALLY SPEAKING, THE FIRST APPLICATION, DESIGNATED
SUB 34, COVERED CONTRACT CARRIER SERVICE FROM THE OAKLAND PLANTS TO
POINTS ON THE SOUTHERN PACIFIC LINE IN OREGON; THE SECOND, SUB 35,
COVERED SIMILAR SERVICE TO THREE NEVADA NONRAIL POINTS; THE THIRD, SUB
36, COVERED TRANSPORTATION FROM THE RAYMER PLANT TO POINTS IN ARIZONA
WHICH ARE STATIONS ON THE SOUTHERN PACIFIC LINE; AND THE LAST - AND
BROADEST - APPLICATION, SUB 37, COVERED TRANSPORTATION FROM THE
OAKLAND, RAYMER, AND SOUTH GATE PLANTS TO POINTS IN SEVEN STATES,
WHETHER OR NOT ON THE SOUTHERN PACIFIC LINE.  (FN1) 

THE COMMISSION PROCEEDINGS RESULTED IN THE GRANT OF SOME, BUT NOT
ALL, OF THE REQUESTED AUTHORITY.   ON MAY 8, 1957, THE COMMISSION ACTED
FAVORABLY ON THE SUB 34 APPLICATION.  71 M.C.C. 561.  HOWEVER, THE
COMMISSION THEREAFTER CONSOLIDATED THE FOUR APPLICATIONS AND HEARD ORAL
ARGUMENT.  ON SEPTEMBER 9, 1958, THE COMMISSION ISSUED ITS FINAL
REPORT, 77 M.C.C. 605, WHICH MAY BE DESCRIBED SPECIFICALLY ENOUGH FOR
OUR PURPOSES AS AUTHORIZING TRANSPORTATION BY PACIFIC MOTOR TO THE
THREE ADDITIONAL NEVADA NONRAIL POINTS AND TO POINTS ON THE SOUTHERN
PACIFIC LINE IN NEVADA, UTAH, ARIZONA, OREGON, AND NEW MEXICO.  (FN2)
OTHERWISE, THE APPLICATIONS WERE DENIED.  THERE WERE CERTAIN OTHER
CONDITIONS IMPOSED BY THE COMMISSION, WHICH WE WILL DETAIL LATER, BUT
THE MAJOR RESTRICTION WAS THE LIMITATION OF POINTS OF DESTINATION TO
POINTS ON THE SOUTHERN PACIFIC LINE. 

APPELLANTS - AMERICAN TRUCKING ASSOCIATIONS, INC., ITS CONTRACT
CARRIER CONFERENCE, THE NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION,
AND SIX MOTOR CARRIERS - BROUGHT SUIT IN FEDERAL DISTRICT COURT TO SET
ASIDE THE COMMISSION'S ORDER.  SEE 28 U.S.C.  SEC. 1336.  APPELLEES
PACIFIC MOTOR AND GENERAL MOTORS INTERVENED IN SUPPORT OF THE ORDER. 
THE UNITED STATES WAS NAMED A PARTY DEFENDANT, TOGETHER WITH THE
INTERSTATE COMMERCE COMMISSION, BUT DID NOT EITHER PARTICIPATE IN OR
OPPOSE THE DEFENSE.  SEE 28 U.S.C. SEC. 2323.  A THREE-JUDGE COURT,
WHICH WAS CONVENED PURSUANT TO 28 U.S.C.  SECS. 2325 AND 2284, DENIED
RELIEF.  170 F. SUPP. 38.  OUR APPELLATE JURISDICTION WAS INVOKED UNDER
28 U.S.C. SEC. 1253, AND WE NOTED PROBABLE JURISDICTION.  361 U.S.
806.  IN THIS COURT, THE COMMISSION OPPOSES AND THE UNITED STATES
SUPPORTS THE APPELLANTS. 

THERE IS A PRELIMINARY CHALLENGE BY PACIFIC MOTOR AND GENERAL MOTORS
TO APPELLANTS' STANDING, A CHALLENGE WHICH WAS SUSTAINED BY TWO MEMBERS
OF THE LOWER COURT.  WE DISAGREE WITH THIS HOLDING.  SINCE THE BASIS
FOR OUR VIEW ON THE PROBLEM OF STANDING WILL BE MORE READILY
APPRECIATED AFTER THE MERITS OF THE CASE HAVE BEEN FULLY TREATED, WE
POSTPONE OUR DISCUSSION OF THIS MATTER. 

THE CRITICAL ISSUE RAISED BY APPELLANTS IS WHETHER THE COMMISSION
EXCEEDED ITS STATUTORY AUTHORITY BY GRANTING THE PERMITS IN QUESTION TO
A RAILROAD SUBSIDIARY WITHOUT IMPOSING MORE STRINGENT LIMITATIONS THAN
IT DID.  ON THIS QUESTION, THE LOWER COURT UNANIMOUSLY RULED AGAINST
APPELLANTS.  THIS JUDGMENT MUST BE EVALUATED IN THE LIGHT OF THIS
COURT'S PREVIOUS DECISIONS, SET AGAINST THE BACKGROUND OF COMMISSION
PRACTICE. 

BOTH THE COMMISSION AND THIS COURT HAVE RECOGNIZED THAT CONGRESS HAS
EXPRESSED A STRONG GENERAL POLICY AGAINST RAILROAD INVASION OF THE
MOTOR CARRIER FIELD.  THIS POLICY IS EVINCED IN A GENERAL WAY IN THE
PREAMBLE TO THE 1940 AMENDMENTS TO THE INTERSTATE COMMERCE ACT - THE
NATIONAL TRANSPORTATION POLICY, 54 STAT. 899 - WHICH ARTICULATES THE
CONGRESSIONAL PURPOSE THAT THE ACT BE "SO ADMINISTERED AS TO RECOGNIZE
AND PRESERVE THE INHERENT ADVANTAGES" OF "ALL MODES OF
TRANSPORTATION."  MORE PARTICULARLY, CONGRESS' ATTITUDE IS REFLECTED BY
A PROVISO TO SEC. 5(2)(B) OF THE ACT, (FN3) WHICH ENJOINS THE
COMMISSION TO WITHHOLD APPROVAL OF AN ACQUISITION BY A RAILROAD OF A
MOTOR CARRIER "UNLESS IT FINDS THAT THE TRANSACTION PROPOSED WILL BE
CONSISTENT WITH THE PUBLIC INTEREST AND WILL ENABLE SUCH CARRIER TO USE
SERVICE BY MOTOR VEHICLE TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL
NOT UNDULY RESTRAIN COMPETITION." 

THE COMMISSION LONG AGO CONCLUDED THAT THE POLICY OF THE
TRANSPORTATION LEGISLATION REQUIRES THAT THE STANDARDS OF SEC. 5(2)(B)
THEN SEC. 213(A) OF THE MOTOR CARRIER ACT OF 1935, 49 STAT. 555 - BE
FOLLOWED AS A GENERAL RULE IN OTHER SITUATIONS, NOTABLY IN APPLICATIONS
FOR COMMON CARRIER CERTIFICATES OF CONVENIENCE AND NECESSITY UNDER SEC.
207.  (FN4)  KANSAS CITY SOUTHERN TRANSPORT CO., COMMON CARRIER
APPLICATION, 10 M.C.C.  221 (1938).  AND THIS COURT HAS CONFIRMED THE
CORRECTNESS OF THE COMMISSION'S CONCEPTION OF ITS RESPONSIBILITIES
UNDER BOTH SEC. 5(2)(B) AND SEC. 207.  SEE UNITED STATES V. ROCK ISLAND
MOTOR TRANSIT CO., 340 U.S. 419; UNITED STATES V. TEXAS & PACIFIC MOTOR
TRANSPORT CO., 340 U.S. 450; INTERSTATE COMMERCE COMM'N V. PARKER, 326
U.S. 60.  THE COURT HAS ALSO TAKEN COGNIZANCE OF THE CONGRESSIONAL
CONFIRMATION OF THE COMMISSION'S POLICY BY THE 1940 RE-ENACTMENT IN
SEC. 5(2)(B) OF THE PROVISIONS OF SEC. 213(A), AFTER SOME OF THE
PERTINENT COMMISSION DECISIONS HAD BEEN SPECIFICALLY CALLED TO
CONGRESS' ATTENTION.  SEE UNITED STATES V. ROCK ISLAND MOTOR TRANSIT
CO., SUPRA, AT 432.  AND ALTHOUGH THE INSTANT PROCEEDING INVOLVES
CONTRACT CARRIER APPLICATIONS AND HENCE FALLS UNDER SEC. 209, (FN5) THE
COMMISSION IN ITS OPINION RECOGNIZED THAT, FOR PURPOSES OF THE
RELEVANCE OF THE SEC. 5(2)(B) STANDARDS, THERE IS NO DISTINCTION
BETWEEN THIS TYPE OF CASE AND PROCEEDINGS ARISING UNDER SEC. 207.  77
M.C.C. 621-622.  NOR CAN WE DISCERN ANY GROUNDS FOR DIFFERENTIATION. 

THUS IT IS EVIDENT THAT THE POLICY OF OPPOSITION TO RAILROAD
INCURSIONS INTO THE FIELD OF MOTOR CARRIER SERVICE HAS BECOME FIRMLY
ENTRENCHED AS A PART OF OUR TRANSPORTATION LAW.  MOREOVER, THIS GENERAL
POLICY FORTUNATELY HAS NOT BEEN IMPLEMENTED MERELY BY WAY OF A MORE OR
LESS UNGUIDED SUSPICION OF RAILROAD SUBSIDIARIES, BUT RATHER HAS
EVOLVED THROUGH A SERIES OF COMMISSION DECISIONS FROM EMBRYONIC FORM
INTO A SET OF REASONABLY FIRM, CONCRETE STANDARDS.  (FN6)  THE
COMMISSION'S OPINION IN THE CASE AT BAR DESCRIBES THESE STANDARDS AS
FOLLOWS: 

"THE RESTRICTIONS USUALLY IMPOSED IN COMMON-CARRIER CERTIFICATES
ISSUED TO RAIL CARRIERS OR THEIR AFFILIATES IN ORDER TO INSURE THAT THE
SERVICE RENDERED THEREUNDER SHALL BE NO MORE THAN THAT WHICH IS
AUXILIARY TO OR SUPPLEMENTAL OF TRAIN SERVICE ARE:  (1) THE SERVICE BY
MOTOR VEHICLE TO BE PERFORMED BY RAIL CARRIER OR BY A RAIL-CONTROLLED
MOTOR SUBSIDIARY SHOULD BE LIMITED TO SERVICE WHICH IS AUXILIARY TO OR
SUPPLEMENTAL OF RAIL SERVICE, (2) APPLICANT SHALL NOT SERVE ANY POINT
NOT A STATION ON THE RAILROAD, (3) A KEY-POINT REQUIREMENT OR A
REQUIREMENT THAT SHIPMENTS TRANSPORTED BY MOTOR SHALL BE LIMITED TO
THOSE WHICH IT RECEIVES FROM OR DELIVERS TO THE RAILROAD UNDER A
THROUGH BILL OF LADING AT RAIL RATES COVERING, IN ADDITION TO THE
MOVEMENT BY APPLICANT, A PRIOR OR SUBSEQUENT MOVEMENT BY RAIL, (4) ALL
CONTRACTS BETWEEN THE RAIL CARRIER AND THE MOTOR CARRIER SHALL BE
REPORTED TO THE COMMISSION AND SHALL BE SUBJECT TO REVISION IF AND AS
THE COMMISSION FINDS IT TO BE NECESSARY IN ORDER THAT SUCH ARRANGEMENTS
SHALL BE FAIR AND EQUITABLE TO THE PARTIES, AND (5) SUCH FURTHER
SPECIFIC CONDITIONS AS THE COMMISSION, IN THE FUTURE, MAY FIND IT
NECESSARY TO IMPOSE IN ORDER TO INSURE THAT THE SERVICE SHALL BE
AUXILIARY TO, OR SUPPLEMENTAL OF, TRAIN SERVICE  ... ." 

THE KEY PHRASE IN THIS SUMMARY IS OBVIOUSLY "AUXILIARY TO OR
SUPPLEMENTAL OF TRAIN SERVICE."  IF A TRUCKING SERVICE CAN FAIRLY BE SO
CHARACTERIZED, IT IS CLEAR ENOUGH THAT THERE IS COMPLIANCE WITH THE
MANDATE OF SEC. 5(2)(B) THAT THE CARRIER SHOULD BE ABLE "TO USE SERVICE
BY MOTOR VEHICLE TO PUBLIC ADVANTAGE IN ITS OPERATIONS."  BUT IF, ON
THE OTHER HAND, THE MOTOR TRANSPORTATION IS ESSENTIALLY UNRELATED TO
RAIL SERVICE, THE RAILROAD PARENT IS INVADING THE FIELD OF TRUCKING,
AND, UNDER NORMAL CIRCUMSTANCES, THE NATIONAL TRANSPORTATION POLICY IS
THEREBY OFFENDED. 

IT IS THIS "AUXILIARY TO OR SUPPLEMENTAL OF" VERBALIZATION OF THE
POLICY OF SEC. 5(2)(B), AS APPLIED TO SEC. 207, THAT HAS FOUND FAVOR IN
THIS COURT.  SEE AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 355 U.S.
141; UNITED STATES V. ROCK ISLAND MOTOR TRANSIT CO., SUPRA; UNITED
STATES V. TEXAS & PACIFIC MOTOR TRANSPORT CO., SUPRA; INTERSTATE
COMMERCE COMM'N V. PARKER, SUPRA.  MOREOVER, WHILE THE COURT HAS NOT
SPECIFIED THE MORE PARTICULARIZED RESTRICTIONS WHICH IT MIGHT REGARD AS
ESSENTIAL CONSTITUENTS OF THE "AUXILIARY TO OR SUPPLEMENTAL OF"
CONCEPT, IT IS SIGNIFICANT THAT THE COURT IN ROCK ISLAND APPARENTLY
ACCEPTED THE COMMISSION'S VIEW THAT THE PHRASE IMPLIES A LIMITATION OF
FUNCTION, I.E., TYPE OF TRUCKING SERVICE, AND NOT MERELY A GEOGRAPHICAL
LIMITATION, I.E., PLACE WHERE THE SERVICE IS PERFORMED.  (FN7)  340
U.S., AT 436-444. 

BUT WHILE THE JUDICIAL AND ADMINISTRATIVE CURRENT HAS RUN STRONGLY IN
FAVOR OF AUXILIARY AND SUPPLEMENTAL RESTRICTIONS ON MOTOR CARRIER
SUBSIDIARIES OF RAILROADS, THE COMMISSION HAS DETERMINED, AND THIS
COURT HAS AGREED, THAT THE PUBLIC INTEREST MAY SOMETIMES BE PROMOTED BY
NOT IMPOSING SUCH LIMITATIONS.  A PRIME EXAMPLE IS AMERICAN TRUCKING
ASSNS.  V. UNITED STATES, SUPRA, WHERE THE TRUCKING SERVICE WAS NOT
BEING PERFORMED ADEQUATELY BY INDEPENDENT MOTOR CONCERNS.  WE THERE
OBSERVED THAT THE MANDATORY PROVISIONS OF SEC. 5(2)(B) DO NOT APPEAR IN
SEC. 207, AND APPROVED THE COMMISSION'S POLICY OF NOT ATTACHING
AUXILIARY AND SUPPLEMENTAL RESTRICTIONS WHERE "SPECIAL CIRCUMSTANCES"
PREVAIL.  WE CONCLUDED: 

"WE REPEAT  ...  THAT THE UNDERLYING POLICY OF SEC. 5(2)(B) MUST NOT
BE DIVORCED FROM PROCEEDINGS FOR NEW CERTIFICATES UNDER SEC. 207. 
INDEED, THE COMMISSION MUST TAKE 'COGNIZANCE' OF THE NATIONAL
TRANSPORTATION POLICY AND APPLY THE ACT 'AS A WHOLE.'  BUT  ...  WE DO
NOT BELIEVE THAT THE COMMISSION ACTS BEYOND ITS STATUTORY AUTHORITY
WHEN IN THE PUBLIC INTEREST IT OCCASIONALLY DEPARTS FROM THE AUXILIARY
AND SUPPLEMENTARY LIMITATIONS IN A SEC. 207 PROCEEDING."  355 U.S., AT
151-152. 

THESE, THEN, ARE THE GUIDING PRINCIPLES WHICH HAVE BEEN ESTABLISHED
BY WHAT HAS GONE BEFORE AND WHICH MARK THE RANGE OF OUR INQUIRY IN THIS
CASE.  SINCE, AS WE HAVE INDICATED, THE COMMISSION BELIEVES, AND WE
AGREE, THAT THERE IS NO RELEVANT DIFFERENCE BETWEEN A SEC.  207
PROCEEDING AND A SEC. 209 PROCEEDING SO FAR AS THE PROBLEM HERE
INVOLVED IS CONCERNED, THE DECISIVE QUESTIONS ARE: (1) DID THE
COMMISSION IMPOSE CONDITIONS UPON THE PERMITS ISSUED TO PACIFIC MOTOR
UNDER WHICH THE SERVICE TO BE RENDERED WOULD BE TRULY AUXILIARY TO AND
SUPPLEMENTAL OF SOUTHERN PACIFIC'S RAIL SERVICE?  (2) IF NOT, WAS THE
COMMISSION'S WAIVER OF SUCH RESTRICTIONS JUSTIFIED BY "SPECIAL
CIRCUMSTANCES"?    THE FIRST QUESTION NEED NOT DETAIN US LONG.  THE
PRINCIPAL PERMITS WERE QUALIFIED ONLY BY THE FOLLOWING CONDITIONS:  (1)
THE SERVICE WAS TO BE RESTRICTED TO POINTS WHICH ARE STATIONS ON THE
SOUTHERN PACIFIC LINE; (2) "THERE MAY FROM TIME TO TIME IN THE FUTURE
BE ATTACHED TO THE PERMITS ...  SUCH REASONABLE TERMS, CONDITIONS, AND
LIMITATIONS AS THE PUBLIC INTEREST AND NATIONAL TRANSPORTATION POLICY
MAY REQUIRE"; AND (3) PACIFIC MOTOR WAS TO REQUEST THE IMPOSITION OF
RESTRICTIONS UPON ITS OUTSTANDING CERTIFICATES WITH RESPECT TO THE
TRANSPORTATION OF AUTOMOBILES AND TRUCKS. 

THE LAST RESTRICTION WAS DESIGNED TO OBVIATE ANY DUAL OPERATION
PROBLEM UNDER SEC.  210, (FN8) AND IS NOT PERTINENT TO THE AUXILIARY
AND SUPPLEMENTAL STANDARD.  SEE 77 M.C.C., AT 624.  THE SECOND
CONDITION OBVIOUSLY IS NO RESTRICTION AT ALL ON PRESENT OPERATIONS, AND
HENCE CAN HARDLY BE SAID TO LIMIT THE TRUCKING TO AN AUXILIARY OR
SUPPLEMENTAL SERVICE.  WE SO RECOGNIZED IN AMERICAN TRUCKING
ASSOCIATIONS, WHERE THE CERTIFICATES CONTAINED A SIMILAR RESTRICTION. 
355 U.S., AT 154.  AND THE FIRST LIMITATION, UPON WHICH APPELLEES
PRINCIPALLY RELY, IS BUT A GEOGRAPHICAL, NOT A FUNCTIONAL,
RESTRICTION.  AS WE HAVE NOTED, ROCK ISLAND GIVES STRONG SUPPORT TO THE
VIEW THERE EXPRESSED BY THE COMMISSION THAT THE ESSENCE OF AUXILIARY
AND SUPPLEMENTAL LIMITATION IS FUNCTIONAL CONTROL.  WHILE IT MAY BE
TRUE, AS APPELLEES ARGUE, THAT SUCH A GEOGRAPHICAL LIMITATION IS A
NECESSARY INGREDIENT OF AN AUXILIARY AND SUPPLEMENTAL RESTRICTION, IT
DOES NOT BY ANY MEANS FOLLOW THAT THIS INGREDIENT MAKES THE WHOLE. 
MOREOVER, WE HAVE THE STRONGEST EVIDENCE THAT THE COMMISSION DID NOT
BELIEVE THAT IT DID, SINCE THE COMMISSION SPECIFICALLY REFRAINED FROM
IMPOSING THE MOST GENERAL, BUT OBVIOUSLY THE MOST SIGNIFICANT,
RESTRICTION - THAT "THE SERVICE BY MOTOR VEHICLE  ...  SHOULD BE
LIMITED TO SERVICE WHICH IS AUXILIARY TO OR SUPPLEMENTAL OF RAIL
SERVICE."  77 M.C.C., AT 622-623.  THE CONCLUSION SEEMS INESCAPABLE
THAT THE CONDITIONS IMPOSED UPON THE PERMITS TO PACIFIC MOTOR, THOUGH
UNDOUBTEDLY "RESTRICTIONS" IN A GENERAL SENSE, WERE NOT LIMITATIONS
SUFFICIENT TO HOLD PACIFIC MOTOR TO A TRULY AUXILIARY AND SUPPLEMENTAL
SERVICE. 

APPELLEES URGE THAT NONETHELESS THERE WERE "SPECIAL CIRCUMSTANCES"
WITHIN THE MEANING OF AMERICAN TRUCKING ASSOCIATIONS.  APPELLEES POINT
TO VARIOUS FINDINGS OF FACT BY THE COMMISSION, SUCH AS THE NEED OF
GENERAL MOTORS FOR A SERVICE OF THE TYPE HERE INVOLVED, PACIFIC MOTOR'S
EXPERIENCE AND QUALIFICATIONS, AND THE UNLIKELIHOOD THAT A SIGNIFICANT
AMOUNT OF TRAFFIC WOULD BE DIVERTED FROM RAIL TO MOTOR TRANSPORTATION
EVEN IF THE PERMITS WERE GRANTED.  THE DIFFICULTY WITH APPELLEES'
ARGUMENT IS THAT THE COMMISSION DID NOT FIND THAT CONSIDERATIONS OF
THIS NATURE CONSTITUTED "SPECIAL CIRCUMSTANCES" UNDER THE AMERICAN
TRUCKING ASSOCIATIONS RULE, BUT RATHER VIEWED THEM SIMPLY AS SUPPORTING
THE BASIC DETERMINATIONS WHICH IT WAS REQUIRED TO MAKE UNDER SEC.
209(B) IN ORDER TO ISSUE A CONTRACT CARRIER PERMIT TO ANY APPLICANT. 
(FN9)  AND NATURALLY WE SHOULD NOT SUBSTITUTE OUR JUDGMENT FOR THE
COMMISSION'S ON A MATTER LIKE THIS, FOR "THE GROUNDS UPON WHICH AN
ADMINISTRATIVE ORDER MUST BE JUDGED ARE THOSE UPON WHICH THE RECORD
DISCLOSES THAT ITS ACTION WAS BASED."  SECURITIES & EXCHANGE COMM'N V.
CHENERY CORP., 318 U.S. 80, 87. 

THE COMMISSION ASSIGNED BUT A SINGLE REASON FOR NOT IMPOSING THE
NORMAL RESTRICTIONS UPON THE PACIFIC MOTOR PERMITS:  TO DO SO WOULD
COMPEL PACIFIC MOTOR TO CONDUCT A COMMON CARRIER SERVICE.  APPELLEES
SUPPORT THIS DECISION UPON THE GROUND THAT THE COMMISSION IS WITHOUT
AUTHORITY UNDER SEC. 209(B) TO IMPOSE SUCH CHARACTER-DESTROYING
CONDITIONS UPON A CONTRACT CARRIER PERMIT.  (FN10)  WE NEED NOT
DETERMINE WHETHER THE COMMISSION POSSESSES THE POWER TO ATTACH SUCH
LIMITATIONS, OR, IN THE ALTERNATIVE, TO AWARD A COMMON CARRIER
CERTIFICATE, SINCE WE BELIEVE THAT, IN ANY EVENT, THE COMMISSION'S
REASON IS INSUFFICIENT JUSTIFICATION FOR ITS ACTION.  ASSUMING THAT THE
RESTRICTIONS WHICH WOULD LIMIT PACIFIC MOTOR'S OPERATIONS TO AN
AUXILIARY AND SUPPLEMENTAL SERVICE WOULD ALSO BE INCOMPATIBLE WITH A
CONTRACT CARRIER OPERATION, AND THAT THE COMMISSION WAS CONSEQUENTLY
POWERLESS TO IMPOSE THOSE RESTRICTIONS, THIS ALONE DOES NOT, IN OUR
VIEW, MEET THE "SPECIAL CIRCUMSTANCES" TEST.  THERE IS, FOR EXAMPLE, NO
FINDING THAT INDEPENDENT CONTRACT CARRIERS WERE UNABLE OR UNWILLING TO
PERFORM THE SAME TYPE OF SERVICE AS PACIFIC MOTOR.  IN SUCH A SITUATION
WE DO NOT BELIEVE THAT THE POLICY OF THE ACT ALLOWS THE COMMISSION TO
AUTHORIZE SERVICE BY PACIFIC MOTOR, LIMITED ONLY TO POINTS ON THE
SOUTHERN PACIFIC LINE, SIMPLY BECAUSE GENERAL MOTORS WANTS A CONTRACT
CARRIER OPERATION.  IF THAT DESIRE OF GENERAL MOTORS, IN COMBINATION
WITH THE POLICY OF THE ACT, DISABLES A RAILROAD SUBSIDIARY FROM
OBTAINING THE BUSINESS, THAT IS SIMPLY THE RESULT OF THE NATIONAL
TRANSPORTATION POLICY.  (FN11)  THIS CONSEQUENCE, WE BELIEVE, DOES NOT
MEET THE COMPELLING PUBLIC INTEREST STANDARD ESTABLISHED BY AMERICAN
TRUCKING ASSOCIATIONS.  A CONTRARY CONCLUSION WOULD OPEN THE DOOR TO
APPROVAL OF OVER-THE-ROAD CONTRACT TRUCKING BY RAILROAD SUBSIDIARIES TO
MOST, IF NOT VIRTUALLY ALL, MAJOR DESTINATIONS, AND HENCE WOULD GREATLY
ATTENUATE THE SAFEGUARDS WHICH HAVE BEEN PAINSTAKINGLY ERECTED TO
PREVENT RAILROAD DOMINATION OF TRUCKING.  APPELLEES SAY THAT THESE
SAFEGUARDS ARE NO LONGER NEEDED, BECAUSE INDEPENDENT TRUCKING IS NO
LONGER AN "INFANT INDUSTRY."  THIS IS AN IMMATERIAL ARGUMENT IN THIS
FORUM.  WE DO NOT CONDEMN THE WISDOM OF THE COMMISSION'S ACTION.  WE
SIMPLY SAY THAT THE TRANSPORTATION LEGISLATION DOES, AND THAT THE
PARDONING POWER IN THIS CASE BELONGS TO CONGRESS. 

THUS THE DECISION OF THE DISTRICT COURT MUST BE REVERSED, BECAUSE WE
CONCLUDE THAT THE COMMISSION FELL INTO ERROR OF LAW.  THE QUESTION THEN
ARISES WHETHER THERE SHOULD BE A REMAND WHICH PERMITS FURTHER
PROCEEDINGS.  APPELLANTS ARGUE THAT THERE SHOULD NOT BE, BECAUSE THE
COMMISSION, ACCORDING TO APPELLANTS, FOUND THAT THERE WERE NO SPECIAL
CIRCUMSTANCES ASIDE FROM THE ALLEGED IMPOSSIBILITY OF IMPOSING THE
USUAL RESTRICTIONS UPON A CONTRACT CARRIER.  IT IS TRUE THAT THE
COMMISSION BASED THE RAIL-POINT RESTRICTION UPON "THE ABSENCE OF ANY
SHOWING OF UNUSUAL CONDITIONS."  77 M.C.C., AT 623.  BUT WE CANNOT BE
CERTAIN THAT THE COMMISSION THEREBY INTENDED TO SAY THAT THERE WERE NO
SPECIAL CIRCUMSTANCES WITHIN THE MEANING OF THE AMERICAN TRUCKING
ASSOCIATIONS PRINCIPLE.  AS WE HAVE POINTED OUT, THE RAIL-POINT
RESTRICTION, STANDING ALONE, IS DIFFERENT IN KIND FROM LIMITATIONS
WHICH IMPOSE AN AUXILIARY AND SUPPLEMENTAL SERVICE.  CONSEQUENTLY, WE
CANNOT BE SURE THAT THE COMMISSION BELIEVES THE SAME SORT OF
CIRCUMSTANCES DETERMINE THE APPLICABILITY OF BOTH TYPES OF
RESTRICTIONS.  MOREOVER, THE COMMISSION'S DISCUSSION OF THIS POINT IS
OPEN TO THE INTERPRETATION THAT IT WAS REPEATING SOME OF ITS
CONCLUSIONS WITH RESPECT TO THE SEC. 209(B) STANDARDS, E.G., "THE
EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE SERVICES OF THE
PROTESTING CARRIERS."  SEE NOTE 9, SUPRA.  (FN12)  UNDER THESE
CIRCUMSTANCES, WE WOULD BE WARRANTED IN PRECLUDING FURTHER PROCEEDINGS
ONLY IF, BY AN INDEPENDENT SEARCH OF THE RECORD, WE WERE ABLE TO
CONCLUDE THAT, AS A MATTER OF LAW, THERE ARE NO FACTORS PRESENT WHICH
THE COMMISSION COULD HAVE REGARDED AS SPECIAL CIRCUMSTANCES.  ALTHOUGH
THE FINDINGS OF THE COMMISSION WHICH ARE REFLECTED IN ITS OPINION DO
NOT SEEM TO US TO COMPLY WITH THE AMERICAN TRUCKING ASSOCIATIONS
STANDARD, AS THE SILENCE OF THE COMMISSION SEEMS TO IMPLY, WE ARE
UNWILLING IN A COMPLICATED PROCEEDING OF THIS NATURE TO DEAL WITH THIS
PROBLEM AB INITIO OR TO SAY THAT THE COMMISSION COULD NOT HAVE MADE
ADDITIONAL FINDINGS ON THE BASIS OF THE EVIDENCE HAD IT BEEN AWARE THAT
THE GROUND ITS DECISION RESTED UPON WAS INSUFFICIENT.  CONSEQUENTLY,
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, WE BELIEVE THAT IT
SHOULD BE REMANDED TO THE COMMISSION SO THAT IT CAN APPLY WHAT WE HOLD
TO BE THE APPLICABLE PRINCIPLES IN SUCH FURTHER PROCEEDINGS AS IT MAY
FIND TO BE CONSISTENT WITH THIS OPINION. 

THE REVERSAL AND REMAND, HOWEVER, WILL NOT INCLUDE ONE ASPECT OF THE
COMMISSION'S ACTION - THE GRANT OF AUTHORITY TO PROVIDE A SERVICE TO
THREE NONRAIL POINTS IN NEVADA - WHICH IS NOT GOVERNED BY THE RATIONALE
OF OUR OPINION.  THIS SMALL SEGMENT OF THE CONTROVERSY HAS BEEN
SUBMERGED IN THE DISPUTE OVER THE MUCH BROADER PERMIT COVERING
TRANSPORTATION TO RAIL POINTS IN VARIOUS STATES.  IT IS OBVIOUS, OF
COURSE, THAT "SPECIAL CIRCUMSTANCES" WOULD HAVE TO BE PRESENT TO
JUSTIFY THIS NEVADA AWARD.  APPELLEES MAINTAIN THAT THERE WAS SUCH
JUSTIFICATION, AND APPELLANTS HAVE NOT ESTABLISHED THAT IT WAS
LACKING.  NOR DO WE PERCEIVE ANY OTHER REASON TO UPSET THIS AWARD. 
CONSEQUENTLY, WE AFFIRM WITH RESPECT TO THIS PARTICULAR PERMIT. 

THERE REMAINS ONLY THE QUESTION OF STANDING.  ALTHOUGH THE THREE
JUDGE COURT CONCLUDED THAT THE COMMISSION HAD NOT EXCEEDED ITS
AUTHORITY IN THIS CASE, TWO MEMBERS OF THE COURT ALSO BELIEVED THAT
"THERE WAS NO SHOWING OF ACTUAL OR ANTICIPATED DIRECT INJURY SUCH AS
WOULD ENTITLE THE APPELLANTS TO INSTITUTE THIS ACTION."  170 F. SUPP.,
AT 48.  IN SUPPORT OF THIS CONCLUSION, APPELLEES RELY PRINCIPALLY UPON
ATCHISON, T.&S.F.R. CO. V. UNITED STATES, 130 F. SUPP. 76, AFF'D PER
CURIAM, 350 U.S. 892.  THAT DECISION HELD THAT CERTAIN RAILROADS HAD NO
STANDING TO CHALLENGE A COMMISSION ORDER AUTHORIZING ACQUISITION BY ONE
MOTOR CARRIER OF OTHERS.  SINCE THE LOWER COURT IN ATCHISON STRESSED
THE FACT THAT THE COMMISSION THERE HAD NOT CREATED ANY ADDITIONAL MOTOR
CARRIER SERVICE, THE DECISION CLEARLY IS NOT IN POINT.  IN THE INSTANT
CASE, NOT ONLY HAS THE COMMISSION CREATED NEW OPERATING RIGHTS, BUT
THEY ARE RIGHTS IN WHICH APPELLANTS HAVE A STAKE.  AND SURELY THE
STATEMENT BY GENERAL MOTORS THAT IT WOULD NOT IN ANY EVENT GIVE THE
BUSINESS TO ANY APPELLANT CANNOT DEPRIVE APPELLANTS OF STANDING.  THE
INTERESTS OF THESE INDEPENDENTS CANNOT BE PLACED IN THE HANDS OF A
SHIPPER TO DO WITH AS IT SEES FIT THROUGH PREDICTIONS AS TO WHOM ITS
BUSINESS WILL OR WILL NOT GO. THE DECISION WE BELIEVE TO BE CONTROLLING
IS NOT ATCHISON, BUT RATHER ALTON R. CO. V. UNITED STATES, 315 U.S. 15,
WHERE THE COURT CONFIRMED THE STANDING OF A RAILROAD TO CONTEST THE
AWARD OF A CERTIFICATE TO A COMPETING TRUCKER.  WE CONCLUDE, THEN, THAT
APPELLANTS HAD STANDING TO MAINTAIN THEIR ACTION TO SET ASIDE THE
COMMISSION'S ORDER UNDER THE "PARTY IN INTEREST" CRITERIA OF SEC.
205(G) OF THE INTERSTATE COMMERCE ACT, 49 STAT. 550, 49 U.S.C. SEC.
305(G), AND UNDER THE "PERSON SUFFERING LEGAL WRONG  ...  OR ADVERSELY
AFFECTED OR AGGRIEVED" CRITERION OF SEC. 10(A) OF THE ADMINISTRATIVE
PROCEDURE ACT, 60 STAT. 243, 5 U.S.C.  SEC. 1009(A). 

OUR DISPOSITION OF THE CASE MAKES IT UNNECESSARY TO CONSIDER THE
OTHER ISSUES RAISED BY APPELLANTS. 

WE HAVE NO DESIRE TO HAMPER THE COMMISSION IN THE DISCHARGE OF ITS
HEAVY RESPONSIBILITIES, AND WE HAVE ALWAYS RECOGNIZED THAT THE
COMMISSION HAS BEEN GIVEN A WIDE DISCRETION BY CONGRESS.  BUT THAT
DISCRETION HAS LIMITS; OUR DECISION IN FAVOR OF THE COMMISSION IN
AMERICAN TRUCKING ASSOCIATIONS ESTABLISHED THE LIMITS RELEVANT TO THIS
CASE; AND WE CONCLUDE THAT THOSE LIMITS HAVE BEEN TRANSGRESSED.  OF
COURSE, IN REMANDING THE CASE WE DO NOT INTEND TO CIRCUMSCRIBE THE
COMMISSION IN DETERMINING WHETHER APPROPRIATE "SPECIAL CIRCUMSTANCES"
DO EXIST IN THIS INSTANCE WHICH WOULD TAKE THE CASE OUT OF THE
OTHERWISE CONVENTIONAL STANDARDS. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND TO THE COMMISSION FOR
SUCH FURTHER PROCEEDINGS, NOT INCONSISTENT WITH THIS OPINION, AS MAY BE
APPROPRIATE.  IT IS SO ORDERED. 

FN1  WITH RESPECT TO THE TRANSPORTATION FROM OAKLAND AND RAYMER, THE
STATES WERE WASHINGTON, OREGON, IDAHO, NEVADA, UTAH, ARIZONA, AND NEW
MEXICO.  THE PROPOSED TRANSPORTATION FROM SOUTH GATE WAS TO BE TO THE
SAME STATES, EXCLUDING NEW MEXICO BUT ADDING MONTANA. 

FN2  ONE COMMISSIONER WHO CONCURRED SAID THAT HE WOULD GIVE BROADER
AUTHORITY; THREE COMMISSIONERS DISSENTED FROM THE GRANT; AND OF THE
THREE COMMISSIONERS WHO DID NOT PARTICIPATE, ONE SAID THAT HE WOULD
HAVE JOINED THE DISSENTERS. 

FN3  54 STAT. 906, AS AMENDED, 49 U.S.C. SEC. 5(2)(B). 

FN4  49 STAT. 551, 49 U.S.C. SEC. 307. 

FN5  49 STAT. 552, AS AMENDED, 49 U.S.C. SEC. 309. 

FN6  THE FIRST MAJOR COMMISSION DECISION WAS RENDERED THE YEAR AFTER
ENACTMENT OF THE MOTOR CARRIER ACT OF 1935.  PENNSYLVANIA TRUCK LINES,
INC., ACQUISITION OF CONTROL OF BARKER MOTOR FREIGHT, INC., 1 M.C.C.
101.  IN REFUSING APPROVAL OF AN ACQUISITION UNLESS CERTAIN CONDITIONS
WERE MET, A DIVISION OF THE COMMISSION STATED: 

"  ...  WE ARE NOT CONVINCED THAT THE WAY TO MAINTAIN FOR THE FUTURE
HEALTHFUL COMPETITION BETWEEN RAIL AND TRUCK SERVICE IS TO GIVE THE
RAILROADS FREE OPPORTUNITY TO GO INTO THE KIND OF TRUCK SERVICE WHICH
IS STRICTLY COMPETITIVE WITH, RATHER THAN AUXILIARY TO, THEIR RAIL
OPERATIONS.  THE LANGUAGE OF SECTION 213  ...  IS EVIDENCE THAT
CONGRESS WAS NOT CONVINCED THAT THIS SHOULD BE DONE.  TRUCK SERVICE
WOULD NOT, IN OUR JUDGMENT, HAVE DEVELOPED TO THE EXTRAORDINARY EXTENT
TO WHICH IT HAS DEVELOPED IF IT HAD BEEN UNDER RAILROAD CONTROL. 
IMPROVEMENT IN THE PARTICULAR SERVICE NOW FURNISHED BY THE PARTNERSHIP
MIGHT FLOW FROM CONTROL BY THE RAILROAD, BUT THE QUESTION INVOLVED IS
BROADER THAN THAT AND CONCERNS THE FUTURE OF TRUCK SERVICE GENERALLY. 
THE FINANCIAL AND SOLICITING RESOURCES OF THE RAILROADS COULD EASILY BE
SO USED IN THIS FIELD THAT THE DEVELOPMENT OF INDEPENDENT SERVICE WOULD
BE GREATLY HAMPERED AND RESTRICTED, AND WITH ULTIMATE DISADVANTAGE TO
THE PUBLIC."  ID., AT 111-112.    THE DEVELOPMENT OF COMMISSION POLICY
IS TRACED IN DETAIL IN ROCK ISLAND MOTOR TRANSIT CO. - PURCHASE - WHITE
LINE MOTOR FREIGHT CO., 40 M.C.C. 457.  SEE ALSO THE SIMILAR AND
LENGTHY DISCUSSION IN UNITED STATES V. ROCK ISLAND CO., SUPRA, PASSIM. 

FN7  "THE COMMISSION ASSERTS THAT THE MEANING OF 'AUXILIARY AND
SUPPLEMENTAL'  ...  WAS NOT GEOGRAPHICAL  ...  . 

     *        *         *         *         * 

"WHAT WAS IN THE COMMISSION'S MIND AS TO THE MEANING OF AUXILIARY AND
SUPPLEMENTAL AT THE TIME IT ISSUED ITS CERTIFICATE, WE CANNOT BE SURE. 
AT PRESENT A MOTOR SERVICE IS AUXILIARY AND SUPPLEMENTAL TO RAIL
SERVICE, IN THE COMMISSION'S VIEW, WHEN THE RAILROAD-AFFILIATED MOTOR
CARRIER IN A SUBORDINATE CAPACITY AIDS THE RAILROAD IN ITS RAIL
OPERATIONS BY ENABLING THE RAILROAD TO GIVE BETTER SERVICE OR OPERATE
MORE CHEAPLY RATHER THAN INDEPENDENTLY COMPETING WITH OTHER MOTOR
CARRIERS  ...  .  THE COMMISSION HAS CONTINUALLY EVIDENCED  ...  ITS
INTENTION TO HAVE RAIL-OWNED MOTOR CARRIERS SERVE IN AUXILIARY AND
SUPPLEMENTAL CAPACITY TO THE RAILROADS. 

     *         *         *         *         * 

"THE COMMISSION HAS EXPRESSED ITS POLICY  ...  BY THE PHRASE, PERHAPS
TOO SUMMARY, AUXILIARY AND SUPPLEMENTAL.  THOUGH THE PHRASE IS
DIFFICULT TO DEFINE PRECISELY, ITS GENERAL CONTENT IS SET OUT IN TEXAS
& PACIFIC MOTOR TRANSPORT CO. APPLICATION, 41 M.C.C.  721, 726
(ESTABLISHING GENERALLY THE SAME CONDITIONS SET FORTH IN THE TEXT,
SUPRA, PP.  7-9)  ...  .  WHILE THE PRACTICE OF THE COMMISSION HAS
VARIED IN THE CONDITIONS IMPOSED, THE PURPOSE TO HAVE RAIL-CONNECTED
MOTOR CARRIERS ACT IN COORDINATION WITH TRAIN SERVICE HAS NOT  ...  ." 
340 U.S., AT 439, 442-443. 

SEE THE DETAILED DISCUSSION IN ROCK ISLAND MOTOR TRANSIT CO. -
PURCHASE - WHITE LINE MOTOR FREIGHT CO., 40 M.C.C. 457.  ("THERE  ...
APPEARS TO HAVE DEVELOPED A TENDENCY IN RAIL-MOTOR ACQUISITION
PROCEEDINGS TO TREAT THE BARKER CASE RESTRICTIONS AS GEOGRAPHICAL OR
TERRITORIAL ONLY IN THEIR INTENT RATHER THAN AS SUBSTANTIVE LIMITATIONS
UPON THE CHARACTER OF THE SERVICE WHICH MIGHT BE RENDERED BY A RAILROAD
OR ITS AFFILIATE UNDER ANY ACQUIRED RIGHT."  ID., AT 470.)  SEE ALSO
TEXAS & PACIFIC MOTOR TRANSPORT CO. COMMON CARRIER APPLICATION, SUPRA,
AT 726.  ("SINCE PETITIONER'S CERTIFICATES LIMIT THE SERVICE TO BE
PERFORMED TO THAT WHICH IS AUXILIARY TO OR SUPPLEMENTAL OF THE RAIL
SERVICE OF THE RAILWAY, IT IS WITHOUT AUTHORITY TO ENGAGE IN OPERATIONS
UNCONNECTED WITH THE RAIL SERVICE  ...  .  TO THE EXTENT PETITIONER IS
PERFORMING OR PARTICIPATING IN ALL-MOTOR MOVEMENTS ON THE BILLS OF
LADING OF A MOTOR CARRIER AND AT ALL-MOTOR RATES, IT IS PERFORMING A
MOTOR SERVICE IN COMPETITION WITH THE RAIL SERVICE AND THE SERVICE OF
EXISTING MOTOR CARRIERS; AND, TO THE EXTENT IT IS SUBSTITUTING RAIL
SERVICE FOR MOTOR-VEHICLE SERVICE, THE RAIL SERVICE IS AUXILIARY TO OR
SUPPLEMENTAL OF THE MOTOR-VEHICLE SERVICE RATHER THAN THE MOTOR-VEHICLE
SERVICE BEING AUXILIARY TO OR SUPPLEMENTAL OF RAIL SERVICE.") 

FN8  49 STAT. 554, AS AMENDED, 49 U.S.C. SEC. 310. 

FN9  SECTION 209(B) PROVIDES IN PERTINENT PART: 

"SUBJECT TO SECTION 310 OF THIS TITLE, A PERMIT SHALL BE ISSUED TO
ANY QUALIFIED APPLICANT THEREFOR AUTHORIZING IN WHOLE OR IN PART THE
OPERATIONS COVERED BY THE APPLICATION, IF IT APPEARS FROM THE
APPLICATIONS OR FROM ANY HEARING HELD THEREON, THAT THE APPLICANT IS
FIT, WILLING, AND ABLE PROPERLY TO PERFORM THE SERVICE OF A CONTRACT
CARRIER BY MOTOR VEHICLE, AND TO CONFORM TO THE PROVISIONS OF THIS
CHAPTER AND THE LAWFUL REQUIREMENTS, RULES, AND REGULATIONS OF THE
COMMISSION THEREUNDER, AND THAT THE PROPOSED OPERATION, TO THE EXTENT
AUTHORIZED BY THE PERMIT, WILL BE CONSISTENT WITH THE PUBLIC INTEREST
AND THE NATIONAL TRANSPORTATION POLICY DECLARED IN THE INTERSTATE
COMMERCE ACT; OTHERWISE SUCH APPLICATION SHALL BE DENIED.  IN
DETERMINING WHETHER ISSUANCE OF A PERMIT WILL BE CONSISTENT WITH THE
PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION POLICY DECLARED IN THE
INTERSTATE COMMERCE ACT, THE COMMISSION SHALL CONSIDER THE NUMBER OF
SHIPPERS TO BE SERVED BY THE APPLICANT, THE NATURE OF THE SERVICE
PROPOSED, THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE
SERVICES OF THE PROTESTING CARRIERS AND THE EFFECT WHICH DENYING THE
PERMIT WOULD HAVE UPON THE APPLICANT AND/OR ITS SHIPPER AND THE
CHANGING CHARACTER OF THAT SHIPPER'S REQUIREMENTS  ...  ." 

THE ITALICIZED PORTION WAS ADDED BY AN AMENDMENT OF AUGUST 22, 1957,
71 STAT. 411, WELL BEFORE THE COMMISSION'S DECISION OF SEPTEMBER 9,
1958.  CONSEQUENTLY, THE COMMISSION WAS REQUIRED TO APPLY THE NEW
STANDARDS.  ZIFFRIN, INC. V. UNITED STATES, 318 U.S. 73, 78. 

FN10  SECTION 209(B) PROVIDES IN PART THAT THE COMMISSION "SHALL
ATTACH TO THE PERMIT  ...  SUCH REASONABLE TERMS, CONDITIONS, AND
LIMITATIONS, CONSISTENT WITH THE CHARACTER OF THE HOLDER AS A CONTRACT
CARRIER  ...  AS MAY BE NECESSARY TO ASSURE THAT THE BUSINESS IS THAT
OF A CONTRACT CARRIER AND WITHIN THE SCOPE OF THE PERMIT, AND TO CARRY
OUT  ...  THE REQUIREMENTS ESTABLISHED BY THE COMMISSION UNSER SECTION
304(A)(2) AND (6) OF THIS TITLE  ...  ." 

FN11  "SUCH RESTRICTIONS HAMPER RAILROAD COMPANIES IN THE USE OF
THEIR PHYSICAL FACILITIES - STATIONS, TERMINALS, WAREHOUSES - THEIR
PERSONNEL AND THEIR CAPITAL IN THE DEVELOPMENT OF THEIR TRANSPORTATION
ENTERPRISES TO ENCOMPASS ALL OR AS MUCH OF MOTOR TRANSPORTATION AS THE
ROADS MAY DESIRE.  THE ANNOUNCED TRANSPORTATION POLICY OF CONGRESS DID
NOT PERMIT SUCH DEVELOPMENT."  UNITED STATES V. ROCK ISLAND MOTOR
TRANSIT CO., SUPRA, AT 443-444. 

FN12  THE RAIL-POINT LIMITATION APPEARS TO HAVE BEEN DESIGNED
PRIMARILY TO PREVENT ENCROACHMENT UPON THE BUSINESS OF COMPETING RAIL
CARRIERS.  VARIOUS RAILROADS OPPOSED THE GRANT OF AUTHORITY BEFORE THE
COMMISSION, BUT DID NOT JOIN IN THE FEDERAL COURT ACTION. 
..END :


















CONTINENTAL GRAIN CO. V. BARGE FBL-585.  364 U.S. 19 


NO. 229.  ARGUED APRIL 20, 1960 - DECIDED JUNE 27, 1960 - 268 F.2D 240,
AFFIRMED. 


WHILE A BARGE WAS BEING LOADED AT MEMPHIS, IT SANK WITH RESULTING
DAMAGE TO BOTH THE BARGE AND THE CARGO.  THE BARGE OWNER SUED THE CARGO
OWNER IN A TENNESSEE STATE COURT FOR DAMAGES ALLEGED TO HAVE RESULTED
FROM NEGLIGENCE IN LOADING IT, AND THAT CASE WAS REMOVED TO THE FEDERAL
DISTRICT COURT AT MEMPHIS.  THE CARGO OWNER THEN BROUGHT THIS ACTION IN
THE FEDERAL DISTRICT COURT AT NEW ORLEANS AGAINST THE BARGE AND ITS
OWNER, CLAIMING DAMAGES TO THE CARGO RESULTING FROM UNSEAWORTHINESS. 
THE BARGE OWNER THEN MOVED UNDER 28 U.S.C.  SEC. 1404(A) FOR TRANSFER
OF THIS CASE TO THE FEDERAL DISTRICT COURT AT MEMPHIS, ALLEGING THAT
SUCH TRANSFER WAS "NECESSARY FOR THE CONVENIENCE OF THE PARTIES AND
WITNESSES AND IN THE INTEREST OF JUSTICE."  FINDING THESE ALLEGATIONS
TO BE TRUE, THE DISTRICT COURT AT NEW ORLEANS TRANSFERRED THE CASE TO
THE DISTRICT COURT AT MEMPHIS.  HELD:  IT DID NOT ERR IN DOING SO.  PP.
20-27. 

(A)  INSOFAR AS THIS IS A "CIVIL ACTION" AGAINST THE BARGE OWNER, IT
CLEARLY WAS TRANSFERABLE TO THE DISTRICT COURT AT MEMPHIS, SINCE THE
PLAINTIFF COULD HAVE BROUGHT THIS ACTION IN THAT COURT.  HOFFMAN V.
BLASKI, 363 U.S. 335, DISTINGUISHED.  P. 22. 

(B)  TRANSFER OF THIS ACTION TO THE DISTRICT COURT AT MEMPHIS IS NOT
BARRED BY THE FACT THAT FICTIONALLY IT IS ALSO AN IN REM PROCEEDING
AGAINST THE BARGE ITSELF, WHICH WAS NOT WITHIN THE JURISDICTION OF THE
DISTRICT COURT AT MEMPHIS WHEN THIS ACTION WAS BROUGHT.  PP. 22-27. 

CONTINENTAL GRAIN CO. V. BARGE FBL-585 ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE SINGLE ISSUE PRESENTED FOR DECISION IN THIS CASE IS WHETHER THE
UNITED STATES DISTRICT COURT IN NEW ORLEANS, ACTING UNDER 28 U.S.C.
SEC. 1404(A), ERRED IN ORDERING THAT THIS ACTION FOR DAMAGES TO CARGO
FROM ALLEGED UNSEAWORTHINESS BE TRANSFERRED FOR TRIAL, "IN THE INTEREST
OF JUSTICE," TO THE UNITED STATES DISTRICT COURT AT MEMPHIS, TENNESSEE,
WHERE THE SINKING OF THE BARGE OCCURRED.  THE COURT OF APPEALS AFFIRMED
THE DISTRICT COURT'S TRANSFER ORDER.  268 F.2D 240.  WE GRANTED
CERTIORARI TO CONSIDER THIS IMPORTANT QUESTION.  361 U.S. 811. 

THE FACTS AND CIRCUMSTANCES ON WHICH THE DISTRICT COURT TRANSFERRED
THIS CASE ARE THESE.  BARGE FBL-585, A RESPONDENT HERE UNDER AN ANCIENT
ADMIRALTY FICTION, IS OWNED BY FEDERAL BARGE LINES, INC., THE OTHER
RESPONDENT.  AFTER THE BARGE WAS PARTIALLY LOADED BY PETITIONER,
CONTINENTAL GRAIN CO., WITH ITS SOYBEANS AT ITS WHARF IN MEMPHIS, THE
BARGE SANK, CAUSING DAMAGE BOTH TO THE BARGE AND TO THE SOYBEANS.  A
DISPUTE AROSE OVER WHAT CAUSED IT TO SINK.  THE BARGE OWNER, FEDERAL
BARGE LINES, INC., BROUGHT AN ACTION FOR DAMAGES IN A TENNESSEE STATE
COURT CHARGING THAT THE BARGE SANK BECAUSE THE CARGO OWNER, CONTINENTAL
GRAIN CO., HAD BEEN NEGLIGENT IN LOADING IT.  THE CARGO OWNER LATER
BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT IN NEW ORLEANS
AGAINST THE BARGE AND ITS OWNER, IN A SINGLE COMPLAINT, CHARGING THAT
THE VESSEL HAD SUNK BECAUSE OF ITS DEFECTS AND UNSEAWORTHINESS, AND
CLAIMING DAMAGES FOR INJURY TO THE CARGO.  IN THE MEANTIME THE DAMAGE
CASE AGAINST THE GRAIN COMPANY HAD BEEN REMOVED FROM THE TENNESSEE
STATE COURT TO THE UNITED STATES DISTRICT COURT AT MEMPHIS.  WHILE THE
LITIGATION ARISING OUT OF THIS SINGLE OCCURRENCE WAS IN THIS POSTURE IN
THE NEW ORLEANS AND MEMPHIS COURTS, THE BARGE-OWNER DEFENDANT, AT NEW
ORLEANS, FILED A MOTION AND ACCOMPANYING AFFIDAVITS UNDER SEC. 1404(A)
TO TRANSFER "THIS ACTION" TO THE UNITED STATES DISTRICT COURT AT
MEMPHIS ALLEGING THAT SUCH TRANSFER WAS "NECESSARY FOR THE CONVENIENCE
OF THE PARTIES AND WITNESSES AND IN THE INTEREST OF JUSTICE  ...  ." 
THIS FOLLOWED THE LANGUAGE OF SEC. 1404(A), WHICH 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." 

THE NEW ORLEANS DISTRICT COURT FOUND THAT THE ISSUE IN THE MEMPHIS
CASE: 

"THAT IS, THE CAUSE OF THE CASUALTY, IS PRECISELY THE ISSUE IN THE
CASE AT BAR.  THE CONVENIENCE OF THE GREAT MAJORITY OF WITNESSES IN
THIS CASE DICTATES THAT THIS CASE BE TRIED IN MEMPHIS.  THE EFFICIENT
ADMINISTRATION OF JUSTICE REQUIRES THAT THIS CLAIM FOR CARGO DAMAGE BE
TRIED BY THE SAME COURT WHICH IS TRYING THE CLAIM FOR HULL DAMAGE, BOTH
CLAIMS BEING BETWEEN THE SAME PARTIES, AND RELATE TO THE SAME
INCIDENT." 

THESE FINDINGS WERE WELL SUPPORTED BY EVIDENCE, WERE APPROVED BY THE
COURT OF APPEALS, ARE NOT CHALLENGED HERE, AND WE ACCEPT THEM.  THE
CASE, THEREFORE, IF TRIED IN NEW ORLEANS, WILL BRING ABOUT EXACTLY THE
KIND OF MISCHIEVOUS CONSEQUENCES AGAINST "THE INTEREST OF JUSTICE" THAT
SEC. 1404(A) WAS DESIGNED TO PREVENT, THAT IS, UNNECESSARY
INCONVENIENCE AND EXPENSE TO PARTIES, WITNESSES, AND THE PUBLIC. 

THE GRAIN COMPANY ARGUES THAT THIS FRUSTRATION OF THE BASIC PURPOSE
OF CONGRESS IN PASSING SEC. 1404(A) IS COMPELLED BY THE LANGUAGE OF THE
COURT TO ANY DISTRICT COURT OTHER THAN ONE "WHERE IT MIGHT HAVE BEEN
BROUGHT."  TWO WEEKS AGO THIS COURT DECIDED IN HOFFMAN V. BLASKI AND
SULLIVAN V. BEHIMER, 363 U.S. 335, THAT THIS LANGUAGE BARS TRANSFER OF
A "CIVIL ACTION" PROPERLY PENDING IN ONE DISTRICT COURT TO ANOTHER IN
WHICH THAT "CIVIL ACTION" COULD NOT HAVE BEEN BROUGHT BECAUSE THE
DEFENDANT LEGALLY COULD NOT HAVE BEEN SUBJECTED TO SUIT THERE AT THE
TIME WHEN THE CASE WAS ORIGINALLY FILED.  THOSE CASES INVOLVED
TRANSFERS IN WHICH THE PLAINTIFFS FILING THE SUITS WOULD HAVE HAD NO
RIGHT WHATEVER TO PROCEED ORIGINALLY AGAINST THE DEFENDANTS ON THE
"CIVIL ACTIONS" IN THE DISTRICT COURTS TO WHICH TRANSFER WAS SOUGHT
WITHOUT THE DEFENDANTS' CONSENT.  BUT IN THIS CASE THERE WAS ADMITTEDLY
A RIGHT ON THE PART OF THE GRAIN COMPANY TO SUBJECT THE OWNER OF THE
BARGE, WITH OR WITHOUT ITS CONCENT, TO A "CIVIL ACTION" IN MEMPHIS AT
THE TIME THE NEW ORLEANS ACTION WAS BROUGHT.  UNDER THESE CIRCUMSTANCES
IT WOULD PLAINLY VIOLATE THE EXPRESS COMMAND OF SEC. 1404(A), AS
CONSTRUED IN OUR TWO PRIOR CASES, TO REVERSE THE DISTRICT COURT'S
JUDGMENT ORDERING THIS SINGLE CIVIL ACTION TO BE TRANSFERRED TO
MEMPHIS, UNLESS TRANSFER IS BARRED BY THE JOINDER OF THE IN REM CLAIM
AGAINST THE BARGE WITH THE CLAIM AGAINST THE OWNER ITSELF.  THE GRAIN
COMPANY TAKES THIS VIEW OF THE EFFECT OF JOINDER, ARGUING THAT SINCE
THE BARGE WAS IN NEW ORLEANS WHEN THIS "CIVIL ACTION" WAS BROUGHT AND
THE ADMIRALTY IN REM CLAIM THEREFORE COULD NOT HAVE BEEN BROUGHT IN
MEMPHIS AT THAT TIME, THE ENTIRE CIVIL ACTION MUST REMAIN IN THE
INCONVENIENT NEW ORLEANS FORUM.  THIS VIEW IS REACHED BY LABELING THIS
SINGLE CIVIL ACTION AS TWO, ONE AGAINST THE BARGE AND ONE AGAINST THE
OWNER.  IT ASSERTS THIS VIEW DESPITE THE FACT THAT THE GRAIN COMPANY'S
SUIT AGAINST THE BARGE AND ITS SUIT AGAINST THE OWNER ARE IN THE SAME
COMPLAINT FOR THE LOSS OF THE SAME CARGO IN THE SAME SINKING OF THE
SAME BARGE PRODUCING THE SAME DAMAGES.  THE BASIS OF THIS VIEW THAT
THERE ARE TWO DISTINCT CIVIL ACTIONS FOR SEC. 1404(A) PURPOSES IS A
LONG-STANDING ADMIRALTY FICTION THAT A VESSEL MAY BE ASSUMED TO BE A
PERSON FOR THE PURPOSE OF FILING A LAWSUIT AND ENFORCING A JUDGMENT. 
(FN1) 

THE FICTION RELIED UPON HAS NOT BEEN WITHOUT ITS CRITICS EVEN IN THE
FIELD IT WAS DESIGNED TO SERVE.  IT HAS BEEN REFERRED TO AS "ARCHAIC,"
"AN ANIMISTIC SURVIVAL FROM REMOTE TIMES," "IRRATIONAL" AND
"ATAVISTIC."  (FN2)  PERHAPS THIS IS GOING TOO FAR SINCE THE FICTION IS
ONE THAT CERTAINLY HAD REAL CAUSE FOR ITS EXISTENCE IN ITS CONTEXT AND
IN THE DAY AND GENERATION IN WHICH IT WAS CREATED.  A PURPOSE OF THE
FICTION, AMONG OTHERS, HAS BEEN TO ALLOW ACTIONS AGAINST SHIPS WHERE A
PERSON OWNING THE SHIP COULD NOT BE REACHED, AND IT CAN BE VERY USEFUL
FOR THIS PURPOSE STILL.  WE ARE ASKED HERE, HOWEVER, TO TRANSPLANT THIS
ANCIENT SALT-WATER ADMIRALTY FICTION INTO THE DRY-LAND CONTEXT OF FORUM
NON CONVENIENS, WHERE ITS USEFULNESS AND POSSIBILITIES FOR GOOD ARE
QUESTIONABLE AT BEST.  IN FACT, THE FICTION APPEARS TO HAVE NO
RELEVANCE WHATEVER IN A DISTRICT COURT'S DETERMINATION OF WHERE A CASE
CAN MOST CONVENIENTLY BE TRIED.  A FICTION BORN TO PROVIDE CONVENIENT
FORUMS SHOULD NOT BE TRANSFERRED INTO A WEAPON TO DEFEAT THAT VERY
PURPOSE. 

THIS COURT HAS NOT HESITATED IN THE PAST TO REFUSE TO APPLY THIS SAME
ADMIRALTY FICTION IN A WAY THAT WOULD CUT DOWN, AS IT WOULD HERE, THE
SCOPE OF CONGRESSIONAL ENACTMENTS.  IN FACT, MR. JUSTICE BRADLEY,
SPEAKING FOR THE COURT, SAID AT ONE TIME, IN CONSTRUING A STATUTE WHICH
HAD LIMITED A SHIPOWNER'S LIABILITY BUT HAD FAILED TO REFER TO THE
"PERSONAL" LIABILITY OF THE VESSEL: 

"TO SAY THAT AN OWNER IS NOT LIABLE, BUT THAT HIS VESSEL IS LIABLE,
SEEMS TO US LIKE TALKING IN RIDDLES.  A MAN'S LIABILITY FOR A DEMAND
AGAINST HIM IS MEASURED BY THE AMOUNT OF THE PROPERTY THAT MAY BE TAKEN
FROM HIM TO SATISFY THAT DEMAND.  IN THE MATTER OF LIABILITY, A MAN AND
HIS PROPERTY CANNOT BE SEPARATED  ...  ."  THE CITY OF NORWICH, 118
U.S. 468, 503. 

FIFTY-SEVEN YEARS LATER THIS COURT WAS CONFRONTED WITH A SIMILAR
ARGUMENT ABOUT ANOTHER SECTION OF THE SAME STATUTE, AND AFTER REFERRING
TO THE ANALYSIS IN CITY OF NORWICH CONCLUDED: 

"THE RIDDLE AFTER MORE THAN HALF A CENTURY REPEATED TO US IN
DIFFERENT CONTEXT DOES NOT APPEAR TO US TO HAVE IMPROVED WITH AGE  ...
.  CONGRESS HAS SAID THAT THE OWNER SHALL NOT 'ANSWER FOR' THIS LOSS IN
QUESTION.  CLAIMANT SAYS THIS MEANS IN EFFECT THAT HE SHALL ANSWER ONLY
WITH HIS SHIP.  BUT THE OWNER WOULD NEVER ANSWER FOR A LOSS EXCEPT WITH
HIS PROPERTY, SINCE EXECUTION AGAINST THE BODY WAS NOT AT ANY TIME IN
LEGISLATIVE CONTEMPLATION.  THERE COULD BE NO PRACTICAL EXONERATION OF
THE OWNER THAT DID NOT AT THE SAME TIME EXEMPT HIS PROPERTY." 
CONSUMERS IMPORT CO. V. KABUSHIKI KAISHA KAWASAKI ZOSENJO, 320 U.S.
249, 253-254. 

WE FOLLOW THE COMMON-SENSE APPROACH OF THESE TWO CASES IN
INTERPRETING SEC. 1404(A).  FAILURE TO DO SO WOULD PRACTICALLY SCUTTLE
THE FORUM NON CONVENIENS STATUTE SO FAR AS ADMIRALTY ACTIONS ARE
CONCERNED.  ALL A PLAINTIFF WOULD NEED TO DO TO ESCAPE FROM IT ENTIRELY
WOULD BE TO BRING HIS ACTION AGAINST BOTH THE OWNER AND THE SHIP, AS
WAS DONE HERE.  THIS WOULD BE ALL THE MORE UNFORTUNATE SINCE COURTS
HAVE LONG RECOGNIZED "ADMIRALTY'S APPROACH TO DO JUSTICE WITH SLIGHT
REGARD TO FORMAL MATTERS," (FN3) AND, AS THIS COURT HAS RECENTLY
OBSERVED: 

"ADMIRALTY PRACTICE, WHICH HAS SERVED AS THE ORIGIN OF MUCH OF OUR
MODERN FEDERAL PROCEDURE, SHOULD NOT BE TIED TO THE MAST OF LEGAL
TECHNICALITIES IT HAS BEEN THE FORERUNNER IN ELIMINATING FROM OTHER
FEDERAL PRACTICES."  BRITISH TRANSPORT COMM'N V. UNITED STATES, 354
U.S. 129, 139. 

IT IS RELEVANT THAT THE LAW OF ADMIRALTY ITSELF IS UNCONCERNED ABOUT
THE TECHNICAL DISTINCTIONS BETWEEN IN REM AND IN PERSONAM ACTIONS FOR
PURPOSES OF TRANSFERRING ADMIRALTY ACTIONS FROM ONE COURT TO A MORE
CONVENIENT FORUM.  THIS COURT'S ADMIRALTY RULE 54, WHICH PRESCRIBES THE
PROCEDURES FOR OWNERS' LIMITING THEIR LIABILITY AFTER VESSELS HAVE BEEN
LIBELED, PROVIDES IN LANGUAGE BROADER THAN SEC. 1404(A):  "THE DISTRICT
COURT MAY, IN ITS DISCRETION, TRANSFER THE PROCEEDINGS TO ANY DISTRICT
FOR THE CONVENIENCE OF THE PARTIES."  AND IT MAY BE FURTHER OBSERVED
THAT COURTS HAVE NOT FELT THEMSELVES BOUND BY THIS FICTION WHEN
CONFRONTED WITH THE ARGUMENT THAT BECAUSE IN REM AND IN PERSONAM
ACTIONS INVOLVE DIFFERENT PARTIES, THEREFORE RES JUDICATA DOES NOT
APPLY FROM AN IN PERSONAM ACTION AGAINST HIS SHIP.  (FN4)  IT IS
INTERESTING IN THIS CONNECTION TO TAKE NOTE OF THE FACT THAT, ACCORDING
TO THE COURT OF APPEALS OPINION, THE CASE AT MEMPHIS HAS ALREADY BEEN
TRIED.  (FN5)  TO PERMIT A SITUATION IN WHICH TWO CASES INVOLVING
PRECISELY THE SAME ISSUES ARE SIMULTANEOUSLY PENDING IN DIFFERENT
DISTRICT COURTS LEADS TO THE WASTEFULNESS OF TIME, ENERGY AND MONEY
THAT SEC. 1404(A) WAS DESIGNED TO PREVENT.  MOREOVER, SUCH A SITUATION
IS CONDUCIVE TO A RACE OF DILIGENCE AMONG LITIGANTS FOR A TRIAL IN THE
DISTRICT COURT EACH PREFERS.  THESE ARE ADDITIONAL REASONS WHY SEC.
1404(A) SHOULD NOT BE MADE AMBIGUOUS BY THE IMPORTATION OF IRRELEVANT
FICTIONS. 

THE IDEA BEHIND SEC. 1404(A) IS THAT WHERE A "CIVIL ACTION" TO
VINDICATE A WRONG - HOWEVER BROUGHT IN A COURT - PRESENTS ISSUES AND
REQUIRES WITNESSES THAT MAKE ONE DISTRICT COURT MORE CONVENIENT THAN
ANOTHER, THE TRIAL JUDGE CAN, AFTER FINDINGS, TRANSFER THE WHOLE ACTION
TO THE MORE CONVENIENT COURT.  THAT SITUATION EXISTS HERE.  ALTHOUGH
THE ACTION IN NEW ORLEANS WAS TECHNICALLY BROUGHT AGAINST THE BARGE
ITSELF AS WELL AS ITS OWNER, THE OBVIOUS FACT IS THAT, WHATEVER OTHER
ADVANTAGES MAY RESULT, THIS IS AN ALTERNATIVE WAY OF BRINGING THE OWNER
INTO COURT.  AND ALTHOUGH ANY JUDGMENT FOR THE CARGO OWNER WILL BE
TECHNICALLY ENFORCEABLE AGAINST THE BARGE AS AN ENTITY AS WELL AS ITS
OWNER, THE PRACTICAL ECONOMIC FACT OF THE MATTER IS THAT THE MONEY PAID
IN SATISFACTION OF IT WILL HAVE TO COME OUT OF THE BARGE OWNER'S POCKET
- INCLUDING THE POSSIBILITY OF A LEVY UPON THE BARGE EVEN HAD THE CARGO
OWNER NOT PRAYED FOR "PERSONIFIED" IN REM RELIEF.  THE CRUCIAL ISSUES
ABOUT FAULT AND DAMAGES SUFFERED WERE IDENTICAL, WHETHER CONSIDERED AS
A CLAIM AGAINST THE SHIP OR ITS OWNER.  THE WITNESSES WERE IDENTICAL. 
THUS, WHILE TWO METHODS WERE INVOKED TO BRING THE OWNER INTO COURT AND
ENFORCE ANY JUDGMENT AGAINST IT, THE SUBSTANCE OF WHAT HAD TO BE DONE
TO ADJUDICATE THE RIGHTS OF THE PARTIES WAS NOT DIFFERENT AT ALL. 
TREATING BOTH METHODS FOR SEC. 1404(A) PURPOSES FOR WHAT THEY ARE IN A
CASE LIKE THIS - INSEPARABLE PARTS OF ONE SINGLE "CIVIL ACTION" -
MERELY PERMITS OR REQUIRES PARTIES TO TRY THEIR ISSUES IN A SINGLE
"CIVIL ACTION" IN A COURT WHERE IT "MIGHT HAVE BEEN BROUGHT."  TO
CONSTRUE SEC. 1404(A) THIS WAY MERELY CARRIES OUT ITS DESIGN TO PROTECT
LITIGANTS, WITNESSES AND THE PUBLIC AGAINST UNNECESSARY INCONVENIENCE
AND EXPENSE, NOT TO PROVIDE A SHELTER FOR IN REM ADMIRALTY PROCEEDINGS
IN COSTLY AND INCONVENIENT FORUMS. 

FOR THE REASONS STATED HERE THE JUDGMENT IS AFFIRMED. 

FN1  "A SHIP IS THE MOST LIVING OF INANIMATE THINGS.  SERVANTS
SOMETIMES SAY 'SHE' OF A CLOCK, BUT EVERY ONE GIVES A GENDER TO
VESSELS.  AND WE NEED NOT BE SURPRISED, THEREFORE, TO FIND A MODE OF
DEALING WHICH HAS SHOWN SUCH EXTRAORDINARY VITALITY IN THE CRIMINAL LAW
APPLIED WITH EVEN MORE STRIKING THOROUGHNESS IN THE ADMIRALTY.  IT IS
ONLY BY SUPPOSING THE SHIP TO HAVE BEEN TREATED AS IF ENDOWED WITH
PERSONALITY, THAT THE ARBITRARY SEEMING PECULIARITIES OF THE MARITIME
LAW CAN BE MADE INTELLIGIBLE, AND ON THAT SUPPOSITION THEY AT ONCE
BECOME CONSISTENT AND LOGICAL."  HOLMES, THE COMMON LAW (1881), 26-27. 
FN2  THE CARLOTTA, 48 F.2D 110, 112, 1931 AM. MAR. CAS. 742, 745
(C.A.2D CIR. 1931), QUOTED IN GILMORE AND BLACK, THE LAW OF ADMIRALTY
(1957), 508. 

FN3  POINT LANDING, INC., V. ALABAMA DRY DOCK & SHIPBUILDING CO., 261
F.2D 861, 866, 1959 AM. MAR. CAS. 148, 155 (C.A. 5TH CIR. 1958). 

FN4  SEE BURNS BROS. V. CENTRAL R. CO., 202 F.2D 910, 1953 AM. MAR.
CAS. 718 (C.A.2D CIR. 1953); SULLIVAN V. NITRATE PRODUCERS' S.S. CO.,
262 F. 371 (C.A.2D CIR. 1919); BAILEY V. SUNDBERG, 49 F. 583 (C.A.2D
CIR. 1892); GILMORE AND BLACK, THE LAW OF ADMIRALTY (1957), 507-509. 

FN5  268 F.2D 240, 242, N.2, 1959 A.M.C. 2158, 2160, N.2. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS. 

ALTHOUGH THIS CASE ALSO INVOLVES SOME NICE QUESTIONS OF ADMIRALTY
PROCEDURE, SINCE THE CLAIMANT BARGE OWNER HAS MOVED FOR TRANSFER AND
HAS AGREED TO "PAY ANY FINAL DECREE WHICH MAY BE RENDERED AGAINST" THE
BARGE, THE CONTROLLING CONSIDERATIONS FOR ME ARE THOSE SET FORTH IN MY
OPINION IN SULLIVAN V. BEHIMER, 363 U.S. 351.  ACCORDINGLY, I WOULD
AFFIRM THE JUDGMENT. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

I THINK THAT THIS CASE, IF ITS TRUE FACTS BE RECOGNIZED AND FACED, IS
CONTROLLED BY THE COURT'S OPINION IN HOFFMAN V. BLASKI AND SULLIVAN V.
BEHIMER, DECIDED JUST THE OTHER DAY, 363 U.S. 335.  I ALSO THINK THAT
THE COURT'S OPINION FAILS TO RECOGNIZE AND FACE THE CRUCIAL FACT - THAT
ONE OF THE TWO CLAIMS IN THIS "CIVIL ACTION" WAS BROUGHT IN REM AGAINST
THE BARGE, NOT AS AN ATTACHMENT OR "DEVICE" TO FORCE APPEARANCE OF THE
OWNER OR TO PROVIDE SECURITY FOR THE PAYMENT OF ANY IN PERSONAM
JUDGMENT WHICH MIGHT BE RECOVERED AGAINST THE OWNER, BUT AS A
PERSONIFIED "DEBTOR OR OFFENDING THING" AS THE SETTLED LAW AUTHORIZES
(FN1) - WHICH GIVES RISE TO THE PRINCIPAL QUESTION THAT PRODUCES MY
DISAGREEMENT.  INDEED, I THINK THE COURT'S OPINION ENDEAVORS TO SWEEP
THAT CRUCIAL FACT "UNDER THE RUG."  I WILL NOW UNDERTAKE TO MAKE A
PLAIN AND CHRONOLOGICAL STATEMENT OF THE SIMPLE FACTS. 

ON JULY 2, 1958, PETITIONER, CONTINENTAL GRAIN COMPANY, (FN2) BROUGHT
THIS LIBEL IN PERSONAM AGAINST FEDERAL BARGE LINES, INC., (FN3) AND IN
REM AGAINST BARGE FBL-585 ("BARGE"), IN AND ON THE ADMIRALTY SIDE OF
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA,
NEW ORLEANS DIVISION - WHERE THE BARGE THEN WAS, AND EVER SINCE HAS
BEEN, LOCATED - TO RECOVER DAMAGES IN THE SUM OF $90,000 TO
PETITIONER'S CARGO, CAUSED BY THE ALLEGED UNSEAWORTHINESS AND
CONSEQUENT PARTIAL SINKING OF THE BARGE WHILE BEING LOADED AT MEMPHIS,
TENNESSEE, ON NOVEMBER 6, 1957.  THE LIBEL PRAYED A DECREE AGAINST BOTH
FEDERAL BARGE LINES, INC., AND BARGE FBL-585, FOR THE CARGO DAMAGE;
THAT FEDERAL BARGE LINES, INC., BE CITED TO APPEAR AND ANSWER; THAT
PROCESS ISSUE AGAINST "BARGE FBL-585 AND THAT ALL PERSONS CLAIMING ANY
INTEREST IN SAID VESSEL BE CITED TO APPEAR AND ANSWER THIS LIBEL," AND
THAT "BARGE FBL-585 BE CONDEMNED AND SOLD TO PAY THE AMOUNT DUE
LIBELANT HEREIN." 

AFTER FEDERAL BARGE LINES, INC., WAS SERVED WITH PROCESS, AND AFTER
PROCESS HAD ISSUED AGAINST THE BARGE BUT BEFORE ACTUAL ARREST OF THE
BARGE THEREUNDER, FEDERAL BARGE LINES, INC., ON JULY 23, 1958,
DELIVERED ITS LETTER ADDRESSED TO PETITIONER, WHICH THE LATTER ACCEPTED
AND HAS ACTED ON, SAYING, IN PERTINENT PART, THAT:  "IN CONSIDERATION
OF YOUR NOT HAVING SEIZED THE BARGE, UNDER THE IN REM PROCESS WHICH HAS
BEEN ISSUED  ...  AND IN FURTHER CONSIDERATION OF OUR NOT BEING
REQUIRED TO POST THE USUSAL BOND FOR THE RELEASE OF THAT VESSEL, WE
AGREE THAT WE SHALL  ...  FILE CLAIM TO BARGE FBL 585 AND SHALL FILE
PLEADINGS IN THE  ...  ACTION, AND THAT, WHETHER THE VESSEL BE LOST OR
NOT, WE SHALL PAY ANY FINAL DECREE WHICH MAY BE RENDERED AGAINST SAID
VESSEL IN SAID PROCEEDING."  THE LAST PARAGRAPH OF THE LETTER SAID: 

"IT IS THE INTENT OF THIS UNDERTAKING THAT THE RIGHTS OF THE LIBELANT
AND CLAIMANT-RESPONDENT IN THIS PROCEEDING SHALL BE, AND FOR ALL
PURPOSES SHALL BE TAKEN TO BE, PRECISELY THE SAME AS THEY WOULD HAVE
BEEN HAD THE VESSEL, IN FACT, BEEN TAKEN INTO CUSTODY BY THE UNITED
STATES MARSHAL UNDER SAID IN REM PROCESS, AND RELEASED BY THE FILING OF
CLAIM AND RELEASE BOND, WE, AS CLAIMANT, RESERVING IN BEHALF OF THE
VESSEL ALL OTHER OBJECTIONS AND DEFENSES OTHERWISE AVAILABLE EXCEPT
THOSE WHICH MIGHT BE PREDICATED UPON THE FACT THAT THE VESSEL WAS NOT
ACTUALLY SO SEIZED." 

ACCORDINGLY, ON JULY 29, 1958, FEDERAL BARGE LINES, INC., FILED ITS
CLAIM TO "BARGE FBL-585, PROCEEDED AGAINST HEREIN, AND CLAIMED THE SAID
BARGE AS OWNER AND PRAYED THAT IT BE PERMITTED TO DEFEND ACCORDING TO
LAW"; AND ON SEPTEMBER 18, 1958, IT FILED ITS ANSWER TO THE LIBEL. 

ON OCTOBER 13, 1958, FEDERAL BARGE LINES, INC., FILED ITS MOTION TO
TRANSFER "THIS ACTION TO THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE, WESTERN DIVISION, ON THE GROUND THAT
SUCH TRANSFER IS NECESSARY FOR THE CONVENIENCE OF THE PARTIES AND
WITNESSES AND IN THE INTEREST OF JUSTICE AS WILL APPEAR FROM THE
AFFIDAVIT ATTACHED HERETO AND MADE A PART HEREOF."  (FN4)  AFTER
HEARING, THE DISTRICT COURT GRANTED THE MOTION AND ORDERED THE ACTION
TRANSFERRED AS REQUESTED BY THE MOVANT, BUT THE DISTRICT JUDGE, ACTING
UNDER THE INTERLOCUTORY APPEALS ACT, 28 U.S.C. SEC. 1292(B), "CERTIFIED
THAT THIS ORDER INVOLVES A CONTROLLING QUESTION OF LAW AS TO WHICH
THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION AND THAT AN
IMMEDIATE APPEAL FROM THIS ORDER MAY MATERIALLY ADVANCE THE ULTIMATE
TERMINATION OF THIS LITIGATION."  (FN5) 

PETITIONER THEN SOUGHT AND WAS ALLOWED AN APPEAL BY THE COURT OF
APPEALS UNDER 28 U.S.C. SEC. 1292(B).  (FN6)  THAT COURT, RELYING
HEAVILY ON ITS OPINION IN EX PARTE BLASKI, 245 F.2D 737, AFFIRMED, 268
F.2D 240, AND WE GRANTED CERTIORARI, 361 U.S. 811. 

ALTHOUGH THE COURT OF APPEALS FOUND "THAT FAIR APPLICATION OF THE
LETTER UNDERTAKING  ... REQUIRES THAT WE TREAT IT AS THOUGH, UPON THE
LIBEL BEING FILED, THE VESSEL HAD ACTUALLY BEEN SEIZED, A CLAIM FILED,
A STIPULATION TO ABIDE DECREE WITH SURETIES EXECUTED AND FILED BY
CLAIMANT, AND THE VESSEL FORMALLY RELEASED," IT HELD THAT, INASMUCH AS
THE CLAIMANT-RESPONDENT HAD BY ITS MOTION TO TRANSFER CONSENTED "TO AN
UNLIMITED SUBMISSION OF THE CAUSE (TO THE TENNESSEE DISTRICT COURT)
EVEN THOUGH IT COULD NOT HAVE BEEN FILED THERE INITIALLY," TRANSFER OF
THE IN REM ACTION TO THAT COURT "PRESENTS NO REAL OR CONCEPTUAL
DIFFICULTIES," BECAUSE "THE COURT DOES NOT UNDERTAKE TO TRANSFER THE
RES, NOR DOES IT EVEN ATTEMPT TO TRANSFER THE CAUSE WHILE THE RES IS
STILL IN CUSTODY OF THE COURT"; THAT WHEN, AS HERE, A "BOND
STIPULATION" IS GIVEN AND SUBSTITUTED FOR THE VESSEL "TRADITIONAL
NOTIONS ARE NOT AFFECTED IF THAT SECURITY FLOATS WITH THE CAUSE
WHEREVER THE LAW NAVIGATES IT."  ID., AT 243, 244. 

IT IS NOT DISPUTED THAT THE LIBEL, INSOFAR AS IT IS IN PERSONAM,
MIGHT HAVE BEEN BROUGHT BY PETITIONER AGAINST RESPONDENT, FEDERAL BARGE
LINES, INC., IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF TENNESSEE, AS THAT COURT HAD JURISDICTION TO ENTERTAIN SUCH
AN ACTION AND FEDERAL BARGE LINES, INC., WAS AMENABLE TO THE SERVICE OF
MONITION THERE.  HENCE, IF THIS LIBEL HAD BEEN BROUGHT ONLY IN PERSONAM
AGAINST FEDERAL BARGE LINES, INC., - I.E., HAD OMITTED THE CLAIM IN REM
AGAINST THE BARGE - IT COULD HAVE BEEN TRANSFERRED TO THE TENNESSEE
DISTRICT, FOR SUCH AN ACTION COULD HAVE BEEN BROUGHT IN THAT FORUM. 
BUT, AS THE PARTIES AGREE, PETITIONER HAD A LEGAL RIGHT TO JOIN IN ONE
ACTION, AS IT DID HERE, A CLAIM IN PERSONAM AGAINST FEDERAL BARGE
LINES, INC., AND ONE IN REM AGAINST THE BARGE.  (FN7)  THE COURT'S
OPINION SAYS THAT, BECAUSE THE CLAIM IN PERSONAM MIGHT HAVE BEEN
BROUGHT IN THE MEMPHIS FORUM, IT IS A MISTAKE TO SAY THAT "THE ENTIRE
CIVIL ACTION MUST REMAIN IN THE INCONVENIENT NEW ORLEANS FORUM."  BUT
RESPONDENT'S MOTION DID NOT ASK TRANSFER OF ONLY THE CLAIM IN PERSONAM,
IF INDEED THE COURT COULD HAVE SERVED THE TWO CLAIMS AND HAVE
TRANSFERRED ONE AND KEPT THE OTHER - A MATTER NOT AT ALL DEALT WITH IN
THE COURT'S OPINION.  INSTEAD IT ASKED TRANSFER OF THE WHOLE ACTION,
AND SO WE ARE PRESENTED WITH THE QUESTION WHETHER AN ADMIRALTY ACTION
IN REM, OR PARTLY IN REM, MAY BE TRANSFERRED, UPON APPLICATION OF THE
CLAIMANT OF THE RES, TO A DISTRICT IN WHICH THE RES IS NOT LOCATED, AND
IN WHICH THE LIBELLANT DID NOT HAVE A LEGAL RIGHT TO BRING IT. 

THE COURT TREATS THIS CASE AS A "SINGLE" DAMAGE ACTION AGAINST ONLY
THE BARGE OWNER.  THAT TREATMENT SIMPLY IGNORES THE CRUCIAL FACT WHICH
GIVES RISE TO THE QUESTION WE HAVE HERE.  OF COURSE, IF THIS WERE
SIMPLY A "SINGLE" ACTION FOR DAMAGES AGAINST ONLY THE BARGE OWNER WE
WOULD NOT HAVE THE QUESTION THAT CONFRONTS US, FOR WE ALL AGREE THAT
SUCH AN ACTION "MIGHT HAVE BEEN BROUGHT" IN THE MEMPHIS FORUM, AND,
HENCE, IF BROUGHT ELSEWHERE IT COULD HAVE BEEN TRANSFERRED TO THAT
FORUM UNDER SEC. 1404(A).  BUT THOSE ARE NOT THE FACTS.  THE FACTS ARE
THAT THERE WERE TWO CLAIMS IN THIS "CIVIL ACTION," ONE IN PERSONAM
AGAINST THE OWNER, AND ONE IN REM AGAINST THE BARGE.  AND WE CANNOT
DECIDE THE QUESTION PRESENTED BY DENYING ITS EXISTENCE OR BY IGNORING
THE FACTS THAT CREATED IT.  ONE OF THE TWO CLAIMS OF THIS "CIVIL
ACTION" WAS IN REM AGAINST THE BARGE.  THE BARGE WAS IN NEW ORLEANS
WHEN THIS SUIT WAS BROUGHT.  THEREFORE, THIS "CIVIL ACTION" COULD NOT
HAVE BEEN BROUGHT IN MEMPHIS, AND, HENCE, CANNOT BE TRANSFERRED TO THAT
FORUM IF THE LIMITING WORDS OF SEC. 1404(A), "WHERE IT MIGHT HAVE BEEN
BROUGHT," ARE TO HAVE ANY MEANING. 

PETITIONER, RELYING ON THE ESTABLISHED PRINCIPLE THAT AN ACTION IN
REM MAY BE BROUGHT ONLY IN THE DISTRICT WHERE THE RES IS LOCATED, (FN8)
OR POSSIBLY, UNDER THE ACCUSTOMED PRACTICE IN ADMIRALTY, IN THE
DISTRICT WHERE, AS ALLEGED IN THE LIBEL, THE RES (VESSEL) WILL BE
"DURING THE PENDENCY OF THE PROCESS (ISSUED ON THE LIBEL)," (FN9)
CONTENDS THAT INASMUCH AS THE BARGE WAS LOCATED IN THE EASTERN DISTRICT
OF LOUISIANA WHEN THE LIBEL WAS FILED, THIS ACTION COULD NOT HAVE BEEN
BROUGHT OR PROSECUTED IN ANY OTHER DISTRICT AND, HENCE, THE COURT WAS
WITHOUT POWER, UNDER 28 U.S.C. SEC. 1404(A), (FN10) TO TRANSFER IT,
UPON RESPONDENTS' MOTION AND EVEN WITH THEIR WAIVER OF VENUE AND
JURISDICTION, TO THE WESTERN DISTRICT OF TENNESSEE, WHERE IT COULD NOT
HAVE BEEN BROUGHT BY THE LIBELLANT.  THIS CONTENTION ACCORDS WITH OUR
OPINION IN THE BLASKI AND BEHIMER CASES, 363 U.S. 335. 

BUT RESPONDENTS CONTEND THAT AN ADMIRALTY COURT IS NOT SUBJECT TO THE
PROVISION OF SEC. 1404(A) LIMITING THE TRANSFER OF AN ACTION TO A
DISTRICT "WHERE IT MIGHT HAVE BEEN BROUGHT," BUT IS EMPOWERED BY
ADMIRALTY RULE 44 TO TRANSFER AN ACTION, ON THE MOTION OF THE CLAIMANT
RESPONDENT AND A MERE SHOWING OF CONVENIENCE, TO ANY OTHER DISTRICT. 
THIS CONTENTION IS WHOLLY WITHOUT MERIT.  ADMIRALTY RULE 44, (FN11)
WHICH IN EFFECT AUTHORIZES DISTRICT COURTS TO FORMULATE LOCAL RULES OF
PRACTICE, IS EXPRESSLY LIMITED TO "CASES NOT PROVIDED FOR BY THESE
RULES OR BY STATUTE  ...  ."  THE MATTER OF TRANSFERRING "ANY CIVIL
ACTION" - WHICH PHRASE INCLUDES ACTIONS IN ADMIRALTY (FN12) - IS
EXPRESSLY PRESCRIBED BY A STATUTE.  SECTION 1404(A) EXPRESSLY LIMITS A
DISTRICT COURT'S POWER TO TRANSFER A CIVIL ACTION TO A DISTRICT OR
DIVISION "WHERE IT MIGHT HAVE BEEN BROUGHT."  HOFFMAN V. BLASKI, SUPRA.
THE POWER TO TRANSFER ACTIONS CANNOT DERIVE FROM LOCAL PRACTICE BUT
ONLY FROM SUBSTANTIVE LAW.  NOR IS THERE ANY SHOWING HERE THAT THE
DISTRICT COURT HAS EVER EVEN PURPORTED TO PROMULGATE ANY APPLICABLE
LOCAL RULE OF PRACTICE. 

RESPONDENTS NEXT CONTEND THAT EVEN IF SEC. 1404(A) APPLIES TO THE
TRANSFER OF ADMIRALTY ACTIONS, THAT SECTION DOES NOT PRECLUDE TRANSFER
OF AN ADMIRALTY ACTION IN REM TO A DISTRICT WHERE THE RES IS NOT
LOCATED IF THE CLAIMANT-RESPONDENT, AFTER HAVING PREVENTED THE ARREST
OR PROCURED THE RELEASE OF THE RES BY GIVING BOND OR OTHER ACCEPTABLE
SECURITY, SO MOVES AND AGREES TO SUBMIT TO THE JURISDICTION OF THE
TRANSFEREE COURT.  THEY ARGUE THAT AUTHORITY TO PROCEED IN ADMIRALTY
AGAINST THE RES (VESSEL) IS A MERE SECURITY DEVICE AND, AFTER THE
CLAIMANT-RESPONDENT HAS PREVENTED THE ARREST OR PROCURED THE RELEASE OF
THE RES BY GIVING BOND OR OTHER ACCEPTABLE SECURITY, THE IN REM ACTION
IS CONVERTED INTO ONE IN PERSONAM, AND MAY ACCORDINGLY BE TRANSFERRED
UNDER SEC. 1404(A), ON MOTION OF THE CLAIMANT-RESPONDENT (BUT NOT OF
THE LIBELLANT)(FN13) AND A FINDING OF CONVENIENCE, TO ANY OTHER
DISTRICT IN WHICH THE ACTION IF ORIGINALLY IN PERSONAM "MIGHT HAVE BEEN
BROUGHT."  THE COURT APPEARS TO AGREE WITH THAT ARGUMENT.  IT
CRITICIZES THE SETTLED DOCTRINE OF PERSONIFICATION OF THE SHIP.  IT
SAYS THAT "PERHAPS IT IS GOING TOO FAR (TO REFER TO THE FICTION OF
PERSONIFICATION OF THE SHIP) AS 'ARCHAIC,' 'AN ANIMISTIC SURVIVAL FROM
REMOTE TIMES,' 'IRRATIONAL' AND 'ATAVISTIC'" (CITING THE CARLOTTA, 48
F.2D 110, 112), BUT IT DOES NOT SUGGEST THAT THE NUMEROUS CASES OF THIS
COURT WHICH HAVE ESTABLISHED AND ADHERED TO THAT "FICTION" FOR MORE
THAN 150 YEARS SHOULD BE OVERRULED - SOMETHING I COULD UNDERSTAND, EVEN
AT THIS LATE DAY.  INSTEAD, IT SEEMS MERELY TO BRUSH THEM ASIDE OR TO
FAIL TO RECOGNIZE THEIR APPLICATION HERE. 

BUT ADMIRALTY PROCEEDINGS IN REM ARE NOT A MERE SECURITY DEVICE. 
FROM ITS EARLIEST HISTORY TO THE PRESENT TIME, THIS COURT HAS
CONSISTENTLY HELD THAT AN ADMIRALTY PROCEEDING IN REM IS ONE
ESSENTIALLY AGAINST THE VESSEL ITSELF AS THE DEBTOR OR OFFENDING THING;
AND, IN SUCH AN ACTION, THE VESSEL ITSELF IS IMPLEADED AS THE
DEFENDANT, SEIZED, JUDGED AND SENTENCED.  (FN14)  IN ROUNDS V.
CLOVERPORT FOUNDRY, 237 U.S. 303, MR. JUSTICE HUGHES, IN DISTINGUISHING
BETWEEN IN REM ACTIONS AGAINST A VESSEL, ON THE ONE HAND, AND
ATTACHMENTS AGAINST A VESSEL TO FORCE APPEARANCE OF THE RESPONDENT OR
TO PROVIDE SECURITY IN AN ACTION IN PERSONAM, ON THE OTHER HAND, SAID: 
"ACTIONS IN PERSONAM WITH A CONCURRENT ATTACHMENT TO AFFORD SECURITY
FOR THE PAYMENT OF A PERSONAL JUDGMENT ARE IN A DIFFERENT CATEGORY. 
THE BELFAST, SUPRA; TAYLOR V. CARRYL, 20 HOW.  583, 598, 599; THE
ROBERT W. PARSONS, SUPRA.  AND THIS IS SO NOT ONLY IN THE CASE OF AN
ATTACHMENT AGAINST THE PROPERTY OF THE DEFENDANT GENERALLY, BUT ALSO
WHERE IT RUNS SPECIFICALLY AGAINST THE VESSEL UNDER A STATE STATUTE
PROVIDING FOR A LIEN, IF IT BE FOUND THAT THE ATTACHMENT WAS AUXILIARY
TO THE REMEDY IN PERSONAM.  LEON V. GALCERAN, 11 WALL.  185; SEE ALSO
JOHNSON V. CHICAGO &C. ELEVATOR CO., 119 U.S. 388, 398, 399; KNAPP,
STOUT & CO. V. MCCAFFREY, 177 U.S. 638, 646, 648."  ID., AT 307. 

INDEED, THE ABSENCE OF LIABILITY OF THE OWNER OF A VESSEL DOES NOT
NECESSARILY EXONERATE THE VESSEL ITSELF.  (FN15)  IF, FOR EXAMPLE, A
VESSEL UNDER BAREBOAT CHARTER DAMAGES ANOTHER AS THE RESULT OF THE
NEGLIGENCE OF HER CREW, THE VESSEL IS LIABLE IN REM EVEN THOUGH AN
ACTION IN PERSONAM WOULD NOT LIE AGAINST HER OWNER.  (FN16)  LIKEWISE,
THE RIGHT OF ONE DAMAGED BY THE WRONG OF A VESSEL TO PROCEED AGAINST
HER FOLLOWS HER INTO THE HANDS OF AN INNOCENT PURCHASER, ALTHOUGH THE
LATTER IS NOT LIABLE IN PERSONAM.  (FN17)  SIMILARLY, A VESSEL IS
LIABLE IN REM FOR DAMAGES RESULTING FROM HER NEGLIGENT OPERATION BY AN
INDEPENDENT PILOT TO WHOSE CONTROL THE LAW REQUIRED HER TO BE CONFINED,
ALTHOUGH HER OWNER IS NOT LIABLE IN PERSONAM.  (FN18) 

THE CASES CITED BY THE COURT, (FN19) HOLDING THAT IN EXPRESSLY
EXONERATING BY STATUTE SHIPOWNERS FROM CERTAIN LIABILITIES FOR CASUALTY
LOSSES OF CARGO AT SEA, CONGRESS SIMILARLY INTENDED TO EXONERATE THEIR
PROPERTY, I.E., THEIR SHIPS, FROM SUCH LIABILITIES, ARE WHOLLY
INAPPOSITE.  THEY INVOLVED ONLY INTERPRETATION OF PARTICULAR STATUTES,
AND DID NOT AT ALL DEAL WITH, AND CERTAINLY WERE NOT INTENDED TO
DESTROY, FOR THEY EXPRESSLY RECOGNIZED, THE HISTORIC DIFFERENCE AND
DISTINCTION BETWEEN ADMIRALTY ACTIONS IN PERSONAM AND THOSE IN REM. 
NOR DOES THIS COURT'S ADMIRALTY RULE 54, DISCUSSED BY THE COURT, TOUCH
THE QUESTION OF TRANSFERABILITY OF THIS CASE.  THIS IS NOT A LIMITATION
OF LIABILITY PROCEEDING, SPECIALLY COVERED BY THAT RULE, AND THE
PARTIES MAKE NO SUCH CLAIM.  RATHER WE HAVE HERE ONLY A SIMPLE MOTION
TO TRANSFER A "CIVIL ACTION" FROM ONE DISTRICT TO ANOTHER, AND SUCH A
MOTION IS EXCLUSIVELY GOVERNED BY SEC. 1404(A). 

THE BARGE ITSELF BEING THE "OFFENDING THING," AND HERE BEING ITSELF
SUBJECT TO SUIT, AND HAVING BEEN SUED, IN REM, WE THINK IT MAY NOT BE
SAID THAT THE GIVING BY RESPONDENT, FEDERAL BARGE LINES, INC., AND THE
ACCEPTANCE BY PETITIONER, OF THE "LETTER UNDERTAKING," TO PREVENT THE
PHYSICAL ARREST OF THE BARGE, CONVERTED THE IN REM ACTION INTO ONE IN
PERSONAM.  THAT LETTER EXPRESSLY SAID THAT THE RIGHTS OF THE PARTIES
WOULD FOR ALL PURPOSES BE "PRECISELY THE SAME AS THEY WOULD HAVE BEEN
HAD THE VESSEL, IN FACT, BEEN TAKEN INTO CUSTODY BY THE UNITED STATES
MARSHAL UNDER SAID IN REM PROCESS, AND RELEASED BY THE FILING OF CLAIM
AND RELEASE BOND  ...  ."  THAT THIS LETTER WAS LEGALLY EFFECTIVE IN
ACCORDANCE WITH ITS TERMS IS NOT DISPUTED.  THIS COURT HAS FROM AN
EARLY DAY CONSISTENTLY HELD THAT A BOND, GIVEN TO PREVENT THE ARREST OR
TO PROCURE THE RELEASE OF A VESSEL, IS SUBSTITUTED FOR AND STANDS AS
THE VESSEL IN THE CUSTODY OF THE COURT.  (FN20)  INASMUCH AS THE
PARTIES AGREED THAT THE LETTER INVOLVED HERE WAS TO HAVE PRECISELY THE
SAME EFFECT AS A BOND, IT FOLLOWS THAT THE LETTER IS, JUST AS A BOND
WOULD HAVE BEEN, A SUBSTITUTE FOR THE VESSEL IN THE CUSTODY OF THE
COURT, AND THAT THE GIVING AND ACCEPTING OF THE LETTER DID NOT CONVERT
THE IN REM ACTION INTO ONE IN PERSONAM. 

RESPONDENTS FINALLY ARGUE THAT EVEN THOUGH THE BARGE ITSELF COULD BE
AND WAS SUED AS THE "OFFENDING THING" AND, BEING LOCATED IN THE
DISTRICT OF SUIT, THIS ACTION IN REM AGAINST IT COULD NOT HAVE BEEN
BROUGHT ELSEWHERE WITHOUT RESPONDENT'S CONSENT, IT WAS AS POSSIBLE FOR
THE BARGE VOLUNTARILY TO ENTER APPEARANCE IN AND SUBMIT TO THE VENUE
AND JURISDICTION OF THE TRANSFEREE COURT AS IT WOULD HAVE BEEN FOR ONE
SUED IN PERSONAM TO DO SO, (FN21) AND THAT THEIR MOTION TO TRANSFER HAD
THAT EFFECT.  WHETHER JURISDICTION OVER A RES IN AN ACTION IN REM MAY
BE CONFERRED BY CONSENT OF ITS OWNER, GIVEN EITHER BEFORE OR AFTER THE
ACTION HAS BEEN BROUGHT, UPON A COURT THAT DOES NOT HAVE TERRITORIAL
JURISDICTION OR CUSTODY OF THE RES WE NEED NOT DECIDE, FOR THE QUESTION
HERE IS NOT SUCH, BUT, RATHER, IT IS SIMPLY WHETHER A DISTRICT COURT IS
EMPOWERED BY SEC. 1404(A) TO TRANSFER SUCH AN ACTION TO A DISTRICT IN
WHICH THE LIBELLANT DID NOT HAVE THE RIGHT TO BRING IT, INDEPENDENTLY
OF THE WILL OR WISHES OF THE CLAIMANT-RESPONDENT.  THAT QUESTION WAS
RULED IN THE NEGATIVE BY HOFFMAN V. BLASKI, 363 U.S. 335, AND I THINK
IT FOLLOWS THAT THE JUDGMENT IN THIS CASE SHOULD BE REVERSED. 

FN1  SEE NOTE 15, INFRA. 

FN2  PETITIONER, CONTINENTAL GRAIN COMPANY, IS A DELAWARE CORPORATION
MAINTAINING ITS PRINCIPAL OFFICE IN NEW YORK, NEW YORK, BUT IS ALSO
AUTHORIZED TO DO AND IS DOING BUSINESS IN THE CITY OF MEMPHIS IN THE
WESTERN DISTRICT OF TENNESSEE. 

FN3  FEDERAL BARGE LINES, INC., A DELAWARE CORPORATION, IS A COMMON
CARRIER BY WATER, OPERATING ON THE MISSISSIPPI RIVER AND ITS PRINCIPAL
TRIBUTARIES, AND HAS OFFICES AND DOES BUSINESS IN, AMONG OTHER PLACES,
MEMPHIS, TENNESSEE, AND NEW ORLEANS, LOUISIANA. 

FN4  THE PRINCIPAL AVERMENTS OF THE AFFIDAVIT REFERRED TO WERE (1)
THAT ON JUNE 27, 1958, FEDERAL BARGE LINES, INC., FILED AN ACTION AT
LAW AGAINST PETITIONER, CONTINENTAL GRAIN COMPANY, IN THE CIRCUIT COURT
OF SHELBY COUNTY, TENNESSEE, FOR DAMAGES TO ITS BARGE FBL-585, CAUSED
BY THE ALLEGED NEGLIGENCE OF THE GRAIN COMPANY IN LOADING IT AT MEMPHIS
ON NOVEMBER 6, 1957, WHICH ACTION WAS REMOVED BY THE GRAIN COMPANY TO
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
ON JULY 15, 1958, AND (2) THAT THE NECESSARY WITNESSES RESIDE IN OR
NEARER TO MEMPHIS THAN TO NEW ORLEANS. 

FN5  IN HIS UNPUBLISHED PER CURIAM THE DISTRICT JUDGE SAID, INTER
ALIA, "THE LIBEL IS IN REM AS TO THE BARGE FBL-585.  WHILE THIS LIBEL
COULD HAVE BEEN ORIGINALLY BROUGHT IN THE WESTERN DISTRICT OF TENNESSEE
AGAINST THE RESPONDENT, FEDERAL BARGE LINES, THE OWNER OF THE BARGE,
THE LIBEL AS TO THE BARGE ITSELF WOULD ORDINARILY BE RESTRICTED TO THE
PLACE WHERE THE BARGE IS LOCATED AT THE TIME THE LIBEL IS FILED.  AT
THAT TIME, AND NOW, THE BARGE IS LOCATED IN THIS DISTRICT.  HOWEVER,
SINCE THE BARGE WAS NEITHER SEIZED BY THE MARSHAL NOR BONDED BY
RESPONDENT, LIBELLANT HAVING ACCEPTED RESPONDENT'S LETTER UNDERTAKING
TO RESPOND TO ANY DECREE ENTERED HEREIN, AND SINCE THE OWNER THEREOF,
FEDERAL BARGE LINES, APPARENTLY IS FINANCIALLY ABLE TO RESPOND TO ANY
DECREE RENDERED AGAINST IT, THE INTEREST OF JUSTICE WOULD BEST BE
SERVED BY  ...  TRANSFERRING THIS CASE TO THE WESTERN DISTRICT OF
TENNESSEE." 

FN6  THE DISTRICT COURT STAYED ITS ORDER OF TRANSFER, PENDING
DETERMINATION OF THE APPEAL. 

FN7  NEWELL V. NORTON, 3 WALL.  257; IN RE FASSETT, 142 U.S. 479, 484
("THE DISTRICT COURT HAS JURISDICTION TO DETERMINE THE QUESTION,
BECAUSE IT HAS JURISDICTION OF THE VESSEL BY ATTACHMENT, AND OF FASSETT
BY MONITION  ...  ."); THE RESOLUTE, 168 U.S. 437, 442; TURNER V.
UNITED STATES, 27 F.2D 134, 136 (C.A.2D CIR.). 

FN8  THE ANN, 9 CRANCH 289, 291; MILLER V. UNITED STATES, 11 WALL. 
268, 294; UNITED STATES V. MACK, 295 U.S. 480, 484; CLINTON FOODS V.
UNITED STATES, 188 F.2D 289, 292 (C.A. 4TH CIR.); FETTIG CANNING CO. V.
STECKLER, 188 F.2D 715, 717-718 (C.A. 7TH CIR.).  CF. TORRES V. WALSH,
221 F.2D 319, 321 (C.A.2D CIR.); BROUSSARD V. THE JERSBEK, 140 F. SUPP.
851, 852-853. 

FN9  NOTWITHSTANDING THE PROVISION OF ADMIRALTY RULE 22 (28 U.S.C. P.
5226) THAT IF THE LIBEL BE IN REM IT SHALL STATE "THAT THE PROPERTY IS
WITHIN THE DISTRICT," WE ARE TOLD THAT IN PRACTICE THE COMMON, IF NOT
UNIVERSAL, JURISDICTIONAL STATEMENT IN LIBELS IN REM RECITES "THAT THE
VESSEL NOW IS, OR, DURING THE PENDENCY OF PROCESS HEREIN, WILL BE,
WITHIN THE DISTRICT AND THE JURISDICTION OF THE COURT."  SEE INTERNATIO
ROTTERDAM, INC., V. THOMSEN, 218 F.2D 514, 515-516 (C.A. 4TH CIR.) - IN
SOME OTHER ASPECTS AN ANOMALOUS OPINION. 

FN10  "SEC.  1404.  CHANGE OF VENUE. 

"(A) 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." 

FN11  RULE 44.  "RIGHT OF TRIAL COURTS TO MAKE RULES OF PRACTICE. 

"IN SUITS IN ADMIRALTY IN ALL CASES NOT PROVIDED FOR BY THESE RULES
OR BY STATUTE, THE DISTRICT COURTS ARE TO REGULATE THEIR PRACTICE IN
SUCH A MANNER AS THEY DEEM MOST EXPEDIENT FOR THE DUE ADMINISTRATION OF
JUSTICE, PROVIDED THE SAME ARE NOT INCONSISTENT WITH THESE RULES." 

FN12  TORRES V. WALSH, 221 F.2D 319, 321 (C.A.2D CIR.); INTERNATIO
ROTTERDAM, INC., V. THOMSEN, 218 F.2D 514, 515 (C.A. 4TH CIR.), AND SEE
EX PARTE COLLETT, 337 U.S. 55, 58; UNITED STATES V. NATIONAL CITY
LINES, INC., 337 U.S. 78. 

FN13  RESPONDENTS SAY IN THEIR BRIEF: 

"A TRANSFER ON MOTION OF A CLAIMANT AND A TRANSFER ON MOTION OF A
LIBELLANT ARE TWO DIFFERENT THINGS.  WE DO NOT HERE CONTEND, AND IT IS
OUR SUBMISSION THAT IT WOULD BE ERROR FOR A COURT TO HOLD, THAT A
COERCIVE TRANSFER OF A CLAIMANT TO A DIFFERENT JURISDICTION THAN THAT
IN WHICH THE SUIT WAS FILED IS PROPER.  THE CONCEPT OF TRANSFEREE
JURISDICTION IS THAT THERE MUST BE TWO AVAILABLE FORUMS, AND UNLESS THE
MOVING PARTY IS THE CLAIMANT, THERE IS NO SECONDARY OR TRANSFEREE FORUM
TO WHICH THE CASE COULD BE TRANSFERRED." 

NOTHING IN SEC. 1404(A), OR IN ITS LEGISLATIVE HISTORY, SUGGESTS SUCH
A UNILATERAL OBJECTIVE AND WE SHOULD NOT, UNDER THE GUISE OF
INTERPRETATION, ASCRIBE TO CONGRESS ANY SUCH DISCRIMINATORY PURPOSE. 
SEE HOFFMAN V. BLASKI, 363 U.S. 335, 344. 

FN14  THE MARY, 9 CRANCH 126, 144; THE MOSES TAYLOR, 4 WALL.  411;
THE BELFAST, 7 WALL.  624; THE GLIDE, 167 U.S. 606; THE ROBERT W.
PARSONS, 191 U.S. 17; ROUNDS V. CLOVERPORT FOUNDRY, 237 U.S. 303, 306
307. 

"A SHIP IS THE MOST LIVING OF INANIMATE THINGS.  SERVANTS SOMETIMES
SAY 'SHE' OF A CLOCK, BUT EVERY ONE GIVES A GENDER TO VESSELS.  AND WE
NEED NOT BE SURPRISED, THEREFORE, TO FIND A MODE OF DEALING WHICH HAS
SHOWN SUCH EXTRAORDINARY VITALITY IN THE CRIMINAL LAW APPLIED WITH EVEN
MORE STRIKING THOROUGHNESS IN THE ADMIRALTY.  IT IS ONLY BY SUPPOSING
THE SHIP TO HAVE BEEN TREATED AS IF ENDOWED WITH PERSONALITY, THAT THE
ARBITRARY SEEMING PECULIARITIES OF THE MARITIME LAW CAN BE MADE
INTELLIGIBLE, AND ON THAT SUPPOSITION THEY AT ONCE BECOME CONSISTENT
AND LOGICAL."  HOLMES, THE COMMON LAW (1881), 26-27. 

FN15  "SUCH PERSONIFICATION OF THE VESSEL, TREATING IT AS A JURISTIC
PERSON WHOSE ACTS AND OMISSIONS, ALTHOUGH BROUGHT ABOUT BY HER
PERSONNEL, ARE PERSONAL ACTS OF THE SHIP FOR WHICH, AS A JURISTIC
PERSON, SHE IS LEGALLY RESPONSIBLE, HAS LONG BEEN RECOGNIZED BY THIS
COURT."  CANADIAN AVIATOR, LTD., V. UNITED STATES, 324 U.S. 215, 224. 

FN16  THE BARNSTABLE, 181 U.S. 464.  THE "SETTLED RULE IS THAT WHERE
THE SHIP-OWNER PROVIDES THE VESSEL ONLY, AND THE MASTER AND CREW ARE
SELECTED BY THE CHARTERER, THE LATTER AND NOT THE SHIP-OWNER IS
RESPONSIBLE FOR THEIR ACTS."  THE CHINA, 7 WALL.  53, 70. 

FN17  "THE MARITIME 'PRIVILEGE' OR LIEN  ...  ACCOMPANIES THE
PROPERTY INTO THE HANDS OF A BONA FIDE PURCHASER."  VANDEWATER V.
MILLS, 19 HOW.  82, 89.  SEE ALSO THE CHINA, 7 WALL.  53, 68; THE JOHN
G. STEVENS, 170 U.S. 113. 

FN18  THE CHINA, 7 WALL.  53; HOMER RAMSDELL TRANSP.  CO. V. LA
COMPAGNIE GENERALE TRANSATLANTIQUE, 182 U.S. 406. 

FN19  THE CITY OF NORWICH, 118 U.S. 468, 503; CONSUMERS IMPORT CO. V.
KABUSHIKI KAISHA KAWASAKI ZOSENJO, 320 U.S. 249, 253-254. 

FN20 THE PALMYRA, 12 WHEAT.  1, 10; THE WEBB, 14 WALL.  406, 418; THE
WANATA, 95 U.S. 600, 611; UNITED STATES V. AMES, 99 U.S. 35.  IN JUDGE
WOOLSEY'S VERY PERCEPTIVE OPINION IN J.K. WELDING CO. V. GOTHAM MARINE
CORP., 47 F.2D 332, 335 (D.C.S.D.N.Y.), THE RULE WAS SUMMARIZED AS
FOLLOWS: 

"THE STIPULATION FOR VALUE IS A COMPLETE SUBSTITUTE FOR THE RES, AND
THE STIPULATION FOR VALUE ALONE IS SUFFICIENT TO GIVE JURISDICTION TO A
COURT BECAUSE ITS LEGAL EFFECT IS THE SAME AS THE PRESENCE OF THE RES
IN THE COURT'S CUSTODY."  SEE ALSO GILMORE AND BLACK, THE LAW OF
ADMIRALTY, AT 650-651. 

FN21  SEE J.K. WELDING CO. V. GOTHAM MARINE CORP., 47 F.2D 332, 335
(D.C.S.D.N.Y.). 
..END :







ARMSTRONG V. UNITED STATES 364 U.S. 40 


NO. 270.  ARGUED MARCH 28, 1960 - DECIDED JUNE 27, 1960 - CT. CL. - ,
169 F. SUPP. 259, REVERSED. 


UPON DEFAULT BY A SHIPBUILDER ON ITS CONTRACT TO CONSTRUCT CERTAIN
BOATS FOR THE UNITED STATES, THE GOVERNMENT, EXERCISING AN OPTION UNDER
THE CONTRACT, REQUIRED THE SHIPBUILDER TO TRANSFER TO THE GOVERNMENT
TITLE TO THE UNCOMPLETED BOATS AND THE MATERIALS ON HAND FOR THEIR
CONSTRUCTION.  THIS MADE IT IMPOSSIBLE FOR PETITIONERS TO ENFORCE THEIR
MATERIALMEN'S LIENS WHICH HAD ATTACHED UNDER STATE LAW TO THE BOATS AND
MATERIALS WHEN THE MATERIALS WERE FURNISHED TO THE SHIPBUILDER. 
PETITIONERS SUED IN THE COURT OF CLAIMS FOR COMPENSATION FOR THE TAKING
OF THEIR LIENS BY THE GOVERNMENT.  HELD:  PETITIONERS ARE ENTITLED TO
RECOVER WHATEVER VALUE THEIR LIENS HAD WHEN THE GOVERNMENT TOOK TITLE
TO THE BOATS AND MATERIALS.  PP. 41-49. 

(A)  UNDER THE TERMS OF THE CONTRACT HERE INVOLVED, TITLE TO THE
PROPERTY WAS IN THE SHIPBUILDER WHEN THE MATERIALS WERE FURNISHED, AND
THE MERE FACT THAT IT WAS CONTEMPLATED THAT TITLE EVENTUALLY WOULD VEST
IN THE GOVERNMENT DID NOT PREVENT THE MATERIALMEN'S LIENS FROM
ATTACHING.  PP. 42-44. 

(B)  ON THE RECORD IN THIS CASE, PETITIONERS HAD COMPENSABLE PROPERTY
INTERESTS WITHIN THE MEANING OF THE FIFTH AMENDMENT IN THEIR LIENS ON
THE BOATS AND MATERIALS PRIOR TO TRANSFER OF TITLE TO THE GOVERNMENT. 
PP. 44-46. 

(C)  SINCE THE GOVERNMENT'S ACTION DESTROYED THE VALUE OF
PETITIONERS' LIENS, THERE WAS, UNDER THE CIRCUMSTANCES OF THIS CASE, A
"TAKING" OF THESE LIENS BY THE GOVERNMENT, FOR WHICH COMPENSATION IS
DUE UNDER THE FIFTH AMENDMENT.  PP. 46-49. 

ARMSTRONG ET AL. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THIS ACTION PETITIONERS ASSERT MATERIALMEN'S LIENS UNDER STATE LAW
FOR MATERIALS FURNISHED TO A PRIME CONTRACTOR BUILDING BOATS FOR THE
UNITED STATES, AND SEEK JUST COMPENSATION UNDER THE FIFTH AMENDMENT FOR
THE VALUE OF THEIR LIENS ON ACCUMULATED MATERIALS AND UNCOMPLETED WORK
WHICH HAVE BEEN CONVEYED TO THE UNITED STATES. 

THE UNITED STATES ENTERED INTO A CONTRACT WITH THE RICE SHIPBUILDING
CORPORATION FOR THE CONSTRUCTION OF 11 NAVY PERSONNEL BOATS.  THE
CONTRACT PROVIDED THAT IN THE EVENT OF DEFAULT BY RICE, THE GOVERNMENT
COULD TERMINATE THE CONTRACT AND REQUIRE RICE TO TRANSFER TITLE AND
DELIVER TO THE GOVERNMENT ALL COMPLETED AND UNCOMPLETED WORK TOGETHER
WITH ALL MANUFACTURING MATERIALS ACQUIRED BY RICE FOR BUILDING THE
BOATS.  PETITIONERS FURNISHED VARIOUS MATERIALS TO RICE FOR USE IN
CONSTRUCTION OF THE BOATS.  UPON RICE'S DEFAULT, THE GOVERNMENT
EXERCISED ITS OPTION AS TO 10 OF THE BOAT HULLS STILL UNDER
CONSTRUCTION; RICE EXECUTED AN ITEMIZED "INSTRUMENT OF TRANSFER OF
TITLE" CONVEYING TO THE UNITED STATES THE HULLS AND ALL MANUFACTURING
MATERIALS THEN ON HAND; AND THE GOVERNMENT REMOVED ALL OF THESE
PROPERTIES TO OUT-OF-STATE NAVAL SHIPYARDS FOR USE IN THE COMPLETION OF
THE BOATS.  WHEN THE TRANSFER OCCURRED, PETITIONERS HAD NOT BEEN PAID
FOR THEIR MATERIALS AND THEY HAVE NOT BEEN PAID SINCE.  PETITIONERS
THEREFORE CONTENDED THAT THEY HAD LIENS UNDER MAINE LAW WHICH PROVIDES
THAT "WHOEVER FURNISHES LABOR OR MATERIALS FOR BUILDING A VESSEL HAS A
LIEN ON IT THEREFOR, WHICH MAY BE ENFORCED BY ATTACHMENT THEREOF WITHIN
4 DAYS AFTER IT IS LAUNCHED  ...  .  HE ALSO HAS A LIEN ON THE
MATERIALS FURNISHED BEFORE THEY BECOME PART OF THE VESSEL, WHICH MAY BE
ENFORCED BY ATTACHMENT  ...  ."  MAINE REV. STAT., 1954, C. 178, SEC.
13. 

CLAIMING VALID LIENS ON THE HULLS AND MANUFACTURING MATERIALS AT THE
TIME THEY WERE TRANSFERRED BY RICE TO THE UNITED STATES, PETITIONERS
ASSERTED THAT THE GOVERNMENT'S ACTION DESTROYED THEIR LIENS BY MAKING
THEM UNENFORCEABLE AND THAT THIS CONSTITUTED A TAKING OF THEIR PROPERTY
WITHOUT JUST COMPENSATION IN VIOLATION OF THE FIFTH AMENDMENT.  (FN1)
THE COURT OF CLAIMS, RELYING ON UNITED STATES V. ANSONIA BRASS & COPPER
CO., 218 U.S. 452, HELD THAT PETITIONERS NEVER ACQUIRED VALID LIENS ON
THE HULLS OR THE MATERIALS TRANSFERRED TO THE GOVERNMENT AND THAT
THEREFORE THERE HAD BEEN NO TAKING OF ANY PROPERTY OWNED BY THEM.  -
CT. CL. - , 169 F. SUPP. 259.  WE GRANTED CERTIORARI.  361 U.S. 812. 

    I. 

THE COURT OF CLAIMS REACHED ITS CONCLUSION FROM THE CORRECT PREMISE
THAT LABORERS AND MATERIALMEN CAN ACQUIRE NO LIENS ON A "PUBLIC WORK." 
HILL V. AMERICAN SURETY CO., 100 U.S. 197, 203; EQUITABLE SURETY CO. V.
MCMILLAN, 234 U.S. 448, 455; UNITED STATES V. MUNSEY TRUST CO., 332
U.S. 234, 241.  IT REASONED THAT BECAUSE THE CONTRACT BETWEEN RICE AND
THE UNITED STATES CONTEMPLATED THAT TITLE TO THE VESSELS WOULD
EVENTUALLY VEST IN THE GOVERNMENT, THE GOVERNMENT HAD "INCHOATE TITLE"
TO THE MATERIALS SUPPLIED BY PETITIONERS, RENDERING SUCH MATERIALS
"PUBLIC WORKS" IMMUNE FROM THE OUTSET TO PETITIONERS' LIENS.  WE CANNOT
AGREE THAT A MERE PROSPECT THAT PROPERTY WILL LATER BE OWNED BY THE
UNITED STATES RENDERS THAT PROPERTY IMMUNE FROM OTHERWISE VALID LIENS. 

THE SOVEREIGN'S IMMUNITY AGAINST MATERIALMEN'S LIENS HAS NEVER BEEN
EXTENDED BEYOND PROPERTY ACTUALLY OWNED BY IT.  THE ANSONIA CASE
ITSELF, UPON WHICH THE COURT OF CLAIMS RELIED, MAKES THIS CLEAR, WHERE
IN DEALING WITH ONE ASPECT OF THE ISSUES THERE INVOLVED, THE COURT
SAID: 

"WE ARE NOT NOW DEALING WITH THE RIGHT OF A STATE TO PROVIDE FOR SUCH
LIENS WHILE PROPERTY TO THE CHATTEL IN PROCESS OF CONSTRUCTION REMAINS
IN THE BUILDER, WHO MAY BE CONSTRUCTING THE SAME WITH A VIEW TO
TRANSFERRING TITLE THEREIN TO THE UNITED STATES UPON ITS ACCEPTANCE
UNDER A CONTRACT WITH THE GOVERNMENT.  WE ARE NOW TREATING OF PROPERTY
WHICH THE UNITED STATES OWNS.  SUCH PROPERTY, FOR THE MOST OBVIOUS
REASONS OF PUBLIC POLICY, CANNOT BE SEIZED BY AUTHORITY OF ANOTHER
SOVEREIGNTY AGAINST THE CONSENT OF THE GOVERNMENT."  218 U.S., AT 471. 

THE TERMS OF THE CONTRACT BETWEEN RICE AND THE UNITED STATES SHOW
CONCLUSIVELY THAT RICE, NOT THE UNITED STATES, HAD TITLE TO THE
PROPERTY WHEN PETITIONERS FURNISHED THEIR MATERIALS.  THE AGREEMENT
PROVIDED FOR DELIVERY, PRELIMINARY ACCEPTANCE, AND FINAL ACCEPTANCE OF
THE BOATS, THE CONTRACTOR TO REMAIN RESPONSIBLE FOR ALL SUPPLIES UNTIL
DELIVERY.  THE CONTRACTOR WAS REQUIRED TO INSURE THE PROPERTY FOR THE
GOVERNMENT'S BENEFIT ONLY TO THE EXTENT OF PROGRESS PAYMENTS MADE AND
MATERIALS FURNISHED BY THE GOVERNMENT.  THE VERY CLAUSE HERE INVOKED BY
THE GOVERNMENT PROVIDED THAT UPON DEFAULT AND TERMINATION OF THE
CONTRACT THE GOVERNMENT MIGHT "REQUIRE THE CONTRACTOR TO TRANSFER TITLE
AND DELIVER" THE WORK, SUPPLIES AND MATERIALS ON HAND.  WHILE THE
GOVERNMENT WAS OBLIGED TO MAKE PROGRESS PAYMENTS BASED ON THE
PERCENTAGE OF THE WORK COMPLETED, NOTHING IN THE CONTRACT PROVIDED THAT
OWNERSHIP OF THE PORTION OF THE WORK PAID FOR SHOULD VEST IN THE UNITED
STATES.  ON THE CONTRARY, IT WAS STIPULATED THAT ALL PROGRESS PAYMENTS
SHOULD BE SECURED BY A PARAMOUNT GOVERNMENT LIEN ON THE PROPERTY.  AND
FINALLY, THE CONTRACTOR WAS REQUIRED TO DISCHARGE IMMEDIATELY ANY LIEN
OR RIGHT IN REM ASSERTED AGAINST THE PROPERTY.  IN THEIR TOTALITY,
THESE PROVISIONS CLEARLY RECOGNIZE THAT TITLE WAS TO REMAIN IN RICE
DURING PERFORMANCE OF THE WORK, AND SHOW THAT PRIVATE LIENS COULD
ATTACH TO THE PROPERTY WHILE RICE OWNED IT. 

WE THINK, THEREFORE, THAT THE COURT OF CLAIMS WAS IN ERROR IN HOLDING
AS IT DID.  THIS, HOWEVER, DOES NOT END THE CASE IN PETITIONERS' FAVOR
SINCE THE UNITED STATES URGES OTHER GROUNDS TO SUPPORT ITS JUDGMENT. 

              II. 

IT IS CONTENDED THAT PETITIONERS' ASSERTED LIENS GAVE THEM NO
COMPENSABLE PROPERTY INTERESTS WITHIN THE MEANING OF THE FIFTH
AMENDMENT.  UNDER MAINE LAW, MATERIALMEN BECOME ENTITLED TO A LIEN WHEN
THEY FURNISH SUPPLIES; HOWEVER, THE LIEN MUST SUBSEQUENTLY BE ENFORCED
BY ATTACHMENT OF THE VESSEL OR SUPPLIES.  THERE IS NO ALLEGATION THAT
ANY OF THE PETITIONERS HAD TAKEN STEPS TO ATTACH THE UNCOMPLETED WORK. 
NEVERTHELESS, THEY WERE ENTITLED TO RESORT TO THE SPECIFIC PROPERTY FOR
THE SATISFACTION OF THEIR CLAIMS.  THAT SUCH A RIGHT IS COMPENSABLE BY
VIRTUE OF THE FIFTH AMENDMENT WAS DECIDED IN LOUISVILLE BANK V.
RADFORD, 295 U.S. 555.  IN THAT CASE, A BANK ACQUIRED A MORTGAGE WHICH
UNDER STATE LAW CONSTITUTED A LIEN ENFORCEABLE ONLY BY SUIT TO
FORECLOSE.  SUBSEQUENTLY, CONGRESS AMENDED THE BANKRUPTCY ACT SO AS TO
DEPRIVE MORTGAGEES OF SUBSTANTIAL INCIDENTS OF THEIR RIGHTS TO RESORT
TO MORTGAGED PROPERTY.  THIS COURT HELD THAT THE BANK'S PROPERTY HAD
BEEN TAKEN WITHOUT JUST COMPENSATION IN VIOLATION OF THE FIFTH
AMENDMENT.  NO REASON HAS BEEN SUGGESTED WHY THE NATURE OF THE LIENS
HELD BY PETITIONERS SHOULD BE REGARDED AS ANY DIFFERENT, FOR THIS
PURPOSE, FROM THE INTEREST OF THE BANK HELD COMPENSABLE IN THE RADFORD
CASE. 

THE GOVERNMENT, HOWEVER, SUGGESTS THAT BECAUSE IT HELD A PARAMOUNT
LIEN ON THE PROPERTY TO SECURE ITS PROGRESS PAYMENTS, PETITIONERS'
CLAIMED LIENS WERE IN FACT WORTHLESS.  PETITIONERS, ON THE OTHER HAND,
ARGUE THAT WHEN THE GOVERNMENT CHOSE TO ACQUIRE TITLE TO THE PROPERTY
RATHER THAN TO ENFORCE ITS LIEN, THE LIEN MERGED WITH THE TITLE, THUS
MAKING PETITIONERS' LIENS PARAMOUNT, AND THAT EVEN IF IT DID NOT, AND
THEIR LIENS REMAINED SUBORDINATE TO THAT OF THE GOVERNMENT, THE VALUE
OF THE HULLS AND MATERIALS WOULD HAVE BEEN SUFFICIENT TO SATISFY THE
GOVERNMENT'S CLAIMS AND SOME OR ALL OF PETITIONERS' CLAIMS AS WELL. 

WE NEED NOT DECIDE WHETHER, AS A MATTER OF LAW, THE GOVERNMENT'S LIEN
"MERGED" IN ITS TITLE.  AT THE VERY LEAST, PETITIONERS, PRIOR TO THE
TRANSFER OF TITLE, HAD THE RIGHT TO WHATEVER PROCEEDS THE PROPERTY
MIGHT BRING OVER AND ABOVE THE GOVERNMENT'S CLAIM TO THE AMOUNT OF ITS
PROGRESS PAYMENTS.  (FN2)  BY THE DATE OF DEFAULT, RICE HAD EXPENDED
SOME $198,000, WHILE THE GOVERNMENT HAD ADVANCED ONLY ABOUT $141,000 IN
PROGRESS PAYMENTS.  WE HAVE NO WAY OF KNOWING WHAT THE PROPERTY WOULD
HAVE BROUGHT HAD IT BEEN SOLD, BUT IT CANNOT BE SAID WITH CERTAINTY
THAT IT WOULD HAVE BROUGHT NO MORE THAN THE AMOUNT OF THE GOVERNMENT'S
CLAIM.  MOREOVER, PETITIONERS THEMSELVES MIGHT HAVE BEEN ABLE TO
PURCHASE THE PROPERTY AND REALIZE SOME AMOUNT ON THEIR CLAIMS AFTER THE
GOVERNMENT'S CLAIMS HAD BEEN SATISFIED.  WHILE THESE FACTORS MAY
PRESENT A DIFFICULT PROBLEM OF VALUATION, WE CANNOT SAY ON THIS RECORD
THAT PETITIONERS' INTERESTS WERE VALUELESS.  (FN3) 

THE GOVERNMENT ALSO SEEMS TO SUGGEST THAT BECAUSE THE CONTRACT
BETWEEN RICE AND THE UNITED STATES EXPRESSLY GAVE THE GOVERNMENT THE
OPTION OF REQUIRING A CONVEYANCE OF TITLE UPON DEFAULT, PETITIONERS'
LIENS ATTACHED SUBJECT TO THAT LIMITATION.  PETITIONERS, HOWEVER, WERE
NOT PARTIES TO THE CONTRACT.  FURTHERMORE, THEIR LIENS ATTACHED BY
OPERATION OF LAW AND NOTHING IN THE RECORD INDICATES THAT THE SCOPE OF
SUCH LIENS IS AFFECTED BY CONTRACTUAL ARRANGEMENTS INTO WHICH THE OWNER
OF THE PROPERTY MAY HAVE ENTERED. 

WE CONCLUDE, THEREFORE, THAT ON THIS RECORD PETITIONERS MUST BE
CONSIDERED TO HAVE HAD COMPENSABLE PROPERTY INTERESTS WITHIN THE
MEANING OF THE FIFTH AMENDMENT PRIOR TO TRANSFER OF TITLE TO THE
GOVERNMENT. 

                       III. 

THE FINAL QUESTION IS WHETHER THE GOVERNMENT'S ACTION CONSTITUTED A
"TAKING" OF PETITIONERS' PROPERTY INTERESTS WITHIN THE MEANING OF THE
FIFTH AMENDMENT.  BEFORE THE UNITED STATES COMPELLED RICE TO TRANSFER
THE HULLS AND ALL MATERIALS HELD FOR FUTURE USE IN BUILDING THE BOATS,
PETITIONERS HAD VALID LIENS UNDER MAINE LAW AGAINST BOTH THE HULLS AND
WHATEVER UNUSED MATERIALS WHICH PETITIONERS HAD FURNISHED.  BEFORE
TRANSFER THESE LIENS WERE ENFORCEABLE BY ATTACHMENT AGAINST BOTH THE
HULLS AND ALL MATERIALS.  AFTER TRANSFER TO THE UNITED STATES THE LIENS
WERE STILL VALID, UNITED STATES V. ALABAMA, 313 U.S. 274, 281-282, BUT
THEY COULD NOT BE ENFORCED BECAUSE OF THE SOVEREIGN IMMUNITY OF THE
GOVERNMENT AND ITS PROPERTY FROM SUIT.  (FN4)  THE RESULT OF THIS WAS A
DESTRUCTION OF ALL PETITIONERS' PROPERTY RIGHTS UNDER THEIR LIENS,
ALTHOUGH, AS WE HAVE POINTED OUT, THE LIENS WERE VALID AND HAD
COMPENSABLE VALUE.  PETITIONERS CONTEND THAT DESTRUCTION OF THEIR LIENS
UNDER THE CIRCUMSTANCES HERE IS A "TAKING."  THE UNITED STATES DENIES
THIS, LARGELY ON THE PREMISE THAT INABILITY OF PETITIONERS TO ENFORCE
THEIR LIENS BECAUSE OF IMMUNITY OF THE GOVERNMENT AND ITS PROPERTY FROM
SUIT CANNOT AMOUNT TO A "TAKING." 

THE GOVERNMENT ARGUES THAT THE ANSONIA CASE IS DISPOSITIVE OF THIS
FIFTH AMENDMENT ISSUE.  IN THIS CASE, THE CONTRACT BETWEEN THE
SHIPBUILDER AND THE UNITED STATES PROVIDED, AS TO ONE OF THE SHIPS
CONTRACTED FOR, THE DREDGE BENYUARD, THAT AS PROGRESS PAYMENTS WERE
MADE, THE PORTION OF THE WORK PAID FOR SHOULD BECOME THE PROPERTY OF
THE UNITED STATES.  SUBCONTRACTORS CLAIMED LIENS ON THE UNCOMPLETED
VESSEL UNDER THE VIRGINIA SUPPLY-LIEN LAW.  THIS COURT MERELY HELD
THAT, AS THE PROPERTY HAD PASSED TO THE UNITED STATES BY VIRTUE OF THE
TERMS OF THE CONTRACT, NO LIEN COULD BE ENFORCED AGAINST IT.  NO
QUESTION WAS RAISED AS TO THE RIGHTS POSSESSED BY THE SUBCONTRACTORS
PRIOR TO THE ACQUISITION OF TITLE BY THE UNITED STATES NOR AS TO
WHETHER THAT EVENT ENTITLED THEM TO JUST COMPENSATION UNDER THE FIFTH
AMENDMENT.  THERE IS, TO BE SURE, REASON TO BELIEVE THAT THE
SUBCONTRACTORS' LIENS IN THAT CASE, LIKE THOSE OF PETITIONERS HERE, DID
ATTACH AS SOON AS MATERIALS WERE FURNISHED, WHICH WOULD NECESSARILY BE
PRIOR TO THE MAKING OF A PROGRESS PAYMENT FOR THE PORTION OF THE WORK
INCORPORATING THOSE MATERIALS AND THE CONSEQUENT PASSAGE OF TITLE TO
THE UNITED STATES.  SEE HAWES & CO. V. TRIGG CO., 110 VA. 165, 185-186,
199, 65 S.E. 538, 546-547, 551-552.  BUT THE FIFTH AMENDMENT QUESTION
WAS NOT RAISED OR PASSED UPON.  IN THESE CIRCUMSTANCES WE CANNOT REGARD
THE COURT'S DECISION AS DISPOSITIVE ON THE PRECISE POINT NOW UNDER
CONSIDERATION, AND MUST PROCEED TO DECIDE THAT QUESTION.  (FN5) 

WE HOLD THAT THERE WAS A TAKING OF THESE LIENS FOR WHICH JUST
COMPENSATION IS DUE UNDER THE FIFTH AMENDMENT.  IT IS TRUE THAT NOT
EVERY DESTRUCTION OR INJURY TO PROPERTY BY GOVERNMENTAL ACTION HAS BEEN
HELD TO BE A "TAKING" IN THE CONSTITUTIONAL SENSE.  OMNIA COMMERCIAL
CO. V. UNITED STATES, 261 U.S. 502, 508-510.  THIS CASE AND MANY OTHERS
REVEAL THE DIFFICULTY OF TRYING TO DRAW THE LINE BETWEEN WHAT
DESTRUCTIONS OF PROPERTY BY LAWFUL GOVERNMENTAL ACTIONS ARE COMPENSABLE
"TAKINGS" AND WHAT DESTRUCTIONS ARE "CONSEQUENTIAL" AND THEREFORE NOT
COMPENSABLE.  SEE, E.G., UNITED STATES V. CENTRAL EUREKA MINING CO.,
357 U.S. 155; UNITED STATES V. CAUSBY, 328 U.S. 256; UNITED STATES V.
GENERAL MOTORS CORP., 323 U.S. 373; UNITED STATES V. SPONENBARGER, 308
U.S. 256; PENNSYLVANIA COAL CO. V. MAHON, 260 U.S. 393; LOUISVILLE &
NASHVILLE R. CO. V. MOTTLEY, 219 U.S. 467; LEGAL TENDER CASES, 12
WALL.  457, 551.    THE TOTAL DESTRUCTION BY THE GOVERNMENT OF ALL
VALUE OF THESE LIENS, WHICH CONSTITUTE COMPENSABLE PROPERTY, HAS EVERY
POSSIBLE ELEMENT OF A FIFTH AMENDMENT "TAKING" AND IS NOT A MERE
"CONSEQUENTIAL INCIDENCE" OF A VALID REGULATORY MEASURE.  BEFORE THE
LIENS WERE DESTROYED, THE LIENHOLDERS ADMITTEDLY HAD COMPENSABLE
PROPERTY.  IMMEDIATELY AFTERWARDS, THEY HAD NONE.  THIS WAS NOT BECAUSE
THEIR PROPERTY VANISHED INTO THIN AIR.  IT WAS BECAUSE THE GOVERNMENT
FOR ITS OWN ADVANTAGE DESTROYED THE VALUE OF THE LIENS, SOMETHING THAT
THE GOVERNMENT COULD DO BECAUSE ITS PROPERTY WAS NOT SUBJECT TO SUIT,
BUT WHICH NO PRIVATE PURCHASER COULD HAVE DONE.  SINCE THIS ACQUISITION
WAS FOR A PUBLIC USE, HOWEVER ACCOMPLISHED, WHETHER WITH AN INTENT AND
PURPOSE OF EXTINGUISHING THE LIENS OR NOT, THE GOVERNMENT'S ACTION DID
DESTROY THEM AND IN THE CIRCUMSTANCES OF THIS CASE DID THEREBY TAKE THE
PROPERTY VALUE OF THOSE LIENS WITHIN THE MEANING OF THE FIFTH
AMENDMENT.  NEITHER THE BOATS' IMMUNITY, AFTER BEING ACQUIRED BY THE
GOVERNMENT, FROM ENFORCEMENT OF THE LIENS NOR THE USE OF A CONTRACT TO
TAKE TITLE RELIEVES THE GOVERNMENT FROM ITS CONSTITUTIONAL OBLIGATION
TO PAY JUST COMPENSATION FOR THE VALUE OF THE LIENS THE PETITIONERS
LOST AND OF WHICH LOSS THE GOVERNMENT WAS THE DIRECT, POSITIVE
BENEFICIARY. 

THE FIFTH AMENDMENT'S GUARANTEE THAT PRIVATE PROPERTY SHALL NOT BE
TAKEN FOR A PUBLIC USE WITHOUT JUST COMPENSATION WAS DESIGNED TO BAR
GOVERNMENT FROM FORCING SOME PEOPLE ALONE TO BEAR PUBLIC BURDENS WHICH,
IN ALL FAIRNESS AND JUSTICE, SHOULD BE BORNE BY THE PUBLIC AS A WHOLE. 
A FAIR INTERPRETATION OF THIS CONSTITUTIONAL PROTECTION ENTITLES THESE
LIENHOLDERS TO JUST COMPENSATION HERE.  CF. THIBODO V. UNITED STATES,
187 F.2D 249. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF
CLAIMS FOR FURTHER PROCEEDINGS TO DETERMINE THE VALUE OF THE PROPERTY
TAKEN.  REVERSED AND REMANDED. 

FN1  THE RELEVANT PORTION OF THE FIFTH AMENDMENT PROVIDES, "  ...
NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST
COMPENSATION." 

FN2  WHILE RICE WAS ALSO LIABLE TO THE GOVERNMENT FOR AN ADDITIONAL
AMOUNT APPROXIMATING $146,000 REPRESENTING THE EXCESS COST TO THE
GOVERNMENT OF HAVING THE BOATS COMPLETED, THE CONTRACT DOES NOT
PROVIDE, AND THERE IS NO ALLEGATION, THAT THIS AMOUNT WAS SECURED BY A
LIEN ON THE PROPERTY. 

FN3  QUESTIONS OF VALUE OF THE LIENS WERE NOT DETERMINED BY THE COURT
OF CLAIMS SINCE IT ENTERED A SUMMARY JUDGMENT FOR THE UNITED STATES FOR
REASONS STATED ON P. 42, SUPRA. 

FN4  UNITED STATES V. ANSONIA BRASS & COPPER CO., 218 U.S. 452; HILL
V. AMERICAN SURETY CO., 200 U.S. 197; EQUITABLE SURETY CO. V. MCMILLAN,
234 U.S. 448; UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234; THE
SIREN, 7 WALL.  152; MINNESOTA V. UNITED STATES, 305 U.S. 382; UNITED
STATES V. ALABAMA, 313 U.S. 274. 

FN5  THE GOVERNMENT ALSO CITES MULLEN BENEVOLENT CORP. V. UNITED
STATES, 290 U.S. 89.  THE FACTS THERE, HOWEVER, REVEALED THAT THE
GOVERNMENT'S ACTION COULD NOT HAVE DESTROYED ANY LIENS EXISTING AT THE
TIME THE GOVERNMENT ACQUIRED THE LAND BECAUSE AS THE COURT SAID, "NONE
REMAINED UPON THE LAND, WHEN THE PURCHASES WERE CONSUMMATED," 290 U.S.,
AT 95. 

MR. JUSTICE STEWART CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
CLARK JOIN, DISSENTING. 

I AGREE THAT PETITIONERS HAD VALID LIENS ON THE UNCOMPLETED WORK AND
SUPPLIES AT THE TIME THE PROPERTY WAS TRANSFERRED TO THE GOVERNMENT,
AND THAT SUCH LIENS REPRESENTED COMPENSABLE PROPERTY INTERESTS WITHIN
THE MEANING OF THE FIFTH AMENDMENT.  BUT THE FIFTH AMENDMENT RENDERS
THE GOVERNMENT LIABLE ONLY IF THERE WAS A "TAKING" BY IT OF SUCH
INTERESTS.  I CANNOT CONCLUDE, AS THE COURT SO READILY DOES, THAT
SIMPLY BECAUSE THE VALUE OF THOSE LIENS WAS "DESTROYED" THERE WAS A
"TAKING" OF PETITIONERS' PROPERTY. 

AS THE COURT CONCEDES, NOT EVERY GOVERNMENTAL ACT WHICH ULTIMATELY
DESTROYS PROPERTY RIGHTS CONSTITUTES A COMPENSABLE TAKING OF THOSE
RIGHTS.  WE ARE NOT HERE DEALING WITH A SITUATION IN WHICH THE UNITED
STATES HAS CONDEMNED THE FULL FEE INTEREST IN PROPERTY, THUS PURPORTING
TO EXTINGUISH ALL CLAIMS THEREIN.  IN SUCH A CASE, IT MAY WELL BE THAT
LIENHOLDERS ARE ENTITLED TO COMPENSATION FOR THE VALUE OF THEIR
INTERESTS.  SEE THIBODO V. UNITED STATES, 187 F.2D 249; CF. UNITED
STATES V. GENERAL MOTORS CORP., 323 U.S. 373, 377-378.  IN THIS
INSTANCE, HOWEVER, THE GOVERNMENT HAS NOT EXERCISED ITS POWER OF
EMINENT DOMAIN WITH THE INTENT AND PURPOSE OF EXTINGUISHING
PETITIONERS' LIENS; INDEED IT HAS NOT EXERCISED ITS POWER OF EMINENT
DOMAIN AT ALL.  ALL IT HAS DONE IS TO EXERCISE ITS UNDOUBTED POWER TO
CONTRACT AND TO ACQUIRE TITLE TO THE PROPERTY, THE CONSEQUENT EFFECT OF
WHICH IS TO RENDER THE LIENS UNENFORCEABLE BECAUSE OF THE INDEPENDENT
PRINCIPLE OF SOVEREIGN IMMUNITY.  THE VERY NATURE OF THE DOCTRINE OF
SOVEREIGN IMMUNITY PRECLUDES REGARDING ITS INTERPOSITION AS A FIFTH
AMENDMENT "TAKING."  IT SEEMS TO ME THAT A COURT WHICH, HAVING
ESTABLISHED THIS IMMUNITY, THEN DECLARES THAT THE GOVERNMENT MUST PAY
FOR EXERCISING IT, IS EFFECTIVELY NEGATIVING IT. 

I WOULD AFFIRM. 
..END :












UNITED STATES V. DEGE 364 U.S. 51 


NO. 14.  ARGUED OCTOBER 20, 1959 - DECIDED JUNE 27, 1960 - ORDER
DISMISSING INDICTMENT REVERSED. 


A HUSBAND AND WIFE ARE NOT LEGALLY INCAPABLE OF VIOLATING 18 U.S.C.
SEC. 371 BY CONSPIRING WITH EACH OTHER TO COMMIT AN OFFENSE AGAINST THE
UNITED STATES.  PP. 51-55. 

UNITED STATES V. DEGE ET VIR. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN INDICTMENT CHARGING HUSBAND AND WIFE WITH CONSPIRING TO
COMMIT AN OFFENSE AGAINST THE UNITED STATES IN VIOLATION OF SEC. 371 OF
TITLE 18 OF THE U.S.C.  WHICH WAS ENACTED BY CONGRESS ON JUNE 25, 1948,
62 STAT. 683, 701, IN CONNECTION WITH SEC. 545 OF THAT CODE, ID., 716,
IN THAT THEY SOUGHT ILLICITLY TO BRING GOODS INTO THE UNITED STATES
WITH INTENT TO DEFRAUD IT.  ON AUTHORITY OF CONTROLLING DECISIONS OF
ITS CIRCUIT, DAWSON V. UNITED STATES, 10 F.2D 106, AND GROS V. UNITED
STATES, 138 F.2D 261, THE DISTRICT COURT DISMISSED THE INDICTMENT ON
THE GROUND THAT IT DID NOT STATE AN OFFENSE, TO WIT, A HUSBAND AND WIFE
ARE LEGALLY INCAPABLE OF CONSPIRING WITHIN THE CONDEMNATION OF SEC.
371.  THE CASE CAME HERE ON DIRECT REVIEW OF THE ORDER DISMISSING THE
INDICTMENT, 358 U.S. 944, UNDER THE CRIMINAL APPEALS ACT OF MARCH 2,
1907, NOW 18 U.S.C. SEC. 3731.  THE CONSTRUCTION OF SEC. 371 BY THE
COURT OF APPEALS FOR THE NINTH CIRCUIT HAS BEEN EXPLICITLY REJECTED BY
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, JOHNSON V.
UNITED STATES, 81 U.S. APP. D.C. 254, 157 F.2D 209, AND BY THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT, THOMPSON V. UNITED STATES, 227 F.2D 671,
AND WRIGHT V. UNITED STATES, 243 F.2D 569. 

THE QUESTION RAISED BY THESE CONFLICTING VIEWS IS CLEARCUT AND
UNCOMPLICATED.  THE CLAIM THAT HUSBAND AND WIFE ARE OUTSIDE THE SCOPE
OF AN ENACTMENT OF CONGRESS IN 1948, MAKING IT AN OFFENSE FOR TWO
PERSONS TO CONSPIRE, MUST BE GIVEN SHORT SHRIFT ONCE WE HEED THE
ADMONITION OF THIS COURT THAT "WE FREE OUR MINDS FROM THE NOTION THAT
CRIMINAL STATUTES MUST BE CONSTRUED BY SOME ARTIFICIAL AND CONVENTIONAL
RULE," UNITED STATES V. UNION SUPPLY CO., 215 U.S. 50, 55, AND
THEREFORE DO NOT ALLOW OURSELVES TO BE OBFUSCATED BY MEDIEVAL VIEWS
REGARDING THE LEGAL STATUS OF WOMAN AND THE COMMON LAW'S REFLECTION OF
THEM.  CONSIDERING THAT LEGITIMATE BUSINESS ENTERPRISES BETWEEN HUSBAND
AND WIFE HAVE LONG BEEN COMMONPLACES IN OUR TIME, IT WOULD ENTHRONE AN
UNREALITY INTO A RULE OF LAW TO SUGGEST THAT MAN AND WIFE ARE LEGALLY
INCAPABLE OF ENGAGING IN ILLICIT ENTERPRISES AND THEREFORE, FORSOOTH,
DO NOT ENGAGE IN THEM. 

NONE OF THE CONSIDERATIONS OF POLICY TOUCHING THE LAW'S ENCOURAGEMENT
OR DISCOURAGEMENT OF DOMESTIC FELICITIES ON THE BASIS OF WHICH THIS
COURT DETERMINED APPROPRIATE RULES FOR TESTIMONIAL COMPULSION AS
BETWEEN SPOUSES, HAWKINS V. UNITED STATES, 358 U.S. 74, AND WYATT V.
UNITED STATES, 362 U.S. 525, ARE RELEVANT TO YIELDING TO THE CLAIM THAT
AN UNQUALIFIED INTERDICTION BY CONGRESS AGAINST A CONSPIRACY BETWEEN
TWO PERSONS PRECLUDES A HUSBAND AND WIFE FROM BEING TWO PERSONS.  SUCH
AN IMMUNITY TO HUSBAND AND WIFE AS A PAIR OF CONSPIRATORS WOULD HAVE TO
ATTRIBUTE TO CONGRESS ONE OF TWO ASSUMPTIONS:  EITHER THAT
RESPONSIBILITY OF HUSBAND AND WIFE FOR JOINT PARTICIPATION IN A
CRIMINAL ENTERPRISE WOULD MAKE FOR MARITAL DISHARMONY, OR THAT A WIFE
MUST BE PRESUMED TO ACT UNDER THE COERCIVE INFLUENCE OF HER HUSBAND
AND, THEREFORE, CANNOT BE A WILLING PARTICIPANT.  THE FORMER ASSUMPTION
IS UNNOURISHED BY SENSE; THE LATTER IMPLIES A VIEW OF AMERICAN
WOMANHOOD OFFENSIVE TO THE ETHOS OF OUR SOCIETY. 

THE FACT OF THE MATTER IS THAT WE ARE ASKED TO WRITE INTO LAW A
DOCTRINE THAT PARROT-LIKE HAS BEEN REPEATED IN DECISIONS AND TEXTS FROM
WHAT WAS GIVEN ITS AUTHORITATIVE EXPRESSION BY HAWKINS EARLY IN THE
EIGHTEENTH CENTURY.  HE WROTE: 

"IT PLAINLY APPEARS FROM THE WORDS OF THE STATUTE, THAT ONE PERSON
ALONE CANNOT BE GUILTY OF CONSPIRACY WITHIN THE PURPORT OF IT; FROM
WHENCE IT FOLLOWS,  ...  THAT NO SUCH PROSECUTION IS MAINTAINABLE
AGAINST A HUSBAND AND WIFE ONLY, BECAUSE THEY ARE ESTEEMED BUT AS ONE
PERSON IN LAW, AND ARE PRESUMED TO HAVE BUT ONE WILL."  (HAWKINS, PLEAS
OF THE CROWN, 4TH ED. 1762, BK. I, CHAP. LXXII, SECT.  8, P. 192.) 

THE PRONOUNCEMENT OF HAWKINS APPARENTLY RESTS ON A CASE IN A YEAR
BOOK OF 38 EDWARD III, DECIDED IN 1365.  THE LEARNING INVOKED FOR THIS
ANCIENT DOCTRINE HAS BEEN QUESTIONED BY MODERN SCHOLARSHIP.  SEE
WILLIAMS, THE LEGAL UNITY OF HUSBAND AND WIFE, 10 MOD. L. REV., 16
(1947); AND CF. WINFIELD, THE HISTORY OF CONSPIRACY (1921), SEC. 27, P.
64, AND SEC. 37, P. 88.  BUT IN ANY EVENT THE ANSWER TO HAWKINS WITH
HIS YEAR BOOK AUTHORITY, AS A BASIS FOR A DECISION BY THE SUPREME COURT
OF THE UNITED STATES IN 1960 CONSTRUING A STATUTE ENACTED IN 1948, WAS
DEFINITIVELY MADE LONG AGO BY MR. JUSTICE HOLMES: 

"IT IS REVOLTING TO HAVE NO BETTER REASON FOR A RULE OF LAW THAN THAT
SO IT WAS LAID DOWN IN THE TIME OF HENRY IV.  IT IS STILL MORE
REVOLTING IF THE GROUNDS UPON WHICH IT WAS LAID DOWN HAVE VANISHED LONG
SINCE, AND THE RULE SIMPLY PERSISTS FROM BLIND IMITATION OF THE PAST." 
HOLMES, COLLECTED LEGAL PAPERS, 187 (1920), REPRINTING THE PATH OF THE
LAW, 10 HARV. L. REV. 457, 469 (1897). 

FOR THIS COURT NOW TO ACT ON HAWKIN'S FORMULATION OF THE MEDIEVAL
VIEW THAT HUSBAND AND WIFE "ARE ESTEEMED BUT AS ONE PERSON IN LAW, AND
ARE PRESUMED TO HAVE BUT ONE WILL" WOULD INDEED BE "BLIND IMITATION OF
THE PAST."  IT WOULD REQUIRE US TO DISREGARD THE VAST CHANGES IN THE
STATUS OF WOMAN - THE EXTENSION OF HER RIGHTS AND CORRELATIVE DUTIES -
WHEREBY A WIFE'S LEGAL SUBMISSION TO HER HUSBAND HAS BEEN WHOLLY WIPED
OUT, NOT ONLY IN THE ENGLISH-SPEAKING WORLD GENERALLY BUT EMPHATICALLY
SO IN THIS COUNTRY. 

HOW FAR REMOVED WE WERE EVEN NEARLY A CENTURY AGO WHEN CONGRESS
PASSED THE ORIGINAL STATUTE AGAINST CRIMINAL CONSPIRACY, THE ACT OF
MARCH 2, 1867, 14 STAT. 484, FROM THE LEGAL AND SOCIAL CLIMATE OF
EIGHTEENTH CENTURY COMMON LAW REGARDING THE STATUS OF WOMAN IS PITHILY
ILLUSTRATED BY RECALLING THE SELF-DELUDING ROMANTICISM OF BLACKSTONE,
WHEREBY HE COULD CONSCIENTIOUSLY MAINTAIN THAT "EVEN THE DISABILITIES,
WHICH THE WIFE LIES UNDER, ARE FOR THE MOST PART INTENDED FOR HER
PROTECTION AND BENEFIT.  SO GREAT A FAVOURITE IS THE FEMALE SEX OF THE
LAWS OF ENGLAND."  BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND
(1765), BK. I, CH. 15, P. 433.  IT WOULD BE AN IDLE PARADE OF LEARNING
TO DOCUMENT THE STATEMENT THAT THESE COMMON-LAW DISABILITIES WERE
EXTENSIVELY SWEPT AWAY IN OUR DIFFERENT STATE OF SOCIETY, BOTH BY
LEGISLATION AND ADJUDICATION, LONG BEFORE THE ORIGINATING CONSPIRACY
ACT OF 1867 WAS PASSED.  SUFFICE IT TO SAY THAT WE CANNOT INFUSE INTO
THE CONSPIRACY STATUTE A FICTITIOUS ATTRIBUTION TO CONGRESS OF REGARD
FOR THE MEDIEVAL NOTION OF WOMAN'S SUBMISSIVENESS TO THE BENEVOLENT
COERCIVE POWERS OF A HUSBAND IN ORDER TO RELIEVE HER OF HER OBLIGATION
OF OBEDIENCE TO AN UNQUALIFIEDLY EXPRESSED ACT OF CONGRESS BY REGARDING
HER AS A PERSON WHOSE LEGAL PERSONALITY IS MERGED IN THAT OF HER
HUSBAND MAKING THE TWO ONE.  REVERSED. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

IF THE COURT'S OPINION REFLECTS ALL THAT THERE IS TO THIS CASE, IT IS
ASTONISHING THAT IT HAS TAKEN SO MANY YEARS FOR THE FEDERAL JUDICIARY
TO LOOSE ITSELF FROM THE MEDIEVAL CHAINS OF THE HUSBAND-WIFE CONSPIRACY
DOCTRINE.  THE PROBLEM, AS THE COURT SEES IT, IS ALMOST ABSURDLY
UNCOMPLICATED:  THE BASIS FOR THE NOTION THAT HUSBAND AND WIFE ARE NOT
SUBJECT TO A CONSPIRACY CHARGE IS THAT MAN AND WIFE ARE ONE; BUT WE
KNOW THAT MAN AND WIFE ARE TWO, NOT ONE; THEREFORE, THERE IS NO BASIS
FOR THE NOTION THAT HUSBAND AND WIFE ARE NOT SUBJECT TO A CONSPIRACY
CHARGE.  I SUBMIT THAT THIS SIMPLISTIC AN APPROACH WILL NOT DO. 

THE COURT APPARENTLY DOES NOT ASSERT THAT IF THE HUSBAND-WIFE
CONSPIRACY DOCTRINE WAS WIDELY ACCEPTED WHEN THE CONSPIRACY STATUTE WAS
PASSED IN 1867, 14 STAT. 484, AND THEREFORE WAS PRESUMABLY WITHIN
CONGRESS' UNDERSTANDING OF THE REACH OF THAT STATUTE, NONETHELESS THIS
COURT SHOULD NOW REJECT THE RULE BECAUSE IT FINDS IT NONSENSICAL. 
INSTEAD, THE COURT'S POSITION IS THAT: 

"IT WOULD BE AN IDLE PARADE OF LEARNING TO DOCUMENT THE STATEMENT
THAT THESE COMMON-LAW DISABILITIES OF WOMEN WERE EXTENSIVELY SWEPT AWAY
IN OUR DIFFERENT STATE OF SOCIETY, BOTH BY LEGISLATION AND
ADJUDICATION, LONG BEFORE THE ORIGINATING CONSPIRACY ACT OF 1867 WAS
PASSED." 

BUT, HOWEVER RAPIDLY NINETEENTH CENTURY JURISPRUDENCE MOVED TOWARD A
RECOGNITION OF THE INDIVIDUALITY OF WOMEN IN OTHER AREAS, IT IS WHOLLY
INACCURATE TO IMPLY THAT THE LAW OF CONSPIRACY CHANGED APACE.  IN FACT,
THE EARLIEST CASE REPUDIATING THE HUSBAND-WIFE DOCTRINE WHICH THE
GOVERNMENT HAS BEEN ABLE TO CITE IS DALTON V. PEOPLE, 68 COLO. 44, 189
P. 37, WHICH WAS DECIDED, AS THE GOVERNMENT PUTS IT, "AS EARLY AS
1920."  AND IF THE DOCTRINE IS AN ANACHRONISM TODAY, AS THE COURT SAYS,
ITS UNUSUAL HARDINESS IS DEMONSTRATED BY THE FACT THAT THE DECISION OF
THE COURT REPRESENTS A DEPARTURE FROM THE GENERAL RULE WHICH PREVAILS
TODAY IN THE ENGLISH-SPEAKING WORLD.  AS RECENTLY AS 1957, THE PRIVY
COUNCIL APPROVED THE HUSBAND-WIFE DOCTRINE, (FN1) AND OTHER
COMMONWEALTH COURTS ARE IN ACCORD.  (FN2)  FOR AMERICAN DECISIONS, SEE
ANNOT., 4 A.L.R. 266, 71 A.L.R. 1116, 46 A.L.R.2D 1275. 

THUS IT SEEMS CLEAR THAT IF THE 1867 STATUTE IS TO BE CONSTRUED TO
REFLECT CONGRESS' INTENT AS IT WAS IN 1867, THE COURT'S DECISION IS
ERRONEOUS.  AND I BELIEVE THAT WE MUST FOCUS UPON THAT INTENT, INASMUCH
AS THERE IS NO INDICATION THAT CONGRESS MEANT TO CHANGE THE LAW BY THE
1948 LEGISLATION WHICH RE-ENACTED WITHOUT MATERIAL VARIATION THE OLD
CONSPIRACY STATUTE.  (FN3)  SURELY WHEN A RULE OF LAW IS WELL
ESTABLISHED IN THE COMMON LAW AND IS PART OF THE LEGISLATIVE PURPOSE
WHEN A RELEVANT STATUTE IS PASSED, THAT RULE SHOULD NOT BE REJECTED BY
THIS COURT IN THE ABSENCE OF AN EXPLICIT SUBSEQUENT REPUDIATION OF IT
BY CONGRESS.  (FN4)  CONSEQUENTLY, I WOULD BE COMPELLED TO DISSENT
WHETHER OR NOT I BELIEVED THE RULE TO BE SUPPORTED BY REASON. 

BUT MORE, I CANNOT AGREE THAT THE RULE IS WITHOUT JUSTIFICATION. 
INASMUCH AS MR. JUSTICE HOLMES' OBSERVATION THAT IT IS "REVOLTING" TO
FOLLOW A DOCTRINE ONLY "FROM BLIND IMITATION OF THE PAST" IS HARDLY
NOVEL, THE TENACIOUS ADHERENCE OF THE JUDICIARY TO THE HUSBAND-WIFE
CONSPIRACY DOCTRINE INDICATES TO ME THAT THE RULE MAY BE PREDICATED
UPON UNDERLYING POLICIES UNCONNECTED WITH PROBLEMS OF WOMEN'S SUFFRAGE
OR CAPACITY TO SUE.  THE "DEFINITIVE ANSWER" TO THE QUESTION POSED BY
THIS CASE IS NOT TO BE FOUND IN A BREEZY APHORISM FROM THE COLLECTED
PAPERS OF MR. JUSTICE HOLMES, FOR "GENERAL PROPOSITIONS DO NOT DECIDE
CONCRETE CASES."  (FN5) 

IT IS NOT NECESSARY TO BE WEDDED TO FICTIONS TO APPROVE THE HUSBAND
WIFE CONSPIRACY DOCTRINE, FOR ONE OF THE DANGERS WHICH THAT DOCTRINE
AVERTS IS THE PROSECUTION AND CONVICTION OF PERSONS FOR "CONSPIRACIES"
WHICH CONGRESS NEVER MEANT TO BE INCLUDED WITHIN THE STATUTE.  A WIFE,
SIMPLY BY VIRTUE OF THE INTIMATE LIFE SHE SHARES WITH HER HUSBAND,
MIGHT EASILY PERFORM ACTS THAT WOULD TECHNICALLY BE SUFFICIENT TO
INVOLVE HER IN A CRIMINAL CONSPIRACY WITH HIM, BUT WHICH MIGHT BE FAR
REMOVED FROM THE ARM'S-LENGTH AGREEMENT TYPICAL OF THAT CRIME.  IT IS
NOT A MEDIEVAL MENTAL QUIRK OR AN ATTITUDE "UNNOURISHED BY SENSE" TO
BELIEVE THAT HUSBANDS AND WIVES SHOULD NOT BE SUBJECTED TO SUCH A RISK,
OR THAT SUCH A POSSIBILITY SHOULD NOT BE PERMITTED TO ENDANGER THE
CONFIDENTIALITY OF THE MARRIAGE RELATIONSHIP.  WHILE IT IS EASY ENOUGH
TO RIDICULE HAWKINS' PRONOUNCEMENT IN PLEAS OF THE CROWN (FN6) FROM A
METAPHYSICAL POINT OF VIEW, THE CONCEPT OF THE "ONENESS" OF A MARRIED
COUPLE MAY REFLECT AN ABIDING BELIEF THAT THE COMMUNION BETWEEN HUSBAND
AND WIFE IS SUCH THAT THEIR ACTIONS ARE NOT ALWAYS TO BE REGARDED BY
THE CRIMINAL LAW AS IF THERE WERE NO MARRIAGE. 

BY MAKING INROADS IN THE NAME OF LAW ENFORCEMENT INTO THE PROTECTION
WHICH CONGRESS HAS AFFORDED TO THE MARRIAGE RELATIONSHIP, THE COURT
TODAY CONTINUES IN THE PATH CHARTED BY THE RECENT DECISION IN WYATT V.
UNITED STATES, 362 U.S. 525, WHERE THE COURT HELD THAT, UNDER THE
CIRCUMSTANCES OF THAT CASE, A WIFE COULD BE COMPELLED TO TESTIFY
AGAINST HER HUSBAND OVER HER OBJECTION.  ONE NEED NOT WAVER IN HIS
BELIEF IN VIRILE LAW ENFORCEMENT TO INSIST THAT THERE ARE OTHER THINGS
IN AMERICAN LIFE WHICH ARE ALSO OF GREAT IMPORTANCE, AND TO WHICH EVEN
LAW ENFORCEMENT MUST ACCOMMODATE ITSELF.  ONE OF THESE IS THE
SOLIDARITY AND THE CONFIDENTIAL RELATIONSHIP OF MARRIAGE.  THE COURT'S
OPINION DOGMATICALLY ASSERTS THAT THE HUSBAND-WIFE CONSPIRACY DOCTRINE
DOES NOT IN FACT PROTECT THIS RELATIONSHIP, AND THAT HENCE THE DOCTRINE
"ENTRHONES AN UNREALITY INTO A RULE OF LAW."  I AM NOT EASILY PERSUADED
THAT A RULE ACCEPTED BY SO MANY PEOPLE FOR SO MANY CENTURIES CAN BE SO
LIGHTLY DISMISSED.  BUT IN ANY EVENT, I SUBMIT THAT THE POWER TO DEPOSE
BELONGS TO CONGRESS, NOT TO THIS COURT.  I DISSENT. 

FN1  MAWJI V. REGINAM, 41 CRIM. APP. R. 69, 1 ALL ENG. REP. (1957)
385. 

FN2  SEE KOWBEL V. THE QUEEN, 110 CAN.  CRIM.  CAS. 47 (1954); THE
KING V. MCKECHIE (1926) N.Z.L.R. 1. 

FN3  18 U.S.C. SEC. 371. 

FN4  "THERE ARE NO JUDGMENTS IN CANADA, DEALING WITH THIS PARTICULAR
MATTER, BUT I THINK IT IS WELL SETTLED THAT SINCE MANY CENTURIES, IT
HAS BEEN THE LAW OF ENGLAND THAT A HUSBAND AND WIFE CANNOT ALONE
CONSPIRE TO COMMIT AN INDICTABLE OFFENCE.  THESE VIEWS HAVE BEEN
EXPRESSED DURING OVER SIX CENTURIES, AND I WOULD BE SLOW TO BELIEVE
THAT THE HESITATIONS OF A FEW MODERN WRITERS COULD JUSTIFY US TO BRUSH
ASIDE WHAT HAS ALWAYS BEEN CONSIDERED AS THE EXISTING LAW  ...  .  IT
MAY VERY WELL BE AMENDED BY LEGISLATIVE INTERVENTION, BUT AS LONG AS IT
IS NOT, IT MUST BE APPLIED."  KOWBEL V. THE QUEEN, 110 CAN.  CRIM. 
CAS. 47, 52 (1954).  (TASCHEREAU, J.)    "HAD IT BEEN THE INTENTION OF
PARLIAMENT TO ABOLISH THE COMMON LAW DEFENCE WITH WHICH WE ARE
CONCERNED IT WOULD BE EXPECTED THAT PLAIN WORDS DEALING EXPRESSLY WITH
SUCH DEFENCE WOULD HAVE BEEN USED  ...  .  I CAN FIND NOTHING IN THE
GENERAL WORDS OF THE STATUTE TO WARRANT IMPUTING TO PARLIAMENT THE
INTENTION OF TAKING AWAY THIS ANCIENT COMMON LAW DEFENCE OF A HUSBAND
AND WIFE  ... ."  ID., AT 54-55.  (CARTWRIGHT, J.) 

FN5  LOCHNER V. NEW YORK, 198 U.S. 45, 76 (DISSENTING OPINION). 

FN6  HAWKINS, 1 PLEAS OF THE CROWN (4TH ED. 1762), 192. 
..END :




















GONZALES V. UNITED STATES 364 U.S. 59 


NO. 416.  ARGUED MAY 2, 1960 - DECIDED JUNE 27, 1960 - 269 F.2D 613,
AFFIRMED. 


PETITIONER, WHO CLAIMS TO BE A CONSCIENTIOUS OBJECTOR, WAS CONVICTED
OF VIOLATING SEC. 12(A) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE
ACT BY REFUSING TO BE INDUCTED INTO THE ARMED FORCES.  HE CLAIMS THAT
HE WAS DENIED DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AMENDMENT,
BECAUSE (1) AT A HEARING BEFORE A HEARING OFFICER OF THE DEPARTMENT OF
JUSTICE, HE WAS NOT PERMITTED TO REBUT STATEMENTS ATTRIBUTED TO HIM BY
THE LOCAL BOARD, AND (2) AT THE TRIAL, HE WAS DENIED THE RIGHT TO HAVE
THE HEARING OFFICER'S REPORT AND THE ORIGINAL REPORT OF THE FEDERAL
BUREAU OF INVESTIGATION AS TO HIS CLAIM.  HELD:  ON THE RECORD IN THIS
CASE, THE ADMINISTRATIVE PROCEDURES PRESCRIBED BY THE ACT WERE FULLY
COMPLIED WITH; PETITIONER WAS NOT DENIED DUE PROCESS; AND HIS
CONVICTION IS SUSTAINED.  PP. 60-66. 

(A)  PETITIONER WAS NOT DENIED DUE PROCESS IN THE ADMINISTRATIVE
PROCEEDINGS, BECAUSE THE STATEMENT IN QUESTION WAS IN HIS FILE, TO
WHICH HE HAD ACCESS, AND HE HAD OPPORTUNITIES TO REBUT IT BOTH BEFORE
THE HEARING OFFICER OF THE DEPARTMENT OF JUSTICE AND BEFORE THE APPEAL
BOARD.  PP. 62-63. 

(B)  PETITIONER WAS NOT ENTITLED TO HAVE THE HEARING OFFICER'S NOTES
AND REPORT, ESPECIALLY SINCE HE FAILED TO SHOW ANY PARTICULAR NEED FOR
THEM AND HE DID HAVE A COPY OF THE DEPARTMENT OF JUSTICE'S
RECOMMENDATION TO THE APPEAL BOARD.  PP. 63-64. 

(C)  PETITIONER WAS NOT ENTITLED, EITHER IN THE ADMINISTRATIVE
HEARING AT THE DEPARTMENT OF JUSTICE OR AT HIS TRIAL, TO INSPECT THE
ORIGINAL REPORT OF THE FEDERAL BUREAU OF INVESTIGATION, SINCE HE WAS
FURNISHED A RESUME OF IT, DID NOT CHALLENGE ITS ACCURACY, AND SHOWED NO
PARTICULAR NEED FOR THE ORIGINAL REPORT.  PP. 64-66. 

GONZALES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROSECUTION FOR REFUSAL TO BE INDUCTED INTO THE ARMED
SERVICES, IN VIOLATION OF THE PROVISIONS OF THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT, 62 STAT. 604, 622, 50 U.S.C. APP. SEC.
462(A).  PETITIONER, WHO CLAIMS TO BE A CONSCIENTIOUS OBJECTOR,
CONTENDS THAT HE WAS DENIED DUE PROCESS, BOTH IN THE PROCEEDINGS BEFORE
A HEARING OFFICER OF THE DEPARTMENT OF JUSTICE AND AT TRIAL.   HE SAYS
THAT HE WAS NOT PERMITTED TO REBUT BEFORE THE HEARING OFFICER
STATEMENTS ATTRIBUTED TO HIM BY THE LOCAL BOARD, AND, FURTHER, THAT HE
WAS DENIED AT TRIAL THE RIGHT TO HAVE THE DEPARTMENT OF JUSTICE HEARING
OFFICER'S REPORT AND THE ORIGINAL REPORT OF THE FEDERAL BUREAU OF
INVESTIGATION AS TO HIS CLAIM - ALL IN VIOLATION OF THE FIFTH
AMENDMENT.  THE TRIAL JUDGE DECIDED THAT THE ADMINISTRATIVE PROCEDURES
OF THE ACT WERE FULLY COMPLIED WITH AND REFUSED TO REQUIRE THE
PRODUCTION OF SUCH DOCUMENTS.  PETITIONER WAS FOUND GUILTY AND
SENTENCED TO 15 MONTHS' IMPRISONMENT.  THE COURT OF APPEALS AFFIRMED. 
269 F.2D 613.  WE GRANTED CERTIORARI IN VIEW OF THE IMPORTANCE OF THE
QUESTIONS IN THE ADMINISTRATION OF THE ACT.  361 U.S. 899.  WE HAVE
CONCLUDED THAT PETITIONER'S CLAIMS ARE CONTROLLED BY THE RATIONALE OF
GONZALES V. UNITED STATES, 348 U.S. 407 (1955), AND UNITED STATES V.
NUGENT, 346 U.S. 1 (1953), AND THEREFORE AFFIRM THE JUDGMENT. 

PETITIONER REGISTERED WITH LOCAL BOARD NO. 9, BOULDER, COLORADO, ON
MARCH 17, 1952.  HIS ANSWERS TO THE CLASSIFICATION QUESTIONNAIRE
REFLECTED THAT HE WAS A MINISTER OF JEHOVAH'S WITNESSES, EMPLOYED AT
NIGHT BY A SUGAR PRODUCER.  HE CLAIMED IV-D CLASSIFICATION AS A
MINISTER OF RELIGION, DEVOTING A MINIMUM OF 100 HOURS A MONTH TO
PREACHING.  ON NOVEMBER 13, 1952, HE WAS CLASSIFIED IN CLASS I-A.  ON
NOVEMBER 22, 1952, HE WROTE THE BOARD, PROTESTING THIS CLASSIFICATION. 
HE AGAIN STATED THAT HE WAS "A REGULAR MINISTER"; THAT HE WAS "DEVOTING
AN AVERAGE OF 100 HOURS A MONTH TO ACTUAL PREACHING PUBLICLY," IN
ADDITION TO 50 TO 75 HOURS IN OTHER MINISTERIAL DUTIES, AND THAT HE
OPPOSED WAR IN ANY FORM.  THEREAFTER HE WAS CLASSIFIED I-O.  ON APRIL
1, 1953, AFTER SOME SIX MONTHS OF FULL-TIME "PIONEERING," PETITIONER
DISCONTINUED DEVOTING 100 HOURS A MONTH TO PREACHING, BUT FAILED TO SO
NOTIFY HIS LOCAL BOARD.  IN A PERIODIC REVIEW, THE LOCAL BOARD ON JULY
30, 1953, RECLASSIFIED HIM I-A AND UPHELD THIS CLASSIFICATION AFTER A
PERSONAL APPEARANCE BY PETITIONER, BECAUSE OF HIS WILLINGNESS TO KILL
IN DEFENSE OF HIS CHURCH AND HOME.  UPON ADMINISTRATIVE APPROVAL OF THE
RECLASSIFICATION, HE WAS ORDERED TO REPORT FOR INDUCTION ON JUNE 11,
1956, BUT FAILED TO DO SO.  HE WAS NOT PROSECUTED, HOWEVER, AND HIS
CASE WAS SUBSEQUENTLY REOPENED, IN THE LIGHT OF SICURELLA V. UNITED
STATES, 348 U.S. 385 (1955).  HE WAS AGAIN RECLASSIFIED I-A BY THE
LOCAL BOARD.  THERE FOLLOWED A CUSTOMARY DEPARTMENT OF JUSTICE HEARING,
AT WHICH PETITIONER APPEARED.  IN HIS REPORT TO THE ATTORNEY GENERAL,
THE HEARING OFFICER SUGGESTED THAT THE PETITIONER BE EXEMPT ONLY FROM
COMBATANT TRAINING AND SERVICE.  ON MARCH 21, 1957, HOWEVER, THE
DEPARTMENT RECOMMENDED APPROVAL OF THE I-A CLASSIFICATION.  ITS GROUND
FOR THIS RECOMMENDATION WAS THAT, WHILE PETITIONER CLAIMED BEFORE THE
LOCAL BOARD ON AUGUST 17, 1956 (AS EVIDENCED BY ITS MEMORANDUM IN HIS
FILE OF THAT DATE), THAT HE WAS DEVOTING 100 HOURS PER MONTH TO ACTUAL
PREACHING, THE HEADQUARTERS OF THE JEHOVAH'S WITNESSES REPORTED THAT HE
WAS NO LONGER DOING SO AND, ON THE CONTRARY, HAD RELINQUISHED BOTH HIS
PIONEER AND BIBLE STUDENT SERVANT POSITIONS.  IT REPORTED THAT HE NOW
DEVOTED ONLY SOME 6 1/2 HOURS PER MONTH TO PUBLIC PREACHING AND FROM 20
TO 25 HOURS PER MONTH TO CHURCH ACTIVITIES.  HIS CLAIM WAS THEREFORE
"SO HIGHLY EXAGGERATED," THE DEPARTMENT CONCLUDED, THAT IT "CAST DOUBT
UPON HIS VERACITY AND, CONSEQUENTLY, UPON HIS SINCERITY AND GOOD
FAITH."  THE APPEAL BOARD FURNISHED PETITIONER A COPY OF THE
RECOMMENDATION.  IN HIS ANSWER THERETO, HE ADVISED THE BOARD THAT HE
HAD MADE NO SUCH STATEMENT IN 1956, AND ASSERTED THAT HIS ONLY CLAIM TO
"PIONEERING" WAS IN 1952.  THE APPEAL BOARD, HOWEVER, UNANIMOUSLY
CONCURRED IN THE DEPARTMENT'S RECOMMENDATION.  UPON RETURN OF THE FILE
TO THE LOCAL BOARD, PETITIONER WAS AGAIN ORDERED TO REPORT FOR
INDUCTION AND THIS PROSECUTION FOLLOWED HIS FAILURE TO DO SO. 

PETITIONER FIRST CONTENDS THAT THE DEPARTMENT DENIED HIM PROCEDURAL
DUE PROCESS BY NOT GIVING HIM TIMELY OPPORTUNITY, BEFORE ITS FINAL
RECOMMENDATION TO THE APPEAL BOARD, TO ANSWER THE STATEMENT OF THE
LOCAL BOARD AS TO HIS CLAIM OF DEVOTING 100 HOURS TO ACTUAL PREACHING. 
BUT THE STATEMENT OF THE LOCAL BOARD ATTRIBUTING THIS CLAIM TO
PETITIONER WAS IN HIS FILE.  HE ADMITTED THAT HE KNEW IT WAS OPEN TO
HIM AT ALL TIMES, AND HE COULD HAVE REBUTTED IT BEFORE THE HEARING
OFFICER.  THIS HE FAILED TO DO, ASSERTING THAT HE DID NOT KNOW IT TO BE
IN HIS FILE.  APPARENTLY HE NEVER TOOK THE TROUBLE TO FIND OUT. 
NEVERTHELESS HE HAD AMPLE OPPORTUNITY TO CONTEST THE STATEMENT BEFORE
THE APPEAL BOARD.  AFTER THE RECOMMENDATION OF THE DEPARTMENT IS
FORWARDED TO THE APPEAL BOARD, THAT IS THE APPROPRIATE PLACE FOR A
REGISTRANT TO LODGE HIS DENIAL.  THIS HE DID.  WE FOUND IN GONZALES V.
UNITED STATES, SUPRA, THAT THIS WAS THE CONTROLLING REASON WHY COPIES
OF THE RECOMMENDATION SHOULD BE FURNISHED A REGISTRANT.  WE SAID THERE
THAT IT WAS NECESSARY "THAT A REGISTRANT BE GIVEN AN OPPORTUNITY TO
REBUT THE DEPARTMENT'S RECOMMENDATION WHEN IT COMES TO THE APPEAL
BOARD, THE AGENCY WITH THE ULTIMATE RESPONSIBILITY FOR
CLASSIFICATION."  348 U.S., AT 412.  WE FAIL TO SEE HOW SUCH PROCEDURE
RESULTED IN ANY PREJUDICE TO PETITIONER'S CONTENTION, WHICH WAS
CONSIDERED BY THE APPEAL BOARD AND DENIED BY IT.  AS WAS SAID IN
GONZALES, "IT IS THE APPEAL BOARD WHICH RENDERS THE SELECTIVE SERVICE
DETERMINATION CONSIDERED 'FINAL' IN THE COURTS, NOT TO BE OVERTURNED
UNLESS THERE IS NO BASIS IN FACT.  ESTEP V. UNITED STATES, 327 U.S.
114."  348 U.S., AT 412-413. 

BUT THERE ARE OTHER CONTENTIONS WHICH MIGHT BE CONSIDERED MORE
DIFFICULT.  AT HIS TRIAL, PETITIONER SOUGHT TO SECURE THROUGH SUBPOENA
DUCES TECUM THE LONGHAND NOTES OF THE DEPARTMENT'S HEARING OFFICER,
EVENSEN, AS WELL AS HIS REPORT THEREON.  PETITIONER ALSO CLAIMED AT
TRIAL THE RIGHT TO INSPECT THE ORIGINAL FEDERAL BUREAU OF INVESTIGATION
REPORTS TO THE DEPARTMENT OF JUSTICE.  HE ALLEGED NO SPECIFIC
PROCEDURAL ERRORS OR EVIDENCE WITHHELD; NOR DID HE ELABORATE JUST WHAT
FAVORABLE EVIDENCE THE FEDERAL BUREAU OF INVESTIGATION REPORTS MIGHT
DISCLOSE. 

DEPARTMENT'S RECOMMENDATION TO BE PLACED IN A REGISTRANT'S FILE. 
GONZALES V. UNITED STATES, SUPRA.  BUT THERE IS NOTHING IN THE ACT
REQUIRING THE HEARING OFFICER'S REPORT TO BE LIKEWISE TURNED OVER TO
THE REGISTRANT.  WHILE THE REGULATIONS FORMERLY REQUIRED THAT THE
HEARING OFFICER'S REPORT BE PLACED IN THE REGISTRANT'S FILE, THIS
REQUIREMENT WAS ELIMINATED IN 1952.  MOREOVER, THE HEARING OFFICER'S
REPORT IS BUT INTRADEPARTMENTAL, IS DIRECTED TO THE ATTORNEY GENERAL
AND, OF COURSE, IS NOT THE RECOMMENDATION OF THE DEPARTMENT.  IT IS NOT
ESSENTIALLY DIFFERENT FROM A MEMORANDUM OF AN ATTORNEY IN THE
DEPARTMENT OF JUSTICE, OF WHICH THE ATTORNEY GENERAL RECEIVES MANY, AND
TO WHICH HE MAY GIVE HIS APPROVAL OR REJECTION.  IT IS BUT PART OF THE
WHOLE PROCESS WITHIN THE DEPARTMENT THAT GOES INTO THE MAKING OF THE
FINAL RECOMMENDATION TO THE APPEAL BOARD. 

IT IS ALSO SIGNIFICANT THAT NEITHER THIS REPORT NOR THE HEARING
OFFICER'S NOTES WERE FURNISHED TO THE APPEAL BOARD.  HENCE THE
PETITIONER HAD FULL OPPORTUNITY TO TRAVERSE THE ONLY CONCLUSIONS OF THE
DEPARTMENT ON FILE WITH THE BOARD.  PETITIONER KNEW THAT THE
DEPARTMENT'S RECOMMENDATION WAS BASED NOT ON THE HEARING OFFICER'S
REPORT BUT ON THE STATEMENT OF THE LOCAL BOARD IN HIS FILE.  HAVING HAD
EVERY OPPORTUNITY TO REBUT THE FINDING OF THE LOCAL BOARD BEFORE BOTH
THE HEARING OFFICER AND THE APPEAL BOARD, PETITIONER CANNOT NOW CLAIM
THAT HE WAS DENIED DUE PROCESS BECAUSE HE DID NOT SUCCEED.   (FN1) 

IT APPEARS TO US THAT THE SAME REASONING APPLIES TO THE PRODUCTION OF
THE HEARING OFFICER'S REPORT AND NOTES AT THE TRIAL.  IN ADDITION,
PETITIONER HAS FAILED TO SHOW ANY PARTICULAR NEED FOR THE REPORT AND
NOTES.  WHILE THERE ARE NOW ALLEGATIONS OF THE WITHHOLDING OF
"FAVORABLE EVIDENCE DEVELOPED AT THE HEARING" AND A DENIAL OF A "FULL
AND FAIR HEARING," NO SUCH CLAIM WAS MADE BY PETITIONER AT ANY STAGE OF
THE ADMINISTRATIVE PROCESS.  MOREOVER, HIS TESTIMONY AT TRIAL NEVER
DEVELOPED ANY SUCH FACTS.  IN THE LIGHT OF THESE CIRCUMSTANCES, AS WELL
AS THE FACT THAT THE ISSUE AT TRIAL IN THIS RESPECT CENTERED ENTIRELY
ON THE DEPARTMENT'S RECOMMENDATION, WHICH PETITIONER REPUDIATED BUT
WHICH BOTH THE APPEAL BOARD AND THE COURTS BELOW FOUND SUPPORTED BY THE
RECORD, WE FIND NO RELEVANCY IN THE HEARING OFFICER'S REPORT AND
NOTES. 

FINALLY PETITIONER SAYS THAT HE WAS ENTITLED TO INSPECT THE FBI
REPORT DURING THE PROCEEDINGS BEFORE THE HEARING OFFICER AS WELL AS AT
THE TRIAL.  HE DID RECEIVE A RESUME OF IT - THE SAME THAT WAS FURNISHED
THE APPEAL BOARD - AND HE MADE NO CLAIM OF ITS INACCURACY.  EVEN NOW NO
SUCH CLAIM IS ASSERTED.  HE BASES HIS PRESENT CONTENTION ON THE GENERAL
RIGHT TO EXPLORE, INDICATING THAT HE HOPES TO FIND SOME DISCREPANCY IN
THE RESUME.  BUT THIS IS FULLY ANSWERED BY UNITED STATES V. NUGENT,
SUPRA.  THERE WE HELD "THAT THE STATUTORY SCHEME FOR REVIEW, WITHIN THE
SELECTIVE SERVICE SYSTEM, ...  ENTITLES (CONSCIENTIOUS OBJECTORS) TO NO
GUARANTEE THAT THE FBI REPORTS MUST BE PRODUCED FOR THEIR INSPECTION." 
346 U.S., AT 5-6.  EVEN IF WE WERE NOT BOUND BY NUGENT, PETITIONER HERE
WOULD NOT BE ENTITLED TO THE REPORT.  THE RECOMMENDATION OF THE
DEPARTMENT - AS WELL AS THE DECISION OF THE APPEAL BOARD - WAS BASED
ENTIRELY ON THE LOCAL BOARD FILE, NOT ON AN FBI REPORT. 

AS TO THE PRODUCTION OF THE REPORT AT THE TRIAL, IT IS TRUE THAT,
WHILE THAT ISSUE WAS RAISED IN NUGENT, (FN2) THE COURT GAVE IT NO
SEPARATE TREATMENT.  HOWEVER, IT WOULD BE AN ACT OF FOLLY NOT TO
REQUIRE THE PRODUCTION OF SUCH REPORTS BEFORE THE APPEAL BOARDS, WHOSE
"ACTIONS ARE FINAL" AND TO BE OVERTURNED "ONLY IF THERE IS NO BASIS IN
FACT FOR THE CLASSIFICATION," ESTEP V. UNITED STATES, 327 U.S. 114, 122
(1946), AND SUBSEQUENTLY TO REQUIRE THEIR PRODUCTION AT THE TRIALS IN
THE DISTRICT COURTS.  WE NOTE THAT THE COURTS OF APPEALS HAVE UNIFORMLY
REJECTED SUCH CLAIMS.  THIS IS NOT TO SAY THAT THERE MIGHT NOT BE
CIRCUMSTANCES IN A PARTICULAR CASE WHERE FAIRNESS IN THE PROCEEDING
WOULD REQUIRE PRODUCTION.  NO SUCH CIRCUMSTANCES, AS FOUNDATION FOR A
CLAIM OF ACTUAL UNFAIRNESS, ARE BEFORE US.  CONTRARIWISE, THE RESUME
FULLY SET OUT PETITIONER'S STATEMENT BEFORE THE LOCAL BOARD AS TO HIS
MINISTERIAL ACTIVITY.  SINCE THIS IS NOT DISPUTED, AND SINCE THE
DEPARTMENT'S RECOMMENDATION WAS BASED ON A DISPARITY BETWEEN
PETITIONER'S REPRESENTATIONS BEFORE THE LOCAL BOARD - NOT ON THE FBI
REPORT - IT FOLLOWS THAT THE REASONING OF NUGENT CONTROLS. 

PETITIONER RAISES OTHER POINTS, SUCH AS THE FACT THAT THE PROSECUTOR
DID NOT CALL THE MEMBERS AND CLERK OF THE LOCAL BOARD TO TESTIFY AT HIS
TRIAL.  WE FIND NO SUBSTANCE IN ANY OF THEM.  PETITIONER COULD HAVE
SUBPOENAED ANY WITNESSES HE WISHED AT THE TRIAL.  IT WAS HE WHO WAS
CHALLENGING THE CLASSIFICATION.  THE GOVERNMENT RELIED ONLY ON THE
RECORD IN THE FILE, ALL OF WHICH WAS AVAILABLE TO PETITIONER.  HE MAKES
MUCH OF THE IDENTITY OF THE LANGUAGE OF THE STATEMENT HE IS FOUND TO
HAVE MADE BEFORE THE LOCAL BOARD ON AUGUST 17, 1956, AS TO HIS
MINISTERIAL ACTIVITY, AND HIS EARLIER LETTER TO THE BOARD IN 1952.  BUT
ALL OF THIS WAS BEFORE THE APPEAL BOARD.  MOREOVER, HE COULD HAVE
CALLED WITNESSES TO BRING OUT THE CIRCUMSTANCES SURROUNDING THE
STATEMENT AND THE LETTER; THE FBI FILES WOULD HAVE BEEN TO NO AVAIL. 
HE CONTENTED HIMSELF, HOWEVER, WITH OFFERING ONLY HIS OWN DENIAL.  THE
APPEAL BOARD RESOLVED THIS ISSUE AGAINST HIM.  IT FOUND THAT HIS CLAIM
AS TO MINISTERIAL ACTIVITY WAS EXAGGERATED AND CAST DOUBT ON HIS
SINCERITY.  BOTH COURTS BELOW HAVE FOUND "THAT THE RECORD IS NOT
WITHOUT EVIDENCE TO SUPPORT THESE CONCLUSIONS."  WE WILL NOT SET ASIDE
THEIR FINDINGS HERE.  AFFIRMED. 

FN1  PETITIONER POINTS OUT THAT THE REGULATIONS, AS WE HAVE SAID, AT
ONE TIME REQUIRED COPIES OF THE HEARING OFFICER'S REPORT TO BE PLACED
IN THE REGISTRANT'S FILE.  HE ATTRIBUTES CONGRESSIONAL APPROVAL THERETO
BECAUSE THE SELECTIVE SERVICE LAWS WERE RE-ENACTED AND AMENDED IN 1951
AND 1952.  THE SAME REASONING WOULD APPLY, HOWEVER, TO THE REPEAL OF
THE REGULATION.  AS WE NOTED, IT WAS STRICKEN BY THE ATTORNEY GENERAL
IN 1952 AND CONGRESS HAS AMENDED THE ACT THREE TIMES SUBSEQUENTLY - IN
1955, 1957, AND 1958.  STILL IT HAS FAILED TO INDICATE ANY OBJECTION TO
THE REPEAL OF THE REGULATION. 

FN2  JOINT BRIEF FOR RESPONDENTS, P. 181, UNITED STATES V. NUGENT,
346 U.S. 1 (1953). 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE BRENNAN JOIN, DISSENTING.    I CANNOT AGREE
WITH THE DECISION OF THE COURT, FOR I BELIEVE THAT PETITIONER HAS BEEN
DEPRIVED OF A RIGHT WHICH IS HIS BY STATUTE AND REGULATION - THE RIGHT
TO A FULL HEARING.  THE FACTS OF THIS CASE NOT ONLY INDICATE A
MISCARRIAGE OF JUSTICE, BUT ALSO UNDERLINE THE SIGNIFICANCE OF THE
HEARING RIGHTS WHICH PETITIONER WAS NEVER ACCORDED. 

PETITIONER, A YOUTH OF 18 AT THE TIME, FIRST CLAIMED EXEMPTION AS A
MINISTER OF JEHOVAH'S WITNESSES IN 1952, DESCRIBING THE EXTENT AND
NATURE OF HIS RELIGIOUS ACTIVITIES IN A DETAILED LETTER TO THE LOCAL
SELECTIVE SERVICE BOARD.  THE BOARD, HOWEVER, CLASSIFIED HIM 1-A, AND,
AFTER AN UNSUCCESSFUL APPEAL, HE WAS ORDERED TO REPORT FOR INDUCTION. 
ALTHOUGH HE REFUSED TO COMPLY WITH THE ORDER, HIS CASE WAS REOPENED
AFTER OUR DECISION IN SICURELLA V. UNITED STATES, 348 U.S. 385.  (FN1)
HE RENEWED HIS CLAIM FOR EXEMPTION, ASSERTING THAT HE WAS A MINISTER
AND A CONSCIENTIOUS OBJECTOR, BUT AGAIN THE LOCAL BOARD RULED
ADVERSELY.  ON APPEAL, THE CASE WAS REFERRED TO THE DEPARTMENT OF
JUSTICE, AND PETITIONER APPEARED BEFORE A HEARING OFFICER. 

THE HEARING OFFICER'S REPORT, AS SUMMARIZED BY THE DEPARTMENT OF
JUSTICE, WAS AS FOLLOWS: 

"THE HEARING OFFICER REPORTED THAT REGISTRANT GAVE THE APPEARANCE OF
BEING SINCERE AND FIRM IN HIS BELIEFS AND THAT HE APPEARED TO BE WELL
VERSED IN THE SCRIPTURES.  HE FOUND THAT REGISTRANT'S OBJECTIONS ARE
BASED UPON HIS RELIGIOUS TRAINING AND BELIEFS BUT CONCLUDED THAT HE IS
NOT OPPOSED TO PARTICIPATION IN WAR IN ANY FORM.  HE FURTHER CONCLUDED
THAT REGISTRANT WAS OPPOSED TO COMBATANT TRAINING AND SERVICE BUT NOT
OPPOSED TO NONCOMBATANT TRAINING AND SERVICE.  HE, THEREFORE,
RECOMMENDED THAT REGISTRANT BE EXEMPT FROM COMBATANT TRAINING AND
SERVICE ONLY." 

THIS WAS HARDLY AN ASTONISHING RECOMMENDATION, INASMUCH AS THE
SUMMARIES OF TWO F.B.I. INVESTIGATIVE REPORTS WERE ENTIRELY - AND IN MY
JUDGMENT CONCLUSIVELY - FAVORABLE.  AT THE TIME OF THE FIRST REPORT IN
1954, PETITIONER'S GRADE-SCHOOL TEACHERS RELATED THAT HE HAD BEEN "VERY
COOPERATIVE AND MANNERLY," AND THAT HE HAD "REFUSED TO SALUTE THE FLAG
ON REGLIGIOUS GROUNDS."  HIS FORMER EMPLOYERS "FOUND HIM AN EXCELLENT
WORKER, VERY SERIOUS ABOUT HIS RELIGION AND SINCERE AND FAIR IN HIS
DEALINGS."  HIS NEIGHBORS STATED THAT HE WAS "A QUIET AND ORDERLY YOUNG
MAN WHOSE CHARACTER AND REPUTATION ARE GOOD," THAT HE WAS A "VERY
ACTIVE" MEMBER OF JEHOVAH'S WITNESSES, AND THAT THEY CONSIDERED HIM TO
BE "SINCERE IN HIS BELIEFS."  PETITIONER'S REFERENCES AND HIS FELLOW
MEMBERS IN THE SECT SAID THAT HE WAS "A VERY ACTIVE, SINCERE MEMBER,"
AND THAT THEY BELIEVED HE WAS "IN GOOD FAITH IN HIS CONSCIENTIOUS
OBJECTOR CLAIM."  THE SECOND REPORT, DATED 1956, INCORPORATED THE FIRST
AND ADDED THE FOLLOWING:  PETITIONER'S EMPLOYER REGARDED HIM AS "AN
EXCELLENT WORKER, COMPLETELY RELIABLE, DEPENDABLE AND OF EXCELLENT
MORALS, CHARACTER AND ASSOCIATES."  HIS ACQUAINTANCES, NEIGHBORS AND
RELIGIOUS ASSOCIATES "ALL SPOKE FAVORABLY CONCERNING HIS CHARACTER AND
REPUTATION, CONDUCT AND MORALS," AND REPORTED THAT HE WAS "VERY ACTIVE
IN  ...  CHURCH AFFAIRS  ... AND  ...  VERY DEVOTED TO HIS RELIGIOUS
BELIEFS."  THEY STATED THAT HE "LIVES UP TO THE TEACHINGS OF THE CHURCH
AND IS CONSIDERED TO BE SINCERE IN HIS RELIGIOUS BELIEFS AND IN HIS
CONSCIENTIOUS-OBJECTOR CLAIM."  THE HEARING OFFICER WAS UNDERSTANDABLY
IMPRESSED. 

HOWEVER, THE CHIEF OF THE CONSCIENTIOUS-OBJECTOR SECTION OF THE
JUSTICE DEPARTMENT, WHO REVIEWED THE FILE, TOOK A CONTRARY VIEW.  HE
FASTENED UPON A SINGLE ITEM IN THE FILE - A MATTER WHICH HAD NEITHER
BEEN MENTIONED BY THE HEARING OFFICER NOR, FOR ALL THAT APPEARS, RELIED
UPON BY THE LOCAL BOARD - AND RECOMMENDED TO PETITIONER'S APPEAL BOARD
THAT THE CLAIM NOT BE SUSTAINED.  THE ITEM IN QUESTION WAS THE LOCAL
BOARD'S SUMMARY OF PETITIONER'S APPEARANCE BEFORE IT IN 1956, WHICH THE
CLAIMED HE WAS STILL DEVOTING 100 HOURS A MONTH TO PREACHING, AS HIS
1952 LETTER TO THE BOARD HAD STATED.  (FN2)  SINCE THE INVESTIGATIVE
REPORTS INDICATED THAT PETITIONER'S STATUS AS A JEHOVAH'S WITNESS
"PIONEER" HAD TERMINATED IN 1953, AND THAT FROM 1954 TO 1956 HE HAD
DEVOTED ONLY SIX AND ONE-HALF HOURS A MONTH TO PREACHING, THE SECTION
CHIEF CONCLUDED THAT PETITIONER'S "CLAIM AS TO THE AMOUNT OF HIS
RELIGIOUS ACTIVITIES IS SO HIGHLY EXAGGERATED  ...  AS TO CAST DOUBT
UPON HIS VERACITY AND, CONSEQUENTLY, UPON HIS SINCERITY AND GOOD
FAITH." 

PETITIONER WAS INFORMED OF THIS RECOMMENDATION, AND WROTE TO THE
APPEAL BOARD AS FOLLOWS: 

"  ...  I WOULD LIKE TO STATE THAT I DID NOT AT SUCH A TIME IN 1956
MAKE SUCH A STATEMENT OR ANY STATEMENT IMPLICATING THE SAME.  THE ONLY
TIME I SUBMITTED SUCH INFORMATION WAS WHEN I WAS PIONEERING THAT WAS IN
THE PERIOD OF OCTOBER 1, 1952 TO APRIL 16, 1953  ...  .  I WOULD LIKE
TO MAKE IT PLAIN THAT I IN NO MANNER EVER EXAGGERATED MY REPORT
CONCERNING MY ACTIVITIES.  THE REASON BEING MORE THAN JUST MY RESPECT
FOR MERE MAN, BUT AS A CHRISTIAN AND BIBLE STUDENT I REALIZE I STAND
BEFORE THE HIGHER AUTHORITIES JEHOVAH GOD AND JESUS CHRIST, I AM ALSO
FULLY AWARE OF THE CONSEQUENCES TO LIARS AS STATED AT PROVERBS 6:16,
17, 19 SHOWING GOD HATES A LYING TONGUE.  I ALSO REALIZE THAT FOR ONE
TO LIE WOULD MAKE VOID HIS CHRISTIAN CONDUCT AND WORSHIP.  SO PLEASE
CONSIDER THE INFORMATION HERE SUBMITTED, I AM SURE THE RECORD STANDS
BEHIND IT ALL." 

THIS STATEMENT, SET AGAINST THE BACKGROUND OF THE INFORMATION OF
RECORD REGARDING PETITIONER'S CHARACTER, HAS THE RING OF TRUTH. 
MOREOVER, IT IS CORROBORATED BY THE INHERENT IMPROBABILITY THAT
PETITIONER'S ORAL STATEMENT IN 1956 WOULD HAVE BEEN A WORD-FOR-WORD AND
SENTENCE-FOR-SENTENCE CARBON COPY OF THE WRITTEN STATEMENT HE HAD
SUBMITTED FOUR YEARS BEFORE, DOWN TO THE REQUEST FOR A PERSONAL
APPEARANCE WHICH HE WAS AT THAT VERY MINUTE RECEIVING.  (FN3)  AND IT
SHOULD BE EMPHASIZED THAT THE ONLY EVIDENCE THAT PETITIONER MADE SUCH A
STATEMENT WAS THE BOARD MEMORANDUM, SET FORTH IN NOTE 2, SUPRA.  THE
MOST LIKELY EXPLANATION IS THAT THE LOCAL BOARD MERELY INTENDED TO SAY
THAT PETITIONER HAD REPEATED HIS BASIC CLAIM TO EXEMPTION, AND THAT THE
BOARD UTILIZED PETITIONER'S PRIOR LETTER ON THE ASSUMPTION THAT IT
DESCRIBED THAT CLAIM.  BUT, SO FAR AS APPEARS, NO ONE IN THE DEPARTMENT
TOOK THE TROUBLE TO ASK THE LOCAL BOARD PRECISELY WHAT ITS MEMORANDUM
MEANT. 

ALTHOUGH THE DEPARTMENT'S RECOMMENDATION WAS BASED UPON THIS DUBIOUS
FOUNDATION, THE APPEAL BOARD FOLLOWED THAT RECOMMENDATION.  BEFORE THE
DATE SCHEDULED FOR PETITIONER'S INDUCTION, HE INFORMED THE LOCAL BOARD
THAT HIS WIFE WAS PREGNANT, BUT THE BOARD TOLD HIM THAT THE
NOTIFICATION CAME TOO LATE.  PETITIONER REFUSED TO BE INDUCTED, WAS
PROSECUTED, AND WAS CONVICTED. 

THE STRIKING THING ABOUT THIS CASE - ASIDE FROM THE DISHONORING OF
PETITIONER'S CLAIM - IS THAT HE NEVER ONCE RECEIVED A REAL OPPORTUNITY
TO PERSUADE ANY DEPARTMENT OR SELECTIVE SERVICE OFFICER FACE TO FACE
THAT HE HAD NOT LIED TO THE LOCAL BOARD, FOR THE ACCUSATION WAS NEVER
MADE UNTIL PETITIONER'S OPPORTUNITY FOR ORAL RESPONSE HAD PASSED.  THE
HEARING OFFICER NEVER ADVERTED TO THE MATTER, AND THE DEPARTMENT'S
RECOMMENDATION WAS MADE ON GROUNDS ENTIRELY DIFFERENT FROM THE MATTERS
WHICH HAD BEEN EXPLORED AT THE HEARING.  IT IS TRUE, AS I HAVE
INDICATED, THAT PETITIONER WAS ALLOWED TO FILE A REBUTTAL BEFORE THE
APPEAL BOARD; BUT THAT REBUTTAL WAS WRITTEN, NOT ORAL.  SEE 32 CFR SEC.
1626.25(E).  SINCE THE ISSUE WAS ONE OF CREDIBILITY, IT CAN HARDLY BE
MAINTAINED THAT THIS AFFORDED PETITIONER A FAIR OPPORTUNITY TO MEET AN
ACCUSATION DETERMINATIVE OF HIS CASE. 

NOR CAN IT BE SAID THAT THE DEPARTMENT'S RECOMMENDATION, AND THE
BASIS THEREFOR, HAS NO SIGNIFICANCE.  ON THE CONTRARY, THE STATUTE
MAKES THE DEPARTMENT PROCEEDING AN INTEGRAL AND IMPORTANT PART OF THE
CLASSIFICATION PROCESS; FOR EVERY APPEAL MUST BE REFERRED TO THE
DEPARTMENT, AND, ALTHOUGH THE APPEAL BOARD IS NOT BOUND TO FOLLOW THE
DEPARTMENT'S RECOMMENDATION, IT IS ADMONISHED BY THE STATUTE TO "GIVE
CONSIDERATION TO" IT. (FN4)  THE FACT APPEARS TO BE THAT THESE
RECOMMENDATIONS ARE FOLLOWED IN OVER 90% OF THE CASES.  (FN5)
MOREOVER, THE SELECTIVE SERVICE CLASSIFICATION WHICH IS GIVEN
ADMINISTRATIVELY CANNOT EFFECTIVELY BE CONTESTED IN A CRIMINAL
PROCEEDING IN COURT, IN VIEW OF THE EXTREMELY RESTRICTED JUDICIAL
REVIEW OF THAT CLASSIFICATION.  SEE WITMER V. UNITED STATES, 348 U.S.
375.  THESE FACTORS REVEAL THE CRITICAL IMPORTANCE OF THE DEPARTMENT'S
RECOMMENDATION, AND, IN TURN, OF THE INADEQUATE PROCEDURES UNDER WHICH
PETITIONER WAS PERMITTED TO PRESENT HIS CLAIM TO THE DEPARTMENT. 

CONGRESS FULLY RECOGNIZED THE SIGNIFICANCE OF THE DEPARTMENT OF
JUSTICE STAGE OF THE PROCEEDING, FOR IT DIRECTED THAT EVERY APPEAL BE
REFERRED TO THE DEPARTMENT "FOR INQUIRY AND HEARING," AND COMMANDED THE
DEPARTMENT, "AFTER APPROPRIATE INQUIRY," TO "HOLD A HEARING WITH
RESPECT TO THE CHARACTER AND GOOD FAITH OF THE OBJECTIONS OF THE PERSON
CONCERNED."  AN ADVERSE RECOMMENDATION IS TO BE MADE ONLY WHEN "AFTER
SUCH HEARING THE DEPARTMENT OF JUSTICE FINDS THAT HIS OBJECTIONS ARE
NOT SUSTAINED."  (FN6)  THE REGULATIONS ARE IN ACCORD.  32 CFR SEC.
1626.25. 

IN REQUIRING A HEARING, CONGRESS DID NOT MEAN, IN MY OPINION, THAT A
GUESSING CONTEST WOULD SUFFICE.  IT IS TRUE ENOUGH THAT, PRIOR TO THE
HEARING, PETITIONER COULD HAVE SEARCHED THE FILES AND DISCOVERED THE
LOCAL BOARD MEMORANDUM; BUT THIS OPPORTUNITY HARDLY MEASURES UP TO THE
TRADITIONAL CONCEPT OF A HEARING AS INVOLVING NOTICE OF CHARGES.  AND I
THINK IT NOT AMISS, IN CONSIDERING THIS MATTER, TO NOTE THAT AT THE
TIME OF HIS APPEARANCE BEFORE THE LOCAL BOARD AND THE HEARING OFFICER,
PETITIONER, A LABORER WITH BUT AN EIGHTH-GRADE EDUCATION, WAS A YOUTH
OF 22 YEARS OF AGE AND WAS UNREPRESENTED BY COUNSEL.  I DOUBT THAT
ANYONE WOULD MAINTAIN THAT THERE WOULD BE A HEARING IN ANY TRUE SENSE
OF THE WORD IF SUCH A PERSON WERE TOLD BY THE DEPARTMENT THAT HE COULD
APPEAR AND SAY WHATEVER HE WISHED, BUT THAT THE DEPARTMENT WOULD NOT
INDICATE TO HIM WHAT IT CONSIDERED PERTINENT - INDEED, WHAT IT
CONSIDERED CONCLUSIVE UNLESS REBUTTED.  YET IN SUBSTANCE THIS IS
EXACTLY WHAT HAPPENED HERE.  I CANNOT BELIEVE THAT THIS PROCEDURE
COMPORTS WITH CONGRESS' INTENT. 

NOR CAN I RECONCILE THE COURT'S DECISION WITH PRECEDENT.  IN MORGAN
V. UNITED STATES, 304 U.S. 1, THE COURT HELD A GOVERNMENT RATE ORDER
VOID BECAUSE THE STOCKYARDS COMMISSION MEN WHO WERE AFFECTED BY IT WERE
NOT GIVEN THE "FULL HEARING" REQUIRED BY THE PERTINENT STATUTE.  THERE
WAS NO QUESTION OF THESE INDIVIDUALS NOT BEING ALLOWED TO ARGUE THEIR
CASE.  IN FACT, THERE HAD BEEN A FULL AND LENGTHY PROCEEDING FOR THE
INTRODUCTION OF EVIDENCE, AND IN ADDITION THE PARTIES HAD BEEN GRANTED
AN ORAL ARGUMENT BEFORE THE ACTING SECRETARY OF AGRICULTURE.  BUT THIS
COURT NONETHELESS FOUND THAT THERE HAD NOT BEEN A HEARING WITHIN THE
MEANING OF THE STATUTE, AND PHRASED ITS HOLDING IN LANGUAGE WHICH IS
UNIQUELY APROPOS HERE: 

"THE RIGHT TO A HEARING EMBRACES NOT ONLY THE RIGHT TO PRESENT
EVIDENCE BUT ALSO A REASONABLE OPPORTUNITY TO KNOW THE CLAIMS OF THE
OPPOSING PARTY AND TO MEET THEM.  THE RIGHT TO SUBMIT ARGUMENT IMPLIES
THAT OPPORTUNITY; OTHERWISE THE RIGHT MIGHT BE BUT A BARREN ONE.  THOSE
WHO ARE BROUGHT INTO CONTEST WITH THE GOVERNMENT IN A QUASI-JUDICIAL
PROCEEDING AIMED AT THE CONTROL OF THEIR ACTIVITIES ARE ENTITLED TO BE
FAIRLY ADVISED OF WHAT THE GOVERNMENT PROPOSES AND TO BE HEARD UPON ITS
PROPOSALS BEFORE IT ISSUES ITS FINAL COMMAND."  ID., AT 18-19. 

I DO NOT BELIEVE THAT THE CLAIM OF RAYMOND GONZALES TO A FULL HEARING
IS LESS WORTHY OF CONSIDERATION THAN THE RIGHTS OF THE STOCKYARDS
COMMISSION MEN IN MORGAN. 

IN SUM, I AM UNWILLING TO ATTRIBUTE TO CONGRESS ANY INTENT OTHER THAN
ONE WHICH WOULD GUARANTEE TO PERSONS LIKE PETITIONER EVERY PROCEDURAL
SAFEGUARD WHICH APPEARS REASONABLY DESIGNED TO INSURE A FAIR
DETERMINATION OF THEIR CLAIMS.  WE MUST REMEMBER THAT WE ARE DEALING
HERE WITH A SYSTEM OF UNIVERSAL MILITARY SERVICE WHICH TOUCHES,
DIRECTLY OR INDIRECTLY, PRACTICALLY EVERY PERSON AND EVERY FAMILY IN
THIS COUNTRY.  WHEN THE PEOPLE ARE THUS BROUGHT INTO CONTACT WITH THE
GOVERNMENT, THE IMPORTANCE TO THE COMMONWEAL OF INSURING THEIR
CONFIDENCE IN THE JUSTNESS OF THE PROGRAM CANNOT BE OVEREMPHASIZED, FOR
TO THEM IT IS NOT MERELY THE FAIRNESS OF A PROGRAM WHICH IS INVOLVED,
BUT THE FAIRNESS OF THEIR GOVERNMENT.  THE SENSITIVITY OF CONGRESS TO
THIS NEED IS NOWHERE BETTER DEMONSTRATED THAN IN THE STATUTORY
PROVISIONS CONCERNING THE TREATMENT OF PERSONS CLAIMING EXEMPTION AS
CONSCIENTIOUS OBJECTORS.  AS CONGRESS HAS RECOGNIZED, ONE OF THE MOST
FUNDAMENTAL ASPECTS OF OUR NATIONAL ETHIC IS A RECOGNITION OF THE WORTH
OF THE PERSON, ACTING ACCORDING TO THE DICTATES OF HIS OWN CONSCIENCE. 
AND THUS IT IS THAT, EVEN IN FORMULATING LEGISLATION DEEMED TO BE OF
PRIME IMPORTANCE TO THE VERY EXISTENCE OF THE NATION, CONGRESS
REFRAINED FROM IMPRESSING INTO MILITARY SERVICE THOSE WHO BY RELIGIOUS
CONVICTION FIND WAR AN AFFRONT TO GOD AND MORALITY.  THE DESIRE OF
CONGRESS THAT SUCH BELIEFS BE RESPECTED IS FURTHER REFLECTED BY ITS
UNWILLINGNESS TO ENTRUST TO A LOCAL BOARD THE FINAL AUTHORITY TO PASS
UPON THE CLAIMS OF CONSCIENTIOUS OBJECTORS.  INSTEAD, CONGRESS PROVIDED
FOR AN APPEAL WITHIN THE SELECTIVE SERVICE SYSTEM, TOGETHER WITH A
HEARING IN THE DEPARTMENT OF JUSTICE.  IN DETERMINING WHAT CONGRESS
INTENDED BY THESE STATUTORY PROVISIONS, WE MUST NOT FORGET THE NATURE
OF THE PROGRAM WITH WHICH WE ARE DEALING, NOR MUST WE FORGET THAT MOST
OF THE SUBJECTS OF GOVERNMENTAL ACTION IN THESE CASES ARE INEXPERIENCED
YOUTHS, MANY ONLY 18 YEARS OF AGE, OFTEN UNREPRESENTED BY ATTORNEYS.  I
AM UNWILLING TO GIVE TO A STATUTE CONCEIVED IN SUCH A CONTEXT A
CONSTRUCTION WHICH RESULTS IN A YOUNG MAN OF UNBLEMISHED REPUTATION,
WHO CLAIMS RELIGIOUS SCRUPLES, BEING SENT TO PRISON FOR 15 MONTHS
WITHOUT HAVING RECEIVED A FULL AND FAIR CONSIDERATION OF HIS CASE.  I
SAY THIS WITH ASSURANCE THAT CONGRESS DID NOT INTEND THAT THESE
HUMANITARIAN BENEFITS OF THE ACT BE ACCORDED GRUDGINGLY.  I DISSENT. 
FN1  IN SICURELLA, WHICH INVOLVED A MEMBER OF JEHOVAH'S WITNESSES, WE
HELD THAT THE PETITIONER'S WILLINGNESS TO FIGHT IN DEFENSE OF HIS
"MINISTRY, KINGDOM INTERESTS, AND  ...  HIS FELLOW BRETHREN" WAS NOT,
UNDER THE CIRCUMSTANCES, A SUFFICIENT BASIS UPON WHICH TO DENY HIM
EXEMPTION AS A CONSCIENTIOUS OBJECTOR.    FN2  THE LOCAL BOARD
MEMORANDUM READS IN FULL AS FOLLOWS: 

"WHEN ASKED BY THE MEMBERS OF LOCAL BOARD NO. 9, BOULDER, COLORADO,
IF HE THOUGHT HE WAS ENTITLED TO ANY OTHER CLASSIFICATION THAN THAT OF
I-A, MR. GONZALES REPLIED, 'I AM A MINISTER AND AS SUCH SHOULD BE
CLASSIFIED 4-D.  ALSO, A MINISTER IS AUTOMATICALLY CLASSIFIED AS A
CONSCIENTIOUS OBJECTOR.'  THE BOARD REPLIED THAT THIS STATEMENT WAS IN
ERROR. 

"MR. GONZALES THEN WENT ON TO SAY THAT HE HAD ALWAYS MADE THE CLAIM
THAT HE WAS A MINISTER EVEN AT THE VERY BEGINNING OF HIS REGISTRATION. 
HE STILL MADE THE STATEMENT THAT IF I AM A MINISTER I AM A
CONSCIENTIOUS OBJECTOR. 

"WHEN ASKED IF HE WOULD PARTICIPATE IN THE CONSCIENTIOUS OBJECTOR
WORK PROGRAM, HE STATED DEFINITELY NOT. 

"MR. GONZALES STATED 'I AM A REGULAR MINISTER AS DEFINED UNDER
SERVICE ACT OF 1948.  AT PRESENT I AM DEVOTING AN AVERAGE OF 100 HOURS
A MONTH TO ACTUAL PREACHING PUBLICLY AND FROM HOUSE TO HOUSE, AND AN
ADDITIONAL 50-75 HOURS IN PREPARATION FOR MINISTERIAL DUTIES SUCH AS;
PREPARATION FOR HOME BIBLE STUDIES; CALLING BACK ON GOOD-WILL PERSONS;
ATTENDING CONGREGATIONAL MEETINGS, AS WELL AS TRAINING STUDENTS TO
BECOME MINISTERS.  I ALSO SERVE AS STOCK SERVANT FOR THE LOCAL
CONGREGATION.  AS YOU PERHAPS ALREADY KNOW THAT THE SELECTIVE SERVICE
NATIONAL HEADQUARTERS HAS DETERMINED THAT JEHOVAH'S WITNESSES AND THE
WATCHTOWER BIBLE AND TRACT SOCIETY CONSTITUTES A RECOGNIZED RELIGIOUS
ORGANIZATION AND THAT ALL JEHOVAH'S WITNESSES WHO ARE REGULARLY AND
CUSTOMARILY TEACHING AND PREACHING THE DOCTRINES AND PRINCIPLES OF THE
BIBLE AS ADVOCATED BY JEHOVAH'S WITNESSES AS A VOCATION AND NOT
INCIDENTALLY ARE ENTITLED TO EXEMPTION AS MINISTERS OF RELIGION.  THESE
ARE SOME OF THE REASONS I REQUEST A 4-D CLASSIFICATION, SO I WOULD LIKE
FOR YOU TO FURTHER CONSIDER MY CASE AS A MINISTER OF THE GOSPEL OR
WOULD LIKE TO APPEAR IN PERSON BEFORE THE LOCAL BOARD MEMBERS FOR
FURTHER CONSIDERATION OR DISCUSSION IN REGARD TO MY CASE.' 

"WHEN ASKED BY THE BOARD IF HE HAD ANY FURTHER INFORMATION TO SUBMIT,
HE STATED HE SUBMITTED NO NEW EVIDENCE EXCEPT WHAT WAS STATED ABOVE,
BUT WOULD LIKE TO SUBMIT A CERTIFICATE OF MARRIAGE AS THE ONLY NEW
MATTER TOO BE BROUGHT BEFORE THE BOARD." 

THE ITALICIZED PORTION REPEATS THE STATEMENT PETITIONER MADE IN HIS
1952 LETTER TO THE LOCAL BOARD.  THE SIGNIFICANCE OF THIS REPETITION IS
DISCUSSED INFRA. 

FN3  SEE THE ITALICIZED PORTION OF THE BOARD'S MEMORANDUM, NOTE 2,
SUPRA. 

FN4  62 STAT. 613, AS AMENDED, 50 U.S.C. APP. SEC. 456(J). 

FN5  SEE SMITH AND BELL, "THE CONSCIENTIOUS-OBJECTOR PROGRAM - A
SEARCH FOR SINCERITY," 19 U. PITT.  L. REV. 695, 702. 

NF6  NOTE 4, SUPRA.
..END :

















UNITED STATES V. CANNELTON SEWER PIPE CO. 364 U.S. 76 


NO. 513.  ARGUED MAY 19, 1960 - DECIDED JUNE 27, 1960 - 268 F.2D 334,
REVERSED. 


THE INTERNAL REVENUE CODE OF 1939 PERMITTED TAXPAYERS TO DEDUCT AS A
DEPLETION ALLOWANCE A PERCENTAGE OF "GROSS INCOME FROM MINING" AND
DEFINED "MINING" AS INCLUDING THE "ORDINARY TREATMENT PROCESSES
NORMALLY APPLIED BY MINE OWNERS  ...  TO OBTAIN THE COMMERCIALLY
MARKETABLE MINERAL PRODUCT OR PRODUCTS."  RESPONDENT MINES FIRE CLAY
AND SHALE FOR WHICH THERE IS A MARKET BUT WHICH IT UTILIZES TO
MANUFACTURE SEWER PIPE AND OTHER VITRIFIED ARTICLES.  IT CLAIMS THAT IT
COULD NOT PROFITABLY MARKET ITS RAW FIRE CLAY AND SHALE WITHOUT
PROCESSING THEM INTO FINISHED PRODUCTS.  HELD:  RESPONDENT'S DEPLETION
ALLOWANCE MUST BE BASED, NOT UPON THE VALUE OF THE SEWER PIPE AND OTHER
VITRIFIED PRODUCTS WHICH IT MANUFACTURES, BUT UPON THE VALUE OF ITS RAW
FIRE CLAY AND SHALE AFTER APPLICATION OF ORDINARY TREATMENT PROCESSES
NORMALLY APPLIED IN THE RECOVERY OF THOSE MATERIALS BY MINERS NOT
ENGAGED IN THE MANUFACTURE OF FINISHED PRODUCTS.  PP. 77-90. 

(A)  CONGRESS INTENDED TO GRANT MINERS A DEPLETION ALLOWANCE BASED ON
THE CONSTRUCTIVE INCOME FROM THE RAW MINERAL PRODUCT, IF MARKETABLE IN
THAT FORM, AND NOT ON THE VALUE OF FINISHED ARTICLES.  PP. 81-86. 

(B)  A DEPLETION ALLOWANCE IS AN ALLOWANCE FOR THE EXHAUSTION OF
CAPITAL ASSETS - NOT A SUBSIDY TO MANUFACTURERS OR TO HIGH-COST MINE
OPERATORS.  P. 86. 

(C)  THAT RESPONDENT IS BOTH A MINER AND A MANUFACTURER DOES NOT
ENTITLE IT TO TREATMENT DIFFERENT FROM THAT ACCORDED MINERS OF THE SAME
RAW MATERIALS WHO ARE NOT MANUFACTURERS.  PP. 86-88. 

(D)  THAT RESPONDENT'S UNDERGROUND METHOD OF MINING PREVENTS IT FROM
SELLING ITS RAW FIRE CLAY AND SHALE DOES NOT ENTITLE IT TO TREATMENT
DIFFERENT FROM THAT ACCORDED TO THE OTHER MINERS OF THE SAME RAW
MATERIALS.  PP. 88-89. 

UNITED STATES V. CANNELTON SEWER PIPE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS INCOME TAX REFUND SUIT INVOLVES THE STATUTORY PERCENTAGE
DEPLETION ALLOWANCE TO WHICH RESPONDENT, AN INTEGRATED MINER
MANUFACTURER OF BURNT CLAY PRODUCTS FROM FIRE CLAY AND SHALE, IS
ENTITLED UNDER THE INTERNAL REVENUE CODE OF 1939.  (FN1) 

THE PERCENTAGE GRANTED BY THE STATUTE IS ON RESPONDENT'S "GROSS
INCOME FROM MINING."  IT DEFINES "MINING" TO INCLUDE THE "ORDINARY
TREATMENT PROCESSES NORMALLY APPLIED BY MINE OWNERS  ...  TO OBTAIN THE
COMERCIALLY MARKETABLE MINERAL PRODUCT OR PRODUCTS."  RESPONDENT
CLAIMED THAT ITS FIRST "COMMERCIALLY MARKETABLE MINERAL PRODUCT" IS
SEWER PIPE AND OTHER VITRIFIED ARTICLES.  ALTERNATIVELY, IT CONTENDED
THAT DEPLETION SHOULD BE BASED ON THE PRICE OF 80 TONS OF GROUND FIRE
CLAY AND SHALE ACTUALLY SOLD DURING THE TAX YEAR IN QUESTION.  THE
DISTRICT COURT AGREED WITH RESPONDENT'S FIRST CLAIM.  THE COURT OF
APPEALS AFFIRMED, HOLDING THAT RESPONDENT COULD NOT PROFITABLY SELL ITS
RAW FIRE CLAY AND SHALE WITHOUT PROCESSING IT INTO FINISHED PRODUCTS,
AND THAT ITS STATUTORY PERCENTAGE DEPLETION WAS THEREFORE PROPERLY
BASED ON ITS GROSS SALES OF THE LATTER.  268 F.2D 334.  THE GOVERNMENT
CONTENDS THAT THE PRODUCT FROM WHICH "GROSS INCOME FROM MINING" IS
COMPUTED IS AN INDUSTRY-WIDE TEST AND CANNOT BE REDUCED TO A PARTICULAR
OPERATION THAT A TAXPAYER MIGHT FIND PROFITABLE.  THE GOVERNMENT
FURTHER ARGUES THAT, WHILE THE STATUTE PERMITS ORDINARY TREATMENT
PROCESSES NORMALLY APPLIED BY MINERS TO THE RAW PRODUCT OF THEIR MINES
TO PRODUCE A COMMERCIALLY MARKETABLE MINERAL PRODUCT, IT DOES NOT
EMBRACE THE FABRICATION OF THE MINERAL PRODUCT INTO FINISHED ARTICLES. 
IN VIEW OF THE IMPORTANCE OF THE QUESTION TO TAXPAYERS AS WELL AS TO
THE GOVERNMENT, WE GRANTED CERTIORARI.  361 U.S. 923.  WE DISAGREE WITH
RESPONDENT'S CONTENTION THAT THE ISSUE IS NOT PRESENTED BY THIS RECORD,
AND WE THEREFORE REACH THE MERITS.  WE HAVE CONCLUDED THAT, UNDER THE
MANDATE OF THE STATUTE, RESPONDENT'S "GROSS INCOME FROM MINING" UNDER
THE FINDINGS HERE IS THE VALUE OF ITS RAW FIRE CLAY AND SHALE, AFTER
THE APPLICATION OF THE ORDINARY TREATMENT PROCESSES NORMALLY APPLIED BY
NONINTEGRATED MINERS ENGAGED IN THE RECOVERY OF THOSE MINERALS.  (FN2)

                   I. 

DURING THE TAX YEAR ENDING NOVEMBER 30, 1951, THE RESPONDENT OWNED
AND OPERATED AN UNDERGROUND MINE FROM WHICH IT PRODUCED FIRE CLAY AND
SHALE IN PROPORTIONS OF 60% FIRE CLAY AND 40% SHALE.  IT TRANSPORTED
THE RAW MINERAL PRODUCT BY TRUCK TO ITS PLANT AT CANNELTON, INDIANA,
ABOUT ONE AND ONE-HALF MILES DISTANT.  THERE IT PROCESSED AND
FABRICATED THE FIRE CLAY AND SHALE INTO VITRIFIED SEWER PIPE, FLUE
LINING AND RELATED PRODUCTS.  IN THIS PROCESS, THE CLAY AND SHALE IS
FIRST GROUND INTO A PULVERIZED FORM ABOUT AS FINE AS TALCUM POWDER. 
THE POWDER IS THEN MIXED WITH WATER IN A PUG MILL AND BECOMES A PLASTIC
MASS, WHICH IS FORMED BY MACHINES INTO THE SHAPE OF THE FINISHED WARE
DESIRED.  THE WARE IS THEN PLACED IN DRYERS WHERE HEAT OF LESS THAN 212
DEGREES IS APPLIED TO REMOVE ALL OF THE WATER.  THIS PROCESS TAKES FROM
12 HOURS TO 3 WEEKS, DEPENDING ON THE SIZE OF THE WARE.  THEREAFTER THE
WARE IS VITRIFIED IN KILNS AT 2,200 DEGREES FAHRENHEIT, REQUIRING FROM
60 TO 210 HOURS.  IT IS THEN COOLED, GRADED AND EITHER SHIPPED OR
STORED. 

NOT ALL CLAYS AND SHALES ARE SUITABLE FOR RESPONDENT'S OPERATIONS. 
THEY MUST HAVE PLASTICITY, SPECIAL DRYING QUALITIES AND BE ABLE TO
WITHSTAND HIGH TEMPERATURES.  RESPONDENT'S CLAY, KNOWN AS CANNELTON
CLAY, IS THE DEEPEST CLAY MINED IN INDIANA AND, RESPONDENT SAYS, YIELDS
THE BEST SEWER PIPE.  ITS COST OF REMOVING AND DELIVERING THE SAME TO
ITS PLANT WAS $2.418 PER TON IN 1951.  RESPONDENT USED SOME 38,473 TONS
OF CLAY AND SHALE IN ITS OPERATIONS THAT YEAR AND SOLD APPROXIMATELY 80
TONS OF GROUND FIRE CLAY AND SHALE IN BAGS AT A PRICE OF $22.88 PER
TON.  NET SALES OF ITS FINISHED WARES AMOUNTED TO APPROXIMATELY ONE AND
A HALF MILLION DOLLARS. 

IN CONNECTION WITH ITS TAX ASSESSMENT FOR THE YEAR IN QUESTION,
RESPONDENT FILED A DOCUMENT IN WHICH IT STATED THAT "WE USED AS A BASIS
FOR CALCULATING THE GROSS INCOME FROM OUR MINING OPERATIONS OF SHALE
AND FIRE CLAY THE POINT IN OUR MANUFACTURING OPERATIONS AT WHICH WE
FIRST ARRIVE WITH A COMMERCIALLY MARKETABLE PRODUCT, WHICH IS GROUND
FIRE CLAY.  THIS PRODUCT ARRIVES AFTER THE RAW MINERAL IS CRUSHED AND
GRANULATED TO SUCH EXTENT THAT BY THE ADDITION OF WATER IT CAN BE MADE
INTO A MORTAR FOR USE IN LAYING OR SETTING FIRE OR REFRACTORY BRICK. 
THIS GROUND FIRE CLAY HAS A DEFINITE MARKET AND AN ASCERTAINABLE MARKET
VALUE AT ANY PARTICULAR TIME AND IS THE SAME PRODUCT FROM WHICH OUR END
PRODUCT, SEWER TILE, IS MADE SIMPLY BY THE ADDITION OF WATER AND THE
NECESSARY BAKING PROCESS."  IN THIS RETURN IT BASED THE VALUE OF THE
GROUND FIRE CLAY AT $22.81 PER TON, THE PRICE FOR WHICH IT SOLD SOME 80
TONS OF THAT MATERIAL IN BAGS DURING 1951.  AT THIS FIGURE THE
DEPLETION ALLOWANCE WOULD HAVE BEEN SLIGHTLY ABOVE $2 PER TON. 
THEREAFTER RESPONDENT CLAIMED ERROR AND ASSERTED THAT ITS MINERAL
PRODUCT, RATHER THAN BEING COMMERCIALLY MARKETABLE WHEN IT REACHED THE
STAGE OF GROUND FIRE CLAY, ONLY BECAME COMMERCIALLY MARKETABLE WHEN IT
BECAME A FINISHED PRODUCT, E.G., SEWER PIPE.  ON THIS BASIS, THE
DEPLETION ALLOWANCE ON PETITIONER'S GROSS INCOME WOULD BE APPROXIMATELY
$4 PER TON, SINCE THE MINERAL WOULD HAVE A VALUE OF ABOUT $40 PER TON. 
ONE THE OTHER HAND, IF THE MINERAL IT USED IN 1951 WAS VALUED AT $1.60
TO $1.90 PER TON, THE GOING PRICE ELSEWHERE IN INDIANA, THE DEPLETION
ALLOWANCE WOULD BE APPROXIMATELY 20 CENTS PER TON. 

THE RECORD SHOWS AND THE DISTRICT COURT FOUND THAT IN 1951 THERE WERE
SUBSTANTIAL SALES OF RAW FIRE CLAY AND SHALE IN INDIANA, MOSTLY IN THE
VICINITY OF BRAZIL, ABOUT 140 MILES FROM CANNELTON.  THE AVERAGE PRICE
THERE WAS $1.60 TO $1.90 PER TON FOR FIRE CLAY AND $1 PER TON FOR
SHALE.  TRANSPORTATION COSTS FROM BRAZIL TO CANNELTON RAN FROM $4.58 TO
$5.50 PER TON.  IN KENTUCKY, ACROSS THE RIVER FROM RESPONDENT'S PLANT,
IT APPEARS THAT FIRE CLAY AND SHALE OF THE SAME GRADE WERE MINED AND
SOLD (FN3) BEFORE, DURING AND SUBSEQUENT TO 1951.  IN FACT, SINCE 1957
RESPONDENT HAS SECURED ALL OF ITS MINERAL REQUIREMENTS FROM THIS SOURCE
ON A LEASE BASIS UNDER WHICH THE LESSOR MINES AND DELIVERS THE RAW
MATERIAL TO ITS PLANT.  THE EXACT COST IS NOT SHOWN, BUT THE HAUL IN
1957 FROM PIT TO PLANT, INCLUDING THE FERRY CROSSING, WAS SOME SEVEN
MILES. 

                                             II. 

WE HAVE CAREFULLY STUDIED THE LEGISLATIVE HISTORY OF THE DEPLETION
ALLOWANCE, INCLUDING THE VOLUMINOUS MATERIALS FURNISHED BY THE PARTIES,
NOT ONLY IN THEIR BRIEFS BUT IN THE EXHAUSTIVE APPENDICES AND THE
RECORD.  (FN4)  WE SHALL NOT BURDEN THIS OPINION WITH ITS REPETITION. 

IN SUMMARY, MINERAL DEPLETION FOR TAX PURPOSES IS AN ALLOWANCE FROM
INCOME FOR THE EXHAUSTION OF CAPITAL ASSETS.  ANDERSON V. HELVERING,
310 U.S. 404 (1940).  IN ADDITION, IT IS BASED ON THE BELIEF THAT ITS
ALLOWANCE ENCOURAGES EXTENSIVE EXPLORATION AND INCREASING DISCOVERIES
OF ADDITIONAL MINERALS TO THE BENEFIT OF THE ECONOMY AND STRENGTH OF
THE NATION.  WE ARE NOT CONCERNED WITH THE VALIDITY OF THIS THEORY OR
WITH THE STATUTORY POLICY.  OUR SOLE FUNCTION IS APPLICATION OF THE
CONGRESSIONAL MANDATE.  A STUDY OF THE MATERIALS INDICATES THAT
PERCENTAGE DEPLETION FIRST CAME INTO THE TAX STRUCTURE IN 1926, WHEN
THE CONGRESS GRANTED IT TO OIL AND GAS PRODUCERS.  THE PERCENTAGE
ALLOWED WAS BASED ON "GROSS INCOME FROM THE PROPERTY," WHICH WAS
DESCRIBED AS "THE GROSS RECEIPTS FROM THE SALE OF OIL AND GAS AS IT IS
DELIVERED FROM THE PROPERTY."  PRELIMINARY REPORT, JOINT COMMITTEE ON
INTERNAL REVENUE TAXATION, VOL. I, PART 2 (1927).  THE REPORT CONTINUED
THAT, AS TO THE INTEGRATED OPERATOR, "THE GROSS INCOME FROM THE
PROPERTY MUST BE COMPUTED FROM THE PRODUCTION AND POSTED PRICE OF OIL,
AS THE GROSS RECEIPTS FROM A REFINED AND TRANSPORTED PRODUCT CAN NOT BE
USED IN DETERMINING THE INCOME AS RELATING TO AN INDIVIDUAL TRACT OR
LEASE."  THE TREASURY REGULATIONS CONFIRMED THIS UNDERSTANDING.  TREAS.
REG. 74 (1929 ED.), ARTS. 221(I), 241. 

THEREAFTER, IN 1932, PERCENTAGE DEPLETION WAS EXTENDED TO METAL
MINES, COAL, AND SULPHUR.  THE MINING ENGINEER OF THE JOINT COMMITTEE,
ALEX R. SHEPHERD, URGED IN A REPORT TO THE CONGRESS (FN5) THAT
DEPLETION FOR METAL MINES BE COMPUTED, AS IN THE OIL AND GAS INDUSTRY,
ON A PERCENTAGE-OF-INCOME BASIS, AND THE REVENUE ACT OF 1932 WAS SO
DRAWN.  THE SHEPHERD REPORT POINTED OUT THAT THE PERCENTAGE BASIS FOR
OIL AND GAS DEPLETION HAD BEEN IN FORCE FOR OVER A YEAR AND HAD
"FUNCTIONED SATISFACTORILY BOTH FROM ECONOMICAL AND ADMINISTRATIVE
VIEWPOINTS AND WITHOUT LOSS OF REVENUE."  IT ADDED THAT "CAREFUL STUDY
OF THIS METHOD AS APPLIED TO METAL MINES INDICATES THAT THE SAME
RESULTS WILL BE ATTAINED IN PRACTICE AS IN THE CASE OF OIL AND GAS,"
BUT THAT, BECAUSE OF VARIED PRACTICES IN THE MINING INDUSTRY, IT WOULD
BE NECESSARY TO DETERMINE "THE POINT IN ACCOUNTING AT WHICH" GROSS
INCOME FROM THE PROPERTY MINED COULD BE CALCULATED.  IT RECOMMENDED
THAT "IT IS LOGICAL TO PEG 'GROSS INCOME FROM THE PROPERTY' F.O.B. CARS
AT MINE," I.E., NET SMELTER RETURNS, RECOGNIZING THAT PROCESSING BEYOND
THIS POINT SHOULD NOT BE INCLUDED IN CALCULATING "GROSS INCOME FROM THE
PROPERTY."  WHILE AS TO CERTAIN METALS, VIZ., GOLD, SILVER, OR COPPER,
THE REPORT SUGGESTED THAT GROSS INCOME SHOULD BE BASED ON RECEIPTS FROM
"THE SALE OF THE CRUDE, PARTIALLY BENEFICIATED OR REFINED" PRODUCT,
THIS WAS BUT TO MAKE PROVISION FOR THE SPECIFIC OPERATIONS OF MINERS IN
THOSE METALS.  IN THIS REGARD THE REPORT ALSO PROPOSED THAT THE
DEPLETION BASE, "IN THE CASE OF ALL OTHER METALS, COAL AND OIL AND GAS,
SHOULD BE THE COMPETITIVE MARKET RECEIPTS, OR ITS EQUIVALENT, RECEIVED
FROM THE SALE OF THE CRUDE PRODUCTS, OR CONCENTRATES ON AN F.O.B. MINE,
MILL, OR WELL BASIS." 

THE CONGRESS IN FASHIONING THE 1932 ACT TOOK INTO ACCOUNT THESE
RECOMMENDATIONS.  IT INCORPORATED A PROVISION IN THE ACT ALLOWING
PERCENTAGE DEPLETION FOR COAL AND METAL MINES AND SULPHUR, BASED ON THE
"GROSS INCOME FROM THE PROPERTY."  SEC. 114(B)(4), REVENUE ACT OF 1932,
47 STAT. 169.  ON THE FOLLOWING FEBRUARY 10, 1933, THE TREASURY ISSUED
ITS REGULATIONS 77, WHICH DEFINED "GROSS INCOME FROM THE PROPERTY" AS
"THE AMOUNT FOR WHICH THE TAXPAYER SELLS (A) THE CRUDE MINERAL PRODUCT
OF THE PROPERTY OR (B) THE PRODUCT DERIVED THEREFROM, NOT TO EXCEED IN
THE CASE OF (A) THE REPRESENTATIVE MARKET OR FIELD PRICE  ...  OR IN
THE CASE OF (B) THE REPRESENTATIVE MARKET OR FIELD PRICE  ...  OF
PRODUCT OF THE KIND AND GRADE FROM WHICH THE PRODUCT SOLD WAS DERIVED,
BEFORE THE APPLICATION OF ANY PROCESSES  ...  WITH THE EXCEPTION OF
THOSE LISTED  ...  ."  TREAS.  REG. 77, ART. 221(G).  THESE EXCEPTIONS
LISTED PROCESSES NORMALLY IN USE IN THE MINING INDUSTRY FOR PREPARING
THE MINERAL AS A MARKETABLE SHIPPING PRODUCT.  THE REGULATION WAS OF
UNQUESTIONED VALIDITY AND, IN 1943, AT THE INSTANCE OF THE INDUSTRY,
THE CONGRESS SUBSTANTIALLY EMBODIED IT INTO THE STATUTE ITSELF, 59
STAT. 21, 44, INCLUDING THE BASIC DEFINITION OF THE TERM "GROSS INCOME
FROM THE PROPERTY."  (FN6) SINCE THAT TIME THE SECTION ON PERCENTAGE
DEPLETION - SEC. 114(B)(4)(B) OF THE 1939 CODE - HAS REMAINED BASICALLY
THE SAME.  (FN7)  ADDITIONAL MINERALS HAVE BEEN ADDED FROM TIME TO TIME
- SHALE AND FIRE CLAY IN 1951 - UNTIL PRACTICALLY ALL MINERALS ARE
INCLUDED. 

AS NOW ENACTED, THE SECTION PROVIDES THAT "MINING" INCLUDES "NOT
MERELY THE EXTRACTION OF THE ORES OR MINERALS FROM THE GROUND BUT ALSO
THE ORDINARY TREATMENT PROCESSES NORMALLY APPLIED BY MINE OWNERS OR
OPERATORS IN ORDER TO OBTAIN THE COMMERCIALLY MARKETABLE MINERAL
PRODUCT OR PRODUCTS," PLUS TRANSPORTATION FROM THE PLACE OF EXTRACTION
TO THE "PLANTS OR MILLS IN WHICH THE ORDINARY TREATMENT PROCESSES ARE
APPLIED THERETO," NOT EXCEEDING 50 MILES.  (FN8)  IT THEN DEFINES
"ORDINARY TREATMENT PROCESSES" BY SETTING OUT SPECIFICALLY IN FOUR
CATEGORIES THOSE COVERING SOME 17 NAMED MINERALS.  FIRE CLAY AND SHALE
ARE NOT WITHIN THESE SPECIFIC ENUMERATIONS.  THE GOVERNMENT, HOWEVER,
CONTENDS THAT THEY SHOULD COME WITHIN CLAUSE (III) OF THE SECTION,
WHICH PROVIDES THAT, "IN THE CASE OF IRON ORE, BAUXITE, BALL AND SAGGER
CLAY, ROCK ASPHALT, AND MINERALS WHICH ARE CUSTOMARILY SOLD IN THE FORM
OF A CRUDE MINERAL PRODUCT - SORTING, CONCENTRATING, AND SINTERING TO
BRING TO SHIPPING GRADE AND FORM, AND LOADING FOR SHIPMENT  ...  " ARE
INCLUDED IN "ORDINARY TREATMENT PROCESSES."  CLAUSE (IV) LISTS SPECIFIC
METALS SUCH AS LEAD, ZINC, COPPER, ETC., "AND ORES WHICH ARE NOT
CUSTOMARILY SOLD IN THE FORM OF CRUDE MINERAL PRODUCT," AND
SPECIFICALLY EXCLUDES FROM THE PERMISSIBLE PROCESSES CERTAIN ONES USED
IN CONNECTION WITH THESE METALS.  TO RECAPITULATE, THE SECTION CONTAINS
FOUR CATEGORIES OF "ORDINARY TREATMENT PROCESSES":  THE FIRST
ENUMERATING THOSE PERMISSIBLE AS TO THE MINING OF COAL; THE SECOND, AS
TO SULPHUR; THE THIRD, AS TO MINERALS CUSTOMARILY SOLD IN THE FORM OF
THE CRUDE MINERAL PRODUCT; AND THE FOURTH, AS TO THOSE ORES NOT
CUSTOMARILY SO SOLD.  WE NOTE THAT THE CONGRESS EVEN STATES THE STEPS
IN EACH PERMISSIBLE PROCESS, AND IN ADDITION SPECIFICALLY DECLARES SOME
PROCESSES NOT TO BE "ORDINARY TREATMENT" ONES, VIZ., "ELECTROLYTIC
DEPOSITION, ROASTING, THERMAL OR ELECTRIC SMELTING, OR REFINING." 
FURTHERMORE, NONE OF THE PERMISSIBLE PROCESSES DESTROY THE PHYSICAL OR
CHEMICAL IDENTITY OF THE MINERALS OR PERMIT THEM TO BE TRANSFORMED INTO
NEW PRODUCTS.    FROM THIS LEGISLATIVE HISTORY, WE CONCLUDE THAT
CONGRESS INTENDED TO GRANT MINERS A DEPLETION ALLOWANCE BASED ON THE
CONSTRUCTIVE INCOME FROM THE RAW MINERAL PRODUCT, IF MARKETABLE IN THAT
FORM, AND NOT ON THE VALUE OF THE FINISHED ARTICLES. 

                                        III. 

THE FINDINGS ARE THAT THREE-FIFTHS OF THE FIRE CLAY PRODUCED IN
INDIANA IN 1951 WAS SOLD IN ITS RAW STATE.  THIS INDICATES A
SUBSTANTIAL MARKET FOR THE RAW MATERIAL.  IN ADDITION, LARGE SALES OF
RAW FIRE CLAY AND SHALE WERE MADE ACROSS THE RIVER IN KENTUCKY.  THIS
INDICATES THAT FIRE CLAY AND SHALE WERE "COMMERCIALLY MARKETABLE" IN
THEIR RAW STATE UNLESS THAT PHRASE ALSO IMPLIES MARKETABILITY AT A
PROFIT.  WE BELIEVE IT DOES NOT.  PROOF OF THESE SALES IS SIGNIFICANT
NOT BECAUSE IT REVEALS AN ABILITY TO SELL PROFITABLY - WHICH THE
RESPONDENT COULD NOT DO - BUT BECAUSE THE SUBSTANTIAL TONNAGE BEING
SOLD IN A RAW STATE PROVIDES CONCLUSIVE PROOF THAT, WHEN EXTRACTED FROM
THE MINE, THE FIRE CLAY AND SHALE ARE IN SUCH A STATE THAT THEY ARE
READY FOR INDUSTRIAL USE OR CONSUMPTION - IN SHORT, THEY HAVE PASSED
THE "MINING" STATE ON WHICH THE DEPLETION PRINCIPLE OPERATES.  IT WOULD
BE STRANGE, INDEED, TO ASCRIBE TO THE CONGRESS AN INTENT TO PERMIT EACH
MINER TO ADOPT PROCESSES PECULIAR TO HIS INDIVIDUAL OPERATION. 
DEPLETION, AS WE HAVE SAID, IS AN ALLOWANCE FOR THE EXHAUSTION OF
CAPITAL ASSETS.  IT IS NOT A SUBSIDY TO MANUFACTURERS OR THE HIGH-COST
MINE OPERATOR.  THE VALUE OF RESPONDENT'S VITRIFIED CLAY PRODUCTS,
OBTAINED BY EXPENSIVE MANUFACTURING PROCESSES, BEARS LITTLE RELATION TO
THE VALUE OF ITS MINERALS.  THE QUESTION IN DEPLETION IS WHAT ALLOWANCE
IS NECESSARY TO PERMIT TAX-FREE RECOVERY OF THE CAPITAL VALUE OF THE
MINERALS. 

RESPONDENT INSISTS THAT ITS MINER-MANUFACTURER STATUS MAKES SOME
DIFFERENCE.  WE THINK NOT.  IT IS TRUE THAT THE INTEGRATED MINERS IN
INDIANA OUTNUMBERED THE NONINTEGRATED ONES.  BUT IN EACH OF THE THREE
BASIC PERCENTAGE DEPLETION ACTS THE CONGRESS INDICATED THAT INTEGRATED
OPERATORS SHOULD NOT RECEIVE PREFERRED TREATMENT.  FUTHERMORE, IN
REGULATIONS 77, DISCUSSED ABOVE, THE TREASURY SPECIFICALLY PROVIDED
THAT DEPLETION WAS ALLOWABLE ONLY ON THE CRUDE MINERAL PRODUCT.  AND,
AS WE HAVE SAID, THIS REGULATION WAS SUBSTANTIALLY ENACTED INTO THE
1943 ACT.  WE NEED NOT TARRY TO DEAL WITH ANY DIFFERENCES WHICH ARE
SAID TO HAVE EXISTED IN ADMINISTRATIVE INTERPRETATION, FOR HERE WE HAVE
AUTHORITATIVE CONGRESSIONAL ACTION ITSELF.  EVER SINCE THE FIRST
PERCENTAGE DEPLETION STATUTE, THE CUT-OFF POINT WHERE "GROSS INCOME
FROM MINING" STOPPED HAS BEEN THE SAME, I.E., WHERE THE ORDINARY MINER
SHIPPED THE PRODUCT OF HIS MINE.  RESPONDENT'S FORMULA WOULD NOT ONLY
GIVE IT A PREFERENCE OVER THE ORDINARY NONINTEGRATED MINER, BUT ALSO
WOULD GRANT IT A DECIDED COMPETITIVE ADVANTAGE OVER ITS NONINTEGRATED
MANUFACTURER COMPETITOR.  CONGRESS NEVER INTENDED THAT DEPLETION CREATE
SUCH A DISCRIMINATORY SITUATION.  AS WE SEE IT, THE MINER-MANUFACTURER
IS BUT SELLING TO HIMSELF THE CRUDE MINERAL THAT HE MINES, INSOFAR AS
THE DEPLETION ALLOWANCE IS CONCERNED. 

          IV. 

WE NOW REACH WHAT "ORDINARY TREATMENT PROCESSES" ARE AVAILABLE TO
RESPONDENT UNDER THE STATUTE.  AS THE PRINCIPAL INDUSTRY WITNESS PUT IT
AT HEARINGS BEFORE THE CONGRESS: "OBVIOUSLY IT WAS NOT THE INTENT OF
CONGRESS THAT THOSE PROCESSES WHICH WOULD TAKE YOUR PRODUCTS AND MAKE
THEM INTO DIFFERENT PRODUCTS HAVING VERY DIFFERENT USES SHOULD BE
CONSIDERED, AS THE BASIS OF DEPLETION."  (FN9)  BUT RESPONDENT SAYS
THAT THE PROCESSES IT USES ARE THE ORDINARY ONES APPLIED IN THE
INDUSTRY.  AS TO THE MINER-MANUFACTURER, THAT IS TRUE.  BUT THEY ARE
NOT THE "ORDINARY" NORMAL ONES APPLIED BY THE NONINTEGRATED MINER.  IT
WAS HE WHOM THE CONGRESS MADE THE OBJECT OF THE ALLOWANCE.  THE
FABRICATION PROCESSES USED BY RESPONDENT IN MANUFACTURING SEWER PIPE
WOULD NOT BE EMPLOYED BY THE RUN-OF-THE-MILL MINER - ONLY AN INTEGRATED
MINER-MANUFACTURER WOULD HAVE OCCASION TO USE THEM. 

RESPONDENT FURTHER CONTENDS, HOWEVER, THAT IT MUST UTILIZE THESE
PROCESSES IN ORDER TO OBTAIN A "COMMERCIALLY MARKETABLE MINERAL PRODUCT
OR PRODUCTS."  IT POINTS OUT THAT ITS UNDERGROUND METHOD OF MINING
PREVENTS IT FROM SELLING ITS RAW FIRE CLAY AND SHALE.  THIS POSITION
LEADS TO THE CONCLUSION THAT RESPONDENT'S MINERAL PRODUCT HAS NO VALUE
TO IT IN THE GROUND.  IF THIS BE TRUE, THEN THERE COULD BE NO
DEPLETION.  ONE CANNOT DEPLETE NOTHING.  ON THE OTHER HAND, RESPONDENT
ALLEGES THAT ITS MINERALS YIELD "THE BEST SEWER PIPE WHICH IS MADE IN
INDIANA."  IF THIS BE TRUE, THEN RESPONDENT'S PROBLEM IS ONE PURELY OF
COST OF RECOVERY, AN ITEM WHICH, AS WE HAVE SAID, HAS NOTHING TO DO
WITH VALUE IN THE DEPLETION FORMULAE.  DEPLETION, AS WE READ THE
LEGISLATIVE HISTORY, WAS DESIGNED NOT TO RECOMPENSE FOR COSTS OF
RECOVERY BUT FOR EXHAUSTION OF MINERAL ASSETS ALONE.  IF IT WERE
EXTENDED AS RESPONDENT ASKS, THE MINER-MANUFACTURER WOULD ENJOY, IN
ADDITION TO A DEPLETION ALLOWANCE ON HIS MINERALS, A SIMILAR ALLOWANCE
ON HIS MANUFACTURING COSTS, INCLUDING DEPRECIATION ON HIS MANUFACTURING
PLANT, MACHINERY AND FACILITIES.  NOR DO WE READ THE USE BY THE
CONGRESS OF THE PLURAL WORD "PRODUCTS" IN THE "COMMERCIALLY MARKETABLE"
PHRASE AS INDICATING THAT NORMAL PROCESSING TECHNIQUES MIGHT INCLUDE
THE FABRICATION OF DIFFERENT PRODUCTS FROM THE SAME MINERAL.  WE
BELIEVE THAT THE CONGRESS WAS ONLY RECOGNIZING THAT IN MINING
OPERATIONS OFTEN MORE THAN ONE MINERAL PRODUCT WAS RECOVERED IN ITS RAW
STATE. 

IN VIEW OF THE FINDING THAT SUBSTANTIAL QUANTITIES - IN FACT, THE
MAJORITY - OF THE TONNAGE PRODUCTION OF FIRE CLAY AND SHALE WERE SOLD
IN THEIR RAW STATE, WE BELIEVE THAT RESPONDENT'S MINING ACTIVITY DURING
THE YEAR IN QUESTION WOULD COME UNDER CLAUSE (III) OF THE SECTION HERE
INVOLVED.  THAT CLAUSE INCLUDES "MINERALS WHICH ARE CUSTOMARILY SOLD IN
THE FORM OF A CRUDE MINERAL PRODUCT."  WE BELIEVE THAT THE CONGRESS
INTENDED INTEGRATED MINING-MANUFACTURING OPERATIONS TO BE TREATED AS IF
THE OPERATOR WERE SELLING THE MINERAL MINED TO HIMSELF FOR
FABRICATION.  IT WOULD, OF COURSE, BE PERMISSIBLE FOR SUCH AN OPERATOR
TO CALCULATE HIS "GROSS INCOME FROM MINING" AT THE POINT WHERE
"ORDINARY" MINERS - NOT INTEGRATED - DISPOSED OF THEIR PRODUCT.  ALL
PROCESSES USED BY THE NONINTEGRATED MINER BEFORE SHIPPING THE RAW FIRE
CLAY AND SHALE WOULD UNDER SUCH A FORMULA BE AVAILABLE TO THE
INTEGRATED MINER-MANUFACTURER TO THE SAME EXTENT BUT NO MORE. 

NOR DO WE BELIEVE THAT THE DISTRICT COURT AND COURT OF APPEALS CASES
INVOLVING PERCENTAGE DEPLETION AND CITED BY RESPONDENTS ARE APPOSITE
HERE.  (FN10)  WE DO NOT, HOWEVER, INDICATE ANY APPROVAL OF THEIR
HOLDINGS.  IT IS SUFFICIENT TO SAY THAT ON THEIR FACTS THEY ARE ALL
DISTINGUISHABLE. 

IN VIEW OF THESE CONSIDERATIONS, NEITHER OF RESPONDENT'S ALTERNATE
CLAIMS FOR DEPLETION ALLOWANCE IS APPROPRIATE.  THE JUDGMENT OF THE
COURT OF APPEALS IS THEREFORE REVERSED, AND THE CAUSE REMANDED FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  THE APPLICABLE PROVISIONS OF THE CODE ARE SEC. 23(M) AND SEC.
114(B)(4).  IN GENERAL, THEY PROVIDE FOR A DEPLETION ALLOWANCE BASED ON
A PERCENTAGE OF "GROSS INCOME FROM MINING," WHICH IS SPECIFICALLY
DEFINED.  SEE NOTE 8, INFRA.  THE PERCENTAGE PERMITTED ON SHALE IS 5%,
AND ON FIRE CLAY, 15%. 

FN2  THE QUANTITY OF GROUND AND BAGGED FIRE CLAY AND SHALE ACTUALLY
SOLD IS TOO NEGLIGIBLE TO FURNISH AN APPROPRIATE BASIS FOR COMPUTING
DEPLETION. 

FN3  THE EVIDENCE INDICATES THAT, FOR $50, OWENSBORO SEWER PIPE
COMPANY BOUGHT FROM L.R. CHAPMAN FIVE ACRES OF GROUND UNDER WHICH THE
SHALE AND CLAY DEPOSITS LAY.  CONTEMPORANEOUSLY IT MADE A CONTRACT WITH
L.R. CHAPMAN, INC., TO MINE AND DELIVER SHALE AND FIRE CLAY FROM THIS
TRACT TO THE OWENSBORO PLANT FOR $1.40 PER TON.  CHAPMAN ALSO TESTIFIED
THAT IN ADDITION HE FURNISHED SHALE AND FIRE CLAY TO OTHER
MANUFACTURERS IN THE SAME AREA IN KENTUCKY.  THE ARRANGEMENTS VARIED. 
SOME WERE SIMILAR TO THE OWENSBORO AGREEMENT, WHILE OTHERS WERE LEASES
ON A ROYALTY BASIS WITH A CONTEMPORANEOUS AGREEMENT TO MINE AND DELIVER
THE CLAY AT A SET PRICE.  THE EXACT YEAR OR YEARS ARE NOT CLEAR, BUT
APPEAR TO HAVE BEEN BETWEEN 1949 AND 1956.  RESPONDENT BEGAN USING
SHALE AND FIRE CLAY FROM THE SAME SOURCE BY LEASE ARRANGEMENT IN 1957. 
THE REASON FOR LEASE ARRANGEMENTS AND PAPER TRANSFER OF TITLE IS NOT
SHOWN.  HOWEVER, CHAPMAN TESTIFIED THAT THE MANUFACTURERS "DIDN'T SEEM
TO WANT TO DO THE PROSPECTING OR THE SAMPLING UNTIL THEY WERE SURE THEY
COULD GET EITHER A LEASE OR A DEED." 

FN4  THE BRIEFS COVER 294 PAGES AND THE APPENDICES AN ADDITIONAL 685,
NOT INCLUDING 10 CHARTS.  THE RECORD IS 276 PAGES. 

FN5  PRELIMINARY REPORT ON DEPLETION, STAFF REPORTS TO THE JOINT
COMMITTEE ON INTERNAL REVENUE TAXATION (1930), APPENDIX XXXI (SHEPHERD
REPORT). 

FN6  SEE, E.G., HEARINGS BEFORE SENATE COMMITTEE ON FINANCE ON H.R.
3687, 78TH CONG., 1ST SESS. 528; S. REP. NO. 627, 78TH CONG., 1ST SESS.
23-24; HEARINGS BEFORE HOUSE COMMITTEE ON WAYS AND MEANS ON REVENUE
REVISIONS, 80TH CONG., 1ST SESS., PART 3, AT 1857; HEARINGS BEFORE
SENATE COMMITTEE ON FINANCE ON H.R. 8920, 81ST CONG., 2D SESS. 771; S.
REP. NO. 2375, 81ST CONG., 2D SESS. 53-54. 

FN7  THE PRESENT STATUTE, SEC. 613 OF THE INTERNAL REVENUE CODE OF
1954, IS ESSENTIALLY UNCHANGED. 

FN8  INTERNAL REVENUE CODE OF 1939, SEC. 114(B)(4)(B): 

"DEFINITION OF GROSS INCOME FROM PROPERTY.  - AS USED IN THIS
PARAGRAPH THE TERM 'GROSS INCOME FROM THE PROPERTY' MEANS THE GROSS
INCOME FROM MINING.  THE TERM 'MINING' AS USED HEREIN SHALL BE
CONSIDERED TO INCLUDE NOT MERELY THE EXTRACTION OF THE ORES OR MINERALS
FROM THE GROUND BUT ALSO THE ORDINARY TREATMENT PROCESSES NORMALLY
APPLIED BY MINE OWNERS OR OPERATORS IN ORDER TO OBTAIN THE COMMERCIALLY
MARKETABLE MINERAL PRODUCT OR PRODUCTS, AND SO MUCH OF THE
TRANSPORTATION OF ORES OR MINERALS (WHETHER OR NOT BY COMMON CARRIER)
FROM THE POINT OF EXTRACTION FROM THE GROUND TO THE PLANTS OR MILLS IN
WHICH THE ORDINARY TREATMENT PROCESSES ARE APPLIED THERETO AS IS NOT IN
EXCESS OF 50 MILES UNLESS THE SECRETARY FINDS THAT THE PHYSICAL AND
OTHER REQUIREMENTS ARE SUCH THAT THE ORE OR MINERAL MUST BE TRANSPORTED
A GREATER DISTANCE TO SUCH PLANTS OR MILLS.  THE TERM 'ORDINARY
TREATMENT PROCESSES,' AS USED HEREIN, SHALL INCLUDE THE FOLLOWING:  (I)
IN THE CASE OF COAL - CLEANING, BREAKING, SIZING, AND LOADING FOR
SHIPMENT; (II) IN THE CASE OF SULPHUR - PUMPING TO VATS, COOLING,
BREAKING, AND LOADING FOR SHIPMENT; (III) IN THE CASE OF IRON ORE,
BAUXITE, BALL AND SAGGER CLAY, ROCK ASPHALT, AND MINERALS WHICH ARE
CUSTOMARILY SOLD IN THE FORM OF A CRUDE MINERAL PRODUCT - SORTING,
CONCENTRATING, AND SINTERING TO BRING TO SHIPPING GRADE AND FORM, AND
LOADING FOR SHIPMENT; AND (IV) IN THE CASE OF LEAD, ZINC, COPPER, GOLD,
SILVER, OR FLUORSPAR ORES, POTASH, AND ORES WHICH ARE NOT CUSTOMARILY
SOLD IN THE FORM OF CRUDE MINERAL PRODUCT - CRUSHING, GRINDING, AND
BENEFICIATION BY CONCENTRATION (GRAVITY, FLOTATION, AMALGAMATION,
ELECTROSTATIC, OR MAGNETIC), CYANIDATION, LEACHING, CRYSTALLIZATION,
PRECIPITATION (BUT NOT INCLUDING AS AN ORDINARY TREATMENT PROCESS
ELECTROLYTIC DEPOSITION, ROASTING, THERMAL OR ELECTRIC SMELTING, OR
REFINING), OR BY SUBSTANTIALLY EQUIVALENT PROCESSES OR COMBINATION OF
PROCESSES USED IN THE SEPARATION OR EXTRACTION OF THE PRODUCT OR
PRODUCTS FROM THE ORE, INCLUDING THE FURNACING OF QUICKSILVER ORES. 
THE PRINCIPLES OF THIS SUBPARAGRAPH SHALL ALSO BE APPLICABLE IN
DETERMINING GROSS INCOME ATTRIBUTABLE TO MINING FOR THE PURPOSES OF

FN9  ROBERT M. SEARLS, ATTORNEY, SAN FRANCISCO, HEARINGS BEFORE THE
SENATE SPECIAL COMMITTEE ON THE INVESTIGATION OF SILVER, 77TH CONG., 2D
SESS., P. 764. 

FN10  RESPONDENT'S CASES ARE BASED ON UNITED STATES V. CHEROKEE BRICK
& TILE CO., 218 F.2D 424 (ADHERED TO IN UNITED STATES V. MERRY BROS.
BRICK & TILE CO., 242 F.2D 708), WHICH WENT OFF ON FACTUAL CONCESSIONS
NOT PRESENT HERE.  THEY HAVE BEEN PYRAMIDED INTO A STATISTICALLY
IMPOSING NUMBER OF CASES, PREDICATED UPON ONE ANOTHER.  CLOSE ANALYSIS
INDICATES THAT THEY EITHER GO OFF ON CONCESSIONS OR FINDINGS NOT
PRESENT HERE, OR DEAL WITH CONTROVERSIES OVER PARTICULAR TREATMENT
PROCESSES CLAIMED AS "ORDINARY" IN THE INDUSTRY INVOLVED.  FOR OUR
PURPOSES, WE NEED NOT REACH THE QUESTION OF WHETHER IN THOSE CASES THE
MINERALS IN PLACE HAD ANY "VALUE" TO BE DEPLETED.  OTHER THAN THE
DECISION HERE UNDER REVIEW, ONLY TWO OF THE COURT OF APPEALS CASES
CITED BY RESPONDENT, BOTH FROM THE SAME CIRCUIT (COMMISSIONER V. IOWA
LIMESTONE CO., 269 F.2D 398; BOOKWALTER V. CENTROPOLIS CRUSHER CO., 272
F.2D 391), ADOPT THE PROFITABILITY TEST, WHICH WE FIND UNACCEPTABLE. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

IN JOINING THE JUDGMENT IN THIS CASE I SHALL REFER ONLY TO ONE MATTER
WHICH, AMONG THE VOLUMINOUS DATA PRESENTED BY THE PARTIES, IS FOR ME BY
FAR THE MOST TELLING IN FAVOR OF THE GOVERNMENT'S POSITION. 

TREASURY REGULATION 77, PROMULGATED IN 1933 UNDER THE REVENUE ACT OF
1932 (47 STAT. 169), DEFINED THE BASIC TERM "GROSS INCOME FROM THE
PROPERTY" CONTAINED IN SEC. 114(B)(4) OF THE 1932 ACT AND CARRIED
FORWARD IN ITS SUCCESSORS.  ART. 221(G).  IT CONCEDEDLY SUPPORTS, BY
ITS EXPRESS TERMS (SEE ANTE, P. 83), THE POSITION OF THE GOVERNMENT IN
THE PRESENT CASE.  IN MY OPINION THE REGULATION WAS UNDOUBTEDLY A VALID
EXERCISE OF THE COMMISSIONER'S POWER TO CONSTRUE A GENERALLY WORDED
STATUTE.  SEE PRELIMINARY REPORT ON DEPLETION, STAFF REPORTS TO THE
JOINT COMMITTEE ON INTERNAL REVENUE TAXATION (1930), P. 68 (SHEPHERD
REPORT); HELVERING V. WILSHIRE OIL CO., 308 U.S. 90, 102-103.  THE
REVENUE ACT OF 1943 (58 STAT. 21, 45), WHICH ADDED TO THE 1939 CODE THE
PROVISIONS GOVERNING THIS CASE, REPRESENTED ONLY A LIMITED DEPARTURE
FROM THE 1933 REGULATION, OR FROM THE ADMINISTRATIVE ACTION TAKEN UNDER
IT, PRINCIPALLY IN THE AREA OF EXTRACTIVE PROCESSES APPLIED TO MINERALS
NOT CUSTOMARILY SOLD IN THE FORM OF A CRUDE PRODUCT, AND DID NOT
BASICALLY AFFECT THE MEANING OF THE TERM "GROSS INCOME FROM THE
PROPERTY."  SEE, E.G., REVENUE ACT OF 1943, HEARINGS BEFORE THE SENATE
COMMITTEE ON FINANCE, 78TH CONG., 1ST SESS., ON H.R. 3687, PP. 527-529;
S. REP. NO. 627, 78TH CONG., 1ST SESS., PP. 23-24; REVENUE REVISION OF
1942, HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 77TH
CONG., 2D SESS., P. 1202; COMPARE ID., AT 1199; SILVER, HEARINGS BEFORE
THE SENATE SPECIAL COMMITTEE ON THE INVESTIGATION OF SILVER, 77TH
CONG., 2D SESS., PURSUANT TO S. RES. 187 (74TH CONG.), PP. 761-764. 
RESPONDENT'S EFFORTS TO IMPUGN THE FORCE OF THAT REGULATION, SEE
SHEPHERD REPORT, SUPRA, AT 70, 71; REVENUE REVISIONS, 1947-1948,
HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 80TH CONG., 1ST
SESS., P. 3283; MINERAL TREATMENT PROCESSES FOR PERCENTAGE DEPLETION
PURPOSES, HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 86TH
CONG., 1ST SESS., PP. 258, 264, SEEM TO ME QUITE UNPERSUASIVE. 

THIS HISTORY, IN MY VIEW, PROVIDES AN AUTHORITATIVE AND CONTROLLING
GLOSS UPON THE TERM "COMMERCIALLY MARKETABLE MINERAL PRODUCT OR
PRODUCTS" IN THE STATUTORY DEFINITION OF "MINING," WHICH IN TURN
CONSTITUTES THE "PROPERTY" WITH WHICH THE STATUTE DEALS.  SEE HELVERING
V. WILSHIRE OIL CO., SUPRA.  IT RESULTS, ON THIS RECORD, IN LIMITING
RESPONDENT'S BASIS FOR DEPLETION TO ITS CONSTRUCTIVE INCOME FROM RAW
FIRE CLAY AND SHALE. 
..END :



















MASSEY MOTORS, INC. V. UNITED STATES 364 U.S. 92 


NO. 141.  ARGUED MARCH 30, 1960 - DECIDED JUNE 27, 1960* - 264 F.2D 552,
AFFIRMED - 264 F.2D 502, REVERSED. 

*TOGETHER WITH NO. 143, COMMISSIONER OF INTERNAL REVENUE V. EVANS ET
UX., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT, ARGUED MARCH 29, 1960. 


THE INTERNAL REVENUE CODE OF 1939, SEC. 23(1), PERMITTED THE DEDUCTION
FOR INCOME TAX PURPOSES OF A "REASONABLE ALLOWANCE FOR THE EXHAUSTION,
WEAR AND TEAR  ...  OF PROPERTY USED IN THE TRADE OR BUSINESS."  THE
APPLICABLE TREASURY REGULATIONS 111, SEC. 29.23(1)-1, DEFINED SUCH
ALLOWANCE TO BE "THAT AMOUNT WHICH SHOULD BE SET ASIDE FOR THE TAXABLE
YEAR IN ACCORDANCE WITH A REASONABLY CONSISTENT PLAN  ...  WHEREBY THE
AGGREGATE OF THE AMOUNTS SO SET ASIDE, PLUS THE SALVAGE VALUE, WILL, AT
THE END OF THE USEFUL LIFE OF THE DEPRECIABLE PROPERTY, EQUAL THE COST
...  OF THE PROPERTY."  HELD:  AS APPLIED TO AUTOMOBILES LEASED BY THE
OWNER-TAXPAYERS TO OTHERS OR (IN THE CASE OF DEALERS) USED BY THEM OR
THEIR EMPLOYEES IN THEIR BUSINESS, AND LATER SOLD AS SECOND-HAND CARS
(NOT JUNK), THE DEPRECIATION ALLOWANCE IS TO BE CALCULATED ON A BASE OF
THE COST OF THE CARS TO THE TAXPAYERS LESS THEIR RESALE VALUE AT THE
ESTIMATED TIME OF SALE, SPREAD OVER THE ESTIMATED TIME THEY ACTUALLY
WILL BE EMPLOYED BY THE TAXPAYERS IN THEIR BUSINESS.  PP. 93-107. 

(A)  CONGRESS INTENDED THAT, UNDER THE ALLOWANCE FOR DEPRECIATION,
THE TAXPAYER SHOULD RECOVER ONLY THE COST OF THE ASSET LESS ITS
ESTIMATED SALVAGE, RESALE OR SECOND-HAND VALUE.  P. 107. 

(B)  FOR THE PURPOSE OF THE DEPRECIATION ALLOWANCE, THE USEFUL LIFE
OF THE ASSET MUST BE RELATED TO THE PERIOD FOR WHICH IT MAY REASONABLY
BE EXPECTED TO BE EMPLOYED IN THE TAXPAYER'S BUSINESS.  P. 107. 

MASSEY MOTORS, INC., V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE CONSOLIDATED CASES INVOLVE THE DEPRECIATION ALLOWANCE FOR
AUTOMOBILES USED IN RENTAL AND ALLIED SERVICE, AS CLAIMED UNDER SEC.
23(1) OF THE INTERNAL REVENUE CODE OF 1939, WHICH PERMITS THE DEDUCTION
FOR INCOME TAX PURPOSES OF A "REASONABLE ALLOWANCE FOR THE EXHAUSTION,
WEAR AND TEAR  ... OF PROPERTY USED IN THE TRADE OR BUSINESS."  THE
APPLICABLE TREASURY REGULATIONS 111, SEC. 29.23(1)-1, DEFINES SUCH
ALLOWANCE TO BE "THAT AMOUNT WHICH SHOULD BE SET ASIDE FOR THE TAXABLE
YEAR IN ACCORDANCE WITH A REASONABLY CONSISTENT PLAN  ...  WHEREBY THE
AGGREGATE OF THE AMOUNTS TO SET ASIDE, PLUS THE SALVAGE VALUE, WILL, AT
THE END OF THE USEFUL LIFE OF THE DEPRECIABLE PROPERTY, EQUAL THE COST
OR OTHER BASIS OF THE PROPERTY."  THE COURTS OF APPEALS HAVE DIVIDED ON
THE METHOD OF DEPRECIATION WHICH IS PERMISSIBLE IN RELATION TO SUCH
ASSETS, AND WE THEREFORE GRANTED CERTIORARI TO RESOLVE THIS CONFLICT. 
361 U.S. 810, 812.  WE HAVE CONCLUDED THAT THE REASONABLE ALLOWANCE FOR
DEPRECIATION OF THE PROPERTY IN QUESTION USED IN THE TAXPAYER'S
BUSINESS IS TO BE CALCULATED OVER THE ESTIMATED USEFUL LIFE OF THE
ASSET WHILE ACTUALLY EMPLOYED BY THE TAXPAYER, APPLYING A DEPRECIATION
BASE OF THE COST OF THE PROPERTY TO THE TAXPAYER LESS ITS RESALE VALUE
AT THE ESTIMATED TIME OF DISPOSAL. 

IN NO. 143, COMMISSIONER V. R.H. AND J.M. EVANS, THE TAXPAYERS ARE
HUSBAND AND WIFE.  IN 1950 AND 1951, THE HUSBAND, ROBLEY EVANS, WAS
ENGAGED IN THE BUSINESS OF LEASING NEW AUTOMOBILES TO EVANS U-DRIVE,
INC., AT THE RATE OF $45 PER CAR PER MONTH.  U-DRIVE IN TURN LEASED
FROM 30% TO 40% OF THE CARS TO ITS CUSTOMERS FOR LONG TERMS RANGING
FROM 18 TO 36 MONTHS, WHILE THE REMAINDER WERE RENTED TO THE PUBLIC ON
A CALL BASIS FOR SHORTER PERIODS.  ROBLEY EVANS NORMALLY KEPT IN STOCK
A SUPPLY OF NEW CARS WITH WHICH TO SERVICE U-DRIVE AND WHICH HE
PURCHASED AT FACTORY PRICE FROM LOCAL AUTOMOBILE DEALERS.  THE LATEST
MODEL CARS WERE REQUIRED BECAUSE OF THE DEMANDS OF THE RENTAL BUSINESS
FOR A FLEET OF MODERN AUTOMOBILES. 

WHEN THE U-DRIVE SERVICE HAD AN OVERSUPPLY OF CARS THAT WERE USED ON
SHORT-TERM RENTAL, IT WOULD RETURN THEM TO THE TAXPAYER AND HE WOULD
SELL THEM, DISPOSING OF THE OLDEST AND LEAST DESIRABLE ONES FIRST. 
NORMALLY THE ONES SO DISPOSED OF HAD BEEN USED ABOUT 15 MONTHS AND HAD
BEEN DRIVEN AN AVERAGE OF 15,000 TO 20,000 MILES.  THEY WERE ORDINARILY
IN FIRST-CLASS CONDITION.  IT WAS LIKEWISE CUSTOMARY FOR THE TAXPAYER
TO SELL THE LONG-TERM RENTAL CARS AT THE TERMINATION OF THEIR LEASES,
ORDINARILY AFTER ABOUT 50,000 MILES OF USE.  THEY ALSO WERE USUALLY IN
GOOD CONDITION.  THE TAXPAYER COULD HAVE USED THE CARS FOR A LONGER
PERIOD, BUT CUSTOMER DEMAND FOR THE LATEST MODEL CARS RENDERED THE
OLDER STYLES OF LITTLE VALUE TO THE RENTAL BUSINESS.  BECAUSE OF THIS,
TAXPAYER FOUND IT MORE PROFITABLE TO SELL THE OLDER CARS TO USED CAR
DEALERS, JOBBERS OR BROKERS AT CURRENT WHOLESALE PRICES.  TAXPAYER SOLD
140 SUCH CARS IN 1950 AND 147 IN 1951.  ON ALL CARS LEASED TO U-DRIVE,
TAXPAYER CLAIMED ON HIS TAX RETURNS DEPRECIATION CALCULATED ON THE
BASIS OF AN ESTIMATED USEFUL LIFE OF FOUR YEARS WITH NO RESIDUAL
SALVAGE VALUE.  THE RETURN FOR 1950, FOR EXAMPLE, INDICATED THAT EACH
CAR'S COST TO TAXPAYER WAS AROUND $1,650; AFTER SOME 15 MONTHS' USE HE
SOLD IT FOR $1,380; HE CHARGED DEPRECIATION OF $515 BASED ON A USEFUL
LIFE OF FOUR YEARS, WITHOUT SALVAGE VALUE, WHICH LEFT HIM A NET GAIN OF
$245, ON WHICH HE CALCULATED A CAPITAL GAINS TAX.  IN 1951 THE NET GAIN
BASED ON THE SAME METHOD OF CALCULATION WAS APPROXIMATELY $350 PER CAR,
ON WHICH CAPITAL GAINS WERE COMPUTED.   THE COMMISSIONER DENIED THE
DEPRECIATION CLAIMS, HOWEVER, ON THE THEORY THAT USEFUL LIFE WAS NOT
THE TOTAL ECONOMIC LIFE OF THE AUTOMOBILE (I.E., THE FOUR YEARS
CLAIMED), BUT ONLY THE PERIOD IT WAS ACTUALLY USED BY THE TAXPAYER IN
HIS BUSINESS; AND THAT SALVAGE VALUE WAS NOT JUNK VALUE BUT THE RESALE
VALUE AT THE TIME OF DISPOSAL.  ON THIS BASIS HE ESTIMATED THE USEFUL
LIFE OF EACH CAR AT 17 MONTHS AND SALVAGE VALUE AT $1,325; DEPRECIATION
WAS PERMITTED ONLY ON THE DIFFERENCE BETWEEN THIS VALUE AND THE
ORIGINAL COST.  THE TAX COURT ACCEPTED THE COMMISSIONER'S THEORY BUT
MADE SEPARATE FINDINGS.  THE COURT OF APPEALS REVERSED, HOLDING THAT
USEFUL LIFE WAS THE TOTAL PHYSICAL OR ECONOMIC LIFE OF THE AUTOMOBILES
NOT THE PERIOD WHILE USEFUL IN THE TAXPAYER'S BUSINESS.  264 F.2D
502. 

IN NO. 141, MASSEY MOTORS, INC., V. UNITED STATES, THE TAXPAYER, A
FRANCHISED CHRYSLER DEALER, WITHDREW FROM SHIPMENTS TO IT A CERTAIN
NUMBER OF NEW CARS WHICH WERE ASSIGNED TO COMPANY OFFICIALS AND
EMPLOYEES FOR USE IN COMPANY BUSINESS.  OTHER NEW CARS FROM THESE
SHIPMENTS WERE RENTED TO AN UNAFFILIATED FINANCE COMPANY AT A
SUBSTANTIAL PROFIT. 

THE CARS ASSIGNED TO COMPANY PERSONNEL WERE UNIFORMLY SOLD AT THE END
OF 8,000 TO 10,000 MILES' USE OR UPON RECEIPT OF NEW MODELS, WHICHEVER
WAS EARLIER.  THE RENTAL CARS WERE SOLD AFTER 40,000 MILES OR UPON
RECEIPT OF NEW MODELS.  FOR THE MOST PART, CARS ASSIGNED TO COMPANY
PERSONNEL AND THE RENTAL CARS SOLD FOR MORE THAN THEY COST THE
TAXPAYER.  DURING 1950 AND 1951, THE TAX YEARS INVOLVED HERE, THE
PROFIT RESULTING FROM SALE OF COMPANY PERSONNEL CARS WAS $11,272.80 AND
FROM RENTAL CARS, $525.84.  THE TAXPAYER CALCULATED DEPRECIATION ON THE
SAME THEORY AS DID TAXPAYER EVANS, COMPUTING THE GAINS ON THE SALES AT
CAPITAL GAIN RATES WITH A BASIS OF COST LESS DEPRECIATION.  THE
COMMISSIONER DISALLOWED THE DEPRECIATION CLAIMED.  AFTER PAYING THE TAX
AND BEING DENIED A REFUND, THE TAXPAYER FILED THIS SUIT.  THE TRIAL
COURT DECIDED AGAINST THE COMMISSIONER.  THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT, HOWEVER, REVERSED, SUSTAINING THE COMMISSIONER'S VIEWS
AS TO THE MEANING OF USEFUL LIFE AND SALVAGE VALUE.  264 F.2D 552. 

FIRST, IT MAY BE WELL TO ORIENT OURSELVES.  THE COMMISSIONER ADMITS
THAT THE AUTOMOBILES INVOLVED HERE ARE, FOR TAX PURPOSES, DEPRECIABLE
ASSETS RATHER THAN ORDINARY STOCK IN TRADE.  SUCH ASSETS, EMPLOYED FROM
DAY TO DAY IN BUSINESS, GENERALLY DECREASE IN UTILITY AND VALUE AS THEY
ARE USED.  IT WAS THE DESIGN OF THE CONGRESS TO PERMIT THE TAXPAYER TO
RECOVER, TAX FREE, THE TOTAL COST TO HIM OF SUCH CAPITAL ASSETS; HENCE
IT RECOGNIZED THAT THIS DECREASE IN VALUE - DEPRECIATION - WAS A
LEGITIMATE TAX DEDUCTION AS BUSINESS EXPENSE.  IT WAS THE PURPOSE OF
SEC. 23(1) AND THE REGULATIONS TO MAKE A MEANINGFUL ALLOCATION OF THIS
COST TO THE TAX PERIODS BENEFITED BY THE USE OF THE ASSET.  IN
PRACTICAL LIFE, HOWEVER, BUSINESS CONCERNS DO NOT USUALLY KNOW HOW LONG
AN ASSET WILL BE OF PROFITABLE USE TO THEM OR HOW LONG IT MAY BE
UTILIZED UNTIL NO LONGER CAPABLE OF FUNCTIONING.  BUT, FOR THE MOST
PART, SUCH ASSETS ARE USED FOR THEIR ENTIRE ECONOMIC LIFE, AND THE
DEPRECIATION BASE IN SUCH CASES HAS LONG BEEN RECOGNIZED AS THE NUMBER
OF YEARS THE ASSET IS EXPECTED TO FUNCTION PROFITABLY IN USE.  THE
ASSET BEING OF NO FURTHER USE AT THE END OF SUCH PERIOD, ITS SALVAGE
VALUE, IF ANYTHING, IS ONLY AS SCRAP. 

SOME ASSETS, HOWEVER, ARE NOT ACQUIRED WITH INTENT TO BE EMPLOYED IN
THE BUSINESS FOR THEIR FULL ECONOMIC LIFE.  IT IS THIS TYPE OF ASSET,
WHERE THE EXPERIENCE OF THE TAXPAYERS CLEARLY INDICATES A UTILIZATION
OF THE ASSET FOR A SUBSTANTIALLY SHORTER PERIOD THAN ITS FULL ECONOMIC
LIFE, THAT WE ARE CONCERNED WITH IN THESE CASES.  ADMITTEDLY, THE
AUTOMOBILES ARE NOT RETAINED BY THE TAXPAYERS FOR THEIR FULL ECONOMIC
LIFE AND, CONCEDEDLY, THEY DO HAVE SUBSTANTIAL SALVAGE, RESALE OR
SECOND-HAND VALUE.  MOREOVER, THE APPLICATION OF THE FULL-ECONOMIC-LIFE
FORMULA TO TAXPAYERS' BUSINESSES HERE RESULTS IN THE RECEIPT OF
SUBSTANTIAL "PROFITS" FROM THE RESALE OR "SALVAGE" OF THE AUTOMOBILES,
WHICH CONTRADICTS THE USUAL APPLICATION OF THE FULL-ECONOMIC-LIFE
CONCEPT.  THERE, THE SALVAGE VALUE, IF ANYTHING, IS ORDINARILY
NOMINAL.  FURTHERMORE, THE "PROFITS" OF THE TAXPAYERS HERE ARE CAPITAL
GAINS AND INCUR NO MORE THAN A 25% TAX RATE.  THE DEPRECIATION,
HOWEVER, IS DEDUCTED FROM ORDINARY INCOME.  BY SO TRANSLATING THE
STATUTE AND THE REGULATIONS, THE TAXPAYERS ARE ABLE, THROUGH THE
DEDUCTION OF THIS DEPRECIATION FROM ORDINARY INCOME, TO CONVERT THE
INFLATED AMOUNTS FROM INCOME TAXABLE AT ORDINARY RATES TO THAT TAXABLE
AT THE SUBSTANTIALLY LOWER CAPITAL GAINS RATES.  THIS, WE BELIEVE, WAS
NOT IN THE DESIGN OF CONGRESS. 

IT APPEARS THAT THE GOVERNING STATUTE HAS AT NO TIME DEFINED THE
TERMS "USEFUL LIFE" AND "SALVAGE VALUE."  IN THE ORIGINAL ACT, CONGRESS
DID PROVIDE THAT A REASONABLE ALLOWANCE WOULD BE PERMITTED FOR "WEAR
AND TEAR OF PROPERTY ARISING OUT OF ITS USE OR EMPLOYMENT IN THE
BUSINESS."  ACT OF OCT. 3, 1913, 38 STAT. 167.  THIS LANGUAGE,
PARTICULARLY THAT EMPHASIZED ABOVE, MAY BE FAIRLY CONSTRUED TO MEAN
THAT THE WEAR AND TEAR TO THE PROPERTY MUST ARISE FROM ITS USE IN THE
BUSINESS OF THE TAXPAYER - I.E., USEFUL LIFE IS MEASURED BY THE USE IN
A TAXPAYER'S BUSINESS, NOT BY THE FULL ABSTRACT ECONOMIC LIFE OF THE
ASSET IN ANY BUSINESS.  IN 1918, THE LANGUAGE OF SEC. 23(1) WAS AMENDED
SO THAT THE WORDS EMPHASIZED ABOVE WOULD READ "USED IN THE TRADE OR
BUSINESS," SEC. 214(A)(8), REVENUE ACT OF 1918, 40 STAT. 1067, AND THE
ART. 161, WAS PROMULGATED IN 1919 AND CONTINUED IN SUBSTANTIALLY THE
SAME FORM UNTIL 1941.  IT PROVIDED: 

"THE PROPER ALLOWANCE FOR SUCH DEPRECIATION OF ANY PROPERTY USED IN
THE TRADE OR BUSINESS IS THAT AMOUNT WHICH SHOULD BE SET ASIDE FOR THE
TAXABLE YEAR IN ACCORDANCE WITH A CONSISTENT PLAN BY WHICH THE
AGGREGATE OF SUCH AMOUNTS FOR THE USEFUL LIFE OF THE PROPERTY IN THE
BUSINESS WILL SUFFICE, WITH THE SALVAGE VALUE, AT THE END OF SUCH
USEFUL LIFE, TO PROVIDE IN PLACE OF THE PROPERTY ITS COST  ...  ."

IT, TOO, MAY BE CONSTRUED TO PROVIDE THAT THE USE AND EMPLOYMENT OF
THE PROPERTY IN THE BUSINESS RELATES TO THE TRADE OR BUSINESS OF THE
TAXPAYER - NOT, AS IS CONTENDED, TO THE TYPE OR CLASS OF ASSETS SUBJECT
TO DEPRECIATION.  THE LATTER CONTENTION APPEARS TO GIVE A STRAINED
MEANING TO THE PHRASE.  THIS MIGHT BE PARTICULARLY TRUE OF THE LANGUAGE
IN TREASURY REGULATIONS 103, PROMULGATED JANUARY 29, 1940, UNDER THE
INTERNAL REVENUE CODE OF 1939.  ITS SEC. 19.23(1)-1 AND SEC. 19.23(1)
(2) (FN1) COMPLEMENT EACH OTHER AND SEEM TO ADVISE THE TAXPAYER HOW TO
COMPUTE DEPRECIATION AND WHAT PROPERTY IS SUBJECT TO IT.  THE FIRST
TO BE COMPUTED SO THAT DEPRECIATION "PLUS THE SALVAGE VALUE, WILL, AT
THE END OF THE USEFUL LIFE OF THE PROPERTY IN THE BUSINESS, EQUAL THE
COST  ...  ."  THE SECOND SECTION SPECIFICALLY DEFINES THE TYPE OF
ASSETS TO WHICH THE DEPRECIATION ALLOWANCE IS APPLICABLE.  IT MAY BE
SAID THAT THE TAXPAYERS' ARGUMENTS AS TO THIS REGULATION FAIL
COMPLETELY, SINCE IT NOT ONLY SPECIFICALLY PROVIDES THAT "USEFUL LIFE"
RELATED TO PROPERTY WHILE USED "IN THE BUSINESS," BUT ALSO DETAILS THE
TYPE OR CLASS OF PROPERTY INCLUDED WITHIN THE ALLOWANCE.  IT APPEARS TO
CUT FROM UNDER THE TAXPAYERS THE ARGUMENT THAT THE TERM "PROPERTY USED
IN THE TRADE OR BUSINESS" RELATES TO THE TYPE OR CLASS OF ASSETS THAT
ARE INCLUDED WITHIN THE ALLOWANCE.  IT WOULD BE STRANGE TO SAY THAT
BOTH OF THESE SECTIONS OF REGULATIONS 103 DEFINED THE SAME THING, VIZ.,
THE TYPE OR CLASS OF ASSETS SUBJECT TO DEPRECIATION.  ON THE OTHER
HAND, THE TAXPAYERS POINT OUT THAT REGULATIONS 111, ISSUED IN 1942,
DELETED THE WORDS "PROPERTY IN THE BUSINESS" FROM SEC. 19.23(1)-1 AND
SUBSTITUTED THE TERM "DEPRECIABLE PROPERTY."  THIS MIGHT, AS TAXPAYERS
CLAIM, ESTABLISH THAT THE PHRASE "PROPERTY USED IN THE TRADE OR
BUSINESS" MERELY REFERRED TO THE TYPE OF PROPERTY INVOLVED.  CERTAINLY
WHEN CONSIDERED IN ISOLATION, THIS APPEARS TO BE TRUE.  BUT THE
"DEPRECIABLE PROPERTY" PHRASE DOES REFER BACK TO THE EARLIER IDENTICAL
LANGUAGE, STILL REMAINING IN THE SECTION, OF "PROPERTY USED IN THE
TRADE OR BUSINESS."  IT DOES APPEAR, HOWEVER, AS THE COURT OF APPEALS
IN NO. 141, MASSEY, HELD, THAT THIS SUBSTITUTION WAS MADE BECAUSE
CONGRESS EXPANDED THE DEPRECIATION ALLOWANCE PROVISION OF SEC. 23(1) TO
INCLUDE PROPERTY HELD FOR THE PRODUCTION OF INCOME.  THE CHANGE IN THE
REGULATIONS ONLY CONFORMED IT TO THIS AMENDMENT OF THE BASIC STATUTE. 

IT IS TRUE, AS TAXPAYERS CONTEND AND AS WE HAVE INDICATED, THAT THE
LANGUAGE OF THE STATUTE AND THE REGULATIONS AS WE HAVE HERETOFORE
TRACED THEM MAY NOT BE PRECISE AND UNAMBIGUOUS AS TO THE TERM "USEFUL
LIFE."  IT MAY BE THAT THE ADMINISTRATIVE PRACTICE WITH REGARD THERETO
MAY NOT BE POINTED TO AS AN EXAMPLE OF CLARITY, AND THAT IN SOME CASES
THE COMMISSIONER HAS ACQUIESCED IN INCONSISTENT HOLDINGS.  BUT FROM THE
PROMULGATION OF THE FIRST REGULATION IN 1919, HE HAS MADE IT CLEAR THAT
SALVAGE HAD SOME VALUE AND THAT IT WAS TO BE CONSIDERED AS SOMETHING
OTHER THAN ZERO IN THE DEPRECIATION EQUATION.  IN FACT MANY OF THE
CASES CITED BY THE PARTIES INVOLVED CONTROVERSIES OVER THE ACTUAL VALUE
OF SALVAGE, NOT AS SCRAP BUT ON RESALE.  (FN2)  THE CONSISTENCY OF THE
COMMISSIONER'S POSITION IN THIS REGARD IS EVIDENCED BY THE FACT THAT
THE DEFINITION OF SALVAGE AS NOW INCORPORATED IN THE REGULATIONS IS
IDENTICAL WITH THAT CLAIMED AT LEAST SINCE 1941.  IN THE LIGHT OF THIS,
IT APPEARS THAT THE STRUGGLE OVER THE TERM "USEFUL LIFE" TAKES ON LESS
PRACTICAL SIGNIFICANCE, FOR, IF SALVAGE IS THE RESALE VALUE AND A
DEDUCTION OF THIS AMOUNT FROM COST IS REQUIRED, THE DOLLAR-WISE
IMPORTANCE TO THE TAXPAYER OF THE BREADTH IN YEARS OF "USEFUL LIFE" IS
DIMINISHED.  IT IS ONLY WHEN HE CAN SUCCESSFULLY CLAIM THAT SALVAGE
MEANS JUNK AND HAS NO VALUE THAT AN INTERPRETATION OF "USEFUL LIFE" AS
THE FUNCTIONAL, ECONOMIC, PHYSICAL LIFE OF THE AUTOMOBILE BRINGS MONEY
TO HIS POCKET.  MOREOVER, IN THE CONSIDERATION OF THE APPROPRIATE
INTERPRETATION OF THE TERM, IT MUST BE ADMITTED THAT THERE IS
ADMINISTRATIVE PRACTICE AND JUDICIAL DECISION IN ITS FAVOR, AS WE SHALL
POINT OUT.  FURTHERMORE, AS WE HAVE SAID, CONGRESS INTENDED BY THE
DEPRECIATION ALLOWANCE NOT TO MAKE TAXPAYERS A PROFIT THEREBY, BUT
MERELY TO PROTECT THEM FROM A LOSS.  THE CONCEPT IS, AS TAXPAYERS SAY,
BUT AN ACCOUNTING ONE AND, WE ADD, SHOULD NOT BE EXCHANGEABLE IN THE
MARKET PLACE.  ACCURACY IN ACCOUNTING REQUIRES THAT CORRECT
TABULATIONS, NOT ARTIFICIAL ONES, BE USED.  CERTAINLY IT IS NEITHER
ACCURATE NOR CORRECT TO CARRY IN THE DEPRECIATION EQUATION A VALUE OF
NOTHING AS SALVAGE ON THE RESALE OF THE AUTOMOBILES, WHEN THE TAXPAYERS
ACTUALLY RECEIVED SUBSTANTIAL SUMS THEREFOR.  ON BALANCE, THEREFORE, IT
APPEARS CLEAR THAT THE WEIGHT OF BOTH FAIRNESS AND ARGUMENT IS WITH THE
COMMISSIONER. 

OUR CONCLUSION AS TO THIS INTERPRETATION OF THE REGULATIONS IS
BUTTRESSED, WE THINK, BY A PUBLICATION ISSUED BY THE COMMISSIONER IN
1942, THE SAME YEAR AS REGULATIONS 111, AND LONG BEFORE THIS
CONTROVERSY AROSE.  IT IS KNOWN AS BULLETIN "F" AND HAS BEEN REISSUED
AS LATE AS 1955.  WHILE IT DOES NOT HAVE THE AUTHORITY OF A REGULATION,
ITS SIGNIFICANCE IS INDICATED CLEARLY BY THE FACT THAT BOTH THE
TAXPAYERS AND THE COMMISSIONER POINT TO IT AS CONCLUSIVE OF THEIR
RESPECTIVE VIEWS OF THE ADMINISTRATIVE PRACTICE.  LIKEWISE IT IS WIDELY
CITED BY TAX AUTHORITIES, AS WELL AS BY THE COURTS OF APPEALS.  A
CAREFUL EXAMINATION OF THE ENTIRE BULLETIN, HOWEVER, INDICATES THAT IT
CLEARLY SUPPORTS THE ADMINISTRATIVE PRACTICE CLAIMED HERE BY THE
COMMISSIONER.  FOR EXAMPLE, THE TITLE PAGE WARNS THAT "THE ESTIMATED
USEFUL LIVES AND RATES OF DEPRECIATION  ...  ARE BASED ON AVERAGES AND
ARE NOT PRESCRIBED FOR USE IN ANY PARTICULAR CASE."  (FN3)  AGAIN ON
PAGE 2, BULLETIN "F," IN DISCUSSING DEPRECIATION, EMPHASIZES THAT IT IS
BASED ON "THE USEFUL LIFE OF THE PROPERTY IN THE BUSINESS."  WHAT IS
MORE SIGNIFICANT IS THE SIMPLE CLARITY WITH WHICH, ON PAGE 7, IT
DEFINES SALVAGE VALUE TO BE "THE AMOUNT REALIZABLE FROM THE SALE  ...
WHEN PROPERTY HAS BECOME NO LONGER USEFUL IN THE TAXPAYER'S BUSINESS
AND IS DEMOLISHED, DISMANTLED, OR RETIRED FROM SERVICE."  IT EVEN GOES
FURTHER TO SAY THAT SALVAGE "SHOULD SERVE TO REDUCE DEPRECIATION,
EITHER THROUGH A REDUCTION IN THE BASIS ON WHICH DEPRECIATION IS
COMPUTED OR A REDUCTION IN THE RATE." 

MOREOVER, CONGRESS WAS AWARE OF THIS PRIOR PREVAILING ADMINISTRATIVE
PRACTICE AS WELL AS THE CONCEPT OF DEPRECIATION UPON WHICH IT WAS
BASED.  ALTHOUGH THE TAX YEARS INVOLVED HERE ARE 1950 AND 1951, WE
BELIEVE THAT THE ACTION OF CONGRESS IN ADOPTING THE 1954 CODE SHOULD BE
NOTED, SINCE IT SPECIFICALLY RECOGNIZED THE EXISTING DEPRECIATION
EQUATION.  FOR THE FIRST TIME, THE TERM "USEFUL LIFE" WAS INSERTED IN
THE STATUTORY PROVISION.  THE ACCOMPANYING HOUSE REPORT TO THE BILL
STATED: 

"DEPRECIATION ALLOWANCES ARE THE METHOD BY WHICH THE CAPITAL INVESTED
IN AN ASSET IS RECOVERED TAX-FREE OVER THE YEARS IT IS USED IN A
BUSINESS.  THE ANNUAL DEDUCTION IS COMPUTED BY SPREADING THE COST OF
THE PROPERTY OVER ITS ESTIMATED USEFUL LIFE."  H.R.  REP. NO. 1337, 83D
CONG., 2D SESS. 22. 

IT IS ALSO NOTEWORTHY THAT THE REPORT STATES THAT "THE CHANGES MADE
BY YOUR COMMITTEE'S BILL MERELY AFFECT THE TIMING AND NOT THE ULTIMATE
AMOUNT OF DEPRECIATION DEDUCTIONS WITH RESPECT TO A PROPERTY."  ID., AT
25. 

MOREOVER, AS WE HAVE SAID, THERE ARE NUMEROUS CASES IN THE TAX COURT
IN WHICH DEPRECIATION WAS PERMITTED ONLY ON THE USEFUL LIFE OF THE
PROPERTY IN THE TAXPAYER'S BUSINESS.  (FN4)  THE TAXPAYERS POINT TO
OTHERS (FN5) WHICH APPEAR TO BE TO THE CONTRARY.  IN MOST OF THESE,
HOWEVER, THE ISSUE WAS FACTUAL, I.E., THE TIME LAPSE BEFORE THE
PROPERTY WOULD WEAR OUT FROM USE OR, AS WE HAVE SAID, ITS SALVAGE OR
RESALE VALUE.  THEY CANNOT BE SAID TO PROVE CONCLUSIVELY THAT THE
COMMISSIONER WAS FOLLOWING A PHYSICALLY USEFUL-LIFE THEORY; FOR THERE
IS NO AFFIRMATIVE SHOWING OR FINDING AS TO THE LENGTH OF THE PHYSICALLY
USEFUL LIFE.  THE MOST THAT CAN BE SAID IS THAT THE ELEMENT OF
COMPROMISE PROBABLY PLAYED A PREDOMINANT ROLE IN THE RESULT IN EACH
CASE.  MOREOVER, THERE IS NO INDICATION IN ANY OF THESE CASES THAT THE
AMOUNT OF DEPRECIATION WOULD HAVE BEEN CHANGED BY COMPUTING IT ON THE
BASIS OF ITS USEFUL LIFE IN THE BUSINESS.  THE CASES DO NOT SEEM TO
REFLECT CONSIDERED JUDGMENTS AS TO THE PROPER MEANING OF THE TERMS USED
IN THE DEPRECIATION EQUATION AND WE FIND THEM OF LITTLE VALUE AS
PRECEDENTS. 

FINALLY, IT IS THE PRIMARY PURPOSE OF DEPRECIATION ACCOUNTING TO
FURTHER THE INTEGRITY OF PERIODIC INCOME STATEMENTS BY MAKING A
MEANINGFUL ALLOCATION OF THE COST ENTAILED IN THE USE (EXCLUDING
MAINTENANCE EXPENSE) OF THE ASSET TO THE PERIODS TO WHICH IT
CONTRIBUTES.  THIS ACCOUNTING SYSTEM HAS HAD THE APPROVAL OF THIS COURT
SINCE UNITED STATES V. LUDEY, 274 U.S. 295, 301 (1927), WHEN MR.
JUSTICE BRANDEIS SAID, "THE THEORY UNDERLYING THIS ALLOWANCE FOR
DEPRECIATION IS THAT BY USING UP THE PLANT, A GRADUAL SALE IS MADE OF
IT."  THE ANALOGY APPLIES EQUALLY TO AUTOMOBILES.  LIKEWISE IN DETROIT
EDISON CO. V. COMMISSIONER, 319 U.S. 98, 101 (1943), THIS COURT SAID: 

"THE END AND PURPOSE OF IT ALL (DEPRECIATION ACCOUNTING) IS TO
APPROXIMATE AND REFLECT THE FINANCIAL CONSEQUENCES TO THE TAXPAYER OF
THE SUBTLE EFFECTS OF TIME AND USE ON THE VALUE OF HIS CAPITAL ASSETS. 
FOR THIS PURPOSE IT IS SOUND ACCOUNTING PRACTICE ANNUALLY TO ACCRUE
...  AN AMOUNT WHICH AT THE TIME IT IS RETIRED WILL WITH ITS SALVAGE
VALUE REPLACE THE ORIGINAL INVESTMENT THEREIN." 

OBVIOUSLY A MEANINGFUL ANNUAL ACCRUAL REQUIRES AN ACCURATE ESTIMATION
OF HOW MUCH THE DEPRECIATION WILL TOTAL.  THE FAILURE TO TAKE INTO
ACCOUNT A KNOWN ESTIMATE OF SALVAGE VALUE PREVENTS THIS, SINCE IT WILL
RESULT IN AN UNDERSTATEMENT OF INCOME DURING THE YEARS THE ASSET IS
EMPLOYED AND AN OVERSTATEMENT IN THE YEAR OF ITS DISPOSITION.  THE
PRACTICE HAS THEREFORE GROWN UP OF SUBTRACTING SALVAGE VALUE FROM THE
PURCHASE PRICE TO DETERMINE THE DEPRECIATION BASE.  (FN6)  ON THE OTHER
HAND, TO CALCULATE ARBITRARILY THE EXPECTED TOTAL EXPENSE ENTAILED BY
THE ASSET ON THE FALSE ASSUMPTION THAT THE ASSET WILL BE HELD UNTIL IT
HAS NO VALUE IS TO INVITE AN ERRONEOUS DEPRECIATION BASE AND
DEPRECIATION RATE, WHICH MAY RESULT IN EITHER AN OVER- OR AN UNDER
DEPRECIATION DURING THE PERIOD OF USE.  IF THE DEPRECIATION RATE AND
BASE TURN OUT TO REFLECT THE ACTUAL COST OF EMPLOYING THE ASSET, IT
WILL BE BY ACCIDENT ONLY.  THE LIKELIHOOD OF PRESENTING AN INACCURATE
PICTURE OF YEARLY INCOME FROM OPERATIONS IS PARTICULARLY OFFENSIVE
WHERE, AS HERE, THE TAXPAYERS STOUTLY MAINTAIN THAT THEY ARE ONLY IN
THE BUSINESS OF RENTING AND LEASING AUTOMOBILES, NOT OF SELLING THEM. 
THE ALTERNATIVE IS TO ESTIMATE THE PERIOD THE ASSET WILL BE HELD IN THE
BUSINESS AND THE PRICE THAT WILL BE RECEIVED FOR IT ON RETIREMENT.  OF
COURSE, THERE IS A RISK OF ERROR IN SUCH PROJECTIONS, BUT PREDICTION IS
THE VERY ESSENCE OF DEPRECIATION ACCOUNTING.  BESIDES, THE POSSIBILITY
OF ERROR IS SIGNIFICANTLY LESS WHERE PROBABILITIES RATHER THAN
ACCIDENTS ARE RELIED UPON TO PRODUCE WHAT IS HOPED TO BE AN ACCURATE
ESTIMATION OF THE EXPENSE INVOLVED IN UTILIZING THE ASSET.  MOREOVER,
UNDER A SYSTEM WHERE THE REAL SALVAGE PRICE AND ACTUAL DURATION OF USE
ARE RELEVANT, TO FURTHER INSURE A CORRECT DEPRECIATION BASE IN THE
YEARS AFTER A MISTAKE HAS BEEN DISCOVERED, ADJUSTMENTS MAY BE MADE WHEN
IT APPEARS THAT A MISCALCULATION HAS BEEN MADE. 

ACCOUNTING FOR FINANCIAL MANAGEMENT AND ACCOUNTING FOR FEDERAL INCOME
TAX PURPOSES BOTH FOCUS ON THE NEED FOR AN ACCURATE DETERMINATION OF
THE NET INCOME FROM OPERATIONS OF A GIVEN BUSINESS FOR A FISCAL
PERIOD.  THE APPROACH TAKEN BY THE COMMISSIONER COMPUTES DEPRECIATION
EXPENSE IN A MANNER WHICH IS FAR MORE LIKELY TO REFLECT CORRECTLY THE
ACTUAL COST OVER THE YEARS IN WHICH THE ASSET IS EMPLOYED IN THE
BUSINESS.  (FN7) 

WE THEREFORE CONCLUDE THAT THE CONGRESS INTENDED THAT THE TAXPAYER
SHOULD, UNDER THE ALLOWANCE FOR DEPRECIATION, RECOVER ONLY THE COST OF
THE ASSET LESS THE ESTIMATED SALVAGE, RESALE OR SECOND-HAND VALUE. 
THIS REQUIRES THAT THE USEFUL LIFE OF THE ASSET BE RELATED TO THE
PERIOD FOR WHICH IT MAY REASONABLY BE EXPECTED TO BE EMPLOYED IN THE
TAXPAYER'S BUSINESS.  LIKEWISE SALVAGE VALUE MUST INCLUDE ESTIMATED
RESALE OR SECOND-HAND VALUE.  IT FOLLOWS THAT NO. 141, MASSEY MOTORS,
INC., V. UNITED STATES, MUST BE AFFIRMED, AND NO. 143, COMMISSIONER V.
R.H. AND J.M. EVANS, REVERSED.  IT IS SO ORDERED. 

FN1  "SEC.  19.23(1)-1.  DEPRECIATION.  - A REASONABLE ALLOWANCE FOR
THE EXHAUSTION, WEAR AND TEAR, AND OBSOLESCENCE OF PROPERTY USED IN THE
TRADE OR BUSINESS MAY BE DEDUCTED FROM GROSS INCOME.  FOR CONVENIENCE
SUCH AN ALLOWANCE WILL USUALLY BE REFERRED TO AS DEPRECIATION,
EXCLUDING FROM THE TERM ANY IDEA OF A MERE REDUCTION IN MARKET VALUE
NOT RESULTING FROM EXHAUSTION, WEAR AND TEAR, OR OBSOLESCENCE.  THE
PROPER ALLOWANCE FOR SUCH DEPRECIATION OF ANY PROPERTY USED IN THE
TRADE OR BUSINESS IS THAT AMOUNT WHICH SHOULD BE SET ASIDE FOR THE
TAXABLE YEAR IN ACCORDANCE WITH A REASONABLY CONSISTENT PLAN (NOT
NECESSARILY AT A UNIFORM RATE), WHEREBY THE AGGREGATE OF THE AMOUNTS SO
SET ASIDE, PLUE THE SALVAGE VALUE, WILL, AT THE END OF THE USEFUL LIFE
OF THE PROPERTY IN THE BUSINESS, EQUAL THE COST OR OTHER BASIS OF THE
PROPERTY DETERMINED IN ACCORDANCE WITH SECTION 113 ...  ." 

"SEC. 19.23(1)-2.  DEPRECIABLE PROPERTY.  - THE NECESSITY FOR A
DEPRECIATION ALLOWANCE ARISES FROM THE FACT THAT CERTAIN PROPERTY USED
IN THE BUSINESS GRADUALLY APPROACHES A POINT WHERE ITS USEFULNESS IS
EXHAUSTED.  THE ALLOWANCE SHOULD BE CONFINED TO PROPERTY OF THIS
NATURE.  IN THE CASE OF TANGIBLE PROPERTY, IT APPLIED TO THAT WHICH IS
SUBJECT TO WEAR AND TEAR, TO DECAY OR DECLINE FROM NATURAL CAUSES, TO
EXHAUSTION, AND TO OBSOLESCENCE DUE TO THE NORMAL PROGRESS OF THE ART,
AS WHERE MACHINERY OR OTHER PROPERTY MUST BE REPLACED BY A NEW
INVENTION, OR DUE TO THE INADEQUACY OF THE PROPERTY TO THE GROWING
NEEDS OF THE BUSINESS.  IT DOES NOT APPLY TO INVENTORIES OR TO STOCK IN
TRADE, OR TO LAND APART FROM THE IMPROVEMENTS OR PHYSICAL DEVELOPMENTS
ADDED TO IT.  IT DOES NOT APPLY TO BODIES OF MINERALS WHICH THROUGH THE
PROCESS OF REMOVAL SUFFER DEPLETION, OTHER PROVISIONS FOR THIS BEING
MADE IN THE INTERNAL REVENUE CODE.  (SEE SECTIONS 23(M) AND 114.) 
PROPERTY KEPT IN REPAIR MAY, NEVERTHELESS, BE THE SUBJECT OF A
DEPRECIATION ALLOWANCE.  (SEE SECTION 19.23(A)-4.)  THE DEDUCTION OF AN
ALLOWANCE FOR DEPRECIATION IS LIMITED TO PROPERTY USED IN THE
TAXPAYER'S TRADE OR BUSINESS.  NO SUCH ALLOWANCE MAY BE MADE IN RESPECT
OF AUTOMOBILES OR OTHER VEHICLES USED SOLELY FOR PLEASURE, A BUILDING
USED BY THE TAXPAYER SOLELY AS HIS RESIDENCE, OR IN RESPECT OF
FURNITURE OR FURNISHINGS THEREIN, PERSONAL EFFECTS, OR CLOTHING; BUT
PROPERTIES AND COSTUMES USED EXCLUSIVELY IN A BUSINESS, SUCH AS A
THEATRICAL BUSINESS, MAY BE THE SUBJECT OF A DEPRECIATION ALLOWANCE." 

FN2  E.G., DAVIDSON V. COMMISSIONER, 12 CCH T.C. MEM. 1080 (1953);
W.H. NORRIS LUMBER CO. V. COMMISSIONER, 7 CCH T.C. MEM. 728 (1948);
BOLTA CO. V. COMMISSIONER, 4 CCH T.C.  MEM. 1067 (1945); WIER LONG LEAF
LUMBER CO. V. COMMISSIONER, 9 T.C. 990 (1947), AFFIRMED IN PART AND
REVERSED IN PART, 173 F.2D 549 (1949). 

FN3  THE BULLETIN SETS OUT A SCHEDULE OF THE USEFUL LIFE OF
AUTOMOBILES, LISTING PASSENGER CARS AT FIVE YEARS AND THOSE USED BY
SALESMEN AT THREE YEARS. 

FN4  SEE NOTE 2, SUPRA. 

FN5  E.G., WEST VIRGINIA & PENNSYLVANIA COAL & COKE CO. V.
COMMISSIONER, 1 B.T.A. 790 (1925); JAMES V. COMMISSIONER, 2 B.T.A. 1071
(1925); MERKLE BROOM CO. V. COMMISSIONER, 3 B.T.A. 1084 (1926); KURTZ
V. COMMISSIONER, 8 B.T.A. 679 (1927); WHITMAN-DOUGLAS CO. V.
COMMISSIONER, 8 B.T.A. 694 (1927); SANFORD COTTON MILLS V.
COMMISSIONER, 14 B.T.A. 1210 (1929).  GENERAL SECURITIES CO. V.
COMMISSIONER, 1942 P-H BTA-TC MEM. DEC. PARA. 42,219, SEEMS TO BE THE
ONLY CASE OF THE GROUP THAT IS DIRECTLY CONTRARY TO THE PRESENT
POSITION OF THE COMMISSIONER, AND THERE THE END RESULT MONEY-WISE WOULD
SEEM TO BE THE SAME UNDER EITHER THEORY.  HENCE IT ONLY EMPHASIZES THAT
ISOLATED INSTANCES OF INCONSISTENCY CAN BE FOUND IN MOST AREAS WHERE
THE VOLUME OF CASES IS AS LARGE AS IT IS HERE. 

FN6  THIS INDUSTRY PRACTICE IS EMPHASIZED BY THE AMICUS CURIAE BRIEF
OF THE AMERICAN AUTOMOBILE LEASING ASSOCIATION IN HILLARE V.
COMMISSIONER, 31 T.C. 961, NOW PENDING IN THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT.  COMPRISING "ABOUT 65 PER CENT OF THE LONG-TERM LEASING
INDUSTRY IN MOTOR VEHICLES IN THE COUNTRY" THE ASSOCIATION TAKES THE
POSITION THAT THE DEPRECIATION ALLOWANCE "IS DESIGNED TO RETURN TO THE
TAXPAYER, TAX-FREE, THE COST OF HIS CAPITAL ASSET OVER THE PERIOD
DURING WHICH IT IS USEFUL TO THE TAXPAYER IN HIS BUSINESS."  A COPY OF
THE BRIEF IS ON FILE IN THIS CASE. 

FN7  SEVERAL WRITERS IN THE ACCOUNTING FIELD HAVE ADDRESSED
THEMSELVES, WITHOUT REFERENCE TO THE INCOME TAX LAWS, TO THE PROBLEM OF
GIVING CONTENT TO THE TERMS "USEFUL LIFE" AND "SALVAGE VALUE" AND THEIR
CONCLUSIONS SUPPORT WHAT HAS BEEN SAID.    GRANT AND NORTON,
DEPRECIATION (1949), 145-146: 

"(ASSETS SUCH AS PASSENGER AUTOMOBILES) MAY BE EXPECTED TO HAVE
SUBSTANTIAL POSITIVE SALVAGE VALUES.  AVERAGE SALVAGE VALUES MUST
THEREFORE BE ESTIMATED BEFORE STRAIGHT-LINE DEPRECIATION RATES CAN BE
ESTABLISHED.  SALVAGE VALUES WILL DEPEND ON AVERAGE LIVES WHICH MAY IN
TURN DEPEND ON THE OWNER'S POLICY WITH REGARD TO DISPOSAL OF SUCH
ASSETS.  FOR EXAMPLE, IF IT IS COMPANY POLICY TO TRADE IN PASSENGER
AUTOMOBILES AFTER THREE YEARS, THE ESTIMATION OF AVERAGE SALVAGE VALUE
IS SIMPLY THE ESTIMATION OF THE AVERAGE TRADE-IN VALUE OF A 3-YEAR-OLD
PASSENGER AUTOMOBILE." 

KOHLER, A DICTIONARY FOR ACCOUNTANTS (1952), 371, DEFINES SALVAGE
VALUE AS:    "ACTUAL OR PROSPECTIVE SELLING PRICE, AS SECOND-HAND
MATERIAL, OR AS JUNK OR SCRAP, OF FIXED ASSETS RETIRED, OR OF PRODUCT
OR MERCHANDISE UNSALABLE THROUGH USUAL CHANNELS, LESS ANY COST, ACTUAL
OR ESTIMATED, OF DISPOSITION; ...  .  " 

USEFUL LIFE IS DEFINED, ID., AT 440-441, AS FOLLOWS: 

"NORMAL OPERATING LIFE IN TERMS OF UTILITY TO THE OWNER; SAID OF A
FIXED ASSET OR A FIXED-ASSET GROUP; THE PERIOD MAY BE MORE OR LESS THAN
PHYSICAL LIFE OR ANY COMMONLY RECOGNIZED ECONOMIC LIFE; SERVICE LIFE." 

SALIERS, DEPRECIATION PRINCIPLES (1939), 72: 

"SALVAGE IS THE VALUE AN ARTICLE POSSESSES FOR SOME USE OTHER THAN
THAT TO WHICH IT HAS BEEN DEVOTED.  WHEN IT CAN BE SO USED IT IS SAID
TO POSSESS ANOTHER CYCLE OF LIFE.  JUNK OR SCRAP VALUE IS THAT WHICH AN
ARTICLE IS WORTH IF BROKEN UP.  IN MAKING ALLOWANCE FOR DEPRECIATION
THE BASIS TO BE USED IS COST LESS WHATEVER IT IS ESTIMATED THAT THE
SALVAGE OR SCRAP WILL AMOUNT TO." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITTAKER, AND MR. JUSTICE
STEWART JOIN, DISSENTING IN NOS. 141 AND 143, AND CONCURRING IN THE
JUDGMENT IN NO. 283.* 

*(THIS OPINION APPLIES ALSO TO NO. 283, HERTZ CORPORATION V. UNITED
STATES, POST, P. 122.) 

THIS IS ONE OF THOSE SITUATIONS WHERE WHAT MAY BE THOUGHT TO BE AN
APPEALING PRACTICAL POSITION ON THE PART OF THE GOVERNMENT HAS OBSCURED
THE WEAKNESSES OF ITS LEGAL POSITION, AT LEAST IN NOS. 141 AND 143. 

THE POSITION WHICH THE COMMISSIONER TAKES IN THESE CASES WITH RESPECT
TO THE BASIC ISSUE OF "USEFUL LIFE" IS THAT CONTAINED IN THE
REGULATIONS PROMULGATED BY HIM IN 1956 UNDER THE INTERNAL REVENUE CODE
OF 1954, WHICH DEFINE THE USEFUL LIFE OF A DEPRECIABLE ASSET AS THE: 

"PERIOD OVER WHICH THE ASSET MAY REASONABLY BE EXPECTED TO BE USEFUL
TO THE TAXPAYER IN HIS TRADE OR BUSINESS  ...  ."  (FN1) 

IN NO. 283 THE COMMISSIONER SEEKS TO APPLY THIS REGULATORY DEFINITION
TO THE RETURNS OF THE TAXPAYER WITH RESPECT TO THE TAXABLE YEARS ENDED
MARCH 31, 1954, 1955, AND 1956.  IN NOS. 141 AND 143 HE SEEKS IN EFFECT
TO APPLY THE SAME DEFINITION TO THE TAXABLE YEARS 1950 AND 1951, BOTH
OF WHICH WERE OF COURSE LONG BEFORE THE ENACTMENT OF THE 1954 CODE. 
SEE 264 F.2D, AT 506. 

I AGREE THAT THESE REGULATIONS REPRESENT A REASONABLE METHOD FOR
CALCULATING DEPRECIATION WITHING THE MEANING OF THE 1954 CODE, AND THAT
THEY ARE VALID AS APPLIED PROSPECTIVELY.  BUT SINCE I BELIEVE THAT AS
TO "USEFUL LIFE" THEY ARE WHOLLY INCONSISTENT WITH THE POSITION
UNIFORMLY TAKEN BY THE COMMISSIONER IN THE PAST, I DO NOT THINK THEY
CAN BE APPLIED RETROSPECTIVELY IN ALL INSTANCES.  WHILE I CONSIDER THAT
THE REGULATIONS MAY BE SO APPLIED IN NO. 283, IN MY OPINION THAT IS NOT
SO IN NOS. 141 AND 143. 

                                             I. 

IT IS FIRST IMPORTANT TO UNDERSTAND THE PRECISE NATURE OF THE ISSUES
BEFORE THE COURT.  BOTH THE METHOD OF DEPRECIATION CONTENDED FOR BY THE
TAXPAYERS AND THAT URGED BY THE GOVERNMENT PURPORT TO ALLOCATE AN
APPROPRIATE PORTION OF AN ASSET'S TOTAL COST TO EACH OF THE YEARS
DURING WHICH THE TAXPAYER HOLDS IT.  BOTH METHODS DEFINE THE TOTAL COST
TO BE SO ALLOCATED AS THE ORIGINAL COST OF THE ASSET LESS ITS SALVAGE
VALUE AT THE END OF ITS USEFUL LIFE.  AND UNDER BOTH METHODS, THE TOTAL
COST TO BE ALLOCATED IS DIVIDED BY THE NUMBER OF YEARS IN THE USEFUL
LIFE AND THE RESULTING FIGURE IS DEDUCTED FROM THE TAXPAYER'S INCOME
EACH YEAR HE HOLDS THE ASSET.  AS THE COURT CORRECTLY NOTES, THE
PRACTICAL DIFFERENCE IN THE END RESULTS OF THE TWO METHODS INVOLVES THE
EXTENT TO WHICH A TAXPAYER MAY BE ABLE TO OBTAIN CAPITAL-GAINS
TREATMENT FOR ASSETS SOLD AT OR BEFORE THE END OF THEIR USEFUL LIFE FOR
AMOUNTS REALIZED IN EXCESS OF THEIR REMAINING UNDEPRECIATED COST. 

THE DIFFERENCE BETWEEN THE TWO METHODS FROM A THEORETICAL STANDPOINT
IS SIMPLY THIS: THE TAXPAYERS DEFINE USEFUL LIFE AS THE ESTIMATED
PHYSICAL LIFE OF THE ASSET, WHILE THE GOVERNMENT DEFINES THE TERM AS
THE PERIOD DURING WHICH THE TAXPAYER ANTICIPATES ACTUALLY RETAINING THE
ASSET IN HIS BUSINESS.  THUS, UNDER THE TAXPAYERS' SYSTEM, THE TOTAL
COST TO BE ALLOCATED IS ORIGINAL COST LESS THE SALVAGE OR JUNK VALUE OF
THE ASSET AT THE END OF ITS PHYSICAL LIFE.  THIS FIGURE IS DIVIDED BY
THE NUMBER OF YEARS OF ESTIMATED PHYSICAL LIFE, AND THE QUOTIENT IS
SUBTRACTED FROM INCOME EACH YEAR THE TAXPAYER HOLDS THE ASSET.  UNDER
THE GOVERNMENT'S METHOD, THE TOTAL COST TO BE ALLOCATED IS ORIGINAL
COST LESS THE "SALVAGE" VALUE AT THE END OF THE ASSET'S ACTUAL USE IN
THE BUSINESS, THAT IS, LESS THE PRICE ANTICIPATED ON ITS RESALE AT THAT
TIME, EVEN THOUGH THE ASSET MAY NOT BE IN FACT PHYSICALLY EXHAUSTED. 
THIS FIGURE IS DIVIDED BY THE NUMBER OF YEARS IN THE HOLDING PERIOD,
AND THE QUOTIENT IS SUBTRACTED FROM INCOME EACH YEAR THE TAXPAYER HOLDS
THE ASSET. 

IF AN ASSET IS HELD UNTIL IT IS PHYSICALLY EXHAUSTED, BOTH METHODS
PRODUCE EXACTLY THE SAME RESULT.  SIMILARLY, BOTH METHODS CAN RESULT IN
INACCURACIES IF PREDICTIONS OF USEFUL LIFE AND SALVAGE VALUE TURN OUT
TO BE WRONG.  THE GOVERNMENT, HOWEVER, CONTENDS THAT WHERE IT CAN BE
PREDICTED WITH REASONABLE CERTAINTY THAT AN ASSET WILL BE DISPOSED OF
BEFORE THE END OF ITS PHYSICAL LIFE, ITS METHOD OF DEPRECIATION IS MORE
LIKELY TO REFLECT THE TRUE COST OF THE ASSET TO THE PARTICULAR
BUSINESS.  THIS IS SAID TO BE SO BECAUSE THE TRUE COST TO THE BUSINESS,
IN THE END, IS THE ASSET'S ORIGINAL COST LESS THE AMOUNT RECOVERED ON
ITS RESALE, AND THE GOVERNMENT'S METHODS STARTS FROM AN ESTIMATE OF
THAT AMOUNT, WHICH IS THEN ALLOCATED AMONG THE YEARS INVOLVED.  THE
TAXPAYERS' METHOD ON THE OTHER HAND, STARTS FROM AN ESTIMATE OF THE END
COST OF THE ASSET IN THE GENERAL BUSINESS WORLD, AND WILL ACCURATELY
REFLECT SUCH COST TO THE TAXPAYER'S BUSINESS ONLY IF THE DECLINE IN
MARKET VALUE AT THE TIME OF RESALE CAN BE EXPECTED TO CORRESPOND
ROUGHLY TO THE PORTION OF THE ASSET'S GENERAL BUSINESS END COST WHICH
HAS BEEN THERETOFORE DEPRECIATED.  IN MANY CASES THAT MAY BE TRUE, BUT
IN THE PRESENT CASES, THERE IS IN FACT A GREAT DISPARITY BETWEEN ACTUAL
DECLINE IN THE MARKET VALUE AT THE TIME OF RESALE AND THE PORTION OF
COST THERETOFORE DEPRECIATED UNDER TAXPAYERS' METHOD. 

IT NEED NOT BE DECIDED WHETHER, AS AN ABSTRACT MATTER, ONE METHOD OR
THE OTHER IS DEEMED PREFERABLE IN ACCOUNTING PRACTICE.  APPARENTLY
THERE IS A SPLIT OF AUTHORITY ON THAT VERY QUESTION.  (FN2)  IT IS
SUFFICIENT TO NOTE THAT IN MOST INSTANCES EITHER METHOD SEEMS TO GIVE
SATISFACTORY RESULTS.  ASSUMING THAT BECAUSE OF THE UNUSUAL CASE, SUCH
AS WE HAVE HERE, THE GOVERNMENT'S METHOD ON THE WHOLE MAY MORE
ACCURATELY REFLECT THE COST TO A PARTICULAR TAXPAYER'S BUSINESS, THE
QUESTION FOR ME IS WHETHER THE COMMISSIONER HAS NEVERTHELESS
ESTABLISHED A PRACTICE TO THE CONTRARY UPON WHICH TAXPAYERS WERE
ENTITLED TO RELY UNTIL CHANGED BY HIM.  I TURN NOW TO THE EXAMINATION
OF THAT QUESTION. 

                                            II. 

THE COURT RELIES ON THE WORDING OF CERTAIN REVENUE STATUTES AND
REGULATIONS TO SHOW THAT THE PERIOD DURING WHICH DEPRECIABLE ASSETS ARE
EMPLOYED IN THE TAXPAYER'S BUSINESS, AS OPPOSED TO THE PERIOD OF THEIR
PHYSICAL LIFE, HAS ALWAYS BEEN REGARDED AS USEFUL LIFE FOR PURPOSES OF
DEPRECIATION.   CONCEDEDLY, THE TERM USEFUL LIFE DID NOT APPEAR IN THE
STATUTE UNTIL THE INTERNAL REVENUE CODE OF 1954, AND THOUGH IT HAD
APPEARED IN THE REGULATIONS AS EARLY AS 1919, TREAS. REG. 45, ART. 161,
WAS NEVER DEFINED THEREIN UNTIL 1956, ANTE, P. 107, WHEN THE
COMMISSIONER TOOK THE POSITION HE NOW ASSERTS.  THE COURT SEIZES ON
LANGUAGE WHICH COULD EQUALLY BE READ TO SUPPORT THE GOVERNMENT'S OR THE
TAXPAYERS' CONTENTION.  THE SITUATION BEFORE 1956 WAS AS FOLLOWS: 

THE ACT OF OCT. 3, 1913, PERMITTED A REASONABLE ALLOWANCE FOR "WEAR
AND TEAR OF PROPERTY ARISING OUT OF ITS USE OR EMPLOYMENT IN THE
BUSINESS."  (FN3)  IT IS CERTAINLY TRUE, AS THE COURT SAYS, THAT THIS
MEANS THAT "THE WEAR AND TEAR TO THE PROPERTY MUST ARISE FROM ITS USE
IN THE BUSINESS OF THE TAXPAYER."  BUT IT DOES NOT FOLLOW AT ALL THAT
THE FORMULA FOR CALCULATING THAT WEAR AND TEAR MUST BE BASED ON A
USEFUL LIFE EQUAL TO THE PERIOD THE ASSET IS HELD IN THE BUSINESS. 
FOR, AS NOTED ABOVE, A FORMULA BASED ON THE PHYSICAL LIFE OF THE ASSET
ALSO RESULTS IN AN ESTIMATE OF THE PORTION OF THE ASSET'S TOTAL COST
ATTRIBUTABLE TO ITS USE IN THE BUSINESS, AND MAY IN SOME CIRCUMSTANCES
YIELD THE SAME TAX CONSEQUENCES AS A "HOLDING-PERIOD" FORMULA. 

TREASURY REGULATIONS 45, ART. 161, PROMULGATED IN 1919 AND CONTINUED
IN SUBSTANTIALLY THE SAME FORM UNTIL 1942, PROVIDED THAT THE TAXPAYER
SHOULD SET ASIDE EACH YEAR AN AMOUNT SUCH THAT "THE AGGREGATE OF SUCH
AMOUNTS FOR THE USEFUL LIFE OF THE PROPERTY IN THE BUSINESS WILL
SUFFICE, WITH THE SALVAGE VALUE, AT THE END OF SUCH USEFUL LIFE TO
PROVIDE IN PLACE OF THE PROPERTY ITS COST ...  ."  IN 1942, THE STATUTE
WAS AMENDED TO PERMIT DEPRECIATION, NOT ONLY, AS BEFORE, ON PROPERTY
USED IN THE TRADE OR BUSINESS, BUT ALSO ON PROPERTY HELD FOR THE
PRODUCTION OF INCOME.  ACCORDINGLY, THE REGULATION WAS REVISED TO
DELETE THE WORDS "PROPERTY IN THE BUSINESS" AND SUBSTITUTE THEREFOR
"THE DEPRECIABLE PROPERTY."  REG. 111, SEC. 29.23(1)-1.  THE COURT SAYS
THAT THE DELETED TERM COULD NOT HAVE BEEN MEANT TO DEFINE THE TYPE OF
PROPERTY SUBJECT TO THE DEPRECIATION ALLOWANCE, SINCE THAT FUNCTION WAS
ALREADY PERFORMED BY ANOTHER SECTION OF THE REGULATION.  THAT MAY BE
TRUE, BUT IT DOES NOT SHOW THAT THE LANGUAGE WAS MEANT TO DEFINE THE
PERIOD OF USEFUL LIFE.  IF IT HAD BEEN SO MEANT, THE COMMISSIONER WOULD
HARDLY HAVE SIMPLY SUBSTITUTED "USEFUL LIFE OF THE DEPRECIABLE
PROPERTY" FOR "USEFUL LIFE OF THE PROPERTY IN THE BUSINESS," BUT WOULD
HAVE INSERTED APPROPRIATE LANGUAGE, SUCH AS "USEFUL LIFE OF THE
PROPERTY WHILE USED IN THE BUSINESS OR HELD FOR THE PRODUCTION OF
INCOME."  IT IS QUITE EVIDENT THAT THE QUESTION OF A HOLDING PERIOD
DIFFERENT FROM THE PHYSICAL LIFE OF THE PROPERTY WAS NEVER ADVERTED TO,
AND THAT THE TERM "PROPERTY IN THE BUSINESS," WHILE NOT AN AFFIRMATIVE
DEFINITION OF THE TYPE OF PROPERTY SUBJECT TO DEPRECIATION, SIMPLY
REFERRED TO THAT DEFINITION IN CONNECTION WITH USEFUL LIFE BECAUSE IT
WAS APPARENTLY ASSUMED THAT ASSETS WERE GENERALLY HELD IN A TAXPAYER'S
BUSINESS UNTIL WORN OUT. 

IN LIGHT OF THE ABOVE, THE GOVERNMENT'S RELIANCE ON CASES SUCH AS
UNITED STATES V. LUDEY, 274 U.S. 295, 300-301, AND DETROIT EDISON CO.
V. COMMISSIONER, 319 U.S. 98, 101, IS WIDE OF THE MARK.  THE LANGUAGE
RELIED UPON IN LUDEY IS VIRTUALLY IDENTICAL TO THAT CONTAINED IN THE
PRE-1942 REGULATIONS, AND THAT IN DETROIT EDISON MERELY SAYS THAT THE
PURPOSE OF DEPRECIATION IS TO RECOVER, BY THE TIME OF AN ASSET'S
RETIREMENT, THE ORIGINAL INVESTMENT THEREIN.  AS NOTED ABOVE,
DEPRECIATION BASED ON EITHER DEFINITION OF USEFUL LIFE IS DEDICATED TO
THAT END.  THE GOVERNMENT'S RELIANCE ON BULLETIN "F" IS ALSO
MISPLACED.  THE COURT REFERS TO A STATEMENT ON PAGE 2 OF THE BULLETIN
WHICH MERELY LIFTS FROM THE REGULATION THE PHRASE "USEFUL LIFE OF THE
PROPERTY IN THE BUSINESS."  THE COURT ALSO RELIES ON A STATEMENT
APPEARING ON PAGE 7, DEFINING SALVAGE AS "THE AMOUNT REALIZABLE FROM
THE SALE  ...  WHEN PROPERTY HAS BECOME NO LONGER USEFUL IN THE
TAXPAYER'S BUSINESS AND IS DEMOLISHED, DISMANTLED, OR RETIRED FROM
SERVICE."  THE ITALICIZED LANGUAGE AGAIN REVEALS THE ASSUMPTION THAT
ASSETS WERE GENERALLY INTENDED FOR USE IN THE BUSINESS UNTIL THEIR
PHYSICAL EXHAUSTION.  THE PRESENT QUESTION WAS NEVER ADVERTED TO. 

I BELIEVE, THEREFORE, THAT THE STATUTE AND REGULATIONS ARE WHOLLY
INCONCLUSIVE, AND THAT THE COMMISSIONER'S POSITION CAN BE GLEANED ONLY
FROM THE STAND HE HAS TAKEN IN LITIGATED CASES.  I TURN NOW TO THOSE
CASES.  CONTRARY TO THE PICTURE OF UNCERTAINTY WHICH THE COURT DRAWS
FROM THEM, I BELIEVE THEY LEAVE LITTLE ROOM FOR DOUBT BUT THAT THE
COMMISSIONER'S PRE-1956 POSITION ON "USEFUL LIFE" WAS FLATLY OPPOSED TO
THAT WHICH HE NOW TAKES. 

                                              III. 

IN EXAMINING THE CASES, IT MUST BE BORNE IN MIND THAT EVEN THE
COMMISSIONER DOES NOT CONTEND THAT A TAXPAYER WHO HAPPENS TO DISPOSE OF
SOME ASSET BEFORE ITS PHYSICAL EXHAUSTION MUST DEPRECIATE IT ON A
USEFUL LIFE EQUAL TO THE TIME IT WAS ACTUALLY HELD.  IT IS ONLY WHEN
THE ASSET "MAY REASONABLY BE EXPECTED" TO BE DISPOSED OF PRIOR TO THE
END OF ITS PHYSICAL LIFE THAT THE TAXPAYER MUST BASE DEPRECIATION ON
THE SHORTER PERIOD.  REG. SEC. 1.167(A)-1(B).  THEREFORE, THE ONLY
CASES RELEVANT IN THIS REGARD ARE THOSE IN WHICH THE TAXPAYER'S PAST
EXPERIENCE INDICATED THAT ASSETS WOULD BE DISPOSED OF PRIOR TO BECOMING
JUNK, THUS PRESENTING THE ISSUE WHETHER THE SHORTER OR LONGER PERIOD
SHOULD CONTROL FOR PURPOSES OF DEPRECIATION.  (FN4) 

IN FOUR SUCH CASES, INVOLVING TAX YEARS PRIOR TO 1942, THE TAXPAYER
HAD A PRACTICE OF DISPOSING OF ASSETS SUBSTANTIALLY PRIOR TO THEIR
PHYSICAL EXHAUSTION.  IN MERKLE BROOM CO., 3 B.T.A. 1084, THE TAXPAYER
CUSTOMARILY DISPOSED OF ITS AUTOMOBILES AFTER TWO YEARS.  IT ATTEMPTED
TO DEPRECIATE THEM OVER A THREE-YEAR USEFUL LIFE; THE COMMISSIONER
ASSERTED A FIVE-YEAR USEFUL LIFE; AND THE COURT ALLOWED FOUR YEARS. 
IN KURTZ, 8 B.T.A. 679, THE TAXPAYERS CUSTOMARILY SOLD THEIR
AUTOMOBILES AFTER TWO OR THREE YEARS AT SUBSTANTIAL VALUES.  THEY
DEPRECIATED ON A FOUR-YEAR USEFUL LIFE; THE COMMISSIONER ASSERTED A
FIVE-YEAR LIFE; AND THE COURT AGREED. 

IN SANFORD COTTON MILLS, 14 B.T.A. 1210, THE TAXPAYER CUSTOMARILY
DISPOSED OF ITS MOTOR TRUCKS AFTER TWO AND ONE-HALF YEARS.  IT CLAIMED
A THREE-YEAR USEFUL LIFE; THE COMMISSIONER ASSERTED A FIVE-YEAR USEFUL
LIFE; AND THE COURT FOUND THAT FOUR YEARS WAS REASONABLE. 

IN GENERAL SECURITIES CO., 1942 P-H BTA-TC MEM. DEC. PARA. 42,219,
THE TAXPAYER SOLD ITS AUTOMOBILES AFTER ONE OR TWO YEARS.  THE COURT
HELD THAT A REASONABLE USEFUL LIFE WAS THREE YEARS.    IT IS APPARENT
FROM THESE CASES THAT BOTH THE COMMISSIONER AND THE COURTS WERE
THINKING SOLELY IN TERMS OF THE PHYSICAL LIFE OF THE ASSET, DESPITE THE
FACT THAT THE TAXPAYER CUSTOMARILY HELD THE ASSETS FOR A SUBSTANTIALLY
SHORTER PERIOD.  IN AT LEAST SOME OF THE CASES, IT WOULD HAVE MADE A
VERY REAL DIFFERENCE HAD DEPRECIATION BEEN CALCULATED ON THE BASIS THAT
THE USEFUL LIFE OF THE ASSET MEANT ITS HOLDING PERIOD.  FOR EXAMPLE, IN
THE SANFORD CASE, TAXPAYER'S TRUCKS WERE SOLD AFTER TWO AND ONE-HALF
YEARS AT LESS THAN ONE-SEVENTH OF THEIR ORIGINAL COST.  GIVEN THE FIVE
YEAR USEFUL LIFE PROPOSED BY THE COMMISSIONER, TAXPAYER WOULD HAVE HAD,
AT THE TIME OF RESALE, AN UNDEPRECIATED BASIS EQUAL TO HALF THE
ORIGINAL COST, WHILE THE PROCEEDS OF RESALE WOULD HAVE BROUGHT IT ONLY
ONE-SEVENTH OF ORIGINAL COST, THUS GIVING RISE TO A LOSS OF THE
DIFFERENCE.  IF THE GOVERNMENT'S PRESENT POSITION HAD BEEN APPLIED, THE
DIFFERENCE BETWEEN ORIGINAL COST AND RESALE VALUE WOULD HAVE BEEN
DEPRECIATED OVER TWO AND ONE-HALF YEARS, GIVING RISE TO NO GAIN OR LOSS
AT THE END OF THAT TIME.  SIMILARLY, IN THE GENERAL SECURITIES CASE,
GIVEN A THREE-YEAR USEFUL LIFE, THE TAXPAYER'S AUTOMOBILES, WHEN TRADED
IN AFTER ONE YEAR, HAD AN UNDEPRECIATED BASIS OF TWO-THIRDS OF ORIGINAL
COST, YET THEIR RESALE BROUGHT ONLY ONE-HALF TO ONE-THIRD OF THEIR
ORIGINAL COST, AGAIN RESULTING IN SUBSTANTIAL LOSS WHICH WOULD HAVE
BEEN AVOIDED UNDER THE GOVERNMENT'S PRESENT METHOD. 

IT IS TRUE THAT THE ONLY TAX DISTORTION PRESENT IN THESE CASES WAS A
SHIFT OF ORDINARY DEDUCTIONS FROM THE YEARS IN WHICH THE PROPERTY WAS
USED IN THE BUSINESS TO THE FINAL YEAR OF ITS DISPOSITION.  IT IS ALSO
TRUE THAT HAD THE SITUATION BEEN REVERSED, SO THAT DEPRECIATION ON A
PHYSICAL-LIFE BASIS OUTRAN DECLINE IN MARKET VALUE, THE RESULTING GAIN
IN THE YEAR OF DISPOSITION WOULD HAVE BEEN ORDINARY INCOME, SINCE
CAPITAL-GAINS TREATMENT FOR DISPOSITION OF PROPERTY USED IN THE TRADE
OR BUSINESS WAS NOT ACCORDED BY CONGRESS UNTIL 1942.  (FN5)  HOWEVER,
IT IS SIGNIFICANT THAT THE COMMISSIONER'S ADHERENCE TO A PHYSICAL-LIFE
METHOD DID RESULT IN A DISTORTION OF INCOME BY SHIFTING DEDUCTIONS
AMONG VARIOUS TAX YEARS, WHICH OFTEN ENTAILS SERIOUS REVENUE
CONSEQUENCES, AND THAT BY 1942 PHYSICAL LIFE SEEMS TO HAVE BEEN
UNIFORMLY ACCEPTED AS THE PROPER DEFINITION OF USEFUL LIFE. 

IN LIGHT OF THESE CIRCUMSTANCES, FOUR CASES INVOLVING TAX YEARS
SUBSEQUENT TO 1942 ACQUIRE SPECIAL SIGNIFICANCE.  IN PILOT FREIGHT
CARRIERS, INC., 15 CCH T.C. MEM. 1027, THE TAXPAYER DISPOSED OF ITS
TRACTORS AFTER AN AVERAGE OF 38 MONTHS AND ITS TRAILERS AFTER AN
AVERAGE OF 32.6 MONTHS.  IT CLAIMED DEPRECIATION ON A FOUR-YEAR USEFUL
LIFE WITH 10% OR LESS SALVAGE VALUE.  THE COMMISSIONER ASSERTED USEFUL
LIVES OF FIVE AND SIX YEARS FOR THE TRACTORS AND TRAILERS,
RESPECTIVELY, WAS REASONABLE.  IT IS TO BE NOTED THAT UPON RESALE,
TAXPAYER RECEIVED, BECAUSE OF WARTIME INFLATION, AMOUNTS SUBSTANTIALLY
IN EXCESS OF UNDEPRECIATED COST, RESULTING IN LARGE CAPITAL GAINS.  YET
THE COMMISSIONER, IN ATTEMPTING TO CORRECT THIS DISPARITY, ASSERTED
ONLY THAT USEFUL LIFE SHOULD BE INCREASED TO REFLECT MORE ACCURATELY
THE PHYSICAL EXHAUSTION OF THE ASSETS, NOT THAT IT SHOULD BE EQUATED
WITH THE HOLDING PERIOD. 

IN LYNCH-DAVIDSON MOTORS, INC., V. TOMLINSON, 58-2 U.S.T.C. PARA.
9738, AN AUTOMOBILE DEALER DISPOSED OF COMPANY CARS EACH YEAR WHEN NEW
MODELS WERE BROUGHT OUT, YET DEPRECIATED ON A THREE-YEAR USEFUL LIFE
WITH SALVAGE VALUE OF $50.  THE COMMISSIONER DID NOT DISPUTE THIS
METHOD OF DEPRECIATION AND THE COURT HELD IT TO BE PROPER.  IN THE
COMPANION CASE OF DAVIDSON V. TOMLINSON, 58-2 U.S.T.C. PARA. 9739,
TAXPAYERS WERE IN THE AUTOMOBILE RENTAL BUSINESS, AND KEPT THEIR
AUTOMOBILES ONLY ONE YEAR.  THEY ALSO WERE PERMITTED TO DEPRECIATE ON A
USEFUL LIFE OF THREE YEARS WITH $50 SALVAGE VALUE.  THE STRIKING
SIMILARITY BETWEEN THE FACTS OF THESE TWO CASES AND THOSE OF THE
PRESENT ONES NEED NOT BE ELABORATED. 

FINALLY, AS LATE AS 1959, IN HILLARD, 31 T.C. 961, THE COMMISSIONER
TOOK THE POSITION THAT THE TAXPAYER, WHO OPERATED A CAR RENTAL
BUSINESS, AND WHO DISPOSED OF HIS CARS AFTER ONE YEAR, SHOULD
DEPRECIATE THEM ON THE BASIS OF A FOUR-YEAR USEFUL LIFE RATHER THAN THE
THREE YEARS CONTENDED FOR BY TAXPAYER. 

THUS IN ALL THESE CASES, AS IN THE CASES BEFORE US, THE PROBLEM OF
OFFSETTING DEPRECIATION DEDUCTIONS BY CAPITAL GAINS EXISTED;
NEVERTHELESS THE COMMISSIONER CONSISTENTLY ADHERED TO THE POSITION,
ADOPTED LONG PRIOR TO 1942, THAT PHYSICAL LIFE CONTROLLED. 

THE COURT, HOWVER, SEEMS TO BELIEVE THAT THE EFFECT OF THESE CASES IS
VITIATED BY SEVERAL CASES DELAING WITH "SALVAGE" VALUE.  IN THREE OF
SUCH CASES, (FN6) THE ASSETS WERE APPARENTLY HELD BY THE TAXPAYER UNTIL
AT OR NEAR THE END OF THEIR PHYSICAL LIVES, AND THE ONLY ISSUE WAS
WHETHER THE TAXPAYER HAD ERRONEOUSLY CALCULATED THE SALVAGE VALUE AT
THE END OF THAT TIME.  THUS THEY ARE OF NO SIGNIFICANCE FOR PRESENT
PURPOSES. 

THE COURT'S VIEW FARES NO BETTER UNDER ANY OTHER OF THESE CASES.  IN
BOLTA CO., 4 CCH T.C. MEM. 1067, INVOLVING A 1941 TAX YEAR, THE
TAXPAYER DISPOSED OF SEVERAL MACHINES AFTER THEY HAD CEASED TO BE
USEFUL IN ITS BUSINESS BUT WHILE THEY WERE STILL USEFUL IN OTHER
BUSINESSES.  IT PROJECTED AN AVERAGE HOLDING PERIOD OF FIVE YEARS AND
ASSUMED NO SALVAGE VALUE.  THE COMMISSIONER ACQUIESCED IN THE FIVE-YEAR
USEFUL LIFE BUT CONTENDED THAT THE TAXPAYER COULD REASONABLY HAVE
ANTICIPATED A SALVAGE VALUE EQUAL TO 25% OF ORIGINAL COST.  THE COURT
AGREED. 

IN KOELLING V. UNITED STATES, 57-1 U.S.T.C. PARA. 9453, TAXPAYERS
DISPOSED OF CATTLE AFTER THEY WERE NO LONGER USEFUL FOR BREEDING, AND
DEPRECIATED THEM ON A USEFUL LIFE EQUAL TO THAT PERIOD, MAKING NO
ALLOWANCE FOR SALVAGE VALUE.  THE COMMISSIONER FOUND THAT IT WAS
UNREASONABLE THUS TO DEDUCT THE ENTIRE COST OF THE ANIMALS OVER THEIR
BREEDING LIFE, AND REQUIRED THE TAXPAYERS TO DEDUCT AS SALVAGE VALUE
THEIR PREDICTED RESALE PRICE. 

IN COHN V. UNITED STATES, 259 F.2D 371, TAXPAYERS HAD ESTABLISHED
FLYING SCHOOLS DURING 1941 AND 1942 UNDER CONTRACT WITH THE ARMY AIR
CORPS.  THE ARRANGEMENT WAS EXPECTED TO LAST ONLY UNTIL THE END OF
1944, AND THE USEFUL LIFE OF PROPERTY USED IN THE BUSINESS WAS
CALCULATED ON THAT BASIS, WITH NO ALLOWANCE FOR SALVAGE VALUE.  THE
COMMISSIONER ASSERTED VARIOUS LONGER USEFUL LIVES FOR THE PROPERTY,
VARYING FROM FIVE TO TEN YEARS.  THE COURT PERMITTED THE TAXPAYERS TO
USE THE SHORTER USEFUL LIFE, BUT REQUIRED THEM TO DEDUCT THE REASONABLE
SALVAGE VALUE OF THE EQUIPMENT WHICH WOULD BE REALIZED AT THE END OF
THAT PERIOD.  THE GOVERNMENT DID NOT APPEAL FROM THE USEFUL-LIFE RULING
AND THE ONLY DISPUTE WAS OVER THE CORRECT AMOUNT OF SALVAGE VALUE. 

THUS IN TWO OF THE RELEVANT SALVAGE-VALUE CASES, BOLTA AND KOELLING,
THE TAXPAYER HIMSELF PROPOSED A USEFUL LIFE EQUIVALENT TO HOLDING
PERIOD BUT EMPLOYED A HYBRID VERSION BY FAILING TO ADOPT THE
CORRESPONDING CONCEPT OF SALVAGE VALUE.  THE COMMISSIONER MERELY TOOK
THE POSITION THAT IF THE HOLDING-PERIOD METHOD WAS TO BE USED, IT MUST
BE USED CONSISTENTLY BY DEDUCTING THE APPROPRIATE SALVAGE VALUE.  IN
THE THIRD, COHN, THE COMMISSIONER ACTUALLY REJECTED THE TAXPAYERS'
ATTEMPT TO EMPLOY THE HOLDING PERIOD AND MERELY ACQUIESCED WHEN THE
COURT PERMITTED THE TAXPAYERS TO DO SO, PROVIDED THE CORRESPONDING
SALVAGE VALUE WAS DEDUCTED.  HOWEVER, IN NO CASE, UNTIL THE PRESENT
ONES, DOES IT APPEAR THAT THE COMMISSIONER HAS EVER SOUGHT TO REQUIRE
THE TAXPAYER TO USE THE HOLDING-PERIOD METHOD WHERE THE TAXPAYER HAS
ATTEMPTED TO USE PHYSICAL LIFE.  AND I DO NOT UNDERSTAND THE GOVERNMENT
TO CONTROVERT THIS.  TO THE CONTRARY, THE COMMISSIONER HAS NOT
INFREQUENTLY REQUIRED THE TAXPAYER TO DEPRECIATE ON THE BASIS OF
PHYSICAL LIFE WHERE THE TAXPAYER HAD ATTEMPTED TO EMPLOY A SHORTER
PERIOD, EVEN IN INSTANCES WHERE SIGNIFICANT CAPITAL-GAINS CONSEQUENCES
TURNED ON THE DIFFERENCE.  INDEED, AS THE LYNCH-DAVIDSON, DAVIDSON, AND
HILLARD CASES, SUPRA, INDICATE, THE COMMISSIONER, UNTIL QUITE RECENTLY,
HAS ADHERED TO THE PHYSICAL-LIFE CONCEPT IN AUTOMOBILE CASES VIRTUALLY
INDISTINGUISHABLE FROM THE PRESENT ONES.  IN THE PAST THE COMMISSIONER,
UNSUCCESSFULLY, HAS MERELY SOUGHT TO CURB THE CAPITAL-GAINS
POSSIBILITIES IN SUCH INSTANCES BY CONTENDING THAT THE AUTOMOBILES
INVOLVED WERE NOT DEPRECIABLE ASSETS SUBJECT TO CAPITAL-GAINS TREATMENT
UNDER SEC. 117(J) OF THE INTERNAL REVENUE CODE OF 1939.  HAVING
CONCEDED THAT THE PROPERTY INVOLVED IN THE PRESENT CASES IS SUBJECT TO
THE DEPRECIATION DEDUCTION, I DO NOT THINK THE COMMISSIONER SHOULD NOW
BE PERMITTED TO DEFEAT HIS OWN POSITION AS REGARDS THE MEANING OF
"USEFUL LIFE" - A POSITION CONSISTENTLY MAINTAINED BY HIM OVER A PERIOD
OF 33 YEARS FROM 1926 TO 1959 IN EVERY LITIGATED CASE TO WHICH OUR
ATTENTION HAS BEEN CALLED - BY REQUIRING THESE TAXPAYERS, IN RESPECT OF
TAXABLE YEARS NOT SUBJECT TO THE PROVISIONS OF THE 1954 CODE, TO ADOPT
A HOLDING-PERIOD FORMULA FOR USEFUL LIFE IN DEPRECIATING THE ASSETS IN
QUESTION.  CF. HELVERING V. R.J.  REYNOLDS TOBACCO CO., 306 U.S. 110,
AND HELVERING V. GRIFFITHS, 318 U.S. 371.  IN THE APPLICATION OF THIS
SALUTARY PRINCIPLE IT SHOULD MAKE NO DIFFERENCE THAT THE COMMISSIONER'S
EARLIER DIFFERENT PRACTICE WAS NOT EMBODIED IN A FORMAL REGULATION. 
CF.  HELVERING V. REYNOLDS, 313 U.S. 428, 432; HIGGINS V. COMMISSIONER,
312 U.S. 212, 216. 

ACCORDINGLY, I WOULD REVERSE IN NO. 141 AND AFFIRM IN NO. 143. 

                     IV. 

THE SITUATION PRESENTED IN NO. 283 IS, HOWEVER, DIFFERENT.  THE
TAXABLE YEARS IN QUESTION THERE ARE THOSE TERMINATING ON MARCH 31,
1954, 1955, AND 1956, RESPECTIVELY.  ALL THE TAXABLE YEARS THUS ENDED
BEFORE THE PROMULGATION OF THE NEW DEPRECIATION REGULATIONS ON JUNE 11,
1956.  (FN7)  THE GOVERNMENT CONCEDES THAT CONGRESS DID NOT CHANGE THE
CONCEPT OF USEFUL LIFE WHEN IT ENACTED THE 1954 CODE.  THEREFORE, THE
QUESTION HERE IS WHETHER THE COMMISSIONER CAN, BY A FORMAL REGULATION,
CHANGE HIS POSITION RETROACTIVE ONLY TO THE EFFECTIVE DATE OF THE
STATUTE UNDER WHICH IT IS PROMULGATED. 

PETITIONER, RELYING ON HELVERING V. R.J. REYNOLDS TOBACCO CO. AND
HELVERING V. GRIFFITHS, SUPRA, ASSERTS THAT WHERE A REGULATION
INTERPRETING A STATUTE HAS BEEN IN FORCE FOR SOME TIME AND HAS SURVIVED
THE RE-ENACTMENT OF THE STATUTE, THE COMMISSIONER CANNOT RETROACTIVELY
CHANGE THAT INTERPRETATION BY A NEW REGULATION.  HOWEVER, HERE THE
COMMISSIONER'S EARLIER ADHERENCE TO THE PHYSICAL-LIFE CONCEPT OF USEFUL
LIFE WAS EXPRESSED NOT IN THE REGULATIONS - WHICH DID NOT REFER TO THE
PROBLEM - BUT IN HIS OWN ADMINISTRATIVE PRACTICE.  THEREFORE, THE
PRESENT CASE IN MORE LIKE HELVERING V. REYNOLDS, 313 U.S. 428, WHEREIN
THIS COURT PERMITTED THE COMMISSIONER TO APPLY A REGULATION RETROACTIVE
TO THE EFFECTIVE DATE OF THE STATUTE UNDER WHICH IT WAS PROMULGATED,
WHERE HIS PREVIOUS CONTRARY POSITION HAD BEEN EXPRESSED ONLY BY
INFORMAL ADMINISTRATIVE PRACTICE, EVEN THOUGH THE STATUTE HAD BEEN RE
ENACTED IN THE INTERIM.  APPLICATION OF THIS PRINCIPLE IN THE PRESENT
CASE IS THE MORE CALLED FOR, SINCE CONGRESS, IN THE 1954 CODE, HAS FOR
THE FIRST TIME USED THE TERM "USEFUL LIFE" AND HAS MADE THE
AVAILABILITY OF CERTAIN NEW ACCELERATED METHODS OF DEPRECIATION - AMONG
THEM THE SO-CALLED "DECLINING BALANCE METHOD," USED BY THE TAXPAYER
HERE - DEPENDENT UPON ITS DEFINITION.  IT IS APPROPRIATE THEREFORE TO
PERMIT THE TREASURY MAXIMUM DISCRETION IN INTEGRATING THE CONCEPT OF
USEFUL LIFE INTO THE NEW PROVISIONS AND IN DOING SO FROM THE EFFECTIVE
DATE OF THE STATUTE FORWARD. 

SINCE THE STATUTE PERMITS USE OF THE DECLINING-BALANCE METHODS ONLY
AS TO PROPERTY WITH A USEFUL LIFE OF THREE YEARS OR MORE, IT FOLLOWS
THAT THE COMMISSIONER PROPERLY DISALLOWED USE OF THE DECLINING-BALANCE
METHODS AS TO HERTZ' AUTOMOBILES, WHOSE USEFUL LIFE UNDER THE NEW
REGULATION WAS LESS THAN THREE YEARS.  AS TO ITS TRUCKS, ADMITTEDLY
HELD FOR MORE THAN THREE YEARS, THE ONLY REMAINING QUESTION IS WHETHER
HERTZ SHOULD BE ALLOWED TO DEPRECIATE THEM BELOW WHAT THE COMMISSIONER
CONSIDERS TO BE A REASONABLE SALVAGE VALUE.  GIVEN THE FACT THAT THE
COMMISSIONER'S DEFINITION OF SALVAGE VALUE AS RESALE PRICE ON
DISPOSITION OF THE ASSET AT THE END OF ITS HOLDING PERIOD IS VALIDLY
APPLICABLE TO HERTZ, IT BECOMES IMPORTANT THAT THE DECLINING-BALANCE
METHOD NOT BE CONSTRUED TO DEFEAT THAT CONCEPT.  WERE THERE NO "SALVAGE
STOP" IN CONNECTION WITH DECLINING-BALANCE DEPRECIATION, IT IS CLEAR
THAT TAXPAYERS WHO HELD ASSETS FOR RELATIVELY SHORT PERIODS OF TIME
MIGHT BE ABLE TO DEPRECIATE FAR BELOW ANTICIPATED RESALE PRICE, SINCE
THE DECLINING-BALANCE RATE IS APPLIED AGAINST THE ENTIRE COST OF THE
ASSET UNDIMINISHED BY SALVAGE.  SINCE THE LEGISLATIVE HISTORY OF THE
STATUTE IN THIS REGARD IS AMBIGUOUS AT BEST, AND SINCE THERE IS NO
PRIOR STATUTE OR ADMINISTRATIVE INTERPRETATION TO BECLOUD THE ISSUE,
THE COMMISSIONER'S CONSTRUCTION SHOULD BE ALLOWED TO STAND. 
ACCORDINGLY, I CONCUR IN THE COURT'S JUDGMENT AFFIRMING NO. 283. 

FN1  TREASURY REGULATIONS ON DEPRECIATION, SEC. 1.167(A)-1(B), T.D.
6182, 1956-1 CUM.  BULL.  98, JUNE 11, 1956.    FN2  AT THE TRIALS
BELOW, TAXPAYERS' EXPERT WITNESSES TESTIFIED THAT DEPRECIATION BASED ON
PHYSICAL LIFE WAS THE COMMONLY ACCEPTED ACCOUNTING STANDARD.  SEVERAL
TEXTBOOKS, CITED BY THE COURT, ANTE, P. 106, TAKE THE CONTRARY VIEW. 

FN3  38 STAT. 114, 167. 

FN4  THREE CASES CITED BY THE COURT, WEST VIRGINIA & PENNSYLVANIA
COAL & COKE CO., 1 B.T.A. 790; JAMES, 2 B.T.A. 1071; AND WHITMAN
DOUGLAS CO., 8 B.T.A. 694, INVOLVED ISOLATED DISPOSITIONS OF ASSETS
PRIOR TO THEIR PHYSICAL EXHAUSTION, AND THERE WAS NO EVIDENCE
INDICATING A CONSISTENT PRACTICE BY THE TAXPAYER IN THIS REGARD.    FN5
REVENUE ACT OF 1942, SEC. 151, 56 STAT. 846. 

FN6  WIER LONG LEAF LUMBER CO., 9 T.C. 990; W.H. NORRIS LUMBER CO., 7
CCH T.C. MEM.  728; DAVIDSON, 12 CCH T.C. MEM. 1080.  IN THE WIER CASE,
IT IS NOT CLEAR WHETHER SOME OF THE ASSETS MIGHT HAVE BEEN USEFUL FOR
SOME ADDITIONAL PERIOD IN OTHER BUSINESSES. 

FN7  T.D. 6182, 1956-1 CUM. BULL.  98.  PRIOR TO THAT TIME THE
REGULATIONS UNDER THE 1939 CODE WERE CONTINUED IN FORCE.  T.D. 6091,
1954-2 CUM. BULL.  47. 

MR. JUSTICE DOUGLAS JOINS PARTS I, II, AND III OF THIS OPINION.  HE
WOULD, HOWEVER, REVERSE IN NO. 283 - HERTZ CORP. V. UNITED STATES, ON
THE GROUND THAT THE CHANGE IN ADMINISTRATIVE PRACTICE INVOLVED HERE
SHOULD NOT BE RETROACTIVELY APPLIED UNDER THE CIRCUMSTANCES OF THIS
CASE.  CF. UNITED STATES V. LESLIE SALT CO., 350 U.S. 383, 396. 
..END :















HERTZ CORPORATION (SUCCESSOR TO J. FRANK CONNOR, INC.) V. UNITED STATES
364 U.S. 122 


NO. 283.  ARGUED MARCH 30, 1960 - DECIDED JUNE 27, 1960 - 268 F.2D 604,
AFFIRMED. 


THE INTERNAL REVENUE CODE OF 1954, SEC. 167(B)(2), PROVIDES AN
ACCELERATED METHOD OF DEPRECIATION, KNOWN AS THE "DECLINING BALANCE
METHOD" OF COMPUTING DEPRECIATION DEDUCTIONS FOR INCOME TAX PURPOSES;
BUT SEC. 167(C) LIMITS THE USE OF THIS METHOD TO PROPERTY "WITH A
USEFUL LIFE OF 3 YEARS OR MORE."  THE APPLICABLE TREASURY REGULATION,
SEC. 1.167(B), ISSUED IN 1956, DEFINES "USEFUL LIFE" AS THE "PERIOD
OVER WHICH THE ASSET MAY REASONABLY BE EXPECTED TO BE USEFUL TO THE
TAXPAYER IN HIS TRADE OR BUSINESS," AND SEC. 1.167(B)-2 PROVIDES THAT
"IN NO EVENT SHALL AN ASSET  ...  BE DEPRECIATED BELOW A REASONABLE
SALVAGE VALUE."  HELD: 

1.  THIS REGULATION IS VALID, MASSEY MOTORS, INC., V. UNITED STATES,
ANTE, P. 92, AND THE DECLINING BALANCE METHOD MAY NOT BE USED IN
COMPUTING THE DEPRECIATION ON THE PASSENGER CARS USED BY PETITIONER IN
ITS AUTOMOBILE RENTAL BUSINESS DURING THE YEARS 1954-1956, INCLUSIVE,
SINCE THEY WERE SO USED FOR LESS THAN THREE YEARS.  PP. 123-124. 

2.  SINCE THE TRUCKS USED IN PETITIONER'S TRUCK-RENTAL BUSINESS WERE
SO USED FOR MORE THAN THREE YEARS, THEY WERE SUBJECT TO DEPRECIATION
UNDER THE "DECLINING BALANCE METHOD"; BUT THEIR SALVAGE VALUE AT THE
TIME OF DISPOSITION MUST BE ACCOUNTED FOR IN THE DEPRECIATION
EQUATION.  PP. 124-129. 

(A)  HAVING ELECTED TO COMPUTE DEPRECIATION ON THE "DECLINING BALANCE
METHOD" IN CONNECTION WITH HIS RETURNS FOR THE YEARS 1954-1956,
INCLUSIVE, PETITIONER CANNOT ABANDON THAT METHOD ON THE GROUND THAT IT
RESULTS IN A RETROACTIVE APPLICATION OF A TREASURY REGULATION ISSUED IN
1956.  PP. 125-126. 

(B)  THE PROVISION OF TREASURY REGULATION SEC. 1.167(B)-2 THAT, "IN
NO EVENT SHALL AN ASSET  ... BE DEPRECIATED BELOW A REASONABLE SALVAGE
VALUE," IS VALID.  PP. 126-129. 

HERTZ CORPORATION (SUCCESSOR TO J. FRANK CONNOR, INC.) V. UNITED
STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE NO. 141, MASSEY MOTORS, INC., V. UNITED STATES, AND
NO. 143, COMMISSIONER V. EVANS, BOTH DECIDED TODAY, ANTE, P. 92,
INVOLVES THE DEPRECIATION ALLOWABLE ON CARS AND TRUCKS USED BY
PETITIONER'S PREDECESSOR IN ITS AUTOMOBILE RENTAL BUSINESS DURING THE
YEARS 1954-1956, INCLUSIVE.   THE TAXPAYER ELECTED TO AVAIL ITSELF OF
THE ACCELERATED METHOD OF DEPRECIATION PROVIDED IN SEC. 167(B)(2) (FN1)
OF THE INTERNAL REVENUE CODE OF 1954 - KNOWN AS "THE DECLINING BALANCE
METHOD."  SECTION 167(C) OF THE CODE LIMITS THE USE OF THIS METHOD TO
PROPERTY "WITH A USEFUL LIFE OF 3 YEARS OR MORE."  THE APPLICABLE
TREASURY REGULATIONS ON DEPRECIATION, SEC. 1.167(A)-1(B), T.D. 6182,
1956-1 CUM. BULL.  98, ISSUED IN 1956, DEFINE USEFUL LIFE AS THE
"PERIOD OVER WHICH THE ASSET MAY REASONABLY BE EXPECTED TO BE USEFUL TO
THE TAXPAYER IN HIS TRADE OR BUSINESS ...  ."  ADMITTEDLY, IF THIS
REGULATION IS VALID, TAXPAYER'S PASSENGER CARS COVERED BY IT WOULD NOT
MEET THE THREE-YEAR REQUIREMENT OF SEC. 167(C).  THE COMMISSIONER
DENIED THE PETITIONER THE RIGHT TO USE THE DECLINING BALANCE METHOD AS
TO THOSE CARS.  WHAT WE HAVE SAID IN MASSEY AND EVANS, SUPRA, DISPOSES
OF THE CONTENTION AS TO THE MEANING OF "USEFUL LIFE" HERE.  WE
THEREFORE HOLD, AS DID THE COURT OF APPEALS, 268 F.2D 604, THAT THE
REGULATION AS TO "USEFUL LIFE" INVOLVED HERE IS VALID AND APPLICABLE TO
PETITIONER. 

THE REMAINING ISSUES POSE QUESTIONS THAT RELATE TO THE DEPRECIATION
ON THE TRUCKS OF THE TAXPAYER WHICH CONCEDEDLY HAD A USEFUL LIFE IN
EXCESS OF THREE YEARS AND WERE THEREFORE SUBJECT TO DEPRECIATION UNDER
THE DECLINING BALANCE METHOD AUTHORIZED UNDER SEC. 167(B)(2).  SECTION
1.167(A)-1(B), ISSUED IN 1956 AND SUBSEQUENT TO SOME OF THE TAX YEARS
INVOLVED IN PETITIONER'S CLAIM, WAS APPLIED BY THE COMMISSIONER.  HE
RULED THAT THE SALVAGE VALUE OF THE TRUCKS AT THE TIME OF DISPOSITION
MUST BE ACCOUNTED FOR IN THE DEPRECIATION EQUATION.  PETITIONER
CONTENDED THAT THIS RESULTED IN A RETROACTIVE APPLICATION OF THE
REGULATION AND, IN ANY EVENT, IT WAS INVALID BECAUSE IT WAS NOT
AUTHORIZED UNDER THE 1954 CODE.  AFTER PETITIONER PAID THE ASSESSED TAX
AND WAS DENIED A REFUND, THIS CASE WAS FILED.  THE TRIAL COURT HELD IN
FAVOR OF PETITIONER, BUT THE COURT OF APPEALS REVERSED.  IT HELD THAT
THE REGULATION APPLIED AND WAS NOT RETROACTIVE BECAUSE IT WAS ONLY
DECLARATORY OF EXISTING LAW AND THAT SALVAGE VALUE MUST BE COMPUTED IN
THE DEPRECIATION EQUATION.  WE GRANTED CERTIORARI, 361 U.S. 811, AND
HEARD THE CASE AS A COMPANION TO MASSEY AND EVANS, SUPRA. WE AGREE WITH
THE RESULT REACHED BY THE COURT OF APPEALS. 

PETITIONER SUCCEEDED J. FRANK CONNOR, INC., BY MERGER IN JULY 1956;
THE TAXES ACCRUED AGAINST CONNOR DURING THE FISCAL YEARS 1954, 1955,
AND 1956.  CONNOR WAS ENGAGED IN THE BUSINESS OF RENTING AND LEASING
AUTOMOBILES AND TRUCKS, WITHOUT DRIVERS, DURING THE PERTINENT YEARS. 
IN THE PREPARATION OF ITS RETURNS FOR THE YEARS ENDING MARCH 31, 1954,
1955, AND 1956, CONNOR CLAIMED DEPRECIATION ON ITS AUTOMOBILES ON THE
BASIS OF A FOUR-YEAR USEFUL LIFE.  THE TAXES SO COMPUTED WERE PAID. 
SUBSEQUENTLY, AND AFTER MERGER, PETITIONER FILED CLAIMS FOR REFUND ON
ALL THREE YEARS.  THIS CLAIM WAS BASED ON AN ELECTION IN ACCORDANCE
WITH SEC. 1.167(C)-1(C) OF THE TREASURY REGULATIONS ISSUED UNDER THE
1954 CODE, RELATING TO THE DECLINING BALANCE METHOD OF DEPRECIATION. 
(FN2)  WE SEE NOTHING TO THE CONTENTION OF RETROACTIVE APPLICATION. 
THE PETITIONER CHOSE ITS OWN WEAPON, BEGAN THE STRUGGLE UNDER IT AND,
AT THIS LATE DATE, CANNOT BE ALLOWED TO ABANDON IT. 

AS TO THE SALVAGE ISSUE, THE PETITIONER CLAIMS THAT, UNDER THE METHOD
IT CHOSE, THE CONGRESS BUILT IN AN ARTIFICIAL SALVAGE VALUE, I.E., THE
AMOUNT REMAINING AFTER THE APPLICATION OF THE DEPRECIATION EQUATION. 
THE REGULATION, HOWEVER, SAYS THAT "IN NO EVENT SHALL AN ASSET  ...  BE
DEPRECIATED BELOW A REASONABLE SALVAGE VALUE."  THE ISSUE IS THE NARROW
ONE OF WHETHER THIS REGULATION IS VALID UNDER THE CONGRESSIONAL
AUTHORIZATION PROVIDING THAT, AS TO DEPRECIATION, THE TERM "REASONABLE
ALLOWANCE" SHALL INCLUDE AN ALLOWANCE "COMPUTED IN ACCORDANCE WITH
REGULATIONS PRESCRIBED BY THE SECRETARY OR HIS DELEGATE."  INTERNAL
REVENUE CODE OF 1954, SEC. 167(B).  WE THINK THAT IT IS. 

AS WE POINTED OUT IN THE COMPANION CASES, THE PURPOSE OF DEPRECIATION
ACCOUNTING IS TO ALLOCATE THE EXPENSE OF USING AN ASSET TO THE VARIOUS
PERIODS WHICH ARE BENEFITED BY THAT ASSET.  THE DECLINING BALANCE
METHOD PERMITS A RAPID RATE OF DEPRECIATION IN THE EARLY YEARS OF AN
ASSET'S LIFE.   THE CONGRESS HAS PERMITTED UNDER THIS METHOD AN
ALLOWANCE NOT TO EXCEED TWICE THE "STRAIGHT LINE" RATE, WHICH RATE WAS
APPROVED IN MASSEY AND EVANS, SUPRA.  IN APPLICATION, THE TAXPAYER
COMPUTES HIS STRAIGHT-LINE PERCENTAGE RATE AND THEN DOUBLES IT FOR THE
FIRST YEAR.  THIS DOUBLED RATE IS THEN APPLIED EACH SUBSEQUENT YEAR TO
THE DECLINING BALANCE.  BECAUSE OF A BELIEF THAT MOST ASSETS DO LOSE
MORE VALUE IN THE EARLIER YEARS, THIS METHOD IS JUSTIFIED AS AN ATTEMPT
TO LEVEL OFF THE TOTAL COSTS, INCLUDING MAINTENANCE EXPENSE, WHICH WILL
GENERALLY BE GREATER IN THE LATER YEARS.  THIS MEANS, EVEN UNDER THE
COMMISSIONER'S THEORY, THAT IF AN ASSET IS DISPOSED OF EARLY IN WHAT
WAS EXPECTED TO BE ITS USEFUL LIFE IN THE BUSINESS, THE DEPRECIATION
TAKEN MAY GREATLY EXCEED THE DIFFERENCE BETWEEN THE PURCHASE PRICE OF
THE ASSET AND ITS RETIREMENT PRICE; THIS IS A RESULT OF THE CONSCIOUS
CHOICE TO PERMIT RAPID DEPRECIATION.  BUT THIS, BY HYPOTHESIS, IS AN
UNUSUAL SITUATION.  THERE IS NOTHING INHERENT IN THE DECLINING BALANCE
SYSTEM WHICH REQUIRES US TO ASSUME THAT DEPRECIATION SHOULD BE ALLOWED
BEYOND WHAT REASONABLY APPEARS TO BE THE PRICE THAT WILL BE RECEIVED
WHEN THE ASSET IS RETIRED.  THIS WOULD PERMIT A KNOWING DISTORTION OF
THE EXPENSE OF EMPLOYING THE ASSET IN THE YEARS AFTER THAT POINT IS
REACHED.  IT THEREFORE APPEARS THAT THE INTERPRETATION CONTENDED FOR BY
THE TAXPAYER DOES NOT COMPORT WITH THE OVERRIDING STATUTORY REQUIREMENT
THAT THE DEPRECIATION DEDUCTION BE A REASONABLE ALLOWANCE.  SEC.
167(A). 

IN CHALLENGING THE REGULATION, THE TAXPAYER RELIES UPON THE FOLLOWING
EXCERPT FROM S. REP.  NO. 1622, 83D CONG., 2D SESS. 201: 

"THE SALVAGE VALUE IS NOT DEDUCTED FROM THE BASIS PRIOR TO APPLYING
THE RATE, SINCE UNDER THIS METHOD AT THE EXPIRATION OF USEFUL LIFE
THERE REMAINS AN UNDEPRECIATED BALANCE WHICH REPRESENTS SALVAGE
VALUE." 

THE REGULATION IS CONSISTENT WITH THE FIRST PART OF THE SENTENCE, FOR
SALVAGE VALUE IS NOT DEDUCTED FROM THE BASIS PRIOR TO THE APPLICATION
OF THE RATE.  BUT PETITIONER CONTENDS THAT THE REGULATION IS CONTRARY
TO THE SECOND PART OF THE SENTENCE WHICH APPEARS TO EQUATE SALVAGE
VALUE UNDER THE DECLINING BALANCE METHOD WITH THE MATHEMATICAL RESIDUE
WHICH MUST ALWAYS EXIST UNDER THE SYSTEM.  THIS, IT APPEARS TO US, IS
BUT RECOGNITION THAT UNDER THIS METHOD THERE IS SOME THEORETICAL
SALVAGE VALUE ALWAYS LEFT.  BUT IT ONLY "REPRESENTS SALVAGE VALUE" AND
WHEN TRUE SALVAGE VALUE EXCEEDS THIS AMOUNT, THE LATTER CONTROLS. 
MOREOVER, THE REGULATION CAN ONLY CARRY OUT THE FUNDAMENTAL CONCEPT OF
DEPRECIATION - THAT IT IS ALLOWABLE ONLY IN SUCH AMOUNT, TOGETHER WITH
SALVAGE VALUE, AS WILL EFFECTUATE THE RECOVERY OF COST OVER THE PERIOD
OF USEFUL LIFE.  FURTHERMORE, THE HOUSE REPORT SAID THAT, "THE CHANGES
MADE BY YOUR COMMITTEE'S BILL MERELY AFFECT THE TIMING AND NOT THE
ULTIMATE AMOUNT OF DEPRECIATION DEDUCTIONS WITH RESPECT TO A
PROPERTY."  (FN3)  SENATOR HUMPHREY STATED THAT UNDER THE DECLINING
BALANCE METHOD "THE TOTAL DEDUCTION OVER THE LIFE OF THE PROPERTY WILL
NOT BE INCREASED AND ONLY THE SAME TOTAL SUM WILL BE GIVEN AS A TAX
DEDUCTION  ...  ."   HEARINGS BEFORE THE SENATE COMMITTEE ON FINANCE,
83D CONG., 2D SESS., PT. 1, 95.  BOTH OF THESE STATEMENTS CLEARLY
SUPPORT THE REGULATION, SINCE, IF THE TAXPAYER PREVAILED, IT WOULD BE
ABLE TO TAKE A GREATER TOTAL AMOUNT OF DEPRECIATION UNDER THE DECLINING
BALANCE METHOD THAN UNDER THE STRAIGHT-LINE METHOD, EVEN IF SALVAGE
VALUE UNDER THE LATTER METHOD WERE LIMITED TO SCRAP VALUE. 

PETITIONER ALSO SEEMS TO RELY ON ADMINISTRATIVE INTERPRETATION.  IT
CITES A FOOTNOTE TO WHAT IS KNOWN AS FORM 2106, ISSUED BY THE
COMMISSIONER.  THIS FOOTNOTE TO ITEM NO. 41 READS, "SALVAGE VALUE IS
THE ESTIMATED RESALE OR TRADE-IN VALUE OF THE VEHICLE, DETERMINED AT
THE TIME OF PURCHASE.  IF DECLINING BALANCE METHOD OF DEPRECIATION IS
USED, DISREGARD SALVAGE VALUE IN COMPUTING DEPRECIATION."  PETITIONER
SAYS THIS IS A DIRECT INSTRUCTION TO "DISREGARD SALVAGE VALUE" ENTIRELY
SINCE IT IS BUILT INTO THE EQUATION.  HOWEVER, WE ARE NOT INCLINED TO
GIVE THE FOOTNOTE SUCH WEIGHTY CONSIDERATION.  THE FORM IS BUT A
WORKSHEET AND THE FOOTNOTE APPEARS TO REFER TO THE FACT THAT SALVAGE
VALUE IS DISREGARDED AT THE OUTSET OF THE APPLICATION OF THE
DEPRECIATION EQUATION, AS PROVIDED BY THE CODE.  WE LIKEWISE PLACE NO
WEIGHT IN THE REMAINING PERIPHERAL ARGUMENTS OF THE PETITIONER THAT
SALVAGE MUST BE IGNORED ALTOGETHER IN THE APPLICATION OF THE DECLINING
BALANCE METHOD. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE STATUTE PROVIDES: 

"(B)  ...  THE TERM 'REASONABLE ALLOWANCE'  ...  SHALL INCLUDE  ...
AN ALLOWANCE COMPUTED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE
SECRETARY OR HIS DELEGATE, UNDER ANY OF THE FOLLOWING METHODS: 

"(1)  THE STRAIGHT LINE METHOD: 

"(2)  THE DECLINING BALANCE METHOD, USING A RATE NOT EXCEEDING TWICE
THE RATE WHICH WOULD HAVE BEEN USED HAD THE ANNUAL ALLOWANCE BEEN
COMPUTED UNDER THE METHOD DESCRIBED IN PARAGRAPH (1),  ... ." 

THE APPLICABLE REGULATION PROVIDES: 

"SEC. 1.167(B)-2.  DECLINING BALANCE METHOD.  - (A) APPLICATION OF
METHOD.  - UNDER THE DECLINING BALANCE METHOD A UNIFORM RATE IS APPLIED
EACH YEAR TO THE UNRECOVERED COST OR OTHER BASIS OF THE PROPERTY.  THE
UNRECOVERED COST OR OTHER BASIS IS THE BASIS PROVIDED BY SECTION
167(F), ADJUSTED FOR DEPRECIATION PREVIOUSLY ALLOWED OR ALLOWABLE, AND
FOR ALL OTHER ADJUSTMENTS PROVIDED BY SECTION 1016 AND OTHER APPLICABLE
PROVISIONS OF LAW.  THE DECLINING BALANCE RATE MAY BE DETERMINED
WITHOUT RESORT TO FORMULA.  SUCH RATE DETERMINED UNDER SECTION
167(B)(2) SHALL NOT EXCEED TWICE THE APPROPRIATE STRAIGHT LINE RATE
COMPUTED WITHOUT ADJUSTMENT FOR SALVAGE.  WHILE SALVAGE IS NOT TAKEN
INTO ACCOUNT IN DETERMINING THE ANNUAL ALLOWANCES UNDER THIS METHOD, IN
NO EVENT SHALL AN ASSET (OR AN ACCOUNT) BE DEPRECIATED BELOW A
REASONABLE SALVAGE VALUE.  SEE SECTION 167(C) AND SEC. 1.167(C)-1 FOR
RESTRICTIONS ON THE USE OF THE DECLINING BALANCE METHOD." 

FN2  "SEC.  1.167(C)-1.  LIMITATIONS ON METHODS OF COMPUTING
DEPRECIATION UNDER SECTION 167(B)(2), (3), AND (4). 

     *         *         *         *       * 

"(C)  ELECTION TO USE METHODS.  - SUBJECT TO THE LIMITATIONS SET
FORTH IN PARAGRAPH (A) ABOVE, THE METHODS OF COMPUTING THE ALLOWANCE
FOR DEPRECIATION SPECIFIED IN SECTION 167(B)(2), (3), AND (4) MAY BE
ADOPTED WITHOUT PERMISSION AND NO FORMAL ELECTION IS REQUIRED.  IN
ORDER FOR A TAXPAYER TO ELECT TO USE THESE METHODS FOR ANY PROPERTY
DESCRIBED IN PARAGRAPH (A) ABOVE, HE NEED ONLY COMPUTE DEPRECIATION
THEREON UNDER ANY OF THESE METHODS FOR ANY TAXABLE YEAR ENDING AFTER
DECEMBER 31, 1953, IN WHICH THE PROPERTY MAY FIRST BE DEPRECIATED BY
HIM.  THE ELECTION WITH RESPECT TO ANY PROPERTY SHALL NOT BE BINDING
WITH RESPECT TO ACQUISITIONS OF SIMILAR PROPERTY IN THE SAME YEAR OR
SUBSEQUENT YEAR WHICH ARE SET UP IN SEPARATE ACCOUNTS.  IF A TAXPAYER
HAS FILED HIS RETURN FOR A TAXABLE YEAR ENDING AFTER DECEMBER 31, 1953,
FOR WHICH THE RETURN IS REQUIRED TO BE FILED ON OR BEFORE SEPTEMBER 15,
1956, AN ELECTION TO COMPUTE THE DEPRECIATION ALLOWANCE UNDER ANY OF
THE METHODS SPECIFIED IN SECTION 167(B) OR A CHANGE IN SUCH AN ELECTION
MAY BE MADE IN AN AMENDED RETURN OR CLAIM FOR REFUND FILED ON OR BEFORE
SEPTEMBER 15, 1956." 

FN3  H.R. REP. NO. 1337, 83D CONG., 2D SESS. 25. 

SENATOR MILLIKIN MADE A SIMILAR STATEMENT ON THE FLOOR OF THE SENATE,
BUT PRECEDED IT WITH THE OBSERVATION THAT DEPRECIATION CANNOT EXCEED
THE COST OF THE ASSET.  THE WAY IN WHICH THE SENATOR PRESENTED THE
MATTER SUGGESTS THAT HE DID NOT MEAN THAT TOTAL DEPRECIATION TAKEN
COULD NOT BE GREATER UNDER THE DECLINING BALANCE METHOD OF DEPRECIATION
THAN UNDER THE OTHER ACCEPTED METHODS.  HOWEVER, NO SUCH QUALIFICATION
LIMITS THE IMPACT OF THE STATEMENT IN THE HOUSE REPORT. 

(FOR OPINION OF MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE WHITTAKER
AND MR. JUSTICE STEWART, SEE ANTE, P. 107.) 

(FOR VIEWS OF MR. JUSTICE DOUGLAS, SEE ANTE, P. 121.) 
..END :












COMMISSIONER OF INTERNAL REVENUE V. GILLETTE MOTOR TRANSPORT, INC. 364
U.S. 130 


NO. 359.  ARGUED APRIL 21, 1960 - DECIDED JUNE 27, 1960 - 265 F.2D 648,
REVERSED. 


RESPONDENT TRUCKING COMPANY CEASED OPERATIONS DURING WORLD WAR II
BECAUSE OF A STRIKE, AND THE DIRECTOR OF THE OFFICE OF DEFENSE
TRANSPORTATION TOOK POSSESSION AND ASSUMED CONTROL OF ITS BUSINESS BUT
LEFT TITLE TO ITS PROPERTIES IN RESPONDENT, WHICH RESUMED NORMAL
OPERATIONS AND FUNCTIONED UNDER THE CONTROL OF A FEDERAL MANAGER UNTIL
TERMINATION OF POSSESSION AND CONTROL BY THE GOVERNMENT.  THE MOTOR
CARRIER CLAIMS COMMISSION DETERMINED THAT, BY ASSUMING POSSESSION AND
CONTROL OF RESPONDENT'S FACILITIES, THE GOVERNMENT HAD DEPRIVED IT OF
THE RIGHT TO DETERMINE FREELY WHAT USE WAS TO BE MADE OF THEM, AND IT
AWARDED TO RESPONDENT AS COMPENSATION A SUM REPRESENTING THE FAIR
RENTAL VALUE OF ITS FACILITIES DURING THE PERIOD OF GOVERNMENT
CONTROL.  HELD:  UNDER THE INTERNAL REVENUE CODE OF 1939, THIS AWARD
CONSTITUTED ORDINARY INCOME AND NOT A CAPITAL GAIN RESULTING FROM AN
"INVOLUNTARY CONVERSION" OF RESPONDENT'S CAPITAL ASSETS CONSISTING OF
REAL OR DEPRECIABLE PERSONAL PROPERTY USED IN ITS TRADE OR BUSINESS,
WITHIN THE MEANING OF SEC. 117(J).  PP. 130-136. 

COMMISSIONER OF INTERNAL REVENUE V. GILLETTE MOTOR TRANSPORT, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER A SUM RECEIVED BY RESPONDENT
FROM THE UNITED STATES AS COMPENSATION FOR THE TEMPORARY TAKING BY THE
GOVERNMENT OF ITS BUSINESS FACILITIES DURING WORLD WAR II REPRESENTED
ORDINARY INCOME OR A CAPITAL GAIN.  THE ISSUE INVOLVES THE CONSTRUCTION
AND APPLICATION OF SEC. 117(J) OF THE INTERNAL REVENUE CODE OF 1939. 

IN 1944, RESPONDENT WAS A COMMON CARRIER OF COMMODITIES BY MOTOR
VEHICLE.  ON AUGUST 4, 1944, RESPONDENT'S DRIVERS STRUCK, AND IT
COMPLETELY CEASED TO OPERATE.  SHORTLY THEREAFTER, BECAUSE OF THE NEED
FOR RESPONDENT'S FACILITIES IN THE TRANSPORTATION OF WAR MATERIEL, THE
PRESIDENT ORDERED THE DIRECTOR OF THE OFFICE OF DEFENSE TRANSPORTATION
TO "TAKE POSSESSION AND ASSUME CONTROL OF" THEM.  THE DIRECTOR ASSUMED
POSSESSION AND CONTROL AS OF AUGUST 12, AND APPOINTED A FEDERAL
MANAGER, WHO ORDERED RESPONDENT TO RESUME NORMAL OPERATIONS.  THE
FEDERAL MANAGER ALSO ANNOUNCED HIS INTENTION TO LEAVE TITLE TO THE
PROPERTIES IN RESPONDENT AND TO INTERFERE AS LITTLE AS POSSIBLE IN THE
MANAGEMENT OF THEM.  SUBJECT TO CERTAIN ORDERS GIVEN BY THE FEDERAL
MANAGER FROM TIME TO TIME, RESPONDENT RESUMED NORMAL OPERATIONS AND
CONTINUED SO TO FUNCTION UNTIL THE TERMINATION OF ALL POSSESSION AND
CONTROL BY THE GOVERNMENT ON JUNE 16, 1945. 

PURSUANT TO AN ACT OF CONGRESS CREATING A MOTOR CARRIER CLAIMS
COMMISSION, 62 STAT. 1222, RESPONDENT PRESENTED ITS CLAIM FOR JUST
COMPENSATION.  THE GOVERNMENT CONTENDED THAT THERE HAD BEEN NO "TAKING"
OF RESPONDENT'S PROPERTY BUT ONLY A REGULATION OF IT.  THE COMMISSION,
HOWEVER, DETERMINED THAT BY ASSUMING ACTUAL POSSESSION AND CONTROL OF
RESPONDENT'S FACILITIES, THE UNITED STATES HAD DEPRIVED RESPONDENT OF
THE VALUABLE RIGHT TO DETERMINE FREELY WHAT USE WAS TO BE MADE OF
THEM.  IN ASCERTAINING THE FAIR MARKET VALUE OF THAT RIGHT, THE
COMMISSION FOUND THAT ONE USE TO WHICH RESPONDENT'S FACILITIES COULD
HAVE BEEN PUT WAS TO RENT THEM OUT, AND THAT THEREFORE THEIR RENTAL
VALUE REPRESENTED A FAIR MEASURE OF RESPONDENT'S PECUNIARY LOSS.  THE
COMMISSION NOTED THAT IN OTHER CASES OF TEMPORARY TAKINGS, IT HAS
TYPICALLY BEEN HELD THAT THE MARKET VALUE OF WHAT IS TAKEN IS THE SUM
WHICH WOULD BE ARRIVED AT BY A WILLING LESSOR AND A WILLING LESSEE. 
ACCORDINGLY, IT AWARDED, AND THE RESPONDENT RECEIVED IN 1952, THE SUM
OF $122,926.21, REPRESENTING THE FAIR RENTAL VALUE OF ITS FACILITIES
FROM AUGUST 12, 1944, UNTIL JUNE 16, 1945, PLUS $34,917.78,
REPRESENTING INTEREST ON THE FORMER SUM, OR A TOTAL OF $157,843.99. 

THE COMMISSIONER OF INTERNAL REVENUE ASSERTED THAT THE TOTAL
COMPENSATION AWARD REPRESENTED ORDINARY INCOME TO RESPONDENT IN 1952. 
RESPONDENT CONTENDED THAT IT CONSTITUTED AN AMOUNT RECEIVED UPON AN
"INVOLUNTARY CONVERSION" OF PROPERTY USED IN ITS TRADE OR BUSINESS AND
WAS THEREFORE TAXABLE AS LONG-TERM CAPITAL GAIN PURSUANT TO SEC. 117(J)
OF THE INTERNAL REVENUE CODE OF 1939.*  THE TAX COURT, ADOPTING ITS
OPINION IN MIDWEST MOTOR EXPRESS, INC., 27 T.C. 167, AFF'D, 251 F.2D
405, (C.A. 8TH CIR.), WHICH INVOLVED SUBSTANTIALLY IDENTICAL FACTS,
HELD THAT THE AWARD REPRESENTED ORDINARY INCOME.  THE COURT OF APPEALS,
ONE JUDGE DISSENTING, IN THIS INSTANCE REVERSED.  265 F.2D 648.  WE
GRANTED CERTIORARI BECAUSE OF THE CONFLICT BETWEEN THE DECISIONS OF THE
TWO CIRCUITS.  361 U.S. 881. 

*SECTION 117(J) PROVIDES AS FOLLOWS: 

"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 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, PLUS THE
RECOGNIZED GAINS FROM THE COMPULSORY OR INVOLUNTARY CONVERSION (AS A
RESULT OF DESTRUCTION IN WHOLE OR IN PART, THEFT OR SEIZURE, OR AN
EXERCISE OF THE POWER OF REQUISITION OR CONDEMNATION OR THE THREAT OR
IMMINENCE THEREOF) OF PROPERTY USED IN THE TRADE OR BUSINESS AND
CAPITAL ASSETS HELD FOR MORE THAN 6 MONTHS INTO OTHER PROPERTY OR
MONEY, 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  ...  ." 

RESPONDENT STRESSES THAT THE MOTOR CARRIER CLAIMS COMMISSION,
REJECTING THE GOVERNMENT'S CONTENTION THAT ONLY A REGULATION, RATHER
THAN A TAKING, OF ITS FACILITIES HAD OCCURRED, FOUND THAT RESPONDENT
HAD BEEN DEPRIVED OF PROPERTY, AND AWARDED COMPENSATION THEREFOR.  THAT
IS INDEED TRUE.  BUT THE FACT THAT SOMETHING TAKEN BY THE GOVERNMENT IS
PROPERTY COMPENSABLE UNDER THE FIFTH AMENDMENT DOES NOT ANSWER THE
ENTIRELY DIFFERENT QUESTION WHETHER THAT THING COMES WITHIN THE CAPITAL
GAINS PROVISIONS OF THE INTERNAL REVENUE CODE.  RATHER, IT IS NECESSARY
TO DETERMINE THE PRECISE NATURE OF THE PROPERTY TAKEN.  HERE THE
COMMISSION DETERMINED THAT WHAT RESPONDENT HAD BEEN DEPRIVED OF, AND
WHAT THE GOVERNMENT WAS OBLIGATED TO PAY FOR, WAS THE RIGHT TO
DETERMINE FREELY WHAT USE TO MAKE OF ITS TRANSPORTATION FACILITIES. 
THE MEASURE OF COMPENSATION ADOPTED REFLECTED THE NATURE OF THAT
PROPERTY RIGHT.  GIVEN THESE FACTS, WE TURN TO THE STATUTE. 

THE STATUTE'S COMPREHENSIVE TREATMENT OF CAPITAL GAINS AND LOSSES. 
LONG-ESTABLISHED PRINCIPLES GOVERN THE APPLICATION OF THE MORE
FAVORABLE TAX RATES TO LONG-TERM CAPITAL GAINS:  (1) THERE MUST BE
FIRST, A "CAPITAL ASSET," AND SECOND, A "SALE OR EXCHANGE" OF THAT
ASSET (SEC. 117(A)); (2) "CAPITAL ASSET" IS DEFINED AS "PROPERTY HELD
BY THE TAXPAYER," WITH CERTAIN EXCEPTIONS NOT HERE RELEVANT (SEC.
117(A)(1)); AND (3) FOR PURPOSES OF CALCULATING GAIN, THE COST OR OTHER
BASIS OF THE PROPERTY (SEC. 113(B)) MUST BE SUBTRACTED FROM THE AMOUNT
REALIZED ON THE SALE OR EXCHANGE (SEC. 111(A)). 

IN THE NATURE OF A CAPITAL ASSET.  IT ACCOMPLISHES ONLY TWO MAIN
OBJECTIVES.  FIRST, IT EXTENDS CAPITAL-GAINS TREATMENT TO REAL AND
DEPRECIABLE PERSONAL PROPERTY USED IN THE TRADE OR BUSINESS, THE TYPE
OF PROPERTY INVOLVED IN THIS CASE.  SECOND, IT ACCORDS SUCH TREATMENT
TO INVOLUNTARY CONVERSIONS OF BOTH CAPITAL ASSETS, STRICTLY DEFINED,
AND PROPERTY USED IN THE TRADE OR BUSINESS.  SINCE THE NET EFFECT OF
THE FIRST CHANGE IS MERELY TO REMOVE ONE OF THE EXCLUSIONS MADE TO THE
DEFINITION OF CAPITAL ASSETS IN SEC. 117(A)(1), IT SEEMS EVIDENT THAT
"PROPERTY USED IN THE TRADE OR BUSINESS," TO BE ELIGIBLE FOR CAPITAL
GAINS TREATMENT, MUST SATISFY THE SAME GENERAL CRITERIA AS GOVERN THE
DEFINITION OF CAPITAL ASSETS.  THE SECOND CHANGE WAS APPARENTLY
REQUIRED BY THE FACT THAT THIS COURT HAD GIVEN A NARROW CONSTRUCTION TO
THE TERM "SALE OR EXCHANGE."  SEE HELVERING V. FLACCUS LEATHER CO., 313
U.S. 247.  BUT THAT CHANGE SIMILARLY HAD NO EFFECT ON THE BASIC NOTION
OF WHAT CONSTITUTES A CAPITAL ASSET. 

WHILE A CAPITAL ASSET IS DEFINED IN SEC. 117(A)(1) AS "PROPERTY HELD
BY THE TAXPAYER," IT IS EVIDENT THAT NOT EVERYTHING WHICH CAN BE CALLED
PROPERTY IN THE ORDINARY SENSE AND WHICH IS OUTSIDE THE STATUTORY
EXCLUSIONS QUALIFIES AS A CAPITAL ASSET.  THIS COURT HAS LONG HELD THAT
THE TERM "CAPITAL ASSET" IS TO BE CONSTRUED NARROWLY IN ACCORDANCE WITH
THE PURPOSE OF CONGRESS TO AFFORD CAPITAL-GAINS TREATMENT ONLY IN
SITUATIONS TYPICALLY INVOLVING THE REALIZATION OF APPRECIATION IN VALUE
ACCRUED OVER A SUBSTANTIAL PERIOD OF TIME, AND THUS TO AMELIORATE THE
HARDSHIP OF TAXATION OF THE ENTIRE GAIN IN ONE YEAR.  BURNET V. HARMEL,
287 U.S. 103, 106.  THUS THE COURT HAS HELD THAT AN UNEXPIRED LEASE,
HORT V. COMMISSIONER, 313 U.S. 28, CORN FUTURES, CORN PRODUCTS CO. V.
COMMISSIONER, 350 U.S. 46, AND OIL PAYMENT RIGHTS, COMMISSIONER V. P.G.
LAKE, INC., 356 U.S. 260, ARE NOT CAPITAL ASSETS EVEN THOUGH THEY ARE
CONCEDEDLY "PROPERTY" INTERESTS IN THE ORDINARY SENSE.  AND SEE SURREY,
DEFINITIONAL PROBLEMS IN CAPITAL GAINS TAXATION, 69 HARV. L. REV. 985,
987-989 AND NOTE 7. 

IN THE PRESENT CASE, RESPONDENT'S RIGHT TO USE ITS TRANSPORTATION
FACILITIES WAS HELD TO BE A VALUABLE PROPERTY RIGHT COMPENSABLE UNDER
THE REQUIREMENTS OF THE FIFTH AMENDMENT.  HOWEVER, THAT RIGHT WAS NOT A
CAPITAL ASSET WITHIN THE MEANING OF SECS. 117(A)(1) AND 117(J).  TO BE
SURE, RESPONDENT'S FACILITIES WERE THEMSELVES PROPERTY EMBRACEABLE AS
CAPITAL ASSETS UNDER SEC. 117(J).  HAD THE GOVERNMENT TAKEN A FEE IN
THOSE FACILITIES, OR DAMAGED THEM PHYSICALLY BEYOND THE ORDINARY WEAR
AND TEAR INCIDENT TO NORMAL USE, THE RESULTING COMPENSATION WOULD NO
DOUBT HAVE BEEN TREATED AS GAIN FROM THE INVOLUNTARY CONVERSION OF
CAPITAL ASSETS.  SEE, E.G., WAGGONER, 15 T.C. 496; HENSHAW, 23 T.C.
176.  BUT HERE THE GOVERNMENT TOOK ONLY THE RIGHT TO DETERMINE THE USE
TO WHICH THOSE FACILITIES WERE TO BE PUT. 

THAT RIGHT IS NOT SOMETHING IN WHICH RESPONDENT HAD ANY INVESTMENT,
SEPARATE AND APART FROM ITS INVESTMENT IN THE PHYSICAL ASSETS
THEMSELVES.  RESPONDENT SUGGESTS NO METHOD BY WHICH A COST BASIS COULD
BE ASSIGNED TO THE RIGHT; YET IT IS NECESSARY, IN DETERMINING THE
AMOUNT OF GAIN REALIZED FOR PURPOSES OF SEC. 117, TO DEDUCT THE BASIS
OF THE PROPERTY SOLD, EXCHANGED, OR INVOLUNTARILY CONVERTED FROM THE
AMOUNT RECEIVED.  SEC. 111(A).  FURTHER, THE RIGHT IS MANIFESTLY NOT OF
THE TYPE WHICH GIVES RISE TO THE HARDSHIP OF THE REALIZATION IN ONE
YEAR OF AN ADVANCE IN VALUE OVER COST BUILT UP IN SEVERAL YEARS, WHICH
IS WHAT CONGRESS SOUGHT TO AMELIORATE BY THE CAPITAL-GAINS PROVISIONS. 
SEE CASES CITED, ANTE, P. 134.  IN SHORT, THE RIGHT TO USE IS NOT A
CAPITAL ASSET, BUT IS SIMPLY AN INCIDENT OF THE UNDERLYING PHYSICAL
PROPERTY, THE RECOMPENSE FOR WHICH IS COMMONLY REGARDED AS RENT.  THAT
IS PRECISELY THE SITUATION HERE, AND THE FACT THAT THE TRANSACTION WAS
INVOLUNTARY ON RESPONDENT'S PART DOES NOT CHANGE THE NATURE OF THE
CASE. 

RESPONDENT LAYS STRESS ON THE USE OF THE TERMS "SEIZURE" AND
"REQUISITION" IN SEC. 117(J).  MORE SPECIFICALLY, THE SECTION REFERS TO
THE "INVOLUNTARY CONVERSION (AS A RESULT OF DESTRUCTION IN WHOLE OR IN
PART, THEFT OR SEIZURE, OR AN EXERCISE OF THE POWER OF REQUISITION OR
CONDEMNATION OR THE THREAT OR IMMINENCE THEREOF) OF PROPERTY USED IN
THE TRADE OR BUSINESS AND CAPITAL ASSETS  ...  ."  IT IS CONTENDED THAT
THE GOVERNMENT'S ACTION IN THE PRESENT CASE IS PERHAPS THE MOST TYPICAL
EXAMPLE OF A SEIZURE OR REQUISITION, AND THAT, THEREFORE, CONGRESS MUST
HAVE INTENDED TO TREAT IT AS A CAPITAL TRANSACTION.  THIS ARGUMENT,
HOWEVER, OVERLOOKS THE FACT THAT THE SEIZURE OR REQUISITION MUST BE "OF
PROPERTY USED IN THE TRADE OR BUSINESS OR CAPITAL ASSETS."  WE HAVE
ALREADY SHOWN THAT SEC. 117(J) DOES NOT CHANGE THE LONG-STANDING
MEANING OF THOSE TERMS AND THAT THE PROPERTY TAKEN BY THE GOVERNMENT IN
THE PRESENT CASE DOES NOT COME WITHIN THEM.  THE WORDS "SEIZURE" AND
"REQUISITION" ARE NOT THEREBY DEPRIVED OF EFFECT, SINCE THEY EQUALLY
COVER INSTANCES IN WHICH THE GOVERNMENT TAKES A FEE OR DAMAGES OR
OTHERWISE IMPAIRS THE VALUE OF PHYSICAL PROPERTY. 

WE CONCLUDE THAT THE AMOUNT PAID TO RESPONDENT AS THE FAIR RENTAL
VALUE OF ITS FACILITIES FROM AUGUST 12, 1944, TO JUNE 16, 1945,
REPRESENTED ORDINARY INCOME TO IT.  A FORTIORI, THE INTEREST ON THAT
SUM IS ORDINARY INCOME.  KIESELBACH V. COMMISSIONER, 317 U.S. 399. 
REVERSED. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :




















SUNRAY MID-CONTINENT OIL CO. V. FEDERAL POWER COMMISSION 364 U.S. 137 


NO. 335.  ARGUED APRIL 26-27, 1960 - DECIDED JUNE 27, 1960 - 267 F.2D
471, AFFIRMED. 


AN INDEPENDENT PRODUCER OF NATURAL GAS CONTRACTED TO SELL TO AN
INTERSTATE PIPELINE COMPANY FROM SPECIFIED RESERVES A SPECIFIED AMOUNT
OF GAS EACH YEAR AT SPECIFIED PRICES FOR A TERM OF 20 YEARS, AND IT
APPLIED TO THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT FOR A
CERTIFICATE OF CONVENIENCE AND NECESSITY AUTHORIZING IT TO MAKE SUCH
SALES FOR A TERM OF 20 YEARS ONLY.  INSTEAD, THE COMMISSION TENDERED A
CERTIFICATE WITHOUT ANY TIME LIMITATION.  THE PRODUCER ACCEPTED IT,
RESERVING THE RIGHT TO OBJECT, ON REVIEW, TO THE UNLIMITED NATURE OF
THE CERTIFICATE.  HELD:  THE COMMISSION DID NOT EXCEED ITS AUTHORITY IN
ISSUING A CERTIFICATE UNLIMITED AS TO TIME.  PP. 138-158. 

(A) TO HOLD THAT THE COMMISSION MUST PLACE A TIME LIMITATION UPON
SUCH A CERTIFICATE (1) WOULD GREATLY IMPAIR ITS CONTROL UNDER SEC. 7(B)
OVER THE ABANDONMENT BY NATURAL GAS COMPANIES OF THEIR FACILITIES AND
SERVICES SUBJECT TO THE JURISDICTION OF THE COMMISSION, AND (2) WOULD
MAKE UNAVAILABLE THE PROCEDURAL SAFEGUARDS UNDER SECS. 4(D) AND 4(E)
WHICH ARE APPLICABLE TO RATE CHANGES.  PP. 141-147. 

(B)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE LANGUAGE OF SEC.
7(E) AUTHORIZING THE COMMISSION TO ISSUE A CERTIFICATE "AUTHORIZING THE
WHOLE OR ANY PART OF THE OPERATION, SALE, SERVICE, CONSTRUCTION,
EXTENSION, OR ACQUISITION COVERED BY THE APPLICATION."  PP. 147-151. 

(C)  THE AUTHORITY OF THE COMMISSION TO ISSUE A CERTIFICATE UNLIMITED
AS TO TIME SHOULD NOT BE DENIED ON THE THEORY THAT IT COULD ACCOMPLISH
THE SAME RESULT INDIRECTLY, EITHER (1) BY DENYING ALL APPLICATIONS FOR
LIMITED CERTIFICATES, OR (2) BY PRESCRIBING CONDITIONS UNDER SEC. 7(E)
THAT THE CERTIFICATES BE PERMANENT.  PP. 151-152. 

(D)  THE CONCLUSION HERE REACHED IS SUPPORTED BY THE CONSISTENT
ADMINISTRATIVE PRACTICE OF THE COMMISSION IN MAKING A CLEAR DISTINCTION
BETWEEN THE UNDERLYING "SERVICE" TO THE PUBLIC AND THE CONTRACTUAL
MEANS BY WHICH IT IS IMPLEMENTED.  PP. 152-154. 

(E)  THE CONCLUSION HERE REACHED IS NOT INCONSISTENT WITH THAT
REACHED IN UNITED GAS PIPE LINE CO. V. MOBILE GAS SERVICE CORP., 350
U.S. 332.  PP. 154-156. 

(F)  AN INITIAL APPLICATION OF AN INDEPENDENT PRODUCER TO SELL
NATURAL GAS IN INTERSTATE COMMERCE LEADS TO A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY UNDER WHICH THE COMMISSION CONTROLS THE BASIS
ON WHICH THE GAS MAY BE INITIALLY DEDICATED TO INTERSTATE USE, ATLANTIC
REFINING CO. V. PUBLIC SERVICE COMMISSION, 360 U.S. 378; AND ONCE SO
DEDICATED THERE CAN BE NO WITHDRAWAL OF THAT SUPPLY FROM CONTINUED
INTERSTATE MOVEMENT WITHOUT COMMISSION APPROVAL.  P. 156. 

(G)  OTHER OBJECTIONS TO THE COMMISSION'S ORDER EITHER ARE NOT
PROPERLY BEFORE THIS COURT OR ARE WITHOUT MERIT.  PP. 156-158. 

SUNRAY MID-CONTINENT OIL CO. V. FEDERAL POWER COMMISSION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN IMPORTANT QUESTION UNDER THE NATURAL GAS ACT. 
(FN1)  THIS QUESTION, CENTRAL TO THE CASE, IS: WHEN A COMPANY,
PROPOSING TO MAKE, UNDER CONTRACT, JURISDICTIONAL SALES (FN2) OF
NATURAL GAS IN INTERSTATE COMMERCE, APPLIES FOR A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY AS REQUIRED BY THE ACT, AND REQUESTS THAT THE
CERTIFICATE BE LIMITED IN TIME TO THE DURATION OF A CONTRACT FOR THE
SALE OF GAS WHICH IT HAS ENTERED, DOES THE FEDERAL POWER COMMISSION
HAVE THE AUTHORITY TO TENDER IT, INSTEAD, A CERTIFICATE WITHOUT TIME
LIMITATION? 

PETITIONER, SUNRAY MID-CONTINENT OIL COMPANY, AN INDEPENDENT PRODUCER
OF NATURAL GAS, ENTERED INTO A CONTRACT WITH UNITED GAS PIPELINE
COMPANY, AN INTERSTATE TRANSMISSION COMPANY.  THE CONTRACT COVERED
CONSIDERABLE ACREAGE OWNED BY, OR UNDER MINERAL LEASE TO, PETITIONER IN
VERMILION AND LAFAYETTE PARISHES, LOUISIANA, IN AND ABOUT WHAT IS
CALLED THE RIDGE FIELD.  UNDER IT, UNITED AGREED TO TAKE AN ANNUAL
AMOUNT OF GAS FROM PETITIONER EQUIVALENT TO 4.5625 PER CENT OF
PETITIONER'S GAS RESERVES IN THE AREA COVERED BY THE AGREEMENT; (FN3)
AND UNITED HAD THE RIGHT, IN ADDITION, TO CALL FOR ANY AMOUNT UP TO 150
PER CENT OF THE AMOUNT IT HAD ANNUALLY AGREED TO TAKE.  THE TERM OF THE
AGREEMENT WAS 20 YEARS.  THE INITIAL PRICE PROVIDED WAS 20.5 CENTS PER
THOUSAND CUBIC FEET (MCF.); AND THE PRICE WAS TO INCREASE ONE CENT PER
MCF.  EVERY FIVE YEARS.  (FN4) 

COMPANY  ...  SHALL ENGAGE IN THE TRANSPORTATION OR SALE OF NATURAL
GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION  ... UNLESS THERE IS
IN FORCE WITH RESPECT TO SUCH NATURAL-GAS COMPANY A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE COMMISSION AUTHORIZING
SUCH ACTS OR OPERATIONS."  THIS COURT HELD IN PHILLIPS PETROLEUM CO. V.
WISCONSIN, 347 U.S. 672, THAT BY VIRTUE OF SEC. 1(B) OF THE ACT, SALES
OF GAS BY AN INDEPENDENT PRODUCER TO A PIPELINE "IN INTERSTATE COMMERCE
...  FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION" CAME WITHIN THE SCOPE
OF THE ACT.  (FN5)  PETITIONER HAD NO CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY AUTHORIZING SALES IN INTERSTATE COMMERCE FROM THE FIELD
IN QUESTION.  ACCORDINGLY, IN ORDER TO CARRY OUT ITS CONTRACT WITH
UNITED, IT WAS NECESSARY FOR PETITIONER TO APPLY FOR A CERTIFICATE FROM
THE COMMISSION, WHICH IT DID. 

PETITIONER'S APPLICATION FOR THE CERTIFICATE CONTAINED THE REQUEST
THAT THE CERTIFICATE SOUGHT "PROVIDE FOR ITS OWN EXPIRATION ON THE
EXPIRATION OF THE  ...  CONTRACT TERM SO AS TO AUTHORIZE APPLICANT TO
CEASE THE DELIVERY AND SALE OF GAS THEREUNDER AT THAT TIME."  THE
COMMISSION, UPHOLDING ITS EXAMINER'S RECOMMENDATIONS, REJECTED THE
CONTENTIONS OF PETITIONER THAT THERE SHOULD BE ISSUED TO COVER THE
CONTRACT ONLY A CERTIFICATE LIMITED TO THE TERM OF THE CONTRACT ITSELF,
AND TENDERED IT A CERTIFICATE WITHOUT TIME LIMITATION.  (FN6)  19
F.P.C.  618.  PETITIONER APPLIED FOR A REHEARING OF THE COMMISSION'S
ORDER.  BASIC TO THIS APPLICATION WAS THE CONTENTION THAT "THE
COMMISSION IS WITHOUT AUTHORITY TO ISSUE A CERTIFICATE TO AN APPLICANT
AUTHORIZING MORE THAN THE WHOLE OR SOME PART OF THE SALE COVERED BY THE
APPLICATION FOR CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY  ...
."  THE COMMISSION DENIED THE REHEARING APPLICATION.  19 F.P.C. 1107. 

PETITIONER DID NOT AVAIL ITSELF OF ITS UNDOUBTED RIGHT TO STAND FIRM
ON ITS OWN APPLICATION, AND REJECT THE PROFFERED CERTIFICATE.  CF.
ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N, 360 U.S. 378, 387-388. 
(FN7)  INSTEAD IT ACCEPTED THE COMMISSION'S CERTIFICATE AND COMMENCED
DELIVERIES OF GAS UNDER IT, RESERVING ITS RIGHT TO OBJECT, ON REVIEW,
TO THE CERTIFICATE'S UNLIMITED NATURE.  THE COURT OF APPEALS FOR THE
TENTH CIRCUIT REJECTED PETITIONER'S OBJECTIONS, AND AFFIRMED THE ORDER
OF THE COMMISSION, 267 F.2D 471.  IN VIEW OF THE IMPORTANCE OF THE
CENTRAL QUESTION PRESENTED, TO WHICH WE HAVE ALREADY ALLUDED, WE
GRANTED CERTIORARI.  361 U.S. 880.  WE ARE IN AGREEMENT WITH THE COURT
OF APPEALS, AND AFFIRM ITS JUDGMENT. 

THE PRACTICAL REASONS BEHIND PETITIONER'S SUPERFICIALLY SELF
ABNEGATING DESIRE TO HAVE A LIMITED RATHER THAN AN UNLIMITED
AUTHORIZATION FROM THE COMMISSION ARE OBVIOUS FROM A STUDY OF THE
NATURAL GAS ACT'S PROVISIONS.  OBVIOUS ALSO IS THE DAMAGING EFFECT THAT
ACCEPTANCE OF PETITIONER'S CENTRAL CONTENTION WOULD HAVE UPON THE
POLICIES OF THE ACT. 

                                          I. 

NATURAL-GAS COMPANIES OF THEIR FACILITIES AND SERVICES SUBJECT TO THE
JURISDICTION OF THE COMMISSION.  (FN8)  THE SECTION FOLLOWS A COMMON
PATTERN IN FEDERAL UTILITY REGULATION (FN9) IN FORBIDDING SUCH
ABANDONMENT "WITHOUT THE PERMISSION AND APPROVAL OF THE COMMISSION
FIRST HAD AND OBTAINED."  THE COMMISSION IS TO EXTEND PERMISSION FOR AN
ABANDONMENT OF SERVICE ONLY ON A FINDING "THAT THE AVAILABLE SUPPLY OF
NATURAL GAS IS DEPLETED TO THE EXTENT THAT THE CONTINUANCE OF SERVICE
IS UNWARRANTED, OR THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE OR
NECESSITY PERMIT SUCH ABANDONMENT."  THE PROPOSAL OF PETITIONER WAS FOR
A CERTIFICATE THAT WOULD BY ITS OWN TERMS EXPIRE WHEN THE CONTRACT WITH
UNITED EXPIRES.  THUS AT THE END OF THE PERIOD, PETITIONER WOULD BECOME
FREE TO CEASE SUPPLYING GAS TO THE INTERSTATE MARKET FROM THE RIDGE
AREA WITHOUT FURTHER LEAVE OF THE COMMISSION, AND WITHOUT THERE HAVING
BEEN MADE THE FINDINGS THAT CONGRESS DEEMED NECESSARY. 

IF PETITIONER'S CONTENTIONS, AS TO THE WANT OF AUTHORITY IN THE
COMMISSION TO GRANT A PERMANENT CERTIFICATE WHERE ONE OF LIMITED
DURATION HAS BEEN SOUGHT FOR, WERE TO BE SUSTAINED, THE WAY WOULD BE
CLEAR FOR EVERY INDEPENDENT PRODUCER OF NATURAL GAS TO SEEK
CERTIFICATION ONLY FOR THE LIMITED PERIOD OF ITS INITIAL CONTRACT WITH
THE TRANSMISSION COMPANY, AND THUS AUTOMATICALLY BE FREE AT A FUTURE
DATE, UNTRAMMELED BY COMMISSION REGULATION, TO REASSESS WHETHER IT
DESIRED TO CONTINUE SERVING THE INTERSTATE MARKET.  AND CONTRACTS - AS
DID THE 1947 CONTRACT IN THE COMPANION CASE TO THE ONE AT BAR, SUN OIL
CO. V. FEDERAL POWER COMM'N, POST, P. 170 - MIGHT PROVIDE FOR
TERMINATION IN THE EVENT OF A RATE REDUCTION BY THE COMMISSION. 
PETITIONER'S THEORY, BY TYING THE TERM OF THE CERTIFICATE TO THE
CONTRACT, WOULD MEAN THAT SUCH A REDUCTION OF RATES WOULD UNDER THOSE
CIRCUMSTANCES ENABLE THE PRODUCER TO CEASE SUPPLYING GAS, WITHOUT
OBLIGATION TO JUSTIFY ITS CESSATION OF THIS SERVICE AS BEING CONSISTENT
WITH THE PUBLIC CONVENIENCE AND NECESSITY. 

THE CONSEQUENCES OF PETITIONER'S ARGUMENT DO NOT STOP THERE.  THE
IDENTICAL PROVISIONS OF THE NATURAL GAS ACT REGULATE PIPELINE COMPANIES
AS WELL AS INDEPENDENT PRODUCERS.  IF PRODUCERS CAN INSIST IN THEIR
CERTIFICATES ON THE INCLUSION OF A PROVISION RELIEVING THEM IN ADVANCE
FROM THEIR OBLIGATION TO CONTINUE THE SUPPLY OF GAS, AS OF A DATE
CERTAIN, PIPELINE COMPANIES - WHOSE DEALINGS WITH LOCAL DISTRIBUTING
COMPANIES GENERALLY ALSO TAKE THE FORM OF A "SALE" OF GAS TO THEM -
COULD INSIST ON A SIMILAR PROVISION.  IF AN INDIVIDUAL PRODUCER WERE
THUS LEFT FREE TO DISCONTINUE HIS SUPPLY, THE TRANSMISSION COMPANY
WOULD BE FORCED TO FIND A SUPPLIER OF GAS ELSEWHERE, AND MAKE
CONNECTION WITH HIM, TO CONTINUE ITS SERVICE; AND THE CONSUMER
ULTIMATELY WOULD PAY THE BILL FOR THE REARRANGEMENT.  IF THE PIPELINE
COMPANY WERE LEFT FREE TO CEASE ITS SERVICE TO THE LOCAL DISTRIBUTION
COMPANY, A LOCAL ECONOMY WHICH HAD GROWN DEPENDENT ON NATURAL GAS AS A
FUEL WOULD BE AT ITS MERCY.  AND THIS, THOUGH THE PRIMARY PRACTICAL
PROBLEM THAT LED TO THE PASSAGE OF THE ACT WAS THE GREAT ECONOMIC POWER
OF THE PIPELINE COMPANIES AS COMPARED WITH THAT OF COMMUNITIES SEEKING
NATURAL GAS SERVICE.  SEE FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO.,
320 U.S. 591, 610. 

AND THERE ARE PRACTICAL CONSEQUENCES, RELATED TO RATE CONTROL, WHICH
ARE EVEN MORE CONCRETE.  THE COMPANION CASE, SUN OIL CO. V. FEDERAL
POWER COMM'N, POST, P. 170, ILLUSTRATES THEM.  IF PETITIONER'S
CERTIFICATE OF PUBLIC CONVENIENCE MUST EXPIRE WITH ITS FIRST CONTRACT
WITH UNITED, SERVICE AFTER THEN - UNDER A NEW CONTRACT OR OTHERWISE -
WILL REQUIRE A NEW CERTIFICATE.  AND UNDER THAT CERTIFICATE, PETITIONER
MAY FILE, PURSUANT TO SEC. 4(C) OF THE ACT, (FN10) ITS RATES FOR THE
"NEW" SERVICE.  THE ONLY POWER THE COMMISSION WOULD HAVE, UNDER THE
ACT, WITH RESPECT TO THOSE RATES, WOULD BE TO BEAR THE BURDEN OF PROOF
IN AN INVESTIGATION UNDER SEC. 5 OF THE ACT, (FN11) THAT THE RATES ARE
UNJUST OR UNREASONABLE, AND THEREUPON ORDER A NEW RATE, SOLELY FOR
PROSPECTIVE APPLICATION.  LAST TERM IN THE SO-CALLED CATCO CASE,
ATLANTIC REFINING CO. V. PUBLIC SERVICE COMM'N, SUPRA, AT 389, WE HAD
OCCASION TO REMARK THAT "THE DELAY INCIDENT TO DETERMINATION IN SEC. 5
PROCEEDINGS THROUGH WHICH INITIAL CERTIFICATED RATES ARE REVIEWABLE
APPEARS NIGH INTERMINABLE."  AT ORAL ARGUMENT, COUNSEL FOR THE
COMMISSION CONFIRMED THAT NO CONTESTED MAJOR PRODUCER'S SEC. 5 CASE HAD
BEEN FINALLY ADJUDICATED BY THE COMMISSION IN THE SIX YEARS SINCE THIS
COURT'S DECISION IN THE PHILLIPS CASE.  IN CONTRAST TO SEC. 5 ARE THE
PROTECTIONS THAT WOULD BE AVAILABLE IF AT THE CONCLUSION OF THE
ORIGINAL CONTRACT THE PRODUCER'S CERTIFICATE REMAINED IN FULL FORCE AND
EFFECT.  THEN THE RATES TO BE CHARGED UNDER A NEW CONTRACT OR OTHERWISE
WOULD HAVE TO BE FILED AS RATE CHANGES UNDER SEC. 4(D) OF THE ACT, WITH
30 DAYS' NOTICE TO THE COMMISSION AND THE PUBLIC.  (FN12) UNDER SEC.
4(E), THE COMMISSION, ON COMPLAINT OF ANY STATE, STATE COMMISSION, OR
MUNICIPALITY, OR SUA SPONTE, MAY ORDER A HEARING ON THE NEW RATE, AND
SUSPEND THE EFFECTIVENESS OF THE RATE FOR FIVE MONTHS.  (FN13)  AT THE
HEARING, THE GAS COMPANY WOULD HAVE TO SHOULDER THE BURDEN OF PROVING
THAT ITS NEW RATES WERE JUST AND REASONABLE.  IF THE HEARING WERE NOT
CONCLUDED BY THE END OF THE SUSPENSION PERIOD, THE INCREASED RATE COULD
BE COLLECTED AD INTERIM; BUT THE COMMISSION IS EMPOWERED TO REQUIRE THE
COMPANY TO COLLECT THE INCREMENT UNDER BOND AND ACCOUNTING, AND REFUND
IT IF IT COULD NOT MAKE OUT ITS CASE FOR THE INCREASE. 

CLEARLY, THE RATE CHANGE PROVISIONS OF SECS. 4(D) AND 4(E), RATHER
THAN THE "INITIAL RATE" PROVISIONS OF SEC. 4(C), ARE BETTER TAILORED TO
THE SITUATION THAT EXISTS WHEN AN INITIAL CONTRACT OF SALE OF NATURAL
GAS TERMINATES, AND THE SUPPLY OF GAS CONTINUES, WHETHER UNDER A NEW
CONTRACT OR WITHOUT ONE.  WHEN A PRODUCER COMMENCES INTERSTATE SALES
FROM A PARTICULAR FIELD, OR WHEN AN INTERSTATE TRANSMISSION COMPANY
COMMENCES SALES TO A LOCAL DISTRIBUTING COMPANY, THERE ARE BY
DEFINITION NO EXISTING RATES, AND ACCORDINGLY THE PROTECTIVE PROVISIONS
OF SECS. 4(D) AND (E), WHICH ARE BOTTOMED ON DELAYING THE EFFECTIVENESS
OF, AND SUSPENDING, CHANGES, ARE NOT RELEVANT.  BUT OF COURSE THIS IS
NOT THE CASE WHERE ONE SALES CONTRACT EXPIRES AND SERVICE CONTINUES; IN
THIS SITUATION, WHERE A RATE CHANGE IS PROPOSED, THE PROTECTIVE
PROVISIONS FIT AS WELL AS THEY DO IN THE CASE OF A RATE CHANGE MADE
PURSUANT TO A CONTRACT, DURING ITS TERM. 

THUS IT IS APPARENT THAT PETITIONER'S POSITION WOULD ENABLE IT TO
MAKE WHAT IN PRACTICAL EFFECT WOULD BE RATE CHANGES, BUT WITHOUT
COMPLIANCE WITH THE PROCEDURES OF SECS. 4(D) AND 4(E), AND SUBJECT TO
REVISION ONLY IN PROCEDURES WHICH ARE LIKELY TO "PROVIDE A WINDFALL FOR
THE NATURAL GAS COMPANY WITH A CONSEQUENT SQUALL FOR THE CONSUMERS," AS
WE SAID IN CATCO.  360 U.S., AT 390.  WHEN ATTACHED TO THE LEVERAGE OF
A POWER TO ABANDON SERVICE, AT A CONTRACT'S TERMINATION, WITHOUT
CONTEMPORANEOUS COMMISSION APPROVAL, THIS POWER TO EXERCISE CONTRACTUAL
CONTROL NOT ONLY OVER RATES BUT OVER THE MODE OF THEIR REGULATION,
WOULD BE A SUBSTANTIAL ONE INDEED.  AND, LIKE THE POWER TO FORCE AN
ADVANCE LICENSE FOR THE ABANDONMENT OF THE CONTINUED SUPPLY OF GAS, THE
POWER WOULD BE ONE ENJOYED BY PIPELINE COMPANIES AND PRODUCERS ALIKE. 
FURTHER, DECLARATION TODAY OF A WANT OF AUTHORITY IN THE COMMISSION TO
ISSUE A CERTIFICATE OF LONGER DURATION THAN THAT OF A SALES CONTRACT
ATTACHED TO THE APPLICATION WOULD HAVE A RETROACTIVE EFFECT; IT WOULD
AT LEAST FURNISH A GUIDE TO THE CONSTRUCTION OF CERTIFICATES ISSUED
PREVIOUSLY ON SUCH APPLICATIONS.  SEE SUN OIL CO. V. FEDERAL POWER
COMM'N, POST, P. 170. 

THIS COURT DECLARED AS EARLY AS THE HOPE NATURAL GAS CASE THAT THE
PRIMARY AIM OF THE NATURAL GAS ACT WAS "TO PROTECT CONSUMERS AGAINST
EXPLOITATION AT THE HANDS OF NATURAL GAS COMPANIES."  320 U.S. 591,
610.  WE REITERATED THAT DECLARATION LAST TERM IN CATCO, AND OBSERVED
THAT "THE ACT WAS SO FRAMED AS TO AFFORD CONSUMERS A COMPLETE,
PERMANENT AND EFFECTIVE BOND OF PROTECTION FROM EXCESSIVE RATES AND
CHARGES."  360 U.S., AT 388.  AGAINST THE BACKDROP OF THE PRACTICAL
CONSEQUENCES OF THE PETITIONER'S CLAIM AND THE PURPOSES OF THE ACT, WE
LOOK TO THE DETAILS OF ITS ARGUMENT THAT THE COMMISSION IS LIMITED, IN
GRANTING ITS CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, TO A TERM
CERTIFICATE OF THE DURATION PETITIONER HAS PROPOSED.    FIRST.
PETITIONER'S ARGUMENT IS BASED PRIMARILY ON ITS CONSTRUCTION OF SEC.
7(E) OF THE ACT.  THAT SECTION PROVIDES THAT A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY SHALL BE ISSUED "TO ANY QUALIFIED APPLICANT
THEREFOR, AUTHORIZING THE WHOLE OR ANY PART OF THE OPERATION, SALE,
SERVICE, CONSTRUCTION, EXTENSION, OR ACQUISITION COVERED BY THE
APPLICATION."  (FN14)  THIS, PETITIONER URGES, MAKES IT CLEAR THAT THE
OUTSIDE LIMIT OF WHAT THE COMMISSION MAY AUTHORIZE IS WHAT THE
APPLICANT PROPOSES.  FURTHER, PETITIONER URGES THAT THE LANGUAGE
REQUIRING A FINDING "THAT THE APPLICANT IS ABLE AND WILLING PROPERLY TO
DO THE ACTS AND TO PERFORM THE SERVICE PROPOSED" NEGATES THE
COMMISSION'S AUTHORITY TO GO BEYOND THE TIME LIMITATIONS THE APPLICANT
INSERTS IN ITS PROPOSAL; FOR IT IS CLAIMED THAT IT CANNOT BE FOUND THAT
PETITIONER IS WILLING TO DO MORE THAN WHAT IT HAS PROPOSED.  UNDER
PETITIONER'S THEORY, THE ABANDONMENT PROVISIONS OF SEC. 7(B) WOULD HAVE
APPLICATION ONLY IF IT WAS DESIRED TO ABANDON SERVICE WHILE THE
CONTRACT WAS STILL IN EFFECT. 

THE ARGUMENT SEEMS TO US UNPERSUASIVE EVEN ON THE FACE OF THE
STATUTORY LANGUAGE.  IT DEPENDS IN THE FIRST INSTANCE UPON FREIGHTING
THE PHRASE "THE WHOLE OR ANY PART," OBVIOUSLY INTENDED TO GIVE THE
COMMISSION POWER TO GRANT LESS THAN THE WHOLE OF AN APPLICATION, WITH A
LOAD OF NEGATIVE MEANING WHICH NOTHING IN THE LEGISLATIVE HISTORY
INDICATES THAT IT WAS TO BEAR.  EVEN WITHOUT THE ILLUMINATION OF THE
PURPOSE OF THE ACT, IT COULD BE ARGUED WITH EQUAL FORCE THAT ALL THAT
WAS MEANT WAS THAT THE CERTIFICATE TO BE GRANTED BE ONE SUFFICIENT TO
AUTHORIZE THE SPECIFIC "SALE" PROPOSED; WHICH AN UNLIMITED CERTIFICATE
CLEARLY IS, IN ANY CASE.  BUT APART FROM THIS, PETITIONER'S CONTENTION
DEPENDS ON THE ASSUMPTION THAT THE PROVISIONS RELIED UPON SPEAK ONLY IN
TERMS OF THE SPECIFIC "SALE" CONTEMPLATED BY THE PARTIES AND NOT IN
TERMS OF A "SERVICE" IN THE MOVEMENT OF GAS IN INTERSTATE COMMERCE, OF
WHICH "SERVICE" THE INITIAL "SALE" IS THE COMMENCEMENT.  FOR UNDER SEC.
7(E) THE COMMISSION IS AUTHORIZED TO ISSUE A CERTIFICATE AUTHORIZING
THE "SERVICE" COVERED BY THE APPLICATION, AS WELL AS A "SALE"; AND
SINCE SEC. 7(C), (FN15) WHICH DETAILS THE ACTS FOR WHICH A CERTIFICATE
IS A PREREQUISITE, SETS FORTH NO SPECIFIC ANTECEDENT FOR THE "SERVICE"
TO WHICH SEC. 7(E) REFERS, IT MIGHT WELL BE THOUGHT THAT ONE WHO
"ENGAGES IN THE TRANSPORTATION OR SALE OF NATURAL GAS," WHICH SEC. 7(C)
DOES REFER TO, IS PERFORMING A "SERVICE" WITHIN THE MEANING OF SEC.
7(E).  CERTAINLY THERE IS NO MORE LIKELY ANTECEDENT IN SEC. 7(C).  THE
STRUCTURE OF SEC. 4(C) PRESENTS THE SAME FEATURE, (FN16) AND THAT OF
THE ABANDONMENT PROVISIONS OF SEC. 7(B) THEMSELVES (FN17) LOOKS THE
SAME WAY. 

FURTHERMORE, WITHIN SEC. 7(E) ITSELF, THERE IS FOUND THE FURTHER
REQUIREMENT TO WHICH PETITIONER ITSELF POINTS - THAT WITH RESPECT TO AN
APPLICATION FOR A CERTIFICATE OF ANY NATURE, A TWO-PART FINDING MUST BE
MADE:  THAT THE APPLICANT IS WILLING AND ABLE "TO DO THE ACTS AND TO
PERFORM THE SERVICE PROPOSED."  THUS, IT IS EVIDENT THAT ALL THE
MATTERS FOR WHICH A CERTIFICATE IS REQUIRED - THE CONSTRUCTION OF
FACILITIES OR THEIR EXTENSION, AS WELL AS THE MAKING OF JURISDICTIONAL
SALES - MUST BE JUSTIFIED IN TERMS OF A "SERVICE" TO WHICH THEY
RELATE.  ACCORDINGLY, SEC. 7(E) ITSELF GIVES POSITIVE INDICATION THAT
THE "SERVICE" WHICH THE COMMISSION'S CERTIFICATE MAY AUTHORIZE IS
SOMETHING QUITE APART FROM SIMPLY THE SPECIFIC SALES WHICH SEC. 7(C)
FORBIDS WITHOUT A CERTIFICATE SUFFICIENT TO AUTHORIZE THEM.  TO BE
SURE, SEC. 7(E) REQUIRES THAT THE APPLICANT BE FOUND WILLING TO PERFORM
THE "SERVICE" IN QUESTION; BUT SURELY SUCH WILLINGNESS CAN BE INFERRED
FROM ITS WILLINGNESS TO ENTER INTO A LONG-TERM SALES CONTRACT.  TO SAY
THAT THE FINDING CANNOT BE MADE IN VIEW OF THE APPLICANT'S DECLARED
DESIRE TO STOP AND HAVE A LOOK IN 20 YEARS AS TO ITS CONTINUED DESIRE
TO BE SUBJECT TO REGULATION, AND THAT THIS IS A LIMIT ON ITS
WILLINGNESS TO PERFORM THE SERVICE THAT THE CERTIFICATES MUST RESPECT,
IS TO MAKE EFFECTIVE REGULATION TURN ON THE DESIRE OF THE REGULATED
ENTERPRISE TO BE SUBJECT TO IT.  (FN18)  THE WILLINGNESS TO MAKE THE
PROPOSED "SALE" THUS MUST IMPLY WILLINGNESS TO PERFORM THE "SERVICE"
WHICH IT REPRESENTS.  THUS EVEN AS A VERBAL ARGUMENT, PETITIONER'S
CONTENTIONS LACK PERSUASIVENESS. 

SECOND.  ONCE WE PASS BEYOND PARSING THE ACT TO A CONSIDERATION OF
ITS PURPOSE, AND OF THE PRACTICE UNDER IT, THE CONSTRUCTION WE HAVE
GIVEN IT BECOMES INESCAPABLE.  WE HAVE OUTLINED THE SERIOUS
CONSEQUENCES FOR THE REGULATORY SCHEME THAT ACCEPTANCE OF THE
PETITIONER'S ARGUMENT WOULD ENTAIL.  THESE CONSEQUENCES CANNOT READILY
BE AVERTED BY OTHER MEANS SUGGESTED BY THE ACT. 

IT IS URGED THAT IF IT IS IN THE PUBLIC INTEREST TO AWARD ONLY AN
UNLIMITED CERTIFICATE, THE COMMISSION MIGHT ATTAIN THIS END BY REFUSING
ALL APPLICATIONS FOR A LIMITED ONE, INTIMATING THAT AN UNLIMITED
APPLICATION WOULD BE FAVORABLY REGARDED.  BUT THE ACTION OF THE
COMMISSION IN REFUSING THE CERTIFICATE AS ORIGINALLY APPLIED FOR WOULD
BE SUBJECT TO JUDICIAL REVIEW; AND ONCE IT WERE HELD THAT THE
COMMISSION HAD NO AUTHORITY TO AWARD A CERTIFICATE OF LONGER DURATION
THAN THAT PRAYED FOR, SUCH AN INDIRECT METHOD OF ATTAINING THE SAME END
MIGHT WELL MEET JUDICIAL CONDEMNATION AS ARBITRARY.  THERE IS ALSO SOME
SUGGESTION THAT THE COMMISSION MIGHT USE ITS POWER, UNDER SEC. 7(E), OF
ATTACHING TO THE CERTIFICATE "SUCH REASONABLE TERMS AND CONDITIONS AS
THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE," TO ATTACH THE
"CONDITION" THAT THE CERTIFICATE BE PERMANENT.  BUT AGAIN, ONCE WANT OF
POWER TO DO THIS DIRECTLY WERE ESTABLISHED, THE EXISTENCE OF POWER TO
ACHIEVE THE SAME END INDIRECTLY THROUGH THE CONDITIONING POWER MIGHT
WELL BE DOUBTED; AND THE ACCEPTANCE OF A CERTIFICATE FOR A LONGER
DURATION THAN REQUESTED MIGHT NOT BE SAID PROPERLY TO BE A "TERM OR
CONDITION" OF A LIMITED ONE AT ALL.  (FN19)  WE THINK THE COMMISSION'S
POWER TO PROTECT THE PUBLIC INTEREST UNDER SEC. 7(E) NEED NOT BE
RESTRICTED TO THESE INDIRECT AND DUBIOUS METHODS. 

THE COMMISSION'S PRACTICE SUPPORTS ITS AUTHORITY HERE IN THE TERMS OF
SEC. 7(E).  IT HAS LONG DRAWN A DISTINCTION BETWEEN THE UNDERLYING
SERVICE TO THE PUBLIC A NATURAL GAS COMPANY PERFORMS AND THE SPECIFIC
MANIFESTATION - THE CONTRACTUAL RELATIONSHIP- WHICH THAT SERVICE TAKES
AT A GIVEN MOMENT.  FOR EXAMPLE, AN INDEPENDENT PRODUCER MAY FILE AS
ITS RATE SCHEDULE ITS CONTRACT OF SALE WITH A PIPELINE COMPANY.  THAT
CONTRACT MAY PROVIDE IN EXPLICIT TERMS FOR AN ADJUSTMENT OF RATES AT A
FUTURE TIME - EVEN ONE FOREORDAINED IN A PRECISE AMOUNT.  YET WHEN THE
ADJUSTMENT IS MADE PURSUANT TO THE CONTRACT, THE ADJUSTMENT IS SUBJECT,
AS A "CHANGE" IN RATES, TO THE PROCEDURES OF SECS. 4(D) AND 4(E) -
HOWEVER EXPLICIT THE UPWARD ADJUSTMENT WAS IN THE CONTRACT FROM THE
START.  CF. TEXAS GAS TRANSMISSION CORP. V. SHELL OIL CO., 363 U.S.
263.  THIS POSITION OF THE POWER COMMISSION IS EVIDENCE THAT THE
SERVICE IN WHICH THE PRODUCER ENGAGES IS DISTINCT FROM THE CONTRACT
WHICH REGULATES HIS RELATIONSHIP WITH THE TRANSMISSION COMPANY IN
PERFORMING THE SERVICE.  AND IT HAS BEEN UPHELD IN EVERY COURT OF
APPEALS CASE ON THE QUESTION.  EPISCOPAL THEOLOGICAL SEMINARY V.
FEDERAL POWER COMM'N, 269 F.2D 228; BEL OIL CORP. V. FEDERAL POWER
COMM'N, 255 F.2D 548, AND COMPANION CASES; CONTINENTAL OIL CO. V.
FEDERAL POWER COMM'N, 236 F.2D 839; CITIES SERVICE GAS PRODUCING CO. V.
FEDERAL POWER COMM'N, 233 F.2D 726; MISSISSIPPI RIVER FUEL CORP. V.
FEDERAL POWER COMM'N, 121 F.2D 159.  SEE UNITED GAS PIPE LINE CO. V.
MEMPHIS LIGHT, GAS & WATER DIV., 358 U.S. 103, 110.  IF THE ACT DOES
NOT CONTEMPLATE THAT IN A SELLER'S CONTRACT THERE MAY INHERE THE POWER,
OF THE CONTRACT'S OWN ACCORD, TO EFFECT A RATE CHANGE AT A FUTURE DATE
UNCHECKED BY THE REGULATORY SCHEME, IT IS HARD TO BELIEVE THAT IT
CONTEMPLATED THAT CONTRACTS WOULD OF NECESSITY HAVE THE EFFECT OF
PROVIDING FOR A DISCONTINUANCE OF SERVICE, WITHOUT FURTHER LEAVE OF THE
COMMISSION. 

FURTHER, THE POWER COMMISSION HAS FROM AN EARLY DATE TAKEN THE VIEW
THAT THERE IS A CONTINUING OBLIGATION TO PERFORM "SERVICE" IMPOSED BY
THE ACT WHICH OUTLASTS THE TERM OF A SELLER'S ORIGINAL CONTRACT OF
SALE.  AS EARLY AS 1942 IT HELD THAT AN ABANDONMENT OF SERVICE AFTER
THE EXPIRY OF SUCH A CONTRACT HAD TO HAVE COMMISSION APPROVAL UNDER
SEC. 7(B).  UNITED GAS PIPE LINE CO., 3 F.P.C. 3, 9.  THIS RULING WAS
MADE BY COMMISSIONERS, WHO HAD BEEN IN OFFICE DURING THE PASSAGE OF THE
ACT.  (FN20)  IT WAS NOT A FUNDAMENTAL RULING ON A BROAD QUESTION OF
JURISDICTION AS TO WHICH A COURT MIGHT ENJOY A WIDER LATITUDE OF
REVIEW.  SEE PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672, 678. 
IT WAS RATHER AN EARLY IMPLEMENTATION AND APPLICATION OF A DETAIL OF
THE STATUTORY SCHEME BY THE COMMISSION IN A REGULATORY SETTING BEFORE
IT.  THE RULING HAS BEEN FOLLOWED, SEE PANHANDLE EASTERN PIPE LINE CO.,
11 F.P.C. 167, 172, AND WE THINK THIS CONTEMPORANEOUS AND CONSISTENT
CONSTRUCTION, POINTING AGAIN TO A DISTINCTION BETWEEN THE UNDERLYING
"SERVICE" TO THE PUBLIC AND THE CONTRACTUAL MEANS BY WHICH IT IS
IMPLEMENTED, IS TO BE AFFORDED WEIGHT IN THE CONSTRUCTION WE MAKE. 

THIRD.  BUT AGAINST THESE CONSIDERATIONS, IT IS URGED THAT UNITED GAS
PIPE LINE CO. V. MOBILE GAS SERVICE CORP., 350 U.S. 332, ESTABLISHES
DOMINANT FACTORS WHICH IMPEL ONE TO THE CONSTRUCTION PETITIONER WOULD
PUT ON THE ACT.  PETITIONER CLAIMS THAT MOBILE ESTABLISHES A PRINCIPLE
THAT THE ACT (UNLIKE MANY OTHER REGULATORY SCHEMES) (FN21) IN GENERAL
PRESERVES THE INTEGRITY OF PRIVATE CONTRACTS, AND THAT THE JUDGMENT
BELOW IS IN CONFLICT WITH THAT PRINCIPLE. 

THE PETITIONER STATES ACCURATELY ENOUGH THE PRINCIPLE THAT MOBILE
ESTABLISHES.  SEE 350 U.S., AT 338, 344.  BUT THE CONCLUSION PETITIONER
ASSERTS DOES NOT FOLLOW.  IN MOBILE, THIS COURT HELD THAT WHERE A
SELLER OF GAS HAD ENTERED INTO A CONTRACT FOR THE SALE, IT COULD NOT,
BY VIRTUE OF THE PROVISION IN SEC. 4 FOR RATE CHANGES, FILE AN INCREASE
IN RATES THAT VIOLATED THE TERMS OF THE CONTRACT.  THIS WAS BECAUSE THE
SCHEME OF THE ACT WAS ONE WHICH BUILT THE REGULATORY SYSTEM ON A
FOUNDATION OF PRIVATE CONTRACTS.  IT WAS HELD IN THE MEMPHIS CASE,
UNITED GAS PIPE LINE CO. V. MEMPHIS LIGHT, GAS & WATER DIV., SUPRA,
THAT THE COROLLARY OF MOBILE WAS THAT WHERE THE CONTRACT LEFT THE
SELLER FREE TO ACT, HE COULD ACT UNILATERALLY UNDER SEC. 4. 

IT IS APPARENT THAT THE COMMISSION'S ORDER IN NO WAY VIOLATES THE
INTEGRITY OF PETITIONER'S CONTRACT WITH UNITED.  DURING ITS TERM, BOTH
PARTIES ARE BOUND BY IT TO THE SAME EXTENT AS ANY MEMBERS OF THIS
REGULATED INDUSTRY.  WHEN IT EXPIRES, PETITIONER, TO BE SURE, WILL BE
UNDER AN OBLIGATION TO CONTINUE TO DELIVER GAS TO UNITED ON THE
LATTER'S REQUEST UNLESS IT CAN JUSTIFY AN ABANDONMENT BEFORE THE
COMMISSION; BUT WE DO NOT SEE HOW THIS IN ANY WAY DISTURBS THE
INTEGRITY OF THE CONTRACT DURING ITS TERM.  THE OBLIGATION THAT
PETITIONER WILL BE UNDER AFTER THE CONTRACT TERM WILL NOT BE ONE
IMPOSED BY CONTRACT BUT BY THE ACT.  IT WILL BE FREE THEN, AS IT WAS
NOT FREE DURING THE CONTRACT TERM UNDER THE CONTRACT HERE IN QUESTION,
TO MAKE RATE CHANGES UNDER SEC. 4 WITHOUT UNITED'S CONSENT.  IT IS SAID
THAT PETITIONER WILL BE IN A POSITION OF INEQUALITY, BECAUSE IT MUST
SUPPLY GAS THEN TO UNITED WITHOUT A CORRESPONDING OBLIGATION ON UNITED
TO TAKE IT.  BUT UNITED, SUBJECT TO THE ACT IN ITS SALES TO LOCAL
DISTRIBUTORS, HAS ITS OBLIGATIONS TOO; AND IF IN FULFILLING THEM IT
DESIRES TO HAVE A CONTINUING SUPPLY OF GAS WITH THE STABILITY OF PRICE
PROTECTION WHICH A CONTRACT FURNISHES UNDER MOBILE, IT MAY BE
DISCOVERED THAT EACH SIDE HAS ITS BARGAINING STRENGTH.  IN ANY EVENT,
WE DO NOT SEE HOW THE PROSPECT OF THIS SITUATION AFTER THE TERM OF
PETITIONER'S CONTRACT IN ANY WAY IMPAIRS THE INTEGRITY OF ANY
CONTRACT.  MOBILE IS THUS SIMPLY BESIDE THE POINT. 

THE SHORT OF THE MATTER IS THAT MOBILE RECOGNIZED THAT THERE WERE TWO
SOURCES OF PRICE AND SUPPLY STABILITY INHERENT IN THE REGULATORY SYSTEM
ESTABLISHED BY THE NATURAL GAS ACT - THE PROVISIONS OF PRIVATE
CONTRACTS AND THE PUBLIC REGULATORY POWER.  SEE 350 U.S., AT 344. 
PETITIONER NOW URGES AN APPLICATION OF THAT DECISION THAT COULD MAKE
PRIVATE CONTRACTS THE ONLY STABILIZING FACTOR UNDER THE ACT.  NOT ONLY
DOES THIS READING HAVE NOTHING TO DO WITH THE INTEGRITY OF PRIVATE
CONTRACTS WHICH MOBILE UNDERWROTE, BUT IT MAKES A SEVERE INCURSION INTO
THE SOURCES OF THAT STABILITY OF NATURAL-GAS PRICES AND SUPPLY TO WHICH
THAT DECISION GAVE CONFIRMATION.  OUR CONSIDERATION OF THIS, AS WELL AS
THE REST OF PETITIONER'S ARGUMENTS, LEADS US TO REITERATE AS OUR
HOLDING THE CLEAR IMPLICATION OF WHAT WE RECENTLY SAID IN CATCO: AN
INITIAL APPLICATION OF AN INDEPENDENT PRODUCER, TO MAKE MOVEMENTS OF
NATURAL GAS IN INTERSTATE COMMERCE, LEADS TO A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY UNDER WHICH THE COMMISSION CONTROLS THE BASIS
ON WHICH "GAS MAY BE INITIALLY DEDICATED TO INTERSTATE USE.  MOREOVER,
ONCE SO DEDICATED THERE CAN BE NO WITHDRAWAL OF THAT SUPPLY FROM
CONTINUED INTERSTATE MOVEMENT WITHOUT COMMISSION APPROVAL.  THE GAS
OPERATOR, ALTHOUGH TO THIS EXTENT A CAPTIVE SUBJECT TO THE JURISDICTION
OF THE COMMISSION, IS NOT WITHOUT REMEDY TO PROTECT HIMSELF."  360
U.S., AT 389.  THAT REMEDY HE HAS, AS THE COURT THERE SAID, IN THE
"CHANGE" POWER UNDER SEC. 4(D) WHEN HIS CONTRACT HAS EXPIRED OR WHERE
HIS CONTRACT PERMITS ITS USE DURING ITS TERM.  UNDER A SIMILAR ACT,
THIS COURT HAS HELD TO THE SAME EFFECT AS WE HOLD TODAY.  PENNSYLVANIA
WATER & POWER CO. V. FEDERAL POWER COMM'N, 343 U.S. 414, 423-424. 

                                   II. 

ONCE THE POWER OF THE COMMISSION TO ISSUE THE CERTIFICATE WITHOUT
TIME LIMITATION IS ESTABLISHED, THE OTHER OBJECTIONS OF THE PETITIONER
FALL READILY.  IT IS CONTENDED THAT THE COMMISSION'S ORDER, BY
REQUIRING THE PETITIONER TO SUPPLY GAS BEYOND THE TERM OF ITS CONTRACT,
MAY, BY REQUIRING PETITIONER TO PRODUCE MORE GAS THAN IT HAS
CONTEMPLATED, OFFEND THE PROVISION OF SEC. 1(B) OF THE ACT THAT THE ACT
DOES NOT APPLY "TO THE PRODUCTION OR GATHERING OF NATURAL GAS."  THE
POINT WAS NOT RAISED BEFORE THE COMMISSION, AND ACCORDINGLY IS NOT FOR
OUR CONSIDERATION HERE; (FN22) AND WE MIGHT SAY IN ANY EVENT THAT THE
POINT IS NOT FOR EVALUATION IN THIS CERTIFICATION PROCEEDING, BUT
RATHER ON THE SPECIFIC FACTS PRESENTED IN THE CONTEXT OF AN ABANDONMENT
APPLICATION BY PETITIONER UNDER SEC. 7(B), AFTER THE EXPIRATION OF ITS
CONTRACT, WHEN AND IF IT DESIRES TO MAKE ONE.  WE INTIMATE NO VIEW AS
TO ITS MERIT.  (FN23)    OTHER OBJECTIONS SEEM PRIMARILY DIRECTED TO
THE POINT THAT THE COMMISSION IMPOSED THE BURDEN OF PROOF ON THE
PETITIONER TO SHOW THAT THE CERTIFICATE SHOULD BE LIMITED, IN THE
PUBLIC INTEREST, RATHER THAN ITSELF TAKING ON THE BURDEN OF SUPPORTING
ITS ISSUANCE OF AN UNLIMITED CERTIFICATE.  THERE IS NO CONTENTION THAT
THE COMMISSION WAS AGAIN INDULGING IN THE ERRONEOUS NOTION THAT IT HAD
NO POWER TO ISSUE A LIMITED CERTIFICATE.  CF. SUNRAY MID-CONTINENT OIL
CO. V. FEDERAL POWER COMM'N, 239 F.2D 97, REVERSED ON OTHER GROUNDS,
353 U.S. 944.  THIS PROCEDURAL FORMULATION SEEMS TO US WELL WITHIN THE
COMMISSION'S DISCRETION AS AN IMPLEMENTATION OF THE ACT'S PROTECTIVE
PROVISIONS WHICH WE HAVE DISCUSSED.  AND, THOUGH MUCH URGED BY
PETITIONER, THE FACT THAT THE COMMISSION HAS CERTIFICATED PIPELINE
OPERATIONS DESPITE THEIR SHOWING OF GAS RESOURCES OF A SHORTER DURATION
THAN PETITIONER'S CONTRACT TERM IS NOT INCONSISTENT WITH THE
COMMISSION'S APPROACH HERE.  (FN24)  FROM THE FACT THAT THE COMMISSION
HAS ISSUED CERTIFICATES IN THE PRESENCE OF WHAT MAY PROVE TO BE
PHYSICAL LIMITATIONS ON THE SERVICE TO BE RENDERED UNDER THEM, (FN25)
IT DOES NOT FOLLOW THAT THE COMMISSION CANNOT TAKE CARE LEST THESE
PHYSICAL PROBLEMS IN THE CONTINUATION OF SUPPLY BECOME FURTHER
COMPLICATED BY THE LEGAL CERTIFICATE TERM LIMITATIONS FOR WHICH THE
PETITIONER CONTENDS. 

FINALLY IT IS SUGGESTED THAT FOR VARIOUS REASONS WHICH PETITIONER
CLAIMS TO BE RELATED TO THE PUBLIC INTEREST, IT WOULD BE MORE
ADVANTAGEOUS IF GAS PRODUCERS WERE GIVEN A FREE HAND, AFTER THE
COMPLETION OF EACH CONTRACT, TO DETERMINE FOR THEMSELVES WHETHER THEY
SHOULD CONTINUE TO SERVE THE INTERSTATE MARKET.  THESE CONSIDERATIONS
WERE NOT URGED BEFORE THE COMMISSION, AND HENCE WE ARE NOT CALLED UPON
TO DECIDE WHETHER THEY WOULD COMPEL A DIFFERENT APPROACH BY THE
COMMISSION TO THE QUESTION OF TIME LIMITATIONS IN CERTIFICATES, OR EVEN
WHETHER, IN THE LIGHT OF THE ACT'S PROVISIONS - PARTICULARLY THE POLICY
EXPRESSED IN SEC. 7(B) - IT WOULD BE PROPER FOR IT SO TO RELY ON THEM. 
THERE IS NO CONTENTION MADE THAT PETITIONER DEMONSTRATED ANY SPECIFIC
CIRCUMSTANCES IN ITS OWN CASE INDICATING THAT, DESPITE THE COMMISSION'S
GENERAL POLICY, THE PUBLIC CONVENIENCE AND NECESSITY WARRANTED A
LIMITED CERTIFICATE FOR IT.  AFFIRMED. 

FN1  52 STAT. 821, AS AMENDED, 15 U.S.C. SECS. 717-717W. 

FN2  SECTION 1(B) OF THE ACT PROVIDES THAT "THE PROVISIONS OF THIS
ACT SHALL APPLY TO THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE
COMMERCE, TO THE SALE IN INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE
FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL,
OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES ENGAGED IN SUCH
TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY OTHER TRANSPORTATION
OR SALE OF NATURAL GAS OR TO THE LOCAL DISTRIBUTION OF NATURAL GAS OR
TO THE FACILITIES USED FOR SUCH DISTRIBUTION OR TO THE PRODUCTION OR
GATHERING OF NATURAL GAS."  52 STAT. 821, 15 U.S.C. SEC. 717(B). 

FN3  THE AMOUNT OF THE RESERVES WAS SUBJECT TO REDETERMINATION DURING
THE TERM OF THE CONTRACT PURSUANT TO ITS ARTICLE IV, BUT ONLY
PROSPECTIVE EFFECT WOULD BE GIVEN THE REDETERMINATIONS. 

FN4  ARTICLE IX OF THE CONTRACT ALSO PROVIDED FOR ADJUSTMENT OF THESE
PRICES, BY WAY OF UPWARD OR DOWNWARD ESCALATION, IN ACCORDANCE WITH A
PRICE INDEX OF THE DEPARTMENT OF LABOR. 

FN5  SEE NOTE 2, SUPRA. 

FN6  THE COMMISSION REACHED THIS CONCLUSION WITHOUT DISSENT.  THERE
WAS ONE DISSENT, BY COMMISSIONER CONNOLE, FROM THE ISSUANCE OF THE
CERTIFICATE, BUT ONLY INSOFAR AS THE COMMISSION FAILED TO ATTACH A RATE
CONDITION FOR WHICH THE COMMISSION STAFF HAD CONTENDED.  THIS ASPECT OF
THE CASE WAS NOT BROUGHT BEFORE THE COURT BELOW FOR REVIEW IN THESE
PROCEEDINGS. 

FN7  OF COURSE THE ECONOMICS OF THE INDUSTRY MIGHT PRECLUDE AN
UNYIELDING ASSUMPTION OF SUCH A POSITION.  SEE 360 U.S., AT 394. 

FN8  THE TEXT OF THE SECTION PROVIDES:  "NO NATURAL-GAS COMPANY SHALL
ABANDON ALL OR ANY PORTION OF ITS FACILITIES SUBJECT TO THE
JURISDICTION OF THE COMMISSION, OR ANY SERVICE RENDERED BY MEANS OF
SUCH FACILITIES, WITHOUT THE PERMISSION AND APPROVAL OF THE COMMISSION
FIRST HAD AND OBTAINED, AFTER DUE HEARING, AND A FINDING BY THE
COMMISSION THAT THE AVAILABLE SUPPLY OF NATURAL GAS IS DEPLETED TO THE
EXTENT THAT THE CONTINUANCE OF SERVICE IS UNWARRANTED, OR THAT THE
PRESENT OR FUTURE PUBLIC CONVENIENCE OR NECESSITY PERMIT SUCH
ABANDONMENT."  52 STAT. 824, 15 U.S.C. SEC. 717FB). 

FN9  SEE SEC. 1(18) OF THE INTERSTATE COMMERCE ACT, AS ADDED BY THE
TRANSPORTATION ACT OF 1920, 41 STAT. 477, 49 U.S.C. SEC. 1(18); SEC.
214(A) OF THE COMMUNICATIONS ACT OF 1934, AS AMENDED BY THE ACT OF
MARCH 6, 1943, 57 STAT. 11, 47 U.S.C. SEC. 214(A). 

FN10  "UNDER SUCH RULES AND REGULATIONS AS THE COMMISSION MAY
PRESCRIBE, EVERY NATURAL-GAS COMPANY SHALL FILE WITH THE COMMISSION
...  SCHEDULES SHOWING ALL RATES AND CHARGES FOR ANY TRANSPORTATION OR
SALE SUBJECT TO THE JURISDICTION OF THE COMMISSION, AND THE
CLASSIFICATIONS, PRACTICES, AND REGULATIONS AFFECTING SUCH RATES AND
CHARGES, TOGETHER WITH ALL CONTRACTS WHICH IN ANY MANNER AFFECT OR
RELATE TO SUCH RATES, CHARGES, CLASSIFICATIONS, AND SERVICES."  52
STAT. 822, 15 U.S.C. SEC. 717CC). 

FN11  IN PERTINENT PART, SEC. 5(A) OF THE ACT PROVIDES:  "WHENEVER
THE COMMISSION, AFTER A HEARING HAD UPON ITS OWN MOTION OR UPON
COMPLAINT OF ANY STATE, MUNICIPALITY, STATE COMMISSION, OR GAS
DISTRIBUTING COMPANY, SHALL FIND THAT ANY RATE, CHARGE, OR
CLASSIFICATION DEMANDED, OBSERVED, CHARGED, OR COLLECTED BY ANY NATURAL
GAS COMPANY IN CONNECTION WITH ANY TRANSPORTATION OR SALE OF NATURAL
GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR THAT ANY RULE,
REGULATION, PRACTICE, OR CONTRACT AFFECTING SUCH RATE, CHARGE, OR
CLASSIFICATION IS UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR
PREFERENTIAL, THE COMMISSION SHALL DETERMINE THE JUST AND REASONABLE
RATE, CHARGE, CLASSIFICATION, RULE, REGULATION, PRACTICE, OR CONTRACT
TO BE THEREAFTER OBSERVED AND IN FORCE, AND SHALL FIX THE SAME BY ORDER
...  ."  52 STAT. 823, 15 U.S.C. SEC. 717DA). 

FN12  "UNLESS THE COMMISSION OTHERWISE ORDERS, NO CHANGE SHALL BE
MADE BY ANY NATURAL-GAS COMPANY IN ANY SUCH RATE, CHARGE,
CLASSIFICATION OR SERVICE, OR IN ANY RULE, REGULATION, OR CONTRACT
RELATING THERETO, EXCEPT AFTER THIRTY DAYS' NOTICE TO THE COMMISSION
AND TO THE PUBLIC.  SUCH NOTICE SHALL BE GIVEN BY FILING WITH THE
COMMISSION AND KEEPING OPEN FOR PUBLIC INSPECTION NEW SCHEDULES STATING
PLAINLY THE CHANGE OR CHANGES TO BE MADE IN THE SCHEDULE OR SCHEDULES
THEN IN FORCE AND THE TIME WHEN THE CHANGE OR CHANGES WILL GO INTO
EFFECT  ...  ."  52 STAT.  823, 15 U.S.C. SEC. 717CD). 

FN13  "WHENEVER ANY SUCH NEW SCHEDULE IS FILED THE COMMISSION SHALL
HAVE AUTHORITY, EITHER UPON COMPLAINT OF ANY STATE, MUNICIPALITY, OR
STATE COMMISSION, OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, AT
ONCE, AND IF IT SO ORDERS, WITHOUT ANSWER OR FORMAL PLEADING BY THE
NATURAL-GAS COMPANY, BUT UPON REASONABLE NOTICE, TO ENTER UPON A
HEARING CONCERNING THE LAWFULNESS OF SUCH RATE, CHARGE, CLASSIFICATION,
OR SERVICE; AND, PENDING SUCH HEARING AND THE DECISION THEREON, THE
COMMISSION, UPON FILING WITH SUCH SCHEDULES AND DELIVERING TO THE
NATURAL-GAS COMPANY AFFECTED THEREBY A STATEMENT IN WRITING OF ITS
REASONS FOR SUCH SUSPENSION, MAY SUSPEND THE OPERATION OF SUCH SCHEDULE
AND DEFER THE USE OF SUCH RATE, CHARGE, CLASSIFICATION, OR SERVICE, BUT
NOT FOR A LONGER PERIOD THAN FIVE MONTHS BEYOND THE TIME WHEN IT WOULD
OTHERWISE GO INTO EFFECT:  PROVIDED, THAT THE COMMISSION SHALL NOT HAVE
AUTHORITY TO SUSPEND THE RATE, CHARGE, CLASSIFICATION, OR SERVICE FOR
THE SALE OF NATURAL GAS FOR RESALE FOR INDUSTRIAL USE ONLY; AND AFTER
FULL HEARINGS, EITHER COMPLETED BEFORE OR AFTER THE RATE, CHARGE,
CLASSIFICATION, OR SERVICE GOES INTO EFFECT, THE COMMISSION MAY MAKE
SUCH ORDERS WITH REFERENCE THERETO AS WOULD BE PROPER IN A PROCEEDING
INITIATED AFTER IT HAD BECOME EFFECTIVE.  IF THE PROCEEDING HAS NOT
BEEN CONCLUDED AND AN ORDER MADE AT THE EXPIRATION OF THE SUSPENSION
PERIOD.  ON MOTION OF THE NATURAL-GAS COMPANY MAKING THE FILING, THE
PROPOSED CHANGE OF RATE, CHARGE, CLASSIFICATION, OR SERVICE SHALL GO
INTO EFFECT.  WHERE INCREASED RATES OR CHARGES ARE THUS MADE EFFECTIVE,
THE COMMISSION MAY, BY ORDER, REQUIRE THE NATURAL-GAS COMPANY TO
FURNISH A BOND, TO BE APPROVED BY THE COMMISSION, TO REFUND ANY AMOUNTS
ORDERED BY THE COMMISSION, TO KEEP ACCURATE ACCOUNTS IN DETAIL OF ALL
AMOUNTS RECEIVED BY REASON OF SUCH INCREASE, SPECIFYING BY WHOM AND IN
WHOSE BEHALF SUCH AMOUNTS WERE PAID, AND, UPON COMPLETION OF THE
HEARING AND DECISION, TO ORDER SUCH NATURAL-GAS COMPANY TO REFUND, WITH
INTEREST, THE PORTION OF SUCH INCREASED RATES OR CHARGES BY ITS
DECISION FOUND NOT JUSTIFIED.  AT ANY HEARING INVOLVING A RATE OR
CHARGE SOUGHT TO BE INCREASED, THE BURDEN OF PROOF TO SHOW THAT THE
INCREASED RATE OR CHARGE IS JUST AND REASONABLE SHALL BE UPON THE
NATURAL-GAS COMPANY, AND THE COMMISSION SHALL GIVE TO THE HEARING AND
DECISION OF SUCH QUESTIONS PREFERENCE OVER OTHER QUESTIONS PENDING
BEFORE IT AND DECIDE THE SAME AS SPEEDILY AS POSSIBLE."  52 STAT. 823,
15 U.S.C. SEC. 717CE). 

FN14  "EXCEPT IN THE CASES GOVERNED BY THE PROVISOS CONTAINED IN
SUBSECTION (C) OF THIS SECTION, A CERTIFICATE SHALL BE ISSUED TO ANY
QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE WHOLE OR ANY PART OF THE
OPERATION, SALE, SERVICE, CONSTRUCTION, EXTENSION, OR ACQUISITION
COVERED BY THE APPLICATION, IF IT IS FOUND THAT THE APPLICANT IS ABLE
AND WILLING PROPERLY TO DO THE ACTS AND TO PERFORM THE SERVICE PROPOSED
AND TO CONFORM TO THE PROVISIONS OF THE ACT AND THE REQUIREMENTS,
RULES, AND REGULATIONS OF THE COMMISSION THEREUNDER, AND THAT THE
PROPOSED SERVICE, SALE, OPERATION, CONSTRUCTION, EXTENSION, OR
ACQUISITION, TO THE EXTENT AUTHORIZED BY THE CERTIFICATE, IS OR WILL BE
REQUIRED BY THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY;
OTHERWISE SUCH APPLICATION SHALL BE DENIED.  THE COMMISSION SHALL HAVE
THE POWER TO ATTACH TO THE ISSUANCE OF THE CERTIFICATE AND TO THE
EXERCISE OF THE RIGHTS GRANTED THEREUNDER SUCH REASONABLE TERMS AND
CONDITIONS AS THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE."  ADDED
BY THE ACT OF FEBRUARY 7, 1942, 56 STAT. 84, 15 U.S.C. SEC.  717FE). 

FN15  "NO NATURAL-GAS COMPANY OR PERSON WHICH WILL BE A NATURAL-GAS
COMPANY UPON COMPLETION OF ANY PROPOSED CONSTRUCTION OR EXTENSION SHALL
ENGAGE IN THE TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO THE
JURISDICTION OF THE COMMISSION, OR UNDERTAKE THE CONSTRUCTION OR
EXTENSION OF ANY FACILITIES THEREFOR, OR ACQUIRE OR OPERATE ANY SUCH
FACILITIES OR EXTENSIONS THEREOF, UNLESS THERE IS IN FORCE WITH RESPECT
TO SUCH NATURAL-GAS COMPANY A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY ISSUED BY THE COMMISSION AUTHORIZING SUCH ACTS OR OPERATIONS:
PROVIDED, HOWEVER, THAT IF ANY SUCH NATURAL-GAS COMPANY OR PREDECESSOR
IN INTEREST WAS BONA FIDE ENGAGED IN TRANSPORTATION OR SALE OF NATURAL
GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION, ON THE EFFECTIVE
DATE OF THIS AMENDATORY ACT, OVER THE ROUTE OR ROUTES OR WITHIN THE
AREA FOR WHICH APPLICATION IS MADE AND HAS SO OPERATED SINCE THAT TIME,
THE COMMISSION SHALL ISSUE SUCH CERTIFICATE WITHOUT REQUIRING FURTHER
PROOF THAT PUBLIC CONVENIENCE AND NECESSITY WILL BE SERVED BY SUCH
OPERATION, AND WITHOUT FURTHER PROCEEDINGS, IF APPLICATION FOR SUCH
CERTIFICATE IS MADE TO THE COMMISSION WITHIN NINETY DAYS AFTER FEBRUARY
7, 1942.  PENDING THE DETERMINATION OF ANY SUCH APPLICATION, THE
CONTINUANCE OF SUCH OPERATION SHALL BE LAWFUL. 

"IN ALL OTHER CASES THE COMMISSION SHALL SET THE MATTER FOR HEARING
AND SHALL GIVE SUCH REASONABLE NOTICE OF THE HEARING THEREON TO ALL
INTERESTED PERSONS AS IN ITS JUDGMENT MAY BE NECESSARY UNDER RULES AND
REGULATIONS TO BE PRESCRIBED BY THE COMMISSION; AND THE APPLICATION
SHALL BE DECIDED IN ACCORDANCE WITH THE PROCEDURE PROVIDED IN
SUBSECTION (E) OF THIS SECTION AND SUCH CERTIFICATE SHALL BE ISSUED OR
DENIED ACCORDINGLY:  PROVIDED, HOWEVER, THAT THE COMMISSION MAY ISSUE A
TEMPORARY CERTIFICATE IN CASES OF EMERGENCY, TO ASSURE MAINTENANCE OF
ADEQUATE SERVICE OR TO SERVE PARTICULAR CUSTOMERS, WITHOUT NOTICE OR
HEARING, PENDING THE DETERMINATION OF AN APPLICATION FOR A CERTIFICATE,
AND MAY BY REGULATION EXEMPT FROM THE REQUIREMENTS OF THIS SECTION
TEMPORARY ACTS OR OPERATIONS FOR WHICH THE ISSUANCE OF A CERTIFICATE
WILL NOT BE REQUIRED IN THE PUBLIC INTEREST."  ADDED BY THE ACT OF
FEBRUARY 7, 1942, 56 STAT. 83, 15 U.S.C. SEC. 717FC). 

FN16  NOT ONLY DOES SEC. 4(C), NOTE 10, SUPRA, CONTAIN A REFERENCE TO
"SERVICES" IN A CONTEXT WHERE THE ANTECEDENT MUST BE "TRANSPORTATION OR
SALE," BUT IT RECOGNIZES THAT A "CONTRACT" MAY "AFFECT OR RELATE TO"
SUCH SERVICES. 

FN17  IT WILL BE NOTED THAT SEC. 7(B) DOES NOT REFER TO THE
ABANDONMENT OF THE CONTINUATION OF SALES, BUT RATHER TO THE ABANDONMENT
OF "SERVICES."  SEE NOTE 8, SUPRA.  ACCORDINGLY, IF PETITIONER WAS
CORRECT IN SAYING THAT ITS CONTRACT DID NOT INVOLVE A "SERVICE," IT
WOULD BE DIFFICULT TO SEE THE APPLICABILITY OF THE ABANDONMENT
PROVISION EVEN DURING THE TERM OF THE CONTRACT, WHEN PETITIONER
CONCEDES IT IS APPLICABLE.    FN18  IN FACT, AS TO THIS CONTENTION, THE
EXAMINER SUMMARIZED THE EFFECT OF PETITIONER'S POSITION BY SAYING THAT
IT AMOUNTED TO A DECLARATION THAT PETITIONER "WOULD PREFER NOT TO BE
SUBJECT TO REGULATION."  19 F.P.C. 618, 635. 

FN19  ONE COURT OF APPEALS HAS DESCRIBED THE GRANTING OF A PERMANENT
CERTIFICATE UPON AN APPLICATION FOR A LIMITED ONE AS A CONDITIONAL
CERTIFICATE, BUT ITS DISCUSSION WOULD APPEAR TO NEGATE THE INFERENCE
THAT IT MEANT A CONDITION IN THE ORDINARY SENSE OF ONE ATTACHED BY
AUTHORITY OF THE LAST SENTENCE OF SEC. 7(E).  SEE SUNRAY MID-CONTINENT
OIL CO. V. FEDERAL POWER COMM'N, 239 F.2D 97, 99, N. 3, REVERSED ON
OTHER GROUNDS, 353 U.S. 944.  THE COMMISSION'S ORDER HERE RESTED
ALTERNATIVELY ON THE CONDITIONING POWER, AND ON THE GROUND WE HAVE
SUPPORTED ABOVE.  19 F.P.C., AT 620.  ONCE THE POWER TO GRANT A
PERMANENT CERTIFICATE UNDER THE GENERAL PROVISIONS OF SEC. 7(E) IS
ESTABLISHED, RESORT TO THE CONDITIONING POWER IS SUPERFLUOUS. 

FN20  COMMISSIONERS MANLY, DRAPER, SCOTT, AND SEAVEY, WHO SIGNED THE
DECISION, WERE ALL ON THE COMMISSION AT THE TIME OF THE PASSAGE OF THE
1938 ACT. 

FN21  SEE, E.G., ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, 80
82. 

FN22  "NO OBJECTION TO THE ORDER OF THE COMMSSION SHALL BE CONSIDERED
BY THE COURT UNLESS SUCH OBJECTION SHALL HAVE BEEN URGED BEFORE THE
COMMISSION IN THE APPLICATION FOR REHEARING UNLESS THERE IS REASONABLE
GROUND FOR FAILURE SO TO DO."  SECTION 19(B), 52 STAT. 831, AS AMENDED,
15 U.S.C. SEC. 717RB).  PETITIONER DID NOT COMPLY WITH THIS PROVISION. 

FN23  PETITIONER MAKES AN ARGUMENT BASED ON THE LIMITATIONS FOUND IN
A PROVISO TO SEC. 7(A) OF THE ACT, THE COMMISSION'S AUTHORITY TO
REQUIRE THE EXTENSION OF TRANSPORTATION FACILITIES AND THE SALE OF GAS
TO LOCAL DISTRIBUTORS.  52 STAT. 824, 15 U.S.C. SEC. 717FA).  BUT THE
COMMISSION'S ORDER IN NO WAY RELIED ON SEC. 7(A), AND ACCORDINGLY THIS
ARGUMENT OF PETITIONER MUST BE REJECTED. 

FN24  PRIMARY RELIANCE IS PUT ON TRANSWESTERN PIPELINE CO., 22 F.P.C.
391, 395-396, AND TRUNKLINE GAS CO., 21 F.P.C. 704, 709, WHERE THE
COMMISSION CERTIFICATED PIPELINE COMPANIES DESPITE THE FACT THAT THEIR
PRESENTLY ESTABLISHED GAS RESERVES WERE SHOWN TO HAVE A DELIVERABILITY
LIFE OF ABOUT 13 YEARS. 

FN25  IT MIGHT BE OBSERVED THAT IN THESE CASES THE COMMISSION ISSUED
CERTIFICATES WITHOUT TIME LIMITATIONS.  THUS IF THE COMPANIES, FAILING
TO FIND NEW SOURCES OF GAS SUPPLY, DESIRED TO ABANDON SERVICE BECAUSE
OF A DEPLETION OF SUPPLY, THEY WOULD HAVE TO MAKE PROOF THEREOF BEFORE
THE COMMISSION, UNDER SEC. 7(B).  THE COMMISSION THUS, EVEN THOUGH
THERE MAY BE PHYSICAL PROBLEMS BEYOND ITS CONTROL, KEPT LEGAL CONTROL
OVER THE CONTINUATION OF SERVICE BY THE APPLICANTS. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE DISSENT.* 

*(THESE OPINIONS APPLY ALSO TO NO. 321, SUN OIL CO. V. FEDERAL POWER
COMM'N, POST, P. 170.) 

IN JOINING MR. JUSTICE HARLAN'S OPINION I SHOULD LIKE TO ADD A WORD
BY WAY OF EMPHASIS. 

ONCE ANALYSIS OF THE PROBLEM OF THESE TWO CASES, RELATING AS THEY DO
EXCLUSIVELY TO INDEPENDENT PRODUCERS OF NATURAL GAS, IS STRIPPED OF
DARKENING DETAILS AND REDUCED TO ITS STATUTORY DETERMINANTS, AS SPELLED
OUT IN MY BROTHER HARLAN'S DISSENT, THE ANSWER BECOMES CLEAR AND
UNCOMPLICATED.  IF A LICENSING AGENCY HAS POWER TO GRANT A PARTICULAR
KIND OF LICENSE, AN APPLICANT HAS THE RIGHT TO APPLY FOR SUCH A
LICENSE.  IT MAY BE WITHHELD WITHOUT ADO ONLY IF THE AGENCY HAS
ARBITRARY - JUDICIALLY UNREVIEWABLE - POWER TO WITHHOLD SUCH A
LICENSE.  CONCEDEDLY THE COMMISSION HAS POWER TO GRANT A TIME-LIMITED
CERTIFICATE, AND ITS DENIAL OF SUCH A CERTIFICATE IS NOT FREE FROM
JUDICIAL REVIEW.  THEREFORE IT MUST GIVE A REASON FOR DENYING A PROPER
APPLICATION, WITH DUE REGARD, OF COURSE, TO ITS WIDE DISCRETIONARY
POWER FOR DETERMINING WHAT SATISFIES "PUBLIC CONVENIENCE AND
NECESSITY."  THE COMMISSION CANNOT REST DENIAL ON ITS IPSE DIXIT.  NOR
CAN THE COMMISSION REST ON THE GENERAL SPIRIT OR THE ULTIMATE PURPOSES
OF THE NATURAL GAS ACT, FOR TO DO SO AMOUNTS TO SAYING THAT THE ACT
FORBIDS TIME CERTIFICATES, WHEN IN FACT IT DOES NOT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
WHITTAKER, AND MR. JUSTICE STEWART JOIN, DISSENTING.* 

*(THESE OPINIONS APPLY ALSO TO NO. 321, SUN OIL CO. V. FEDERAL POWER
COMM'N, POST, P. 170.) 

THE BASIC ISSUE PRESENTED BY THESE TWO CASES IS ESSENTIALLY THIS:
WHEN AN INDEPENDENT PRODUCER OF NATURAL GAS ENTERS INTO A CONTRACT FOR
THE SALE OF HIS GAS IN INTERSTATE COMMERCE FOR RESALE, AND SEEKS A
CERTIFICATE FROM THE FEDERAL POWER COMMISSION TO CARRY OUT THAT
CONTRACT, MAY THE COMMISSION ISSUE A CERTIFICATE OF UNLIMITED DURATION
NOT LIMITED TO THE TERM OF THE CONTRACT, IN THE ABSENCE OF A SPECIAL
SHOWING THAT THE PUBLIC CONVENIENCE AND NECESSITY REQUIRE THE
CERTIFICATE TO BE PERPETUAL?   IN HOLDING THAT IT MAY, I BELIEVE THE
COURT HAS STRAINED THE PROVISIONS OF THE NATURAL GAS ACT BEYOND
PERMISSIBLE LIMITS IN ORDER TO REACH A RESULT WHICH IT DEEMS MORE
APPROPRIATE TO EFFECTIVE REGULATION.  IN MY OPINION, NEITHER WILL THE
ACT BEAR THE MEANING THE COURT ATTRIBUTES TO IT, NOR WILL A CONTRARY
INTERPRETATION BRING ABOUT THE PRACTICAL EVILS WHICH THE COURT
IMAGINES. 

                              I. 

IN MY VIEW THE COURT'S CONCLUSIONS ARE ATTRIBUTABLE AT BOTTOM TO ITS
FAILURE TO TAKE INTO ACCOUNT THE BASIC DISTINCTION BETWEEN AN
INTERSTATE PIPELINE AND AN INDEPENDENT PRODUCER OF NATURAL GAS.  A
PIPELINE PERFORMS A SERVICE AKIN TO THOSE TRADITIONALLY PERFORMED BY
PUBLIC UTILITIES.  THE INDEPENDENT PRODUCER, ON THE OTHER HAND, IS
UNIQUE AMONG THE OBJECTS OF PUBLIC-UTILITY REGULATION BECAUSE IT IS NOT
ENGAGED IN RENDERING A SERVICE TO THE PUBLIC IN THE CONVENTIONAL SENSE
OF THAT CONCEPT, BUT RATHER SIMPLY IN SELLING A COMMODITY WHICH IT
OWNS.  THE COURT'S BASIC ERROR, IT SEEMS TO ME, IS ITS NOTION THAT THE
PETITIONERS ARE RENDERING A CONTINUING SERVICE TO THE PUBLIC IN THE
SAME SENSE AS A PIPELINE OR OTHER CONVENTIONAL UTILITY, TO WHICH THE
USUAL MODES OF UTILITY REGULATION ARE EQUALLY APPLICABLE. 

I THINK THAT THE NATURAL GAS ACT, PARTICULARLY AS CONSTRUED BY THE
COURT IN PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672, RECOGNIZES
THIS IMPORTANT DISTINCTION.  THE BASIC JURISDICTIONAL FRAMEWORK OF THE
NATURAL GAS ACT IS FOUND IN SEC. 1(B) WHICH PROVIDES: 

"THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE  ...  , AND TO NATURAL-GAS COMPANIES ENGAGED
IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO  ...  THE
PRODUCTION OR GATHERING OF NATURAL GAS." 

IN PHILLIPS THE APPLICATION OF THIS PROVISION TO INDEPENDENT
PRODUCERS, SUCH AS THE PETITIONERS IN THESE CASES, WAS CONSIDERED. 
PHILLIPS THERE CONTENDED THAT IT WAS NOT SUBJECT TO THE ACT BECAUSE IT
DID NOT ENGAGE IN THE INTERSTATE TRANSMISSION OF GAS AND WAS NOT
AFFILIATED WITH ANY INTERSTATE PIPELINE COMPANY, AND THAT TO REGULATE
ITS PRICES WOULD BE TO CONTROL THE "PRODUCTION OR GATHERING" OF NATURAL
GAS, WHICH IS SPECIFICALLY EXEMPTED BY SEC. 1(B).  THE COURT REJECTED
THAT ARGUMENT, HOLDING THAT PHILLIPS' SALES, WHICH WERE UNQUESTIONABLY
MADE "IN INTERSTATE COMMERCE  ...  FOR RESALE," WERE SUBJECT TO THE
COMMISSION'S JURISDICTION.  IT RECOGNIZED THAT THE ACT CREATES TWO
SEPARATE AND DISTINCT BASES OF JURISDICTION - TRANSPORTATION AND SALE;
THAT AN INDEPENDENT PRODUCER ENGAGES SOLELY IN THE LATTER; AND THAT
BECAUSE OF THE PRODUCTION AND GATHERING EXEMPTION, IT IS ONLY THE ACT
OF SALE ITSELF, WHICH OCCURS AT THE VERY END OF THE PRODUCTION AND
GATHERING PROCESS, TO WHICH THE COMMISSION'S JURISDICTION ATTACHES.  IT
IS THUS EVIDENT THAT THE COURT RECOGNIZED THAT, AS TO INDEPENDENT
PRODUCERS, THE ACT ENVISAGED ONLY A LIMITED SCHEME OF REGULATION,
NAMELY CONTROL OVER THE PRICES AND THE OTHER TERMS OF SALE OF THEIR
NATURAL GAS.  THE BLURRING OF THIS DISTINCTION RESPECTING THE SCOPE OF
THE REGULATORY SCHEME OF THE ACT AS BETWEEN INDEPENDENT PRODUCERS AND
OTHERS CAN ONLY LEAD TO CONFUSION WHEN, AS HERE, THE COURT IS FACED
WITH DECIDING THE PROPER SCOPE OF THE OPERATIVE PROVISIONS OF THE
STATUTE. 

THE OPERATIVE PROVISIONS OF THE ACT CONSISTENTLY REFLECT THEIR MORE
LIMITED REACH AS REGARDS INDEPENDENT PRODUCERS THAN WITH RESPECT TO
OTHERS.  SECTION 7(C) REQUIRES CERTIFICATION IN ORDER TO:

"ENGAGE IN THE TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO THE
JURISDICTION OF THE COMMISSION, OR UNDERTAKE THE CONSTRUCTION OR
EXTENSION OF ANY FACILITIES THEREFOR, OR ACQUIRE OR OPERATE ANY SUCH
FACILITIES OR EXTENSIONS THEREOF  ...  ." 

THUS THREE DISTINCT CATEGORIES OF JURISDICTIONAL ACTS ARE SUBJECT TO
CERTIFICATION: (1) TRANSPORTATION, (2) SALE, AND (3) MAINTENANCE OF
JURISDICTIONAL FACILITIES.  A PIPELINE MUST NECESSARILY SECURE
AUTHORIZATION FOR BOTH TRANSPORTATION AND MAINTENANCE OF JURISDICTIONAL
FACILITIES, ACTS WHICH BY THEIR NATURE ARE CONTINUING SERVICES.  BUT I
DO NOT UNDERSTAND THE COURT TO CONTEND THAT PETITIONERS, AS INDEPENDENT
PRODUCERS, HAVE ENGAGED IN ANY JURISDICTIONAL ACT OTHER THAN A SALE. 

THE WORD "SALE," IN ITS ORDINARY SENSE, SIGNIFIES A TRANSACTION
LIMITED IN DURATION AND AMOUNT.  SECTION 7(C) REQUIRES CERTIFICATION OF
A SALE, AND THERE IS NOTHING IN THE ACT WHICH SUGGESTS THAT THE
CERTIFICATION IS TO BE BROADER THAN THE JURISDICTIONAL ACT WHICH IT
AUTHORIZES.  ON THE CONTRARY, SEC. 7(E), INFRA, P. 163, DIRECTS THE
COMMISSION TO ISSUE A CERTIFICATE AUTHORIZING "THE ...  SALE  ...
COVERED BY THE APPLICATION."  THE COURT SUGGESTS THAT A PERPETUAL
CERTIFICATE DOES IN FACT AUTHORIZE THE SPECIFIC SALE PROPOSED, AND THAT
TO SAY THAT THE COMMISSION CAN AUTHORIZE NO MORE THAN THAT IS TO "LOAD"
THE STATUTORY LANGUAGE WITH A NEGATIVE IMPLICATION WHICH WAS NEVER
INTENDED.  HOWEVER, AUTHORIZING A PRODUCER TO SELL IN PERPETUITY IS
CERTAINLY SOMETHING DIFFERENT FROM AUTHORIZING HIM TO MAKE A SPECIFIC
SALE.  IT COULD HARDLY BE CONTENDED THAT A STATUTORY DIRECTION TO THE
COMMISSION TO AUTHORIZE "THE  ...  SALE  ...  COVERED BY THE
APPLICATION" PERMITS IT TO AUTHORIZE SOME DIFFERENT SALE. 

THE COURT'S ASSUMPTION THAT A PERPETUAL CERTIFICATE AUTHORIZES
NOTHING DIFFERENT THAN WHAT THE PRODUCER HAS IN EFFECT APPLIED FOR CAN
IN THE END BE JUSTIFIED ONLY BY ITS VIEW, ALLUDED TO BEFORE, THAT WHAT
IS INVOLVES IS NOT A "SALE" AT ALL, BUT A "SERVICE" CONSISTING OF THE
PERPETUAL MOVEMENT OF GAS IN INTERSTATE COMMERCE.  HOWEVER, AS ALREADY
MENTIONED, THIS FLOUTS THE INDUSTRIAL REALITIES.   THE INDEPENDENT
PRODUCER DOES NOT PERFORM A SERVICE; HE OWNS AND SELLS A COMMODITY. 
SINCE HE NEED NOT DEDICATE HIS GAS SUPPLY TO THE INTERSTATE MARKET AT
ALL, SURELY HE MAY PROPOSE THE AMOUNT HE WILL DEDICATE.  THE COMMISSION
OF COURSE NEED NOT ACCEPT THE PROPOSAL.  BUT NEITHER CAN IT IN EFFECT
REQUIRE ACCEPTANCE OF A CERTIFICATE AUTHORIZING SOMETHING MORE, ON PAIN
OF DENYING THE APPLICANT ANY CERTIFICATE,WITHOUT SATISFYING THE
REQUIREMENTS OF SEC. 7(E), INFRA, FOR THE IMPOSITION OF CONDITIONS ON
CERTIFICATES. 

THE COURT, HOWEVER, PURPORTS TO FIND SUPPORT IN THE STATUTE FOR ITS
NOTION THAT A SALE IS REALLY A PERPETUAL SERVICE.  IT RELIES PRIMARILY
ON SEC. 7(E), WHICH PROVIDES IN RELEVANT PART THAT: 

"A CERTIFICATE SHALL BE ISSUED TO ANY QUALIFIED APPLICANT THEREFOR,
AUTHORIZING THE WHOLE OR ANY PART OF THE OPERATION, SALE, SERVICE,
CONSTRUCTION, EXTENSION, OR ACQUISITION COVERED BY THE APPLICATION, IF
IT IS FOUND THAT THE APPLICANT IS ABLE AND WILLING PROPERLY TO DO THE
ACTS AND TO PERFORM THE SERVICE PROPOSED,  ...  AND THAT THE PROPOSED
SERVICE, SALE, OPERATION, CONSTRUCTION, EXTENSION, OR ACQUISITION  ...
WILL BE REQUIRED BY THE  ...  PUBLIC CONVENIENCE AND NECESSITY  ... ." 

IT WOULD APPEAR PLAIN FROM THE FACE OF THE VERY LANGUAGE QUOTED THAT,
WHILE THE WORD "SERVICE" IS USED, IT IS USED DISJUNCTIVELY WITH "SALE"
AND SEVERAL OTHER WORDS, SO THAT A SALE AND A SERVICE ARE SIMPLY TWO
DIFFERENT, AND NOT SYNONYMOUS, THINGS THE COMMISSION IS AUTHORIZED TO
CERTIFICATE.  HOWEVER, THE COURT REASONS THAT "SERVICE" MUST REFER BACK
TO "TRANSPORTATION OR SALE," FOR WHICH SEC. 7(C) REQUIRES A
CERTIFICATE.  BUT SEC. 7(C) REQUIRES A CERTIFICATE FOR THREE SEPARATE
CATEGORIES OF JURISDICTIONAL ACTS - TRANSPORTATION, SALE, AND
MAINTENANCE OF FACILITIES.  AND SEC. 7(E), CONCEDEDLY REFERRING BACK TO
THOSE CATEGORIES, LISTS SIX ITEMS - OPERATION, SALE, SERVICE,
CONSTRUCTION, EXTENSION, AND ACQUISITION.  WHY THE TERM "SERVICE" IN
SEC. 7(E) SHOULD BE THOUGHT TO REFER TO "SALE," THE LEAST APT OF THE
THREE CATEGORIES IN SEC. 7(C) WHICH IT COULD DESCRIBE, WHEN IT IS
IMMEDIATELY PRECEDED IN SEC. 7(E) BY THE WORD "SALE" ITSELF, IS
DIFFICULT TO UNDERSTAND. 

THE COURT FURTHER SAYS THAT THE PROVISIONS OF SECS. 4(C) (FN1) AND
7(B) (FN2) PRESENT THE SAME FEATURE.  IN SEC. 4(C), THE WORD "SERVICE"
AGAIN APPEARS AS PART OF AN OMNIBUS DEFINITION WHICH REFERS TO A NUMBER
OF ANTECEDENTS.  EVEN ASSUMING, AS THE COURT DOES, THAT THE ONLY
ANTECEDENT IS "TRANSPORTATION OR SALE," THERE IS NO REASON TO SUPPOSE
THAT "SERVICE" WAS MEANT TO BE TAKEN AS THE EQUIVALENT OF "SALE" AS
WELL AS OF "TRANSPORTATION," OR THAT IT LIMITS EITHER.  SECTION 7(B)
REFERS ONLY TO THE ABANDONMENT OF SERVICES "RENDERED BY MEANS OF"
JURISDICTIONAL FACILITIES.  THERE IS NOT THE SLIGHTEST HINT IN THE

FINALLY, THE COURT POINTS TO THE REQUIREMENT OF SEC. 7(E), ANTE, P.
148, THAT THE APPLICANT FOR A CERTIFICATE BE WILLING AND ABLE "TO DO
THE ACTS AND PERFORM THE SERVICE PROPOSED."  FROM THIS IT INFERS THAT
ALL THE MATTERS FOR WHICH SEC. 7(C), ANTE, P. 149, REQUIRES A
CERTIFICATE "MUST BE JUSTIFIED IN TERMS OF A 'SERVICE' TO WHICH THEY
RELATE."  I SHOULD HAVE THOUGHT IT QUITE PLAIN THAT AN APPLICANT IS
REQUIRED TO "PERFORM THE SERVICE PROPOSED" ONLY IF A SERVICE IS
PROPOSED.  PERHAPS IT WOULD HAVE BEEN MORE APT FOR CONGRESS TO HAVE
SAID "DO THE ACTS AND/OR PERFORM THE SERVICES PROPOSED," BUT I CANNOT
UNDERSTAND HOW THE CLAUSE AS WRITTEN CAN BE READ AS MEANING THAT
WHATEVER THE APPLICANT PROPOSES MUST BE BOTH AN ACT AND A SERVICE.    I
MUST CONCLUDE THAT THERE IS NOTHING IN THE STATUTE WHICH MAKES "SALE"
THE EQUIVALENT OF "SERVICE."  ON THE CONTRARY, THE TERMS ARE ALWAYS
USED DISJUNCTIVELY.  A SALE, AS A JURISDICTIONAL GROUND DISTINCT FROM
EITHER TRANSPORTATION OR THE MAINTENANCE OF JURISDICTIONAL FACILITIES
(SEC. 1(B) ANTE, P. 160) IS A LIMITED TRANSACTION.  A CERTIFICATE
AUTHORIZING A SALE AUTHORIZES NO MORE AND, IN MY VIEW, MUST BE REGARDED
AS EXPIRING WHEN THE UNDERLYING SALE TERMINATES, EXCEPT IN A SITUATION
WHERE THE COMMISSION HAS PROPERLY CONDITIONED ISSUANCE ON CONTINUANCE
OF THE CERTIFICATE FOR A LONGER PERIOD.  SEE POST, P. 167.  IT IS
SUGGESTED THAT THE COMMISSION HAS CONSISTENTLY HELD THAT THE OBLIGATION
TO PROVIDE SERVICE PERSISTS EVEN AFTER A PARTICULAR CONTRACT
TERMINATES.  SEE UNITED GAS PIPE LINE CO., 3 F.P.C. 3; CABOT GAS CORP.,
ID., 357; GODFREY L. CABOT, INC., ID., 582; PANHANDLE EASTERN PIPE LINE
CO., 11 F.P.C. 167, 172.  ALL THOSE CASES, HOWEVER, INVOLVED PIPELINE
COMPANIES WHICH WERE IN FACT PROVIDING A CONTINUING SERVICE AND WHICH
HAD FACILITIES SUBJECT TO THE JURISDICTION OF THE COMMISSION REGARDLESS
OF THE DURATION OF A PARTICULAR CONTRACT.  THEY SERVE AS NO AUTHORITY
FOR THE PRESENT QUITE DIFFERENT SITUATION WHERE AN INDEPENDENT PRODUCER
IS SUBJECT TO THE COMMISSION'S JURISDICTION ONLY BY VIRTUE OF HIS
SALES. 

                                         II. 

THE COURT ASSERTS THAT A CONSTRUCTION OF THE STATUTE CONTRARY TO THE
ONE IT REACHES WILL RESULT IN INTOLERABLE CONSEQUENCES, PRIMARILY IN
TWO RESPECTS.  FIRST, IT SAYS, PRODUCERS AND PIPELINES WOULD BE ABLE TO
ABANDON THEIR UNDERTAKINGS AT THE END OF THE CONTRACT TERM WITHOUT A
SHOWING THAT THE PUBLIC CONVENIENCE AND NECESSITY JUSTIFY SUCH
ABANDONMENT, THUS DEFEATING THE POLICY OF SEC. 7(B) OF THE ACT, AND
GIVING THE INDUSTRY A LEVER TO AVERT REGULATION OF ANY KIND.  SECOND,
IT CONCLUDES, PRODUCERS WOULD BE ABLE, AT THE EXPIRATION OF THEIR
CONTRACTS, TO FILE A HIGHER PRICE AS AN INITIAL RATE UNDER A NEW
CERTIFICATE.  THIS WOULD FORCE THE COMMISSION, IT IS SAID, TO TEST THE
REASONABLENESS OF THE RATE UNDER SEC. 5(A), ANTE, P. 144, WHERE THE
COMMISSION HAS THE BURDEN OF PROOF AND WHERE EXPERIENCE HAS SHOWN THE
PROCEDURE TO BE SUBJECT TO GREAT DELAYS, AND WOULD AVOID THE RATE
CHANGE PROCEDURES OF SEC. 4(E), ANTE, P. 145, WHERE THE PRODUCER HAS
THE BURDEN OF PROOF AND THE EFFECTIVENESS OF THE RATE CAN BE SUSPENDED
PENDING INVESTIGATION. 

AS TO ABANDONMENT, THE COURT'S VIEW AGAIN RESTS ON THE ERRONEOUS
NOTION THAT THE COMMISSION IS CHARGED WITH ASSURING CONTINUITY OF
"SERVICE" ON THE PART OF INDEPENDENT PRODUCERS.  HOWEVER, SEC. 7(B), BY
ITS OWN TERMS, PROHIBITS ABANDONMENT OF ONLY TWO THINGS:
JURISDICTIONAL FACILITIES, AND ANY SERVICE "RENDERED BY MEANS OF" SUCH
FACILITIES.  THE COURT DOES NOT SUGGEST THAT PETITIONERS HAVE ANY
JURISDICTIONAL FACILITIES.  AND THERE CAN BE NO APPREHENSION ABOUT THE
PIPELINES, SINCE THEY CLEARLY PROVIDE A SERVICE BY MEANS OF
JURISDICTIONAL FACILITIES AND ARE CERTIFICATED FOR AN UNLIMITED
DURATION. 

THERE IS A MORE BASIC REASON, HOWEVER, WHY THE EVILS WHICH THE COURT
IMAGINES DO NOT EXIST.  THE COMMISSION IS REQUIRED TO ISSUE A
CERTIFICATE ONLY IF THE APPLICANT'S PROPOSAL IS REQUIRED BY THE PUBLIC
CONVENIENCE AND NECESSITY.  THE VAST MAJORITY OF SALES ARE, OF ECONOMIC
NECESSITY, BONA FIDE TRANSACTIONS OF SUBSTANTIAL DURATION (SEE UNITED
GAS PIPE LINE CO. V. MOBILE GAS SERVICE CORP., 350 U.S. 332, AT 344)
AND WILL, OF COURSE, BE APPROVED IN ORDINARY COURSE.  BUT SURELY, IF A
PROPOSAL CONTAINS SUCH DISINGENUOUS PROVISIONS AS THE COURT SUGGESTS,
ITS CERTIFICATION WOULD NOT BE IN THE PUBLIC INTEREST.  THE COURT'S
FEAR THAT DENIAL OF THE CERTIFICATE UNDER SUCH CIRCUMSTANCES WOULD BE
OVERTURNED ON REVIEW IS THE SHEEREST SPECULATION, ESPECIALLY IN AN AREA
WHERE THE COMMISSION IS ENTRUSTED WITH SUCH WIDE DISCRETION. 

FURTHERMORE, THE COMMISSION CAN TENDER A PERPETUAL CERTIFICATE UNDER
ITS SEC. 7(E) POWER TO ATTACH REASONABLE TERMS AND CONDITIONS.  (FN3)
BUT IN SUCH A CASE, IT WOULD HAVE TO BEAR THE BURDEN OF SHOWING THAT
THE PUBLIC CONVENIENCE AND NECESSITY REQUIRE SUCH A CONDITION.  WHAT
THE COURT IN EFFECT PERMITS THE COMMISSION TO DO HERE IS SIMPLY TO
ATTACH THE CONDITION WITHOUT SUCH A SHOWING.  IF, AS THE COMMISSION
STOUTLY MAINTAINS, A LIMITED CERTIFICATE WOULD CONSTITUTE A SERIOUS
THREAT TO THE PUBLIC INTEREST, THEN SURELY IT IS NOT TOO MUCH TO ASK IT
TO SHOW THAT FACT BEFORE TENDERING A PRODUCER A CERTIFICATE DIFFERENT
FROM THE ONE HE HAS REQUESTED.  AND WHERE THE COMMISSION HAS FAIRLY
MADE SUCH A SHOWING, I CANNOT BELIEVE, WITH ALL DEFERENCE TO THE
COURT'S CONTRARY INTIMATION, THAT THERE IS THE SLIGHTEST DANGER THAT
ITS ACTION WOULD NONETHELESS BE OVERTURNED ON THE THEORY IT WAS
ATTEMPTING TO ACCOMPLISH INDIRECTLY THAT WHICH IT CANNOT DO DIRECTLY. 
SUCH A VIEW ASSUMES THAT A COURT WILL BE BLIND TO THE CONDITIONING
POWER EXPRESSLY GIVEN THE COMMISSION BY STATUTE, AND IGNORES THE FACT
THAT THERE IS A VERY REAL DIFFERENCE BETWEEN TENDERING AN UNLIMITED
CERTIFICATE WHEN THE COMMISSION HAS MADE NO AFFIRMATIVE SHOWING OF
PUBLIC NEED FOR A PERPETUAL DURATION AND TENDERING ONE WHEN IT HAS MADE
SUCH A SHOWING.  IN THE LAST ANALYSIS, THAT ADDITIONAL BURDEN IS THE
ONLY CONSEQUENCE WHICH TURNS ON THE OUTCOME OF THESE CASES. 

I WOULD HOLD THAT WHERE, AS IN NO. 335, AN INDEPENDENT PRODUCER
APPLIES FOR AUTHORITY SIMPLY TO ENGAGE IN A SALE TRANSACTION
SPECIFICALLY LIMITED IN DURATION, THE COMMISSION HAS NO AUTHORITY TO
TENDER AN UNLIMITED CERTIFICATE WITHOUT BEARING THE BURDEN OF SHOWING
THAT SUCH A DEPARTURE FROM THE PROPOSAL IS REQUIRED BY THE PUBLIC
CONVENIENCE AND NECESSITY. 

                                         III. 

THE QUESTION REMAINS WHETHER PETITIONER IN NO. 321 PROPOSED A SALE
TRANSACTION WHICH WAS LIMITED IN DURATION AND WHETHER THE COMMISSION
CERTIFICATED NO MORE THAN THAT SALE.  THE TERM OF THE CONTRACT FILED
WITH THE COMMISSION WAS CLEARLY LIMITED TO 10 YEARS.  PETITIONER'S
APPLICATION INCORPORATED THAT CONTRACT BY REFERENCE, AND DECLARED THAT
"THIS APPLICATION IS HEREBY MADE ONLY FOR A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY AUTHORIZING THE SALE OF NATURAL GAS IN THE
CIRCUMSTANCES ABOVE DESCRIBED."  THE COMMISSION ORDERED THAT A
CERTIFICATE BE "HEREBY ISSUED  ... AUTHORIZING THE SALE BY APPLICANT OF
NATURAL GAS  ...  AS MORE FULLY DESCRIBED IN THE APPLICATION AND
EXHIBITS IN THIS PROCEEDING  ...  .  THE CERTIFICATE  ...  SHALL BE
EFFECTIVE ONLY SO LONG AS APPLICANT CONTINUES THE ACTS OR OPERATIONS
HEREBY AUTHORIZED IN ACCORDANCE WITH THE PROVISIONS OF THE NATURAL GAS
ACT  ...  ."  I THINK THE FAIR INTERPRETATION OF ALL THIS IS THAT WHAT
WAS AUTHORIZED WAS THE SALE PROPOSED, AND THAT THE CERTIFICATE SHOULD
THEREFORE BE TAKEN AS LIMITED IN DURATION TO THE TERM OF THE SALE
CONTRACT. 

THE COMMISSION, HOWEVER, CONTENDS THAT SINCE, AT THE TIME
PETITIONER'S CERTIFICATE WAS ISSUED, IT HAD TAKEN THE POSITION IN
SUNRAY OIL CORP., 14 F.P.C. 877, THAT IT HAD NO POWER TO ISSUE A
CERTIFICATE SPECIFICALLY LIMITED IN DURATION, THIS CERTIFICATE MUST BE
TAKEN AS ONE UNLIMITED IN DURATION.  THAT POSITION, HOWEVER, WAS LATER
REVERSED ON APPEAL, SUNRAY MID-CONTINENT OIL CO. V. FEDERAL POWER
COMM'N, 239 F.2D 97, AND THE COMMISSION ACQUIESCED THEREIN.  BUT THE
COMMISSION WAS MORE FUNDAMENTALLY WRONG IN BELIEVING THAT A CERTIFICATE
AUTHORIZING A SALE IS UNLIMITED UNLESS SPECIFICALLY OTHERWISE
CONDITIONED.  THEREFORE, WHEN IT TENDERED TO PETITIONER A CERTIFICATE
WITHOUT ANY LIMITING LANGUAGE, ITS ERRONEOUS BELIEF THAT IT WAS ISSUING
A PERPETUAL CERTIFICATE COULD NOT BIND PETITIONER.  THE COMMISSION WAS
AUTHORIZED TO ISSUE ONLY A CERTIFICATE LIMITED TO THE DURATION OF THE
SALE UNLESS A CONDITION WERE EXPRESSLY IMPOSED TO THE CONTRARY, AND
WHAT IT ISSUED PURPORTED TO BE NO MORE THAN THAT.  PETITIONER CANNOT BE
TAKEN TO HAVE ACQUIESCED IN A CERTIFICATE AUTHORIZING SOMETHING OTHER
THAN IT REQUESTED, WHERE THE CERTIFICATE GAVE NO NOTICE OF THAT FACT,
SIMPLY BECAUSE THE COMMISSION MAY HAVE BELIEVED ITS EFFECT TO BE
OTHERWISE. 

I FEAR THIS IS ANOTHER INSTANCE WHERE THE COURT HAS TAKEN
IMPERMISSIBLE LIBERTIES WITH STATUTORY LANGUAGE IN ORDER TO REMEDY WHAT
IT CONSIDERS AN UNDESIRABLE DEFICIENCY IN THE WAY CONGRESS HAS WRITTEN
THE STATUTE.  CF. UNITED STATES V. REPUBLIC STEEL CORP., 362 U.S. 482,
493 (DISSENTING OPINION). 

I WOULD REVERSE THE JUDGMENTS IN BOTH CASES. 

FN1  "(C)  UNDER SUCH RULES AND REGULATIONS AS THE COMMISSION MAY
PRESCRIBE, EVERY NATURAL-GAS COMPANY SHALL FILE WITH THE COMMISSION,
WITHIN SUCH TIME (NOT LESS THAN SIXTY DAYS FROM JUNE 21, 1938) AND IN
SUCH FORM AS THE COMMISSION MAY DESIGNATE, AND SHALL KEEP OPEN IN
CONVENIENT FORM AND PLACE FOR PUBLIC INSPECTION, SCHEDULES SHOWING ALL
RATES AND CHARGES FOR ANY TRANSPORTATION OR SALE SUBJECT TO THE
JURISDICTION OF THE COMMISSION, AND THE CLASSIFICATIONS, PRACTICES, AND
REGULATIONS AFFECTING SUCH RATES AND CHARGES, TOGETHER WITH ALL
CONTRACTS WHICH IN ANY MANNER AFFECT OR RELATE TO SUCH RATES, CHARGES,
CLASSIFICATIONS, AND SERVICES." 

FN2  "(B)  NO NATURAL-GAS COMPANY SHALL ABANDON ALL OR ANY PORTION OF
ITS FACILITIES SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR ANY
SERVICE RENDERED BY MEANS OF SUCH FACILITIES, WITHOUT THE PERMISSION
AND APPROVAL OF THE COMMISSION FIRST HAD AND OBTAINED, AFTER DUE
HEARING, AND A FINDING BY THE COMMISSION THAT THE AVAILABLE SUPPLY OF
NATURAL GAS IS DEPLETED TO THE EXTENT THAT THE CONTINUANCE OF SERVICE
IS UNWARRANTED, OR THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE OR
NECESSITY PERMIT SUCH ABANDONMENT." 

FN3  "THE COMMISSION SHALL HAVE THE POWER TO ATTACH TO THE ISSUANCE
OF THE CERTIFICATE AND TO THE EXERCISE OF THE RIGHTS GRANTED THEREUNDER
SUCH REASONABLE TERMS AND CONDITIONS AS THE PUBLIC CONVENIENCE AND
NECESSITY MAY REQUIRE." 
..END :




SUN OIL CO. V. FEDERAL POWER COMMISSION 364 U.S. 170 


NO. 321.  ARGUED APRIL 26, 1960 - DECIDED JUNE 27, 1960 - 266 F.2D 222,
AFFIRMED. 


IN 1947, PETITIONER, AN INDEPENDENT PRODUCER OF NATURAL GAS,
CONTRACTED TO SELL GAS FROM A SPECIFIED FIELD TO AN INTERSTATE PIPELINE
COMPANY AT A SPECIFIED PRICE FOR A TERM OF 10 YEARS.  SUBSEQUENTLY
PETITIONER APPLIED FOR, AND OBTAINED FROM, THE FEDERAL POWER COMMISSION
A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY AUTHORIZING SUCH
SALES, AND ITS CONTRACT-RATE SCHEDULE WAS ACCEPTED AS ITS RATE SCHEDULE
UNDER THE NATURAL GAS ACT.  UPON EXPIRATION OF ITS 10-YEAR CONTRACT,
PETITIONER CONTRACTED WITH THE SAME PIPELINE COMPANY FOR THE SALE OF
GAS FROM THE SAME FIELD FOR A NEW 20-YEAR TERM BUT AT A HIGHER RATE. 
PETITIONER THEN APPLIED FOR A NEW CERTIFICATE COVERING THE NEW CONTRACT
AND FILED THE NEW CONTRACT AS AN INITIAL-RATE SCHEDULE UNDER THE NEW
CERTIFICATE PURSUANT TO SEC. 5 OF THE ACT.  THE COMMISSION REJECTED THE
CERTIFICATE APPLICATION AS DUPLICATIVE OF PETITIONER'S EXISTING
CERTIFICATE TO MAKE SALES FROM THE FIELD IN QUESTION AND REJECTED THE
RATE-SCHEDULE FILING ON THE GROUND THAT THE PURPORTED INITIAL-RATE
SCHEDULE WAS ACTUALLY A CHANGE IN PETITIONER'S EXISTING RATE SCHEDULE. 
PETITIONER THEN FILED, UNDER PROTEST, AS RATE CHANGES PURSUANT TO SEC.
4(D), THE RATES IN ITS NEW CONTRACT, AND THE COMMISSION ORDERED THOSE
RATES SUSPENDED UNDER SEC. 4(E).  HELD:  THE COMMISSION'S ORDERS ARE
SUSTAINED.  PP. 171-176. 

(A)  IN ACTING UPON PETITIONER'S 1947 APPLICATION, BASED ON ITS 10
YEAR CONTRACT, THE COMMISSION WAS AUTHORIZED TO ISSUE A CERTIFICATE
UNLIMITED AS TO TIME.  SUNRAY MID-CONTINENT OIL CO. V. FEDERAL POWER
COMMISSION, ANTE, P. 137.  P. 174. 

(B)  THE COMMISSION PROPERLY CONSTRUED THE CERTIFICATE ISSUED
PURSUANT TO THAT APPLICATION AS BEING UNLIMITED AS TO TIME.  PP. 174
176. 

SUN OIL CO. V. FEDERAL POWER COMMISSION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS MANY OF THE SAME ISSUES AS SUNRAY MID-CONTINENT
OIL CO. V. FEDERAL POWER COMM'N, ANTE, P. 137.  PETITIONER, SUN OIL
COMPANY, IS AN INDEPENDENT PRODUCER MAKING SALES OF NATURAL GAS TO
TRANSMISSION COMPANIES IN INTERSTATE COMMERCE FOR ULTIMATE RESALE TO
THE PUBLIC.  IN 1947 IT ENTERED INTO A CONTRACT WITH THE SOUTHERN
NATURAL GAS COMPANY, A TRANSMISSION COMPANY, FOR THE SALE OF NATURAL
GAS WHICH PETITIONER CONTROLLED IN THE GWINVILLE GAS FIELD IN JEFFERSON
DAVIS AND SIMPSON COUNTIES, MISSISSIPPI.  THE TERM OF THE CONTRACT WAS
10 YEARS AND THE SALES PRICE WAS ROUGHLY EIGHT CENTS PER MCF. 

AFTER THIS COURT'S DECISIONS IN PHILLIPS PETROLEUM CO. V. WISCONSIN,
347 U.S. 672, ON JUNE 7, 1954, THE COMMISSION, IN A SERIES OF ORDERS,
REQUIRED INDEPENDENT PRODUCERS ENGAGING IN JURISDICTIONAL SALES ON OR
AFTER THE DATE OF THE DECISION TO APPLY FOR CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY PURSUANT TO SEC. 7(C) OF THE NATURAL GAS
ACT.  (FN1)  UNDER PROTEST, PETITIONER APPLIED FOR A CERTIFICATE
"AUTHORIZING THE SALE OF NATURAL GAS IN THE CIRCUMSTANCES  ...
DESCRIBED" IN ITS APPLICATION.  THE DESCRIBED CIRCUMSTANCES CONSISTED
SIMPLY OF A REFERENCE TO ITS CONTRACT WITH SOUTHERN NATURAL, WHICH WAS
AT THE SAME TIME SUBMITTED BY PETITIONER AS ITS RATE SCHEDULE.  IN AN
ABBREVIATED AND CONSOLIDATED PROCEEDING DISPOSING OF OVER 100 SEPARATE
DOCKET CERTIFICATE APPLICATIONS FROM 40-ODD INDEPENDENT PRODUCERS,
SCATTERED FROM COLORADO AND NEW MEXICO TO WEST VIRGINIA, THE COMMISSION
ON MAY 28, 1956, ORDERED ISSUED TO PETITIONER AND EACH OF THE OTHER
APPLICANTS A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, IN THE
TERMS SET OUT IN THE MARGIN.  (FN2)  PETITIONER'S CONTRACT-RATE
SCHEDULE WAS ACCEPTED AS ITS FPC GAS RATE SCHEDULE NO. 55. 

THE 1947 CONTRACT BETWEEN PETITIONER AND SOUTHERN NATURAL EXPIRED ON
AUGUST 26, 1957.  THE PARTIES HOWEVER ENTERED INTO A NEW 20-YEAR
CONTRACT FOR CONTINUED SALE OF GAS FROM THE SAME FIELD, COMMENCING ON
SEPTEMBER 3, 1957.  THE CONTRACT CALLED FOR AN INITIAL PRICE INCREASE
OF ROUGHLY 150 PER CENT, TO 20 CENTS PER MCF.  (FN3)  PETITIONER TOOK
THE VIEW THAT THE CERTIFICATE IT HAD RECEIVED IN 1956 WAS LIMITED IN
TERM TO THE DURATION OF THE OLD CONTRACT.  IT ACCORDINGLY FILED AN
APPLICATION FOR A NEW CERTIFICATE COVERING THE NEW CONTRACT, AND FILED
THE NEW CONTRACT AS AN INITIAL RATE SCHEDULE UNDER THE NEW CERTIFICATE,
PURSUANT TO SEC. 5 OF THE ACT.  (FN4)  THE COMMISSION, IN A LETTER
ORDER OF SEPTEMBER 12, 1957, REJECTED THE CERTIFICATE APPLICATION AS
DUPLICATIVE OF PETITIONER'S EXISTING CERTIFICATE TO MAKE SALES FROM THE
FIELD IN QUESTION, AND REJECTED THE RATE-SCHEDULE FILING ON THE GROUND
THAT THE PURPORTED INITIAL RATE SCHEDULE WAS ACTUALLY A CHANGE IN ITS
EXISTING SCHEDULE NO. 55.  A MOTION FOR RECONSIDERATION WAS LATER
DENIED; AND AT THE SAME TIME THE COMMISSION ORDERED SUSPENDED, UNDER
SEC. 4(E) OF THE ACT, (FN5) THE EFFECTIVENESS OF THE RATES IN THE NEW
CONTRACT, WHICH PETITIONER HAD, AFTER THEIR REJECTION AS AN INITIAL
RATE SCHEDULE, FILED UNDER PROTEST AS RATE CHANGES PURSUANT TO SEC.
4(D).  18 F.P.C. 609, 611.  AFTER AN APPLICATION FOR REHEARING OF THE
SUSPENSION ORDER WAS REJECTED, PETITIONER PETITIONED FOR REVIEW OF ALL
THESE ORDERS OF THE COMMISSION IN THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT.  (FN6)  THAT COURT AFFIRMED, BY A DIVIDED VOTE.  266 F.2D
222.  WE GRANTED CERTIORARI.  361 U.S. 880. 

PETITIONER'S CONTENTION HERE, AS IT WAS BELOW, IS THAT THE INITIAL
CERTIFICATE IT OBTAINED IN 1956 WAS TO REMAIN IN EFFECT ONLY DURING THE
LIFE OF THE 1947 CONTRACT.  THIS IN ITS VIEW WOULD LEAVE IT FREE TO
DISCONTINUE INTERSTATE SALES AFTER THE 1957 EXPIRATION OF THE CONTRACT,
OR TO APPLY FOR A NEW CERTIFICATE FOR NEW SALES, AND, NOT
UNIMPORTANTLY, FILE THE NEW SALES CONTRACT AS AN INITIAL RATE SCHEDULE
THEREUNDER RATHER THAN AS A RATE CHANGE.  WE REJECT THIS CONTENTION AND
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FIRST.  THE MAJOR PART OF PETITIONER'S ARGUMENT IS BASED ON A WANT OF
AUTHORITY IN THE COMMISSION, OVER OBJECTION, TO GRANT AN INDEPENDENT
PRODUCER A CERTIFICATE FOR A LONGER DURATION THAN THE TERM OF A SALES
CONTRACT WHICH ITS APPLICATION SEEKS PERMISSION TO FULFILL.  TO BE
SURE, IF THE COMMISSION HAD NO SUCH AUTHORITY, WE MIGHT TAKE PAINS TO
READ THE PETITIONER'S APPLICATION AS SEEKING A CERTIFICATE SO LIMITED
IN TIME, THOUGH, AS COMPARED WITH SUNRAY'S IN THE COMPANION CASE, IT IS
HIGHLY INEXPLICIT AS TO ITS DESIRE THAT ONLY A TERM CERTIFICATE BE
ISSUED.  BUT WE HAVE HELD TODAY IN THE SUNRAY CASE, ANTE, P. 137, THAT
IN THESE CIRCUMSTANCES THE COMMISSION HAS AUTHORITY TO TENDER A
PERMANENT CERTIFICATE UNDER AN APPLICATION FOR A TERM CERTIFICATE; AND
ACCORDINGLY THIS KEYSTONE OF PETITIONER'S ARGUMENT FALLS. 

SECOND.  OF COURSE, IF, DESPITE ITS AUTHORITY TO GRANT A PERMANENT
CERTIFICATE, THE COMMISSION HAD IN 1956 ACTUALLY GRANTED A TERM
CERTIFICATE TO PETITIONER, PETITIONER WOULD AFTER THE TERM HAVE BEEN
FREE TO APPLY FOR A NEW CERTIFICATE TO AUTHORIZE THE SALE UNDER THE NEW
CONTRACT.  BUT WE AGREE WITH THE COMMISSION THAT THE 1956 CERTIFICATE
WAS A PERMANENT ONE.  THE APPLICATION ITSELF, UNDER THE CONSTRUCTION WE
HAVE GIVEN THE STATUTE IN SUNRAY, DID NOT WITH ANY EXPLICITNESS ASK FOR
A LIMITED CERTIFICATE.  IT ASKED FOR ONE "AUTHORIZING THE SALE OF
NATURAL GAS" UNDER THE 1947 CONTRACT; BUT AS WE SAID IN SUNRAY, A
PERMANENT CERTIFICATE WOULD DO THAT.  SEE, ANTE, P. 149.  AND THE
CERTIFICATE ISSUED MAKES NO REFERENCE TO ANY LIMITATION OF TIME.  THIS
IS IN CONTRAST WITH EXPLICIT REFERENCES TO THE LIMITATION IN THOSE
INSTANCES WHERE THE COMMISSION HAD PREVIOUSLY ISSUED TERM
CERTIFICATES.  (FN7)  THE COMMISSION'S ORDER, WHICH BLANKETED THE MANY
APPLICATIONS BEFORE IT IN THE MASS PROCEEDING, IS NO MORE EXPLICIT
ABOUT LIMITATION THAN THE APPLICATION, AND REFERS, IN FACT, TO THE
CERTIFICATE AS BOTH "AUTHORIZING THE SALE" OF NATURAL GAS, AND
AUTHORIZING A "SERVICE," WHICH ACCORDS WITH OUR CONSTRUCTION OF SEC.
7(E) IN SUNRAY.  UNDER THESE CIRCUMSTANCES WE WOULD HARDLY SEE ANY
BASIS FOR OVERTURNING THE COMMISSION'S VIEW THAT NO LIMITATION AS TO
TIME WAS IMPLIED.  CF. ANDREW G. NELSON, INC., V. UNITED STATES, 355
U.S. 554, 560. 

MOREOVER, IF THERE WERE ANY DOUBT AS TO THE MATTER, IT WOULD BE
REMOVED BY THE FACT THAT THE BATCH OF CERTIFICATES CONTAINING
PETITIONER'S WAS ISSUED AT A TIME WHEN THE COMMISSION WAS ASSERTING
THAT IT LACKED EVEN THE POWER TO ISSUE A TERM CERTIFICATE.  THE
CERTIFICATE IN QUESTION WAS ISSUED MAY 28, 1956.  THE COMMISSION HAD
TAKEN THE POSITION THAT IT LACKED SUCH AUTHORITY ON JULY 25, 1955, IN
SUNRAY OIL CORP., 14 F.P.C. 877.  IT WAS NOT UNTIL OCTOBER 29, 1956,
THAT JUDICIAL REJECTION OF THE COMMISSION'S POSITION OCCURRED.  (FN8)
SUNRAY MID-CONTINENT OIL CO. V. FEDERAL POWER COMM'N, 239 F.2D 97,
REVERSED ON OTHER GROUNDS, 353 U.S. 944.  NOTHING IN PETITIONER'S
APPLICATION SHOWS AN ATTEMPT TO TAKE ISSUE WITH THAT CONCEPTION OF THE
COMMISSION, WHICH OF COURSE WOULD MEAN THAT EVERY CERTIFICATE GRANTED
UNDER ITS INFLUENCE WOULD BE INTENDED TO BE PERMANENT.  IT WOULD
SURPASS BELIEF TO SAY THAT UNDER THESE CIRCUMSTANCES THE COMMISSION
TENDERED AND THE APPLICANTS RECEIVED THESE CERTIFICATES UNDER THE
ASSUMPTION THAT THEY WERE LIMITED IN TIME TO THE TERMS OF THE CONTRACTS
ON WHICH THE APPLICATIONS WERE BASED.  AFFIRMED. 

FN1  THE PERTINENT PROVISIONS OF SEC. 7(C) ARE SET FORTH IN OUR
OPINION IN THE SUNRAY CASE, ANTE, P. 149, N. 15. 

FN2  "THE COMMISSION ORDERS: 

"(A)  A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY BE AND IS
HEREBY ISSUED, UPON THE TERMS AND CONDITIONS OF THIS ORDER, AUTHORIZING
THE SALE BY APPLICANT OF NATURAL GAS IN INTERSTATE COMMERCE FOR RESALE,
TOGETHER WITH THE OPERATION OF ANY FACILITIES, SUBJECT TO THE
JURISDICTION OF THE COMMISSION, USED FOR THE SALE OF NATURAL GAS IN
INTERSTATE COMMERCE, AS HEREINBEFORE DESCRIBED AND AS MORE FULLY
DESCRIBED IN THE APPLICATION AND EXHIBITS IN THIS PROCEEDING. 

"(B)  THE CERTIFICATE ISSUED HEREIN SHALL BE DEEMED ACCEPTED AND OF
FULL FORCE AND EFFECT, UNLESS REFUSED IN WRITING AND UNDER OATH BY
APPLICANT WITHIN 30 DAYS FROM ISSUANCE OF THIS ORDER. 

"(C)  THE CERTIFICATE IS NOT TRANSFERABLE AND SHALL BE EFFECTIVE ONLY
SO LONG AS APPLICANT CONTINUES THE ACTS OR OPERATIONS HEREBY AUTHORIZED
IN ACCORDANCE WITH THE PROVISIONS OF THE NATURAL GAS ACT, AND THE
APPLICABLE RULES, REGULATIONS AND ORDERS OF THE COMMISSION. 

"(D)  THE GRANT OF THE CERTIFICATE HEREIN SHALL NOT BE CONSTRUED AS A
WAIVER OF THE REQUIREMENTS OF SECTION 4 OF THE NATURAL GAS ACT, OR OF
REQUIRING THE FILING OF RATE SCHEDULES FOR THE SERVICE HEREIN
AUTHORIZED, AND IS WITHOUT PREJUDICE TO ANY FINDINGS OR ORDERS WHICH
HAVE BEEN OR MAY HEREAFTER BE MADE BY THE COMMISSION IN ANY PROCEEDING
NOW PENDING OR HEREAFTER INSTITUTED BY OR AGAINST THE APPLICANT. 
FURTHER, OUR ACTION IN THIS PROCEEDING SHALL NOT FORECLOSE NOR
PREJUDICE ANY FUTURE PROCEEDINGS OR OBJECTION RELATING TO THE OPERATION
OF ANY PRICE OR RELATED PROVISION IN THE GAS PURCHASE CONTRACTS HEREIN
INVOLVED." 

FN3  THERE ARE SLIGHT DISCREPANCIES IN COMPARISON BETWEEN THE OLD AND
NEW RATES, DUE TO THE FACT THAT THEY ARE COMPUTED ON SOMEWHAT DIFFERENT
PRESSURE BASES.  THE COMMISSION STATES THAT GIVING EFFECT TO THE
DIFFERENCE WOULD SOMEWHAT INCREASE THE SPREAD BETWEEN THE OLD AND THE
NEW RATES. 

FN4  FOR THE PERTINENT PROVISIONS, SEE THE SUNRAY OPINION, ANTE, P.
144, N. 11. 

FN5  FOR THE PROVISIONS, SEE THE SUNRAY OPINION, ANTE, P. 145, N.
13. 

FN6  THE COMMISSION TAKES THE POSITION THAT AN ORDER SUSPENDING A
RATE CHANGE UNDER SEC. 4(E) IS NOT DIRECTLY REVIEWABLE IN THE COURT OF
APPEALS.  BUT SINCE THE VERY SAME ISSUES ARE PRESENTED IN THIS CASE BY
THE COMMISSION'S REJECTION OF THE APPLICATION FOR A NEW CERTIFICATE,
AND ITS REJECTION OF THE FILING OF THE 1957 CONTRACT RATE AS AN INITIAL
RATE UNDER SEC. 4(C), WHICH ORDERS ARE CONCEDEDLY REVIEWABLE IN THE
COURT OF APPEALS, ALL THE CONTESTED ISSUES RAISED BEFORE THE COMMISSION
WERE PROPERLY SUBJECT TO REVIEW IN THE PROCEEDINGS BELOW AND HERE, AS
THE COMMISSION CONCEDES.  IF THE COMMISSION WAS IN ERROR IN REJECTING
THE APPLICATION FOR A NEW CERTIFICATE AND THE PURPORTED INITIAL RATE
FILING, THE SEC. 4(E) RATE CHANGE FILING, WHICH THE PETITIONER MADE
UNDER PROTEST, DOUBTLESS WOULD BE WITHDRAW. 

FN7  SEE, E.G., LOUISIANA-NEVADA TRANSIT CO., 2 F.P.C. 546, 549 (10
YEARS); RAY PHEBUS, 2 F.P.C. 1044, 1045 (8 YEARS); SOUTHERN NATURAL GAS
CO., 8 F.P.C. 688, 689 (1 YEAR). 

FN8  WHILE THE COURT OF APPEALS THERE AFFIRMED THE COMMISSION'S ORDER
ON OTHER GROUNDS FROM THOSE ON WHICH IT HAD PROCEEDED - FOR WHICH
ACTION THE COURT OF APPEALS' JUDGMENT WAS REVERSED HERE - THE
COMMISSION HAD, BEFORE THE COURT OF APPEALS, MAINTAINED ITS POSITION
THAT IT WAS WITHOUT AUTHORITY TO GRANT A LIMITED TERM CERTIFICATE.  239
F.2D, AT 100, N. 7.  IT ABANDONED THAT POSITION WHEN APPLICATION FOR
CERTIORARI WAS MADE HERE.  353 U.S. 944. 

(FOR OPINION OF MR. JUSTICE FRANKFURTER, CONCURRING IN MR. JUSTICE
HARLAN'S DISSENTING OPINION, SEE ANTE, P. 159.) 

(FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE
FRANKFURTER, MR. JUSTICE WHITTAKER AND MR. JUSTICE STEWART, SEE ANTE,
P. 159.) 
..END :














WOLFE V. NORTH CAROLINA 364 U.S. 177 


NO. 7.  ARGUED OCTOBER 19-20, 1959 - DECIDED JUNE 27, 1960 - 248 N.C.
485, 103 S.E.2D 846, APPEAL DISMISSED. 


APPELLANTS AND OTHER NEGROES OBTAINED FROM A FEDERAL DISTRICT COURT AN
INJUNCTION AGAINST THE OPERATION ON A RACIALLY DISCRIMINATORY BASIS OF
A GOLF COURSE OWNED BY A NORTH CAROLINA CITY BUT LEASED AND OPERATED BY
A CLUB.  APPELLANTS HAD PREVIOUSLY BEEN CHARGED WITH, AND WERE
SUBSEQUENTLY TRIED IN A STATE COURT FOR, VIOLATING A STATE CRIMINAL
TRESPASS STATUTE BY PERSISITNG IN PLAYING ON THE COURSE AFTER HAVING
BEEN DENIED PERMISSION TO DO SO AND AFTER HAVING BEEN ORDERED TO
LEAVE.  THE JURY WAS CLEARLY INSTRUCTED THAT APPELLANTS COULD NOT BE
FOUND GUILTY IF THEY WERE EXCLUDED BECAUSE OF THEIR RACE; BUT THEY WERE
CONVICTED.  AT THIS TRIAL, THE UNPUBLISHED FINDINGS AND JUDGMENT OF THE
FEDERAL COURT WERE OFFERED IN EVIDENCE BUT WERE EXCLUDED.  APPELLANTS
OMITTED THESE FACTS FROM THE RECORD ON APPEAL TO THE STATE SUPREME
COURT, WHEREIN THEY CONTENDED THAT, NOTWITHSTANDING THE JURY'S VERDICT,
THE SUPREMACY CLAUSE AND THE FOURTEENTH AMENDMENT REQUIRED A HOLDING
THAT THE FINDINGS AND JUDGMENT OF THE FEDERAL COURT CONCLUSIVELY
ESTABLISHED THAT THE CRIMINAL TRESPASS STATUTE WAS USED TO ENFORCE A
PRACTICE OF RACIAL DISCRIMINATION BY A STATE AGENCY.  THE STATE SUPREME
COURT DECLINED TO RULE ON THAT CONTENTION ON THE GROUND THAT, UNDER
STATE LAW, THE FINDINGS AND JUDGMENT OF THE FEDERAL COURT WERE NOT
BEFORE IT, AND IT AFFIRMED THE CONVICTIONS.  HELD:  AN APPEAL TO THIS
COURT IS DISMISSED AND CERTIORARI IS DENIED FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION, SINCE THE JUDGMENT OF THE STATE SUPREME COURT WAS
INDEPENDENTLY AND ADEQUATELY SUPPORTED ON STATE PROCEDURAL GROUNDS. 
PP. 178-196. 

(A)  EVEN IF THE JUDGMENT AND FINDINGS OF THE FEDERAL COURT WERE
OFFERED IN EVIDENCE AND EXCLUDED BY THE TRIAL JUDGE, THESE FACTS DID
NOT APPEAR IN THE RECORD FILED BY APPELLANTS IN THE STATE SUPREME COURT
AND, THEREFORE, WERE NOT PROPERLY COGNIZABLE BY THAT COURT UNDER STATE
PRACTICE.  PP. 185-187. 

(B)  IN DECLINING TO GO OUTSIDE THE RECORD IN ORDER TO ASCERTAIN THE
TRUE FACTS, THE STATE SUPREME COURT DID NOT DISCRIMINATE AGAINST
APPELLANTS; IT ACTED IN ACCORDANCE WITH A PRACTICE WHICH IT HAD
FOLLOWED CONSISTENTLY FOR MANY YEARS IN CONSIDERING APPEALS IN CRIMINAL
CASES.  PP. 187-192. 

(C)  THE FEDERAL COURT'S FINDINGS AND JUDGMENT IN THE CIVIL CASE WERE
NOT PROPERLY BROUGHT BEFORE THE STATE COURTS BY APPELLANTS' MOTION TO
QUASH AT THE OUTSET OF THE TRIAL, WHICH ALLEGED THE EFFECT OF THE
FEDERAL COURT'S PROCEEDINGS AND REQUESTED LEAVE TO OFFER THE RECORD OF
THAT COURT IN EVIDENCE IN SUPPORT OF THE MOTION, SINCE THE SETTLED
STATE PRACTICE DOES NOT PERMIT CONSIDERATION OF EXTRANEOUS EVIDENCE IN
PASSING UPON SUCH A MOTION.  PP. 192-193. 

(D)  UNDER ESTABLISHED STATE PRACTICE, THE FEDERAL COURT'S FINDINGS
AND JUDGMENT IN THE CIVIL CASE WERE NOT PROPERLY BROUGHT BEFORE THE
STATE COURTS BY APPELLANTS' MOTION AT THE END OF THE TRIAL TO SET ASIDE
THE VERDICT.  PP. 193-194. 

(E)  THE STATE SUPREME COURT DID NOT ARBITRARILY DENY APPELLANTS AN
OPPORTUNITY TO PRESENT THEIR FEDERAL CLAIM.  PP. 194-195. 

WOLFE ET AL. V. NORTH CAROLINA. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS WERE CONVICTED OF VIOLATING A NORTH CAROLINA CRIMINAL
TRESPASS STATUTE, (FN1) AND THEIR CONVICTIONS WERE UPHELD BY THE
SUPREME COURT OF NORTH CAROLINA, 248 N.C. 485, 103 S.E.2D 846.  THIS
APPEAL, GROUNDED ON 28 U.S.C. SEC. 1257(2), (FN2) ATTACKS THE
CONSTITUTIONAL VALIDITY OF THE STATUTE AS APPLIED IN THIS CASE. 
BECAUSE OF DOUBT AS TO WHETHER ANY SUBSTANTIAL FEDERAL QUESTION WAS
PRESENTED TO OR DECIDED BY THE STATE COURTS, WE POSTPONED FURTHER
CONSIDERATION OF THE QUESTION OF JURISDICTION UNTIL THE HEARING OF THE
CASE ON THE MERITS.  358 U.S. 925, 359 U.S. 951.  FOR REASONS TO BE
STATED, WE HAVE CONCLUDED THAT THE APPEAL MUST BE DISMISSED.  (FN3) 

THERE IS NO DISPUTE AS TO THE BASIC CIRCUMSTANCES WHICH LED TO THE
PROSECUTION AND ULTIMATE CONVICTION OF THE APPELLANTS.  IN DECEMBER,
1955, GILLESPIE PARK GOLD CLUB, INC., OPERATED AN 18-HOLD GOLD COURSE
ON LAND WHICH IT LEASED FROM THE CITY OF GREENSBORO, NORTH CAROLINA,
AND THE BOARD OF TRUSTEES OF THE GREENSBORO CITY ADMINISTRATIVE UNIT. 
THE BYLAWS OF THE LESSEE LIMITED THE USE OF THE GOLF COURSE TO ITS
"MEMBERS" AND PERSONS IN CERTAIN OTHER SPECIFICALLY RESTRICTED
CATEGORIES.  (FN4)  ON DECEMBER 7, 1955, THE APPELLANTS, WHO ARE
NEGROES, ENTERED THE CLUB'S GOLF SHOP AND REQUESTED PERMISSION TO PLAY
ON THE COURSE.  THEIR REQUEST WAS REFUSED.  NEVERTHELESS, AFTER PLACING
SOME MONEY ON A TABLE IN THE GOLF SHOP, THE APPELLANTS PROCEEDED TO THE
COURSE AND TEED OFF.  AFTER THEY HAD PLAYED SEVERAL HOLES THE MANAGER
OF THE GOLD COURSE ORDERED THEM TO LEAVE.   THEY REFUSED.  THE MANAGER
THEN SUMMONED A DEPUTY SHERIFF, AND, AFTER THE APPELLANTS WERE AGAIN
ORDERED TO LEAVE THE COURSE AND THEY HAD AGAIN REFUSED, THEY WERE
ARRESTED UPON WARRANTS SWORN TO BY THE MANAGER. 

THE APPELLANTS WERE TRIED AND CONVICTED OF VIOLATING THE STATE
CRIMINAL TRESPASS STATUTE.  PENDING THEIR APPEAL TO THE SUPREME COURT
OF NORTH CAROLINA THEY AND OTHERS COMMENCED AN ACTION AGAINST THE CITY
OF GREENSBORO, THE GREENSBORO BOARD OF EDUCATION, AND THE GILLESPIE
PARK GOLF CLUB, INC., IN THE FEDERAL DISTRICT COURT FOR THE MIDDLE
DISTRICT OF NORTH CAROLINA, ASKING FOR A DECLARATORY JUDGMENT AND AN
INJUNCTION FORBIDDING THE DEFENDANTS FROM OPERATING THE GOLF COURSE ON
A RACIALLY DISCRIMINATORY BASIS.  THE FEDERAL COURT GRANTED THE
INJUNCTION.  SIMKINS V. CITY OF GREENSBORO, 149 F. SUPP. 562.  ITS
JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS FOR THE FOURTH CIRCUIT ON
JUNE 28, 1957.  CITY OF GREENSBORO V. SIMKINS, 246 F.2D 425.  ON THE
SAME DATE THE SUPREME COURT OF NORTH CAROLINA, ACTING ON THE APPEAL
FROM THE CRIMINAL CONVICTIONS IN THE STATE COURT, HELD THAT THERE HAD
BEEN A FATAL VARIANCE IN AMENDMENTS TO THE WARRANTS UNDER WHICH THE
APPELLANTS HAD BEEN TRIED, AND ARRESTED THE JUDGMENTS AGAINST THEM. 
STATE V. COOKE, 246 N.C. 518, 98 S.E.2D 885. 

THE APPELLANTS WERE AGAIN TRIED DE NOVO IN THE SUPERIOR COURT OF
GUILFORD COUNTY, NORTH CAROLINA, FOR VIOLATING THE STATE CRIMINAL
TRESPASS STATUTE.  AT THE OUTSET THEY MADE A MOTION TO QUASH, WHICH WAS
DENIED.  THE STATE PRESENTED EVIDENCE AS TO WHAT HAD HAPPENED ON THE
GOLF COURSE ON DECEMBER 7, 1955.  AT THE CONCLUSION OF THE EVIDENCE THE
TRIAL JUDGE INSTRUCTED THE JURY EXPLICITLY AND AT LENGTH THAT THE
DEFENDANTS COULD NOT BE CONVICTED IF THEY HAD BEEN EXCLUDED FROM THE
GOLF COURSE BECAUSE OF THEIR RACE.  SPECIFICALLY, THE TRIAL JUDGE
CHARGED THE JURY THAT "  ...  THE LAW WOULD NOT PERMIT THE CITY AND,
THEREFORE, WOULD NOT PERMIT ITS LESSEE, THE GILLESPIE PARK GOLD CLUB,
INC., TO DISCRIMINATE AGAINST ANY CITIZEN OF GREENSBORO IN THE
MAINTENANCE AND OPERATION AND USE OF A GOLF COURSE.  IT COULD NOT
EXCLUDE EITHER DEFENDANT BECAUSE OF HIS RACE OR FOR ANY OTHER REASON
APPLICABLE TO THEM ALONE; THAT IS TO SAY, THEY WERE ENTITLED TO THE
SAME RIGHTS TO USE THE GOLF COURSE AS ANY OTHER CITIZEN OF GREENSBORO
WOULD BE PROVIDED THEY COMPLIED WITH THE REASONABLE RULES AND
REGULATIONS FOR THE OPERATION AND MAINTENANCE AND USE OF THE GOLF
COURSE.  THEY WOULD NOT BE REQUIRED TO COMPLY WITH ANY UNREASONABLE
RULES AND REGULATIONS FOR THE OPERATION AND MAINTENANCE AND USE OF THE
GOLF COURSE."  (FN5)  THE JURY RETURNED A VERDICT OF GUILTY.  A MOTION
TO SET ASIDE THE VERDICT WAS DENIED. 

THE SUPREME COURT OF NORTH CAROLINA AFFIRMED THE CONVICTIONS.  IN
DOING SO THE COURT RECOGNIZED THAT "SINCE THE OPERATOR OF THE GOLF CLUB
WAS CHARGED WITH MAKING A PUBLIC OR SEMIPUBLIC USE OF THE PROPERTY, IT
COULD NOT DENY THE USE OF THE PROPERTY TO CITIZENS SIMPLY BECAUSE THEY
WERE NEGROES ...  .  SINCE THE DECISION IN BROWN V. BOARD OF EDUCATION,
347 U.S. 483  ...  SEPARATION OF THE RACES IN THE USE OF PUBLIC
PROPERTY CANNOT BE REQUIRED."  248 N.C., AT 491, 103 S.E.2D 850-851. 
THE COURT QUOTED WITH APPROVAL THE TRIAL JUDGE'S INSTRUCTIONS TO THE
JURY ON THIS ASPECT OF THE CASE.  IT IS FROM THIS JUDGMENT OF THE
SUPREME COURT OF NORTH CAROLINA THAT THE PRESENT APPEAL WAS TAKEN. 

THE APPELLANTS CONTEND THAT THE SUPREMACY CLAUSE AND THE FOURTEENTH
AMENDMENT REQUIRED THE NORTH CAROLINA COURT TO HOLD THAT THE FINDINGS
OF FACT AND JUDGMENT OF THE FEDERAL COURT IN THE CIVIL CASE OF SIMKINS
V. CITY OF GREENSBORO, 149 F. SUPP. 562, CONCLUSIVELY ESTABLISHED,
CONTRARY TO THE VERDICT OF THE JURY IN THIS CASE, THAT THE STATE
STATUTE WAS USED HERE TO ENFORCE A PRACTICE OF RACIAL DISCRIMINATION BY
A STATE AGENCY.  THE SUPREME COURT OF NORTH CAROLINA TOOK COGNIZANCE OF
THE FEDERAL COURT'S PUBLISHED OPINION IN THE SIMKINS CASE AND COMMENTED
WITH RESPECT TO IT: 

"EXAMINING THE OPINION, IT APPEARS THAT TEN PEOPLE, SIX OF WHOM ARE
DEFENDANTS IN THIS ACTION, SOUGHT INJUNCTIVE RELIEF ON THE ASSERTION
THAT NEGROES WERE DISCRIMINATED AGAINST AND WERE NOT PERMITTED TO PLAY
ON WHAT IS PROBABLY THE PROPERTY INVOLVED IN THIS CASE.  WE DO NOT KNOW
WHAT EVIDENCE PLAINTIFFS PRODUCED IN THAT ACTION.  IT IS, HOWEVER,
APPARENT FROM THE OPINION THAT MUCH EVIDENCE WAS PRESENTED TO JUDGE
HAYES (IN THE FEDERAL DISTRICT COURT) WHICH WAS NOT BEFORE THE SUPERIOR
COURT WHEN DEFENDANTS WERE TRIED.  IT WOULD APPEAR FROM THE OPINION
THAT THE ENTRY INVOLVED IN THIS CASE WAS ONE INCIDENT ON WHICH
PLAINTIFFS THERE RELIED TO SUPPORT THEIR ASSERTION OF UNLAWFUL
DISCRIMINATION, BUT IT IS MANIFEST FROM THE OPINION THAT THAT WAS NOT
ALL OF THE EVIDENCE WHICH JUDGE HAYES HAD.  WE ARE LEFT IN THE DARK AS
TO OTHER INCIDENTS HAPPENING PRIOR OR SUBSEQUENT TO THE CONDUCT HERE
COMPLAINED OF, WHICH MIGHT TEND TO SUPPORT THE ASSERTION OF UNLAWFUL
DISCRIMINATION.  ON THE FACTS PRESENTED TO HIM, JUDGE HAYES ISSUED AN
ORDER ENJOINING RACIAL DISCRIMINATION IN THE USE OF THE GOLF COURSE. 
PRESUMABLY THAT ORDER HAS AND IS BEING COMPLIED WITH.   NO ASSERTION IS
HERE MADE TO THE CONTRARY."  248 N.C., AT 493, 103 S.E.2D, AT 852. 

THE NORTH CAROLINA COURT DID NOT DECIDE, HOWEVER, WHETHER IT WAS
BOUND UNDER THE CONSTITUTION TO GIVE TO THE FEDERAL COURT'S UNPUBLISHED
FINDINGS AND JUDGMENT IN THE PRIOR CIVIL ACTION THE CONCLUSIVE EFFECT
URGED BY THE APPELLANTS IN THE PRESENT CRIMINAL CASE, BECAUSE IT HELD
THAT AS A MATTER OF STATE LAW THE FINDINGS AND JUDGMENT WERE NOT BEFORE
IT.  (FN6) 

IT IS SETTLED THAT A STATE COURT MAY NOT AVOID DECIDING FEDERAL
QUESTIONS AND THUS DEFEAT THE JURISDICTION OF THIS COURT BY PUTTING
FORWARD NONFEDERAL GROUNDS OF DECISION WHICH ARE WITHOUT ANY FAIR OR
SUBSTANTIAL SUPPORT.  N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 455; STAUB
V. CITY OF BAXLEY, 355 U.S. 313, 318-320; WARD V. LOVE COUNTY, 253 U.S.
17, 22.  INVOKING THIS PRINCIPLE, THE APPELLANTS URGE THAT THE
INDEPENDENT STATE GROUNDS RELIED UPON FOR DECISION BY THE SUPREME COURT
OF NORTH CAROLINA WERE UNTENABLE AND INADEQUATE, AND THAT THE QUESTION
WHETHER THE FEDERAL CONSTITUTION COMPELLED THAT THE FINDINGS AND
JUDGMENT IN THE FEDERAL CASE OPERATED AS A COLLATERAL ESTOPPEL IN THIS
CASE WAS PROPERLY BEFORE THE STATE COURT FOR DECISION.  IT THUS BECOMES
THIS COURT'S DUTY TO ASCERTAIN WHETHER THE PROCEDURAL GROUNDS RELIED
UPON BY THE STATE COURT INDEPENDENTLY AND ADEQUATELY SUPPORT ITS
JUDGMENT. 

THE SUPREME COURT OF NORTH CAROLINA STATED IN ITS OPINION OF
AFFIRMANCE THAT THE "DEFENDANTS FOR REASONS BEST KNOWN TO THEMSELVES
ELECTED NOT TO OFFER IN EVIDENCE THE RECORD IN THE FEDERAL COURT
CASE."  248 N.C., AT 493, 103 S.E.2D, AT 852.  THIS STATEMENT IS BORNE
OUT BY THE RECORD BEFORE THAT COURT, (FN7) THE SO-CALLED "CASE ON
APPEAL" PREPARED BY THE APPELLANTS THEMSELVES.  (FN8)  THE APPELLANTS
NOW ADVISE US THAT IN FACT THE FEDERAL COURT'S FINDINGS AND JUDGMENT
WERE OFFERED IN EVIDENCE AT THE TRIAL AND EXCLUDED BY THE TRIAL JUDGE. 
THEY ASCRIBE TO "SOME QUIRK OF INADVERTENCE" THEIR FAILURE TO INCLUDE
IN THEIR "CASE ON APPEAL" THE PART OF THE TRANSCRIPT WHICH WOULD SO
INDICATE.  (FN9)  AND THEY ASSERT THAT, SINCE THE SUPREME COURT OF
NORTH CAROLINA HAS "WIDE DISCRETION" TO GO OUTSIDE THE RECORD IN ORDER
TO GET AT THE TRUE FACTS, THE COURT'S REFUSAL TO DO SO HERE AMOUNTED TO
A REFUSAL TO EXERCISE ITS DISCRETION "TO ENTERTAIN A CONSTITUTIONAL
CLAIM WHILE PASSING UPON KINDRED ISSUES RAISED IN THE SAME MANNER." 
WILLIAMS V. GEORGIA, 349 U.S. 375, 383. 

THE DIFFICULTY WITH THIS ARGUMENT, BEYOND THE FACT THAT THE
APPELLANTS APPARENTLY DID NOT ASK THE NORTH CAROLINA COURT TO GO
OUTSIDE THE RECORD FOR THIS PURPOSE, IS THAT THAT COURT HAS
CONSISTENTLY AND REPEATEDLY HELD IN CRIMINAL CASES THAT IT WILL NOT
MAKE INDEPENDENT INQUIRY TO DETERMINE THE ACCURACY OF THE RECORD BEFORE
IT.  (FN10)  ILLUSTRATIVE DECISIONS ARE:  STATE V. ROBINSON, 229 N.C.
647, 50 S.E.2D 740; STATE V. WOLFE, 227 N.C. 461, 42 S.E.2D 515; STATE
V. GAUSE, 227 N.C. 26, 40 S.E.2D 463; STATE V. STIWINTER, 211 N.C. 278,
189 S.E. 868; STATE V. DEE, 214 N.C. 509, 199 S.E. 730; STATE V.
WEAVER, 228 N.C. 39, 44 S.E.2D 360; STATE V. DAVIS, 231 N.C.  664, 58
S.E.2D 355; STATE V. FRANKLIN, 248 N.C. 695, 104 S.E.2D 837. 

THUS IN THE ROBINSON CASE THE COURT REVERSED A CRIMINAL CONVICTION
FOR INSUFFICIENCY OF THE EVIDENCE, ALTHOUGH NOTING THAT: 

"THE COURT BELOW, IN ITS CHARGE  ... REFERRED TO  ...  INCRIMINATING
FACTS AND CIRCUMSTANCES WHICH DO NOT APPEAR IN THE TESTIMONY INCLUDED
IN THE RECORD BEFORE US.  THIS WOULD SEEM TO INDICATE THAT THE RECORD
FAILS TO INCLUDE ALL THE EVIDENCE OFFERED BY THE STATE. 

"BE THAT AS IT MAY, THE RECORD ON APPEAL IMPORTS VERITY, AND THIS
COURT IS BOUND THEREBY.  (CITING CASES.)  THIS IS TRUE EVEN THOUGH THE
CASE IS SETTLED BY COUNSEL (CITING CASES); AND NOT BY THE JUDGE (CITING
CASES)  ...  . 

"THE SUPREME COURT IS BOUND BY THE CASE ON APPEAL, CERTIFIED BY THE
CLERK OF THE SUPERIOR COURT, EVEN THOUGH THE TRIAL JUDGE HAS HAD NO
OPPORTUNITY TO REVIEW IT, AND MUST DECIDE QUESTIONS PRESENTED UPON THE
RECORD AS IT COMES HERE, WITHOUT INDULGING IN ASSUMPTIONS AS TO WHAT
MIGHT HAVE OCCURRED."  229 N.C., AT 649-650, 50 S.E.2D, AT 741-742. 

IN STATE V. WOLFE THE COURT REVERSED A CRIMINAL CONVICTION ON THE
GROUND OF ERROR IN THE TRIAL COURT'S INSTRUCTIONS TO THE JURY, ALTHOUGH
POINTING OUT THAT: 

"THE QUOTED EXCERPTS FROM THE CHARGE DO NOT REFLECT THE CLARITY OF
THOUGHT AND CONCISENESS OF STATEMENT USUALLY FOUND IN THE UTTERANCES OF
THE EMINENT AND EXPERIENCED JURIST WHO PRESIDED AT THE TRIAL BELOW  ...
.  EVEN SO, IT (THE RECORD) IS CERTIFIED AS THE CASE ON APPEAL.  WE
ARE BOUND THEREBY AND MUST DECIDE THE QUESTION PRESENTED UPON THE
RECORD AS IT COMES HERE, WITHOUT INDULGING IN ASSUMPTIONS AS TO WHAT
MIGHT HAVE OCCURRED."  227 N.C., AT 463, 42 S.E.2D, AT 516-517. 

IN THE GAUSE CASE THE COURT ALSO REVERSED A CONVICTION UPON THE
GROUND OF ERROR IN THE CHARGE, ALTHOUGH NOTING THAT: 

"DOUBTLESS THE USE OF THE WORDS 'GREATER WEIGHT OF EVIDENCE' INSTEAD
OF 'BEYOND REASONABLE DOUBT' WAS A SLIP OF THE TONGUE OR AN ERROR IN
TRANSCRIBING.  NEVERTHELESS, IT APPEARS IN THE RECORD, AND WE MUST
ACCEPT IT AS IT COMES TO US."  227 N.C., AT 30, 40 S.E.2D, AT 466. 

IN THE STIWINTER CASE, INVOLVING A SIMILAR ISSUE, THE COURT SAID: 

"WE ARE CONSTRAINED TO BELIEVE THAT THIS INSTRUCTION HAS BEEN
ERRONEOUSLY REPORTED, BUT IT IS HERE IN A RECORD DULY CERTIFIED  ...
WHICH IMPORTS VERITY, AND WE ARE BOUND BY IT."  211 N.C., AT 279, 189
S.E., AT 869. 

THE DEE CASE INVOLVED SIMILAR ISSUES.  THERE THE COURT NOTED: 

"IT IS SUGGESTED BY THE ATTORNEY-GENERAL THAT, IN ALL PROBABILITY, A
TYPOGRAPHICAL ERROR HAS CREPT INTO THE TRANSCRIPT AND THAT THE WORD
'DISINTERESTED' WAS USED WHERE THE WORD 'INTERESTED' APPEARS.  IN THIS
HE IS SUPPORTED BY A LETTER FROM THE JUDGE WHO PRESIDED AT THE TRIAL,
AND UPON THIS LETTER A MOTION FOR CERTIORARI TO CORRECT THE RECORD HAS
BEEN LODGED ON BEHALF OF THE STATE  ...  .  THE TRANSCRIPT IS NOT NOW
SUBJECT TO CHANGE OR CORRECTION.  STATE V. MOORE, 210 N.C., 686, 188
S.E., 421.  IT IMPORTS VERITY AND WE ARE BOUND BY IT  ...  .  'UNDER
C.S., 643, IF THE CASE ON APPEAL AS SERVED BY THE APPELLANT BE APPROVED
BY THE RESPONDENT OR APPELLEE, IT BECOMES THE CASE AND A PART OF THE
RECORD ON APPEAL, AND IN CONNECTION WITH THE RECORD PROPER, MAY ALONE
BE CONSIDERED IN DETERMINING THE RIGHTS OF THE PARTIES INTERESTED IN
THE APPEAL  ...  .  THE APPEAL MUST BE HEARD AND DETERMINED ON THE
AGREED CASE APPEARING IN THE RECORD.'"  214 N.C., AT 512, 199 S.E., AT
732.    IT IS THUS APPARENT THAT THE PRESENT CASE IS NOT OF A PATTERN
WITH WILLIAMS V. GEORGIA, SUPRA. EVEN IF THE NORTH CAROLINA SUPREME
COURT HAS POWER TO MAKE INDEPENDENT INQUIRY AS TO EVIDENCE PROFFERED IN
THE TRIAL COURT BUT NOT INCLUDED IN THE CASE ON APPEAL, ITS DECISIONS
MAKE CLEAR THAT IT HAS WITHOUT EXCEPTION REFUSED TO DO SO.  (FN11)
THIS IS NOT A CASE, THEREFORE, WHERE THE STATE COURT FAILED TO EXERCISE
DISCRETIONARY POWER ON BEHALF OF APPELLANTS'"FEDERAL RIGHTS" WHICH IT
HAD ON OTHER OCCASIONS EXERCISED IN FAVOR OF "KINDRED ISSUES."    THE
APPELLANTS CONTEND ADDITIONALLY THAT THEY BROUGHT THE FEDERAL COURT'S
FINDINGS AND JUDGMENT IN THE SIMKINS CASE BEFORE THE STATE COURTS IN
TWO OTHER WAYS:  (A) BY THEIR MOTION TO QUASH AT THE OUTSET OF THE
TRIAL, AND (B) BY THEIR MOTION TO SET ASIDE THE VERDICT AT THE TRIAL'S
CONCLUSION.  THE MOTION TO QUASH SET OUT THE EXISTENCE AND ALLEGED
EFFECT OF THE FEDERAL COURT PROCEEDINGS, AND REQUESTED LEAVE TO OFFER
IN EVIDENCE IN SUPPORT OF THE MOTION "THE FULL RECORD AND JUDGMENT ROLL
IN SAID CASE."  THE MOTION TO SET ASIDE THE VERDICT INCORPORATED BY
REFERENCE THE MOTION TO QUASH AND ALSO CONTAINED AN INDEPENDENT SUMMARY
OF THE FEDERAL COURT PROCEEDINGS, REQUESTING THE COURT TO TAKE JUDICIAL
NOTICE OF THE SAME.  BOTH MOTIONS WERE DENIED BY THE TRIAL COURT
WITHOUT OPINION. 

AS TO THE MOTION TO QUASH, THE SUPREME COURT OF NORTH CAROLINA
SUSTAINED THE TRIAL COURT'S RULING ON THE GROUND THAT THE "'COURT, IN
RULING ON THE MOTION, IS NOT PERMITTED TO CONSIDER EXTRANEOUS
EVIDENCE.  THEREFORE, WHEN THE DEFECT MUST BE ESTABLISHED BY EVIDENCE
ALIUNDE THE RECORD, THE MOTION MUST BE DENIED.'"  248 N.C., AT 489, 103
S.E.2D, AT 849.  IN UPHOLDING THE DENIAL OF THE SECOND MOTION, THE
SUPREME COURT OF NORTH CAROLINA DECLINED TO TAKE JUDICIAL NOTICE OF THE
FEDERAL COURT'S FINDINGS AND JUDGMENT, FOR REASONS DISCUSSED AT SOME
LENGTH IN ITS OPINION, AND CONCLUDED THAT THE APPELLANTS "WERE NOT, AS
A MATTER OF RIGHT, ENTITLED, TO HAVE THE VERDICT SET ASIDE."  248 N.C.,
AT 495, 103 S.E.2D, AT 854.  AN INDEPENDENT EXAMINATION OF NORTH
CAROLINA LAW CONVINCES US THAT THE STATE COURT IN BOTH INSTANCES WAS
FOLLOWING WELL-ESTABLISHED LOCAL PROCEDURAL RULES; IT DID NOT MAKE AN
AD HOC DETERMINATION OPERATING DISCRIMINATORILY AGAINST THESE
PARTICULAR LITIGANTS. 

AT LEAST SINCE THE DECISION IN STATE V. TURNER, 170 N.C. 701, 86 S.E.
1019, IN 1915, IT HAS BEEN THE SETTLED RULE IN NORTH CAROLINA THAT "A
MOTION TO QUASH  ...  LIES ONLY FOR A DEFECT ON THE FACE OF THE WARRANT
OR INDICTMENT."  170 N.C., AT 702, 86 S.E., AT 1020.  THE RULE THAT A
MOTION TO QUASH CANNOT REST ON MATTERS DEHORS THE RECORD PROPER HAS, SO
FAR AS INVESTIGATION REVEALS, BEEN RIGIDLY ADHERED TO IN ALL SUBSEQUENT
NORTH CAROLINA DECISIONS.  (FN12)  SEE STATE V. BREWER, 180 N.C. 716,
717, 104 S.E. 655, 656; STATE V. COCHRAN, 230 N.C. 523, 524, 53 S.E.2D
663, 665; STATE V. ANDREWS, 246 N.C. 561, 565, 99 S.E.2D 745, 748.  IN
THE PRESENT CASE THE STATE COURT SIMPLY FOLLOWED THIS SETTLED RULE OF
LOCAL PRACTICE. 

A SIMILAR CONCLUSION MUST BE REACHED AS TO THE DENIAL OF THE MOTION
MADE AT THE END OF THE TRIAL.  THAT MOTION REQUESTED "THAT THE VERDICT
RENDERED BY THE JURY  ...  BE SET ASIDE, THAT THE COURT WITHHOLD AND
ARREST JUDGMENT AND DISCHARGE THE DEFENDANTS NOTWITHSTANDING THE
VERDICT, OR GRANT THE DEFENDANTS A NEW TRIAL  ...  ."  WHETHER THE
MOTION BE TECHNICALLY CONSIDERED AS ONE TO SET ASIDE THE VERDICT AND
GRANT A NEW TRIAL OR AS ONE TO ARREST THE JUDGMENT AND DISMISS THE
DEFENDANTS, THE ACTION OF THE NORTH CAROLINA SUPREME COURT IN UPHOLDING
ITS DENIAL WAS CLEARLY IN CONFORMITY WITH ESTABLISHED STATE LAW.  "A
MOTION TO SET ASIDE THE VERDICT AND GRANT A NEW TRIAL IS ADDRESSED TO
THE DISCRETION OF THE COURT AND ITS REFUSAL TO GRANT SUCH MOTION IS NOT
REVIEWABLE ON APPEAL."  STATE V. MCKINNON, 223 N.C. 160, 166, 25 S.E.2D
606, 610; STATE V. CHAPMAN, 221 N.C. 157, 19 S.E.2D 250; STATE V.
JOHNSON, 220 N.C. 252, 17 S.E.2D 7.  SEE ALSO STATE V. WAGSTAFF, 219
N.C. 15, 19, 12 S.E.2D 657, 660; STATE V. BROWN, 218 N.C. 415, 422, 11
S.E.2D 321, 325; STATE V. CAPER, 215 N.C. 670, 2 S.E.2D 864.  "A MOTION
IN ARREST OF JUDGMENT CAN BE BASED ONLY ON MATTERS WHICH APPEAR ON THE
FACE OF THE RECORD PROPER, OR ON MATTERS WHICH SHOULD, BUT DO NOT
APPEAR ON THE FACE OF THE RECORD PROPER  ...  .  THE RECORD PROPER IN
ANY ACTION INCLUDES ONLY THOSE ESSENTIAL PROCEEDINGS WHICH ARE MADE OF
RECORD BY THE LAW ITSELF, AND AS SUCH ARE SELF-PRESERVING  ...  .  THE
EVIDENCE IN A CASE IS NO PART OF THE RECORD PROPER  ...  .  IN
CONSEQUENCE, DEFECTS WHICH APPEAR ONLY BY THE AID OF EVIDENCE CANNOT BE
THE SUBJECT OF A MOTION IN ARREST OF JUDGMENT."  STATE V. GASTON, 236
N.C. 499, 501, 73 S.E.2D 311, 313; STATE V. FOSTER, 228 N.C. 72, 44
S.E.2D 447; STATE V. BROWN, 218 N.C.  415, 422, 11 S.E.2D 321, 325;
STATE V. MCKNIGHT, 196 N.C. 259, 145 S.E. 281; STATE V. SHEMWELL, 180
N.C. 718, 721, 104 S.E. 885. 

EXAMINATION OF THE WHOLE COURSE OF NORTH CAROLINA DECISIONS THUS
PRECLUDES THE INFERENCE THAT THE SUPREME COURT OF NORTH CAROLINA IN
THIS CASE ARBITRARILY DENIED THE APPELLANTS AN OPPORTUNITY TO PRESENT
THEIR FEDERAL CLAIM.  THE JUDGMENT BEFORE US FOR REVIEW IS THE JUDGMENT
WHICH THE SUPREME COURT OF NORTH CAROLINA MADE ON THE RECORD BEFORE IT,
NOT THE ACTION OF THE STATE TRIAL COURT.  "WITHOUT ANY DOUBT IT RESTS
WITH EACH STATE TO PRESCRIBE THE JURISDICTION OF ITS APPELLATE COURTS,
THE MODE AND TIME OF INVOLING THAT JURISDICTION, AND THE RULES OF
PRACTICE TO BE APPLIED IN ITS EXERCISE; AND THE STATE LAW AND PRACTICE
IN THIS REGARD ARE NO LESS APPLICABLE WHEN FEDERAL RIGHTS ARE IN
CONTROVERSY THAN WHEN THE CASE TURNS ENTIRELY UPON QUESTIONS OF LOCAL
OR GENERAL LAW.  CALLAN V. BRANSFORD, 139 U.S. 197; BROWN V.
MASSACHUSETTS, 144 U.S. 573; JACOBI V. ALABAMA, 187 U.S. 133; HULBERT
V. CHICAGO, 202 U.S. 275, 281; NEWMAN V. GATES, 204 U.S. 89; CHESAPEAKE
& OHIO RAILWAY CO. V. MCDONALD, 214 U.S. 191, 195."  JOHN V. PAULLIN,
231 U.S. 583, 585.  "WHEN AS HERE THERE CAN BE NO PRETENCE THAT THE
STATE COURT ADOPTED ITS VIEW IN ORDER TO EVADE A CONSTITUTIONAL ISSUE,
AND THE CASE HAS BEEN DECIDED UPON GROUNDS THAT HAVE NO RELATION TO ANY
FEDERAL QUESTION, THIS COURT ACCEPTS THE DECISION WHETHER RIGHT OR
WRONG."  NICKEL V. COLE, 256 U.S. 222, 225.  (FN13) 

A WORD OF EMPHASIS IS APPROPRIATE, BEFORE CONCLUDING, TO MAKE
ENTIRELY EXPLICIT WHAT IT IS THAT IS INVOLVED IN THIS CASE, AND WHAT IS
NOT.  THERE IS NO ISSUE HERE AS TO THE CONSTITUTIONAL RIGHT OF NEGROES
TO USE A PUBLIC GOLF COURSE FREE OF RACIAL DISCRIMINATION.  FROM FIRST
TO LAST THE COURTS OF NORTH CAROLINA FULLY RECOGNIZED THAT UNDER THE
CONSTITUTION THESE APPELLANTS COULD NOT BE CONVICTED IF THEY WERE
EXCLUDED FROM THE GOLF COURSE BECAUSE OF THEIR RACE.  THE TRIAL JUDGE
SO INSTRUCTED THE JURY, AND THE SUPREME COURT OF NORTH CAROLINA SO
HELD.  CF. CONSTANTIAN V. ANSON COUNTY, 244 N.C. 221, 93 S.E.2D 163. 
UPON THE EVIDENCE IN THIS CASE THE JURY'S VERDICT ESTABLISHED THAT NO
SUCH RACIAL DISCRIMINATION HAD IN FACT OCCURRED.  "ON REVIEW HERE OF
STATE CONVICTIONS, ALL THOSE MATTERS WHICH ARE USUALLY TERMED ISSUES OF
FACT ARE FOR CONCLUSIVE DETERMINATION BY THE STATE COURTS AND ARE NOT
OPEN FOR RECONSIDERATION BY THIS COURT.  OBSERVANCE OF THIS RESTRICTION
IN OUR REVIEW OF STATE COURTS CALLS FOR THE UTMOST SCRUPLE."  WATTS V.
INDIANA, 338 U.S. 49, 50. 

WHAT IS INVOLVED HERE IS THE ASSERTION OF A QUITE DIFFERENT
CONSTITUTIONAL CLAIM - THAT THE SUPREMACY CLAUSE AND THE FOURTEENTH
AMENDMENT REQUIRE A STATE CRIMINAL COURT TO GIVE CONCLUSIVE EFFECT TO
FACT FINDINGS MADE IN A CIVIL ACTION UPON DIFFERENT EVIDENCE BY A
FEDERAL DISTRICT COURT.  WHILE INTIMATING NO VIEW AS TO THE MERITS OF
THIS CONSTITUTIONAL CLAIM, WE NOTE ONLY THAT IT IS A COMPLETELY NOVEL
ONE.  CF. HOAG V. NEW JERSEY, 356 U.S. 464, 470-471.  THE NORTH
CAROLINA SUPREME COURT DID NOT DECIDE THIS ASSERTED FEDERAL QUESTION. 
WE HAVE FOUND THAT IT DID NOT DO SO BECAUSE OF THE REQUIREMENTS OF
RULES OF STATE PROCEDURAL LAW WITHIN THE CONSTITUTIONAL POWER OF THE
STATES TO DEFINE, AND HERE CLEARLY DELINEATED AND EVENHANDEDLY
APPLIED.  WE HAVE NO CHOICE BUT TO DETERMINE THAT THIS APPEAL MUST BE
DISMISSED BECAUSE NO FEDERAL QUESTION IS BEFORE US.  THAT DETERMINATION
IS REQUIRED BY PRINCIPLES OF JUDICIAL ADMINISTRATION LONG SETTLED IN
THIS COURT, PRINCIPLES APPLICABLE ALIKE TO ALL LITIGANTS, IRRESPECTIVE
OF THEIR RACE, COLOR, POLITICS, OR RELIGION.  DISMISSED. 

FN1  "IF ANY PERSON AFTER BEING FORBIDDEN TO DO SO, SHALL GO OR ENTER
UPON THE LANDS OF ANOTHER, WITHOUT A LICENSE THEREFOR, HE SHALL BE
GUILTY OF A MISDEMEANOR, AND ON CONVICTION, SHALL BE FINED NOT
EXCEEDING FIFTY DOLLARS, OR IMPRISONED NOT MORE THAN THIRTY DAYS:  ...
."  N.C. GEN. STAT. SEC. 14-134.  THIS STATUTE WAS FIRST ENACTED IN
1866.  NORTH CAROLINA LAWS, SPECIAL SESSION, JAN., 1866, C. 60. 

FN2  "FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT OF A
STATE IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE SUPREME
COURT AS FOLLOWS:  ... 

"(2)  BY APPEAL, WHERE IS DRAWN IN QUESTION THE VALIDITY OF A STATUTE
OF ANY STATE ON THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION,
TREATIES OR LAWS OF THE UNITED STATES, AND THE DECISION IS IN FAVOR OF
ITS VALIDITY." 

FN3  THE APPELLANTS ASK THAT THE APPEAL BE TREATED AS A PETITION FOR
CERTIORARI IN THE EVENT IT IS FOUND THAT THE APPEAL WAS IMPROPERLY
TAKEN.  SEE 28 U.S.C. SEC. 2103.  THE CONSIDERATIONS WHICH REQUIRE
DISMISSAL OF THE APPEAL IN THIS CASE ALSO REQUIRE DENIAL OF A PETITION
FOR CERTIORARI.  SEE 28 U.S.C. SEC. 1257(3). 

FN4  THE RELEVANT PROVISIONS OF THE BYLAWS WERE AS FOLLOWS:  "SECTION
1 - MEMBERSHIP.  MEMBERSHIP IN THIS CORPORATION SHALL BE RESTRICTED TO
MEMBERS WHO ARE APPROVED BY THE BOARD OF DIRECTORS FOR MEMBERSHIP IN
THIS CLUB.  THERE SHALL BE TWO TYPES OF MEMBERSHIP; ONE, THE PAYMENT OF
A STIPULATED FEE OF $30.00 OR MORE, PLUS TAX, SHALL COVER MEMBERSHIP
AND GREENS FEES.  THE OTHER TYPE OF MEMBERSHIP SHALL BE $1.00, PLUS
TAX, BUT THIS TYPE OF MEMBER SHALL PAY GREENS FEES EACH TIME HE USES
THE COURSE.  THE GREENS FEES AND THE AMOUNT OF MEMBERSHIP FEES MAY BE
CHANGED BY THE BOARD OF DIRECTORS AT ANY TIME UPON TWO-THIRDS VOTE OF
THE MEMBERS OF THE BOARD. 

"SECTION 2 - USE OF GOLF FACILITIES.  THE GOLF COURSE AND ITS
FACILITIES SHALL BE USED ONLY BY MEMBERS, THEIR INVITED GUESTS, MEMBERS
IN GOOD STANDING OF OTHER GOLF CLUBS, MEMBERS OF THE CAROLINA GOLF
ASSOCIATION, PUPILS OF THE PROFESSIONAL AND HIS INVITED GUESTS." 

FN5  THE TRIAL JUDGE'S INSTRUCTIONS IN THEIR ENTIRETY ON THIS ASPECT
OF THE CASE WERE AS FOLLOWS: 

"NOW, IF THE STATE HAS SATISFIED YOU FROM THE EVIDENCE AND BEYOND A
REASONABLE DOUBT THAT THE LAND IN QUESTION, THAT IS THE GOLF COURSE
PROPERTY, WAS THE LAND OF THE CORPORATION, THAT IT HAD THE ACTUAL
POSSESSION OF THE PROPERTY AND THAT THE DEFENDANTS ENTERED UPON THE
LAND INTENTIONALLY AND THAT THEY DID SO AFTER BEING FORBIDDEN TO DO SO
BY AN AGENT OR EMPLOYEE OF THE CORPORATION WHO WAS AUTHORIZED TO TELL
THEM THAT THEY COULD NOT PLAY GOLF, THEN, NOTHING ELSE APPEARING, THAT
WOULD CONSTITUTE A VIOLATION OF THE STATUTE.  HOWEVER, ALTHOUGH THE
STATE MAY PROVE BEYOND A REASONABLE DOUBT IN A PROSECUTION UNDER THIS
STATUTE THAT THE ACCUSED INTENTIONALLY ENTERED UPON THE LAND IN THE
ACTUAL POSSESSION OF THE CORPORATION AFTER BEING FORBIDDEN TO DO SO BY
AN AGENT OF THE CORPORATION AND THEREBY ESTABLISH AS AN ULTIMATE FACT
THAT THE ACCUSED ENTERED THE PROPERTY WITHOUT LEGAL RIGHT, THE ACCUSED
MAY STILL ESCAPE CONVICTION BY SHOWING AS AN AFFIRMATIVE DEFENSE THAT
HE ENTERED UNDER A BONA FIDE CLAIM OF RIGHT. 

"BONA FIDE CLAIM OF RIGHT MEANS A CLAIM OF RIGHT IN GOOD FAITH OR
BONA FIDE ITSELF MEANS IN GOOD FAITH.  THAT IS TO SAY, WHEN THE
DEFENDANTS SEEK TO EXCUSE AN ENTRY WITHOUT LEGAL RIGHT AS ONE TAKING
PLACE UNDER A BONA FIDE CLAIM OF RIGHT, THEN THE BURDEN IS UPON SUCH
DEFENDANT TO SHOW TWO THINGS:  NOT BEYOND A REASONABLE DOUBT OR EVEN BY
THE GREATER WEIGHT OF THE EVIDENCE, BUT MERELY TO THE SATISFCATION OF
THE JURY, FIRST, THAT HE BELIEVED HE HAD A RIGHT TO ENTER; AND, SECOND,
THAT HE HAD REASONABLE GROUNDS FOR SUCH BELIEF. 

"NOW, THE DEFENDANTS BY THEIR PLEA OF NOT GUILTY DENY THEIR GUILT OF
EACH AND EVERY ELEMENT OF THE OFFENSE CHARGED, BUT THEY FURTHER SAY AND
CONTEND THAT EVEN IF IT BE FOUND THAT THE LAND IN QUESTION WAS IN THE
ACTUAL POSSESSION OF THE CORPORATION AND THAT THEY ENTERED THE LAND
INTENTIONALLY AND THAT THEY DID SO AND REMAINED THERE AFTER BEING
FORBIDDEN TO DO SO, THEY SAY THAT EVEN IF THAT BE FOUND THAT THEY DID
SO UNDER A BONA FIDE CLAIM OF RIGHT AND THAT THEY BELIEVED THEY HAD A
RIGHT TO ENTER AND THEY THEY HAD REASONABLE GROUNDS FOR SUCH BELIEF. 

"NOW, AS TO THAT QUESTION WHICH ARISES UPON THE EVIDENCE, I INSTRUCT
YOU THEN, LADIES AND GENTLEMEN OF THE JURY, THAT UNDER THE LAW AS
DETERMINED BY THE UNITED STATES COURT AND AS PRONOUNCED BY THEM, THE
GILLESPIE GOLF CLUB, INC., BY LEASING THE LAND FROM THE CITY OF
GREENSBORO TO USE AS A GOLF COURSE WAS SUBJECTED TO THE SAME
OBLIGATIONS AS THE CITY OF GREENSBORO WOULD HAVE BEEN HAD IT OPERATED A
GOLF COURSE ITSELF.  IT WAS SUBJECTED TO THE SAME RIGHTS AS THE CITY
WOULD HAVE HAD, THE SAME OBLIGATIONS AND SAME RESPONSIBILITIES; THAT IS
TO SAY, THE LAW WOULD NOT PERMIT THE CITY AND, THEREFORE, WOULD NOT
PERMIT ITS LESSEE, THE GILLESPIE PARK GOLF CLUB, INC., TO DISCRIMINATE
AGAINST ANY CITIZEN OF GREENSBORO EXCLUDE EITHER DEFENDANT BECAUSE OF
HIS RACE OR FOR ANY OTHER REASON APPLICABLE TO THEM ALONE; THAT IS TO
SAY, THEY WERE ENTITLED TO THE SAME RIGHTS TO USE THE GOLF COURSE AS
ANY OTHER CITIZEN OF GREENSBORO WOULD BE PROVIDED THEY COMPLIED WITH
THE REASONABLE RULES AND REGULATIONS FOR THE OPERATION AND MAINTENANCE
AND USE OF THE GOLF COURSE.  THEY WOULD NOT BE REQUIRED TO COMPLY WITH
ANY UNREASONABLE RULES AND REGULATIONS FOR THE OPERATION AND
MAINTENANCE AND USE OF THE GOLF COURSE.           *         *         *
   *         * 

"FURTHERMORE, I INSTRUCT YOU THAT YOUR VERDICT WILL NOT BE PROMPTED
IN ANY MANNER WHATSOEVER BY THE RACE OF THE DEFENDANTS.  THAT HAS
ABSOLUTELY NOTHING TO DO WITH THE CASE IN LAW AND SHOULD NOT BE
CONSIDERED BY YOU.  UNDER THE LAW, ALL CITIZENS HAVE EQUAL RIGHTS AND
EQUAL RESPONSIBILITIES IN THE MAINTENANCE AND USE OF PUBLIC FACILITIES,
THAT IS FACILITIES MAINTAINED BY THE GOVERNMENTAL UNIT IN WHICH THEY
LIVE, AND THEREFORE THE FACT THAT THE DEFENDANTS ARE NEGROES CERTAINLY
MAY NOT BE CONSIDERED TO THEIR PREJUDICE NOR TO THE PREJUDICE OF THE
STATE." 

FN6  ALTHOUGH NOT REACHING THE MERITS OF THE CLAIM THAT THE
CONSTITUTION WOULD COMPEL IT TO HOLD THAT THE FEDERAL JUDGMENT OPERATED
AS A COLLATERAL ESTOPPEL IN THE PRESENT CASE, THE NORTH CAROLINA COURT
DISCUSSED THE QUESTION OF COLLATERAL ESTOPPEL AT SOME LENGTH IN ITS
OPINION BY WAY OF OBITER DICTA: 

"THE MERE ASSERTION THAT A COURT OF THIS STATE HAS NOT GIVEN DUE
RECOGNITION TO A JUDGMENT RENDERED BY ONE OF OUR FEDERAL COURTS MERITS
SERIOUS CONSIDERATION. 

     *         *         *         *         * 

"WHEN THE DOCTRINE OF COLLATERAL ESTOPPEL SHOULD BE APPLIED IS NOT
ALWAYS EASILY SOLVED.  IN VAN SCHUYVER V. STATE, 8 P.2D 688, IT WAS
HELD THAT A JUDGMENT IN A CIVIL ACTION BETWEEN PROSECUTING WITNESS AND
DEFENDANT WHICH DETERMINED THE OWNERSHIP OF DOMESTIC FOWL COULD NOT BE
USED BY THE DEFENDANT IN A CRIMINAL ACTION TO ESTOP THE STATE FROM
PROSECUTING HIM ON A CHARGE OF LARCENY.  SIMILAR CONCLUSIONS HAVE BEEN
REACHED IN OTHER JURISDICTIONS WITH RESPECT TO THE OWNERSHIP OF
PROPERTY.  STATE V. HOGARD, 12 MINN. 293; PEOPLE V. LELAND, 25 N.Y.S.
943; HILL V. STATE, 3 S.W. 764 (TEX.) 

"IT IS SAID IN THE ANNOTATION TO MITCHELL V. STATE, 103 AM. ST. REP.
17:  'WHEN THE PREVIOUS JUDGMENT AROSE IN A CASE IN WHICH THE STATE OR
COMMONWEALTH WAS THE PROSECUTOR OR PLAINTIFF AND THE DEFENDANT IN THE
CASE AT BAR WAS ALSO THE DEFENDANT, AND THE JUDGMENT WAS WITH REFERENCE
TO A SUBJECT WHICH IS MATERIAL TO THE CASE AT BAR, THE DOCTRINE OF RES
JUDICATA APPLIES.  (CITATIONS).  BUT WHERE THE JUDGMENT TO WHICH IT IS
SOUGHT TO APPLY THE DOCTRINE OF RES JUDICATA WAS RENDERED IN A CIVIL
PROCEEDING TO WHICH THE STATE WAS NOT A PARTY, OR IN A CRIMINAL
PROCEEDING TO WHICH THE DEFENDANT IN THE CASE AT BAR WAS NOT A PARTY,
THE DOCTRINE OF RES JUDICATA DOES NOT APPLY.  (CITATIONS)'. 

"THE SUPREME COURT OF THE UNITED STATES HAS RECOGNIZED AND APPLIED
THE LAW AS THERE ANNOUNCED TO DIFFERING FACTUAL SITUATIONS.  COMPARE
U.S. V. BALTIMORE & O.R. CO., 229 U.S. 244, 57 L. ED. 1169, AND
WILLIAMS V. N.C., 325 U.S. 226, 89 L.ED. 1577.  OTHER ILLUSTRATIONS MAY
BE FOUND IN:  S.V. DULA, 204 N.C. 535, 168 S.E. 836; WARREN V. INS.
CO., 215 N.C. 402, 2 S.E.2D 17; POWERS V. DAVENPORT, 101 N.C. 286; S.V.
BOLAND, 41 N.W.2D 727; PEOPLE V. MCKENNA, 255 P.2D 452; S.V. MORROW, 75
P.2D 737; S.V. CORNWELL, 91 A.2D 456; S.V. GREENBERG, 109 A.2D 669. 
EXTENSIVE ANNOTATIONS APPEAR AS A NOTE TO GREEN V. STATE, 87 A.L.R.
1251; 30A AM. JUR.  518."  248 N.C., AT 493, 495, 103 S.E.2D, AT 852,
853-854. 

COMPARE WHAT WAS SAID BY THIS COURT IN HOAG V. NEW JERSEY, 356 U.S.
464, 471:  "DESPITE ITS WIDE EMPLOYMENT, WE ENTERTAIN GRAVE DOUBTS
WHETHER COLLATERAL ESTOPPEL CAN BE REGARDED AS A CONSTITUTIONAL
REQUIREMENT.  CERTAINLY THIS COURT HAS NEVER SO HELD." 

FN7  IN NORTH CAROLINA, "THE 'TRANSCRIPT OR RECORD ON APPEAL' (TO THE
SUPREME COURT) CONSISTS OF (1) THE 'RECORD PROPER' (I.E., SUMMONS,
PLEADINGS, AND JUDGMENT) AND (2) THE 'CASE ON APPEAL,' WHICH LAST IS
THE EXCEPTIONS TAKEN, AND SUCH OF THE EVIDENCE, CHARGE, PRAYERS, AND
OTHER MATTERS OCCURRING AT THE TRIAL AS ARE NECESSARY TO PRESENT THE
MATTERS EXCEPTED TO FOR REVIEW."  CRESSLER V. ASHEVILLE, 138 N.C. 482,
485, 51 S.E. 53, 54.  THE "RECORD PROPER" INCLUDES "ONLY THOSE
ESSENTIAL PROCEEDINGS WHICH ARE MADE OF RECORD BY THE LAW ITSELF, AND
AS SUCH ARE SELF-PRESERVING," STATE V. GASTON, 236 N.C. 499, 501, 73
S.E.2D 311, 313.  THE TERM "RECORD" IN THIS OPINION REFERS, UNLESS
OTHERWISE INDICATED, TO THAT PART OF THE RECORD ON APPEAL WHICH IS
CONTAINED IN THE "CASE ON APPEAL," I.E., THE TRANSCRIPT OF THE
PROCEEDINGS AT THE TRIAL ITSELF, CONTAINING THE TESTIMONY OF WITNESSES,
PROFFERS OF EVIDENCE, EXCEPTIONS AND RULINGS THEREON, ETC., AS SELECTED
AND AGREED UPON BY THE PARTIES. 

FN8  ALL THAT THE RECORD BEFORE THE NORTH CAROLINA COURT CONTAINED ON
THIS ASPECT OF THE CASE, HERE REPRODUCED IN ITS ENTIRETY, WAS "MY NAME
IS MYRTLE D. COBB AND I AM DEPUTY CLERK IN THE FEDERAL COURT IN
GREENSBORO, AND I HAVE IN MY POSSESSION OR IT IS MY DUTY TO KEEP IN MY
POSSESSION PUBLIC RECORDS CONCERNING FEDERAL CASES AND I DO HAVE IN MY
POSSESSION THE RECORD IN THE CASE OF SIMKINS, ET AL. V. THE GILLESPIE
PARK GOLF COURSE.  I HAVE ALL OF THE ORIGINAL PAPERS IN THAT CASE." 

EIGHT PAGES LATER, FOLLOWING THE TRANSCRIPT OF THE TESTIMONY OF
ANOTHER WITNESS, THERE APPEARS IN THE RECORD BEFORE THE NORTH CAROLINA
COURT THE FOLLOWING, ALSO REPRODUCED HERE IN ITS ENTIRETY: "MRS. 
KENNEDY:  IF YOUR HONOR PLEASE, WE'D LIKE, IF POSSIBLE, TO HAVE A
RULING ON WHETHER OR NOT THESE WOULD BE ADMISSIBLE.  COURT:  I AM GOING
TO SUSTAIN THE OBJECTION AS TO THOSE TWO EXHIBITS, THAT IS #6 AND #7." 
THERE IS NOTHING IN THE RECORD BEFORE THE NORTH CAROLINA SUPREME COURT
TO INDICATE WHAT "THESE" MEANT, AND "EXHIBITS 6 AND 7" WERE NOT FURTHER
IDENTIFIED NOR MADE PART OF THE RECORD AS AN OFFER OF EVIDENCE AS
REQUIRED BY NORTH CAROLINA LAW, IN RE SMITH'S WILL, 163 N.C. 464, 79
S.E. 977, NOR OTHERWISE SUBMITTED TO THE SUPREME COURT OF NORTH
CAROLINA. 

FN9  THE APPELLANTS HAVE INCLUDED IN AN APPENDIX TO THEIR BRIEF AN
EXCERPT FROM THE STENOGRAPHIC TRIAL TRANSCRIPT.  THE TRIAL TRANSCRIPT
WAS MADE AVAILABLE TO THIS COURT AFTER THE ARGUMENT, AND THE EXCERPT IN
QUESTION READS AS FOLLOWS: 

"DIRECT EXAMINATION BY MRS. KENNEDY: 

"Q.  WILL YOU STATE YOUR NAME AND ADDRESS, PLEASE? 

"A.  I AM MYRTLE D. COBB.  I AM DEPUTY CLERK IN THE FEDERAL COURT IN
GREENSBORO. 

"Q.  AS DEPUTY CLERK IN THE FEDERAL COURT HERE IN GREENSBORO, IS IT
PART OF YOUR DUTY TO KEEP PUBLIC RECORDS? 

"A.  YES, IT IS. 

"Q.  DO YOU HAVE A RECORD IN THE CASE OF SIMKINS, ET AL, VS.
GILLESPIE PARK GOLF COURSE, ET AL? 

"A.  THIS IS THE CASE.  IT IS ALL THE ORIGINAL PAPERS THAT WENT UP TO
THE COURT OF APPEALS THAT WAS FILED IN OUR OFFICE. 

"Q.  WERE THE FINDINGS OF FACT PART OF THAT RECORD? 

"A.  YES. 

"MRS. KENNEDY:  YOUR HONOR, AT THIS TIME WE'D LIKE TO OFFER INTO
EVIDENCE A DECREE, THE FINDINGS OF FACT, CONCLUSIONS OF LAW AND
OPINION, AS RENDERED BY THE JUDGE OF THE FEDERAL COURT, MIDDLE DISTRICT
OF GREENSBORO. 

"MR. KORNEGAY:  OBJECTION. 

"THE COURT:  DO YOU HAVE ANYTHING FURTHER THAT YOU WANT TO INTRODUCE
IN REGARD TO THAT? 

"MRS. KENNEDY:  IN ADDITION TO THAT, WE HAVE THE OPINION OF THE
CIRCUIT COURT OF APPEALS ON THIS CASE. 

"MR. KORNEGAY:  OBJECTION. 

"THE COURT:  LET THE RECORD SHOW THAT IS BEING OFFERED IN EVIDENCE. 
I WILL RULE ON IT LATER. 

"(THE DOCUMENTS REFERRED TO WERE MARKED FOR IDENTIFICATION
DEFENDANTS' EXHIBITS 6 AND 7.) 

"THE COURT:  ANYTHING ELSE? 

"MRS. KENNEDY:  NOT WITH THIS WITNESS, YOUR HONOR." 

FN10  IN CIVIL CASES, THE NORTH CAROLINA SUPREME COURT, ON MOTION OF A
PARTY, HAS ISSUED "A CERTIORARI TO GIVE THE TRIAL JUDGE AN OPPORTUNITY
TO CORRECT THE 'CASE' ALREADY SETTLED BY HIM, BUT ...  SUCH CERTIORARI
NEVER ISSUES (EXCEPT TO INCORPORATE EXCEPTIONS TO THE CHARGE FILED
WITHIN TEN DAYS AFTER ADJOURNMENT:  CAMERON V. POWER CO., 137 N.C., 99)
UNLESS IT IS FIRST MADE CLEAR TO THE COURT, USUALLY BY LETTER FROM THE
JUDGE, THAT HE WILL MAKE THE CORRECTION IF GIVEN THE OPPORTUNITY." 
SLOCUMB V. CONSTRUCTION CO., 142 N.C. 349, 351, 55 S.E. 196, 197;
SHERRILL V. WESTERN UNION TELEGRAPH CO., 116 N.C. 655, 21 S.E. 429;
BROADWELL V. RAY, 111 N.C. 457, 16 S.E. 408; LOWE V. ELLIOTT, 107 N.C.
718, 12 S.E. 383.  HERE, THE CASE ON APPEAL WAS NOT SETTLED BY THE
TRIAL JUDGE, AND NO MOTION FOR CERTIORARI WAS MADE. 

FN11  IN AYCOCK V. RICHARDSON, 247 N.C. 233, 100 S.E.2D 379, AND
MASON V. MOORE COUNTY BOARD, 229 N.C. 626, 51 S.E.2D 6, THE COURT WENT
BEYOND THE RECORD FOR THE RESTRICTED AND QUITE DIFFERENT PURPOSE OF
DETERMINING WHETHER IT HAD JURISDICTION OF THE APPEAL, I.E., TO
DETERMINE WHETHER AN APPEAL HAD BEEN PROPERLY TAKEN IN ACCORDANCE WITH
NORTH CAROLINA GENERAL STATUTES SECS. 1-279 AND 1-280.  IN OTHER CASES
THE NORTH CAROLINA SUPREME COURT HAS REMANDED A CAUSE FOR COMPLETION OF
THE RECORD ON APPEAL BECAUSE THE RECORD PROPER (AS OPPOSED TO THE CASE
ON APPEAL) LACKED CERTAIN PRIMARY ESSENTIALS.  STATE V. BUTTS, 91 N.C.
524 (RECORD FAILED TO SHOW THAT A COURT HAD BEEN HELD BY A JUDGE OR
THAT A GRAND JURY HAD BEEN DRAWN, SWORN, AND CHARGED); STATE V. FARRAR,
103 N.C. 411, 9 S.E. 449 (SAME); STATE V. DANIEL, 121 N.C. 574, 28 S.E.
255 (RECORD DID NOT SHOW THE ORGANIZATION OF THE COURT BELOW OR WHEN
AND WHERE THE TRIAL HAD BEEN HELD).  SEE ALSO KEARNES V. GRAY, 173 N.C.
717, 92 S.E. 149.  IN THE SAME CATEGORY MUST BE PLACED THOSE CASES IN
WHICH THE NORTH CAROLINA SUPREME COURT, ON MOTION OF A PARTY, REMANDED
THE CAUSE FOR CORRECTION OF THE RECORD PROPER.  SEE STATE V. BROWN, 203
N.C. 513, 166 S.E. 396 (ERROR IN THE TRANSCRIPTION OF THE VERDICT);
STATE V. MOSLEY, 212 N.C. 766, 194 S.E. 486 (OMISSION IN THE
TRANSCRIPTION OF THE VERDICT).  SEE ALSO STATE V. MARSH, 134 N.C. 184,
47 S.E. 6 (CASE REVERSED BECAUSE OF OMISSION OF PART OF THE INDICTMENT
IN THE RECORD ON APPEAL).  AS TO THE IMPORTANT DISTINCTION IN NORTH
CAROLINA BETWEEN THE RECORD PROPER AND CASE ON APPEAL, SEE N. 7,
SUPRA. 

FN12  THERE IS A STATUTORY DEPARTURE FROM THE SETTLED RULE.  A NORTH
CAROLINA STATUTE, ENACTED MORE THAN 70 YEARS AGO, PROVIDING THAT "ALL
EXCEPTIONS TO GRAND JURORS FOR AND ON ACCOUNT OF THEIR
DISQUALIFICATIONS SHALL BE TAKEN  ...  BY MOTION TO QUASH THE
INDICTMENT, AND IF NOT SO TAKEN, THE SAME SHALL BE DEEMED TO BE
WAIVED."  N.C. GEN. STAT. SEC. 9-26.  THE NORTH CAROLINA COURTS HAVE
HELD THAT WHEN A MOTION TO QUASH IS EMPLOYED TO ATTACK THE
QUALIFICATION OF GRAND JURORS, THE DEFENDANT MAY RELY ON EVIDENCE
OUTSIDE THE RECORD PROPER.  SEE STATE V. GARDNER, 104 N.C. 739, 10 S.E.
146; STATE V. PEOPLES, 131 N.C. 784, 42 S.E. 814; STATE V. SPELLER, 229
N.C. 67, 47 S.E.2D 537; MILLER V. STATE, 237 N.C. 29, 74 S.E.2D 513;
STATE V. PERRY, 248 N.C. 334, 103 S.E.2D 404. 

FN13  IT HAS BEEN SUGGESTED THAT EVEN THOUGH THE GROUND RELIED UPON
BY THE SUPREME COURT OF NORTH CAROLINA IS AN ADEQUATE STATE GROUND,
THIS CASE SHOULD NOT BE DISMISSED, BUT REMANDED BECAUSE OF A
SUPERVENING "EVENT."  BUT THERE HAS BEEN NO SIGNIFICANT "CHARGE, EITHER
IN FACT OR LAW, WHICH HAS SUPERVENED SINCE THE JUDGMENT WAS ENTERED" BY
THE SUPREME COURT OF NORTH CAROLINA.  PATTERSON V. ALABAMA, 294 U.S.
600, 607.  ALL THAT HAS HAPPENED IS THAT THE STATE ATTORNEY GENERAL'S
OFFICE, AT THIS COURT'S REQUEST AFTER ARGUMENT, MADE AVAILABLE A
TRANSCRIPT OF THE TRIAL COURT PROCEEDINGS WHICH WAS STATED TO BE
ACCURATE.  BUT IT HAS NOT BEEN SUGGESTED THAT THE STATE AT ANY TIME HAS
QUESTIONED THAT THE TRANSCRIPT OF THE TRIAL COURT'S PROCEEDINGS WOULD
REFLECT THAT THE DOCUMENTS HAD IN FACT BEEN OFFERED IN EVIDENCE IN THE
TRIAL COURT.  SEE NOTE 9.  THIS CASE THUS DOES NOT INVOLVE A SITUATION
WHERE THERE HAS BEEN AN INTERVENING CHANGE IN FACT OR LAW.  COMPARE
GULF, C.&S.F.R. CO. V. DENNIS, 224 U.S. 503; PAGEL V. MACLEAN, 283 U.S.
266; STATE TAX COMM'N V. VAN COTT, 306 U.S. 511, 515-516. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

I DO NOT AGREE THAT THE DECISION BELOW RESTS ON ADEQUATE NONFEDERAL
GROUNDS.  AND - WHETHER IT DOES OR NOT - IT SEEMS TO ME THAT THE CASE
SHOULD NOT BE DISMISSED IN VIEW OF DEVELOPMENTS SINCE THE ARGUMENT. 

THE CRUCIAL HOLDING BELOW IS THAT THE NORTH CAROLINA COURTS COULD NOT
CONSIDER THE SIMKINS (FN1) RECORD BECAUSE APPELLANTS "FOR REASONS BEST
KNOWN TO THEMSELVES ELECTED NOT TO OFFER IT IN EVIDENCE."  248 N.C.
485, 493, 103 S.E.2D 846, 852.  IT GOES WITHOUT SAYING THAT THE
PROCEDURAL RULE THUS INVOKED - THAT APPELLANTS MUST RELY ON EVIDENCE
WHICH WAS OFFERED AT THE TRIAL - IS, IN ITSELF, REASONABLE.  IN FACT,
THAT RULE IS ELEMENTARY IN MOST TYPES OF PRACTICE.  THE DIFFICULTY HERE
LIES NOT IN THE RULE, BUT IN ITS APPLICATION TO THIS CASE, ON THIS
RECORD, AND IN THE LIGHT OF THE FACT, ACKNOWLEDGED BY THE STATE, (FN2)
THAT APPELLANTS OFFERED THE SIMKINS RECORD IN EVIDENCE. 

THE RELEVANT FACTS ARE FEW.  WHEN THE FEDERAL COURT GRANTED ITS
INJUNCTION IN SIMKINS, IT FOUND THAT APPELLANTS HAD BEEN EXCLUDED FROM
GILLESPIE PARK ON THE OCCASION IN QUESTION BECAUSE THEY ARE NEGROES. 
SIMKINS V. CITY OF GREENSBORO, 149 F. SUPP. 562, 565.  AS WAS HELD
BELOW, SUCH EXCLUSION, IF ESTABLISHED AS A FACT IN THIS CASE, WOULD BE
A COMPLETE DEFENSE TO THE STATE'S TRESPASS CHARGE.  248 N.C., AT 491
493, 103 S.E.2D, AT 851-852.  THEREFORE, APPELLANTS OFFERED THE SIMKINS
RECORD IN EVIDENCE DURING THEIR TRIAL.  (FN3)  THEY CLAIMED, UNDER THE
SUPREMACY CLAUSE AND THE FOURTEENTH AMENDMENT, THAT THE FEDERAL COURT
DETERMINATION BARRED THE STATE PROSECUTION.  HOWEVER, THE STATE
OBJECTED TO APPELLANTS' OFFER OF PROOF, AND THE TRIAL COURT SUSTAINED
THE OBJECTION.  (FN4) THEREAFTER, THE JURY CONVICTED. 

ON APPEAL TO THE SUPREME COURT OF NORTH CAROLINA, APPELLANTS SOUGHT
REVIEW OF THEIR CONTENTION THAT THE FEDERAL COURT FINDINGS WERE BINDING
ON THE STATE IN THE SUBSEQUENT CRIMINAL PROCEEDINGS.  AT THIS POINT
THEY MADE THE MISTAKE WHICH DEPRIVED THEM OF THE OPPORTUNITY TO HAVE
THAT FEDERAL QUESTION REVIEWED.  THEY FAILED TO INCLUDE THEIR OFFER OF
PROOF AND THE REJECTED EXHIBITS IN THEIR CASE ON APPEAL, ALTHOUGH THEY
DID INCLUDE THE RULING ON THE STATE'S OBJECTION.  WITH THE RESULTING
DEFECTIVE RECORD BEFORE IT, THE STATE SUPREME COURT HELD THAT IT COULD
NOT REVIEW APPELLANTS' FEDERAL QUESTION BECAUSE, AS HAS BEEN INDICATED,
APPELLANTS "FOR REASONS BEST KNOWN TO THEMSELVES ELECTED NOT TO OFFER
THE SIMKINS RECORD IN EVIDENCE."    THE COURT HOLDS THAT THE STATE
GROUND IS ADEQUATE TO SUPPORT THE DECISION BELOW BECAUSE, ALTHOUGH WE
KNOW THE FACT TO BE TO THE CONTRARY, THE ASSERTION THAT APPELLANTS
FAILED TO OFFER THE SIMKINS RECORD IN EVIDENCE "IS BORNE OUT BY THE
RECORD" WHICH THE STATE COURT HAD BEFORE IT.  I CANNOT READ THAT RECORD
- APPELLANTS' CASE ON APPEAL - AS DOES THE COURT.  THEREFORE, I DO NOT
AGREE THAT THE STATE GROUND IS ADEQUATE.  BUT EVEN IF IT WERE, IT DOES
NOT FOLLOW THAT THE CASE MUST - OR SHOULD - BE DISMISSED.  RATHER, THE
STATE'S STIPULATION - A SUPERVENING EVENT WHICH MAY BE OF CRITICAL
SIGNIFICANCE UNDER NORTH CAROLINA LAW - REQUIRES A DIFFERENT
DISPOSITION, IN THE INTERESTS OF JUSTICE, UNDER CONTROLLING PRECEDENT. 

FIRST.  IT CANNOT BE SAID, EVEN ON THE DEFECTIVE RECORD WHICH THE
STATE SUPREME COURT HAD BEFORE IT, THAT APPELLANTS "FOR REASONS BEST
KNOWN TO THEMSELVES ELECTED NOT TO OFFER THE SIMKINS RECORD IN
EVIDENCE."  ON THE CONTRARY, APPELLANTS' CASE ON APPEAL INDICATES
CLEARLY THAT APPELLANTS OFFERED THE SIMKINS RECORD IN EVIDENCE.  WHEN
THE PORTIONS OF THAT RECORD SET OUT IN THE COURT'S OPINION (FN5) ARE
READ AS A WHOLE WITH THE ENTIRE CASE ON APPEAL, IT SEEMS REASONABLY
CLEAR THAT THE SIMKINS RECORD WAS OFFERED IN EVIDENCE, THAT THE STATE
OBJECTED TO THE OFFER, AND THAT THE OBJECTION WAS SUSTAINED. 
THEREFORE, WHETHER THE RESULT BELOW COULD HAVE BEEN BASED ON OTHER
GROUNDS OR NOT, THE FACTUAL PREMISE FOR THE GROUND ON WHICH IT WAS
BASED LACKS FAIR AND SUBSTANTIAL SUPPORT IN THE RECORD.  THAT GROUND,
THEREFORE, IS NOT ADEQUATE.  CF. CRESWILL V. GRAND LODGE, 225 U.S. 246;
UNION PACIFIC R. CO. V. PUBLIC SERVICE COMM'N, 248 U.S. 67; CEDAR
RAPIDS GAS LIGHT CO. V. CEDAR RAPIDS, 223 U.S. 655; SEE UNITED GAS CO.
V. TEXAS, 303 U.S. 123, 143.  "WHATEVER SPRINGS THE STATE MAY SET FOR
THOSE WHO ARE ENDEAVORING TO ASSERT RIGHTS THAT THE STATE CONFERS, THE
ASSERTION OF FEDERAL RIGHTS, WHEN PLAINLY AND REASONABLY MADE, IS NOT
TO BE DEFEATED UNDER THE NAME OF LOCAL PRACTICE."  DAVIS V. WECHSLER,
263 U.S. 22, 24.  SINCE THE ONLY STATE GROUND MENTIONED IN THE OPINION
BELOW IS INADEQUATE, THIS COURT SHOULD EITHER PROCEED DIRECTLY TO A
CONSIDERATION OF THE FEDERAL QUESTION OR - IF DEEMED DESIRABLE - SHOULD
REMAND THE CASE TO THE STATE COURT FOR FURTHER CONSIDERATION. 

SECOND.  EVEN IF THE STATE GROUND WERE ADEQUATE, THE CASE SHOULD NOT
BE DISMISSED.  AFTER THE ARGUMENT IN THIS COURT, THE STATE FURNISHED
THE COURT WITH A COPY OF THE ACTUAL STENOGRAPHIC TRANSCRIPT OF THE
TRIAL.  THE STATE STIPULATED TO THE ACCURACY OF THAT TRANSCRIPT.  THE
TRANSCRIPT SHOWS, BEYOND PERADVENTURE, THAT THE DECISION BELOW WAS
BASED "UPON A SUPPOSED STATE OF FACTS WHICH DOES NOT EXIST."  GORHAM V.
PACIFIC MUT. LIFE INS. CO., 215 N.C. 195, 200, 1 S.E.2D 569, 572.  THE
NORTH CAROLINA COURT APPARENTLY RECOGNIZES INFIRMITY IN ITS DECISIONS
IN SUCH CASES.  STATE V. MARSH, 134 N.C. 184, 47 S.E. 6.  THEREFORE,
THE STATE'S STIPULATION, AN EVENT "WHICH HAS SUPERVENED SINCE THE
JUDGMENT BELOW WAS ENTERED," MAY VERY WELL "AFFECT THE RESULT." 
PATTERSON V. ALABAMA, 294 U.S. 600, 607.  ACCORDINGLY, UNDER FIRMLY
ESTABLISHED PRINCIPLES, EITHER THE CASE SHOULD BE REMANDED FOR A
DECISION BY THE STATE COURT ON THE LEGAL EFFECT OF THE STATE'S
STIPULATION, (FN6) OR WE SHOULD DECIDE THIS QUESTION OF STATE LAW
OURSELVES.  (FN7)  TO TAKE SUCH ACTION "IS NOT TO REVIEW, IN ANY PROPER
SENSE OF THE TERM, THE DECISION OF THE STATE COURT UPON A NON-FEDERAL
QUESTION, BUT ONLY TO DEAL APPROPRIATELY WITH A MATTER ARISING SINCE
ITS JUDGMENT AND HAVING A BEARING UPON THE RIGHT DISPOSITION OF THE
CASE."  PATTERSON V. ALABAMA, SUPRA, AT 607; STATE TAX COMM'N V. VAN
COTT, 306 U.S. 511, 515-516. 

THIRD.  IT SHOULD NOT BE ASSUMED THAT OTHER STATE GROUNDS, NOT RELIED
ON BELOW, WOULD PRECLUDE RECONSIDERATION BY THE STATE COURT IF THE CASE
WERE REMANDED.  AS HAS BEEN INDICATED, THE STATE'S STIPULATION MAY
CREATE INFIRMITY IN THE STATE COURT'S DECISION, UNDER NORTH CAROLINA
LAW.  SEE STATE V. MARSH, SUPRA.  A REMAINING OBSTACLE TO APPELLATE
REVIEW OF APPELLANTS' FEDERAL QUESTION, UNDER NORTH CAROLINA PRACTICE,
MAY BE THE OMISSION OF THE REJECTED EXHIBITS FROM APPELLANTS' CASE ON
APPEAL.  SEE IN RE SMITH'S WILL, 163 N.C. 464, 79 S.E. 977.  BUT
RECORDS CAN BE CORRECTED.  THE COURT REFERS US TO CASES WHICH SHOW THAT
THE NORTH CAROLINA COURT MAY PERMIT CORRECTIONS IN THE RECORD PROPER
(FN8) AND IN THE CASE ON APPEAL.  (FN9)  IT MAY AUTHORIZE CORRECTIONS
NOT ONLY WHEN FAULT IS ATTRIBUTABLE TO THE LOWER COURT, (FN10) BUT ALSO
WHEN IT IS CHARGEABLE TO THE PARTIES.  (FN11)  IT MAY DO SO PURSUANT TO
AGREEMENT BETWEEN THE PARTIES (FN12) AND PURSUANT TO MOTION OF ONE OF
THE PARTIES.  (FN13)  INDEED, IT APPEARS THAT IT MAY BE ABLE TO DO SO
ON ITS OWN MOTION.  (FN14) ITS POWER TO INQUIRE INTO THE ACCURACY OF
THE RECORD BEFORE IT IS ESTABLISHED - TO SOME EXTENT AT LEAST - BY
RECENT DECISIONS, (FN15) AND ITS POWER TO ORDER THE LOWER COURTS TO
SEND UP "ADDITIONAL PAPERS AND PARTS OF THE RECORD" IS EXPLICITLY
RECOGNIZED BY ITS RULES.  (FN16)  THEREFORE, THE STATE COURT COULD
PERMIT A CORRECTION OF THE RECORD - AND CONSEQUENTLY COULD DECIDE THE
FEDERAL QUESTION - IF THE CASE WERE REMANDED. 

IT IS TRUE THAT THERE IS LANGUAGE IN NORTH CAROLINA CASES, TO WHICH
THE STATE HAS CALLED OUR ATTENTION, THAT INDICATES THAT A RECORD
SETTLED BY AGREEMENT - RATHER THAN BY THE TRIAL COURT - MAY ONLY BE
CORRECTED BY AGREEMENT.  SEE SMITH V. CAPITAL COCA-COLA BOTTLING CO.,
221 N.C. 202, 19 S.E.2D 626; GORHAM V. PACIFIC MUT. LIFE INS. CO.,
SUPRA.  AND LANGUAGE FROM STATE V. DEE, 214 N.C. 509, 512, 199 S.E.
730, 732, QUOTED BY THE COURT IN ANOTHER CONNECTION, SUGGESTS THAT THE
STATE COURT IS DISINCLINED TO PERMIT THE CORRECTION OF A DEFECTIVE
RECORD WHEN THE CASE ON APPEAL IS SETTLED BY THE PARTIES.  BUT THESE
CASES ARE NOT IN POINT IN THE CIRCUMSTANCES OF THE CASE BEFORE US. 

THE RULE STATED IN SMITH AND GORHAM - THAT A RECORD SETTLED BY
AGREEMENT CAN ONLY BE CORRECTED BY AGREEMENT - IS SUBJECT TO A VERY
RELEVANT QUALIFICATION.  FOR IN GORHAM, THE NORTH CAROLINA COURT
OBSERVED, IN DENYING A LOSING PARTY'S REQUEST FOR A CERTIORARI TO
CORRECT THE RECORD, THAT: 

"THERE IS NO CONCESSION ON THE PART OF THE PREVAILING PARTY THAT THE
CASE HAS BEEN DECIDED 'UPON A SHAM ISSUE,' OR 'UPON A SUPPOSED STATE OF
FACTS WHICH DOES NOT EXIST,' NOR YET UPON A MISCONCEPTION OF THE
RECORD.  COOK V. MFG. CO., (183 N.C. 48, 110 S.E. 608); S. V. MARSH,
SUPRA.  THESE ARE ALLEGATIONS OF THE LOSING PARTY, AND THE PREVAILING
PARTY SAYS THEY REST ONLY IN ALLEGATION.  SHE FURTHER SAYS THAT THE
INTERPRETATION PLACED UPON THE RECORD 'WAS AND IS ABSOLUTELY CORRECT';
... AND THAT THE TRANSCRIPT ADMITS OF NO OTHER INTERPRETATION."  215
N.C., AT 200, 1 S.E.2D, AT 572. 

HERE, ON THE OTHER HAND, THE STATE HAS STIPULATED TO FACTS WHICH DO
ESTABLISH THAT THE CASE WAS DECIDED BELOW "UPON A SUPPOSED STATE OF
FACTS WHICH DOES NOT EXIST."  THAT IS PRECISELY WHAT THE PREVAILING
PARTY IN GORHAM DID NOT CONCEDE.  THIS CASE, THEREFORE, IS GOVERNED BY
COOK AND MARSH, NOT BY GORHAM. 

LIKEWISE, IN DEE, THE NORTH CAROLINA COURT DENIED THE STATE'S REQUEST
FOR A CERTIORARI TO CORRECT AN ALLEGED ERROR IN THE CASE ON APPEAL. 
BUT IN DEE, AS IN GORHAM, THE PREVAILING PARTY DID NOT CONCEDE THAT
THERE WAS ANY ERROR IN THE RECORD.  IN FACT, THE COURT ITSELF EXPRESSED
SKEPTICISM ABOUT THE STATE'S CLAIM: 

"IT IS SUGGESTED BY THE ATTORNEY-GENERAL THAT, IN ALL PROBABILITY, A
TYPOGRAPHICAL ERROR HAS CREPT INTO THE TRANSCRIPT AND THAT THE WORD
'DISINTERESTED' WAS USED WHERE THE WORD 'INTERESTED' APPEARS.  IN THIS
HE IS SUPPORTED BY A LETTER FROM THE JUDGE WHO PRESIDED AT THE TRIAL,
AND UPON THIS LETTER A MOTION FOR CERTIORARI TO CORRECT THE RECORD HAS
BEEN LODGED ON BEHALF OF THE STATE.  THE SOLICITOR APPARENTLY TOOK A
DIFFERENT VIEW OF THE MATTER WHEN HE AGREED TO THE STATEMENT OF CASE ON
APPEAL WITH AN EXCEPTION POINTED DIRECTLY TO THE EXPRESSION."  214
N.C., AT 512, 199 S.E., AT 732. 

ON THESE FACTS, QUITE DIFFERENT FROM THOSE BEFORE US, IT IS PERHAPS
UNDERSTANDABLE THAT THE STATE COURT REFUSED TO ENTERTAIN THE STATE'S
APPEAL TO ITS DISCRETION. 

THEREFORE, IT APPEARS THAT IF THE CASE WERE REMANDED, APPELLANTS
WOULD VERY LIKELY BE PERMITTED TO CORRECT THEIR CASE ON APPEAL, IN VIEW
OF THE STATE'S STIPULATION.  AND, AS HAS BEEN INDICATED, A CORRECTION
COULD NOW BE ALLOWED EVEN IF THE STATE OBJECTED TO IT.  BUT I AM SURE
THAT THE STATE WOULD NOT OBJECT, FOR NORTH CAROLINA HAS NO INTEREST IN
DEPRIVING ITS CITIZENS OF THEIR LIBERTY ON ASSUMPTIONS THAT DO NOT
ACCORD WITH FACT.  IT SEEMS CLEAR, THEREFORE, THAT UNDER NORTH CAROLINA
LAW, APPELLANTS MAY YET HAVE THEIR FEDERAL QUESTION REVIEWED - UNLESS
WE DISMISS.  (FN17) 

IN VIEW OF THE FEDERAL COURT FINDING THAT THE APPELLANTS WERE
EXCLUDED FROM GILLESPIE PARK BECAUSE OF THEIR RACE, THESE CONVICTIONS
GIVE RISE TO SERIOUS CONSTITUTIONAL DOUBTS.  UNLESS DISMISSAL CANNOT BE
AVOIDED, THE APPELLANTS SHOULD NOT BE DEPRIVED OF THEIR LIBERTY WITHOUT
BEING HEARD ON THEIR FEDERAL QUESTION.  OUR OWN PRECEDENTS REQUIRE THAT
WE EITHER REMAND THE CASE OR DECIDE THE QUESTIONS WHICH IT PRESENTS. 

FN1  SIMKINS V. CITY OF GREENSBORO, 149 F. SUPP. 562, AFFIRMED, CITY
OF GREENSBORO V. SIMKINS, 246 F.2D 425. 

FN2  THE STATE HAS STIPULATED TO THE ACCURACY OF A STENOGRAPHIC TRIAL
TRANSCRIPT MADE AVAILABLE TO THE COURT, AFTER ARGUMENT, AT THE COURT'S
REQUEST.  SEE THE COURT'S OPINION, NOTE 9.  OF COURSE, THE STATE DENIES
THAT THE TRANSCRIPT HAS ANY RELEVANCE TO THE ISSUES BEFORE THE COURT. 

FN3  SEE THE COURT'S OPINION, NOTES 8, 9. 

FN4  SEE THE COURT'S OPINION, NOTE 8. 

FN5  SEE THE COURT'S OPINION, NOTE 8. 

FN6  GULF, C.&S.F.R. CO. V. DENNIS, 224 U.S. 503; PAGEL V. MACLEAN,
283 U.S. 266; PATTERSON V. ALABAMA, SUPRA; STATE TAX COMM'N V. VAN
COTT, 306 U.S. 511; NEW YORK EX REL. WHITMAN V. WILSON, 318 U.S. 688;
ASHCRAFT V. TENNESSEE, 322 U.S. 143, 155-156; WILLIAMS V. GEORGIA, 349
U.S. 375. 

FN7  MISSOURI EX REL. WABASH R. CO. V. PUBLIC SERVICE COMM'N, 273
U.S. 120; STEAMSHIP CO. V. JOLIFFE, 2 WALL.  450. 

FN8  STATE V. MOSLEY, 212 N.C. 766, 194 S.E. 486; STATE V. BROWN, 203
N.C. 513, 166 S.E.  396; STATE V. MARSH, SUPRA; STATE V. DANIEL, 121
N.C. 574, 28 S.E. 255; STATE V. FARRAR, 103 N.C. 411, 9 S.E. 449, 104
N.C. 702, 10 S.E. 159; STATE V. BUTTS, 91 N.C. 524; CF. AYCOCK V.
RICHARDSON, 247 N.C. 233, 100 S.E.2D 379; MASON V. MOORE COUNTY BOARD,
229 N.C. 626, 51 S.E.2D 6. 

FN9  CAMERON V. POWER CO., 137 N.C. 99, 49 S.E. 76; ARNOLD V. DENNIS,
131 N.C. 114, 42 S.E.  552; SHERRILL V. WESTERN UNION TEL. CO., 116
N.C. 654, 21 S.E. 400; BROADWELL V. RAY, 111 N.C.  457, 16 S.E. 408;
LOWE V. ELLIOTT, 107 N.C. 718, 12 S.E. 383; CF. AYCOCK V. RICHARDSON,
247 N.C.  233, 100 S.E.2D 379; MASON V. MOORE COUNTY BOARD, 229 N.C.
626, 51 S.E.2D 6. 

FN10  CAMERON V. POWER CO., 137 N.C. 99, 49 S.E. 76; SHERRILL V.
WESTERN UNION TEL. CO., 116 N.C. 654, 21 S.E. 400; BROADWELL V. RAY,
111 N.C. 457, 16 S.E. 408; STATE V. DANIEL, 121 N.C.  574, 28 S.E.
255. 

FN11  ARNOLD V. DENNIS, 131 N.C. 114, 42 S.E. 552; STATE V. DANIEL,
121 N.C. 574, 28 S.E. 255. 

FN12  SMITH V. CAPITAL COCA-COLA BOTTLING CO., 221 N.C. 202, 19
S.E.2D 626; GORHAM V. PACIFIC MUT. LIFE INS. CO., SUPRA; MILLER V.
SCOTT, 185 N.C. 93, 116 S.E. 86. 

FN13  STATE V. MOSLEY, 212 N.C. 766, 194 S.E. 486; STATE V. BROWN,
203 N.C. 513, 166 S.E.  396; CAMERON V. POWER CO., 137 N.C. 99, 49 S.E.
76; STATE V. MARSH, SUPRA; SHERRILL V. WESTERN UNION TEL. CO., 116 N.C.
654, 21 S.E. 400; BROADWELL V. RAY, 111 N.C. 457, 16 S.E. 408. 

FN14  SEE AYCOCK V. RICHARDSON, 247 N.C. 233, 100 S.E.2D 379; MASON
V. MOORE COUNTY BOARD, 229 N.C. 626, 51 S.E.2D 6; STATE V. BUTTS, 91
N.C. 524; STATE V. DANIEL, 121 N.C. 574, 28 S.E. 255; STATE V. FARRER,
103 N.C. 411, 9 S.E. 449, 104 N.C. 702, 10 S.E. 159. 

FN15  AYCOCK V. RICHARDSON, 247 N.C. 233, 100 S.E.2D 379; MASON V.
MOORE COUNTY BOARD, 229 N.C. 626, 51 S.E.2D 6. 

FN16  N.C.S.C. RULE 19(1).  RULE 19(1) SETS OUT THE REQUIREMENTS AS
TO FORM AND CONTENT OF TRANSCRIPTS ON APPEAL.  AFTER SETTING OUT THESE
REQUIREMENTS, IT RECITES:  "PROVIDED, FURTHER, THAT THIS RULE IS
SUBJECT TO THE POWER OF THIS COURT TO ORDER ADDITIONAL PAPERS AND PARTS
OF THE RECORD TO BE SENT UP." 

FN17  UNDER MY VIEW OF THE CASE, IT IS UNNECESSARY TO DECIDE WHETHER
THE NORTH CAROLINA COURT'S BROAD POWERS WITH RESPECT TO THE RECORD, AND
THE EVIDENCE OF THEIR FREQUENT EXERCISE IN THE INTERESTS OF JUSTICE,
SEE NOTES 8-16, SUPRA, ARE CONSISTENT WITH THE COURT'S REJECTION OF
APPELLANTS' ARGUMENT, BASED ON WILLIAMS V. GEORGIA, 349 U.S. 375, THAT
THE NORTH CAROLINA COURT SHOULD HAVE GONE OUTSIDE THE RECORD TO GET AT
THE TRUTH AS IT HAS IN SOME OTHER CASES.  E.G., AYCOCK V. RICHARDSON,
247 N.C. 233, 100 S.E.2D 379. 

HOWEVER, IT MAY BE WORTH NOTING IN THIS CONNECTION THAT THERE IS NO
RELEVANT DISTINCTION BETWEEN CRIMINAL CASES LIKE THIS ONE AND CIVIL
CASES LIKE AYCOCK.  CF. THE COURT'S OPINION, NOTE 10.  THE SAME
STATUTE, SAID TO LIMIT THE POWER OF THE STATE COURT TO GO OUTSIDE THE
RECORD, SEE STATE V. DEE, SUPRA, AT 512, 199 S.E., AT 732 (QUOTED BY
THE COURT), IS EQUALLY APPLICABLE TO EITHER TYPE OF CASE.   LIKEWISE,
THE APPARENTLY INFLEXIBLE RULE STATED IN THE CRIMINAL CASES CITED BY
THE COURT IS ALSO STATED IN NUMEROUS CIVIL CASES.  SEE, AS
REPRESENTATIVE, HAGAN V. JENKINS, 234 N.C. 425, 67 S.E.2D 380; BAME V.
PALMER STONE WORKS, 232 N.C. 267, 59 S.E.2D 812.  THE SAME PRECEDENTS
ARE APPLICABLE IN BOTH TYPES OF CASE.  SEE, FOR EXAMPLE, BAME V. PALMER
STONE WORKS, SUPRA, AND CONVERSELY, THE DEE AND WEAVER CASES CITED BY
THE COURT.  THEREFORE, IF THE RULE STATED IN THE CRIMINAL DECISIONS
RELIED ON BY THE COURT IS AS INFLEXIBLE AS IT PURPORTS TO BE, IT SHOULD
BE EQUALLY SO IN CIVIL CASES.  YET AYCOCK SHOWS THAT THE RULE IS LESS
RIGID IN FACT THAN IN ARTICULATION.    THE COURT ALSO DISTINGUISHES
AYCOCK BECAUSE THERE THE STATE COURT WENT OUTSIDE THE RECORD TO VERIFY
AN APPARENT LACK OF JURISDICTION.  SEE THE COURT'S OPINION, NOTE 11. 
HOWEVER, SO FAR AS HAS BEEN CALLED TO OUR ATTENTION, THE NORTH CAROLINA
COURT HAS NEVER SUGGESTED SUCH A DISTINCTION.  IT WOULD SEEM MORE
LOGICAL, THEREFORE, TO ASSUME THAT IF THE STATE COURT CAN GO OUTSIDE
THE RECORD WHERE IT APPARENTLY LACKS JURISDICTION, IT CAN DO SO WHERE
ITS JURISDICTION IS CLEAR. 
..END :




















ELKINS V. UNITED STATES 364 U.S. 206 


NO. 126.  ARGUED MARCH 28-29, 1960 - DECIDED JUNE 27, 1960 - 266 F.2D
588, JUDGMENT VACATED AND CASE REMANDED. 


1.  EVIDENCE OBTAINED BY STATE OFFICERS DURING A SEARCH WHICH, IF
CONDUCTED BY FEDERAL OFFICERS, WOULD HAVE VIOLATED THE DEFENDANT'S
IMMUNITY FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE FOURTH
AMENDMENT IS INADMISSIBLE OVER THE DEFENDANT'S TIMELY OBJECTION IN A
FEDERAL CRIMINAL TRIAL, EVEN WHEN THERE WAS NO PARTICIPATION BY FEDERAL
OFFICERS IN SEARCH AND SEIZURE.  PP. 206-224. 

2.  IN DETERMINING WHETHER THERE HAS BEEN AN UNREASONABLE SEARCH AND
SEIZURE BY STATE OFFICERS, A FEDERAL COURT MUST MAKE AN INDEPENDENT
INQUIRY, WHETHER OR NOT THERE HAS BEEN SUCH AN INQUIRY BY A STATE
COURT, AND IRRESPECTIVE OF HOW ANY SUCH INQUIRY MAY HAVE TURNED OUT. 
PP. 223-224. 

3.  THE TEST IS ONE OF FEDERAL LAW, NEITHER ENLARGED BY WHAT ONE
STATE COURT MAY HAVE COUNTENANCED, NOR DIMINISHED BY WHAT ANOTHER MAY
HAVE COLORABLY SUPPRESSED.  P. 224. 

ELKINS ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE INDICTED IN THE UNITED STATES DISTRICT COURT IN
OREGON FOR THE OFFENSE OF INTERCEPTING AND DIVULGING TELEPHONE
COMMUNICATIONS AND OF CONSPIRACY TO DO SO.  47 U.S.C. SECS. 501, 605;
18 U.S.C. SEC. 371.  BEFORE TRIAL THE PETITIONERS MADE A MOTION TO
SUPPRESS AS EVIDENCE SEVERAL TAPE AND WIRE RECORDINGS AND A RECORDING
MACHINE, WHICH HAD ORIGINALLY BEEN SEIZED BY STATE LAW ENFORCEMENT
OFFICERS IN THE HOME OF PETITIONER CLARK UNDER CIRCUMSTANCES WHICH, TWO
OREGON COURTS HAD FOUND, HAD RENDERED THE SEARCH AND SEIZURE UNLAWFUL. 
(FN1)  AT THE HEARING ON THE MOTION THE DISTRICT JUDGE ASSUMED WITHOUT
DECIDING THAT THE ARTICLES HAD BEEN OBTAINED AS THE RESULT OF AN
UNREASONABLE SEARCH AND SEIZURE, BUT DENIED THE MOTION TO SUPPRESS
BECAUSE THERE WAS NO EVIDENCE THAT ANY "AGENT OF THE UNITED STATES HAD
ANY KNOWLEDGE OR INFORMATION OR SUSPICION OF ANY KIND THAT THIS SEARCH
WAS BEING CONTEMPLATED OR WAS EVENTUALLY MADE BY THE STATE OFFICERS
UNTIL THEY READ ABOUT IT IN THE NEWSPAPER."  AT THE TRIAL THE ARTICLES
IN QUESTION WERE ADMITTED IN EVIDENCE AGAINST THE PETITIONERS, AND THEY
WERE CONVICTED. 

THE CONVICTIONS WERE AFFIRMED BY THE COURT OF APPEALS FOR THE NINTH
CIRCUIT, 266 F.2D 588.  THAT COURT AGREED WITH THE DISTRICT JUDGE THAT
IT WAS UNNECESSARY TO DETERMINE WHETHER OR NOT THE ORIGINAL STATE
SEARCH AND SEIZURE HAD BEEN LAWFUL, BECAUSE THERE HAD BEEN NO
PARTICIPATION BY FEDERAL OFFICERS.  "HENCE THE UNLAWFULNESS OF THE
STATE SEARCH AND SEIZURE, IF INDEED THEY WERE UNLAWFUL, DID NOT ENTITLE
DEFENDANTS TO AN ORDER OF THE DISTRICT COURT SUPPRESSING THE PROPERTY
SEIZED."  266 F.2D, AT 594. 

WE GRANTED CERTIORARI, 361 U.S. 810, TO CONSIDER A QUESTION OF
IMPORTANCE IN THE ADMINISTRATION OF FEDERAL JUSTICE.  THE QUESTION IS
THIS:  MAY ARTICLES OBTAINED AS THE RESULT OF AN UNREASONABLE SEARCH
AND SEIZURE BY STATE OFFICERS, WITHOUT INVOLVEMENT OF FEDERAL OFFICERS,
BE INTRODUCED IN EVIDENCE AGAINST A DEFENDANT OVER HIS TIMELY OBJECTION
IN A FEDERAL CRIMINAL TRIAL?  IN A WORD, WE RE-EXAMINE HERE THE
VALIDITY OF WHAT HAS COME TO BE CALLED THE SILVER PLATTER DOCTRINE. 
(FN2)  FOR THE REASONS THAT FOLLOW WE CONCLUDE THAT THIS DOCTRINE CAN
NO LONGER BE ACCEPTED. 

TO PUT THE ISSUE IN HISTORIC PERSPECTIVE, THE APPROPRIATE STARTING
POINT MUST BE WEEKS V. UNITED STATES, 232 U.S. 383, DECIDED IN 1914. 
IT WAS THERE THAT THE COURT ESTABLISHED THE RULE WHICH EXCLUDES IN A
FEDERAL CRIMINAL PROSECUTION EVIDENCE OBTAINED BY FEDERAL AGENTS IN
VIOLATION OF THE DEFENDANT'S FOURTH AMENDMENT RIGHTS.  THE FOUNDATION
FOR THAT DECISION WAS SET OUT IN FORTHRIGHT WORDS: 

"THE EFFECT OF THE FOURTH AMENDMENT IS TO PUT THE COURTS OF THE
UNITED STATES AND FEDERAL OFFICIALS, IN THE EXERCISE OF THEIR POWER AND
AUTHORITY, UNDER LIMITATIONS AND RESTRAINTS AS TO THE EXERCISE OF SUCH
POWER AND AUTHORITY, AND TO FOREVER SECURE THE PEOPLE, THEIR PERSONS,
HOUSES, PAPERS AND EFFECTS AGAINST ALL UNREASONABLE SEARCHES AND
SEIZURES UNDER THE GUISE OF LAW.  THIS PROTECTION REACHES ALL ALIKE,
WHETHER ACCUSED OF CRIME OR NOT, AND THE DUTY OF GIVING TO IT FORCE AND
EFFECT IS OBLIGATORY UPON ALL ENTRUSTED UNDER OUR FEDERAL SYSTEM WITH
THE ENFORCEMENT OF THE LAWS.  THE TENDENCY OF THOSE WHO EXECUTE THE
CRIMINAL LAWS OF THE COUNTRY TO OBTAIN CONVICTION BY MEANS OF UNLAWFUL
SEIZURES AND ENFORCED CONFESSIONS, THE LATTER OFTEN OBTAINED AFTER
SUBJECTING ACCUSED PERSONS TO UNWARRANTED PRACTICES DESTRUCTIVE OF
RIGHTS SECURED BY THE FEDERAL CONSTITUTION, SHOULD FIND NO SANCTION IN
THE JUDGMENTS OF THE COURTS WHICH ARE CHARGED AT ALL TIMES WITH THE
SUPPORT OF THE CONSTITUTION AND TO WHICH PEOPLE OF ALL CONDITIONS HAVE
A RIGHT TO APPEAL FOR THE MAINTENANCE OF SUCH FUNDAMENTAL RIGHTS. 

     *         *         *         *         * 

"  ...  IF LETTERS AND PRIVATE DOCUMENTS CAN THUS BE SEIZED AND HELD
AND USED IN EVIDENCE AGAINST A CITIZEN ACCUSED OF AN OFFENSE, THE
PROTECTION OF THE FOURTH AMENDMENT DECLARING HIS RIGHT TO BE SECURE
AGAINST SUCH SEARCHES AND SEIZURES IS OF NO VALUE, AND, SO FAR AS THOSE
THUS PLACED ARE CONCERNED, MIGHT AS WELL BE STRICKEN FROM THE
CONSTITUTION.  THE EFFORTS OF THE COURTS AND THEIR OFFICIALS TO BRING
THE GUILTY TO PUNISHMENT, PRAISEWORTHY AS THEY ARE, ARE NOT TO BE AIDED
BY THE SACRIFICE OF THOSE GREAT PRINCIPLES ESTABLISHED BY YEARS OF
ENDEAVOR AND SUFFERING WHICH HAVE RESULTED IN THEIR EMBODIMENT IN THE
FUNDAMENTAL LAW OF THE LAND."  232 U.S. 383, 391-393. 

TO THE EXCLUSIONARY RULE OF WEEKS V. UNITED STATES THERE HAS BEEN
UNQUESTIONING ADHERENCE FOR NOW ALMOST HALF A CENTURY.  SEE
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385; GOULED V.
UNITED STATES, 255 U.S. 298; AMOS V. UNITED STATES, 255 U.S. 313;
AGNELLO V. UNITED STATES, 269 U.S. 20; GO-BART CO. V. UNITED STATES,
282 U.S. 344; GRAU V. UNITED STATES, 287 U.S. 124; MCDONALD V. UNITED
STATES, 335 U.S. 451; UNITED STATES V. JEFFERS, 342 U.S. 48. 

BUT THE WEEKS CASE ALSO ANNOUNCED, UNOBTRUSIVELY BUT NONETHELESS
DEFINITELY, ANOTHER EVIDENTIARY RULE.  SOME OF THE ARTICLES USED AS
EVIDENCE AGAINST WEEKS HAD BEEN UNLAWFULLY SEIZED BY LOCAL POLICE
OFFICERS ACTING ON THEIR OWN ACCOUNT.  THE COURT HELD THAT THE
ADMISSION OF THIS EVIDENCE WAS NOT ERROR FOR THE REASON THAT "THE
FOURTH AMENDMENT IS NOT DIRECTED TO INDIVIDUAL MISCONDUCT OF SUCH
OFFICIALS.  ITS LIMITATIONS REACH THE FEDERAL GOVERNMENT AND ITS
AGENCIES."  232 U.S., AT 398.  DESPITE THE LIMITED DISCUSSION OF THIS
SECOND RULING IN THE WEEKS OPINION, THE RIGHT OF THE PROSECUTOR IN A
FEDERAL CRIMINAL TRIAL TO AVAIL HIMSELF OF EVIDENCE UNLAWFULLY SEIZED
BY STATE OFFICERS APPARENTLY WENT UNQUESTIONED FOR THE NEXT THIRTY-FIVE
YEARS.  SEE, E.G., BYARS V. UNITED STATES, 273 U.S. 28, 33; FELDMAN V.
UNITED STATES, 322 U.S. 487, 492.  (FN3) 

THAT SUCH A RULE WOULD ENGENDER PRACTICAL DIFFICULTIES IN AN ERA OF
EXPANDING FEDERAL CRIMINAL JURISDICTION COULD NOT, PERHAPS, HAVE BEEN
FORESEEN.  IN ANY EVENT THE DIFFICULTIES SOON APPEARED.  THEY AROSE
FROM THE ENTIRELY COMMENDABLE PRACTICE OF STATE AND FEDERAL AGENTS TO
COOPERATE WITH EACH OTHER IN THE INVESTIGATION AND DETECTION OF
CRIMINAL ACTIVITY.  WHEN IN A FEDERAL CRIMINAL PROSECUTION EVIDENCE
WHICH HAD BEEN ILLEGALLY SEIZED BY STATE OFFICERS WAS SOUGHT TO BE
INTRODUCED, THE QUESTION INEVITABLY AROSE WHETHER THERE HAD BEEN SUCH
PARTICIPATION BY THE FEDERAL AGENTS IN THE SEARCH AND SEIZURE AS TO
MAKE APPLICABLE THE EXCLUSIONARY RULE OF WEEKS.  SEE FLAGG V. UNITED
STATES, 233 FED. 481; 483; UNITED STATES V. SLUSSER, 270 FED. 818, 820;
UNITED STATES V. FALLOCO, 277 FED. 75, 82; LEGMAN V. UNITED STATES, 295
FED. 474, 476-478; MARRON V. UNITED STATES, 8 F.2D 251; 259; UNITED
STATES V. BROWN, 8 F.2D 630, 631. 

THIS COURT FIRST CAME TO GRIPS WITH THE PROBLEM IN BYARS V. UNITED
STATES, 273 U.S. 28.  THERE IT WAS HELD THAT WHEN THE PARTICIPATION OF
THE FEDERAL AGENT IN THE SEARCH WAS "UNDER COLOR OF HIS FEDERAL OFFICE"
AND THE SEARCH "IN SUBSTANCE AND EFFECT WAS A JOINT OPERATION OF THE
LOCAL AND FEDERAL OFFICERS," THEN THE EVIDENCE MUST BE EXCLUDED,
BECAUSE "THE EFFECT IS THE SAME AS THOUGH THE FEDERAL AGENT HAD ENGAGED
IN THE UNDERTAKING AS ONE EXCLUSIVELY HIS OWN."  273 U.S., AT 33.  IN
GAMBINO V. UNITED STATES, 275 U.S. 310, THE COURT WENT FURTHER.  THERE
STATE OFFICERS HAD SEIZED LIQUOR FROM THE DEFENDANTS' AUTOMOBILE AFTER
AN UNLAWFUL SEARCH IN WHICH NO FEDERAL OFFICERS HAD PARTICIPATED.  THE
LIQUOR WAS ADMITTED IN EVIDENCE AGAINST THE DEFENDANTS IN THEIR
SUBSEQUENT FEDERAL TRIAL FOR VIOLATION OF THE NATIONAL PROHIBITION
ACT.  THIS COURT REVERSED THE JUDGMENTS OF CONVICTION, HOLDING THAT THE
ILLEGALLY SEIZED EVIDENCE SHOULD HAVE BEEN EXCLUDED.  POINTING OUT THAT
THERE WAS "NO SUGGESTION THAT THE DEFENDANTS WERE COMMITTING, AT THE
TIME OF THE ARREST, SEARCH AND SEIZURE, ANY STATE OFFENSE; OR THAT THEY
HAD DONE SO IN THE PAST; OR THAT THE STATE TROOPERS BELIEVED THAT THEY
HAD," THE COURT FOUND THAT "THE WRONGFUL ARREST, SEARCH AND SEIZURE
WERE MADE SOLELY ON BEHALF OF THE UNITED STATES."  275 U.S., AT 314,
316. 

DESPITE THESE DECISIONS, OR PERHAPS BECAUSE OF THEM, CASES KEPT
ARISING IN WHICH THE FEDERAL COURTS WERE FACED WITH DETERMINING WHETHER
THERE HAD BEEN SUCH PARTICIPATION BY FEDERAL OFFICERS IN A LAWLESS
STATE SEARCH AS TO MAKE INADMISSIBLE IN EVIDENCE THAT WHICH HAD BEEN
SEIZED.  AND IT IS FAIR TO SAY THAT IN THEIR APPROACH TO THIS RECURRING
QUESTION, NO LESS THAN IN THEIR DISPOSITION OF CONCRETE CASES, THE
FEDERAL COURTS DID NOT FIND THEMSELVES IN COMPLETE HARMONY, NOR EVEN
INTERNALLY SELF-CONSISTENT.  (FN4)  NO LESS DIFFICULTY WAS EXPERIENCED
BY THE COURTS IN DETERMINING WHETHER, EVEN IN THE ABSENCE OF ACTUAL
PARTICIPATION BY FEDERAL AGENTS, THE STATE OFFICERS' ILLEGAL SEARCH AND
SEIZURE HAD NEVERTHELESS BEEN MADE "SOLELY ON BEHALF OF THE UNITED
STATES."  (FN5) 

BUT DIFFICULT AND UNPREDICTABLE AS MAY HAVE BEEN THEIR APPLICATION TO
CONCRETE CASES, THE CONTROLLING PRINCIPLES SEEMED CLEAR UP TO 1949. 
EVIDENCE WHICH HAD BEEN SEIZED BY FEDERAL OFFICERS IN VIOLATON OF THE
FOURTH AMENDMENT COULD NOT BE USED IN A FEDERAL CRIMINAL PROSECUTION. 
EVIDENCE WHICH HAD BEEN OBTAINED BY STATE AGENTS IN AN UNREASONABLE
SEARCH AND SEIZURE WAS ADMISSIBLE, BECAUSE, AS WEEKS HAD POINTED OUT,
THE FOURTH AMENDMENT WAS NOT "DIRECTED TO" THE "MISCONDUCT OF SUCH
OFFICIALS."  BUT IF FEDERAL AGENTS HAD PARTICIPATED IN AN UNREASONABLE
SEARCH AND SEIZURE BY STATE OFFICERS, OR IF THE STATE OFFICERS HAD
ACTED SOLELY ON BEHALF OF THE UNITED STATES, THE EVIDENCE WAS
ADMISSIBLE IN A FEDERAL PROSECUTION. 

THEN CAME WOLF V. COLORADO, 338 U.S. 25.  WITH THE ULTIMATE
DETERMINATION IN WOLF - THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT DOES NOT ITSELF REQUIRE STATE COURTS TO ADOPT THE
EXCLUSIONARY RULE WITH RESPECT TO EVIDENCE ILLEGALLY SEIZED BY STATE
AGENTS - WE ARE NOT HERE DIRECTLY CONCERNED.  BUT NOTHING COULD BE OF
GREATER RELEVANCE TO THE PRESENT INQUIRY THAN THE UNDERLYING
CONSTITUTIONAL DOCTRINE WHICH WOLF ESTABLISHED.  FOR THERE IT WAS
UNEQUIVOCALLY DETERMINED BY A UNANIMOUS COURT THAT THE FEDERAL
CONSTITUTION, BY VIRTUE OF THE FOURTEENTH AMENDMENT, PROHIBITS
UNREASONABLE SEARCHES AND SEIZURES BY STATE OFFICERS.  "THE SECURITY OF
ONE'S PRIVACY AGAINST ARBITRARY INTRUSION BY THE POLICE  ...  IS  ...
IMPLICIT IN 'THE CONCEPT OF ORDERED LIBERTY' AND AS SUCH ENFORCEABLE
AGAINST THE STATES THROUGH THE DUE PROCESS CLAUSE."  338 U.S. 25, 27
28.  THE COURT HAS SUBSEQUENTLY FOUND FREQUENT OCCASION TO REITERATE
THIS STATEMENT FROM WOLF.  SEE STEFANELLI V. MINARD, 342 U.S. 117, 119;
IRVINE V. CALIFORNIA, 347 U.S. 128; 132; FRANK V. MARYLAND, 359 U.S.
360, 362-363. 

THE FOUNDATION UPON WHICH THE ADMISSIBILITY OF STATE-SEIZED EVIDENCE
IN A FEDERAL TRIAL ORIGINALLY RESTED - THAT UNREASONABLE STATE SEARCHES
DID NOT VIOLATE THE FEDERAL CONSTITUTION - THUS DISAPPEARED IN 1949. 
THIS REMOVAL OF THE DOCTRINAL UNDERPINNING FOR THE ADMISSIBILITY RULE
HAS APPARENTLY ESCAPED THE ATTENTION OF MOST OF THE FEDERAL COURTS,
WHICH HAVE CONTINUED TO APPROVE THE ADMISSION OF EVIDENCE ILLEGALLY
SEIZED BY STATE OFFICERS WITHOUT SO MUCH AS EVEN DISCUSSING THE IMPACT
OF WOLF.  (FN6)  ONLY TWO OF THE COURTS OF APPEALS WHICH HAVE ADHERED
TO THE ADMISSIBILITY RULE APPEAR TO HAVE RECOGNIZED THAT WOLF CASTS
DOUBT UPON ITS CONTINUING VALIDITY.  JONES V. UNITED STATES, 217 F.2D
381 (C.A. 8TH CIR.); UNITED STATES V. BENANTI, 244 F.2D 389 (C.A.2D
CIR.), REVERSED ON OTHER GROUNDS, 355 U.S. 96.  CF. KENDALL V. UNITED
STATES, 272 F.2D 163, 165 (C.A. 5TH CIR.). THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA HAS BEEN ALONE IN SQUARELY HOLDING "THAT THE WEEKS
AND THE WOLF DECISIONS, CONSIDERED TOGETHER, MAKE ALL EVIDENCE OBTAINED
BY UNCONSTITUTIONAL SEARCH AND SEIZURE UNACCEPTABLE IN FEDERAL
COURTS."  HANNA V. UNITED STATES, 104 U.S. APP. D.C. 205, 209, 260 F.2D
723, 727. 

YET THIS COURT'S AWARENESS THAT THE CONSTITUTIONAL DOCTRINE OF WOLF
OPERATED TO UNDERMINE THE LOGICAL FOUNDATION OF THE WEEKS ADMISSIBILITY
RULE HAS BEEN MANIFEST FROM THE VERY DAY THAT WOLF WAS DECIDED.  IN
LUSTIG V. UNITED STATES, 338 U.S. 74, DECIDED THAT DAY, THE PREVAILING
OPINION CAREFULLY LEFT OPEN THE QUESTION OF THE CONTINUING VALIDITY OF
THE ADMISSIBILITY RULE.  "WHERE THERE IS PARTICIPATION ON THE PART OF
FEDERAL OFFICERS," THE OPINION SAID, "IT IS NOT NECESSARY TO CONSIDER
WHAT WOULD BE THE RESULT IF THE SEARCH HAD BEEN CONDUCTED ENTIRELY BY
STATE OFFICERS."  338 U.S., AT 79.  AND IN BENANTI V. UNITED STATES,
355 U.S. 96, THE COURT WAS AT PAINS TO POINT OUT THAT "IT HAS REMAINED
AN OPEN QUESTION IN THE COURT WHETHER EVIDENCE OBTAINED SOLELY BY STATE
AGENTS IN AN ILLEGAL SEARCH MAY BE ADMISSIBLE IN FEDERAL COURT  ...
."  355 U.S., AT 102, NOTE 10.  THERE THE QUESTION HAS STOOD FOR 11
YEARS. 

IF RESOLUTION OF THE ISSUE WERE TO BE DICTATED SOLELY BY PRINCIPLES
OF LOGIC, IT IS CLEAR WHAT OUR DECISION WOULD HAVE TO BE.  FOR SURELY
NO DISTINCTION CAN LOGICALLY BE DRAWN BETWEEN EVIDENCE OBTAINED IN
VIOLATION OF THE FOURTH AMENDMENT AND THAT OBTAINED IN VIOLATION OF THE
FOURTEENTH.  THE CONSTITUTION IS FLOUTED EQUALLY IN EITHER CASE.  TO
THE VICTIM IT MATTERS NOT WHETHER HIS CONSTITUTIONAL RIGHT HAS BEEN
INVADED BY A FEDERAL AGENT OR BY A STATE OFFICER.  (FN7)  IT WOULD BE A
CURIOUSLY AMBIVALENT RULE THAT WOULD REQUIRE THE COURTS OF THE UNITED
STATES TO DIFFERENTIATE BETWEEN UNCONSTITUTIONALLY SEIZED EVIDENCE UPON
SO ARBITRARY A BASIS.  SUCH A DISTINCTION INDEED WOULD APPEAR TO
REFLECT AN INDEFENSIBLY SELECTIVE EVALUATION OF THE PROVISIONS OF THE
CONSTITUTION.  MOREOVER, IT WOULD SEEM LOGICALLY IMPOSSIBLE TO JUSTIFY
A POLICY THAT WOULD BAR FROM A FEDERAL TRIAL WHAT STATE OFFICERS HAD
OBTAINED IN VIOLATION OF A FEDERAL STATUTE, YET WOULD ADMIT THAT WHICH
THEY HAD SEIZED IN VIOLATION OF THE CONSTITUTION ITSELF.  CF.  BENANTI
V. UNITED STATES, 355 U.S. 96. 

MERE LOGICAL SYMMETRY AND ABSTRACT REASONING ARE PERHAPS NOT ENOUGH,
HOWEVER, TO SUPPORT A DOCTRINE THAT WOULD EXCLUDE RELEVANT EVIDENCE
FROM THE TRIAL OF A FEDERAL CRIMINAL CASE.  IT IS TRUE THAT THERE IS
NOT INVOLVED HERE AN ABSOLUTE OR QUALIFIED TESTIMONIAL PRIVILEGE SUCH
AS THAT ACCORDED A SPOUSE, A PATIENT, OR A PENITENT, WHICH IRREVOCABLY
BARS OTHERWISE ADMISSIBLE EVIDENCE BECAUSE OF THE STATUS OF THE WITNESS
OR HIS RELATIONSHIP TO THE DEFENDANT.  CF. HAWKINS V. UNITED STATES,
358 U.S. 74.  A RULE WHICH WOULD EXCLUDE EVIDENCE IF, AND ONLY IF,
GOVERNMENT OFFICIALS IN A PARTICULAR CASE HAD CHOSEN TO ENGAGE IN
UNLAWFUL CONDUCT OF A DIFFERENT ORDER.  YET, ANY APPARENT LIMITATION
UPON THE PROCESS OF DISCOVERING TRUTH IN A FEDERAL TRIAL OUTHT TO BE
IMPOSED ONLY UPON THE BASIS OF CONSIDERATIONS WHICH OUTWEIGH THE
GENERAL NEED FOR UNTRAMMELED DISCLOSURE OF COMPETENT AND RELEVANT
EVIDENCE IN A COURT OF JUSTICE. 

WHAT IS HERE INVOKED IS THE COURT'S SUPERVISORY POWER OVER THE
ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL COURTS, UNDER WHICH
THE COURT HAS "FROM THE VERY BEGINNING OF ITS HISTORY, FORMULATED RULES
OF EVIDENCE TO BE APPLIED IN FEDERAL CRIMINAL PROSECUTIONS."  MCNABB V.
UNITED STATES, 318 U.S. 332, 341.  IN DEVISING SUCH EVIDENTIARY RULES,
WE ARE TO BE GOVERNED BY "PRINCIPLES OF THE COMMON LAW AS THEY MAY BE
INTERPRETED  ...  IN THE LIGHT OF REASON AND EXPERIENCE."  RULE 26,
FED. RULES CRIM. PROC. DETERMINATION OF THE ISSUE BEFORE US MUST
ULTIMATELY DEPEND, THEREFORE, UPON EVALUATION OF THE EXCLUSIONARY RULE
ITSELF IN THE CONTEXT HERE PRESENTED. 

THE EXCLUSIONARY RULE HAS FOR DECADES BEEN THE SUBJECT OF ARDENT
CONTROVERSY.  THE ARGUMENTS OF ITS ANTAGONISTS AND OF ITS PROPONENTS
HAVE BEEN SO MANY TIMES MARSHALLED AS TO REQUIRE NO LENGTHY ELABORATION
HERE.  MOST OF WHAT HAS BEEN SAID IN OPPOSITION TO THE RULE WAS
DISTILLED IN A SINGLE CARDOZO SENTENCE - "THE CRIMINAL IS TO GO FREE
BECAUSE THE CONSTABLE HAS BLUNDERED."  PEOPLE V. DEFORE, 242 N.Y. 13,
21, 150 N.E. 585, 587.  THE SAME POINT WAS MADE AT SOMEWHAT GREATER
LENGTH IN THE OFTEN QUOTED WORDS OF PROFESSOR WIGMORE:  "TITUS, YOU
HAVE BEEN FOUND GUILTY OF CONDUCTING A LOTTERY; FLAVIUS, YOU HAVE
CONFESSEDLY VIOLATED THE CONSTITUTION.  TITUS OUGHT TO SUFFER
IMPRISONMENT FOR CRIME, AND FLAVIUS FOR CONTEMPT.  BUT NO]  WE SHALL
LET YOU BOTH GO FREE.  WE SHALL NOT PUNISH FLAVIUS DIRECTLY, BUT SHALL
DO SO BY REVERSING TITUS' CONVICTION.  THIS IS OUR WAY OF TEACHING
PEOPLE LIKE FLAVIUS TO BEHAVE, AND OF TEACHING PEOPLE LIKE TITUS TO
BEHAVE, AND INCIDENTALLY OF SECURING RESPECT FOR THE CONSTITUTION.  OUR
WAY OF UPHOLDING THE CONSTITUTION IS NOT TO STRIKE AT THE MAN WHO
BREAKS IT, BUT TO LET OFF SOMEBODY ELSE WHO BROKE SOMETHING ELSE."  8
WIGMORE, EVIDENCE (3D ED. 1940), SEC. 2184. 

YET, HOWEVER, FELICITOUS THEIR PHRASING, THESE OBJECTIONS HARDLY
ANSWER THE BASIC POSTULATE OF THE EXCLUSIONARY RULE ITSELF.  THE RULE
IS CALCULATED TO PREVENT, NOT TO REPAIR.  ITS PURPOSE IS TO DETER - TO
COMPEL RESPECT FOR THE CONSTITUTIONAL GUARANTY IN THE ONLY EFFECTIVELY
AVAILABLE WAY - BY REMOVING THE INCENTIVE TO DISREGARD IT.  SEE
ELEUTERI V. RICHMAN, 26 N.J. 506, 513, 141 A.2D 46, 50.   MR. JUSTICE
JACKSON SUMMED IT UP WELL: 

"ONLY OCCASIONAL AND MORE FLAGRANT ABUSES COME TO THE ATTENTION OF
THE COURTS, AND THEN ONLY THOSE WHERE THE SEARCH AND SEIZURE YIELDS
INCRIMINATING EVIDENCE AND THE DEFENDANT IS AT LEAST SUFFICIENTLY
COMPROMISED TO BE INDICTED.  IF THE OFFICERS RAID A HOME, AN OFFICE, OR
STOP AND SEARCH AN AUTOMOBILE BUT FIND NOTHING INCRIMINATING, THIS
INVASION OF THE PERSONAL LIBERTY OF THE INNOCENT TOO OFTEN FINDS NO
PRACTICAL REDRESS.  THERE MAY BE, AND I AM CONVINCED THAT THERE ARE,
MANY UNLAWFUL SEARCHES OF HOMES AND AUTOMOBILES OF INNOCENT PEOPLE
WHICH TURN UP NOTHING INCRIMINATING, IN WHICH NO ARREST IS MADE, ABOUT
WHICH COURTS DO NOTHING, AND ABOUT WHICH WE NEVER HEAR. 

"COURTS CAN PROTECT THE INNOCENT AGAINST SUCH INVASIONS ONLY
INDIRECTLY AND THROUGH THE MEDIUM OF EXCLUDING EVIDENCE OBTAINED
AGAINST THOSE WHO FREQUENTLY ARE GUILTY."  BRINEGAR V. UNITED STATES,
338 U.S. 160, 181 (DISSENTING OPINION). 

EMPIRICAL STATISTICS ARE NOT AVAILABLE TO SHOW THAT THE INHABITANTS
OF STATES WHICH FOLLOW THE EXCLUSIONARY RULE SUFFER LESS FROM LAWLESS
SEARCHES AND SEIZURES THAN DO THOSE OF STATES WHICH ADMIT EVIDENCE
UNLAWFULLY OBTAINED.  SINCE AS A PRACTICAL MATTER IT IS NEVER EASY TO
PROVE A NEGATIVE, IT IS HARDLY LIKELY THAT CONCLUSIVE FACTUAL DATA
COULD EVER BE ASSEMBLED.  FOR MUCH THE SAME REASON, IT CANNOT
POSITIVELY BE DEMONSTRATED THAT ENFORCEMENT OF THE CRIMINAL LAW IS
EITHER MORE OR LESS EFFECTIVE UNDER EITHER RULE. 

BUT PRAGMATIC EVIDENCE OF A SORT IS NOT WANTING.  THE FEDERAL COURTS
THEMSELVES HAVE OPERATED UNDER THE EXCLUSIONARY RULE OF WEEKS FOR
ALMOST HALF A CENTURY; YET IT HAS NOT BEEN SUGGESTED EITHER THAT THE
FEDERAL BUREAU OF INVESTIGATION HAS THEREBY BEEN RENDERED INEFFECTIVE,
OR THAT THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL COURTS
HAS THEREBY BEEN DISRUPTED.  (FN8) MOREOVER, THE EXPERIENCE OF THE
STATES IS IMPRESSIVE.  NOT MORE THAN HALF THE STATES CONTINUE TOTALLY
TO ADHERE TO THE RULE THAT EVIDENCE IS FREELY ADMISSIBLE NO MATTER HOW
IT WAS OBTAINED.  (FN9)  MOST OF THE OTHERS HAVE ADOPTED THE
EXCLUSIONARY RULE IN ITS ENTIRETY; THE REST HAVE ADOPTED IT IN PART. 
(FN10)  THE MOVEMENT TOWARDS THE RULE OF EXCLUSION HAS BEEN HALTING BUT
SEEMINGLY INEXORABLE.  (FN11)  SINCE THE WOLF DECISION ONE STATE HAS
SWITCHED ITS POSITION IN THAT DIRECTION BY LEGISLATION, (FN12) AND TWO
OTHERS BY JUDICIAL DECISION.  (FN13)  ANOTHER STATE, UNCOMMITTED UNTIL
1955, IN THAT YEAR ADOPTED THE RULE OF EXCLUSION.  (FN14)
SIGNIFICANTLY, MOST OF THE EXCLUSIONARY STATES WHICH HAVE HAD TO
CONSIDER THE ISSUE HAVE HELD THAT EVIDENCE OBTAINED BY FEDERAL OFFICERS
IN A SEARCH AND SEIZURE UNLAWFUL UNDER THE FOURTH AMENDMENT MUST BE
SUPPRESSED IN A PROSECUTION IN THE STATE COURTS.  STATE V. ARREGUI, 44
IDAHO 43, 254 P. 788; WALTERS V. COMMONWEALTH, 199 KY. 182, 250 S.W.
839; LITTLE V. STATE, 171 MISS.  818, 159 SO. 103; STATE V. REBASTI,
306 MO. 336, 267 S.W. 858; STATE V. HITESHEW, 42 WYO. 147, 292 P. 2;
SEE RAMIREZ V. STATE, 123 TEX. CR. R. 254, 58 S.W.2D 829.  COMPARE REA
V. UNITED STATES, 350 U.S. 214. 

THE EXPERIENCE IN CALIFORNIA HAS BEEN MOST ILLUMINATING.  IN 1955 THE
SUPREME COURT OF THAT STATE RESOLUTELY TURNED ITS BACK ON MANY YEARS OF
PRECEDENT AND ADOPTED THE EXCLUSIONARY RULE.  PEOPLE V. CAHAN, 44 CAL.
2D 434, 282 P.2D 905.  "WE HAVE BEEN COMPELLED TO REACH THAT CONCLUSION
BECAUSE OTHER REMEDIES HAVE COMPLETELY FAILED TO SECURE COMPLIANCE WITH
THE CONSTITUTIONAL PROVISIONS ON THE PART OF POLICE OFFICERS WITH THE
ATTENDANT RESULT THAT THE COURTS UNDER THE OLD RULE HAVE BEEN
CONSTANTLY REQUIRED TO PARTICIPATE IN, AND IN EFFECT CONDONE, THE
LAWLESS ACTIVITIES OF LAW ENFORCEMENT OFFICERS  ...  .  EXPERIENCE HAS
DEMONSTRATED, HOWEVER, THAT NEITHER ADMINISTRATIVE, CRIMINAL NOR CIVIL
REMEDIES ARE EFFECTIVE IN SUPPRESSING LAWLESS SEARCHES AND SEIZURES. 
THE INNOCENT SUFFER WITH THE GUILTY, AND WE CANNOT CLOSE OUR EYES TO
THE EFFECT THE RULE WE ADOPT WILL HAVE ON THE RIGHTS OF THOSE NOT
BEFORE THE COURT."  44 CAL. 2D 434, AT 445, 447, 282 P.2D 905, AT 911
912, 913. 

THE CHIEF LAW ENFORCEMENT OFFICER OF CALIFORNIA WAS QUOTED AS HAVING
MADE THIS PRACTICAL EVALUATION OF THE CAHAN DECISION LESS THAN TWO
YEARS LATER: 

"THE OVER-ALL EFFECTS OF THE CAHAN DECISION, PARTICULARLY IN VIEW OF
THE RULES NOW WORKED OUT BY THE SUPREME COURT, HAVE BEEN EXCELLENT.  A
MUCH GREATER EDUCATION IS CALLED FOR ON THE PART OF ALL PEACE OFFICERS
OF CALIFORNIA.  AS A RESULT, I AM CONFIDENT THEY WILL BE MUCH BETTER
POLICE OFFICERS.   I THINK THERE IS MORE COOPERATION WITH THE DISTRICT
ATTORNEYS AND THIS WILL MAKE FOR BETTER ADMINISTRATION OF CRIMINAL
JUSTICE."  (FN15) 

IMPRESSIVE AS IS THIS EXPERIENCE OF INDIVIDUAL STATES, EVEN MORE IS
TO BE SAID FOR ADOPTION OF THE EXCLUSIONARY RULE IN THE PARTICULAR
CONTEXT HERE PRESENTED - A CONTEXT WHICH BRINGS INTO FOCUS
CONSIDERATIONS OF FEDERALISM.  THE VERY ESSENCE OF A HEALTHY FEDERALISM
DEPENDS UPON THE AVOIDANCE OF NEEDLESS CONFLICT BETWEEN STATE AND
FEDERAL COURTS.  YET WHEN A FEDERAL COURT SITTING IN AN EXCLUSIONARY
STATE ADMITS EVIDENCE LAWLESSLY SEIZED BY STATE AGENTS, IT NOT ONLY
FRUSTRATES STATE POLICY, BUT FRUSTRATES THAT POLICY IN A PARTICULARLY
INAPPROPRIATE AND IRONIC WAY.  FOR BY ADMITTING THE UNLAWFULLY SEIZED
EVIDENCE THE FEDERAL COURT SERVES TO DEFEAT THE STATE'S EFFORT TO
ASSURE OBEDIENCE TO THE FEDERAL CONSTITUTION.  IN STATES WHICH HAVE NOT
ADOPTED THE EXCLUSIONARY RULE, ON THE OTHER HAND, IT WOULD WORK NO
CONFLICT WITH LOCAL POLICY FOR A FEDERAL COURT TO DECLINE TO RECEIVE
EVIDENCE UNLAWFULLY SEIZED BY STATE OFFICERS.  THE QUESTION WITH WHICH
WE DEAL TODAY AFFECTS NOT AT ALL THE FREEDOM OF THE STATES TO DEVELOP
AND APPLY THEIR OWN SANCTIONS IN THEIR OWN WAY.  CF. WOLF V. COLORADO,
338 U.S. 25. 

FREE AND OPEN COOPERATION BETWEEN STATE AND FEDERAL LAW ENFORCEMENT
OFFICERS IF TO BE COMMENDED AND ENCOURAGED.  YET THAT KIND OF
COOPERATION IS HARDLY PROMOTED BY A RULE THAT IMPLICITLY INVITES
FEDERAL OFFICERS TO WITHDRAW FROM SUCH ASSOCIATION AND AT LEAST TACITLY
TO ENCOURAGE STATE OFFICERS IN THE DISREGARD OF CONSTITUTIONALLY
PROTECTED FREEDOM.  IF, ON THE OTHER HAND, IT IS UNDERSTOOD THAT THE
FRUIT OF AN UNLAWFUL SEARCH BY STATE AGENTS WILL BE INADMISSIBLE IN A
FEDERAL TRIAL, THERE CAN BE NO INDUCEMENT TO SUBTERFUGE AND EVASION
WITH RESPECT TO FEDERAL-STATE COOPERATION IN CRIMINAL INVESTIGATION. 
INSTEAD, FORTHRIGHT COOPERATION UNDER CONSTITUTIONAL STANDARDS WILL BE
PROMOTED AND FOSTERED. 

IT MUST ALWAYS BE REMEMBERED THAT WHAT THE CONSTITUTION FORBIDS IS
NOT ALL SEARCHES AND SEIZURES, BUT UNREASONABLE SEARCHES AND SEIZURES. 
WITHOUT PAUSING TO ANALYZE INDIVIDUAL DECISIONS, IT CAN FAIRLY BE SAID
THAT IN APPLYING THE FOURTH AMENDMENT THIS COURT HAS SELDOM SHOWN
ITSELF UNAWARE OF THE PRACTICAL DEMANDS OF EFFECTIVE CRIMINAL
INVESTIGATION AND LAW ENFORCEMENT.  INDEED, THERE ARE THOSE WHO THINK
THAT SOME OF THE COURT'S DECISIONS HAVE TIPPED THE BALANCE TOO HEAVILY
AGAINST THE PROTECTION OF THAT INDIVIDUAL PRIVACY WHICH IT WAS THE
PURPOSE OF THE FOURTH AMENDMENT TO GUARANTEE.   SEE HARRIS V. UNITED
STATES, 331 U.S. 145, 155, 183, 195 (DISSENTING OPINIONS); UNITED
STATES V. RABINOWITZ, 339 U.S. 56, 66, 68 (DISSENTING OPINIONS).  IN
ANY EVENT, WHILE INDIVIDUAL CASES HAVE SOMETIMES EVOKED "FLUCTUATING
DIFFERENCES OF VIEW," ABEL V. UNITED STATES, 362 U.S. 217, 235, IT CAN
HARDLY BE SAID THAT IN THE OVER-ALL PATTERN OF FOURTH AMENDMENT
DECISIONS THIS COURT HAS BEEN EITHER UNREALISTIC OR VISIONARY. 

THESE, THEN, ARE THE CONSIDERATIONS OF REASON AND EXPERIENCE WHICH
POINT TO THE REJECTION OF A DOCTRINE THAT WOULD FREELY ADMIT IN A
FEDERAL CRIMINAL TRIAL EVIDENCE SEIZED BY STATE AGENTS IN VIOLATION OF
THE DEFENDANT'S CONSTITUTIONAL RIGHTS.  BUT THERE IS ANOTHER
CONSIDERATION - THE IMPERATIVE OF JUDICIAL INTEGRITY.  IT WAS OF THIS
THAT MR. JUSTICE HOLMES AND MR. JUSTICE BRANDEIS SO ELOQUENTLY SPOKE IN
OLMSTEAD V. UNITED STATES, 277 U.S. 438, AT 469, 471, MORE THAN 30
YEARS AGO.   "FOR THOSE WHO AGREE WITH ME," SAID MR. JUSTICE HOLMES,
"NO DISTINCTION CAN BE TAKEN BETWEEN THE GOVERNMENT AS PROSECUTOR AND
THE GOVERNMENT AS JUDGE."  277 U.S., AT 470.  (DISSENTING OPINION.) 
"IN A GOVERNMENT OF LAWS," SAID MR. JUSTICE BRANDEIS, "EXISTENCE OF THE
GOVERNMENT WILL BE IMPERILLED IF IT FAILS TO OBSERVE THE LAW
SCRUPULOUSLY.  OUR GOVERNMENT IS THE POTENT, THE OMNIPRESENT TEACHER. 
FOR GOOD OR FOR ILL, IT TEACHES THE WHOLE PEOPLE BY ITS EXAMPLE.  CRIME
IS CONTAGIOUS.  IF THE GOVERNMENT BECOMES A LAWBREAKER, IT BREEDS
CONTEMPT FOR LAW; IT INVITES EVERY MAN TO BECOME A LAW UNTO HIMSELF; IT
INVITES ANARCHY.  TO DECLARE THAT IN THE ADMINISTRATION OF THE CRIMINAL
LAW THE END JUSTIFIES THE MEANS - TO DECLARE THAT THE GOVERNMENT MAY
COMMIT CRIMES IN ORDER TO SECURE THE CONVICTION OF A PRIVATE CRIMINAL -
WOULD BRING TERRIBLE RETRIBUTION.  AGAINST THAT PERNICIOUS DOCTRINE
THIS COURT SHOULD RESOLUTELY SET ITS FACE."  277 U.S., AT 485. 
(DISSENTING OPINION.) 

THIS BASIC PRINCIPLE WAS ACCEPTED BY THE COURT IN MCNABB V. UNITED
STATES, 318 U.S. 332.  THERE IT WAS HELD THAT "A CONVICTION RESTING ON
EVIDENCE SECURED THROUGH SUCH A FLAGRANT DISREGARD OF THE PROCEDURE
WHICH CONGRESS HAD COMMANDED CANNOT BE ALLOWED TO STAND WITHOUT MAKING
THE COURTS THEMSELVES ACCOMPLICES IN WILLFUL DISOBEDIENCE OF LAW."  318
U.S., AT 345.  EVEN LESS SHOULD THE FEDERAL COURTS BE ACCOMPLICES IN
THE WILLFUL DISOBEDIENCE OF A CONSTITUTION THEY ARE SWORN TO UPHOLD. 

FOR THESE REASONS WE HOLD THAT EVIDENCE OBTAINED BY STATE OFFICERS
DURING A SEARCH WHICH, IF CONDUCTED BY FEDERAL OFFICERS, WOULD HAVE
VIOLATED THE DEFENDANT'S IMMUNITY FROM UNREASONABLE SEARCHES AND
SEIZURES UNDER THE FOURTH AMENDMENT IS INADMISSIBLE OVER THE
DEFENDANT'S TIMELY OBJECTION IN A FEDERAL CRIMINAL TRIAL.  (FN16)  IN
DETERMINING WHETHER THERE HAS BEEN AN UNREASONABLE SEARCH AND SEIZURE
BY STATE OFFICERS, A FEDERAL COURT MUST MAKE AN INDEPENDENT INQUIRY,
WHETHER OF NOR THERE HAS BEEN SUCH AN INQUIRY BY A STATE COURT, AND
IRRESPECTIVE OF HOW ANY SUCH INQUIRY MAY HAVE TURNED OUT.  THE TEST IS
ONE OF FEDERAL LAW, NEITHER ENLARGED BY WHAT ONE STATE COURT MAY HAVE
COUNTENANCED, NOR DIMINISHED BY WHAT ANOTHER MAY HAVE COLORABLY
SUPPRESSED.    THE JUDGMENT OF THE COURT OF APPEALS IS SET ASIDE, AND
THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  VACATED AND REMANDED.   FN1  THE STATE
OFFICERS, HAVING RECEIVED INFORMATION THAT PETITIONERS HAD IN THEIR
POSSESSION OBSCENE MOTION PICTURES, PROCURED A SEARCH WARRANT TO SEARCH
PETITIONER CLARK'S HOME.  THE AFFIDAVIT UPON WHICH THE WARRANT WAS
BASED RECITED THAT "UPON INFORMATION AND BELIEF" IT WAS THOUGHT THAT
CLARK POSSESSED OBSCENE PICTURES AND ACCOMPANYING SOUND RECORDINGS. 
THE SEARCH REVEALED NO OBSCENE PICTURES, BUT VARIOUS PARAPHERNALIA
BELIEVED TO HAVE BEEN USED IN MAKING WIRETAPS WERE FOUND AND SEIZED. 

FOLLOWING AN APPROPRIATE MOTION, THE MULTNOMAH COUNTY DISTRICT COURT
HELD THE SEARCH WARRANT INVALID AND ORDERED SUPPRESSION OF THE
EVIDENCE.  THIS ACTION CAME, HOWEVER, AFTER THE RETURN OF AN INDICTMENT
BY A STATE GRAND JURY, AND THE LOCAL DISTRICT ATTORNEY CHALLENGED THE
POWER OF THE DISTRICT COURT TO SUPPRESS EVIDENCE ONCE AN INDICTMENT WAS
IN.  ACCORDINGLY, THE QUESTION WAS LATER ARGUED ANEW ON A MOTION TO
SUPPRESS IN THE CIRCUIT COURT FOR MULTONOMAH COUNTY, A COURT OF GENERAL
CRIMINAL JURISDICTION.  THE COURT HELD THE SEARCH UNLAWFUL AND GRANTED
THE MOTION TO SUPPRESS.  THE STATE INDICTMENT WAS SUBSEQUENTLY
DISMISSED. 

DURING THE COURSE OF THESE STATE PROCEEDINGS FEDERAL OFFICERS, ACTING
UNDER A FEDERAL SEARCH WARRANT, OBTAINED THE ARTICLES FROM THE SAFE
DEPOSIT BOX OF A LOCAL BANK WHERE THE STATE OFFICIALS HAD PLACED THEM. 
SHORTLY AFTER THE STATE CASE WAS ABANDONED, A FEDERAL INDICTMENT WAS
RETURNED, AND THE INSTANT PROSECUTION FOLLOWED. 

FN2  THE "SILVER PLATTER" LABEL STEMS FROM A PHRASE FIRST TURNED IN
THE PREVAILING OPINION IN LUSTIG V. UNITED STATES, 338 U.S. 74, 79. 
THE DOCTRINE HAS BEEN THE SUBJECT OF MUCH COMMENT IN LEGAL
PERIODICALS.  SEE, E.G., ALLEN, THE WOLF CASE:  SEARCH AND SEIZURE,
FEDERALISM, AND THE CIVIL LIBERTIES, 45 ILL. L. REV. 1, 14-25; GALLER,
THE EXCLUSION OF ILLEGAL STATE EVIDENCE IN FEDERAL COURTS, 49 J. CRIM.
L., CRIMINOLOGY & POLICE SCIENCE 455; KOHN, ADMISSIBILITY IN FEDERAL
COURT OF EVIDENCE ILLEGALLY SEIZED BY STATE OFFICERS, 1959 WASH. U.L.Q.
229; KAMISAR, WOLF AND LUSTIG TEN YEARS LATER:  ILLEGAL STATE EVIDENCE
IN STATE AND FEDERAL COURTS, 43 MINN. L. REV. 1083; PARSONS, STATE
FEDERAL CROSSFIRE IN SEARCH AND SEIZURE AND SELF INCRIMINATION, 42
CORNELL L.Q. 346, 347-368; COMMENT, THE BENANTI CASE:  STATE WIRETAP
EVIDENCE AND THE FEDERAL EXCLUSIONARY RULE, 57 COL. L. REV.  1159;
COMMENT, JUDICIAL CONTROL OF ILLEGAL SEARCH AND SEIZURE, 58 YALE L.J.
144; NOTES, 51 COL. L. REV. 128, 27 GEO. WASH. L. REV. 392, 5 N.Y.L.F.
301, 6 U.C.L.A. REV. 703. 

FN3 SEE, E.G., RETTICH V. UNITED STATES, 84 F.2D 118 (C.A. 1ST CIR.);
MILBURNE V. UNITED STATES, 77 F.2D 310 (C.A.2D CIR.); MILLER V. UNITED
STATES, 50 F.2D 505 (C.A. 3D CIR.); RIGGS V. UNITED STATES, 299 FED.
273 (C.A. 4TH CIR.); TIMONEN V. UNITED STATES, 286 FED.  935 (C.A. 6TH
CIR.); FOWLER V. UNITED STATES, 62 F.2D 656 (C.A. 7TH CIR.)(DICTUM);
ELAM V. UNITED STATES, 7 F.2D 887 (C.A. 8TH CIR.); BROWN V. UNITED
STATES, 12 F.2D 926 (C.A. 9TH CIR.); GILBERT V. UNITED STATES, 163 F.2D
325 (C.A. 10TH CIR.); SHELTON V. UNITED STATES, 83 U.S. APP. D.C. 257,
169 F.2D 665, OVERRULED BY HANNA V. UNITED STATES, 104 U.S. APP.  D.C.
205, 260 F.2D 723. 

FN4  COMPARE SUTHERLAND V. UNITED STATES, 92 F.2D 305 (C.A. 4TH
CIR.); WARD V. UNITED STATES, 96 F.2D 189 (C.A. 5TH CIR.); FOWLER V.
UNITED STATES, 62 F.2D 656 (C.A. 7TH CIR.); UNITED STATES V. BUTLER,
156 F.2D 897 (C.A. 10TH CIR.); WITH KITT V. UNITED STATES, 132 F.2D 920
(C.A. 4TH CIR.); SLOANE V. UNITED STATES, 47 F.2D 889, (C.A. 10TH
CIR.). 

FN5  COMPARE UNITED STATES V. JANKOWSKI, 28 F.2D 800 (C.A.2D CIR.);
MARSH V. UNITED STATES, 29 F.2D 172 (C.A.2D CIR.); WITH UNITED STATES
V. BUTLER, 156 F.2D 897 (C.A. 10TH CIR.). 

FN6  SEE, E.G., BURFORD V. UNITED STATES, 214 F.2D 124, 125 (C.A. 5TH
CIR.); FORD V. UNITED STATES, 234 F.2D 835, 837 (C.A. 6TH CIR.); UNITED
STATES V. MOSES, 234 F.2D 124 (C.A. 7TH CIR.); WILLIAMS V. UNITED
STATES, 215 F.2D 695, 696 (C.A. 9TH CIR.); GALLEGOS V. UNITED STATES,
237 F.2D 694, 696-697 (C.A. 10TH CIR.). 

FN7 LONG BEFORE THE COURT ESTABLISHED THAT THE FOURTEENTH AMENDMENT
PROTECTS THE SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY INTRUSION BY
STATE OFFICERS, MR. JUSTICE (THEN JUDGE) CARDOZO PERCEIVED A BASIC
INCONGRUITY IN A RULE WHICH EXCLUDES EVIDENCE UNLAWFULLY OBTAINED BY
FEDERAL OFFICERS, BUT ADMITS IN THE SAME COURT EVIDENCE UNLAWFULLY
OBTAINED BY STATE AGENTS.  "THE FEDERAL RULE AS IT STANDS IS EITHER TOO
STRICT OR TOO LAX.  A FEDERAL PROSECUTOR MAY TAKE NO BENEFIT FROM
EVIDENCE COLLECTED THROUGH THE TRESPASS OF A FEDERAL OFFICER  ...  .
HE DOES NOT HAVE TO BE SO SCRUPULOUS ABOUT EVIDENCE BROUGHT TO HIM BY
OTHERS.  HOW FINELY THE LINE IS DRAWN IS SEEN WHEN WE RECALL THAT
MARSHALS IN THE SERVICE OF THE NATION ARE ON ONE SIDE OF IT, AND THE
POLICE IN THE SERVICE OF THE STATES ON THE OTHER.  THE NATION MAY KEEP
WHAT THE SERVANTS OF THE STATES SUPPLY  ...  .  WE MUST GO FARTHER OR
NOT SO FAR.  THE PROFESSED OBJECT OF THE TRESPASS RATHER THAN THE
OFFICIAL CHARACTER OF THE TRESPASSER SHOULD TEST THE RIGHTS OF
GOVERNMENT  ...  .  A GOVERNMENT WOULD BE DISINGENUOUS, IF, IN
DETERMINING THE USE THAT SHOULD BE MADE OF EVIDENCE DRAWN FROM SUCH A
SOURCE, IT DREW A LINE BETWEEN THEM.  THIS WOULD BE TRUE WHETHER THEY
HAD ACTED IN CONCERT OR APART."  PEOPLE V. DEFORE, 242 N.Y. 13, 22-23,
150 N.E. 585, 588. 

FN8  THE DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION HAS WRITTEN
AS FOLLOWS: 

"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.  OUR
PEOPLE MAY TOLERATE MANY MISTAKES OF BOTH INTENT AND PERFORMANCE, BUT,
WITH UNERRING INSTINCT, THEY KNOW THAT WHEN ANY PERSON IS INTENTIONALLY
DEPRIVED OF HIS CONSTITUTIONAL RIGHTS THOSE RESPONSIBLE HAVE COMMITTED
NO ORDINARY OFFENSE.  A CRIME OF THIS NATURE, IF SUBTLY ENCOURAGED BY
FAILURE TO CONDEMN AND PUNISH, CERTAINLY LEADS DOWN THE ROAD TO
TOTALITARIANISM. 

"CIVIL RIGHTS VIOLATIONS ARE ALL THE MORE REGRETTABLE BECAUSE THEY
ARE UNNECESSARY.  PROFESSIONAL STANDARDS IN LAW ENFORCEMENT PROVIDE FOR
FIGHTING CRIME WITH INTELLIGENCE RATHER THAN FORCE  ...  . IN MATTERS
OF SCIENTIFIC CRIME DETECTION, THE SERVICES OF OUR FBI LABORATORY ARE
AVAILABLE TO EVERY DULY CONSTITUTED LAW ENFORCEMENT OFFICER IN THE
NATION.  FULL USE OF THESE AND OTHER FACILITIES SHOULD MAKE IT ENTIRELY
UNNECESSARY FOR ANY OFFICER TO FEEL THE NEED TO USE DISHONORABLE
METHODS. 

"COMPLETE PROTECTION OF CIVIL RIGHTS SHOULD BE A PRIMARY CONCERN OF
EVERY OFFICER.  THESE RIGHTS ARE BASIC IN THE LAW AND OUR OBLIGATION TO
UPHOLD IT LEAVES NO ROOM FOR ANY OTHER COURSE OF ACTION.  ALTHOUGH THE
GREAT MAJORITY IN OUR PROFESSION HAVE LONG SINCE ADOPTED THAT POLICY,
WE CANNOT YET BE ENTIRELY PROUD OF OUR RECORD.  INCIDENTS WHICH GIVE
JUSTIFICATION TO CHARGES OF CIVIL RIGHTS VIOLATIONS BY LAW ENFORCEMENT
OFFICERS STILL OCCUR  ...  .  THIS STATE OF AFFAIRS OUGHT TO BE TAKEN
AS A CHALLENGE TO ALL OF US.  EVERY PROGRESSIVE POLICE ADMINISTRATOR
AND OFFICER MUST DO EVERYTHING IN HIS POWER TO BRING ABOUT SUCH AN
IMPROVEMENT THAT OUR CONDUCT AND OUR RECORD WILL CONCLUSIVELY PROVE
EACH OF THESE CHARGES TO BE FALSE."  FBI LAW ENFORCEMENT BULLETIN,
SEPTEMBER, 1952, PP. 1-2. 

FN9  SEE APPENDIX, POST, PP. 224-225. 

FN10  SEE APPENDIX, POST, PP. 224-225. 

FN11  FOR A DISCUSSION OF RECENT DEVELOPMENTS IN BRITISH COMMONWEALTH
JURISDICTIONS, SEE COWEN, THE ADMISSIBILITY OF EVIDENCE PROCURED
THROUGH ILLEGAL SEARCHES AND SEIZURES IN BRITISH COMMONWEALTH
JURISDICTIONS, 5 VANDERBILT L. REV. 523 (1952).  THE AUTHOR CONCLUDES
UPON A SURVEY OF COMMONWEALTH DECISIONS "THAT THERE IS NO UNIFORM RULE
ON THE ADMISSIBILITY OF EVIDENCE PROCURED THROUGH ILLEGAL SEARCHES AND
SEIZURES."  ID., AT 546. 

FN12  NORTH CAROLINA.  SEE APPENDIX, POST, P. 230. 

FN13 DELAWARE AND CALIFORNIA.  SEE APPENDIX, POST, P. 226. 

FN14  RHODE ISLAND.  SEE APPENDIX, POST, P. 231. 

FN15  EXCERPT FROM LETTER OF GOVERNOR EDMUND G. BROWN, THEN ATTORNEY
GENERAL OF THE STATE OF CALIFORNIA, TO THE STANFORD LAW REVIEW, QUOTED
IN NOTE, 9 STAN.  L. REV. 515, 538 (1957).  SEE ALSO BARRETT, EXCLUSION
OF EVIDENCE OBTAINED BY ILLEGAL SEARCHES - A COMMENT OF PEOPLE VS.
CAHAN, 43 CAL. L. REV. 565, 586-588 (1955). 

FN16  SEE RULE 41(E), FED. RULES CRIM. PROC. THE DEFENDANT, OF
COURSE, MUST HAVE "STANDING" TO OBJECT.  SEE JONES V. UNITED STATES,
362 U.S. 257. 

                         APPENDIX TO OPINION OF THE COURT. 

TABLE II. - REPRESENTATIVE CASES BY STATE, CONSIDERING THE
ADMISSIBILITY OF EVIDENCE OF

ILLEGALLY SEIZED BY THE STATE OFFICERS. 

ALABAMA

PRE-WEEKS:  SHIELDS V. STATE, 104 ALA. 35, 16 SO. 85 (ADMISSIBLE). 

PRE-WOLF:  BANKS V. STATE, 207 ALA. 179, 93 SO. 293 (ADMISSIBLE). 

POST-WOLF:  CF. OLDHAM V. STATE, 259 ALA. 507, 67 SO. 2D 55
(ADMISSIBLE). 

             (ALA. CODE, 1940 (SUPP. 1955), TIT. 29, SEC. 210,
REQUIRES THE EXCLUSION

        OF ILLEGALLY OBTAINED EVIDENCE IN THE TRIAL OF CERTAIN
ALCOHOL CONTROL

             CASES.) 

ARIZONA

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  ARGETAKIS V. STATE, 24 ARIZ. 599, 212 P. 372
(ADMISSIBLE). 

POST-WOLF:  STATE V. THOMAS, 78 ARIZ. 52, 275 P.2D 408
(ADMISSIBLE). 

ARKANSAS

PRE-WEEKS:  STARCHMAN V. STATE, 62 ARK. 538, 36 S.W. 940
(ADMISSIBLE). 

PRE-WOLF:  BENSON V. STATE, 149 ARK. 633, 233 S.W. 758
(ADMISSIBLE). 

POST-WOLF:  LANE, SMITH & BARG V. STATE, 217 ARK. 114, 229 S.W.2D
43 (ADMISSIBLE). 

CALIFORNIA

PRE-WEEKS:  PEOPLE V. LE DOUX, 155 CAL. 535, 102 P. 517
(ADMISSIBLE). 

PRE-WOLF:  PEOPLE V. MAYEN, 188 CAL. 237, 205 P. 435 (ADMISSIBLE). 

POST-WOLF:  PEOPLE V. CAHAN, 44 CAL. 2D 434, 282 P.2D 905
(EXCLUDABLE). 

COLORADO

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  MASSANTONIO V. PEOPLE, 77 COLO. 392, 236 P. 1019
(ADMISSIBLE). 

POST-WOLF:  WILLIAMS V. PEOPLE, 136 COLO. 164, 315 P.2D 189
(ADMISSIBLE). 

CONNECTICUT

PRE-WEEKS:  STATE V. GRISWOLD, 67 CONN. 290, 34 A. 1046
(ADMISSIBLE). 

PRE-WOLF:  STATE V. REYNOLDS, 101 CONN. 224, 125 A. 636
(ADMISSIBLE). 

POST-WOLF:  NO HOLDING. 

DELAWARE

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  STATE V. CHUCHOLA, 32 DEL. 133, 120 A. 212
(ADMISSIBLE). 

POST-WOLF:  RICKARDS V. STATE, 45 DEL. 573, 77 A.2D 199
(EXCLUDABLE). 

FLORIDA

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  ATZ V. ANDREWS, 84 FLA. 43, 94 SO. 329 (EXCLUDABLE). 

POST-WOLF:  BYRD V. STATE, 80 SO. 2D 694 (SUP. CT.
FLORIDA)(EXCLUDABLE). 

GEORGIA

PRE-WEEKS:  WILLIAMS V. STATE, 100 GA. 511, 28 S.E. 624
(ADMISSIBLE). 

PRE-WOLF:  JACKSON V. STATE, 156 GA. 647, 119 S.E. 525
(ADMISSIBLE). 

POST-WOLF:  ATTERBERRY V. STATE, 212 GA. 778, 95 S.E.2D 787
(ADMISSIBLE). 

IDAHO

PRE-WEEKS:  STATE V. BOND, 12 IDAHO 424, 86 P. 43 (ADMISSIBLE). 

PRE-WOLF:  STATE V. ARREGUI, 44 IDAHO 43, 254 P. 788 (EXCLUDABLE.) 

POST-WOLF:  NO HOLDING. 

ILLINOIS

PRE-WEEKS:  SIEBERT V. PEOPLE 143 ILL. 571, 32 N.E. 431
(ADMISSIBLE). 

PRE-WOLF:  PEOPLE V. CASTREE, 311 ILL. 392, 143 N.E. 112
(EXCLUDABLE). 

POST-WOLF:  CITY OF CHICAGO V. LORD, 7 ILL. 2D 379, 130 N.E.2D 504
(EXCLUDABLE). 

INDIANA

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  FLUM V. STATE, 193 IND. 585, 141 N.E. 353 (EXCLUDABLE). 

POST-WOLF:  ROHLFING V. STATE, 230 IND. 236, 102 N.E.2D 199
(EXCLUDABLE). 

IOWA

PRE-WEEKS:  STATE V. SHERIDAN, 121 IOWA 164, 96 N.W. 730
(EXCLUDABLE). 

PRE-WOLF:  STATE V. ROWLEY, 197 IOWA 977, 195 N.W. 881
(ADMISSIBLE). 

POST-WOLF:  STATE V. SMITH, 247 IOWA 500, 73 N.W.2D 189
(ADMISSIBLE). 

KANSAS

PRE-WEEKS: STATE V. MILLER, 63 KAN. 62, 64 P. 1033 (ADMISSIBLE). 

PRE-WOLF:  STATE V. JOHNSON, 116 KAN. 58, 226 P. 245 (ADMISSIBLE). 

POST-WOLF:  STATE V. PEASLEY, 179 KAN. 314, 295 P.2D 627
(ADMISSIBLE). 

KENTUCKY

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  YOUMAN V. COMMONWEALTH, 189 KY. 152, 224 S.W. 860
(EXCLUDABLE). 

POST-WOLF:  JOHNSON V. COMMONWEALTH, 296 S.W.2D 210 (CT. APP.
KENTUCKY)(EXCLUDABLE). 

LOUISIANA

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  STATE V. FLECKINGER, 152 LA. 337, 93 SO. 115
(ADMISSIBLE). 

POST-WOLF:  STATE V. MASTRICOVO, 221 LA. 312, 59 SO. 2D 403
(ADMISSIBLE). 

MAINE

PRE-WEEKS:  STATE V. GORHAM, 65 ME. 270 (ADMISSIBLE)(SEMBLE). 

PRE-WOLF:  STATE V. SCHOPPE, 113 ME. 10, 92 A. 867
(ADMISSIBLE)(SEMBLE). 

POST-WOLF:  NO HOLDING. 

MARYLAND

PRE-WEEKS:  LAWRENCE V. STATE, 103 MD. 17, 63 A. 96 (ADMISSIBLE). 

PRE-WOLF:  MEISINGER V. STATE, 155 MD. 195, 141 A. 536
(ADMISSIBLE). 

POST-WOLF:  STEVENS V. STATE, 202 MD. 117, 95 A.2D 877
(ADMISSIBLE). 

             (FLACK'S MD. ANN. CODE, 1951, ART. 35, SEC. 5 REQUIRES
THE EXCLUSION OF

         ILLEGALLY OBTAINED EVIDENCE IN THE TRIAL OF MOST
MISDEMEANORS.) 

MASSACHUSETTS

PRE-WEEKS:  COMMONWEALTH V. DANA, 43 MASS. 329 (ADMISSIBLE). 

PRE-WOLF:  COMMONWEALTH V. WILKINS, 243 MASS. 356, 138 N.E. 11
(ADMISSIBLE). 

POST-WOLF:  NO HOLDING. 

MICHIGAN

PRE-WEEKS:  PEOPLE V. ALDOFER, 164 MICH. 676, 130 N.W. 351
(ADMISSIBLE). 

PRE-WOLF:  PEOPLE V. MARXHAUSEN, 204 MICH. 559, 171 N.W. 557
(EXCLUDABLE).      POST-WOLF:  PEOPLE V. HILDABRIDLE, 353 MICH. 562, 92
N.W.2D 6 (EXCLUDABLE). 

             (ART. II, SEC. 10 OF THE MICHIGAN CONSTITUTION OF
1908, AS AMENDED, SETS

FORTH A LIMITED CLASS OF ITEMS WHICH ARE NOT EXCLUDABLE.  SEE PEOPLE
V.

             GONZALES, 356 MICH. 247, 97 N.W.2D 16.) 

MINNESOTA

PRE-WEEKS:  STATE V. STRAIT, 94 MINN. 384, 102 N.W. 913
(ADMISSIBLE). 

PRE-WOLF:  STATE V. PLUTH, 157 MINN. 145, 195 N.W. 789
(ADMISSIBLE). 

POST-WOLF:  NO HOLDING.    MISSISSIPPI

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  TUCKER V. STATE, 128 MISS.  211, 90 SO. 845
(EXCLUDABLE). 

POST-WOLF:  NOBLES V. STATE, 222 MISS.  827, 77 SO. 2D 288
(EXCLUDABLE). 

MISSOURI

PRE-WEEKS:  STATE V. POMEROY, 130 MO. 489, 32 S.W. 1002
(ADMISSIBLE). 

PRE-WOLF:  STATE V. OWENS, 302 MO. 348, 259 S.W. 100 (EXCLUDABLE). 

POST-WOLF:  STATE V. HUNT, 280 S.W.2D 37 (SUP. CT.
MISSOURI)(EXCLUDABLE). 

MONTANA

PRE-WEEKS:  STATE V. FULLER, 34 MONT. 12, 85 P. 369 (ADMISSIBLE). 

PRE-WOLF:  STATE EX REL. KING V. DISTRICT COURT, 70 MONT. 191, 224
P. 862 (EXCLUDABLE). 

POST-WOLF:  NO HOLDING. 

NEBRASKA

PRE-WEEKS:  GEIGER V. STATE, 6 NEB. 545 (ADMISSIBLE). 

PRE-WOLF:  BILLINGS V. STATE, 109 NEB. 596, 191 N.W. 721
(ADMISSIBLE). 

POST-WOLF:  HASWELL V. STATE, 167 NEB. 169, 92 N.W.2D 161
(ADMISSIBLE). 

NEVADA

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  STATE V. CHIN GIM, 47 NEV. 431, 224 P. 798
(ADMISSIBLE). 

POST-WOLF:  NO HOLDING. 

NEW HAMPSHIRE

PRE-WEEKS:  STATE V. FLYNN, 36 N.H. 64 (ADMISSIBLE). 

PRE-WOLF:  STATE V. AGALOS, 79 N.W. 241, 107 A. 314 (ADMISSIBLE). 

POST-WOLF:  STATE V. MARA, 96 N.H. 463, 78 A.2D 922 (ADMISSIBLE). 

NEW JERSEY

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  STATE V. BLACK, 5 N.J. MISC. 48, 135 A. 685
(ADMISSIBLE). 

POST-WOLF:  ELEUTERI V. RICHMAN, 26 N.J. 506, 141 A.2D 46
(ADMISSIBLE). 

           (N.J. REV. STAT. 33:1-62 PROVIDES FOR THE RETURN OF
ITEMS ILLEGALLY

             SEIZED IN THE INVESTIGATION OF CERTAIN ALCOHOL CONTROL
OFFENSES.) 

NEW MEXICO

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  STATE V. DILLON, 34 N.M. 366, 281 P. 474 (ADMISSIBLE). 

POST-WOLF:  BREITHAUPT V. ABRAM, 58 N.M. 385, 271 P.2D 827
(ADMISSIBLE). 

NEW YORK

PRE-WEEKS:  PEOPLE V. ADAMS, 176 N.Y. 351, 68 N.E. 636 (ADMISSIBLE). 

PRE-WOLF:  PEOPLE V. DEFORE, 242 N.Y. 13, 150 N.E. 585
(ADMISSIBLE). 

POST-WOLF:  PEOPLE V. VARIANO, 5 N.Y.2D 391, 157 N.E.2D 857
(ADMISSIBLE). 

NORTH CAROLINA

PRE-WEEKS:  STATE V. WALLACE, 162 N.C. 622, 78 S.E. 1
(ADMISSIBLE). 

PRE-WOLF:  STATE V. SIMMONS, 183 N.C. 684, 110 S.E. 591
(ADMISSIBLE). 

POST-WOLF:  STATE V. MILLS, 246 N.C. 237, 98 S.E.2D 329
(EXCLUDABLE). 

             (N.C. GEN. STAT. SEC. 15-27 REQUIRES THE EXCLUSION OF
ILLEGALLY OBTAINED

         EVIDENCE.) 

NORTH DAKOTA

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  STATE V. FAHN, 53 N.D. 203, 205 N.W. 67 (ADMISSIBLE). 

POST-WOLF:  NO HOLDING. 

OHIO

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  STATE V. LINDWAY, 131 OHIO ST. 166, 2 N.E.2D 490
(ADMISSIBLE). 

POST-WOLF:  STATE V. MAPP, 170 OHIO ST. 427, 166 N.E.2D 387
(ADMISSIBLE). 

OKLAHOMA

PRE-WEEKS:  SILVA V. STATE, 6 OKLA. CR. 97, 116 P. 199
(ADMISSIBLE). 

PRE-WOLF:  GORE V. STATE, 24 OKLA. CR. 394, 218 P. 545
(EXCLUDABLE). 

POST-WOLF:  HAMEL V. STATE, 317 P.2D 285 (OKLA.
CRIM.)(EXCLUDABLE). 

OREGON

PRE-WEEKS:  STATE V. MCDANIEL, 39 ORE.  161, 65 P. 520
(ADMISSIBLE). 

PRE-WOLF:  SEE STATE V. LAUNDY, 103 ORE.  443, 204 P. 958
(EXCLUDABLE), ALTHOUGH SEE

             STATE V. FOLKES, 174 ORE.  568, 150 P.2D 17 (NOT
NOTICING STATE V. LAUNDY). 

POST-WOLF:  STATE V. HOOVER, 219 ORE.  288, 347 P.2D 69
(QUESTIONING LAUNDY). 

PENNSYLVANIA

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  COMMONWEALTH V. DABBIERIO, 290 PA. 174, 138 A. 679
(ADMISSIBLE). 

POST-WOLF:  COMMONWEALTH V. CHAITT, 380 PA. 532, 112 A.2D 379
(ADMISSIBLE). 

RHODE ISLAND

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  NO HOLDING. 

POST-WOLF:  STATE V. HILLMAN, 84 R.I. 396, 125 A.2D 94 (APPLYING
COMMON LAW RULE, BUT

             NOTICING THE ENACTMENT OF THE STATUTORY RULE). 

             (R.I. GEN. LAWS, 1956, SEC. 9-19-25 REQUIRES THE
EXCLUSION OF ILLEGALLY

             OBTAINED EVIDENCE.) 

SOUTH CAROLINA

PRE-WEEKS:  STATE V. ATKINSON, 40 S.C. 363, 18 S.E. 1021
(ADMISSIBLE). 

PRE-WOLF:  STATE V. GREEN, 121 S.C. 230, 114 S.E. 317
(ADMISSIBLE). 

POST-WOLF:  STATE V. ANDERSON, 230 S.C. 191, 95 S.E.2D 164
(ADMISSIBLE). 

SOUTH DAKOTA

PRE-WEEKS:  STATE V. MADISON, 23 S.D. 584, 122 N.W. 647
(ADMISSIBLE). 

PRE-WOLF:  STATE V. GOODER, 57 S.D. 619, 234 N.W. 610
(EXCLUDABLE). 

POST-WOLF:  STATE V. POPPENGA, 76 S.D. 592, 83 N.W.2D 518
(EXCLUDABLE). 

             S.D. CODE, 1939, SEC. 34.1102 PROVIDES FOR A LIMITED
RETURN TO THE COMMON-LAW

             RULE OF ADMISSIBILITY.  SEE STATE V. LANE, 76 S.D.
544, 82 N.W.2D 286. 

TENNESSEE

PRE-WEEKS:  COHN V. STATE, 120 TENN. 61, 109 S.W. 1149
(ADMISSIBLE). 

PRE-WOLF:  HUGHES V. STATE, 145 TENN. 544, 238 S.W. 588
(EXCLUDABLE). 

POST-WOLF:  LINDSEY V. STATE, 191 TENN. 51, 231 S.W.2D 380
(EXCLUDABLE). 

TEXAS

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  CHAPIN V. STATE, 107 TEX. CR. R. 477, 296 S.W. 1095
(EXCLUDABLE). 

POST-WOLF:  WILLIAMSON V. STATE, 156 TEX. CR. R. 520, 244 S.W.2D
202 (EXCLUDABLE). 

             (VERNON'S TEX. STAT., 1948 (CODE CRIM. PROC., ART.
72A) REQUIRES THE

             EXCLUSION OF ILLEGALLY OBTAINED EVIDENCE.) 

UTAH

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  STATE V. AIME, 62 UTAH 476, 220 P. 704 (ADMISSIBLE). 

POST-WOLF:  NO HOLDING. 

VERMONT

PRE-WEEKS:  STATE V. MATHERS, 64 VT. 101, 23 A. 590 (ADMISSIBLE). 

PRE-WOLF:  STATE V. STACY, 104 VT. 379, 160 A. 257 (ADMISSIBLE). 

POST-WOLF:  IN RE RAYMO, 121 VT. 246, 154 A.2D 487 (ADMISSIBLE). 

VIRGINIA

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  HALL V. COMMONWEALTH, 138 VA. 727, 121 S.E. 154
(ADMISSIBLE). 

POST-WOLF:  NO HOLDING. 

WASHINGTON

PRE-WEEKS:  STATE V. ROYCE, 38 WASH. 111, 80 P. 268 (ADMISSIBLE). 

PRE-WOLF:  STATE V. GIBBONS, 118 WASH. 171, 203 P. 390
(EXCLUDABLE). 

POST-WOLF:  STATE V. CYR, 40 WASH. 2D 840, 246 P.2D 480
(EXCLUDABLE). 

WEST VIRGINIA

PRE-WEEKS:  STATE V. EDWARDS, 51 W.VA. 220, 41 S.E. 429
(ADMISSIBLE). 

PRE-WOLF:  STATE V. WILLS, 91 W.VA. 659, 114 S.E. 261
(EXCLUDABLE). 

POST-WOLF:  STATE V. CALANDROS, 140 W.VA. 720, 86 S.E.2D 242
(EXCLUDABLE). 

WISCONSIN

PRE-WEEKS:  NO HOLDING. 

PRE-WOLF:  HOYER V. STATE, 180 WIS. 407, 193 N.W. 89 (EXCLUDABLE). 

POST-WOLF:  STATE V. KROENING, 274 WIS. 266, 79 N.W.2D 810
(EXCLUDABLE). 

WYOMING

PRE-WEEKS: NO HOLDING. 

PRE-WOLF:  STATE V. GEORGE, 32 WYO. 223, 231 P. 683 (EXCLUDABLE). 

POST-WOLF:  NO HOLDING. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING.* 

*(THIS OPINION APPLIES ALSO TO NO. 52, RIOS V. UNITED STATES, POST,
P. 253.) 

THE COURT TODAY OVERTURNS A RULE OF EVIDENCE ALWAYS THE LAW AND
FORMALLY ANNOUNCED IN 1914 BY UNANIMOUS COURT INCLUDING MR. JUSTICE
HOLMES AND MR. JUSTICE HUGHES.  WEEKS V. UNITED STATES, 232 U.S. 383,
398.  THE RULE HAS SINCE THAT TIME BEEN APPLIED IN THIS COURT'S
UNANIMOUS PER CURIAM DECISION IN 1925 IN CENTER V. UNITED STATES, 267
U.S. 575, AND FOR NEARLY HALF A CENTURY, AS A MATTER OF COURSE, IN
FEDERAL PROSECUTIONS WITHOUT NUMBER THROUGHOUT THE UNITED STATES.  IN
1927, A UNANIMOUS COURT, ON WHICH SAT MR. JUSTICE HOLMES, MR. JUSTICE
BRANDEIS AND MR. JUSTICE STONE, THUS ACKNOWLEDGED THE RULE:  "WE DO NOT
QUESTION THE RIGHT OF THE FEDERAL GOVERNMENT TO AVAIL ITSELF OF
EVIDENCE IMPROPERLY SEIZED BY STATE OFFICERS OPERATING ENTIRELY UPON
THEIR OWN ACCOUNT."  BYARS V. UNITED STATES, 273 U.S. 28, 33.  IT CAN
HARDLY BE DENIED THAT MR. JUSTICE HOLMES AND MR. JUSTICE BRANDEIS WERE
THE ORIGINATORS AND FORMULATORS OF THE BODY OF OUR PRESENT
CONSTITUTIONAL LAW PERTAINING TO CIVIL LIBERTIES; PRONOUNCEMENTS SINCE
HAVE MERELY BEEN ECHOES AND APPLICATIONS, WHEN NOT DISTORTIONS, OF
PRINCIPLES LAID DOWN BY THEM. 

OF COURSE OUR LAW, AND PARTICULARLY OUR PROCEDURAL LAW, DOES NOT
STICK FAST IN THE PAST.  (SPEAKING WHOLLY FOR MYSELF, THERE IS INDEED
AN APPROPRIATE BASIS DERIVED FROM THE NATURE OF OUR FEDERALISM - WHICH
I SHALL LATER SET FORTH - FOR MODIFICATION IN THE CIRCUMSTANCES OF THE
PRESENT CASES OF THE RULE ADMITTING STATE-SEIZED EVIDENCE, REGARDLESS
OF THE WAY IN WHICH IT WAS SEIZED.)  BUT WHEN A RULE OF LAW HAS THE
HISTORY AND THE INTRINSIC AUTHORITY OF THE RULE OVERTURNED TODAY, WHEN
IT HAS BEEN FOR SO LONG A PART OF THE ADMINISTRATION OF JUSTICE IN THE
FEDERAL COURTS, A CHANGE, WHEN NOT CONSTITUTIONALLY COMPELLED AS THE
PRESENT CHANGE CONCEDEDLY IS NOT, MUST JUSTIFY ITSELF EITHER BY THE
DEMANDS OF NEW EXPERIENCE UNDERMINING THE JUSTIFICATION OF THE
ESTABLISHED RULE OR BY NEW INSIGHT INTO THE UNDESIRABLE CONSEQUENCES OF
THE OLD RULE.  THE RULE THE COURT NEWLY PROMULGATES TODAY DRAWS UPON
NEITHER OF THESE JUSTIFICATIONS AND IS NOT SUPPORTED BY ANY OF THIS
COURT'S PREVIOUS DECISIONS, WHILE RAISING SERIOUS DIFFICULTIES IN ITS
APPLICATION, INCLUDING UNDUE CONFLICT WITH STATE LAW AND WITH STATE
COURTS. 

WE ARE CONCERNED WITH A RULE GOVERNING THE ADMISSIBILITY OF RELEVANT
EVIDENCE IN FEDERAL COURTS.  THE PERTINENT GENERAL PRINCIPLE,
RESPONDING TO THE DEEPEST NEEDS OF SOCIETY, IS THAT SOCIETY IS ENTITLED
TO EVERY MAN'S EVIDENCE.  AS THE UNDERLYING AIM OF JUDICIAL INQUIRY AS
ASCERTAINABLE TRUTH, EVERYTHING RATIONALLY RELATED TO ASCERTAINING THE
TRUTH IS PRESUMPTIVELY ADMISSIBLE.  LIMITATIONS ARE PROPERLY PLACED
UPON THE OPERATION OF THIS GENERAL PRINCIPLE ONLY TO THE VERY LIMITED
EXTENT THAT PERMITTING A REFUSAL TO TESTIFY OR EXCLUDING RELEVANT
EVIDENCE HAS A PUBLIC GOOD TRANSCENDING THE NORMALLY PREDOMINANT
PRINCIPLE OF UTILIZING ALL RATIONAL MEANS FOR ASCERTAINING TRUTH.  THE
BASIC CONSIDERATION IN THESE CASES IS WHETHER THERE ARE PRESENT ANY
OVERRIDING REASONS FOR NOT ACCEPTING EVIDENCE CONCEDEDLY RELEVANT TO A
FEDERAL JUDICIAL INQUIRY REGARDING A VIOLATION OF FEDERAL LAW. 

OVERRIDING PUBLIC CONSIDERATIONS ARE REFLECTED IN THE EXCLUSION FROM
EVIDENCE OF THE NARROW CLASSES OF PRIVILEGED COMMUNICATIONS, IN THE
EXCLUSION DESIGNED TO PREVENT PEOPLE FROM BEING COMPELLED TO CONVICT
THEMSELVES OUT OF THEIR OWN MOUTHS DEVELOPED UNDER THE SHELTER OF THE
FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION, AND INSOFAR AS
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PUTS CURBS ON THE
EVIDENTIARY LAW OF THE STATES.  RESPECT IS ALSO DUE A FURTHER
CONSIDERATION THAT COURTS OF LAW ARE, AFTER ALL, IN THE SERVICE OF
JUSTICE AND THAT THE ENFORCEMENT OF BASIC MORALITIES BY COURTS SHOULD
AT TIMES BE DEEMED MORE IMPORTANT THAN THE FULL UTILIZATION OF ALL
RELEVANT EVIDENCE IN A PARTICULAR CASE.  SEE SILVERTHORNE LUMBER CO. V.
UNITED STATES, 251 U.S. 385.  REGARD FOR THIS CONSIDERATION LED MR.
JUSTICE HOLMES AND MR. JUSTICE BRANDEIS TO URGE THAT THE FEDERAL COURTS
SHOULD NOT PERMIT THE DEPARTMENT OF JUSTICE TO BECOME THE WILLING
BENEFICIARY OF STOLEN GOODS THROUGH THEIR USE IN EVIDENCE IN A FEDERAL
PROSECUTION:  "RESPECT FOR LAW WILL NOT BE ADVANCED BY RESORT, IN ITS
ENFORCEMENT, TO MEANS WHICH SHOCK THE COMMON MAN'S SENSE OF DECENCY AND
FAIR PLAY."  IT IS NOTEWORTHY THAT WHILE THIS VIEW WAS EXPRESSED BY
HOLMES AND BRANDEIS, J.J. IN 1921 IN DISSENT IN BURDEAU V. MCDOWELL,
256 U.S. 465, 477, IT DID NOT LEAD THEM IN 1927, IN BYARS V. UNITED
STATES, SUPRA, TO QUESTION THE RIGHT OF THE FEDERAL GOVERNMENT TO
UTILIZE THE VERY KIND OF EVIDENCE INVOLVED IN THESE TWO CASES. 

CLOSER TO OUR IMMEDIATE PROBLEM ARE THE EVIDENTIARY PROBLEMS ARISING
OUT OF THE INTERDICTION OF THE FOURTH AMENDMENT AGAINST "UNRASONABLE
SEARCHES AND SEIZURES."  THIS CONSTITUTIONAL PROVISION ADDRESSES ITSELF
TO MATTERS THAT VITALLY RELATE TO INDIVIDUAL FREEDOM.  ON THIS ACCOUNT
ANOTHER EXCLUSION OF RELEVANT EVIDENCE HAS BEEN DEVELOPED IN THE
FEDERAL COURTS IN RESPONSE TO WHAT WAS DEEMED TO BE A COMPELLING PUBLIC
NEED IMPLICIT IN THAT AMENDMENT.  BECAUSE OF WHAT WAS DEEMED TO BE A
VITAL RELATION TO THE VINDICATION OF THE AMENDMENT SO THAT ITS
IMPORTANT PROTECTION WOULD OTHERWISE BE OF "NO VALUE," THIS COURT IN
WEEKS V. UNITED STATES, 232 U.S. 383, HELD IT APPROPRIATE TO EXCLUDE
FROM FEDERAL COURTS EVIDENCE SEIZED BY FEDERAL OFFICIALS IN DISREGARD
OF THE FOURTH AMENDMENT.  IT WAS THOUGHT MORE IMPORTANT TO EXERT
GENERAL LEGAL PRESSURES TO SECURE OBEDIENCE TO THE FOURTH AMENDMENT ON
THE PART OF FEDERAL LAW-ENFORCING OFFICERS THAN TO ENFORCE THE GENERAL
PRINCIPLE OF RELEVANCE IN PARTICULAR CASES.  THIS EXCLUSIONARY RULE OF
WEEKS HAS ALSO BEEN APPLIED TO VIOLATIONS OF FEDERAL LAW BY FEDERAL
OFFICERS, CLOSELY RELATING TO THE INTERESTS PROTECTED BY THE FOURTH
AMENDMENT, ALTHOUGH NOT OF THE FULL SERIOUSNESS OF CONSTITUTIONAL
VIOLATIONS.  SEE, E.G., MILLER V. UNITED STATES, 357 U.S. 301. 

THE FOURTH AMENDMENT, AS APPLIED IN WEEKS AND CASES SINCE, OPERATES,
AS DO ALL THE PROVISIONS OF THE FEDERAL BILL OF RIGHTS, WITHIN THE
LIMITATIONS IMPOSED BY OUR FEDERAL SYSTEM.  IT HAS BEEN HELD WITHOUT
DEVIATION THAT THE SPECIFIC PROVISIONS OF THE FIRST EIGHT AMENDMENTS
ARE NOT LIMITATIONS UPON THE POWER OF THE STATES OR AVAILABLE
SAFEGUARDS OF THE INDIVIDUAL AGAINST STATE AUTHORITY.  OF COURSE THE
SAME IS TRUE OF PROCEDURAL PROTECTIONS AFFORDED BY FEDERAL STATUTES NOT
RESTING ON THE CONSTITUTION.  IT HAS FOLLOWED FROM THIS THAT, UNTIL
TODAY, IN APPLYING THE WEEKS RULE OF EXCLUSION A VITAL QUESTION HAS
ALWAYS BEEN WHETHER THE OFFENDING SEARCH OR SEIZURE WAS CONDUCTED IN
ANY PART BY FEDERAL OFFICIALS OR IN THE INTEREST OF THE FEDERAL
GOVERNMENT, OR WHETHER IT WAS CONDUCTED SOLELY BY STATE OFFICERS ACTING
EXCLUSIVELY FOR STATE PURPOSES.  ONLY IF THE FEDERAL GOVERNMENT "HAD A
HAND" IN THE SEARCH COULD THE FOURTH AMENDMENT OR FEDERAL STATUTORY
RESTRICTIONS, AND THUS THE WEEKS EXCLUSIONARY RULE, APPLY.  SEE BYARS
V. UNITED STATES, 273 U.S. 28; LUSTIG V. UNITED STATES, 338 U.S. 74,
78.  THE WEEKS CASE ITSELF, AS HAS BEEN SAID, HELD THAT STATE
MISCONDUCT WAS NOT TO BE THE BASIS FOR APPLICATION OF THE FEDERAL
EXCLUSIONARY RULE.  232 U.S., AT 398.  UNTIL TODAY THAT HAS BEEN THE
LAW OF THE LAND. 

HAVE THERE BEEN DEVELOPMENTS SINCE WEEKS, EITHER INTELLECTUAL OR
PRACTICAL, WHICH SHOULD LEAD THE COURT TO OVERTURN THE AUTHORITATIVE
RULE OF THAT CASE AND FOR THE FIRST TIME BAR RELEVANT EVIDENCE
INNOCENTLY SECURED BY FEDERAL AUTHORITIES, IN CASES INVOLVING NO
FEDERAL MISCONDUCT WHATEVER, WHERE THERE HAS BEEN NEITHER VIOLATION OF
THE FOURTH AMENDMENT NOR VIOLATION OF A FEDERAL STATUTE BY FEDERAL
OFFICERS OR ANY AGENT FOR THEM. 

THE COURT FINDS SUCH A SIGNIFICANT DEVELOPMENT, DESTROYING IN ITS
VIEW THE "FOUNDATIONS," THE "DOCTRINAL UNDERPINNING" OF THE EXPRESS AND
AUTHORITATIVE LIMITATION OF THE WEEKS EXCLUSIONARY RULE TO CASES OF
FEDERAL VIOLATIONS, IN WHAT WAS SAID IN 1949 IN WOLF V. COLORADO, 338
U.S. 25, 27-28, RECOGNIZING THAT "THE SECURITY OF ONE'S PRIVACY AGAINST
ARBITRARY INTRUSION BY THE POLICE - WHICH IS AT THE CORE OF THE FOURTH
AMENDMENT - IS BASIC TO A FREE SOCIETY.  IT IS THEREFORE IMPLICIT IN
'THE CONCEPT OF ORDERED LIBERTY' AND AS SUCH ENFORCEABLE AGAINST THE
STATES THROUGH THE DUE PROCESS CLAUSE."  THE COURT ASSERTS THAT THERE
IS NOT LONGER ANY LOGIC IN RESTRICTING THE APPLICATION OF THE WEEKS
EXCLUSIONARY RULE TO THE FRUITS OF FEDERAL SEIZURES, FOR WOLF
RECOGNIZED THAT STATE SEIZURES MAY ALSO ENCROACH ON INTERESTS PROTECTED
BY THE FEDERAL CONSTITUTION.  THE RULE WHICH THE COURT ANNOUNCES ON THE
BASIS OF THIS ANALYSIS IS THAT THERE IS TO BE EXCLUDED FROM FEDERAL
PROSECUTIONS ALL EVIDENCE SEIZED BY STATE OFFICERS "DURING A SEARCH
WHICH, IF CONDUCTED BY FEDERAL OFFICERS, WOULD HAVE VIOLATED THE
DEFENDANTS' IMMUNITY FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE
FOURTH AMENDMENT."  AS THE COURT'S RULE ONLY PURPORTS TO EXCLUDE
EVIDENCE SEIZED BY STATE OFFICERS IN VIOLATION OF THE CONSTITUTION, IT
IS PLAIN THAT THE COURT ASSUMES FOR THE PURPOSES OF THESE CASES THAT,
AS A CONSEQUENCE OF WOLF, PRECISELY THE SAME RULES ARE APPLICABLE IN
DETERMING WHETHER THE CONDUCT OF STATE OFFICIALS VIOLATES THE
CONSTITUTION AS ARE APPLICABLE IN DETERMINING WHETHER THE CONDUCT OF
FEDERAL OFFICIALS DOES SO, AND PRECISELY THE SAME EXCLUSIONARY REMEDY
IS DEEMED APPROPRIATE FOR ONE BEHAVIOR AS FOR THE OTHER. 

IN THIS USE OF WOLF THE COURT DISREGARDS NOT ONLY WHAT PRECISELY WAS
SAID THERE, NAMELY, THAT ONLY WHAT WAS CHARACTERIZED AS THE "CORE OF
THE FOURTH AMENDMENT," NOT THE AMENDMENT ITSELF, IS ENFORCEABLE AGAINST
THE STATES, BUT ALSO THE FACT THAT WHAT WAS SAID IN WOLF WAS SAID WITH
REFERENCE TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND
NOT WITH REFERENCE TO THE SPECIFIC GUARANTEES OF THE FOURTH AMENDMENT. 
THE SCOPE AND EFFECT OF THESE TWO CONSTITUTIONAL PROVISIONS CANNOT BE
EQUATED, AS THE COURT WOULD HAVE IT.  THESE ARE CONSTITUTIONAL
PROVISIONS WHOLLY DIFFERENT IN HISTORY, SCOPE AND INCIDENCE, AND THAT
IS CRUCIAL TO OUR PROBLEM.  IT IS OF COURSE TRUE, AS EXPRESSED IN WOLF,
THAT SOME OF THE PRINCIPLES UNDERLYING THE SPECIFIC SAFEGUARDS OF THE
FIRST EIGHT AMENDMENTS ARE IMPLIED LIMITATIONS UPON THE STATES DRAWN
OUT OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND TO THAT
EXTENT, BUT NO MORE, AFFORD FEDERAL PROTECTION TO INDIVIDUALS AGAINST
STATE POWER.  BUT IT IS BASIC TO THE STRUCTURE AND FUNCTIONING OF OUR
FEDERAL SYSTEM TO DISTINGUISH BETWEEN THE SPECIFICS OF THE BILL OF
RIGHTS OF THE FIRST EIGHT AMENDMENTS AND THE GENERALITIES OF THE DUE
PROCESS CLAUSE TRANSLATED INTO CONCRETENESS CASE BY CASE EVER SINCE
DAVIDSON V. NEW ORLEANS, 96 U.S. 97, BY A PROCESS OF INCLUSION AND
EXCLUSION, AS ANALYZED WITH GREAT PARTICULARITY BY MR. JUSTICE CARDOZO
IN PALKO V. CONNECTICUT, 302 U.S. 319. 

THIS VITAL DISTINCTION, RUNNING THROUGH HUNDREDS OF CASES, UNDERLIES
THE DECISION IN WOLF V. COLORADO.  IT IS THEREFORE A COMPLETE
MISCONCEPTION OF THE WOLF CASE TO ASSUME, AS THE COURT DOES AS THE
BASIS FOR ITS INNOVATING RULE, THAT EVERY FINDING BY THIS COURT OF A
TECHNICAL LACK OF A SEARCH WARRANT, THEREBY MAKING A SEARCH
UNREASONABLE UNDER THE FOURTH AMENDMENT, CONSTITUTES AN "ARBITRARY
INTRUSION" OF PRIVACY SO AS TO MAKE THE SAME CONDUCT ON THE PART OF
STATE OFFICIALS A VIOLATION OF THE FOURTEENTH AMENDMENT.  THE DIVISIONS
IN THIS COURT OVER THE YEARS REGARDING WHAT IS AND WHAT IS NOT TO BE
DEEMED AN UNREASONABLE SEARCH WITHIN THE MEANING OF THE FOURTH
AMENDMENT AND THE SHIFTING VIEWS OF MEMBERS OF THE COURT IN THIS
REGARD, PROVE THAT IN EVOLVING THE MEANING OF THE FOURTH AMENDMENT THE
DECISIONS OF THIS COURT HAVE FREQUENTLY TURNED ON DIALECTICAL NICETIES
AND HAVE NOT REFLECTED THOSE FUNDAMENTAL CONSIDERATIONS OF CIVILIZED
CONDUCT ON WHICH APPLICATIONS OF THE DUE PROCESS CLAUSE TURN.  SEE, FOR
EXAMPLE, THE VARYING VIEWS OF THE COURT AS A WHOLE, AND OF INDIVIDUAL
MEMBERS, REGARDING THE "REASONABLENESS" UNDER THE FOURTH AMENDMENT OF
SEARCHES WITHOUT WARRANTS INCIDENT TO ARRESTS, AS ILLUSTRATED BY
COMPARING MARRON V. UNITED STATES, 275 U.S. 192, WITH GO-BART CO. V.
UNITED STATES, 282 U.S. 344, AND UNITED STATES V. LEFKOWITZ, 285 U.S.
452; GO-BART, SUPRA, AND LEFKOWITZ, SUPRA, WITH HARRIS V. UNITED
STATES, 331 U.S. 145, AND UNITED STATES V. RABINOWITZ, 339 U.S. 56;
ALSO HARRIS, SUPRA, WITH TRUPIANO V. UNITED STATES, 334 U.S. 699, AND
TRUPIANO WITH RABINOWITZ, SUPRA (OVERRULING TRUPIANO).  SEE ALSO THE
COURT'S DIFFERING CONCEPTIONS REGARDING THE EVIDENCE NECESSARY TO
CONSTITUTE "PROBABLE CAUSE" UPON WHICH TO BASE A WARRANT OR A SEARCH
WITHOUT A WARRANT, AS REVEALED BY COMPARING GRAU V. UNITED STATES, 287
U.S. 124, 128, WITH DRAPER V. UNITED STATES, 358 U.S. 307, 312, N. 4
(REJECTING GRAU), AND JONES V. UNITED STATES, 362 U.S. 257, 270. 

WHAT THE COURT NOW DECIDES IS THAT THESE VARIEGATED JUDGMENTS, THESE
FLUCTUATING AND UNCERTAIN VIEWS OF WHAT CONSTITUTES AN "UNREASONABLE
SEARCH" UNDER THE FOURTH AMENDMENT IN CONDUCT BY FEDERAL OFFICIALS, ARE
TO DETERMINE WHETHER WHAT IS DONE BY STATE POLICE, WHOLLY BEYOND
FEDERAL SUPERVISION, VIOLATES THE DUE PROCESS CLAUSE.  THE OBSERVATION
IN WOLF V. COLORADO, REFLECTING AS IT DID THE FUNDAMENTAL PROTECTION OF
THE DUE PROCESS CLAUSE AGAINST "ARBITRARY" POLICE CONDUCT, AND NOT THE
SPECIFIC, RESTRICTIVE PROTECTION OF THE FOURTH AMENDMENT, HARDLY
SUPPORTS THAT PROPOSITION OR THE NEW RULE WHICH THE COURT RESTS UPON
IT.  THE IDENTITY OF THE PROTECTION OF THE DUE PROCESS CLAUSE AGAINST
ARBITRARY SEARCHES WITH THE SCOPE OF THE PROTECTION OF THE FOURTH
AMENDMENT IS SOMETHING THE COURT ASSUMES FOR THE FIRST TIME TODAY.  IT
ASSUMES THIS WITHOUT EXPLICATION IN REASON OR IN RELIANCE UPON
AUTHORITY, AND ENTIRELY WITHOUT REGARD FOR THE ESSENTIAL DIFFERENCE,
WHICH HAS ALWAYS BEEN RECOGNIZED BY THIS COURT, BETWEEN THE
PARTICULARITIES OF THE FIRST EIGHT AMENDMENTS AND THE FUNDAMENTAL
NATURE OF WHAT CONSTITUTES DUE PROCESS. 

NOR CAN I UNDERSTAND HOW WOLF V. COLORADO FURNISHES THE SLIGHTEST
SUPPORT FOR THE APPLICATION OF THE WEEKS EXCLUSIONARY RULE, DESIGNED AS
THAT WAS TO ENFORCE THE FOURTH AMENDMENT AND INDIRECTLY TO DISCIPLINE
FEDERAL OFFICERS UNDER THIS COURT'S PECULIARLY COMPREHENSIVE
SUPERVISORY POWER OVER THEM, TO THE PRESENT CASES, WHERE THE
INFRACTIONS, IF ANY, WERE BY STATE OFFICERS AND WERE OF RIGHTS ARISING
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE COURT
FINDS WHAT IT CALLS THE "ULTIMATE HOLDING" IN WOLF, NAMELY, THAT THE
EXCLUSIONARY RULE IS NOT TO BE FASTENED UPON STATE COURTS IN
ENFORCEMENT OF RIGHTS ARISING AGAINST ARBITRARY SEARCHES AND SEIZURES,
SOMETHING WITH WHICH "WE ARE NOT HERE DIRECTLY CONCERNED."  I FAIL TO
UNDERSTAND WHY THIS HOLDING IS NOT OF ESSENTIAL RELEVANCE TO THE
HOLDING OF THESE CASES.  IN THE FIRST PLACE WOLF WHOLLY REBUTS THE
COURT'S ASSERTION THAT THERE IS NO LOGIC IN DISTINGUISHING HOW THE
FOURTEENTH AMENDMENT IS TO BE ENFORCED AGAINST STATE OFFICIALS FROM HOW
THE FOURTH IS TO BE ENFORCED AGAINST FEDERAL OFFICERS.  THE POINT OF
WOLF WAS THAT THE LOGIC OF THIS WAS IMPERATIVE AND THAT THE REMEDIES
UNDER THE TWO AMENDMENTS ARE NOT THE SAME.  IN THE SECOND PLACE, IN
LIGHT OF THE HOLDING OF WOLF THAT STATE COURTS MAY ADMIT EVIDENCE LIKE
THAT INVOLVED IN THESE CASES, IT CANNOT BE SAID THAT THERE IS ANY
SUFFICIENT JUSTIFICATION BASED UPON CONTROLLING THE CONDUCT OF STATE
OFFICERS FOR EXCLUDING SUCH EVIDENCE FROM FEDERAL COURTS, AS THE COURTS
WOULD DO, WHEN GATHERED BY STATE OFFICIALS WHOSE STATES WOULD ADMIT IT.
THE UNDERLYING ASSUMPTION ON WHICH THE EXCLUSIONARY RULE OF WEEKS
RESTS IS THAT BARRING EVIDENCE ILLEGALLY SECURED WILL HAVE AN
INHIBITING, ONE HOPES A CIVILIZING, INCLUENCE UPON LAW OFFICERS.  WITH
DUE RESPECT, IT IS FANCIFUL TO ASSUME THAT LAW-ENFORCING AUTHORITIES OF
STATES WHICH DO NOT HAVE AN EXCLUSIONARY RULE WILL TO ANY SIGNIFICANT
DEGREE BE INFLUENCED BY A POTENTIAL EXCLUSION IN FEDERAL PROSECUTIONS
OF EVIDENCE SECURED BY THEM WHEN STATE PROSECUTIONS, WHICH SURELY ARE
THEIR PREOCCUPATION, REMAIN FREE TO USE THE EVIDENCE.  AT ANY RATE,
WHAT WARRANT IS THERE FOR THE FEDERAL COURTS TO ASSUME THE SAME
SUPERVISORY CONTROL OVER STATE OFFICIALS AS THEY HAVE ASSUMED OVER
FEDERAL OFFICERS, EVEN IF THAT CONTROL COULD BE EFFECTIVE?  AND THE
EXERTION OF CONTROLLING PRESSURES UPON THE POLICE IS ADMITTEDLY THE
ONLY JUSTIFICATION FOR ANY EXCLUSIONARY RULE. 

THUS, I DO NOT UDERSTAND HOW WOLF V. COLORADO, WHICH IS THE ONLY CASE
RELIED UPON BY THE COURT AS AUTHORITY FOR ITS INNOVATION, FURNISHES
SUPPORT FOR THE COURT'S NEW RULE OF EVIDENCE.  IT SEEMS TO ME TO DO THE
OPPOSITE.  NOR CAN THE COURT'S NEW RULE BE JUSTIFIED AS AN EFFECTIVE
MEANS FOR CONTROLLING STATE OFFICERS.  NEITHER DO I THINK THE COURT'S
ADOPTION OF AN EXCLUSIONARY RULE IN THE PRESENT CASES FINDS
JUSTIFICATION, AS THE COURT SUGGESTS, IN LIGHT OF ANY UNIVERSAL
RECOGNITION OF THE NEED OF EXCLUDING EVIDENCE SUCH AS IS INVOLVED IN
THESE CASES IN ORDER TO ASSURE THE WISE AND EFFECTIVE ADMINISTRATION OF
CRIMINAL JUSTICE.  IT CANNOT BE DENIED THAT THE APPROPRIATENESS OF
BARRING RELEVANT EVIDENCE AS A MEANS FOR REGULATING POLICE CONDUCT HAS
NOT BEEN UNQUESTIONED EVEN BY THOSE MOST ZEALOUS FOR HONEST LAW
ENFORCEMENT, AND IT CERTAINLY HAS NOT GONE UNQUESTIONED AS OUTWEIGHING
THE INTEREST OF SOCIETY IN BRINGING CRIMINALS TO JUSTICE.  SEE, E.G.,
PEOPLE V. DEFORE, 242 N.Y. 13, 21, 150 N.E. 585, 587-588; 8 WIGMORE,
EVIDENCE (3D ED.  1940), SEC. 2184.  AND I REGRET TO SAY THAT I DO NOT
FIND EVIDENCE THAT THE MOVEMENT TOWARDS ADOPTION OF THE RULE OF
EXCLUSION HAS BEEN, AS WE ARE TOLD, "SEEMINGLY INEXORABLE."  ON THE
CONTRARY, WHAT IMPRESSES ME IS THE OBDURACY OF HIGH-MINDED STATE
COURTS, LIKE THAT OF NEW YORK UNDER THE LEADERSHIP OF JUDGE CARDOZO, IN
REFUSING TO ADOPT THE FEDERAL RULE OF EXCLUSION.  INDEED, THIS
IMPRESSIVE INSISTENCE OF STATES NOT TO FOLLOW THE WEEKS EXCLUSIONARY
RULE WAS THE CONTROLLING CONSIDERATION OF THE DECISION IN WOLF NOT TO
READ IT INTO THE REQUIREMENT OF "DUE PROCESS" UNDER THE FOURTEENTH
AMENDMENT.  AS THE MATERIAL THE COURT HAS COLLECTED SHOWS, FULLY HALF
THE STATES HAVE REFUSED TO ADHERE TO OUR WEEKS RULE, NEARLY FIFTY YEARS
AFTER THIS COURT HAS DEEMED IT APPROPRIATE FOR THE FEDERAL
ADMINISTRATION OF CRIMINAL JUSTICE. 

APART FROM ANY AFFIRMATIVE JUSTIFICATIONS FOR THE NEW RULE, IT IS
SUGGESTED IN SUPPORT OF THE NEED FOR MAKING THE COURT'S INNOVATION THAT
THE DISTINCTION MADE SINCE WEEKS V. UNITED STATES FOR PURPOSES OF
EXCLUDING EVIDENCE, TURNING ON WHETHER OR NOT FEDERAL OFFICIALS HAD ANY
SHARE IN THE SEARCH, HAS ENGENDERED PRACTICAL DIFFICULTIES AND FOR THAT
REASON OUGHT NOW TO BE DISCARDED.  IT IS ALSO SUGGESTED THAT THE RULE
WHICH HAS PREVAILED UNDER WEEKS AND BYARS TO THIS DAY "IMPLICITLY
INVITES FEDERAL OFFICERS TO WITHDRAW FROM SUCH ASSOCIATION (WITH STATE
LAW-ENFORCEMENT OFFICERS) AND AT LEAST TACITLY TO ENCOURAGE STATE
OFFICERS IN THE DISREGARD OF CONSTITUIONALLY PROTECTED FREEDOM."   I AM
NOT AWARE OF EVIDENCE TO SUSTAIN THE VIEW THAT THE DISTINCTION BETWEEN
FEDERAL AND STATE SEARCHES HAS BEEN PARTICULARLY DIFFICULT OF
APPLICATION.  INDIVIDUAL CASES HAVE MERELY PRESENTED THE EVERYDAY ISSUE
OF EVALUATING TESTIMONY AND TESTIMONY TOUCHING AN ISSUE RELATIVELY EASY
OF ASCERTAINMENT.  I KNOW OF NO OPINION IN ANY FEDERAL COURT, AND THE
COURT POINTS TO NONE, WHICH HAS REVEALED ANY CONSCIOUSNESS OF HAVING
BEEN CONFRONTED WITH TOO EXACTING A TASK FOR ADJUDICATION WHEN CALLED
UPON TO DECIDE WHETHER A SEARCH WAS OR WAS NOT TO BE DEEMED A FEDERAL
SEARCH.  THIS COURT'S DECISIONS CERTAINLY DO NOT REFLECT AN AWARENESS
OF SUCH DIFFICULTIES.  AND IF THE RULE, AS APPEARS FROM THE DECISIONS
OF THE JUDGES WHO HAVE HAD TO APPLY IT, HAS EVIDENTLY BEEN IN GENERAL A
WORKABLE ONE, IT SURELY SHOULD NOT BE DISCARDED BECAUSE OF UNSUPPORTED
ASSUMPTIONS THAT FEDERAL OFFICIALS ARE PRONE TO EVADE IT AND TO
COOPERATE SECRETLY WITH STATE POLICE IN IMPROPER ACTIVITIES.  DISREGARD
OF THE HISTORY, AUTHORITY AND EXPERIENCE THAT SUPPORT THE RULE NOW CAST
INTO LIMBO OUGHT TO HAVE A MORE SUBSTANTIATED JUSTIFICATION THAN THE
FRAGILE ASSUMPTION THAT FEDERAL OFFICERS LOOK FOR OPPORTUNITIES TO
ENGAGE IN, TO USE THE COURT'S LANGUAGE, "SUBTERFUGE" AND "EVASION" OF A
COMMAND SANCTIONED BY THIS COURT.  I WOULD NOT SO BELITTLE THIS COURT'S
AUTHORITY.  I HAD SUPPOSED WE SHOULD ATTRIBUTE TO THE LAW-ENFORCING
AUTHORITIES OF THE GOVERNMENT RESPECT FOR THIS COURT'S WEIGHTY COURSE
OF DECISION AND NOT A FLOUTING OF THEM.    WHATEVER DIFFICULTIES OF
APPLICATION THERE MAY BE IN THE PRESENT RULE - AND THE OPINIONS OF
THOSE WHO HAVE HAD TO APPLY IT DO NOT INDICATE THAT THEY ARE
SIGNIFICANT - THEY SURELY CANNOT LEAD US TO EXCHANGE A TRIED AND
SETTLED PRINCIPLE FOR THE COURT'S NEW DOCTRINE.  FOR THAT DOCTRINE,
ALTHOUGH THE COURT PURPORTS TO BE GUIDED BY THE PRACTICAL CONSEQUENCES
OF RULES OF EVIDENCE IN THIS AREA AND BY CONSIDERATIONS OF COMITY
BETWEEN FEDERAL AND STATE COURTS AND POLICIES, NOT ONLY RAISES NEW AND
FAR GREATER DIFFICULTIES THAN DID THE OLD RULE, BUT IS ALSO PREGNANT
WITH NEW DISHARMONIES BETWEEN FEDERAL AND STATE AUTHORITIES AND BETWEEN
FEDERAL AND STATE COURTS.    FIRST.  THE COURT'S NEW RULE INTRODUCES
INTO THE LAW GOVERNING THE ADMISSIBILITY OF SEARCH-AND-SEIZURE EVIDENCE
IN FEDERAL PROSECUTIONS A TROUBLESOME AND UNCERTAIN NEW CRITERION,
NAMELY, THE "UNCONSTITUIONALITY" OF POLICE CONDUCT, AS DISTINGUISHED
FROM ITS MERE ILLEGALITY UNDER STATE OF FEDERAL LAW.  UNDER THE RULE
THE COURT TODAY ANNOUNCES, THE FEDERAL TRIAL COURT, WHENEVER STATE
SEIZED EVIDENCE IS CHALLENGED, MUST DECIDE THE WHOLLY HYPOTHETICAL
QUESTION WHETHER THAT EVIDENCE WAS "OBTAINED BY STATE OFFICERS DURING A
SEARCH WHICH, IF CONDUCTED BY FEDERAL OFFICERS, WHOULD HAVE VIOLATED
THE DEFENDANT'S IMMUNITY FROM UNREASONABLE SEARCHES AND SEIZURES UNDER
THE FOURTH AMENDMENT."  IRRELEVANT ARE VIOLATIONS OF STATE LAW, OR
HYPOTHETICAL VIOLATIONS OF FEDERAL STATUTES, HAD THE SEARCH BEEN
"CONDUCTED BY FEDERAL OFFICERS." 

THE WEEKS RULE OF EXCLUSION, AS ENFORCED BY THIS COURT, APPLIES TO
ALL ILLEGAL SEIZURES ON THE PART OF FEDERAL OFFICERS.  IF THE OFFICER'S
CONDUCT IS BY STATUTE OR COURT-DEVELOPED RULE ILLEGAL, THE EVIDENCE IS
EXCLUDED, AND IT IS NOT NECESSARY TO SAY WHETHER OR NOT THE RULE OF
CONDUCT FLOWS DIRECTLY FROM THE CONSTITUTION.  THIS HAS BEEN AN
EFFICIENT, WORKABLE EVIDENTIARY CRITERION UNENCUMBERED WITH WEIGHTY
CONSTITUTIONAL DISTINCTIONS.  SEE, FOR ESAMPLE, MILLER V. UNITED
STATES, 357 U.S. 301, WHERE EVIDENCE WAS EXCLUDED WITHOUT A MENTION OF
THE CONSTITUTION.  THIS COURT OR THE LOWER FEDERAL COURTS HAVE THUS
NEVER, UNTIL TODAY, NEEDED TO DEVELOP CRITERIA DISTINGUISHING THOSE
FEDERAL REGULATIONS OF THE CONDUCT OF FEDERAL OFFICERS WHICH ARE
COMPELLED BY THE CONSTITUTION FROM THOSE WHICH ARE ENTRUSTED TO THE
DISCRETION OF CONGRESS OR THE COURTS TO DEVELOP.  WE MUST DO SO NOW,
AND SO MUST FEDERAL TRIAL COURTS CONCERN THEMSELVES WITH SUCH
CONSTITUTIONAL DETERMINATIONS IN THE MIDST OF ADJUDICATING MOTIONS TO
SUPPRESS STATE EVIDENCE.  THIS IS BOUND TO BE A TROUBLESOME PROCESS IN
LIGHT OF THE COMPLETE ABSENCE OF SUCH CRITERIA.  FOR EXAMPLE, ARE THE
SPECIAL FEDERAL PROVISIONS REGARDING NIGHT SEARCH WARRANTS OF A
CONSTITUTIONAL NATURE?  AND WHAT OF THE RULES GOVERNING THE EXECUTION
OF LAWFUL WARRANTS, APPLIED IN MILLER V. UNITED STATES, SUPRA?  WE HAVE
NEVER NEEDED TO PRONOUNCE UPON THESE TOTALLY ABSTRACT AND DOCTRINAIRE
QUESTIONS, AND THERE SURELY IS NO NEED TO ANNOUNCE A RULE WHICH FORCES
US TO DO SO NOW, WHEN SUCH A RULE IS NOT CONSTITUTIONALLY REQUIRED, BUT
IS CONCEDEDLY IMPOSED AS A MATTER OF THIS COURT'S DISCRETIONARY POWER
TO FORMULATE RULES OF EVIDENCE FOR FEDERAL LITIGATION.  AFTER ALL, IT
MAKES NOT THE SLIGHTEST DIFFERENCE FROM THE POINT OF VIEW OF THE
ADMISSIBILITY OF EVIDENCE WHETHER WHAT A FEDERAL OFFICER DOES IS SIMPLY
ILLEGAL OR ILLEGAL BECAUSE UNCONSTITUTIONAL.  WHY INTRODUCE SUCH
SUBTLETIES, IN A HYPOTHETICAL FEDERAL CONTEXT, WHEN PASSING ON STATE
EVIDENCE? 

SECOND.  THE COURT'S NEW RULE POTENTIALLY FRUSTRATES AND CREATES
UNDESIRABLE CONFLICT WITH VALID AND PRAISEWORTHY STATE POLICIES WHICH
ATTEMPT TO PROTECT INDIVIDUALS FROM UNLAWFUL POLICE CONDUCT.  ALTHOUGH
THE COURT PURPORTS TO BE RESPONSIVE TO THE NEEDS OF PROPER LAW
ENFORCEMENT AND TO CONSIDERATIONS OF COMITY BETWEEN STATE AND FEDERAL
LAW, WHEN IT COMES TO ELABORATE ITS NEW RULE IT DOES SO AS FOLLOWS:
"THE TEST IS ONE OF FEDERAL CONSTITUTIONAL LAW, NEITHER ENLARGED BY
WHAT ONE STATE COURT MAY HAVE COUNTENANCED, NOR DIMINISHED BY WHAT
ANOTHER MAY HAVE COLORABLY SUPPRESSED."  SO COMITY PLAYS NO PART AT
ALL, AND THE FRUITS OF ILLEGAL LAW ENFORCEMENT MAY WELL BE ADMITTED IN
FEDERAL COURTS DIRECTLY CONTRARY TO STATE LAW.  STATE LAW SEEKING TO
CONTROL IMPROPER METHODS OF LAW ENFORCEMENT IS FRUSTRATED BY THE
COURT'S NEW RULE WHENEVER A STATE WHICH ENFORCES AN EXCLUSIONARY RULE
PLACES RESTRICTIONS UPON THE CONDUCT OF ITS OFFICERS NOT DIRECTLY
REQUIRED BY THE FOURTH AMENDMENT WITH REGARD TO FEDERAL OFFICERS.  THE
COURT'S NEW RULE WILL, FOR EXAMPLE, ADMIT EVIDENCE ILLEGALLY SEIZED
UNDER A STATE LAW WHICH IS IDENTICAL TO A FEDERAL STATUTE RESTRICTING
FEDERAL OFFICERS, SO LONG AS THE FEDERAL STATUTE GOES BEYOND THE
MINIMUM REQUIREMENTS OF THE CONSTITUTION.  ONE WOULD SUPPOSE THAT SUCH
A SITUATION WOULD BE ONE IN WHICH THIS COURT WOULD PLAINLY RESPECT THE
STATE POLICY AS CONSTITUTING NOTHING BUT A LOCAL DUPLICATION OF A
FEDERAL POLICY.  YET THE RULE PROMULGATED TODAY FLOUTS SUCH A STATE
REGULATION.  A STATE OFFICER WHO DISOBEYS IT NEEDS ONLY TO TURN HIS
EVIDENCE OVER TO THE FEDERAL PROSECUTOR, WHO MAY FREELY UTILIZE IT
UNDER TODAY'S INNOVATION IN DISREGARD TO THE DISCIPLINARY POLICY OF THE
STATE'S EXCLUSIONARY RULE.  I CANNOT THINK WHY THE FEDERAL COURTS
SHOULD THUS ENCOURAGE STATE ILLEGALITIES. 

I DO NOT MERELY INDULGE IN ASSUMPTIONS REGARDING THE SERIOUS
FRUSTRATIONS OF VALID STATE REGULATIONS OF STATE LAW-ENFORCEMENT
OFFICERS WHICH MAY ARISE FROM THE RULE FORMULATED TODAY.  TAKE A
CONCRETE EXAMPLE OF THIS MISCHIEF.  IN BREITHAUPT V. ABRAM, 352 U.S.
432, THIS COURT DECIDED THAT IT DID NOT VIOLATE THE FOURTEENTH
AMENDMENT FOR A STATE TO TAKE BLOOD FROM A DEFENDANT WITHOUT HIS
CONSENT AND USE IT IN EVIDENCE AGAINST HIM, FOR SUCH POLICE METHODS
WERE FOUND NOT TO BE "OFFENSIVE" OR "UNREASONABLE."  NEVERTHELESS,
STATES MAY DECIDE, AND HAVE DECIDED, THAT TAKING BLOOD WITHOUT CONSENT
IS BY STATE STANDARDS REPREHENSIBLE, AND THAT TO DISCOURAGE SUCH
CONDUCT BY ITS POLICE BLOOD-TEST EVIDENCE MUST BE SUPPRESSED IN USE IN
STATE PROSECUTIONS.  SEE LEBEL V. SWINCICKI, 354 MICH. 427, 93 N.W.2D
281; STATE V. KROENING, 274 WIS. 266, 271-276, 79 N.W.2D 810, 814-817. 
SUCH A STATE POLICY IS SURELY ENTITLED TO OUR RESPECT IF WE ARE TO
EXCLUDE EVIDENCE ON THE BASIS OF THE ILLEGAL ACTIVITY OF STATE
OFFICERS.  YET BECAUSE OF THE DECISION IN BREITHAUPT, THE COURT'S NEW
RULE PERMITS THE ADMISSION OF BLOOD-TEST EVIDENCE IN A FEDERAL
PROSECUTION, IGNORING THE STATE'S DECISION THAT THE POLICE CONDUCT
PRODUCING IT IS ILLEGAL AND THAT IT THEREFORE OUGHT TO BE SUPPRESSED. 
AND THE SAME IS TO BE TRUE OF EVIDENCE SEIZED BY STATE POLICE IN
VIOLATION OF A STATE RULE REGARDING SEARCHES INCIDENT TO LAWFUL ARRESTS
WHICH IS MORE RESTRICTIVE UPON THE POLICE THAN THE PRESENT VERSION OF
THE FLUCTUATING FEDERAL RULE, OR OF EVIDENCE SEIZED PURSUANT TO A
WARRANT OR TO AN ARREST WITHOUT A WARRANT WHICH DID NOT MEET STATE
STANDARDS OF "PROBABLE CAUSE" MORE RESTRICTIVE THAN THE FEDERAL
STANDARDS AS LATELY DEVELOPED.  STATE RULES IN THESE AREAS MAY BE AND
IN SOME STATES ARE MORE RESTRICTIVE THAN FEDERAL RULES.  SEE, FOR
EXAMPLE, RESTRICTING THE RIGHT OF INCIDENTAL SEARCH MORE THAN HAS THIS
COURT, STATE V. ADAMS, 103 W.VA. 77, 136 S.E. 703; STATE V. BUCKLEY,
145 WASH. 87, 258 P. 1030; FLANNERY V. COMMONWEALTH, 324 S.W.2D 128
(KY.); DOYLE V. STATE, 320 P.2D 412 (OKLA.); AND IMPOSING MORE EXACTING
STANDARDS OF "PROBABLE CAUSE" THAN FEDERAL LAW IMPOSES, DOYLE V. STATE,
320 P.2D 412 (OKLA.)(EXPRESSLY REFUSING TO FOLLOW BRINEGAR V. UNITED
STATES, 338 U.S. 160); AVERILL V. STATE, 52 SO. 2D 791 (FLA.); PEOPLE
V. THYMIAKAS, 140 CAL. APP. 2D 940, 296 P.2D 4.  ESPECIALLY PERTINENT
IN THIS REGARD IS THE FOLLOWING STATEMENT IN PEOPLE V. CAHAN, 44 CAL.
2D 434, 450-451, 282 P.2D 905, 915, ADOPTING AN EXCLUSIONARY RULE FOR
CALIFORNIA:  "IN DEVELOPING A RULE OF EVIDENCE APPLICABLE IN THE STATE
COURTS, THIS COURT IS NOT BOUND BY THE DECISIONS THAT HAVE APPLIED THE
FEDERAL RULE, AND IF IT APPEARS THAT THOSE DECISIONS HAVE DEVELOPED
NEEDLESS REFINEMENTS AND DISTINCTIONS, THIS COURT NEED NOT FOLLOW
THEM.  SIMILARLY, IF THE FEDERAL CASES INDICATE NEEDLESS LIMITATIONS ON
THE RIGHT TO CONDUCT REASONABLE SEARCHES AND SEIZURES OR TO SECURE
WARRANTS, THIS COURT IS FREE TO REJECT THEM." 

IN FACT, IN THE VERY TWO CASES NOW BEFORE THE COURT STATE COURTS HAVE
FOUND THEIR OFFICERS' CONDUCT ILLEGAL AND HAVE ORDERED SUPPRESSION OF
THE EVIDENCE THEREBY GAINED.  YET THE COURT REFUSES TO RESPECT THESE
FINDINGS AND SENDS THE CASES BACK TO THE DISTRICT COURTS FOR
INDEPENDENT RULINGS REGARDING THE FEDERAL CONSTITUTIONAL VALIDITY OF
THE STATE OFFICERS' CONDUCT.  IF THESE STATE INFRACTIONS ARE NOT FOUND
TO BE OF CONSTITUTIONAL DIMENSIONS, AND IT IS SURELY DOUBTFUL WHETHER
THEY WERE OF THAT DEGREE OF SERIOUSNESS UNDER SOME OF OUR DECISIONS,
THE EVIDENCE WILL BE ADMITTED THOUGH WRONGFULLY SEIZED UNDER THE
GOVERNING STATE LAW.  THE RULE PROMULGATED TODAY WOULD THUS UNDO A
STATE'S DISCIPLINARY POLICY AGAINST POLICE MISCONDUCT, WHILE IN THE
CONTRARY SITUATION, WHERE THE STATE WOULD ADMIT EVIDENCE NOW REJECTED
BY THE COURT, POLICE CONDUCT SUSTAINED BY STATE LAW WOULD NOT BE
AFFECTED. 

THIRD.  THE COURT'S NEW RULE CREATES POTENTIAL CONFLICT BETWEEN
FEDERAL AND STATE COURTS EVEN WHEN THE LEGAL STANDARDS OF POLICE
CONDUCT UPON WHICH CONCLUSION IS TO TURN ARE THE SAME IN BOTH COURTS. 
THE COURT SAYS THAT "IN DETERMINING WHETHER THERE HAS BEEN AN
UNREASONABLE SEARCH AND SEIZURE BY STATE OFFICERS, A FEDERAL COURT MUST
MAKE AN INDEPENDENT INQUIRY, WHETHER OR NOT THERE HAS BEEN SUCH AN
INQUIRY BY A STATE COURT, AND IRRESPECTIVE OF HOW ANY SUCH INQUIRY MAY
HAVE TURNED OUT."  AGAIN CONSIDERATIONS OF COMITY ARE IGNORED. 
APPLYING THE SAME LEGAL STANDARDS, A FEDERAL TRIBUNAL MAY HOLD STATE
OFFICERS BLAMELESS AFTER A STATE COURT HAS CONDEMNED THEIR CONDUCT, OR
IT MAY HOLD THEM TO HAVE BEEN AT FAULT AFTER THE STATE HAS ABSOLVED
THEM.  I CANNOT IMAGINE THE JUSTIFICATION FOR PERMITTING A FEDERAL
COURT TO MAKE SUCH CONFLICTING PRONOUNCEMENTS, DEBILITATING LOCAL
AUTHORITY IN MATTERS OVER WHICH THE LOCAL COURTS SHOULD AND DO HAVE
PRIMARY RESPONSIBILITY. 

IN SUMMARY, THEN, ALTHOUGH THE COURT PROFESSES TO BE RESPONSIVE TO
"THE VERY ESSENCE OF A HEALTHY FEDERALISM" AND "THE AVOIDANCE OF
NEEDLESS CONFLICT BETWEEN STATE AND FEDERAL COURTS," THE RULE IT
ACTUALLY FORMULATES IS WHOLLY UNRESPONSIVE TO VALID STATE POLICIES
WHILE CARRYING A GREAT RISK OF NEEDLESS CONFLICT BETWEEN STATE AND
FEDERAL POLICIES AND BETWEEN STATE AND FEDERAL COURTS.  WITH REGARD TO
EVIDENCE FROM STATES WHICH HAVE NOT ADOPTED EXCLUSIONARY RULES, THE
COURT'S INNOVATION OF TODAY DEPRIVES THE FEDERAL COURTS OF RELEVANT
EVIDENCE THROUGH HAZARDOUS CONSTITUTIONAL DETERMINATIONS WITHOUT ANY
SIGNIFICANT OR LEGITIMATE COMPENSATING EFFECT UPON STATE OR FEDERAL LAW
ENFORCEMENT.  IN STATES WHICH DO APPLY AN EXCLUSIONARY RULE, THE
COURT'S NEW FORMULATION ACCORDS NO RESPECT TO VALID STATE POLICIES AND
IS A SOURCE OF CONFLICT WITH STATE COURTS.  THE COURT PROMULGATES A
RULE WHOSE ONLY PRACTICAL JUSTIFICATION IS THE REGULATION OF STATE
OFFICIALS WITHOUT THE SLIGHTEST REGARD FOR ACHIEVING HARMONY WITH VALID
STATE LAWS WHICH NECESSARILY MUST BE THE PRIMARY CONCERN OF THOSE
OFFICIALS.  AND ALTHOUGH THE COURT RECOGNIZES CONSIDERATIONS OF
"JUDICIAL INTEGRITY" IN ACCEPTING ILLEGALLY SEIZED EVIDENCE, IT REFUSES
TO RESPECT STATE DETERMINATIONS THAT CERTAIN EVIDENCE HAS IN FACT BEEN
ILLEGALLY GATHERED UNDER THE APPLICABLE LAW. 

I WOULD AGREE WHOLLY WITH MY BROTHERS CLARK, HARLAN AND WHITTAKER,
WHO JOIN ME IN THE REASONS FOR DISSENTING FROM THE COURT'S DECISION,
THAT THE JUDGMENTS SHOULD BE AFFIRMED IF, LIKE THEM, I FOUND THE ONLY
CHOICE TO BE ONE BETWEEN THE WEEKS-BYARS DOCTRINE AND TODAY'S
DECISION.  FOR ME, HOWEVER, THE COURSE OF EVENTS SINCE THE PROMULGATION
OF THE WEEKS DOCTRINE SUGGESTS A MODIFICATION OF IT CONSONANT WITH THE
THINKING OF WEEKS AND THEREFORE NOT ESSENTIALLY DEPARTING FROM IT.  I
WOULD MODIFY THE WEEKS-BYARS RULE TO GIVE DUE HEED TO APPROPRIATE
COMITY BETWEEN FEDERAL AND STATE COURT DETERMINATIONS AND DUE RESPECT
FOR THE DISCRETION LEFT TO THE STATES BY WOLF V. COLORADO TO DEVELOP
AND APPLY EXCLUSIONARY RULES UPON THEIR OWN INITIATIVE AND I THEREFORE
WOULD EXCLUDE THE EVIDENCE IN THESE CASES ON THE BASIS OF STATE
DECISIONS TO SUPPRESS IT.  SPECIFICALLY, I WOULD RECOGNIZE THAT ABOUT
HALF THE STATES HAVE NOW ADOPTED EXCLUSIONARY RULES ALTHOUGH ONLY ONE
STATE HAD SUCH A RULE WHEN THE WEEKS CASE WAS DECIDED.  IT RESPECTS
WHAT WAS DECIDED IN WEEKS REGARDING STATE-SEIZED EVIDENCE FOR THE
FEDERAL COURTS NOW TO ADJUST THEIR RULES OF EVIDENCE TO SUPPORT THE
STATES WHICH HAVE ADOPTED THE WEEKS EXCLUSIONARY RULE FOR THEMSELVES,
THEREBY EXERCISING THE SAME CONTROL OVER STATE OFFICIALS AS WEEKS FOUND
IT APPROPRIATE FOR THE FEDERAL COURTS TO EXERCISE OVER FEDERAL
OFFICIALS.  THUS, ALTHOUGH I FIND NO GOOD REASON NOT TO ADMIT IN
FEDERAL COURTS EVIDENCE GATHERED BY STATE OFFICIALS IN STATES WHICH
WOULD ADMIT THE EVIDENCE, I WOULD NOT ADMIT SUCH EVIDENCE IN CASES LIKE
THE PRESENT, WHERE STATE COURTS, ENFORCING THEIR EXCLUSIONARY RULES,
HAVE FOUND THEIR OFFICERS GUILTY OF INFRACTIONS OF THE RULES PROPERLY
REGULATING THEIR CONDUCT AND HAVE SUPPRESSED THE EVIDENCE.  JUST AS MR.
JUSTICE HOLMES AND MR. JUSTICE BRANDEIS IN BURDEAU V. MCDOWELL, 256
U.S. 465, 476-477 (DISSENTING), DEEMED IT NOT SEEMLY FOR A FEDERAL
COURT TO ALLOW THE DEPARTMENT OF JUSTICE TO BE THE KNOWING BENEFICIARY
OF STOLEN GOODS, SO IT SEEMS TO ME UNSEEMLY FOR A FEDERAL COURT NOT TO
RESPECT THE DETERMINATION OF A STATE COURT THAT ITS OWN OFFICIALS WERE
GUILTY OF WRONGDOING AND NOT TO SUPPORT THE STATE'S POLICY TO PREVENT
THOSE OFFICIALS FROM MAKING USE THROUGH FEDERAL PROSECUTION OF THE
FRUITS OF THEIR WRONG-DOING.  DEALING WITH THE GENERALITY OF CASES, AS
RULES OF EVIDENCE SHOULD, TO LET A STATE DETERMINATION REGARDING THE
LEGALITY OF THE CONDUCT OF STATE OFFICIALS DETERMINE THE ADMISSIBILITY
IN A FEDERAL COURT OF EVIDENCE GATHERED BY THEM WOULD NOT ONLY AVOID A
RETRIAL OF IDENTICAL ISSUES IN THE FEDERAL COURT, BUT WOULD ALSO AVOID
THE UNSEEMLINESS AND DISRUPTION OF STATE AUTHORITY INVOLVED IN HAVING A
FEDERAL COURT DECIDE THAT A SEARCH WAS LEGAL, AS IT MIGHT WELL DO WHEN
THE FEDERAL CONSTITUTIONAL STANDARDS ARE NARROWER THAN STATE STANDARDS,
AFTER A STATE COURT HAS ADJUDGED THE SEARCH ILLEGAL.    I AM NOT
UNMINDFUL THAT THIS HAS ITS OWN DIFFICULTIES, AS FOR INSTANCE, THE FACT
THAT STATE MOTIONS TO SUPPRESS ARE NORMALLY DETERMINED ONLY BY A TRIAL
JUDGE AND ARE GENERALLY NOT REVIEWABLE AT ALL IF GRANTED AND FOLLOWED
BY ACQUITTAL.  AND SO A STATE COURT DECISION MAY NOT INEVITABLY REFLECT
THE STATE'S JUDICIAL POLICY AS FORMULATED BY ITS HIGHEST COURT. 
DIFFICULTIES WOULD ALSO BE PRESENT WHEN THERE HAS BEEN NO STATE
DECISION REGARDING THE LEGALITY OF THE SEIZURE, AND WHEN IT IS NOT
CLEAR TO THE FEDERAL COURT WHICH MUST DECIDE UPON ADMISSIBILITY WHAT
THE STATE DECISION WOULD BE.  OCCASIONALLY, A STATE DECISION MIGHT
UNJUSTIFIABLY FRUSTRATE AN IMPORTANT FEDERAL PROSECUTION DEPENDENT UPON
STATE-SEIZED EVIDENCE.  THESE ARE DIFFICULTIES INHERENT IN EVOLVING
HARMONIOUS RELATIONS IN THE INTERCONNECTED INTERESTS BETWEEN THE STATES
AND THE NATION IN OUR FEDERAL SYSTEM.  THE CONSEQUENCES OF THESE
DIFFICULTIES SEEM TO ME FAR LESS WEIGHTY AND MUCH LESS DUBIOUS THAN
THOSE OF THE UPSETTING DECISION OF TODAY.  THEY SEEM TO ME OUTWEIGHED
BY THE SUPPORT WHICH SHOULD BE AFFORDED TO VALID STATE LAW
ENFORCEMENT. 

IF THE MODIFIED RULE I HAVE OUTLINED IS NOT TO BE ADOPTED, HOWEVER,
THE DIFFICULTIES IN THE COURT'S DECISION MAKE IT FAR MORE PREFERABLE IN
MY VIEW TO CONTINUE ADHERENCE TO THE SHARP LINE DRAWN BY WEEKS AND
BYARS BETWEEN STATE-AND-FEDERALLY-SEIZED EVIDENCE.  I WOULD NOT EMBARK
UPON A HAZARDOUS JETTISONING OF A RULE WHICH HAS PREVAILED IN THE
FEDERAL COURTS FOR HALF A CENTURY WITHOUT BRINGING TO THE SURFACE
DEMONSTRATED EVILS, INDEED WITHOUT ITS HAVING EVOKED SERIOUS CRITICISM
OF WEIGHT, BARRING RECENT DISCUSSION LARGELY OF AN ABSTRACT AND
DOCTRINAIRE NATURE.* 

*SEE THE AUTHORITIES CITED IN THE COURT'S NOTE 2, AND SEE HANNA V.
UNITED STATES, 104 U.S. APP. D.C. 205, 260 F.2D 723, THE ONLY COURT OF
APPEALS DECISION TO CONCUR WITH THE VIEWS THE COURT TODAY EXPRESSES. 
WHAT CRITICISMS THERE HAVE BEEN OF THE WEEKS RULE HAVE LARGELY BEEN
STIMULATED BY WOLF AND HAVE IN ESSENCE BEEN REFLECTIONS OF
DISSATISFACTION WITH THE SUBSTANTIVE DECISION IN THAT CASE, AND THUS DO
NOT CONSTITUTE SUPPORTS FOR THE DOCTRINE NOW EVOLVED BY THE COURT. 

MEMORANDUM OF MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR.
JUSTICE WHITTAKER JOIN.* 

*(THIS MEMORANDUM APPLIES ALSO TO NO. 52, RIOS V. UNITED STATES,
POST, P. 253.) 

I SUBSCRIBE TO ALL THAT MY BROTHER FRANKFURTER HAS WRITTEN IN
CRITICISM OF THE COURT'S NEWLY FASHIONED EXCLUSIONARY RULE.  BUT, WITH
DEFERENCE, I MUST ALSO SAY THAT, IN MY VIEW, THE ARGUMENTS WHICH HE HAS
SO CONVINCINGLY SET FORTH LIKEWISE SERVE TO BLOCK THE MORE LIMITED
INROADS WHICH HE WOULD MAKE ON THE SO-CALLED "SILVER PLATTER"
DOCTRINE.  LUSTIG V. UNITED STATES, 338 U.S. 74, 79.  I WOULD RETAIN
INTACT THE NONEXCLUSIONARY RULE OF THE WEEKS AND BYARS CASES, WHICH HAS
BEHIND IT THE STRONGEST JUDICIAL CREDENTIALS, THE SANCTION OF LONG
USAGE, AND THE SUPPORT OF WHAT, IN MY OPINION, IS SOUND CONSTITUTIONAL
DOCTRINE UNDER OUR FEDERAL SCHEME OF THINGS, DOCTRINE WHICH ONLY AS
RECENTLY AS LAST TERM WAS REITERATED BY THIS COURT.  SEE ABBATE V.
UNITED STATES, 359 U.S. 187; BARTKUS V. ILLINOIS, 359 U.S. 121.  EXCEPT
FOR THIS RESERVATION, I JOIN THE DISSENTING OPINION OF MY BROTHER
FRANKFURTER. 

I WOULD AFFIRM THE JUDGMENTS IN BOTH OF THE CASES BEFORE US.
..END :










RIOS V. UNITED STATES 364 U.S. 253 


NO. 52.  ARGUED MARCH 29, 1960 - DECIDED JUNE 27, 1960 - 256 F.2D 173,
JUDGMENT VACATED AND CAUSE REMANDED. 


1.  EVIDENCE SEIZED IN AN UNREASONABLE SEARCH BY STATE OFFICERS MUST
BE EXCLUDED FROM A FEDERAL CRIMINAL TRIAL UPON THE TIMELY OBJECTION OF
A DEFENDANT WHO HAS STANDING TO COMPLAIN.  ELKINS V. UNITED STATES,
ANTE, P. 206.  P. 255. 

2.  WITHOUT PROBABLE CAUSE FOR ARREST AND WITHOUT A WARRANT FOR
SEARCH OR ARREST, STATE POLICE OFFICERS FOLLOWED A TAXICAB IN WHICH
PETITIONER WAS RIDING AND APPROACHED IT WHEN IT STOPPED AT A TRAFFIC
LIGHT.  THE RECORD IS UNCLEAR AS TO THE SEQUENCE OF THE EVENTS WHICH
FOLLOWED; BUT THE CAB DOOR WAS OPENED, PETITIONER DROPPED A
RECOGNIZABLE PACKAGE OF NARCOTICS TO THE FLOOR OF THE VEHICLE, AND ONE
OFFICER GRABBED THE PETITIONER AS HE ALIGHTED FROM THE CAB AND ANOTHER
OFFICER RETRIEVED THE PACKAGE.  IN A STATE PROSECUTION FOR UNLAWFUL
POSSESSION OF NARCOTICS, THE EVIDENCE WAS SUPPRESSED ON THE GROUND THAT
IT HAD BEEN UNLAWFULLY SEIZED, AND PETITIONER WAS ACQUITTED.  LATER, IN
A FEDERAL PROSECUTION UNDER 21 U.S.C. SEC. 174 FOR UNLAWFUL RECEIPT AND
CONCEALMENT OF NARCOTICS, THE FEDERAL DISTRICT COURT DENIED A TIMELY
MOTION TO SUPPRESS AND ADMITTED THE PACKAGE OF NARCOTICS IN EVIDENCE,
AND PETITIONER WAS CONVICTED.  THE COURT OF APPEALS AFFIRMED.  HELD:
THE CASE IS REMANDED TO THE DISTRICT COURT FOR DETERMINATION AS TO THE
LAWFULNESS OF THE STATE OFFICERS' CONDUCT, IN ACCORDANCE WITH THE BASIC
PRINCIPLES GOVERNING THE VALIDITY OF SEARCHES AND SEIZURES BY FEDERAL
OFFICERS UNDER THE FOURTH AMENDMENT, AND FOR OTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  PP. 255-262. 

(A)  ON THE RECORD, IT CANNOT BE SAID THAT THERE EXISTED PROBABLE
CAUSE FOR AN ARREST WHEN THE OFFICERS DECIDED TO ALIGHT FROM THEIR CAR
AND APPROACH THE TAXICAB IN WHICH PETITIONER WAS RIDING.  P. 261. 

(B)  THEREFORE, IF THE ARREST OCCURRED WHEN THE OFFICERS TOOK THEIR
POSITIONS AT THE DOORS OF THE TAXICAB, NOTHING THAT HAPPENED THEREAFTER
COULD MAKE THE ARREST LAWFUL OR JUSTIFY A SEARCH AS ITS INCIDENT.  PP.
261-262. 

(C)  IF THE PETITIONER VOLUNTARILY REVEALED THE PACKAGE OF NARCOTICS
TO THE OFFICERS' VIEW, A LAWFUL ARREST COULD THEN HAVE BEEN SUPPORTED
BY REASONABLE CAUSE TO BELIEVE THAT A FELONY WAS BEING COMMITTED IN
THEIR PRESENCE.  P. 262. 

(D)  THE VALIDITY OF THE SEARCH TURNS UPON THE NARROW QUESTION OF
WHEN THE ARREST OCCURRED, AND THE ANSWER TO THAT QUESTION DEPENDS UPON
AN EVALUATION OF THE CONFLICTING TESTIMONY OF THOSE WHO WERE PRESENT AT
THE TIME.  P. 262. 

RIOS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

AN INDICTMENT FILED IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA CHARGED THE PETITIONER WITH UNLAWFUL
RECEIPT AND CONCEALMENT OF NARCOTICS IN VIOLATION OF 21 U.S.C. SEC.
174.  BEFORE TRIAL THE PETITIONER MADE A MOTION TO SUPPRESS FOR USE AS
EVIDENCE A PACKAGE OF HEROIN WHICH, SO A CALIFORNIA COURT HAD FOUND,
LOS ANGELES POLICE OFFICERS HAD OBTAINED FROM THE PETITIONER IN AN
UNCONSTITUTIONAL SEARCH AND SEIZURE.  AFTER A HEARING THE DISTRICT
COURT DENIED THE MOTION TO SUPPRESS, FINDING THAT FEDERAL AGENTS HAD
NOT PARTICIPATED IN THE SEARCH, AND FINDING ALSO THAT THE CALIFORNIA
OFFICERS HAD OBTAINED THE EVIDENCE IN A LAWFUL MANNER.  THE PACKAGE OF
NARCOTICS WAS ADMITTED IN EVIDENCE OVER THE PETITIONER'S RENEWED
OBJECTION AT HIS SUBSEQUENT TRIAL.  HE WAS CONVICTED AND SENTENCED TO
TWENTY YEARS IN PRISON. 

THE COURT OF APPEALS AFFIRMED THE CONVICTION, ACCEPTING THE DISTRICT
COURT'S FINDING THAT THE SEIZURE HAD BEEN LAWFUL, AND HOLDING THAT IN
ANY EVENT ILLEGALLY SEIZED EVIDENCE "MAY NEVERTHELESS BE RECEIVED IN A
FEDERAL PROSECUTION, IF THE SEIZURE WAS MADE WITHOUT THE PARTICIPATION
OF FEDERAL OFFICERS."  256 F.2D 173, AT 176.  CERTIORARI WAS GRANTED IN
AN ORDER WHICH LIMITED THE QUESTIONS FOR CONSIDERATION TO TWO, 359 U.S.
965: 

"1. INDEPENDENTLY OF THE STATE COURT'S DETERMINATION, WAS THE
EVIDENCE USED AGAINST PETITIONER IN THE FEDERAL PROSECUTION OBTAINED IN
VIOLATION OF HIS RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES? 

"2.  IF THE EVIDENCE WAS UNLAWFULLY OBTAINED, WAS SUCH EVIDENCE
ADMISSIBLE IN THE FEDERAL PROSECUTION OF PETITIONER BECAUSE IT WAS
OBTAINED BY STATE OFFICERS WITHOUT FEDERAL PARTICIPATION?" 

IN ELKINS V. UNITED STATES, DECIDED TODAY, ANTE, P. 206, THE COURT
HAS ANSWERED THE SECOND QUESTION BY HOLDING THAT EVIDENCE SEIZED IN AN
UNREASONABLE SEARCH BY STATE OFFICERS IS TO BE EXCLUDED FROM A FEDERAL
CRIMINAL TRIAL UPON THE TIMELY OBJECTION OF A DEFENDANT WHO HAS
STANDING TO COMPLAIN.  THE ONLY QUESTION THAT REMAINS IN THIS CASE,
THEREFORE, IS WHETHER THE LOS ANGELES OFFICERS OBTAINED THE PACKAGE OF
HEROIN "DURING A SEARCH WHICH, IF CONDUCTED BY FEDERAL OFFICERS, WOULD
HAVE VIOLATED THE DEFENDANT'S IMMUNITY FROM UNREASONABLE SEARCHES AND
SEIZURES UNDER THE FOURTH AMENDMENT."  ANTE, P. 223.  AS IN MOST CASES
INVOLVING A CLAIMED UNCONSTITUTIONAL SEARCH AND SEIZURE, RESOLUTION OF
THE QUESTION REQUIRES A PARTICULARIZED EVALUATION OF THE CONDUCT OF THE
OFFICERS INVOLVED.  SEE GO-BART CO. V. UNITED STATES, 282 U.S. 344,
357. 

AT ABOUT TEN O'CLOCK ON THE NIGHT OF FEBRUARY 18, 1957, TWO LOS
ANGELES POLICE OFFICERS, DRESSED IN PLAIN CLOTHES AND RIDING IN AN
UNMARKED CAR, OBSERVED A TAXICAB STANDING IN A PARKING LOT NEXT TO AN
APARTMENT HOUSE AT THE CORNER OF FIRST AND FLOWER STREETS IN LOS
ANGELES.  THE NEIGHBORHOOD HAD A REPUTATION FOR "NARCOTICS ACTIVITY." 
THE OFFICERS SAW THE PETITIONER LOOK UP AND DOWN THE STREET, WALK
ACROSS THE LOT, AND GET INTO THE CAB.  NEITHER OFFICER HAD EVER BEFORE
SEEN THE PETITIONER, AND NEITHER OF THEM HAD ANY IDEA OF HIS IDENTITY. 
EXCEPT FOR THE REPUTATION OF THE NEIGHBORHOOD, NEITHER OFFICER HAD
RECEIVED INFORMATION OF ANY KIND TO SUGGEST THAT SOMEONE MIGHT BE
ENGAGED IN CRIMINAL ACTIVITY AT THAT TIME AND PLACE.  THEY WERE NOT
SEARCHING FOR A PARTICIPANT IN ANY PREVIOUS CRIME.  THEY WERE IN
POSSESSION OF NO ARREST OR SEARCH WARRANTS. 

THE TAXICAB DROVE AWAY, AND THE OFFICERS FOLLOWED IT IN THEIR CAR FOR
A DISTANCE OF ABOUT TWO MILES THROUGH THE CITY.  AT THE INTERSECTION OF
FIRST AND STATE STREETS THE CAB STOPPED FOR A TRAFFIC LIGHT.  THE TWO
OFFICERS ALIGHTED FROM THEIR CAR AND APPROACHED ON FOOT TO OPPOSITE
SIDES OF THE CAB.  ONE OF THE OFFICERS IDENTIFIED HIMSELF AS A
POLICEMAN.  IN THE NEXT MINUTE THERE OCCURRED A RAPID SUCCESSION OF
EVENTS.  THE CAB DOOR WAS OPENED; THE PETITIONER DROPPED A RECOGNIZABLE
PACKAGE OF NARCOTICS TO THE FLOOR OF THE VEHICLE; ONE OF THE OFFICERS
GRABBED THE PETITIONER AS HE ALIGHTED FROM THE CAB; THE OTHER OFFICER
RETRIEVED THE PACKAGE; AND THE FIRST OFFICER DREW HIS REVOLVER.  (FN1) 

THE PRECISE CHRONOLOGY OF ALL THAT HAPPENED IS NOT CLEAR IN THE
RECORD.  IN THEIR ORIGINAL ARREST REPORT THE POLICE STATED THAT THE
PETITIONER DROPPED THE PACKAGE ONLY AFTER ONE OF THE OFFICERS HAD
OPENED THE CAB DOOR.  IN TESTIFYING LATER, THIS OFFICER SAID THAT HE
SAW THE DEFENDANT DROP THE PACKAGE BEFORE THE DOOR OF THE CAB WAS
OPENED.  THE TAXI DRIVER GAVE A SUBSTANTIALLY DIFFERENT VERSION OF WHAT
OCCURRED.  HE STATED THAT ONE OF THE OFFICERS DREW HIS REVOLVER AND
"TOOK HOLD OF THE DEFENDANT'S ARM WHILE HE WAS STILL IN THE CAB." 
(FN2) 

A STATE CRIMINAL PROSECUTION WAS INSTITUTED AGAINST THE PETITIONER,
CHARGING HIM WITH POSSESSION OF NARCOTICS, A FELONY UNDER CALIFORNIA
LAW.  CAL. HEALTH AND SAFETY CODE, SEC. 11500.  AT A PRELIMINARY
HEARING THE TWO LOS ANGELES OFFICERS TESTIFIED AS TO THE CIRCUMSTANCES
SURROUNDING THE ARREST AND SEIZURE.  WHEN THE CASE CAME ON FOR TRIAL IN
THE SUPERIOR COURT OF LOS ANGELES COUNTY, THE PETITIONER MOVED TO
SUPPRESS AS EVIDENCE THE PACKAGE OF HEROIN WHICH THE POLICE HAD
SEIZED.  ON THE BASIS OF THE TRANSCRIPT OF THE PRELIMINARY HEARING, AND
AFTER BRIEF ARGUMENT BY COUNSEL, THE COURT GRANTED THE MOTION AND
ENTERED A JUDGMENT OF ACQUITTAL.  (FN3) 

THEREAFTER, ONE OF THE LOS ANGELES OFFICERS WHO HAD ARRESTED THE
PETITIONER DISCUSSED THE CASE WITH HIS SUPERIORS AND SUGGESTED GIVING
THE EVIDENCE TO UNITED STATES AUTHORITIES.  HE THEN GOT IN TOUCH WITH
FEDERAL NARCOTICS AGENTS AND TOLD THEM ABOUT THE PETITIONER'S CASE. 
THIS LED TO THE FEDERAL PROSECUTION WE NOW REVIEW.  (FN4) 

IN HOLDING THAT THE PACKAGE OF HEROIN WHICH HAD BEEN SEIZED BY THE
STATE OFFICERS WAS ADMISSIBLE AS EVIDENCE IN THE FEDERAL TRIAL, THE
DISTRICT COURT PLACED PRIME RELIANCE UPON THE SILVER PLATTER DOCTRINE,
THERE HAVING BEEN NO PARTICIPATION BY FEDERAL AGENTS IN THE SEARCH AND
SEIZURE.  BUT THE COURT ALSO EXPRESSED THE OPINION, BASED UPON THE
TRANSCRIPT OF THE STATE COURT PROCEEDINGS AND ADDITIONAL TESTIMONY OF
THE TWO LOS ANGELES POLICE OFFICERS AT THE HEARING ON THE MOTION TO
SUPPRESS, THAT THE OFFICERS HAD OBTAINED THE EVIDENCE LAWFULLY.  THE
COURT WAS OF THE VIEW THAT THE SEIZURE WAS PERMISSIBLE AS AN INCIDENT
TO A LEGAL ARREST, OR, ALTERNATIVELY, THAT THE PETITIONER HAD ABANDONED
THE NARCOTICS WHEN HE DROPPED THEM TO THE FLOOR OF THE TAXICAB.  AT THE
TIME THIS OPINION WAS EXPRESSED, HOWEVER, THE DISTRICT JUDGE HAD NOT
YET HEARD THE TAXICAB DRIVER'S VERSION OF THE CIRCUMSTANCES SURROUNDING
THE ARREST AND SEIZURE.  THE DRIVER DID NOT TESTIFY UNTIL THE TRIAL
ITSELF.  AFTER HE HAD TESTIFIED, THE PACKAGE OF HEROIN WAS OFFERED IN
EVIDENCE.  THE PETITIONER'S COUNSEL OBJECTED, AND THE COURT OVERRULED
THE OBJECTION WITHOUT COMMENT.  SEE GOULED V. UNITED STATES, 255 U.S.
298, 312-313; AMOS V. UNITED STATES, 255 U.S. 313, 316-317; JONES V.
UNITED STATES, 362 U.S. 257, 264.  FOR ALL THAT APPEARS, THIS RULING
MAY THEN HAVE BEEN BASED SOLELY UPON THE SILVER PLATTER DOCTRINE. 
MOREOVER, THE COURT OF APPEALS GAVE NO CONSIDERATION TO THE QUESTION OF
THE LEGALITY OF THE STATE SEARCH AND SEIZURE, RELYING AS IT DID UPON
THE SILVER PLATTER DOCTRINE AND REJECTING THE PETITIONER'S CONTENTION
THAT THE STATE COURT'S DETERMINATION OF ILLEGALITY PRECLUDED THE
FEDERAL TRIAL COURT FROM MAKING AN INDEPENDENT INQUIRY INTO THE
MATTER. 

WITH THE CASE IN SUCH A POSTURE, WE HAVE CONCLUDED THAT THE INTERESTS
OF JUSTICE WILL BEST BE SERVED BY REMANDING THE CASE TO THE DISTRICT
COURT.  THERE, FREE FROM THE ENTANGLEMENT OF OTHER ISSUES THAT HAVE NOW
BECOME IRRELEVANT, THE LAWFULNESS OF THE POLICEMEN'S CONDUCT CAN BE
DETERMINED IN ACCORD WITH THE BASIC PRINCIPLES GOVERNING THE VALIDITY
OF SEARCHES AND SEIZURES BY FEDERAL OFFICERS UNDER THE FOURTH
AMENDMENT. 

UNDER THESE PRINCIPLES THE INQUIRY IN THE PRESENT CASE WILL BE
NARROWLY ORIENTED.  THE SEIZURE CAN SURVIVE CONSTITUTIONAL INHIBITION
ONLY UPON A SHOWING THAT THE SURROUNDING FACTS BROUGHT IT WITHIN ONE OF
THE EXCEPTIONS TO THE RULE THAT A SEARCH MUST REST UPON A SEARCH
WARRANT.  JONES V. UNITED STATES, 357 U.S. 493, 499; UNITED STATES V.
JEFFERS, 342 U.S. 48, 51.  HERE JUSTIFICATION IS PRIMARILY SOUGHT UPON
THE CLAIM THAT THE SEARCH WAS AN INCIDENT TO A LAWFUL ARREST.  YET UPON
NO POSSIBLE VIEW OF THE CIRCUMSTANCES REVEALED IN THE TESTIMONY OF THE
LOS ANGELES OFFICERS COULD IT BE SAID THAT THERE EXISTED PROBABLE CAUSE
FOR AN ARREST AT THE TIME THE OFFICERS DECIDED TO ALIGHT FROM THEIR CAR
AND APPROACH THE TAXI IN WHICH THE PETITIONER WAS RIDING.  COMPARE
BRINEGAR V. UNITED STATES, 338 U.S. 160; CARROLL V. UNITED STATES, 267
U.S. 132; HENRY V. UNITED STATES, 361 U.S. 98.  THIS THE GOVERNMENT
CONCEDES.  (FN5) 

IF, THEREFORE, THE ARREST OCCURRED WHEN THE OFFICERS TOOK THEIR
POSITIONS AT THE DOORS OF THE TAXICAB, THEN NOTHING THAT HAPPENED
THEREAFTER COULD MAKE THAT ARREST LAWFUL, OR JUSTIFY A SEARCH AS ITS
INCIDENT.  UNITED STATES V. DI RE, 332 U.S. 581; JOHNSON V. UNITED
STATES, 333 U.S. 10; MILLER V. UNITED STATES, 357 U.S. 301; HENRY V.
UNITED STATES, 361 U.S. 98.  BUT THE GOVERNMENT ARGUES THAT THE
POLICEMEN APPROACHED THE STANDING TAXI ONLY FOR THE PURPOSE OF ROUTINE
INTERROGATION, AND THAT THEY HAD NO INTENT TO DETAIN THE PETITIONER
BEYOND THE MOMENTARY REQUIREMENTS OF SUCH A MISSION.  IF THE PETITIONER
THEREAFTER VOLUNTARILY REVEALED THE PACKAGE OF NARCOTICS TO THE
OFFICERS' VIEW, A LAWFUL ARREST COULD THEN HAVE BEEN SUPPORTED BY THEIR
REASONABLE CAUSE TO BELIEVE THAT A FELONY WAS BEING COMMITTED IN THEIR
PRESENCE.  (FN6)  THE VALIDITY OF THE SEARCH THUS TURNS UPON THE NARROW
QUESTION OF WHEN THE ARREST OCCURRED, AND THE ANSWER TO THAT QUESTION
DEPENDS UPON AN EVALUATION OF THE CONFLICTING TESTIMONY OF THOSE WHO
WERE THERE THAT NIGHT. 

THE JUDGMENT IS VACATED, AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  VACATED
AND REMANDED. 

FN1  THE PETITIONER LATER BROKE FREE FROM THE POLICEMAN'S GRASP AND
RAN INTO AN ALLEY.  THERE THE OFFICER APPREHENDED HIM AFTER SHOOTING
HIM IN THE BACK. 

FN2  "Q.  WILL YOU JUST TELL US IN YOUR OWN WORDS, MR. SMITH, WHAT
HAPPENED IMMEDIATELY AFTER THE TIME YOU SAW OFFICER BECKMANN? 

"A.  WELL, HE APPEARED ALONGSIDE MY TAXICAB ON THE RIGHT-HAND SIDE
OPPOSITE THE FRONT WINDOW ON THE RIGHT HOLDING A FLASHLIGHT IN HIS
RIGHT HAND, I BELIEVE, AND HIS BILLFOLD IN HIS LEFT  ...  . 

"THE COURT:  THEN WHAT HAPPENED? 

"THE WITNESS:  THEN I BELIEVE HE TURNED TOWARD THE DEFENDANT WHO WAS
RIDING IN THE BACK OF THE CAB AND I THINK HE MOTIONED WITH HIS BILLFOLD
TOWARD THE DEFENDANT AND HE OPENED THE DOOR.  NOW SOMEWHERE ALONG IN
HERE I THINK BECKMANN DISPOSED OF HIS FLASHLIGHT.  I DIDN'T NOTICE
EXACTLY WHAT HAPPENED THERE. 

"BY MRS. BULGRIN: 

"Q.  WHAT DID THE DEFENDANT DO?  WHAT WAS HAPPENING AS FAR AS THE
DEFENDANT WAS CONCERNED? 

"A.  WELL, HE APPEARED TO BE BECOMING QUITE AGITATED. 

"Q.  WHILE HE WAS INSIDE THE CAB? 

"A.  WHILE HE WAS INSIDE THE CAB, YES. 

"Q.  WHEN THE DOOR OPENED DID HE GET OUT? 

"A.  WELL, THERE ARE OTHER EVENTS BEFORE HE GOT OUT. 

"THE COURT:  WHAT WERE THEY? 

"THE WITNESS:  WELL, I AM TRYING TO GET THESE IN THE RIGHT ORDER.  IT
IS DIFFICULT BECAUSE THINGS HAPPENED QUICKLY  ...  . 

"THE WITNESS:  OFFICER BECKMANN OPENED THE DOOR AND I ASKED HIM WHO
HE WAS, THAT IS, HE OPENED THE REAR DOOR OF THE TAXICAB AND HE SAID,
'WE ARE POLICE OFFICERS.'  I JUST WANTED TO SATISFY MY OWN MIND ABOUT
THAT.  I DIDN'T KNOW WHETHER HE WAS A POLICEMAN OR A HIJACKER
POSITIVELY, BUT I THOUGHT THAT HE WAS A POLICEMAN BUT I WANTED TO BE
SURE.  SO HE SAID, 'WE ARE POLICE OFFICERS.' 

"I THOUGHT PROBABLY IT WAS JUST A ROUTINE EXAMINATION.  I WORK THE
NIGHT SHIFT, HAVE FOR SOME TIME, AND I HAVE BEEN STOPPED BY THE POLICE
AND THEY HAVE CHECKED THE OCCUPANTS OF MY CAB.  THERE HAVE BEEN QUITE A
FEW HOLDUPS OF TAXI DRIVERS AND I JUST THOUGHT IT WAS A ROUTINE THING. 

"BUT THE DEFENDANT WAS GETTING QUITE AGITATED AND I NOTICED AT THIS
TIME THAT OFFICER BECKMANN HAD HIS REVOLVER DRAWN, WHICH SEEMED TO ME
SOMEWHAT EXTRAORDINARY JUST TO STOP AND QUESTION AN OCCUPANT OF A CAB,
AND SAID SOMETHING TO THE EFFECT THAT YOU ARE SCARING HIM, WHAT IS THE
BIG IDEA, SOMETHING LIKE THAT.  I DON'T REMEMBER MY EXACT WORDS. 

"AS I RECALL THEN OFFICER BECKMANN TOOK THE DEFENDANT BY THE ARM: 

"BY MRS. BULGRIN: 

"Q.  THAT WAS AFTER THE DEFENDANT GOT OUT OF THE CAB, IS THAT
CORRECT? 

"A.  IT WAS MY IMPRESSION THAT OFFICER BECKMANN TOOK HOLD OF THE
DEFENDANT'S ARM WHILE HE WAS STILL IN THE CAB  ...  . 

"THE COURT:  HOW COULD YOU TELL THE DEFENDANT WAS AGITATED? 

"THE WITNESS:  WELL, IT IS A ROUGH IMPRESSION BUT I WAS SUFFICIENTLY
IMPRESSED WITH THE FACT AT THE TIME TO PROTEST TO OFFICER BECKMANN THAT
HE WAS FRIGHTENING HIM, AND AS FAR AS I KNEW THERE WAS NO GOOD CAUSE TO
BE FRIGHTENING HIM WITH A DRAWN REVOLVER.  MAYBE IT WAS ME WHO WAS
AGITATED."    ON CROSS-EXAMINATION THE TAXI DRIVER TESTIFIED AS
FOLLOWS: 

"WELL, I WOULD SAY THAT THE MOST PROMINENT THING IN MY EYESIGHT AT
THE TIME WAS THIS REVOLVER, WHICH LOOKED THE SIZE OF A CANNON  ...  . 

"AT THE TIME HE OPENED THE DOOR, I CAN'T SAY JUST AT WHAT POINT IN
THE ORDER OF THESE EVENTS HE DREW HIS REVOLVER, BUT AT SOME TIME BEFORE
OR AFTER THE DOOR WAS OPENED, WHILE RIOS WAS STILL SITTING IN THE CAB,
HE DREW HIS REVOLVER." 

FN3  CALIFORNIA FOLLOWS THE SO-CALLED EXCLUSIONARY RULE.  PEOPLE V.
CAHAN, 44 CAL. 2D 434, 282 P.2D 905.  THE BASIS FOR THE TRIAL COURT'S
SUPPRESSION OF THE EVIDENCE IS REVEALED IN THE FOLLOWING EXCERPT FROM
THE JUDGE'S BRIEF ORAL OPINION: 

"AS I SEE IT, I CAN'T POSSIBLY SEE HOW THIS ARREST COULD HAVE
ORIGINALLY BEEN ATTEMPTED UNDER THE INFORMATION THE OFFICER VERY
FRANKLY TELLS US THAT HE HAD.  I DON'T THINK ANY REASONABLE MAN WOULD
THINK A FELONY HAD BEEN COMMITTED BECAUSE A MAN COMES OUT OF A
BUILDING, LOOKS UP THE STREET, AND THE OTHER WAY ON THE STREET, THEN
LOOKS UP FIRST STREET, THEN WALKS TO AN AUTOMOBILE IN A PARKING LOT,
GETS IN A TAXICAB AND DRIVES AWAY.  WHAT IN THE WORLD THERE IS IN THAT,
TOGETHER WITH THE FACT IT HAPPENS TO BE FIRST AND HOPE OR FIRST AND
FLOWER - I FORGET WHICH IT IS - AND ALSO THAT SOMEBODY ELSE WAS
ARRESTED IN A TAXICAB, WHEN THERE ARE SO MANY HUNDREDS OF TAXICABS IN
THIS COMMUNITY, ABOUT THREE MONTHS BEFORE, JUST TO STATE IT SHOWS THE
ABSURDITY OF IT, INSOFAR AS I SEE, AND YOUR MOTION TO SUPPRESS THE
EVIDENCE WILL BE GRANTED -  ...  . 

"I FIND HIM NOT GUILTY AS CHARGED.  THEY WILL GET YOU SOMETIME, RIOS;
THEY DIDN'T GET YOU THIS TIME BUT THEY WILL SOMETIME." 

FN4  "Q.  WHAT OCCASIONED THE PRESENTATION OF THIS CASE TO THE
FEDERAL GRAND JURY AFTER THE RULING IN THE SUPERIOR COURT ACROSS THE
STREET, MR. BECKMANN, IN THIS PARTICULAR CASE? 

"A.  AFTER THE RULING IN THE SUPERIOR COURT, APPROXIMATELY A WEEK OR
TWO WEEKS LATER, I CONFERRED WITH MY DIVISIONAL COMMANDER, CAPTAIN
CLAVIS, ABOUT THE CASE, AND AT THAT TIME I SHOWED HIM THE ARREST
REPORTS AND DISCUSSED THE CASE WITH HIM. 

"HE THEN CALLED CAPTAIN MADDEN OF THE NARCOTICS DIVISION OF THE LOS
ANGELES POLICE DEPARTMENT.  I THEN WENT OVER AND TALKED TO CAPTAIN
MADDEN OF THE LOS ANGELES POLICE DEPARTMENT.  CAPTAIN MADDEN THEN
LOOKED AT THE ARREST REPORT, AND I DISCUSSED THE CASE WITH HIM GOING TO
THE FEDERAL NARCOTICS TO PRESENT THE CASE. 

"Q.  WHOLE IDEA WAS THAT?  WAS THAT YOURS OR CAPTAIN MADDEN'S? 

"A.  MINE. 

"Q.  IN OTHER WORDS, DID YOU INSTITUTE THE DISCUSSION WITH CAPTAIN
MADDEN? 

"A.  YES.  CAPTAIN MADDEN THEN CALLED FEDERAL NARCOTICS AND I WENT
OVER TO FEDERAL NARCOTICS AND TALKED TO MR. GOVEN.  AT THAT TIME I
SHOWED HIM A COPY OF MY ARREST REPORT AND DISCUSSED THE CASE WITH
HIM." 

FN5  AT THE TIME OF THE ARREST THE CALIFORNIA STATUTE GOVERNING
ARREST WITHOUT WARRANT PROVIDED AS FOLLOWS: 

"A PEACE OFFICER MAY MAKE AN ARREST IN OBEDIENCE TO A WARRANT
DELIVERED TO HIM, OR MAY, WITHOUT A WARRANT, ARREST A PERSON: 

"1.  FOR A PUBLIC OFFENSE COMMITTED OR ATTEMPTED IN HIS PRESENCE. 

"2.  WHEN A PERSON ARRESTED HAS COMMITTED A FELONY, ALTHOUGH NOT IN
HIS PRESENCE. 

"3.  WHEN A FELONY HAS IN FACT BEEN COMMITTED, AND HE HAS REASONABLE
CAUSE FOR BELIEVING THE PERSON ARRESTED TO HAVE COMMITTED IT. 

"4.  ON A CHARGE MADE, UPON A REASONABLE CAUSE, OF THE COMMISSION OF
A FELONY BY THE PARTY ARRESTED. 

"5.  AT NIGHT, WHEN THERE IS REASONABLE CAUSE TO BELIEVE THAT HE HAS
COMMITTED A FELONY."  CAL.  PENAL CODE (1956 ED.), SEC. 836 (LATER
AMENDED, STAT. 1957, C. 2147, SEC. 2). 

FN6  A PASSENGER WHO LETS A PACKAGE DROP TO THE FLOOR OF THE TAXICAB
IN WHICH HE IS RIDING CAN HARDLY BE SAID TO HAVE "ABANDONED" IT.  AN
OCCUPIED TAXICAB IS NOT TO BE COMPARED TO AN OPEN FIELD, HESTER V.
UNITED STATES, 265 U.S. 57, OR A VACATED HOTEL ROOM, ABEL V. UNITED
STATES, 362 U.S. 217. 

(FOR OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE CLARK,
MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER, SEE ANTE, P. 233.) 

(FOR MEMORANDUM OF MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE CLARK
AND MR. JUSTICE WHITTAKER, SEE ANTE, P. 251.) 
..END :















OHIO, EATON V. PRICE 364 U.S. 263 


NO. 30.  ARGUED APRIL 19, 1960 - DECIDED JUNE 27, 1960 - REPORTED BELOW:
168 OHIO ST. 123, 151 N.E.2D 523. 


PETITIONER WAS ARRESTED AND HELD IN JAIL AWAITING TRIAL ON A CRIMINAL
CHARGE FOR REFUSING TO PERMIT BUILDING INSPECTORS TO ENTER AND INSPECT
HIS HOME WITHOUT A SEARCH WARRANT, AS REQUIRED BY SEC. 806-30(A) OF THE
DAYTON, OHIO, CODE OF GENERAL ORDINANCES.  ON REVIEW OF HABEAS CORPUS
PROCEEDINGS IN THE LOWER STATE COURTS, THE SUPREME COURT OF OHIO
SUSTAINED THE CONSTITUTIONALITY OF THE ORDINANCE.  HELD:  THE JUDGMENT
IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

OHIO EX REL. EATON V. PRICE, CHIEF OF POLICE. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE DOUGLAS JOIN. 

THE JUDGMENT OF THE OHIO SUPREME COURT IN THIS CASE IS BEING AFFIRMED
EX NECESSITATE, BY AN EQUALLY DIVIDED COURT.  FOUR OF THE JUSTICES
PARTICIPATING ARE OF OPINION THAT THE JUDGMENT SHOULD BE AFFIRMED,
WHILE WE FOUR THINK IT SHOULD BE REVERSED.  ACCORDINGLY, THE JUDGMENT
IS WITHOUT FORCE AS PRECEDENT.  THE ANTELOPE, 10 WHEAT.  66, 126;
ETTING V. BANK OF THE UNITED STATES, 11 WHEAT.  59, 78.  IN SUCH
CIRCUMSTANCES, AS THOSE LEADING CASES INDICATE, THE USUAL PRACTICE IS
NOT TO EXPRESS ANY OPINION, FOR SUCH AN EXPRESSION IS UNNECESSARY WHERE
NOTHING IS SETTLED.  BUT IN THIS CASE, EVEN BEFORE THE CAUSE WAS
ARGUED, FOUR JUSTICES MADE PUBLIC RECORD OF THEIR VOTES TO AFFIRM THE
JUDGMENT, AND THEIR BASIS THEREFOR.  360 U.S. 246, 248-249.  THESE FOUR
JUSTICES STATED THAT THEY WERE "OF THE VIEW THAT THIS CASE IS
CONTROLLED BY, AND SHOULD BE AFFIRMED ON THE AUTHORITY OF, FRANK V.
MARYLAND, 359 U.S. 360."  THEIR OPINION FURTHER STATES THAT THEY DEEMED
"THE DECISION IN THE MARYLAND CASE TO BE COMPLETELY CONTROLLING UPON
THE OHIO DECISION."  IN A LONGER OPINION, ONE OF THE FOUR JUSTICES
DEVELOPED HIS VIEWS ON THE MERITS FURTHER.  360 U.S., AT 249-250.  THE
USUAL PRACTICE OF NOT EXPRESSING OPINIONS UPON AN EQUAL DIVISION HAS
THE SALUTARY FORCE OF PREVENTING THE IDENTIFICATION OF THE JUSTICES
HOLDING THE DIFFERING VIEWS AS TO THE ISSUE, AND THIS MAY WELL ENABLE
THE NEXT CASE PRESENTING IT TO BE APPROACHED WITH LESS COMMITMENT.  BUT
THE ACTION WE HAVE DESCRIBED PREVENTS THIS FROM BEING THE CASE HERE;
AND SO THE REASON FOR THE USUAL PRACTICE IS NOT APPLICABLE. 
ACCORDINGLY, SINCE ARGUMENT HAS BEEN HAD, AND VOTES ON THE MERITS ARE
NOW IN ORDER, WE EXPRESS OUR OPINION.  (FN1) 

THIS CASE INVOLVES EARL TAYLOR, WHO IS IN HIS SIXTIES AND HAS BEEN
WORKING AT HIS TRADE OF PLUMBER FOR 40 YEARS, AND THE HOME AT 130 HENRY
STREET, IN DAYTON, OHIO, WHICH HE AND HIS WIFE BOUGHT AND IN WHICH THEY
HAVE LIVED FOR OVER A DECADE.  HE DESCRIBES IT AS A LITTLE COTTAGE, ALL
IN ONE FLOOR, WITH A FRONT ROOM, A MIDDLE ROOM, TWO BEDROOMS, A DINING
ROOM AND A LITTLE UTILITY ROOM, AND A BATHROOM AND A LITTLE KITCHEN AT
THE BACK.  WHAT WAS EVIDENTLY TAYLOR'S FIRST INVOLVEMENT WITH THE
CRIMINAL LAW OCCURRED IN THIS FASHION.  ONE DAY THREE MEN WHO WERE
HOUSING INSPECTORS CAME TO HIS DOOR, AND SAID THEY WANTED TO COME INTO
THE HOUSE AND GO THROUGH THE HOUSE AND INSPECT THE INSIDE OF THE
HOUSE.  THEY HAD NO CREDENTIALS, ONLY A SHEET OF YELLOW NOTE PAPER, AND
TAYLOR SAID TO THEM, "YOU HAVE NOTHING TO SHOW ME YOU HAVE GOT A RIGHT
TO GO THROUGH MY HOUSE."  THE RESPONSE WAS, "WE DON'T HAVE TO HAVE,
ACCORDING TO THE LAW PASSED FOUR YEARS AGO."  (FN2)  REPLIED TAYLOR,
"THAT DON'T SHOW ME THAT YOU GOT ANYTHING IN THERE THAT YOU WANT FOR
INSPECTION, AND, FURTHER, I DON'T HAVE NOTHING IN MY HOUSE THAT HAS TO
BE INSPECTED."  THE MAN SAID, "WELL, YOU KNOW, ACCORDING TO THIS
ORDINANCE, THAT WE GOT A RIGHT TO GO THROUGH YOUR HOUSE AND INSPECT
YOUR HOUSE."  "NO. I DON'T THINK YOU HAVE, UNLESS YOU GOT A SEARCH
WARRANT," ANSWERED TAYLOR.  THIS HAS BEEN HIS POSITION EVER SINCE, AND
IT IS THE ISSUE THAT DIVIDES US. 

THE MEN WENT AWAY, BUT LATER THERE WAS A SECOND ATTEMPT TO GAIN
ACCESS TO TAYLOR'S HOUSE, AND A TELEPHONE CALL TO THE SAME END.  TAYLOR
SAID, "I DON'T SEE WHAT RIGHT THAT YOU GOT COMING INTO MY HOUSE.  UNTIL
YOU SHOW ME IN WRITING, OR SOME KIND OF FACTS, THAT YOU GOT A RIGHT TO
COME INTO MY HOUSE AND INSPECT THE HOUSE, I WILL NOT LET YOU IN."  THE
THIRD TIME THE MEN CAME, THERE WERE TWO OF THEM.  ONE HAD SOME SORT OF
CREDENTIAL WITH A PHOTOGRAPH ON IT.  NEITHER HAD A WARRENT OF ANY
KIND.  ONE SAID THE HOUSING INSPECTOR WANTED TO INSPECT TAYLOR'S
HOUSE.  TAYLOR SAID, "WHAT DO YOU HAVE IN THERE THAT YOU WANT TO
INSPECT?  I HAVE NOTHING IN MY HOUSE FOR INSPECTION."  HE WAS TOLD:
"WE HAVE A RIGHT TO COME IN YOUR HOUSE, GO THROUGH YOUR HOUSE, INSPECT
THE WHOLE INSIDE OF YOUR HOUSE."  TAYLOR'S REACTION TO THIS WAS:  "YOU
HAVE NOTHING WROTE DOWN ON PAPER.  YOU DON'T HAVE A THING TO SHOW ME
YOU ARE GOING TO COME IN THERE TO INSPECT ANYTHING, AND AS FAR AS THAT
GOES YOU AREN'T COMING IN UNLESS YOU HAVE A SEARCH WARRANT TO GET IN." 
THE MEN NEVER CAME BACK WITH A SEARCH WARRANT, BUT AS THEY LEFT, ONE
SAID, "IF YOU AIN'T GOING TO LET US IN, WE ARE ENTITLED TO GET IN, AND
IF YOU DON'T LET US IN, I AM GOING TO LEAVE IT UP TO THE PROSECUTOR." 
WHEREUPON TAYLOR SAID: "I DON'T CARE WHAT YOU DO.  YOU AREN'T COMING
IN."  TAYLOR LATER TESTIFIED THAT THEN THE MAN "WALKED OVER AND GOT IN
HIS CAR AND THAT WAS THE END OF IT." 

BUT IT WAS NOT.  TAYLOR AND HIS WIFE EACH RECEIVED THROUGH THE MAIL A
REGISTERED LETTER FROM THE CITY PROSECUTOR, NOTIFYING THEM TO APPEAR AT
HIS OFFICE TO ANSWER A COMPLAINT AGAINST THEM.  THEY DID NOT APPEAR;
WHEREUPON THE POLICE CAME TO TAYLOR'S HOME, AND FINALLY SERVED HIM WITH
A WARRANT - A WARRANT TO APPEAR IN COURT TO ANSWER CRIMINAL CHARGES
BROUGHT AGAINST HIM FOR FAILING TO ADMIT THE INSPECTORS TO HIS HOME. 
HE APPEARED IN COURT AND WAS HELD FOR TRIAL; AND NOT BEING THEN ABLE TO
MAKE BOND OF $1,000, HE WAS COMMITTED TO JAIL, TO AWAIT TRIAL ON THE
CHARGES, WHICH COULD HAVE RESULTED IN A FINE OF $200 AND AN
INCARCERATION OF 30 DAYS FOR EACH DAY'S RECALCITRANCE.  ONE EATON, AN
ATTORNEY, FILED A PETITION FOR HABEAS CORPUS ON TAYLOR'S BEHALF IN THE
STATE COMMON PLEAS COURT.  (FN3)  THE COMMON PLEAS COURT FOUND THE
ORDINANCE UNCONSTITUTIONAL, AND DISCHARGED TAYLOR FROM CUSTODY; BUT THE
COURT OF APPEALS REVERSED, 105 OHIO APP. 376, 152 N.E.2D 776, AND ITS
JUDGMENT WAS UPHELD BY THE OHIO SUPREME COURT.  168 OHIO ST. 123, 151
N.E.2D 523.  WE NOTED PROBABLE JURISDICTION.  360 U.S. 246. 

THE MUNICIPAL ORDINANCE IN QUESTION PROVIDES NUMEROUS REQUIREMENTS
FOR DWELLINGS, DEEMED BY THE CITY TO BE APPROPRIATE IN THE INTERESTS OF
THE PUBLIC HEALTH, SAFETY AND COMFORT.  SEVERAL OF THE REQUIREMENTS
APPLY TO PRIVATE DWELLING HOUSES, SUCH AS THE TAYLORS'.  NONE OF THESE
REQUIREMENTS IS AT ALL QUESTIONED HERE.  WHAT IS QUESTIONED IS THE
ORDINANCE PROVISION, CODE OF GENERAL ORDINANCES SEC. 806-30,
AUTHORIZING THE HOUSING INSPECTOR TO ENTER AT ANY REASONABLE HOUR ANY
DWELLING WHATSOEVER, AND COMMANDING THE OWNER OR OCCUPANT TO GIVE HIM
FREE ACCESS AT ANY REASONABLE HOUR FOR THE PURPOSE OF HIS INSPECTION. 
IT WAS ARMED WITH THE NAKED AUTHORITY OF THIS PROVISION, AND NOT WITH
ANY WARRANT (THE ORDINANCE PROVIDES FOR NONE) THAT THE INSPECTORS
APPROACHED TAYLOR'S DOOR, EVEN AFTER HE HAD MADE CLEAR TO THEM HIS
INTENT NOT TO ADMIT THEM ON THIS BASIS.  NEITHER BEFORE A MAGISTRATE
EMPOWERED TO ISSUE WARRANTS, NOR IN THIS PROCEEDING, HAVE THE
INSPECTORS OFFERED ANY JUSTIFICATION FOR THEIR ENTRY.  THEY HAVE NOT
SHOWN ANY PROBABLE CAUSE OR GROUNDS TO BELIEVE THAT A PROSCRIBED
CONDITION EXISTED WITHIN THE COTTAGE, OR EVEN THAT THEY HAD SUSPICION
OR COMPLAINT THEREOF.  THEY HAVE NOT SHOWN THAT THEY DESIRED TO MAKE
THE INSPECTION IN PURSUANCE OF A REGULAR, ROUTINIZED SPOT CHECK OF
INDIVIDUAL HOMES, OR IN PURSUANCE OF A PLANNED BLANKET CHECK OF ALL THE
HOMES IN A PARTICULAR NEIGHBORHOOD, OR THE LIKE.  (FN4)  THESE MIGHT BE
SAID TO BE THE USUAL REASONS WHICH WOULD IMPEL INSPECTORS TO SEEK TO
GAIN ADMITTANCE TO A PRIVATE DWELLING; BUT NONE OF THEM IS SHOWN BY THE
RECORD TO HAVE BEEN PRESENT.  MOST SIGNIFICANTLY, ON THE INITIAL
RECALCITRANCE OF TAYLOR, THE INSPECTORS WERE NOT REQUIRED TO, AND DID
NOT, REPAIR BEFORE ANY INDEPENDENT MAGISTRATE TO DEMONSTRATE TO HIM
THEIR REASONS FOR WANTING TO GAIN ACCESS TO TAYLOR'S COTTAGE, AND TO
OBTAIN HIS WARRANT FOR THEIR ENTRY - THE AUTHORIZATION ON WHICH TAYLOR
WAS INSISTING.  THE JUDGMENT BELOW IS, ON THIS RECORD, BOTTOMED ON THE
PROPOSITION THAT THE INSPECTORS HAVE THE RIGHT TO ENTER A PRIVATE
DWELLING, AND THE HOUSEHOLDER CAN BE BOUND UNDER CRIMINAL PENALTIES TO
ADMIT THEM, THOUGH THERE IS DEMONSTRATION NEITHER OF REASON TO BELIEVE
THERE EXISTS AN IMPROPER CONDITION WITHIN THE DWELLING, NOR OF THE
EXISTENCE OF ANY PLAN OF INSPECTION, APART FROM SUCH A BELIEF, WHICH
WOULD INCLUDE THE INSPECTION OF THE DWELLING IN QUESTION.  WE THINK
THAT AFFIRMANCE OF THIS JUDGMENT WOULD REDUCE THE PROTECTION OF THE
HOUSEHOLDER "AGAINST UNREASONABLE SEARCHES" TO THE VANISHING POINT. 

IN SUPPORT OF THE JUDGMENT BELOW, MUCH RELIANCE AT THE BAR AS BEEN
PUT ON FRANK V. MARYLAND, 359 U.S. 360.  WE WOULD NOT BE CANDID TO SAY
THAT ON ITS OWN FACTS WE HAVE BECOME RECONCILED TO THAT JUDGMENT.  TO
US, IT REMAINS "THE DUBIOUS PRONOUNCEMENT OF A GRAVELY DIVIDED COURT." 
COOPER V. AARON, 358 U.S. 1, 24 (CONCURRING OPINION).  "A SINGLE
DECISION BY A CLOSELY DIVIDED COURT, UNSUPPORTED BY THE CONFIRMATION OF
TIME, CANNOT CHECK" THE COURSE OF CONSTITUTIONAL ADJUDICATION HERE. 
SEE KOVACS V. COOPER, 336 U.S. 77, 89 (CONCURRING OPINION).  WE
CONTINUE TO AGREE WITH JUDGE PRETTYMAN IN DISTRICT OF COLUMBIA V.
LITTLE, 85 U.S. APP. D.C. 242, 246, 178 F.2D 13, 17, AFF'D ON OTHER
GROUNDS, 339 U.S. 1, THAT:  "TO SAY THAT A MAN SUSPECTED OF CRIME HAS A
RIGHT TO PROTECTION AGAINST SEARCH OF HIS HOME WITHOUT A WARRANT, BUT
THAT A MAN NOT SUSPECTED OF CRIME HAS NO SUCH PROTECTION, IS A
FANTASTIC ABSURDITY."  NOTHING DEMONSTRATED IN THE FRANK CASE INDICATES
OTHERWISE TO US.  BUT THE PRESENT CASE GOES MUCH FURTHER THAN FRANK;
AND AS TO THE REASONABLENESS OF SEARCHES, IT HAS BEEN STRESSED THAT
FACTUAL DIFFERENCES MAY WEIGH HEAVILY.  GO-BART IMPORTING CO. V. UNITED
STATES, 282 U.S. 344, 357.  THE SEARCH IN FRANK WAS FOR THE NESTING
PLACE OF RATS.  THERE WERE AMPLE GROUNDS ON THE PART OF THE INSPECTING
OFFICER TO BELIEVE ITS EXISTENCE IN THE HOUSE.  THERE HAD BEEN
COMPLAINT OF RATS IN THE NEIGHBORHOOD; AND AN EXTERNAL INSPECTION OF
THE HOUSE IN QUESTION REVEALED THAT IT WAS "IN AN 'EXTREME STATE OF
DECAY'" AND THAT BEHIND IT THERE WAS A PILE OF "RODENT FECES MIXED WITH
STRAW AND TRASH AND DEBRIS TO APPROXIMATELY HALF A TON."  SEE 359 U.S.,
AT 361.  THE CASE WAS DECIDED BY THE NARROWEST OF DIVISIONS; AND ONE
MEMBER OF THE MAJORITY FOUND IT NECESSARY TO EXPRESS IN A CONCURRING
OPINION THAT THE SOLE PURPOSE OF THE SEARCH WAS AN ATTEMPT "TO LOCATE
THE HABITAT OF DISEASE-CARRYING RODENTS KNOWN TO BE SOMEWHERE IN THE
IMMEDIATE AREA."  359 U.S., AT 373 (CONCURRING OPINION).  THERE WAS NO
CASE OF A "SYSTEMATIC AREA-BY-AREA SEARCH" BEFORE THE COURT, AND
ALTHOUGH CERTAIN REMARKS WERE MADE AS APPLICABLE TO SUCH A SEARCH, 359
U.S., AT 372, THEIR CHARACTER AS DICTA IS PATENT.  THUS, EVEN ACCEPTING
THE JUDGMENT IN FRANK, OF SUCH EXPRESSIONS THE CLASSIC LANGUAGE OF
JUSTICE BRANDEIS, DISSENTING IN JAYBIRD MINING CO. V. WEIR, 271 U.S.
609, 619, CAN BE SAID AGAIN:  "IT IS A PECULIAR VIRTUE OF OUR SYSTEM OF
LAW THAT THE PROCESS OF INCLUSION AND EXCLUSION, SO OFTEN EMPLOYED IN
DEVELOPING A RULE, IS NOT ALLOWED TO END WITH ITS ENUNCIATION AND THAT
AN EXPRESSION IN AN OPINION YIELDS LATER TO THE IMPACT OF FACTS
UNFORESEEN." 

IN THIS CASE WE PASS BEYOND THE SITUATION IN FRANK, WHERE THE
INSPECTOR WAS LOOKING FOR A SPECIFIC VIOLATION, AND WHERE HE HAD, AND
WAS ABLE TO DEMONSTRATE, CONSIDERABLE GROUNDS TO BELIEVE IT EXISTED IN
FRANK'S HOUSE.  HERE IT WOULD APPEAR FROM TAYLOR'S TESTIMONY THAT, EVEN
WITHOUT A WARRANT, IF A SPECIFIC MATTER WAS CITED TO HIM BY THE
INSPECTOR, HE WOULD HAVE PERMITTED THE INSPECTION IN THAT REGARD.  ON
THE CONTRARY, FRANK'S DENIAL OF ACCESS WAS DESCRIBED AS BASED ON "A
RARELY VOICED DENIAL OF ANY OFFICIAL JUSTIFICATION FOR SEEKING TO ENTER
HIS HOME."  359 U.S., AT 366.  THERE THEN WAS A SPECIFIC DEMAND FOR
INSPECTION, MET BY A REFUSAL ON THE BROADEST OF GROUNDS.  HERE WE HAVE
THE MOST GENERAL OF DEMANDS, SUPPORTED BY NO PARTICULARIZED
JUSTIFICATION, EITHER DIRECTED AT THE CONDITIONS IN TAYLOR'S COTTAGE,
OR IN TERMS OF SOME OVER-ALL SYSTEMATIC PLAN WHICH WOULD INCLUDE IT.
THIS IS MET NOT BY AN ATTITUDE OF DEFIANCE, BUT BY A REQUEST BY THE
HOUSEHOLDER THAT A SPECIFIC AUTHORIZATION BE FURNISHED HIM.  NOT A
SEARCH WARRANT, BUT A CRIMINAL COMPLAINT IS THE UPSHOT.  WE WOULD
GROSSLY TONE DOWN THE PROTECTIONS AFFORDED THE HOUSEHOLDER BY THE
CONSTITUTION WERE WE TO PUT AN AUTHORITATIVE SANCTION ON THE JUDGMENT
THAT CONDEMNS HIS REFUSAL. 

MUCH ARGUMENT IS MADE OF THE NEED OF THE AUTHORITIES TO PERFORM
INSPECTIONS ON A "SPOT CHECK" OR ON AN AREA-BY-AREA BASIS.  THE
JUDGMENT BELOW CANNOT BE SAID TO PRESENT THIS PROBLEM, BECAUSE THERE
WAS NO EVIDENCE THAT THIS IN FACT WAS WHAT WAS BEING DONE; THAT THE
INSPECTORS IN FACT WERE PROCEEDING ACCORDING TO A REASONABLE PLAN OF
ONE SORT OR ANOTHER.  FOR ALL THAT APPEARS HERE, THE INSPECTORS COULD
HAVE BEEN ACTING IN ACCORDANCE WITH NO PARTICULAR PLAN OF SPOT CHECKS
OR AREA-BY-AREA SEARCHES WHICH COULD BE JUSTIFIED AS "REASONABLE," AND
WHICH WOULD GIVE PROBABLE CAUSE FOR ENTRY; (FN5) THEIR ACTION COULD
HAVE BEEN BASED ON CAPRICE OR ON PERSONAL OR POLITICAL SPITE.  IT
HARDLY CONTRADICTS EXPERIENCE TO SUGGEST THAT THE PRACTICAL
ADMINISTRATION OF LOCAL GOVERNMENT IN THIS COUNTRY CAN BE INFECTED WITH
SUCH MOTIVES.  BUILDING INSPECTION ORDINANCES CAN LEND THEMSELVES
READILY TO SUCH ABUSE.  WE DO NOT AT ALL SAY THIS TO BE THE CASE HERE,
AND TAYLOR HAS MADE NO PROOF OF IT, TO BE SURE; BUT THAT SIMPLY POINTS
UP THE ISSUE.  THE INSPECTORS HAVE NOT BEEN REQUIRED TO MAKE ANY
JUSTIFICATION FOR THEIR ENTRY.  THE JUDGMENT BELOW UPHOLDS THE CHARGES
AS SUFFICIENT, BASED ON A DEMAND FOR ENTRY WITHOUT ANY SUCH
JUSTIFICATION.    BUT IF WE WERE TO ASSUME THAT THE INSPECTORS WERE
PROCEEDING ACCORDING TO A PLAN, AND EVEN IF EVIDENCE OF THE PLAN WERE
PUT IN AT THE TRIAL, WE THINK THAT THE RESULT SHOULD BE THE SAME.  THE
TIME TO MAKE SUCH JUSTIFICATION IS NOT IN THE CRIMINAL PROCEEDING,
AFTER THE HOUSEHOLDER HAS ACTED AT HIS PERIL IN DENYING ACCESS.  THE
TIME TO MAKE IT IS IN ADVANCE OF PROSECUTION, AND THE PLACE IS BEFORE A
MAGISTRATE EMPOWERED TO ISSUE WARRANTS, WHICH WILL PUT THE SEAL OF
LEGITIMACY - THE SEAL THE CONSTITUTION SPECIFICALLY PROVIDES FOR - ON
THE DEMAND OF THE INSPECTOR, IF INDEED IT IS A REASONABLE ONE.  SUCH A
WARRANT NEED NOT BE SOUGHT EXCEPT WHERE THE HOUSEHOLDER DOES NOT
CONSENT.  THIS IS PRECISELY THE PROCEDURE FOLLOWED BY ENGLAND IN THIS
PARTICULAR AREA, SEE PUBLIC HEALTH ACT, 1936, 26 GEO. 5, & 1 EDW.  8,
C. 49, SEC. 287(2); (FN6) AND NO COMPLAINT IS HEARD THAT THIS
STULTIFIES ENFORCEMENT THERE OF THE REGULATION OF THE PUBLIC HEALTH AND
SAFETY.  CERTAINLY WITH THIS PROCEDURE AVAILABLE - THE PROCEDURE OF
ANTECEDENT JUSTIFICATION BEFORE A MAGISTRATE THAT IS CENTRAL TO THE
FOURTH AMENDMENT, SEE MCDONALD V. UNITED STATES, 335 U.S. 451, 455-456
THERE IS NO NEED TO BE SATISFIED WITH LESSER STANDARDS IN THIS AREA. 
CF. DEAN MILK CO. V. MADISON, 340 U.S. 349.  THE PUBLIC INTEREST IN THE
CLEANLINESS AND ADEQUACY OF THE DWELLINGS OF THE PEOPLE IS GREAT.  SO
TOO IS THE PUBLIC INTEREST THAT THE TOOLS OF COUNTERFEITING AND THE
PARAPHERNALIA OF THE ILLICIT NARCOTICS TRAFFIC NOT REMAIN ACTIVE.  ON
AN ADEQUATE AND APPROPRIATE SHOWING IN PARTICULAR CASES, THE PRIVACY OF
THE HOME MUST BOW BEFORE THESE INTERESTS OF THE PUBLIC.  BUT NONE OF
THESE INTERESTS PROVIDES AN OPEN SESAME TO THOSE WHO ENFORCE THEM.  THE
FOURTH AMENDMENT'S PROCEDURE ESTABLISHES THE WAY IN WHICH THESE GENERAL
PUBLIC INTERESTS ARE TO BE BROUGHT INTO SPECIFIC FOCUS TO REQUIRE THE
INDIVIDUAL HOUSEHOLDER TO OPEN HIS DOOR. 

IT HAS BEEN SUGGESTED THAT IF THE FOURTH AMENDMENT'S REQUIREMENT OF A
SEARCH WARRANT IS ACKNOWLEDGED TO BE APPLICABLE HERE, THE RESULT WILL
BE A GENERAL WATERING-DOWN OF THE STANDARDS FOR THE ISSUANCE OF SEARCH
WARRANTS.  FOR IT IS SAID THAT SINCE IT IS AGREED THAT A WARRANT FOR A
HEALTH AND SAFETY INSPECTION CAN BE MADE ON A SHOWING QUITE DIFFERENT
IN KIND FROM THAT WHICH WOULD, FOR EXAMPLE, JUSTIFY A SEARCH FOR
NARCOTICS, MAGISTRATES WILL BECOME LAX GENERALLY IN ISSUING WARRANTS. 
THE SUGGESTED PREVENTIVE FOR THIS LAXITY IS A DRASTIC ONE:  DISPENSE
WITH WARRANTS FOR THESE INSPECTIONS.  WE CANNOT BELIEVE THAT HERE IT IS
NECESSARY THUS TO BURN DOWN THE HOUSE TO ROAST THE PIG.  TO BE SURE,
THE SHOWING THAT WILL JUSTIFY A HOUSING INSPECTION TO CHECK COMPLIANCE
WITH HEALTH AND SAFETY REGULATIONS IS DIFFERENT FROM THAT WHICH WOULD
JUSTIFY A SEARCH FOR NARCOTICS.  BUT WE SHOULD NOT ASSUME THAT
MAGISTRATES WILL BECOME SO OBTUSE AS NOT TO BEAR THIS IN MIND.  SEARCH
WARRANTS TO LOOK FOR COUNTERFEITING EQUIPMENT, FOR EXAMPLE, ARE NOT
ISSUED ON A SHOWING OF PROBABLE CAUSE TO BELIEVE THE EXISTENCE OF AN
UNTAXED STILL.  TO EACH SPECIFIC WARRANT, AN APPROPRIATE SPECIFIC
SHOWING IS NECESSARY.  THIS CAN SCARCELY BE THOUGHT TO TAX THE
CAPACITIES OF THE MAGISTRATE.  AND OF COURSE WHERE THE RULE PREVAILS
THAT EVIDENCE OBTAINED IN VIOLATION OF THE CONSTITUTIONAL GUARANTEE IS
NOT ADMISSIBLE, THERE WILL BE JUDICIAL REVIEW OF THE MAGISTRATE'S
ACTION IF THE FRUITS OF A SEARCH ARE TENDERED IN EVIDENCE.  (FN7) 

APART FROM THE VERY SIGNIFICANT FACTUAL DISTINCTIONS PRESENTED BY
THIS CASE FROM THE FRANK CASE, THERE IS ANOTHER REASON WHY WE WOULD
REVERSE THE JUDGMENT HERE.  IT HAS NOW BECOME CLEAR THAT THE FRANK
DECISION MAY HAVE TURNED IN SUBSTANTIAL PART ON THE POSITING OF A
DISTINCTION BETWEEN THE AFFIRMATIVE GUARANTY OF PRIVACY AGAINST
OFFICIAL INCURSION RAISED BY THE FOURTH AMENDMENT AGAINST FEDERAL
ACTION, AND THAT RAISED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AGAINST STATE ACTION.  THE CONCURRING OPINION OF ONE OF THE MAJORITY IN
THAT SHARPLY DIVIDED DECISION INDICATES SOME CONCERN IN THAT RESPECT. 
359 U.S., AT 373.  AFTER THE GREATEST CONSIDERATION, THIS COURT IN WOLF
V. COLORADO, 338 U.S. 25, 27-28, DECLARED:  "THE SECURITY OF ONE'S
PRIVACY AGAINST ARBITRARY INTRUSION BY THE POLICE - WHICH IS AT THE
CORE OF THE FOURTH AMENDMENT - IS BASIC TO A FREE SOCIETY.  IT IS
THEREFORE IMPLICIT IN 'THE CONCEPT OF ORDERED LIBERTY' AND AS SUCH
ENFORCEABLE AGAINST THE STATES THROUGH THE DUE PROCESS CLAUSE."  IT IS
NOW CLEAR THAT PART OF THE MAJORITY OF THE COURT IN THE FRANK CASE DOES
NOT SUBSCRIBE TO THE CLEAR IMPORT OF THAT STATEMENT.  ELKINS V. UNITED
STATES, ANTE, PP. 206, 237-240 (DISSENTING OPINION).  BUT THE WOLF
STATEMENT CONTINUES TO BE THE RULING DOCTRINE IN THIS COURT.  ELKINS V.
UNITED STATES, ANTE, P. 206.  THE GUARANTEES ARE OF THE SAME DIMENSION,
MATTERS OF ENFORCEMENT, SUCH AS THE EXCLUSIONARY RULE, ASIDE. 

THE CLASSIC DEBATE ON THE IMPORT OF THE FOURTEENTH AMENDMENT'S DUE
PROCESS CLAUSE AS TO THE APPLICABILITY OF THE BILL OF RIGHTS TO THE
STATES, WE SUBMIT, DOES NOT EVEN INVOLVE THE THEORY THAT THE MATTER IS
ONE FOR THE JUDGES TO SOLVE ON AN AD HOC BASIS, ACCORDING TO THEIR
OVERALL REACTION TO PARTICULAR CASES.  SOME OF US HAVE EXPRESSED THE
CONVICTION THAT THE PREFERABLE VIEW OF THE FOURTEENTH AMENDMENT IS THAT
IT MAKES THE GUARANTEES OF THE BILL OF RIGHTS GENERALLY ENFORCEABLE
AGAINST THE STATES.  SEE ADAMSON V. CALIFORNIA, 332 U.S. 46, 68
(DISSENTING OPINION).  BUT TO THEM, AS WELL AS TO US, WHO HAVE NEITHER
ACCEPTED NOR REJECTED THAT VIEW, IT IS CLEAR THAT THE CELEBRATED
PASSAGE OF JUSTICE CARDOZO'S OPINION IN PALKO V. CONNECTICUT, 302 U.S.
319, 323-325, CAN HAVE NO COMMON GROUND WITH THE VIEW OF THE WOLF CASE
THAT A MINORITY OF THE COURT NOW EXPOUNDS.  AND SEE ADAMSON V.
CALIFORNIA, SUPRA, AT 85-86, 89 (DISSENTING OPINION).  FOR THE PALKO
OPINION REFERS TO "A PROCESS OF ABSORPTION," 302 U.S., AT 326, OF
SPECIFIC BILL OF RIGHTS GUARANTEES IN THE FOURTEENTH AMENDMENT'S
STANDARD.  (FN8)  IT IS NOT A LICENSE TO THE JUDICIARY TO ADMINISTER A
WATERED-DOWN, SUBJECTIVE VERSION OF THE INDIVIDUAL GUARANTEES OF THE
BILL OF RIGHTS WHEN STATE CASES COME BEFORE US.  TO BE SURE, THE
CONTRARY VIEW HAS BEEN URGED, OCCASIONALLY WITH SUCCESS; THE RIGHT TO
COUNSEL WAS PUT ON AN AD HOC BASIS, BETTS V. BRADY, 316 U.S. 455,
DESPITE WHAT SEEMS THE CLEAR IMPLICATION TO THE CONTRARY IN PALKO, 302
U.S., AT 324; AND RECENTLY THE SURPRISING SUGGESTION HAS EVEN BEEN MADE
(NEVER BY THE COURT) THAT THE FREEDOM OF SPEECH AND OF THE PRESS MAY BE
SECURED BY THE FOURTEENTH AMENDMENT WITH LESS VIGOR THAN IT IS SECURED
BY THE FIRST.  SEE BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 288
(DISSENTING OPINION); ROTH V. UNITED STATES, 354 U.S. 476, 505-506
(SEPARATE OPINION); SMITH V. CALIFORNIA, 361 U.S. 147, 169 (SEPARATE
OPINION).  (FN9) 

IN ELKINS TODAY WE HAVE REJECTED SUCH A VIEW OF THE AFFIRMATIVE
GUARANTEES OF THE FOURTH AMENDMENT.  THE OPINION OF THE COURT IN FRANK
IS VERY LIKELY A PRODUCT OF SUCH A REJECTED APPROACH.  FOR THAT REASON,
EVEN IF IT WERE ON ALL FOURS WITH THE PRESENT CASE, IT SHOULD NOT BE
FOLLOWED, AND THE JUDGMENT BELOW SHOULD BE REVERSED. 

FN1  EXPRESSIONS OF VIEWS, DESPITE EQUAL DIVISIONS, HAVE BEEN MADE
BEFORE WHERE THERE WAS A QUESTION WHETHER ONE FACT SITUATION WAS TO BE
DISTINGUISHED FROM A RELATED ONE ON WHICH A MAJORITY OF THE COURT HAD
RENDERED AN OPINION.  RALEY V. OHIO, 360 U.S. 423, 440-442, 442-445. 
THE QUESTION WHETHER THIS CASE IS TO BE DISTINGUISHED FROM FRANK
PRESENTS AN ANALOGY TO THIS. 

FN2  THE REFERENCE IS APPARENTLY TO THE ORDINANCE AROUND WHICH THIS
CASE TURNS.  SECTION 806-30(A) OF THE DAYTON, OHIO, CODE OF GENERAL
ORDINANCES PROVIDES: 

"THE HOUSING INSPECTOR IS HEREBY AUTHORIZED AND DIRECTED TO MAKE
INSPECTIONS TO DETERMINE THE CONDITION OF DWELLINGS, DWELLING UNITS,
ROOMING HOUSES, ROOMING UNITS AND PREMISES LOCATED WITHIN THE CITY OF
DAYTON IN ORDER THAT HE MAY PERFORM HIS DUTY OF SAFEGUARDING THE HEALTH
AND SAFETY OF THE OCCUPANTS OF DWELLINGS AND OF THE GENERAL PUBLIC. 
FOR THE PURPOSE OF MAKING SUCH INSPECTIONS AND UPON SHOWING APPROPRIATE
IDENTIFICATION THE HOUSING INSPECTOR IS HEREBY AUTHORIZED TO ENTER,
EXAMINE AND SURVEY AT ANY REASONABLE HOUR ALL DWELLINGS, DWELLING
UNITS, ROOMING HOUSES, ROOMING UNITS, AND PREMISES.  THE OWNER OR
OCCUPANT OF EVERY DWELLING, DWELLING UNIT, ROOMING HOUSE, AND ROOMING
UNIT OR THE PERSON IN CHARGE THEREOF, SHALL GIVE THE HOUSING INSPECTOR
FREE ACCESS TO SUCH DWELLING, DWELLING UNIT, ROOMING HOUSE OR ROOMING
UNIT AND ITS PREMISES AT ANY REASONABLE HOUR FOR THE PURPOSE OF SUCH
INSPECTION, EXAMINATION AND SURVEY." 

THIS COMMAND IS BACKED BY THE PENALTY THAT "ANY PERSON WHO SHALL
VIOLATE ANY PROVISION OF THIS ORDINANCE SHALL, UPON CONVICTION, BE
PUNISHED BY A FINE OF NOT LESS THAN TWENTY DOLLARS ($20.00) NOR MORE
THAN TWO HUNDRED DOLLARS ($200) OR BY IMPRISONMENT OF NOT LESS THAN TWO
(2) DAYS NOR MORE THAN THIRTY (30) DAYS, OR BOTH, AND EACH DAY OF
FAILURE TO COMPLY WITH ANY SUCH PROVISION SHALL CONSTITUTE A SEPARATE
VIOLATION."  SEC. 806-83. 

FN3  EVIDENTLY HABEAS CORPUS LIES IN OHIO TO TEST THE
CONSTITUTIONALITY OF THE ORDINANCE UNDER WHICH ONE IS BEING HELD
THROUGH CHARGES PENDING IN A COURT OF INFERIOR JURISDICTION, AS ALL THE
STATE COURTS PROCEEDED TO PASS ON THE MERITS OF THE CLAIMS OF THE
RELATOR EATON, APPELLANT HERE, THAT THE ORDINANCE UNDER WHICH THE
CHARGES WERE BROUGHT INFRINGED TAYLOR'S CONSTITUTIONAL RIGHTS. 
ACCORDINGLY WE MAY NOW REVIEW THAT DETERMINATION ON THE MERITS, THE
HABEAS CORPUS PROCEEDING, INDEPENDENT OF THE CRIMINAL PROSECUTION
ITSELF, HAVING PROCEEDED TO A FINAL JUDGMENT.  NEW YORK EX REL. BRYANT
V. ZIMMERMAN, 278 U.S. 63, 70. 

FN4  THOSE DESIRING TO MAKE THE INSPECTION DID NOT SO TESTIFY; AND
SUCH A PLANNED BLANKET CHECK, OR ITS NATURE, IS HARDLY INFERABLE FROM
TAYLOR'S STATEMENT THAT "THEY HAD BEEN GOING UP AND DOWN THERE, DOOR-TO
DOOR, LOOKING THROUGH EVERYBODY'S HOUSES"; HIS STATEMENT BEING THE ONLY
THING RESEMBLING EVIDENCE ON THE POINT. 

FN5  SEE FRANK V. MARYLAND, SUPRA, AT 383 (DISSENTING OPINION). 

FN6  THE PROCEDURE CITED IS THAT PRESCRIBED BY STATUTE IN THE CASE OF
HEALTH INSPECTIONS UNDER THE PUBLIC HEALTH ACT.  THERE ARE OTHER
STATUTES PROVIDING FOR OTHER INSPECTIONS, AN ENGLISH COMMENTATOR POINTS
OUT, WHICH DO NOT CONTAIN THIS SAFEGUARD.  SEE WATERS, RIGHTS OF ENTRY
IN ADMINISTRATIVE OFFICERS, 27 U. OF CHI.  L. REV. 79, 85. 
ACCORDINGLY, "THE PRIVATE OCCUPIER IS FACED WITH A BEWILDERING NUMBER
OF PERSONS CLAIMING A VARIETY OF RIGHTS."  ID., AT 83.  THE AUTHOR IS
IN FAVOR OF THE PUBLIC HEALTH ACT PROCEDURE, AND REGRETS THAT "THE
CONSISTENT APPLICATION TO GOOD WORKS IS YET LACKING."  "THE OBJECT
SHOULD BE THE CREATION OF WARRANT PROVISIONS IN A STATUTORY CODE OF
POWERS OF ENTRY, GUARANTEEING TO THE INDIVIDUAL THEREBY THE IMPARTIAL,
IF RARELY INVOKED, JUDGMENT BY MAGISTRATES OF THE FAIRNESS AND LEGALITY
OF ANY ATTEMPTED ENTRY."  ID., AT 93. 

FN7  SEE WEEKS V. UNITED STATES, 232 U.S. 383. 

FN8  "WE REACH A DIFFERENT PLANE OF SOCIAL AND MORAL VALUES WHEN WE
PASS TO THE PRIVILEGES AND IMMUNITIES THAT HAVE BEEN TAKEN OVER FROM
THE EARLIER ARTICLES OF THE FEDERAL BILL OF RIGHTS AND BROUGHT WITHIN
THE FOURTEENTH AMENDMENT BY A PROCESS OF ABSORPTION.  THESE IN THEIR
ORIGIN WERE EFFECTIVE AGAINST THE FEDERAL GOVERNMENT ALONE.  IF THE
FOURTEENTH AMENDMENT HAS ABSORBED THEM, THE PROCESS OF ABSORPTION HAS
HAD ITS SOURCE IN THE BELIEF THAT NEITHER LIBERTY NOR JUSTICE WOULD
EXIST IF THEY WERE SACRIFICED  ...  .  THIS IS TRUE, FOR ILLUSTRATION,
OF FREEDOM OF THOUGHT, AND SPEECH.  OF THAT FREEDOM ONE MAY SAY THAT IT
IS THE MATRIX, THE INDISPENSABLE CONDITION, OF NEARLY EVERY OTHER FORM
OF FREEDOM  ...  ."  302 U.S., AT 326-327. 

FN9  CONTRAST THE STATEMENT IN PALKO, 302 U.S., AT 324.  FOR THE
LATEST OF MANY REITERATIONS OF THE SETTLED DOCTRINE THAT THE FIRST
AMENDMENT'S GUARANTEES OBTAIN AGAINST THE STATES, SEE SMITH V.
CALIFORNIA, 361 U.S. 147, 149-150; BATES V. LITTLE ROCK, 361 U.S. 516,
522-523.  SEE STAUB V. BAXLEY, 355 U.S. 313, 321.  FOR A COLLECTION OF
MANY OF THE CASES TO THIS EFFECT, SEE SPEISER V. RANDALL, 357 U.S. 513,
530 (CONCURRING OPINION). 
..END :



















MCCRARY V. INDIANA 364 U.S. 277 


NO. 417, MISC.  DECIDED JUNE 27, 1960 - 239 IND. 707, 158 N.E.2D 292,
VACATED AND REMANDED. 


PETITIONER ALLEGES HE WAS DENIED EQUAL PROTECTION BECAUSE AS A PAUPER
HE WAS UNABLE TO FURNISH AND PAY FOR TRANSCRIPT OF TRIAL REQUIRED BY
COURT RULES TO BE FILED WITH APPEAL IN POST-CONVICTION PROCEEDING IN
STATE COURT, AND ALSO THAT HE WAS DENIED SERVICES OF PUBLIC DEFENDER. 
HELD: CERTIORARI GRANTED; ORDER OF DISMISSAL VACATED; AND CASE REMANDED
FOR FURTHER CONSIDERATION. 

MCCRARY V. INDIANA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE WRIT OF
CERTIORARI ARE GRANTED.  PETITIONER'S ATTEMPTED APPEAL TO THE SUPREME
COURT OF INDIANA FROM A DENIAL OF RELIEF IN A POST-CONVICTION CORAM
NOBIS PROCEEDING WAS DISMISSED BECAUSE OF HIS FAILURE TO COMPLY WITH
RULES OF THAT COURT, REQUIRING, INTER ALIA, THE FILING OF A TRANSCRIPT
OF THE TRIAL PROCEEDINGS.  HE ALLEGES THAT THE DISMISSAL DENIED HIM THE
EQUAL PROTECTION OF THE LAWS BECAUSE HE WAS AND IS UNABLE TO PAY FOR
THE PREPARATION OF SUCH A TRANSCRIPT, SEE GRIFFIN V. ILLINOIS, 351 U.S.
12, AND THAT ALTHOUGH HE ATTEMPTED TO AVAIL HIMSELF OF THE SERVICES OF
THE INDIANA PUBLIC DEFENDER, WHO IS EMPOWERED TO SECURE THE PREPARATION
OF SUCH A TRANSCRIPT IN PAUPERS' CASES, SEE BURNS' INDIANA STATS. (1956
REPL.), SEC. 13-1401 ET SEQ., THAT OFFICER DECLINED TO ASSIST HIM.  THE
RECORD BEFORE US DOES NOT DISCLOSE WHETHER THESE ALLEGATIONS WERE MADE
TO, AND PASSED ON BY, THE INDIANA SUPREME COURT IN LIGHT OF GRIFFIN V.
ILLINOIS, SUPRA.  ACCORDINGLY WE VACATE THE ORDER OF DISMISSAL AND
REMAND THE CASE TO IT FOR FURTHER CONSIDERATION OF THE APPEAL. 
..END :

















UNITED RAILROAD WORKERS DIVISION OF TRANSPORT WORKERS UNION OF AMERICA
V. BALTIMORE & OHIO RAILROAD CO. 364 U.S. 278 


NO. 535.  DECIDED JUNE 27, 1960 - CERTIORARI GRANTED; JUDGMENT VACATED
AND CASE REMANDED - REPORTED BELOW:  271 F.2D 87. 


UNITED RAILROAD WORKERS DIVISION OF TRANSPORT WORKERS UNION OF AMERICA
ET AL. V. BALTIMORE & OHIO RAILROAD CO. ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED FOR RECONSIDERATION IN LIGHT OF
BROTHERHOOD OF LOCOMOTIVE ENGINEERS ET AL. V. MISSOURI-KANSAS-TEXAS R.
CO., 363 U.S. 528. 
..END :












MCGRATH V. RHAY 364 U.S. 279 


NO. 720.  DECIDED JUNE 27, 1960 - REPORTED BELOW:  54 WASH. 2D 508, 342
P.2D 607. 


JUDGMENT VACATED AND CASE REMANDED FOR DETERMINATION OF SPECIFIED
QUESTIONS OF STATE LAW. 

MCGRATH ET AL. V. RHAY, SUPERINTENDENT, WASHINGTON STATE PENITENTIARY. 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE RESPONDENT'S MOTION TO DISMISS THE WRIT OF CERTIORARI IS DENIED. 
THE JUDGMENT OF THE SUPREME COURT OF WASHINGTON IS VACATED AND THE CASE
IS REMANDED FOR DETERMINATION OF THE FOLLOWING QUESTIONS OF WASHINGTON
LAW NOW INVOLVED IN THE CASE:  (1) WHETHER THE CASE IS MOOT AS A HABEAS
CORPUS PROCEEDING; AND (2) IF IT IS, WHETHER, TO AVOID MOOTNESS, IT CAN
PROPERLY BE TREATED AS AN APPLICATION FOR SOME OTHER FORM OF
APPROPRIATE RELIEF. 
..END :








LUCKENBACH STEAMSHIP CO. V. UNITED STATES 364 U.S. 280 


NO. 848.  DECIDED JUNE 27, 1960 - REPORTED BELOW:  179 F. SUPP. 605. 


JUDGMENT WITH RESPECT TO SUSPENSION OF RATES VACATED AND CASE
REMANDED; JUDGMENT AFFIRMED WITH RESPECT TO ANTITRUST QUESTION. 

LUCKENBACH STEAMSHIP CO., INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

PER CURIAM. 

THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE, SO FAR AS IT RELATES TO THE SUSPENSION OF RATES PHASE OF THE
DISPUTE, IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS THE CAUSE AS MOOT.  UNITED STATES V. AMARILLO
BORGER EXPRESS, 352 U.S. 1028; ATCHISON, T.&S.F.R. CO. V. DIXIE
CARRIERS, 355 U.S. 179.  WITH RESPECT TO THE ANTITRUST PHASE OF THE
DISPUTE, THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT ON THE HOLDING OF
GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439. 
..END :





LIVINGSTON V. UNITED STATES 364 U.S. 281 


NO. 895.  DECIDED JUNE 27, 1960 - 179 F. SUPP. 9, AFFIRMED. 


LIVINGSTON ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF SOUTH CAROLINA. 

PER CURIAM. 

THE MOTION TO SUBSTITUTE HAROLD MURPH AND ROBERT C. WASSON IN THE
PLACE OF FRANCIS M. PICKNEY AND JAMES W. CRAIN AS PARTIES APPELLANT IS
GRANTED.  THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS
AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION PROBABLE
JURISDICTION SHOULD BE NOTED. 
..END :












EUZIERE V. UNITED STATES 364 U.S. 282 


NO. 119, MISC.  DECIDED JUNE 27, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED AND CASE REMANDED - REPORTED BELOW:  266 F.2D 88. 


EUZIERE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF ELKINS V. UNITED STATES,
ANTE, P. 206, DECIDED THIS DAY. 

MR. JUSTICE FRANKFURTER DISSENTS ON THE BASIS OF HIS DISSENTING
OPINION IN RIOS V. UNITED STATES, ANTE, P. 233, AND ELKINS V. UNITED
STATES, ANTE, P. 233, DECIDED THIS DAY. 
..END :










CAMARA V. UNITED STATES 364 U.S. 283 


NO. 605, MISC.  DECIDED JUNE 27, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  271 F.2D 787. 


CAMARA V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF ELKINS V. UNITED STATES,
ANTE, P. 206, DECIDED THIS DAY. 

MR. JUSTICE FRANKFURTER WOULD REVERSE ON THE BASIS OF HIS DISSENTING
OPINION IN RIOS V. UNITED STATES, ANTE, P. 233, AND ELKINS V. UNITED
STATES, ANTE, P. 233, DECIDED THIS DAY. 
..END :










CUTTING V. BANK OF ALASKA 364 U.S. 283 


NO. 925, MISC.  DECIDED JUNE 27, 1960 - APPEAL DISMISSED AND MOTIONS FOR
OTHER RELIEF DENIED. 


CUTTING V. BANK OF ALASKA (OR NATIONAL BANK OF ALASKA) ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  THE MOTIONS FOR OTHER RELIEF ARE DENIED. 
..END :

















DEITLE V. UNITED STATES 364 U.S. 284 


NO. 759, MISC.  DECIDED JUNE 27, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  274 F.2D 117. 


DEITLE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED TO THE DISTRICT COURT FOR A HEARING AT WHICH PETITIONER
SHOULD BE PRESENT. 
..END :














DEGROAT V. NEW YORK 364 U.S. 284 


NO. 956, MISC.  DECIDED JUNE 27, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  8 APP. DIV. 2D 664, 185 N.Y.S.2D 775. 


DE GROAT V. NEW YORK. 

APPEAL FROM THE COUNTY COURT OF ULSTER COUNTY, NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















HANNAH V. LARCHE 363 U.S. 420 


NO. 549.  ARGUED JANUARY 18-19, 1960.  - DECIDED JUNE 20, 1960.* - 177
F. SUPP. 816, REVERSED. 

*TOGETHER WITH NO. 550, HANNAH ET AL. V. SLAWSON ET AL., ON PETITION
FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT. 


THE CIVIL RIGHTS ACT OF 1957 CREATED IN THE EXECUTIVE BRANCH OF THE
GOVERNMENT A COMMISSION ON CIVIL RIGHTS TO INVESTIGATE WRITTEN, SWORN
ALLEGATIONS THAT PERSONS HAVE BEEN DISCRIMINATORILY DEPRIVED OF THEIR
RIGHT TO VOTE ON ACCOUNT OF THEIR COLOR, RACE, RELIGION OR NATIONAL
ORIGIN, TO STUDY AND COLLECT INFORMATION "CONCERNING LEGAL DEVELOPMENTS
CONSTITUTING A DENIAL OF EQUAL PROTECTION OF THE LAWS," AND TO REPORT
TO THE PRESIDENT AND CONGRESS.  THE COMMISSION IS AUTHORIZED TO
SUBPOENA WITNESSES AND DOCUMENTS AND TO CONDUCT HEARINGS.  THE ACT
PRESCRIBES CERTAIN RULES OF PROCEDURE; BUT NOTHING IN THE ACT REQUIRES
THE COMMISSION TO AFFORD PERSONS ACCUSED OF DISCRIMINATION THE RIGHT TO
BE APPRISED AS TO THE SPECIFIC CHARGES AGAINST THEM OR AS TO THE
IDENTITY OF THEIR ACCUSERS, OR THE RIGHT TO CONFRONT AND CROSS-EXAMINE
WITNESSES APPEARING AT COMMISSION HEARINGS; AND THE COMMISSION
PRESCRIBED SUPPLEMENTARY RULES OF PROCEDURE WHICH DENY SUCH RIGHTS IN
HEARINGS CONDUCTED BY IT.  HELD: 

1.  IN THE LIGHT OF THE LEGISLATIVE HISTORY OF THE ACT, THE
COMMISSION WAS AUTHORIZED BY CONGRESS TO ADOPT SUCH RULES OF
PROCEDURE.  PP. 430-439. 

2.  SINCE THE COMMISSION MAKES NO ADJUDICATIONS BUT ACTS SOLELY AS AN
INVESTIGATIVE AND FACT-FINDING AGENCY, THESE RULES OF PROCEDURE DO NOT
VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  MORGAN V.
UNITED STATES, 304 U.S. 1; JOINT ANTI-FASCIST REFUGEE COMMITTEE V.
MCGRATH, 341 U.S. 123; GREENE V. MCELROY, 360 U.S. 474, DISTINGUISHED. 
PP. 440-452. 

3.  SUCH RULES OF PROCEDURE DO NOT VIOLATE THE SIXTH AMENDMENT, SINCE
THAT AMENDMENT IS SPECIFICALLY LIMITED TO "CRIMINAL PROSECUTIONS," AND
THE PROCEEDINGS OF THE COMMISSION DO NOT FALL IN THAT CATEGORY.  P.
440, N. 16. 

4.  THE CIVIL RIGHTS ACT OF 1957 IS APPROPRIATE LEGISLATION UNDER THE
FIFTEENTH AMENDMENT.  P. 452. 

5.  SECTION 7 OF THE ADMINISTRATIVE PROCEDURE ACT IS NOT APPLICABLE
TO HEARINGS CONDUCTED BY THIS COMMISSION.  PP. 452-453. 

HANNAH ET AL. V. LARCHE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF LOUISIANA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE THE VALIDITY OF CERTAIN RULES OF PROCEDURE
ADOPTED BY THE COMMISSION ON CIVIL RIGHTS, WHICH WAS ESTABLISHED BY
CONGRESS IN 1957.  (FN1)  CIVIL RIGHTS ACT OF 1957, 71 STAT. 634, 42
U.S.C. SECS. 1975-1975E.  THEY ARISE OUT OF THE COMMISSION'S
INVESTIGATION OF ALLEGED NEGRO VOTING DEPRIVATIONS IN THE STATE OF
LOUISIANA.  THE APPELLEES IN NO. 549 ARE REGISTRARS OF VOTERS IN THE
STATE OF LOUISIANA, AND THE RESPONDENTS IN NO. 550 ARE PRIVATE CITIZENS
OF LOUISIANA.  (FN2) AFTER HAVING BEEN SUMMONED TO APPEAR BEFORE A
HEARING WHICH THE COMMISSION PROPOSED TO CONDUCT IN SHREVEPORT,
LOUISIANA, THESE REGISTRARS AND PRIVATE CITIZENS REQUESTED THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA TO ENJOIN
THE COMMISSION FROM HOLDING ITS ANTICIPATED HEARING.  IT WAS ALLEGED,
AMONG OTHER THINGS, THAT THE COMMISSION'S RULES OF PROCEDURE GOVERNING
THE CONDUCT OF ITS INVESTIGATIONS WERE UNCONSTITUTIONAL.  THE SPECIFIC
RULES CHALLENGED ARE THOSE WHICH PROVIDE THAT THE IDENTITY OF PERSONS
SUBMITTING COMPLAINTS TO THE COMMISSION NEED NOT BE DISCLOSED, AND THAT
THOSE SUMMONED TO TESTIFY BEFORE THE COMMISSION, INCLUDING PERSONS
AGAINST WHOM COMPLAINTS HAVE BEEN FILED, MAY NOT CROSS-EXAMINE OTHER
WITNESSES CALLED BY THE COMMISSION.  THE DISTRICT COURT HELD THAT THE
COMMISSION WAS NOT AUTHORIZED TO ADOPT THE RULES OF PROCEDURE HERE IN
QUESTION, AND THEREFORE ISSUED AN INJUNCTION WHICH PROHIBITS THE
COMMISSION FROM HOLDING ANY HEARINGS IN THE WESTERN DISTRICT OF
LOUISIANA AS LONG AS THE CHALLENGED PROCEDURES REMAIN IN FORCE.  THE
COMMISSION REQUESTED THIS COURT TO REVIEW THE DISTRICT COURT'S
DECISION.  (FN3)  WE GRANTED THE COMMISSION'S MOTION TO ADVANCE THE
CASES, AND ORAL ARGUMENT WAS ACCORDINGLY SCHEDULED ON THE JURISDICTION
ON APPEAL IN NO. 549, ON THE PETITION FOR CERTIORARI IN NO. 550, AND ON
THE MERITS OF BOTH CASES. 

HAVING HEARD ORAL ARGUMENT AS SCHEDULED, WE NOW TAKE JURISDICTION IN
NO. 549 AND GRANT CERTIORARI IN NO. 550.  THE SPECIFIC QUESTIONS WHICH
WE MUST DECIDE ARE (1) WHETHER THE COMMISSION WAS AUTHORIZED BY
CONGRESS TO ADOPT THE RULES OF PROCEDURE CHALLENGED BY THE RESPONDENTS,
AND (2) IF SO, WHETHER THOSE PROCEDURES VIOLATE THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT. 

A DESCRIPTION OF THE EVENTS LEADING UP TO THIS LITIGATION IS
NECESSARY NOT ONLY TO PLACE THE LEGAL QUESTIONS IN THEIR PROPER FACTUAL
CONTEXT, BUT ALSO TO INDICATE THE SIGNIFICANCE OF THE COMMISSION'S
PROPOSED SHREVEPORT HEARING.  DURING THE MONTHS PRIOR TO ITS DECISION
TO CONVENE THE HEARING, THE COMMISSION HAD RECEIVED SOME SIXTY-SEVEN
COMPLAINTS FROM INDIVIDUAL NEGROES WHO ALLEGED THAT THEY HAD BEEN
DISCRIMINATORILY DEPRIVED OF THEIR RIGHT TO VOTE.  BASED UPON THESE
COMPLAINTS, AND PURSUANT TO ITS STATUTORY MANDATE TO "INVESTIGATE
ALLEGATIONS IN WRITING UNDER OATH OR AFFIRMATION THAT CERTAIN CITIZENS
OF THE UNITED STATES ARE BEING DEPRIVED OF THEIR RIGHT TO VOTE AND HAVE
THAT VOTE COUNTED BY REASON OF THEIR COLOR, RACE, RELIGION, OR NATIONAL
ORIGIN," (FN4) THE COMMISSION BEGAN ITS INVESTIGATION INTO THE
LOUISIANA VOTING SITUATION BY MAKING SEVERAL EX PARTE ATTEMPTS TO
ACQUIRE INFORMATION.  THUS, IN MARCH 1959, A MEMBER OF THE COMMISSION'S
STAFF INTERVIEWED THE VOTING REGISTRARS OF CLAIBORNE, CADDO, AND
WEBSTER PARISHES, BUT OBTAINED LITTLE RELEVANT INFORMATION.  DURING ONE
OF THESE INTERVIEWS THE STAFF MEMBER IS ALLEGED TO HAVE INFORMED MRS.
LANNIE LINTON, THE REGISTRAR OF CLAIBORNE PARISH, THAT THE COMMISSION
HAD ON FILE FOUR SWORN STATEMENTS CHARGING HER WITH DEPRIVING NEGROES
OF THEIR VOTING RIGHTS SOLELY BECAUSE OF THEIR RACE.  SUBSEQUENT TO
THIS INTERVIEW, MR. W.M. SHAW, MRS. LINTON'S PERSONAL ATTORNEY, WROTE A
LETTER TO MR. GORDON M. TIFFANY, THE STAFF DIRECTOR OF THE COMMISSION,
IN WHICH IT WAS ASSERTED THAT MRS. LINTON KNEW THE SWORN COMPLAINTS
LODGED AGAINST HER TO BE FALSE.  THE LETTER ALSO INDICATED THAT MRS.
LINTON WISHED TO PREFER PERJURY CHARGES AGAINST THE AFFIANTS, AND MR.
SHAW THEREFORE DEMANDED THAT THE COMMISSION FORWARD TO HIM COPIES OF
THE AFFIDAVITS SO THAT A PROPER PRESENTMENT COULD BE MADE TO THE GRAND
JURY.  ON APRIL 14, 1959, MR. TIFFANY REPLIED TO MR. SHAW'S LETTER AND
INDICATED THAT THE COMMISSION HAD DENIED THE REQUEST FOR COPIES OF THE
SWORN AFFIDAVITS.  MR. SHAW WAS ALSO INFORMED OF THE FOLLOWING OFFICIAL
STATEMENT ADOPTED BY THE COMMISSION: 

"THE COMMISSION FROM ITS FIRST MEETING FORWARD, HAVING CONSIDERED ALL
COMPLAINTS SUBMITTED TO IT AS CONFIDENTIAL BECAUSE SUCH CONFIDENTIALITY
IS ESSENTIAL IN CARRYING OUT THE STATUTORY DUTIES OF THE COMMISSION,
THE STAFF DIRECTOR IS HEREBY INSTRUCTED NOT TO DISCLOSE THE NAMES OF
COMPLAINANTS OR OTHER INFORMATION CONTAINED IN COMPLAINTS TO ANYONE
EXCEPT MEMBERS OF THE COMMISSION AND MEMBERS OF THE STAFF ASSIGNED TO
PROCESS, STUDY, OR INVESTIGATE SUCH COMPLAINTS." 

A COPY OF MR. TIFFANY'S LETTER WAS SENT TO MR. JACK P.F. GREMILLION,
THE ATTORNEY GENERAL OF LOUISIANA, WHO HAD PREVIOUSLY INFORMED THE
COMMISSION THAT UNDER LOUISIANA LAW THE ATTORNEY GENERAL IS THE LEGAL
ADVISER FOR ALL VOTING REGISTRARS IN ANY HEARING OR INVESTIGATION
BEFORE A FEDERAL COMMISSION. 

ANOTHER ATTEMPT TO OBTAIN INFORMATION OCCURRED ON MAY 13, 1959, WHEN
MR. TIFFANY, UPON COMMISSION AUTHORIZATION, SENT A LIST OF 315 WRITTEN
INTERROGATORIES TO MR. GREMILLION.  THESE INTERROGATORIES REQUESTED
VERY DETAILED AND SPECIFIC INFORMATION, AND WERE TO BE ANSWERED BY THE
VOTING REGISTRARS OF NINETEEN LOUISIANA PARISHES.  ALTHOUGH MR.
GREMILLION AND THE GOVERNOR OF LOUISIANA HAD PREVIOUSLY ASSENTED TO THE
IDEA OF WRITTEN INTERROGATORIES, ON MAY 28, 1959, MR. GREMILLION SENT A
LETTER TO MR. TIFFANY INDICATING THAT THE VOTING REGISTRARS REFUSED TO
ANSWER THE INTERROGATORIES.  THE REASONS GIVEN FOR THE REFUSAL WERE
THAT MANY OF THE QUESTIONS SEEMED UNRELATED TO THE FUNCTIONS OF VOTING
REGISTRARS, THAT THE QUESTIONS WERE NEITHER ACCOMPANIED BY SPECIFIC
COMPLAINTS NOR RELATED TO SPECIFIC COMPLAINTS, AND THAT THE TIME AND
RESEARCH REQUIRED TO ANSWER THE QUESTIONS PLACED AN UNREASONABLE BURDEN
UPON THE VOTING REGISTRARS. 

IN RESPONSE TO THIS REFUSAL, ON MAY 29, 1959, MR. TIFFANY SENT A
TELEGRAM TO MR. GREMILLION, INFORMING THE LATTER THAT THE
INTERROGATORIES WERE BASED UPON SPECIFIC ALLEGATIONS RECEIVED BY THE
COMMISSION, AND REAFFIRMING THE COMMISSION'S POSITION THAT THE IDENTITY
OF SPECIFIC COMPLAINANTS WOULD NOT BE DISCLOSED.  MR. TIFFANY'S LETTER
CONTAINED A FURTHER REQUEST THAT THE INTERROGATORIES BE ANSWERED AND
SENT TO THE COMMISSION BY JUNE 5, 1959.  ON JUNE 2, 1959, MR.
GREMILLION WROTE A LETTER TO MR. TIFFANY REITERATING THE REGISTRARS'
REFUSAL, AND AGAIN REQUESTING THAT THE NAMES OF COMPLAINANTS BE
DISCLOSED. 

FINALLY, AS A RESULT OF THIS EXCHANGE OF CORRESPONDENCE, AND BECAUSE
THE COMMISSION'S ATTEMPTS TO OBTAIN INFORMATION EX PARTE HAD BEEN
FRUSTRATED, THE COMMISSION, ACTING PURSUANT TO SECTION 105(F) OF THE
CIVIL RIGHTS ACT OF 1957, (FN5) DECIDED TO HOLD THE SHREVEPORT HEARING
COMMENCING ON JULY 13, 1959. 

NOTICE OF THE SCHEDULED HEARING WAS SENT TO MR. GREMILLION, AND
BETWEEN JUNE 29 AND JULY 6, SUBPOENAS DUCES TECUM WERE SERVED ON THE
RESPONDENTS IN NO. 549, ORDERING THEM TO APPEAR AT THE HEARING AND TO
BRING WITH THEM VARIOUS VOTING AND REGISTRATION RECORDS WITHIN THEIR
CUSTODY AND CONTROL.  SUBPOENAS WERE ALSO SERVED UPON THE RESPONDENTS
IN NO. 550.  THESE PRIVATE CITIZENS WERE APPARENTLY SUMMONED TO EXPLAIN
THEIR ACTIVITIES WITH REGARD TO ALLEGED DEPRIVATIONS OF NEGRO VOTING
RIGHTS.  (FN6) 

ON JULY 8, 1959, MR. TIFFANY WROTE TO MR. GREMILLION, ENCLOSING
COPIES OF THE CIVIL RIGHTS ACT AND OF THE COMMISSION'S RULES OF
PROCEDURE.  (FN7)  MR. GREMILLION'S ATTENTION WAS ALSO DRAWN TO SECTION
102(H) OF THE CIVIL RIGHTS ACT, WHICH PERMITS WITNESSES TO SUBMIT,
SUBJECT TO THE DISCRETION OF THE COMMISSION, BRIEF AND PERTINENT SWORN
STATEMENTS FOR INCLUSION IN THE RECORD.  (FN8) 

TWO DAYS LATER, ON JULY 10, 1959, THE RESPONDENTS IN NO. 549 AND NO.
550 FILED TWO SEPARATE COMPLAINTS IN THE DISTRICT COURT FOR THE WESTERN
DISTRICT OF LOUISIANA.  BOTH COMPLAINTS ALLEGED THAT THE RESPONDENTS
WOULD SUFFER IRREPARABLE HARM BY VIRTUE OF THE COMMISSION'S REFUSAL TO
FURNISH THE NAMES OF PERSONS WHO HAD FILED ALLEGATIONS OF VOTING
DEPRIVATIONS, AS WELL AS THE CONTENTS OF THE ALLEGATIONS, AND BY ITS
FURTHER REFUSAL TO PERMIT THE RESPONDENTS TO CONFRONT AND CROSS-EXAMINE
THE PERSONS MAKING SUCH ALLEGATIONS.  IN ADDITION, BOTH COMPLAINTS
ALLEGED THAT THE COMMISSION'S REFUSALS NOT ONLY VIOLATED NUMEROUS
PROVISIONS OF THE FEDERAL CONSTITUTION, BUT ALSO CONSTITUTED "ULTRA
VIRES" ACTS NOT AUTHORIZED EITHER BY CONGRESS OR THE CHIEF EXECUTIVE. 
THE RESPONDENTS IN NO. 549 ALSO ALLEGED THAT THEY COULD NOT COMPLY WITH
THE SUBPOENAS DUCES TECUM BECAUSE LOUISIANA LAW PROHIBITED VOTING
REGISTRARS FROM REMOVING THEIR VOTING RECORDS EXCEPT "UPON AN ORDER OF
A COMPETENT COURT," AND BECAUSE THE COMMISSION WAS NOT SUCH A "COURT." 
FINALLY, THE COMPLAINT IN NO. 549 ALLEGED THAT THE CIVIL RIGHTS ACT WAS
UNCONSTITUTIONAL BECAUSE IT DID NOT CONSTITUTE "APPROPRIATE LEGISLATION
WITHIN THE MEANING OF SECTION (2) OF THE XV AMENDMENT." 

BOTH COMPLAINTS SOUGHT A TEMPORARY RESTRAINING ORDER AND A PERMANENT
INJUNCTION PROHIBITING THE MEMBERS OF THE COMMISSION (A) FROM
COMPELLING THE "TESTIMONY FROM OR THE PRODUCTION OF ANY RECORDS" BY THE
RESPONDENTS UNTIL COPIES OF THE SWORN CHARGES, TOGETHER WITH THE NAMES
AND ADDRESSES OF THE PERSONS FILING SUCH CHARGES WERE GIVEN TO THE
RESPONDENTS; (FN9) (B) FROM "CONDUCTING ANY HEARING PURSUANT TO THE
RULES AND REGULATIONS ADOPTED BY" THE COMMISSION; AND (C) FROM
"CONSPIRING TOGETHER ...  OR WITH ANY OTHER PERSON  ...  TO DENY
COMPLAINANTS THEIR RIGHTS AND PRIVILEGES AS CITIZENS" OF LOUISIANA OR
THE UNITED STATES "OR TO DENY TO COMPLAINANTS THEIR RIGHT TO BE
CONFRONTED BY THEIR ACCUSERS, TO KNOW THE NATURE AND CHARACTER OF THE
CHARGES MADE AGAINST THEM," AND TO BE REPRESENTED BY COUNSEL.  THE
COMPLAINT IN NO. 549 ALSO SOUGHT A DECLARATORY JUDGMENT THAT THE CIVIL
RIGHTS ACT OF 1957 WAS UNCONSTITUTIONAL. 

ON THE DAY THAT THE COMPLAINTS WERE FILED, THE DISTRICT JUDGE HELD A
COMBINED HEARING ON THE PRAYERS FOR TEMPORARY RESTRAINING ORDERS.  ON
JULY 12, 1959, HE FOUND THAT THE RESPONDENTS WOULD SUFFER IRREPARABLE
HARM IF THE HEARINGS WERE HELD AS SCHEDULED, AND HE THEREFORE ISSUED
THE REQUESTED TEMPORARY RESTRAINING ORDERS AND RULES TO SHOW CAUSE WHY
A PRELIMINARY INJUNCTION SHOULD NOT BE GRANTED.  LARCHE V. HANNAH, 176
F. SUPP. 791.  THE ORDER PROHIBITED THE COMMISSION FROM HOLDING ANY
HEARINGS WHICH CONCERNED THE RESPONDENTS OR OTHERS SIMILARLY SITUATED
UNTIL A DETERMINATION WAS MADE ON THE MOTION FOR A PRELIMINARY
INJUNCTION. 

INASMUCH AS THE COMPLAINT IN NO. 549 ATTACKED THE CONSTITUTIONALITY
OF THE CIVIL RIGHTS ACT, A THREE-JUDGE COURT WAS CONVENED PURSUANT TO
28 U.S.C. SEC. 2282.  SINCE THE COMPLAINT IN NO. 550 DID NOT CHALLENGE
THE CONSTITUTIONALITY OF THE CIVIL RIGHTS ACT OF 1957, THAT CASE WAS
SCHEDULED TO BE HEARD BY A SINGLE DISTRICT JUDGE.  THAT DISTRICT JUDGE
WAS ALSO A MEMBER OF THE THREE-JUDGE PANEL IN NO. 549, AND A COMBINED
HEARING WAS THEREFORE HELD ON BOTH CASES ON AUGUST 7, 1959. 

ON OCTOBER 7, 1959, A DIVIDED THREE-JUDGE DISTRICT COURT FILED AN
OPINION IN NO. 549.  LARCHE V. HANNAH, 177 F. SUPP. 816.  THE COURT
HELD THAT THE CIVIL RIGHTS ACT OF 1957 WAS CONSTITUTIONAL SINCE IT
"VERY DEFINITELY CONSTITUTES APPROPRIATE LEGISLATION" AUTHORIZED BY THE
FOURTEENTH AND FIFTEENTH AMENDMENTS AND ARTICLE I, SECTION 2, OF THE
FEDERAL CONSTITUTION.  ID., AT 821.  THE COURT THEN HELD THAT SINCE THE
RESPONDENTS' ALLEGATIONS WITH REGARD TO APPRISAL, CONFRONTATION, AND
CROSS-EXAMINATION RAISED A "SERIOUS CONSTITUTIONAL ISSUE," THIS COURT'S
DECISION IN GREENE V. MCELROY, 360 U.S. 474, REQUIRED A PRELIMINARY
DETERMINATION AS TO WHETHER CONGRESS SPECIFICALLY AUTHORIZED THE
COMMISSION "TO ADOPT RULES FOR INVESTIGATIONS  ...  WHICH WOULD DEPRIVE
PARTIES INVESTIGATED OF THEIR RIGHTS OF CONFRONTATION AND CROSS
EXAMINATION AND THEIR RIGHT TO BE APPRISED OF THE CHARGES AGAINST
THEM."  177 F. SUPP., AT 822.  THE COURT FOUND THAT CONGRESS HAD NOT SO
AUTHORIZED THE COMMISSION, AND AN INJUNCTION WAS THEREFORE ISSUED.  IN
DECIDING THE CASE ON THE ISSUE OF AUTHORIZATION, THE COURT NEVER
REACHED THE "SERIOUS CONSTITUTIONAL ISSUE" RAISED BY THE RESPONDENTS'
ALLEGATIONS.  (FN10)  THE INJUNCTION PROHIBITS THE COMMISSION FROM
HOLDING ANY HEARING IN THE WESTERN DISTRICT OF LOUISIANA WHEREIN THE
REGISTRARS, "ACCUSED OF DEPRIVING OTHERS OF THE RIGHT TO VOTE, WOULD BE
DENIED THE RIGHT OF APPRISAL, CONFRONTATION, AND CROSS EXAMINATION." 
(FN11)  THE SINGLE DISTRICT JUDGE RENDERED A DECISION IN NO. 550
INCORPORATING BY REFERENCE THE OPINION OF THE THREE-JUDGE DISTRICT
COURT, AND AN INJUNCTION, IDENTICAL IN SUBSTANCE TO THAT ENTERED IN NO.
549, WAS ISSUED.                                                    I. 

WE HELD LAST TERM IN GREENE V. MCELROY, SUPRA, THAT WHEN ACTION TAKEN
BY AN INFERIOR GOVERNMENTAL AGENCY WAS ACCOMPLISHED BY PROCEDURES WHICH
RAISE SERIOUS CONSTITUTIONAL QUESTIONS, AN INITIAL INQUIRY WILL BE MADE
TO DETERMINE WHETHER OR NOT "THE PRESIDENT OR CONGRESS, WITHIN THEIR
RESPECTIVE CONSTITUTIONAL POWERS, SPECIFICALLY HAS DECIDED THAT THE
IMPOSED PROCEDURES ARE NECESSARY AND WARRANTED AND HAS AUTHORIZED THEIR
USE."  ID., AT 507.  THE CONSIDERATIONS WHICH PROMPTED US IN GREENE TO
ANALYZE THE QUESTION OF AUTHORIZATION BEFORE REACHING THE
CONSTITUTIONAL ISSUES PRESENTED ARE NO LESS PERTINENT IN THIS CASE. 
OBVIOUSLY, IF THE CIVIL RIGHTS COMMISSION WAS NOT AUTHORIZED TO ADOPT
THE PROCEDURES COMPLAINED OF BY THE RESPONDENTS, THE CASE COULD BE
DISPOSED OF WITHOUT A PREMATURE DETERMINATION OF SERIOUS CONSTITUTIONAL
QUESTIONS.  SEE VITARELLI V. SEATON, 359 U.S. 535; KENT V. DULLES, 357
U.S. 116; WATKINS V. UNITED STATES, 354 U.S. 178; PETERS V. HOBBY, 349
U.S. 331. 

WE THEREFORE CONSIDER FIRST THE QUESTION OF AUTHORIZATION.  AS
INDICATED ABOVE, THE COMMISSION SPECIFICALLY REFUSED TO DISCLOSE TO THE
RESPONDENTS THE IDENTITY OF PERSONS WHO HAD SUBMITTED SWORN COMPLAINTS
TO THE COMMISSION AND THE SPECIFIC CHARGES CONTAINED IN THOSE
COMPLAINTS.  MOREOVER, THE RESPONDENTS WERE INFORMED BY THE COMMISSION
THAT THEY WOULD NOT BE PERMITTED TO CROSS-EXAMINE ANY WITNESSES AT THE
HEARING.  THE RESPONDENTS CONTEND, AND THE COURT BELOW HELD, THAT
CONGRESS DID NOT AUTHORIZE THE ADOPTION OF PROCEDURAL RULES WHICH WOULD
DEPRIVE THOSE BEING INVESTIGATED BY THE COMMISSION OF THE RIGHTS TO
APPRISAL, CONFRONTATION, AND CROSS-EXAMINATION.  THE COURT'S HOLDING IS
BEST SUMMARIZED BY THE FOLLOWING LANGUAGE FROM ITS OPINION: 

"WE FIND NOTHING IN THE ACT WHICH EXPRESSLY AUTHORIZES OR PERMITS THE
COMMISSION'S REFUSAL TO INFORM PERSONS, UNDER INVESTIGATION FOR
CRIMINAL CONDUCT, OF THE NATURE, CAUSE AND SOURCE OF THE ACCUSATIONS
AGAINST THEM, AND THERE IS NOTHING IN THE ACT AUTHORIZING THE
COMMISSION TO DEPRIVE THESE PERSONS OF THE RIGHT OF CONFRONTATION AND
CROSS-EXAMINATION."  177 F. SUPP., AT 822. 

AFTER THOROUGHLY ANALYZING THE RULES OF PROCEDURE CONTAINED IN THE
CIVIL RIGHTS ACT OF 1957 AND THE LEGISLATIVE HISTORY WHICH LED TO THE
ADOPTION OF THAT ACT, WE ARE OF THE OPINION THAT THE COURT BELOW ERRED
IN ITS CONCLUSION AND THAT CONGRESS DID AUTHORIZE THE COMMISSION TO
ADOPT THE PROCEDURES HERE IN QUESTION. 

IT COULD NOT BE SAID THAT CONGRESS IGNORED THE PROCEDURES WHICH THE
COMMISSION WAS TO FOLLOW IN CONDUCTING ITS HEARINGS.  SECTION 102 OF
THE CIVIL RIGHTS ACT OF 1957 LISTS A NUMBER OF PROCEDURAL RIGHTS
INTENDED TO SAFEGUARD WITNESSES FROM POTENTIAL ABUSES.  BRIEFLY
SUMMARIZED, THE RELEVANT SUBDIVISIONS OF SECTION 102 PROVIDE THAT THE
CHAIRMAN SHALL MAKE AN OPENING STATEMENT AS TO THE SUBJECT OF THE
HEARING; THAT A COPY OF THE COMMISSION'S RULES SHALL BE MADE AVAILABLE
TO WITNESSES; THAT WITNESSES "MAY BE ACCOMPANIED BY THEIR OWN COUNSEL
FOR THE PURPOSE OF ADVISING THEM CONCERNING THEIR CONSTITUTIONAL
RIGHTS"; THAT POTENTIALLY DEFAMATORY, DEGRADING, OR INCRIMINATING
TESTIMONY SHALL BE RECEIVED IN EXECUTIVE SESSION, AND THAT ANY PERSON
DEFAMED, DEGRADED, OR INCRIMINATED BY SUCH TESTIMONY SHALL HAVE AN
OPPORTUNITY TO APPEAR VOLUNTARILY AS A WITNESS AND TO REQUEST THE
COMMISSION TO SUBPOENA ADDITIONAL WITNESSES; THAT TESTIMONY TAKEN IN
EXECUTIVE SESSION SHALL BE RELEASED ONLY UPON THE CONSENT OF THE
COMMISSION; AND THAT WITNESSES MAY SUBMIT BRIEF AND PERTINENT SWORN
STATEMENTS IN WRITING FOR INCLUSION IN THE RECORD.  (FN12) 

THE ABSENCE OF ANY REFERENCE TO APPRISAL, CONFRONTATION, AND CROSS
EXAMINATION, IN ADDITION TO THE FACT THAT COUNSEL'S ROLE IS
SPECIFICALLY LIMITED TO ADVISING WITNESSES OF THEIR CONSTITUTIONAL
RIGHTS, CREATES A PRESUMPTION THAT CONGRESS DID NOT INTEND WITNESSES
APPEARING BEFORE THE COMMISSION TO HAVE THE RIGHTS CLAIMED BY
RESPONDENTS.  THIS INITIAL PRESUMPTION IS STRENGTHENED BEYOND ANY
REASONABLE DOUBT BY AN INVESTIGATION OF THE LEGISLATIVE HISTORY OF THE
ACT. 

THE COMPLETE STORY OF THE 1957 ACT BEGINS WITH THE 1956 HOUSE CIVIL
RIGHTS BILL, H.R. 627.  THAT BILL WAS REPORTED OUT OF THE HOUSE
JUDICIARY COMMITTEE WITHOUT ANY REFERENCE TO THE PROCEDURES TO BE USED
BY THE COMMISSION IN CONDUCTING ITS HEARINGS.  H.R. REP. NO. 2187, 84TH
CONG., 2D SESS.  DURING THE FLOOR DEBATE, REPRESENTATIVE DIES OF TEXAS
INTRODUCED EXTENSIVE AMENDMENTS DESIGNED TO REGULATE THE PROCEDURE OF
COMMISSION HEARINGS.  102 CONG. REC. 13542.  THOSE AMENDMENTS WOULD
HAVE GUARANTEED TO WITNESSES APPEARING BEFORE THE COMMISSION ALL OF THE
RIGHTS CLAIMED BY THE RESPONDENTS IN THESE CASES.  THE AMENDMENTS
PROVIDED, IN PERTINENT PART, THAT A PERSON WHO MIGHT BE ADVERSELY
AFFECTED BY THE TESTIMONY OF ANOTHER "SHALL BE FULLY ADVISED BY THE
COMMISSION AS TO THE MATTERS INTO WHICH THE COMMISSION PROPOSES TO
INQUIRE AND THE ADVERSE MATERIAL WHICH IS PROPOSED TO BE PRESENTED";
THAT A PERSON ADVERSELY AFFECTED BY EVIDENCE OR TESTIMONY GIVEN AT A
PUBLIC HEARING COULD "APPEAR AND TESTIFY OR FILE A SWORN STATEMENT IN
HIS OWN BEHALF"; THAT SUCH A PERSON COULD ALSO "HAVE THE ADVERSE
WITNESS RECALLED" WITHIN A STATED TIME; AND THAT HE OR HIS COUNSEL
COULD CROSS-EXAMINE ADVERSE WITNESSES.  (FN13) 

THE BILL, AS FINALLY PASSED BY THE HOUSE, CONTAINED ALL OF THE
AMENDMENTS PROPOSED BY REPRESENTATIVE DIES.  102 CONG. REC. 13998
13999.  HOWEVER, BEFORE FURTHER ACTION COULD BE TAKEN, THE BILL DIED IN
THE SENATE.  ALTHOUGH MANY PROPOSALS RELATING TO CIVIL RIGHTS WERE
INTRODUCED IN THE 1957 SESSION OF CONGRESS, TWO BILLS BECAME THE
PROMINENT CONTENDERS FOR SUPPORT.  ONE WAS S. 83, A BILL INTRODUCED BY
SENATOR DIRKSEN CONTAINING THE SAME PROCEDURAL PROVISIONS THAT THE
AMENDED HOUSE BILL IN 1956 HAD CONTAINED.  THE OTHER BILL, H.R. 6127,
WAS INTRODUCED BY REPRESENTATIVE CELLER, CHAIRMAN OF THE HOUSE
JUDICIARY COMMITTEE, AND THIS BILL INCORPORATED THE SO-CALLED HOUSE
"FAIR PLAY" RULES AS THE PROCEDURES WHICH SHOULD GOVERN THE CONDUCT OF
COMMISSION HEARINGS.  (FN14) AFTER EXTENSIVE DEBATE AND HEARINGS, H.R.
6127 WAS FINALLY PASSED BY BOTH HOUSES OF CONGRESS, AND THE HOUSE "FAIR
PLAY" RULES, WHICH MAKE NO PROVISION FOR ADVANCE NOTICE, CONFRONTATION,
OR CROSS-EXAMINATION, WERE ADOPTED IN PREFERENCE TO THE MORE PROTECTIVE
RULES SUGGESTED IN S. 83.  (FN15) 

THE LEGISLATIVE BACKGROUND OF THE CIVIL RIGHTS ACT NOT ONLY PROVIDES
EVIDENCE OF CONGRESSIONAL AUTHORIZATION, BUT IT ALSO DISTINGUISHES
THESE CASES FROM GREENE V. MCELROY, SUPRA, UPON WHICH THE COURT BELOW
RELIED SO HEAVILY.  IN GREENE THERE WAS NO EXPRESS AUTHORIZATION BY
CONGRESS OR THE PRESIDENT FOR THE DEPARTMENT OF DEFENSE TO ADOPT THE
TYPE OF SECURITY CLEARANCE PROGRAM THERE INVOLVED.  NOR WAS THERE ANY
LEGISLATIVE HISTORY OR EXECUTIVE DIRECTIVE INDICATING THAT THE
SECRETARY OF DEFENSE WAS AUTHORIZED TO ESTABLISH A SECURITY CLEARANCE
PROGRAM WHICH COULD DEPRIVE A PERSON OF HIS GOVERNMENT EMPLOYMENT ON
THE BASIS OF SECRET AND UNDISCLOSED INFORMATION.  THEREFORE, WE
CONCLUDED IN GREENE THAT BECAUSE OF THE SERIOUS CONSTITUTIONAL PROBLEMS
PRESENTED, MERE ACQUIESCENCE BY THE PRESIDENT OR THE CONGRESS WOULD NOT
BE SUFFICIENT TO CONSTITUTE AUTHORIZATION FOR THE SECURITY CLEARANCE
PROCEDURES ADOPTED BY THE SECRETARY OF DEFENSE.  THE FACTS OF THIS CASE
PRESENT A SHARP CONTRAST TO THOSE BEFORE THE COURT IN GREENE.  HERE, WE
HAVE SUBSTANTIALLY MORE THAN THE MERE ACQUIESCENCE UPON WHICH THE
GOVERNMENT RELIED IN GREENE.  THERE WAS A CONSCIOUS, INTENTIONAL
SELECTION BY CONGRESS OF ONE BILL, PROVIDING FOR NONE OF THE PROCEDURES
DEMANDED BY RESPONDENTS, OVER ANOTHER BILL, WHICH PROVIDED FOR ALL OF
THOSE PROCEDURES.  WE HAVE NO DOUBT THAT CONGRESS' CONSIDERATION AND
REJECTION OF THE PROCEDURES HERE AT ISSUE CONSTITUTED AN AUTHORIZATION
TO THE COMMISSION TO CONDUCT ITS HEARINGS ACCORDING TO THE RULES OF
PROCEDURE IT HAS ADOPTED, AND TO DENY TO WITNESSES THE RIGHTS OF
APPRISAL, CONFRONTATION, AND CROSS-EXAMINATION. 

     II. 

THE EXISTENCE OF AUTHORIZATION INEVITABLY REQUIRES US TO DETERMINE
WHETHER THE COMMISSION'S RULES OF PROCEDURE ARE CONSISTENT WITH THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  (FN16) 

SINCE THE REQUIREMENTS OF DUE PROCESS FREQUENTLY VARY WITH THE TYPE
OF PROCEEDING INVOLVED, E.G., COMPARE OPP COTTON MILLS, INC. V.
ADMINISTRATOR, 312 U.S. 126, 152, WITH INTERSTATE COMMERCE COMM'N V.
LOUISVILLE & N.R. CO., 227 U.S. 88, 91, WE THINK IT IS NECESSARY AT THE
OUTSET TO ASCERTAIN BOTH THE NATURE AND FUNCTION OF THIS COMMISSION. 
PERFORMED BY THE COMMISSION.  THOSE DUTIES CONSIST OF (1) INVESTIGATING
WRITTEN, SWORN ALLEGATIONS THAT ANYONE HAS BEEN DISCRIMINATORILY
DEPRIVED OF HIS RIGHT TO VOTE; (2) STUDYING AND COLLECTING INFORMATION
"CONCERNING LEGAL DEVELOPMENTS CONSTITUTING A DENIAL OF EQUAL
PROTECTION OF THE LAWS UNDER THE CONSTITUTION"; AND (3) REPORTING TO
THE PRESIDENT AND CONGRESS ON ITS ACTIVITIES, FINDINGS, AND
RECOMMENDATIONS.  (FN17)  AS IS APPARENT FROM THIS BRIEF SKETCH OF THE
STATUTORY DUTIES IMPOSED UPON THE COMMISSION, ITS FUNCTION IS PURELY
INVESTIGATIVE AND FACT-FINDING.   IT DOES NOT ADJUDICATE.  IT DOES NOT
HOLD TRIALS OR DETERMINE ANYONE'S CIVIL OR CRIMINAL LIABILITY.   IT
DOES NOT ISSUE ORDERS.  NOR DOES IT INDICT, PUNISH, OR IMPOSE ANY LEGAL
SANCTIONS.  IT DOES NOT MAKE DETERMINATIONS DEPRIVING ANYONE OF HIS
LIFE, LIBERTY, OR PROPERTY.  IN SHORT, THE COMMISSION DOES NOT AND
CANNOT TAKE ANY AFFIRMATIVE ACTION WHICH WILL AFFECT AN INDIVIDUAL'S
LEGAL RIGHTS.  THE ONLY PURPOSE OF ITS EXISTENCE IS TO FIND FACTS WHICH
MAY SUBSEQUENTLY BE USED AS THE BASIS FOR LEGISLATIVE OR EXECUTIVE
ACTION. 

THE SPECIFIC CONSTITUTIONAL QUESTION, THEREFORE, IS WHETHER PERSONS
WHOSE CONDUCT IS UNDER INVESTIGATION BY A GOVERNMENTAL AGENCY OF THIS
NATURE ARE ENTITLED, BY VIRTUE OF THE DUE PROCESS CLAUSE, TO KNOW THE
SPECIFIC CHARGES THAT ARE BEING INVESTIGATED, AS WELL AS THE IDENTITY
OF THE COMPLAINANTS, (FN18) AND TO HAVE THE RIGHT TO CROSS-EXAMINE
THOSE COMPLAINANTS AND OTHER WITNESSES.  ALTHOUGH THESE PROCEDURES ARE
VERY DESIRABLE IN SOME SITUATIONS, FOR THE REASONS WHICH WE SHALL NOW
INDICATE, WE ARE OF THE OPINION THAT THEY ARE NOT CONSTITUTIONALLY
REQUIRED IN THE PROCEEDINGS OF THIS COMMISSION. 

"DUE PROCESS" IS AN ELUSIVE CONCEPT.  ITS EXACT BOUNDARIES ARE
UNDEFINABLE, AND ITS CONTENT VARIES ACCORDING TO SPECIFIC FACTUAL
CONTEXTS.  THUS, WHEN GOVERNMENTAL AGENCIES ADJUDICATE OR MAKE BINDING
DETERMINATIONS WHICH DIRECTLY AFFECT THE LEGAL RIGHTS OF INDIVIDUALS,
IT IS IMPERATIVE THAT THOSE AGENCIES USE THE PROCEDURES WHICH HAVE
TRADITIONALLY BEEN ASSOCIATED WITH THE JUDICIAL PROCESS.  ON THE OTHER
HAND, WHEN GOVERNMENTAL ACTION DOES NOT PARTAKE OF AN ADJUDICATION, AS
FOR EXAMPLE, WHEN A GENERAL FACT-FINDING INVESTIGATION IS BEING
CONDUCTED, IT IS NOT NECESSARY THAT THE FULL PANOPLY OF JUDICIAL
PROCEDURES BE USED.  THEREFORE, AS A GENERALIZATION, IT CAN BE SAID
THAT DUE PROCESS EMBODIES THE DIFFERING RULES OF FAIR PLAY, WHICH
THROUGH THE YEARS, HAVE BECOME ASSOCIATED WITH DIFFERING TYPES OF
PROCEEDINGS.  WHETHER THE CONSTITUTION REQUIRES THAT A PARTICULAR RIGHT
OBTAIN IN A SPECIFIC PROCEEDING DEPENDS UPON A COMPLEXITY OF FACTORS. 
THE NATURE OF THE ALLEGED RIGHT INVOLVED, THE NATURE OF THE PROCEEDING,
AND THE POSSIBLE BURDEN ON THAT PROCEEDING, ARE ALL CONSIDERATIONS
WHICH MUST BE TAKEN INTO ACCOUNT.  AN ANALYSIS OF THESE FACTORS
DEMONSTRATES WHY IT IS THAT THE PARTICULAR RIGHTS CLAIMED BY THE
RESPONDENTS NEED NOT BE CONFERRED UPON THOSE APPEARING BEFORE PURELY
INVESTIGATIVE AGENCIES, OF WHICH THE COMMISSION ON CIVIL RIGHTS IS
ONE. 

IT IS PROBABLY SUFFICIENT MERELY TO INDICATE THAT THE RIGHTS CLAIMED
BY RESPONDENTS ARE NORMALLY ASSOCIATED ONLY WITH ADJUDICATORY
PROCEEDINGS, AND THAT SINCE THE COMMISSION DOES NOT ADJUDICATE, IT NEED
NOT BE BOUND BY ADJUDICATORY PROCEDURES.  YET, THE RESPONDENTS CONTEND,
AND THE COURT BELOW IMPLIED, THAT SUCH PROCEDURES ARE REQUIRED SINCE
THE COMMISSION'S PROCEEDINGS MIGHT IRREPARABLY HARM THOSE BEING
INVESTIGATED BY SUBJECTING THEM TO PUBLIC OPPROBRIUM AND SCORN, THE
DISTINCT LIKELIHOOD OF LOSING THEIR JOBS, AND THE POSSIBILITY OF
CRIMINAL PROSECUTIONS.  THAT ANY OF THESE CONSEQUENCES WILL RESULT IS
PURELY CONJECTURAL.  THERE IS NOTHING IN THE RECORD TO INDICATE THAT
SUCH WILL BE THE CASE OR THAT PAST COMMISSION HEARINGS HAVE HAD ANY
HARMFUL EFFECTS UPON WITNESSES APPEARING BEFORE THE COMMISSION. 
HOWEVER, EVEN IF SUCH COLLATERAL CONSEQUENCES WERE TO FLOW FROM THE
COMMISSION'S INVESTIGATIONS, THEY WOULD NOT BE THE RESULT OF ANY
AFFIRMATIVE DETERMINATIONS MADE BY THE COMMISSION, AND THEY WOULD NOT
AFFECT THE LEGITIMACY OF THE COMMISSION'S INVESTIGATIVE FUNCTION. 
(FN19) 

ON THE OTHER HAND, THE INVESTIGATIVE PROCESS COULD BE COMPLETELY
DISRUPTED IF INVESTIGATIVE HEARINGS WERE TRANSFORMED INTO TRIAL-LIKE
PROCEEDINGS, AND IF PERSONS WHO MIGHT BE INDIRECTLY AFFECTED BY AN
INVESTIGATION WERE GIVEN AN ABSOLUTE RIGHT TO CROSS-EXAMINE EVERY
WITNESS CALLED TO TESTIFY.  FACT-FINDING AGENCIES WITHOUT ANY POWER TO
ADJUDICATE WOULD BE DIVERTED FROM THEIR LEGITIMATE DUTIES AND WOULD BE
PLAGUED BY THE INJECTION OF COLLATERAL ISSUES THAT WOULD MAKE THE
INVESTIGATION INTERMINABLE.  EVEN A PERSON NOT CALLED AS A WITNESS
COULD DEMAND THE RIGHT TO APPEAR AT THE HEARING, CROSS-EXAMINE ANY
WITNESS WHOSE TESTIMONY OR SWORN AFFIDAVIT ALLEGEDLY DEFAMED OR
INCRIMINATED HIM, AND CALL AN UNLIMITED NUMBER OF WITNESSES OF HIS OWN
SELECTION.  (FN20)  THIS TYPE OF PROCEEDING WOULD MAKE A SHAMBLES OF
THE INVESTIGATION AND STIFLE THE AGENCY IN ITS GATHERING OF FACTS. 

IN ADDITION TO THESE PERSUASIVE CONSIDERATIONS, WE THINK IT IS HIGHLY
SIGNIFICANT THAT THE COMMISSION'S PROCEDURES ARE NOT HISTORICALLY
FOREIGN TO OTHER FORMS OF INVESTIGATION UNDER OUR SYSTEM.  FAR FROM
BEING UNIQUE, THE RULES OF PROCEDURE ADOPTED BY THE COMMISSION ARE
SIMILAR TO THOSE WHICH, AS SHOWN BY THE APPENDIX TO THIS OPINION,
(FN21) HAVE TRADITIONALLY GOVERNED THE PROCEEDINGS OF THE VAST MAJORITY
OF GOVERNMENTAL INVESTIGATING AGENCIES.    A FREQUENTLY USED TYPE OF
INVESTIGATIVE AGENCY IS THE LEGISLATIVE COMMITTEE.  THE INVESTIGATIVE
FUNCTION OF SUCH COMMITTEES IS AS OLD AS THE REPUBLIC.  (FN22)  THE
VOLUMES WRITTEN ABOUT LEGISLATIVE INVESTIGATIONS HAVE PROLIFERATED
ALMOST AS RAPIDLY AS THE LEGISLATIVE COMMITTEES THEMSELVES, AND THE
COURTS HAVE ON MORE THAN ONE OCCASION BEEN CONFRONTED WITH THE LEGAL
PROBLEMS PRESENTED BY SUCH COMMITTEES.  (FN23)  THE PROCEDURES ADOPTED
BY LEGISLATIVE INVESTIGATING COMMITTEES HAVE VARIED OVER THE COURSE OF
YEARS.  YET, THE HISTORY OF THESE COMMITTEES CLEARLY DEMONSTRATES THAT
ONLY INFREQUENTLY HAVE WITNESSES APPEARING BEFORE CONGRESSIONAL
COMMITTEES BEEN AFFORDED THE PROCEDURAL RIGHTS NORMALLY ASSOCIATED WITH
AN ADJUDICATIVE PROCEEDING.  IN THE VAST MAJORITY OF INSTANCES,
CONGRESSIONAL COMMITTEES HAVE NOT GIVEN WITNESSES DETAILED NOTICE OR AN
OPPORTUNITY TO CONFRONT, CROSS-EXAMINE AND CALL OTHER WITNESSES. 
(FN24) 

THE HISTORY OF INVESTIGATIONS CONDUCTED BY THE EXECUTIVE BRANCH OF
THE GOVERNMENT IS ALSO MARKED BY A DECIDED ABSENCE OF THOSE PROCEDURES
HERE IN ISSUE.  (FN25)  THE BEST EXAMPLE IS PROVIDED BY THE
ADMINISTRATIVE REGULATORY AGENCIES.  ALTHOUGH THESE AGENCIES NORMALLY
MAKE DETERMINATIONS OF A QUASI-JUDICIAL NATURE, THEY ALSO FREQUENTLY
CONDUCT PURELY FACT-FINDING INVESTIGATIONS.  WHEN DOING THE FORMER,
THEY ARE GOVERNED BY THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, 5
U.S.C. SECS. 1001-1011, AND THE PARTIES TO THE ADJUDICATION ARE
ACCORDED THE TRADITIONAL SAFEGUARDS OF A TRIAL.  HOWEVER, WHEN THESE
AGENCIES ARE CONDUCTING NONADJUDICATIVE, FACT-FINDING INVESTIGATIONS,
RIGHTS SUCH AS APPRISAL, CONFRONTATION, AND CROSS-EXAMINATION GENERALLY
DO NOT OBTAIN. 

A TYPICAL AGENCY IS THE FEDERAL TRADE COMMISSION.  ITS RULES DRAW A
CLEAR DISTINCTION BETWEEN ADJUDICATIVE PROCEEDINGS AND INVESTIGATIVE
PROCEEDINGS.  16 CFR, 1958 SUPP., SEC. 1.34.  ALTHOUGH THE LATTER ARE
FREQUENTLY INITIATED BY COMPLAINTS FROM UNDISCLOSED INFORMANTS, ID.,
SECS. 1.11, 1.15, AND ALTHOUGH THE COMMISSION MAY USE THE INFORMATION
OBTAINED DURING INVESTIGATIONS TO INITIATE ADJUDICATIVE PROCEEDINGS,
ID., SEC. 1.42, NEVERTHELESS, PERSONS SUMMONED TO APPEAR BEFORE
INVESTIGATIVE PROCEEDINGS ARE ENTITLED ONLY TO A GENERAL NOTICE OF "THE
PURPOSE AND SCOPE OF THE INVESTIGATION," ID., SEC. 1.33, AND WHILE THEY
MAY HAVE THE ADVICE OF COUNSEL, "COUNSEL MAY NOT, AS A MATTER OF RIGHT,
OTHERWISE PARTICIPATE IN THE INVESTIGATION."  ID., SEC. 1.40.  THE
REASON FOR THESE RULES IS OBVIOUS.  THE FEDERAL TRADE COMMISSION COULD
NOT CONDUCT AN EFFICIENT INVESTIGATION IF PERSONS BEING INVESTIGATED
WERE PERMITTED TO CONVERT THE INVESTIGATION INTO A TRIAL.  WE HAVE
FOUND NO AUTHORITIES SUGGESTING THAT THE RULES GOVERNING FEDERAL TRADE
COMMISSION INVESTIGATIONS VIOLATE THE CONSTITUTION, AND THIS IS
UNDERSTANDABLE SINCE ANY PERSON INVESTIGATED BY THE FEDERAL TRADE
COMMISSION WILL BE ACCORDED ALL THE TRADITIONAL JUDICIAL SAFEGUARDS AT
A SUBSEQUENT ADJUDICATIVE PROCEEDING, JUST AS ANY PERSON INVESTIGATED
BY THE CIVIL RIGHTS COMMISSION WILL HAVE ALL OF THESE SAFEGUARDS,
SHOULD SOME TYPE OF ADJUDICATIVE PROCEEDING SUBSEQUENTLY BE
INSTITUTED. 

ANOTHER REGULATORY AGENCY WHICH DISTINGUISHES BETWEEN ADJUDICATIVE
AND INVESTIGATIVE PROCEEDINGS IS THE SECURITIES AND EXCHANGE
COMMISSION.  THIS COMMISSION CONDUCTS NUMEROUS INVESTIGATIONS, MANY OF
WHICH ARE INITIATED BY COMPLAINTS FROM PRIVATE PARTIES.  17 CFR SEC.
202.4.  ALTHOUGH THE COMMISSION'S RULES PROVIDE THAT PARTIES TO
ADJUDICATIVE PROCEEDINGS SHALL BE GIVEN DETAILED NOTICE OF THE MATTERS
TO BE DETERMINED, ID., 1959 SUPP., SEC. 201.3, AND A RIGHT TO CROSS
EXAMINE WITNESSES APPEARING AT THE HEARING, ID., SEC. 201.5, THOSE
PROVISIONS OF THE RULES ARE MADE SPECIFICALLY INAPPLICABLE TO
INVESTIGATIONS, ID., SEC. 201.20, (FN26) EVEN THOUGH THE COMMISSION IS
REQUIRED TO INITIATE CIVIL OR CRIMINAL PROCEEDINGS IF AN INVESTIGATION
DISCLOSES VIOLATIONS OF LAW.  (FN27) UNDOUBTEDLY, THE REASON FOR THIS
DISTINCTION IS TO PREVENT THE STERILIZATION OF INVESTIGATIONS BY
BURDENING THEM WITH TRIAL-LIKE PROCEDURES. 

ANOTHER TYPE OF EXECUTIVE AGENCY WHICH FREQUENTLY CONDUCTS
INVESTIGATIONS IS THE PRESIDENTIAL COMMISSION.  ALTHOUGH A SURVEY OF
THESE COMMISSIONS PRESENTS NO DEFINITE PATTERN OF PRACTICE, EACH
COMMISSION HAS GENERALLY BEEN PERMITTED TO ADOPT WHATEVER RULES OF
PROCEDURE SEEM APPROPRIATE TO IT, (FN28) AND IT IS CLEAR THAT MANY OF
THE MOST FAMOUS PRESIDENTIAL COMMISSIONS HAVE ADOPTED RULES SIMILAR TO
THOSE GOVERNING THE PROCEEDINGS OF THE CIVIL RIGHTS COMMISSION.  (FN29)
FOR EXAMPLE, THE ROBERTS COMMISSION ESTABLISHED IN 1941 TO ASCERTAIN
THE FACTS RELATING TO THE JAPANESE ATTACK UPON PEARL HARBOR, AND TO
DETERMINE WHETHER THE SUCCESS OF THE ATTACK RESULTED FROM ANY
DERELICTIONS OF DUTY ON THE PART OF AMERICAN MILITARY PERSONNEL, DID
NOT PERMIT ANY OF THE PARTIES INVOLVED IN THE INVESTIGATION TO CROSS
EXAMINE OTHER WITNESSES.  IN FACT, MANY OF THE PERSONS WHOSE CONDUCT
WAS BEING INVESTIGATED WERE NOT REPRESENTED BY COUNSEL AND WERE NOT
PRESENT DURING THE INTERROGATION OF OTHER WITNESSES.  HEARINGS BEFORE
THE JOINT COMMITTEE ON THE INVESTIGATION OF THE PEARL HARBOR ATTACK,
79TH CONG., 1ST SESS., PTS.  22-25. 

HAVING CONSIDERED THE PROCEDURES TRADITIONALLY FOLLOWED BY EXECUTIVE
AND LEGISLATIVE INVESTIGATING AGENCIES, WE THINK IT WOULD BE PROFITABLE
AT THIS POINT TO DISCUSS THE OLDEST AND, PERHAPS, THE BEST KNOWN OF ALL
INVESTIGATIVE BODIES, THE GRAND JURY.  IT HAS NEVER BEEN CONSIDERED
NECESSARY TO GRANT A WITNESS SUMMONED BEFORE THE GRAND JURY THE RIGHT
TO REFUSE TO TESTIFY MERELY BECAUSE HE DID NOT HAVE ACCESS TO THE
IDENTITY AND TESTIMONY OF PRIOR WITNESSES.  NOR HAS IT EVER BEEN
CONSIDERED ESSENTIAL THAT A PERSON BEING INVESTIGATED BY THE GRAND JURY
BE PERMITTED TO COME BEFORE THAT BODY AND CROSS-EXAMINE WITNESSES WHO
MAY HAVE ACCUSED HIM OF WRONGDOING.  UNDOUBTEDLY, THE PROCEDURAL RIGHTS
CLAIMED BY THE RESPONDENTS HAVE NOT BEEN EXTENDED TO GRAND JURY
HEARINGS BECAUSE OF THE DISRUPTIVE INFLUENCE THEIR INJECTION WOULD HAVE
ON THE PROCEEDINGS, AND ALSO BECAUSE THE GRAND JURY MERELY INVESTIGATES
AND REPORTS.  IT DOES NOT TRY. 

WE THINK IT IS FAIRLY CLEAR FROM THIS SURVEY OF VARIOUS PHASES OF
GOVERNMENTAL INVESTIGATION THAT WITNESSES APPEARING BEFORE
INVESTIGATING AGENCIES, WHETHER LEGISLATIVE, EXECUTIVE, OR JUDICIAL,
HAVE GENERALLY NOT BEEN ACCORDED THE RIGHTS OF APPRISAL, CONFRONTATION,
OR CROSS-EXAMINATION.  ALTHOUGH WE DO NOT SUGGEST THAT THE GRAND JURY
AND THE CONGRESSIONAL INVESTIGATING COMMITTEE ARE IDENTICAL IN ALL
RESPECTS TO THE CIVIL RIGHTS COMMISSION, (FN30) WE MENTION THEM, IN
ADDITION TO THE EXECUTIVE AGENCIES AND COMMISSIONS CREATED BY CONGRESS,
TO SHOW THAT THE RULES OF THIS COMMISSION ARE NOT ALIEN TO THOSE WHICH
HAVE HISTORICALLY GOVERNED THE PROCEDURE OF INVESTIGATIONS CONDUCTED BY
AGENCIES IN THE THREE MAJOR BRANCHES OF OUR GOVERNMENT.  THE LOGIC
BEHIND THIS HISTORICAL PRACTICE WAS RECOGNIZED AND DESCRIBED BY MR.
JUSTICE CARDOZO'S LANDMARK OPINION IN NORWEGIAN NITROGEN PRODUCTS CO.
V. UNITED STATES, 288 U.S. 294.  IN THAT CASE, THE COURT WAS CONCERNED
WITH THE TYPE OF HEARING THAT THE TARIFF COMMISSION WAS REQUIRED TO
HOLD WHEN CONDUCTING ITS INVESTIGATIONS.  SPECIFICALLY, THE COURT WAS
ASKED TO DECIDE WHETHER THE TARIFF ACT OF 1922, 42 STAT. 858, GAVE
WITNESSES APPEARING BEFORE THE COMMISSION THE RIGHT TO EXAMINE
CONFIDENTIAL INFORMATION IN THE COMMISSION FILES AND TO CROSS-EXAMINE
OTHER WITNESSES TESTIFYING AT COMMISSION HEARINGS.  ALTHOUGH THE COURT
DID NOT PHRASE ITS HOLDING IN TERMS OF DUE PROCESS, WE THINK THAT THE
FOLLOWING LANGUAGE FROM MR. JUSTICE CARDOZO'S OPINION IS SIGNIFICANT: 

"THE TARIFF COMMISSION ADVISES; THESE OTHERS ORDAIN.  THERE IS INDEED
THIS COMMON BOND THAT ALL ALIKE ARE INSTRUMENTS IN A GOVERNMENTAL
PROCESS WHICH ACCORDING TO THE ACCEPTED CLASSIFICATION IS LEGISLATIVE,
NOT JUDICIAL  ...  .  WHATEVER THE APPROPRIATE LABEL, THE KIND OF ORDER
THAT EMERGES FROM A HEARING BEFORE A BODY WITH POWER TO ORDAIN IS ONE
THAT IMPINGES UPON LEGAL RIGHTS IN A VERY DIFFERENT WAY FROM THE REPORT
OF A COMMISSION WHICH MERELY INVESTIGATES AND ADVISES.  THE
TRADITIONARY FORMS OF HEARING APPROPRIATE TO THE ONE BODY ARE UNKNOWN
TO THE OTHER.  WHAT ISSUES FROM THE TARIFF COMMISSION AS A REPORT AND
RECOMMENDATION TO THE PRESIDENT, MAY BE ACCEPTED, MODIFIED, OR
REJECTED.  IF IT HAPPENS TO BE ACCEPTED, IT DOES NOT BEAR FRUIT IN
ANYTHING THAT TRENCHES UPON LEGAL RIGHTS."  288 U.S., AT 318. 

AND IN REFERRING TO THE TRADITIONAL PRACTICE OF INVESTIGATING BODIES,
MR. JUSTICE CARDOZO HAD THIS TO SAY: 

"WITHIN THE MEANING OF THIS ACT THE 'HEARING' ASSURED TO ONE AFFECTED
BY A CHANGE OF DUTY DOES NOT INCLUDE A PRIVILEGE TO RANSACK THE RECORDS
OF THE COMMISSION, AND TO SUBJECT ITS CONFIDENTIAL AGENTS TO AN
EXAMINATION AS TO ALL THAT THEY HAVE LEARNED.  THERE WAS NO THOUGHT TO
REVOLUTIONIZE THE PRACTICE OF INVESTIGATING BODIES GENERALLY AND OF
THIS ONE IN PARTICULAR."  ID., AT 319. 

THUS, THE PURELY INVESTIGATIVE NATURE OF THE COMMISSION'S
PROCEEDINGS, THE BURDEN THAT THE CLAIMED RIGHTS WOULD PLACE UPON THOSE
PROCEEDINGS, AND THE TRADITIONAL PROCEDURE OF INVESTIGATING AGENCIES IN
GENERAL, LEADS US TO CONCLUDE THAT THE COMMISSION'S RULES OF PROCEDURE
COMPORT WITH THE REQUIREMENTS OF DUE PROCESS.  (FN31) 

NOR DO THE AUTHORITIES CITED BY RESPONDENTS SUPPORT THEIR POSITION. 
THEY RELY PRIMARILY UPON MORGAN V. UNITED STATES, 304 U.S. 1; JOINT
ANTI-FASCIST REFUGEE COMM. V. MCGRATH, 341 U.S. 123; AND GREENE V.
MCELROY, SUPRA.  THOSE CASES ARE ALL DISTINGUISHABLE IN THAT THE
GOVERNMENT AGENCY INVOLVED IN EACH WAS FOUND BY THE COURT TO HAVE MADE
DETERMINATIONS IN THE NATURE OF ADJUDICATIONS AFFECTING LEGAL RIGHTS. 
THUS, IN MORGAN, THE ACTION OF THE SECRETARY OF AGRICULTURE IN FIXING
THE MAXIMUM RATES TO BE CHARGED BY MARKET AGENCIES AT STOCKYARDS WAS
CHALLENGED.  IN VOIDING THE ORDER OF THE SECRETARY FOR HIS FAILURE TO
CONDUCT A TRIAL-LIKE HEARING, THE COURT REFERRED TO THE ADJUDICATORY
NATURE OF THE PROCEEDING: 

"CONGRESS, IN REQUIRING A 'FULL HEARING,' HAD REGARD TO JUDICIAL
STANDARDS, - NOT IN ANY TECHNICAL SENSE BUT WITH RESPECT TO THOSE
FUNDAMENTAL REQUIREMENTS OF FAIRNESS WHICH ARE OF THE ESSENCE OF DUE
PROCESS IN A PROCEEDING OF A JUDICIAL NATURE."  304 U.S., AT 19. 

LIKEWISE, IN JOINT ANTI-FASCIST REFUGEE COMM. V. MCGRATH, 341 U.S.
123, 140-141, THIS COURT HELD THAT THE ATTORNEY GENERAL'S ACTION
CONSTITUTED AN ADJUDICATION.  FINALLY, OUR DECISION LAST YEAR IN GREENE
V. MCELROY LENDS LITTLE SUPPORT TO THE RESPONDENTS' POSITION.  THE
GOVERNMENTAL ACTION THERE REVIEWED WAS CERTAINLY OF A JUDICIAL NATURE. 
THE VARIOUS SECURITY CLEARANCE BOARDS INVOLVED IN GREENE WERE NOT
CONDUCTING AN INVESTIGATION; THEY WERE DETERMINING WHETHER GREENE COULD
HAVE A SECURITY CLEARANCE - A LICENSE IN A REAL SENSE, AND ONE THAT HAD
A SIGNIFICANT IMPACT UPON HIS EMPLOYMENT.  BY CONTRAST, THE CIVIL
RIGHTS COMMISSION DOES NOT MAKE ANY BINDING ORDERS OR ISSUE
"CLEARANCES" OR LICENSES HAVING LEGAL EFFECT.  RATHER, IT INVESTIGATES
AND REPORTS LEAVING AFFIRMATIVE ACTION, IF THERE IS TO BE ANY, TO OTHER
GOVERNMENTAL AGENCIES WHERE THERE MUST BE ACTION DE NOVO. 

THE RESPONDENTS HAVE ALSO CONTENDED THAT THE CIVIL RIGHTS ACT OF 1957
IS INAPPROPRIATE LEGISLATION UNDER THE FIFTEENTH AMENDMENT.  WE HAVE
CONSIDERED THIS ARGUMENT, AND WE FIND IT TO BE WITHOUT MERIT.  IT WOULD
UNDULY LENGTHEN THIS OPINION TO ADD ANYTHING TO THE DISTRICT COURT'S
DISPOSITION OF THIS CLAIM.  SEE 177 F. SUPP., AT 819-821. 

RESPONDENTS' FINAL ARGUMENT IS THAT THE COMMISSION'S HEARINGS SHOULD
BE GOVERNED BY SECTION 7 OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT.
241, 5 U.S.C. SEC. 1006, WHICH SPECIFIES THE HEARING PROCEDURES TO BE
USED BY AGENCIES FALLING WITHIN THE COVERAGE OF THE ACT.  ONE OF THOSE
PROCEDURES IS THE RIGHT OF EVERY PARTY TO CONDUCT "SUCH CROSS
EXAMINATIONS AS MAY BE REQUIRED FOR A FULL AND TRUE DISCLOSURE OF THE
FACTS."  HOWEVER, WHAT THE RESPONDENTS FAIL TO RECOGNIZE IS THAT
60 STAT. 238, 5 U.S.C. SEC. 1003 (RULE MAKING), AND SECTION 5, 60 STAT.
239, 5 U.S.C. SEC. 1004 (ADJUDICATIONS), OF THE ACT.  AS WE HAVE
ALREADY INDICATED, THE CIVIL RIGHTS COMMISSION PERFORMS NONE OF THE
FUNCTIONS SPECIFIED IN THOSE SECTIONS. 

FROM WHAT WE HAVE SAID, IT IS OBVIOUS THAT THE DISTRICT COURT ERRED
IN BOTH CASES IN ENJOINING THE COMMISSION FROM HOLDING ITS SHREVEPORT
HEARING.  THE COURT'S JUDGMENTS ARE ACCORDINGLY REVERSED, AND THE CASES
ARE REMANDED WITH DIRECTION TO VACATE THE INJUNCTIONS.  REVERSED AND
REMANDED. 

FN1  ALTHOUGH THE CIVIL RIGHTS ACT OF 1957 PROVIDED THAT THE
COMMISSION SHOULD CEASE TO EXIST WITHIN TWO YEARS AFTER ITS CREATION,
71 STAT. 635, 42 U.S.C. SEC. 1975C, IN 1959 CONGRESS EXTENDED THE
COMMISSION'S LIFE FOR AN ADDITIONAL TWO YEARS.  73 STAT. 724. 

FN2  THE APPELLANTS IN NO. 549 AND THE PETITIONERS IN NO. 550 ARE THE
INDIVIDUAL MEMBERS OF THE CIVIL RIGHTS COMMISSION.  HEREINAFTER, THEY
WILL BE REFERRED TO AS "THE COMMISSION."  THE APPELLEES IN NO. 549 AND
THE RESPONDENTS IN NO. 550 WILL BOTH HEREINAFTER BE REFERRED TO AS
"RESPONDENTS." 

FN3  BECAUSE NO. 549 WAS HEARD AND DECIDED BY A THREE-JUDGE DISTRICT
COURT, A DIRECT APPEAL TO THIS COURT WAS SOUGHT BY THE COMMISSION
PURSUANT TO 28 U.S.C. SEC. 1253.  THE COMMISSION ALSO FILED AN APPEAL
IN NO. 550 WITH THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT.  HOWEVER, BEFORE THE COURT OF APPEALS COULD RENDER A DECISION
IN NO. 550, THE COMMISSION FILED A PETITION FOR CERTIORARI PURSUANT TO
RULE 20 OF THIS COURT.    FN4  SECTION 104 OF THE CIVIL RIGHTS ACT OF
1957, 71 STAT. 635, 42 U.S.C. SEC. 1975CA)(1). 

FN5  SECTION 105(F) OF THE CIVIL RIGHTS ACT AUTHORIZES THE COMMISSION
TO HOLD HEARINGS AND TO SUBPOENA WITNESSES.  THAT SECTION PROVIDES: 

"(F) HEARINGS; ISSUANCE OF SUBPENAS. 

"THE COMMISSION, OR ON THE AUTHORIZATION OF THE COMMISSION ANY
SUBCOMMITTEE OF TWO OR MORE MEMBERS, AT LEAST ONE OF WHOM SHALL BE OF
EACH MAJOR POLITICAL PARTY, MAY, FOR THE PURPOSE OF CARRYING OUT THE
PROVISIONS OF THIS ACT, HOLD SUCH HEARINGS AND ACT AT SUCH TIMES AND
PLACES AS THE COMMISSION OR SUCH AUTHORIZED SUBCOMMITTEE MAY DEEM
ADVISABLE.  SUBPENAS FOR THE ATTENDANCE AND TESTIMONY OF WITNESSES OR
THE PRODUCTION OF WRITTEN OR OTHER MATTER MAY BE ISSUED IN ACCORDANCE
WITH THE RULES OF THE COMMISSION AS CONTAINED IN SECTION 1975AJ) AND
(K) OF THIS TITLE, OVER THE SIGNATURE OF THE CHAIRMAN OF THE COMMISSION
OR OF SUCH SUBCOMMITTEE, AND MAY BE SERVED BY ANY PERSON DESIGNATED BY
SUCH CHAIRMAN."  71 STAT. 636, 42 U.S.C. SEC. 1975DF). 

FN6  THE ROLE OF PRIVATE CITIZENS IN DEPRIVING NEGROES OF THEIR RIGHT
TO VOTE WAS ONE OF THE QUESTIONS INVOLVED IN UNITED STATES V. MCELVEEN,
180 F. SUPP. 10 (E.D. LA.), AFF'D AS TO DEFENDANT THOMAS, 362 U.S. 58. 

FN7  RULE 3(I) OF THE COMMISSION'S RULES OF PROCEDURE, ADOPTED ON
JULY 1, 1958, PROHIBITS WITNESSES OR THEIR COUNSEL FROM CROSS-EXAMINING
OTHER WITNESSES.  THAT RULE READS: 

"INTERROGATION OF WITNESSES AT HEARINGS SHALL BE CONDUCTED ONLY BY
MEMBERS OF THE COMMISSION OR BY AUTHORIZED STAFF PERSONNEL." 

FN8  THE FULL TEXT OF SECTION 102(H) OF THE CIVIL RIGHTS ACT READS AS
FOLLOWS: 

"(H) SUBMISSION OF WRITTEN STATEMENTS. 

"IN THE DISCRETION OF THE COMMISSION, WITNESSES MAY SUBMIT BRIEF AND
PERTINENT SWORN STATEMENTS IN WRITING FOR INCLUSION IN THE RECORD.  THE
COMMISSION IS THE SOLE JUDGE OF THE PERTINENCY OF TESTIMONY AND
EVIDENCE ADDUCED AT ITS HEARINGS."  71 STAT. 634, 42 U.S.C. SEC.
1975AH). 

FN9  UNDER THE CIVIL RIGHTS ACT, THE COMMISSION NOT ONLY HAS THE
POWER TO ISSUE SUBPOENAS UNDER SECTION 105(F), BUT, AS IS CUSTOMARY
WHEN CONGRESS CONFERS THE SUBPOENA POWER ON AN INVESTIGATIVE AGENCY,
THE COMMISSION IS ALSO AUTHORIZED TO ENFORCE ITS SUBPOENAS BY ENLISTING
THE AID OF THE FEDERAL COURTS.  71 STAT. 636, 42 U.S.C. SEC. 1975DG). 

FN10  JUDGE WISDOM, WHO DISSENTED, WAS OF THE OPINION THAT THE
PROCEDURES ADOPTED BY THE COMMISSION WERE AUTHORIZED BY CONGRESS, AND
THAT THOSE PROCEDURES WERE ALSO CONSTITUTIONAL.  177 F. SUPP., AT 828. 

FN11  THE COURT'S INJUNCTION READS AS FOLLOWS: 

"FOR REASONS ASSIGNED IN THE COURT'S WRITTEN OPINION OF OCTOBER 6,
1959: 

"IT IS ORDERED, ADJUDGED AND DECREED THAT DEFENDANTS AND THEIR
AGENTS, SERVANTS, EMPLOYEES AND ATTORNEYS ARE ENJOINED AND RESTRAINED
FROM CONDUCTING THE PROPOSED HEARING IN SHREVEPORT, LOUISIANA, WHEREIN
PLAINTIFF REGISTRARS, ACCUSED OF DEPRIVING OTHERS OF THE RIGHT TO VOTE,
WOULD BE DENIED THE RIGHT OF APPRISAL, CONFRONTATION AND CROSS
EXAMINATION. 

"THIS INJUNCTION DOES NOT PROHIBIT ALL HEARINGS PURSUANT TO PUBLIC
LAW 85-315, 85TH CONGRESS, 42 U.S.C.A. 1975, ET SEQ., BUT ONLY THOSE
HEARINGS PROPOSED TO BE HELD IN THE WESTERN DISTRICT OF LOUISIANA
WHEREIN THE ACCUSED ARE DENIED THE RIGHT OF APPRISAL, CONFRONTATION AND
CROSS EXAMINATION. 

"THUS DONE AND SIGNED IN CHAMBERS ON THIS THE 9 DAY OF NOVEMBER,
1959." 

THE BREADTH OF THIS INJUNCTION IS INDICATED BY THE FACT THAT THE
COMMISSION IS NOT ONLY PROHIBITED FROM COMPELLING RESPONDENTS'
APPEARANCE AT THE HEARING, BUT IT IS ALSO ENJOINED FROM CONDUCTING ANY
HEARING IN THE WESTERN DISTRICT OF LOUISIANA UNDER EXISTING RULES OF
PROCEDURE, WHETHER OR NOT THE RESPONDENTS ARE CALLED AS WITNESSES. 

FN12  THE COMPLETE TEXT OF SECTION 102 READS AS FOLLOWS: 

"SEC. 1975A.  RULES OF PROCEDURE. 

(A)  OPENING STATEMENT. 

"THE CHAIRMAN OR ONE DESIGNATED BY HIM TO ACT AS CHAIRMAN AT A
HEARING OF THE COMMISSION SHALL ANNOUNCE IN AN OPENING STATEMENT THE
SUBJECT OF THE HEARING. 

"(B)  COPY OF RULES. 

"A COPY OF THE COMMISSION'S RULES SHALL BE MADE AVAILABLE TO THE
WITNESS BEFORE THE COMMISSION. 

"(C)  ATTENDANCE OF COUNSEL. 

"WITNESSES AT THE HEARINGS MAY BE ACCOMPANIED BY THEIR OWN COUNSEL
FOR THE PURPOSE OF ADVISING THEM CONCERNING THEIR CONSTITUTIONAL
RIGHTS. 

"(D)  CENSURE AND EXCLUSION OF COUNSEL. 

"THE CHAIRMAN OR ACTING CHAIRMAN MAY PUNISH BREACHES OF ORDER AND
DECORUM AND UNPROFESSIONAL ETHICS ON THE PART OF COUNSEL, BY CENSURE
AND EXCLUSION FROM THE HEARINGS. 

"(E)  DEFAMATORY, DEGRADING OR INCRIMINATING EVIDENCE. 

"IF THE COMMISSION DETERMINES THAT EVIDENCE OR TESTIMONY AT ANY
HEARING MAY TEND TO DEFAME, DEGRADE, OR INCRIMINATE ANY PERSON, IT
SHALL (1) RECEIVE SUCH EVIDENCE OR TESTIMONY IN EXECUTIVE SESSION; (2)
AFFORD SUCH PERSON AN OPPORTUNITY VOLUNTARILY TO APPEAR AS A WITNESS;
AND (3) RECEIVE AND DISPOSE OF REQUESTS FROM SUCH PERSON TO SUBPENA
ADDITIONAL WITNESSES. 

"(F)  REQUESTS FOR ADDITIONAL WITNESSES. 

"EXCEPT AS PROVIDED IN THIS SECTION AND SECTION 1975DF) OF THIS
TITLE, THE CHAIRMAN SHALL RECEIVE AND THE COMMISSION SHALL DISPOSE OF
REQUESTS TO SUBPENA ADDITIONAL WITNESSES. 

"(G)  RELEASE OF EVIDENCE TAKEN IN EXECUTIVE SESSION. 

"NO EVIDENCE OR TESTIMONY TAKEN IN EXECUTIVE SESSION MAY BE RELEASED
OR USED IN PUBLIC SESSIONS WITHOUT THE CONSENT OF THE COMMISSION. 
WHOEVER RELEASES OR USES IN PUBLIC WITHOUT THE CONSENT OF THE
COMMISSION EVIDENCE OR TESTIMONY TAKEN IN EXECUTIVE SESSION SHALL BE
FINED NOT MORE THAN $1,000, OR IMPRISONED FOR NOT MORE THAN ONE YEAR. 

"(H)  SUBMISSION OF WRITTEN STATEMENTS. 

"IN THE DISCRETION OF THE COMMISSION, WITNESSES MAY SUBMIT BRIEF AND
PERTINENT SWORN STATEMENTS IN WRITING FOR INCLUSION IN THE RECORD.  THE
COMMISSION IS THE SOLE JUDGE OF THE PERTINENCY OF TESTIMONY AND
EVIDENCE ADDUCED AT ITS HEARINGS. 

"(I)  TRANSCRIPTS. 

"UPON PAYMENT OF THE COST THEREOF, A WITNESS MAY OBTAIN A TRANSCRIPT
COPY OF HIS TESTIMONY GIVEN AT A PUBLIC SESSION OR, IF GIVEN AT AN
EXECUTIVE SESSION, WHEN AUTHORIZED BY THE COMMISSION. 

"(J)  WITNESS FEES. 

"A WITNESS ATTENDING ANY SESSION OF THE COMMISSION SHALL RECEIVE $4
FOR EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN
GOING TO AND RETURNING FROM THE SAME, AND 8 CENTS PER MILE FOR GOING
FROM AND RETURNING TO HIS PLACE OF RESIDENCE.  WITNESSES WHO ATTEND AT
POINTS SO FAR REMOVED FROM THEIR RESPECTIVE RESIDENCES AS TO PROHIBIT
RETURN THERETO FROM DAY TO DAY SHALL BE ENTITLED TO AN ADDITIONAL
ALLOWANCE OF $12 PER DAY FOR EXPENSES OF SUBSISTENCE, INCLUDING THE
TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE PLACE OF
ATTENDANCE.  MILEAGE PAYMENTS SHALL BE TENDERED TO THE WITNESS UPON
SERVICE OF A SUBPENA ISSUED ON BEHALF OF THE COMMISSION OR ANY
SUBCOMMITTEE THEREOF. 

"(K)  RESTRICTION ON ISSUANCE OF SUBPENA. 

"THE COMMISSION SHALL NOT ISSUE ANY SUBPENA FOR THE ATTENDANCE AND
TESTIMONY OF WITNESSES OR FOR THE PRODUCTION OF WRITTEN OR OTHER MATTER
WHICH WOULD REQUIRE THE PRESENCE OF THE PARTY SUBPENAED AT A HEARING TO
BE HELD OUTSIDE OF THE STATE, WHEREIN THE WITNESS IS FOUND OR RESIDES
OR TRANSACTS BUSINESS."  71 STAT. 634, 42 U.S.C. SEC. 1975A. 

IN ADDITION TO THE PROCEDURAL SAFEGUARDS PROVIDED BY SECTION 102 OF
THE ACT, THE COMMISSION'S RULES OF PROCEDURE GRANT ADDITIONAL
PROTECTION.  THUS, RULE 3(F) OF THE COMMISSION'S RULES OF PROCEDURE
PROVIDES: 

"(F)  AN ACCURATE TRANSCRIPT SHALL BE MADE OF THE TESTIMONY OF ALL
WITNESSES IN ALL HEARINGS, EITHER PUBLIC OR EXECUTIVE SESSIONS, OF THE
COMMISSION OR OF ANY SUBCOMMITTEE THEREOF.  EACH WITNESS SHALL HAVE THE
RIGHT TO INSPECT THE RECORD OF HIS OWN TESTIMONY.  A TRANSCRIPT COPY OF
HIS TESTIMONY MAY BE PURCHASED BY A WITNESS PURSUANT TO RULE 2(I)
ABOVE.  TRANSCRIPT COPIES OF PUBLIC SESSIONS MAY BE OBTAINED BY THE
PUBLIC UPON PAYMENT OF THE COST THEREOF."  AND RULE 3(J) PROVIDES: 

"(J)  IF THE COMMISSION PURSUANT TO RULE 2(E), OR ANY SUBCOMMITTEE
THEREOF, DETERMINES THAT EVIDENCE OR TESTIMONY AT ANY HEARING MAY TEND
TO DEFAME, DEGRADE, OR INCRIMINATE ANY PERSON, IT SHALL ADVISE SUCH
PERSON THAT SUCH EVIDENCE HAS BEEN GIVEN AND IT SHALL AFFORD SUCH
PERSON AN OPPORTUNITY TO READ THE PERTINENT TESTIMONY AND TO APPEAR AS
A VOLUNTARY WITNESS OR TO FILE A SWORN STATEMENT IN HIS BEHALF." 

FN13  THE AMENDMENTS INTRODUCED BY REPRESENTATIVE DIES READ, IN
PERTINENT PART, AS FOLLOWS: 

"'(Q)  A PERSON SHALL BE CONSIDERED TO BE ADVERSELY AFFECTED BY
EVIDENCE OR TESTIMONY OF A WITNESS IF THE COMMISSION DETERMINES THAT:
(I) THE EVIDENCE OR TESTIMONY WOULD CONSTITUTE LIBEL OR SLANDER IF NOT
PRESENTED BEFORE THE COMMISSION OR (II) THE EVIDENCE OR TESTIMONY
ALLEGES CRIME OR MISCONDUCT OR TENDS TO DISGRACE OR OTHERWISE TO EXPOSE
THE PERSON TO PUBLIC CONTEMPT, HATRED, OR SCORN. 

"'(R)  INSOFAR AS PRACTICABLE, ANY PERSON WHOSE ACTIVITIES ARE THE
SUBJECT OF INVESTIGATION BY THE COMMISSION, OR ABOUT WHOM ADVERSE
INFORMATION IS PROPOSED TO BE PRESENTED AT A PUBLIC HEARING OF THE
COMMISSION, SHALL BE FULLY ADVISED BY THE COMMISSION AS TO THE MATTERS
INTO WHICH THE COMMISSION PROPOSES TO INQUIRE AND THE ADVERSE MATERIAL
WHICH IS PROPOSED TO BE PRESENTED.  INSOFAR AS PRACTICABLE, ALL
MATERIAL REFLECTING ADVERSELY ON THE CHARACTER OR REPUTATION OF ANY
INDIVIDUAL WHICH IS PROPOSED TO BE PRESENTED AT A PUBLIC HEARING OF THE
COMMISSION SHALL BE FIRST REVIEWED IN EXECUTIVE SESSION TO DETERMINE
ITS RELIABILITY AND PROBATIVE VALUE AND SHALL NOT BE PRESENTED AT A
PUBLIC HEARING EXCEPT PURSUANT TO MAJORITY VOTE OF THE COMMISSION. 

"'(S)  IF A PERSON IS ADVERSELY AFFECTED BY EVIDENCE OR TESTIMONY
GIVEN IN A PUBLIC HEARING, THAT PERSON SHALL HAVE THE RIGHT:  (I) TO
APPEAR AND TESTIFY OR FILE A SWORN STATEMENT IN HIS OWN BEHALF, (II) TO
HAVE THE ADVERSE WITNESS RECALLED UPON APPLICATION MADE WITHIN THIRTY
DAYS AFTER INTRODUCTION OF SUCH EVIDENCE OR DETERMINATION OF THE
ADVERSE WITNESS' TESTIMONY, (III) TO BE REPRESENTED BY COUNSEL AS
HERETOFORE PROVIDED, (IV) TO CROSS-EXAMINE (IN PERSON OR BY COUNSEL)
SUCH ADVERSE WITNESS, AND (V) SUBJECT TO THE DISCRETION OF THE
COMMISSION, TO OBTAIN THE ISSUANCE BY THE COMMISSION OF SUBPENAS FOR
WITNESSES, DOCUMENTS, AND OTHER EVIDENCE IN HIS DEFENSE.  SUCH
OPPORTUNITY FOR REBUTTAL SHALL BE AFFORDED PROMPTLY AND, SO FAR AS
PRACTICABLE, SUCH HEARING SHALL BE CONDUCTED AT THE SAME PLACE AND
UNDER THE SAME CIRCUMSTANCES AS THE HEARING AT WHICH ADVERSE TESTIMONY
WAS PRESENTED. 

"'CROSS-EXAMINATION SHALL BE LIMITED TO ONE HOUR FOR EACH WITNESS,
UNLESS THE COMMISSION BY MAJORITY VOTE EXTENDS THE TIME FOR EACH
WITNESS OR GROUP OF WITNESSES. 

"'(T)  IF A PERSON IS ADVERSELY AFFECTED BY EVIDENCE OR TESTIMONY
GIVEN IN EXECUTIVE SESSION OR BY MATERIAL IN THE COMMISSION FILES OR
RECORDS, AND IF PUBLIC RELEASE OF SUCH EVIDENCE, TESTIMONY, OR MATERIAL
IS CONTEMPLATED SUCH PERSON SHALL HAVE, PRIOR TO THE PUBLIC RELEASE OF
SUCH EVIDENCE OR TESTIMONY OR MATERIAL OR ANY DISCLOSURE OF OR COMMENT
UPON IT BY MEMBERS OF THE COMMISSION OR COMMISSION STAFF OR TAKING OF
SIMILAR EVIDENCE OR TESTIMONY IN A PUBLIC HEARING, THE RIGHTS
HERETOFORE CONFERRED AND THE RIGHT TO INSPECT AT LEAST AS MUCH OF THE
EVIDENCE OR TESTIMONY OF THE ADVERSE WITNESS OR MATERIAL AS WILL BE
MADE PUBLIC OR THE SUBJECT OF A PUBLIC HEARING. 

"'(U)  ANY WITNESS (EXCEPT A MEMBER OF THE PRESS WHO TESTIFIES IN HIS
PROFESSIONAL CAPACITY) WHO GIVES TESTIMONY BEFORE THE COMMISSION IN AN
OPEN HEARING WHICH REFLECTS ADVERSELY ON THE CHARACTER OR REPUTATION OF
ANOTHER PERSON MAY BE REQUIRED BY THE COMMISSION TO DISCLOSE HIS
SOURCES OF INFORMATION, UNLESS TO DO SO WOULD ENDANGER THE NATIONAL
SECURITY.'"  102 CONG. REC.  13542-13543. 

FN14  THE COMPLETE TEXT OF THE HOUSE "FAIR PLAY" RULES MAY BE FOUND
IN H. RES. 151, 84TH CONG., 1ST SESS. 

FN15  THAT CONGRESS FOCUSED UPON THE ISSUES HERE INVOLVED AND
RECOGNIZED THE DISTINCTIONS BETWEEN H.R. 6127 AND S. 83 IS ATTESTED TO
BY THE FOLLOWING EXTRACTS FROM THE FLOOR DEBATE AND COMMITTEE
HEARINGS: 

IN TESTIFYING BEFORE BOTH THE HOUSE AND SENATE SUBCOMMITTEES
CONSIDERING THE VARIOUS PROPOSED CIVIL RIGHTS BILLS, ATTORNEY GENERAL
BROWNELL SUPPORTED THE ADOPTION OF THE HOUSE "FAIR PLAY" RULES INSTEAD
OF THE MORE RESTRICTIVE PROCEDURES OUTLINED IN S. 83.  THUS, AT THE
SENATE HEARINGS, THE ATTORNEY GENERAL MADE THE FOLLOWING STATEMENT: 

"NOW THERE IS ONE OTHER ADDITION TO S. 83 THAT I WOULD LIKE TO MAKE
SPECIAL REFERENCE TO AND THAT IS THE PROVISION FOR RULES OF PROCEDURE
CONTAINED IN SECTION 102 ON PAGES 2 TO 10 OF S. 83. 

"THESE RULES OF PROCEDURE ARE CONSIDERABLY MORE RESTRICTIVE THAN
THOSE IMPOSED ON REGULAR COMMITTEES OF THE HOUSE AND SENATE.  THERE IS
MUCH IN THEM WHICH CLEARLY WOULD BE DESIRABLE.  WE HAVE NOT AS YET HAD
ANY EXPERIENCE WITH THE USE OF RULES SUCH AS THOSE PROPOSED HERE AND WE
CANNOT PREDICT THE EXTENT TO WHICH THEY MIGHT BE USED TO OBSTRUCT THE
WORK OF THE COMMISSION. 

*         *         *         *         * 

"YET I FEEL THAT THE TASK TO BE GIVEN TO THIS COMMISSION IS OF SUCH
GREAT PUBLIC IMPORTANCE THAT IT WOULD BE A MISTAKE TO MAKE IT THE
VEHICLE FOR EXPERIMENTING WITH NEW RULES WHICH MAY HAVE TO BE TESTED
OUT UNDER THE COURTS AND THIS IS ONLY A 2-YEAR COMMISSION AND YOU MIGHT
HAVE TO SPEND THOSE 2 YEARS STUDYING THE RULES INSTEAD OF GETTING AT
THE FACTS."  HEARINGS BEFORE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF
THE SENATE JUDICIARY COMMITTEE, 85TH CONG., 1ST SESS.  14-15. 

SEE ALSO HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE JUDICIARY
COMMITTEE, 85TH CONG., 1ST SESS. 593. 

THE LACK OF ANY RIGHT TO CROSS-EXAMINE WITNESSES WAS COMMENTED UPON
BY MEMBERS OF BOTH THE HOUSE AND THE SENATE:    STATEMENT OF SENATOR
TALMADGE DURING THE SENATE FLOOR DEBATE, 103 CONG. REC. 11504: 

"NO PROVISION IS MADE FOR NOTIFICATION OF PERSONS AGAINST WHOM
CHARGES ARE TO BE MADE. 

"NO PROVISION IS MADE FOR PERSONS ADVERSELY AFFECTED BY TESTIMONY
TAKEN BY THE COMMISSION TO BE PRESENT WHEN THEY ARE ACCUSED OR LATER TO
CONFRONT AND CROSS-EXAMINE THEIR ACCUSERS." 

STATEMENT OF SENATOR STENNIS DURING SENATE FLOOR DEBATE, 103 CONG.
REC. 13835: 

"DEFAMATORY TESTIMONY TENDING TO DEFAME, DEGRADE, OR INCRIMINATE ANY
PERSON CANNOT BE HEARD BY THE PERSON SLANDERED, SINCE THE TESTIMONY
MUST BE TAKEN IN EXECUTIVE SESSION.  THERE IS NO REQUIREMENT IN THE
PROPOSED STATUTE THAT THE PERSON INJURED BY DEFAMATORY TESTIMONY SHALL
HAVE AN OPPORTUNITY TO EXAMINE THE NATURE OF THE ADVERSE TESTIMONY.  HE
HAS NO RIGHT OF CONFRONTATION NOR CROSS-EXAMINATION, AND HIS REQUEST TO
SUBPENA WITNESSES ON HIS BEHALF FALLS WITHIN THE ARBITRARY DISCRETION
OF THE COMMISSION.  THERE IS NO RIGHT TO SUBPENA WITNESSES." 

STATEMENT OF REPRESENTATIVE KILDAY DURING HOUSE FLOOR DEBATE, 103
CONG. REC. 8673: 

"THE BILL PROVIDES THAT WITNESSES MAY BE ACCOMPANIED BY COUNSEL, FOR
WHAT PURPOSE?  'FOR THE PURPOSE OF ADVISING THEM CONCERNING THEIR
CONSTITUTIONAL RIGHTS.'  THAT IS ALL.  EVEN THOUGH THE COMMISSION OR
ITS OWN COUNSEL DEVELOPS ONLY A PORTION OF A TRANSACTION, AND THAT
ADVERSE TO THE WITNESS, HIS LAWYER CANNOT ASK A SINGLE QUESTION TO
DEVELOP THE REMAINDER OF THE TRANSACTION OR THE PORTION FAVORABLE TO
HIM." 

STATEMENT OF REPRESENTATIVE FRAZIER DURING HEARINGS BEFORE THE HOUSE
RULES COMMITTEE, 85TH CONG., 1ST SESS. 176: 

"THE AUTHORS OF THIS PROPOSAL CONTEMPLATE THAT IT WILL YIELD
THOUSANDS OF COMPLAINTS AND EVEN MORE THOUSANDS OF SUBPENAS WILL BE
ISSUED.  THE VARIOUS ALLEGATIONS WILL, IN THE FIRST INSTANCE, BE
INCONTROVERTIBLE AND WHOLLY EX PARTE AND THE PRINCIPAL CONCERNED,
AGAINST WHOM THE CHARGES ARE MADE, WHEN SUMMONED AS A WITNESS IS GIVEN
NO OPPORTUNITY TO CROSS-EXAMINE.  TRUE, THE PERSON SUMMONED AS A
WITNESS MAY HAVE COUNSEL (SEC. 102), BUT ONLY FOR THE PURPOSE OF
ADVISING HIM OF HIS CONSTITUTIONAL RIGHTS." 

THAT THE BILL CONTAINED THE HOUSE "FAIR PLAY" RULES IS DEMONSTRATED
BY THE FOLLOWING STATEMENT OF REPRESENTATIVE CELLER, THE AUTHOR OF THE
BILL: 

"THE RULES OF PROCEDURE OF THE COMMISSION ARE THE SAME AS THOSE WHICH
GOVERN THE COMMITTEES OF THE HOUSE.  FOR EXAMPLE, THE CHAIRMAN IS
REQUIRED TO MAKE AN OPENING STATEMENT AS TO THE SUBJECT OF THE
HEARING.  WITNESSES ARE FURNISHED WITH A COPY OF THE COMMISSION'S RULES
AND MAY BE ACCOMPANIED BY COUNSEL.  THE CHAIRMAN IS AUTHORIZED TO
PUNISH BREACHES OF ORDER BY CENSURE AND EXCLUSION.  PROTECTION IS
FURNISHED TO WITNESSES WHEN IT APPEARS THAT A PERSON MAY BE THE SUBJECT
OF DEROGATORY INFORMATION BY REQUIRING SUCH EVIDENCE TO BE RECEIVED IN
EXECUTIVE SESSION, AND AFFORDING THE PERSON AFFECTED THE RIGHT TO
APPEAR AND TESTIFY, AND FURTHER TO SUBMIT A REQUEST FOR SUBPENA OF
ADDITIONAL WITNESSES."  103 CONG. REC. 8491. 

FN16  ALTHOUGH THE RESPONDENTS CONTEND THAT THE PROCEDURES ADOPTED BY
THE COMMISSION ALSO VIOLATE THEIR RIGHTS UNDER THE SIXTH AMENDMENT,
THEIR CLAIM DOES NOT MERIT EXTENSIVE DISCUSSION.  THAT AMENDMENT IS
SPECIFICALLY LIMITED TO "CRIMINAL PROSECUTIONS," AND THE PROCEEDINGS OF
THE COMMISSION CLEARLY DO NOT FALL WITHIN THAT CATEGORY.  SEE UNITED
STATES V. ZUCKER, 161 U.S. 475, 481. 

FN17  THE FULL TEXT OF SECTION 104 OF THE ACT READS AS FOLLOWS: 

"SEC. 1975C.  DUTIES; REPORTS; TERMINATION. 

"(A)  THE COMMISSION SHALL: 

"(1)  INVESTIGATE ALLEGATIONS IN WRITING UNDER OATH OR AFFIRMATION
THAT CERTAIN CITIZENS OF THE UNITED STATES ARE BEING DEPRIVED OF THEIR
RIGHT TO VOTE AND HAVE THAT VOTE COUNTED BY REASON OF THEIR COLOR,
RACE, RELIGION, OR NATIONAL ORIGIN; WHICH WRITING, UNDER OATH OR
AFFIRMATION, SHALL SET FORTH THE FACTS UPON WHICH SUCH BELIEF OR
BELIEFS ARE BASED: 

"(2)  STUDY AND COLLECT INFORMATION CONCERNING LEGAL DEVELOPMENTS
CONSTITUTING A DENIAL OF EQUAL PROTECTION OF THE LAWS UNDER THE
CONSTITUTION; AND: 

"(3)  APPRAISE THE LAWS AND POLICIES OF THE FEDERAL GOVERNMENT WITH
RESPECT TO EQUAL PROTECTION OF THE LAWS UNDER THE CONSTITUTION. 

"(B)  THE COMMISSION SHALL SUBMIT INTERIM REPORTS TO THE PRESIDENT
AND TO THE CONGRESS AT SUCH TIMES AS EITHER THE COMMISSION OR THE
PRESIDENT SHALL DEEM DESIRABLE, AND SHALL SUBMIT TO THE PRESIDENT AND
TO THE CONGRESS A FINAL AND COMPREHENSIVE REPORT OF ITS ACTIVITIES,
FINDINGS, AND RECOMMENDATIONS NOT LATER THAN TWO YEARS FROM SEPTEMBER
9, 1957. 

"(C)  SIXTY DAYS AFTER THE SUBMISSION OF ITS FINAL REPORT AND
RECOMMENDATIONS THE COMMISSION SHALL CEASE TO EXIST."  71 STAT. 635, 42
U.S.C. SEC. 1975C. 

FN18  IT SHOULD BE NOTED THAT THE RESPONDENTS IN THESE CASES DID HAVE
NOTICE OF THE GENERAL NATURE OF THE INQUIRY.  THE ONLY INFORMATION
WITHHELD FROM THEM WAS THE IDENTITY OF SPECIFIC COMPLAINANTS AND THE
EXACT CHARGES MADE BY THOSE COMPLAINANTS.  BECAUSE MOST OF THE CHARGES
RELATED TO THE DENIAL OF INDIVIDUAL VOTING RIGHTS, IT IS APPARENT THAT
THE COMMISSION COULD NOT HAVE DISCLOSED THE EXACT CHARGES WITHOUT ALSO
REVEALING THE NAMES OF THE COMPLAINANTS. 

FN19  CF. SINCLAIR V. UNITED STATES, 279 U.S. 263, 295, HOLDING THAT
CONGRESS' LEGITIMATE RIGHT TO INVESTIGATE IS NOT AFFECTED BY THE FACT
THAT INFORMATION DISCLOSED AT THE INVESTIGATION MAY ALSO BE USED IN A
SUBSEQUENT CRIMINAL PROSECUTION.  CF. ALSO MCGRAIN V. DAUGHERTY, 273
U.S. 135, 179-180, HOLDING THAT A REGULAR CONGRESSIONAL INVESTIGATION
IS NOT RENDERED INVALID MERELY BECAUSE "IT MIGHT POSSIBLY DISCLOSE
CRIME OR WRONGDOING" ON THE PART OF WITNESSES SUMMONED TO APPEAR AT THE
INVESTIGATION.  ID., AT 180. 

FN20  THE INJUNCTION ISSUED BY THE COURT BELOW WOULD CERTAINLY LEAD
TO THIS RESULT SINCE IT PROHIBITS THE COMMISSION FROM CONDUCTING ANY
HEARING UNDER EXISTING PROCEDURE, EVEN THOUGH THOSE BEING INVESTIGATED
ARE NOT SUMMONED TO TESTIFY. 

FN21  A COMPILATION OF THE RULES OF PROCEDURE GOVERNING THE
INVESTIGATIVE PROCEEDINGS OF A REPRESENTATIVE GROUP OF ADMINISTRATIVE
AND EXECUTIVE AGENCIES, PRESIDENTIAL COMMISSIONS, AND CONGRESSIONAL
COMMITTEES IS SET OUT IN THE APPENDIX TO THIS OPINION, POST, P. 454. 

FN22  THE FIRST FULL-FLEDGED CONGRESSIONAL INVESTIGATING COMMITTEE
WAS ESTABLISHED IN 1792 TO "INQUIRE INTO THE CAUSES OF THE FAILURE OF
THE LATE EXPEDITION UNDER MAJOR GENERAL ST. CLAIR."  3 ANNALS OF CONG.
493 (1792).  THE DEVELOPMENT AND USE OF LEGISLATIVE INVESTIGATION BY
THE COLONIAL GOVERNMENTS IS DISCUSSED IN EBERLING, CONGRESSIONAL
INVESTIGATIONS, 13-30.  THE ENGLISH ORIGIN OF LEGISLATIVE INVESTIGATION
IN THIS COUNTRY IS DISCUSSED IN DIMOCK, CONGRESSIONAL INVESTIGATING
COMMITTEES, 46-56. 

FN23  SEE, E.G., KILBOURN V. THOMPSON, 103 U.S. 168; MCGRAIN V.
DAUGHERTY, 273 U.S. 135; SINCLAIR V. UNITED STATES, 279 U.S. 263;
CHRISTOFFEL V. UNITED STATES, 338 U.S. 84; UNITED STATES V. BRYAN, 339
U.S. 323; UNITED STATES V. FLEISCHMAN, 339 U.S. 349; WATKINS V. UNITED
STATES, 354 U.S. 178; BARENBLATT V. UNITED STATES, 360 U.S. 109. 

FN24  SEE APPENDIX, POST, PP. 478-485.  SEE ALSO DIMOCK,
CONGRESSIONAL INVESTIGATING COMMITTEES, 153; EBERLING, CONGRESSIONAL
INVESTIGATIONS, 283, 390; MCGEARY, THE DEVELOPMENTS OF CONGRESSIONAL
INVESTIGATIVE POWER, 80; LIACOS, RIGHTS OF WITNESSES BEFORE
CONGRESSIONAL COMMITTEES, 33 B.U.L. REV. 337, 359-361; AMERICAN BAR
ASSOCIATION, SPECIAL COMMITTEE ON INDIVIDUAL RIGHTS AS AFFECTED BY
NATIONAL SECURITY, APPENDIX TO REPORT ON CONGRESSIONAL INVESTIGATIONS,
67-68. 

THE ENGLISH PRACTICE IS DESCRIBED IN CLOKIE AND ROBINSON, ROYAL
COMMISSIONS OF INQUIRY; FINER, CONGRESSIONAL INVESTIGATIONS:  THE
BRITISH SYSTEM, 18 U. OF CHI.  L. REV. 521; KEETON, PARLIAMENTARY
TRIBUNALS OF INQUIRY, IN VOL. 12, CURRENT LEGAL PROBLEMS 1959, 12. 

FN25  SEE APPENDIX, POST, PP. 454-471.  SEE ALSO GELLHORN, FEDERAL
ADMINISTRATIVE PROCEEDINGS, 108; REPORT OF THE ATTORNEY GENERAL'S
COMMITTEE ON ADMINISTRATIVE PROCEDURE AND THE VARIOUS MONOGRAPHS
WRITTEN BY THAT COMMITTEE. 

FN26  THE COMMISSION'S PRACTICE WITH REGARD TO INVESTIGATIONS WAS
DESCRIBED BY THE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE
PROCEDURE, MONOGRAPH, SECURITIES EXCHANGE COMMISSION, 34-41.  THE
FOLLOWING EXTRACT IS PERTINENT HERE: 

"WHERE FORMAL INVESTIGATIONS ARE UTILIZED AS PRELIMINARIES TO DECISIVE
PROCEEDINGS, THE PERSON BEING INVESTIGATED IS NORMALLY NOT SENT A
NOTICE, WHICH, IN ANY EVENT, IS NOT PUBLIC.  THE ORDER FOR
INVESTIGATION, WHICH INCLUDES THE NOTICE, IS, HOWEVER, EXHIBITED TO ANY
PERSON EXAMINED IN THE COURSE OF SUCH INVESTIGATION WHO SO REQUESTS;
SINCE ORDINARILY THE INVESTIGATION WILL INCLUDE THE EXAMINATION OF THE
PERSON SUSPECTED OF VIOLATION, HE WILL, THUS, HAVE ACTUAL NOTICE OF THE
INVESTIGATION.  SINCE A PERSON MAY, ON THE OTHER HAND, BE WHOLLY
UNAWARE OF THE FACT THAT HE IS BEING INVESTIGATED UNTIL HIS FRIENDS WHO
ARE INTERVIEWED SO INFORM HIM, AND SINCE THIS MAY SOMETIMES GIVE RISE
TO ANTAGONISM AND A FEELING THAT THE COMMISSION IS BESMIRCHING HIM
BEHIND HIS BACK, NO REASON IS APPARENT WHY, SIMPLY AS A MATTER OF GOOD
WILL, THE COMMISSION SHOULD NOT IN ORDINARY CASES SEND A COPY OF ITS
ORDER FOR INVESTIGATION TO THE PERSON UNDER INVESTIGATION. 

     *         *         *         *         * 

"THE COMMISSION'S RULES OF PRACTICE EXPRESSLY PROVIDE THAT ALL SUCH
RULES (GOVERNING NOTICE, AMENDMENTS, OBJECTIONS TO EVIDENCE, BRIEFS,
AND THE LIKE) ARE INAPPLICABLE TO FORMAL INVESTIGATORY HEARINGS IN THE
ABSENCE OF EXPRESS PROVISION TO THE CONTRARY IN THE ORDER AND WITH THE
EXCEPTION OF RULE II, WHICH RELATES TO APPEARANCE AND PRACTICE BY
REPRESENTATIVES BEFORE THE COMMISSION.  THE TESTIMONY GIVEN IN SUCH
INVESTIGATIONS IS RECORDED  ...  .  IN THE USUAL CASE, WITNESSES ARE
GRANTED THE RIGHT TO BE ACCOMPANIED BY COUNSEL, BUT THE LATTER'S ROLE
IS LIMITED SIMPLY TO ADVISING THE WITNESSES IN RESPECT OF THEIR RIGHT
AGAINST SELF-INCRIMINATION WITHOUT CLAIMING THE BENEFITS OF THE
IMMUNITY CLAUSE OF THE PERTINENT STATUTE (A RIGHT OF WHICH THE
PRESIDING OFFICER IS, IN ANY EVENT, INSTRUCTED TO APPRISE THE
WITNESSES) AND TO MAKING OBJECTIONS TO QUESTIONS WHICH ASSERTEDLY
EXCEED THE SCOPE OF THE ORDER OF INVESTIGATION."  ID., 37-38.  SEE ALSO
LOSS, SECURITIES REGULATION (1951), 1152. 

FN27  LOSS, SECURITIES REGULATION (1951), 1153.  SEE ALSO THE
STATUTES CITED IN THE APPENDIX, POST, P. 463.  (APPENDIX OMITTED.) 

FN28  MARCY, PRESIDENTIAL COMMISSIONS, 97-101. 

FN29  SEE APPENDIX, POST, PP. 472-479.  (APPENDIX OMITTED.) 

FN30  HOWEVER, THE COURTS HAVE ON MORE THAN ONE OCCASION LIKENED
INVESTIGATIVE AGENCIES OF THE EXECUTIVE BRANCH OF GOVERNMENT TO A GRAND
JURY.  SEE, E.G., UNITED STATES V. MORTON SALT CO., 338 U.S. 632, 642;
OKLAHOMA PRESS PUB. CO. V. WALLING, 327 U.S. 186, 216; CONSOLIDATED
MINES OF CALIF. V. SECURITIES & EXCHANGE COMM'N, 97 F.2D 704, 708 (C.A.
9TH CIR.); WOOLLEY V. UNITED STATES, 97 F.2D 258, 262 (C.A. 9TH CIR.). 

FN31  THE COMMISSION CITES IN RE GROBAN, 352 U.S. 330, AND ANONYMOUS
V. BAKER, 360 U.S. 287, IN SUPPORT OF ITS POSITION.  EACH OF US WHO
PARTICIPATED IN THOSE CASES ADHERES TO THE VIEW TO WHICH HE SUBSCRIBED
THEREIN.  HOWEVER, BECAUSE THERE ARE SIGNIFICANT DIFFERENCES BETWEEN
THE GROBAN AND ANONYMOUS CASES AND THE INSTANT LITIGATION, AND BECAUSE
THE RESULT WE REACH TODAY IS SUPPORTED BY THE OTHER CONSIDERATIONS
ANALYZED HEREIN, THE COURT DOES NOT FIND IT NECESSARY TO DISCUSS EITHER
OF THOSE CASES. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT, SEE
POST, P. 486. 

FOR CONCURRING OPINION OF MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE
CLARK, SEE POST, P. 493. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, JOINED BY MR. JUSTICE
BLACK, SEE POST, P. 493. 

APPENDIX TO OPINION OF THE COURT IS OMITTED. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT. 

THE UNITED STATES COMMISSION ON CIVIL RIGHTS, IN EXERCISING POWERS
GRANTED TO IT BY THE CIVIL RIGHTS ACT OF 1957 (71 STAT. 635, 42 U.S.C.
SEC. 1975C), SCHEDULED A HEARING TO BE HELD BY IT IN SHREVEPORT,
LOUISIANA, ON JULY 13, 1959.  BY THESE TWO ACTIONS JUDGMENTS WERE
SOUGHT TO DECLARE THE PROPOSED HEARING ILLEGAL AND TO RESTRAIN THE
MEMBERS OF THE COMMISSION FROM HOLDING IT. 

THE RULES OF PROCEDURE FORMULATED BY THE COMMISSION AMPLY REST ON
LEAVE OF CONGRESS.  I NEED ADD NOTHING ON THIS PHASE OF THE CASE TO THE
COURT'S OPINION.  WHILE IT IS A MOST SALUTARY DOCTRINE OF
CONSTITUTIONAL ADJUDICATION TO GIVE A STATUTE EVEN A STRAINED
CONSTRUCTION TO AVOID FACING A SERIOUS DOUBT OF CONSTITUTIONALITY,
"AVOIDANCE OF A DIFFICULTY WILL NOT BE PRESSED TO THE POINT OF
DISINGENUOUS EVASION.  HERE THE INTENTION OF THE CONGRESS IS REVEALED
TOO DISTINCTLY TO PERMIT US TO IGNORE IT BECAUSE OF MERE MISGIVINGS AS
TO POWER.  THE PROBLEM MUST BE FACED AND ANSWERED."  MOORE ICE CREAM
CO. V. ROSE, 289 U.S. 373, 379.  I HAVE NO SUCH MISGIVINGS IN THE
SITUATION BEFORE US.  I ALSO AGREE WITH THE COURT'S CONCLUSION IN
REJECTING THE CONSTITUTIONAL CLAIMS OF THE PLAINTIFFS.  IN VIEW,
HOWEVER, OF DIVERGENCIES BETWEEN THE COURT'S ANALYSIS AND MINE OF THE
SPECIFIC ISSUES BEFORE US, INCLUDING THE AUTHORITATIVE RELEVANCE OF IN
RE GROBAN, 352 U.S. 330, AND ANONYMOUS NO. 6 V. BAKER, 360 U.S. 287, I
STATE MY REASONS FOR AGREEMENT.    TO CONDUCT THE SHREVEPORT HEARING ON
THE BASIS OF SWORN ALLEGATIONS OF WRONGDOING BY THE PLAINTIFFS, WITHOUT
SUBMITTING TO THEM THESE ALLEGATIONS AND DISCLOSING THE IDENTITIES OF
THE AFFIANTS, WOULD, IT IS CLAIMED, VIOLATE THE CONSTITUTION.  THE
ISSUE THUS RAISED TURNS EXCLUSIVELY ON THE APPLICATION OF THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  THE COMMISSION'S HEARINGS ARE
NOT PROCEEDINGS REQUIRING A PERSON TO ANSWER FOR AN "INFAMOUS CRIME,"
WHICH MUST BE BASED ON AN INDICTMENT OF A GRAND JURY (AMENDMENT V), NOR
ARE THEY "CRIMINAL PROSECUTIONS" GIVING AN ACCUSED THE RIGHTS DEFINED
BY AMENDMENT VI.  SINCE DUE PROCESS IS THE CONSTITUTIONAL AXIS ON WHICH
DECISION MUST TURN, OUR CONCERN IS NOT WITH ABSOLUTES, EITHER OF
GOVERNMENTAL POWER OR OF SAFEGUARDS PROTECTING INDIVIDUALS.  INQUIRY
MUST BE DIRECTED TO THE VALIDITY OF THE ADJUSTMENT BETWEEN THESE
CLASHING INTERESTS - THAT OF GOVERNMENT AND OF THE INDIVIDUAL,
RESPECTIVELY - IN THE PROCEDURAL SCHEME DEVISED BY THE CONGRESS AND THE
COMMISSION.  WHETHER THE SCHEME SATISFIES THOSE STRIVINGS FOR JUSTICE
WHICH DUE PROCESS GUARANTEES, MUST BE JUDGED IN THE LIGHT OF REASON
DRAWN FROM THE CONSIDERATIONS OF FAIRNESS THAT REFLECT OUR TRADITIONS
OF LEGAL AND POLITICAL THOUGHT, DULY RELATED TO THE PUBLIC INTEREST
CONGRESS SOUGHT TO MEET BY THIS LEGISLATION AS AGAINST THE HAZARDS OR
HARDSHIP TO THE INDIVIDUAL THAT THE COMMISSION PROCEDURE WOULD ENTAIL. 

BARRING RARE LAPSES, THIS COURT HAS NOT UNDULY CONFINED THOSE WHO
HAVE THE RESPONSIBILITY OF GOVERNING WITHIN A DOCTRINAIRE CONCEPTION OF
"DUE PROCESS."  THE COURT HAS BEEN MINDFUL OF THE MANIFOLD VARIETY AND
PERPLEXITY OF THE TASKS WHICH THE CONSTITUTION HAS VESTED IN THE
LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT BY RECOGNIZING
THAT WHAT IS UNFAIR IN ONE SITUATION MAY BE FAIR IN ANOTHER.  COMPARE,
FOR INSTANCE, MURRAY'S LESSEE V. HOBOKEN LAND & IMPROVEMENT CO., 18
HOW.  272, WITH NG FUNG HO V. WHITE, 259 U.S. 276, AND SEE
COMMUNICATIONS COMM'N V. WJR, 337 U.S. 265, 275.  WHETHER THE PROCEDURE
NOW QUESTIONED OFFENDS "THE RUDIMENTS OF FAIR PLAY," CHICAGO, M. & ST.
P.R. CO. V. POLT, 232 U.S. 165, 168, IS NOT TO BE TESTED BY LOOSE
GENERALITIES OR SENTIMENTS ABSTRACTLY APPEALING.  THE PRECISE NATURE OF
THE INTEREST ALLEGED TO BE ADVERSELY AFFECTED OR OF THE FREEDOM OF
ACTION CLAIMED TO BE CURTAILED, THE MANNER IN WHICH THIS IS TO BE DONE
AND THE REASONS FOR DOING IT, THE BALANCE OF INDIVIDUAL HURT AND THE
JUSTIFYING PUBLIC GOOD - THESE AND SUCH LIKE ARE THE CONSIDERATIONS,
AVOWED OR IMPLICIT, THAT DETERMINE THE JUDICIAL JUDGMENT WHEN APPEAL IS
MADE TO "DUE PROCESS." 

THE PROPOSED SHREVEPORT HEARING CREATES RISKS OF HARM TO THE
PLAINTIFFS.  IT IS LIKEWISE TRUE THAT, WERE THE PLAINTIFFS AFFORDED THE
PROCEDURAL RIGHTS THEY SEEK, THEY WOULD HAVE A GREATER OPPORTUNITY TO
REDUCE THESE RISKS THAN WILL BE THEIRS UNDER THE QUESTIONED RULES OF
THE COMMISSION.  SOME CHARGES TOUCHING THE PLAINTIFFS MIGHT BE
WITHDRAWN OR MODIFIED, IF THOSE MAKING THEM KNEW THAT THEIR IDENTITIES
AND THE CONTENT OF THEIR CHARGES WERE TO BE REVEALED.  BY THE
SAFEGUARDS THEY SEEK THE PLAINTIFFS MIGHT USE THE HEARING AS A FORUM
FOR SUBJECTING THE CHARGES AGAINST THEM TO A SCRUTINY THAT MIGHT
DISPROVE THEM OR, AT LEAST, ESTABLISH THAT THEY ARE NOT INCOMPATIBLE
WITH INNOCENT CONDUCT. 

WERE THE COMMISSION EXERCISING AN ACCUSATORY FUNCTION, WERE ITS DUTY
TO FIND THAT NAMED INDIVIDUALS WERE RESPONSIBLE FOR WRONGFUL
DEPRIVATION OF VOTING RIGHTS AND TO ADVERTISE SUCH FINDING OR TO SERVE
AS PART OF THE PROCESS OF CRIMINAL PROSECUTION, THE RIGOROUS
PROTECTIONS RELEVANT TO CRIMINAL PROSECUTIONS MIGHT WELL BE THE
CONTROLLING STARTING POINT FOR ASSESSING THE PROTECTION WHICH THE
COMMISSION'S PROCEDURE PROVIDES.  THE OBJECTIVES OF THE COMMISSION ON
CIVIL RIGHTS, THE PURPOSE OF ITS CREATION, AND ITS TRUE FUNCTIONING ARE
QUITE OTHERWISE.  IT IS NOT CHARGED WITH OFFICIAL JUDGMENT ON
INDIVIDUALS NOR ARE ITS INQUIRIES SO DIRECTED.  THE PURPOSE OF ITS
INVESTIGATIONS IS TO DEVELOP FACTS UPON WHICH LEGISLATION MAY BE
BASED.  AS SUCH, ITS INVESTIGATIONS ARE DIRECTED TO THOSE CONCERNS THAT
ARE THE NORMAL IMPULSE TO LEGISLATION AND THE BASIS FOR IT.  TO IMPOSE
UPON THE COMMISSION'S INVESTIGATIONS THE SAFEGUARDS APPROPRIATE TO
INQUIRIES INTO INDIVIDUAL BLAMEWORTHINESS WOULD BE TO DIVERT AND
FRUSTRATE ITS PURPOSE.  ITS INVESTIGATION WOULD BE TURNED INTO A FORUM
FOR THE LITIGATION OF INDIVIDUAL CULPABILITY - MATTERS WHICH ARE NOT
WITHIN THE KEEPING OF THE COMMISSION, WITH WHICH IT IS NOT EFFECTIVELY
EQUIPPED TO DEAL, AND WHICH WOULD DEFLECT IT FROM THE PURPOSE FOR WHICH
IT WAS WITHIN ITS LIMITED LIFE ESTABLISHED. 

WE WOULD BE SHUTTING OUR EYES TO ACTUALITIES TO BE UNMINDFUL OF THE
FACT THAT IT WOULD DISSUADE SOURCES OF VITALLY RELEVANT INFORMATION
FROM MAKING THAT INFORMATION KNOWN TO THE COMMISSION, IF THE COMMISSION
WERE REQUIRED TO REVEAL ITS SOURCES AND SUBJECT THEM TO CROSS
EXAMINATION.  THIS WOULD NOT BE A VALID CONSIDERATION FOR SECRECY WERE
THE COMMISSION CHARGED WITH PASSING OFFICIAL INCRIMINATORY OR EVEN
DEFAMATORY JUDGMENT ON INDIVIDUALS.  SINCE THE COMMISSION IS MERELY AN
INVESTIGATORIAL ARM OF CONGRESS, THE NARROW RISK OF UNINTENDED HARM TO
THE INDIVIDUAL IS OUTWEIGHED BY THE LEGISLATIVE JUSTIFICATION FOR
PERMITTING THE COMMISSION TO BE THE CRITIC AND PROTECTOR OF THE
INFORMATION GIVEN IT.  IT WOULD BE WRONG NOT TO ASSUME THAT THE
COMMISSION WILL RESPONSIBLY SCRUTINIZE THE RELIABILITY OF SWORN
ALLEGATIONS THAT ARE TO SERVE AS THE BASIS FOR FURTHER INVESTIGATION
AND THAT IT WILL BE RIGOROUSLY VIGILANT TO PROTECT THE FAIR NAME OF
THOSE BROUGHT INTO QUESTION. 

IN APPRAISING THE CONSTITUTIONALLY PERMISSIVE INVESTIGATIVE PROCEDURE
CLAIMED TO SUBJECT INDIVIDUALS TO INCRIMINATION OR DEFAMATION WITHOUT
ADEQUATE OPPORTUNITY FOR DEFENSE, A RELEVANT DISTINCTION IS BETWEEN
THOSE PROCEEDINGS WHICH ARE PRELIMINARIES TO OFFICIAL JUDGMENTS ON
INDIVIDUALS AND THOSE, LIKE THE INVESTIGATION OF THIS COMMISSION,
CHARGED WITH RESPONSIBILITY TO GATHER INFORMATION AS A SOLID FOUNDATION
FOR LEGISLATIVE ACTION.  JUDGMENTS BY THE COMMISSION CONDEMNING OR
STIGMATIZING INDIVIDUALS ARE NOT CALLED FOR.  WHEN OFFICIAL
PRONOUNCEMENTS ON INDIVIDUALS PURPORT TO REST ON EVIDENCE AND
INVESTIGATION, IT IS RIGHT TO DEMAND THAT THOSE SO ACCUSED BE GIVEN A
FULL OPPORTUNITY FOR THEIR DEFENSE IN SUCH INVESTIGATION, EXCEPTING, OF
COURSE, GRAND JURY INVESTIGATIONS.  THE FUNCTIONS OF THAT INSTITUTION
AND ITS CONSTITUTIONAL PREROGATIVES ARE ROOTED IN LONG CENTURES OF
ANGLO-AMERICAN HISTORY.  ON THE OTHER HAND, TO REQUIRE THE INTRODUCTION
OF ADVERSARY CONTESTS RELEVANT TO DETERMINATION OF INDIVIDUAL GUILT
INTO WHAT IS IN EFFECT A LEGISLATIVE INVESTIGATION IS BOUND TO THWART
IT BY TURNING IT INTO A SERIOUS DIGRESSION FROM ITS PURPOSE. 

THE CASES IN WHICH THIS COURT HAS RECENTLY CONSIDERED CLAIMS TO
PROCEDURAL RIGHTS IN INVESTIGATIVE INQUIRIES ALLEGED TO DEAL UNFAIRLY
WITH THE REPUTATION OF INDIVIDUALS OR TO INCRIMINATE THEM, HAVE MADE
CLEAR THAT THE FAIRNESS OF THEIR PROCEDURES IS TO BE JUDGED IN LIGHT OF
THE PURPOSE OF THE INQUIRY, AND, MORE PARTICULARLY, WHETHER ITS
ESSENTIAL OBJECTIVE IS OFFICIAL JUDGMENT ON INDIVIDUALS UNDER
SCRUTINY.  SUCH A CASE WAS GREENE V. MCELROY, 360 U.S. 474.  THERE THE
INQUIRY WAS FOR THE PURPOSE OF DETERMINING WHETHER THE SECURITY
CLEARANCE OF A PARTICULAR PERSON WAS TO BE REVOKED.  A DENIAL OF
CLEARANCE WOULD SHUT HIM OFF FROM THE OPPORTUNITY OF ACCESS TO A WIDE
FIELD OF EMPLOYMENT.   THE COURT CONCLUDED THAT SERIOUS CONSTITUTIONAL
QUESTIONS WERE RAISED BY DENIAL OF THE RIGHTS TO CONFRONT ACCUSATORY
WITNESSES AND TO HAVE ACCESS TO UNFAVORABLE REPORTS ON THE BASIS OF
WHICH THE VERY LIVELIHOOD OF AN INDIVIDUAL WOULD BE GRAVELY
JEOPARDIZED.  AGAIN, JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH,
341 U.S. 123, PRESENTED A CONTRASTING SITUATION TO THE ONE BEFORE US.
THE GOVERNMENT THERE SOUGHT THROUGH THE ATTORNEY GENERAL TO DESIGNATE
ORGANIZATIONS AS "COMMUNIST," THUS FURNISHING GROUNDS ON WHICH TO
DISCHARGE THEIR MEMBERS FROM GOVERNMENT EMPLOYMENT.  NO NOTICE WAS
GIVEN OF THE CHARGES AGAINST THE ORGANIZATIONS NOR WERE THEY GIVEN AN
OPPORTUNITY TO ESTABLISH THE INNOCENCE OF THEIR AIMS AND ACTS.  IT WAS
WELL WITHIN THE REALITIES TO SAY OF WHAT WAS UNDER SCRUTINY IN JOINT
ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH THAT "IT WOULD BE BLINDNESS
...  NOT TO RECOGNIZE THAT IN THE CONDITIONS OF OUR TIME SUCH
DESIGNATION DRASTICALLY RESTRICTS THE ORGANIZATIONS, IF IT DOES NOT
PROSCRIBE THEM."  341 U.S., AT 161 (CONCURRING OPINION).  AND THE
PROCEDURE WHICH WAS FOUND CONSTITUTIONALLY WANTING IN THAT CASE COULD
BE FAIRLY CHARACTERIZED AS ACTION "TO MAIM OR DECAPITATE, ON THE MERE
SAY-SO OF THE ATTORNEY GENERAL, AN ORGANIZATION TO ALL OUTWARD-SEEMING
ENGAGED IN LAWFUL OBJECTIVES  ...  ."  IBID.  NOTHING LIKE SUCH
CHARACTERIZATION CAN REMOTELY BE MADE REGARDING THE PROCEDURE FOR THE
PROPOSED INQUIRY OF THE COMMISSION ON CIVIL RIGHTS. 

CONTRARIWISE, DECISIONS ARISING UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT STRONGLY SUPPORT THE CONSTITUTIONALITY OF WHAT IS
HERE CHALLENGED, WHERE THE PURPOSES WERE AS HERE TRULY
INVESTIGATORIAL.  THUS, IN RE GROBAN, 352 U.S. 330, SUSTAINED INQUIRY
BY THE OHIO STATE FIRE MARSHAL INTO THE CAUSES OF A FIRE WHILE
EXCLUDING COUNSEL OF SUBPOENAED WITNESSES ON WHOSE PREMISES THE FIRE
OCCURRED.  THE COURT SO HELD EVEN THOUGH THE FIRE MARSHAL HAD
AUTHORITY, AFTER QUESTIONING A WITNESS, TO ARREST HIM IF HE BELIEVED
THERE WAS SUFFICIENT EVIDENCE TO CHARGE HIM WITH ARSON.  THE GUIDING
CONSIDERATION WAS THAT, ALTHOUGH SUSPECTS MIGHT BE DISCOVERED, THE
ESSENTIAL PURPOSE OF THE FIRE MARSHAL'S INQUIRY WAS NOT TO ADJUDICATE
INDIVIDUAL RESPONSIBILITY FOR THE FIRE BUT TO PURSUE A LEGISLATIVE
POLICY OF FIRE PREVENTION THROUGH THE DISCOVERY OF THE ORIGINS OF
FIRES.  THIS DECISION WAS APPLIED IN ANONYMOUS NO. 6 V. BAKER, 360 U.S.
287, WHICH CONCERNED "A STATE JUDICIAL INQUIRY INTO ALLEGED IMPROPER
PRACTICES AT THE LOCAL BAR" (AT P. 288).  REJECTING THE CLAIM BASED ON
THE CONSIDERATION THAT THE INQUIRY MIGHT SERVE AS A GROUNDWORK FOR THE
PROSECUTION OF WITNESSES CALLED BEFORE IT, THE COURT APPLIED GROBAN
BECAUSE THE INQUIRY WAS A GENERAL ONE AND APPELLANTS WERE BEFORE IT NOT
AS POTENTIAL ACCUSED BUT "SOLELY AS WITNESSES."  THE PROPOSED
INVESTIGATION OF THE COMMISSION ON CIVIL RIGHTS IS MUCH LESS LIKELY TO
RESULT IN PROSECUTION OF WITNESSES BEFORE IT THAN WERE THE
INVESTIGATIONS IN GROBAN AND BAKER.  JUST AS SURELY, THERE IS NOT
PRESENT IN THE CASES NOW BEFORE US A DRASTIC OFFICIAL JUDGMENT, AS IN
GREENE AND JOINT ANTI-FASCIST REFUGEE COMMITTEE, WHERE THE COURT DEEMED
IT NECESSARY TO INSURE THAT FULL OPPORTUNITY FOR DEFENSE BE ACCORDED TO
INDIVIDUALS WHO WERE THE SPECIFIC, ADVERSE TARGETS OF THE SECRET
PROCESS. 

MOREOVER, THE LIMITED, INVESTIGATORIAL SCOPE OF THE CHALLENGED
HEARING IS CAREFULLY HEDGED IN WITH PROTECTIONS FOR THE PLAINTIFFS. 
THEY WILL HAVE THE RIGHT TO BE ACCOMPANIED BY COUNSEL.  THE RULES
INSURE THAT THEY WILL BE MADE AWARE OF THE SUBJECT OF THE HEARINGS. 
THEY WILL HAVE THE RIGHT TO APPEAL TO THE COMMISSION'S POWER TO
SUBPOENA ADDITIONAL WITNESSES.  THE RULES SIGNIFICANTLY DIRECT THE
COMMISSION TO ABSTAIN FROM PUBLIC EXPOSURE BY TAKING IN EXECUTIVE
SESSION ANY EVIDENCE OR TESTIMONY TENDING "TO DEFAME, DEGRADE, OR
INCRIMINATE ANY PERSON."  A PERSON SO AFFECTED IS GIVEN THE RIGHT TO
READ SUCH EVIDENCE AND TO REPLY TO IT.  THESE DETAILED PROVISIONS ARE
OBVIOUSLY DESIGNED AS SAFEGUARDS AGAINST INJURY TO PERSONS WHO APPEAR
IN PUBLIC HEARINGS BEFORE THE COMMISSION.  THE PROVISION FOR SCREENING
DEFAMATORY AND INCRIMINATORY TESTIMONY IN ORDER TO KEEP IT FROM THE
PUBLIC MAY WELL BE CONTRASTED WITH THE PROCEDURE IN THE JOINT ANTI
FASCIST CASE, WHERE THE VERY PURPOSE OF THE INQUIRY WAS TO MAKE AN
OFFICIAL JUDGMENT THAT CERTAIN ORGANIZATIONS WERE "COMMUNIST."  SUCH
CONDEMNATION OF AN ORGANIZATION WOULD OF COURSE TAINT ITS MEMBERS.  THE
RULES OF THE COMMISSION MANIFEST A SENSE OF ITS RESPONSIBILITY IN
CARRYING OUT THE LIMITED INVESTIGATORIAL TASK CONFIDED TO IT.  IT IS
NOT A CONSTITUTIONAL REQUIREMENT THAT THE COMMISSION BE ARGUMENTATIVELY
TURNED INTO A FORUM FOR TRIAL OF THE TRUTH OF PARTICULAR ALLEGATIONS OF
DENIAL OF VOTING RIGHTS IN ORDER THEREBY TO INVALIDATE ITS
FUNCTIONING.  SUCH AN INADMISSIBLE TRANSFORMATION OF THE COMMISSION'S
FUNCTION IS IN ESSENCE WHAT IS INVOLVED IN THE CLAIMS OF THE
PLAINTIFFS.  CONGRESS HAS ENTRUSTED THE COMMISSION WITH A VERY
DIFFERENT ROLE - THAT OF INVESTIGATING AND APPRAISING GENERAL
CONDITIONS AND REPORTING THEM TO CONGRESS SO AS TO INFORM THE
LEGISLATIVE JUDGMENT.  RESORT TO A LEGISLATIVE COMMISSION AS A VEHICLE
FOR PROPOSING WELL-FOUNDED LEGISLATION AND RECOMMENDING ITS PASSAGE TO
CONGRESS HAS AMPLE PRECEDENT. 

FINALLY IT SHOULD BE NOTED THAT ARGUMENTS DIRECTED EITHER AT THE
ASSUMED NOVELTY OF EMPLOYING THE COMMISSION IN THE AREA OF LEGISLATIVE
INTEREST WHICH LED CONGRESS TO ITS ESTABLISHMENT, OR AT THE FACT THAT
THE SOURCE OF THE COMMISSION'S PROCEDURES WERE THOSE LONG USED BY
COMMITTEES OF CONGRESS, ARE NOT PARTICULARLY RELEVANT.  HISTORY MAY
SATISFY CONSTITUTIONALITY, BUT CONSTITUTIONALITY NEED NOT PRODUCE THE
TITLE DEEDS OF HISTORY.  MERE AGE MAY ESTABLISH DUE PROCESS, BUT DUE
PROCESS DOES NOT PRECLUDE NEW ENDS OF GOVERNMENT OR NEW MEANS FOR
ACHIEVING THEM.  SINCE THE COMMISSION HAS, WITHIN ITS LEGISLATIVE
FRAMEWORK, PROVIDED PROCEDURAL SAFEGUARDS APPROPRIATE TO ITS PROPER
FUNCTION, CLAIMS OF UNFAIRNESS OFFENDING DUE PROCESS FALL.  THE
PROPOSED SHREVEPORT HEARING FULLY COMPORTS WITH THE CONSTITUTION AND
THE LAW.  ACCORDINGLY I JOIN THE JUDGMENT OF THE COURT IN REVERSING THE
DISTRICT COURT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, CONCURRING. 

IN JOINING THE COURT'S OPINION, AS I DO, I DESIRE TO ADD THAT IN MY
VIEW THE PRINCIPLES ESTABLISHED BY IN RE GROBAN, 352 U.S. 330, AND
ANONYMOUS V. BAKER, 360 U.S. 287, ARE DISPOSITIVE OF THE ISSUES HEREIN
IN THE COMMISSION'S FAVOR.    MR. JUSTICE DOUGLAS, WITH WHOM MR.
JUSTICE BLACK CONCURS, DISSENTING. 

WITH GREAT DEFERENCE TO MY BRETHREN I DISSENT FROM A REVERSAL OF
THESE JUDGMENTS. 

THE CAUSE WHICH THE MAJORITY OPINION SERVES IS, ON THE SURFACE, ONE
WHICH A PERSON DEDICATED TO CONSTITUTIONAL PRINCIPLES COULD NOT
QUESTION.  AT THE BOTTOM OF THIS CONTROVERSY IS THE RIGHT TO VOTE
PROTECTED BY THE FIFTEENTH AMENDMENT.  THAT AMENDMENT WITHHOLDS POWER
FROM EITHER THE STATES OR THE UNITED STATES TO DENY OR ABRIDGE THE
RIGHT TO VOTE "ON ACCOUNT OF RACE, COLOR, OR PREVIOUS CONDITION OF
SERVITUDE."  THIS RIGHT STANDS BEYOND THE REACH OF GOVERNMENT.  ONLY
VOTING QUALIFICATIONS THAT CONFORM TO THE STANDARDS PROSCRIBED BY THE
FIFTEENTH AMENDMENT MAY BE PRESCRIBED.  SEE LASSITER V. NORTHAMPTON
ELECTION BOARD, 360 U.S. 45.  AS STATED IN TERRY V. ADAMS, 345 U.S.
461, 468, "THE AMENDMENT, THE CONGRESSIONAL ENACTMENT AND THE CASES
MAKE EXPLICIT THE RULE AGAINST RACIAL DISCRIMINATION IN THE CONDUCT OF
ELECTIONS."  BY DEMOCRATIC VALUES THIS RIGHT IS FUNDAMENTAL, FOR THE
VERY EXISTENCE OF GOVERNMENT DEDICATED TO THE CONCEPT "OF THE PEOPLE,
BY THE PEOPLE, FOR THE PEOPLE," TO USE LINCOLN'S WORDS, DEPENDS ON THE
FRANCHISE. 

YET IMPORTANT AS THESE CIVIL RIGHTS ARE, IT WILL NOT DO TO SACRIFICE
OTHER CIVIL RIGHTS IN ORDER TO PROTECT THEM.  WE LIVE AND WORK UNDER A
CONSTITUTION.  THE TEMPTATION OF MANY MEN OF GOODWILL IS TO CUT
CORNERS, TAKE SHORT CUTS, AND REACH THE DESIRED END REGARDLESS OF THE
MEANS.  WORTHY AS I THINK THE ENDS ARE WHICH THE CIVIL RIGHTS
COMMISSION ADVANCES IN THESE CASES, I THINK THE PARTICULAR MEANS USED
ARE UNCONSTITUTIONAL. 

THE COMMISSION, CREATED BY CONGRESS, IS A PART OF "THE EXECUTIVE
BRANCH" OF THE GOVERNMENT, 71 STAT. 634, 42 U.S.C. SEC. 1975(A), WHOSE
MEMBERS ARE APPOINTED BY THE PRESIDENT AND CONFIRMED BY THE SENATE. 
SEC. 1975(A).  IT IS GIVEN BROAD POWERS OF INVESTIGATION WITH THE VIEW
OF MAKING A REPORT WITH "FINDINGS AND RECOMMENDATIONS" TO THE
CONGRESS.  SEC. 1975C.  IT IS EMPOWERED, AMONG OTHER THINGS, TO: 

"INVESTIGATE ALLEGATIONS IN WRITING UNDER OATH OR AFFIRMATION THAT
CERTAIN CITIZENS OF THE UNITED STATES ARE BEING DEPRIVED OF THEIR RIGHT
TO VOTE AND HAVE THAT VOTE COUNTED BY REASON OF THEIR COLOR, RACE,
RELIGION, OR NATIONAL ORIGIN; WHICH WRITING, UNDER OATH OR AFFIRMATION,
SHALL SET FORTH THE FACTS UPON WHICH SUCH BELIEF OR BELIEFS ARE
BASED."  SEC. 1975(A)(1). 

COMPLAINTS HAVE BEEN FILED WITH THE COMMISSION CHARGING RESPONDENTS,
WHO ARE REGISTRARS OF VOTERS IN LOUISIANA, WITH DEPRIVING PERSONS OF
THEIR VOTING RIGHTS BY REASON OF THEIR COLOR.  IF THESE CHARGES ARE
TRUE AND IF THE REGISTRARS ACTED WILLFULLY (SEE SCREWS V. UNITED
STATES, 325 U.S. 91), THE REGISTRARS ARE CRIMINALLY RESPONSIBLE UNDER A
FEDERAL STATUTE WHICH SUBJECTS TO FINE AND IMPRISONMENT (FN1) ANYONE
WHO WILLFULLY DEPRIVES A CITIZEN OF ANY RIGHT UNDER THE CONSTITUTION
"BY REASON OF HIS COLOR, OR RACE."  (FN2)  18 U.S.C. SEC. 242. 

THE INVESTIGATION AND HEARING BY THE COMMISSION ARE THEREFORE
NECESSARILY AIMED AT DETERMINING IF THIS CRIMINAL LAW HAS BEEN
VIOLATED.  THE SERIOUS AND INCRIMINATING NATURE OF THE CHARGE AND THE
DISCLOSURE OF FACTS CONCERNING IT ARE RECOGNIZED BY THE CONGRESS, FOR
THE ACT REQUIRES CERTAIN PROTECTIVE PROCEDURES TO BE ADOPTED WHERE
DEFAMATORY, DEGRADING, OR INCRIMINATING EVIDENCE MAY BE ADDUCED. 

"IF THE COMMISSION DETERMINES THAT EVIDENCE OR TESTIMONY AT ANY
HEARING MAY TEND TO DEFAME, DEGRADE, OR INCRIMINATE ANY PERSON, IT
SHALL (1) RECEIVE SUCH EVIDENCE OR TESTIMONY IN EXECUTIVE SESSION; (2)
AFFORD SUCH PERSON AN OPPORTUNITY VOLUNTARILY TO APPEAR AS A WITNESS;
AND (3) RECEIVE AND DISPOSE OF REQUESTS FROM SUCH PERSON TO SUBPENA
ADDITIONAL WITNESSES."  42 U.S.C. SEC. 1975AE). 

YET THESE SAFEGUARDS, GIVEN AS A MATTER OF GRACE, DO NOT IN MY
JUDGMENT DISPOSE OF THE CONSTITUTIONAL DIFFICULTY.  FIRST, IT IS THE
COMMISSION'S JUDGMENT, NOT THE SUSPECT'S, THAT DETERMINES WHETHER THE
HEARING SHALL BE SECRET OR PUBLIC.  THUS THIS PROCEDURE HAS ONE OF THE
EVILS PROTESTED AGAINST IN IN RE GROBAN, 352 U.S. 330, 337, 348-353
(DISSENTING OPINION).  THE SECRECY OF THE INQUISITION ONLY UNDERLINES
ITS INHERENT VICES:  "SECRET INQUISITIONS ARE DANGEROUS THINGS JUSTLY
FEARED BY FREE MEN EVERYWHERE.  THEY ARE THE BREEDING PLACE FOR
ARBITRARY MISUSE OF OFFICIAL POWER.  THEY ARE OFTEN THE BEGINNING OF
TYRANNY AS WELL AS INDISPENSABLE INSTRUMENTS FOR ITS SURVIVAL.  MODERN
AS WELL AS ANCIENT HISTORY BEARS WITNESS THAT BOTH INNOCENT AND GUILTY
HAVE BEEN SEIZED BY OFFICERS OF THE STATE AND WHISKED AWAY FOR SECRET
INTERROGATION OR WORSE UNTIL THE GROUNDWORK HAS BEEN SECURELY LAID FOR
THEIR INEVITABLE CONVICTION."  ID., AT 352-353.  AS SAID IN DISSENT IN
ANONYMOUS V. BAKER, 360 U.S. 287, 299, "SECRETLY COMPELLED TESTIMONY
DOES NOT LOSE ITS HIGHLY DANGEROUS POTENTIALITIES MERELY BECAUSE" IT IS
TAKEN IN PRELIMINARY PROCEEDINGS.  SECOND, THE PROCEDURE SEEMS TO ME
PATENTLY UNCONSTITUTIONAL WHETHER THE HEARING IS PUBLIC OR SECRET. 
UNDER THE COMMISSION'S RULES THE ACCUSED IS DEPRIVED OF THE RIGHT TO
NOTICE OF THE CHARGES AGAINST HIM AND THE OPPORTUNITY OF CROSS
EXAMINATION.  THIS STATUTORY PROVISION, FASHIONED TO PROTECT WITNESSES
AS SUCH RATHER THAN A PROSPECTIVE DEFENDANT, PERMITS THE COMMISSION TO
EXCLUDE THE ACCUSED ENTIRELY FROM THE HEARING AND DENY HIM THE
OPPORTUNITY EVEN TO OBSERVE THE TESTIMONY OF HIS ACCUSERS.  AND EVEN IF
THE COMMISSION WERE INCLINED IN A PARTICULAR CASE TO PROTECT THE
ACCUSED FROM THE OPPROBRIUM LIKELY TO FLOW FROM THE TESTIMONY OF
INDIVIDUAL WITNESSES AGAINST HIM BY HOLDING SECRET SESSIONS, THIS WOULD
BE LITTLE COMFORT AFTER THE COMMISSION'S FINDINGS, BASED ON SUCH
UNTESTED EVIDENCE, WERE PUBLICIZED ACROSS THE NATION. 

I ASSUME THAT NO COURT WOULD BE JUSTIFIED IN ENJOINING A
CONGRESSIONAL COMMITTEE COMPOSED OF SENATORS OR CONGRESSMEN THAT
ENGAGED IN THIS KIND OF CONDUCT.  THIS IS NOT THAT KIND OF A
COMMITTEE.   MOREOVER, EVEN IF IT WERE AND IF PRIVATE RIGHTS WERE
INFRINGED BY REASON OF THE COMMITTEE'S VIOLATIONS OF THE CONSTITUTION,
THERE ARE CIRCUMSTANCES WHEN REDRESS CAN BE HAD IN THE COURTS. 
KILBOURN V. THOMPSON, 103 U.S. 168.  CF. GREENFIELD V. RUSSEL, 292 ILL.
392, 127 N.E. 102; OPINION OF THE JUSTICES, 96 N.H. 530, 73 A.2D 433. 
THE JUDICIARY ALSO BECOMES IMPLICATED WHEN THE CONGRESS ASKS THE COURTS
TO BACK UP WHAT ITS COMMITTEES HAVE DONE; OR WHEN A VICTIM OF AN
INVESTIGATION ASKS RELIEF FROM PUNISHMENT IMPOSED ON HIM.  THEN THE
PROCEDURAL SAFEGUARDS OF THE BILL OF RIGHTS COME INTO FULL PLAY.  SEE
WATKINS V. UNITED STATES, 354 U.S. 178. 

THE CIVIL RIGHTS COMMISSION, HOWEVER, IS NOT A CONGRESSIONAL
COMMITTEE OF SENATORS OR CONGRESSMEN; NOR IS IT AN ARM OF CONGRESS.  IT
IS AN ARM OF THE EXECUTIVE.  THERE IS, IN MY VIEW, ONLY ONE WAY THE
CHIEF EXECUTIVE MAY MOVE AGAINST A PERSON ACCUSED OF A CRIME AND DENY
HIM THE RIGHT OF CONFRONTATION AND CROSS-EXAMINATION AND THAT IS BY THE
GRAND JURY. 

THE GRAND JURY IS THE ACCUSATORY BODY IN FEDERAL LAW AS PROVIDED BY
THE FIFTH AMENDMENT.  THE ESSENCE OF THE INSTITUTION OF THE GRAND JURY
WAS STATED BY 1 STEPHEN, HISTORY OF CRIMINAL LAW OF ENGLAND, 252:  "THE
BODY OF THE COUNTRY ARE THE ACCUSERS."  THOMAS ERSKINE STATED THE
MATTER ACCURATELY AND ELOQUENTLY IN JONES V. SHIPLEY, 21 HOW.  ST. TR.
847, 977. 

"IT IS UNNECESSARY TO REMIND YOUR LORDSHIPS, THAT, IN A CIVIL CASE,
THE PARTY WHO CONCEIVES HIMSELF AGGRIEVED, STATES HIS COMPLAINT TO THE
COURT, - AVAILS HIMSELF AT HIS OWN PLEASURE OF ITS PROCESS, - COMPELS
AN ANSWER FROM THE DEFENDANT BY ITS AUTHORITY, - OR TAKING THE CHARGE
PRO CONFESSO AGAINST HIM ON HIS DEFAULT, IS ENTITLED TO FINAL JUDGMENT
AND EXECUTION FOR HIS DEBT, WITHOUT ANY INTERPOSITION OF A JURY.  BUT
IN CRIMINAL CASES IT IS OTHERWISE; THE COURT HAS NO COGNIZANCE OF THEM,
WITHOUT LEAVE FROM THE PEOPLE FORMING A GRAND INQUEST.  IF A MAN WERE
TO COMMIT A CAPITAL OFFENCE IN THE FACE OF ALL THE JUDGES OF ENGLAND,
THEIR UNITED AUTHORITY COULD NOT PUT HIM UPON HIS TRIAL:  - THEY COULD
FILE NO COMPLAINT AGAINST HIM, EVEN UPON THE RECORDS OF THE SUPREME
CRIMINAL COURT, BUT COULD ONLY COMMIT HIM FOR SAFE CUSTODY, WHICH IS
EQUALLY COMPETENT TO EVERY COMMON JUSTICE OF THE PEACE:  - THE GRAND
JURY ALONE COULD ARRAIGN HIM, AND IN THEIR DISCRETION MIGHT LIKEWISE
FINALLY DISCHARGE HIM, BY THROWING OUT THE BILL, WITH THE NAMES OF ALL
YOUR LORDSHIPS AS WITNESSES ON THE BACK OF IT.  IF IT SHALL BE SAID,
THAT THIS EXCLUSIVE POWER OF THE GRAND JURY DOES NOT EXTEND TO LESSER
MISDEMEANORS, WHICH MAY BE PROSECUTED BY INFORMATION; I ANSWER, THAT
FOR THAT VERY REASON IT BECOMES DOUBLY NECESSARY TO PRESERVE THE POWER
OF THE OTHER JURY WHICH IS LEFT." 

THIS IDEA, THOUGH UTTERED IN 1783, IS MODERN AND RELEVANT HERE.  THE
GRAND JURY BRINGS SUSPECTS BEFORE NEIGHBORS, NOT STRANGERS.  JUST
RECENTLY IN STIRONE V. UNITED STATES, 361 U.S. 212, 218, WE SAID, "THE
VERY PURPOSE OF THE REQUIREMENT THAT A MAN BE INDICTED BY GRAND JURY IS
TO LIMIT HIS JEOPARDY TO OFFENSES CHARGED BY A GROUP OF HIS FELLOW
CITIZENS ACTING INDEPENDENTLY OF EITHER PROSECUTING ATTORNEY OR
JUDGE." 

THIS COMMISSION HAS NO SUCH GUARANTEE OF FAIRNESS.  ITS MEMBERS ARE
NOT DRAWN FROM THE NEIGHBORHOOD.  THE MEMBERS CANNOT BE AS INDEPENDENT
AS GRAND JURIES BECAUSE THEY MEET NOT FOR ONE OCCASION ONLY; THEY DO A
CONTINUING JOB FOR THE EXECUTIVE AND, IF HISTORY IS A GUIDE, TEND TO
ACQUIRE A VESTED INTEREST IN THAT ROLE. 

THE GRAND JURY, ADOPTED AS A SAFEGUARD AGAINST "HASTY, MALICIOUS, AND
OPPRESSIVE" ACTION BY THE FEDERAL GOVERNMENT, EX PARTE BAIN, 121 U.S.
1, 12, STANDS AS AN IMPORTANT SAFEGUARD TO THE CITIZEN AGAINST OPEN AND
PUBLIC ACCUSATIONS OF CRIME.  TODAY THE GRAND JURY MAY ACT ON ITS OWN
VOLITION, THOUGH ORIGINALLY SPECIFIC CHARGES BY PRIVATE PROSECUTORS
WERE THE BASIS OF ITS ACTION.  HALE V. HENKEL, 201 U.S. 43, 59-60.  IT
HAS BROAD INVESTIGATIONAL POWERS TO LOOK INTO WHAT MAY BE OFFENSIVE
AGAINST FEDERAL CRIMINAL LAW.  UNITED STATES V. JOHNSON, 319 U.S. 503,
510.  AN INDICTMENT RETURNED BY A GRAND JURY MAY NOT BE CHALLENGED
BECAUSE IT RESTS WHOLLY ON HEARSAY.  COSTELLO V. UNITED STATES, 350
U.S. 359, 361-362.  AN ACCUSED IS NOT ENTITLED TO A HEARING BEFORE A
GRAND JURY, NOR TO PRESENT EVIDENCE, NOR TO BE REPRESENTED BY COUNSEL;
AND A GRAND JURY MAY ACT SECRETLY - A PROCEDURE NORMALLY ABHORRENT TO
DUE PROCESS.  IN THIS COUNTRY AS IN ENGLAND OF OLD, THE GRAND JURY IS
CONVENED AS A BODY OF LAYMEN, FREE FROM TECHNICAL RULES, ACTING IN
SECRET, PLEDGED TO INDICT NO ONE BECAUSE OF PREJUDICE AND TO FREE NO
ONE BECAUSE OF SPECIAL FAVOR.  COSTELLO V. UNITED STATES, SUPRA, AT
362. 

GRAND JURIES HAVE THEIR DEFECTS.  THEY DO NOT ALWAYS RETURN A TRUE
BILL, FOR WHILE THE PREJUDICES OF THE COMMUNITY MAY RADIATE THROUGH
THEM, THEY ALSO HAVE THE SAVING QUALITY OF BEING FAMILIAR WITH THE
PEOPLE INVOLVED.  THEY ARE THE ONLY ACCUSATORY BODY IN THE FEDERAL
GOVERNMENT THAT IS RECOGNIZED BY THE CONSTITUTION.  I WOULD ALLOW NO
OTHER ENGINE OF GOVERNMENT, EITHER EXECUTIVE OR LEGISLATIVE, TO TAKE
THEIR PLACE - AT LEAST WHEN THE RIGHT OF CONFRONTATION AND CROSS
EXAMINATION ARE DENIED THE ACCUSED AS IS DONE IN THESE CASES. 

THE MIGHT AND POWER OF THE FEDERAL GOVERNMENT HAVE NO EQUAL.  WHEN
ITS GUNS ARE LEVELED AT A CITIZEN ON CHARGES THAT HE COMMITTED A
FEDERAL CRIME, IT IS FOR ME NO ANSWER TO SAY THAT THE ONLY PURPOSE IS
TO REPORT HIS ACTIVITIES TO THE PRESIDENT AND CONGRESS, NOT TO TURN HIM
OVER TO THE DISTRICT ATTORNEY FOR PROSECUTION.  OUR CONSTITUTION WAS
DRAWN ON THE THEORY THAT THERE ARE CERTAIN THINGS GOVERNMENT MAY NOT DO
TO THE CITIZEN AND THAT THERE ARE OTHER THINGS THAT MAY BE DONE ONLY IN
A SPECIFIC MANNER.  THE RELATIONSHIP OF THE FEDERAL GOVERNMENT TO A MAN
CHARGED WITH CRIME IS CAREFULLY DEFINED.  ITS POWER MAY BE MARSHALLED
AGAINST HIM, BUT ONLY IN A DEFINED WAY.  WHEN WE ALLOW THIS SUBSTITUTE
METHOD, WE MAKE AN INNOVATION THAT DOES NOT COMPORT WITH THAT DUE
PROCESS WHICH THE FIFTH AMENDMENT REQUIRES OF THE FEDERAL GOVERNMENT. 
WHEN THE FEDERAL GOVERNMENT PREPARES TO INQUIRE INTO CHARGES THAT A
PERSON HAS VIOLATED FEDERAL LAW, THE FIFTH AMENDMENT TELLS US HOW IT
CAN PROCEED. 

THE CIVIL RIGHTS COMMISSION, IT IS TRUE, RETURNS NO INDICTMENT.  YET
IN A REAL SENSE THE HEARINGS ON CHARGES THAT A REGISTRAR HAS COMMITTED
A FEDERAL OFFENSE ARE A TRIAL.  MOREOVER, THESE HEARINGS BEFORE THE
COMMISSION MAY BE TELEVISED OR BROADCAST ON THE RADIO.  (FN3)  IN OUR
DAY WE HAVE SEEN CONGRESSIONAL COMMITTEES PROBING INTO ALLEGED CRIMINAL
CONDUCT OF WITNESSES APPEARING ON THE TELEVISION SCREEN.  THIS IS IN
REALITY A TRIAL IN WHICH THE WHOLE NATION SITS AS A JURY.  THEIR
VERDICT DOES NOT SEND MEN TO PRISON.  BUT IT OFTEN CONDEMNS MEN OR
PRODUCES EVIDENCE TO CONVICT AND EVEN SATURATES THE NATION WITH
PREJUDICE AGAINST AN ACCUSED SO THAT A FAIR TRIAL MAY BE IMPOSSIBLE. 
AS STATED IN 37 A.B.A.J. 392 (1951), "IF SEVERAL MILLION TELEVISION
VIEWERS SEE AND HEAR A POLITICIAN, A BUSINESSMAN OR A MOVIE ACTOR
SUBJECTED TO SEARCHING INTERROGATION, WITHOUT EVER HAVING AN
OPPORTUNITY TO CROSS-EXAMINE HIS ACCUSERS OR OFFER EVIDENCE IN HIS OWN
SUPPORT, THAT MAN WILL STAND CONVICTED, OR AT LEAST SERIOUSLY
COMPROMISED, IN THE PUBLIC MIND, WHATEVER THE LATER FORMAL FINDINGS MAY
BE."  THE USE OF THIS PROCEDURE PUTS IN JEOPARDY OUR TRADITIONAL
CONCEPT OF THE WAY MEN SHOULD BE TRIED AND REPLACES IT WITH "A NEW
CONCEPT OF GUILT BASED ON INQUISITORIAL DEVICES."  NOTE, 26 TEMP.  L.Q.
70, 73. 

YET WHETHER THE HEARING IS TELEVISED OR NOT IT WILL HAVE ALL THE
EVILS OF A LEGISLATIVE TRIAL.  "THE LEGISLATIVE TRIAL," WROTE ALAN
BARTH IN GOVERNMENT BY INVESTIGATION (1955) P. 81, "IS A DEVICE FOR
CONDEMNING MEN WITHOUT THE FORMALITIES OF DUE PROCESS."  AND HE WENT ON
TO SAY:    "THE LEGISLATIVE TRIAL SERVES THREE DISTINCT THOUGH RELATED
PURPOSES:  (1) IT CAN BE USED TO PUNISH CONDUCT WHICH IS NOT CRIMINAL;
(2) IT CAN BE USED TO PUNISH SUPPOSEDLY CRIMINAL CONDUCT IN THE ABSENCE
OF EVIDENCE REQUISITE TO CONVICTION IN A COURT OF LAW; AND (3) IT CAN
BE USED TO DRIVE OR TRAP PERSONS SUSPECTED OF 'DISLOYALTY' INTO
COMMITTING SOME COLLATERAL CRIME SUCH AS PERJURY OR CONTEMPT OF
CONGRESS, WHICH CAN THEN BE SUBJECTED TO PUNISHMENT THROUGH A JUDICIAL
PROCEEDING.  'IT IS HARD TO GET THEM FOR THEIR CRIMINAL ACTIVITIES IN
CONNECTION WITH ESPIONAGE, BUT A WAY HAS BEEN FOUND,' SENATOR MCCARTHY
ONCE REMARKED.  'WE ARE GETTING THEM FOR PERJURY AND PUTTING SOME OF
THE WORST OF THEM AWAY.  FOR THAT REASON I HOPE EVERY WITNESS WHO COMES
HERE IS PUT UNDER OATH AND HIS TESTIMONY IS GONE OVER WITH A FINE-TOOTH
COMB, AND IF WE CANNOT CONVICT SOME OF THEM FOR THEIR DISLOYAL
ACTIVITIES, PERHAPS WE CAN CONVICT SOME OF THEM FOR PERJURY.'  THAT
THEY MAY HAVE BEEN GUILTY OF NO VIOLATION OF LAW IN THE FIRST PLACE
SEEMS OF NO CONCERN TO THE SENATOR."  ID., AT 83.  AND SEE TELFORD
TAYLOR, GRAND INQUEST (1955). 

BARTH WROTE OF HEARINGS IN THE SO-CALLED LOYALTY CASES.  BUT THE
REASONS APPLY TO ANY HEARING WHERE A PERSON'S JOB OR LIBERTY OR
REPUTATION IS AT STAKE.  BARTH WROTE OF HEARINGS HELD BY CONGRESSIONAL
COMMITTEES.  YET THE EVIL IS COMPOUNDED WHERE THE "LEGISLATIVE TRIAL"
HAS BECOME A "COMMISSION TRIAL."  AND WHILE I ASSUME THAT A COURT WOULD
NOT ENJOIN THE TYPICAL CONGRESSIONAL COMMITTEE, IT IS DUTY BOUND TO
KEEP COMMISSIONS WITHIN LIMITS, WHEN ITS JURISDICTION IS PROPERLY
INVOKED. 

THE RIGHT TO KNOW THE CLAIMS ASSERTED AGAINST ONE AND TO CONTEST THEM
- TO BE HEARD - TO CONDUCT A CROSS-EXAMINATION - THESE ARE ALL IMPLICIT
IN OUR CONCEPT OF "A FULL AND FAIR HEARING" BEFORE ANY ADMINISTRATIVE
AGENCY, AS THE COURT IN MORGAN V. UNITED STATES, 304 U.S. 1, 18,
EMPHASIZED.  WE SPOKE THERE IN THE CONTEXT OF CIVIL LITIGATION WHERE
PROPERTY WAS AT STAKE.  HERE THE NEED FOR ALL THE PROTECTIVE DEVICES OF
A FAIR HEARING IS GREATER.  FOR ONE'S JOB AND PERHAPS HIS LIBERTY ARE
HINGED ON THESE HEARINGS. 

WE SPOKE IN THE TRADITION OF THE MORGAN CASE ONLY RECENTLY IN GREENE
V. MCELROY, 360 U.S. 474, 496-497. 

"CERTAIN PRINCIPLES HAVE REMAINED RELATIVELY IMMUTABLE IN OUR
JURISPRUDENCE.  ONE OF THESE IS THAT WHERE GOVERNMENTAL ACTION
SERIOUSLY INJURES AN INDIVIDUAL, AND THE REASONABLENESS OF THE ACTION
DEPENDS ON FACT FINDINGS, THE EVIDENCE USED TO PROVE THE GOVERNMENT'S
CASE MUST BE DISCLOSED TO THE INDIVIDUAL SO THAT HE HAS AN OPPORTUNITY
TO SHOW THAT IT IS UNTRUE.  WHILE THIS IS IMPORTANT IN THE CASE OF
DOCUMENTARY EVIDENCE, IT IS EVEN MORE IMPORTANT WHERE THE EVIDENCE
CONSISTS OF THE TESTIMONY OF INDIVIDUALS WHOSE MEMORY MIGHT BE FAULTY
OR WHO, IN FACT, MIGHT BE PERJURERS OR PERSONS MOTIVATED BY MALICE,
VINDICTIVENESS, INTOLERANCE, PREJUDICE, OR JEALOUSY.  WE HAVE
FORMALIZED THESE PROTECTIONS IN THE REQUIREMENTS OF CONFRONTATION AND
CROSS-EXAMINATION.  THEY HAVE ANCIENT ROOTS.  THEY FIND EXPRESSION IN
THE SIXTH AMENDMENT WHICH PROVIDES THAT IN ALL CRIMINAL CASES THE
ACCUSED SHALL ENJOY THE RIGHT 'TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM.'  THIS COURT HAS BEEN ZEALOUS TO PROTECT THESE RIGHTS FROM
EROSION.  IT HAS SPOKEN OUT NOT ONLY IN CRIMINAL CASES,  ... BUT ALSO
IN ALL TYPES OF CASES WHERE ADMINISTRATIVE AND REGULATORY ACTIONS WERE
UNDER SCRUTINY." 

WE SPOKE THERE IN A CONTEXT WHERE MEN WERE BEING DEPRIVED OF THEIR
JOBS AS A RESULT OF INVESTIGATIONS INTO THEIR LOYALTY.  CERTAINLY NO
LESS IS REQUIRED IF HEARINGS ARE TO BE HELD ON CHARGES THAT A PERSON
HAS VIOLATED A FEDERAL LAW. 

RESPONDENTS ASK NO MORE THAN THE RIGHT TO KNOW THE CHARGES, TO BE
CONFRONTED WITH THE ACCUSER, AND TO CROSS-EXAMINE HIM.  ABSENT THESE
RIGHTS, THEY ASK FOR AN INJUNCTION.  IN THE GREENE CASE WE SAID THESE
RIGHTS WERE AVAILABLE "WHERE GOVERNMENTAL ACTION SERIOUSLY INJURES AN
INDIVIDUAL."  360 U.S., AT 496.  INJURY IS PLAIN AND OBVIOUS HERE -
INJURY OF A NATURE FAR MORE SERIOUS THAN MERELY LOSING ONE'S JOB, AS
WAS THE SITUATION IN THE GREENE CASE.  IF THE HEARINGS ARE TO BE
WITHOUT THE SAFEGUARDS WHICH DUE PROCESS REQUIRES OF ALL TRIALS - CIVIL
AND CRIMINAL - THERE IS ONLY ONE WAY I KNOW BY WHICH THE FEDERAL
GOVERNMENT MAY PROCEED AND THAT IS BY GRAND JURY.  IF THESE TRIALS
BEFORE THE COMMISSION ARE TO BE HELD ON CHARGES THAT THESE RESPONDENTS
ARE CRIMINALS, THE LEAST WE CAN DO IS TO ALLOW THEM TO KNOW WHAT THEY
ARE BEING TRIED FOR, AND TO CONFRONT THEIR ACCUSERS AND TO CROSS
EXAMINE THEM.  (FN4)  THIS PROTECTION WOULD BE EXTENDED TO THEM IN ANY
PRELIMINARY HEARING, EVEN IN ONE BEFORE A UNITED STATES COMMISSIONER. 
(FN5)  CONFRONTATION AND CROSS-EXAMINATION ARE SO BASIC TO OUR CONCEPT
OF DUE PROCESS (PETERS V. HOBBY, 349 U.S. 331, 351-352 (CONCURRING
OPINION)) THAT NO PROCEEDING BY AN ADMINISTRATIVE AGENCY IS A FAIR ONE
THAT DENIES THESE RIGHTS. 

REFERENCES ARE MADE TO FEDERAL STATUTES GOVERNING NUMEROUS
ADMINISTRATIVE AGENCIES SUCH AS THE FEDERAL TRADE COMMISSION AND THE
SECURITIES AND EXCHANGE COMMISSION; AND THE INFERENCE IS THAT WHAT IS
DONE IN THIS CASE CAN BE DONE THERE.  THIS COMES AS A SURPRISE TO ONE
WHO FOR SOME YEARS WAS ENGAGED IN THOSE ADMINISTRATIVE INVESTIGATIONS. 
NO EFFORT WAS EVER MADE, SO FAR AS I AM AWARE, TO COMPEL A PERSON,
CHARGED WITH VIOLATING A FEDERAL LAW, TO RUN THE GANTLET OF A HEARING
OVER HIS OBJECTION.  NO OBJECTION BASED EITHER ON THE GROUND NOW
ADVANCED NOR ON THE FIFTH AMENDMENT WAS, SO FAR AS I KNOW, EVER
OVERRULED.  INVESTIGATIONS WERE MADE; AND THEY WERE SEARCHING.  SUCH
EVIDENCE OF LAW VIOLATIONS AS WAS OBTAINED WAS TURNED OVER TO THE
DEPARTMENT OF JUSTICE.  BUT NEVER BEFORE, I BELIEVE, HAS A FEDERAL
EXECUTIVE AGENCY ATTEMPTED, OVER THE OBJECTIONS OF AN ACCUSED, TO FORCE
HIM THROUGH A HEARING TO DETERMINE WHETHER HE HAS VIOLATED A FEDERAL
LAW.  IF IT DID, THE ACTION WAS LAWLESS AND COURTS SHOULD HAVE GRANTED
RELIEF. 

WHAT WE DO TODAY IS TO ALLOW UNDER THE HEAD OF DUE PROCESS A
FRAGMENTATION OF PROCEEDINGS AGAINST THE ACCUSED PEOPLE THAT SEEMS TO
ME TO BE FOREIGN TO OUR SYSTEM.  NO INDICTMENT IS RETURNED, NO
COMMITMENT TO JAIL IS MADE, NO FORMAL CRIMINAL CHARGES ARE MADE.  HENCE
THE PROCEDURE IS CONDONED AS VIOLATING NO CONSTITUTIONAL GUARANTEE. 
YET WHAT IS DONE IS ANOTHER SHORT CUT USED MORE AND MORE THESE DAYS TO
"TRY" MEN IN WAYS NOT ENVISAGED BY THE CONSTITUTION.  THE RESULT IS AS
DAMAGING AS SUMMONING BEFORE COMMITTEES MEN WHO IT IS KNOWN WILL INVOKE
THE FIFTH AMENDMENT AND PILLORYING THEM FOR ASSERTING THEIR
CONSTITUTIONAL RIGHTS.  THIS CASE - LIKE THE OTHERS - IS A DEVICE TO
EXPOSE PEOPLE AS SUSPECTS OR CRIMINALS.  THE CONCEPT OF DUE PROCESS
WHICH PERMITS THE INVENTION AND USE OF PROSECUTORIAL DEVICES NOT
INCLUDED IN THE CONSTITUTION MAKES DUE PROCESS REFLECT THE SUBJECTIVE
OR EVEN WHIMSICAL NOTIONS OF A MAJORITY OF THIS COURT AS FROM TIME TO
TIME CONSTITUTED.  DUE PROCESS UNDER THE PREVAILING DOCTRINE IS WHAT
THE JUDGES SAY IT IS; AND IT DIFFERS FROM JUDGE TO JUDGE, FROM COURT TO
COURT.  THIS NOTION OF DUE PROCESS MAKES IT A TOOL OF THE ACTIVISTS WHO
RESPOND TO THEIR OWN VISCERAL REACTIONS IN DECIDING WHAT IS FAIR,
DECENT, OR REASONABLE.  THIS ELASTIC CONCEPT OF DUE PROCESS IS
DESCRIBED IN THE CONCURRING OPINION AS FOLLOWS: 

"WHETHER THE SCHEME SATISFIES THOSE STRIVINGS FOR JUSTICE WHICH DUE
PROCESS GUARANTEES, MUST BE JUDGED IN THE LIGHT OF REASON DRAWN FROM
THE CONSIDERATIONS OF FAIRNESS THAT REFLECT OUR TRADITIONS OF LEGAL AND
POLITICAL THOUGHT, DULY RELATED TO THE PUBLIC INTEREST CONGRESS SOUGHT
TO MEET BY THIS LEGISLATION AS AGAINST THE HAZARDS OR HARDSHIP TO THE
INDIVIDUAL THAT THE COMMISSION PROCEDURE WOULD ENTAIL." 

WHEN WE TURN TO THE CASES, PERSONAL PREFERENCE, NOT REASON, SEEMS,
HOWEVER, TO BE CONTROLLING. 

ILLUSTRATIVE ARE THE FIRST AMENDMENT PROTECTION GIVEN TO THE
ACTIVITIES OF A CLASSROOM TEACHER BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT IN SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 255, 261
263 (CONCURRING OPINION), BUT DENIED TO THE LEADER OF AN ORGANIZATION
HOLDING DISCUSSION GROUPS AT A SUMMER CAMP IN UPHAUS V. WYMAN, 360 U.S.
72; THE DECISIONS THAT DUE PROCESS WAS VIOLATED BY THE USE OF EVIDENCE
OBTAINED BY THE FORCEFUL USE OF A STOMACH PUMP IN ROCHIN V. CALIFORNIA,
342 U.S. 165, BUT NOT WHEN EVIDENCE WAS USED WHICH WAS OBTAINED BY
TAKING THE BLOOD OF AN UNCONSCIOUS PRISONER.  BREITHAUPT V. ABRAM, 352
U.S. 432. 

IT IS SAID IN DEFENSE OF THIS CHAMELEON-LIKE DUE PROCESS THAT IT IS
NOT "AN EXERCISE OF WHIM OR WILL," THAT IT IS "FOUNDED ON SOMETHING
MUCH DEEPER AND MORE JUSTIFIABLE THAN PERSONAL PREFERENCE.  AS FAR AS
IT LIES WITHIN HUMAN LIMITATIONS, IT MUST BE AN IMPERSONAL JUDGMENT. 
IT MUST REST ON FUNDAMENTAL PRESUPPOSITIONS ROOTED IN HISTORY TO WHICH
WIDESPREAD ACCEPTANCE MAY FAIRLY BE ATTRIBUTED."  SWEEZY V. NEW
HAMPSHIRE, SUPRA, AT 267 (CONCURRING OPINION).  YET ONE WHO TRIES TO
RATIONALIZE THE CASES ON COLD LOGIC OR REASON FAILS.  THE ANSWER TURNS
ON THE PERSONAL PREDILECTIONS OF THE JUDGE; AND THE LOUDER THE DENIAL
THE MORE EVIDENT IT IS THAT EMOTION RATHER THAN REASON DICTATES THE
ANSWER.  THIS IS A SERIOUS PRICE TO PAY FOR ADOPTING A FREE-WHEELING
CONCEPT OF DUE PROCESS, RATHER THAN CONFINING IT TO THE PROCEDURES AND
DEVICES ENUMERATED IN THE CONSTITUTION ITSELF.  AS SAID IN ADAMSON V.
CALIFORNIA, 332 U.S. 46, 68, 89 (DISSENTING OPINION): 

"IN MY JUDGMENT THE PEOPLE OF NO NATION CAN LOSE THEIR LIBERTY SO
LONG AS A BILL OF RIGHTS LIKE OURS SURVIVES AND ITS BASIC PURPOSES ARE
CONSCIENTIOUSLY INTERPRETED, ENFORCED AND RESPECTED SO AS TO AFFORD
CONTINUOUS PROTECTION AGAINST OLD, AS WELL AS NEW, DEVICES AND
PRACTICES WHICH MIGHT THWART THOSE PURPOSES.  I FEAR TO SEE THE
CONSEQUENCES OF THE COURT'S PRACTICE OF SUBSTITUTING ITS OWN CONCEPTS
OF DECENCY AND FUNDAMENTAL JUSTICE FOR THE LANGUAGE OF THE BILL OF
RIGHTS AS ITS POINT OF DEPARTURE IN INTERPRETING AND ENFORCING THAT
BILL OF RIGHTS." 

THAT WAS WRITTEN CONCERNING THE MEANING OF THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  BUT IT HAS EQUAL VITALITY WHEN APPLIED TO
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT WITH WHICH WE ARE NOW
CONCERNED. 

I THINK DUE PROCESS IS DESCRIBED IN THE CONSTITUTION AND LIMITED AND
CIRCUMSCRIBED BY IT.  THE CONSTITUTION IS EXPLICIT AS RESPECTS THE
PERMISSIBLE ACCUSATORY PROCESS THAT THE EXECUTIVE CAN EMPLOY AGAINST
THE CITIZEN.  MEN OF GOODWILL, NOT EVIL ONES ONLY, INVENT, UNDER
FEELINGS OF URGENCY, NEW AND DIFFERENT PROCEDURES THAT HAVE AN AWFUL
EFFECT ON THE CITIZEN.  THE NEW ACCUSATORY PROCEDURE SURVIVES IF A
TRANSIENT MAJORITY OF THE COURT ARE PERSUADED THAT THE DEVICE IS FAIR
OR DECENT.  MY VIEW OF THE CONSTITUTION CONFINES JUDGES - AS WELL AS
THE LAWMAKERS AND THE EXECUTIVE - TO THE PROCEDURES EXPRESSED IN THE
CONSTITUTION.  WE LOOK TO THE CONSTITUTION - NOT TO THE PERSONAL
PREDILECTIONS OF THE JUDGES - TO SEE WHAT IS PERMISSIBLE.  SINCE
SUMMONING AN ACCUSED BY THE GOVERNMENT TO EXPLAIN OR JUSTIFY HIS
CONDUCT, THAT IS CHARGED AS A CRIME, MAY BE DONE ONLY IN ONE WAY, I
WOULD REQUIRE A CONSTITUTIONAL AMENDMENT BEFORE IT CAN BE DONE IN A
DIFFERENT WAY. 

THE ALTERNATE PATH WHICH WE TAKE TODAY LEADS TO TRIAL OF SEPARATE
ESSENTIAL PARTS OF CRIMINAL PROSECUTIONS BY COMMISSIONS, BY EXECUTIVE
AGENCIES, BY LEGISLATIVE COMMITTEES.  FARMING OUT PIECES OF TRIALS TO
INVESTIGATIVE AGENCIES IS FRAGMENTIZING THE KIND OF TRIAL THE
CONSTITUTION AUTHORIZES.  IT PREJUDICES THE ULTIMATE TRIAL ITSELF; AND
IT PUTS IN THE HANDS OF OFFICIALS THE AWESOME POWER WHICH THE FRAMERS
ENTRUSTED ONLY TO JUDGES, GRAND JURORS AND PETIT JURORS DRAWN FROM THE
COMMUNITY WHERE THE ACCUSED LIVES.  IT LEADS TO GOVERNMENT BY
INQUISITION. 

THE CIVIL RIGHTS COMMISSION CAN HOLD ALL THE HEARINGS IT DESIRES; IT
CAN ADDUCE TESTIMONY FROM AS MANY PEOPLE AS IT LIKES; IT CAN SEARCH THE
RECORDS AND ARCHIVES FOR SUCH INFORMATION IT NEEDS TO MAKE AN INFORMED
REPORT TO CONGRESS.  SEE UNITED STATES V. MORTON SALT CO., 338 U.S.
632; OKLAHOMA PRESS PUB. CO. V. WALLING, 327 U.S. 186.  BUT WHEN IT
SUMMONS A PERSON, ACCUSED UNDER AFFIDAVIT OF HAVING VIOLATED THE
FEDERAL ELECTION LAW, TO SEE IF THE CHARGE IS TRUE, IT ACTS IN LIEU
EITHER OF A GRAND JURY OR OF A COMMITTING MAGISTRATE.  THE SIFTING OF
CRIMINAL CHARGES AGAINST PEOPLE IS FOR THE GRAND JURY OR FOR JUDGES OR
MAGISTRATES AND FOR THEM ALONE UNDER OUR CONSTITUTION.  IN MY VIEW NO
OTHER ACCUSATORY BODY CAN BE USED THAT WITHHOLDS THE RIGHTS OF
CONFRONTATION AND CROSS-EXAMINATION FROM THOSE ACCUSED OF FEDERAL
CRIMES. 

I WOULD AFFIRM THESE JUDGMENTS. 

FN1  CIVIL SUITS FOR DAMAGES ARE ALSO AUTHORIZED.  SEE 42 U.S.C. SEC.
1983; LANE V. WILSON, 307 U.S. 268. 

FN2  THE SECTION READS IN RELEVANT PART AS FOLLOWS: 

"WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM, WILLFULLY SUBJECTS ANY INHABITANT OF ANY STATE  ...  TO THE
DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED OR
PROTECTED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES  ...  BY
REASON OF HIS COLOR, OR RACE ...  SHALL BE FINED NOT MORE THAN $1,000
OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 

FN3  THE RULES OF THE COMMISSION BY SUBDIVISION (K) PROVIDE: 

"SUBJECT TO THE PHYSICAL LIMITATIONS OF THE HEARING ROOM AND
CONSIDERATION OF THE PHYSICAL COMFORT OF COMMISSION MEMBERS, STAFF, AND
WITNESSES, EQUAL AND REASONABLE ACCESS FOR COVERAGE OF THE HEARINGS
SHALL BE PROVIDED TO THE VARIOUS MEANS OF COMMUNICATIONS, INCLUDING
NEWSPAPERS, MAGAZINES, RADIO, NEWS REELS, AND TELEVISION.  HOWEVER, NO
WITNESS SHALL BE TELEVISED, FILMED OR PHOTOGRAPHED DURING THE HEARINGS
IF HE OBJECTS ON THE GROUND OF DISTRACTION, HARASSMENT, OR PHYSICAL
HANDICAP." 

FN4  CF. FRANKFURTER, HANDS OFF THE INVESTIGATIONS, NEW REPUBLIC, MAY
21, 1924, P. 329, AT 331: "IT MUST BE REMEMBERED THAT OUR RULES OF
EVIDENCE ARE BUT TOOLS FOR ASCERTAINING THE TRUTH, AND THAT THESE TOOLS
VARY WITH THE NATURE OF THE ISSUES AND THE NATURE OF THE TRIBUNAL
SEEKING FACTS.  SPECIFICALLY, THE SYSTEM OF RULES OF EVIDENCE USED IN
TRIALS BEFORE JURIES 'ARE MAINLY AIMED AT GUARDING THE JURY FROM THE
OVER-WEENING EFFECT OF CERTAIN KINDS OF EVIDENCE.'  THAT SYSTEM, AS
POINTED OUT BY WIGMORE, 'IS NOT APPLICABLE BY HISTORICAL PRECEDENT, OR
BY SOUND PRACTICAL POLICY' TO 'INQUIRIES OF FACT DETERMINABLE BY
ADMINISTRATIVE TRIBUNALS.'  STILL LESS IS IT APPLICABLE TO INQUIRIES BY
CONGRESSIONAL COMMITTEES.  OF COURSE THE ESSENTIAL DECENCIES MUST BE
OBSERVED, NAMELY OPPORTUNITY FOR CROSS-EXAMINATION MUST BE AFFORDED TO
THOSE WHO ARE INVESTIGATED OR TO THOSE REPRESENTING ISSUES UNDER
INVESTIGATION."    FN5  RULE 5(B), RULES OF CRIMINAL PROCEDURE,
PROVIDES THAT THE DEFENDANT SHALL BE INFORMED OF THE COMPLAINT AGAINST
HIM AND OF HIS RIGHT TO RETAIN COUNSEL.  RULE 5(C) EXPRESSLY STATES,
"THE DEFENDANT MAY CROSS-EXAMINE WITNESSES AGAINST HIM AND MAY
INTRODUCE EVIDENCE IN HIS OWN BEHALF." 
..END :




AQUILINO DBA HOME MAINTENANCE CO. V. UNITED STATES 363 U.S. 509 


NO. 1.  ARGUED OCTOBER 15, 1959.  - DECIDED JUNE 20, 1960.  - 3 N.Y.2D
511, 146 N.E.2D 774, JUDGMENT VACATED AND CAUSE REMANDED. 


A GENERAL CONTRACTOR HAVING DEFAULTED BOTH ON THE PAYMENT OF FEDERAL
TAXES AND ON THE PAYMENT OF AMOUNTS DUE TO SUBCONTRACTORS WHO HAD
SUPPLIED LABOR AND MATERIALS ON A CONSTRUCTION JOB IN NEW YORK STATE,
AND THE SUBCONTRACTORS HAVING SUED TO FORECLOSE THEIR MECHANICS' LIENS,
THE OWNER OF THE REAL ESTATE PAID INTO COURT THE AMOUNT REMAINING DUE
UNDER THE CONSTRUCTION CONTRACT.  UNDER SECS. 3670 AND 3671 OF THE
INTERNAL REVENUE CODE OF 1939, THE UNITED STATES CLAIMED PRIORITY FOR
ITS TAX LIEN ON THE "PROPERTY AND RIGHTS TO PROPERTY" OF THE DEFAULTING
GENERAL CONTRACTOR.  THE SUBCONTRACTORS CLAIMED THAT, UNDER SEC. 36-A
OF THE NEW YORK LIEN LAW, THE AMOUNTS DUE TO THE GENERAL CONTRACTOR
FROM THE OWNER CONSTITUTED "TRUST FUNDS" IN THE HANDS OF THE GENERAL
CONTRACTOR FOR THE BENEFIT OF SUBCONTRACTORS, LABORERS, AND
MATERIALMEN, TO THE EXTENT OF THEIR UNPAID CLAIMS, AND THAT, THEREFORE,
THE GENERAL CONTRACTOR HAD NO "PROPERTY" OR "RIGHTS TO PROPERTY" IN THE
FUND TO WHICH THE GOVERNMENT'S TAX LIEN COULD ATTACH.  WITHOUT CLEARLY
DETERMINING WHAT PROPERTY RIGHTS, IF ANY, THE GENERAL CONTRACTOR HAD IN
THE FUND UNDER STATE LAW, THE COURT OF APPEALS OF NEW YORK DECIDED IN
FAVOR OF THE UNITED STATES.  HELD:  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE COURT OF APPEALS OF NEW YORK, SO THAT IT MAY
ASCERTAIN THE PROPERTY INTERESTS OF THE TAXPAYER UNDER STATE LAW AND
THEN DISPOSE OF THE CASE IN ACCORDANCE WITH ESTABLISHED FEDERAL LAW. 
PP. 510-516. 

AQUILINO ET AL., DOING BUSINESS AS HOME MAINTENANCE CO., ET AL. V.
UNITED STATES ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE ASKED TO DETERMINE WHICH OF TWO COMPETING
CLAIMANTS - THE FEDERAL GOVERNMENT BY VIRTUE OF ITS TAX LIEN, OR
CERTAIN PETITIONING SUBCONTRACTORS BY VIRTUE OF THEIR RIGHTS UNDER
OWED UNDER A GENERAL CONSTRUCTION CONTRACT WHICH WAS PERFORMED BY THE
TAXPAYER. 

THE TAXPAYER, FLEETWOOD PAVING CORPORATION, IS A GENERAL CONTRACTOR,
WHICH IN JULY OR AUGUST 1952, AGREED TO REMODEL A RESTAURANT BELONGING
TO ONE ADA BOTTONE, HEREIN REFERRED TO AS THE OWNER.  THE PETITIONERS
IN AUGUST AND SEPTEMBER OF THAT YEAR ENTERED INTO A SUBCONTRACT WITH
THE TAXPAYER TO SUPPLY LABOR AND MATERIALS FOR THE REMODELING JOB. 
SHORTLY THEREAFTER, THE PETITIONERS PERFORMED THEIR OBLIGATIONS UNDER
THE SUBCONTRACT, BUT WERE NOT FULLY COMPENSATED BY THE CONTRACTOR
TAXPAYER.  THEREFORE, ON NOVEMBER 3, 1952, AND ON NOVEMBER 10, 1952,
THEY FILED NOTICES OF THEIR MECHANIC'S LIENS ON THE OWNER'S REALTY IN
THE OFFICE OF THE CLERK OF WESTCHESTER COUNTY.  IN JUNE 1953, THEY
INSTITUTED ACTIONS IN THE NEW YORK SUPREME COURT TO FORECLOSE THOSE
LIENS. 

BY ORDER OF COURT, THE OWNER WAS PERMITTED TO DEPOSIT WITH THE CLERK
OF THE COURT THE $2,200 WHICH SHE STILL OWED UNDER THE ORIGINAL
CONSTRUCTION CONTRACT, AND SHE WAS THEREAFTER DISMISSED AS A DEFENDANT
IN THE ACTION.  THE GOVERNMENT, HAVING PREVIOUSLY LEVIED UPON THE
OWNER'S ALLEGED INDEBTEDNESS TO THE TAXPAYER, WAS PERMITTED BY THE
COURT TO ENTER THE CASE AS A PARTY DEFENDANT. 

THE GOVERNMENT ASSERTED PRECEDENCE OVER THE CLAIMS OF PETITIONERS
BECAUSE OF THE FOLLOWING FACTS: THE DIRECTOR OF INTERNAL REVENUE IN
DECEMBER 1951 AND MARCH 1952 RECEIVED ASSESSMENT LISTS CONTAINING
ASSESSMENTS AGAINST THE TAXPAYER FOR UNPAID FEDERAL WITHHOLDING AND
SOCIAL SECURITY TAXES.  ON OCTOBER 31, 1952, THE DIRECTOR FILED A
NOTICE OF FEDERAL TAX LIENS IN THE OFFICE OF THE CLERK OF THE CITY OF
MOUNT VERNON, NEW YORK, WHICH IS THE CITY WHEREIN THE TAXPAYER
MAINTAINED ITS PRINCIPAL PLACE OF BUSINESS.  THE GOVERNMENT CLAIMED
PRIORITY FOR ITS TAX LIEN UNDER SECTIONS 3670 AND 3671 OF THE INTERNAL
REVENUE CODE OF 1939.  (FN1)  THE PETITIONERS CONTENDED THAT SINCE THE
CONTRACTOR-TAXPAYER OWED THEM MORE THAN $2,200 FOR LABOR AND MATERIALS
SUPPLIED TO THE JOB, UNDER THE NEW YORK LIEN LAW, SECTION 36-A, (FN2)
HE HAD NO PROPERTY INTEREST IN THE $2,200 WHICH THE OWNER STILL OWED
UNDER THE ORIGINAL REMODELING CONTRACT. 

THE NEW YORK SUPREME COURT, SPECIAL TERM, 140 N.Y.S.2D 355, GRANTED
PETITIONERS' MOTION FOR SUMMARY JUDGMENT.  THE GROUND FOR THE DECISION
WAS THAT THE GOVERNMENT'S TAX LIEN WAS INEFFECTIVE SINCE IT HAD NOT
BEEN FILED IN THE OFFICE DESIGNATED BY NEW YORK LAW FOR THE FILING OF
LIENS AGAINST REALTY.  ON APPEAL, THE APPELLATE DIVISION AFFIRMED, BUT
ON THE GROUND THAT THERE WAS NO DEBT DUE FROM THE OWNER TO THE TAXPAYER
TO WHICH THE GOVERNMENT'S LIEN COULD ATTACH, 2 APP.  DIV. 2D 747, 153
N.Y.S.2D 268.  THE COURT REASONED THAT THE FUND DEPOSITED BY THE OWNER
WAS A SUBSTITUTE FOR HER REALTY TO WHICH THE MECHANIC'S LIENS HAD
ATTACHED; AND THAT SINCE THE GOVERNMENT HAD NO LIEN ON THE OWNER'S
PROPERTY, IT COULD HAVE NO LIEN ON THE FUND SUBSTITUTED FOR THAT
PROPERTY.  ON APPEAL, THE NEW YORK COURT OF APPEALS HELD THAT THE TAX
LIEN HAD TAKEN EFFECT PRIOR TO THE PETITIONERS' CLAIMS.  IT THEREFORE
REVERSED THE LOWER NEW YORK COURTS, AND RULED THAT THE MOTION OF THE
UNITED STATES FOR SUMMARY JUDGMENT, RATHER THAN THAT OF PETITIONERS,
SHOULD HAVE BEEN GRANTED BY THE SUPREME COURT, SPECIAL TERM.  3 N.Y.2D
511, 146 N.E.2D 774.  WE GRANTED CERTIORARI, 359 U.S. 904. 

THE THRESHOLD QUESTION IN THIS CASE, AS IN ALL CASES WHERE THE
FEDERAL GOVERNMENT ASSERTS ITS TAX LIEN, IS WHETHER AND TO WHAT EXTENT
THE TAXPAYER HAD "PROPERTY" OR "RIGHTS TO PROPERTY" TO WHICH THE TAX
LIEN COULD ATTACH.  IN ANSWERING THAT QUESTION, BOTH FEDERAL AND STATE
COURTS MUST LOOK TO STATE LAW, FOR IT HAS LONG BEEN THE RULE THAT "IN
THE APPLICATION OF A FEDERAL REVENUE ACT, STATE LAW CONTROLS IN
DETERMINING THE NATURE OF THE LEGAL INTEREST WHICH THE TAXPAYER HAD IN
THE PROPERTY  ...  SOUGHT TO BE REACHED BY THE STATUTE."  (FN3)  MORGAN
V. COMMISSIONER, 309 U.S. 78, 82.  THUS, AS WE HELD ONLY TWO TERMS AGO,
CONSEQUENCES, FEDERALLY DEFINED, TO RIGHTS CREATED UNDER STATE LAW  ...
."  UNITED STATES V. BESS, 357 U.S. 51, 55.  (FN4)  HOWEVER, ONCE THE
TAX LIEN HAS ATTACHED TO THE TAXPAYER'S STATE-CREATED INTERESTS, WE
ENTER THE PROVINCE OF FEDERAL LAW, WHICH WE HAVE CONSISTENTLY HELD
DETERMINES THE PRIORITY OF COMPETING LIENS ASSERTED AGAINST THE
TAXPAYER'S "PROPERTY" OR "RIGHTS TO PROPERTY."  (FN5)  UNITED STATES V.
VORREITER, 355 U.S. 15, REVERSING 134 COLO. 543, 307 P.2D 475; UNITED
STATES V. WHITE BEAR BREWING CO., 350 U.S. 1010, REVERSING 227 F.2D
359; UNITED STATES V. COLOTTA, 350 U.S. 808, REVERSING 224 MISS.  33,
79 SO. 2D 474; UNITED STATES V. SCOVIL, 348 U.S. 218; UNITED STATES V.
LIVERPOOL & LONDON & GLOBE INS. CO., 348 U.S. 215; UNITED STATES V.
ACRI, 348 U.S. 211; UNITED STATES V. CITY OF NEW BRITAIN, 347 U.S. 81;
UNITED STATES V. GILBERT ASSOCIATES, 345 U.S. 361; UNITED STATES V.
SECURITY TRUST & SAV. BANK, 340 U.S. 47; ILLINOIS V. CAMPBELL, 329 U.S.
362; UNITED STATES V. WADDILL, HOLLAND & FLINN, INC., 323 U.S. 353. 
THE APPLICATION OF STATE LAW IN ASCERTAINING THE TAXPAYER'S PROPERTY
RIGHTS AND OF FEDERAL LAW IN RECONCILING THE CLAIMS OF COMPETING
LIENORS IS BASED BOTH UPON LOGIC AND SOUND LEGAL PRINCIPLES.  THIS
APPROACH STRIKES A PROPER BALANCE BETWEEN THE LEGITIMATE AND
TRADITIONAL INTEREST WHICH THE STATE HAS IN CREATING AND DEFINING THE
PROPERTY INTEREST OF ITS CITIZENS, AND THE NECESSITY FOR A UNIFORM
ADMINISTRATION OF THE FEDERAL REVENUE STATUTES. 

PETITIONERS CONTEND THAT THE NEW YORK COURT OF APPEALS DID NOT MAKE
ITS DETERMINATION IN THE LIGHT OF THESE SETTLED PRINCIPLES.  RELYING
UPON THE EXPRESS LANGUAGE OF SECTION 36-A OF THE LIEN LAW AND UPON A
NUMBER OF LOWER NEW YORK COURT DECISIONS INTERPRETING THAT STATUTE,
PETITIONERS CONCLUDE THAT THE MONEY ACTUALLY RECEIVED BY THE CONTRACTOR
TAXPAYER AND HIS RIGHT TO COLLECT AMOUNTS STILL DUE UNDER THE
CONSTRUCTION CONTRACT CONSTITUTE A DIRECT TRUST FOR THE BENEFIT OF
SUBCONTRACTORS, AND THAT THE ONLY PROPERTY RIGHTS WHICH THE CONTRACTOR
TAXPAYER HAS IN THE TRUST ARE BARE LEGAL TITLE TO ANY MONEY ACTUALLY
RECEIVED AND A BENEFICIAL INTEREST IN SO MUCH OF THE TRUST PROCEEDS AS
REMAIN AFTER THE CLAIMS OF SUBCONTRACTORS HAVE BEEN SETTLED.  THE
GOVERNMENT, ON THE OTHER HAND, CLAIMS THAT SECTION 36-A MERELY GIVES
THE SUBCONTRACTORS AN ORDINARY LIEN, AND THAT THE CONTRACTOR-TAXPAYER'S
PROPERTY RIGHTS ENCOMPASS THE ENTIRE INDEBTEDNESS OF THE OWNER UNDER
THE CONSTRUCTION CONTRACT. 

THIS CONFLICT SHOULD NOT BE RESOLVED BY THIS COURT, BUT BY THE
HIGHEST COURT OF THE STATE OF NEW YORK.  WE CANNOT SAY FROM THE OPINION
OF THE COURT OF APPEALS THAT IT HAS BEEN SATISFACTORILY RESOLVED. 
(FN6)  WE FIND NO DISCUSSION IN THE COURT'S OPINION TO INDICATE THE
NATURE OF THE PROPERTY RIGHTS POSSESSED BY THE TAXPAYER UNDER STATE
LAW.  NOR IS THE APPLICATION TO BE MADE OF FEDERAL LAW CLEARLY
DEFINED.  WE BELIEVE THAT IT IS IN THE INTERESTS OF ALL CONCERNED TO
HAVE THESE QUESTIONS DECIDED BY THE STATE COURTS OF NEW YORK.  WE
THEREFORE VACATE THE JUDGMENT OF THE COURT OF APPEALS, AND REMAND THE
CASE TO THAT COURT SO THAT IT MAY ASCERTAIN THE PROPERTY INTERESTS OF
THE TAXPAYER UNDER STATE LAW AND THEN DISPOSE OF THE CASE ACCORDING TO
ESTABLISHED PRINCIPLES OF LAW.  VACATED AND REMANDED. 

FN1  SECTION 3670: 

"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." 


"UNLESS ANOTHER DATE IS SPECIFICALLY FIXED BY LAW, THE LIEN SHALL
ARISE AT THE TIME THE ASSESSMENT LIST WAS RECEIVED BY THE COLLECTOR AND
SHALL CONTINUE UNTIL THE LIABILITY FOR SUCH AMOUNT IS SATISFIED OR
BECOMES UNENFORCEABLE BY REASON OF LAPSE OF TIME." 

THESE PROVISIONS ALSO APPEAR IN THE 1954 CODE.  INT. REV. CODE OF
1954, SECS. 6321, 6322. 

FN2  MCKINNEY'S N.Y. LAWS, LIEN LAW (1958 SUPP.), SEC. 36-A, PROVIDES
AS FOLLOWS: 

"THE FUNDS RECEIVED BY A CONTRACTOR FROM AN OWNER FOR THE IMPROVEMENT
OF REAL PROPERTY ARE HEREBY DECLARED TO CONSTITUTE TRUST FUNDS IN THE
HANDS OF SUCH CONTRACTOR TO BE APPLIED FIRST TO THE PAYMENT OF CLAIMS
OF SUBCONTRACTORS, ARCHITECTS, ENGINEERS, SURVEYORS, LABORERS AND
MATERIALMEN ARISING OUT OF THE IMPROVEMENT, AND TO THE PAYMENT OF
PREMIUMS ON SURETY BOND OR BONDS FILED AND PREMIUMS IN INSURANCE
ACCRUING DURING THE MAKING OF THE IMPROVEMENT AND ANY CONTRACTOR AND
ANY OFFICER, DIRECTOR OR AGENT OF ANY CONTRACTOR WHO APPLIES OR
CONSENTS TO THE APPLICATION OF SUCH FUNDS FOR ANY OTHER PURPOSE AND
FAILS TO PAY THE CLAIMS HEREINBEFORE MENTIONED IS GUILTY OF LARCENY AND
PUNISHABLE AS PROVIDED IN SECTION THIRTEEN HUNDRED AND TWO OF THE PENAL
LAW.  SUCH TRUST MAY BE ENFORCED BY CIVIL ACTION MAINTAINED AS PROVIDED
IN ARTICLE THREE-A OF THIS CHAPTER BY ANY PERSON ENTITLED TO SHARE IN
THE FUND, WHETHER OR NOT HE SHALL HAVE FILED, OR HAD THE RIGHT TO FILE,
A NOTICE OF LIEN OR SHALL HAVE RECOVERED A JUDGMENT FOR A CLAIM ARISING
OUT OF THE IMPROVEMENT.  FOR THE PURPOSE OF A CIVIL ACTION ONLY, THE
TRUST FUNDS SHALL INCLUDE THE RIGHT OF ACTION UPON AN OBLIGATION FOR
MONEYS DUE OR TO BECOME DUE TO A CONTRACTOR, AS WELL AS MONEYS ACTUALLY
RECEIVED BY HIM." 

696, SEC. 14.  THE SUBJECT MATTER COVERED BY SEC. 36-A IS NOW INCLUDED
IN MCKINNEY'S N.Y. LAWS, LIEN LAW (1959 SUPP.), SECS. 70, 71. 

FN3  IT IS SUGGESTED THAT THE DEFINITION OF THE TAXPAYER'S PROPERTY
INTERESTS SHOULD BE GOVERNED BY FEDERAL LAW, ALTHOUGH SUPPLYING THE
CONTENT OF THIS NEBULOUS BODY OF FEDERAL LAW WOULD APPARENTLY BE LEFT
FOR FUTURE DECISIONS.  WE THINK THAT THIS APPROACH IS UNSOUND BECAUSE
IT IGNORES THE LONG-ESTABLISHED ROLE THAT THE STATES HAVE PLAYED IN
CREATING PROPERTY INTERESTS AND PLACES UPON THE COURTS THE TASK OF
ATTEMPTING TO ASCERTAIN A TAXPAYER'S PROPERTY RIGHTS UNDER AN UNDEFINED
RULE OF FEDERAL LAW.  IT WOULD INDEED BE ANOMALOUS TO SAY THAT THE
TAXPAYER'S "PROPERTY AND RIGHTS TO PROPERTY" INCLUDED PROPERTY IN
WHICH, UNDER THE RELEVANT STATE LAW, HE HAD NO PROPERTY INTEREST AT
ALL. 

FN4  IT IS SAID THAT BECAUSE OF THE UNIQUE CIRCUMSTANCES WHICH
EXISTED IN BESS, THAT CASE DOES NOT CONTROL HERE.  HOWEVER, ASIDE FROM
THE FACT THAT BESS INVOLVED PROCEEDS PAYABLE UNDER AN INSURANCE POLICY,
WHEREAS THIS CASE INVOLVES PROCEEDS PAYABLE UNDER A CONSTRUCTION
CONTRACT, IT IS APPARENT THAT THE RELEVANT CIRCUMSTANCES OF THE TWO
CASES ARE ESSENTIALLY IDENTICAL.  IN BOTH CASES THE GOVERNMENT WAS
ATTEMPTING TO ASSERT ITS TAX LIEN AGAINST WHAT IT THOUGHT TO BE THE
"PROPERTY AND RIGHTS TO PROPERTY" OF THE TAXPAYER.  IN BOTH CASES AN
ADVERSE PARTY CLAIMED THE RIGHT TO THE PROPERTY IN QUESTION ON THE
THEORY THAT THE TAXPAYER HAD NEVER ACQUIRED A STATE-CREATED PROPERTY
INTEREST TO WHICH THE GOVERNMENT'S TAX LIEN COULD ATTACH.  FINALLY, IN
BOTH CASES, THE GOVERNMENT ATTEMPTED TO CHARACTERIZE THE PROBLEM AS ONE
INVOLVING A CONFLICT BETWEEN COMPETING CLAIMANTS TO BE SETTLED SOLELY
BY THE APPLICATION OF FEDERAL LAW. 

BESS HELD THAT STATE LAW DETERMINES THE PROPERTY INTERESTS OF A
TAXPAYER IN THE CASH SURRENDER VALUE OF AN INSURANCE POLICY, AS WELL AS
IN THE PROCEEDS PAYABLE UPON DEATH.  THE SAME CONSIDERATIONS WHICH LED
TO OUR CONCLUSION IN BESS REQUIRE THAT WE LOOK TO STATE LAW IN
DETERMINING THE GENERAL CONTRACTOR'S PROPERTY INTERESTS IN THIS CASE. 

FN5  IT IS SUGGESTED THAT THE RULE ANNOUNCED BY BESS AND APPLIED IN
THIS CASE IS INCONSISTENT WITH THE MANDATE THAT FEDERAL LAW GOVERNS THE
RELATIVE PRIORITY OF FEDERAL TAX LIENS AND STATE-CREATED LIENS. 
HOWEVER, WE FAIL TO PERCEIVE WHEREIN LIES THE INCONSISTENCY.  IT IS ONE
THING TO SAY THAT A TAXPAYER'S PROPERTY RIGHTS HAVE BEEN AND SHOULD BE
CREATED BY STATE LAW.  IT IS QUITE ANOTHER THING TO DECLARE THAT IN THE
INTEREST OF EFFICIENT TAX ADMINISTRATION ONE MUST LOOK TO FEDERAL LAW
TO RESOLVE THE CONFLICT BETWEEN COMPETING CLAIMANTS OF THE TAXPAYER'S
STATE-CREATED PROPERTY INTERESTS. 

FN6  SUBSEQUENT TO THE COURT OF APPEALS' DECISION IN THE INSTANT
CASE, AND AFTER THIS COURT'S DECISION IN UNITED STATES V. BESS, 357
U.S. 51, THE NEW YORK COURT OF APPEALS DECIDED THE CASE OF IN RE CITY
OF NEW YORK, 5 N.Y.2D 300, 157 N.E.2D 587, PENDING ON PETITION FOR A
WRIT OF CERTIORARI SUB NOM. UNITED STATES V. COBLENTZ, NO. 259, THIS
TERM (POST, P. 841).  THE COBLENTZ CASE IS NOT AUTHORITY FOR THE
DISPOSITION OF THE INSTANT CASE.  THE LATTER INVOLVES A DETERMINATION
OF PROPERTY RIGHTS UNDER SEC. 36-A OF THE NEW YORK LIEN LAW, WHEREAS
THE COBLENTZ CASE WAS CONCERNED WITH THE TAXPAYER'S PROPERTY INTERESTS
UNDER AN ASSIGNMENT CONTRACT, SEC. 475 OF THE NEW YORK JUDICIARY LAW,
AND SEC. B15-37.0 OF THE NEW YORK CITY ADMINISTRATIVE CODE.    MR.
JUSTICE HARLAN, DISSENTING IN NOS. 1 AND 23.* 

*NO. 23 IS UNITED STATES V. DURHAM LUMBER CO. ET AL., POST, P. 522. 

I AM UNABLE TO SUBSCRIBE TO THE REASONING WHICH UNDERLIES THE COURT'S
DISPOSITION OF THESE CASES.  BY HOLDING THAT THEY BOTH TURN ON WHETHER
THE TAXPAYER HAD "PROPERTY" UNDER STATE LAW TO WHICH THE GOVERNMENT'S
LIEN COULD ATTACH, THE COURT HAS SANCTIONED A RESULT CONSISTENTLY
PROHIBITED BY US IN A LINE OF CASES DEALING WITH THE PRIORITY OF
FEDERAL TAX LIENS.  (FN1) 

IN BOTH CASES, THE DELINQUENT TAXPAYER IS A DEFAULTING GENERAL
CONTRACTOR WHOSE SUBCONTRACTORS REMAIN UNPAID.  THE GOVERNMENT'S LIEN
IS ASSERTED AGAINST THE CHOSE IN ACTION WHICH THE GENERAL CONTRACTOR
ALLEGEDLY HOLDS AGAINST THE OWNER OF THE REAL ESTATE ON WHICH THE
IMPROVEMENTS WERE MADE, IN RESPECT OF AMOUNTS DUE FROM THE OWNER UNDER
THE CONSTRUCTION CONTRACT.  IF THE SUBCONTRACTORS HAD SOUGHT TO ENFORCE
THEIR CLAIMS BY IMPOSING A LIEN ON THAT CHOSE IN ACTION, THERE IS NO
QUESTION THAT THE GOVERNMENT'S LIEN WOULD PREVAIL.  UNDER THE DECISIONS
OF THIS COURT CITED IN NOTE 1, SUPRA, A FEDERAL TAX LIEN ASSERTED
AGAINST A TAXPAYER'S PROPERTY UNDER SECS.  3670 AND 3671 OF THE
INTERNAL REVENUE CODE OF 1939 (FN2) PREVAILS OVER ALL OTHER CLAIMS
AGAINST SUCH PROPERTY EXCEPT (1) THOSE WHICH ATTACH AND BECOME "CHOATE"
BEFORE THE FEDERAL LIEN ATTACHES, AND (2) THOSE SPECIFICALLY PROTECTED
BY SEC. 3672(A).  (FN3)  IT IS CONCEDED THAT THE INTERESTS OF THE
SUBCONTRACTORS IN THE PRESENT CASES ARE NOT PROTECTED BY SEC. 3672(A)
AND WOULD NOT BE CONSIDERED CHOATE UNDER THE APPLICABLE DECISIONS.  SEE
UNITED STATES V. KINGS COUNTY IRON WORKS, 224 F.2D 232 (C.A.2D CIR.
1955). 

THE COURT BELIEVES, HOWEVER, THAT THE PRESENT CASES ARE DIFFERENT,
BECAUSE UNDER STATE LAW, THE GENERAL CONTRACTOR IN AQUILINO HELD HIS
CLAIM AGAINST THE OWNER IN TRUST FOR THE SUBCONTRACTORS TO THE EXTENT
OF THEIR CLAIMS, AND BECAUSE THE SUBCONTRACTORS IN DURHAM LUMBER WERE
GIVEN, TO THE EXTENT OF THEIR CLAIMS, A DIRECT RIGHT OF ACTION AGAINST
THE OWNER IN RESPECT OF HIS DEBT TO THE GENERAL CONTRACTOR, AND THAT IN
THESE CIRCUMSTANCES THE RIGHTS OF THE SUBCONTRACTORS IN THE OWNER'S
DEBT ARE SUPERIOR TO THOSE OF THE GENERAL CONTRACTOR.  IT IS SAID THAT,
TO THE EXTENT OF THE SUBCONTRACTORS' CLAIMS, THE GENERAL CONTRACTOR,
UNDER STATE LAW, THUS HAD NO "PROPERTY" INTEREST IN THE AMOUNTS DUE HIM
FROM THE OWNER, AND THAT UNDER THE PRINCIPLES ENUNCIATED IN UNITED
STATES V. BESS, 357 U.S. 51, A FEDERAL TAX LIEN CAN ATTACH ONLY TO A
PROPERTY INTEREST WHICH EXISTS UNDER STATE LAW. 

I CANNOT SEE HOW IT MAKES ANY DIFFERENCE, FOR PURPOSES OF THE FEDERAL
TAX-LIEN STATUTE, WHETHER STATE LAW PURPORTS TO PREFER SUBCONTRACTORS
OVER THE GENERAL CONTRACTOR AND PARTIES CLAIMING THROUGH HIM BY GIVING
THE SUBCONTRACTORS A LIEN ON THE GENERAL CONTRACTOR'S RIGHT OF ACTION
AGAINST THE OWNER OR BY GIVING THEM A PRIOR RIGHT TO COLLECT THE DEBT
ITSELF.  IN BOTH INSTANCES, THE OWNER IS UNDER A CONTRACTUAL DUTY TO
PAY THE GENERAL CONTRACTOR AND THE LATTER IS UNDER A CONTRACTUAL DUTY
TO PAY THE SUBCONTRACTORS.  IN BOTH INSTANCES, THE SUBCONTRACTORS ARE
ATTEMPTING TO SATISFY THEIR CLAIMS AGAINST THE GENERAL CONTRACTOR.  AND
IN BOTH INSTANCES, THEY ARE SEEKING TO SATISFY THEMSELVES BY CLAIMING
PRECISELY THE SAME THING - A PRIOR RIGHT IN THE PROCEEDS OF THE DEBT
WHICH ARISES BY VIRTUE OF THE CONTRACTUAL RELATIONSHIP BETWEEN THE
OWNER AND THE GENERAL CONTRACTOR.  (FN4)  IN NEITHER INSTANCE CAN THE
SUBCONTRACTORS COLLECT MORE THAN THAT TO WHICH THE SUBCONTRACT ENTITLES
THEM, AND IN NEITHER CAN THE OWNER BE REQUIRED TO PAY MORE THAN THAT TO
WHICH THE MAIN CONTRACT OBLIGATES HIM.  IF FEDERAL LAW REQUIRES THAT
SUBORDINATION OF THE GENERAL CONTRACTOR'S INTEREST BE IGNORED IN THE
ONE INSTANCE, IT DOES SO EQUALLY IN THE OTHER. 

THE BESS CASE DOES NOT REQUIRE A CONTRARY CONCLUSION.  THAT CASE HELD
ONLY THAT WHILE A FEDERAL TAX LIEN ATTACHED TO THE CASH SURRENDER VALUE
OF A LIFE INSURANCE POLICY OWNED BY THE TAXPAYER, IT DID NOT ATTACH TO
THE PROCEEDS PAID ON HIS DEATH, BECAUSE UNDER STATE LAW HE HAD NO RIGHT
TO SUCH PROCEEDS DURING HIS LIFE.  THERE WAS NO REASON UNDER THOSE
CIRCUMSTANCES WHY STATE PROPERTY CONCEPTS SHOULD NOT CONTROL.  TO READ
THAT CASE AS STANDING FOR THE PROPOSITION THAT SUCH CONCEPTS MUST ALSO
BE CONTROLLING IN CASES SUCH AS THESE DEFEATS THE RULE THAT "THE
RELATIVE PRIORITY OF THE LIEN OF THE UNITED STATES FOR UNPAID TAXES IS
...  ALWAYS A FEDERAL QUESTION TO BE DETERMINED FINALLY BY THE FEDERAL
COURTS."  UNITED STATES V. ACRI, 348 U.S. 211, 213.  IT IS ONE THING TO
SAY, AS THE COURT DID IN BESS, THAT THE FEDERAL INTEREST IN UNIFORM
APPLICATION OF FEDERAL TAX LIENS DOES NOT REQUIRE, AS A GENERAL RULE,
THAT STATE PROPERTY CONCEPTS BE DISREGARDED.  IT IS QUITE ANOTHER TO
PERMIT SUCH CONCEPTS TO CONTROL THE EXTENT OF A FEDERAL LIEN'S
APPLICATION IN SITUATIONS INDISTINGUISHABLE FROM THOSE WHERE THE COURT
HAS IN FACT, RIGHTLY OR WRONGLY, ENFORCED A UNIFORM FEDERAL RULE. 
GIVEN FEDERAL SUPREMACY IN THIS FIELD, IT SURELY CANNOT BE THAT THE
FEDERAL COURTS MAY NOT APPRAISE FOR THEMSELVES THE TRUE IMPACT OF STATE
CREATED RIGHTS UPON THE PRIORITY OF FEDERAL TAX LIENS WITHIN THE
CRITERIA ESTABLISHED BY THIS COURT.  CF. CARPENTER V. SHAW, 280 U.S.
363, 367; CITY OF DETROIT V. MURRAY CORPORATION, 355 U.S. 489, 492.  TO
RECOGNIZE THE SUBSTANTIAL EQUIVALENCE OF THE SITUATIONS IS NOT TO
CREATE A NEW RULE OF FEDERAL PROPERTY LAW BUT TO REQUIRE AN EVENHANDED
APPLICATION OF AN ALREADY ESTABLISHED ONE.  IT SEEMS TO ME THAT JUDGE
FULD OF THE NEW YORK COURT OF APPEALS WAS QUITE RIGHT IN HOLDING IN THE
AQUILINO CASE THAT NEW YORK COULD NOT, CONSISTENTLY WITH THE PAST
DECISIONS OF OUR COURT, DEFEAT THE OTHERWISE SUPERIOR FEDERAL LIEN UPON
THE OWNER'S DEBT TO THE GENERAL CONTRACTOR BY CONVERTING THE DEBT INTO
A TRUST FOR THE BENEFIT OF THE SUBCONTRACTOR.  (FN5) 

TO READ BESS AS THE COURT DOES CAN LEAD TO CONFUSION IN THE
ADMINISTRATION OF THE FEDERAL TAX-LIEN STATUTE.  A TAXPAYER'S PROPERTY
IN A DEBT IS SURELY DIMINISHED BY THE IMPOSITION OF A LIEN ON HIS
INTEREST, FOR HE HAS NO RIGHT TO COLLECT THE LIENED PORTION NOR TO
ALIENATE IT.  YET IN PRECISELY THIS SITUATION, WE HAVE HELD THAT THE
FEDERAL TAX LIEN IS NOT AFFECTED BY SUCH DIMINUTION.  UNITED STATES V.
LIVERPOOL & LONDON GLOBE INS. CO., 348 U.S. 215.  IF THIS HOLDING IS TO
BE PRESERVED AFTER TODAY'S DECISION, SUBSEQUENT CASES MUST TURN ON THE
ELUSIVE DISTINCTION BETWEEN DIMINISHING A GREATER PROPERTY INTEREST AND
INITIALLY CONFERRING A LESSER ONE.  (FN6)  THE VERY DIFFICULTY WHICH
THIS COURT EXPERIENCES IN TRYING TO DETERMINE WHETHER UNDER NEW YORK
LAW THE GENERAL CONTRACTOR REALLY HOLDS ONLY A BARE LEGAL TITLE IN
TRUST FOR THE SUBCONTRACTORS OR HAS FULL OWNERSHIP OF THE DEBT SUBJECT
TO A LIEN IN FAVOR OF THE SUBCONTRACTORS DEMONSTRATES THE FUTILITY OF
ATTEMPTING TO DRAW SUCH DISTINCTIONS FOR FEDERAL PURPOSES.  I VENTURE
TO SUGGEST THAT ON REMAND, THE COURT OF APPEALS CAN WITH EQUAL FACILITY
LABEL THE SUBCONTRACTORS' INTERESTS "PROPERTY" OR A "LIEN," THE
RELEVANT INCIDENTS OF THE RELATIONSHIP BEING THE SAME IN EITHER CASE. 
WHY SHOULD NOT THAT COURT AND THE LEGISLATURES OF OTHER STATES READILY
RESPOND IN CHOOSING THE FORMER ALTERNATIVE? 

I WOULD AFFIRM THE JUDGMENT IN NO. 1, AND WOULD REVERSE IN NO. 23 ON
THE GROUND THAT NORTH CAROLINA CAN UNDER NO CIRCUMSTANCES ACCORD
SUBCONTRACTORS A RIGHT IN THE PROCEEDS OF THE DEBT ARISING FROM THE
CONSTRUCTION CONTRACT SUPERIOR TO THE GOVERNMENT'S LIEN WITHOUT
SATISFYING ONE OF THE TWO REQUIREMENTS LAID DOWN BY FEDERAL LAW.  IF
THE FEDERAL STANDARD OF CHOATENESS IS THOUGHT TO BE AN UNDESIRABLE
RESTRICTION ON THE STATES' FREEDOM TO REGULATE PROPERTY RELATIONSHIPS,
THE CASES ESTABLISHING THAT STANDARD SHOULD BE EXPRESSLY OVERRULED AND
NOT EMASCULATED BY DUBIOUS DISTINCTIONS. 

FN1  UNITED STATES V. SECURITY TRUST & SAVINGS BANK, 340 U.S. 47
(1950); UNITED STATES V. CITY OF NEW BRITAIN, 347 U.S. 81 (1954);
UNITED STATES V. ACRI, 348 U.S. 211 (1955); UNITED STATES V. LIVERPOOL
& LONDON GLOBE INS. CO., LTD., 348 U.S. 215 (1955); UNITED STATES V.
SCOVIL, 348 U.S. 218 (1955); UNITED STATES V. COLOTTA, 350 U.S. 808
(1955); UNITED STATES V. WHITE BEAR BREWING CO., 350 U.S. 1010 (1956);
UNITED STATES V. VORREITER, 355 U.S. 15 (1957); UNITED STATES V. BALL
CONSTRUCTION CO., INC., 355 U.S. 587 (1958); UNITED STATES V. HULLEY,
358 U.S. 66 (1958). 

FN2  THE TEXT OF THESE SECTIONS, APPLICABLE IN THE AQUILINO CASE, ARE
SET FORTH IN NOTE 1 OF THE COURT'S OPINION IN NO. 1, ANTE, P. 511.  THE
COMPARABLE PROVISIONS OF THE INTERNAL REVENUE CODE OF 1954, SECS. 6321
AND 6322, APPLICABLE IN THE DURHAM LUMBER CASE, ARE PRINTED IN NOTES 1
AND 2 OF THE COURT'S OPINION IN NO. 23, POST, P. 524. 

FN3  THAT SECTION, AS AMENDED, PROVIDES:  "SUCH LIEN SHALL NOT BE
VALID AS AGAINST ANY MORTGAGEE, PLEDGEE, PURCHASER, OR JUDGMENT
CREDITOR UNTIL NOTICE THEREOF HAS BEEN FILED BY THE COLLECTOR  ... ."
53 STAT. 882.  THE COMPARABLE PROVISION OF THE INTERNAL REVENUE CODE OF
1954 IS SEC. 6323(A). 

FN4  IT IS NOTEWORTHY THAT THE NORTH CAROLINA LAW INVOLVED IN THE
DURHAM LUMBER CASE REQUIRES THE GENERAL CONTRACTOR TO FURNISH THE OWNER
WITH A STATEMENT OF SUBCONTRACTORS' CLAIMS "BEFORE RECEIVING ANY PART
OF THE CONTRACT PRICE, AS IT MAY BECOME DUE," AND THAT IT IS THEREAFTER
THE DUTY OF THE OWNER TO RETAIN AN APPROPRIATE AMOUNT "FROM THE MONEY
THEN DUE THE CONTRACTOR."  N.C. GEN. STAT., 1950, SEC. 44-8.  ALTHOUGH
THIS SECTION INDICATES THAT THE GENERAL CONTRACTOR HAS NO RIGHT TO
COLLECT THE PROCEEDS OF THE MAIN CONTRACT UNTIL THE STATUTORY
CONDITIONS ARE SATISFIED, IT OBVIOUSLY RECOGNIZES THE OWNER'S
CONTRACTUAL OBLIGATION AS THE REAL BASIS OF THE TRANSACTION AND THE
SOURCE OF THE SUBCONTRACTORS' RIGHTS.  THE SUBCONTRACTORS' CLAIMS ARE
THUS NOT AKIN TO LIENS ON THE OWNER'S REAL ESTATE, AS THIS COURT
SUGGESTS, BUT ARE ASSERTED SOLELY IN RESPECT OF THE MONETARY CLAIM HELD
BY THE GENERAL CONTRACTOR AGAINST THE OWNER. 

FN5  "IT IS, BY NOW, EXCEEDINGLY WELL SETTLED THAT NO STATE-CREATED
RULE MAY DEFEAT THE PARAMOUNT RIGHT OF THE UNITED STATES TO LEVY AND
COLLECT TAXES UNIFORMLY THROUGHOUT THE LAND.  (SEE UNITED STATES V.
VORREITER, 355 U.S. 15, REVG.  134 COL. 543; UNITED STATES V. WHITE
BEAR BREWING CO., 350 U.S. 1010, REVG.  227 F.2D 359; UNITED STATES V.
COLOTTA, SUPRA, 350 U.S. 808, REVG.  224 MISS.  33; UNITED STATES V.
SCOVIL, SUPRA, 348 U.S. 218, 220-221; UNITED STATES V. NEW BRITAIN,
SUPRA, 347 U.S. 81, 84-87; UNITED STATES V. KINGS COUNTY IRON WORKS,
SUPRA, 224 F.2D 232, 237).  THAT BEING SO, IT FOLLOWS THAT THE
PROVISION IN THIS STATE'S LIEN LAW, TO WHICH RESPONDENTS POINT - THAT
FUNDS RECEIVED BY A CONTRACTOR FROM THE OWNER FOR THE IMPROVEMENT OF
REAL PROPERTY SHALL BE DEEMED 'TRUST FUNDS' FOR THE PAYMENT OF
SUBCONTRACTORS (SEC. 36-A; SEC. 13, SUBD. (7)) - MAY NOT BE CONSTRUED
TO AFFECT THE RIGHTS OF THE GOVERNMENT OR THE PRIORITY OF ITS TAX
LIEN."  3 N.Y.2D, AT 516, 146 N.E.2D, AT 777-778. 

FN6  IT WILL NOT DO TO DISTINGUISH THE PRESENT TYPE OF CASE FROM THE
LIEN-PRIORITY CASES ON THE GROUND THAT IN THE LATTER CASES THE TAXPAYER
REMAINS THE OWNER IN A VERY REAL SENSE AND CAN CONTINUE TO ENJOY THE
PROPERTY IF HE DISCHARGES THE DEBT IT SECURES.  IN BOTH INSTANCES, THE
TAXPAYER IS TEMPORARILY DEPRIVED OF CERTAIN INCIDENTS OF OWNERSHIP AS A
DEVICE FOR SECURING THE PAYMENT OF A DEBT, AND IS RESTORED TO THE FULL
ENJOYMENT OF THE PROPERTY ONLY WHEN THE DEBT IS DISCHARGED.  AND IT IS
ILLUSORY TO SAY THAT OWNERSHIP OF A DEBT WHICH CAN BE NEITHER COLLECTED
NOR ALIENATED IS ANY MORE "REAL" THAN THE OWNERSHIP OF NO DEBT AT ALL. 
WHETHER THE DIMINUTION OF THE TAXPAYER'S INTEREST IS SUFFICIENTLY
DEFINITE AND COMPLETE TO CONCLUDE THE FEDERAL LIEN IS PRECISELY THE
QUESTION ON WHICH THIS COURT HAS HELD FEDERAL LAW MUST CONTROL.  IT IS
ADMITTED THAT, IF THE FEDERAL STANDARD OF "CHOATENESS" DEVELOPED BY
THIS COURT IN THE LIEN-PRIORITY CASES IS APPLIED, THE INCIDENTS OF
OWNERSHIP RETAINED BY THE TAXPAYERS HERE MUST IN FACT BE DEEMED GREATER
THAN THOSE RETAINED BY TAXPAYERS IN CASES WHERE STATE-CREATED LIENS
IMPOSED ON THEIR INTERESTS HAVE PREVAILED OVER THE GOVERNMENT'S LIEN. 

MR. JUSTICE BLACK, WHILE ADHERING TO THE DISSENTING VIEWS EXPRESSED
BY HIM IN COMMISSIONER V. STERN, 357 U.S. 39, 47, AND UNITED STATES V.
BESS, 357 U.S. 51, 59, CONCURS IN THIS OPINION. 
..END :













UNITED STATES V. DURHAM LUMBER CO. 363 U.S. 522 


NO. 23.  ARGUED OCTOBER 19, 1959.  - DECIDED JUNE 20, 1960.  - 257 F.2D
570, AFFIRMED. 


CERTAIN GENERAL CONTRACTORS WERE ADJUDICATED BANKRUPTS AFTER HAVING
DEFAULTED BOTH ON THE PAYMENT OF FEDERAL TAXES AND ON THE PAYMENT OF
AMOUNTS DUE TO CERTAIN SUBCONTRACTORS ON THE CONSTRUCTION OF BUILDINGS
IN NORTH CAROLINA.  THE OWNERS OF THE BUILDINGS PAID TO THE TRUSTEE IN
BANKRUPTCY THE AMOUNT REMAINING DUE UNDER THE CONTRACT, AND IT WAS
AGREED THAT THE SUBCONTRACTORS COULD ASSERT THE SAME RIGHTS AGAINST THE
TRUSTEE AS THEY COULD HAVE ASSERTED AGAINST THE OWNERS.  UNDER SECS.
6321 AND 6322 OF THE INTERNAL REVENUE CODE OF 1954, THE UNITED STATES
CLAIMED PRIORITY FOR ITS TAX LIEN ON THE "PROPERTY AND RIGHTS TO
PROPERTY" BELONGING TO THE GENERAL CONTRACTORS.  THE FEDERAL COURT OF
APPEALS HELD THAT, UNDER NORTH CAROLINA LAW, THE GENERAL CONTRACTORS
HAD NO PROPERTY INTEREST IN THE AMOUNT DUE UNDER THE GENERAL
CONSTRUCTION CONTRACT, EXCEPT TO THE EXTENT THAT SUCH AMOUNT EXCEEDED
THE AGGREGATE OF ALL AMOUNTS DUE TO SUBCONTRACTORS, AND THAT,
THEREFORE, THE GOVERNMENT COULD RECOVER ONLY SO MUCH OF THE
CONSTRUCTION PRICE AS WOULD REMAIN UNPAID AFTER DEDUCTION OF A SUM
SUFFICIENT TO PAY THE SUBCONTRACTORS.  HELD:  SINCE THE COURT OF
APPEALS IS MUCH CLOSER TO NORTH CAROLINA LAW THAN IS THIS COURT, AND
SINCE THIS COURT CANNOT SAY THAT THE COURT OF APPEALS' CHARACTERIZATION
OF THE TAXPAYERS' PROPERTY INTERESTS UNDER THAT LAW IS CLEARLY
ERRONEOUS OR UNREASONABLE, THE JUDGMENT IS AFFIRMED.  PP. 523-527. 

UNITED STATES V. DURHAM LUMBER CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE COMPETING CLAIMS OF THE FEDERAL GOVERNMENT AND
CERTAIN SUBCONTRACTORS TO A SUM OF MONEY OWED TO THE TAXPAYERS UNDER A
GENERAL CONSTRUCTION CONTRACT. 

THE TAXPAYERS, MICHAEL & EMBREE, WERE GENERAL CONTRACTORS DOING
BUSINESS AT DURHAM, NORTH CAROLINA.  EARLY IN 1954, THEY AGREED TO
CONSTRUCT CERTAIN BUILDINGS FOR PERSONS HEREIN REFERRED TO AS THE
"OWNERS."  THIS WORK WAS COMPLETED ON JULY 15, 1954, BUT BECAUSE THE
OWNERS DISPUTED THE AMOUNT DUE UNDER THE CONTRACT, PAYMENT TO THE
TAXPAYERS WAS DELAYED. 

IN COMPLETING THE CONSTRUCTION WORK, THE TAXPAYERS HAD UTILIZED THE
SERVICES AND MATERIALS OF NUMEROUS SUBCONTRACTORS, MOST OF WHOM HAD NOT
BEEN COMPENSATED.  THE RESPONDENTS ARE TWO SUCH SUBCONTRACTORS, WHO IN
JANUARY AND FEBRUARY 1955, GAVE THE OWNERS NOTICE OF THEIR RESPECTIVE
CLAIMS AGAINST THE TAXPAYERS. 

ON JANUARY 18, 1955, THE TAXPAYERS WERE ADJUDICATED BANKRUPTS.  AT
THAT TIME, THERE WAS AN UNPAID BALANCE OF $5,250 DUE FROM THE OWNERS
UNDER THE CONSTRUCTION CONTRACT.  AFTER EXTENSIVE NEGOTIATIONS BETWEEN
THE OWNERS, THE TRUSTEE IN BANKRUPTCY, AND THE SUBCONTRACTORS, IT WAS
AGREED THAT THE OWNERS WOULD ABSOLVE THEMSELVES FROM FURTHER LIABILITY
BY PAYING THE $5,250 TO THE TRUSTEE, AND THAT THE SUBCONTRACTORS COULD
THEREAFTER ASSERT THE SAME RIGHTS AGAINST THE TRUSTEE AS THEY COULD
HAVE ASSERTED AGAINST THE OWNERS.  THIS ARRANGEMENT WAS APPROVED BY
BOTH THE SUPERIOR COURT FOR DURHAM COUNTY, NORTH CAROLINA, AND THE
FEDERAL BANKRUPTCY COURT. 

ANOTHER CLAIMANT OF THE MONEY DEPOSITED WITH THE TRUSTEE WAS THE
FEDERAL GOVERNMENT, WHICH ON AUGUST 13, 1954, AND NOVEMBER 22, 1954,
HAD ASSESSED THE TAXPAYERS FOR UNCOLLECTED WITHHOLDING AND UNEMPLOYMENT
INSURANCE TAXES.  BY VIRTUE OF SECTIONS 6321 (FN1) AND 6322 (FN2) OF
THE INTERNAL REVENUE CODE OF 1954, A FEDERAL TAX LIEN ATTACHED TO ALL
"PROPERTY AND RIGHTS TO PROPERTY" BELONGING TO THE TAXPAYERS AT THE
TIME THE ASSESSMENTS WERE MADE.  THE GOVERNMENT CONTENDED THAT THE
MONEY OWING UNDER THE CONSTRUCTION CONTRACT WAS PROPERTY OF THE
TAXPAYERS TO WHICH THE TAX LIEN ATTACHED. 

THE REFEREE IN BANKRUPTCY, ATTEMPTING TO RESOLVE THE COMPETING CLAIMS
AGAINST THE FUND AS IF THE PARTIES WERE BEFORE A STATE COURT, DECIDED
THAT THE RIGHTS OF THE FEDERAL GOVERNMENT UNDER ITS TAX LIEN WERE
SUPERIOR TO THOSE OF THE RESPONDENTS.  THE DISTRICT COURT FOR THE
MIDDLE DISTRICT OF NORTH CAROLINA DISAGREED, AND HELD THAT THE
RESPONDENTS WERE ENTITLED TO PAYMENT OF THEIR CLAIMS BEFORE THE
GOVERNMENT COULD SATISFY ITS TAX LIEN.  ON APPEAL, THE COURT OF APPEALS
FOR THE FOURTH CIRCUIT AFFIRMED, 257 F.2D 570.  WE GRANTED CERTIORARI. 
359 U.S. 905. 

IN AFFIRMING THE JUDGMENT OF THE DISTRICT COURT, THE COURT OF APPEALS
STATED THAT THE NATURE AND EXTENT OF THE GENERAL CONTRACTORS' PROPERTY
RIGHTS, TO WHICH THE TAX LIEN ATTACHED, MUST BE ASCERTAINED UNDER STATE
LAW.  THE COURT THEN UNDERTOOK AN EXTENSIVE ANALYSIS OF THE RELEVANT
NORTH CAROLINA STATUTES (FN3) AND CASES.  IT FOUND THAT THE NORTH
CAROLINA LAW PROVIDES AS FOLLOWS: SUBCONTRACTORS WHO HAVE NOT BEEN PAID
BY THE GENERAL CONTRACTOR HAVE A DIRECT, INDEPENDENT CAUSE OF ACTION
AGAINST THE OWNER TO THE EXTENT OF ANY AMOUNT DUE UNDER THE GENERAL
CONSTRUCTION CONTRACT, AND ANY MONEY OWED BY THE OWNER UNDER THE
CONSTRUCTION CONTRACT MUST FIRST BE USED TO SATISFY SUBCONTRACTORS'
CLAIMS OF WHICH THE OWNER HAS NOTICE.  MOREOVER, TO INSURE THAT THE
OWNER WILL RECEIVE NOTICE OF OUTSTANDING SUBCONTRACTORS' CLAIMS, THE
NORTH CAROLINA STATUTE, N.C.  GEN. STAT., 1950, SEC. 44-8, REQUIRES THE
GENERAL CONTRACTOR, BEFORE RECEIVING ANY PAYMENT, TO FURNISH THE OWNER
WITH A STATEMENT OF ALL SUMS DUE SUBCONTRACTORS, AND IF THE GENERAL
CONTRACTOR FAILS TO SUPPLY THE REQUIRED STATEMENT, HE IS GUILTY OF A
MISDEMEANOR.  N.C. GEN. STAT., 1950, SEC. 44-12.  FINALLY, THE COURT
FOUND FURTHER EVIDENCE OF THE DIRECT AND INDEPENDENT NATURE OF THE
SUBCONTRACTORS' CLAIMS AGAINST THE OWNER IN N.C. GEN. STAT. 1950, SEC.
44-9, WHICH PROVIDES THAT SHOULD THE OWNER PAY THE GENERAL CONTRACTOR
AFTER RECEIVING NOTICE OF A SUBCONTRACTOR'S CLAIM, HE WILL NEVERTHELESS
BE LIABLE TO THE SUBCONTRACTOR TO THE EXTENT OF THE AMOUNT WHICH WAS
DUE UNDER THE CONSTRUCTION CONTRACT AT THE TIME NOTICE WAS RECEIVED. 

BASED UPON THESE CONSIDERATIONS, THE COURT OF APPEALS HELD THAT,
UNDER NORTH CAROLINA LAW, THE GENERAL CONTRACTOR DID NOT HAVE A
PROPERTY INTEREST IN THE FACE AMOUNT, AS SUCH, OF THE GENERAL
CONSTRUCTION CONTRACT.  SPECIFICALLY, THE COURT SAID THAT "EXCEPT TO
THE EXTENT THE CLAIM OF THE GENERAL CONTRACTOR EXCEEDS THE AGGREGATE OF
THE CLAIMS OF THE SUBCONTRACTORS, THE GENERAL CONTRACTOR HAS NO RIGHT
WHICH IS SUBJECT TO SEIZURE UNDER THE TAX LIEN."  ID., AT 574. 
THEREFORE, CONCLUDED THE COURT, SINCE UNDER NORTH CAROLINA LAW THE
TAXPAYERS POSSESSED MERELY A RIGHT TO THE RESIDUE OF THE FUND, AND
SINCE THE GOVERNMENT'S TAX LIEN ATTACHED TO THE PROPERTY INTERESTS OF
THE TAXPAYERS AS DEFINED BY STATE LAW, THE GOVERNMENT CAN RECOVER ONLY
"SO MUCH OF THE CONSTRUCTION PRICE AS WILL REMAIN UNPAID AFTER THE
OWNERS HAVE DEDUCTED A SUM SUFFICIENT TO PAY THE SUBCONTRACTORS."  ID.,
AT 575. 

THE COURT OF APPEALS WAS CORRECT IN ASSERTING THAT THE GOVERNMENT'S
TAX LIEN ATTACHED TO THE TAXPAYERS' PROPERTY INTERESTS IN THE FUND AS
DEFINED BY NORTH CAROLINA LAW.  AQUILINO V. UNITED STATES, ANTE, PP.
509, 513; (FN4) UNITED STATES V. BESS, 357 U.S. 51, 55; CF. MORGAN V.
COMMISSIONER, 309 U.S. 78, 82.  IT IS SUGGESTED THAT THE COURTS OF
NORTH CAROLINA HAVE NEVER SPECIFICALLY DESCRIBED THE NATURE OF THE
PROPERTY RIGHTS CREATED BY THE NORTH CAROLINA STATUTES INVOLVED IN THIS
CASE, AND THAT THE COURT OF APPEALS' INTERPRETATION OF THOSE STATUTES
IS PROBABLY INCORRECT.  HOWEVER, WHERE "THE PRECISE ISSUE OF STATE LAW
INVOLVED  ...  IS ONE WHICH HAS NOT BEEN DECIDED BY THE  ...  STATE
COURTS," THIS COURT HAS SAID THAT, "IN DEALING WITH ISSUES OF STATE LAW
THAT ENTER INTO JUDGMENTS OF FEDERAL COURTS, WE ARE HESITANT TO
OVERRULE DECISIONS BY FEDERAL COURTS SKILLED IN THE LAW OF PARTICULAR
STATES UNLESS THEIR CONCLUSIONS ARE SHOWN TO BE UNREASONABLE."  PROPPER
V. CLARK, 337 U.S. 472, 486-487.  SINCE THE COURT OF APPEALS IS MUCH
CLOSER TO NORTH CAROLINA LAW THAN WE ARE, AND SINCE WE CANNOT SAY THAT
THE COURT'S CHARACTERIZATION OF THE TAXPAYERS' PROPERTY INTERESTS UNDER
THAT LAW IS CLEARLY ERRONEOUS OR UNREASONABLE, (FN5) THE JUDGMENT IS
AFFIRMED. 

FN1  SECTION 6321.  LIEN FOR TAXES: 

"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT (INCLUDING ANY INTEREST, ADDITIONAL
AMOUNT, ADDITION TO TAX, OR ASSESSABLE PENALTY, 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." 

FN2  SECTION 6322.  PERIOD OF LIEN: 

"UNLESS ANOTHER DATE IS SPECIFICALLY FIXED BY LAW, THE LIEN IMPOSED
BY SECTION 6321 SHALL ARISE AT THE TIME THE ASSESSMENT IS MADE AND
SHALL CONTINUE UNTIL THE LIABILITY FOR THE AMOUNT SO ASSESSED IS
SATISFIED OR BECOMES UNENFORCEABLE BY REASON OF LAPSE OF TIME." 

FN3  N.C. GEN. STAT., 1950, SECS. 44-6 TO 44-12. 

FN4  THIS CASE POINTS UP THE DISTINCTION WE DREW IN AQUILINO.  THE
FACTS HERE SHOW HOW IT SIMPLY BEGS THE QUESTION TO SUGGEST THAT THE
PRINCIPLE OF THE LIEN-PRIORITY CASES IS SOMEHOW SUBVERTED OR EVADED BY
RECOGNIZING THAT WHAT CONSTITUTES THE TAXPAYER'S PROPERTY IN THE FIRST
PLACE IS A QUESTION OF STATE LAW.  THE FACTS SHOW, TOO, THAT IT DOES
NOT PROMOTE CLARITY TO SUBSTITUTE, FOR THE PROPERTY INTERESTS CREATED
BY STATE LAW, A RULE OF FEDERAL PROPERTY LAW, THE MAIN FEATURE OF WHICH
SEEMS TO BE AN INQUIRY INTO WHAT THE CONSEQUENCES WOULD BE IF STATE LAW
WERE DIFFERENT FROM WHAT IT IN FACT IS.  IT IS SAID THAT WE SHOULD
REGARD THE SUBCONTRACTOR'S INTEREST AS EQUIVALENT TO A LIEN ON THE
GENERAL CONTRACTOR'S CLAIM AGAINST THE OWNER, OVERLOOKING THE FACT THAT
THE LAW OF NORTH CAROLINA, AS INTERPRETED BY THE COURT OF APPEALS,
INDICATES THAT THERE IS NO SUCH CLAIM.  IF WE ARE TO EQUATE THE
SUBCONTRACTOR'S INTEREST WITH SOMETHING IT IS NOT, IT WOULD BE MUCH
MORE APPROPRIATE, IN TERMS OF SIMILARITY, TO EQUATE IT WITH THE USUAL
MECHANIC'S LIEN OF A SUBCONTRACTOR ON THE OWNER'S PROPERTY BEING
IMPROVED - WHICH OF COURSE IS NOT THE GENERAL CONTRACTOR'S PROPERTY,
AND WHICH COULD NOT BE TAKEN BY THE UNITED STATES UNDER A LIEN AGAINST
THE GENERAL CONTRACTOR.  THIS ONLY POINTS UP THE LACK OF PRECISION AND
CONTENT IN THE PROPOSED FEDERAL DEFINITION OF PROPERTY.  SEE ALSO
FIDELITY & DEPOSIT CO. OF MD. V. NEW YORK CITY HOUSING AUTH., 241 F.2D
142 (C.A.2D CIR.), CITED WITH APPROVAL IN UNITED STATES V. BESS, 357
U.S. 51, 55. 

FN5  SEE SIMS V. UNITED STATES, 359 U.S. 108, 114; RAGAN V. MERCHANTS
TRANSFER & WAREHOUSE CO., 337 U.S. 530, 534; ESTATE OF SPIEGEL V.
COMMISSIONER, 335 U.S. 701, 707-708. 

FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, CONCURRED IN BY MR.
JUSTICE BLACK, SEE ANTE, P. 516. 
..END :
















BROTHERHOOD OF LOCOMOTIVE ENGINEERS V. MISSOURI-KANSAS-TEXAS RAILROAD
CO. 363 U.S. 528 


NO. 165.  ARGUED APRIL 20, 1960.  - DECIDED JUNE 20, 1960.  - 266 F.2D
335, REVERSED. 


AFTER CHANGING FROM SHORT-RANGE STEAM LOCOMOTIVES TO LONGER-RANGE
DIESEL LOCOMOTIVES, RESPONDENT RAILROADS ISSUED GENERAL ORDERS DOUBLING
THE LENGTH OF THEIR WAY-FREIGHT RUNS, THEREBY ELIMINATING THE JOBS OF
TWO OF THEIR FIVE-MAN WAY-FREIGHT CREWS AND CHANGING THE HOME OR AWAY
FROM-HOME TERMINALS OF THE REMAINING CREWS.  AFTER UNSUCCESSFULLY
INVOKING THE SERVICES OF THE NATIONAL MEDIATION BOARD, THE UNIONS
REPRESENTING THE MEMBERS OF THESE CREWS CALLED A STRIKE.  THE RAILROADS
SUBMITTED THE DISPUTE TO THE NATIONAL RAILROAD ADJUSTMENT BOARD AND
SUED FOR INJUNCTIVE RELIEF.  THE DISTRICT COURT ENJOINED THE STRIKE
PENDING DECISION BY THE ADJUSTMENT BOARD, BUT ONLY ON CONDITION THAT
THE RAILROADS EITHER (1) RESTORE THE PRE-EXISTING SITUATION, OR (2) PAY
THE EMPLOYEES ADVERSELY AFFECTED THE WAGES THEY WOULD HAVE RECEIVED HAD
THE ORDERS NOT BEEN ISSUED.  HELD:  IN GRANTING AN INJUNCTION TO
PROTECT THE JURISDICTION OF THE ADJUSTMENT BOARD, THE DISTRICT COURT
HAD THE EQUITABLE POWER TO IMPOSE THESE CONDITIONS TO PROTECT THE
EMPLOYEES AGAINST A HARMFUL CHANGE IN WORKING CONDITIONS DURING
PENDENCY OF THE DISPUTE BEFORE THE ADJUSTMENT BOARD.  PP. 529-535. 

BROTHERHOOD OF LOCOMOTIVE ENGINEERS ET AL. V. MISSOURI-KANSAS-TEXAS
RAILROAD CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A QUESTION CONCERNING THE JURISDICTION OF A
FEDERAL DISTRICT COURT TO IMPOSE CERTAIN CONDITIONS UPON A STRIKE
INJUNCTION ISSUED IN A RAILWAY LABOR DISPUTE. 

THE ESSENTIAL FACTS ARE NOT COMPLICATED.  THE RESPONDENT RAILROADS
OPERATE A 302-MILE BRANCH BETWEEN WICHITA FALLS, TEXAS, AND FORGAN,
OKLAHOMA.  THE LINE WAS ORIGINALLY OPERATED WITH STEAM LOCOMOTIVES
CAPABLE OF ONLY SHORT RUNS, AND THIS NECESSITATED THE STATIONING OF
FIVE WAY-FREIGHT CREWS ALONG THE ROUTE.  AFTER LONGER-RANGE DIESEL
LOCOMOTIVES WERE PURCHASED TO REPLACE THE STEAM EQUIPMENT, THE
RAILROADS ISSUED GENERAL ORDERS WHICH DOUBLED THE LENGTH OF THE WAY
FREIGHT RUNS, THEREBY ELIMINATING THE JOBS OF TWO OF THE FIVE WAY
FREIGHT CREWS AND CHANGING THE HOME OR AWAY-FROM-HOME TERMINALS OF THE
REMAINING CREWS. 

THE PETITIONER BROTHERHOODS, REPRESENTING THE ENGINEERS, FIREMEN,
CONDUCTORS AND BRAKEMEN AFFECTED, PROTESTED THE ISSUANCE OF THE ORDERS
AND INVOKED THE SERVICES OF THE NATIONAL MEDIATION BOARD.  NONETHELESS,
THE RAILROADS PUT THE CHANGE INTO EFFECT.  AFTER THE BOARD ADVISED THE
PARTIES THAT IT DID NOT CONSIDER THE DISPUTE ONE SUBJECT TO MEDIATION,
THE UNIONS CALLED A STRIKE.  ON THE SAME DAY THE RAILROADS FILED A
COMPLAINT FOR INJUNCTIVE RELIEF IN THE FEDERAL DISTRICT COURT AND
OBTAINED A TEMPORARY RESTRAINING ORDER.  THE RAILROADS THEN SUBMITTED
THE DISPUTE TO THE NATIONAL RAILROAD ADJUSTMENT BOARD, TO NATIONAL
COMMITTEES AND DISPUTES COMMITTEES ESTABLISHED BY THE COLLECTIVE
BARGAINING AGREEMENTS, AND TO THE NATIONAL MEDIATION BOARD.  THEY
AMENDED THEIR COMPLAINT IN THE DISTRICT COURT TO ALLEGE THE VARIOUS
SUBMISSIONS. 

AFTER A HEARING, THE DISTRICT COURT GRANTED THE INJUNCTION PENDING
DECISION BY THE ADJUSTMENT BOARD, BUT IT DID SO UPON CERTAIN CONDITIONS
WHICH ARE THE SUBJECT OF THE CONTROVERSY BEFORE US. THESE CONDITIONS
REQUIRED THAT THE RAILROADS EITHER (1) RESTORE THE SITUATION WHICH
EXISTED PRIOR TO THE GENERAL ORDERS, OR (2) PAY THE EMPLOYEES ADVERSELY
AFFECTED BY THE ORDERS, THE WAGES THEY WOULD HAVE RECEIVED HAD THE
ORDERS NOT BEEN ISSUED. 

BOTH SIDES APPEALED, THE UNIONS FROM THE INJUNCTION AGAINST THE
STRIKE, AND THE RAILROADS FROM THE CONDITIONS REQUIRING PRESERVATION OF
THE STATUS QUO.  THE COURT OF APPEALS SUSTAINED THE INJUNCTION BUT
VACATED THE CONDITIONS, HOLDING THAT THE DISTRICT COURT HAD NO POWER TO
ATTACH THEM.  266 F.2D 335.  IN SO HOLDING, THE COURT OF APPEALS
REASONED THAT IMPOSITION OF CONDITIONS OF THIS CHARACTER INVOLVED A
PRELIMINARY JUDGMENT ON THE MERITS OF A "MINOR DISPUTE," THE RESOLUTION
OF WHICH IS COMMITTED BY THE RAILWAY LABOR ACT, SEC. 3(I), 48 STAT.
1189, 45 U.S.C. SEC. 153, TO THE EXCLUSIVE JURISDICTION OF THE
ADJUSTMENT BOARD.  THE QUESTION OF A DISTRICT JUDGE'S JURISDICTION TO
IMPOSE THIS TYPE OF CONDITION UPON AN INJUNCTION ISSUED TO PRESERVE THE
ADJUSTMENT BOARD'S JURISDICTION IS BOTH RECURRING AND IMPORTANT IN THE
FIELD OF LABOR-MANAGEMENT RELATIONS.  CONSEQUENTLY, WE GRANTED
CERTIORARI, BUT LIMITED THE GRANT TO THIS ISSUE.  (FN1) 

THIS COURT HELD IN BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER
& IND. R. CO., 353 U.S. 30, THAT A FEDERAL DISTRICT COURT MAY ENJOIN
STRIKES ARISING OUT OF "MINOR DISPUTES" - GENERALLY SPEAKING, DISPUTES
RELATING TO CONSTRUCTION OF A CONTRACT (FN2) - WHEN THEY HAVE BEEN
PROPERLY SUBMITTED TO THE NATIONAL RAILROAD ADJUSTMENT BOARD.  WE
CONCLUDED THAT SUCH AN INJUNCTION DOES NOT FALL WITHIN THE PROHIBITIONS
OF THE NORRIS-LAGUARDIA ACT, 29 U.S.C. SEC. 101 ET SEQ., BECAUSE OF THE
SUPERSEDING PURPOSE OF THE RAILWAY LABOR ACT TO ESTABLISH A SYSTEM OF
COMPULSORY ARBITRATION FOR THIS TYPE OF DISPUTE, A PURPOSE WHICH MIGHT
BE FRUSTRATED IF STRIKES COULD NOT BE ENJOINED DURING THE CONSIDERATION
OF SUCH A DISPUTE BY THE BOARD.  THIS CASE PRESENTS A FURTHER QUESTION
AS TO NATURE OF THE RELIEF WHICH MAY BE GRANTED UNDER THE CHICAGO RIVER
RULE - SPECIFICALLY, WHETHER THE INJUNCTION GRANTED THE RAILROAD MAY BE
QUALIFIED BY CONDITIONS IMPOSED BY THE DISTRICT COURT UNDER TRADITIONAL
EQUITABLE CONSIDERATIONS.  (FN3) 

IF THE DISTRICT COURT IS FREE TO EXERCISE THE TYPICAL POWERS OF A
COURT OF EQUITY, IT HAS THE POWER TO IMPOSE CONDITIONS REQUIRING
MAINTENANCE OF THE STATUS QUO.  CONDITIONS OF THIS NATURE TRADITIONALLY
MAY BE MADE THE PRICE OF RELIEF WHEN THE INJUNCTIVE POWERS OF THE COURT
ARE INVOKED AND THE CONDITIONS ARE NECESSARY TO DO JUSTICE BETWEEN THE
PARTIES.  (FN4)  "THE AWARD OF AN INTERLOCUTORY INJUNCTION BY COURTS OF
EQUITY HAS NEVER BEEN REGARDED AS STRICTLY A MATTER OF RIGHT, EVEN
THOUGH IRREPARABLE INJURY MAY OTHERWISE RESULT TO THE PLAINTIFF  ...  .
THE COURT WILL AVOID ...  INJURY SO FAR AS MAY BE, BY ATTACHING
CONDITIONS TO THE AWARD  ...  ."  YAKUS V. UNITED STATES, 321 U.S. 414,
440.  "IT IS THE DUTY OF A COURT OF EQUITY GRANTING INJUNCTIVE RELIEF
TO DO SO UPON CONDITIONS THAT WILL PROTECT ALL  ...  WHOSE INTERESTS
THE INJUNCTION MAY AFFECT."  INLAND STEEL CO. V. UNITED STATES, 306
U.S. 153, 157.  SINCE THE POWER TO CONDITION RELIEF IS ESSENTIAL TO
ENSURE THAT EXTRAORDINARY EQUITABLE REMEDIES WILL NOT BECOME THE
ENGINES OF INJUSTICE, IT WOULD REQUIRE THE CLEAREST LEGISLATIVE
DIRECTION TO JUSTIFY THE TRUNCATION OF THAT POWER. 

SUCH DIRECTION, IF IT EXISTS, PRESUMABLY MUST BE DERIVED FROM THE
RAILWAY LABOR ACT ITSELF, AND SINCE THAT ACT CONTAINS NO EXPRESS
PROVISIONS CIRCUMSCRIBING THE EQUITABLE POWERS OF THE COURT, SUCH
LIMITATIONS, IF ANY, MUST BE CREATED BY CLEAR IMPLICATION. 

THE COURT OF APPEALS FOUND THE LIMITING LEGISLATIVE DIRECTION IN THE
PROVISION OF THE RAILWAY LABOR ACT GRANTING EXCLUSIVE PRIMARY
JURISDICTION OVER "MINOR DISPUTES" TO THE NATIONAL RAILROAD ADJUSTMENT
BOARD.  ITS THEORY WAS THAT THE CONDITIONS IMPOSED BY THE DISTRICT
COURT CONSTITUTED A PRELIMINARY DECISION ON THE MERITS OF THE PARTIES'
DISPUTE AND THEREFORE ENCROACHED UPON THE JURISDICTION OF THE BOARD. 

IT IS TRUE THAT THE FEDERAL COURTS OUGHT NOT ACT IN SUCH A WAY AS TO
INFRINGE UPON THE JURISDICTION OF THE BOARD, ORDER OF CONDUCTORS V.
PITNEY, 326 U.S. 561.  BUT NEITHER THIS PRINCIPLE NOR THE PITNEY CASE
ITSELF LEADS US TO THE COURT OF APPEALS' CONCLUSION. 

IN PITNEY, WE HELD THAT THE DISTRICT COURT IN EXERCISE OF ITS EQUITY
POWERS ANCILLARY TO ITS JURISDICTION AS A RAILROAD REORGANIZATION COURT
UNDER 11 U.S.C. SEC. 205, SHOULD NOT HAVE GRANTED A PERMANENT
INJUNCTION FINALLY DETERMINING THE MERITS OF A DISPUTE WHICH WAS WITHIN
THE JURISDICTION OF THE BOARD, BUT THAT, INSTEAD, IT SHOULD HAVE
WITHHELD SUCH RELIEF PENDING A DETERMINATION BY THE BOARD. 

IN THE CASE AT BAR, HOWEVER, THERE WAS NO DETERMINATION OF THE MERITS
OF THE DISPUTE BY THE DISTRICT COURT.  NOTHING IN THE RECORD OF THE
PROCEEDINGS IN THE DISTRICT COURT SUGGESTS THAT ANY VIEW ON THE MERITS
WAS CONSIDERED.  INSTEAD, THE RECORD AFFIRMATIVELY DISCLOSES THAT THE
DISTRICT JUDGE WAS QUITE AWARE THAT IT WAS NOT HIS FUNCTION TO CONSTRUE
THE CONTRACTUAL PROVISIONS UPON WHICH THE PARTIES RELIED FOR THEIR
RESPECTIVE POSITIONS ON THE MERITS.  IN SUM, THE JUDGE WAS SCRUPULOUS
TO AVOID ENCROACHING UPON THE JURISDICTION OF THE BOARD.  (FN5) 

THE COURT OF APPEALS APPARENTLY CONCLUDED THAT A DECISION ON THE
MERITS WAS INHERENT IN THE VERY CONDITIONING OF THE INJUNCTION.  IT IS
TRUE THAT A DISTRICT COURT MUST MAKE SOME EXAMINATION OF THE NATURE OF
THE DISPUTE BEFORE CONDITIONING RELIEF SINCE NOT ALL DISPUTES COMING
BEFORE THE ADJUSTMENT BOARD THREATEN IRREPARABLE INJURY AND JUSTIFY THE
ATTACHMENT OF A CONDITION.  TO FULFILL ITS FUNCTION THE DISTRICT COURT
MUST ALSO CONSIDER THE HARDSHIPS, IF ANY, THAT WOULD ARISE IF THE
EMPLOYEES WERE REQUIRED TO AWAIT THE BOARD'S SOMETIMES LONG-DELAYED
DECISIONS WITHOUT RECOURSE TO A STRIKE.  BUT THIS EXAMINATION OF THE
NATURE OF THE DISPUTE IS SO UNLIKE THAT WHICH THE ADJUSTMENT BOARD WILL
MAKE OF THE MERITS OF THE SAME DISPUTE, AND IS FOR SUCH A DISSIMILAR
PURPOSE, THAT IT COULD NOT INTERFERE WITH THE LATER CONSIDERATION OF
THE GRIEVANCE BY THE ADJUSTMENT BOARD. 

MOREOVER, SUCH AN EXAMINATION IS INHERENT IN THE GRANT OF THE
INJUNCTION ITSELF.  YET IT IS SETTLED, SINCE CHICAGO RIVER, THAT AN
INJUNCTION MAY ISSUE TO PRESERVE THE BOARD'S JURISDICTION.  WE THINK
THAT, IN LOGIC, WE MUST HOLD THAT THE CONDITIONS ARE PROPER ALSO, AT
LEAST WHERE THEY ARE DESIGNED NOT ONLY TO PROMOTE THE INTERESTS OF
JUSTICE, BUT ALSO TO PRESERVE THE JURISDICTION OF THE BOARD. 

IT IS NOT DIFFICULT TO PERCEIVE HOW THE CONDITIONS IMPOSED IN THIS
CASE COULD BE DEEMED TO SERVE TO PROTECT THE JURISDICTION OF THE
BOARD.  THE DISPUTE OUT OF WHICH THE JUDICIAL CONTROVERSY AROSE DOES
NOT MERELY CONCERN RATES OF PAY OR JOB ASSIGNMENTS, BUT RATHER INVOLVES
THE DISCHARGE OF EMPLOYEES FROM POSITIONS LONG HELD AND THE DISLOCATION
OF OTHERS FROM THEIR HOMES.  FROM THE POINT OF VIEW OF THESE EMPLOYEES,
THE CRITICAL POINT IN THE DISPUTE MAY BE WHEN THE CHANGE IS MADE, FOR,
BY THE TIME OF THE FREQUENTLY LONG-DELAYED BOARD DECISION, IT MIGHT
WELL BE IMPOSSIBLE TO MAKE THEM WHOLE IN ANY REALISTIC SENSE.  IF THIS
BE SO, THE ACTION OF THE DISTRICT JUDGE, RATHER THAN DEFEATING THE
BOARD'S JURISDICTION, WOULD OPERATE TO PRESERVE THAT JURISDICTION BY
PREVENTING INJURY SO IRREPARABLE THAT A DECISION OF THE BOARD IN THE
UNIONS' FAVOR WOULD BE BUT AN EMPTY VICTORY. 

IT IS TRUE THAT PREVENTING THE RAILROAD FROM INSTITUTING THE CHANGE
IMPOSED UPON IT THE BURDEN OF MAINTAINING WHAT MAY BE A LESS EFFICIENT
AND MORE COSTLY OPERATION.  THE BALANCING OF THESE COMPETING CLAIMS OF
IRREPARABLE HARDSHIP IS, HOWEVER, THE TRADITIONAL FUNCTION OF THE
EQUITY COURT, THE EXERCISE OF WHICH IS REVIEWABLE ONLY FOR ABUSE OF
DISCRETION.  AND ALTHOUGH RESPONDENTS MAINTAIN THAT THERE HAS BEEN SUCH
AN ABUSE IN THIS CASE, SCRUTINY OF THE RECORD DOES NOT PERSUADE US THAT
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE JUDGE'S ACTION. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  THE ORDER GRANTING CERTIORARI LIMITS OUR REVIEW TO THE FOLLOWING
QUESTION: 

"WHETHER A DISTRICT COURT UNDER CIRCUMSTANCES WHERE A DISPUTE ARISING
UNDER THE RAILWAY LABOR ACT HAS BEEN SUBMITTED BY A RAILROAD TO THE
NATIONAL RAILROAD ADJUSTMENT BOARD AND AN INJUNCTION AGAINST A STRIKE
BY EMPLOYEES IS SOUGHT ON AUTHORITY OF BROTHERHOOD OF RAILROAD TRAINMEN
V. CHICAGO RIVER AND IND. RR CO., 353 U.S. 30, MAY ON THE GRANTING OF
AN INJUNCTION IMPOSE REASONABLE CONDITIONS DESIGNED TO PROTECT THE
EMPLOYEES AGAINST A HARMFUL CHANGE IN WORKING CONDITIONS DURING
PENDENCY OF THE DISPUTE BEFORE THE ADJUSTMENT BOARD BY ORDERING THAT
THE RAILROAD RESTORE THE STATUS QUO, OR, IN THE ALTERNATIVE, PAY THE
EMPLOYEES THE AMOUNT THEY WOULD HAVE BEEN PAID HAD CHANGES IN WORKING
CONDITIONS GIVING RISE TO THE DISPUTE NOT BEEN MADE."  361 U.S. 810. 

FN2  SEE ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S. 711, 723; BROTHERHOOD
OF RAILROAD TRAINMEN V. CHICAGO RIVER & IND. R. CO., 353 U.S. 30, 33
34. 

FN3  WE DID NOT DECIDE IN CHICAGO RIVER, AND WE DO NOT DECIDE HERE,
WHETHER A FEDERAL COURT CAN, DURING THE PENDENCY OF A DISPUTE BEFORE
THE BOARD, ENJOIN A CARRIER FROM EFFECTUATING THE CHANGES WHICH GAVE
RISE TO AND CONSTITUTE THE SUBJECT MATTER OF THE DISPUTE, INDEPENDENTLY
OF ANY SUIT BY THE RAILROAD FOR EQUITABLE RELIEF.  AS WE READ THE ORDER
OF THE DISTRICT COURT, THIS CASE DOES NOT INVOLVE INDEPENDENT RELIEF
FOR THE UNION. 

FN4  SEE 2 POMEROY, EQUITY JURISPRUDENCE, 51, 57-59 (5TH ED. 1941); 1
STORY, EQUITY JURISPRUDENCE, SECS. 69-76 (14TH ED. 1918); CENTRAL
KENTUCKY NATURAL GAS CO. V. RAILROAD COMM'N, 290 U.S. 264, 271. 

FN5  THE JUDGE SAID AT ONE STAGE OF THE PROCEEDING: 

"NOW, LET US SEE WHERE WE ARE.  THERE IS A CONTRACT.  WE HAVE NOT
ANALYZED THE CONTRACT BECAUSE IT IS USELESS FOR US TO ANALYZE IT
BECAUSE REGARDLESS OF WHAT CONCLUSION WE REACH ABOUT THE PROVISIONS OF
THAT CONTRACT WE HAVE NO RIGHT TO ENFORCE ITS PROVISIONS OR DENY ITS
PROVISIONS.  THOSE CONDITIONS CAN BE DETERMINED FIRST ONLY BY THE
RAILROAD ADJUSTMENT ACT,  ...  . 

"THIS COURT IS WITHOUT POWER TO CONSTRUE THAT CONTRACT, WHICH THE
DEFENDANTS CLAIM HAS BEEN BROKEN BY THE COMPANY."  R. 316-317. 

MR. JUSTICE HARLAN AND MR. JUSTICE STEWART, WHILE AGREEING WITH THE
COURT THAT THE DISTRICT COURT HAD POWER TO CONDITION THE ISSUANCE OF
THE INJUNCTION, WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND THE CASE TO THAT COURT FOR CONSIDERATION OF RESPONDENTS'
CONTENTION THAT THE DISTRICT COURT'S ACTION INVOLVED AN ABUSE OF
DISCRETION. 
..END :



FEDERAL TRADE COMMISSION V. ANHEUSER-BUSCH 363 U.S. 536 


NO. 389.  ARGUED MARCH 2, 1960.  - DECIDED JUNE 20, 1960.  - 265 F.2D
677, REVERSED. 


THE FEDERAL TRADE COMMISSION FOUND THAT RESPONDENT, A LEADING NATIONAL
BREWER WHICH SELLS A SO-CALLED PREMIUM BEER AT HIGHER PRICES THAN THE
BEERS OF REGIONAL AND LOCAL BREWERIES IN THE GREAT MAJORITY OF MARKETS,
HAD REDUCED ITS PRICES ONLY TO THOSE CUSTOMERS IN THE ST. LOUIS AREA
WHILE MAINTAINING HIGHER PRICES TO ALL PURCHASERS OUTSIDE THE ST. LOUIS
AREA, AND THEREBY HAD "DISCRIMINATED IN PRICE" AS BETWEEN PURCHASERS
DIFFERENTLY LOCATED, AND THAT THIS HAD DIVERTED SUBSTANTIAL BUSINESS
FROM RESPONDENT'S ST. LOUIS COMPETITORS, HAD SUBSTANTIALLY LESSENED
COMPETITION AND TENDED TO CREATE A MONOPOLY, IN VIOLATION OF SEC. 2(A)
OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT; AND IT
ORDERED RESPONDENT TO CEASE AND DESIST.  THE COURT OF APPEALS CONCLUDED
THAT THE STATUTORY ELEMENT OF PRICE DISCRIMINATION HAD NOT BEEN
ESTABLISHED, AND IT SET ASIDE THE COMMISSION'S ORDER ON THIS GROUND
ALONE.  HELD:  THE COURT OF APPEALS ERRED IN ITS CONSTRUCTION OF SEC.
2(A); THE EVIDENCE WARRANTED THE COMMISSION'S FINDING OF PRICE
DISCRIMINATION; AND THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED
FOR FURTHER PROCEEDINGS.  PP. 537-554. 

(A)  SECTION 2(A) IS VIOLATED WHEN THERE IS A PRICE DISCRIMINATION
WHICH DEALS THE REQUISITE INJURY TO SELLERS' OR "PRIMARY-LINE"
COMPETITION, EVEN THOUGH BUYERS' OR "SECONDARY-LINE" AND "TERTIARY
LINE" COMPETITION ARE UNAFFECTED.  PP. 542-545. 

(B)  THE COURT OF APPEALS ERRED IN CONCLUDING THAT, SINCE ALL
COMPETING PURCHASERS PAID RESPONDENT THE SAME PRICE, SO FAR AS THE
RECORD DISCLOSED, RESPONDENT'S PRICE CUTS WERE NOT DISCRIMINATORY.  PP.
545-546. 

(C)  A PRICE DISCRIMINATION WITHIN THE MEANING OF THE PORTION OF SEC.
2(A) HERE INVOLVED IS MERELY A PRICE DIFFERENCE; AND, IN ORDER TO
ESTABLISH SUCH A PRICE DISCRIMINATION, IT IS NOT NECESSARY TO SHOW THAT
THE LOWER PRICE IS BELOW COST OR UNREASONABLY LOW FOR THE PURPOSE OR
DESIGN TO ELIMINATE COMPETITION AND THEREBY OBTAIN A MONOPOLY.  PP. 546
553. 

FEDERAL TRADE COMMISSION V. ANHEUSER-BUSCH, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER CERTAIN PRICING ACTIVITIES OF
RESPONDENT, ANHEUSER-BUSCH, INC., CONSTITUTED PRICE DISCRIMINATION
WITHIN THE MEANING OF SEC. 2(A) OF THE CLAYTON ACT, 38 STAT. 730, AS
AMENDED BY THE ROBINSON-PATMAN ACT, 49 STAT. 1526, 15 U.S.C. SEC.
13(A). 


"THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY, WHERE EITHER OR ANY OF THE PURCHASES INVOLVED IN SUCH
DISCRIMINATION ARE IN COMMERCE, WHERE SUCH COMMODITIES ARE SOLD FOR
USE, CONSUMPTION, OR RESALE WITHIN THE UNITED STATES OR ANY TERRITORY
THEREOF OR THE DISTRICT OF COLUMBIA OR ANY INSULAR POSSESSION OR OTHER
PLACE UNDER THE JURISDICTION OF THE UNITED STATES, AND WHERE THE EFFECT
OF SUCH DISCRIMINATION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION OR
TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE, OR TO INJURE,
DESTROY, OR PREVENT COMPETITION WITH ANY PERSON WHO EITHER GRANTS OR
KNOWINGLY RECEIVES THE BENEFIT OF SUCH DISCRIMINATION, OR WITH
CUSTOMERS OF EITHER OF THEM  ...  ." 

THIS CONTROVERSY HAD ITS GENESIS IN A COMPLAINT ISSUED BY THE FEDERAL
TRADE COMMISSION IN 1955, WHICH CHARGED RESPONDENT, A BEER PRODUCER,
WITH A VIOLATION OF SEC. 2(A).  THE COMPLAINT ALLEGED THAT RESPONDENT
HAD "DISCRIMINATED IN PRICE BETWEEN DIFFERENT PURCHASERS OF ITS BEER OF
LIKE GRADE AND QUALITY BY SELLING IT TO SOME OF ITS CUSTOMERS AT HIGHER
PRICES THAN TO OTHERS"; THAT, MORE SPECIFICALLY, RESPONDENT HAD LOWERED
PRICES IN THE ST. LOUIS, MISSOURI, MARKET, WITHOUT MAKING SIMILAR PRICE
REDUCTIONS IN OTHER MARKETS; THAT THIS DISCRIMINATION HAD ALREADY
DIVERTED SUBSTANTIAL BUSINESS FROM RESPONDENT'S ST. LOUIS COMPETITORS;
THAT IT WAS "SUFFICIENT" TO HAVE THE SAME IMPACT IN THE FUTURE; THAT
THERE WAS A "REASONABLE PROBABILITY" IT WOULD SUBSTANTIALLY LESSEN
COMPETITION IN RESPONDENT'S LINE OF COMMERCE; AND THAT IT MIGHT ALSO
TEND TO CREATE A MONOPOLY OR TO INJURE, DESTROY, OR PREVENT COMPETITION
WITH RESPONDENT.  THUS THE COMPLAINT DESCRIBED A PRICING PATTERN WHICH
HAD ADVERSE EFFECTS ONLY UPON SELLERS' COMPETITION, COMMONLY TERMED
PRIMARY-LINE COMPETITION, AND NOT UPON BUYERS' COMPETITION, COMMONLY
TERMED SECONDARY-LINE COMPETITION. 

BOTH THE HEARING EXAMINER AND, ON APPEAL, THE COMMISSION HELD THAT
THE EVIDENCE INTRODUCED AT THE HEARING ESTABLISHED A VIOLATION OF SEC.
2(A).  THE COMMISSION FOUND THE FACTS TO BE AS FOLLOWS: 

RESPONDENT, A LEADING NATIONAL BREWER, (FN1) SELLS A SO-CALLED
PREMIUM BEER, WHICH IS PRICED HIGHER THAN THE BEERS OF REGIONAL AND
LOCAL BREWERIES IN THE GREAT MAJORITY OF MARKETS, ALTHOUGH BOTH THE
PRICE OF RESPONDENT'S BEER AND THE PREMIUM DIFFERENTIAL VARY FROM
MARKET TO MARKET AND FROM TIME TO TIME.  DURING THE PERIOD RELEVANT TO
THIS CASE, RESPONDENT HAD THREE PRINCIPAL COMPETITORS IN THE ST. LOUIS
AREA, ALL REGIONAL BREWERIES:  FALSTAFF BREWING CORPORATION,
GRIESEDIECK WESTERN BREWING COMPANY, AND GRIESEDIECK BROTHERS BREWERY
COMPANY.  (FN2)  IN ACCORD WITH THE GENERALLY PREVAILING PRICE
STRUCTURE, THESE BREWERIES NORMALLY SOLD THEIR PRODUCTS AT A PRICE
SUBSTANTIALLY LOWER THAN RESPONDENT'S. 

IN 1953, MOST OF THE NATIONAL BREWERIES, INCLUDING RESPONDENT,
GRANTED THEIR EMPLOYEES A WAGE INCREASE, AND ON OCTOBER 1, 1953, THEY
PUT INTO EFFECT A GENERAL PRICE INCREASE.  (FN3)  ALTHOUGH MANY
REGIONAL AND LOCAL BREWERIES THROUGHOUT THE COUNTRY FOLLOWED SUIT BY
RAISING THEIR PRICES, FALSTAFF, GRIESEDIECK WESTERN, AND GRIESEDIECK
BROTHERS MAINTAINED THEIR PRE-OCTOBER PRICE OF $2.35 PER STANDARD
CASE.  ALTHOUGH RESPONDENT'S SALES IN THE ST. LOUIS AREA DID NOT
DECLINE, ITS NATIONAL SALES FELL, ALONG WITH INDUSTRY SALES IN
GENERAL. 

ON JANUARY 4, 1954, RESPONDENT LOWERED ITS PRICE IN THE ST. LOUIS
MARKET FROM $2.93 TO $2.68 PER CASE, THEREBY REDUCING THE PREVIOUS 58
CENTS DIFFERENTIAL TO 33 CENTS.  A SECOND PRICE CUT OCCURRED ON JUNE
21, 1954, THIS TIME TO $2.35, THE SAME PRICE CHARGED BY RESPONDENT'S
THREE COMPETITORS.  ON JANUARY 3, 1954, THE DAY BEFORE THE FIRST PRICE
CUT, RESPONDENT'S PRICE IN THE ST. LOUIS MARKET HAD BEEN LOWER THAN ITS
PRICE IN OTHER MARKETS, (FN4) AND DURING THE PERIOD OF THE PRICE
REDUCTIONS IN THE ST. LOUIS AREA, RESPONDENT MADE NO SIMILAR PRICE
REDUCTIONS IN ANY OTHER MARKET.  IN MARCH, 1955, RESPONDENT INCREASED
ITS ST. LOUIS PRICE 45 CENTS PER CASE, AND FALSTAFF, GRIESEDIECK
WESTERN, AND GRIESEDIECK BROTHERS ALMOST IMMEDIATELY RAISED THEIR
PRICES 15 CENTS, WHICH RE-ESTABLISHED A SUBSTANTIAL DIFFERENTIAL.  THIS
ENDED THE PERIOD OF ALLEGED PRICE DISCRIMINATION. 

THE COMMISSION CONCLUDED: 

"AS A RESULT OF MAINTAINING HIGHER PRICES TO ALL PURCHASERS OUTSIDE
OF THE ST. LOUIS AREA AND CHARGING THE LOWER PRICES, AS REDUCED IN
1954, TO ONLY THOSE CUSTOMERS IN THE ST. LOUIS AREA, RESPONDENT
DISCRIMINATED IN PRICE AS BETWEEN PURCHASERS DIFFERENTLY LOCATED." 

SINCE, AS WILL APPEAR, IT IS THIS ASPECT OF THE DECISION WHICH
CONCERNS US, IT IS NECESSARY ONLY TO SKETCH SUMMARILY THE REMAINING
ELEMENTS IN THE COMMISSION'S DECISION.  THE COMMISSION'S FINDING OF
COMPETITIVE INJURY WAS PREDICATED TO A SUBSTANTIAL DEGREE UPON WHAT IT
REGARDED AS A DEMONSTRATED DIVERSION OF BUSINESS TO RESPONDENT FROM ITS
ST. LOUIS COMPETITORS DURING THE PERIOD OF PRICE DISCRIMINATION.  FOR
EXAMPLE, BY COMPARING THAT PERIOD WITH A SIMILAR PERIOD DURING THE
PREVIOUS YEAR, THE COMMISSION DETERMINED THAT RESPONDENT'S SALES HAD
RISEN 201.5%, FALSTAFF'S SALES HAD DROPPED SLIGHTLY, GRIESEDIECK
WESTERN'S SALES HAD FALLEN ABOUT 33%, AND GRIESEDIECK BROTHERS' SALES
HAD PLUMMETED ABOUT 41%.  IN TABULAR FORM, THE RELATIVE MARKET
POSITIONS OF THE ST. LOUIS SELLERS WERE AS FOLLOWS:

                  DEC. 31      JUNE 30      MAR. 1      JULY 31

                                      1953         1954        1955
   1955 

RESPONDENT         12.5        16.55       39.3         21.03 

GRIESEDIECK BROTHERS                    14.4        12.58        4.8
 7.36 

FALSTAFF                                29.4      32.05       29.1
36.62 

GRIESEDIECK WESTERN                  38.9        33.         23.1
27.78 

ALL OTHERS                               4.8         5.82    3.94
7.21 

THE COMMISSION REJECTED RESPONDENT'S CONTENTION THAT ITS PRICE
REDUCTIONS HAD BEEN MADE IN GOOD FAITH TO MEET THE EQUALLY LOW PRICE OF
A COMPETITOR WITHIN THE MEANING OF THE PROVISO TO SEC. 2(B) OF THE ACT,
49 STAT. 1526, 15 U.S.C. SEC. 13(B), AND ALSO FOUND RESPONDENT'S ATTACK
UPON THE EXAMINER'S CEASE-AND-DESIST ORDER TO BE MERITLESS.  THE
COMMISSION THEREUPON ADOPTED AND ISSUED THAT ORDER, WITH ONLY SLIGHT
MODIFICATION.  (FN5) 

ON REVIEW, THE COURT OF APPEALS SET ASIDE THE ORDER.  265 F.2D 677. 
WE GRANTED CERTIORARI, 361 U.S. 880, BECAUSE A CONFLICT HAD DEVELOPED
AMONG THE COURTS OF APPEALS ON A QUESTION OF IMPORTANCE IN THE
ADMINISTRATION OF THE STATUTE.  SEE ATLAS BUILDING PRODUCTS CO. V.
DIAMOND BLOCK & GRAVEL CO., 269 F.2D 950 (C.A. 10TH CIR.). 

THE LIMITED NATURE OF OUR INQUIRY CAN BE FULLY APPRECIATED ONLY IN
THE LIGHT OF THE CORRESPONDINGLY NARROW DECISION OF THE COURT OF
APPEALS, WHICH RESTED ENTIRELY UPON THE HOLDING THAT THE THRESHOLD
STATUTORY ELEMENT OF PRICE DISCRIMINATION HAD NOT BEEN ESTABLISHED. 
THUS THE COURT OF APPEALS DID NOT CONSIDER WHETHER THE RECORD SUPPORTED
A FINDING OF THE REQUISITE COMPETITIVE INJURY, WHETHER RESPONDENT'S
GOOD FAITH DEFENSE WAS VALID, OR WHETHER THE COMMISSION'S ORDER WAS
UNDULY BROAD.  WE HAVE CONCLUDED THAT THE COURT OF APPEALS ERRED IN ITS
CONSTRUCTION OF SEC. 2(A) AND THAT THE EVIDENCE FULLY WARRANTED THE
COMMISSION'S FINDING OF PRICE DISCRIMINATION.  RESPONDENT WOULD HAVE US
AFFIRM NONETHELESS ON ANY OF THE ALTERNATIVE GROUNDS IT STRONGLY URGED
BELOW.  WHILE THIS IS, TO BE SURE, AN APPROPRIATE COURSE OF ACTION
UNDER PROPER CIRCUMSTANCES, WE BELIEVE THAT IT WOULD BE UNWISE FOR US
TO GRAPPLE WITH THESE INTRICATE PROBLEMS, THE SOLUTION TO WHICH
REQUIRES A CAREFUL EXAMINATION OF A VOLUMINOUS RECORD, BEFORE THEY HAVE
BEEN DEALT WITH BY THE COURT OF APPEALS.  THEREFORE, THE CASE WILL BE
REMANDED, AND OF COURSE NOTHING IN THIS OPINION SHOULD BE INTERPRETED
AS INTIMATING A VIEW UPON THE REMAINING ASPECTS OF THE CONTROVERSY. 

A DISCUSSION OF THE IMPORT OF THE SEC. 2(A) PHRASE "DISCRIMINATE IN
PRICE," IN THE CONTEXT OF THIS CASE, MUST BEGIN WITH A CONSIDERATION OF
THE PURPOSE OF THE STATUTE WITH RESPECT TO PRIMARY-LINE COMPETITION. 
THE COURT OF APPEALS EXPRESSED SOME DOUBT THAT SEC. 2(A) WAS DESIGNED
TO PROTECT THIS COMPETITION AT ALL, BUT RESPONDENT HAS NOT UNDERTAKEN
TO DEFEND THAT POSITION HERE.  THIS IS ENTIRELY UNDERSTANDABLE.  WHILE
"PRECISION OF EXPRESSION IS NOT AN OUTSTANDING CHARACTERISTIC OF THE
ROBINSON-PATMAN ACT," AUTOMATIC CANTEEN CO. V. FEDERAL TRADE COMM'N,
346 U.S. 61, 65, IT IS CERTAIN AT LEAST THAT SEC. 2(A) IS VIOLATED
WHERE THERE IS A PRICE DISCRIMINATION WHICH DEALS THE REQUISITE INJURY
TO PRIMARY-LINE COMPETITION, EVEN THOUGH SECONDARY-LINE AND TERTIARY
LINE COMPETITION ARE UNAFFECTED.  THE STATUTE COULD HARDLY BE READ ANY
OTHER WAY, FOR IT FORBIDS PRICE DISCRIMINATIONS "WHERE THE EFFECT  ...
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." 

THE LEGISLATIVE HISTORY OF SEC. 2(A) IS EQUALLY PLAIN.  THE SECTION,
WHEN ORIGINALLY ENACTED AS PART OF THE CLAYTON ACT IN 1914, WAS BORN OF
A DESIRE BY CONGRESS TO CURB THE USE BY FINANCIALLY POWERFUL
CORPORATIONS OF LOCALIZED PRICE-CUTTING TACTICS WHICH HAD GRAVELY
IMPAIRED THE COMPETITIVE POSITION OF OTHER SELLERS.  (FN6)  IT IS, OF
COURSE, QUITE TRUE - AND TOO WELL KNOWN TO REQUIRE EXTENSIVE EXPOSITION
- THAT THE 1936 ROBINSON-PATMAN AMENDMENTS TO THE CLAYTON ACT WERE
MOTIVATED PRINCIPALLY BY CONGRESSIONAL CONCERN OVER THE IMPACT UPON
SECONDARY-LINE COMPETITION OF THE BURGEONING OF MAMMOTH PURCHASERS,
NOTABLY CHAIN STORES.  (FN7)  HOWEVER, THE LEGISLATIVE HISTORY OF THESE
AMENDMENTS LEAVES NO DOUBT THAT CONGRESS WAS INTENT UPON STRENGTHENING
THE CLAYTON ACT PROVISIONS, NOT WEAKENING THEM, AND THAT IT WAS NO PART
OF CONGRESS' PURPOSE TO CURTAIL THE PRE-EXISTING APPLICABILITY OF SEC.
2(A) TO PRICE DISCRIMINATIONS AFFECTING PRIMARY-LINE COMPETITION. 
(FN8) 

THE FEDERAL COURTS, BOTH BEFORE AND AFTER THE AMENDMENT OF SEC. 2(A),
HAVE TAKEN THIS VIEW OF THE SCOPE OF THE STATUTE IN CASES INVOLVING
IMPAIRMENT OF PRIMARY-LINE COMPETITION.  SEE PORTO-RICAN AMERICAN
TOBACCO CO. V. AMERICAN TOBACCO CO., 30 F.2D 234 (C.A.2D CIR. 1929);
E.B. MULLER & CO. V. FEDERAL TRADE COMM'N, 142 F.2D 511 (C.A. 6TH CIR.
1944); MARYLAND BAKING CO. V. FEDERAL TRADE COMM'N, 243 F.2D 716 (C.A.
4TH CIR. 1957); ATLAS BUILDING PRODUCTS CO. V. DIAMOND BLOCK & GRAVEL
CO., SUPRA (1959).  IN FACT, THE ORIGINAL FOCUS OF SEC. 2(A) ON
SELLERS' COMPETITION WAS SO EVIDENT THAT THIS COURT WAS COMPELLED TO
HOLD EXPLICITLY, CONTRARY TO LOWER COURT DECISIONS, (FN9) THAT THE
STATUTE WAS NOT RESTRICTED TO PRICE DISCRIMINATIONS IMPEDING PRIMARY
LINE COMPETITION, BUT PROTECTED SECONDARY-LINE COMPETITION AS WELL. 
VAN CAMP & SONS V. AMERICAN CAN CO., 278 U.S. 245 (1929).  AND MORE
RECENTLY, IN MOORE V. MEAD'S FINE BREAD CO., 348 U.S. 115 (1954), THE
COURT SUSTAINED A TREBLE DAMAGE JUDGMENT IN FAVOR OF A COMPETING SELLER
WHICH WAS BASED PARTLY UPON A VIOLATION OF SEC. 2(A). 

THUS NEITHER THE LANGUAGE OF SEC. 2(A), ITS LEGISLATIVE HISTORY, NOR
ITS JUDICIAL APPLICATION COUNTENANCES A CONSTRUCTION OF THE STATUTE
WHICH DRAWS STRENGTH FROM EVEN A LINGERING DOUBT AS TO ITS PURPOSE OF
PROTECTING PRIMARY-LINE COMPETITION.  BUT THE RATIONALE OF THE COURT OF
APPEALS APPEARS TO HAVE BEEN SHAPED BY PRECISELY THIS TYPE OF DOUBT. 
THE VIEW OF THE COURT OF APPEALS WAS THAT, BEFORE THERE CAN BE A PRICE
DISCRIMINATION WITHIN THE MEANING OF SEC. 2(A), "THERE MUST BE SOME
RELATIONSHIP BETWEEN THE DIFFERENT PURCHASERS WHICH ENTITLES THEM TO
COMPARABLE TREATMENT."  265 F.2D, AT 681.  SUCH A RELATIONSHIP WOULD
EXIST, THE COURT REASONED, IF DIFFERENT PRICES WERE BEING CHARGED TO
COMPETING PURCHASERS.  BUT THE COURT OBSERVED THAT IN THIS CASE ALL
COMPETING PURCHASERS PAID RESPONDENT THE SAME PRICE, SO FAR AS THE
RECORD DISCLOSED.  CONSEQUENTLY, THE COURT CONCLUDED THAT, EVEN
ASSUMING THE PRICE CUTS "WERE DIRECTED AT (ANHEUSER-BUSCH'S) LOCAL
COMPETITORS, THEY WERE NOT DISCRIMINATORY."  (FN10)  IBID. 

THIS QUALIFICATION UPON THE APPLICABILITY OF SEC. 2(A) TO PRIMARY
LINE-COMPETITION CASES IS IN NO WAY ADUMBRATED BY THE PREVAILING LINE
OF RELEVANT DECISIONS.  IN MEAD'S FINE BREAD CO., SUPRA, IN MARYLAND
BAKING CO., SUPRA, AND IN PORTO RICAN AMERICAN TOBACCO CO., SUPRA,
VIOLATIONS OF SEC. 2(A) WERE PREDICATED UPON INJURY TO PRIMARY-LINE
COMPETITION WITHOUT RELIANCE UPON THE PRESENCE OR ABSENCE OF
COMPETITION AMONG PURCHASERS AS A RELEVANT FACTOR.  AND IN MULLER &
CO., SUPRA, WHILE THERE WAS EVIDENCE THAT THE PURCHASERS IN QUESTION
WERE COMPETING, THE COURT EXPLICITLY REJECTED THE NOTION THAT THIS WAS
A NECESSARY ELEMENT OF A VIOLATION IN A PRIMARY-LINE CASE.  142 F.2D,
AT 518.  BUT CF. BALIAN ICE CREAM CO. V. ARDEN FARMS CO., 231 F.2D
356.    MORE IMPORTANT, HOWEVER, IS THE INCOMPATIBILITY OF THE CIRCUIT
COURT'S RULE WITH THE PURPOSE OF SEC. 2(A).  THE EXISTENCE OF
COMPETITION AMONG BUYERS WHO ARE CHARGED DIFFERENT PRICES BY A SELLER
IS OBVIOUSLY IMPORTANT IN TERMS OF ADVERSE EFFECT UPON SECONDARY-LINE
COMPETITION, BUT IT WOULD BE MERELY A FORTUITOUS CIRCUMSTANCE SO FAR AS
INJURY TO PRIMARY-LINE COMPETITION IS CONCERNED.  SINCE, AS WE HAVE
INDICATED, AN INDEPENDENT AND IMPORTANT GOAL OF SEC. 2(A) IS TO EXTEND
PROTECTION TO COMPETITORS OF THE DISCRIMINATING SELLER, THE LIMITATION
OF THAT PROTECTION BY THE ALIEN FACTOR OF COMPETITION AMONG PURCHASERS
WOULD CONSTITUTE A DEBILITATING GRAFT UPON THE STATUTE. 

ALTHOUGH RESPONDENT'S STARTING POINT IS THE SAME AS THAT OF THE COURT
OF APPEALS - THAT A PRICE DISCRIMINATION IS NOT SYNONYMOUS WITH A PRICE
DIFFERENCE - ITS TEST OF PRICE DISCRIMINATION IS SOMEWHAT BROADER. 
(FN11)  RESPONDENT CONCEDES THAT A COMPETITIVE RELATIONSHIP AMONG
PURCHASERS IS NOT A PREREQUISITE OF PRICE DISCRIMINATION, BUT MAINTAINS
THAT AT LEAST THERE MUST BE "PROOF THAT THE LOWER PRICE IS BELOW COST
OR UNREASONABLY LOW FOR THE PURPOSE OR DESIGN TO ELIMINATE COMPETITION
AND THEREBY OBTAIN A MONOPOLY."  SINCE SUCH A FINDING IS LACKING HERE,
RESPONDENT ARGUES THAT IT CANNOT BE SAID THAT THERE WAS PRICE
DISCRIMINATION. 

RESPONDENT ASSERTS THAT ITS VIEW IS SUPPORTED BY LEGISLATIVE HISTORY,
COURT DECISIONS, AND REASON.   RESPONDENT RELIES HEAVILY, AS DID THE
COURT OF APPEALS, UPON A STATEMENT MADE DURING CONGRESS' CONSIDERATION
OF THE ROBINSON-PATMAN LEGISLATION BY REPRESENTATIVE UTTERBACK, A
MANAGER OF THE CONFERENCE BILL WHICH BECAME SEC. 2(A).  IN THIS RATHER
WIDELY QUOTED EXEGESIS OF THE SECTION, REPRESENTATIVE UTTERBACK
DECLARED THAT "A DISCRIMINATION IS MORE THAN A MERE DIFFERENCE," AND
EXISTS ONLY WHEN THERE IS "SOME RELATIONSHIP  ...  BETWEEN THE PARTIES
TO THE DISCRIMINATION WHICH ENTITLES THEM TO EQUAL TREATMENT."  SUCH A
RELATIONSHIP WOULD PREVAIL AMONG COMPETING PURCHASERS, ACCORDING TO THE
CONGRESSMAN, AND ALSO "WHERE  ...  THE PRICE TO ONE IS SO LOW AS TO
INVOLVE A SACRIFICE OF SOME PART OF THE SELLER'S NECESSARY COSTS AND
PROFIT," SO THAT "IT LEAVES THAT DEFICIT INEVITABLY TO BE MADE UP IN
HIGHER PRICES TO HIS OTHER CUSTOMERS."  80 CONG. REC. 9416.  (FN12)
RESPONDENT ALSO CITES EXPRESSIONS IN THE LEGISLATIVE HISTORY OF THE
CLAYTON ACT WHICH REFLECT CONGRESS' CONCERN OVER CLASSIC EXAMPLES OF
PREDATORY BUSINESS PRACTICES.  SEE H.R. REP. NO. 627, 63D CONG., 2D
SESS. 8; S. REP. NO. 698, 63D CONG., 2D SESS. 2-4.  MOREOVER,
RESPONDENT MAINTAINS THAT THE PRINCIPLE IT ADVANCES HAS FOUND
EXPRESSION IN THE DECISIONS OF THE FEDERAL COURTS IN PRIMARY-LINE
COMPETITION CASES, WHICH CONSISTENTLY EMPHASIZE THE UNREASONABLY LOW
PRICES AND THE PREDATORY INTENT OF THE DEFENDANTS.  (FN13)  RESPONDENT
ALSO URGES THAT ITS VIEW IS GROUNDED UPON THE STATUTORY SCHEME OF SEC.
2(A), WHICH PENALIZES SELLERS ONLY IF AN ANTICOMPETITIVE EFFECT STEMS
FROM A DISCRIMINATORY PRICING PATTERN, NOT IF IT RESULTS MERELY FROM A
LOW PRICE.  THUS, THE ARGUMENT GOES, UNLESS THERE IS PROOF THAT HIGH
PRICES IN ONE AREA HAVE SUBSIDIZED LOW PRICES IN ANOTHER, THE PRICE
DIFFERENTIAL DOES NOT FALL WITHIN THE COMPASS OF THE SECTION.  IN SUCH
A CASE, IT IS CONTENDED, SEC. 3 OF THE ROBINSON-PATMAN ACT, 49 STAT.
1528, 15 U.S.C. SEC. 13A, MAY BE APPLICABLE, BUT NOT SEC. 2(A).  (FN14)
FINALLY, RESPONDENT ARGUES THAT, UNLESS ITS POSITION IS ACCEPTED, THE
LAW WILL IMPOSE RIGID PRICE UNIFORMITY UPON THE BUSINESS WORLD,
CONTRARY TO SOUND ECONOMICS AND THE POLICY OF THE ANTITRUST LAWS. 

THE TROUBLE WITH RESPONDENT'S ARGUMENTS IS NOT THAT THEY ARE
NECESSARILY IRRELEVANT IN A SEC. 2(A) PROCEEDING, BUT THAT THEY ARE
MISDIRECTED WHEN THE ISSUE UNDER CONSIDERATION IS SOLELY WHETHER THERE
HAS BEEN A PRICE DISCRIMINATION.  WE ARE CONVINCED THAT, WHATEVER MAY
BE SAID WITH RESPECT TO THE REST OF SECS. 2(A) AND 2(B) - AND WE SAY
NOTHING HERE - THERE ARE NO OVERTONES OF BUSINESS BUCCANEERING IN THE
SEC. 2(A) PHRASE "DISCRIMINATE IN PRICE."  RATHER, A PRICE
DISCRIMINATION WITHIN THE MEANING OF THAT PROVISION IS MERELY A PRICE
DIFFERENCE. 

WHEN THIS COURT HAS SPOKEN OF PRICE DISCRIMINATION IN SEC. 2(A)
CASES, IT HAS GENERALLY ASSUMED THAT THE TERM WAS SYNONYMOUS WITH PRICE
DIFFERENTIATION.  IN FEDERAL TRADE COMM'N V. CEMENT INSTITUTE, 333 U.S.
683, 721, THE COURT REFERRED TO "DISCRIMINATION IN PRICE" AS "SELLING
THE SAME KIND OF GOODS CHEAPER TO ONE PURCHASER THAN TO ANOTHER."  AND
IN FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37, 45, THE COURT
SAID, "CONGRESS MEANT BY USING THE WORDS 'DISCRIMINATION IN PRICE' IN
SEC. 2 THAT IN A CASE INVOLVING COMPETITIVE INJURY BETWEEN A SELLER'S
CUSTOMERS THE COMMISSION NEED ONLY PROVE THAT A SELLER HAD CHARGED ONE
PURCHASER A HIGHER PRICE FOR LIKE GOODS THAN HE HAD CHARGED ONE OR MORE
OF THE PURCHASER'S COMPETITORS."  (FN15)  THE COMMENTATORS HAVE
GENERALLY SHARED THIS VIEW.  (FN16) 

THESE ASSUMPTIONS, WE NOW CONCLUDE, WERE FIRMLY ROOTED IN THE
STRUCTURE OF THE STATUTE, FOR IT IS ONLY BY EQUATING PRICE
DISCRIMINATION WITH PRICE DIFFERENTIATION THAT SEC. 2(A) CAN BE
ADMINISTERED AS CONGRESS INTENDED.  AS WE READ THAT PROVISION, IT
PROSCRIBES PRICE DIFFERENCES, SUBJECT TO CERTAIN DEFINED DEFENSES,
(FN17) WHERE THE EFFECT OF THE DIFFERENCES "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 THE PRICE
DIFFERENTIAL, "OR WITH CUSTOMERS OF EITHER OF THEM."  SEE FEDERAL TRADE
COMM'N V. MORTON SALT CO., 334 U.S. 37, 45-47.  IN OTHER WORDS, THE
STATUTE ITSELF SPELLS OUT THE CONDITIONS WHICH MAKE A PRICE DIFFERENCE
ILLEGAL OR LEGAL, AND WE WOULD DERANGE THIS INTEGRATED STATUTORY SCHEME
WERE WE TO READ OTHER CONDITIONS INTO THE LAW BY MEANS OF THE
NONDIRECTIVE PHRASE, "DISCRIMINATE IN PRICE."  NOT ONLY WOULD SUCH
ACTION BE CONTRARY TO WHAT WE CONCEIVE TO BE THE MEANING OF THE
STATUTE, BUT, PERHAPS BECAUSE OF THIS, IT WOULD BE THOROUGHLY
UNDESIRABLE.  AS ONE COMMENTATOR HAS SUCCINCTLY PUT IT, "INEVITABLY
EVERY LEGAL CONTROVERSY OVER ANY PRICE DIFFERENCE WOULD SHIFT FROM THE
DETAILED GOVERNING PROVISIONS - 'INJURY,' COST JUSTIFICATION, 'MEETING
COMPETITION,' ETC. - OVER INTO THE 'DISCRIMINATION' CONCEPT FOR AD HOC
RESOLUTION DIVORCED FROM SPECIFICALLY PERTINENT STATUTORY TEXT."  ROWE,
PRICE DIFFERENTIALS AND PRODUCT DIFFERENTIATION:  THE ISSUES UNDER THE
ROBINSON-PATMAN ACT, 66 YALE L.J. 1, 38.  (FN18) 

IN THE FACE OF THESE CONSIDERATIONS, WE DO NOT FIND RESPONDENT'S
ARGUMENTS PERSUASIVE.  THE FACT THAT ACTIVITY WHICH FALLS WITHIN THE
CIVIL PROSCRIPTION OF SEC. 2(A) MAY ALSO BE CRIMINAL UNDER SEC. 3 IS
ENTIRELY IRRELEVANT.  THE PARTIAL OVERLAP BETWEEN THESE SECTIONS, WHICH
WAS TO A SIGNIFICANT EXTENT THE BY-PRODUCT OF THE TORTUOUS PATH OF THE
ROBINSON-PATMAN BILLS THROUGH CONGRESS, (FN19) HAS BEEN WIDELY
RECOGNIZED.  "THIS SECTION (SEC. 3) DOES NOT RESTRICT THE OPERATION OF
THE PROHIBITIONS, WITH CIVIL SANCTIONS, OF THE ROBINSON-PATMAN
AMENDMENTS TO SEC. 2(A) OF THE CLAYTON ACT."  CORN PRODUCTS CO. V.
FEDERAL TRADE COMM'N, 324 U.S. 726, 734.  (FN20) 

THE OTHER MATERIALS ADDUCED BY RESPONDENT DO NO MORE THAN INDICATE
THAT THE FACTORS IN QUESTION - PREDATORY INTENT AND UNREASONABLY LOW
LOCAL PRICE CUTS - MAY POSSIBLY BE RELEVANT TO OTHER MATTERS WHICH MAY
BE PUT IN ISSUE IN A SEC. 2(A) PROCEEDING.  FOR EXAMPLE, IT MIGHT BE
ARGUED THAT THE EXISTENCE OF PREDATORY INTENT BEARS UPON THE LIKELIHOOD
OF INJURY TO COMPETITION, (FN21) AND THAT A PRICE REDUCTION BELOW COST
TENDS TO ESTABLISH SUCH AN INTENT.  (FN22)  PRACTICALLY ALL OF THE
LEGISLATIVE MATERIALS AND COURT DECISIONS RELIED UPON BY RESPONDENT ARE
EXPLICABLE ON THIS BASIS, SINCE HARDLY ANY OF THEM ARE CONCERNED
SPECIFICALLY WITH THE MEANING OF PRICE DISCRIMINATION.  (FN23)
MOREOVER, MANY OF THE LEGISLATIVE EXPRESSIONS CITED BY RESPONDENT MAY
MERELY BE DESCRIPTIVE OF THE PROTOTYPE OF THE EVIL WITH WHICH CONGRESS
DEALT IN SEC. 2(A), RATHER THAN DELINEATIVE OF THE OUTER REACH OF THAT
UTTERBACK.  BUT THE PRIMARY FUNCTION OF STATUTORY CONSTRUCTION IS TO
EFFECTUATE THE INTENT OF CONGRESS, AND THAT FUNCTION CANNOT PROPERLY BE
DISCHARGED BY RELIANCE UPON A STATEMENT OF A SINGLE CONGRESSMAN, IN THE
FACT OF THE WEIGHTY COUNTERVAILING CONSIDERATIONS WHICH ARE PRESENT IN
THIS CASE.  (FN24) 

NOTHING THAT WE HAVE SAID, OF COURSE, SHOULD BE CONSTRUED TO BE THE
EXPRESSION OF ANY VIEW CONCERNING THE RELEVANCE OF THE FACTORS STRESSED
BY RESPONDENT TO STATUTORY STANDARDS OTHER THAN PRICE DISCRIMINATION. 
WE WISH MERELY TO POINT OUT, ON THE ONE HAND, WHY RESPONDENT'S
ARGUMENTS IN OUR VIEW ARE NOT PERTINENT TO THE ISSUE AT BAR, AND, ON
THE OTHER, THAT WE ARE NOT FORECLOSING RESPONDENT FROM URGING IN THE
COURT OF APPEALS THAT SUCH ARGUMENTS ARE MATERIAL TO ISSUES NOT NOW
BEFORE US. 

WHAT WE HAVE SAID MAKES IT QUITE EVIDENT, WE BELIEVE, THAT OUR
DECISION DOES NOT RAISE THE SPECTER OF A FLAT PROHIBITION OF PRICE
DIFFERENTIALS, INASMUCH AS PRICE DIFFERENCES CONSTITUTE BUT ONE ELEMENT
OF A SEC. 2(A) VIOLATION.  IN FACT, AS WE HAVE INDICATED, RESPONDENT
HAS VIGOROUSLY CONTESTED THIS VERY CASE ON THE ENTIRELY SEPARATE
GROUNDS OF INSUFFICIENT INJURY TO COMPETITION AND GOOD FAITH LOWERING
OF PRICE TO MEET COMPETITION.  NOR IS IT RELEVANT THAT THE COMMISSION
DID NOT PROCEED UPON THE BASIS OF THE RESPONDENT'S PRICE DIFFERENTIALS
WHICH EXISTED PRIOR TO THE PERIOD IN QUESTION IN THIS CASE.  THIS
CHOICE IS COMMITTED TO THE DISCRETION OF THE COMMISSION; AND IT MAY
WELL BE THAT THE COMMISSION DID NOT BELIEVE THE REMAINING STATUTORY
ELEMENTS COULD BE ESTABLISHED WITH RESPECT TO OTHER DIFFERENTIALS.  OUR
INTEREST IS SOLELY WITH THIS CASE, AND AT THIS STAGE OF THE LITIGATION
THAT INTEREST IS CONFINED EXCLUSIVELY TO IDENTIFYING AND KEEPING
DISTINCT THE VARIOUS STATUTORY STANDARDS WHICH ARE PART OF THE SEC.
2(A) COMPLEX. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED. 

FN1  ANHEUSER-BUSCH RANKED SECOND NATIONALLY IN GROSS SALES IN 1952
AND 1955, AND FIRST IN 1953 AND 1954. 

FN2  IT APPEARS THAT GRIESEDIECK WESTERN SOLD OUT TO CARLING BREWING
COMPANY IN OCTOBER, 1954. 

FN3  RESPONDENT MAINTAINS - AND PETITIONER AGREES - THAT THE EVIDENCE
ESTABLISHES THAT IT DID NOT RAISE ITS PRICES IN MISSOURI OR WISCONSIN. 
IN VIEW OF OUR DISPOSITION OF THE CASE, THIS IS IMMATERIAL TO THE ISSUE
PRESENTED ON THIS REVIEW. 

POSSIBLY WE SHOULD NOTE THAT MOST OF THE FACTS IN THIS PARTICULAR
PARAGRAPH ARE TAKEN FROM THE INITIAL DECISION.  ALTHOUGH THE COMMISSION
ADOPTED "THE FINDINGS, CONCLUSIONS, AND ORDER, AS MODIFIED, CONTAINED
IN THE INITIAL DECISION," THERE IS SOME DISAGREEMENT AS TO HOW
ENCOMPASSING THIS INCORPORATION ORDER WAS.  SEE NOTE 10, INFRA.  SINCE
THAT DISPUTE CONCERNS MATTERS NOT RELEVANT TO OUR DECISION, AND SINCE
THE FACTS SET FORTH ABOVE ARE MERELY BACKGROUND AND APPEAR TO BE
UNQUESTIONED, WE FIND IT UNNECESSARY TO RESOLVE THE DISAGREEMENT. 

FN4  THE FOLLOWING TABLE DISCLOSES THE DEGREE OF THIS PRICE SPREAD: 

ST. LOUIS, MO.                        $2.93          WASHINGTON, D.C.
       $3.65 

CHICAGO, ILL.                          3.44          DETROIT, MICH.
              3.55 

CINCINNATI, OHIO                       3.75          BOSTON, MASS.
            3.69 

HOUSTON, TEX.      3.70          KANSAS CITY, MO.
3.15 

BRONX, N.Y.                            3.68          ST. PAUL, MINN.
              3.53 

KEARNEY, NEBR.              3.68          SIOUX FALLS, S. DAK. 
   3.50 

ST. JOSEPH, MO.                        3.17          DENVER, COLO.
              .... 

BUFFALO, N.Y.                    3.60          SAN FRANCISCO, CALIF.
3.79 

BALTIMORE, MD.                         3.62      LOS ANGELES, CALIF.
          3.80 

FN5  "IT IS ORDERED THAT THE RESPONDENT, ANHEUSER-BUSCH, INC., A
CORPORATION, AND ITS OFFICERS, REPRESENTATIVES, AGENTS AND EMPLOYEES,
DIRECTLY OR THROUGH ANY CORPORATE OR OTHER DEVICE, IN THE SALE OF BEER
OF LIKE GRADE AND QUALITY, DO FORTHWITH CEASE AND DESIST FROM
DISCRIMINATING, DIRECTLY OR INDIRECTLY, IN PRCE, BETWEEN DIFFERENT
PURCHASERS ENGAGED IN THE SAME LINE OF COMMERCE, WHERE EITHER, OR ANY,
OF THE PURCHASES INVOLVED IN SUCH DISCRIMINATION ARE IN COMMERCE, AS
'COMMERCE' IS DEFINED IN THE CLAYTON ACT, BY A PRICE REDUCTION IN ANY
MARKET WHERE RESPONDENT IS IN COMPETITION WITH ANY OTHER SELLER, UNLESS
IT PROPORTIONALLY REDUCES ITS PRICES EVERYWHERE FOR THE SAME QUANTITY
OF BEER." 

FN6 "SECTION 2 OF THE BILL  ...  IS EXPRESSLY DESIGNED WITH THE VIEW
OF CORRECTING AND FORBIDDING A COMMON AND WIDESPREAD UNFAIR TRADE
PRACTICE WHEREBY CERTAIN GREAT CORPORATIONS AND ALSO CERTAIN SMALLER
CONCERNS WHICH SEEK TO SECURE A MONOPOLY IN TRADE AND COMMERCE BY APING
THE METHODS OF THE GREAT CORPORATIONS, HAVE HERETOFORE ENDEAVORED TO
DESTROY COMPETITION AND RENDER UNPROFITABLE THE BUSINESS OF COMPETITORS
BY SELLING THEIR GOODS, WARES, AND MERCHANDISE AT A LESS PRICE IN THE
PARTICULAR COMMUNITIES WHERE THEIR RIVALS ARE ENGAGED IN BUSINESS THAN
AT OTHER PLACES THROUGHOUT THE COUNTRY  ...  .  IN THE PAST IT HAS BEEN
A MOST COMMON PRACTICE OF GREAT AND POWERFUL COMBINATIONS ENGAGED IN
COMMERCE - NOTABLY THE STANDARD OIL CO., AND THE AMERICAN TOBACCO CO.,
AND OTHERS OF LESS NOTORIETY, BUT OF GREAT INFLUENCE - TO LOWER PRICES
OF THEIR COMMODITIES, OFTENTIMES BELOW THE COST OF PRODUCTION IN
CERTAIN COMMUNITIES AND SECTIONS WHERE THEY HAD COMPETITION, WITH THE
INTENT TO DESTROY AND MAKE UNPROFITABLE THE BUSINESS OF THEIR
COMPETITORS, AND WITH THE ULTIMATE PURPOSE IN VIEW OF THEREBY ACQUIRING
A MONOPOLY IN THE PARTICULAR LOCALITY OR SECTION IN WHICH THE
DISCRIMINATING PRICE IS MADE  ...  ."  H.R. REP. NO. 627, 63D CONG., 2D
SESS. 8.  SEE ALSO S. REP. NO. 698, 63D CONG., 2D SESS. 2-4.    FN7
SEE H.R. REP. NO. 2287, 74TH CONG., 2D SESS.; S. REP. NO. 1502, 74TH
CONG., 2D SESS.; F.T.C., FINAL REPORT ON THE CHAIN-STORE INVESTIGATION,
S. DOC. NO. 4, 74TH CONG., 1ST SESS.; FEDERAL TRADE COMM'N V. MORTON
SALT CO., 334 U.S. 37, 43; REPORT OF THE ATTORNEY GENERAL'S NATIONAL
COMMITTEE TO STUDY THE ANTITRUST LAWS, 155-156; AUSTIN, PRICE
DISCRIMINATION AND RELATED PROBLEMS UNDER THE ROBINSON-PATMAN ACT (2D
REV. ED., 1959), 8-11; PALAMOUNTAIN, THE POLITICS OF DISTRIBUTION, 188
234; ROWE, THE EVOLUTION OF THE ROBINSON-PATMAN ACT:  A TWENTY-YEAR
PERSPECTIVE, 57 COL. L. REV. 1059. 

FN8  SEE SOURCES CITED IN NOTE 7, SUPRA. 

FN9  SEE MENNEN CO. V. FEDERAL TRADE COMM'N, 288 F. 774; NATIONAL
BISCUIT CO. V. FEDERAL TRADE COMM'N, 299 F. 733. 

FN10  THERE IS A DISPUTE AS TO WHETHER THE COMMISSION ADOPTED A
FINDING BY THE EXAMINER WHICH RELATED TO THE PURPOSE OF THE PRICE
REDUCTIONS.  SINCE WE CONCLUDE THAT THE ISSUE OF PREDATORY INTENT IS
IRRELEVANT TO THE QUESTION BEFORE US, IT IS UNNECESSARY FOR US TO
RESOLVE THIS DISPUTE. 

FN11  RESPONDENT MAINTAINS THAT THE OPINION OF THE COURT OF APPEALS
MAY AND SHOULD BE READ TO ENCOMPASS RESPONDENT'S VIEWS.  IT IS TRUE
THAT THERE ARE CERTAIN PASSAGES IN THE OPINION WHICH LEND SOME SUPPORT
TO RESPONDENT'S INTERPRETATION.  IN VIEW OF OUR DISPOSITION OF THE
CASE, IT IS UNNECESSARY FOR US EITHER TO ACCEPT OR REJECT THAT
CONSTRUCTION. 

FN12  THE STATEMENT IN FULL IS AS FOLLOWS: 

"IN ITS MEANING AS SIMPLE ENGLISH, 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.  IF THE TWO
ARE COMPETING IN THE RESALE OF THE GOODS CONCERNED, THAT RELATIONSHIP
EXISTS.  WHERE, ALSO, THE PRICE TO ONE IS SO LOW AS TO INVOLVE A
SACRIFICE OF SOME PART OF THE SELLER'S NECESSARY COSTS AND PROFIT AS
APPLIED TO THAT BUSINESS, IT LEAVES THAT DEFICIT INEVITABLY TO BE MADE
UP IN HIGHER PRICES TO HIS OTHER CUSTOMERS; AND THERE, TOO, A
RELATIONSHIP MAY EXIST UPON WHICH TO BASE THE CHARGE OF
DISCRIMINATION.  BUT WHERE NO SUCH RELATIONSHIP EXISTS, WHERE THE GOODS
ARE SOLD IN DIFFERENT MARKETS AND THE CONDITIONS AFFECTING THOSE
MARKETS SET DIFFERENT PRICE LEVELS FOR THEM, THE SALE TO DIFFERENT
CUSTOMERS AT THOSE DIFFERENT PRICES WOULD NOT CONSTITUTE A
DISCRIMINATION WITHIN THE MEANING OF THIS BILL." 

FN13  SEE, E.G., PORTO RICAN AMERICAN TOBACCO CO. V. AMERICAN TOBACCO
CO., SUPRA; ATLAS BUILDING PRODUCTS CO. V. DIAMOND BLOCK & GRAVEL CO.,
SUPRA; MARYLAND BAKING CO. V. FEDERAL TRADE COMM'N, SUPRA. 

FN14  SECTION 3 PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, TO BE A PARTY TO, OR ASSIST IN, ANY
TRANSACTION OF SALE, OR CONTRACT TO SELL, WHICH DISCRIMINATES TO HIS
KNOWLEDGE AGAINST COMPETITORS OF THE PURCHASER, IN THAT, ANY DISCOUNT,
REBATE, ALLOWANCE, OR ADVERTISING SERVICE CHARGE IS GRANTED TO THE
PURCHASER OVER AND ABOVE ANY DISCOUNT, REBATE, ALLOWANCE, OR
ADVERTISING SERVICE CHARGE AVAILABLE AT THE TIME OF SUCH TRANSACTION TO
SAID COMPETITORS IN RESPECT OF A SALE OF GOODS OF LIKE GRADE, QUALITY,
AND QUANTITY; TO SELL, OR CONTRACT TO SELL, GOODS IN ANY PART OF THE
UNITED STATES AT PRICES LOWER THAN THOSE EXACTED BY SAID PERSON
ELSEWHERE IN THE UNITED STATES FOR THE PURPOSE OF DESTROYING
COMPETITION, OR ELIMINATING A COMPETITOR IN SUCH PART OF THE UNITED
STATES; OR, TO SELL, OR CONTRACT TO SELL, GOODS AT UNREASONABLY LOW
PRICES FOR THE PURPOSE OF DESTROYING COMPETITION OR ELIMINATING A
COMPETITOR." 

FN15  SEE ALSO FEDERAL TRADE COMM'N V. STALEY CO., 324 U.S. 746, 757;
SAMUEL H. MOSS, INC., V. FEDERAL TRADE COMM'N, 148 F.2D 378, 379, 155
F.2D 1016.  COMPARE AUTOMATIC CANTEEN CO. V. FEDERAL TRADE COMM'N,
SUPRA, AT 70 N. 10, 71. 

FN16  SEE ATT'Y GEN. NAT'L COMM. ANTITRUST REP. 156; AUSTIN, PRICE
DISCRIMINATION AND RELATED PROBLEMS UNDER THE ROBINSON-PATMAN ACT (2D
REV. ED. 1959), 18-20; MCALLISTER, PRICE CONTROL BY LAW IN THE UNITED
STATES:  A SURVEY, 4 LAW AND CONTEMP.  PROB.  273, 291-293; ROWE, PRICE
DIFFERENTIALS AND PRODUCT DIFFERENTIATION:  THE ISSUES UNDER THE
ROBINSON-PATMAN ACT, 66 YALE L.J. 1, 36-38; COMMENT, 12 STAN.  L. REV.
460, 461.  BUT SEE ZORN AND FELDMAN, BUSINESS UNDER THE NEW PRICE LAWS,
75. 

FN17  IN ADDITION TO THE STATUTORY PROVISIONS REGARDING INJURY TO
COMPETITION, SET OUT AT P. 537, SUPRA, THERE ARE OTHER RELEVANT
PORTIONS OF THE STATUTE, SUCH AS THE SELLER'S SEC. 2(B) DEFENSE OF
"SHOWING THAT HIS LOWER PRICE  ...  WAS MADE IN GOOD FAITH TO MEET AN
EQUALLY LOW PRICE OF A COMPETITOR  ...  ."  AND A PROVISO TO SEC. 2(A)
STATES: 

"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  ...  ." 

AND STILL ANOTHER PROVISO TO SEC. 2(A) STATES: 

"THAT NOTHING HEREIN CONTAINED SHALL PREVENT PRICE CHANGES FROM TIME
TO TIME WHERE IN RESPONSE TO CHANGING CONDITIONS AFFECTING THE MARKET
FOR OR THE MARKETABILITY OF THE GOODS CONCERNED, SUCH AS BUT NOT
LIMITED TO ACTUAL OR IMMINENT DETERIORATION OF PERISHABLE GOODS,
OBSOLESCENCE OF SEASONAL GOODS, DISTRESS SALES UNDER COURT PROCESS, OR
SALES IN GOOD FAITH IN DISCONTINUANCE OF BUSINESS IN THE GOODS
CONCERNED." 

FN18  SEE ALSO AUSTIN, PRICE DISCRIMINATION AND RELATED PROBLEMS
UNDER THE ROBINSON-PATMAN ACT (2D REV. ED. 1959), 18-20; MCALLISTER,
PRICE CONTROL BY LAW IN THE UNITED STATES:  A SURVEY, 4 LAW AND
CONTEMP.  PROB.  273, 291-293. 

FN19  SEE PALAMOUNTAIN, THE POLITICS OF DISTRIBUTION, 188-234; ROWE,
THE EVOLUTION OF THE ROBINSON-PATMAN ACT:  A TWENTY-YEAR PERSPECTIVE,
57 COL. L. REV. 1059. 

FN20  "SUBSECTION (H) OF THE SENATE AMENDMENT  ...  APPEARS IN THE
CONFERENCE REPORT AS SECTION 3 OF THE BILL ITSELF.  IT CONTAINS THE
OPERATIVE AND PENAL PROVISIONS OF WHAT WAS ORIGINALLY THE BORAH-VAN
NUYS BILL (S. 4171).  WHILE THEY OVERLAP IN SOME RESPECTS, THEY ARE IN
NO WAY INCONSISTENT WITH THE PROVISIONS OF THE CLAYTON ACT AMENDMENT
PROVIDED FOR IN SECTION 1.  SECTION 3 AUTHORIZES NOTHING WHICH THAT
AMENDMENT PROHIBITS, AND TAKES NOTHING FROM IT.  ON THE CONTRARY, WHERE
ONLY CIVIL REMEDIES AND LIABILITIES ATTACH TO VIOLATIONS OF THE
AMENDMENT PROVIDED IN SECTION 1, SECTION 3 SETS UP SPECIAL PROHIBITIONS
AS TO THE PARTICULAR OFFENSES THEREIN DESCRIBED AND ATTACHES TO THEM
ALSO THE CRIMINAL PENALTIES THEREIN PROVIDED."  H.R.  REP. NO. 2951,
74TH CONG., 2D SESS. 8.  SEE ALSO NASHVILLE MILK CO. V. CARNATION CO.,
355 U.S. 373, 378; AUSTIN, PRICE DISCRIMINATION AND RELATED PROBLEMS
UNDER THE ROBINSON-PATMAN ACT (2D REV. ED. 1959), 3-4; 108 U. OF PA. L.
REV. 116, 121; 45 VA. L. REV. 1397, 1400; SOURCES CITED IN NOTE 19,
SUPRA. 

FN21  OF COURSE WE DO NOT DEPART FROM OUR HOLDING IN FEDERAL TRADE
COMM'N V. MORTON SALT, SUPRA, AT PP. 50-51, AS TO ADEQUACY OF PROOF OF
TENDENCY TO INJURE COMPETITION IN CASES INVOLVING DISCRIMINATION
BETWEEN PURCHASERS.  THE INSTANT CASE, AS WE HAVE POINTED OUT, INVOLVES
DIFFERENCES IN PRICES AMONG COMPETING SELLERS. 

FN22  SEE BALIAN ICE CREAM CO. V. ARDEN FARMS CO., SUPRA, AT 369;
REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE
ANTITRUST LAWS, 165; ROWE, PRICE DISCRIMINATION, COMPETITION, AND
CONFUSION:  ANOTHER LOOK AT ROBINSON-PATMAN, 60 YALE L.J. 929, 956; THE
"NEW" FEDERAL TRADE COMMISSION AND THE ENFORCEMENT OF THE ANTITRUST
LAWS, 65 YALE L.J. 34, 74-75; A SYMPOSIUM ON THE ROBINSON-PATMAN ACT,
49 N.W.U.L. REV. 197, 215, 224.  BUT CF. NASHVILLE MILK CO. V.
CARNATION CO., 355 U.S. 373, 378; FEDERAL TRADE COMM'N V. RUBEROID CO.,
343 U.S. 470, 484 (DISSENTING OPINION). 

FN23  PERHAPS IT IS WORTH NOTING IN THIS CONNECTION THAT THE SENATE
AND HOUSE COMMITTEE REPORTS APPEAR TO USE THE WORDS "DISCRIMINATION"
AND "DIFFERENTIAL" INTERCHANGEABLY.  SEE H.R. REP. NO. 2287, 74TH
CONG., 2D SESS. 10; S. REP. NO. 1502, 74TH CONG., 2D SESS. 5. 

FN24  REPRESENTATIVE UTTERBACK'S COMMENT HAS BEEN CRITICIZED AS
"AMBIGUOUS AND MISLEADING AND  ...  TOO OFTEN ACCEPTED WITHOUT
ANALYSIS."  AUSTIN, PRICE DISCRIMINATION AND RELATED PROBLEMS UNDER THE
ROBINSON-PATMAN ACT (2D REV. ED. 1959), 18.  IT IS, OF COURSE, POSSIBLE
THAT THE CONGRESSMAN WAS SO INTENT UPON THE IMMEDIATE PROBLEM -
PROTECTION OF SECONDARY-LINE COMPETITION - THAT HE DID NOT REFLECT UPON
THE SIGNIFICANCE OF HIS STATEMENT WHEN APPLIED TO PRIMARY-LINE CASES. 
..END :








METLAKATLA INDIAN COMMUNITY, ANNETTE ISLAND RESERVE V. EGAN 363 U.S.
555 


NO. 326.  ARGUED MAY 18, 1960.  - DECIDED JUNE 20, 1960.* - 18 ALASKA -
, 174 F. SUPP. 500, DECISION RESERVED AND APPEALS HELD ON DOCKET
PENDING CONSIDERATION BY THE SUPREME COURT OF ALASKA. 

*TOGETHER WITH NO. 327, ORGANIZED VILLAGE OF KAKE ET AL. V. EGAN,
GOVERNOR OF ALASKA, ALSO ON APPEAL FROM THE SAME COURT. 


AFTER ALASKA ACHIEVED STATEHOOD, THESE SUITS TO ENJOIN ENFORCEMENT OF
A STATUTE OF THE STATE ON THE GROUND THAT IT CONFLICTED WITH APPLICABLE
FEDERAL LAW WERE INSTITUTED IN THE DISTRICT COURT FOR ALASKA, WHICH, BY
THE CONSTITUTION OF THE NEW STATE, AND BY STATE AND FEDERAL STATUTES,
WAS DESIGNATED THE SUCCESSOR OF THE FORMER TERRITORIAL DISTRICT COURT
IN THE INTERIM UNTIL THE ORGANIZATION OF THE NEW STATE COURTS AND THE
FEDERAL DISTRICT COURT FOR THE DISTRICT OF ALASKA.  THE DISTRICT COURT
FOR ALASKA HELD THE STATUTE CONSTITUTIONAL AND ENTERED ORDERS DENYING
THE INJUNCTIONS AND DISMISSING THE COMPLAINTS.  NOTICES OF DIRECT
APPEALS TO THIS COURT WERE FILED AFTER THE JUSTICES OF THE NEW ALASKA
SUPREME COURT HAD BEEN DESIGNATED BUT BEFORE THAT COURT WAS IN ACTUAL
OPERATION.  HELD: 

1.  THE DISTRICT COURT FOR ALASKA WAS THE "HIGHEST COURT OF A STATE
IN WHICH A DECISION COULD BE HAD," AND THE APPEALS ARE WITHIN THE
JURISDICTION OF THIS COURT UNDER 28 U.S.C. SEC. 1257(2).  PP. 557-560. 

2. SINCE THE QUESTION OF THE CONSTITUTIONALITY OF THE ALASKA STATUTE
RAISES THE ISSUE OF ITS JUSTIFICATION UNDER THE SO-CALLED POLICE POWER
AND IS ENTANGLED WITH QUESTIONS OF STATE LAW WHICH THE SUPREME COURT OF
ALASKA MIGHT CONSTRUE SO AS TO AVOID CONFLICT WITH FEDERAL LAW, THIS
COURT REFRAINS AT THIS STAGE FROM DECIDING THE ISSUES PRESENTED ON THE
MERITS OF THESE APPEALS SO AS TO AFFORD THE SUPREME COURT OF ALASKA AN
OPPORTUNITY TO RULE ON THE QUESTIONS PRESENTED.  PP. 561-562. 

3.  THE CASES RETAINED ON THE DOCKET OF THIS COURT PENDING FURTHER
PROCEEDINGS OR A FURTHER APPEAL AFTER THE DECISION OF THE SUPREME COURT
OF ALASKA, AND THE STAYS GRANTED ARE CONTINUED UNTIL FINAL DISPOSITION
OF THE CASES.  PP. 562-563. 

METLAKATLA INDIAN COMMUNITY, ANNETTE ISLAND RESERVE, V. EGAN, GOVERNOR
OF ALASKA, ET AL. 

APPEAL FROM THE DISTRICT COURT FOR ALASKA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE CONSOLIDATED CASES WERE COMMENCED ON JUNE 22 AND 24, 1959, IN
THE INTERIM DISTRICT COURT FOR ALASKA, BY COMPLAINTS SEEKING PERMANENT
INJUNCTIONS AGAINST THREATENED ENFORCEMENT BY THE NEW STATE OF ALASKA,
ITS GOVERNOR, AND OTHER AGENTS, OF AN ALASKA STATUTE (ALASKA LAWS 1959,
C. 17, AS AMENDED, ALASKA LAWS 1959, C. 95) MAKING IT A CRIMINAL
OFFENSE TO FISH WITH TRAPS.  THE STATUTE WAS ASSAILED ON THE GROUND
THAT IT WAS IN CONFLICT WITH APPLICABLE FEDERAL LAW.  ON JULY 2, 1959,
ORDERS WERE ENTERED DENYING THE INJUNCTIONS, DISMISSING THE COMPLAINTS
WITH PREJUDICE, AND DENYING AN INJUNCTION PENDING APPEAL TO THIS
COURT.  18 ALASKA - , 174 F. SUPP. 500.  ON JULY 11, 1959, MR. JUSTICE
BRENNAN, ACTING IN HIS CAPACITY AS A CIRCUIT JUSTICE, GRANTED
APPELLANTS' APPLICATION FOR AN INJUNCTION PENDING FINAL DISPOSITION OF
THEIR FUTURE APPEALS TO THIS COURT.  HIS OPINION NOTED THE EXISTENCE OF
SUBSTANTIAL QUESTIONS, BOTH AS TO OUR JURISDICTION AND THE MERITS.  80
S. CT. 33.  THE NOTICES OF APPEAL WERE FILED ON AUGUST 6, 1959; ON
DECEMBER 7, 1959, WE POSTPONED FURTHER CONSIDERATION OF THE QUESTION OF
JURISDICTION TO THE HEARING OF THE CASES ON THE MERITS.  361 U.S. 911. 

IF THE ORDERS RENDERED ON JULY 2, 1959, WERE THOSE OF THE "HIGHEST
COURT OF A STATE IN WHICH A DECISION WOULD BE HAD," THE APPEALS ARE
WITHIN OUR JURISDICTION UNDER 28 U.S.C. SEC. 1257(2), SINCE THE COURT
BELOW SUSTAINED A STATUTE OF THE STATE OF ALASKA AGAINST A CLAIM OF
UNCONSTITUTIONALITY UNDER THE UNITED STATES CONSTITUTION.  THE
JURISDICTIONAL PROBLEM ARISES OUT OF THE ENACTMENTS GOVERNING ALASKA'S
ACCESSION TO STATEHOOD, SPECIFICALLY, IN RELATION TO THE CONSTITUTION
OF THE NEW STATE AND TO THE STATE AND FEDERAL LAWS GOVERNING THE
TERMINATION OF THE FORMER TERRITORIAL COURTS AND THEIR DISPLACEMENT BY
A NEW STATE JUDICIAL SYSTEM AND A FEDERAL DISTRICT COURT FOR THE
DISTRICT OF ALASKA.  THE STATE CONSTITUTION, WHICH TOOK EFFECT
"IMMEDIATELY UPON THE ADMISSION OF ALASKA INTO THE UNION AS A STATE"
(ART. XV, SEC. 25) ON JANUARY 3, 1959, PROVIDED FOR A SUPREME COURT, TO
"BE THE HIGHEST COURT OF THE STATE, WITH FINAL APPELLATE JURISDICTION,"
A SUPERIOR COURT, AND SUCH OTHER COURTS AS THE LEGISLATURE MAY
PROVIDE.  ART. IV, SECS. 1,2.  ARTICLE XV, SEC. 17, PROVIDES THAT IN
THE TRANSITIONAL PERIOD UNTIL THE NEW COURTS ARE ORGANIZED, "THE
JUDICIAL SYSTEM SHALL REMAIN AS CONSTITUTED ON THE DATE OF ADMISSION
...  "  AND THAT "WHEN THE STATE COURTS ARE ORGANIZED, NEW ACTIONS
SHALL BE COMMENCED AND FILED THEREIN, AND ALL CAUSES, OTHER THAN THOSE
UNDER THE JURISDICTION OF THE UNITED STATES, PENDING IN THE COURTS
EXISTING ON THE DATE OF ADMISSION, SHALL BE TRANSFERRED TO THE PROPER
STATE COURT AS THOUGH COMMENCED, FILED, OR LODGED IN THOSE COURTS IN
THE FIRST INSTANCE, EXCEPT AS OTHERWISE PROVIDED BY LAW." 

THE ALASKA STATEHOOD ACT, 72 STAT. 339, WHICH ALSO BECAME FULLY
EFFECTIVE ON JANUARY 3, 1959, IN SECS. 13-17, MAKES SIMILAR PROVISION
FOR THE EVENTUAL DISPOSITION OF BUSINESS PENDING IN THE TERRITORIAL
DISTRICT COURT UPON THE ORGANIZATION OF THE NEW DISTRICT COURT FOR THE
DISTRICT OF ALASKA.  HOWEVER, IT TOO PROVIDES, IN SEC. 18, THAT "THE
UNITED STATES DISTRICT COURT FOR THE TERRITORY OF ALASKA SHALL CONTINUE
TO FUNCTION AS HERETOFORE" FOR THREE YEARS, OR UNTIL THE PRESIDENT
PROCLAIMS THAT THE NEW DISTRICT COURT "IS PREPARED TO ASSUME THE
FUNCTIONS IMPOSED UPON IT."  IN JUNE, 1959, WHEN THESE ACTIONS WERE
COMMENCED, AND ON JULY 2, 1959, WHEN DECISION BELOW WAS RENDERED,
NEITHER NEW FEDERAL NOR STATE COURTS WERE IN OPERATION. 

THE FIRST QUESTION PRESENTED IS WHETHER THE INTERIM ALASKAN DISTRICT
COURT WAS THE "COURT OF A STATE" IN DECIDING THESE CASES.  SECTIONS 12
TO 18 OF THE STATEHOOD ACT, 72 STAT. 339, MAKE IT PLAIN THAT THE
INTERIM COURT WAS NOT INTENDED TO BE THE NEWLY CREATED UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ALASKA, 28 U.S.C. SEC. 81A;
OTHERWISE THE NATURE OF THE COURT, WHETHER STATE OR FEDERAL, IS NOT
EXPLICITLY SET FORTH.  IT IS APPARENT, HOWEVER, THAT THE COURT IS TO A
SIGNIFICANT DEGREE THE CREATURE OF TWO SOVEREIGNS ACTING COOPERATIVELY
TO ACCOMPLISH THE JOINT PURPOSE OF AVOIDING AN INTERREGNUM IN JUDICIAL
ADMINISTRATION IN THE TRANSITIONAL PERIOD.  THE TERMINATION OF THE
EXISTENCE OF THE INTERIM COURT IS GOVERNED BY FEDERAL LAW, STATEHOOD
ACT SEC. 18; BUT THE TERMINATION OF ITS GENERAL JURISDICTION OVER STATE
LAW MATTERS, INSOFAR AS IT IS DEPENDENT ON STATE CONSENT, IS GOVERNED
BY STATE LAW, ALASKA LAWS 1959, C. 50, SEC. 31(2), WHICH ALSO PROVIDES
FOR THE ACCELERATED ORGANIZATION OF SEPARATE ALASKA COURTS SHOULD THE
INTERIM COURT BE TERMINATED BEFORE THEY ARE READY.   ALASKA LAWS 1959,
C. 50, SEC. 32(4), AMENDED BY ALASKA LAWS 1959, C. 151, SEC. 1. 

TO DETERMINE OUR JURISDICTION WE NEED NOT ENGAGE IN ABSTRACT
SPECULATION AS TO THE FUNCTION OF THE INTERIM COURT IN CASES NOT BEFORE
US.  WHETHER THE COURT CAN SERVE AS A FEDERAL COURT, AND THE
PERMISSIBLE SCOPE OF ITS POWERS IF IT MAY SO SERVE, CF. NATIONAL MUTUAL
INS. CO. V. TIDEWATER TRANSFER CO., 337 U.S. 582; BENNER V. PORTER, 9
HOW.  235, ARE PERPLEXING QUESTIONS, DECISION OF WHICH SHOULD NOT BE
AVOIDABLY MADE.  IT IS APPARENT THAT THE LEGISLATURE OF ALASKA VESTED
THE JUDICIAL POWER OF THE STATE IN THE INTERIM DISTRICT COURT FOR THE
TIME BEING, THAT THE DISTRICT JUDGE IN THIS CASE EXPLICITLY DEEMED
HIMSELF TO BE EXERCISING SUCH POWER, AND THAT, IN LIGHT OF THE EXPRESS
CONSENT OF THE UNITED STATES, HE PROPERLY DID SO.  BENNER V. PORTER,
SUPRA.  IT FOLLOWS THAT THE DISTRICT COURT SAT AS A "COURT OF A STATE"
TO DECIDE THESE CASES. 

THE QUESTION REMAINS WHETHER THE INTERIM COURT WAS ALSO THE "HIGHEST
COURT" OF ALASKA WITHIN THE MEANING OF 28 U.S.C. SEC. 1257.  AT THE
TIME OF THE FILING OF THE NOTICE OF THIS APPEAL ON AUGUST 6, 1959, THE
LATEST TIME AT WHICH JURISDICTION COULD PROPERLY BE DETERMINED, NO NEW
ALASKA STATE COURT WAS IN ACTUAL OPERATION, ALTHOUGH ON JULY 29 THE
JUSTICES OF THE COURT WERE DESIGNATED BY THE GOVERNOR.  THE CONTENTION
THAT THE INTERIM COURT WAS NOT THE HIGHEST COURT OF ALASKA AT THAT TIME
RESTS UPON THIS LATTER FACT, AND THE TERMS OF ALASKA LAWS 1959, C. 151,
SEC. 1, AMENDING ALASKA LAWS 1959, C. 50, SEC. 32, WHICH AMENDMENT
PROVIDES THAT IN THE EVENT THAT "A COURT OF COMPETENT JURISDICTION, BY
FINAL JUDGMENT, DECLARES THAT THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT LACKS JURISDICTION TO HEAR APPEALS FROM THE DISTRICT
COURT OF THE DISTRICT OF ALASKA, THE JUDICIAL COUNCIL SHALL FORTHWITH
MEET AND SUBMIT TO THE GOVERNOR THE NAMES OF THE PERSONS NOMINATED AS
JUSTICES OF THE SUPREME COURT AND APPEALS FROM THE DISTRICT COURT OF
THE DISTRICT OF ALASKA MAY BE MADE TO THE STATE SUPREME COURT." 

BECAUSE THE NINTH CIRCUIT HAD RULED AGAINST ITS APPELLATE
JURISDICTION OVER THE INTERIM COURT ON JUNE 16, 1959, SIX DAYS BEFORE
THIS ACTION WAS COMMENCED, PARKER V. MCCARREY, 268 F.2D 907, IT IS
URGED THAT THIS PROVISION, PRESERVING APPEALS FROM THE DISTRICT COURT
TO THE SUPREME COURT OF THE STATE UNTIL THE CREATION OF THAT COURT,
REQUIRES THE CONCLUSION THAT AT LEAST AFTER JULY 29, WHEN THE JUSTICES
WERE APPOINTED, APPELLATE REVIEW WAS SUFFICIENTLY GUARANTEED TO MAKE
THE SUPREME COURT, AND NOT THE DISTRICT COURT, THE HIGHEST COURT OF
ALASKA IN WHICH A DECISION IN THE INSTANT CASE COULD BE RENDERED. 

THE QUESTION THUS RAISED IS NOT FREE FROM DOUBT.  VIEWING THE CASES
AS OF AUGUST 6, WHEN THE NOTICES OF APPEAL WERE FILED, IT IS FAIRLY
ARGUABLE THAT THE PRESERVATION EFFECTED BY ALASKA LAWS 1959, C. 151,
SEC. 1, OF THE RIGHT TO APPEAL TO THE SUPREME COURT OF ALASKA
CONSTITUTED THE INTERIM COURT AS A LOWER COURT OF ALASKA WITHIN THE
INTENT OF 28 U.S.C. SEC. 1257 TO AWAIT THE COMPLETION OF THE STATE'S
ADJUDICATORY PROCESS AS A PREREQUISITE TO ADJUDICATION HERE.  YET, WERE
THE PROMISE OF AN APPEAL, HOWEVER INDEFINITELY POSTPONED, TO BE TAKEN
AS SUFFICIENT TO BAR OUR JURISDICTION UNDER SEC. 1257, ITS EQUALLY
OBVIOUS PURPOSE TO ALLOW SUBSTANTIAL CONSTITUTIONAL QUESTIONS TO BE
TIMELY BROUGHT HERE AS OF RIGHT WOULD BE FRUSTRATED.  ALTHOUGH THESE
CASES WERE DECIDED BELOW ON JULY 2, 1959, THE DATE SET BY ALASKA
STATUTE FOR FULL ORGANIZATION OF THE STATE COURTS WAS NOT UNTIL JANUARY
3, 1962, ALASKA LAWS 1959, C. 50, SECS. 31 AND 32(4).  IF NO OTHER FACT
WERE PRESENT, A POTENTIAL DELAY OF TWO AND ONE-HALF YEARS BEFORE THE
ORGANIZATION OF A COURT TO HEAR THE PRESERVED APPEAL WOULD IN ITSELF
COUNSEL A CONSTRUCTION AGAINST DENIAL OF OUR JURISDICTION.  HERE,
HOWEVER, TWO ADDITIONAL FACTS MUST BE WEIGHED:  (1) THE JUSTICES OF THE
SUPREME COURT WERE ACTUALLY APPOINTED ON JULY 29, IN PURSUANCE OF A
DIRECTION TO ACCELERATE THE ORGANIZATION OF THE COURT; AND (2) THE
EFFECTIVE PROMULGATION OF THE RULES OF THE COURT (ACCOMPLISHED ON
OCTOBER 5, 1959) AND APPOINTMENT OF A CLERK WERE IN THEIR HANDS. 
ALASKA LAWS 1959, C. 50, SEC. 32(3).  WHILE IN LIGHT OF THESE FACTS THE
QUESTION IS EXCEEDINGLY NICE, WE DO NOT THINK THAT THE ASSURANCE OF A
TIMELY APPEAL TO A COURT NOT YET FUNCTIONING WAS SUFFICIENTLY DEFINITE
WHEN THE APPEALS WERE HERE FILED TO CONSTITUTE A BAR TO OUR
JURISDICTION UNDER SEC. 1257(2). 

THE INTERIM COURT SUSTAINED THE VALIDITY OF THE ALASKA STATUTE
BANNING FISHING WITH TRAPS, ALASKA LAWS 1959, C. 17, AS AMENDED BY
ALASKA LAWS 1959, C. 95, AGAINST THE CLAIM OF OVERRIDING FEDERAL LAW
UNDER THE SUPREMACY CLAUSE.  THE CLAIM WAS BASED ON AN ASSERTED
CONFLICT BETWEEN THE STATUTE AND REGULATIONS OF THE SECRETARY OF THE
INTERIOR, 24 FED. REG. 2053-71, PROHIBITING TRAP FISHING IN ALASKAN
WATERS GENERALLY, BUT EXCEPTING THE APPELLANTS, THEREBY GRANTING THEM
IN EFFECT A LICENSE TO FISH WITH TRAPS.  THE AUTHORITY UNDER WHICH THE
SECRETARY PURPORTED TO ACT IS THE ACT OF 1924, 43 STAT. 464, AS
AMENDED, 48 U.S.C. SECS. 221, 222. 

A QUESTION NOT FREE FROM DOUBT, TO PUT IT AT ITS LOWEST, THUS RAISED
UNDER THE SUPREMACY CLAUSE, IS HOWEVER ENTANGLED WITH QUESTIONS OF
CONSTRUCTION OF ALASKAN STATE STATUTES AS WELL AS OF THE ALASKA
STATEHOOD ACT, SUPRA.  ALSO IN ISSUE IS THE EFFECT OF PROVISIONS OF A
COMPACT BETWEEN ALASKA AND THE UNITED STATES WHICH, IT IS URGED,
RESERVED EXCLUSIVE REGULATORY POWERS OVER INDIAN FISHING RIGHTS TO THE
UNITED STATES, 72 STAT. 339, AND WHICH, SO CONSTRUED, IS ASSERTEDLY
UNCONSTITUTIONAL BECAUSE OF ITS FAILURE TO ACCORD TO ALASKA
PARTICIPATION IN THE UNION ON AN "EQUAL FOOTING" WITH THE OTHER
STATES.  THE LATTER CONTENTION RAISES RELATED QUESTIONS OF FEDERAL
POWER UNDER THE COMMERCE CLAUSE, ART. 1, SEC. 8.  WHILE WE HAVE BEFORE
US QUESTIONS OF FEDERAL LAW THAT ARE THE CONCERN OF THIS COURT, THEIR
CONSIDERATION IMPLICATES ANTECEDENT QUESTIONS OF LOCAL LAW TURNING IN
PART ON APPRECIATION OF LOCAL ECONOMIC AND SOCIAL CONSIDERATIONS
PERTINENT TO THE SCOPE OF THE SO-CALLED POLICE POWER RESERVED TO THE
STATE, UPON WHICH IT WOULD BE PATENTLY DESIRABLE TO HAVE THE
ENLIGHTENMENT WHICH THE NOW FULLY FORMED ALASKA SUPREME COURT
PRESUMABLY COULD FURNISH. 

THE ORIGINAL ACT PROHIBITING TRAPS WAS AMENDED BY ALASKA LAWS 1959,
C. 95, SEC. 1, SO AS TO PROVIDE THAT IT SHOULD NOT BE CONSTRUED
INCONSISTENTLY WITH THE COMPACT, AND IF THE ALASKA COURT DETERMINES AS
A MATTER OF STATUTORY CONSTRUCTION THAT THE COMPACT WAS DESIGNED TO
LEAVE WITH THE UNITED STATES, AS TO INDIAN FISHING, THE POWER IT
EXERCISES UNDER THE WHITE ACT, A CONSTITUTIONAL QUESTION NOW APPEARING
ON THE HORIZON MIGHT DISAPPEAR.  MOREOVER, SINCE QUESTIONS ARE RAISED
REGARDING THE STATUS OF THESE TWO INDIAN COMMUNITIES IN RELATION TO THE
AUTHORITY OF THE SECRETARY OF THE INTERIOR, ENLIGHTENMENT DRAWN ON THE
SPOT BY THE ALASKA SUPREME COURT MAY BE MATERIAL TO ANY ULTIMATE
DETERMINATION OF FEDERAL QUESTIONS BY THIS COURT.  FINALLY, SINCE THE
ULTIMATE CHALLENGE TO THIS LEGISLATION IS THAT IT MUST YIELD TO
SUPERIOR FEDERAL AUTHORITY, AN AUTHORITATIVE PRONOUNCEMENT BY THE
SUPREME COURT OF ALASKA WITH REGARD TO THE JUSTIFICATIONS OF THIS
LEGISLATION UNDER THE SO-CALLED POLICE POWER WOULD HAVE IMPORTANT
BEARING ON THE QUESTION OF THE SCOPE OF THE POWERS RESERVED TO THE
STATE. 

ACCORDINGLY, CONSISTENTLY WITH THE POLICIES EMBODIED IN SEC. 1257, AND
IN VIEW OF THE PECULIAR FACTS OF THESE CASES, WE REFRAIN AT THIS STAGE
FROM DECIDING THE ISSUES PRESENTED ON THE MERITS OF THESE APPEALS SO AS
TO AFFORD THE ALASKA SUPREME COURT THE OPPORTUNITY TO RULE ON QUESTIONS
OPEN TO IT FOR DECISION.  WE ASSUME THAT THAT COURT HAS JURISDICTION IN
THESE CASES.  HOWEVER, SINCE IT ALONE CAN AUTHORITATIVELY DECIDE SUCH A
QUESTION, WE SHALL HOLD THE CASES ON OUR DOCKET.  AFTER THE ALASKA
SUPREME COURT'S DECISION, THERE MAY BE FURTHER PROCEEDINGS ON THESE
APPEALS; AND IF IT ASSUMES JURISDICTION, FURTHER APPEALS MAY BE TAKEN
FROM ITS JUDGMENTS.  CF. LASSITER V. NORTHAMPTON COUNTY BOARD OF
ELECTIONS, 360 U.S. 45. 

BECAUSE OF THE NATURE OF THE ASSERTED CLAIM OF FEDERAL RIGHT AND THE
IRREPARABLE NATURE OF THE INJURY WHICH MAY FLOW FROM THE ENFORCEMENT OF
THESE ALASKA CRIMINAL STATUTES PRIOR TO A FINAL DETERMINATION OF THE
MERITS, WE CONTINUE THE STAYS GRANTED BY MR. JUSTICE BRENNAN ON JULY
11, 1959, UNTIL THE FINAL DISPOSITION OF THE CASES.    HAVING BEEN
ADVISED THAT APPEALS IN THESE CASES ARE PENDING IN THE ALASKA SUPREME
COURT, WE DIRECT APPELLANTS TO PURSUE THOSE APPEALS FOR DISPOSITION NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT
FROM REMITTING THE PARTIES TO THE ALASKA SUPREME COURT, AS THEY ARE OF
THE VIEW THAT THE CONTROLLING QUESTIONS ARE FEDERAL ONES WHOSE
RESOLUTION IS FOR THIS COURT. 
..END :









UNITED STEELWORKERS OF AMERICA V. AMERICAN MANUFACTURING CO. 363 U.S.
564 


NO. 360.  ARGUED APRIL 27, 1960.  - DECIDED JUNE 20, 1960.  - 264 F.2D
624, REVERSED. 


IN A SUIT UNDER SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT,
1947, TO COMPEL ARBITRATION OF A DISPUTE PURSUANT TO A COLLECTIVE
BARGAINING AGREEMENT PROVIDING FOR ARBITRATION OF ALL DISPUTES BETWEEN
THE PARTIES "AS TO THE MEANING, INTERPRETATION AND APPLICATION OF THE
PROVISIONS OF THIS AGREEMENT," THE FUNCTION OF THE COURT IS CONFINED TO
ASCERTAINING WHETHER THE PARTY SEEKING ARBITRATION IS MAKING A CLAIM
WHICH ON ITS FACE IS GOVERNED BY THE CONTRACT, AND THE COURT HAS NO
BUSINESS WEIGHING THE MERITS OF THE GRIEVANCE, CONSIDERING WHETHER
THERE IS EQUITY IN A PARTICULAR CLAIM, OR DETERMINING WHETHER THERE IS
PARTICULAR LANGUAGE IN THE WRITTEN INSTRUMENT WHICH WILL SUPPORT THE
CLAIM.  PP. 564-569. 

UNITED STEELWORKERS OF AMERICA V. AMERICAN MANUFACTURING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BRENNAN. 

THIS SUIT WAS BROUGHT BY PETITIONER UNION IN THE DISTRICT COURT TO
COMPEL ARBITRATION OF A "GRIEVANCE" THAT PETITIONER, ACTING FOR ONE
SPARKS, A UNION MEMBER, HAD FILED WITH THE RESPONDENT, SPARKS'
EMPLOYER.  THE EMPLOYER DEFENDED ON THE GROUND (1) THAT SPARKS IS
ESTOPPED FROM MAKING HIS CLAIM BECAUSE HE HAD A FEW DAYS PREVIOUSLY
SETTLED A WORKMEN'S COMPENSATION CLAIM AGAINST THE COMPANY ON THE BASIS
THAT HE WAS PERMANENTLY PARTIALLY DISABLED, (2) THAT SPARKS IS NOT
PHYSICALLY ABLE TO DO THE WORK, AND (3) THAT THIS TYPE OF DISPUTE IS
NOT ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT IN QUESTION. 

THE AGREEMENT PROVIDED THAT DURING ITS TERM THERE WOULD BE "NO
STRIKE," UNLESS THE EMPLOYER REFUSED TO ABIDE BY A DECISION OF THE
ARBITRATOR.  THE AGREEMENT SETS OUT A DETAILED GRIEVANCE PROCEDURE WITH
A PROVISION FOR ARBITRATION (REGARDED AS THE STANDARD FORM) OF ALL
DISPUTES BETWEEN THE PARTIES "AS TO THE MEANING, INTERPRETATION AND
APPLICATION OF THE PROVISIONS OF THIS AGREEMENT."   (FN1) 

THE AGREEMENT RESERVES TO THE MANAGEMENT POWER TO SUSPEND OR
DISCHARGE ANY EMPLOYEE "FOR CAUSE."  (FN2)  IT ALSO CONTAINS A
PROVISION THAT THE EMPLOYER WILL EMPLOY AND PROMOTE EMPLOYEES ON THE
PRINCIPLE OF SENIORITY "WHERE ABILITY AND EFFICIENCY ARE EQUAL."  (FN3)
SPARKS LEFT HIS WORK DUE TO AN INJURY AND WHILE OFF WORK BROUGHT AN
ACTION FOR COMPENSATION BENEFITS.  THE CASE WAS SETTLED, SPARKS'
PHYSICIAN EXPRESSING THE OPINION THAT THE INJURY HAD MADE HIM 25%
"PERMANENTLY PARTIALLY DISABLED."  THAT WAS ON SEPTEMBER 9.  TWO WEEKS
LATER THE UNION FILED A GRIEVANCE WHICH CHARGED THAT SPARKS WAS
ENTITLED TO RETURN TO HIS JOB BY VIRTUE OF THE SENIORITY PROVISION OF
THE COLLECTIVE BARGAINING AGREEMENT.  RESPONDENT REFUSED TO ARBITRATE
AND THIS ACTION WAS BROUGHT.  THE DISTRICT COURT HELD THAT SPARKS,
HAVING ACCEPTED THE SETTLEMENT ON THE BASIS OF PERMANENT PARTIAL
DISABILITY, WAS ESTOPPED TO CLAIM ANY SENIORITY OR EMPLOYMENT RIGHTS
AND GRANTED THE MOTION FOR SUMMARY JUDGMENT.  THE COURT OF APPEALS
AFFIRMED, 264 F.2D 624, FOR DIFFERENT REASONS.  AFTER REVIEWING THE
EVIDENCE IT HELD THAT THE GRIEVANCE IS "A FRIVOLOUS, PATENTLY BASELESS
ONE, NOT SUBJECT TO ARBITRATION UNDER THE COLLECTIVE BARGAINING
AGREEMENT."  ID., AT 628.  THE CASE IS HERE ON A WRIT OF CERTIORARI,
361 U.S. 881. 

154, 29 U.S.C. SEC. 173(D), STATES, "FINAL ADJUSTMENT BY A METHOD
AGREED UPON BY THE PARTIES IS HEREBY DECLARED TO BE THE DESIRABLE
METHOD FOR SETTLEMENT OF GRIEVANCE DISPUTES ARISING OVER THE
APPLICATION OR INTERPRETATION OF AN EXISTING COLLECTIVE-BARGAINING
AGREEMENT  ...  ."  THAT POLICY CAN BE EFFECTUATED ONLY IF THE MEANS
CHOSEN BY THE PARTIES FOR SETTLEMENT OF THEIR DIFFERENCES UNDER A
COLLECTIVE BARGAINING AGREEMENT IS GIVEN FULL PLAY. 

A STATE DECISION THAT HELD TO THE CONTRARY ANNOUNCED A PRINCIPLE THAT
COULD ONLY HAVE A CRIPPLING EFFECT ON GRIEVANCE ARBITRATION.  THE CASE
WAS INTERNATIONAL ASSN. OF MACHINISTS V. CUTLER-HAMMER, INC., 271 APP.
DIV. 917, 67 N.Y.S.2D 317, AFF'D 297 N.Y. 519, 74 N.E.2D 464.  IT HELD
THAT "IF THE MEANING OF THE PROVISION OF THE CONTRACT SOUGHT TO BE
ARBITRATED IS BEYOND DISPUTE, THERE CANNOT BE ANYTHING TO ARBITRATE AND
THE CONTRACT CANNOT BE SAID TO PROVIDE FOR ARBITRATION."  271 APP.
DIV., AT 918, 67 N.Y.S.2D, AT 318.  THE LOWER COURTS IN THE INSTANT
CASE HAD A LIKE PREOCCUPATION WITH ORDINARY CONTRACT LAW.  THE
COLLECTIVE AGREEMENT REQUIRES ARBITRATION OF CLAIMS THAT COURTS MIGHT
BE UNWILLING TO ENTERTAIN.  IN THE CONTEXT OF THE PLANT OR INDUSTRY THE
GRIEVANCE MAY ASSUME PROPORTIONS OF WHICH JUDGES ARE IGNORANT.  YET,
THE AGREEMENT IS TO SUBMIT ALL GRIEVANCES TO ARBITRATION, NOT MERELY
THOSE THAT A COURT MAY DEEM TO BE MERITORIOUS.  THERE IS NO EXCEPTION
IN THE "NO STRIKE" CLAUSE AND NONE THEREFORE SHOULD BE READ INTO THE
GRIEVANCE CLAUSE, SINCE ONE IS THE QUID PRO QUO FOR THE OTHER.  (FN4)
THE QUESTION IS NOT WHETHER IN THE MIND OF THE COURT THERE IS EQUITY IN
THE CLAIM.  ARBITRATION IS A STABILIZING INFLUENCE ONLY AS IT SERVES AS
A VEHICLE FOR HANDLING ANY AND ALL DISPUTES THAT ARISE UNDER THE
AGREEMENT. 

THE COLLECTIVE AGREEMENT CALLS FOR THE SUBMISSION OF GRIEVANCES IN
THE CATEGORIES WHICH IT DESCRIBES, IRRESPECTIVE OF WHETHER A COURT MAY
DEEM THEM TO BE MERITORIOUS.  IN OUR ROLE OF DEVELOPING A MEANINGFUL
BODY OF LAW TO GOVERN THE INTERPRETATION AND ENFORCEMENT OF COLLECTIVE
BARGAINING AGREEMENTS, WE THINK SPECIAL HEED SHOULD BE GIVEN TO THE
CONTEXT IN WHICH COLLECTIVE BARGAINING AGREEMENTS ARE NEGOTIATED AND
THE PURPOSE WHICH THEY ARE INTENDED TO SERVE.  SEE LEWIS V. BENEDICT
COAL CORP., 361 U.S. 459, 468.  THE FUNCTION OF THE COURT IS VERY
LIMITED WHEN THE PARTIES HAVE AGREED TO SUBMIT ALL QUESTIONS OF
CONTRACT INTERPRETATION TO THE ARBITRATOR.  IT IS CONFINED TO
ASCERTAINING WHETHER THE PARTY SEEKING ARBITRATION IS MAKING A CLAIM
WHICH ON ITS FACE IS GOVERNED BY THE CONTRACT.  WHETHER THE MOVING
PARTY IS RIGHT OR WRONG IS A QUESTION OF CONTRACT INTERPRETATION FOR
THE ARBITRATOR.  IN THESE CIRCUMSTANCES THE MOVING PARTY SHOULD NOT BE
DEPRIVED OF THE ARBITRATOR'S JUDGMENT, WHEN IT WAS HIS JUDGMENT AND ALL
THAT IT CONNOTES THAT WAS BARGAINED FOR. 

THE COURTS, THEREFORE, HAVE NO BUSINESS WEIGHING THE MERITS OF THE
GRIEVANCE, (FN5) CONSIDERING WHETHER THERE IS EQUITY IN A PARTICULAR
CLAIM, OR DETERMINING WHETHER THERE IS PARTICULAR LANGUAGE IN THE
WRITTEN INSTRUMENT WHICH WILL SUPPORT THE CLAIM.  THE AGREEMENT IS TO
SUBMIT ALL GRIEVANCES TO ARBITRATION, NOT MERELY THOSE WHICH THE COURT
WILL DEEM MERITORIOUS.  THE PROCESSING OF EVEN FRIVOLOUS CLAIMS MAY
HAVE THERAPEUTIC VALUES OF WHICH THOSE WHO ARE NOT A PART OF THE PLANT
ENVIRONMENT MAY BE QUITE UNAWARE.  (FN6) 

THE UNION CALIMED IN THIS CASE THAT THE COMPANY HAD VIOLATED A
SPECIFIC PROVISION OF THE CONTRACT.   THE COMPANY TOOK THE POSITION
THAT IT HAD NOT VIOLATED THAT CLAUSE.  THERE WAS, THEREFORE, A DISPUTE
BETWEEN THE PARTIES AS TO "THE MEANING, INTERPRETATION AND APPLICATION"
OF THE COLLECTIVE BARGAINING AGREEMENT.  ARBITRATION SHOULD HAVE BEEN
ORDERED.  WHEN THE JUDICIARY UNDERTAKES TO DETERMINE THE MERITS OF A
GRIEVANCE UNDER THE GUISE OF INTERPRETING PROCEDURE OF COLLECTIVE
BARGAINING AGREEMENTS, IT USURPS A FUNCTION WHICH UNDER THAT REGIME IS
ENTRUSTED TO THE ARBITRATION TRIBUNAL.  REVERSED. 

FN1  THE RELEVANT ARBITRATION PROVISIONS READ AS FOLLOWS: 

"ANY DISPUTES, MISUNDERSTANDINGS, DIFFERENCES OR GRIEVANCES ARISING
BETWEEN THE PARTIES AS TO THE MEANING, INTERPRETATION AND APPLICATION
OF THE PROVISIONS OF THIS AGREEMENT, WHICH ARE NOT ADJUSTED AS HEREIN
PROVIDED, MAY BE SUBMITTED TO THE BOARD OF ARBITRATION FOR DECISION
...  . 

"THE ARBITRATOR MAY INTERPRET THIS AGREEMENT AND APPLY IT TO THE
PARTICULAR CASE UNDER CONSIDERATION BUT SHALL, HOWEVER, HAVE NO
AUTHORITY TO ADD TO, SUBTRACT FROM, OR MODIFY THE TERMS OF THE
AGREEMENT.  DISPUTES RELATING TO DISCHARGES OR SUCH MATTERS AS MIGHT
INVOLVE A LOSS OF PAY FOR EMPLOYEES MAY CARRY AN AWARD OF BACK PAY IN
WHOLE OR IN PART AS MAY BE DETERMINED BY THE BOARD OF ARBITRATION. 

"THE DECISION OF THE BOARD OF ARBITRATION SHALL BE FINAL AND
CONCLUSIVELY BINDING UPON BOTH PARTIES, AND THE PARTIES AGREE TO
OBSERVE AND ABIDE BY SAME  ...  ." 

FN2  "THE MANAGEMENT OF THE WORKS, THE DIRECTION OF THE WORKING
FORCE, PLANT LAYOUT AND ROUTINE OF WORK, INCLUDING THE RIGHT TO HIRE,
SUSPEND, TRANSFER, DISCHARGE OR OTHERWISE DISCIPLINE ANY EMPLOYEE FOR
CAUSE, SUCH CAUSE BEING:  INFRACTION OF COMPANY RULES, INEFFICIENCY,
INSUBORDINATION, CONTAGIOUS DISEASE HARMFUL TO OTHERS, AND ANY OTHER
GROUND OR REASON THAT WOULD TEND TO REDUCE OR IMPAIR THE EFFICIENCY OF
PLANT OPERATION; AND TO LAY OFF EMPLOYEES BECAUSE OF LACK OF WORK, IS
RESERVED TO THE COMPANY, PROVIDED IT DOES NOT CONFLICT WITH THIS
AGREEMENT  ...  ." 

FN3  THIS PROVISION PROVIDES IN RELEVANT PART: 

"THE COMPANY AND THE UNION FULLY RECOGNIZE THE PRINCIPLE OF SENIORITY
AS A FACTOR IN THE SELECTION OF EMPLOYEES FOR PROMOTION, TRANSFER, LAY
OFF, RE-EMPLOYMENT, AND FILLING OF VACANCIES, WHERE ABILITY AND
EFFICIENCY ARE EQUAL.  IT IS THE POLICY OF THE COMPANY TO PROMOTE
EMPLOYEES ON THAT BASIS." 

FN4  CF. STRUCTURAL STEEL & ORNAMENTAL IRON ASSN. V. SHOPMENS LOCAL
UNION, 172 F. SUPP. 354, WHERE THE EMPLOYER SUED FOR BREACH OF THE "NO
STRIKE" AGREEMENT. 

FN5  SEE NEW BEDFORD DEFENSE PRODUCTS DIVISION V. LOCAL NO. 1113, 258
F.2D 522, 526 (C.A. 1ST CIR.). 

FN6  COX, CURRENT PROBLEMS IN THE LAW OF GRIEVANCE ARBITRATION, 30
ROCKY MT. L. REV. 247, 261 (1958), WRITES: 

"THE TYPICAL ARBITRATION CLAUSE IS WRITTEN IN WORDS WHICH COVER,
WITHOUT LIMITATION, ALL DISPUTES CONCERNING THE INTERPRETATION OR
APPLICATION OF A COLLECTIVE BARGAINING AGREEMENT.  ITS WORDS DO NOT
RESTRICT ITS SCOPE TO MERITORIOUS DISPUTES OR TWO-SIDED DISPUTES, STILL
LESS ARE THEY LIMITED TO DISPUTES WHICH A JUDGE WILL CONSIDER TWO
SIDED.  FRIVOLOUS CASES ARE OFTEN TAKEN, AND ARE EXPECTED TO BE TAKEN,
TO ARBITRATION.  WHAT ONE MAN CONSIDERS FRIVOLOUS ANOTHER MAY FIND
MERITORIOUS, AND IT IS COMMON KNOWLEDGE IN INDUSTRIAL RELATIONS CIRCLES
THAT GRIEVANCES ARBITRATION OFTEN SERVES AS A SAFETY VALVE FOR
TROUBLESOME COMPLAINTS.  UNDER THESE CIRCUMSTANCES IT SEEMS PROPER TO
READ THE TYPICAL ARBITRATION CLAUSE AS A PROMISE TO ARBITRATE EVERY
CLAIM, MERITORIOUS OR FRIVOLOUS, WHICH THE COMPLAINANT BASES UPON THE
CONTRACT.  THE OBJECTION THAT EQUITY WILL NOT ORDER A PARTY TO DO A
USELESS ACT IS OUTWEIGHED BY THE CATHARTIC VALUE OF ARBITRATING EVEN A
FRIVOLOUS GRIEVANCE AND BY THE DANGERS OF EXCESSIVE JUDICIAL
INTERVENTION." 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE WHITTAKER, BELIEVING THAT THE DISTRICT COURT LACKED
JURISDICTION TO DETERMINE THE MERITS OF THE CLAIM WHICH THE PARTIES HAD
VALIDLY AGREED TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF A BOARD OF
ARBITRATORS (TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448), CONCURS
IN THE RESULT OF THIS OPINION. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE HARLAN JOINS,
CONCURRING.* 

*THIS OPINION APPLIES ALSO TO NO. 443, UNITED STEELWORKERS OF AMERICA
V. WARRIOR & GULF NAVIGATION CO., POST, P. 574, AND NO. 538, UNITED
STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP., POST, P. 593. 

WHILE I JOIN THE COURT'S OPINIONS IN NOS. 443, 360 AND 538, I ADD A
WORD IN NOS. 443 AND 360. 

IN EACH OF THESE TWO CASES THE ISSUE CONCERNS THE ENFORCEMENT OF BUT
ONE PROMISE - THE PROMISE TO ARBITRATE IN THE CONTEXT OF AN AGREEMENT
DEALING WITH A PARTICULAR SUBJECT MATTER, THE INDUSTRIAL RELATIONS
BETWEEN EMPLOYERS AND EMPLOYEES.  OTHER PROMISES CONTAINED IN THE
COLLECTIVE BARGAINING AGREEMENTS ARE BESIDE THE POINT UNLESS, BY THE
VERY TERMS OF THE ARBITRATION PROMISE, THEY ARE MADE RELEVANT TO ITS
INTERPRETATION.  AND I EMPHASIZE THIS, FOR THE ARBITRATION PROMISE IS
ITSELF A CONTRACT.  THE PARTIES ARE FREE TO MAKE THAT PROMISE AS BROAD
OR AS NARROW AS THEY WISH, FOR THERE IS NO COMPULSION IN LAW REQUIRING
THEM TO INCLUDE ANY SUCH PROMISES IN THEIR AGREEMENT.  THE MEANING OF
THE ARBITRATION PROMISE IS NOT TO BE FOUND SIMPLY BY REFERENCE TO THE
DICTIONARY DEFINITIONS OF THE WORDS THE PARTIES USE, OR BY REFERENCE TO
THE INTERPRETATION OF COMMERCIAL ARBITRATION CLAUSES.  WORDS IN A
COLLECTIVE BARGAINING AGREEMENT, RIGHTLY VIEWED BY THE COURT TO BE THE
CHARTER INSTRUMENT OF A SYSTEM OF INDUSTRIAL SELF-GOVERNMENT, LIKE
WORDS IN A STATUTE, ARE TO BE UNDERSTOOD ONLY BY REFERENCE TO THE
BACKGROUND WHICH GAVE RISE TO THEIR INCLUSION.  THE COURT THEREFORE
AVOIDS THE PRESCRIPTION OF INFLEXIBLE RULES FOR THE ENFORCEMENT OF
ARBITRATION PROMISES.  GUIDANCE IS GIVEN BY IDENTIFYING THE VARIOUS
CONSIDERATIONS WHICH A COURT SHOULD TAKE INTO ACCOUNT WHEN CONSTRUING A
PARTICULAR CLAUSE - CONSIDERATIONS OF THE MILIEU IN WHICH THE CLAUSE IS
NEGOTIATED AND OF THE NATIONAL LABOR POLICY.  IT IS PARTICULARLY
UNDERSCORED THAT THE ARBITRAL PROCESS IN COLLECTIVE BARGAINING
PRESUPPOSES THAT THE PARTIES WANTED THE INFORMED JUDGMENT OF AN
ARBITRATOR, PRECISELY FOR THE REASON THAT JUDGES CANNOT PROVIDE IT.
THEREFORE, A COURT ASKED TO ENFORCE A PROMISE TO ARBITRATE SHOULD
ORDINARILY REFRAIN FROM INVOLVING ITSELF IN THE INTERPRETATION OF THE
SUBSTANTIVE PROVISIONS OF THE CONTRACT. 

TO BE SURE, SINCE ARBITRATION IS A CREATURE OF CONTRACT, A COURT MUST
ALWAYS INQUIRE, WHEN A PARTY SEEKS TO INVOKE ITS AID TO FORCE A
RELUCTANT PARTY TO THE ARBITRATION TABLE, WHETHER THE PARTIES HAVE
AGREED TO ARBITRATE THE PARTICULAR DISPUTE.  IN THIS SENSE, THE
QUESTION OF WHETHER A DISPUTE IS "ARBITRABLE" IS INESCAPABLY FOR THE
COURT. 

ON EXAMINING THE ARBITRATION CLAUSE, THE COURT MAY CONCLUDE THAT IT
COMMITS TO ARBITRATION ANY "DISPUTE, DIFFERENCE, DISAGREEMENT, OR
CONTROVERSY OF ANY NATURE OR CHARACTER."  WITH THAT FINDING THE COURT
WILL HAVE EXHAUSTED ITS FUNCTION, EXCEPT TO ORDER THE RELUCTANT PARTY
TO ARBITRATION.  SIMILARLY, ALTHOUGH THE ARBITRATOR MAY BE EMPOWERED
ONLY TO INTERPRET AND APPLY THE CONTRACT, THE PARTIES MAY HAVE PROVIDED
THAT ANY DISPUTE AS TO WHETHER A PARTICULAR CLAIM IS WITHIN THE
ARBITRATION CLAUSE IS ITSELF FOR THE ARBITRATOR.  AGAIN THE COURT,
WITHOUT MORE, MUST SEND ANY DISPUTE TO THE ARBITRATOR, FOR THE PARTIES
HAVE AGREED THAT THE CONSTRUCTION OF THE ARBITRATION PROMISE ITSELF IS
FOR THE ARBITRATOR, AND THE RELUCTANT PARTY HAS BREACHED HIS PROMISE BY
REFUSING TO SUBMIT THE DISPUTE TO ARBITRATION.    IN AMERICAN, THE
COURT DEALS WITH A REQUEST TO ENFORCE THE "STANDARD" FORM OF
ARBITRATION CLAUSE, ONE THAT PROVIDES FOR THE ARBITRATION OF "ANY
DISPUTES, MISUNDERSTANDINGS, DIFFERENCES OR GRIEVANCES ARISING BETWEEN
THE PARTIES AS TO THE MEANING, INTERPRETATION AND APPLICATION OF THIS
AGREEMENT  ...  ."  SINCE THE ARBITRATION CLAUSE ITSELF IS PART OF THE
AGREEMENT, IT MIGHT BE ARGUED THAT A DISPUTE AS TO THE MEANING OF THAT
CLAUSE IS FOR THE ARBITRATOR.  BUT THE COURT REJECTS THIS POSITION,
SAYING THAT THE THRESHOLD QUESTION, THE MEANING OF THE ARBITRATION
CLAUSE ITSELF, IS FOR THE JUDGE UNLESS THE PARTIES CLEARLY STATE TO THE
CONTRARY.  HOWEVER, THE COURT FINDS THAT THE MEANING OF THAT "STANDARD"
CLAUSE IS SIMPLY THAT THE PARTIES HAVE AGREED TO ARBITRATE ANY DISPUTE
WHICH THE MOVING PARTY ASSERTS TO INVOLVE CONSTRUCTION OF THE
SUBSTANTIVE PROVISIONS OF THE CONTRACT, BECAUSE SUCH A DISPUTE
NECESSARILY DOES INVOLVE SUCH A CONSTRUCTION. 

THE ISSUE IN THE WARRIOR CASE IS ESSENTIALLY NO DIFFERENT FROM THAT
IN AMERICAN, THAT IS, IT IS WHETHER THE COMPANY AGREED TO ARBITRATE A
PARTICULAR GRIEVANCE.  IN CONTRAST TO AMERICAN, HOWEVER, THE
ARBITRATION PROMISE HERE EXCLUDES A PARTICULAR AREA FROM ARBITRATION -
"MATTERS WHICH ARE STRICTLY A FUNCTION OF MANAGEMENT."  BECAUSE THE
ARBITRATION PROMISE IS DIFFERENT, THE SCOPE OF THE COURT'S INQUIRY MAY
BE BROADER.  HERE, A COURT MAY BE REQUIRED TO EXAMINE THE SUBSTANTIVE
PROVISIONS OF THE CONTRACT TO ASCERTAIN WHETHER THE PARTIES HAVE
PROVIDED THAT CONTRACTING OUT SHALL BE A "FUNCTION OF MANAGEMENT."  IF
A COURT MAY DELVE INTO THE MERITS TO THE EXTENT OF INQUIRING WHETHER
THE PARTIES HAVE EXPRESSLY AGREED WHETHER OR NOT CONTRACTING OUT WAS A
"FUNCTION OF MANAGEMENT," WHY WAS IT ERROR FOR THE LOWER COURT HERE TO
EVALUATE THE EVIDENCE OF BARGAINING HISTORY FOR THE SAME PURPOSE?  NEAT
LOGICAL DISTINCTIONS DO NOT PROVIDE THE ANSWER.  THE COURT RIGHTLY
CONCLUDES THAT APPROPRIATE REGARD FOR THE NATIONAL LABOR POLICY AND THE
SPECIAL FACTORS RELEVANT TO THE LABOR ARBITRAL PROCESS, ADMONISH THAT
JUDICIAL INQUIRY INTO THE MERITS OF THIS GRIEVANCE SHOULD BE LIMITED TO
THE SEARCH FOR AN EXPLICIT PROVISION WHICH BRINGS THE GRIEVANCE UNDER
THE COVER OF THE EXCLUSION CLAUSE SINCE "THE EXCLUSION CLAUSE IS VAGUE
AND ARBITRATION CLAUSE QUITE BROAD."  THE HAZARD OF GOING FURTHER INTO
THE MERITS IS AMPLY DEMONSTRATED BY WHAT THE COURTS BELOW DID.  ON THE
BASIS OF INCONCLUSIVE EVIDENCE, THOSE COURTS FOUND THAT WARRIOR WAS IN
NO WAY LIMITED BY ANY IMPLIED COVENANTS OF GOOD FAITH AND FAIR DEALING
FROM CONTRACTING OUT AS IT PLEASED - WHICH WOULD NECESSARILY MEAN THAT
WARRIOR WAS FREE COMPLETELY TO DESTROY THE COLLECTIVE BARGAINING
AGREEMENT BY CONTRACTING OUT ALL THE WORK. 

THE VERY AMBIGUITY OF THE WARRIOR EXCLUSION CLAUSE SUGGESTS THAT THE
PARTIES WERE GENERALLY MORE CONCERNED WITH HAVING AN ARBITRATOR RENDER
DECISIONS AS TO THE MEANING OF THE CONTRACT THAN THEY WERE IN
RESTRICTING THE ARBITRATOR'S JURISDICTION.  THE CASE MIGHT OF COURSE BE
OTHERWISE WERE THE ARBITRATION CLAUSE VERY NARROW, OR THE EXCLUSION
CLAUSE QUITE SPECIFIC, FOR THE INFERENCE MIGHT THEN BE PERMISSIBLE THAT
THE PARTIES HAD MANIFESTED A GREATER INTEREST IN CONFINING THE
ARBITRATOR; THE PRESUMPTION OF ARBITRABILITY WOULD THEN NOT HAVE THE
SAME FORCE AND THE COURT WOULD BE SOMEWHAT FREER TO EXAMINE INTO THE
MERITS. 

THE COURT MAKES REFERENCE TO AN ARBITRATION CLAUSE BEING THE QUID PRO
QUO FOR A NO-STRIKE CLAUSE.  I DO NOT UNDERSTAND THE COURT TO MEAN THAT
THE APPLICATION OF THE PRINCIPLES ANNOUNCED TODAY DEPENDS UPON THE
PRESENCE OF A NO-STRIKE CLAUSE IN THE AGREEMENT. 

MR. JUSTICE FRANKFURTER JOINS THESE OBSERVATIONS. 
..END :















UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF NAVIGATION CO. 363 U.S.
574 


NO. 443.  ARGUED APRIL 27, 1960.  - DECIDED JUNE 20, 1960.  - 269 F.2D
633, REVERSED. 


THIS SUIT UNDER SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT,
1947, WAS BROUGHT BY A LABOR UNION TO COMPEL ARBITRATION OF A GRIEVANCE
BASED UPON THE EMPLOYER'S PRACTICE OF CONTRACTING OUT WORK WHILE LAYING
OFF EMPLOYEES WHO COULD HAVE PERFORMED SUCH WORK.  THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE PARTIES CONTAINED "NO STRIKE" AND "NO
LOCK-OUT" PROVISIONS AND SET UP A GRIEVANCE PROCEDURE CULMINATING IN
ARBITRATION.  IT PROVIDED THAT "MATTERS WHICH ARE STRICTLY A FUNCTION
OF MANAGEMENT SHALL NOT BE SUBJECT TO ARBITRATION"; BUT IT ALSO
PROVIDED THAT "SHOULD DIFFERENCES ARISE  ...  AS TO THE MEANING AND
APPLICATION OF THE PROVISIONS OF THIS AGREEMENT, OR SHOULD ANY LOCAL
TROUBLE OF ANY KIND ARISE," THE GRIEVANCE PROCEDURE SHOULD BE
FOLLOWED.  THE COURT OF APPEALS RULED THAT DECIDING WHETHER TO CONTRACT
OUT WORK WAS "STRICTLY A FUNCTION OF MANAGEMENT" WITHIN THE MEANING OF
THE AGREEMENT, AND IT SUSTAINED A JUDGMENT OF THE DISTRICT COURT
DISMISSING THE COMPLAINT.  HELD:  IT ERRED IN DOING SO, AND THE
JUDGMENT IS REVERSED.  PP. 575-585. 

(A)  IN A SUIT UNDER SEC. 301(A), JUDICIAL INQUIRY MUST BE STRICTLY
CONFINED TO THE QUESTION WHETHER THE RELUCTANT PARTY DID AGREE TO
ARBITRATE THE GRIEVANCE OR TO GIVE THE ARBITRATOR POWER TO MAKE THE
AWARD HE MADE; AN ORDER TO ARBITRATE THE PARTICULAR GRIEVANCE SHOULD
NOT BE DENIED UNLESS IT MAY BE SAID WITH POSITIVE ASSURANCE THAT THE
ARBITRATION CLAUSE IS NOT SUSCEPTIBLE OF AN INTERPRETATION THAT COVERS
THE ASSERTED DISPUTE; AND DOUBTS SHOULD BE RESOLVED IN FAVOR OF
COVERAGE.   PP. 582-583. 

(B)  IN THE ABSENCE OF ANY EXPRESS PROVISION EXCLUDING A PARTICULAR
GRIEVANCE FROM ARBITRATION, ONLY THE MOST FORCEFUL EVIDENCE OF A
PURPOSE TO EXCLUDE THE CLAIM FROM ARBITRATION CAN PREVAIL, PARTICULARLY
WHERE, AS HERE, THE EXCLUSION CLAUSE IS VAGUE AND THE ARBITRATION
CLAUSE QUITE BROAD.  PP. 583-585. 

(C)  SINCE, IN THIS CASE, THE PARTIES HAD AGREED THAT ANY DISPUTE "AS
TO THE MEANING OF THIS AGREEMENT" WOULD BE DETERMINED BY ARBITRATION,
IT WAS FOR THE ARBITRATOR, NOT THE COURTS, TO DECIDE WHETHER THE
CONTRACTING OUT HERE INVOLVED VIOLATED THE AGREEMENT.  P. 585. 

UNITED STEELWORKERS OF AMERICA V. WARRIOR & GULF NAVIGATION CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BRENNAN. 

RESPONDENT TRANSPORTS STEEL AND STEEL PRODUCTS BY BARGE AND MAINTAINS
A TERMINAL AT CHICKASAW, ALABAMA, WHERE IT PERFORMS MAINTENANCE AND
REPAIR WORK ON ITS BARGES.  THE EMPLOYEES AT THAT TERMINAL CONSTITUTE A
BARGAINING UNIT COVERED BY A COLLECTIVE BARGAINING AGREEMENT NEGOTIATED
BY PETITIONER UNION.  RESPONDENT BETWEEN 1956 AND 1958 LAID OFF SOME
EMPLOYEES, REDUCING THE BARGAINING UNIT FROM 42 TO 23 MEN.  THIS
REDUCTION WAS DUE IN PART TO RESPONDENT CONTRACTING MAINTENANCE WORK,
PREVIOUSLY DONE BY ITS EMPLOYEES, TO OTHER COMPANIES.  THE LATTER USED
RESPONDENT'S SUPERVISORS TO LAY OUT THE WORK AND HIRED SOME OF THE LAID
OFF EMPLOYEES OF RESPONDENT (AT REDUCED WAGES).  SOME WERE IN FACT
ASSIGNED TO WORK ON RESPONDENT'S BARGES.  A NUMBER OF EMPLOYEES SIGNED
A GRIEVANCE WHICH PETITIONER PRESENTED TO RESPONDENT, THE GRIEVANCE
READING: 

"WE ARE HEREBY PROTESTING THE COMPANY'S ACTIONS, OF ARBITRARILY AND
UNREASONABLY CONTRACTING OUT WORK TO OTHER CONCERNS, THAT COULD AND
PREVIOUSLY HAS BEEN PERFORMED BY COMPANY EMPLOYEES. 

"THIS PRACTICE BECOMES UNREASONABLE, UNJUST AND DISCRIMINATORY IN
LIEU OF THE FACT THAT AT PRESENT THERE ARE A NUMBER OF EMPLOYEES THAT
HAVE BEEN LAID OFF FOR ABOUT 1 AND 1/2 YEARS OR MORE FOR ALLEGEDLY LACK
OF WORK. 

"CONFRONTED WITH THESE FACTS WE CHARGE THAT THE COMPANY IS IN
VIOLATION OF THE CONTRACT BY INDUCING A PARTIAL LOCK-OUT OF A NUMBER OF
THE EMPLOYEES WHO WOULD OTHERWISE BE WORKING WERE IT NOT FOR THIS
UNFAIR PRACTICE." 

THE COLLECTIVE AGREEMENT HAD BOTH A "NO STRIKE" AND A "NO LOCKOUT"
PROVISION.  IT ALSO HAD A GRIEVANCE PROCEDURE WHICH PROVIDED IN
RELEVANT PART AS FOLLOWS: 

"ISSUES WHICH CONFLICT WITH ANY FEDERAL STATUTE IN ITS APPLICATION AS
ESTABLISHED BY COURT PROCEDURE OR MATTERS WHICH ARE STRICTLY A FUNCTION
OF MANAGEMENT SHALL NOT BE SUBJECT TO ARBITRATION UNDER THIS SECTION. 

"SHOULD DIFFERENCES ARISE BETWEEN THE COMPANY AND THE UNION OR ITS
MEMBERS EMPLOYED BY THE COMPANY AS TO THE MEANING AND APPLICATION OF
THE PROVISIONS OF THIS AGREEMENT, OR SHOULD ANY LOCAL TROUBLE OF ANY
KIND ARISE, THERE SHALL BE NO SUSPENSION OF WORK ON ACCOUNT OF SUCH
DIFFERENCES BUT AN EARNEST EFFORT SHALL BE MADE TO SETTLE SUCH
DIFFERENCES IMMEDIATELY IN THE FOLLOWING MANNER: 

"A.  FOR MAINTENANCE EMPLOYEES: 

"FIRST, BETWEEN THE AGGRIEVED EMPLOYEES, AND THE FOREMAN INVOLVED. 

"SECOND, BETWEEN A MEMBER OR MEMBERS OF THE GRIEVANCE COMMITTEE
DESIGNATED BY THE UNION, AND THE FOREMAN AND MASTER MECHANIC. 

     *         *         *         *         * 

"FIFTH, IF AGREEMENT HAS NOT BEEN REACHED THE MATTER SHALL BE
REFERRED TO AN IMPARTIAL UMPIRE FOR DECISION.  THE PARTIES SHALL MEET
TO DECIDE ON AN UMPIRE ACCEPTABLE TO BOTH.  IF NO AGREEMENT ON
SELECTION OF AN UMPIRE IS REACHED, THE PARTIES SHALL JOINTLY PETITION
THE UNITED STATES CONCILIATION SERVICE FOR SUGGESTION OF A LIST OF
UMPIRES FROM WHICH SELECTION WILL BE MADE.  THE DECISION OF THE UMPIRE
SHALL BE FINAL. 

SETTLEMENT OF THIS GRIEVANCE WAS NOT HAD AND RESPONDENT REFUSED
ARBITRATION.  THIS SUIT WAS THEN COMMENCED BY THE UNION TO COMPEL IT.
(FN1) 

THE DISTRICT COURT GRANTED RESPONDENT'S MOTION TO DISMISS THE
COMPLAINT.  168 F. SUPP. 702.  IT HELD AFTER HEARING EVIDENCE, MUCH OF
WHICH WENT TO THE MERITS OF THE GRIEVANCE, THAT THE AGREEMENT DID NOT
"CONFIDE IN AN ARBITRATOR THE RIGHT TO REVIEW THE DEFENDANT'S BUSINESS
JUDGMENT IN CONTRACTING OUT WORK."  ID., AT 705.  IT FURTHER HELD THAT
"THE CONTRACTING OUT OF REPAIR AND MAINTENANCE WORK, AS WELL AS
CONSTRUCTION WORK, IS STRICTLY A FUNCTION OF MANAGEMENT NOT LIMITED IN
ANY RESPECT BY THE LABOR AGREEMENT INVOLVED HERE."  IBID.  THE COURT OF
APPEALS AFFIRMED BY A DIVIDED VOTE, 269 F.2D 633, THE MAJORITY HOLDING
THAT THE COLLECTIVE AGREEMENT HAD WITHDRAWN FROM THE GRIEVANCE
PROCEDURE "MATTERS WHICH ARE STRICTLY A FUNCTION OF MANAGEMENT" AND
THAT CONTRACTING OUT FELL IN THAT EXCEPTION.  THE CASE IS HERE ON A
WRIT OF CERTIORARI.  361 U.S. 912. 

WE HELD IN TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, THAT A
GRIEVANCE ARBITRATION PROVISION IN A COLLECTIVE AGREEMENT COULD BE
ENFORCED BY REASON OF SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT
(FN2) AND THAT THE POLICY TO BE APPLIED IN ENFORCING THIS TYPE OF
ARBITRATION WAS THAT REFLECTED IN OUR NATIONAL LABOR LAWS.  ID., AT 456
457.  THE PRESENT FEDERAL POLICY IS TO PROMOTE INDUSTRIAL STABILIZATION
THROUGH THE COLLECTIVE BARGAINING AGREEMENT.  (FN3)  ID., AT 453-454. 
A MAJOR FACTOR IN ACHIEVING INDUSTRIAL PEACE IS THE INCLUSION OF A
PROVISION FOR ARBITRATION OF GRIEVANCES IN THE COLLECTIVE BARGAINING
AGREEMENT.  (FN4) 

THUS THE RUN OF ARBITRATION CASES, ILLUSTRATED BY WILKO V. SWAN, 346
U.S. 427, BECOMES IRRELEVANT TO OUR PROBLEM.  THERE THE CHOICE IS
BETWEEN THE ADJUDICATION OF CASES OR CONTROVERSIES IN COURTS WITH
ESTABLISHED PROCEDURES OR EVEN SPECIAL STATUTORY SAFEGUARDS ON THE ONE
HAND AND THE SETTLEMENT OF THEM IN THE MORE INFORMAL ARBITRATION
TRIBUNAL ON THE OTHER.  IN THE COMMERCIAL CASE, ARBITRATION IS THE
SUBSTITUTE FOR LITIGATION.  HERE ARBITRATION IS THE SUBSTITUTE FOR
INDUSTRIAL STRIFE.  SINCE ARBITRATION OF LABOR DISPUTES HAS QUITE
DIFFERENT FUNCTIONS FROM ARBITRATION UNDER AN ORDINARY COMMERCIAL
AGREEMENT, THE HOSTILITY EVINCED BY COURTS TOWARD ARBITRATION OF
COMMERCIAL AGREEMENTS HAS NO PLACE HERE.  FOR ARBITRATION OF LABOR
DISPUTES UNDER COLLECTIVE BARGAINING AGREEMENTS IS PART AND PARCEL OF
THE COLLECTIVE BARGAINING PROCESS ITSELF. 

THE COLLECTIVE BARGAINING AGREEMENT STATES THE RIGHTS AND DUTIES OF
THE PARTIES.  IT IS MORE THAN A CONTRACT; IT IS A GENERALIZED CODE TO
GOVERN A MYRIAD OF CASES WHICH THE DRAFTSMEN CANNOT WHOLLY ANTICIPATE. 
SEE SHULMAN, REASON, CONTRACT, AND LAW IN LABOR RELATIONS, 68 HARV. L.
REV. 999, 1004-1005.  THE COLLECTIVE AGREEMENT COVERS THE WHOLE
EMPLOYMENT RELATIONSHIP.  (FN5)  IT CALLS INTO BEING A NEW COMMON LAW -
THE COMMON LAW OF A PARTICULAR INDUSTRY OR OF A PARTICULAR PLANT.  AS
ONE OBSERVER HAS PUT IT: (FN6) 

"  ...  IT IS NOT UNQUALIFIEDLY TRUE THAT A COLLECTIVE-BARGAINING
AGREEMENT IS SIMPLY A DOCUMENT BY WHICH THE UNION AND EMPLOYEES HAVE
IMPOSED UPON MANAGEMENT LIMITED, EXPRESS RESTRICTIONS OF ITS OTHERWISE
ABSOLUTE RIGHT TO MANAGE THE ENTERPRISE, SO THAT AN EMPLOYEE'S CLAIM
MUST FAIL UNLESS HE CAN POINT TO A SPECIFIC CONTRACT PROVISION UPON
WHICH THE CLAIM IS FOUNDED.  THERE ARE TOO MANY PEOPLE, TOO MANY
PROBLEMS, TOO MANY UNFORESEEABLE CONTINGENCIES TO MAKE THE WORDS OF THE
CONTRACT THE EXCLUSIVE SOURCE OF RIGHTS AND DUTIES.  ONE CANNOT REDUCE
ALL THE RULES GOVERNING A COMMUNITY LIKE AN INDUSTRIAL PLANT TO FIFTEEN
OR EVEN FIFTY PAGES.  WITHIN THE SPHERE OF COLLECTIVE BARGAINING, THE
INSTITUTIONAL CHARACTERISTICS AND THE GOVERNMENTAL NATURE OF THE
COLLECTIVE-BARGAINING PROCESS DEMAND A COMMON LAW OF THE SHOP WHICH
IMPLEMENTS AND FURNISHES THE CONTEXT OF THE AGREEMENT.  WE MUST ASSUME
THAT INTELLIGENT NEGOTIATORS ACKNOWLEDGED SO PLAIN A NEED UNLESS THEY
STATED A CONTRARY RULE IN PLAIN WORDS." 

A COLLECTIVE BARGAINING AGREEMENT IS AN EFFORT TO ERECT A SYSTEM OF
INDUSTRIAL SELF-GOVERNMENT.  WHEN MOST PARTIES ENTER INTO CONTRACTUAL
RELATIONSHIP THEY DO SO VOLUNTARILY, IN THE SENSE THAT THERE IS NO REAL
COMPULSION TO DEAL WITH ONE ANOTHER, AS OPPOSED TO DEALING WITH OTHER
PARTIES.  THIS IS NOT TRUE OF THE LABOR AGREEMENT.  THE CHOICE IS
GENERALLY NOT BETWEEN ENTERING OR REFUSING TO ENTER INTO A
RELATIONSHIP, FOR THAT IN ALL PROBABILITY PRE-EXISTS THE NEGOTIATIONS. 
RATHER IT IS BETWEEN HAVING THAT RELATIONSHIP GOVERNED BY AN AGREED
UPON RULE OF LAW OR LEAVING EACH AND EVERY MATTER SUBJECT TO A
TEMPORARY RESOLUTION DEPENDENT SOLELY UPON THE RELATIVE STRENGTH, AT
ANY GIVEN MOMENT, OF THE CONTENDING FORCES.  THE MATURE LABOR AGREEMENT
MAY ATTEMPT TO REGULATE ALL ASPECTS OF THE COMPLICATED RELATIONSHIP,
FROM THE MOST CRUCIAL TO THE MOST MINUTE OVER AN EXTENDED PERIOD OF
TIME.  BECAUSE OF THE COMPULSION TO REACH AGREEMENT AND THE BREADTH OF
THE MATTERS COVERED, AS WELL AS THE NEED FOR A FAIRLY CONCISE AND
READABLE INSTRUMENT, THE PRODUCT OF NEGOTIATIONS (THE WRITTEN DOCUMENT)
IS, IN THE WORDS OF THE LATE DEAN SHULMAN, "A COMPILATION OF DIVERSE
PROVISIONS:  SOME PROVIDE OBJECTIVE CRITERIA ALMOST AUTOMATICALLY
APPLICABLE; SOME PROVIDE MORE OR LESS SPECIFIC STANDARDS WHICH REQUIRE
REASON AND JUDGMENT IN THEIR APPLICATION; AND SOME DO LITTLE MORE THAN
LEAVE PROBLEMS TO FUTURE CONSIDERATION WITH AN EXPRESSION OF HOPE AND
GOOD FAITH."  SHULMAN, SUPRA, AT 1005.  GAPS MAY BE LEFT TO BE FILLED
IN BY REFERENCE TO THE PRACTICES OF THE PARTICULAR INDUSTRY AND OF THE
VARIOUS SHOPS COVERED BY THE AGREEMENT.  MANY OF THE SPECIFIC PRACTICES
WHICH UNDERLIE THE AGREEMENT MAY BE UNKNOWN, EXCEPT IN HAZY FORM, EVEN
TO THE NEGOTIATORS.  COURTS AND ARBITRATION IN THE CONTEXT OF MOST
COMMERCIAL CONTRACTS ARE RESORTED TO BECAUSE THERE HAS BEEN A BREAKDOWN
IN THE WORKING RELATIONSHIP OF THE PARTIES; SUCH RESORT IS THE UNWANTED
EXCEPTION.  BUT THE GRIEVANCE MACHINERY UNDER A COLLECTIVE BARGAINING
AGREEMENT IS AT THE VERY HEART OF THE SYSTEM OF INDUSTRIAL SELF
GOVERNMENT.  ARBITRATION IS THE MEANS OF SOLVING THE UNFORESEEABLE BY
MOLDING A SYSTEM OF PRIVATE LAW FOR ALL THE PROBLEMS WHICH MAY ARISE
AND TO PROVIDE FOR THEIR SOLUTION IN A WAY WHICH WILL GENERALLY ACCORD
WITH THE VARIANT NEEDS AND DESIRES OF THE PARTIES.  THE PROCESSING OF
DISPUTES THROUGH THE GRIEVANCE MACHINERY IS ACTUALLY A VEHICLE BY WHICH
MEANING AND CONTENT ARE GIVEN TO THE COLLECTIVE BARGAINING AGREEMENT. 

APART FROM MATTERS THAT THE PARTIES SPECIFICALLY EXCLUDE, ALL OF THE
QUESTIONS ON WHICH THE PARTIES DISAGREE MUST THEREFORE COME WITHIN THE
SCOPE OF THE GRIEVANCE AND ARBITRATION PROVISIONS OF THE COLLECTIVE
AGREEMENT.  THE GRIEVANCE PROCEDURE IS, IN OTHER WORDS, A PART OF THE
CONTINUOUS COLLECTIVE BARGAINING PROCESS.  IT, RATHER THAN A STRIKE, IS
THE TERMINAL POINT OF A DISAGREEMENT. 

THE LABOR ARBITRATOR PERFORMS FUNCTIONS WHICH ARE NOT NORMAL TO THE
COURTS; THE CONSIDERATIONS WHICH HELP HIM FASHION JUDGMENTS MAY INDEED
BE FOREIGN TO THE COMPETENCE OF COURTS. 

"A PROPER CONCEPTION OF THE ARBITRATOR'S FUNCTION IS BASIC.  HE IS
NOT A PUBLIC TRIBUNAL IMPOSED UPON THE PARTIES BY SUPERIOR AUTHORITY
WHICH THE PARTIES ARE OBLIGED TO ACCEPT.  HE HAS NO GENERAL CHARTER TO
ADMINISTER JUSTICE FOR A COMMUNITY WHICH TRANSCENDS THE PARTIES.  HE IS
RATHER PART OF A SYSTEM OF SELF-GOVERNMENT CREATED BY AND CONFINED TO
THE PARTIES  ...  ."  SHULMAN, SUPRA, AT 1016. 

THE LABOR ARBITRATOR'S SOURCE OF LAW IS NOT CONFINED TO THE EXPRESS
PROVISIONS OF THE CONTRACT, AS THE INDUSTRIAL COMMON LAW - THE
PRACTICES OF THE INDUSTRY AND THE SHOP - IS EQUALLY A PART OF THE
COLLECTIVE BARGAINING AGREEMENT ALTHOUGH NOT EXPRESSED IN IT.  THE
LABOR ARBITRATOR IS USUALLY CHOSEN BECAUSE OF THE PARTIES' CONFIDENCE
IN HIS KNOWLEDGE OF THE COMMON LAW OF THE SHOP AND THEIR TRUST IN HIS
PERSONAL JUDGMENT TO BRING TO BEAR CONSIDERATIONS WHICH ARE NOT
EXPRESSED IN THE CONTRACT AS CRITERIA FOR JUDGMENT.  THE PARTIES EXPECT
THAT HIS JUDGMENT OF A PARTICULAR GRIEVANCE WILL REFLECT NOT ONLY WHAT
THE CONTRACT SAYS BUT, INSOFAR AS THE COLLECTIVE BARGAINING AGREEMENT
PERMITS, SUCH FACTORS AS THE EFFECT UPON PRODUCTIVITY OF A PARTICULAR
RESULT, ITS CONSEQUENCE TO THE MORALE OF THE SHOP, HIS JUDGMENT WHETHER
TENSIONS WILL BE HEIGHTENED OR DIMINISHED.  FOR THE PARTIES' OBJECTIVE
IN USING THE ARBITRATION PROCESS IS PRIMARILY TO FURTHER THEIR COMMON
GOAL OF UNINTERRUPTED PRODUCTION UNDER THE AGREEMENT, TO MAKE THE
AGREEMENT SERVE THEIR SPECIALIZED NEEDS.  THE ABLEST JUDGE CANNOT BE
EXPECTED TO BRING THE SAME EXPERIENCE AND COMPETENCE TO BEAR UPON THE
DETERMINATION OF A GRIEVANCE, BECAUSE HE CANNOT BE SIMILARLY INFORMED. 

THE CONGRESS, HOWEVER, HAS BY SEC. 301 OF THE LABOR MANAGEMENT
RELATIONS ACT, ASSIGNED THE COURTS THE DUTY OF DETERMINING WHETHER THE
RELUCTANT PARTY HAS BREACHED HIS PROMISE TO ARBITRATE.  FOR ARBITRATION
IS A MATTER OF CONTRACT AND A PARTY CANNOT BE REQUIRED TO SUBMIT TO
ARBITRATION ANY DISPUTE WHICH HE HAS NOT AGREED SO TO SUBMIT.  YET, TO
BE CONSISTENT WITH CONGRESSIONAL POLICY IN FAVOR OF SETTLEMENT OF
DISPUTES BY THE PARTIES THROUGH THE MACHINERY OF ARBITRATION, THE
JUDICIAL INQUIRY UNDER SEC. 301 MUST BE STRICTLY CONFINED TO THE
QUESTION WHETHER THE RELUCTANT PARTY DID AGREE TO ARBITRATE THE
GRIEVANCE OR DID AGREE TO GIVE THE ARBITRATOR POWER TO MAKE THE AWARD
HE MADE.  AN ORDER TO ARBITRATE THE PARTICULAR GRIEVANCE SHOULD NOT BE
DENIED UNLESS IT MAY BE SAID WITH POSITIVE ASSURANCE THAT THE
ARBITRATION CLAUSE IS NOT SUSCEPTIBLE OF AN INTERPRETATION THAT COVERS
THE ASSERTED DISPUTE.  DOUBTS SHOULD BE RESOLVED IN FAVOR OF COVERAGE. 
(FN7) 

WE DO NOT AGREE WITH THE LOWER COURTS THAT CONTRACTING-OUT GRIEVANCES
WERE NECESSARILY EXCEPTED FROM THE GRIEVANCE PROCEDURE OF THIS
AGREEMENT.  TO BE SURE, THE AGREEMENT PROVIDES THAT "MATTERS WHICH ARE
STRICTLY A FUNCTION OF MANAGEMENT SHALL NOT BE SUBJECT TO
ARBITRATION."  BUT IT GOES ON TO SAY THAT IF "DIFFERENCES" ARISE OR IF
"ANY LOCAL TROUBLE OF ANY KIND" ARISES, THE GRIEVANCE PROCEDURE SHALL
BE APPLICABLE.    COLLECTIVE BARGAINING AGREEMENTS REGULATE OR RESTRICT
THE EXERCISE OF MANAGEMENT FUNCTIONS; THEY DO NOT OUST MANAGEMENT FROM
THE PERFORMANCE OF THEM.  MANAGEMENT HIRES AND FIRES, PAYS AND
PROMOTES, SUPERVISES AND PLANS.  ALL THESE ARE PART OF ITS FUNCTION,
AND ABSENT A COLLECTIVE BARGAINING AGREEMENT, IT MAY BE EXERCISED
FREELY EXCEPT AS LIMITED BY PUBLIC LAW AND BY THE WILLINGNESS OF
EMPLOYEES TO WORK UNDER THE PARTICULAR, UNILATERALLY IMPOSED
CONDITIONS.  A COLLECTIVE BARGAINING AGREEMENT MAY TREAT ONLY WITH
CERTAIN SPECIFIC PRACTICES, LEAVING THE REST TO MANAGEMENT BUT SUBJECT
TO THE POSSIBILITY OF WORK STOPPAGES.  WHEN, HOWEVER, AN ABSOLUTE NO
STRIKE CLAUSE IS INCLUDED IN THE AGREEMENT, THEN IN A VERY REAL SENSE
EVERYTHING THAT MANAGEMENT DOES IS SUBJECT TO THE AGREEMENT, FOR EITHER
MANAGEMENT IS PROHIBITED OR LIMITED IN THE ACTION IT TAKES, OR IF NOT,
IT IS PROTECTED FROM INTERFERENCE BY STRIKES.  THIS COMPREHENSIVE REACH
OF THE COLLECTIVE BARGAINING AGREEMENT DOES NOT MEAN, HOWEVER, THAT THE
LANGUAGE, "STRICTLY A FUNCTION OF MANAGEMENT," HAS NO MEANING. 

"STRICTLY A FUNCTION OF MANAGEMENT" MIGHT BE THOUGHT TO REFER TO ANY
PRACTICE OF MANAGEMENT IN WHICH, UNDER PARTICULAR CIRCUMSTANCES
PRESCRIBED BY THE AGREEMENT, IT IS PERMITTED TO INDULGE.  BUT IF
COURTS, IN ORDER TO DETERMINE ARBITRABILITY, WERE ALLOWED TO DETERMINE
WHAT IS PERMITTED AND WHAT IS NOT, THE ARBITRATION CLAUSE WOULD BE
SWALLOWED UP BY THE EXCEPTION.  EVERY GRIEVANCE IN A SENSE INVOLVES A
CLAIM THAT MANAGEMENT HAS VIOLATED SOME PROVISION OF THE AGREEMENT. 

ACCORDINGLY, "STRICTLY A FUNCTION OF MANAGEMENT" MUST BE INTERPRETED
AS REFERRING ONLY TO THAT OVER WHICH THE CONTRACT GIVES MANAGEMENT
COMPLETE CONTROL AND UNFETTERED DISCRETION.  RESPONDENT CLAIMS THAT THE
CONTRACTING OUT OF WORK FALLS WITHIN THIS CATEGORY.  CONTRACTING OUT
WORK IS THE BASIS OF MANY GRIEVANCES; AND THAT TYPE OF CLAIM IS GRIST
IN THE MILLS OF THE ARBITRATORS.  (FN8)  A SPECIFIC COLLECTIVE
BARGAINING AGREEMENT MAY EXCLUDE CONTRACTING OUT FROM THE GRIEVANCE
PROCEDURE.  OR A WRITTEN COLLATERAL AGREEMENT MAY MAKE CLEAR THAT
CONTRACTING OUT WAS NOT A MATTER FOR ARBITRATION.  IN SUCH A CASE A
GRIEVANCE BASED SOLELY ON CONTRACTING OUT WOULD NOT BE ARBITRABLE. 
HERE, HOWEVER, THERE IS NO SUCH PROVISION.  NOR IS THERE ANY SHOWING
THAT THE PARTIES DESIGNED THE PHRASE "STRICTLY A FUNCTION OF
MANAGEMENT" TO ENCOMPASS ANY AND ALL FORMS OF CONTRACTING OUT.  IN THE
ABSENCE OF ANY EXPRESS PROVISION EXCLUDING A PARTICULAR GRIEVANCE FROM
ARBITRATION, WE THINK ONLY THE MOST FORCEFUL EVIDENCE OF A PURPOSE TO
EXCLUDE THE CLAIM FROM ARBITRATION CAN PREVAIL, PARTICULARLY WHERE, AS
HERE, THE EXCLUSION CLAUSE IS VAGUE AND THE ARBITRATION CLAUSE QUITE
BROAD.  SINCE ANY ATTEMPT BY A COURT TO INFER SUCH A PURPOSE
NECESSARILY COMPREHENDS THE MERITS, THE COURT SHOULD VIEW WITH
SUSPICION AN ATTEMPT TO PERSUADE IT TO BECOME ENTANGLED IN THE
CONSTRUCTION OF THE SUBSTANTIVE PROVISIONS OF A LABOR AGREEMENT, EVEN
THROUGH THE BACK DOOR OF INTERPRETING THE ARBITRATION CLAUSE, WHEN THE
ALTERNATIVE IS TO UTILIZE THE SERVICES OF AN ARBITRATOR. 

THE GRIEVANCE ALLEGED THAT THE CONTRACTING OUT WAS A VIOLATION OF THE
COLLECTIVE BARGAINING AGREEMENT.  THERE WAS, THEREFORE, A DISPUTE "AS
TO THE MEANING AND APPLICATION OF THE PROVISIONS OF THIS AGREEMENT"
WHICH THE PARTIES HAD AGREED WOULD BE DETERMINED BY ARBITRATION. 

THE JUDICIARY SITS IN THESE CASES TO BRING INTO OPERATION AN ARBITRAL
PROCESS WHICH SUBSTITUTES A REGIME OF PEACEFUL SETTLEMENT FOR THE OLDER
REGIME OF INDUSTRIAL CONFLICT.  WHETHER CONTRACTING OUT IN THE PRESENT
CASE VIOLATED THE AGREEMENT IS THE QUESTION.  IT IS A QUESTION FOR THE
ARBITER, NOT FOR THE COURTS.  REVERSED. 

FN1  SECTION 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61
STAT. 156, 29 U.S.C.  SEC. 185(A), PROVIDES: 

"SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE
AS DEFINED IN THIS ACT, OR BETWEEN ANY SUCH LABOR ORGANIZATIONS, MAY BE
BROUGHT IN ANY DISTRICT COURT OF THE UNITED STATES HAVING JURISDICTION
OF THE PARTIES, WITHOUT RESPECT TO THE AMOUNT IN CONTROVERSY OR WITHOUT
REGARD TO THE CITIZENSHIP OF THE PARTIES."  SEE TEXTILE WORKERS V.
LINCOLN MILLS, 353 U.S. 448. 

FN2  NOTE 1, SUPRA. 

FN3  IN SEC. 8(D) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY
THE 1947 ACT, 29 U.S.C.  SEC. 158(D), CONGRESS INDEED PROVIDED THAT
WHERE THERE WAS A COLLECTIVE AGREEMENT FOR A FIXED TERM THE DUTY TO
BARGAIN DID NOT REQUIRE EITHER PARTY "TO DISCUSS OR AGREE TO ANY
MODIFICATION OF THE TERMS AND CONDITIONS CONTAINED IN" THE CONTRACT. 
AND SEE LABOR BOARD V. SANDS MFG. CO., 306 U.S. 332. 

FN4  COMPLETE EFFECTUATION OF THE FEDERAL POLICY IS ACHIEVED WHEN THE
AGREEMENT CONTAINS BOTH AN ARBITRATION PROVISION FOR ALL UNRESOLVED
GRIEVANCES AND AN ABSOLUTE PROHIBITION OF STRIKES, THE ARBITRATION
AGREEMENT BEING THE "QUID PRO QUO" FOR THE AGREEMENT NOT TO STRIKE. 
TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 455. 

FN5  "CONTRACTS WHICH BAN STRIKES OFTEN PROVIDE FOR LIFTING THE BAN
UNDER CERTAIN CONDITIONS.  UNCONDITIONAL PLEDGES AGAINST STRIKES ARE,
HOWEVER, SOMEWHAT MORE FREQUENT THAN CONDITIONAL ONES.  WHERE
CONDITIONS ARE ATTACHED TO NO-STRIKE PLEDGES, ONE OR BOTH OF TWO
APPROACHES MAY BE USED: CERTAIN SUBJECTS MAY BE EXEMPTED FROM THE SCOPE
OF THE PLEDGE, OR THE PLEDGE MAY BE LIFTED AFTER CERTAIN PROCEDURES ARE
FOLLOWED BY THE UNION.  (SIMILAR QUALIFICATIONS MAY BE MADE IN PLEDGES
AGAINST LOCKOUTS.) 

"MOST FREQUENT CONDITIONS FOR LIFTING NO-STRIKE PLEDGES ARE:  (1) THE
OCCURRENCE OF A DEADLOCK IN WAGE REOPENING NEGOTIATIONS; AND (2)
VIOLATION OF THE CONTRACT, ESPECIALLY NON-COMPLIANCE WITH THE GRIEVANCE
PROCEDURE AND FAILURE TO ABIDE BY AN ARBITRATION AWARD. 

"NO-STRIKE PLEDGES MAY ALSO BE LIFTED AFTER COMPLIANCE WITH SPECIFIED
PROCEDURES.  SOME CONTRACTS PERMIT THE UNION TO STRIKE AFTER THE
GRIEVANCE PROCEDURE HAS BEEN EXHAUSTED WITHOUT A SETTLEMENT, AND WHERE
ARBITRATION IS NOT PRESCRIBED AS THE FINAL RECOURSE.  OTHER CONTRACTS
PERMIT A STRIKE IF MEDIATION EFFORTS FAIL, OR AFTER A SPECIFIED COOLING
OFF PERIOD."  COLLECTIVE BARGAINING, NEGOTIATIONS AND CONTRACTS, BUREAU
OF NATIONAL AFFAIRS, INC., 77:101. 

FN6  COX, REFLECTIONS UPON LABOR ARBITRATION, 72 HARV. L. REV. 1482,
1498-1499 (1959). 

FN7  IT IS CLEAR THAT UNDER BOTH THE AGREEMENT IN THIS CASE AND THAT
INVOLVED IN AMERICAN MANUFACTURING CO., ANTE, P. 564, THE QUESTION OF
ARBITRABILITY IS FOR THE COURTS TO DECIDE.  CF. COX, REFLECTIONS UPON
LABOR ARBITRATION, 72 HARV. L. REV. 1482, 1508-1509.  WHERE THE
ASSERTION BY THE CLAIMANT IS THAT THE PARTIES EXCLUDED FROM COURT
DETERMINATION NOT MERELY THE DECISION OF THE MERITS OF THE GRIEVANCE
BUT ALSO THE QUESTION OF ITS ARBITRABILITY, VESTING POWER TO MAKE BOTH
DECISIONS IN THE ARBITRATOR, THE CLAIMANT MUST BEAR THE BURDEN OF A
CLEAR DEMONSTRATION OF THAT PURPOSE. 

FN8  SEE CELANESE CORP. OF AMERICA, 33 LAB.  ARB.  REP. 925, 941
(1959), WHERE THE ARBITER IN A GRIEVANCE GROWING OUT OF CONTRACTING OUT
WORK SAID: 

"IN MY RESEARCH I HAVE LOCATED 64 PUBLISHED DECISIONS WHICH HAVE BEEN
CONCERNED WITH THIS ISSUE COVERING A WIDE RANGE OF FACTUAL SITUATIONS
BUT ALL OF THEM WITH THE COMMON CHARACTERISTIC - I.E., THE CONTRACTING
OUT OF WORK INVOLVED OCCURRED UNDER AN AGREEMENT THAT CONTAINED NO
PROVISION THAT SPECIFICALLY MENTIONED CONTRACTING-OUT OF WORK." 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR OPINION OF MR. JUSTICE BRENNAN, JOINED BY MR. JUSTICE FRANKFURTER
AND MR. JUSTICE HARLAN, SEE ANTE, P. 569. 

MR. JUSTICE WHITTAKER, DISSENTING. 

UNTIL TODAY, I HAVE UNDERSTOOD IT TO BE THE UNQUESTIONED LAW, AS THIS
COURT HAS CONSISTENTLY HELD, THAT ARBITRATORS ARE PRIVATE JUDGES CHOSEN
BY THE PARTIES TO DECIDE PARTICULAR MATTERS SPECIFICALLY SUBMITTED;
(FN1) THAT THE CONTRACT UNDER WHICH MATTERS ARE SUBMITTED TO
ARBITRATORS IS AT ONCE THE SOURCE AND LIMIT OF THEIR AUTHORITY AND
POWER; (FN2) AND THAT THEIR POWER TO DECIDE ISSUES WITH FINALITY, THUS
OUSTING THE NORMAL FUNCTIONS OF THE COURTS, MUST REST UPON A CLEAR,
DEFINITIVE AGREEMENT OF THE PARTIES, AS SUCH POWERS CAN NEVER BE
IMPLIED.  UNITED STATES V. MOORMAN, 338 U.S. 457, 462; (FN3) MERCANTILE
TRUST CO. V. HENSEY, 205 U.S. 298, 309.  (FN4)  SEE ALSO FERNANDEX &
HNOS.  V. RICKERT RICE MILLS, 119 F.2D 809, 815 (C.A. 1ST CIR.); (FN5)
MARCHANT V. MEAD-MORRISON MFG. CO., 252 N.Y. 284, 299, 169 N.E. 386,
391; (FN6) CONTINENTAL MILLING & FEED CO. V. DOUGHNUT CORP., 186 MD.
669, 676, 48 A.2D 447, 450; (FN7) JACOB V. WEISSER, 207 PA. 484, 489,
56 A. 1065, 1067.  (FN8)  I BELIEVE THAT THE COURT TODAY DEPARTS FROM
THE ESTABLISHED PRINCIPLES ANNOUNCED IN THESE DECISIONS. 

HERE, THE EMPLOYER OPERATES A SHOP FOR THE NORMAL MAINTENANCE OF ITS
BARGES, BUT IT IS NOT EQUIPPED TO MAKE MAJOR REPAIRS, AND ACCORDINGLY
THE EMPLOYER HAS, FROM THE BEGINNING OF ITS OPERATIONS MORE THAN 19
YEARS AGO, CONTRACTED OUT ITS MAJOR REPAIR WORK.  DURING MOST, IF NOT
ALL, OF THIS TIME THE UNION HAS REPRESENTED THE EMPLOYEES IN THAT
UNIT.  THE DISTRICT COURT FOUND THAT "THROUGHOUT THE SUCCESSIVE LABOR
AGREEMENTS BETWEEN THESE PARTIES, INCLUDING THE PRESENT ONE,  ... THE
UNION HAS UNSUCCESSFULLY SOUGHT TO NEGOTIATE CHANGES IN THE LABOR
CONTRACTS, AND PARTICULARLY DURING THE NEGOTIATION OF THE PRESENT LABOR
AGREEMENT,  ...  WHICH WOULD HAVE LIMITED THE RIGHT OF THE EMPLOYER TO
CONTINUE THE PRACTICE OF CONTRACTING OUT SUCH WORK."  168 F. SUPP. 702,
704-705. 

THE LABOR AGREEMENT INVOLVED HERE PROVIDES FOR ARBITRATION OF
DISPUTES RESPECTING THE INTERPRETATION AND APPLICATION OF THE AGREEMENT
AND, ARGUABLY, ALSO SOME OTHER THINGS.  BUT THE FIRST PARAGRAPH OF THE
ARBITRATION SECTION SAYS:  "MATTERS WHICH ARE STRICTLY A FUNCTION OF
MANAGEMENT SHALL NOT BE SUBJECT TO ARBITRATION UNDER THIS SECTION." 
ALTHOUGH ACQUIESCING FOR 19 YEARS IN THE EMPLOYER'S INTERPRETATION THAT
CONTRACTING OUT WORK WAS "STRICTLY A FUNCTION OF MANAGEMENT," AND
HAVING REPEATEDLY TRIED - PARTICULARLY IN THE NEGOTIATION OF THE
AGREEMENT INVOLVED HERE - BUT UNSUCCESSFULLY, TO INDUCE THE EMPLOYER TO
AGREE TO A COVENANT THAT WOULD PROHIBIT IT FROM CONTRACTING OUT WORK,
THE UNION, AFTER HAVING AGREED TO AND SIGNED THE CONTRACT INVOLVED,
PRESENTED A "GRIEVANCE" ON THE GROUND THAT THE EMPLOYER'S CONTRACTING
OUT WORK, AT A TIME WHEN SOME EMPLOYEES IN THE UNIT WERE LAID OFF FOR
LACK OF WORK, CONSTITUTED A PARTIAL "LOCKOUT" OF EMPLOYEES IN VIOLATION
OF THE ANTILOCKOUT PROVISION OF THE AGREEMENT. 

BEING UNABLE TO PERSUADE THE EMPLOYER TO AGREE TO CEASE CONTRACTING
OUT WORK OR TO AGREE TO ARBITRATE THE "GRIEVANCE," THE UNION BROUGHT
THIS ACTION IN THE DISTRICT COURT, UNDER SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT, 29 U.S.C. SEC. 185, FOR A DECREE COMPELLING
THE EMPLOYER TO SUBMIT THE "GRIEVANCE" TO ARBITRATION.  THE DISTRICT
COURT, HOLDING THAT THE CONTRACTING OUT OF WORK WAS, AND OVER A LONG
COURSE OF DEALINGS HAD BEEN INTERPRETED AND UNDERSTOOD BY THE PARTIES
TO BE, "STRICTLY A FUNCTION OF MANAGEMENT," AND WAS THEREFORE
SPECIFICALLY EXCLUDED FROM ARBITRATION BY THE TERMS OF THE CONTRACT,
DENIED THE RELIEF PRAYED, 168 F. SUPP. 702.  THE COURT OF APPEALS
AFFIRMED, 269 F.2D 633, AND WE GRANTED CERTIORARI.  361 U.S. 912. 

THE COURT NOW REVERSES THE JUDGMENT OF THE COURT OF APPEALS.  IT
HOLDS THAT THE ARBITRATOR'S SOURCE OF LAW IS "NOT CONFINED TO THE
EXPRESS PROVISIONS OF THE CONTRACT," THAT ARBITRATION SHOULD BE ORDERED
"UNLESS IT MAY BE SAID WITH POSITIVE ASSURANCE THAT THE ARBITRATION
CLAUSE IS NOT SUSCEPTIBLE OF AN INTERPRETATION THAT COVERS THE ASSERTED
DISPUTE," THAT "DOUBTS OF ARBITRABILITY SHOULD BE RESOLVED IN FAVOR OF
COVERAGE," AND THAT WHEN, AS HERE, "AN ABSOLUTE NO-STRIKE CLAUSE IS
INCLUDED IN THE AGREEMENT, THEN  ...  EVERYTHING THAT MANAGEMENT DOES
IS SUBJECT TO ARBITRATION."  I UNDERSTAND THE COURT THUS TO HOLD THAT
THE ARBITRATORS ARE NOT CONFINED TO THE EXPRESS PROVISIONS OF THE
CONTRACT, THAT ARBITRATION IS TO BE ORDERED UNLESS IT MAY BE SAID WITH
POSITIVE ASSURANCE THAT ARBITRATION OF A PARTICULAR DISPUTE IS EXCLUDED
BY THE CONTRACT, THAT DOUBTS OF ARBITRABILITY ARE TO BE RESOLVED IN
FAVOR OF ARBITRATION, AND THAT WHEN, AS HERE, THE CONTRACT CONTAINS A
NO-STRIKE CLAUSE, EVERYTHING THAT MANAGEMENT DOES IS SUBJECT TO
ARBITRATION. 

THIS IS AN ENTIRELY NEW AND STRANGE DOCTRINE TO ME.  I SUGGEST, WITH
DEFERENCE, THAT IT DEPARTS FROM BOTH THE CONTRACT OF THE PARTIES AND
THE CONTROLLING DECISIONS OF THIS COURT.  I FIND NOTHING IN THE
CONTRACT THAT PURPORTS TO CONFER UPON ARBITRATORS ANY SUCH GENERAL
BREADTH OF PRIVATE JUDICIAL POWER.  THE COURT CITES NO LEGISLATIVE OR
JUDICIAL AUTHORITY THAT CREATES FOR OR GIVES TO ARBITRATORS SUCH BROAD
GENERAL POWERS.  AND I RESPECTFULLY SUBMIT THAT TODAY'S DECISION CANNOT
BE SQUARED WITH THE STATEMENT OF JUDGE, LATER MR. JUSTICE, CARDOZO IN
MARCHANT THAT "NO ONE IS UNDER A DUTY TO RESORT TO THESE CONVENTIONAL
TRIBUNALS, HOWEVER HELPFUL THEIR PROCESSES, EXCEPT TO THE EXTENT THAT
HE HAS SIGNIFIED HIS WILLINGNESS.  OUR OWN FAVOR OR DISFAVOR OF THE
CAUSE OF ARBITRATION IS NOT TO COUNT AS A FACTOR IN THE APPRAISAL OF
THE THOUGHT OF OTHERS", 252 N.Y., AT 299, 169 N.E., AT 391; NOR WITH
HIS STATEMENT IN THAT CASE THAT "THE QUESTION IS ONE OF INTENTION, TO
BE ASCERTAINED BY THE SAME TESTS THAT ARE APPLIED TO CONTRACTS
GENERALLY," ID.; NOR WITH THIS COURT'S STATEMENT IN MOORMAN, "THAT THE
INTENTION OF THE PARTIES TO SUBMIT THEIR CONTRACTUAL DISPUTES TO FINAL
DETERMINATION OUTSIDE THE COURTS SHOULD BE MADE MANIFEST BY PLAIN
LANGUAGE", 338 U.S., AT 462; NOR WITH THIS COURT'S STATEMENT IN HENSEY
THAT:  "TO MAKE SUCH AN ARBITRATOR'S CERTIFICATE CONCLUSIVE REQUIRES
PLAIN LANGUAGE IN THE CONTRACT.  IT IS NOT TO BE IMPLIED."  205 U.S.,
AT 309.  "A PARTY IS NEVER REQUIRED TO SUBMIT TO ARBITRATION ANY
QUESTION WHICH HE HAS NOT AGREED SO TO SUBMIT, AND CONTRACTS PROVIDING
FOR ARBITRATION WILL BE CAREFULLY CONSTRUED IN ORDER NOT TO FORCE A
PARTY TO SUBMIT TO ARBITRATION A QUESTION WHICH HE DID NOT INTEND TO BE
SUBMITTED."  FERNANDEZ & HNOS.  V. RICKERT RICE MILLS, SUPRA, 119 F.2D,
AT 815 (C.A. 1ST CIR.).    WITH RESPECT, I SUBMIT THAT THERE IS NOTHING
IN THE CONTRACT HERE TO INDICATE THAT THE EMPLOYER "SIGNIFIED ITS
WILLINGNESS" (MARCHANT, SUPRA, AT 299) TO SUBMIT TO ARBITRATORS WHETHER
IT MUST CEASE CONTRACTING OUT WORK.  CERTAINLY NO SUCH INTENTION IS
"MADE MANIFEST BY PLAIN LANGUAGE" (MOORMAN, SUPRA, AT 462), AS THE LAW
"REQUIRES," BECAUSE SUCH CONSENT "IS NOT TO BE IMPLIED."  HENSEY,
SUPRA, AT 309.)  TO THE CONTRARY, THE PARTIES BY THEIR CONDUCT OVER
MANY YEARS INTERPRETED THE CONTRACTING OUT OF MAJOR REPAIR WORK TO BE
"STRICTLY A FUNCTION OF MANAGEMENT," AND IF, AS THE CONCURRRING OPINION
SUGGESTS, THE WORDS OF THE CONTRACT CAN "BE UNDERSTOOD ONLY BY
REFERENCE TO THE BACKGROUND WHICH GAVE RISE TO THEIR INCLUSION," THEN
THE INTERPRETATION GIVEN BY THE PARTIES OVER 19 YEARS TO THE PHRASE
"MATTERS WHICH ARE STRICTLY A FUNCTION OF MANAGEMENT" SHOULD LOGICALLY
HAVE SOME SIGNIFICANCE HERE.  BY THEIR CONTRACT, THE PARTIES AGREED
THAT "MATTERS WHICH ARE STRICTLY A FUNCTION OF MANAGEMENT SHALL NOT BE
SUBJECT TO ARBITRATION."  THE UNION OVER THE COURSE OF MANY YEARS
REPEATEDLY TRIED TO INDUCE THE EMPLOYER TO AGREE TO A COVENANT
PROHIBITING THE CONTRACTING OUT OF WORK, BUT WAS NEVER SUCCESSFUL.  THE
UNION AGAIN MADE SUCH AN EFFORT IN NEGOTIATING THE VERY CONTRACT
INVOLVED HERE, AND, FAILING OF SUCCESS, SIGNED THE CONTRACT, KNOWING,
OF COURSE, THAT IT DID NOT CONTAIN ANY SUCH COVENANT, BUT THAT, TO THE
CONTRARY, IT CONTAINED, JUST AS HAD THE FORMER CONTRACTS, A COVENANT
THAT "MATTERS WHICH ARE STRICTLY A FUNCTION OF MANAGEMENT SHALL NOT BE
SUBJECT TO ARBITRATION."  DOES NOT THIS SHOW THAT, INSTEAD OF
SIGNIFYING A WILLINGNESS TO SUBMIT TO ARBITRATION THE MATTER OF WHETHER
THE EMPLOYER MIGHT CONTINUE TO CONTRACT OUT WORK, THE PARTIES FAIRLY
AGREED TO EXCLUDE AT LEAST THAT MATTER FROM ARBITRATION?  SURELY IT
CANNOT BE SAID THAT THE PARTIES AGREED TO SUCH A SUBMISSION BY ANY
"PLAIN LANGUAGE."  MOORMAN, SUPRA, AT 462, AND HENSEY, SUPRA, AT 309. 
DOES NOT THEN THE COURT'S OPINION COMPEL THE EMPLOYER "TO SUBMIT TO
ARBITRATION A QUESTION WHICH IT HAS NOT AGREED SO TO SUBMIT"? 
(FERNANDEX & HNOS., SUPRA, AT 815). 

SURELY THE QUESTION WHETHER A PARTICULAR SUBJECT OR CLASS OF SUBJECTS
IS OR IS NOT MADE ARBITRABLE BY A CONTRACT IS A JUDICIAL QUESTION, AND
IF, AS THE CONCURRING OPINION SUGGESTS, "THE COURT MAY CONCLUDE THAT
THE CONTRACT COMMITS TO ARBITRATION ANY SUBJECT OR CLASS OF SUBJECTS,"
IT MAY LIKEWISE CONCLUDE THAT THE CONTRACT DOES NOT COMMIT SUCH SUBJECT
OR CLASS OF SUBJECTS TO ARBITRATION, AND "WITH THAT FINDING THE COURT
WILL HAVE EXHAUSTED ITS FUNCTION" NO MORE NOR LESS BY DENYING
ARBITRATION THAN BY ORDERING IT.  HERE THE DISTRICT COURT FOUND, AND
THE COURT OF APPEALS APPROVED ITS FINDING, THAT BY THE TERMS OF THE
CONTRACT, AS INTERPRETED BY THE PARTIES OVER 19 YEARS, THE CONTRACTING
OUT OF WORK WAS "STRICTLY A FUNCTION OF MANAGEMENT" AND "NOT SUBJECT TO
ARBITRATION."  THAT FINDING, I THINK, SHOULD BE ACCEPTED HERE. 
ACCEPTANCE OF IT REQUIRES AFFIRMANCE OF THE JUDGMENT. 

I AGREE WITH THE COURT THAT COURTS HAVE NO PROPER CONCERN WITH THE
"MERITS" OF CLAIMS WHICH BY CONTRACT THE PARTIES HAVE AGREED TO SUBMIT
TO THE EXCLUSIVE JURISDICTION OF ARBITRATORS.  BUT THE QUESTION IS ONE
OF JURISDICTION.  NEITHER MAY ENTRENCH UPON THE JURISDICTION OF THE
OTHER.  THE TEST IS:  DID THE PARTIES IN THEIR CONTRACT "MANIFEST BY
PLAIN LANGUAGE" (MOORMAN, SUPRA, AT 462) THEIR WILLINGNESS TO SUBMIT
THE ISSUE IN CONTROVERSY TO ARBITRATORS?  IF THEY DID, THEN THE
ARBITRATORS HAVE EXCLUSIVE JURISDICTION OF IT, AND THE COURTS, ABSENT
FRAUD OR THE LIKE, MUST RESPECT THAT EXCLUSIVE JURISDICTION AND CANNOT
INTERFERE.  BUT IF THEY DID NOT, THEN THE COURTS MUST EXERCISE THEIR
JURISDICTION, WHEN PROPERLY INVOKED, TO PROTECT THE CITIZEN AGAINST THE
ATTEMPTED USE BY ARBITRATORS OF PRETENDED POWERS ACTUALLY NEVER
CONFERRED.  THAT QUESTION ALWAYS IS, AND FROM ITS VERY NATURE MUST BE,
A JUDICIAL ONE.  SUCH WAS THE QUESTION PRESENTED TO THE DISTRICT COURT
AND THE COURT OF APPEALS HERE.  THEY FOUND THE JURISDICTIONAL FACTS,
PROPERLY APPLIED THE SETTLED LAW TO THOSE FACTS, AND CORRECTLY DECIDED
THE CASE.  I WOULD THEREFORE AFFIRM THE JUDGMENT. 

FN1  "ARBITRATORS ARE JUDGES CHOSEN BY THE PARTIES TO DECIDE THE
MATTERS SUBMITTED TO THEM."  BURCHELL V. MARSH, 17 HOW.  344, 349. 

FN2  "THE AGREEMENT UNDER WHICH THE ARBITRATORS WERE SELECTED WAS AT
ONCE THE SOURCE AND LIMIT OF THEIR AUTHORITY, AND THE AWARD, TO BE
BINDING, MUST, IN SUBSTANCE AND FORM, CONFORM TO THE SUBMISSION." 
CONTINENTAL INS. CO. V. GARRETT, 125 F. 589, 590 (C.A. 6TH CIR.) -
OPINION BY JUDGE, LATER MR. JUSTICE, LURTON. 

FN3  "IT IS TRUE THAT THE INTENTION OF PARTIES TO SUBMIT THEIR
CONTRACTUAL DISPUTES TO FINAL DETERMINATION OUTSIDE THE COURTS SHOULD
BE MADE MANIFEST BY PLAIN LANGUAGE."  UNITED STATES V. MOORMAN, 338
U.S. 457, 462. 

FN4  "TO MAKE SUCH (AN ARBITRATOR'S) CERTIFICATE CONCLUSIVE REQUIRES
PLAIN LANGUAGE IN THE CONTRACT.  IT IS NOT TO BE IMPLIED."  MERCANTILE
TRUST CO. V. HENSEY, 205 U.S. 298, 309. 

FN5  "A PARTY IS NEVER REQUIRED TO SUBMIT TO ARBITRATION ANY QUESTION
WHICH HE HAS NOT AGREED SO TO SUBMIT, AND CONTRACTS PROVIDING FOR
ARBITRATION WILL BE CAREFULLY CONSTRUED IN ORDER NOT TO FORCE A PARTY
TO SUBMIT TO ARBITRATION A QUESTION WHICH HE DID NOT INTEND TO BE
SUBMITTED."  FERNANDEZ & HNOS.  V. RICKERT RICE MILLS, 119 F.2D 809,
815 (C.A. 1ST CIR.). 

FN6  IN THIS LEADING CASE, JUDGE, LATER MR. JUSTICE, CARDOZO SAID: 

"THE QUESTION IS ONE OF INTENTION, TO BE ASCERTAINED BY THE SAME
TESTS THAT ARE APPLIED TO CONTRACTS GENERALLY  ...  .  NO ONE IS UNDER
A DUTY TO RESORT TO THESE CONVENTIONAL TRIBUNALS, HOWEVER HELPFUL THEIR
PROCESSES, EXCEPT TO THE EXTENT THAT HE HAS SIGNIFIED HIS WILLINGNESS. 
OUR OWN FAVOR OR DISFAVOR OF THE CAUSE OF ARBITRATION IS NOT TO COUNT
AS A FACTOR IN THE APPRAISAL OF THE THOUGHT OF OTHERS."  MARCHANT V.
MEAD-MORRISON MFG. CO., 252 N.Y. 284, 299, 169 N.E.  386, 391. 

FN7  IN THIS CASE, THE COURT, AFTER QUOTING JUDGE CARDOZO'S LANGUAGE
IN MARCHANT, SUPRA, SAYING THAT "THE QUESTION IS ONE OF INTENTION,"
SAID: 

"SOUND POLICY DEMANDS THAT THE TERMS OF AN ARBITRATION AGREEMENT MUST
NOT BE STRAINED TO DISCOVER POWER TO PASS UPON MATTERS IN DISPUTE, BUT
THE TERMS MUST BE CLEAR AND UNMISTAKABLE TO OUST THE JURISDICTION OF
THE COURT, FOR TRIAL BY JURY CANNOT BE TAKEN AWAY IN ANY CASE MERELY BY
IMPLICATION."  CONTINENTAL MILLING & FEED CO. V. DOUGHNUT CORP., 186
MD. 669, 676, 48 A. 447, 450. 

FN8  "BUT, UNDER ANY CIRCUMSTANCES, BEFORE THE DECISION OF AN
ARBITRATOR CAN BE HELD FINAL AND CONCLUSIVE, IT MUST APPEAR, AS WAS
SAID IN CHANDLEY BROS. V. CAMBRIDGE SPRINGS, 200 PA.  230, 49 ATL. 772,
THAT POWER TO PASS UPON THE SUBJECT-MATTER, IS CLEARLY GIVEN TO HIM. 
'THE TERMS OF THE AGREEMENT ARE NOT TO BE STRAINED TO DISCOVER IT.
THEY MUST BE CLEAR AND UNMISTAKABLE TO OUST THE JURISDICTION OF THE
COURTS; FOR TRIAL BY JURY CANNOT BE TAKEN AWAY BY IMPLICATION MERELY IN
ANY CASE.'"  JACOB V. WEISSER, 207 PA. 484, 489, 56 A. 1065, 1067. 
..END :









UNITED STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP. 363 U.S.
593 


NO. 538.  ARGUED APRIL 28, 1960.  - DECIDED JUNE 20, 1960.  - 269 F.2D
327, REVERSED IN PART. 


EMPLOYEES WERE DISCHARGED DURING THE TERM OF A COLLECTIVE BARGAINING
AGREEMENT CONTAINING A PROVISION FOR ARBITRATION OF DISPUTES, INCLUDING
DIFFERENCES "AS TO THE MEANING AND APPLICATION" OF THE AGREEMENT, AND A
PROVISION FOR REINSTATEMENT WITH BACK PAY OF EMPLOYEES DISCHARGED IN
VIOLATION OF THE AGREEMENT.  THE DISCHARGES WERE ARBITRATED AFTER THE
AGREEMENT HAD EXPIRED, AND THE ARBITRATOR FOUND THAT THEY WERE IN
VIOLATION OF THE AGREEMENT AND THAT THE AGREEMENT REQUIRED
REINSTATEMENT WITH BACK PAY, MINUS PAY FOR A TEN-DAY SUSPENSION AND
SUCH SUMS AS THE EMPLOYEES HAD RECEIVED FROM OTHER EMPLOYMENT. 
RESPONDENT REFUSED TO COMPLY WITH THE AWARD, AND THE DISTRICT COURT
DIRECTED IT TO DO SO.  THE COURT OF APPEALS HELD THAT (A) FAILURE OF
THE AWARD TO SPECIFY THE AMOUNTS TO BE DEDUCTED FROM THE BACK PAY
RENDERED THE AWARD UNENFORCEABLE, THOUGH THAT DEFECT COULD BE REMEDIED
BY REQUIRING THE PARTIES TO COMPLETE THE ARBITRATION, (B) AN AWARD FOR
BACK PAY SUBSEQUENT TO THE DATE OF EXPIRATION OF THE COLLECTIVE
BARGAINING AGREEMENT COULD NOT BE ENFORCED, AND (C) THE REQUIREMENT FOR
REINSTATEMENT OF THE DISCHARGED EMPLOYEES WAS UNENFORCEABLE BECAUSE THE
COLLECTIVE BARGAINING AGREEMENT HAD EXPIRED.  HELD:  THE JUDGMENT OF
THE DISTRICT COURT SHOULD HAVE BEEN AFFIRMED WITH A MODIFICATION
REQUIRING THE SPECIFIC AMOUNTS DUE THE EMPLOYEES TO BE DEFINITELY
DETERMINED BY ARBITRATION.  PP. 594-599. 

(A)  FEDERAL COURTS SHOULD DECLINE TO REVIEW THE MERITS OF
ARBITRATION AWARDS UNDER COLLECTIVE BARGAINING AGREEMENTS. 
STEELWORKERS V. WARRIOR & GULF NAVIGATION CO., ANTE, P. 574.  P. 596. 

(B)  THE OPINION OF THE ARBITRATOR IN THIS CASE, AS IT BEARS UPON THE
AWARD OF BACK PAY BEYOND THE DATE OF THE AGREEMENT'S EXPIRATION AND
REINSTATEMENT, IS AMBIGUOUS; BUT MERE AMBIGUITY IN THE OPINION
ACCOMPANYING AN AWARD IS NOT A REASON FOR REFUSING TO ENFORCE THE
AWARD, EVEN WHEN IT PERMITS THE INFERENCE THAT THE ARBITRATOR MAY HAVE
EXCEEDED HIS AUTHORITY.  PP. 597-598. 

(C)  THE QUESTION OF INTERPRETATION OF THE COLLECTIVE BARGAINING
AGREEMENT IS A QUESTION FOR THE ARBITRATOR, AND THE COURTS HAVE NO
BUSINESS OVERRULING HIS CONSTRUCTION OF THE CONTRACT MERELY BECAUSE
THEIR INTERPRETATION OF IT IS DIFFERENT FROM HIS.  PP. 598-599. 

(D)  THE COURT OF APPEALS ERRED IN HOLDING THAT AN AWARD FOR BACK PAY
SUBSEQUENT TO THE DATE OF EXPIRATION OF THE COLLECTIVE BARGAINING
AGREEMENT COULD NOT BE ENFORCED AND THAT THE REQUIREMENT FOR
REINSTATEMENT OF THE DISCHARGED EMPLOYEES WAS UNENFORCEABLE BECAUSE THE
COLLECTIVE BARGAINING AGREEMENT HAD EXPIRED.  PP. 596, 599. 

(E)  THE JUDGMENT OF THE DISTRICT COURT ORDERING RESPONDENT TO COMPLY
WITH THE ARBITRATOR'S AWARD SHOULD BE MODIFIED SO THAT THE AMOUNT DUE
THE EMPLOYEES MAY BE DEFINITELY DETERMINED BY ARBITRATION.   P. 599. 

UNITED STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BRENNAN. 

PETITIONER UNION AND RESPONDENT DURING THE PERIOD RELEVANT HERE HAD A
COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDED THAT ANY DIFFERENCES "AS
TO THE MEANING AND APPLICATION" OF THE AGREEMENT SHOULD BE SUBMITTED TO
ARBITRATION AND THAT THE ARBITRATOR'S DECISION "SHALL BE FINAL AND
BINDING ON THE PARTIES."  SPECIAL PROVISIONS WERE INCLUDED CONCERNING
THE SUSPENSION AND DISCHARGE OF EMPLOYEES.  THE AGREEMENT STATED: 

"SHOULD IT BE DETERMINED BY THE COMPANY OR BY AN ARBITRATOR IN
ACCORDANCE WITH THE GRIEVANCE PROCEDURE THAT THE EMPLOYEE HAS BEEN
SUSPENDED UNJUSTLY OR DISCHARGED IN VIOLATION OF THE PROVISIONS OF THIS
AGREEMENT, THE COMPANY SHALL REINSTATE THE EMPLOYEE AND PAY FULL
COMPENSATION AT THE EMPLOYEE'S REGULAR RATE OF PAY FOR THE TIME LOST." 

THE AGREEMENT ALSO PROVIDED: 

"  ...  IT IS UNDERSTOOD AND AGREED THAT NEITHER PARTY WILL INSTITUTE
CIVIL SUITS OR LEGAL PROCEEDINGS AGAINST THE OTHER FOR ALLEGED
VIOLATION OF ANY OF THE PROVISIONS OF THIS LABOR CONTRACT; INSTEAD ALL
DISPUTES WILL BE SETTLED IN THE MANNER OUTLINED IN THIS ARTICLE III -
ADJUSTMENT OF GRIEVANCES." 

A GROUP OF EMPLOYEES LEFT THEIR JOBS IN PROTEST AGAINST THE DISCHARGE
OF ONE EMPLOYEE.  A UNION OFFICIAL ADVISED THEM AT ONCE TO RETURN TO
WORK.  AN OFFICIAL OF RESPONDENT AT THEIR REQUEST GAVE THEM PERMISSION
AND THEN RESCINDED IT.  THE NEXT DAY THEY WERE TOLD THEY DID NOT HAVE A
JOB ANY MORE "UNTIL THIS THING WAS SETTLED ONE WAY OR THE OTHER." 

A GRIEVANCE WAS FILED; AND WHEN RESPONDENT FINALLY REFUSED TO
ARBITRATE, THIS SUIT WAS BROUGHT FOR SPECIFIC ENFORCEMENT OF THE
ARBITRATION PROVISIONS OF THE AGREEMENT.  THE DISTRICT COURT ORDERED
ARBITRATION.  THE ARBITRATOR FOUND THAT THE DISCHARGE OF THE MEN WAS
NOT JUSTIFIED, THOUGH THEIR CONDUCT, HE SAID, WAS IMPROPER.  IN HIS
VIEW THE FACTS WARRANTED AT MOST A SUSPENSION OF THE MEN FOR 10 DAYS
EACH.  AFTER THEIR DISCHARGE AND BEFORE THE ARBITRATION AWARD THE
COLLECTIVE BARGAINING AGREEMENT HAD EXPIRED.  THE UNION, HOWEVER,
CONTINUED TO REPRESENT THE WORKERS AT THE PLANT.  THE ARBITRATOR
REJECTED THE CONTENTION THAT EXPIRATION OF THE AGREEMENT BARRED
REINSTATEMENT OF THE EMPLOYEES.  HE HELD THAT THE PROVISION OF THE
AGREEMENT ABOVE QUOTED IMPOSED AN UNCONDITIONAL OBLIGATION ON THE
EMPLOYER.  HE AWARDED REINSTATEMENT WITH BACK PAY, MINUS PAY FOR A 10
DAY SUSPENSION AND SUCH SUMS AS THESE EMPLOYEES RECEIVED FROM OTHER
EMPLOYMENT. 

RESPONDENT REFUSED TO COMPLY WITH THE AWARD.  PETITIONER MOVED THE
DISTRICT COURT FOR ENFORCEMENT.  THE DISTRICT COURT DIRECTED RESPONDENT
TO COMPLY.  168 F. SUPP. 308.  THE COURT OF APPEALS, WHILE AGREEING
THAT THE DISTRICT COURT HAD JURISDICTION TO ENFORCE AN ARBITRATION
AWARD UNDER A COLLECTIVE BARGAINING AGREEMENT, (FN1) HELD THAT THE
FAILURE OF THE AWARD TO SPECIFY THE AMOUNTS TO BE DEDUCTED FROM THE
BACK PAY RENDERED THE AWARD UNENFORCEABLE.  THAT DEFECT, IT AGREED,
COULD BE REMEDIED BY REQUIRING THE PARTIES TO COMPLETE THE
ARBITRATION.  IT WENT ON TO HOLD, HOWEVER, THAT AN AWARD FOR BACK PAY
SUBSEQUENT TO THE DATE OF TERMINATION OF THE COLLECTIVE BARGAINING
AGREEMENT COULD NOT BE ENFORCED.  IT ALSO HELD THAT THE REQUIREMENT FOR
REINSTATEMENT OF THE DISCHARGED EMPLOYEES WAS LIKEWISE UNENFORCEABLE
BECAUSE THE COLLECTIVE BARGAINING AGREEMENT HAD EXPIRED.  269 F.2D
327.  WE GRANTED CERTIORARI.  361 U.S. 929. 

THE REFUSAL OF COURTS TO REVIEW THE MERITS OF AN ARBITRATION AWARD IS
THE PROPER APPROACH TO ARBITRATION UNDER COLLECTIVE BARGAINING
AGREEMENTS.  THE FEDERAL POLICY OF SETTLING LABOR DISPUTES BY
ARBITRATION WOULD BE UNDERMINED IF COURTS HAD THE FINAL SAY ON THE
MERITS OF THE AWARDS.  AS WE STATED IN UNITED STEELWORKERS OF AMERICA
V. WARRIOR & GULF NAVIGATION CO., ANTE, P. 574, DECIDED THIS DAY, THE
ARBITRATORS UNDER THESE COLLECTIVE AGREEMENTS ARE INDISPENSABLE
AGENCIES IN A CONTINUOUS COLLECTIVE BARGAINING PROCESS.  THEY SIT TO
SETTLE DISPUTES AT THE PLANT LEVEL - DISPUTES THAT REQUIRE FOR THEIR
SOLUTION KNOWLEDGE OF THE CUSTOM AND PRACTICES OF A PARTICULAR FACTORY
OR OF A PARTICULAR INDUSTRY AS REFLECTED IN PARTICULAR AGREEMENTS. 
(FN2) 

WHEN AN ARBITRATOR IS COMMISSIONED TO INTERPRET AND APPLY THE
COLLECTIVE BARGAINING AGREEMENT, HE IS TO BRING HIS INFORMED JUDGMENT
TO BEAR IN ORDER TO REACH A FAIR SOLUTION OF A PROBLEM.  THIS IS
ESPECIALLY TRUE WHEN IT COMES TO FORMULATING REMEDIES.  THERE THE NEED
IS FOR FLEXIBILITY IN MEETING A WIDE VARIETY OF SITUATIONS.  THE
DRAFTSMEN MAY NEVER HAVE THOUGHT OF WHAT SPECIFIC REMEDY SHOULD BE
AWARDED TO MEET A PARTICULAR CONTINGENCY.  NEVERTHELESS, AN ARBITRATOR
IS CONFINED TO INTERPRETATION AND APPLICATION OF THE COLLECTIVE
BARGAINING AGREEMENT; HE DOES NOT SIT TO DISPENSE HIS OWN BRAND OF
INDUSTRIAL JUSTICE.  HE MAY OF COURSE LOOK FOR GUIDANCE FROM MANY
SOURCES, YET HIS AWARD IS LEGITIMATE ONLY SO LONG AS IT DRAWS ITS
ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  WHEN THE
ARBITRATOR'S WORDS MANIFEST AN INFIDELITY TO THIS OBLIGATION, COURTS
HAVE NO CHOICE BUT TO REFUSE ENFORCEMENT OF THE AWARD. 

THE OPINION OF THE ARBITRATOR IN THIS CASE, AS IT BEARS UPON THE
AWARD OF BACK PAY BEYOND THE DATE OF THE AGREEMENT'S EXPIRATION AND
REINSTATEMENT, IS AMBIGUOUS.  IT MAY BE READ AS BASED SOLELY UPON THE
ARBITRATOR'S VIEW OF THE REQUIREMENTS OF ENACTED LEGISLATION, WHICH
WOULD MEAN THAT HE EXCEEDED THE SCOPE OF THE SUBMISSION.  OR IT MAY BE
READ AS EMBODYING A CONSTRUCTION OF THE AGREEMENT ITSELF, PERHAPS WITH
THE ARBITRATOR LOOKING TO "THE LAW' FOR HELP IN DETERMINING THE SENSE
OF THE AGREEMENT.   A MERE AMBIGUITY IN THE OPINION ACCOMPANYING AN
AWARD, WHICH PERMITS THE INFERENCE THAT THE ARBITRATOR MAY HAVE
EXCEEDED HIS AUTHORITY, IS NOT A REASON FOR REFUSING TO ENFORCE THE
AWARD.  ARBITRATORS HAVE NO OBLIGATION TO THE COURT TO GIVE THEIR
REASONS FOR AN AWARD.  TO REQUIRE OPINIONS (FN3) FREE OF AMBIGUITY MAY
LEAD ARBITRATORS TO PLAY IT SAFE BY WRITING NO SUPPORTING OPINIONS. 
THIS WOULD BE UNDESIRABLE FOR A WELL-REASONED OPINION TENDS TO ENGENDER
CONFIDENCE IN THE INTEGRITY OF THE PROCESS AND AIDS IN CLARIFYING THE
UNDERLYING AGREEMENT.  MOREOVER, WE SEE NO REASON TO ASSUME THAT THIS
ARBITRATOR HAS ABUSED THE TRUST THE PARTIES CONFIDED IN HIM AND HAS NOT
STAYED WITHIN THE AREAS MARKED OUT FOR HIS CONSIDERATION.  IT IS NOT
APPARENT THAT HE WENT BEYOND THE SUBMISSION.  THE COURT OF APPEALS'
OPINION REFUSING TO ENFORCE THE REINSTATEMENT AND PARTIAL BACK PAY
PORTIONS OF THE AWARD WAS NOT BASED UPON ANY FINDING THAT THE
ARBITRATOR DID NOT PREMISE HIS AWARD ON HIS CONSTRUCTION OF THE
CONTRACT.  IT MERELY DISAGREED WITH THE ARBITRATOR'S CONSTRUCTION OF
IT. 

THE COLLECTIVE BARGAINING AGREEMENT COULD HAVE PROVIDED THAT IF ANY
OF THE EMPLOYEES WERE WRONGFULLY DISCHARGED, THE REMEDY WOULD BE
REINSTATEMENT AND BACK PAY UP TO THE DATE THEY WERE RETURNED TO WORK. 
RESPONDENT'S MAJOR ARGUMENT SEEMS TO BE THAT BY APPLYING CORRECT
PRINCIPLES OF LAW TO THE INTERPRETATION OF THE COLLECTIVE BARGAINING
AGREEMENT IT CAN BE DETERMINED THAT THE AGREEMENT DID NOT SO PROVIDE,
AND THAT THEREFORE THE ARBITRATOR'S DECISION WAS NOT BASED UPON THE
CONTRACT.  THE ACCEPTANCE OF THIS VIEW WOULD REQUIRE COURTS, EVEN UNDER
THE STANDARD ARBITRATION CLAUSE, TO REVIEW THE MERITS OF EVERY
CONSTRUCTION OF THE CONTRACT.  THIS PLENARY REVIEW BY A COURT OF THE
MERITS WOULD MAKE MEANINGLESS THE PROVISIONS THAT THE ARBITRATOR'S
DECISION IS FINAL, FOR IN REALITY IT WOULD ALMOST NEVER BE FINAL.  THIS
UNDERLINES THE FUNDAMENTAL ERROR WHICH WE HAVE ALLUDED TO IN UNITED
STEELWORKERS OF AMERICA V. AMERICAN MANUFACTURING CO., ANTE, P. 564,
DECIDED THIS DAY.  AS WE THERE EMPHASIZED, THE QUESTION OF
INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT IS A QUESTION FOR
THE ARBITRATOR.  IT IS THE ARBITRATOR'S CONSTRUCTION WHICH WAS
BARGAINED FOR; AND SO FAR AS THE ARBITRATOR'S DECISION CONCERNS
CONSTRUCTION OF THE CONTRACT, THE COURTS HAVE NO BUSINESS OVERRULING
HIM BECAUSE THEIR INTERPRETATION OF THE CONTRACT IS DIFFERENT FROM
HIS. 

WE AGREE WITH THE COURT OF APPEALS THAT THE JUDGMENT OF THE DISTRICT
COURT SHOULD BE MODIFIED SO THAT THE AMOUNTS DUE THE EMPLOYEES MAY BE
DEFINITELY DETERMINED BY ARBITRATION.  IN ALL OTHER RESPECTS WE THINK
THE JUDGMENT OF THE DISTRICT COURT SHOULD BE AFFIRMED.  ACCORDINGLY, WE
REVERSE THE JUDGMENT OF THE COURT OF APPEALS, EXCEPT FOR THAT
MODIFICATION, AND REMAND THE CASE TO THE DISTRICT COURT FOR PROCEEDINGS
IN CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SEE TEXTILE WORKERS V. CONE MILLS CORP., 268 F.2D 920 (C.A. 4TH
CIR.). 

FN2  "PERSONS UNFAMILIAR WITH MILLS AND FACTORIES - FARMERS OR
PROFESSORS, FOR EXAMPLE - OFTEN REMARK UPON VISITING THEM THAT THEY
SEEM LIKE ANOTHER WORLD.  THIS IS PARTICULARLY TRUE IF, AS IN THE STEEL
INDUSTRY, BOTH TRADITION AND TECHNOLOGY HAVE STRONGLY AND UNIQUELY
MOLDED THE WAYS MEN THINK AND ACT WHEN AT WORK.  THE NEWLY HIRED
EMPLOYEE, THE 'GREEN HAND,' IS GRADUALLY INITIATED INTO WHAT AMOUNTS TO
A MINIATURE SOCIETY.  THERE HE FINDS HIMSELF IN A STRANGE ENVIRONMENT
THAT ASSAULTS HIS SENSES WITH UNUSUAL SOUNDS AND SMELLS AND OFTEN WITH
DIFFERENT 'WEATHER CONDITIONS' SUCH AS SUDDEN DRAFTS OF HEAT, COLD, OR
HUMIDITY.  HE DISCOVERS THAT THE SOCIETY OF WHICH HE ONLY GRADUALLY
BECOMES A PART HAS OF COURSE A FORMAL GOVERNMENT OF ITS OWN - THE RULES
WHICH MANAGEMENT AND THE UNION HAVE LAID DOWN - BUT THAT IT ALSO
DIFFERS FROM OR PARALLELS THE WORLD OUTSIDE IN SOCIAL CLASSES,
FOLKLORE, RITUAL, AND TRADITIONS. 

"UNDER THE PROCESS IN THE OLD MILLS A VERY REAL 'MINIATURE SOCIETY'
HAD GROWN UP, AND IN IMPORTANT WAYS THE TECHNOLOGICAL REVOLUTION
DESCRIBED IN THIS CASE HISTORY SHATTERED IT. BUT A NEW SOCIETY OR WORK
COMMUNITY WAS BORN IMMEDIATELY, THOUGH FOR A LONG TIME IT DEVELOPED
SLOWLY.  AS THE OLD SOCIETY WAS STRONGLY MOLDED BY THE DISCONTINUOUS
PROCESS OF MAKING PIPE, SO WAS THE NEW ONE MOLDED BY THE CONTINUOUS
PROCESS AND STRONGLY INFLUENCED BY THE CHARACTERISTICS OF NEW HIGHSPEED
AUTOMATIC EQUIPMENT."  WALKER, LIFE IN THE AUTOMATIC FACTORY, 36 HARV.
BUS.  REV. 111, 117. 

FN3  SEE JALET, JUDICIAL REVIEW OF ARBITRATION:  THE JUDICIAL
ATTITUDE, 45 CORNELL L.Q. 519, 522. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR OPINION OF MR. JUSTICE BRENNAN, JOINED BY MR. JUSTICE FRANKFURTER
AND MR. JUSTICE HARLAN, SEE ANTE, P. 569. 

MR. JUSTICE WHITTAKER, DISSENTING. 

CLAIMING THAT THE EMPLOYER'S DISCHARGE ON JANUARY 18, 1957, OF 11
EMPLOYEES VIOLATED THE PROVISIONS OF ITS COLLECTIVE BARGAINING CONTRACT
WITH THE EMPLOYER - COVERING THE PERIOD BEGINNING APRIL 5, 1956, AND
ENDING APRIL 4, 1957 - THE UNION SOUGHT AND OBTAINED ARBITRATION, UNDER
THE PROVISIONS OF THE CONTRACT, OF THE ISSUES WHETHER THESE EMPLOYEES
HAD BEEN DISCHARGED IN VIOLATION OF THE AGREEMENT AND, IF SO, SHOULD BE
ORDERED REINSTATED AND AWARDED WAGES FROM THE TIME OF THEIR WRONGFUL
DISCHARGE.  IN AUGUST 1957, MORE THAN FOUR MONTHS AFTER THE COLLECTIVE
AGREEMENT HAD EXPIRED, THESE ISSUES, BY AGREEMENT OF THE PARTIES, WERE
SUBMITTED TO A SINGLE ARBITRATOR, AND A HEARING WAS HELD BEFORE HIM ON
JANUARY 3, 1958.  ON APRIL 10, 1958, THE ARBITRATOR MADE HIS AWARD,
FINDING THAT THE 11 EMPLOYEES HAD BEEN DISCHARGED IN VIOLATION OF THE
AGREEMENT AND ORDERING THEIR REINSTATEMENT WITH BACK PAY AT THEIR
REGULAR RATES FROM A TIME 10 DAYS AFTER THEIR DISCHARGE TO THE TIME OF
REINSTATEMENT.  OVER THE EMPLOYER'S OBJECTION THAT THE COLLECTIVE
AGREEMENT AND THE SUBMISSION UNDER IT DID NOT AUTHORIZE NOR EMPOWER THE
ARBITRATOR TO AWARD REINSTATEMENT OR WAGES FOR ANY PERIOD AFTER THE
DATE OF EXPIRATION OF THE CONTRACT (APRIL 4, 1957), THE DISTRICT COURT
ORDERED ENFORCEMENT OF THE AWARD.  THE COURT OF APPEALS MODIFIED THE
JUDGMENT BY ELIMINATING THE REQUIREMENT THAT THE EMPLOYER REINSTATE THE
EMPLOYEES AND PAY THEM WAGES FOR THE PERIOD AFTER EXPIRATION OF THE
COLLECTIVE AGREEMENT, AND AFFIRMED IT IN ALL OTHER RESPECTS, 269 F.2D
327, AND WE GRANTED CERTIORARI, 361 U.S. 929. 

THAT THE PROPRIETY OF THE DISCHARGES, UNDER THE COLLECTIVE AGREEMENT,
WAS ARBITRABLE UNDER THE PROVISIONS OF THAT AGREEMENT, EVEN AFTER ITS
EXPIRATION, IS NOT IN ISSUE.  NOR IS THERE ANY ISSUE HERE AS TO THE
POWER OF THE ARBITRATOR TO AWARD REINSTATEMENT STATUS AND BACK PAY TO
THE DISCHARGED EMPLOYEES TO THE DATE OF EXPIRATION OF THE COLLECTIVE
AGREEMENT.  IT IS CONCEDED, TOO, THAT THE COLLECTIVE AGREEMENT EXPIRED
BY ITS TERMS ON APRIL 4, 1957, AND WAS NEVER EXTENDED OR RENEWED. 

THE SOLE QUESTION HERE IS WHETHER THE ARBITRATOR EXCEEDED THE
SUBMISSION AND HIS POWERS IN AWARDING REINSTATEMENT AND BACK PAY FOR
ANY PERIOD AFTER EXPIRATION OF THE COLLECTIVE AGREEMENTS.  LIKE THE
COURT OF APPEALS, I THINK HE DID.  I FIND NOTHING IN THE COLLECTIVE
AGREEMENT THAT PURPORTS TO SO AUTHORIZE.  NOR DOES THE COURT POINT TO
ANYTHING IN THE AGREEMENT THAT PURPORTS TO DO SO. INDEED, THE UNION
DOES NOT CONTEND THAT THERE IS ANY SUCH COVENANT IN THE CONTRACT. 
DOUBTLESS ALL RIGHTS THAT ACCRUED TO THE EMPLOYEES UNDER THE COLLECTIVE
AGREEMENT DURING ITS TERM, AND THAT WERE MADE ARBITRABLE BY ITS
PROVISIONS, COULD BE AWARDED TO THEM BY THE ARBITRATOR, EVEN THOUGH THE
PERIOD OF THE AGREEMENT HAD ENDED.  BUT SURELY NO RIGHTS ACCRUED TO THE
EMPLOYEES UNDER THE AGREEMENT AFTER IT HAD EXPIRED.  SAVE FOR THE
PROVISIONS OF THE COLLECTIVE AGREEMENT, AND IN THE ABSENCE, AS HERE, OF
ANY APPLICABLE RULE OF LAW OR CONTRARY COVENANT BETWEEN THE EMPLOYER
AND THE EMPLOYEES, THE EMPLOYER HAD THE LEGAL RIGHT TO DISCHARGE THE
EMPLOYEES AT WILL.  THE COLLECTIVE AGREEMENT, HOWEVER, PROTECTED THEM
AGAINST DISCHARGE, FOR SPECIFIED REASONS, DURING ITS CONTINUATION.  BUT
WHEN THAT AGREEMENT EXPIRED, IT DID NOT CONTINUE TO AFFORD RIGHTS IN
FUTURO TO THE EMPLOYEES - AS THOUGH STILL EFFECTIVE AND GOVERNING. 
AFTER THE AGREEMENT EXPIRED, THE EMPLOYMENT STATUS OF THESE 11
EMPLOYEES WAS TERMINABLE AT THE WILL OF THE EMPLOYER, AS THE COURT OF
APPEALS QUITE PROPERLY HELD, 269 F.2D, AT 331, AND SEE MEADOWS V. RADIO
INDUSTRIES, 222 F.2D 347, 349 (C.A. 7TH CIR.); ATCHISON, T.&S.F.R. CO.
V. ANDREWS, 211 F.2D 264, 265 (C.A. 10TH CIR.); WARDEN V. HINDS, 163 F.
201 (C.A. 4TH CIR.), AND THE ANNOUNCED DISCHARGE OF THESE 11 EMPLOYEES
THEN BECAME LAWFULLY EFFECTIVE. 

ONCE THE CONTRACT EXPIRED, NO RIGHTS CONTINUED TO ACCRUE UNDER IT TO
THE EMPLOYEES.  THEREAFTER THEY HAD NO CONTRACTUAL RIGHT TO DEMAND THAT
THE EMPLOYER CONTINUE TO EMPLOY THEM, AND A FORTIORI THE ARBITRATOR DID
NOT HAVE POWER TO ORDER THE EMPLOYER TO DO SO; NOR DID THE ARBITRATOR
HAVE POWER TO ORDER THE EMPLOYER TO PAY WAGES TO THEM AFTER THE DATE OF
TERMINATION OF THE CONTRACT, WHICH WAS ALSO THE EFFECTIVE DATE OF THEIR
DISCHARGES. 

THE JUDGMENT OF THE COURT OF APPEALS, AFFIRMING SO MUCH OF THE AWARD
AS REQUIRED REINSTATEMENT OF THE 11 EMPLOYEES TO EMPLOYMENT STATUS AND
PAYMENT OF THEIR WAGES UNTIL EXPIRATION OF THE CONTRACT, BUT NOT
THEREAFTER, SEEMS TO ME TO BE INDUBITABLY CORRECT, AND I WOULD AFFIRM
IT.
..END :





















FLEMMING V. NESTOR 363 U.S. 603 


NO. 54.  ARGUED FEBRUARY 24, 1960.  - DECIDED JUNE 20, 1960.  - 169 F.
SUPP. 922, REVERSED. 


THE TERMINATION OF OLD-AGE BENEFITS PAYABLE TO AN ALIEN WHO, AFTER THE
DATE OF ITS ENACTMENT (SEPTEMBER 1, 1954), IS DEPORTED UNDER SEC.
241(A) OF THE IMMIGRATION AND NATIONALITY ACT ON ANY ONE OF CERTAIN
GROUNDS SPECIFIED IN SEC. 202(N).  APPELLEE, AN ALIEN WHO HAD BECOME
ELIGIBLE FOR OLD-AGE BENEFITS IN 1955, WAS DEPORTED IN 1956, PURSUANT
TO SEC. 241(A) OF THE IMMIGRATION AND NATIONALITY ACT, FOR HAVING BEEN
A MEMBER OF THE COMMUNIST PARTY FROM 1933 TO 1939.  SINCE THIS WAS ONE
OF THE GROUNDS SPECIFIED IN SEC. 202(N), HIS OLD-AGE BENEFITS WERE
TERMINATED SHORTLY THEREAFTER.  HE COMMENCED THIS ACTION IN A SINGLE
JUDGE DISTRICT COURT, UNDER SEC. 205(G) OF THE SOCIAL SECURITY ACT, TO
SECURE JUDICIAL REVIEW OF THAT ADMINISTRATIVE DECISION.  THE DISTRICT
COURT HELD THAT SEC. 202(N) DEPRIVED APPELLEE OF AN ACCRUED PROPERTY
RIGHT AND, THEREFORE, VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  HELD: 

1.  ALTHOUGH THIS ACTION DREW INTO QUESTION THE CONSTITUTIONALITY OF
SEC. 202(N), IT DID NOT INVOLVE AN INJUNCTION OR OTHERWISE INTERDICT
THE OPERATION OF THE STATUTORY SCHEME; 28 U.S.C.  SEC. 2282, FORBIDDING
THE ISSUANCE OF AN INJUNCTION RESTRAINING THE ENFORCEMENT, OPERATION OR
EXECUTION OF AN ACT OF CONGRESS FOR REPUGNANCE TO THE CONSTITUTION,
EXCEPT BY A THREE-JUDGE DISTRICT COURT, WAS NOT APPLICABLE; AND
JURISDICTION OVER THE ACTION WAS PROPERLY EXERCISED BY THE SINGLE-JUDGE
DISTRICT COURT.  PP. 606-608. 

2.  A PERSON COVERED BY THE SOCIAL SECURITY ACT HAS NOT SUCH A RIGHT
IN OLD-AGE BENEFIT PAYMENTS AS WOULD MAKE EVERY DEFEASANCE OF "ACCRUED"
INTERESTS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 
PP. 608-611. 

(A)  THE NONCONTRACTUAL INTEREST OF AN EMPLOYEE COVERED BY THE ACT
CANNOT BE SOUNDLY ANALOGIZED TO THAT OF THE HOLDER OF AN ANNUITY, WHOSE
RIGHTS TO BENEFITS ARE BASED ON HIS CONTRACTUAL PREMIUM PAYMENTS.  PP.
608-610. 

(B)  TO ENGRAFT UPON THE SOCIAL SECURITY SYSTEM A CONCEPT OF "ACCRUED
PROPERTY RIGHTS" WOULD DEPRIVE IT OF THE FLEXIBILITY AND BOLDNESS IN
ADJUSTMENT TO EVER-CHANGING CONDITIONS WHICH IT DEMANDS AND WHICH
CONGRESS PROBABLY HAD IN MIND WHEN IT EXPRESSLY RESERVED THE RIGHT TO
ALTER, AMEND OR REPEAL ANY PROVISION OF THE ACT.  PP. 610-611. 

3.  SECTION 202(N) OF THE ACT CANNOT BE CONDEMNED AS SO LACKING IN
RATIONAL JUSTIFICATION AS TO OFFEND DUE PROCESS.  PP. 611-612. 

4.  TERMINATION OF APPELLEE'S BENEFITS UNDER SEC. 202(N) DOES NOT
AMOUNT TO PUNISHING HIM WITHOUT A TRIAL, IN VIOLATION OF ART. III, SEC.
2, CL. 3, OF THE CONSTITUTION OR THE SIXTH AMENDMENT; NOR IS SEC.
202(N) A BILL OF ATTAINDER OR EX POST FACTO LAW, SINCE ITS PURPOSE IS
NOT PUNITIVE.  PP. 612-621. 

FLEMMING, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, V. NESTOR. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE HARLAN DELIVERED THE OPINON OF THE COURT. 

FROM A DECISION OF THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HOLDING SEC. 202(N) OF THE SOCIAL SECURITY ACT (68 STAT. 1083, AS
AMENDED, 42 U.S.C. SEC. 402(N)) UNCONSTITUTIONAL, THE SECRETARY OF
HEALTH, EDUCATION, AND WELFARE TAKES THIS DIRECT APPEAL PURSUANT TO 28
U.S.C.  SEC. 1252.  THE CHALLENGED SECTION, SET FORTH IN FULL IN THE
MARGIN, (FN1) PROVIDES FOR THE TERMINATION OF OLD-AGE, SURVIVOR, AND
DISABILITY INSURANCE BENEFITS PAYABLE TO, OR IN CERTAIN CASES IN
RESPECT OF, AN ALIEN INDIVIDUAL WHO, AFTER SEPTEMBER 1, 1954 (THE DATE
OF ENACTMENT OF THE SECTION), IS DEPORTED UNDER SEC. 241(A) OF THE
IMMIGRATION AND NATIONALITY ACT (8 U.S.C.  SEC. 1251A)) ON ANY ONE OF
CERTAIN GROUNDS SPECIFIED IN SEC. 202(N). 

APPELLEE, AN ALIEN, IMMIGRATED TO THIS COUNTRY FROM BULGARIA IN 1913,
AND BECAME ELIGIBLE FOR OLD-AGE BENEFITS IN NOVEMBER 1955.  IN JULY
1956 HE WAS DEPORTED PURSUANT TO SEC.  241(A)(6)(C)(I) OF THE
IMMIGRATION AND NATIONALITY ACT FOR HAVING BEEN A MEMBER OF THE
COMMUNIST PARTY FROM 1933 TO 1939.  THIS BEING ONE OF THE BENEFIT
TERMINATION DEPORTATION GROUNDS SPECIFIED IN SEC. 202(N), APPELLEE'S
BENEFITS WERE TERMINATED SOON THEREAFTER, AND NOTICE OF THE TERMINATION
WAS GIVEN TO HIS WIFE, WHO HAD REMAINED IN THIS COUNTRY.  (FN2)  UPON
HIS FAILURE TO OBTAIN ADMINISTRATIVE REVERSAL OF THE DECISION, APPELLEE
COMMENCED THIS ACTION IN THE DISTRICT COURT, PURSUANT TO SEC. 205(G) OF
THE SOCIAL SECURITY ACT (53 STAT. 1370, AS AMENDED, 42 U.S.C. SEC.
405(G)), TO SECURE JUDICIAL REVIEW.  (FN3)  ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT, THE DISTRICT COURT RULED FOR APPELLEE, HOLDING SEC.
202(N) UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT IN THAT IT DEPRIVED APPELLEE OF AN ACCRUED PROPERTY RIGHT. 
169 F. SUPP. 922.  THE SECRETARY PROSECUTED AN APPEAL TO THIS COURT,
AND, SUBJECT TO A JURISDICTIONAL QUESTION HEREINAFTER DISCUSSED, WE SET
THE CASE DOWN FOR PLENARY HEARING.  360 U.S. 915. 

THE PRELIMINARY JURISDICTIONAL QUESTION IS WHETHER 28 U.S.C. SEC.
2282 IS APPLICABLE, AND THEREFORE REQUIRED THAT THE CASE BE HEARD BELOW
BEFORE THREE JUDGES, RATHER THAN BY A SINGLE JUDGE, AS IT WAS.  SECTION
2282 FORBIDS THE ISSUANCE, EXCEPT BY A THREE-JUDGE DISTRICT COURT, OF
ANY "INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE ENFORCEMENT,
OPERATION OR EXECUTION OF ANY ACT OF CONGRESS FOR REPUGNANCE TO THE
CONSTITUTION  ...  ."  NEITHER PARTY REQUESTED A THREE-JUDGE COURT
BELOW, AND IN THIS COURT BOTH PARTIES ARGUE THE INAPPLICABILITY OF SEC.
2282.  IF THE PROVISION APPLIES, WE CANNOT REACH THE MERITS, BUT MUST
VACATE THE JUDGMENT BELOW AND REMAND THE CASE FOR CONSIDERATION BY A
THREE-JUDGE DISTRICT COURT.  SEE FEDERAL HOUSING ADMINISTRATION V. THE
DARLINGTON, INC., 352 U.S. 977. 

UNDER THE DECISIONS OF THIS COURT, THIS SEC. 205(G) ACTION COULD, AND
DID, DRAW IN QUESTION THE CONSTITUTIONALITY OF SEC. 202(N).  SEE, E.G.,
ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337, 345-346.  HOWEVER, THE ACTION
DID NO MORE.  IT DID NOT SEEK AFFIRMATIVELY TO INTERDICT THE OPERATION
OF A STATUTORY SCHEME.  A JUDGMENT FOR THE APPELLEE WOULD NOT PUT THE
OPERATION OF A FEDERAL STATUTE UNDER THE RESTRAINT OF AN EQUITY DECREE;
INDEED, APART FROM ITS EFFECT UNDER THE DOCTRINE OF STARE DECISIS, IT
WOULD HAVE NO OTHER RESULT THAN TO REQUIRE THE PAYMENT OF APPELLEE'S
BENEFITS.  IN THESE CIRCUMSTANCES WE THINK THAT WHAT WAS SAID IN
GARMENT WORKERS V. DONNELLY CO., 304 U.S. 243, WHERE THIS COURT DEALT
WITH AN ANALOGOUS SITUATION, IS CONTROLLING HERE: 

"THE PREDECESSOR OF SEC. 2282 DOES NOT PROVIDE FOR A CASE WHERE THE
VALIDITY OF AN ACT OF CONGRESS IS MERELY DRAWN IN QUESTION, ALBEIT THAT
QUESTION BE DECIDED, BUT ONLY FOR A CASE WHERE THERE IS AN APPLICATION
FOR AN INTERLOCUTORY OR PERMANENT INJUNCTION TO RESTRAIN THE
ENFORCEMENT OF AN ACT OF CONGRESS  ...  .  HAD CONGRESS INTENDED THE
PROVISION  ...  , FOR THREE JUDGES AND DIRECT APPEAL, TO APPLY WHENEVER
A QUESTION OF THE VALIDITY OF AN ACT OF CONGRESS BECAME INVOLVED,
CONGRESS WOULD NATURALLY HAVE USED THE FAMILIAR PHRASE 'DRAWN IN
QUESTION'  ...  ."  ID., AT 250. 

WE HOLD THAT JURISDICTION OVER THE ACTION WAS PROPERLY EXERCISED BY
THE DISTRICT COURT, AND THEREFORE REACH THE MERITS. 

                                              I. 

WE THINK THAT THE DISTRICT COURT ERRED IN HOLDING THAT SEC. 202(N)
DEPRIVED APPELLEE OF AN "ACCRUED PROPERTY RIGHT."  169 F. SUPP., AT
934.  APPELLEE'S RIGHT TO SOCIAL SECURITY BENEFITS CANNOT PROPERLY BE
CONSIDERED TO HAVE BEEN OF THAT ORDER. 

THE GENERAL PURPOSES UNDERLYING THE SOCIAL SECURITY ACT WERE
EXPOUNDED BY MR. JUSTICE CARDOZO IN HELVERING V. DAVIS, 301 U.S. 619,
640-645.  THE ISSUE HERE, HOWEVER, REQUIRES SOME INQUIRY INTO THE
STATUTORY SCHEME BY WHICH THOSE PURPOSES ARE SOUGHT TO BE ACHIEVED. 
PAYMENTS UNDER THE ACT ARE BASED UPON THE WAGE EARNER'S RECORD OF
EARNINGS IN EMPLOYMENT OR SELF-EMPLOYMENT COVERED BY THE ACT, AND TAKE
THE FORM OF OLD-AGE INSURANCE AND DISABILITY INSURANCE BENEFITS INURING
TO THE WAGE EARNER (KNOWN AS THE "PRIMARY BENEFICIARY"), AND OF
BENEFITS, INCLUDING SURVIVOR BENEFITS, PAYABLE TO NAMED DEPENDENTS
("SECONDARY BENEFICIARIES") OF A WAGE EARNER.  BROADLY SPEAKING,
ELIGIBILITY FOR BENEFITS DEPENDS ON SATISFYING STATUTORY CONDITIONS AS
TO (1) EMPLOYMENT IN COVERED EMPLOYMENT OR SELF-EMPLOYMENT (SEE SEC.
210(A), 42 U.S.C. SEC. 410(A)); (2) THE REQUISITE NUMBER OF "QUARTERS
OF COVERAGE" - I.E., THREE-MONTH PERIODS DURING WHICH NOT LESS THAN A
STATED SUM WAS EARNED - THE NUMBER DEPENDING GENERALLY ON AGE (SEE
SECS. 213-215, 42 U.S.C. SECS. 413-415); AND (3) ATTAINMENT OF THE
RETIREMENT AGE (SEE SEC. 216(A), 42 U.S.C.  SEC. 416(A)).  SEC. 202(A),
42 U.S.C. SEC. 402(A).  (FN4)  ENTITLEMENT TO BENEFITS ONCE GAINED IS
PARTIALLY OR TOTALLY LOST IF THE BENEFICIARY EARNS MORE THAN A STATED
ANNUAL SUM, UNLESS HE OR SHE IS AT LEAST 72 YEARS OLD.  SEC. 203(B),
(E), 42 U.S.C. SEC. 403(B), (E).  OF SPECIAL IMPORTANCE IN THIS CASE IS
THE FACT THAT ELIGIBILITY FOR BENEFITS, AND THE AMOUNT OF SUCH
BENEFITS, DO NOT IN ANY TRUE SENSE DEPEND ON CONTRIBUTION TO THE
PROGRAM THROUGH THE PAYMENT OF TAXES, BUT RATHER ON THE EARNINGS RECORD
OF THE PRIMARY BENEFICIARY. 

THE PROGRAM IS FINANCED THROUGH A PAYROLL TAX LEVIED ON EMPLOYEES IN
COVERED EMPLOYMENT, AND ON THEIR EMPLOYERS.  THE TAX RATE, WHICH IS A
FIXED PERCENTAGE OF THE FIRST $4,800 OF EMPLOYEE ANNUAL INCOME, IS SET
AT A SCALE WHICH WILL INCREASE FROM YEAR TO YEAR, PRESUMABLY TO KEEP
PACE WITH RISING BENEFIT COSTS.  I.R.C. OF 1954, SECS. 3101, 3111,
3121(A).  THE TAX PROCEEDS ARE PAID INTO THE TREASURY "AS INTERNAL
REVENUE COLLECTIONS," I.R.C., SEC. 3501, AND EACH YEAR AN AMOUNT EQUAL
TO THE PROCEEDS IS APPROPRIATED TO A TRUST FUND, FROM WHICH BENEFITS
AND THE EXPENSES OF THE PROGRAM ARE PAID.  SEC. 201, 42 U.S.C. SEC.
401.  IT WAS EVIDENTLY CONTEMPLATED THAT RECEIPTS WOULD GREATLY EXCEED
DISBURSEMENTS IN THE EARLY YEARS OF OPERATION OF THE SYSTEM, AND
SURPLUS FUNDS ARE INVESTED IN GOVERNMENT OBLIGATIONS, AND THE INCOME
RETURNED TO THE TRUST FUND.  THUS, PROVISION IS MADE FOR EXPECTED
INCREASING COSTS OF THE PROGRAM. 

THE SOCIAL SECURITY SYSTEM MAY BE ACCURATELY DESCRIBED AS A FORM OF
SOCIAL INSURANCE, ENACTED PURSUANT TO CONGRESS' POWER TO "SPEND MONEY
IN AID OF THE 'GENERAL WELFARE,'" HELVERING V. DAVIS, SUPRA, AT 640,
WHEREBY PERSONS GAINFULLY EMPLOYED, AND THOSE WHO EMPLOY THEM, ARE
TAXED TO PERMIT THE PAYMENT OF BENEFITS TO THE RETIRED AND DISABLED,
AND THEIR DEPENDENTS.  PLAINLY THE EXPECTATION IS THAT MANY MEMBERS OF
THE PRESENT PRODUCTIVE WORK FORCE WILL IN TURN BECOME BENEFICIARIES
RATHER THAN SUPPORTERS OF THE PROGRAM.  BUT EACH WORKER'S BENEFITS,
THOUGH FLOWING FROM THE CONTRIBUTIONS HE MADE TO THE NATIONAL ECONOMY
WHILE ACTIVELY EMPLOYED, ARE NOT DEPENDENT ON THE DEGREE TO WHICH HE
WAS CALLED UPON TO SUPPORT THE SYSTEM BY TAXATION.  IT IS APPARENT THAT
THE NONCONTRACTUAL INTEREST OF AN EMPLOYEE COVERED BY THE ACT CANNOT BE
SOUNDLY ANALOGIZED TO THAT OF THE HOLDER OF AN ANNUITY, WHOSE RIGHT TO
BENEFITS IS BOTTOMED ON HIS CONTRACTUAL PREMIUM PAYMENTS. 

IT IS HARDLY PROFITABLE TO ENGAGE IN CONCEPTUALIZATIONS REGARDING
"EARNED RIGHTS" AND GRATUITIES."   CF. LYNCH V. UNITED STATES, 292 U.S.
571, 576-577.  THE "RIGHT" TO SOCIAL SECURITY BENEFITS IS IN ONE SENSE
"EARNED," FOR THE ENTIRE SCHEME RESTS ON THE LEGISLATIVE JUDGMENT THAT
THOSE WHO IN THEIR PRODUCTIVE YEARS WERE FUNCTIONING MEMBERS OF THE
ECONOMY MAY JUSTLY CALL UPON THAT ECONOMY, IN THEIR LATER YEARS, FOR
PROTECTION FROM "THE RIGORS OF THE POOR HOUSE AS WELL AS FROM THE
HAUNTING FEAR THAT SUCH A LOT AWAITS THEM WHEN JOURNEY'S END IS NEAR." 
HELVERING V. DAVIS, SUPRA, AT 641.  BUT THE PRACTICAL EFFECTUATION OF
THAT JUDGMENT HAS OF NECESSITY CALLED FORTH A HIGHLY COMPLEX AND
INTERRELATED STATUTORY STRUCTURE.  INTEGRATED TREATMENT OF THE MANIFOLD
SPECIFIC PROBLEMS PRESENTED BY THE SOCIAL SECURITY PROGRAM DEMANDS MORE
THAN A GENERALIZATION.  THAT PROGRAM WAS DESIGNED TO FUNCTION INTO THE
INDEFINITE FUTURE, AND ITS SPECIFIC PROVISIONS REST ON PREDICTIONS AS
TO EXPECTED ECONOMIC CONDITIONS WHICH MUST INEVITABLY PROVE LESS THAN
WHOLLY ACCURATE, AND ON JUDGMENTS AND PREFERENCES AS TO THE PROPER
ALLOCATION OF THE NATION'S RESOURCES WHICH EVOLVING ECONOMIC AND SOCIAL
CONDITIONS WILL OF NECESSITY IN SOME DEGREE MODIFY. 

TO ENGRAFT UPON THE SOCIAL SECURITY SYSTEM A CONCEPT OF "ACCRUED
PROPERTY RIGHTS" WOULD DEPRIVE IT OF THE FLEXIBILITY AND BOLDNESS IN
ADJUSTMENT TO EVER-CHANGING CONDITIONS WHICH IT DEMANDS.  SEE
WOLLENBERG, VESTED RIGHTS IN SOCIAL-SECURITY BENEFITS, 37 ORE.  L. REV.
299, 359.  IT WAS DOUBTLESS OUT OF AN AWARENESS OF THE NEED FOR SUCH
FLEXIBILITY THAT CONGRESS INCLUDED IN THE ORIGINAL ACT, AND HAS SINCE
RETAINED, A CLAUSE EXPRESSLY RESERVING TO IT "THE RIGHT TO ALTER,
AMEND, OR REPEAL ANY PROVISION" OF THE ACT.  SEC. 1104, 49 STAT. 648,
42 U.S.C. SEC. 1304.  THAT PROVISION MAKES EXPRESS WHAT IS IMPLICIT IN
THE INSTITUTIONAL NEEDS OF THE PROGRAM.  SEE ANALYSIS OF THE SOCIAL
SECURITY SYSTEM, HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON
WAYS AND MEANS, HOUSE OF REPRESENTATIVES, 83D CONG., 1ST SESS., PP. 920
921.  IT WAS PURSUANT TO THAT PROVISION THAT SEC. 202(N) WAS ENACTED. 

WE MUST CONCLUDE THAT A PERSON COVERED BY THE ACT HAS NOT SUCH A
RIGHT IN BENEFIT PAYMENTS AS WOULD MAKE EVERY DEFEASANCE OF "ACCRUED"
INTERESTS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

                             II. 

THIS IS NOT TO SAY, HOWEVER, THAT CONGRESS MAY EXERCISE ITS POWER TO
MODIFY THE STATUTORY SCHEME FREE OF ALL CONSTITUTIONAL RESTRAINT.  THE
INTEREST OF A COVERED EMPLOYEE UNDER THE ACT IS OF SUFFICIENT SUBSTANCE
TO FALL WITHIN THE PROTECTION FROM ARBITRARY GOVERNMENTAL ACTION
AFFORDED BY THE DUE PROCESS CLAUSE.  IN JUDGING THE PERMISSIBILITY OF
THE CUT-OFF PROVISIONS OF SEC. 202(N) FROM THIS STANDPOINT, IT IS NOT
WITHIN OUR AUTHORITY TO DETERMINE WHETHER THE CONGRESSIONAL JUDGMENT
EXPRESSED IN THAT SECTION IS SOUND OR EQUITABLE, OR WHETHER IT COMPORTS
WELL OR ILL WITH THE PURPOSES OF THE ACT.  "WHETHER WISDOM OR UNWISDOM
RESIDES IN THE SCHEME OF BENEFITS SET FORTH IN TITLE II, IT IS NOT FOR
US TO SAY.  THE ANSWER TO SUCH INQUIRIES MUST COME FROM CONGRESS, NOT
THE COURTS.  OUR CONCERN HERE, AS OFTEN, IS WITH POWER, NOT WITH
WISDOM."  HELVERING V. DAVIS, SUPRA, AT 644.  PARTICULARLY WHEN WE DEAL
WITH A WITHHOLDING OF A NONCONTRACTUAL BENEFIT UNDER A SOCIAL WELFARE
PROGRAM SUCH AS THIS, WE MUST RECOGNIZE THAT THE DUE PROCESS CLAUSE CAN
BE THOUGHT TO INTERPOSE A BAR ONLY IF THE STATUTE MANIFESTS A PATENTLY
ARBITRARY CLASSIFICATION, UTTERLY LACKING IN RATIONAL JUSTIFICATION. 

SUCH IS NOT THE CASE HERE.  THE FACT OF A BENEFICIARY'S RESIDENCE
ABROAD - IN THE CASE OF A DEPORTEE, A PRESUMABLY PERMANENT RESIDENCE -
CAN BE OF OBVIOUS RELEVANCE TO THE QUESTION OF ELIGIBILITY.  ONE
BENEFIT WHICH MAY BE THOUGHT TO ACCRUE TO THE ECONOMY FROM THE SOCIAL
SECURITY SYSTEM IS THE INCREASED OVER-ALL NATIONAL PURCHASING POWER
RESULTING FROM TAXATION OF PRODUCTIVE ELEMENTS OF THE ECONOMY TO
PROVIDE PAYMENTS TO THE RETIRED AND DISABLED, WHO MIGHT OTHERWISE BE
DESTITUTE OR NEARLY SO, AND WHO WOULD GENERALLY SPEND A COMPARATIVELY
LARGE PERCENTAGE OF THEIR BENEFIT PAYMENTS.  THIS ADVANTAGE WOULD BE
LOST AS TO PAYMENTS MADE TO ONE RESIDING ABROAD.  FOR THESE PURPOSES,
IT IS, OF COURSE, CONSTITUTIONALLY IRRELEVANT WHETHER THIS REASONING IN
FACT UNDERLAY THE LEGISLATIVE DECISION, AS IT IS IRRELEVANT THAT THE
IN LOGIC APPLY.  (FN5)  SEE UNITED STATES V. PETRILLO, 332 U.S. 1, 8-9;
STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 584-585; CF. CARMICHAEL V.
SOUTHERN COAL CO., 301 U.S. 495, 510-513.  NOR, APART FROM THIS, CAN IT
BE DEEMED IRRATIONAL FOR CONGRESS TO HAVE CONCLUDED THAT THE PUBLIC
PURSE SHOULD NOT BE UTILIZED TO CONTRIBUTE TO THE SUPPORT OF THOSE
DEPORTED ON THE GROUNDS SPECIFIED IN THE STATUTE.    WE NEED GO NO
FURTHER TO FIND SUPPORT FOR OUR CONCLUSION THAT THIS PROVISION OF THE
ACT CANNOT BE CONDEMNED AS SO LACKING IN RATIONAL JUSTIFICATION AS TO
OFFEND DUE PROCESS. 

                                  III. 

THE REMAINING, AND MOST INSISTENTLY PRESSED, CONSTITUTIONAL
OBJECTIONS REST UPON ART. I, SEC. 9, CL. 3, AND ART. III, SEC. 2, CL.
3, OF THE CONSTITUTION, AND THE SIXTH AMENDMENT.  (FN6)  IT IS SAID
THAT THE TERMINATION OF APPELLEE'S BENEFITS AMOUNTS TO PUNISHING HIM
WITHOUT A JUDICIAL TRIAL, SEE WONG WING V. UNITED STATES, 163 U.S. 228;
THAT THE TERMINATION OF BENEFITS CONSTITUTES THE IMPOSITION OF
PUNISHMENT BY LEGISLATIVE ACT, RENDERING SEC. 202(N) A BILL OF
ATTAINDER" SEE UNITED STATES V. LOVETT, 328 U.S. 303; CUMMINGS V.
MISSOURI, 4 WALL.  277; AND THAT THE PUNISHMENT EXACTED IS IMPOSED FOR
PAST CONDUCT NOT UNLAWFUL WHEN ENGAGED IN, THEREBY VIOLATING THE
CONSTITUTIONAL PROHIBITION ON EX POST FACTO LAWS, SEE EX PARTE GARLAND,
4 WALL.  333.  (FN7)  ESSENTIAL TO THE SUCCESS OF EACH OF THESE
CONTENTIONS IS THE VALIDITY OF CHARACTERIZING AS "PUNISHMENT" IN THE
CONSTITUTIONAL SENSE THE TERMINATION OF BENEFITS UNDER SEC. 202(N). 

IN DETERMINING WHETHER LEGISLATION WHICH BASES A DISQUALIFICATION ON
THE HAPPENING OF A CERTAIN PAST EVENT IMPOSES A PUNISHMENT, THE COURT
HAS SOUGHT TO DISCERN THE OBJECTS ON WHICH THE ENACTMENT IN QUESTION
WAS FOCUSED.  WHERE THE SOURCE OF LEGISLATIVE CONCERN CAN BE THOUGHT TO
BE THE ACTIVITY OR STATUS FROM WHICH THE INDIVIDUAL IS BARRED, THE
DISQUALIFICATION IS NOT PUNISHMENT EVEN THOUGH IT MAY BEAR HARSHLY UPON
ONE AFFECTED.  THE CONTRARY IS THE CASE WHERE THE STATUTE IN QUESTION
IS EVIDENTLY AIMED AT THE PERSON OR CLASS OF PERSONS DISQUALIFIED.  IN
THE EARLIEST CASE ON WHICH APPELLEE RELIES, A CLERGYMAN SUCCESSFULLY
CHALLENGED A STATE CONSTITUTIONAL PROVISION BARRING FROM THAT
PROFESSION - AND FROM MANY OTHER PROFESSIONS AND OFFICES - ALL WHO
WOULD NOT SWEAR THAT THEY HAD NEVER MANIFESTED ANY SYMPATHY OR SUPPORT
FOR THE CAUSE OF THE CONFEDERACY.  CUMMINGS V. MISSOURI, SUPRA.  THE
COURT THUS DESCRIBED THE AIMS OF THE CHALLENGED ENACTMENT: 

"THE OATH COULD NOT  ...  HAVE BEEN REQUIRED AS A MEANS OF
ASCERTAINING WHETHER PARTIES WERE QUALIFIED OR NOT FOR THEIR RESPECTIVE
CALLINGS OR THE TRUSTS WITH WHICH THEY WERE CHARGED.  IT WAS REQUIRED
IN ORDER TO REACH THE PERSON, NOT THE CALLING.  IT WAS EXACTED, NOT
FROM ANY NOTION THAT THE SEVERAL ACTS DESIGNATED INDICATED UNFITNESS
FOR THE CALLINGS, BUT BECAUSE IT WAS THOUGHT THAT THE SEVERAL ACTS
DESERVED PUNISHMENT  ...  ."  ID., AT 320. 

ONLY THE OTHER DAY THE GOVERNING INQUIRY WAS STATED, IN AN OPINION
JOINED BY FOUR MEMBERS OF THE COURT, IN THESE TERMS: 

"THE QUESTION IN EACH CASE WHERE UNPLEASANT CONSEQUENCES ARE BROUGHT
TO BEAR UPON AN INDIVIDUAL FOR PRIOR CONDUCT, IS WHETHER THE
LEGISLATIVE AIM WAS TO PUNISH THAT INDIVIDUAL FOR PAST ACTIVITY, OR
WHETHER THE RESTRICTION OF THE INDIVIDUAL COMES ABOUT AS A RELEVANT
INCIDENT TO A REGULATION OF A PRESENT SITUATION, SUCH AS THE PROPER
QUALIFICATIONS FOR A PROFESSION."  DE VEAU V. BRAISTED, 363 U.S. 144,
160 (PLURALITY OPINION). 

IN EX PARTE GARLAND, SUPRA, WHERE THE COURT STRUCK DOWN AN OATH -
SIMILAR IN CONTENT TO THAT INVOLVED IN CUMMINGS - REQUIRED OF ATTORNEYS
SEEKING TO PRACTICE BEFORE ANY FEDERAL COURT, AS ALSO IN CUMMINGS, THE
FINDING OF PUNITIVE INTENT DREW HEAVILY ON THE COURT'S FIRST-HAND
ACQUAINTANCE WITH THE EVENTS AND THE MOOD OF THE THEN RECENT CIVIL WAR,
AND "THE FIERCE PASSIONS WHICH THAT STRUGGLE AROUSED."  CUMMINGS V.
MISSOURI, SUPRA, AT 322.  (FN8)  SIMILARLY, IN UNITED STATES V. LOVETT,
SUPRA, WHERE THE COURT INVALIDATED, AS A BILL OF ATTAINDER, A STATUTE
FORBIDDING - SUBJECT TO CERTAIN CONDITIONS - THE FURTHER PAYMENT OF THE
SALARIES OF THREE NAMED GOVERNMENT EMPLOYEES, THE DETERMINATION THAT A
PUNISHMENT HAD BEEN IMPOSED RESTED IN LARGE MEASURE ON THE SPECIFIC
CONGRESSIONAL HISTORY WHICH THE COURT WAS AT PAINS TO SPELL OUT IN
DETAIL.  SEE 328 U.S., AT 308-312.  MOST RECENTLY, IN TROP V. DULLES,
356 U.S. 86, WHICH HELD UNCONSTITUTIONAL A STATUTE PROVIDING FOR THE
EXPATRIATION OF ONE WHO HAD BEEN SENTENCED BY A COURT-MARTIAL TO
DISMISSAL OR DISHONORABLE DISCHARGE FOR WARTIME DESERTION, THE MAJORITY
OF THE COURT CHARACTERIZED THE STATUTE AS PUNITIVE.  HOWEVER, NO SINGLE
OPINION COMMANDED THE SUPPORT OF A MAJORITY.  THE PLURALITY OPINION
RESTED ITS DETERMINATION, AT LEAST IN PART, ON ITS INABILITY TO DISCERN
ANY ALTERNATIVE PURPOSE WHICH THE STATUTE COULD BE THOUGHT TO SERVE. 
ID., AT 97.  THE CONCURRING OPINION FOUND IN THE SPECIFIC HISTORICAL
EVOLUTION OF THE PROVISION IN QUESTION COMPELLING EVIDENCE OF PUNITIVE
INTENT.  ID., AT 107-109. 

IT IS THUS APPARENT THAT, THOUGH THE GOVERNING CRITERION MAY BE
READILY STATED, EACH CASE HAS TURNED ON ITS OWN HIGHLY PARTICULARIZED
CONTEXT.  WHERE NO PERSUASIVE SHOWING OF A PURPOSE "TO REACH THE
PERSON, NOT THE CALLING," CUMMINGS V. MISSOURI, SUPRA, AT 320, HAS BEEN
MADE, THE COURT HAS NOT HAMPERED LEGISLATIVE REGULATION OF ACTIVITIES
WITHIN ITS SPHERE OF CONCERN, DESPITE THE OFTEN-SEVERE EFFECTS SUCH
REGULATION HAS HAD ON THE PERSONS SUBJECT TO IT.  (FN9)  THUS,
DEPORTATION HAS BEEN HELD TO BE NOT PUNISHMENT, BUT AN EXERCISE OF THE
PLENARY POWER OF CONGRESS TO FIX THE CONDITIONS UNDER WHICH ALIENS ARE
TO BE PERMITTED TO ENTER AND REMAIN IN THIS COUNTRY.  FONG YUE TING V.
UNITED STATES, 149 U.S. 698, 730; SEE GALVAN V. PRESS, 347 U.S. 522,
530-531.  SIMILARLY, THE SETTING BY A STATE OF QUALIFICATIONS FOR THE
PRACTICE OF MEDICINE, AND THEIR MODIFICATION FROM TIME TO TIME, IS AN
INCIDENT OF THE STATE'S POWER TO PROTECT THE HEALTH AND SAFETY OF ITS
CITIZENS, AND ITS DECISION TO BAR FROM PRACTICE PERSONS WHO COMMIT OR
HAVE COMMITTED A FELONY IS TAKEN AS EVIDENCING AN INTENT TO EXERCISE
THAT REGULATORY POWER, AND NOT A PURPOSE TO ADD TO THE PUNISHMENT OF EX
FELONS.  HAWKER V. NEW YORK, 170 U.S. 189.  SEE DE VEAU V. BRAISTED,
SUPRA (REGULATION OF CRIME ON THE WATERFRONT THROUGH DISQUALIFICATION
OF EX-FELONS FROM HOLDING UNION OFFICE).  CF. HELVERING V. MITCHELL,
303 U.S. 391, 397-401, HOLDING THAT, WITH RESPECT TO DEFICIENCIES DUE
TO FRAUD, A 50 PERCENT ADDITION TO THE TAX IMPOSED WAS NOT PUNISHMENT
SO AS TO PREVENT, UPON PRINCIPLES OF DOUBLE JEOPARDY, ITS ASSESSMENT
AGAINST ONE ACQUITTED OF TAX EVASION. 

TURNING, THEN, TO THE PARTICULAR STATUTORY PROVISION BEFORE US,
APPELLEE CANNOT SUCCESSFULLY CONTEND THAT THE LANGUAGE AND STRUCTURE OF
SEC. 202(N), OR THE NATURE OF THE DEPRIVATION, REQUIRES US TO RECOGNIZE
A PUNITIVE DESIGN.  CF. WONG WING V. UNITED STATES, SUPRA
(IMPRISONMENT, AT HARD LABOR UP TO ONE YEAR, OF PERSON FOUND TO BE
UNLAWFULLY IN THE COUNTRY).  HERE THE SANCTION IS THE MERE DENIAL OF A
NONCONTRACTUAL GOVERNMENTAL BENEFIT.  NO AFFIRMATIVE DISABILITY OR
RESTRAINT IS IMPOSED, AND CERTAINLY NOTHING APPROACHING THE "INFAMOUS
PUNISHMENT" OF IMPRISONMENT, AS IN WONG WING, ON WHICH GREAT RELIANCE
IS MISTAKENLY PLACED.  MOREOVER, FOR REASONS ALREADY GIVEN (ANTE, PP.
611-612), IT CANNOT BE SAID, AS WAS SAID OF THE STATUTE IN CUMMINGS V.
MISSOURI, SUPRA, AT 319; SEE DENT V. WEST VIRGINIA, 129 U.S. 114, 126,
THAT THE DISQUALIFICATION OF CERTAIN DEPORTEES FROM RECEIPT OF SOCIAL
SECURITY BENEFITS WHILE THEY ARE NOT LAWFULLY IN THIS COUNTRY BEARS NO
RATIONAL CONNECTION TO THE PURPOSES OF THE LEGISLATION OF WHICH IT IS A
PART, AND MUST WITHOUT MORE THEREFORE BE TAKEN AS EVIDENCING A
CONGRESSIONAL DESIRE TO PUNISH.  APPELLEE ARGUES, HOWEVER, THAT THE
HISTORY AND SCOPE OF SEC. 202(N) PROVE THAT NO SUCH POSTULATED PURPOSE
CAN BE THOUGHT TO HAVE MOTIVATED THE LEGISLATURE, AND THAT THEY
PERSUASIVELY SHOW THAT A PUNITIVE PURPOSE IN FACT LAY BEHIND THE
STATUTE.   WE DO NOT AGREE. 

WE OBSERVE INITIALLY THAT ONLY THE CLEAREST PROOF COULD SUFFICE TO
ESTABLISH THE UNCONSTITUTIONALITY OF A STATUTE ON SUCH A GROUND. 
JUDICIAL INQUIRIES INTO CONGRESSIONAL MOTIVES ARE AT BEST A HAZARDOUS
MATTER, AND WHEN THAT INQUIRY SEEKS TO GO BEHIND OBJECTIVE
MANIFESTATIONS IT BECOMES A DUBIOUS AFFAIR INDEED.  MOREOVER, THE
PRESUMPTION OF CONSTITUTIONALITY WITH WHICH THIS ENACTMENT, LIKE ANY
OTHER, COMES TO US FORBIDS US LIGHTLY TO CHOOSE THAT READING OF THE
STATUTE'S SETTING WHICH WILL INVALIDATE IT OVER THAT WHICH WILL SAVE
IT.  "IT IS NOT ON SLIGHT IMPLICATION AND VAGUE CONJECTURE THAT THE
LEGISLATURE IS TO BE PRONOUNCED TO HAVE TRANSCENDED ITS POWERS, AND ITS
ACTS TO BE CONSIDERED AS VOID."  FLETCHER V. PECK, 6 CRANCH 87, 128. 

OF THE SOCIAL SECURITY PROGRAM.  THE PROVISION ORIGINATED IN THE HOUSE
OF REPRESENTATIVES.  H.R. 9366, 83D CONG., 2D SESS., SEC. 108.  THE
DISCUSSION IN THE HOUSE COMMITTEE REPORT, H.R. REP. NO. 1698, 83D
CONG., 2D SESS., PP. 5, 25, 77, DOES NOT EXPRESS THE PURPOSE OF THE
STATUTE.  HOWEVER, IT DOES SAY THAT THE TERMINATION OF BENEFITS WOULD
APPLY TO THOSE PERSONS WHO WERE "DEPORTED FROM THE UNITED STATES
BECAUSE OF ILLEGAL ENTRY, CONVICTION OF A CRIME, OR SUBVERSIVE ACTIVITY
...  ."  ID., AT 25.  IT WAS EVIDENTLY THE THOUGHT THAT SUCH WAS THE
SCOPE OF THE STATUTE RESULTING FROM ITS APPLICATION TO DEPORTATION
UNDER THE 14 NAMED PARAGRAPHS OF SEC. 241(A) OF THE IMMIGRATION AND
NATIONALITY ACT.  ID., AT 77.  (FN10) 

THE SENATE COMMITTEE REJECTED THE PROPOSAL FOR THE STATED REASON THAT
IT HAD "NOT HAD AN OPPORTUNITY TO GIVE SUFFICIENT STUDY TO ALL THE
POSSIBLE IMPLICATIONS OF THIS PROVISION, WHICH INVOLVES TERMINATION OF
BENEFIT RIGHTS UNDER THE CONTRIBUTORY PROGRAM OF OLD-AGE AND SURVIVORS
INSURANCE  ...  ."  S. REP. NO. 1987, 83D CONG., 2D SESS., P. 23; SEE
ALSO ID., AT 76.  HOWEVER, IN CONFERENCE, THE PROPOSAL WAS RESTORED IN
MODIFIED FORM, (FN11) AND AS MODIFIED WAS ENACTED AS SEC. 202(N).  SEE
H.R. CONF. REP. NO. 2679, 83D CONG., 2D SESS., P. 18. 

APPELLEE ARGUES THAT THIS HISTORY DEMONSTRATES THAT CONGRESS WAS NOT
CONCERNED WITH THE FACT OF A BENEFICIARY'S DEPORTATION - WHICH IT IS
CLAIMED ALONE WOULD JUSTIFY THIS LEGISLATION AS BEING PURSUANT TO A
POLICY RELEVANT TO REGULATION OF THE SOCIAL SECURITY SYSTEM - BUT THAT
IT SOUGHT TO REACH CERTAIN GROUNDS FOR DEPORTATION, THUS EVIDENCING A
PUNITIVE INTENT.  (FN12)  IT IS IMPOSSIBLE TO FIND IN THE MEAGRE
HISTORY THE UNMISTAKABLE EVIDENCE OF PUNITIVE INTENT WHICH, UNDER
PRINCIPLES ALREADY DISCUSSED, IS REQUIRED BEFORE A CONGRESSIONAL
ENACTMENT OF THIS KIND MAY BE STRUCK DOWN.  EVEN WERE THAT HISTORY TO
BE TAKEN AS EVIDENCING CONGRESS' CONCERN WITH THE GROUNDS, RATHER THAN
THE FACT, OF DEPORTATION, WE DO NOT THINK THAT THIS, STANDING ALONE,
WOULD SUFFICE TO ESTABLISH A PUNITIVE PURPOSE.  THIS WOULD STILL BE A
FAR CRY FROM THE SITUATIONS INVOLVED IN SUCH CASES AS CUMMINGS, WONG
WING, AND GARLAND (SEE ANTE, P. 617), AND FROM THAT IN LOVETT, SUPRA,
WHERE THE LEGISLATION WAS ON ITS FACE AIMED AT PARTICULAR INDIVIDUALS. 
THE LEGISLATIVE RECORD, HOWEVER, FALLS SHORT OF ANY PERSUASIVE SHOWING
THAT CONGRESS WAS IN FACT CONCERNED ALONE WITH THE GROUNDS OF
DEPORTATION.  TO BE SURE CONGRESS DID NOT APPLY THE TERMINATION
PROVISION TO ALL DEPORTEES.  HOWEVER, IT IS EVIDENT THAT NEITHER DID IT
REST THE OPERATION OF THE STATUTE ON THE OCCURRENCE OF THE UNDERLYING
ACT.  THE FACT OF DEPORTATION ITSELF REMAINED AN ESSENTIAL CONDITION
FOR LOSS OF BENEFITS, AND EVEN IF A BENEFICIARY WERE SAVED FROM
DEPORTATION ONLY THROUGH DISCRETIONARY SUSPENSION BY THE ATTORNEY
GENERAL UNDER SEC. 244 OF THE IMMIGRATION AND NATIONALITY ACT (66 STAT.
214, 8 U.S.C. SEC. 1254), SEC. 202(N) WOULD NOT REACH HIM. 

MOREOVER, THE GROUNDS FOR DEPORTATION REFERRED TO IN THE COMMITTEE
REPORT EMBRACE THE GREAT MAJORITY OF THOSE DEPORTED, AS IS EVIDENT FROM
AN EXAMINATION OF THE FOUR OMITTED GROUNDS, SUMMARIZED IN THE MARGIN. 
(FN13)  INFERENCES DRAWN FROM THE OMISSION OF THOSE GROUNDS CANNOT
ESTABLISH, TO THE DEGREE OF CERTAINTY REQUIRED, THAT CONGRESSIONAL
CONCERN WAS WHOLLY WITH THE ACTS LEADING TO DEPORTATION, AND NOT WITH
THE FACT OF DEPORTATION.  (FN14)  TO HOLD OTHERWISE WOULD BE TO REST ON
THE "SLIGHT IMPLICATION AND VAGUE CONJECTURE" AGAINST WHICH CHIEF
JUSTICE MARSHALL WARNED.  FLETCHER V. PECK, SUPRA, AT 128. 

THE SAME ANSWER MUST BE MADE TO ARGUMENTS DRAWN FROM THE FAILURE OF
CONGRESS TO APPLY SEC.  202(N) TO BENEFICIARIES VOLUNTARILY RESIDING
ABROAD.  BUT CF. SEC. 202(T), ANTE, NOTE 5.  CONGRESS MAY HAVE FAILED
TO CONSIDER SUCH PERSONS; OR IT MAY HAVE THOUGHT THEIR NUMBER TOO
SLIGHT, OR THE PERMANENCE OF THEIR VOLUNTARY RESIDENCE ABROAD TOO
UNCERTAIN, TO WARRANT APPLICATION OF THE STATUTE TO THEM, WITH ITS
ATTENDANT ADMINISTRATIVE PROBLEMS OF SUPERVISION AND ENFORCEMENT. 
AGAIN, WE CANNOT WITH CONFIDENCE REJECT ALL THOSE ALTERNATIVES WHICH
IMAGINATIVENESS CAN BRING TO MIND, SAVE THAT ONE WHICH MIGHT REQUIRE
THE INVALIDATION OF THE STATUTE.  REVERSED. 

FN1  SECTION 202(N) PROVIDES AS FOLLOWS: 

"(N)(1)  IF ANY INDIVIDUAL IS (AFTER THE DATE OF ENACTMENT OF THIS
SUBSECTION) DEPORTED UNDER PARAGRAPH (1), (2), (4), (5), (6), (7),
(10), (11), (12), (14), (15), (16), (17), OR (18) OF SECTION 241(A) OF
THE IMMIGRATION AND NATIONALITY ACT, THEN, NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS TITLE: 

"(A)  NO MONTHLY BENEFIT UNDER THIS SECTION OR SECTION 223 (42 U.S.C.
SEC. 423, RELATING TO "DISABILITY INSURANCE BENEFITS") SHALL BE PAID TO
SUCH INDIVIDUAL, ON THE BASIS OF HIS WAGES AND SELF-EMPLOYMENT INCOME,
FOR ANY MONTH OCCURRING (I) AFTER THE MONTH IN WHICH THE SECRETARY IS
NOTIFIED BY THE ATTORNEY GENERAL THAT SUCH INDIVIDUAL HAS BEEN SO
DEPORTED, AND (II) BEFORE THE MONTH IN WHICH SUCH INDIVIDUAL IS
THEREAFTER LAWFULLY ADMITTED TO THE UNITED STATES FOR PERMANENT
RESIDENCE:    "(B)  IF NO BENEFIT COULD BE PAID TO SUCH INDIVIDUAL (OR
IF NO BENEFIT COULD BE PAID TO HIM IF HE WERE ALIVE) FOR ANY MONTH BY
REASON OF SUBPARAGRAPH (A), NO MONTHLY BENEFIT UNDER THIS SECTION SHALL
BE PAID, ON THE BASIS OF HIS WAGES AND SELF-EMPLOYMENT INCOME, FOR SUCH
MONTH TO ANY OTHER PERSON WHO IS NOT A CITIZEN OF THE UNITED STATES AND
IS OUTSIDE THE UNITED STATES FOR ANY PART OF SUCH MONTH, AND: 

"(C)  NO LUMP-SUM DEATH PAYMENT SHALL BE MADE ON THE BASIS OF SUCH
INDIVIDUAL'S WAGES AND SELF-EMPLOYMENT INCOME IF HE DIES (I) IN OR
AFTER THE MONTH IN WHICH SUCH NOTICE IS RECEIVED, AND (II) BEFORE THE
MONTH IN WHICH HE IS THEREAFTER LAWFULLY ADMITTED TO THE UNITED STATES
FOR PERMANENT RESIDENCE. 

"SECTION 203(B) AND (C) OF THIS ACT SHALL NOT APPLY WITH RESPECT TO
ANY SUCH INDIVIDUAL FOR ANY MONTH FOR WHICH NO MONTHLY BENEFIT MAY BE
PAID TO HIM BY REASON OF THIS PARAGRAPH. 

"(2)  AS SOON AS PRACTICABLE AFTER THE DEPORTATION OF ANY INDIVIDUAL
UNDER ANY OF THE PARAGRAPHS OF SECTION 241(A) OF THE IMMIGRATION AND
NATIONALITY ACT ENUMERATED IN PARAGRAPH (1) IN THIS SUBSECTION, THE
ATTORNEY GENERAL SHALL NOTIFY THE SECRETARY OF SUCH DEPORTATION." 

THE PROVISIONS OF SEC. 241(A) OF THE IMMIGRATION AND NATIONALITY ACT
ARE SUMMARIZED IN NOTES 10, 13, POST, PP. 618, 620. 

FN2  UNDER PARAGRAPH (1)(B) OF SEC. 202(N) (SEE NOTE 1, ANTE),
APPELLEE'S WIFE, BECAUSE OF HER RESIDENCE HERE, HAS REMAINED ELIGIBLE
FOR BENEFITS PAYABLE TO HER AS THE WIFE OF AN INSURED INDIVIDUAL.  SEE
SEC. 202(B), 53 STAT. 1364, AS AMENDED, 42 U.S.C. SEC. 402(B). 

FN3 SECTION 205(G) PROVIDES AS FOLLOWS: 

"(G)  ANY INDIVIDUAL, AFTER ANY FINAL DECISION OF THE BOARD MADE
AFTER A HEARING TO WHICH HE WAS A PARTY, IRRESPECTIVE OF THE AMOUNT IN
CONTROVERSY, MAY OBTAIN A REVIEW OF SUCH DECISION BY A CIVIL ACTION
COMMENCED WITHIN SIXTY DAYS AFTER THE MAILING TO HIM OF NOTICE OF SUCH
DECISION OR WITHIN SUCH FURTHER TIME AS THE BOARD MAY ALLOW  ...  .  AS
PART OF ITS ANSWER THE BOARD SHALL FILE A CERTIFIED COPY OF THE
TRANSCRIPT OF THE RECORD INCLUDING THE EVIDENCE UPON WHICH THE FINDINGS
AND DECISION COMPLAINED OF ARE BASED.  THE COURT SHALL HAVE POWER TO
ENTER, UPON THE PLEADINGS AND TRANSCRIPT OF THE RECORD, A JUDGMENT
AFFIRMING, MODIFYING, OR REVERSING THE DECISION OF THE BOARD, WITH OR
WITHOUT REMANDING THE CAUSE FOR A REHEARING.  THE FINDINGS OF THE BOARD
AS TO ANY FACT, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE
CONCLUSIVE  ...  .  THE JUDGMENT OF THE COURT SHALL BE FINAL EXCEPT
THAT IT SHALL BE SUBJECT TO REVIEW IN THE SAME MANNER AS A JUDGMENT IN
OTHER CIVIL ACTIONS." 

FN4  IN ADDITION, ELIGIBILITY FOR DISABILITY INSURANCE BENEFITS IS OF
COURSE SUBJECT TO THE FURTHER CONDITION OF THE INCURRING OF A
DISABILITY AS DEFINED IN THE ACT.  SEC. 223, 42 U.S.C.  SEC. 423. 
SECONDARY BENEFICIARIES MUST MEET THE TESTS OF FAMILY RELATIONSHIP TO
THE WAGE EARNER SET FORTH IN THE ACT.  SEC. 202(B)-(H), 42 U.S.C. SEC.
402(B)-(H). 

FN5  THE ACT DOES NOT PROVIDE FOR THE TERMINATION OF BENEFITS OF NON
RESIDENT CITIZENS, OR OF SOME ALIENS WHO LEAVE THE COUNTRY VOLUNTARILY
ALTHOUGH MANY NONRESIDENT ALIENS DO LOSE THEIR ELIGIBILITY BY VIRTUE
OF THE PROVISIONS OF SEC. 202(T), 70 STAT. 835, AS AMENDED, 42 U.S.C.
SEC. 402(T) - OR OF ALIENS DEPORTED PURSUANT TO PARAGRAPHS 3, 8, 9, OR
13 OF THE 18 PARAGRAPHS OF SEC. 241(A) OF THE IMMIGRATION AND
NATIONALITY ACT.  SEE NOTE 13, POST. 

FN6  ART. I, SEC. 9, CL. 3: 

"NO BILL OF ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED." 

ART. III, SEC. 2, CL. 3: 

"THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY
JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID CRIMES
SHALL HAVE BEEN COMMITTED  ...  ." 

AMEND. VI: 

"IN ALL CRIMINAL PROSECUTIONS THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE
BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOUR; AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

FN7  APPELLEE ALSO ADDS, BUT HARDLY ARGUES, THE CONTENTION THAT HE
HAS BEEN DEPRIVED OF HIS RIGHTS UNDER THE FIRST AMENDMENT, SINCE THE
ADVERSE CONSEQUENCES STEMMED FROM "MERE PAST MEMBERSHIP" IN THE
COMMUNIST PARTY.  THIS CONTENTION, WHICH IS NO MORE THAN A COLLATERAL
ATTACK ON APPELLEE'S DEPORTATION, IS NOT OPEN TO HIM. 

FN8  SEE ALSO PIERCE V. CARSKADON, 16 WALL.  234.  A WEST VIRGINIA
STATUTE PROVIDING THAT A NONRESIDENT WHO HAD SUFFERED A JUDGMENT IN AN
ACTION COMMENCED BY ATTACHMENT, BUT IN WHICH HE HAD NOT BEEN PERSONALLY
SERVED AND DID NOT APPEAR, COULD WITHIN ONE YEAR PETITION THE COURT FOR
A REOPENING OF THE JUDGMENT AND A TRIAL ON THE MERITS, WAS AMENDED IN
1865 SO AS TO CONDITION THAT RIGHT ON THE TAKING OF AN EXCULPATORY OATH
THAT THE DEFENDANT HAD NEVER SUPPORTED THE CONFEDERACY.  ON THE
AUTHORITY OF CUMMINGS AND GARLAND, THE AMENDMENT WAS INVALIDATED. 

FN9  AS PRIOR DECISIONS MAKE CLEAR, COMPARE EX PARTE GARLAND, SUPRA,
WITH HAWKER V. NEW YORK, SUPRA, THE SEVERITY OF A SANCTION IS NOT
DETERMINATIVE OF ITS CHARACTER AS "PUNISHMENT." 

FN10  PARAGRAPHS (1), (2), AND (10) OF SEC. 241(A) RELATE TO UNLAWFUL
ENTRY, OR ENTRY NOT COMPLYING WITH CERTAIN CONDITIONS; PARAGRAPHS (6)
AND (7) APPLY TO "SUBVERSIVE" AND RELATED ACTIVITIES; THE REMAINDER OF
THE INCLUDED PARAGRAPHS ARE CONCERNED WITH CONVICTIONS OF DESIGNATED
CRIMES, OR THE COMMISSION OF ACTS RELATED TO THEM, SUCH AS NARCOTICS
ADDICTION OR PROSTITUTION. 

FN11  FOR EXAMPLE, UNDER THE HOUSE VERSION TERMINATION OF BENEFITS OF
A DEPORTEE WOULD ALSO HAVE TERMINATED BENEFITS PAID TO SECONDARY
BENEFICIARIES BASED ON THE EARNING RECORDS OF THE DEPORTEE.  THE
CONFERENCE PROPOSAL LIMITED THIS EFFECT TO SECONDARY BENEFICIARIES WHO
WERE NONRESIDENT ALIENS.  SEE NOTE 2, ANTE. 

FN12  APPELLEE ALSO RELIES ON THE JUXTAPOSITION OF THE PROPOSED SEC.
108 AND CERTAIN OTHER PROVISIONS, SOME OF WHICH WERE ENACTED AND SOME
OF WHICH WERE NOT.  THIS ARGUMENT IS TOO CONJECTURAL TO WARRANT
DISCUSSION.  IN ADDITION, RELIANCE IS PLACED ON A LETTER WRITTEN TO THE
SENATE FINANCE COMMITTEE BY APPELLANT'S PREDECESSOR IN OFFICE, OPPOSING
THE ENACTMENT OF WHAT IS NOW SEC. 202(U) OF THE ACT, 70 STAT. 838, 42
U.S.C. SEC. 402(U), ON THE GROUND THAT THE SECTION WAS "IN THE NATURE
OF A PENALTY AND BASED ON CONSIDERATIONS FOREIGN TO THE OBJECTIVES" OF
THE PROGRAM.  SOCIAL SECURITY AMENDMENTS OF 1955, HEARINGS BEFORE THE
SENATE COMMITTEE ON FINANCE, 84TH CONG., 2D SESS., P. 1319.  THE
SECRETARY WENT ON TO SAY THAT "PRESENT LAW RECOGNIZES ONLY THREE
NARROWLY LIMITED EXCEPTIONS (OF WHICH SEC. 202(N) IS ONE) TO THE BASIC
PRINCIPLE THAT BENEFITS ARE PAID WITHOUT REGARD TO THE ATTITUDES,
OPINIONS, BEHAVIOR, OR PERSONAL CHARACTERISTICS OF THE INDIVIDUAL  ...
."  IT SHOULD BE OBSERVED, HOWEVER, THAT THE SECRETARY DID NOT SPEAK OF
SEC. 202(N) AS A PENALTY, AS HE DID OF THE PROPOSED SEC. 202(U).  THE
LATTER PROVISION IS CONCEDEDLY PENAL, AND APPLIES ONLY PURSUANT TO A
JUDGMENT OF A COURT IN A CRIMINAL CASE. 

FN13  THEY ARE:  (1) PERSONS INSTITUTIONALIZED AT PUBLIC EXPENSE
WITHIN FIVE YEARS AFTER ENTRY BECAUSE OF "MENTAL DISEASE, DEFECT, OR
DEFICIENCY" NOT SHOWN TO HAVE ARISEN SUBSEQUENT TO ADMISSION (SEC.
241(A)(3)); (2) PERSONS BECOMING A PUBLIC CHARGE WITHIN FIVE YEARS
AFTER ENTRY FROM CAUSES NOT SHOWN TO HAVE ARISEN SUBSEQUENT TO
ADMISSION SEC. 241(A)(8)); (3) PERSONS ADMITTED AS NONIMMIGRANTS (SEE
SEC. 101(A)(15), 66 STAT. 167, 8 U.S.C. SEC. 1101(A)(15)) WHO FAIL TO
MAINTAIN, OR COMPLY WITH THE CONDITIONS OF, SUCH STATUS (SEC.
241(A)(9)); (4) PERSONS KNOWINGLY AND FOR GAIN INDUCING OR AIDING,
PRIOR TO OR WITHIN FIVE YEARS AFTER ENTRY, ANY OTHER ALIEN TO ENTER OR
ATTEMPT TO ENTER UNLAWFULLY (SEC. 241(A)(13)). 

FN14  WERE WE TO ENGAGE IN SPECULATION, IT WOULD NOT BE DIFFICULT TO
CONJECTURE THAT CONGRESS MAY HAVE BEEN LED TO EXCLUDE THESE FOUR
GROUNDS OF DEPORTATION OUT OF COMPASSIONATE OR DE MINIMIS
CONSIDERATIONS. 

MR. JUSTICE BLACK, DISSENTING. 

FOR THE REASONS STATED HERE AND IN THE DISSENTS OF MR. JUSTICE
DOUGLAS AND MR. JUSTICE BRENNAN I AGREE WITH THE DISTRICT COURT THAT
THE UNITED STATES IS DEPRIVING APPELLEE, EPHRAM NESTOR, OF HIS
STATUTORY RIGHT TO OLD-AGE BENEFITS IN VIOLATION OF THE UNITED STATES
CONSTITUTION. 

NESTOR CAME TO THIS COUNTRY FROM BULGARIA IN 1913 AND LIVED HERE
CONTINUOUSLY FOR 43 YEARS, UNTIL JULY 1956.  HE WAS THEN DEPORTED FROM
THIS COUNTRY FOR HAVING BEEN A COMMUNIST FROM 1933 TO 1939.  AT THAT
TIME MEMBERSHIP IN THE COMMUNIST PARTY AS SUCH WAS NOT ILLEGAL AND WAS
NOT EVEN A STATUTORY GROUND FOR DEPORTATION.  FROM DECEMBER 1936 TO
JANUARY 1955 NESTOR AND HIS EMPLOYERS MADE REGULAR PAYMENTS TO THE
GOVERNMENT UNDER THE FEDERAL INSURANCE CONTRIBUTIONS ACT, 26 U.S.C.
SECS. 3101-3125.   THESE FUNDS WENT TO A SPECIAL FEDERAL OLD-AGE AND
SURVIVORS INSURANCE TRUST FUND UNDER 49 STAT. 622, 53 STAT. 1362, AS
AMENDED, 42 U.S.C. SEC. 401, IN RETURN FOR WHICH NESTOR, LIKE MILLIONS
OF OTHERS, EXPECTED TO RECEIVE PAYMENTS WHEN HE REACHED THE STATUTORY
AGE.  IN 1954, 15 YEARS AFTER NESTOR HAD LAST BEEN A COMMUNIST, AND 18
YEARS AFTER HE BEGAN TO MAKE PAYMENTS INTO THE OLD-AGE SECURITY FUND,
CONGRESS PASSED A LAW PROVIDING, AMONG OTHER THINGS, THAT ANY PERSON
WHO HAD BEEN DEPORTED FROM THIS COUNTRY BECAUSE OF PAST COMMUNIST
MEMBERSHIP UNDER 66 STAT. 205, 8 U.S.C. SEC. 1251(A)(6)(C) SHOULD BE
WHOLLY CUT OFF FROM ANY BENEFITS OF THE FUND TO WHICH HE HAD
CONTRIBUTED UNDER THE LAW.  68 STAT. 1083, 42 U.S.C. SEC. 402(N). 
AFTER THE GOVERNMENT DEPORTED NESTOR IN 1956 IT NOTIFIED HIS WIFE, WHO
HAD REMAINED IN THIS COUNTRY, THAT HE WAS CUT OFF AND NO FURTHER
PAYMENTS WOULD BE MADE TO HIM.  THIS ACTION, IT SEEMS TO ME, TAKES
NESTOR'S INSURANCE WITHOUT JUST COMPENSATION AND IN VIOLATION OF THE
DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  MOREOVER, IT IMPOSES AN EX
POST FACTO LAW AND BILL OF ATTAINDER BY STAMPING HIM, WITHOUT A COURT
TRIAL, AS UNWORTHY TO RECEIVE THAT FOR WHICH HE HAS PAID AND WHICH THE
GOVERNMENT PROMISED TO PAY HIM.  THE FACT THAT THE COURT IS SUSTAINING
THIS ACTION INDICATES THE EXTENT TO WHICH PEOPLE ARE WILLING TO GO
THESE DAYS TO OVERLOOK VIOLATIONS OF THE CONSTITUTION PERPETRATED
AGAINST ANYONE WHO HAS EVER EVEN INNOCENTLY BELONGED TO THE COMMUNIST
PARTY. 

                                              I. 

IN LYNCH V. UNITED STATES, 292 U.S. 571, THIS COURT UNANIMOUSLY HELD
THAT CONGRESS WAS WITHOUT POWER TO REPUDIATE AND ABROGATE IN WHOLE OR
IN PART ITS PROMISES TO PAY AMOUNTS CLAIMED BY SOLDIERS UNDER THE WAR
RISK INSURANCE ACT OF 1917, SECS. 400-405, 40 STAT. 409.  THIS COURT
HELD THAT SUCH A REPUDIATION WAS INCONSISTENT WITH THE PROVISION OF THE
FIFTH AMENDMENT THAT "NO PERSON SHALL BE  ...  DEPRIVED OF LIFE,
LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR SHALL PRIVATE
PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION."  THE
COURT TODAY PUTS THE LYNCH CASE ASIDE ON THE GROUND THAT "IT IS HARDLY
PROFITABLE TO ENGAGE IN CONCEPTUALIZATIONS REGARDING 'EARNED RIGHTS'
AND 'GRATUITIES.'"  FROM THIS SOUND PREMISE THE COURT GOES ON TO SAY
THAT WHILE "THE 'RIGHT' TO SOCIAL SECURITY BENEFITS IS IN ONE SENSE
'EARNED,'" YET THE GOVERNMENT'S INSURANCE SCHEME NOW BEFORE US RESTS
NOT ON THE IDEA OF THE CONTRIBUTORS TO THE FUND EARNING SOMETHING, BUT
SIMPLY PROVIDES THAT THEY MAY "JUSTLY CALL" UPON THE GOVERNMENT "IN
THEIR LATER YEARS, FOR PROTECTION FROM 'THE RIGORS OF THE POOR HOUSE AS
WELL AS FROM THE HAUNTING FEAR THAT SUCH A LOT AWAITS THEM WHEN
JOURNEY'S END IS NEAR.'"  THESE ARE NICE WORDS BUT THEY CANNOT CONCEAL
THE FACT THAT THEY SIMPLY TELL THE CONTRIBUTORS TO THIS INSURANCE FUND
THAT DESPITE THEIR OWN AND THEIR EMPLOYERS' PAYMENTS THE GOVERNMENT, IN
PAYING THE BENEFICIARIES OUT OF THE FUND, IS MERELY GIVING THEM
SOMETHING FOR NOTHING AND CAN STOP DOING SO WHEN IT PLEASES.  THIS, IN
MY JUDGMENT, REVEALS A COMPLETE MISUNDERSTANDING OF THE PURPOSE
CONGRESS AND THE COUNTRY HAD IN PASSING THAT LAW.  IT WAS THEN
GENERALLY AGREED, AS IT IS TODAY, THAT IT IS NOT DESIRABLE THAT AGED
PEOPLE THINK OF THE GOVERNMENT AS GIVING THEM SOMETHING FOR NOTHING. 
AN EXCELLENT STATEMENT OF THIS VIEW, QUOTED BY MR. JUSTICE DOUGLAS IN
ANOTHER CONNECTION, WAS MADE BY SENATOR GEORGE, THE CHAIRMAN OF THE
FINANCE COMMITTEE WHEN THE SOCIAL SECURITY ACT WAS PASSED, AND ONE VERY
FAMILIAR WITH THE PHILOSOPHY THAT BROUGHT IT ABOUT: 

"IT COMPORTS BETTER THAN ANY SUBSTITUTE WE HAVE DISCOVERED WITH THE
AMERICAN CONCEPT THAT FREE MEN WANT TO EARN THEIR SECURITY AND NOT ASK
FOR DOLES - THAT WHAT IS DUE AS A MATTER OF EARNED RIGHT IS FAR BETTER
THAN A GRATUITY  ...  . 

     *         *         *         *       * 

"SOCIAL SECURITY IS NOT A HANDOUT; IT IS NOT CHARITY; IT IS NOT
RELIEF.  IT IS AN EARNED RIGHT BASED UPON THE CONTRIBUTIONS AND
EARNINGS OF THE INDIVIDUAL.  AS AN EARNED RIGHT, THE INDIVIDUAL IS
ELIGIBLE TO RECEIVE HIS BENEFIT IN DIGNITY AND SELF-RESPECT."  102
CONG. REC. 15110. 

THE PEOPLE COVERED BY THIS ACT ARE NOW ABLE TO RELY WITH COMPLETE
ASSURANCE ON THE FACT THAT THEY WILL BE COMPELLED TO CONTRIBUTE
REGULARLY TO THIS FUND WHENEVER EACH CONTRIBUTION FALLS DUE.  I BELIEVE
THEY ARE ENTITLED TO RELY WITH THE SAME ASSURANCE ON GETTING THE
BENEFITS THEY HAVE PAID FOR AND HAVE BEEN PROMISED, WHEN THEIR
DISABILITY OR AGE MAKES THEIR INSURANCE PAYABLE UNDER THE TERMS OF THE
LAW.  THE COURT DID NOT PERMIT THE GOVERNMENT TO BREAK ITS PLIGHTED
FAITH WITH THE SOLDIERS IN THE LYNCH CASE; IT SAID THE CONSTITUTION
FORBADE SUCH GOVERNMENTAL CONDUCT.  I WOULD SAY PRECISELY THE SAME
THING HERE.    THE COURT CONSOLES THOSE WHOSE INSURANCE IS TAKEN AWAY
TODAY, AND OTHERS WHO MAY SUFFER THE SAME FATE IN THE FUTURE, BY SAYING
THAT A DECISION REQUIRING THE SOCIAL SECURITY SYSTEM TO KEEP FAITH
"WOULD DEPRIVE IT OF THE FLEXIBILITY AND BOLDNESS IN ADJUSTMENT TO EVER
CHANGING CONDITIONS WHICH IT DEMANDS."  PEOPLE WHO PAY PREMIUMS FOR
INSURANCE USUALLY THINK THEY ARE PAYING FOR INSURANCE, NOT FOR
"FLEXIBILITY AND BOLDNESS."  I CANNOT BELIEVE THAT ANY PRIVATE
INSURANCE COMPANY IN AMERICA WOULD BE PERMITTED TO REPUDIATE ITS
MATURED CONTRACTS WITH ITS POLICYHOLDERS WHO HAVE REGULARLY PAID ALL
THEIR PREMIUMS IN RELIANCE UPON THE GOOD FAITH OF THE COMPANY.  IT IS
TRUE, AS THE COURT SAYS, THAT THE ORIGINAL ACT CONTAINED A CLAUSE,
STILL IN FORCE, THAT EXPRESSLY RESERVES TO CONGRESS "THE RIGHT TO
ALTER, AMEND, OR REPEAL ANY PROVISION" OF THE ACT.  SEC. 1104, 49 STAT.
648, 42 U.S.C. SEC. 1304.  CONGRESS, OF COURSE PROPERLY RETAINED THAT
POWER.  IT COULD REPEAL THE ACT SO AS TO CEASE TO OPERATE ITS OLD-AGE
INSURANCE ACTIVITIES FOR THE FUTURE.  THIS MEANS THAT IT COULD STOP
COVERING NEW PEOPLE, AND EVEN STOP INCREASING ITS OBLIGATIONS TO ITS
OLD CONTRIBUTORS.  BUT THAT IS QUITE DIFFERENT FROM DISAPPOINTING THE
JUST EXPECTATIONS OF THE CONTRIBUTORS TO THE FUND WHICH THE GOVERNMENT
HAS COMPELLED THEM AND THEIR EMPLOYERS TO PAY ITS TREASURY.  THERE IS
NOTHING "CONCEPTUALISTIC" ABOUT SAYING, AS THIS COURT DID IN LYNCH,
THAT SUCH A TAKING AS THIS THE CONSTITUTION FORBIDS. 

                II. 

IN PART II OF ITS OPINION, THE COURT THROWS OUT A LINE OF HOPE BY ITS
SUGGESTION THAT IF CONGRESS IN THE FUTURE CUTS OFF SOME OTHER GROUP
FROM THE BENEFITS THEY HAVE BOUGHT FROM THE GOVERNMENT, THIS COURT
MIGHT POSSIBLY HOLD THAT THE FUTURE HYPOTHETICAL ACT VIOLATES THE DUE
PROCESS CLAUSE.  IN DOING SO IT READS DUE PROCESS AS AFFORDING ONLY
MINIMAL PROTECTION, AND UNDER THIS READING IT WILL PROTECT ALL FUTURE
GROUPS FROM DESTRUCTION OF THEIR RIGHTS ONLY IF CONGRESS "MANIFESTS A
PATENTLY ARBITRARY CLASSIFICATION, UTTERLY LACKING IN RATIONAL
JUSTIFICATION."  THE DUE PROCESS CLAUSE SO DEFINED PROVIDES LITTLE
PROTECTION INDEED COMPARED WITH THE SPECIFIC SAFEGUARDS OF THE
CONSTITUTION SUCH AS ITS PROHIBITIONS AGAINST TAKING PRIVATE PROPERTY
FOR A PUBLIC USE WITHOUT JUST COMPENSATION, PASSING EX POST FACTO LAWS,
AND IMPOSING BILLS OF ATTAINDER.  I CANNOT AGREE, HOWEVER, THAT THE DUE
PROCESS CLAUSE IS PROPERLY INTERPRETED WHEN IT IS USED TO SUBORDINATE
AND DILUTE THE SPECIFIC SAFEGUARDS OF THE BILL OF RIGHTS, AND WHEN "DUE
PROCESS" ITSELF BECOMES SO WHOLLY DEPENDENT UPON THIS COURT'S IDEA OF
WHAT IS "ARBITRARY" AND "RATIONAL."  SEE LEVINE V. UNITED STATES, 362
U.S. 610, 620 (DISSENTING OPINION); ADAMSON V. CALIFORNIA, 332 U.S. 46,
89-92 (DISSENTING OPINION); ROCHIN V. CALIFORNIA, 342 U.S. 165, 174
(CONCURRING OPINION).  ONE REASON FOR MY BELIEF IN THIS RESPECT IS THAT
I AGREE WITH WHAT IS SAID IN THE COURT'S QUOTATION FROM HELVERING V.
DAVIS, 301 U.S. 619, 644: 

"WHETHER WISDOM OR UNWISDOM RESIDES IN THE SCHEME OF BENEFITS SET
FORTH IN TITLE II, IT IS NOT FOR US TO SAY.  THE ANSWER TO SUCH
INQUIRIES MUST COME FROM CONGRESS, NOT THE COURTS.  OUR CONCERN HERE,
AS OFTEN, IS WITH POWER, NOT WITH WISDOM." 

AND YET THE COURT'S ASSUMPTION OF ITS POWER TO HOLD ACTS
UNCONSTITUTIONAL BECAUSE THE COURT THINKS THEY ARE ARBITRARY AND
IRRATIONAL CAN BE NEITHER MORE NOR LESS THAN A JUDICIAL FORAY INTO THE
FIELD OF GOVERNMENTAL POLICY.  BY THE USE OF THIS DUE PROCESS FORMULA
THE COURT DOES NOT, AS ITS PROPONENTS FREQUENTLY PROCLAIM, ABSTAIN FROM
INTERFERING WITH THE CONGRESSIONAL POLICY.  IT ACTIVELY ENTERS THAT
FIELD WITH NO STANDARDS EXCEPT ITS OWN CONCLUSION AS TO WHAT IS
"ARBITRARY" AND WHAT IS "RATIONAL."  AND THIS ELASTIC FORMULA GIVES THE
COURT A FURTHER POWER, THAT OF HOLDING LEGISLATIVE ACTS CONSTITUTIONAL
ON THE GROUND THAT THEY ARE NEITHER ARBITRARY NOR IRRATIONAL, EVEN
THOUGH THE ACTS VIOLATE SPECIFIC BILL OF RIGHTS SAFEGUARDS.  SEE MY
DISSENT IN ADAMSON V. CALIFORNIA, SUPRA. WHETHER THIS ACT HAD "RATIONAL
JUSTIFICATION" WAS, IN MY JUDGMENT, FOR CONGRESS; WHETHER IT VIOLATES
THE FEDERAL CONSTITUTIONAL IS FOR US TO DETERMINE, UNLESS WE ARE BY
CIRCUMLOCUTION TO ABDICATE THE POWER THAT THIS COURT HAS BEEN HELD TO
HAVE EVER SINCE MARBURY V. MADISON, 1 CRANCH 137. 

                                            III. 

THE COURT IN PART III OF ITS OPINION HOLDS THAT THE 1954 ACT IS NOT
AN EX POST FACTO LAW OR BILL OR ATTAINDER EVEN THOUGH IT CREATES A
CLASS OF DEPORTEES WHO CANNOT COLLECT THEIR INSURANCE BENEFITS BECAUSE
THEY WERE ONCE COMMUNISTS AT A TIME WHEN SIMPLY BEING A COMMUNIST WAS
NOT ILLEGAL.  THE COURT ALSO PUTS GREAT EMPHASIS ON ITS BELIEF THAT THE
ACT HERE IS NOT PUNISHMENT.  ALTHOUGH NOT BELIEVING THAT THE PARTICULAR
LABEL "PUNISHMENT" IS OF DECISIVE IMPORTANCE, I THINK THE ACT DOES
IMPOSE PUNISHMENT EVEN IN A CLASSIC SENSE.  THE BASIC REASON FOR
NESTOR'S LOSS OF HIS INSURANCE PAYMENTS IS THAT HE WAS ONCE A
COMMUNIST.  THIS MAN, NOW 69 YEARS OLD, HAS BEEN DRIVEN OUT OF THE
COUNTRY WHERE HE HAS LIVED FOR 43 YEARS TO A LAND WHERE HE IS
PRACTICALLY A STRANGER, UNDER AN ACT AUTHORIZING HIS DEPORTATION MANY
YEARS AFTER HIS COMMUNIST MEMBERSHIP.  CF. GALVAN V. PRESS, 347 U.S.
522, 532, 533 (DISSENTING OPINIONS).  NOW A SIMILAR EX POST FACTO LAW
DEPRIVES HIM OF HIS INSURANCE, WHICH, WHILE PETTY AND INSIGNIFICANT IN
AMOUNT TO THIS GREAT GOVERNMENT, MAY WELL BE THIS EXILE'S DAILY BREAD,
FOR THE SAME REASON AND IN ACCORD WITH THE GENERAL FASHION OF THE DAY -
THAT IS, TO PUNISH IN EVERY WAY POSSIBLE ANYONE WHO EVER MADE THE
MISTAKE OF BEING A COMMUNIST IN THIS COUNTRY OR WHO IS SUPPOSED EVER TO
HAVE BEEN ASSOCIATED WITH ANYONE WHO MADE THAT MISTAKE.  SEE, E.G.,
BARENBLATT V. UNITED STATES, 360 U.S. 109, AND UPHAUS V. WYMAN, 360
U.S. 72.  IN UNITED STATES V. LOVETT, 328 U.S. 303, 315-316, WE SAID: 

"  ...  LEGISLATIVE ACTS, NO MATTER WHAT THEIR FORM, THAT APPLY
EITHER TO NAMED INDIVIDUALS OR TO EASILY ASCERTAINABLE MEMBERS OF A
GROUP IN SUCH A WAY AS TO INFLICT PUNISHMENT ON THEM WITHOUT A JUDICIAL
TRIAL ARE BILLS OF ATTAINDER PROHIBITED BY THE CONSTITUTION." 

FAITHFUL OBSERVANCE OF OUR HOLDINGS IN THAT CASE, IN EX PARTE
GARLAND, 4 WALL.  333, AND IN CUMMINGS V. MISSOURI, 4 WALL.  277,
WOULD, IN MY JUDGMENT, REQUIRE US TO HOLD THAT THE 1954 ACT IS A BILL
OF ATTAINDER.  IT IS A CONGRESSIONAL ENACTMENT AIMED AT AN EASILY
ASCERTAINABLE GROUP; IT IS CERTAINLY PUNISHMENT IN ANY NORMAL SENSE OF
THE WORD TO TAKE AWAY FROM ANY PERSON THE BENEFITS OF AN INSURANCE
SYSTEM INTO WHICH HE AND HIS EMPLOYER HAVE PAID THEIR MONEYS FOR ALMOST
TWO DECADES; AND IT DOES ALL THIS WITHOUT A TRIAL ACCORDING TO DUE
PROCESS OF LAW.  IT IS TRUE THAT THE LOVETT, CUMMINGS AND GARLAND COURT
OPINIONS WERE NOT UNANIMOUS, BUT THEY NONETHELESS REPRESENT POSITIVE
PRECEDENTS ON HIGHLY IMPORTANT QUESTIONS OF INDIVIDUAL LIBERTY WHICH
SHOULD NOT BE EXPLAINED AWAY WITH COBWEBBERY REFINEMENTS.  IF THE COURT
IS GOING TO OVERRULE THESE CASES IN WHOLE OR IN PART, AND ADOPT THE
VIEWS OF PREVIOUS DISSENTERS, I BELIEVE IT SHOULD BE DONE CLEARLY AND
FORTHRIGHTLY. 

A BASIC CONSTITUTIONAL INFIRMITY OF THIS ACT, IN MY JUDGMENT, IS THAT
IT IS A PART OF A PATTERN OF LAWS ALL OF WHICH VIOLATE THE FIRST
AMENDMENT OUT OF FEAR THAT THIS COUNTRY IS IN GRAVE DANGER IF IT LETS A
HANDFUL OF COMMUNIST FANATICS OR SOME OTHER EXTREMIST GROUP MAKE THEIR
ARGUMENTS AND DISCUSS THEIR IDEAS.  THIS FEAR, I THINK, IS BASELESS. 
IT REFLECTS A LACK OF FAITH IN THE STURDY PATRIOTISM OF OUR PEOPLE AND
DOES NOT GIVE TO THE WORLD A TRUE PICTURE OF OUR ABIDING STRENGTH.  IT
IS AN UNWORTHY FEAR IN A COUNTRY THAT HAS A BILL OF RIGHTS CONTAINING
PROVISONS FOR FAIR TRIALS, FREEDOM OF SPEECH, PRESS AND RELIGION, AND
OTHER SPECIFIC SAFEGUARDS DESIGNED TO KEEP MEN FREE.  I REPEAT ONCE
MORE THAT I THINK THIS NATION'S GREATEST SECURITY LIES, NOT IN TRUSTING
TO A MOMENTARY MAJORITY OF THIS COURT'S VIEW AT ANY PARTICULAR TIME OF
WHAT IS "PATENTLY ARBITRARY," BUT IN WHOLEHEARTED DEVOTION TO AND
OBSERVANCE OF OUR CONSTITUTIONAL FREEDOMS.  SEE WIEMAN V. UPDEGRAFF,
344 U.S. 183, 192 (CONCURRING OPINION). 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT WHICH HELD THAT
NESTOR IS CONSTITUTIONALLY ENTITLED TO COLLECT HIS INSURANCE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

APPELLEE CAME TO THIS COUNTRY FROM BULGARIA IN 1913 AND WAS EMPLOYED,
SO AS TO BE COVERED BY THE SOCIAL SECURITY ACT, FROM DECEMBER 1936 TO
JANUARY 1955 - A PERIOD OF 19 YEARS.  HE BECAME ELIGIBLE FOR RETIREMENT
AND FOR SOCIAL SECURITY BENEFITS IN NOVEMBER 1955 AND WAS AWARDED
$55.60 PER MONTH.  IN JULY 1956 HE WAS DEPORTED FOR HAVING BEEN A
MEMBER OF THE COMMUNIST PARTY FROM 1933 TO 1939.  PURSUANT TO A LAW,
ENACTED SEPTEMBER 1, 1954, HE WAS THEREUPON DENIED PAYMENT OF FURTHER
SOCIAL SECURITY BENEFITS. 

THIS 1954 LAW SEEMS TO ME TO BE A CLASSIC EXAMPLE OF A BILL OF
ATTAINDER, WHICH ART. I, SEC. 9 OF THE CONSTITUTION PROHIBITS CONGRESS
FROM ENACTING.  A BILL OF ATTAINDER IS A LEGISLATIVE ACT WHICH INFLICTS
PUNISHMENT WITHOUT A JUDICIAL TRIAL.  CUMMINGS V. MISSOURI, 4 WALL. 
277, 323. 

IN THE OLD DAYS PUNISHMENT WAS METED OUT TO A CREDITOR OR RIVAL OR
ENEMY BY SENDING HIM TO THE GALLOWS.  BUT AS RECENTLY STATED BY IRVING
BRANT: (FN1) 

"  ...  BY SMITING A MAN DAY AFTER DAY WITH SLANDEROUS WORDS, BY
TAKING AWAY HIS OPPORTUNITY TO EARN A LIVING, YOU CAN DRAIN THE BLOOD
FROM HIS VEINS WITHOUT EVEN SCRATCHING HIS SKIN. 

"TODAY'S BILL OF ATTAINDER IS BROADER THAN THE CLASSIC FORM, AND NOT
SO TALL AND SHARP.  THERE IS MENTAL IN PLACE OF PHYSICAL TORTURE, AND
CONFISCATION OF TOMMORROW'S BREAD AND BUTTER INSTEAD OF YESTERDAY'S
LAND AND GOLD.  WHAT IS PERFECTLY CLEAR IS THAT HATE, FEAR AND
PREJUDICE PLAY THE SAME ROLE TODAY, IN THE DESTRUCTION OF HUMAN RIGHTS
IN AMERICA THAT THEY DID IN ENGLAND WHEN A FRENZIED MOB OF LORDS,
JUDGES, BISHOPS AND SHOEMAKERS TURNED THE TITUS OATES BLACKLIST INTO A
HANGMAN'S RECORD.  HATE, JEALOUSY AND SPITE CONTINUE TO FILL THE
LEGISLATIVE ATTAINDER LISTS JUST AS THEY DID IN THE IRISH PARLIAMENT OF
EX-KING JAMES." 

BILLS OF ATTAINDER, WHEN THEY IMPOSED PUNISHMENT LESS THAN DEATH,
WERE BILLS OF PAINS AND PENALTIES AND EQUALLY BEYOND THE CONSTITUTIONAL
POWER OF CONGRESS.  CUMMINGS V. MISSOURI, SUPRA, AT 323. 

PUNISHMENT IN THE SENSE OF A BILL OF ATTAINDER INCLUDES THE
"DEPRIVATION OR SUSPENSION OF POLITICAL OR CIVIL RIGHTS."  CUMMINGS V.
MISSOURI, SUPRA, AT 322.  IN THAT CASE IT WAS BARRING A PRIEST FROM
PRACTICING HIS PROFESSION.  IN EX PARTE GARLAND, 4 WALL.  333, IT WAS
EXCLUDING A MAN FROM PRACTICING LAW IN THE FEDERAL COURTS.  IN UNITED
STATES V. LOVETT, 328 U.S. 303, IT WAS CUTTING OFF EMPLOYEES'
COMPENSATION AND BARRING THEM PERMANENTLY FROM GOVERNMENT SERVICE. 
CUTTING OFF A PERSON'S LIVELIHOOD BY DENYING HIM ACCRUED SOCIAL
BENEFITS - PART OF HIS PROPERTY INTERESTS - IS NO LESS A PUNISHMENT. 
HERE, AS IN THE OTHER CASES CITED, THE PENALTY EXACTED HAS ONE OF THE
CLASSIC PURPOSES OF PUNISHMENT (FN2) - "TO REPRIMAND THE WRONGDOER TO
DETER OTHERS."  TROP V. DULLES, 356 U.S. 86, 96. 

SOCIAL SECURITY PAYMENTS ARE NOT GRATUITIES.  THEY ARE PRODUCTS OF A
CONTRIBUTORY SYSTEM, THE FUNDS BEING RAISED BY PAYMENT FROM EMPLOYEES
AND EMPLOYERS ALIKE, OR IN CASE OF SELF-EMPLOYED PERSONS, BY THE
INDIVIDUAL ALONE.  SEE SOCIAL SECURITY BOARD V. NIEROTKO, 327 U.S. 358,
364.  THE FUNDS ARE PLACED IN THE FEDERAL OLD-AGE AND SURVIVORS
INSURANCE TRUST FUND, 42 U.S.C. SEC.  401(A); AND ONLY THOSE WHO
CONTRIBUTE TO THE FUND ARE ENTITLED TO ITS BENEFITS, THE AMOUNT OF
BENEFITS BEING RELATED TO THE AMOUNT OF CONTRIBUTIONS MADE.  SEE STARK,
SOCIAL SECURITY:  ITS IMPORTANCE TO LAWYERS, 43 A.B.A.J. 319, 321
(1957).  AS THE LATE SENATOR GEORGE, LONG CHAIRMAN OF THE SENATE
FINANCE COMMITTEE AND ONE OF THE AUTHORS OF THE SOCIAL SECURITY SYSTEM,
SAID: 

"THERE HAS DEVELOPED THROUGH THE YEARS A FEELING BOTH IN AND OUT OF
CONGRESS THAT THE CONTRIBUTORY SOCIAL INSURANCE PRINCIPLE FITS OUR
TIMES - THAT IT SERVES A VITAL NEED THAT CANNOT BE AS WELL SERVED
OTHERWISE.  IT COMPORTS BETTER THAN ANY SUBSTITUTE WE HAVE DISCOVERED
WITH THE AMERICAN CONCEPT THAT FREE MEN WANT TO EARN THEIR SECURITY AND
NOT ASK FOR DOLES - THAT WHAT IS DUE AS A MATTER OF EARNED RIGHT IS FAR
BETTER THAN A GRATUITY  ...  . 

     *       *         *         *         * 

"SOCIAL SECURITY IS NOT A HANDOUT; IT IS NOT CHARITY; IT IS NOT
RELIEF.  IT IS AN EARNED RIGHT BASED UPON THE CONTRIBUTIONS AND
EARNINGS OF THE INDIVIDUAL.  AS AN EARNED RIGHT, THE INDIVIDUAL IS
ELIGIBLE TO RECEIVE HIS BENEFIT IN DIGNITY AND SELF-RESPECT."  102
CONG. REC. 15110. 

SOCIAL SECURITY BENEFITS HAVE RIGHTLY COME TO BE REGARDED AS BASIC
FINANCIAL PROTECTION AGAINST THE HAZARDS OF OLD AGE AND DISABILITY.  AS
STATED IN A RECENT HOUSE REPORT: 

"THE OLD-AGE AND SURVIVORS INSURANCE SYSTEM IS THE BASIC PROGRAM
WHICH PROVIDES PROTECTION FOR AMERICA'S FAMILIES AGAINST THE LOSS OF
EARNED INCOME UPON THE RETIREMENT OR DEATH OF THE FAMILY PROVIDER.  THE
PROGRAM PROVIDES BENEFITS RELATED TO EARNED INCOME AND SUCH BENEFITS
ARE PAID FOR BY THE CONTRIBUTIONS MADE WITH RESPECT TO PERSONS WORKING
IN COVERED OCCUPATIONS."  H.R. REP. NO. 1189, 84TH CONG., 1ST SESS. 2. 

CONGRESS COULD PROVIDE THAT ONLY PEOPLE RESIDENT HERE COULD GET
SOCIAL SECURITY BENEFITS.  YET BOTH THE HOUSE AND THE SENATE REJECTED
ANY RESIDENCE REQUIREMENTS.  SEE H.R. REP. NO. 1698, 83D CONG., 2D
SESS. 24-25; S. REP. NO. 1987, 83D CONG., 2D SESS. 23.  CONGRESS
CONCEDEDLY MIGHT AMEND THE PROGRAM TO MEET NEW CONDITIONS.  BUT MAY IT
TAKE AWAY SOCIAL SECURITY BENEFITS FROM ONE PERSON OR FROM A GROUP OF
PERSONS FOR VINDICTIVE REASONS?  COULD CONGRESS ON DEPORTING AN ALIEN
FOR HAVING BEEN A COMMUNIST CONFISCATE HIS HOME, APPROPRIATE HIS
SAVINGS ACCOUNTS, AND THUS SEND HIM OUT OF THE COUNTRY PENNILESS?  I
THINK NOT.  ANY SUCH ACT WOULD BE A BILL OF ATTAINDER.  THE DIFFERENCE,
AS I SEE IT, BETWEEN THAT CASE AND THIS IS ONE MERELY OF DEGREE. 
SOCIAL SECURITY BENEFITS, MADE UP IN PART OF THIS ALIEN'S OWN EARNINGS,
ARE TAKEN FROM HIM BECAUSE HE ONCE WAS A COMMUNIST.    THE VIEW THAT
SEC. 202(N), WITH WHICH WE NOW DEAL, IMPOSES A PENALTY WAS TAKEN BY
SECRETARY FOLSOM, APPELLANT'S PREDECESSOR, WHEN OPPOSING ENLARGEMENT OF
THE CATEGORY OF PEOPLE TO BE DENIED BENEFITS OF SOCIAL SECURITY, E.G.,
THOSE CONVICTED OF TREASON AND SEDITION.  HE SAID: 

"BECAUSE THE DEPRIVATION OF BENEFITS AS PROVIDED IN THE AMENDMENT IS
IN THE NATURE OF A PENALTY AND BASED ON CONSIDERATIONS FOREIGN TO THE
OBJECTIVES AND PROVISIONS OF THE OLD-AGE AND SURVIVORS INSURANCE
PROGRAM, THE AMENDMENT MAY WELL SERVE AS A PRECEDENT FOR EXTENSION OF
SIMILAR PROVISIONS TO OTHER PUBLIC PROGRAMS AND TO OTHER CRIMES WHICH,
WHILE PERHAPS DIFFERENT IN DEGREE, ARE DIFFICULT TO DISTINGUISH IN
PRINCIPLE. 

"THE PRESENT LAW RECOGNIZES ONLY THREE NARROWLY LIMITED EXCEPTIONS
(FN3) TO THE BASIC PRINCIPLE THAT BENEFITS ARE PAID WITHOUT REGARD TO
THE ATTITUDES, OPINIONS, BEHAVIOR, OR PERSONAL CHARACTERISTICS OF THE
INDIVIDUAL  ...  ."  HEARINGS, SENATE FINANCE COMMITTEE ON SOCIAL
SECURITY AMENDMENTS OF 1955, 84TH CONG., 2D SESS. 1319. 

THE COMMITTEE REPORTS, THOUGH MEAGRE, SUPPORT SECRETARY FOLSOM IN
THAT CHARACTERIZATION OF SEC. 202(N).  THE HOUSE REPORT TERSELY STATED
THAT TERMINATION OF THE BENEFITS WOULD APPLY TO THOSE PERSONS WHO WERE
DEPORTED "BECAUSE OF ILLEGAL ENTRY, CONVICTION OF A CRIME, OR
SUBVERSIVE ACTIVITY."   H.R. REP. NO. 1698, 83D CONG., 2D SESS. 25. 
THE AIM AND PURPOSE ARE CLEAR - TO TAKE AWAY FROM A PERSON BY
LEGISLATIVE FIAT PROPERTY WHICH HE HAS ACCUMULATED BECAUSE HE HAS ACTED
IN A CERTAIN WAY OR EMBRACED A CERTAIN IDEOLOGY.  THAT IS A MODERN
VERSION OF THE BILL OF ATTAINDER - AS PLAIN, AS DIRECT, AS EFFECTIVE AS
THOSE WHICH RELIGIOUS PASSIONS ONCE LOOSED IN ENGLAND AND WHICH LATER
WERE EMPLOYED AGAINST THE TORIES HERE.  (FN4)  I WOULD AFFIRM THIS
JUDGMENT. 

FN1  ADDRESS ENTITLED BILLS OF ATTAINDER IN 1787 AND TODAY.  COLUMBIA
LAW REVIEW DINNER 1954, PUBLISHED IN 1959 BY THE EMERGENCY CIVIL
LIBERTIES COMMITTEE, UNDER THE TITLE CONGRESSIONAL INVESTIGATIONS AND
BILLS OF ATTAINDER. 

FN2  THE BROAD SWEEP OF THE IDEA OF PUNISHMENT BEHIND THE CONCEPT OF
THE BILL OF ATTAINDER WAS STATED AS FOLLOWS BY IRVING BRANT, OP. CIT.,
SUPRA, NOTE 1, 9-10: 

"IN 1794 THE AMERICAN PEOPLE WERE IN A STATE OF EXCITEMENT COMPARABLE
TO THAT WHICH EXISTS TODAY.  SUPPORTERS OF THE FRENCH REVOLUTION HAD
ORGANIZED THE DEMOCRATIC SOCIETIES - BLATANTLY ADOPTING THAT SUBVERSIVE
TITLE.  THEN THE WHISKY REBELLION EXPLODED IN WESTERN PENNSYLVANIA. 
THE DEMOCRATIC SOCIETIES WERE BLAMED.  A MOTION CENSURING THE SOCIETIES
WAS INTRODUCED IN THE HOUSE OF REPRESENTATIVES. 

"THERE, IN 1794, YOU HAD THE BASIC DIVISION IN AMERICAN THOUGHT - ON
ONE SIDE THE DOCTRINE OF POLITICAL LIBERTY FOR EVERYBODY, WITH
COLLECTIVE SECURITY RESTING ON THE CAPACITY OF THE PEOPLE FOR SELF
GOVERNMENT; ON THE OTHER SIDE THE DOCTRINE THAT THE PEOPLE COULD NOT BE
TRUSTED AND POLITICAL LIBERTY MUST BE RESTRAINED. 

"JAMES MADISON CHALLENGED THIS LATTER DOCTRINE.  THE INVESTIGATIVE
POWER OF CONGRESS OVER PERSONS, HE CONTENDED, WAS LIMITED TO INQUIRY
INTO THE CONDUCT OF INDIVIDUALS IN THE PUBLIC SERVICE.  'OPINIONS,' HE
SAID, 'ARE NOT THE SUBJECTS OF LEGISLATION.'  START CRITICIZING PEOPLE
FOR ABUSE OF THEIR RESERVED RIGHTS, AND THE CENSURE MIGHT EXTEND TO
FREEDOM OF SPEECH AND PRESS.  WHAT WOULD BE THE EFFECT ON THE PEOPLE
THUS CONDEMNED?  SAID MADISON: 

"'IT IS IN VAIN TO SAY THAT THIS INDISCRIMINATE CENSURE IS NO
PUNISHMENT  ...  .  IS NOT THIS PROPOSITION, IF VOTED, A BILL OF
ATTAINDER?' 

"MADISON WON HIS FIGHT, NOT BECAUSE HE CALLED THE RESOLUTION A BILL
OF ATTAINDER, BUT BECAUSE IT ATTAINTED TOO MANY MEN WHO WERE GOING TO
VOTE IN THE NEXT ELECTION.  THE DEFINITION, HOWEVER, WAS THERE - A BILL
OF ATTAINDER - AND THE DEFINITION WAS GIVEN BY THE FOREMOST AMERICAN
AUTHORITY ON THE PRINCIPLES OF LIBERTY AND ORDER UNDERLYING OUR SYSTEM
OF GOVERNMENT." 

FN3  THE THREE EXCEPTIONS REFERRED TO WERE (1) SEC. 202(N); (2) ACT
OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. SECS. 2281-2288; (3)
REGULATION OF THE SOCIAL SECURITY ADMINISTRATION, 20 CFR SEC. 403.409 -
DENYING DEPENDENT'S BENEFITS TO A PERSON FOUND GUILTY OF FELONIOUS
HOMICIDE OF THE INSURED WORKER. 

FN4  BRANT, OP. CIT., SUPRA, NOTE 1, STATES AT P. 9: 

"WHAT WERE THE FRAMERS AIMING AT WHEN THEY FORBADE BILLS OF
ATTAINDER?  THEY WERE, OF COURSE, GUARDING AGAINST THE RELIGIOUS
PASSIONS THAT DISGRACED CHRISTIANITY IN EUROPE.  BUT AMERICAN BILLS OF
ATTAINDER, JUST BEFORE 1787, WERE TYPICALLY USED BY REVOLUTIONARY
ASSEMBLIES TO RID THE STATES OF BRITISH LOYALISTS.  BY A CURIOUS
COINCIDENCE, IT WAS USUALLY THE TORY WITH A GOOD FARM WHO WAS SENT INTO
EXILE, AND ALL TOO OFTEN IT WAS SOMEBODY WHO WANTED THAT FARM WHO
INDUCED THE LEGISLATURE TO ATTAINT HIM.  PATRIOTISM COULD SERVE AS A
CLOAK FOR GREED AS EASILY AS RELIGION DID IN THAT IRISH PARLIAMENT OF
JAMES THE SECOND. 

"BUT CONSIDER A CASE IN WHICH NOTHING COULD BE SAID AGAINST THE
MOTIVE.  DURING THE REVOLUTION, GOVERNOR PATRICK HENRY INDUCED THE
VIRGINIA LEGISLATURE TO PASS A BILL OF ATTAINDER CONDEMNING JOSIAH
PHILLIPS TO DEATH.  HE WAS A TRAITOR, A MURDERER, A PIRATE AND AN
OUTLAW.  WHEN RATIFICATION OF THE NEW CONSTITUTION CAME BEFORE THE
VIRGINIA CONVENTION, HENRY INVEIGHED AGAINST IT BECAUSE IT CONTAINED NO
BILL OF RIGHTS.  EDMUND RANDOLPH TAUNTED HIM WITH HIS SPONSORSHIP OF
THE PHILLIPS BILL OF ATTAINDER.  HENRY THEN MADE THE BLUNDER OF
DEFENDING IT.  THE BILL WAS WARRANTED, HE SAID, BECAUSE PHILLIPS WAS NO
SOCRATES.  THAT SHOCKING DEFENSE OF ARBITRARY CONDEMNATION MAY HAVE
PRODUCED THE SMALL MARGIN BY WHICH THE CONSTITUTION WAS RATIFIED." 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

WHEN NESTOR QUIT THE COMMUNIST PARTY IN 1939 HIS PAST MEMBERSHIP WAS
NOT A GROUND FOR HIS DEPORTATION.  KESSLER V. STRECKER, 307 U.S. 22. 
IT WAS NOT UNTIL A YEAR LATER THAT PAST MEMBERSHIP WAS MADE A SPECIFIC
GROUND FOR DEPORTATION.  (FN1)  THIS PAST MEMBERSHIP HAS COST NESTOR
DEAR.  IT BROUGHT HIM EXPULSION FROM THE COUNTRY AFTER 43 YEARS'
RESIDENCE - MOST OF HIS LIFE.  NOW MORE IS EXACTED FROM HIM, FOR AFTER
HE HAD BEGUN TO RECEIVE BENEFITS IN 1955 - HAVING WORKED IN COVERED
EMPLOYMENT THE REQUIRED TIME AND REACHED AGE 65 - AND MIGHT ANTICIPATE
RECEIVING THEM THE REST OF HIS LIFE, THE BENEFITS WERE STOPPED PURSUANT
TO SEC. 202(N) OF THE AMENDED SOCIAL SECURITY ACT.  (FN2)  HIS
PREDICAMENT IS VERY REAL - AN AGING MAN DEPRIVED OF THE MEANS WITH
WHICH TO LIVE AFTER BEING SEPARATED FROM HIS FAMILY AND EXILED TO LIVE
AMONG STRANGERS IN A LAND HE QUIT 47 YEARS AGO.  THE COMMON SENSE OF IT
IS THAT HE HAS BEEN PUNISHED SEVERELY FOR HIS PAST CONDUCT. 

EVEN THE 1950 STATUTE DEPORTING ALIENS FOR PAST MEMBERSHIP RAISED
SERIOUS QUESTIONS IN THIS COURT WHETHER THE PROHIBITION AGAINST EX POST
FACTO LAWS WAS VIOLATED.  IN GALVAN V. PRESS, 347 U.S. 522, 531, WE
SAID "SINCE THE INTRINSIC CONSEQUENCES OF DEPORTATION ARE SO CLOSE TO
PUNISHMENT FOR CRIME, IT MIGHT FAIRLY BE SAID ALSO THAT THE EX POST
FACTO CLAUSE, EVEN THOUGH APPLICABLE ONLY TO PUNITIVE LEGISLATION,
SHOULD BE APPLIED TO DEPORTATION."  HOWEVER, PRECEDENTS WHICH TREAT
DEPORTATION NOT AS PUNISHMENT, BUT AS A PERMISSIBLE EXERCISE OF
CONGRESSIONAL POWER TO ENACT THE CONDITIONS UNDER WHICH ALIENS MAY COME
TO AND REMAIN IN THIS COUNTRY, GOVERNED THE DECISION IN FAVOR OF THE
CONSTITUTIONALITY OF THE STATUTE. 

HOWEVER, THE COURT CANNOT REST A DECISION THAT SEC. 202(N) DOES NOT
IMPOSE PUNISHMENT ON CONGRESS' POWER TO REGULATE IMMIGRATION.  IT
ESCAPES THE COMMON-SENSE CONCLUSION THAT CONGRESS HAS IMPOSED
PUNISHMENT BY FINDING THE REQUISITE RATIONAL NEXUS TO A GRANTED POWER
IN THE SUPPOSED FURTHERANCE OF THE SOCIAL SECURITY PROGRAM "ENACTED
PURSUANT TO CONGRESS' POWER TO 'SPEND MONEY IN AID OF THE "GENERAL
WELFARE."'"  I DO NOT UNDERSTAND THE COURT TO DENY THAT BUT FOR THAT
CONNECTION, SEC. 202(N) WOULD IMPOSE PUNISHMENT AND NOT ONLY OFFEND THE
CONSTITUTIONAL PROHIBITION ON EX POST FACTO LAWS BUT ALSO VIOLATE THE
CONSTITUTIONAL GUARANTEES AGAINST IMPOSITION OF PUNISHMENT WITHOUT A
JUDICIAL TRIAL. 

THE COURT'S TEST OF THE CONSTITUTIONALITY OF SEC. 202(N) IS WHETHER
THE LEGISLATIVE CONCERN UNDERLYING THE STATUTE WAS TO REGULATE "THE
ACTIVITY OR STATUS FROM WHICH THE INDIVIDUAL IS BARRED" OR WHETHER THE
STATUTE "IS EVIDENTLY AIMED AT THE PERSON OR CLASS OF PERSONS
DISQUALIFIED."  IT REJECTS THE INFERENCE THAT THE STATUTE IS "AIMED AT
THE PERSON OR CLASS OF PERSONS DISQUALIFIED" BY RELYING UPON THE
PRESUMPTION OF CONSTITUTIONALITY.  THIS PRESUMPTION MIGHT BE A BASIS
FOR SUSTAINING THE STATUTE IF IN FACT THERE WERE TWO OPPOSING
INFERENCES WHICH COULD REASONABLY BE DRAWN FROM THE LEGISLATION, ONE
THAT IT IMPOSES PUNISHMENT AND THE OTHER THAT IT IS PURPOSED TO FURTHER
THE ADMINISTRATION OF THE SOCIAL SECURITY PROGRAM.  THE COURT, HOWEVER,
DOES NOT LIMIT THE PRESUMPTION TO THAT USE.  RATHER THE PRESUMPTION
BECOMES A COMPLETE SUBSTITUTE FOR ANY SUPPORTABLE FINDING OF A RATIONAL
CONNECTION OF SEC. 202(N) WITH THE SOCIAL SECURITY PROGRAM.  FOR ME IT
IS NOT ENOUGH TO STATE THE TEST AND HOLD THAT THE PRESUMPTION ALONE
SATISFIES IT.  I FIND IT NECESSARY TO EXAMINE THE ACT AND ITS
CONSEQUENCES TO ASCERTAIN WHETHER THERE IS GROUND FOR THE INFERENCE OF
A CONGRESSIONAL CONCERN WITH THE ADMINISTRATION OF THE SOCIAL SECURITY
PROGRAM.  ONLY AFTER THIS INQUIRY WOULD I CONSIDER THE APPLICATION OF
THE PRESUMPTION. 

THE COURT SEEMS TO ACKNOWLEDGE THAT THE STATUTE BEARS HARSHLY UPON
THE INDIVIDUAL DISQUALIFIED, BUT STATES THAT THIS IS PERMISSIBLE WHEN A
STATUTE IS ENACTED AS A REGULATION OF THE ACTIVITY.  BUT SURELY THE
HARSHNESS OF THE CONSEQUENCES IS ITSELF A RELEVANT CONSIDERATION TO THE
INQUIRY INTO THE CONGRESSIONAL PURPOSE.  (FN3)  CF. TROP V. DULLES, 356
U.S. 86, 110 (CONCURRING OPINION). 

IT SEEMS TO ME THAT THE STATUTE ITSELF SHOWS THAT THE SOLE
LEGISLATIVE CONCERN WAS WITH "THE PERSON OR CLASS OF PERSONS
DISQUALIFIED."  CONGRESS DID NOT DISQUALIFY FOR BENEFITS ALL
BENEFICIARIES RESIDING ABROAD OR EVEN ALL DEPENDENTS RESIDING ABROAD
WHO ARE ALIENS.  IF THAT HAD BEEN THE CASE I MIGHT AGREE THAT CONGRESS'
CONCERN WOULD HAVE BEEN WITH "THE ACTIVITY OR STATUS" AND NOT WITH THE
"PERSON OR CLASS OF PERSONS DISQUALIFIED."  THE SCALES WOULD THEN BE
TIPPED TOWARD THE CONCLUSION THAT CONGRESS DESIRED TO LIMIT BENEFIT
PAYMENTS TO BENEFICIARIES RESIDING IN THE UNITED STATES SO THAT THE
AMERICAN ECONOMY WOULD BE AIDED BY EXPENDITURE OF BENEFITS HERE. 
INDEED A PROPOSAL ALONG THOSE LINES WAS SUBMITTED TO CONGRESS IN 1954,
AT THE SAME TIME SEC. 202(N) WAS PROPOSED, (FN4) AND IT WAS REJECTED. 
(FN5) 

PERHAPS, THE COURT'S CONCLUSION THAT REGULATION OF "THE ACTIVITY OR
STATUS" WAS THE CONGRESSIONAL CONCERN WOULD BE A FAIR APPRAISAL OF THE
STATUTE IF CONGRESS HAD TERMINATED THE BENEFITS OF ALL ALIEN
BENEFICIARIES WHO ARE DEPORTED.  BUT THAT IS NOT WHAT CONGRESS DID. 
THE 18 GROUNDS FOR WHICH ALIENS MAY BE DEPORTED.  (FN6) 

H.R. REP. NO. 1698, 83D CONG., 2D SESS. 25, 77, CITED BY THE COURT,
DESCRIBES SEC. 202(N) AS INCLUDING PERSONS WHO WERE DEPORTED "BECAUSE
OF UNLAWFUL ENTRY, CONVICTION OF A CRIME, OR SUBVERSIVE ACTIVITY."  THE
ACTS AS NARCOTIC ADDICTION OR PROSTITUTION.  THE COMMON ELEMENT OF THE
14 GROUNDS IS THAT THE ALIEN HAS BEEN GUILTY OF SOME BLAMEWORTHY
CONDUCT.  IN OTHER WORDS CONGRESS WORKED ITS WILL ONLY ON ALIENS
DEPORTED FOR CONDUCT DISPLEASING TO THE LAWMAKERS. 

THIS IS PLAINLY DEMONSTRATED BY THE REMAINING FOUR GROUNDS OF
DEPORTATION, THOSE WHICH DO NOT RESULT IN THE CANCELLATION OF
BENEFITS.  (FN7)  TWO OF THOSE FOUR GROUNDS COVER PERSONS WHO BECOME
PUBLIC CHARGES WITHIN FIVE YEARS AFTER ENTRY FOR REASONS WHICH PREDATED
THE ENTRY.  A THIRD GROUND COVERS THE ALIEN WHO FAILS TO MAINTAIN HIS
NONIMMIGRANT STATUS.  THE FOURTH GROUND REACHES THE ALIEN WHO, PRIOR TO
OR WITHIN FIVE YEARS AFTER ENTRY, AIDS OTHER ALIENS TO ENTER THE
COUNTRY ILLEGALLY. 

THOSE WHO ARE DEPORTED FOR BECOMING PUBLIC CHARGES CLEARLY HAVE NOT,
BY MODERN STANDARDS, ENGAGED IN CONDUCT WORTHY OF CENSURE.  THE
GOVERNMENT'S SUGGESTION THAT THE REASON FOR THEIR EXCLUSION FROM SEC.
202(N) WAS AN UNARTICULATED FEELING OF CONGRESS THAT IT WOULD BE UNFAIR
TO THE "OTHER COUNTRY TO DEPORT SUCH DESTITUTE PERSONS WITHOUT LETTING
THEM RETAIN THEIR MODICUM OF SOCIAL SECURITY BENEFITS" APPEARS AT BEST
FANCIFUL, ESPECIALLY SINCE, BY HYPOTHESIS, THEY ARE DEPORTABLE BECAUSE
THE CONDITIONS WHICH LED TO THEIR BECOMING PUBLIC CHARGES EXISTED PRIOR
TO ENTRY. 

THE EXCLUSION FROM THE OPERATION OF SEC. 202(N) OF ALIENS DEPORTED
FOR FAILURE TO MAINTAIN NONIMMIGRANT STATUS RATIONALLY CAN BE
EXPLAINED, IN THE CONTEXT OF THE WHOLE STATUTE, ONLY AS EVIDENCING THAT
CONGRESS CONSIDERED THAT CONDUCT LESS BLAMEWORTHY.  CERTAINLY THE
GOVERNMENT'S SUGGESTION THAT CONGRESS MAY HAVE THOUGHT IT UNLIKELY THAT
SUCH PERSONS WOULD WORK SUFFICIENT TIME IN COVERED EMPLOYMENT TO BECOME
ELIGIBLE FOR SOCIAL SECURITY BENEFITS CANNOT BE THE REASON FOR THIS
EXCLUSION.  FOR FREQUENTLY THE VERY ACT WHICH EVENTUALLY RESULTS IN THE
DEPORTATION OF PERSONS ON THAT GROUND IS THE SECURING OF PRIVATE
EMPLOYMENT.  FINALLY, IT IS IMPOSSIBLE TO RECONCILE THE CONTINUATION OF
BENEFITS TO ALIENS WHO ARE DEPORTED FOR AIDING OTHER ALIENS TO ENTER
THE COUNTRY ILLEGALLY, EXCEPT UPON THE GROUND THAT CONGRESS FELT THAT
THEIR CONDUCT WAS LESS REPREHENSIBLE.  AGAIN THE GOVERNMENT'S
SUGGESTION THAT THE REASON MIGHT BE CONGRESS' BELIEF THAT THESE ALIENS
WOULD NOT HAVE WORKED IN COVERED EMPLOYMENT MUST BE REJECTED.  FIVE
YEARS AFTER ENTRY WOULD BE AMPLE TIME WITHIN WHICH TO SECURE EMPLOYMENT
AND QUALIFY.  MOREOVER THE SAME FIVE-YEAR LIMITATION APPLIES TO SEVERAL
OF THE 14 GROUNDS OF DEPORTATION FOR WHICH ALIENS ARE CUT OFF FROM
BENEFITS AND THE GOVERNMENT'S ARGUMENT WOULD APPLY EQUALLY TO THEM IF
THAT IN FACT WAS THE CONGRESSIONAL REASON.    THIS APPRAISAL OF THE
DISTINCTIONS DRAWN BY CONGRESS BETWEEN VARIOUS KINDS OF CONDUCT IMPELS
THE CONCLUSION, BEYOND PERADVENTURE THAT THE DISTINCTIONS CAN BE
UNDERSTOOD ONLY IF THE PURPOSE OF CONGRESS WAS TO STRIKE AT "THE PERSON
OR CLASS OF PERSONS DISQUALIFIED."  THE COURT INVEIGHS AGAINST
INVALIDATING A STATUTE ON "IMPLICATON AND VAGUE CONJECTURE."  RATHER I
THINK THE COURT HAS STRAINED TO SUSTAIN THE STATUTE ON "IMPLICATION AND
VAGUE CONJECTURE," IN HOLDING THAT THE CONGRESSIONAL CONCERN WAS "THE
ACTIVITY OR STATUS FROM WHICH THE INDIVIDUAL IS BARRED."  TODAY'S
DECISION SANCTIONS THE USE OF THE SPENDING POWER NOT TO FURTHER THE
LEGITIMATE OBJECTIVES OF THE SOCIAL SECURITY PROGRAM BUT TO INFLICT
HURT UPON THOSE WHO BY THEIR CONDUCT HAVE INCURRED THE DISPLEASURE OF
CONGRESS.  THE FRAMERS ORDAINED THAT EVEN THE WORST OF MEN SHOULD NOT
BE PUNISHED FOR THEIR PAST ACTS OR FOR ANY CONDUCT WITHOUT ADHERENCE TO
THE PROCEDURAL SAFEGUARDS WRITTEN INTO THE CONSTITUTION.  TODAY'S
DECISION IS TO ME A REGRETFUL RETREAT FROM LOVETT, CUMMINGS AND
GARLAND. 

AGAINST EX POST FACTO LAWS AND WITHOUT A JUDICIAL TRIAL.  (FN8)  I
THEREFORE DISSENT. 

FN1  THE ALIEN REGISTRATION ACT, 1940, 54 STAT. 673, MADE MEMBERSHIP
IN AN ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF
THE UNITED STATES BY FORCE OR VIOLENCE A GROUND FOR DEPORTATION EVEN
THOUGH THE MEMBERSHIP WAS TERMINATED PRIOR TO THE PASSAGE OF THAT
STATUTE.  SEE HARISIADES V. SHAUGHNESSY, 342 U.S. 580.  UNTIL THE
PASSAGE OF THE INTERNAL SECURITY ACT OF 1950, 64 STAT. 1006, 1008, IT
WAS NECESSARY FOR THE GOVERNMENT TO PROVE IN EACH CASE IN WHICH IT
SOUGHT TO DEPORT AN ALIEN BECAUSE OF MEMBERSHIP IN THE COMMUNIST PARTY
THAT THAT ORGANIZATION IN FACT ADVOCATED THE VIOLENT OVERTHROW OF THE
GOVERNMENT.  THE 1950 ACT EXPRESSLY MADE DEPORTABLE ALIENS WHO AT THE
TIME OF ENTRY, OR AT ANY TIME THEREAFTER WERE "MEMBERS OF OR AFFILIATED
WITH  ...  THE COMMUNIST PARTY OF THE UNITED STATES."  SEE GALVAN V.
PRESS, 347 U.S. 522, 529. 

FN2  A COMPARABLE ANNUITY WAS WORTH, AT THE TIME APPELLEE'S BENEFITS
WERE CANCELED, APPROXIMATELY $6,000.  TO DATE HE HAS LOST NEARLY $2,500
IN BENEFITS. 

FN3  THE COURT, RECOGNIZING THAT CUMMINGS V. MISSOURI, 4 WALL.  277,
AND EX PARTE GARLAND, 4 WALL.  333, STRONGLY FAVOR THE CONCLUSION THAT
SEC. 202(N) WAS ENACTED WITH PUNITIVE INTENT, REJECTS THE FORCE OF
THOSE PRECEDENTS AS DRAWING "HEAVILY ON THE COURT'S FIRST-HAND
ACQUAINTANCE WITH THE EVENTS AND THE MOOD OF THE THEN RECENT CIVIL WAR,
AND 'THE FIERCE PASSIONS WHICH THAT STRUGGLE AROUSED.'"  THIS SEEMS TO
ME TO SAY THAT THE PROVISION OF SEC. 202(N) WHICH CUTS OFF BENEFITS
FROM ALIENS DEPORTED FOR PAST COMMUNIST PARTY MEMBERSHIP WAS NOT
ENACTED IN A SIMILAR ATMOSPHERE.  OUR JUDICIAL DETACHMENT FROM THE
REALITIES OF THE NATIONAL SCENE SHOULD NOT CARRY US SO FAR.  OUR MEMORY
OF THE EMOTIONAL CLIMATE STIRRED BY THE QUESTION OF COMMUNISM IN THE
EARLY 1950'S CANNOT BE SO SHORT. 

FN4  SEE H.R. REP. NO. 1698, 83D CONG., 2D SESS. 24-25. 

FN5  SEE S. REP. NO. 1987, 83D CONG., 2D SESS. 23; H.R. CONF. REP.
NO. 2679, 83D CONG., 2D SESS. 4. 

FN6  SEE COURT'S OPINION, ANTE, NOTE 1. 

FN7  SEE THE COURT'S OPINION, ANTE, NOTE 13. 

FN8  IT IS UNNECESSARY FOR ME TO REACH THE QUESTION WHETHER THE
STATUTE ALSO CONSTITUTES A BILL OF ATTAINDER. 
..END :





















MINER V. ATLASS 363 U.S. 641 


NO. 156.  ARGUED MARCH 3, 1960.  - DECIDED JUNE 20, 1960.  - 265 F.2D
312, AFFIRMED. 


A FEDERAL DISTRICT COURT SITTING IN ADMIRALTY HAS NO POWER TO ORDER
THE TAKING OF ORAL DEPOSITIONS FOR THE PURPOSE OF DISCOVERY ONLY; AND
RULE 32 OF THE ADMIRALTY RULES OF THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, PURPORTING TO AUTHORIZE THE TAKING OF SUCH
DEPOSITIONS, IS INVALID FOR WANT OF AUTHORITY IN THE DISTRICT COURT TO
PROMULGATE IT.  PP. 641-652. 

(A)  A COURT OF ADMIRALTY HAS NO INHERENT POWER, INDEPENDENT OF ANY
STATUTE OR RULE, TO ORDER THE TAKING OF DEPOSITIONS FOR THE PURPOSE OF
DISCOVERY.  PP. 643-644. 

(B)  RULE 32C OF THIS COURT'S GENERAL ADMIRALTY RULES DOES NOT
IMPLIEDLY EMPOWER A DISTRICT JUDGE TO ORDER THE TAKING OF SUCH
DEPOSITIONS.  PP. 644-646. 

(C)  RULE 32 OF THE DISTRICT COURT'S ADMIRALTY RULES IS NOT A VALID
EXERCISE OF ITS POWER TO REGULATE LOCAL PRACTICE, CONFERRED BY RULE 44
OF THE GENERAL ADMIRALTY RULES.  PP. 646-652. 

MINER ET AL., JUDGES, U.S. DISTRICT COURT, V. ATLASS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS GRANTED IN THIS CASE, 361 U.S. 807, TO REVIEW THE
DECISION OF THE COURT OF APPEALS HOLDING THAT A DISTRICT COURT SITTING
IN ADMIRALTY LACKED POWER TO ORDER THE TAKING OF ORAL DEPOSITIONS FOR
THE PURPOSE OF DISCOVERY ONLY, AND THAT RULE 32 OF THE ADMIRALTY RULES
OF THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, PURPORTING
TO AUTHORIZE THE TAKING OF SUCH DEPOSITIONS, (FN1) WAS INVALID FOR WANT
OF AUTHORITY IN THE DISTRICT COURT TO PROMULGATE IT. 

THE ISSUE AROSE IN THE FOLLOWING MANNER:  THE RESPONDENT FILED A
PETITION IN ADMIRALTY SEEKING EXONERATION FROM OR LIMITATION OF
LIABILITY FOR THE DEATH BY DROWNING OF TWO SEAMEN EMPLOYED ON A YACHT
OWNED BY HIM.  THE REPRESENTATIVES OF THE DECEASED SEAMEN, HAVING
APPEARED AS CLAIMANTS, APPLIED TO THE DISTRICT COURT FOR AN ORDER
GRANTING LEAVE TO TAKE THE DEPOSITIONS OF SEVERAL NAMED PERSONS,
INCLUDING RESPONDENT, FOR THE PURPOSE OF DISCOVERY ONLY.  RESPONDENT
OPPOSED THE MOTION ON THE GROUND THAT THE COURT HAD NO POWER TO ORDER
THE TAKING OF DEPOSITIONS IN ANY CASE NOT MEETING THE CONDITIONS OF
R.S. SECS. 863-865, THE DE BENE ESSE STATUTE.  (FN2)  AFTER ARGUMENT,
PETITIONER MINER, D.J., GRANTED THE CLAIMANTS' MOTION, PURSUANT TO
LOCAL ADMIRALTY RULE 32.  RESPONDENT THEN SOUGHT A WRIT OF MANDAMUS OR
PROHIBITION REQUIRING THE VACATION OF THE ORDER OF THE DISTRICT COURT,
AND PROHIBITING JUDGE MINER, OR ANY OTHER DISTRICT JUDGE TO WHOM THE
CASE MIGHT BE ASSIGNED, FROM FURTHER PROCEEDING UNDER IT.  A RULE TO
SHOW CAUSE WAS ISSUED BY THE COURT OF APPEALS AND, AFTER A HEARING, THE
APPLICATION FOR EXTRAORDINARY RELIEF, WHOSE AVAILABILITY IN THE
PARTICULAR CIRCUMSTANCES INVOLVED IS NOT CHALLENGED BEFORE US, WAS
GRANTED.  265 F.2D 312.  FOR REASONS PRESENTLY TO BE STATED, WE HAVE
CONCLUDED THAT THE COURT OF APPEALS' CONCLUSION WAS CORRECT, AND WE
AFFIRM ITS JUDGMENT. 

COUNSEL FOR THE CLAIMANTS, REPRESENTING THE PETITIONERS HERE,
UNDERTAKE TO SUPPORT THE DISCOVERY-DEPOSITION ORDER ON THE GROUNDS
THAT:  (1) A COURT OF ADMIRALTY HAS INHERENT POWER, NOT DEPENDENT ON
ANY STATUTE OR RULE, TO ORDER THE TAKING OF DEPOSITIONS FOR THE PURPOSE
OF DISCOVERY; (2) RULE 32C OF THIS COURT'S GENERAL ADMIRALTY RULES
IMPLIEDLY EMPOWERS A DISTRICT JUDGE TO ORDER THE TAKING OF SUCH
DEPOSITIONS; (3) RULE 32 OF THE DISTRICT COURT'S ADMIRALTY RULES IS A
VALID EXERCISE OF ITS POWER TO REGULATE LOCAL PRACTICE, CONFERRED BY
RULE 44 OF THE GENERAL ADMIRALTY RULES.  WE CONSIDER EACH CONTENTION IN
TURN. 

THE RELIANCE ON AN ASSERTED INHERENT POWER IS BASED ALMOST
EXCLUSIVELY ON THE DECISION OF THE COURT OF APPEALS FOR THE THIRD
CIRCUIT IN DOWLING V. ISTHMIAN S.S. CORP., 184 F.2D 758.  IN AN
EXHAUSTIVE DISCUSSION, JUDGE FEE, FOR THAT COURT, EXPRESSED THE VIEW
THAT THE TRADITIONALLY FLEXIBLE AND ADAPTABLE ADMIRALTY PRACTICE
EMPOWERS A COURT TO ORDER A PARTY TO SUBMIT TO PRETRIAL ORAL
EXAMINATION.  WHETHER OR NOT THE DECISION WAS INTENDED TO EMBRACE
EXAMINATIONS SOLELY FOR DISCOVERY PURPOSES IS NOT ENTIRELY CLEAR. 
COMPARE STANDARD STEAMSHIP CO. V. UNITED STATES, 126 F. SUPP. 583, WITH
DARLING'S ESTATE V. ATLANTIC CONTRACTING CORP., 150 F. SUPP.  578, 579;
1950 ANNUAL SURVEY OF AMERICAN LAW 523.  NONE OF THE HISTORICAL DATA
ADDUCED IN THE DOWLING CASE SEEMS TO GO BEYOND THE AREA OF TESTIMONY
FOR USE AT THE TRIAL.  THE OPINION STATES NO MORE THAN THAT HISTORY
DISCLOSES NO OVERT REJECTION OF THE POWER TO ORDER DEPOSITIONS TAKEN
FOR DISCOVERY PURPOSES.  184 F.2D, AT 771, N. 36.  THERE IS NO
AFFIRMATIVE INDICATION OF THE EXERCISE OF SUCH A POWER, IF ANY WAS
THOUGHT TO EXIST, AND THE 1940 EDITION OF BENEDICT ON ADMIRALTY
UNEQUIVOCALLY ASSERTS THAT "AN ADMIRALTY DEPOSITION MAY ONLY BE TAKEN
FOR THE PURPOSE OF SECURING EVIDENCE; IT MAY NOT BE TAKEN FOR THE
PURPOSE OF DISCOVERY."  3 BENEDICT, ADMIRALTY (KNAUTH ED.), 34.  THIS
STATEMENT BY A LEADING WORK IN THE FIELD HARDLY BESPEAKS THE EXISTENCE
OF TRADITIONAL INHERENT POWER, AND WE FIND NONE.  CF. CARY V. CURTIS, 3
HOW.  236, 245. 

NEITHER CAN WE FIND IN THIS COURT'S ADMIRALTY RULES WARRANT FOR THE
ENTRY BY A DISTRICT JUDGE OF AN ORDER OF THE CHARACTER GRANTED BELOW. 
THE DEPOSITION PRACTICE AUTHORIZED BY THE CIVIL RULES DOES NOT OF ITS
OWN FORCE PROVIDE THE AUTHORITY SOUGHT, SINCE THOSE RULES ARE EXPRESSLY
DECLARED INAPPLICABLE TO PROCEEDINGS IN ADMIRALTY.  CIVIL RULE
81(A)(1).  CERTAIN OF THE CIVIL RULES WERE ADOPTED BY THIS COURT AS
PART OF THE ADMIRALTY RULES IN THE 1939 AMENDMENTS, 307 U.S. 653. 
THUS, CIVIL RULES 33 THROUGH 37 WERE MADE PART OF THE ADMIRALTY RULES
AS RULES 31, 32, 32A, 32B, AND 32C, RESPECTIVELY.  (FN3)  HOWEVER, THE
REMAINDER OF THE CIVIL RULES IN PART V, DEALING WITH "DEPOSITIONS AND
DISCOVERY," INCLUDING RULE 26, THE BASIC AUTHORITY FOR DISCOVERY
DEPOSITION PRACTICE (SEE NOTE 1, ANTE), WAS NOT ADOPTED.  WE CANNOT OF
COURSE REGARD THIS SIGNIFICANT OMISSION AS INADVERTENT, CF. 76 A.B.A.
ANN. REP. 565-566; RATHER, IT GOES FAR TO ESTABLISH THE LACK OF ANY
PROVISION FOR DISCOVERY BY DEPOSITION IN THE GENERAL ADMIRALTY RULES. 

HOWEVER, PETITIONERS CONTEND, AND SOME COURTS HAVE AGREED, THAT THE
EXISTENCE OF SUCH A POWER IS TO BE INFERRED FROM RULE 32C, THE
COUNTERPART OF CIVIL RULE 37, ENTITLED, "REFUSAL TO MAKE DISCOVERY:
CONSEQUENCES."  THAT RULE DETAILS THE PROCEDURES WHICH ARE TO BE
FOLLOWED IF "A PARTY OR OTHER DEPONENT REFUSES TO ANSWER ANY QUESTION
PROPOUNDED UPON ORAL EXAMINATION  ...  ."  IT HAS BEEN HELD THAT THE
INCLUSION OF THIS RULE MUST BE TAKEN AS THE EXPRESSION OF AN ASSUMPTION
BY THE COURT THAT THE DISCOVERY-DEPOSITION PRACTICE EXISTED OR WAS TO
BE FOLLOWED IN ADMIRALTY, FOR THE REASON THAT "IT IS INCONCEIVABLE THAT
THE SUPREME COURT, BY MEANS OF THE ELABORATE AND DETAILED TERMS OF RULE
32C WOULD HAVE GIVEN A SUITOR IN ADMIRALTY A METHOD OF ENFORCING A
RIGHT THAT DID NOT EXIST."  BROWN V. ISTHMIAN S.S. CORP., 79 F. SUPP.
701, 702 (D.C.E.D. PA.).  IN ACCORD WITH THE BROWN DECISION ARE BUNGE
CORP. V. THE OURANIA GOURNARIS, 1949 A.M.C. 744 (D.C.S.D.N.Y.);
GALPERIN V. UNITED STATES, 1949 A.M.C. 1907 (D.C.E.D.N.Y.); THE
BALLANTRAE, 1949 A.M.C. 1999 (D.C.N.J.). 

THE DILEMMA THUS SUGGESTED - EITHER THAT WE MUST REGARD CIVIL RULE 26
AS INADVERTENTLY OMITTED FROM THE ADMIRALTY RULES (FN4) OR THAT WE
SHOULD CONSIDER THAT PART OF CIVIL RULE 37 WHICH REFERS TO ORAL
EXAMINATIONS AS INADVERTENTLY INCLUDED - IS MORE SEEMING THAN REAL. 
THE REFERENCE TO "DISCOVERY" IN THE TITLE TO RULE 32C CAN WELL HAVE
BEEN SIMPLY TO THE MODES OF DISCOVERY AUTHORIZED BY THOSE OF THE CIVIL
RULES WHICH WERE CARRIED INTO THE ADMIRALTY RULES IN THE 1939
AMENDMENTS, SEE NOTE 3, ANTE, AND WE THINK IT SHOULD SO BE TAKEN.  AS
TO THE REFERENCE TO "ORAL EXAMINATION," WE ARE IN AGREEMENT WITH THE
EXPLANATION OFFERED BY JUDGE RIFKIND IN MULLIGAN V. UNITED STATES, 87
F. SUPP. 79, 81, THAT IT COMPREHENDS ONLY THOSE FORMS OF ORAL
EXAMINATIONS TRADITIONALLY RECOGNIZED IN ADMIRALTY, PRIMARILY THE
DEPOSITION DE BENE ESSE (SEE NOTE 2, ANTE).  (FN5)  BY THIS
CONSTRUCTION, BOTH ACTIONS OF THIS COURT - THE ADOPTION OF CIVIL RULE
37 AND THE OMISSION OF CIVIL RULE 26 - ARE GIVEN HARMONIOUS EFFECT. 

PETITIONERS' THIRD CONTENTION IS THAT, ALTHOUGH ADMIRALTY COURTS WERE
NOT GIVEN AUTHORITY BY THE GENERAL ADMIRALTY RULES TO ORDER THE TAKING
OF DEPOSITIONS FOR DISCOVERY PURPOSES, THE DISTRICT COURT IN THE
PRESENT CASE ACTED PURSUANT TO ITS OWN LOCAL ADMIRALTY RULE 32 (SEE
NOTE 1, ANTE) GRANTING SUCH AUTHORITY, AND THAT SUCH RULE WAS A VALID
EXERCISE OF POWER CONFERRED ON THE DISTRICT COURT BY RULE 44 OF THE
GENERAL RULES.  SEE LUDENA V. THE SANTA LUISA, 95 F. SUPP. 790
(D.C.S.D.N.Y.); APPLICATION OF A. PELLEGRINO & SON, 11 F.R.D. 209
(D.C.S.D.N.Y.); CF. REPUBLIC OF FRANCE V. BELSHIPS CO., LTD., 91 F.
SUPP. 912; PRUDENTIAL STEAMSHIP CORP. V. CURTIS BAY TOWING CO., 20
F.R.D. 356 (D.C. MD.).  RULE 44, ENTITLED "RIGHT OF TRIAL COURTS TO
MAKE RULES OF PRACTICE," PROVIDES: 

"IN SUITS IN ADMIRALTY IN ALL CASES NOT PROVIDED FOR BY THESE RULES
OR BY STATUTE, THE DISTRICT COURTS ARE TO REGULATE THEIR PRACTICE IN
SUCH A MANNER AS THEY DEEM MOST EXPEDIENT FOR THE DUE ADMINISTRATION OF
JUSTICE, PROVIDED THE SAME ARE NOT INCONSISTENT WITH THESE RULES." 

WE MAY ASSUME, WITHOUT DECIDING, THAT, THE PROVISO APART, THE
AFFIRMATIVE GRANT OF AUTHORITY CONTAINED IN RULE 44 IS SUFFICIENTLY
BROAD AND UNQUALIFIED, IN LIGHT OF THE TRADITIONAL LIBERALITY AND
FLEXIBILITY OF ADMIRALTY PRACTICE, TO EMBRACE THE "PRACTICE" OF TAKING
DEPOSITIONS FOR DISCOVERY PURPOSES.  CF. GALVESTON DRY DOCK & CONSTR. 
CO. V. STANDARD DREDGING CO., 40 F.2D 442.  HOWEVER, WE FEEL
CONSTRAINED TO HOLD THAT THIS PARTICULAR PRACTICE IS NOT CONSISTENT
WITH THE PRESENT GENERAL ADMIRALTY RULES AND THEREFORE THAT IN THIS
RESPECT LOCAL RULE 32 FALLS WITHIN THE PROVISO.  (FN6) 

AS WE HAVE NOTED, THE DETERMINATION OF THIS COURT IN 1939 TO
PROMULGATE SOME BUT NOT ALL OF THE CIVIL RULES RELATING TO DISCOVERY
MUST BE TAKEN AS AN ADVERTENT DECLINATION OF THE OPPORTUNITY TO
INSTITUTE THE DISCOVERY-DEPOSITION PROCEDURE OF CIVIL RULE 26(A)
THROUGHOUT COURTS OF ADMIRALTY.  IT MAY BE, SEE 76 A.B.A. ANN. REP. 565
566, (FN7) THAT ONE REASON FOR THIS FAILURE WAS THE BELIEF THAT THIS
COURT COULD NOT TAKE OVER INTO ADMIRALTY IN ITS ENTIRETY CIVIL RULE
26.  THE ENABLING ACT DID NOT THEN, R.S. SEC. 913, ALTHOUGH IT DOES
NOW, 28 U.S.C.  SEC. 2073, AUTHORIZE THE COURT TO SUPERSEDE STATUTES,
AND THE LIMITATIONS OF THE DE BENE ESSE STATUTE WOULD THEREFORE HAVE
OVERRIDDEN CIVIL RULE 26(D) TO THE EXTENT THE STATUTE WAS MORE
RESTRICTIVE.  NEVERTHELESS IT DOES SEEM CLEAR THAT THE PART OF CIVIL
RULE 26 WITH WHICH WE ARE NOW CONCERNED COULD HAVE BEEN PROMULGATED IN
ADMIRALTY, CF. NOTE 6, ANTE.  BUT FOR WHATEVER REASON, NO ACTION WAS
TAKEN. 

IT IS OF COURSE TRUE THAT THE FAILURE TO ADOPT CIVIL RULE 26 IMPLIES
NO MORE THAN THAT THIS COURT DID NOT WISH TO IMPOSE THE PRACTICE ON THE
DISTRICT COURTS, AND DOES NOT NECESSARILY BESPEAK AN INTENTION TO
FORECLOSE EACH DISTRICT COURT FROM EXERCISING A "LOCAL OPTION" UNDER
RULE 44.  WE DO NOT DENY THE LOGIC OF THIS CONTENTION; NEITHER DO WE
HOLD THAT WHENEVER THE GENERAL ADMIRALTY RULES DEAL WITH PART, BUT NOT
ALL, OF A SUBJECT, THOSE PRACTICES LEFT UNPROVIDED FOR BY THE GENERAL
RULES MAY NOT IN ANY CIRCUMSTANCES BE DEALT WITH BY THE DISTRICT COURTS
UNDER GENERAL RULE 44.  UNLIKE MANY STATE PRACTICE STATUTES, THIS
COURT'S RULES OF ADMIRALTY PRACTICE FOR THE DISTRICT COURTS ARE NOT
COMPREHENSIVE CODES REGULATING EVERY DETAIL OF PRACTICE, AND WE WOULD
BE SLOW TO HOLD THAT THE INTERSTICES MAY NOT BE THE SUBJECT OF
APPROPRIATE LOCAL REGULATION.  FOR EXAMPLE, RULES FIXING THE TIME FOR
DOING CERTAIN ACTS ARE OF THE ESSENCE OF ORDERLY PROCEDURE.  SO LONG AS
THE TIME SET BE NOT UNREASONABLE, IT IS LESS IMPORTANT WHAT THE LIMIT
BE THAN THAT THERE BE A RULE WHEREBY SOME TIMETABLE MAY BE KNOWN TO THE
PROFESSION.  THUS, THE FAILURE OF THE GENERAL ADMIRALTY RULES TO
PRESCRIBE A TIME WITHIN WHICH MOTIONS FOR REHEARING MAY BE FILED SHOULD
NOT BAR A DISTRICT COURT FROM FIXING SUCH A TIME LIMIT.  SEE
PAPANIKOLAOU V. ATLANTIC FREIGHTERS, 232 F.2D 663, 665.  SIMILARLY, THE
GENERAL ADMIRALTY RULES PROVIDE NO ANSWER TO THE QUESTION WHETHER ONE
SUED FOR A CERTAIN SUM, WHO CONTESTS HIS LIABILITY FOR BUT A PORTION OF
THAT SUM, MAY BE REQUIRED TO SUFFER A JUDGMENT FOR THE REMAINDER PRIOR
TO TRIAL ON THE CONTESTED PORTION, AND THERE IS NO COMPELLING REASON
WHY THAT LACK SHOULD BE HELD TO PREVENT A DISTRICT COURT FROM SUPPLYING
AN ANSWER BY LOCAL RULE.  SEE GALVESTON DRY DOCK & CONSTR.  CO. V.
STANDARD DREDGING CO., SUPRA. 

WE DEAL HERE ONLY WITH THE PROCEDURE BEFORE US, AND OUR DECISION IS
BASED ON ITS PARTICULAR NATURE AND HISTORY.  DISCOVERY BY DEPOSITION IS
AT ONCE MORE WEIGHTY AND MORE COMPLEX A MATTER THAN EITHER OF THE
EXAMPLES JUST DISCUSSED OR OTHERS THAT MIGHT COME TO MIND.  ITS
INTRODUCTION INTO FEDERAL PROCEDURE WAS ONE OF THE MAJOR ACHIEVEMENTS
OF THE CIVIL RULES, AND HAS BEEN DESCRIBED BY THIS COURT AS "ONE OF THE
MOST SIGNIFICANT INNOVATIONS" OF THE RULES.  HICKMAN V. TAYLOR, 329
U.S. 495, 500.  MOREOVER, THE CHOICE OF PROCEDURES ADOPTED TO GOVERN
VARIOUS SPECIFIC PROLBEMS ARISING UNDER THE SYSTEM WAS IN SOME
INSTANCES HARDLY LESS SIGNIFICANT THAN THE INITIAL DECISION TO HAVE
SUCH A SYSTEM.  IT SHOULD BE OBVIOUS THAT WE ARE NOT HERE DEALING
EITHER WITH A BARE CHOICE BETWEEN AN AFFIRMATIVE OR A NEGATIVE ANSWER
TO A NARROW QUESTION, OR EVEN LESS WITH THE NECESSARY CHOICE OF A RULE
TO DEAL WITH A PROBLEM WHICH MUST HAVE AN ANSWER, BUT NEED NOT HAVE ANY
PARTICULAR ONE.  RATHER, THE MATTER IS ONE WHICH, THOUGH CONCEDEDLY
"PROCEDURAL," MAY BE OF AS GREAT IMPORTANCE TO LITIGANTS AS MANY A
"SUBSTANTIVE" DOCTRINE, AND WHICH ARISES IN A FIELD OF FEDERAL
JURISDICTION WHERE NATIONWIDE UNIFORMITY HAS TRADITIONALLY ALWAYS BEEN
HIGHLY ESTEEMED. 

THE PROBLEM THEN IS ONE WHICH PECULIARLY CALLS FOR EXACTING
OBSERVANCE OF THE STATUTORY PROCEDURES SURROUNDING THE RULE-MAKING
POWERS OF THE COURT, SEE 28 U.S.C. SEC. 331 (ADVISORY FUNCTION OF
JUDICIAL CONFERENCE), 28 U.S.C. SEC. 2073 (PRIOR REPORT OF PROPOSED
RULE TO CONGRESS), DESIGNED TO INSURE THAT BASIC PROCEDURAL INNOVATIONS
SHALL BE INTRODUCED ONLY AFTER MATURE CONSIDERATION OF INFORMED OPINION
FROM ALL RELEVANT QUARTERS, WITH ALL THE OPPORTUNITIES FOR
COMPREHENSIVE AND INTEGRATED TREATMENT WHICH SUCH CONSIDERATION
AFFORDS.  HAVING ALREADY CONCLUDED THAT THE DISCOVERY-DEPOSITION
PROCEDURE IS NOT AUTHORIZED BY THE GENERAL ADMIRALTY RULES THEMSELVES,
WE SHOULD HESITATE TO CONSTRUE GENERAL RULE 44 AS PERMITTING A CHANGE
SO BASIC AS THIS TO BE EFFECTUATED THROUGH THE LOCAL RULE-MAKING POWER,
ESPECIALLY WHEN THAT COURSE WAS NEVER REPORTED TO CONGRESS (FN8) AS
WOULD NOW BE REQUIRED UNDER 28 U.S.C. SEC. 2073.    WE ARE STRONGLY
REINFORCED IN OUR CONCLUSION BY THE POST-1939 HISTORY OF THE QUESTION
OF ADOPTION OF DISCOVERY-DEPOSITION RULES IN THE GENERAL ADMIRALTY
RULES.  IN THE 1948 REVISION OF THE JUDICIAL CODE THIS COURT WAS GIVEN
THE POWER TO SUPERSEDE STATUTES, WHICH IT LACKED IN 1939.  IN 1951 A
JOINT COMMITTEE REPRESENTING SEVERAL LEADING BAR ASSOCIATIONS PROPOSED
THE ADOPTION OF A RULE PERMITTING THE TAKING OF THE DEPOSITION OF A
PARTY FOR DISCOVERY PURPOSES.  SEE 76 A.B.A. ANN. REP. 181; MARITIME
LAW ASSN., DOC. NO. 348 (SEPT. 1951).  NO ACTION WAS TAKEN.  IN 1953 IT
WAS RECOMMENDED THAT RULE 26(A) BE MADE APPLICABLE TO PROCEEDINGS IN
ADMIRALTY, WITH TWO MINOR MODIFICATIONS; THIS WOULD OF COURSE HAVE
PERMITTED DISCOVERY BY DEPOSITION OF WITNESSES AS WELL AS PARTIES. 
MARITIME LAW ASSN., DOC. NO. 369 (APR. 1953).  AGAIN NO ACTION WAS
TAKEN.  WE DO NOT THINK THIS FAILURE TO ENACT THE PROPOSED AMENDMENTS
CAN BE EXPLAINED AWAY BY SUGGESTING THAT THE WIDESPREAD LOCAL ADOPTION
OF RULES SIMILAR TO THE LOCAL RULE NOW BEFORE US (FN9) WAS THOUGHT TO
RENDER AMENDMENT OF THE GENERAL RULES UNNECESSARY, FOR LOCAL RULES, BY
VIRTUE OF THE INABILITY OF THE DISTRICT COURTS TO SUPERSEDE STATUTES,
CANNOT DEAL WITH THE MATTER OF THE TAKING AND USE OF DEPOSITIONS AS AN
INTEGRATED WHOLE.  SEE MERCADO V. UNITED STATES, 184 F.2D 24 (C.A.2D
CIR.). 

IT HARDLY NEED BE ADDED THAT OUR DECISION HERE IN NO WAY IMPLIES ANY
VIEW AS TO THE DESIRABILITY OR UNDESIRABILITY OF HAVING A DISCOVERY
DEPOSITION PROCEDURE IN ADMIRALTY CASES.  THOSE WHO ADVISE THE COURT
WITH RESPECT TO THE EXERCISE OF ITS RULE-MAKING POWERS - MORE
PARTICULARLY OF COURSE THE JUDICIAL CONFERENCE OF THE UNITED STATES (28
U.S.C. SEC. 331) AND THE NEWLY CREATED ADVISORY COMMITTEE ON THE
GENERAL ADMIRALTY RULES, WHICH IT IS TO BE HOPED WILL GIVE THE MATTER
THEIR EARLY ATTENTION - ARE LEFT WHOLLY FREE TO APPROACH THE QUESTION
OF AMENDMENT OF THE DISCOVERY PROVISIONS OF THE RULES IN THE LIGHT OF
WHATEVER CONSIDERATIONS SEEM RELEVANT TO THEM, INCLUDING OF COURSE THE
EXPERIENCE GAINED BY THE DISTRICT COURTS WHICH HAVE HAD RULES SIMILAR
TO THE LOCAL RULE HERE CHALLENGED.  NOR WOULD ANYTHING WE HAVE SAID
PREVENT THOSE BODIES FROM RECOMMENDING THAT THE MATTER OF DISCOVERY
DEPOSITIONS BE LEFT TO LOCAL RULE MAKING.  ALL WE DECIDE IN THE
EXISTING POSTURE OF AFFAIRS IS THAT THE MATTER OF DISCOVERY-DEPOSITIONS
IS NOT PRESENTLY PROVIDED FOR IN THE GENERAL ADMIRALTY RULES OR
ENCOMPASSED WITHIN THE LOCAL RULE-MAKING POWER UNDER GENERAL RULE 44. 
AFFIRMED. 

FN1  LOCAL RULE 32 PROVIDES THAT THE "TAKING AND USE OF DEPOSITIONS
OF PARTIES AND WITNESSES SHALL BE GOVERNED BY THE FEDERAL RULES OF
CIVIL PROCEDURE EXCEPT AS OTHERWISE PROVIDED BY STATUTE AND EXCEPT THAT
THEIR USE" IS LIMITED AS SET FORTH IN THE RULE.  RULE 26(A) OF THE
CIVIL RULES PERMITS THE TAKING OF "THE TESTIMONY OF ANY PERSON,
INCLUDING A PARTY, BY DEPOSITION UPON ORAL EXAMINATION ...  FOR THE
PURPOSE OF DISCOVERY OR FOR USE AS EVIDENCE IN THE ACTION OR FOR BOTH
PURPOSES," SUBJECT TO LIMITATIONS AS TO USE OF SUCH DEPOSITIONS SET
FORTH IN RULE 26(D). 

FN2  THIS STATUTE, AS AMENDED, 31 STAT. 182, IS NOW APPLICABLE ONLY
TO PROCEEDINGS IN ADMIRALTY.  SEE NOTE PRECEDING 28 U.S.C. SEC. 1781. 
WITNESS IN A PENDING ACTION, IN THE FOLLOWING CIRCUMSTANCES ONLY:  "
...  WHEN THE WITNESS LIVES AT A GREATER DISTANCE FROM THE PLACE OF
TRIAL THAN ONE HUNDRED MILES, OR IS BOUND ON A VOYAGE TO SEA, OR IS
ABOUT TO GO OUT OF THE UNITED STATES, OR OUT OF THE DISTRICT IN WHICH
THE CASE IS TO BE TRIED, AND TO A GREATER DISTANCE THAN ONE HUNDRED
MILES FROM THE PLACE OF TRIAL, BEFORE THE TIME OF TRIAL, OR WHEN HE IS
ANCIENT AND INFIRM  ...  ." 

THE DEPOSITION IS ADMISSIBLE AT TRIAL ONLY IN THE EVENT OF THE
DEPONENT'S DEATH, ABSENCE FROM THE COUNTRY, PRESENCE AT A DISTANCE
GREATER THAN 100 MILES FROM THE PLACE OF TRIAL, OR INABILITY TO TRAVEL
AND APPEAR BY REASON OF AGE, ILL HEALTH, OR IMPRISONMENT.  R.S. SEC.
865. 

FN3  CIVIL RULE 33, ADOPTED AS ADMIRALTY RULE 31, IS ENTITLED,
"INTERROGATORIES TO PARTIES"; CIVIL RULE 34 (ADMIRALTY RULE 32) RELATES
TO "DISCOVERY AND PRODUCTION OF DOCUMENTS AND THINGS FOR INSPECTION,
COPYING, OR PHOTOGRAPHING"; CIVIL RULE 35 (ADMIRALTY RULE 32A)
AUTHORIZES "PHYSICAL AND MENTAL EXAMINATION OF PERSONS"; CIVIL RULE 36
(ADMIRALTY RULE 32B) GOVERNS "ADMISSION OF FACTS AND OF GENUINENESS OF
DOCUMENTS"; CIVIL RULE 37 (ADMIRALTY RULE 32C) DEALS WITH "REFUSAL TO
MAKE DISCOVERY:  CONSEQUENCES." 

FN4  FOR REASONS STATED, ANTE, PP. 643-644, WE CANNOT REGARD THE
OMISSION AS THE RESULT OF A SO WELL-SETTLED PRACTICE OF USING
DEPOSITIONS FOR DISCOVERY IN ADMIRALTY THAT CODIFICATION WAS THOUGHT
UNNECESSARY.  SEE MULLIGAN V. UNITED STATES, 87 F. SUPP. 79, 80. 

FN5  APART FROM THE DE BENE ESSE PROCEDURE, ADMIRALTY PRACTICE
TRADITIONALLY UTILIZED THE COMMISSION DEDIMUS POTESTATUM, THE
DEPOSITION IN PERPETUAM REI MEMORIAE, AND LETTER ROGATORY.  THE
STATUTORY AUTHORITY FOR THESE PROCEDURES, R.S. SECS. 866-870, 875, WAS
NOT REPEALED UNTIL THE 1948 CODIFICATION OF THE JUDICIAL CODE, SOME
YEARS AFTER THE 1939 AMENDMENTS TO THE ADMIRALTY RULES.  FOR A
DISCUSSION OF THEM, SEE 3 BENEDICT, ADMIRALTY, SECS. 397-401. 

JUDGE RIFKIND'S REJECTION OF THE BROWN DECISION HAS BEEN FOLLOWED BY
SEVERAL DISTRICT JUDGES.  SEE KELLEHER V. UNITED STATES, 88 F. SUPP.
139 (D.C.S.D.N.Y.); CF. STANDARD STEAMSHIP CO. V. UNITED STATES, SUPRA
(D.C. DEL.); GULF OIL CORP. V. ALCOA S.S. CO., 1949 A.M.C. 1965
(D.C.S.D.N.Y.). 

FN6  WE DO NOT FIND SUCH INCONSISTENCY IN ADMIRALTY RULE 46,
REQUIRING THAT "THE TESTIMONY OF WITNESSES ...  BE TAKEN ORALLY IN OPEN
COURT, EXCEPT AS OTHERWISE PROVIDED BY STATUTE, OR AGREEMENT OF
PARTIES."  WE REGARD THAT PROVISION AS HAVING BEEN PROMULGATED WITH
REFERENCE TO THE TRIAL AND NOT THE DISCOVERY STAGE OF THE LAWSUIT.  SEE
REPUBLIC OF FRANCE V. BELSHIPS CO., LTD., SUPRA. 

FOR MUCH THE SAME REASON, WE DO NOT DEEM THE CHALLENGED RULE
INCONSISTENT WITH THE DE BENE ESSE STATUTE, NOTE 2, ANTE.  THAT STATUTE
IS CONCERNED WITH THE TAKING OF DEPOSITIONS FOR USE AT TRIAL, AND NOT
FOR DISCOVERY.  THE LIMITATIONS ON THE TAKING OF A DEPOSITION ARE
EVIDENTLY THE PRODUCT OF THE LIMITATIONS ON USE.  A DISCOVERY
DEPOSITION NOT MEETING THE CONDITIONS OF THE STATUTE MAY NOT BE
ADMITTED INTO EVIDENCE AT THE TRIAL, MERCADO V. UNITED STATES, 184 F.2D
24 (C.A.2D CIR.), BUT WHERE A DEPOSITION IS NOT SOUGHT TO BE TAKEN FOR
USE AT TRIAL, WE SEE NO REASON TO REGARD THE STATUTE AS A BAR.  SEE
REPUBLIC OF FRANCE V. BELSHIPS CO., LTD., SUPRA. 

FN7  THE BAR ASSOCIATION REPORT, IN REFERRING TO "CHIEF JUSTICE
STONE," IS IN ERROR.  THE CHIEF JUSTICE IN 1939 WAS CHARLES EVANS
HUGHES. 

FN8  R.S. SEC. 913, THE PREDECESSOR SOURCE OF THIS COURT'S AUTHORITY
TO PROMULGATE ADMIRALTY RULES, IN EFFECT WHEN RULE 44 WAS ADOPTED, DID
NOT, AS DOES 28 U.S.C. SEC. 2073, REQUIRE THE PRIOR REPORTING OF SUCH
RULES TO CONGRESS. 

FN9  SEE, E.G., SOUTHERN DISTRICT OF NEW YORK, ADMIRALTY RULE 32;
SOUTHERN AND NORTHERN DISTRICTS OF FLORIDA, ADMIRALTY RULE 24; NORTHERN
DISTRICT OF CALIFORNIA, ADMIRALTY RULE 13.  SEE ALSO DARLING'S ESTATE
V. ATLANTIC CONTRACTING CORP., SUPRA (D.C.E.D. VA.); BROWN V. ISTHMIAN
S.S. CORP., SUPRA (D.C.E.D. PA.). 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

THE COURT TODAY STRIKES DOWN A LOCAL ADMIRALTY RULE WHICH HAS
COUNTERPARTS IN DISTRICT COURTS THROUGHOUT THE COUNTRY.  IN FACT, THE
STATISTICS OF THE MOST RECENT FISCAL YEAR IN THE EXPERIENCE OF THE
FEDERAL COURTS INDICATE THAT OVER HALF THE ADMIRALTY LITIGATION IN THE
FEDERAL COURTS IS CONDUCTED IN COURTS HAVING DISCOVERY-DEPOSITION RULES
LIKE THE ONE TODAY NULLIFIED.  (FN1)  I CANNOT AGREE TO A JUDGMENT
WHICH LIGHTLY BRINGS ABOUT SO WIDESPREAD A TURNING BACK OF THE CLOCK IN
THE ADMIRALTY PRACTICE THROUGHOUT THE NATION. 

I AGREE WITH THE COURT THAT THE FIRST AND SECOND CONTENTIONS OF THE
PETITIONERS, ON WHICH RELIANCE IS PUT THAT THE JUDGMENT SHOULD BE
REVERSED, ARE NOT WELL TAKEN; (FN2) BUT I MUST DISSENT FROM THE COURT'S
REJECTION OF THE THIRD, AND TRULY SUBSTANTIAL, CONTENTION OF
PETITIONERS.  THIS IS THAT THE ORDER FOR DISCOVERY DEPOSITIONS MADE
HERE WAS SANCTIONED BY THE DISTRICT COURT'S LOCAL ADMIRALTY RULE 32 AND
THAT THAT RULE IS A VALID EXERCISE OF THE DISTRICT COURT'S RULEMAKING
POWER.  THERE IS NO DOUBT THAT THE ORDER IN QUESTION WAS AUTHORIZED BY
THE LOCAL RULE; AND SO THE ONLY QUESTION IS OF THE RULE'S VALIDITY. 
THE QUESTION IS ONE OF POWER; AND TO ME THE COURT'S OPINION FAILS
COMPLETELY TO DEMONSTRATE A LACK OF POWER TO PROMULGATE THE RULE IN
QUESTION IN THIS DISTRICT COURT AND THE MANY DISTRICT COURTS HAVING A
VERY SUBSTANTIAL ADMIRALTY BUSINESS WHICH HAVE ADOPTED SIMILAR RULES. 
THE LOCAL RULE WAS PROMULGATED UNDER AUTHORITY OF THIS COURT'S GENERAL
ADMIRALTY RULE 44, WHICH PROVIDES: 

"RULE 44.  RIGHT OF TRIAL COURTS TO MAKE RULES OF PRACTICE. 

"IN SUITS IN ADMIRALTY IN ALL CASES NOT PROVIDED FOR BY THESE RULES
OR BY STATUTE, THE DISTRICT COURTS ARE TO REGULATE THEIR PRACTICE IN
SUCH A MANNER AS THEY DEEM MOST EXPEDIENT FOR THE DUE ADMINISTRATION OF
JUSTICE, PROVIDED THE SAME ARE NOT INCONSISTENT WITH THESE RULES." 

THE AUTHORITY ESTABLISHED BY GENERAL ADMIRALTY RULE 44, UNDER THIS
COURT'S STATUTORY POWERS, IS SEPARATE IN FORM AND DIFFERENT IN
EXPRESSION FROM THE GENERAL STATUTORY AUTHORITY OF THE DISTRICT COURTS,
WITH THE OTHER FEDERAL COURTS, TO MAKE "RULES FOR THE CONDUCT OF THEIR
BUSINESS."  28 U.S.C. SEC. 2071.  (FN3)  WHATEVER THE PRECISE CONTENT
OF SEC. 2071, I THINK AS A SEPARATE AUTHORITY GENERAL ADMIRALTY RULE 44
MUST BE READ SEPARATELY AS A GRANT OF POWER TO THE DISTRICT COURTS TO
MAKE ADMIRALTY RULES OF PROCEDURE EFFECTIVE AS TO ACTIONS WITHIN THEM,
SUBJECT ONLY TO THE LIMITATIONS SPECIFIED IN THE RULE OR OTHERWISE
IMPLICIT IN LAW.  THIS SEEMS TO BE THE OBVIOUS MEANING OF THE RULE, AND
IT SHOULD BE TAKEN AT ITS FACE VALUE.  SEE PAPANIKOLAOU V. ATLANTIC
FREIGHTERS, LTD., 232 F.2D 663, 665; GALVESTON DRY DOCK & CONSTRUCTION
CO. V. STANDARD DREDGING CO., 40 F.2D 442, 444.  (FN4)  CF. BRITISH
TRANSPORT COMMISSION V. UNITED STATES, 354 U.S. 129, 138.  CIVIL RULE
83 IS QUITE SIMILAR IN CONCEPT, AND APPEARS TO BE GIVEN A COMPARABLE
INTERPRETATION.  RUSSELL V. CUNNINGHAM, 233 F.2D 806, 811; 7 MOORE,
FEDERAL PRACTICE (2D ED.), PARA. 83.03.  CF. UNITED STATES V. HVASS,
355 U.S. 570, 575. 

CLEARLY A RULE PROVIDING FOR DISCOVERY BY WAY OF DEPOSITION PRACTICE
IS ONE REGULATING PROCEDURE.  SEE SIBBACH V. WILSON & CO., 312 U.S. 1. 
THE COURT DOES NOT VENTURE TO DENY THIS.  OF COURSE THIS PROCEDURAL
RULE MAY BE AS IMPORTANT AS MANY A "SUBSTANTIVE" DOCTRINE, BUT THERE IS
NOTHING IN GENERAL RULE 44 CONFINING THE LOCAL RULEMAKING POWER TO
EXERCISES IN THE TRIVIAL.  HENCE THE DISTRICT COURT RULE IS PRIMA FACIE
VALID (AS THE COURT APPARENTLY ADMITS), AND WE MUST EXAMINE WHETHER IT
IS INVALIDATED BY REASON OF CONFLICT WITH SOME RULE PROMULGATED BY THIS
COURT, OR SOME STATUTE.  NO STATUTE PRECLUDES THE LOCAL RULE; (FN5) BUT
THE COURT HOLDS THAT IT IS PRECLUDED BY SOME OF THIS COURT'S GENERAL
ADMIRALTY RULES.  THE COURT GINGERLY DRAWS SOME SUPPORT FROM THE
CIRCUMSTANCE THAT THE AMENDATORY ADMIRALTY RULES PROMULGATED BY THIS
COURT IN 1939 - GENERAL ADMIRALTY RULES 31 THROUGH 32C - INCORPORATED
SOME OF THE CIVIL RULES' DISCOVERY DEVICES BUT NOT OTHERS.  ON THIS
BASIS IT IS CONCLUDED THAT THE DISTRICT COURTS ARE PRECLUDED FROM
ADOPTING LOCAL RULES THAT ESTABLISH IN ADMIRALTY THE CIVIL RULES
DISCOVERY DEVICES NOT ADOPTED IN THE GENERAL ADMIRALTY RULES - SUCH AS
CIVIL RULE 26.  (FN6)  BUT CERTAINLY THIS NEGATIVE INFERENCE DOES NOT
FOLLOW.  THIS COURT'S PROMULGATION OF GENERAL ADMIRALTY RULES 31
THROUGH 32C MADE THE OBSERVANCE OF THOSE RULES, COUNTERPARTS OF CIVIL
RULES AS THEY WERE, MANDATORY ON THE DISTRICT COURTS.  AS TO THOSE
CIVIL RULES DEALING WITH DISCOVERY AND PRETRIAL PRACTICE THAT WERE NOT
ADOPTED BY GENERAL ADMIRALTY RULES, THE INFERENCE IS OBVIOUS THAT THEY
WERE NOT MADE MANDATORY UPON THE DISTRICT COURTS; BUT IT DOES NOT
FOLLOW THAT THE DISTRICT COURTS' POWER UNDER GENERAL ADMIRALTY RULE 44
IN REGARD TO LOCAL RULES WAS LESSENED.  THIS COURT DECIDED THAT THE
RULES IT PROMULGATED IN THE DISCOVERY AREA WERE ENOUGH FOR THE TIME
BEING AS GENERAL ADMIRALTY RULES; BUT THERE IS NOT A WORD IN THE RULES
THAT INHIBITS THE DISTRICT COURTS FROM GOING FURTHER IF THEY DESIRE. 
THE TEST OF GENERAL RULE 44 IS SIMPLY WHETHER THE LOCAL RULES ARE "NOT
INCONSISTENT" WITH THE GENERAL.  THERE IS NOT A WORD IN THE GENERAL
RULES INDICATING THAT THEIR DISCOVERY DEVICES SHALL CONSTITUTE THE ONLY
ONES PERMISSIBLE.  (FN7)  HOW THEN DOES THE COURT COME TO A CONTRARY
CONCLUSION? 

THE COURT'S BASIC REASON, IT APPEARS, WHY THIS LOCAL RULE IS TO BE
HELD VOID UNDER THE NEGATIVE IMPLICATIONS OF THE 1939 AMENDMENTS TO THE
GENERAL ADMIRALTY RULES, IS THAT IT WAS NOT PROMULGATED WITH THE
SAFEGUARDS PROVIDED FOR IN THE CURRENT GENERAL ADMIRALTY RULES ENABLING
ACT.  28 U.S.C. SEC. 2073; SEE ALSO 28 U.S.C. SEC. 331 (ADVISORY
FUNCTION OF JUDICIAL CONFERENCE).  THERE ARE MANY ANSWERS TO THIS
CONTENTION.  PERHAPS THE MOST BASIC IS THAT THESE SAFEGUARDS ARE
RELEVANT ONLY TO GENERAL ADMIRALTY RULES - RULES WHICH ARE PROMULGATED
BY THIS COURT, AND WHOSE OBSERVANCE IS MANDATORY IN ADMIRALTY
THROUGHOUT THE COUNTRY.  THE STATUTES THAT ORDAIN THOSE SAFEGUARDS DO
NOT REQUIRE THEM OF LOCAL RULES; AND THIS REFLECTS THE DIFFERENCE IN
CONGRESS' APPROACH BETWEEN RULEMAKING CARRIED ON ON A LOCAL BASIS, AND
GENERAL RULE-MAKING, WHICH ENDS ALL FORMS OF LOCAL INNOVATIONS AND
PRESCRIBES A RULE FOR THE WHOLE COUNTRY.  (FN8)  IF THE DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS HAD ATTEMPTED TO PROMULGATE A
RULE FOR THE WHOLE COUNTRY, THE COURT'S OBSERVATIONS WOULD HAVE SOME
POINT.    FURTHERMORE, ONE OF THE PROTECTIVE PROVISIONS - THE PROVISION
FOR JUDICIAL CONFERENCE ADVICE (WHICH IS NOT MANDATORY EVEN ON THIS
COURT, INCIDENTALLY) - WAS NOT EVEN IN EFFECT AS TO GENERAL RULES AT
THE TIME THIS LOCAL RULE WAS ADOPTED.  (FN9)  AND THE GENERAL ADMIRALTY
RULES ADDITIONS OF 1939, WHICH INTRODUCED SWEEPING LIBERALIZATIONS OF
DISCOVERY PRACTICE, AND WHICH THE COURT FINDS PRECLUSIVE OF THIS
SUPPLEMENTARY LOCAL RULE, WERE PROMULGATED WITH NONE OF THESE
SAFEGUARDS - WITH NO ADVISORY REPORT AT ALL, AND WITH NO SUBMISSION TO
CONGRESS.  YET THERE IS NO DOUBT AS TO THEIR VALIDITY.  THE REASON OF
COURSE IS THAT THERE WAS NO STATUTORY REQUIREMENT FOR THE USE OF THESE
PROCEDURES; THE COURT HAD THE POWER TO PROMULGATE THESE RULES WITHOUT
THEM.  AND UNQUESTIONABLY IN 1939 THIS COURT COULD HAVE PROMULGATED A
GENERAL RULE IN THE TERMS OF THE LOCAL RULE HERE.  (FN10) BY THE SAME
TOKEN, SO DID THE DISTRICT COURT, UNDER GENERAL ADMIRALTY RULE 44,
WHICH STOOD SIDE-BY-SIDE WITH THE 1939 AMENDMENTS, HAVE THE POWER TO
MAKE THIS LOCAL RULE WITHOUT REFERENCE TO CONGRESS; THERE WAS NO
STATUTE REQUIRING IT TO MAKE SUCH A REFERENCE AND IN FACT NO PROCEDURE
BY WHICH THE REFERENCE COULD HAVE BEEN MADE.  THE LOCAL RULE MAY BE ONE
PROVIDING FOR A "BASIC" CHANGE IN PROCEDURE, BUT IT IS STILL A LOCAL
RULE; IT WAS VALIDLY AUTHORIZED BY GENERAL ADMIRALTY RULE 44 TO BE
PROMULGATED, AS LOCAL RULES MAY BE PROMULGATED, WITHOUT REFERENCE TO
CONGRESS; AND I THINK WE BREAK FAITH WITH THE DISTRICT COURTS WHEN WE
GIVE THEM A POWER WHICH WE LATER DECLARE TO BE A MIRAGE. 

THE COURT FINDS SUPPORT FOR ITS POSITION FROM THE FACT THAT THIS
COURT HAS NEVER PROMULGATED A GENERAL RULE FOR DEPOSITION-DISCOVERY
SINCE 1948, WHEN IT RECEIVED THE POWER TO SUPERSEDE STATUTES IN THE
EXERCISE OF ITS GENERAL ADMIRALTY RULE-MAKING POWER.  TO BE SURE, CIVIL
RULE 26 THEN COULD HAVE BEEN PROMULGATED IN ADMIRALTY BY THIS COURT (AS
IT COULD NOT HAVE BEEN BEFORE, IN TOTO).  BUT THE LOCAL RULE, WHICH
DOES NOT CONTAIN ANY PROVISION CONTRARY TO EXISTING STATUTES, (FN11)
WAS NOT DEPENDENT ON ANY SUCH POWER.  IT DID NOT REQUIRE THE EXERCISE
OF A POWER RESERVED EXCLUSIVELY TO THIS COURT.  AND THE FAILURE OF THIS
COURT TO PROMULGATE A GENERAL RULE IN THE POST-1948 ERA HARDLY REFLECTS
ON THE VALIDITY OF THE LOCAL RULES.  PERHAPS THIS COURT THOUGHT THAT
THE TIME WAS NOT RIPE FOR A GENERAL RULE; THAT THE PROBLEM FOR A WHILE
WAS BEST APPROACHED THROUGH LOCAL EXPERIMENTATION.  CERTAINLY THERE
DOES NOT HAVE TO BE EVIDENCE THAT THE COURT THOUGHT THE LOCAL RULES
MADE THE PROMULGATION OF A GENERAL RULE "UNNECESSARY," AS THE COURT
TODAY INTIMATES.  FOR THE LOCAL RULE TO BE VALID, IT IS ENOUGH THAT IT
HAVE BEEN PROMULGATED WITHIN THE SCOPE OF THE DISTRICT COURT'S
AUTHORITY.  IT IS NOT A PREREQUISITE ON THE VALIDITY OF A LOCAL RULE
THAT IT MAKE GENERAL RULES UNNECESSARY.  OBVIOUSLY THIS IS ONE OF THE
INTRINSIC DIFFERENCES BETWEEN A LOCAL RULE AND A GENERAL RULE.  (FN12) 

THE COURT'S HOLDING STOPS UP ONE OF THE MOST PLENTIFUL SOURCES OF
REFORM AND REVISION OF THE GENERAL ADMIRALTY RULES; A SOURCE VERY
RELEVANT TO REVISION OF THE DISCOVERY RULES.  IN DEVELOPING THE CIVIL
DISCOVERY RULES, THERE WAS A GREAT BODY OF STATE COURT EXPERIENCE WITH
DISCOVERY DEPOSITIONS ON WHICH TO DRAW, AND CIVIL RULE 26'S FORMULATORS
DREW UPON IT.  SEE 4 MOORE, FEDERAL PRACTICE (2D ED.), PARA. 26.01.  IF
THERE IS CONSIDERATION WHETHER CIVIL RULE 26, OR A COMPARABLE
PROVISION, SHOULD BE PROMULGATED AS A GENERAL ADMIRALTY RULE, THE
QUESTION WILL OCCUR WHETHER THE DISCOVERY DEPOSITION PROCEDURE IS
SUITABLE TO THE PARTICULAR PROBLEMS OF THE ADMIRALTY COURT.  STATE
COURT AND FEDERAL CIVIL RULES EXPERIENCE MAY ARGUABLY NOT BE OF GREAT
VALUE HERE.  FOR EXAMPLE, THERE HAS BEEN OPPOSITION TO A GENERAL RULE
MAKING THE CIVIL RULES APPLICABLE IN ADMIRALTY TO CASES UNPROVIDED FOR
IN THE OTHER ADMIRALTY RULES BY THOSE WHO ARGUE THAT THE PROBLEMS OF
ADMIRALTY ARE SO UNIQUE THAT THE CIVIL RULES WILL FIT BADLY.  SEE
REPORT OF THE STANDING COMMITTEE ON ADMIRALTY AND MARITIME LAW,
AMERICAN BAR ASSOCIATION, IN 76 ANN. REP. A.B.A. (1951), PP. 182-183. 
IT WOULD APPEAR DIFFICULT EITHER TO EVALUATE THE CORRECTNESS OF THIS
ATTITUDE, OR TO INVESTIGATE WHICH CIVIL RULES WOULD WORK WELL IN
ADMIRALTY, WITHOUT SOME DISTRICT COURT EXPERIENCE IN APPLYING THEM.  IF
IT IS BEING HELD THAT, EVERY TIME THIS COURT'S GENERAL ADMIRALTY RULES
DEAL WITH A GENERAL SUBJECT, ALL PARTS OF THE SUBJECT, THOUGH UNTOUCHED
BY THE GENERAL RULES, BECOME INSULATED FROM FURTHER RULEMAKING BY THE
DISTRICT COURTS, THE MOST FRUITFUL SOURCE, AND PERHAPS THE ONLY VALID
SOURCE, OF EXPERIENCE AS TO FURTHER REVISION OF THE GENERAL ADMIRALTY
RULES WOULD BE CHOKED OFF - THE EXPERIENCE OF THE VARIOUS DISTRICT
COURTS UNDER THEIR LOCAL ADMIRALTY RULES.  WE SHOULD BE LOATH TO DRAW
ANY NEGATIVE INFERENCE FROM OUR RULES THAT WOULD PRODUCE SUCH A
RESULT. 

WE ARE NOT APPRISED HOW BROAD THE PRINCIPLE OF IMPLICIT PRECLUSION
THE COURT TODAY ESTABLISHES MAY BE.  IT WOULD BE PURE SPECULATION TO
ATTEMPT TO ENUMERATE THE LOCAL RULES WHICH MIGHT BE STRUCK DOWN ON THE
BASIS OF IT BECAUSE THEY DEAL WITH AN IMPORTANT SUBJECT MATTER AND
THERE ARE GENERAL RULES WHICH MOVE IN THE SAME AREA AS THEY DO.  THE
RESULT IS A CLOUD OF UNCERTAIN PROPORTIONS ON THE LOCAL RULES. 

OBVIOUSLY THE COURT IS GREATLY INFLUENCED BY THE FACT THAT ANY LOCAL
ADMIRALTY ORAL DEPOSITION RULE MUST TO SOME EXTENT BE A PIECEMEAL
EFFORT, BECAUSE EVEN IF DISCOVERY CAN BE PROVIDED FOR BY LOCAL
DEPOSITION RULE, THE LOCAL RULE CANNOT CHANGE THE PROVISIONS OF THE DE
BENE ESSE ACT REGULATING ADMISSIBILITY INTO EVIDENCE.  SO MERCADO V.
UNITED STATES, 184 F.2D 24, HOLDS, AND THERE IS NO GAINSAYING ITS
CORRECTNESS.  (FN13)  THUS THE DISTRICT COURTS THEMSELVES CANNOT GIVE
THE WHOLE SUBJECT OF DEPOSITIONS THE INTEGRATED TREATMENT THAT THE
CIVIL RULES GIVE IT, OR THAT AN ADMIRALTY DEPOSITION RULE FROM THIS
COURT, WITH ITS POST-1948 POWER TO SUPERSEDE STATUTES, COULD GIVE IT.
THERE IS FORCE TO THIS POINT, BUT ITS FORCE IS NOT AGAINST THE VALIDITY
OF THE LOCAL RULE.  I DO NOT SEE HOW IT AFFECTS THE POWER OF THE
DISTRICT COURTS, UNDER GENERAL ADMIRALTY RULE 44, TO DEAL WITH THE
MATTER AS FAR AS THEY CAN.  IT MAY HAVE CONSIDERABLE FORCE IN
INDICATING THAT THIS COURT, AND THOSE WHO ADVISE IT IN THIS REGARD,
(FN14) SHOULD BE MORE CAREFUL TO EXAMINE WHETHER A GENERAL RULE SHOULD
BE PROMULGATED.  BUT THE QUESTION HERE IS ONE OF THE DISTRICT COURT'S
POWER, AND TO ME THAT SEEMS UNIMPAIRED, SO LONG AS IT IS CONFINED TO
THE USE OF THE DEPOSITION FOR DISCOVERY.  (FN15) 

HOWEVER WELL-MOTIVATED MAY BE THE BASIS ON WHICH THE COURT TODAY
STRIKES DOWN THIS RULE AND THE MANY, MANY LOCAL RULES LIKE IT, I CANNOT
CONCLUDE THAT ITS ACTION HAS ANY BASIS IN LAW.  IT MAY WELL BE
DESIRABLE THAT THIS COURT PROMULGATE A GENERAL RULE IN THE PREMISES,
AND CERTAINLY, INFORMED WITH THIS COURT'S POWER TO SUPERSEDE STATUTES,
SUCH A RULE MIGHT PROVIDE A BETTER APPROACH TO THE PROBLEM THAN THE
LOCAL RULES CAN PROVIDE.  AND THE AREA MAY BE ONE THAT PARTICULARLY
LENDS ITSELF TO UNIFORM REGULATION.  BUT IF THAT IS SO, THE ANSWER IS
FOR THIS COURT TO PROMULGATE SUCH A RULE, NOT TO STRIKE DOWN LOCAL
RULES WHICH, WITHIN THEIR TERRITORIAL AND STATUTORY LIMITATIONS,
PROVIDE SOME SORT OF SOLUTION FOR THE PROBLEM IN THE INTERIM.  THIS
COURT HAS GRANTED LOCAL RULEMAKING POWER TO THE DISTRICT COURTS THROUGH
GENERAL ADMIRALTY RULE 44 AND CIVIL RULE 83; AND I SUBMIT WE SHOULD NOT
SEEK TO ESCAPE THE PLAIN CONSEQUENCES OF SUCH A GRANT OF POWER WHENEVER
WE BELIEVE THAT IT HAS BEEN EXERCISED IN AN AREA WHERE WE THINK WE
COULD DO BETTER.  WHEN WE DO ACT ON ADMIRALTY DISCOVERY DEPOSITIONS
THROUGH A GENERAL RULE, THE LOCAL RULES WILL BE SUPERSEDED; AND THAT
WILL BE TIME ENOUGH. 

THE COURT'S ACTION NULLIFIES THESE MANY LOCAL ADMIRALTY DISCOVERY
DEPOSITION RULES, AND CASTS AN UNCERTAIN CLOUD OVER OTHER LOCAL
ADMIRALTY AND CIVIL RULES.  IT CREATES AN UNFORTUNATE HIATUS IN THE
DEVELOPMENT OF DISCOVERY IN ADMIRALTY BY POSTPONING THE FURTHER
COLLECTION OF PRACTICAL EXPERIENCE ON THE MATTER UNTIL A GENERAL RULE
CAN BE PRODUCED.  I CAN SEE NO LEGAL REASON WHY THE EXERCISE OF THE
DISTRICT COURT'S RULEMAKING POWERS SHOULD NOT BE PERMITTED TO GO
FORWARD, AND ACCORDINGLY I DISSENT FROM THE JUDGMENT AFFIRMING THE
COURT OF APPEALS' ISSUANCE OF THE EXTRAORDINARY WRITS. 

FN1  IN THE FISCAL YEAR ENDING JUNE 30, 1959, OVER HALF THE PRIVATE
ADMIRALTY ACTIONS FILED IN THE DISTRICT COURTS WERE BROUGHT IN
DISTRICTS HAVING RULES SIMILAR TO THE ONE IN QUESTION HERE.  LOCAL
ADMIRALTY RULES EXPRESSLY PROVIDING FOR THE TAKING OF DEPOSITIONS OF
WITNESSES (INCLUDING NONPARTY WITNESSES) IN ACCORD WITH THE CIVIL RULES
HAVE BEEN ADOPTED IN THE SOUTHERN DISTRICT OF NEW YORK (ADMIRALTY RULE
32); THE NORTHERN DISTRICT OF NEW YORK (ADMIRALTY RULE 32); THE
SOUTHERN AND NORTHERN DISTRICTS OF FLORIDA (JOINT ADMIRALTY RULE 24);
THE NORTHERN DISTRICT OF CALIFORNIA (ADMIRALTY RULE 13); AND THE
WESTERN DISTRICT OF WASHINGTON (ADMIRALTY RULES 25 AND 25A), BESIDES
THE NORTHERN DISTRICT OF ILLINOIS.  IN THE FISCAL YEAR REFERRED TO,
THESE DISTRICTS WERE RESPONSIBLE FOR 1,743 OF THE 3,424 PRIVATE
ADMIRALTY ACTIONS FILED IN THE DISTRICT COURTS, OR 50.9%. 

IN ADDITION, THERE ARE TWO DISTRICTS WHERE THERE IS A CATCHALL LOCAL
ADMIRALTY RULE MAKING THE FEDERAL RULES OF CIVIL PROCEDURE APPLICABLE
TO SITUATIONS NOT OTHERWISE PROVIDED FOR.  IN ONE OF THESE DISTRICTS,
THE LOCAL RULE IS INTERPRETED AS ALLOWING DISCOVERY DEPOSITIONS. 
EASTERN DISTRICT OF VIRGINIA, ADMIRALTY RULE 24; DARLING'S ESTATE V.
ATLANTIC CONTRACTING CORP., 150 F. SUPP. 578, 580.  IN THE OTHER, THE
RULE WAS APPARENTLY PROMULGATED IN RESPONSE TO A SUGGESTION BY THE
CHIEF DISTRICT JUDGE THAT A LOCAL RULE ON DEPOSITIONS BE PROPOSED BY A
COMMITTEE FOR PROMULGATION BY THE COURT.  PRUDENTIAL S.S. CORP. V.
CURTIS BAY TOWING CO., 20 F.R.D. 356, 357 (DECIDED MAY 9, 1957);
DISTRICT OF MARYLAND, ADMIRALTY RULE 46, PROMULGATED MAY 9, 1958. 
THESE TWO DISTRICTS ACCOUNTED FOR 170 OR 5% OF THE PRIVATE ADMIRALTY
CASES FILED DURING THE YEAR IN QUESTION.  THIS WITH THE CATEGORY OF
DISTRICTS JUST DISCUSSED INDICATES THAT 55.9% OF THE PRIVATE ADMIRALTY
CASES WERE PROSECUTED IN DISTRICTS WHERE THERE EXISTED A LOCAL RULE
MAKING THE CIVIL RULES PROCEDURE FOR DISCOVERY DEPOSITION AVAILABLE. 

IN ADDITION, SEVERAL DISTRICTS HAVE ADMIRALTY RULES PROVIDING FOR
BROADENED DEPOSITION PRACTICE IN REGARD TO ADVERSE PARTIES.  EASTERN
DISTRICT OF NEW YORK, ADMIRALTY RULE 32; EASTERN DISTRICT OF NORTH
CAROLINA, ADMIRALTY RULE 30; WESTERN DISTRICT OF LOUISIANA, ADMIRALTY
RULE 30; NORTHERN DISTRICT OF OHIO, ADMIRALTY RULE 38.  IN THE YEAR IN
QUESTION, THESE DISTRICTS ACCOUNTED FOR 116 CASES FILED, OR 3.4%. 

IN OTHER DISTRICTS, THE NEED FOR A LOCAL RULE MAY HAVE BEEN THOUGHT TO
BE OBVIATED BY A RULING THAT GENERAL ADMIRALTY RULE 32C IMPLICITLY MADE
BROADENED DISCOVERY AVAILABLE, SEE THE BALLANTRAE, 1949 A.M.C. 1999
(D.C.N.J.); BROWN V. ISTHMIAN S.S. CORP., 79 F. SUPP. 701 (D.C.E.D.
PA.), OR BY A DECISION INDICATING THAT THE PRACTICE WAS AVAILABLE
WITHOUT RULE OF COURT, SEE DOWLING V. ISTHMIAN S.S. CORP., 184 F.2D 758
(C.A. 3D CIR.). 

FOR THE STATISTICS AS TO PRIVATE ADMIRALTY CASES FILED, SEE ANNUAL
REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED
STATES COURTS FOR THE FISCAL YEAR ENDING JUNE 30, 1959, TABLE C3. 
GOVERNMENT ADMIRALTY CASES ARE NOT SEPARATELY LISTED AS SUCH. 

FN2  THESE CONTENTIONS ARE FIRST, THAT ADMIRALTY COURTS HAVE INHERENT
POWER TO ORDER SUCH DEPOSITIONS, AND SECOND, THAT THIS POWER IS
CONFERRED BY GENERAL ADMIRALTY RULE 32C. 

FN3  BEFORE THE CODIFICATION OF 1948, THE STATUTORY PREDECESSORS OF
28 U.S.C. SEC. 2071 THEMSELVES WERE MORE CLEAR IN PROVIDING FOR SOME
PRACTICE RULEMAKING POWER IN THE TRIAL COURTS.  SEE R.S. SEC. 918, AND
ITS SOMEWHAT DIFFERENTLY WORDED PREDECESSOR, SEC. 7 OF THE ACT OF MARCH
2, 1793, 1 STAT. 335.  SEE ALSO R.S. SEC. 913, DERIVED FROM THE EARLY
PROCESS ACTS.  BUT AS EARLY AS THE FIRST GENERAL ADMIRALTY RULES OF
1844, THIS COURT HAD PROVIDED FOR SUBSIDIARY RULEMAKING POWER BY THE
DISTRICT COURTS, IN TERMS FAIRLY SIMILAR TO THOSE OF THE PRESENT
GENERAL ADMIRALTY RULE 44.  SEE GENERAL ADMIRALTY RULE 46 OF 1844, 3
HOW.  XIII. 

FN4  IN THE LAST-CITED CASE, JUDGE LEARNED HAND WENT SO FAR AS TO SAY
OF A DISTRICT COURT RULE PROMULGATED UNDER THE AUTHORITY OF R.S. SEC.
918 AND GENERAL ADMIRALTY RULE 44, THAT IT WAS "THE RESULT OF THE
EXERCISE OF A POWER TO LEGISLATE, DELEGATED BY CONGRESS, THOUGH
CIRCUMSCRIBED BY THE STATUTE WHICH GIVES IT, AND BY ANYTHING CONTAINED
IN THE GENERAL LAWS, OR THE SUPREME COURT RULES, AS THE STATUTE ITSELF
DECLARES.  WITHIN THESE LIMITS THE DISTRICT COURT MAY DISREGARD
EXISTING PRACTICE AS FREELY AS CONGRESS ITSELF; ITS ACTION HAS THE
FORCE OF LAW  ...  AND WE ARE AS MUCH BOUND TO OBSERVE IT AS A
STATUTE."  40 F.2D, AT 444. 

FN5  THE COURT RIGHTLY REJECTS THE CONTENTION THAT THE DE BENE ESSE
ACT ITSELF, R.S. SECS. 863-865, OPERATES THROUGH NEGATIVE IMPLICATION
TO PREVENT THE PROMULGATION BY A DISTRICT COURT OF ANY OTHER DEPOSITION
RULE, AND HENCE MAKES THIS LOCAL RULE FALL AS VIOLATIVE OF A STATUTE. 
GENERAL ADMIRALTY RULE 44 DOES NOT PURPORT TO INVEST DISTRICT COURTS
WITH THIS COURT'S CURRENT POWER TO SUPERSEDE STATUTES UNDER THE
ADMIRALTY RULES ENABLING ACT, 28 U.S.C. SEC. 2073.  BUT THERE IS NO
INCONSISTENCY BETWEEN THE DE BENE ESSE ACT AND THE LOCAL RULE.  THE ACT
PROVIDES A METHOD FOR THE INTRODUCTION OF DEPOSITIONS INTO EVIDENCE;
THE LOCAL RULE REGULATES THEIR TAKING FOR DISCOVERY.  THE LOCAL RULE
CONTAINS A PROVISION DESIGNED TO SUBJECT THE ADMISSIBILITY INTO
EVIDENCE OF DEPOSITIONS TAKEN UNDER IT TO THE PROVISIONS OF THE ACT. 
IT IS SAID THAT THE FISK AND TOOTH CROWN CASES, EX PARTE FISK, 113 U.S.
713; HANKS DENTAL ASSN. V. INTERNATIONAL TOOTH CROWN CO., 194 U.S. 303,
IMPLIED THAT THE DE BENE ESSE ACT, AND THE OTHER STATUTES REGULATING
THE TAKING OF DEPOSITIONS FOR USE AS TESTIMONY, THEN ON THE BOOKS (SEE
NOTE 6, INFRA), AMOUNTED TO AN IMPLICIT EXCLUSION OF ALL OTHER MEANS OF
EXAMINATION, FOR DISCOVERY PURPOSES, OR OTHERWISE.  THESE CASES WERE
BASED PRIMARILY ON THE PROVISIONS OF R.S. SEC. 861 FOR THE TAKING OF
TESTIMONY IN OPEN COURT (SEE NOTE 12, INFRA); BUT EVEN IF THEY WERE
BASED IN PART ON NEGATIVE INFERENCES FROM THE DEPOSITION ACTS, THEY
HAVE NOT BEEN HONORED AS AUTHORITIES IN ADMIRALTY.  FOR THIS COURT'S
1939 AMENDATORY GENERAL ADMIRALTY RULES, DEALING EXTENSIVELY WITH
DISCOVERY, WERE PROMULGATED AT A TIME WHEN ALL THESE STATUTES WERE ON
THE BOOKS, AND WHEN THIS COURT'S RULEMAKING POWERS IN ADMIRALTY DID NOT
EXTEND TO THE POWER TO SUPERSEDE STATUTES.  IT HAS BEEN RECOGNIZED IN
THE ADMIRALTY JURISPRUDENCE HERE, ACCORDINGLY, THAT THE VARIOUS
STATUTORY PROVISIONS REFERRED TO IN FISK AND TOOTH CROWN ARE TO BE
TAKEN AS RELATING ONLY TO THE INTRODUCTION OF PROOF AT TRIAL, AND NOT
TO DISCOVERY PRACTICE.  ACCORDINGLY THERE IS NO BARRIER IN THOSE CASES,
OR IN THE DE BENE ESSE ACT, TO THE LOCAL RULE HERE INVOLVED. 

FN6  OF COURSE, IN 1939 THIS COURT HAD NO AUTHORITY TO PROMULGATE IN
ADMIRALTY THAT PART OF CIVIL RULE 26 WHICH PROVIDES FOR THE RECEPTION
OF DEPOSITIONS IN EVIDENCE, TO THE EXTENT THAT IT WAS INCONSISTENT WITH
THE DE BENE ESSE ACT AND SUCH OTHER STATUTES AS R.S. SECS. 866-870,
875, PROVIDING FOR VARIOUS MEANS OF TAKING EVIDENCE OTHER THAN IN OPEN
COURT.  SEE 3 BENEDICT, ADMIRALTY (6TH ED. 1940), SECS. 397-401.  ALL
THESE STATUTES EXCEPT THE DE BENE ESSE ACT WERE REPEALED IN THE 1948
CODIFICATION OF THE JUDICIAL CODE.  62 STAT. 993.  THIS INABILITY WAS
DUE TO THE FACT THAT UNTIL THE 1948 REVISION OF THE JUDICIAL CODE, 28
U.S.C. SEC. 2073, THIS COURT'S ADMIRALTY RULES ENABLING ACT DID NOT
CONTAIN A POWER TO SUPERSEDE STATUTES.  R.S.  SEC. 917.  SEE ALSO R.S.
SECS. 862 AND 913.  CIVIL RULE 26 CONTAINS PROVISIONS FOR THE RECEPTION
OF DEPOSITIONS AS EVIDENCE DIFFERENT FROM THOSE OF THE DE BENE ESSE
ACT.  HENCE IT COULD NOT HAVE BEEN PROMULGATED IN TERMS IN ADMIRALTY
THEN, ONLY IN A FORM LIKE THE LOCAL RULE HERE WHICH AVOIDS CONFLICT
WITH THE STATUTE.  SEE NOTE 5, SUPRA; CF. MERCADO V. UNITED STATES, 184
F.2D 24. 

THERE IS SOME EVIDENCE THAT IT WAS THE INABILITY OF THIS COURT UNDER
THE THEN-EXISTING ADMIRALTY RULES ENABLING ACT TO PROMULGATE CIVIL RULE
26 IN TOTO IN ADMIRALTY WHICH RESULTED IN NO ACTION AT ALL BEING TAKEN
ON THE SUBJECT.  SEE REPORT OF THE STANDING COMMITTEE ON ADMIRALTY AND
MARITIME LAW, AMERICAN BAR ASSOCIATION, IN 76 ANN. REP. A.B.A. (1951),
PP. 565-566.  THE 1939 GENERAL ADMIRALTY RULES AMENDMENTS WERE MADE
WITHOUT REPORT FROM AN ADVISORY COMMITTEE, AND NO RULE WAS PROMULGATED
WHICH WAS NOT A COPY OF ONE OF THE NEW CIVIL RULES. 

FN7  NOT ONLY MIGHT A LOCAL RULE ON DISCOVERY DEPOSITIONS SERVE AS A
SUPPLEMENT TO THE GENERAL RULES ON DISCOVERY, BUT TO THE PRETRIAL
CONFERENCE PRACTICE.  SEE GENERAL ADMIRALTY RULE 44 1/2, ADDED 316 U.S.
716.  CF. DOWLING V. ISTHMIAN S.S. CORP., 184 F.2D 758, 773. 

FN8  IT SHOULD BE NOTED THAT A SIMILAR AUTHORITY TO THAT OF GENERAL
ADMIRALTY RULE 44 IS VESTED IN THE DISTRICT COURTS BY CIVIL RULE 83,
EMPOWERING THE DISTRICT COURTS TO MAKE LOCAL RULES OF CIVIL PROCEDURE. 
NO SUBMISSION OF THESE LOCAL RULES TO CONGRESS IS CONTEMPLATED BY THIS
COURT'S RULES.  NO POWER TO SUPERSEDE STATUTES IS DELEGATED BY EITHER
THE GENERAL ADMIRALTY RULE OR THE CIVIL RULE.  IT MIGHT BE NOTED THAT
GENERALLY (BUT CF. 28 U.S.C. SEC.  2074) ONLY WHERE THIS POWER IS
GIVEN, HAS CONGRESS PROVIDED FOR A PROCEDURE WHEREBY NEW RULES ARE
REPORTED TO IT AND LAID ON THE TABLE BEFORE IT.  SEE THE ORIGINAL CIVIL
RULES ENABLING ACT, THE ACT OF JUNE 19, 1934, C. 651, 48 STAT. 1064,
AND ITS PRESENT FORM, 28 U.S.C. SEC. 2072, AND THE CURRENT ADMIRALTY
RULES ENABLING ACT, 28 U.S.C. SEC. 2073.  CONTRAST THE OLD CIVIL
RULEMAKING AUTHORITY IN THE LOWER COURTS, R.S. SEC. 918, AND THE OLD
ADMIRALTY RULES ENABLING ACT, R.S. SEC. 917, TOGETHER WITH R.S. SECS.
862 AND 913.  THESE PROVISIONS DID NOT EMPOWER THE COURTS TO SUPERSEDE
PRE-EXISTING STATUTES (ALTHOUGH SEC. 917'S PREDECESSOR MAY HAVE BEEN
ITSELF AN IMPLICIT REPEALER OF CERTAIN STATUTES, SEE NOTE 12, INFRA);
AND THEY PROVIDED FOR NO PROCEDURE WHEREBY THE RULES WOULD BE LAID
BEFORE CONGRESS. 

OF COURSE, UNDER THE MODERN ACTS, ALL NEW GENERAL ADMIRALTY AND CIVIL
RULES PROMULGATED HERE MUST BE LAID BEFORE CONGRESS, NOT SIMPLY THOSE
WHICH SUPERSEDE STATUTES; BUT THE POINT IS THAT THE LIMITED RULEMAKING
POWER DELEGATED HERE TO THE DISTRICT COURT, SINCE IT DOES NOT
CONTEMPLATE THE SUPERCESSION OF STATUTES, IS FOREIGN TO THE PROCEDURAL
SAFEGUARDS WHICH THE COURT TODAY FINDS INDISPENSABLE TO ITS EXERCISE. 
THE POINT IS THAT A NARROW POWER, PARTICULARLY IN LOWER COURTS, TO MAKE
PROCEDURAL RULES OF A NATURE (LIKE THIS ONE) NOT INCONSISTENT WITH
STATUTORY LAW, HAS NOT GENERALLY BEEN DEEMED BY CONGRESS TO REQUIRE THE
SAFEGUARDS THE COURT TODAY REQUIRES, AND WHICH THE LOCAL RULEMAKING
POWER CANNOT PROVIDE. 

FN9  THIS PROVISION WAS ADDED TO SEC. 331 OF THE JUDICIAL CODE BY THE
ACT OF JULY 11, 1958, 72 STAT. 356.  THE LOCAL RULE IN QUESTION WAS IN
EFFECT IN 1955.  SEE 5A BENEDICT, ADMIRALTY (7TH ED. 1959), P. 833.  OF
COURSE THIS IS NOT RELEVANT TO THE EFFICACY OF A LOCAL ADMIRALTY RULE,
SINCE EVEN TODAY LOCAL RULES ARE NOT COVERED BY SEC. 331; BUT IT IS
INTERESTING TO NOTE THAT THE PROVISIONS OF SEC. 331 THAT THE COURT
TREATS AS RELEVANT HERE WOULD NOT EVEN HAVE BEEN APPLICABLE TO A
GENERAL RULE PROMULGATED AT THE TIME THIS LOCAL RULE WAS. 

FN10  THERE IS SOME SUGGESTION IN THE COURT'S OPINION THAT GENERAL
ADMIRALTY RULE 44 ITSELF SHOULD BE NARROWLY CONSTRUED BECAUSE IT WAS
NOT REPORTED TO CONGRESS.  BUT THAT PROCEDURE WAS NOT REQUIRED AT THE
TIME IT WAS PROMULGATED; AND IN PROMULGATING IT, THERE IS NO EVIDENCE
TO SHOW THAT THIS COURT DID NOT EXERCISE THE PLENITUDE OF ITS
RULEMAKING POWERS UNDER THE THEN-EXISTING STATUTES.  SEE NOTE 6,
SUPRA. 

FN11  SEE NOTE 5, SUPRA. 

FN12  THE COURT RIGHTLY REJECTS THE ARGUMENT THAT THE LOCAL RULE IS
IN CONFLICT WITH GENERAL ADMIRALTY RULE 46, WHICH REQUIRES THAT "THE
TESTIMONY OF WITNESSES SHALL BE TAKEN ORALLY IN OPEN COURT, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE, OR AGREEMENT OF PARTIES."  OLD CASES
HERE HAVE HELD DISCOVERY-DEPOSITION PRACTICE AT LAW INCONSISTENT WITH
COMPARABLE PROVISIONS, EX PARTE FISK, 113 U.S. 713; HANKS DENTAL ASSN.
V. INTERNATIONAL TOOTH CROWN CO., 194 U.S. 303; BUT THESE CASES HARDLY
OFFER GUIDES TO OUR DECISION UNDER THE PRESENT GENERAL ADMIRALTY
RULES.  THE PRIMARY BASIS OF THESE DECISIONS, RENDERED IN 1885 AND
1904, WAS THAT DISCOVERY DEPOSITIONS WERE THOUGHT TO BE INCONSISTENT
WITH THE THEN-EXISTING STATUTE, APPLICABLE AT LAW, PROVIDING THAT ALL
TESTIMONY BE GIVEN ORALLY IN OPEN COURT EXCEPT AS OTHERWISE STATUTORILY
PROVIDED.  R.S. SEC. 861.  SEE HANKS DENTAL ASSN. V. INTERNATIONAL
TOOTH CROWN CO., SUPRA, AT 308.  MODERN PRACTICE HAS COME TO SEE THE
MAKING OF TESTIMONIAL PROOF AND THE TAKING OF DISCOVERY DEPOSITIONS AS
QUITE SEPARATE MATTERS.  THERE WOULD SEEM NO REASON WHY A LIMITATION ON
THE FORMER SHOULD AFFECT THE LATTER.  SEE REPUBLIC OF FRANCE V.
BELSHIPS CO., 91 F. SUPP.  912, 913.  AND THE PROVISIONS FOR THE TAKING
OF TESTIMONY IN OPEN COURT FOUND IN GENERAL ADMIRALTY RULE 46 COMES
WITH AN ENTIRELY DIFFERENT HISTORY FROM THAT OF THE STATUTORY PROVISION
APPLICABLE AT LAW.  THE FIRST STATUTORY PROVISION ON THE SUBJECT, SEC.
30 OF THE FIRST JUDICIARY ACT OF 1789, C. 20, 1 STAT. 88, APPLIED TO
ALL ACTIONS, ADMIRALTY, LAW AND EQUITY ALIKE; BUT IN THE REVISION OF
1874, THE PROVISION WAS RESTRICTED TO ACTIONS AT LAW, R.S. SEC. 861,
AND ADMIRALTY AND EQUITY PROOFS WERE LEFT TO THIS COURT'S RULES.  R.S.
SEC. 862.  THIS MAY, IN FACT, HAVE BEEN THE STATE OF THE LAW EVEN
BEFORE THE 1874 REVISION.  THE NOTE TO R.S. SEC. 862 DERIVES THE
PROVISION ENTIRELY FROM SEC. 6 OF THE ACT OF AUGUST 23, 1842, C. 188, 5
STAT. 518, WHICH WAS THE FIRST ADMIRALTY RULES ENABLING ACT.  THE 1842
ACT CONTAINED NO EXPLICIT REPEALER OF THE APPLICATION IN ADMIRALTY OF
SEC. 30 OF THE FIRST JUDICIARY ACT, BUT EVIDENTLY AT THE TIME OF THE
REVISION THE VIEW WAS TAKEN THAT THE RULEMAKING AUTHORITY (WHICH IN ITS
1842 FORM, AS OPPOSED TO ITS FORM IN THE REVISION, R.S. SECS. 862, 917,
WAS NOT MADE EXPRESSLY SUBJECT TO PRE-EXISTING STATUTES) HAD SUPERSEDED
IN ADMIRALTY THE REQUIREMENT OF SEC. 30 OF THE FIRST JUDICIARY ACT. 

THIS COURT'S GENERAL ADMIRALTY RULES OF 1844, WHICH SUBJECT TO
INDIVIDUAL AMENDMENTS REMAINED IN EFFECT TILL THE REVISION OF 1921,
NEVER CONTAINED ANY PROVISION COMPARABLE TO R.S. SEC. 861, OR TO THE
PRESENT GENERAL ADMIRALTY RULE 46.  (SEE HUGHES, ADMIRALTY (2D ED.
1920), P. 511 ET SEQ., FOR THE FORM OF THE 1844 RULES AS THEY STOOD
IMMEDIATELY BEFORE THE 1921 REVISION.)  GENERAL RULE 46 WAS INTRODUCED
IN THE 1921 GENERAL ADMIRALTY RULES REVISION; BUT SIDE-BY-SIDE WITH IT
WERE PROMULGATED TWO RULES, GENERAL ADMIRALTY RULES 31 AND 32, 254
U.S., AT 692-693, WHICH TOUCHED ON THE SUBJECT OF DISCOVERY; AND WHEN
THE EXTENSIVE 1939 DISCOVERY SUPPLEMENTS TO THE RULES WERE PROMULGATED,
IT WAS NOT THOUGHT NECESSARY TO MAKE ANY ALTERATION IN GENERAL
ADMIRALTY RULE 46.  ACCORDINGLY, SINCE DISCOVERY RULES HAVE STOOD SIDE
BY-SIDE WITH RULE 46, WITHOUT EXPLICIT EXCEPTION OR CROSS-REFERENCE IN
IT, IT SHOULD NOT BE TREATED AS CARRYING THE SAME GLOSS AS R.S. SEC.
861 WAS HELD TO HAVE, PARTICULARLY SINCE THE INTERPRETATION OF SUCH A
PROVISION AS INHIBITING DISCOVERY RATHER THAN SIMPLY REGULATING THE
INTRODUCTION OF PROOF AT TRIAL IS A VERY STRAINED ONE. 

FN13  CF. NOTES 5 AND 6, SUPRA. 

FN14  THE JUDICIAL CONFERENCE HAS RESPONSIBILITIES IN THIS AREA, AS
HAS BEEN DEVELOPED, SEE 28 U.S.C. SEC. 331; UNITED STATES V. ISTHMIAN
S.S. CO., 359 U.S. 314, 323-324; AND AN ADVISORY COMMITTEE TO THIS
COURT ON THE GENERAL ADMIRALTY RULES HAS RECENTLY BEEN FORMED. 

FN15  THE LOCAL RULE IN QUESTION HERE, WITH AN EXCEPTION FOR USE AS
IMPEACHMENT OR CONTRADICTION OF THE DEPONENT WHEN HE HAS TESTIFIED,
MAKES ADMISSIBILITY IN EVIDENCE DEPEND GENERALLY UPON THE FULFILLMENT
OF THE CONDITIONS SPECIFIED IN R.S. SEC. 865.  IT DOES NOT PROVIDE FOR
ADMISSIBILITY IN THE CIRCUMSTANCES SET FORTH IN CIVIL RULE 26(D)(3),
ITEMS 4 AND 5, WHICH PRESENT OCCASIONS FOR ADMISSION NOT HAVING
COUNTERPARTS IN THE DE BENE ESSE ACT. 
..END :












SCHILLING V. ROGERS 363 U.S. 666 


NO. 319.  ARGUED FEBRUARY 29-MARCH 1, 1960.  - DECIDED JUNE 20, 1960.  -
106 U.S. APP. D.C. 8, 268 F.2D 584, AFFIRMED. 


PETITIONER, AN ALIEN, BROUGHT THIS ACTION IN A FEDERAL DISTRICT COURT
TO OBTAIN JUDICIAL REVIEW OF AN ADMINISTRATIVE DETERMINATION BY THE
DIRECTOR, OFFICE OF ALIEN PROPERTY, SANCTIONED BY THE ATTORNEY GENERAL,
THAT PETITIONER WAS NOT ELIGIBLE UNDER SEC. 32(A)(2)(D) OF THE TRADING
WITH THE ENEMY ACT, AS AMENDED, FOR THE RETURN OF PROPERTY VESTED BY
THE ALIEN PROPERTY CUSTODIAN IN WHICH PETITIONER CLAIMED TO HAVE AN
INTEREST.  HELD:  JUDICIAL REVIEW OF THAT ADMINISTRATIVE DETERMINATION
WAS PRECLUDED BY SEC. 7(C) OF THE TRADING WITH THE ENEMY ACT, WHICH
PROVIDES THAT, "THE SOLE RELIEF AND REMEDY OF ANY PERSON HAVING ANY
CLAIM TO ANY MONEY OR OTHER PROPERTY HERETOFORE OR HEREAFTER ...
TRANSFERRED  ...  TO THE ALIEN PROPERTY CUSTODIAN  ...  SHALL BE THAT
PROVIDED BY THE TERMS OF THIS ACT," SINCE THAT ACT CANNOT BE CONSTRUED
TO PROVIDE A JUDICIAL REMEDY FOR A PERSON SUCH AS PETITIONER.  PP. 667
677. 

(A)  SECTION 10 OF THE ADMINISTRATIVE PROCEDURE ACT DOES NOT ENTITLE
PETITIONER TO JUDICIAL REVIEW OF THIS ADMINISTRATIVE DETERMINATION,
BOTH BECAUSE THE MATTER INVOLVED IS "COMMITTED TO AGENCY DISCRETION" BY
SEC. 32(A) OF THE TRADING WITH THE ENEMY ACT AND BECAUSE JUDICIAL
REVIEW IS PRECLUDED BY SEC. 7(C) OF THAT ACT.  PP. 670-676. 

(B)  A DIFFERENT CONCLUSION IS NOT REQUIRED ON THE THEORY THAT, BY
MOVING TO DISMISS PETITIONER'S ACTION, RESPONDENT ADMITTED PETITIONER'S
ALLEGATION THAT THE ADMINISTRATIVE ACTION WAS ARBITRARY AND
CAPRICIOUS.  PP. 676-677. 

(C)  THE DECLARATORY JUDGMENT ACT DOES NOT ENTITLE PETITIONER TO
JUDICIAL REVIEW, BECAUSE RELIEF THEREUNDER IS PRECLUDED BY SEC. 7(C) OF
THE TRADING WITH THE ENEMY ACT.  P. 677. 

SCHILLING V. ROGERS, ATTORNEY GENERAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

50, AS AMENDED, 50 U.S.C. APP. SEC. 32(A)) AUTHORIZES THE RETURN IN
CERTAIN CIRCUMSTANCES OF PROPERTY VESTED BY THE UNITED STATES DURING
WORLD WAR II.  UNDER THAT PROVISION: 

"THE PRESIDENT, OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, MAY
RETURN ANY PROPERTY OR INTEREST VESTED IN OR TRANSFERRED TO THE ALIEN
PROPERTY CUSTODIAN (OTHER THAN ANY PROPERTY OR INTEREST ACQUIRED BY THE
UNITED STATES PRIOR TO DECEMBER 18, 1941), OR THE NET PROCEEDS THEREOF,
WHENEVER THE PRESIDENT OR SUCH OFFICER OR AGENCY SHALL DETERMINE  ...
." 

THAT THE FOLLOWING CONDITIONS ARE MET:  (1) THE CLAIMANT WAS THE
OWNER OF THE PROPERTY IN QUESTION PRIOR TO ITS VESTING, OR IS THE LEGAL
REPRESENTATIVE OR SUCCESSOR IN INTEREST OF THE OWNER, (FN1) (2) HE WAS
NOT A MEMBER OF ANY OF SEVERAL EXCLUDED CLASSES, SUMMARIZED IN THE
MARGIN; (FN2) (3) THE PROPERTY WAS NOT USED PURSUANT TO A "CLOAKING"
ARRANGEMENT, WHEREBY THE INTEREST OF AN INELIGIBLE PERSON IN THE
PROPERTY WAS CONCEALED; (FN3) (4) THERE IS NO DANGER OF LIABILITY IN
RESPECT OF THE PROPERTY ATTACHING TO THE CUSTODIAN UNDER THE
RENEGOTIATION STATUTES; (FN4) AND (5) "SUCH RETURN IS IN THE INTEREST
OF THE UNITED STATES."  (FN5) 

THE PARTICULAR PROVISION INVOLVED IN THIS CASE IS PARAGRAPH 2(D) OF
SEC. 32(A), WHICH MAKES INELIGIBLE CITIZENS OF CERTAIN ENEMY COUNTRIES
WHO WERE PRESENT IN THOSE COUNTRIES AFTER THE ONSET OF HOSTILITIES, AND
ITS FIRST PROVISO (ADDED BY 60 STAT. 930), WHICH EXEMPTS FROM THAT
INELIGIBILITY CERTAIN PERSONS WHO WERE THE VICTIMS OF PERSECUTION. 
(FN6)  THE QUESTION FOR DECISION IS WHETHER THE DISTRICT COURT HAD
JURISDICTION TO REVIEW A DETERMINATION OF THE DIRECTOR, OFFICE OF ALIEN
PROPERTY, SANCTIONED BY THE RESPONDENT ATTORNEY GENERAL, HOLDING THIS
PROVISO INAPPLICABLE TO THE FACTS PRESENTED BY THE PETITIONER'S CLAIM. 
(FN7) 

PETITIONER, A NATIONAL AND RESIDENT OF GERMANY AT ALL MATERIAL TIMES,
DULY FILED WITH THE ATTORNEY GENERAL A CLAIM UNDER THE SEC. 32(A)(2)(D)
PROVISO FOR THE RETURN OF THE PROCEEDS OF CERTAIN PROPERTY VESTED BY
THE RESPONDENT'S PREDECESSORS IN 1942, 1947, AND 1948, ASSERTING AN
INTEREST THEREIN OF SOME $68,500.  HE ALLEGED THAT THROUGHOUT THE
RELEVANT PERIOD HE, AS AN "ANTI-NAZI," CLAIMED TO HAVE BEEN A
DISCRIMINATED-AGAINST POLITICAL GROUP, HAD BEEN DEPRIVED OF FULL RIGHTS
OF GERMAN CITIZENSHIP, IN THAT HE HAD BEEN DENIED ADMISSION TO THE
PRACTICE OF LAW.  A HEARING EXAMINER RECOMMENDED ALLOWANCE OF THE
CLAIM, BUT HIS RECOMMENDATION WAS REJECTED BY THE DIRECTOR ON THE
GROUND THAT PETITIONER WAS INELIGIBLE FOR RELIEF UNDER THE SEC.
32(A)(2)(D) PROVISO.  (FN8)  THE ATTORNEY GENERAL REFUSED REVIEW. 
PETITIONER THEN SUED IN THE DISTRICT COURT TO REVIEW THE ADMINISTRATIVE
DETERMINATION, CLAIMING IT TO HAVE BEEN ARBITRARY AND ILLEGAL.  THE
COURT DENIED THE GOVERNMENT'S MOTION TO DISMISS THE COMPLAINT FOR WANT
OF JURISDICTION.  THE COURT OF APPEALS REVERSED, HOLDING, IN LINE WITH
ITS OWN PRIOR COURSE OF DECISIONS, THAT JUDICIAL REVIEW OF THE
ADMINISTRATIVE DISPOSITION WAS PRECLUDED BY SEC. 7(C) OF THE TRADING
WITH THE ENEMY ACT.  106 U.S. APP. D.C. 8, 268 F.2D 584.  BECAUSE OF
THE IMPORTANCE OF THE QUESTION IN THE PROPER ADMINISTRATION OF THE
TRADING WITH THE ENEMY ACT WE BROUGHT THE CASE HERE.  361 U.S. 874. 
FOR REASONS GIVEN HEREAFTER WE AFFIRM THE JUDGMENT BELOW. 

PETITIONER'S PRINCIPAL RELIANCE IS UPON SEC. 10 OF THE ADMINISTRATIVE
PROCEDURE ACT WHICH PROVIDES FOR JUDICIAL REVIEW OF AGENCY ACTION
"EXCEPT SO FAR AS (1) STATUTES PRECLUDE JUDICIAL REVIEW OR (2) AGENCY
ACTION IS BY LAW COMMITTED TO AGENCY DISCRETION."  60 STAT. 243, 5
U.S.C. SEC. 1009.  WE FIND THAT BOTH SUCH LIMITATIONS ARE APPLICABLE
HERE. 


"THE SOLE RELIEF AND REMEDY OF ANY PERSON HAVING ANY CLAIM TO ANY
MONEY OR OTHER PROPERTY HERETOFORE OR HEREAFTER  ...  TRANSFERRED  ...
TO THE ALIEN PROPERTY CUSTODIAN  ...  SHALL BE THAT PROVIDED BY THE
TERMS OF THIS ACT  ...  ."  40 STAT. 1021. 

WE PERCEIVE NO BASIS FOR PETITIONER'S CONTENTION THAT SEC. 7(C)
LIMITS ONLY THE REMEDIES AVAILABLE TO NONENEMIES UNDER SEC. 9(A), OR
FOR CONSTRUING SEC. 7(C), PASSED IN 1918, AS NOT BEING APPLICABLE TO
SEC. 32, PASSED IN 1946.  THE LANGUAGE OF THE SECTION IS "ALL
INCLUSIVE," BECKER STEEL CO. V. CUMMINGS, 296 U.S. 74, 79, AND IT
SPEAKS TO THE FUTURE AS WELL AS THE PAST.  SEE ALSO CENTRAL UNION TRUST
CO. V. GARVAN, 254 U.S. 554, 568. 

THE ONLY EXPRESS PROVISION IN THE TRADING WITH THE ENEMY ACT FOR
RECOURSE TO THE COURTS BY THOSE CLAIMING THE RETURN OF PROPERTY VESTED
DURING WORLD WAR II IS THAT CONTAINED IN SEC. 9(A).  THAT SECTION,
HOWEVER, IS APPLICABLE ONLY TO PERSONS NOT ENEMIES OR ALLIES OF ENEMIES
AS DEFINED IN THE RELEVANT STATUTES, AND HENCE IS NOT AVAILABLE TO THIS
PETITIONER, AN ENEMY NATIONAL.  (FN9)  WHILE SEC. 9(C) ALSO ENTITLES
CERTAIN CLASSES OF "ENEMIES" ENUMERATED IN SEC. 9(B) SIMILARLY TO SUE
IN THE COURTS TO RECOVER VESTED PROPERTY WHOSE RETURN IS AUTHORIZED
UNDER SEC. 9(B), THOSE SECTIONS APPLY ONLY TO WORLD WAR I VESTINGS. 
SEE FEYERABEND V. MCGRATH, 89 U.S. APP. D.C. 33, 189 F.2D 694; CF.
MARKHAM V. CABELL, 326 U.S. 404.  ALTHOUGH SEC. 32(A) BROADENED THE
CATEGORIES OF THOSE HAVING AN ENEMY STATUS WHO WERE ELIGIBLE FOR THE
RETURN OF PROPERTY VESTED DURING WORLD WAR II, UNLIKE SEC. 9(C) IT
CONTAINS NO EXPRESS PROVISION FOR JUDICIAL RELIEF IN RESPECT OF SUCH
CLAIMS. 

THE QUESTION THEN IS WHETHER A RIGHT TO SUCH RELIEF CAN FAIRLY BE
IMPLIED, FOR WE SHALL ASSUME THAT IF SUCH BE THE CASE THE REQUIREMENTS
OF SEC. 7(C) WOULD BE SATISFIED.  THE TERMS OF SEC. 32 AND ITS
LEGISLATIVE HISTORY SPEAK STRONGLY AGAINST ANY SUCH IMPLICATION.  THE
ABSENCE IN SEC. 32 OF ANY PROVISION FOR JUDICIAL RELIEF RESPECTING
"ENEMY" CLAIMS FOR THE RETURN OF PROPERTY VESTED DURING WORLD WAR II
STANDS IN SHARP CONTRAST TO THE PRESENCE OF SUCH A PROVISION IN SEC.
9(C) WITH RESPECT TO CERTAIN ENEMY CLAIMS ARISING OUT OF WORLD WAR I
VESTINGS.  THE ORIGINAL VERSION OF WHAT ULTIMATELY BECAME SEC. 32 DID
CONTAIN A PROVISION FOR JUDICIAL RELIEF COMPARABLE TO THAT IN SEC.
9(C), NOT APPLICABLE, HOWEVER, TO PROPERTY OF ENEMY NATIONAL-RESIDENTS,
AS WELL AS A "SOLE RELIEF AND REMEDY" PROVISION COMPARABLE TO THAT IN
SEC. 7(C) - H.R. 4840, SEC. 32(B), (C), IN HEARINGS BEFORE SUBCOMMITTEE
NO. 1 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES ON
H.R. 4840, 78TH CONG., 2D SESS., PP. 1-2 - BUT THE SUBSEQUENT DRAFT OF
THE BILL, SUBSTANTIALLY IN THE FORM AS FINALLY ENACTED IN MARCH 1946
(60 STAT. 50), OMITTED BOTH PROVISIONS.  SEE H.R. 3750, IN HEARINGS
BEFORE SUBCOMMITTEE NO. 1 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, ON H.R. 3750, 79TH CONG., 1ST SESS., PP. 1-2.  WHILE
THE LEGISLATIVE RECORD CONTAINS NO EXPLANATION OF THESE OMISSIONS, THE
COMMITTEE HEARINGS ON H.R. 3750 AND THOSE ON SUBSEQUENT AMENDMENTS TO
THE ACT PRECLUDE THE VIEW THAT IT WAS CONTEMPLATED THAT PERSONS HAVING
AN ENEMY STATUS, STILL LESS THOSE WHO WERE NATIONALS AND RESIDENTS OF
ENEMY COUNTRIES, SHOULD HAVE THE RIGHT OF RECOURSE TO THE COURTS WITH
RESPECT TO ADMINISTRATIVE DENIALS OF RETURN CLAIMS. 

SPEAKING TO H.R. 3750 AT THE INITIAL COMMITTEE HEARING, MR. MARKHAM,
THEN ALIEN PROPERTY CUSTODIAN, STATED: 

"I WANT TO BE SURE I MAKE THIS CLEAR.  SUPPOSING A PERSON APPLIES TO
THE CUSTODIAN FOR THE RETURN OF A PROPERTY, AND FOR REASONS THAT I DEEM
APPROPRIATE UNDER THE BILL I REFUSE TO RETURN THE PROPERTY.  NOW, WE
WILL SAY THIS PERSON WOULD HAVE TO BE A TECHNICAL ENEMY, A FRENCHMAN. 
HE HAS NO RIGHT TO COMPEL ME TO RETURN IT UNDER THIS BILL."  HEARINGS
BEFORE SUBCOMMITTEE NO. 1 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, ON H.R. 3750, 79TH CONG., 1ST SESS., P. 14; SEE ALSO
PP. 11, 15. 

AND WHEN A FEW MONTHS LATER, IN AUGUST 1946, VARIOUS AMENDMENTS TO
THE STATUTE WERE CONSIDERED AND THE SEC. 32(A)(2)(D) PROVISO WAS ADDED
(60 STAT. 930), SEC. 32 CAME UNDER SEVERE CRITICISM BECAUSE OF THE
ABSENCE OF PROVISIONS FOR JUDICIAL RELIEF IN RESPECT OF RETURN CLAIMS
BY TECHNICAL ENEMIES.  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, ON S. 2378 AND S. 2039, 79TH CONG., 2D
SESS., PP. 57-59, 61, 62-63.  THE AFFORDING OF SUCH RELIEF TO ENEMY
NATIONALS WAS, HOWEVER, AT NO TIME SUGGESTED.  CONGRESS, NEVERTHELESS,
PERMITTED SEC. 32 TO STAND WITHOUT ENACTING PROVISIONS FOR SUCH
JUDICIAL RELIEF, (FN10) AND LATER PROPOSED LEGISLATION OF THAT
CHARACTER ALSO FAILED OF ENACTMENT.  SEE S. 2544, 82D CONG., 2D SESS.;
S. 34, 83D CONG., 1ST SESS.  (FN11) 

THE CONCLUSION WHICH THE HISTORY OF SEC. 32 IMPELS IS CONFIRMED BY
THE TEXT OF THE SECTION AND OTHER PROVISIONS OF THE ACT.  THE ABSENCE
OF ANY PROVISION FOR RECOURSE TO THE COURTS IN CONNECTION WITH SEC.
32(A) RETURN CLAIMS CONTRASTS STRONGLY WITH THE CARE THAT CONGRESS TOOK
TO PROVIDE FOR AND LIMIT JUDICIAL REMEDIES WITH RESPECT TO OTHER
ASPECTS OF THE SECTION AND OTHER PROVISIONS OF THE ACT.  SEE, E.G.,
SECS. 32(D), 32(E), 32(F), (FN12) 33, 34(E), 34(F), 34(I).  IT IS NOT
OF MOMENT THAT THESE PROVISIONS CONCERNED DIRECT JUDICIAL RELIEF, AND
NOT COURT REVIEW OF DENIALS OF ADMINISTRATIVE RELIEF.  THE POINT IS
THAT IN THIS ACT CONGRESS WAS ADVERTENT TO THE ROLE OF COURTS, AND AN
ABSENCE IN ANY SPECIFIC AREA OF ANY KIND OF PROVISION FOR JUDICIAL
PARTICIPATION STRONGLY INDICATES A LEGISLATIVE PURPOSE THAT THERE BE NO
SUCH PARTICIPATION.  BEYOND THIS, THE PERMISSIVE TERMS IN WHICH THE
SEC. 32 RETURN PROVISIONS ARE DRAWN (ANTE, P. 667) PERSUASIVELY
INDICATE THAT THEIR ADMINISTRATION WAS COMMITTED ENTIRELY TO THE
DISCRETIONARY JUDGMENT OF THE EXECUTIVE BRANCH "WITHOUT THE
INTERVENTION OF THE COURTS."  SEE WORK V. RIVES, 267 U.S. 175, 182. 

PETITIONER, HOWEVER, RELYING ON MCGRATH V. KRISTENSEN, 340 U.S. 162,
CONTENDS THAT EVEN THOUGH HE MIGHT NOT BE ENTITLED TO JUDICIAL REVIEW
OF AN ADVERSE ADMINISTRATIVE DETERMINATION ON THE MERITS OF HIS CLAIM,
HE IS NONETHELESS ENTITLED TO SUCH REVIEW ON THE ISSUE OF HIS
ELIGIBILITY UNDER THE SEC. 32(A)(2)(D) PROVISO, THE ONLY ISSUE HERE
INVOLVED.  THE KRISTENSEN CASE, INVOLVING ELIGIBILITY FOR SUSPENSION OF
DEPORTATION UNDER SEC. 244 OF THE IMMIGRATION AND NATIONALITY ACT (66
STAT. 214, 8 U.S.C. SEC. 1254), BEARS LITTLE RESEMBLANCE TO THE
SITUATION INVOLVED HERE.  SEE HEIKKILA V. BARBER, 345 U.S. 229, 233;
SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297, 301.  THE
STRUCTURE OF SEC. 32(A) DOES NOT PERMIT OF ANY SUCH DISTINCTION IN THIS
CASE.  COMPARE H.R. 4840, 78TH CONG., 2D SESS., SEC. 32(A).  INDEED, IT
IS NOT CERTAIN WHETHER PETITIONER'S THEORY OF PARTIAL REVIEWABILITY
WOULD APPLY ONLY TO THE PROVISO WITH WHICH HE IS CONCERNED; TO ALL OF
PARAGRAPH (2), BUT ONLY TO THAT PARAGRAPH; OR TO PARAGRAPHS (1), (3),
AND (4) AS WELL (SEE PP. 667-668, AND NOTES 1-4, ANTE).  NONE OF THESE
ALTERNATIVES IS ACCEPTABLE.  AS TO THE FIRST AND SECOND, NO REASON
APPEARS WHY EITHER OF THESE CATEGORIES SHOULD BE SINGLED OUT FOR
SPECIAL TREATMENT, WHILE THE THIRD WOULD MAKE REVIEWABLE DETERMINATIONS
WHICH INVOLVE FACTORS WITH WHICH ONLY THE EXECUTIVE BRANCH CAN
SATISFACTORILY DEAL.  SEE, E.G., HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF
THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, ON H.R. 3750,
79TH CONG., 1ST SESS., P. 4 (PROOF OF PRE-VESTING OWNERSHIP); HEARINGS
BEFORE SUBCOMMITTEE NO. 1 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, ON H.R. 5089, 79TH CONG., 2D SESS., P. 37 (PROOF OF
"CLOAKING" ARRANGEMENTS).  BEYOND THAT, WE THINK THE CONGRESSIONAL
DECISION TO SPELL OUT IN SOME DETAIL CERTAIN LIMITATIONS ON THE POWER
IT WAS CONFERRING ON THE EXECUTIVE WAS NOT DESIGNED TO BESTOW RIGHTS ON
CLAIMANTS, ARISING OUT OF AN ASSERTEDLY TOO-NARROW READING BY THE
EXECUTIVE OF THE DISCRETIONARY POWER GIVEN HIM.  RATHER WE CONSIDER THE
SPECIFICATIONS OF PARAGRAPHS (1) THROUGH (4) AS DESIGNED TO PROVIDE
GUIDES FOR THE EXECUTIVE, THEREBY LESSENING THE ADMINISTRATIVE BURDEN
OF DECISION.  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, ON S. 2378 AND S. 2039, 79TH CONG., 2D
SESS., P. 19. 

WE CONCLUDE THAT THE TRADING WITH THE ENEMY ACT EXCLUDES A JUDICIAL
REMEDY IN THIS INSTANCE, AND THAT BECAUSE OF THIS, AS WELL AS BECAUSE
OF THE DISCRETIONARY CHARACTER OF THE ADMINISTRATIVE ACTION INVOLVED,
THE ADMINISTRATIVE PROCEDURE ACT, BY ITS OWN TERMS (ANTE, P. 670), IS
UNAVAILING TO THE PETITIONER.  (FN13) 

PETITIONER'S OTHER CONTENTIONS MAY BE DEALT WITH SHORTLY.  IT IS
URGED THAT JUDICIAL REVIEW IS IN ANY EVENT AVAILABLE BECAUSE THE
COMPLAINT, WHOSE ALLEGATIONS AS THE CASE COMES HERE MUST BE TAKEN AS
TRUE, ALLEGES THAT THE ADMINISTRATIVE ACTION WAS ARBITRARY AND
CAPRICIOUS.  HOWEVER, SUCH CONCLUSORY ALLEGATIONS MAY NOT BE READ IN
ISOLATION FROM THE COMPLAINT'S FACTUAL ALLEGATIONS AND THE
CONSIDERATIONS SET FORTH IN THE ADMINISTRATIVE DECISION UPON WHICH
DENIAL OF THIS CLAIM WAS BASED.  SEE REAGAN V. FARMERS' LOAN & TRUST
CO., 154 U.S. 362, 401.  SO READ, IT APPEARS THAT THE COMPLAINT SHOULD
PROPERLY BE TAKEN AS CHARGING NO MORE THAN THAT THE ADMINISTRATIVE
ACTION WAS ERRONEOUS.  THIS IS NOT A CASE IN WHICH IT IS CHARGED EITHER
THAT AN ADMINISTRATIVE OFFICIAL HAS REFUSED OR FAILED TO EXERCISE A
STATUTORY DISCRETION, OR THAT HE HAS ACTED BEYOND THE SCOPE OF HIS
POWERS, WHERE THE AVAILABILITY OF JUDICIAL REVIEW WOULD BE ATTENDED BY
QUITE DIFFERENT CONSIDERATIONS THAN THOSE CONTROLLING HERE.  CF., E.G.,
ACCARDI V. SHAUGHNESSY, 347 U.S. 260; LEEDOM V. KYNE, 358 U.S. 184. 
FINALLY, PETITIONER'S RELIANCE ON THE DECLARATORY JUDGMENT ACT CARRIES
HIM NO FURTHER.  SECTION 7(C) OF THE TRADING WITH THE ENEMY ACT
EMBRACES THAT FORM OF JUDICIAL RELIEF AS WELL AS OTHERS.  ADDITIONALLY,
THE DECLARATORY JUDGMENT ACT IS NOT AN INDEPENDENT SOURCE OF FEDERAL
JURISDICTION, SKELLY OIL CO. V. PHILLIPS PETROLEUM CO., 339 U.S. 667,
671; THE AVAILABILITY OF SUCH RELIEF PRESUPPOSES THE EXISTENCE OF A
JUDICIALLY REMEDIABLE RIGHT.  NO SUCH RIGHT EXISTS HERE. 

WE CONCLUDE THAT THE COURT OF APPEALS CORRECTLY HELD THAT THE
DISTRICT COURT LACKED JURISDICTION OVER THIS ACTION, AND THAT ITS
JUDGMENT MUST BE AFFIRMED. 

FN1  SEC. 32(A)(1):  "THAT THE PERSON WHO HAS FILED A NOTICE OF CLAIM
FOR RETURN, IN SUCH FORM AS THE PRESIDENT OR SUCH OFFICER OR AGENCY MAY
PRESCRIBE, WAS THE OWNER OF SUCH PROPERTY OR INTEREST IMMEDIATELY PRIOR
TO ITS VESTING IN OR TRANSFER TO THE ALIEN PROPERTY CUSTODIAN, OR IS
THE LEGAL REPRESENTATIVE (WHETHER OR NOT APPOINTED BY A COURT IN THE
UNITED STATES), OR SUCCESSOR IN INTEREST BY INHERITANCE, DEVISE,
BEQUEST, OR OPERATION OF LAW, OF SUCH OWNER  ...  ." 

FN2  SEC. 32(A)(2) DISQUALIFIES:  (A) THE GOVERNMENTS OF GERMANY,
JAPAN, BULGARIA, HUNGARY, AND RUMANIA; (B) CORPORATIONS OR ASSOCIATIONS
ORGANIZED UNDER THE LAWS OF SUCH NATIONS; (C) PERSONS VOLUNTARILY
RESIDENT SINCE DEC. 7, 1941, IN ANY SUCH NATION, OTHER THAN AMERICAN
CITIZENS, CERTAIN DIPLOMATIC OFFICERS, OR CERTAIN PERSECUTED PERSONS;
(D) CITIZENS OF SUCH NATIONS, OTHER THAN CERTAIN PERSECUTED PERSONS,
WHO WERE PRESENT OR ENGAGED IN BUSINESS THERE BETWEEN DEC. 7, 1941, AND
MAR. 8, 1946; AND (E) CERTAIN FOREIGN CORPORATIONS OR ASSOCIATIONS
WHICH, AFTER DEC. 7, 1941, WERE CONTROLLED BY PERSONS FALLING WITHIN
THE ABOVE CATEGORIES. 

FN3  SEC. 32(A)(3):  "THAT THE PROPERTY OR INTEREST CLAIMED, OR THE
NET PROCEEDS OF WHICH ARE CLAIMED, WAS NOT AT ANY TIME AFTER SEPTEMBER
1, 1939, HELD OR USED, BY OR WITH THE ASSENT OF THE PERSON WHO WAS THE
OWNER THEREOF IMMEDIATELY PRIOR TO VESTING IN OR TRANSFER TO THE ALIEN
PROPERTY CUSTODIAN, PURSUANT TO ANY ARRANGEMENT TO CONCEAL ANY PROPERTY
OR INTEREST WITHIN THE UNITED STATES OF ANY PERSON INELIGIBLE TO
RECEIVE A RETURN UNDER SUBSECTION (A)(2) OF THIS SECTION  ...  ." 

FN4  SEC. 32(A)(4):  "THAT THE ALIEN PROPERTY CUSTODIAN HAS NO ACTUAL
OR POTENTIAL LIABILITY UNDER THE RENEGOTIATION ACT OR THE ACT OF
OCTOBER 31, 1942 (56 STAT. 1013; 35 U.S.C. SECS. 89-96), IN RESPECT OF
THE PROPERTY OR INTEREST OR PROCEEDS TO BE RETURNED AND THAT THE
CLAIMANT AND HIS PREDECESSOR IN INTEREST, IF ANY, HAVE NO ACTUAL OR
POTENTIAL LIABILITY OF ANY KIND UNDER THE RENEGOTIATION ACT OR THE SAID
ACT OF OCTOBER 31, 1942; OR IN THE ALTERNATIVE THAT THE CLAIMANT HAS
PROVIDED SECURITY OR UNDERTAKINGS ADEQUATE TO ASSURE SATISFACTION OF
ALL SUCH LIABILITIES OR THAT PROPERTY OR INTEREST OR PROCEEDS TO BE
RETAINED BY THE ALIEN PROPERTY CUSTODIAN ARE ADEQUATE THEREFOR  ...
." 

FN5  SEC. 32(A)(5). 

FN6  SEC. 32(A)(2)(D) DISQUALIFIES:  "AN INDIVIDUAL WHO WAS AT ANY
TIME AFTER DECEMBER 7, 1941, A CITIZEN OR SUBJECT OF GERMANY, JAPAN,
BULGARIA, HUNGARY, OR RUMANIA, AND WHO ON OR AFTER DECEMBER 7, 1941,
AND PRIOR TO THE DATE OF THE ENACTMENT OF THIS SECTION, WAS PRESENT
(OTHER THAN IN THE SERVICE OF THE UNITED STATES) IN THE TERRITORY OF
SUCH NATION OR IN ANY TERRITORY OCCUPIED BY THE MILITARY OR NAVAL
FORCES THEREOF OR ENGAGED IN ANY BUSINESS IN ANY SUCH TERRITORY:
PROVIDED, THAT NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION
RETURN MAY BE MADE TO AN INDIVIDUAL WHO, AS A CONSEQUENCE OF ANY LAW,
DECREE, OR REGULATION OF THE NATION OF WHICH HE WAS THEN A CITIZEN OR
SUBJECT, DISCRIMINATING AGAINST POLITICAL, RACIAL, OR RELIGIOUS GROUPS,
HAS AT NO TIME BETWEEN DECEMBER 7, 1941, AND THE TIME WHEN SUCH LAW,
DECREE, OR REGULATION WAS ABROGATED, ENJOYED FULL RIGHTS OF CITIZENSHIP
UNDER THE LAW OF SUCH NATION  ...  ." 

FN7  ON MAY 16, 1946, THE PRESIDENT DELEGATED HIS FUNCTIONS UNDER
SEC. 32(A) TO THE ALIEN PROPERTY CUSTODIAN.  EXEC. ORDER NO. 9725, 11
FED. REG. 5381.  ON OCT. 15, 1946, THE FUNCTIONS OF THE CUSTODIAN WERE
TRANSFERRED TO THE ATTORNEY GENERAL.  EXEC. ORDER NO. 9788, 11 FED.
REG.  11981. 

FN8  THE DIRECTOR STATED THE ESSENCE OF HIS DECISION AS FOLLOWS:
"EVEN IF IT WERE TO BE ASSUMED THAT DENIAL OF A LICENSE TO PRACTICE LAW
DEPRIVED CLAIMANT OF FULL RIGHTS OF CITIZENSHIP, HIS CLAIM MUST BE
DISALLOWED FOR THE REASON THAT HE WAS NOT A MEMBER OF A POLITICAL,
RACIAL OR RELIGIOUS GROUP THAT WAS DISCRIMINATED AGAINST.  ANTI-NAZIS
AND NON-NAZIS DO NOT CONSTITUTE A POLITICAL GROUP."  (CITING PAST
ADMINISTRATIVE DECISIONS.) 

FN9  SECTION 9(A) AUTHORIZES "ANY PERSON NOT AN ENEMY OR ALLY OF
ENEMY" (DEFINED IN SEC. 2 OF THE ACT, AS SUPPLEMENTED BY THE FIRST WAR
POWERS ACT, 1941, 55 STAT. 838) TO SUE IN EQUITY FOR THE RETURN OF
VESTED PROPERTY IN WHICH HE CLAIMS AN INTEREST, EITHER IN THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA OR IN THE DISTRICT COURT OF THE
DISTRICT IN WHICH THE CLAIMANT RESIDES.  40 STAT. 419, AS AMENDED, 50
U.S.C. APP. SEC. 9(A).  AS A GERMAN NATIONAL AND RESIDENT, PETITIONER
IS CONCEDEDLY AN "ENEMY" UNDER THE STATUTE. 

FN10  AT THE SAME TIME, HOWEVER, CONGRESS ENACTED OTHER PROVISIONS
RELATING TO JUDICIAL REMEDIES, SEC. 33 PROVIDING A STATUTE OF
LIMITATIONS ON THE COMMENCEMENT OF SUITS UNDER SEC.  9, AND SEC. 34
PROVIDING FOR JUDICIAL REVIEW OF ADMINISTRATIVE DETERMINATIONS ON DEBT
CLAIMS ALLOWABLE OUT OF VESTED PROPERTY (60 STAT. 925).  IN CONNECTION
WITH THE FORMER SECTION THERE WAS SPREAD IN THE CONGRESSIONAL RECORD,
WITH THE APPROVAL OF THE CHAIRMAN AND RANKING MEMBER OF THE HOUSE
JUDICIARY COMMITTEE, A LETTER FROM THE CUSTODIAN STATING HIS
UNDERSTANDING THAT "THIS AMENDMENT IS NOT TO BE REGARDED AS IMPLYING
THAT THERE IS JUDICIAL REVIEW UNDER SECTION 32."  92 CONG. REC. 10486. 
SIMILARLY, IN CONNECTION WITH THE ENACTMENT OF SEC. 32, A FEW MONTHS
BEFORE, CONGRESS HAD ADDED TO THE ACT SEC. 20 PROVIDING FOR JUDICIAL
REVIEW OF ADMINISTRATIVE ALLOWANCES OF COUNSEL FEES IN RETURN
PROCEEDINGS BEFORE THE CUSTODIAN, 60 STAT. 54.  SEE ALSO S. REP. NO.
920, 79TH CONG., 2D SESS., P. 7. 

FN11  MORE PARTICULARLY WITH REFERENCE TO THE SEC. 32(A)(2)(D)
PROVISO, NEITHER THE COMMITTEE HEARINGS PRECEDING ITS ENACTMENT, SEE
HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY, ON S. 2378 AND S. 2039, 79TH CONG., 2D SESS.; CF. HEARINGS
BEFORE SUBCOMMITTEE NO. 1 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, ON H.R. 5089, 79TH CONG., 2D SESS., NOR LATER SENATE
OR HOUSE REPORTS REFERRING TO THE PROVISO - SEE S. REP. NO. 784, 81ST
CONG., 1ST SESS.; H.R. REP. NO. 2338, 81ST CONG., 2D SESS.; S. REP. NO.
600, 82D CONG., 1ST SESS.; FINAL REPORT OF THE SUBCOMMITTEE ON
ADMINISTRATION OF THE TRADING WITH THE ENEMY ACT, SENATE COMMITTEE ON
THE JUDICIARY, PURSUANT TO S. RES. 245, 82D CONG., 2D SESS., AS AMENDED
BY S. RES. 47, AND S. RES. 120, 83D CONG., 1ST SESS. - CONTAIN ANY
SUGGESTION THAT JUDICIAL REVIEW WAS CONTEMPLATED IN CONNECTION WITH
SUCH CLAIMS. 

FN12  THIS SECTION, WHICH REQUIRES THE CUSTODIAN TO PUBLISH IN THE
FEDERAL REGISTER A 30-DAY NOTICE OF HIS INTENTION TO RETURN VESTED
PROPERTY TO CLAIMANTS OTHER THAN RESIDENTS OF THE UNITED STATES OR
DOMESTIC CORPORATIONS, PROVIDES THAT PUBLICATION OF SUCH NOTICE "SHALL
CONFER NO RIGHT OF ACTION UPON ANY PERSON TO COMPEL THE RETURN OF ANY
SUCH PROPERTY," AND FURTHER THAT ANY SUCH NOTICE MAY BE REVOKED BY THE
CUSTODIAN BY APPROPRIATE PUBLICATION IN THE FEDERAL REGISTER. 

FN13  THE FACT THAT IN A THIRD-PARTY SUIT AFFECTING RETURNED
PROPERTY, THE COURTS MUST, IN ACCORDANCE WITH SEC. 32(E), DETERMINE, IF
RELEVANT, THE CLAIMANT'S ELIGIBILITY UNDER THE SEC. 32(A)(2)(D)
PROVISO, DOES NOT MILITATE AGAINST THIS CONCLUSION.  FIRST, IT IS FAR
FROM CLEAR THAT IN SUCH CIRCUMSTANCES THE DOCTRINE OF PRIMARY
JURISDICTION WOULD NOT CALL FOR A REFERRAL OF THAT ISSUE TO THE
ATTORNEY GENERAL.  CF. UNITED STATES NAVIGATION CO. V. CUNARD S.S. CO.,
284 U.S. 474; FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570;
MARITIME BOARD V. ISBRANDTSEN, 356 U.S. 481, 496-498.  MOREOVER, EVEN
IF NECESSITY COMPELLED JUDICIAL DETERMINATION IN SUITS BETWEEN PRIVATE
PARTIES OF THE ISSUE ORDINARILY DISPOSED OF UNDER SEC. 32(A), WE WOULD
NOT BE JUSTIFIED, IN THE CONTEXT OF THE OTHER PROVISIONS OF THIS
STATUTE, IN INFERRING FROM THAT A CONGRESSIONAL WILLINGNESS TO HAVE
EXECUTIVE DETERMINATIONS REVIEWED IN COURT. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

THIS COURT HAS GONE FAR TOWARDS ESTABLISHING THE PROPOSITION THAT
PRECLUSION OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION ADJUDICATING
PRIVATE RIGHTS IS NOT LIGHTLY TO BE INFERRED.  SEE LEEDOM V. KYNE, 358
U.S. 184; HARMON V. BRUCKER, 355 U.S. 579; STARK V. WICKARD, 321 U.S.
288; AMERICAN SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94. 
GENERALIZATIONS ARE DANGEROUS, BUT WITH SOME SAFETY ONE CAN SAY THAT
JUDICIAL REVIEW OF SUCH ADMINISTRATIVE ACTION IS THE RULE, AND
NONREVIEWABILITY AN EXCEPTION WHICH MUST BE DEMONSTRATED.  (FN1)  TO BE
SURE, A CLEAR COMMAND OF THE STATUTE WILL PRECLUDE REVIEW; AND SUCH A
COMMAND OF THE STATUTE MAY BE INFERRED FROM ITS PURPOSE, THOUGH LEEDOM
V. KYNE, SUPRA, WHERE I THOUGHT NONREVIEWABILITY PROVED FROM THE
CONGRESSIONAL PURPOSE, SHOWS THAT THE COURT IS FAR FROM QUICK TO DRAW
SUCH A CONCLUSION.  I CANNOT AGREE THAT THE STATUTE HERE GIVES ANY
CLEAR DIRECTION THAT THIS ADMINISTRATIVE DETERMINATION THAT AS A MATTER
OF LAW PETITIONER WAS INELIGIBLE FOR THE EXERCISE OF DISCRETIONARY
RELIEF UNDER SEC. 32(A) SHOULD NOT BE REVIEWABLE BY THE COURTS. 
QUESTIONS AS TO THE SCOPE OF THAT REVIEW, OF COURSE, ARE NOT NOW BEFORE
US; SIMPLY WHETHER THE POWER EXISTS AT ALL. 

SOLE RELIEF AND REMEDY" OF CLAIMANTS OF VESTED PROPERTY, AND, TO BE
SURE, THIS LANGUAGE IS "ALL-INCLUSIVE," BECKER STEEL CO. V. CUMMINGS,
296 U.S. 74, 79.  LET US, THEN, TAKE A CLOSE AND FULLY-FOCUSED LOOK AT
WHAT THOSE REMEDIES INCLUDE, AND COMPARE THEM WITH WHAT PETITIONER
SEEKS. 

CLAIM, PROVIDES A JUDICIAL REMEDY FOR THOSE WHO ARE NOT ENEMIES AND NOT
ALLIES OF ENEMIES; THEY MAY SUE IN EQUITY FOR THE RETURN OF THEIR
PROPERTY.  (FN2)  SECTION 9(C) GIVES THE SAME REMEDY TO CERTAIN CLASSES
OF ENEMIES.  (FN3)  BUT IT IS APPARENT FROM BOTH THESE PROVISIONS THAT
THEY CONTEMPLATE AN INDEPENDENT JUDICIAL REMEDY - A SUIT TO RETURN
PROPERTY; NOT AN ACTION TO REVIEW CERTAIN DETERMINATIONS OF
ADMINISTRATIVE OFFICERS.  THERE IS NOT EVEN A PROVISION THAT
APPLICATION MUST BE MADE FOR ADMINISTRATIVE RELIEF BEFORE SUIT IS
BROUGHT.  THERE SIMPLY IS A REQUIREMENT FOR THE FILING OF A NOTICE OF
CLAIM, WHICH THE STATUTE CLEARLY DISTINGUISHES FROM MAKING AN
APPLICATION FOR AN ADMINISTRATIVE RETURN, THE LATTER BEING OPTIONAL. 
DRAEGER SHIPPING CO. V. CROWLEY, 49 F. SUPP. 215; DUISBERG V. CROWLEY,
54 F. SUPP. 365.  SEE STOEHR V. WALLACE, 255 U.S. 239, 246.  EVEN WHERE
THE APPLICANT CHOOSES TO SEEK AN ADMINISTRATIVE RETURN, SUIT MAY BE
INSTITUTED BEFORE THE ADMINISTRATIVE ACTION IS COMPLETED.  THE
ADMINISTRATIVE REMEDY AND THE JUDICIAL REMEDY ARE EACH COMPLETELY
INDEPENDENT OF THE OTHER; CONGRESS HAS MADE THIS CLEAR EVEN TO THE
EXTENT OF PUTTING AN "AND/OR" ON THE STATUTE BOOKS.  IN NO SENSE, THEN,
CAN THE INDEPENDENT JUDICIAL REMEDY OF SEC. 9 BE SAID TO BE A JUDICIAL
REVIEW OF ADMINISTRATIVE ACTION.  IT IS INDEPENDENT OF ANY
ADMINISTRATIVE ACTION'S BEING TAKEN.  IT REQUIRES THE COURTS TO MAKE A
PLENARY, DE NOVO ADJUDICATION OF ALL THE CONTROVERTED ISSUES AS THEY
WOULD IN ANY LAWSUIT BETWEEN CITIZENS. 

OTHER HAND PROVIDES SIMPLY FOR AN ADMINISTRATIVE REMEDY.  THAT IT DOES,
OF COURSE, UNDER SEC. 7(C) PRECLUDES THE INFERENCE OF ANY INDEPENDENT
JUDICIAL REMEDY SUCH AS SEC. 9 PROVIDES.  BUT THERE IS NO REASON WHY IT
SHOULD PRECLUDE THE INFERENCE THAT ADMINISTRATIVE ACTION TAKEN UNDER IT
SHOULD BE SUBJECT TO JUDICIAL REVIEW.  THE COURTS HAVE DEVELOPED MANY
PRINCIPLES DEFINING AND LIMITING THE QUANTUM OF JUDICIAL REVIEW THAT
MAY BE AFFORDED ADMINISTRATIVE ADJUDICATION.  THIS GENERALLY NARROW
CHARACTER OF JUDICIAL REVIEW, IN CONTRAST TO AN INDEPENDENT LAWSUIT
DIRECTED AT THE SAME END AS AN ADMINISTRATIVE ADJUDICATION, POINTS UP
THE DISTINCTION BETWEEN THE INDEPENDENT ACTION UNDER SEC. 9 AND WHAT IS
CONTENDED FOR HERE.  IN THE LATTER, THE COURTS CANNOT ORDER THE RETURN
OF THE PROPERTY.  THEY SIMPLY MAY SAY THAT THE ADMINISTRATOR CANNOT
STAND ON THE GROUND HE GAVE FOR NOT RETURNING IT.  SEE GREENE V.
MCELROY, 360 U.S. 474, 510 (CONCURRING OPINION).  THE FORMER IS CLEARLY
PRECLUDED, BUT THE LATTER HARDLY IS.  THE APPROACH TO INTERPRETATION
THAT CASES LIKE KYNE, HARMON AND STARK SYMBOLIZE SHOULD INDICATE THAT
JUDICIAL REVIEW OF THE ADMINISTRATIVE ACTION UNDER SEC. 32(A) IS
AVAILABLE.  SECTION 7(C) IS BY NO MEANS OFFENDED BY THIS SINCE THIS
CONSTRUCTION RECOGNIZES THAT THE SOLE REMEDY UNDER SEC. 32(A) IS
ADMINISTRATIVE IN NATURE, BUT ATTACHES TO THAT ADMINISTRATIVE REMEDY
THE GENERAL ATTRIBUTE OF ADMINISTRATIVE REMEDIES IN OUR SYSTEM -
JUDICIAL REVIEW. 

THE COURT POINTS TO THE LEGISLATIVE HISTORY OF SEC. 32(A) AS
INDICATING A CONTRARY CONCLUSION.  IT SAYS THAT A JUDICIAL REMEDY WAS
ORIGINALLY PROVIDED FOR IN EARLY VERSIONS OF THE BILL WHICH ADDED SEC.
32(A) TO THE STATUTE, BUT THAT THE FINAL ENACTMENT OMITTED IT.  THIS
WOULD BE VERY RELEVANT IF WHAT HAD BEEN ORIGINALLY CONTAINED IN THE
BILL HAD BEEN A PROVISION FOR JUDICIAL REVIEW OF ACTION TAKEN UNDER
SEC. 32(A), SUCH AS WHAT PETITIONER NOW CONTENDS IS IMPLICIT.  BUT IT
WAS NOT; IT WAS RATHER A PROVISION FOR AN INDEPENDENT JUDICIAL REMEDY,
PATTERNED ENTIRELY IN THE STYLE OF SEC. 9.  (FN4)  THAT IT WAS OMITTED
OF COURSE ADDS ANOTHER PROOF THAT THERE CAN BE NO INDEPENDENT JUDICIAL
ACTION TO GET A RETURN UNDER SEC. 32(A); BUT IT DOES NOT TELL US THAT
NORMAL JUDICIAL REVIEW INTO ADMINISTRATIVE ACTION UNDER SEC. 32(A) IS
TO BE FORECLOSED.  MR. MARKHAM'S REMARKS, QUOTED BY THE COURT, ARE OF
COURSE EXPLICABLE ON THE GROUND THAT THERE WAS NO COUNTERPART OF SEC.
9'S PROVISION FOR AN INDEPENDENT LAWSUIT IN SEC. 32(A).  IN FACT, THEY
WERE SPOKEN IN RESPONSE TO A QUESTION WHETHER "THE INDIVIDUAL WHOSE
PROPERTY HAS BEEN TAKEN OR AFFECTED CAN APPEAL TO THE COURTS OF THE
LAND TO HAVE HIS EQUITY DETERMINED."  HEARING BEFORE SUBCOMMITTEE NO.
1, COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, ON H.R. 3750,
79TH CONG., 1ST SESS., P. 13.  THE QUESTION IS A GOOD DESCRIPTION OF
THE FUNCTIONS OF COURTS UNDER SEC. 9.  IT DOES NOT DESCRIBE THE
FUNCTIONS OF COURTS EXERCISING A REVIEW FUNCTION OF ADMINISTRATIVE
ACTION UNDER SEC. 32(A).  THE SUBSEQUENT LEGISLATION WHICH THE COURT
MENTIONS AS HAVING FAILED OF PASSAGE, S. 2544, 82D CONG., 2D SESS.; S.
34, 83D CONG., 1ST SESS., WAS NOT LEGISLATION TO PROVIDE JUDICIAL
REVIEW, BUT TO AFFORD AN INDEPENDENT JUDICIAL REMEDY SIMILAR TO SEC.
9.  (FN5)  THUS IT IS APPARENT THAT THE ALTERNATIVE THAT WAS PRESENTED
TO CONGRESS AND REJECTED CLEARLY ENOUGH WAS NOT ORDINARY JUDICIAL
REVIEW OF DETERMINATIONS UNDER SEC. 32(A), BUT INDEPENDENT JUDICIAL
ACTION OF A SORT COMPARABLE TO SEC. 9'S. 

THE COURT DOES NOT DEMONSTRATE ANY POLICY ON WHICH CONGRESS MAY HAVE
BEEN ACTING AND FROM WHICH IT MIGHT BE INFERRED THAT JUDICIAL REVIEW
WAS IMPLIEDLY PRECLUDED UNDER SEC. 32.  CONGRESS CLEARLY PRECLUDED
INDEPENDENT LAWSUITS, BUT THERE IS NO DEMONSTRATION THAT IT ACTED IN
PURSUANCE OF ANY PURPOSE WHICH WOULD BE BROAD ENOUGH IMPLIEDLY TO
NEGATE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION AS WELL.  SO THERE IS
NO REASON WHY THE GENERAL PRINCIPLE SHOULD NOT APPLY:  "GENERALLY,
JUDICIAL RELIEF IS AVAILABLE TO ONE WHO HAS BEEN INJURED BY AN ACT OF A
GOVERNMENT OFFICIAL WHICH IS IN EXCESS OF HIS EXPRESS OR IMPLIED
POWERS."  HARMON V. BRUCKER, SUPRA, AT 581-582. 

THERE IS THEN CLEARLY ESTABLISHED JURISDICTION TO REVIEW UNDER THE
GENERAL PRINCIPLES WHICH FIND EXPRESSION IN SEC. 10 OF THE
ADMINISTRATIVE PROCEDURE ACT; THE STATUTE DOES NOT "PRECLUDE JUDICIAL
REVIEW."  60 STAT. 243, 5 U.S.C. SEC. 1009.  BUT THE COURT ALSO HOLDS
THAT, WITHIN THE MEANING OF SEC. 10, "AGENCY ACTION IS BY LAW COMMITTED
TO AGENCY DISCRETION."  SINCE WANT OF JURISDICTION IN THE DISTRICT
COURT IS FOUND, I TAKE IT THE COURT HOLDS THAT THE QUESTION, REVIEW OF
WHICH IS NOW SOUGHT, WHICH IS AN ISSUE OF STATUTORY CONSTRUCTION, IS
TOTALLY AND EXCLUSIVELY FOR THE ADMINISTRATIVE OFFICERS TO DETERMINE -
NOT SIMPLY THAT THE COURTS ARE TO GIVE THEIR DETERMINATION OF THIS
QUESTION OF LAW CONSIDERABLE WEIGHT.  CF. LABOR BOARD V. HEARST
PUBLICATIONS, INC., 322 U.S. 111, 130; GRAY V. POWELL, 314 U.S. 402,
411.  ONCE IT IS ESTABLISHED THAT THE STATUTE DOES NOT PRECLUDE
JUDICIAL REVIEW, THIS CONCLUSION SEEMS TO ME UNTENABLE.  THE ISSUE IS A
QUESTION OF LAW; THE CONSTRUCTION OF A DETAILED AND MODERATELY
SPECIFIED STANDARD.  IT IS NOT LIKE THE ULTIMATE DETERMINATION THAT THE
RETURN BE "IN THE INTEREST OF THE UNITED STATES," SEC. 32(A)(5), WHICH
IS CLEARLY WHERE THE ULTIMATE RESERVOIR OF DISCRETION LIES UNDER SEC.
32(A).  THIS DETERMINATION WAS NEVER REACHED.  WE NEED NOT SPECULATE
ABOUT THE BREADTH OF JUDICIAL INQUIRY IN JUDICIAL REVIEW WHERE THE
ADMINISTRATIVE DECISION NOT TO RETURN THE PROPERTY IS BASED ON THAT
GROUND, OR IS BASED ON ONE OF THE OTHER GROUNDS UNDER THE STATUTE.  THE
QUANTUM OF REVIEW CAN BE ADJUSTED TO THE PROBLEM BEFORE THE COURTS. 
HERE THE DETERMINATION NOT TO RETURN WAS BASED ON A HOLDING THAT
PETITIONER DID NOT COME WITHIN THE FIRST PROVISO TO SEC. 32(A)(2)(D). 
THE PROVISO'S TERMS WERE VIEWED ADMINISTRATIVELY NOT AS GUIDES TO AN
ADMINISTRATIVE DISCRETION BUT AS LEGAL STANDARDS.  UNDER COMMONPLACE
PRINCIPLES, THE DETERMINATION MUST STAND OR FALL ON THAT BASIS.  IT MAY
BE THAT THE NOVELTY OF THE STANDARDS OF THAT PROVISO (SEE SUBCOMMITTEE
HEARINGS, SENATE COMMITTEE ON THE JUDICIARY, ON S. 2378 AND S. 2039,
79TH CONG., 2D SESS., P. 19) SHOULD TEACH THE COURTS TO GIVE
CONSIDERABLE WEIGHT TO THE ADMINISTRATIVE CONSTRUCTION OF THE LAW.  BUT
THAT IS NOT TO SAY, AS THE COURT DOES, THAT IT IS SO MUCH A MATTER OF
ADMINISTRATIVE DISCRETION AS TO PRECLUDE JUDICIAL REVIEW.  (FN6)  TO MY
MIND, MCGRATH V. KRISTENSEN, 340 U.S. 162, IS SQUARELY IN POINT.  THERE
THERE WAS A STATUTE WHICH BRISTLED WITH DISCRETION AS MUCH AS THIS
ONE.  BUT WHERE THE ADMINISTRATIVE DECISION UNDER IT WAS NOT RENDERED
ON THE BASIS FOR THE EXERCISE OF DISCRETION THE STATUTE PROVIDED, BUT
AS A MATTER OF LAW, JUDICIAL REVIEW WAS AVAILABLE.  WE RETREAT FROM
ESTABLISHED PRINCIPLES OF ADMINISTRATIVE LAW WHEN WE SAY IT IS
UNAVAILABLE HERE.  THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE
REVERSED, AND THE ORDER OF THE DISTRICT COURT DECLINING TO DISMISS THE
COMPLAINT FOR WANT OF JURISDICTION SHOULD BE AFFIRMED. 

FN1  SEE JAFFE, THE RIGHT TO JUDICIAL REVIEW, 71 HARV. L. REV. 401,
432. 

FN2  IN PERTINENT PART, SEC. 9(A) PROVIDES: 

"(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, OR TO WHOM ANY DEBT MAY BE OWING FROM
AN ENEMY OR ALLY OF ENEMY WHOSE PROPERTY OR ANY PART THEREOF SHALL 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,
CONVEYANCE, TRANSFER, ASSIGNMENT, OR DELIVERY TO SAID CLAIMANT OF THE
MONEY OR OTHER PROPERTY SO HELD BY THE ALIEN PROPERTY CUSTODIAN OR BY
THE TREASURER OF THE UNITED STATES, OR OF THE INTEREST THEREIN TO WHICH
THE PRESIDENT SHALL DETERMINE SAID CLAIMANT IS ENTITLED:  PROVIDED,
THAT NO SUCH ORDER BY THE PRESIDENT SHALL BAR ANY PERSON FROM THE
PROSECUTION OF ANY SUIT AT LAW OR IN EQUITY AGAINST THE CLAIMANT TO
ESTABLISH ANY RIGHT, TITLE, OR INTEREST WHICH HE MAY HAVE IN SUCH MONEY
OR OTHER PROPERTY.  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
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OR IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT IN WHICH SUCH
CLAIMANT RESIDES, OR, IF A CORPORATION, WHERE IT HAS ITS PRINCIPAL
PLACE OF BUSINESS (TO WHICH SUIT THE ALIEN PROPERTY CUSTODIAN OR THE
TREASURER OF THE UNITED STATES, AS THE CASE MAY BE, SHALL BE MADE A
PARTY DEFENDANT), TO ESTABLISH THE INTEREST, RIGHT, TITLE, OR DEBT SO
CLAIMED, AND IF SO ESTABLISHED THE COURT SHALL ORDER THE PAYMENT,
CONVEYANCE, TRANSFER, ASSIGNMENT, OR DELIVERY TO SAID CLAIMANT OF THE
MONEY OR OTHER PROPERTY SO HELD BY THE ALIEN PROPERTY CUSTODIAN OR BY
THE TREASURER OF THE UNITED STATES OR THE INTEREST THEREIN TO WHICH THE
COURT SHALL DETERMINE SAID CLAIMANT IS ENTITLED  ...  ."   40 STAT.
419, AS AMENDED, 50 U.S.C. APP. SEC. 9(A). 

FN3  SECTION 9(C) PROVIDES: 

"(C) ANY PERSON WHOSE MONEY OR OTHER PROPERTY THE PRESIDENT IS
AUTHORIZED TO RETURN UNDER THE PROVISIONS OF SUBSECTION (B) HEREOF MAY
FILE NOTICE OF CLAIM FOR THE RETURN OF SUCH MONEY OR OTHER PROPERTY, AS
PROVIDED IN SUBSECTION (A) HEREOF, AND THEREAFTER MAY MAKE APPLICATION
TO THE PRESIDENT FOR ALLOWANCE OF SUCH CLAIM AND/OR MAY INSTITUTE SUIT
IN EQUITY TO RECOVER SUCH MONEY OR OTHER PROPERTY, AS PROVIDED IN SAID
SUBSECTION, AND WITH LIKE EFFECT.  THE PRESIDENT OR THE COURT, AS THE
CASE MAY BE, MAY MAKE THE SAME DETERMINATIONS WITH RESPECT TO
CITIZENSHIP AND OTHER RELEVANT FACTS THAT THE PRESIDENT IS AUTHORIZED
TO MAKE UNDER THE PROVISIONS OF SUBSECTION (B) HEREOF."  AS ADDED, 41
STAT. 980, AS AMENDED, 50 U.S.C.  APP. SEC. 9(C). 

THE RELEVANT CLASSES OF ENEMIES ARE SET FORTH IN SEC. 9(B). 
PETITIONER MAKES NO CLAIM UNDER SEC. 9(C). 

FN4  IN FACT, THE INDEPENDENT JUDICIAL REMEDY WAS NOT EVEN PUT IN
PARI MATERIA WITH THE ADMINISTRATIVE REMEDY UNDER SEC. 32(A).  IT
SIMPLY PROVIDED: 

"AFTER FILING A CLAIM WITH THE ALIEN PROPERTY CUSTODIAN PURSUANT TO
SUBSECTION (A) HEREOF, A CLAIMANT MAY INSTITUTE A SUIT IN EQUITY IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OR IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT IN WHICH SUCH
CLAIMANT RESIDES, OR, IF A CORPORATION, WHERE IT HAS ITS PRINCIPAL
PLACE OF BUSINESS (TO WHICH SUIT THE CUSTODIAN SHALL BE MADE A PARTY
DEFENDANT), TO ESTABLISH THAT HE IS NOT A FOREIGN COUNTRY OR NATIONAL
THEREOF AS DEFINED PURSUANT TO SUBSECTION (B) OF SECTION 5 HEREOF, AND
TO ESTABLISH THE INTEREST, RIGHT, OR TITLE CLAIMED.  THE CLAIMANT SHALL
OBTAIN A JUDGMENT OR DECREE ORDERING THE RETURN TO HIM OF THE INTEREST,
RIGHT, OR TITLE TO WHICH THE COURT SHALL DETERMINE HE IS ENTITLED, BUT
ONLY IF THE COURT SHALL ADJUDICATE THAT HE IS NOT A FOREIGN COUNTRY OR
NATIONAL THEREOF  ...  ."   SEC.  32(B), H.R. 4840, IN HEARING BEFORE
SUBCOMMITTEE NO. 1, COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, ON H.R. 4840, 78TH CONG., 2D SESS., PP. 1-2. 

FN5  THIS LEGISLATION SEEMS TO HAVE CONTEMPLATED A JUDICIAL REMEDY
MUCH BROADER THAN THAT OF THE EARLY PROVISIONS BEFORE THE ADDITION OF
SEC. 32, SEE NOTE 4, SUPRA.  THE BILLS COVERED "ANY PERSON ELIGIBLE FOR
A RETURN UNDER THIS SECTION" (SEC. 32) AND PROVIDED THAT SUCH A PERSON,
AFTER FILING A NOTICE OF CLAIM, MIGHT "INSTITUTE A SUIT IN EQUITY TO
RECOVER SUCH MONEY OR OTHER PROPERTY IN THE MANNER PROVIDED BY
SUBSECTION 9(A) HEREOF AND WITH LIKE EFFECT." 

FN6  ONE OF THE GROUNDS ON WHICH THE ADMINISTRATIVE OFFICIALS MAY
DECLINE RETURN UNDER SEC. 32(A) IS THAT THE CLAIMANT WAS NOT THE OWNER
OF THE PROPERTY AT THE TIME IT WAS VESTED, OR THE SUCCESSOR THEREOF. 
SEC. 32(A)(1).  IS THIS SIMPLY TO BE DEEMED A GUIDE TO THE
ADMINISTRATIVE DISCRETION IN GRANTING RETURNS, OR A LEGAL STANDARD? 
..END :



UNITED STATES V. AMERICAN-FOREIGN STEAMSHIP CORP. 363 U.S. 685 


NO. 138.  ARGUED APRIL 25, 1960.  - DECIDED JUNE 20, 1960.  - 265 F.2D
136, JUDGMENT VACATED AND CAUSE REMANDED. 


A CIRCUIT JUDGE WHO HAS RETIRED UNDER 28 U.S.C. SEC. 371(B) IS NOT
ELIGIBLE TO PARTICIPATE IN THE DECISION OF A CASE ON REHEARING EN BANC
UNDER 28 U.S.C. SEC. 46(C), WHICH PROVIDES THAT SUCH A PROCEEDING SHALL
BE "HEARD AND DETERMINED" BY A COURT CONSISTING OF ALL "ACTIVE CIRCUIT
JUDGES" OF THE CIRCUIT.  PP. 685-691. 

UNITED STATES V. AMERICAN-FOREIGN STEAMSHIP CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE QUESTION TO BE DECIDED HERE IS A NARROW ONE.  THE JUDICIAL CODE
PROVIDES THAT IN THE UNITED STATES COURTS OF APPEALS "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."  IT FURTHER PROVIDES THAT "A COURT
IN BANC SHALL CONSIST OF ALL ACTIVE CIRCUIT JUDGES OF THE CIRCUIT."  28
U.S.C. SEC. 46(C).  THE SOLE ISSUE PRESENTED IS WHETHER A CIRCUIT JUDGE
WHO HAS RETIRED IS ELIGIBLE UNDER THIS STATUTE TO PARTICIPATE IN THE
DECISION OF A CASE ON REHEARING EN BANC.  WE HAVE CONCLUDED THAT HE IS
NOT. 

THIS LITIGATION AROSE WHEN THE RESPONDENTS, WHO HAD CHARTERED SHIPS
FROM THE GOVERNMENT UNDER THE MERCHANT SHIP SALES ACT, 50 U.S.C. APP.
SECS. 1735 ET SEQ., SUED THE GOVERNMENT IN THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK TO RECOVER AMOUNTS OF ALLEGEDLY EXCESSIVE
CHARTER HIRE WHICH HAD BEEN ASSESSED BY THE MARITIME COMMISSION.  THE
GOVERNMENT MOVED TO DISMISS THE LIBELS ON THE GROUND THAT THE CLAIMS
WERE BARRED BY THE TWO-YEAR LIMITATION PERIOD PRESCRIBED BY THE SUITS
IN ADMIRALTY ACT, 46 U.S.C. SEC. 745.  THE LIBELS WERE DISMISSED IN THE
DISTRICT COURT ON THE AUTHORITY OF THE SECOND CIRCUIT DECISIONS IN
SWORD LINE, INC., V. UNITED STATES, 228 F.2D 344, 230 F.2D 75, AFF'D AS
TO ADMIRALTY JURISDICTION, 351 U.S. 976, AND AMERICAN EASTERN CORP. V.
UNITED STATES, 231 F.2D 664.  (FN1) 

THE DISTRICT COURT'S DECISIONS WERE THEREAFTER AFFIRMED BY THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.  THAT COURT, CONSISTING
OF CIRCUIT JUDGES MEDINA AND HINCKS AND RETIRED DISTRICT JUDGE LEIBELL,
HELD THAT THE ISSUES WERE CONTROLLED BY THE EARLIER SWORD LINE AND
AMERICAN EASTERN DECISIONS.  THE COURT'S OPINION STATED, HOWEVER, THAT
"IF THE SUBJECT-MATTER OF THESE APPEALS WERE RES NOVA, WE ARE BY NO
MEANS SURE THAT OUR DISPOSITIONS WOULD COINCIDE WITH THOSE MADE BY THE
MAJORITY OPINION IN SWORD LINE AND BY AMERICAN EASTERN.  HOWEVER, WE
WILL NOT OVERRULE THESE RECENT DECISIONS OF OTHER PANELS OF THE
COURT."  265 F.2D 136, 142. 

THEREAFTER, ON DECEMBER 19, 1957, THE COURT OF APPEALS GRANTED THE
LIBELLANTS' PETITION FOR REHEARING EN BANC AND ORDERED THAT ARGUMENT
THEREON BE CONFINED TO WRITTEN BRIEFS TO BE SUBMITTED WITHIN TWENTY
DAYS.  ON MARCH 1, 1958, JUDGE MEDINA RETIRED PURSUANT TO THE
PROVISIONS OF 28 U.S.C. SEC. 371(B).  (FN2)  ALMOST FIVE MONTHS LATER,
ON JULY 28, 1958, THE COURT ISSUED ITS EN BANC DECISION.  CIRCUIT
JUDGES HINCKS AND MOORE AND RETIRED CIRCUIT JUDGE MEDINA JOINED AN
OPINION ORDERING THE EARLIER THREE-JUDGE DECISION WITHDRAWN AND
REMANDING THE CAUSES TO THE DISTRICT COURT, 265 F.2D 136, 144.  JUDGES
CLARK AND WATERMAN DISSENTED.  (FN3)  IN HIS DISSENTING OPINION JUDGE
CLARK EXPRESSED DOUBT AS TO A RETIRED JUDGE'S ELIGIBILITY TO
PARTICIPATE IN AN EN BANC DECISION.  265 F.2D 136, 153. 

THE GOVERNMENT THEN FILED A PETITION FOR FURTHER REHEARING EN BANC,
DIRECTED PRIMARILY TO THE QUESTION WHICH HAD BEEN RAISED BY JUDGE
CLARK.  THE PETITION WAS DENIED IN AN OPINION BY JUDGE HINCKS JOINED BY
JUDGES MOORE AND MEDINA, STATING THE VIEW THAT "SINCE JUDGE MEDINA WAS
A MEMBER OF THE COURT IN BANC WHICH WAS DULY CONSTITUTED TO HEAR AND
DETERMINE THE ISSUES RAISED BY THE PETITION FOR REHEARING, WE THINK HIS
SUBSEQUENT RETIREMENT DID NOT AFFECT HIS COMPETENCE TO PARTICIPATE IN
THE DECISION THEREAFTER REACHED."  265 F.2D 136, 154.  JUDGES CLARK AND
WATERMAN FILED A SEPARATE STATEMENT IN WHICH THEY EXPRESSED THE OPINION
THAT JUDGE MEDINA'S PARTICIPATION IN THE EN BANC DETERMINATION WAS
PRECLUDED BY THE PLAIN LANGUAGE OF THE CONTROLLING STATUTE.  265 F.2D
136, 155.  CERTIORARI WAS GRANTED TO CONSIDER A QUESTION OF IMPORTANCE
TO THE COURTS OF APPEALS IN THE ADMINISTRATION OF THEIR JUDICIAL
BUSINESS.  361 U.S. 861. 

AS A PRELIMINARY TO DECISION OF THE PRECISE QUESTION BEFORE US IT IS
IMPORTANT TO MAKE CLEAR THAT THIS CASE IN NO WAY INVOLVES THE
ELIGIBILITY OF A RETIRED JUDGE TO PARTICIPATE IN THE HEARING, REHEARING
OR DETERMINATION OF A CASE AS A MEMBER OF A CONVENTIONAL THREE-JUDGE
COURT OF APPEALS.  SUCH PARTICIPATION IS GOVERNED BY DIFFERENT
STATUTORY PROVISIONS.  THE JUDICIAL CODE EXPLICITLY PROVIDES THAT
"JUDGES DESIGNATED OR ASSIGNED" SHALL BE "COMPETENT TO SIT AS JUDGES"
OF SUCH A COURT.   28 U.S.C. SEC. 43(B).  OTHER PROVISIONS OF THE CODE
SPELL OUT IN DETAIL THE SYSTEM UNDER WHICH DESIGNATIONS AND ASSIGNMENTS
OF RETIRED JUDGES ARE TO BE MADE.  28 U.S.C. SECS. 294, 295, 296. 
(FN4) 

MOREOVER, THERE IS NOT INVOLVED HERE ANY ISSUE AS TO THE PROCEDURE TO
BE FOLLOWED BY A COURT OF APPEALS IN DETERMINING WHETHER A HEARING OR
REHEARING EN BANC IS TO BE ORDERED.  IN THE WESTERN PACIFIC RAILROAD
CASE, 345 U.S. 247, IT WAS HELD THAT THIS QUESTION IS LARGELY TO BE
LEFT TO INTRAMURAL DETERMINATION BY EACH OF THE COURTS OF APPEALS. 
"THE COURT IS LEFT FREE TO DEVISE ITS OWN ADMINISTRATIVE MACHINERY TO
PROVIDE THE MEANS WHEREBY A MAJORITY MAY ORDER SUCH A HEARING."  345
U.S., AT 250.  (FN5) 

HERE WE ARE CONCERNED ONLY WITH THE SPECIFIC PROVISION OF THE
JUDICIAL CODE WHICH ORDAINS THAT EN BANC PROCEEDINGS SHALL BE "HEARD
AND DETERMINED" BY A COURT CONSISTING OF ALL THE "ACTIVE CIRCUIT
JUDGES" OF THE CIRCUIT INVOLVED.  THE LITERAL MEANING OF THE WORDS
SEEMS PLAIN ENOUGH.  AN "ACTIVE" JUDGE IS A JUDGE WHO HAS NOT RETIRED
"FROM REGULAR ACTIVE SERVICE."  28 U.S.C. SEC. 371(B).  A CASE OR
CONTROVERSY IS "DETERMINED" WHEN IT IS DECIDED. 

THERE IS NOTHING IN THE HISTORY OF THE LEGISLATION TO INDICATE THAT
THESE WORDS SHOULD BE UNDERSTOOD TO MEAN ANYTHING ELSE THAN WHAT THEY
SAY.  AS THE REVISER'S NOTE INDICATES, AND AS THIS COURT POINTED OUT IN
THE WESTERN PACIFIC RAILROAD CASE, 345 U.S., AT 250, 251, WHERE THE
LEGISLATIVE HISTORY WAS FULLY REVIEWED, THE STATUTORY PROVISION WAS
ADDED TO THE JUDICIAL CODE IN 1948 SIMPLY AS A "LEGISLATIVE
RATIFICATION OF TEXTILE MILLS SECURITIES CORP. V. COMMISSIONER, 314
U.S. 326 (1941) - A DECISION WHICH WENT NO FURTHER THAN TO SUSTAIN THE
POWER OF A COURT OF APPEALS TO ORDER A HEARING EN BANC."  (FN6) 

THE VIEW THAT A RETIRED CIRCUIT JUDGE IS ELIGIBLE TO PARTICIPATE IN
AN EN BANC DECISION THUS FINDS SUPPORT NEITHER IN THE LANGUAGE OF THE
CONTROLLING STATUTE NOR IN THE CIRCUMSTANCES OF ITS ENACTMENT.  INDEED,
CONGRESS MAY WELL HAVE THOUGHT THAT IT WOULD FRUSTRATE A BASIC PURPOSE
OF THE LEGISLATION NOT TO CONFINE THE POWER OF EN BANC DECISION TO THE
PERMANENT ACTIVE MEMBERSHIP OF A COURT OF APPEALS.  EN BANC COURTS ARE
THE EXCEPTION, NOT THE RULE.  THEY ARE CONVENED ONLY WHEN EXTRAORDINARY
CIRCUMSTANCES EXIST THAT CALL FOR AUTHORITATIVE CONSIDERATION AND
DECISION BY THOSE CHARGED WITH THE ADMINISTRATION AND DEVELOPMENT OF
THE LAW OF THE CIRCUIT. 

WHEN SUCH CIRCUMSTANCES APPEAR, EN BANC DETERMINATIONS MAKE "FOR MORE
EFFECTIVE JUDICIAL ADMINISTRATION.  CONFLICTS WITHIN A CIRCUIT WILL BE
AVOIDED.  FINALITY OF DECISION IN THE CIRCUIT COURTS OF APPEAL WILL BE
PROMOTED.  THOSE CONSIDERATIONS ARE ESPECIALLY IMPORTANT IN VIEW OF THE
FACT THAT IN OUR FEDERAL JUDICIAL SYSTEM THESE COURTS ARE THE COURTS OF
LAST RESORT IN THE RUN OF ORDINARY CASES."  TEXTILE MILLS CORP. V.
COMMISSIONER, 314 U.S., AT 334-335.  "THE PRINCIPAL UTILITY OF
DETERMINATIONS BY THE COURTS OF APPEALS IN BANC IS TO ENABLE THE COURT
TO MAINTAIN ITS INTEGRITY AS AN INSTITUTION BY MAKING IT POSSIBLE FOR A
MAJORITY OF ITS JUDGES ALWAYS TO CONTROL AND THEREBY TO SECURE
UNIFORMITY AND CONTINUITY IN ITS DECISIONS, WHILE ENABLING THE COURT AT
THE SAME TIME TO FOLLOW THE EFFICIENT AND TIME-SAVING PROCEDURE OF
HAVING PANELS OF THREE JUDGES HEAR AND DECIDE THE VAST MAJORITY OF
CASES AS TO WHICH NO DIVISION EXISTS WITHIN THE COURT."  MARIS, HEARING
AND REHEARING CASES IN BANC, 14 F.R.D. 91, AT 96 (1954).  AS JUDGE
CLARK PUT IT IN THE PRESENT CASE, THE EVIDENT POLICY OF THE STATUTE WAS
TO PROVIDE "THAT THE ACTIVE CIRCUIT JUDGES SHALL DETERMINE THE MAJOR
DOCTRINAL TRENDS OF THE FUTURE FOR THEIR COURT  ...  ."  265 F.2D, AT
155. 

PERSUASIVE ARGUMENTS COULD BE ADVANCED THAT AN EXCEPTION SHOULD BE
MADE TO PERMIT A RETIRED CIRCUIT JUDGE TO PARTICIPATE IN EN BANC
DETERMINATION OF CASES WHERE, AS HERE, HE TOOK PART IN THE ORIGINAL
THREE-JUDGE HEARING, OR WHERE, AS HERE, HE HAD NOT YET RETIRED WHEN THE
EN BANC HEARING WAS ORIGINALLY ORDERED.  INDEED, THE JUDICIAL
CONFERENCE OF THE UNITED STATES HAS APPROVED SUGGESTED LEGISLATIVE
CHANGES THAT WOULD PROVIDE SUCH AN EXCEPTION, AND A BILL TO AMEND THE
STATUTE HAS BEEN INTRODUCED IN THE CONGRESS.  (FN7)  BUT THIS ONLY
SERVES TO EMPHASIZE THAT IF THE STATUTE IS TO BE CHANGED, IT IS FOR
CONGRESS, NOT FOR US, TO CHANGE IT. 

WE CONCLUDE FOR THESE REASONS THAT UNDER EXISTING LEGISLATION A
RETIRED CIRCUIT JUDGE IS WITHOUT POWER TO PARTICIPATE IN AN EN BANC
COURT OF APPEALS DETERMINATION AND ACCORDINGLY THAT THE JUDGMENT MUST
BE SET ASIDE.  AMERICAN CONSTRUCTION CO. V. JACKSONVILLE, T.&K.W.R.
CO., 148 U.S. 372, 387; FRAD V. KELLY, 302 U.S. 312, 316-319.  IN
REACHING THIS CONCLUSION WE INTIMATE NO VIEW AS TO THE MERITS OF THE
UNDERLYING LITIGATION.  THE JUDGMENT IS VACATED, AND THE CASE REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  VACATED AND
REMANDED. 

FN1  141 F. SUPP. 58.  TWO OF THE LIBELS WERE DISMISSED UPON THE SAME
GROUND BY ANOTHER DISTRICT JUDGE IN AN OPINION WHICH IS UNREPORTED. 

FN2  "ANY JUSTICE OR JUDGE OF THE UNITED STATES APPOINTED TO HOLD
OFFICE DURING GOOD BEHAVIOR MAY RETAIN HIS OFFICE BUT RETIRE FROM
REGULAR ACTIVE SERVICE AFTER ATTAINING THE AGE OF SEVENTY YEARS AND
AFTER SERVING AT LEAST TEN YEARS CONTINUOUSLY OR OTHERWISE, OR AFTER
ATTAINING THE AGE OF SIXTY-FIVE YEARS AND AFTER SERVING AT LEAST
FIFTEEN YEARS CONTINUOUSLY OR OTHERWISE." 

FN3  JUDGE LUMBARD DID NOT PARTICIPATE BECAUSE OF A PRIOR CONNECTION
WITH THE LITIGATION AS UNITED STATES ATTORNEY. 

FN4  IN ACCORD WITH THIS FLEXIBLE STATUTORY SCHEME, RETIRED FEDERAL
JUDGES THE COUNTRY OVER HAVE RENDERED DEVOTED SERVICE IN THE TRIAL AND
APPELLATE COURTS OF THE UNITED STATES, VOLUNTARILY AND WITHOUT ECONOMIC
INCENTIVE OF ANY KIND. 

FN5  AN ENLIGHTENING DISCUSSION BY JUDGE MARIS OF THE THOROUGH
ADMINISTRATIVE MACHINERY WORKED OUT BY THE COURT OF APPEALS FOR THE
THIRD CIRCUIT APPEARS IN 14 F.R.D. 91. 

FN6  IT IS WORTH NOTING THAT THE TEXTILE MILLS OPINION ITSELF
CAREFULLY DISTINGUISHED BETWEEN CIRCUIT JUDGES IN ACTIVE SERVICE AND
THOSE WHO HAVE RETIRED.  314 U.S., AT 327. 

FN7  AT ITS ANNUAL MEETING IN SEPTEMBER, 1959, THE JUDICIAL
CONFERENCE OF THE UNITED STATES RECEIVED A JOINT REPORT OF ITS
COMMITTEES ON COURT ADMINISTRATION AND REVISION OF THE LAWS, STATING
THEIR VIEW THAT UNDER THE PRESENT LAW RETIRED JUDGES ARE NOT ELIGIBLE
TO PARTICIPATE IN EN BANC PROCEEDINGS.  "HOWEVER, THE COMMITTEES
THOUGHT IT PROPER TO PERMIT A RETIRED CIRCUIT JUDGE TO BE A MEMBER OF
THE COURT OF APPEALS SITTING IN BANC IN THE REHEARING OF A CASE IN
WHICH HE HAS SAT, BY ASSIGNMENT, IN THE PANEL OF THE COURT WHICH HEARD
THE CASE ORIGINALLY."  THE CONFERENCE AGREED AND APPROVED A DRAFT OF A
BILL PRESENTED BY THE COMMITTEES, WHICH WOULD ADD THE FOLLOWING
SENTENCE TO 28 U.S.C. SEC. 46(C):  "A CIRCUIT JUDGE OF THE CIRCUIT WHO
HAS RETIRED FROM REGULAR ACTIVE SERVICE SHALL ALSO BE COMPETENT TO SIT
AS A JUDGE OF THE COURT IN BANC IN THE REHEARING OF A CASE OR
CONTROVERSY IF HE SAT IN THE COURT OR DIVISION AT THE ORIGINAL HEARING
THEREOF."  ANNUAL REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES (1959), PP. 9-10.  A BILL TO EFFECT THIS CHANGE
WAS INTRODUCED IN THE HOUSE OF REPRESENTATIVES BY REPRESENTATIVE CELLER
ON APRIL 5, 1960, AS H.R. 11567, 86TH CONG., 2D SESS. 106 CONG. REC.
6865. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

I CAN FIND NOTHING IN 28 U.S.C. SEC. 46(C) WHICH REQUIRES THE
DECISION THE COURT HAS MADE, AND NOTHING IN THE DECISION WHICH COMMENDS
ITSELF TO CONSIDERATIONS OF SOUND JUDICIAL ADMINISTRATION.  FOR
CONVENIENCE I AGAIN QUOTE SEC. 46(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." 

THE STATUTE NEED HARDLY BE READ, AS THE COURT NOW HOLDS IT SHOULD BE,
AS SAYING THAT A CASE IN AN EN BANC COURT SHALL BE "HEARD AND
DETERMINED" BY THE ACTIVE CIRCUIT JUDGES; STILL LESS DOES IT SAY THAT A
CASE IS NOT "DETERMINED" UNTIL THE DECISION OF IT IS ANNOUNCED.  THE
STATUTE SAYS NO MORE THAN THAT ORDINARILY LAWSUITS BEFORE THE COURTS OF
APPEALS ARE TO BE "HEARD AND DETERMINED" BEFORE A PANEL OF NOT MORE
THAN THREE JUDGES, BUT THAT A MAJORITY OF THE JUDGES IN ACTIVE SERVICE
MAY ORDER THAT A CASE BE SET FOR "HEARING OR REHEARING" BEFORE A COURT
CONSISTING OF ALL THE ACTIVE CIRCUIT JUDGES OF THE CIRCUIT SITTING EN
BANC.    THE "HEARD AND DETERMINED" CLAUSE ON WHICH THE COURT RELIES
APPEARS IN A SENTENCE WHOSE PURPOSES WERE SIMPLY TO CODIFY THE DOCTRINE
THAT A COURT OF APPEALS HAD POWER TO SIT EN BANC, TEXTILE MILLS CORP.
V. COMMISSIONER, 314 U.S. 326, WHILE MAKING CLEAR THAT THE USUAL
PROCEDURE WAS TO BE DECISION BY A THREE-JUDGE PANEL.  (FN1)  IT IS NOT
AN UNKNOWN PHENOMENON IN FEDERAL ADJUDICATION THAT A CASE, THOUGH HEARD
BY LESS THAN THE ENTIRE TRIBUNAL, MAY BE DECIDED ACCORDING TO THE
MAJORITY VOTE OF ALL.   CF. I.R.C., SEC. 7460; SEE 2 CASEY, FEDERAL TAX
PRACTICE, 274-280.  THE TRADITIONAL TERM, "HEARD AND DETERMINED," IN MY
VIEW WAS DESIGNED TO DO NO MORE THAN REFLECT THE OBVIOUS
INAPPROPRIATENESS OF SUCH A PROCEDURE TO THE DELIBERATIONS OF THE COURT
OF APPEALS.  THERE IS NO NECESSITY FOR FINDING IN THAT TERM, IN LIGHT
OF THE CONTEXT IN WHICH IT APPEARS, ANY CONGRESSIONAL DIRECTION
REGARDING THE CONSTITUTION OF AN EN BANC COURT. 

THE REQUIREMENTS GOVERNING THE COMPOSITION OF AN EN BANC COURT ARE
FOUND IN THE LAST SENTENCE OF SEC. 46(C).  ALL IT PROVIDES IS THAT SUCH
A COURT SHALL NOT INCLUDE RETIRED CIRCUIT JUDGES.  THE REASON FOR SUCH
A PROVISION IS NOT HARD TO DISCERN.  CONGRESS WOULD HARDLY HAVE
REQUIRED A RETIRED CIRCUIT JUDGE TO RETURN TO THE BENCH TO ATTEND AT AN
EN BANC HEARING AND, AS BETWEEN LEAVING THE MATTER TO THE DISCRETION OF
THE INDIVIDUAL JUDGE AND LIMITING THE COURT TO ACTIVE JUDGES, IT IS NOT
SURPRISING - IN VIEW OF THE VARYING DEGREES OF JUDICIAL ACTIVITY OF THE
RETIRED JUDGES, AND THE ADMINISTRATIVE UNDESIRABILITY OF HAVING, FOR
THESE PURPOSES, A COURT OF UNPREDICTABLE SIZE AND COMPLEMENT - THAT
CONGRESS SHOULD HAVE CHOSEN THE LATTER COURSE. 

THE LANGUAGE AND CONTEXT, THEN, OF SEC. 46(C) ARE GIVEN FULL EFFECT
BY HOLDING, AS I WOULD, THAT THE STATUTE REQUIRES NO MORE THAN THAT THE
MEMBERS OF AN EN BANC COURT BE IN ACTIVE STATUS AT THE TIME THE CASE IS
ARGUED OR SUBMITTED.  SUCH A CONSTRUCTION, FOR A COURT WHICH DECIDED
THE TEXTILE MILLS CASE, SUPRA, SHOULD NOT BE DIFFICULT TO REACH.  THE
ISSUE THERE WAS WHETHER THE PREDECESSOR OF SEC. 46(C), CONFERRING
APPELLATE JURISDICTION ON CIRCUIT COURTS CONSISTING OF THREE JUDGES,
PREVENTED ADJUDICATION BY A CIRCUIT COURT COMPOSED OF FIVE JUDGES,
CONSTITUTING ALL THE ACTIVE CIRCUIT JUDGES OF THE PARTICULAR CIRCUIT
THERE INVOLVED.  IN HOLDING THAT IT DID NOT, THE COURT, MAKING A WISE
"SACRIFICE OF LITERALNESS FOR COMMON SENSE," 314 U.S., AT 334, FOUND NO
DIFFICULTY IN RISING ABOVE THE ARITHMETIC OF THE PREDECESSOR OF SEC.
46(C) SO AS TO ACHIEVE A SENSIBLE RESULT.  STILL LESS SHOULD THERE BE
DIFFICULTY HERE IN ACCOMMODATING SEC. 46(C) TO THE NEEDS OF SOUND
JUDICIAL ADMINISTRATION.  SO CONSTRUED, THE STATUTE WAS COMPLIED WITH
HERE.  (FN2) 

BUT EVEN WERE I TO ACCEPT THE COURT'S PREMISES - A READING INTO THE
EN BANC PROCEDURE OF A REQUIREMENT THAT ONLY ACTIVE JUDGES MAY
PARTICIPATE IN THE "DETERMINATION" OF SUCH CASES, AND A VIEW OF SEC.
46(C) AS EXPRESSING A CONGRESSIONAL POLICY AGAINST PARTICIPATION BY
RETIRED JUDGES IN DECISIONS SETTING THE "MAJOR DOCTRINAL TRENDS" OF A
COURT - I COULD NOT AGREE THAT THEY JUSTIFY THIS DECISION.  CHOICE OF
THE DATE OF ANNOUNCEMENT OF A DECISION AS THE DATE OF "DETERMINATION"
OF THE CAUSE MAY PROVIDE A TOUCHSTONE WHICH A DISAPPOINTED LITIGANT
SEARCHING FOR GROUNDS FOR REVERSAL CAN EASILY APPLY.  HOWEVER, IT SEEMS
A SINGULARLY INFELICITOUS CONSTRUCTION OF THIS PARTICULAR LEGISLATIVE
LANGUAGE.  (FN3)  "LAWS ARE NOT ABSTRACT PROPOSITIONS.  THEY ARE
EXPRESSIONS OF POLICY ARISING OUT OF SPECIFIC SITUATIONS AND ADDRESSED
TO THE ATTAINMENT OF PARTICULAR ENDS."  FRANKFURTER, SOME REFLECTIONS
ON THE READING OF STATUTES, 47 COL. L. REV. 527, 533.  THE EXACT POINT
OF TIME WHEN A CASE IS "DETERMINED" IS, AS ALL INFORMED LAWYERS KNOW, A
QUESTION WHOSE ANSWER VARIES FROM CASE TO CASE, AND WHICH IS KNOWN IN A
PARTICULAR INSTANCE ONLY TO THE JUDGES THEMSELVES.  CERTAINLY, IF AN
OPINION - ALL ARGUMENT, REFLECTION, DELIBERATION, AND EXPLICATION
HAVING BEEN COMPLETED BY A COURT COMPOSED OF ACTIVE JUDGES ONLY - IS
FILED WITH THE CLERK OF THE COURT ON THE MORNING FOLLOWING THE
RETIREMENT OF ONE OF ITS MEMBERS, NO POLICY REMOTELY DISCERNIBLE IN
SEC. 46(C) CAN JUSTIFY A REQUIREMENT THAT HIS VOTE IN THE CASE SHOULD
NOT BE COUNTED.  IF ANY SUCH POLICY CAN BE THOUGHT TO BE REFLECTED IN
THE EN BANC STATUTE, IT SHOULD NOT BE TAKEN AS REQUIRING MORE THAN THAT
A JUDGE, WHOSE RETIREMENT COMES AT A TIME WHEN MEANINGFUL THINGS IN THE
PROCESS OF ADJUDICATION STILL REMAIN TO BE DONE, MUST WITHDRAW FROM
FURTHER PARTICIPATION.  BUT WHERE SUCH IS NOT THE CASE, THE STATUTE
SHOULD NOT BE THOUGHT TO REQUIRE A PRECIPITOUS TERMINATION OF JUDICIAL
AFFAIRS AND THE UNDOING OF ADJUDICATIONS PROPERLY MADE.  IN THE NATURE
OF THINGS THE EFFECTUATION OF SUCH A POLICY SHOULD BE LEFT WITH THE
VARIOUS COURTS OF APPEALS, IF INDEED NOT TO THE CONSCIENCE AND GOOD
TASTE OF THE PARTICULAR CIRCUIT JUDGE CONCERNED, AS IN MOST INSTANCES
OF INDIVIDUAL DISQUALIFICATION FOR OTHER REASONS.  CF. 28 U.S.C. SEC.
455. 

IT IS NOT A GROUND FOR OBJECTION THAT SUCH A CONSTRUCTION WOULD
PROVIDE NO TEST WHICH AN OUTSIDER, WHETHER LITIGANT OR REVIEWING COURT,
COULD APPLY.  (FN4)  AS THIS COURT HAS OBSERVED:  "IN OUR VIEW, SEC.
46(C) IS NOT ADDRESSED TO LITIGANTS.  IT IS ADDRESSED TO THE COURT OF
APPEALS."  WESTERN PACIFIC RAILROAD CASE, 345 U.S. 247, 250.  ON ITS
VIEW OF THE STATUTE THE COURT SHOULD NOT HAVE HESITATED TO ADOPT THAT
CONSTRUCTION OF THE "HEARD AND DETERMINED" CLAUSE WHICH MOST FAITHFULLY
REFLECTS ITS PURPOSE MERELY BECAUSE THOSE WITH WHOM THE STATUTE IS NOT
CONCERNED ARE THEREBY HAMPERED IN VOICING THEIR OWN OBJECTIONS. 

INDEED, WHILE I NEED EXPRESS NO DEFINITE VIEW ON THE QUESTION, SINCE
I REGARD THE CLAIM OF NONCOMPLIANCE WITH SEC. 46(C) AS UNTENABLE, I
MUST SAY THAT THE COURT'S OPINION PRESENTS NO SUBSTANTIAL REASON FOR
PERMITTING A LITIGANT TO OVERTURN A JUDGMENT OF THE COURT OF APPEALS
THROUGH THIS SORT OF COLLATERAL ATTACK ON THE COMPETENCE OF ONE OF ITS
MEMBERS TO SIT.  HAD JUDGE MEDINA FOUND IN SEC. 46(C), AS THE COURT
HOLDS HE SHOULD HAVE FOUND, A STATUTORY DIRECTION TO WITHDRAW FROM
FURTHER PARTICIPATION IN THIS LAWSUIT, PETITIONER AND NOT RESPONDENTS
WOULD HAVE PREVAILED ON THE APPEAL, SINCE THAT WOULD HAVE RESULTED IN
THE AFFIRMANCE, BY AN EQUALLY DIVIDED COURT OF APPEALS, OF THE DISTRICT
COURT'S JUDGMENT IN FAVOR OF THE GOVERNMENT.  OF COURSE, TO A LITIGANT,
THERE IS NO GREATER INJURY THAN TO LOSE A CASE, BUT I HAVE DIFFICULTY
UNDERSTANDING JUST WHAT LEGAL ERROR HAS BEEN COMMITTED AGAINST
PETITIONER, SUCH AS TO WARRANT VACATION BY THIS COURT OF THE JUDGMENT
BELOW, THUS GIVING THE GOVERNMENT AN OPPORTUNITY TO RETRIEVE ITS
ORIGINAL LOSS IN THE EN BANC COURT OF APPEALS.  CLEARLY, JUDGE MEDINA
WAS NOT A MERE INTERLOPER, OR A USURPER.  HE WAS, AND IS, A CIRCUIT
JUDGE OF THE UNITED STATES, BEARING A COMMISSION SIGNED BY THE
PRESIDENT.  ABSTRACTIONS ABOUT "COMPETENCE" ONLY BECLOUD THE MATTER. 
ALL THAT HAS HAPPENED IS THAT JUDGE MEDINA HAS EXERCISED THE RIGHT
CONFERRED BY CONGRESS (28 U.S.C. SEC.  371(B)) TO RETIRE FROM ACTIVE
SERVICE.  NOTHING IN THAT ACTION, OR IN WHAT THE COURT HAS SAID
CONCERNING THE SCOPE OF SEC. 46(C), RENDERS THE JUDGMENT OF THE COURT
BELOW VULNERABLE TO ATTACK.  THE CASES CITED BY THE COURT DEALT WITH
DISQUALIFICATIONS BASED ON POLICY GROUNDS THE EFFECTUATION OF WHICH
CALLED FOR A VACATION OF THE JUDGMENTS RENDERED THERE.  (FN5)  NO
REASON HAS BEEN GIVEN WHY THAT IS SO HERE. 

I WOULD AFFIRM. 

FN1  THE REVISER'S NOTE TO SEC. 46 SHOWS THIS TO BE TRUE.  "THIS
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." 

FN2  THE ORDER GRANTING THE RESPONDENTS' PETITION FOR REHEARING EN
BANC REQUIRED THAT THE CASE BE SUBMITTED ON WRITTEN BRIEFS, TO BE FILED
BY JAN. 8, 1958.  JUDGE MEDINA RETIRED ON MAR. 1, 1958.  THE ACTION OF
THE JUDICIAL CONFERENCE IN 1959, TO WHICH THE COURT REFERS (ANTE, P.
690, NOTE 7), DOES NOT OF COURSE BEAR UPON THE NARROW ISSUE BEFORE US.
THAT ACTION WAS BROADLY DIRECTED TO PERMITTING RETIRED CIRCUIT JUDGES
TO SIT ON EN BANC COURTS IN INSTANCES WHERE THEY HAD SAT ON THE PANEL
ORIGINALLY DECIDING THE CASE.  INDEED, THE RECOMMENDATION OF THE
JUDICIAL CONFERENCE GOES FAR TO DILUTE THE FORCE OF THE COURT'S
ATTRIBUTION TO CONGRESS OF A DESIGN TO LEAVE IN THE HANDS OF ACTIVE
CIRCUIT JUDGES ALONE THE SETTING OF THE "MAJOR DOCTRINAL TRENDS" OF
THEIR COURTS. 

FN3  IN CONSTRUING A STATUTE FAR MORE AMENABLE TO A TECHNICAL
APPROACH, WE RECENTLY REJECTED AN ANALOGOUS CONSTRUCTION OF THE WORD
"DETERMINED."  UNITED STATES V. PRICE, 361 U.S. 304, 307. 

FN4  IN THIS CASE, ONE CANNOT SAY THAT SUCH A STANDARD WAS NOT
FOLLOWED.  ALTHOUGH THE DECISION WAS NOT ANNOUNCED UNTIL NEARLY FIVE
MONTHS AFTER HIS RETIREMENT (265 F.2D 136, 144), JUDGE MEDINA HAD SAT
ON THE PANEL WHICH ORIGINALLY HEARD THE CASE, AND THE BRIEFS ON
REARGUMENT WERE SUBMITTED ALMOST THREE MONTHS PRIOR TO HIS RETIREMENT. 
HE DID NOT WRITE AN OPINION IN THE CASE. 

FN5  IN FRAD V. KELLY, 302 U.S. 312, A MOTION FOR DISCHARGE FROM
PROBATION WAS ENTERTAINED AND GRANTED BY A JUDGE NOT OF THE DISTRICT
WHERE SENTENCE HAD BEEN IMPOSED.  THE EVIDENT PURPOSE OF THE STATUTE
LIMITING CONSIDERATION OF SUCH MATTERS TO JUDGES OF THE SENTENCING
COURT WAS TO PERMIT THOSE JUDGES TO DEVELOP AN INTEGRATED POLICY
GOVERNING PROBATION.  ID., AT 318.  TO GIVE EFFECT TO THAT POLICY, THE
ORDER OF DISCHARGE WAS VACATED.  THE DICTUM IN AMERICAN CONSTRUCTION
CO. V. JACKSONVILLE, T.&K.W.R. CO., 148 U.S. 372, 387, CONCERNED A
VIOLATION BY A JUDGE OF THE REQUIREMENT THAT HE NOT SIT ON AN APPEAL
FROM A JUDGMENT OR ORDER WHICH HE HAD ENTERED.  IT HARDLY NEEDS
ELUCIDATION TO RECOGNIZE THAT DISREGARD OF SUCH A POLICY INFECTS THE
JUDGMENT RENDERED. 
..END :

















HUDSON V. NORTH CAROLINA 363 U.S. 697 


NO. 466.  ARGUED MAY 16, 1960.  - DECIDED JUNE 20, 1960.  - REVERSED. 


PETITIONER AND TWO OTHERS WERE TRIED BEFORE A JURY IN A NORTH CAROLINA
STATE COURT ON AN INDICTMENT JOINTLY CHARGING THEM WITH ROBBERY. 
PETITIONER, WHO WAS 18 YEARS OLD, ASKED THE JUDGE TO APPOINT A LAWYER
TO HELP HIM IN HIS DEFENSE, STATING THAT HE WAS WITHOUT FUNDS TO EMPLOY
COUNSEL AND WAS INCAPABLE OF DEFENDING HIMSELF; BUT THIS REQUEST WAS
DENIED.  COUNSEL FOR ONE OF PETITIONER'S CODEFENDANTS VOLUNTEERED TO
HELP PETITIONER AND THE THIRD DEFENDANT; BUT, IN THE MIDST OF THE TRIAL
AND IN THE PRESENCE OF THE JURY, HIS CLIENT PLEADED GUILTY TO PETIT
LARCENY, THAT PLEA WAS ACCEPTED, AND THE LAWYER WITHDREW FROM THE
PROCEEDINGS.  NO STEPS WERE TAKEN TO PROTECT PETITIONER FROM THE
POTENTIAL PREJUDICE RESULTING FROM THE GUILTY PLEA OF HIS CODEFENDANT
IN THE PRESENCE OF THE JURY, AND PETITIONER AND HIS OTHER CODEFENDANT
WERE CONVICTED OF LARCENY FROM THE PERSON, A FELONY UNDER NORTH
CAROLINA LAW.  HELD:  THE PREJUDICIAL POSITION IN WHICH PETITIONER
FOUND HIMSELF WHEN HIS CODEFENDANT PLEADED GUILTY BEFORE THE JURY
RAISED PROBLEMS REQUIRING PROFESSIONAL KNOWLEDGE AND EXPERIENCE BEYOND
A LAYMAN'S KEN, AND PETITIONER'S CONVICTION IN THESE CIRCUMSTANCES
WITHOUT THE BENEFIT OF COUNSEL DEPRIVED HIM OF THE DUE PROCESS OF LAW
GUARANTEED BY THE FOURTEENTH AMENDMENT.  PP. 697-704. 

HUDSON V. NORTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER AND TWO OTHERS WERE BROUGHT TO TRIAL BEFORE A JURY IN
THE SUPERIOR COURT OF CUMBERLAND COUNTY, NORTH CAROLINA, UPON AN
INDICTMENT JOINTLY CHARGING THEM WITH ROBBERY.  WHEN THEIR CASE WAS
CALLED ONE OF THE DEFENDANTS, DAVID CAIN, WAS REPRESENTED BY A LAWYER
OF HIS OWN SELECTION.  THE PETITIONER AND THE OTHER DEFENDANT DID NOT
HAVE COUNSEL.  BEFORE PLEADING TO THE INDICTMENT, THE PETITIONER, WHO
WAS EIGHTEEN YEARS OLD, ASKED THE PRESIDING JUDGE TO APPOINT A LAWYER
TO HELP HIM WITH HIS DEFENSE, STATING THAT HE WAS WITHOUT FUNDS TO
EMPLOY COUNSEL AND WAS INCAPABLE OF DEFENDING HIMSELF.  (FN1)  THE
PROSECUTOR CONCEDED THAT THE PETITIONER WAS UNABLE TO EMPLOY AN
ATTORNEY.  (FN2)  THE TRIAL JUDGE DENIED THE MOTION, TELLING THE
PETITIONER THAT "THE COURT WILL TRY TO SEE THAT YOUR RIGHTS ARE
PROTECTED THROUGHOUT THE CASE." 

ALL THREE OF THE DEFENDANTS THEREUPON PLEADED NOT GUILTY, AND THE
CASE PROCEEDED IMMEDIATELY TO TRIAL.  THE FIRST WITNESS FOR THE STATE
WAS THE ALLEGED VICTIM OF THE ROBBERY.  MIDWAY THROUGH THIS WITNESS'S
TESTIMONY CAIN'S LAWYER OFFERED TO REPRESENT ALL THREE CODEFENDANTS "AS
LONG AS THEIR INTERESTS DON'T CONFLICT."  AT THE CONCLUSION OF THE
WITNESS'S DIRECT TESTIMONY THE TRIAL JUDGE ADVISED THE LAWYER THAT HE
SHOULD CROSS-EXAMINE ONLY ON BEHALF OF CAIN, BECAUSE "I THINK YOU
PROBABLY HAVE A CONFLICTING INTEREST THERE."  THEREAFTER THE WITNESS
WAS CROSS-EXAMINED INTENSELY BY CAIN'S LAWYER, WHO BROUGHT OUT THE
WITNESS'S CRIMINAL RECORD AND PREVIOUS COMMITMENT TO A STATE MENTAL
INSTITUTION.  THE PETITIONER AND THE OTHER CODEFENDANT ALSO BRIEFLY
CROSS-EXAMINED THE WITNESS.  THE ONLY OTHER WITNESSES FOR THE
PROSECUTION WERE TWO DEPUTY SHERIFFS, WHO TESTIFIED AS TO STATEMENTS
MADE TO THEM BY THE DEFENDANTS.  THEY WERE CROSS-EXAMINED BY THE
LAWYER, BUT NOT BY THE TWO DEFENDANTS WITHOUT COUNSEL. 

AT THE CONCLUSION OF THE STATE'S EVIDENCE, CAIN'S LAWYER MOVED THAT
THE CASE BE DISMISSED.  WHEN THIS MOTION WAS DENIED HE STATED THAT CAIN
HAD NO EVIDENCE TO OFFER.  THEREUPON, IN THE PRESENCE OF THE JURY, HE
TENDERED ON BEHALF OF CAIN A PLEA OF GUILTY TO PETIT LARCENY.  THIS
PLEA WAS AGREED TO BY THE PROSECUTOR AND ACCEPTED BY THE COURT.  THE
LAWYER THEN WITHDREW FROM THE PROCEEDINGS. 

THE TRIAL PROCEEDED.  THE PETITIONER AND HIS REMAINING CODEFENDANT
EACH TOOK THE STAND.  EACH MADE A STATEMENT DENYING THE ROBBERY.  THE
PETITIONER WAS CROSS-EXAMINED AT SOME LENGTH, WITH EMPHASIS UPON HIS
PREVIOUS CRIMINAL RECORD.  NEITHER THE PETITIONER NOR HIS CODEFENDANT
PRODUCED ANY OTHER WITNESSES OR OFFERED ANY FURTHER EVIDENCE.  THEY
WERE GIVEN AN OPPORTUNITY TO ARGUE THEIR CASE TO THE JURY, BUT DID NOT
DO SO. 

THE JURY FOUND BOTH DEFENDANTS GUILTY OF LARCENY FROM THE PERSON, A
FELONY UNDER NORTH CAROLINA LAW, AND THE FOLLOWING DAY THE TRIAL JUDGE
PRONOUNCED SENTENCE.  THE PETITIONER WAS COMMITTED TO THE PENITENTIARY
FOR A TERM OF THREE TO FIVE YEARS.  THE CODEFENDANT CONVICTED WITH HIM
WAS SENTENCED TO A JAIL TERM OF EIGHTEEN MONTHS TO TWO YEARS.  CAIN WAS
GIVEN A SIX MONTHS' SUSPENDED SENTENCE. 

THE PETITIONER'S SUBSEQUENT APPEAL TO THE SUPREME COURT OF NORTH
CAROLINA WAS DISMISSED FOR WANT OF PROSECUTION.  THEREAFTER HE FILED IN
THE TRIAL COURT A "PETITION FOR WRIT OF CERTIORARI," WHICH URGED THAT
THE FAILURE OF THE TRIAL COURT TO PROVIDE HIM WITH COUNSEL HAD DEPRIVED
HIM OF HIS CONSTITUTIONAL RIGHTS.  THIS PETITION WAS TREATED AS AN
APPLICATION FOR RELIEF UNDER THE NORTH CAROLINA POST-CONVICTION HEARING
ACT.  (FN3)  IN THE SUBSEQUENT PROCEEDINGS THE COURT APPOINTED A LAWYER
TO REPRESENT THE PETITIONER, (FN4) AND HELD A HEARING AT WHICH THE
PETITIONER AND HIS COUNSEL WERE PRESENT.  AFTER CONSIDERING THE
EVIDENCE PRESENTED, INCLUDING A TRANSCRIPT OF THE TRIAL PROCEEDINGS,
(FN5) THE COURT CONCLUDED THAT NO SPECIAL CIRCUMSTANCES WERE SHOWN
WHICH REQUIRED THE APPOINTMENT OF TRIAL COUNSEL, THAT THE PETITIONER
HAD BEEN CONVICTED ONLY AFTER A FAIR AND IMPARTIAL TRIAL, AND THAT
THERE HAD CONSEQUENTLY BEEN NO DENIAL OF DUE PROCESS OF LAW.  THE
PETITION WAS ACCORDINGLY DISMISSED.  (FN6)  THE SUPREME COURT OF NORTH
CAROLINA DECLINED TO REVIEW THE ORDER OF DISMISSAL.  WE GRANTED
CERTIORARI TO CONSIDER THE SUBSTANTIAL CONSTITUTIONAL CLAIM ASSERTED. 
361 U.S. 812. 

THE JUDGE WHO PRESIDED AT THE POST-CONVICTION PROCEEDINGS MADE
DETAILED FINDINGS OF FACT.  HE FOUND THAT THE TRIAL JUDGE HAD "ADVISED
THE PETITIONER OF HIS RIGHT TO CHALLENGE WHEN THE JURY WAS SELECTED AND
ADVISED THE PETITIONER OF HIS RIGHT TO CROSS EXAMINE WITNESSES AND TO
ARGUE THE CASE TO THE JURY."  HE ALSO FOUND THAT "DURING THE TRIAL THE
COURT PROPERLY EXCLUDED EVIDENCE WHICH WAS INADMISSIBLE, AND THE
PETITIONER CROSS EXAMINED THE WITNESSES AGAINST HIM AND AT HIS REQUEST
TESTIFIED IN HIS OWN BEHALF." 

IN THIS COURT COUNSEL FOR THE PETITIONER DOES NOT TAKE ISSUE WITH
THESE FINDINGS.  COUNSEL'S PRIMARY EMPHASIS RATHER IS UPON THE
PETITIONER'S COMPARATIVE YOUTH, RELYING UPON WADE V. MAYO, 334 U.S.
672.  IN THAT CASE IT WAS HELD THAT THE DENIAL OF A LAWYER'S HELP HAD
RESULTED IN THE DEPRIVATION OF DUE PROCESS WHERE THE FEDERAL DISTRICT
COURT AFTER A HABEAS CORPUS HEARING HAD FOUND THAT THE EIGHTEEN-YEAR
OLD DEFENDANT WAS "AN INEXPERIENCED YOUTH UNFAMILIAR WITH COURT
PROCEDURE, AND NOT CAPABLE OF ADEQUATELY REPRESENTING HIMSELF."  334
U.S., AT 683.  HERE, BY CONTRAST, THE POST-CONVICTION COURT FOUND THAT
"ALTHOUGH THE PETITIONER WAS ONLY EIGHTEEN YEARS OF AGE AND HAD BEEN
ONLY TO THE SIXTH GRADE IN SCHOOL AT THE TIME OF HIS TRIAL, HE IS
INTELLIGENT, WELL INFORMED, AND WAS FAMILIAR WITH AND EXPERIENCED IN
COURT PROCEDURE AND CRIMINAL TRIALS  ...  ."  EVALUATIONS OF THIS
NATURE ARE PECULIARLY WITHIN THE PROVINCE OF THE TRIER OF THE FACTS
BASED UPON PERSONAL OBSERVATION.  AS THE COURT POINTED OUT IN WADE V.
MAYO, "THERE ARE SOME INDIVIDUALS WHO, BY REASON OF AGE, IGNORANCE OR
MENTAL CAPACITY, ARE INCAPABLE OF REPRESENTING THEMSELVES ADEQUATELY IN
A PROSECUTION OF A RELATIVELY SIMPLE NATURE.  THIS INCAPACITY IS PURELY
PERSONAL AND CAN BE DETERMINED ONLY BY AN EXAMINATION AND OBSERVATION
OF THE INDIVIDUAL."  334 U.S., AT 684. 

IN VIEW OF THE FINDINGS OF THE POST-CONVICTION COURT, SUPPORTED BY
THE RECORD OF THE TRIAL PROCEEDINGS, THIS, IN SHORT, IS NOT A CASE
WHERE IT CAN BE SAID THAT THE FAILURE TO APPOINT COUNSEL FOR THE
DEFENDANT RESULTED IN A CONSTITUTIONALLY UNFAIR TRIAL EITHER BECAUSE OF
DELIBERATE OVERREACHING BY COURT OR PROSECUTOR OR SIMPLY BECAUSE OF THE
DEFENDANT'S CHRONOLOGICAL AGE.  MOREOVER, THE RECORD SHOWS THAT UP TO
THE TIME THAT CAIN'S LAWYER WITHDREW FROM THE PROCEEDINGS THE
PETITIONER WAS RECEIVING THE EFFECTIVE BENEFIT OF THE LAWYER'S
ACTIVITY, AND HAD THE TRIAL OF ALL THREE DEFENDANTS PROCEEDED TO A JURY
VERDICT, IT IS POSSIBLE THAT THE LAWYER COULD HAVE CONTINUED TO
REPRESENT THE INTERESTS OF THE PETITIONER AS WELL AS THOSE OF THE
CLIENT WHO HAD RETAINED HIM. 

BUT THAT DID NOT HAPPEN.  INSTEAD, ON THE ADVICE OF HIS COUNSEL CAIN
ENTERED A PLEA OF GUILT IN THE PRESENCE OF THE JURY MIDWAY THROUGH THE
TRIAL.  THE POTENTIAL PREJUDICE OF SUCH AN OCCURRENCE IS OBVIOUS AND
HAS LONG BEEN RECOGNIZED BY THE COURTS OF NORTH CAROLINA.  STAT V.
HUNTER, 94 N.C. 829, 835; STATE V. BRYANT, 236 N.C. 745, 747, 73 S.E.2D
791, 792; STATE V. KERLEY, 246 N.C. 157, 97 S.E.2D 876.  YET IT WAS
PRECISELY AT THIS MOMENT OF GREAT POTENTIAL PREJUDICE THAT THE
PETITIONER AND HIS CODEFENDANT WERE LEFT ENTIRELY TO THEIR OWN DEVICES,
FOR IT WAS THEN THAT CAIN'S LAWYER WITHDREW FROM THE CASE.  AT THAT
VERY POINT THE PETITIONER AND HIS CODEFENDANT WERE LEFT TO GO IT
ALONE. 

THE PRECISE COURSE TO BE FOLLOWED BY A NORTH CAROLINA TRIAL COURT IN
ORDER TO CURE THE PREJUDICE THAT MAY RESULT FROM A CODEFENDANT'S GUILTY
PLEA DOES NOT APPEAR TO HAVE BEEN MADE ENTIRELY CLEAR BY THE NORTH
CAROLINA DECISIONS.  IN THE HUNTER CASE THE SUPREME COURT OF NORTH
CAROLINA POINTED OUT THAT WHILE NOT INFREQUENTLY A DEFENDANT ON TRIAL
WITH ANOTHER IS ALLOWED TO ENTER A PLEA OF GUILT DURING THE COURSE OF
THE TRIAL, THE COURT SHOULD EXERCISE CARE "TO SEE THAT SUCH PRACTICE
WORKS NO UNDUE PREJUDICE TO ANOTHER PARTY ON TRIAL."  94 N.C., AT 835. 
LATER CASES HAVE BEEN SOMEWHAT MORE EXPLICIT.  IN THE BRYANT CASE
CURATIVE INSTRUCTIONS TO THE JURY GIVEN IMMEDIATELY AFTER A
CODEFENDANT'S GUILTY PLEA WERE HELD SUFFICIENT TO AVOID ERROR
PREJUDICIAL TO THE REMAINING DEFENDANT.  236 N.C., AT 747-748, 73
S.E.2D, AT 792.  MORE RECENTLY, IN THE KERLEY CASE, THE COURT SAID THAT
"WHEN REQUEST THEREFOR IS MADE, IT IS THE DUTY OF THE TRIAL JUDGE TO
INSTRUCT THE JURY THAT A CODEFENDANT'S PLEA OF GUILTY IS NOT TO BE
CONSIDERED AS EVIDENCE BEARING UPON THE GUILT OF THE DEFENDANT THEN ON
TRIAL AND THAT THE LATTER'S GUILT MUST BE DETERMINED SOLELY ON THE
BASIS OF THE EVIDENCE AGAINST HIM AND WITHOUT REFERENCE TO THE
CODEFENDANT'S PLEA."  246 N.C., AT 161; 97 S.E.2D, AT 879.  INDEED, THE
COURT EXPRESSED THE VIEW THAT EVEN "A POSITIVE INSTRUCTION PROBABLY
WOULD NOT HAVE REMOVED ENTIRELY THE SUBTLE PREJUDICE THAT UNAVOIDABLY
RESULTED FROM A CODEFENDANT'S PLEA  ... ."  246 N.C., AT 162; 97
S.E.2D, AT 880. 

IN THE PRESENT CASE THE PETITIONER DID NOT MAKE ANY REQUEST THAT THE
JURY BE INSTRUCTED TO DISREGARD CAIN'S GUILTY PLEA, AND THE COURT GAVE
NONE, EITHER AT THE TIME THE PLEA WAS ENTERED OR IN FINALLY INSTRUCTING
THE JURY.  A LAYMAN WOULD HARDLY BE AWARE OF THE FACT THAT HE WAS
ENTITLED TO ANY PROTECTION FROM THE PREJUDICIAL EFFECT OF A
CODEFENDANT'S PLEA OF GUILT.  EVEN LESS COULD HE BE EXPECTED TO KNOW
THE PROPER COURSE TO FOLLOW IN ORDER TO INVOKE SUCH PROTECTION.  THE
VERY UNCERTAINTY OF THE NORTH CAROLINA LAW IN THIS RESPECT SERVES TO
UNDERLINE THE PETITIONER'S NEED FOR COUNSEL TO ADVISE HIM. 

THE POST-CONVICTION COURT MADE NO FINDING SPECIFICALLY EVALUATING THE
PREJUDICIAL EFFECT OF CAIN'S PLEA OF GUILT AND THE TRIAL JUDGE'S
SUBSEQUENT FAILURE TO GIVE CAUTIONARY INSTRUCTIONS TO THE JURY.  IN ANY
EVENT, WE CANNOT ESCAPE THE RESPONSIBILITY OF MAKING OUR OWN
EXAMINATION OF THE RECORD.  SPANO V. NEW YORK, 360 U.S. 315, 316.  WE
HOLD THAT THE CIRCUMSTANCES WHICH THUS AROSE DURING THE COURSE OF THE
PETITIONER'S TRIAL MADE THIS A CASE WHERE THE DENIAL OF COUNSEL'S
ASSISTANCE OPERATED TO DEPRIVE THE DEFENDANT OF THE DUE PROCESS OF LAW
GUARANTEED BY THE FOURTEENTH AMENDMENT.  THE PREJUDICIAL POSITION IN
WHICH THE PETITIONER FOUND HIMSELF WHEN HIS CODEFENDANT PLEADED GUILTY
BEFORE THE JURY RAISED PROBLEMS REQUIRING PROFESSIONAL KNOWLEDGE AND
EXPERIENCE BEYOND A LAYMAN'S KEN.  GIBBS V. BURKE, 337 U.S. 773; CASH
V. CULVER, 358 U.S. 633.  REVERSED. 

FN1  "I DON'T HAVE FUNDS TO EMPLOY AN ATTORNEY AND AM NOT CAPABLE OF
DEFENDING MYSELF.  IF THE COURT PLEASE, I WOULD LIKE TO ASK THE COURT
TO EMPLOY ME AN ATTORNEY." 

FN2  "I WILL SAY THAT HE IS NOT ABLE TO EMPLOY AN ATTORNEY, BUT AS TO
WHETHER HE IS ABLE TO REPRESENT HIMSELF I CANNOT SAY." 

FN3  N.C. GEN. STAT., SEC. 15-217 ET SEQ. 

FN4  THE NORTH CAROLINA POST-CONVICTION HEARING ACT PROVIDES:  "IF
THE PETITION ALLEGES THAT THE PETITIONER IS WITHOUT FUNDS TO PAY THE
COSTS OF THE PROCEEDING, AND IS UNABLE TO GIVE A COSTS BOND WITH
SURETIES FOR THE PAYMENT OF THE COSTS FOR THE PROCEEDING AND IS UNABLE
TO FURNISH SECURITY FOR COSTS BY MEANS OF A MORTGAGE OR LIEN UPON
PROPERTY TO SECURE THE COSTS, THE COURT MAY ORDER THAT THE PETITIONER
BE PERMITTED TO PROCEED TO PROSECUTE SUCH PROCEEDING WITHOUT PROVIDING
FOR THE PAYMENT OF COSTS.  IF THE PETITIONER IS WITHOUT COUNSEL AND
ALLEGES IN THE PETITION THAT HE IS WITHOUT MEANS OF ANY NATURE
SUFFICIENT TO PROCURE COUNSEL, HE SHALL STATE WHETHER OR NOT HE WISHES
COUNSEL TO BE APPOINTED TO REPRESENT HIM.  IF APPOINTMENT OF COUNSEL IS
SO REQUESTED, THE COURT SHALL APPOINT COUNSEL IF SATISFIED THAT THE
PETITIONER HAS NO MEANS SUFFICIENT TO PROCURE COUNSEL.  THE COURT SHALL
FIX THE COMPENSATION TO BE PAID SUCH COUNSEL WHICH, WHEN SO DETERMINED,
SHALL BE PAID BY THE COUNTY IN WHICH THE CONVICTION OCCURRED."  N.C.
GEN. STAT., SEC. 15-219. 

FN5  THE JUDGE WHO CONDUCTED THE POST-CONVICTION PROCEEDINGS WAS NOT
THE JUDGE WHO HAD PRESIDED AT THE TRIAL. 

FN6  THE DISMISSAL WAS CLEARLY BASED UPON THE COURT'S VIEW OF THE
MERITS OF THE PETITIONER'S CONSTITUTIONAL CLAIM.  THE COURT NOWHERE
SUGGESTED THAT THE PETITIONER HAD CHOSEN AN INAPPROPRIATE REMEDY UNDER
THE STATE LAW.  INDEED THE SUPREME COURT OF NORTH CAROLINA HAS MADE
CLEAR THAT CLAIMS OF UNCONSTITUTIONAL DENIAL OF THE RIGHT TO COUNSEL
ARE TO BE CONSIDERED ON THEIR MERITS IN POST-CONVICTION HEARING ACT
PROCEEDINGS.  STATE V. HACKNEY, 240 N.C. 230, 81 S.E.2D 778; STATE V.
CRUSE, 238 N.C. 53, 76 S.E.2D 320. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE WHITTAKER JOINS, DISSENTING. 

THE OPINION OF THE COURT BIDS FAIR TO "FURNISH OPPORTUNITIES HITHERTO
UNCONTEMPLATED FOR OPENING WIDE THE PRISON DOORS OF THE LAND."  FOSTER
V. ILLINOIS, 332 U.S. 134, 139 (1947).  WITHOUT SO MUCH AS MENTIONING
BETTS V. BRADY, 316 U.S. 455 (1942), IT CUTS SERIOUS INROADS INTO THAT
HOLDING AND RELEASES PETITIONER, NOW A FOURTH OFFENDER THOUGH ONLY 18
YEARS OLD, FROM HIS 3-TO-5-YEAR SENTENCE FOR LARCENY FROM THE PERSON. 
THE COURT DOES SO ON THE GROUND OF A SINGLE CIRCUMSTANCE OCCURRING AT
THE TRIAL, I.E., THE FACT THAT A CODEFENDANT, DAVID CAIN, WAS PERMITTED
AT THE CLOSE OF THE STATE'S CASE TO PLEAD GUILTY TO "LARCENY, IN SUCH
AMOUNT THAT IT IS A MISDEMEANOR."  THE COURT SAYS THAT THIS
CIRCUMSTANCE "MADE THIS A CASE WHERE THE DENIAL OF COUNSEL'S ASSISTANCE
OPERATED TO DEPRIVE THE DEFENDANT OF THE DUE PROCESS OF LAW GUARANTEED
BY THE FOURTEENTH AMENDMENT."  STRANGELY ENOUGH, THE COURT DIGS UP THIS
GROUND SUA SPONTE, FOR NEITHER THE PETITIONER, THE STATE, NOR ANY COURT
OF NORTH CAROLINA THOUGHT SUCH CIRCUMSTANCE PRODUCED SUFFICIENT
"UNFAIRNESS" IN THE TRIAL EVEN TO DISCUSS IT, THOUGH ITS EXISTENCE WAS
MENTIONED IN THE RECITAL OF FACTS IN PETITIONER'S BRIEF.  THE TRUTH IS
THAT THE COURTS OF NORTH CAROLINA HAVE HELD AFFIRMATIVELY THAT
PETITIONER RECEIVED A FAIR TRIAL, AND THAT NO SPECIAL CIRCUMSTANCES
WERE SHOWN TO INDICATE THAT LACK OF COUNSEL RESULTED IN PREJUDICE TO
PETITIONER. 

THE COURT, HOWEVER, SPECULATES THAT CAIN'S CHANGE IN PLEA "RAISED
PROBLEMS REQUIRING PROFESSIONAL KNOWLEDGE AND EXPERIENCE BEYOND A
LAYMAN'S KEN."  THE COURT SAYS THAT "THE PREJUDICIAL POSITION IN WHICH
THE PETITIONER FOUND HIMSELF" RESULTED.  BUT THIS IS PURELY SPECULATIVE
AND, I SUBMIT, DOES NOT AT ALL FOLLOW.  IN FACT, THE JURY - DESPITE
LANGUAGE IN THE COURT'S CHARGE WHICH INDICATED THE PRESENCE OF
"VIOLENCE, INTIMIDATION AND PUTTING THE VICTIM IN FEAR" - REFUSED TO
FIND PETITIONER GUILTY OF THE COMMON-LAW OFFENSE OF ROBBERY BUT ONLY
FOUND HIM GUILTY OF THE LESSER OFFENSE, LARCENY FROM THE PERSON.  THE
RECORD HERE WOULD CLEARLY SUPPORT A VERDICT OF GUILTY ON THE ROBBERY
CHARGE.  AS I APPRAISE THE JURY'S VERDICT, IT WOULD BE MUCH MORE
REALISTIC TO SAY THAT DAVID CAIN'S PLEA OF GUILTY INFLUENCED THE JURY
NOT TO FIND PETITIONER GUILTY OF THE GREATER OFFENSE.  AFTER ALL, CAIN
WAS ONLY THE DRIVER OF THE CAR AND PARTICIPATED NO FURTHER IN THE
CRIMINAL ENTERPRISE.  IN FACT, THE VICTIM COULD NOT EVEN IDENTIFY HIM
AT THE TRIAL.  CAIN, UNLIKE PETITIONER, HAD "WHOLEHEARTEDLY ADMITTED"
HIS GUILT TO THE OFFICERS.  THIS APPARENTLY BROUGHT ON HIS PLEA. 
PETITIONER ON THE OTHER HAND WAS THE CHIEF ACTOR IN THE CRIMINAL
ENTERPRISE.  IN ADDITION, HE HAD A CRIMINAL RECORD, HAD SERVED A TERM
IN PRISON, WAS TWICE AN ESCAPEE THEREFROM, AND FROM THE RECORD HERE
GIVES EVERY APPEARANCE OF BEING A HARDENED CRIMINAL.  STILL THE JURY
FOUND HIM GUILTY ONLY OF THE LESSER OFFENSE, LARCENY FROM THE PERSON. 
IT IS REASONABLE TO ASSUME THAT IT DID THIS BECAUSE CAIN WAS PERMITTED
TO PLEAD TO THE LESSER OFFENSE OF LARCENY. 

THE COURT CITES THREE NORTH CAROLINA CASES* IN SUPPORT OF THE
"POTENTIAL PREJUDICE" WHICH IT FINDS PETITIONER MAY HAVE SUFFERED FROM
CAIN'S CHANGE OF PLEA.  NONE OF THESE CASES WERE CITED BY THE PARTIES. 
AS I HAVE SAID, THE POINT WAS NOT RAISED IN THE BRIEFS.  BUT EVEN THE
NORTH CAROLINA CASES CITED BY THE COURT DO NOT SUPPORT ITS NEW THEORY
FOR REVERSAL.  ALL THEY INDICATE, AS THE COURT FRANKLY POINTS OUT, IS
THAT CARE MUST BE EXERCISED TO AVOID "UNDUE PREJUDICE."  IN THIS REGARD
THE TRIAL COURT FULLY PROTECTED PETITIONER ALL DURING THE PRESENTATION
OF THE CASE AND GAVE A FULL, FAIR, AND INTELLIGENT CHARGE TO WHICH NO
OBJECTION IS EVEN NOW BEING MADE BY PETITIONER.  IT IS INTIMATED BY THE
COURT THAT NORTH CAROLINA LAW REQUIRED A CHARGE THAT CAIN'S PLEA NOT BE
CONSIDERED AS ANY EVIDENCE BEARING ON PETITIONER'S GUILT.  BUT THE
SHORT ANSWER IS THAT THREE NORTH CAROLINA COURTS HAVE CONSIDERED THIS
CASE AND NOT ONE HAS EVEN MENTIONED THE POINT.  THE COURT SAYS THIS
UNDERLINES THE PETITIONER'S NEED FOR COUNSEL.  I SUBMIT THAT HE HAS HAD
COUNSEL SINCE HIS POST CONVICTION HEARING ACT CASE WAS FILED SOME TWO
YEARS AGO, AND NOT ONCE HAS THE HANDLING OF THE CAIN PLEA BEEN URGED AS
ERROR NECESSITATING REVERSAL. 

*STATE V. HUNTER, 94 N.C. 829, 835; STATE V. BRYANT, 236 N.C. 745,
747, 73 S.E.2D 791, 792; STATE V. KERLEY, 246 N.C. 157, 97 S.E.2D 876. 

WHILE I DO NOT WISH TO LABOR THE ISSUE, I MUST SAY THAT CAREFUL STUDY
OF THE CASE CONVINCES ME THAT IT WAS A SIMPLE ONE AND THE TRIAL WAS
WITHOUT COMPLEXITY OR TECHNICALITY.  THE PETITIONER AND THREE OTHERS
INDUCED THEIR VICTIM, AN ELDERLY MAN, TO ENTER THEIR CAR ON THE RUSE
THAT THEY WOULD TAKE HIM HOME FOR A DOLLAR.  IT WAS IN THE NIGHTTIME
AND ON THE WAY TO HIS HOME THEY DROVE INTO SOME WOODS.  PETITIONER
ORDERED THE VICTIM OUT OF THE CAR, DIRECTED HIM TO HOLD UP HIS HANDS,
AND THEN WENT THROUGH HIS POCKETS, TAKING HIS BILLFOLD, CONTAINING SOME
$24.  THE SOLE QUESTION FOR THE JURY WAS ONE OF FACT, NAMELY, DID
PETITIONER TAKE THE OLD MAN'S MONEY?  THE STATE OFFERED THREE WITNESSES
IN SUPPORT OF ITS POSITION.  THE PETITIONER AND HIS CODEFENDANT TOOK
THE STAND AND GAVE THEIR VERSION OF THE AFFAIR, EACH ADMITTING HIS
PRESENCE ON THE SCENE BUT DENYING ANY ROBBERY.  THERE IS NOT AND NEVER
HAS BEEN ANY CLAIM THAT THE STATE WITHHELD ANY EVIDENCE OR USED
PERJURED TESTIMONY OR THAT INCOMPETENT EVIDENCE WAS ADMITTED AGAINST
THE PETITIONER; OR THAT HE WAS DENIED COMPULSORY PROCESS FOR WITNESSES;
OR THAT HE WAS IGNORANT OR FEEBLE-MINDED; OR THAT THE INSTRUCTIONS OF
THE COURT WERE NOT FULL AND SUFFICIENT.  AS THE COURT ITSELF FINDS,
THIS "IS NOT A CASE" WHERE THE AGE OF THE DEFENDANT OR THE DELIBERATE
"OVERREACHING BY COURT OR PROSECUTOR" RESULTED IN AN "UNFAIR TRIAL." 
MOREOVER, THE COURT FINDS THAT THE CASE UPON WHICH THE PETITIONER
PRIMARILY DEPENDS, WADE V. MAYO, 334 U.S. 672 (1948), IS IN NOWISE
CONTROLLING.  IT THEREFORE FOLLOWS THAT THE LONE SPECIAL CIRCUMSTANCES
UPON WHICH PETITIONER DEPENDS, NAMELY, HIS "YOUTHFULNESS  ...  HIS LACK
OF FORMAL EDUCATION, HIS TIMELY REQUEST FOR THE APPOINTMENT OF COUNSEL,
HIS INABILITY TO HIRE A LAWYER, AND HIW OWN FUMBLING DEFENSE," DO NOT
SHOW A LACK OF DUE PROCESS BASED ON THE TRIAL JUDGE'S REFUSAL TO
APPOINT COUNSEL FOR HIM. 

THE RECORD CLEARLY SHOWS, AS THE TRIAL COURT FOUND, THAT THE
PETITIONER "IS INTELLIGENT, WELL INFORMED, AND WAS FAMILIAR WITH AND
EXPERIENCED IN COURT PROCEDURE AND CRIMINAL TRIALS, HAVING BEEN
PREVIOUSLY TRIED ON DIFFERENT OCCASIONS FOR CARELESS AND RECKLESS
DRIVING, FOR BREAKING AND ENTERING, FOR DRIVING WHILE UNDER THE
INFLUENCE OF INTOXICATING LIQUOR, AND FOR ASSAULT AND ROBBERY."  ONLY
AT THE PREVIOUS TERM OF THE SAME COURT, PETITIONER HAD DEFENDED HIMSELF
ON THE ASSAULT AND ROBBERY CHARGE AND WAS FOUND NOT GUILTY BY THE
JURY.  BUT WHAT MORE COULD EMPHASIZE THE PETITIONER'S INGENUITY IN
DEFENDING HIMSELF THAN HIS DEFENSE HERE?  IT WAS SIMPLE AND DIRECT. 
BOTH HE AND HIS CODEFENDANT HAD THIS STORY:  THE VICTIM, BEFORE
ENTERING THE CAR, HAD BEEN DRINKING BEER AND ON THE WAY HOME GAVE
PETITIONER THE MONEY TO BUY A PINT OF VODKA.  AFTER THEY ALL PARTOOK OF
THE VODKA THE VICTIM BECAME ILL AND NAUSEATED WHILE SITTING IN THE BACK
OF THE CAR.  THE PETITIONER THEN GOT IN THE BACK SEAT, AND WHEN THE CAR
WAS STOPPED HE HELPED THE VICTIM OUT AND THE LATTER FELL DOWN ON THE
GROUND.  PETITIONER THEN GOT BACK IN THE CAR AND HIS GROUP DROVE AWAY. 
AFTER LEAVING THE VICTIM, PETITIONER'S CODEFENDANT FOUND THE BILLFOLD
IN THE CAR.  IT "ALMOST WENT BEHIND THE BACK SEAT."  IT HAD NO MONEY IN
IT BUT PETITIONER PROPOSED THAT THEY TAKE IT BACK TO THE VICTIM.  THEY
THEN RETURNED TO WHERE THE VICTIM GOT OUT OF THE CAR BUT HE WAS GONE,
AND ALTHOUGH THEY "GOT OUT AND HOLLERED FOR HIM," HE COULD NOT BE
FOUND.  AFTER THE DEFENDANTS LEFT THE SCENE, THE BILLFOLD WAS THROWN
FROM THE CAR BY PETITIONER'S CODEFENDANT AND WAS NOT PRODUCED AT THE
TRIAL.  THIS WAS INDEED A SHREWD DEFENSE.  THE ONLY TROUBLE WAS THAT
THE JURY DID NOT BELIEVE IT. 

ON THE FACTS OF THIS RECORD, I CAN SEE NO BASIS FOR SAYING THAT
PETITIONER WAS DENIED DUE PROCESS, BETTS V. BRADY, SUPRA, AND
ACCORDINGLY WOULD AFFIRM THE JUDGMENT. 
..END :









CORY CORPORATION V. SAUBER 363 U.S. 709 


NO. 436.  ARGUED MAY 16, 1960.  - DECIDED JUNE 20, 1960.  - 266 F.2D 58,
267 F.2D 802, REVERSED. 


THE INTERNAL REVENUE CODES OF 1939, SEC. 3405(C), AND 1954, SEC. 4111,
PLACED A 10% EXCISE TAX ON SALES OF "SELF-CONTAINED AIR-CONDITIONING
UNITS" AND GAVE THE COMMISSIONER OF INTERNAL REVENUE, WITH THE APPROVAL
OF THE SECRETARY OF THE TREASURY, POWER TO PRESCRIBE NEEDFUL RULES AND
REGULATIONS FOR THE ENFORCEMENT OF THE PROVISIONS RELATING TO SUCH
TAXES.  THE COMMISSIONER PUBLISHED REVENUE RULINGS IN 1948 AND 1954
HOLDING THAT THE STATUTE TAXED AIR-CONDITIONING UNITS WHICH HAD CERTAIN
PHYSICAL FEATURES, WERE DESIGNED FOR INSTALLATION IN A WINDOW OR OTHER
OPENING AND HAD "A TOTAL MOTOR HORSEPOWER OF LESS THAN 1 HORSEPOWER." 
HELD: 

1.  THESE RULINGS WERE VALID.  PP. 711-712. 

2.  THE CASE IS REMANDED TO THE COURT OF APPEALS FOR CONSIDERATION OF
THE QUESTION WHAT IS MEANT BY "HORSEPOWER" AND ANY OTHER QUESTIONS
WHICH MAY REMAIN.  P. 712. 

3.  THIS DISPOSITION OF THE CASE IS WITHOUT PREJUDICE TO SUCH ACTION
AS THE LOWER COURTS MAY DEEM APPROPRIATE TO PREVENT TAXPAYERS, SHOULD
THEY ULTIMATELY PREVAIL, FROM OBTAINING A WINDFALL BY REASON OF TAXES
COLLECTED BY THEM BUT NOT PAID TO THE GOVERNMENT.  P. 712. 

CORY CORPORATION ET AL. V. SAUBER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

THIS SUIT WAS INSTITUTED BY PETITIONERS IN THE DISTRICT COURT FOR A
REFUND OF EXCISE TAXES COLLECTED ON THE SALES OF TWO AIR-CONDITIONING
UNITS SOLD IN 1954 AND 1955.  SECTION 3405(C) OF THE INTERNAL REVENUE
CODE OF 1939, 26 U.S.C. (1952 ED.)  SEC.  3405(C), PLACED A 10% TAX ON
"SELF-CONTAINED AIR-CONDITIONING UNITS."  (FN1)  SECTION 3450 GAVE THE
COMMISSIONER, WITH THE APPROVAL OF THE SECRETARY, POWER TO PRESCRIBE
NEEDFUL RULES AND REGULATIONS FOR THE ENFORCEMENT OF THE PROVISIONS
RELATING TO SUCH TAXES.  PURSUANT TO THIS POWER, THE COMMISSIONER
PUBLISHED REVENUE RULINGS IN 1948 (FN2) AND IN 1954 (FN3) HOLDING THAT
THE STATUTE TAXED AIR-CONDITIONING UNITS WHICH HAD CERTAIN PHYSICAL
FEATURES, WERE DESIGNED FOR INSTALLATION IN A WINDOW OR OTHER OPENING
AND HAD "A TOTAL MOTOR HORSEPOWER OF LESS THAN 1 HORSEPOWER."  THESE
RULINGS REPRESENTED THE COMMISSIONER'S CONSTRUCTION OF THE ACT UNTIL A
DIFFERENT CONSTRUCTION, APPLIED PROSPECTIVELY ONLY, WAS EXPRESSED IN
REGULATIONS ISSUED IN 1959.  (FN4) 

THE PARTIES STIPULATED THAT THE STATUTE APPLIED ONLY TO "SELF
CONTAINED AIR CONDITIONING UNITS OF THE HOUSEHOLD TYPE" AND THAT EACH
OF THE TWO UNITS IN QUESTION HAD AN ACTUAL MOTOR HORSEPOWER OF ONE
HORSEPOWER.  THE TAXPAYERS CONTENDED THAT THE WORDS "MOTOR HORSEPOWER"
IN THE REVENUE RULINGS MEANT ACTUAL HORSEPOWER; THE GOVERNMENT
CONTENDED THAT THEY MEANT THE NOMINAL HORSEPOWER GIVEN BY THE
MANUFACTURER OR "RATED" HORSEPOWER ASSIGNED ON THE BASIS OF STANDARDS
ESTABLISHED BY TRADE ASSOCIATIONS.  THE DISTRICT COURT CONSTRUED THE
REVENUE RULINGS AS REFERRING TO ACTUAL, NOT NOMINAL OR RATED,
HORSEPOWER AND FOUND, IN ACCORDANCE WITH THE STIPULATION, THAT EACH OF
THE TWO UNITS HAD AN ACTUAL HORSEPOWER IN EXCESS OF ONE HORSEPOWER.  IT
FOUND ADDITIONALLY THAT EVEN THE "RATED" HORSEPOWER OF THE TWO UNITS IN
QUESTION WAS GREATER THAN ONE HORSEPOWER.  ON APPEAL THE COURT OF
APPEALS REVERSED.  266 F.2D 58, 267 F.2D 802.  IT DID NOT REACH THE
QUESTION AS TO THE MEANING OF THE REVENUE RULINGS, FOR IT HELD THAT
"HOUSEHOLD TYPE" WAS THE CONTROLLING STATUTORY CRITERION, THAT THE
HORSEPOWER OF THE UNITS IS IRRELEVANT TO THAT ISSUE, THAT THE UNITS IN
QUESTION WERE CLEARLY OF THE HOUSEHOLD TYPE BECAUSE THEY WERE "MADE TO
MEET THE NEEDS OF A HOUSEHOLD," AND THAT THE REVENUE RULINGS, INSOFAR
AS THEY REFERRED TO HORSEPOWER, WERE THEREFORE VOID.  THE CASE IS HERE
ON PETITION FOR A WRIT OF CERTIORARI, 361 U.S. 899. 

THERE IS MUCH SAID IN THE BRIEFS AND IN ORAL ARGUMENT ABOUT THIS CASE
AS A TEST CASE.  IT IS SAID THAT TAXES ON THE SALE OF ABOUT 50,000
UNITS TURN ON THIS DECISION.  WE INTIMATE NO OPINION AS TO THE TAXES ON
ANY SALES EXCEPT THE TWO INVOLVED HERE.  THE ONLY ISSUES BEFORE THE
COURT ARE THE CONSTRUCTION AND VALIDITY OF THE REVENUE RULINGS.  HENCE
WE DO NOT REACH THE QUESTION AS TO WHAT OTHER DEFENSES MIGHT HAVE BEEN
MADE.  RESPONDENT URGES IN THIS COURT, CONTRARY TO THE STIPULATION
BELOW, THAT THE STATUTE TAXES ALL SELF-CONTAINED AIR-CONDITIONING
UNITS, NOT MERELY THOSE OF THE HOUSEHOLD TYPE.  WE NEED NOT CONSIDER
WHICH VIEW OF THE STATUTE IS CORRECT FOR UNDER EITHER VIEW WE THINK THE
HORSEPOWER TEST IS A PERMISSIBLE ONE.  WE HOLD THAT THE REVENUE RULINGS
WHICH WERE IN FORCE FROM 1948 TO 1959 (FN5) WERE NOT VOID.  THE FACTOR
OF HORSEPOWER IN OUR OPINION MAY HAVE HAD SOME RELATION TO SIZE IN THE
THEN STAGE OF ENGINEERING DEVELOPMENT AND SIZE MIGHT WELL HAVE BEEN
RELEVANT TO WHAT WAS THEN A "SELF-CONTAINED AIR-CONDITIONING UNIT." 
THERE IS INDEED EVIDENCE THAT THE LESS-THAN-ONE-HORSEPOWER TEST WAS
DESIGNED TO DRAW THE LINE BETWEEN HOUSEHOLD AND COMMERCIAL TYPES OF AIR
CONDITIONING EQUIPMENT.  MOREOVER, IT APPEARS THAT THE RULINGS IN
QUESTION WERE ISSUED AFTER CONSULTATION WITH INDUSTRY REPRESENTATIVES,
WHO ASSERTED THAT HORSEPOWER WAS A FACTOR RELEVANT TO THE DEFINITION OF
THE STATUTORY TERM AS THEY UNDERSTOOD IT.  THE COMMISSIONER
CONSISTENTLY ADHERED TO THE HORSEPOWER TEST FOR MORE THAN 10 YEARS, AND
CONGRESS DID NOT CHANGE THE STATUTE THOUGH IT WAS SPECIFICALLY ADVISED
IN 1956 THAT THAT WAS THE TEST WHICH WAS BEING APPLIED.  (FN6) WE
CANNOT SAY THAT SUCH A CONSTRUCTION WAS NOT A PERMISSIBLE ONE, CF.
UNIVERSAL BATTERY CO. V. UNITED STATES, 281 U.S. 580, ESPECIALLY WHERE
IT CONTINUED WITHOUT DEVIATION FOR OVER A DECADE.  CF. UNITED STATES V.
LESLIE SALT CO., 350 U.S. 383.  THE DISTRICT COURT FOUND THAT "AMONG
ENGINEERS, THE HORSEPOWER OF A MOTOR DOES NOT MEAN ITS NOMINAL
HORSEPOWER RATING BUT MEANS THE ACTUAL HORSEPOWER WHICH THE MOTOR WILL
DELIVER CONTINUOUSLY UNDER ITS FULL NORMAL LOAD." 

THE COURT OF APPEALS DID NOT REACH THAT QUESTION NOR REVIEW THAT
FINDING IN VIEW OF ITS CONCLUSION THAT THE HORSEPOWER TEST WAS NOT
VALID.  ACCORDINGLY WE REMAND THE CASE TO THE COURT OF APPEALS FOR
CONSIDERATION OF THAT AND ANY OTHER QUESTIONS WHICH MAY REMAIN.  AND WE
ADD THAT OUR DISPOSITION IS WITHOUT PREJUDICE TO SUCH ACTION AS THE
LOWER COURTS MAY DEEM APPROPRIATE TO PREVENT TAXPAYERS, SHOULD THEY
ULTIMATELY PREVAIL, FROM OBTAINING A WINDFALL BY REASON OF TAXES
COLLECTED BY THEM BUT NOT PAID TO THE GOVERNMENT.  REVERSED. 

FN1  THIS WAS RE-ENACTED IN SEC. 4111 OF THE 1954 CODE, 26 U.S.C.
SEC. 4111. 

FN2  S.T. 934, 1948-2 CUM. BULL.  180. 

FN3  REV. RUL. 54-462, 1954-2 CUM. BULL.  410. 

FN4  THIS TEST OF HORSEPOWER WAS EXCLUDED FROM THE TREASURY
REGULATIONS PROMULGATED IN 1959 UNDER THE 1954 CODE BY T.D. 6423, 1959
2 CUM. BULL.  282. 

FN5  SEE NOTES 2 AND 3, SUPRA. 

FN6  HEARINGS, SUBCOMMITTEE, HOUSE WAYS AND MEANS COMMITTEE ON EXCISE
TAXES, 84TH CONG., 2D SESS. 163-165. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

I WOULD DISMISS THE WRIT OF CERTIORARI AS IMPROVIDENTLY GRANTED. 

THE PETITION URGED THE SUBSTANTIAL QUESTION OF RETRO-ACTIVITY IN THE
COMMISSIONER'S EXERCISE OF HIS LAWMAKING POWER, IN THAT HE ATTACKED IN
COURT A PRIOR INTERPRETATION BY HIM OF THE TAXING STATUTES WHEREBY THE
TAX NOW CLAIMED WAS NOT DUE.  AS THE CASE FINALLY WAS PRESENTED HERE NO
SUBSTANTIAL QUESTION OF RETROACTIVITY WAS PRESENTED.  INSOFAR AS THE
RETROACTIVITY INITIALLY ASSERTED DEPENDED UPON THE RELIANCE OF THE
PETITIONERS, THAT IS APPARENTLY GOVERNED BY SEC. 1108(B) OF THE REVENUE
ACT OF 1926, 44 STAT. 114, CONTROLLING EXCISE TAXATION, AND IS IN ANY
EVENT NOT NOW IN ISSUE, FOR THE PETITIONERS STIPULATED IN THE TRIAL
COURT AND REITERATED HERE THAT THE COMMISSIONER WAS IN NOW WAY
"ESTOPPED" TO ATTACK THE INVALIDITY OF THE RULING AS PETITIONERS AND
THE DISTRICT COURT CONSTRUED IT.  INSOFAR AS THE RETROACTIVITY ASSERTED
WAS THE MORE GENERAL UNFAIRNESS OF A CHANGE IN THE COMMISSIONER'S
INTERPRETATION, IT CANNOT BE PRESENTED IN THIS CASE BECAUSE FROM THE
START IT HAS BEEN MANIFEST THAT THE RULING IS, TO SAY THE LEAST,
AMBIGUOUS (THE COMMISSIONER TRIED TO CLARIFY IT IN 1957) AND REASONABLY
SUSCEPTIBLE OF BOTH INTERPRETATIONS URGED FOR IT, SO THAT ANY JUDICIAL
DETERMINATION OF ITS MEANING WAS BOUND TO AFFECT SOME TAXPAYERS
RETROACTIVELY.  NOR WAS OR IS THERE ANY BASIS IN THE RECORD FOR SAYING
THAT THE COURT OF APPEALS' REJECTION OF THE HORSEPOWER TEST IN TOTO WAS
MORE SEVERELY RETROACTIVE IN ITS EFFECT THAN EITHER CONSTRUCTION OF THE
RULING MIGHT HAVE BEEN. 

THE ONLY OTHER CONTENTION PRESENTED FOR REVIEW IS THE SUBSTANTIVE
STATUTORY DETERMINATION OF THE COURT OF APPEALS, AS TO WHICH THAT COURT
APPARENTLY FAILED TO GIVE DUE WEIGHT TO THE INTERPRETATIVE FUNCTION OF
THE COMMISSIONER.  IN LIGHT OF THE CONFUSED AND CLOUDY RECORD IN THIS
CASE, THIS FAILURE CANNOT BE SAID TO BE CLEARLY PRESENTED SINCE THE
COMMISSIONER'S APPROACH HAS RESULTED IN A RULE WHICH THE COURT OF
APPEALS FOUND TO BE "INCONCLUSIVE AND UNCERTAIN."  HAD ALL THIS BEEN
CLEAR FROM THE START, IT WOULD HAVE BEEN APPARENT, TO ME AT LEAST,
THAT, ASSUMING THE COURT OF APPEALS TO BE WRONG, THERE WAS NOT SUCH A
DEPARTURE "FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS
...  AS TO CALL FOR AN EXERCISE OF THIS COURT'S POWER OF SUPERVISION." 
RULE 19, PAR. 1(B). 

MOREOVER, THIS LITIGATION BEARS MANY OF THE EARMARKS OF A FEIGNED
SUIT.  DESPITE THE DESIRE OF THE PARTIES TO "TEST" A QUESTION OF LAW,
WE OUGHT TO AVOID ADJUDICATION IN A CASE WITH SO CHECKERED A COURSE OF
POSITIONS TAKEN BY THE PARTIES WHERE THE PARTICULAR CONTROVERSY MAY
WELL BE LESS THAN REAL.  THE CONSENT REQUIRED BY SEC. 6416(A)(3) OF THE
INTERNAL REVENUE CODE OF 1954, A PRECONDITION FOR THIS ACTION, WAS
OBTAINED FROM THE ATTORNEY AND AUDITOR OF THE PETITIONERS.  IT IS NOT
TOO BROAD AN INFERENCE TO SAY THAT THE PETITIONERS WERE, IN EFFECT,
WRITING THEIR OWN CONSENT FOR BRINGING THIS SUIT.  WITHOUT FURTHER
PROOF, SUCH SALES AND CONSENT HARDLY ESTABLISH THE IMMEDIATE INTEREST
OF THE PETITIONERS IN THE OUTCOME OF THIS LAWSUIT, I.E., MONEY LOSS DUE
TO AN ILLEGAL EXACTION, NOT SOME OTHER SUIT SOUGHT TO BE MADE TO TURN
UPON IT, WHICH IS A REQUISITE TO ADJUDICATION.  CF. ATHERTON MILLS V.
JOHNSTON, 259 U.S. 13, 15.  RESPONSIBILITY FOR THE CONFUSING SHIFTS OF
POSITION DURING LITIGATION WHICH CHARACTERIZE THIS RECORD MAY NOT
UNFAIRLY BE ATTRIBUTED TO THE EXTENT TO WHICH THIS ACTION WAS
CONTRIVED, AND TO THE STIPULATIONS AFFECTING THE REALLY SUBSTANTIAL
INTERESTS WHICH WERE APPARENTLY THE CHIEF CONCERN FOR USING THIS ACTION
AS A PILOT LITIGATION.  WHETHER OR NOT A CASE IS FEIGNED MUST
ULTIMATELY TURN ON INFERENCES FROM THE RECORD AND HISTORY OF A
LITIGATION.  THE APPEARANCE THAT IT MAY BE, EVEN IF NOT DEMONSTRABLY
CALLING FOR DISMISSAL OF THE PROCEEDING, OUGHT TO MAKE THE COURT DOUBLY
UNWILLING TO GIVE ITS JUDGMENT ON THE SUBSTANTIVE QUESTIONS TO BE DUG
OUT OF SO DUBIOUS A LITIGATION ON SUCH A RECORD. 

I WOULD DISMISS. 

MR. JUSTICE CLARK, WHOM THE CHIEF JUSTICE AND MR. JUSTICE BLACK JOIN,
DISSENTING. 

THE CONGRESS, IN 1941, LEVIED AN EXCISE TAX ON "SELF-CONTAINED AIR
CONDITIONING UNITS."  SEC.  3405(C), INTERNAL REVENUE CODE OF 1939. 
THE LEGISLATIVE HISTORY SHOWS THAT THE CONGRESS INTENDED THE TAX TO
"APPLY TO ALL MECHANICAL REFRIGERATORS AND REFRIGERATING UNITS
(INCLUDING SELF-CONTAINED AIR-CONDITIONING UNITS) WHETHER OF HOUSEHOLD
OR OTHER TYPE."  H.R. REP. NO. 1040, 77TH CONG., 1ST SESS., P. 32.  IN
1948, THE COMMISSIONER ISSUED A RULING, REISSUED IN 1954, WHICH DEFINED
SELF-CONTAINED AIR-CONDITIONING UNITS AS THOSE WITH "A TOTAL MOTOR
HORSEPOWER OF LESS THAN 1 HORSEPOWER." 

THIS SUIT INVOLVES ONLY TWO SELF-CONTAINED AIR-CONDITIONING UNITS,
BUT BY STIPULATION OF THE PARTIES IT IS A "PROTOTYPE OR TEST" CASE TO
DETERMINE THE EXTENT OF THE COVERAGE OF THE EXCISE TAX UNDER SEC.
3405(C) AS TO SELF-CONTAINED AIR-CONDITIONING UNITS.  PETITIONERS
CONTEND THAT "TOTAL MOTOR HORSEPOWER" AS USED IN THE RULINGS MEANT
ACTUAL HORSEPOWER RATHER THAN THAT FOR WHICH THE MOTOR IS RATED BY THE
MANUFACTURER.  IT WAS STIPULATED THAT EACH UNIT HAD OVER ONE ACTUAL
HORSEPOWER, BUT A MANUFACTURER'S RATING OF THREE-FOURTHS HORSEPOWER. 
THE GOVERNMENT CONTENDED THAT AN INTERPRETATION THAT ACTUAL HORSEPOWER
APPLIED WOULD MAKE THE RULINGS "FLY IN THE FACE OF THE STATUTE."  IT
ARGUED THAT THE RULING SHOULD BE INTERPRETED "IN CONSONANCE WITH THE
STATUTE SO AS NOT TO REQUIRE THE COURT TO STRIKE DOWN THE RULING AS A
NULLITY AND AS SOMETHING THAT IS UNREASONABLE, VOID, AND OF NO
EFFECT."  (FN1)  THIS, THE GOVERNMENT ASSERTED, REQUIRED THAT "TOTAL
MOTOR HORSEPOWER" BE INTERPRETED AS MANUFACTURER'S RATED HORSEPOWER. 
THE TRIAL COURT, HOWEVER, ENFORCED THE RULINGS AS REQUIRING THE
APPLICATION OF THE ACTUAL HORSEPOWER TEST.  THE COURT OF APPEALS
REVERSED, HOLDING THAT THE HORSEPOWER TEST WAS NOT PERMISSIBLE UNDER
THE STATUTE, AND THAT THE RULINGS WERE VOID. 

THE GOVERNMENT'S CONTENTION THAT THE STATUTE COVERS ALL SELF
CONTAINED AIR-CONDITIONING UNITS IS BRUSHED ASIDE BY THIS COURT WITH A
FINDING THAT SUCH A POSITION IS "CONTRARY TO THE STIPULATION" WHICH
DECLARES THE STATUTE RESTRICTED TO UNITS OF THE "HOUSEHOLD TYPE."  THE
COURT FINDS THAT IT "NEED NOT CONSIDER WHICH VIEW OF THE STATUTE IS
CORRECT FOR UNDER EITHER VIEW WE THINK THE HORSEPOWER TEST IS A
PERMISSIBLE ONE."  IT HOLDS THAT THE RULINGS "WERE NOT VOID."  THUS,
DESPITE THE FACT THAT SEC. 3405(C) REFERS SOLELY TO "SELF-CONTAINED AIR
CONDITIONING UNITS" AND FAILS TO MENTION "HOUSEHOLD TYPE," THE COURT
REFUSES TO RESOLVE THIS QUESTION OF STATUTORY CONSTRUCTION RAISED BY
THE GOVERNMENT.  IT SIMPLY REMANDS THE CASE TO THE COURT OF APPEALS FOR
A DETERMINATION OF WHETHER THE RULING MEANT BY ITS LANGUAGE TO REFER TO
ACTUAL HORSEPOWER, AS THE DISTRICT COURT FOUND, OR TO THE
MANUFACTURER'S RATED HORSEPOWER AS POSTED ON THE MOTOR ITSELF.  I
CANNOT SEE HOW ANY HORSEPOWER TEST UNDER THE RULINGS WOULD BE
PERMISSIBLE, SINCE IT IS NOT MENTIONED IN THE STATUTE AND IS ENTIRELY
INCONSISTENT WITH THE STATUTE'S FULL COVERAGE.  THIS TEST WAS
FORMULATED BY THE INDUSTRY IN MEETINGS THAT CULMINATED IN A LETTER FROM
THE YORK CORPORATION TO THE COMMISSIONER.  THIS LETTER REVEALED THAT
YORK CONSIDERED THE LANGUAGE "SELF-CONTAINED AIR-CONDITIONING UNITS" AS
USED IN SEC. 3405(C) TO MEAN "EXACTLY WHAT THE COMMON EVERYDAY ACCEPTED
USAGE OF THE TERM IMPLIES - THE UNIT MUST BE COMPLETE WITHIN ITSELF." 
THE SUGGESTED DEFINITION WHICH YORK MADE WAS LATER PROMULGATED IN
ALMOST IDENTICAL LANGUAGE BY THE COMMISSIONER.  YORK REPRESENTED IT TO
BE "SUFFICIENTLY BROAD IN ITS SCOPE TO INCLUDE WITHOUT EXCEPTION ALL
SELF-CONTAINED AIR CONDITIONING UNITS WHICH ARE NOW BEING
MANUFACTURED."  PETITIONERS ADMIT THAT THEY WERE "AT ALL TIMES MATERIAL
HERETO ENGAGED IN THE MANUFACTURE AND SALE OF SELF-CONTAINED AIR
CONDITIONING UNITS."  IT IS FURTHER ADMITTED THAT THE UNITS INVOLVED
HERE WERE SELF-CONTAINED ONES, "IN THE SENSE THAT ALL THE WORKS ARE IN
THE SAME BOX."   THEY CERTAINLY CAME WITHIN THE TERMS OF SEC. 3405(C)
AS REFLECTED IN THE YORK REPRESENTATIONS.  IF THESE REPRESENTATIONS
BROUGHT ABOUT AN ERRONEOUS RULING INCONSISTENT WITH SEC. 3405(C), THEN
IT IS VOID AND WE SHOULD SO DECLARE IT, AS DID THE COURT OF APPEALS. 

FINALLY, THESE RULINGS DO NOT HAVE THE FORCE OF REGULATIONS, AND, AS
PETITIONERS ADMIT, THEY CANNOT "OVERRULE A STATUTE."  HOWEVER, IF THE
MANUFACTURER DOES NOT COLLECT THE TAX ON A SALE BECAUSE OF HIS RELIANCE
ON A RULING OF THE COMMISSIONER HOLDING THE SALE NONTAXABLE, THEN "NO
TAX SHALL BE LEVIED, ASSESSED, OR COLLECTED" ON THAT SALE.  SEC.
1108(B), REVENUE ACT OF 1926.  (FN2) IT FOLLOWS THAT IF THE PETITIONERS
DID NOT COLLECT THE TAX IMPOSED BY SEC. 3405(C) BECAUSE OF THE
COMMISSIONER'S RULINGS, NO TAX CAN NOW BE LEVIED OR COLLECTED ON THE
SAME.  THE GOVERNMENT SPECIFICALLY CONCEDES THAT IF RESPONDENTS "HAD
RELIED TO THEIR DETRIMENT - BY TREATING AS NONTAXABLE THE SALE OF UNITS
WITH AN ACTUAL HORSEPOWER OUTPUT OF ONE OR MORE (WHICH IS THE
INTERPRETATION PLACED ON THE RULING BY PETITIONERS AND THE TRIAL COURT)
- THEY WOULD BE PROTECTED (UNDER SEC. 1108(B)) AGAINST ANY RETROACTIVE
CHANGE IN ADMINISTRATIVE POSITION."  CONVERSELY, IF THE MANUFACTURER
DID NOT RELY ON THE RULINGS OF THE COMMISSIONER AND COLLECTED THE TAX
UNDER SEC. 3405(C), THEN HE COULD NOT NOW INTERPOSE INVALID RULINGS TO
BAR THE GOVERNMENT'S RECOVERY FROM HIM OF THE TAX HE HAS ALREADY
COLLECTED. 

IN THIS CONNECTION, NO ONE SEEMS TO KNOW TO WHAT EXTENT THE TAX HAS
BEEN COLLECTED BY THE INDUSTRY.  PETITIONERS NOW SEEM TO ADMIT THAT
THEY MADE SUBSTANTIAL COLLECTIONS, AND THE RECORD DISCLOSES THAT OTHER
MAJOR MANUFACTURERS DETERMINED "TAXABILITY  ...  BY REFERENCE TO RATED
HORSEPOWER, WHETHER OR NOT THE ACTUAL HORSEPOWER WAS DIFFERENT
THEREFROM."  IT THEREFORE APPEARS THAT LARGE SUMS OF MONEY HAVE BEEN
COLLECTED AND ARE NOW BEING RETAINED BY THE MANUFACTURERS.  THIS CASE
IS BASED ON ONLY TWO UNITS, PURCHASED BY PERSONS CONNECTED WITH THE
PETITIONERS.  UNDER THE STIPULATION, NEVERTHELESS, THE RESULT OF THIS
CASE WILL CONTROL THE TAX ON SOME 50,000 OTHER UNITS NOT INVOLVED
HERE.  WHILE THE CUSTOMERS WHO PAID THE TAX MIGHT SUE THE MANUFACTURER
THEREFOR, THE LIKELIHOOD OF SUCH ACTIONS WOULD BE HIGHLY REMOTE UNDER
THE CIRCUMSTANCES HERE. 

THUS FAR THE GOVERNMENT HAS RECEIVED THE TAX ONLY ON THE TWO UNITS
INVOLVED HERE.  THERE ARE NO "CONSENTS" SAVE ON THESE SAME TWO UNITS -
AND THESE CONSENTS WERE OBTAINED FROM A LAWYER AND AN ACCOUNTANT OF THE
TAXPAYERS.  THE ENTIRE RECORD AND COURSE OF THIS LITIGATION ARE CLOUDY,
AND THE PARTIES CANNOT EVEN AGREE AS TO WHAT THEY "AGREED" UPON IN
THEIR STIPULATIONS.  IN LIGHT OF THESE CIRCUMSTANCES, I THINK IT HIGHLY
UNFORTUNATE THAT TODAY THE COURT SHOULD ENTER AN ORDER WHICH MAY PERMIT
THE MANUFACTURERS TO KEEP AS A WINDFALL CONSIDERABLE AMOUNTS THEY HAVE
CHARGED THEIR CUSTOMERS FOR "EXCISE TAXES." 

FN1  SEE R. PP. 130-132. 

FN2  SEC. 1108(B) OF THE REVENUE ACT OF 1926, C. 27, 44 STAT. 9,
114: 

"NO TAX SHALL BE LEVIED, ASSESSED, OR COLLECTED  ...  ON ANY ARTICLE
SOLD OR LEASED BY THE MANUFACTURER,  ...  IF AT THE TIME OF THE SALE OR
LEASE THERE WAS AN EXISTING RULING, REGULATION, OR TREASURY DECISION
HOLDING THAT THE SALE OR LEASE OF SUCH ARTICLE WAS NOT TAXABLE, AND THE
MANUFACTURER,  ...  PARTED WITH POSSESSION OR OWNERSHIP OF SUCH
ARTICLE, RELYING UPON THE RULING, REGULATION, OR TREASURY DECISION." 
..END :



















GREENWALD V. MARYLAND 363 U.S. 719 


NO. 859.  DECIDED JUNE 20, 1960.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  221 MD. 235, 155 A.2D
894. 


GREENWALD V. MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















ANDERSON V. THORINGTON CONSTRUCTION CO., INC. 363 U.S. 719 


NO. 878.  DECIDED JUNE 20, 1960.  - REPORTED BELOW:  201 VA. 266, 110
S.E.2D 396. 


APPEAL DISMISSED FOR WANT OF A PROPERLY PRESENTED SUBSTANTIAL FEDERAL
QUESTION. 

ANDERSON V. THORINGTON CONSTRUCTION CO., INC. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A PROPERLY PRESENTED SUBSTANTIAL
FEDERAL QUESTION. 
..END :













AMERICAN LEGION POST NO. 51 V. PENNSYLVANIA 363 U.S. 720 


NO. 881.  DECIDED JUNE 20, 1960.  - REPORTED BELOW:  397 PA. 430, 156
A.2D 107. 


APPEAL DISMISSED FOR WANT OF A PROPERLY PRESENTED SUBSTANTIAL FEDERAL
QUESTION. 

AMERICAN LEGION POST NO. 51 V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A PROPERLY PRESENTED SUBSTANTIAL FEDERAL QUESTION. 
..END :













GREENWALD V. MARYLAND 363 U.S. 721 


NO. 920.  DECIDED JUNE 20, 1960.  - REPORTED BELOW:  221 MD. 245, 157
A.2D 119. 


APPEAL DISMISSED FOR WANT OF A PROPERLY PRESENTED SUBSTANTIAL FEDERAL
QUESTION. 

GREENWALD V. MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A PROPERLY PRESENTED SUBSTANTIAL FEDERAL QUESTION. 
..END :













UNITED STATES V. MANUFACTURERS NATIONAL BANK OF DETROIT 363 U.S. 194 


NO. 350.  ARGUED MARCH 31, 1960.  - DECIDED JUNE 13, 1960.  - 175 F.
SUPP. 291, REVERSED. 


IN 1936, RESPONDENT'S DECEDENT DIVESTED HIMSELF OF HIS RIGHTS IN
CERTAIN INSURANCE POLICIES ON HIS OWN LIFE BY ASSIGNING THEM TO HIS
WIFE; BUT HE CONTINUED TO PAY THE PREMIUMS ON THEM UNTIL HE DIED IN
1954.  THE INTERNAL REVENUE SERVICE DETERMINED THAT, UNDER SEC.
811(G)(2)(A) OF THE INTERNAL REVENUE CODE OF 1939, THE PORTION OF THE
PROCEEDS ATTRIBUTABLE TO PREMIUMS PAID BY THE INSURED AFTER JANUARY 10,
1941, SHOULD BE INCLUDED IN HIS ESTATE FOR THE PURPOSES OF THE FEDERAL
ESTATE TAX.  HELD:  AS THUS APPLIED, SEC. 811(G)(2)(A) IS
CONSTITUTIONAL.  PP.  194-201. 

(A)  THE TAX IS NOT A DIRECT TAX ON PROPERTY WHICH CONGRESS CANNOT
EXACT WITHOUT APPORTIONMENT AMONG THE STATES.  PP. 197-200. 

(B)  THE TAX IS NOT RETROACTIVE AND DOES NOT VIOLATE THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT.  PP. 200-201. 

UNITED STATES V. MANUFACTURERS NATIONAL BANK OF DETROIT, EXECUTOR. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER SECTION 811(G)(2)(A) OF THE INTERNAL
REVENUE CODE OF 1939 IS CONSTITUTIONAL AS APPLIED IN THIS CASE.  THAT
INCLUSION OF INSURANCE PROCEEDS IN THE GROSS ESTATE OF AN INSURED WHERE
THE PROCEEDS ARE RECEIVABLE BY BENEFICIARIES OTHER THAN THE EXECUTOR
BUT ARE ATTRIBUTABLE TO PREMIUMS PAID BY THE INSURED.  (FN1)  INCLUSION
IS REQUIRED REGARDLESS OF WHETHER THE INSURED RETAINED ANY POLICY
RIGHTS.  HOWEVER, IF THE INSURED POSSESSED NO "INCIDENTS OF OWNERSHIP"
AFTER JANUARY 10, 1941, THE PREMIUMS PAID BY HIM BEFORE THAT DATE ARE
EXCLUDED IN DETERMINING THE PORTION OF THE PROCEEDS FOR WHICH HE PAID
THE PREMIUMS.  (FN2) 

THE FACTS IN THE CASE ARE STIPULATED.  THE INSURED DIED TESTATE ON
JULY 15, 1954.  THE TAXPAYER IS HIS EXECUTOR.  ON THE ESTATE TAX
RETURN, THE TAXPAYER INCLUDED, AS PART OF THE GROSS ESTATE, THE
PROCEEDS OF FOUR INSURANCE POLICIES PAYABLE TO THE WIFE OF THE
INSURED.  THESE POLICIES WERE ORIGINALLY ISSUED TO THE INSURED, BUT HE
DIVESTED HIMSELF OF THE POLICY RIGHTS BY ASSIGNING THEM TO HIS WIFE ON
DECEMBER 18, 1936.  HOWEVER, HE CONTINUED TO PAY THE PREMIUMS ON THE
POLICIES UNTIL HE DIED.  AFTER HIS DEATH, THE PROCEEDS WERE RETAINED BY
THE INSURER FOR THE BENEFIT OF THE FAMILY, PURSUANT TO THE PROVISIONS
OF A SETTLEMENT OPTION SELECTED BY THE WIFE. 

IN AUDITING THE RETURN, THE REVENUE SERVICE DETERMINED THAT ONLY THE
PORTION OF THE PROCEEDS ATTRIBUTABLE TO PREMIUMS PAID BY THE INSURED
AFTER JANUARY 10, 1941, SHOULD BE INCLUDED IN HIS ESTATE.  (FN3)
ACCORDINGLY, THE TAX WAS ADJUSTED AND A REFUND WAS MADE.  THE EXECUTOR
THEN FILED A CLAIM FOR REFUND OF THE REST OF THE TAX ATTRIBUTABLE TO
THE INCLUSION OF THE PROCEEDS.  THE EXECUTOR CLAIMED THAT BECAUSE THE
DECEDENT HAD DIVESTED HIMSELF OF ALL INTEREST IN THE POLICIES IN 1936,
THE TAX CONSTITUTED AN UNAPPORTIONED DIRECT TAX ON PROPERTY, INVALID
UNDER ARTICLE I, SECTIONS 2 AND 9, OF THE CONSTITUTION.  (FN4)
HOWEVER, THE COMMISSIONER REFUSED TO ALLOW THE CLAIM, AND THE PRESENT
SUIT FOR REFUND FOLLOWED.  IN THE DISTRICT COURT, THE EXECUTOR ADDED A
CLAIM THAT THE TAX IS ALSO INVALID UNDER THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT "BECAUSE IT IS RETROACTIVE AND DISCRIMINATORY IN ITS
OPERATION." 

THE DISTRICT COURT SUSTAINED THE TAXPAYER'S CONTENTION THAT, AS
APPLIED IN THIS CASE, SECTION 811(G)(2)(A) IS UNCONSTITUTIONAL.  IT
HELD THAT BECAUSE THE DECEDENT RETAINED NO INCIDENTS OF OWNERSHIP IN
THE POLICIES AFTER 1936, "NO TRANSFER OF THE PROPERTY HEREIN SOUGHT TO
BE INCLUDED IN THE ESTATE OF THIS DECEDENT OCCURRED AT THE TIME OF HIS
DEATH."  THE COURT CONCLUDED THAT THE TAX WAS THEREFORE A DIRECT TAX ON
THE PROCEEDS THEMSELVES AND COULD NOT BE LEVIED WITHOUT APPORTIONMENT. 
(FN5)  175 F. SUPP. 291.  THE GOVERNMENT APPEALED DIRECTLY TO THIS
COURT UNDER SECTIONS 1252 AND 2101 OF TITLE 28, AND WE NOTED
JURISDICTION.  361 U.S. 880. 

THE FIRST OBJECTION TO THE TAX IS THAT IT IS A DIRECT TAX - THAT IS,
THAT IT IS NOT A TAX UPON A TRANSFER OR OTHER TAXABLE EVENT BUT IS,
INSTEAD, A TAX UPON PROPERTY - WHICH CONGRESS CANNOT EXACT WITHOUT
APPORTIONMENT. 

THIS ARGUMENT DOES NOT DO JUSTICE TO THE EVIDENT INTENT OF CONGRESS
TO TAX EVENTS, "AS DISTINGUISHED FROM THEIR TANGIBLE FRUITS."  TYLER V.
UNITED STATES, 281 U.S. 497, 502.  FROM ITS INCEPTION, THE ESTATE TAX
HAS BEEN A TAX ON A CLASS OF EVENTS WHICH CONGRESS HAS CHOSEN TO LABEL,
IN THE PROVISION WHICH ACTUALLY IMPOSES THE TAX, "THE TRANSFER OF THE
NET ESTATE OF EVERY DECEDENT."  (FN6)  SEE NEW YORK TRUST CO. V.
EISNER, 256 U.S. 345.  IF THERE IS ANY TAXABLE EVENT HERE WHICH CAN
FAIRLY BE SAID TO BE A "TRANSFER" UNDER THIS LANGUAGE IN SECTION 810 OF
THE 1939 CODE, THE TAX IS CLEARLY CONSTITUTIONAL WITHOUT
APPORTIONMENT.  FOR SUCH A TAX HAS ALWAYS "BEEN TREATED AS A DUTY OR
EXCISE, BECAUSE OF THE PARTICULAR OCCASION WHICH GIVES RISE TO ITS
LEVY."  KNOWLTON V. MOORE, 178 U.S. 41, 81; NEW YORK TRUST CO. V.
EISNER, SUPRA, AT 349. 

UNDER THE STATUTE, THE OCCASION FOR THE TAX IS THE MATURING OF THE
BENEFICIARIES' RIGHT TO THE PROCEEDS UPON THE DEATH OF THE INSURED.  OF
COURSE, IF THE INSURED POSSESSED NO POLICY RIGHTS, THERE IS NO TRANSFER
OF ANY INTEREST FROM HIM AT THE MOMENT OF DEATH.  BUT THAT FACT IS NOT
MATERIAL, FOR THE TAXABLE "TRANSFER," THE MATURING OF THE
BENEFICIARIES' RIGHT TO THE PROCEEDS, IS THE CRUCIAL LAST STEP IN WHAT
CONGRESS CAN REASONABLY TREAT AS A TESTAMENTARY DISPOSITION BY THE
INSURED IN FAVOR OF THE BENEFICIARIES.  THAT DISPOSITION, WHICH BEGAN
WITH THE PAYMENT OF PREMIUMS BY THE INSURED, IS COMPLETED BY HIS
DEATH.  HIS DEATH CREATES A GENUINE ENLARGEMENT OF THE BENEFICIARIES'
RIGHTS.  IT IS THE "GENERATING SOURCE" OF THE FULL VALUE OF THE
PROCEEDS.  SEE SCHWARZ V. UNITED STATES, 170 F. SUPP. 2, 6.  THE
MATURING OF THE RIGHT TO PROCEEDS IS THEREFORE AN APPROPRIATE OCCASION
FOR TAXING THE TRANSACTION TO THE ESTATE OF THE INSURED.  CF. TYLER V.
UNITED STATES, 281 U.S. 497, 503, 504. 

THERE IS NO INCONSISTENCY BETWEEN SUCH A VIEW OF THE TAXABLE EVENT
AND THE BASIC DEFINITION OF THE SUBJECT OF THE TAX IN SECTION 810. 
"OBVIOUSLY, THE WORD 'TRANSFER' IN THE STATUTE, OR THE PRIVILEGE WHICH
MAY CONSTITUTIONALLY BE TAXED, CANNOT BE TAKEN IN SUCH A RESTRICTED
SENSE AS TO REFER ONLY TO THE PASSING OF PARTICULAR ITEMS OF PROPERTY
DIRECTLY FROM THE DECEDENT TO THE TRANSFEREE.  IT MUST ...  AT LEAST
INCLUDE THE TRANSFER OF PROPERTY PROCURED THROUGH EXPENDITURES BY THE
DECEDENT WITH THE PURPOSE, EFFECTED AT HIS DEATH, OF HAVING IT PASS TO
ANOTHER."  CHASE NATIONAL BANK V. UNITED STATES, 278 U.S. 327, 337. 

IT MAKES NO DIFFERENCE THAT THE PAYMENT OF PREMIUMS OCCURRED DURING
THE LIFETIME OF THE INSURED AND INDIRECTLY EFFECTED AN INTER VIVOS
TRANSFER OF PROPERTY TO THE OWNER OF THE POLICY RIGHTS.  CONGRESS CAN
PROPERLY IMPOSE EXCISE TAXES ON WHOLLY INTER VIVOS GIFTS.  BROMLEY V.
MCCAUGHN, 280 U.S. 124.  IT MAY IMPOSE AN ESTATE TAX ON INTER VIVOS
TRANSFERS LOOKING TOWARD DEATH.  MILLIKEN V. UNITED STATES, 283 U.S.
15.  SURELY, THEN, IT MAY IMPOSE SUCH A TAX ON THE FINAL STEP - THE
MATURING OF THE RIGHT TO PROCEEDS - IN A PARTLY INTER VIVOS TRANSACTION
COMPLETED BY DEATH.  THE QUESTION IS NOT WHETHER THERE HAS BEEN, IN THE
STRICT SENSE OF THE WORD, A "TRANSFER" OF PROPERTY OWNED BY THE
DECEDENT AT THE TIME OF HIS DEATH, BUT WHETHER "THE DEATH HAS BROUGHT
INTO BEING OR RIPENED FOR THE SURVIVOR, PROPERTY RIGHTS OF SUCH
CHARACTER AS TO MAKE APPROPRIATE THE IMPOSITION OF A TAX UPON THAT
RESULT  ...  ."  TYLER V. UNITED STATES, SUPRA, AT 503. 

THEREFORE, THIS TAX, LAID ON THE "RIPENING," AT DEATH, OF RIGHTS PAID
FOR BY THE DECEDENT, IS NOT A DIRECT TAX WITHIN THE MEANING OF THE
CONSTITUTION.  CF. CHASE NATIONAL BANK V. UNITED STATES, SUPRA;
FERNANDEZ V. WIENER, 326 U.S. 340; TYLER V. UNITED STATES, SUPRA;
UNITED STATES V. JACOBS, 306 U.S. 363.  (FN7) 

FURTHER OBJECTIONS TO THE STATUTE AS APPLIED IN THIS CASE ARE
PREDICATED ON THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

IT IS SAID THAT THE STATUTE OPERATES RETROACTIVELY.  BUT THE TAXABLE
EVENT - THE MATURING OF THE POLICIES AT DEATH - OCCURRED LONG AFTER THE
ENACTMENT OF SECTION 811(G)(2)(A) IN 1942.  MOREOVER, THE PAYMENT OF
ALL BUT A FEW OF THE PREMIUMS IN QUESTION OCCURRED AFTER THE EFFECTIVE
DATE OF THE STATUTE, AND THOSE FEW WERE PAID DURING THE PERIOD AFTER
JANUARY 10, 1941, WHEN REGULATIONS GAVE THE INSURED FAIR NOTICE OF THE
LIKELY TAX CONSEQUENCES.  SEE T.D. 5032, 1941-1 CUM. BULL.  427.  (FN8)
THEREFORE, THE STATUTE CANNOT BE SAID TO BE RETROACTIVE IN ITS IMPACT. 
IT IS NOT MATERIAL THAT THE POLICIES WERE PURCHASED AND THE POLICY
RIGHTS WERE ASSIGNED BEFORE THE STATUTE WAS ENACTED.  THE TAX IS NOT
LAID ON THE CREATION OR TRANSFER OF THE POLICY RIGHTS, AND IT "DOES NOT
OPERATE RETROACTIVELY MERELY BECAUSE SOME OF THE FACTS OR CONDITIONS
UPON WHICH ITS APPLICATION DEPENDS CAME INTO BEING PRIOR TO THE
ENACTMENT OF THE TAX."  UNITED STATES V. JACOBS, SUPRA, AT 367. 

THE TAXPAYER ARGUES, HOWEVER, THAT THE ENACTMENT OF THE STATUTE
SUBJECTED THE INSURED TO A CHOICE BETWEEN UNPLEASANT ALTERNATIVES:  "HE
COULD STOP PAYING THE PREMIUMS - IN WHICH CASE THE POLICIES WOULD BE
DESTROYED; OR, HE COULD CONTINUE PAYING PREMIUMS - IN WHICH CASE THEY
WOULD BE INCLUDED IN HIS ESTATE."  BUT WHEN HE GAVE AWAY THE POLICY
RIGHTS, THE POSSIBILITY THAT HE WOULD EVENTUALLY BE FACED WITH THAT
CHOICE WAS AN OBVIOUS RISK, IN VIEW OF THE ADMINISTRATIVE HISTORY OF
THE "PAYMENT OF PREMIUMS" TEST.  SEE 1 PAUL, FEDERAL ESTATE AND GIFT
TAXATION, SEC. 10.13.  THE EXECUTOR SHOULD NOT COMPLAIN BECAUSE HIS
DECEDENT GAMBLED AND LOST.  AND, WHILE IT MAY BE TRUE THAT THE INSURED
COULD HAVE AVOIDED THE TAX ONLY AT THE PRICE OF A LOSS ON AN INVESTMENT
ALREADY MADE, THAT FACT ALONE DOES NOT PROVE THAT THE LAWMAKERS DID "A
WHOLLY ARBITRARY THING," OR THAT THEY "FOUND EQUIVALENCE WHERE THERE
WAS NONE," OR THAT THEY "LAID A BURDEN UNRELATED TO PRIVILEGE OR
BENEFIT."  BURNET V. WELLS, 289 U.S. 670, 679.  WITHOUT SUCH A SHOWING,
IT CANNOT BE HELD THAT THE TAX OFFENDS DUE PROCESS.  REVERSED. 

FN1  THESE PROVISIONS WERE ENACTED, THROUGH AMENDMENT OF SEC. 811(G),
BY SEC. 404(A) OF THE REVENUE ACT OF 1942, 56 STAT. 798, 944.  AS
AMENDED, SEC. 811 PROVIDES IN PERTINENT PART THAT: 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR
PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED, EXCEPT REAL
PROPERTY SITUATED OUTSIDE OF THE UNITED STATES: 

     *         *         *         *         * 

"(G)  PROCEEDS OF LIFE INSURANCE. 

"(1)  RECEIVABLE BY THE EXECUTOR.  - TO THE EXTENT OF THE AMOUNT
RECEIVABLE BY THE EXECUTOR AS INSURANCE UNDER POLICIES UPON THE LIFE OF
THE DECEDENT. 

"(2)  RECEIVABLE BY OTHER BENEFICIARIES.  - TO THE EXTENT OF THE
AMOUNT RECEIVABLE BY ALL OTHER BENEFICIARIES AS INSURANCE UNDER
POLICIES UPON THE LIFE OF THE DECEDENT (A) PURCHASED WITH PREMIUMS, OR
OTHER CONSIDERATION, PAID DIRECTLY OR INDIRECTLY BY THE DECEDENT, IN
PROPORTION THAT THE AMOUNT SO PAID BY THE DECEDENT BEARS TO THE TOTAL
PREMIUMS PAID FOR THE INSURANCE, OR (B) WITH RESPECT TO WHICH THE
DECEDENT POSSESSED AT HIS DEATH ANY OF THE INCIDENTS OF OWNERSHIP,
EXERCISABLE EITHER ALONE OR IN CONJUNCTION WITH ANY OTHER PERSON  ...
." 

FN2  SEC. 404(C), REVENUE ACT OF 1942, 56 STAT. 798, 945.  SECTION
404(C) PROVIDES THAT: 

"THE AMENDMENTS MADE BY SUBSECTION (A) (SEE NOTE 1, SUPRA) SHALL BE
APPLICABLE ONLY TO ESTATES OF DECEDENTS DYING AFTER THE DATE OF THE
ENACTMENT OF THIS ACT (OCTOBER 21, 1942); BUT IN DETERMINING THE
PROPORTION OF THE PREMIUMS OR OTHER CONSIDERATION PAID DIRECTLY OR
INDIRECTLY BY THE DECEDENT (BUT NOT THE TOTAL PREMIUMS PAID) THE AMOUNT
SO PAID BY THE DECEDENT ON OR BEFORE JANUARY 10, 1941, SHALL BE
EXCLUDED IF AT NO TIME AFTER SUCH DATE THE DECEDENT POSSESSED AN
INCIDENT OF OWNERSHIP IN THE POLICY." 

JANUARY 10, 1941, WAS THE EFFECTIVE DATE OF A TREASURY REGULATION,
T.D. 5032, 1941-1 CUM.  BULL.  427, WHICH PROVIDED FOR USE OF THE
"PAYMENT OF PREMIUMS" TEST UNDER SEC. 811(G) AS IT EXISTED PRIOR TO THE
1942 AMENDMENTS, SEE NOTE 1, SUPRA, REGARDLESS OF WHETHER THE DECEDENT
RETAINED ANY INCIDENTS OF OWNERSHIP.  THE REGULATION ALSO PROVIDED,
HOWEVER, THAT PREMIUMS PAID BY THE DECEDENT BEFORE ITS EFFECTIVE DATE
WERE TO BE EXCLUDED IF THE DECEDENT DID NOT THEREAFTER POSSESS ANY
INCIDENTS OF OWNERSHIP. 

IT SHOULD BE NOTED THAT THE "PAYMENT OF PREMIUMS" TEST WAS ABANDONED
IN THE 1954 CODE, WHICH REVERTED TO THE EXCLUSIVE USE OF THE "INCIDENTS
OF OWNERSHIP" TEST.  SEE 26 U.S.C. SEC. 2042. 

FN3  SEE NOTE 2, SUPRA. 

FN4  ARTICLE I, SEC. 2, PROVIDES IN PERTINENT PART THAT: 

"REPRESENTATIVES AND DIRECT TAXES SHALL BE APPORTIONED AMONG THE
SEVERAL STATES WHICH MAY BE INCLUDED WITHIN THIS UNION, ACCORDING TO
THEIR RESPECTIVE NUMBERS  ...  ." 

ARTICLE I, SEC. 9, PROVIDES IN PERTINENT PART THAT: 

"NO CAPITATION, OR OTHER DIRECT, TAX SHALL BE LAID, UNLESS IN
PROPORTION TO THE CENSUS OR ENUMERATION HEREIN BEFORE DIRECTED TO BE
TAKEN." 

FN5  THIS RESULT IS IN ACCORD WITH KOHL V. UNITED STATES, 226 F.2D
381 (C.A. 7TH CIR.), THE REASONING OF WHICH THE DISTRICT COURT
"ADOPTED" AS ITS OWN.  AS THE DISTRICT COURT RECOGNIZED, KOHL IS IN
CONFLICT WITH ESTATE OF LOEB V. COMMISSIONER, 261 F.2D 232 (C.A.2D
CIR.), AFFIRMING 29 T.C. 22; SCHWARZ V. UNITED STATES, 170 F. SUPP. 2;
CF. COLONIAL TRUST CO. V. KRAEMER, 63 F. SUPP. 866; ESTATE OF BAKER V.
COMMISSIONER, 30 T.C. 776. 

FN6  COMPARE SEC. 201 OF THE REVENUE ACT OF 1916, 39 STAT. 756, 777,
WITH SEC. 810 OF THE INTERNAL REVENUE CODE OF 1939, 53 STAT. 120.  IN
THE 1954 CODE, THE WORD "TAXABLE" WAS SUBSTITUTED FOR THE WORD "NET" IN
THIS PROVISION.  26 U.S.C. SEC. 2001. 

FN7  OUR VIEW OF THE NATURE OF THE TAXABLE EVENT HERE INVOLVED MAKES
IT UNNECESSARY TO DISCUSS UNITED STATES V. BESS, 357 U.S. 51, AND OTHER
SIMILAR CASES RELIED ON BY THE DISTRICT COURT.  NOR DO WE FIND IT
NECESSARY TO CONSIDER AT LENGTH LEWELLYN V. FRICK, 268 U.S. 238, OR ITS
PROGENY.  THE COURT IN FRICK DID NOT REACH THE CONSTITUTIONAL ISSUE. 
FN8  WE DO NOT AGREE WITH THE HOLDING IN KOHL V. UNITED STATES, 226
F.2D 381, THAT T.D. 5032 "TRANSCENDED" SEC. 811(G) AS IT EXISTED IN
1941 AND THAT IT WAS THEREFORE "ILLEGAL AND VOID."  T.D. 5032, IN
EFFECT, CONSTRUED THE CONTROLLING LANGUAGE IN THE EARLIER STATUTE -
"TAKEN OUT BY THE DECEDENT," 53 STAT. 122 - AS MEANING PAID FOR BY THE
INSURED.  SUCH A CONSTRUCTION WAS CLEARLY NOT UNREASONABLE.    MR.
JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS
CASE. 
..END :























PENNSYLVANIA RAILROAD CO. V. UNITED STATES 363 U.S. 202 


NO. 451.  ARGUED MAY 17, 1960.  - DECIDED JUNE 13, 1960.  - REVERSED. 


A RAILROAD SUED IN THE COURT OF CLAIMS TO RECOVER FROM THE UNITED
STATES THE DIFFERENCE BETWEEN ITS "DOMESTIC RATES" AND ITS "EXPORT
RATES" ON CERTAIN SHIPMENTS OF IRON AND STEEL INTENDED FOR EXPORT BUT
WHICH ACTUALLY WERE NOT EXPORTED BECAUSE OF WAR CONDITIONS.  THE COURT
OF CLAIMS SUSPENDED PROCEEDINGS TO ENABLE THE PARTIES TO HAVE THE
INTERSTATE COMMERCE COMMISSION PASS ON THE REASONABLENESS OF THE
RATES.  AFTER HEARINGS, THE COMMISSION FOUND AND REPORTED THAT THE
DOMESTIC RATES WERE "UNJUST AND UNREASONABLE" AS TO 62 OF THE SHIPMENTS
BUT "JUST AND REASONABLE" AS TO 13 OF THEM.  THE RAILROAD THEN INVOKED
THE JURISDICTION OF A FEDERAL DISTRICT COURT UNDER 28 U.S.C. SECS.
1336, 1398 AND 49 U.S.C. SEC. 17(9) TO ENJOIN AND SET ASIDE THE
COMMISSION'S ORDER, AND IT MOVED THAT THE COURT OF CLAIMS STAY ITS
PROCEEDINGS UNTIL THE DISTRICT COURT COULD PASS UPON THE VALIDITY OF
THE ORDER.  HELD:  THE RAILROAD WAS ENTITLED TO HAVE THE COMMISSION'S
ORDER JUDICIALLY REVIEWED; ONLY THE DISTRICT COURT HAD JURISDICTION TO
REVIEW IT; AND THE COURT OF CLAIMS SHOULD HAVE STAYED ITS PROCEEDINGS
PENDING REVIEW OF THE COMMISSION'S ORDER BY THE DISTRICT COURT.  PP.
202-206. 

PENNSYLVANIA RAILROAD CO. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE POWER OF DISTRICT COURTS TO REVIEW INTERSTATE
COMMERCE COMMISSION ORDERS DETERMINING THE REASONABLENESS OF RATES. 

IN 1941 AND 1942 THE UNITED STATES MADE 75 SHIPMENTS OF IRON AND
STEEL OVER THE PENNSYLVANIA RAILROAD INTENDED FOR EXPORT FROM THE PORT
OF NEW YORK TO GREAT BRITAIN.  WAR CONDITIONS PREVENTED EXPORTATION
FROM NEW YORK.  THIS CAUSED A DISPUTE ABOUT APPLICABLE TRANSPORTATION
CHARGES SINCE THE PENNSYLVANIA HAD IN EFFECT TARIFFS FOR "DOMESTIC
RATES" THAT WERE HIGHER THAN "EXPORT RATES."  SINCE THE GOODS WERE NOT
EXPORTED AS PLANNED THE RAILROAD BILLED THE UNITED STATES FOR THE
HIGHER DOMESTIC RATES WHICH THE GOVERNMENT PAID BECAUSE REQUIRED TO DO
SO BY SEC. 322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, 49
U.S.C. SEC. 66.  LATER, UNDER AUTHORITY OF THE SAME SECTION, THE
GENERAL ACCOUNTING OFFICE DEDUCTED FROM OTHER BILLS DUE THE RAILROAD
THE DIFFERENCE BETWEEN THE HIGHER AND LOWER RATES, CLAIMING THAT THE
HIGHER DOMESTIC RATES WERE INAPPLICABLE, UNREASONABLE AND UNLAWFUL. 
THE RAILROAD THEN BROUGHT THIS ACTION IN THE COURT OF CLAIMS TO RECOVER
THE AMOUNT DEDUCTED. 

PROPERLY RELYING ON OUR HOLDING IN UNITED STATES V. WESTERN PACIFIC
R. CO., 352 U.S. 59, 62-70, THE COURT OF CLAIMS SUSPENDED PROCEEDINGS
TO ENABLE THE PARTIES TO HAVE THE INTERSTATE COMMERCE COMMISSION PASS
ON THE REASONABLENESS OF THE RATES.  AFTER HEARINGS THE COMMISSION
FOUND AND REPORTED THAT THE DOMESTIC RATES WERE "UNJUST AND
UNREASONABLE" AS TO 62 OF THE SHIPMENTS BUT "JUST AND REASONABLE" AS TO
13.  305 I.C.C. 259, 265.  THE RAILROAD THEN TOOK TWO STEPS TO
CHALLENGE THAT PART OF THE ORDER ADVERSE TO IT:  (1) IT INVOKED THE
JURISDICTION OF A UNITED STATES DISTRICT COURT IN PENNSYLVANIA UNDER 28
U.S.C. SECS. 1336, 1398, AND 49 U.S.C. SEC. 17(9) TO ENJOIN AND SET
ASIDE THE ORDER; AND (2) IT MOVED THAT THE COURT OF CLAIMS STAY ITS
PROCEEDINGS UNTIL THE DISTRICT COURT COULD PASS UPON THE VALIDITY OF
THE ORDER.  THE UNITED STATES OBJECTED TO FURTHER STAY IN THE COURT OF
CLAIMS AND ASKED FOR DISMISSAL OF THE CASE OR JUDGMENT IN ITS FAVOR. 
IT URGED IN SUPPORT OF DISMISSAL THAT THE RAILROAD HAD DEPRIVED THE
COURT OF CLAIMS OF JURISDICTION WHEN IT FILED THE DISTRICT COURT ACTION
TO ENJOIN THE COMMISSION ORDER BECAUSE 28 U.S.C. SEC. 1500 DECLARES
THAT "THE COURT OF CLAIMS SHALL NOT HAVE JURISDICTION OF ANY CLAIM FOR
OR IN RESPECT TO WHICH THE PLAINTIFF ...  HAS PENDING IN ANY OTHER
COURT ANY SUIT OR PROCESS AGAINST THE UNITED STATES  ...  ."  THE COURT
OF CLAIMS REJECTED THIS CONTENTION AND ITS ACTION IN THIS RESPECT IS
NOT CHALLENGED HERE. 

THE UNITED STATES ARGUED IN SUPPORT OF ITS MOTION FOR JUDGMENT THAT
THE ORDER OF THE COMMISSION DID NOT REQUIRE ANYTHING TO BE DONE OR NOT
DONE, THAT IT WAS THEREFORE AN ADVISORY OPINION ONLY, AND CONSEQUENTLY
NOT THE KIND OF "ORDER" SUBJECT TO REVIEW BY 28 U.S.C. SEC. 1336, 49
U.S.C.  SEC. 17(9), OR ANY OTHER PROVISION OF LAW.  THE CONTENTION OF
THE UNITED STATES WAS THAT ALTHOUGH THE COURT OF CLAIMS WAS COMPELLED
TO SUBMIT THE QUESTION OF THE REASONABLENESS OF THE RATES TO THE
COMMISSION, NEITHER THAT COURT NOR ANY OTHER COURT HAD POWER TO REVIEW
THE COMMISSION'S DETERMINATION.  THE COURT OF CLAIMS AGREED WITH THIS
CONTENTION OF THE UNITED STATES, ACCORDINGLY REFUSED TO STAY THE CASE
FOR THE DISTRICT COURT TO PASS ON THE VALIDITY OF THE ORDER, AND
ENTERED JUDGMENT FOR THE RAILROAD FOR ONLY $1,663.39, WHICH THE
COMMISSION HAD HELD TO BE RECOVERABLE, INSTEAD OF THE $7,237.87 WHICH
THE RAILROAD CLAIMED.  THE RESULT IS THAT THE RAILROAD HAS BEEN HELD
BOUND BY THE COMMISSION'S ORDER ALTHOUGH COMPLETELY DENIED ANY JUDICIAL
REVIEW OF THAT ORDER.  WE GRANTED CERTIORARI TO CONSIDER THIS DENIAL. 
361 U.S. 922. 

THE RAILROAD CONTENDS THAT IT WAS ERROR FOR THE COURT OF CLAIMS TO
REFUSE TO STAY ITS PROCEEDINGS WHILE THE DISTRICT COURT REVIEWED THE
COMMISSION'S ORDER.  THE SOLICITOR GENERAL CONCEDES HERE THAT THIS WAS
ERROR.  WE REACH THE SAME CONCLUSION ON THE BASIS OF OUR INDEPENDENT
CONSIDERATION OF THE RECORD.  WE DECIDED SOME YEARS AGO THAT WHILE A
MERE "ABSTRACT DECLARATION" ON SOME ISSUE BY THE COMMISSION MAY NOT BE
JUDICIALLY REVIEWABLE, AN ORDER THAT DETERMINES A "RIGHT OR OBLIGATION"
SO THAT "LEGAL CONSEQUENCES" WILL FLOW FROM IT IS REVIEWABLE. 
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 131, 132,
143.  THE RECORD SHOWS THAT THE COMMISSION ORDER HERE MEETS THIS
STANDARD.  THE COMMISSION FOUND THAT THE RAILROAD'S DOMESTIC RATES WERE
"UNREASONABLE" AS TO 62 SHIPMENTS.  THIS ORDER IS BY NO MEANS A MERE
"ADVISORY OPINION," ITS "LEGAL CONSEQUENCES" ARE OBVIOUS, FOR IF VALID
IT FORECLOSES THE "RIGHT" OF THE RAILROAD TO RECOVER ITS DOMESTIC RATES
ON THOSE SHIPMENTS.  WE HAVE HELD THAT JUDICIAL REVIEW IS EQUALLY
AVAILABLE WHETHER A COMMISSION ORDER RELATES TO PAST OR FUTURE RATES,
OR WHETHER ITS PROCEEDING FOLLOWS REFERRAL BY A COURT OR ORIGINATES
WITH THE COMMISSION.  EL DORADO OIL WORKS V. UNITED STATES, 328 U.S.
12. 

FOR THESE REASONS WE CONCLUDE THAT THE RAILROAD WAS ENTITLED TO HAVE
THIS COMMISSION ORDER JUDICIALLY REVIEWED.  WE HAVE ALREADY DETERMINED,
HOWEVER, THAT THE POWER TO REVIEW SUCH AN ORDER CANNOT BE EXERCISED BY
THE COURT OF CLAIMS.  UNITED STATES V. JONES, 336 U.S. 641, 651-653,
670-671.   THAT JURISDICTION IS VESTED EXCLUSIVELY IN THE DISTRICT
COURTS.  28 U.S.C.  SEC. 1336, 49 U.S.C. SEC. 17(9).  SEE SEABOARD AIR
LINE R. CO. V. DANIEL, 333 U.S. 118, 122.  MOREOVER, THIS ORDER IS
PROPERLY REVIEWABLE BY A ONE-JUDGE RATHER THAN A THREE-JUDGE DISTRICT
COURT BECAUSE IT IS ESSENTIALLY ONE "FOR THE PAYMENT OF MONEY" WITHIN
THE TERMS OF 28 U.S.C.  SECS. 2321 AND 2325, WHICH EXEMPT SUCH ORDERS
FROM THE THREE-JUDGE PROCEDURE OF 28 U.S.C.  SEC. 2284.  UNITED STATES
V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426, 441, 443.  IT NECESSARILY
FOLLOWS, OF COURSE, THAT SINCE THE RAILROAD HAD A RIGHT TO HAVE THE
COMMISSION'S ORDER REVIEWED, AND ONLY THE DISTRICT COURT HAD THE
JURISDICTION TO REVIEW IT, THE COURT OF CLAIMS WAS UNDER A DUTY TO STAY
ITS PROCEEDINGS PENDING THIS REVIEW. 

OTHER QUESTIONS ARGUED BY THE GOVERNMENT ARE NOT PROPERLY PRESENTED
BY THIS RECORD. 

IT WAS ERROR FOR THE COURT OF CLAIMS TO RENDER JUDGMENT ON THE BASIS
OF THE COMMISSION'S ORDER WITHOUT SUSPENDING ITS PROCEEDINGS TO AWAIT
DETERMINATION OF THE VALIDITY OF THAT ORDER BY THE PENNSYLVANIA
DISTRICT COURT.  REVERSED. 
..END :






CLAY V. SUN INSURANCE OFFICE LIMITED 363 U.S. 207 


NO. 349.  ARGUED MARCH 22-23, 1960.  - DECIDED JUNE 13, 1960.  - 265
F.2D 522, JUDGMENT VACATED AND CAUSE REMANDED. 


WHILE A CITIZEN AND RESIDENT OF ILLINOIS, PETITIONER PURCHASED THERE
FROM RESPONDENT, AN INSURANCE COMPANY LICENSED TO DO BUSINESS IN
ILLINOIS AND FLORIDA, AN INSURANCE POLICY COVERING "ALL RISKS" OF LOSS
OR DAMAGE TO CERTAIN PERSONAL PROPERTY HAVING NO FIXED SITUS.  AFTER
MOVING TO FLORIDA, PETITIONER SUSTAINED LOSSES THERE ON WHICH
RESPONDENT DENIED LIABILITY.  MORE THAN 12 MONTHS AFTER DISCOVERY OF
THE LOSSES, PETITIONER SUED RESPONDENT IN A FEDERAL DISTRICT COURT IN
FLORIDA, BASING JURISDICTION ON DIVERSITY OF CITIZENSHIP.  THAT COURT
AWARDED A JUDGMENT TO PETITIONER AFTER RULING THAT, (1) UNDER FLORIDA
LAW, THE LOSSES WERE NOT EXCLUDED FROM "ALL RISKS" COVERAGE IF THEY
WERE CAUSED BY DELIBERATE ACTS OF PETITIONER'S WIFE, AND (2) THE SUIT
WAS NOT BARRED BY A PROVISION IN THE POLICY THAT SUIT ON ANY CLAIM FOR
LOSS MUST BE BROUGHT WITHIN 12 MONTHS OF DISCOVERY OF THE LOSS,
APPARENTLY BECAUSE A FLORIDA STATUTE FORBADE ENFORCEMENT OF SUCH A
CLAUSE.  WITHOUT PASSING ON THESE ISSUES OF LOCAL LAW, THE COURT OF
APPEALS REVERSED, ON THE GROUND THAT FLORIDA COULD NOT, CONSISTENTLY
WITH THE REQUIREMENTS OF DUE PROCESS, APPLY ITS STATUTE TO THE "SUITS
CLAUSE" OF THIS CONTRACT MADE IN ILLINOIS, WHERE SUCH A CLAUSE IS
VALID.  HELD:  THE COURT OF APPEALS SHOULD NOT HAVE PASSED ON THE
CONSTITUTIONAL QUESTION WITHOUT FIRST PASSING ON THE TWO ISSUES OF
LOCAL LAW AND NOT UNLESS ITS DECISION ON THOSE ISSUES MADE A DECISION
ON THE CONSTITUTIONAL QUESTION NECESSARY.  PP. 208-212. 

CLAY V. SUN INSURANCE OFFICE LIMITED. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN 1952, PETITIONER, WHILE A CITIZEN AND RESIDENT OF ILLINOIS,
PURCHASED FROM RESPONDENT IN ILLINOIS THE CONTRACT OF INSURANCE UPON
WHICH THIS SUIT IS BASED.  THE RESPONDENT IS A BRITISH COMPANY LICENSED
TO DO BUSINESS IN ILLINOIS, FLORIDA, AND NINE OTHER STATES. 

THE POLICY, WHICH PETITIONER BOUGHT FOR A LUMP SUM, RAN FOR THREE
YEARS.  DESIGNATED A "PERSONAL PROPERTY FLOATER POLICY (WORLD WIDE),"
IT PROVIDES WORLD-WIDE COVERAGE AGAINST "ALL RISKS" OF LOSS OR DAMAGE
TO THE PROPERTY COVERED, PROPERTY GENERALLY CLASSIFIED AS PERSONAL
PROPERTY HAVING NO FIXED SITUS.  A PROVISION OF THE POLICY, WHICH HAS
GIVEN RISE TO THIS CONTROVERSY, REQUIRED THAT SUIT ON ANY CLAIM FOR
LOSS MUST BE BROUGHT WITHIN TWELVE MONTHS OF THE DISCOVERY OF THE
LOSS. 

SOME MONTHS AFTER PURCHASING THE POLICY THE PETITIONER MOVED TO
FLORIDA, WHERE HE BROUGHT THIS SUIT FOR LOSSES SUSTAINED IN FLORIDA IN
THE WINTER OF 1954-1955.  PETITIONER REPORTED THE LOSSES TO THE
RESPONDENT ON FEBRUARY 1, 1955, AND ON APRIL 1, 1955, RESPONDENT DENIED
LIABILITY. 

THE ACTION, RESTING ON DIVERSITY OF CITIZENSHIP, WAS INSTITUTED IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
ON MAY 20, 1957, MORE THAN TWO YEARS AFTER DISCOVERY OF THE LOSSES. 
THE RESPONDENT DEFENDED ON TWO GROUNDS:  (1) THAT UNDER THE TIME
LIMITATION FOR BRINGING SUIT, A RESTRICTION CONCEDEDLY VALID UNDER
ILLINOIS LAW, THE SUIT WAS BARRED; AND (2) THAT THE "ALL RISKS"
COVERAGE OF THE POLICY DOES NOT INCLUDE THE LOSSES RESULTING FROM
WILLFUL INJURY TO OR APPROPRIATION OF THE INSURED PROPERTY BY THE
INSURED'S SPOUSE.  (FN1)  THE JURY WAS CHARGED THAT IF THE LOSSES WERE
CAUSED BY THE DELIBERATE ACTS OF PETITIONER'S WIFE, THEY WERE NOT
THEREFORE EXCLUDED FROM COVERAGE.  THE JURY FOUND FOR PETITIONER, AND
JUDGMENT IN THE AMOUNT OF $6,800 WAS ENTERED.  THE DISTRICT COURT,
WITHOUT OPINION, DENIED A MOTION FOR JUDGMENT NON OBSTANTE VEREDICTO,
WHICH WAS BASED, INTER ALIA, UPON THE SUIT CLAUSE, APPARENTLY BELIEVING
THAT FLORIDA STATUTES (1957) SEC. 95.03, WHICH IS SET OUT IN THE
MARGIN, (FN2) RENDERED THE CLAUSE INEFFECTIVE. 

ON APPEAL THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED (ONE
JUDGE DISSENTING), SUSTAINING THE DEFENSE BASED UPON THE SUIT CLAUSE ON
THE GROUND THAT FLORIDA COULD NOT APPLY ITS STATUTE TO THIS ILLINOIS
MADE CONTRACT CONSISTENTLY WITH THE REQUIREMENTS OF DUE PROCESS.  265
F.2D 522.  THE COURT CONSIDERED THE PRELIMINARY QUESTION OF STATE LAW -
WHETHER THE FLORIDA STATUTE, SEC. 95.03, IN FACT APPLIES TO A CONTRACT
MADE IN THESE CIRCUMSTANCES.  STRANGELY ENOUGH, IT DID NOT DECIDE THIS
THRESHOLD QUESTION BECAUSE IT APPARENTLY FOUND IT EASIER TO DECIDE THE
CONSTITUTIONAL QUESTION THAT WOULD BE PRESENTED ONLY IF THE STATUTE DID
APPLY.  SUCH DISPOSITION OF A SERIOUS CONSTITUTIONAL ISSUE JUSTIFIED
BRINGING THE CASE HERE.  361 U.S. 874. 

BY THE SETTLED CANONS OF CONSTITUTIONAL ADJUDICATION THE
CONSTITUTIONAL ISSUE SHOULD HAVE BEEN REACHED ONLY IF, AFTER DECISION
OF TWO NON-CONSTITUTIONAL QUESTIONS, DECISION WAS COMPELLED.  THE LOWER
COURT SHOULD HAVE FIRST CONSIDERED:  (1) WHETHER, UNDER THE LAW OF
FLORIDA, SEC. 95.03 IS APPLICABLE TO THIS CONTRACT; AND (2) WHETHER THE
LOSSES SUED UPON WERE WITHIN THE "ALL RISKS" COVERAGE OF THE POLICY IF
IN FACT CAUSED BY PETITIONER'S WIFE. 

IT WOULD BE A TEMERARIOUS MAN WHO DESCRIBED THE CONSTITUTIONAL
QUESTION DECIDED BELOW AS FRIVOLOUS.  THE SERIOUSNESS OF THE QUESTION
BECOMES MANIFEST FROM A RECITAL OF THE DECISIONS OF THIS COURT RELEVANT
TO THE DETERMINATION OF THE ISSUE ON WHICH THE COURT BELOW PASSED. 

IN HOME INSURANCE CO. V. DICK, 281 U.S. 397, THE COURT HELD THAT
TEXAS COULD NOT CONSTITUTIONALLY APPLY ITS OWN LAW TO INVALIDATE A SUIT
CLAUSE IN A CONTRACT OF FIRE INSURANCE COVERING A TUGBOAT.  THE
PLAINTIFF WAS AT ALL PERTINENT TIMES BOTH A TEXAS DOMICILIARY AND A
RESIDENT OF MEXICO.  THE CONTRACT, OF WHICH HE WAS AN ASSIGNEE, WAS
MADE IN MEXICO BETWEEN A MEXICAN INSURER WHICH HAD NO CONTACT WHATEVER
WITH TEXAS, AND A MEXICAN RESIDENT.  THE PREMIUM WAS PAID IN MEXICO,
AND THE POLICY COVERED THE TUG ONLY WHILE IT WAS IN MEXICAN WATERS.  IN
HARTFORD ACCIDENT & INDEMNITY CO. V. DELTA & PINE LAND CO., 292 U.S.
143, THE COURT HELD THAT MISSISSIPPI COULD NOT CONSTITUTIONALLY APPLY
ITS OWN LAW TO INVALIDATE A CONTRACT CLAUSE LIMITING THE INSURER'S
LIABILITY ON A SURETY BOND AGAINST DEFALCATIONS BY THE INSURED'S
EMPLOYEES "IN ANY POSITION, ANYWHERE," TO LOSSES OF WHICH NOTICE WAS
GIVEN WITHIN FIFTEEN MONTHS AFTER THE TERMINATION OF COVERAGE.  THE
CONTRACT WAS MADE IN TENNESSEE WHERE THE INSURED HAD OFFICES AND THE
INSURER WAS LICENSED TO DO BUSINESS.  MISSISSIPPI'S ACTION WAS STRUCK
DOWN ALTHOUGH THE CONTRACT COVERED AN AMBULATORY RISK, THE DEFAULT
GIVING RISE TO THE CLAIM ACTUALLY OCCURRED IN MISSISSIPPI, THE INSURER
WAS UNDER LICENSE DOING BUSINESS THERE, AND THE INSURED WAS
INCORPORATED THERE. 

THE MOST RECENT CASE IN THE SERIES IS WATSON V. EMPLOYERS LIABILITY
ASSURANCE CORP., LTD., 348 U.S. 66.  WITHOUT QUESTIONING EITHER DICK,
OR DELTA & PINE, THE COURT SUSTAINED LOUISIANA'S APPLICATION, IN A SUIT
BY A LOUISIANA CITIZEN, OF ITS OWN "DIRECT ACTION" STATUTE ALTHOUGH
THEREBY IT INVALIDATED AN EXPRESS PROVISION AGAINST DIRECT LIABILITY OF
THE INSURER IN A CONTRACT NEGOTIATED AND PAID FOR WITHIN ILLINOIS AND
MASSACHUSETTS, IN BOTH OF WHICH THE CLAUSE WAS VALID.  THE CONTRACT
INSURED TONI, AN ILLINOIS CORPORATION DISTRIBUTING ITS PRODUCT
NATIONALLY, AGAINST LIABILITIES ARISING FROM THE USE OF THE PRODUCT. 
THE INSURER WAS A BRITISH CORPORATION LICENSED TO DO BUSINESS IN
SEVERAL STATES, INCLUDING MASSACHUSETTS, ILLINOIS AND LOUISIANA.  TONI
HAD NO CONTACT WITH LOUISIANA AND COULD NOT BE SERVED THERE.  THE
LOUISIANA PLAINTIFF HAD SUSTAINED HER INJURY IN LOUISIANA.  THE COURT
FOUND LOUISIANA'S CONTACT WITH THE SUBJECT JUSTIFIED ITS APPLICATION OF
THE STATUTE TO MAKE AN INSURER DOING BUSINESS IN LOUISIANA AMENABLE TO
SUIT BY A LOCALLY INJURED CITIZEN. 

THE RELEVANT FACTORS OF THE PRESENT CASE ARE NOT IDENTIC EITHER WITH
DICK, OR DELTA & PINE, OR WATSON, AND NOT ONE OF THEM CAN FAIRLY BE
DEEMED CONTROLLING HERE.  THE BEARING OF ALL THREE ON THE IMMEDIATE
SITUATION WOULD HAVE TO BE CONSIDERED AND APPROPRIATELY EVALUATED IN
ADJUDICATING THE PRECISE CONSTITUTIONAL ISSUE PRESENTED BY IT, WERE
THAT ISSUE INESCAPABLY BEFORE US.  THE DISPOSITION OF EITHER OF TWO
UNRESOLVED STATE LAW QUESTIONS MAY SETTLE THIS LITIGATION.  THE COURT
OF APPEALS WAS THEREFORE NOT CALLED UPON INITIALLY TO REACH THIS
CONSTITUTIONAL QUESTION; NOR IS THIS COURT.  THE DOCTRINE THAT THE
COURT WILL NOT "ANTICIPATE A QUESTION OF CONSTITUTIONAL LAW IN ADVANCE
OF THE NECESSITY OF DECIDING IT," LIVERPOOL, N.Y. & P.S.S. CO. V.
EMIGRATION COMMISSIONERS, 113 U.S. 33, 39, RELIED ON BY MR. JUSTICE
BRANDEIS IN HIS WELL-KNOWN CONCURRING OPINION IN ASHWANDER V. T.V.A.,
297 U.S. 288, 347-348, IS A WELL-SETTLED DOCTRINE OF THIS COURT WHICH,
BECAUSE IT CARRIES A SPECIAL WEIGHT IN MAINTAINING PROPER HARMONY IN
FEDERAL-STATE RELATIONS, MUST NOT YIELD TO THE CLAIM OF THE RELATIVELY
MINOR INCONVENIENCE OF POSTPONEMENT OF DECISION.  OF COURSE WE DO NOT
REMOTELY HINT AT AN ANSWER TO A QUESTION THAT IS PREMATURELY PUT. 

WHILE BOTH QUESTIONS NOT DISPOSED OF BY THE COURT OF APPEALS ARE
QUESTIONS OF LOCAL LAW, THE QUESTION WHETHER UNDER FLORIDA LAW SEC.
95.03 IS APPLICABLE TO THIS CONTRACT IS ONE ON WHICH THE STATE COURT'S
DETERMINATION IS CONTROLLING.  BUT, AS THE COURT OF APPEALS INDICATED,
IT COULD NOT, ON THE AVAILABLE MATERIALS, MAKE A CONFIDENT GUESS HOW
THE FLORIDA SUPREME COURT WOULD CONSTRUE THE STATUTE.  SEE, E.G.,
HOAGLAND V. RAILWAY EXPRESS AGENCY, 75 SO. 2D 822; EQUITABLE LIFE
ASSURANCE SOCIETY V. MCREE, 75 FLA. 257.  THE FLORIDA LEGISLATURE, WITH
RARE FORESIGHT, HAS DEALT WITH THE PROBLEM OF AUTHORITATIVELY
DETERMINING UNRESOLVED STATE LAW INVOLVED IN FEDERAL LITIGATION BY A
STATUTE WHICH PERMITS A FEDERAL COURT TO CERTIFY SUCH A DOUBTFUL
QUESTION OF STATE LAW TO THE SUPREME COURT OF FLORIDA FOR ITS
DECISION.  FLA. STAT. ANN., 1957, SEC.  25.031.  (FN3)  EVEN WITHOUT
SUCH A FACILITATING STATUTE WE HAVE FREQUENTLY DEEMED IT APPROPRIATE,
WHERE A FEDERAL CONSTITUTIONAL QUESTION MIGHT BE MOOTED THEREBY, TO
SECURE AN AUTHORITATIVE STATE COURT'S DETERMINATION OF AN UNRESOLVED
QUESTION OF ITS LOCAL LAW.  SEE ALLEGHENY COUNTY V. MASHUDA CO., 360
U.S. 185, 189, AND CASES CITED; SEE ALSO MEREDITH V. WINTER HAVEN, 320
U.S. 228, 236.  VACATED AND REMANDED. 

FN1  CERTAIN PROPERTY WAS TAKEN FROM HIS HOME.  OTHER PROPERTY,
CLOTHING WAS BURNED, AND A PAINTING WAS SLASHED. 

FN2  "ALL PROVISIONS AND STIPULATIONS CONTAINED IN ANY CONTRACT
WHATEVER  ...  FIXING THE PERIOD OF TIME IN WHICH SUITS MAY BE
INSTITUTED UNDER ANY SUCH CONTRACT  ...  AT A PERIOD OF TIME LESS THAN
THAT PROVIDED BY THE STATUTE OF LIMITATIONS OF THIS STATE, ARE HEREBY
DECLARED  ...  TO BE ILLEGAL AND VOID.  NO COURT IN THIS STATE SHALL
GIVE EFFECT TO ANY PROVISION OR STIPULATION OF THE CHARACTER MENTIONED
IN THIS SECTION."  SECTION 95.11(3) PROVIDES A FIVE-YEAR LIMITATION FOR
ACTIONS ON WRITTEN CONTRACTS NOT UNDER SEAL. 

FN3  THE STATUTE PROVIDES THAT THE SUPREME COURT OF FLORIDA MAY
DEVISE RULES TO GOVERN SUCH CERTIFICATIONS; IT APPEARS THAT TO DATE
SUCH RULES HAVE NOT BEEN PROMULGATED.  SEE KURLAND, TOWARD A CO
OPERATIVE JUDICIAL FEDERALISM, 24 F.R.D. 481, 489.  IT IS NOT TO BE
ASSUMED, HOWEVER, THAT SUCH RULES ARE A JURISDICTIONAL REQUIREMENT FOR
THE ENTERTAINMENT BY THE FLORIDA SUPREME COURT OF A CERTIFICATE UNDER
SEC. 25.031. 

MR. JUSTICE BLACK, WHOM THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS
JOIN, DISSENTING. 

THE COURT TODAY HOLDS THAT THIS COURT AND THE FEDERAL COURTS BELOW
MUST REFRAIN FROM EXERCISING THEIR JURISDICTION TO DECIDE THIS LAWSUIT
PROPERLY BROUGHT.  IT REMANDS THE CASE TO THE COURT OF APPEALS AND
IMPLIES THAT A STATE COURT SHOULD BE THE ONE TO DETERMINE TWO QUESTIONS
OF STATE LAW TO AVOID A FEDERAL CONSTITUTIONAL QUESTION WHICH IS ALSO
PRESENTED.  IN SO DOING, I BELIEVE THIS COURT IS CARRYING THE DOCTRINE
OF AVOIDING CONSTITUTIONAL QUESTIONS TO A WHOLLY UNJUSTIFIABLE
EXTREME.  I AGREE THAT IT IS FREQUENTLY BETTER NOT TO DECIDE
CONSTITUTIONAL QUESTIONS WHEN DECISION OF NONCONSTITUTIONAL QUESTIONS
ALSO PRESENTED WILL DISPOSE OF A CASE.  BUT I DO NOT AGREE THAT THIS IS
SUCH AN OCCASION.  THE STATE LAW QUESTIONS DO NOT CALL FOR FIRST
INTERPRETATION OF A BROAD, MANY-PRONGED, STATE REGULATORY SCHEME. 
(FN1)  THEY DO NOT INVOLVE PECULIARLY LOCAL QUESTIONS SUCH AS THE
EMINENT DOMAIN POWER A STATE HAS ALLOWED A CITY TO EXERCISE, (FN2) OR
THE LOCAL LAND LAW OF A STATE.  (FN3)  NOR ARE THE STATE QUESTIONS HERE
DIFFICULT ONES DEPENDING ON AMBIGUOUS OR VAGUE STATE LAW, (FN4) BUT
INSTEAD THEY BORDER ON THE FRIVOLOUS.  SINCE I THINK THE ANSWER TO THE
CONSTITUTIONAL QUESTION ALSO IS CLEAR, I BELIEVE WE SHOULD DECIDE ALL
THE QUESTIONS IN THE CASE.  THE COURT'S REFUSAL TO DO SO, TOGETHER WITH
THE LANGUAGE IT USES, SEEMS TO ME TO BE AN AUTOMATIC APPLICATION OF
"CANONS OF CONSTITUTIONAL ADJUDICATION" SO ABSOLUTE THAT A FEDERAL
COURT CAN NEVER UNDER ANY CIRCUMSTANCES OR CONDITIONS DECIDE A
CONSTITUTIONAL QUESTION IF THERE IS ANY POSSIBILITY OF TURNING A CASE
AWAY ON OTHER GROUNDS.  I BELIEVE THAT THERE ARE TIMES WHEN A
CONSTITUTIONAL QUESTION IS SO IMPORTANT THAT IT SHOULD BE DECIDED EVEN
THOUGH JUDICIAL INGENUITY WOULD FIND A WAY TO ESCAPE IT.  I WOULD
DECIDE THIS CASE HERE AND NOW. 

THE FIRST STATE QUESTION IS WHETHER, UNDER STATE INTERPRETATION, THE
CLAUSE OF THIS INSURANCE POLICY WHICH INSURES THE PETITIONER AGAINST
"ALL RISKS," PROTECTS HIM AGAINST DESTRUCTION AND LOSS OF PROPERTY
CAUSED BY HIS WIFE.  (FN5)  THE POLICY DOES NOT INTIMATE ANY EXCEPTION
TO ITS COVERAGE FOR SUCH A RISK ALTHOUGH IT HAS PAGES OF SMALL PRINTED
TYPE STATING ITS EXTENSIONS, LIMITATIONS, EXCLUSIONS AND GENERAL
CONDITIONS.  THE UNITED STATES DISTRICT JUDGE WHO TRIED THIS CASE,
EXPERIENCED IN FLORIDA LAW, NOT SURPRISINGLY PAID SCANT ATTENTION TO
THIS CONTENTION.  NO CASE IN WHICH WE HAVE EVER "ABSTAINED" FROM
PASSING ON DIFFICULT STATE QUESTIONS OFFERS THE FAINTEST SUPPORT FOR
THE HOLDING THAT A CONTENTION SO UNLIKELY TO BE SUSTAINED ANYWHERE CAN
BE USED AS A REASON TO AVOID PASSING ON A CONSTITUTIONAL QUESTION, EVEN
ONE MUCH MORE SERIOUS THAN I SEE THE ONE HERE TO BE. 

THE SECOND STATE QUESTION THAT THE COURT IS SENDING BACK, WITH THE
SUGGESTION THAT THE COURT OF APPEALS SHOULD REFER IT TO THE FLORIDA
SUPREME COURT FOR DECISION, IS ALMOST EQUALLY DEVOID OF PLAUSIBILITY. 
A FLORIDA STATE STATUTE PROVIDES THAT ALL CONTRACTUAL PROVISIONS FIXING
A PERIOD OF TIME IN WHICH SUITS MAY BE BROUGHT UNDER SUCH CONTRACT AT A
PERIOD OF TIME LESS THAN THAT PROVIDED BY THE STATUTE OF LIMITATIONS OF
FLORIDA ARE ILLEGAL AND VOID.  THE STATUTE ALSO FORBIDS ANY COURT IN
FLORIDA TO "GIVE EFFECT TO ANY PROVISION OR STIPULATION OF THE
CHARACTER MENTIONED IN THIS SECTION."  (FN6)  SINCE THE CONTRACT OF
INSURANCE HERE PROVIDED FOR A PERIOD OF LIMITATION SHORTER THAN THE
STATE'S FIVE-YEAR PERIOD FOR UNSEALED, WRITTEN CONTRACTS, (FN7) THIS
CONTRACTUAL PROVISION WOULD BE VOID UNDER THE FLORIDA STATUTE IF IT
APPLIES.  (FN8)  THE ONLY WAY TO GET AMBIGUITY INTO THIS SECTION IS TO
IMPORT IT.  STATUTES OF A SIMILAR NATURE EXIST IN 31 STATES AND THE
DISTRICT OF COLUMBIA.  (FN9)  THEY ARE IN LINE WITH THE PROTECTIVE
SAFEGUARDS THAT STATES HAVE FELT IT NECESSARY TO CREATE SO AS TO
PRESERVE A FAIR OPPORTUNITY FOR PEOPLE WHO HAVE BOUGHT AND PAID FOR
INSURANCE TO GO TO COURT AND COLLECT IT.  AND STATE COURTS IN THE MAIN
HAVE INTERPRETED AND APPLIED SUCH STATUTES SO AS TO CARRY OUT THE
LEGISLATIVE POLICY ADOPTED.  (FN10)  FLORIDA'S PARTICULAR INTEREST IN
THIS VERY STATUTE IS SHOWN BY THE FACT THAT THE ATTORNEY GENERAL OF THE
STATE FILED BRIEFS AND PARTICIPATED IN ORAL ARGUMENT TO SUPPORT BOTH
THE FULL MEANING PETITIONER CLAIMED FOR THE STATUTE AND ITS
CONSTITUTIONALITY WHEN SO INTERPRETED.  I SEE NO REASON TO SEND THIS
PARTICULAR QUESTION BACK TO THE COURT OF APPEALS, MUCH LESS,
ULTIMATELY, TO THE STATE COURT.  THE STATUTE'S PLAIN LANGUAGE, ITS
INTERPRETATION BY THE EXPERIENCED TRIAL JUDGE WHO SAT ON THE CASE AND
ITS INTERPRETATION BY THE ATTORNEY GENERAL OF THE STATE SHOULD BE
SUFFICIENT TO SHOW TO EVEN THE MOST DOUBTFUL THAT THIS STATE LAW
APPLIES TO THIS PRINTED PROVISION OF THE CONTRACT AND REQUIRES THE
COMPANY TO TRY THIS LAWSUIT ON ITS MERITS (UNLESS, OF COURSE, THE
STATUTE IS UNCONSTITUTIONAL WHEN SO APPLIED).  I THINK NO CLOUD SHOULD
BE CAST ON THE STATUTE'S CLEAR MEANING AND I CERTAINLY DO NOT THINK IT
IS NECESSARY TO POINT OUT TO THE FLORIDA COURT THAT IT ALSO COULD, IF
IT WISHED, AVOID THE CONSTITUTIONAL QUESTION THE COURT MAKES SO MUCH OF
BY LIMITING THE MEANING THE FLORIDA LEGISLATURE OBVIOUSLY INTENDED TO
GIVE THIS STATUTE.  (FN11)  IF "MAINTAINING PROPER HARMONY IN FEDERAL
STATE RELATIONS" IS THE OBJECTIVE OF THE COURT, I WOULD THINK IT BEST
TO GIVE THIS STATUTE ITS PLAIN MEANING AND TO SETTLE THE
CONSTITUTIONALITY OF THIS STATUTE FLORIDA PASSED (ACCORDING TO ITS
ATTORNEY GENERAL) TO PROTECT ITS PEOPLE. 

I NOW COME TO THE CONSTITUTIONAL QUESTION WHICH IS AVOIDED AND WHICH
I WOULD DECIDE.  THIS INSURANCE CONTRACT WAS MADE IN THE STATE OF
ILLINOIS.  THERE ARE ILLINOIS CASES INDICATING THAT THE CONTRACTUAL
PROVISION SHORTENING THE ILLINOIS STATE STATUTE OF LIMITATIONS MIGHT BE
TREATED AS VALID IN A COURT OF THAT STATE.  (FN12)  THERE ARE NO CASES,
HOWEVER, INDICATING THAT ILLINOIS WANTED TO PROJECT ITS LAW INTO THE
STATE OF FLORIDA SO AS TO NULLIFY A FLORIDA LAW INVALIDATING SUCH
CONTRACTUAL PROVISIONS IN FLORIDA COURTS.  (FN13)  THE CONSTITUTIONAL
QUESTION RAISED IS THIS.  SINCE THE POLICY'S RESTRICTIVE PROVISION
WOULD PROBABLY BE UPHELD IN ILLINOIS COURTS IN A SUIT ON AN ILLINOIS
CONTRACT, DOES EITHER THE DUE PROCESS CLAUSE OR THE FULL FAITH AND
CREDIT CLAUSE REQUIRE FLORIDA TO PAY IT HOMAGE? 

THE FLORIDA STATUTE IS, IN MY JUDGMENT, CONSTITUTIONAL AS APPLIED BY
THE DISTRICT COURT IN THIS CASE.  I BELIEVE IT VIOLATES NEITHER THE DUE
PROCESS CLAUSE NOR THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION.  THERE WAS A TIME IN THE EVOLUTION OF CONFLICT OF LAWS
THEORIES WHEN THE IDEA WAS CHAMPIONED THAT EVERY DETAIL AND ELEMENT OF
A CONTRACT, EVERY ACTION TAKEN UNDER IT, WAS GOVERNED BY THE LAW OF THE
PLACE WHERE THE CONTRACT WAS MADE.  THIS CONCEPT RAN INTO MANY
DIFFICULTIES.  WAS THE CONTRACT MADE AT THE HOME OFFICE OF AN INSURANCE
COMPANY OR AT THE PLACE WHERE AN AGENT DROPPED IT IN THE MAIL TO SEND
IT TO A MAN IN ANOTHER STATE?  EXCEPTIONS SPRANG UP SUCH AS THE RULE
APPLYING THE LAW OF THE PLACE WHERE THE CONTRACT WAS TO BE PERFORMED TO
ISSUES OF PERFORMANCE.  SOON IT WAS DISCOVERED THAT IT WAS ALMOST AS
PUZZLING TO TELL WHERE A CONTRACT WAS INTENDED TO BE PERFORMED OR WHAT
PART OF ACTIVITIES UNDER A CONTRACT COULD BE CONSIDERED PERFORMANCE AS
IT HAD BEEN TO DETERMINE WHERE A CONTRACT WAS MADE.  THESE AND OTHER
SUCH ACADEMIC PROBLEMS DISSIPATED THE DREAM OF A FIXED RULE OR RULES
FOR DECIDING WHICH LAW GOVERNED CONTRACT CASES.  AS THE CONCEPTS
DEVELOPED, THERE CAME AN EMPHASIS UPON HAVING A CONTRACT GOVERNED BY
THE LAW WHICH THE PARTIES INTENDED TO BE APPLIED.  BUT IT WAS NOT
ALWAYS POSSIBLE TO TELL WHICH LAW THE PARTIES HAD AGREED UPON, AND
THERE WAS RESISTANCE ON THE PART OF SOME JURISDICTIONS HAVING CLOSE
INTERESTS IN THE EVENTS LEADING TO LITIGATION TO APPLYING FOREIGN LAW,
AGAINST THEIR DEEPLY FELT POLICIES, SOLELY BECAUSE THE PARTIES AT ONE
TIME PREFERRED IT. 

AS BUSINESS BOOMED THROUGHOUT OUR GROWING COUNTRY GIVING MORE STATES
THAN ONE AN INTEREST IN WHAT A CONTRACT MEANT AND HOW IT SHOULD BE
ENFORCED FOR THE BENEFIT OF THE CITIZENS WHO MADE IT OR FOR WHOSE
BENEFIT IT WAS MADE, PRACTICAL MEN BEGAN TO SEE THAT THERE COULD NOT BE
ONE SINGLE RULE OF LAW TO GOVERN A CONTRACT IN WHICH THE CITIZENS OF
MANY STATES WERE INTERESTED.  ONE OF THE MANY OPINIONS OF THIS COURT
RECOGNIZING THAT FACT WAS PACIFIC EMPLOYERS INS. CO. V. INDUSTRIAL
ACCIDENT COMM'N, 306 U.S. 493, IN WHICH MR. JUSTICE STONE, LATER CHIEF
JUSTICE, STATED THAT: 

"THE CONCLUSION IS UNAVOIDABLE THAT THE FULL FAITH AND CREDIT CLAUSE
DOES NOT REQUIRE ONE STATE TO SUBSTITUTE FOR ITS OWN STATUTE,
APPLICABLE TO PERSONS AND EVENTS WITHIN IT, THE CONFLICTING STATUTE OF
ANOTHER STATE, EVEN THOUGH THAT STATUTE IS OF CONTROLLING FORCE IN THE
COURTS OF THE STATE OF ITS ENACTMENT WITH RESPECT TO THE SAME PERSONS
AND EVENTS."  ID., AT 502. 

LATER, IN KLAXON CO. V. STENTOR ELECTRIC MFG. CO., 313 U.S. 487, AND
IN GRIFFIN V. MCCOACH, 313 U.S. 498, THIS COURT RECOGNIZED THAT THE
COURTS OF A STATE ARE NOT COMPELLED TO ENFORCE ALL PROVISIONS OF ALL
CONTRACTS, BUT HAVE MUCH FREEDOM TO EXERCISE THEIR OWN STATE POLICY IN
THEIR OWN COURTS.  SEE ALSO PINK V. AAA HIGHWAY EXPRESS, 314 U.S. 201;
HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313.  (FN14) 

AFTER THESE AND A HOST OF OTHER CASES RECOGNIZING THE CONSTITUTIONAL
POWER OF STATES TO APPLY THEIR OWN LAWS IN MANY WAYS TO CONTRACTS MADE
OUTSIDE THE STATE, WE DECIDED WATSON V. EMPLOYERS LIABILITY ASSURANCE
CORP., 348 U.S. 66.  THAT CASE INVOLVED A LAW OF LOUISIANA WHICH
PROVIDED THAT INJURED PERSONS COULD BRING DIRECT ACTIONS AGAINST
LIABILITY INSURANCE COMPANIES THAT HAD ISSUED POLICIES CONTRACTING TO
PAY JUDGMENTS IMPOSED AGAINST PERSONS WHO HAD INFLICTED THE INJURIES. 
THE INSURANCE CONTRACT IN THAT CASE, HOWEVER, CONTAINED A CLAUSE,
BINDING AND ENFORCEABLE UNDER THE LAW OF THE PLACES WHERE THE CONTRACT
WAS MADE AND DELIVERED, THAT PROHIBITED DIRECT ACTION AGAINST THE
INSURANCE COMPANY UNTIL AFTER FINAL DETERMINATION OF THE INSURED'S
OBLIGATION TO PAY DAMAGES.  A PERSON INJURED IN LOUISIANA BY AN INSURED
COMPANY SUED THE INSURANCE COMPANY THERE DIRECTLY.  APPLICATION OF THE
LOUISIANA LAW WAS CHALLENGED AS AN UNCONSTITUTIONAL DENIAL OF EQUAL
PROTECTION, DUE PROCESS, FULL FAITH AND CREDIT, AND AN UNCONSTITUTIONAL
IMPAIRMENT OF CONTRACT.  WE REJECTED ALL THESE CONTENTIONS.  THE POLICY
OF INSURANCE THERE, LIKE THE ONE HERE, WAS TO BE GIVEN NATION-WIDE
EFFECT.  WE HELD THERE, MR. JUSTICE FRANKFURTER DISAGREEING WITH THE
GROUNDS OF THE COURT'S OPINION, THAT NONE OF THE PROVISIONS OF THE
CONSTITUTION RELIED ON REQUIRES STATES AUTOMATICALLY TO SUBORDINATE
THEIR OWN CONTRACT LAWS TO THE LAWS OF OTHER STATES IN WHICH CONTRACTS
HAPPENED TO HAVE BEEN EXECUTED.  WE SAID: 

"WHERE, AS HERE, A CONTRACT AFFECTS THE PEOPLE OF SEVERAL STATES,
EACH MAY HAVE INTERESTS THAT LEAVE IT FREE TO ENFORCE ITS OWN CONTRACT
POLICIES."  ID., AT 73. 

IN THE WATSON CASE WE ALSO REJECTED A CONTENTION THAT THE CASES
RELIED ON BY THE COURT HERE AS THROWING A CLOUD UPON THE FLORIDA
STATUTE, HARTFORD ACCIDENT & INDEMNITY CO. V. DELTA & PINE LAND CO.,
292 U.S. 143, AND HOME INS. CO. V. DICK, 281 U.S. 397, REQUIRED THAT WE
HOLD LOUISIANA'S LAW UNCONSTITUTIONAL.  THE REASONS WE GAVE FOR
REJECTING THE CONTENTION ABOUT THOSE CASES THERE APPLY EQUALLY TO THE
FLORIDA STATUTE HERE.  IN THE DICK CASE THE COURT'S OPINION CAREFULLY
POINTED OUT THAT THE DECISION IN THAT CASE MIGHT HAVE BEEN DIFFERENT
HAD ACTIVITIES RELATING TO THE CONTRACT THERE HELD BINDING IN TEXAS
BEEN CARRIED ON IN THAT STATE.  AND IN THE DELTA & PINE LAND CO. CASE,
WE POINTED OUT THAT THE COURT HAD CONSIDERED THAT THE MISSISSIPPI
ACTIVITIES IN CONNECTION WITH THE POLICY SUED ON THERE WERE FOUND TO BE
SO "SLIGHT" AND SO "CASUAL" THAT MISSISSIPPI COULD NOT APPLY ITS OWN
LAW.  I, MYSELF, HAVE GRAVE DOUBTS THAT THE DELTA & PINE LAND CO. CASE
WOULD BE TREATED THE SAME WAY TODAY ON ITS FACTS.  BUT HOWEVER THAT MAY
BE, AS IT STANDS, IT DOES NOT REQUIRE A HOLDING THAT FLORIDA'S LAW IS
UNCONSTITUTIONAL.  IF THOUGHT TO SUGGEST SUCH A HOLDING, IT ONLY MEANS
THAT WE SHOULD DECIDE THIS CASE TO REMOVE ANY SUCH SUGGESTION ONCE AND
FOR ALL.  THE ONLY PHILOSOPHY ON WHICH THE DICK AND DELTA & PINE LAND
CO. CASES COULD BE MADE TO APPLY HERE WOULD BE ON THE OLD IDEA THAT THE
LAW OF THE PLACE WHERE THE CONTRACT IS MADE ALWAYS GOVERNS EVERY
ACTIVITY UNDER IT, A RULE THAT HAD BEEN REPUDIATED BY COURTS AND
COMMENTATORS EVERYWHERE, ESPECIALLY AS A CONSTITUTIONAL RULE.   (FN15) 

OUR LATER CASES PREVIOUSLY DISCUSSED EXPRESS THE ONLY WORKABLE RULE
FOR THIS COUNTRY TODAY.  (FN16)  INSURANCE COMPANIES, LIKE OTHER
CONTRACTORS, DO NOT CONFINE THEIR CONTRACTUAL ACTIVITIES AND
OBLIGATIONS WITHIN STATE BOUNDARIES.  THEY SELL TO CUSTOMERS WHO ARE
PROMISED PROTECTION IN STATES FAR AWAY FROM THE PLACE WHERE THE
CONTRACT IS MADE.  IN THIS VERY CASE THE POLICY WAS SOLD TO CLAY WITH
KNOWLEDGE THAT HE COULD TAKE HIS PROPERTY ANYWHERE IN THE WORLD HE SAW
FIT WITHOUT LOSING THE PROTECTION OF HIS INSURANCE.  IN FACT, HIS
CONTRACT WAS DESCRIBED ON ITS FACE AS A "PERSONAL PROPERTY FLOATER
POLICY (WORLD WIDE)."  THE CONTRACT DID NOT EVEN ATTEMPT TO PROVIDE
THAT THE LAW OF ILLINOIS WOULD GOVERN WHEN SUITS WERE FILED ANYWHERE
ELSE IN THE COUNTRY.  SHORTLY AFTER THE CONTRACT WAS MADE, CLAY MOVED
TO FLORIDA AND THERE HE LIVED FOR SEVERAL YEARS.  HIS INSURED PROPERTY
WAS THERE ALL THAT TIME.  THE COMPANY KNEW THIS FACT.  PARTICULARLY
SINCE THE COMPANY WAS LICENSED TO DO BUSINESS IN FLORIDA, IT MUST HAVE
KNOWN IT MIGHT BE SUED THERE, AND THAT FLORIDA COURTS WOULD FEEL BOUND
BY FLORIDA LAW. 

IN ADDITION TO THE REASONS ALREADY GIVEN FOR MY VIEW THAT FLORIDA LAW
CONSTITUTIONALLY MAY GOVERN THIS CASE - THAT FLORIDA, THE FORUM STATE,
HAS SUFFICIENT CONTACTS WITH THE PARTIES, THE PROPERTY INSURED AND THE
LAWSUIT - I WOULD ADD THAT WHEN A CONTRACTUAL PROVISION IS ONE DEALING
WITH LIMITATIONS ON ACTIONS, IT IS PARTICULARLY INAPPROPRIATE TO COMPEL
THE FORUM STATE, AS A CONSTITUTIONAL MATTER, TO APPLY THE LAW OF THE
PLACE WHERE THE CONTRACT WAS "MADE."  THIS COURT HAS LONG RECOGNIZED
THAT THE STATES WHERE LAWSUITS ARE TRIED ARE FREE TO APPLY THEIR OWN
STATUTES OF LIMITATIONS.  THIS HAS BEEN THE CONSTITUTIONAL RULE SINCE
THE DECISION IN 1839 OF M'ELMOYLE V. COHEN, 13 PET. 312.  THE CONTINUED
VITALITY OF THIS PRINCIPLE WAS RECOGNIZED BY THE COURT IN WELLS V.
SIMONDS ABRASIVE CO., 345 U.S. 514, 516-517.  THE ONLY DEVIATION FROM
IT APPEARS TO HAVE BEEN ORDER OF UNITED COMMERCIAL TRAVELERS V. WOLFE,
331 U.S. 586, WHICH APPLIED A SPECIAL RULE FREEING FRATERNAL INSURANCE
COMPANIES BECAUSE OF THEIR "INDIVISIBLE UNITY," A DISTINCTION TO WHICH
I REGISTERED MY DISSENT.  IT IS TRUE THAT THIS CASE IS NOT IDENTICAL
WITH ONE IN WHICH THE FORUM SEEKS TO APPLY AN ORDINARY STATUTE OF
LIMITATIONS TO A SUIT ON A CONTRACT HAVING NO LIMITATION CLAUSE.  HERE,
FLORIDA, SEEKING TO BE SURE THAT ITS OWN LIMITATION RULES AND NO OTHERS
APPLY TO CASES IN ITS COURTS, HAS LEGISLATED THAT CONTRACTUAL
LIMITATIONS OF TOO SHORT DURATION ARE INVALID.  THE COURT OF APPEALS
CALLED IT ERROR TO ASSUME "THAT THE ISSUE PRESENTED CONCERNED THE
CHOICE OF THE APPLICABLE STATUTE OF LIMITATIONS RATHER THAN THE CHOICE
OF THE SUBSTANTIVE LAW GOVERNING THE VALIDITY OF THE CONTRACT ITSELF." 
BUT THE SAME REASONS FOR THE VIEW THAT THE FORUM MAY REFUSE TO APPLY A
FOREIGN STATUTE OF LIMITATIONS IMPEL ME TO THE VIEW THAT THE FORUM MAY
REFUSE TO APPLY A FOREIGN CONTRACT OF LIMITATIONS.  SEE ORDER OF UNITED
COMMERCIAL TRAVELERS V. WOLFE, 331 U.S. 586, 627-630 (DISSENTING
OPINION).  AND CF. METROPOLITAN CAS. INS. CO. V. BROWNELL, 294 U.S.
580. 

THE COURT, HOWEVER, SAYS THAT THERE IS A SERIOUS CONSTITUTIONAL
QUESTION WHETHER FLORIDA CAN APPLY ITS OWN LAW HERE.  THEREFORE, THE
COURT REFUSES TO DECIDE THE QUESTION (AND THE RELATED STATE QUESTIONS)
ON THE GROUND, AS I READ THE OPINION, THAT THERE EXISTS AN UNBENDING,
UNYIELDING, AUTOMATIC CANON OF CONSTITUTIONAL ADJUDICATION THAT IF A
CONSTITUTIONAL QUESTION IS NOT "FRIVOLOUS," THE COURT MUST AVOID IT,
UNLESS DECISION IS "COMPELLED" AFTER DISPOSITION OF ALL
NONCONSTITUTIONAL QUESTIONS.  IN FACT, THE COURT INDICATES THAT WHEN A
CONSTITUTIONAL QUESTION LURKS IN THE CASE, NOT EVEN THE LOWER FEDERAL
COURTS SITTING IN DIVERSITY JURISDICTION SHOULD DECIDE THE
NONCONSTITUTIONAL QUESTIONS.  (FN17)  OF COURSE, THIS VIEW IS NOT
UNPRECEDENTED ALTOGETHER; IT IS IN MY OPINION, HOWEVER, WHOLLY
UNPRECEDENTED IN A CASE SUCH AS THIS.  I AGREE THAT THERE IS A JUDICIAL
PRACTICE, WISE PERHAPS IN MOST INSTANCES, UNDER WHICH COURTS DO NOT
ORDINARILY DECIDE CONSTITUTIONAL QUESTIONS UNLESS ESSENTIAL TO A
DECISION OF THE CASE.  (FN18)  THIS PRACTICE EXTENDS BACK TO THE EARLY
DAYS OF THE COUNTRY.  BUT EVEN THE GREATEST OF OUR JUDGES HAVE NOT
ALWAYS FOLLOWED IT AS A RIGID RULE.  PERHAPS HAD THEY DONE SO THE GREAT
OPINION OF CHIEF JUSTICE MARSHALL IN MARBURY V. MADISON WOULD NEVER
HAVE BEEN WRITTEN.  (FN19)  ONLY IF THE PRACTICE OF OCCASIONALLY
AVOIDING DECISION OF A CONSTITUTIONAL QUESTION IS FIRST MADE INTO A
RULE AND THEN ELEVATED TO A POSITION OF ABSOLUTENESS DENIED BY SOME
EVEN TO CONSTITUTIONAL COMMANDS THEMSELVES, ARE WE WISE IN AVOIDING
DECISION HERE.  ON THE OTHER HAND, IF THE POWER TO AVOID DECIDING
CONSTITUTIONAL ISSUES IS DISCRETIONARY, AS I THINK IT UNDOUBTEDLY IS, I
BELIEVE THAT THIS IS NOT A PROPER CASE FOR ITS EXERCISE.    SUCH A
RIGID, IRONCLAD, ALL-ENCOMPASSING RULE AS I UNDERSTAND THE COURT TO
PROMULGATE HERE IS, IN MY JUDGMENT, BAD FOR THE LITIGANTS, BAD FOR THE
COURTS, AND BAD FOR THE COUNTRY.  LITIGANTS HAVE A RIGHT TO HAVE THEIR
LAWSUITS DECIDED WITHOUT UNREASONABLE AND UNNECESSARY DELAY OR
EXPENSE.  (FN20) THERE COME TIMES, IN MY JUDGMENT, WHEN A
CONSTITUTIONAL QUESTION IS SO RIPE FOR DECISION, WHEN ITS RESOLUTION IS
SO MUCH NEEDED, THAT IT WOULD BE PROPER TO DECIDE THE CONSTITUTIONAL
QUESTION EVEN THOUGH THERE MIGHT BE A POSSIBILITY OR EVEN A PROBABILITY
THAT BY SENDING A CASE BACK SOME NONCONSTITUTIONAL QUESTION MIGHT BE
DECIDED IN A WAY THAT WOULD REMOVE THE CONSTITUTIONAL CONTROVERSY FROM
THAT PARTICULAR CASE.  CF. PETERS V. HOBBY, 349 U.S. 331, 349
(DISSENTING OPINION).   THE FACT THAT ONE CASE PRESENTING THE
CONSTITUTIONAL ISSUE IN SOME CLEAR FORM HAS SURVIVED THE JURISDICTIONAL
AND PRACTICAL OBSTACLES TO ADJUDICATION, THE FACT THAT SUCH AN ISSUE
HAS BEEN TOSSED UP FROM THE MAELSTROM OF TRIALS AND PRIVATE DISPUTES TO
THE HEIGHT OF OUR APPELLATE COURTS, IS ONE SIGN THAT THE ISSUE NEEDS
DECIDING.  HOWEVER THIS PARTICULAR CASE IS OR MAY BE DECIDED, THE
PRESSING NEED FOR DECIDING THIS CONSTITUTIONAL QUESTION WILL REMAIN THE
SAME.  OUR EXPANDING COMMERCE AMONG THE STATES GUARANTEES THAT.  THE
CONSTITUTIONAL QUESTION IS SQUARELY PRESENTED AND THE WAY IT IS DECIDED
WILL HAVE AN IMPORTANT EFFECT ON THE LAWS OF MANY STATES IN ADDITION TO
FLORIDA.  IT IS HERE NOW.  WHY NOT DECIDE IT? SOMETIMES A CONFLICT OF
VIEW AMONG THE CIRCUITS AND AMONG THE STATES ON A CONSTITUTIONAL
QUESTION, LIKE SUCH CONFLICTS ON STATUTES OR COMMON-LAW QUESTIONS,
REACHES SUCH PROPORTIONS THAT THEY CRY OUT FOR AN AUTHORITATIVE
DECISION OF OUR COURT.  AT LEAST IN SUCH INSTANCES I AM NOT WILLING TO
TIE MYSELF DOWN BY A JUDICIALLY CREATED RULE THAT WOULD BAR DECIDING
CONSTITUTIONAL QUESTIONS WHEN THEY GET HERE.  (FN21)  SUBSCRIBING AS I
HAVE TO THE BELIEF THAT THERE IS VIRTUE IN THE POLICY OF NOT
UNNECESSARILY DECIDING CONSTITUTIONAL ISSUES, I THINK IT WOULD BE
BETTER TO ABANDON THAT POLICY ENTIRELY THAN TO CARRY IT TO THE EXTREMES
OF THE COURT'S OPINION TODAY.  IN MY JUDGMENT, THE RULE IN THE RIGID
AND SWEEPING FORM ANNOUNCED HAS NOT BEEN THE RULE HERETOFORE.  IT IS
TRUE THAT SOME DISSENTS MIGHT POSSIBLY HAVE GONE SO FAR, BUT I DO NOT
THINK IT CAN FAIRLY BE SAID THAT THE WHOLE COURT HAS DONE SO.  THAT
THIS COURT HAS NOT HERETOFORE FOLLOWED THE DOGMATIC RULE ANNOUNCED
TODAY IS VERY CLEAR FROM OUR CASE OF CHICAGO V. ATCHISON, T.&S.F.R.
CO., 357 U.S. 77.  CF. UNITED STATES V. SULLIVAN, 332 U.S. 689, 692
694.  IN THE CHICAGO CASE, OVER A STRONG DISSENT, THE MAJORITY OF THE
COURT REFUSED TO AVOID THE CONSTITUTIONAL QUESTION ON THE GROUND THAT
WE SHOULD FIRST WAIT TO HAVE A CITY ORDINANCE INTERPRETED BY ILLINOIS
COURTS.  WE SAID: 

"WE SEE NO AMBIGUITY IN THE SECTION WHICH CALLS FOR INTERPRETATION BY
THE STATE COURTS.  CF. TOOMER V. WITSELL, 334 U.S. 385.  REMISSION TO
THOSE COURTS WOULD INVOLVE SUBSTANTIAL DELAY AND EXPENSE, AND THE
CHANCE OF A RESULT DIFFERENT FROM THAT REACHED BELOW, ON THE ISSUE OF
APPLICABILITY, WOULD APPEAR TO BE SLIGHT."  ID., AT 84. 

THIS WAS A FAIR APPLICATION OF THE CONSTITUTIONAL AVOIDANCE
PRACTICE.  (FN22) 

THE COURT ASSUMES THAT THERE IS IN FLORIDA A METHOD WHICH WILL ENABLE
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT TO OBTAIN A DECISION OF THE
SUPREME COURT OF FLORIDA BY CERTIFYING TO THEM THE TWO QUESTIONS OF
STATE LAW HERE INVOLVED.  FLORIDA DOES HAVE SUCH A LAW ON PAPER, BUT
EVIDENTLY DOES NOT HAVE ONE IN FACT.  THE STATE STATUTE, FIRST PASSED
IN 1945 AND NOW APPEARING AS FLA. STAT. ANN. (1959 SUPP.) SEC. 25.031,
AUTHORIZES THE SUPREME COURT OF FLORIDA TO PROVIDE RULES FOR OBTAINING
SUCH CERTIFICATIONS FROM FEDERAL APPELLATE COURTS, BUT THE BEST
INFORMATION OBTAINABLE IS THAT THE SUPREME COURT OF FLORIDA HAS NEVER
PROMULGATED ANY SUCH RULES, AND EVIDENTLY HAS NEVER ACCEPTED SUCH A
CERTIFICATE.  (FN23) THIS IS NOT DIFFICULT TO UNDERSTAND.  PERHAPS
STATE COURTS TAKE NO MORE PLEASURE THAN DO FEDERAL COURTS IN DECIDING
CASES PIECEMEAL ON CERTIFICATES.  STATE COURTS PROBABLY PREFER TO
DETERMINE THEIR QUESTIONS OF LAW WITH COMPLETE RECORDS OF CASES IN
WHICH THEY CAN ENTER FINAL JUDGMENTS BEFORE THEM.  IT SEEMS RATHER
UNFORTUNATE FOR THIS PETITIONER THAT HE IS TO BE MADE THE GUINEA PIG IN
THE COURT'S EFFORT TO GET THE SUPREME COURT OF FLORIDA TO PUT INTO
EFFECT A LAW THAT IT HAS DELIBERATELY LEFT UNUSED FOR A PERIOD OF 15
YEARS.  (FN24)  THIS SUIT WAS FILED THREE YEARS AGO AND, BORROWING AN
EXPRESSION, IT WOULD BE A "TEMERARIOUS MAN" WHO WOULD FORECAST THAT IT
IS SURE TO GET BACK TO US AGAIN BEFORE THREE MORE YEARS.  THAT WOULD BE
ALL RIGHT IF SUCH AN EXASPERATING DELAY WERE NECESSARY IN ORDER TO
ACHIEVE FAIR AND JUST CONSIDERATION OF THIS CASE.  I DO NOT THINK IT IS
NECESSARY OR JUSTIFIED IN THIS CASE, AND I THINK THE COURT'S HANDLING
OF THE CASE SETS UP A PRECEDENT OF SUCH AN EXTREME NATURE THAT THE RULE
OF AVOIDING CONSTITUTIONAL QUESTIONS MIGHT BEGIN TO PRODUCE MORE EVIL
CONSEQUENCES THAN GOOD. 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

FN1  SEE HARRISON V. NAACP, 360 U.S. 167 (A DECLARATORY JUDGMENT
CASE); RESCUE ARMY V. MUNICIPAL COURT OF LOS ANGELES, 331 U.S. 549;
ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS V. MCADORY, 325 U.S. 472
(DECLARATORY JUDGMENT CASES); AMERICAN FEDERATION OF LABOR V. WATSON,
327 U.S. 582 (PARALLEL ACTION PENDING IN STATE COURT).  AND CF. ALABAMA
PUBLIC SERVICE COMM'N V. SOUTHERN R. CO., 341 U.S. 341; BURFORD V. SUN
OIL CO., 319 U.S. 315; RAILROAD COMM'N OF TEXAS V. PULLMAN CO., 312
U.S. 496 (CASES INVOLVING INJUNCTIONS OR INTERFERENCE WITH STATE
REGULATIONS, LAW OR ADMINISTRATIVE ORDERS). 

FN2  SEE LOUISIANA POWER & LIGHT CO. V. CITY OF THIBODAUX, 360 U.S.
25. 

FN3  SEE THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478. 

FN4  IN CHICAGO V. ATCHISON, T.&S.F.R. CO., 357 U.S. 77, 84,
ALBERTSON V. MILLARD, 345 U.S. 242 (1953), AND TOOMER V. WITSELL, 334
U.S. 385 (1948), IT WAS MADE CLEAR THAT "ABSTENTION WOULD BE IMPROPER
IF THE STATUTE WAS IN FACT REASONABLY CLEAR  ...  ."  NOTE, ABSTENTION:
AN EXERCISE IN FEDERALISM, 108 U. OF PA. L. REV. 226, 233 (1959). 

FN5  THE POLICY STATED UNDER "PERILS INSURED," "ALL RISKS OF LOSS OF
OR DAMAGE TO PROPERTY COVERED EXCEPT AS HEREINAFTER PROVIDED." 

FN6  FLA. STAT., 1957, SEC. 95.03.  RELEVANT PORTIONS OF THE STATUTE
ARE SET FORTH IN NOTE 2 OF THE OPINION OF THE COURT. 

FN7  FLA. STAT. SEC. 95.11(3). 

FN8  THE SUIT CLAUSE IN THE CONTRACT PROVIDED:  "NO SUIT, ACTION OR
PROCEEDING FOR THE RECOVERY OF ANY CLAIM UNDER THIS POLICY SHALL BE
SUSTAINABLE IN ANY COURT OF LAW OR EQUITY UNLESS THE SAME BE COMMENCED
WITHIN TWELVE (12) MONTHS NEXT AFTER DISCOVERY BY THE ASSURED OF THE
OCCURRENCE WHICH GIVES RISE TO THE CLAIM.  PROVIDED, HOWEVER, THAT IF
BY THE LAWS OF THE STATE WITHIN WHICH THIS POLICY IS ISSUED SUCH
LIMITATION IS INVALID, THEN ANY SUCH CLAIMS SHALL BE VOID UNLESS SUCH
ACTION, SUIT OR PROCEEDING BE COMMENCED WITHIN THE SHORTEST LIMIT OF
TIME PERMITTED BY THE LAWS OF SUCH STATE TO BE FIXED HEREIN." 

FN9  SEE STATUTES REFERRED TO IN CARNAHAN, CONFLICT OF LAWS AND LIFE
INSURANCE CONTRACTS (1958), SECS. 26(H), N. 83 AND 137.  ALSO FOUR
STATES HAVE STATUTES DEALING SPECIFICALLY WITH CERTIFICATES OF
FRATERNAL BENEFIT SOCIETIES.  ID., SEC. 26(H), N. 84. 

FN10  SEE, E.G., GALLIHER V. STATE MUTUAL LIFE INS. CO., 150 ALA.
543, 43 SO. 833 (1907); EHRENZWEIG, CONTRACTS IN THE CONFLICT OF LAWS,
59 COL. L. REV. 973, 1000. 

FN11  CF. HARRISON V. NAACP, 360 U.S. 167, 177-178. 

FN12  THE CIRCUIT COURT BELOW CITED TRICHELLE V. SHERMAN & ELLIS,
INC., 259 ILL. APP. 346; HARTZELL V. MARYLAND CAS. CO., 163 ILL. APP.
221.  SUN INS. OFFICE LIMITED V. CLAY, 265 F.2D 522, 524, N. 2. 

FN13  THE ILLINOIS CASES CITED BY THE COURT BELOW AS UPHOLDING
LIMITATION CLAUSES DID NOT DEAL WITH EVENTS SO CONNECTED WITH FOREIGN
JURISDICTIONS, STATUTES OR POLICIES AS WERE THOSE IN THE PRESENT CASE. 
THEY MERELY HELD THAT ILLINOIS COURTS WOULD HONOR LIMITATION CLAUSES IN
ILLINOIS CENTERED CONTROVERSIES.  SEE NOTE 15, INFRA. 

FN14  BUT SEE ORDER OF UNITED COMMERCIAL TRAVELERS V. WOLFE, 331 U.S.
586, IN WHICH AN EXCEPTION WAS MADE WITH REGARD TO POLICIES ISSUED BY A
FRATERNAL BENEFIT SOCIETY. 

FN15  IT HAS BEEN POINTED OUT THAT IF A COURT OF ONE STATE, IN
APPLYING THE RULE THAT THE LAW OF THE PLACE OF MAKING THE CONTRACT
DETERMINES ITS VALIDITY, LOOKS ONLY TO THE INTERNAL LAW AND NOT THE
CONFLICT-OF-LAWS RULES OF THE FOREIGN JURISDICTION, IT ENFORCES THE
RIGHTS NOT OF THE PARTIES IN THE CASE BEFORE IT BUT OF THE PARTIES IN
SOME HYPOTHETICAL CASE.  SEE STUMBERG, CONFLICT OF LAWS, 11-12, 228. 
CONSTITUTIONALLY REQUIRING BLIND AND UNVARYING APPLICATION OF THE
INTERNAL LAW OF THE PLACE OF MAKING IS A RETURN TO OUTMODED TERRITORIAL
AND VESTED RIGHTS THEORIES OF CONFLICT OF LAWS LONG AGO OUTGROWN BY OUR
JURISPRUDENCE. 

AND SEE GENERALLY, ON APPLICATION OF THE LAW OF THE FORUM,
EHRENZWEIG, THE LEX FORI - BASIC RULE IN THE CONFLICT OF LAWS, 58 MICH.
L. REV. 637. 

FN16  SEE ALSO MCGEE V. INTERNATIONAL LIFE INS. CO., 355 U.S. 220;
TRAVELERS HEALTH ASSN. V. VIRGINIA EX REL. STATE CORPORATION COMM'N,
339 U.S. 643; INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310. 

FN17  CF. PENAGARICANO V. ALLEN CORP., 267 F.2D 550, 556 (C.A. 1ST
CIR.) WHERE JUDGE WOODBURY, SPEAKING FOR THE COURT, SAID:  "INDEED THIS
GROUND FOR DECLINING TO EXERCISE JURISDICTION (THE "SALUTARY POLICY OF
REFRAINING FROM THE UNNECESSARY DECISION OF CONSTITUTIONAL QUESTIONS")
HAS BEEN INVOKED IN SO MANY CASES DECIDED BY THE UNITED STATES SUPREME
COURT AS PERHAPS TO GIVE RISE TO SERIOUS DOUBT AS TO WHETHER THE LOWER
COURTS IN FACT HAVE 'DISCRETION' IN THIS MATTER." 

FN18  SEE, E.G., UNITED STATES V. RAINES, 362 U.S. 17, 21 (CITING
BARROWS V. JACKSON, 346 U.S. 249). 

FN19  1 CRANCH 137.  SEE 3 BEVERIDGE, THE LIFE OF JOHN MARSHALL, 132
133, 142; 1 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY, 242
243.  AND SEE COHENS V. VIRGINIA, 6 WHEAT.  264, 404, WHERE CHIEF
JUSTICE MARSHALL SAID:  "IT IS MOST TRUE THAT THIS COURT WILL NOT TAKE
JURISDICTION IF IT SHOULD NOT:  BUT IT IS EQUALLY TRUE, THAT IT MUST
TAKE JURISDICTION IF IT SHOULD.  THE JUDICIARY CANNOT, AS THE
LEGISLATURE MAY, AVOID A MEASURE BECAUSE IT APPROACHES THE CONFINES OF
THE CONSTITUTION  ...  .  WITH WHATEVER DOUBTS, WITH WHATEVER
DIFFICULTIES, A CASE MAY BE ATTENDED, WE MUST DECIDE IT, IF IT BE
BROUGHT BEFORE US." 

FN20  THIS CASE WAS BEGUN IN 1957.  THE DAMAGE WAS SUSTAINED IN LATE
1954 AND EARLY 1955.  IT HAS TAKEN OVER A YEAR TO HAVE THIS COURT RULE
ON THE DECISION OF THE CIRCUIT COURT BELOW.  REMAND, SOME FORM OF
TRANSFER OF PART OR ALL OF THE CASE TO THE STATE COURTS, PROCEEDINGS
THERE AND EITHER APPEAL TO THIS COURT AGAIN OR RETURN TO THE FEDERAL
SYSTEM AND EVENTUALLY RETURN HERE, MIGHT POSSIBLY EVEN TAKE 10 YEARS OR
MORE.  SEE, E.G., THE POST-ABSTENTION HISTORY OF THE WINDSOR AND
SPECTOR CASES IN NOTE, CONSEQUENCES OF ABSTENTION BY A FEDERAL COURT,
73 HARV. L. REV. 1358 (1960). 

FN21  THERE IS A VIEW, ABLY AND CLAMOROUSLY URGED BY MANY, THAT WOULD
CONSIDER THE CANON OF CONSTITUTIONAL AVOIDANCE AS SO BROAD THAT IT
PRACTICALLY WOULD BE IMPOSSIBLE EVER TO REACH A CONSTITUTIONAL
QUESTION.  SHOULD THIS VIEW WHOLLY PREVAIL, THE GREAT DECISION OF
MARBURY V. MADISON, 1 CRANCH 137, MIGHT JUST AS WELL NOT HAVE BEEN
WRITTEN.  IN THAT OPINION CHIEF JUSTICE MARSHALL SAID: 

"THE VERY ESSENCE OF CIVIL LIBERTY CERTAINLY CONSISTS IN THE RIGHT OF
EVERY INDIVIDUAL TO CLAIM THE PROTECTION OF THE LAWS, WHENEVER HE
RECEIVES AN INJURY.  ONE OF THE FIRST DUTIES OF GOVERNMENT IS TO AFFORD
THAT PROTECTION."  ID., AT 163. 

FOR A GENERAL DISCUSSION OF JUDICIAL RESTRAINT AND THIS COURT'S
POWERS OF REVIEW, SEE C.L. BLACK, THE PEOPLE AND THE COURT (1960),
PASSIM, PARTICULARLY C. IV. 

FN22  FIVE CASES LAST TERM INCLUDE FULL DISCUSSIONS OF THE POLICY OF
FEDERAL COURTS OF WAITING FOR STATE COURT DETERMINATIONS.  MARTIN V.
CREASY, 360 U.S. 219; ALLEGHENY COUNTY V. FRANK MASHUDA CO., 360 U.S.
185; HARRISON V. NAACP, 360 U.S. 167; LASSITER V. NORTHAMPTON COUNTY
BD. OF ELECTIONS, 360 U.S. 45; LOUISIANA POWER & LIGHT CO. V. CITY OF
THIBODAUX, 360 U.S. 25. 

SEE GENERALLY, WRIGHT, THE ABSTENTION DOCTRINE RECONSIDERED, 37 TEX.
L. REV. 815, NOTE, 59 COL. L. REV. 749. 

FN23  SEE OPINION OF THE COURT, ANTE, P. 212, N. 3; VESTAL, THE
CERTIFIED QUESTION OF LAW, 36 IOWA L. REV. 629, 643; NOTE, 73 HARV. L.
REV. 1358, 1368, N. 68; STERN, CONFLICT OF LAWS, 12 U. MIAMI L. REV.
383, 397 (1958); KURLAND, TOWARD A COOPERATIVE JUDICIAL FEDERALISM, 24
F.R.D. 481, 489.  CF. FLA. APP. RULE 4.6, 31 FLA. STAT. ANN., 1959 CUM.
POCKET PART. 

FN24  THE STATUTORY AUTHORIZATION GIVING THE STATE SUPREME COURT THE
POWER TO ENTERTAIN CERTIFIED QUESTIONS, FIRST ENACTED IN 1945, FLA.
LAWS 1945, C. 23098, SEC. 1, WAS "PERFECTED" IN 1957, FLA. LAWS 1957,
C. 57-274, SEC. 1.  SEE STERN, CONFLICT OF LAWS, 12 U. MIAMI L. REV.
383, 395 (1958). 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHILE I JOIN THE DISSENT OF MY BROTHER BLACK, I DESIRE TO GIVE
RENEWED PROTEST TO OUR PRACTICE OF MAKING LITIGANTS TRAVEL A LONG,
EXPENSIVE ROAD IN ORDER TO OBTAIN JUSTICE.  CONGRESS HAS CREATED
FEDERAL COURTS WITH POWER TO ADJUDICATE CONTROVERSIES BETWEEN CITIZENS
OF DIFFERENT STATES.  THEY ARE MANNED BY JUDGES DRAWN FROM THE LOCAL
BARS AND FAIRLY CONVERSANT WITH THE LAWS OF THEIR RESPECTIVE AREAS. 
THEY ARE EQUIPPED TO DECIDE QUESTIONS OF LOCAL LAW AS WELL AS FEDERAL
QUESTIONS.  AS WE STATED IN MEREDITH V. WINTER HAVEN, 320 U.S. 228,
236: 

"CONGRESS HAVING ADOPTED THE POLICY OF OPENING THE FEDERAL COURTS TO
SUITORS IN ALL DIVERSITY CASES INVOLVING THE JURISDICTIONAL AMOUNT, WE
CAN DISCERN IN ITS ACTION NO RECOGNITION OF A POLICY WHICH WOULD
EXCLUDE CASES FROM THE JURISDICTION MERELY BECAUSE THEY INVOLVE STATE
LAW OR BECAUSE THE LAW IS UNCERTAIN OR DIFFICULT TO DETERMINE."    THE
SITUATIONS WHERE A FEDERAL COURT MIGHT AWAIT DECISION IN A STATE COURT
OR EVEN REMAND THE PARTIES TO IT SHOULD BE THE EXCEPTION NOT THE RULE. 
ONLY PREJUDICE AGAINST DIVERSITY JURISDICTION CAN EXPLAIN THE AVOIDANCE
OF THE SIMPLE CONSTITUTIONAL QUESTION THAT IS PRESENTED HERE AND THE
REMITTANCE OF THE PARTIES TO STATE COURTS TO BEGIN THE LITIGATION
ANEW.  SOME LITIGANTS HAVE LONG PURSES.  MANY, HOWEVER, CAN HARDLY
AFFORD ONE LAWSUIT, LET ALONE TWO.  SHUTTLING THE PARTIES BETWEEN STATE
AND FEDERAL TRIBUNALS IS A SURE WAY OF DEFEATING THE ENDS OF JUSTICE. 
THE PURSUIT OF JUSTICE IS NOT AN ACADEMIC EXERCISE.  THERE ARE NO
FOUNDATIONS TO FINANCE THE RESOLUTION OF NICE STATE LAW QUESTIONS
INVOLVED IN FEDERAL COURT LITIGATION.  THE PARTIES ARE ENTITLED -
ABSENT UNIQUE AND RARE SITUATIONS - TO ADJUDICATION OF THEIR RIGHTS IN
THE TRIBUNALS WHICH CONGRESS HAS EMPOWERED TO ACT. 
..END :



















UNITED STATES V. GRAND RIVER DAM AUTHORITY 363 U.S. 229 


NO. 503.  ARGUED MAY 17, 1960.  - DECIDED JUNE 13, 1960.  - CT. CL. - ,
175 F. SUPP. 153, REVERSED. 


RESPONDENT IS AN AGENCY OF THE STATE OF OKLAHOMA CREATED TO DEVELOP
HYDROELECTRIC POWER ON THE GRAND RIVER, A NONNAVIGABLE TRIBUTARY OF THE
NAVIGABLE ARKANSAS RIVER.  IT PROPOSED A RIVER DEVELOPMENT PLAN AT
PENSACOLA, MARKHAM FERRY AND FT. GIBSON, ALL SITES ON THE GRAND RIVER,
AND, UNDER LICENSE FROM THE FEDERAL POWER COMMISSION, COMPLETED A
PROJECT AT PENSACOLA IN 1940.  SUBSEQUENTLY, BY THE FLOOD CONTROL ACT
OF 1941, CONGRESS INCORPORATED THE GRAND RIVER PLAN INTO A
COMPREHENSIVE PLAN FOR REGULATION OF NAVIGATION, CONTROL OF FLOODS AND
PRODUCTION OF POWER ON THE ARKANSAS RIVER AND ITS TRIBUTARIES; AND THE
UNITED STATES CONSTRUCTED A PROJECT AT FT. GIBSON, IN CONNECTION WITH
WHICH IT COMPENSATED RESPONDENT FOR A CONDEMNED TRACT OF LAND, FLOWAGE
RIGHTS OVER ITS LANDS AND RELOCATION OF ITS TRANSMISSION LINES. 
RESPONDENT SUED IN THE COURT OF CLAIMS FOR ADDITIONAL COMPENSATION FOR
THE "TAKING" OF ITS WATER POWER RIGHTS AT FT. GIBSON AND ITS FRANCHISE
TO DEVELOP ELECTRIC POWER AND ENERGY AT THAT SITE.  HELD:  RESPONDENT
IS NOT ENTITLED TO RECOVER.  IT FAILED TO SHOW THAT IT HAD ANY RIGHTS
IN THE FLOW OF THE RIVER.  THE UNITED STATES HAD THE SUPERIOR RIGHT
UNDER THE COMMERCE CLAUSE TO BUILD THE FT. GIBSON PROJECT ITSELF TO
PROTECT THE NAVIGABLE CAPACITY OF THE ARKANSAS RIVER, AND THE
FRUSTRATION OF RESPONDENT'S PLANS AND EXPECTATIONS WHICH RESULTED WHEN
THE UNITED STATES CHOSE TO DO SO DID NOT TAKE PROPERTY FROM RESPONDENT
IN THE SENSE OF THE FIFTH AMENDMENT.  PP. 230-236. 

UNITED STATES V. GRAND RIVER DAM AUTHORITY. 

CERTIORARI TO THE COURT OF CLAIMS. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
HARLAN. 

GRAND RIVER IS A NONNAVIGABLE TRIBUTARY OF THE NAVIGABLE ARKANSAS
RIVER AND FLOWS THROUGH OKLAHOMA.  RESPONDENT WAS CREATED BY THE
OKLAHOMA LEGISLATURE TO DEVELOP HYDROELECTRIC POWER ON THE GRAND
RIVER.  IT IS, TO USE THE STATUTORY LANGUAGE OF THE LAW CREATING IT, "A
GOVERNMENTAL AGENCY AND BODY POLITIC AND CORPORATE."  SESSION LAWS OF
OKLAHOMA, 1935, C. 70, ART. 4, SEC. 1.  A REPORT OF THE ARMY CORPS OF
ENGINEERS, MADE IN 1930, INDICATED THAT FEDERAL DEVELOPMENT AT
PENSACOLA, MARKHAM FERRY, AND FT. GIBSON - ALL SITES ON THE GRAND RIVER
- WAS NOT THEN ECONOMICALLY JUSTIFIED.  (FN1)  RESPONDENT, FOLLOWING
ITS CREATION IN 1935, PROPOSED A RIVER DEVELOPMENT PLAN AT THESE THREE
SITES.  IN 1939 THE ARMY ENGINEERS RECOMMENDED A THREE-DAM COORDINATED
PROJECT AS A FEDERAL UNDERTAKING.  (FN2)  CONGRESS BY THE FLOOD CONTROL
ACT OF AUGUST 18, 1941, (FN3) INCORPORATED THAT GRAND RIVER PLAN INTO A
COMPREHENSIVE PLAN FOR THE ARKANSAS RIVER BASIN. 

MEANWHILE RESPONDENT OBTAINED A LICENSE UNDER SEC. 23(B) OF THE
FEDERAL POWER ACT (FN4) TO BUILD AND OPERATE A PROJECT AT PENSACOLA AND
COMPLETED IT IN 1940.  THE UNITED STATES TOOK OVER THE OPERATION OF
THIS PROJECT DURING WORLD WAR II, AFTER WHICH IT WAS RETURNED TO
RESPONDENT.  IN 1946 THE UNITED STATES STARTED THE CONSTRUCTION OF A
PROJECT AT FT. GIBSON.  IT HAS BEEN COMPLETED AS AN INTEGRAL PART OF A
COMPREHENSIVE PLAN FOR THE REGULATION OF NAVIGATION, THE CONTROL OF
FLOODS, AND THE PRODUCTION OF POWER ON THE ARKANSAS RIVER AND ITS
TRIBUTARIES.  CONGRESS, BY MODIFYING ITS PLAN FOR THE ARKANSAS RIVER
BASIN, (FN5) CLEARED THE WAY FOR RESPONDENT TO OBTAIN FROM THE FEDERAL
POWER COMMISSION A LICENSE FOR A PROJECT AT MARKHAM FERRY.  THUS THE
UNITED STATES OPERATES THE FT. GIBSON PROJECT WHICH IS THE FARTHEST
DOWNSTREAM, WHILE THE RESPONDENT HAS THE TWO UPSTREAM PROJECTS.  A 70
ACRE TRACT OWNED BY THE RESPONDENT WAS CONDEMNED WHEN THE FT. GIBSON
PROJECT WAS BUILT; FLOWAGE RIGHTS OVER ITS LANDS WERE ACQUIRED; AND
PAYMENT WAS MADE FOR RELOCATION OF ITS TRANSMISSION LINES.  RESPONDENT
CLAIMED MORE.  IT DEMANDED OF THE UNITED STATES $10,000,000 FOR THE
"TAKING" OF ITS WATER POWER RIGHTS AT FT. GIBSON AND ITS FRANCHISE TO
DEVELOP ELECTRIC POWER AND ENERGY AT THAT SITE.  (FN6)  THE COURT OF
CLAIMS, WHILE RESERVING THE QUESTION AS TO THE AMOUNT OF COMPENSATION
DUE, HELD BY A DIVIDED VOTE THAT THE UNITED STATES WAS LIABLE.  - CT.
CL. - , 175 F. SUPP. 153.  THE CASE IS HERE ON A WRIT OF CERTIORARI. 
361 U.S. 922. 

THE COURT OF CLAIMS RECOGNIZED THAT IF THE GRAND RIVER WERE A
NAVIGABLE STREAM THE UNITED STATES WOULD NOT BE LIABLE FOR DEPRIVING
ANOTHER ENTREPRENEUR OF THE OPPORTUNITY TO UTILIZE THE FLOW OF THE
WATER TO PRODUCE POWER.  OUR CASES HOLD THAT SUCH AN INTEREST IS NOT
COMPENSABLE BECAUSE WHEN THE UNITED STATES ASSERTS ITS SUPERIOR
AUTHORITY UNDER THE COMMERCE CLAUSE TO UTILIZE OR REGULATE THE FLOW OF
THE WATER OF A NAVIGABLE STREAM THERE IS NO "TAKING" OF "PROPERTY" IN
THE SENSE OF THE FIFTH AMENDMENT BECAUSE THE UNITED STATES HAS A
SUPERIOR NAVIGATION EASEMENT WHICH PRECLUDES PRIVATE OWNERSHIP OF THE
WATER OR ITS FLOW.  SEE UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S.
53, 69; UNITED STATES V. TWIN CITY POWER CO., 350 U.S. 222, 224-225. 
THE GOVERNMENT CONTENDS THAT THE NAVIGATIONAL SERVITUDE OF THE UNITED
STATES EXTENDS ALSO TO NONNAVIGABLE WATERS, PRE-EMPTING STATE-CREATED
PROPERTY RIGHTS IN SUCH WATERS, AT LEAST WHEN ASSERTED AGAINST THE
GOVERNMENT.  IN THE VIEW WE TAKE IN THIS CASE, HOWEVER, IT IS NOT
NECESSARY THAT WE REACH THAT CONTENTION.  CONGRESS BY THE 1941 ACT,
ALREADY MENTIONED, (FN7) ADOPTED AS ONE WORK OF IMPROVEMENT "FOR THE
BENEFIT OF NAVIGATION AND THE CONTROL OF DESTRUCTIVE FLOODWATERS" THE
RESERVOIRS IN THE GRAND RIVER.  THAT ACTION TO PROTECT THE "NAVIGABLE
CAPACITY" OF THE ARKANSAS RIVER (UNITED STATES V. RIO GRANDE IRRIGATION
CO., 174 U.S. 690, 708) WAS WITHIN THE CONSTITUTIONAL POWER OF
CONGRESS.  WE HELD IN OKLAHOMA V. ATKINSON CO., 313 U.S. 508, THAT THE
UNITED STATES OVER THE OBJECTION OF OKLAHOMA COULD BUILD THE DENISON
DAM ON THE RED RIVER, ALSO NONNAVIGABLE, BUT A TRIBUTARY OF THE
MISSISSIPPI.  WE THERE STATED, "THERE IS NO CONSTITUTIONAL REASON WHY
CONGRESS CANNOT, UNDER THE COMMERCE POWER, TREAT THE WATERSHEDS AS A
KEY TO FLOOD CONTROL ON NAVIGABLE STREAMS AND THEIR TRIBUTARIES."  ID.,
AT 525.  AND SEE UNITED STATES V. APPALACHIAN POWER CO., 311 U.S. 377,
426; GRAND RIVER DAM AUTHORITY V. GRAND-HYDRO, 335 U.S. 359, 373.  WE
ALSO SAID IN OKLAHOMA V. ATKINSON CO., SUPRA, THAT "  ... THE POWER OF
FLOOD CONTROL EXTENDS TO THE TRIBUTARIES OF NAVIGABLE STREAMS."  ID.,
AT 525.  WE ADDED, "IT IS FOR CONGRESS ALONE TO DECIDE WHETHER A
PARTICULAR PROJECT, BY ITSELF OR AS PART OF A MORE COMPREHENSIVE
SCHEME, WILL HAVE SUCH A BENEFICIAL EFFECT ON THE ARTERIES OF
INTERSTATE COMMERCE AS TO WARRANT IT.  THAT DETERMINATION IS
LEGISLATIVE IN CHARACTER."  ID., AT 527.  WE HELD THAT THE FACT THAT
THE PROJECT HAD A MULTIPLE PURPOSE WAS IRRELEVANT TO THE CONSTITUTIONAL
ISSUE, ID., AT 528-534, AS WAS THE FACT THAT POWER WAS EXPECTED TO PAY
THE WAY.  ID., AT 533.  "THE FACT THAT ENDS OTHER THAN FLOOD CONTROL
WILL ALSO BE SERVED, OR THAT FLOOD CONTROL MAY BE RELATIVELY OF LESSER
IMPORTANCE, DOES NOT INVALIDATE THE EXERCISE OF THE AUTHORITY CONFERRED
ON CONGRESS."  ID., AT 533-534. 

WE CANNOT SAY ON THIS RECORD THAT THE FT. GIBSON DAM IS ANY LESS
ESSENTIAL OR USEFUL OR DESIRABLE FROM THE VIEWPOINT OF FLOOD CONTROL
AND NAVIGATION THAN WAS DENISON DAM.  (FN8)  WHEN THE UNITED STATES
APPROPRIATES THE FLOW EITHER OF A NAVIGABLE OR A NONNAVIGABLE STREAM
PURSUANT TO ITS SUPERIOR POWER UNDER THE COMMERCE CLAUSE, IT IS
EXERCISING ESTABLISHED PREROGATIVES AND IS BEHOLDEN TO NO ONE.  PLAINLY
UNDER OUR DECISIONS IT COULD LICENSE ANOTHER TO BUILD THE PROJECT AND
OPERATE IT.  IF RESPONDENT SUED FOR DAMAGES FOR FAILURE OF THE FEDERAL
GOVERNMENT TO GRANT IT A LICENSE TO BUILD THE FT. GIBSON PROJECT, IT
COULD NOT CLAIM THAT SOMETHING OF RIGHT HAD BEEN WITHHELD FROM IT.  SO
IT IS WHEN THE UNITED STATES EXERCISES ITS PREROGATIVE BY BUILDING THE
PROJECT ITSELF.  (FN9) 

RESPONDENT, HOWEVER, ARGUES THAT IT HAD A VESTED INTEREST IN THE
WATERS OF THE GRAND RIVER AND POINTS TO THE GRANT MADE BY OKLAHOMA TO
IT FOR THE DEVELOPMENT OF HYDROELECTRIC POWER ON THE GRAND RIVER.  IT
SEEKS TO TRACE THE TITLE OF OKLAHOMA THROUGH THE CHEROKEES WHO, IN
CONSIDERATION OF THEIR AGREEMENT TO REMOVE TO THE TERRITORY WHICH
INCLUDED THE GRAND RIVER, RECEIVED ON DECEMBER 31, 1838, A DEED FROM
THE UNITED STATES TO THE TERRITORY.  (FN10)  BY SEC. 15 OF THE ACT OF
MARCH 3, 1893, 27 STAT. 612, 645, CONGRESS AGREED THAT THIS CHEROKEE
LAND COULD BE ALLOTTED TO THE MEMBERS OF THE NATION IN SEVERALTY.  THE
ARGUMENT IS THAT THE UNITED STATES HAD DIVESTED ITSELF ENTIRELY OF ANY
RIGHTS IN THE WATER OF THE GRAND RIVER PRIOR TO OKLAHOMA'S ADMISSION AS
A STATE IN 1907.  ASSUMING, ARGUENDO, THAT THAT IS TRUE, RESPONDENT'S
CLAIM IS NOT ADVANCED.  IN DEALING WITH A GRANT BY THE UNITED STATES TO
THE OSAGE INDIANS OVER A NONNAVIGABLE STRETCH OF THE ARKANSAS RIVER THE
COURT IN BREWER OIL CO. V. UNITED STATES, 260 U.S. 77, 87-88, SAID: 

"THE TITLE OF THE INDIANS GROWS OUT OF A FEDERAL GRANT WHEN THE
FEDERAL GOVERNMENT HAD COMPLETE SOVEREIGNTY OVER THE TERRITORY IN
QUESTION.  OKLAHOMA WHEN SHE CAME INTO THE UNION TOOK SOVEREIGNTY OVER
THE PUBLIC LANDS IN THE CONDITION OF OWNERSHIP AS THEY WERE THEN, AND,
IF THE BED OF A NON-NAVIGABLE STREAM HAD THEN BECOME THE PROPERTY OF
THE OSAGES, THERE WAS NOTHING IN THE ADMISSION OF OKLAHOMA INTO A
CONSTITUTIONAL EQUALITY OF POWER WITH OTHER STATES WHICH REQUIRED OR
PERMITTED A DIVESTING OF THE TITLE." 

RESPONDENT ARGUES THAT IF ANY RIGHTS IN THE WATERS OF THE GRAND RIVER
REMAINED IN THE UNITED STATES AFTER THE GRANT TO THE INDIANS IN 1838,
RIGHTS OVER THEM WERE LATER GIVEN TO OKLAHOMA.  THE REFERENCE IS TO
SEC. 25 OF THE ACT OF APRIL 26, 1906, 34 STAT. 137, 146, WHICH GRANTED
LIGHT AND POWER COMPANIES THE RIGHT TO CONSTRUCT DAMS ACROSS
NONNAVIGABLE STREAMS IN CHEROKEE TERRITORY FOR POWER AND OTHER
PURPOSES.  THE RIGHT TO ACQUIRE OR CONDEMN PROPERTY WAS GRANTED THE
COMPANIES IN PRESCRIBED SITUATIONS "SUBJECT TO APPROVAL BY THE
SECRETARY OF THE INTERIOR."  AND SEC. 25 CONTAINED AT THE END A PROVISO
CRITICAL TO RESPONDENT'S CASE AND READING AS FOLLOWS: "PROVIDED, THAT
ALL RIGHTS GRANTED HEREUNDER SHALL BE SUBJECT TO THE CONTROL OF THE
FUTURE TERRITORY OR STATE WITHIN WHICH THE INDIAN TERRITORY MAY BE
SITUATED."  BUT THIS ACT WAS NO MORE THAN A REGULATORY MEASURE.  IT DID
NOT PURPORT TO GRANT TITLE TO WATERS AND APPURTENANT LANDS.  THE 1906
ACT WAS AN ASSERTION OF POWER POSSESSED BY THE FEDERAL GOVERNMENT TO
REGULATE INDIAN TERRITORY.  MOREOVER, NO WATER RIGHTS CONDEMNED UNDER
THIS ACT ARE SHOWN TO HAVE PASSED TO OKLAHOMA AND FROM OKLAHOMA TO
RESPONDENT.  YET THE FEDERAL GOVERNMENT WAS THE INITIAL PROPRIETOR IN
THESE WESTERN LANDS AND ANY CLAIM BY A STATE OR BY OTHERS MUST DERIVE
FROM THIS FEDERAL TITLE.  SEE UNITED STATES V. GERLACH LIVE STOCK CO.,
339 U.S. 725, 747; FEDERAL POWER COMM'N V. OREGON, 349 U.S. 435. 
CONGRESS HAS MADE VARIOUS GRANTS OR CONVEYANCES OR BY STATUTE
RECOGNIZED CERTAIN APPROPRIATIONS OF LANDS OR WATERS IN THE PUBLIC
DOMAIN MADE THROUGH MACHINERY OF THE STATES.  UNITED STATES V. GERLACH
LIVE STOCK CO., SUPRA, AT 747-748; FEDERAL POWER COMM'N V. OREGON,
SUPRA, AT 446-448.  YET THE ONLY FEDERAL ACT ON WHICH RELIANCE IS BASED
BY RESPONDENT FOR THE GRANT OF THESE WATER RIGHTS TO OKLAHOMA IS SEC.
25 OF THE ACT OF APRIL 26, 1906.  AS WE HAVE SEEN, THAT WAS A
REGULATORY MEASURE THROUGH WHICH TITLE MIGHT BE OBTAINED; BUT NO WATER
RIGHTS UNDER IT WERE ACQUIRED BY A LIGHT OR POWER COMPANY WHICH IS NOW
ASSERTED TO BE IN RESPONDENT'S CHAIN OF TITLE.  IF THE 1906 ACT BE LESS
CLEAR THAN WE BELIEVE, NEVERTHELESS THE CONSTRUCTION URGED BY
RESPONDENT WOULD BE PRECLUDED BY THE PRINCIPLE THAT ALL FEDERAL GRANTS
ARE CONSTRUED IN FAVOR OF THE GOVERNMENT LEST THEY BE ENLARGED TO
INCLUDE MORE THAN WHAT WAS EXPRESSLY INCLUDED.  SEE UNITED STATES V.
UNION PACIFIC R. CO., 353 U.S. 112, 116. 

RESPONDENT ARGUES THAT SINCE OKLAHOMA GAVE ITS RIGHTS TO THE WATERS
OF THE GRAND RIVER, IT HAS A COMPENSABLE INTEREST IN THEM UNDER THE
DECISION IN FEDERAL POWER COMM'N V. NIAGARA MOHAWK POWER CORP., 347
U.S. 239.  THAT DECISION MERELY HELD THAT THE FEDERAL POWER ACT TREATS
"USUFRUCTUARY WATER RIGHTS LIKE OTHER PROPERTY RIGHTS," ID., AT 251,
MAKING IT NECESSARY FOR A LICENSEE TO COMPENSATE THE CLAIMANT FOR
THEM.  HERE NO LICENSEE CLAIMS UNDER THE FEDERAL ACT; THE UNITED STATES
BUILDS THE PROJECT ON ITS OWN ACCOUNT. 

THE COURT OF CLAIMS ERRED IN FAILING TO DISTINGUISH BETWEEN AN
APPROPRIATION OF PROPERTY AND THE FRUSTRATION OF AN ENTERPRISE BY
REASON OF THE EXERCISE OF A SUPERIOR GOVERNMENTAL POWER.  HERE
RESPONDENT HAS DONE NO MORE THAN PROVE THAT A PROSPECTIVE BUSINESS
OPPORTUNITY WAS LOST.  MORE THAN THAT IS NECESSARY AS OMNIA CO. V.
UNITED STATES, 261 U.S. 502, HOLDS.  IN THAT CASE THE CLAIMANT STOOD TO
MAKE LARGE PROFITS FROM A CONTRACT IT HAD WITH A STEEL COMPANY.  BUT
THE UNITED STATES, PURSUANT TO THE WAR POWER, REQUISITIONED THE
COMPANY'S ENTIRE STEEL PRODUCTION.  SUIT WAS BROUGHT IN THE COURT OF
CLAIMS FOR JUST COMPENSATION.  THE COURT, AFTER POINTING OUT THAT MANY
LAWS AND RULINGS OF GOVERNMENT REDUCE THE VALUE OF PROPERTY HELD BY
INDIVIDUALS, NOTED THAT THERE THE GOVERNMENT DID NOT APPROPRIATE WHAT
THE CLAIMANT OWNED BUT ONLY ENDED HIS OPPORTUNITY TO EXPLOIT A
CONTRACT.  "FRUSTRATION AND APPROPRIATION ARE ESSENTIALLY DIFFERENT
THINGS."  ID., AT 513.  AND SEE MITCHELL V. UNITED STATES, 267 U.S.
341, 345; UNITED STATES EX REL. T.V.A. V. POWELSON, 319 U.S. 266, 281
283.  NO MORE NEED BE SAID HERE. 

IN CONCLUSION, THE UNITED STATES DID NOT APPROPRIATE ANY BUSINESS
CONTRACT, LAND, OR PROPERTY OF RESPONDENT.  IT HAD THE SUPERIOR RIGHT
BY REASON OF THE COMMERCE CLAUSE TO BUILD THE FT. GIBSON PROJECT ITSELF
OR TO LICENSE ANOTHER TO DO IT.  THE FRUSTRATION OF RESPONDENT'S PLANS
AND EXPECTATIONS WHICH RESULTED WHEN THE UNITED STATES CHOSE TO
UNDERTAKE THE PROJECT ON ITS OWN ACCOUNT DID NOT TAKE PROPERTY FROM
RESPONDENT IN THE SENSE OF THE FIFTH AMENDMENT.  REVERSED. 

FN1  H.R. DOC. NO. 308, 74TH CONG., 1ST SESS., VOL. 3. 

FN2  H.R. DOC. NO. 107, 76TH CONG., 1ST SESS. 

FN3  55 STAT. 638, 645. 

FN4  49 STAT. 846, 16 U.S.C. SEC. 817.  SEE GRAND RIVER DAM AUTHORITY
V. GRAND-HYDRO, 335 U.S. 359. 

FN5  68 STAT. 450. 

FN6  SEVERANCE DAMAGES, STORAGE AND HEADWATER BENEFITS ACCRUING TO
FT. GIBSON FROM THE PENSACOLA UNIT, THE COST AND VALUE OF SURVEYS,
PLANS, AND SPECIFICATIONS FOR THE FT. GIBSON UNIT, THE LOSS OF THE USE
AND VALUE OF LANDS AND RIGHTS-OF-WAY ACQUIRED FOR THE INTERCONNECTION
OF THE FT. GIBSON UNIT WITH RESPONDENT'S SYSTEM AND FOR THE
DISTRIBUTION OF POWER FROM FT.  GIBSON, WERE ALSO CLAIMED.  BUT THESE
CLAIMS WERE DENIED BY THE COURT OF CLAIMS AND NO REVIEW OF THAT DENIAL
HAS BEEN SOUGHT HERE.    FN7  NOTE 3, SUPRA, AT 639, 645. 

FN8  THE FINDINGS ARE "THERE IS STORAGE CAPACITY BETWEEN ELEVATION
554 AND ELEVATION 582 THAT IS RESERVED FOR THE CONTROL OF FLOOD
WATERS." 

FN9  NO RIPARIAN LAND IS INVOLVED AND IT CANNOT BE CLAIMED AS WAS
ASSERTED IN UNITED STATES V. KELLY, 243 U.S. 316, 330, THAT IN
SUBSTANCE THERE WAS A TAKING OF LAND.  AND SEE UNITED STATES V. WILLOW
RIVER CO., 324 U.S. 499, 507, WHICH NARROWLY CONFINED THE HOLDING IN
THE KELLY CASE. 

FN10  SEE MILLS, OKLAHOMA INDIAN LAND LAWS (1924), 27. 
..END :













UNITED STATES V. BROSNAN 363 U.S. 237 


NO. 137.  ARGUED MARCH 21, 1960.  - DECIDED JUNE 13, 1960.* - 264 F.2D
762, AFFIRMED.  - 265 F.2D 862, REVERSED. 

*TOGETHER WITH NO. 183, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION V. UNITED STATES, ON CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT, ARGUED MARCH 22, 1960. 


1.  FEDERAL TAX LIENS ON REAL ESTATE WHICH ARE JUNIOR TO DEFAULTED
MORTGAGES HELD IN THE SAME PROPERTIES BY OTHER PARTIES MAY BE
EFFECTIVELY EXTINGUISHED BY STATE PROCEEDINGS TO WHICH THE UNITED
STATES IS NOT, AND IS NOT REQUIRED UNDER STATE LAW TO BE, A PARTY.  PP.
238-252. 

(A)  SINCE FEDERAL TAX LIENS ARE WHOLLY CREATURES OF FEDERAL STATUTE,
MATTERS DIRECTLY AFFECTING THEIR NATURE OR OPERATION ARE FEDERAL
QUESTIONS, REGARDLESS OF WHETHER OR NOT THE FEDERAL STATUTORY SCHEME
DEALS WITH THEM SPECIFICALLY.  PP. 240-241. 

(B)  NEVERTHELESS, IT IS BELIEVED DESIRABLE TO ADOPT AS FEDERAL LAW
STATE LAW GOVERNING DIVESTITURE OF JUNIOR FEDERAL TAX LIENS (EXCEPT TO
THE EXTENT THAT CONGRESS MAY HAVE ENTERED THE FIELD), SINCE THIS WILL
AVOID THE SEVERE DISLOCATION OF LOCAL PROPERTY RELATIONSHIPS WHICH
WOULD RESULT FROM DISREGARDING STATE PROCEDURES.  PP. 241-242. 

(C) BY THE ENACTMENT OF 26 U.S.C. SEC. 7424 AND 28 U.S.C. SEC. 2410,
CONGRESS DID NOT INTEND TO MAKE THE PROCEEDINGS UNDER THOSE SECTIONS
THE ONLY MEANS BY WHICH A JUNIOR FEDERAL TAX LIEN COULD BE
EXTINGUISHED; IT DID NOT INTEND TO EXCLUDE THE APPLICATION OF ALL STATE
PROCEDURES, WHATEVER THEIR EXISTENCE OR EFFECTIVENESS MIGHT BE.  PP.
242-250. 

2.  UNDER PENNSYLVANIA LAW, MORTGAGEES OF A TRACT OF PENNSYLVANIA
LAND ON WHICH THE UNITED STATES HELD A JUNIOR FEDERAL TAX LIEN
PROCEEDED UNDER A CONFESSION-OF-JUDGMENT PROVISION OF THE MORTGAGE BOND
TO OBTAIN AN IN PERSONAM JUDGMENT AGAINST THE MORTGAGOR-TAXPAYER,
PURSUANT TO WHICH THE PROPERTY WAS SOLD UNDER A WRIT OF FIERI FACIAS. 
SUBSEQUENTLY, THE UNITED STATES SUED UNDER 26 U.S.C. SEC. 7043 TO
ENFORCE ITS JUNIOR TAX LIEN ON THE SAME LAND BY FORECLOSURE AND SALE. 
HELD: UNDER PENNSYLVANIA LAW, THE SHERIFF'S SALE UNDER A WRIT OF FIERI
FACIAS WAS A JUDICAL SALE; BUT THE DOCTRINE OF SOVEREIGN IMMUNITY FROM
UNCONSENTED SUITS HAS NOT YET BEEN APPLIED TO SUCH PROCEEDINGS AND WILL
NOT BE EXTENDED TO THEM NOW.  THEREFORE, THE GOVERNMENT'S JUNIOR TAX
LIEN ON THE PROPERTY WAS EFFECTIVELY EXTINGUISHED BY THE PENNSYLVANIA
PROCEEDINGS.  PP. 239, 250. 

3.  CALIFORNIA REAL ESTATE AND PERSONAL PROPERTIES SUBJECT TO A DEED
OF TRUST AND TWO CHATTEL MORTGAGES WERE SOLD BY THE TRUSTEE-MORTGAGEE
PURSUANT TO POWERS OF SALE CONTAINED IN THE RESPECTIVE INSTRUMENTS. 
THE UNITED STATES, WHICH HAD JUNIOR TAX LIENS ON THE PROPERTIES,
RECEIVED NO ACTUAL NOTICE OF THE SALE.  THEREAFTER THE MORTGAGEE, WHICH
HAD BOUGHT IN AT THE SALE, BROUGHT SUIT AGAINST THE UNITED STATES UNDER
28 U.S.C. SEC. 2410 TO QUIET ITS TITLE.  HELD:  THE DOCTRINE OF
SOVEREIGN IMMUNITY FROM UNCONSENTED SUITS DOES NOT APPLY TO SUCH
PRIVATE SALES WITHOUT JUDICIAL PROCEEDINGS.  THEREFORE, THE EXERCISE
UNDER CALIFORNIA LAW OF THE POWERS OF SALE CONFERRED BY THE DEED OF
TRUST AND CHATTEL MORTGAGES EFFECTIVELY EXTINGUISHED THE JUNIOR FEDERAL
TAX LIENS.  PP.  239-240, 250-252. 

UNITED STATES V. BROSNAN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN THESE TWO CASES, THE UNITED STATES PURPORTS TO HOLD FEDERAL TAX
LIENS ON PENNSYLVANIA AND CALIFORNIA REAL PROPERTIES WHICH ARE
CONCEDEDLY JUNIOR TO DEFAULTED MORTGAGES HELD ON THE SAME PROPERTIES BY
THE OTHER PARTIES TO THE SUITS.  THE BASIC ISSUE IN EACH CASE IS
WHETHER THE FEDERAL LIEN WAS EFFECTIVELY EXTINGUISHED BY STATE
PROCEEDINGS TO WHICH THE UNITED STATES WAS NOT, NOR WAS REQUIRED UNDER
STATE LAW TO BE, A PARTY. 

THE COURSE OF PROCEEDINGS GIVING RISE TO THIS ISSUE WAS AS FOLLOWS:
IN NO. 137, INVOLVING A TRACT OF PENNSYLVANIA LAND, THE RESPONDENT
MORTGAGEES, UNDER A CONFESSION-OF-JUDGMENT PROVISION OF THE MORTGAGE
BOND, OBTAINED AN IN PERSONAM JUDGMENT AGAINST THE MORTGAGOR-TAXPAYER,
PURSUANT TO WHICH THE PROPERTY WAS SOLD UNDER A WRIT OF FIERI FACIAS. 
(FN1)  SUBSEQUENTLY, THE UNITED STATES INSTITUTED THIS SUIT UNDER 26
U.S.C. SEC. 7403, SEEKING AN ENFORCEMENT OF ITS TAX LIEN BY FORECLOSURE
AND SALE.  (FN2)  THE DISTRICT COURT HELD THAT THE GOVERNMENT'S LIEN ON
THE PROPERTY IN QUESTION HAD BEEN EFFECTIVELY EXTINGUISHED BY THE
PENNSYLVANIA PROCEEDINGS, AND IT ENTERED JUDGMENT FOR THE DEFENDANTS. 
THE COURT OF APPEALS AFFIRMED.  264 F.2D 762. 

IN NO. 183, CALIFORNIA REAL AND PERSONAL PROPERTIES SUBJECT TO A DEED
OF TRUST AND TWO CHATTEL MORTGAGES, WERE SOLD BY THE TRUSTEE-MORTGAGEE
PURSUANT TO POWERS OF SALE CONTAINED IN THE RESPECTIVE INSTRUMENTS. 
THE UNITED STATES RECEIVED NO ACTUAL NOTICE OF THE SALE.  THEREAFTER,
THE MORTGAGEE, WHICH HAD BOUGHT IN AT THE SALE, BROUGHT THIS SUIT
AGAINST THE GOVERNMENT UNDER 28 U.S.C. SEC. 2410 TO QUIET ITS TITLE,
CLAIMING THAT THE EXERCISE OF THE POWERS OF SALE HAD EFFECTIVELY
EXTINGUISHED THE FEDERAL TAX LIEN.  THE COURT OF APPEALS, REVERSING THE
DISTRICT COURT, DISMISSED THE SUIT, HOLDING THAT THE FEDERAL LIEN COULD
BE DIVESTED "ONLY WITH THE CONSENT OF THE UNITED STATES AND IN THE
MANNER PRESCRIBED BY CONGRESS."  265 F.2D 862, 869.  THE COURT DID NOT
REACH THE QUESTION OF THE EFFECT WHICH CALIFORNIA LAW PURPORTS TO GIVE
TO THE EXERCISE OF THE POWER OF SALE UPON JUNIOR LIENS. 

WE BROUGHT THE CASES HERE, 361 U.S. 811, BECAUSE OF THE IMPORTANCE OF
THE ISSUE IN THE ADMINISTRATION OF THE TAX LAWS AND THE CONFLICT
BETWEEN THE DECISIONS OF THE THIRD AND NINTH CIRCUITS. 

                        I. 

FEDERAL TAX LIENS ARE WHOLLY CREATURES OF FEDERAL STATUTE.  DETAILED
PROVISIONS GOVERN THEIR CREATION, CONTINUANCE, VALIDITY, AND RELEASE. 
(FN3)  CONSEQUENTLY, MATTERS DIRECTLY AFFECTING THE NATURE OF OPERATION
OF SUCH LIENS ARE FEDERAL QUESTIONS, REGARDLESS OF WHETHER THE FEDERAL
STATUTORY SCHEME SPECIFICALLY DEALS WITH THEM OR NOT.  SEE CLEARFIELD
TRUST CO. V. UNITED STATES, 318 U.S. 363.  YET BECAUSE FEDERAL LIENS
INTRUDE UPON RELATIONSHIPS TRADITIONALLY GOVERNED BY STATE LAW, IT IS
INEVITABLE THAT THE COURT, IN DEVELOPING THE FEDERAL LAW DEFINING THE
INCIDENTS OF SUCH LIENS, SHOULD OFTEN BE CALLED UPON TO DETERMINE
WHETHER, AS A MATTER OF FEDERAL POLICY, LOCAL POLICY SHOULD BE ADOPTED
AS THE GOVERNING FEDERAL LAW, OR WHETHER A UNIFORM NATIONWIDE FEDERAL
RULE SHOULD BE FORMULATED. 

IN DETERMINING THE EXTENT OF THE "PROPERTY AND RIGHTS TO PROPERTY"
(SEC. 6321) TO WHICH A GOVERNMENT TAX LIEN ATTACHES, WE HAVE LOOKED TO
STATE LAW.  UNITED STATES V. BESS, 357 U.S. 51, 55.   THE MORTGAGEES
CLAIM THAT THE PRESENT CASES ARE GOVERNED BY THE PRINCIPLE OF BESS. 
THEY ASSERT THAT SINCE THE TAXPAYER-MORTGAGORS' INTERESTS WERE SUBJECT
TO BEING TERMINATED BY MEANS OF THE STATE PROCEEDINGS HERE INVOKED,
THEIR "PROPERTY AND RIGHTS TO PROPERTY" WERE LIMITED TO THAT EXTENT;
THAT UNDER BESS, THE GOVERNMENT'S LIEN ATTACHES ONLY TO PROPERTY RIGHTS
CREATED UNDER STATE LAW; AND THAT THEREFORE, THE GOVERNMENT'S INTEREST
WAS SUBJECT TO BEING SIMILARLY TERMINATED. 

THE FALLACY OF THIS CONTENTION IS EVIDENT.  IN BESS, WE HELD THAT A
DECEASED'S PROPERTY IN INSURANCE POLICIES ON HIS OWN LIFE WAS LIMITED
TO THEIR CASH SURRENDER VALUE AND DID NOT EXTEND TO THEIR PROCEEDS,
WHICH HE COULD NEVER ENJOY.  HERE, HOWEVER, THE MORTGAGORS OWNED THE
ENTIRE FEE INTERESTS IN THE PROPERTIES, SUBJECT ONLY TO THE MORTGAGES. 
THIS COURT HAS REPEATEDLY REJECTED THE CONTENTION THAT BECAUSE A FEE
OWNED BY A TAXPAYER WAS ALREADY ENCUMBERED BY A LIEN WHICH ENJOYED
SENIORITY UNDER STATE LAW, THE GOVERNMENT'S LIEN NECESSARILY ATTACHED
SUBJECT TO THAT LIEN.  (FN4) A FORTIORI, THE "PROPERTY" TO WHICH THE
FEDERAL LIEN CAN ATTACH IS NOT DIMINISHED BY THE PARTICULAR MEANS OF
ENFORCEMENT POSSESSED BY A COMPETING LIENOR TO WHOM FEDERAL LAW
CONCEDES PRIORITY. 

II. 

WE NEVERTHELESS BELIEVE IT DESIRABLE TO ADOPT AS FEDERAL LAW STATE
LAW GOVERNING DIVESTITURE OF FEDERAL TAX LIENS, EXCEPT TO THE EXTENT
THAT CONGRESS MAY HAVE ENTERED THE FIELD.  IT IS TRUE THAT SUCH LIENS
FORM PART OF THE MACHINERY FOR THE COLLECTION OF FEDERAL TAXES, THE
OBJECTIVE OF WHICH IS "UNIFORMITY, AS FAR AS MAY BE."  UNITED STATES V.
GILBERT ASSOCIATES, 345 U.S. 361, 364.  HOWEVER, WHEN CONGRESS RESORTED
TO THE USE OF LIENS, IT CAME INTO AN AREA OF COMPLEX PROPERTY
RELATIONSHIPS LONG SINCE SETTLED AND REGULATED BY STATE LAW.  WE
BELIEVE THAT, SO FAR AS THIS COURT IS CONCERNED, THE NEED FOR
UNIFORMITY IN THIS INSTANCE IS OUTWEIGHED BY THE SEVERE DISLOCATION TO
LOCAL PROPERTY RELATIONSHIPS WHICH WOULD RESULT FROM OUR DISREGARDING
STATE PROCEDURES.  LONG ACCEPTED NONJUDICIAL MEANS OF ENFORCING PRIVATE
LIENS WOULD BE EMBARRASSED, IF NOT NULLIFIED WHERE FEDERAL LIENS ARE
INVOLVED, AND MANY TITLES ALREADY SECURED BY SUCH MEANS WOULD BE CAST
IN DOUBT.  WE THINK IT MORE HARMONIOUS WITH THE TENETS OF OUR FEDERAL
SYSTEM AND MORE CONSISTENT WITH WHAT CONGRESS HAS ALREADY DONE IN THIS
AREA, NOT TO INJECT OURSELVES INTO THE NETWORK OF COMPETING PRIVATE
PROPERTY INTERESTS, BY DISPLACING WELL-ESTABLISHED STATE PROCEDURES
GOVERNING THEIR ENFORCEMENT, OR SUPERIMPOSING ON THEM A NEW FEDERAL
RULE.  CF. BOARD OF COMM'N V. UNITED STATES, 308 U.S. 343. 

                                  III. 

THIS CONCLUSION WOULD NOT, OF COURSE, WITHSTAND A CONGRESSIONAL
DIRECTION TO THE CONTRARY.  THE GOVERNMENT ARGUES THAT BY THE ENACTMENT
OF CERTAIN STATUTES RELATING TO JUDICIAL PROCEEDINGS FOR THE
ENFORCEMENT AND EXTINGUISHMENT OF FEDERAL LIENS, CONGRESS HAS, AT LEAST
IMPLIEDLY, SO SPOKEN. 

AS EARLY AS 1868, CONGRESS HAD AUTHORIZED A SUIT BY THE UNITED STATES
TO ENFORCE ITS OWN TAX LIEN.   (FN5)  A SIMILAR PROVISION NOW APPEARS
AS 26 U.S.C. SEC. 7403.  (FN6)  HOWEVER, IT WAS ALREADY THEN WELL
ESTABLISHED THAT THE UNITED STATES WAS AN INDISPENSABLE PARTY TO ANY
SUIT AFFECTING PROPERTY IN WHICH IT HAD AN INTEREST, AND THAT SUCH A
SUIT WAS THEREFORE A SUIT AGAINST THE UNITED STATES WHICH COULD NOT BE
MAINTAINED WITHOUT ITS CONSENT.  (FN7)  FURTHERMORE, THE LAWS OF MANY
STATES THEMSELVES REQUIRED ALL PERSONS CLAIMING AN INTEREST IN PROPERTY
TO BE JOINED AS PARTIES TO ANY SUIT TO FORECLOSE A LIEN OR QUIET TITLE
TO THE PROPERTY.  THUS THERE WAS NO WAY IN WHICH A PARTY WHO HELD A
LIEN ON PROPERTY SENIOR TO THAT OF THE UNITED STATES COULD GET A
JUDICIAL DECREE EXTINGUISHING THE GOVERNMENT'S INTEREST. 

TO REMEDY THIS SITUATION, CONGRESS IN 1924 PASSED THE PREDECESSOR OF
26 U.S.C. SEC.  7424, (FN8) WHICH GIVES THE HOLDER OF A PRIOR-FILED
LIEN THE RIGHT TO ENFORCE IT BY CIVIL ACTION AGAINST THE UNITED STATES,
SUBJECT TO THE EXHAUSTION OF CERTAIN ADMINISTRATIVE REMEDIES.  THE
COURT IS TO PROCEED TO "A FINAL DETERMINATION OF ALL CLAIMS TO OR LIENS
UPON THE PROPERTY IN QUESTION" IN THE SAME MANNER AS IF THE ACTION HAD
BEEN BROUGHT BY THE GOVERNMENT TO ENFORCE ITS LIEN UNDER SEC. 7403. 
THE LATTER SECTION REQUIRES THE COURT TO DETERMINE THE MERITS OF ALL
CLAIMS TO THE PROPERTY, AND IN CASE THE UNITED STATES ESTABLISHES SUCH
A CLAIM, PERMITS, BUT DOES NOT REQUIRE, THE COURT TO ORDER A JUDICIAL
SALE.  THE DETAILS OF THE PROCEDURE TO BE FOLLOWED IN CASE OF JUDICIAL
SALE ARE NOT SPECIFIED, NOR IS THE UNITED STATES EXPRESSLY GIVEN ANY
RIGHT TO REDEEM. 

IN 1931, CONGRESS, FOR SIMILAR REASONS, PASSED THE PREDECESSOR OF 28
U.S.C. SEC. 2410, WHICH GIVES A PRIVATE LIENOR THE RIGHT TO NAME THE
UNITED STATES A PARTY IN ANY ACTION OR SUIT TO FORECLOSE A MORTGAGE OR
LIEN OR TO QUIET TITLE TO PROPERTY ON WHICH THE UNITED STATES CLAIMS
ANY KIND OF MORTGAGE OR LIEN, WHETHER OR NOT A TAX LIEN.  (FN9)  THE
ACTION CAN BE BROUGHT IN A STATE COURT, BUT IS REMOVABLE TO A FEDERAL
COURT.  (FN10)  IF A JUDICIAL SALE IS CONDUCTED IN SUCH AN ACTION OR
SUIT, IT IS TO HAVE THE SAME EFFECT AS IT WOULD HAVE UNDER LOCAL LAW,
BUT THE UNITED STATES IS GIVEN ONE YEAR TO REDEEM. 

THESE STATUTES ON THEIR FACE EVIDENCE NO INTENT TO EXCLUDE OTHERWISE
AVAILABLE STATE PROCEDURES.  THEIR ONLY APPARENT PURPOSE IS TO LIFT THE
BAR OF SOVEREIGN IMMUNITY WHICH HAD THERETOFORE BEEN CONSIDERED TO WORK
A PARTICULAR INJUSTICE ON PRIVATE LIENORS.  SEVERAL FEATURES OF THE
STATUTES MAKE THIS CLEAR: 

(1) BOTH SECTIONS ARE PURELY PERMISSIVE IN TENOR.  A PRIVATE LIENOR
"MAY  ... FILE A PETITION IN THE DISTRICT COURT" UNDER SEC. 7424, OR
"THE UNITED STATES MAY BE NAMED A PARTY" UNDER SEC. 2410. 

(2) UNDER NEITHER SECTION IS THERE A FEDERALLY IMPOSED REQUIREMENT
THAT THERE BE ANY JUDICIAL SALE AT ALL.  NOR IS THERE ANY UNIFORMITY OF
PROCEDURE UNDER THE STATUTES.  UNDER SEC. 7424, THE COURT "MAY DECREE A
SALE" OF THE PROPERTY, BUT NO GUIDANCE IS GIVEN AS TO THE PROCEDURE TO
BE FOLLOWED.  UNDER SEC. 2410, A JUDICIAL SALE IS TO HAVE THE SAME
EFFECT AS IT WOULD HAVE UNDER LOCAL LAW, BUT NOTHING IN THE SECTION
INDICATES WHEN A JUDICIAL SALE IS TO BE HAD.  WHILE THE GOVERNMENT IS
GUARANTEED A ONE-YEAR RIGHT TO REDEEM IF THE PLAINTIFF PROCEEDS UNDER
SEC. 2410, IT IS GUARANTEED NO SUCH RIGHT IF HE PROCEEDS UNDER SEC.
7424. 

(3) THE SPECIFIC PERMISSION OF SEC. 2410(A) TO INSTITUTE A QUIET-TITLE
SUIT AGAINST THE UNITED STATES OBVIOUSLY CONTEMPLATES A DECLARATION BY
THE FEDERAL COURTS OF PREVIOUSLY CREATED LEGAL CONSEQUENCES.  IF SEC.
7424 OR SEC. 2410 WERE INVOKED TO EXTINGUISH A FEDERAL LIEN, A
SUBSEQUENT SUIT TO QUIET TITLE OBVIOUSLY WOULD NOT BE NECESSARY. 
THEREFORE, CONGRESS MUST HAVE RECOGNIZED THE POSSIBILITY THAT STATE
PROCEDURES MIGHT AFFECT FEDERAL LIENS. 

THE GOVERNMENT, HOWEVER, ARGUES THAT THE LEGISLATIVE HISTORY
INDICATES THAT CONGRESS BELIEVED A SUIT AGAINST THE UNITED STATES TO BE
THE ONLY WAY IN WHICH A FEDERAL LIEN COULD BE EXTINGUISHED.  BUT THE
STATEMENTS RELIED ON (FN11) REVEAL SIMPLY A RECOGNITION THAT COMPETING
LIENORS WERE PUT AT AN UNFAIR DISADVANTAGE BECAUSE OF INABILITY TO JOIN
EFFECTIVELY THE GOVERNMENT AS A PARTY TO JUDICIAL PROCEEDINGS.  AS TO
THE EXTENT OF THAT DISADVANTAGE, IT IS NOT CLEAR WHETHER CONGRESS
THOUGHT THAT THE GOVERNMENT'S SOVEREIGN IMMUNITY BARRED AN ATTEMPT TO
AFFECT A FEDERAL LIEN IN ANY MANNER; THAT A NONJUDICIAL PROCEDURE MIGHT
BE EFFECTIVE TO DIVEST FEDERAL LIENS BUT THAT STATE PROCEDURES BY AND
LARGE REQUIRED JUNIOR LIENORS TO BE JOINED AS PARTIES TO JUDICIAL
PROCEEDINGS; OR THAT REGARDLESS OF THE EXISTENCE AND EFFECTIVENESS OF
STATE PROCEDURES, A CLOUD ON THE TITLE COULD ONLY BE REMOVED
CONCLUSIVELY BY A JUDICIAL DETERMINATION BINDING ON THE UNITED STATES. 
IN ANY EVENT, THE BASIC QUESTION IS NOT WHAT THE EXISTING STATE OF THE
LAW WAS, OR EVEN WHAT CONGRESS BELIEVED IT TO BE, BUT WHETHER CONGRESS
INTENDED TO EXCLUDE THE APPLICATION OF ALL STATE PROCEDURES, WHATEVER
THEIR EXISTENCE OR EFFECTIVENESS MIGHT BE.  NO SUCH INFERENCE CAN BE
DRAWN FROM THE LEGISLATIVE STATEMENTS REFERRED TO.

                             IV. 

THE QUESTION REMAINS WHETHER THE STATE PROCEDURES FOLLOWED IN THESE
CASES WERE NONETHELESS INEFFECTIVE TO DEFEAT THE GOVERNMENT LIENS
BECAUSE THEY SHOULD BE REGARDED AS BEING UNCONSENTED SUITS AGAINST THE
UNITED STATES.  BECAUSE NO JUDICIAL PROCEEDING WAS THERE INVOLVED, NO.
183 PRESENTS NO SUCH PROBLEM, UNLESS WE ARE NOW TO HOLD, BEYOND
ANYTHING THIS COURT HAS HERETOFORE DECIDED, THAT BECAUSE THE PRIVATE
SALE OF ITS OWN FORCE WAS EFFECTIVE UNDER CALIFORNIA LAW TO EXTINGUISH
ALL JUNIOR LIENS, (FN12) WHAT WAS DONE IN THIS INSTANCE AMOUNTED TO A
"SUIT" AGAINST THE UNITED STATES.  WE DO NOT THINK THAT THE DOCTRINE OF
SOVEREIGN IMMUNITY REACHES SO FAR. 

NO. 137, HOWEVER, PRESENTS A DIFFERENT AND MORE DIFFICULT QUESTION ON
THIS SCORE.  UNDER PENNSYLVANIA LAW THE SHERIFF'S SALE OF THE MORTGAGED
LAND UNDER A WRIT OF FIERI FACIAS WAS A JUDICIAL SALE, HAVING THE
EFFECT OF EXTINGUISHING JUNIOR LIENS EVEN THOUGH THEIR HOLDERS WERE
NOT, NOR REQUIRED TO BE MADE, PARTIES TO THE PROCEEDINGS.  (FN13)
UNDER THE DECISIONS OF THIS COURT, A JUDICIAL PROCEEDING AGAINST
PROPERTY IN WHICH THE GOVERNMENT HAS AN INTEREST IS A SUIT AGAINST THE
UNITED STATES WHICH CANNOT BE MAINTAINED WITHOUT ITS CONSENT.  THE
SIREN, 7 WALL.  152; MINNESOTA V. UNITED STATES, 305 U.S. 382; UNITED
STATES V. ALABAMA, 313 U.S. 274.  IT HAS BEEN SUGGESTED THAT THIS
PRINCIPLE APPLIES ONLY WHERE THE GOVERNMENT HOLDS A FEE INTEREST OR
SUCH OTHER INTEREST IN THE PROPERTY AS TO RENDER IT AN INDISPENSABLE
PARTY UNDER STATE LAW.  SEE MINNESOTA V. UNITED STATES, SUPRA, AT P.
386.  NEVERTHELESS, NO CASE IN THIS COURT, SO FAR AS WE CAN FIND, HAS
YET APPLIED THE DOCTRINE OF SOVEREIGN IMMUNITY IN THE PRECISE SITUATION
BEFORE US.  MUCH CAN BE SAID FOR THE VIEW THAT THIS PENNSYLVANIA
PROCEDURE SHOULD NOT BE CONSIDERED AS BEING AN UNCONSENTED SUIT AGAINST
THE UNITED STATES, (FN14) ANY MORE THAN THE WHOLLY PRIVATE PROCEEDING
IN THE CALIFORNIA CASE.  IN BOTH CASES, THE PRACTICAL EFFECT UPON
JUNIOR LIENS IS EXACTLY THE SAME.    BE THAT AS IT MAY, WE SHALL NOT SO
EXTEND THE PRINCIPLE OF SOVEREIGN IMMUNITY.  TO DO SO WOULD NOT ONLY
PRODUCE INCONGRUOUS RESULTS AS BETWEEN THESE TWO CASES, BUT WOULD
TRESPASS UPON THE CONSIDERATIONS WHICH HAVE LED TO OUR REFUSAL TO
FASHION A FEDERAL RULE OF UNIFORMITY RESPECTING THE EXTINGUISHMENT OF
FEDERAL JUNIOR LIENS UNDER STATE PROCEDURES.  IT MUST BE RECOGNIZED
THAT THE FACTORS SUPPORTING A FEDERAL RULE OF UNIFORMITY IN THIS FIELD,
AND THOSE MILITATING AGAINST THE DISLOCATION OF LONG-STANDING STATE
PROCEDURES, ARE FULL OF COMPETING CONSIDERATIONS.  THEY INVOLVE MANY
IMPONDERABLES WHICH THIS COURT IS ILL-EQUIPPED TO ASSESS, ON WHICH
CONGRESS HAS NOT YET SPOKEN, AND WHICH WE THINK ARE BEST LEFT TO THAT
BODY TO DEAL WITH IN LIGHT OF THEIR FULL ILLUMINATION.  A WISE SOLUTION
OF SUCH A FAR-REACHING PROBLEM CANNOT BE ACHIEVED WITHIN THE CONFINES
OF A LAWSUIT.  UNTIL CONGRESS OTHERWISE DETERMINES, WE THINK THAT STATE
LAW IS EFFECTIVE TO DIVEST GOVERNMENT JUNIOR LIENS IN CASES SUCH AS
THESE. 

THE JUDGMENT IN NO. 137 IS AFFIRMED, AND THAT IN NO. 183 IS
REVERSED.  IT IS SO ORDERED. 

FN1  SUBSEQUENT TO THE ENTRY OF JUDGMENT, BUT PRIOR TO THE SALE, THE
MORTGAGEES ATTEMPTED TO JOIN THE UNITED STATES AS A PARTY UNDER 28
U.S.C. SEC. 2410.  WE AGREE WITH THE DISTRICT COURT THAT THAT ATTEMPT
DID NOT COMPLY WITH THE STATUTE. 

FN2  ALTERNATIVELY, IN THE EVENT THE DISTRICT COURT FOUND THAT THE
GOVERNMENT HAD BEEN PROPERLY JOINED AS A PARTY TO THE STATE
PROCEEDINGS, THE GOVERNMENT SOUGHT A DECREE THAT IT HAD PROPERLY
EXERCISED ITS RIGHT OF REDEMPTION.  THAT ISSUE IS NOT PRESSED BY THE
GOVERNMENT AND IS NOT BEFORE US. 

FN3  SEE 26 U.S.C. SEC. 6321 (LIEN FOR TAXES); SEC. 6322 (PERIOD OF
LIEN); SEC. 6323 (VALIDITY AGAINST MORTGAGES, PLEDGEES, PURCHASERS, AND
JUDGMENT CREDITORS); AND SEC. 6325 (RELEASE OF LIEN OR PARTIAL
DISCHARGE OF PROPERTY). 

FN4  UNITED STATES V. SECURITY TRUST & SAVINGS BANK, 340 U.S. 47;
UNITED STATES V. CITY OF NEW BRITAIN, 347 U.S. 81; UNITED STATES V.
ACRI, 348 U.S. 211; UNITED STATES V. LIVERPOOL & LONDON & GLOVE INS.
CO., LTD., 348 U.S. 215; UNITED STATES V. SCOVIL, 348 U.S. 218; UNITED
STATES V. COLOTTA, 350 U.S. 808; UNITED STATES V. WHITE BEAR BREWING
CO., 350 U.S. 1010; UNITED STATES V. VORREITER, 355 U.S. 15; UNITED
STATES V. BALL CONSTRUCTION CO., INC., 355 U.S. 587; UNITED STATES V.
HULLEY, 358 U.S. 66. 

FN5  ACT OF JULY 20, 1868, C. 186, SEC. 106, 15 STAT. 167. 

FN6  "SEC.  7403.  ACTION TO ENFORCE LIEN OR TO SUBJECT PROPERTY TO
PAYMENT OF TAX. 

"(A) FILING.  IN ANY CASE WHERE THERE HAS BEEN A REFUSAL OR NEGLECT
TO PAY ANY TAX, OR TO DISCHARGE ANY LIABILITY IN RESPECT THEREOF,
WHETHER OR NOT LEVY HAS BEEN MADE, THE ATTORNEY GENERAL OR HIS
DELEGATE, AT THE REQUEST OF THE SECRETARY OR HIS DELEGATE, MAY DIRECT A
CIVIL ACTION TO BE FILED IN A DISTRICT COURT OF THE UNITED STATES TO
ENFORCE THE LIEN OF THE UNITED STATES UNDER THIS TITLE WITH RESPECT TO
SUCH TAX OR LIABILITY OR TO SUBJECT ANY PROPERTY, OF WHATEVER NATURE,
OF THE DELINQUENT, OR IN WHICH HE HAS ANY RIGHT, TITLE, OR INTEREST, TO
THE PAYMENT OF SUCH TAX OR LIABILITY. 

"(B) PARTIES.  ALL PERSONS HAVING LIENS UPON OR CLAIMING ANY INTEREST
IN THE PROPERTY INVOLVED IN SUCH ACTION SHALL BE MADE PARTIES THERETO. 

"(C) ADJUDICATION AND DECREE.  THE COURT SHALL, AFTER THE PARTIES
HAVE BEEN DULY NOTIFIED OF THE ACTION, PROCEED TO ADJUDICATE ALL
MATTERS INVOLVED THEREIN AND FINALLY DETERMINE THE MERITS OF ALL CLAIMS
TO AND LIENS UPON THE PROPERTY, AND, IN ALL CASES WHERE A CLAIM OR
INTEREST OF THE UNITED STATES THEREIN IS ESTABLISHED, MAY DECREE A SALE
OF SUCH PROPERTY, BY THE PROPER OFFICER OF THE COURT, AND A
DISTRIBUTION OF THE PROCEEDS OF SUCH SALES ACCORDING TO THE FINDINGS OF
THE COURT IN RESPECT TO THE INTERESTS OF THE PARTIES AND OF THE UNITED
STATES. 

"(D) RECEIVERSHIP.  IN ANY SUCH PROCEEDING, AT THE INSTANCE OF THE
UNITED STATES, THE COURT MAY APPOINT A RECEIVER TO ENFORCE THE LIEN,
OR, UPON CERTIFICATION BY THE SECRETARY OR HIS DELEGATE DURING THE
PENDENCY OF SUCH PROCEEDINGS THAT IT IS IN THE PUBLIC INTEREST, MAY
APPOINT A RECEIVER WITH ALL THE POWERS OF A RECEIVER IN EQUITY." 

FN7  THE SIREN, 7 WALL.  152; MINNESOTA V. UNITED STATES, 305 U.S.
382, 386; UNITED STATES V. ALABAMA, 313 U.S. 274, 282. 

FN8  43 STAT. 253.  SECTION 7424 NOW PROVIDES: 

"SEC. 7424.  CIVIL ACTION TO CLEAR TITLE TO PROPERTY. 

"(A) OBTAINING LEAVE TO FILE. 

"(1) REQUEST FOR INSTITUTION OF PROCEEDINGS BY UNITED STATES.  ANY
PERSON HAVING A LIEN UPON OR ANY INTEREST IN THE PROPERTY REFERRED TO
IN SECTION 7403, NOTICE OF WHICH HAS BEEN DULY FILED OF RECORD IN THE
JURISDICTION IN WHICH THE PROPERTY IS LOCATED, PRIOR TO THE FILING OF
NOTICE OF THE LIEN OF THE UNITED STATES AS PROVIDED IN SECTION 6323, OR
ANY PERSON PURCHASING THE PROPERTY AT A SALE TO SATISFY SUCH PRIOR LIEN
OR INTEREST, MAY MAKE WRITTEN REQUEST TO THE SECRETARY OR HIS DELEGATE
TO AUTHORIZE THE FILING OF A CIVIL ACTION AS PROVIDED IN SECTION 7403. 

"(2) PETITION TO COURT.  IF THE SECRETARY OR HIS DELEGATE FAILS TO
AUTHORIZE THE FILING OF SUCH CIVIL ACTION WITHIN 6 MONTHS AFTER RECEIPT
OF SUCH WRITTEN REQUEST, SUCH PERSON OR PURCHASER MAY, AFTER GIVING
NOTICE TO THE SECRETARY OR HIS DELEGATE, FILE A PETITION IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT IN WHICH THE
PROPERTY IS LOCATED, PRAYING LEAVE TO FILE A CIVIL ACTION FOR A FINAL
DETERMINATION OF ALL CLAIMS TO OR LIENS UPON THE PROPERTY IN QUESTION. 

"(3) COURT ORDER.  AFTER A FULL HEARING IN OPEN COURT, THE DISTRICT
COURT MAY IN ITS DISCRETION ENTER AN ORDER GRANTING LEAVE TO FILE SUCH
CIVIL ACTION, IN WHICH THE UNITED STATES AND ALL PERSONS HAVING LIENS
UPON OR CLAIMING ANY INTEREST IN THE PROPERTY SHALL BE MADE PARTIES. 

"(B) ADJUDICATION.  UPON THE FILING OF SUCH CIVIL ACTION, THE
DISTRICT COURT SHALL PROCEED TO ADJUDICATE THE MATTERS INVOLVED
THEREIN, IN THE SAME MANNER AS IN THE CASE OF CIVIL ACTIONS FILED UNDER
THE TAX UPON WHICH THE LIEN OF THE UNITED STATES IS BASED SHALL BE
CONCLUSIVELY PRESUMED TO BE VALID." 

FN9  46 STAT. 1528, AS AMENDED, 56 STAT. 1026.  AS PRESENTLY
CODIFIED, 28 U.S.C. SEC. 2410 PROVIDES: 

"SEC. 2410.  ACTIONS AFFECTING PROPERTY ON WHICH UNITED STATES HAS
LIEN. 

"(A) UNDER THE CONDITIONS PRESCRIBED IN THIS SECTION AND SECTION 1444
OF THIS TITLE FOR THE PROTECTION OF THE UNITED STATES, THE UNITED
STATES MAY BE NAMED A PARTY IN ANY CIVIL ACTION OR SUIT IN ANY DISTRICT
COURT, OR IN ANY STATE COURT HAVING JURISDICTION OF THE SUBJECT MATTER,
TO QUIET TITLE TO OR FOR THE FORECLOSURE OF A MORTGAGE OR OTHER LIEN
UPON REAL OR PERSONAL PROPERTY ON WHICH THE UNITED STATES HAS OR CLAIMS
A MORTGAGE OR OTHER LIEN. 

"(B) THE COMPLAINT SHALL SET FORTH WITH PARTICULARITY THE NATURE OF
THE INTEREST OR LIEN OF THE UNITED STATES.  IN ACTIONS IN THE STATE
COURTS SERVICE UPON THE UNITED STATES SHALL BE MADE BY SERVING THE
PROCESS OF THE COURT WITH A COPY OF THE COMPLAINT UPON THE UNITED
STATES ATTORNEY FOR THE DISTRICT IN WHICH THE ACTION IS BROUGHT OR UPON
AN ASSISTANT UNITED STATES ATTORNEY OR CLERICAL EMPLOYEE DESIGNATED BY
THE UNITED STATES ATTORNEY IN WRITING FILED WITH THE CLERK OF THE COURT
IN WHICH THE ACTION IS BROUGHT AND BY SENDING COPIES OF THE PROCESS AND
COMPLAINT, BY REGISTERED MAIL, TO THE ATTORNEY GENERAL OF THE UNITED
STATES AT WASHINGTON, DISTRICT OF COLUMBIA.  IN SUCH ACTIONS THE UNITED
STATES MAY APPEAR AND ANSWER, PLEAD OR DEMUR WITHIN SIXTY DAYS AFTER
SUCH SERVICE OR SUCH FURTHER TIME AS THE COURT MAY ALLOW. 

"(C) A JUDICIAL SALE IN SUCH ACTION OR SUIT SHALL HAVE THE SAME
EFFECT RESPECTING THE DISCHARGE OF THE PROPERTY FROM LIENS AND
ENCUMBRANCES HELD BY THE UNITED STATES AS MAY BE PROVIDED WITH RESPECT
TO SUCH MATTERS BY THE LOCAL LAW OF THE PLACE WHERE THE PROPERTY IS
SITUATED  ...  .  WHERE A SALE OF REAL ESTATE IS MADE TO SATISFY A LIEN
PRIOR TO THAT OF THE UNITED STATES, THE UNITED STATES SHALL HAVE ONE
YEAR FROM THE DATE OF SALE WITHIN WHICH TO REDEEM.  IN ANY CASE WHERE
THE DEBT OWING THE UNITED STATES IS DUE, THE UNITED STATES MAY ASK, BY
WAY OF AFFIRMATIVE RELIEF, FOR THE FORECLOSURE OF ITS OWN LIEN AND
WHERE PROPERTY IS SOLD TO SATISFY A FIRST LIEN HELD BY THE UNITED
STATES, THE UNITED STATES MAY BID AT THE SALE SUCH SUM, NOT EXCEEDING
THE AMOUNT OF ITS CLAIM WITH EXPENSES OF SALE, AS MAY BE DIRECTED BY
THE HEAD OF THE DEPARTMENT OR AGENCY OF THE UNITED STATES WHICH HAS
CHARGE OF THE ADMINISTRATION OF THE LAWS IN RESPECT OF WHICH THE CLAIM
OF THE UNITED STATES ARISES." 

FN10  28 U.S.C. SEC. 1444. 

FN11  THE SENATE COMMITTEE WHICH REPORTED THE BILL WHICH BECAME THE
PREDECESSOR OF SEC. 7424 STATED (S. REP. NO. 398, 68TH CONG., 1ST SESS.
46): 

"AT THE PRESENT TIME, IN CASES IN WHICH THE LIEN PRIOR IN TIME TO
THAT OF THE UNITED STATES EQUALS OR EXCEEDS IN AMOUNT THE VALUE OF THE
PROPERTY, THERE IS NO METHOD WHEREBY THE LIEN FOR TAXES MAY BE
DISCHARGED WITHOUT PAYMENT.  ALTHOUGH THE LIEN MAY THUS BE VALUELESS TO
THE UNITED STATES, IT REMAINS A CLOUD ON THE TITLE WHICH THE PRIOR
LIENOR IS POWERLESS TO REMOVE.  THE SUBDIVISION GIVES THE LIENOR A
REMEDY IN THIS CASE." 

THE HOUSE COMMITTEE WHICH REPORTED A BILL DESIGNED TO ACHIEVE THE
SAME OBJECTIVE AS SEC. 2410 STATED (H.R. REP. NO. 95, 71ST CONG., 2D
SESS. 1-3): 

"THIS LEGISLATION HAS BEEN RECOMMENDED FOR A NUMBER OF YEARS BY THE
AMERICAN BAR ASSOCIATION THROUGH ITS COMMITTEE ON REMOVAL OF GOVERNMENT
LIENS ON REAL ESTATE, THE UNITED STATES LEAGUE OF LOCAL BUILDING AND
LOAN ASSOCIATIONS, AND BY NUMEROUS LAND TITLE COMPANIES, IN ORDER TO
RELIEVE AGAINST THE INJUSTICE WITH WHICH MORTGAGEES ARE CONFRONTED
UNDER THE PRESENT STATE OF THE LAW WHO FIND, WHEN IT IS NECESSARY TO
FORECLOSE THEIR MORTGAGES, THAT THERE HAS BEEN FILED AGAINST THE
PROPERTY A JUNIOR LIEN BY THE FEDERAL GOVERNMENT FOR SOME DEBT DUE THE
UNITED STATES BY THE OWNER OF THE EQUITY IN THE PROPERTY, AND FOR WHICH
THE MORTGAGEE OWES NO OBLIGATION EITHER LEGAL OR MORAL.  IN SUCH
CIRCUMSTANCES, THE MORTGAGEE FINDS HIMSELF AT AN IMPASSE.  IT IS
IMPOSSIBLE FOR HIM TO BRING ABOUT A JUDICIAL SALE OF THE PROPERTY OWING
TO THE CLOUD UPON THE TITLE CREATED BY THE GOVERNMENT'S LIEN.  HE CAN
NOT REMOVE THE LIEN AS THERE IS NO METHOD BY WHICH HE MAY BRING THE
UNITED STATES IN AS ONE OF THE PARTIES TO THE FORECLOSURE PROCEEDING. 
HE IS, THEREFORE, IN EFFECT DEFEATED OF HIS OWN RIGHT TO FORECLOSE
UNLESS HE IS WILLING TO PAY OFF THE GOVERNMENT LIEN, A DEBT FOR WHICH
HE IS IN NO WAY RESPONSIBLE AND HE BEING A PERSON TO WHOM THE
GOVERNMENT WOULD IN NO EVENT LOOK FOR ITS PAYMENT. 

"THE PURPOSE OF THIS BILL IS TO PROVIDE A SIMPLE AND JUST METHOD OF
PROCEEDING IN SUCH CASES  ... 

     *         *         *         *         * 

"THIS BILL WILL PROVIDE RELIEF FROM A SITUATION THAT HAS CAUSED A
GREAT DEAL OF INJUSTICE TO INNOCENT HOLDERS OF LIENS AGAINST REAL
ESTATE.  THE NUMBER OF LIENS FILED UNDER THE REVENUE LAWS HAS BEEN
STEADILY GROWING  ...  .  THE LAW PROVIDES AND EQUITY DICTATES THAT THE
GOVERNMENT'S LIEN IN SUCH CIRCUMSTANCES SHOULD HAVE A JUNIOR STATUS,
YET UNDER THE PRESENT PRACTICE THE INABILITY OF THE PLAINTIFF TO BRING
THE UNITED STATES IN AS A PARTY TO THE PROCEEDING TO FORECLOSE OR HAVE
EXECUTION AND SALE ON A COURT JUDGMENT WHERE A GOVERNMENT LIEN IS FOUND
TO HAVE BEEN PLACED UPON THE PROPERTY SUBSEQUENTLY TO THE TIME OF THE
PLAINTIFF'S ENCUMBRANCE TIES THE HANDS OF A PRIOR LIEN HOLDER BY MAKING
IT IMPOSSIBLE FOR HIM TO GRANT A CLEAR TITLE TO THE PROPERTY AND THUS
FOR NO JUST REASON DEPRIVES HIM OF THE BENEFITS OF HIS SECURITY OR
COURT JUDGMENT AS THE CASE MAY BE." 

DURING THE DEBATES LEADING TO THE ENACTMENT OF THE PREDECESSOR OF
SEC. 2410, REPRESENTATIVE GRAHAM, WHO HAD REPORTED THE BILL FROM THE
JUDICIARY COMMITTEE, EXPLAINED IT AS FOLLOWS (72 CONG. REC. 3119): 

"IT IS SIMPLY A PROVISION BY WHICH WHENEVER A MORTGAGEE, FOR
INSTANCE, HOLDING A MORTGAGE UPON REAL ESTATE, FINDS THAT A LIEN TO THE
GOVERNMENT HAS BEEN FILED  ...  THE OWNER OF THAT MORTGAGE MAY GO INTO
THE STATE COURT AND FORECLOSE HIS MORTGAGE, BUT THIS WOULD DO HIM NO
GOOD UNLESS HE COULD GET THE UNITED STATES MADE A PARTY TO THE
PROCEEDING IN SOME WAY SO THAT THE LIEN WOULD BE RELIEVED ON THE PART
OF THE GOVERNMENT." 

SUBSEQUENTLY, THE FOLLOWING COLLOQUY TOOK PLACE WITH RESPECT TO A
PROVISION OF THE BILL WHICH AUTHORIZED ADMINISTRATIVE RELEASE OF
QUESTIONABLE OR WORTHLESS FEDERAL LIENS (72 CONG.  REC. 3121-3122): 

"MR. BURTNESS (OF NORTH DAKOTA).  SO THAT SOME OF US MAY UNDERSTAND A
LITTLE BETTER THE RELIEF THAT IS SUGGESTED SIMPLY AS AN ADMINISTRATIVE
ACT AND THE CASES TO WHICH IT WOULD APPLY.  I UNDERSTAND, FOR INSTANCE,
IT WOULD APPLY TO A CASE OF THIS SORT:  IN MANY STATES FORECLOSURE BY
ADVERTISEMENT IS PERMITTED, WITH THE RIGHT OF REDEMPTION.  ASSUME THAT
A PRIOR LIEN IS FORECLOSED, THE GOVERNMENT HAS A JUNIOR LIEN, THE TIME
FOR REDEMPTION EXPIRES AND THE PURCHASER AT THE FORECLOSURE SALE OF THE
PRIOR LIEN GETS TITLE THROUGH THE FORECLOSURE PROCEEDINGS UNDER STATE
LAWS.  PRESUMABLY IN A CASE OF THAT SORT THE ENFORCIBILITY OF THE
FEDERAL LIEN AS A PRACTICAL PROPOSITION HAS BEEN WIPED OUT, BUT IT IS
STILL A CLOUD ON THE TITLE.  NOW, IN THAT SORT OF A CASE, COULD THE
ADMINISTRATIVE OFFICERS GIVE RELIEF UNDER THE AMENDMENT THAT IS
PROPOSED WITHOUT GOING INTO COURT IN ANY WAY?    "MR. HAWLEY (OF
OREGON).  IF AT ANY TIME THEY FIND AS A MATTER OF FACT THAT THE
GOVERNMENT LIEN IS VALUELESS THEY ARE AUTHORIZED TO RELEASE THAT LIEN
BY THE PENDING AMENDMENT. 

"MR. BURTNESS.  AND IT MAY BECOME VALUELESS FOR SEVERAL REASONS, FOR
INSTANCE, DEPRECIATION IN THE VALUE OF THE PROPERTY, THE AMOUNT OF
PRIOR LIENS FORECLOSED IN LEGAL PROCEEDINGS, OR ANYTHING ELSE. 

"MR. GRAHAM (OF PENNSYLVANIA).  THE FORECLOSURE THE GENTLEMAN SPEAKS
OF COULD NOT POSSIBLY DISCHARGE THE GOVERNMENT'S LIEN.    "MR.
BURTNESS.  I UNDERSTAND IT WOULD NOT BE DISCHARGED, BUT, OF COURSE, THE
HOLDER OF THE PROPERTY WOULD HAVE BEEN SUBROGATED TO THE RIGHTS
ACQUIRED UNDER THE FORECLOSURE OF THE PRIOR LIEN, I TAKE IT." 

IN 1941, ATTORNEY GENERAL JACKSON SENT A LETTER TO THE CHAIRMAN OF
THE SENATE JUDICIARY COMMITTEE URGING THAT THE PREDECESSOR OF SEC. 2410
BE AMENDED TO INCLUDE SUITS TO QUIET TITLE.  THE LETTER STATED (S. REP.
NO. 1646, 77TH CONG., 2D SESS. 2): 

"IT SHOULD BE OBSERVED IN THIS CONNECTION THAT UNDER EXISTING LAW
THERE IS NO PROVISION WHEREBY THE OWNER OF REAL ESTATE MAY CLEAR HIS
TITLE TO SUCH REAL ESTATE OF THE CLOUD OF A GOVERNMENT MORTGAGE OR
LIEN.  WELCH V. HAMILTON (S.D. CALIF.), 33 F.(2D) 224, AND U.S. V.
TURNER (C.C.A. 8), 47 F.(2D) 86. 

"IN MANY INSTANCES PERSONS ACTING IN GOOD FAITH HAVE PURCHASED REAL
ESTATE WITHOUT KNOWLEDGE OF THE GOVERNMENT LIEN OR IN THE BELIEF THAT
THE LIEN HAD BEEN EXTINGUISHED.  IN OTHER INSTANCES, MORTGAGEES HAVE
FORECLOSED ON PROPERTY AND HAVE FAILED TO JOIN THE UNITED STATES.  IT
APPEARS THAT JUSTICE AND FAIR DEALING WOULD REQUIRE THAT A METHOD BE
PROVIDED TO CLEAR REAL-ESTATE TITLES OF QUESTIONABLE OR VALUELESS
GOVERNMENT LIENS.  ACCORDINGLY, I SUGGEST THAT THE BILL BE AMENDED BY
INSERTING THE PHRASE 'TO QUIET TITLE OR' BETWEEN THE WORDS 'MATTER' AND
'FOR THE FORECLOSURE OF' IN LINE 4 OF PAGE 2 OF THE BILL." 

FN12  CAL. CIV. CODE SEC. 2932; BRACEY V. GRAY, 49 CAL. APP. 2D 274,
121 P.2D 770; SOHN V. CALIFORNIA PAC. TITLE INS. CO., 124 CAL. APP. 2D
757, 269 P.2D 223; 34 CAL. JUR.  2D, MORTGAGES AND TRUST DEEDS SEC.
463. 

FN13  PURDON'S PA. STAT. ANN., TIT. 12, SEC. 2447; LISS V. MEDARY
HOMES, INC., 388 PA. 139, 130 A.2D 137; STATE COLLEGE BOROUGH V.
LEATHERS, 19 PA. D.&C. 405; MOORE V. SCHELL, 99 PA.  SUPER.  81;
STANDARD PENNSYLVANIA PRACTICE, C. 68, SEC. 32.  SEE ALSO COMMONWEALTH
V. KEYSTONE GRAPHITE CO., 257 PA. 249, 101 A. 766; STANDARD
PENNSYLVANIA PRACTICE, C. 68, SEC. 4, N. 20. 

FN14  IF STATE PROCEDURES UNDERTOOK TO DISCRIMINATE AGAINST THE
UNITED STATES WITH RESPECT TO JOINDER, QUESTIONS OF A DIFFERENT ORDER
WOULD BE PRESENTED. 

MR. JUSTICE CLARK, WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR.
JUSTICE FRANKFURTER JOIN, DISSENTING. 

I SUBMIT THAT THE OVER-ALL PURPOSE OF CONGRESS IN THE ADOPTION OF
SEC. 2410 AND SEC. 7424 WAS "TO AFFORD TO A HOLDER OF A LIEN PRIOR IN
TIME TO THAT OF THE UNITED STATES  ...  A METHOD OF PROCEDURE FOR
CLEARING THE TITLE TO THE PROPERTY."  (FN1)  THE COMMITTEE POINTED OUT
THAT "THERE IS NO METHOD WHEREBY THE LIEN FOR TAXES MAY BE DISCHARGED
WITHOUT PAYMENT.  ALTHOUGH THE LIEN MAY  ...  BE VALUELESS TO THE
UNITED STATES, IT REMAINS A CLOUD ON THE TITLE WHICH THE PRIOR LIENOR
IS POWERLESS TO REMOVE."  AND THE HOUSE COMMITTEE STATED, AMONG OTHER
THINGS, THAT REAL ESTATE INTERESTS HAD RECOMMENDED THE LEGISLATION FOR
YEARS BECAUSE A PRIOR RECORDED LIENHOLDER WAS "IN EFFECT DEFEATED OF
HIS OWN RIGHT TO FORECLOSE" AND THAT THE "SIMPLE AND JUST METHOD OF
PROCEEDING" UNDER THE BILL "IS FAIR TO THE HOLDER OF THE PRIOR LIEN ON
THE REAL ESTATE AND  ...  AMPLY AND FULLY PROTECTS THE RIGHTS OF THE
FEDERAL GOVERNMENT  ...  ."  IT DECLARED THAT "EQUITY DICTATES THAT THE
GOVERNMENT'S LIEN IN SUCH CIRCUMSTANCES SHOULD HAVE A JUNIOR STATUS,
YET UNDER THE PRESENT PRACTICE THE INABILITY OF THE PLAINTIFF TO BRING
THE UNITED STATES IN AS A PARTY TO THE PROCEEDING TO FORECLOSE OR HAVE
EXECUTION AND SALE ON A COURT JUDGMENT  ...  TIES THE HANDS OF A PRIOR
LIEN HOLDER BY MAKING IT IMPOSSIBLE FOR HIM TO GRANT A CLEAR TITLE TO
THE PROPERTY AND THUS  ...  DEPRIVES HIM OF THE BENEFITS OF HIS
SECURITY OR COURT JUDGMENT AS THE CASE MAY BE."  FURTHERMORE, THE
CONGRESS UNDERSTOOD AND INTENDED THAT FORECLOSURE UNDER STATE
PROCEDURES - BY COURT OR PRIVATE SALE - WITHOUT NOTICE TO THE UNITED
STATES "COULD NOT POSSIBLY DISCHARGE THE GOVERNMENT'S LIEN."  (CHAIRMAN
GRAHAM OF THE HOUSE JUDICIARY COMMITTEE, MANAGER OF THE BILL ON THE
FLOOR.) 

THE CONGRESS FIRST PASSED SEC. 7424, WHICH GAVE A MORTGAGEE THE
RIGHT, AFTER EXHAUSTING ADMINISTRATIVE REMEDIES, TO BRING AN ACTION
AGAINST THE UNITED STATES TO TEST ITS LIEN.  THEREAFTER IN 1931 IT
ENACTED SEC. 2410 WHICH, WITHOUT ADMINISTRATIVE REMEDIES, PERMITTED THE
UNITED STATES TO BE NAMED A PARTY IN A SUIT BY A MORTGAGEE FOR
FORECLOSURE OF A PRIOR MORTGAGE LIEN ON PROPERTY OR TO QUIET TITLE. 
THE ACT GAVE CONSENT TO THE FILING OF SUCH ACTIONS "UNDER THE
CONDITIONS PRESCRIBED," INCLUDING A ONE-YEAR RIGHT OF REDEMPTION, ALL
OF WHICH REQUIREMENTS THE CONGRESS FOUND TO BE NECESSARY "FOR THE
PROTECTION OF THE UNITED STATES." 

NEVERTHELESS, THE COURT HAS BRUSHED ASIDE ALL OF THESE PROTECTIONS
AND, WITHOUT REGARD TO THE CONGRESSIONAL MANDATE, HAS TURNED THESE ACTS
INTO BOOBY TRAPS IN WHICH THE GOVERNMENT HAS NOT BEEN CAUGHT UP BY ITS
OWN BENEVOLENCE.  GIVING THE CALIFORNIA MORTGAGEES IN NO. 183 A CARTE
BLANCHE TO WIPE OUT THE GOVERNMENT'S LIEN BY SUMMARY ACTION AT A
TRUSTEE'S SALE, WITHOUT EVEN GIVING THE GOVERNMENT NOTICE, THE COURT
DECLARES ITS EXTRAORDINARY ACTION TO BE IN RECOGNITION "OF LONG
STANDING STATE PROCEDURES."  FOR THE SAME REASON, THE PENNSYLVANIA
MORTGAGEES IN NO. 137 ARE PERMITTED TO BRING AN ACTION IN THE COURTS OF
THAT STATE AND TO FORECLOSE THE GOVERNMENT'S LIEN WITHOUT MAKING IT A
PARTY OR GIVING IT ANY NOTICE WHATSOEVER.  ALL OF THIS IT DOES AS "A
MATTER OF FEDERAL POLICY."  BUT THIS IS NOT ALL.  THE COURT FINDS THAT
THE PENNSYLVANIA PROCEEDING WAS A JUDICIAL ONE CULMINATING IN A SALE OF
PROPERTY ON WHICH THE UNITED STATES HAD A LIEN AND THAT "UNDER THE
DECISIONS OF THIS COURT, A JUDICIAL PROCEEDING AGAINST PROPERTY IN
WHICH THE GOVERNMENT HAS AN INTEREST IS A SUIT AGAINST THE UNITED
STATES WHICH CANNOT BE MAINTAINED WITHOUT ITS CONSENT."  YET, EVEN
THOUGH ADMITTEDLY THE GOVERNMENT HAS NOT SO CONSENTED, THE COURT SAYS
THAT SINCE "NO CASE IN THIS COURT, SO FAR AS WE CAN FIND, HAS YET
APPLIED THE DOCTRINE OF SOVEREIGN IMMUNITY IN THE PRECISE SITUATION
BEFORE US," IT WILL NOT DO SO NOW.  THIS IS CERTAINLY LESS THAN A SELF
EVIDENT EXPLANATION FOR WIPING OUT AN INTEREST OF THE GOVERNMENT
WITHOUT ITS AUTHORIZED CONSENT, BUT HIS ANOMALOUS GROUND FOR DECISION
IS FOLLOWED BY THE BOOTSTRAP OPERATION THAT "PENNSYLVANIA PROCEDURE
SHOULD NOT BE CONSIDERED AS BEING AN UNCONSENTED SUIT AGAINST THE
UNITED STATES, ANY MORE THAN THE WHOLLY PRIVATE PROCEEDING IN THE
CALIFORNIA CASE." 

THE FACT ABOUT IT IS THAT THE COURT PRESUPPOSES, WHOLLY APART FROM 28
U.S.C. SEC. 2410 AND 26 U.S.C. SEC. 7424, THAT THE "LONG-STANDING STATE
PROCEDURES" APPLICABLE TO THE EXTINGUISHMENT OF JUNIOR PRIVATE LIENS
APPLY EQUALLY TO JUNIOR GOVERNMENT ONES.  IN THE LIGHT OF THE FACT THAT
FEDERAL LAW WITH REGARD TO THE MANNER IN WHICH LIENS OF THE UNITED
STATES MAY BE RELEASED OR EXTINGUISHED HAS BEEN ON THE BOOKS IN ONE
FORM OR ANOTHER FOR OVER 90 YEARS, THIS IS INDEED A VIOLENT
ASSUMPTION.   UNDER FEDERAL LAW, A PRIOR-FILED LIENHOLDER HAS FOR SOME
30 YEARS ENJOYED THREE SPECIFIC REMEDIES THAT HE MAY FOLLOW TO SECURE
THE RELEASE OR EXTINGUISHMENT OF A JUNIOR GOVERNMENT LIEN.  FIRST, HE
MAY APPLY TO THE SECRETARY OF THE TREASURY OR HIS DELEGATE TO RELEASE
THE LIEN UNDER SEC. 6325 OF THE INTERNAL REVENUE CODE.  (FN2)  SECTION
6325 AUTHORIZES THAT OFFICIAL (1) TO EXECUTE A RELEASE WHEN THE
LIABILITY IS SATISFIED OR HAS BECOME LEGALLY UNENFORCEABLE OR UPON THE
FURNISHING OF A BOND CONDITIONED ON THE PAYMENT OF THE AMOUNT OF THE
LIEN, OR (2) TO EXECUTE A PARTIAL RELEASE OF THE PROPERTY INVOLVED
WHERE SUCH A DISCHARGE WILL NOT JEOPARDIZE THE GOVERNMENT'S INTEREST. 
THIS PROVISION, IN ITSELF, SEEMS ENTIRELY ADEQUATE TO PROTECT
MONEYLENDERS FROM SUFFERING ANY INJUSTICE, BUT THE CONGRESS DID NOT
STOP THERE.  IT GAVE SUCH A LIENHOLDER TWO ADDITIONAL REMEDIES.  THESE
ALTERNATIVE AND ADDITIONAL METHODS ARE SET OUT IN 26 U.S.C. SEC. 7424
AND 28 U.S.C. SEC. 2410. 

PRIOR-FILED LIEN BY CIVIL ACTION AGAINST THE UNITED STATES AS PROVIDED
IN SEC. 7403, WHICH WAS ORIGINALLY PASSED IN 1868 AS A REMEDY AVAILABLE
ONLY TO THE GOVERNMENT.  AS A PROTECTION TO THE UNITED STATES, SEC.
7424 FIRST REQUIRES THAT THE MORTGAGEE REQUEST THE SECRETARY OF THE
TREASURY TO AUTHORIZE THE FILING OF AN ACTION UNDER SEC. 7403.  UPON
THE SECRETARY'S FAILURE TO AUTHORIZE SUCH AN ACTION WITHIN SIX MONTHS,
THE MORTGAGEE MAY APPLY TO THE DISTRICT COURT FOR RELIEF.  NOTICE TO
ALL LIENHOLDERS, INCLUDING THE UNITED STATES, IS REQUIRED.  THE
MAJORITY OPINION EMPHASIZES THAT NO REDEMPTION RIGHT IS GIVEN THE
GOVERNMENT IN A PROCEEDING UNDER SEC. 7424 AND SEEMS TO PLACE SOME
RELIANCE FOR ITS ACTION ON THE ABSENCE OF SUCH RELIEF.  HOWEVER, THIS
POLICY OF THE CONGRESS IS ENTIRELY UNDERSTANDABLE WHEN WE CONSIDER THAT
SEC. 7424 FIRST REQUIRES APPLICATION TO THE SECRETARY.  THIS
REQUIREMENT GIVES THAT OFFICIAL AMPLE TIME BEFORE SUIT IS FILED TO PAY
OFF THE PRIOR LIEN IF ADVANTAGEOUS TO THE GOVERNMENT.  THIS IS, OF
COURSE, TANTAMOUNT TO A FULL REDEMPTION RIGHT AFTER SALE.  THERE WOULD
BE NO POINT IN PERMITTING SUCH RELIEF AFTER SUIT WHEN ITS EQUIVALENT
WAS AVAILABLE TO THE SECRETARY FOR SIX MONTHS DURING THE TIME WHEN HE
WAS CONSIDERING THE MORTGAGEE'S REQUEST. 

IN ADDITION TO THIS PROCEDURE, THE CONGRESS IN SEC. 2410 GAVE THE
MORTGAGEE AN ADDITIONAL AND SEPARATE METHOD BY WHICH TO PROCEED.  IT
DOES NOT REQUIRE A REQUEST TO BE FILED WITH THE SECRETARY BUT PERMITS
THE IMMEDIATE INVOCATION OF JUDICIAL REMEDIES IN STATE OR FEDERAL
COURTS.  ITS RELIEF EXTENDS TO ANY TYPE OF MORTGAGE OR LIEN CLAIMED BY
THE UNITED STATES, WHETHER OR NOT FOR TAXES.  THE UNITED STATES, OF
COURSE, MUST BE MADE A PARTY AND GIVEN NOTICE.  JUDICIAL SALES MAY BE
ORDERED, HAVING THE SAME EFFECT AS THEY WOULD UNDER STATE LAW, AND THE
UNITED STATES IS GIVEN ONE YEAR IN WHICH TO REDEEM.  OBVIOUSLY THIS
PROVISION WAS INSERTED TO PROTECT THE GOVERNMENT.  UNLIKE A SEC. 7424
PROCEEDING, IT ORDINARILY HAS RECEIVED NO NOTICE OF THE PRIOR MORTGAGE
LIEN BEFORE THE MORTGAGEE FILES SUIT.  THE CONGRESS, IN FAIRNESS TO THE
GOVERNMENT, GAVE IT ONE YEAR AFTER THE JUDGMENT TO REIMBURSE THE
LIENHOLDER AND REDEEM THE PROPERTY IN PROTECTION OF THE GOVERNMENT'S
INTEREST. 

NOW LET US TAKE UP SERIATIM THE GROUNDS ON WHICH THE COURT DISREGARDS
THIS CAREFULLY DEVISED SCHEME FOR PROTECTING THE GOVERNMENT'S LIENS. 
IT SAYS THAT CERTAIN "FEATURES" OF THE ACTS MAKE "CLEAR" THAT THE
FEDERAL REMEDIES ARE NOT EXCLUSIVE.  THE FIRST TWO FEATURES HAVE TO DO
WITH THE USE BY THE CONGRESS OF THE WORD "MAY" IN GRANTING PERMISSION
TO FILE THE SUIT AND THE PHRASE THE COURT "MAY DECREE A SALE" IN
DEALING WITH THE ACTION TO BE TAKEN IN THE SAME.  BUT STATUTORY
INTERPRETATION MUST NOT BE REDUCED TO AN EXERCISE IN SEMANTOLOGY.  IN
STATING THAT A MORTGAGEE "MAY ...  FILE A PETITION" CONGRESS DID NOT -
BECAUSE IT COULD NOT - REQUIRE HIM TO DO SO.  HE "MAY" FILE SUIT IF HE
WISHES OR HE CAN TAKE HIS CHANCES THAT HIS TITLE IS SUPERIOR, AS
THOUSANDS HAVE IN SUCH MATTERS.  LIKEWISE, IN GRANTING THE PRIVILEGE
THAT "THE UNITED STATES MAY BE NAMED A PARTY" THE CONGRESS EMPLOYED THE
WORD "MAY" IN ITS ORDINARY, FAMILIAR USAGE AND UNDERSTANDING. 
CONGRESSIONAL EXPRESSION, AFTER ALL, MUST NOT NECESSARILY BE OF
ADDISONIAN DICTION.  REACHING THE COURT'S FURTHER OBJECTION TO THE WORD
"MAY" IN THE CONGRESSIONAL LANGUAGE THAT THE COURT "MAY DECREE A SALE,"
IT IS SUBMITTED IN ALL LOGIC THAT, SINCE OTHER RELIEF IS AVAILABLE IN
THE SUIT, I.E., RECEIVERSHIP, QUIETING OF TITLE, ET CETERA, CONGRESS
COULD USE NO OTHER WORD.  CERTAINLY THE WORD "SHALL" WOULD BE
INAPPLICABLE.  IT WAS LEFT UP TO THE COURT TO DECREE THE APPROPRIATE
RELIEF AFTER A FULL HEARING AND IF A SALE WAS IN ORDER TO FIX THE
MANNER, TIME AND CONDITION OF THE SAME.  THESE ARE DETAILS THE CONGRESS
APPROPRIATELY AND TRADITIONALLY LEAVES TO COURTS. 

THE THIRD "FEATURE" OF WHICH THE MAJORITY MAKES MUCH IS THE FACT THAT
THE FEDERAL ACTS DO NOT "ON THEIR FACE" EXCLUDE STATE PROCEDURES.  BUT
THIS IS A COMMONPLACE IN FEDERAL LEGISLATION, HINES V. DAVIDOWITZ, 312
U.S. 52, 67 (1941), AND IS BY NO MEANS THE TEST.  SEE PENNSYLVANIA V.
NELSON, 350 U.S. 497 (1956).  THE MAJORITY SAYS THAT, SINCE SEC.
2410(A) GRANTS SPECIFIC PERMISSION TO FILE A QUIET-TITLE SUIT, THIS
"CONTEMPLATES A DECLARATION BY THE FEDERAL COURTS OF PREVIOUSLY CREATED
LEGAL CONSEQUENCES."  THIS PROVISION WAS SUGGESTED IN 1941 BY THE THEN
ATTORNEY GENERAL JACKSON.  BEING A PRACTICAL LAWYER WITH A LARGE
GENERAL PRACTICE, HE KNEW THAT MANY TITLES WERE THEN CLOUDED BY
GOVERNMENT LIENS AND THAT MANY TIMES IN THE FUTURE "PERSONS ACTING IN
GOOD FAITH  ...  WITHOUT KNOWLEDGE OF THE GOVERNMENT LIEN OR IN THE
BELIEF THAT THE LIEN HAD BEEN EXTINGUISHED" WOULD LIKEWISE HAVE NO
REMEDY UNDER WHICH TO CLEAR THEIR TITLES.  THIS MOVED HIM TO MAKE THE
SUGGESTION.  BUT, BEING THE LAWYER HE WAS, I AM CONFIDENT HE NEVER
DREAMED THAT HIS SUGGESTION WOULD STRIP THE GOVERNMENT HE WAS SO
CAPABLY REPRESENTING OF NOTICE IN PRIVATE TRUSTEE SALES AND DEPRIVE IT
OF ANY DEFENSE IN SUCH A QUIET-TITLE SUIT.  SUCH A CONSTRUCTION OF THIS
CLAUSE IN SEC. 2410(A) ACTS AS A REPEALER OF ALL OTHER PROVISIONS OF
THESE FEDERAL STATUTES.  WHY WOULD THE CONGRESS GIVE ITS CONSENT TO SUE
THE UNITED STATES AS A QUID PRO QUO OF THE GOVERNMENT HAVING A FAIR
CHANCE TO TEST OUT THE VALIDITY OF THE PRIOR-CLAIMED PRIVATE LIEN, AND
THEN TURN RIGHT AROUND AND LET THE STATE PROCEDURE THROUGH A TRUSTEE'S
SALE WIPE OUT THE GOVERNMENT LIEN WITHOUT NOTICE, HEARING OR REDEMPTION
RIGHTS?  IN THIS MANNER, ACTION UNDER STATE LAW WIPES OUT FEDERAL
PROCEDURE ENTIRELY - WITH THE EXCEPTION OF THE QUIET-TITLE SUIT AND
EVEN IN IT THE GOVERNMENT, ACCORDING TO THE HOLDING TODAY, HAS NONE OF
THE FEDERAL STATUTORY PROTECTIONS.  THE TRUSTEE'S DEED UNDER THE DEED
OF TRUST SALE HAS, THE COURT SAYS, EXTINGUISHED THE INFERIOR GOVERNMENT
LIEN UNDER STATE LAW AND THAT IS BINDING ON THE GOVERNMENT.  IT CANNOT
CONTEST THE BONA FIDES AND PRIORITY OF THE DEED OF TRUST, THE AMOUNT
DUE UNDER IT, THE REGULARITY, FAIRNESS OR VALIDITY OF THE EXERCISED
POWER OF SALE, OR ANY OTHER INFIRMITIES IN THE SALE, INCLUDING FRAUD OR
COLLUSION - UNLESS ALLOWED BY STATE LAW.  TO BE ABLE TO CONSTRUE A
FEDERAL STATUTE SO AS TO WIPE OUT THE GOVERNMENT LIEN, WHICH ON THE
FACE OF THE STATUTE WAS TO BE TESTED ON SPECIFIC CONDITIONS WRITTEN
THEREIN "FOR THE PROTECTION OF THE UNITED STATES," STRETCHES THE
IMAGINATION FOR ME BEYOND THE BREAKING POINT. 

OTHER THAN THESE "FEATURES" OF THE FEDERAL ACTS, THE "LONG-STANDING
STATE PROCEDURES" AND THE "MATTER OF FEDERAL POLICY," THE COURT GIVES
NO REASON FOR ADOPTING STATE PROCEDURES IN EXTINGUISHING GOVERNMENT
LIENS.  OF COURSE, IF, AS THE COURT HOLDS, THE PRINCIPLE OF SOVEREIGN
IMMUNITY WERE NOT APPLICABLE, AND IF THE CONGRESS HAD NOT ACTED IN THE
FIELD, THE COURT COULD "FASHION THE GOVERNING RULE OF LAW."  CLEARFIELD
TRUST CO. V. UNITED STATES, 318 U.S. 363, 367 (1943).  BUT THE ADOPTION
OF LOCAL LAW, EVEN IN THAT EVENT, WOULD BE "SINGULARLY INAPPROPRIATE." 
THE TAX LIABILITIES INVOLVED HERE, AS WELL AS THE LIENS SECURING THE
SAME, ARE ALL FEDERALLY CREATED AND THE RIGHTS ARISING THEREFROM WOULD
BE GOVERNED BY FEDERAL LAW.  THE ENFORCEMENT OF THESE RIGHTS, HOWEVER,
WOULD BE CONTROLLED BY STATE LAW.  WOULD THIS INCLUDE THE VALIDITY OF
THE TAX AS ASSESSED BY THE COLLECTOR AND ASSERTED IN THE LIEN?  WHILE
SEC. 2410 AND SEC. 7424 DO NOT PERMIT THE VALIDITY OF THE TAX TO BE
TESTED UNDER THEIR PROCEDURES, WHAT ABOUT STATE LAW?  CERTAINLY THIS
WOULD OPEN UP ENDLESS PROBLEMS.   BUT BE THAT AS IT MAY, THE PROCEDURES
OF ENFORCEMENT THEMSELVES WOULD VARY IN EACH STATE, RESULTING IN 50
SEPARATE AND DIFFERENT RULES OF PROCEDURE, ENTAILING VARYING
INTERPRETATIONS, PRACTICES AND PITFALLS PECULIAR TO EACH JURISDICTION. 
WOULD IT NOT BE BETTER TO HAVE A UNIFORM SYSTEM IN THE TAX COLLECTION
MACHINERY OF THE NATION?  IN CLEARFIELD THE COURT CONCLUDED THAT: 

"THE ISSUANCE OF COMMERCIAL PAPER BY THE UNITED STATES IS ON A VAST
SCALE AND TRANSACTIONS IN THAT PAPER FROM ISSUANCE TO PAYMENT WILL
COMMONLY OCCUR IN SEVERAL STATES.  THE APPLICATION OF STATE LAW, EVEN
WITHOUT THE CONFLICT OF LAWS RULES OF THE FORUM, WOULD SUBJECT THE
RIGHTS AND DUTIES OF THE UNITED STATES TO EXCEPTIONAL UNCERTAINTY.  IT
WOULD LEAD TO GREAT DIVERSITY IN RESULTS BY MAKING IDENTICAL
TRANSACTIONS SUBJECT TO THE VAGARIES OF THE LAWS OF THE SEVERAL
STATES.  THE DESIRABILITY OF A UNIFORM RULE IS PLAIN."  318 U.S., AT
367. 

I SUBMIT THAT THESE GROUNDS FOR UNIFORMITY SO FORCEFULLY SPELLED OUT
IN CLEARFIELD ARE EVEN MORE COMPELLING HERE WHERE THE REVENUE OF THE
UNITED STATES IS IMPERILED.  THE IMPORTANCE OF UNIFORMITY IN TAX
PROCEDURES IS WELL ILLUSTRATED IN UNITED STATES V. GILBERT ASSOCIATES,
345 U.S. 361, 364 (1953), WHERE WE AGAIN EMPHASIZED ITS NECESSITY IN
THESE WORDS: 

"A CARDINAL PRINCIPLE OF CONGRESS IN ITS TAX SCHEME IS UNIFORMITY, AS
FAR AS MAY BE.  THEREFORE, A 'JUDGMENT CREDITOR' (AS USED IN 26 U.S.C.
(1946 ED.)  SEC.  3672) SHOULD HAVE THE SAME APPLICATION IN ALL THE
STATES." 

IT IS THE MORE IMPORTANT THAT, IF MONEYLENDERS HAVING PRIOR-FILED
LIENS ARE TO BE GIVEN THE RIGHT TO EXTINGUISH INFERIOR GOVERNMENT
LIENS, IT BE DONE ON A UNIFORM BASIS APPLICABLE EQUALLY IN ALL OF THE
STATES. 

HOWEVER, THERE IS AN EVEN MORE SERIOUS OBJECTION TO THE ADOPTION OF
STATE PROCEDURES IN THESE CASES.  AS WE HAVE SEEN, THE GOVERNMENT IS
LEFT WITHOUT EVEN THE PROTECTION OF NOTICE.  THE UNITED STATES' LIEN
WILL BE WIPED OUT BEFORE ITS TAX OFFICIALS EVEN KNOW OF THE FORECLOSURE
UNDER THE PRIOR-FILED MORTGAGE.  IT WILL BE LEFT WITHOUT ANY
PROTECTION.  WITH THOUSANDS OF TRUSTEES' SALES GOING ON OVER THE
COUNTRY EACH DAY THE GOVERNMENT'S REVENUE WILL BE SERIOUSLY
JEOPARDIZED. 

WHILE I WOULD HOLD THE FEDERAL PROCEDURES EXCLUSIVE, IF THE COURT
INSISTS THAT STATE LAW BE MADE APPLICABLE WOULD NOT A "JUST METHOD OF
PROCEEDING" AT LEAST INCLUDE A RULE THAT TAX LIENS OF THE UNITED STATES
CANNOT BE EXTINGUISHED IN ANY STATE PROCEEDING - BY TRUSTEE'S SALE OR
THROUGH JUDICIAL PROCESS - WITHOUT GIVING THE UNITED STATES NOTICE
THEREOF?  WITH ALL OF ITS MILLIONS OF TAX TRANSACTIONS, HOW ELSE CAN
THE PUBLIC TREASURY BE PROTECTED?  NOR WOULD SUCH A REQUIREMENT "INJECT
OURSELVES INTO THE NETWORK OF COMPETING PRIVATE PROPERTY INTERESTS" OR
DISPLACE "WELL-ESTABLISHED STATE PROCEDURES GOVERNING THEIR
ENFORCEMENT."  THE STATE COULD PROCEED AS IT WISHES, WITHIN FOURTEENTH
AMENDMENT REQUIREMENTS, TO SET UP AND ENFORCE ITS OWN PROCEDURES AS TO
PRIVATE LIENHOLDERS.  ONLY IN THOSE CASES WHERE GOVERNMENT LIENS ARE
INVOLVED WOULD LIENHOLDERS HAVE TO GIVE NOTICE TO THE UNITED STATES. 
THIS WOULD PROTECT THE PUBLIC REVENUE AND CAUSE NO MORE HARDSHIP ON
MONEYLENDERS THAN THEY AGREED TO AND HAVE UP UNTIL TODAY HAD TO BEAR
UNDER SEC. 2410 AND SEC. 7424. 

I WOULD THEREFORE REVERSE THE JUDGMENT IN NO. 137 AND AFFIRM THAT IN
NO. 183. 

FN1  FOR THE SAKE OF BREVITY, SEE NOTE 11, PP. 247-249, OF THE
MAJORITY OPINION FOR REFERENCES TO, AND CITATIONS OF AUTHORITIES FOR,
THESE QUOTATIONS. 

FN2  "SEC.  6325.  RELEASE OF LIEN OR PARTIAL DISCHARGE OF PROPERTY. 

"(A)  RELEASE OF LIEN.  - SUBJECT TO SUCH RULES OR REGULATIONS AS THE
SECRETARY OR HIS DELEGATE MAY PRESCRIBE, THE SECRETARY OR HIS DELEGATE
MAY ISSUE A CERTIFICATE OF RELEASE OF ANY LIEN IMPOSED WITH RESPECT TO
ANY INTERNAL REVENUE TAX IF: 

"(1)  LIABILITY SATISFIED OR UNENFORCEABLE.  - THE SECRETARY OR HIS
DELEGATE FINDS THAT THE LIABILITY FOR THE AMOUNT ASSESSED, TOGETHER
WITH ALL INTEREST IN RESPECT THEREOF, HAS BEEN FULLY SATISFIED, HAS
BECOME LEGALLY UNENFORCEABLE, OR, IN THE CASE OF THE ESTATE TAX IMPOSED
BY CHAPTER 11 OR THE GIFT TAX IMPOSED BY CHAPTER 12, HAS BEEN FULLY
SATISFIED OR PROVIDED FOR; OR: 

"(2)  BOND ACCEPTED.  - THERE IS FURNISHED TO THE SECRETARY OR HIS
DELEGATE AND ACCEPTED BY HIM A BOND THAT IS CONDITIONED UPON THE
PAYMENT OF THE AMOUNT ASSESSED, TOGETHER WITH ALL INTEREST IN RESPECT
THEREOF, WITHIN THE TIME PRESCRIBED BY LAW (INCLUDING ANY EXTENSION OF
SUCH TIME), AND THAT IS IN ACCORDANCE WITH SUCH REQUIREMENTS RELATING
TO TERMS, CONDITIONS, AND FORM OF THE BOND AND SURETIES THEREON, AS MAY
BE SPECIFIED BY SUCH RULES OR REGULATIONS. 

"(B)  PARTIAL DISCHARGE OF PROPERTY. 

"(1)  PROPERTY DOUBLE THE AMOUNT OF THE LIABILITY.  - SUBJECT TO SUCH
RULES OR REGULATIONS AS THE SECRETARY OR HIS DELEGATE MAY PRESCRIBE,
THE SECRETARY OR HIS DELEGATE MAY ISSUE A CERTIFICATE OF DISCHARGE OF
ANY PART OF THE PROPERTY SUBJECT TO ANY LIEN IMPOSED UNDER THIS CHAPTER
IF THE SECRETARY OR HIS DELEGATE FINDS THAT THE FAIR MARKET VALUE OF
THAT PART OF SUCH PROPERTY REMAINING SUBJECT TO THE LIEN IS AT LEAST
DOUBLE THE AMOUNT OF THE UNSATISFIED LIABILITY SECURED BY SUCH LIEN AND
THE AMOUNT OF ALL OTHER LIENS UPON SUCH PROPERTY WHICH HAVE PRIORITY TO
SUCH LIEN. 

"(2)  PART PAYMENT OR INTEREST OF UNITED STATES VALUELESS.  - SUBJECT
TO SUCH RULES OR REGULATIONS AS THE SECRETARY OR HIS DELEGATE MAY
PRESCRIBE, THE SECRETARY OR HIS DELEGATE MAY ISSUE A CERTIFICATE OF
DISCHARGE OF ANY PART OF THE PROPERTY SUBJECT TO THE LIEN IF: 

"(A)  THERE IS PAID OVER TO THE SECRETARY OR HIS DELEGATE IN PART
SATISFACTION OF THE LIABILITY SECURED BY THE LIEN AN AMOUNT DETERMINED
BY THE SECRETARY OR HIS DELEGATE, WHICH SHALL NOT BE LESS THAN THE
VALUE, AS DETERMINED BY THE SECRETARY OR HIS DELEGATE, OF THE INTEREST
OF THE UNITED STATES IN THE PART TO BE SO DISCHARGED, OR: 

"(B)  THE SECRETARY OR HIS DELEGATE DETERMINES AT ANY TIME THAT THE
INTEREST OF THE UNITED STATES IN THE PART TO BE SO DISCHARGED HAS NO
VALUE. 

IN DETERMINING THE VALUE OF THE INTEREST OF THE UNITED STATES IN THE
PART TO BE SO DISCHARGED, THE SECRETARY OR HIS DELEGATE SHALL GIVE
CONSIDERATION TO THE FAIR MARKET VALUE OF SUCH PART AND TO SUCH LIENS
THEREON AS HAVE PRIORITY TO THE LIEN OF THE UNITED STATES. 

"(C) EFFECT OF CERTIFICATE OF RELEASE OR PARTIAL DISCHARGE.  - A
CERTIFICATE OF RELASE OR OF PARTIAL DISCHARGE ISSUED UNDER THIS SECTION
SHALL BE HELD CONCLUSIVE THAT THE LIEN UPON THE PROPERTY COVERED BY THE
CERTIFICATE IS EXTINGUISHED."  68A STAT. 781, 26 U.S.C. SEC. 6325. 
..END :








TEXAS GAS TRANSMISSION CORP. V. SHELL OIL CO. 363 U.S. 263 


NO. 167.  ARGUED APRIL 20-21, 1960.  - DECIDED JUNE 13, 1960.* - 263
F.2D 223, REVERSED. 

*TOGETHER WITH NO. 170, FEDERAL POWER COMMISSION V. SHELL OIL CO.,
ALSO ON CERTIORARI TO THE SAME COURT. 


THE "FAVORED-NATION" CLAUSE OF A CONTRACT FOR THE SALE OF NATURAL GAS
BY A RESPONDENT TO A PIPELINE COMPANY PROVIDED THAT RESPONDENT WOULD BE
ENTITLED TO A PRICE INCREASE SHOULD THE PIPELINE COMPANY THEREAFTER
"ENTER INTO A CONTRACT PROVIDING FOR THE PURCHASE BY IT OF GAS" AT A
HIGHER PRICE.  THEREAFTER, THE PIPELINE COMPANY AGREED TO A HIGHER
PRICE UNDER A PRE-EXISTING, LONG-TERM CONTRACT WITH ANOTHER PRODUCER,
WHICH REQUIRED THAT THE PRICE BE REDETERMINED EVERY FIVE YEARS, EITHER
BY AGREEMENT OF THE PARTIES OR BY ARBITRATION.  IN PROCEEDINGS UNDER
THE NATURAL GAS ACT TO DETERMINE ITS EFFECTIVE RATE AS OF JUNE 7, 1954,
RESPONDENT FILED ITS CONTRACT WITH THE FEDERAL POWER COMMISSION AS A
RATE SCHEDULE.  THE COMMISSION HELD THAT THE PRICE REDETERMINATION
UNDER THE PIPELINE COMPANY'S PRE-EXISTING CONTRACT WITH THE OTHER
PRODUCER WAS NOT A CONTRACT FOR THE PURCHASE OF GAS WITHIN THE MEANING
OF THE "FAVORED-NATION" CLAUSE IN RESPONDENT'S CONTRACT AND THAT,
THEREFORE, THE PRICE PAYABLE BY THE PIPELINE COMPANY TO RESPONDENT HAD
NOT BEEN INCREASED.  THE COURT OF APPEALS VACATED THE COMMISSION'S
ORDER.  HELD: 

1.  SINCE THE COMMISSION DISPOSED OF THE CASE SOLELY UPON ITS VIEW OF
THE RESULT CALLED FOR BY THE APPLICATION OF ORDINARY RULES OF CONTRACT
CONSTRUCTION EMPLOYED BY THE COURTS AND DID NOT RELY ON MATTERS WITHIN
ITS OWN SPECIAL COMPETENCE, THE COURT OF APPEALS WAS JUSTIFIED IN
MAKING ITS OWN INDEPENDENT DETERMINATION OF THE CORRECT APPLICATION OF
THE GOVERNING PRINCIPLES.  PP. 268-270. 

2.  IN THE CIRCUMSTANCES, CONSIDERATION OF THE SCOPE OF JUDICIAL
REVIEW OF ADMINISTRATIVE DETERMINATIONS NEED NOT DETER THIS COURT FROM
REVIEWING THE DECISION OF THE COURT OF APPEALS AND DECIDING THE PROPER
CONSTRUCTION OF THE "FAVORED-NATION" CLAUSE.  P. 270. 

3.  THE COMMISSION CORRECTLY CONSTRUED THE "FAVORED-NATION" CLAUSE AS
NOT EFFECTING AN INCREASE IN RESPONDENT'S PRICE BY REASON OF THE
INCREASED PRICE AGREED UPON BETWEEN THE PIPELINE COMPANY AND THE OTHER
PRODUCER UNDER THEIR PRE-EXISTING AGREEMENT.  PP. 270-276. 

4.  THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT
OF APPEALS FOR FURTHER PROCEEDINGS, INCLUDING CONSIDERATION OF THE
QUESTION WHETHER THE ENFORCEABILITY OF THE CONTRACT BETWEEN THE
PIPELINE COMPANY AND THE OTHER PRODUCER IS MATERIAL TO THE DECISION OF
THIS CASE, AND, IF SO, WHETHER THAT CONTRACT WAS ENFORCEABLE.  PP. 276
277. 

TEXAS GAS TRANSMISSION CORP. ET AL. V. SHELL OIL CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

ONE OF THE SERIES OF ORDERS ISSUED BY THE FEDERAL POWER COMMISSION
AFTER THIS COURT'S DECISION IN PHILLIPS PETROLEUM CO. V. WISCONSIN, 347
U.S. 672, REQUIRED AFFECTED INDEPENDENT PRODUCERS OF NATURAL GAS TO
SUBMIT RATE SCHEDULES IN EFFECT ON JUNE 7, 1954, THE DATE PHILLIPS WAS
DECIDED.  (FN1)  THE RESPONDENT, SHELL OIL COMPANY, ON NOVEMBER 18,
1954, SUBMITTED ITS CONTRACT DATED MAY 1, 1951, WITH TEXAS GAS
TRANSMISSION CORPORATION, (FN2) AS A RATE SCHEDULE ON JUNE 7, 1954, FOR
GAS FROM ITS CHALKLEY FIELD, CAMERON PARISH, LOUISIANA.  THE
COMMISSION, ON MARCH 13, 1957, ACCEPTED THE CONTRACT AS A RATE SCHEDULE
BUT ORDERED A HEARING FOR THE PURPOSE OF DETERMINING AND FIXING THE
PRICE EFFECTIVE THEREUNDER ON JUNE 7, 1954.  (FN3) 

AT THE HEARING, TEXAS GAS CONTENDED THAT PARAGRAPH 1 OF ARTICLE VI OF
THE CONTRACT SPECIFYING THE PRICE OF 8.997 CENTS PER THOUSAND CUBIC
FEET (MCF.)  FOR THE PERIOD WHICH INCLUDED JUNE 7, 1954, ESTABLISHED
THAT PRICE FOR THE DATE.  (FN4)  THIS WAS THE PRICE AT WHICH SHELL WAS
BILLING TEXAS GAS FOR GAS AT THE TIME.  HOWEVER, SHELL CONTENDED THAT
WHEN TEXAS GAS, PRIOR TO JUNE 7, 1954, BEGAN PAYING 12.5 CENTS PER
MCF.  TO ATLANTIC REFINING COMPANY, FOR GAS PRODUCED IN NEARBY ACADIA
PARISH, SHELL BECAME ENTITLED TO RECEIVE THE SAME PRICE UNDER THE SO
CALLED "FAVORED NATION" CLAUSE OF THE SHELL CONTRACT.  THAT CLAUSE,
PARAGRAPH 3 OF ARTICLE VI, PROVIDES THAT "IF AT ANY TIME AFTER DECEMBER
31, 1951, TEXAS GAS SHALL ENTER INTO A CONTRACT PROVIDING FOR THE
PURCHASE BY IT OF GAS" AT A HIGHER PRICE THAN THAT CURRENTLY BEING PAID
UNDER THIS - THE SHELL - CONTRACT, THE PRICE CURRENTLY BEING PAID WILL
BE INCREASED TO EQUAL THE "PRICE PAYABLE UNDER SUCH OTHER CONTRACT." 
(FN5) 

WHEN TEXAS GAS AND SHELL MADE THE CONTRACT OF MAY 1, 1951, ATLANTIC
REFINING COMPANY WAS SELLING GAS TO THE FORMER FROM ACADIA PARISH
PRODUCTION UNDER A CONTRACT CONCLUDED IN 1943 FOR A 25-YEAR TERM.  THE
ATLANTIC CONTRACT SPECIFIED A PRICE EFFECTIVE FOR THE FIRST FIVE YEARS
AND PROVIDED THAT DURING SUCCEEDING FIVE-YEAR PERIODS, "PRICES TO BE
PAID WILL BE DETERMINED AT THE BEGINNING OF EACH PERIOD  ...  ."  "THE
PRICE TO BE PAID  ...  IS TO BE AGREED UPON  ...  AFTER A SURVEY OF
PREVAILING PRICES FOR GAS BEING SOLD IN SIMILAR QUANTITIES IN THE
SOUTHWESTERN PART OF LOUISIANA."  THE CONTRACT FURTHER PROVIDED THAT
"IN THE EVENT THAT THE PARTIES ARE UNABLE TO AGREE UPON THE PRICE ...
SUCH DETERMINATION SHALL BE SUBMITTED TO ARBITRATION"; THE ARBITRATORS
TO BE SELECTED AS PROVIDED IN THE AGREEMENT.  (FN6)  NEGOTIATIONS
BETWEEN ATLANTIC AND TEXAS GAS AS TO THE PRICE TO BE EFFECTIVE FOR THE
FIVE-YEAR PERIOD BEGINNING SEPTEMBER 1, 1953, TERMINATED WITH A LETTER
AGREEMENT DATED FEBRUARY 17, 1954, WHICH RECITED: "IT IS HEREBY AGREED
THAT THE PRICE TO BE PAID  ...  BETWEEN SEPTEMBER 1, 1953, AND AUGUST
31, 1958, BOTH INCLUSIVE, SHALL BE 12.2 CENTS NET" PLUS .3 CENT FOR
SEVERANCE TAX, OR 12.5 CENTS.  IT IS THIS LETTER AGREEMENT WHICH SHELL
CONTENDS TRIGGERED THE SHELL CONTRACT'S "FAVORED NATION" CLAUSE. 

THE COMMISSION'S EXAMINER ISSUED HIS DECISION ON AUGUST 9, 1957.  HE
HELD THAT IN MAKING THE ATLANTIC LETTER AGREEMENT TEXAS GAS "ENTERED
INTO A CONTRACT PROVIDING FOR THE PURCHASE BY IT OF GAS" WITHIN THE
MEANING OF THE SHELL "FAVORED NATION" CLAUSE AND THAT THIS HAD
ESCALATED THE SHELL PRICE TO 12.5 CENTS PER MCF.  THE COMMISSION
REVERSED THE EXAMINER'S DECISION AND DETERMINED THAT THE EFFECTIVE
PRICE ON JUNE 7, 1954, WAS 8.997 CENTS PER MCF., THE PRICE FIXED IN
PARAGRAPH 1 OF ARTICLE VI.  18 F.P.C. 617.  SHELL'S PETITION FOR
REHEARING WAS DENIED.  19 F.P.C. 74.  THE COURT OF APPEALS FOR THE
THIRD CIRCUIT, ON REVIEW, VACATED THE COMMISSION'S ORDER.  263 F.2D
223.  WE GRANTED THE SEPARATE PETITIONS FOR CERTIORARI OF TEXAS GAS AND
LOUISVILLE GAS AND ELECTRIC COMPANY IN NO. 167, AND OF THE FEDERAL
POWER COMMISSION IN NO. 170, BEING PARTICULARLY MOVED TO DO SO BY THE
CONTENTION MADE IN BOTH PETITIONS THAT THE COURT OF APPEALS EXCEEDED
THE APPROPRIATE SCOPE OF JUDICIAL REVIEW OF THE COMMISSION'S
DETERMINATION.  361 U.S. 811. 

WE MAY ASSUME WITH THE PETITIONERS THAT THE COURT OF APPEALS DID NOT
TREAT THE COMMISSION'S ORDER AS ONE WHICH IT WAS REQUIRED TO ACCEPT IF
REASONABLY SUPPORTED IN THE RECORD, AND INSTEAD CONSIDERED THAT IT
COULD EXAMINE DE NOVO THE QUESTION OF THE PROPER INTERPRETATION TO BE
GIVEN THE SHELL "FAVORED NATION" CLAUSE.  THE PETITIONERS' ARGUMENT
THAT THE COURT OF APPEALS EXCEEDED THE ALLOWABLE LIMITS OF JUDICIAL
REVIEW IS BASED UPON THE PREMISE THAT THE COMMISSION'S INTERPRETATION
OF THE "FAVORED NATION" CLAUSE REFLECTS THE APPLICATION OF ITS EXPERT
KNOWLEDGE AND JUDGMENTS TO A HIGHLY TECHNICAL FIELD, SO THAT THE COURT
OF APPEALS WAS REQUIRED TO ACCEPT THE COMMISSION'S INTERPRETATION IF IT
HAD "'WARRANT IN THE RECORD' AND A 'REASONABLE BASIS IN LAW,'" CITING
UNEMPLOYMENT COMPENSATION COMM'N V. ARAGON, 329 U.S. 143, 153-154.  BUT
THE RECORD NOWHERE DISCLOSES THAT THE COMMISSION ARRIVED AT ITS
INTERPRETATION OF THE "FAVORED NATION" CLAUSE ON THE BASIS OF
SPECIALIZED KNOWLEDGE GAINED FROM EXPERIENCE IN THE REGULATION OF THE
NATURAL GAS BUSINESS, OR UPON THE BASIS OF ANY TRADE PRACTICE
CONCERNING "FAVORED NATION" CLAUSES.  ON THE CONTRARY THE OPINIONS OF
THE EXAMINER AND THE COMMISSION SHOW THAT BOTH TREATED THE QUESTION AS
ONE TO BE DETERMINED SIMPLY BY THE APPLICATION OF ORDINARY RULES OF
CONTRACT CONSTRUCTION.  THE EXAMINER STATED THAT "THE LANGUAGE OF THE
"FAVORED NATION" CLAUSE IS CLEAR ENOUGH TO REVEAL THE INTENT OF THE
PARTIES WITHOUT RESORT TO PAROLE EVIDENCE OR SELF-SERVING MEMORANDA
...  .  ITS PLAIN MEANING IS  ...  SHELL SOUGHT TO CAUSE ITS SELLING
PRICE TO RISE TO THAT CALLED FOR BY ANY OTHER CONTRACT BUYER MADE FOR
GAS AFTER AN AGREED DATE  ...  .  THE LANGUAGE WAS EVIDENTLY BROAD; NOT
NARROWLY TECHNICAL IN CHARACTER."  THE EXAMINER CONCLUDED THAT
"ELEMENTAL PRINCIPLES OF CONTRACT LAW  ...  TOO COMMONLY KNOWN TO THE
LEGAL PROFESSION TO REQUIRE CITATIONS IN SUPPORT THEREOF" COMPELLED THE
DECISION HE REACHED.  THE COMMISSION, IN TURN, RELYING FOR AUTHORITY
ENTIRELY UPON COURT DECISIONS AND TEXTS, CONSTRUED THE "FAVORED NATION"
CLAUSE TO BE APPLICABLE ONLY WHEN TEXAS GAS ENTERED INTO A "NEW"
CONTRACT AFTER DECEMBER 31, 1951, AND HELD THAT THE FEBRUARY 17, 1954,
"AGREEMENT WITH ATLANTIC DOES NOT CONSTITUTE A NEW CONTRACT AS REQUIRED
BY SHELL'S ESCALATION CLAUSE, BUT MERELY REPRESENTS ACTION TAKEN UNDER
A PRE-EXISTING CONTRACT BETWEEN TEXAS GAS AND ATLANTIC."  18 F.P.C., AT
618-619.  IT IS APPARENT THAT THE COMMISSION RESTED ITS DETERMINATION
UPON A CONSTRUCTION OF THE WORDS OF THE CONTRACT AS IT SUPPOSED A COURT
WOULD INTERPRET THEM.  (FN7) 

"THE GROUNDS UPON WHICH AN ADMINISTRATIVE ORDER MUST BE JUDGED ARE
THOSE UPON WHICH THE RECORD DISCLOSES THAT ITS ACTION WAS BASED." 
SECURITIES & EXCHANGE COMM'N V. CHENERY CORP., 318 U.S. 80, 87. 
THEREFORE, SINCE THE COMMISSION PROFESSED TO DISPOSE OF THE CASE SOLELY
UPON ITS VIEW OF THE RESULT CALLED FOR BY THE APPLICATION OF CANONS OF
CONTRACT CONSTRUCTION EMPLOYED BY THE COURTS, AND DID NOT IN ANY WISE
RELY ON MATTERS WITHIN ITS SPECIAL COMPETENCE, THE COURT OF APPEALS WAS
FULLY JUSTIFIED IN MAKING ITS OWN INDEPENDENT DETERMINATION OF THE
CORRECT APPLICATION OF THE GOVERNING PRINCIPLES.  SEE FEDERAL
COMMUNICATIONS COMM'N V. RCA COMMUNICATIONS, INC., 346 U.S. 86, 91. 
THERE APPLIES HERE WHAT THE COURT SAID IN CHENERY:  "SINCE THE DECISION
OF THE COMMISSION WAS EXPLICITLY BASED UPON THE APPLICABILITY OF
PRINCIPLES (OF CONTRACT INTERPRETATION) ANNOUNCED BY COURTS, ITS
VALIDITY MUST LIKEWISE BE JUDGED ON THAT BASIS."  318 U.S., AT 87. 

IN THE CIRCUMSTANCES, CONSIDERATIONS OF THE SCOPE OF REVIEW OF
ADMINISTRATIVE DETERMINATIONS NEED NOT DETER US FROM REVIEWING THE
DECISION OF THE COURT OF APPEALS AND DECIDING THE PROPER CONSTRUCTION
OF THE "FAVORED NATION" CLAUSE.  WE PROCEED TO DO SO SINCE THE QUESTION
OF INTERPRETATION OF THE CLAUSE WAS PRESENTED IN BOTH PETITIONS, OUR
GRANT OF CERTIORARI WAS NOT LIMITED TO EXCLUDE IT, AND THE QUESTION HAS
BEEN BRIEFED AND ARGUED. 

THE QUESTION TO BE DECIDED IS:  DID THE PARTIES TO THE SHELL CONTRACT
MEAN THAT AN AGREEMENT OF THE NATURE OF THE ATLANTIC LETTER AGREEMENT
OF FEBRUARY 17, 1954, SHOULD CONSTITUTE THE "ENTERING INTO A CONTRACT
BY TEXAS GAS PROVIDING FOR THE PURCHASE BY IT OF GAS  ...  "?  WE FIRST
CONSIDER THE NATURE OF THE LETTER AGREEMENT.  THE PRICING PROVISIONS OF
THE ATLANTIC CONTRACT SPECIFY A PRICE FOR THE FIRST FIVE-YEAR PERIOD,
AND PROVIDE THAT PRICES FOR THE FOUR SUCCEEDING FIVE-YEAR PERIODS
SHOULD BE DETERMINED BY AGREEMENT OF THE PARTIES, OR FAILING SUCH
AGREEMENT, BY ARBITRATION.  (FN8)  IN EITHER CASE THE DETERMINATION IS
TO BE MADE "AFTER A SURVEY OF PREVAILING PRICES FOR GAS BEING SOLD IN
SIMILAR QUANTITIES IN THE SOUTHWESTERN PART OF LOUISIANA."  PURSUANT TO
THIS PROVISION A LETTER AGREEMENT DATED OCTOBER 29, 1948, AND A
MODIFICATION AGREEMENT DATED FEBRUARY 16, 1949, ESTABLISHED PRICES FOR
THE FIVE-YEAR PERIOD FROM SEPTEMBER 1, 1948, TO AUGUST 31, 1953.  THE
LETTER AGREEMENT OF FEBRUARY 17, 1954, SETTING THE PRICE FOR THE 1953
1958 PERIOD WAS THUS THE SECOND SUCH AGREEMENT. 

SHELL URGES THAT THE LETTER AGREEMENT IS IN ACTUALITY AN ENTIRELY NEW
CONTRACT WHICH INCORPORATES BY INFERENTIAL REFERENCE THE TERMS OF THE
1943 CONTRACT.  THERE IS NOTHING IN THE LETTER AGREEMENT OR OTHERWISE
IN THE RECORD TO SUBSTANTIATE THIS CONTENTION.  ON THE CONTRARY, THE
LETTER AGREEMENT AFFIRMATIVELY STATES THAT THE ACTION WAS TAKEN "IN
ACCORDANCE WITH" THE 1943 CONTRACT.  (FN9) 

TO BE SURE, THE LETTER AGREEMENT MAY BE SAID TO HAVE BEEN A
"CONTRACT" INSOFAR AS ATLANTIC AND TEXAS GAS AGREED THEREIN UPON A
PRICE AND GAVE UP THE RIGHT TO HAVE ARBITRATORS DETERMINE THE PRICE FOR
THEM.  BUT THEIR ACT WAS MERELY IN THE PERFORMANCE OF AN UNDERTAKING
THEY ASSUMED IN 1943 WHEN THEY CHOSE THIS BINDING METHOD FOR PERIODIC
PRICE ADJUSTMENTS INSTEAD OF SOME METHOD WHICH WOULD HAVE FOREORDAINED
THE ADJUSTMENTS IN PRECISE AMOUNTS.  THE LETTER AGREEMENT IN DISCHARGE
OF THIS OBLIGATION ASSUMED IN 1943 IS THUS SIMPLY "EXECUTORY OF THE
1943 CONTRACT BETWEEN THE PARTIES."  PHILLIPS PETROLEUM CO. V. FEDERAL
POWER COMM'N, 227 F.2D 470, 475.  WE THEREFORE AGREE WITH THE
COMMISSION'S HOLDING THAT THE LETTER AGREEMENT "MERELY REPRESENTS
ACTION TAKEN UNDER A PRE-EXISTING CONTRACT BETWEEN TEXAS GAS AND
ATLANTIC."  18 F.P.C., AT 619. 

IN THE LIGHT OF THIS, WE DO NOT THINK THAT IN BEING PARTY TO THE
LETTER AGREEMENT TEXAS GAS "ENTERED INTO A CONTRACT FOR THE PURCHASE
...  OF GAS" WITHIN THE MEANING OF THOSE WORDS AS EMPLOYED BY THE
PARTIES IN THE "FAVORED NATION" CLAUSE.  THE LANGUAGE OF THAT CLAUSE OF
THE SHELL CONTRACT IS VIRTUALLY THE SAME AS THE PARTIES USED SEVERAL
TIMES AT THE VERY OUTSET OF THAT CONTRACT.  THE SENSE IN WHICH THE
PARTIES USED THE LANGUAGE THERE REVEALS ITS MEANING IN THE "FAVORED
NATION" CLAUSE AND, SO INTERPRETED, THE ATLANTIC LETTER AGREEMENT IS
NOT A "CONTRACT" WITHIN THE MEANING OF THE CLAUSE.  THE CONTRACT
BEGINS: 

"THIS CONTRACT, MADE AND ENTERED INTO AS OF MAY 1, 1951  ...  . 

"WHEREAS, UNDER DATE OF OCTOBER 1, 1943, SHELL OIL COMPANY, INC.,
ENTERED INTO A CONTRACT FOR THE SALE OF GAS  ...  . 

"WHEREAS,  ...  BUYER AND SELLER NOW DESIRE TO RESCIND SAID CONTRACT
AND ENTER INTO A NEW CONTRACT FOR THE PURCHASE OF GAS  ...  ." 

WHAT FOLLOWS ARE THE NINE ARTICLES WHICH DETAIL THE MANY ASPECTS OF
THE PARTIES' RELATIONSHIP FOR THE 20-YEAR TERM OF THE CONTRACT.  THE
ARTICLES ARE CAPTIONED "SALE OF GAS," "QUANTITY OF GAS," "PRESSURE
DECLINE," "POINT OF DELIVERY," "WARRANTY OF TITLE TO GAS," "PRICES,"
"ARBITRATION," "TERM OF CONTRACT," AND "MISCELLANEOUS."  IN ADDITION AN
EXHIBIT MADE PART OF THE CONTRACT DEALS WITH SUCH MATTERS AS "QUALITY
OF GAS," "MEASUREMENTS," "BILLING AND PAYMENT," "REGULATORY BODIES" AND
"FORCE MAJEURE."  IN OTHER WORDS "ENTERING INTO A CONTRACT PROVIDING
FOR THE PURCHASE OF GAS" MEANT TO THE PARTIES THE MAKING OF A FULL
FLEDGED CONTRACT CONTAINING ALL THE TERMS DEFINING THE COMPLETE
RELATIONSHIP. 

THIS CONCLUSION IS BORNE OUT IN THE "PRICES" ARTICLE ITSELF.  THAT
ARTICLE DIVIDES THE CONTRACT TERM INTO FIVE PERIODS, ONE FROM MAY 1,
1951, UNTIL JANUARY 1, 1952, AND FOUR OTHERS EACH OF FIVE YEARS. 
PARAGRAPH 1 SPECIFIES THE PRICE FOR EACH PERIOD ACCORDING TO A SCHEDULE
OF AUTOMATIC STEP-INCREASES.  ADJUSTMENT OTHERWISE TO HIGHER PRICES MAY
RESULT IN ONE OF TWO WAYS:  (1) UNDER PARAGRAPH 3, THE "FAVORED NATION"
CLAUSE, OR (2) UNDER PARAGRAPH 4 - APPLICABLE ONLY TO THE LAST TWO FIVE
YEAR PERIODS - IF SHELL REQUESTS A "PRICE REDETERMINATION."  UPON SUCH
REQUEST "DETERMINATION IS TO BE MADE BY THE PARTIES OR, IF THEY ARE
UNABLE TO AGREE, BY THE ARBITRATORS" UPON THE BASIS OF "THE THREE (3)
HIGHEST PRICES TO BE PAID DURING SUCH PERIOD BY OPERATING INTERSTATE
TRANSPORTERS OF NATURAL GAS, INCLUDING TEXAS GAS" FOR GAS PURCHASED
FROM NAMED LOUISIANA FIELDS.    IN ALL PROBABILITY ANY "PRICE
REDETERMINATION" AGREED UPON BY SHELL AND TEXAS GAS UNDER PARAGRAPH 4
WOULD BE EVIDENCED BY A WRITING STATING THE DETERMINATION.  SURELY THE
PARTIES WHO USED THE LANGUAGE "ENTERING INTO A CONTRACT" AS THEY DID IN
THE PREAMBLE TO THEIR AGREEMENT WOULD NOT CONCEIVE OF SUCH A "PRICE
REDETERMINATION" AS "ENTERING INTO A CONTRACT PROVIDING FOR THE
PURCHASE ...  OF GAS."  NO MORE DOES THE SIMILAR PERIODIC PRICE
ADJUSTMENT UNDER THE ATLANTIC CONTRACT PARTAKE OF THE NATURE OF
"ENTERING INTO A CONTRACT PROVIDING FOR THE PURCHASE  ...  OF GAS,"
WITHIN THE MEANING OF THE LANGUAGE OF THE SHELL "FAVORED NATION"
CLAUSE. 

THE COURT OF APPEALS, IN HOLDING THAT THE LETTER AGREEMENT CAME
WITHIN THE INTENDMENT OF "ENTERING INTO A CONTRACT PROVIDING FOR THE
PURCHASE  ...  OF GAS," STRESSED THAT SHELL'S OBJECTIVE WAS TO ASSURE
ITSELF A "TOP PRICE FOR ITS GAS" AND SAID THAT THE FACTS TENDED TO SHOW
"THAT THE INTENTION OF THE PARTIES WAS FOR ANY HIGHER PRICE PAID BY
TEXAS GAS TO ANOTHER PRODUCER TO TRIGGER A RISE ON THE SHELL CONTRACT
TO THE SAME FIGURE  ...  ."  263 F.2D, AT 225.  WE THINK THE CONTRACT
DEMONSTRATES THE CONTRARY, AND WE FIND THE RECORD BARREN OF ANY OTHER
EVIDENCE WHICH WOULD SUPPORT THIS CONCLUSION.  OF COURSE, WE RECOGNIZE
THAT SHELL DESIRED TO PROTECT ITSELF DURING SO EXTENDED A CONTRACT
PERIOD BY PROVISIONS FOR PRICE INCREASES; AND IT DID SO.  INDEED IN
THIS RESPECT THE CONTRACT IS A ONE-WAY STREET.  SHELL IS GUARANTEED
AUTOMATIC PERIODIC STEP-INCREASES AND IN ADDITION, DURING THE LAST 10
YEARS OF THE CONTRACT TERM, AT SHELL'S OPTION, PRICES ARE TO BE
REDETERMINED TO REFLECT ANY HIGHER PREVAILING MARKET PRICES.  THEN
THERE IS THE "FAVORED NATION" CLAUSE - ALSO PART OF THE PROTECTION
AFFORDED SHELL.  SHELL IS ENTITLED TO THE HIGHEST PRICE WHICH ANY OF
THESE METHODS WILL YIELD.  IN CONTRAST, THERE IS NO PROVISION ALLOWING
TEXAS GAS THE POSSIBILITY OF A PRICE DECREASE. 

EVEN ASSUMING THAT THE PARTIES ASSIGNED PARAMOUNT IMPORTANCE TO
GIVING SHELL THE "TOP PRICE," THE "FAVORED NATION" CLAUSE AS WRITTEN IS
NOT AS BROAD AS IT MIGHT HAVE BEEN.  SHELL HAS MADE OTHER CONTRACTS
WITH "FAVORED NATION" CLAUSES WHICH ARE TRIGGERED BY EVERY HIGHER PRICE
PAID BY THE BUYER TO OTHER PRODUCERS.  (FN10)  IN CONTRAST, SHELL
CONCEDES THAT THIS "FAVORED NATION" CLAUSE WOULD NOT BE TRIGGERED BY
HIGHER PRICES PAID BY TEXAS GAS TO OTHER PRODUCERS UNDER PRE-EXISTING
CONTRACTS BY WAY OF AUTOMATIC INCREASES OR INCREASES WHICH ARE
MATHEMATICALLY DETERMINED.  THE MOST REASONABLE EXPLANATION FOR THE
INCLUSION OF THE CONCEDEDLY MORE LIMITED CLAUSE IS THAT THE PARTIES
MEANT TO DISTINGUISH BETWEEN INCREASES WHICH TEXAS GAS WAS
CONTRACTUALLY BOUND TO PAY UNDER PROVISIONS OF PRE-1951 CONTRACTS AND
HIGHER PRICES WHICH TEXAS GAS VOLUNTARILY ASSUMED TO PAY AFTER 1951. 
IN DECIDING WHICH INCREASES DO AND WHICH DO NOT TRIGGER THIS "FAVORED
NATION" CLAUSE WE WOULD BE MAKING AN IRRATIONAL DISTINCTION WERE WE TO
FOCUS UPON THE MECHANICS CHOSEN IN THE ATLANTIC CONTRACT AND CONCLUDE
THAT THE SHELL CLAUSE WAS ACTIVATED BY A POST-1951 PRICE DETERMINATION
UNDER THE ATLANTIC CONTRACT, ALTHOUGH IT WOULD NOT HAVE BEEN ACTIVATED
BY PRICE INCREASES PURSUANT TO A MORE MATHEMATICALLY PRECISE FORMULA. 
IN ITS ESSENTIAL RESPECTS THE ATLANTIC PRICE ADJUSTMENT WAS NO
DIFFERENT FROM THE LATTER, FOR THE ATLANTIC ADJUSTMENT WAS REQUIRED
UNDER A PRE-EXISTING CONTRACT, AND TEXAS GAS WAS POWERLESS TO PREVENT
IT. 

WE THEREFORE HOLD THAT THE COURT OF APPEALS ERRED IN ITS
INTERPRETATION OF THE "FAVORED NATION" CLAUSE AND THAT THE COMMISSION
CORRECTLY CONSTRUED IT AS NOT EFFECTING AN INCREASE IN PRICE BY REASON
OF THE LETTER AGREEMENT. 

THERE REMAINS FOR MENTION AN ARGUMENT OF SHELL WHICH THE COURT OF
APPEALS FOUND UNNECESSARY TO CONSIDER BECAUSE OF THE RATIONALE WHICH IT
ADOPTED.  THIS IS THE CONTENTION THAT THE 1943 ATLANTIC AGREEMENT DID
NOT PROVIDE FOR A FIXED AND DETERMINED PRICE BEYOND THE FIRST FIVE-YEAR
PERIOD, SO THAT UNDER APPLICABLE STATE LAW ENFORCEABILITY WAS SUSPENDED
UNTIL THE CONTRACT PRICE FOR A PARTICULAR SUCCEEDING FIVE-YEAR TERM WAS
SUPPLIED BY AGREEMENT OR ARBITRATION.  FROM THIS PREMISE IT IS ARGUED
THAT WHEN THE SECOND FIVE-YEAR PERIOD CAME TO AN END ON AUGUST 31,
1953, NEITHER ATLANTIC NOR TEXAS GAS WAS UNDER ANY ENFORCEABLE
OBLIGATION TO CONTINUE THE PRIOR RELATIONSHIP AND THEREFORE WHEN ON
FEBRUARY 17, 1954, TEXAS GAS SIGNED THE LETTER AGREEMENT IT WAS NOT
ACTING PURSUANT TO ANY PRE-EXISTING OBLIGATION BUT WAS EXERCISING ITS
FREE CHOICE TO ENTER WHAT WAS IN EFFECT A NEW CONTRACT.  IN ITS
PETITION FOR WRIT OF CERTIORARI THE COMMISSION ARGUED THAT NOT ONLY WAS
THERE NO DOUBT ABOUT THE ENFORCEABILITY OF THE ATLANTIC CONTRACT BUT
THAT THE ISSUE IS IMMATERIAL BECAUSE THE PARTIES TO THAT CONTRACT
TREATED THE CONTRACT AS BINDING AND THAT IT IS NOT FOR SHELL, A
STRANGER TO THE CONTRACT, TO SAY THAT IT WAS NOT LEGALLY ENFORCEABLE. 
HOWEVER, THE COMMISSION SUGGESTED THAT SHOULD WE REVERSE THE DECISION
OF THE COURT OF APPEALS, PREMISED AS IT IS UPON THE ASSUMPTION THAT THE
1943 ATLANTIC CONTRACT IMPOSED A BINDING OBLIGATION FOR ITS ENTIRE
STATED TERM, AND IF WE CONSIDERED THE QUESTION OF ENFORCEABILITY TO BE
MATERIAL, WE SHOULD REMAND THE ISSUE OF ENFORCEABILITY TO THE COURT OF
APPEALS FOR ITS DECISION.  SHELL HAS MAINTAINED IN THIS COURT THAT THE
ISSUE OF ENFORCEABILITY IS MATERIAL BUT, IN VIEW OF THE COMMISSION'S
STATEMENT, HAS ARGUED NEITHER THAT ISSUE NOR THE ISSUE OF
ENFORCEABILITY.  WE AGREE THAT IT IS APPROPRIATE THAT THE COURT OF
APPEALS ADDRESS ITSELF TO THE ENFORCEABILITY ISSUE, IF IT IS MATERIAL,
BUT UNDER THE CIRCUMSTANCES WE THINK THE COURT OF APPEALS SHOULD FIRST
DECIDE THE QUESTION OF MATERIALITY.  (FN11)  WE THEREFORE REVERSE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE PHILLIPS CASE HELD THAT THE COMMISSION HAD JURISDICTION OVER
THE INDEPENDENT PRODUCERS AND THE ORDER IN QUESTION WAS ORDER NO. 174-B
NOW INCORPORATED IN REGULATIONS UNDER THE NATURAL GAS ACT, 18 CFR SECS.
154.92-154.93. 

FN2  THE CONTRACT WAS ACTUALLY BETWEEN SHELL AND LOUISIANA NATURAL
GAS CORPORATION, A WHOLLY OWNED SUBSIDIARY OF THE PETITIONER, TEXAS GAS
TRANSMISSION CORPORATION.  THE SUBSIDIARY WAS MERGED INTO ITS PARENT IN
1955. 

FN3  THE HEARING WAS ORDERED AFTER SHELL FILED ON FEBRUARY 11, 1957,
AN APPLICATION FOR A RATE INCREASE FROM 12.5 CENTS PER THOUSAND CUBIC
FEET (MCF.)  TO 16.75 CENTS PER MCF.  PLUS TAX REIMBURSEMENT.  THIS
PRICE INCREASE HAS BEEN SUSPENDED AND IS PENDING BEFORE THE COMMISSION
IN ANOTHER PROCEEDING.  THE COMMISSION NOTED IN ITS OPINION HEREIN THAT
IT WAS "NECESSARY IN CONNECTION WITH ANY RATE PROCEEDING AFTER
SUSPENSION OF INCREASED RATES  ...  THAT WE KNOW THE RATE PREVIOUSLY IN
EFFECT  ...  ."  18 F.P.C. 617, 618.  TEXAS GAS AND ITS CUSTOMER, THE
OTHER PETITIONER IN NO. 167, LOUISVILLE GAS AND ELECTRIC COMPANY, WERE
PERMITTED TO INTERVENE IN THESE PROCEEDINGS. 

FN4  ARTICLE VI, PARAGRAPH 1, PROVIDES IN PERTINENT PART: 

"1. THE PRICES TO BE PAID BY BUYER FOR GAS HEREUNDER SHALL BE AS
FOLLOWS: 

     *         *         *         *         * 

"FOR ALL GAS PURCHASED FROM JANUARY 1, 1952, THROUGH DECEMBER 31,
1956, 8.9970 CENTS PER 1000 CU. FT." 

FN5  PARAGRAPH 3 OF ARTICLE VI IS AS FOLLOWS: 

"IF AT ANY TIME AFTER DECEMBER 31, 1951, BUYER SHALL ENTER INTO A
CONTRACT PROVIDING FOR THE PURCHASE BY IT OF GAS PRODUCED FROM A FIELD
OR FIELDS LOCATED, AND DELIVERED TO BUYER, WITHIN A RADIUS OF FIFTY
(50) MILES OF ANY POINT OF DELIVERY PROVIDED HEREUNDER, BUYER SHALL
FORTHWITH NOTIFY SELLER OF SUCH FACT, AND IF THE PRICE PER ONE THOUSAND
(1000) CUBIC FEET AT ANY TIME PAYABLE UNDER SUCH OTHER CONTRACT IS
HIGHER THAN THE PRICE PAYABLE HEREUNDER, EACH PRICE PAYABLE HEREUNDER
WHICH IS LESS THAN THE PRICE PAYABLE AT THE SAME TIME UNDER SUCH OTHER
CONTRACT SHALL BE IMMEDIATELY INCREASED SO THAT IT WILL EQUAL THE PRICE
PAYABLE UNDER SUCH OTHER CONTRACT.  IN DETERMINING WHETHER THE PRICE
PAYABLE UNDER SUCH OTHER CONTRACT IS 'HIGHER' THAN THE PRICE PAYABLE
FOR GAS UNDER THIS CONTRACT, DUE CONSIDERATION SHALL BE GIVEN TO THE
PROVISIONS OF THIS CONTRACT AS COMPARED WITH SUCH OTHER CONTRACT AS TO
QUALITY OF GAS, DELIVERY PRESSURES, GATHERING AND COMPRESSING
ARRANGEMENTS, QUANTITY, PROVISIONS REGARDING MEASUREMENT OF GAS,
INCLUDING DEVIATION FROM BOYLE'S LAW, TAXES PAYABLE ON OR IN RESPECT OF
GAS DELIVERED AND ALL OTHER PERTINENT FACTORS." 

FN6  THE PERTINENT PROVISIONS ARE IN ARTICLE III OF THE 1943 ATLANTIC
CONTRACT READING AS FOLLOWS:

"THE BUYER AGREES TO PAY FOR THE GAS RECEIVED HEREUNDER A PRICE
COMPUTED AS FOLLOWS: 

     *         *         *         *         * 

"(B)  AT THE END OF THE FIRST FIVE-YEAR PERIOD, BUYER AND SELLER ARE
TO REACH AN AGREEMENT AS TO THE PRICE FOR GAS SOLD AND DELIVERED UNDER
THIS CONTRACT DURING THE SECOND FIVE-YEAR PERIOD.  THE PRICE TO BE PAID
DURING SUCH SECOND FIVE-YEAR PERIOD IS TO BE AGREED UPON AT THE
BEGINNING OF SUCH PERIOD AFTER A SURVEY OF PREVAILING PRICES FOR GAS
BEING SOLD IN SIMILAR QUANTITIES IN THE SOUTHWESTERN PART OF
LOUISIANA. 

"(C)  DURING SUCCEEDING FIVE-YEAR PERIODS, PRICES TO BE PAID WILL BE
DETERMINED AT THE BEGINNING OF EACH PERIOD IN THE SAME MANNER AS
PROVIDED FOR IN PARAGRAPH (B) ABOVE. 

"(D)  IN THE EVENT THAT THE PARTIES ARE UNABLE TO AGREE UPON THE
PRICE TO BE PAID FOR GAS AFTER THE FIRST FIVE-YEAR PERIOD, IN
ACCORDANCE WITH THE ARRANGEMENTS SET FORTH IN PARAGRAPHS (B) AND (C)
ABOVE, SUCH DETERMINATION SHALL BE SUBMITTED TO ARBITRATION IN
ACCORDANCE WITH CONDITION XII." 

FN7  THE COMMISSION REACHED ITS CONCLUSION AS TO THE INTERPRETATION
OF THE "FAVORED NATION" CLAUSE WITHOUT DISSENT.  THERE WAS ONE DISSENT,
BY COMMISSIONER CONNOLE, FROM AN ALTERNATIVE GROUND OF DECISION,
NAMELY, THAT THE EFFECTIVE RATE ON JUNE 7, 1954, WAS 8.997 CENTS PER
MCF.  BECAUSE THAT WAS THE CHARGE ACTUALLY BEING COLLECTED FROM TEXAS
GAS.  18 F.P.C. 621.  THE COURT OF APPEALS FOUND NO MERIT IN THIS
GROUND SAYING "WHAT THAT RATE WAS  ...  DEPENDS UPON THE CONTRACT
ESTABLISHED PROVISIONS RATHER THAN ON THE FORTUITY OF RATES WHICH WERE
BEING ACTUALLY PAID ON THAT DATE."  263 F.2D, AT 224.  THE COMMISSION
DID NOT PRESENT THIS QUESTION AMONG THE QUESTIONS PRESENTED IN ITS
PETITION FOR CERTIORARI AND WE INTIMATE NO VIEW UPON ITS MERITS. 

FN8  FOR PURPOSES OF ITS DECISION THE COURT OF APPEALS "ASSUMED
WITHOUT DECIDING THAT THE ATLANTIC CONTRACT OF 1943 DID IN FACT IMPOSE
A BINDING AGREEMENT-TO-AGREE ON THE PRICE FOR GAS IN EACH OF THE
CONTRACT'S LAST FOUR FIVE YEAR PERIODS."  263 F.2D, AT 226.  WE PROCEED
ON THE SAME ASSUMPTION IN REVIEWING THE INTERPRETATION OF THE "FAVORED
NATION" CLAUSE IN THE SHELL CONTRACT. 

FN9  THE PERTINENT TEXT OF THE LETTER IS AS FOLLOWS: 

"UNDER DATE OF SEPTEMBER 1, 1943, DEFENSE PLANT CORPORATION, AS
BUYER, ENTERED INTO A GAS PURCHASE CONTRACT WITH THE ATLANTIC REFINING
COMPANY, AS SELLER, FOR THE PURCHASE OF GAS PRODUCED FROM SELLER'S
LEASES IN THE NORTH TEPETATE POOL OF ACADIA PARISH, LOUISIANA, WHICH
CONTRACT WAS SUBSEQUENTLY AMENDED FEBRUARY 16, 1949.  LOUISIANA NATURAL
GAS CORPORATION PURCHASED THE PIPE LINE OPERATED BY DEFENSE PLANT
CORPORATION AND THE AFORESAID CONTRACT WITH THE ATLANTIC REFINING
COMPANY WAS ASSIGNED TO LOUISIANA NATURAL GAS CORPORATION. 

"IN ACCORDANCE WITH PARAGRAPH III OF SAID 1943 CONTRACT, IT IS HEREBY
AGREED THAT THE PRICE TO BE PAID BY LOUISIANA NATURAL GAS CORPORATION
TO THE ATLANTIC REFINING COMPANY FOR GAS SOLD AND DELIVERED UNDER SUCH
CONTRACT BETWEEN SEPTEMBER 1, 1953, AND AUGUST 31, 1958, BOTH
INCLUSIVE, SHALL BE 12.2 CENTS NET FOR EACH 1,000 CUBIC FEET AT A
PRESSURE BASE OF 15.025 PSIA OF GAS RECEIVED AT THE CENTRAL POINT OR
POINTS SET FORTH IN THE ORIGINAL CONTRACT, REGARDLESS OF WHETHER SUCH
GAS IS DELIVERED TO A GOVERNMENT PLANT OR NOT; AND, IN ADDITION, BUYER
SHALL REIMBURSE SELLER FOR ALL STATE SEVERANCE TAXES, OR SIMILAR TAXES,
WHICH SELLER IS OBLIGATED TO PAY AND HAS PAID TO THE STATE OF LOUISIANA
ON SUCH GAS." 

FN10  FOR EXAMPLE THE COMMISSION'S OPINION ON THE ORDER DENYING
REHEARING, 19 F.P.C., AT 77, STATES: 

"FOR INSTANCE IN SHELL'S GAS RATE SCHEDULE NO. 4 IT IS PROVIDED: 

"'IF AT ANY TIME OR TIMES THE PRICE PER MCF OF GAS OR DRY GAS
PURCHASED BY THE BUYER FROM ANY GAS PRODUCER WHOMEVER  ...  SHALL BE
GREATER THAN THE PRICE PER MCF OF GAS PURCHASED HEREUNDER, THE BUYER
WILL INCREASE THE PRICE PER MCF PAYABLE TO SHELL FOR GAS DELIVERED
HEREUNDER  ...  .' 

"IN SHELL'S GAS RATE SCHEDULE NO. 7, IT IS PROVIDED: 

"'BUYER AGREES THAT IF, DURING THE TERM OF THIS AGREEMENT, IT
PURCHASES OR AGREES TO PURCHASE NATURAL GAS AT ANY PLACE WITHIN A
DISTANCE OF TWENTY-FIVE (25) MILES OF THE DELIVERY POINT UNDER THE
PRESENT CONTRACT, AT A PRICE OR PRICES HIGHER  ...  THAN THE PRICES
PROVIDED FOR BY THE PRESENT CONTRACT,  ...  IT WILL, UPON SELLER'S
REQUEST, THEREAFTER PAY TO SELLER A PRICE OR PRICES UNDER THE PRESENT
AGREEMENT NOT LESS THAN THE HIGHER PRICE SO BEING PAID.' 

"THERE ARE NUMEROUS OTHER EXAMPLES INCLUDED IN THE PRESENT RECORD." 

FN11  WE DO NOT READ THE FOLLOWING STATEMENT OF THE COURT OF APPEALS
AS FORECLOSING THE COMMISSION'S ARGUMENT THAT THE ISSUE OF
ENFORCEABILITY IS NOT MATERIAL: 

"WE HAVE ASSUMED WITHOUT DECIDING THAT THE ATLANTIC CONTRACT OF 1943
DID IN FACT IMPOSE A BINDING AGREEMENT-TO-AGREE ON THE PRICE FOR GAS IN
EACH OF THE CONTRACT'S LAST FOUR FIVE YEAR PERIODS.  THUS IT HAS NOT
BEEN NECESSARY TO DETERMINE THE SEVERAL QUESTIONS RAISED IN CONNECTION
WITH THE ARGUMENTS DIRECTED TO THAT PHASE OF THE CASE.  OF COURSE IF
THE ATLANTIC CONTRACT OF 1943 WAS NOT A BINDING AGREEMENT-TO-AGREE,
THAT CIRCUMSTANCE ALONE WOULD PLACE THE FEBRUARY, 1954 ATLANTIC
CONTRACT FULLY WITHIN THE TERMS OF THE ESCALATION CLAUSE IN THE SHELL
CONTRACT."  263 F.2D, AT 226.    MR. JUSTICE BLACK CONCURS IN THE
RESULT. 
..END :




















COMMISSIONER OF INTERNAL REVENUE V. DUBERSTEIN 363 U.S. 278 


NO. 376.  ARGUED MARCH 23, 1960.  - DECIDED JUNE 13, 1960.* - 265 F.2D
28, REVERSED.  - 268 F.2D 727, JUDGMENT VACATED AND CAUSE REMANDED. 

*TOGETHER WITH NO. 546, STANTON ET UX. V. UNITED STATES, ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT, ARGUED MARCH 24, 1960. 


1.  THIS COURT REJECTS THE GOVERNMENT'S SUGGESTION THAT IT PROMULGATE
A NEW "TEST" TO SERVE AS A STANDARD TO BE APPLIED BY THE LOWER COURTS
AND BY THE TAX COURT IN DEALING WITH NUMEROUS CASES INVOLVING THE
QUESTION WHAT IS A "GIFT" EXCLUDABLE FROM INCOME UNDER THE INTERNAL
REVENUE CODE, SINCE THE GOVERNING PRINCIPLES ARE NECESSARILY GENERAL
AND HAVE ALREADY BEEN SPELLED OUT IN THE OPINIONS OF THIS COURT.  PP.
284-286. 

2.  THE CONCLUSION WHETHER A TRANSFER AMOUNTS TO A "GIFT" IS ONE THAT
MUST BE REACHED ON CONSIDERATION OF ALL THE FACTORS.  WHILE THE
PRINCIPLES URGED BY THE GOVERNMENT MAY, IN NONABSOLUTE FORM AS
CRYSTALLIZATIONS OF EXPERIENCE, PROVE PERSUASIVE TO THE TRIER OF FACTS
IN A PARTICULAR CASE, THEY CANNOT BE LAID DOWN AS A MATTER OF LAW.  PP.
287-289. 

3.  DETERMINATION IN EACH INDIVIDUAL CASE AS TO WHETHER THE
TRANSACTION IN QUESTION WAS A "GIFT" MUST BE BASED ULTIMATELY ON THE
APPLICATION OF THE FACT-FINDING TRIBUNAL'S EXPERIENCE WITH THE
MAINSPRINGS OF HUMAN CONDUCT TO THE TOTALITY OF THE FACTS IN THE CASE;
AND APPELLATE REVIEW OF THE CONCLUSION REACHED BY THE FACT-FINDING
TRIBUNAL MUST BE QUITE RESTRICTED.  PP.  289-291. 

4.  IN NO. 376, DUBERSTEIN, AN INDIVIDUAL TAXPAYER, GAVE TO A
BUSINESS CORPORATION, UPON REQUEST, THE NAMES OF POTENTIAL CUSTOMERS. 
THE INFORMATION PROVED VALUABLE, AND THE CORPORATION RECIPROCATED BY
GIVING DUBERSTEIN A CADILLAC AUTOMOBILE, CHARGING THE COST THEREOF AS A
BUSINESS EXPENSE ON ITS OWN CORPORATE INCOME TAX RETURN.  THE TAX COURT
CONCLUDED THAT THE CAR WAS NOT A "GIFT" EXCLUDABLE FROM INCOME UNDER
SEC. 22(B)(3) OF THE INTERNAL REVENUE CODE OF 1939.  HELD:  ON THE
RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE TAX COURT'S CONCLUSION
WAS "CLEARLY ERRONEOUS," AND THE COURT OF APPEALS ERRED IN REVERSING
ITS JUDGMENT.  P. 279-281, 291-292. 

5.  IN NO. 546, STANTON, UPON RESIGNING AS COMPTROLLER OF A CHURCH
CORPORATION AND AS PRESIDENT OF ITS WHOLLY OWNED SUBSIDIARY CREATED TO
MANAGE ITS EXTENSIVE REAL ESTATE HOLDINGS, WAS GIVEN "A GRATUITY" OF
$20,000 "IN APPRECIATION OF" HIS PAST SERVICES.  THE COMMISSIONER
ASSESSED AN INCOME-TAX DEFICIENCY AGAINST HIM FOR FAILURE TO INCLUDE
THIS AMOUNT IN HIS GROSS INCOME.  STANTON PAID THE DEFICIENCY AND SUED
IN A FEDERAL DISTRICT COURT FOR A REFUND.  THE TRIAL JUDGE, SITTING
WITHOUT A JURY, MADE THE SIMPLE FINDING THAT THE PAYMENT WAS A "GIFT"
AND ENTERED JUDGMENT FOR STANTON.  THE COURT OF APPEALS REVERSED. 
HELD:  THE FINDING OF THE DISTRICT COURT WAS INADEQUATE; THE JUDGMENT
OF THE COURT OF APPEALS IS VACATED; AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS.  PP. 281-283, 292-293. 

COMMISSIONER OF INTERNAL REVENUE V. DUBERSTEIN ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES CONCERN THE PROVISION OF THE INTERNAL REVENUE CODE
WHICH EXCLUDES FROM THE GROSS INCOME OF AN INCOME TAXPAYER "THE VALUE
OF PROPERTY ACQUIRED BY GIFT."  (FN1)  THEY POSE THE FREQUENTLY
RECURRENT QUESTION WHETHER A SPECIFIC TRANSFER TO A TAXPAYER IN FACT
AMOUNTED TO A "GIFT" TO HIM WITHIN THE MEANING OF THE STATUTE.  THE
IMPORTANCE TO DECISION OF THE FACTS OF THE CASES REQUIRES THAT WE STATE
THEM IN SOME DETAIL. 

NO. 376, COMMISSIONER V. DUBERSTEIN.  THE TAXPAYER, DUBERSTEIN, (FN2)
WAS PRESIDENT OF THE DUBERSTEIN IRON & METAL COMPANY, A CORPORATION
WITH HEADQUARTERS IN DAYTON, OHIO.  FOR SOME YEARS THE TAXPAYER'S
COMPANY HAD DONE BUSINESS WITH MOHAWK METAL CORPORATION, WHOSE
HEADQUARTERS WERE IN NEW YORK CITY.  THE PRESIDENT OF MOHAWK WAS ONE
BERMAN.  THE TAXPAYER AND BERMAN HAD GENERALLY USED THE TELEPHONE TO
TRANSACT THEIR COMPANIES' BUSINESS WITH EACH OTHER, WHICH CONSISTED OF
BUYING AND SELLING METALS.  THE TAXPAYER TESTIFIED, WITHOUT
ELABORATION, THAT HE KNEW BERMAN "PERSONALLY" AND HAD KNOWN HIM FOR
ABOUT SEVEN YEARS.  FROM TIME TO TIME IN THEIR TELEPHONE CONVERSATIONS,
BERMAN WOULD ASK DUBERSTEIN WHETHER THE LATTER KNEW OF POTENTIAL
CUSTOMERS FOR SOME OF MOHAWK'S PRODUCTS IN WHICH DUBERSTEIN'S COMPANY
ITSELF WAS NOT INTERESTED.  DUBERSTEIN PROVIDED THE NAMES OF POTENTIAL
CUSTOMERS FOR THESE ITEMS. 

ONE DAY IN 1951 BERMAN TELEPHONED DUBERSTEIN AND SAID THAT THE
INFORMATION DUBERSTEIN HAD GIVEN HIM HAD PROVED SO HELPFUL THAT HE
WANTED TO GIVE THE LATTER A PRESENT.  DUBERSTEIN STATED THAT BERMAN
OWED HIM NOTHING.  BERMAN SAID THAT HE HAD A CADILLAC AS A GIFT FOR
DUBERSTEIN, AND THAT THE LATTER SHOULD SEND TO NEW YORK FOR IT; BERMAN
INSISTED THAT DUBERSTEIN ACCEPT THE CAR, AND THE LATTER FINALLY DID SO,
PROTESTING HOWEVER THAT HE HAD NOT INTENDED TO BE COMPENSATED FOR THE
INFORMATION.  AT THE TIME DUBERSTEIN ALREADY HAD A CADILLAC AND AN
OLDSMOBILE, AND FELT THAT HE DID NOT NEED ANOTHER CAR.  DUBERSTEIN
TESTIFIED THAT HE DID NOT THINK BERMAN WOULD HAVE SENT HIM THE CADILLAC
IF HE HAD NOT FURNISHED HIM WITH INFORMATION ABOUT THE CUSTOMERS.  IT
APPEARED THAT MOHAWK LATER DEDUCTED THE VALUE OF THE CADILLAC AS A
BUSINESS EXPENSE ON ITS CORPORATE INCOME TAX RETURN. 

DUBERSTEIN DID NOT INCLUDE THE VALUE OF THE CADILLAC IN GROSS INCOME
FOR 1951, DEEMING IT A GIFT.  THE COMMISSIONER ASSERTED A DEFICIENCY
FOR THE CAR'S VALUE AGAINST HIM, AND IN PROCEEDINGS TO REVIEW THE
DEFICIENCY THE TAX COURT AFFIRMED THE COMMISSION'S DETERMINATION.  IT
SAID THAT "THE RECORD IS SIGNIFICANTLY BARREN OF EVIDENCE REVEALING ANY
INTENTION ON THE PART OF THE PAYOR TO MAKE A GIFT ...  .  THE ONLY
JUSTIFIABLE INFERENCE IS THAT THE AUTOMOBILE WAS INTENDED BY THE PAYOR
TO BE REMUNERATION FOR SERVICES RENDERED TO IT BY DUBERSTEIN."  THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED.  265 F.2D 28. 

NO. 546, STANTON V. UNITED STATES.  THE TAXPAYER, STANTON, HAD BEEN
FOR APPROXIMATELY 10 YEARS IN THE EMPLOY OF TRINITY CHURCH IN NEW YORK
CITY.  HE WAS COMPTROLLER OF THE CHURCH CORPORATION, AND PRESIDENT OF A
CORPORATION, TRINITY OPERATING COMPANY, THE CHURCH SET UP AS A FULLY
OWNED SUBSIDIARY TO MANAGE ITS REAL ESTATE HOLDINGS, WHICH WERE MORE
EXTENSIVE THAN SIMPLY THE CHURCH PROPERTY.  HIS SALARY BY THE END OF
HIS EMPLOYMENT THERE IN 1942 AMOUNTED TO $22,500 A YEAR.  EFFECTIVE
NOVEMBER 30, 1942, HE RESIGNED FROM BOTH POSITIONS TO GO INTO BUSINESS
FOR HIMSELF.  THE OPERATING COMPANY'S DIRECTORS, WHO SEEM TO HAVE
INCLUDED THE RECTOR AND VESTRYMEN OF THE CHURCH, PASSED THE FOLLOWING
RESOLUTION UPON HIS RESIGNATION:  "BE IT RESOLVED THAT IN APPRECIATION
OF THE SERVICES RENDERED BY MR. STANTON  ...  A GRATUITY IS HEREBY
AWARDED TO HIM OF TWENTY THOUSAND DOLLARS, PAYABLE TO HIM IN EQUAL
INSTALMENTS OF TWO THOUSAND DOLLARS AT THE END OF EACH AND EVERY MONTH
COMMENCING WITH THE MONTH OF DECEMBER, 1942; PROVIDED THAT, WITH THE
DISCONTINUANCE OF HIS SERVICES, THE CORPORATION OF TRINITY CHURCH IS
RELEASED FROM ALL RIGHTS AND CLAIMS TO PENSION AND RETIREMENT BENEFITS
NOT ALREADY ACCRUED UP TO NOVEMBER 30, 1942." 

THE OPERATING COMPANY'S ACTION WAS LATER EXPLAINED BY ONE OF ITS
DIRECTORS AS BASED ON THE FACT THAT, "MR. STANTON WAS LIKED BY ALL OF
THE VESTRY PERSONALLY.  HE HAD A PLEASING PERSONALITY.  HE HAD COME IN
WHEN TRINITY'S AFFAIRS WERE IN A DIFFICULT SITUATION.  HE DID A
SPLENDID PIECE OF WORK, WE FELT.  BESIDES THAT  ...  HE WAS LIKED BY
ALL OF THE MEMBERS OF THE VESTRY PERSONALLY."  AND BY ANOTHER:  "WE
WERE ALL UNANIMOUS IN WISHING TO MAKE MR. STANTON A GIFT.  MR. STANTON
HAD LOYALLY AND FAITHFULLY SERVED TRINITY IN A VERY DIFFICULT TIME.  WE
THOUGHT OF HIM IN THE HIGHEST REGARD.  WE UNDERSTOOD THAT HE WAS GOING
IN BUSINESS FOR HIMSELF.  WE FELT THAT HE WAS ENTITLED TO THAT EVIDENCE
OF GOOD WILL." 

ON THE OTHER HAND, THERE WAS A SUGGESTION OF SOME ILL-FEELING BETWEEN
STANTON AND THE DIRECTORS, ARISING OUT OF THE RECENT TERMINATION OF THE
SERVICES OF ONE WATKINS, THE OPERATING COMPANY'S TREASURER, WHOSE
DEPARTURE WAS EVIDENTLY ATTENDED BY SOME ACRIMONY.  AT A SPECIAL BOARD
MEETING ON OCTOBER 28, 1942, STANTON HAD INTERVENED ON WATKINS' SIDE
AND ASKED RECONSIDERATION OF THE MATTER.  THE MINUTES REFLECT THAT
"RESENTMENT WAS EXPRESSED AS TO THE 'PRESUMPTUOUS' SUGGESTION THAT THE
ACTION OF THE BOARD, TAKEN AFTER LONG DELIBERATION, SHOULD BE
CHANGED."  THE BOARD ADHERED TO ITS DETERMINATION THAT WATKINS BE
SEPARATED FROM EMPLOYMENT, GIVING HIM AN OPPORTUNITY TO RESIGN RATHER
THAN BE DISCHARGED.  AT ANOTHER SPECIAL MEETING TWO DAYS LATER IT WAS
REVEALED THAT WATKINS HAD NOT RESIGNED; THE PREVIOUS RESOLUTION
TERMINATING HIS SERVICES WAS THEN VIEWED AS EFFECTIVE; AND THE BOARD
VOTED THE PAYMENT OF SIX MONTHS' SALARY TO WATKINS IN A RESOLUTION
SIMILAR TO THAT QUOTED IN REGARD TO STANTON, BUT WHICH DID NOT USE THE
TERM "GRATUITY."  AT THE MEETING, STANTON ANNOUNCED THAT IN ORDER TO
AVOID ANY SUCH EMBARRASSMENT OR QUESTION AT ANY TIME AS TO HIS
WILLINGNESS TO RESIGN IF THE BOARD DESIRED, HE WAS TENDERING HIS
RESIGNATION.  IT WAS TABLED, THOUGH NOT WITHOUT DISSENT.  THE NEXT
WEEK, ON NOVEMBER 5, AT ANOTHER SPECIAL MEETING, STANTON AGAIN TENDERED
HIS RESIGNATION WHICH THIS TIME WAS ACCEPTED. 

THE "GRATUITY" WAS DULY PAID.  SO WAS A SMALLER ONE TO STANTON'S (AND
THE OPERATING COMPANY'S) SECRETARY, UNDER A SIMILAR RESOLUTION, UPON
HER RESIGNATION AT THE SAME TIME.  THE TWO CORPORATIONS SHARED THE
EXPENSE OF THE PAYMENTS.  THERE WAS UNDISPUTED TESTIMONY THAT THERE
WERE IN FACT NO ENFORCEABLE RIGHTS OR CLAIMS TO PENSION AND RETIREMENT
BENEFITS WHICH HAD NOT ACCRUED AT THE TIME OF THE TAXPAYER'S
RESIGNATION, AND THAT THE LAST PROVISO OF THE RESOLUTION WAS INSERTED
SIMPLY OUT OF AN ABUNDANCE OF CAUTION.  THE TAXPAYER RECEIVED IN CASH A
REFUND OF HIS CONTRIBUTIONS TO THE RETIREMENT PLANS, AND THERE IS NO
SUGGESTION THAT HE WAS ENTITLED TO MORE.  HE WAS REQUIRED TO PERFORM NO
FURTHER SERVICES FOR TRINITY AFTER HIS RESIGNATION. 

THE COMMISSIONER ASSERTED A DEFICIENCY AGAINST THE TAXPAYER AFTER THE
LATTER HAD FAILED TO INCLUDE THE PAYMENTS IN QUESTION IN GROSS INCOME. 
AFTER PAYMENT OF THE DEFICIENCY AND ADMINISTRATIVE REJECTION OF A
REFUND CLAIM, THE TAXPAYER SUED THE UNITED STATES FOR A REFUND IN THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK.  THE TRIAL JUDGE,
SITTING WITHOUT A JURY, MADE THE SIMPLE FINDING THAT THE PAYMENTS WERE
A "GIFT," (FN3) AND JUDGMENT WAS ENTERED FOR THE TAXPAYER.  THE COURT
OF APPEALS FOR THE SECOND CIRCUIT REVERSED.  268 F.2D 727. 

THE GOVERNMENT, URGING THAT CLARIFICATION OF THE PROBLEM TYPIFIED BY
THESE TWO CASES WAS NECESSARY, AND THAT THE APPROACHES TAKEN BY THE
COURTS OF APPEALS FOR THE SECOND AND THE SIXTH CIRCUITS WERE IN
CONFLICT, PETITIONED FOR CERTIORARI IN NO. 376, AND ACQUIESCED IN THE
TAXPAYER'S PETITION IN NO. 546.  ON THIS BASIS, AND BECAUSE OF THE
IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE INCOME TAX
LAWS, WE GRANTED CERTIORARI IN BOTH CASES.  361 U.S. 923. 

THE EXCLUSION OF PROPERTY ACQUIRED BY GIFT FROM GROSS INCOME UNDER
THE FEDERAL INCOME TAX LAWS WAS MADE IN THE FIRST INCOME TAX STATUTE
(FN4) PASSED UNDER THE AUTHORITY OF THE SIXTEENTH AMENDMENT, AND HAS
BEEN A FEATURE OF THE INCOME TAX STATUTES EVER SINCE.  THE MEANING OF
THE TERM "GIFT" AS APPLIED TO PARTICULAR TRANSFERS HAS ALWAYS BEEN A
MATTER OF CONTENTION.  (FN5)  SPECIFIC AND ILLUMINATING LEGISLATIVE
HISTORY ON THE POINT DOES NOT APPEAR TO EXIST.  ANALOGIES AND
INFERENCES DRAWN FROM OTHER REVENUE PROVISIONS, SUCH AS THE ESTATE AND
GIFT TAXES, ARE DUBIOUS.  SEE LOCKARD V. COMMISSIONER, 166 F.2D 409. 
THE MEANING OF THE STATUTORY TERM HAS BEEN SHAPED LARGELY BY THE
DECISIONAL LAW.  WITH THIS, WE TURN TO THE CONTENTIONS MADE BY THE
GOVERNMENT IN THESE CASES. 

FIRST.  THE GOVERNMENT SUGGESTS THAT WE PROMULGATE A NEW "TEST" IN
THIS AREA TO SERVE AS A STANDARD TO BE APPLIED BY THE LOWER COURTS AND
BY THE TAX COURT IN DEALING WITH THE NUMEROUS CASES THAT ARISE.  (FN6)
WE REJECT THIS INVITATION.  WE ARE OF OPINION THAT THE GOVERNING
PRINCIPLES ARE NECESSARILY GENERAL AND HAVE ALREADY BEEN SPELLED OUT IN
THE OPINIONS OF THIS COURT, AND THAT THE PROBLEM IS ONE WHICH, UNDER
THE PRESENT STATUTORY FRAMEWORK, DOES NOT LEND ITSELF TO ANY MORE
DEFINITIVE STATEMENT THAT WOULD PRODUCE A TALISMAN FOR THE SOLUTION OF
CONCRETE CASES.  THE CASES AT BAR ARE FAIR EXAMPLES OF THE SETTINGS IN
WHICH THE PROBLEM USUALLY ARISES.  THEY PRESENT SITUATIONS IN WHICH
PAYMENTS HAVE BEEN MADE IN A CONTEXT WITH BUSINESS OVERTONES - AN
EMPLOYER MAKING A PAYMENT TO A RETIRING EMPLOYEE; A BUSINESSMAN GIVING
SOMETHING OF VALUE TO ANOTHER BUSINESSMAN WHO HAS BEEN OF ADVANTAGE TO
HIM IN HIS BUSINESS.  IN THIS CONTEXT, WE REVIEW THE LAW AS ESTABLISHED
BY THE PRIOR CASES HERE. 

THE COURSE OF DECISION HERE MAKES IT PLAIN THAT THE STATUTE DOES NOT
USE THE TERM "GIFT" IN THE COMMON-LAW SENSE, BUT IN A MORE COLLOQUIAL
SENSE.  THIS COURT HAS INDICATED THAT A VOLUNTARY EXECUTED TRANSFER OF
HIS PROPERTY BY ONE TO ANOTHER, WITHOUT ANY CONSIDERATION OR
COMPENSATION THEREFOR, THOUGH A COMMON-LAW GIFT, IS NOT NECESSARILY A
"GIFT" WITHIN THE MEANING OF THE STATUTE.  FOR THE COURT HAS SHOWN THAT
THE MERE ABSENCE OF A LEGAL OR MORAL OBLIGATION TO MAKE SUCH A PAYMENT
DOES NOT ESTABLISH THAT IT IS A GIFT.  OLD COLONY TRUST CO. V.
COMMISSIONER, 279 U.S. 716, 730.  AND, IMPORTANTLY, IF THE PAYMENT
PROCEEDS PRIMARILY FROM "THE CONSTRAINING FORCE OF ANY MORAL OR LEGAL
DUTY," OR FROM "THE INCENTIVE OF ANTICIPATED BENEFIT" OF AN ECONOMIC
NATURE, BOGARDUS V. COMMISSIONER, 302 U.S. 34, 41, IT IS NOT A GIFT. 
AND, CONVERSELY, "WHERE THE PAYMENT IS IN RETURN FOR SERVICES RENDERED,
IT IS IRRELEVANT THAT THE DONOR DERIVES NO ECONOMIC BENEFIT FROM IT." 
ROBERTSON V. UNITED STATES, 343 U.S. 711, 714.  (FN7)  A GIFT IN THE
STATUTORY SENSE, ON THE OTHER HAND, PROCEEDS FROM A "DETACHED AND
DISINTERESTED GENEROSITY," COMMISSIONER V. LOBUE, 351 U.S. 243, 246;
"OUT OF AFFECTION, RESPECT, ADMIRATION, CHARITY OR LIKE IMPULSES." 
ROBERTSON V. UNITED STATES, SUPRA, AT 714.  AND IN THIS REGARD, THE
MOST CRITICAL CONSIDERATION, AS THE COURT WAS AGREED IN THE LEADING
CASE HERE, IS THE TRANSFEROR'S "INTENTION."  BOGARDUS V. COMMISSIONER,
302 U.S. 34, 43.  "WHAT CONTROLS IS THE INTENTION WITH WHICH PAYMENT,
HOWEVER VOLUNTARY, HAS BEEN MADE."  ID., AT 45 (DISSENTING OPINION). 
(FN8) 

THE GOVERNMENT SAYS THAT THIS "INTENTION" OF THE TRANSFEROR CANNOT
MEAN WHAT THE CASES ON THE COMMONLAW CONCEPT OF GIFT CALL "DONATIVE
INTENT."  WITH THAT WE ARE IN AGREEMENT, FOR OUR DECISIONS FULLY
SUPPORT THIS.  MOREOVER, THE BOGARDUS CASE ITSELF MAKES IT PLAIN THAT
THE DONOR'S CHARACTERIZATION OF HIS ACTION IS NOT DETERMINATIVE - THAT
THERE MUST BE AN OBJECTIVE INQUIRY AS TO WHETHER WHAT IS CALLED A GIFT
AMOUNTS TO IT IN REALITY.  302 U.S., AT 40.  IT SCARCELY NEEDS ADDING
THAT THE PARTIES' EXPECTATIONS OR HOPES AS TO THE TAX TREATMENT OF
THEIR CONDUCT IN THEMSELVES HAVE NOTHING TO DO WITH THE MATTER. 

IT IS SUGGESTED THAT THE BOGARDUS CRITERION WOULD BE MORE APT IF
REPHRASED IN TERMS OF "MOTIVE" RATHER THAN "INTENTION."  WE MUST
CONFESS TO SOME SKEPTICISM AS TO WHETHER SUCH A VERBAL MUTATION WOULD
BE OF ANY PRACTICAL CONSEQUENCE.  WE TAKE IT THAT THE PROPER CRITERION,
ESTABLISHED BY DECISION HERE, IS ONE THAT INQUIRES WHAT THE BASIC
REASON FOR HIS CONDUCT WAS IN FACT - THE DOMINANT REASON THAT EXPLAINS
HIS ACTION IN MAKING THE TRANSFER.  FURTHER THAN THAT WE DO NOT THINK
IT PROFITABLE TO GO. 

SECOND.  THE GOVERNMENT'S PROPOSED "TEST," WHILE APPARENTLY SIMPLE
AND PRECISE IN ITS FORMULATION, DEPENDS FRANKLY ON A SET OF
"PRINCIPLES" OR "PRESUMPTIONS" DERIVED FROM THE DECIDED CASES, AND
CONCEDEDLY SUBJECT TO VARIOUS EXCEPTIONS; AND IT INVOLVES VARIOUS
COROLLARIES, WHICH ADD TO ITS DETAIL.  WERE WE TO PROMULGATE THIS TEST
AS A MATTER OF LAW, AND ACCEPT WITH IT ITS VARIOUS PRESUPPOSITIONS AND
STATED CONSEQUENCES, WE WOULD BE PASSING FAR BEYOND THE REQUIREMENTS OF
THE CASES BEFORE US, AND WOULD BE PAINTING ON A LARGE CANVAS WITH
INDEED A BROAD BRUSH.  THE GOVERNMENT DERIVES ITS TEST FROM SUCH
PROPOSTIIONS AS THE FOLLOWING:  THAT PAYMENTS BY AN EMPLOYER TO AN
EMPLOYEE, EVEN THOUGH VOLUNTARY, OUGHT, BY AND LARGE, TO BE TAXABLE;
THAT THE CONCEPT OF A GIFT IS INCONSISTENT WITH A PAYMENT'S BEING A
DEDUCTIBLE BUSINESS EXPENSE; THAT A GIFT INVOLVES "PERSONAL" ELEMENTS;
THAT A BUSINESS CORPORATION CANNOT PROPERLY MAKE A GIFT OF ITS ASSETS. 
THE GOVERNMENT ADMITS THAT THERE ARE EXCEPTIONS AND QUALIFICATIONS TO
THESE PROPOSITIONS.  WE THINK, TO THE EXTENT THEY ARE CORRECT, THAT
THESE PROPOSITIONS ARE NOT PRINCIPLES OF LAW BUT RATHER MAXIMS OF
EXPERIENCE THAT THE TRIBUNALS WHICH HAVE TRIED THE FACTS OF CASES IN
THIS AREA HAVE ENUNCIATED IN EXPLAINING THEIR FACTUAL DETERMINATIONS. 
SOME OF THEM SIMPLY REPRESENT TRUISMS:  IT DOUBTLESS IS, STATISTICALLY
SPEAKING, THE EXCEPTIONAL PAYMENT BY AN EMPLOYER TO AN EMPLOYEE THAT
AMOUNTS TO A GIFT.  OTHERS ARE OVERSTATEMENTS OF POSSIBLE EVIDENTIARY
INFERENCES RELEVANT TO A FACTUAL DETERMINATION ON THE TOTALITY OF
CIRCUMSTANCES IN THE CASE:  IT IS DOUBTLESS RELEVANT TO THE OVER-ALL
INFERENCE THAT THE TRANSFEROR TREATS A PAYMENT AS A BUSINESS DEDUCTION,
OR THAT THE TRANSFEROR IS A CORPORATE ENTITY.  BUT THESE INFERENCES
CANNOT BE STATED IN ABSOLUTE TERMS.  NEITHER FACTOR IS A SHIBBOLETH. 
THE TAXING STATUTE DOES NOT MAKE NONDEDUCTIBILITY BY THE TRANSFEROR A
CONDITION ON THE "GIFT" EXCLUSION; NOR DOES IT DRAW ANY DISTINCTION, IN
TERMS, BETWEEN TRANSFERS BY CORPORATIONS AND INDIVIDUALS, AS TO THE
AVAILABILITY OF THE "GIFT" EXCLUSION TO THE TRANSFEREE.  THE CONCLUSION
WHETHER A TRANSFER AMOUNTS TO A "GIFT" IS ONE THAT MUST BE REACHED ON
CONSIDERATION OF ALL THE FACTORS. 

SPECIFICALLY, THE TRIER OF FACT MUST BE CAREFUL NOT TO ALLOW TRIAL OF
THE ISSUE WHETHER THE RECEIPT OF A SPECIFIC PAYMENT IS A GIFT TO TURN
INTO A TRIAL OF THE TAX LIABILITY, OR OF THE PROPRIETY, AS A MATTER OF
FIDUCIARY OR CORPORATE LAW, ATTACHING TO THE CONDUCT OF SOMEONE ELSE. 
THE MAJOR COROLLARY TO THE GOVERNMENT'S SUGGESTED "TEST" IS THAT, AS AN
ORDINARY MATTER, A PAYMENT BY A CORPORATION CANNOT BE A GIFT, AND, MORE
SPECIFICALLY, THERE CAN BE NO SUCH THING AS A "GIFT" MADE BY A
CORPORATION WHICH WOULD ALLOW IT TO TAKE A DEDUCTION FOR AN ORDINARY
AND NECESSARY BUSINESS EXPENSE.  AS WE HAVE SAID, WE FIND NO BASIS FOR
SUCH A CONCLUSION IN THE STATUTE; AND IF IT WERE APPLIED AS A
DETERMINATIVE RULE OF "LAW," IT WOULD FORCE THE TRIBUNALS TRYING TAX
CASES INVOLVING THE DONEE'S LIABILITY INTO ELABORATE INQUIRIES INTO THE
LOCAL LAW OF CORPORATIONS OR INTO THE PERIPHERAL DEDUCTIBILITY OF
PAYMENTS AS BUSINESS EXPENSES.  THE FORMER ISSUE MIGHT MAKE THE TAX
TRIBUNALS THE MOST FREQUENT INVESTIGATORS OF AN IMPORTANT AND DIFFICULT
ISSUE OF THE LAWS OF THE SEVERAL STATES, AND THE LATTER INQUIRY WOULD
SUMMON ONE DIFFICULT AND DELICATE PROBLEM OF FEDERAL TAX LAW AS AN AID
TO THE SOLUTION OF ANOTHER.  (FN9)  OR PERHAPS THERE WOULD BE REQUIRED
A TRIAL OF THE VEXED ISSUE WHETHER THERE WAS A "CONSTRUCTIVE"
DISTRIBUTION OF CORPORATE PROPERTY, FOR INCOME TAX PURPOSES, TO THE
CORPORATE AGENTS WHO HAD SPONSORED THE TRANSFER.  (FN10)  THESE
CONSIDERATIONS, ALSO, REINFORCE US IN OUR CONCLUSION THAT WHILE THE
PRINCIPLES URGED BY THE GOVERNMENT MAY, IN NONABSOLUTE FORM AS
CRYSTALLIZATIONS OF EXPERIENCE, PROVE PERSUASIVE TO THE TRIER OF FACTS
IN A PARTICULAR CASE, NEITHER THEY, NOR ANY MORE DETAILED STATEMENT
THAN HAS BEEN MADE, CAN BE LAID DOWN AS A MATTER OF LAW. 

THIRD.  DECISION OF THE ISSUE PRESENTED IN THESE CASES MUST BE BASED
ULTIMATELY ON THE APPLICATION OF THE FACTFINDING TRIBUNAL'S EXPERIENCE
WITH THE MAINSPRINGS OF HUMAN CONDUCT TO THE TOTALITY OF THE FACTS OF
EACH CASE.  THE NONTECHNICAL NATURE OF THE STATUTORY STANDARD, THE
CLOSE RELATIONSHIP OF IT TO THE DATA OF PRACTICAL HUMAN EXPERIENCE, AND
THE MULTIPLICITY OF RELEVANT FACTUAL ELEMENTS, WITH THEIR VARIOUS
COMBINATIONS, CREATING THE NECESSITY OF ASCRIBING THE PROPER FORCE TO
EACH, CONFIRM US IN OUR CONCLUSION THAT PRIMARY WEIGHT IN THIS AREA
MUST BE GIVEN TO THE CONCLUSIONS OF THE TRIER OF FACT.  BAKER V. TEXAS
& PACIFIC R. CO., 359 U.S. 227; COMMISSIONER V. HEININGER, 320 U.S.
467, 475; UNITED STATES V. YELLOW CAB CO., 338 U.S. 338, 341; BOGARDUS
V. COMMISSIONER, SUPRA, AT 45 (DISSENTING OPINION).  (FN11) 

THIS CONCLUSION MAY NOT SATISFY AN ACADEMIC DESIRE FOR TIDINESS,
SYMMETRY AND PRECISION IN THIS AREA, ANY MORE THAN A SYSTEM BASED ON
THE DETERMINATIONS OF VARIOUS FACT-FINDERS ORDINARILY DOES.  BUT WE SEE
IT AS IMPLICIT IN THE PRESENT STATUTORY TREATMENT OF THE EXCLUSION FOR
GIFTS, AND IN THE VARIETY OF FORUMS IN WHICH FEDERAL INCOME TAX CASES
CAN BE TRIED.  IF THERE IS FEAR OF UNDUE UNCERTAINTY OR OVERMUCH
LITIGATION, CONGRESS MAY MAKE MORE PRECISE ITS TREATMENT OF THE MATTER
BY SINGLING OUT CERTAIN FACTORS AND MAKING THEM DETERMINATIVE OF THE
MATTER, AS IT HAS DONE IN ONE FIELD OF THE "GIFT" EXCLUSION'S FORMER
APPLICATION, THAT OF PRIZES AND AWARDS.  (FN12)  DOUBTLESS DIVERSITY OF
RESULT WILL TEND TO BE LESSENED SOMEWHAT SINCE FEDERAL INCOME TAX
DECISIONS, EVEN THOSE IN TRIBUNALS OF FIRST INSTANCE TURNING ON ISSUES
OF FACT, TEND TO BE REPORTED, AND SINCE THERE MAY BE A NATURAL TENDENCY
OF PROFESSIONAL TRIERS OF FACT TO FOLLOW ONE ANOTHER'S DETERMINATIONS,
EVEN AS TO FACTUAL MATTERS.  BUT THE QUESTION HERE REMAINS BASICALLY
ONE OF FACT, FOR DETERMINATION ON A CASE-BY-CASE BASIS. 

ONE CONSEQUENCE OF THIS IS THAT APPELLATE REVIEW OF DETERMINATIONS IN
THIS FIELD MUST BE QUITE RESTRICTED.  WHERE A JURY HAS TRIED THE MATTER
UPON CORRECT INSTRUCTIONS, THE ONLY INQUIRY IS WHETHER IT CANNOT BE
SAID THAT REASONABLE MEN COULD REACH DIFFERING CONCLUSIONS ON THE
ISSUE.  BAKER V. TEXAS & PACIFIC R. CO., SUPRA, AT 228.  WHERE THE
TRIAL HAS BEEN BY A JUDGE WITHOUT A JURY, THE JUDGE'S FINDINGS MUST
STAND UNLESS "CLEARLY ERRONEOUS."  FED. RULES CIV.  PROC., 52(A).  "A
FINDING IS 'CLEARLY ERRONEOUS' WHEN ALTHOUGH THERE IS EVIDENCE TO
SUPPORT IT, THE REVIEWING COURT ON THE ENTIRE EVIDENCE IS LEFT WITH THE
DEFINITE AND FIRM CONVICTION THAT A MISTAKE HAS BEEN COMMITTED." 
UNITED STATES V. UNITED STATES GYPSUM CO., 333 U.S. 364, 395.  THE RULE
ITSELF APPLIES ALSO TO FACTUAL INFERENCES FROM UNDISPUTED BASIC FACTS,
ID., AT 394, AS WILL ON MANY OCCASIONS BE PRESENTED IN THIS AREA.  CF.
GRAVER TANK & MFG. CO. V. LINDE AIR PRODUCTS CO., 339 U.S. 605, 609
610.  AND CONGRESS HAS IN THE MOST EXPLICIT TERMS ATTACHED THE
IDENTICAL WEIGHT TO THE FINDINGS OF THE TAX COURT.  I.R.C., SEC.
7482(A).  (FN13) 

FOURTH.  A MAJORITY OF THE COURT IS IN ACCORD WITH THE PRINCIPLES
JUST OUTLINED.  AND, APPLYING THEM TO THE DUBERSTEIN CASE, WE ARE IN
AGREEMENT, ON THE EVIDENCE WE HAVE SET FORTH, THAT IT CANNOT BE SAID
THAT THE CONCLUSION OF THE TAX COURT WAS "CLEARLY ERRONEOUS."  IT SEEMS
TO US PLAIN THAT AS TRIER OF THE FACTS IT WAS WARRANTED IN CONCLUDING
THAT DESPITE THE CHARACTERIZATION OF THE TRANSFER OF THE CADILLAC BY
THE PARTIES AND THE ABSENCE OF ANY OBLIGATION, EVEN OF A MORAL NATURE,
TO MAKE IT, IT WAS AT BOTTOM A RECOMPENSE FOR DUBERSTEIN'S PAST
SERVICES, OR AN INDUCEMENT FOR HIM TO BE OF FURTHER SERVICE IN THE
FUTURE.  WE CANNOT SAY WITH THE COURT OF APPEALS THAT SUCH A CONCLUSION
WAS "MERE SUSPICION" ON THE TAX COURT'S PART.  TO US IT APPEARS BASED
IN THE SORT OF INFORMED EXPERIENCE WITH HUMAN AFFAIRS THAT FACT-FINDING
TRIBUNALS SHOULD BRING TO THIS TASK. 

AS TO STANTON, WE ARE IN DISAGREEMENT.  TO FOUR OF US, IT IS CRITICAL
HERE THAT THE DISTRICT COURT AS TRIER OF FACT MADE ONLY THE SIMPLE AND
UNELABORATED FINDING THAT THE TRANSFER IN QUESTION WAS A "GIFT." 
(FN14)  TO BE SURE, CONCISENESS IS TO BE STRIVED FOR, AND PROLIXITY
AVOIDED, IN FINDINGS; BUT, TO THE FOUR OF US, THERE COMES A POINT WHERE
FINDINGS BECOME SO SPARSE AND CONCLUSORY AS TO GIVE NO REVELATION OF
WHAT THE DISTRICT COURT'S CONCEPT OF THE DETERMINING FACTS AND LEGAL
STANDARD MAY BE.  SEE MATTON OIL TRANSFER CORP. V. THE DYNAMIC, 123
F.2D 999, 1000-1001.  SUCH CONCLUSORY, GENERAL FINDINGS DO NOT
CONSTITUTE COMPLIANCE WITH RULE 52'S DIRECTION TO "FIND THE FACTS
SPECIALLY AND STATE SEPARATELY  ...  CONCLUSIONS OF LAW THEREON." 
WHILE THE STANDARD OF LAW IN THIS AREA IS NOT A COMPLEX ONE, WE FOUR
THINK THE UNELABORATED FINDING OF ULTIMATE FACT HERE CANNOT STAND AS A
FULFILLMENT OF THESE REQUIREMENTS.  IT AFFORDS THE REVIEWING COURT NOT
THE SEMBLANCE OF AN INDICATION OF THE LEGAL STANDARD WITH WHICH THE
TRIER OF FACT HAS APPROACHED HIS TASK.  FOR ALL THAT APPEARS, THE
DISTRICT COURT MAY HAVE VIEWED THE FORM OF THE RESOLUTION OR THE SIMPLE
ABSENCE OF LEGAL CONSIDERATION AS CONCLUSIVE.  WHILE THE JUDGMENT OF
THE COURT OF APPEALS CANNOT STAND, THE FOUR OF US THINK THERE MUST BE
FURTHER PROCEEDINGS IN THE DISTRICT COURT LOOKING TOWARD NEW AND
ADEQUATE FINDINGS OF FACT.  IN THIS, WE ARE JOINED BY MR. JUSTICE
WHITTAKER, WHO AGREES THAT THE FINDINGS WERE INADEQUATE, ALTHOUGH HE
DOES NOT CONCUR GENERALLY IN THIS OPINION. 

ACCORDINGLY, IN NO. 376, THE JUDGMENT OF THIS COURT IS THAT THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND IN NO. 546, THAT THE
JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND THE CASE IS REMANDED
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  THE OPERATIVE PROVISION IN THE CASES AT BAR IS SEC. 22(B)(3) OF
THE 1939 INTERNAL REVENUE CODE.  THE CORRESPONDING PROVISION OF THE
PRESENT CODE IS SEC. 102(A). 

FN2  IN BOTH CASES THE HUSBAND WILL BE REFERRED TO AS THE TAXPAYER,
ALTHOUGH HIS WIFE JOINED WITH HIM IN JOINT TAX RETURNS. 

FN3  SEE NOTE 14, INFRA. 

FN4  SEC. II.B., C. 16, 38 STAT. 167. 

FN5  THE FIRST CASE OF THE BOARD OF TAX APPEALS OFFICIALLY REPORTED
IN FACT DEALS WITH THE PROBLEM.  PARROTT V. COMMISSIONER, 1 B.T.A. 1. 

FN6  THE GOVERNMENT'S PROPOSED TEST IS STATED:  "GIFTS SHOULD BE
DEFINED AS TRANSFERS OF PROPERTY MADE FOR PERSONAL AS DISTINGUISHED
FROM BUSINESS REASONS." 

FN7  THE CASES INCLUDING "TIPS" IN GROSS INCOME ARE CLASSIC EXAMPLES
OF THIS.  SEE, E.G., ROBERTS V. COMMISSIONER, 176 F.2D 221. 

FN8  THE PARTS OF THE BOGARDUS OPINION WHICH WE TOUCH ON HERE ARE THE
ONES WE TAKE TO BE BASIC TO ITS HOLDING, AND THE ONES THAT WE READ AS
STATING THOSE GOVERNING PRINCIPLES WHICH IT ESTABLISHES.  AS TO THEM WE
SEE LITTLE DISTINCTION BETWEEN THE VIEWS OF THE COURT AND THOSE TAKEN
IN DISSENT IN BOGARDUS.  THE FEAR EXPRESSED BY THE DISSENT AT 302 U.S.,
AT 44, THAT THE PREVAILING OPINION "SEEMS" TO HOLD "THAT EVERY PAYMENT
WHICH IN ANY ASPECT IS A GIFT IS  ...  RELIEVED OF ANY TAX" STRIKES US
NOW AS GOING BEYOND WHAT THE OPINION OF THE COURT HELD IN FACT.  IN ANY
EVENT, THE COURT'S OPINION IN BOGARDUS DOES NOT SEEM TO HAVE BEEN SO
INTERPRETED AFTERWARDS.  THE PRINCIPAL DIFFERENCE, AS WE SEE IT,
BETWEEN THE COURT'S OPINION AND THE DISSENT LIES IN THE WEIGHT TO BE
GIVEN THE FINDINGS OF THE TRIER OF FACT. 

FN9  JUSTICE CARDOZO ONCE DESCRIBED IN MEMORABLE LANGUAGE THE INQUIRY
INTO WHETHER AN EXPENSE WAS AN "ORDINARY AND NECESSARY" ONE OF A
BUSINESS:  "ONE STRUGGLES IN VAIN FOR ANY VERBAL FORMULA THAT WILL
SUPPLY A READY TOUCHSTONE.  THE STANDARD SET UP BY THE STATUTE IS NOT A
RULE OF LAW; IT IS RATHER A WAY OF LIFE.  LIFE IN ALL ITS FULLNESS MUST
SUPPLY THE ANSWER TO THE RIDDLE."  WELCH V. HELVERING, 290 U.S. 111,
115.  THE SAME COMMENT WELL FITS THE ISSUE IN THE CASES AT BAR. 

FN10  CF., E.G., NELSON V. COMMISSIONER, 203 F.2D 1. 

FN11  IN BOGARDUS, THE COURT WAS DIVIDED 5 TO 4 AS TO THE SCOPE OF
REVIEW TO BE EXTENDED THE FACT-FINDER'S DETERMINATION AS TO A SPECIFIC
RECEIPT, IN A CONTEXT LIKE THAT OF THE INSTANT CASES.  THE MAJORITY
HELD THAT SUCH A DETERMINATION WAS "A CONCLUSION OF LAW OR AT LEAST A
DETERMINATION OF A MIXED QUESTION OF LAW AND FACT."  302 U.S., AT 39. 
THIS FORMULATION IT TOOK AS JUSTIFYING IT IN ASSUMING A FAIRLY BROAD
STANDARD OF REVIEW.  THE DISSENT TOOK A CONTRARY VIEW.  THE APPROACH OF
THIS PART OF THE COURT'S RULING IN BOGARDUS, WHICH WE THINK WAS THE
ONLY PART ON WHICH THERE WAS REAL DIVISION AMONG THE COURT, SEE NOTE 8,
SUPRA, HAS NOT BEEN AFFORDED SUBSEQUENT RESPECT HERE.  IN HEININGER, A
QUESTION PRESENTING AT THE MOST ELEMENTS NO MORE FACTUAL AND
UNTECHNICAL THAN THOSE HERE - THAT OF THE "ORDINARY AND NECESSARY"
NATURE OF A BUSINESS EXPENSE - WAS TREATED AS ONE OF FACT.  CF. NOTE 9,
SUPRA.  AND IN DOBSON V. COMMISSIONER, 320 U.S. 489, 498, N. 22,
BOGARDUS WAS ADVERSELY CRITICIZED, INSOFAR AS IT TREATED THE MATTER AS
REVIEWABLE AS ONE OF LAW.  WHILE DOBSON IS, OF COURSE, NO LONGER THE
LAW INSOFAR AS IT ORDAINS A GREATER WEIGHT TO BE ATTACHED TO THE
FINDINGS OF THE TAX COURT THAN TO THOSE OF ANY OTHER FACT-FINDER IN A
TAX LITIGATION, SEE NOTE 13, INFRA, WE THINK ITS CRITICISM OF THIS
POINT IN THE BOGARDUS OPINION IS SOUND IN VIEW OF THE DOMINANT
IMPORTANCE OF FACTUAL INQUIRY TO DECISION OF THESE CASES. 

FN12  I.R.C., SEC. 74, WHICH IS A PROVISION NEW WITH THE 1954 CODE. 
PREVIOUSLY, THERE HAD BEEN HOLDINGS THAT SUCH RECEIPTS AS THE "POT O'
GOLD" RADIO GIVEAWAY, WASHBURN V. COMMISSIONER, 5 T.C. 1333, AND THE
ROSS ESSAY PRIZE, MCDERMOTT V. COMMISSIONER, 80 U.S. APP.  D.C. 176,
150 F.2D 585, WERE "GIFTS."  CONGRESS INTENDED TO OBVIATE SUCH
RULINGS.  S. REP.  NO. 1622, 83D CONG., 2D SESS., P. 178.  WE IMPLY NO
APPROVAL OF THOSE HOLDINGS UNDER THE GENERAL STANDARD OF THE "GIFT"
EXCLUSION.  CF. ROBERTSON V. UNITED STATES, SUPRA. 

FN13  "THE UNITED STATES COURTS OF APPEALS SHALL HAVE EXCLUSIVE
JURISDICTION TO REVIEW THE DECISIONS OF THE TAX COURT  ... IN THE SAME
MANNER AND TO THE SAME EXTENT AS DECISIONS OF THE DISTRICT COURTS IN
CIVIL ACTIONS TRIED WITHOUT A JURY  ...  ."  THE LAST WORDS FIRST CAME
INTO THE STATUTE THROUGH AN AMENDMENT TO SEC. 1141(A) OF THE 1939 CODE
IN 1948 (SEC. 36 OF THE JUDICIAL CODE ACT, 62 STAT. 991).  THE PURPOSE
OF THE 1948 LEGISLATION WAS TO REMOVE FROM THE LAW THE FAVORED POSITION
(IN COMPARISON WITH DISTRICT COURT AND COURT OF CLAIMS RULINGS IN TAX
MATTERS) ENJOYED BY THE TAX COURT UNDER THIS COURT'S RULING IN DOBSON
V. COMMISSIONER, 320 U.S. 489.  CF. NOTE 11, SUPRA.  SEE GRACE BROS.,
INC., V. COMMISSIONER, 173 F.2D 170, 173.    FN14  THE "FINDINGS OF
FACT AND CONCLUSIONS OF LAW" WERE MADE ORALLY, AND WERE SIMPLY:  "THE
RESOLUTION OF THE BOARD OF DIRECTORS OF THE TRINITY OPERATING COMPANY,
INCORPORATED, HELD NOVEMBER 19, 1942, AFTER THE RESIGNATIONS HAD BEEN
ACCEPTED OF THE PLAINTIFF FROM HIS POSITIONS AS CONTROLLER OF THE
CORPORATION OF THE TRINITY CHURCH, AND THE PRESIDENT OF THE TRINITY
OPERATING COMPANY, INCORPORATED, WHEREBY A GRATUITY WAS VOTED TO THE
PLAINTIFF, ALLEN D. STANTON, IN THE AMOUNT OF $20,000 PAYABLE TO HIM IN
MONTHLY INSTALLMENTS OF $2,000 EACH, COMMENCING WITH THE MONTH OF
DECEMBER, 1942, CONSTITUTED A GIFT TO THE TAXPAYER, AND THEREFORE NEED
NOT HAVE BEEN REPORTED BY HIM AS INCOME FOR THE TAXABLE YEARS 1942, OR
1943." 

MR. JUSTICE HARLAN CONCURS IN THE RESULT IN NO. 376.  IN NO. 546, HE
WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS FOR THE REASONS
STATED BY MR. JUSTICE FRANKFURTER. 

MR. JUSTICE WHITTAKER, AGREEING WITH BOGARDUS THAT WHETHER A
PARTICULAR TRANSFER IS OR IS NOT A "GIFT" MAY INVOLVE "A MIXED QUESTION
OF LAW AND FACT," 302 U.S., AT 39, CONCURS ONLY IN THE RESULT OF THIS
OPINION. 

MR. JUSTICE DOUGLAS DISSENTS, SINCE HE IS OF THE VIEW THAT IN EACH OF
THESE TWO CASES THERE WAS A GIFT UNDER THE TEST WHICH THE COURT
FASHIONED NEARLY A QUARTER OF A CENTURY AGO IN BOGARDUS V.
COMMISSIONER, 302 U.S. 34. 

MR. JUSTICE BLACK, CONCURRING AND DISSENTING. 

I AGREE WITH THE COURT THAT IT WAS NOT CLEARLY ERRONEOUS FOR THE TAX
COURT TO FIND AS IT DID IN NO. 376 THAT THE AUTOMOBILE TRANSFER TO
DUBERSTEIN WAS NOT A GIFT, AND SO I AGREE WITH THE COURT'S OPINION AND
JUDGMENT REVERSING THE JUDGMENT OF THE COURT OF APPEALS IN THAT CASE. 

I DISSENT IN NO. 546, STANTON V. UNITED STATES.  THE DISTRICT COURT
FOUND THAT THE $20,000 TRANSFERRED TO MR. STANTON BY HIS FORMER
EMPLOYER AT THE END OF TEN YEARS' SERVICE WAS A GIFT AND THEREFORE
EXEMPT FROM TAXATION UNDER I.R.C. OF 1939, SEC. 22(B)(3) (NOW I.R.C. OF
1954, SEC. 102(A)).  I THINK THE FINDING WAS NOT CLEARLY ERRONEOUS AND
THAT THE COURT OF APPEALS WAS THEREFORE WRONG IN REVERSING THE DISTRICT
COURT'S JUDGMENT.  WHILE CONFLICTING INFERENCES MIGHT HAVE BEEN DRAWN,
THERE WAS EVIDENCE TO SHOW THAT MR. STANTON'S LONG SERVICES HAD BEEN
SATISFACTORY, THAT HE WAS WELL LIKED PERSONALLY AND HAD GIVEN SPLENDID
SERVICE, THAT THE EMPLOYER WAS UNDER NO OBLIGATION AT ALL TO PAY ANY
ADDED COMPENSATION, BUT MADE THE $20,000 PAYMENT BECAUSE PROMPTED BY A
GENUINE DESIRE TO MAKE HIM A "GIFT," TO AWARD HIM A "GRATUITY."  CF.
COMMISSION V. LOBUE, 351 U.S. 243, 246-247.  THE DISTRICT COURT'S
FINDING WAS THAT THE ADDED PAYMENT "CONSTITUTED A GIFT TO THE TAXPAYER,
AND THEREFORE NEED NOT HAVE BEEN REPORTED BY HIM AS INCOME  ...  ." 
THE TRIAL COURT MIGHT HAVE USED MORE WORDS, OR DISCUSSED THE FACTS SET
OUT ABOVE IN MORE DETAIL, BUT I DOUBT IF THIS WOULD HAVE MADE IT
CRUCIAL, ADEQUATELY SUPPORTED FINDING ANY CLEARER.  FOR THIS REASON I
WOULD REINSTATE THE DISTRICT COURT'S JUDGMENT FOR PETITIONER. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE JUDGMENT IN NO. 376 AND
DISSENTING IN NO. 546. 

AS THE COURT'S OPINION INDICATES, WE BROUGHT THESE TWO CASES HERE
PARTLY BECAUSE OF A CLAIMED DIFFERENCE IN THE APPROACHES BETWEEN TWO
COURTS OF APPEALS BUT PRIMARILY ON THE GOVERNMENT'S URGING THAT, IN THE
INTEREST OF THE BETTER ADMINISTRATION OF THE INCOME TAX LAWS,
CLARIFICATION WAS DESIRABLE FOR DETERMINING WHEN A TRANSFER OF PROPERTY
CONSTITUTES A "GIFT" AND IS NOT TO BE INCLUDED IN INCOME FOR PURPOSES
OF ASCERTAINING THE "GROSS INCOME" UNDER THE INTERNAL REVENUE CODE.  AS
SOON AS THIS PROBLEM EMERGED AFTER THE IMPOSITION OF THE FIRST INCOME
TAX AUTHORIZED BY THE SIXTEENTH AMENDMENT, IT BECAME EVIDENT THAT ITS
INHERENT DIFFICULTIES AND SUBTLETIES WOULD NOT EASILY YIELD TO THE
FORMULATION OF A GENERAL RULE OR TEST SUFFICIENTLY DEFINITE TO CONFINE
WITHIN NARROW LIMITS THE AREA OF JUDGMENT IN APPLYING IT.  WHILE AT ITS
CORE THE TAX CONCEPTION OF A GIFT NO DOUBT REFLECTED THE NON-LEGAL, NON
TECHNICAL NOTION OF A BENEFACTION UNENTANGLED WITH ANY ASPECT OF
WORLDLY REQUITAL, THE DIVERS BLENDS OF PERSONAL AND PECUNIARY
RELATIONSHIPS IN OUR INDUSTRIAL SOCIETY INEVITABLY PRESENTED NICETIES
FOR ADJUDICATION WHICH COULD NOT BE PUT TO REST BY ANY KIND OF GENERAL
FORMULATION. 

DESPITE ACUTE ARGUMENTS AT THE BAR AND A MOST THOROUGH RE-EXAMINATION
OF THE PROBLEM ON A FULL CANVASS OF OUR PRIOR DECISIONS AND AN
ATTEMPTED FRESH ANALYSIS OF THE NATURE OF THE PROBLEM, THE COURT HAS
REJECTED THE INVITATION OF THE GOVERNMENT TO FASHION ANYTHING LIKE A
LITMUS PAPER TEST FOR DETERMINING WHAT IS EXCLUDABLE AS A "GIFT" FROM
GROSS INCOME.  NOR HAS THE COURT ATTEMPTED A CLARIFICATION OF THE
PARTICULAR ASPECTS OF THE PROBLEM PRESENTED BY THESE TWO CASES, NAMELY,
PAYMENT BY AN EMPLOYER TO AN EMPLOYEE UPON THE TERMINATION OF THE
EMPLOYMENT RELATION AND NON-OBLIGATORY PAYMENT FOR SERVICES RENDERED IN
THE COURSE OF A BUSINESS RELATIONSHIP.  WHILE I AGREE THAT EXPERIENCE
HAS SHOWN THE FUTILITY OF ATTEMPTING TO DEFINE, BY LANGUAGE SO
CIRCUMSCRIBING AS TO MAKE IT EASILY APPLICABLE, WHAT CONSTITUTES A GIFT
FOR EVERY SITUATION WHERE THE PROBLEM MAY ARISE, I DO THINK THAT
GREATER EXPLICITNESS IS POSSIBLE IN ISOLATING AND EMPHASIZING FACTORS
WHICH MILITATE AGAINST A GIFT IN PARTICULAR SITUATIONS. 

THUS, REGARDING THE TWO FREQUENTLY RECURRING SITUATIONS INVOLVED IN
THESE CASES - THINGS OF VALUE GIVEN TO EMPLOYEES BY THEIR EMPLOYERS
UPON THE TERMINATION OF EMPLOYMENT AND PAYMENTS ENTANGLED IN A BUSINESS
RELATION AND OCCASIONED BY THE PERFORMANCE OF SOME SERVICE - THE STRONG
IMPLICATION IS THAT THE PAYMENT IS OF A BUSINESS NATURE.  THE PROBLEM
IN THESE TWO CASES IS ENTIRELY DIFFERENT FROM THE PROBLEM IN A CASE
WHERE A PAYMENT IS MADE FROM ONE MEMBER OF A FAMILY TO ANOTHER, WHERE
THE IMPLICATIONS ARE DIRECTLY OTHERWISE.  NO SINGLE GENERAL FORMULATION
APPROPRIATELY DEALS WITH BOTH TYPES OF CASES, ALTHOUGH BOTH INVOLVE THE
QUESTION WHETHER THE PAYMENT WAS A "GIFT."  WHILE WE SHOULD NORMALLY
SUPPOSE THAT A PAYMENT FROM FATHER TO SON WAS A GIFT, UNLESS THE
CONTRARY IS SHOWN, IN THE TWO SITUATIONS NOW BEFORE US THE BUSINESS
IMPLICATIONS ARE SO FORCEFUL THAT I WOULD APPLY A PRESUMPTIVE RULE
PLACING THE BURDEN UPON THE BENEFICIARY TO PROVE THE PAYMENT WHOLLY
UNRELATED TO HIS SERVICES TO THE ENTERPRISE.  THE COURT, HOWEVER, HAS
DECLINED SO TO ANALYZE THE PROBLEM AND HAS CONCLUDED "THAT THE
GOVERNING PRINCIPLES ARE NECESSARILY GENERAL AND HAVE ALREADY BEEN
SPELLED OUT IN THE OPINIONS OF THIS COURT, AND THAT THE PROBLEM IS ONE
WHICH, UNDER THE PRESENT STATUTORY FRAMEWORK, DOES NOT LEND ITSELF TO
ANY MORE DEFINITIVE STATEMENT THAT WOULD PRODUCE A TALISMAN FOR THE
SOLUTION OF CONCRETE CASES." 

THE COURT HAS MADE ONLY ONE AUTHORITATIVE ADDITION TO THE PREVIOUS
COURSE OF OUR DECISIONS.  RECOGNIZING BOGARDUS V. COMMISSIONER, 302
U.S. 34, AS "THE LEADING CASE HERE" AND FINDING ESSENTIAL ACCORD
BETWEEN THE COURT'S OPINION AND THE DISSENT IN THAT CASE, THE COURT HAS
DRAWN FROM THE DISSENT IN BOGARDUS FOR INFUSION INTO WHAT WILL NOT BE A
CONTROLLING QUALIFICATION, RECOGNITION THAT IT IS "FOR THE TRIERS OF
THE FACTS TO SEEK AMONG COMPETING AIMS OR MOTIVES THE ONES THAT
DOMINATED CONDUCT."  302 U.S. 34, 45 (DISSENTING OPINION).  ALL THIS
BEING SO IN VIEW OF THE COURT, IT SEEMS TO ME DESIRABLE NOT TO TRY TO
IMPROVE WHAT HAS "ALREADY BEEN SPELLED OUT" IN THE OPINIONS OF THIS
COURT BUT TO LEAVE TO THE LOWER COURTS THE APPLICATION OF OLD PHRASES
RATHER THAN TO FLOAT NEW ONES AND THEREBY INEVITABLY PRODUCE A NEW
VOLUME OF EXEGESIS ON THE NEW PHRASES. 

ESPECIALLY DO I BELIEVE THIS WHEN FACT-FINDING TRIBUNALS ARE DIRECTED
BY THE COURT TO RELY UPON THEIR "EXPERIENCE WITH THE MAINSPRINGS OF
HUMAN CONDUCT" AND ON THEIR "INFORMED EXPERIENCE WITH HUMAN AFFAIRS" IN
APPRAISING THE TOTALITY OF THE FACTS OF EACH CASE.  VARYING CONCEPTIONS
REGARDING THE "MAINSPRINGS OF HUMAN CONDUCT" ARE DERIVED FROM A VARIETY
OF EXPERIENCES OR ASSUMPTIONS ABOUT THE NATURE OF MAN, AND "EXPERIENCE
WITH HUMAN AFFAIRS," IS NOT ONLY DIVERSE BUT ALSO OFTEN DRASTICALLY
CONFLICTING.  WHAT THE COURT NOW DOES SETS FACT-FINDING BODIES TO SAIL
ON AN ILLIMITABLE OCEAN OF INDIVIDUAL BELIEFS AND EXPERIENCES.  THIS
CAN HARDLY FAIL TO INVITE, IF INDEED NOT ENCOURAGE, TOO INDIVIDUALIZED
DIVERSITIES IN THE ADMINISTRATION OF THE INCOME TAX LAW.  I AM AFRAID
THAT BY THESE NEW PHRASINGS THE PRACTICALITIES OF TAX ADMINISTRATION,
WHICH SHOULD BE AS UNIFORM AS IS POSSIBLE IN SO VAST A COUNTRY AS OURS,
WILL BE EMBARRASSED.  BY APPLYING WHAT HAS ALREADY BEEN SPELLED OUT IN
THE OPINIONS OF THIS COURT, I AGREE WITH THE COURT IN REVERSING THE
JUDGMENT IN COMMISSIONER V. DUBERSTEIN. 

BUT I WOULD AFFIRM THE DECISION OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT IN STANTON V. UNITED STATES.  I WOULD DO SO ON THE BASIS
OF THE OPINION OF JUDGE HAND AND MORE PARTICULARLY BECAUSE THE VERY
TERMS OF THE RESOLUTION BY WHICH THE $20,000 WAS AWARDED TO STANTON
INDICATED THAT IT WAS NOT A "GRATUITY" IN THE SENSE OF SHEER
BENEVOLENCE BUT IN THE NATURE OF A GENEROUS LAGNIAPPE, SOMETHING EXTRA
THROWN IN FOR SERVICES RECEIVED THOUGH NOT LEGALLY NOR MORALLY REQUIRED
TO BE GIVEN.   THIS CAREFUL RESOLUTION, DOUBTLESS DRAWN BY A LAWYER AND
ADOPTED BY SOME HARDHEADED BUSINESSMEN, CONTAINED A PROVISO THAT
STANTON SHOULD ABANDON ALL RIGHTS TO "PENSION AND RETIREMENT
BENEFITS."  THE FACT THAT STANTON HAD NO SUCH CLAIMS DOES NOT LESSEN
THE SIGNIFICANCE OF THE CLAUSE AS SOMETHING "TO MAKE ASSURANCE DOUBLY
SURE."  268 F.2D 728.  THE BUSINESS NATURE OF THE PAYMENT IS CONFIRMED
BY THE WORDS OF THE RESOLUTION, EXPLAINING THE "GRATUITY" AS "IN
APPRECIATION OF THE SERVICES RENDERED BY MR. STANTON AS MANAGER OF THE
ESTATE AND COMPTROLLER OF THE CORPORATION OF TRINITY CHURCH THROUGHOUT
NEARLY TEN YEARS, AND AS PRESIDENT OF TRINITY OPERATING COMPANY, INC."
THE FORCE OF THIS DOCUMENT, IN LIGHT OF ALL THE FACTORS TO WHICH JUDGE
HAND ADVERTED IN HIS OPINION, WAS NOT IN THE LEAST DIMINISHED BY
TESTIMONY AT THE TRIAL.  THUS THE TAXPAYER HAS TOTALLY FAILED TO
SUSTAIN THE BURDEN I WOULD PLACE UPON HIM TO ESTABLISH THAT THE PAYMENT
TO HIM WAS WHOLLY ATTRIBUTABLE TO GENEROSITY UNRELATED TO HIS
PERFORMANCE OF HIS SECULAR BUSINESS FUNCTIONS AS AN OFFICER OF THE
CORPORATION OF THE TRINITY CHURCH OF NEW YORK AND THE TRINITY OPERATING
CO. SINCE THE RECORD TOTALLY FAILS TO ESTABLISH TAXPAYER'S CLAIM, I SEE
NO NEED OF SPECIFIC FINDINGS BY THE TRIAL JUDGE. 
..END :
















UNITED STATES V. KAISER 363 U.S. 299 


NO. 55.  ARGUED MARCH 23, 1960.  - DECIDED JUNE 13, 1960.  - 262 F.2D
367, AFFIRMED. 


ON THE RECORD IN THIS CASE, THE JURY, AS FINDER OF THE FACTS, ACTED
WITHIN ITS COMPETENCE IN CONCLUDING THAT THE STRIKE ASSISTANCE, BY WAY
OF ROOM RENT AND FOOD VOUCHERS, RENDERED BY A LABOR UNION TO
RESPONDENT, WHO WAS PARTICIPATING IN A STRIKE AND WAS IN NEED, WAS A
"GIFT" WITHIN THE MEANING OF SEC. 102(A) OF THE INTERNAL REVENUE CODE
OF 1954 AND HENCE WAS EXCLUDED FROM INCOME FOR INCOME-TAX PURPOSES. 
COMMISSIONER V. DUBERSTEIN, ANTE, P. 278.  PP. 299-305. 

UNITED STATES V. KAISER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT, AND
DELIVERED AN OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND
MR. JUSTICE DOUGLAS JOIN. 

THIS CASE PRESENTS THE QUESTIONS WHETHER A LABOR UNION'S STRIKE
ASSISTANCE, BY WAY OF ROOM RENT AND FOOD VOUCHERS, FURNISHED TO A
WORKER PARTICIPATING IN A STRIKE CONSTITUTES INCOME TO HIM UNDER SEC.
61(A) OF THE INTERNAL REVENUE CODE OF 1954; (FN1) AND WHETHER THE
ASSISTANCE FURNISHED TO THIS PARTICULAR WORKER, WHO WAS IN NEED,
CONSTITUTED A "GIFT" TO HIM, AND HENCE WAS EXCLUDED FROM INCOME BY SEC.
102(A) OF THE CODE.  (FN2) 

THE RESPONDENT WAS EMPLOYED BY THE KOHLER COMPANY IN WISCONSIN.  THE
BARGAINING REPRESENTATIVE AT THE KOHLER PLANT WAS LOCAL 833 OF THE
UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO (UAW).  IN APRIL 1954, THE LOCAL, WITH THE APPROVAL OF THE
INTERNATIONAL UNION OF THE UAW, CALLED A STRIKE AGAINST KOHLER IN
SUPPORT OF VARIOUS BARGAINING DEMANDS IN CONNECTION WITH A PROPOSED
RENEWAL OF THEIR RECENTLY EXPIRED COLLECTIVE BARGAINING CONTRACT.  THE
RESPONDENT WAS NOT A MEMBER OF THE UNION, BUT HE WENT OUT ON STRIKE. 
HE HAD BEEN EARNING $2.16 AN HOUR AT HIS JOB.  THIS WAS HIS SOLE SOURCE
OF INCOME, AND WHEN HE STRUCK HE SOON FOUND HIMSELF IN FINANCIAL NEED. 
HE WENT TO THE UNION HEADQUARTERS AND REQUESTED ASSISTANCE.  IT WAS THE
POLICY OF THE UNION TO GRANT ASSISTANCE TO THE MANY KOHLER STRIKERS
SIMPLY ON A NEED BASIS.  IT MADE NO DIFFERENCE WHETHER A STRIKER WAS A
UNION MEMBER.  THE UNION REPRESENTATIVES QUESTIONED RESPONDENT AS TO
HIS FINANCIAL RESOURCES, AND HIS DEPENDENTS.  HE HAD NO OTHER JOB AND
NEEDED ASSISTANCE WITH RESPECT TO THE ESSENTIALS OF LIFE.  HE WAS
SINGLE DURING THE PRIOD IN QUESTION, AND THE UNION PROVIDED HIM WITH A
FOOD VOUCHER FOR $6 A WEEK, REDEEMABLE IN KIND AT A LOCAL STORE; THE
VOUCHER WAS LATER INCREASED TO $7.50 A WEEK.  THE UNION ALSO PAID HIS
ROOM RENT, WHICH AMOUNTED TO $9 A WEEK.  IF IN NEED, MARRIED STRIKERS
AND MARRIED STRIKERS WITH CHILDREN RECEIVED RESPECTIVELY LARGER FOOD
VOUCHERS.  (FN3)  THE OVER-ALL POLICY OF THE INTERNATIONAL UNION WAS
NOT TO RENDER STRIKE ASSISTANCE WHERE STRIKERS COULD OBTAIN STATE
UNEMPLOYMENT COMPENSATION OR LOCAL PUBLIC ASSISTANCE BENEFITS.  BUT THE
FORMER CONDITION DOES NOT PREVAIL IN WISCONSIN, (FN4) AND LOCAL PUBLIC
ASSISTANCE WAS AVAILABLE ONLY ON A SHOWING OF A DESTITUTION EVIDENTLY
DEEMED EXTREME BY THE UNION. 

THE UNION THOUGHT THAT STRIKERS OUGHT TO PERFORM PICKETING DUTY, BUT
DID NOT REQUIRE, ADVISE OR ENCOURAGE STRIKERS WHO WERE RECEIVING
ASSISTANCE TO PICKET OR PERFORM ANY OTHER ACTIVITY IN FURTHERANCE OF
THE STRIKE; BUT ASSISTANCE CEASED FOR STRIKERS WHO OBTAINED WORK. 
RESPONDENT PERFORMED SOME PICKETING, THOUGH APPARENTLY NO CONSIDERABLE
AMOUNT.  AFTER RECEIVING ASSISTANCE FOR SEVERAL MONTHS, HE JOINED THE
UNION.  THIS HAD IN NO WAY BEEN REQUIRED OF HIM OR SUGGESTED TO HIM IN
CONNECTION WITH THE CONTINUED RECEIPT OF ASSISTANCE. 

THE PROGRAM OF STRIKE ASSISTANCE WAS PRIMARILY FINANCED THROUGH THE
STRIKE FUND OF THE INTERNATIONAL UNION, WHICH HAD BEEN RAISED THROUGH
CREDITING TO IT 25 CENTS OF THE $1.25 PER CAPITA MONTHLY ASSESSMENT THE
INTERNATIONAL REQUIRED FROM THE LOCAL UNIONS.  THE LOCAL ALSO HAD A
SMALL STRIKE FUND BUILT UP THROUGH MONTHLY CREDITS OF 5 CENTS OF THE
LOCAL MEMBERS' DUES, AND CONTRIBUTIONS WERE RECEIVED IN SOME DEGREE,
NOT CONTENDED TO BE SUBSTANTIAL, FROM OTHER UNIONS AND OUTSIDERS.  THE
CONSTITUTION OF THE INTERNATIONAL UNION REQUIRED THAT IT BE THE
AUTHORIZING AGENCY FOR STRIKES, AND IMPOSED ON IT THE GENERAL DUTY TO
RENDER FINANCIAL ASSISTANCE TO THE MEMBERS ON STRIKE.  (FN5) 

DURING 1954, THE UNION FURNISHED RESPONDENT ASSISTANCE IN THE VALUE
OF $565.54.  IN COMPUTING HIS FEDERAL INCOME TAX FOR THE YEAR, HE DID
NOT INCLUDE IN GROSS INCOME ANY AMOUNT IN RESPECT OF THE ASSISTANCE. 
THE DISTRICT DIRECTOR OF INTERNAL REVENUE INFORMED RESPONDENT THAT THE
$565.54 SHOULD HAVE BEEN ADDED TO HIS GROSS INCOME AND THE TAX DUE
INCREASED BY $108 ACCORDINGLY.  RESPONDENT PAID THIS AMOUNT, AND AFTER
ADMINISTRATIVE REJECTION OF A REFUND CLAIM, SUED FOR A REFUND IN THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN.  A JURY TRIAL WAS
HAD, AND THE COURT SUBMITTED TO THE JURY THE SINGLE INTERROGATORY
WHETHER THE ASSISTANCE RENDERED TO RESPONDENT WAS A GIFT.  THE JURY
ANSWERED IN THE AFFIRMATIVE; BUT THE COURT ENTERED JUDGMENT FOR THE
GOVERNMENT, N.O.V., ON THE BASIS THAT AS A MATTER OF LAW THE ASSISTANCE
WAS INCOME TO THE RESPONDENT, AND DID NOT FALL WITHIN THE STATUTORY
EXCLUSION FOR GIFTS.  158 F. SUPP. 865. 

BY A DIVIDED VOTE, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
REVERSED.  262 F.2D 367.  IT HELD ALTERNATIVELY THAT THE ASSISTANCE WAS
NOT WITHIN THE CONCEPT OF INCOME OF SEC. 61(A) OF THE CODE, AND THAT IN
ANY EVENT THE JURY'S DETERMINATION THAT THE ASSISTANCE WAS A GIFT, AND
HENCE EXCLUDED FROM GROSS INCOME BY SEC. 102(A), HAD RATIONAL SUPPORT
IN THE EVIDENCE AND ACCORDINGLY WAS WITHIN ITS PROVINCE AS TRIER OF THE
FACTS.  WE GRANTED THE GOVERNMENT'S PETITION FOR CERTIORARI, BECAUSE OF
THE IMPORTANCE OF THE ISSUES PRESENTED.  359 U.S. 1010.  LATER, WHEN
THE GOVERNMENT PETITIONED FOR CERTIORARI IN NO. 376, COMMISSIONER V.
DUBERSTEIN, AND ACQUIESCED IN THE TAXPAYER'S PETITION IN NO. 546,
STANTON V. UNITED STATES, IT SUGGESTED THAT THOSE CASES BE SET DOWN FOR
ARGUMENT WITH THE CASE AT BAR, BECAUSE THEY ILLUSTRATED IN A MORE
GENERAL CONTEXT THE "GIFT" EXCLUSION ISSUES PRESENTED BY THIS CASE.  WE
AGREED, AND THE CASES WERE ARGUED TOGETHER.  WE CONCLUDE, ON THE BASIS
OF OUR OPINION IN THE DUBERSTEIN CASE, P. 278, ANTE, THAT THE JURY IN
THIS CASE, AS FINDER OF THE FACTS, ACTED WITHIN ITS COMPETENCE IN
CONCLUDING THAT THE ASSISTANCE RENDERED HERE WAS A GIFT WITHIN SEC.
102(A).   ACCORDINGLY, WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
THEREFORE, WE THINK IT UNNECESSARY TO CONSIDER OR EXPRESS ANY OPINION
AS TO WHETHER THE ASSISTANCE IN FACT CONSTITUTED INCOME TO THE
RESPONDENT WITHIN THE MEANING OF SEC. 61(A). 

AT TRIAL, COUNSEL FOR THE GOVERNMENT DID NOT MAKE OBJECTION TO ANY
PART OF THE DISTRICT COURT'S CHARGE TO THE JURY OR THE "GIFT"
EXCLUSION.  IN THIS COURT, THE CHARGE IS BELATEDLY CHALLENGED, AND ONLY
AS PART OF THE GOVERNMENT'S POSITION THAT THERE SHOULD BE FORMULATED A
NEW "TEST" FOR APPLICATION IN THIS AREA.  (FN6)  WE HAVE REJECTED THAT
CONTENTION IN OUR OPINION IN DUBERSTEIN.  IN THE ABSENCE OF SPECIFIC
OBJECTION AT TRIAL, OR OF DEMONSTRATION OF ANY COMPELLING REASON FOR
DISPENSING WITH SUCH OBJECTION, WE DO NOT HERE NOTICE ANY DEFECT IN THE
CHARGE, IN THE LIGHT OF THE CONTROLLING LEGAL PRINCIPLES AS WE HAVE
REVIEWED THEM IN DUBERSTEIN. 

WE THINK, ALSO, THAT THE PROOFS WERE ADEQUATE TO SUPPORT THE
CONCLUSION OF THE JURY.  OUR OPINION IN DUBERSTEIN STRESSES THE
BASICALLY FACTUAL NATURE OF THE INQUIRY AS TO THIS ISSUE.  THE FACTUAL
INFERENCES TO BE DRAWN FROM THE BASIC FACTS WERE HERE FOR THE JURY. 
THEY HAD THE POWER TO CONCLUDE, ON THE RECORD, TAKING INTO ACCOUNT SUCH
FACTORS AS THE FORM AND AMOUNT OF THE ASSISTANCE AND THE CONDITIONS OF
PERSONAL NEED, OF LACK OF OTHER SOURCES OF INCOME, COMPENSATION, OR
PUBLIC ASSISTANCE, AND OF DEPENDENCY STATUS, WHICH SURROUNDED THE
PROGRAM UNDER WHICH IT WAS RENDERED, THAT WHILE THE ASSISTANCE WAS
FURNISHED ONLY TO STRIKERS, IT WAS NOT A RECOMPENSE FOR STRIKING.  THEY
COULD HAVE CONCLUDED THAT THE VERY GENERAL LANGUAGE OF THE UNION'S
CONSTITUTION, WHEN CONSIDERED WITH THE NATURE OF THE UNION AS AN ENTITY
AND WITH THE FACTORS TO WHICH WE HAVE JUST REFERRED, DID NOT INDICATE
THAT BASICALLY THE ASSISTANCE PROCEEDED FROM ANY CONSTRAINT OF MORAL OR
LEGAL OBLIGATION, OF A NATURE THAT WOULD PRECLUDE IT FROM BEING A
GIFT.  AND ON ALL THESE CIRCUMSTANCES, THE JURY COULD HAVE CONCLUDED
THAT ASSISTANCE, RENDERED AS IT WAS TO A CLASS OF PERSONS IN THE
COMMUNITY IN ECONOMIC NEED, PROCEEDED PRIMARILY FROM GENEROSITY OR
CHARITY, RATHER THAN FROM THE INCENTIVE OF ANTICIPATED ECONOMIC
BENEFIT.  WE CAN HARDLY SAY THAT, AS A MATTER OF LAW, THE FACT THAT
THESE TRANSFERS WERE MADE TO ONE HAVING A SYMPATHETIC INTEREST WITH THE
GIVER PREVENTS THEM FROM BEING A GIFT.  THIS IS PRESENT IN MANY CASES
OF THE MOST UNQUESTIONABLE CHARITY. 

WE NEED NOT STOP TO SPECULATE AS TO WHAT CONCLUSION WE WOULD HAVE
DRAWN HAD WE SAT IN THE JURY BOX RATHER THAN THOSE WHO DID.  THE
QUESTION IS ONE OF THE ALLOCATION OF POWER TO DECIDE THE QUESTION; AND
ONCE WE SAY THAT SUCH CONCLUSIONS COULD WITH REASON BE REACHED ON THE
EVIDENCE, AND THAT THE DISTRICT COURT'S INSTRUCTIONS ARE NOT
OVERTHROWN, OUR REVIEWING AUTHORITY IS EXHAUSTED, AND WE MUST RECOGNIZE
THAT THE JURY WAS EMPOWERED TO RENDER THE VERDICT WHICH IT DID. 
AFFIRMED. 

FN1  "EXCEPT AS OTHERWISE PROVIDED IN THIS SUBTITLE, GROSS INCOME
MEANS ALL INCOME FROM WHATEVER SOURCE DERIVED, INCLUDING (BUT NOT
LIMITED TO) THE FOLLOWING ITEMS: 

"(1)  COMPENSATION FOR SERVICES, INCLUDING FEES, COMMISSIONS, AND
SIMILAR ITEMS: 

"(2)  GROSS INCOME DERIVED FROM BUSINESS: 

"(3)  GAINS DERIVED FROM DEALINGS IN PROPERTY: 

"(4)  INTEREST: 

"(5)  RENTS: 

"(6)  ROYALTIES: 

"(7)  DIVIDENDS: 

"(8)  ALIMONY AND SEPARATE MAINTENANCE PAYMENTS: 

"(9)  ANNUITIES: 

"(10)  INCOME FROM LIFE INSURANCE AND ENDOWMENT CONTRACTS: 

"(11)  PENSIONS: 

"(12)  INCOME FROM DISCHARGE OF INDEBTEDNESS: 

"(13)  DISTRIBUTIVE SHARE OF PARTNERSHIP GROSS INCOME: 

"(14)  INCOME IN RESPECT OF A DECEDENT; AND: 

"(15)  INCOME FROM AN INTEREST IN AN ESTATE OR TRUST." 

FN2  "GROSS INCOME DOES NOT INCLUDE THE VALUE OF PROPERTY ACQUIRED BY
GIFT  ...  ." 

FN3  AFTER THE INCREASE REFERRED TO, MARRIED STRIKERS WITHOUT
CHILDREN RECEIVED A $15 WEEKLY FOOD VOUCHER; THOSE WITH ONE CHILD, AN
$18 VOUCHER. 

FN4  COMPARE N.Y. LABOR LAW, SEC. 592 (COMPENSATION PAYABLE AFTER
SEVEN WEEKS OF STRIKING). 

FN5  ARTICLE 12, SEC. 1 PROVIDES THAT "THE INTERNATIONAL EXECUTIVE
BOARD  ...  SHALL HAVE THE POWER TO AUTHORIZE STRIKES."  SECTION 15 OF
THAT ARTICLE PROVIDES THAT UPON SUCH AUTHORIZATION, "IT SHALL BE THE
DUTY OF THE INTERNATIONAL EXECUTIVE BOARD TO RENDER ALL FINANCIAL
ASSISTANCE TO THE MEMBERS ON STRIKE CONSISTENT WITH THE RESOURCES AND
RESPONSIBILITIES OF THE INTERNATIONAL UNION." 

THE STRIKE FUNDS REFERRED TO ARE PROVIDED FOR BY SECS. 4 AND 11 OF
ART. 16 OF THE INTERNATIONAL'S CONSTITUTION. 

FN6  SPECIFIC CHALLENGE TO THE INSTRUCTIONS WAS NOT MADE BY THE
GOVERNMENT UNTIL ITS REPLY BRIEF IN THIS COURT, AND THEN ONLY ON THE
BASIS WE HAVE NOTED. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK JOINS, CONCURRING IN
THE RESULT. 

IN 1957 THE COMMISSIONER OF INTERNAL REVENUE RULED THAT STRIKE
BENEFITS PAID BY UNIONS TO STRIKERS ON THE BASIS OF NEED, WITHOUT
REGARD TO UNION MEMBERSHIP, WERE TO BE REGARDED AS PART OF THE
RECIPIENT'S GROSS INCOME FOR INCOME TAX PURPOSES.  REV. RUL. 57-1, 1957
1 CUM. BULL.  15.  THIS RULING, IF VALID, GOVERNS THIS CASE.  THE
TAXPAYER ASSAILS THE RULING ON THREE GROUNDS.  FIRST, IT IS URGED THAT
IN A SERIES OF RULINGS SINCE 1920 THE COMMISSIONER HAS TREATED BOTH
PUBLIC AND PRIVATE "SUBSISTENCE RELIEF" PAYMENTS AS NOT CONSTITUTING
GROSS INCOME; THAT UNION STRIKE BENEFITS ARE NOT RELEVANTLY DIFFERENT
FROM SUCH "SUBSISTENCE RELIEF"; AND THAT, WITH DUE REGARD TO FAIR TAX
ADMINISTRATION THE COMMISSIONER IS CONSTRAINED SO TO TREAT STRIKE
BENEFITS IN ORDER TO ACCORD "EQUAL TREATMENT."  SECOND, IT IS URGED
THAT BOTH THE COMMISSIONER'S RULINGS AND COURT DECISIONS HAVE EVOLVED
AN EXCLUSION FROM THE STATUTORY CATEGORY OF "GROSS INCOME," NOT
EXPLICITLY STATED IN THE STATUTE, FOR "ALLEVIATIVE" RECEIPTS WHICH DO
NOT RESULT IN ANY "ENRICHMENT," I.E., "REPARATION" PAYMENTS MADE IN
COMPENSATION FOR SOME LOSS OR INJURY SUFFERED BY THE RECIPIENT, AND
THAT STRIKE BENEFITS FALL WITHIN THIS EXCLUSION.  THIRD, IT IS URGED
THAT STRIKE BENEFITS IN GENERAL, OR AT LEAST THESE STRIKE BENEFITS IN
PARTICULAR, ARE TO BE DEEMED "GIFTS" WITHIN THE MEANING OF THE
STATUTORY EXCLUSION FROM GROSS INCOME OF "GIFTS." 

THE TAXPAYER'S FIRST GROUND, THAT OF THE DENIAL BY THE COMMISSIONER
TO STRIKE BENEFITS OF CONSISTENT TREATMENT ACCORDED OTHER PUBLIC AND
PRIVATE "SUBSISTENCE RELIEF" PAYMENTS, DEPENDS WHOLLY UPON PAST RULINGS
OF THE COMMISSIONER.  IN CHRONOLOGICAL ORDER, THE SUBSTANCE OF THE
COMMISSIONER'S RULINGS DEEMED RELEVANT TO THIS GROUND BY THE TAXPAYER
ARE SET OUT IN THE APPENDIX TO THIS OPINION, POST, P. 317.  SET OUT AS
WELL ARE THE RULINGS DEEMED PERTINENT BY BOTH PARTIES TO THE THEORY OF
"ALLEVIATIVE" "REPARATIONS" RECEIPTS.  THE TWO THEORIES OVERLAP AND
MUCH OF THE MATERIAL RELEVANT TO THEM IS THE SAME.  FOR EACH RULING ARE
INCLUDED THE RELEVANT FACTS, THE COMMISSIONER'S CONCLUSION, WITH HIS
REASONS AND SUPPORTING AUTHORITY WHEN GIVEN. 

WHAT THESE RULINGS REVEAL LARGELY DEPENDS ON THE VIEWPOINT FROM WHICH
THEIR MEANING IS READ.  ONLY TWO OF THE RULINGS SET OUT IN THE
APPENDIX, NUMBERS 1 AND 21, DEALT EXPRESSLY WITH STRIKE BENEFITS, AND
NUMBER 21 IS THE 1957 RULING HERE CHALLENGED.  PUTTING THIS 1957 RULING
ASIDE, THE CONCLUSION MAY BE DRAWN FROM THESE RULINGS THAT THE
COMMISSIONER HAS NOT TAXED RECEIPTS FOR WHICH NO SERVICES WERE RENDERED
AND NO DIRECT CONSIDERATION WAS GIVEN, WHICH DID NOT ARISE OUT OF AN
EMPLOYMENT RELATION, AND WHICH WERE RELATIVELY SMALL IN AMOUNT AND
DESIGNED TO ENABLE THE RECIPIENT TO PROVIDE FOR HIS NEEDS SO THEY CAN
BE SAID TO HAVE BEEN IN A SENSE "SUBSISTENCE" PAYMENTS.  NONE OF THE
RULINGS HOLDING PAYMENTS TAXABLE SQUARELY CONTRADICTS SUCH A
CONCLUSION.    NUMBER 2, TAXING UNION UNEMPLOYMENT BENEFITS, DOES NOT
BECAUSE THE BENEFITS THERE WERE PAID BY THE UNION ONLY TO ITS MEMBERS,
AND IT CAN BE SUPPOSED THAT MEMBERS PAID DUES AND LENT THEIR SUPPORT IN
OTHER WAYS, AND THUS THERE WAS CONSIDERATION FOR THE BENEFITS. 
NUMBERS 5, 15, 19, 24 AND 25, ALL HOLDING "SUBSISTENCE" PAYMENTS
TAXABLE, DO NOT CONTRADICT IT. THE PAYMENTS IN THOSE CASES WERE EITHER
MADE FROM FUNDS PARTLY OR WHOLLY SUSTAINED BY THE EMPLOYER (NUMBERS 5
AND 19), OR THE RECIPIENT HAD BECOME ELIGIBLE FOR BENEFITS BY PAYING
INTO THE FUND FROM WHICH THE PAYMENTS WERE MADE (NUMBERS 15, 24, AND
25).  THUS, IT CAN BE SAID THAT THERE WAS CONSIDERATION FOR THE
PAYMENTS, AS THERE IS, FOR EXAMPLE, CONSIDERATION FOR INSURANCE.  IN
NUMBERS 24 AND 25 IT IS IN FACT CLEAR THAT THE BENEFITS PAID VARIED
WITH THE RECIPIENT'S CONTRIBUTION TO THE FUND, AND IN NUMBER 15 THE
FACT IS NOT STATED ONE WAY OR THE OTHER. 

NUMBER 1, THE FIRST STRIKE-BENEFIT RULING, DOES NOT SQUARELY
CONTRADICT A CONCLUSION REGARDING "SUBSISTENCE RELIEF" PAYMENTS MADE
WITHOUT CONSIDERATION, BECAUSE THAT ALSO ONLY CONCERNED PAYMENTS TO
UNION MEMBERS. 

ONLY NUMBER 20 CASTS DOUBT ON THE CONCLUSION BUT NOT ENOUGH SERIOUSLY
TO DISTURB IT.  IN THAT RULING, CONCERNING PAYMENTS BY THE GERMAN
GOVERNMENT TO PERSONS MISTREATED BY THE NAZIS, IT WAS LEFT OPEN THAT
SOME PAYMENTS, GREATER THAN THE BASIS IN THE PROPERTY CONFISCATED BY
THE NAZIS, MIGHT BE TAXED AS INCOME, DEPENDING ON THE CIRCUMSTANCES. 
BUT IT CAN BE REASONED THAT SUCH PAYMENTS WERE WINDFALLS, NOT RELATED
TO "SUBSISTENCE," AND IN ANY EVENT IT WAS NOT CLEARLY DECIDED THAT THEY
WERE INCOME. 

SO, IF ONE STARTS WITH A FEELING OR ASSUMPTION THAT "SUBSISTENCE
RELIEF," PAID WITHOUT THE VOLUNTARY GIVING OF CONSIDERATION, HAS NOT
BEEN TAXED BY THE COMMISSIONER, MATERIAL MAY BE ADDUCED TO JUSTIFY
ONE'S STARTING POINT. 

THERE ARE TWO REASONS WHY SUCH REASONING DOES NOT CONCLUDE THIS CASE
IN MY VIEW.  FIRST, IT IS FAR FROM CLEAR THAT, AS A MATTER OF LAW, THE
SITUATION BEFORE US FALLS WITHIN A HYPOTHETICAL "SUBSISTENCE RELIEF"
CATEGORY.  ALTHOUGH THE TAXPAYER PAID NO UNION DUES BEFORE OR DURING
THE TAXABLE YEAR, HE DID PICKET, AND FOR PART OF THE YEAR HE WAS A
MEMBER OF THE UNION.  THE COMMISSIONER HAS REGULARLY TAXED
"SUBSISTENCE" PAYMENTS BY UNIONS TO UNION MEMBERS AS WELL AS PAYMENTS
MADE FROM A FUND TO WHICH THE RECIPIENT CONTRIBUTED, OR TO WHICH HIS
EMPLOYER CONTRIBUTED.  SEE NUMBERS 1, 2, 15, 19, 24 AND 25.  ALTHOUGH
IT MAY BE POSSIBLE TO DISTINGUISH ALL THESE RULINGS ON THE GROUND THAT
HERE TAXPAYER'S CONTRIBUTION TO THE UNION WAS MINIMAL AND THAT THE
STRIKE BENEFITS WERE IN FACT PAID TO MEMBERS AND NON-MEMBERS ALIKE,
THEY HARDLY FURNISH SOLID BASIS FOR A CLAIM OF UNIFORM TREATMENT OF NON
TAXABILITY BY THE COMMISSIONER OF PAYMENTS LIKE THE STRIKE BENEFITS IN
THIS CASE. 

MY SECOND OBJECTION IS MORE BASIC.  A FAIR EVALUATION OF THE
ADMINISTRATIVE MATERIALS IN THE APPENDIX DOES NOT LEAD TO THE
CONCLUSION THAT THE COMMISSIONER HAS UNIFORMLY TREATED SO-CALLED
"SUBSISTENCE RELIEF" AS A RELEVANT CATEGORY OF PAYMENTS, AND ONE NOT
SUBJECT TO TAX.  THE ONLY REASON URGED IN THIS CASE FOR HOLDING THE
COMMISSIONER BOUND TO FOLLOW RULINGS OF NON-TAXABILITY WHICH HE
CONSIDERS INAPPLICABLE IS RESPECT FOR AN OVERRIDING PRINCIPLE OF
"EQUAL" TAX TREATMENT.  THE COMMISSIONER CANNOT TAX ONE AND NOT TAX
ANOTHER WITHOUT SOME RATIONAL BASIS FOR THE DIFFERENCE.  AND SO,
ASSUMING THE CORRECTNESS OF THE PRINCIPLE OF "EQUALITY," IT CAN BE AN
INDEPENDENT GROUND OF DECISION THAT THE COMMISSIONER HAS BEEN
INCONSISTENT, WITHOUT MUCH CONCERN FOR WHETHER WE SHOULD HOLD AS AN
ORIGINAL MATTER THAT THE POSITION THE COMMISSIONER NOW SEEKS TO SUSTAIN
IS WRONG. 

IF I AM RIGHT ABOUT THE JUSTIFICATION FOR ASKING THIS COURT IN THIS
CASE TO BIND THE COMMISSIONER TO FORMER RELEVANT RULINGS, WITH
INDIFFERENCE TO THE CORRECTNESS OF HIS PRESENT POSITION AS AN
INDEPENDENT MATTER, THE APPROPRIATE INQUIRY IS NOT, "CAN SUCH AND SUCH
A PRINCIPLE BE DRAWN FROM THE ADMINISTRATIVE RULINGS?"  THE RIGHT
QUESTION IS, "IS THERE ANY RATIONAL BASIS FOR THE PRIOR RULINGS WHICH
DOES NOT APPLY TO THE PRESENT CASE?"  FOR ONLY IF THERE IS NO SUCH
RATIONAL BASIS CAN THE COMMISSIONER BE SAID TO BE DENYING "EQUAL"
TREATMENT.  ACCORDINGLY, I THINK THAT THE RULINGS IN WHICH THE
COMMISSIONER HAS NOT IMPOSED A TAX MUST BE ANALYZED TO ASCERTAIN
WHETHER THE ONLY PRINCIPLE WHICH CAN EXPLAIN THEM IS A PRINCIPLE THAT
"SUBSISTENCE RELIEF" IS NOT TAXABLE, OR WHETHER THEY CAN BE REASONABLY
EXPLAINED, INDIVIDUALLY OR SEVERALLY, AS THE RESULT OF THE APPLICATION
OF SOME OTHER PRINCIPLE OR PRINCIPLES WHICH DO NOT GOVERN THE PRESENT
STRIKE BENEFITS.  I THINK THE COMMISSIONER'S PRIOR RULINGS OF NON
TAXABILITY CAN ALL BE EXPLAINED IN A WAY WHICH LEAVES THE COMMISSIONER
FREE TO ASSERT THAT THE STRIKE BENEFITS IN THIS CASE ARE, UNLESS
"GIFTS," PART OF GROSS INCOME, WITHOUT DENYING "EQUAL" TREATMENT. 

THERE ARE SIXTEEN RULINGS SET FORTH IN THE APPENDIX IN WHICH NO TAX
WAS IMPOSED:  NUMBERS 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18,
20 AND 22.  OF THESE, REASONS WERE CLEARLY GIVEN IN SEVERAL, AND IN
SEVERAL OTHER REASONS WERE SUGGESTED THOUGH NOT SPELLED OUT.  IN NO
CASE WAS THE REASON GIVEN THAT THE PAYMENT WAS "SUBSISTENCE RELIEF" AND
NOT TAXABLE ON THAT SCORE.  THE NATURE OF THE PAYMENT AS "SUBSISTENCE"
WAS MENTIONED ONLY ONCE, IN NUMBER 12, AND IT WAS USED THERE AS A
CHARACTERIZATION, NOT A REASON, IN A RULING WHICH EXPRESSLY ACCEPTED
THE NATURE OF THE PAYMENTS AS "GIFTS."  THE REASONS WHICH HAVE BEEN
GIVEN SUGGEST TWO OTHER GROUNDS UPON WHICH THE COMMISSIONER HAS
EXCLUDED MANY OF THESE PAYMENTS FROM TAX. 

IN NUMBER 13, ONE REASON FOR THE RULING WAS STATED TO BE THAT THE
PAYMENTS "ARE CONSIDERED GRATUITOUS AND SPONTANEOUS."  IN LIGHT OF THE
CIRCUMSTANCES OF THAT CASE, INVOLVING DISASTER RELIEF, IT IS NATURAL TO
SUPPOSE THAT THIS LANGUAGE REFLECTS AN APPLICATION OF THE PRINCIPLE
THAT "GIFTS" ARE NOT PART OF GROSS INCOME.  SEE ALSO NUMBER 21,
EXPLAINING NUMBER 13. 

IN NUMBERS 3, 4, 6, 7, 14, 16, 20, AND WITH REGARD TO PART OF NUMBER
12, THE REASONS GIVEN OR SUGGESTED WERE THAT THE PAYMENT INVOLVED WAS
TO BE TREATED AS COMPENSATION FOR A LOSS OR INJURY THAT HAD BEEN
SUFFERED, AND THAT IT WAS NOT TAXABLE EITHER BECAUSE NOT GREATER IN
AMOUNT THAN THE LOSS OR BECAUSE THE THING LOST OR DAMAGED HAD NO
ASCERTAINABLE MARKET VALUE AND SO IT COULD NOT BE SAID THAT THERE HAD
BEEN ANY NET PROFIT TO THE TAXPAYER THROUGH THE EFFECTUAL EXCHANGE OF
THE THING LOST FOR THE PAYMENT RECEIVED.  ALTHOUGH NOT ARTICULATED
THERE, SUCH REASONS MAY WELL HAVE APPLIED ALSO IN NUMBER 13, WHOSE
EXPRESS GROUND WAS ONE OF "GIFT." 

THE FACT THAT A COMPANION QUESTION OR EVEN THE PRINCIPAL QUESTION IN
SOME OF THESE CASES (SEE NUMBERS 12 AND 20) WAS WHETHER THE PAYMENT
SHOULD REDUCE THE AMOUNT OF THE DEDUCTION PERMITTED BY THE CODE FOR A
CASUALTY LOSS, EMPHASIZES THE EXPLICIT TREATMENT OF THE PAYMENTS AS IN
RETURN FOR A LOSS SUFFERED. 

EVEN IN THOSE CASES WHERE THE THING LOST OR INJURED HAD NO BASIS TO
THE TAXPAYER FOR PURPOSES OF COMPUTING GAIN OR LOSS, THE LANGUAGE OF
REPARATION OR COMPENSATION FOR LOSS WAS USED.  THUS IN NUMBER 3 DAMAGES
FOR ALIENATION OF AFFECTIONS OR DEFAMATION WERE TREATED AS "IN
COMPROMISE" "FOR AN INVASION OF" A "PERSONAL RIGHT."  SEE ALSO MCDONALD
V. COMMISSIONER, 9 B.T.A. 1340, REFERRED TO IN NUMBER 7.  IN NUMBER 4
DAMAGES FOR BREACH OF PROMISE TO MARRY WERE HELD NOT TAXABLE BECAUSE "A
PROMISE TO MARRY IS A PERSONAL RIGHT NOT SUSCEPTIBLE OF ANY APPRAISAL
IN RELATION TO MARKET VALUES."   NUMBERS 6 AND 14 INVOLVED DEATH
PAYMENTS, AND THEY WERE CALLED "COMPENSATION FOR THE LOSS OF LIFE." 
IN NUMBER 16 THE PAYMENT TO A MISTREATED PRISONER OF WAR WAS CALLED
"REIMBURSEMENT." 

THE PRINCIPLE AT WORK HERE IS THAT PAYMENT WHICH COMPENSATES FOR A
LOSS OF SOMETHING WHICH WOULD NOT ITSELF HAVE BEEN AN ITEM OF GROSS
INCOME IS NOT A TAXABLE PAYMENT.  THE PRINCIPLE IS CLEAREST WHEN
APPLIED TO COMPENSATION FOR THE LOSS OF WHAT IS ORDINARILY THOUGHT OF
AS A CAPITAL ASSET, E.G., INSURANCE ON A HOUSE WHICH IS DESTROYED.  SEE
NUMBER 12.  IF A CAPITAL ASSET IS SOLD FOR NO MORE THAN ITS BASIS THERE
IS NO TAXABLE GAIN.  THE RESULT, THEN, IS THE SAME IF IT IS DESTROYED
AND THERE IS PAID IN COMPENSATION NO MORE THAN ITS BASIS.  THERE ARE,
TO BE SURE, DIFFICULTIES, NOT PRESENT WHERE ORDINARY ASSETS ARE
INVOLVED, IN APPLYING THIS PRINCIPLE TO COMPENSATION FOR THE LOSS OF
SOMETHING WHICH HAS NO BASIS AND WHICH IS NOT ORDINARILY THOUGHT OF AS
A CAPITAL ASSET, SUCH AS HEALTH OR LIFE OR AFFECTION OR REPUTATION. 
WITH THOSE DIFFICULTIES WE HAVE NO CONCERN.  THE RELEVANT QUESTION IS
WHETHER THE COMMISSIONER HAS, OR REASONABLY COULD HAVE, APPLIED A
PRINCIPLE OF REPARATION TO DEAL WITH THESE CASES, AND THE REASONS GIVEN
BY HIM IN NUMBERS 3, 4, 6, 7, 12, 14, 16, AND 20 SHOW THAT HE HAS. 

IT IS IMPORTANT TO NOTE THAT IN COMMISSIONER V. GLENSHAW GLASS CO.,
348 U.S. 426, 432, N. 8, WE RECOGNIZED JUST SUCH TREATMENT AS "THE LONG
HISTORY OF DEPARTMENTAL RULINGS HOLDING PERSONAL INJURY RECOVERIES
NONTAXABLE ON THE THEORY THAT THEY ROUGHLY CORRESPOND TO A RETURN OF
CAPITAL," AND DISTINGUISHED THOSE RULINGS FROM THE CASE OF PUNITIVE
DAMAGES, WHICH WE HELD NOT TO BE COMPENSATORY AND THEREFORE TAXABLE. 
SEE ALSO UNITED STATES V. SUPPLEE-BIDDLE HARDWARE CO., 265 U.S. 189,
195. 

THE RATIONALE OF PAYMENTS IN COMPENSATION FOR A LOSS IS NOT
APPLICABLE TO THE PRESENT CASE.  EVEN IF WE SUPPOSE THAT STRIKE
BENEFITS ARE MADE TO COMPENSATE IN A SENSE FOR THE LOSS OF WAGES, THE
PRINCIPLE OF PAYMENTS IN COMPENSATION DOES NOT APPLY BECAUSE THE THING
COMPENSATED FOR, THE WAGES, HAD THEY BEEN RECEIVED, WOULD HAVE BEEN
INCLUDED IN GROSS INCOME.  SEE UNITED STATES V. SAFETY CAR HEATING &
LIGHTING CO., 297 U.S. 88.  THAT IS NOT SO IN ANY OF THE RULINGS SET
OUT, WHERE THE THING LOST AND COMPENSATED FOR WAS NOT AN ITEM OF
TAXABLE INCOME, BUT AN ASPECT OF CAPITAL OR ANALOGOUS TO CAPITAL, WHICH
OBVIOUSLY WOULD NOT HAVE BEEN INCLUDED IN GROSS INCOME HAD IT BEEN
RETAINED. 

TAKING STOCK, THEN, TEN RULINGS OF NON-TAXABILITY ARE CLEARLY
EXPLAINABLE ACCORDING TO THE TWO LEGITIMATE PRINCIPLES OF "GIFT" AND
"COMPENSATION FOR LOSS" AND SHOULD NOT BIND THE COMMISSIONER TO A
PRINCIPLE THAT "SUBSISTENCE RELIEF" IS NOT TO BE TAXED.  THEY ARE
NUMBERS 3, 4, 6, 7, 13, 14, 15, 16, 20, AND PART OF 12.  THE REMAINING
PORTION OF NUMBER 12 CONCERNS RED CROSS DISASTER RELIEF IN THE FORM OF
FOOD AND CLOTHING.  A RULING REGARDING INCLUSION IN GROSS INCOME WAS
NOT ASKED FOR IN THAT CASE, WHICH CONCERNED THE USE OF THE CASUALTY
LOSS DEDUCTION WITH REGARD TO PAYMENTS FOR THE LOSS OF CAPITAL ASSETS. 
THE RELIEF WAS REFERRED TO AS A "GIFT" IN THE RULING, AND IT WAS SIMPLY
ASSERTED, WITHOUT EXPLICATION, THAT, AS TO THE FOOD AND CLOTHING, "NOR
DO THEY REPRESENT TAXABLE INCOME."  IT IS NOT UNREASONABLE TO ATTRIBUTE
THIS CONCLUSION TO AN APPLICATION OF THE PRINCIPLE OF "GIFT," IN LIGHT
OF THE NATURE OF THE RED CROSS AS A CHARITABLE ORGANIZATION. 

THE RULINGS IMPOSING NO TAX WHICH THUS REMAIN UNEXPLAINED AS EITHER
DEALING WITH "GIFTS" OR PAYMENTS IN COMPENSATION FOR LOSS ARE NUMBERS
8, 9, 10, 11, 17, 18, AND 22. 

NUMBERS 8, 9 AND 11 DEALT WITH FEDERAL OLD AGE AND DEATH PAYMENTS
UNDER THE SOCIAL SECURITY ACT. 

NUMBERS 10 AND 17 DEALT WITH UNEMPLOYMENT PAYMENTS UNDER THE SOCIAL
SECURITY ACT.  IN NUMBER 10 THE PAYMENTS WERE MADE BY THE STATES FROM
THE FEDERAL UNEMPLOYMENT TRUST FUND SET UP UNDER THAT ACT, AND IN
NUMBER 17 THE PAYMENTS WERE UNDER THE SOCIAL SECURITY PLAN TO COVER
FEDERAL EMPLOYEES. 

NUMBER 18 DEALT WITH PAYMENTS BY THE GOVERNMENT OF PANAMA UNDER AN
ACT "BASICALLY SIMILAR" TO THE UNITED STATES SOCIAL SECURITY ACT. 

NUMBER 22 DEALT WITH A STATE PAYMENT TO THE BLIND, UNDER A STATUTE
AUTHORIZING DISBURSEMENT OF MONEY RECEIVED FROM THE UNITED STATES FOR
SUCH A PURPOSE. 

EXCEPT FOR NUMBER 22, ALL THESE PAYMENTS CAME OUT OF UNITED STATES
SOCIAL SECURITY FUNDS, OR IN THE CASE OF NUMBER 18, A PANAMANIAN
ANALOGUE.  THE COMMISSIONER HAS EXPRESSLY TREATED THESE SOCIAL SECURITY
PAYMENTS AS RELATED TO EACH OTHER.  NUMBER 9 RELIES ON RULING NUMBER 8,
NUMBER 17 RELIES ON NUMBER 10, AND NUMBER 18 ON NUMBER 11.  THESE
SOCIAL SECURITY RULINGS RELY ON NO OTHERS, AND NO OTHERS RELY ON THEM. 
ON THE OTHER HAND, THE COMMISSIONER HAS UNIFORMLY TREATED AS TAXABLE
NON-GOVERNMENTAL PAYMENTS, EITHER BY EMPLOYERS, UNIONS, OR "PRIVATE"
GROUPS WHICH HAVE BEEN SIMILAR TO THE SOCIAL SECURITY BENEFITS NOT
TAXED IN THEIR CHARACTER AS "SUBSISTENCE RELIEF," EXCEPT FOR THEIR
PRIVATE NATURE.  SEE NUMBERS 1, 2, 5, 15, 19, 24 AND 25.  IN THE
INSTANCES URGED ON US, THE COMMISSIONER HAS NEVER TREATED SUCH A NON
GOVERNMENTAL PAYMENT AS NON-TAXABLE.  HAVING UNIFORMLY ACCORDED
DIFFERENT TREATMENT TO SMALL PENSION, OLD AGE, AND UNEMPLOYMENT
PAYMENTS, DEPENDING ON THEIR SOURCE, WHETHER THEY AROSE OUT OF A
PRIVATE ARRANGEMENT ON THE ONE HAND, OR UNDER THE FEDERAL SOCIAL
SECURITY PROGRAM ON THE OTHER, THE COMMISSIONER IS NOT DISENTITLED TO
TREAT THESE STRIKE BENEFITS AS HE HAS THE NON-GOVERNMENTAL PAYMENTS IN
THE PAST.  SURELY THERE IS A FAIR BASIS FOR DIFFERENTIATING, FOR INCOME
TAX PURPOSES, PAYMENTS UNDER A COMPREHENSIVE SCHEME OF FEDERAL WELFARE
LEGISLATION FROM PRIVATE PAYMENTS, ALTHOUGH THEIR ULTIMATE SOCIAL
PURPOSES MAY BE SIMILAR.  TO SAY THAT THE SOCIAL SECURITY RULINGS
CONTROL PRIVATE WELFARE SCHEMES IS TO SAY THAT THE COMMISSIONER HAS NOT
BEEN ENTITLED TO FIND IN THE POLICY OF THE SOCIAL SECURITY LEGISLATION,
IN RELATION TO THE TAX STATUTES, A REASON FOR EXCLUDING ITS BENEFITS
FROM TAXATION, WHILE THIS POLICY DOES NOT APPLY TO OTHER PAYMENTS. 
THE REMAINING RULING, NUMBER 22, DEALS WITH A STATE ASSISTANCE PAYMENT
TO THE BLIND.  ASIDE FROM THE DIFFERENCES WHICH ARISE FROM THE FACT
THAT THIS PAYMENT INVOLVED FEDERAL FUNDS, WHICH WAS SET FORTH IN THE
RULING AS ONE OF THE RELEVANT FACTS, IT MAY WELL HAVE BEEN TREATED BY
THE COMMISSIONER AS A GIFT, AND NOT UNREASONABLY SO, FOR THE BLIND ARE
A COMMON OBJECT OF CHARITY.  IN ANY CASE, THIS PAYMENT CANNOT ALONE
CREATE AN ADMINISTRATIVE PRACTICE BINDING THE COMMISSIONER IN THE
PRESENT CASE.    IN SUMMARY, THE RELEVANT INSTANCES IN WHICH THE
COMMISSIONER HAS RULED PAYMENTS NOT TAXABLE CAN ALL BE EXPLAINED
ACCORDING TO PRINCIPLES OTHER THAN THE GENERAL PRINCIPLE OF
"SUBSISTENCE RELIEF" URGED BY THE TAXPAYER.  PUTTING ASIDE THE QUESTION
OF "GIFT," THESE PRINCIPLES DO NOT COVER THE PRESENT CASE.  THEREFORE
THE COMMISSIONER, IN SEEKING TO TAX THESE STRIKE BENEFITS, HAS NOT
DENIED THE TAXPAYER "EQUAL" TREATMENT. 

NO ONE ARGUES THAT A TAX PRINCIPLE REGARDING "SUBSISTENCE RELIEF" CAN
BE DRAWN FROM THE STATUTE OR THE CASES.  THE TAXPAYER DOES URGE,
HOWEVER, THAT A PRINCIPLE CONCERNING "ALLEVIATIVE," "REPARATIONS"
PAYMENTS CAN AND SHOULD BE DERIVED.  I HAVE ALREADY DISCUSSED WHY SUCH
A PRINCIPLE IN MY VIEW DOES NOT INCLUDE THE PRESENT STRIKE BENEFITS,
WHICH COMPENSATE NO LOSS BUT THE LOSS OF WAGES, AND THESE WOULD HAVE
BEEN INCLUDED IN GROSS INCOME IF RECEIVED.  IT MIGHT BE ARGUED THAT THE
COURT SHOULD ITSELF FORMULATE A PRINCIPLE COVERING "SUBSISTENCE RELIEF"
PAYMENTS WHICH WOULD COVER THIS CASE.  THERE ARE CONTROLLING REASONS
FOR NOT FORMULATING SUCH A PRINCIPLE.  SUCH NEW PRINCIPLES IN THE TAX
LAW ARE BEST LEFT TO TREASURY INITIATIVE AND CONGRESSIONAL ADOPTION. 
MOREOVER, THE PRINCIPLE OF EXCLUDING "SUBSISTENCE" IS ALREADY REFLECTED
IN THE $600 PERSONAL EXEMPTION AND THE GRADUATED RATES. 

FINDING THESE STRIKE BENEFITS NOT OTHERWISE OUTSIDE THE STATUTORY
CONCEPT OF "GROSS INCOME," THE DECISIVE FACTOR FOR ME IN THIS CASE IS
WHETHER THE STRIKE BENEFITS ARE TO BE DEEMED A "GIFT."  AS A MATTER OF
ORDINARY READING OF LANGUAGE I COULD NOT CONCLUDE THAT ALL STRIKE
BENEFITS ARE, AS A MATTER OF LAW, "GIFTS."  I SHOULD SUPPOSE THAT A
STRIKE BENEFIT DOES NOT FIT THE NOTION OF "GIFT."  A UNION SURELY HAS
STRONG SELF-INTEREST IN PAYING SUCH BENEFITS TO STRIKERS.  THE
IMPLICATIONS ARISING OUT OF THE RELATIONSHIP BETWEEN A UNION WHICH
CALLS A STRIKE AND ITS STRIKERS ARE SUCH THAT, WITHOUT SOME SPECIAL
CIRCUMSTANCES, IT WOULD BE UNREALISTIC FOR A COURT TO CONCLUDE THAT
PAYMENTS MADE BY THE UNION FOR WHICH ONLY STRIKERS QUALIFY, EVEN THOUGH
BASED UPON NEED, DERIVE SOLELY FROM THE PROMPTINGS OF BENEVOLENCE. 

IN THIS CASE, HOWEVER, UNDER INSTRUCTIONS TO THE JURY THAT: 

"THE TERM 'GIFT' AS HERE USED DENOTES THE RECEIPT OF FINANCIAL
ADVANTAGE GRATUITOUSLY, WITHOUT OBLIGATION TO MAKE THE PAYMENT, EITHER
LEGAL OR MORAL, AND WITHOUT THE PAYMENT BEING MADE AS REMUNERATION FOR
SOMETHING THAT THE UNION WISHED DONE OR OMITTED BY THE PLAINTIFF.  TO
BE A GIFT, THE PAYMENTS MUST HAVE BEEN MADE WITH THE INTENT THAT THERE
BE NOTHING OF VALUE RECEIVED, OR THAT THEY WERE NOT MADE TO REPAY WHAT
WAS PLAINTIFF'S DUE BUT WERE BESTOWED ONLY BECAUSE OF PERSONAL REGARD
OR PITY OR FROM GENERAL MOTIVES OF PHILANTHROPY OR CHARITY.  IF THE
PLAINTIFF RECEIVED THIS ASSISTANCE SIMPLY AND SOLELY BECAUSE HE AND HIS
FAMILY WERE IN ACTUAL NEED AND NOT BECAUSE OF ANY OBLIGATIONS, AS ABOVE
REFERRED TO, OR ANY EXPECTATION OF ANYTHING IN RETURN, THEN SUCH
PAYMENTS WERE GIFTS." 

THE JURY FOUND IN A SPECIAL VERDICT THAT THE STRIKE BENEFIT PAYMENTS
TO TAXPAYER WERE A "GIFT."  THESE INSTRUCTIONS CERTAINLY WERE NOT
UNFAVORABLE TO THE GOVERNMENT. 

FOR ME, THEN, THE QUESTION IS WHETHER THERE IS ANYTHING IN THIS
PARTICULAR RECORD TO JUSTIFY A JURY IN FINDING, AS IT MUST BE DEEMED TO
HAVE FOUND UNDER THESE INSTRUCTIONS, THAT THE PAYMENT TO TAXPAYER WAS,
UNLIKE THE ORDINARY STRIKE BENEFIT, WHOLLY A BENEFACTION BECAUSE OF
NEED, UNINFLUENCED BY THE UNION'S SELF-INTEREST IN PROMOTING THE
SUCCESS OF THE STRIKE.  THE TRIAL JUDGE HELD THAT THE RECORD PRECLUDED
THE JURY'S VERDICT; THE COURT OF APPEALS REINSTATED THAT VERDICT. 

ON THE EVIDENCE IN THIS CASE, MAY THE JURY'S VERDICT STAND?  THERE
WAS EVIDENCE JUSTIFYING THE VIEW THAT IN THE PARTICULAR CIRCUMSTANCES
EXISTING IN SHEBOYGAN AT THE TIME THESE BENEFITS WERE PAID, THE UNION
HAD ASSUMED THE FUNCTIONS NORMALLY EXERCISED BY PRIVATE CHARITABLE
ORGANIZATIONS AND GOVERNMENTAL RELIEF PROGRAMS, IN VIEW OF THE
EXCESSIVE DIFFICULTY IN GETTING ADEQUATE RELIEF FROM THEM, SO THAT
THESE BENEFITS WERE DISPENSED PURSUANT TO SUCH A CHARITABLE RELIEF
PROGRAM IN WHAT, BECAUSE OF THE STRIKE, WAS A DISTRESSED AREA.  THE
MERE FACT THAT THE PAYMENTS WERE MADE BY THE UNION TO MEN PARTICIPATING
IN A STRIKE CALLED BY THE UNION DOES NOT AS A MATTER OF TAX LAW
CONCLUDE THE CASE AGAINST A "GIFT."  WHEN THE CIRCUMSTANCES NEGATING
THE BUSINESS NATURE OF THE PAYMENT WERE STRONG ENOUGH, THE COMMISSIONER
HAS RULED THAT EVEN PAYMENTS BY AN EMPLOYER TO HIS EMPLOYEES WERE
GIFTS.  SEE RULING NUMBER 13 IN THE APPENDIX, AND SEE ALSO REV. RUL. 59
58, 1959-1 CUM. BULL.  17, HOLDING THAT THE VALUE OF TURKEYS, HAMS,
ETC., GIVEN BY AN EMPLOYER TO EMPLOYEES AT CHRISTMAS OR SOME OTHER
HOLDIAY NEED NOT BE REPORTED AS INCOME.  ALTHOUGH IT IS FOR ME A VERY
CLOSE QUESTION, I FIND SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE
THEORY THAT IN MAKING THESE PAYMENTS THE UNION WAS EXERCISING A WHOLLY
CHARITABLE FUNCTION.  ON THIS VIEW, RESTRICTED TO THE PARTICULAR SET OF
CIRCUMSTANCES UNDER WHICH THE SPECIAL VERDICT WAS RENDERED, I WOULD
THEREFORE HOLD THE PAYMENT IN THIS CASE TO BE A GIFT AND WOULD AFFIRM
THE JUDGMENT BELOW. 

I AM WELL AWARE THAT THIS DISPOSITION OF THE CASE DOES NOT PRECLUDE
DIFFERENT JURIES REACHING DIFFERENT CONCLUSIONS ON THE SAME FACTS. 
SOME INDIVIDUALIZATION OF RESULT IS INEVITABLE SO LONG AS IT IS LEFT TO
COURTS TO DETERMINE WHAT IS OR IS NOT A "GIFT."  THE DIVERSITIES THAT
MAY THUS RESULT ARE ALL THE MORE INEVITABLE IN VIEW OF THE SCOPE LEFT
TO THE FACT-FINDERS - WHETHER COURTS OR JURY - BY OUR DECISION TODAY IN
COMMISSIONER V. DUBERSTEIN AND STANTON V. UNITED STATES, ANTE, P. 278. 

                                    APPENDIX TO OPINION

                                 OF MR. JUSTICE FRANKFURTER

                  AS USED IN THE CITATION TO MATERIALS IN THIS
APPENDIX,

                  "O.D."  REFERS TO AN OFFICE DECISION, "I.T."  TO
AN INCOME

                  TAX RULING, "SOL.  OP."  TO A SOLICITOR'S
OPINION, "S."  TO

            A SOLICITOR'S MEMORANDUM, "G.C.M."  TO A GENERAL
COUNSEL'S

                  MEMORANDUM, "REV.  RUL."  TO A REVENUE RULING,
AND "T.D." 

                  TO A TREASURY DECISION. 

1.  O.D. 552, 2 CUM. BULL.  73 (1920). 

"BENEFITS RECEIVED FROM A LABOR UNION BY AN INDIVIDUAL MEMBER WHILE
ON STRIKE ARE TO BE INCLUDED IN HIS GROSS INCOME FOR THE YEAR DURING
WHICH RECEIVED, THERE BEING NO PROVISION OF LAW EXEMPTING SUCH INCOME
FROM TAXATION." 

2.  I.T. 1293, I-1 CUM. BULL.  63 (1922). 

"AMOUNTS PAID BY AN ORGANIZED LABOR UNION AS UNEMPLOYED BENEFITS TO
ITS UNEMPLOYED MEMBERS ARE REQUIRED TO BE INCLUDED IN GROSS INCOME OF
THE RECIPIENTS." 

3.  SOL.  OP. 132, I-1 CUM. BULL.  92 (1922). 

DAMAGES FOR ALIENATION OF AFFECTIONS OR DEFAMATION OF CHARACTER HELD
NOT TO BE INCOME.  "IN THE LIGHT OF THESE DECISIONS OF THE SUPREME
COURT (STRATTON'S INDEPENDENCE V. HOWBERT, 231 U.S. 399, AND EISNER V.
MACOMBER, 252 U.S. 189) IT MUST BE HELD THAT THERE IS NO GAIN, AND
THEREFORE NO INCOME, DERIVED FROM THE RECEIPT OF DAMAGES FOR ALIENATION
OF AFFECTIONS OR DEFAMATION OF PERSONAL CHARACTER.  IN EITHER CASE THE
RIGHT INVADED IS A PERSONAL RIGHT AND IS IN NO WAY TRANSFERABLE.  WHILE
A JURY ENDEAVORS ROUGHLY TO COMPUTE THE AMOUNT OF DAMAGE INFLICTED, IN
THE VERY NATURE OF THINGS THERE CAN BE NO CORRECT ESTIMATE OF THE MONEY
VALUE OF THE INVADED RIGHTS.  THE RIGHTS ON THE ONE HAND AND THE MONEY
ON THE OTHER ARE INCOMPARABLE THINGS WHICH CAN NOT BE PLACED ON
OPPOSITE SIDES OF AN EQUATION.  IF AN INDIVIDUAL IS POSSESSED OF A
PERSONAL RIGHT THAT IS NOT ASSIGNABLE AND NOT SUSCEPTIBLE OF ANY
APPRAISAL IN RELATION TO MARKET VALUES, AND THEREAFTER RECEIVES EITHER
DAMAGES OR PAYMENT IN COMPROMISE FOR AN INVASION OF THAT RIGHT, IT CAN
NOT BE HELD THAT HE THEREBY DERIVES ANY GAIN OR PROFIT."  REVOKING S.
1384, 2 CUM. BULL.  71, 72 (1920), WHICH HAD HELD SUCH DAMAGES TAXABLE
AND RELYING ON T.D. 2747 (UNPUBLISHED) WHERE "IT WAS HELD THAT DAMAGES
FOR PERSONAL INJURIES DUE TO ACCIDENT DO NOT CONSTITUTE INCOME." 

4.  I.T. 1804, II-2 CUM. BULL.  61 (1923). 

DAMAGES FOR BREACH OF PROMISE TO MARRY NOT GROSS INCOME.  "A PROMISE
TO MARRY IS A PERSONAL RIGHT NOT SUSCEPTIBLE OF ANY APPRAISAL IN
RELATION TO MARKET VALUES  ...  ."  RELYING ON SOL.  OP. 132, SUPRA,
NUMBER 3, AND EISNER V. MACOMBER, 252 U.S. 189. 

5.  I.T. 1918, III-1 CUM. BULL.  121 (1924). 

PAYMENTS TO EMPLOYEES "INVOLUNTARILY THROWN OUT OF EMPLOYMENT BECAUSE
OF LACK OF WORK IN A CERTAIN INDUSTRY."  PAYMENTS MADE OUT OF A FUND
ESTABLISHED FOR THAT PURPOSE UNDER AN AGREEMENT BETWEEN "AN ASSOCIATION
OF MANUFACTURERS" AND AN "EMPLOYEES' ASSOCIATION" AND MAINTAINED BY
DEDUCTIONS FROM THE WAGES OF THOSE EMPLOYEES WHO RATIFY THE AGREEMENT
AND BY EQUIVALENT CONTRIBUTIONS FROM THE EMPLOYERS.  HELD, "ANY
BENEFITS PAID TO THE EMPLOYEE FROM THE FUND IN EXCESS OF THE AMOUNTS
WHICH HE HAS CONTRIBUTED WILL CONSTITUTE TAXABLE INCOME TO HIM."  ALSO
HELD THAT EMPLOYEES MAY NOT DEDUCT THEIR CONTRIBUTIONS TO THE FUND. 

6.  I.T. 2420, VII-2 CUM. BULL.  123 (1928). 

PAYMENT MADE TO TAXPAYER FOR THE DEATH OF HER HUSBAND ON THE
LUSITANIA.  PAYMENT MADE BY THE GOVERNMENT OF GERMANY THROUGH THE MIXED
CLAIMS COMMISSION OF THE UNITED STATES AND GERMANY.  HELD, PAYMENT NOT
INCOME.  "AN AWARD PAID FOR THE LOSS OF A LIFE IS COMPENSATION FOR THE
LOSS, AND AS SUCH IS NOT EMBRACED IN THE GENERAL CONCEPT OF THE TERM
'INCOME.'  IN THE INSTANT CASE, THE AWARD IS, IN FACT  ...  TO RESTORE
(THE RECIPIENT)  ...  TO SUBSTANTIALLY THE SAME FINANCIAL AND ECONOMIC
STATUS AS SHE POSSESSED PRIOR TO THE DEATH OF HER HUSBAND." 

7.  G.C.M. 4363, VII-2 CUM. BULL.  185 (1928); I.T. 2422, VII-2 CUM.
BULL.  186 (1928). 

DAMAGES FOR BREACH OF CONTRACT TO MARRY ARE NOT INCOME.  COMMISSIONER
ACQUIESCES IN 9 B.T.A.  1340 WHICH SO HOLDS.  O.D. 501, 2 CUM. BULL. 
70 (1920), AND I.T. 2170, IV-1 CUM. BULL 28 (1925), WHICH HELD
OTHERWISE, REVOKED. 

8.  I.T. 3194, 1938-1 CUM. BULL.  114. 

LUMP SUM PAYMENTS UNDER SEC. 204(A) OF THE SOCIAL SECURITY ACT, 49
STAT. 620, TO "AGED INDIVIDUALS NOT QUALIFIED FOR BENEFITS (UNDER SEC.
202 OF THE ACT)" UPON THEIR REACHING AGE 65.  PAYMENTS AMOUNT TO 3-1/2%
OF THE TOTAL WAGES PAID TO THE INDIVIDUAL WITH RESPECT TO EMPLOYMENT
AFTER DEC. 31, 1936, AND PRIOR TO REACHING 65.  HELD, PAYMENTS NOT
SUBJECT TO INCOME TAX. 

9.  I.T. 3229, 1938-2 CUM. BULL.  136. 

LUMP SUM DEATH PAYMENTS UNDER THE "FEDERAL OLD-AGE BENEFITS"
PROVISIONS IN SECS. 203 AND 204(B) OF THE SOCIAL SECURITY ACT TO THE
ESTATES OF THOSE DECEASED.  AMOUNT PAID EQUALS 3-1/2% OF WAGES EARNED
AFTER DEC. 31, 1936, IF DEATH OCCURS BEFORE 65; IF DEATH OCCURS AFTER
65 AMOUNT PAID IS THE DIFFERENCE BETWEEN WHAT THE DECEASED HAD ALREADY
BEEN PAID UNDER THE SOCIAL SECURITY ACT AND 3-1/2% OF HIS TOTAL WAGES
AFTER DEC. 31, 1936, OR THE DIFFERENCE BETWEEN WHAT THE DECEASED HAS
ALREADY BEEN PAID UNDER THE SOCIAL SECURITY ACT AND WHAT HE WAS
ENTITLED TO BE PAID UNDER THAT ACT DURING HIS LIFE, WHICHEVER
DIFFERENCE IS HIGHER.  HELD, CITING I.T. 3194, NUMBER 8, SUPRA, THAT
"LIKEWISE" THESE PAYMENTS ARE NOT SUBJECT TO INCOME TAX. 

10.  I.T. 3230, 1938-2 CUM. BULL.  136-137. 

BENEFIT PAYMENTS MADE "UNDER THE FEDERAL AND STATE PLAN FOR
UNEMPLOYMENT COMPENSATION" BY A STATE AGENCY DURING UNEMPLOYMENT
PERIODS.  THE PAYMENTS ARE MADE FROM A FUND HELD IN THE TREASURY OF THE
UNITED STATES, ESTABLISHED UNDER THE SOCIAL SECURITY ACT, CALLED THE
FEDERAL UNEMPLOYMENT TRUST FUND.  MONEY IS DEPOSITED IN THE FUND BY THE
VARIOUS STATES UNDER THE PROVISIONS OF THE SOCIAL SECURITY ACT.  HELD,
PAYMENTS NOT SUBJECT TO INCOME TAX. 

11.  I.T. 3447, 1941-1 CUM. BULL.  191. 

MONTHLY PAYMENTS FROM THE FEDERAL OLD AGE AND SURVIVORS INSURANCE
TRUST FUND UNDER SEC. 202 OF THE SOCIAL SECURITY ACT, AS AMENDED, 53
STAT. 1360.  HELD, PAYMENTS NOT SUBJECT TO INCOME TAX. 

12.  SPECIAL RULING, MAY 11, 1952, 1952-5 CCH FED. TAX.  REP.  PARA.
6196. 

RULING WAS ASKED WITH REGARD TO (1) WHETHER MONEY PAID BY THE RED
CROSS AS DISASTER RELIEF "WILL AFFECT THE DEDUCTIBILITY OF LOSSES
SUSTAINED BY THE TAXPAYER IN THE CASUALTY," AND (2) WHETHER DISASTER
RELIEF IN THE FORM OF FOOD, CLOTHING, MEDICAL SUPPLIES, ETC., WILL
AFFECT "THE LOSS DEDUCTION (FOR CASUALTY LOSSES PROVIDED BY THE
CODE)."  HELD, AMOUNTS RECEIVED "FROM THE AMERICAN RED CROSS BY A
DISASTER VICTIM IN THE FORM OF CASH OR PROPERTY FOR THE PURPOSE OF
RESTORING OR REHABILITATING PROPERTY OF THE VICTIM WHICH WAS LOST OR
DAMAGED IN THE CASUALTY SHOULD BE APPLIED TO REDUCE THE AMOUNT OF THE
DEDUCTIBLE LOSS SUSTAINED BY THE TAXPAYER," BUT "FOOD, MEDICAL
SUPPLIES, AND OTHER FORMS OF SUBSISTENCE RECEIVED BY THE TAXPAYER WHICH
ARE NOT REPLACEMENTS OF LOST PROPERTY DO NOT REDUCE THE AMOUNT OF ANY
LOSS DEDUCTION TO WHICH HE IS OTHERWISE ENTITLED NOR DO THEY REPRESENT
TAXABLE INCOME TO HIM." 

13.  REV. RUL. 131, 1953-2 CUM. BULL.  112. 

PAYMENTS "FOR PURPOSES OF REHABILITATION NOT ACTUALLY COMPENSATED FOR
BY INSURANCE OR OTHER SOURCES" BY A CORPORATION TO EMPLOYEES AND THEIR
FAMILIES WHO WERE INJURED OR SUSTAINED DAMAGES AS A RESULT OF A
TORNADO.  THE SIZE OF THE PAYMENTS DID NOT DEPEND UPON THE LENGTH OF
SERVICE OF THE EMPLOYEE OR THE NATURE OF HIS EMPLOYMENT, AND THE RULING
STATES THAT THE PAYMENTS WERE "NOT RELATED TO SERVICES RENDERED." 
HELD, PAYMENTS NOT TAXABLE INCOME.  "SUCH CONTRIBUTIONS, MEASURED
SOLELY BY NEED, ARE CONSIDERED GRATUITOUS AND SPONTANEOUS.  THE
OBJECTIVE OF THE CORPORATION IS TO TRY TO PLACE THE EMPLOYEES IN THE
SAME ECONOMIC POSITION, OR AS NEAR TO IT AS POSSIBLE, WHICH THEY HAD
BEFORE THE CASUALTY."    14.  REV. RUL. 54-19, 1954-1 CUM. BULL.  179. 

MONETARY RECOVERY BY DECEDENT'S ESTATE FOR DEATH UNDER STATE WRONGFUL
DEATH STATUTE.  HELD, RECOVERY NOT TAXABLE AS INCOME EITHER TO
DECEDENT'S ESTATE OR TO THOSE WHO EVENTUALLY RECEIVE THE PROCEEDS. 
"PROCEEDS OF THIS NATURE, THAT IS, COMPENSATION FOR LOSS OF LIFE, ARE
NOT EMBRACED IN THE GENERAL CONCEPT OF THE TERM 'INCOME.'"  CITING I.T.
2420, NUMBER 6, SUPRA. 

15.  REV. RUL. 54-190, 1954-1 CUM. BULL.  46. 

PENSION PAYMENTS TO EMPLOYEES FROM A FUND ADMINISTERED BY A UNION. 
FUND FINANCED BY COMPULSORY EMPLOYEE CONTRIBUTIONS, BASED ON EARNINGS. 
IT IS NOT STATED WHETHER OR HOW THE BENEFITS VARIED.  BENEFITS PAYABLE
ONLY AFTER AGE 60 TO EMPLOYEES UNABLE TO KEEP THEIR JOBS AND UNABLE TO
GET OTHER REGULAR EMPLOYMENT BECAUSE OF AGE OR DISABILITY.  BENEFITS
SUSPENDED WHEN EMPLOYEE'S WAGES REACH A CERTAIN LEVEL.  HELD, PAYMENTS
SUBJECT TO INCOME TAX.  SINCE THEY ARE "DIRECTLY ATTRIBUTABLE" TO
EMPLOYMENT THEY ARE NOT WITHOUT CONSIDERATION AND NOT GIFTS,
"ACCORDINGLY" THEY ARE INCOME. 

16.  REV. RUL. 55-132, 1955-1 CUM. BULL.  213. 

PAYMENTS UNDER THE WAR CLAIMS ACT OF 1948, 62 STAT. 1240, MADE BY THE
UNITED STATES TO A FORMER PRISONER OF WAR ON ACCOUNT OF AN ENEMY
GOVERNMENT'S VIOLATION OF ITS OBLIGATION TO FURNISH HIM HUMANE
TREATMENT WHILE HELD PRISONER.  HELD, PAYMENTS NOT SUBJECT TO INCOME
TAX BECAUSE "IN THE NATURE OF REIMBURSEMENT FOR THE LOSS OF PERSONAL
RIGHTS." 

17.  REV. RUL. 55-652, 1955-2 CUM. BULL.  21. 

UNEMPLOYMENT COMPENSATION PAYMENTS MADE TO FEDERAL EMPLOYEES PURSUANT
TO THE SOCIAL SECURITY ACT, AS AMENDED, 68 STAT. 1130.  PAYMENTS IN
AMOUNTS TO EQUAL PAYMENTS EMPLOYEES WOULD RECEIVE IF COVERED BY STATE
UNEMPLOYMENT COMPENSATION LAWS IN STATES WHERE EMPLOYED AND SUBJECT TO
THE SAME CONDITIONS AS SUCH STATE PAYMENTS WOULD BE.  PAYMENTS MADE
EITHER BY STATE, ACTING AS AGENT OF THE UNITED STATES, OR BY THE
SECRETARY OF LABOR.  HELD, PAYMENTS NOT SUBJECT TO INCOME TAX, RELYING
ON I.T. 3230, NUMBER 10, SUPRA (RELATING TO STATE UNEMPLOYMENT PAYMENTS
OUT OF FEDERALLY ADMINISTERED FUND UNDER THE SOCIAL SECURITY ACT).  THE
PRINCIPLE APPLIED THERE CONSIDERED EQUALLY APPLICABLE HERE. 

18.  REV. RUL. 56-135, 1956-1 CUM. BULL.  56. 

"SOCIAL SECURITY BENEFITS" PAID BY THE REPUBLIC OF PANAMA UNDER
PANAMA LAW TO UNITED STATES CITIZENS LIVING AND WORKING IN PANAMA. 
HELD, NOT SUBJECT TO INCOME TAX.  "SUCH BENEFITS ARE DEEMED TO BE
BASICALLY SIMILAR TO THE SUNDRY INSURANCE BENEFIT PAYMENTS MADE TO
INDIVIDUALS UNDER THE UNITED STATES SOCIAL SECURITY SYSTEM WHICH ARE
DESCRIBED AND HELD TO BE NONTAXABLE TO THE RECIPIENTS IN I.T. 3447
(NUMBER 11, SUPRA)." 

19.  REV. RUL. 56-249, 1956-1 CUM. BULL.  488. 

PAYMENTS TO UNEMPLOYED WORKERS AT M. CO. MADE FROM FUND TO WHICH ONLY
M. CO. CONTRIBUTES.  PAYMENTS SUPPLEMENT STATE UNEMPLOYMENT BENEFITS,
AND ARE ONLY PAID TO EMPLOYEES ELIGIBLE FOR STATE BENEFITS.  PAYMENTS
ARE SUCH THAT IN COMBINATION WITH STATE BENEFITS THEY GIVE EMPLOYEE A
CERTAIN PERCENTAGE OF HIS SALARY WHILE LAID OFF, WHICH PERCENTAGE
DEPENDS ON MARITAL STATUS, NUMBER OF DEPENDENTS AND WAGE RATE WHEN LAID
OFF.  LENGTH OF PAYMENT PERIOD DEPENDS ON SIZE OF FUND.  HELD, SUBJECT
TO INCOME TAX. 

20.  REV. RUL. 56-518, 1956-2 CUM. BULL.  25. 

PAYMENTS MADE BY GERMAN GOVERNMENT TO PERSONS PERSECUTED BY NAZI
GERMAN GOVERNMENT WHO SUFFERED DAMAGE TO "LIFE, BODY, HEALTH, LIBERTY,
RIGHTS OF PROPERTY OWNERSHIP, OR TO PROFESSIONAL OR ECONOMIC
ADVANCEMENT."  HELD, BECAUSE THE PAYMENTS ARE "IN THE NATURE OF
REIMBURSEMENT OF THE DEPRIVATION OF CIVIL OR PERSONAL RIGHTS," WHERE
THEY ARE ON ACCOUNT OF PROPERTY TAKEN AWAY THEY ARE NOT INCOME SO LONG
AS THEY ARE LESS THAN TAXPAYER'S BASIS IN THE PROPERTY.  WHERE PAYMENTS
ARE GREATER THAN BASIS THEY MAY OR MAY NOT BE INCOME DEPENDING ON THE
CIRCUMSTANCES OF THE CASE.  NO RULING MADE WITH REGARD TO PAYMENTS NOT
ON ACCOUNT OF PROPERTY TAKEN AWAY. 

21.  REV. RUL. 57-1, 1957-1 CUM. BULL.  15. 

STRIKE BENEFIT PAYMENTS MADE ON THE BASIS OF NEED TO STRIKERS WITHOUT
REGARD TO UNION MEMBERSHIP.  HELD, TAXABLE.  PAYMENTS ARE NOT
GRATUITOUS BECAUSE FOR THE UNION'S PURPOSES.  NO CONFLICT WITH I.T.
3230 (NUMBER 10, SUPRA, RELATING TO STATE UNEMPLOYMENT PAYMENTS UNDER
FEDERAL FUND), OR I.T. 3447 (NUMBER 11, SUPRA, RELATING TO FEDERAL
SOCIAL SECURITY INSURANCE PAYMENTS), BECAUSE "THE BENEFITS IN THESE
CASES WERE HELD NOT TO CONSTITUTE TAXABLE INCOME BECAUSE IT WAS
BELIEVED THAT CONGRESS INTENDED THAT SUCH BENEFITS BE NOT SUBJECT TO
TAX," AND THERE IS NO EVIDENCE OF SUCH INTENT HERE.  NO CONFLICT SEEN
WITH REV. RUL. 131 (NUMBER 13, SUPRA), RELATING TO CORPORATION'S
PAYMENTS TO REHABILITATE EMPLOYEES AFTER TORNADO, BECAUSE PAYMENTS
THERE WERE GRATUITOUS AND DONATIVE.  REV. RUL. 54-190 (NUMBER 15,
SUPRA), RELATING TO PENSION PAYMENTS FROM A UNION FUND FINANCED BY
DUES, RELIED UPON. 

22.  REV. RUL. 57-102, 1957-1 CUM. BULL.  26. 

PAYMENT TO A BLIND PERSON UNDER THE PUBLIC ASSISTANCE LAW OF
PENNSYLVANIA, FOR THE PURPOSE OF "PROVIDING FOR AND REGULATING
ASSISTANCE TO CERTAIN CLASSES OF PERSONS REQUIRING RELIEF."  THE LAW
AUTHORIZES THE STATE "TO COOPERATE WITH, AND TO ACCEPT AND DISBURSE
MONEY RECEIVED FROM, THE UNITED STATES GOVERNMENT FOR ASSISTANCE TO
SUCH PERSONS."  HELD, PAYMENTS NOT TAXABLE AS INCOME FOR THEY
CONSTITUTE "A DISBURSEMENT FROM A GENERAL WELFARE FUND IN THE INTEREST
OF THE GENERAL PUBLIC." 

23.  T.D. 6272, SEC. 1.61-11(B), 1957-2 CUM. BULL.  18, 30. 

"PENSIONS AND RETIREMENT ALLOWANCE PAID EITHER BY THE GOVERNMENT OR
BY PRIVATE PERSONS CONSTITUTE GROSS INCOME UNLESS EXCLUDED BY LAW  ...
." 

"  ...  AMOUNTS RECEIVED AS PENSIONS OR ANNUITIES UNDER THE SOCIAL
SECURITY ACT OR THE RAILROAD RETIREMENT ACT ARE EXCLUDED FROM GROSS
INCOME." 

24.  REV. RUL. 57-383, 1957-2 CUM. BULL.  44. 

PAYMENTS TO UNEMPLOYED WORKERS FROM UNION UNEMPLOYMENT FUND FINANCED
THROUGH DUES.  PLAN SIMILAR TO INSURANCE, EMPLOYEE CHOOSING BEFOREHAND
THE CLASS OF BENEFITS DESIRED, AND PAYING DUES ACCORDINGLY.  HELD,
TAXABLE. 

25.  REV. RUL. 59-5, 1959-1 CUM. BULL.  12. 

BENEFIT PAYMENTS FROM "PRIVATE" UNEMPLOYMENT FUND FINANCED BY DUES
FROM MEMBERS.  DUES VARY WITH CLASS OF BENEFITS DESIRED.  HELD,
PAYMENTS ARE INCOME TO THE EXTENT THAT THEY EXCEED THE CONTRIBUTIONS TO
THE FUND OF THE RECIPIENT.  "IN THE ABSENCE OF ANY PROVISION IN THE
CODE WHICH EXPRESSLY EXCLUDES UNEMPLOYMENT BENEFITS DERIVED FROM
PRIVATE SOURCES FROM FEDERAL INCOME TAXATION, THE RATIONALE OF THE
ABOVE-CITED CASE (COMMISSIONER V. GLENSHAW GLASS CO., 348 U.S. 426) AND
REVENUE RULING (REV. RUL. 57-383, NUMBER 24, SUPRA, RELATING TO
UNEMPLOYMENT BENEFITS FROM UNION FUND FINANCED THROUGH DUES) IS
APPLICABLE."  "EACH MEMBER MUST CONTRIBUTE TO THE FUND AN AMOUNT IN
RELATION TO THE BENEFITS WHICH HE DESIRES ULTIMATELY TO RECEIVE. 
THEREFORE, THE BENEFITS, WHEN RECEIVED, DO NOT CONSTITUTE AMOUNTS
GRATUITOUSLY PAID OR RECEIVED SO AS TO BE CONSIDERED GIFTS."  CITING
REV. RUL. 54-190 (NUMBER 15, SUPRA, RELATING TO PENSION PAYMENTS FROM
UNION FUND FINANCED BY DUES). 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN THE OPINION OF MY BROTHER BRENNAN, MY VIEW OF THE MERITS
IS SO DIVERGENT FROM THE REST THAT A WORD OF EXPLANATION IS NEEDED. 
BOGARDUS V. COMMISSIONER, 302 U.S. 34, 41, IN HOLDING PAYMENTS BY
STOCKHOLDERS TO EMPLOYEES WERE, ON THE FACTS THERE PRESENT, GIFTS,
SAID: 

"THERE IS ENTIRELY LACKING THE CONSTRAINING FORCE OF ANY MORAL OR
LEGAL DUTY AS WELL AS THE INCENTIVE OF ANTICIPATED BENEFIT OF ANY KIND
BEYOND THE SATISFACTION WHICH FLOWS FROM THE PERFORMANCE OF A GENEROUS
ACT." 

HAD A MOTION FOR A DIRECTED VERDICT BEEN MADE BY RESPONDENT AT THE
CLOSE OF THE EVIDENCE, I THINK WITH ALL DEFERENCE THAT IT SHOULD HAVE
BEEN GRANTED, SINCE MY IDEA OF A "GIFT" WITHIN THE MEANING OF THE
INTERNAL REVENUE CODE IS A MUCH BROADER CONCEPT THAN THAT OF MY
BRETHREN.  AS THE OPINION OF THE COURT POINTS OUT, THIS STRIKER (WHO
BECAME A UNION MEMBER WITHOUT SOLICITATION SEVERAL MONTHS AFTER HE
BEGAN RECEIVING BENEFITS) HAD NO LEGAL OR MORAL DUTY TO PICKET OR TO DO
ANY OTHER ACT IN FURTHERANCE OF THE STRIKE.  THERE IS NO EVIDENCE THAT
THE UNION MADE THESE PAYMENTS TO KEEP THIS STRIKER IN LINE.  IT IS SAID
THAT THESE STRIKE PAYMENTS SERVE THE UNION'S CAUSE IN PROMOTING THE
STRIKE.  YET THE WHOLE SETTING OF THE CASE INDICATES TO ME THESE
PAYMENTS WERE WELFARE, PLAIN AND SIMPLE.  UNIONS, LIKE EMPLOYERS, MAY
HAVE CHARITABLE IMPULSES AND INCENTIVES.  HERE ONLY THE NEEDY GOT THE
RELIEF.*  YET SINCE (SO FAR AS THE PRESENT RECORD SHOWS) RESPONDENT
ACQUIESCED IN THE SUBMISSION TO THE JURY, THE UNITED STATES RECEIVED
MORE FAVORED CONSIDERATION THAT IT COULD CLAIM AS OF RIGHT. 

*AN ADMINISTRATIVE LETTER FROM THE NATIONAL UNION TO THE LOCAL UNIONS
DATED MARCH 6, 1952, STATES IN PART: 

"THE HANDLING OF THE EMERGENCY HEALTH AND WELFARE PROBLEMS OF OUR
MEMBERS AND THEIR FAMILIES IS ONE OF THE MOST IMPORTANT TASKS FACING
OUR UNION DURING STRIKE PERIODS.  WE SHOULD DO EVERYTHING POSSIBLE TO
MINIMIZE THE HARDSHIP OF OUR MEMBERS AND THEIR FAMILIES DURING STRIKE
PERIODS BY USING THE RESOURCES OF THE COMMUNITY AND OUR UNION. 

"THE INTERNATIONAL UNION, UAW-CIO, HAS ESTABLISHED A COMMUNITY
SERVICES PROGRAM IN ORDER TO ASSIST OUR MEMBERS IN MAKING FULL USE OF
COMMUNITY SERVICES.  THESE HEALTH AND WELFARE AGENCIES HAVE BEEN
ORGANIZED IN THE COMMUNITY TO RENDER SERVICES, INCLUDING FINANCIAL
ASSISTANCE, MEDICAL, HOSPITAL AND NURSING CARE, LEGAL AID, UNEMPLOYMENT
COMPENSATION (IN NEW YORK STATE), FAMILY AND CHILD CARE AND OTHER SUCH
SERVICES.  THESE SERVICES CAN BE USED BY OUR MEMBERS DURING STRIKE
PERIODS AS WELL AS IN LAY-OFF PERIODS.  OUR MEMBERS SUPPORT AND PAY FOR
SUCH SERVICES THROUGH TAXES FOR FEDERAL, STATE AND LOCAL PUBLIC
AGENCIES AND THROUGH CONTRIBUTIONS FOR VOLUNTARY COMMUNITY AGENCIES. 

     *         *         *         *         * 

"  ...  EMERGENCY STRIKE ASSISTANCE MAY BE GIVEN TO STRIKERS WHO
CANNOT MEET THEIR MINIMUM NEEDS WITH THEIR OWN INDIVIDUAL RESOURCES,
WHO CANNOT QUALIFY FOR SUCH ASSISTANCE FROM COMMUNITY AGENCIES.   LOCAL
UNIONS REQUIRING STRIKE ASSISTANCE FROM THE INTERNATIONAL UNION MUST
MAKE THEIR APPLICATION FOR ASSISTANCE TO THEIR REGIONAL DIRECTOR." 

THE PARTIES STIPULATED TO THE FOLLOWING: 

"  ...  THE INTERNATIONAL UNION GRANTS STRIKE BENEFITS TO NON-MEMBERS
OF THE UNION, WHO PARTICIPATE IN A STRIKE, IF THEY DO NOT HAVE
SUFFICIENT INCOME TO PURCHASE FOOD OR TO MEET AN EMERGENCY SITUATION. 
THE UNION TREATS SUCH NON-MEMBERS ON THE SAME BASIS AS MEMBERS OF THE
UNION, BUT NON-MEMBERS AS WELL AS MEMBERS MUST BE STRIKERS BEFORE THEY
MAY RECEIVE ASSISTANCE FROM THE UNION. 

"IN ORDER TO OBTAIN STRIKE BENEFITS FROM THE UNION, EACH APPLICANT
MUST APPEAR BEFORE A UNION COUNSELLOR WHO ASKS HIM A SERIES OF
QUESTIONS WHICH ARE CONTAINED ON A PRINTED COUNSELLING FORM. 

     *         *         *    *         * 

"  ...  THE UNION MAKES A DISTINCTION BETWEEN APPLICANTS IN GRANTING
STRIKE BENEFITS TO THEM, DEPENDING ON THEIR MARITAL STATUS AND NUMBER
OF DEPENDENTS.  AT THE TIME THE KOHLER STRIKE AID PROGRAM BEGAN, A
SINGLE PERSON RECEIVED A FOOD VOUCHER FOR $6.00 PER WEEK; A MARRIED
COUPLE WITHOUT DEPENDENTS RECEIVED A FOOD VOUCHER FOR $10,00 A WEEK; A
MARRIED COUPLE WITH TWO CHILDREN, A FOOD VOUCHER FOR $13.85 A WEEK.  ON
JUNE 28, 1954, THE UNION INCREASED THE AMOUNT OF AID TO THE PEOPLE ON
THE KOHLER STRIKE:  AID FOR A SINGLE PERSON WAS INCREASED TO $7.50 A
WEEK; FOR A MARRIED COUPLE WITHOUT DEPENDENTS AID WAS INCREASED TO
$15.00 A WEEK; AID FOR A MARRIED COUPLE WITH ONE CHILD WAS INCREASED TO
$18.00 A WEEK." 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWARD JOIN, DISSENTING. 

THE QUESTION HERE IS WHETHER, IN THE LIGHT OF THE RULE ADOPTED BY THE
COURT TODAY IN COMMISSIONER V. DUBERSTEIN, ANTE, P. 278, THERE IS A
REASONABLE BASIS IN THE EVIDENCE TO SUPPORT THE JURY'S CONCLUSION THAT
THE STRIKE BENEFITS PAID TO RESPONDENT BY THE UNION WERE NONTAXABLE
"GIFTS," WITHIN THE MEANING OF SEC. 102(A) OF THE 1954 INTERNAL REVENUE
CODE.  (FN1) 

WITH DEFERENCE, I AM CONVINCED THAT THERE WAS NOT, AND THAT, TO THE
CONTRARY, THE EVIDENCE COMPELS THE CONCLUSION, AS A MATTER OF LAW, THAT
THOSE STRIKE BENEFITS WERE NOT "GIFTS" WITHIN THE MEANING OF SEC.
102(A), AS CONSTRUED BY THE COURT IN THE DUBERSTEIN CASE.  (FN2) 

THE INTERNATIONAL UNION IS A PRIVATE LABOR ORGANIZATION SERVING AS
THE CERTIFIED BARGAINING AGENT AND REPRESENTATIVE OF NUMEROUS
COLLECTIVE BARGAINING UNITS OF EMPLOYEES.  ONE OF ITS PRINCIPAL
PURPOSES, AS STATED IN ITS CONSTITUTION, IS TO CALL, OR APPROVE THE
CALL BY ITS LOCAL UNIONS, OF STRIKES TO OBTAIN BETTER WAGES, HOURS AND
WORKING CONDITIONS FOR THOSE EMPLOYEES, AND, OF COURSE, TO WIN SUCH
STRIKES.  TO THAT END, ITS CONSTITUTION PROVIDES FOR THE CREATION OF A
STRIKE FUND, OUT OF THE DUES OF ITS MEMBERS, FOR USE IN ASSISTING ITS
LOCAL UNIONS IN WAGING AND WINNING SUCH STRIKES, AND IT HAS ACTUALLY
CREATED AND MAINTAINS SUCH A STRIKE FUND.  (FN3)  ARTICLE 12, SEC. 15
OF ITS CONSTITUTION FURTHER PROVIDES THAT: 

"IF AND WHEN A STRIKE HAS BEEN APPROVED BY THE INTERNATIONAL
EXECUTIVE BOARD, IT SHALL BE THE DUTY OF THE INTERNATIONAL EXECUTIVE
BOARD TO RENDER ALL FINANCIAL ASSISTANCE TO THE MEMBERS ON STRIKE
CONSISTENT WITH THE RESOURCES AND RESPONSIBILITIES OF THE INTERNATIONAL
UNION."    THUS THERE IS A CLEAR AND SPECIFIC UNDERTAKING BY THE
INTERNATIONAL UNION TO FURNISH ASSISTANCE TO ITS STRIKING MEMBERS WHEN,
AS HERE, IT HAS APPROVED THE STRIKE, AND THE UNION HAS CREATED AND
MAINTAINS A FUND FOR THAT PURPOSE. 

ALTHOUGH THE MENTIONED PROVISIONS OF THE INTERNATIONAL'S CONSTITUTION
RELATE TO FINANCIAL ASSISTANCE TO UNION MEMBERS, IT WAS STIPULATED AT
THE TRIAL THAT: 

"THE INTERNATIONAL UNION GRANTS STRIKE BENEFITS TO NON-MEMBERS OF THE
UNION, WHO PARTICIPATE IN A STRIKE, IF THEY DO NOT HAVE SUFFICIENT
INCOME TO PURCHASE FOOD OR TO MEET AN EMERGENCY SITUATION.  THE UNION
TREATS SUCH NON-MEMBERS ON THE SAME BASIS AS MEMBERS OF THE UNION, BUT
NON-MEMBERS AS WELL AS MEMBERS MUST BE STRIKERS BEFORE THEY MAY RECEIVE
ASSISTANCE FROM THE UNION." 

IT WAS FURTHER STIPULATED THAT RESPONDENT, WHO WAS NOT A MEMBER OF
THE UNION DURING THE EARLY MONTHS OF THE STRIKE, "RECEIVED FROM THE
INTERNATIONAL UNION" STRIKE BENEFITS TOTALING $565.54 DURING THE
TAXABLE YEAR 1954.  (FN4) 

IT IS NOW ESTABLISHED THAT OBJECTIVE INTENTION OF THE TRANSFEROR
DETERMINES WHETHER TRANSFERS CONSTITUTE "GIFTS," WITHIN THE MEANING OF
SEC. 102(A).  BOGARDUS V. COMMISSIONER, 302 U.S. 34; COMMISSIONER V.
DUBERSTEIN, ANTE, P. 278.  IN DUBERSTEIN, THE COURT, IN ATTEMPTING TO
SHED ADDITIONAL LIGHT ON THE FACTORS DETERMINATIVE OF WHETHER REQUISITE
DONATIVE INTENT IMPELLED THE TRANSFER, SAID: 

"THIS COURT HAS INDICATED THAT A VOLUNTARY EXECUTED TRANSFER OF HIS
PROPERTY BY ONE TO ANOTHER, WITHOUT ANY CONSIDERATION OR COMPENSATION
THEREFOR, THOUGH A COMMON-LAW GIFT, IS NOT NECESSARILY A 'GIFT' WITHIN
THE MEANING OF THE STATUTE  ...  .  AND, IMPORTANTLY, IF THE PAYMENT
PROCEEDS PRIMARILY FROM 'THE CONSTRAINING FORCE OF ANY MORAL OR LEGAL
DUTY,' OR FROM 'THE INCENTIVE OF ANTICIPATED BENEFIT' OF AN ECONOMIC
NATURE ...  IT IS NOT A GIFT  ...  .  A GIFT IN THE STATUTORY SENSE, ON
THE OTHER HAND, PROCEEDS FROM A 'DETACHED AND DISINTERESTED
GENEROSITY,'  ...  ; 'OUT OF AFFECTION, RESPECT, ADMIRATION, CHARITY OR
LIKE IMPULSES.'  ...  " COMMISSIONER V. DUBERSTEIN, ANTE, AT P. 285. 

I FIND NOTHING IN THIS RECORD TO INDICATE THAT THE STRIKE BENEFIT
PAYMENTS BY THE UNION TO RESPONDENT AND OTHER STRIKING WORKERS, WHILE
THEY WERE WAGING THE STRIKE, WERE MADE OUT OF ANY "DETACHED AND
DISINTERESTED GENEROSITY," OR "OUT OF AFFECTION, RESPECT, ADMIRATION,
CHARITY OR LIKE IMPULSES."  TO THE CONTRARY, IT SEEMS PLAIN ENOUGH THAT
THOSE PAYMENTS WERE MADE BY THE UNION TO ENABLE AND ENCOURAGE
RESPONDENT AND OTHER STRIKING WORKERS TO CONTINUE THE STRIKE WHICH HAD
BEEN CALLED OR APPROVED BY THE UNION, AND WERE NOT MOTIVATED BY
BENEVOLENCE.  THOSE PAYMENTS WERE THEREFORE MADE IN FURTHERANCE OF ONE
OF THE UNION'S PRINCIPAL ECONOMIC OBJECTIVES - THE WINNING OF THE
STRIKE - AND HENCE PROCEEDED PRIMARILY FROM "'THE INCENTIVE OF
ANTICIPATED BENEFIT' OF AN ECONOMIC NATURE" TO THE UNION, AND FROM "THE
CONSTRAINING FORCE" OF THE UNION'S PROMISE TO ASSIST STRIKING WORKERS
IN WINNING THE STRIKE.  DUBERSTEIN, ANTE, P. 285.  BECAUSE OF THE
ECONOMIC ADVANTAGES TO BE OBTAINED BY THE UNION FROM WINNING THE
STRIKE, THE UNION HAD A MANIFEST SELF-INTEREST IN FINANCIALLY
SUSTAINING THE STRIKERS WHILE THEY CARRIED ON ITS STRIKE.  THIS SHOWS,
AS A MATTER OF LAW, THAT THE PYAMENTS WERE NOT MADE WITH THE DONATIVE
INTENT REQUIRED TO CONSTITUTUE "GIFTS" WITHIN THE MEANING OF SEC.
102(A) AND OF THE BOGARDUS AND DUBERSTEIN CASES.  WHOLLY APART FROM THE
IMMEDIATE OBJECTIVE WHICH THE UNION SOUGHT TO ACHIEVE BY PAYING THESE
STRIKE BENEFITS, THEY COULD QUALIFY AS "GIFTS," AS THE COURT
RECOGNIZES, ONLY IF THEY WERE MADE, AS SAID IN DUBERSTEIN, WITH A
"'DETACHED AND DISINTERESTED GENEROSITY,'" AND THIS RECORD SHOWS THAT
IT WAS PRINCIPALLY PRIVATE BUSINESS PURPOSES, NOT DETACHED AND
DISINTERESTED GENEROSITY, THAT PROMPTED THE UNION TO MAKE THE PAYMENTS
IN QUESTION. 

TO BE SURE, THE INTERNATIONAL'S SECRETARY-TREASURER EXPRESSED HIS
CONCLUSION AT THE TRIAL THAT, IN THE COURSE OF THIS STRIKE, THE
INTERNATIONAL CARRIED OUT THE "SAME FUNCTION" AS WOULD A LOCAL WELFARE
AGENCY IN FURNISHING ASSISTANCE TO NEEDY PERSONS.  BUT IT IS IMPORTANT
TO DISTINGUISH THE VERY DIFFERENT FACTORS THAT IMPELLED THE UNION FROM
THOSE THAT MOTIVATE A LOCAL WELFARE AGENCY IN FURNISHING SUCH
ASSISTANCE.  THE UNION MADE PAYMENTS ONLY TO STRIKERS TO SUSTAIN THEM
WHILE THEY CARRIED ON THE STRIKE, WHEREAS, A WELFARE AGENCY ASSISTS THE
NEEDY SOLELY FROM HUMANITARIAN IMPULSES, WITHOUT PURPOSE TO OBTAIN ANY
BENEFIT FOR ITSELF, AND WHETHER THE NEEDY RECIPIENTS ARE STRIKERS OR
NOT.  PUBLIC WELFARE PAYMENTS REPRESENT THE CHARITABLE RESPONSE OF THE
COMMUNITY TO RELIEVE HARDSHIPS ARISING FROM CONDITIONS BEYOND ITS
CONTROL; BUT THE STRIKE BENEFITS SHOWN BY THIS RECORD WERE DESIGNED,
PRINCIPALLY AT LEAST, FOR THE PURPOSE OF SUSTAINING THE STRIKERS WHILE
THEY CARRIED ON THE UNION'S STRIKE TO VICTORIOUS END.  THE MOTIVATION
OF A PUBLIC WELFARE AGENCY IN SUPPLYING BASIC NEEDS TO THE UNEMPLOYED
IS PURELY CHARITABLE IN NATURE, BUT PAYMENTS BY A PRIVATE UNION TO
STRIKING WORKERS TO ENABLE THEM TO CONTINUE TO SUCCESSFUL CONCLUSION A
STRIKE CALLED OR APPROVED BY THE UNION, CANNOT REASONABLY BE SAID TO
HAVE PROCEEDED PRIMARILY FROM ANY SUCH CHARITABLE IMPULSE.  (FN5) 

THIS CONCLUSION IS FORTIFIED BY THE CONSISTENT AND LONG-STANDING
RULINGS OF THE TREASURY DEPARTMENT.  IT HAS TWICE RULED THAT STRIKE
BENEFITS DO NOT CONSTITUTUE NON-TAXABLE "GIFTS" TO THE RECIPIENT.  IN
1920 IT HELD THAT: 

"BENEFITS RECEIVED FROM A LABOR UNION BY AN INDIVIDUAL MEMBER WHILE
ON STRIKE ARE TO BE INCLUDED IN HIS GROSS INCOME FOR THE YEAR DURING
WHICH RECIEVED, THERE BEING NO PROVISION OF LAW EXEMPTING SUCH INCOME
FROM TAXATION."  O.D. 552, 2 CUM. BULL.  73 (1920). 

AND AGAIN IN 1957, IT RULED: 

"STRIKE BENEFIT PAYMENTS ARE INCLUDED WITHIN THE BROAD DEFINITION OF
GROSS INCOME AND DO NOT FALL WITHIN ANY OF THE EXCLUSIONS PROVIDED FOR
IN THE CODE, INCLUDING THE EXCLUSIONS FOR GIFTS UNDER SECTION 102. 
THEY ARE PAID ONLY UPON THE EVENT OF A STRIKE WHICH IS A MEANS EMPLOYED
BY THE UNION AND ITS MEMBERS FOR SECURING ECONOMIC BENEFITS, AND, FOR
THIS REASON, THEY DO NOT CONSTITUTE AMOUNTS GRATUITOUSLY PAID OR
RECEIVED. 

     *         *         * *         * 

"ACCORDINGLY, THE STRIKE BENEFIT PAYMENTS RECEIVED UNDER THESE
CIRCUMSTANCES DO NOT CONSTITUTE GIFTS BUT CONSTITUTE INCOME AND ARE
INCLUDIBLE IN THE GROSS INCOME OF THE RECIPIENTS EVEN THOUGH
DISTRIBUTED ON THE BASIS OF THEIR NEED AND REGRADLESS OF WHETHER THE
RECIPIENTS ARE MEMBERS OR NONMEMBERS OF THE UNION."  REV. RUL. 57-1,
1957-1 CUM. BULL.  15, 16-17. 

NOR DO I FIND IN THIS RECORD ANY "SPECIAL CIRCUMSTANCES" WHICH MIGHT
SUPPORT THE JURY'S CONCLUSION THAT THE PAYMENTS MADE TO RESPONDENT WERE
"GIFTS."  THE RECORD SHOWS THAT IT WAS THE UNION'S POLICY AT THE TIME
OF THIS STRIKE TO REQUIRE STRIKERS TO AVAIL THEMSELVES OF ANY
ASSISTANCE OFFERED BY LOCAL COMMUNITY AGENCIES BEFORE SEEKING
ASSISTANCE FROM THE UNION.  HOWEVER, THE UNION DECIDED TO WAIVE THIS
REQUIREMENT WITH REGARD TO THE STRIKE INVOLVED HERE, FOR THE REASONS
GIVEN BY THE INTERNATIONAL'S SECRETARY-TREASURER: 

"IN THIS PARTICULAR CASE, THE COMMUNITY ASSISTANCE AVAILABLE IN
SHEBOYGAN COUNTY WAS SO SMALL, AND SO MUCH RED TAPE INVOLVED IN
OBTAINING IT, WE DECIDED THAT KOHLER WORKERS WOULD NOT HAVE TO SEEK
ASSISTANCE FROM THE COMMUNITY AGENCIES." 

     *         *         *         *         * 

"THE POLICY IN 1954 WAS TO USE COMMUNITY AGENCIES BUT, AS I TESTIFIED
PREVIOUSLY, THAT IN THE CASE OF THE KOHLER WORKERS WE WAIVED THAT
PARTICULAR POLICY BECAUSE, AFTER CHECKING WITH THE SHEBOYGAN WELFARE
AGENCY, WE FOUND THAT THE KOHLER WORKERS WERE EXPECTED TO GIVE UP THEIR
LICENSE PLATES AND NOT USE THEIR AUTOMOBILES, AND RESTRICTIONS WERE SO
GREAT THAT WE DIDN'T THINK WE OUGHT TO IMPOSE THOSE RESTRICTIONS ON THE
KOHLER WORKERS." 

THIS DETERMINATION WAS FURTHER EVIDENCE THAT THE UNION'S PURPOSE IN
MAKING THE PAYMENTS TO RESPONDENT AND OTHER STRIKERS WAS A BUSINESS
ONE, NOT PROCEEDING FROM ANY "'DETACHED AND DISINTERESTED GENEROSITY'"
NOR "'OUT OF AFFECTION, RESPECT, ADMIRATION, CHARITY OR LIKE IMPULSES,'
" DUBERSTEIN, ANTE, P. 285, BUT PROCEEDING, RATHER, FROM THE UNION'S
BUSINESS PURPOSE TO OBVIATE THE SUPPOSED OPPRESSION OF THE LOCAL
WELFARE RESTRICTIONS UPON THE STRIKERS, AND THEREBY MORE EFFECTIVELY TO
PRESERVE AND CONTINUE THE STRIKE.  IT CORROBORATES, I THINK
UNMISTAKABLY, THE UNION'S BUSINESS PURPOSE IN PAYING THE STRIKE
BENEFITS, AND SHOWS THAT NO GENUINE CHARITABLE OR DONATIVE INTENT WAS
INVOLVED. 

FOR THESE REASONS I WOULD REVERSE THE JUDGMENT OF THE COURT OF
APPEALS AND HOLD THAT THE PAYMENTS IN QUESTION WERE NOT "GIFTS" BUT
WERE "INCOME" AND TAXABLE AS A MATTER OF LAW. 

FN1  SECTION 102(A) PROVIDES:  "GROSS INCOME DOES NOT INCLUDE THE
VALUE OF PROPERTY ACQUIRED BY GIFT, BEQUEST, DEVISE, OR INHERITANCE." 
26 U.S.C. SEC. 102(A). 

FN2  ALTHOUGH THE PLURALITY OPINION APPARENTLY CONSIDERS IT
UNNECESSARY TO DECIDE WHETHER THE STRIKE BENEFITS RECEIVED BY
RESPONDENT CONSTITUTE "INCOME," AND DEALS ONLY WITH THE QUESTION
WHETHER THEY WERE EXCLUDABLE "GIFTS," I THINK IT IS CLEAR THAT THOSE
PAYMENTS WERE "INCOME."  STRIKE BENEFITS CONSTITUTE REALIZED GAINS TO
THEIR RECIPIENTS, AS A PARTIAL SUBSTITUTE FOR LOST WAGES RATHER THAN
LOST CAPITAL, AND ARE MATERIALLY DIFFERENT IN NATURE FROM THE VARIOUS
CATEGORIES OF REALIZED GAINS WHICH HAVE BEEN TREATED AS NONTAXABLE
THROUGH ADMINISTRATIVE FIAT.  (SEE THE TREASURY RULINGS DETAILED IN MR.
JUSTICE FRANKFURTER'S CONCURRING OPINION.)  STRIKE BENEFITS ARE,
THEREFORE, WITHIN THE REACH OF THE "GROSS INCOME" PROVISION OF THE
CODE.  SEE COMMISSIONER V. GLENSHAW GLASS CO., 348 U.S. 426, 429-430. 

FN3  THE EVIDENCE SHOWS AN ADMINISTRATIVE LETTER WAS WRITTEN BY THE
INTERNATIONAL TO ITS LOCALS DESCRIBING THE NATURE AND PURPOSE OF ITS
STRIKE FUND AS FOLLOWS: 

"THE INTERNATIONAL UNION, UAW-CIO, HAS ALSO ESTABLISHED A STRIKE FUND
TO FURTHER ASSIST LOCAL UNIONS IN WINNING CURRENT STRIKES AND TO BUILD
A FUND TO PROTECT OUR MEMBERS IN ANY FUTURE STRIKES.  THE STRIKE FUND
OF THE INTERNATIONAL UNION, UAW-CIO, IS NOT LARGE ENOUGH TO PROVIDE
STRIKE ASSISTANCE ON THE BASIS OF RIGHT, AND IS NOT SUFFICIENT TO MEET
ALL OF THE NEEDS OF OUR MEMBERS DURING STRIKE PERIODS." 

FN4  WHILE THE COURT OF APPEALS EMPHASIZED RESPONDENT'S STATUS AS A
NONMEMBER WHEN HE BEGAN RECEIVING STRIKE BENEFITS FROM THE UNION, THE
PARTIES' STIPULATION NULLIFIES ANY POSSIBLE BASIS FOR DISTINGUISHING
BETWEEN MEMBERS AND NONMEMBERS IN DECIDING THE QUESTION BEFORE US, AND,
INDEED, THE COURT DOES NOT PURPORT TO REST ITS DECISION ON ANY SUCH
DISTINCTION. 

FN5  THAT VOLUNTARY PAYMENTS BY A UNION MAY BE AND OFTEN ARE MADE
WITH THE REQUISITE DONATIVE INTENT IS NOT TO BE DOUBTED.  THIS WAS
ILLUSTRATED BY THE TESTIMONY OF TWO UNION OFFICIALS AT THE TRIAL OF
THIS CASE.  THE SECRETARY-TREASURER TESTIFIED ABOUT EXPENDITURES FROM
THE UNION'S STRIKE FUND TO ASSIST IN EMERGENCIES CAUSED BY A TORNADO AT
FLINT, MICHIGAN, AND BY A FLOOD IN CONNECTICUT.   A REGIONAL OFFICER
TESTIFIED THAT THE UNION PURCHASED FURNITURE FOR A MEMBER WHOSE HOME
AND ITS FURNISHINGS HAD BURNED, VIEWING THAT ACTION, SOMEWHAT
DIFFERENTLY THAN THESE STRIKE BENEFITS, AS AN "OUTRIGHT DONATION" BY
THE UNION.  BUT PLAINLY SUCH WERE NOT THE GENEROUS AND CHARITABLE
IMPULSES THAT IMPELLED THE UNION TO PAY THE STRIKE BENEFITS TO
RESPONDENT AND OTHER STRIKERS TO SUSTAIN THEM WHILE THEY WAGED THE
UNION'S KOHLER STRIKE. 
..END :
















HOFFMAN V. BLASKI 363 U.S. 335 SULLIVAN V. BEHIMER 363 U.S. 335 


NO. 25.  ARGUED APRIL 19-20, 1960.  - DECIDED JUNE 13, 1960.* - 260 F.2D
317, 261 F.2D 467, AFFIRMED. 

*TOGETHER WITH NO. 26, SULLIVAN, CHIEF JUDGE, U.S. DISTRICT COURT, V.
BEHIMER ET AL., ARGUED APRIL 20, 1960, ALSO ON CERTIORARI TO THE SAME
COURT. 


UNDER 28 U.S.C. SEC. 1404(A), A FEDERAL DISTRICT COURT IN WHICH A
CIVIL ACTION HAS BEEN PROPERLY BROUGHT IS NOT EMPOWERED TO TRANSFER THE
ACTION ON THE MOTION OF THE DEFENDANT TO A DISTRICT IN WHICH THE
PLAINTIFF DID NOT HAVE A RIGHT TO BRING IT.  PP. 335-344. 

(A)  THE PHRASE "WHERE IT MIGHT HAVE BEEN BROUGHT" IN SEC. 1404(A)
CANNOT BE INTERPRETED TO MEAN "WHERE IT MAY NOW BE REBROUGHT, WITH
DEFENDANTS' CONSENT."  PP. 342-343. 

(B)  UNDER SEC. 1404(A), THE POWER OF A DISTRICT COURT TO TRANSFER AN
ACTION TO ANOTHER DISTRICT IS MADE TO DEPEND, NOT UPON THE WISH OR
WAIVER OF THE DEFENDANT, BUT UPON WHETHER THE TRANSFEREE DISTRICT IS
ONE IN WHICH THE ACTION "MIGHT HAVE BEEN BROUGHT" BY THE PLAINTIFF. 
PP. 343-344. 

HOFFMAN, U.S. DISTRICT JUDGE, V. BLASKI ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

TO RELIEVE AGAINST WHAT WAS APPARENTLY THOUGHT TO BE THE HARSHNESS OF
DISMISSAL, UNDER THE DOCTRINE OF FORUM NON CONVENIENS, OF AN ACTION
BROUGHT IN AN INCONVENIENT ONE OF TWO OR MORE LEGALLY AVAILABLE FORUMS,
GULF OIL CORP. V. GILBERT, 330 U.S. 501, AND CONCERNED BY THE REACH OF
BALTIMORE & OHIO R. CO. V. KEPNER, 314 U.S. 44, (FN1) CONGRESS, IN
1948, ENACTED 28 U.S.C.  SEC. 1404(A), WHICH PROVIDES: 

"SEC. 1404.  CHANGE OF VENUE. 

"(A)  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." 

THE INSTANT CASES PRESENT THE QUESTION WHETHER A DISTRICT COURT, IN
WHICH A CIVIL ACTION HAS BEEN PROPERLY BROUGHT, IS EMPOWERED BY SEC.
1404(A) TO TRANSFER THE ACTION, ON THE MOTION OF THE DEFENDANT, TO A
DISTRICT IN WHICH THE PLAINTIFF DID NOT HAVE A RIGHT TO BRING IT. 

NO. 25, BLASKI.  - RESPONDENTS, BLASKI AND OTHERS, RESIDENTS OF
ILLINOIS, BROUGHT THIS PATENT INFRINGEMENT ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AGAINST ONE HOWELL
AND A TEXAS CORPORATION CONTROLLED BY HIM, ALLEGING THAT THE DEFENDANTS
ARE RESIDENTS OF, AND MAINTAIN THEIR ONLY PLACE OF BUSINESS IN, THE
CITY OF DALLAS, IN THE NORTHERN DISTRICT OF TEXAS, WHERE THEY ARE
INFRINGING RESPONDENTS' PATENTS.  AFTER BEING SERVED WITH PROCESS AND
FILING THEIR ANSWER, THE DEFENDANTS MOVED, UNDER SEC. 1404(A), TO
TRANSFER THE ACTION TO THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS.  (FN2)  RESPONDENTS OBJECTED TO THE
TRANSFER ON THE GROUND THAT, INASMUCH AS THE DEFENDANTS DID NOT RESIDE,
MAINTAIN A PLACE OF BUSINESS, OR INFRINGE THE PATENTS IN, AND COULD NOT
HAVE BEEN SERVED WITH PROCESS IN, THE ILLINOIS DISTRICT, THE COURTS OF
THAT DISTRICT LACKED VENUE OVER THE ACTION (FN3) AND ABILITY TO COMMAND
JURISDICTION OVER THE DEFENDANTS; (FN4) THAT THEREFORE THAT DISTRICT
WAS NOT A FORUM IN WHICH THE RESPONDENTS HAD A RIGHT TO BRING THE
ACTION, AND, HENCE, THE COURT WAS WITHOUT POWER TO TRANSFER IT TO THAT
DISTRICT.  WITHOUT MENTIONING THAT OBJECTION OR THE QUESTION IT RAISED,
THE DISTRICT COURT FOUND THAT "THE MOTION SHOULD BE GRANTED FOR THE
CONVENIENCE OF THE PARTIES AND WITNESSES IN THE INTEREST OF JUSTICE,"
AND ORDERED THE CASE TRANSFERRED TO THE ILLINOIS DISTRICT.  THEREUPON,
RESPONDENTS MOVED IN THE FIFTH CIRCUIT FOR LEAVE TO FILE A PETITION FOR
A WRIT OF MANDAMUS DIRECTING THE VACATION OF THAT ORDER.  THAT COURT,
HOLDING THAT "THE PURPOSES FOR WHICH SEC. 1404(A) WAS ENACTED WOULD BE
UNDULY CIRCUMSCRIBED IF A TRANSFER COULD NOT BE MADE 'IN THE INTEREST
OF JUSTICE' TO A DISTRICT WHERE THE DEFENDANTS NOT ONLY WAIVE VENUE BUT
TO WHICH THEY SEEK THE TRANSFER," DENIED THE MOTION.  EX PARTE BLASKI,
245 F.2D 737, 738. 

UPON RECEIPT OF A CERTIFIED COPY OF THE PLEADINGS AND RECORD, THE
ILLINOIS DISTRICT COURT ASSIGNED THE ACTION TO JUDGE HOFFMAN'S
CALENDAR.  RESPONDENTS PROMPTLY MOVED FOR AN ORDER REMANDING THE ACTION
ON THE GROUND THAT THE TEXAS DISTRICT COURT DID NOT HAVE POWER TO MAKE
THE TRANSFER ORDER AND, HENCE, THE ILLINOIS DISTRICT COURT WAS NOT
THEREBY VESTED WITH JURISDICTION OF THE ACTION.  AFTER EXPRESSING HIS
VIEW THAT THE "WEIGHT OF REASON AND LOGIC" FAVORED "RETRANSFER OF THIS
CASE TO TEXAS," JUDGE HOFFMAN, WITH MISGIVINGS, DENIED THE MOTION. 
RESPONDENTS THEN FILED IN THE SEVENTH CIRCUIT A PETITION FOR A WRIT OF
MANDAMUS DIRECTING JUDGE HOFFMAN TO REVERSE HIS ORDER.  AFTER HEARING
AND REHEARING, THE SEVENTH CIRCUIT, HOLDING THAT "WHEN CONGRESS
PROVIDED IN SEC. 1404(A) FOR TRANSFER (OF A CIVIL ACTION) TO A DISTRICT
'WHERE IT MIGHT HAVE BEEN BROUGHT,' IT IS HARDLY OPEN TO DOUBT BUT THAT
IT REFERRED TO A DISTRICT WHERE THE PLAINTIFF  ...  HAD A RIGHT TO
BRING THE CASE," AND THAT RESPONDENTS DID NOT HAVE A RIGHT TO BRING
THIS ACTION IN THE ILLINOIS DISTRICT, GRANTED THE WRIT, ONE JUDGE
DISSENTING.  260 F.2D 317. 

NO. 26, BEHIMER.  - DIVERSITY OF CITIZENSHIP THEN EXISTING,
RESPONDENTS, BEHIMER AND ROBERTS, RESIDENTS OF ILLINOIS AND NEW YORK,
RESPECTIVELY, BROUGHT THIS STOCKHOLDERS' DERIVATIVE ACTION, AS MINORITY
STOCKHOLDERS OF UTAH OIL REFINING CORPORATION, A UTAH CORPORATION, ON
BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED, IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AGAINST
STANDARD OIL COMPANY AND STANDARD OIL FOUNDATION, INC., INDIANA
CORPORATIONS BUT LICENSED TO DO AND DOING BUSINESS IN THE NORTHERN
DISTRICT OF ILLINOIS, FOR DAMAGES CLAIMED TO HAVE BEEN SUSTAINED
THROUGH THE ALLEGED ILLEGAL ACQUISITION BY DEFENDANTS OF THE ASSETS OF
THE UTAH CORPORATION AT AN INADEQUATE PRICE. 

AFTER BEING SERVED WITH PROCESS AND FILING THEIR ANSWER, THE
DEFENDANTS MOVED, UNDER SEC. 1404(A), TO TRANSFER THE ACTION TO THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH.  (FN5)
RESPONDENTS OBJECTED TO THE TRANSFER ON THE GROUND THAT, INASMUCH AS
THE DEFENDANTS WERE NOT INCORPORATED IN OR LICENSED TO DO OR DOING
BUSINESS IN, AND COULD NOT BE SERVED WITH PROCESS IN, THE DISTRICT OF
UTAH, THE COURTS OF THAT DISTRICT LACKED VENUE OVER THE ACTION (FN6)
AND ABILITY TO COMMAND JURISDICTION OVER THE DEFENDANTS; (FN7) THAT
THEREFORE THAT DISTRICT WAS NOT A FORUM IN WHICH THE RESPONDENTS HAD A
RIGHT TO BRING THE ACTION, AND, HENCE, THE COURT WAS WITHOUT POWER TO
TRANSFER IT TO THAT DISTRICT.  WITHOUT MENTIONING THE QUESTION RAISED
BY THAT OBJECTION, THE COURT FOUND THAT THE PROPOSED TRANSFER WOULD BE
"FOR THE CONVENIENCE OF THE PARTIES AND WITNESSES AND IN THE INTEREST
OF JUSTICE," AND ORDERED THE CASE TRANSFERRED TO THE DISTRICT OF UTAH. 

RESPONDENTS THEN FILED IN THE SEVENTH CIRCUIT A PETITION FOR A WRIT
OF MANDAMUS DIRECTING THE DISTRICT COURT TO REVERSE ITS ORDER.  AFTER
HEARING, THE SEVENTH CIRCUIT, FOLLOWING ITS DECISION IN BLASKI V.
HOFFMAN, SUPRA, GRANTED THE WRIT.  261 F.2D 467. 

TO SETTLE THE CONFLICT THAT HAS ARISEN AMONG THE CIRCUITS RESPECTING
THE PROPER INTERPRETATION AND APPLICATION OF SEC. 1404(A), (FN8) WE
GRANTED CERTIORARI.  359 U.S. 904; 361 U.S. 809. 

WITHOUT SACRIFICE OR SLIGHT OF ANY TENABLE POSITION, THE PARTIES HAVE
IN THIS COURT COMMENDABLY NARROWED THEIR CONTENTIONS TO THE SCOPE OF
THE ONLY RELEVANT INQUIRY.  THE POINTS OF CONTENTION MAY BE SHARPENED
BY FIRST OBSERVING WHAT IS NOT IN CONTEST.  DISCRETION OF THE DISTRICT
JUDGES CONCERNED IS NOT INVOLVED.  PROPRIETY OF THE REMEDY OF MANDAMUS
IS NOT ASSAILED.  NO CLAIM IS MADE HERE THAT THE ORDER OF THE FIFTH
CIRCUIT DENYING THE MOTION OF RESPONDENTS IN THE BLASKI CASE FOR LEAVE
TO FILE A PETITION FOR WRIT OF MANDAMUS, 245 F.2D 737, PRECLUDED JUDGE
HOFFMAN OR THE SEVENTH CIRCUIT FROM REMANDING THAT CASE.  (FN9)
PETITIONERS CONCEDE THAT THESE ACTIONS WERE PROPERLY BROUGHT IN THE
RESPECTIVE TRANSFEROR FORUMS; THAT STATUTORY VENUE DID NOT EXIST OVER
EITHER OF THESE ACTIONS IN THE RESPECTIVE TRANSFEREE DISTRICTS, (FN10)
AND THAT THE RESPECTIVE DEFENDANTS WERE NOT WITHIN THE REACH OF THE
PROCESS OF THE RESPECTIVE TRANSFEREE COURTS.  (FN11)  THEY CONCEDE,
TOO, THAT SEC. 1404(A), BEING "NOT UNLIMITED," "MAY BE UTILIZED ONLY TO
DIRECT AN ACTION TO ANY OTHER DISTRICT OR DIVISION 'WHERE IT MIGHT HAVE
BEEN BROUGHT,'" AND THAT, LIKE THE SUPERSEDED DOCTRINE OF FORUM NON
CONVENIENS, GULF OIL CORP. V. GILBERT, 330 U.S. 501, 507, THE STATUTE
REQUIRES "AN ALTERNATIVE FORUM IN WHICH PLAINTIFF MIGHT PROCEED." 

PETITIONERS'"THESIS" AND SOLE CLAIM IS THAT SEC. 1404(A), BEING
REMEDIAL, EX PARTE COLLETT, 337 U.S. 55, 71, SHOULD BE BROADLY
CONSTRUED, AND, WHEN SO CONSTRUED, THE PHRASE "WHERE IT MIGHT HAVE BEEN
BROUGHT" SHOULD BE HELD TO RELATE NOT ONLY TO THE TIME OF THE BRINGING
OF THE ACTION, BUT ALSO TO THE TIME OF THE TRANSFER; AND THAT "IF AT
SUCH TIME THE TRANSFEREE FORUM HAS THE POWER TO ADJUDICATE THE ISSUES
OF THE ACTION, IT IS A FORUM IN WHICH THE ACTION MIGHT THEN HAVE BEEN
BROUGHT."  (FN12)  THEY ARGUE THAT IN THE INTERIM BETWEEN THE BRINGING
OF THE ACTION AND THE FILING OF A MOTION TO TRANSFER IT, THE DEFENDANTS
MAY MOVE THEIR RESIDENCE TO, OR, IF CORPORATIONS, MAY BEGIN THE
TRANSACTION OF BUSINESS IN, SOME OTHER DISTRICT, AND, IF SUCH IS DONE,
THE PHRASE "WHERE IT MIGHT HAVE BEEN BROUGHT" SHOULD BE CONSTRUED TO
EMPOWER THE DISTRICT COURT TO TRANSFER THE ACTION, ON MOTION OF THE
DEFENDANTS, TO SUCH OTHER DISTRICT; AND THAT, SIMILARLY, IF, AS HERE,
THE DEFENDANTS MOVE TO TRANSFER THE ACTION TO SOME OTHER DISTRICT AND
CONSENT TO SUBMIT TO THE JURISDICTION OF SUCH OTHER DISTRICT, THE
LATTER DISTRICT SHOULD BE HELD ONE "IN WHICH THE ACTION MIGHT THEN HAVE
BEEN BROUGHT." 

WE DO NOT AGREE.  WE DO NOT THINK THE SEC. 1404(A) PHRASE "WHERE IT
MIGHT HAVE BEEN BROUGHT" CAN BE INTERPRETED TO MEAN, AS PETITIONERS'
THEORY WOULD REQUIRE, "WHERE IT MAY NOW BE REBROUGHT, WITH DEFENDANTS'
CONSENT."  THIS COURT HAS SAID, IN A DIFFERENT CONTEXT, THAT SEC.
1404(A) IS "UNAMBIGUOUS, DIRECT AND CLEAR," EX PARTE COLLETT, 337 U.S.,
AT 58, AND THAT "THE UNEQUIVOCAL WORDS OF SEC. 1404(A) AND THE
LEGISLATIVE HISTORY  ...  ESTABLISH THAT CONGRESS INDEED MEANT WHAT IT
SAID."  UNITED STATES V. NATIONAL CITY LINES, INC., 337 U.S. 78, 84. 
LIKE THE SEVENTH CIRCUIT, 260 F.2D, AT 322, WE THINK THE DISSENTING
OPINION OF JUDGES HASTIE AND MCLAUGHLIN IN PARAMOUNT PICTURES, INC., V.
RODNEY, 186 F.2D 111 (C.A. 3D CIR.), CORRECTLY ANSWERED THIS
CONTENTION: 

"BUT WE DO NOT SEE HOW THE CONDUCT OF A DEFENDANT AFTER SUIT HAS BEEN
INSTITUTED CAN ADD TO THE FORUMS WHERE 'IT MIGHT HAVE BEEN BROUGHT.' 
IN THE NORMAL MEANING OF WORDS THIS LANGUAGE OF SECTION 1404(A) DIRECTS
THE ATTENTION OF THE JUDGE WHO IS CONSIDERING A TRANSFER TO THE
SITUATION WHICH EXISTED WHEN SUIT WAS INSTITUTED." 

IT IS NOT TO BE DOUBTED THAT THE TRANSFEREE COURTS, LIKE EVERY
DISTRICT COURT, HAD JURISDICTION TO ENTERTAIN ACTIONS OF THE CHARACTER
INVOLVED, BUT IT IS OBVIOUS THAT THEY DID NOT ACQUIRE JURISDICTION OVER
THESE PARTICULAR ACTIONS WHEN THEY WERE BROUGHT IN THE TRANSFEROR
COURTS.  THE TRANSFEREE COURTS COULD HAVE ACQUIRED JURISDICTION OVER
THESE ACTIONS ONLY IF PROPERLY BROUGHT IN THOSE COURTS, OR IF VALIDLY
TRANSFERRED THERETO UNDER SEC. 1404(A).  OF COURSE, VENUE, LIKE
JURISDICTION OVER THE PERSON, MAY BE WAIVED.  A DEFENDANT, PROPERLY
SERVED WITH PROCESS BY A COURT HAVING SUBJECT MATTER JURISDICTION,
WAIVES VENUE BY FAILING SEASONABLY TO ASSERT IT, OR EVEN SIMPLY BY
MAKING DEFAULT.  COMMERCIAL INS. CO. V. STONE CO., 278 U.S. 177, 179
180; NEIRBO CO. V. BETHLEHEM SHIPBUILDING CORP., LTD., 308 U.S. 165. 
BUT THE POWER OF A DISTRICT COURT UNDER SEC. 1404(A) TO TRANSFER AN
ACTION TO ANOTHER DISTRICT IS MADE TO DEPEND NOT UPON THE WISH OR
WAIVER OF THE DEFENDANT BUT, RATHER, UPON WHETHER THE TRANSFEREE
DISTRICT WAS ONE IN WHICH THE ACTION "MIGHT HAVE BEEN BROUGHT" BY THE
PLAINTIFF. 

THE THESIS URGED BY PETITIONERS WOULD NOT ONLY DO VIOLENCE TO THE
PLAIN WORDS OF SEC. 1404(A), BUT WOULD ALSO INJECT GROSS
DISCRIMINATION.  THAT THESIS, IF ADOPTED, WOULD EMPOWER A DISTRICT
COURT, UPON A FINDING OF CONVENIENCE, TO TRANSFER AN ACTION TO ANY
DISTRICT DESIRED BY THE DEFENDANTS AND IN WHICH THEY WERE WILLING TO
WAIVE THEIR STATUTORY DEFENSES AS TO VENUE AND JURISDICTION OVER THEIR
PERSONS, REGARDLESS OF THE FACT THAT SUCH TRANSFEREE DISTRICT WAS NOT
ONE IN WHICH THE ACTION "MIGHT HAVE BEEN BROUGHT" BY THE PLAINTIFF. 
CONVERSELY, THAT THESIS WOULD NOT PERMIT THE COURT, UPON MOTION OF THE
PLAINTIFFS AND A LIKE SHOWING OF CONVENIENCE, TO TRANSFER THE ACTION TO
THE SAME DISTRICT, WITHOUT THE CONSENT AND WAIVER OF VENUE AND PERSONAL
JURISDICTION DEFENSES BY THE DEFENDANTS.  NOTHING IN SEC. 1404(A), OR
IN ITS LEGISLATIVE HISTORY, SUGGESTS SUCH A UNILATERAL OBJECTIVE AND WE
SHOULD NOT, UNDER THE GUISE OF INTERPRETATION, ASCRIBE TO CONGRESS ANY
SUCH DISCRIMINATORY PURPOSE. 

WE AGREE WITH THE SEVENTH CIRCUIT THAT: 

"IF WHEN A SUIT IS COMMENCED, PLAINTIFF HAS A RIGHT TO SUE IN THAT
DISTRICT, INDEPENDENTLY OF THE WISHES OF DEFENDANT, IT IS A DISTRICT
'WHERE THE ACTION MIGHT HAVE BEEN BROUGHT.'  IF HE DOES NOT HAVE THAT
RIGHT, INDEPENDENTLY OF THE WISHES OF DEFENDANT, IT IS NOT A DISTRICT
'WHERE IT MIGHT HAVE BEEN BROUGHT,' AND IT IS IMMATERIAL THAT THE
DEFENDANT SUBSEQUENTLY MAKES HIMSELF SUBJECT, BY CONSENT, WAIVER OF
VENUE AND PERSONAL JURISDICTION DEFENSES OR OTHERWISE, TO THE
JURISDICTION OF SOME OTHER FORUM."  260 F.2D, AT 321 AND 261 F.2D, AT
469. 

INASMUCH AS THE RESPONDENTS (PLAINTIFFS) DID NOT HAVE A RIGHT TO
BRING THESE ACTIONS IN THE RESPECTIVE TRANSFEREE DISTRICTS, IT FOLLOWS
THAT THE JUDGMENTS OF THE COURT OF APPEALS WERE CORRECT AND MUST BE
AFFIRMED. 

FN1  SEE THE REVISER'S NOTES FOLLOWING 28 U.S.C. SEC. 1404. 

FN2  THE ASSERTED BASIS OF THE MOTION WAS THAT TRIAL OF THE ACTION IN
THE ILLINOIS DISTRICT COURT WOULD BE MORE CONVENIENT TO THE PARTIES AND
WITNESSES AND IN THE INTEREST OF JUSTICE BECAUSE SEVERAL ACTIONS
INVOLVING THE VALIDITY OF THESE PATENTS WERE THEN PENDING IN THAT
COURT, AND THAT PRETRIAL AND DISCOVERY STEPS TAKEN IN THOSE ACTIONS HAD
DEVELOPED A SUBSTANTIAL AMOUNT OF EVIDENCE THAT WOULD BE RELEVANT AND
USEFUL IN THIS ACTION.    DEFENDANTS ALSO STATED IN THE MOTION THAT, IF
AND WHEN THE CASE BE SO TRANSFERRED, THEY WOULD WAIVE ALL OBJECTIONS TO
THE VENUE OF THE ILLINOIS DISTRICT COURT OVER THE ACTION AND WOULD
ENTER THEIR APPEARANCE IN THE ACTION IN THAT COURT. 

FN3  SEE 28 U.S.C. SEC. 1400(B), QUOTED IN NOTE 10, INFRA. 

FN4  SEE RULE 4(F) OF THE FED. RULES CIV. PROC., QUOTED IN NOTE 11,
INFRA. 

FN5  THE MOTION ASSERTED, AND THE COURT FOUND, THAT TRIAL OF THE
ACTION IN THE DISTRICT OF UTAH WOULD BE MORE CONVENIENT TO THE PARTIES
AND WITNESSES FOR THE REASONS, AMONG OTHERS, THAT ALL OF THE OFFICERS
AND DIRECTORS, AND A MAJORITY OF THE MINORITY STOCKHOLDERS, OF THE UTAH
CORPORATION RESIDE IN THAT DISTRICT; THAT THE BOOKS AND RECORDS OF THE
CORPORATION ARE LOCATED IN THAT DISTRICT; THAT THE SUBSTANTIVE LAW OF
UTAH GOVERNS THE ACTION, AND THAT THE CALENDAR OF THE UTAH COURT WAS
LESS CONGESTED THAN THE ILLINOIS ONE. 

AS PART OF THEIR MOTION, DEFENDANTS STATED THAT, IN THE EVENT OF THE
TRANSFER OF THE ACTION AS REQUESTED, THEY WOULD WAIVE ALL OBJECTIONS TO
THE VENUE OF THE UTAH COURT AND ENTER APPEARANCES IN THE ACTION IN THAT
COURT. 

FN6  SEE 28 U.S.C. SEC. 1391(C), QUOTED IN NOTE 10, INFRA. 

FN7  SEE RULE 4(F) OF THE FED. RULES CIV. PROC., QUOTED IN NOTE 11,
INFRA. 

FN8  THE DECISIONS OF THE CIRCUITS ARE IN GREAT CONFLICT AND
CONFUSION.  THE SECOND CIRCUIT HAS HELD ONE WAY ON A PLAINTIFF'S MOTION
AND THE OTHER ON A DEFENDANT'S MOTION.  COMPARE FOSTER-MILBURN CO. V.
KNIGHT, 181 F.2D 949, 952-953, WITH ANTHONY V. KAUFMAN, 193 F.2D 85,
AND TORRES V. WALSH, 221 F.2D 319.  THE FIFTH CIRCUIT, TOO, HAS HELD
BOTH WAYS.  COMPARE BLACKMAR V. GUERRE, 190 F.2D 427, 429, WITH EX
PARTE BLASKI, 245 F.2D 737.  THE NINTH CIRCUIT HAS HELD A DISTRICT
COURT TO BE WITHOUT POWER TO TRANSFER AN ACTION, ON PLAINTIFF'S MOTION,
TO A DISTRICT IN WHICH PLAINTIFF DID NOT HAVE A LEGAL RIGHT TO BRING IT
ORIGINALLY.  SHAPIRO V. BONANZA HOTEL CO., 185 F.2D 777, 780.  THE
THIRD CIRCUIT HAS HELD, TWO OF THE FIVE JUDGES DISSENTING, THAT A
DISTRICT COURT HAS POWER TO TRANSFER AN ACTION, ON DEFENDANT'S MOTION,
TO A DISTRICT IN WHICH THE PLAINTIFF DID NOT HAVE A LEGAL RIGHT TO
BRING IT.  PARAMOUNT PICTURES, INC., V. RODNEY, 186 F.2D 111.  THE
FIRST CIRCUIT HAS UPHELD TRANSFER, ON DEFENDANT'S MOTION, TO A DISTRICT
IN WHICH VENUE EXISTED BUT WHERE PROCESS COULD NOT BE SERVED ON
DEFENDANTS (BUT DEFENDANTS HAD BEEN SERVED IN THE TRANSFEROR
DISTRICT).  IN RE JOSEPHSON, 218 F.2D 174. 

FN9  THAT ORDER DID NOT PURPORT TO DETERMINE THE JURISDICTION OF THE
TRANSFEREE COURT AND THEREFORE DID NOT PRECLUDE JUDGE HOFFMAN OF POWER
TO DETERMINE HIS OWN JURISDICTION, NOR DID IT PRECLUDE THE POWER OF THE
SEVENTH CIRCUIT TO REVIEW HIS ACTION.  FETTIG CANNING CO. V. STECKLER,
188 F.2D 715 (C.A. 7TH CIR.); WILSON V. KANSAS CITY SOUTHERN R. CO.,
101 F. SUPP.  56 (D.C.W.D. MO.); UNITED STATES V. REID, 104 F. SUPP.
260, 266 (D.C.E.D. ARK.).  SEVERAL REASONS WHY PRINCIPLES OF RES
JUDICATA DO NOT APPLY MAY BE STATED IN A FEW SENTENCES.  THE ORDERS OF
THE TEXAS AND ILLINOIS DISTRICT COURTS ON THE RESPECTIVE MOTIONS TO
TRANSFER AND TO REMAND, LIKE THE ORDERS OF THE FIFTH AND SEVENTH
CIRCUITS ON THE RESPECTIVE PETITIONS FOR MANDAMUS, WERE (1)
INTERLOCUTORY, (2) NOT UPON THE MERITS, AND (3) WERE ENTERED IN THE
SAME CASE BY COURTS OF COORDINATE JURISDICTION.  HERE THE SOLE BASIS OF
THE RIGHT OF THE FIFTH CIRCUIT TO ENTERTAIN THE PETITION FOR A WRIT OF
MANDAMUS WAS TO PROTECT ITS APPELLATE JURISDICTION, 28 U.S.C. SEC.
1651(A); MAGNETIC ENGINEERING & MFG. CO. V. DINGS MFG. CO., 178 F.2D
866, 869-870 (C.A.2D CIR.); FOSTER-MILBURN CO. V. KNIGHT, 181 F.2D 949,
951 (C.A.2D CIR.); IN RE JOSEPHSON, 218 F.2D 174, 177 (C.A. 1ST CIR.);
TORRES V. WALSH, 221 F.2D 319, 321 (C.A.2D CIR.) AND, BY DENYING LEAVE
TO FILE THE PETITION, IT FORSOOK SUCH RIGHT, BUT IT DID NOT THEREBY
DETERMINE THAT THE ILLINOIS DISTRICT COURT HAD JURISDICTION OF THE
ACTION.  THE QUESTION OF THAT COURT'S JURISDICTION STILL REMAINED
SUBJECT TO ATTACK AS OF RIGHT ON APPEAL TO THE SEVENTH CIRCUIT FROM ANY
FINAL JUDGMENT IN THE ACTION.  WHEN, THEREFORE, JURISDICTION OF THE
DISTRICT COURT WAS ASSAILED IN THE SEVENTH CIRCUIT, BY THE PETITION FOR
MANDAMUS, THAT COURT SURELY HAD POWER TO DETERMINE WHETHER IT WOULD
HOLD, ON SUCH AN APPEAL, THAT THE ILLINOIS DISTRICT COURT DID OR DID
NOT HAVE JURISDICTION OF THE ACTION AND, IF NOT, TO SAY SO AND THUS
AVOID THE DELAYS AND EXPENSE OF A FUTILE TRIAL. 

FN10  VENUE OVER PATENT INFRINGEMENT ACTIONS IS PRESCRIBED BY 28
U.S.C. SEC. 1400(B), WHICH PROVIDES: 

"(B)  ANY CIVIL ACTION FOR PATENT INFRINGEMENT MAY BE BROUGHT IN THE
JUDICIAL DISTRICT WHERE THE DEFENDANT RESIDES, OR WHERE THE DEFENDANT
HAS COMMITTED ACTS OF INFRINGEMENT AND HAS A REGULAR AND ESTABLISHED
PLACE OF BUSINESS." 

SEE STONITE PROD.  CO. V. MELVIN LLOYD CO., 315 U.S. 561; FOURCO
GLASS CO. V. TRANSMIRRA PRODUCTS CORP., 353 U.S. 222. 

GENERAL VENUE OVER ACTIONS AGAINST CORPORATIONS IS PRESCRIBED BY 28
U.S.C. SEC. 1391(C), WHICH PROVIDES: 

"(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." 

FN11  GENERAL PROVISIONS RESPECTING SERVICE OF THE PROCESS OF FEDERAL
COURTS ARE PRESCRIBED BY RULE 4(F) OF THE FED. RULES CIV. PROC., WHICH
PROVIDES: 

"(F)  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." 

FN12  A SIMILAR VIEW WAS EXPRESSED IN PARAMOUNT PICTURES, INC., V.
RODNEY, 186 F.2D 111 (C.A. 3D CIR.).  THE COURT THERE THOUGHT THAT THE
SEC. 1404(A) PHRASE "MIGHT HAVE BEEN BROUGHT" MEANS "COULD NOW BE
BROUGHT."  ID., AT 114. 

MR. JUSTICE STEWART, CONCURRING IN NO. 25. 

TWO COURTS OF APPEALS DISAGREED ABOUT THE MEANING OF A FEDERAL LAW,
AS CONSCIENTIOUS FEDERAL COURTS SOMETIMES DO.  FROM THE POINT OF VIEW
OF EFFICIENT JUDICIAL ADMINISTRATION THE RESULTING HISTORY OF THIS
LITIGATION IS NO SUBJECT FOR APPLAUSE.  BUT, AS THE COURT POINTS OUT,
NO CLAIM WAS MADE HERE THAT THE DECISION OF THE FIFTH CIRCUIT PRECLUDED
JUDGE HOFFMAN OR THE SEVENTH CIRCUIT FROM REMANDING THE CASE, AND ON
THE MERITS OF THAT QUESTION I AGREE WITH THE COURT THAT PRINCIPLES OF
RES JUDICATA WERE INAPPLICABLE.  IN ANY EVENT, THE CONFLICT BETWEEN THE
CIRCUITS IS NOW RESOLVED, AND WHAT HAPPENED HERE WILL NOT HAPPEN
AGAIN. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
BRENNAN JOIN, DISSENTING.* 

*THIS OPINION APPLIES ONLY TO NO. 25, HOFFMAN V. BLASKI.  FOR OPINION
OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE HARLAN AND MR.
JUSTICE BRENNAN, IN NO. 26, SULLIVAN V. BEHIMER, SEE POST, P. 351. 

MY SPECIAL DISAGREEMENT WITH THE COURT IN THIS CASE CONCERNS A MATTER
OF JUDICIAL ADMINISTRATION ARISING OUT OF THE FACT THAT AFTER THE
QUESTION ON THE MERITS HAD BEEN CONSIDERED BY THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT, THE SAME QUESTION BETWEEN THE SAME PARTIES WAS LATER
INDEPENDENTLY AGAIN ADJUDICATED BY THE COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.  I CANNOT JOIN THE COURT'S APPROVAL OF THE RIGHT OF THE
SEVENTH CIRCUIT TO MAKE SUCH A RE-EXAMINATION.  IT IS TRUE THAT IN ITS
OPINION IN THIS CASE AND NO. 26, SULLIVAN V. BEHIMER, DECIDED TODAY,
THE COURT SETTLES THE QUESTION OVER WHICH THE TWO COURTS OF APPEALS
DISAGREED, SO THAT IT SHOULD NOT RECUR.  THIS IS NOT, HOWEVER, AN
ISOLATED CASE.  A GENERAL PRINCIPLE OF JUDICIAL ADMINISTRATION IN THE
FEDERAL COURTS IS AT STAKE.   IN ADDITION, WHILE THE COURT TODAY
SETTLES ONE PROBLEM ARISING IN THE APPLICATION OF SEC. 1404(A), OTHER
QUESTIONS INVOLVING THAT SECTION MAY READILY GIVE RISE TO CONFLICTING
VIEWS AMONG THE ELEVEN COURTS OF APPEALS.  UNDER THE COURT'S OPINION,
FOR EXAMPLE, TRANSFER ALWAYS DEPENDS UPON THE MEANING OF THE FEDERAL
VENUE STATUTES, AND UPON THE JURISDICTION OF THE TRANSFEREE COURT OVER
THE PERSON OF THE DEFENDANT, WHICH MAY BE A PROBLEM OF CONSTITUTIONAL
DIMENSIONS, AND THERE IS OBVIOUSLY A SUBSTANTIAL OPPORTUNITY FOR
CONFLICT BETWEEN THE COURTS OF APPEALS OVER THOSE MATTERS.  WE OUGHT TO
FORESTALL IN OTHER SITUATIONS OF POTENTIAL CONTROVERSY THE KIND OF
JUDICIAL UNSEEMLINESS WHICH THIS CASE DISCLOSES. 

PLAINTIFFS BROUGHT THIS ACTION FOR PATENT INFRINGEMENT IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS.  DEFENDANTS
MOVED PURSUANT TO 28 U.S.C. SEC. 1404(A) TO HAVE IT TRANSFERRED TO THE
NORTHERN DISTRICT OF ILLINOIS.  FINDING TRANSFER TO BE "FOR THE
CONVENIENCE OF PARTIES AND WITNESSES, IN THE INTEREST OF JUSTICE," THE
TEXAS DISTRICT COURT GRANTED THE MOTION AND TRANSFERRED THE ACTION TO
ILLINOIS.  PLAINTIFFS SOUGHT A WRIT OF MANDAMUS IN THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT TO REQUIRE THE TEXAS DISTRICT COURT TO SET ASIDE
THE TRANSFER.  IN PLAINTIFFS' VIEW THE NORTHERN DISTRICT OF ILLINOIS
WAS NOT A PLACE WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT," AND THUS
THE TEXAS DISTRICT COURT HAD NO POWER TO TRANSFER THE ACTION THERE
UNDER SEC. 1404(A).  THE FIFTH CIRCUIT FULLY EXAMINED THE MERITS OF
THIS CLAIM AND REJECTED IT, HOLDING THAT IN THE CIRCUMSTANCES BEFORE
THE COURT THE NORTHERN DISTRICT OF ILLINOIS WAS A JURISDICTION WHERE
THE ACTION "MIGHT HAVE BEEN BROUGHT."  LEAVE TO FILE A MANDAMUS
PETITION WAS THEREFORE DENIED, AND THE ACTION WAS DULY TRANSFERRED. 
245 F.2D 737. 

UPON THE ASSIGNMENT OF THE ACTION TO THE CALENDAR OF THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, PLAINTIFFS
MOVED THAT COURT TO DISREGARD THE EXPLICIT DECISION OF ANOTHER DISTRICT
COURT IN THE SAME CASE, SUSTAINED BY THE APPROPRIATE COURT OF APPEALS,
AND TO SEND THE CASE BACK TO TEXAS.  PLAINTIFFS ADVANCED PRECISELY THE
CLAIM ALREADY REJECTED BY THE FIFTH CIRCUIT, NAMELY, THAT THE NORTHERN
DISTRICT OF ILLINOIS WAS NOT A PLACE WHERE THE ACTION "MIGHT HAVE BEEN
BROUGHT" WITHIN THE PROPER MEANING OF SEC. 1404(A).  TRANSFER HAD, IN
THEIR VIEW, ERRONEOUSLY BEEN ORDERED BY THE TEXAS DISTRICT COURT AND
THE POWER TO TRANSFER ERRONEOUSLY APPROVED BY THE FIFTH CIRCUIT. 
PLAINTIFFS' APPLICATION WAS DENIED BY THE ILLINOIS DISTRICT COURT. 
STILL NOT ACCEPTING THE DECISION AGAINST THEM, PLAINTIFFS AGAIN SOUGHT
AN APPELLATE REMEDY BY WAY OF MANDAMUS, THIS TIME IN THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT.  INITIALLY, MANDAMUS WAS DENIED.  ON
REHEARING, HOWEVER, THE SEVENTH CIRCUIT HELD THAT THE PRIOR DECISION OF
THE FIFTH CIRCUIT WAS WRONG.  IT HELD THAT SEC. 1404(A) DID NOT
AUTHORIZE TRANSFER TO ILLINOIS, AND IT ORDERED THE ACTION "REMANDED" TO
THE TEXAS DISTRICT COURT WITHIN THE FIFTH CIRCUIT, FROM WHENCE IT HAD
COME, TO GO FORWARD THERE.  260 F.2D 317.  THAT "REMAND" IS THE ORDER
WHICH IS HERE ON CERTIORARI.  359 U.S. 904. 

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT HAS THUS REFUSED TO
PERMIT AN ILLINOIS DISTRICT COURT TO ENTERTAIN AN ACTION TRANSFERRED TO
IT WITH THE APPROVAL, AFTER FULL CONSIDERATION OF THE PROBLEM INVOLVED,
OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.  THE SEVENTH CIRCUIT
CONSIDERED NO EVIDENCE NOT BEFORE THE FIFTH CIRCUIT IN SO DECIDING.  IT
CONSIDERED PRECISELY THE SAME ISSUE AND REACHED A CONTRARY LEGAL
CONCLUSION.  THIS WAS AFTER EXPLICIT PRIOR ADJUDICATION OF THE QUESTION
AT THE SAME LEVEL OF THE FEDERAL SYSTEM IN THE SAME CASE AND BETWEEN
THE SAME PARTIES.  BECAUSE THE QUESTION INVOLVED IS THE TRANSFERABILITY
OF THE ACTION, THE CONSEQUENCE OF THE SEVENTH CIRCUIT'S DISREGARD OF
THE FIFTH CIRCUIT'S PRIOR DECISION IS NOT ONLY THAT A QUESTION ONCE
DECIDED HAS BEEN REOPENED, WITH ALL THE WASTED MOTION, DELAY AND
EXPENSE WHICH THAT NORMALLY ENTAILS.  UNLESS AND UNTIL THIS COURT ACTS,
THE LITIGANTS HAVE NO FORUM IN WHICH TRIAL MAY GO FORWARD.  EACH COURT
OF APPEALS INVOLVED HAS REFUSED TO HAVE THE DISTRICT COURT IN ITS
CIRCUIT HEAR THE CASE AND HAS SENT IT TO A DISTRICT COURT IN THE
OTHER. 

THIS IS THE JUDICIAL CONDUCT THE COURT NOW APPROVES.  THE COURT DOES
NOT SUGGEST THAT THE COURT OF APPEALS FOR THE FIFTH CIRCUIT WAS
POWERLESS, WAS WITHOUT JURISDICTION, TO REVIEW, AS IT DID, THE QUESTION
OF THE APPLICABILITY OF SEC. 1404(A) TO THIS CASE.  THE OCCASION FOR
THE FIFTH CIRCUIT'S REVIEW BY WAY OF MANDAMUS MAY HAVE BEEN, AS THE
COURT SUGGESTS, "TO PROTECT ITS APPELLATE JURISDICTION," BUT THERE CAN
BE NO QUESTION THAT THE FIFTH CIRCUIT UNDERTOOK TO AND DID RESOLVE ON
ITS MERITS THE CONTROVERSY BETWEEN THE PARTIES REGARDING THE MEANING OF
SEC. 1404(A).  YET THE COURT DECIDES THAT THE REVIEW IN THE FIFTH
CIRCUIT WAS SO MUCH WASTED MOTION, PROPERLY IGNORED BY THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT IN ARRIVING AT A CONTRARY RESULT.  THE
CASE IS TREATED JUST AS IF THE FIFTH CIRCUIT HAD NEVER CONSIDERED THE
QUESTIONS INVOLVED IN IT.  I AM AT A LOSS TO APPRECIATE WHY ALL THE
CONSIDERATIONS BEARING ON THE GOOD ADMINISTRATION OF JUSTICE WHICH
UNDERLIE THE TECHNICAL DOCTRINE OF RES JUDICATA DID NOT APPLY HERE TO
REQUIRE THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT TO DEFER TO THE
PREVIOUS DECISION.  "PUBLIC POLICY DICTATES THAT THERE BE AN END OF
LITIGATION; THAT THOSE WHO HAVE CONTESTED AN ISSUE SHALL BE BOUND BY
THE RESULT OF THE CONTEST, AND THAT MATTERS ONCE TRIED SHALL BE
CONSIDERED FOREVER SETTLED AS BETWEEN THE PARTIES.  WE SEE NO REASON
WHY THIS DOCTRINE SHOULD NOT APPLY IN EVERY CASE WHERE ONE VOLUNTARILY
APPEARS, PRESENTS HIS CASE AND IS FULLY HEARD, AND WHY HE SHOULD NOT,
IN THE ABSENCE OF FRAUD, BE THEREAFTER CONCLUDED BY THE JUDGMENT OF THE
TRIBUNAL TO WHICH HE HAS SUBMITTED HIS CAUSE."  BALDWIN V. TRAVELING
MEN'S ASSN., 283 U.S. 522, 525-526.  ONE WOULD SUPPOSE THAT THESE
CONSIDERATIONS WOULD BE ESPECIALLY IMPORTANT IN ENFORCING COMITY AMONG
FEDERAL COURTS OF EQUAL AUTHORITY.    THE FACT THAT THE ISSUE INVOLVED
IS THE PROPRIETY OF A TRANSFER OF THE ACTION ONLY MAKES THE CASE FOR
DEFERENCE TO THE PREVIOUS DECISION OF A COORDINATE COURT IN THE SAME
LITIGATION THAT MUCH STRONGER.  THE COURSE OF JUDICIAL ACTION NOW
APPROVED BY THE COURT ALLOWS TRANSFER OVER A PERSISTING OBJECTION ONLY
WHEN CONCURRED IN BY TWO SETS OF COURTS:  THOSE IN THE PLACE WHERE THE
CASE BEGINS, AND THOSE IN THE PLACE TO WHICH TRANSFER IS ORDERED.  NOT
ONLY DOES THE PLACE OF TRIAL THUS REMAIN UNSETTLED FOR AN UNNECESSARILY
LONG TIME TO ACCOMMODATE DOUBLE JUDICIAL CONSIDERATION, BUT, AS THIS
CASE SHOWS, THE RESULT OF A DISAGREEMENT BETWEEN THE COURTS INVOLVED IS
THAT THE LITIGATION CANNOT GO FORWARD AT ALL UNLESS THIS COURT RESOLVES
THE MATTER.  SURELY A SEEMLY SYSTEM OF JUDICIAL REMEDIES, ESPECIALLY
APPELLATE JUDICIAL REMEDIES, REGARDING CONTROVERTED TRANSFER PROVISIONS
OF THE U.S.C. SHOULD ENCOURAGE, NOT DISCOURAGE, QUICK SETTLEMENT OF
QUESTIONS OF TRANSFER AND SHOULD PRECLUDE TWO COURTS OF APPEALS FROM
CREATING, THROUGH THEIR DISAGREEMENT IN THE SAME CASE, AN IMPASSE TO
THE LITIGATION WHICH ONLY THIS COURT CAN REMOVE.  SECTION 1404(A) WAS
MEANT TO SERVE THE ENDS OF "CONVENIENCE" AND "JUSTICE" IN THE TRIAL OF
ACTIONS.  IT PERVERTS THOSE ENDS TO PERMIT A QUESTION ARISING UNDER
SEC. 1404(A), AS HERE, TO BE LITIGATED, IN TURN, BEFORE A DISTRICT
COURT AND COURT OF APPEALS IN ONE CIRCUIT, AND A DISTRICT COURT AND
COURT OF APPEALS IN ANOTHER CIRCUIT, ONE THOUSAND MILES DISTANT,
THEREBY DELAYING TRIAL FOR A YEAR AND A HALF, ONLY TO HAVE THE RESULT
OF ALL THAT PRELIMINARY LITIGATION BE THAT TRIAL MAY NOT GO FORWARD AT
ALL UNTIL THIS COURT SHALL SETTLE THE QUESTION OF WHERE IT SHALL GO
FORWARD, AFTER AT LEAST ANOTHER YEAR'S DELAY. 

WE ARE NOT VOUCHSAFED CLAIMS OF REASON OR OF THE DUE ADMINISTRATION
OF JUSTICE THAT REQUIRE THE DUPLICATION OF APPELLATE REMEDIES APPROVED
BY THE COURT IN THIS CASE.  WHY IS NOT A SINGLE JUDICIAL APPELLATE
REMEDY IN A COURT OF APPEALS ENTIRELY ADEQUATE FOR ONE AGGRIEVED BY A
TRANSFER?  ONCE THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAD DECIDED,
AFTER DUE CONSIDERATION, THAT THE PROPER MEANING OF SEC. 1404(A)
INCLUDED ILLINOIS AS A PLACE WHERE THE ACTION "MIGHT HAVE BEEN
BROUGHT," THIS SHOULD HAVE ENDED THE MATTER, EXCEPT OF COURSE FOR THIS
COURT'S POWER OF REVIEW OF THAT DECISION THROUGH THE WRIT OF
CERTIORARI, A POWER WHICH WE DECLINED TO EXERCISE IN THIS CASE.  NOR
DOES SUCH A VIEW OF RIGHT AND WISE JUDICIAL ADMINISTRATION DEPEND UPON
THE NATURE OF THE PROCEDURAL OR EVEN JURISDICTIONAL ISSUE IN
CONTROVERSY.  TECHNICALLY, RES JUDICATA CONTROLS EVEN A DECISION ON A
MATTER OF TRUE JURISDICTION.  "WE SEE NO REASON WHY A COURT, IN THE
ABSENCE OF AN ALLEGATION OF FRAUD IN OBTAINING THE JUDGMENT, SHOULD
EXAMINE AGAIN THE QUESTION WHETHER THE COURT MAKING THE EARLIER
DETERMINATION ON AN ACTUAL CONTEST OVER JURISDICTION BETWEEN THE
PARTIES, DID HAVE JURISDICTION OF THE SUBJECT MATTER OF THE
LITIGATION."  STOLL V. GOTTLIEB, 305 U.S. 165, AT 172.  SEE ALSO
BALDWIN V. TRAVELING MEN'S ASSN., SUPRA, 283 U.S. 522.  SURELY, A PRIOR
DECISION OF A FEDERAL COURT ON THE UNFUNDAMENTAL ISSUE OF VENUE OUGHT
TO RECEIVE SIMILAR RESPECT FROM A COORDINATE FEDERAL COURT WHEN THE
PARTIES AND THE FACTS ARE THE SAME.  THE QUESTION IS OF THE APPROPRIATE
SCHEME OF JUDICIAL REMEDIES FOR ENFORCING RIGHTS UNDER A FEDERAL
REMEDIAL STATUTE AIMED AT ENHANCING THE FAIR ADMINISTRATION OF JUSTICE
IN THE FEDERAL COURTS.  IT IS NOT CONSONANT WITH REASON TO PERMIT A
DUPLICATE APPELLATE PROCEDURE FOR QUESTIONS UNDER THIS STATUTE, THEREBY
FORESTALLING FINAL DECISION ON A PRE-TRIAL MATTER WHICH OUGHT TO BE
DECIDED AS EXPEDITIOUSLY AS POSSIBLE, CAUSING WASTEFUL DELAY AND
EXPENSE, AND THUS DEPRIVING THE STATUTORY MOTION TO TRANSFER OF
EFFECTIVENESS IN ACHIEVING THE ENDS OF "CONVENIENCE" AND "JUSTICE" FOR
WHICH IT WAS CREATED. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
BRENNAN JOIN, DISSENTING.* 

*THIS OPINION APPLIES ONLY TO NO. 26, SULLIVAN V. BEHIMER.  FOR
OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE HARLAN AND
MR. JUSTICE BRENNAN, IN NO. 25, HOFFMAN V. BLASKI, SEE ANTE, P. 345. 

THE PROBLEM IN THIS CASE IS OF IMPORTANT CONCERN TO THE EFFECTIVE
ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS.  AT ISSUE IS THE SCOPE
OF 28 U.S.C. SEC. 1404(A), PROVIDING FOR THE TRANSFER OF LITIGATION
FROM ONE FEDERAL DISTRICT COURT TO ANOTHER.  THE MAIN FEDERAL VENUE
STATUTES NECESSARILY DEAL WITH CLASSES OF CASES, WITHOUT REGARD TO THE
OCCASIONAL SITUATION IN WHICH A NORMALLY APPROPRIATE VENUE MAY OPERATE
VEXATIOUSLY.  SECTION 1404(A) WAS DEVISED TO AVOID NEEDLESS HARDSHIP
AND EVEN MISCARRIAGE OF JUSTICE BY EMPOWERING DISTRICT JUDGES TO
RECOGNIZE SPECIAL CIRCUMSTANCES CALLING FOR SPECIAL RELIEF.  IT
PROVIDES THAT AN ACTION, ALTHOUGH BEGUN IN A PLACE FALLING WITHIN THE
NORMALLY APPLICABLE VENUE RUBRIC MAY BE SENT BY THE DISTRICT COURT TO
GO FORWARD IN ANOTHER DISTRICT MUCH MORE APPROPRIATE WHEN JUDGED BY THE
CRITERIA OF JUDICIAL JUSTICE. 

THE TERMS OF SEC. 1404(A) ARE AS FOLLOWS: 

"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." 

THE PART OF SEC. 1404(A) THE MEANING OF WHICH IS AT ISSUE HERE IS ITS
LAST PHRASE, "ANY OTHER DISTRICT OR DIVISION WHERE IT (THE ACTION)
MIGHT HAVE BEEN BROUGHT."  THE SIGNIFICANCE OF THIS PHRASE IS THIS:
EVEN THOUGH A PLACE BE FOUND TO BE AN OVERWHELMINGLY MORE APPROPRIATE
FORUM FROM THE STANDPOINT OF "CONVENIENCE" AND "JUSTICE," THE
LITIGATION MAY NOT BE SENT TO GO FORWARD THERE UNLESS IT IS A PLACE
WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT."  UPON THE SCOPE TO BE GIVEN
THIS PHRASE THUS DEPENDS ALMOST ENTIRELY THE EFFECTIVENESS OF SEC.
1404(A) TO INSURE AN APPROPRIATE PLACE OF TRIAL, WHEN THE ACTION IS
BEGUN IN AN OPPRESSIVE FORUM. 

ONE WOULD HAVE TO BE SINGULARLY UNMINDFUL OF THE TREACHERY AND
VERSATILITY OF OUR LANGUAGE TO DENY THAT AS A MERE MATTER OF ENGLISH
THE WORDS "WHERE IT MIGHT HAVE BEEN BROUGHT" MAY CARRY MORE THAN ONE
MEANING.  FOR EXAMPLE, UNDER RULE 3 OF THE FEDERAL RULES OF CIVIL
PROCEDURE, CIVIL ACTIONS ARE "COMMENCED" BY FILING A COMPLAINT WITH THE
COURT.  AS A MATTER OF ENGLISH THERE IS NO REASON WHY "COMMENCED" SO
USED SHOULD NOT BE THOUGHT TO BE SYNONYMOUS WITH "BROUGHT" AS USED IN
SEC. 1404(A), SO THAT AN ACTION "MIGHT HAVE BEEN BROUGHT" IN ANY
DISTRICT WHERE A COMPLAINT MIGHT HAVE BEEN FILED, OR PERHAPS ONLY IN
DISTRICTS WITH JURISDICTION OVER THE SUBJECT MATTER OF THE LITIGATION. 
AS A MATTER OF ENGLISH ALONE, THE PHRASE MIGHT JUST AS WELL BE THOUGHT
TO REFER EITHER TO THOSE PLACES WHERE THE DEFENDANT "MIGHT HAVE BEEN"
SERVED WITH PROCESS, OR TO THOSE PLACES WHERE THE ACTION "MIGHT HAVE
BEEN BROUGHT" IN LIGHT OF THE APPLICABLE VENUE PROVISION, FOR THOSE
PROVISIONS SPEAK GENERALLY OF WHERE ACTIONS "MAY BE BROUGHT."  OR THE
PHRASE MAY BE THOUGHT AS A MATTER OF ENGLISH ALONE TO REFER TO THOSE
PLACES WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT" IN LIGHT OF THE
APPLICABLE STATUTE OF LIMITATIONS, OR OTHER PROVISIONS PREVENTING A
COURT FROM REACHING THE MERITS OF THE LITIGATION.  ON THE FACE OF ITS
WORDS ALONE, THE PHRASE MAY REFER TO ANY ONE OF THESE CONSIDERATIONS,
I.E., VENUE, AMENABILITY TO SERVICE, OR PERIOD OF LIMITATIONS, TO ALL
OF THEM OR TO NONE OF THEM, OR TO OTHERS AS WELL.  (FN1)  AND TO THE
EXTENT THAT THESE ARE MATTERS WHICH MAY OR MAY NOT BE RAISED AT THE
DEFENDANT'S ELECTION, THE ENGLISH OF THE PHRASE SURELY DOES NOT TELL
WHETHER THE DEFENDANT'S ACTUAL OR POTENTIAL WAIVER OR FAILURE TO RAISE
SUCH OBJECTIONS IS TO BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER A
DISTRICT IS ONE IN WHICH THE ACTION "MIGHT HAVE BEEN BROUGHT," OR
WHETHER THE PHRASE REFERS ONLY TO THOSE DISTRICTS WHERE THE PLAINTIFF
"MIGHT HAVE BROUGHT" THE ACTION EVEN OVER A TIMELY OBJECTION ON THE
PART OF THE DEFENDANT, THAT IS, WHERE HE HAD "A RIGHT" TO BRING IT. 

THE PARTICULAR PROBLEM IN THE PRESENT CASE HAS BEEN A RELATIVELY
COMMONPLACE ONE IN THE APPLICATION OF SEC. 1404(A), AND IT DEMONSTRATES
THE FAILURE OF THE WORDS OF THE SECTION, CONSIDERED MERELY AS WORDS, TO
DEFINE WITH PRECISION THOSE PLACES WHERE AN ACTION "MIGHT HAVE BEEN
BROUGHT."  THE PROBLEM HERE IS THIS.  ACTION WAS BROUGHT BY PLAINTIFF
IN DISTRICT A, A PROPER VENUE UNDER THE APPLICABLE VENUE STATUTE. 
DEFENDANT OBJECTED AND MOVED FOR TRANSFER TO DISTRICT B, SUBMITTING
THAT IN THE INTERESTS OF "CONVENIENCE" AND "JUSTICE" TO ALL CONCERNED
THE ACTION SHOULD GO FORWARD THERE INSTEAD OF IN DISTRICT A. DISTRICT
B, HOWEVER, IS ONE IN WHICH, HAD THE COMPLAINT BEEN FILED THERE, THE
PLAINTIFF WOULD HAVE BEEN UNABLE WITHOUT THE DEFENDANT'S CONSENT TO
SERVE HIM WITH PROCESS.  IN ADDITION, THE DEFENDANT IN DISTRICT B, HAD
THE COMPLAINT BEEN FILED THERE, WOULD HAVE HAD AN OBJECTION TO THE
VENUE, UNDER THE APPLICABLE VENUE STATUTE.  IN MOVING FOR TRANSFER TO
B, THE DEFENDANT STIPULATES TO WAIVING ALL OBJECTIONS TO VENUE THERE
AND TO SUBMITTING HIS PERSON TO THE JURISDICTION OF DISTRICT COURT B,
SHOULD TRANSFER BE ORDERED.  THE DISTRICT COURT IN A AGREES THAT B, NOT
A, IS THE APPROPRIATE PLACE FOR TRIAL AND IS DISPOSED TO TRANSFER THE
ACTION THERE, FOR IN LIGHT OF THE DEFENDANT'S STIPULATION THERE IS NO
WAY IN WHICH THE PLAINTIFF CAN BE PREJUDICED BY THE LACK OF VENUE IN B
OR THE IMPOSSIBILITY, AS AN ORIGINAL MATTER, OF SERVING DEFENDANT
THERE.  IS B A PLACE WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT" SO THAT
THE TRANSFER CAN BE EFFECTED?  THE COURT FINDS IT "PLAIN," FROM THE
WORDS OF THE PHRASE THEMSELVES, THAT B IS NOT SUCH A PLACE, AND THAT,
FOR IT, IS THE END OF THE MATTER. 

WE WOULD ALL AGREE THAT B WOULD BE A PLACE WHERE THE ACTION "MIGHT
HAVE BEEN BROUGHT" IF IT WERE A PLACE OF STATUTORY VENUE, IF THE
DEFENDANT HAD ALWAYS BEEN AMENABLE TO PROCESS THERE, AND IF B HAD NO
OTHER SPECIAL CHARACTERISTICS WHEREBY THE DEFENDANT COULD PREVENT
CONSIDERATION THERE OF THE MERITS OF THE CAUSE OF ACTION.  ALMOST EVERY
STATUTE HAS A CORE OF INDISPUTABLE APPLICATION, AND THIS STATUTE
PLAINLY APPLIES TO PERMIT TRANSFER TO A PLACE WHERE THERE COULD NEVER
HAVE BEEN ANY OBJECTION TO THE MAINTENANCE OF THE ACTION.  BUT IS IT
CLEAR, AS THE COURT WOULD HAVE IT, THAT, AS A MERE MATTER OF ENGLISH,
BECAUSE POTENTIAL OBJECTIONS PECULIAR TO THE FORUM WOULD HAVE BEEN
PRESENT IN B, IT IS NOT TO BE DEEMED A PLACE WHERE THE ACTION "MIGHT
HAVE BEEN BROUGHT," ALTHOUGH DEFENDANT NOT ONLY MIGHT BUT IS PREPARED
TO WAIVE, AS HE EFFECTIVELY MAY, SUCH OBJECTIONS? 

I SUBMIT THAT IT IS NOT CLEAR FROM THE WORDS THEMSELVES, AND THE
EXPERIENCE IN THE LOWER COURTS GIVES COMPELLING PROOF OF IT.  AT LEAST
28 DISTRICT COURTS, LOCATED IN ALL PARTS OF THE NATION, HAVE HAD TO
GIVE CONCRETE MEANING TO THE SET OF WORDS IN CONTROVERSY.  THESE ARE
THE JUDGES WHO ARE, TO USE A FAMILIAR BUT APPROPRIATE PHRASE, ON THE
FIRING LINE, WHO ARE IN MUCH MORE INTIMATE, CONTINUOUS TOUCH WITH THE
NEEDS FOR THE EFFECTIVE FUNCTIONING OF THE FEDERAL JUDICIAL SYSTEM AT
THE TRIAL LEVEL THAN IS THIS COURT.  THEY HAVE NOT FOUND THE LAST
PHRASE OF SEC. 1404(A) UNAMBIGUOUS.  THERE HAS BEEN ANYTHING BUT THE
SUBSTANTIAL UNIFORMITY OF VIEWS TO BE EXPECTED IN THE APPLICATION OF A
CLEAR AND UNAMBIGUOUS DIRECTION.  THERE HAVE BEEN SEVERE DIFFERENCES
WITH REGARD TO WHETHER SEC. 1404(A) IS EVER AVAILABLE AS A REMEDY TO A
PLAINTIFF FORCED INTO AN INCONVENIENT FORUM, AND IF SO UNDER WHAT
CONDITIONS.  (FN2)  WITH REGARD TO DEFENDANTS' MOTIONS TO TRANSFER, IT
HAS BEEN HELD THAT "BROUGHT" IN SEC. 1404(A) IS SYNONYMOUS WITH
"COMMENCED" IN RULE 3 SO THAT TRANSFER MAY BE MADE TO VIRTUALLY ANY
DISTRICT DICTATED BY "CONVENIENCE" AND "JUSTICE."  (FN3)  IT HAS BEEN
HELD THAT THE PHRASE IS TO BE APPLIED AS IF IT READ "WHERE IT MIGHT
HAVE BEEN BROUGHT NOW," THUS GIVING FULL EFFECT TO A WAIVER OF
OBJECTIONS BY DEFENDANT IN MOVING FOR TRANSFER.  (FN4)  IT HAS BEEN
SAID, ON THE OTHER HAND, THAT "SECTION 1404(A)  ...  CONTEMPLATES
STATUTORY VENUE AND NOT CONSENT VENUE."  (FN5) 

WITH REGARD TO THE PARTICULAR PROBLEM IN THIS CASE, WHICH HAS ARISEN
MOST OFTEN, A MAJORITY OF THE DISTRICT COURTS WHICH HAVE CONSIDERED THE
PROBLEM HAVE RULED AGAINST THE COURT'S "PLAIN" MEANING OF THE STATUTE. 
AT LEAST SEVEN DISTRICT COURTS HAVE RULED THAT, BECAUSE OF THE
DEFENDANT'S CONSENT TO HAVE THE ACTION GO FORWARD THERE, A DISTRICT IS
ONE WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT," EVEN THOUGH IT IS A
PLACE WHERE THE DEFENDANT MIGHT EITHER HAVE OBJECTED TO THE VENUE, OR
AVOIDED PROCESS, OR BOTH HAD THE ACTION BEEN BROUGHT THERE ORIGINALLY. 
(FN6)  AT LEAST THREE DISTRICT COURTS HAVE HELD OR IMPLIED TO THE
CONTRARY, THAT THE DEFENDANT'S CONSENT IS NOT RELEVANT, AND THAT SUCH A
DISTRICT CANNOT BE ONE WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT." 
(FN7)  TWO OTHERS HAVE SIMPLY DENIED MOTIONS BY THE DEFENDANT ON THE
GROUND THAT THE TRANSFEREE COURT WAS NOT ONE WHERE THE ACTION "MIGHT
HAVE BEEN BROUGHT," WITHOUT DISCUSSING WHETHER IN MOVING FOR TRANSFER
THE DEFENDANT HAD CONSENTED TO GO FORWARD IN THE TRANSFEREE COURT, OR
WHAT THE EFFECT OF THAT CONSENT WOULD BE. (FN8)  TWO DISTRICT COURTS
HAVE GRANTED THE DEFENDANTS' MOTION TO TRANSFER, MAKING THE MATTER TURN
ON THE PRESENCE OF A NUMBER OF DEFENDANTS AND THE FACT THAT SOME OF
THEM WERE SUABLE AS OF RIGHT IN THE TRANSFEREE COURT.  (FN9)  TWO
OTHERS HAVE FOUND THE AMENABILITY OF THE DEFENDANT TO SERVICE OF
PROCESS IN THE PLACE TO WHICH TRANSFER IS PROPOSED TO BE WHOLLY
IRRELEVANT TO WHETHER THE ACTION "MIGHT HAVE BEEN BROUGHT" THERE, AND
HAVE ORDERED TRANSFER TO SUCH A PLACE ON THE PLAINTIFF'S MOTION EVEN
THOUGH THE DEFENDANT DID NOT CONSENT.  (FN10)  IT SIMPLY CANNOT BE SAID
IN THE FACE OF THIS EXPERIENCE THAT THE WORDS OF THE STATUTE ARE SO
COMPELLINGLY PRECISE, SO UNAMBIGUOUS, THAT SEC. 1404(A) AS A MATTER OF
"PLAIN WORDS" DOES NOT APPLY IN THE PRESENT CASE.    THE EXPERIENCE IN
THE COURTS OF APPEALS IS ALSO REVEALING.  OF THE SIX CASES WHERE
DEFENDANTS HAVE MOVED FOR TRANSFER, IN ONLY TWO HAS IT BEEN HELD THAT
THE DEFENDANT'S CONSENT TO THE TRANSFER IS NOT RELEVANT IN DETERMINING
WHETHER THE PLACE TO WHICH TRANSFER IS PROPOSED IS A PLACE WHERE THE
ACTION "MIGHT HAVE BEEN BROUGHT," AND THESE ARE THE TWO DECISIONS OF
THE SEVENTH CIRCUIT NOW BEFORE US. BLASKI V. HOFFMAN, 260 F.2D 317
(C.A. 7TH CIR. 1958); BEHIMER V. SULLIVAN, 261 F.2D 467 (C.A. 7TH CIR.
1958).  THE THIRD CIRCUIT HAS RULED IN FAVOR OF TRANSFER ON THE
DEFENDANT'S MOTION TO A PLACE WHERE THE DEFENDANT MIGHT HAVE OBJECTED
TO THE VENUE, PARAMOUNT PICTURES V. RODNEY, 186 F.2D 111 (C.A. 3D CIR.
1951).  THE FIRST AND SECOND CIRCUITS HAVE RULED IN FAVOR OF TRANSFER
ON DEFENDANT'S MOTION TO A PLACE WHERE THE DEFENDANT COULD NOT HAVE
BEEN SERVED WITH PROCESS, TORRES V. WALSH, 221 F.2D 319 (C.A.2D CIR.
1955); IN RE JOSEPHSON, 218 F.2D 174 (C.A. 1ST CIR. 1954).  AND THE
SECOND AND FIFTH CIRCUITS HAVE RULED IN FAVOR OF TRANSFER ON
DEFENDANT'S MOTION TO A PLACE WHERE THERE WAS NEITHER STATUTORY VENUE
NOR A CHANCE TO SERVE THE DEFENDANT, ANTHONY V. KAUFMAN, 193 F.2D 85
(C.A.2D CIR. 1951); EX PARTE BLASKI, 245 F.2D 737 (C.A. 5TH CIR.
1957).  ALL THESE COURTS HAVE CONSIDERED THE MEANING OF THE PHRASE IN
DETAIL AND HAVE HELD THAT THE PLACE TO WHICH TRANSFER WAS PROPOSED WAS
A PLACE WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT."  THUS THE COURT'S
VIEW OF THE MEANING OF SEC. 1404(A) IS CONTRARY TO THE RULINGS OF EVERY
COURT OF APPEALS BUT ONE WHICH HAS CONSIDERED THE PROBLEM, AND IS
CONTRARY TO THE VIEW OF MORE THAN HALF THE DISTRICT COURTS AS WELL. 
YET THE COURT MAINTAINS THAT THE STATUTE UNAMBIGUOUSLY MEANS WHAT IT
SAYS IT DOES. 

SURELY, THE COURT CREATES ITS OWN VERBAL PRISON IN HOLDING THAT "THE
PLAIN WORDS" OF SEC. 1404(A) DICTATE THAT TRANSFER MAY NOT BE MADE IN
THIS CASE ALTHOUGH TRANSFER CONCEDEDLY WAS IN THE INTEREST OF
"CONVENIENCE" AND "JUSTICE."  MOREOVER, THE COURT, WHILE FINDING THE
STATUTORY WORDS "PLAIN," DECIDES THE CASE BY APPLYING, NOT THE
STATUTORY LANGUAGE, BUT A FORMULA OF WORDS FOUND NOWHERE IN THE
STATUTE, NAMELY, WHETHER PLAINTIFFS HAD "A RIGHT TO BRING THESE ACTIONS
IN THE RESPECTIVE TRANSFEREE DISTRICTS."  THIS IS THE COURT'S LANGUAGE,
NOT THAT OF CONGRESS.  ALTHOUGH IT IS OF COURSE A GRAMMATICALLY
PLAUSIBLE INTERPRETATION OF THE PHRASE "WHERE IT MIGHT HAVE BEEN
BROUGHT," IT HAS BEEN, I SUBMIT, ESTABLISHED THAT IT IS NOT BY ANY
MEANS THE ONLY PLAUSIBLE INTERPRETATION.  IN FACT, THE COURT'S
REPHRASING, AS DISTINGUISHED FROM CONGRESS' PHRASING, GIVES THE
NARROWEST POSSIBLE SCOPE TO THE OPERATION OF SEC. 1404(A).  THERE CAN
BE EXPECTED TO BE VERY FEW, IF ANY, ALTERNATIVE FORUMS IN A GIVEN CASE
WHERE THE PLAINTIFF HAS A "RIGHT" TO SUE, CONSIDERING THAT THAT MEANS
PLACES OF UNOBJECTIONABLE VENUE WHERE THE DEFENDANT IS AMENABLE TO
SERVICE OF PROCESS AND WHERE THERE ARE NO OTHER IMPEDIMENTS SUCH AS A
STATUTE OF LIMITATIONS WHICH THE DEFENDANT CAN RELY ON TO DEFEAT THE
ACTION. 

THIS CASE, THEN, CANNOT BE DECIDED, AND IS NOT DECIDED, BY THE SHORT
WAY OF A MECHANICAL APPLICATION OF CONGRESS' WORDS TO THE SITUATION. 
INDEED, IT WOULD BE EXTRAORDINARY IF A CASE WHICH COULD BE SO DECIDED
WERE DEEMED WORTHY OF THIS COURT'S ATTENTION TWELVE YEARS AFTER THE
APPLICABLE STATUTE WAS ENACTED.  TO CONCLUDE, AS THE COURT DOES, THAT
THE TRANSFEREE COURT IS INEXORABLY DESIGNATED BY THE INHERENT FORCE OF
THE WORDS "WHERE IT MIGHT HAVE BEEN BROUGHT" IS TO STATE A CONCLUSION
THAT CONCEALS THE PROCESS BY WHICH THE MEANING IS, AS A MATTER OF
CHOICE, EXTRACTED FROM THE WORDS. 

THE PROBLEM IN THIS CASE IS ONE OF RESOLVING AN AMBIGUITY BY ALL THE
CONSIDERATIONS RELEVANT TO RESOLVING AN AMBIGUITY CONCERNING THE
CONDUCT OF LITIGATION, AND MORE PARTICULARLY THE CONSIDERATIONS THAT
ARE RELEVANT TO RESOLVING AN AMBIGUOUS DIRECTION FOR THE FAIR CONDUCT
OF LITIGATION IN THE FEDERAL JUDICIAL SYSTEM.  AT THE CRUX OF THE
BUSINESS, AS I SEE IT, IS THE REALIZATION THAT WE ARE CONCERNED HERE
NOT WITH A QUESTION OF A LIMITATION UPON THE POWER OF A FEDERAL COURT
BUT WITH THE PLACE IN WHICH THAT COURT MAY EXERCISE ITS POWER.  WE ARE
DEALING, THAT IS, NOT WITH THE JURISDICTION OF THE FEDERAL COURTS,
WHICH IS BEYOND THE POWER OF LITIGANTS TO CONFER, BUT WITH THE LOCALITY
OF A LAWSUIT, THE RULES REGULATING WHICH ARE DESIGNED MAINLY FOR THE
CONVENIENCE OF THE LITIGANTS.  "THE LOCALITY OF A LAW SUIT - THE PLACE
WHERE JUDICIAL AUTHORITY MAY BE EXERCISED - THOUGH DEFINED BY
LEGISLATION RELATES TO THE CONVENIENCE OF LITIGANTS AND AS SUCH IS
SUBJECT TO THEIR DISPOSITION  ...  .  A VENUE STATUTE 'MERELY ACCORDS
TO THE DEFENDANT A PERSONAL PRIVILEGE RESPECTING THE VENUE, OR PLACE OF
SUIT, WHICH HE MAY ASSERT, OR MAY WAIVE, AT HIS ELECTION.'  COMMERCIAL
INS. CO. V. STONE CO., 278 U.S. 177, 179."  NEIRBO CO. V. BETHLEHEM
SHIPBUILDING CORP., 308 U.S. 165, 168.  AND IN THAT CASE THE COURT WAS
MERELY REITERATING CONSIDERATIONS ALREADY FORCEFULLY SET OUT IN GENERAL
INVESTMENT CO. V. LAKE SHORE R. CO., 260 U.S. 261, AND LEE V.
CHESAPEAKE & OHIO R. CO., 260 U.S. 653.  THIS BASIC DIFFERENCE "BETWEEN
THE COURT'S POWER AND THE LITIGANT'S CONVENIENCE IS HISTORIC IN THE
FEDERAL COURTS."  308 U.S., AT 168. 

APPLYING THESE CONSIDERATIONS TO A PROBLEM UNDER A DIFFERENT STATUTE
BUT RELEVANT TO THE PRESENT ONE, NAMELY, WHETHER REMOVAL FROM A STATE
COURT TO A FEDERAL COURT MIGHT BE HAD UPON THE MOTION OF THE DEFENDANT
WHEN THE FEDERAL COURT WAS ONE WHERE THE VENUE WOULD HAVE BEEN SUBJECT
TO OBJECTION, HAD THE ACTION ORIGINALLY BEEN BROUGHT THERE, THIS COURT,
SPEAKING UNANIMOUSLY THROUGH MR. JUSTICE VAN DEVANTER, DISCRIMINATINGLY
REMINDED THAT "IT THEREFORE CANNOT BE AFFIRMED BROADLY THAT THIS SUIT
COULD NOT HAVE BEEN BROUGHT  ...  IN THE FEDERAL COURT BUT ONLY THAT IT
COULD NOT HAVE BEEN BROUGHT AND MAINTAINED IN THAT COURT OVER A
SEASONABLE OBJECTION BY THE COMPANY TO BEING SUED THERE."  THIS
ANALYSIS HAS STRIKING APPLICATION TO THE PRESENT PROBLEM UNDER SEC.
1404(A), AND IT IS ALSO RELEVANT HERE THAT THE COURT SANCTIONED REMOVAL
IN THAT CASE TO A FEDERAL COURT WITH NO STATUTORY VENUE, PARTLY BECAUSE
"THERE COULD BE NO PURPOSE IN EXTENDING TO REMOVALS THE PERSONAL
PRIVILEGE ACCORDED TO DEFENDANTS BY THE VENUE STATUTES  ...  SINCE
REMOVALS ARE HAD ONLY AT THE INSTANCE OF DEFENDANTS."  GENERAL
INVESTMENT CO. V. LAKE SHORE R. CO., 260 U.S. 261, 273, 275.  SEE ALSO,
TO THE SAME EFFECT, LEE V. CHESAPEAKE & OHIO R. CO., 260 U.S. 653,
OVERRULING EX PARTE WISNER, 203 U.S. 449, AND QUALIFYING IN RE MOORE,
209 U.S. 490.  THE RULE THAT STATUTORY VENUE RULES GOVERNING THE PLACE
OF TRIAL DO NOT AFFECT THE POWER OF A FEDERAL COURT TO ENTERTAIN AN
ACTION, OR OF THE PLAINTIFF TO BRING IT, BUT ONLY AFFORD THE DEFENDANT
A PRIVILEGE TO OBJECT TO THE PLACE CHOSEN, IS NOW ENACTED AS PART OF
THE JUDICIAL CODE.  28 U.S.C. SEC. 1406(B).  AND OF COURSE IT NEEDS NO
DISCUSSION THAT A DEFENDANT IS ALWAYS FREE VOLUNTARILY TO SUBMIT HIS
PERSON TO THE JURISDICTION OF A FEDERAL COURT. 

IN LIGHT OF THE NATURE OF RULES GOVERNING THE PLACE OF TRIAL IN THE
FEDERAL SYSTEM, AS THUS EXPOUNDED AND CODIFIED, AS DISTINGUISHED FROM
LIMITATION UPON THE POWER OF THE FEDERAL COURTS TO ADJUDICATE, WHAT ARE
THE COMPETING CONSIDERATIONS HERE?  THE TRANSFEREE COURT IN THIS CASE
PLAINLY HAD AND HAS JURISDICTION TO ADJUDICATE THIS ACTION WITH THE
DEFENDANT'S ACQUIESCENCE.  AS THE DEFENDANT, WHOSE PRIVILEGE IT IS TO
OBJECT TO THE PLACE OF TRIAL, HAS MOVED FOR TRANSFER, AND HAS
ACQUIESCED TO GOING FORWARD WITH THE LITIGATION IN THE TRANSFEREE
COURT, IT WOULD APPEAR PRESUMPTIVELY, UNLESS THERE ARE STRONG
CONSIDERATIONS OTHERWISE, THAT THERE IS NO IMPEDIMENT TO EFFECTING THE
TRANSFER SO LONG AS "CONVENIENCE" AND "JUSTICE" DICTATE THAT IT BE
MADE.  IT DOES NOT COUNSEL OTHERWISE THAT HERE THE PLAINTIFF IS TO BE
SENT TO A VENUE TO WHICH HE OBJECTS, WHEREAS ORDINARILY, WHEN THE
DEFENDANT WAIVES HIS PRIVILEGE TO OBJECT TO THE PLACE OF TRIAL, IT IS
TO ACQUIESCE IN THE PLAINTIFF'S CHOICE OF FORUM.  THIS WOULD BE A
POWERFUL ARGUMENT IF, UNDER SEC. 1404(A), A TRANSFER WERE TO BE MADE
WHENEVER REQUESTED BY THE DEFENDANT.  SUCH IS NOT THE CASE, AND THIS
BEARS EMPHASIS.  A TRANSFER CAN BE MADE UNDER SEC. 1404(A) TO A PLACE
WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT" ONLY WHEN "CONVENIENCE" AND
"JUSTICE" SO DICTATE, NOT WHENEVER THE DEFENDANT SO MOVES.  A
LEGITIMATE OBJECTION BY THE PLAINTIFF TO PROCEEDING IN THE TRANSFEREE
FORUM WILL PRESUMABLY BE REFLECTED IN A DECISION THAT THE INTEREST OF
JUSTICE DOES NOT REQUIRE THE TRANSFER, AND SO IT BECOMES IRRELEVANT
THAT THE PROPOSED PLACE OF TRANSFER IS DEEMED ONE WHERE THE ACTION
"MIGHT HAVE BEEN BROUGHT."  IF THE PLAINTIFF'S OBJECTION TO PROCEEDINGS
IN THE TRANSFEREE COURT IS NOT CONSONANT WITH THE INTERESTS OF JUSTICE,
A GOOD REASON IS WANTING WHY THE TRANSFER SHOULD NOT BE MADE. 

ON THE OTHER HAND, THE COURT'S VIEW RESTRICTS TRANSFER, WHEN
CONCEDEDLY WARRANTED IN THE INTEREST OF JUSTICE, TO PROTECT NO
LEGITIMATE INTEREST ON THE PART OF THE PLAINTIFF.  AND BY MAKING
TRANSFER TURN ON WHETHER THE DEFENDANT COULD HAVE BEEN SERVED WITH
PROCESS IN THE TRANSFEREE DISTRICT ON THE DAY THE ACTION WAS BROUGHT,
THE COURT'S VIEW MAY CREATE DIFFICULT PROBLEMS IN ASCERTAINING THAT
FACT, ESPECIALLY IN THE CASE OF NON-CORPORATE DEFENDANTS.  THESE ARE
PROBLEMS WHICH HAVE NO CONCEIVABLE RELATION TO THE PROPER
ADMINISTRATION OF A PROVISION MEANT TO ASSURE THE MOST CONVENIENT AND
JUST PLACE FOR TRIAL. 

NOR IS IT NECESSARY TO REACH THE COURT'S RESULT IN ORDER TO PRESERVE
AN APPROPRIATE MEANING FOR THE PHRASE "WHERE IT MIGHT HAVE BEEN
BROUGHT."  I FULLY AGREE THAT THE FINAL WORDS OF SEC.  1404(A) ARE
WORDS OF LIMITATION UPON THE SCOPE OF THE PROVISION.  BUT TO HOLD AS I
WOULD THAT A DISTRICT IS ONE WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT"
WHEN THE DEFENDANT CONSENTS TO GOING FORWARD WITH THE LITIGATION THERE,
DOES NOT REMOVE THE QUALITY OF THOSE WORDS AS A LIMITATION.  THE WORDS
COMPEL THE DEFENDANT IN EFFECT TO WAIVE ANY OBJECTIONS TO GOING FORWARD
IN THE TRANSFEREE DISTRICT WHICH HE MIGHT HAVE HAD IF THE ACTION HAD
BEEN BROUGHT THERE, IN ORDER TO OBTAIN A TRANSFER.  THE WORDS THEREFORE
INSURE THAT TRANSFER WILL NOT BE A DEVICE FOR DOING THE PLAINTIFF OUT
OF ANY FORUM IN WHICH TO PROCEED, NO MATTER HOW INCONVENIENT.  THE
WORDS IN ANY CASE, PLAINLY LIMIT THE PLAINTIFF'S RIGHT TO SEEK A
TRANSFER WHEN THE DEFENDANT DOES NOT CONSENT TO THE CHANGE OF VENUE. 
MOREOVER, THE WORDS MAY SERVE TO PREVENT TRANSFER TO COURTS WITH A LACK
OF FEDERAL POWER TO ADJUDICATE THE MATTER OF THE DISPUTE WHICH THE
DEFENDANT CANNOT CONFER WITH HIS CONSENT.  (FN11)  IN LIGHT OF THE FACT
THAT THE VENUE STATUTES IN TITLE 28, U.S.C., ARE PHRASED IN TERMS OF
WHERE THE ACTION "MAY BE BROUGHT," OR IN SOME CASES WHERE IT "SHALL" OR
"MUST" BE BROUGHT, (FN12) THE MOST OBVIOUS LIMITING SIGNIFICANCE OF THE
PHRASE "WHERE IT MIGHT HAVE BEEN BROUGHT" IS THAT IT REFERS TO PLACES
WHERE, UNDER THE VENUE PROVISIONS, THE ACTION, "MAY," "SHALL," OR
"MUST" BE BROUGHT ASSUMING THE EXISTENCE OF FEDERAL JURISDICTION. 
(FN13)  IN THE MEANING OF FEDERAL VENUE PROVISIONS AS EXPOUNDED BY THIS
COURT, AND BY CONGRESS IN SEC. 1406(B), THESE, AS HAS BEEN SAID, ARE
NOT ONLY PLACES WHERE, UNDER THE APPLICABLE PROVISION, NO OBJECTION TO
THE VENUE IS AVAILABLE TO THE DEFENDANT.  THEY ARE ALSO PLACES WHERE
THE DEFENDANT CONSENTS TO BE SUED. 

THE RELEVANT LEGISLATIVE HISTORY OF SEC. 1404(A) IS FOUND IN THE
STATEMENT IN THE REVISER'S NOTES, ACCOMPANYING THE 1948 JUDICIAL CODE,
THAT SEC. 1404(A) "WAS DRAFTED IN ACCORDANCE WITH THE DOCTRINE OF FORUM
NON CONVENIENS."  (FN14) UNDER THAT DOCTRINE, THE REMEDY FOR AN
INCONVENIENT FORUM WAS NOT TO TRANSFER THE ACTION, BUT TO DISMISS IT.
IN GULF OIL CORP. V. GILBERT, 330 U.S. 501, 506-507, WE HELD THAT "IN
ALL CASES IN WHICH THE DOCTRINE OF FORUM NON CONVENIENS COMES INTO
PLAY, IT PRESUPPOSES AT LEAST TWO FORUMS IN WHICH THE DEFENDANT IS
AMENABLE TO PROCESS; THE DOCTRINE FURNISHES CRITERIA FOR CHOICE BETWEEN
THEM."  IT IS ENTIRELY "IN ACCORDANCE" WITH THIS VIEW OF THE DOCTRINE
OF FORUM NON CONVENIENS TO HOLD THAT TRANSFER MAY BE MADE AT THE
INSTANCE OF THE DEFENDANT, REGARDLESS OF THE PLAINTIFF'S RIGHT AS AN
ORIGINAL MATTER TO SUE HIM IN THE TRANSFEREE COURT, SO LONG AS THE
DEFENDANT STIPULATES TO GOING FORWARD WITH THE LITIGATION THERE. 
INDEED, TO HOLD OTHERWISE AS THE COURT DOES IS TO LIMIT SEC. 1404(A) TO
A MUCH NARROWER OPERATION THAN THE NONSTATUTORY DOCTRINE OF FORUM NON
CONVENIENS.  INVESTIGATION HAS DISCLOSED SEVERAL FORUM NON CONVENIENS
CASES, ONE OF THEM IN THIS COURT, WHERE DISMISSAL OF THE ACTION ON THE
DEFENDANT'S MOTION WAS MADE UPON THE CONDITION OF THE DEFENDANT'S
VOLUNTARY SUBMISSION TO THE JURISDICTION OF ANOTHER MORE CONVENIENT
FORUM WHEN THAT FORUM WAS NOT AVAILABLE TO THE PLAINTIFF AS OF RIGHT
OVER THE DEFENDANT'S OBJECTION.  SEE CANADA MALTING CO. V. PATERSON
STEAMSHIPS, LTD., 49 F.2D 802, 804, AFFIRMED, 285 U.S. 413, 424;
GIATILIS V. THE DARNIE, 171 F. SUPP. 751, 754; BULKLEY, DUNTON PAPER
CO. V. THE RIO SALADO, 67 F. SUPP.  115, 116; LIBBY, MCNEILL & LIBBY V.
BRISTOL CITY LINE OF STEAMSHIPS, 41 F. SUPP. 386, 389; THE CITY OF
AGRA, 35 F. SUPP. 351; STRASSBURGER V. SINGER MFG. CO., 263 APP. DIV.
518, 33 N.Y. SUPP. 2D 424; WENDEL V. HOFFMAN, 258 APP. DIV. 1084, 18
N.Y. SUPP. 2D 96.  SEE ALSO CERRO DE PASCO COPPER CORP. V. KNUT
KNUTSEN, 187 F.2D 990, AND SWIFT & CO. V. COMPANIA CARIBE, 339 U.S.
684, 697-698:  "IT WAS IMPROPER UNDER THE CIRCUMSTANCES HERE SHOWN TO
REMIT A UNITED STATES CITIZEN TO THE COURTS OF A FOREIGN COUNTRY
WITHOUT ASSURING THE CITIZEN THAT RESPONDENTS WOULD APPEAR IN THOSE
COURTS AND THAT SECURITY WOULD BE GIVEN EQUAL TO WHAT HAD BEEN OBTAINED
BY ATTACHMENT IN THE DISTRICT COURT.  THE POWER OF THE DISTRICT COURT
TO GIVE A LIBELLANT SUCH ASSURANCE IS SHOWN BY CANADA MALTING CO. V.
PATERSON STEAMSHIPS, LTD., 285 U.S. 413, 424 (SUPRA)."  IN VIEW OF THE
FAMILIARITY OF THIS DEVICE OF DISMISSING FOR FORUM NON CONVENIENS WHEN
AS OF RIGHT NO OTHER FORUM WAS AVAILABLE TO PLAINTIFF, UPON THE
DEFENDANT'S AGREEMENT TO APPEAR IN THE MORE CONVENIENT FORUM, IT IS
ALMOST NECESSARY TO SUPPOSE, IN LIGHT OF THE REVISER'S DESCRIPTION OF
SEC. 1404(A) AS "IN ACCORDANCE WITH THE DOCTRINE OF FORUM NON
CONVENIENS," THAT TRANSFER UNDER SEC. 1404(A) MAY LIKEWISE BE MADE
WHERE THE DEFENDANT CONSENTS TO GOING FORWARD WITH THE CASE IN THE
TRANSFEREE COURT. 

THE ONLY CONSIDERATION OF THE COURT NOT RESTING ON THE "PLAIN
MEANING" OF SEC. 1404(A) IS THAT IT WOULD CONSTITUTE "GROSS
DISCRIMINATION" TO PERMIT TRANSFER TO BE MADE WITH THE DEFENDANT'S
CONSENT AND OVER THE PLAINTIFF'S OBJECTION TO A DISTRICT TO WHICH THE
PLAINTIFF COULD NOT SIMILARLY OBTAIN TRANSFER OVER THE DEFENDANT'S
OBJECTION.  TO SPEAK OF SUCH A SITUATION AS REGARDS THIS STATUTE AS
"DISCRIMINATION" IS A STERILE USE OF THE CONCEPT.  MUTUALITY IS NOT AN
EMPTY OR ABSTRACT DOCTRINE; IT SUMMARIZES THE REALITY OF FAIR DEALING
BETWEEN LITIGANTS.  TRANSFER CANNOT BE MADE UNDER THIS STATUTE UNLESS
IT IS FOUND TO BE IN THE INTEREST OF "CONVENIENCE" AND IN THE INTEREST
OF "JUSTICE."  WHETHER A PARTY IS IN ANY SENSE BEING "DISCRIMINATED"
AGAINST THROUGH A TRANSFER IS CERTAINLY RELEVANT TO WHETHER THE
INTEREST OF JUSTICE IS BEING SERVED.  IF THE INTEREST OF JUSTICE IS
BEING SERVED, AS IT MUST BE FOR A TRANSFER TO BE MADE, HOW CAN IT BE
SAID THAT THERE IS "DISCRIMINATION" IN ANY MEANINGFUL SENSE?  MOREOVER,
THE TRANSFER PROVISION CANNOT BE VIEWED IN ISOLATION IN FINDING
"DISCRIMINATION."  IT, AFTER ALL, OPERATES TO TEMPER ONLY TO A SLIGHT
DEGREE THE ENORMOUS "DISCRIMINATION" INHERENT IN OUR SYSTEM OF
LITIGATION, WHEREBY THE SOLE CHOICE OF FORUM, FROM AMONG THOSE WHERE
SERVICE IS POSSIBLE AND VENUE UNOBJECTIONABLE, IS PLACED WITH THE
PLAINTIFF.  THE PLAINTIFF MAY CHOOSE FROM AMONG THESE FORUMS AT WILL;
UNDER SEC. 1404(A) THE DEFENDANT MUST SATISFY A VERY SUBSTANTIAL BURDEN
OF DEMONSTRATING WHERE "JUSTICE" AND "CONVENIENCE" LIE, IN ORDER TO
HAVE HIS OBJECTION TO A FORUM OF HARDSHIP, IN THE PARTICULAR SITUATION,
RESPECTED. 

IN SUMMARY, THEN, THE "PLAIN MEANING" OF SEC. 1404(A) DOES NOT
CONCLUDE THE PRESENT CASE AGAINST THE TRANSFER, FOR THE STATUTE, AS
APPLIED IN THIS CASE, IS NOT "PLAIN" IN MEANING ONE WAY OR ANOTHER, BUT
CONTAINS AMBIGUITIES WHICH MUST BE RESOLVED BY CONSIDERATIONS RELEVANT
TO THE PROBLEM WITH WHICH THE STATUTE DEALS.  MOREOVER, THE MOST
OBVIOUS SIGNIFICANCE FOR THE SET OF WORDS HERE IN QUESTION, CONSIDERED
AS SELF-CONTAINED WORDS, IS THAT THEY HAVE REGARD FOR THE LIMITATIONS
CONTAINED IN THE REGULAR STATUTORY RULES OF VENUE.  THOSE RULES, IT IS
BEYOND DISPUTE, TAKE INTO ACCOUNT THE CONSENT OF THE DEFENDANT TO
PROCEED IN THE FORUM, EVEN IF IT IS NOT A FORUM DESIGNATED BY STATUTE. 
AND THE DOCTRINE OF FORUM NON CONVENIENS "IN ACCORDANCE WITH" WHICH
SEC. 1404(A) WAS DRAFTED, ALSO TOOK INTO ACCOUNT THE DEFENDANT'S
CONSENT TO PROCEED IN ANOTHER FORUM TO WHICH HE WAS NOT OBLIGATED TO
SUBMIT.  NOR CAN A DECISION AGAINST TRANSFER BE RESTED UPON NOTIONS OF
"DISCRIMINATION" OR OF UNFAIRNESS TO THE PLAINTIFF IN WRENCHING HIM OUT
OF THE FORUM OF HIS CHOICE TO GO FORWARD IN A PLACE TO WHICH HE
OBJECTS.  IN THE PROPER ADMINISTRATION OF SEC. 1404(A), SUCH
CONSEQUENCES CANNOT SURVIVE THE NECESSITY TO FIND TRANSFER TO BE IN THE
INTERESTS OF "CONVENIENCE" AND "JUSTICE," BEFORE IT CAN BE MADE.  ON
THE OTHER HAND, TO RESTRICT TRANSFER AS THE COURT DOES TO THOSE VERY
FEW PLACES WHERE THE DEFENDANT WAS ORIGINALLY AMENABLE TO PROCESS AND
COULD HAVE HAD NO OBJECTION TO THE VENUE IS DRASTICALLY TO RESTRICT THE
NUMBER OF SITUATIONS IN WHICH SEC. 1404(A) MAY SERVE THE INTERESTS OF
JUSTICE BY RELIEVING THE PARTIES FROM A VEXATIOUS FORUM.  AND IT IS TO
RESTRICT THE OPERATION OF THE SECTION CAPRICIOUSLY, FOR SUCH DRASTIC
LIMITATION IS NOT COUNSELED BY ANY LEGITIMATE INTEREST OF THE
PLAINTIFF, OR BY ANY INTEREST OF THE FEDERAL COURTS IN THEIR
JURISDICTION.  THE DEFENDANT'S INTEREST OF COURSE IS NOT INVOLVED
BECAUSE HE IS THE MOVANT FOR TRANSFER. 

THE ESSENCE OF THIS CASE IS TO GIVE FAIR SCOPE TO THE ROLE OF SEC.
1404(A) IN OUR SYSTEM OF VENUE REGULATIONS, THAT IS, A SYSTEM WHEREBY
LITIGATION MAY BE BROUGHT IN ONLY A LIMITED NUMBER OF FEDERAL
DISTRICTS, WHICH ARE CHOSEN GENERALLY UPON THE BASIS OF PRESUMED
CONVENIENCE.  TWO EXTREMES ARE POSSIBLE IN THE ADMINISTRATION OF SUCH A
SYSTEM, DULY MINDFUL OF THE FACT THAT IN OUR JURISPRUDENCE VENUE DOES
NOT TOUCH THE POWER OF THE COURT.  (1) ALL VENUE MAY BE DETERMINED
SOLELY BY RIGID RULES, WHICH THE DEFENDANT MAY INVOKE AND WHICH WORK
FOR CONVENIENCE IN THE GENERALITY OF CASES.  IN SUCH AN EXTREME
SITUATION THERE WOULD BE NO MEANS OF RESPONDING TO THE SPECIAL
CIRCUMSTANCES OF PARTICULAR CASES WHEN THE RIGID VENUE RULES ARE
INAPPROPRIATE.  (2) AT THE OTHER EXTREME THERE MAY BE NO RIGID VENUE
PROVISIONS, BUT ALL VENUE MAY BE DETERMINED, UPON THE DEFENDANT'S
OBJECTION TO THE PLAINTIFF'S CHOICE OF FORUM, BY A FINDING OF FACT IN
EACH CASE OF WHAT IS THE MOST CONVENIENT FORUM FROM THE POINT OF VIEW
OF THE PARTIES AND THE COURT.  THE ELEMENT OF UNDESIRABILITY IN THE
SECOND EXTREME IS THAT IT INVOLVES TOO MUCH PRELIMINARY LITIGATION; IT
IS DESIRABLE IN THAT IT MAKES VENUE RESPONSIVE TO ACTUAL CONVENIENCE. 
THE FIRST EXTREME IS UNDESIRABLE FOR ACCORDING TOO LITTLE, IN FACT
NOTHING, TO ACTUAL CONVENIENCE WHEN THE CASE IS A SPECIAL ONE; IT IS
DESIRABLE IN THAT IT DOES AWAY WITH PRELIMINARY LITIGATION. 

IF ANYTHING IS PLAIN, FROM ITS HISTORY AND FROM ITS WORDS, IT IS THAT
SEC. 1404(A) MEANS TO AFFORD A BALANCE, A COMPROMISE, BETWEEN THESE TWO
EXTREMES.  IT IS IN THIS SPIRIT THAT ITS PROVISIONS MUST BE READ.  IN
THE ORDINARY COURSE THE REGULAR VENUE RULES ARE TO PREVAIL, WITH NO
PRELIMINARY LITIGATION TO DETERMINE THE ACTUAL CONVENIENCE.  BUT THE
STATUTE MEANS TO ALLOW FOR CASES WHERE THE ORDINARY RULES ARE FOUND TO
WORK A GREAT HARDSHIP; THERE, ACTUAL CONVENIENCE IS TO PREVAIL.  WE
SHOULD THEREFORE NOT, AS THE COURT HAS DONE, IMPOSE LIMITATIONS UPON
THE OPERATION OF SEC. 1404(A) WHICH HAVE NO RELATION TO ORDINARY
CONSIDERATIONS GOVERNING THE PLACE OF TRIAL IN THE FEDERAL SYSTEM AND
WHICH ARBITRARILY PREVENT ACTUAL CONVENIENCE FROM DETERMINING THE PLACE
OF TRIAL.  THE LIMITATIONS UPON THE SECTION SHOULD ONLY BE THOSE WHICH
RECOGNIZE LEGITIMATE COUNTERVAILING CONSIDERATIONS TO THE FREE REIGN OF
ACTUAL CONVENIENCE, NAMELY LIMITATIONS REGARDING THE POWER OF THE
FEDERAL COURTS TO ADJUDICATE, AND LIMITATION RECOGNIZING THE HISTORIC
PRIVILEGE OF THE DEFENDANT, SHOULD HE CHOOSE TO EXERCISE IT, TO OBJECT
TO THE PLACE OF TRIAL UNLESS IT IS AFFIRMATIVELY DESIGNATED BY THE
VENUE STATUTE. 

IT MAY BE URGED IN ANSWER TO THIS ANALYSIS THAT IF TRANSFER IS
AVAILABLE AS A MATTER OF "CONVENIENCE" AND "JUSTICE" IN EVERY CASE IN
WHICH THE DEFENDANT CONSENTS TO GOING FORWARD IN THE TRANSFEREE COURT,
SEC. 1404(A) WILL ENTAIL BURDENSOME PRELIMINARY LITIGATION AND MAY, IF
IMPROPERLY ADMINISTERED, PROVE VEXATIOUS TO PLAINTIFFS.  THUS, EVEN
ARBITRARY LIMITATIONS, SUCH AS THE COURT IMPOSES, MAY BE SAID TO BE
WARRANTED.  IN EFFECT THIS ARGUMENT AGAINST TRANSFER IN SITUATIONS LIKE
THE PRESENT IMPLIES DISTRUST IN THE ABILITY AND CHARACTER OF DISTRICT
JUDGES TO HOLD THE BALANCE EVEN, THAT IS, TO DISPOSE QUICKLY OF
FRIVOLOUS CONTENTIONS AND TO PREVENT TRANSFER FROM PROVING UNDULY
PREJUDICIAL TO PLAINTIFFS WHILE ACCORDING IT ITS PROPER SCOPE TO DEAL
WITH CASES OF REAL INCONVENIENCE.  "SUCH APPREHENSION IMPLIES A LACK OF
DISCIPLINE AND OF DISINTERESTEDNESS ON THE PART OF THE LOWER COURTS,
HARDLY A WORTHY OR WISE BASIS FOR FASHIONING RULES OF PROCEDURE.  IT
REFLECTS AN ATTITUDE AGAINST WHICH WE WERE WARNED BY MR. JUSTICE
HOLMES, SPEAKING FOR THE WHOLE COURT, LIKEWISE IN REGARD TO A QUESTION
OF PROCEDURE: 'UNIVERSAL DISTRUST CREATES UNIVERSAL INCOMPETENCE.' 
GRAHAM V. UNITED STATES, 231 U.S. 474, 480."  KEROTEST MFG. CO. V. C-O
TWO CO., 342 U.S. 180, 185.  AS IN THAT CASE, DOUBTS HERE SHOULD BE
RESOLVED IN FAVOR OF THE COMPETENCE OF THE DISTRICT COURTS WISELY TO
ADMINISTER SEC. 1404(A).  WHATEVER SALUTARY EFFECT THAT SECTION IS TO
HAVE MUST IN ANY EVENT DEPEND UPON DUE APPRECIATION BY DISTRICT JUDGES
OF THE RELEVANT CONSIDERATIONS INVOLVED IN ORDERING A TRANSFER. 
NOTHING IS TO BE GAINED BY PARCELING OUT THE AREAS OF THEIR DISCRETION
MECHANICALLY, MAKING DISTINCTIONS WHICH HAVE NO RELEVANCE TO THE MANNER
IN WHICH VENUE PROVISIONS ARE ORDINARILY ADMINISTERED IN THE FEDERAL
COURTS.  I WOULD THEREFORE PERMIT CONSIDERATIONS OF "CONVENIENCE" AND
"JUSTICE" TO BE OPERATIVE WHENEVER THE DEFENDANT CONSENTS TO GOING
FORWARD IN THE TRANSFEREE COURT ON THE SAME TERMS ON WHICH HE WAS SUED
IN THE ORIGINAL FORUM.  AGAINST A RARE ABUSE, THERE WILL ALWAYS BE
AVAILABLE THE CORRECTIVE SUPERVISORY POWER OF THE COURTS OF APPEALS,
AND ULTIMATELY OF THIS COURT. 

FN1  SEE, E.G., FELCHLIN V. AMERICAN SMELTING & REFINING CO., 136 F.
SUPP. 577 (D.C.S.D.  CALIF. 1955)(TRANSFER DENIED ON DEFENDANT'S MOTION
BECAUSE PLAINTIFF WAS AN EXECUTOR NOT QUALIFIED IN TRANSFEREE COURT);
MASTERPIECE PRODUCTS, INC., V. UNITED ARTISTS CORP., 90 F. SUPP. 750
(D.C.E.D. PA. 1950)(TRANSFER DENIED ON DEFENDANT'S MOTION BECAUSE, HAD
THE ACTION ORIGINALLY BEEN BROUGHT IN THE TRANSFEREE COURT, THE
ALIGNMENT OF PARTIES WOULD HAVE BEEN DIFFERENT, THERE BEING ONE
INVOLUNTARY PARTY, THEREBY DESTROYING COMPLETE DIVERSITY OF
CITIZENSHIP); LUCAS V. NEW YORK CENTRAL R. CO., 88 F. SUPP. 536
(D.C.S.D.N.Y. 1950)(TRANSFER DENIED ON DEFENDANT'S MOTION BECAUSE
DEFENDANT'S CORPORATE STATUS WOULD HAVE DESTROYED DIVERSITY OF
CITIZENSHIP HAD THE ACTION BEEN BROUGHT IN THE TRANSFEREE COURT).  IN
ALL OF THESE CASES TRANSFER WAS DENIED BECAUSE THE TRANSFEREE COURT WAS
DEEMED NOT TO BE ONE WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT."  SEE
ALSO ARVIDSON V. REYNOLDS METALS CO., 107 F. SUPP. 51 (D.C.W.D. WASH.
1952) (DENYING THE DEFENDANT'S MOTION FOR TRANSFER IN PART BECAUSE THE
ACTION WAS A LOCAL ONE, AND STATE COURTS IN THE TRANSFEREE DISTRICT
WOULD NOT HAVE TAKEN JURISDICTION OVER IT). 

FN2  SEE, E.G., DUFEK V. ROUX DISTRIB.  CO., 125 F. SUPP. 716
(D.C.S.D.N.Y. 1954); BARNHART V. ROGERS PRODUCING CO., 86 F. SUPP. 595
(D.C.N.D. OHIO 1949); TROY V. POORVU, 132 F. SUPP.  864 (D.C. MASS.
1955); UNITED STATES V. REID, 104 F. SUPP. 260 (D.C.E.D. ARK. 1952);
OTTO V. HIRL, 89 F. SUPP. 72 (D.C.S.D. IOWA 1952); MCGEE V. SOUTHERN
PACIFIC CO., 151 F. SUPP. 338 (D.C.S.D.N.Y. 1957); ROGERS V. HALFORD,
107 F. SUPP. 295 (D.C.E.D. WISC.  1952); HERZOG V. CENTRAL STEEL TUBE
CO., 98 F. SUPP. 607 (D.C.S.D. IOWA 1951); MITCHELL V. GUNDLACH, 136 F.
SUPP. 169 (D.C. MD. 1955); MCCARLEY V. FOSTER-MILBURN CO., 89 F. SUPP.
643 (D.C.W.D.N.Y. 1950). 

FN3  OTTO V. HIRL, 89 F. SUPP. 72, 74 (D.C.S.D. IOWA 1952). 

FN4  CAIN V. BOWATER'S NEWFOUNDLAND PULP & PAPER MILLS, LTD., 127 F.
SUPP. 949, 950 (D.C.E.D.  PA. 1954). 

FN5  JOHNSON V. HARRIS, 112 F. SUPP. 338, 341 (D.C.E.D. TENN. 1953). 

FN6  HILL V. UPPER MISSISSIPPI TOWING CORP., 141 F. SUPP. 692 (D.C.
MINN. 1956); MCGEE V. SOUTHERN PACIFIC CO., 151 F. SUPP. 338
(D.C.S.D.N.Y. 1957); WELCH V. ESSO SHIPPING CO., 112 F. SUPP. 611
(D.C.S.D.N.Y. 1953); MIRE V. ESSO SHIPPING CO., 112 F. SUPP. 612
(D.C.S.D.N.Y.  1953); CAIN V. BOWATER'S NEWFOUNDLAND PULP & PAPER
MILLS, LTD., 127 F. SUPP. 949 (D.C.E.D. PA. 1954); ANTHONY V. RKO RADIO
PICTURES, 103 F. SUPP. 56 (D.C.S.D.N.Y.  1951); BLASKI V. HOWELL
(D.C.N.D. ILL., MARCH 14, 1958). 

FN7  GENERAL ELECTRIC CO. V. CENTRAL TRANSIT WAREHOUSE CO., 127 F.
SUPP. 817 (D.C.W.D. MO.  1955); TIVOLI REALTY V. PARAMOUNT PICTURES, 89
F. SUPP. 278 (D.C. DEL. 1950); FELCHLIN V. AMERICAN SMELTING & REFINING
CO., 136 F. SUPP. 577 (D.C.S.D. CALIF. 1955).  SEE ALSO JOHNSON V.
HARRIS, 112 F. SUPP. 338 (D.C.E.D. TENN. 1953)(DICTUM). 

FN8  SILBERT V. NU-CAR CARRIERS, 111 F. SUPP. 357 (D.C.S.D.N.Y.
1953); HAMPTON THEATERS, INC., V. PARAMOUNT FILM DISTRIBUTING CORP., 90
F. SUPP. 645 (D.C.D.C. 1950).  SEE ALSO ARVIDSON V. REYNOLDS METALS
CO., 107 F. SUPP. 51 (D.C.W.D. WASH. 1952)(DENYING THE DEFENDANTS'
MOTION TO TRANSFER IN PART BECAUSE THE PLAINTIFF WOULD NOT HAVE BEEN
AMENABLE TO PROCESS IN THE TRANSFEREE COURT). 

FN9  FERGUSON V. FORD MOTOR CO., 89 F. SUPP. 45 (D.C.S.D.N.Y. 1950);
GLASFLOSS CORP. V. OWENS-CORNING FIBERGLAS CORP., 90 F. SUPP. 967
(D.C.S.D.N.Y. 1950). 

FN10  MCCARLEY V. FOSTER-MILBURN CO., 89 F. SUPP. 643 (D.C.W.D.N.Y.
1950); TROY V. POORVU, 132 F. SUPP. 864 (D.C. MASS. 1955). 

FN11  SEE CASES CITED IN NOTE 1, SUPRA. 

FN12  SEE 28 U.S.C. SECS. 1391, 1392(A) AND (B), 1393(A) AND (B),
1396-1399, 1400(B), 1401 AND 1403. 

FN13  SEE CHIEF JUDGE MAGRUDER'S OPINION FOR THE COURT OF APPEALS FOR
THE FIRST CIRCUIT IN IN RE JOSEPHSON, 218 F.2D 174, 184. 

FN14  THE WHOLE OF THE STATEMENT IN THE REVISER'S NOTE DEALING WITH
SUBSECTION (A) OF SEC.  1404 IS AS FOLLOWS: 

"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,  ...  314 U.S. 44,
...  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." 
..END :



PARR V. UNITED STATES 363 U.S. 370 


NO. 391.  ARGUED APRIL 28, 1960.  - DECIDED JUNE 13, 1960.  - 265 F.2D
894, REVERSED. 


PETITIONERS WERE INDICTED ON 20 COUNTS IN A FEDERAL DISTRICT COURT FOR
USING THE MAILS TO DEFRAUD, IN VIOLATION OF 18 U.S.C. SEC. 1341, AND
CONSPIRING TO DO SO, IN VIOLATION OF 18 U.S.C. SEC. 371.  THE
INDICTMENT CHARGED THAT TOGETHER THEY CONTROLLED A SCHOOL DISTRICT AND
ITS DEPOSITORY BANK, THE ASSESSMENT AND COLLECTION OF SCHOOL TAXES AND
THE EXPENDITURE OF SCHOOL FUNDS, AND THAT THEY ENTERED INTO AND CARRIED
OUT A SCHEME TO DEFRAUD THE SCHOOL DISTRICT, THE STATE AND THE
TAXPAYERS OF EACH BY MISAPPROPRIATING AND EMBEZZLING FUNDS AND PROPERTY
OF THE SCHOOL DISTRICT.  THE SPECIFIC OFFENSE CHARGED IN EACH OF THE
FIRST 19 COUNTS WAS THAT, FOR THE PURPOSE OF EXECUTING THE SCHEME,
PETITIONERS CAUSED A PARTICULAR LETTER, CHECK, TAX STATEMENT, TAX
RECEIPT OR INVOICE TO BE PLACED IN, OR RECEIVED FROM, AN AUTHORIZED
DEPOSITORY FOR UNITED STATES MAIL.  COUNT 20 CHARGED THAT PETITIONERS
CONSPIRED TO COMMIT THE OFFENSE SET OUT IN THE FIRST COUNT AND
COMMITTED SPECIFIC OVERT ACTS TO THAT END.  THEY WERE CONVICTED, AND
THE CONVICTIONS WERE SUSTAINED BY THE COURT OF APPEALS.  HELD:
ALTHOUGH THE INDICTMENT CHARGED, AND THE EVIDENCE TENDED TO SHOW, THAT
PETITIONERS DEVISED AND PRACTICED A SCHEME TO DEFRAUD THE SCHOOL
DISTRICT BY MISAPPROPRIATING AND EMBEZZLING ITS MONEY AND PROPERTY,
NEITHER THE INDICTMENT NOR THE EVIDENCE SUPPORTS THE JUDGMENTS, BECAUSE
THE INDICTMENT DID NOT CHARGE, AND THE EVIDENCE DID NOT SHOW, ANY USE
OF THE MAILS "FOR THE PURPOSE OF EXECUTING SUCH SCHEME," WITHIN THE
MEANING OF 18 U.S.C. SEC. 1341.  PP. 371-394. 

(A)  THE INDICTMENT DID NOT EXPRESSLY OR IMPLIEDLY CHARGE, AND THERE
WAS NO EVIDENCE TENDING TO SHOW, THAT THE TAXES ASSESSED WERE
EXCESSIVE, "PADDED" OR IN ANY WAY ILLEGAL; NOR DID THE COURT SUBMIT ANY
SUCH ISSUE TO THE JURY.  PP. 385-388. 

(B)  IN THE LIGHT OF THE PARTICULAR CIRCUMSTANCES OF THIS CASE, AND
ESPECIALLY OF THE FACTS THAT (1) THE SCHOOL BOARD WAS LEGALLY REQUIRED
TO COLLECT AND ASSESS TAXES, (2) THE INDICTMENT DID NOT CHARGE NOR THE
PROOFS SHOW THAT THE TAXES ASSESSED AND COLLECTED WERE EXCESSIVE,
"PADDED" OR IN ANY WAY UNLAWFUL, (3) NO SUCH ISSUE WAS SUBMITTED TO, OR
DETERMINED BY, THE JURY, (4) THE BOARD WAS COMPELLED BY STATE LAW TO
COLLECT AND RECEIPT FOR THE TAXES, AND (5) IT WAS LEGALLY COMPELLED TO
USE THE MAILS IN DOING SO, IT MUST BE CONCLUDED THAT THE LEGALLY
COMPELLED MAILINGS COMPLAINED OF IN THE FIRST 16 COUNTS OF THE
INDICTMENT WERE NOT SHOWN TO HAVE BEEN MADE "FOR THE PURPOSE OF
EXECUTING SUCH SCHEME," WITHIN THE MEANING OF SEC. 1341.  PP. 388-391. 

(C)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE MAILINGS
COMPLAINED OF IN THE FIRST 16 COUNTS OF THE INDICTMENT CONSTITUTED
FALSE PRETENSES AND MISREPRESENTATIONS TO OBTAIN MONEY.  PP. 391-392. 

(D)  AS TO THE CHARGES IN COUNTS 17, 18 AND 19 THAT TWO OF THE
PETITIONERS FRAUDULENTLY OBTAINED GASOLINE AND OTHER FILLING STATION
PRODUCTS AND SERVICES FOR THEMSELVES UPON THE CREDIT CARD AND AT THE
EXPENSE OF THE SCHOOL DISTRICT, KNOWING THAT THE OIL COMPANY WOULD USE
THE MAILS IN BILLING THE SCHOOL DISTRICT FOR THESE THINGS, IT CANNOT BE
SAID THAT THE MAILINGS IN QUESTION WERE "FOR THE PURPOSE OF EXECUTING"
THE SCHEME TO DEFRAUD, SINCE THE SCHEME HAD REACHED FRUITION WHEN THESE
TWO PETITIONERS RECEIVED THE GOODS AND SERVICES COMPLAINED OF AND
BEFORE THE MAILINGS OCCURRED.  PP. 392-393. 

(E)  INASMUCH AS COUNT 20 CHARGED PETITIONERS WITH CONSPIRING TO
COMMIT THE OFFENSE COMPLAINED OF IN COUNT 1, AND INASMUCH AS, ON THIS
RECORD, THAT COUNT CANNOT BE SUSTAINED, IT FOLLOWS THAT PETITIONERS'
CONVICTIONS UPON COUNT 20 CANNOT STAND.  P. 393. 

PARR ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, NINE INDIVIDUALS AND TWO STATE BANKING CORPORATIONS,
(FN1) WERE INDICTED IN 20 COUNTS IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION, FOR MAIL FRAUD
AND CONSPIRACY TO COMMIT MAIL FRAUD.  THE FIRST 19 COUNTS CHARGED THAT
PETITIONERS DEVISED, PRIOR TO SEPTEMBER 1, 1949, AND CONTINUED TO
FEBRUARY 20, 1954, A SCHEME TO DEFRAUD THE BENAVIDES INDEPENDENT SCHOOL
DISTRICT ("DISTRICT") OF DUVAL COUNTY, TEXAS, THE STATE OF TEXAS, AND
THE TAXPAYERS OF EACH, AND THAT THEY USED THE MAILS FOR THE PURPOSE OF
EXECUTING THE SCHEME, IN VIOLATION OF 18 U.S.C. SEC. 1341.  (FN2)  THE
TWENTIETH COUNT CHARGED THAT PETITIONERS CONSPIRED TO COMMIT THE
SUBSTANTIVE OFFENSE CHARGED IN THE FIRST COUNT, IN VIOLATION OF 18
U.S.C. SEC.  371.  (FN3) 

AFTER THEIR VARIOUS MOTIONS, INCLUDING ONE CHALLENGING VENUE AND
ASKING TRANSFER OF THE ACTION TO THE CORPUS CHRISTI DIVISION OF THE
COURT, AND ONE FOR A BILL OF PARTICULARS, WERE DENIED, PETITIONERS
ENTERED PLEAS OF "NOT GUILTY" AND IN DUE COURSE THE CASE WAS PUT TO
TRIAL BEFORE A JURY.   THE JURY RETURNED VERDICTS FINDING PETITIONERS
GUILTY AS CHARGED - SOME OF THEM ON ALL COUNTS AND OTHERS ON ONLY SOME
OF THE COUNTS.  AFTER DENYING TIMELY MOTIONS IN ARREST OF JUDGMENT AND
FOR A NEW TRIAL, THE COURT ENTERED JUDGMENTS UPON THE VERDICTS,
CONVICTING PETITIONERS AND SENTENCING THEM TO IMPRISONMENT.  (FN4)  ON
APPEAL, THE JUDGMENTS WERE AFFIRMED, 265 F.2D 894, AND, TO DETERMINE
QUESTIONS OF IMPORTANCE RELATIVE TO THE SCOPE AND PROPER APPLICATION OF
SEC. 1341, WE GRANTED CERTIORARI.  361 U.S. 912. 

PETITIONERS' PRINCIPAL CONTENTIONS HERE ARE:  (1) THAT, ALTHOUGH THE
INDICTMENT CHARGED AND THE EVIDENCE TENDED TO SHOW THAT PETITIONERS
DEVISED AND PRACTICED A SCHEME TO DEFRAUD THE DISTRICT BY THE LOCAL OR
STATE CRIMES OF MISAPPROPRIATING AND EMBEZZLING ITS MONEY AND PROPERTY,
NEITHER THE INDICTMENT NOR THE PROOFS SUPPORT THE JUDGMENTS, BECAUSE
THE INDICTMENT DID NOT CHARGE, AND THE PROOFS DID NOT SHOW, ANY USE OF
THE MAILS "FOR THE PURPOSE OF EXECUTING SUCH SCHEME" WITHIN THE MEANING
OF THAT PHRASE AS USED IN SEC. 1341, AND (2) THAT THE COURT'S CHARGE
DID NOT SUBMIT TO THE JURY ANY THEORY OR ISSUE OF FACT THAT COULD
CONSTITUTE USE OF THE MAILS "FOR THE PURPOSE OF EXECUTING SUCH
SCHEME."  THE NATURE OF THESE CONTENTIONS REQUIRES A DETAILED
EXAMINATION OF THE INDICTMENT, THE EVIDENCE ADDUCED, AND OF THE ISSUES
OF FACT ACTUALLY TRIED AND SUBMITTED TO THE JURY, FOR ITS RESOLUTION,
BY THE COURT IN ITS CHARGE. 

WE TURN FIRST TO THE INDICTMENT.  SUMMARIZED AS BRIEFLY AS FAIR
STATEMENT PERMITS, THE FIRST COUNT ALLEGED THAT THE DISTRICT IS A
PUBLIC CORPORATION ORGANIZED UNDER THE LAWS OF TEXAS TO ACQUIRE AND
HOLD THE FACILITIES NECESSARY FOR, AND TO OPERATE, THE PUBLIC SCHOOLS
WITHIN THE DISTRICT, (FN5) AND, FOR THOSE PURPOSES, TO ASSESS AND
COLLECT TAXES; THAT THE LAWS OF TEXAS VEST EXCLUSIVE CONTROL OF THE
PROPERTY AND MANAGEMENT OF THE AFFAIRS OF THE DISTRICT IN ITS BOARD OF
TRUSTEES, CONSISTING OF SEVEN MEMBERS; THAT PRIOR TO SEPTEMBER 1, 1949,
PETITIONERS DEVISED, AND CONTINUED TO FEBRUARY 20, 1954, A SCHEME TO
DEFRAUD THE DISTRICT, THE STATE OF TEXAS, AND THE TAXPAYERS OF EACH,
AND TO OBTAIN THEIR MONEY AND PROPERTY FOR THEMSELVES AND THEIR
RELATIVES. 

IT THEN ALLEGED THAT, AS PART OF THE SCHEME, PETITIONERS WOULD
FALSELY REPRESENT THAT DISTRICT CHECKS WERE ISSUED, AND ITS FUNDS
DISBURSED, ONLY TO PERSONS AND CONCERNS FOR SERVICES RENDERED AND
MATERIALS FURNISHED TO THE DISTRICT, AND THAT ITS ANNUAL REPORTS TO THE
STATE COMMISSIONER OF EDUCATION WERE CORRECT. 

IT NEXT ALLEGED THAT, AS A FURTHER PART OF THE SCHEME, SEVEN OF THE
PETITIONERS WOULD ESTABLISH AND MAINTAIN DOMINATION AND CONTROL OF THE
DISTRICT; (FN6) THAT THREE OF THEM WOULD ACQUIRE AND MAINTAIN CONTROL
OF PETITIONER, THE TEXAS STATE BANK OF ALICE, WHICH WAS THE AUTHORIZED
DEPOSITORY OF THE DISTRICT'S FUNDS, (FN7) AND THAT ONE OF THEM WOULD
ACQUIRE AND MAINTAIN CONTROL OF PETITIONER, THE SAN DIEGO STATE BANK. 
(FN8) 

IT THEN ALLEGED THAT IT WAS A FURTHER PART OF THE SCHEME THAT
PETITIONERS WOULD SEND OR CAUSE TO BE SENT LETTERS, TAX STATEMENTS,
CHECKS IN PAYMENT OF TAXES, AND RECEIPTED TAX STATEMENTS, THROUGH THE
UNITED STATES MAILS; THAT THE CHECKS AND MONEYS RECEIVED BY THE
DISTRICT FROM TAXPAYERS AND OTHERS WOULD BE DEPOSITED TO THE CREDIT OF
THE DISTRICT IN THE AUTHORIZED DEPOSITORY BANK, AGAINST WHICH
PETITIONERS WOULD ISSUE DISTRICT CHECKS PAYABLE TO FICTITIOUS PERSONS,
AND TO EXISTING PERSONS, WITHOUT CONSIDERATION (FALSIFYING THE
DISTRICT'S RECORDS TO SHOW THAT SUCH CHECKS WERE ISSUED IN PAYMENT FOR
SERVICES OR MATERIALS), AND WOULD CASH SUCH CHECKS, UPON FORGED
ENDORSEMENTS OR WITHOUT ENDORSEMENTS OF THE PAYEES, AT THE DEPOSITORY
BANK AND CONVERT THE PROCEEDS; THAT THEY WOULD OPEN ACCOUNTS AND
DEPOSIT CHECKS RECEIVED IN PAYMENT OF TAXES IN UNAUTHORIZED BANKS, AND
THAT PETITIONER CHAPA WOULD WITHDRAW AND CONVERT THE FUNDS; THAT THEY
WOULD CONVERT AND CASH CHECKS RECEIVED BY THE DISTRICT IN PAYMENT OF
TAXES AND KEEP THE PROCEEDS; THAT THEY WOULD OBTAIN MERCHANDISE FOR
THEMSELVES ON THE CREDIT AND AT THE EXPENSE OF THE DISTRICT; THAT THEY
WOULD PREPARE, AND THE BOARD OF TRUSTEES WOULD APPROVE, FALSE ANNUAL
REPORTS OF THE DISTRICT AND MAIL THEM TO THE STATE COMMISSIONER OF
EDUCATION AT AUSTIN, TEXAS; THAT THEY WOULD CONCEAL THEIR FRAUDULENT
MISUSE OF DISTRICT FUNDS BY DESTROYING CANCELED CHECKS, BANK STATEMENTS
AND OTHER RECORDS OF THE DISTRICT AND THE MICROFILMED RECORDS OF THE
PETITIONER BANKS SHOWING THE FRAUDULENT CHECKS DRAWN AGAINST AND PAID
OUT OF THE DISTRICT'S ACCOUNTS. 

THE LAST PARAGRAPH OF THE COUNT - THE ONLY PARAGRAPH PURPORTING TO
CHARGE AN OFFENSE - CHARGED THAT PETITIONERS ON SEPTEMBER 29, 1952, FOR
THE PURPOSE OF EXECUTING THE SCHEME, CAUSED TO BE TAKEN FROM THE POST
OFFICE, IN THE HOUSTON DIVISION OF THE COURT, A LETTER ADDRESSED TO
HUMBLE OIL & REFINING COMPANY, HOUSTON, TEXAS.  (FN9) 

EACH OF COUNTS 2 THROUGH 19 ADOPTED BY REFERENCE ALL ALLEGATIONS OF
THE FIRST COUNT, EXCEPT THOSE CONTAINED IN THE LAST PARAGRAPH OF THAT
COUNT WHICH CHARGED A SPECIFIC OFFENSE AGAINST PETITIONERS, AND THEN
PROCEEDED TO ALLEGE THAT ON A STATED DATE THE PETITIONERS, FOR THE
PURPOSE OF EXECUTING THE SCHEME, "CAUSED" A PARTICULAR LETTER, TAX
STATEMENT, CHECK, TAX RECEIPT OR INVOICE TO BE PLACED IN OR TAKEN FROM
AN AUTHORIZED DEPOSITORY FOR UNITED STATES MAIL IN THE HOUSTON DIVISION
OF THE COURT.  (FN10)  DOUBTLESS THE CHARGE IN EACH OF THESE COUNTS WAS
SO LIMITED, IN THE LIGHT OF RULE 18 OF FEDERAL RULES OF CRIMINAL
PROCEDURE FIXING VENUE OVER CRIMES IN THE DISTRICT AND DIVISION WHERE
COMMITTED, (FN11) IN ORDER TO GIVE THE HOUSTON DIVISION VENUE OVER THIS
ACTION, AND CONSEQUENTLY THE INDICTMENT DOES NOT COUNT UPON
PETITIONERS' FULL USES OF THE MAILS, FOR THEY WERE PRINCIPALLY MADE IN
DUVAL COUNTY IN THE CORPUS CHRISTI DIVISION OF THE COURT. 

THE TWENTIETH COUNT CHARGED THAT THROUGHOUT THE RELEVANT PERIOD
PETITIONERS FELONIOUSLY CONSPIRED AND AGREED AMONG THEMSELVES AND WITH
OTHERS TO COMMIT "THE OFFENSES  ...  WHICH ARE FULLY DESCRIBED AND SET
OUT IN THE FIRST COUNT OF THIS INDICTMENT," AND THAT, TO EFFECT THE
OBJECT OF THE CONSPIRACY, PETITIONERS COMMITTED SPECIFIED OVERT ACTS. 
(FN12) 

WE NOW LOOK TO THE EVIDENCE.  CONDENSED TO PITH, THE 6,000 PAGES OF
EVIDENCE DISCLOSE THAT THE DISTRICT, ACTING THROUGH ITS BOARD OF
TRUSTEES OF SEVEN MEMBERS, OPERATED THE PUBLIC SCHOOLS IN THE TOWNS OF
BENAVIDES AND FREER, EACH HAVING SLIGHTLY MORE THAN 1,000 PUPILS.  FROM
TIME TO TIME THE BOARD MET TO APPOINT (A) AN ASSESSOR-COLLECTOR, (B) AN
INDEPENDENT FIRM OF ENGINEERS AND ACCOUNTANTS TO ASSIST THE ASSESSOR
COLLECTOR IN DETERMINING THE OWNERSHIP AND VALUATION OF PROPERTY -
PARTICULARLY MINERAL LANDS AND COMPLEX FRACTIONAL INTERESTS THEREIN -
IN THE DISTRICT, (C) A BOARD OF EQUALIZATION, AND (D) A DEPOSITORY OF
THE DISTRICT'S FUNDS, AND ALSO MET (E) TO CONSIDER AND PROPOSE TO THE
ELECTORATE THE AUTHORIZATION AND SALE OF BONDS IN 1949 ($265,000) AND
IN 1950 ($362,500) TO FINANCE THE CONSTRUCTION OF NEW SCHOOL
FACILITIES. 

IN ACTUAL OPERATIONS THE ENGINEERING-ACCOUNTING FIRM WOULD ANNUALLY
PREPARE AND SUBMIT TO THE ASSESSOR-COLLECTOR A LIST SHOWING THE
OWNERSHIP AND ITS APPRAISAL OF THE VALUE OF THE VARIOUS PROPERTIES AND
MINERAL INTERESTS IN THE DISTRICT, FROM WHICH, AFTER THE BOARD OF
EQUALIZATION HAD COMPLETED ITS WORK THEREON (IN JUNE AND JULY), THE
ASSESSOR-COLLECTOR WOULD PREPARE THE TAX ROLLS FOR THE CURRENT YEAR AND
THEREFROM PREPARE AND SEND OUT THE TAX STATEMENTS BY MAIL, AND ON
RECEIPT OF CHECKS IN PAYMENT OF TAXES (THE GREAT MAJORITY OF WHICH WERE
RECEIVED IN THE MAILS) WOULD - WITH EXCEPTIONS LATER NOTED - DEPOSIT
THEM TO THE CREDIT OF THE DISTRICT IN THE DEPOSITORY BANK, AND THEN
MAIL RECEIPTS TO THE TAXPAYERS. 

THREE MEMBERS OF THE BOARD RESIDED IN FREER, AND THE OTHER FOUR
RESIDED IN BENAVIDES.  ASIDE FROM THE MEETINGS FOR THE PURPOSES ABOVE
STATED, THE TRUSTEES RARELY MET AS A BOARD.  EACH GROUP, RATHER
INDEPENDENTLY, OPERATED THE SCHOOLS IN ITS TOWN, AND THE ACTUAL COSTS
OF OPERATION WERE ABOUT THE SAME IN EACH TOWN.  (FN13)  BUT THE
BENAVIDES MEMBERS HANDLED GENERALLY THE DAY-TO-DAY BUSINESS OF THE
DISTRICT, INCLUDING THE STAFFING AND OPERATION OF ITS OFFICE, THE
KEEPING OF ITS BOOKS AND RECORDS, THE MAKING OF ITS CONTRACTS, ITS
RELATIONS WITH THE ASSESSOR-COLLECTOR, THE ANNUAL REPORT TO THE STATE
COMMISSIONER OF EDUCATION (TO OBTAIN FROM THE STATE THE AMOUNT PER
PUPIL PRESCRIBED TO BE PAID TO SUCH SCHOOL DISTRICTS BY THE TEXAS LAW)
AND THE ROUTINE DISBURSEMENT OF ITS FUNDS. 

PETITIONERS SAENZ, GARZA AND GARCIA WERE THREE OF THE FOUR BENAVIDES
MEMBERS OF THE BOARD.  PETITIONERS OSCAR CARRILLO, SR., AND O.P.
CARRILLO WERE, RESPECTIVELY, THE SECRETARY OF AND THE ATTORNEY FOR THE
BOARD.  PETITIONER CHAPA WAS THE ASSESSOR-COLLECTOR.  PETITIONER PARR
WAS THE PRESIDENT AND PRINCIPAL STOCKHOLDER OF PETITIONER TEXAS STATE
BANK - THE AUTHORIZED DEPOSITORY OF THE DISTRICT'S FUNDS - AND OF
PETITIONER SAN DIEGO STATE BANK, AND THERE WAS EVIDENCE THAT, ALTHOUGH
HAVING NO OFFICIAL CONNECTION WITH THE DISTRICT, HE PRACTICALLY
DOMINATED AND CONTROLLED ITS AFFAIRS, KEPT ITS BOOKS AND RECORDS IN HIS
OFFICE, OUTSIDE THE DISTRICT, UNTIL JULY 1951, AND COUNTERSIGNED ALL
ITS CHECKS AFTER JUNE 1950.  PETITIONER DONALD WAS THE CASHIER AND
ADMINISTRATIVE MANAGER OF THE TEXAS STATE BANK, AND PETITIONER OLIVEIRA
WAS A DIRECTOR OF THAT BANK. 

THERE WAS EVIDENCE THAT THROUGHOUT THE RELEVANT PERIOD THE DISTRICT'S
FUNDS, IN LARGE AMOUNTS, WERE MISAPPROPRIATED, CONVERTED, EMBEZZLED AND
STOLEN BY PETITIONERS.  IT TENDED TO SHOW THAT FOUR DEVICES WERE USED
FOR SUCH PURPOSES: 

(1)  AT LEAST ONCE EACH MONTH NUMEROUS DISTRICT CHECKS WERE ISSUED
AGAINST BOTH ITS BUILDING AND MAINTENANCE ACCOUNTS IN THE DEPOSITORY
BANK PAYABLE TO FICTITIOUS PERSONS AND WERE PRESENTED IN BUNDLES,
TOTALING FROM $3,000 TO $12,000, TO THE DEPOSITORY BANK AND, UNDER THE
SUPERVISION OF PETITIONER DONALD, WERE CASHED BY IT, WITHOUT
ENDORSEMENTS, AND THE CURRENCY WAS PLACED AND SEALED IN AN ENVELOPE AND
HANDED TO THE PRESENTING PERSON FOR DELIVERY TO PETITIONER PARR.  THE
EVIDENCE TENDED TO SHOW THAT NO LESS THAN $120,000 OF THE DISTRICT'S
FUNDS WERE MISAPPROPRIATED IN THIS WAY.  HOWEVER, NO ONE OF THESE ACTS
IS CHARGED AS AN OFFENSE BY THE INDICTMENT. 

(2)  AT LEAST ONCE EACH MONTH LARGE NUMBERS OF DISTRICT CHECKS WERE
ISSUED TO PETITIONERS, OTHER THAN DONALD AND THE TWO BANKS, OFTEN IN
ASSUMED NAMES OR IN THE NAMES OF MEMBERS OF THEIR FAMILIES, PURPORTING
TO BE IN PAYMENT FOR SERVICES RENDERED OR MATERIALS FURNISHED TO THE
DISTRICT BUT WHICH WERE NOT RENDERED OR FURNISHED, WHICH CHECKS WERE
PRESENTED TO THE DEPOSITORY BANK AND, UNDER THE SUPERVISION OF
PETITIONER DONALD, WERE CASHED BY IT, OFTEN WITHOUT OR UPON FORGED
ENDORSEMENTS.  (FN14)  THE EVIDENCE TENDED TO SHOW THAT NO LESS THAN
$65,000 OF THE DISTRICT'S FUNDS WERE MISAPPROPRIATED IN THIS WAY.  BUT
AGAIN NO ONE OF THESE ACTS IS CHARGED AS AN OFFENSE BY THE INDICTMENT. 

(3)  PETITIONER CHAPA CONVERTED DISTRICT CHECKS RECEIVED BY MAIL IN
PAYMENT OF TAXES, CASHED THE SAME - SOME AT A LOCAL BANK AND SOME AT
THE DEPOSITORY BANK - UPON UNAUTHORIZED ENDORSEMENTS, AND
MISAPPROPRIATED THE PROCEEDS.  (FN15) 

(4)  PETITIONERS OSCAR CARRILLO, SR., AND GARZA OBTAINED GASOLINE AND
OIL FOR THEMSELVES UPON THE CREDIT CARD AND AT THE EXPENSE OF THE
DISTRICT.  (FN16)  USE OF THE MAILS BY "CAUSING" THE OIL COMPANY TO
PLACE ITS INVOICES FOR THESE GOODS IN THE MAILS AND TO TAKE THE
DISTRICT'S CHECK IN PAYMENT FROM THE MAILS IN HOUSTON, CONSTITUTES THE
BASIS OF COUNTS 17, 18 AND 19 OF THE INDICTMENT.  (FN17) 

THE LETTERS, CHECKS AND INVOICES WHICH COUNTS 1 THROUGH 19 OF THE
INDICTMENT CHARGE WERE "CAUSED" BY PETITIONERS TO BE PLACED IN OR TAKEN
FROM THE MAILS IN HOUSTON, WERE ALL OFFERED AND RECEIVED IN EVIDENCE. 
HAVING FULLY STATED THE SUBSTANCE OF THEM IN NOTES 9 AND 10, WE DO NOT
REPEAT IT HERE.  THE EVIDENCE ALSO TENDED TO PROVE THE OVERT ACTS
ALLEGED IN THE TWENTIETH COUNT OF THE INDICTMENT.  (FN18)    WE NOW
PROCEED TO EXAMINE THE COURT'S CHARGE TO DETERMINE WHAT THEORIES AND
ISSUES OF FACT WERE PREDICATED BY THE COURT AND SUBMITTED FOR
RESOLUTION BY THE JURY.  RELATIVE TO COUNTS 1 THROUGH 19 OF THE
INDICTMENT, THE COURT, AFTER REMINDING THE JURY THAT THE INDICTMENT HAD
BEEN READ TO THEM AT THE BEGINNING OF THE TRIAL AND THAT THEY WOULD
HAVE IT WITH THEM FOR STUDY DURING THEIR DELIBERATIONS IN THE JURY
ROOM, READ ALOUD SEC. 1341, DEFINED NUMEROUS WORDS AND PHRASES,
CAUTIONED ON MANY SCORES, INCLUDING THE WEIGHT TO BE GIVEN TO THE
TESTIMONY OF "ACCOMPLICES," STRESSED THE GOVERNMENT'S BURDEN OF PROOF,
AND THEN PROCEEDED TO GIVE THE ONE VERDICT-DIRECTING CHARGE COVERING
THOSE COUNTS WHICH, IN PERTINENT PART, WAS AS FOLLOWS: 

"APPLYING THE LAW TO THE FIRST 19 COUNTS OF THE INDICTMENT, IF YOU
BELIEVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT GEORGE B. PARR AND
THE OTHER DEFENDANTS CHARGED AND TRIABLE IN COUNT ONE OF THE INDICTMENT
CONSIDERING EACH SEPARATELY, DID THE THINGS THAT IT IS ALLEGED THAT HE
DID DO IN THE FIRST COUNT OF THE INDICTMENT, AND AT THE TIME THAT IT
OCCURRED THERE EXISTED A SCHEME TO DEFRAUD, AND THAT, AS A RESULT OF
SUCH SCHEME, THE MAILS WERE USED NECESSARILY OR INCIDENTALLY TO THE
CARRYING OUT OF THAT SCHEME, AND, AS A RESULT THEREOF,  ...  HE DID
CAUSE THE DEFRAUDING OR OBTAINING OF PROPERTY BY FALSE PRETENSES AND
REPRESENTATIONS IN ANY OF THE PARTICULARS SET FORTH THEREIN  ...  AND
THAT HE USED THE UNITED STATES MAILS AS SET FORTH IN COUNT ONE,  ...
THEN IT BECOMES YOUR DUTY  ...  TO FIND SUCH DEFENDANT OR DEFENDANTS
GUILTY AS CHARGED IN THE FIRST COUNT OF THE INDICTMENT AND SO FIND BY
YOUR VERDICT  ...  .  THE SAME REASONING AND INSTRUCTIONS APPLY TO EACH
OF THE FIRST NINETEEN COUNTS OF THE INDICTMENT AND AS TO EACH OF THE
DEFENDANTS CHARGED AND TRIABLE IN EACH OF THE FIRST NINETEEN COUNTS OF
THE INDICTMENT." 

RELATIVE TO THE TWENTIETH COUNT, THE COURT, AFTER READING TO THE JURY
SEC. 371, TELLING THEM THAT THE ESSENCE OF THE CHARGE "IS AN AGREEMENT
TO USE THE MAILS TO DEFRAUD," DEFINING "CONSPIRACY," COMMENTING ON
"CIRCUMSTANTIAL EVIDENCE," AND STRESSING THE GOVERNMENT'S BURDEN OF
PROOF, PROCEEDED TO GIVE THE ONE VERDICT-DIRECTING CHARGE COVERING THAT
COUNT WHICH, IN PERTINENT PART, WAS AS FOLLOWS: 

"THEREFORE, WITH REFERENCE TO THE 20TH COUNT, IF YOU BELIEVE AS TO
ANY OF THE ALLEGED CONSPIRATORS THAT THAT PERSON, TOGETHER WITH AT
LEAST ONE OTHER, DID THE THINGS CHARGED AGAINST HIM IN SUCH COUNT  ...
TO EFFECT THE OBJECTS OF THE ALLEGED CONSPIRACY, AND THEREAFTER THERE
WAS DONE ONE OR MORE OF THE OVERT ACTS SET FORTH IN SUCH COUNT  ...
THEN IT BECOMES YOUR DUTY UNDER THE LAW AS TO SUCH DEFENDANT OR
DEFENDANTS THAT YOU SO BELIEVE AS TO SUCH 20TH COUNT WERE GUILTY, TO SO
SAY BY YOUR VERDICT  ...  ."  (FN19) 

IN THE LIGHT OF THIS REVIEW OF THE INDICTMENT, THE EVIDENCE ADDUCED
AND THE COURT'S CHARGE TO THE JURY, WE RETURN TO THE QUESTIONS
PRESENTED BY PETITIONERS.  THERE CAN BE NO DOUBT THAT THE INDICTMENT
CHARGED AND THE EVIDENCE TENDED STRONGLY TO SHOW THAT PETITIONERS
DEVISED AND PRACTICED A BRAZEN SCHEME TO DEFRAUD BY MISAPPROPRIATING,
CONVERTING AND EMBEZZLING THE DISTRICT'S MONEYS AND PROPERTY.  COUNSEL
FOR PETITIONERS CONCEDE THAT THIS IS SO.  BUT, AS THEY CORRECTLY SAY,
THESE WERE ESSENTIALLY STATE CRIMES AND COULD BECOME FEDERAL ONES,
UNDER THE MAIL FRAUD STATUTE, ONLY IF THE MAILS WERE USED "FOR THE
PURPOSE OF EXECUTING SUCH SCHEME."  (FN20)  HENCE, THE QUESTION IS
WHETHER THE USES OF THE MAILS THAT WERE CHARGED IN THE INDICTMENT AND
SHOWN BY THE EVIDENCE PROPERLY MAY BE SAID TO HAVE BEEN "FOR THE
PURPOSE OF EXECUTING SUCH SCHEME," IN VIOLATION OF SEC. 1341. 
PETITIONERS SAY "NO."  THE GOVERNMENT SAYS "YES." 

SPECIFICALLY, PETITIONERS' POSITION IS THAT THE SCHOOL BOARD WAS
REQUIRED BY LAW TO ASSESS AND COLLECT TAXES FOR THE ACQUISITION OF
FACILITIES FOR, AND TO MAINTAIN AND OPERATE, THE DISTRICT'S SCHOOLS;
THAT THE TAXES, ASSESSED IN OBEDIENCE TO THAT DUTY AND FOR THOSE
PURPOSES, WERE NOT CHARGED IN THE INDICTMENT OR SHOWN BY THE EVIDENCE
TO HAVE BEEN IN ANY WAY ILLEGAL, AND MUST THEREFORE BE ASSUMED TO HAVE
BEEN ENTIRELY LAWFUL; THAT TO PERFORM ITS DUTY TO ASSESS AND COLLECT
SUCH TAXES, THE BOARD WAS BOTH LEGALLY AUTHORIZED AND COMPELLED TO
CAUSE THE MAILING OF THE LETTERS AND THEIR ENCLOSURES (TAX STATEMENTS,
CHECKS AND RECEIPTS) COMPLAINED OF IN THE INDICTMENT, AND HENCE THOSE
MAILINGS MAY NOT BE SAID TO HAVE BEEN "FOR THE PURPOSE OF EXECUTING
SUCH SCHEME," IN VIOLATION OF SEC. 1341. 

THE GOVERNMENT, ON THE OTHER HAND, CONTENDS, FIRST, THAT IT WAS NOT
NECESSARY TO CHARGE OR PROVE THAT THE TAXES WERE UNLAWFUL, FOR IT IS
ITS VIEW THAT ONCE THE SCHEME TO DEFRAUD WAS SHOWN TO EXIST, THE
SUBSEQUENT MAILINGS OF THE LETTERS AND THEIR ENCLOSURES, EVEN THOUGH
LEGALLY COMPELLED TO BE MADE, CONSTITUTED ESSENTIAL STEPS IN THE SCHEME
AND, IN CONTEMPLATION OF SEC.  1341, WERE MADE "FOR THE PURPOSE OF
EXECUTING SUCH SCHEME"; BUT IT ASSERTS THAT, IN FACT, IT WAS IMPLIEDLY
CHARGED IN THE INDICTMENT AND SHOWN BY THE EVIDENCE THAT THE TAXES WERE
ILLEGAL IN THAT THEY WERE ASSESSED, COLLECTED AND ACCUMULATED IN EXCESS
OF THE DISTRICT'S NEEDS IN ORDER TO PROVIDE A FUND FOR
MISAPPROPRIATION, AND, SECOND, THAT THE INDICTMENT CHARGED AND THE
EVIDENCE SHOWED THAT THE MAILINGS IMPLIEDLY PRETENDED AND FALSELY
REPRESENTED THAT THE TAX MONEYS WOULD BE USED ONLY FOR LAWFUL PURPOSES,
AND, HENCE, THOSE MAILINGS WERE CAUSED FOR THE PURPOSE OF OBTAINING
MONEY BY FALSE PRETENSES AND MISREPRESENTATIONS, IN VIOLATION OF SEC.
1341. 

AFTER ASSERTING COMPLETE NOVELTY OF THE GOVERNMENT'S POSITION AND
THAT NO REPORTED CASE SUPPORTS IT, COUNSEL FOR PETITIONERS POINT TO
WHAT THEY THINK WOULD BE THE "EXPLOSIVELY EXPANDED" AND INCONGRUOUS
RESULTS FROM ADOPTION OF THE GOVERNMENT'S THEORY, E.G., MAKING FEDERAL
MAIL FRAUD CASES OUT OF THE CONDUCT OF A DOCTOR'S SECRETARY OR A
BUSINESS CONCERN'S BILLING CLERK OR CASHIER IN MAILING OUT, IN THE
COURSE OF DUTY, THE EMPLOYER'S LAWFUL STATEMENTS WITH THE DESIGN,
EVENTUALLY EXECUTED, OF MISAPPROPRIATING PART OF THE RECEIPTS - THE
APTNESS OF WHICH SUPPOSED ANALOGIES, HAPPILY, WE ARE NOT CALLED ON TO
DETERMINE.  BUT PETITIONERS' COUNSEL CONCEDE THAT IF SUCH SECRETARY,
CLERK OR CASHIER - AND SIMILARLY A MEMBER OF A SCHOOL BOARD -
IMPROPERLY "PADS" OR INCREASES THE AMOUNTS OF THE STATEMENTS AND CAUSES
THEM TO BE MAILED TO BRING IN A FUND TO BE LOOTED, SUCH MAILINGS, NOT
BEING THOSE OF THE EMPLOYER (OR SCHOOL BOARD), WOULD NOT BE DUTY BOUND
OR LEGALLY COMPELLED AND WOULD CONSTITUTE AN ESSENTIAL STEP "FOR THE
PURPOSE OF EXECUTING A SCHEME" TO DEFRAUD, IN VIOLATION OF SEC. 1341. 
THEY THEN REPEAT AND STRESS THEIR CLAIM THAT HERE THE INDICTMENT DID
NOT ALLEGE, AND THERE WAS NO EVIDENCE TENDING TO SHOW, THAT THE TAXES
ASSESSED AND COLLECTED WERE EXCESSIVE, "PADDED" OR IN ANY WAY ILLEGAL,
THAT THE COURT DID NOT SUBMIT ANY SUCH ISSUE TO THE JURY AND THAT SUCH
WAS NOT THE GOVERNMENT'S THEORY. 

IT IS CLEAR AND UNDISPUTED THAT THE SCHOOL BOARD WAS UNDER AN EXPRESS
CONSTITUTIONAL MANDATE TO LEVY AND COLLECT TAXES FOR THE ACQUISITION OF
FACILITIES FOR, AND TO MAINTAIN AND OPERATE, THE SCHOOLS OF THE
DISTRICT, CONSTITUTION OF TEXAS, ART. 7, SEC. 3, (FN21) AND WAS
REQUIRED BY STATUTE TO ISSUE STATEMENTS FOR SUCH TAXES AND TO DELIVER
RECEIPTS UPON PAYMENT.  (FN22) 

THE TEXAS LAWS LEAVE TO THE DISCRETION OF SUCH SCHOOL BOARDS THE
VALUATION OF PROPERTIES AND THE FIXING OF THE TAX RATE, WITHIN A
PRESCRIBED LIMIT, IN THE MAKING OF THEIR ASSESSMENTS, (FN23) AND THEIR
DETERMINATIONS, MADE WITHIN THE PRESCRIBED LIMIT AS HERE, ARE NOT
JUDICIALLY REVIEWABLE, MADELEY V. TRUSTEES OF CONROE IND. SCHOOL DIST.,
130 S.W.2D 929, 934 (TEX. CIV. APP.), EXCEPT ENFORCEMENT MAY BE
ENJOINED FOR FRAUD.  (FN24)  BUT THE QUESTION WHETHER THE AMOUNT OF
SUCH AN ASSESSMENT MIGHT BE COLLATERALLY ATTACKED, EVEN FOR FRAUD, IN A
FEDERAL MAIL FRAUD CASE IS NOT PRESENTED HERE, FOR AFTER A MOST CAREFUL
EXAMINATION WE ARE COMPELLED TO SAY THAT THE INDICTMENT DID NOT
EXPRESSLY OR IMPLIEDLY CHARGE, AND THERE WAS NO EVIDENCE TENDING TO
SHOW, THAT THE TAXES ASSESSED WERE EXCESSIVE, "PADDED" OR IN ANY WAY
ILLEGAL.  NOR DID THE COURT SUBMIT ANY SUCH ISSUE TO THE JURY.  INDEED,
THE COURT REFUSED A CHARGE PROFFERED BY COUNSEL FOR PETITIONERS THAT
WOULD HAVE SUBMITTED THAT ISSUE TO THE JURY.  (FN25)  SUCH WAS NOT THE
GOVERNMENT'S THEORY.  IN FACT, THE GOVERNMENT TOOK THE POSITION AT THE
TRIAL, AND ARGUED TO THE JURY, THAT THE TAXES ASSESSED AND COLLECTED
WERE NEEDED BY THE DISTRICT FOR A NEW "SCIENCE HALL," "OFFICE
BUILDING," "PLUMBING FACILITIES AND ALL SORTS OF THINGS," AND THAT
PETITIONERS' MISAPPROPRIATIONS NOT ONLY DEPRIVED THE DISTRICT OF THOSE
NEEDED THINGS BUT LEFT IT "TWO AND ONE-HALF YEARS IN DEBT" - A SUM
SEVERAL TIMES GREATER THAN THAT SAID TO HAVE BEEN MISAPPROPRIATED BY
PETITIONERS. 

THE THEORY THAT IT WAS IMPLIEDLY CHARGED AND SHOWN THAT THE TAXES
WERE ILLEGAL IN THAT THEY WERE ASSESSED, COLLECTED AND ACCUMULATED IN
EXCESS OF THE DISTRICT'S NEEDS IN ORDER TO PROVIDE A FUND FOR
MISAPPROPRIATION, WAS FIRST INJECTED INTO THE CASE BY THE COURT OF
APPEALS.  THAT COURT RESTED ITS JUDGMENT LARGELY UPON ITS CONCLUSION
THAT THE ASSESSMENTS WERE DESIGNED TO BRING IN NOT ONLY "ENOUGH MONEY
...  TO PROVIDE FOR THE LEGITIMATE OPERATION OF THE SCHOOLS BUT ALSO
ENOUGH ADDITIONAL  ... TO PROVIDE THE FUNDS TO BE LOOTED."  265 F.2D,
AT 897.  WE THINK THAT THEORY AND CONCLUSION IS NOT SUPPORTED BY THE
RECORD.  AS STATED, NO SUCH FACT OR THEORY WAS CHARGED IN THE
INDICTMENT, SHOWN BY THE EVIDENCE OR SUBMITTED TO THE JURY, AND
MOREOVER THE GOVERNMENT NEGATIVED ANY SUCH POSSIBLE IMPLICATION BY
TAKING THE POSITION AT THE TRIAL THAT THE ASSESSED TAXES WERE NEEDED
FOR NEW SCHOOL FACILITIES AND IMPROVEMENTS AND THAT THE
MISAPPROPRIATIONS DEPRIVED THE DISTRICT OF THOSE NEEDED THINGS AND LEFT
IT "TWO AND ONE-HALF YEARS IN DEBT." 

NOR DOES THE GOVERNMENT QUESTION THAT THE BOARD, TO COLLECT THE
DISTRICT'S TAXES (LARGELY FROM NONRESIDENT PROPERTY OWNERS), WAS
REQUIRED BY THE STATE LAW TO USE THE MAILS.  INDEED, IT TOOK THE
POSITION AT THE TRIAL, AND ARGUED TO THE JURY, THAT THE BOARD COULD NOT
"COLLECT THESE TAXES FROM HOUSTON, FROM THE HUMBLE, FROM THE TEXAS OIL
COMPANY, AND FROM THE TAXPAYERS ALL OVER THE STATE OF TEXAS WITHOUT THE
USE OF THE UNITED STATES MAILS."  THE COURT OF APPEALS THOUGHT THAT
SUCH LEGAL COMPULSION PLACED PETITIONERS "ON THE HORNS OF A DILEMMA"
BECAUSE THEY COULD NOT AT ONCE CONTEND THAT THE LAW COMPELLED THEM TO
CAUSE THE MAILINGS AND DENY THAT THEY DID CAUSE THEM.  265 F.2D, AT
898. 

THE CRUCIAL QUESTION, RESPECTING COUNTS 1 THROUGH 16 OF THE
INDICTMENT, THEN COMES DOWN TO WHETHER THE LEGALLY COMPELLED MAILINGS
OF THE LAWFUL - OR, MORE PROPERLY, WHAT ARE NOT CHARGED OR SHOWN TO
HAVE BEEN UNLAWFUL - LETTERS, TAX STATEMENTS, CHECKS AND RECEIPTS,
COMPLAINED OF IN THOSE COUNTS, PROPERLY MAY BE SAID TO HAVE BEEN FOR
THE PURPOSE OF EXECUTING A SCHEME TO DEFRAUD BECAUSE THOSE LEGALLY
COMPELLED TO CAUSE AND CAUSING THOSE MAILINGS PLANNED TO STEAL AN
INDEFINITE PART OF THE RECEIPTS. 

THE FACT THAT A SCHEME MAY VIOLATE STATE LAWS DOES NOT EXCLUDE IT
FROM THE PROSCRIPTIONS OF THE FEDERAL MAIL FRAUD STATUTE, FOR CONGRESS
"MAY FORBID ANY  ...  MAILINGS  ...  IN FURTHERANCE OF A SCHEME THAT IT
REGARDS AS CONTRARY TO PUBLIC POLICY, WHETHER IT CAN FORBID THE SCHEME
OR NOT."  BADDERS V. UNITED STATES, 240 U.S. 391, 393.  IN EXERCISE OF
THAT POWER, CONGRESS ENACTED SEC. 1341 FORBIDDING AND MAKING CRIMINAL
ANY USE OF THE MAILS "FOR THE PURPOSE OF EXECUTING A SCHEME" TO DEFRAUD
OR TO OBTAIN MONEY BY FALSE REPRESENTATIONS - LEAVING GENERALLY THE
MATTER OF WHAT CONDUCT MAY CONSTITUTE SUCH A SCHEME FOR DETERMINATION
UNDER OTHER LAWS.  ITS PURPOSE WAS "TO PREVENT THE POST OFFICE FROM
BEING USED TO CARRY SUCH SCHEMES INTO EFFECT  ...  ."  DURLAND V.
UNITED STATES, 161 U.S. 306, 314.  THUS, AS ITS TERMS AND PURPOSE MAKE
CLEAR, "THE FEDERAL MAIL FRAUD STATUTE DOES NOT PURPORT TO REACH ALL
FRAUDS, BUT ONLY THOSE LIMITED INSTANCES IN WHICH THE USE OF THE MAILS
IS A PART OF THE EXECUTION OF THE FRAUD, LEAVING ALL OTHER CASES TO BE
DEALT WITH BY APPROPRIATE STATE LAW."  KANN V. UNITED STATES, 323 U.S.
88, 95.  THEREFORE, ONLY IF THE MAILINGS WERE "A PART OF THE EXECUTION
OF THE FRAUD," OR, AS WE SAID IN PEREIRA V. UNITED STATES, 347 U.S. 1,
8, WERE "INCIDENT TO AN ESSENTIAL PART OF THE SCHEME," DO THEY FALL
WITHIN THE BAN OF THE FEDERAL MAIL FRAUD STATUTE. 

THE GOVERNMENT, WITH THE SUPPORT OF THE CASES, SOUNDLY ARGUES THAT
IMMUNIZATION FROM THE BAN OF THE STATUTE IS NOT EFFECTED BY THE FACT
THAT THOSE CAUSING THE MAILINGS WERE PUBLIC OFFICIALS (FN26) OR BY THE
FACT THAT THE THINGS THEY CAUSED TO BE MAILED WERE "INNOCENT IN
THEMSELVES," IF THEIR MAILING WAS "A STEP IN A PLOT."  BADDERS V.
UNITED STATES, SUPRA, AT 394.  (FN27)  IT THEN ARGUES THAT THE JURY
PROPERLY COULD FIND THAT THE MAILINGS, COMPLAINED OF IN THE FIRST 16
COUNTS - NAMELY, THE LETTER NOTICE OF A MODIFICATION IN ASSESSED
VALUATION, TWO LETTERS GIVING NOTICE OF HEARINGS BEFORE THE BOARD OF
EQUALIZATION TO DETERMINE TAXABLE VALUE OF PROPERTY, ONE LETTER
COMPLYING WITH A PROPERTY OWNER'S REQUEST FOR AN "AUXILIARY TAX
NOTICE," AND 12 CHECKS OF TAXPAYERS AND THEIR LETTERS OF TRANSMITTAL
(FN28) - WERE, EVEN IF INNOCENT IN THEMSELVES, EACH "A STEP IN A PLOT"
OR SCHEME TO DEFRAUD, AND THAT THEY WERE CAUSED TO BE MADE "FOR THE
PURPOSE OF EXECUTING SUCH SCHEME" IN VIOLATION OF SEC. 1341.  BUT IT
CITES NO CASE HOLDING THAT THE MAILING OF A THING WHICH THE LAW
REQUIRED TO BE MAILED MAY BE REGARDED AS MAILED FOR THE PURPOSE OF
EXECUTING A PLOT OR SCHEME TO DEFRAUD.  INSTEAD, IT FRANKLY CONCEDES
THAT THERE IS NO SUCH CASE.  IT SAYS THAT "THERE IS NO REPORTED CASE
EXACTLY LIKE THIS," BUT EXPRESSES ITS VIEW THAT THIS CASE RESTS ON A
FACTUALLY "UNIQUE SITUATION."    WE AGREE THAT THE FACTUAL SITUATION IS
UNIQUE, AND, OF COURSE, AGREE, TOO, THAT THE FACT THERE IS NO REPORTED
DECISION INVOLVING SIMILAR FACTUAL CIRCUMSTANCES OR LEGAL THEORIES IS
NOT DETERMINATIVE.   BUT IN THE LIGHT OF THE PARTICULAR CIRCUMSTANCES
OF THIS CASE, AND ESPECIALLY OF THE FACTS (1) THAT THE SCHOOL BOARD WAS
LEGALLY REQUIRED TO ASSESS AND COLLECT TAXES, (2) THAT THE INDICTMENT
DID NOT CHARGE NOR THE PROOFS SHOW THAT THE TAXES ASSESSED AND
COLLECTED WERE IN EXCESS OF THE DISTRICT'S NEEDS OR THAT THEY WERE
"PADDED" OR IN ANY WAY UNLAWFUL, (3) THAT NO SUCH ISSUE WAS SUBMITTED
TO, NOR, HENCE, DETERMINED BY, THE JURY, (4) THAT THE BOARD WAS
COMPELLED TO COLLECT AND RECEIPT FOR THE TAXES BY STATE LAW, WHICH, IN
THE CIRCUMSTANCES HERE, COMPELLED IT TO USE AND CAUSE (HERE,
PRINCIPALLY BY PERMITTING) THE USE OF THE MAILS FOR THOSE PURPOSES, WE
MUST CONCLUDE THAT THE LEGALLY COMPELLED MAILINGS, COMPLAINED OF IN THE
FIRST 16 COUNTS OF THE INDICTMENT, WERE NOT SHOWN TO HAVE BEEN UNLAWFUL
"STEPS IN A PLOT," BADDERS V. UNITED STATES, SUPRA, 240 U.S., AT 394,
"PARTS OF THE EXECUTION OF THE FRAUD," KANN V. UNITED STATES, SUPRA,
323 U.S., AT 95, "INCIDENT TO AN ESSENTIAL PART OF THE SCHEME," PEREIRA
V. UNITED STATES, SUPRA, 347 U.S., AT 8, OR TO HAVE BEEN MADE "FOR THE
PURPOSE OF EXECUTING SUCH SCHEME," WITHIN THE MEANING OF SEC. 1341, FOR
WE THINK IT CANNOT BE SAID THAT MAILINGS MADE OR CAUSED TO BE MADE
UNDER THE IMPERATIVE COMMAND OF DUTY IMPOSED BY STATE LAW ARE CRIMINAL
UNDER THE FEDERAL MAIL FRAUD STATUTE, EVEN THOUGH SOME OF THOSE WHO ARE
SO REQUIRED TO DO THE MAILING FOR THE DISTRICT PLAN TO STEAL, WHEN OR
AFTER RECEIVED, SOME INDEFINITE PART OF ITS MONEYS. 

NOR, IN THE LIGHT OF THE FACTS IN THIS RECORD, CAN IT BE SAID THAT
THE MAILINGS COMPLAINED OF IN THE FIRST 16 COUNTS OF THE INDICTMENT
CONSTITUTED FALSE PRETENSES AND MISREPRESENTATIONS TO OBTAIN MONEY. 
SURELY THE LETTERS GIVING NOTICE OF THE MODIFICATION OF AN ASSESSED
VALUATION AND OF VALUATION HEARINGS TO BE CONDUCTED BY THE BOARD OF
EQUALIZATION, CONSTITUTING THE BASIS OF COUNTS 1, 2 AND 5, CONTAINED NO
FALSE PRETENSE OR MISREPRESENTATION.  WE FAIL TO SEE HOW THE LETTER
COMPLYING WITH A PROPERTY OWNER'S REQUEST FOR AN "AUXILIARY TAX
NOTICE," CONSTITUTING THE BASIS OF COUNT 7, COULD BE SAID TO BE A
MISREPRESENTATION.  AND THE MAILINGS COMPLAINED OF IN THE REMAINING
COUNTS, EVEN THOUGH "CAUSED" BY PETITIONERS, CERTAINLY CARRIED NO
MISREPRESENTATIONS BY PETITIONERS FOR THEY WERE CHECKS (AND COVERING
LETTERS) OF TAXPAYERS IN PAYMENT OF TAXES WHICH, SO FAR AS THIS RECORD
SHOWS, WERE IN ALL RESPECTS LAWFUL OBLIGATIONS.  ON THIS PHASE OF THE
CASE, THE GOVERNMENT HAS PRINCIPALLY RELIED ON THE FACT THAT THE ANNUAL
REPORTS OF THE BOARD AND THE DEPOSITORY BANK TO THE STATE COMMISSIONER
OF EDUCATION, APPARENTLY NECESSARY TO OBTAIN THE AMOUNT PER PUPIL
ALLOWED BY THE STATE TO SUCH DISTRICTS, CONTAINED FALSE ENTRIES.  BUT
THE FACT IS THOSE MAILINGS WERE NOT CHARGED AS OFFENSES IN THE
INDICTMENT, DOUBTLESS BECAUSE THEY WERE, AS SHOWN, BETWEEN BENAVIDES
AND AUSTIN, TEXAS, AND THEREFORE NOT WITHIN THE DIVISION, NOR HENCE THE
VENUE, OF THE COURT.  (FN29) 

COUNTS 17, 18 AND 19 OF THE INDICTMENT RELATE TO A DIFFERENT
SUBJECT.  THEY CHARGED, AND THERE WAS EVIDENCE TENDING TO SHOW, THAT
PETITIONERS OSCAR CARRILLO, SR., AND GARZA FRAUDULENTLY OBTAINED
GASOLINE AND OTHER FILLING STATION PRODUCTS AND SERVICES FOR THEMSELVES
UPON THE CREDIT CARD AND AT THE EXPENSE OF THE DISTRICT KNOWING, OR
CHARGED WITH KNOWLEDGE, THAT THE OIL COMPANY WOULD USE THE MAILS IN
BILLING THE DISTRICT FOR THOSE THINGS.  THE MAILINGS COMPLAINED OF IN
THOSE COUNTS WERE TWO INVOICES, SAID TO CONTAIN AMOUNTS FOR ITEMS SO
PROCURED BY CARRILLO AND GARZA, MAILED BY THE OIL COMPANY, AT HOUSTON,
TO THE DISTRICT, AT BENAVIDES, AND THE DISTRICT'S CHECK MAILED TO THE
OIL COMPANY, AT HOUSTON, IN PAYMENT OF THE LATTER INVOICE.  WE THINK
THESE COUNTS ARE RULED BY KANN V. UNITED STATES, SUPRA.  HERE, AS IN
KANN, "THE SCHEME IN EACH CASE HAD REACHED FRUITION" WHEN CARRILLO AND
GARZA RECEIVED THE GOODS AND SERVICES COMPLAINED OF.  "THE PERSONS
INTENDED TO RECEIVE THE GOODS AND SERVICES HAD RECEIVED THEM
IRREVOCABLY.  IT WAS IMMATERIAL TO THEM, OR TO ANY CONSUMMATION OF THE
SCHEME, HOW THE OIL COMPANY  ...  WOULD COLLECT FROM THE DISTRICT.  IT
CANNOT BE SAID THAT THE MAILINGS IN QUESTION WERE FOR THE PURPOSE OF
EXECUTING THE SCHEME, AS THE STATUTE REQUIRES."  323 U.S., AT 94. 

INASMUCH AS THE TWENTIETH COUNT CHARGED PETITIONERS WITH CONSPIRING
TO COMMIT THE OFFENSE COMPLAINED OF IN COUNT 1, AND INASMUCH AS, ON THE
FACTS OF THIS RECORD, THAT COUNT CANNOT BE SUSTAINED, IT FOLLOWS THAT
PETITIONERS' CONVICTIONS UPON THE TWENTIETH COUNT CANNOT STAND. 

IN VIEW OF OUR STATED CONCLUSIONS, IT IS UNNECESSARY TO DISCUSS OTHER
CONTENTIONS MADE BY PETITIONERS. 

THE STRONGEST ELEMENT IN THE GOVERNMENT'S CASE IS THAT PETITIONERS'
BEHAVIOR WAS SHOWN TO HAVE BEEN SO BAD AND BRAZEN, WHICH, COUPLED WITH
THE INABILITY OR AT LEAST THE FAILURE OF THE STATE AUTHORITIES TO BRING
THEM TO JUSTICE, (FN30) DOUBTLESS PERSUADED THE GOVERNMENT TO UNDERTAKE
THIS PROSECUTION.  BUT THE SHOWING, HOWEVER CONVINCING, THAT STATE
CRIMES OF MISAPPROPRIATION, CONVERSION, EMBEZZLEMENT AND THEFT WERE
COMMITTED DOES NOT ESTABLISH THE FEDERAL CRIME OF USING THE MAILS TO
DEFRAUD, AND, UNDER OUR VAUNTED LEGAL SYSTEM, NO MAN, HOWEVER BAD HIS
BEHAVIOR, MAY BE CONVICTED OF A CRIME OF WHICH HE WAS NOT CHARGED,
PROVEN AND FOUND GUILTY IN ACCORDANCE WITH DUE PROCESS.  REVERSED. 

FN1  THE PETITIONERS ARE GEORGE B. PARR, D.C. CHAPA, B.F. DONALD,
OCTAVIO SAENZ, JESUS G. GARZA, SANTIAGO GARCIA, OSCAR CARRILLO, SR.,
O.P. CARRILLO, JESUS OLIVEIRA, TEXAS STATE BANK OF ALICE AND SAN DIEGO
STATE BANK, ALL OF DUVAL COUNTY, TEXAS, IN THE CORPUS CHRISTI DIVISION
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DIVISION OF
TEXAS. 

FN2  SECTION 1341 PROVIDES, IN PERTINENT PART, AS FOLLOWS: 

"WHOEVER, HAVING DEVISED  ...  ANY SCHEME OR ARTIFICE TO DEFRAUD, OR
FOR OBTAINING MONEY OR PROPERTY BY MEANS OF FALSE OR FRAUDULENT
PRETENSES  ... FOR THE PURPOSE OF EXECUTING SUCH SCHEME ...  PLACES IN
ANY POST OFFICE OR AUTHORIZED DEPOSITORY FOR MAIL MATTER, ANY MATTER
...  TO BE SENT OR DELIVERED BY THE POST OFFICE DEPARTMENT, OR TAKES OR
RECEIVES THEREFROM, ANY SUCH MATTER OR THING, OR KNOWINGLY CAUSES TO BE
DELIVERED BY MAIL ACCORDING TO THE DIRECTION THEREON  ...  ANY SUCH
MATTER OR THING, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT
MORE THAN FIVE YEARS, OR BOTH."  18 U.S.C. SEC. 1341. 

FN3  SECTION 371 PROVIDES, IN PERTINENT PART, AS FOLLOWS: 

"IF TWO OR MORE PERSONS CONSPIRE  ...  TO COMMIT ANY OFFENSE AGAINST
THE UNITED STATES,  ...  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  ...  ."  18
U.S.C. SEC. 371. 

FN4                                     COUNTS ON WHICH

   NAMES                                 CONVICTED
SENTENCES 

GEORGE B. PARR                    ALL                       AGGREGATE
OF 10 YEARS AND

                   $20,000 FINE. 

D.C. CHAPA                        ALL                       AGGREGATE
OF 5 YEARS. 

B.F. DONALD                               1-14, 17-20
AGGREGATE OF 4 YEARS. 

JESUS G. GARZA                            ALL BUT 7
3 YEARS, BUT SUSPENDED ON

                              PROBATION. 

SANTIAGO GARCIA                         4, 5, 8, 13, 14,
3 YEARS, BUT SUSPENDED ON

15, 17-19                      PROBATION. 

OCTAVIO SAENZ                              ALL BUT 7
AGGREGATE OF 3 YEARS. 

OSCAR CARRILLO, SR.     ALL                       AGGREGATE OF 4
YEARS. 

O.P. CARRILLO                                 20   2 YEARS, BUT
SUSPENDED ON

                                       PROBATION. 

JESUS OLIVEIRA                                20    2 YEARS, BUT
SUSPENDED ON

                                        PROBATION, AND FINE OF

              $7,000. 

TEXAS STATE BANK 

OF ALICE                                  ALL
FINE OF $2,000. 

SAN DIEGO STATE                          1-3, 7, 10-12,
FINE OF $900. 

BANK                         16, 20 

FN5  THE DISTRICT OPERATES THE PUBLIC SCHOOLS IN THE TOWNS OF
BENAVIDES AND FREER IN DUVAL COUNTY, TEXAS.  THE SCHOOLS IN EACH TOWN
HAVE SLIGHTLY MORE THAN 1,000 PUPILS. 

FN6  THE PERSONS NAMED IN THE ALLEGATION WERE PETITIONERS PARR,
CHAPA, OSCAR CARRILLO, SR., O.P. CARRILLO, SAENZ, GARZA AND GARCIA. 

FN7  THE PERSONS NAMED IN THE ALLEGATION WERE PETITIONERS PARR,
DONALD AND OLIVEIRA. 

FN8  THE ALLEGATION WAS THAT CONTROL OF THE SAN DIEGO STATE BANK
WOULD BE MAINTAINED BY PETITIONER PARR. 

FN9  THE LETTER REFERRED TO WAS ONE BY THE DISTRICT OF SEPTEMBER 26,
1952, TO HUMBLE OIL & REFINING CO., HOUSTON, TEXAS, GIVING NOTICE OF A
MODIFICATION IN THE ASSESSED VALUE OF THE LATTER'S PROPERTY IN THE
DISTRICT TO $2,542,920 FOR THE YEAR 1952, AND ADVISING THAT THE AMOUNT
OF TAX, AT THE RATE OF $1.75 PER $100, WAS $44,501.10. 

FN10  THE SECOND COUNT DESCRIBED A LETTER BY THE SECRETARY OF THE
BOARD OF EQUALIZATION OF THE DISTRICT, DATED JULY 18, 1952, TO HUMBLE
OIL AND REFINING CO., HOUSTON, TEXAS, GIVING NOTICE OF A HEARING TO BE
HELD BY THAT BOARD AT BENAVIDES ON AUG. 1, 1952, TO DETERMINE THE
TAXABLE VALUE OF THE LATTER'S LANDS IN THE DISTRICT FOR THE YEAR 1952. 

THE THIRD COUNT DESCRIBED A CHECK OF HUMBLE OIL & REFINING CO.,
HOUSTON, TEXAS, DATED SEPT. 26, 1952, PAYABLE TO THE TAX COLLECTOR IN
THE AMOUNT OF $43,166.07, AND THE ACCOMPANYING LETTER OF THE TAXPAYER,
DATED SEPT. 29, 1952, ADVISING THAT THE ATTACHED CHECK WAS IN PAYMENT
OF "THE CORRECT TAXES OF $44,501.10" ON THE TAXPAYER'S PROPERTY IN THE
DISTRICT FOR 1952, LESS "THE 3 PER CENT DISCOUNT FOR SEPTEMBER PAYMENT
OF $1,335.03 LEAVING A NET OF $43,166.07 AS EVIDENCED BY OUR CHECK." 

THE FOURTH COUNT DESCRIBED A CHECK OF HUMBLE OIL & REFINING CO.,
HOUSTON, TEXAS, DATED SEPT.  24, 1953, PAYABLE TO THE TAX COLLECTOR IN
THE AMOUNT OF $53,807.35, AND THE ACCOMPANYING LETTER OF THE TAXPAYER,
DATED SEPT. 24, 1953, ADVISING THAT THE ATTACHED CHECK WAS IN PAYMENT
OF TAXES FOR THE YEAR 1953. 

THE FIFTH COUNT DESCRIBED A LETTER BY THE SECRETARY OF THE BOARD OF
EQUALIZATION, DATED MAY 20, 1953, TO HUMBLE OIL & REFINING CO.,
HOUSTON, TEXAS, GIVING NOTICE OF A HEARING TO BE HELD BY THAT BOARD AT
BENAVIDES ON JUNE 2, 1953, TO DETERMINE THE TAXABLE VALUE OF THE
LATTER'S PROPERTY IN THE DISTRICT FOR THE YEAR 1953. 

THE SIXTH COUNT DESCRIBED A CHECK OF HUMBLE OIL & REFINING CO., DATED
SEPT. 25, 1951, PAYABLE TO THE TAX COLLECTOR IN THE AMOUNT OF
$34,285.09, AND THE ACCOMPANYING LETTER OF THE TAXPAYER, DATED SEPT.
26, 1951, ADVISING THAT THE ATTACHED CHECK WAS IN PAYMENT OF TAXES FOR
THE YEAR 1951. 

THE SEVENTH COUNT DESCRIBED A LETTER OF DEC. 3, 1952, BY THE DISTRICT
TO C.W. HAHL CO., HOUSTON, TEXAS, COMPLYING WITH A REQUEST FOR AN
"AUXILIARY TAX NOTICE COVERING SURFACE FEE IN THE ROSITA TOWNSITE." 

THE EIGHTH, NINTH AND TENTH COUNTS DESCRIBED CHECKS OF C.W. HAHL CO.,
HOUSTON, TEXAS, DATED SEPT. 25, 1953, SEPT. 21, 1951 AND SEPT. 26,
1952, RESPECTIVELY, PAYABLE TO THE TAX COLLECTOR IN THE AMOUNTS OF
$544.21, $555.25 AND $451.70, RESPECTIVELY, AND ACCOMPANYING LETTERS OF
THE TAXPAYER ADVISING THAT THE ATTACHED CHECKS WERE IN PAYMENT OF TAXES
ON CERTAIN PROPERTY IN THE DISTRICT FOR THE YEARS 1953, 1951 AND 1952,
RESPECTIVELY. 

THE ELEVENTH, TWELFTH AND THIRTEENTH COUNTS DESCRIBED VOUCHER CHECKS
OF THE TEXAS COMPANY, HOUSTON, TEXAS, DATED SEPT. 27, 1951, SEPT. 26,
1952, AND SEPT. 30, 1953, RESPECTIVELY, PAYABLE TO THE TAX ASSESSOR IN
THE AMOUNTS OF $13,532.64, $13,078.72 AND $14,665.04, RESPECTIVELY, IN
PAYMENT OF TAXES ON CERTAIN PROPERTY IN THE DISTRICT FOR THE YEARS
1951, 1952 AND 1953, RESPECTIVELY. 

THE FOURTEENTH COUNT DESCRIBED A CHECK OF THE TEXAS PIPE LINE CO.,
HOUSTON, TEXAS, DATED SEPT. 30, 1953, PAYABLE TO THE TAX COLLECTOR IN
THE AMOUNT OF $330.84, AND THE TAXPAYER'S ACCOMPANYING LETTER ADVISING
THAT THE ATTACHED CHECK WAS IN PAYMENT OF TAXES FOR THE YEAR 1953. 

THE FIFTEENTH AND SIXTEENTH COUNTS DESCRIBED CHECKS OF J.E. BEALL,
HOUSTON, TEXAS, DATED SEPT. 30, 1953 AND OCT. 24, 1952, RESPECTIVELY,
PAYABLE TO "BENAVIDES INDEP.  SCHOOL DIST." IN THE AMOUNTS OF $415.72
AND $355.55, RESPECTIVELY, IN PAYMENT OF TAXES FOR THE YEARS 1953 AND
1952, RESPECTIVELY. 

COUNT 17 DESCRIBED AN INVOICE OR STATEMENT OF CONTINENTAL OIL CO.,
HOUSTON, TEXAS, DATED MAY 25, 1953, TO THE DISTRICT FOR MERCHANDISE IN
THE AMOUNT OF $273.85; COUNT 18 DESCRIBED A CHECK OF THE DISTRICT DATED
MAR. 31, 1953, PAYABLE TO CONTINENTAL OIL CO. IN THE AMOUNT OF $353.02,
AND COUNT 19 DESCRIBED A STATEMENT OF CONTINENTAL OIL CO., DATED MAR.
20, 1953, TO THE DISTRICT FOR MERCHANDISE IN THE AMOUNT OF $353.02,
WHICH WAS PAID BY THE DISTRICT'S CHECK DESCRIBED IN COUNT 18. 

FN11  RULE 18 OF FED. RULES CRIM. PROC. PROVIDES: 

"EXCEPT AS OTHERWISE PERMITTED BY STATUTE OR BY THESE RULES, THE
PROSECUTION SHALL BE HAD IN A DISTRICT IN WHICH THE OFFENSE WAS
COMMITTED, BUT IF THE DISTRICT CONSISTS OF TWO OR MORE DIVISIONS THE
TRIAL SHALL BE HAD IN A DIVISION IN WHICH THE OFFENSE WAS COMMITTED." 
FN12  THE OVERT ACTS ALLEGED WERE THE SENDING BY MAIL OF TAX RECEIPTS
TO HUMBLE OIL & REFINING CO. AT HOUSTON, TEXAS, ON OCT. 4, 1951, TO THE
TEXAS CO. AT HOUSTON, TEXAS, ON OCT. 11, 1951, AND OCT. 15, 1953, AND
TO THE TEXAS PIPE LINE CO. AT HOUSTON, TEXAS, ON OCT. 7, 1952; THE
DEPOSIT BY THE TEXAS PIPE LINE CO. IN THE MAILS AT HOUSTON, TEXAS, ON
SEPT. 30, 1952, OF A LETTER AND ATTACHED CHECK FOR $325.07 ADDRESSED TO
THE ASSESSOR-COLLECTOR AT BENAVIDES, TEXAS; THAT D.C. CHAPA CONVERTED
AND CASHED AT THE MERCHANTS EXCHANGE BANK, BENAVIDES, TEXAS, CHECKS
PAYABLE TO THE DISTRICT ASSESSOR-COLLECTOR, (1) OF J.E. BEALL FOR
$355.55 ON NOV. 8, 1952, (2) OF BARBARA OIL CO. FOR $361 ON NOV. 15,
1952, (3) OF O.W. GREENE FOR $298.43, (4) OF PEAL PROPERTIES FOR
$230.92, (5) OF ALLEN MARTIN FOR $300.82 ON NOV. 22, 1952, AND (6) OF
JONES-LAUGHLIN SUPPLY FOR $320.15 ON OCT. 17, 1952. 

FN13  THE ACTUAL COSTS OF OPERATING THE SCHOOLS AT FREER WERE ABOUT
$200,000 PER YEAR.  THEY WERE ESTIMATED TO BE APPROXIMATELY THE SAME
AMOUNT AT BENAVIDES.  ALTHOUGH THERE WAS EVIDENCE ESTIMATING THE
DISTRICT'S TOTAL TAX ASSESSMENTS, NOT COLLECTIONS, AT ABOUT $400,000
FOR 1949, AT ABOUT $650,000 FOR 1952, AND THE TAX ROLLS SHOW A TOTAL
TAX ASSESSMENT OF $519,613.51 FOR 1953, THE BOARD'S RECORDS SHOW TAX
COLLECTIONS OF $310,840.59 FOR 1949, $295,161.25 FOR 1950, $370,852.42
FOR 1951 AND $385,084.96 FOR 1952.  THE BOARD HAD OTHER INCOME,
INCLUDING PAYMENTS FROM DUVAL COUNTY AND THE PUPIL PER CAPITA AMOUNT
PAID BY THE STATE, OF ABOUT $140,000 PER YEAR. 

FN14  PETITIONERS SAENZ, GARCIA, GARZA, OLIVEIRA AND CHAPA REGULARLY
RECEIVED DISTRICT PAYROLL CHECKS, SOMETIMES IN THEIR OWN NAMES BUT
USUALLY UNDER ONE OR MORE FICTITIOUS NAMES, FOR SERVICES NOT RENDERED. 
SAENZ REGULARLY RECEIVED EIGHT PAYROLL CHECKS IN VARIOUS NAMES; GARCIA
REGULARLY RECEIVED PAYROLL CHECKS IN THE NAME OF HIS DAUGHTER, SO DID
GARZA; OLIVEIRA REGULARLY RECEIVED SUCH CHECKS, SOMETIMES PAYABLE TO
HIM AND AT OTHER TIMES TO HIS IMPLEMENT COMPANY.  CHAPA REGULARLY
RECEIVED THREE SUCH CHECKS EACH MONTH IN VARIOUS NAMES.  ALL OF THE
CHECKS MENTIONED WERE FOR FROM $100 TO $125.  A PAYROLL CHECK FOR $500
WAS ISSUED MONTHLY IN THE NAME OF PARR'S BROTHER-IN-LAW, WHO RENDERED
NO SERVICES FOR THE DISTRICT. 

FN15  INCLUDED IN THE CHECKS SO CONVERTED AND CASHED BY CHAPA WERE
THE CHECKS OF J.E. BEALL FOR $415.72 AND FOR $355.55, DESCRIBED IN THE
FIFTEENTH AND SIXTEENTH COUNTS, BUT THERE WAS EVIDENCE THAT HE
SIMILARLY CONVERTED AND CASHED OTHER DISTRICT CHECKS TOTALING ABOUT
$25,000. 

FN16  THERE WAS EVIDENCE, TOO, THAT PETITIONER O.P. CARRILLO PROCURED
THE REMODELING OF HIS LAW OFFICE AND NEW OFFICE FURNITURE AND EQUIPMENT
ON THE CREDIT AND AT THE EXPENSE OF THE DISTRICT TO THE EXTENT OF ABOUT
$2,500. 

FN17  SEE NOTE 10 RE COUNTS 17, 18 AND 19. 

FN18  SEE NOTE 12. 

FN19  BEFORE THE GIVING OF THE CHARGE, PETITIONERS' COUNSEL, AMONG
NUMEROUS REQUESTS FOR CHARGE, HAD REQUESTED THE COURT TO CHARGE THE
JURY AS FOLLOWS: 

"YOU ARE FURTHER INSTRUCTED THAT IF THE USE OF THE MAILS INVOLVED IN
EACH OF THE FIRST 19 COUNTS OF THE INDICTMENT WAS SOLELY FOR THE
PURPOSE OF COLLECTION OF TAXES BY THE BENAVIDES INDEPENDENT SCHOOL
DISTRICT, OR FOR THE PURPOSE OF PAYMENT OF SAME BY TAXPAYERS, OR IF YOU
HAVE A REASONABLE DOUBT IN REGARD THERETO, YOU WILL FIND THE DEFENDANTS
AND EACH OF THEM, 'NOT GUILTY,' AS TO EACH OF THE FIRST 19 COUNTS OF
THE INDICTMENT." 

A SIMILAR CHARGE WAS REQUESTED WITH RESPECT TO THE TWENTIETH COUNT. 
BOTH REQUESTS WERE DENIED. 

AFTER THE COURT'S CHARGE, COUNSEL FOR PETITIONERS EXCEPTED TO THE
CHARGE ON THE GROUNDS, AMONG OTHERS, THAT IT DID "NOT APPLY THE LAW
GIVEN TO THE FACTS IN ANY WAY," WAS "AN ABSTRACT INSTRUCTION WHICH
NOWHERE APPLIES THE COMPLETE LAW  ...  TO THE FACTS IN THIS CASE," AND,
WITH PARTICULAR REFERENCE TO THE TWENTIETH COUNT, DID NOT INSTRUCT THE
JURY "AS TO THE EXACT ESSENTIAL ELEMENTS OF THE OFFENSE INVOLVED IN THE
FIRST COUNT OF THE INDICTMENT." 

FN20  18 U.S.C. SEC. 1341, QUOTED IN NOTE 2. 

FN21  MADELEY V. TRUSTEES OF CONROE IND. SCHOOL DIST., 130 S.W.2D
929, 934 (TEX. CIV. APP.). 

FN22  VERNON'S TEX. REV. CIV. STAT. ART. 2784E. 

FN23  VERNON'S TEX. REV. CIV. STAT. ARTS. 2784E, 2827. 

FN24  MADELEY V. TRUSTEES, SUPRA, 130 S.W.2D, AT 932; KLUCKMAN V.
TRUSTEES, 113 S.W.2D 301, 303 (TEX. CIV. APP.). 

FN25  SEE NOTE 19. 

FN26  BRADFORD V. UNITED STATES, 129 F.2D 274, 276 (C.A. 5TH CIR.);
SHUSHAN V. UNITED STATES, 117 F.2D 110, 115 (C.A. 5TH CIR.).  SEE ALSO
STEINER V. UNITED STATES, 134 F.2D 931, 933 (C.A.  5TH CIR.). 

FN27  UNITED STATES V. EARNHARDT, 153 F.2D 472 (C.A. 7TH CIR.);
HOLMES V. UNITED STATES, 134 F.2D 125, 133 (C.A. 8TH CIR.); MITCHELL V.
UNITED STATES, 126 F.2D 550 (C.A. 10TH CIR.); STEPHENS V. UNITED
STATES, 41 F.2D 440 (C.A. 9TH CIR.).  SEE ALSO AHRENS V. UNITED STATES,
265 F.2D 514 (C.A. 5TH CIR.). 

FN28  SEE NOTES 9 AND 10. 

FN29  RULE 18 OF FED. RULES CRIM. PROC., QUOTED IN NOTE 11. 

FN30  PETITIONERS PARR, CHAPA AND DONALD WERE SEVERAL TIMES TRIED IN
THE STATE COURT ON CHARGES GROWING OUT OF MATTERS INVOLVED IN THIS
CASE.  PARR AND DONALD WERE ULTIMATELY FOUND GUILTY BUT THEIR
CONVICTIONS WERE REVERSED.  DONALD V. STATE, 165 TEX. CR. R. 252, 306
S.W.2D 360 (1957); PARR V. STATE, 307 S.W.2D 94 (TEX. CRIM. APP.
1957).  CHAPA WAS TRIED ON TWO OTHER INDICTMENTS RETURNED IN THE STATE
COURT, BOTH CHARGING FRAUDULENT CONVERSION OF THE DISTRICT'S FUNDS.  HE
WAS ACQUITTED ON THE FIRST INDICTMENT AND CONVICTED ON THE SECOND BUT
HIS CONVICTION WAS REVERSED.  CHAPA V. STATE, 164 TEX. CR. R. 554, 301
S.W.2D 127 (1957). 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

THE PETITIONERS, NINE INDIVIDUALS AND TWO BANKS, WERE INDICTED FOR
VIOLATIONS OF, AND CONSPIRACY TO VIOLATE, THE MAIL FRAUD ACT, 18 U.S.C.
SEC. 1341.  ALL WERE CONVICTED ON THE CONSPIRACY COUNT, AND ALL BUT
TWO, WHO WERE EXONERATED ON ALL OF THE SUBSTANTIVE COUNTS, WERE
CONVICTED OF EIGHT OR MORE OF THE NINETEEN SPECIFIC MAILINGS CHARGED. 

TOGETHER THESE PETITIONERS CONTROLLED A PUBLIC BODY CREATED UNDER
TEXAS LAW, THE BENAVIDES INDEPENDENT SCHOOL DISTRICT (HEREINAFTER
CALLED THE DISTRICT), WHICH ADMINISTERED THE PUBLIC SCHOOLS WITHIN ITS
GEOGRAPHICAL CONFINES, AND DOMINATED THE BANK SERVING AS DEPOSITORY OF
THE DISTRICT, DESIGNATED AS SUCH PURSUANT TO STATUTE.  VERNON'S TEX.
REV. CIV. STAT. ARTS.  2763, 2763A.  THROUGH THEIR CONTROL OF THE
DISTRICT'S FISCAL AFFAIRS THEY LOOTED IT OF AT LEAST $200,000 BETWEEN
1949 AND 1953. 

THE DISTRICT WAS VESTED BY TEXAS LAW WITH A LIMITED TAXING POWER,
VERNON'S TEX. REV. CIV.  STAT. ART. 2784E, AND THE ANNUAL COLLECTION OF
TAXES WAS THE PRIMARY SOURCE OF REVENUE FOR MAINTAINING ITS PUBLIC
SCHOOLS.  THE DISTRICT, AND THEREFORE THESE PETITIONERS EXERCISING THE
POWERS OF THE DISTRICT, ASSESSED AND COLLECTED AN AD VALOREM PROPERTY
TAX WHICH WAS BY LAW TO BE DEVOTED EXCLUSIVELY TO THE MAINTENANCE OF
THE PUBLIC SCHOOLS.  THEY WERE EMPOWERED TO FIX THE RATE OF TAXATION
ACCORDING TO PROJECTED NEEDS, WHETHER FOR EXPENDITURES OR RESERVES. 
VERNON'S TEX. REV. CIV. STAT. ARTS. 2784E, 2827.  APART FROM THEIR DUTY
TO CONFINE THE TAX TO SCHOOL PURPOSES, PETITIONERS' DISCRETIONARY POWER
TO FIX THE RATE WAS UNLIMITED, EXCEPT THAT A MAXIMUM RATE WAS FIXED BY
STATUTE.  VERNON'S TEX. REV. CIV. STAT. ART. 2784E.  IN 1951,
PETITIONERS RAISED THE TAX RATE TO THE STATUTORY MAXIMUM, AND
THEREAFTER TAXED AT THAT RATE.  PURSUANT TO A SCHEME DEVISED IN 1949,
THEY REGULARLY SPENT LESS THAN THE AMOUNT COLLECTED ON THE SCHOOLS,
CREATED NO RESERVES, AND APPROPRIATED A PORTION OF THE PROCEEDS TO
THEIR OWN USES.  WHEN THEIR DOMINATION OF THE DISTRICT CEASED IN 1954,
SCHOOL EXPENDITURES SHARPLY ROSE, WHILE TAX COLLECTIONS REMAINED
SUBSTANTIALLY UNCHANGED. 

CONDUCT OR TRANSACTIONS FALL UNDER THE MAIL FRAUD ACT IF IT BE
ESTABLISHED THAT THERE EXISTED "ANY SCHEME OR ARTIFICE TO DEFRAUD" AND
THAT THE MAILS WERE USED "FOR THE PURPOSE OF EXECUTING SUCH SCHEME OR
ARTIFICE OR ATTEMPTING SO TO DO."  OF THE NINETEEN SUBSTANTIVE
VIOLATIONS CHARGED IN THIS INDICTMENT, SIXTEEN WERE MAILINGS IN
CONNECTION WITH THE TAX COLLECTION PROCESS CARRIED OUT BY PETITIONERS. 
AS TO THOSE COUNTS THIS CASE PRESENTS THE QUESTION WHETHER THE ACT IS
VIOLATED BY A PUBLIC OFFICER VESTED BY LAW WITH A DISCRETIONARY POWER
TO LEVY TAXES FOR THE PURPOSE OF PROVIDING FUNDS ESTIMATED TO MEET
PROJECTED EXPENDITURES FOR A STATUTORILY DEFINED PUBLIC NEED FOR THE
SATISFACTION OF WHICH THE POWER IS ENTRUSTED TO HIM, WHO EXERCISES THAT
POWER OVER SEVERAL YEARS TO COLLECT THROUGH THE MAILS SUMS WHICH COULD
AS A MATTER OF LAW BE SO EXPENDED, BUT A PORTION OF WHICH HE AT ALL
TIMES, THROUGHOUT SUCCESSIVE YEARS OF FIXING THE TAX RATE AND UTILIZING
THE PROCEEDS, ACTUALLY INTENDS TO AND DOES APPROPRIATE TO HIS OWN
USES. 

PETITIONERS URGE THAT BECAUSE THE AMOUNTS THEY COLLECTED EACH YEAR
WERE CREDITED TO THE TAXPAYERS ON THE DISTRICT'S BOOKS, AND WERE NOT IN
EXCESS OF WHAT THEY MIGHT, HAD THEY LAWFULLY APPLIED THE PROCEEDS, HAVE
EXPENDED FOR SCHOOL MAINTENANCE, THE COLLECTIONS WERE IN EFFECT LAWFUL
AND DID NOT CONSTITUTE A FRAUDULENT SCHEME IN THE COLLECTION OF THE
TAXES, SO THAT THERE WAS NO WRONGDOING, NOTHING ILLICIT, TILL THEY
MISAPPLIED THE INNOCENTLY COLLECTED FUNDS.  THEIR CASE IS THAT IT MUST
THEREFORE BE CONCLUDED THAT THE MAILINGS, WHICH OCCURRED IN THE COURSE
OF THE EXERCISE OF THE DISTRICT'S LAWFUL TAXING POWER, WERE NOT FOR THE
PURPOSE OF "EXECUTING" THEIR SCHEME WITHIN THE MEANING OF THE ACT,
REGARDLESS OF THE FACT THAT IT WAS ESTABLISHED BEYOND PERADVENTURE THAT
THEIR ABUSE OF THE DISTRICT'S POWERS WAS A SEAMLESS FRAUDULENT SCHEME,
CONCEIVED AND EXECUTED AS SUCH WITH EVERY ELEMENT OF THE ENTERPRISE
INTERDEPENDENT WITH EVERY OTHER. 

INSOFAR AS THE DEFENSE RESTS ON THE LAWFULNESS OF THE ISOLATED ACT OF
MAILING AS A CLAIM OF IMMUNITY FROM THE MAIL FRAUD STATUTE, IT IS
WITHOUT SUBSTANCE.  IT HAS LONG BEEN ESTABLISHED THAT UNDER THIS ACT
"INTENT MAY MAKE AN OTHERWISE INNOCENT ACT CRIMINAL, IF IT IS A STEP IN
A PLOT."  BADDERS V. UNITED STATES, 240 U.S. 391, 394.  IN FACT THE
HEART OF PETITIONERS' EFFORT TO ESCAPE THEIR CONVICTION IS THE CLAIM
THAT THE SKULDUGGERIES OF WHICH THE JURY FOUND THEM GUILTY DO NOT FALL
WITHIN THE SCOPE OF THE MAIL FRAUD STATUTE BECAUSE IN SENDING OUT THE
TAX BILLS THEY WERE THE NEUTRAL VEHICLES OF LEGAL COMPULSION, ALTHOUGH
AT THE TIME THAT THEY SENT THEM OUT, AND HAVING FULL GOVERNMENTAL
CONTROL OF THE PROCESS OF CONTROLLING REVENUE AND EXPENDING IT, THEY
HAD PREDETERMINED THAT THE PROCEEDS WERE NOT TO BE FULLY APPLIED TO
SCHOOL PURPOSES BUT WERE IN PART TO BE DIVERTED INTO THEIR PRIVATE
POCKETS.  IT BESPEAKS AN AUDACIOUS LACK OF HUMOR TO SUGGEST THAT THE
LAW ANYWHERE UNDER ANY CIRCUMSTANCES REQUIRES TAX COLLECTORS WHO SEND
OUT TAX BILLS, AND WHO ALSO HAVE COMPLETE CONTROL OVER THE RETURNS, TO
SEND OUT BILLS TO AN AMOUNT WHICH THEY PREDETERMINEDLY DESIGN TO PUT IN
PART TO PERSONAL USES.  THAT IS CERTAINLY NOT THE LAW OF TEXAS IN ANY
EVENT.  WHILE IT MAY BE ASSUMED THAT, SINCE THE MAINTENANCE OF THE
SCHOOLS WAS THE DUTY OF THE DISTRICT, PETITIONERS WERE OBLIGATED TO
COLLECT SOME AMOUNT OF AD VALOREM TAX FOR THAT PURPOSE, IT IS
UNDISPUTED THAT HOW MUCH WAS TO BE EXPENDED, AND THEREFORE HOW MUCH WAS
TO BE COLLECTED, WAS DETERMINED NOT BY TEXAS LAW BUT BY THE DISCRETION,
THE VOLUNTARY ACT, OF PETITIONERS THEMSELVES.  NO TEXAS STATUTE
REQUIRED THEM TO COLLECT WHAT THEY INTENDED TO SPEND TO KEEP THE
SCHOOLS RUNNING, PLUS AN AMOUNT WHICH THEY INTENDED TO MISAPPROPRIATE,
(FN1) AND THAT IS PRECISELY WHAT THE PROOF ESTABLISHED AND THE JURY
FOUND THAT THEY DID. 

PETITIONERS' CLAIM RAISES THE FURTHER QUESTION WHETHER, EVEN IF THE
MAILINGS WERE NOT IMMUNE IN THEMSELVES, THEY WERE TOO REMOTE FROM THE
PURPOSE OF THE FRAUDULENTLY DESIGNED SCHEME TO BE DEEMED IN "EXECUTION"
OF IT.  WHETHER A MAILING WHICH OCCURS IN DISCERNIBLE RELATION TO A
SCHEME TO DEFRAUD IS AN EXECUTION OF IT IS A QUESTION OF THE DEGREE OF
PROXIMITY OF THE MAILING TO THE SCHEME.  THE STATUTE WAS ENACTED "WITH
THE PURPOSE OF PROTECTING THE PUBLIC AGAINST ALL SUCH INTENTIONAL
EFFORTS TO DESPOIL, AND TO PREVENT THE POST OFFICE FROM BEING USED TO
CARRY THEM INTO EFFECT  ...  ."  DURLAND V. UNITED STATES, 161 U.S.
306, 314.  WHETHER THE POST OFFICE WAS SO USED MUST BE THE COURT'S
CENTRAL INQUIRY.  IF THE USE OF THE MAILS OCCURRED NOT AS A STEP IN BUT
ONLY AFTER THE CONSUMMATION OF THE SCHEME, THE FRAUD IS THE EXCLUSIVE
CONCERN OF THE STATES.  KANN V. UNITED STATES, 323 U.S. 88.  THE
ADEQUATE DEGREE OF RELATIONSHIP BETWEEN A MAILING WHICH OCCURS DURING
THE LIFE OF A SCHEME AND THE SCHEME IS OF COURSE NOT A MATTER
SUSCEPTIBLE OF GEOMETRIC DETERMINATION.  IN UNITED STATES V. YOUNG, 232
U.S. 155, WE SAID THAT IT IS NOT NECESSARY THAT THE SCHEME CONTEMPLATE
THE USE OF THE MAILS AS AN ESSENTIAL ELEMENT, AND IN PEREIRA V. UNITED
STATES, 347 U.S. 1, 8, WE FOUND A MAILING TO BE IN EXECUTION OF A
SCHEME BECAUSE IT WAS "INCIDENT TO AN ESSENTIAL PART" OF IT.  THE
DETERMINING QUESTION IS WHETHER THE MAILING WAS DESIGNED MATERIALLY TO
AID THE CONSUMMATION OF THE SCHEME, AS, FOR EXAMPLE, IN PEREIRA V.
UNITED STATES, SUPRA, BY THE OBTAINING OF ITS PROCEEDS THROUGH THE
INNOCENT COLLECTION OF DEFENDANT'S FRAUDULENTLY OBTAINED CHECK BY HIS
BANK. 

FOR THE PURPOSES OF THE STATUTE, THE SIGNIFICANCE OF THE RELATIONSHIP
BETWEEN SCHEME AND MAILING DEPENDS ON THE INTERCONNECTION OF THE PARTS
IN A PARTICULAR SCHEME.  ORDINARILY, ONCE THE FRAUD IS PROVED ITS SCOPE
IS NOT A MATTER OF DISPUTE.  BUT WHEN, AS HERE, THE FRAUD INVOLVES THE
ABUSE OF A POSITION OF PUBLIC TRUST, CLOSER ANALYSIS IS REQUIRED. 
PETITIONERS SEEK TO DENUDE THEIR SCHEME OF ITS RANGE AND
PERVASIVENESS.  THEY CONSTRUCT AN ARTIFACT WHEREBY THEIR FRAUDULENT
SCHEME WAS, AS IT WERE, INTRAMURAL, UNRELATED TO TAXPAYERS TO WHOM THEY
SENT THE TAX BILLS, AND SO THE MAILS, THE INGENUOUS ARGUMENT RUNS, WERE
NOT USED IN THE FRAUD BECAUSE THE WRONGDOING ONLY AROSE AFTER THE MAILS
HAD FULFILLED THEIR FUNCTION BY BRINGING THE RETURNS.  THE WRONG IS
THUS NICELY PIGEONHOLED AS EMBEZZLEMENT, WITHOUT ANY PRIOR SCHEME. 
THE FRAUDULENT, EPISODIC, PETTY-CASH PECULATIONS OF A CLERK AT A
REGULATORY AGENCY ARE FRAUDS UPON THAT AGENCY, AND ALTHOUGH TAXPAYERS
GENERALLY ARE INJURED BY THE FRAUD AND IN THAT SENSE ARE THE ULTIMATE
OBJECTS OF IT, THE MAILINGS BY WHICH THE TAX PROCEEDS ARE COLLECTED
WHICH CONSTITUTE THE VAST GOVERNMENT FUNDS OUT OF WHICH THE AGENCY'S
FUNDS ARE TAKEN, ARE, AS A MATTER OF PRACTICAL GOOD SENSE BY WHICH LAW
DETERMINES SUCH ISSUES OF CAUSATION, SEE GULLY V. FIRST NATIONAL BANK,
299 U.S. 109, 117-118, TOO REMOTE FROM THE SCHEME TO BE DEEMED IN
EXECUTION OF IT.  BUT TO ANALOGIZE PETITIONERS' SCHEME TO A
CONVENTIONAL CASE IS PECULATION BY AN EMPLOYEE, WHETHER PUBLIC OR
PRIVATE, IS TO DISREGARD THE FACTS OF THIS CASE. 

THE PETITIONERS THEMSELVES CONTROLLED THE ENTIRE CONDUCT OF THE
DISTRICT'S FISCAL AFFAIRS, AND THEIR OWN DECISION, LIMITED ONLY BY A
STATUTORY CEILING, DETERMINED THE AMOUNT OF THE TAX THAT WOULD BE
COLLECTED.  PETITIONERS' EXERCISE OF THEIR POWER TO FIX THE AMOUNT OF
THE TAX, AN EXERCISE WHICH ULTIMATELY ASSURED TO THEMSELVES AN EXCESS
OF FUNDS OVER THEIR INTENDED EXPENDITURES OR RESERVES FOR SCHOOL
PURPOSES, WAS NECESSARILY CENTRAL TO THEIR SCHEME.  SUCH CONTROL
OBLITERATES THE LINE THEY SEEK TO DRAW BETWEEN THEMSELVES AND THE
ENTITY IT WAS THEIR DUTY TO SERVE.  BY DEMANDING AND COLLECTING WHAT
THEY INTENDED TO MISAPPROPRIATE THEY MADE THE PROCESS OF COLLECTION AN
INSEPARABLE ELEMENT OF THEIR SCHEME. 

THE PETITIONERS' CONTROL OF THE DISTRICT AND THEREFORE OF ITS TAX
RATE, SIMILARLY DISPOSES OF THEIR CONTENTIONS THAT ONE OR ANOTHER
ELEMENT OF A TECHNICAL FRAUD UPON THE TAXPAYERS OF THE DISTRICT IS
ABSENT.  THE SUGGESTION THAT IN THE COLLECTION OF TAXES THERE WAS NO
REPRESENTATION BY PETITIONERS TO THE TAXPAYERS OF THE DISTRICT MIGHT BE
PERTINENT WERE THE SYSTEM A SELF-EXECUTING TAX STRUCTURE UNDER WHICH
THE TIME FOR, AND AMOUNT OF, THE PAYMENT DUE AND THE PAYEE TO WHOM IT
IS TO BE MADE ARE DESIGNATED BY STATUTE, SO THAT THE TAX COLLECTOR,
SERVING AS AN AUTOMATIC CONDUIT, DOES NOTHING TO CAUSE COLLECTION OF
THE TAX.  THESE COLLECTORS, HOWEVER, WERE THE PRIME ACTORS IN THE
STRUCTURE.  THEY NOT ONLY BILLED THE TAXPAYERS BUT ALSO FIXED THE RATE
OF THE TAX ITSELF.  FOR THAT REASON IT CANNOT BE SAID THAT THE
TAXPAYERS PAID THEIR TAXES SOLELY UNDER COMPULSION OF TEXAS LAW, AND
NOT AT ALL IN RELIANCE UPON THE IMPLIED FALSE REPRESENTATION OF
PETITIONERS THAT THE AMOUNTS ASSESSED WERE COLLECTED TO MEET PROJECTED
EXPENDITURES.  THE TAXPAYERS NECESSARILY DEPENDED UPON PETITIONERS'
SETTING OF THE RATE FOR KNOWLEDGE OF WHAT AMOUNT WAS TO BE PAID.  EACH
TAXPAYER WHO TESTIFIED REVEALED THAT HE AWAITED HIS BILL BEFORE MAKING
PAYMENT.  THE FACT, MUCH RELIED ON BY PETITIONERS, THAT AN AVAILABLE
TEXAS PROCEDURE FOR CHALLENGING THE TAX WAS NOT INVOKED, ESTABLISHES
NOT, AS IS ARGUED, THE LEGALITY OF THE TAX, BUT THE RELIANCE OF
TAXPAYERS ON PETITIONERS' IMPLIED REPRESENTATIONS IN THE COLLECTION OF
IT. 

THE INTENTION OF PETITIONERS TO HAVE THEIR BILLS PAID IS BEYOND
DISPUTE.  BUT THEY URGE AN ABSENCE OF DETRIMENT TO THE TAXPAYERS WHO
DID RELY SINCE THEIR PAYMENTS WERE ORDINARILY CREDITED TO THEM ON THE
DISTRICT'S BOOKS.  THE CLAIM IS FRIVOLOUS.  WHETHER THEY ARE VIEWED AS
HAVING OVERPAID FOR SCHOOL SERVICES, OR HAVING BEEN DEPRIVED OF
SERVICES FOR WHICH THEY PAID, THE DETRIMENT TO THE TAXPAYERS IS SELF
EVIDENT.  IT IS IN PART FOR THIS REASON THAT PETITIONERS' ATTEMPTED
ANALOGY BETWEEN THIS CASE AND THE CASE OF A DOCTOR'S SECRETARY WHO
SENDS OUT JUST BILLS BUT INTENDS TO STEAL FROM THE PROCEEDS IS TO URGE
THAT A MOUNTAIN IS A MOLEHILL.  EVEN IF THE SECRETARY, RATHER THAN HER
PRINCIPAL, IS REGARDED AS MAKING THE REPRESENTATION TO PATIENTS THAT
THEY MAY PAY HER, THEY ARE NOT INJURED BY SO DOING, AND THEY ARE NOT
DEFRAUDED.  THE RESULT WOULD BE A VERY DIFFERENT, AS PETITIONERS
CONCEDE, IF THE BILLS SO SENT OUT WERE PADDED BY HER.  HERE INESCAPABLY
THE BILLS WERE PADDED BY THE PREDETERMINED INCREASE, WHICH, THOUGH
WITHIN TECHNICAL LIMITS, WAS FOR FRAUDULENT ENDS. 

ALTHOUGH THIS ANALYSIS APPROPRIATELY DISPOSES OF THIS CASE IT GOES
BEYOND THE REQUIREMENTS OF THE STATUTE.  WHILE THE MAIL FRAUD ACT IS
DIRECTED AGAINST THE UTILIZATION OF THE MAILS IN CARRYING OUT A
FRAUDULENT SCHEME, THE PENAL PROHIBITION OF THE USE OF THE MAILS FOR A
FRAUD DOES NOT TURN ON THE NICETIES OF THE COMMON-LAW OFFENSE OF
OBTAINING MONEY OR GOODS UNDER FALSE PRETENSES, SEE DURLAND V. UNITED
STATES, 161 U.S. 306, 312-313.  THE STATUTE SOUGHT TO FORBID THE USE OF
THE MAILS AS A VEHICLE FOR A FRAUDULENT ENTERPRISE IN THE ORDINARY
SENSE OF A FRAUD - A DISHONEST AND CHEATING ENTERPRISE.  IT IS
SIGNIFICANT THAT THE ACT WAS AMENDED IN 1909 BY ADDING TO THE OUTLAWRY
OF A "SCHEME OR ARTIFICE TO DEFRAUD" THE EXPANDING CONDEMNATION,
"OBTAINING MONEY OR PROPERTY BY MEANS OF FALSE OR FRAUDULENT PRETENSES,
REPRESENTATIONS, OR PROMISES."  35 STAT. 1130.  WHILE OF COURSE PENAL
CRIMINAL STATUTES MUST NOT BE EXTENDED BEYOND THE FAIR MEANING OF
ENGLISH WORDS, THEY MUST NOT BE ARTIFICIALLY AND UNREASONABLY
CONTRACTED TO AVOID BRINGING A NEW SITUATION WITHIN THEIR SCOPE WHICH
PLAINLY FALLS WITHIN IT IN LIGHT OF "THE EVIL SOUGHT TO BE REMEDIED." 
DURLAND V. UNITED STATES, SUPRA, AT 313.  THE LAY, COMMONSENSICAL WAY
OF INTERPRETING CONDEMNATION OF ASPECTS OF FRAUD IN FEDERAL PENAL
LEGISLATION IS ILLUSTRATED BY THE SETTLED DOCTRINE THAT THE PROHIBITION
AGAINST DEFRAUDING THE UNITED STATES IN 18 U.S.C. SEC. 371 EXTENDS FAR
BEYOND THE COMMON-LAW CONCEPTION OF FRAUD IN THAT FINANCIAL OR PROPERTY
LOSS IS NOT AN INGREDIENT OF THE OFFENSE.  HAAS V. HENKEL, 216 U.S.
462, 480; SEE ALSO UNITED STATES V. PLYLER, 222 U.S. 15.  IF THE
FRAUDULENT ENTERPRISE OF WHICH THIS RECORD REEKS IS NOT A SCHEME
ESSENTIALLY TO DEFRAUD THE TAXPAYERS WHO CONSTITUTE THE DISTRICT RATHER
THAN A DISEMBODIED, ABSTRACT ENTITY CALLED THE DISTRICT, ENGLISH WORDS
HAVE LOST THEIR MEANING. 

PETITIONERS FINALLY URGE AS TO THESE COUNTS THAT THEIR CONVICTIONS
CANNOT BE SUSTAINED BECAUSE, EVEN IF THE FACTS WERE SUFFICIENT TO
SUSTAIN A CONVICTION, THE INDICTMENT DID NOT ALLEGE, THE PROOF DID NOT
SHOW, THE CONDUCT OF THE TRIAL AND THE SUMMATIONS TO THE JURY DID NOT
REVEAL, AND THE CHARGE TO THE JURY DID NOT PRESENT, SUCH A CASE EITHER
AS TO FACT OR LAW.  IT IS APPARENT HOWEVER THAT EVERY ASPECT OF THIS
PROSECUTION WAS FOCUSED ON THE GOVERNMENT'S BASIC ASSERTION THAT
BECAUSE PETITIONERS CONTROLLED THE DISTRICT'S AFFAIRS, CONTINUOUSLY
SCHEMED TO AND DID MISAPPROPRIATE FUNDS WHILE CONTINUING TO COLLECT
FALSELY REPRESENTED REVENUES FROM TAXPAYERS BY MAIL, THE USE OF THE
MAILS TO COLLECT TAXES WAS IN EXECUTION OF A SCHEME TO DEFRAUD THE
DISTRICT AND ITS TAXPAYERS. 

THE INDICTMENT IN EVERY SUBSTANTIVE COUNT EXPRESSLY ALLEGED "A SCHEME
AND ARTIFICE TO DEFRAUD THE BISD, PERSONS OBLIGATED BY THE LAWS OF THE
STATE OF TEXAS TO PAY TAXES TO THE BISD (HEREINAFTER CALLED TAXPAYERS),
THE STATE OF TEXAS, AND  ...  TO OBTAIN THE MONEY AND PROPERTY OF THE
BISD AND THE TAXPAYERS FOR THEMSELVES  ...  ."  THE PRIMARY DEVICES
ALLEGEDLY UNDERTAKEN TO EFFECTUATE THE SCHEME WERE THE OBTAINING AND
MAINTAINING OF CONTROL OF THE DISTRICT AND ITS DEPOSITORY BANK, AND THE
COLLECTION OF TAXES BY MAIL FROM DISTRICT TAXPAYERS DURING THE PERIOD
OF THE SCHEME. 

THE GOVERNMENT'S PROOF ESTABLISHED A DESIGN OF PETITIONERS TO OBTAIN
CONTROL OF THE POLITICAL AND FISCAL MECHANISM OF THE DISTRICT, AND
THAT, HAVING OBTAINED CONTROL AND BEING THE DOMINUS OF THE DISTRICT,
THEY SENT OUT TAX BILLS OF THE RETURNS FROM WHICH, YEAR AFTER YEAR,
THEY TOOK A PORTION FOR THEMSELVES.  THE PROOF THUS ESTABLISHED A
CONTINUING COURSE OF CONDUCT CONSTITUTING, BY THE VERY NATURE OF THE
SYSTEMATIC CONTINUITY OF THE PRACTICE, A CONSCIOUS SCHEME TO UTILIZE
THEIR POWERS OF GOVERNMENT, OF WHICH SETTING THE TAX RATE WAS ONE, FOR
FRAUDULENT PURPOSES, IN THE EXECUTION OF WHICH THE MAILS OF THE UNITED
STATES WERE A NECESSARY INSTRUMENT.  OBJECTIONS TO GOVERNMENT EVIDENCE
OFFERED ON THE SUBSTANTIVE COUNTS AS TO EVENTS BEFORE 1951 WERE
OVERRULED ON THE WELL-SETTLED GROUND THAT THE OFFERS WERE ADMISSIBLE TO
SHOW THE CONTINUING SCHEME TO ACQUIRE, MAINTAIN AND ABUSE CONTROL OF
THE DISTRICT. 

IN ITS SUMMATION THE GOVERNMENT REPEATEDLY CHARACTERIZED THE SCHEME
WHICH IT HAD SOUGHT TO PROVE AS ONE TO EMPLOY PETITIONERS'
COMPREHENSIVE CONTROL TO MAXIMIZE DISTRICT REVENUES WITH A VIEW TO
STEALING FUNDS, (FN2) AND THE CHARGE ADEQUATELY PLACED THE ISSUES OF
THE INDICTMENT AND TRIAL BEFORE THE JURY. 

THE REMAINING THREE SUBSTANTIVE COUNTS OF THE INDICTMENT CHARGED THAT
AS PART OF THE SAME SCHEME TO CONTROL AND DEFRAUD THE DISTRICT THE
PETITIONERS USED THE DISTRICT'S CHARGE ACCOUNT TO OBTAIN GASOLINE FOR
THEIR PERSONAL USE, WHICH ACTS RESULTED IN THE USE OF THE MAILS BY THE
VENDOR TO PRESENT THE APPROPRIATE BILLS TO THE DISTRICT.  THE MAILINGS
OF TWO SUCH BILLS AND OF ONE PAYMENT BY THE DISTRICT WERE CHARGED AS
SEPARATE OFFENSES.  TWO MATTERS ARE TO BE NOTED.  FIRST, IT IS
SUGGESTED THAT THERE WAS NO MISREPRESENTATION BY THE PETITIONERS,
BECAUSE ONLY THE CORRECT BILL OF THE VENDOR WAS SENT TO THE DISTRICT. 
NO REASON APPEARS HOWEVER WHY A BILL WHICH THE JURY COULD HAVE FOUND
PETITIONERS KNOWINGLY CAUSED TO BE SENT TO THE DISTRICT CONSTITUTES
LESS OF A REPRESENTATION BY THEM THAT THE GASOLINE CONSUMED WAS USED
FOR THE DISTRICT'S PURPOSES THAN A VOUCHER DIRECTLY SUBMITTED BY THEM
FOR REIMBURSEMENT FOR CASH PURCHASES. 

SECOND, IT IS URGED THAT, UNDER THE RATIONALE OF KANN V. UNITED
STATES, 323 U.S. 88, THE MAILINGS, EVEN IF CAUSED BY PETITIONERS, WERE
NOT IN EXECUTION OF A SCHEME TO DEFRAUD BECAUSE THE SCHEME WAS
CONSUMMATED ONCE THEY RECEIVED THE GASOLINE.  KANN V. UNITED STATES
FOUND AN APPROPRIATE INSTANCE OF SUCH A LIMITATION; BUT IT ALSO
EXPRESSLY EXCEPTED FROM THE FORCE OF THE RULE SITUATIONS IN WHICH THE
SUBSEQUENT MAILING HAS THE FUNCTION OF AFFORDING "CONCEALMENT SO THAT
FURTHER FRAUDS WHICH ARE PART OF THE SCHEME MAY BE PERPETRATED," SUPRA,
AT 94-95.  HERE THE JURY MIGHT PROPERLY HAVE FOUND THAT CONSUMPTION OF
GASOLINE FOR PRIVATE PURPOSES WAS BUT ONE DEVICE OF PETITIONERS FOR
TURNING THEIR CONTROL OF THE DISTRICT TO THEIR PERSONAL ADVANTAGE, AND
THAT THE CONTINUING PRESENTATION AND PAYMENT OF THE BILLS, AND NOT
MERELY THE RECEIPT OF THE GASOLINE, WAS THE PURPOSE OF THE SCHEME. 

PETITIONERS RAISE NO SUBSTANTIAL OBJECTIONS TO THE CONSPIRACY
CONVICTIONS THAT ARE NOT DISPOSED OF BY WHAT HAS ALREADY BEEN SAID. 
THE PETITIONERS' OTHER ATTACKS AGAINST THE VERDICT REQUIRE NO MORE
DISCUSSION THAT GIVEN BELOW.  265 F.2D 894. 

I WOULD AFFIRM THE JUDGMENTS. 

FN1  SEE MADELEY V. TRUSTEES, 130 S.W.2D 929, 932 (TEX. CIV. APP.),
AND KLUCKMAN V. TRUSTEES, 113 S.W.2D 301, 303 (TEX. CIV. APP.), BOTH
STATING THAT AN ACTION WILL LIE TO ENJOIN THE COLLECTION OF TAXES ON
THE GROUND OF THE TRUSTEES' FRAUD; AND STEPHENS V. DODDS, 243 S.W. 710
(TEX. CIV.  APP.), SUGGESTING THAT A REFERENDUM CONFERRING ON THE
TRUSTEES THE POWER TO TAX MAY BE VOID IF THE TAX IS NOT FOR THE
STATUTORY PURPOSE. 

FN2  "A CONTINUING SCHEME YEAR AFTER YEAR, SEND OUT THE TAX NOTICE,
RAKE IN THE HARVEST THROUGH THE MAILS, AND THEN MILK IT BY SEVERAL
METHODS AS OUTLINED."  "THIS WAS A CONTINUING SCHEME TO DEFRAUD.  THIS
WAS NOT A SCHEME WHICH THESE DEFENDANTS THOUGHT UP 'I WILL TAKE ONE
CHECK AND CONVERT IT TO MY OWN USE,' BUT IT WENT ON, '48, '49, '50,
'51, '52, '53, IN ORDER TO DRAW OUT MORE FRAUDULENT CHECKS, MORE MONEY
FROM THE DEPOSITORY BANKS THEY HAD TO REPLENISH THE SUPPLY."  "IT IS
THE GOVERNMENT'S THEORY OF THIS CASE THAT THESE DEFENDANTS TOOK OVER A
MAIL-ORDER BUSINESS  ...  . THE DEFENDANTS KNEW THAT; THEY HAD TO KNOW
IT."  "WHAT IS THE FUNCTION OF THE SCHOOL DISTRICT?  THE FUNCTION OF
THE SCHOOL DISTRICT IS TO PROVIDE FOR THE PUBLIC EDUCATION, THE FREE
EDUCATION OF THE STUDENTS, ALL THE CHILDREN WHO LIVE IN THEIR DISTRICT
...  .  THE TRUSTEES ARE SOMEONE IN WHOM CONFIDENCE  ...  TRUST AND
RELIANCE ARE PLACED BY THE TAXPAYERS  ...  .  WHAT WAS THE SCHOOL
DISTRICT USED FOR IN THIS INSTANCE?  ...  IT WAS USED AS A PERSONAL
VEHICLE FOR THE FRAUDULENT DESIGNS AND PURPOSES OF THESE DEFENDANTS." 
..END :












KIMM V. ROSENBERG 363 U.S. 405 


NO. 139.  ARGUED MAY 16-17, 1960.  - DECIDED JUNE 13, 1960.  - 263 F.2D
773, AFFIRMED. 


PETITIONER, AN ALIEN WHOSE DEPORTATION HAD BEEN ORDERED, APPLIED UNDER
SEC. 19(C) OF THE IMMIGRATION ACT OF 1917, AS AMENDED, FOR AN ORDER
SUSPENDING HIS DEPORTATION OR PERMITTING HIS VOLUNTARY DEPARTURE.  IN
AN ADMINISTRATIVE HEARING ON HIS APPLICATION, HE WAS ASKED WHETHER HE
WAS A MEMBER OF THE COMMUNIST PARTY.  HE REFUSED TO ANSWER, CLAIMING
THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.  HIS
APPLICATION WAS DENIED ON THE GROUND THAT HE HAD FAILED TO PROVE HIS
ELIGIBILITY UNDER SEC. 19 AND THE INTERNAL SECURITY ACT OF 1950.  HELD:
DENIAL OF HIS APPLICATION IS SUSTAINED, SINCE SEC. 19(D) AND THE
INTERNAL SECURITY ACT OF 1950 MAKE COMMUNISTS INELIGIBLE FOR SUSPENSION
OF DEPORTATION, AND THE BURDEN WAS ON PETITIONER TO SHOW THAT HE WAS
ELIGIBLE FOR SUCH SUSPENSION.  PP. 405-408. 

KIMM V. ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

PETITIONER APPLIED FOR SUSPENSION OF AN ORDER DIRECTING HIS
DEPORTATION TO KOREA OR PERMITTING HIS VOLUNTARY DEPARTURE.  HE DOES
NOT QUESTION THE VALIDITY OF THE DEPORTATION ORDER, BUT CONTENDS THAT
HE IS WITHIN THE ELIGIBLE STATUTORY CLASS WHOSE DEPORTATION MAY BE
SUSPENDED AT THE DISCRETION OF THE ATTORNEY GENERAL.  SEC. 19(C) OF THE
IMMIGRATION ACT OF 1917, AS AMENDED.  RELIEF ON THIS SCORE WAS DENIED
ON THE BASIS THAT THE ATTORNEY GENERAL HAS NO POWER TO EXERCISE HIS
DISCRETION IN THAT REGARD SINCE PETITIONER FAILED TO PROVE HIS
ELIGIBILITY UNDER THAT SECTION AND THE INTERNAL SECURITY ACT OF 1950. 

BEFORE THE HEARING OFFICER, PETITIONER WAS ASKED IF HE WAS A MEMBER
OF THE COMMUNIST PARTY.  HE REFUSED TO ANSWER, CLAIMING THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.  THE OFFICER REFUSED
THE SUSPENSION ON THE GROUNDS THAT PETITIONER HAD FAILED TO PROVE THAT
HE WAS A PERSON OF GOOD MORAL CHARACTER AND THAT HE HAD NOT MET THE
STATUTORY REQUIREMENT OF SHOWING THAT HE WAS NOT A MEMBER OF OR
AFFILIATED WITH THE COMMUNIST PARTY.  THE BOARD OF IMMIGRATION APPEALS
AFFIRMED ON THE LATTER GROUND, AS DID THE COURT OF APPEALS.  263 F.2D
773. 

PETITIONER CONTENDS THAT HE PRESENTED "CLEAR AFFIRMATIVE EVIDENCE" AS
TO ELIGIBILITY WHICH STANDS UNCONTRADICTED AND THAT THE BURDEN WAS ON
THE GOVERNMENT TO SHOW HIS AFFILIATIONS, IF ANY, WITH THE PARTY.  HE
CONTENDS THAT THE DISQUALIFYING FACTOR OF COMMUNIST PARTY MEMBERSHIP IS
AN EXCEPTION TO SEC. 19(C) WHICH THE GOVERNMENT MUST PROVE.  WE THINK
NOT.  RATHER THAN A PROVISO, IT IS AN ABSOLUTE DISQUALIFICATION, SINCE
THAT CLASS OF ALIENS IS CARVED OUT OF THE SECTION AT ITS VERY BEGINNING
BY THE WORDS "OTHER THAN ONE TO WHOM SUBSECTION (D) OF THIS SECTION IS
APPLICABLE."  (FN1)  SUBSECTION (D) (FN2) REFERRED TO ALIENS DEPORTABLE
UNDER THE ACT OF OCTOBER 16, 1918.  SECTION 22 OF THE INTERNAL SECURITY
ACT OF 1950 AMENDED THE 1918 ACT TO INCLUDE COMMUNISTS, (FN3) AND THUS
TERMINATED THE DISCRETIONARY AUTHORITY UNDER SEC. 19(C) AS TO ANY ALIEN
WHO WAS DEPORTABLE BECAUSE OF MEMBERSHIP IN THE COMMUNIST PARTY. 
PETITIONER OFFERED NO EVIDENCE ON THIS POINT, ALTHOUGH THE REGULATIONS
PLACE ON HIM THE BURDEN OF PROOF AS TO "THE STATUTORY REQUIREMENTS
PRECEDENT TO THE EXERCISE OF DISCRETIONARY RELIEF."  8 CFR, 1949 ED.,
SEC. 151.3(E), AS AMENDED, 15 FED. REG. 7638.  THIS REGULATION IS
COMPLETELY CONSISTENT WITH SEC. 19(C).  THE LANGUAGE OF THAT SECTION,
IN CONTRAST WITH THE STATUTORY PROVISIONS GOVERNING DEPORTATION,
IMPOSES THE GENERAL BURDEN OF PROOF UPON THE APPLICANT. 

IT FOLLOWS THAT AN APPLICANT FOR SUSPENSION, "A MATTER OF DISCRETION
AND OF ADMINISTRATIVE GRACE," HINTOPOULOS V. SHAUGHNESSY, 353 U.S. 72,
77 (1957), MUST, UPON THE REQUEST OF THE ATTORNEY GENERAL, SUPPLY SUCH
INFORMATION THAT IS WITHIN HIS KNOWLEDGE AND HAS A DIRECT BEARING ON
HIS ELIGIBILITY UNDER THE STATUTE.  THE ATTORNEY GENERAL MAY, OF
COURSE, EXERCISE HIS AUTHORITY OF GRACE THROUGH DULY DELEGATED AGENTS. 
JAY V. BOYD, 351 U.S. 345 (1956).  PERHAPS THE PETITIONER WAS JUSTIFIED
IN HIS PERSONAL REFUSAL TO ANSWER - A QUESTION WE DO NOT PASS UPON -
BUT THIS DID NOT RELIEVE HIM UNDER THE STATUTE OF THE BURDEN OF
ESTABLISHING THE AUTHORITY OF THE ATTORNEY GENERAL TO EXERCISE HIS
DISCRETION IN THE FIRST PLACE.  AFFIRMED. 

FN1  SECTION 19(C) PROVIDED, IN RELEVANT PART: 

"IN THE CASE OF ANY ALIEN (OTHER THAN ONE TO WHOM SUBSECTION (D) OF
THIS SECTION IS APPLICABLE) 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  ...  (2) SUSPEND DEPORTATION OF
SUCH ALIEN IF HE IS NOT INELIGIBLE FOR NATURALIZATION  ...  IF HE FINDS
...  (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  ...  ."  8 U.S.C. (1946 ED., SUPP. II) SEC.
155(C). 

FN2  SECTION 19(D), AS AMENDED: 

"THE PROVISIONS OF SUBSECTION (C) SHALL NOT BE APPLICABLE IN THE CASE
OF ANY ALIEN WHO IS DEPORTABLE UNDER (1) THE ACT OF OCTOBER 16, 1918
(40 STAT. 1008; U.S.C., TITLE 8, SEC. 137), ENTITLED 'AN ACT TO EXCLUDE
AND EXPEL FROM THE UNITED STATES ALIENS WHO ARE MEMBERS OF THE
ANARCHIST AND SIMILAR CLASSES,' AS AMENDED  ...  ."  54 STAT. 672, 8
U.S.C. (1946 ED.)  SEC.  155(D). 

FN3  THE ACT OF OCTOBER 16, 1918, C. 186, 40 STAT. 1012, AS AMENDED
BY THE INTERNAL SECURITY ACT OF 1950, C. 1024, SEC. 22, 64 STAT. 1006
1008, PROVIDED IN PERTINENT PART: 

"ANY ALIEN WHO IS A MEMBER OF ANY ONE OF THE FOLLOWING CLASSES SHALL
BE EXCLUDED FROM ADMISSION INTO THE UNITED STATES: 

     *         *         *         *     * 

"(2)  ALIENS WHO, AT ANY TIME, SHALL BE OR SHALL HAVE BEEN MEMBERS OF
ANY OF THE FOLLOWING CLASSES: 

     *      *         *         *         * 

"(C)  ALIENS WHO ARE MEMBERS OF OR AFFILIATED WITH (I) THE COMMUNIST
PARTY OF THE UNITED STATES, (II) ANY OTHER TOTALITARIAN PARTY OF THE
UNITED STATES, (III) THE COMMUNIST POLITICAL ASSOCIATION, (IV) THE
COMMUNIST OR OTHER TOTALITARIAN PARTY OF ANY STATE OF THE UNITED
STATES, OF ANY FOREIGN STATE, OR OF ANY POLITICAL OR GEOGRAPHICAL
SUBDIVISION OF ANY FOREIGN STATE; (V) ANY SECTION, SUBSIDIARY, BRANCH,
AFFILIATE, OR SUBDIVISION OF ANY SUCH ASSOCIATION OR PARTY; OR (VI) THE
DIRECT PREDECESSORS OR SUCCESSORS OF ANY SUCH ASSOCIATION OR PARTY,
REGARDLESS OF WHAT NAME SUCH GROUP OR ORGANIZATION MAY HAVE USED, MAY
NOW BEAR, OR MAY HEREAFTER ADOPT: 

     *         *         *         *         * 

"SEC. 4.  (A) ANY ALIEN WHO WAS AT THE TIME OF ENTERING THE UNITED
STATES, OR HAS BEEN AT ANY TIME THEREAFTER,  ...  A MEMBER OF ANY ONE
OF THE CLASSES OF ALIENS ENUMERATED IN SECTION 1(2) OF THIS ACT, SHALL,
UPON THE WARRANT OF THE ATTORNEY GENERAL, BE TAKEN INTO CUSTODY AND
DEPORTED  ...  ." 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

IT HAS BECOME MUCH THE FASHION TO IMPUTE WRONGDOING TO OR TO IMPOSE
PUNISHMENT ON A PERSON FOR INVOKING HIS CONSTITUTIONAL RIGHTS.  (FN1)
LLOYD BARENBLATT HAS SERVED A JAIL SENTENCE FOR INVOKING HIS FIRST
AMENDMENT RIGHTS.  SEE BARENBLATT V. UNITED STATES, 360 U.S. 109.  AS
THIS IS WRITTEN, DR. WILLARD UPHAUS, AS A CONSEQUENCE OF OUR DECISION
IN UPHAUS V. WYMAN, 360 U.S. 72, IS IN JAIL IN NEW HAMPSHIRE FOR
INVOKING RIGHTS GUARANTEED TO HIM BY THE FIRST AND FOURTEENTH
AMENDMENTS.  SO IS THE MATHEMATICIAN, HORACE CHANDLER DAVIS, WHO
INVOKED THE FIRST AMENDMENT AGAINST THE HOUSE UN-AMERICAN ACTIVITIES
COMMITTEE.  DAVIS V. UNITED STATES, 269 F.2D 357 (C.A. 6TH CIR.).
TODAY WE ALLOW INVOCATION OF THE FIFTH AMENDMENT TO SERVE, IN EFFECT
THOUGH NOT IN TERMS, AS PROOF THAT AN ALIEN LACKS THE "GOOD MORAL
CHARACTER" WHICH HE MUST HAVE UNDER SEC. 19(C) OF THE IMMIGRATION ACT
IN ORDER TO BECOME ELIGIBLE FOR THE DISPENSING POWERS ENTRUSTED TO THE
ATTORNEY GENERAL. 

THE IMPORT OF WHAT WE DO IS UNDERLINED BY THE FACT THAT THERE IS NOT
A SHRED OF EVIDENCE OF BAD CHARACTER IN THE RECORD AGAINST THIS ALIEN. 
THE ALIEN HAS FULLY SATISFIED THE REQUIREMENTS OF SEC. 19(C) AS SHOWN
BY THE RECORD.  HE ENTERED AS A STUDENT IN 1928 AND PURSUED HIS STUDIES
UNTIL 1938.  HE PLANNED TO RETURN TO KOREA BUT THE OUTBREAK OF
HOSTILITIES BETWEEN CHINA AND JAPAN IN 1937 CHANGED HIS MIND.  SINCE
1938 HE HAS BEEN CONTINUOUSLY EMPLOYED IN GAINFUL OCCUPATIONS.  THAT IS
THE SOLE BASIS OF HIS DEPORTABILITY.  (FN2)  THE RECORD SHOWS NO
CRIMINAL CONVICTIONS, NOTHING THAT COULD BRING STIGMA TO THE MAN.  HIS
EMPLOYMENT SINCE 1938 HAS BEEN AS MANAGER OF A PRODUCE COMPANY, AS
CHEMIST, AS FOUNDRY WORKER, AND AS A MEMBER OF O.S.S.  DURING THE
LATTER PART OF WORLD WAR II. HE ALSO WAS SELF-EMPLOYED IN THE PRINTING
BUSINESS, PUBLISHING A PAPER "KOREAN INDEPENDENCE."  NO ONE CAME
FORWARD TO TESTIFY THAT HE WAS A COMMUNIST.  THERE IS NOT A WORD OF
EVIDENCE THAT HE HAD BEEN A MEMBER OF THE COMMUNIST PARTY AT ANY TIME. 
THE ONLY THING THAT STANDS IN HIS WAY OF BEING ELIGIBLE FOR SUSPENSION
OF DEPORTATION BY THE ATTORNEY GENERAL IS HIS INVOCATION OF THE FIFTH
AMENDMENT. 

THE STATUTE SAYS NOTHING ABOUT THE NEED OF AN ALIEN TO PROVE HE NEVER
WAS A COMMUNIST.  IF THE QUESTION OF COMMUNIST PARTY MEMBERSHIP HAD
NEVER BEEN ASKED AND PETITIONER HAD NEVER INVOKED THE FIFTH AMENDMENT,
CAN IT BE THAT HE WOULD STILL BE INELIGIBLE FOR SUSPENSION?  IT IS FOR
ME UNTHINKABLE.  PRESUMPTION OF INNOCENCE IS TOO DEEPLY INGRAINED IN
OUR SYSTEM FOR ME TO BELIEVE THAT AN ALIEN WOULD HAVE THE BURDEN OF
ESTABLISHING A NEGATIVE.  WHAT THE CASE COMES DOWN TO IS SIMPLY THIS:
INVOCATION OF THE FIFTH AMENDMENT CREATES SUSPICIONS AND DOUBTS THAT
CLOUD THE ALIEN'S CLAIM OF GOOD MORAL CHARACTER. 

IMPUTATION OF GUILT FOR INVOKING THE PROTECTION OF THE FIFTH
AMENDMENT CARRIES US BACK SOME CENTURIES TO THE HATED OATH EX OFFICIO
USED BOTH BY THE STAR CHAMBER AND THE HIGH COMMISSION.  REFUSAL TO
ANSWER WAS CONTEMPT.  (FN3)  THUS WAS STARTED IN THE ENGLISH-SPEAKING
WORLD THE GREAT REBELLION AGAINST OATHS THAT EITHER VIOLATED THE
CONSCIENCE OF THE WITNESS OR WERE USED TO OBTAIN EVIDENCE AGAINST HIM. 
SEE ULLMANN V. UNITED STATES, 350 U.S. 422, 445-449 (DISSENTING
OPINION). 

I HAD ASSUMED THAT INVOCATION OF THE PRIVILEGE IS A NEUTRAL ACT, AS
CONSISTENT WITH INNOCENCE AS WITH GUILT.  WE POINTED OUT IN SLOCHOWER
V. BOARD OF EDUCATION, 350 U.S. 551, 557-558:  "THE PRIVILEGE SERVES TO
PROTECT THE INNOCENT WHO OTHERWISE MIGHT BE ENSNARED BY AMBIGUOUS
CIRCUMSTANCES."  WE RE-EMPHASIZED THAT VIEW IN GRUNEWALD V. UNITED
STATES, 353 U.S. 391, 421: "RECENT RE-EXAMINATION OF THE HISTORY AND
MEANING OF THE FIFTH AMENDMENT HAS EMPHASIZED ANEW THAT ONE OF THE
BASIC FUNCTIONS OF THE PRIVILEGE IS TO PROTECT INNOCENT MEN." 

WE WENT FURTHER IN KONIGSBERG V. STATE BAR, 353 U.S. 252, 267, AND IN
SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 246, AND HELD THAT
EVEN PAST MEMBERSHIP IN THE COMMUNIST PARTY WAS NOT BY ITSELF EVIDENCE
THAT THE PERSON WAS OF BAD MORAL CHARACTER. 

WE THEREFORE TODAY MAKE A MARKED DEPARTURE FROM PRECEDENT WHEN WE
ATTACH A PENALTY FOR RELIANCE ON THE FIFTH AMENDMENT.  THE COURT IN
TERMS DOES NOT, AND CANNOT, REST ITS DECISION ON THE GROUND THAT BY
INVOKING THE FIFTH AMENDMENT THE PETITIONER GAVE EVIDENCE OF BAD MORAL
CHARACTER.  YET THE EFFECT OF ITS DECISION IS PRECISELY THE SAME.  IN
SO HOLDING WE DISREGARD HISTORY AND, IN THE MANNER OF THE DESPISED OATH
EX OFFICIO, ATTRIBUTE WRONGDOING TO THE REFUSAL TO ANSWER.  IT SEEMS TO
ME INDEFENSIBLE FOR COURTS WHICH ACT UNDER THE CONSTITUTION TO DRAW AN
INFERENCE OF BAD MORAL CHARACTER FROM THE INVOCATION OF A PRIVILEGE
WHICH WAS DEEMED SO IMPORTANT TO THIS FREE SOCIETY THAT IT WAS EMBEDDED
IN THE BILL OF RIGHTS. 

FN1  MEIKLEJOHN, POLITICAL FREEDOM (1960)  PP. 154-155, AFTER
REFERRING TO THE EFFORTS OF LEGISLATIVE COMMITTEES TO COMPEL AMERICANS
TO GIVE TESTIMONY "ABOUT THEIR POLITICAL BELIEFS AND AFFILIATIONS,"
GOES ON TO SAY:  "  ...  IN THAT FIELD, THE FIFTH AND THE FIRST
AMENDMENTS ARE JOINED TOGETHER, AS THEIR MOTIVES HAVE BEEN JOINED FOR
CENTURIES, IN REQUIRING OF FREE CITIZENS AND OF FREE INSTITUTIONS THAT
THEY RESIST WITH ALL THEIR MIGHT THE IRRESPONSIBLE USURPATIONS OF A
LEGISLATURE WHICH WOULD ATTEMPT TO TELL MEN WHAT THEY MAY BELIEVE AND
WHAT THEY MAY NOT BELIEVE, WITH WHOM THEY MAY ASSOCIATE AND WITH WHOM
THEY MAY NOT ASSOCIATE." 

FN2  PETITIONER WAS ADMITTED AS A STUDENT PURSUANT TO SEC. 4(E) OF
THE IMMIGRATION ACT OF 1924.  43 STAT. 155, 8 U.S.C. (1946 ED.)  SEC. 
204(E). 

FN3  SEE MAGUIRE, ATTACK OF THE COMMON LAWYERS ON THE OATH EX OFFICIO
AS ADMINISTERED IN THE ECCLESIASTICAL COURTS IN ENGLAND, ESSAYS IN
HISTORY AND POLITICAL THEORY (1936), C. VII, P. 199, AT 215, WHERE THE
PROCEDURE OF THE HIGH COMMISSION IS DESCRIBED: 

"THUS THE DEFENDANT SWORE TO ANSWER FULLY AND TRULY ALL QUESTIONS
WHICH MIGHT BE PUT TO HIM BEFORE HE KNEW THE CHARGES IN DETAIL, AND IN
CASES EX OFFICIO WITHOUT KNOWING THE ACCUSER.  EITHER PARTY COULD
PRODUCE WITNESSES WHO GAVE THEIR DEPOSITIONS ON OATH, BUT IN THE MOST
IMPORTANT CASES EX OFFICIO MERO THE WHOLE TRIAL WAS BASED ON THE
ANSWERS OF THE DEFENDANT.  AS IN THE STAR CHAMBER THE JUDGES DELIVERED
THEIR OPINIONS SERIATIM AND THE DECREE ACCORDED WITH THE DECISION OF
THE MAJORITY. 

"THUS THE CRUX OF THE PROCEDURE WAS THE OATH EX OFFICIO.  UNTIL THE
DEFENDANT HAD BEEN SWORN, THE ARTICLES FOR HIS EXAMINATION COULD NOT BE
PRODUCED; UNTIL HE HAD BEEN EXAMINED, THE CASE COULD NOT PROCEED TO
TRIAL.  REFUSAL OR PARTIAL ANSWERS CONSTITUTED CONTEMPT, FOLLOWED BY
IMPRISONMENT; PERJURY WAS A CARDINAL SIN." 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

SUSPENSION OF DEPORTATION MAY BE "A MATTER OF DISCRETION AND OF
ADMINISTRATIVE GRACE," UNITED STATES EX REL. HINTOPOULOS V.
SHAUGHNESSY, 353 U.S. 72, 77, BUT ELIGIBILITY FOR SUSPENSION, FOR THE
EXERCISE OF THAT DISCRETION, IS VERY MUCH A MATTER OF LAW.  MCGRATH V.
KRISTENSEN, 340 U.S. 162, 169.  THE DECISION OF THE BOARD OF
IMMIGRATION APPEALS WAS THAT PETITIONER WAS NOT, UNDER THE GOVERNING
STATUTE, ELIGIBLE FOR SUSPENSION; AND ON THAT BASIS ITS ORDER MUST
STAND OR FALL IN COURT.   SECURITIES & EXCHANGE COMM'N V. CHENERY
CORP., 318 U.S. 80, 87.   THE ONLY BASIS OF THE APPEALS BOARD'S
DETERMINATION OF INELIGIBILITY THAT THE GOVERNMENT SERIOUSLY DEFENDS
HERE IS THE BOARD'S FINDING THAT THE PETITIONER HAD NOT SHOWN HE WAS
NOT DEPORTABLE UNDER SECS. 1 AND 4 OF THE ACT OF OCTOBER 16, 1918, 40
STAT. 1012, AS AMENDED BY SEC. 22 OF THE INTERNAL SECURITY ACT OF 1950,
64 STAT. 1006, 1008.  THOSE PROVISIONS RETROACTIVELY MADE DEPORTABLE AN
ALIEN WHO HAD BEEN A COMMUNIST PARTY MEMBER AT ANY TIME SINCE HIS ENTRY
INTO THE UNITED STATES; AND SEC. 19 OF THE 1917 IMMIGRATION ACT, 39
STAT. 889, AS LATER AMENDED, (FN1) UNDER WHICH PETITIONER'S ELIGIBILITY
FOR SUSPENSION WAS DETERMINED, MADE THOSE ALIENS WHO WERE DEPORTABLE ON
THAT BASIS INELIGIBLE FOR SUSPENSION OF DEPORTATION. 

IT HAS NOT BEEN, AND SCARCELY COULD BE, CONTROVERTED THAT THE
GOVERNMENT MUST IN GENERAL BEAR THE BURDEN OF DEMONSTRATING, IN
ADMINISTRATIVE PROCEEDINGS, THE DEPORTABILITY OF AN ALIEN; WHATEVER THE
EXCEPTIONS TO THIS RULE MAY BE, (FN2) IT WAS ESTABLISHED BY THE TIME
RELEVANT HERE THAT WHERE POST-ENTRY MISCONDUCT IS CHARGED AS THE BASIS
FOR DEPORTABILITY, THE BURDEN IS THE GOVERNMENT'S. HUGHES V. TROPELLO,
296 F. 306, 309; WERRMANN V. PERKINS, 79 F.2D 467, 469.  HERE THE
GOVERNMENT NEVER BORE ANY BURDEN OF SHOWING THAT PETITIONER WAS
DEPORTABLE AS HAVING BEEN, SINCE HIS ENTRY, A COMMUNIST.  THE
DETERMINATION OF HIS DEPORTABILITY WAS MADE ON ENTIRELY DIFFERENT
GROUNDS; THAT (AS WAS CONCEDED) HE HAD FAILED TO MAINTAIN THE STUDENT
STATUS ON THE BASIS OF WHICH HE HAD BEEN ADMITTED TO THE UNITED
STATES.  AT THE HEARING ON SUSPENSION OF DEPORTATION THE GOVERNMENT
INTRODUCED LITERALLY NO EVIDENCE EVEN REMOTELY SUGGESTING THAT
PETITIONER HAD EVER BEEN A COMMUNIST; AND MUCH EVIDENCE AS TO
PETITIONER'S GOOD CHARACTER WAS INTRODUCED.  BUT, APPARENTLY AT RANDOM,
AND OUT OF THE BLUE, PETITIONER WAS ASKED ABOUT MEMBERSHIP IN THE
COMMUNIST PARTY; AND HE DECLINED TO ANSWER, CITING HIS CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION.  ON THIS BASIS THE ADMINISTRATIVE
OFFICIALS FOUND THAT HE WAS INELIGIBLE FOR SUSPENSION OF DEPORTATION. 

IF THE BASIS ON WHICH IT WAS SOUGHT TO DEPORT PETITIONER IN THE FIRST
PLACE WAS THAT HE WAS DEPORTABLE AS A COMMUNIST OR EX-COMMUNIST UNDER
SECS. 1 AND 4 OF THE 1918 ACT, AS AMENDED, IT COULD HARDLY BE CONTENDED
THAT THIS WOULD BE EVIDENCE, LET ALONE SUFFICIENT EVIDENCE, THAT HE WAS
OR HAD BEEN A COMMUNIST, ON WHICH TO BASE A FINDING OF DEPORTABILITY. 
CF. SLOCHOWER V. BOARD OF HIGHER EDUCATION, 350 U.S. 551.  THE
PROVISION IN SEC. 19 OF THE 1917 IMMIGRATION ACT, AS AMENDED, WHICH IS
RELIED ON, DISQUALIFIES FROM SUSPENSION AN ALIEN WHO IS "DEPORTABLE"
UNDER THE OTHER ACT; AND ONE WOULD THINK THE BURDEN OF PROOF OF
DEPORTABILITY IN BOTH CIRCUMSTANCES SHOULD BE THE SAME.  THE MOST
OBVIOUS CASE, OF COURSE, FOR THE APPLICATION OF SEC. 19'S
DISQUALIFICATION FROM SUSPENSION IS THE ONE IN WHICH THE GOVERNMENT, IN
THE DEPORTATION PROCEEDINGS, HAS ALREADY BORNE THE BURDEN OF PROVING
THE ALIEN DEPORTABLE UNDER THE AMENDED 1918 ACT.  IT IS AN ANOMALY THAT
THE BURDEN OF PROOF SHIFTS, THERE CEASES TO BE A REQUIREMENT OF
EVIDENCE OF DEPORTABILITY AS A COMMUNIST OR EX-COMMUNIST, AND THE ALIEN
MUST PROVE A NEGATIVE IN ORDER TO QUALIFY FOR SUSPENSION, WHEN THE
GOVERNMENT HAS CHOSEN TO BASE DEPORTATION ON SOME OTHER GROUND.  IN
SUPPORT OF THIS THE COURT CITES ONLY A REGULATION WHICH STATED IN
GENERAL TERMS THAT IT WAS UP TO THE ALIEN TO SHOW HIS ELIGIBILITY FOR
SUSPENSION.  8 CFR, 1949 ED., SEC. 151.3(E), AS ADDED, 15 FED. REG.
7638. 

I WOULD THINK IT PERFECTLY PLAIN THAT SUCH A REGULATION, AS APPLIED
IN THIS CASE, WOULD BE CONTRARY TO THE STATUTORY SCHEME, PROPERLY AND
RESPONSIBLY CONSTRUED.  (FN3)  IN THE FIRST PLACE, AS I HAVE NOTED, IT
TURNS AROUND THE ORDINARY RULES AS TO THE BURDEN OF PROOF AS TO WHICH
PARTY SHALL SHOW "DEPORTABILITY."  IT REQUIRES THE ALIEN TO PROVE A
NEGATIVE - THAT HE NEVER WAS A COMMUNIST SINCE HE ENTERED THE COUNTRY -
WHEN NO ONE HAS SAID OR INTIMATED THAT HE WAS.  SUCH PROOF WOULD
NECESSARILY LEAD TO PETITIONER'S BEARING THE LABORING OAR IN SHOWING
THAT ALL HIS POLITICAL OR ECONOMIC EXPRESSIONS IN THIS COUNTRY WERE
INDEPENDENT OF ANY COVERT CONNECTION WITH THE COMMUNIST PARTY.  THE
EFFECT OF IMPOSING SUCH A BURDEN OF EXCULPATION ON THE EXERCISE, FOR
EXAMPLE, OF NON-COMMUNIST POLITICAL ACTION ON BEHALF OF CAUSES WHICH
COMMUNISTS MIGHT ALSO HAPPEN TO FAVOR IS OBVIOUS.  IN FACT, ON THIS
VERY BASIS, WE NOT SO LONG AGO STRUCK DOWN A STATE STATUTE WHICH PLACED
ON AN INDIVIDUAL DESIRING A TAX EXEMPTION THE BURDEN OF PROOF TO SHOW
THAT HIS POLITICAL ACTIVITIES WERE NOT OF A PROSCRIBED NATURE - OF A
NATURE, MOREOVER, WHICH WE ASSUMED THE STATE HAD THE POWER DIRECTLY TO
PROSCRIBE.  SPEISER V. RANDALL, 357 U.S. 513, 520.  WE HAVE THIS TERM
REAFFIRMED THE CENTRAL PRINCIPLE OF THAT CASE, ITS INHIBITION ON
PROCEDURAL DEVICES WHICH, THOUGH DESIGNED TO REACH LEGITIMATE ENDS,
IMPOSE BURDENS ON THE EXERCISE OF THE FREEDOM OF SPEECH, IN A
SUBSEQUENT DECISION, BY STRIKING DOWN ANOTHER STATE ENACTMENT.  SMITH
V. CALIFORNIA, 361 U.S. 147.  ON SUCH A BASIS WE DECLARED THE
ENACTMENTS OF SOVEREIGN STATES UNCONSTITUTIONAL; I THINK WE SHOULD
HARDLY BE LESS WILLING TO APPLY THE SAME DOCTRINE TO SET ASIDE, AS NOT
STATUTORILY WARRANTED, A FEDERAL ADMINISTRATIVE REGULATION WHICH
ANOMALOUSLY TURNS ABOUT THE ORDINARY STATE OF THE BURDEN OF PROOF AS TO
"DEPORTABILITY," AND IN FACT SO FAR DISPENSES WITH THE ORDINARY
REQUIREMENT OF EVIDENCE OF "DEPORTABILITY" THAT THE ALIEN MUST SHOULDER
THE BURDEN OF NEGATING IT EVEN WHERE THE GOVERNMENT HAS INTRODUCED NO
EVIDENCE AT ALL ON THE ISSUE. 

WE ARE, APART FROM CONSTRUCTION OF THE CONSTITUTION, RESPONSIBLE FOR
THE PROPER CONSTRUCTION OF ACTS OF CONGRESS, AND FOR DETERMINING THE
VALIDITY OF CHALLENGED ADMINISTRATIVE REGULATIONS AND PROCEDURES UNDER
THEM.  HERE WE ARE CALLED UPON ONLY TO PUT A RATIONAL CONSTRUCTION UPON
A FEDERAL STATUTE AND THE ALLOCATION OF THE BURDEN OF PROOF UNDER IT,
THAT WILL PROMOTE THE STATUTE'S INTERNAL CONSISTENCY AND MINIMIZE ITS
FRICTIONS WITH THE FIRST AMENDMENT.  ONE OF THE RELEVANT ENACTMENTS,
SEC. 22 OF THE 1950 INTERNAL SECURITY ACT, IS A HARSH ONE WHOSE
CONSTITUTIONALITY WAS UPHELD HERE ONLY ON HISTORICAL GROUNDS.  SEE
GALVAN V. PRESS, 347 U.S. 522, 530-532.  BY SUBSCRIBING TO THE
ANOMALOUS ALLOCATION OF THE BURDEN OF PROOF HERE, WE INCREASE THE
STATUTE'S HARSHNESS, PROMOTE THE PROCEDURAL RESTRICTION ON THE FREEDOM
OF SPEECH WHICH WE CONDEMNED IN SPEISER AND SMITH, AND IN PRACTICAL
EFFECT, BECAUSE OF THE ALLOCATION, LET THIS PETITIONER'S INVOCATION OF
HIS CONSTITUTIONAL PRIVILEGE BE EQUATED WITH A DEMONSTRATION OF HIS
DEPORTABILITY AS TO THE MATTERS ON WHICH HE INVOKED THE PRIVILEGE.  I
CANNOT SUBSCRIBE TO A CONSTRUCTION THAT HAS THIS EFFECT, AND
ACCORDINGLY DISSENT. 

FN1  THE SUSPENSION PROVISIONS, WITH THEIR REFERENCE TO DEPORTABILITY
UNDER THE 1918 ACT AS A DISQUALIFICATION, WERE ADDED TO THE OLD SEC. 19
THROUGH THE AMENDMENTS OF 1940 AND 1948, 54 STAT. 672, 62 STAT. 1206. 

THE VALIDITY OF THE PROCEEDINGS HERE IS TO BE TESTED UNDER THE LAW AS
IT STOOD AS OF THE TIME OF THE ADMINISTRATIVE HEARING AND REVIEW IN
1951 AND EARLY 1952, BEFORE THE PASSAGE OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 163, 8 U.S.C. SEC. 1101 ET SEQ., ON
JUNE 27, 1952.  SEE SEC. 405(A) OF THE LATER ACT, 66 STAT. 280. 

FN2  SECTION 23 OF THE 1924 IMMIGRATION ACT, 43 STAT. 165, PLACED THE
BURDEN ON THE ALIEN IN A DEPORTATION PROCEEDING TO SHOW THAT HE HAD
BEEN LAWFULLY ADMITTED TO THE COUNTRY.  THE CURRENT ACT IS TO THE SAME
EFFECT.  SEC. 291, 66 STAT. 234, 8 U.S.C. SEC. 1361.  THE COURTS IN THE
CASES CITED IN TEXT DREW A SHARP DISTINCTION BETWEEN THIS ISSUE AND THE
MATTER OF DEPORTABILITY OWING TO POST-ADMISSION CONDUCT.  THE FAILURE
OF CONGRESS TO SPECIFY OTHER ISSUES ON WHICH THE ALIEN HAS THE BURDEN
IS CONFIRMATION OF THE CORRECTNESS OF THESE DECISIONS.  SEE UNITED
STATES EX REL. BILOKUMSKY V. TOD, 263 U.S. 149, 153. 

FN3  SECTION 19(C) IN TERMS IMPOSES A BURDEN OF PROOF ON THE ALIEN AS
TO HIS GOOD MORAL CHARACTER, BUT IS SILENT AS TO THE BURDEN OF PROOF
OTHERWISE.  AND IT IS IN SEC. 19(D) THAT THE NONELIGIBILITY OF THOSE
DEPORTABLE UNDER THE AMENDED 1918 ACT IS PROVIDED FOR; AND SEC. 19(D)
IS INEXPLICIT AS TO THE BURDEN OF PROOF.  ACCORDINGLY, NO SUPPORT FOR
THIS APPLICATION OF THE REGULATION CAN BE FOUND IN SEC. 19(C). 
..END :








DEFOE V. SUCHMAN 363 U.S. 417 


NO. 896.  DECIDED JUNE 13, 1960.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


DEFOE V. SUCHMAN ET AL. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















SECURITIES AND EXCHANGE COMMISSION V. LEA FABRICS, INC. 363 U.S. 417 


NO. 905.  DECIDED JUNE 13, 1960.  - REPORTED BELOW:  272 F.2D 769. 


CERTIORARI GRANTED; JUDGMENT VACATED AND CASE REMANDED TO THE DISTRICT
COURT WITH INSTRUCTIONS TO DISMISS THE PETITION AS MOOT. 

SECURITIES AND EXCHANGE COMMISSION V. LEA FABRICS, INC., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT WITH INSTRUCTIONS TO DISMISS THE PETITION AS MOOT. 
..END :












LEVITT & SONS, INC. V. DIVISION AGAINST DISCRIMINATION IN STATE
DEPARTMENT OF EDUCATION 363 U.S. 418  


NO. 865.  DECIDED JUNE 13, 1960.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  31 N.J. 514, 158 A.2D
177. 


LEVITT & SONS, INC., V. DIVISION AGAINST DISCRIMINATION IN STATE
DEPARTMENT OF EDUCATION ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK WOULD NOTE PROBABLE JURISDICTION. 
..END :












BERNSTEIN V. REAL ESTATE COMMISSION OF MARYLAND 363 U.S. 419 


NO. 852.  DECIDED JUNE 13, 1960.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  221 MD. 221, 156 A.2D
657. 


BERNSTEIN ET AL. V. REAL ESTATE COMMISSION OF MARYLAND ET AL. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















DE VEAU V. BRAISTED 363 U.S. 144 


NO. 71.  ARGUED MARCH 1, 1960.  - DECIDED JUNE 6, 1960.  - 5 N.Y.2D 236,
157 N.E.2D 165, AFFIRMED. 


DISQUALIFIES FROM HOLDING OFFICE IN ANY WATERFRONT LABOR ORGANIZATION
ANY PERSON WHO HAS BEEN CONVICTED OF A FELONY AND HAS NOT SUBSEQUENTLY
BEEN PARDONED OR HAD HIS DISABILITY REMOVED BY A CERTIFICATE OF GOOD
CONDUCT FROM THE BOARD OF PAROLE.  HELD:  THIS SECTION DOES NOT VIOLATE
THE SUPREMACY CLAUSE OF THE CONSTITUTION BY CONFLICTING INVALIDLY WITH
THE NATIONAL LABOR RELATIONS ACT OR THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959; IT DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT; AND IT IS NOT AN EX POST FACTO LAW OR BILL OF
ATTAINDER FORBIDDEN BY ARTICLE I, SEC. 10 OF THE CONSTITUTION.  PP. 144
161. 

DE VEAU V. BRAISTED. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

OPINION OF MR. JUSTICE FRANKFURTER, IN WHICH MR. JUSTICE CLARK, MR.
JUSTICE WHITTAKER AND MR. JUSTICE STEWART JOIN, AND JUDGMENT OF THE
COURT, ANNOUNCED BY MR. JUSTICE BRENNAN. 

THIS IS AN ACTION BROUGHT IN THE SUPREME COURT OF RICHMOND COUNTY,
NEW YORK, FOR A DECLARATORY JUDGMENT REGARDING THE CONSTITUTIONAL
VALIDITY OF SEC. 8 OF THE NEW YORK WATERFRONT COMMISSION ACT OF 1953
(N.Y. LAWS 1953, CC. 882, 883; MCK.  UNCONSOL.  LAWS, SEC. 6700AA ET
SEQ.), AND FOR AN INJUNCTION RESTRAINING ITS OPERATION.  THE SECTION IS
CLAIMED TO BE IN CONFLICT WITH THE SUPREMACY CLAUSE OF THE UNITED
STATES CONSTITUTION; IT IS ALSO CHALLENGED UNDER THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT, AND AS AN EX POST FACTO LAW AND BILL OF
ATTAINDER FORBIDDEN BY ART. I, SEC. 10, OF THE CONSTITUTION. 

THE WATERFRONT COMMISSION ACT FORMULATES A DETAILED SCHEME FOR
GOVERNMENTAL SUPERVISION OF EMPLOYMENT ON THE WATERFRONT IN THE PORT OF
NEW YORK.  THE RELEVANT PART OF THE SPECIFIC PROVISION, SEC. 8, UNDER
ATTACK FOLLOWS: 

"NO PERSON SHALL SOLICIT, COLLECT OR RECEIVE ANY DUES, ASSESSMENTS,
LEVIES, FINES OR CONTRIBUTIONS WITHIN THE STATE FROM EMPLOYEES
REGISTERED OR LICENSED PURSUANT TO THE PROVISIONS OF THIS ACT (PIER
SUPERINTENDENTS, HIRING AGENTS, LONGSHOREMEN AND PORT WATCHMEN) FOR OR
ON BEHALF OF ANY LABOR ORGANIZATION REPRESENTING ANY SUCH EMPLOYEES, IF
ANY OFFICER OR AGENT OF SUCH ORGANIZATION HAS BEEN CONVICTED BY A COURT
OF THE UNITED STATES, OR ANY STATE OR TERRITORY THEREOF, OF A FELONY
UNLESS HE HAS BEEN SUBSEQUENTLY PARDONED THEREFOR BY THE GOVERNOR OR
OTHER APPROPRIATE AUTHORITY OF THE STATE OR JURISDICTION IN WHICH SUCH
CONVICTION WAS HAD OR HAS RECEIVED A CERTIFICATE OF GOOD CONDUCT FROM
THE BOARD OF PAROLE PURSUANT TO THE PROVISIONS OF THE EXECUTIVE LAW TO
REMOVE THE DISABILITY." 

THE COMPLAINT UPON WHICH THIS ACTION IS BASED MAKES THE FOLLOWING
ALLEGATIONS.  APPELLANT WAS A MEMBER, AND BEGINNING IN 1950 HAD BEEN
SECRETARY-TREASURER, OF LOCAL 1346, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, A LABOR ORGANIZATION WITH OFFICES IN RICHMOND COUNTY, NEW
YORK, REPRESENTING "EMPLOYEES REGISTERED OR LICENSED PURSUANT TO" THE
WATERFRONT COMMISSION ACT.  AS SECRETARY-TREASURER APPELLANT HAD
CONTROL OF THE LOCAL'S FUNDS AND ALSO SERVED AS A BARGAINING
REPRESENTATIVE.  IN 1920 APPELLANT HAD PLEADED GUILTY TO A CHARGE OF
GRAND LARCENY IN NEW YORK AND HAD RECEIVED A SUSPENDED SENTENCE.  IT IS
NOT ALLEGED THAT APPELLANT HAS EVER APPLIED FOR OR RECEIVED A PARDON OR
A "CERTIFICATE OF GOOD CONDUCT."  THREE YEARS AFTER THE ENACTMENT OF
THE WATERFRONT COMMISSION ACT, IN 1956, THE PRESIDENT OF THE
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION WAS INFORMED BY THE APPELLEE,
WHO WAS AND IS THE DISTRICT ATTORNEY OF RICHMOND COUNTY, NEW YORK, THAT
BECAUSE OF APPELLANT'S CONVICTION SEC. 8 OF THE ACT PROHIBITED ANY
PERSON FROM COLLECTING DUES ON BEHALF OF LOCAL 1346, SO LONG AS
APPELLANT REMAINED ITS OFFICER OR AGENT.  APPELLEE THREATENED TO
PROSECUTE ANYONE COLLECTING DUES FOR THE LOCAL WHILE APPELLANT REMAINED
ITS OFFICER.  BY REASON OF SEC. 8 AND THIS THREAT APPELLANT WAS
SUSPENDED AS AN OFFICER OF LOCAL 1346, WHEREUPON HE BROUGHT THIS
ACTION. 

THE APPELLEE MOVED TO DISMISS THE COMPLAINT, AND FOR JUDGMENT ON THE
PLEADINGS IN HIS FAVOR.  THIS MOTION WAS GRANTED.  THE COURT, HOLDING
THAT APPELLANT'S 1920 CONVICTION WAS A CONVICTION FOR A FELONY WITHIN
THE MEANING OF SEC. 8, SUSTAINED THE VALIDITY OF THAT SECTION.  11
MISC.  2D 661, 166 N.Y.S.2D 751.  THIS JUDGMENT WAS AFFIRMED BY THE
APPELLATE DIVISION OF THE SUPREME COURT, 5 A.D.2D 603, 174 N.Y.S.2D
596, AND BY THE COURT OF APPEALS OF NEW YORK, 5 N.Y.2D 236, 157 N.E.2D
165.  SEE ALSO HAZELTON V. MURRAY, 21 N.J. 115, 121 A.2D 1.  SINCE A
STATUTE OF A STATE HAS BEEN UPHELD BY THE HIGHEST COURT OF THE STATE
AGAINST A FEDERAL CONSTITUTIONAL ATTACK, THE CASE IS PROPERLY HERE ON
APPEAL.  361 U.S. 806.  (FN1) 

DUE CONSIDERATION OF THE CONSTITUTIONAL CLAIMS THAT ARE MADE REQUIRES
THAT SEC. 8 BE PLACED IN THE CONTEXT OF THE STRUCTURE AND HISTORY OF
THE LEGISLATION OF WHICH IT IS A PART.  THE NEW YORK WATERFRONT
COMMISSION ACT WAS AN ENDEAVOR BY NEW YORK AND NEW JERSEY TO COPE WITH
LONG-STANDING EVILS ON THEIR JOINT WATERFRONT IN THE PORT OF NEW YORK. 
THE SOLUTION WHICH WAS EVOLVED BETWEEN THE TWO STATES EMBODIES NOT ONLY
LEGISLATION BY EACH BUT ALSO JOINT ACTION BY WAY OF A CONSTITUTIONAL
COMPACT BETWEEN THEM, APPROVED BY CONGRESS, INCLUDING THE ESTABLISHMENT
OF A BI-STATE WATERFRONT COMMISSION. 

FOR YEARS THE NEW YORK WATERFRONT PRESENTED A NOTORIOUSLY SERIOUS
SITUATION.  URGENT NEED FOR DRASTIC REFORM WAS GENERALLY RECOGNIZED. 
THOROUGHGOING INVESTIGATIONS OF THE MOUNTING ABUSES WERE BEGUN IN 1951
BY THE NEW YORK STATE CRIME COMMISSION AND THE LAW ENFORCEMENT COUNCIL
OF NEW JERSEY.  AFTER EXTENSIVE HEARINGS, THE NEW YORK CRIME COMMISSION
IN MAY 1953 PUBLISHED A DETAILED REPORT (4TH REPORT OF THE NEW YORK
STATE CRIME COMMISSION, NEW YORK STATE LEG.  DOC.  NO. 70 (1953)) ON
THE EVILS ITS INVESTIGATION DISCLOSED AND THE LEGISLATIVE REMEDIES
THESE WERE THOUGHT TO REQUIRE.  THE COMMISSION REPORTED THAT THE
SKULDUGGERIES ON THE WATERFRONT WERE LARGELY DUE TO THE DOMINATION OVER
WATERFRONT EMPLOYMENT GAINED BY THE INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AS THEN CONDUCTED.  ITS EMPLOYMENT PRACTICES EASILY LED TO
CORRUPTION, AND MANY OF ITS OFFICIALS PARTICIPATED IN DISHONESTIES. 
THE PRESENCE ON THE WATERFRONT OF CONVICTED FELONS IN MANY INFLUENTIAL
POSITIONS WAS AN IMPORTANT CAUSATIVE FACTOR IN THIS APPALLING
SITUATION.  IT WAS THUS DESCRIBED TO CONGRESS IN THE COMPACT SUBMITTED
BY NEW YORK AND NEW JERSEY FOR ITS CONSENT: 

"  ...  THE CONDITIONS UNDER WHICH WATERFRONT LABOR IS EMPLOYED
WITHIN THE PORT OF NEW YORK DISTRICT ARE DEPRESSING AND DEGRADING TO
SUCH LABOR, RESULTING FROM THE LACK OF ANY SYSTEMATIC METHOD OF HIRING,
THE LACK OF ADEQUATE INFORMATION AS TO THE AVAILABILITY OF EMPLOYMENT,
CORRUPT HIRING PRACTICES AND THE FACT THAT PERSONS CONDUCTING SUCH
HIRING ARE FREQUENTLY CRIMINALS AND PERSONS NOTORIOUSLY LACKING IN
MORAL CHARACTER AND INTEGRITY AND NEITHER RESPONSIVE OR RESPONSIBLE TO
THE EMPLOYERS NOR TO THE UNCOERCED WILL OF THE MAJORITY OF THE MEMBERS
OF THE LABOR ORGANIZATIONS OF THE EMPLOYEES; THAT AS A RESULT
WATERFRONT LABORERS SUFFER FROM IRREGULARITY OF EMPLOYMENT, FEAR AND
INSECURITY, INADEQUATE EARNINGS, AN UNDULY HIGH ACCIDENT RATE,
SUBJECTION TO BORROWING AT USURIOUS RATES OF INTEREST, EXPLOITATION AND
EXTORTION AS THE PRICE OF SECURING EMPLOYMENT AND A LOSS OF RESPECT FOR
THE LAW; THAT NOT ONLY DOES THERE RESULT A DESTRUCTION OF THE DIGNITY
OF AN IMPORTANT SEGMENT OF AMERICAN LABOR, BUT A DIRECT ENCOURAGEMENT
OF CRIME WHICH IMPOSES A LEVY OF GREATLY INCREASED COSTS ON FOOD, FUEL
AND OTHER NECESSARIES HANDLED IN AND THROUGH THE PORT OF NEW YORK
DISTRICT. 

"  ...  MANY OF THE EVILS ABOVE DESCRIBED RESULT NOT ONLY FROM THE
CAUSES ABOVE DESCRIBED BUT FROM THE PRACTICES OF PUBLIC LOADERS AT
PIERS AND OTHER WATERFRONT TERMINALS; THAT SUCH PUBLIC LOADERS SERVE NO
VALID ECONOMIC PURPOSE AND OPERATE AS PARASITES EXACTING A HIGH AND
UNWARRANTED TOLL ON THE FLOW OF COMMERCE IN AND THROUGH THE PORT OF NEW
YORK DISTRICT, AND HAVE USED FORCE AND ENGAGED IN DISCRIMINATORY AND
COERCIVE PRACTICES INCLUDING EXTORTION AGAINST PERSONS NOT DESIRING TO
EMPLOY THEM; ...  . 

"  ...  STEVEDORES HAVE ENGAGED IN CORRUPT PRACTICES TO INDUCE THEIR
HIRE BY CARRIERS OF FREIGHT BY WATER AND TO INDUCE OFFICERS AND
REPRESENTATIVES OF LABOR ORGANIZATIONS TO BETRAY THEIR TRUST TO THE
MEMBERS OF SUCH LABOR ORGANIZATIONS."  67 STAT. 541-542. 

SHORTLY AFTER THE CRIME COMMISSION SUBMITTED ITS REPORT, THE GOVERNOR
OF NEW YORK CONDUCTED HEARINGS BASED UPON THE CRIME COMMISSION REPORT. 
AS A RESULT, A WATERFRONT COMMISSION ACT WAS INTRODUCED INTO AND PASSED
BY THE LEGISLATURES OF BOTH STATES IN JUNE 1953.  N.Y. LAWS 1953, CC.
882, 883; N.J. LAWS 1953, CC. 202, 203. 

PART I OF BOTH ACTS CONSTITUTES WHAT BECAME THE COMPACT BETWEEN THE
TWO STATES.  THIS IS THE HEART OF THE LEGISLATION.  IT ESTABLISHES AS A
BI-STATE AGENCY A WATERFRONT COMMISSION OF NEW YORK HARBOR WITH POWER
TO LICENSE, REGISTER AND REGULATE THE WATERFRONT EMPLOYMENT OF PIER
SUPERINTENDENTS, HIRING AGENTS, LONGSHOREMEN AND PORT WATCHMEN, AND TO
LICENSE AND REGULATE STEVEDORES.  IT ENTIRELY PROHIBITS ONE CLASS OF
WATERFRONT EMPLOYMENT, PUBLIC LOADING, FOUND TO BE UNNECESSARY AND
PARTICULARLY INFESTED WITH CORRUPTION.  MANIFESTLY, ONE OF THE MAIN
AIMS OF THE COMPACT IS TO KEEP CRIMINALS AWAY FROM THE WATERFRONT.  THE
ISSUE OF LICENSES TO ENGAGE IN WATERFRONT OCCUPATIONS, OR THE RIGHT TO
BE REGISTERED, DEPENDS UPON FINDINGS BY THE COMMISSION OF GOOD
CHARACTER.  IN PARTICULAR, PAST CONVICTIONS FOR CERTAIN FELONIES
CONSTITUTE SPECIFIC DISABILITIES FOR EACH OCCUPATION, WITH DISCRETION
IN THE COMMISSION TO LIFT THE DISABILITY, EXCEPT IN THE CASE OF PORT
WATCHMEN, WHERE IT CONSTITUTES AN ABSOLUTE BAR TO WATERFRONT
EMPLOYMENT.  A NEW PROCEDURE FOR THE EMPLOYMENT OF LONGSHOREMEN IS ALSO
PROVIDED UNDER THE SUPERVISION OF THE COMMISSION, REPLACING THE
ARCHAIC, CORRUPT "SHAPE-UP." 

UNDER THE REQUIREMENT OF ART. I, SEC. 10, OF THE CONSTITUTION THE
COMPACT WAS SUBMITTED TO THE CONGRESS FOR ITS CONSENT, AND IT WAS
APPROVED.  THIS WAS NO PERFUNCTORY CONSENT.  CONGRESS HAD INDEPENDENTLY
INVESTIGATED THE EVILS THAT GAVE RISE TO THE WATERFRONT COMMISSION
ACTS, AND THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE HAD IN A REPORT ENDORSED THE STATE LEGISLATIVE
SOLUTION EMBODIED IN THESE ACTS.  SEE S. REP. NO. 653, 83D CONG., 1ST
SESS., PP. 49-50.  AFTER THE COMPACT'S SUBMISSION TO CONGRESS, HEARINGS
WERE HELD UPON IT BY THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES, AT WHICH ARGUMENTS WERE MADE BY INTERESTED PARTIES FOR
AND AGAINST THE COMPACT.  APPROVAL WAS RECOMMENDED BY BOTH THE HOUSE
JUDICIARY COMMITTEE AND THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE.  THE HOUSE COMMITTEE CONCLUDED THAT "THE EXTENSIVE EVIDENCE
OF CRIME, CORRUPTION, AND RACKETEERING ON THE WATERFRONT OF THE PORT OF
NEW YORK, AS DISCLOSED BY THE STATE INVESTIGATIONS REPORTED TO THIS
COMMITTEE AT ITS HEARINGS AND BY THE RECENT REPORT OF THE SENATE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE (S. REP. NO. 653, SUPRA),
HAS MADE IT CLEAR BEYOND ALL QUESTION THAT THE PLAN PROPOSED BY THE
STATES OF NEW YORK AND NEW JERSEY TO ERADICATE THOSE PUBLIC EVILS IS
URGENTLY NEEDED."  H.R. REP. NO. 998, 83D CONG., 1ST SESS., P. 1.  THE
SENATE COMMITTEE REPORT STATED ITS CONCLUSION IN SIMILAR TERMS.  S.
REP. NO. 583, 83D CONG., 1ST SESS., P. 1.  THE COMPACT WAS APPROVED BY
CONGRESS IN AUGUST 1953.  ACT OF AUG. 12, 1953, 67 STAT. 541, C. 407. 

IN ADDITION TO THE COMPACT, NEW YORK ENACTED, AS PARTS II AND III OF
ITS 1953 WATERFRONT COMMISSION ACT, SUPPLEMENTARY LEGISLATION DEALING,
IN MOST PART, WITH THE ADMINISTRATION OF NEW YORK'S RESPONSIBILITY
UNDER THE COMPACT.  THIS SUPPLEMENTARY LEGISLATION ALSO CONTAINS TWO
SUBSTANTIVE PROVISIONS IN FURTHERANCE OF THE OBJECTIVES OF THE COMPACT,
BUT NOT CALLING FOR BI-STATE ENFORCEMENT, AND THUS NOT INCLUDED IN THE
COMPACT.  THESE ARE SEC. 8, WHICH IS HERE CHALLENGED, AND A PROHIBITION
AGAINST LOITERING ON THE WATERFRONT.  NEW JERSEY ENACTED A
SUPPLEMENTARY PROVISION ESSENTIALLY SIMILAR TO SEC. 8.  N.J. LAWS,
1953, C. 202, SEC. 8.  ALTHOUGH SEC. 8 DOES NOT REQUIRE ENFORCEMENT BY
THE BI-STATE WATERFRONT COMMISSION, AND WAS THEREFORE NOT FORMALLY
SUBMITTED AS PART OF THE COMPACT TO CONGRESS, IN GIVING ITS APPROVAL TO
THE COMPACT CONGRESS EXPLICITLY GAVE ITS AUTHORITY TO SUCH
SUPPLEMENTARY LEGISLATION IN ACCORD WITH THE OBJECTIVES OF THE COMPACT
BY PROVIDING IN THE CLAUSE GRANTING CONSENT "THAT THE CONSENT OF
CONGRESS IS HEREBY GIVEN TO THE COMPACT SET FORTH  ...  AND TO THE
CARRYING OUT AND EFFECTUATION OF SAID COMPACT, AND ENACTMENTS IN
FURTHERANCE THEREOF." 

IN GIVING THIS AUTHORIZATION CONGRESS WAS FULLY MINDFUL OF THE
SPECIFIC PROVISIONS OF SEC.  8.  NOT ONLY HAD SEC. 8 ALREADY BEEN
ENACTED BY THE STATES AS PART OF THE WATERFRONT COMMISSION ACTS WHEN
THE COMPACT WAS SUBMITTED TO CONGRESS, BUT, IN THE HEARINGS HELD BEFORE
THE HOUSE COMMITTEE ON THE JUDICIARY, IT WAS SPECIFICALLY URGED BY
COUNSEL FOR THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AS A GROUND
OF OPPOSITION TO CONGRESSIONAL CONSENT, THAT APPROVAL OF THE COMPACT BY
CONGRESS WOULD CARRY WITH IT SANCTION OF SEC. 8.  SEE HEARING BEFORE
SUBCOMMITTEE NO. 3 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, 83D CONG., 1ST SESS., ON H.R. 6286, H.R. 6321, H.R.
6343, AND S. 2383, P. 136.  THE GROUND OF OBJECTION TO THE SECTION
WHICH IS APPELLANT'S PRIMARY RELIANCE HERE, NAMELY, THAT IT CONFLICTS
WITH EXISTING FEDERAL LABOR POLICY, WAS URGED AS GROUND FOR REJECTING
THE COMPACT.  IT IS IN LIGHT OF THIS LEGISLATIVE HISTORY THAT THE
COMPACT WAS APPROVED, AND THAT CONGRESSIONAL CONSENT WAS GIVEN TO
"ENACTMENTS IN FURTHERANCE THEREOF." 

WITH THIS BACKGROUND IN MIND, WE COME TO CONSIDER APPELLANT'S
OBJECTION THAT SEC. 8 IS IN CONFLICT WITH AND THEREFORE PRE-EMPTED BY
THE NATIONAL LABOR RELATIONS ACT, SPECIFICALLY SECS.  1 AND 7 OF THAT
ACT, 29 U.S.C. SECS. 151, 157.  THE ARGUMENT TAKES THIS COURSE. 
PURPOSE TO PROTECT "THE EXERCISE BY WORKERS OF FULL FREEDOM OF
ASSOCIATION, SELF-ORGANIZATION, AND DESIGNATION OF REPRESENTATIVES OF
THEIR OWN CHOOSING, FOR THE PURPOSE OF NEGOTIATING THE TERMS AND
CONDITIONS OF THEIR EMPLOYMENT OR OTHER MUTUAL AID OR PROTECTION." 
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING."  UNDER SEC. 8 OF THE
WATERFRONT COMMISSION ACT, WATERFRONT EMPLOYEES DO NOT HAVE COMPLETE
FREEDOM OF CHOICE IN THE SELECTION OF THEIR REPRESENTATIVES, FOR IF
THEY CHOOSE A CONVICTED FELON THE UNION IS DISABLED FROM COLLECTING
DUES.  THUS, IT IS SAID, WITH RELIANCE ON HILL V. FLORIDA, 325 U.S.
538, THERE IS A CONFLICT AND THE STATE LEGISLATION MUST FALL. 

THIS IS NOT A SITUATION WHERE THE OPERATION OF A STATE STATUTE SO
OBVIOUSLY CONTRADICTS A FEDERAL ENACTMENT THAT IT WOULD PRECLUDE BOTH
FROM FUNCTIONING TOGETHER OR, AT LEAST, WOULD IMPEDE THE EFFECTIVENESS
OF THE FEDERAL MEASURE.  SECTION 8 OF THE WATERFRONT COMMISSION ACT
DOES NOT OPERATE TO DEPRIVE WATERFRONT EMPLOYEES OF OPPORTUNITY TO
CHOOSE BARGAINING REPRESENTATIVES.  IT DOES DISABLE THEM FROM CHOOSING
AS THEIR REPRESENTATIVES EX-FELONS WHO HAVE NEITHER BEEN PARDONED NOR
RECEIVED "GOOD CONDUCT" CERTIFICATES.  THE FACT THAT THERE IS SOME
RESTRICTION DUE TO THE OPERATION OF STATE LAW DOES NOT SETTLE THE ISSUE
OF PRE-EMPTION.  THE DOCTRINE OF PRE-EMPTION DOES NOT PRESENT A PROBLEM
IN PHYSICS BUT ONE OF ADJUSTMENT BECAUSE OF THE INTERDEPENDENCE OF
FEDERAL AND STATE INTERESTS AND OF THE INTERACTION OF FEDERAL AND STATE
POWERS.  OBVIOUSLY, THE NATIONAL LABOR RELATIONS ACT DOES NOT EXCLUDE
EVERY STATE POLICY THAT MAY IN FACT RESTRICT THE COMPLETE FREEDOM OF A
GROUP OF EMPLOYEES TO DESIGNATE "REPRESENTATIVES OF THEIR OWN
CHOOSING."  FOR EXAMPLE, BY REASON OF THE NATIONAL LABOR RELATIONS ACT
A STATE SURELY IS NOT FORBIDDEN TO CONVICT AND IMPRISON A DEFENDANT IN
A CRIMINAL CASE MERELY BECAUSE HE IS A UNION OFFICIAL AND THEREFORE
COULD NOT SERVE AS A BARGAINING REPRESENTATIVE. 

IT WOULD MISCONCEIVE THE CONSTITUTIONAL DOCTRINE OF PRE-EMPTION - OF
THE EXCLUSION BECAUSE OF FEDERAL REGULATION OF WHAT OTHERWISE IS
CONCEDED STATE POWER - TO DECIDE THIS CASE MECHANICALLY ON AN ABSOLUTE
CONCEPT OF FREE CHOICE OF REPRESENTATIVES ON THE PART OF EMPLOYEES,
HEEDLESS OF THE LIGHT THAT CONGRESS HAS SHED FOR OUR GUIDANCE.  THE
RELEVANT QUESTION IS WHETHER WE MAY FAIRLY INFER A CONGRESSIONAL
PURPOSE INCOMPATIBLE WITH THE VERY NARROW AND HISTORICALLY EXPLAINED
RESTRICTIONS UPON THE CHOICE OF A BARGAINING REPRESENTATIVE EMBODIED IN
SEC. 8 OF THE NEW YORK WATERFRONT COMMISSION ACT.  WOULD CONGRESS, WITH
A LIVELY REGARD FOR ITS OWN FEDERAL LABOR POLICY, FIND IN THIS STATE
ENACTMENT A TRUE, REAL FRUSTRATION, HOWEVER DIALECTICALLY PLAUSIBLE, OF
THAT POLICY? 

IN LIGHT OF THE PURPOSE, SCOPE AND BACKGROUND OF THIS NEW YORK
LEGISLATION AND CONGRESS' RELATION TO IT, SUCH AN INFERENCE OF
INCOMPATIBILITY HAS NO FOUNDATION.  IN THIS CASE WE NEED NOT
IMAGINATIVELY SUMMON THE LIKELY REACTION OF CONGRESS TO THE STATE
LEGISLATION, AS A BASIS FOR ASCERTAINING WHETHER DUE REGARD FOR
CONGRESSIONAL PURPOSE BARS THE STATE REGULATION.  HERE THE STATES
PRESENTED THEIR LEGISLATIVE PROGRAM TO COPE WITH AN URGENT LOCAL
PROBLEM TO THE CONGRESS, AND THE CONGRESS UNAMBIGUOUSLY SUPPORTED WHAT
IS AT THE CORE OF THIS REFORM.  HAD SEC. 8 BEEN WRITTEN INTO THE
COMPACT, EVEN THE MOST SUBTLE CASUISTRY COULD NOT CONJURE UP A CLAIM OF
PRE-EMPTION. 

HERE THE CHALLENGED STATE LEGISLATION WAS NOT IN TERMS APPROVED BY
CONGRESS, BUT WAS PART OF THE LEGISLATIVE HISTORY AND OF THE REVEALED
PURPOSE OF THE COMPACT WHICH WAS APPROVED.  FORMAL INCLUSION OF SEC. 8
IN THE COMPACT WAS NOT CALLED FOR SINCE ITS ENFORCEMENT WAS TO BE
UNILATERAL ON THE PART OF EACH STATE.  BOTH NEW YORK AND NEW JERSEY
ENACTED SEC. 8 AT THE TIME THEY ENACTED THE PROPOSED COMPACT.  SECTION
8 IS THE SAME KIND OF REGULATION AS IS CONTAINED IN THE COMPACT:  IT
EFFECTIVELY DISQUALIFIES EX-FELONS FROM WATERFRONT UNION OFFICE, JUST
AS THE COMPACT MAKES PRIOR CONVICTION OF CERTAIN FELONIES A BAR TO
WATERFRONT EMPLOYMENT, UNLESS THERE IS A FAVORABLE EXERCISE OF
EXECUTIVE DISCRETION.  THE TOTAL STATE LEGISLATIVE PROGRAM REPRESENTS A
DRASTIC EFFORT TO RID THE WATERFRONT OF CRIMINAL ELEMENTS BY GENERALLY
EXCLUDING EX-FELONS.  WHAT SENSIBLE REASON IS THERE TO SUPPOSE THAT
CONGRESS WOULD APPROVE THE MAJOR PART OF THIS LOCAL EFFORT, AS IT HAS
EXPRESSLY DONE THROUGH ITS APPROVAL OF THE COMPACT, AND DISAPPROVE ITS
APPLICATION TO UNION OFFICIALS WHO, AS HISTORY PROVED, HAD EMERGED AS A
POWERFUL AND CORRUPTING INFLUENCE ON THE WATERFRONT SECOND TO NONE? 

THIS IS NOT ALL.  AS WE HAVE SEEN, SEC. 8 WAS BROUGHT TO THE
ATTENTION OF CONGRESS AS PART OF THE LEGISLATION WHICH WOULD COME INTO
EFFECT AS AN ADJUNCT TO THE COMPACT, AND THE OBJECTION WAS RAISED AT
THAT TIME AND NOT HEEDED THAT SEC. 8 UNDULY INTERFERED WITH FEDERAL
LABOR POLICY.  FINALLY, IT IS OF GREAT SIGNIFICANCE THAT IN APPROVING
THE COMPACT CONGRESS DID NOT MERELY REMAIN SILENT REGARDING
SUPPLEMENTARY LEGISLATION BY THE STATES.  CONGRESS EXPRESSLY GAVE ITS
CONSENT TO SUCH IMPLEMENTING LEGISLATION NOT FORMALLY PART OF THE
COMPACT.  THIS PROVISION IN THE CONSENT BY CONGRESS TO A COMPACT IS SO
EXTRAORDINARY AS TO BE UNIQUE IN THE HISTORY OF COMPACTS.  OF ALL THE
INSTANCES OF CONGRESSIONAL APPROVAL OF STATE COMPACTS - THE PROCESS
BEGAN IN 1791, ACT OF FEB. 4, 1791, 1 STAT. 189, WITH MORE THAN ONE
HUNDRED COMPACTS APPROVED SINCE - WE HAVE FOUND NO OTHER IN WHICH
CONGRESS EXPRESSLY GAVE ITS CONSENT TO IMPLEMENTING LEGISLATION.  IT IS
INSTRUCTIVE THAT THIS UNIQUE PROVISION HAS OCCURRED IN CONNECTION WITH
APPROVAL OF A COMPACT DEALING WITH THE PREVENTION OF CRIME WHERE,
BECAUSE OF THE PECULIARLY LOCAL NATURE OF THE PROBLEM, THE INFERENCE IS
STRONGEST THAT LOCAL POLICIES ARE NOT TO BE THWARTED. 

THE SUM OF THESE CONSIDERATIONS IS THAT IT WOULD OFFEND REASON TO
ATTRIBUTE TO CONGRESS A PURPOSE TO PRE-EMPT THE STATE REGULATION
CONTAINED IN SEC. 8.  THE DECISION IN HILL V. FLORIDA, 325 U.S. 538, IN
NO WISE OBSTRUCTS THIS CONCLUSION.  AN ELEMENT MOST PERSUASIVE HERE,
CONGRESSIONAL APPROVAL OF THE HEART OF THE STATE LEGISLATIVE PROGRAM
EXPLICITLY BROUGHT TO ITS ATTENTION, WAS NOT PRESENT IN THAT CASE.  NOR
WAS IT TRUE OF HILL V. FLORIDA, AS IT IS HERE, THAT THE CHALLENGED
STATE LEGISLATION WAS PART OF A PROGRAM, FULLY CANVASSED BY CONGRESS
THROUGH ITS OWN INVESTIGATIONS, TO VINDICATE A LEGITIMATE AND
COMPELLING STATE INTEREST, NAMELY, THE INTEREST IN COMBATTING LOCAL
CRIME INFESTING A PARTICULAR INDUSTRY. 

APPELLANT ALSO ASKS US TO FIND EVIDENCE OF FEDERAL PRE-EMPTION OF
SEC. 8 OF THE WATERFRONT COMMISSION ACT IN THE ENACTMENT BY CONGRESS OF
THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT.
519.  TITLE V OF THE 1959 ACT IMPOSES RESTRICTIONS UPON UNION OFFICERS,
AND DEFINES QUALIFICATIONS FOR SUCH OFFICERS.  SPECIFICALLY, SEC.
504(A) PROVIDES THAT "NO PERSON  ...  WHO HAS BEEN CONVICTED OF, OR
SERVED ANY PART OF A PRISON TERM RESULTING FROM HIS CONVICTION OF A
GROUP OF SERIOUS FELONIES  ...  SHALL SERVE - (1) AS AN OFFICER,
DIRECTOR, TRUSTEE, MEMBER OF ANY EXECUTIVE BOARD OR SIMILAR GOVERNING
BODY, BUSINESS AGENT, MANAGER, ORGANIZER, OR OTHER EMPLOYEE (OTHER THAN
AS AN EMPLOYEE PERFORMING EXCLUSIVELY CLERICAL OR CUSTODIAL DUTIES) OF
ANY LABOR ORGANIZATION  ... FOR FIVE YEARS AFTER  ...  SUCH CONVICTION
OR AFTER THE END OF SUCH IMPRISONMENT, UNLESS PRIOR TO THE END OF SUCH
FIVE-YEAR PERIOD, IN THE CASE OF A PERSON SO CONVICTED OR IMPRISONED,
(A) HIS CITIZENSHIP RIGHTS, HAVING BEEN REVOKED AS A RESULT OF SUCH
CONVICTION, HAVE BEEN FULLY RESTORED, OR (B) THE BOARD OF PAROLE OF THE
UNITED STATES DEPARTMENT OF JUSTICE DETERMINES THAT SUCH PERSON'S
SERVICE IN ANY CAPACITY REFERRED TO IN CLAUSE (1) ...  WOULD NOT BE
CONTRARY TO THE PURPOSES OF THIS ACT." 

THE FACT THAT CONGRESS ITSELF HAS THUS IMPOSED THE SAME TYPE OF
RESTRICTION UPON EMPLOYEES' FREEDOM TO CHOOSE BARGAINING
REPRESENTATIVES AS NEW YORK SEEKS TO IMPOSE THROUGH SEC. 8, NAMELY,
DISQUALIFICATION OF EX-FELONS FOR UNION OFFICE, IS SURELY EVIDENCE THAT
CONGRESS DOES NOT VIEW SUCH A RESTRICTION AS INCOMPATIBLE WITH ITS
LABOR POLICIES.  APPELLANT, HOWEVER, ARGUES THAT ANY STATE DISABLEMENT
FROM HOLDING UNION OFFICE ON ACCOUNT OF A PRIOR FELONY CONVICTION, SUCH
AS SEC. 8, WHICH HAS TERMS AT VARIANCE WITH SEC. 504(A), IS IMPLIEDLY
BARRED BY IT.  JUST THE OPPOSITE CONCLUSION IS INDICATED BY THE 1959
ACT, WHICH REFLECTS CONGRESSIONAL AWARENESS OF THE PROBLEMS OF PRE
EMPTION IN THE AREA OF LABOR LEGISLATION, AND WHICH DID NOT LEAVE THE
SOLUTION OF QUESTIONS OF PRE-EMPTION TO INFERENCE.  WHEN CONGRESS MEANT
PRE-EMPTION TO FLOW FROM THE 1959 ACT IT EXPRESSLY SO PROVIDED. 
PROVISIONS EXCLUDING THE OPERATION OF STATE LAW, SUPPLEMENTING
PROVISIONS FOR NEW FEDERAL REGULATION.  NO SUCH PRE-EMPTION PROVISION
WAS PROVIDED IN CONNECTION WITH SEC. 504(A).  THAT ALONE IS SUFFICIENT
REASON FOR NOT DECIDING THAT SEC. 504(A), PRE-EMPTS SEC.  8 OF THE
WATERFRONT COMMISSION ACT.  IN ADDITION, TWO SECTIONS OF THE 1959 ACT,
BOTH RELEVANT TO THIS CASE, AFFIRMATIVELY PRESERVE THE OPERATION OF
STATE LAWS.  THAT SEC. 504(A) WAS NOT TO RESTRICT STATE CRIMINAL LAW
ENFORCEMENT REGARDING THE FELONIES THERE ENUMERATED AS FEDERAL BARS TO
UNION OFFICE IS PROVIDED BY SEC. 604 OF THE 1959 ACT:  "NOTHING IN THIS
ACT SHALL BE CONSTRUED TO IMPAIR OR DIMINISH THE AUTHORITY OF ANY STATE
TO ENACT AND ENFORCE GENERAL CRIMINAL LAWS WITH RESPECT TO THE SAME
GROUP OF SERIOUS FELONIES, WITH THE EXCEPTION OF EXCLUSIVELY FEDERAL
VIOLATIONS, WHICH ARE LISTED IN SEC. 504(A)."  AND TO MAKE THE MATTER
CONCLUSIVE, SEC. 603(A) IS AN EXPRESS DISCLAIMER OF PRE-EMPTION OF
STATE LAWS REGULATING THE RESPONSIBILITIES OF UNION OFFICIALS, EXCEPT
WHERE SUCH PRE-EMPTION IS EXPRESSLY PROVIDED IN THE 1959 ACT.  SECTION
603(A) PROVIDES: "EXCEPT AS EXPLICITLY PROVIDED TO THE CONTRARY,
NOTHING IN THIS ACT SHALL REDUCE OR LIMIT THE RESPONSIBILITIES OF ANY
LABOR ORGANIZATION OR ANY OFFICER, AGENT, SHOP STEWARD, OR OTHER
REPRESENTATIVE OF A LABOR ORGANIZATION  ...  UNDER THE LAWS OF ANY
STATE ...  ."  IN VIEW OF THIS EXPLICIT AND ELABORATE TREATMENT OF PRE
EMPTION IN THE 1959 ACT, NO INFERENCE CAN POSSIBLY ARISE THAT SEC. 8 IS
IMPLIEDLY PRE-EMPTED BY SEC. 504(A). 

APPELLANT'S ARGUMENT THAT SEC. 8 OF THE WATERFRONT COMMISSION ACT IS
CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DEPENDS,
AS IT MUST, UPON THE PROPOSITION THAT BARRING CONVICTED FELONS FROM
WATERFRONT UNION OFFICE, UNLESS THEY ARE PARDONED, OR RECEIVE A "GOOD
CONDUCT" CERTIFICATE, IS NOT, IN THE CONTEXT OF THE PARTICULAR
CIRCUMSTANCES WHICH GAVE RISE TO THE LEGISLATION, A REASONABLE MEANS
FOR ACHIEVING A LEGITIMATE STATE AIM, NAMELY, ELIMINATING CORRUPTION ON
THE WATERFRONT. 

IN DISQUALIFYING ALL CONVICTED FELONS FROM UNION OFFICE UNLESS
EXECUTIVE DISCRETION IS EXERCISED IN THEIR FAVOR, SEC. 8 MAY WELL BE
DEEMED DRASTIC LEGISLATION.  BUT IN THE VIEW OF CONGRESS AND THE TWO
STATES INVOLVED THE SITUATION ON THE NEW YORK WATERFRONT REGARDING THE
PRESENCE AND INFLUENCE OF EX-CONVICTS CALLED FOR DRASTIC ACTION. 
LEGISLATIVE INVESTIGATION HAD ESTABLISHED THAT THE PRESENCE OF EX
CONVICTS ON THE WATERFRONT WAS NOT A MINOR EPISODE BUT CONSTITUTED A
PRINCIPAL CORRUPTING INFLUENCE.  THE SENATE SUBCOMMITTEE WHICH
INVESTIGATED FOR CONGRESS CONDITIONS ON THE NEW YORK WATERFRONT FOUND
THAT "CRIMINALS WHOSE LONG RECORDS BELIE ANY SUGGESTION THAT THEY CAN
BE REFORMED HAVE BEEN MONOPOLIZING CONTROLLING POSITIONS IN THE
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION AND IN LOCAL UNIONS.  UNDER
THEIR REGIMES GAMBLING, THE NARCOTICS TRAFFIC, LOANSHARKING,
SHORTGANGING, PAYROLL 'PHANTOMS,' THE 'SHAKEDOWN' IN ALL ITS FORMS -
AND THE BRUTAL ULTIMATE OF MURDER - HAVE FLOURISHED, OFTEN VIRTUALLY
UNCHECKED."  S. REP. NO. 653, 83D CONG., 1ST SESS. (1953), P. 7. 

IN LIGHT OF THESE FINDINGS, AND OTHER EVIDENCE TO THE SAME EFFECT,
(FN3) THE CONGRESS APPROVED AS APPROPRIATE IF INDEED NOT NECESSARY A
COMPACT, ONE OF THE CENTRAL DEVICES OF WHICH WAS TO BAR CONVICTED
FELONS FROM WATERFRONT EMPLOYMENT, AND FROM ACTING AS STEVEDORES
EMPLOYING OTHERS, EITHER ABSOLUTELY, OR IN THE WATERFRONT COMMISSION'S
DISCRETION.  NO POSITIONS ON THE WATERFRONT WERE MORE CONDUCIVE TO ITS
CRIMINAL PAST THAN THOSE OF UNION OFFICIALS, AND NONE, IF LEFT
UNREGULATED, WERE FELT TO BE MORE ABLE TO IMPEDE THE WATERFRONT'S
REFORM.  DULY MINDFUL AS WE ARE OF THE PROMISING RECORD OF
REHABILITATION BY EX-FELONS, AND OF THE EMPHASIS ON REHABILITATION BY
MODERN PENOLOGICAL EFFORTS, IT IS NOT FOR THIS COURT TO SUBSTITUTE ITS
JUDGMENT FOR THAT OF CONGRESS AND THE LEGISLATURES OF NEW YORK AND NEW
JERSEY REGARDING THE SOCIAL SURGERY REQUIRED BY A SITUATION AS
GANGRENOUS AS EXPOSURE OF THE NEW YORK WATERFRONT HAD REVEALED. 

BARRING CONVICTED FELONS FROM CERTAIN EMPLOYMENTS IS A FAMILIAR
LEGISLATIVE DEVICE TO INSURE AGAINST CORRUPTION IN SPECIFIED, VITAL
AREAS.  FEDERAL LAW HAS FREQUENTLY AND OF OLD UTILIZED THIS TYPE OF
DISQUALIFICATION.  CONVICTED FELONS ARE NOT ENTITLED TO BE ENLISTED OR
MUSTERED INTO THE UNITED STATES ARMY, OR INTO THE AIR FORCE, BUT "THE
SECRETARY  ...  MAY AUTHORIZE EXCEPTIONS, IN MERITORIOUS CASES."  10
U.S.C. SECS. 3253, 8253.  THIS STATUTE DATES FROM 1833.  A CITIZEN IS
NOT COMPETENT TO SERVE ON FEDERAL GRAND OR PETIT JURIES IF HE HAS BEEN
"CONVICTED IN A STATE OR FEDERAL COURT OF RECORD OF A CRIME PUNISHABLE
BY IMPRISONMENT FOR MORE THAN ONE YEAR AND HIS CIVIL RIGHTS HAVE NOT
BEEN RESTORED BY PARDON OR AMNESTY."  28 U.S.C. SEC. 1861.  IN
ADDITION, A LARGE GROUP OF FEDERAL STATUTES DISQUALIFY PERSONS "FROM
HOLDING ANY OFFICE OF HONOR, TRUST, OR PROFIT UNDER THE UNITED STATES"
BECAUSE OF THEIR CONVICTION OF CERTAIN CRIMES, GENERALLY INVOLVING
OFFICIAL MISCONDUCT.  18 U.S.C. SECS. 202, 205, 206, 207, 216, 281,
282, 592, 1901, 2071, 2381.  FOR OTHER EXAMPLES IN THE FEDERAL STATUTES
SEE 18 U.S.C. SEC. 2387; 5 U.S.C. SEC. 2282; 8 U.S.C. SEC. 1481.  STATE
PROVISIONS DISQUALIFYING CONVICTED FELONS FROM CERTAIN EMPLOYMENTS
IMPORTANT TO THE PUBLIC INTEREST ALSO HAVE A LONG HISTORY.  SEE, E.G.,
HAWKER V. NEW YORK, 170 U.S. 189.  AND IT IS TO BE NOTED THAT IN SEC.
504(A) OF THE 1959 FEDERAL LABOR ACT, QUOTED EARLIER IN THIS OPINION,
CONGRESS ADOPTED THIS SAME SOLUTION IN ITS ATTEMPT TO RID ALL UNIONS OF
CRIMINAL ELEMENTS.  JUST AS NEW YORK AND NEW JERSEY HAVE DONE, THE 1959
FEDERAL ACT MAKES A PRIOR FELONY CONVICTION A BAR TO UNION OFFICE
UNLESS THERE IS A FAVORABLE EXERCISE OF EXECUTIVE DISCRETION.  IN THE
FACE OF THIS WIDE UTILIZATION OF DISQUALIFICATION OF CONVICTED FELONS
FOR CERTAIN EMPLOYMENTS CLOSELY TOUCHING THE PUBLIC INTEREST, REMITTING
THEM TO EXECUTIVE DISCRETION TO HAVE THE BAR REMOVED, WE CANNOT SAY
THAT IT WAS NOT OPEN TO NEW YORK TO CLEAN UP ITS WATERFRONT IN THE WAY
IT HAS.  NEW YORK WAS NOT GUESSING OR INDULGING IN AIRY ASSUMPTIONS
THAT CONVICTED FELONS CONSTITUTED A DELETERIOUS INFLUENCE ON THE
WATERFRONT.  IT WAS ACTING ON IMPRESSIVE IF MORTIFYING EVIDENCE THAT
THE PRESENCE ON THE WATERFRONT OF EX-CONVICTS WAS AN IMPORTANT
CONTRIBUTING FACTOR TO THE CORRUPT WATERFRONT SITUATION. 

FINALLY, SEC. 8 OF THE WATERFRONT COMMISSION ACT IS NEITHER A BILL OF
ATTAINDER NOR AN EX POST FACTO LAW.  THE DISTINGUISHING FEATURE OF A
BILL OF ATTAINDER IS THE SUBSTITUTION OF A LEGISLATIVE FOR A JUDICIAL
DETERMINATION OF GUILT.  SEE UNITED STATES V. LOVETT, 328 U.S. 303. 
CLEARLY, SEC. 8 EMBODIES NO FURTHER IMPLICATIONS OF APPELLANT'S GUILT
THAN ARE CONTAINED IN HIS 1920 JUDICIAL CONVICTION; AND SO IT
MANIFESTLY IS NOT A BILL OF ATTAINDER.  THE MARK OF AN EX POST FACTO
LAW IS THE IMPOSITION OF WHAT CAN FAIRLY BE DESIGNATED PUNISHMENT FOR
PAST ACTS.  THE QUESTION IN EACH CASE WHERE UNPLEASANT CONSEQUENCES ARE
BROUGHT TO BEAR UPON AN INDIVIDUAL FOR PRIOR CONDUCT, IS WHETHER THE
LEGISLATIVE AIM WAS TO PUNISH THAT INDIVIDUAL FOR PAST ACTIVITY, OR
WHETHER THE RESTRICTION OF THE INDIVIDUAL COMES ABOUT AS A RELEVANT
INCIDENT TO A REGULATION OF A PRESENT SITUATION, SUCH AS THE PROPER
QUALIFICATIONS FOR A PROFESSION.  SEE HAWKER V. NEW YORK, 170 U.S.
189.  NO DOUBT IS JUSTIFIED REGARDING THE LEGISLATIVE PURPOSE OF SEC.
8.  THE PROOF IS OVERWHELMING THAT NEW YORK SOUGHT NOT TO PUNISH EX
FELONS, BUT TO DEVISE WHAT WAS FELT TO BE A MUCH-NEEDED SCHEME OF
REGULATION OF THE WATERFRONT, AND FOR THE EFFECTUATION OF THAT SCHEME
IT BECAME IMPORTANT WHETHER INDIVIDUALS HAD PREVIOUSLY BEEN CONVICTED
OF A FELONY.  AFFIRMED. 

FN1  APPELLEE'S CLAIM THAT THE CAUSE IS MOOT, SINCE, AFTER THE
COMMENCEMENT OF THIS ACTION, LOCAL 1346 WAS DISBANDED AND ALL EMPLOYEES
UNDER ITS JURISDICTION CAME UNDER THE JURISDICTION OF A NEW LOCAL,
LOCAL 1, WITH OFFICES IN NEW YORK COUNTY, MUST FAIL.  ON THE BASIS OF
WHAT HAS BEEN SUBMITTED TO US, THE NEW LOCAL IS, IN PART, SIMPLY THE
OLD IN A NEW DRESS. 

FN2  SECTION 205(C) PROVIDES: 

"  ...  NO PERSON SHALL BE REQUIRED BY REASON OF ANY LAW OF ANY STATE
TO FURNISH TO ANY OFFICER OR AGENCY OF SUCH STATE ANY INFORMATION
INCLUDED IN A REPORT FILED BY SUCH PERSON WITH THE SECRETARY PURSUANT
TO THE PROVISIONS OF THIS TITLE, IF A COPY OF SUCH REPORT, OR OF THE
PORTION THEREOF CONTAINING SUCH INFORMATION, IS FURNISHED TO SUCH
OFFICER OR AGENCY  ...  ." 


"NO LABOR ORGANIZATION SHALL BE REQUIRED BY LAW TO CONDUCT ELECTIONS
OF OFFICERS WITH GREATER FREQUENCY OR IN A DIFFERENT FORM OR MANNER
THAN IS REQUIRED BY ITS OWN CONSTITUTION OR BYLAWS, EXCEPT AS OTHERWISE
PROVIDED BY THIS TITLE  ...  .   THE REMEDY PROVIDED BY THIS TITLE FOR
CHALLENGING AN ELECTION ALREADY CONDUCTED SHALL BE EXCLUSIVE." 

FN3  SEE, E.G., HEARINGS BEFORE SUBCOMMITTEE NO. 3 OF THE COMMITTEE
ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, ON H.R. 6286, H.R. 6321,
H.R. 6343, AND S. 2383, 83D CONG., 1ST SESS.  (1953), PP. 88, 97. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN IS OF OPINION THAT CONGRESS HAS DEMONSTRATED ITS
INTENT THAT SEC. 8 OF THE NEW YORK WATERFRONT COMMISSION ACT SHOULD
STAND DESPITE THE PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT, AND
THAT THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959
EXPLICITLY PROVIDES THAT IT SHALL NOT DISPLACE SUCH LEGISLATION OF THE
STATES.  HE BELIEVES THAT NEW YORK'S DISQUALIFICATION OF EX-FELONS FROM
WATERFRONT UNION OFFICE, ON ALL THE CIRCUMSTANCES, AND AS APPLIED TO
THIS SPECIFIC AREA, IS A REASONABLE MEANS FOR ACHIEVING A LEGITIMATE
STATE AIM, AND DOES NOT DENY DUE PROCESS OR OTHERWISE VIOLATE THE
FEDERAL CONSTITUTION.  ACCORDINGLY, HE AGREES THAT THE JUDGMENT SHOULD
BE AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

I COULD MORE NEARLY COMPREHEND THE THRUST OF THE COURT'S RULING IN
THIS CASE IF IT OVERRULED HILL V. FLORIDA, 325 U.S. 538, AND ADOPTED
THE DISSENTING OPINION IN THAT CASE WRITTEN BY MY BROTHER FRANKFURTER. 
BUT TO SUSTAIN THIS NEW YORK LAW WHEN WE STRUCK DOWN THE FLORIDA LAW IN
THE HILL CASE IS TO MAKE CONSTITUTIONAL ADJUDICATIONS TURN ON WHIMSICAL
CIRCUMSTANCES. 

THE NEW YORK LAW MAKES A PERSON INELIGIBLE TO SOLICIT FUNDS ON BEHALF
OF A LABOR UNION IF HE HAS BEEN CONVICTED OF A FELONY.  THE FLORIDA LAW
MADE IT UNLAWFUL FOR ONE TO BE A BUSINESS AGENT FOR A UNION IF HE HAD
BEEN CONVICTED OF A FELONY.  325 U.S., AT 540.  IN EACH THE QUESTION IS
WHETHER SUCH A STATE RESTRICTION IS COMPATIBLE WITH THE FEDERAL
GUARANTEE CONTAINED IN SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT (FN1)
WHICH READS AS FOLLOWS: 

"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 CONCERTED
ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL
AID OR PROTECTION ...  ." 

THE ANSWER WE GAVE IN HILL V. FLORIDA, SUPRA, AT 541, WAS AS
FOLLOWS: 

"IT IS APPARENT THAT THE FLORIDA STATUTE HAS BEEN SO CONSTRUED AND
APPLIED THAT THE UNION AND ITS SELECTED REPRESENTATIVE ARE PROHIBITED
FROM FUNCTIONING AS COLLECTIVE BARGAINING AGENTS, OR IN ANY OTHER
CAPACITY, EXCEPT UPON CONDITIONS FIXED BY FLORIDA.  THE DECLARED
PURPOSE OF THE WAGNER ACT, AS SHOWN IN ITS FIRST SECTION, IS TO
ENCOURAGE COLLECTIVE BARGAINING, AND TO PROTECT THE 'FULL FREEDOM' OF
WORKERS IN THE SELECTION OF BARGAINING REPRESENTATIVES OF THEIR OWN
CHOICE.  TO THIS END CONGRESS MADE IT ILLEGAL FOR AN EMPLOYER TO
INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN SELECTING THEIR
REPRESENTATIVES.  CONGRESS ATTACHED NO CONDITIONS WHATSOEVER TO THEIR
FREEDOM OF CHOICE IN THIS RESPECT.  THEIR OWN BEST JUDGMENT, NOT THAT
OF SOMEONE ELSE, WAS TO BE THEIR GUIDE.  'FULL FREEDOM' TO CHOOSE AN
AGENT MEANS FREEDOM TO PASS UPON THAT AGENT'S QUALIFICATIONS. 

"SECTION 4 OF THE FLORIDA ACT CIRCUMSCRIBES THE 'FULL FREEDOM' OF
CHOICE WHICH CONGRESS SAID EMPLOYEES SHOULD POSSESS.  IT DOES THIS BY
REQUIRING A 'BUSINESS AGENT' TO PROVE TO THE SATISFACTION OF A FLORIDA
BOARD THAT HE MEASURES UP TO STANDARDS SET BY THE STATE OF FLORIDA AS
ONE WHO, AMONG OTHER THINGS, PERFORMS THE EXACT FUNCTION OF A
COLLECTIVE BARGAINING REPRESENTATIVE.  TO THE EXTENT THAT SEC. 4 LIMITS
A UNION'S CHOICE OF SUCH AN 'AGENT' OR BARGAINING REPRESENTATIVE, IT
SUBSTITUTES FLORIDA'S JUDGMENT FOR THE WORKERS' JUDGMENT." 

NOTHING HAS BEEN DONE TO CHANGE, IN RELEVANT PART, THE LANGUAGE OF
SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT SINCE HILL V. FLORIDA,
SUPRA.  IF SEC. 7 FORECLOSED FLORIDA FROM PRESCRIBING STANDARDS FOR
UNION OFFICIALS, I FAIL TO SEE WHY IT DOES NOT FORECLOSE NEW YORK. 
MUCH IS MADE OF THE FACT THAT CONGRESS, WHEN IT APPROVED THE WATERFRONT
COMMISSION COMPACT (FN2) BETWEEN NEW YORK AND NEW JERSEY, 67 STAT. 541,
KNEW OF THE RESTRICTIONS CONTAINED IN SEC. 8 OF THE NEW YORK WATERFRONT
COMMISSION ACT (FN3) NOW IN LITIGATION.  BUT THAT IS AN ARGUMENT THAT
COMES TO NAUGHT WHEN ART. XV, SEC. 1 OF THE COMPACT IS READ: 

"THIS COMPACT IS NOT DESIGNED AND SHALL NOT BE CONSTRUED TO LIMIT IN
ANY WAY ANY RIGHTS GRANTED OR DERIVED FROM ANY OTHER STATUTE OR ANY
RULE OF LAW FOR EMPLOYEES TO ORGANIZE IN LABOR ORGANIZATIONS, TO
BARGAIN COLLECTIVELY AND TO ACT IN ANY OTHER WAY INDIVIDUALLY,
COLLECTIVELY, AND THROUGH LABOR ORGANIZATIONS OR OTHER REPRESENTATIVES
OF THEIR OWN CHOOSING.  WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, NOTHING CONTAINED IN THIS COMPACT SHALL BE CONSTRUED TO
LIMIT IN ANY WAY THE RIGHT OF EMPLOYEES TO STRIKE." 

YET HOW CAN EMPLOYEES MAINTAIN THEIR RIGHT TO ACT THROUGH
"REPRESENTATIVES OF THEIR OWN CHOOSING" IF NEW YORK CAN TELL THEM WHOM
THEY MAY NOT CHOOSE? 

MOREOVER THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959,
73 STAT. 519, 29 U.S.C.  (1958 ED., SUPP. I) SEC. 401, SHOWS
UNMISTAKABLY THAT CONGRESS HAS KEPT UNTO ITSELF CONTROL OVER THE
QUALIFICATIONS OF OFFICERS OF LABOR UNIONS.  SECTION 2(A) OF THAT ACT
PROVIDES IN PART: 

"THE CONGRESS FINDS THAT, IN THE PUBLIC INTEREST, IT CONTINUES TO BE
THE RESPONSIBILITY OF THE FEDERAL GOVERNMENT TO PROTECT EMPLOYEES'
RIGHTS TO ORGANIZE, CHOOSE THEIR OWN REPRESENTATIVES, BARGAIN
COLLECTIVELY, AND OTHERWISE ENGAGE IN CONCERTED ACTIVITIES FOR THEIR
MUTUAL AID OR PROTECTION  ...  ." 

CONGRESS BY SEC. 504 OF THAT ACT HAS BARRED ENUMERATED FELONS FROM
HOLDING UNION OFFICE "DURING OR FOR FIVE YEARS AFTER" THE CONVICTION OR
END OF IMPRISONMENT.  THAT FEDERAL, NOT STATE, QUALIFICATIONS FOR UNION
OFFICES NOW OBTAIN IS MADE PLAIN BY SEC. 604 OF THAT ACT.  (FN4)  IT
PROVIDES AS FOLLOWS: 

"NOTHING IN THIS ACT SHALL BE CONSTRUED TO IMPAIR OR DIMINISH THE
AUTHORITY OF ANY STATE TO ENACT AND ENFORCE GENERAL CRIMINAL LAWS WITH
RESPECT TO ROBBERY, BRIBERY, EXTORTION, EMBEZZLEMENT, GRAND LARCENY,
BURGLARY, ARSON, VIOLATION OF NARCOTICS LAWS, MURDER, RAPE, ASSAULT
WITH INTENT TO KILL, OR ASSAULT WHICH INFLICTS GRIEVOUS BODILY INJURY,
OR CONSPIRACY TO COMMIT ANY OF SUCH CRIMES." 

I DO NOT KNOW HOW CONGRESS COULD MAKE CLEARER ITS TWOFOLD PURPOSE:
FIRST, THAT FEDERAL STANDARDS ARE TO DETERMINE THE QUALIFICATIONS FOR
HOLDING UNION OFFICES; AND SECOND, THAT ENFORCEMENT OF "GENERAL
CRIMINAL LAWS" BY THE STATES REMAINS UNIMPAIRED. 

WHAT CONGRESS DID IN APPROVING THE WATERFRONT COMMISSION COMPACT AND
IN ADOPTING THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959
RESPECTED THE INTEGRITY OF HILL V. FLORIDA, SUPRA.  WE SEEM NOW TO
FORSAKE IT AND IN EFFECT ADOPT THE DISSENT IN HILL V. FLORIDA.  THAT I
CANNOT DO.  FOR THE FEDERAL LEGISLATIVE RECORD MAKES PLAIN TO ME BEYOND
DOUBT THAT CONGRESS HAS LEFT THE QUALIFICATIONS FOR UNION OFFICES TO BE
DETERMINED BY FEDERAL NOT STATE LAW.  THE SUPREMACY CLAUSE OF ARTICLE
VI OF THE CONSTITUTION CALLS FOR A REVERSAL OF THE JUDGMENT OF THE NEW
YORK COURT OF APPEALS.  HENCE I DO NOT REACH THE OTHER QUESTIONS
PRESENTED. 

FN1  SECTION 1 OF THE ACT DECLARED AS ITS PURPOSE ENCOURAGING
COLLECTIVE BARGAINING AND PROTECTING "THE EXERCISE BY WORKERS OF FULL
FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND DESIGNATION OF
REPRESENTATIVES OF THEIR OWN CHOOSING." 

FN2  THE WATERFRONT COMMISSION COMPACT, WHICH CONGRESS APPROVED, SET
UP QUALIFICATIONS AND LICENSING REQUIREMENTS FOR CERTAIN TYPES OF
WATERFRONT EMPLOYMENT.  IT ALSO CALLED FOR THE CREATION OF EMPLOYMENT
INFORMATION CENTERS, TO BE ADMINISTERED BY THE BI-STATE REGULATORY
AGENCY, THE PURPOSE OF WHICH WAS TO ELIMINATE EXTORTIONATE HIRING
PRACTICES AND REGULARIZE EMPLOYMENT BY ELIMINATING CASUAL LABORERS FROM
THE REGISTRATION ROLLS.  IT DID NOT PURPORT TO REGULATE OR SET UP
QUALIFICATIONS FOR LABOR UNIONS OR LABOR REPRESENTATIVES. 

FN3  SECTION 8 OF PART III OF THE WATERFRONT COMMISSION ACT OF THE
STATE OF NEW YORK, NEW YORK LAWS 1953, C. 882, PROVIDES AS FOLLOWS: 

"NO PERSON SHALL SOLICIT, COLLECT OR RECEIVE ANY DUES, ASSESSMENTS,
LEVIES, FINES OR CONTRIBUTIONS WITHIN THE STATE FROM EMPLOYEES
REGISTERED OR LICENSED PURSUANT TO THE PROVISIONS OF THIS ACT FOR OR ON
BEHALF OF ANY LABOR ORGANIZATION REPRESENTING ANY SUCH EMPLOYEES, IF
ANY OFFICER OR AGENT OF SUCH ORGANIZATION HAS BEEN CONVICTED BY A COURT
OF THE UNITED STATES, OR ANY STATE OR TERRITORY THEREOF, OF A FELONY
UNLESS HE HAS BEEN SUBSEQUENTLY PARDONED THEREFOR BY THE GOVERNOR OR
OTHER APPROPRIATE AUTHORITY OF THE STATE OR JURISDICTION IN WHICH SUCH
CONVICTION WAS HAD OR HAS RECEIVED A CERTIFICATE OF GOOD CONDUCT FROM
THE BOARD OF PAROLE PURSUANT TO THE PROVISIONS OF THE EXECUTIVE LAW TO
REMOVE THE DISABILITY. 

"AS USED IN THIS SECTION, THE TERM 'LABOR ORGANIZATION' SHALL MEAN
AND INCLUDE ANY ORGANIZATION WHICH EXISTS AND IS CONSTITUTED FOR THE
PURPOSE IN WHOLE OR IN PART OF COLLECTIVE BARGAINING, OR OF DEALING
WITH EMPLOYERS CONCERNING GRIEVANCES, TERMS AND CONDITIONS OF
EMPLOYMENT, OR OF OTHER MUTUAL AID OR PROTECTION; BUT IT SHALL NOT
INCLUDE A FEDERATION OR CONGRESS OF LABOR ORGANIZATIONS ORGANIZED ON A
NATIONAL OR INTERNATIONAL BASIS EVEN THOUGH ONE OF ITS CONSTITUENT
LABOR ORGANIZATIONS MAY REPRESENT PERSONS SO REGISTERED OR LICENSED." 

FN4  SECTION 603(A) OF THE 1959 ACT PROVIDES IN RELEVANT PART THAT
"EXCEPT AS EXPLICITLY PROVIDED TO THE CONTRARY, NOTHING IN THIS ACT
SHALL REDUCE OR LIMIT THE RESPONSIBILITIES OF ANY LABOR ORGANIZATION OR
ANY OFFICER, AGENT, SHOP STEWARD, OR OTHER REPRESENTATIVE OF A LABOR
ORGANIZATION ...  UNDER ANY OTHER FEDERAL LAW OR UNDER THE LAWS OF ANY
STATE, AND, EXCEPT AS EXPLICITLY PROVIDED TO THE CONTRARY, NOTHING IN
THIS ACT SHALL TAKE AWAY ANY RIGHT OR BAR ANY REMEDY TO WHICH MEMBERS
OF A LABOR ORGANIZATION ARE ENTITLED UNDER SUCH OTHER FEDERAL LAW OR
LAW OF ANY STATE."    THIS HAS REFERENCE TO THE FIDUCIARY
RESPONSIBILITIES CREATED BY SEC. 501 OF THE ACT AND MAKES CLEAR THAT
THESE PROVISIONS OF FEDERAL LAW DO NOT PRE-EMPT STATE LAW.  AS STATED
IN S. REP. NO. 187, 86TH CONG., 1ST SESS., P. 19, "INDIVIDUAL UNION
MEMBERS WILL THEREFORE HAVE A CHOICE BETWEEN SUING IN THE STATE COURTS
UNDER THE COMMON LAW OR INVOKING THE PROVISIONS OF THE FEDERAL
STATUTE." 

THERE IS NO LIKE PROVISION WHICH SAVES SEC. 504 (THE SECTION THAT
BARS FELONS FROM HOLDING UNION OFFICE) FROM PRE-EMPTING STATE LAW. 
..END :





















FEDERAL TRADE COMMISSION V. HENRY BROCH & CO. 363 U.S. 166 


NO. 61.  ARGUED JANUARY 14, 18, 1960.  - DECIDED JUNE 6, 1960.  - 261
F.2D 725, REVERSED. 


IN ORDER TO MEET THE BID OF A FAVORED BUYER, A SELLER'S BROKER REDUCED
HIS BROKERAGE COMMISSION FROM 5% TO 3%, WHICH WAS REFLECTED IN THE
SELLER'S REDUCTION OF THE PRICE OF APPLE CONCENTRATE FROM $1.30 PER
GALLON TO $1.25 PER GALLON; THE SALE WAS CONSUMMATED AT THAT PRICE; AND
SIMILAR CONCESSIONS WERE GRANTED ON SUBSEQUENT SALES TO THE SAME BUYER
BUT NOT TO ANY OTHER BUYER.  HELD: THE SELLER'S BROKER VIOLATED SEC.
2(C) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT, WHICH
MAKES IT UNLAWFUL FOR "ANY PERSON" TO MAKE ANY ALLOWANCE IN LIEU OF
"BROKERAGE" TO THE "OTHER PARTY TO SUCH TRANSACTION."  PP. 167-177. 

(A)  A SELLER'S BROKER IS INCLUDED WITHIN THE TERM "ANY PERSON" AS
USED IN SEC. 2(C).  P. 170. 

(B)  SUCH AN ALLOWANCE WAS NOT MADE LAWFUL BY THE PROVISO OF SEC.
2(A) WHICH EXEMPTS FROM THE PROHIBITIONS OF THAT SECTION PRICE
DIFFERENTIALS BASED ON SAVINGS IN SELLING COSTS RESULTING FROM
DIFFERING METHODS OF DISTRIBUTION.  PP. 170-174. 

(C)  THE FACT THAT THE BUYER WAS NOT AWARE THAT ITS FAVORED PRICE WAS
BASED IN PART ON A DISCRIMINATORY REDUCTION IN THE BROKER'S COMMISSION
IS IMMATERIAL.  PP. 174-175. 

(D)  SECTION 2(C) APPLIES TO PAYMENTS OR ALLOWANCES BY A SELLER'S
BROKER TO A BUYER, WHETHER MADE DIRECTLY TO THE BUYER OR INDIRECTLY
THROUGH THE SELLER.  PP. 175-176. 

FEDERAL TRADE COMMISSION V. HENRY BROCH & CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ACT, (FN1) MAKES IT UNLAWFUL FOR "ANY PERSON" TO MAKE AN ALLOWANCE IN
LIEU OF "BROKERAGE" TO THE "OTHER PARTY TO SUCH TRANSACTION."  THE
QUESTION IS WHETHER THAT PROHIBITION IS APPLICABLE TO THE FOLLOWING
TRANSACTIONS BY RESPONDENT. 

RESPONDENT IS A BROKER OR SALES REPRESENTATIVE FOR A NUMBER OF
PRINCIPALS WHO SELL FOOD PRODUCTS.  ONE OF THE PRINCIPALS IS CANADA
FOODS LTD., A PROCESSOR OF APPLE CONCENTRATE AND OTHER PRODUCTS. 
RESPONDENT AGREED TO ACT FOR THE CANADA FOODS FOR A 5% COMMISSION. 
OTHER BROKERS WORKING FOR THE SAME PRINCIPAL WERE PROMISED A 4%
COMMISSION.  RESPONDENT'S COMMISSION WAS HIGHER BECAUSE IT STOCKED
MERCHANDISE IN ADVANCE OF SALES.  CANADA FOODS ESTABLISHED A PRICE FOR
ITS 1954 PACK OF APPLE CONCENTRATE AT $1.30 PER GALLON IN 50-GALLON
DRUMS AND AUTHORIZED ITS BROKERS TO NEGOTIATE SALES AT THAT PRICE. 

THE J.M. SMUCKER CO., A BUYER, NEGOTIATED WITH ANOTHER BROKER,
PHIPPS, ALSO WORKING FOR CANADA FOODS, FOR APPLE CONCENTRATE.  SMUCKER
WANTED A LOWER PRICE THAN $1.30 BUT CANADA FOODS WOULD NOT AGREE. 
SMUCKER FINALLY OFFERED $1.25 FOR 500-GALLON PURCHASE.  THAT WAS TURNED
DOWN BY CANADA FOODS, ACTING THROUGH PHIPPS.  CANADA FOODS TOOK THE
POSITION THAT THE ONLY WAY THE PRICE COULD BE LOWERED WOULD BE THROUGH
REDUCTION IN BROKERAGE.  ABOUT THE SAME TIME RESPONDENT WAS NEGOTIATING
WITH SMUCKER.  CANADA FOODS TOLD RESPONDENT WHAT IT HAD TOLD PHIPPS,
THAT THE PRICE TO THE BUYER COULD BE REDUCED ONLY IF THE BROKERAGE WERE
CUT; AND IT ADDED THAT IT WOULD MAKE THE SALE AT $1.25 - THE BUYER'S
BID - IF RESPONDENT WOULD AGREE TO REDUCE ITS BROKERAGE FROM 5% TO 3%.
RESPONDENT AGREED AND THE SALE WAS CONSUMMATED AT THAT PRICE AND FOR
THAT BROKERAGE.  THE REDUCED PRICE OF $1.25 WAS THEREAFTER GRANTED
SMUCKER ON SUBSEQUENT SALES.  BUT ON SALES TO ALL OTHER CUSTOMERS,
WHETHER THROUGH RESPONDENT OR OTHER BROKERS, THE PRICE CONTINUED TO BE
$1.30 AND IN EACH INSTANCE RESPONDENT RECEIVED THE FULL 5% COMMISSION. 
ONLY ON SALES THROUGH RESPONDENT TO SMUCKER WERE THE SELLING PRICE AND
THE BROKERAGE REDUCED. 

THE CUSTOMARY BROKERAGE FEE OF 5% TO RESPONDENT WOULD HAVE BEEN
$2,036.84.  THE ACTUAL BROKERAGE OF 3% RECEIVED BY RESPONDENT WAS
$1,222.11.  THE REDUCTION OF BROKERAGE WAS $814.73 WHICH IS 50% OF THE
TOTAL PRICE REDUCTION OF $1,629.47 GRANTED BY CANADA FOODS TO SMUCKER. 

THE COMMISSION CHARGED RESPONDENT WITH VIOLATING SEC. 2(C) OF THE
ACT, AND AFTER A HEARING AND THE MAKING OF FINDINGS ENTERED A CEASE-AND
DESIST ORDER AGAINST RESPONDENT.  THE COURT OF APPEALS, WHILE NOT
QUESTIONING THE FINDINGS OF FACT OF THE COMMISSION, REVERSED.  261 F.2D
725.  THE CASE IS HERE ON WRIT OF CERTIORARI, 360 U.S. 908. 

THE ROBINSON-PATMAN ACT WAS ENACTED IN 1936 TO CURB AND PROHIBIT ALL
DEVICES BY WHICH LARGE BUYERS GAINED DISCRIMINATORY PREFERENCES OVER
SMALLER ONES BY VIRTUE OF THEIR GREATER PURCHASING POWER.  A LENGTHY
INVESTIGATION REVEALED THAT LARGE CHAIN BUYERS WERE OBTAINING
COMPETITIVE ADVANTAGES IN SEVERAL WAYS OTHER THAN DIRECT PRICE
CONCESSIONS (FN2) AND WERE THUS AVOIDING THE IMPACT OF THE CLAYTON
ACT.  (FN3)  ONE OF THE FAVORITE MEANS OF OBTAINING AN INDIRECT PRICE
CONCESSION WAS BY SETTING UP "DUMMY" BROKERS WHO WERE EMPLOYED BY THE
BUYER AND WHO, IN MANY CASES, RENDERED NO SERVICES.  THE LARGE BUYERS
DEMANDED THAT THE SELLER PAY "BROKERAGE" TO THESE FICTITIOUS BROKERS
WHO THEN TURNED IT OVER TO THEIR EMPLOYER.  THIS PRACTICE WAS ONE OF
THE CHIEF TARGETS OF SEC. 2(C) OF THE ACT.  (FN4)  BUT IT WAS NOT THE
ONLY MEANS BY WHICH THE BROKERAGE FUNCTION WAS ABUSED (FN5) AND
CONGRESS IN ITS WISDOM PHRASED SEC. 2(C) BROADLY, NOT ONLY TO COVER THE
OTHER METHODS THEN IN EXISTENCE BUT ALL OTHER MEANS BY WHICH BROKERAGE
COULD BE USED TO EFFECT PRICE DISCRIMINATION.  (FN6) 

THE PARTICULAR EVIL AT WHICH SEC. 2(C) IS AIMED CAN BE AS EASILY
PERPETRATED BY A SELLER'S BROKER AS BY THE SELLER HIMSELF.  THE SELLER
AND HIS BROKER CAN OF COURSE AGREE ON ANY BROKERAGE FEE THAT THEY
WISH.  YET WHEN THEY AGREE UPON ONE, ONLY TO REDUCE IT WHEN NECESSARY
TO MEET THE DEMANDS OF A FAVORED BUYER, THEY USE THE REDUCTION IN
BROKERAGE TO UNDERMINE THE POLICY OF SEC. 2(C).  THE SELLER'S BROKER IS
CLEARLY "ANY PERSON" AS THE WORDS ARE USED IN SEC. 2(C) - AS CLEARLY
SUCH AS A BUYER'S BROKER. 

IT IS URGED THAT THE SELLER IS FREE TO PASS ON TO THE BUYER IN THE
FORM OF A PRICE REDUCTION ANY DIFFERENTIAL BETWEEN HIS ORDINARY
BROKERAGE EXPENSE AND THE BROKERAGE COMMISSION WHICH HE PAYS ON A
PARTICULAR SALE BECAUSE SEC. 2(A) (FN7) OF THE ACT PERMITS PRICE
DIFFERENTIALS BASED ON SAVINGS IN SELLING COSTS RESULTING FROM
DIFFERING METHODS OF DISTRIBUTION.  FROM THIS PREMISE IT IS REASONED
THAT A SELLER'S BROKER SHOULD NOT BE HELD TO HAVE VIOLATED SEC. 2(C)
FOR HAVING DONE THAT WHICH IS PERMITTED UNDER SEC. 2(A).  WE NEED NOT
DECIDE THE VALIDITY OF THAT PREMISE, BECAUSE THE FACT THAT A
TRANSACTION MAY NOT VIOLATE ONE SECTION OF THE ACT DOES NOT ANSWER THE
QUESTION WHETHER ANOTHER SECTION HAS BEEN VIOLATED.  SECTION 2(C), WITH
WHICH WE ARE HERE CONCERNED, IS INDEPENDENT OF SEC. 2(A) AND WAS
ENACTED BY CONGRESS BECAUSE SEC. 2(A) WAS NOT CONSIDERED ADEQUATE TO
DEAL WITH ABUSES OF THE BROKERAGE FUNCTION.  (FN8) 

BEFORE THE ACT WAS PASSED THE LARGE BUYERS, WHO MAINTAINED THEIR OWN
ELABORATE PURCHASING DEPARTMENTS AND THEREFORE DID NOT NEED THE
SERVICES OF A SELLER'S BROKER BECAUSE THEY BOUGHT THEIR MERCHANDISE
DIRECTLY FROM THE SELLER, DEMANDED AND RECEIVED ALLOWANCES REFLECTING
THESE SAVINGS IN THE COST OF DISTRIBUTION.  IN MANY CASES THEY REQUIRED
THAT "BROKERAGE" BE PAID TO THEIR OWN PURCHASING AGENTS.  AFTER THE ACT
WAS PASSED THEY DISCARDED THE FACADE OF "BROKERAGE" AND MERELY RECEIVED
A PRICE REDUCTION EQUIVALENT TO THE SELLER'S ORDINARY BROKERAGE
EXPENSES IN SALES TO OTHER CUSTOMERS.  WHEN HALED BEFORE THE
COMMISSION, THEY PROTESTED THAT THE TRANSACTION WAS NOT COVERED BY SEC.
2(C) BUT, SINCE IT WAS A PRICE REDUCTION, WAS GOVERNED BY SEC. 2(A). 
THEY ALSO ARGUED THAT BECAUSE NO BROKERAGE SERVICES WERE NEEDED OR USED
IN SALES TO THEM, THEY WERE ENTITLED TO A PRICE DIFFERENTIAL REFLECTING
THIS COST SAVING.  CONGRESS HAD ANTICIPATED SUCH A CONTENTION BY THE
"IN LIEU THEREOF" PROVISION.  (FN9)  ACCORDINGLY, THE COMMISSION (FN10)
AND THE COURTS (FN11) EARLY REJECTED THE CONTENTION THAT SUCH A PRICE
REDUCTION WAS LAWFUL BECAUSE THE BUYER'S PURCHASING ORGANIZATION HAD
SAVED THE SELLER THE AMOUNT OF HIS ORDINARY BROKERAGE EXPENSE. 

IN GREAT ATLANTIC & PACIFIC TEA CO. V. FEDERAL TRADE COMM'N, 106 F.2D
667 (C.A. 3D CIR. 1939), A BUYER SOUGHT TO EVADE SEC. 2(C) BY ACCEPTING
PRICE REDUCTIONS EQUIVALENT TO THE SELLER'S NORMAL BROKERAGE PAYMENTS. 
THE COURT UPHELD THE COMMISSION'S VIEW THAT THE PRICE REDUCTION WAS AN
ALLOWANCE IN LIEU OF BROKERAGE UNDER SEC. 2(C) AND WAS PROHIBITED EVEN
THOUGH, IN FACT, THE SELLER HAD "SAVED" HIS BROKERAGE EXPENSE BY
DEALING DIRECTLY WITH THE SELECT BUYER.  THE BUYER ALSO SOUGHT TO
JUSTIFY ITS PRICE REDUCTION ON THE GROUND THAT IT HAD RENDERED VALUABLE
SERVICES TO THE SELLER.  THE COURT REJECTED THIS ARGUMENT ALSO. 
ALTHOUGH THAT COURT'S INTERPRETATION OF THE "SERVICES RENDERED"
EXCEPTION IN SEC. 2(C) HAS BEEN CRITICIZED, (FN12) ITS CONCLUSION THAT
THE PRICE REDUCTION WAS AN ALLOWANCE IN LIEU OF BROKERAGE WITHIN THE
MEANING OF SEC. 2(C) HAS BEEN FOLLOWED (FN13) AND ACCEPTED.  (FN14) 

WE ARE ASKED TO DISTINGUISH THESE PRECEDENTS ON THE GROUND THAT THERE
IS NO CLAIM BY THE PRESENT BUYER THAT THE PRICE REDUCTION, CONCEDEDLY
BASED IN PART ON A SAVING TO THE SELLER OF PART OF HIS REGULAR
BROKERAGE COST ON THE PARTICULAR SALE, WAS JUSTIFIED BY THE ELIMINATION
OF SERVICES NORMALLY PERFORMED BY THE SELLER OR HIS BROKER.  THERE IS
NO EVIDENCE THAT THE BUYER RENDERED ANY SERVICES TO THE SELLER OR TO
THE RESPONDENT NOR THAT ANYTHING IN ITS METHODS OF DEALING JUSTIFIED
ITS GETTING A DISCRIMINATORY PRICE BY MEANS OF A REDUCED BROKERAGE
CHARGE.  WE WOULD HAVE QUITE A DIFFERENT CASE IF THERE WERE SUCH
EVIDENCE AND WE NEED NOT EXPLORE THE APPLICABILITY OF SEC. 2(C) TO SUCH
CIRCUMSTANCES.  ONE THING IS CLEAR - THE ABSENCE OF SUCH EVIDENCE AND
THE ABSENCE OF A CLAIM THAT THE RENDITION OF SERVICES OR SAVINGS IN
DISTRIBUTION COSTS JUSTIFIED THE ALLOWANCE DOES NOT SUPPORT THE VIEW
THAT SEC. 2(C) HAS NOT BEEN VIOLATED. 

THE FACT THAT THE BUYER WAS NOT AWARE THAT ITS FAVORED PRICE WAS
BASED IN PART ON A DISCRIMINATORY REDUCTION IN RESPONDENT'S BROKERAGE
COMMISSION IS IMMATERIAL.  THE ACT IS AIMED AT PRICE DISCRIMINATION,
NOT CONSPIRACY.  THE BUYER'S INTENT MIGHT BE RELEVANT WERE HE CHARGED
WITH RECEIVING AN ALLOWANCE IN VIOLATION OF SEC. 2(C).  BUT CERTAINLY
IT HAS NO BEARING ON WHETHER THE RESPONDENT HAS VIOLATED THE LAW.  THE
POWERFUL BUYER WHO DEMANDS A PRICE CONCESSION IS CONCERNED ONLY WITH
GETTING IT.  HE DOES NOT CARE WHETHER IT COMES FROM THE SELLER, THE
SELLER'S BROKER, OR BOTH. 

CONGRESS ENACTED THE ROBINSON-PATMAN ACT TO PREVENT SELLERS AND
SELLERS' BROKERS FROM YIELDING TO THE ECONOMIC PRESSURES OF A LARGE
BUYING ORGANIZATION BY GRANTING UNFAIR PREFERENCES IN CONNECTION WITH
THE SALE OF GOODS.  THE FORM IN WHICH THE BUYER PRESSURE IS EXERTED IS
IMMATERIAL AND PROOF OF ITS EXISTENCE IS NOT REQUIRED.  IT IS RARE THAT
THE MOTIVE IN YIELDING TO A BUYER'S DEMANDS IS NOT THE "NECESSITY" FOR
MAKING THE SALE.  AN "INDEPENDENT" BROKER IS NOT LIKELY TO BE
INDEPENDENT OF THE BUYER'S COERCIVE BARGAINING POWER.  HE, LIKE THE
SELLER, IS CONSTRAINED TO FAVOR THE BUYERS WITH THE MOST PURCHASING
POWER.  IF RESPONDENT MERELY PAID OVER PART OF HIS COMMISSION TO THE
BUYER, HE CLEARLY WOULD HAVE VIOLATED THE ACT.  WE SEE NO DISTINCTION
OF SUBSTANCE BETWEEN THE TWO TRANSACTIONS.  IN EACH CASE THE SELLER AND
HIS BROKER MAKE A CONCESSION TO THE BUYER AS A CONSEQUENCE OF HIS
ECONOMIC POWER.  IN BOTH CASES THE RESULT IS THAT THE BUYER HAS
RECEIVED A DISCRIMINATORY PRICE.  IN BOTH CASES THE SELLER'S BROKER
REDUCES HIS USUAL BROKERAGE FEE TO GET A PARTICULAR CONTRACT.  THERE IS
NO DIFFERENCE IN ECONOMIC EFFECT BETWEEN THE SELLER'S BROKER SPLITTING
HIS BROKERAGE COMMISSION WITH THE BUYER (FN15) AND HIS YIELDING PART OF
THE BROKERAGE TO THE SELLER TO BE PASSED ON TO THE BUYER IN THE FORM OF
A LOWER PRICE.  (FN16) 

WE CONCLUDE THAT THE STATUTE CLEARLY APPLIES TO PAYMENTS OR
ALLOWANCES BY A SELLER'S BROKER TO THE BUYER, WHETHER MADE DIRECTLY TO
THE BUYER, OR INDIRECTLY, THROUGH THE SELLER.  THE ALLOWANCES
PROSCRIBED BY SEC. 2(C) ARE THOSE MADE BY "ANY PERSON" WHICH, AS WE
HAVE SAID, CLEARLY ENCOMPASSES A SELLER'S BROKER.  (FN17)  THE
RESPONDENT WAS A NECESSARY PARTY TO THE PRICE REDUCTION GRANTED THE
BUYER.  HIS YIELDING OF PART OF HIS BROKERAGE TO BE PASSED ON TO THE
BUYER WAS A SINE QUA NON OF THE PRICE REDUCTION.  THIS IS NOT TO SAY
THAT EVERY REDUCTION IN PRICE, COUPLED WITH A REDUCTION IN BROKERAGE,
AUTOMATICALLY COMPELS THE CONCLUSION THAT AN ALLOWANCE "IN LIEU" OF
BROKERAGE HAS BEEN GRANTED.  AS THE COMMISSION ITSELF HAS MADE CLEAR,
WHETHER SUCH A REDUCTION IS TANTAMOUNT TO A DISCRIMINATORY PAYMENT OF
BROKERAGE DEPENDS ON THE CIRCUMSTANCES OF EACH CASE.  MAIN FISH CO.,
INC., 53 F.T.C. 88.  NOR DOES THIS "FUSE" PROVISIONS OF SEC. 2(A),
WHICH PERMITS THE DEFENSE OF COST JUSTIFICATION, WITH THOSE OF SEC.
2(C) WHICH DOES NOT; IT BUT REALISTICALLY INTERPRETS THE PROHIBITIONS
OF SEC. 2(C) AS INCLUDING AN INDEPENDENT BROKER'S ALLOWANCE OF A
REDUCED BROKERAGE TO OBTAIN A PARTICULAR ORDER. 

IT IS SUGGESTED THAT REVERSAL OF THIS CASE WOULD ESTABLISH AN
IRREVOCABLE FLOOR UNDER COMMISSION RATES.  WE THINK THAT VIEW HAS NO
FOUNDATION IN FACT OR IN LAW.  BOTH BEFORE AND AFTER THE SALES TO
SMUCKER, RESPONDENT CONTINUED TO CHARGE THE USUAL 5% ON SALES TO OTHER
BUYERS.  THERE IS NOTHING IN THE ACT, NOR IS THERE ANYTHING IN THIS
CASE, TO REQUIRE HIM TO CONTINUE TO CHARGE 5% ON SALES TO ALL
CUSTOMERS.  (FN18)  A PRICE REDUCTION BASED UPON ALLEGED SAVINGS IN
BROKERAGE EXPENSES IS AN "ALLOWANCE IN LIEU OF BROKERAGE" WHEN GIVEN
ONLY TO FAVORED CUSTOMERS.  HAD RESPONDENT, FOR EXAMPLE, AGREED TO
ACCEPT A 3% COMMISSION ON ALL SALES TO ALL BUYERS THERE PLAINLY WOULD
BE NO ROOM FOR FINDING THAT THE PRICE REDUCTIONS WERE VIOLATIONS OF
SEC. 2(C).  NEITHER THE LEGISLATIVE HISTORY NOR THE PURPOSES OF THE ACT
WOULD REQUIRE SUCH AN ABSURD RESULT, AND NEITHER THE COMMISSION NOR THE
COURTS HAVE EVER SUGGESTED IT.  HERE, HOWEVER, THE REDUCTION IN
BROKERAGE WAS MADE TO OBTAIN THIS PARTICULAR ORDER AND THIS ORDER ONLY
AND THEREFORE WAS CLEARLY DISCRIMINATORY. 

THE APPLICABILITY OF SEC. 2(C) TO SELLERS' BROKERS UNDER
CIRCUMSTANCES NOT DISTINGUISHABLE IN PRINCIPLE FROM THE PRESENT CASE IS
SUPPORTED BY A 20-YEAR-OLD ADMINISTRATIVE INTERPRETATION.  BEGINNING IN
1940, FOUR YEARS AFTER THE ACT WAS PASSED, THE COMMISSION RESTRAINED
THE PRACTICE OF BROKERS WHO, WHETHER BUYING AND SELLING ON THEIR OWN
ACCOUNT OR ACTING ON BEHALF OF THE SELLER, SOLD GOODS TO PURCHASERS WHO
BOUGHT THROUGH THEM DIRECT AT A REDUCED PRICE REFLECTING THE SAVINGS
MADE BY THE ELIMINATION OF THE SERVICES OF A LOCAL BROKER.  THIS
PRACTICE WAS HELD TO BE A VIOLATION OF SEC. 2(C), NOT SEC. 2(A). 
(FN19)   IF WE HELD THAT SEC. 2(C) IS NOT APPLICABLE HERE, WE WOULD
DISREGARD THE HISTORY WHICH WE HAVE DELINEATED, OVERTURN A SETTLED
ADMINISTRATIVE PRACTICE, AND APPROVE A CONSTRUCTION THAT IS HOSTILE TO
THE STATUTORY SCHEME - ONE THAT WOULD LEAVE A LARGE LOOPHOLE IN THE
ACT.  ANY DOUBTS AS TO THE WISDOM OF THE ECONOMIC THEORY EMBODIED IN
THE STATUTE ARE QUESTIONS FOR CONGRESS TO RESOLVE.  REVERSED. 

FN1  SECTION 2(C) MAKES IT UNLAWFUL FOR "ANY PERSON  ...  TO PAY OR
GRANT  ...  ANYTHING OF VALUE AS A COMMISSION, BROKERAGE, OR OTHER
COMPENSATION, OR ANY ALLOWANCE OR DISCOUNT IN LIEU THEREOF, EXCEPT FOR
SERVICES RENDERED IN CONNECTION WITH THE SALE OR PURCHASE OF GOODS  ...
EITHER TO THE OTHER PARTY TO SUCH TRANSACTION OR TO AN  ...
INTERMEDIARY THEREIN  ...  ."  49 STAT. 1527. 

FN2  SEE FINAL REPORT ON THE CHAIN-STORE INVESTIGATION, S. DOC. NO.
4, 74TH CONG., 1ST SESS. (1935). 

FN3  SECTION 2 OF THE CLAYTON ACT AS ORIGINALLY ENACTED IN 1914 (38
STAT. 730) APPLIED ONLY TO PRICE DISCRIMINATIONS THE EFFECT OF WHICH
WAS TO "SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A
MONOPOLY."  THIS SECTION WAS MODIFIED AND RETAINED IN SEC. 2(A) AS
AMENDED BY THE ROBINSON-PATMAN ACT.  SEE NOTE 7, INFRA. 

FN4  SEE S. REP. NO. 1502, 74TH CONG., 2D SESS., P. 7; H.R. REP. NO.
2287, 74TH CONG., 2D SESS., PP. 14-15; FEDERAL TRADE COMM'N V.
SIMPLICITY PATTERN CO., 360 U.S. 55, 69. 

FN5  IN THE FINAL REPORT ON THE CHAIN-STORE INVESTIGATION, NOTE 2,
SUPRA, CONGRESS HAD BEFORE IT EXAMPLES NOT ONLY OF LARGE BUYERS
DEMANDING THE PAYMENT OF BROKERAGE TO THEIR AGENTS BUT ALSO INSTANCES
WHERE BUYERS DEMANDED DISCOUNTS, ALLOWANCES, OR OUTRIGHT PRICE
REDUCTIONS BASED ON THE THEORY THAT FEWER BROKERAGE SERVICES WERE
NEEDED IN SALES TO THESE PARTICULAR BUYERS, OR THAT NO BROKERAGE
SERVICES WERE NECESSARY AT ALL.  ID., AT 25, 63.  THESE TRANSACTIONS
WERE DESCRIBED IN THE REPORT AS THE GIVING OF "ALLOWANCES IN LIEU OF
BROKERAGE" (ID., AT 62) OR "DISCOUNTS IN LIEU OF BROKERAGE."  ID., AT
27. 

FN6  THE REPORT OF THE HOUSE JUDICIARY COMMITTEE DESCRIBED THE
BROKERAGE PROVISION AS DEALING "WITH THE ABUSE OF THE BROKERAGE
FUNCTION FOR PURPOSES OF OPPRESSIVE DISCRIMINATION."  H.R.  REP. NO.
2287, 74TH CONG., 2D SESS., P. 14.  AND ALTHOUGH NOT MENTIONED IN THE
COMMITTEE REPORTS, THE DEBATES ON THE BILL SHOW CLEARLY THAT SEC. 2(C)
WAS INTENDED TO PROSCRIBE OTHER PRACTICES SUCH AS THE "BRIBING" OF A
SELLER'S BROKER BY THE BUYER.  SEE 80 CONG. REC. 7759-7760, 8111-8112. 

FN7  SECTION 2(A), 15 U.S.C. SEC. 13(A), PROVIDES, IN RELEVANT PART:
"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE  ...  TO
DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF
LIKE GRADE AND QUALITY  ...  WHERE THE EFFECT OF SUCH DISCRIMINATION
MAY BE SUBSTANTIALLY TO LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY
...  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  ...  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  ...  SOLD OR
DELIVERED." 

FN8  THE BILL AS REPORTED FROM THE SENATE COMMITTEE EXCEPTED SAVINGS
IN BROKERAGE FROM THE COST PROVISO IN SEC. 2(A).  S. REP. NO. 1502,
74TH CONG., 2D SESS., P. 5.  YET WHEN THE BILL WAS FINALLY PASSED, THE
REFERENCE TO BROKERAGE IN SEC. 2(A) HAD BEEN DELETED.  THIS WAS DONE,
ACCORDING TO THE CONFERENCE REPORT, "FOR THE REASON THAT THE MATTER OF
BROKERAGE IS DEALT WITH IN A SUBSEQUENT SUBSECTION OF THE BILL."  H.R.
CONF. REP. NO. 2951, 74TH CONG., 2D SESS., P. 6.  BY STRIKING THE WORDS
"OTHER THAN BROKERAGE" FROM SEC. 2(A) WE THINK CONGRESS SHOWED BOTH AN
INTENTION THAT "LEGITIMACY" OF BROKERAGE BE GOVERNED ENTIRELY BY SEC.
2(C) AND AN UNDERSTANDING THAT THE LANGUAGE OF SEC. 2(C) WAS
SUFFICIENTLY BROAD TO COVER ALLOWANCES TO BUYERS IN THE FORM OF PRICE
CONCESSIONS WHICH REFLECT A DIFFERENTIAL IN BROKERAGE COSTS.  THE
LEGISLATIVE HISTORY IS BARREN OF ANY INDICATION THAT A CHANGE IN
SUBSTANCE WAS INTENDED BY THIS DELETION.  INDEED, THE CONFERENCE REPORT
CLEARLY PRECLUDES ANY OTHER INFERENCE. 

FN9  THE BROKERAGE CLAUSE IN THE BILL WAS ORIGINALLY DIRECTED ONLY AT
OUTRIGHT COMMISSION PAYMENTS BY SELLERS TO BUYERS' AGENTS.  THE SENATE
ADDED THE PHRASES "OR ANY ALLOWANCE OR DISCOUNT IN LIEU THEREOF," AND
"EITHER TO THE OTHER PARTY TO SUCH TRANSACTION (OR HIS INTERMEDIARY)." 
S. REP. NO. 1502, 74TH CONG., 2D SESS., P. 7.  "THIS PHRASING OF THE
LAW WAS OBVIOUSLY DESIGNED TO PREVENT EVASION OF THE RESTRICTION
THROUGH A MERE MODIFICATION OF THE FORM OF THE SALES CONTRACT.  IT WAS
ASSUMED THAT LARGE BUYERS WOULD SEEK TO CONVERT THE BROKERAGE WHICH
THEY HAD HITHERTO RECEIVED INTO AN OUTRIGHT PRICE REDUCTION."  ZORN AND
FELDMAN, BUSINESS UNDER THE NEW PRICE LAWS (1937), 219. 

FN10  THE COMMISSION HAS HELD THAT A PRICE REDUCTION TO FAVORED
BUYERS, WHO BOUGHT DIRECT WITHOUT THE INTERVENTION OF A BROKER, WHICH
WAS EQUIVALENT TO BROKERAGE CURRENTLY PAID BY THE SELLER TO ITS BROKERS
FOR SALES TO OTHER CUSTOMERS WAS A VIOLATION OF SEC. 2(C).  IT HAS
ISSUED CEASE-AND-DESIST ORDERS AGAINST BUYERS IN, E.G., THE GREAT
ATLANTIC & PACIFIC TEA CO., 26 F.T.C.  486 (1938), AFF'D 106 F.2D 667
(C.A. 3D CIR. 1939); GENERAL GROCER CO., 33 F.T.C. 377 (1941); GIANT
TIGER CORPORATION, 33 F.T.C. 830 (1941); UCO FOOD CORPORATION, 33
F.T.C. 924 (1941); R.C. WILLIAMS & CO., 33 F.T.C. 1182 (1941); A.
KRASNE, INC., 34 F.T.C. 121 (1941); AND AGAINST SELLERS IN RAMSDELL
PACKING CO., 32 F.T.C. 1187 (1941); THE UNION MALLEABLE MFG. CO., 52
F.T.C. 408 (1955).  SEE ALSO SEVERAL MEMORANDUM DECISIONS REPORTED IN
32 F.T.C. 1192, 1193 (1941). 

FN11  GREAT ATLANTIC & PACIFIC TEA CO. V. FEDERAL TRADE COMM'N, 106
F.2D 667 (C.A. 3D CIR. 1939); SOUTHGATE BROKERAGE CO. V. FEDERAL TRADE
COMM'N, 150 F.2D 607 (C.A. 4TH CIR. 1945) (BUYER'S BROKER BUYING AND
SELLING ON HIS OWN BEHALF). 

FN12  SEE REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO
STUDY THE ANTITRUST LAWS (1955) 192, 193; OPPENHEIM, FEDERAL ANTITRUST
LEGISLATION:  GUIDEPOSTS TO A REVISED NATIONAL ANTITRUST POLICY, 50
MICH. L. REV. 1139, 1207, N. 178; ROWE, PRICE DISCRIMINATION,
COMPETITION AND CONFUSION: ANOTHER LOOK AT ROBINSON-PATMAN, 60 YALE
L.J. 929, 957-958. 

FN13  SOUTHGATE BROKERAGE CO. V. FEDERAL TRADE COMM'N, SUPRA, NOTE
11.  SEE ALSO CASES CITED, NOTE 10, SUPRA. 

FN14  IN SPEAKING OF THESE INTERPRETATIONS OF SEC. 2(C), A LEADING
AUTHORITY SAID: 

"HERE TOO THE COMMISSION AND THE COURT HAVE APPLIED THE CONGRESSIONAL
INTENT WITH PRECISION.  IF CONGRESS ENVISAGED THE EVIL AS THE
TRANSMISSION OF BROKERAGE COMMISSIONS TO THE BUYER, THEN TO PERMIT THE
BUYER TO GET THE SAME THING UNDER 2(A) IN ANOTHER FORM AND NAME WOULD
DEPRIVE 2(C) OF ALL SUBSTANCE."  OPPENHEIM, ADMINISTRATION OF THE
BROKERAGE PROVISION OF THE ROBINSON-PATMAN ACT, 8 GEO. WASH. L. REV.
511, 535. 

FN15  SEE OLIVER BROS. V. FEDERAL TRADE COMM'N, 102 F.2D 763, 770
(C.A. 4TH CIR.). 

FN16  THE CONFERENCE REPORT STATES THAT SEC. 2(C) "PROHIBITS THE
DIRECT OR INDIRECT PAYMENT OF BROKERAGE EXCEPT FOR SUCH SERVICES
RENDERED."  H.R. CONF. REP. NO. 2951, 74TH CONG., 2D SESS., P. 7. 

FN17  SEVERAL WRITERS, INCLUDING ONE OF THE COAUTHORS OF THE ACT,
HAVE VIEWED SEC. 2(C) AS COVERING PAYMENTS OR ALLOWANCES BY SELLERS'
BROKERS FOR THE BENEFIT OF PARTICULAR BUYERS.  SEE PATMAN, THE ROBINSON
PATMAN ACT (1938), 102, 108; AUSTIN, PRICE DISCRIMINATION AND RELATED
PROBLEMS UNDER THE ROBINSON-PATMAN ACT, AM. L. INST.  (REV.  ED. 1953),
108.  (SEE ALSO 2D REV.  ED., 1959, 116); OPPENHEIM, ADMINISTRATION OF
THE BROKERAGE PROVISION OF THE ROBINSON-PATMAN ACT, 8 GEO. WASH. L.
REV. 511, 544 (1940); EDWARDS, THE PRICE DISCRIMINATION LAW (1959),
104.  AS PATMAN, OP. CIT., SUPRA, AT 102, STATES RESPECTING SELLER'S
BROKERAGE, "TO WAIVE THE COST OF THE BROKERAGE OR COMMISSION TO ONE
PURCHASER AND ASSESS IT AGAINST ANOTHER REPRESENTS AN UNFAIR
DISCRIMINATION BETWEEN THE PURCHASERS, IS AN ATTEMPT TO DIVORCE ONE
ITEM OF COST FROM THE REST WHEN, IN FACT, THEY ALL MAKE UP THE WHOLE,
AND PERMITS A PRACTICE TO GAIN FOOTHOLD WHICH MAY INCREASE IN SUCH
PROPORTIONS AS TO DEMORALIZE THE INDUSTRY OF WHICH IT IS A PART." 

FN18  CF. ROBINSON V. STANLEY HOME PRODUCTS, INC., 272 F.2D 601 (C.A.
1ST CIR.), WHERE IT WAS HELD THAT SEC. 2(C) WAS NOT VIOLATED BY A
SELLER WHO ELIMINATED THE SERVICES OF A BROKER ENTIRELY, CONVERTED TO
DIRECT SELLING, AND THEREAFTER REDUCED HIS PRICES. 

FN19  SEE ALBERT W. SISK & SON, 31 F.T.C. 1543 (1940); C.F. UNRUH
BROKERAGE CO., 31 F.T.C.  1557 (1940); C.G. REABURN & CO., 31 F.T.C.
1565 (1940); WILLIAM SILVER & CO., 31 F.T.C. 1589 (1940); H.M. RUFF &
SON, 31 F.T.C. 1573 (1940); THOMAS ROBERTS & CO., 31 F.T.C. 1551
(1940); AMERICAN BROKERAGE CO., 31 F.T.C. 1581 (1940); W.E. ROBINSON &
CO., 32 F.T.C. 370 (1941); CUSTOM HOUSE PACKING CORP., 43 F.T.C. 164
(1946). 

WE NEED NOT VIEW THIS ADMINISTRATIVE PRACTICE AS LAYING DOWN AN
ABSOLUTE RULE THAT SEC. 2(C) IS VIOLATED BY THE PASSING ON OF SAVINGS
IN BROKER'S COMMISSIONS TO DIRECT BUYERS, FOR HERE, AS WE HAVE
EMPHASIZED, THE "SAVINGS" IN BROKERAGE WERE PASSED ON TO A SINGLE BUYER
WHO WAS NOT SHOWN IN ANY WAY TO HAVE DESERVED FAVORED TREATMENT. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
HARLAN AND MR. JUSTICE STEWART JOIN, DISSENTING. 

THE COURT HOLDS, IN EFFECT, THAT THE ACTION OF AN INDEPENDENT BROKER,
ENGAGED BY A SELLER, IN REDUCING HIS CONTRACT RATE OF COMMISSION FOR
THE PURPOSE OF ENABLING THE SELLER TO MAKE A SALE TO A BUYER AT A
REDUCED PRICE, CONSTITUTES THE GRANTING OF AN ALLOWANCE IN LIEU OF
"BROKERAGE" BY THE BROKER TO THE BUYER, IN VIOLATION OF SEC. 2(C) OF
THE CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT, 15 U.S.C. SEC.
13(C). 

RESPONDENT, AN INDEPENDENT BROKER OF CHICAGO, ILLINOIS, WAS ENGAGED
BY CANADA FOODS, LTD., OF KENTVILLE, NOVA SCOTIA, TO PROCURE ORDERS FOR
ITS PRODUCTS UPON A COMMISSION OR "BROKERAGE" BASIS OF 5% OF THE AMOUNT
OF THE SALES MADE.  OTHER INDEPENDENT BROKERS IN THE UNITED STATES WERE
SIMILARLY ENGAGED BY CANADA FOODS, BUT UPON A COMMISSION OR BROKERAGE
BASIS OF 4%.  CANADA FOODS HAD ANNOUNCED A PRICE OF $1.30 PER GALLON
FOR ITS APPLE CONCENTRATE.  RESPONDENT AND ANOTHER INDEPENDENT BROKER,
BOTH ACTING ON BEHALF OF CANADA FOODS, SEPARATELY SOLICITED THE J.M.
SMUCKER COMPANY OF ORRVILLE, OHIO, FOR AN ORDER FOR THAT PRODUCT. 
SMUCKER WAS WILLING TO PURCHASE A QUANTITY OF THE PRODUCT, BUT WOULD
PAY ONLY $1.25 PER GALLON FOR IT.  FINALLY, RESPONDENT AGREED WITH
CANADA FOODS TO REDUCE ITS COMMISSION OR BROKERAGE TO 3% IN ORDER TO
PERMIT THE LATTER TO ACCEPT THE SMUCKER ORDER.  THEREUPON, CANADA FOODS
ACCEPTED AND FILLED THE ORDER, AND THEREAFTER PAID RESPONDENT A
COMMISSION OF 3% AS AGREED.  SMUCKER, THE BUYER, WAS NOT ADVISED THAT
RESPONDENT HAD AGREED TO REDUCE ITS COMMISSION CHARGE TO THE SELLER. 

THEREAFTER, IN WHAT APPEARS TO BE THE FIRST PROCEEDING OF THIS TYPE,
THE FEDERAL TRADE COMMISSION CHARGED RESPONDENT WITH GRANTING AND
ALLOWING THE BUYER A PORTION OF ITS BROKERAGE FEE, IN VIOLATION OF SEC.
2(C) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT, 15
U.S.C. SEC. 13(C), AND, AFTER HEARING, ENTERED A CEASE-AND-DESIST ORDER
AGAINST IT.  THE COURT OF APPEALS REVERSED, HOLDING THAT RESPONDENT, AN
INDEPENDENT SELLER'S BROKER, WAS NOT COVERED BY SEC. 2(C), AND MOREOVER
HAD NOT PAID ANYTHING OF VALUE AS A COMMISSION, BROKERAGE, OR OTHER
COMPENSATION TO THE BUYER.  261 F.2D 725.  WE GRANTED CERTIORARI, 360
U.S. 908. 

IN REVERSING THE COURT OF APPEALS, THE COURT NOW HOLDS THAT SEC. 2(C)
"CLEARLY APPLIES TO PAYMENTS OR ALLOWANCES BY A SELLER'S BROKER TO THE
BUYER, WHETHER MADE DIRECTLY TO THE BUYER, OR INDIRECTLY, THROUGH THE
SELLER."  IN MY VIEW, NO SUCH QUESTION IS PRESENTED ON THE ADMITTED
FACTS OF THIS CASE, AND THE COURT'S HOLDING IS NOT SUPPORTED BY THE
TERMS NOR THE OBJECT OF SEC. 2(C), BUT IS ACTUALLY OPPOSED TO ITS
DECLARED PURPOSE AS SHOWN BY ITS LEGISLATIVE HISTORY. 

...  ANYTHING OF VALUE AS A COMMISSION, BROKERAGE, OR OTHER
COMPENSATION, OR ANY ALLOWANCE OR DISCOUNT IN LIEU THEREOF, EXCEPT FOR
SERVICES RENDERED IN CONNECTION WITH THE SALE OR PURCHASE OF GOODS  ...
EITHER TO THE OTHER PARTY TO SUCH TRANSACTION OR TO AN AGENT,
REPRESENTATIVE, OR OTHER INTERMEDIARY THEREIN WHERE SUCH INTERMEDIARY
IS ACTING IN FACT FOR OR IN BEHALF  ...  OF ANY PARTY TO SUCH
TRANSACTION OTHER THAN THE PERSON BY WHOM SUCH COMPENSATION IS SO
GRANTED OR PAID."  (FN1) 

THE PHRASE "ANY PERSON" IN SEC. 2(C) INCLUDES, OF COURSE, EVEN A
TRULY INDEPENDENT SELLER'S BROKER.  BUT THAT ONLY POSES THE TRUE
QUESTION, WHICH IS WHETHER AN AGREEMENT BY SUCH A BROKER TO REDUCE HIS
COMMISSION CHARGE TO THE SELLER, THUS ENABLING THE SELLER TO REDUCE ITS
PRICE, CONSTITUTES THE PAYING OR GRANTING BY THE BROKER OF "ANYTHING OF
VALUE AS A COMMISSION, BROKERAGE, OR OTHER COMPENSATION," OR AN
"ALLOWANCE OR DISCOUNT IN LIEU THEREOF," TO THE BUYER. 

THERE IS NO CONTENTION HERE THAT THE BUYER MADE ANY CLAIM FOR
"ANYTHING OF VALUE AS A COMMISSION, BROKERAGE, OR OTHER COMPENSATION
...  FOR SERVICES RENDERED IN CONNECTION WITH THE  ...  PURCHASE OF THE
GOODS," EITHER DIRECTLY OR THROUGH ANY INTERMEDIARY.  RATHER, IT IS
CONCEDED THAT THE BUYER DID NOT EVEN KNOW THAT RESPONDENT HAD AGREED
WITH THE SELLER TO REDUCE ITS COMMISSION CHARGE.  NOR IS THERE ANY
CLAIM THAT RESPONDENT WAS "ACTING IN FACT FOR OR IN BEHALF  ...  OF ANY
PARTY TO SUCH TRANSACTION OTHER THAN THE SELLER BY WHOM THE CONCESSION
IN PRICE WAS GRANTED."  RATHER, IT IS CONCEDED THAT IT WAS NOT.  NOR,
INDEED, IS THERE ANY CLAIM THAT RESPONDENT ACTUALLY PAID "ANYTHING OF
VALUE AS A COMMISSION, BROKERAGE OR OTHER COMPENSATION" TO THE BUYER OR
TO ANY INTERMEDIARY WHO WAS "ACTING IN FACT FOR OR IN ITS BEHALF." 
WHAT AND ALL RESPONDENT DID WAS TO REDUCE ITS CHARGE TO THE SELLER FOR
ITS SERVICES FROM 5% TO 3%.  IT MUST SURELY BE CLEAR THAT THIS DID NOT
CONSTITUTE A VIOLATION BY RESPONDENT OF THE TERMS OF SEC. 2(C).  FOR IF
IT DID, THEN ALL LEGITIMATE COMMISSION RATES ARE FROZEN IN DESTRUCTION
OF COMPETITION, AND IN ACTUAL VIOLATION OF THE ANTITRUST LAWS.    I
TURN NOW TO THE PURPOSE OF SEC. 2(C) AS SHOWN BY ITS LEGISLATIVE
HISTORY.  THE MOTIVATING FACTOR BEHIND THE ENACTMENT OF SEC. 2(C) WAS
THE ELIMINATION OF THE PRACTICE BY LARGE BUYERS OF DEMANDING AND
RECEIVING PRICE CONCESSIONS IN THE GUISE OF "DUMMY BROKERAGE" PAYMENTS
AND "ALLOWANCES" FOR "SERVICES" CLAIMED TO HAVE BEEN RENDERED TO
SELLERS, BUT WHICH WERE NOT ACTUALLY PERFORMED.  (FN2) IT WAS CONGRESS'
PURPOSE TO ELIMINATE THAT EVIL.  ACCORDINGLY, IT DESIGNED SEC. 2(C) TO
PROHIBIT PAYMENTS OR ALLOWANCES OF "ANYTHING OF VALUE AS A COMMISSION,
BROKERAGE, OR OTHER COMPENSATION" BY A SELLER TO A BUYER, DIRECTLY OR
THROUGH AN INTERMEDIARY, "WHERE SUCH INTERMEDIARY IS ACTING IN FACT FOR
OR IN BEHALF OF THE BUYER."  (FN3)  ALTHOUGH CONGRESS TOOK THE VIEW
THAT NEITHER A PARTY TO THE TRANSACTION NOR HIS INTERMEDIARY COULD
PERFORM LEGITIMATE SERVICES FOR THE OTHER PARTY, SEC. 2(C) WAS NOT
INTENDED TO AND DID NOT PROSCRIBE PAYMENTS BY A SELLER OR A BUYER TO
HIS OWN BROKER FOR SERVICES ACTUALLY RENDERED TO HIM, NOR DID CONGRESS
INTEND TO FIX OR FREEZE BROKERAGE RATES OR OTHERWISE INTERFERE WITH
SUCH LEGITIMATE BROKERAGE OPERATIONS.  (FN4)  THE PURPOSE OF SEC. 2(C),
AS SHOWN BY THE LEGISLATIVE HISTORY REFERRED TO, WAS NOT TO EMBRACE OR
AFFECT LEGITIMATELY NEGOTIATED RATES OF COMMISSION FOR BROKERS'
SERVICES. 

AS I HAVE POINTED OUT, THIS IS NOT A CASE WHERE THE BUYER HAS CLAIMED
OR RECEIVED, EITHER DIRECTLY OR THROUGH ITS INTERMEDIARY, ANY
"BROKERAGE" "ALLOWANCE," OR DISCOUNT IN PRICE, AS COMPENSATION FOR
SERVICES.  (FN5)  NOR HAS THE BUYER OBTAINED ANY ALLOWANCE OR DISCOUNT
BECAUSE OF ANY "SAVINGS" CLAIMED TO HAVE BEEN EFFECTED FOR THE SELLER
THROUGH ELIMINATION BY THE BUYER OR HIS BROKER OF SERVICES NORMALLY
PERFORMED BY THE SELLER OR HIS BROKER.  (FN6)  I AM, THEREFORE, UNABLE
TO SEE OR UNDERSTAND HOW IT MAY BE THOUGHT THAT THE ACTION OF
RESPONDENT IN REDUCING ITS CHARGE TO THE SELLER FROM 5% TO 3%
CONSTITUTED THE GRANTING, EITHER DIRECTLY OR INDIRECTLY, OF "A
COMMISSION, BROKERAGE, OR OTHER COMPENSATION, OR ANY ALLOWANCE OR
DISCOUNT IN LIEU THEREOF" TO THE BUYER, WITHIN THE MEANING OF THOSE
TERMS AS USED IN SEC. 2(C).  SINCE THIS CASE DOES NOT IN ANY WAY
INVOLVE ANY PAYMENT OR ALLOWANCE FOR SERVICES CLAIMED TO HAVE BEEN
PERFORMED BY THE BUYER OR HIS INTERMEDIARY, IT IS SIMPLY NOT THE TYPE
OR KIND OF CASE THAT IS COVERED AND GOVERNED BY SEC. 2(C).  INASMUCH AS
THE LEGISLATIVE HISTORY OF SEC. 2(C) SHOWS THAT CONGRESS DID NOT INTEND
THAT SECTION TO AFFECT NEGOTIATED CHARGES FOR LEGITIMATE BROKERAGE
SERVICES, I SUBMIT THAT THE COURT OUGHT NOT SO EXTEND IT BY
CONSTRUCTION. 

UNTIL TODAY, IT SEEMS ALWAYS TO HAVE BEEN GENERALLY UNDERSTOOD THAT A
TRULY INDEPENDENT BROKER, SUCH AS RESPONDENT, WAS FREE TO NEGOTIATE THE
RATE OR AMOUNT OF HIS COMMISSIONS WITH HIS PRINCIPAL WITHOUT FEAR OF
VIOLATING SEC. 2(C).  (FN7)  SUCH WAS THE EXPRESSED CONGRESSIONAL
INTENTION.  (FN8) SURELY IF THE RATE OR AMOUNT OF RESPONDENT'S
COMMISSIONS FOR SERVICES RENDERED TO CANADA FOODS HAD BEEN LEFT TO
NEGOTIATION ON EACH SALE, NO ONE WOULD CONTEND THAT AN AGREEMENT BY
RESPONDENT TO ACCEPT A COMMISSION OF 3% FOR THE SALE IN QUESTION WOULD
VIOLATE SEC. 2(C).  LIKEWISE, THERE COULD BE NO VIOLATION OF SEC. 2(C)
IF, INSTEAD OF DEALING THROUGH A BROKER WHO CHARGED A 5% COMMISSION,
THE SELLER HAD DEALT THROUGH A BROKER WHO CHARGED ONLY 3%.  BUT THE
COURT NOW HOLDS THAT AN INDEPENDENT SELLER'S BROKER WHO HAS ONCE AGREED
WITH THE SELLER ON A GENERAL RATE OF COMMISSION MAY NOT RENEGOTIATE
THAT RATE WITH HIS PRINCIPAL IN ORDER TO EFFECT A SALE THAT WOULD
OTHERWISE BE LOST TO HIM.  THE FACT THAT RESPONDENT AND THE SELLER HAD
PREVIOUSLY ENTERED INTO AN AGREEMENT CONCERNING COMMISSION RATES SHOULD
NOT, IN MY VIEW, BE CONTROLLING, FOR I CAN SEE NO SOUND REASON WHY THE
SELLER AND HIS BROKER MUST REGARD SUCH AN AGREEMENT AS ESTABLISHING AN
IRREVOCABLE FLOOR UNDER COMMISSION RATES OR AMOUNTS IN ORDER TO AVOID
ANTITRUST CONSEQUENCES.  THE COURT'S HOLDING APPEARS TO ME TO BE AN
UNWARRANTED INTERFERENCE WITH LEGITIMATE BROKERAGE OPERATIONS, IN
DIRECT CONTRAVENTION OF CONGRESSIONAL INTENT. 

QUITE OBVIOUSLY, THE COURT'S REAL CONCERN IN THIS CASE IS WITH THE
PRICE REDUCTION WHICH THIS PARTICULAR BUYER HAS RECEIVED.  BUT, WHILE
IT WAS THE AIM OF THE ROBINSON-PATMAN ACT TO ELIMINATE DISCRIMINATORY
PRICE ADVANTAGES WHICH PARTICULAR BUYERS MIGHT OBTAIN THROUGH UNFAIR
MEANS, IT SHOULD BE BORNE IN MIND THAT CONGRESS DID NOT CHOOSE TO
CONDEMN ALL PRICE DIFFERENCES BETWEEN PURCHASERS.  SECTION 2(A),
DESIGNED TO DEAL WITH OUTRIGHT PRICE DISCRIMINATIONS BETWEEN PURCHASERS
WHICH MAY LESSEN COMPETITION, CONTAINS, FOR EXAMPLE, A PROVISO TO THE
EFFECT THAT "NOTHING  ...  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."  (FN9)
THIS PROVISO WAS INCORPORATED FOR THE PURPOSE OF "PRESERVING FOR THE
PUBLIC THE BENEFITS OF EFFICIENT MARKETING METHODS WHILE AT THE SAME
TIME SUBJECTING TO THE PROHIBITIONS OF THE STATUTE THOSE 'UNEARNED'
PRICE DIFFERENTIALS WHICH COULD NOT BE REASONABLY RELATED TO SOME
SAVINGS IN THE SELLER'S COSTS OF MANUFACTURE, SALE, OR DELIVERY." 
REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE
ANTITRUST LAWS (1955), P. 171.  SEE ALSO H.R. REP. NO. 2287, 74TH
CONG., 2D SESS., PP. 9-10. 

IT WAS THE EVIDENT INTENTION OF CONGRESS IN SEC. 2(A) TO PERMIT
SELLERS TO PASS THROUGH TO BUYERS, IN THE FORM OF REDUCED PRICES, ANY
TRUE SAVINGS IN THE COST OF DISTRIBUTION OF THEIR GOODS.  THERE APPEARS
TO BE NO BASIS FOR ASCRIBING TO CONGRESS AN INTENTION BY SEC. 2(C) TO
REQUIRE A SELLER WHO USES THE SERVICES OF A BROKER IN SOME SALES TO DO
SO IN ALL SALES, OR TO REQUIRE THAT BROKERAGE RATES BE STATIC.  YET
THIS WOULD BE THE EFFECT OF THE COMMISSION'S CONTENTION THAT A SALE
MADE DIRECTLY BY SUCH A SELLER TO A BUYER AT A PRICE THAT DOES NOT
INCLUDE ANY BROKERAGE CONSTITUTES THE GRANTING BY THE SELLER TO THE
BUYER OF BROKERAGE OR AN ALLOWANCE IN LIEU OF BROKERAGE UNDER SEC.
2(C).  (FN10)  SINCE A REDUCTION (OR EVEN ELIMINATION) OF LEGITIMATE
BROKERAGE FEES PAID BY THE SELLER TO AN INDEPENDENT BROKER REPRESENTING
HIM MIGHT WELL CONSTITUTE A TRUE SAVING IN THE COST OF ONE PHASE OF THE
MARKETING PROCESS, SUCH A REDUCTION MAY, IN PROPER CIRCUMSTANCES,
VALIDLY JUSTIFY A REDUCTION IN PRICE TO A PARTICULAR BUYER.  (FN11)
ONCE THIS FACT IS RECOGNIZED, AND IS COUPLED WITH AN UNDERSTANDING THAT
THE REAL PURPOSE OF SEC. 2(C) WAS TO PROHIBIT ALLOWANCES BY A SELLER
BASED ON SERVICES CLAIMED TO HAVE BEEN PERFORMED, TO THE BENEFIT OF THE
SELLER, BY THE BUYER OR HIS BROKER, I WOULD THINK THERE IS NO CHOICE
BUT TO CONCLUDE THAT THE TRANSACTION HERE IN QUESTION WAS ONE WHICH
CONGRESS CONTEMPLATED WOULD BE ACTIONABLE ONLY IN A PROCEEDING UNDER
SEC. 2(A), SUBJECT TO ANY VALID "COST JUSTIFICATION" DEFENSE.  THE HIGH
STANDARDS OF PROOF REQUIRED TO SUSTAIN A "COST JUSTIFICATION" DEFENSE
IN A SEC. 2(A) PROCEEDING ELIMINATE ANY POSSIBILITY OF ESTABLISHING AS
A TRUE COST SAVING ANY REDUCTION IN BROKERAGE COMMISSIONS MADE AS A
SUBTERFUGE FOR THE GRANTING OF AN ALLOWANCE OR DISCOUNT AS A REBATE TO
A BUYER, WHETHER OR NOT AS THE RESULT OF COERCIVE PRESSURE OF THE BUYER
UPON THE SELLER OR HIS BROKER.  (FN12) 

HOWEVER, UNDER THE EXPANSIVE READING WHICH THE COURT NOW GIVES SEC.
2(C), IN OPPOSITION, I BELIEVE, TO ITS LEGISLATIVE HISTORY, THIS
PROVISION MAY NOW BE APPLIED TO PROHIBIT A PRICE REDUCTION GRANTED BY A
SELLER TO A BUYER, EVEN THOUGH SUCH PRICE REDUCTION MAY BE WELL BASED
SOLELY ON TRUE SAVINGS ARISING FROM A REDUCTION IN THE COST OF
LEGITIMATE BROKERAGE SERVICES PERFORMED BY THE SELLER'S OWN BROKER.  I
AM UNABLE TO PERCEIVE ANY BASIS FOR A CONCLUSION THAT RESPONDENT'S
REDUCTION OF ITS BROKERAGE CHARGE TO THE SELLER, AND THE SELLER'S
CONSEQUENT REDUCTION IN PRICE TO THE BUYER, VIOLATED THE PROVISIONS OF
SEC. 2(C).  THAT CONCLUSION SEEMS TO ME TO BE AN OBVIOUS THWARTING OF
THE INTENTION OF CONGRESS TO ALLOW TRUE COST SAVINGS TO BE PASSED
THROUGH TO BUYERS. 

INDEED, THE COURT ITSELF SEEMS TO DISPLAY SOME CONCERN FOR THE
POTENTIAL SWEEP OF TODAY'S DECISION.  IT DECLARES THAT ITS
INTERPRETATION OF THE STATUTE INCLUDES "AN INDEPENDENT BROKER'S
ALLOWANCE OF A REDUCED BROKERAGE TO OBTAIN A PARTICULAR ORDER," AND IT
IS AT PAINS TO POINT OUT THAT "THE REDUCTION IN BROKERAGE WAS MADE TO
OBTAIN THIS PARTICULAR ORDER AND THIS ORDER ONLY AND THEREFORE WAS
CLEARLY DISCRIMINATORY."  THE COURT ALSO ASSERTS THAT ITS HOLDING IN
THIS CASE SHOULD NOT BE UNDERSTOOD TO MEAN "THAT EVERY REDUCTION IN
PRICE, COUPLED WITH A REDUCTION IN BROKERAGE, AUTOMATICALLY COMPELS THE
CONCLUSION THAT AN ALLOWANCE 'IN LIEU' OF BROKERAGE HAS BEEN GRANTED,"
INDICATING THAT "WHETHER SUCH A REDUCTION IS TANTAMOUNT TO A
DISCRIMINATORY PAYMENT OF BROKERAGE DEPENDS ON THE CIRCUMSTANCES OF
EACH CASE."  EVEN FURTHER, THE COURT MAKES IT CLEAR THAT IT DOES NOT
INTEND TO APPROVE ANY ABSOLUTE RULE THAT SEC. 2(C) IS VIOLATED IN EVERY
CASE WHERE SAVINGS IN BROKERAGE ARE PASSED ON TO BUYERS - JUSTIFYING
ITS HOLDING IN THIS CASE BY STATING THAT "THE 'SAVINGS' IN BROKERAGE
WERE PASSED ON TO A SINGLE BUYER WHO WAS NOT SHOWN IN ANY WAY TO HAVE
DESERVED FAVORED TREATMENT." 

TO ME THESE EFFORTS BY THE COURT TO SO LIMIT ITS HOLDING REPRESENT A
CLEAR RECOGNITION OF THE FACT THAT IN SOME CASES A REDUCTION OR
ELIMINATION OF BROKERAGE COSTS MIGHT WELL JUSTIFY A VALID REDUCTION IN
PRICE BY A SELLER TO A PARTICULAR BUYER, AND, IN SUCH CASES, THE COURT
IS APPARENTLY QUITE PREPARED TO HOLD THAT SEC. 2(C) WOULD NOT BE
VIOLATED.  BUT AS I READ SEC. 2(C), EITHER ITS TERMS ARE NOT APPLICABLE
TO ANY CASE WHERE A PRICE REDUCTION RESULTS FROM A REDUCTION IN THE
SELLER'S LEGITIMATE BROKERAGE COSTS, OR THEY ARE APPLICABLE TO ALL SUCH
CASES.  SECTION 2(C) DOES NOT EXPRESSLY REQUIRE DISCRIMINATION BETWEEN
PURCHASERS AS AN ELEMENT OF ITS PROSCRIPTIONS, NOR DOES IT PROVIDE ANY
DEFENSES BASED ON LEGITIMATE SAVINGS IN BROKERAGE COSTS; ONLY SEC. 2(A)
CONTAINS SUCH PROVISIONS.  AND AS WE SAID JUST LAST TERM, IN CONSTRUING
SEC. 2(E) OF THE ACT, "WE CANNOT SUPPLY WHAT CONGRESS HAS STUDIOUSLY
OMITTED."  FEDERAL TRADE COMM'N V. SIMPLICITY PATTERN CO., 360 U.S. 55,
67. 

I CAN ONLY CONCLUDE THAT, BY LEAVING THE DOOR OPEN FOR CASES IN WHICH
A REDUCTION IN PRICE BASED ON A SAVING IN THE SELLER'S BROKERAGE COSTS
MAY, IN ITS VIEW, BE VALIDLY JUSTIFIED, THE COURT HAS DONE ONE OF TWO
THINGS.  EITHER IT HAS, IN THIS SEC. 2(C) CASE, RECOGNIZED AND APPLIED
THE TRUE PURPOSES AND POLICIES UNDERLYING SEC. 2(A), TESTED THE
VALIDITY OF A "COST JUSTIFICATION" DEFENSE IN THIS CASE UNDER THAT
OR IT HAS, DESPITE OUR HOLDING IN SIMPLICITY PATTERN, SUPRA, AND
NOTWITHSTANDING ITS OWN DISCLAIMER, FUSED THE PROVISIONS OF SEC. 2(A)
WITH THOSE OF SEC. 2(C) AND THEREBY WEAKENED MATERIALLY THE PER SE
THRUST WHICH CONGRESS INTENDED THAT SEC. 2(C), WHEN APPLICABLE, WOULD
HAVE. 

IN MY VIEW, SEC. 2(C) IS NOT APPLICABLE TO ANY CASE OF THIS TYPE, FOR
IN SUCH A CASE THERE IS NO PAYMENT OF "BROKERAGE" OR AN "ALLOWANCE OR
DISCOUNT IN LIEU THEREOF" TO THE BUYER, AS I UNDERSTAND THE MEANING OF
THOSE TERMS AS USED IN THE STATUTE.  FOR ME, EVERY CASE PRESENTING THIS
TYPE OF SITUATION IS ACTIONABLE ONLY UNDER SEC. 2(A), FOR IT SEEMS
CLEAR THAT SEC. 2(A), WHICH IS EXPRESSLY CONCERNED WITH DISCRIMINATION
BETWEEN PURCHASERS, WITH EFFECTS ON COMPETITION, AND WITH THE POSSIBLE
EXISTENCE OF TRUE COST SAVINGS, WAS DESIGNED BY CONGRESS TO COVER THIS
TYPE OF CASE.  AND IN A SEC. 2(A) PROCEEDING, THE CHALLENGED PARTY WILL
BE AFFORDED AN OPPORTUNITY TO ESTABLISH THE VALIDITY OF THE PRICE
REDUCTION IN QUESTION - AN OPPORTUNITY NOT AFFORDED UNDER THE TERMS OF
SEC. 2(C).  THE COURT'S ADROIT FOOTWORK IN THIS REGARD SERVES QUITE
EFFECTIVELY TO ILLUSTRATE THE REASONS WHY I THINK THE CASE BEFORE US IS
ONE WHICH CONGRESS INTENDED SHOULD BE ACTIONABLE UNDER SEC. 2(A),
RATHER THAN SEC. 2(C), AND I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS. 

FN1  SECTION 2(C), 15 U.S.C. SEC. 13(C), PROVIDES IN FULL THAT: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, TO PAY OR GRANT, OR TO RECEIVE OR ACCEPT,
ANYTHING OF VALUE AS A COMMISSION, BROKERAGE, OR OTHER COMPENSATION, OR
ANY ALLOWANCE OR DISCOUNT IN LIEU THEREOF, EXCEPT FOR SERVICES RENDERED
IN CONNECTION WITH THE SALE OR PURCHASE OF GOODS, WARES, OR
MERCHANDISE, EITHER TO THE OTHER PARTY TO SUCH TRANSACTION OR TO AN
AGENT, REPRESENTATIVE, OR OTHER INTERMEDIARY THEREIN WHERE SUCH
INTERMEDIARY IS ACTING IN FACT FOR OR IN BEHALF, OR IS SUBJECT TO THE
DIRECT OR INDIRECT CONTROL, OF ANY PARTY TO SUCH TRANSACTION OTHER THAN
THE PERSON BY WHOM SUCH COMPENSATION IS SO GRANTED OR PAID." 

FN2  "AMONG THE PREVALENT MODES OF DISCRIMINATION AT WHICH THIS BILL
IS DIRECTED, IS THE PRACTICE OF CERTAIN LARGE BUYERS TO DEMAND THE
ALLOWANCE OF BROKERAGE DIRECT TO THEM UPON THEIR PURCHASES, OR ITS
PAYMENT TO AN EMPLOYEE, AGENT, OR CORPORATE SUBSIDIARY WHOM THEY SET UP
IN THE GUISE OF A BROKER, AND THROUGH WHOM THEY DEMAND THAT SALES TO
THEM BE MADE.  WHETHER EMPLOYED BY THE BUYER IN GOOD FAITH TO FIND A
SOURCE OF SUPPLY, OR BY THE SELLER TO FIND A MARKET, THE BROKER SO
EMPLOYED DISCHARGES A SOUND ECONOMIC FUNCTION AND IS ENTITLED TO
APPROPRIATE COMPENSATION BY THE ONE IN WHOSE INTEREST HE SO SERVES. 
BUT TO PERMIT ITS PAYMENT OR ALLOWANCE WHERE NO SUCH SERVICE IS
RENDERED, WHERE IN FACT, IF A 'BROKER,' SO LABELED, ENTERS THE PICTURE
AT ALL, IT IS ONE WHOM THE BUYER POINTS OUT TO THE SELLER, RATHER THAN
ONE WHO BRINGS THE BUYER TO THE SELLER, IS BUT TO PERMIT THE CORRUPTION
OF THIS FUNCTION TO THE PURPOSES OF COMPETITIVE DISCRIMINATION.  THE
RELATION OF THE BROKER TO HIS CLIENT IS A FIDUCIARY ONE.  TO COLLECT
FROM A CLIENT FOR SERVICES RENDERED IN THE INTEREST OF A PARTY ADVERSE
TO HIM, IS A VIOLATION OF THAT RELATIONSHIP; AND TO PROTECT THOSE WHO
DEAL IN THE STREAMS OF COMMERCE AGAINST BREACHES OF FAITH IN ITS
RELATIONS OF TRUST, IS TO FOSTER CONFIDENCE IN ITS PROCESSES AND
PROMOTE ITS WHOLESOMENESS AND VOLUME."  S. REP. NO. 1502, 74TH CONG.,
2D SESS., P. 7.  SEE ALSO H.R. REP.  NO. 2287, 74TH CONG., 2D SESS.,
PP. 14-15. 

FN3  "SECTION (C) PERMITS THE PAYMENT OF COMPENSATION BY A SELLER TO
HIS BROKER OR AGENT FOR SERVICES ACTUALLY RENDERED IN HIS BEHALF:
LIKEWISE BY A BUYER TO HIS BROKER OR AGENT FOR SERVICES IN CONNECTION
WITH THE PURCHASE OF GOODS ACTUALLY RENDERED IN HIS BEHALF; BUT IT
PROHIBITS THE DIRECT OR INDIRECT PAYMENT OF BROKERAGE EXCEPT FOR SUCH
SERVICES RENDERED.  IT PROHIBITS ITS ALLOWANCE BY THE BUYER DIRECT TO
THE SELLER, OR BY THE SELLER DIRECT TO THE BUYER; AND IT PROHIBITS ITS
PAYMENT BY EITHER TO AN AGENT OR INTERMEDIARY ACTING IN FACT FOR OR IN
BEHALF, OR SUBJECT TO THE DIRECT OR INDIRECT CONTROL, OF THE OTHER." 
H.R. REP. NO. 2287, 74TH CONG., 2D SESS., P. 15.  SEE ALSO THE
CONFERENCE COMMITTEE REPORT, H.R. CONF. REP. NO. 2951, 74TH CONG., 2D
SESS., P. 7. 

FN4  AS STATED BY SENATOR LOGAN ON THE SENATE FLOOR: 

"THE BILL HAS NOTHING TO DO WITH BROKERAGE AT ALL.  THE BILL DEALS
WITH SCHEMES AND SHAMS USED TO BRING ABOUT DISCRIMINATIONS IN PRICES
...  .  A LEGITIMATE BROKER CAN CHARGE WHATEVER HIS EMPLOYER MAY BE
WILLING TO PAY WITHOUT THE VIOLATION OF ANY PROVISIONS OF THE PROPOSED
ACT."  80 CONG. REC. 3118. 

     *         *         *     *         * 

"I SHALL NOW SPEAK OF THE MATTER OF BROKERAGE.  LET ME SAY IN THE
BEGINNING THAT THE BILL DOES NOT AFFECT LEGITIMATE BROKERAGE EITHER
DIRECTLY OR INDIRECTLY.  WHERE THE BROKER RENDERS SERVICE TO THE BUYER
OR TO THE SELLER THE BILL DOES NOT PROHIBIT THE PAYMENT OF BROKERAGE. 
IT IS NOT AIMED AT THE LEGITIMATE PRACTICE OF BROKERAGE, BECAUSE
BROKERAGE IS NECESSARY.  THE BROKER HAS A FIELD ALL HIS OWN AND HE
SHOULD NOT BE INTERFERED WITH."  80 CONG. REC. 6281. 

FN5  SEE BIDDLE PURCHASING CO. V. FEDERAL TRADE COMM'N, 96 F.2D 687
(C.A.2D CIR.); OLIVER BROS., INC., V. FEDERAL TRADE COMM'N, 102 F.2D
763 (C.A. 4TH CIR.). 

FN6  SEE GREAT ATLANTIC & PACIFIC TEA CO. V. FEDERAL TRADE COMM'N,
106 F.2D 667 (C.A. 3D CIR.), AND SOUTHGATE BROKERAGE CO. V. FEDERAL
TRADE COMM'N, 150 F.2D 607 (C.A. 4TH CIR.), IN WHICH THE BUYER CLAIMED
TO HAVE EFFECTED A "SAVING" IN DISTRIBUTION COSTS FOR THE SELLER
BECAUSE OF SERVICES PERFORMED BY THE BUYER'S PURCHASING ORGANIZATION. 
SUCH CASES MUST BE DISTINGUISHED FROM THOSE IN WHICH THE NATURE OF THE
SELLER'S OWN OPERATION, WITHOUT MORE, ENABLES IT TO EFFECT LEGITIMATE
SAVINGS IN BROKERAGE AND OTHER DISTRIBUTION COSTS. 

FN7  SEE, E.G., REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE
TO STUDY THE ANTITRUST LAWS (1955) 190-191; OPPENHEIM, FEDERAL
ANTITRUST LEGISLATION:  GUIDEPOSTS TO A REVISED NATIONAL ANTITRUST
POLICY, 50 MICH. L. REV. 1139, 1207, N. 178. 

FN8  SEE NOTE 4. 

FN9  SECTION 2(A) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON
PATMAN ACT, 15 U.S.C. SEC. 13(A), PROVIDES, IN PERTINENT PART: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY  ...  WHERE 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 CONTAINED IN SECTIONS 12, 13, 14-21, AND 22-27 OF THIS TITLE
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  ...  ." 

FN10  THE COMMISSION HAS EXPRESSED SUCH A VIEW IN SEVERAL EARLY
PROCEEDINGS, SEE, E.G., ALBERT W. SISK & SON, 31 F.T.C. 1543 (1940);
C.F. UNRUH BROKERAGE CO., 31 F.T.C. 1557 (1940); W.E.  ROBINSON & CO.,
32 F.T.C. 370 (1941); RAMSDELL PACKING CO., 32 F.T.C. 1187 (1941);
CUSTOM HOUSE PACKING CORP., 43 F.T.C. 164 (1946), BUT THAT VIEW IS IN
CONFLICT WITH THE TERMS OF SEC. 2(C) AND DOES NOT ACCORD WITH THE
CONGRESSIONAL INTENT. 

FN11  WHEN SEC. 2(A) EMERGED FROM THE SENATE COMMITTEE, THE "COST
JUSTIFICATION" PROVISO CONTAINED AN ADDITION TO THE CLAUSE, PERMITTING:
"  ...  DIFFERENTIALS WHICH MAKE ONLY DUE ALLOWANCE FOR DIFFERENCES IN
THE COST, OTHER THAN BROKERAGE, OF MANUFACTURE, SALE, OR DELIVERY
RESULTING FROM THE DIFFERING METHODS OR QUANTITIES IN WHICH SUCH
COMMODITIES ARE TO SUCH PURCHASERS SOLD OR DELIVERED ...  ." 

THIS ADDITION WAS EXPLAINED AS HAVING BEEN DEEMED NECESSARY "TO
HARMONIZE THIS SUBSECTION WITH SUBSECTION (C) CONSIDERED BELOW, WHICH
DEALS DIRECTLY WITH THE QUESTION OF BROKERAGE."  S. REP. NO. 1502, 74TH
CONG., 2D SESS., P. 5. 

IN DISCUSSION ON THE SENATE FLOOR WITH RESPECT TO THIS ADDITION,
SENATOR LOGAN COMMENTED: 

"I THINK PERHAPS LEGITIMATE BROKERAGE OUGHT TO BE ALLOWED AS A PART
OF THE COSTS; AND I THINK WHEN THE BILL WAS DRAFTED - I DID NOT WRITE
THE BILL - PERHAPS IN THE AMENDMENT WHICH WAS INSERTED BY THE JUDICIARY
COMMITTEE OF THE SENATE WE HAD IN MIND DUMMY BROKERAGE, SHAM
BROKERAGE.  IT MAY BE THAT SOMETHING SHOULD BE DONE ABOUT THAT.  I CALL
IT TO THE ATTENTION OF THE SENATE, SO THAT SOME OF THE OTHER SENATORS
MAY CONSIDER IT."  80 CONG. REC. 6285. 

THE CONFERENCE COMMITTEE THEN DELETED THE PHRASE "OTHER THAN
BROKERAGE" FROM THE PROVISO, "FOR THE REASON THAT THE MATTER OF
BROKERAGE IS DEALT WITH IN A SUBSEQUENT SUBSECTION OF THE BILL."  H.R.
CONF. REP. NO. 2951, 74TH CONG., 2D SESS., P. 6. 

IN VIEW OF THE MEANING OF "BROKERAGE" AS USED IN SEC. 2(C) AND THE
ELIMINATION OF THE PHRASE "OTHER THAN BROKERAGE" FROM THE "COST
JUSTIFICATION" PROVISO, IT SEEMS CLEAR TO ME THAT A REDUCTION IN PRICE
BASED ON SAVINGS IN LEGITIMATE BROKERAGE COSTS IS AMONG THE REDUCTIONS
WHICH CONGRESS INTENDED MIGHT BE VALIDLY JUSTIFIED UNDER THE SEC. 2(A)
PROVISO. 

FN12  I INTIMATE NO VIEW ON WHETHER A VALID "COST JUSTIFICATION"
DEFENSE WOULD BE AVAILABLE IN A SEC. 2(A) PROCEEDING ON THE FACTS OF
THIS CASE. 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT HAS RECENTLY RECOGNIZED
THE FUNDAMENTAL DIFFERENCES BETWEEN SEC. 2(A) AND SEC. 2(C), DISCUSSED
HERE.  ROBINSON V. STANLEY HOME PRODUCTS, INC., 272 F.2D 601.  SEE
GENERALLY, NOTE, 57 MICH. L. REV. 926. 

OF COURSE, SEC. 2(F) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON
PATMAN ACT, 15 U.S.C. SEC. 13(F), WHICH MAKES IT "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," MAY BE APPLICABLE IN A PROCEEDING AGAINST THE BUYER. 
..END :












KRESHIK V. ST. NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHODOX CHURCH OF
NORTH AMERICA 363 U.S. 190 


NO. 824.  DECIDED JUNE 6, 1960.  - 7 N.Y.2D 191, 164 N.E.2D 687,
REVERSED. 


CERTIORARI IS GRANTED AND A DECISION OF THE COURT OF APPEALS OF NEW
YORK, HOLDING THAT, UNDER THE COMMON LAW OF NEW YORK, PETITIONERS, AS
THE APPOINTEES OF THE PATRIARCH OF MOSCOW, MAY NOT EXERCISE THE RIGHT
CONFERRED UNDER CANON LAW TO USE AND OCCUPY ST. NICHOLAS CATHEDRAL OF
THE RUSSIAN ORTHODOX CHURCH IN NEW YORK CITY, IS REVERSED ON THE
AUTHORITY OF KEDROFF V. ST. NICHOLAS CATHEDRAL, 344 U.S. 94, SINCE THE
CONSTITUTIONAL PRINCIPLES THERE APPLIED FORBID THE JUDICIARY, AS WELL
AS THE LEGISLATURE, OF A STATE TO INTERFERE WITH THE FREE EXERCISE OF
RELIGION.  PP. 190-191. 

KRESHIK ET AL. V. SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHODOX
CHURCH OF NORTH AMERICA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW
YORK. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED UPON THE RECORD IN NO. 3, OCTOBER
TERM, 1952, AND THE PETITION FOR CERTIORARI, ARE GRANTED. 

IN A PRIOR DECISION IN THIS LITIGATION, WE HELD THAT THE RIGHT
CONFERRED UNDER CANON LAW UPON THE ARCHBISHOP OF THE NORTH AMERICAN
ARCHDIOCESE OF THE RUSSIAN ORTHODOX GREEK CATHOLIC CHURCH, AS THE
APPOINTEE OF THE PATRIARCH OF MOSCOW, TO THE USE AND OCCUPANCY OF THE
ST. NICHOLAS CATHEDRAL IN NEW YORK CITY, OWNED BY RESPONDENT
CORPORATION, WAS "STRICTLY A MATTER OF ECCLESIASTICAL GOVERNMENT," AND
AS SUCH COULD NOT CONSTITUTIONALLY BE IMPAIRED BY A STATE STATUTE, NEW
YORK RELIGIOUS CORPORATIONS LAW, ART. 5-C, PURPORTING TO BESTOW THAT
RIGHT ON ANOTHER.  KEDROFF V. ST. NICHOLAS CATHEDRAL, 344 U.S. 94.  WE
REVERSED A JUDGMENT OF THE NEW YORK COURT OF APPEALS AGAINST THE
PETITIONER'S PREDECESSORS IN OFFICC, AND REMANDED THE CASE FOR "FURTHER
ACTION ...  NOT IN CONTRAVENTION" OF OUR OPINION.  ID., AT 121. 

THE COURT OF APPEALS ORDERED A RETRIAL OF THE QUESTION OF
PETITIONERS' RIGHT TO USE AND OCCUPANCY, ON A COMMON-LAW ISSUE
ASSERTEDLY LEFT OPEN BY OUR INVALIDATION OF THE STATUTORY BASIS FOR THE
FORMER DECISION.  306 N.Y. 38, 114 N.E.2D 197.  AFTER TRIAL, THE COURT
OF APPEALS DIRECTED THE ENTRY OF JUDGMENT AGAINST PETITIONERS, HOLDING
THAT, BY REASON OF THE DOMINATION - SO FOUND BY THAT COURT TO BE THE
FACT - OF THE PATRIARCH BY THE SECULAR AUTHORITY IN THE U.S.S.R., HIS
APPOINTEE COULD NOT UNDER THE COMMON LAW OF NEW YORK VALIDLY EXERCISE
THE RIGHT TO OCCUPY THE CATHEDRAL.  7 N.Y.2D 191, 164 N.E.2D 687. 

AS THE OPINIONS OF THE COURT OF APPEALS MAKE EVIDENT, COMPARE 302
N.Y., AT 29-33, 96 N.E.2D, AT 72-74, WITH 7 N.Y.2D, AT 209-216, 164
N.E.2D, AT 696-700, THE DECISION NOW UNDER REVIEW RESTS ON THE SAME
PREMISES WHICH WERE FOUND TO HAVE UNDERLAIN THE ENACTMENT OF THE
STATUTE STRUCK DOWN IN KEDROFF.  344 U.S., AT 117-118.  BUT IT IS
ESTABLISHED DOCTRINE THAT "IT IS NOT OF MOMENT THAT THE STATE HAS HERE
ACTED SOLELY THROUGH ITS JUDICIAL BRANCH, FOR WHETHER LEGISLATIVE OR
JUDICIAL, IT IS STILL THE APPLICATION OF STATE POWER WHICH WE ARE ASKED
TO SCRUTINIZE."  N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 463.  SEE SHELLEY
V. KRAEMER, 334 U.S. 1, 14-16, AND CASES THERE CITED.  ACCORDINGLY, OUR
RULING IN KEDROFF IS CONTROLLING HERE, AND REQUIRES DISMISSAL OF THE
COMPLAINT.  REVERSED. 
..END :











DOUGLAS V. GREEN 363 U.S. 192 


NO. 438, MISC.  DECIDED JUNE 6, 1960.  - JUDGMENT REVERSED AND CAUSE
REMANDED. 


IN PETITIONER'S APPLICATION TO A FEDERAL DISTRICT COURT FOR A WRIT OF
HABEAS CORPUS, HIS ALLEGATION THAT THE SUPREME COURT OF OHIO DID NOT
PROVIDE HIM, AS AN INDIGENT CRIMINAL DEFENDANT, WITH AN ADEQUATE REMEDY
FOR THE PROSECUTION OF AN APPEAL FROM HIS CONVICTION WITHOUT PAYMENT OF
DOCKET FEES, MADE OUT A CASE OF DENIAL OF EQUAL PROTECTION OF THE
LAWS.  THEREFORE, CERTIORARI IS GRANTED, THE JUDGMENT DENYING A WRIT OF
HABEAS CORPUS IS REVERSED, AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN THE LIGHT OF BURNS V. OHIO, 360 U.S.
252.  PP. 192-193. 

DOUGLAS V. GREEN, SUPERINTENDENT, MARION CORRECTIONAL INSTITUTION. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
PETITION FOR A WRIT OF CERTIORARI IS ALSO GRANTED.  PETITIONER, A
PRISONER IN AN OHIO PENITENTIARY, FILED AN APPLICATION FOR A WRIT OF
HABEAS CORPUS IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO. 
AMONG OTHER CLAIMS, THE PETITIONER ALLEGED THAT THE OHIO SUPREME COURT
DID NOT PROVIDE HIM, AS AN INDIGENT CRIMINAL DEFENDANT, AN ADEQUATE
REMEDY FOR THE PROSECUTION OF AN APPEAL FROM HIS CONVICTION WITHOUT
PAYMENT OF DOCKET FEES.  THIS DEFICIENCY WAS URGED, AS WE READ THIS LAY
PETITIONER'S INFORMAL PRO SE APPLICATION FOR THE WRIT, AS A VIOLATION
OF THE FEDERAL CONSTITUTION'S GUARANTEE OF THE EQUAL PROTECTION OF THE
LAWS.  SEE BURNS V. OHIO, 360 U.S. 252.  THE WRIT OF HABEAS CORPUS WAS
IN EFFECT DENIED BY THE DISTRICT COURT, THAT COURT DENYING PETITIONER,
FOR WANT OF MERIT, LEAVE TO PROCEED IN FORMA PAUPERIS BEFORE IT.  THE
DISTRICT COURT FURTHER DENIED A MOTION FOR LEAVE TO APPEAL IN FORMA
PAUPERIS AND THE COURT OF APPEALS SUSTAINED THIS ACTION ON THE RENEWAL
OF THE MOTION BEFORE IT. 

WE HOLD THAT PETITIONER'S ALLEGATIONS IN THE APPLICATION FOR THE WRIT
MADE OUT A CASE OF DEPRIVATION OF HIS CONSTITUTIONAL RIGHT TO THE EQUAL
PROTECTION OF THE LAWS BY OHIO IN RESPECT TO HIS APPEAL FROM THE
CONVICTION IN THE CRIMINAL PROSECUTION AGAINST HIM.  CLEARLY FEDERAL
HABEAS CORPUS IS AN APPROPRIATE REMEDY UNDER THESE CIRCUMSTANCES.  SEE
JOHNSON V. ZERBST, 304 U.S. 458, 467-468; BURNS V. OHIO, SUPRA, AT 262
(DISSENTING OPINION).  IN VIEW OF OUR DECISION IN BURNS AS TO THE
VALIDITY OF THE FORMER OHIO PRACTICE, AND OHIO'S CONFORMANCE, AS WE ARE
ADVISED, TO THE REQUIREMENTS OF THAT DECISION, WE THINK THAT THE
DISTRICT COURT SHOULD SUSPEND A HEARING ON THE WRIT FOR A REASONABLE
TIME TO ALLOW PETITIONER TO REAPPLY TO THE OHIO SUPREME COURT FOR
CONSIDERATION OF HIS APPEAL.  UPON THAT COURT'S ACTION THEREON, THE
DISTRICT COURT SHOULD PROCEED, UPON HEARING, TO MAKE SUCH APPROPRIATE
ORDER IN THE PREMISES, AS UNDER THE CIRCUMSTANCES "LAW AND JUSTICE
REQUIRE."  28 U.S.C. SEC. 2243.  IT MAY AT THAT TIME CONSIDER, IN THE
POSTURE IN WHICH THE CASE THEN STANDS, PETITIONER'S OTHER CLAIMS AS TO
THE CONSTITUTIONAL ADEQUACY OF OHIO'S APPELLATE PROCEDURE IN RESPECT OF
HIS ORIGINAL CONVICTION AND HIS APPLICATION FOR STATE COLLATERAL
RELIEF.  TO THIS END, THE JUDGMENT IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











UNITED STATES V. LOUISIANA 363 U.S. 1 


NO. 10, ORIGINAL.  ARGUED OCTOBER 12-15, 1959.  - DECIDED MAY 31, 1960. 


INVOKING THE ORIGINAL JURISDICTION OF THIS COURT UNDER ART. III, SEC.
2 OF THE CONSTITUTION, THE UNITED STATES BROUGHT SUIT AGAINST THE
STATES OF LOUISIANA, TEXAS, MISSISSIPPI, ALABAMA AND FLORIDA, SEEKING A
DECLARATION THAT IT IS ENTITLED TO EXCLUSIVE POSSESSION OF, AND FULL
DOMINION AND POWER OVER, THE LANDS, MINERALS AND OTHER NATURAL
RESOURCES UNDERLYING THE WATERS OF THE GULF OF MEXICO MORE THAN THREE
GEOGRAPHICAL MILES SEAWARD FROM THE COAST OF EACH STATE AND EXTENDING
TO THE EDGE OF THE CONTINENTAL SHELF.  IT ALSO ASKED THAT THE STATES BE
ENJOINED FROM INTERFERING WITH THE RIGHTS OF THE UNITED STATES IN THAT
AREA AND THAT THEY BE REQUIRED TO ACCOUNT FOR ALL SUMS OF MONEY DERIVED
BY THEM THEREFROM SINCE JUNE 5, 1950.  HELD: 

1.  THE SUBMERGED LANDS ACT GRANTS TO EACH COASTAL STATE THE
OWNERSHIP OF SUBMERGED LANDS WITHIN THREE GEOGRAPHICAL MILES FROM ITS
COAST; BUT NO BOUNDARY IN EXCESS OF THREE MILES WAS FIXED IPSO FACTO
FOR ANY STATE.  PP. 13, 20-25. 

2.  THE ACT PRESERVED THE RIGHT OF EACH GULF STATE TO PROVE
BOUNDARIES EXTENDING MORE THAN THREE GEOGRAPHICAL MILES (BUT NOT MORE
THAN THREE MARINE LEAGUES) INTO THE GULF; BUT EACH STATE MUST ESTABLISH
THE EXISTENCE OF SUCH A BOUNDARY IN JUDICIAL PROCEEDINGS.  PP. 25-26. 

3.  TO SATISFY THE REQUIREMENTS OF THE ACT, A STATE'S SEAWARD
BOUNDARY BEYOND THREE GEOGRAPHICAL MILES FROM ITS COAST MUST BE ONE
WHICH, BY VIRTUE OF CONGRESSIONAL ACTION, WOULD HAVE BEEN LEGALLY
EFFECTIVE TO CARRY, AS BETWEEN THE STATE AND THE NATION, SUBMERGED LAND
RIGHTS UNDER THE DOCTRINE OF POLLARD'S LESSEE V. HAGAN, 3 HOW.  212, AS
CONGRESS CONCEIVED THAT RULE TO HAVE BEEN PRIOR TO THIS COURT'S
DECISION IN UNITED STATES V. CALIFORNIA, 332 U.S. 19.  THE MERE
EXISTENCE OF SUCH A BOUNDARY PRIOR TO THE TIME THE STATE WAS ADMITTED
TO THE UNION IS NOT ALONE SUFFICIENT.  PP. 24-36. 

4.  THE FACT THAT, IN THE FIELD OF FOREIGN RELATIONS, THE POLICY OF
THE EXECUTIVE BRANCH OF THE GOVERNMENT MAY HAVE BEEN TO REFUSE TO
ASSERT TERRITORIAL JURISDICTION MORE THAN THREE MILES FROM SHORE WOULD
NOT IMPAIR THE EFFECTIVENESS OF A STATE'S SEAWARD BOUNDARY FIXED BY
CONGRESS MORE THAN THREE MILES FROM SHORE, SO FAR AS THE PURELY
DOMESTIC PURPOSES OF THE SUBMERGED LANDS ACT ARE CONCERNED.  PP. 30
36. 

5.  TEXAS HAVING CLAIMED A MARITIME BOUNDARY AT THREE MARINE LEAGUES
FROM HER COAST WHEN SHE WAS AN INDEPENDENT REPUBLIC PRIOR TO ADMISSION
TO THE UNION, AND THIS BOUNDARY HAVING BEEN CONFIRMED PURSUANT TO THE
ANNEXATION RESOLUTION OF 1845, TEXAS IS ENTITLED UNDER THE SUBMERGED
LANDS ACT TO A GRANT OF THREE MARINE LEAGUES FROM HER COAST FOR
DOMESTIC PURPOSES.  PP. 36-65. 

6.  LOUISIANA IS ENTITLED TO SUBMERGED-LAND RIGHTS TO A DISTANCE NO
GREATER THAN THREE GEOGRAPHICAL MILES FROM ITS COASTLINES, WHEREVER
THOSE LINES MAY ULTIMATELY BE SHOWN TO BE.  PP. 66-79. 

7.  MISSISSIPPI IS NOT ENTITLED TO RIGHTS IN SUBMERGED LANDS LYING
BEYOND THREE GEOGRAPHICAL MILES FROM ITS COAST.  PP. 79-82. 

8.  ALABAMA IS NOT ENTITLED TO RIGHTS IN SUBMERGED LANDS LYING BEYOND
THREE GEOGRAPHICAL MILES FROM ITS COAST.  P. 82. 

9.  AS TO THE STATES OF LOUISIANA, MISSISSIPPI AND ALABAMA, A DECREE
WILL BE ENTERED (1) DECLARING THAT THE UNITED STATES IS ENTITLED, AS
AGAINST THESE STATES, TO ALL THE LANDS, MINERALS AND OTHER NATURAL
RESOURCES UNDERLYING THE GULF OF MEXICO MORE THAN THREE GEOGRAPHICAL
MILES FROM THE COAST OF EACH SUCH STATE, THAT IS, FROM THE LINE OF
ORDINARY LOW-WATER MARK AND OUTER LIMIT OF INLAND WATERS, AND EXTENDING
SEAWARD TO THE EDGE OF THE CONTINENTAL SHELF; (2) DECLARING THAT NONE
OF THESE STATES IS ENTITLED TO ANY INTEREST IN SUCH LANDS, MINERALS AND
RESOURCES; (3) ENJOINING THESE STATES FROM INTERFERING WITH THE RIGHTS
OF THE UNITED STATES THEREIN; (4) DIRECTING EACH SUCH STATE
APPROPRIATELY TO ACCOUNT TO THE UNITED STATES FOR ALL SUMS OF MONEY
DERIVED THEREFROM SUBSEQUENT TO JUNE 5, 1950; AND (5) DISMISSING
ALABAMA'S CROSS BILL.  P. 83. 

10.  AS TO THE STATE OF TEXAS, A DECREE WILL BE ENTERED (1) DECLARING
THAT THE STATE IS ENTITLED, AS AGAINST THE UNITED STATES, TO THE LANDS,
MINERALS AND OTHER NATURAL RESOURCES UNDERLYING THE GULF OF MEXICO TO A
DISTANCE OF THREE MARINE LEAGUES FROM TEXAS' COAST, THAT IS, FROM THE
LINE OF ORDINARY LOW-WATER MARK AND OUTER LIMIT OF INLAND WATERS; (2)
DECLARING THAT THE UNITED STATES IS ENTITLED, AS AGAINST TEXAS, TO NO
INTEREST THEREIN; (3) DECLARING THAT THE UNITED STATES IS ENTITLED, AS
AGAINST TEXAS, TO ALL SUCH LANDS, MINERALS AND RESOURCES LYING BEYOND
THAT AREA AND EXTENDING TO THE EDGE OF THE CONTINENTAL SHELF; (4)
ENJOINING THE STATE FROM INTERFERING WITH THE RIGHTS OF THE UNITED
STATES THEREIN; AND (5) DIRECTING TEXAS APPROPRIATELY TO ACCOUNT TO THE
UNITED STATES FOR ALL SUMS OF MONEY DERIVED SINCE JUNE 5, 1950, FROM
THE AREA TO WHICH THE UNITED STATES IS DECLARED TO BE ENTITLED.  P.
84. 

11.  JURISDICTION IS RETAINED FOR SUCH FURTHER PROCEEDINGS AS MAY BE
NECESSARY TO EFFECTUATE THE RIGHTS HEREIN ADJUDICATED.  P. 84. 

12.  THE MOTIONS OF LOUISIANA AND MISSISSIPPI TO TAKE DEPOSITIONS ARE
DENIED, WITHOUT PREJUDICE TO THEIR RENEWAL IN SUCH FURTHER PROCEEDINGS
AS MAY BE HAD IN CONNECTION WITH MATTERS LEFT OPEN BY THIS OPINION. 
PP. 84-85. 

13.  THE SAME DISPOSITION IS MADE OF THE SIMILAR AVERMENT IN
ALABAMA'S ANSWER.  P. 84, N. 142. 

14.  TEXAS' MOTION FOR SIMILAR RELIEF AND FOR A SEVERANCE IS RENDERED
MOOT BY THE DECISION AS TO IT.  P. 84, N. 142. 

15.  THE ALTERNATIVE MOTION OF LOUISIANA, CONTAINED IN ITS ANSWER TO
THE ORIGINAL COMPLAINT, TO TRANSFER THE CASE AS TO IT TO THE UNITED
STATES DISTRICT COURT IN LOUISIANA IS DENIED.  P. 85, N. 143. 

UNITED STATES V. LOUISIANA ET AL. 

ON MOTION FOR JUDGMENT ON THE PLEADINGS. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES, INVOKING OUR ORIGINAL JURISDICTION UNDER ART. III,
SEC. 2, OF THE CONSTITUTION, BROUGHT THIS SUIT AGAINST THE STATES OF
LOUISIANA, TEXAS, MISSISSIPPI, ALABAMA, AND FLORIDA, SEEKING A
DECLARATION THAT IT IS ENTITLED TO EXCLUSIVE POSSESSION OF, AND FULL
DOMINION AND POWER OVER, THE LANDS, MINERALS, AND OTHER NATURAL
RESOURCES UNDERLYING THE WATERS OF THE GULF OF MEXICO MORE THAN THREE
GEOGRAPHICAL MILES SEAWARD FROM THE COAST OF EACH STATE AND EXTENDING
TO THE EDGE OF THE CONTINENTAL SHELF.  (FN1)  THE COMPLAINT ALSO ASKS
THAT THE STATES BE ENJOINED FROM INTERFERING WITH THE RIGHTS OF THE
UNITED STATES IN THAT AREA, AND THAT THEY BE REQUIRED TO ACCOUNT FOR
ALL SUMS OF MONEY DERIVED BY THEM THEREFROM SINCE JUNE 5, 1950.  (FN2)
THE CASE IS NOW BEFORE US ON THE MOTIONS OF THE UNITED STATES FOR
JUDGMENT ON THE PLEADINGS AND FOR DISMISSAL OF ALABAMA'S CROSS BILL
SEEKING TO ESTABLISH ITS RIGHTS TO SUCH SUBMERGED LANDS AND RESOURCES
WITHIN THREE MARINE LEAGUES OF ITS COAST. 

THE CONTROVERSY IS ANOTHER PHASE OF THE MORE THAN 20 YEARS' DISPUTE
BETWEEN THE COASTAL STATES AND THE FEDERAL GOVERNMENT OVER THEIR
RESPECTIVE RIGHTS TO EXPLOIT THE OIL AND OTHER NATURAL RESOURCES OF
OFFSHORE SUBMERGED LANDS.  IN 1947 THIS COURT HELD THAT, AS AGAINST
CALIFORNIA, THE UNITED STATES POSSESSED PARAMOUNT RIGHTS IN SUCH LANDS
UNDERLYING THE PACIFIC OCEAN SEAWARD OF THE LOW-WATER MARK ON THE COAST
OF CALIFORNIA AND OUTSIDE OF INLAND WATERS.  UNITED STATES V.
CALIFORNIA, 332 U.S. 19, 804.  AND ON JUNE 5, 1950, THE COURT,
FOLLOWING THE PRINCIPLES ANNOUNCED IN THE CALIFORNIA CASE, MADE LIKE
HOLDINGS WITH RESPECT TO SUBMERGED LANDS IN THE GULF OF MEXICO
SIMILARLY LYING OFF THE COASTS OF LOUISIANA AND TEXAS, AND DIRECTED
BOTH STATES TO ACCOUNT TO THE UNITED STATES FOR ALL SUMS DERIVED FROM
NATURAL RESOURCES IN THOSE AREAS AFTER THAT DATE.  UNITED STATES V.
LOUISIANA, 339 U.S. 699, 340 U.S. 899; UNITED STATES V. TEXAS, 339 U.S.
707, 340 U.S. 900.  (FN3)

ON MAY 22, 1953, CONGRESS, FOLLOWING EARLIER REPEATED UNSUCCESSFUL
ATTEMPTS AT LEGISLATION DEALING WITH STATE AND FEDERAL RIGHTS IN
SUBMERGED LANDS, (FN4) PASSED THE SUBMERGED LANDS ACT, 67 STAT. 29, 43
U.S.C. SECS. 1301-1315.  BY THAT ACT THE UNITED STATES RELINQUISHED TO
THE COASTAL STATES ALL OF ITS RIGHTS IN SUCH LANDS WITHIN CERTAIN
GEOGRAPHICAL LIMITS, AND CONFIRMED ITS OWN RIGHTS THEREIN BEYOND THOSE
LIMITS.  THE ACT WAS SUSTAINED IN ALABAMA V. TEXAS, 347 U.S. 272, AS A
CONSTITUTIONAL EXERCISE OF CONGRESS' POWER TO DISPOSE OF FEDERAL
PROPERTY, CONST. ART. IV, SEC. 3, CL. 2.  SINCE THE ACT CONCEDEDLY DID
NOT IMPAIR THE VALIDITY OF THE CALIFORNIA, LOUISIANA, AND TEXAS CASES,
WHICH ARE ADMITTEDLY APPLICABLE TO ALL COASTAL STATES, THIS CASE DRAWS
IN QUESTION ONLY THE GEOGRAPHIC EXTENT TO WHICH THE STATUTE CEDED TO
THE STATES THE FEDERAL RIGHTS ESTABLISHED BY THOSE DECISIONS. 

THE PURPOSES OF THE SUBMERGED LANDS ACT ARE DESCRIBED IN ITS TITLE AS
FOLLOWS: 

"TO CONFIRM AND ESTABLISH THE TITLES OF THE STATES TO LANDS BENEATH
NAVIGABLE WATERS WITHIN STATE BOUNDARIES AND TO THE NATURAL RESOURCES
WITHIN SUCH LANDS AND WATERS, TO PROVIDE FOR THE USE AND CONTROL OF
SAID LANDS AND RESOURCES, AND TO CONFIRM THE JURISDICTION AND CONTROL
OF THE UNITED STATES OVER THE NATURAL RESOURCES OF THE SEABED OF THE
CONTINENTAL SHELF SEAWARD OF STATE BOUNDARIES." 

TO EFFECTUATE THESE PURPOSES THE ACT, IN PERTINENT PART: 

1.  RELINQUISHES TO THE STATES THE ENTIRE INTEREST OF THE UNITED
STATES IN ALL LANDS BENEATH NAVIGABLE WATERS WITHIN STATE BOUNDARIES
(SEC. 3, 43 U.S.C. SEC. 1311):  (FN5) 

2.  DEFINES THAT AREA IN TERMS OF STATE BOUNDARIES "AS THEY EXISTED
AT THE TIME A STATE BECAME A MEMBER OF THE UNION, OR AS HERETOFORE
APPROVED BY THE CONGRESS," NOT EXTENDING, HOWEVER, SEAWARD FROM THE
COAST OF ANY STATE MORE THAN THREE MARINE LEAGUES (FN6) IN THE GULF OF
MEXICO OR MORE THAN THREE GEOGRAPHICAL MILES IN THE ATLANTIC AND
PACIFIC OCEANS (SEC. 2, 43 U.S.C. SEC.  1301):  (FN7) 

3.  CONFIRMS TO EACH STATE A SEAWARD BOUNDARY OF THREE GEOGRAPHICAL
MILES, WITHOUT "QUESTIONING OR IN ANY MANNER PREJUDICING THE EXISTENCE
OF ANY STATE'S SEAWARD BOUNDARY BEYOND THREE GEOGRAPHICAL MILES IF IT
WAS SO PROVIDED BY ITS CONSTITUTION OR LAWS PRIOR TO OR AT THE TIME
SUCH STATE BECAME A MEMBER OF THE UNION, OR IF IT HAS BEEN HERETOFORE
APPROVED BY CONGRESS" (SEC. 4, 43 U.S.C. SEC. 1312); (FN8) AND: 

4.  FOR PURPOSES OF COMMERCE, NAVIGATION, NATIONAL DEFENSE, AND
INTERNATIONAL AFFAIRS, RESERVES TO THE UNITED STATES ALL CONSTITUTIONAL
POWERS OF REGULATION AND CONTROL OVER THE AREAS WITHIN WHICH THE
PROPRIETARY INTERESTS OF THE STATES ARE RECOGNIZED (SEC. 6(A), 43
U.S.C. SEC.  1314); (FN9) AND RETAINS IN THE UNITED STATES ALL RIGHTS
IN SUBMERGED LANDS LYING BEYOND THOSE AREAS TO THE SEAWARD LIMITS OF
THE CONTINENTAL SHELF (SEC. 9, 43 U.S.C. SEC. 1302).  (FN10) 

THE UNITED STATES CONCEDES THAT THE STATUTE GRANTS TO EACH OF THE
DEFENDANT STATES SUBMERGED LAND RIGHTS IN THE GULF OF MEXICO TO THE
EXTENT OF THREE GEOGRAPHICAL MILES, BUT CONTENDS THAT NONE OF THEM IS
ENTITLED TO ANYTHING MORE.  THE STATES, CONCEDING THAT THREE LEAGUES IS
THE LIMIT OF THE STATUTE'S GRANT IN THE GULF, CONTEND THAT EACH OF THEM
IS ENTITLED TO THAT MUCH.  THE WIDE-RANGING ARGUMENTS OF THE PARTIES,
REFLECTING NO DOUBT THE MAGNITUDE OF THE ECONOMIC INTERESTS AT STAKE,
(FN11) CAN BE REDUCED TO THE FOLLOWING BASIC CONTENTIONS: 

THE GOVERNMENT STARTS WITH THE PREMISE THAT THE ACT GRANTS SUBMERGED
LAND RIGHTS TO A DISTANCE OF MORE THAN THREE MILES ONLY TO THE EXTENT
THAT A GULF STATE CAN SHOW, IN ACCORDANCE WITH SEC. 2(B) OF THE ACT,
EITHER THAT IT HAD A LEGALLY ESTABLISHED SEAWARD BOUNDARY IN EXCESS OF
THREE MILES AT THE TIME OF ITS ADMISSION TO THE UNION, OR THAT SUCH A
BOUNDARY WAS THEREAFTER APPROVED FOR IT BY CONGRESS PRIOR TO THE
PASSAGE OF THE SUBMERGED LANDS ACT.  IT IS CONTENDED THAT THE ACT DID
NOT PURPORT TO DETERMINE, FIX, OR CHANGE THE BOUNDARY OF ANY STATE, BUT
LEFT IT TO THE COURTS TO ASCERTAIN WHETHER A PARTICULAR STATE HAD A
SEAWARD BOUNDARY MEETING EITHER OF THESE REQUIREMENTS.  THE GOVERNMENT
THEN URGES, AS TO ANY STATE RELYING ON ITS ORIGINAL SEAWARD BOUNDARY,
THAT THE ACT CONTEMPLATES AS THE MEASURE OF THE GRANT A BOUNDARY WHICH
EXISTED SUBSEQUENT TO A STATE'S ADMISSION TO THE UNION, AND NOT ONE
WHICH EXISTED ONLY PRIOR TO ADMISSION - IN OTHER WORDS, A BOUNDARY
CARRYING THE LEGAL CONSEQUENCES OF THE EVENT OF ADMISSION.  IT REASONS
FROM THIS THAT SINCE A STATE'S SEAWARD BOUNDARY CANNOT BE GREATER THAN
THE NATIONAL MARITIME BOUNDARY, AND SINCE THE NATIONAL BOUNDARY WAS AT
ALL RELEVANT TIMES NEVER GREATER THAN THREE MILES, NO STATE COULD HAVE
HAD A SEAWARD BOUNDARY IN EXCESS OF THREE MILES, REGARDLESS OF WHAT IT
MAY HAVE CLAIMED PRIOR TO ADMISSION.  FURTHER, THE GOVERNMENT
UNDERTAKES TO SHOW THAT, IRRESPECTIVE OF THE EXTENT OF THE NATIONAL
MARITIME BOUNDARY, NONE OF THESE STATES EVER HAD A VALID SEAWARD
BOUNDARY IN EXCESS OF THREE MILES, EVEN PRIOR TO ADMISSION, AND THAT NO
SUCH BOUNDARY WAS THEREAFTER APPROVED BY CONGRESS FOR ANY STATE. 

THE STATES, ON THE OTHER HAND, MAKE SEVERAL ALTERNATIVE ARGUMENTS. 
AT ONE EXTREME, THEY CONTEND THAT THE SUBMERGED LANDS ACT IPSO FACTO
MAKES A THREE-LEAGUE GRANT TO ALL THE GULF STATES, OR AT LEAST THAT THE
ACT BY ITS TERMS ESTABLISHES THE SEAWARD BOUNDARY OF SOME STATES,
NOTABLY TEXAS AND FLORIDA, AT THREE LEAGUES.  ALTERNATIVELY, THEY ARGUE
THAT IF THE EXTENT OF SUCH STATE BOUNDARIES "AT THE TIME" OF ADMISSION
WAS LEFT TO JUDICIAL DETERMINATION, THEN THE CONTROLLING INQUIRY IS
WHAT SEAWARD BOUNDARY EACH STATE HAD JUST PRIOR TO ADMISSION.  IF,
HOWEVER, THE ACT CONTEMPLATES A BOUNDARY AS FIXED BY THE EVENT OF
ADMISSION, EACH STATE CONTENDS THAT CONGRESS FIXED FOR IT A THREE
LEAGUE GULF BOUNDARY, AND THAT WHATEVER MAY HAVE BEEN THE EXTENT OF THE
NATIONAL MARITIME BOUNDARY AT THE TIME IS AN IRRELEVANT FACTOR. 
FLORIDA FURTHER CONTENDS THAT WHEN IT WAS READMITTED TO THE UNION IN
1868, CONGRESS APPROVED FOR IT A THREE-LEAGUE GULF BOUNDARY.  AND
FINALLY THE STATES ARGUE THAT IF THE NATIONAL BOUNDARY IS IN ANY WAY
RELEVANT, IT HAS AT ALL MATERIAL TIMES IN FACT BEEN AT THREE LEAGUES IN
THE GULF OF MEXICO. 

BOTH SIDES HAVE PRESENTED IN SUPPORT OF THEIR RESPECTIVE POSITIONS A
MASSIVE ARRAY OF HISTORICAL DOCUMENTS, OF WHICH WE TAKE JUDICIAL
NOTICE, AND SUBSTANTIALLY AGREE THAT ALL THE ISSUES TENDERED CAN
PROPERLY BE DISPOSED OF ON THE BASIS OF THE PLEADINGS AND SUCH
DOCUMENTS. 

IN THIS OPINION WE CONSIDER THE ISSUES ARISING IN COMMON BETWEEN THE
GOVERNMENT AND ALL THE DEFENDANT STATES, AND THE PARTICULAR CLAIMS OF
TEXAS, LOUISIANA, MISSISSIPPI, AND ALABAMA, ALL OF WHICH DEPEND UPON
THEIR ORIGINAL ADMISSION BOUNDARIES.  THE PARTICULAR CLAIMS OF FLORIDA,
WHICH INVOLVE PRIMARILY ITS READMISSION BOUNDARY, ARE CONSIDERED IN A
SEPARATE OPINION.  POST, P. 121. 

                                              I.

                                 THE COMMON ISSUES. 

                            A. THE STATUTE ON ITS FACE. 

THE STATES' CONTENTION THAT THE ACT IPSO FACTO GRANTS THEM SUBMERGED
LAND RIGHTS OF THREE LEAGUES IN THE GULF MAY BE SHORTLY ANSWERED.  THE
TERMS OF THE STATUTE REQUIRE REJECTION OF SUCH A CONSTRUCTION.  RATHER
THE MEASURE OF THE GRANT IN EXCESS OF THREE MILES IS MADE TO DEPEND
ENTIRELY UPON THE LOCATION OF A STATE'S ORIGINAL OR LATER
CONGRESSIONALLY APPROVED MARITIME BOUNDARY, SUBJECT ONLY TO THE THREE
LEAGUE LIMITATION OF THE GRANT. 

WE TURN NEXT TO THE QUESTION WHETHER, AS THE STATES CONTEND, THE
FIRST OF THE TWO ALTERNATIVE REQUIREMENTS OF SEC. 2 - A BOUNDARY WHICH
"EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE UNION" - IS
SATISFIED MERELY BY SHOWING A PREADMISSION BOUNDARY, OR WHETHER, AS THE
GOVERNMENT CLAIMS, THAT REQUIREMENT CONTEMPLATES ONLY A BOUNDARY THAT
CARRIES THE LEGAL CONSEQUENCES OF THE EVENT OF ADMISSION.  WHILE IT IS
MANIFEST THAT THE SECOND REQUIREMENT OF SEC. 2 - A BOUNDARY WHICH WAS
"HERETOFORE APPROVED BY CONGRESS" - MUST TAKE INTO ACCOUNT THE EFFECT
OF CONGRESSIONAL ACTION, IT IS NOT CLEAR FROM THE FACE OF THE STATUTE
THAT THE SAME IS TRUE OF THE FIRST REQUIREMENT - A BOUNDARY "AS IT
EXISTED AT THE TIME A STATE BECAME A MEMBER OF THE UNION." 

THE GOVERNMENT ARGUES THAT IN CONSTRUING THE FIRST REQUIREMENT OF
SEC. 2 THE EFFECT OF CONGRESSIONAL ACTION CANNOT BE IGNORED BECAUSE TO
DO SO WOULD BE TO MEASURE THE BOUNDARY PRIOR TO THE TIME A STATE BECAME
A MEMBER OF THE UNION, AND "AT THE TIME" CANNOT MEAN "PRIOR TO THE
TIME."  HOWEVER, IT MIGHT BE CONTENDED WITH EQUAL FORCE THAT TO TAKE
ACCOUNT OF THE EFFECT OF CONGRESSIONAL ACTION WOULD BE TO MEASURE THE
BOUNDARY AFTER THE TIME THE STATE BECAME A MEMBER OF THE UNION, AND "AT
THE TIME" CANNOT MEAN "AFTER THE TIME."  INDEED, IF "AT THE TIME" WERE
TO BE TAKEN IN A PERFECTLY LITERAL SENSE, IT COULD REFER ONLY TO THE
TIMELESS INSTANT BEFORE WHICH THE CONSEQUENCES OF NOT BEING A STATE
WOULD OBTAIN, AND AFTER WHICH THE CONSEQUENCES OF STATEHOOD WOULD
FOLLOW, LEAVING UNANSWERED THE QUESTION WHETHER THE EFFECT OF
CONGRESSIONAL ACTION WAS TO BE CONSIDERED OR NOT.  IN SHORT, IF THE
TERM IS TO BE GIVEN CONTENT IT MUST BE READ AS REFERRING EITHER TO SOME
TIME BEFORE OR AFTER THE INSTANT OF ADMISSION, OR TO BOTH TIMES. 

AS AN AID TO CONSTRUCTION OF "AT THE TIME" IN SEC. 2, THE GOVERNMENT
POINTS TO SEC. 4, THE LAST SENTENCE OF WHICH STATES: 

"NOTHING IN THIS SECTION IS TO BE CONSTRUED AS QUESTIONING OR IN ANY
MANNER PREJUDICING THE EXISTENCE OF ANY STATE'S SEAWARD BOUNDARY BEYOND
THREE GEOGRAPHICAL MILES IF IT WAS SO PROVIDED BY ITS CONSTITUTION OR
LAWS PRIOR TO OR AT THE TIME SUCH STATE BECAME A MEMBER OF THE UNION,
OR IF IT HAS BEEN HERETOFORE APPROVED BY CONGRESS." 

IT IS URGED THAT THE DISJUNCTIVE USE OF THE TERMS "PRIOR TO" AND "AT
THE TIME" SHOWS THAT THE LATTER MUST HAVE BEEN USED TO REFER TO THE
TIME AFTER ADMISSION, SINCE THE PHRASEOLOGY WOULD OTHERWISE BE
REDUNDANT, AND THAT SUCH MEANING SHOULD ALSO BE ATTRIBUTED TO THE SAME
TERM IN SEC. 2, THEREBY INCLUDING THE EFFECT OF CONGRESSIONAL ACTION. 
BUT, AS HAS ALREADY BEEN INDICATED, "AT THE TIME" INHERENTLY CAN ALSO
BE TAKEN AS REFERRING TO THE PREADMISSION PERIOD, THEREBY EXCLUDING THE
EFFECT OF SUCH ACTION.  AND ON THAT BASIS THERE WOULD BE NO REDUNDANCY
IN THE PHRASE "PRIOR TO OR AT THE TIME" IF "AT THE TIME" MEANT
IMMEDIATELY BEFORE THE INSTANT OF ADMISSION AND "PRIOR TO" REFERRED TO
TIMES SUBSTANTIALLY PRIOR TO ADMISSION; YET THIS WOULD NONETHELESS
EXCLUDE THE EFFECT OF CONGRESSIONAL ACTION.  SO FAR AS THE STATUTE
ITSELF IS CONCERNED, THE GOVERNMENT'S ARGUMENT IS THUS INCONCLUSIVE. 

NOR DO THE STATES' ARGUMENTS UPON THE FACE OF THE STATUTE ILLUMINE
THE MEANING OF "AT THE TIME" AS USED IN SEC. 2.  THEY CONTEND THAT THE
MEANING OF SEC. 2 IS EXPLAINED OR CLARIFIED BY THE LAST SENTENCE OF
SEC. 4.  ACCORDING TO THEM, A BOUNDARY "EXISTED AT THE TIME A STATE
BECAME A MEMBER OF THE UNION" (SEC. 2) IF "IT WAS SO PROVIDED BY ITS
CONSTITUTION OR LAWS PRIOR TO OR AT THE TIME SUCH STATE BECAME A MEMBER
OF THE UNION  ...  ."  (SEC. 4.)  UNDER THIS VIEW, WHATEVER THE MEANING
OF "AT THE TIME," THE EXISTENCE OF A STATE CONSTITUTIONAL OR STATUTORY
THREE-LEAGUE PROVISION PRIOR TO ADMISSION WOULD CONCLUSIVELY ESTABLISH
THE BOUNDARY CONTEMPLATED BY THE ACT, IRRESPECTIVE OF THE CHARACTER OF
CONGRESSIONAL ACTION UPON ADMISSION.  HOWEVER, THIS PROVISION APPEARS
NOT IN THE DEFINITIONAL OR GRANTING SECTIONS OF THE STATUTE (SECS. 2 OR
3), BUT IN SEC. 4, THE PURPOSE OF WHICH IS TO APPROVE AND CONFIRM THE
BOUNDARIES OF ALL STATES AT THREE MILES, AND TO NEGATIVE ANY PREJUDICE
WHICH MIGHT THEREBY RESULT TO CLAIMS IN EXCESS OF THREE MILES.  IT THUS
DOES NOT DEFINE THE GRANT, BUT AT MOST DESCRIBES THE CLAIMS PROTECTED
FROM PREJUDICE BY SEC. 4 IN TERMS OF THEIR MOST LIKELY NATURE.  A FAIR
READING OF THE SECTION DOES NOT POINT TO THE CONCLUSION THAT CLAIMS OF
THIS NATURE WERE DEEMED TO BE SELF-PROVING. 

FINALLY, THERE IS NO INDICATION ON THE FACE OF THE STATUTE WHETHER
THE EXECUTIVE POLICY OF THE UNITED STATES ON THE EXTENT OF TERRITORIAL
WATERS IS A RELEVANT CIRCUMSTANCE IN ASCERTAINING THE LOCATION OF STATE
SEAWARD BOUNDARIES FOR PURPOSES OF THE ACT. 

BECAUSE THE STATUTE ON ITS FACE IS INCONCLUSIVE AS TO THESE ISSUES,
WE TURN TO THE LEGISLATIVE HISTORY. 

               B. THE LEGISLATIVE HISTORY. 

THIS COURT EARLY HELD THAT THE 13 ORIGINAL STATES, BY VIRTUE OF THE
SOVEREIGNTY ACQUIRED THROUGH REVOLUTION AGAINST THE CROWN, OWNED THE
LANDS BENEATH NAVIGABLE INLAND WATERS WITHIN THEIR TERRITORIAL
BOUNDARIES, AND THAT EACH SUBSEQUENTLY ADMITTED STATE ACQUIRED SIMILAR
RIGHTS AS AN INSEPARABLE ATTRIBUTE OF THE EQUAL SOVEREIGNTY GUARANTEED
TO IT UPON ADMISSION.  POLLARD'S LESSEE V. HAGAN, 3 HOW.  212.  (FN12)
IT WAS ASSUMED BY MANY, AND NOT WITHOUT REASON, (FN13) THAT THE SAME
RULE WOULD BE APPLIED TO LANDS BENEATH NAVIGABLE WATERS OF THE MARGINAL
SEA, THAT IS, BEYOND LOW-WATER MARK AND THE OUTER LIMIT OF INLAND
WATERS.  HOWEVER, BEGINNING IN THE 1930'S, THE FEDERAL GOVERNMENT,
WHILE CONCEDING THE VALIDITY OF THE POLLARD RULE AS TO INLAND WATERS,
DISPUTED ITS APPLICABILITY TO SUBMERGED LANDS BEYOND THAT LIMIT, AND
CLAIMED OWNERSHIP OF THOSE LANDS FOR THE UNITED STATES.  (FN14)  THE
CONTROVERSY CENTERED PRIMARILY ON THE OWNERSHIP OF THE OIL-RICH
SUBMERGED LANDS OFF THE COAST OF CALIFORNIA.  THE STATE MAINTAINED THAT
ITS ORIGINAL CONSTITUTION, ADOPTED IN 1849 BEFORE IT WAS ADMITTED TO
THE UNION, ESTABLISHED A SEAWARD BOUNDARY THREE ENGLISH MILES FROM THE
COAST, (FN15) THAT THIS BOUNDARY WAS RATIFIED BY THE ACT OF CONGRESS
ADMITTING IT TO THE UNION, AND THAT THEREFORE UNDER THE POLLARD RULE,
IT WAS ENTITLED TO ALL SUBMERGED LANDS LYING WITHIN THREE ENGLISH MILES
OF ITS COAST.  THIS COURT REFUSED SO TO APPLY POLLARD, AND HELD IN THE
CALIFORNIA CASE AND THE SUBSEQUENT LOUISIANA AND TEXAS CASES, SUPRA,
THAT PARAMOUNT RIGHTS IN THE MARGINAL SEA ARE AN ATTRIBUTE OF NATIONAL
RATHER THAN STATE SOVEREIGNTY, IRRESPECTIVE OF THE LOCATION OF STATE
SEAWARD BOUNDARIES. 

MEANWHILE AN EXTENDED SERIES OF ATTEMPTS WAS UNDERWAY TO SECURE
CONGRESSIONAL LEGISLATION VESTING IN THE STATES THE OWNERSHIP OF THOSE
LANDS WHICH WOULD BE THEIRS UNDER AN APPLICATION OF THE POLLARD RULE TO
THE MARGINAL SEA.  (FN16)  IT WAS STRONGLY URGED, BOTH BEFORE AND AFTER
THE CALIFORNIA DECISION THAT BECAUSE THE STATES HAD FOR MANY YEARS
RELIED ON THE APPLICABILITY OF THE POLLARD RULE TO THE MARGINAL SEA, IT
WAS JUST AND EQUITABLE THAT THEY BE DEFINITIVELY GIVEN THE RIGHTS WHICH
FOLLOW FROM SUCH AN APPLICATION OF THE RULE, AND THE CALIFORNIA,
LOUISIANA, AND TEXAS CASES WERE SEVERELY CRITICIZED FOR NOT HAVING SO
APPLIED IT.  (FN17) 

THUS VIRTUALLY EVERY "QUITCLAIM" MEASURE INTRODUCED BETWEEN 1945 AND
1953, WHEN THE SUBMERGED LANDS ACT WAS ULTIMATELY ENACTED, FRAMED THE
GRANT IN TERMS OF "LANDS BENEATH NAVIGABLE WATERS WITHIN STATE
BOUNDARIES."  THIS FRAMEWORK WAS EMPLOYED BECAUSE THE SPONSORS
UNDERSTOOD THIS COURT TO HAVE ESTABLISHED, PRIOR TO THE CALIFORNIA
DECISION, A RULE OF STATE OWNERSHIP ITSELF DEFINED IN TERMS OF STATE
TERRITORIAL BOUNDARIES, WHETHER LOCATED AT OR BELOW LOW-WATER MARK. 
(FN18)  SINCE, HOWEVER, NONE OF THE CASES WHICH HAD APPLIED THAT RULE
INVOLVED LANDS BELOW LOW-WATER MARK, AND SINCE THE CALIFORNIA AND
SUBSEQUENT LOUISIANA AND TEXAS CASES ADOPTED FOR SUCH LANDS A RULE
WHICH DOES NOT DEPEND UPON STATE BOUNDARIES, THIS COURT HAS NEVER HAD
OCCASION TO CONSIDER THE PRECISE NATURE AND METHOD OF DETERMINING STATE
TERRITORIAL BOUNDARIES IN THE OPEN SEA, SUCH AS WOULD CIRCUMSCRIBE THE
EXTENT OF STATE OWNERSHIP OF OFFSHORE LANDS UNDER AN APPLICATION OF THE
POLLARD RULE.  BECAUSE CONGRESS, IN THE EXERCISE OF ITS CONSTITUTIONAL
POWER TO DISPOSE OF FEDERAL PROPERTY, HAS CHOSEN SO TO FRAME ITS GRANT,
WE ARE NOW CALLED ON TO RESOLVE SUCH QUESTIONS IN LIGHT OF THE ACT'S
HISTORY AND PURPOSES. 

1.  CONFIRMATION OF ALL BOUNDARIES AT THREE MILES. 

FROM THE VERY OUTSET, THE SPONSORS OF "QUITCLAIM" LEGISLATION
BELIEVED THAT ALL STATES WERE ENTITLED TO AT LEAST THREE MILES OF
COASTAL SUBMERGED LANDS.  (FN19)  THE EARLIEST BILLS CONFIRMED TO THE
STATES ALL LANDS BENEATH NAVIGABLE WATERS WITHIN THEIR BOUNDARIES, AND
DEFINED "LANDS BENEATH NAVIGABLE WATERS" TO INCLUDE AT LEAST ALL LANDS
LYING WITHIN THREE GEOGRAPHICAL MILES OF THE COAST OF EACH STATE. 
(FN200  HOWEVER, THEY CONTAINED NO DEFINITION OF "BOUNDARIES," AND IT
WAS APPARENTLY ASSUMED THAT THE BOUNDARIES OF ALL STATES EXTENDED AT
LEAST THREE MILES.  (FN21)  OPPONENTS OF SUCH LEGISLATION QUICKLY
POINTED OUT THAT WHILE CALIFORNIA BASED ITS THREE-MILE CLAIM ON AN
EXPRESSLY DEFINED MARITIME BOUNDARY, MANY, IF NOT MOST, OF THE COASTAL
STATES LACKED SUCH A BOUNDARY, (FN22) AND THAT THEREFORE, SUCH STATES
COULD NOT AVAIL THEMSELVES OF THE POLLARD RULE, THE APPLICABILITY OF
WHICH IS RESTRICTED TO AREAS WITHIN THE ACTUAL TERRITORIAL BOUNDARIES
OF THE STATE, EVEN ASSUMING THE RULE TO BE CAPABLE OF APPLICATION
BEYOND LOW-WATER MARK.  (FN23)  PROPONENTS OF THE LEGISLATION ALLEGED
IT TO BE DEFECTIVE IN THAT IT GRANTED ONLY THOSE LANDS BENEATH
NAVIGABLE WATERS WHICH LAY WITHIN STATE BOUNDARIES, AND THAT THIS COURT
IN THE CALIFORNIA CASE, WHILE NOT EXPRESSLY PASSING ON THE QUESTION,
HAD CAST DOUBT ON WHETHER ANY OF THE ORIGINAL STATES EVER HAD A
BOUNDARY BEYOND ITS COAST.  (FN24)  AS A RESULT, A NEW SECTION WAS
ADDED, SUBSTANTIALLY SIMILAR TO THE SECOND AND THIRD SENTENCES OF SEC.
4 OF THE PRESENT ACT (SEE NOTE 8, ANTE), WHICH PERMITTED EACH STATE
WHICH HAD NOT ALREADY DONE SO TO EXTEND ITS BOUNDARY SEAWARD THREE
MILES AND APPROVED ALL SUCH EXTENSIONS THERETOFORE OR THEREAFTER MADE,
WITHOUT PREJUDICE TO ANY STATE'S CLAIM THAT ITS BOUNDARY EXTENDED
BEYOND THREE MILES.  (FN25) 

IT IS NOT ENTIRELY CLEAR ON WHAT THEORY CONGRESS THUS CONCLUDED THAT
EACH STATE OWNED THE SUBMERGED LANDS WITHIN THREE MILES OF ITS COAST,
IRRESPECTIVE OF THE EXISTENCE OF AN EXPRESSLY DEFINED SEAWARD BOUNDARY
TO THAT DISTANCE.  IT WAS SUBSTANTIALLY AGREED THAT THE 13 ORIGINAL
COLONIES OWNED THE LANDS WITHIN THREE MILES OF THEIR COASTS BECAUSE OF
THEIR SOVEREIGNTY AND THE ALLEGED INTERNATIONAL CUSTOM WHICH PERMITTED
A NATION TO EXTEND ITS TERRITORIAL JURISDICTION THAT FAR.  (FN26)  SOME
PROPONENTS OF THE LEGISLATION SEEM TO HAVE CONCLUDED THAT THEREFORE,
NOT ONLY DID THE ORIGINAL STATES RETAIN SUCH RIGHTS AFTER FORMATION OF
THE UNION, BUT THAT SUBSEQUENTLY ADMITTED STATES ACQUIRED SIMILAR
RIGHTS WITHIN THREE MILES, IRRESPECTIVE OF THE LOCATION OF THEIR
BOUNDARIES, BY THE OPERATION OF THE EQUAL-FOOTING CLAUSE.  (FN27)  IT
WAS ALSO SUGGESTED THAT STATE OWNERSHIP WITHIN THREE MILES CAME ABOUT
BY OPERATION OF FEDERAL LAW BECAUSE OF THE FEDERAL GOVERNMENT'S ASSUMED
ADHERENCE TO THE THREE-MILE LIMIT OF TERRITORIAL WATERS.  (FN28)  WHILE
SOME SPEAKERS MAINTAINED THAT THESE FACTORS IN EFFECT GAVE EACH STATE A
THREE-MILE MARITIME BOUNDARY, (FN29) OTHERS ESCHEWED TECHNICAL RELIANCE
ON THE MATTER OF BOUNDARIES AND THOUGHT IT SUFFICIENT THAT THE POLLARD
RULE HAD ALWAYS BEEN THOUGHT TO CONFER OWNERSHIP ON THE STATE OF LANDS
WITHIN THREE MILES OF THE COAST AND THAT THE STATES OUGHT TO BE
RESTORED TO THE POSITION THEY BELIEVED THEY HAD FORMERLY OCCUPIED. 
(FN30)  AND THERE IS SOME SUGGESTION THAT SINCE MANY STATES, UNDER THE
CONGRESSIONAL VIEW OF POLLARD, HAD INDISPUTABLE CLAIMS TO THREE MILES
OF SUBMERGED LANDS, THE REMAINDER OUGHT TO BE TREATED ON A PARITY
WHETHER OR NOT THEIR CLAIMS WERE TECHNICALLY JUSTIFIED.  (FN31)  THE
UPSHOT OF ALL OF THESE DIFFERING VIEWS WAS THE CONFIRMATION OF EACH
COASTAL STATE'S SEAWARD BOUNDARY AT THREE GEOGRAPHICAL MILES. 

2.  BOUNDARIES BEYOND THREE MILES. 

WHATEVER MAY HAVE BEEN THE UNCERTAINTY ATTENDING THE RELEVANCE OF
STATE BOUNDARIES WITH RESPECT TO RIGHTS IN SUBMERGED LANDS WITHIN THREE
MILES OF THE COAST, WE FIND A CLEAR UNDERSTANDING BY CONGRESS THAT THE
QUESTION OF RIGHTS BEYOND THREE MILES TURNED ON THE EXISTENCE OF AN
EXPRESSLY DEFINED STATE BOUNDARY BEYOND THREE MILES.  CONGRESS WAS
AWARE THAT SEVERAL STATES CLAIMED SUCH A BOUNDARY.  TEXAS THROUGHOUT
REPEATEDLY ASSERTED ITS CLAIM THAT WHEN AN INDEPENDENT REPUBLIC ITS
STATUTES ESTABLISHED A THREE-LEAGUE MARITIME BOUNDARY, AND THAT THE
UNITED STATES RATIFIED THAT BOUNDARY WHEN TEXAS WAS ADMITTED TO THE
UNION AND PERMITTED TEXAS TO RETAIN ITS OWN PUBLIC LANDS.  (FN32)
FLORIDA REPEATEDLY ASSERTED ITS CLAIM THAT SUBSEQUENT TO ITS SECESSION
AT THE TIME OF THE CIVIL WAR, IT FRAMED A CONSTITUTION WHICH
ESTABLISHED A THREE-LEAGUE BOUNDARY ALONG ITS GULF COAST, AND THAT SUCH
BOUNDARY WAS RATIFIED WHEN CONGRESS IN 1868 APPROVED THE STATE'S
CONSTITUTION AND READMITTED IT TO THE UNION.  (FN33)  LOUISIANA
ASSERTED THAT THE ACT OF CONGRESS ADMITTING IT TO THE UNION IN 1812
FIXED FOR IT A THREE-LEAGUE MARITIME BOUNDARY BY VIRTUE OF THE
PROVISION WHICH INCLUDES WITHIN THE STATE "ALL ISLANDS WITHIN THREE
LEAGUES OF THE COAST."  (FN34)  AND IT WAS SUGGESTED THAT MISSISSIPPI
AND ALABAMA MIGHT CLAIM BOUNDARIES SIX LEAGUES IN THE GULF BECAUSE OF
SIMILAR PROVISIONS IN THE ACTS ADMITTING THEM TO THE UNION.  (FN35) 

IT WAS RECOGNIZED THAT IF THE LEGAL EXISTENCE OF SUCH BOUNDARIES
COULD BE ESTABLISHED, THEY WOULD CLEARLY ENTITLE THE RESPECTIVE STATES
TO SUBMERGED LAND RIGHTS TO THAT DISTANCE UNDER AN APPLICATION OF THE
POLLARD RULE TO THE MARGINAL SEA.  HENCE, WHILE A THREE-MILE BOUNDARY
WAS EXPRESSLY CONFIRMED FOR ALL COASTAL STATES, THE RIGHT OF THE GULF
STATES TO PROVE BOUNDARIES IN EXCESS OF THREE MILES WAS PRESERVED. 
THIS TREATMENT OF THE MATTER WAS CARRIED INTO ALL THE NUMEROUS
"QUITCLAIM" BILLS BY LANGUAGE SIMILAR TO THAT FOUND IN SEC. 4 OF THE
PRESENT ACT, CONFIRMING ALL COASTAL STATE BOUNDARIES AT THREE MILES AND
NEGATING ANY PREJUDICE TO BOUNDARY CLAIMS IN EXCESS OF THAT.  (FN36)
REPEATED EXPRESSIONS OF THE ACT'S SPONSORS MAKE IT ABSOLUTELY CLEAR
THAT NO BOUNDARY IN EXCESS OF THREE MILES WAS FIXED FOR ANY STATE, BUT
THAT A STATE WOULD HAVE TO ESTABLISH THE EXISTENCE OF SUCH A BOUNDARY
IN JUDICIAL PROCEEDINGS.  (FN37)  THE MANY INDIVIDUAL EXPRESSIONS OF
VIEWS AS TO THE LOCATION OF PARTICULAR STATE BOUNDARIES - NOTABLY
STATEMENTS THAT THE EFFECT OF THE ACT WOULD BE TO GIVE TEXAS AND
FLORIDA THREE LEAGUES OF SUBMERGED LAND RIGHTS (FN38) - WHILE
UNDOUBTEDLY REPRESENTING THE SINCERE BELIEFS OF THE SPEAKERS, CANNOT
SERVE TO RELIEVE THIS COURT FROM MAKING AN INDEPENDENT JUDICIAL INQUIRY
AND ADJUDICATION ON THE SUBJECT, AS CONTEMPLATED BY CONGRESS. 

THE EARLIER "QUITCLAIM" BILLS DEFINED THE GRANT IN TERMS OF PRESENTLY
EXISTING BOUNDARIES, (FN39) SINCE SUCH BOUNDARIES WOULD HAVE
CIRCUMSCRIBED THE LANDS OWNED BY THE STATES UNDER AN APPLICATION OF
POLLARD TO THE MARGINAL SEA.  HOWEVER, THE SPONSORS OF THESE MEASURES
SOON RECOGNIZED THAT PRESENT BOUNDARIES COULD BE ASCERTAINED ONLY BY
REFERENCE TO HISTORIC EVENTS.  THE CLAIMS ADVANCED BY THE GULF STATES
DURING CONSIDERATION OF EARLIER BILLS WERE IDENTICAL TO THOSE
SUBSEQUENTLY ASSERTED.  (FN40)  THE THEORY OF THOSE CLAIMS, AS WE HAVE
NOTED, DEPENDED EITHER, AS IN THE CASES OF TEXAS AND FLORIDA, UPON A
CONSTITUTIONAL OR STATUTORY PROVISION ALLEGEDLY RATIFIED BY
CONGRESSIONAL ACQUIESCENCE, OR, AS IN THE CASES OF LOUISIANA,
MISSISSIPPI, AND ALABAMA, UPON EXPRESS CONGRESSIONAL ACTION.  INDEED,
IT COULD HARDLY HAVE BEEN CONTENDED THAT CONGRESSIONAL ACTION
SURROUNDING THE EVENT OF ADMISSION WAS NOT RELEVANT TO THE
DETERMINATION OF PRESENT BOUNDARIES.  SOME SUGGESTIONS WERE MADE,
HOWEVER, THAT STATES MIGHT BY THEIR OWN ACTION HAVE EFFECTIVELY
EXTENDED, OR BE ABLE TO EXTEND, THEIR BOUNDARIES SUBSEQUENT TO
ADMISSION.  (FN41)  TO EXCLUDE THE POSSIBILITY THAT STATES MIGHT BE
ABLE TO ESTABLISH PRESENT BOUNDARIES BASED ON EXTRAVAGANT UNILATERAL
EXTENSIONS, SUCH AS THOSE RECENTLY MADE BY TEXAS AND LOUISIANA, (FN42)
SUBSEQUENT DRAFTS OF THE BILL INTRODUCED THE TWOFOLD TEST OF THE
PRESENT ACT - BOUNDARIES WHICH EXISTED AT THE TIME OF ADMISSION AND
BOUNDARIES HERETOFORE APPROVED BY CONGRESS.  (FN43)  IT IS APPARENT
THAT THE PURPOSE OF THE CHANGE WAS NOT TO ALTER THE BASIC THEORY OF THE
GRANT, BUT TO ASSURE THAT THE DETERMINATION OF BOUNDARIES WOULD BE MADE
IN ACCORDANCE WITH THAT THEORY - THAT THE STATES SHOULD BE "RESTORED"
TO THE OWNERSHIP OF SUBMERGED LANDS WITHIN THEIR PRESENT BOUNDARIES,
DETERMINED, HOWEVER, BY THE HISTORIC ACTION TAKEN WITH RESPECT TO THEM
JOINTLY BY CONGRESS AND THE STATE.  (FN44)  IT WAS SUCH ACTION THAT THE
FRAMERS OF THIS LEGISLATION CONCEIVED TO FIX THE STATES' BOUNDARIES
AGAINST SUBSEQUENT CHANGE WITHOUT THEIR CONSENT AND THEREFORE TO CONFER
UPON THEM THE LONG-STANDING EQUITIES WHICH THE MEASURE WAS INTENDED TO
RECOGNIZE.  (FN45) 

SOMEWHAT LATER, THE LAST SENTENCE OF THE PRESENT ACT'S SEC. 4 WAS
ADDED, FOR THE SPECIFIC PURPOSE OF ASSURING THAT THE BOUNDARY CLAIMS OF
TEXAS AND FLORIDA WOULD BE PRESERVED.  (FN46)  THE FIRST PART OF THE
SENTENCE (SEE NOTE 8, ANTE), INTENDED TO REFER TO TEXAS ALONE, PROTECTS
THE STATE'S CLAIM TO A THREE-LEAGUE BOUNDARY AS "PROVIDED BY ITS
CONSTITUTION OR LAWS PRIOR TO OR AT THE TIME SUCH STATE BECAME A MEMBER
OF THE UNION."  THAT CLAIM, HOWEVER, WAS ASSERTED TO REST NOT ONLY ON
ITS STATUTE BUT ALSO ON THE ACTION OF CONGRESS IN ADMITTING IT TO THE
UNION.  (FN47)  IF ANY DOUBT COULD REMAIN THAT THE EVENT OF ADMISSION
IS A VITAL CIRCUMSTANCE IN ASCERTAINING THE LOCATION OF BOUNDARIES
WHICH EXISTED "AT THE TIME" OF ADMISSION WITHIN THE MEANING OF THE
SUBMERGED LANDS ACT, IT IS CONCLUSIVELY DISPELLED BY REPEATED
STATEMENTS OF ITS PROPONENTS TO THAT EFFECT.  (FN48)    WE CONCLUDE,
THEREFORE, THAT THE STATES' CONTENTION THAT PREADMISSION BOUNDARIES,
STANDING ALONE, SUFFICE TO MEET THE REQUIREMENTS OF THE STATUTE IS NOT
TENABLE.    3.  THE QUESTION OF EXECUTIVE POLICY RESPECTING THE "THREE
MILE LIMIT." 

DURING CONSIDERATION OF THE VARIOUS "QUITCLAIM" BILLS BETWEEN 1945
AND 1953, THE SUGGESTION THAT INTERNATIONAL QUESTIONS MIGHT BE RAISED
BY THE BILL CONSTANTLY RECURRED.  IT WAS ASSERTED THAT THE UNITED
STATES MIGHT BE EMBARRASSED IN ITS DEALINGS WITH OTHER NATIONS, FIRST,
BY PERMITTING STATES TO EXERCISE RIGHTS IN SUBMERGED LANDS BEYOND THREE
MILES, (FN49) AND, SECOND, BY RECOGNIZING THAT THE BOUNDARIES OF SOME
STATES MIGHT EXTEND BEYOND THREE MILES FROM THE COAST.  (FN50)  THE
FIRST OBJECTION WAS LAID TO REST BY THE TESTIMONY OF JACK B. TATE,
DEPUTY LEGAL ADVISER TO THE STATE DEPARTMENT.  MR. TATE STATED THAT
EXPLOITATION OF SUBMERGED LANDS INVOLVED A JURISDICTION OF A VERY
SPECIAL AND LIMITED CHARACTER, AND HE ASSURED THE COMMITTEE THAT
ASSERTION OF SUCH A JURISDICTION BEYOND THREE MILES WOULD NOT CONFLICT
WITH INTERNATIONAL LAW OR THE TRADITIONAL UNITED STATES POSITION ON THE
EXTENT OF TERRITORIAL WATERS.  HE CONCLUDED THAT SINCE THE UNITED
STATES HAD ALREADY ASSERTED EXCLUSIVE RIGHTS IN THE CONTINENTAL SHELF
AS AGAINST THE WORLD, THE QUESTION TO WHAT EXTENT THOSE RIGHTS WERE TO
BE EXERCISED BY THE FEDERAL GOVERNMENT AND TO WHAT EXTENT BY THE STATES
WAS ONE OF WHOLLY DOMESTIC CONCERN WITHIN THE POWER OF CONGRESS TO
RESOLVE.  (FN51) 

THE SECOND OBJECTION, HOWEVER - THAT TO RECOGNIZE BY THE ACT THE
POSSIBLE EXISTENCE OF SOME STATE MARITIME BOUNDARIES BEYOND THREE MILES
WOULD EMBARRASS THIS COUNTRY IN ITS DEALINGS WITH OTHER NATIONS - WAS
PERSISTENTLY PRESSED BY THE STATE DEPARTMENT AND BY OPPONENTS OF THE
BILL.  THE BILL'S SUPPORTERS CONSISTENTLY TOOK THE POSITION THAT UNDER
THE POLLARD RULE AS THEY UNDERSTOOD IT, THE EXTENT OF A STATE'S
SUBMERGED LAND RIGHTS IN EXCESS OF THREE MILES DEPENDED ENTIRELY UPON
THE LOCATION OF ITS MARITIME BOUNDARY AS FIXED BY HISTORICAL EVENTS,
(FN52) AND THAT TO THE EXTENT A STATE'S BOUNDARY HAD BEEN SO FIXED
BEYOND THREE MILES, IT CONSTITUTED AN EXCEPTION TO THIS COUNTRY'S
ASSUMED ADHERENCE TO THE THREE-MILE LIMIT.  THE ADMISSION OF TEXAS AND
THE READMISSION OF FLORIDA WERE REPEATEDLY ASSERTED AS INSTANCES WHERE
CONGRESS HAD MADE EXCEPTIONS TO THE THREE-MILE POLICY, PURPORTEDLY
BASED ON THE SHALLOWNESS OF WATERS IN THE GULF AND THE ALLEGED SPANISH
CUSTOM OF CLAIMING THREE LEAGUES OF TERRITORIAL WATERS.  (FN53) 

THE STATE DEPARTMENT, CONFRONTED WITH THIS ARGUMENT, TENACIOUSLY
MAINTAINED THAT IT HAD NEVER RECOGNIZED ANY BOUNDARIES IN EXCESS OF
THREE MILES.  (FN54)  IT INSISTED THAT BY VIRTUE OF FEDERAL SUPREMACY
IN THE FIELD OF FOREIGN RELATIONS, THE TERRITORIAL CLAIMS OF THE STATES
COULD NOT EXCEED THOSE OF THE NATION, AND THAT, THEREFORE, IF THE BILL
RECOGNIZED THE EFFECTIVENESS OF THE RELIED-ON HISTORICAL EVENTS TO FIX
BOUNDARIES BEYOND THREE MILES DESPITE THE STATE DEPARTMENT'S REFUSAL SO
TO RECOGNIZE THEM, THE BILL WOULD VIOLATE THIS COUNTRY'S CONSISTENT
FOREIGN POLICY.  THE GOVERNMENT NOW URGES IN THIS CASE A CLOSELY
SIMILAR CONTENTION.  IT SAYS THAT THE SUBMERGED LANDS ACT DID NOT
ESTABLISH ANY FORMULA FOR THE ASCERTAINMENT OF STATE BOUNDARIES BUT
LEFT THEM TO BE JUDICIALLY DETERMINED, AND THAT BECAUSE OF FEDERAL
SUPREMACY IN THE FIELD OF FOREIGN RELATIONS, THIS COURT MUST HOLD THAT
THE EXECUTIVE POLICY OF CLAIMING NO MORE THAN THREE MILES OF
TERRITORIAL WATERS - ALLEGEDLY IN FORCE AT ALL RELEVANT TIMES, AND
EVIDENCED BY THE STATE DEPARTMENT'S CONSISTENT REFUSAL TO RECOGNIZE
BOUNDARIES IN EXCESS OF THREE MILES - WORKED A DECISIVE LIMITATION UPON
THE EXTENT OF ALL STATE MARITIME BOUNDARIES FOR PURPOSES OF THIS ACT. 
(FN55) 

WE AGREE THAT THE SUBMERGED LANDS ACT DOES NOT CONTAIN ANY FORMULA TO
BE FOLLOWED IN THE JUDICIAL ASCERTAINMENT OF STATE BOUNDARIES, AND THAT
THEREFORE, WE MUST DETERMINE, AS AN INDEPENDENT MATTER, WHETHER
BOUNDARIES, FOR PURPOSES OF THE ACT, ARE TO BE TAKEN AS FIXED BY
HISTORICAL EVENTS SUCH AS THOSE POINTED TO IN THE CONGRESSIONAL
HEARINGS AND DEBATES, OR WHETHER THEY MUST BE REGARDED AS LIMITED BY
EXECUTIVE POLICY ON THE EXTENT OF TERRITORIAL WATERS, AS CONTENDED BY
THE GOVERNMENT.  HOWEVER, IN LIGHT OF THE PURELY DOMESTIC PURPOSES OF
THE ACT, WE SEE NO IRRECONCILABLE CONFLICT BETWEEN THE EXECUTIVE POLICY
RELIED ON BY THE GOVERNMENT AND THE HISTORICAL EVENTS CLAIMED TO HAVE
FIXED SEAWARD BOUNDARIES FOR SOME STATES IN EXCESS OF THREE MILES.  WE
THINK THAT THE GOVERNMENT'S CONTENTIONS ON THIS SCORE REST ON AN
OVERSIMPLICATION OF THE PROBLEM. 

A LAND BOUNDARY BETWEEN TWO STATES IS AN EASILY UNDERSTOOD CONCEPT. 
IT MARKS THE PLACE WHERE THE FULL SOVEREIGNTY OF ONE STATE ENDS AND
THAT OF THE OTHER BEGINS.  THE CONCEPT OF A BOUNDARY IN THE SEA,
HOWEVER, IS A MORE ELUSIVE ONE.  THE HIGH SEAS, AS DISTINGUISHED FROM
INLAND WATERS, ARE GENERALLY CONCEDED BY MODERN NATIONS TO BE SUBJECT
TO THE EXCLUSIVE SOVEREIGNTY OF NO SINGLE NATION.   (FN56)  IT IS
RECOGNIZED, HOWEVER, THAT A NATION MAY EXTEND ITS NATIONAL AUTHORITY
INTO THE ADJACENT SEA TO A LIMITED DISTANCE FOR VARIOUS PURPOSES.  FOR
HUNDREDS OF YEARS, NATIONS HAVE ASSERTED THE RIGHT TO FISH, TO CONTROL
SMUGGLING, AND TO ENFORCE SANITARY MEASURES WITHIN VARYING DISTANCES
FROM THEIR SEACOASTS.  (FN57)  EARLY IN THIS COUNTRY'S HISTORY, THE
MODERN NOTION HAD BEGUN TO DEVELOP THAT A COUNTRY IS ENTITLED TO FULL
TERRITORIAL JURISDICTION OVER A BELT OF WATERS ADJOINING ITS COAST. 
(FN58)  HOWEVER, EVEN THIS JURISDICTION IS LIMITED BY THE RIGHT OF
FOREIGN VESSELS TO INNOCENT PASSAGE.  (FN59)  THE EXTENT TO WHICH A
NATION CAN EXTEND ITS POWER INTO THE SEA FOR ANY PURPOSE IS SUBJECT TO
THE CONSENT OF OTHER NATIONS, AND ASSERTIONS OF JURISDICTION TO
DIFFERENT DISTANCES MAY BE RECOGNIZED FOR DIFFERENT PURPOSES.  (FN60)
IN A MANNER OF SPEAKING, A NATION WHICH PURPORTS TO EXERCISE ANY RIGHTS
TO A GIVEN DISTANCE IN THE SEA MAY BE SAID TO HAVE A MARITIME BOUNDARY
AT THAT DISTANCE.  BUT SUCH A BOUNDARY, EVEN IF IT DELIMITS TERRITORIAL
WATERS, CONFERS RIGHTS MORE LIMITED THAN A LAND BOUNDARY.  IT IS ONLY
IN A VERY SPECIAL SENSE, THEREFORE, THAT THE FOREIGN POLICY OF THIS
COUNTRY RESPECTING THE LIMIT OF TERRITORIAL WATERS RESULTS IN THE
ESTABLISHMENT OF A "NATIONAL BOUNDARY." 

THE POWER TO ADMIT NEW STATES RESIDES IN CONGRESS.  THE PRESIDENT, ON
THE OTHER HAND, IS THE CONSTITUTIONAL REPRESENTATIVE OF THE UNITED
STATES IN ITS DEALINGS WITH FOREIGN NATIONS.  FROM THE FORMER SPRINGS
THE POWER TO ESTABLISH STATE BOUNDARIES; FROM THE LATTER COMES THE
POWER TO DETERMINE HOW FAR THIS COUNTRY WILL CLAIM TERRITORIAL RIGHTS
IN THE MARGINAL SEA AS AGAINST OTHER NATIONS.  ANY SUCH DETERMINATION
IS, OF COURSE, BINDING ON THE STATES.  THE EXERCISE OF CONGRESS' POWER
TO ADMIT NEW STATES, WHILE IT MAY HAVE INTERNATIONAL CONSEQUENCES, ALSO
ENTAILS CONSEQUENCES AS BETWEEN NATION AND STATE.  WE NEED NOT DECIDE
WHETHER ACTION BY CONGRESS FIXING A STATE'S TERRITORIAL BOUNDARY MORE
THAN THREE MILES BEYOND ITS COAST CONSTITUTES AN OVERRIDING
DETERMINATION THAT THE STATE, AND THEREFORE THIS COUNTRY, ARE TO CLAIM
THAT MUCH TERRITORY AGAINST FOREIGN NATIONS.  IT IS SUFFICIENT FOR
PRESENT PURPOSES TO NOTE THAT THERE IS NO QUESTION OF CONGRESS' POWER
TO FIX STATE LAND AND WATER BOUNDARIES AS A DOMESTIC MATTER.  SUCH A
BOUNDARY, FULLY EFFECTIVE AS BETWEEN NATION AND STATE, UNDOUBTEDLY
CIRCUMSCRIBES THE EXTENT OF NAVIGABLE INLAND WATERS AND UNDERLYING
LANDS OWNED BY THE STATE UNDER THE POLLARD RULE.  WERE THAT RULE
APPLICABLE ALSO TO THE MARGINAL SEA - THE PREMISE ON WHICH CONGRESS
PROCEEDED IN ENACTING THE SUBMERGED LANDS ACT - IT IS CLEAR THAT SUCH A
BOUNDARY WOULD BE SIMILARLY EFFECTIVE TO CIRCUMSCRIBE THE EXTENT OF
SUBMERGED LANDS BEYOND LOW-WATER MARK, AND WITHIN THE LIMITS OF THE
CONTINENTAL SHELF, OWNED BY THE STATE.  FOR, AS THE GOVERNMENT READILY
CONCEDES, THE RIGHT TO EXERCISE JURISDICTION AND CONTROL OVER THE
SEABED AND SUBSOIL OF THE CONTINENTAL SHELF IS NOT INTERNATIONALLY
RESTRICTED BY THE LIMIT OF TERRITORIAL WATERS. 

WE CONCLUDE THAT, CONSONANT WITH THE PURPOSE OF CONGRESS TO GRANT TO
THE STATES, SUBJECT TO THE THREE-LEAGUE LIMITATION, THE LANDS THEY
WOULD HAVE OWNED HAD THE POLLARD RULE BEEN HELD APPLICABLE TO THE
MARGINAL SEA, A STATE TERRITORIAL BOUNDARY BEYOND THREE MILES IS
ESTABLISHED FOR PURPOSES OF THE SUBMERGED LANDS ACT BY CONGRESSIONAL
ACTION SO FIXING IT, IRRESPECTIVE OF THE LIMIT OF TERRITORIAL WATERS. 
WE TURN NOW TO THE TASK OF ASCERTAINING WHAT BOUNDARY WAS SO FIXED FOR
EACH OF THE DEFENDANT STATES. 

                         II.

  THE PARTICULAR CLAIMS OF TEXAS. 

TEXAS, THE ONLY ONE OF THE DEFENDANT STATES WHICH HAD THE STATUS OF
AN INDEPENDENT NATION IMMEDIATELY PRIOR TO ITS ADMISSION, CONTENDS THAT
IT HAD A THREE-LEAGUE MARITIME BOUNDARY WHICH "EXISTED AT THE TIME IT
BECAME A MEMBER OF THE UNION" IN 1845.  WHETHER THAT IS SO FOR THE
PURPOSES OF THE SUBMERGED LANDS ACT DEPENDS UPON A PROPER CONSTRUCTION
OF THE CONGRESSIONAL ACTION ADMITTING THE STATE TO THE UNION. 

TEXAS DECLARED ITS INDEPENDENCE FROM MEXICO ON MARCH 2, 1836, 1 LAWS,
REPUBLIC OF TEXAS, 3-7, AND ON DECEMBER 19, 1836, THE TEXAN CONGRESS
PASSED AN ACT TO DEFINE ITS BOUNDARIES, WHICH WERE DESCRIBED IN PART
AS: 

"BEGINNING AT THE MOUTH OF THE SABINE RIVER, AND RUNNING WEST ALONG
THE GULF OF MEXICO THREE LEAGUES FROM LAND, TO THE MOUTH OF THE RIO
GRANDE, THENCE UP THE PRINCIPAL STREAM OF SAID RIVER  ...  ."  ID.,
133.  SEE DIAGRAM AT P. 65, POST.  (FN61)

IN MARCH 1837 THIS COUNTRY RECOGNIZED THE REPUBLIC OF TEXAS.  (FN62)
ON APRIL 25, 1838, THE UNITED STATES ENTERED INTO A CONVENTION WITH THE
REPUBLIC TO ESTABLISH A BOUNDARY BETWEEN THE TWO COUNTRIES AND TO
PROVIDE FOR A SURVEY OF PART OF IT.  (FN63)  ON APRIL 12, 1844,
PRESIDENT TYLER CONCLUDED A TREATY OF ANNEXATION WITH THE REPUBLIC, BUT
ON JUNE 8, 1844, THE SENATE REFUSED TO RATIFY IT.  (FN64) ON MARCH 1,
1845, PRESIDENT TYLER SIGNED A JOINT RESOLUTION OF CONGRESS FOR THE
ANNEXATION OF TEXAS, WHICH PROVIDED: 

"THAT CONGRESS DOTH CONSENT THAT THE TERRITORY PROPERLY INCLUDED
WITHIN, AND RIGHTFULLY BELONGING TO THE REPUBLIC OF TEXAS, MAY BE
ERECTED INTO A NEW STATE, TO BE CALLED THE STATE OF TEXAS  ...  . SAID
STATE TO BE FORMED, SUBJECT TO THE ADJUSTMENT BY THIS GOVERNMENT OF ALL
QUESTIONS OF BOUNDARY THAT MAY ARISE WITH OTHER GOVERNMENTS  ...  ." 
(FN65) 

PURSUANT TO THIS RESOLUTION, THE PEOPLE OF TEXAS ADOPTED A
CONSTITUTION, WHICH WAS SUBMITTED TO CONGRESS AND BY JOINT RESOLUTION
OF DECEMBER 29, 1845, TEXAS WAS ADMITTED TO THE UNION IN ACCORDANCE
WITH THE TERMS OF THE PREVIOUS JOINT RESOLUTION.  (FN66)  THE 1836
TEXAS BOUNDARY ACT REMAINED IN FORCE UP TO THE TIME OF ADMISSION, AND
THE STATE CONSTITUTION EXPRESSLY CONTINUED IN FORCE FROM THAT TIME
FORWARD ALL LAWS OF THE REPUBLIC NOT REPUGNANT TO THE FEDERAL OR STATE
CONSTITUTION OR THE JOINT RESOLUTION OF ANNEXATION.  (FN67) 

THE GOVERNMENT, WHILE CONCEDING THAT TEXAS CONTINUOUSLY ASSERTED BY
STATUTE A THREE-LEAGUE SEAWARD BOUNDARY, CONTENDS THAT AT NO TIME
BEFORE, DURING, OR AFTER ADMISSION DID THE UNITED STATES OR ANY OTHER
COUNTRY RECOGNIZE THE VALIDITY OF THAT BOUNDARY.  IT FOLLOWS,
THEREFORE, THE GOVERNMENT SAYS, THAT SINCE TEXAS UPON ENTERING THE
UNION BECAME SUBJECT TO THE FOREIGN POLICY OF THE UNITED STATES WITH
RESPECT TO THE "THREE-MILE LIMIT," THE STATE'S SEAWARD BOUNDARY BECAME
IMMEDIATELY AND AUTOMATICALLY FIXED AT THREE MILES.  TEXAS, ON THE
OTHER HAND, ARGUES THAT IT EFFECTIVELY ESTABLISHED, AND THAT THE UNITED
STATES REPEATEDLY RECOGNIZED, THE STATE'S THREE-LEAGUE BOUNDARY BEFORE,
DURING, AND AFTER ADMISSION, AND THAT THEREFORE SUCH A BOUNDARY EXISTED
"AT THE TIME" OF ITS ADMISSION WITHIN THE MEANING OF THE SUBMERGED
LANDS ACT.  FOR REASONS ALREADY DISCUSSED, ANTE, PP. 24-36, WE CONSIDER
THAT THE ONLY RELEVANT INQUIRY IS WHAT BOUNDARY WAS FIXED FOR THE STATE
OF TEXAS BY VIRTUE OF THE CONGRESSIONAL ACTION ADMITTING IT TO THE
UNION IN ACCORDANCE WITH THE TERMS OF THE JOINT RESOLUTION OF MARCH 1,
1845.  THIS INQUIRY FIRST TAKES US BACK TO SOME EARLIER HISTORY. 

BY THE TREATY OF PARIS, SIGNED APRIL 30, 1803, (FN68) FRANCE CEDED TO
THE UNITED STATES THE LOUISIANA TERRITORY.  THE EXTENT OF THE TERRITORY
THUS CONVEYED WAS LEFT UNCERTAIN, THE DESCRIPTION IN THE TREATY
REFERRING ONLY TO A PREVIOUS TREATY BY WHICH FRANCE HAD ACQUIRED THE
TERRITORY FROM SPAIN, WHICH IN TURN DESCRIBED THE AREA ONLY AS "THE
COLONY OR PROVINCE OF LOUISIANA."  (FN69)  IT WAS ASSERTED BY SOME THAT
THE TERRITORY ACQUIRED DID NOT STOP AT THE SABINE RIVER - THE PRESENT
BOUNDARY BETWEEN THE STATES OF LOUISIANA AND TEXAS - BUT EXTENDED
WESTWARD TO THE RIO GRANDE SO AS TO INCLUDE TEXAS.  (FN70)  HOWEVER, BY
THE TREATY OF FEBRUARY 22, 1819, BETWEEN THE UNITED STATES AND SPAIN,
THE BOUNDARY LINE BETWEEN THE TWO COUNTRIES WAS ESTABLISHED AT THE
SABINE.  (FN71)  THOSE WHO HAD BELIEVED THAT THE LOUISIANA TERRITORY
EXTENDED WEST OF THE SABINE DESCRIBED THIS TREATY AS A BREACH OF FAITH
BY THE UNITED STATES IN VIOLATION OF THE COVENANT IN THE 1803 TREATY
WHICH REQUIRED THE INHABITANTS OF ALL THE LOUISIANA TERRITORY TO BE
INCORPORATED AS SOON AS POSSIBLE INTO THE UNION.  (FN72)  SUBSEQUENTLY,
THE UNITED STATES ATTEMPTED UNSUCCESSFULLY ON SEVERAL OCCASIONS TO
ACQUIRE THE TERRITORY WEST OF THE SABINE BY PURCHASE.  (FN73) 
MEANWHILE, MEXICO HAD REVOLTED FROM SPAIN, HAD BEEN RECOGNIZED BY THIS
COUNTRY IN 1822, AND HAD PROCLAIMED A FEDERAL CONSTITUTION IN 1824. 
TEXAS WAS MADE PART OF THE COMPOUND PROVINCE OF COAHUILA-TEXAS, WITH
THE INDICATION THAT IT WOULD EVENTUALLY BE GIVEN A SEPARATE
CONSTITUTION AS A SOVEREIGN STATE.  AFTER A SERIES OF DIFFICULTIES WITH
THE CENTRAL GOVERNMENT, HOWEVER, TEXAS IN 1836 PROCLAIMED ITS OWN
INDEPENDENCE FROM MEXICO.  IT IMMEDIATELY SENT DIPLOMATIC
REPRESENTATIVES TO THE UNITED STATES TO NEGOTIATE FOR ANNEXATION, BUT
NOTHING WAS CONSUMMATED AT THAT TIME.  (FN74) SHORTLY THEREAFTER, IT
PROMULGATED THE 1836 BOUNDARY STATUTE REFERRED TO ABOVE. 

IT WAS AGAINST THIS BACKGROUND THAT PRESIDENT TYLER NEGOTIATED AND
SENT TO THE SENATE THE 1844 TREATY FOR THE ANNEXATION OF TEXAS.  THAT
DOCUMENT PROVIDED: 

"THE REPUBLIC OF TEXAS  ...  CEDES TO THE UNITED STATES ALL ITS
TERRITORIES, TO BE HELD BY THEM IN FULL PROPERTY AND SOVEREIGNTY  ...
."  (FN75) 

ONE OF THE OBJECTIONS MADE TO THE TREATY ON THE FLOOR OF THE SENATE
WAS THAT IT PURPORTED TO CEDE TO THE UNITED STATES ALL THE TERRITORY
CLAIMED BY TEXAS UNDER HER 1836 BOUNDARY ACT, TO LARGE PARTS OF WHICH
TEXAS ALLEGEDLY HAD NO TITLE, THOSE PARTS ASSERTEDLY HAVING ALWAYS BEEN
UNDER THE DOMINATION AND CONTROL OF SPAIN AND MEXICO.  (FN76)  THIS
OBJECTION WAS COUNTERED BY SEVERAL PROPONENTS OF THE TREATY WHO
INSISTED THAT SINCE IT CONTAINED NO DELINEATION OF BOUNDARIES AND SINCE
THE REPUBLIC OF TEXAS WAS REFERRED TO BY A GENERAL DESIGNATION, THE
CLAUSE "ALL ITS TERRITORIES" CEDED ONLY THAT WHICH PROPERLY AND
RIGHTFULLY BELONGED TO TEXAS, ITS BOUNDARY ACT NOTWITHSTANDING. 
(FN77) 

THE PROPONENTS POINTED ALSO TO A LETTER OF INSTRUCTIONS WRITTEN BY
SECRETARY OF STATE CALHOUN TO THE UNITED STATES CHARGE D' AFFAIRES IN
MEXICO A WEEK AFTER THE TREATY WAS SIGNED, WITH ENJOINED THE LATTER, IN
MAKING THE TREATY KNOWN TO MEXICO, "TO ASSURE THE MEXICAN GOVERNMENT
THAT IT IS HIS (THE PRESIDENT'S) DESIRE TO SETTLE ALL QUESTIONS BETWEEN
THE TWO COUNTRIES WHICH MAY GROW OUT OF THIS TREATY, OR ANY OTHER
CAUSE, ON THE MOST LIBERAL AND SATISFACTORY TERMS, INCLUDING THAT OF
BOUNDARY ...  .  THE UNITED STATES HAS TAKEN EVERY PRECAUTION TO MAKE
THE TERMS OF THE TREATY AS LITTLE OBJECTIONABLE TO MEXICO AS POSSIBLE;
AND, AMONG OTHERS, HAS LEFT THE BOUNDARY OF TEXAS, WITHOUT
SPECIFICATION, SO THAT WHAT THE LINE OF BOUNDARY SHOULD BE MIGHT BE AN
OPEN QUESTION, TO BE FAIRLY AND FULLY DISCUSSED AND SETTLED ACCORDING
TO THE RIGHTS OF EACH, AND THE MUTUAL INTEREST AND SECURITY OF THE TWO
COUNTRIES."  (FN78) 

DESPITE THESE CONTROVERSIAL ASPECTS OF THE TREATY, IT IS QUITE
APPARENT THAT ITS SUPPORTERS DESIRED TO PRESS TEXAS' BOUNDARY CLAIMS TO
THE UTMOST DEGREE POSSIBLE.  PRESIDENT TYLER, IN RESPONSE TO THE
SENATE'S REQUEST, TRANSMITTED TO IT A MAP SHOWING THE WESTERN AND
SOUTHWESTERN BOUNDARIES OF TEXAS, AND ACCORDING GENERALLY WITH THE
TEXAS BOUNDARY ACT.  (FN79)  SENATOR WALKER OF MISSISSIPPI, WHILE
INSISTING THAT THE TREATY CEDED "ONLY  ...  THE COUNTRY EMBRACED WITHIN
ITS (TEXAS') LAWFUL BOUNDARIES," ASSERTED THAT IN FACT HER LAWFUL
BOUNDARY EXTENDED TO THE RIO GRANDE, THAT IT HAD EXTENDED THAT FAR WHEN
SHE WAS CEDED AWAY BY THE UNITED STATES IN 1819, THAT THE UNITED STATES
HAD ACQUIESCED IN THOSE BOUNDARIES WHEN IT RECOGNIZED TEXAS IN 1837,
AND THAT MEXICO HAD NEVER PROTESTED THE CONVENTION OF 1838 WHICH
ALLEGEDLY VALIDATED THAT BOUNDARY.  (FN80)  SENATOR BREESE OF ILLINOIS,
WHILE ASSURING THE TREATY'S OPPONENTS THAT THE BOUNDARY WAS LEFT OPEN
TO FUTURE DETERMINATION, AVOWED THAT THE UNITED STATES HAD ACKNOWLEDGED
THE TEXAS BOUNDARIES AS ASSERTED IN HER 1836 STATUTE, AND THAT HE WAS
IN FAVOR OF THE RECOVERY NOT ONLY OF THE OLD PROVINCE OF TEXAS AS IT
EXISTED IN 1803 AND 1819, BUT ALSO "FOR AS MUCH MORE AS THE 'REPUBLIC'
OF TEXAS CAN LAWFULLY CLAIM."  (FN81) SENATORS WOODBURY OF NEW
HAMPSHIRE AND BUCHANAN OF PENNSYLVANIA, WHILE EXPRESSING DOUBT ABOUT
THE VALIDITY OF THE TEXAS BOUNDARY ACT TO THE EXTENT THAT IT CLAIMED
PORTIONS OF NEW MEXICO, THOUGHT IT WAS VALID SO FAR AS IT PRESSED
BEYOND THE NUECES TO THE RIO GRANDE AND OUGHT TO BE MAINTAINED. 
(FN82) 

AFTER THE FAILURE OF THE TREATY, WHICH WOULD HAVE ANNEXED TEXAS AS A
TERRITORY OF THE UNITED STATES, SEVERAL PROPOSALS WERE INTRODUCED IN
THE NEXT SESSION OF CONGRESS FOR THE ANNEXATION OF TEXAS BY A JOINT
RESOLUTION ADMITTING IT IMMEDIATELY AS A STATE.  (FN83)  THE DOUBTS
WHICH HAD BEEN RAISED IN 1844 AS TO THE VALIDITY OF CERTAIN TEXAN
PRETENSIONS TO TERRITORY ON HER WESTERN AND SOUTHWESTERN FRONTIERS WERE
REITERATED DURING CONSIDERATION OF THE VARIOUS RESOLUTIONS, AND
REFERENCE WAS MADE TO THE FACT THAT THE REJECTED TREATY HAD BEEN
ASSAILED AS PURPORTING TO EMBRACE SUCH TERRITORY.  (FN84)  IN 1844,
SUPPORTERS OF THE TREATY HAD CONSIDERED THE GENERAL DESIGNATION "ALL
ITS TERRITORIES" AS CEDING ONLY TERRITORY WHICH RIGHTFULLY, PROPERLY,
OR LAWFULLY BELONGED TO TEXAS, AND AS LEAVING TO THE EXECUTIVE THE DUTY
OF SETTLING THE EXTENT OF THAT TERRITORY BY AMICABLE NEGOTIATION. 
(FN85)  THE TWO CLAUSES OF THE 1845 ANNEXATION RESOLUTION (ANTE, P. 37)
APPEAR, AGAINST THIS BACKGROUND, TO BE AN EXPRESS FORMULATION OF
PRECISELY THE SAME THING.  THE FIRST MAKES IT CLEAR THAT THE GRANT IS
OF INITIALLY UNDEFINED SCOPE, GOVERNED BY THE TRUISM THAT ONLY "THE
TERRITORY PROPERLY INCLUDED WITHIN, AND RIGHTFULLY BELONGING TO THE
REPUBLIC OF TEXAS" IS CEDED.  THE SECOND EXPRESSLY CONTEMPLATES FUTURE
NEGOTIATION TO SETTLE THE EXACT EXTENT OF SUCH TERRITORY, BY MAKING IT
"SUBJECT TO THE ADJUSTMENT BY THIS GOVERNMENT OF ALL QUESTIONS OF
BOUNDARY THAT MAY ARISE WITH OTHER GOVERNMENTS."  IN SHORT, IT IS CLEAR
THAT THE "PROPERLY" AND "RIGHTFULLY" CLAUSE WAS INTENDED NEITHER AS A
LEGISLATIVE DETERMINATION THAT THE ENTIRE AREA CLAIMED BY TEXAS WAS
LEGITIMATELY HERS, NOR TO SERVE, INDEPENDENTLY OF THE "ADJUSTMENT"
CLAUSE, AS A SELF-OPERATING STANDARD FOR MEASURING TEXAS' BOUNDARIES. 
RATHER, THE PRECISE FIXATION OF THE NEW STATE'S BOUNDARIES WAS LEFT TO
FUTURE NEGOTIATIONS WITH MEXICO. 

THE CIRCUMSTANCES SURROUNDING THE RESOLUTION'S PASSAGE MAKE IT CLEAR
THAT THIS WAS THE UNDERSTANDING OF CONGRESS.  CONGRESSIONAL ATTENTION
WAS FOCUSED PRIMARILY ON THE GREAT POLITICAL QUESTIONS ATTENDING
ANNEXATION - PRIMARILY THE EXTENT TO WHICH SLAVERY WOULD BE PERMITTED
IN THE NEW TERRITORY AND THE POSSIBILITY THAT ANNEXATION WOULD EMBROIL
THIS COUNTRY WITH MEXICO - AND THE MATTER OF BOUNDARY RECEIVED LITTLE
CONSIDERATION EXCEPT AS IT WAS RELATED TO THE LARGER ISSUES.  PUBLIC
AGITATION OVER ANNEXATION HAD BECOME SO GREAT THAT SOME BILLS HAD
PROPOSED ANNEXATION VIRTUALLY IN THE ABSTRACT, WITH ALL DETAILS TO BE
WORKED OUT LATER.  (FN86)  ALTHOUGH THE RESOLUTION AS ULTIMATELY PASSED
DID SETTLE THE DETAILS OF CERTAIN MATTERS - NOTABLY SLAVERY, THE TEXAN
DEBT, AND THE MODE OF ANNEXATION - THE MANIFEST PURPORT OF IT AND ALL
THE MANY OTHER ANNEXATION BILLS INTRODUCED WAS TO POSTPONE THE FIXING
OF BOUNDARIES FOR THE SAKE OF ACHIEVING IMMEDIATE ANNEXATION, AND NO
APPARENT IMPORTANCE WAS ATTACHED TO THE PARTICULAR VERBAL FORMULA USED
TO ACHIEVE SUCH POSTPONEMENT.  (FN87)  THE GENERAL TENOR OF OPPOSITION
TO ANNEXATION CHANGED FROM A FEAR THAT THE CESSION COVERED TOO MUCH TO
CRITICISMS OF THE INDEFINITE TREATMENT OF BOUNDARY AND CONCERN OVER
WHETHER TEXAS REALLY OWNED AS MUCH AS SOME SUPPORTERS ASSERTED.  (FN88)
IT IS TRUE THAT ISOLATED STATEMENTS WERE MADE WHICH SEEM TO INDICATE
THAT THE SPEAKER THOUGHT THE RESOLUTIONS WOULD ADMIT TEXAS WITH THE
BOUNDARY DEFINED IN HER 1836 BOUNDARY STATUTE, SUBJECT TO POSSIBLE
SUBSEQUENT READJUSTMENT.  (FN89)  HOWEVER, READ IN CONTEXT, THESE
STATEMENTS MAY HAVE MEANT NO MORE THAN THAT THE UNITED STATES, IN ITS
NEGOTIATIONS WITH MEXICO, WOULD ATTEMPT TO SUSTAIN THE FULL EXTENT OF
TEXAS' DECLARED BOUNDARIES, RATHER THAN THAT THOSE BOUNDARIES WERE IN
FACT PROPER.  BE THAT AS IT MAY, IN VIEW OF THE OVERWHELMING EVIDENCE
OF CONGRESSIONAL UNDERSTANDING AND OF THE EXPRESS LANGUAGE OF THE
ANNEXATION RESOLUTION AS ULTIMATELY PASSED, THE CONCLUSION IS
INESCAPABLE THAT TEXAS, AT LEAST AS TO ITS LAND AREA, WAS ADMITTED WITH
UNDEFINED BOUNDARIES SUBJECT TO LATER SETTLEMENT. 

WHILE THIS CONCLUSION APPEARS UNAVOIDABLE AS REGARDS TEXAS' LAND
BOUNDARIES, A QUESTION DOES EXIST AS TO WHETHER IT APPLIES ALSO TO THE
STATE'S SEAWARD BOUNDARY.  FOR WE ARE UNABLE TO FIND IN THE
CONGRESSIONAL DEBATES EITHER ON THE 1844 TREATY OR THE 1845 ANNEXATION
RESOLUTION A SINGLE INSTANCE OF SIGNIFICANT ADVERTENCE TO THE PROBLEM
OF SEAWARD BOUNDARIES.  FURTHERMORE, A SERIES OF OTHER EVENTS MANIFESTS
A TOTAL LACK OF CONCERN WITH THE PROBLEM.  PRIOR TO TEXAN INDEPENDENCE,
THE UNITED STATES HAD ENTERED INTO SUCCESSIVE TREATIES WITH SPAIN AND
MEXICO, (FN90) WHICH PROVIDED THAT: 

"THE BOUNDARY LINE BETWEEN THE TWO COUNTRIES, WEST OF THE
MISSISSIPPI, SHALL BEGIN ON THE GULPH OF MEXICO, AT THE MOUTH OF THE
RIVER SABINE, IN THE SEA, CONTINUING NORTH ALONG THE WESTERN BANK OF
THAT RIVER  ...  ." 

JUST AFTER TEXAS HAD PROCLAIMED ITS INDEPENDENCE FROM MEXICO, THE TWO
COUNTRIES, ON MAY 14, 1836, CONCLUDED "ARTICLES OF AGREEMENT AND SOLEMN
COMPACT," ACKNOWLEDGING TEXAN INDEPENDENCE AND SETTING ITS BOUNDARY AS
FOLLOWS: 

"THE LINE SHALL COMMENCE AT THE ESTUARY OR MOUTH OF THE RIO GRANDE,
ON THE WESTERN BANK THEREOF, AND SHALL PURSUE THE SAME BANK UP THE SAID
RIVER  ...  ."  (FN91) 

THEREAFTER A MINISTER WAS SENT TO THE UNITED STATES TO SEEK
RECOGNITION AND BROACH THE SUBJECT OF ANNEXATION.  WITH RESPECT TO THE
LATTER, HE WAS INSTRUCTED ON NOVEMBER 18, 1836: 

"AS REGARDS THE BOUNDARIES OF TEXAS  ...  WE CLAIM AND CONSIDER THAT
WE HAVE POSSESSION TO THE RIO BRAVO DEL NORTE.  TAKING THIS AS THE
BASIS, THE BOUNDARY OF TEXAS WOULD BE AS FOLLOWS.  BEGINNING AT THE
MOUTH OF SAID RIVER ON THE GULF OF MEXICO, THENCE UP THE MIDDLE THEREOF
...  ."  (FN92) 

YET A MONTH LATER, ON DECEMBER 19, 1836, THE TEXAN CONGRESS PASSED
THE BOUNDARY ACT WHICH INEXPLICABLY, SO FAR AS WE CAN FIND, PROVIDED
THAT THE BOUNDARY SHOULD RUN ALONG THE GULF OF MEXICO AT THREE LEAGUES
FROM LAND.  (FN93)  QUITE IN CONTRAST, IN THE SUBSEQUENT CONVENTION OF
1838 TO ESTABLISH THE BOUNDARY BETWEEN THE UNITED STATES AND TEXAS,
TEXAS REAFFIRMED THE 1819 AND 1828 TREATIES WITH SPAIN AND MEXICO
REGARDING THAT BOUNDARY AND AGREED TO THE RUNNING AND MARKING OF: 

"THAT PORTION OF THE SAID BOUNDARY WHICH EXTENDS FROM THE MOUTH OF
THE SABINE, WHERE THAT RIVER ENTERS THE GULPH OF MEXICO, TO THE RED
RIVER."  (FN94) 

AGAIN, AS PREVIOUSLY MENTIONED (NOTE 79, ANTE), DURING ITS
CONSIDERATION OF THE UNRATIFIED TREATY OF APRIL 12, 1844, THE SENATE
REQUESTED PRESIDENT TYLER TO TRANSMIT ANY INFORMATION HE POSSESSED
CONCERNING THE SOUTHERN, SOUTHWESTERN,, AND WESTERN BOUNDARIES OF
TEXAS.  ON APRIL 26, 1844, HE SENT A MAP AND A MEMOIR BY ITS COMPILER. 
THE MEMOIR FLAGRANTLY MISQUOTED THE 1836 BOUNDARY ACT BY DESCRIBING THE
TEXAS BOUNDARY AS "'BEGINNING AT THE MOUTH OF THE RIO GRANDE, THENCE UP
THE PRINCIPAL STREAM OF SAID RIVER  ...  .'"  (FN95) 

THE FOREGOING CIRCUMSTANCES MAKE IT ABUNDANTLY PLAIN THAT AT THE TIME
TEXAS WAS ADMITTED TO THE UNION, ITS SEAWARD BOUNDARY, THOUGH EXPRESSLY
CLAIMED AT THREE LEAGUES IN THE 1836 TEXAS BOUNDARY ACT, HAD NOT BEEN
THE SUBJECT OF ANY SPECIFIC CONCERN IN THE TRAIN OF EVENTS LEADING TO
ANNEXATION. 

GIVEN THIS STATE OF AFFAIRS, WE MUST INITIALLY DISPOSE OF AN ARGUMENT
MADE BY TEXAS.  THE STATE URGES, IN EFFECT, THAT WHETHER OR NOT ITS
MARITIME BOUNDARY WAS ACTUALLY CONSIDERED BY THE CONGRESS OR THE
EXECUTIVE DURING THE COURSE OF THE ANNEXATION PROCEEDINGS, IT WAS
INCUMBENT UPON THE UNITED STATES TO PROTEST OR REJECT IN SOME MANNER
TEXAS' CLAIM IN THIS REGARD, AND THAT FAILURE TO DO SO CONSTITUTED IN
LAW A VALIDATION OR RATIFICATION OF THAT BOUNDARY CLAIM UPON
ADMISSION.  WHATEVER THE MERIT OF THIS PROPOSITION MAY BE IN THE
ABSTRACT, THE CONTROLLING FACTOR FOR PURPOSES OF THIS CASE MUST BE THE
TERMS OF THE JOINT RESOLUTION OF ANNEXATION.  THERE IS, INDEED, A
STRONG ARGUMENT THAT THE "PROPERLY," "RIGHTFULLY," AND "ADJUSTMENT"
CLAUSES OF THAT RESOLUTION SHOULD BE READ AS APPLYING ONLY TO THE LAND
BOUNDARIES DISPUTED WITH MEXICO, WHICH GAVE RISE TO THOSE
QUALIFICATIONS AND THAT THE RESOLUTION WAS MEANT TO VALIDATE ANY
BOUNDARY ASSERTED BY TEXAS WITHOUT PROTEST.  HOWEVER, IN LIGHT OF THE
FACT THAT THE LANGUAGE EMPLOYED IN THE RESOLUTION IS OF GENERAL
APPLICABILITY, WE SHOULD HESITATE TO LIMIT ITS EFFECT BY READING INTO
IT SUCH AN ADDITIONAL UNEXPRESSED TEST RESPECTING THE EXTENT OF TEXAS'
BOUNDARIES.  WE THINK THAT ITS LANGUAGE MUST BE TAKEN AS APPLYING TO
TEXAS' MARITIME BOUNDARY AS WELL AS TO ITS LAND BOUNDARY. 

ON THIS BASIS AN ARGUMENT OF THE GOVERNMENT MUST NOW BE MET.  IT IS
CONTENDED THAT SINCE TEXAS WAS ADMITTED TO THE UNION WITH ITS MARITIME
BOUNDARY NOT YET SETTLED, UNITED STATES FOREIGN POLICY ON THE EXTENT OF
TERRITORIAL WATERS, TO WHICH TEXAS WAS ADMITTEDLY SUBJECT FROM THE
MOMENT OF ADMISSION, AUTOMATICALLY UPON ADMISSION OPERATED TO FIX ITS
SEAWARD BOUNDARY AT THREE MILES.  THIS CONTENTION MUST BE REJECTED.  AS
WE HAVE NOTED, THE BOUNDARIES CONTEMPLATED BY THE SUBMERGED LANDS ACT
ARE THOSE FIXED BY VIRTUE OF CONGRESSIONAL POWER TO ADMIT NEW STATES
AND TO DEFINE THE EXTENT OF THEIR TERRITORY, NOT BY VIRTUE OF THE
EXECUTIVE POWER TO DETERMINE THIS COUNTRY'S OBLIGATIONS VIS-A-VIS
FOREIGN NATIONS.  ANTE, PP. 30-36.  IT MAY INDEED BE THAT THE
EXECUTIVE, IN THE EXERCISE OF ITS POWER, CAN LIMIT THE ENJOYMENT OF
CERTAIN INCIDENTS OF A CONGRESSIONALLY CONFERRED BOUNDARY, BUT IT DOES
NOT FIX THAT BOUNDARY.  IF, AS IN THE CASE OF TEXAS, CONGRESS EMPLOYES
AN UNCERTAIN STANDARD IN FIXING A STATE'S BOUNDARIES, WE MUST
NEVERTHELESS ENDEAVOR TO APPLY THAT STANDARD TO THE HISTORICAL EVENTS
SURROUNDING ADMISSION.    WE ARE BROUGHT BACK, THEN, TO A TWOFOLD
INQUIRY:  FIRST, WHETHER THE THREE-LEAGUE MARITIME BOUNDARY ASSERTED BY
THE REPUBLIC OF TEXAS EMBRACED AN AREA WHICH WAS "PROPERLY INCLUDED
WITHIN, AND RIGHTFULLY BELONGING TO" THE REPUBLIC.  SECOND, WHETHER
SUCH A BOUNDARY WAS EVER FIXED FOR THE STATE OF TEXAS PURSUANT TO THE
POWER RESERVED BY CONGRESS TO ADJUST "ALL QUESTIONS OF BOUNDARY THAT
MAY ARISE WITH OTHER GOVERNMENTS."  AS WE HAVE OBSERVED, IT IS EVIDENT
THAT THE FIRST CLAUSE, INDEPENDENTLY OF THE SECOND, WAS NOT INTENDED TO
OPERATE AS A SELF-EXECUTING STANDARD FOR DETERMINING THE DISPUTED
WESTERN AND SOUTHWESTERN BOUNDARIES OF TEXAS.  TO ATTEMPT TO APPLY THAT
CLAUSE AS FIXING THE EXTENT OF TEXAS' MARITIME BOUNDARY, IMMEDIATELY
UPON ADMISSION TO THE UNION, NO LESS THAN IN SO FIXING ITS LAND
BOUNDARIES, WOULD BE ILLUSORY AT BEST.  THE PARTIES DEVOTE CONSIDERABLE
DISCUSSION TO THE VALIDITY OR INVALIDITY OF THE ASSERTED THREE-LEAGUE
MARTIME BOUNDARY UNDER INTERNATIONAL LAW.  IT IS TRUE THAT THE
PROPRIETY OF A NATION'S SEAWARD BOUNDARY MUST BE VIEWED IN THE CONTEXT
OF ITS OBLIGATIONS VIS-A-VIS THE FAMILY OF NATIONS.  BUT SURELY THE
JOINT RESOLUTION OF ANNEXATION COULD NOT HAVE BEEN MEANT TO IMPORT SUCH
AN ELUSIVE INQUIRY INTO THE DETERMINATION OF TEXAS' MARITIME BOUNDARY,
ESPECIALLY WHEN THAT QUESTION WAS NEVER EVEN CONSIDERED AND WHEN THE
RESOLUTION WAS EXPRESSLY DRAWN TO LEAVE UNDEFINED THE LAND BOUNDARIES
WHICH DID RECEIVE CONSIDERATION.  AND WE ARE UNABLE TO SAY THAT
CONGRESS MIGHT HAVE DEEMED THE THREE-LEAGUE MARITIME BOUNDARY "PROPER"
OR "RIGHTFUL" IN SOME OTHER SENSE.  IT IS NECESSARY, THEREFORE, TO LOOK
TO OTHER EVENTS TO ASCERTAIN WHERE THE TEXAN MARITIME BOUNDARY WAS
FIXED PURSUANT TO THE JOINT RESOLUTION OF ANNEXATION. 

CONGRESS' FAILURE TO CARRY INTO THE ANNEXATION RESOLUTION THE
BOUNDARIES FIXED BY THE 1836 TEXAS BOUNDARY ACT DID NOT, OF COURSE,
FORECLOSE THE POSSIBILITY THAT THE STATE'S BOUNDARY MIGHT ULTIMATELY BE
FIXED IN ACCORDANCE WITH THAT STATUTE.  IT IS SIGNIFICANT IN THIS
REGARD TO NOTE THE OPINIONS VENTURED IN CONGRESS ON THE PROBABLE
SETTLEMENT OF THE BOUNDARY WITH MEXICO WHICH WOULD OCCUR SUBSEQUENT TO
ANNEXATION.  ONE GROUP ASSERTED THAT THE TEXAN CLAIMS TO THE RIO
GRANDE, PARTICULARLY THE PORTION WHICH ENCOMPASSED NEW MEXICO, COULD
NOT POSSIBLY BE MAINTAINED.  (FN96) BUT SUCH REMARKS WERE MADE
PRIMARILY BY OPPONENTS OF ANNEXATION AND WERE INTENDED AS WARNINGS
AGAINST ASSUMING THAT ENOUGH LAND WOULD BE INCLUDED IN THE CESSION TO
PAY THE TEXAN DEBT OR TO FORM FREE STATES.  MUCH MORE SIGNIFICANT THAN
OPINIONS AS TO WHERE THE BOUNDARY MIGHT ULTIMATELY BE FIXED ARE
OBSERVATIONS MADE REGARDING THE BASIS ON WHICH THE BOUNDARY QUESTION
MIGHT BE PRESSED AGAINST MEXICO.  SUPPORTERS AND OPPONENTS ALIKE
ACKNOWLEDGED THAT THE UNITED STATES WOULD PROBABLY NEGOTIATE ON THE
BASIS OF THE TEXAS BOUNDARIES AS DECLARED IN HER OWN BOUNDARY STATUTE,
EVEN THOUGH SOME PARTS OF THAT BOUNDARY MIGHT NOT BE MAINTAINABLE. 
SOME THOUGHT THIS WAS SO BECAUSE THOSE BOUNDARIES WERE IN FACT HER
PROPER AND RIGHTFUL BOUNDARIES.  (FN97)  OTHERS THOUGHT IT WAS SO
BECAUSE THE UNITED STATES, HAVING ACQUIESCED IN THE BOUNDARY ACT AFTER
RECEIVING NOTICE OF IT, WAS BOUND, UPON ADMITTING TEXAS TO THE UNION,
TO MAINTAIN THOSE CLAIMS ON HER BEHALF.  (FN98)  WHATEVER THE REASONS
GIVEN, IT IS CLEAR THAT CONGRESS, ALTHOUGH IT PURPOSELY REFUSED TO
SETTLE THE QUESTION, ANTICIPATED THAT THE TEXAS BOUNDARY ACT SHOULD AND
WOULD BE INSISTED ON TO THE GREATEST DEGREE POSSIBLE IN NEGOTIATIONS
WITH MEXICO. 

THIS PREDICTION WAS BORNE OUT BY SUBSEQUENT EVENTS.  AFTER THE
ANNEXATION RESOLUTION HAD BEEN PASSED AND TRANSMITTED TO TEXAS FOR ITS
ASSENT, THE MEXICAN ARMY THREATENED TO CROSS THE RIO GRANDE AND INVADE
TEXAS.  ON JUNE 15, 1845, PRESIDENT POLK WROTE AN INFORMAL AND
CONFIDENTIAL LETTER TO THE UNITED STATES CHARGE D'AFFAIRES IN TEXAS
WHICH INDICATED THAT POLK INTENDED TO REPEL SUCH AN INVASION AND TO
MAINTAIN THE TEXAN CLAIM AT LEAST TO THE LOWER PORTION OF THE RIO
GRANDE: 

"IN THE CONTINGENCY  ...  THAT A MEXICAN ARMY SHOULD CROSS - THE RIO
GRANDE  ...  THEN IN MY JUDGMENT, - THE PUBLIC NECESSITY FOR OUR
INTERPOSITION - WILL BE SUCH, - THAT WE SHOULD NOT STAND - QUIETLY BY -
AND PERMIT - AN INVADING FOREIGN ENEMY - EITHER TO OCCUPY OR DEVASTATE
ANY PORTION OF THE TEXIAN TERRITORY.  OF COURSE I WOULD MAINTAIN THE
TEXAN TITLE TO THE EXTENT WHICH SHE CLAIMS IT TO BE, AND NOT PERMIT AN
INVADING ENEMY - TO OCCUPY A FOOT OF THE SOIL EAST OF THE RIO GRANDE." 
ANDREW DONELSON PAPERS (LIBRARY OF CONGRESS), VOL. 10, FOLIOS 2068
2070. 

NINE DAYS BEFORE, POLK HAD MANIFESTED A SIMILAR INTENTION IN A LETTER
TO SAM HOUSTON, FORMER PRESIDENT OF THE REPUBLIC OF TEXAS AND AN
INFLUENTIAL SPOKESMAN FOR ANNEXATION: 

"YOU MAY HAVE NO APPREHENSIONS IN REGARD TO YOUR BOUNDARY.  TEXAS
ONCE A PART OF THE UNION AND WE WILL MAINTAIN ALL YOUR RIGHTS OF
TERRITORY AND WILL NOT SUFFER THEM TO BE SACRIFICED."  POLK PAPERS
(LIBRARY OF CONGRESS)(1845), VOL. 84. 

THE ATTITUDE OF THE EXECUTIVE AT THIS TIME TOWARD THE TEXAN BOUNDARY
IS MADE EVEN MORE EXPLICIT BY AN ACCOUNT OF AN INTERVIEW BETWEEN THE
UNITED STATES CHARGE D'AFFAIRES IN TEXAS AND SAM HOUSTON, WRITTEN BY
THE FORMER TO HIS SUPERIOR, THE SECRETARY OF STATE: 

"I STATED AT LARGE THE GENERAL POLICY OF THE UNITED STATES AS
JUSTIFYING NO DOUBT OF THE TENACITY WITH WHICH THEY WOULD MAINTAIN NOT
ONLY THE PRESENT CLAIM OF TEXAS, BUT REENFORCE IT WITH THE PREEXISTING
ONE DERIVED FROM FRANCE IN 1803  ...  . 

"I BROUGHT ALSO TO HIS VIEW THE FACT THAT THIS LATTER FEATURE OF THE
PROPOSALS DID NOT INTERFERE WITH THE RIGHT OF TEXAS TO DEFINE HER
LIMITS AS SHE CLAIMED THEM, IN HER STATUTES - THAT THE SPECIFICATION OF
THE RIO GRANDE AS THE WESTERN BOUNDARY WOULD BE PROPER ENOUGH AS
SHEWING THE EXTENT TO WHICH THE UNITED STATES WOULD MAINTAIN HER CLAIM
AS FAR AS IT COULD BE DONE WITHOUT MANIFEST INJUSTICE TO MEXICO, AND TO
THE PORTION OF THE INHABITANTS OF MEXICO THAT HAD NEVER YET
ACKNOWLEDGED THE JURISDICTION OF TEXAS - THAT PRACTICALLY THE UNITED
STATES WOULD TAKE THE PLACE OF TEXAS, AND WOULD BE OBLIGATED TO DO ALL,
IN THIS RESPECT, THAT TEXAS COULD DO, WERE SHE TO REMAIN A SEPARATE
NATION."  (FN99) 

AFTER TEXAS CONSENTED TO ANNEXATION AND CONGRESS HAD FINALLY ADMITTED
HER TO STATEHOOD, THE MEXICAN ARMY CROSSED THE RIO GRANDE AND DECLARED
WAR UPON THE UNITED STATES.  ON MAY 11, 1846, PRESIDENT POLK CALLED ON
CONGRESS TO DECLARE WAR AGAINST MEXICO.  HE SAID IN PART: 

"TEXAS, BY THE FINAL ACTION OF OUR CONGRESS, HAD BECOME AN INTEGRAL
PART OF OUR UNION.  THE CONGRESS OF TEXAS, BY ITS ACT OF DECEMBER 19,
1836, HAD DECLARED THE RIO DEL NORTE TO BE THE BOUNDARY OF THAT
REPUBLIC.  ITS JURISDICTION HAD BEEN EXTENDED AND EXERCISED BEYOND THE
NUECES.  THE COUNTRY BETWEEN THAT RIVER AND THE DEL NORTE HAD BEEN
REPRESENTED IN THE CONGRESS AND IN THE CONVENTION OF TEXAS; HAD THUS
TAKEN PART IN THE ACT OF ANNEXATION ITSELF; AND IS NOW INCLUDED WITHIN
ONE OF OUR CONGRESSIONAL DISTRICTS.  OUR OWN CONGRESS HAD, MOREOVER,
WITH GREAT UNANIMITY, BY THE ACT APPROVED DECEMBER 31, 1845, RECOGNIZED
THE COUNTRY BEYOND THE NUECES AS A PART OF OUR TERRITORY, BY INCLUDING
IT WITHIN OUR OWN REVENUE SYSTEM; AND A REVENUE OFFICER, TO RESIDE
WITHIN THAT DISTRICT, HAS BEEN APPOINTED, BY AND WITH THE ADVICE AND
CONSENT OF THE SENATE.  IT BECAME, THEREFORE, OF URGENT NECESSITY TO
PROVIDE FOR THE DEFENCE OF THAT PORTION OF OUR COUNTRY."  H.R. EXEC.
DOC. NO. 60, 30TH CONG., 1ST SESS. 4, 7. 

IN A LATER MESSAGE TO CONGRESS ON DECEMBER 8, 1846, POLK MANIFESTED
THE SAME DISPOSITION.  H.R. EXEC. DOC. NO. 4, 29TH CONG., 2D SESS. 13
14.  AND ON DECEMBER 7, 1847, HE EXPLAINED THAT THE UNITED STATES HAD
REJECTED A TREATY PROPOSAL BY MEXICO BECAUSE: 

"IT REQUIRED THE UNITED STATES TO DISMEMBER TEXAS, BY SURRENDERING TO
MEXICO THAT PART OF THE TERRITORY OF THAT STATE LYING BETWEEN THE
NUECES AND THE RIO GRANDE, INCLUDED WITHIN HER LIMITS BY HER LAWS WHEN
SHE WAS AN INDEPENDENT REPUBLIC, AND WHEN SHE WAS ANNEXED TO THE UNITED
STATES AND ADMITTED BY CONGRESS AS ONE OF THE STATES OF OUR UNION." 
H.R. EXEC. DOC. NO. 8, 30TH CONG., 1ST SESS. 9. 

HOWEVER, THERE IS ABSOLUTELY NOTHING TO INDICATE THAT THE EXECUTIVE,
ANY MORE THAN THE CONGRESS, WAS INTERESTED IN, OR WAS AT ALL AWARE OF
ANY PROBLEM PRESENTED BY, THE SEAWARD BOUNDARY OF TEXAS AS CLAIMED IN
ITS 1836 BOUNDARY ACT.  THE GOVERNMENT URGES, BY WAY OF EXPLANATION,
THAT THE UNITED STATES HAD, BY THIS TIME, FIRMLY ESTABLISHED A POLICY
OF CLAIMING NO MORE THAN THREE MILES OF TERRITORIAL WATERS.  BUT THE
EXECUTIVE'S RESPONSIBILITY FOR FIXING THE TEXAN BOUNDARY DERIVED FROM A
DELEGATION OF CONGRESSIONAL POWER TO ADMIT NEW STATES, NOT FROM THE
EXECUTIVE'S OWN POWER TO FIX THE EXTENT OF TERRITORIAL WATERS.  AS WE
HAVE ALREADY POINTED OUT, THE TWO POWERS CAN OPERATE INDEPENDENTLY, AND
ONLY THE FIRST IS DETERMINATIVE IN THIS CASE.  TO THE EXTENT IT MAY BE
ARGUED THAT THE EXECUTIVE WOULD NATURALLY TAKE ACCOUNT OF ITS OWN
POLICY TOWARD TERRITORIAL WATERS IN FIXING THE CONGRESSIONALLY MANDATED
BOUNDARY, THE DATA PRESENTED TO US ARE UTTERLY DEVOID OF ANY SUGGESTION
THAT SUCH WAS THE CASE.  ON THE CONTRARY, IT IS EVIDENT THAT THE
OVERWHELMING CONCERN OF THE PRESIDENT AND HIS SUBORDINATES WAS TO
MAINTAIN TO THE GREATEST EXTENT POSSIBLE THE LAND BOUNDARIES CLAIMED BY
TEXAS AND DISPUTED WITH MEXICO, AS ANTICIPATED BY CONGRESS.  THE
SETTLEMENT OF THAT MATTER REMAINED FOR FUTURE EVENTS, TO WHICH WE NOW
TURN. 

ON APRIL 15, 1847, NICHOLAS P. TRIST WAS APPOINTED COMMISSIONER TO
MEXICO TO NEGOTIATE A PEACE TREATY.  AMONG HIS INSTRUCTIONS WAS A
PROJET OF THE PROPOSED TREATY, WHICH PROVIDED: 

"THE BOUNDARY LINE BETWEEN THE TWO REPUBLICS SHALL COMMENCE IN THE
GULF OF MEXICO THREE LEAGUES FROM LAND OPPOSITE THE MOUTH OF THE RIO
GRANDE FROM THENCE UP THE MIDDLE OF THAT RIVER  ...  ."  5 MILLER,
TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA
(1937), 265. 

THIS LANGUAGE WAS INCORPORATED VERBATIM INTO ARTICLE V OF THE TREATY
OF GUADALUPE HIDALGO AS FINALLY SIGNED ON FEBRUARY 2, 1848, 9 STAT.
922, WHICH FIXED THE BOUNDARY BETWEEN THE UNITED STATES AND MEXICO FROM
THE GULF OF MEXICO TO THE PACIFIC COAST.  (FN100)  WHILE THERE WAS
CONSIDERABLE DISAGREEMENT IN THE NEGOTIATIONS OVER THE VARIOUS LAND
BOUNDARIES, THE PROPOSALS OF BOTH PARTIES NEVER DEPARTED FROM THE THREE
LEAGUE PROVISION.  SEE 5 MILLER, OP. CIT., SUPRA, AT 270, 288, 299,
315, 317, 325. 

TRIST STATED IN HIS NOTES THAT ONE OBJECT OF INSTRUCTIONS GIVEN TO
HIS PREDECESSOR, SUBSTANTIALLY IDENTICAL IN RELEVANT PART TO THOSE
GIVEN HIM WAS TO GET MEXICO TO AGREE TO A BOUNDARY WHICH: 

"WOULD THROW WITHIN THE TERRITORY OF THE UNITED STATES THE COUNTRY
LYING EAST OF THE RIO GRANDE.  OR, AS SAID OBJECT STANDS IN SAID
INSTRUCTIONS, SPECIFICALLY STATED & EXPRESSED, IT WAS THE OBJECT OF
PREVAILING UPON MEXICO 'TO AGREE THAT THE LINE SHALL BE ESTABLISHED
ALONG THE BOUNDARY DEFINED BY THE ACT OF CONGRESS OF TEXAS, APPROVED
DECEMBER 19, 1836, TO WIT:  BEGINNING AT "THE MOUTH OF THE RIO GRANDE;
THENCE UP THE PRINCIPAL STREAM OF SAID RIVER  ...  ."'"  (FN101) 

WHILE THIS MISQUOTATION OF THE TEXAS BOUNDARY ACT AGAIN DEMONSTRATES
TOTAL INSENSITIVITY TO ANY PROBLEM OF A SEAWARD BOUNDARY, THE PASSAGE
DOES INDICATE THAT THE UNITED STATES WAS ATTEMPTING TO FOLLOW THE TEXAN
STATUTE IN NEGOTIATING THE BOUNDARY.  (FN102)  MORE IMPORTANT FOR THE
PURPOSES OF THIS CASE ARE THE CIRCUMSTANCES THAT THE THREE-LEAGUE
PROVISION WAS MADE AN EXPRESS PART OF THE TREATY OF GUADALUPE-HIDALGO,
THAT SUCH BOUNDARY WAS REAFFIRMED FIVE YEARS LATER IN THE GADSDEN
TREATY OF DECEMBER 30, 1853 (FN103) AND SUBSEQUENTLY IN A LONG LINE OF
INTERNATIONAL CONVENTIONS, (FN104) AND THAT IT HAS NEVER BEEN
REPUDIATED. 

THE TREATY UNQUESTIONABLY ESTABLISHED THE RIO GRANDE FROM NEW MEXICO
TO THE GULF AS THE LAND BOUNDARY NOT ONLY OF THE UNITED STATES BUT ALSO
OF TEXAS, SINCE THE EXECUTIVE, ACTING PURSUANT TO THE POWER GIVEN BY
CONGRESS TO "ADJUST" TEXAS' BOUNDARIES IN DEALINGS WITH OTHER NATIONS,
PRESSED THAT BOUNDARY AGAINST MEXICO ON THE THEORY THAT IT EMBRACED
TERRITORY RIGHTFULLY BELONGING TO THE STATE OF TEXAS.  THERE IS NOTHING
TO INDICATE THAT THE EXTENSION OF THAT BOUNDARY THREE LEAGUES INTO THE
GULF, PURSUANT TO THE VERY SAME BOUNDARY ACT, WAS TREATED ON ANY
DIFFERENT BASIS.  THE PORTION OF THE BOUNDARY EXTENDING INTO THE GULF,
LIKE THE REST OF THE LINE, WAS INTENDED TO SEPARATE THE TERRITORY OF
THE TWO COUNTRIES, AND TO RECOGNIZE THAT THE MARITIME TERRITORY OF
TEXAS EXTENDED THREE LEAGUES SEAWARD. 

WHETHER THE TREATY BE DEEMED TO CONSTITUTE AN EXERCISE OF THE POWER
TO ADJUST THE BOUNDARIES LEFT UNSETTLED BY THE 1845 JOINT RESOLUTION OF
ANNEXATION, OR A POST HOC RECOGNITION OF A SEAWARD BOUNDARY WHICH WAS
ACTUALLY FIXED FOR TEXAS UPON ITS ADMISSION IN 1845, OR A FIXATION OF
BOUNDARIES WHICH RELATED BACK TO THE TIME OF ADMISSION, IS OF NO
MOMENT.  ALTHOUGH THE SUBMERGED LANDS ACT REQUIRES THAT A STATE'S
BOUNDARY IN EXCESS OF THREE MILES MUST HAVE EXISTED "AT THE TIME" OF
ITS ADMISSION, THAT PHRASE WAS INTENDED, IN SUBSTANCE, TO DEFINE A
STATE'S PRESENT BOUNDARIES BY REFERENCE TO THE EVENTS SURROUNDING ITS
ADMISSION.  AS SUCH, IT CLEARLY INCLUDES A BOUNDARY WHICH WAS FIXED
PURSUANT TO A CONGRESSIONAL MANDATE ESTABLISHING THE TERMS OF THE
STATE'S ADMISSION, EVEN THOUGH THE FINAL EXECUTION OF THAT MANDATE
OCCURRED A SHORT TIME SUBSEQUENT TO ADMISSION. 

THE GOVERNMENT CONTENDS THAT THE TREATY OF GUADALUPE HIDALGO IS OF NO
SIGNIFICANCE IN THIS CASE BECAUSE THE LINE DRAWN THREE LEAGUES OUT TO
SEA WAS NOT MEANT TO SEPARATE TERRITORY OF THE TWO COUNTRIES, BUT ONLY
TO SEPARATE THEIR RIGHTS TO EXERCISE CERTAIN TYPES OF
"EXTRATERRITORIAL" JURISDICTION WITH RESPECT TO CUSTOMS AND SMUGGLING. 
WE BELIEVE THE CONCLUSION IS CLEAR THAT WHAT THE LINE, DENOMINATED A
"BOUNDARY" IN THE TREATY ITSELF, SEPARATES IS TERRITORY OF THE
RESPECTIVE COUNTRIES.  NO REFERENCE TO "EXTRATERRITORIAL" JURISDICTION
IS MADE IN THE TREATY, AND NO SUCH CONCEPT CAN BE GLEANED FROM THE
CONTEXT OF THE NEGOTIATIONS.  BEING BASED ON THE THREE-LEAGUE PROVISION
OF THE 1836 TEXAS BOUNDARY ACT, WHICH ITSELF DENOTES A TERRITORIAL
BOUNDARY, THE OBVIOUS AND COMMON-SENSE MEANING OF THE ANALOGOUS TREATY
PROVISION IS THAT IT SEPARATES THE MARITIME TERRITORY OF THE UNITED
STATES AND MEXICO.    THE GOVERNMENT RELIES ON CERTAIN DIPLOMATIC
CORRESPONDENCE AS EVIDENCING A SUBSEQUENT CONSTRUCTION OF THE TREATY
CONTRARY TO THIS CONCLUSION.  IN 1848, WHEN GREAT BRITAIN PROTESTED THE
THREE-LEAGUE PROVISION OF THE TREATY, BOTH THE UNITED STATES AND MEXICO
REPLIED THAT THE TREATY DEFINED RIGHTS ONLY AS BETWEEN THE TWO
COUNTRIES AND WAS NOT INTENDED TO IMPAIR THE RIGHTS OF ANY OTHER NATION
IN THE MARGINAL SEA.  (FN105)  IN 1875, SECRETARY OF STATE HAMILTON
FISH MADE A SIMILAR EXPLANATION TO LORD DERBY OF ENGLAND, BUT ADDED A
NEW CONTENTION THAT THE BOUNDARY PROVISION WAS "PROBABLY" SUGGESTED BY
THE ACTS OF CONGRESS PERMITTING REVENUE OFFICIALS TO BOARD VESSELS
BOUND FOR THE UNITED STATES WITHIN FOUR LEAGUES OF THE COAST.  (FN106)
AND IN 1936, AFTER MEXICO HAD ASSERTED A THREE-LEAGUE BELT OF
TERRITORIAL WATER ALONG ITS ENTIRE COAST, THE UNITED STATES, IN DENYING
THAT THE TREATY GAVE MEXICO SUCH A RIGHT, ADOPTED BOTH RATIONALES
RELIED ON IN 1875, AND IN ADDITION CONTENDED THAT THE BOUNDARY
PROVISION DID RECOGNIZE THE TERRITORY OF THE TWO COUNTRIES AS EXTENDING
THREE LEAGUES FROM THE COAST, BUT ONLY IN THE "ONE AREA" ADJACENT TO
THE INTERNATIONAL BOUNDARY.  (FN107)  IT SEEMS EVIDENT FROM THE
SHIFTING AND UNCERTAIN GROUNDS UPON WHICH THESE PRONOUNCEMENTS RELIED
THAT THEY SHOULD BE TAKEN AS REFLECTING NO MORE THAN AFTER-THE-FACT
ATTEMPTS TO LIMIT THE EFFECT OF A PROVISION WHICH PATENTLY PURPORTED TO
ESTABLISH A THREE-LEAGUE TERRITORIAL BOUNDARY, SO AS TO BRING IT INTO
ACCORD WITH THIS COUNTRY'S INTERNATIONAL OBLIGATIONS.  UNDOUBTEDLY THE
EXECUTIVE HAS THE RIGHT TO LIMIT THE EFFECT TO BE ACCORDED A TREATY
PROVISION IN ITS DEALINGS WITH OTHER COUNTRIES.  BUT WHERE, AS HERE,
THAT TREATY TOUCHES UPON RELATIONSHIPS BETWEEN THE NATION AND A STATE
CREATED PURSUANT TO A CONGRESSIONAL MANDATE, THE ORIGINAL PURPORT OF
THE TREATY MUST CONTROL, AND THE DEALINGS OF THE EXECUTIVE WITH OTHER
NATIONS CANNOT AFFECT THE STATE'S RIGHTS IN ANY WAY AS A DOMESTIC
MATTER. 

WE CONCLUDE, THEREFORE, THAT PURSUANT TO THE ANNEXATION RESOLUTION OF
1845, TEXAS' MARITIME BOUNDARY WAS ESTABLISHED AT THREE LEAGUES FROM
ITS COAST FOR DOMESTIC PURPOSES.  OF COURSE, WE INTIMATE NO VIEW ON THE
EFFECTIVENESS OF THIS BOUNDARY AS AGAINST OTHER NATIONS.  ACCORDINGLY,
TEXAS IS ENTITLED TO A GRANT OF THREE LEAGUES FROM HER COAST UNDER THE
SUBMERGED LANDS ACT. 

            III. 

                             THE PARTICULAR CLAIMS OF LOUISIANA. 

LOUISIANA'S CLAIMS, LIKE THOSE OF TEXAS, ARE BASED ON THE CONTENTION
THAT IT HAD A THREE-LEAGUE MARITIME BOUNDARY WHICH EXISTED "AT THE
TIME" IT WAS ADMITTED TO THE UNION, AND MUST BE JUDGED BY THE SAME
STANDARDS.  THE ACT OF CONGRESS ADMITTING THE STATE TO THE UNION IN
1812 (FN107A) DESCRIBED THE NEW STATE'S BOUNDARIES AS FOLLOWS: 

"BEGINNING AT THE MOUTH OF THE RIVER SABINE; THENCE, BY A LINE TO BE
DRAWN ALONG THE MIDDLE OF SAID RIVER, INCLUDING ALL ISLANDS TO THE
THIRTY-SECOND DEGREE OF LATITUDE; THENCE, DUE NORTH, TO THE
NORTHERNMOST PART OF THE THIRTY-THIRD DEGREE OF NORTH LATITUDE; THENCE,
ALONG THE SAID PARALLEL OF LATITUDE, TO THE RIVER MISSISSIPPI; THENCE,
DOWN THE SAID RIVER, TO THE RIVER IBERVILLE; AND FROM THENCE, ALONG THE
MIDDLE OF THE SAID RIVER, AND LAKES MAUREPAS AND PONCHARTRAIN, TO THE
GULF OF MEXICO; THENCE, BOUNDED BY THE SAID GULF, TO THE PLACE OF
BEGINNING, INCLUDING ALL ISLANDS WITHIN THREE LEAGUES OF THE COAST  ...
." 

LOUISIANA CLAIMS THAT THE CONCLUDING CLAUSE "INCLUDING ALL ISLANDS
WITHIN THREE LEAGUES OF THE COAST" SHOULD BE READ TO MEAN THAT CONGRESS
FIXED AS THE STATE'S SEAWARD BOUNDARY A LINE THREE LEAGUES FROM ITS
COAST, AND THAT SUCH A READING IS SUPPORTED BOTH BY THE STATE'S
PREADMISSION HISTORY AND BY SUBSEQUENT EVENTS.  THE GOVERNMENT, ON THE
OTHER HAND, INSISTS THAT THE PHRASE INCLUDES ONLY THE ISLANDS
THEMSELVES LYING WITHIN THREE LEAGUES OF THE COAST, AND NOT ALL WATERS
WITHIN THAT DISTANCE AS WELL.  (FN108)

                            1.  THE ACT OF ADMISSION ON ITS FACE. 

THE LANGUAGE OF THE ACT ITSELF APPEARS CLEARLY TO SUPPORT THE
GOVERNMENT'S POSITION.  THE BOUNDARY LINE IS DRAWN DOWN THE MIDDLE OF
THE RIVER IBERVILLE "TO THE GULF OF MEXICO," NOT INTO IT FOR ANY
DISTANCE.  THE STATE IS THENCE TO BE BOUNDED "BY THE SAID GULF," NOT BY
A LINE LOCATED THREE LEAGUES OUT IN THE GULF, "TO THE PLACE OF
BEGINNING," WHICH IS DESCRIBED AS "AT THE MOUTH OF THE RIVER SABINE,"
NOT SOMEWHERE BEYOND THE MOUTH IN THE GULF.  AND WHILE "ALL ISLANDS"
WITHIN THREE LEAGUES OF THE COAST WERE TO BE INCLUDED, THERE IS NO
SUGGESTION THAT ALL WATERS WITHIN THREE LEAGUES WERE TO BE EMBRACED AS
WELL.  IN SHORT, THE LANGUAGE OF THE ACT EVIDENTLY CONTEMPLATED NO
TERRITORIAL SEA WHATEVER. 

SIMILAR LANGUAGE WAS EMPLOYED IN THE TREATY OF PARIS OF SEPTEMBER 3,
1783, BY WHICH GREAT BRITAIN RECOGNIZED THE INDEPENDENCE OF THE UNITED
STATES.  (FN109)  AFTER DESCRIBING THE BOUNDARY OF THE UNITED STATES
FROM THE MOUTH OF THE ST. CROIX RIVER IN THE BAY OF FUNDY TO THE MOUTH
OF THE ST. MARY'S RIVER BETWEEN GEORGIA AND FLORIDA, THE PARTIES ADDED:
"COMPREHENDING ALL ISLANDS WITHIN TWENTY LEAGUES OF ANY PART OF THE
SHORES OF THE UNITED STATES  ...  ."  IN THE LIGHT OF JEFFERSON'S
OBSERVATION, ONLY 10 YEARS LATER, THAT NATIONAL CLAIMS TO CONTROL OF
THE SEA BEYOND APPROXIMATELY 20 MILES FROM THE COAST HAD NOT
THERETOFORE BEEN GENERALLY RECOGNIZED AMONG MARITIME POWERS; (FN110)
HIS ACCOMPANYING PROPOSAL THAT A THREE-MILE LIMIT SHOULD BE PLACED UPON
THE EXTENT OF TERRITORIAL WATERS; (FN111) AND SUBSEQUENT AMERICAN AND
BRITISH POLICY IN THIS REGARD, SEE NOTE 54, SUPRA, IT IS HARDLY
CONCEIVABLE THAT THIS PROVISION OF THE TREATY WAS INTENDED TO ESTABLISH
UNITED STATES TERRITORIAL JURISDICTION OVER ALL WATERS LYING WITHIN 20
LEAGUES (60 MILES) OF THE SHORE.  (FN112) NO REASON APPEARS FOR READING
THE LOUISIANA STATUTE DIFFERENTLY.  THE CONCLUSION THAT LANGUAGE
CLAIMING ALL ISLANDS WITHIN A CERTAIN DISTANCE OF THE COAST IS NOT
MEANT TO CLAIM ALL THE MARGINAL SEA TO THAT DISTANCE IS FURTHER
CONFIRMED BY THE ACT DEFINING THE BOUNDARIES OF GEORGIA, (FN113) WHICH
CLAIMS THREE MILES OF MARGINAL SEA BUT ALL ISLANDS WITHIN 20 LEAGUES OF
THE COAST.  THAT ACT PROVIDES: 

"ALONG THE MIDDLE OF THE ST. MARY'S RIVER TO THE ATLANTIC OCEAN, AND
EXTENDING THEREIN THREE ENGLISH MILES FROM LOW-WATER MARK; THENCE
RUNNING IN A NORTHEASTERLY DIRECTION AND FOLLOWING THE DIRECTION OF THE
ATLANTIC COAST TO A POINT OPPOSITE THE MOUTH, OR INLET, OF SAID
SAVANNAH RIVER; AND FROM THENCE TO THE MOUTH OR INLET OF SAID SAVANNAH
RIVER, TO THE PLACE OF BEGINNING; INCLUDING ALL THE LANDS, WATERS,
ISLANDS, AND JURISDICTIONAL RIGHTS WITHIN SAID LIMITS, AND ALSO ALL THE
ISLANDS WITHIN 20 MARINE LEAGUES OF THE SEACOAST." 

NOTHING IN THE CASE OF ALASKA PACIFIC FISHERIES V. UNITED STATES, 248
U.S. 78, TENDS TOWARD A CONTRARY CONSTRUCTION.  THE COURT THERE HELD
THAT AN ACT OF CONGRESS DESIGNATING AS AN INDIAN RESERVATION "THE BODY
OF LANDS KNOWN AS ANNETTE ISLANDS" INCLUDED THE INTERVENING AND
SURROUNDING WATERS AND SUBMERGED LANDS, WHICH WERE INLAND WATERS
ADMITTEDLY UNDER THE CONTROL OF THE UNITED STATES, WHETHER ACTUALLY
PART OF THE RESERVATION OR NOT.  THE COURT, CONSTRUING THE STATUTE IN
LIGHT OF THE INDIANS' HISTORIC USE OF THESE WATERS AS FISHING GROUNDS,
MERELY CONCLUDED THAT CONGRESS INTENDED TO INCLUDE IN THE AREA RESERVED
THE WATERS AND WATER BED, AS WELL AS THE ISLANDS, REFERRING TO BOTH "AS
A SINGLE BODY OF LANDS."  ID., 89.  THE CONSTRUCTION HERE CONTENDED FOR
BY LOUISIANA WOULD, IN CONTRAST, SWEEP WITHIN THE STATE'S JURISDICTION
WATERS AND SUBMERGED LANDS WHICH BEAR NO PROXIMATE RELATION TO ANY
ISLANDS, AND WHICH WOULD OTHERWISE BE PART OF THE HIGH SEAS. 

LOUISIANA ALSO CONTENDS, RELYING ON UNITED STATES V. TEXAS, 162 U.S.
1; LOUISIANA V. MISSISSIPPI, 202 U.S. 1, THAT THIS COURT HAS ALREADY
DETERMINED THAT ITS BOUNDARY INCLUDES THREE LEAGUES OF MARGINAL SEA. 
THE TEXAS CASE, HOWEVER, INVOLVED ONLY THE QUESTION WHETHER GREER
COUNTY, IN THE NORTHWEST PART OF THE STATE, WAS PROPERLY A PART OF
TEXAS.  AND EVEN IF THAT CASE HAD EFFECTIVELY ESTABLISHED A THREE
LEAGUE MARITIME BOUNDARY FOR TEXAS, WHICH QUITE EVIDENTLY IT DID NOT,
THAT WOULD NOT ESTABLISH A SIMILAR BOUNDARY FOR LOUISIANA. 

THE MISSISSIPPI CASE INVOLVED ONLY THE ISSUE OF THE BOUNDARY BETWEEN
LOUISIANA AND MISSISSIPPI.  LOUISIANA RELIES ON THE HOLDING OF THE
COURT THAT BECAUSE THE EASTERN BOUNDARY OF LOUISIANA WAS A WATER
BOUNDARY ALONG THE MIDDLE OF THE RIVER IBERVILLE, EXTENDING TO THE
GULF, IT WENT ON TO INCLUDE A DEEP-WATER SAILING CHANNEL IN THE GULF
ADJACENT TO MISSISSIPPI.  IT ALSO RELIES ON A ROUGH MAP INCLUDED IN THE
COURT'S OPINION SHOWING A LINE DRAWN ALL THE WAY AROUND THE STATE'S
COAST AT SOME DISTANCE IN THE GULF.  THERE IS, HOWEVER, NO INDICATION
WHATEVER THAT THE LINE SO INDICATED BORE ANY RELATION TO THE THREE
LEAGUE PROVISION IN THE LOUISIANA ACT OF ADMISSION.  FURTHERMORE, IF
THERE COULD BE ANY DOUBT THAT ONLY THE PORTION OF THE WATER BOUNDARY
ADJACENT TO MISSISSIPPI WAS CONSIDERED BY THE COURT, IT IS DISPELLED BY
THE COURT'S STATEMENT THAT: 

"QUESTIONS AS TO THE BREADTH OF THE MARITIME BELT OR THE EXTENT OF
THE SWAY OF THE RIPARIAN STATES REQUIRE NO SPECIAL CONSIDERATION HERE. 
THE FACTS RENDER SUCH DISCUSSION UNNECESSARY."  ID., 52. 

SEE ALSO UNITED STATES V. CALIFORNIA, SUPRA, AT 37. 

                               2.  PREADMISSION HISTORY. 

PRELIMINARILY, IT SHOULD BE OBSERVED THAT IN LIGHT OF WHAT HAS
ALREADY BEEN SAID, PP. 24-30, ANTE, LOUISIANA'S PREADMISSION HISTORY IS
RELEVANT IN THIS CASE ONLY TO THE EXTENT THAT IT AIDS IN CONSTRUING THE
LOUISIANA ACT OF ADMISSION.  THE THRUST OF THE STATE'S ARGUMENT ON THIS
SCORE IS THAT THE BOUNDARIES FIXED BY THE ACT OF ADMISSION COMPRISED
THE ENTIRE AREA ACQUIRED BY THE UNITED STATES FROM FRANCE THROUGH THE
LOUISIANA PURCHASE, EFFECTED BY THE TREATY OF PARIS IN 1803; THAT THE
EXTENT OF THIS AREA TRACES BACK, THROUGH CESSIONS BY FRANCE TO SPAIN IN
1762 AND SPAIN TO FRANCE IN 1800, TO WHAT WAS FIRST CLAIMED BY FRANCE
IN 1682; AND THAT SUCH AREA ORIGINALLY EXTENDED SOME 120 MILES INTO THE
GULF OF MEXICO, AND IN ANY CASE, BY VIRTUE OF OTHER EVENTS, AT LEAST
THREE LEAGUES INTO THE GULF. 

FOR REASONS NOW TO BE DISCUSSED WE THINK THAT THIS HISTORICAL THESIS
IS NOT BORNE OUT BY ANY OF THE DOCUMENTS OR EVENTS ON WHICH LOUISIANA
RELIES, BUT THAT TO THE CONTRARY WHAT HAS BEEN SHOWN US LEADS TO THE
CONCLUSION THAT LOUISIANA'S PREADMISSION TERRITORY, CONSISTENTLY WITH
THE ACT OF ADMISSION, STOPPED AT ITS COAST AND DID NOT EMBRACE ANY
MARGINAL SEA. 

1.  THE AREA WHICH INCLUDES THE PRESENT STATE OF LOUISIANA WAS FIRST
CLAIMED FOR FRANCE BY LA SALLE IN 1682, EXTENDING SOUTHWARD: 

"AS FAR AS (THE MISSISSIPPI'S)  ...  MOUTH IN THE SEA, OR GULF OF
MEXICO, ABOUT THE TWENTY-SEVENTH DEGREE OF THE ELEVATION OF THE NORTH
POLE  ... ."  (FN114) 

IT IS APPARENT FROM THE FACE OF LA SALLE'S PROCLAMATION THAT IT WAS
THE MOUTH OF THE MISSISSIPPI WHICH DEFINED THE SOUTHERLY LIMIT OF HIS
CLAIM.  HIS EXPRESSION OF BELIEF THAT THE RIVER MOUTH WAS AT "ABOUT"
THE 27TH PARALLEL DOES NOT INDICATE AN INTENT TO CLAIM TO THAT
PARALLEL, WHICH IS IN FACT SOME 120 MILES SOUTH OF THE MISSISSIPPI'S
MOUTH.  IN ANY EVENT, THE PROCES-VERBAL OF JACQUES DE LA METAIRIE,
NOTARY OF THE LA SALLE EXPEDITION, (FN115) SHOWS THAT THE PROCLAMATION
WAS ISSUED AFTER THE MOUTH OF THE MISSISSIPPI HAD BEEN REACHED AND THE
PARTY HAD RETURNED UPSTREAM ONLY FAR ENOUGH TO FIND SOLID GROUND FOR
THE ERECTION OF A MONUMENT, AND THAT LA SALLE THEN THOUGHT, MISTAKENLY
IN FACT, THAT THEY WERE AT ABOUT THE 27TH PARALLEL.  OTHER DOCUMENTS
ALSO INDICATE THAT THE RIVER MOUTH DEFINED THE EXTENT OF THE CLAIM AND
THAT THE TERRITORY INCLUDED NO MARGINAL SEA WHATEVER.  (FN116) 

2.  BY A SECRET TREATY EXECUTED AT FONTAINEBLEAU ON NOVEMBER 3, 1762,
FRANCE CEDED TO SPAIN "ALL THE COUNTRY KNOWN UNDER THE NAME OF
LOUISIANA, AS WELL AS NEW ORLEANS AND THE ISLAND IN WHICH THE PLACE
STANDS."  (FN117)  BY THE SECRET TREATY OF SAN ILDEFONSO, SIGNED
OCTOBER 1, 1800, SPAIN RETROCEDED THE "COLONY AND PROVINCE OF
LOUISIANA" TO FRANCE.  (FN118)  CERTAINLY THERE IS NOTHING ON THE FACE
OF EITHER OF THESE TREATIES TO INDICATE THAT FRANCE OR SPAIN CLAIMED
ANY TERRITORIAL SEA. 

3.  LOUISIANA ARGUES, HOWEVER, THAT CERTAIN TREATIES BETWEEN FRANCE,
SPAIN, AND OTHER NATIONS EVIDENCE SUCH AN INTENT.  FOUR OF THESE
TREATIES CONCERN THE RIGHT OF THE FRENCH TO FISH WITHIN CERTAIN
DISTANCES OF THE COASTS OF THE BRITISH POSSESSIONS IN NORTH AMERICA,
VARYING FROM THREE TO 30 LEAGUES.  THE RELEVANT PORTIONS DO NOT RELATE
TO FRENCH OR SPANISH TERRITORY AT ALL.  (FN119)  IN ANOTHER, GREAT
BRITAIN UNDERTOOK NOT TO PERMIT ITS SUBJECTS TO NAVIGATE OR FISH WITHIN
10 LEAGUES OF COASTS OCCUPIED BY SPAIN "IN THE PACIFIC OCEAN, OR IN THE
SOUTH SEAS," SO AS TO PREVENT ILLICIT TRADE WITH SPANISH SETTLEMENTS. 
(FN120)  THE TREATY DOES NOT RELATE TO THE AREA IN QUESTION, AND, FAR
FROM BEING AN ASSERTION OF A TERRITORIAL CLAIM BY SPAIN, IMPOSED AN
OBLIGATION OF A LIMITED NATURE ON GREAT BRITAIN ALONE.  THE SAME
REASONING APPLIES TO ANOTHER OF THESE TREATIES, THE TREATY BETWEEN
SPAIN AND TRIPOLI, SIGNED SEPTEMBER 10, 1794, PROHIBITING THE CAPTURE
OF ANY VESSEL WITHIN 10 LEAGUES FROM COASTS OF THE DOMINIONS OF SPAIN. 
(FN121)  RELIANCE IS ALSO PLACED ON AN ORDINANCE PROMULGATED BY PHILIP
II OF SPAIN IN OCTOBER 1565, ASSERTING RIGHTS WITHIN THE VISUAL HORIZON
OF THE COASTS OF SPAIN AND ITS POSSESSIONS.  (FN122)  IT MAY BE
QUESTIONED WHETHER THIS ORDINANCE EVEN CONSTITUTED AN ASSERTION OF
TERRITORIAL JURISDICTION AS IT IS KNOWN TODAY, ESPECIALLY IN VIEW OF
THE FACT THAT THE CONCEPT OF THE TERRITORIAL SEA DID NOT ARISE IN
INTERNATIONAL LAW UNTIL AFTER THIS COUNTRY ACHIEVED ITS INDEPENDENCE. 
SEE UNITED STATES V. CALIFORNIA, SUPRA, 32-33.  EVEN IF IT DID, THE
ORDINANCE CAN HARDLY BE TAKEN AS APPLYING TO A TERRITORY NOT ACQUIRED
BY SPAIN UNTIL 200 YEARS LATER OR AS AFFECTING THE CONSTRUCTION OF THE
ACT ADMITTING LOUISIANA TO THE UNION 250 YEARS LATER.  (FN123)    4.
BY THE TREATY OF PARIS, SIGNED APRIL 30, 1803, FRANCE CEDED TO THE
UNITED STATES THE LOUISIANA TERRITORY WITH ALL ITS RIGHTS AND
APPURTENANCES "AS FULLY AND IN THE SAME MANNER AS THEY HAVE BEEN
ACQUIRED BY THE FRENCH REPUBLIC, IN VIRTUE OF THE ABOVE-MENTIONED
TREATY (TREATY OF SAN ILDEFONSO, OCT. 1, 1800), CONCLUDED WITH HIS
CATHOLIC MAJESTY," INCLUDING "THE ADJACENT ISLANDS BELONGING TO
LOUISIANA."  (FN124)  TO SHOW THAT THE ACT ADMITTING LOUISIANA TO THE
UNION MUST BE CONSTRUED AS REFERRING DIRECTLY TO THIS TREATY, LOUISIANA
RELIES ON ARTICLE III OF THE TREATY, WHICH REQUIRED THE UNITED STATES
TO ADMIT "THE CEDED TERRITORY" TO STATEHOOD AS SOON AS POSSIBLE.  BUT
SINCE THE HISTORIC DOCUMENTS TO WHICH OUR ATTENTION HAS BEEN CALLED
FAIL TO SHOW THAT THE CEDED TERRITORY INCLUDED ANY TERRITORIAL SEA,
TAKING THE TREATY AS DEFINING THE SCOPE OF THE ACT OF ADMISSION ONLY
CONFIRMS THE VIEW THAT LOUISIANA'S MARITIME BOUNDARY WAS FIXED AT, AND
NOT SOMEWHERE IN, THE GULF OF MEXICO. 

5.  LOUISIANA ALSO ASSERTS THAT ABOUT THE TIME OF ITS ADMISSION, THE
UNITED STATES WAS CLAIMING THREE LEAGUES OF TERRITORIAL WATERS IN THE
GULF, AND THAT THE ACT OF ADMISSION WAS FRAMED WITH REFERENCE TO THAT
CLAIM.  HOWEVER, FROM THE GREAT VARIETY OF DOCUMENTATION PRESENTED BY
THE PARTIES, THE MOST THAT COULD POSSIBLY BE SAID IS THAT THE UNITED
STATES, CONTRARY TO THE GOVERNMENT'S CONTENTION, HAD NOT UNEQUIVOCALLY
ASSERTED THE APPLICABILITY OF THE THREE-MILE LIMIT IN THE GULF OF
MEXICO.  ASSUMING, AS THE DEFENDANTS HAVE HERE ARGUED, THAT IT WOULD
HAVE BEEN REASONABLE UNDER INTERNATIONAL LAW FOR THE UNITED STATES TO
CLAIM THREE LEAGUES OF TERRITORIAL WATERS IN THE GULF HAD IT SO CHOSEN,
WE NEVERTHELESS CANNOT CONCLUDE THAT CONGRESS MEANT TO DEFINE
LOUISIANA'S BOUNDARIES BY REFERENCE TO A RULE WHICH WAS THE SUBJECT OF
SO MUCH DIFFERENCE AMONG NATIONS AND WHICH HAD NEVER BEEN ADOPTED BY
THIS COUNTRY.  THE TERMS OF THE ACT OF ADMISSION SEEM TO POINT SO
STRONGLY TO THE CONTRARY THAT IT WOULD REQUIRE MUCH MORE CONVINCING
EVIDENCE THAN THIS TO PERSUADE US THAT THE CONSTRUCTION ADVANCED BY
LOUISIANA IS CORRECT.  FURTHERMORE, IT IS SIGNIFICANT THAT ONLY A FEW
YEARS LATER, CONGRESS ADMITTED MISSISSIPPI AND ALABAMA TO THE UNION,
DESCRIBING THEIR BOUNDARIES AS INCLUDING ALL ISLANDS WITHIN SIX LEAGUES
OF THE SHORE.  SEE PP. 81, 82, POST.  IF THE THREE-LEAGUE PROVISION IN
LOUISIANA'S ACT OF ADMISSION WAS INTENDED TO REFLECT A POLICY OF
CLAIMING THREE LEAGUES OF TERRITORIAL WATERS, IT IS DIFFICULT TO
UNDERSTAND WHY CONGRESS, SO SHORTLY THEREAFTER, SHOULD HAVE
INCORPORATED A SIX-LEAGUE LIMIT IN AN OTHERWISE IDENTICAL PROVISION. 

                          3.  POSTADMISSION EVENTS. 

TO THE EXTENT THAT LOUISIANA'S RELIANCE ON POSTADMISSION EVENTS IS
FOR THE PURPOSE OF SHOWING THAT THE UNITED STATES ESTABLISHED A THREE
LEAGUE "NATIONAL BOUNDARY" IN THE GULF, THEY CANNOT HELP HER CASE, FOR
REASONS PREVIOUSLY DISCUSSED.  ANTE, PP. 30-36.  WE NEED NOT DECIDE
WHETHER THE UNITED STATES EVER CLAIMED THREE LEAGUES OF TERRITORIAL
WATERS ALONG THE ENTIRE GULF COAST, WHICH COULD IN A SENSE BE SAID TO
CONSTITUTE A NATIONAL BOUNDARY, OR WHETHER, IF IT DID, LOUISIANA WOULD
HAVE BEEN ENTITLED TO EXTEND ITS OWN BOUNDARY TO THAT DISTANCE.  UNDER
THE SUBMERGED LANDS ACT, LOUISIANA'S BOUNDARY MUST BE MEASURED AT THE
TIME OF HER ADMISSION, UNLESS A SUBSEQUENT CHANGE WAS APPROVED BY
CONGRESS.  IF THE ACT OF ADMISSION FIXED THE BOUNDARY AT THE SHORE,
NEITHER ACTION BY CONGRESS FIXING GREATER BOUNDARIES FOR OTHER STATES
NOR EXECUTIVE POLICY ON THE EXTENT OF TERRITORIAL WATERS COULD
CONSTITUTE CONGRESSIONAL APPROVAL OF A MARITIME BOUNDARY FOR
LOUISIANA.  LOUISIANA, HOWEVER, INSISTS THAT CERTAIN OF THESE EVENTS
SUBSEQUENT TO ADMISSION MUST BE CONSIDERED IN CONSTRUING THE ACT OF
ADMISSION. 

1.  WE ARE URGED TO INFER THAT SINCE, AS THE COURT TODAY HOLDS, THREE
LEAGUE BOUNDARIES WERE FIXED FOR TEXAS (ANTE, P. 64) AND FLORIDA (POST,
P. 121), AND SINCE, AFTER TEXAS' ADMISSION, THE TREATY OF GUADALUPE
HIDALGO FIXED THE STARTING POINT OF THE BOUNDARY BETWEEN THE UNITED
STATES AND MEXICO AT THREE LEAGUES IN THE GULF, CONGRESS MUST HAVE
MEANT TO TREAT LOUISIANA EQUALLY.  THE INFERENCE MUST BE BASED
PRIMARILY ON THE EXISTENCE OF THE TEXAS AND FLORIDA BOUNDARIES, FOR THE
TREATY OF GUADALUPE HIDALGO RELATES ONLY TO THE BOUNDARY BETWEEN TEXAS
AND MEXICO, AND TENDS TO PROVE NOTHING MORE THAN THE EXISTENCE OF A
THREE-LEAGUE BOUNDARY FOR TEXAS.  IN VIEW OF THE FACT THAT SHORTLY
AFTER LOUISIANA'S ADMISSION, CONGRESS FIXED MARITIME BOUNDARIES FOR
MISSISSIPPI AND ALABAMA WHICH, EVEN ON LOUISIANA'S CONSTRUCTION, WOULD
BE DIFFERENT THAN THREE LEAGUES, WE CAN DISCERN NO CONSISTENT
CONGRESSIONAL POLICY TOWARD THE MARITIME BOUNDARIES OF THE GULF STATES
AT THE TIME OF LOUISIANA'S ADMISSION, EVEN IF THE MUCH LATER ACTIONS
WITH RESPECT TO TEXAS AND FLORIDA COULD BE THOUGHT TO HAVE ESTABLISHED
SUCH A POLICY.  CF. LOUISIANA V. MISSISSIPPI, SUPRA, AT 41.  IT WOULD
REQUIRE CLEAR EVIDENCE THAT SUCH A POLICY WAS OPERATIVE AT THE TIME
CONGRESS PASSED THE ACT ADMITTING LOUISIANA TO OVERCOME LANGUAGE IN
THAT ACT WHICH POINTS SO STRONGLY AGAINST THE CONSTRUCTION URGED BY
LOUISIANA.  NOR DOES THE CONCEPT OF EQUAL FOOTING REQUIRE SUCH A
CONSTRUCTION.  WHILE THE OWNERSHIP OF CERTAIN LANDS WITHIN STATE
BOUNDARIES HAS BEEN HELD TO BE AN INSEPARABLE ATTRIBUTE OF THE
POLITICAL SOVEREIGNTY GUARANTEED EQUALLY TO ALL STATES, SEE UNITED
STATES V. TEXAS, 339 U.S., AT 716, THE GEOGRAPHIC EXTENT OF THOSE
BOUNDARIES, AND THUS OF THE LANDS OWNED, CLEARLY HAS NOTHING TO DO WITH
POLITICAL EQUALITY.  A FORTIORI THIS IS TRUE IN THE CASE OF MARITIME
BOUNDARIES BEYOND LOW-WATER MARK, SINCE, EXCEPT AS GRANTED BY CONGRESS,
THE STATES DO NOT OWN THE LANDS BENEATH THE MARGINAL SEAS.  SEE UNITED
STATES V. CALIFORNIA, SUPRA; ALABAMA V. TEXAS, SUPRA. 

2.  CERTAIN TREATIES SUCCESSIVELY ENTERED INTO FROM 1819 TO 1838 BY
THE UNITED STATES WITH SPAIN, MEXICO, AND THE REPUBLIC OF TEXAS
ESTABLISHING THE BOUNDARY BETWEEN TEXAS AND THE UNITED STATES ARE
RELIED ON AS INDICATING THAT THE STATE AND FEDERAL GOVERNMENTS THOUGHT
THAT CONGRESS HAD FIXED A THREE-LEAGUE MARITIME BOUNDARY FOR
LOUISIANA.  (FN125)  LOUISIANA CONTENDS THAT THE TREATIES FIXED THE
BEGINNING OF THE INTERNATIONAL BOUNDARY AT A POINT THREE LEAGUES FROM
LAND, AND THAT THEREFORE THE SOUTHWESTERN CORNER OF LOUISIANA AS WELL
AS THE SOUTHEASTERN CORNER OF TEXAS MUST HAVE BEEN REGARDED AS
EXTENDING SEAWARD TO THAT DISTANCE.  WHETHER OR NOT SUCH REASONING IS
VALID, THE LANGUAGE OF THE TREATIES REFUTES THE PREMISE THAT THE
INTERNATIONAL BOUNDARY BEGAN THREE LEAGUES FROM LAND.  BOTH THE 1819
AND THE 1828 TREATIES RECITED THAT "THE BOUNDARY LINE BETWEEN THE TWO
COUNTRIES, WEST OF THE MISSISSIPPI, SHALL BEGIN ON THE GULPH OF MEXICO,
AT THE MOUTH OF THE RIVER SABINE, IN THE SEA  ...  ."  THE TREATY OF
1838 REFERRED TO THE TREATY OF 1828, AND PROVIDED FOR A SURVEY OF "THAT
PORTION OF THE SAID BOUNDARY WHICH EXTENDS FROM THE MOUTH OF THE
SABINE, WHERE THAT RIVER ENTERS THE GULPH OF MEXICO, TO THE RED
RIVER."  (FN126) 

3.  IN ITS ANSWER TO THE ORIGINAL COMPLAINT, LOUISIANA ALLEGED
CERTAIN ACTS OF SOVEREIGNTY OVER THE MARGINAL SEA AND SEABED AND THE
ACQUIESCENCE OF THE FEDERAL GOVERNMENT THEREIN.  (FN127) ALTHOUGH IT
HAS NOW ABANDONED ITS EARLIER CONTENTION THAT THESE ACTS ESTABLISH ITS
TITLE BY PRESCRIPTION AND ESTOPPEL APART FROM THE SUBMERGED LANDS ACT,
IT NOW URGES THAT THEY INDICATE A SUBSEQUENT PRACTICAL CONSTRUCTION OF
LOUISIANA'S ACT OF ADMISSION.  TAKING THESE FACTS AS PROVED, THEY DO
NOT HAVE THE EFFECT URGED BY LOUISIANA.  THEY INDICATE ONLY THAT UNTIL
THE 1930'S, THE FEDERAL GOVERNMENT MAY HAVE BELIEVED THAT LANDS BENEATH
THE MARGINAL SEA BELONGED TO THE STATES.  THERE IS NO ALLEGATION THAT
THE GEOGRAPHICAL EXTENT OF LOUISIANA'S ASSERTIONS, ASSUMING THAT SUCH
ASSERTIONS WERE MADE BEYOND THREE MILES, WAS DRAWN IN QUESTION, OR THAT
THE QUESTION OF LOUISIANA'S BOUNDARY WAS CONSIDERED.  SOME OF THE ACTS
ALLEGED CONSTITUTED POLICE POWER MEASURES WHICH A STATE CAN ENFORCE
AGAINST ITS CITIZENS BEYOND ITS BOUNDARIES.  SKIRIOTES V. FLORIDA, 313
U.S. 69.  AS TO ACTS TOUCHING THE DEVELOPMENT OF THE SUBMERGED LANDS
THEMSELVES, THE UNITED STATES WOULD HAVE HAD NO REASON TO OBJECT TO
ACTIVITY BEYOND LOUISIANA'S BOUNDARY, SINCE NOT UNTIL 1945 DID THE
FEDERAL GOVERNMENT ASSERT ANY RIGHTS IN THE CONTINENTAL SHELF FOR
ITSELF.  IF ANY OF THE OTHER ACTS ALLEGED CONFLICTED WITH THIS NATION'S
POLICY TOWARD TERRITORIAL WATERS, OBJECTION WOULD HAVE LAIN REGARDLESS
OF THE LOCATION OF THE STATE'S BOUNDARY, AND LACK OF OBJECTION IS
THEREFORE, FOR THE PURPOSES OF THIS CASE, INCONCLUSIVE. 

4.  FINALLY, LOUISIANA RELIES ON A 1954 STATUTE OF ITS OWN
ESTABLISHING THE STATE'S BOUNDARY AT THREE LEAGUES SEAWARD OF THE LINE
BETWEEN INLAND AND OPEN WATERS.  ACT 33 OF 1954, LA.  REV. STAT. 49:1. 
IT IS SAID THAT IN SO LEGISLATING LOUISIANA FOLLOWED THE COASTLINE AS
DEFINED IN REGULATIONS PROMULGATED BY THE COMMANDANT OF THE COAST
GUARD, PURSUANT TO THE FEDERAL ACT OF FEBRUARY 19, 1895, 28 STAT. 672,
33 U.S.C. SEC. 151, AND THAT BECAUSE OF THIS, AND ALSO ON
CONSIDERATIONS OF CONVENIENCE AND CERTAINTY, THIS STATE ENACTMENT
SHOULD BE ACCEPTED AS ESTABLISHING LOUISIANA'S COAST.  WE THINK THE
CONSIDERATION OF THIS CONTENTION SHOULD BE POSTPONED TO A LATER STAGE
OF THIS CASE.  WE DECIDE NOW ONLY THAT LOUISIANA IS ENTITLED TO
SUBMERGED-LAND RIGHTS TO A DISTANCE NO GREATER THAN THREE GEOGRAPHICAL
MILES FROM ITS COASTLINES, WHEREVER THOSE LINES MAY ULTIMATELY BE SHOWN
TO BE.

                                IV.

      THE PARTICULAR CLAIMS OF MISSISSIPPI. 

MISSISSIPPI'S CLAIM TO A THREE-LEAGUE SEAWARD BOUNDARY MUST FAIL
LARGELY FOR THE SAME REASONS THAT HAVE LED US TO REJECT THE SIMILAR
CLAIM OF LOUISIANA. 

THE TERRITORY WHICH NOW COMPRISES THE PART OF MISSISSIPPI LYING SOUTH
OF THE 31ST PARALLEL WAS ORIGINALLY CEDED BY FRANCE TO GREAT BRITAIN BY
THE TREATY OF PARIS OF FEBRUARY 10, 1763.  (FN128) GREAT BRITAIN
DESIGNATED THIS TERRITORY PART OF WEST FLORIDA, AND BY PROCLAMATION OF
OCTOBER 7, 1763, KING GEORGE III DESCRIBED WEST FLORIDA AS: 

"BOUNDED TO THE SOUTHWARD BY THE GULF OF MEXICO, INCLUDING ALL
ISLANDS WITHIN SIX LEAGUES OF THE COAST, FROM THE RIVER APALACHICOLA TO
LAKE PONTCHARTRAIN  ...  ."  (FN129) 

ON SEPTEMBER 3, 1783, GREAT BRITAIN AND SPAIN SIGNED A TREATY BY
WHICH GREAT BRITAIN CEDED THIS AREA TO SPAIN AS PART OF A CESSION
EMBRACING ALL OF WESTERN AND EASTERN FLORIDA.  (FN130) 

BY THE TREATY OF SAN ILDEFONSO, SIGNED OCTOBER 1, 1800, SPAIN CEDED
TO FRANCE "THE COLONY AND PROVINCE OF LOUISIANA."  SEE P. 72, ANTE.  IN
THE TREATY OF PARIS OF APRIL 30, 1803, FRANCE CEDED LOUISIANA TO THE
UNITED STATES TO THE SAME EXTENT AS FRANCE HAD ACQUIRED IT BY VIRTUE OF
THE TREATY OF SAN ILDEFONSO.  SEE P. 74, ANTE.  A DISPUTE AROSE BETWEEN
THE UNITED STATES AND SPAIN AS TO WHETHER, BY THE TREATY OF SAN
ILDEFONSO, SPAIN HAD CONVEYED TO FRANCE ANY LAND EAST OF THE
MISSISSIPPI RIVER (INCLUDING ANY PART OF WEST FLORIDA), AND THEREFORE
WHETHER FRANCE COULD HAVE SUBSEQUENTLY PASSED THAT TERRITORY TO THE
UNITED STATES IN THE TREATY OF PARIS.  ON OCTOBER 27, 1810, PRESIDENT
MADISON CLAIMED THE RIGHT TO POSSESSION OF THE AREA, (FN131) AND ON MAY
14, 1812, CONGRESS MADE IT PART OF THE MISSISSIPPI TERRITORY.  (FN132)
ON MARCH 1, 1817, CONGRESS AUTHORIZED THE CREATION OF THE STATE OF
MISSISSIPPI, SPECIFICALLY SETTING OUT ITS BOUNDARIES, IN PART AS
FOLLOWS: 

"THENCE DUE SOUTH TO THE GULF OF MEXICO, THENCE WESTWARDLY, INCLUDING
ALL THE ISLANDS WITHIN SIX LEAGUES OF THE SHORE, TO THE MOST EASTERN
JUNCTION OF PEARL RIVER WITH LAKE BORGNE  ...  ."  (FN133)

THE MISSISSIPPI CONSTITUTION, APPROVED BY THE ACT ADMITTING THE STATE
TO THE UNION ON DECEMBER 10, 1817, (FN134) CONTAINED AN IDENTICAL
PROVISION.  FINALLY, BY THE TREATY OF FEBRUARY 22, 1819, SPAIN
PURPORTED TO CEDE EAST AND WEST FLORIDA TO THE UNITED STATES.  8 STAT.
254.  IT WAS DETERMINED, HOWEVER, IN FOSTER V. NEILSON, 2 PET. 253,
THAT THE PORTION OF THE STATE OF MISSISSIPPI SOUTH OF THE 31ST PARALLEL
PASSED TO THE UNITED STATES AS PART OF THE LOUISIANA PURCHASE UNDER THE
TREATY OF PARIS IN 1803, AND NOT AS PART OF WEST FLORIDA UNDER THE
SPANISH TREATY OF 1819. 

WE HAVE ALREADY HELD WITH RESPECT TO LOUISIANA'S CLAIM TO A THREE
LEAGUE MARITIME BOUNDARY THAT AN ACT OF ADMISSION WHICH REFERS TO ALL
ISLANDS WITHIN A CERTAIN DISTANCE OF THE SHORE DOES NOT APPEAR ON ITS
FACE TO MEAN TO ESTABLISH A BOUNDARY LINE THAT DISTANCE FROM THE SHORE,
INCLUDING ALL WATERS AND SUBMERGED LANDS AS WELL AS ALL ISLANDS.  THERE
IS NOTHING IN MISSISSIPPI'S HISTORY, JUST AS THERE IS NOTHING IN
LOUISIANA'S, TO CAUSE US TO DEPART FROM THAT CONCLUSION IN THIS
INSTANCE.  INDEED, MISSISSIPPI RELIES ALMOST ENTIRELY ON THE FACT THAT
THE VERY LANGUAGE WHICH DEFEATS ITS CONTENTION WAS REPEATEDLY USED, IN
THE 1763 PROCLAMATION BY KING GEORGE III, IN THE CONGRESSIONAL ENABLING
ACT, AND IN THE STATE CONSTITUTION, AND WAS IMPLICITLY INCORPORATED IN
MESNE CONVEYANCES. 

MISSISSIPPI ALSO URGES THAT THE DRAFTSMEN OF THE PROVISION MUST HAVE
INTENDED TO INCLUDE ALL WATERS AND SUBMERGED LANDS WITHIN SIX LEAGUES
FROM SHORE BECAUSE THE WATERS ARE VERY SHALLOW AND THE ISLANDS ARE
CONSTANTLY SHIFTING.  THIS ARGUMENT, HOWEVER, APPEARS ONLY TO
STRENGTHEN THE CONCLUSION THAT IT WAS ISLANDS UPON WHICH THE PROVISION
FOCUSED, AND NOT WATERS WHERE THERE WERE NO ISLANDS.    WE MUST HOLD
THAT MISSISSIPPI IS NOT ENTITLED TO RIGHTS IN SUBMERGED LANDS LYING
BEYOND THREE GEOGRAPHICAL MILES FROM ITS COAST.  (FN135)

V.

                              THE PARTICULAR CLAIMS OF ALABAMA. 

THE PREADMISSION HISTORY OF ALABAMA IS ESSENTIALLY THE SAME AS THAT
OF MISSISSIPPI, THE PORTION OF THE STATE LYING SOUTH OF THE 31ST
PARALLEL HAVING PASSED BY THE SAME MESNE CONVEYANCES FROM FRANCE TO THE
UNITED STATES.  THAT PORTION WAS INCORPORATED INTO THE MISSISSIPPI
TERRITORY BY THE ACT OF MAY 14, 1812, (FN136) AND BECAME A PART OF THE
STATE OF ALABAMA FORMED OUT OF THAT TERRITORY.  ITS ACT OF ADMISSION
(FN137) INCORPORATED THE ENABLING ACT, WHICH DESCRIBED ITS BOUNDARY IN
PART AS FOLLOWS: 

"THENCE, DUE SOUTH, TO THE GULF OF MEXICO; THENCE, EASTWARDLY,
INCLUDING ALL ISLANDS WITHIN SIX LEAGUES OF THE SHORE, TO THE PERDIDO
RIVER  ...  ."  (FN138) 

THE SAME REASONS APPLICABLE TO THE CLAIMS OF LOUISIANA AND
MISSISSIPPI COMPEL US TO HOLD THAT ALABAMA IS NOT ENTITLED TO RIGHTS IN
SUBMERGED LANDS LYING BEYOND THREE GEOGRAPHICAL MILES FROM ITS COAST. 
(FN139)

                                             VI.

                                        CONCLUSIONS. 

ON THE BASIS OF WHAT HAS BEEN SAID IN THIS OPINION, WE REACH THE
FOLLOWING CONCLUSIONS: 

1.  AS TO THE STATES OF LOUISIANA, MISSISSIPPI, AND ALABAMA, A DECREE
WILL BE ENTERED (1) DECLARING THAT THE UNITED STATES IS ENTITLED, AS
AGAINST THESE STATES, TO ALL THE LANDS, MINERALS, AND OTHER NATURAL
RESOURCES UNDERLYING THE GULF OF MEXICO MORE THAN THREE GEOGRAPHICAL
MILES FROM THE COAST OF EACH SUCH STATE, THAT IS, FROM THE LINE OF
ORDINARY LOW-WATER MARK AND OUTER LIMIT OF INLAND WATERS, AND EXTENDING
SEAWARD TO THE EDGE OF THE CONTINENTAL SHELF; (2) DECLARING THAT NONE
OF THESE STATES IS ENTITLED TO ANY INTEREST IN SUCH LANDS, MINERALS,
AND RESOURCES; (3) ENJOINING THESE STATES FROM INTERFERING WITH THE
RIGHTS OF THE UNITED STATES THEREIN; (4) DIRECTING EACH SUCH STATE
APPROPRIATELY TO ACCOUNT TO THE UNITED STATES FOR ALL SUMS OF MONEY
DERIVED THEREFROM SUBSEQUENT TO JUNE 5, 1950; (FN140) AND (5)
DISMISSING THE CROSS BILL OF THE STATE OF ALABAMA.  (FN141) 

2.  AS TO THE STATE OF TEXAS, A DECREE WILL BE ENTERED (1) DECLARING
THAT THE STATE IS ENTITLED, AS AGAINST THE UNITED STATES, TO THE LANDS,
MINERALS, AND OTHER NATURAL RESOURCES UNDERLYING THE GULF OF MEXICO TO
A DISTANCE OF THREE LEAGUES FROM TEXAS' COAST, THAT IS, FROM THE LINE
OF ORDINARY LOW-WATER MARK AND OUTER LIMIT IN INLAND WATERS; (2)
DECLARING THAT THE UNITED STATES IS ENTITLED, AS AGAINST TEXAS, TO NO
INTEREST THEREIN; (3) DECLARING THAT THE UNITED STATES IS ENTITLED, AS
AGAINST TEXAS, TO ALL SUCH LANDS, MINERALS, AND RESOURCES LYING BEYOND
THAT AREA, AND EXTENDING TO THE EDGE OF THE CONTINENTAL SHELF; (4)
ENJOINING THE STATE FROM INTERFERING WITH THE RIGHTS OF THE UNITED
STATES THEREIN; AND (5) DIRECTING TEXAS APPROPRIATELY TO ACCOUNT TO THE
UNITED STATES FOR ALL SUMS OF MONEY DERIVED SINCE JUNE 5, 1950, FROM
THE AREA TO WHICH THE UNITED STATES IS DECLARED TO BE ENTITLED. 

3.  JURISDICTION OVER THIS CASE WILL BE RETAINED FOR SUCH FURTHER
PROCEEDINGS AS MAY BE NECESSARY TO EFFECTUATE THE RIGHTS ADJUDICATED
HEREIN. 

4.  THE MOTIONS OF LOUISIANA AND MISSISSIPPI TO TAKE DEPOSITIONS AND
PRESENT EVIDENCE ARE DENIED, WITHOUT PREJUDICE TO THEIR RENEWAL IN SUCH
FURTHER PROCEEDINGS AS MAY BE HAD IN CONNECTION WITH MATTERS LEFT OPEN
BY THIS OPINION.  (FN142)  IN SO DECIDING WE HAVE NOT BEEN UNMINDFUL OF
THIS COURT'S LIBERALITY IN ORIGINAL CASES OF "ALLOWING FULL
DEVELOPMENTS OF THE FACTS."  SEE UNITED STATES V. TEXAS, 339 U.S. 707,
715.  WE THINK, HOWEVER, THAT THE CONCLUSIONS TO BE DRAWN FROM THE
HISTORICAL DOCUMENTS RELIED ON BY LOUISIANA, MISSISSIPPI, AND ALABAMA
ARE SO CLEAR AS TO LEAVE NO ISSUE PRESENTLY INVOLVED OPEN TO DISPUTE,
AND THAT WE WOULD NOT BE JUSTIFIED IN POSTPONING THE GRANTING OF THE
RELIEF TO WHICH WE FIND THE UNITED STATES ENTITLED AS AGAINST THESE
THREE STATES.  (FN143)  BY THE SAME TOKEN WE SEE NO NEED TO POSTPONE
THE ADJUDICATION OF THE ISSUES NOW PRESENTED AS BETWEEN THE UNITED
STATES AND TEXAS, AND WE DO NOT UNDERSTAND THE GOVERNMENT INDEED TO
CONTEND OTHERWISE. 

THE PARTIES MAY SUBMIT AN APPROPRIATE FORM OF DECREE GIVING EFFECT TO
THE CONCLUSIONS REACHED IN THIS OPINION.  IT IS SO ORDERED. 

FN1  THE SUIT WAS ORIGINALLY INSTITUTED AGAINST LOUISIANA ALONE. 
PURSUANT TO THE ORDER OF THIS COURT THE SUIT WAS THEREAFTER BROADENED
TO INCLUDE THE OTHER DEFENDANT STATES.  354 U.S. 515. 

FN2  SEE NOTE 140, INFRA. 

FN3  IN 1945 THE UNITED STATES HAD PROCLAIMED, AS AGAINST OTHER
NATIONS, ITS JURISDICTION AND CONTROL OVER SUCH SUBMERGED LANDS TO THE
EDGE OF THE CONTINENTAL SHELF.  PRESIDENTIAL PROCLAMATION NO. 2667,
SEPT. 28, 1945, 10 FED. REG. 12303, 59 STAT. 884.  THE ACCOMPANYING
EXECUTIVE ORDER PROVIDED THAT "NEITHER THIS ORDER NOR THE AFORESAID
PROCLAMATION SHALL BE DEEMED TO AFFECT THE DETERMINATION BY LEGISLATION
OR JUDICIAL DECREE OF ANY ISSUES BETWEEN THE UNITED STATES AND THE
SEVERAL STATES, RELATING TO THE OWNERSHIP OR CONTROL OF THE SUBSOIL AND
SEA BED OF THE CONTINENTAL SHELF WITHIN OR OUTSIDE OF THE THREE-MILE
LIMIT."  EXEC. ORDER NO. 9633, 10 FED. REG.  12305. 

THE "CONTINENTAL SHELF," IN THE GEOLOGICAL SENSE, IS THE GENTLY
SLOPING PLAIN WHICH UNDERLIES THE SEAS ADJACENT TO MOST LAND MASSES,
EXTENDING SEAWARD FROM SHORE TO THE POINT AT WHICH THERE IS A MARKED
INCREASE IN THE GRADIENT OF THE DECLINE AND WHERE THE CONTINENTAL SLOPE
LEADING TO THE TRUE OCEAN BOTTOM BEGINS.  IN THE GULF OF MEXICO, THE
EDGE OF THE CONTINENTAL SHELF, AS SO DEFINED, LIES AS MUCH AS 200 MILES
FROM SHORE IN SOME PLACES.  CHRISTOPHER, THE OUTER CONTINENTAL SHELF
LANDS ACT:  KEY TO A NEW FRONTIER, 6 STAN.  L. REV. 23, 24; H.R. REP.
NO. 215, 83D CONG., 1ST SESS. 6. 

FN4  1937-1938, 75TH CONGRESS: 

S. 2164, S.J. RES. 208.  BOTH WOULD HAVE CONFIRMED THE RIGHTS IN THE
FEDERAL GOVERNMENT.  S.J. RES. 208 WAS PASSED BY THE SENATE BUT NOT BY
THE HOUSE. 

1939, 76TH CONGRESS, 1ST SESSION: 

H.J. RES. 176, H.J. RES. 181, S.J. RES. 24, S.J. RES. 83, S.J. RES.
92.  ALL WOULD HAVE CONFIRMED THE RIGHTS IN THE FEDERAL GOVERNMENT. 

1945-1946, 79TH CONGRESS: 

H.J. RES. 118 AND 17 SIMILAR BILLS, H.J. RES. 225, S.J. RES. 48.  ALL
WOULD HAVE QUITCLAIMED RIGHTS TO THE STATES WITHIN THEIR BOUNDARIES. 
H.J. RES. 225 WAS PASSED BY BOTH HOUSES BUT VETOED BY PRESIDENT
TRUMAN. 

1948, 80TH CONGRESS, 2D SESSION: 

H.R. 5992 AND S. 1988 (QUITCLAIM MEASURES); S. 2222, H.R. 5890, AND
S. 2165 (TO CONFIRM STATES' RIGHTS IN LANDS UNDERLYING INLAND WATERS
AND THE FEDERAL GOVERNMENT'S RIGHTS IN LANDS UNDERLYING THE MARGINAL
SEA).  H.R. 5992 WAS PASSED BY THE HOUSE. 

1949-1950, 81ST CONGRESS: 

1ST SESS: H.R. 5991, H.R. 5992 ("COMPROMISE" BILLS); S. 155, S. 1545
(QUITCLAIM MEASURES); S. 923, S. 2153, H.R. 354 (TO CONFIRM STATES'
RIGHTS IN LANDS BENEATH INLAND WATERS AND FEDERAL GOVERNMENT'S RIGHTS
IN LANDS BENEATH MARGINAL SEAS); S. 1700 (TO ESTABLISH A FEDERAL
RESERVE).  2D SESS: H.R. 8137 (QUITCLAIM MEASURE); S.J. RES. 195
(INTERIM MANAGEMENT BILL). 

1951-1952, 82D CONGRESS: 

S.J. RES. 20, H.J. RES. 131, H.J. RES. 274 (INTERIM MANAGEMENT
BILLS); H.R. 4484, S. 940 (QUITCLAIM MEASURES).  H.R. 4484 WAS PASSED
BY THE HOUSE IN THE 1ST SESSION; S.J. RES. 20 WAS PASSED BY THE SENATE
AFTER AMENDING IT BY SUBSTITUTING THEREFOR S. 940, IN THE 2D SESSION. 
S.J. RES. 20 AS AMENDED PREVAILED IN CONFERENCE, BUT WAS VETOED BY
PRESIDENT TRUMAN. 

1953, 83D CONGRESS, 1ST SESSION: 

H.R. 2948 AND 40 OTHER BILLS, RESULTING IN DRAFTING OF H.R. 4198 BY
COMMITTEE, S.J. RES.  13 (QUITCLAIM MEASURES); H.R. 5134, S. 1901 (TO
PROVIDE FOR ADMINISTRATION OF SUBMERGED LANDS SEAWARD OF THOSE GRANTED
TO STATES AND TO THE EDGE OF CONTINENTAL SHELF).  S.J. RES. 13 BECAME
THE SUBMERGED LANDS ACT, AND S. 1901 BECAME THE OUTER CONTINENTAL SHELF
LANDS ACT. 

FN5  SECTION 3 PROVIDES: 

"(A)  IT IS HEREBY DETERMINED AND DECLARED TO BE IN THE PUBLIC
INTEREST THAT (1) TITLE TO AND OWNERSHIP OF THE LANDS BENEATH NAVIGABLE
WATERS WITHIN THE BOUNDARIES OF THE RESPECTIVE STATES, AND THE NATURAL
RESOURCES WITHIN SUCH LANDS AND WATERS, AND (2) THE RIGHT AND POWER TO
MANAGE, ADMINISTER, LEASE, DEVELOP, AND USE THE SAID LANDS AND NATURAL
RESOURCES ALL IN ACCORDANCE WITH APPLICABLE STATE LAW BE, AND THEY ARE
HEREBY, SUBJECT TO THE PROVISIONS HEREOF, RECOGNIZED, CONFIRMED,
ESTABLISHED, AND VESTED IN AND ASSIGNED TO THE RESPECTIVE STATES OR THE
PERSONS WHO WERE ON JUNE 5, 1950, ENTITLED THERETO UNDER THE LAW OF THE
RESPECTIVE STATES IN WHICH THE LAND IS LOCATED, AND THE RESPECTIVE
GRANTEES, LESSEES, OR SUCCESSORS IN INTEREST THEREOF: 

"(B)(1)  THE UNITED STATES HEREBY RELEASES AND RELINQUISHES UNTO SAID
STATES AND PERSONS AFORESAID, EXCEPT AS OTHERWISE RESERVED HEREIN, ALL
RIGHT, TITLE, AND INTEREST OF THE UNITED STATES, IF ANY IT HAS, IN AND
TO ALL SAID LANDS, IMPROVEMENTS, AND NATURAL RESOURCES; (2) THE UNITED
STATES HEREBY RELEASES AND RELINQUISHES ALL CLAIMS OF THE UNITED
STATES, IF ANY IT HAS, FOR MONEY OR DAMAGES ARISING OUT OF ANY
OPERATIONS OF SAID STATES OR PERSONS PURSUANT TO STATE AUTHORITY UPON
OR WITHIN SAID LANDS AND NAVIGABLE WATERS  ...  ." 

FN6  NINE MARINE, NAUTICAL, OR GEOGRAPHIC MILES, OR APPROXIMATELY 10
1/2 LAND, STATUTE OR ENGLISH MILES. 

FN7  SECTION 2 PROVIDES: 

"(A)  THE TERM 'LANDS BENEATH NAVIGABLE WATERS' MEANS:

      *         *         *         *         * 

"(2)  ALL LANDS PERMANENTLY OR PERIODICALLY COVERED BY TIDAL WATERS
UP TO BUT NOT ABOVE THE LINE OF MEAN HIGH TIDE AND SEAWARD TO A LINE
THREE GEOGRAPHICAL MILES DISTANT FROM THE COAST LINE OF EACH SUCH STATE
AND TO THE BOUNDARY LINE OF EACH SUCH STATE WHERE IN ANY CASE SUCH
BOUNDARY AS IT EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE
UNION, OR AS HERETOFORE APPROVED BY CONGRESS, EXTENDS SEAWARD (OR INTO
THE GULF OF MEXICO) BEYOND THREE GEOGRAPHICAL MILES  ...  .

      *         *         *         *     * 

"(B) THE TERM 'BOUNDARIES' INCLUDES THE SEAWARD BOUNDARIES OF A STATE
OR ITS BOUNDARIES IN THE GULF OF MEXICO OR ANY OF THE GREAT LAKES AS
THEY EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE UNION, OR AS
HERETOFORE APPROVED BY THE CONGRESS, OR AS EXTENDED OR CONFIRMED
PURSUANT TO SECTION 4 HEREOF BUT IN NO EVENT SHALL THE TERM
'BOUNDARIES' OR THE TERM 'LANDS BENEATH NAVIGABLE WATERS' BE
INTERPRETED AS EXTENDING FROM THE COAST LINE MORE THAN THREE
GEOGRAPHICAL MILES INTO THE ATLANTIC OCEAN OR THE PACIFIC OCEAN, OR
MORE THAN THREE MARINE LEAGUES INTO THE GULF OF MEXICO: 

"(C)  THE TERM 'COAST LINE' MEANS THE LINE OF ORDINARY LOW WATER
ALONG THAT PORTION OF THE COAST WHICH IS IN DIRECT CONTACT WITH THE
OPEN SEA AND THE LINE MARKING THE SEAWARD LIMIT OF INLAND WATERS  ...
." 

FN8  SECTION 4 PROVIDES: 

"THE SEAWARD BOUNDARY OF EACH ORIGINAL COASTAL STATE IS HEREBY
APPROVED AND CONFIRMED AS A LINE THREE GEOGRAPHICAL MILES DISTANT FROM
ITS COAST LINE  ...  .  ANY STATE ADMITTED SUBSEQUENT TO THE FORMATION
OF THE UNION WHICH HAS NOT ALREADY DONE SO MAY EXTEND ITS SEAWARD
BOUNDARIES TO A LINE THREE GEOGRAPHICAL MILES DISTANT FROM ITS COAST
LINE  ...  .  ANY CLAIM HERETOFORE OR HEREAFTER ASSERTED EITHER BY
CONSTITUTIONAL PROVISION, STATUTE, OR OTHERWISE, INDICATING THE INTENT
OF A STATE SO TO EXTEND ITS BOUNDARIES IS HEREBY APPROVED AND
CONFIRMED, WITHOUT PREJUDICE TO ITS CLAIM, IF ANY IT HAS, THAT ITS
BOUNDARIES EXTEND BEYOND THAT LINE.  NOTHING IN THIS SECTION IS TO BE
CONSTRUED AS QUESTIONING OR IN ANY MANNER PREJUDICING THE EXISTENCE OF
ANY STATE'S SEAWARD BOUNDARY BEYOND THREE GEOGRAPHICAL MILES IF IT WAS
SO PROVIDED BY ITS CONSTITUTION OR LAWS PRIOR TO OR AT THE TIME SUCH
STATE BECAME A MEMBER OF THE UNION, OR IF IT HAS BEEN HERETOFORE
APPROVED BY CONGRESS." 

FN9  SECTION 6(A) PROVIDES: 

"THE UNITED STATES RETAINS ALL ITS NAVIGATIONAL SERVITUDE AND RIGHTS
IN AND POWERS OF REGULATION AND CONTROL OF SAID LANDS AND NAVIGABLE
WATERS FOR THE CONSTITUTIONAL PURPOSES OF COMMERCE, NAVIGATION,
NATIONAL DEFENSE, AND INTERNATIONAL AFFAIRS, ALL OF WHICH SHALL BE
PARAMOUNT TO, BUT SHALL NOT BE DEEMED TO INCLUDE, PROPRIETARY RIGHTS OF
OWNERSHIP, OR THE RIGHTS OF MANAGEMENT, ADMINISTRATION, LEASING, USE,
AND DEVELOPMENT OF THE LANDS AND NATURAL RESOURCES WHICH ARE
SPECIFICALLY RECOGNIZED, CONFIRMED, ESTABLISHED, AND VESTED IN AND
ASSIGNED TO THE RESPECTIVE STATES AND OTHERS BY SECTION 3 OF THIS
ACT." 

FN10  SECTION 9 PROVIDES: 

"NOTHING IN THIS ACT SHALL BE DEEMED TO AFFECT IN ANY WISE THE RIGHTS
OF THE UNITED STATES TO THE NATURAL RESOURCES OF THAT PORTION OF THE
SUBSOIL AND SEABED OF THE CONTINENTAL SHELF LYING SEAWARD AND OUTSIDE
OF THE AREA OF LANDS BENEATH NAVIGABLE WATERS, AS DEFINED IN SECTION 2
HEREOF, ALL OF WHICH NATURAL RESOURCES APPERTAIN TO THE UNITED STATES,
AND THE JURISDICTION AND CONTROL OF WHICH BY THE UNITED STATES IS
HEREBY CONFIRMED." 

LATER IN THE SAME YEAR, CONGRESS PASSED THE OUTER CONTINENTAL SHELF
LANDS ACT, 67 STAT. 462, 43 U.S.C. SECS. 1331-1343, WHICH PROVIDES IN
DETAIL FOR FEDERAL EXPLOITATION OF THE SUBMERGED LANDS OF THE
CONTINENTAL SHELF BEYOND THOSE GRANTED TO THE STATES BY THE SUBMERGED
LANDS ACT. 

FN11  SEE S. REP. NO. 133, 83D CONG., 1ST SESS., PT. 2 (MINORITY
VIEWS), 6. 

FN12  THIS HOLDING WAS APPROVED IN A CONSIDERABLE NUMBER OF
SUBSEQUENT CASES.  SEE, E.G., SMITH V. MARYLAND, 18 HOW.  71, 74;
MUMFORD V. WARDWELL, 6 WALL.  423, 436; WEBER V. HARBOR COMMISSIONERS,
18 WALL.  57, 65-66; MCCREADY V. VIRGINIA, 94 U.S. 391, 394; SHIVELY V.
BOWLBY, 152 U.S. 1, 26-28; MANCHESTER V. MASSACHUSETTS, 139 U.S. 240,
259-260; UNITED STATES V. MISSION ROCK CO., 189 U.S. 391, 404;
LOUISIANA V. MISSISSIPPI, 202 U.S. 1, 52; THE ABBY DODGE, 223 U.S. 166,
174; BORAX, LTD., V. LOS ANGELES, 296 U.S. 10, 15-16.  SEE ALSO MARTIN
V. WADDELL, 16 PET. 367, 410.    FN13  THIS COURT IN THE CALIFORNIA
CASE, SUPRA, AT 36, STATED THAT IN FOLLOWING THE POLLARD CASE, IT HAD
PREVIOUSLY "USED LANGUAGE STRONG ENOUGH TO INDICATE THAT THE COURT THEN
BELIEVED THAT STATES NOT ONLY OWNED TIDELANDS AND SOIL UNDER NAVIGABLE
INLAND WATERS, BUT ALSO OWNED SOILS UNDER ALL NAVIGABLE WATERS WITHIN
THEIR TERRITORIAL JURISDICTION, WHETHER INLAND OR NOT." 

FN14  SEE S. REP. NO. 133, 83D CONG., 1ST SESS. 21. 

FN15  ONE ENGLISH, STATUTE, OR LAND MILE EQUALS APPROXIMATELY .87
MARINE, NAUTICAL, OR GEOGRAPHICAL MILE.  THE CONVENTIONAL "3-MILE
LIMIT" UNDER INTERNATIONAL LAW REFERS TO THREE MARINE MILES, OR
APPROXIMATELY 3.45 LAND MILES. 

FN16  SEE NOTE 4, ANTE.  THE LEGISLATIVE HISTORY OF ALL THE BILLS
CONSIDERED PRIOR TO ENACTMENT OF THE SUBMERGED LANDS ACT IN 1953 IS
DIRECTLY RELEVANT TO THE LATTER ACT, SINCE THE PURPOSES AND PHRASEOLOGY
OF SUCH BILLS, AND THE OBJECTIONS RAISED AGAINST THEM WERE
SUBSTANTIALLY SIMILAR.  DURING THE HEARINGS ON THE FINAL BILLS, ALL
PRIOR HEARINGS ON PREDECESSOR BILLS WERE EXPRESSLY INCORPORATED INTO
THE RECORD, SEE HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 83D CONG., 1ST SESS., ON H.R. 2948 AND
SIMILAR BILLS 1-2 (HEREINAFTER CITED AS 1953 HOUSE HEARINGS); HEARINGS
BEFORE THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS ON S.J.
RES. 13 AND OTHER BILLS 6-8 (HEREINAFTER CITED AS 1953 SENATE
HEARINGS), AND SIMILAR REFERENCES TO PAST HEARINGS AND DEBATES WERE
MADE ON THE FLOOR OF CONGRESS, SEE 99 CONG.  REC. 2554, 2613, 4097. 

FN17  H.R. REP. NO. 1778, 80TH CONG., 2D SESS., TO ACCOMPANY H.R.
5992, AT 1, 2, 3, 16 (APR. 21, 1948):  "H.R. 5992 IS, IN SUBSTANCE, THE
SAME AS NUMEROUS BILLS INTRODUCED IN THE HOUSE  ...  .  THE
AFOREMENTIONED BILLS WERE INTRODUCED IN THE CONGRESS TO PRESERVE THE
STATUS QUO AS IT WAS THOUGHT TO BE PRIOR TO THE CALIFORNIA DECISION
...  TO CONFIRM AND ESTABLISH THE RIGHTS AND CLAIMS OF THE 48 STATES,
LONG ASSERTED AND ENJOYED WITH THE APPROVAL OF THE FEDERAL GOVERNMENT,
TO THE LANDS AND RESOURCES BENEATH NAVIGABLE WATERS WITHIN THEIR
BOUNDARIES  ...  .  THE REPEATED ASSERTIONS BY OUR HIGHEST COURT FOR A
PERIOD OF MORE THAN A CENTURY OF THE DOCTRINE OF STATE OWNERSHIP OF ALL
NAVIGABLE WATERS, WHETHER INLAND OR NOT, AND THE UNIVERSAL BELIEF THAT
SUCH WAS THE SETTLED LAW, HAVE FOR ALL PRACTICAL PURPOSES ESTABLISHED A
PRINCIPLE WHICH THE COMMITTEE BELIEVES SHOULD AS A MATTER OF POLICY BE
RECOGNIZED AND CONFIRMED BY CONGRESS AS A RULE OF PROPERTY LAW." 

S. REP. NO. 1592, 80TH CONG., 2D SESS., TO ACCOMPANY S. 1988, AT 17
18 (JUNE 10, 1948), AFTER NOTING THAT THE LEGAL PROFESSION HAD LONG
BELIEVED THAT THE STATES OWNED THE LANDS UNDER NAVIGABLE WATERS WITHIN
THEIR TERRITORIAL JURISDICTION, WENT ON TO COMMENT: 

"THE EVIDENCE IS CONCLUSIVE THAT NOT ONLY DID OUR MOST EMINENT JURISTS
SO BELIEVE THE LAW TO BE, BUT SUCH WAS THE BELIEF OF LOWER FEDERAL
COURT JURISTS AND STATE SUPREME COURT JURISTS AS REFLECTED BY MORE THAN
200 OPINIONS.  THE PRONOUNCEMENTS WERE ACCEPTED AS THE SETTLED LAW BY
LAWYERS AND AUTHORS OF LEADING LEGAL TREATISES. 

"THE PRESENT COURT IN THE CALIFORNIA DECISION DID NOT EXPRESSLY
OVERRULE THESE PRIOR SUPREME COURT OPINIONS BUT, IN EFFECT, SAID THAT
ALL THE EMINENT AUTHORITIES WERE IN ERROR IN THEIR BELIEF. 

"FOR THE FIRST TIME IN HISTORY THE COURT DREW A DISTINCTION BETWEEN
THE LEGAL PRINCIPLES APPLICABLE TO BAYS, HARBORS, SOUNDS, AND OTHER
INLAND WATERS ON THE ONE HAND, AND TO SUBMERGED LANDS LYING SEAWARD OF
THE LOW-WATER MARK ON THE OTHER, ALTHOUGH IT APPEARS THE COURT HAD
AMPLE OPPORTUNITY TO DO SO IN MANY PREVIOUS CASES, BUT FAILED OR
REFUSED TO DRAW SUCH DISTINCTION.  IN THE CALIFORNIA DECISION THE COURT
REFUSED TO APPLY WHAT IT TERMED 'THE OLD INLAND WATER RULE' TO THE
SUBMERGED COASTAL LANDS; HOWEVER, HISTORICALLY SPEAKING, IT SEEMS CLEAR
THAT THE RULE OF STATE OWNERSHIP OF INLAND WATERS IS, IN FACT, AN
OFFSHOOT OF THE MARGINAL SEA RULE ESTABLISHED MUCH EARLIER." 

H.R. REP. NO. 695, 82D CONG., 1ST SESS., TO ACCOMPANY H.R. 4484, AT 5
(JULY 12, 1951): 

"TITLE II MERELY FIXES AS THE LAW OF THE LAND THAT WHICH, THROUGHOUT
OUR HISTORY PRIOR TO THE SUPREME COURT DECISION IN THE CALIFORNIA CASE
IN 1947, WAS GENERALLY BELIEVED AND ACCEPTED TO BE THE LAW OF THE LAND;
NAMELY, THAT THE RESPECTIVE STATES ARE THE SOVEREIGN OWNERS OF THE LAND
BENEATH NAVIGABLE WATERS WITHIN THEIR BOUNDARIES AND OF THE NATURAL
RESOURCES WITHIN SUCH LANDS AND WATERS.  THEREFORE, TITLE II
RECOGNIZES, CONFIRMS, VESTS, AND ESTABLISHES IN THE STATES THE TITLE TO
THE SUBMERGED LANDS, WHICH THEY HAVE LONG CLAIMED, OVER WHICH THEY HAVE
ALWAYS EXERCISED ALL THE RIGHTS AND ATTRIBUTES OF OWNERSHIP." 

S. REP. NO. 133, 83D CONG., 1ST SESS., TO ACCOMPANY S.J. RES. 13, AT
7-8 (MAR. 27, 1953): 

"ALL OF THESE AREAS OF SUBMERGED LANDS HAVE BEEN TREATED ALIKE IN
THIS LEGISLATION BECAUSE THEY HAVE BEEN POSSESSED, USED, AND CLAIMED BY
THE STATES UNDER THE SAME RULE OF LAW, TO WIT: THAT THE STATES OWN ALL
LANDS BENEATH NAVIGABLE WATERS WITHIN THEIR RESPECTIVE BOUNDARIES. 
PRIOR TO THE CALIFORNIA DECISION, NO DISTINCTION HAD BEEN MADE BETWEEN
LANDS BENEATH INLAND WATERS AND LANDS BENEATH SEAWARD WATERS SO LONG AS
THEY WERE WITHIN STATE BOUNDARIES. 

"THE RULE WAS STATED BY THE SUPREME COURT IN THE EARLY CASE OF
POLLARD V. HAGAN  ...  . 

     *    *         *         *         * 

"THE PURPOSE OF THIS LEGISLATION IS TO WRITE THE LAW FOR THE FUTURE
AS THE SUPREME COURT BELIEVED IT TO BE IN THE PAST - THAT THE STATES
SHALL OWN AND HAVE PROPRIETARY USE OF ALL LANDS UNDER NAVIGABLE WATERS
WITHIN THEIR TERRITORIAL JURISDICTION, WHETHER INLAND OR SEAWARD,
SUBJECT ONLY TO THE GOVERNMENTAL POWERS DELEGATED TO THE UNITED STATES
BY THE CONSTITUTION." 

FN18  FOR EXAMPLE, THE VERY FIRST "QUITCLAIM" BILL INTRODUCED IN
CONGRESS - H.J. RES. 118, 79TH CONG., 1ST SESS., PROVIDED: 

"RESOLVED  ...  THAT, IN CONSIDERATION OF THE PREMISES, THE UNITED
STATES OF AMERICA HEREBY RELEASES, REMISES, AND QUITCLAIMS ALL RIGHT,
TITLE, INTEREST, CLAIM, OR DEMAND OF THE UNITED STATES OF AMERICA IN
AND TO ALL LANDS BENEATH TIDEWATERS AND ALL LANDS BENEATH NAVIGABLE
WATERS WITHIN THE BOUNDARIES OF EACH OF THE RESPECTIVE STATES  ...  ." 

FN19  SEE, E.G., 91 CONG. REC. 8867 (REMARKS OF REPRESENTATIVE
GEARHART); 92 CONG. REC. 10310 (REMARKS OF REPRESENTATIVE SUMNERS). 
SEE ALSO 92 CONG. REC. 9519 (REMARKS OF SENATOR OVERTON). 

FN20  H.J. RES. 118, 79TH CONG., 1ST SESS.; H.J. RES. 225, 79TH
CONG., 1ST SESS.; H.R. 5992, 80TH CONG., 2D SESS.; S. 1988, 80TH CONG.,
2D SESS.  H.J. RES. 118 AND H.J. RES. 225 USED THE TERM "LANDS BENEATH
TIDEWATERS" TO DENOTE THE LANDS BENEATH THE NAVIGABLE WATERS OF THE
MARGINAL SEA. 

FN21  SEE H.R. REP. NO. 927, 79TH CONG., 1ST SESS., TO ACCOMPANY H.J.
RES. 225, AT 2 (JULY 17, 1945):  "THE OWNERSHIP BY THE STATES OF THESE
LANDS AS ABOVE STATED IS COEXTENSIVE WITH THE STATES' BOUNDARIES, WHICH
IN THE CASE OF THE COASTAL STATES IS IN NO INSTANCE LESS THAN 3 MILES
FROM THE COAST LINE."  92 CONG. REC. 9541 (REMARKS OF SENATOR CORDON):
"THE JOINT RESOLUTION IS LIMITED TO THOSE SUBMERGED LANDS WITHIN THE
BOUNDARIES OF THE SEVERAL STATES, WITH THIS EXCEPTION, THAT IF THERE
SHOULD BE - AND THERE CONCEIVABLY CANNOT BE A STATE WHOSE BOUNDARY DID
NOT GO 3 MILES AT SEA - THEN IT WOULD COVER 3 MILES AT SEA." 

FN22  CALIFORNIA CONSTITUTION OF 1849, ART. XII, SEC. 1.  CALIFORNIA
CLAIMED THAT THIS BOUNDARY WAS RATIFIED BY THE ACT ADMITTING IT TO THE
UNION.  9 STAT. 452.  SEE 92 CONG. REC. 9614 (REMARKS OF SENATOR
KNOWLAND).  ATTORNEY GENERAL CLARK TESTIFIED THAT SIX OF THE 11
ORIGINAL COASTAL STATES HAD NOT YET EXPRESSLY CLAIMED A THREE-MILE
BOUNDARY IN THE MARGINAL SEA, AND THAT THE OTHER FIVE HAD DONE SO
UNILATERALLY LONG SUBSEQUENT TO THE FORMATION OF THE UNION -
MASSACHUSETTS IN 1859 (SEE STAT. 1859, C. 289, AS AMENDED, MASS. GEN.
LAWS ANN., C. 1, SEC. 3), RHODE ISLAND IN 1872 (R.I. GEN. STAT. 1872,
C. 1, SEC. 1), NEW JERSEY IN 1906 (SEE N.J. STAT. ANN., TIT. 40, SEC.
18-5), NEW HAMPSHIRE IN 1901 (N.H. LAWS 1901, C. 115), AND GEORGIA IN
1916 (SEE ACTS 1916, P. 29, GA. CODE ANN. SEC. 15-101). 

FN23  SEE 92 CONG. REC. 9524-9526 (REMARKS OF SENATOR DONNELL); JOINT
HEARINGS BEFORE THE COMMITTEES ON THE JUDICIARY OF THE CONGRESS ON S.
1988 AND SIMILAR HOUSE BILLS, 80TH CONG., 2D SESS. 885-895 (HEREINAFTER
CITED AS 1948 JOINT HEARINGS). 

FN24  ID., 93-95, 884-886. 

FN25  BECAUSE OF FEARS THAT THIS PERMISSION TO EXTEND BOUNDARIES
WOULD NOT PROTECT GRANTEES OF THE ORIGINAL STATES WHO HAD RECEIVED
THEIR GRANTS AT A TIME WHEN THE STATE HAD NOT YET EXPRESSLY EXTENDED
ITS BOUNDARIES, A PROVISION WAS SUBSEQUENTLY INSERTED AS THE FIRST
SENTENCE OF SEC.  4 OF THE PRESENT ACT, ABSOLUTELY CONFIRMING THE
BOUNDARY OF EACH ORIGINAL STATE AT THREE MILES.  SEE 1953 SENATE
HEARINGS, PT. II (EXEC. SESS.), 1316; 99 CONG. REC. 2697.  THE LAST
SENTENCE OF SEC. 4 WAS FIRST INSERTED WITHOUT EXPLANATION IN H.R. 8137,
81ST CONG., 2D SESS., AND WAS CARRIED FORWARD AS PART OF S.J. RES. 20,
82D CONG., 2D SESS., AS IT WAS AMENDED AND PASSED BY CONGRESS AND
VETOED BY PRESIDENT TRUMAN.  SEE 98 CONG. REC. 2886. 

FN26  SEE 91 CONG. REC. 8858; 92 CONG. REC. 10310.  SEE ALSO
MANCHESTER V. MASSACHUSETTS, 139 U.S. 240, 257, 258. 

FN27  SEE, E.G., 98 CONG. REC. 2884-2885 (REMARKS OF SENATOR
HOLLAND).  SEE ALSO H.R. REP.  NO. 927, 79TH CONG., 1ST SESS. 2. 

FN28  SEE 98 CONG. REC. 3351 (REMARKS OF SENATOR HOLLAND); 1953 HOUSE
HEARINGS 222 (REMARKS OF ATTORNEY GENERAL BROWNELL); 99 CONG. REC.
2757, 2922-2923, 4095 (REMARKS OF SENATOR HOLLAND).  SOLICITOR GENERAL
PERLMAN, WHILE REJECTING THE IDEA THAT THE EXISTENCE OF A SEAWARD
BOUNDARY ENTITLED THE STATE TO OWNERSHIP OF THE UNDERLYING LANDS,
STATED THAT CALIFORNIA WAS ENTITLED TO A BOUNDARY FOR OTHER PURPOSES OF
THREE NAUTICAL MILES, AS OPPOSED TO THE THREE ENGLISH MILES ASSERTED BY
ITS CONSTITUTION, BECAUSE OF THE FEDERAL THREE-MILE POLICY.  HEARINGS
BEFORE THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, ON S.J.
RES. 20 AND S. 940, 82D CONG., 1ST SESS. 40 (HEREINAFTER CITED AS 1951
SENATE HEARINGS). 

FN29  SEE 92 CONG. REC. 9541 (REMARKS OF SENATOR CORDON); ID., 9619
(REMARKS OF SENATOR CAPEHART); 99 CONG. REC. 3265 (REMARKS OF SENATOR
HILL). 

FN30  LEANDER I. SHELLEY, COUNSEL FOR THE PORT AUTHORITIES, WHOSE
PROPOSAL THAT ALL STATES BE PERMITTED TO EXTEND THEIR BOUNDARIES TO
THREE MILES WAS ADOPTED BY THE COMMITTEE, SAID:  "MY POSITION IS THAT
PRIOR TO THE DECISION OF THE SUPREME COURT IN THE CALIFORNIA CASE,
PRACTICALLY EVERYBODY CONCERNED  ...  WAS UNDER THE IMPRESSION THAT ALL
THE COASTAL STATES OWNED THE LAND FOR 3 MILES OUT  ...  . 

"WHETHER THEIR FAILURE TO BE IN THAT POSITION IS BECAUSE OF A TITLE
QUESTION OR BOUNDARY QUESTION IS IMMATERIAL TO US.  OUR POSITION IS
THAT THEY SHOULD BE RESTORED TO WHERE THEY THOUGHT THEY WERE."   1948
JOINT HEARINGS 894.  SEE ALSO 92 CONG. REC. 9515-9516 (REMARKS OF
SENATOR O'MAHONEY); ID., 9519 (REMARKS OF SENATOR OVERTON); 99 CONG.
REC. 4095 (REMARKS OF SENATOR HOLLAND). 

FN31  SEE 98 CONG. REC. 3351-3352 (REMARKS OF SENATOR HOLLAND). 

FN32  E.G., 91 CONG. REC. 8867; 92 CONG. REC. 9518; HEARINGS BEFORE
THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS ON S. 155, S. 923,
S. 1545, S. 1700, AND S. 2153, 81ST CONG., 1ST SESS. 131 (HEREINAFTER
CITED AS 1949 SENATE HEARINGS); 1953 SENATE HEARINGS 212-234; 99 CONG.
REC. 2620, 2830, 4171-4175. 

FN33  E.G., 92 CONG. REC. 9516; 99 CONG. REC. 2621, 2752, 4095-4096. 

FN34  SEE 1949 SENATE HEARINGS 187; 98 CONG. REC. 3352; 1953 SENATE
HEARINGS 47-48, 536, 1093, 1115; 99 CONG. REC. 2896. 

FN35  HEARINGS BEFORE THE SENATE JUDICIARY COMMITTEE ON S.J. RES. 48
AND H.J. RES. 225, 79TH CONG., 2D SESS. 228-230 (HEREINAFTER CITED AS
1946 SENATE HEARINGS); 1951 SENATE HEARINGS 420. 

FN36  THE STRUCTURE OF SEC. 4 WAS SO EXPLAINED BY SENATORS CORDON,
HOLLAND, AND LONG.  1953 SENATE HEARINGS, PT. II (EXEC. SESS.), 1317
1318; 99 CONG. REC. 2621, 2698, 4095-4096. 

FN37  92 CONG. REC. 9441-9442, 9516; 1953 SENATE HEARINGS 48-49; ID.,
PT. II (EXEC. SESS.), 1318, 1414 -1415; 99 CONG. REC. 2558-2559, 2620
2622, 2632-2633, 2694-2695, 2703, 2746, 2754-2755, 2757, 2896-2897,
2933, 4095-4096, 4116. 

FN38  98 CONG. REC. 3347, 3350 (SENATORS CONNALLY AND HOLLAND); 1953
HOUSE HEARINGS 181, 195 (SECRETARY OF THE INTERIOR MCKAY); 1953 SENATE
HEARINGS 957 (ATTORNEY GENERAL BROWNELL); LETTER FROM PRESIDENT
EISENHOWER TO JACK PORTER, REPUBLICAN NATIONAL COMMITTEEMAN, DEC. 4,
1957, REPORTED IN HOUSTON POST, DEC. 7, 1957, SEC. 1, PP. 1-2; LETTER
FROM PRESIDENT EISENHOWER TO SENATOR ANDERSON, APR. 24, 1953, REPRINTED
IN 99 CONG. REC. 3865; LETTER FROM PRESIDENT EISENHOWER TO PRICE
DANIEL, GOVERNOR OF TEXAS, NOV. 7, 1957, PRINTED AT P. 294 OF TEXAS'
BRIEF. 

FN39  H.J. RES. 118, 79TH CONG., 1ST SESS.; H.J. RES. 225, S.J. RES.
48, 79TH CONG., 2D SESS.; S. 1988 AND H.R. 5992, 80TH CONG., 2D SESS. 

FN40  SEE, E.G., 1946 SENATE HEARINGS 183; 91 CONG. REC. 8867; 92
CONG. REC. 9515-9518. 

FN41  E.G., 92 CONG. REC. 9518, 9628 (REMARKS OF SENATOR CONNALLY);
ID., 9524 (REMARKS OF SENATOR DONNELL). 

FN42  LA. ACT NO. 55 OF 1938, LA. REV. STAT. 49:1 (27 MILES); ACT OF
MAY 16, 1941, L. TEX., 47TH LEG., P. 454 (27 MILES), ACT OF MAY 23,
1947, L. TEX., 50TH LEG., P. 451 (OUTER EDGE OF CONTINENTAL SHELF),
VERNON'S TEX. CIV. STAT., ART. 5415A.  SEE ALSO ACT OF MAY 25, 1947, L.
TEX., 50TH LEG., P. 490, VERNON'S TEX. CIV. STAT., ART. 1592A
(BOUNDARIES OF COUNTIES EXTENDED TO EDGE OF CONTINENTAL SHELF).    FN43
AN AMENDMENT WAS FIRST PROPOSED FOR THAT PURPOSE BY SENATOR CAPEHART
ON THE FLOOR DURING CONSIDERATION OF H.J. RES. 225, 79TH CONG., 2D
SESS., 92 CONG. REC. 9541, 9619.  IT DID NOT CONTAIN THE "HERETOFORE
APPROVED BY CONGRESS" PROVISION (SEE NOTE 7, ANTE), AND WAS DEFEATED,
APPARENTLY ON THE GROUND THAT THE BOUNDARIES OF SOME STATES MIGHT HAVE
BEEN LAWFULLY ALTERED SINCE THEIR ADMISSION.  SEE 92 CONG. REC. 9630
(REMARKS OF SENATOR MCCARRAN); ID., 9632 (AMENDMENT DEFEATED).  DURING
THE EIGHTIETH CONGRESS, SECOND SESSION, H.R. 5992 AND S. 1988 WERE
ORIGINALLY INTRODUCED WITH PRESENT BOUNDARIES STILL THE MEASURE OF THE
GRANT.  DURING THE HEARINGS ON THE BILLS, THE MATTER OF UNILATERAL
EXTENSIONS WAS CALLED TO THE COMMITTEE'S ATTENTION SEVERAL TIMES.  1948
JOINT HEARINGS 653-654 (ATTORNEY GENERAL CLARK), ID., 734 (SECRETARY OF
THE INTERIOR KRUG), AND AN AMENDMENT SPECIFICALLY INCORPORATING THE
TWOFOLD TEST OF THE PRESENT ACT WAS PROPOSED TO THE COMMITTEE BY
LEANDER I. SHELLEY, COUNSEL FOR THE PORT AUTHORITIES, ID., 886.  BOTH
H.R. 5992 AND S. 1988, WHEN REPORTED OUT OF COMMITTEE, INCORPORATED THE
PROPOSED CHANGE.  SEE 94 CONG. REC. 5154, S. REP. NO. 1592, 80TH CONG.,
2D SESS. 2. 

FN44 REPRESENTATIVE WILLIS OF LOUISIANA MADE CLEAR THE NATURE OF THE
INQUIRY IT WAS CONTEMPLATED THE COURTS WOULD MAKE TO ASCERTAIN THE
LOCATION OF "HISTORIC BOUNDARIES": 

"MR. WILLIS.  DO YOU KNOW OF A BETTER CRITERIA THAN A HISTORIC
APPROACH? 

"SECRETARY MCKAY.  NO, SIR. 

"MR. WILLIS.  LET US APPLY THAT CRITERIA TO TEXAS, FOR INSTANCE, AND
I THINK YOU AND I ARE IN THOROUGH AGREEMENT.  TEXAS WAS A REPUBLIC. 
THE REPUBLIC OF TEXAS TOOK CERTAIN ACTION.  THEN THERE WAS A TREATY
BETWEEN THE REPUBLIC OF TEXAS AND THE UNITED STATES PRELIMINARY TO
ADMISSION.  THERE MIGHT HAVE BEEN MAPS EXHIBITED OR MAPS IN EXISTENCE
AT THAT TIME.  THEN CONGRESS PASSED AN ACT ADMITTING TEXAS INTO THE
UNION, AND THEN TEXAS ADOPTED A CONSTITUTION DELIMITING ITS HISTORIC
BOUNDARIES.  THOSE ARE THE HISTORIC DOCUMENTS THAT SET FORTH TEXAS'
TITLE; IS THAT CORRECT? 

"SECRETARY MCKAY.  THAT IS RIGHT.  IF MY MEMORY IS CORRECT, THE
UNITED STATES WOULD NOT TAKE THE LAND.  THEY GAVE IT BACK TO TEXAS. 

"MR. WILLIS.  THAT IS RIGHT.  THERE IS NOTHING UNUSUAL ABOUT THAT. 
LET ME ILLUSTRATE THE POINT IN THIS WAY.  I KNOW YOU ARE NOT A LAWYER,
BUT I THINK YOU CAN FOLLOW THIS.  IF A FARMER SHOULD CONSULT A LAWYER
TO FIND OUT WHAT THE LIMITS OF HIS FARM ARE, THAT LAWYER WOULD HAVE TO
EXAMINE THE PAPERS.  HE WOULD HAVE TO GO FIRST TO THE PATENT.  HE WOULD
HAVE TO CONSULT ALL THE DEEDS IN THE CHAIN OF TITLE.  THERE MIGHT BE
MAPS ATTACHED TO THOSE DEEDS WHICH HELP TO INTERPRET THEM.  AFTER HIS
STUDY HE WOULD GIVE AN OPINION ON THE LIMITS, BASED UPON THE HISTORY OF
THAT TITLE, AND EVERY LINK IN THE CHAIN. 

      *         *    *         *         * 

"  ...  THERE HAS BEEN SOME TALK HERE THIS MORNING ABOUT 3 MILES. 
THE PRINCIPLE, THOUGH, THAT I THINK YOU AND I AGREE ON IS THAT WE HAVE
TO GO TO THE DOCUMENTS TO FIND OUT WHAT OUR HISTORIC BOUNDARIES ARE? 

"SECRETARY MCKAY.  YET, SIR."  1953 HOUSE HEARINGS 197-198. 

AND ON THE FLOOR OF THE HOUSE, HE EXPLAINED "HISTORIC BOUNDARIES" AS
FOLLOWS: 

"YOU WILL HEAR A GREAT DEAL DURING GENERAL DEBATE TODAY, FIRST ABOUT
THE HISTORIC BOUNDARIES AND SECOND ABOUT THE OUTER CONTINENTAL SHELF OF
THE STATES.  LET ME EXPLAIN WHAT THESE TERMS MEAN. 

"EACH STATE WAS ADMITTED INTO THE UNION BY AN ACT OF CONGRESS, AND
EACH STATE ADOPTED A CONSTITUTION WHICH WAS APPROVED BY THE CONGRESS. 
THE ACT OF CONGRESS AND THE FIRST CONSTITUTION DEFINED THE BOUNDARIES
OF EACH STATE IN THE FIRST INSTANCE.  IN SOME CASES TREATIES WERE
INVOLVED.  THUS THE LOUISIANA TERRITORY WAS RETROCEDED OR RECONVEYED BY
SPAIN TO FRANCE IN 1803, AND THEN FRANCE, IN TURN, TRANSFERRED THE
LOUISIANA TERRITORY TO THE UNITED STATES.  THEREAFTER, LOUISIANA WAS
ADMITTED INTO THE UNION AS A STATE UNDER AN ACT OF CONGRESS OF 1812,
AND THE FIRST CONSTITUTION OF LOUISIANA, OF 1812, WAS APPROVED BY THE
CONGRESS.  BOTH SPAIN AND FRANCE EXERTED INFLUENCE OVER AND CLAIMED,
OWNED, AND CONTROLLED A MARGINAL BELT AS PART OF THE LOUISIANA
TERRITORY, AS SHOWN BY MAPS THEN USED AND STILL IN EXISTENCE. 

"OBVIOUSLY, WE MUST RESORT TO ALL OF SUCH ANCIENT DOCUMENTS IN ORDER
TO DETERMINE THE TRUE AND ACTUAL HISTORIC BOUNDARIES OF EACH STATE, AND
AS A PRACTICAL MATTER, THAT IS EXACTLY WHAT THIS BILL PERMITS AND
ACCOMPLISHES.  I DO NOT KNOW OF ANY BETTER CRITERIA FOR THE
ESTABLISHMENT OF THE BOUNDARIES OF THE STATES THAN A HISTORIC
APPROACH."  99 CONG. REC. 2504. 

FN45  SEE 99 CONG. REC. 4174-4175 (REMARKS OF SENATOR DANIEL); NEW
MEXICO V. TEXAS, 275 U.S. 279, 276 U.S. 557, 558; NEW MEXICO V.
COLORADO, 267 U.S. 30. 

FN46  1953 SENATE HEARINGS, PT. II (EXEC. SESS.), 1317-1319; 99 CONG.
REC. 3551-3552, 4095. 

FN47  IT IS WORTH OBSERVING THAT AT ONE TIME THE CLAIMS PROTECTED
FROM PREJUDICE BY SEC. 4 INCLUDED NOT ONLY THOSE BASED ON STATE
CONSTITUTIONAL OR STATUTORY PROVISIONS, BUT ALSO THOSE BASED ON "ANY
TREATY RATIFIED BY THE SENATE OF THE UNITED STATES" OR ON "AN ACT OF
CONGRESS."  99 CONG. REC. 2567.  THIS PROVISION WAS INSERTED
SPECIFICALLY TO PRESERVE TEXAS' CLAIM BASED ON THE JOINT RESOLUTION OF
ANNEXATION (SEE P. 37, POST), WHICH WAS LOOSELY REFERRED TO AS A
"TREATY" BETWEEN TEXAS AND THE UNITED STATES.  ID., 2568.  SEE ALSO
1953 HOUSE HEARINGS 301-302. 

FN48  1949 SENATE HEARINGS 138-139; 1953 SENATE HEARINGS 957, 1076
1078; 99 CONG. REC. 2504, 2558-2559, 2746, 2754, 2755, 2933, 4095,
4096, 4116, 4171, 4175, 4477. 

FN49  E.G., 99 CONG. REC. 2916 (REMARKS OF SENATOR DOUGLAS). 

FN50  1948 JOINT HEARINGS 618 (ATTORNEY GENERAL CLARK); HEARINGS
BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE JUDICIARY COMMITTEE ON H.R. 5991
AND H.R. 5992, 81ST CONG., 1ST SESS. 196 SOLICITOR GENERAL PERLMAN);
1951 SENATE HEARINGS 40, 393 (SOLICITOR GENERAL PERLMAN); 97 CONG. REC.
9167 (LETTER FROM SOLICITOR GENERAL PERLMAN INTRODUCED BY
REPRESENTATIVE CELLER); 98 CONG. REC. 5247 (REPRESENTATIVES MANSFIELD
AND FEIGHAN); 1953 SENATE HEARINGS 27 (ASSISTANT SECRETARY OF STATE
MORTON); ID., 663 (SENATOR ANDERSON); ID., 678-679, 680-684 (FORMER
SOLICITOR GENERAL PERLMAN); ID., 1053-1086 (STATE DEPARTMENT DEPUTY
LEGAL ADVISER TATE); 99 CONG. REC. 2502-2503 (REPRESENTATIVE HAYS);
ID., 2568 (REPRESENTATIVE YATES); ID., 3034 (SENATOR ANDERSON). 

FN51  1953 SENATE HEARINGS 1051-1086. 

FN52  1953 SENATE HEARINGS 326; ID., PT. II (EXEC. SESS.), 1415. 

FN53  HEARINGS BEFORE THE HOUSE JUDICIARY COMMITTEE AND A SPECIAL
SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE ON H.J. RES. 118 AND
OTHER BILLS, 79TH CONG., 1ST SESS. 23; 91 CONG. REC.  8867; 1949 SENATE
HEARINGS 137-138; 1953 SENATE HEARINGS 670, 1076-1078, 1082-1084; 99
CONG.  REC. 4074-4075, 4172-4173.  EVEN SENATOR ANDERSON, WHO WAS
OPPOSED TO THE BILL, IN PROPOSING THAT THE GRANT SHOULD IN ANY EVENT BE
LIMITED TO THREE LEAGUES IN THE GULF OF MEXICO, CONCEIVED THAT DISTANCE
TO BE JUSTIFIED AS AN EXCEPTION TO THIS COUNTRY'S THREE-MILE POLICY,
BASED ON THE FACT THAT THE GULF IS VERY LARGELY ENCLOSED BY LAND.  1953
SENATE HEARINGS, PT. II (EXEC.  SESS.), 1349. 

FN54  1953 SENATE HEARINGS 319-323, 1056-1057, 1060-1063, 1076-1078,
1080-1082.  SEE ALSO 99 CONG. REC. 2513, 2569, 3041-3042. 

FN55  SIMILAR SUGGESTIONS SEEM TO HAVE BEEN MADE IN THE COURSE OF
CONSIDERATION OF THE VARIOUS "QUITCLAIM" BILLS, THOUGH NEVER FULLY
DEVELOPED.  SEE 92 CONG. REC. 9518 (REMARKS OF SENATOR CONNALLY); 1953
SENATE HEARINGS 316-317 (STATEMENT OF JOHN J. REAL); 99 CONG. REC. 3037
(REMARKS OF SENATORS GORE AND ANDERSON); ID., 3265 (REMARKS OF SENATORS
MORSE AND HILL); ID., 3270 (REMARKS OF SENATOR HILL).  SEE ALSO 1953
SENATE HEARINGS 1078 (REMARKS OF SENATOR DANIEL).  IN THIS COURT THE
GOVERNMENT HAS UNDERTAKEN TO SUPPORT ITS POSITION RESPECTING THIS
NATION'S ADHERENCE TO THE THREE-MILE LIMIT BY A LETTER FROM THE
SECRETARY OF STATE SUMMARIZING HISTORICAL EXECUTIVE POLICY IN THAT
REGARD.  IN OUR VIEW OF THE ISSUES IN THIS CASE WE DO NOT REACH THE
GOVERNMENT'S CONTENTION THAT THE SECRETARY'S LETTER WOULD BE CONCLUSIVE
UPON US AS TO THE EXISTENCE OF THAT POLICY. 

FN56  SEE MOUTON, THE CONTINENTAL SHELF 183-192 (1952 ED.). 

FN57  SEE 1951 SENATE HEARINGS 511. 

FN58  SEE UNITED STATES V. CALIFORNIA, SUPRA, AT 33. 

FN59  SEE 1953 SENATE HEARINGS 1074-1075. 

FN60  FOR EXAMPLE, THE UNITED STATES HAS LONG CLAIMED THE RIGHT TO
EXERCISE JURISDICTION OVER DOMESTIC AND FOREIGN VESSELS BEYOND THE
THREE-MILE LIMIT FOR PURPOSES OF CUSTOMS CONTROL, 1 STAT. 145, 164,
648, 668; ANTI-SMUGGLING ACT OF AUG. 5, 1935, 49 STAT. 517, 19 U.S.C.
SECS.  1701-1711, AND FOR DEFENSE PURPOSES, 62 STAT. 799, 18 U.S.C.
SEC. 2152, AND THIS PRACTICE IS RECOGNIZED BY INTERNATIONAL LAW.  SEE
1953 SENATE HEARINGS 1087-1088; AMERICAN LAW INSTITUTE, RESTATEMENT OF
THE FOREIGN RELATIONS LAW OF THE UNITED STATES (TENTATIVE DRAFT NO. 2,
MAY 8, 1958), SECS. 8(C), 21. 

FN61  THE BOUNDARIES OF TEXAS WERE DESCRIBED IN FULL BY THE ACT AS
FOLLOWS: 

"THAT FROM AND AFTER THE PASSAGE OF THIS ACT, THE CIVIL AND POLITICAL
JURISDICTION OF THIS REPUBLIC BE, AND IS HEREBY DECLARED TO EXTEND TO
THE FOLLOWING BOUNDARIES, TO WIT:  BEGINNING AT THE MOUTH OF THE SABINE
RIVER, AND RUNNING WEST ALONG THE GULF OF MEXICO THREE LEAGUES FROM
LAND, TO THE MOUTH OF THE RIO GRANDE, THENCE UP THE PRINCIPAL STREAM OF
SAID RIVER TO ITS SOURCE, THENCE DUE NORTH TO THE FORTY-SECOND DEGREE
OF NORTH LATITUDE, THENCE ALONG THE BOUNDARY LINE AS DEFINED IN THE
TREATY BETWEEN THE UNITED STATES AND SPAIN, TO THE BEGINNING:  AND THAT
THE PRESIDENT BE, AND IS HEREBY AUTHORIZED AND REQUIRED TO OPEN A
NEGOTIATION WITH THE GOVERNMENT OF THE UNITED STATES OF AMERICA, SO
SOON AS IN HIS OPINION THE PUBLIC INTEREST REQUIRES IT, TO ASCERTAIN
AND DEFINE THE BOUNDARY LINE AS AGREED UPON IN SAID TREATY." 

FN62  ON MARCH 1, THE SENATE RESOLVED THAT RECOGNITION OF TEXAS WOULD
BE EXPEDIENT AND PROPER, CONG. GLOBE, 24TH CONG., 2D SESS. 83, 270.  A
CHARGE D'AFFAIRES TO BE SENT THERE WAS APPOINTED BY THE PRESIDENT ON
MARCH 3, 4 S. EXEC. J. 631, AND CONFIRMED BY THE SENATE ON MARCH 7, 5
ID., 17. 

FN63  8 STAT. 511. 

FN64  S. DOC. NO. 341, 28TH CONG., 1ST SESS. 10; CONG. GLOBE, 28TH
CONG., 1ST SESS. 652. 

FN65  5 STAT. 797. 

FN66  9 STAT. 108. 

FN67  TEXAS CONST., 1845, ART. THIRTEENTH, SEC. 2, 2 GAMMEL, LAWS OF
TEXAS, AT 1299. 

FN68  8 STAT. 200. 

FN69  13 CONG. DEB., 24TH CONG., 2D SESS., PT. II, AT 229. 

FN70  SEE, E.G., CONG. GLOBE, 28TH CONG., 1ST SESS., APP. 540; ID.,
AT 697.  THE RIO GRANDE WAS ALSO SOMETIMES CALLED THE RIO BRAVO, RIO
BRAVO DEL NORTE, OR RIO DEL NORTE.  WE SHALL REFER TO IT THOUGHOUT AS
THE RIO GRANDE. 

FN71  8 STAT. 252. 

FN72  SEE CONG. GLOBE, 28TH CONG., 1ST SESS., APP. 486, 697. 

FN73  IN 1825 AND 1827, PRESIDENT ADAMS AND HIS SECRETARY OF STATE,
HENRY CLAY, MADE OVERTURES TO MEXICO FOR THE ACQUISITION OF TEXAS.  SEE
JUSTIN H. SMITH, THE ANNEXATION OF TEXAS, 8; CONG.  GLOBE, 28TH CONG.,
1ST SESS., APP. 698, 768.  AGAIN IN 1829 AND 1835, PRESIDENT JACKSON
MADE SIMILAR OVERTURES.  SMITH, OP. CIT., SUPRA, AT 9; CONG. GLOBE,
28TH CONG., 1ST SESS., APP. 698.  IT SEEMS THAT THE RIO GRANDE WAS NOT
ALWAYS SOUGHT AS THE BOUNDARY, BUT THAT ON AT LEAST ONE OCCASION,
JACKSON WAS WILLING TO STOP AT THE CENTER OF THE DESERT BETWEEN THE
NUECES AND THE RIO GRANDE. 

FN74  SEE 4 MILLER, TREATIES AND OTHER INTERNATIONAL ACTS OF THE
UNITED STATES OF AMERICA (1934), 139; JUSTIN H. SMITH, THE ANNEXATION
OF TEXAS 1, 7, 20; CONG. GLOBE, 28TH CONG., 1ST SESS., APP. 697; 1
GARRISON, DIPLOMATIC CORRESPONDENCE OF THE REPUBLIC OF TEXAS, 127, 132
133, H.R. DOC. NO. 1282, 60TH CONG., 2D SESS. 127, 132-133; LETTER FROM
MESSRS.  VAN ZANDT AND HENDERSON TO SECRETARY OF STATE CALHOUN, APR.
15, 1844, S. DOC. NO. 341, 28TH CONG., 1ST SESS. 13. 

FN75  S. DOC. NO. 341, 28TH CONG., 1ST SESS. 10. 

FN76  SPEECH OF SENATOR BENTON OF MISSOURI, CONG. GLOBE, 28TH CONG.,
1ST SESS., APP. 474; SPEECH OF SENATOR JARNAGIN OF TENNESSEE, ID., AT
685.  THE CONTESTED PORTIONS OF TEXAS' CLAIM WERE THE AREA BETWEEN THE
NUECES AND RIO GRANDE RIVERS ON THE SOUTHWEST, AND THE AREA BOUNDED BY
THE UPPER PORTION OF THE RIO GRANDE IN THE NORTHWEST, WHICH IS NOW PART
OF NEW MEXICO.  SEE DIAGRAM AT P. 65, POST. 

FN77  SPEECH OF SENATOR WALKER OF MISSISSIPPI, CONG. GLOBE, 28TH
CONG., 1ST SESS., APP. 548; SPEECH OF SENATOR MCDUFFIE OF SOUTH
CAROLINA, ID., AT 529; SPEECH OF SENATOR BREESE OF ILLINOIS, ID., AT
540; SPEECH OF SENATOR BUCHANAN OF PENNSYLVANIA, ID., AT 726; SPEECH OF
SENATOR WOODBURY OF NEW HAMPSHIRE, ID., AT 768. 

FN78  S. DOC. NO. 341, 28TH CONG., 1ST SESS. 53, 54. 

FN79  ID., AT 55-57. 

FN80  CONG. GLOBE, 28TH CONG., 1ST SESS., APP. 548. 

FN81  ID., AT 540. 

FN82  ID., AT 768, 726. 

FN83  OPPONENTS OF THE PROPOSALS OBJECTED THAT SINCE THE CONSENT OF A
FOREIGN NATION WAS REQUIRED, THE OBJECT COULD BE ACCOMPLISHED ONLY BY
AN EXERCISE OF THE TREATY-MAKING POWER, WHICH WOULD BRING TEXAS IN AS A
TERRITORY.  SEE, E.G., CONG. GLOBE, 28TH CONG., 2D SESS., APP.  367. 
SUPPORTERS OF THE RESOLUTIONS INSISTED THAT THE EXPRESS CONSTITUTIONAL
POWER OF CONGRESS TO ADMIT NEW STATES ON PRESCRIBED TERMS EXTENDED TO
THE ADMISSION OF FOREIGN STATES AS WELL AS OF TERRITORY ALREADY
BELONGING TO THE UNITED STATES.  SEE, E.G., ID., AT 406-407.  THE
MEASURE AS FINALLY PASSED REPRESENTED A COMPROMISE, THE SENATE HAVING
ADDED A SEC. 3, WHICH AUTHORIZED AN ALTERNATIVE PROCEDURE TO BE PURSUED
BY THE PRESIDENT, AT HIS ELECTION, UNDER THE TREATY-MAKING POWER.  SEE
CONG. GLOBE, 28TH CONG., 2D SESS. 359, 360, 362-363.  PRESIDENT POLK
ELECTED NOT TO USE THAT POWER.    FN84  SEE, E.G., SPEECH OF SENATOR
ASHLEY OF ARKANSAS, CONG. GLOBE, 28TH CONG., 2D SESS., APP. 288: 

"THE PRESENT BOUNDARIES OF TEXAS I LEARN FROM JUDGE ELLIS, THE
PRESIDENT OF THE CONVENTION THAT FORMED THE CONSTITUTION OF TEXAS, AND
ALSO A MEMBER OF THE FIRST LEGISLATURE UNDER THAT CONSTITUTION, WERE
FIXED AS THEY NOW ARE, SOLELY AND PROFESSEDLY WITH A VIEW OF HAVING A
LARGE MARGIN IN THE NEGOTIATION WITH MEXICO, AND NOT WITH THE
EXPECTATION OF RETAINING THEM AS THEY NOW EXIST IN THEIR STATUTE
BOOK." 

SEE ALSO SPEECH OF REPRESENTATIVE BRINKERHOFF OF OHIO, CONG. GLOBE,
28TH CONG., 2D SESS. 346-347.  SIGNIFICANTLY, THE HOUSE OF
REPRESENTATIVES ON JAN. 16, 1845, PASSED A RESOLUTION CALLING ON THE
PRESIDENT TO COMMUNICATE ANY INFORMATION HE MIGHT POSSESS ON THE
TERRITORY WITHIN WHICH THE AUTHORITY AND JURISDICTION OF THE REPUBLIC
OF TEXAS WAS RECOGNIZED BY ITS INHABITANTS.  ID., AT 147. 

FN85  SPEECH OF SENATOR MCDUFFIE OF SOUTH CAROLINA, CONG. GLOBE, 28TH
CONG., 1ST SESS., APP.  530:  "THE TREATY NEITHER DOES CONVEY, NOR IS
INTENDED TO CONVEY, ONE SOLITARY SQUARE FOOT OF LAND WHICH DOES NOT
RIGHTFULLY BELONG TO TEXAS."  SPEECH OF SENATOR WALKER OF MISSISSIPPI,
ID., AT 548:  "WHEN A NATION IS CEDED BY NAME, THAT CESSION EXTENDS
ONLY TO THE COUNTRY EMBRACED WITHIN ITS LAWFUL BOUNDARIES.  IF, THEN,
THE DEL NORTE  ...  BE THE PROPER BOUNDARY, THEN IT IS AND OUGHT TO BE
INCLUDED."  SEE ALSO SPEECH OF SENATOR BUCHANAN OF PENNSYLVANIA, ID.,
AT 726; SPEECH OF SENATOR BREESE OF ILLINOIS, ID., AT 540. 

FN86  REPRESENTATIVE RHETT OF SOUTH CAROLINA PROPOSED THAT "THE SENSE
OF THE  ...  HOUSE BE TAKEN ON THE FIRST NUMBER IN THE SERIES OF
RESOLUTIONS, WHICH SIMPLY DECLARED THAT TEXAS SHOULD BE ANNEXED TO THE
UNITED STATES."  HE DID NOT "FEEL VERY SCRUPULOUS AS TO THE PARTICULAR
MEANS, PROVIDED TEXAS WAS GOT; AND HAVE IT THEY WOULD."  CONG. GLOBE,
28TH CONG., 2D SESS., APP.  55.  SEE ALSO REMARKS OF REPRESENTATIVE
INGERSOLL, CHAIRMAN OF THE COMMITTEE ON FOREIGN AFFAIRS, WHICH HAD
REPORTED ON THE SUBJECT OF ANNEXATION, OBJECTING TO THIS PROCEDURE,
IBID., AND THOSE OF SENATOR DAYTON OF NEW JERSEY, ID., AT 387. 

FN87  THE BILLS INTRODUCED INCLUDED THE FOLLOWING VARIATIONS IN
TREATMENT OF THE BOUNDARY QUESTION: 

"THAT THE REPUBLIC OF TEXAS  ...  BE RECEIVED AND ADMITTED  ...  .
THAT THE UNITED STATES BE AUTHORIZED TO ADJUST AND SETTLE ALL QUESTIONS
OF BOUNDARY WHICH MAY ARISE WITH OTHER GOVERNMENTS."  (OFFERED BY
SENATOR ASHLEY OF ARKANSAS, CONG. GLOBE, 28TH CONG., 2D SESS., APP., AT
287-288.) 

"THE REPUBLIC OF TEXAS  ...  CEDES TO THE UNITED STATES ALL THE
TERRITORIES OF TEXAS  ...  ."  (REPORTED BY REPRESENTATIVE INGERSOLL AS
CHAIRMAN OF THE COMMITTEE ON FOREIGN AFFAIRS, CONG.  GLOBE, 28TH CONG.,
2D SESS., AT 191.) 

"THE TERRITORY NOW KNOWN AS THE REPUBLIC OF TEXAS BE, AND THE SAME IS
HEREBY, ANNEXED TO, AND MADE A PORTION OF, THE TERRITORY OF THE UNITED
STATES  ...  .  THAT COMMISSIONERS SHALL HEREAFTER BE APPOINTED, WHO
SHALL ESTABLISH THE BOUNDARIES  ...  ."  (OFFERED BY REPRESENTATIVE
WELLER OF OHIO, ID., AT 192.) 

"THAT THE CONGRESS DOTH CONSENT THAT THE TERRITORY RIGHTFULLY INCLUDED
WITHIN THE LIMITS OF TEXAS BE ERECTED INTO A NEW STATE  ...  .  THAT
SAID STATE BE FORMED SUBJECT TO THE ADJUSTMENT, BY THE GOVERNMENT OF
THE UNITED STATES, OF ALL QUESTIONS OF BOUNDARY THAT MAY ARISE WITH
OTHER GOVERNMENTS."  (OFFERED BY REPRESENTATIVE DOUGLASS OF ILLINOIS,
ID., AT 192.) 

"THAT THE CONGRESS DOTH CONSENT THAT THE TERRITORY KNOWN AS THE
REPUBLIC OF TEXAS, AND RIGHTFULLY BELONGING TO THE SAME, MAY BE ERECTED
INTO A NEW STATE  ...  .  THAT THE PRESIDENT OF THE UNITED STATES, BY
AND WITH THE ADVICE AND CONSENT OF THE SENATE, IS HEREBY AUTHORIZED TO
ADJUST AND SETTLE ALL QUESTIONS RELATING TO THE BOUNDARIES OF SAID
TERRITORY, WHICH MAY ARISE WITH OTHER GOVERNMENTS."   (OFFERED BY
REPRESENTATIVE BURKE OF NEW HAMPSHIRE, IBID.) 

THERE WERE ALSO SEVERAL PROPOSALS TO CARVE A STATE OUT OF ONLY PART
OF THE TEXAS TERRITORY, WITH ASSIGNED TERRITORIAL BOUNDARIES, AND TO
ADMIT THE REMAINDER AS A TERRITORY SUBJECT TO LATER ADJUSTMENT OF
BOUNDARIES.  CONG. GLOBE, 28TH CONG., 2D SESS. 76 (REPRESENTATIVE
TIBBATTS OF KENTUCKY); 107, 187, APP. 304 (REPRESENTATIVE DROMGOOLE OF
VIRGINIA); 192 (REPRESENTATIVE ROBINSON OF NEW YORK); 359 (SENATOR
WALKER OF MISSISSIPPI); 362 (SENATOR MILLER OF NEW JERSEY). 

FN88  SEE, E.G., CONG. GLOBE, 28TH CONG., 2D SESS., APP. 387, 400. 
THE MAINTAINABLE EXTENT OF TEXAS' TERRITORY WAS CRUCIAL FOR TWO
REASONS:  FIRST, BECAUSE IT HAD BEEN PROPOSED THAT THE UNITED STATES
ASSUME THE TEXAN DEBT AND THAT TEXAS CEDE ALL HER VACANT AND
UNAPPROPRIATED PUBLIC LANDS TO BE APPLIED IN DISCHARGE OF THE DEBT;
SECOND, BECAUSE IT HAD BEEN PROPOSED THAT SEVERAL STATES BE CARVED OUT
OF THE TEXAN TERRITORY, THOSE LYING SOUTH OF LATITIDUE 36 DEGREES 30
MINUTES - THE MISSOURI COMPROMISE LINE - TO BE SLAVE STATES, AND THOSE
TO THE NORTH TO BE FREE STATES.  IN THIS CONTEXT, IT WAS REPEATEDLY
ASSERTED BY OPPONENTS OF THE ANNEXATION RESOLUTIONS THAT BY THEIR
TERMS, THE UNITED STATES WOULD NOT GET NEARLY AS MUCH PUBLIC LAND AS
THE TEXAS BOUNDARY ACT WOULD INDICATE, NOR ANY LAND NORTH OF THE
MISSOURI COMPROMISE LINE, DESPITE THE ACT'S CLAIM OF A BOUNDARY
EXTENDING TO THE 42D PARALLEL.  SEE, E.G., CONG. GLOBE, 28TH CONG., 2D
SESS. 191 (REPRESENTATIVE MCILVAINE OF PENNSYLVANIA); ID., APP. 369-370
(REPRESENTATIVE SEVERANCE OF MAINE). 

FN89  REPRESENTATIVE HUDSON OF MASSACHUSETTS SAID: 

"WHAT IS THE TEXAS WHICH WE PROPOSE TO TAKE INTO OUR EMBRACE?  NOT
SIMPLY THE OLD PROVINCE OF TEXAS - NOT THE TEXAS WHICH DECLARED ITSELF
INDEPENDENT, AND WHOSE INDEPENDENCE WE AND SEVERAL OTHER NATIONS HAVE
RECOGNIZED - NOT TEXAS PROPER, BUT A LARGE AMOUNT OF TERRITORY WHICH IS
NOT INCLUDED IN TEXAS - TERRITORY OVER WHICH TEXAS NEVER EXTENDED HER
CONQUEST OR JURISDICTION, AND WHICH IS AS MUCH A PART OF MEXICO AS THE
CITY OF MEXICO ITSELF."  CONG. GLOBE, 28TH CONG., 2D SESS., APP. 336. 

SEE ALSO REMARKS OF REPRESENTATIVE RAYNER OF NORTH CAROLINA, ID., 411
412, SEE NOTE 98, INFRA; AND OF REPRESENTATIVE HARALSON OF GEORGIA. 
ID., APP. 195, SEE NOTE 97, INFRA. 

FN90 TREATY OF AMITY, SETTLEMENT, AND LIMITS, FEB. 22, 1819, 8 STAT.
252; TREATY OF LIMITS, JAN. 12, 1828, 8 STAT. 372. 

FN91  THIS COMPACT WAS ALLUDED TO DURING THE DEBATES ON THE
UNSUCCESSFUL 1844 TREATY AS HAVING PROBABLY PROVIDED THE ORIGIN OF THE
BOUNDARY CLAIMS MADE IN THE TEXAS 1836 BOUNDARY STATUTE.  SEE CONG.
GLOBE, 28TH CONG., 1ST SESS., APP. 700, 768. 

FN92  1 GARRISON, DIPLOMATIC CORRESPONDENCE OF THE REPUBLIC OF TEXAS,
127, 132, REPRINTED AS H.R. DOC. NO. 1282, 60TH CONG., 2D SESS. 127,
132. 

FN93  ON DEC. 22, 1836, PRESIDENT JACKSON SENT A MESSAGE TO THE HOUSE
REGARDING POSSIBLE RECOGNITION OF TEXAS.  ONE OF THE DOCUMENTS
ACCOMPANYING THE MESSAGE WAS A REPORT DATED AUG. 27, 1836, IN WHICH THE
TEXAN BOUNDARY WAS DESCRIBED AS: 

"EXTENDING FROM THE MOUTH OF THE RIO GRANDE ON THE EAST SIDE, UP TO
ITS HEAD WATERS; THENCE ON A LINE DUE NORTH UNTIL IT INTERSECTS THAT OF
THE UNITED STATES, AND WITH THAT LINE TO THE RED RIVER, OR THE NORTHERN
BOUNDARY OF THE UNITED STATES; THENCE TO THE SABINE, AND ALONG THAT
RIVER TO ITS MOUTH; AND FROM THAT POINT WESTWARDLY WITH THE GULF OF
MEXICO TO THE RIO GRANDE."  H.R. EXEC. DOC. NO. 35, 24TH CONG., 2D
SESS. 11. 

WHILE THIS REPORT WAS WRITTEN BEFORE THE TEXAS BOUNDARY STATUTE WAS
PASSED, IT AGAIN ILLUSTRATES THE LACK OF CONCERN OVER A SEAWARD
BOUNDARY. 

FN94  CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE
REPUBLIC OF TEXAS, FOR MARKING THE BOUNDARY BETWEEN THEM, APR. 25,
1838, 8 STAT. 511.  THE JOURNAL OF THE JOINT COMMISSION WHICH CONDUCTED
THE SURVEY STATED: 

"WE ESTABLISHED THE POINT OF BEGINNING OF THE BOUNDARY BETWEEN THE
UNITED STATES AND THE REPUBLIC OF TEXAS AT A MOUND ON THE WESTERN BANK
OF THE JUNCTION OF THE RIVER SABINE WITH THE SEA  ...  ."  S. DOC. NO.
199, 27TH CONG., 2D SESS. 59. 

FN95  S. DOC. NO. 341, 28TH CONG., 1ST SESS. 55, 56. 

FN96  SEE, E.G., SPEECH OF REPRESENTATIVE SEVERANCE OF MAINE, CONG.
GLOBE, 28TH CONG., 2D SESS., APP. 369-370; SPEECH OF REPRESENTATIVE
MCILVAIN OF PENNSYLVANIA, ID., AT 373. 

FN97  REPRESENTATIVE HARALSON OF GEORGIA, SPEAKING TO THE JOINT
RESOLUTION, SAID: 

"IF IT SHOULD TURN OUT THAT, BY RECEIVING THE ENTIRE LIMITS OF TEXAS,
AS DEFINED IN HER ACT, WE ACQUIRED MORE TERRITORY THAN WE COULD
RIGHTFULLY HOLD, HAVING A JUST REGARD TO THE RIGHTS OF OTHER NATIONS,
ALL THAT IS NECESSARY TO BE DONE IS TO SURRENDER THE OVERPLUS.  THE
TEXIAN ACT OF CONGRESS, APPROVED DECEMBER 19, 1836, I HAVE LITTLE
DOUBT, DEFINES CORRECTLY THE BOUNDARY OF THAT REPUBLIC.  IF NOT, ANY
IMAGINABLE DIFFICULTY MAY BE ADJUSTED IF YOU ADOPT ONE OF THESE
RESOLUTIONS, WHICH PROVIDES FOR THE CONSENT OF TEXAS TO OUR SETTLEMENT
OF THE BOUNDARIES."  CONG. GLOBE, 28TH CONG., 2D SESS., APP. 193, 195. 

FN98  REPRESENTATIVE RAYNER OF NORTH CAROLINA, SPEAKING TO THE JOINT
RESOLUTION, SAID: 

"TEXAS CLAIMS THE COUNTRY ON THE EAST OF THE DEL NORTE, FROM ITS
MOUTH TO ITS SOURCE.  SHE HAS LAID DOWN THIS AS HER BOUNDARY IN HER
CONSTITUTION.  SHE IS TO TRANSFER TO THIS GOVERNMENT, OR RETAIN TO
HERSELF, ALL THE UNAPPROPRIATED LANDS WITHIN THE LIMITS OF HER
REPUBLIC.  SHE HAS DEFINED THESE LIMITS; AND IT IS WITH TEXAS, CLAIMING
TERRITORY AS EXTENDING TO THE DEL NORTE IN ITS WHOLE LENGTH, THAT YOU
PROPOSE TO MAKE THE CONTRACT.  IT MAY BE SAID THAT THIS QUESTION OF
BOUNDARY MUST BE LEFT TO FUTURE NEGOTIATION WITH MEXICO.  BUT WILL NOT
THIS GOVERNMENT, IF TEXAS IS NOW ANNEXED, WITH HER DEFINITION OF
BOUNDARY, BE PRECLUDED FROM MAKING ANY CONCESSIONS TO MEXICO?  WILL NOT
ANY COMPROMISE AS TO BOUNDARY BE RESISTED BY TEXAS AS A BREACH OF FAITH
TOWARDS HER?  SHE MIGHT SAY THAT TEXAS HAD DEFINED HER OWN LIMITS; THAT
WITH TEXAS, AS THUS BOUNDED, WE HAD CONTRACTED FOR HER ADMISSION INTO
THE UNION; AND THAT THIS GOVERNMENT WAS BOUND BY EVERY CONSIDERATION OF
FAITH AND HONOR TO SEE THAT TEXAS SHOULD NOT BE AGAIN MUTILATED  ...
. 

"WHETHER THIS REASONING BE FOUNDED IN JUSTICE OR NOT, THERE IS SOME
PLAUSIBILITY IN IT  ...  ."  ID., AT 410, 411-412. 

SIMILARLY SENATOR BREESE OF ILLINOIS, SPEAKING TO THE 1844 TREATY,
HAD SAID: 

"THE LIMITS OF TEXAS ARE TO BE ADJUSTED HEREAFTER.  BUT WE HAVE
ACKNOWLEDGED THE LIMITS AS DEFINED IN THE ACT OF THE TEXIAN CONGRESS OF
1836, AND AS DELINEATED ON THE MAP ACCOMPANYING THE DOCUMENTS, AS
EXTENDING TO THE DEL NORTE.  AND WHY DO I SAY SO?  BECAUSE WE DID, IN
1837, WITH A FULL KNOWLEDGE OF THESE DECLARED BOUNDARIES, ACKNOWLEDGE
THE INDEPENDENCE OF TEXAS AS A STATE, WITH THAT ACT OF HER CONGRESS
THEN, AND AS NOW, IN FULL FORCE; AND WHICH ACKNOWLEDGMENT RECEIVED THE
VOTE OF THE SENATOR FROM MISSOURI.  BUT THIS IS A SMALL MATTER, AND CAN
BE READILY ADJUSTED WITH MEXICO, SHOULD WE ENCROACH UPON HER RIGHTS. 
WE GET A TITLE TO ALL TEXAS, RIGHTFULLY OURS IN VIRTUE OF HER
SOVEREIGNTY.  WE ASK NO MORE - NO LESS. 

"THE SENATOR SAYS THAT HE IS FOR RECOVERY OF THE PROVINCE OF TEXAS -
SPANISH TEXAS - THE TEXAS OF LA SALLE.  SO AM I, MR. PRESIDENT; AND FOR
AS MUCH MORE AS THE 'REPUBLIC' OF TEXAS CAN LAWFULLY CLAIM."  CONG.
GLOBE, 28TH CONG., 1ST SESS., APP. 537, 540. 

SENATOR WALKER OF MISSISSIPPI, COMMENTING ON THE 1844 TREATY, HAD
PLACED HIS APPROVAL OF THE BOUNDARY ACT ON BOTH GROUNDS.  ID., AT 548
557. 

FN99  LETTER FROM ANDREW J. DONELSON TO JAMES BUCHANAN, APR. 12,
1845, 12 MANNING, DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES:
INTER-AMERICAN AFFAIRS, 1831-1860 (1939), 400-401. 

FN100  THE TREATY PROVIDED AS FOLLOWS: 

"THE BOUNDARY LINE BETWEEN THE TWO REPUBLICS SHALL COMMENCE IN THE
GULF OF MEXICO, THREE LEAGUES FROM LAND, OPPOSITE THE MOUTH OF THE RIO
GRANDE, OTHERWISE CALLED RIO BRAVO DEL NORTE, OR OPPOSITE THE MOUTH OF
ITS DEEPEST BRANCH, IF IT SHOULD HAVE MORE THAN ONE BRANCH EMPTYING
DIRECTLY INTO THE SEA; FROM THENCE UP THE MIDDLE OF THAT RIVER,
FOLLOWING THE DEEPEST CHANNEL, WHERE IT HAS MORE THAN ONE, TO THE POINT
WHERE IT STRIKES THE SOUTHERN BOUNDARY OF NEW MEXICO; THENCE,
WESTWARDLY, ALONG THE WHOLE SOUTHERN BOUNDARY OF NEW MEXICO (WHICH RUNS
NORTH OF THE TOWN CALLED PASO) TO ITS WESTERN TERMINATION; THENCE,
NORTHWARD, ALONG THE WESTERN LINE OF NEW MEXICO, UNTIL IT INTERSECTS
THE FIRST BRANCH OF THE RIVER GILA; (OR IF IT SHOULD NOT INTERSECT ANY
BRANCH OF THAT RIVER, THEN TO THE POINT ON THE SAID LINE NEAREST TO
SUCH BRANCH, AND THENCE IN A DIRECT LINE TO THE SAME;) THENCE DOWN THE
MIDDLE OF THE SAID BRANCH AND OF THE SAID RIVER, UNTIL IT EMPTIES INTO
THE RIO COLORADO; THENCE ACROSS THE RIO COLORADO, FOLLOWING THE
DIVISION LINE BETWEEN UPPER AND LOWER CALIFORNIA, TO THE PACIFIC
OCEAN." 

BY THIS TREATY, THE UNITED STATES THUS NOT ONLY MAINTAINED THE TEXAN
CLAIM TO THE TERRITORY BETWEEN THE NUECES AND THE RIO GRANDE, BUT ALSO
ACQUIRED FROM MEXICO THE WHOLE OF NEW MEXICO, PART OF WHICH TEXAS HAD
CLAIMED BY ITS BOUNDARY STATUTE.  TO SETTLE THE CONFLICT THUS CREATED
BETWEEN THE UNITED STATES AND TEXAS TO THAT PORTION OF NEW MEXICO, THE
UNITED STATES IN 1850 PAID TEXAS $10,000,000 TO RELINQUISH ITS CLAIM TO
THE AREA, 9 STAT. 446, THEREBY CONSUMMATING THE FINAL STEP IN THE
ESTABLISHMENT OF TEXAS' DISPUTED LAND BOUNDARIES.  SEE DIAGRAM, P. 65,
POST. 

THE ACT PROVIDED AS FOLLOWS: 

"THE STATE OF TEXAS WILL AGREE THAT HER BOUNDARY ON THE NORTH SHALL
COMMENCE AT THE POINT AT WHICH THE MERIDIAN OF ONE HUNDRED DEGREES WEST
FROM GREENWICH IS INTERSECTED BY THE PARALLEL OF THIRTY-SIX DEGREES
THIRTY MINUTES NORTH LATITUDE, AND SHALL RUN FROM SAID POINT DUE WEST
TO THE MERIDIAN OF ONE HUNDRED AND THREE DEGREES WEST FROM GREENWICH;
THENCE HER BOUNDARY SHALL RUN DUE SOUTH TO THE THIRTY-SECOND DEGREE OF
NORTH LATITUDE; THENCE ON THE SAID PARALLEL OF THIRTY-TWO DEGREES OF
NORTH LATITUDE TO THE RIO BRAVO DEL NORTE, AND THENCE WITH THE CHANNEL
OF SAID RIVER TO THE GULF OF MEXICO."    IT IS SUGGESTED THAT THE
SEAWARD BOUNDARY OF TEXAS WAS THEREBY FIXED AT THE EDGE OF THE GULF. 
BUT TEXAS' WESTERN BOUNDARY SOUTH OF NEW MEXICO HAD ALREADY BEEN
DEFINITIVELY FIXED BY THE TREATY OF GUADALUPE HIDALGO.  POST, PP. 60
61.  SINCE THE TREATY HAD FULLY SUPPORTED TEXAS' CLAIM TO THAT AREA,
THERE WAS NOTHING TO COMPROMISE IN 1850.  BY CONTRAST, THE PORTION OF
THE 1848 BOUNDARY WHICH ENCOMPASSED NOT ONLY EASTERN NEW MEXICO, TO
WHICH TEXAS HAD A VERY DOUBTFUL CLAIM, BUT ALSO WESTERN NEW MEXICO AND
CALIFORNIA, WHICH IT HAD NEVER CLAIMED, OBVIOUSLY WAS NOT PRESSED
AGAINST MEXICO ON TEXAS' BEHALF AND WAS NOT INTENDED TO VALIDATE ITS
CLAIM TO EASTERN NEW MEXICO.  THUS THE 1850 COMPROMISE COULD BE
CONCERNED ONLY WITH THE LATTER AREA.  NOTHING IN UNITED STATES V.
TEXAS, 162 U.S. 1, MILITATES TO THE CONTRARY.  THE CONCLUDING PHRASE OF
THE ACT, DESCRIBING THE PORTION OF TEXAS' BOUNDARY SOUTH OF NEW MEXICO
WAS UNNECESSARY TO THE PURPOSES OF THE ACT AND COULD NOT, WITHOUT
TEXAS' CONSENT, AFFECT THE SEAWARD BOUNDARY PREVIOUSLY FIXED FOR IT. 

FN101  PAPERS OF NICHOLAS P. TRIST (LIBRARY OF CONGRESS 1917), VOL.
33, FOLIO 62071.  THE QUOTATION IS FROM LETTER OF SECRETARY OF STATE
BUCHANAN TO JOHN SLIDELL, NOV. 10, 1845.  S. EXEC. DOC. NO. 52, 30TH
CONG., 1ST SESS. 78. 

FN102  SEE ALSO 5 MILLER, OP. CIT., SUPRA, AT 315, N. 1.  WHILE THE
UNITED STATES DEMANDED AND OBTAINED AS A WAR INDEMNITY A LARGE AMOUNT
OF TERRITORY WEST OF TEXAS' CLAIMED BOUNDARIES EXTENDING TO THE PACIFIC
COAST, SEE NOTE 100, SUPRA, THAT FACT NEVER OBSCURED THIS COUNTRY'S
FIRM CONTENTION THAT AS TO TEXAS' SOUTHWESTERN BOUNDARY - LYING ALONG
THE RIO GRANDE FROM THE GULF TO WHAT IS NOW NEW MEXICO - THE TEXAN
CLAIM BASED ON ITS 1836 BOUNDARY ACT MUST BE MAINTAINED AGAINST
MEXICO. 

FN103  10 STAT. 1031.  IT IS NOTEWORTHY THAT THE BOUNDARY
COMMISSIONERS APPOINTED AT THAT TIME TO SURVEY THE THREE-LEAGUE
BOUNDARY REPORTED:  "LIEUT.  WILKINSON, IN COMMAND OF THE BRIG MORRIS,
REPAIRED AT THE APPOINTED TIME TO THE MOUTH OF THE RIVER AND MADE
SOUNDINGS  ...  TO TRACE THE BOUNDARY, AS THE TREATY REQUIRED, 'THREE
LEAGUES OUT TO SEA.'"  1 EMORY, REPORT ON THE UNITED STATES AND MEXICAN
BOUNDARY SURVEY (1857), 58.  THIS IS IN MARKED CONTRAST TO THE NOTES OF
THE SURVEYORS OF THE BOUNDARY BETWEEN TEXAS AND THE UNITED STATES
ESTABLISHED BY THE 1838 CONVENTION.  SEE NOTE 94, SUPRA. 

FN104  SEE THE FOLLOWING BOUNDARY CONVENTIONS BETWEEN THE UNITED
STATES AND MEXICO:  JULY 29, 1882, 22 STAT. 986; NOV. 12, 1884, 24
STAT. 1011; DEC. 5, 1885, 25 STAT. 1390; FEB. 18, 1889, 26 STAT. 1493;
MAR. 1, 1889, 26 STAT. 1512; AUG. 24, 1894, 28 STAT. 1213; OCT. 1,
1895, 29 STAT. 841; NOV. 6, 1896, 29 STAT. 857; OCT. 29, 1897, 30 STAT.
1625; DEC. 2, 1898, 30 STAT. 1744; NOV. 21, 1900, 31 STAT. 1936; MAR.
20, 1905, 35 STAT. 1863. 

FN105  LETTER OF SECRETARY OF STATE BUCHANAN TO MR. CRAMPTON, BRITISH
MINISTER, AUG. 19, 1848, MANNING, DIPLOMATIC CORRESPONDENCE OF THE
UNITED STATES, INTER-AMERICAN AFFAIRS, 1831-1860, VII, 31-32; LETTER
FROM LUIS G. CUEVAS, MEXICAN FOREIGN MINISTER, TO PERCY W. DOYLE,
BRITISH CHARGE D'AFFAIRES IN MEXICO, PHOTOSTATIC COPY OF TRANSLATION IN
PUBLIC RECORD OFFICE, LONDON, GOV. BR. P. 403. 

FN106  FOREIGN RELATIONS OF THE UNITED STATES, 1875, PT. I, 649-650. 
IT IS DIFFICULT TO UNDERSTAND WHY, IF JURISDICTION FOR REVENUE PURPOSES
HAD BEEN EXTENDED BY STATUTE TO FOUR LEAGUES, THE BOUNDARY WAS
ESTABLISHED ONLY AT THREE LEAUGES IF IT WAS DRAWN SOLELY FOR THAT
PURPOSE.  IT IS ASSERTED, HOWEVER, THAT MEXICO CONCLUDED A SERIES OF
TREATIES WITH OTHER COUNTRIES IN THE LATTER HALF OF THE NINETEENTH
CENTURY WHICH ESTABLISHED JURISDICTION FOR REVENUE PURPOSES AT THREE
LEAGUES.   TREATY BETWEEN MEXICO AND CHINA, ART. XI, 1 LAWS AND
REGULATIONS ON THE REGIME OF THE HIGH SEAS (UNITED NATIONS LEGISLATIVE
SERIES) 147; TREATY BETWEEN MEXICO AND THE DOMINICAN REPUBLIC, ART. 15,
ID., AT 153, 154; TREATY BETWEEN MEXICO AND EL SALVADOR, ART. XXI, ID.,
AT 156; TREATY BETWEEN MEXICO AND FRANCE, ART. 15, ID., AT 169, 170;
TREATY BETWEEN MEXICO AND GERMANY, ART. VIII, ID., AT 170; TREATY
BETWEEN MEXICO AND THE NETHERLANDS, ART. 6, ID., AT 171; TREATY BETWEEN
MEXICO AND NORWAY AND SWEDEN, ART. VII, ID., AT 171-172; TREATY BETWEEN
MEXICO AND THE UNITED KINGDOM, ART. IV, ID., AT 172.  ONLY SOME OF
THOSE TREATIES SET THE LIMIT AT THREE LEAGUES; OTHERS SET IT AT TWENTY
KILOMETERS, WHICH IS EQUIVALENT TO APPROXIMATELY 10.8 NAUTICAL MILES,
OR CLOSER TO FOUR LEAGUES THAN TO THREE.  IN ANY EVENT, THE MEXICAN
TREATIES INDICATE ONLY THAT MEXICO CHOSE TO LIMIT THE RIGHTS SHE WOULD
ASSERT AS AGAINST OTHER NATIONS, AND DO NOT RELATE TO THE RIGHTS
CREATED BETWEEN IT AND THE UNITED STATES BY THE TREATY OF GUADALUPE
HIDALGO. 

FN107  LETTER FROM MR. DE L. BOAL, AMERICAN CHARGE D'AFFAIRES AD
INTERIM AT MEXICO CITY, TO SENOR GENERAL HAY, MEXICAN MINISTER FOR
FOREIGN AFFAIRS, JUNE 3, 1936, 99 CONG. REC. 3623-3624. 

IN TESTIFYING BEFORE CONGRESS ON THE SUBMERGED LANDS ACT,
REPRESENTATIVES OF THE STATE DEPARTMENT REITERATED THESE VARIOUS
GROUNDS, 1953 SENATE HEARINGS 1056-1057, 1077-1078.  SEE ALSO ID., AT
321-323, 670; 99 CONG. REC. 2513-2514, 2569, 2893-2895, 3041-3042. 
THEIR CONCERN WAS TO AVERT A CONGRESSIONAL DETERMINATION THAT A THREE
LEAGUE TERRITORIAL BOUNDARY HAD BEEN FIXED FOR TEXAS WHICH MIGHT BE
EMBARRASSING TO THIS COUNTRY IN ITS FOREIGN RELATIONS.  HOWEVER, AS WE
HAVE POINTED OUT, PP. 30-36, ANTE, THERE IS NO NECESSARY CONFLICT
BETWEEN THE EXISTENCE OF A THREE-LEAGUE TERRITORIAL BOUNDARY FOR
DOMESTIC PURPOSES AND THE MAINTENANCE OF THE EXECUTIVE'S POLICY ON THE
LIMIT TO WHICH THIS COUNTRY WILL ASSERT RIGHTS IN THE MARGINAL SEAS AS
AGAINST OTHER NATIONS.  DESPITE THE STATE DEPARTMENT'S CONTENTIONS WITH
RESPECT TO THE TREATY, CONGRESS CLEARLY LEFT THAT QUESTION, LIKE ALL
OTHER MATTERS BEARING ON THE DETERMINATION OF BOUNDARIES, AN OPEN
QUESTION TO BE JUDICIALLY RESOLVED. 

FN107A  2 STAT. 701, 702.  THE TERMS OF THIS ACT WERE PRACTICALLY
IDENTICAL WITH THOSE OF THE LOUISIANA ENABLING ACT, PASSED THE YEAR
BEFORE.  2 STAT. 641. 

FN108  IN PRECISE MODERN USAGE, THE TERM "SHORE" DENOTES THE LINE OF
LOW-WATER MARK ALONG THE MAINLAND, WHILE THE TERM "COAST" DENOTES THE
LINE OF THE SHORE PLUS THE LINE WHERE INLAND WATERS MEET THE OPEN SEA. 
IT IS OBVIOUS THAT THE TERM "COAST" WAS USED IN LOUISIANA'S ACT OF
ADMISSION IN A NONTECHNICAL SENSE TO DENOTE WHAT IS ACTUALLY THE
SHORE.  THE ACTS ADMITTING BOTH MISSISSIPPI AND ALABAMA CONTAIN SIMILAR
PROVISIONS FOR THE INCLUSION OF ALL ISLANDS WITHIN SIX LEAGUES OF THE
SHORE, DESPITE THE FACT THAT GREAT BRITAIN HAD PROCLAIMED THOSE AREAS
IN 1763 TO INCLUDE ALL ISLANDS WITHIN SIX LEAGUES OF THE "SEA COAST." 
AND, IN LOUISIANA V. MISSISSIPPI, 202 U.S. 1, 47, THIS COURT HELD THAT
THE "COAST" REFERRED TO IN LOUISIANA'S ACT OF ADMISSION WAS THE ST.
BERNARD MARSHES ON THE MAINLAND AND NOT THE CHANDELEUR ISLANDS, WHICH
MIGHT BE THOUGHT TO BE THE SEAWARD LIMIT OF INLAND WATERS. 

THE GOVERNMENT CONCEDES THAT ALL THE ISLANDS WHICH ARE WITHIN THREE
LEAGUES OF LOUISIANA'S SHORE AND THEREFORE BELONG TO IT UNDER THE TERMS
OF ITS ACT OF ADMISSION, HAPPEN TO BE SO SITUATED THAT THE WATERS
BETWEEN THEM AND THE MAINLAND ARE SUFFICIENTLY ENCLOSED TO CONSTITUTE
INLAND WATERS.  THUS, LOUISIANA IS ENTITLED TO THE LANDS BENEATH THOSE
WATERS QUITE APART FROM THE AFFIRMATIVE GRANT OF THE SUBMERGED LANDS
ACT, UNDER THE RULE OF POLLARD'S LESSEE V. HAGAN, 3 HOW.  212. 
FURTHERMORE, SINCE THE ISLANDS ENCLOSE INLAND WATERS, A LINE DRAWN
AROUND THOSE ISLANDS AND THE INTERVENING WATERS WOULD CONSTITUTE THE
"COAST" OF LOUISIANA WITHIN THE DEFINITION OF THE SUBMERGED LANDS ACT. 
SINCE THAT ACT CONFIRMS TO ALL STATES RIGHTS IN SUBMERGED LANDS THREE
MILES 'FROM THEIR COASTS, THE GOVERNMENT CONCEDES THAT LOUISIANA WOULD
BE ENTITLED NOT ONLY TO THE INLAND WATERS ENCLOSED BY THE ISLANDS, BUT
TO AN ADDITIONAL THREE MILES BEYOND THOSE ISLANDS AS WELL.  WE DO NOT
INTEND, HOWEVER, IN PASSING ON THESE MOTIONS, TO SETTLE THE LOCATION OF
THE COASTLINE OF LOUISIANA OR THAT OF ANY OTHER STATE. 

FN109  8 STAT. 80, 82. 

FN110  CIRCULAR SENT BY JEFFERSON TO UNITED STATES ATTORNEYS, MS. IN
NATIONAL ARCHIVES, RECORD GROUP 59. 

FN111  IBID.; SEE ALSO LETTER FROM JEFFERSON TO GEORGE HAMMOND,
BRITISH MINISTER, NOV. 8, 1793, H. EXEC. DOC. NO. 324, 42D CONG., 2D
SESS. 553; LETTER FROM JEFFERSON TO EDMOND GENET, FRENCH MINISTER,
AMERICAN STATE PAPERS, 1 FOREIGN RELATIONS 183. 

FN112  WHILE, AS WE HAVE OBSERVED, CONGRESS MAY FIX STATE BOUNDARIES
INDEPENDENTLY OF EXECUTIVE POLICY ON THE EXTENT OF TERRITORIAL WATERS,
SUBJECT TO ANY LIMITATIONS IMPOSED BY THAT POLICY, THE TREATY OF PARIS
DOES NOT PRESENT SUCH A SITUATION.  IT REPRESENTS AN EXERCISE OF PURELY
EXECUTIVE POWER (PRIOR, IN FACT, TO THE ESTABLISHMENT OF THE FEDERAL
CONSTITUTION) IN SETTING A NATIONAL BOUNDARY WITH ANOTHER NATION. 

FN113  GA. CODE ANN. SEC. 15-101, DERIVED FROM ACT 1788, COBB, 150;
WATKINS' DIG.  713-762, AS AMENDED, ACTS 1916, P. 29. 

FN114  "  ...  JUSQU'A SON EMBOUCHURE DANS LA MER OU GOLFE DE
MEXIQUE, ENVIRON LES 27 DEGREZ D'ELEVATION DU POLE SEPTENTRIONAL  ...
."  2 MARGRY, DECOUVERTES ET ETABLISSEMENTS DES FRANCAIS DANS L'QUEST
ET DANS LE SUD DE L'AMERIQUE SEPTENTRIONALE (1877), 191-192. 

FN115  2 MARGRY, OP. CIT., SUPRA, AT 186, 190-191. 

FN116  FRAGMENT OF A LETTER OF LA SALLE, 2 MARGRY, OP CIT., SUPRA, AT
199 (THE MISSISSIPPI RUNS AS FAR AS THE 27TH DEGREE, WHERE IT
DISCHARGES INTO THE SEA); LETTERS PATENT ISSUED ON SEPT. 14, 1712, BY
LOUIS XIV TO HIS SECRETARY, ANTOINE CROZAT, FOR EXCLUSIVE TRADING IN
LOUISIANA, IN GREENHOW, MEMOIR, HISTORICAL AND POLITICAL, ON THE
NORTHWEST COAST OF NORTH AMERICA, S. DOC.  NO. 174, 26TH CONG., 1ST
SESS. 150 (LOUISIANA EXTENDS ALONG THE MISSISSIPPI "FROM THE SEACOAST
TO THE ILLINOIS COUNTRY"); DEFINITIVE TREATY OF PEACE BETWEEN GREAT
BRITAIN, SPAIN, AND FRANCE, SIGNED AT PARIS, FEB. 10, 1763, ART. VII,
15 PARLIAMENTARY HISTORY OF ENGLAND 1291, 1296 (DOMAINS OF BRITAIN AND
FRANCE, SEPARATED BY A LINE DRAWN ALONG THE MIDDLE OF THE RIVER
IBERVILLE, AND LAKES MAUREPAS AND PONTCHARTRAIN "TO THE SEA"). 

FN117  13 CONG. DEB., 24TH CONG., 2D SESS., PT. II, APP. 226. 

FN118  ID., AT 229. 

FN119  TREATY OF UTRECHT, 1713 BETWEEN GREAT BRITAIN AND FRANCE, 17
JOURNAL OF THE HOUSE OF COMMONS 329; PRELIMINARY TREATY OF PEACE
BETWEEN GREAT BRITAIN, SPAIN, AND FRANCE, NOV. 3, 1762, 15
PARLIAMENTARY HISTORY OF ENGLAND 1241, 1243; DEFINITIVE TREATY OF PEACE
BETWEEN GREAT BRITAIN, SPAIN, AND FRANCE, FEB. 10, 1763, 15
PARLIAMENTARY HISTORY OF ENGLAND 1291, 1295; DEFINITIVE TREATY OF PEACE
AND FRIENDSHIP BETWEEN BRITAIN AND FRANCE, AT VERSAILLES, SEPT. 3,
1783, 39 JOURNAL OF THE HOUSE OF COMMONS 718, 719. 

FN120  CONVENTION BETWEEN GREAT BRITAIN AND SPAIN, AT THE ESCURIAL,
OCT. 28, 1790, 46 JOURNAL OF THE HOUSE OF COMMONS 30. 

FN121  ESTEVAN DE FERRATER, CODIGO DE DERECHO INTERNACIONAL
(BARCELONA 1846), VOL. I, P. 488. 

FN122  ERNEST NYS, LE DROIT INTERNATIONAL, VOL. I, P. 499. 

FN123  CERTAIN CORRESPONDENCE BETWEEN THE UNITED STATES AND SPAIN
INVOLVING A DISPUTE OVER THE EASTERN AND WESTERN LIMITS OF LOUISIANA
ALSO INDICATES THAT SPAIN BELIEVED THE TERRITORY ENDED AT THE GULF OF
MEXICO.  LETTER FROM PEDRO CEVALLOS, SPANISH FOREIGN MINISTER, TO
CHARLES PINCKNEY AND JAMES MONROE, UNITED STATES ENVOYS, APR. 13, 1805,
AMERICAN STATE PAPERS, 2 FOREIGN RELATIONS 660, 662; LETTER FROM LUIS
DE ONIS, SPANISH AMBASSADOR, TO JOHN QUINCY ADAMS, UNITED STATES
SECRETARY OF STATE, DEC. 29, 1817, AMERICAN STATE PAPERS, 4 FOREIGN
RELATIONS 452, 453; LETTER FROM DE ONIS TO ADAMS, MAR. 23, 1818, ID.,
AT 480, 484. 

FN124  8 STAT. 200, 202. 

FN125  TREATY OF AMITY, SETTLEMENT, AND LIMITS (BETWEEN THE UNITED
STATES AND SPAIN), FEB. 22, 1819, 8 STAT. 252; TREATY OF LIMITS
(BETWEEN THE UNITED STATES AND MEXICO), JAN. 12, 1828, 8 STAT. 372;
CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF
TEXAS, FOR MARKING THE BOUNDARY BETWEEN THEM, APR. 25, 1838, 8 STAT.
511. 

FN126  SEE NOTE 94, SUPRA. 

FN127  AMONG THE ACTS ALLEGED WERE "THE PASSING AND ENFORCING OF LAWS
REGULATING FISHING, TRAWLING AND DREDGING OF SAID SUBMERGED LANDS, THE
GRANTING OF LEASES FOR THE CULTIVATION, PROPAGATION AND TAKING OF
OYSTERS, FISH AND SHRIMP, FOR THE DREDGING AND REMOVAL OF SAND, GRAVEL
AND SHELLS, AND FOR THE LEASING AND DEVELOPMENT OF SAID LANDS FOR OIL,
GAS AND OTHER MINERALS."  THE ANSWER FURTHER ALLEGED THAT PRIOR TO THE
DISCOVERY OF OIL AND GAS UNDER SAID LANDS, THE UNITED STATES HAD NEVER
CLAIMED ANY INTEREST IN THEM, AND THAT IT HAD RECOGNIZED LOUISIANA'S
TITLE THERETO WHEN, ON NUMEROUS OCCASIONS, IT "REQUESTED THE CHIEF
EXECUTIVE OF THE STATE TO SECURE THE PASSAGE OF LAWS WHICH WOULD PERMIT
THE FEDERAL GOVERNMENT TO ACQUIRE SITES THEREIN FOR GAME AND FISH
PRESERVES AND FOR LIGHT HOUSES, JETTIES AND OTHER AIDS TO NAVIGATION." 

FN128  15 PARLIAMENTARY HISTORY OF ENGLAND 1291, 1296. 

FN129  2 WHITE, NEW COLLECTION OF LAWS, CHARTERS AND LOCAL ORDINANCES
OF GREAT BRITAIN, FRANCE AND SPAIN (1839), 292, 293. 

FN130  39 JOURNAL OF THE HOUSE OF COMMONS 722, 723. 

FN131  1 RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 465. 

FN132  2 STAT. 734. 

FN133  3 STAT. 348. 

FN134 3 STAT. 472. 

FN135  WE EXPRESS NO OPINION AT THIS TIME ON THE LOCATION OF
MISSISSIPPI'S COASTLINE.  SEE NOTE 108, ANTE. 

FN136  2 STAT. 734. 

FN137  3 STAT. 608. 

FN138  3 STAT. 489, 490. 

FN139  WE EXPRESS NO OPINION AT THIS TIME ON THE LOCATION OF
ALABAMA'S COASTLINE.  SEE NOTE 108, ANTE.    FN140  ON JUNE 5, 1950,
THE DATE OF THIS COURT'S DECISION IN THE LOUISIANA AND TEXAS CASES, ALL
COASTAL STATES WERE PUT ON NOTICE THAT THE UNITED STATES WAS POSSESSED
OF PARAMOUNT RIGHTS IN SUBMERGED LANDS LYING SEAWARD OF THEIR
RESPECTIVE COASTS.  THE SUBMERGED LANDS ACT, PASSED IN 1953, BY WHICH
PARTS OF THOSE LANDS WERE RELINQUISHED TO THE STATES, ALSO FORGAVE ANY
MONETARY CLAIMS ARISING OUT OF THE STATES' PRIOR USE OF THE LANDS SO
RELINQUISHED.  BUT THE UNITED STATES REMAINS ENTITLED TO AN ACCOUNTING
FOR ALL SUMS DERIVED SINCE JUNE 5, 1950, FROM LANDS NOT SO
RELINQUISHED. 

MISSISSIPPI CONTENDS THAT IT IS NOT LIABLE FOR AN ACCOUNTING, SINCE
IT WAS NEVER PARTY TO A SUIT DECREEING THE UNITED STATES' RIGHTS IN
OFFSHORE LANDS.  HOWEVER, PRINCIPLES ANNOUNCED IN THE 1950 LOUISIANA
AND TEXAS CASES ARE PLAINLY APPLICABLE TO ALL COASTAL STATES, AND
MISSISSIPPI WAS PUT ON NOTICE BY THE DECREES IN THOSE CASES.  A
FORTIORI, THE SIMILAR CONTENTION OF LOUISIANA, THE DEFENDANT IN THE
1950 LOUISIANA CASE, MUST BE OVERRULED. 

FN141  IN LIGHT OF THESE CONCLUSIONS WE DO NOT REACH THE QUESTION
WHETHER ALABAMA'S CROSS BILL CONSTITUTES AN "UNCONSENTED" SUIT AGAINST
THE UNITED STATES. 

FN142  THE SAME DISPOSITION IS MADE OF THE SIMILAR AVERMENT IN
ALABAMA'S ANSWER.  TEXAS' MOTION FOR SIMILAR RELIEF AND FOR A SEVERANCE
IS RENDERED MOOT BY OUR DECISION AS TO IT. 

FN143  THE ALTERNATIVE MOTION OF LOUISIANA, CONTAINED IN ITS ANSWER
TO THE ORIGINAL COMPLAINT HEREIN, TO TRANSFER THE CASE AS TO IT TO THE
UNITED STATES DISTRICT COURT IN LOUISIANA IS DENIED FOR THE SAME
REASONS, AND ON THE FURTHER GROUND THAT WE HAVE ALREADY DETERMINED THAT
THE ISSUES AS TO ALL THE DEFENDANT STATES SHOULD BE HEARD TOGETHER IN
THIS COURT.  354 U.S. 515. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE
BRENNAN, MR. JUSTICE WHITTAKER AND MR. JUSTICE STEWART, SEE POST, P.
129. 

MR. JUSTICE BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN THE COURT'S JUDGMENT THAT TEXAS OWNS THE BELT OF
SUBMERGED LANDS EXTENDING THREE MARINE LEAGUES FROM THAT STATE'S
COASTLINE INTO THE GULF OF MEXICO (INCLUDING OIL AND OTHER RESOURCES),
BUT DISSENT FROM DENIAL OF LIKE CLAIMS BY LOUISIANA, MISSISSIPPI AND
ALABAMA. 

THE CLAIMS OF ALL THESE STATES DEPEND ON OUR INTERPRETATION AND
APPLICATION OF THE SUBMERGED LANDS ACT PASSED IN 1953.  (FN1)  TWO
BILLS PREVIOUSLY PASSED BY CONGRESS, SUBSTANTIALLY THE SAME AS THE 1953
ACT, WERE VETOED BY THE PRESIDENT.  (FN2)  AFTER THE FIRST VETO WE
REFUSED TO HOLD THAT CALIFORNIA, TEXAS AND LOUISIANA OWNED OR HAD EVER
OWNED LEGAL TITLE TO THE SUBMERGED LANDS ADJACENT TO THEIR COASTS.  WE
HELD THAT THE UNITED STATES, NOT THE STATES, HAD PARAMOUNT RIGHTS IN
AND POWER OVER SUCH LANDS AND THEIR PRODUCTS, INCLUDING OIL.  (FN3)
CONGRESS ACCEPTED OUR HOLDINGS AS DECLARING THE THEN-EXISTING LAW -
THAT THESE STATES HAD NEVER OWNED THE OFFSHORE LANDS - BUT BELIEVED
THAT ALL COASTAL STATES WERE EQUITABLY ENTITLED TO KEEP ALL THE
SUBMERGED LANDS THEY HAD LONG TREATED AS THEIR OWN, (FN4) WITHOUT
REGARD TO TECHNICAL LEGAL OWNERSHIP OR BOUNDARIES.  ACCORDINGLY,
CONGRESS EXERCISED ITS POWER BY PASSING THE SUBMERGED LANDS ACT IN AN
ATTEMPT TO RESTORE THE "RIGHTS AND POWERS OF THE STATES AND THOSE
HOLDING UNDER THEM  ...  AS THEY EXISTED PRIOR TO THE DECISION OF THE
SUPREME COURT OF THE UNITED STATES IN THE CALIFORNIA CASE."  (FN5) 

TO ACCOMPLISH THIS PURPOSE THE ACT FIRST PROVIDES FOR AN OUTRIGHT
GRANT TO ALL THE COASTAL STATES OF A BOUNDARY THREE GEOGRAPHICAL MILES
FROM THEIR COASTLINES.  (FN6)  THE GULF STATES, HOWEVER, WERE NOT
SATISFIED WITH THREE MILES BUT CLAIMED THAT SPECIAL CIRCUMSTANCES
ENTITLED THEM TO THREE LEAGUES (ABOUT 10-1/2 MILES) OR MORE.  THEY
URGED, AMONG OTHER THINGS, THAT CLAIMS OF THE GULF STATES AND THEIR
PREDECESSORS IN TITLE HAD ALWAYS BEEN MORE EXPANSIVE THAN CLAIMS OF
COASTAL STATES IN OTHER PARTS OF THE COUNTRY; THAT WHEN ADMITTED TO THE
UNION THEIR CONSTITUTIONS CONTAINED DEFINITIONS WHICH, PROPERLY
INTERPRETED, DESCRIBED BOUNDARIES EXTENDING THREE TO SIX LEAGUES
SEAWARD; THAT THE GULF STATES HAD NOT ONLY CLAIMED THESE MORE EXPANSIVE
BOUNDARIES, BUT HAD ALWAYS EXERCISED POSSESSORY AND OWNERSHIP RIGHTS
OVER THESE MARGINAL LANDS AND THEIR PRODUCTS AT WILL WITHOUT REGARD TO
ANY THREE-MILE LIMITATIONS; AND THAT HISTORICALLY THE UNITED STATES HAD
NEVER QUESTIONED ANY OF THEIR CLAIMS UNTIL DISPUTES AROSE REGARDING OIL
LEASES DURING THE LATE 1930'S.  (FN7)  MOVED BY THESE ARGUMENTS,
STRONGLY SUPPORTED BY EVIDENCE AND CONCESSIONS, CONGRESS DID NOT LIMIT
ITS GRANT TO THE GULF STATES TO THREE MILES OF SUBMERGED LANDS, BUT
GRANTED A BELT EXTENDING ALL THE WAY TO EACH STATE'S "BOUNDARIES  ...
AS THEY EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE UNION
... BUT IN NO EVENT  ...  MORE THAN ...  THREE MARINE LEAGUES INTO THE
GULF OF MEXICO  ...  ."  43 U.S.C. SEC. 1301(B).  WE HAVE UPHELD THE
POWER OF CONGRESS TO CONVEY THESE MARGINAL LANDS TO THE STATES. 
ALABAMA V. TEXAS, 347 U.S. 272. 

THE STATUTE NEITHER DEFINES THE KIND OF "BOUNDARY" WHICH IS TO
MEASURE CONGRESS' GRANTS TO THESE STATES, NOR PARTICULARIZES THE
CRITERIA FOR DECIDING IT.  WE MAY AGREE WITH THE GOVERNMENT THAT THE
TERM "BOUNDARY" WAS USED HERE IN ITS USUAL SENSE TO MEAN THE LIMIT OF
TERRITORY, WHICH, IN THE CASE OF A COASTAL BOUNDARY, WOULD MEAN THE
OUTER LIMIT OF THE TERRITORIAL SEA.  BUT THIS DOES NOT GET US VERY FAR
IN DETERMINING THE LOCATION OF THESE STATES' BOUNDARIES.  FOR A NUMBER
OF REASONS I CANNOT ACCEPT THE GOVERNMENT'S CONTENTION THAT EACH STATE
MUST SHOW A "LEGAL" OR "LEGALLY ACCEPTED" BOUNDARY AS OF THE DATE IT
BECAME A MEMBER OF THE UNION.  I CANNOT SEE HOW WE CAN BE EXPECTED
RETROACTIVELY TO RECONSTRUCT A TECHNICALLY DEFINED LEGAL BOUNDARY,
EXTENDING OUT INTO THE LANDS UNDER THE GULF, IF THE STATES NEVER
TECHNICALLY OWNED ANY OF THESE LANDS.  IN UNITED STATES V. CALIFORNIA,
332 U.S. 19, AND THE CASES WHICH FOLLOWED IT, THIS COURT HELD THAT THE
STATES OF CALIFORNIA, TEXAS AND LOUISIANA DID NOT OWN OR HAVE TITLE TO
THE OFFSHORE LANDS THEY CLAIMED.  IF WE WERE NOW TO HOLD THAT THESE
STATES MUST PROVE TECHNICAL TITLE AS OF THE EARLY 1800'S IN ORDER TO
SATISFY THE SUBMERGED LANDS ACT AND THAT THEY HAVE SUCCEEDED IN DOING
SO, WE WOULD IN EFFECT BE OVERRULING OUR PRIOR CASES, CASES EXPRESSLY
ACCEPTED BY CONGRESS AS DECLARING THE LAW WHEN THE 1953 ACT WAS
PASSED.  I CANNOT BELIEVE THAT CONGRESS INTENDED US TO TRY TO USE AGAIN
THE SAME "LEGAL" TEST OF OWNERSHIP WE HAD APPLIED IN HOLDING THAT THE
STATES DID NOT OWN ANY PART OF THEIR MARGINAL LANDS, PARTICULARLY SINCE
CONGRESS PASSED THE 1953 ACT TO ALLOW THE STATES' RIGHTS TO BE
DETERMINED UNDER ESTABLISHED EQUITABLE, NOT STRICTLY LEGAL,
PRINCIPLES.  THE OPINION OF MR. JUSTICE DOUGLAS FORCEFULLY POINTS OUT
THE DIFFICULTY, IF NOT THE IMPOSSIBILITY, OF FINDING THAT ANY OF THESE
STATES EVER HAD A TECHNICAL LEGAL BOUNDARY OUT IN THE OCEAN.  EVEN IF A
TECHNICAL DETERMINATION OF BOUNDARIES WERE INTENDED BY CONGRESS, RATHER
THAN ATTEMPT THAT IMPOSSIBLE TASK, I WOULD PREFER TO RETURN THE ACT TO
CONGRESS FOR A MORE PRECISE EXPRESSION OF ITS WILL.  CF. UNITED STATES
V. ALCEA BAND OF TILLAMOOKS, 329 U.S. 40, 54 (CONCURRING OPINION);
NORTHWESTERN BANDS OF SHOSHONE INDIANS V. UNITED STATES, 324 U.S. 335,
354-358 (CONCURRING OPINION). 

MOREOVER, THE SUBMERGED LANDS ACT PRESCRIBES NO STANDARDS FOR
DETERMINING A STRICTLY "LEGAL" BOUNDARY ACCORDING TO THE CONVEYANCER'S
ART. THERE ARE, OF COURSE, NO MARKERS OUT IN THE GULF OF MEXICO TO SHOW
WHERE THE BOUNDARIES WERE WHEN THE STATES WERE ADMITTED.  SINCE SOME
WERE ADMITTED ANYWHERE FROM 140 TO 150 YEARS AGO THERE ARE NO LIVING
WITNESSES TO TESTIFY WHERE THEIR BOUNDARIES WERE AT THAT TIME.  BUT
DESPITE THESE DIFFICULTIES, IT IS OUR DUTY TO GIVE EFFECT TO THE
CONGRESSIONAL ACT AS BEST WE CAN.  IT IS THEREFORE MY VIEW THAT SINCE
WE CANNOT LOOK TO LEGALISTIC TESTS OF TITLE, WE MUST LOOK TO THE
CLAIMS, UNDERSTANDINGS, EXPECTATIONS AND USES OF THE STATES THROUGHOUT
THEIR HISTORY.  THIS IS BECAUSE OF THE CONGRESSIONAL EXPRESSIONS,
STATED TIME AND TIME AGAIN THAT THE ACT'S PURPOSE WAS TO RESTORE TO THE
STATES WHAT CONGRESS DEEMED TO HAVE BEEN THEIR HISTORICAL RIGHTS AND
POWERS.  NOR CAN I ACCEPT THE GOVERNMENT'S ARGUMENT THAT THESE STATES'
INTERESTS IN THE MARGINAL SEAS MUST BE DETERMINED IN ACCORD WITH THE
NATIONAL POLICY OF FOREIGN RELATIONS.  EVERYTHING IN THE VERY EXTENDED
CONGRESSIONAL HEARINGS AND REPORTS REFUTES ANY SUCH IDEA.  INSTEAD,
THESE SOURCES INDICATE THAT CONGRESS PASSED THE ACT TO APPLY BROAD
PRINCIPLES OF EQUITY - NOT AS WE SEE IT BUT AS CONGRESS SAW IT.  (FN8)
IN DETERMINING THE BOUNDARIES OF THESE STATES, WE MUST, I THINK,
RECOGNIZE AND FOLLOW THE SAME PRINCIPLES IF WE ARE TO EFFECTUATE THE
CONGRESSIONAL PURPOSE THAT PRODUCED THIS ACT.  THAT IS WHAT I WOULD DO.
A FEW REFERENCES TO THE LEGISLATIVE BACKGROUND WILL ILLUSTRATE THE
GUIDES CONGRESS INTENDED WE SHOULD APPLY IN INTERPRETING ITS ACT. 

SENATOR ELLENDER OF LOUISIANA INVOKED THE EQUITABLE SENSE OF
CONGRESS.  (FN9)  SENATOR HOLLAND OF FLORIDA, THE AUTHOR OF THE BILL,
URGED CONGRESS TO "LOOK INTO THE EQUITIES AND THE MORAL CONSIDERATIONS
THAT ARE INVOLVED  ...  ."  (FN10)  THE PRESIDING OFFICER OF THE SENATE
COMMITTEE, WHO CONDUCTED THE HEARINGS AND REPORTED THE BILL, TOLD THE
CONGRESS THAT "JUSTICE, EQUITY, AND THE BEST INTERESTS OF THE NATION
WILL BE SERVED BY THE ENACTMENT OF THIS LEGISLATION."  (FN11)  THE
SENATE COMMITTEE REPORT ON AN EARLIER BILL, PRINTED AND ADOPTED AS A
PART OF THE REPORT ON THE 1953 ACT, DECLARED THAT "THE CONGRESS, IN THE
EXERCISE OF ITS POLICY POWERS, IS NOT AND SHOULD NOT BE CONFINED TO THE
SAME TECHNICAL RULES THAT BIND THE COURTS IN THEIR DETERMINATION OF
LEGAL RIGHTS OF LITIGANTS.  ...  THE COMMITTEE BELIEVES THAT, AS A
MATTER OF POLICY IN THIS INSTANCE, THE SAME EQUITABLE PRINCIPLES AND
HIGH STANDARDS THAT APPLY BETWEEN INDIVIDUALS, SHOULD BE APPLIED BY
CONGRESS AS BETWEEN THE NATIONAL GOVERNMENT AND THE SOVEREIGN STATES." 
(FN12)  THE VERY LAST PARAGRAPH OF THE REPORT ON THE BILL REFERRED TO
IT AS "AN ACT OF SIMPLE JUSTICE TO EACH OF THE 48 STATES IN THAT IT
REESTABLISHES IN THEM AS A MATTER OF LAW THAT POSSESSION AND CONTROL OF
THE LANDS BENEATH NAVIGABLE WATERS INSIDE THEIR BOUNDARIES WHICH HAVE
EXISTED IN FACT SINCE THE BEGINNING OF OUR NATION.  IT IS NOT A GIFT;
IT IS A RESTITUTION."  (FN13) 

CONGRESS HAS THUS REPEATEDLY EMPHASIZED ITS DESIRE TO HAVE THE
STATES' RIGHTS IN THESE SUBMERGED LANDS DETERMINED NOT UNDER "TECHNICAL
RULES" BUT, AS THE SENATE COMMITTEE SAID, IN ACCORDANCE WITH "EQUITABLE
PRINCIPLES AND HIGH STANDARDS" OF JUSTICE.  (FN14)  TO POINT OUT
SPECIFICALLY WHAT IT MEANT, THAT COMMITTEE REFERRED TO THREE SIMILAR
CASES OF THIS COURT.  ONE, WHICH IS ILLUSTRATIVE, WAS INDIANA V.
KENTUCKY, 136 U.S. 479.  (FN15)  THAT CASE INVOLVED A BOUNDARY DISPUTE
BETWEEN INDIANA AND KENTUCKY.  THE CRUCIAL QUESTION WAS THE
DETERMINATION IN 1890 OF THE LOCATION OF THE KENTUCKY BOUNDARY WHEN
KENTUCKY BECAME A STATE IN 1792.  THAT SAME KIND OF BACKWARD-LOOKING
DETERMINATION OF BOUNDARIES IS INVOLVED HERE WITH REFERENCE TO THE GULF
STATES.  IN THE INDIANA-KENTUCKY CASE, AS HERE, THERE WERE NO
SATISFACTORY MARKERS, AND TESTIMONY OF LIVING WITNESSES WAS DEEMED TO
BE OF LITTLE VALUE.  THERE WAS MUCH EVIDENCE IN THE INDIANA-KENTUCKY
CASE, HOWEVER, THAT KENTUCKY HAD EXERCISED AUTHORITY OVER THE DISPUTED
TERRITORY SINCE IT FIRST BECAME A STATE AND THAT INDIANA HAD NEVER
CHALLENGED THE BOUNDARY OR THE AUTHORITY OF KENTUCKY.  EMPHASIZING THE
GREAT VALUE OF THAT EVIDENCE THIS COURT SAID: "THIS LONG ACQUIESCENCE
IN THE EXERCISE BY KENTUCKY OF DOMINION AND JURISDICTION OVER THE
ISLAND IS MORE POTENTIAL THAN THE RECOLLECTION OF ALL THE WITNESSES
PRODUCED ON EITHER SIDE  ...  .  IT IS A PRINCIPLE OF PUBLIC LAW
UNIVERSALLY RECOGNIZED, THAT LONG ACQUIESCENCE IN THE POSSESSION OF
TERRITORY AND IN THE EXERCISE OF DOMINION AND SOVEREIGNTY OVER IT, IS
CONCLUSIVE OF THE NATION'S TITLE AND RIGHTFUL AUTHORITY."  136 U.S., AT
510.  THE COURT WENT ON TO QUOTE THE FOLLOWING FROM RHODE ISLAND V.
MASSACHUSETTS, 4 HOW.  591, 639, "FOR THE SECURITY OF RIGHTS, WHETHER
OF STATES OR INDIVIDUALS, LONG POSSESSION UNDER A CLAIM OF TITLE IS
PROTECTED.  AND THERE IS NO CONTROVERSY IN WHICH THIS GREAT PRINCIPLE
MAY BE INVOKED WITH GREATER JUSTICE AND PROPRIETY THAN IN A CASE OF
DISPUTED BOUNDARY."  136 U.S., AT 511. 

ACCEPTING, AS I THINK WE SHOULD, THE DESIRE OF CONGRESS TO HAVE THE
ANCIENT BOUNDARIES OF THESE GULF STATES DETERMINED ON THE BASIS OF
THEIR LONG-UNCHALLENGED CLAIMS, RATHER THAN BY THE USE OF SUBTLE AND
REFINED LEGAL INFERENCES, I AM LED TO THE CONCLUSION THAT THE OTHER
GULF STATES, AS WELL AS TEXAS, ARE ENTITLED TO PREVAIL OVER THE
GOVERNMENT HERE.  IT IS ADMITTED THAT PRIOR TO 1937 THE UNITED STATES
NEVER CLAIMED ANY TITLE TO, OR EXERCISED ANY POSSESSION OVER, ANY PART
OF THESE MARGINAL LANDS, EITHER WITHIN OR WITHOUT THREE-MILE LIMITS,
EXCEPT UNDER GRANTS FROM THE STATES.  ON THE OTHER HAND, EACH OF THE
GULF STATES BEGAN TO EXERCISE ACTS OF POSSESSION, OWNERSHIP, DOMINION
AND SOVEREIGNTY OVER THE MARGINAL BELT FROM THE TIME OF ADMISSION INTO
THE UNION, WITHOUT REGARD TO ANY THREE-MILE LIMIT.  (FN16)  THE
HEARINGS OF CONGRESSIONAL COMMITTEES SHOW AND THEIR REPORTS ASSERT THAT
VERY LARGE SUMS OF MONEY HAVE BEEN SPENT BY THE STATES AND THEIR PUBLIC
AGENCIES AND GRANTEES IN THE DEVELOPMENT AND IMPROVEMENT OF THE
MARGINAL SUBMERGED LANDS ADJACENT TO THE STATES' BORDERS.  (FN17)  NOT
ONLY HAVE THE STATES' POSSESSION, DOMINION AND SOVEREIGNTY OVER THESE
MARGINAL BELTS BEEN OPEN AND NOTORIOUS, BUT THAT IS COUPLED WITH THE
FACT THAT FOR MUCH MORE THAN A CENTURY FEDERAL DEPARTMENTS AND AGENCIES
NOT ONLY ACQUIESCED IN BUT UNEQUIVOCALLY RECOGNIZED THE STATES'
RIGHTFUL CLAIMS TO THESE BELTS.  (FN18)  IT IS CONCEDED THAT IN MANY
INSTANCES THE GOVERNMENT ITSELF HAS DEEMED IT NECESSARY TO ACQUIRE
TITLE FROM THESE STATES BEFORE ATTEMPTING TO EXERCISE ANY POWER OF ITS
OWN.  (FN19)  THERE IS NOTHING TO INDICATE THAT THE CLAIMS OR USES OF
THE MARGINAL LANDS WERE EVER LIMITED TO THREE MILES.  CERTAINLY THERE
IS NO EVIDENCE BEFORE US, AND THERE WAS NONE BEFORE THE CONGRESS, THAT
UP TO 1937 THE UNITED STATES HAD EVER ATTEMPTED TO LIMIT THE
SOVEREIGNTY OF THE GULF STATES WITHIN BOUNDARIES THREE MILES FROM THEIR
COASTS.  ON THE OTHER HAND, EVIDENCE CONSIDERED BY THE CONGRESSIONAL
COMMITTEES AND ARGUED TO US PROVIDES AMPLE SUPPORT FOR HOLDING THAT THE
GULF STATES DID NOT CONSIDER THEIR BOUNDARIES AS LIMITED TO THREE
MILES. 

THE CONSTITUTIONS OF ALL THESE STATES DEFINED THEIR BOUNDARIES WHEN
THEY WERE ADMITTED INTO THE UNION.  THE FIRST TEXAS CONSTITUTION KEPT
IN FORCE THE SAME BOUNDARY, THREE LEAGUES INTO THE GULF, CLAIMED FOR
THE REPUBLIC OF TEXAS BEFORE IT BECAME A STATE.  (FN20)  THIS
DEFINITION WAS PRESENTED TO CONGRESS AS A REASON WHY TEXAS SHOULD BE
GRANTED THREE LEAGUES.  THE CONSTITUTIONS OF ALL OF THE OTHER STATES
INVOLVED HERE DEFINED THEIR COASTAL BOUNDARIES AS EXTENDING FROM ONE
GULF POINT TO ANOTHER "INCLUDING ALL ISLANDS" THREE OR SIX LEAGUES FROM
THE SHORE OR COASTLINE.  THE LEGISLATIVE HISTORY OF THE SUBMERGED LANDS
ACT SHOWS THAT THESE DEFINITIONS WERE REPEATEDLY CALLED TO THE
ATTENTION OF CONGRESS AS A REASON WHY THESE GULF STATES SHOULD BE
GRANTED THREE LEAGUES OR MORE.  (FN21)  FROM THE STANDPOINT OF THE
PAPER BOUNDARY CLAIMS, TEXAS URGES, ON THE BASIS OF THE MORE PRECISE
DEFINITION OF ITS SEAWARD BOUNDARY, THAT IT HAS A STRONGER CASE THAN
THE OTHER STATES.  ALTHOUGH ALL THESE PAPER CLAIMS WERE CONSIDERED BY
CONGRESS, NONE WAS TREATED AS DECISIVE OF THE QUESTION OF STATE
BOUNDARIES, AS IS CLEARLY SHOWN BY CONGRESS' REFUSAL TO MAKE TEXAS AND
FLORIDA (FN22) THE EXCLUSIVE BENEFICIARIES OF THIS ACT SIMPLY BECAUSE
THEIR CONSTITUTIONS HAD SPECIFICALLY DEFINED A THREE-LEAGUE SEAWARD
BOUNDARY.  NEVERTHELESS, EACH CONSTITUTIONAL DEFINITION PROVIDES SOME
COLOR OF TITLE FOR EACH STATE'S CLAIM OF A BOUNDARY EXTENDING AT LEAST
THREE LEAGUES FROM ITS COASTLINE.  THE PAPER CLAIMS OF EACH STATE,
THEREFORE, MERELY ADD SOME WEIGHT TO THE OVERWHELMING FACT, AS CONGRESS
SAW IT, THAT FOR MORE THAN 100 YEARS ALL THE GULF STATES EXERCISED THE
ONLY POSSESSION, DOMINION AND SOVEREIGNTY OVER THE SUBMERGED LANDS
ADJACENT TO THEIR COASTLINES THAT WAS EVER EXERCISED AT ALL.  THE
ADMITTED FACTS WITH REFERENCE TO THESE STATE BOUNDARIES THUS ENTITLE
ALL THE STATES TO THREE-LEAGUE MARGINAL BELTS, IF WE FAIRLY APPLY THE
EQUITABLE PRINCIPLES OF PRESCRIPTION UNDER WHICH CONGRESS DECLARED THIS
CONTROVERSY BETWEEN THE FEDERAL GOVERNMENT AND THE GULF STATES SHOULD
BE SETTLED.  (FN23) 

THE RESULT OF THE COURT'S HOLDING IN THIS AND THE FLORIDA CASE (FN24)
IS THAT TEXAS AND FLORIDA WILL HAVE MARGINAL BELTS THAT UNIFORMLY
EXTEND THREE LEAGUES FROM THEIR SHORES.  THE OTHER GULF STATES,
HOWEVER, ARE NOT SO FORTUNATE.  THEIR BOUNDARIES WILL EXTEND ONLY THREE
MILES IN SOME PLACES.  THE GOVERNMENT CONCEDES, HOWEVER, THAT THEIR
BOUNDARIES EXTEND THREE MILES BEYOND THE COASTLINE OF THEIR ISLANDS -
WHICH MAY BE AS FAR AS SIX LEAGUES FROM THE MAINLAND.  THUS, LOUISIANA,
MISSISSIPPI AND ALABAMA WILL HAVE IRREGULAR SAW-TOOTHED BOUNDARIES
PROJECTING SIX LEAGUES AT SOME POINTS AND RETREATING TO WITHIN THREE
MILES OF THE MAINLAND AT OTHER POINTS.  THIS CONDITION FOLLOWS FROM THE
GOVERNMENT'S CONCESSION THAT ALL LANDS BETWEEN THE STATES' ISLANDS AND
THE MAINLAND ARE LANDS BENEATH INLAND WATERS.  THE MERE EXERCISE OF
JURISDICTION OVER SUCH JAGGED BOUNDARIES AS THESE RAISES SERIOUS
PROBLEMS.  MOREOVER, THERE IS AN ELEMENT OF FUNDAMENTAL UNFAIRNESS
ABOUT GRANTING TEXAS AND FLORIDA OWNERSHIP AND SOVEREIGNTY OVER THREE
LEAGUE MARGINAL BELTS WHILE DENYING IT TO THEIR SISTER STATES BORDERING
THE GULF OF MEXICO.  THIS IS BOUND TO FRUSTRATE THE INTENT OF CONGRESS
TO SETTLE THIS WHOLE GULF STATES CONTROVERSY AT THIS TIME. 

THE UNFAIRNESS OF THE COURT'S RESULT IS PARTICULARLY EMPHASIZED WHEN
WE CONSIDER THE PLIGHT IN WHICH IT LEAVES LOUISIANA.  ONE OF THE
GROUNDS THAT CONGRESS ASSIGNED FOR ITS DESIRE TO RESTORE THESE LANDS TO
THE STATES WAS ITS STRONG BELIEF THAT THE STATES RATHER THAN THE
FEDERAL GOVERNMENT SHOULD EXPLOIT THEIR OFFSHORE OIL.  THIS DESIRE
RESTED ON TWO CONCLUSIONS: (1) THAT THE STATES WOULD DO IT BETTER AND
MORE EFFECTIVELY FOR THE INTERESTS OF THE PUBLIC AT LARGE, (FN25) AND
(2) THAT IT WOULD BE UNCONSCIONABLE TO TAKE THIS OIL AWAY FROM THE
STATES AFTER THEY HAVE BEEN SOLELY RESPONSIBLE FOR BRINGING IT INTO THE
PUBLIC USE.  (FN26)  THE RECORD SHOWS THAT LOUISIANA HAD LEASED LAND
OUT MORE THAN THREE LEAGUES FROM ITS COASTLINE AS EARLY AS 1920. 
(FN27)  THERE ARE STILL OIL WELLS OUT THERE.  FOR MANY YEARS ROYALTIES
FROM THOSE WELLS HAVE GONE INTO THE PUBLIC TREASURY OF THE STATE OF
LOUISIANA.  THIS INCOME HAS BECOME A PART OF THE VERY LIFE OF THE
STATE.  (FN28)  IT CONSTITUTES A LARGE PART OF THE SUPPORT OF THE
STATE'S PUBLIC-SCHOOL SYSTEM.  TO TAKE THESE MARGINAL LANDS AWAY FROM
THE STATE OF LOUISIANA AND GIVE TEXAS THE LANDS IT CLAIMS - WHEN TEXAS
APPARENTLY HAS NO WELLS AT ALL BEYOND THE THREE-MILE LIMIT - SEEMS TO
ME COMPLETELY INCOMPATIBLE WITH THE KIND OF JUSTICE AND FAIRNESS THAT
THE CONGRESS WANTED TO BRING ABOUT BY THIS ACT.  MOREOVER, I AM NOT AT
ALL SURE BUT THAT THIS RESULT WILL COMPLETELY UPSET THE CONGRESSIONAL
DESIRE TO BRING ABOUT ONCE AND FOR ALL A SETTLEMENT OF THIS LONG
STANDING CONTROVERSY BY PASSAGE OF THE SUBMERGED LANDS ACT.  (FN29) 

NOTHING IN THE ACT ITSELF INDICATES THAT TEXAS WAS TO BE GIVEN ANY
MORE CONSIDERATION IN THIS CASE THAN LOUISIANA, MISSISSIPPI AND
ALABAMA.  HAD CONGRESS WANTED TO GIVE THE LAND TO TEXAS AND REFUSE TO
GIVE IT TO THE OTHER STATES IT EASILY COULD HAVE DONE SO.  IN FACT,
THIS WAS SPECIFICALLY SUGGESTED TO CONGRESS BY THE ATTORNEY GENERAL OF
THE UNITED STATES, AND THE CONGRESS REJECTED IT. (FN30)  TIME AND AGAIN
CONGRESS EMPHASIZED THAT ITS INTERESTS WERE FOCUSED ON THE PROBLEM OF
THESE LANDS BECAUSE OF THE UNFAIRNESS IT SAW IN TAKING THEM FROM THE
GULF STATES. 

AS CONGRESS INDICATED, IT IS TIME THAT THE PROBLEM BE SOLVED, THE
TITLE BE QUIETED AND THE CONTROVERSY BE STILLED.  (FN31)  IN MY
JUDGMENT TO INTERPRET THIS ACT IN A WAY WHICH GRANTS THE LAND TO TEXAS
AND FLORIDA AND WITHHOLDS IT FROM THE OTHER GULF STATES SIMPLY PROLONGS
THIS COSTLY AND DISQUIETING CONTROVERSY.  IT WILL NOT BE FINALLY
SETTLED UNTIL IT IS SETTLED THE WAY CONGRESS BELIEVES IS RIGHT, AND I
DO NOT THINK CONGRESS WILL BELIEVE IT RIGHT TO AWARD THESE MARGINAL
LANDS TO TEXAS AND FLORIDA AND DENY THEM TO THE OTHER GULF STATES. 

FN1  67 STAT. 29, 43 U.S.C. SECS. 1301-1315. 

FN2  H.J. RES. 225, 79TH CONG., 2D SESS., 92 CONG. REC. 10660; S.J.
RES. 20, 82D CONG., 2D SESS., 98 CONG. REC. 6251. 

FN3  UNITED STATES V. TEXAS, 339 U.S. 707; UNITED STATES V.
LOUISIANA, 339 U.S. 699; UNITED STATES V. CALIFORNIA, 332 U.S. 19. 

FN4  "THEREFORE, IN FULL ACCEPTANCE OF WHAT THE SUPREME COURT HAS NOW
FOUND THE LAW TO BE, CONGRESS MAY NEVERTHELESS ENACT SUCH LEGISLATION
AS IN ITS WISDOM IT DEEMS ADVISABLE TO SOLVE THE PROBLEMS ARISING OUT
OF THE DECISION."  S. REP. NO. 133, 83D CONG., 1ST SESS. 56, FROM THE
REPRINT, IN APPENDIX E, OF S. REP. NO. 1592, 80TH CONG., 2D SESS. 

"MR. DANIEL.  ...  WE CAN AND DO ACCEPT THE DECISIONS OF THE COURT AS
THE INTERPRETATION OF THE LAW AS IT EXISTS TODAY, BUT, BY THE SAME
TOKEN, THE CONGRESS OF THE UNITED STATES, IN PLACING ITS INTERPRETATION
ON THE CONSTITUTION AND IN DECIDING THE EQUITIES CAN WRITE THE LAW FOR
THE FUTURE DIFFERENTLY FROM THAT WHICH THE COURT HAS FOUND IT TO BE AT
THIS TIME. 

"THAT IS WHAT WE PROPOSE IN SENATE JOINT RESOLUTION 13.  WE WANT
CONGRESS TO WRITE THE LAW FOR THE FUTURE EXACTLY AS IT WAS UNDERSTOOD
AND BELIEVED TO BE DURING THE FIRST 150 YEARS OF THE EXISTENCE OF THIS
NATION."  99 CONG. REC. 4080-4081. 

FN5  "FINALLY, IT IS THE INTENT AND PURPOSE OF THIS BILL TO ESTABLISH
THE LAW FOR THE FUTURE SO THAT THE RIGHTS AND POWERS OF THE STATES AND
THOSE HOLDING UNDER STATE AUTHORITY MAY BE PRESERVED AS THEY EXISTED
PRIOR TO THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE
CALIFORNIA CASE."  S. REP. NO. 133, 83D CONG., 1ST SESS. 75.  THIS IS
THE CLOSING PARAGRAPH OF S. REP. NO. 1592, 80TH CONG., 2D SESS.,
PRINTED AS AN APPENDIX TO THE REPORT ON THE 1953 ACT.  SEE ALSO S. REP.
NO. 133, 83D CONG., 1ST SESS. 6:  "THE OFFSHORE RIGHTS WHICH ARE
CONFIRMED TO THE STATES AND THEIR GRANTEES ARE RIGHTS GROWING OUT OF
THE CONCEPT OF OWNERSHIP AND PROPRIETARY USE AND DEVELOPMENT - RIGHTS
WHICH WERE FIRST ASSERTED BY THE FEDERAL GOVERNMENT IN RECENT YEARS AND
WHICH IT HAS NEVER EXERCISED NOR ENJOYED.  THESE RIGHTS, LEGALLY VESTED
IN THE STATES AND THEIR GRANTEES BY SENATE JOINT RESOLUTION 13, HAVE IN
FACT BEEN ENJOYED AND EXERCISED BY THEM FROM THE BEGINNING OF OUR
HISTORY AS A NATION UNTIL THE DATE OF THE CALIFORNIA DECISION."  AND
SEE HEARINGS BEFORE THE SENATE INTERIOR AND INSULAR AFFAIRS COMMITTEE
ON S.J.  RES. 13, ETC., 83D CONG., 1ST SESS. 32. 

FN6  "IT IS ...  DECLARED TO BE IN THE PUBLIC INTEREST THAT  ...
TITLE TO  ...  THE LANDS BENEATH NAVIGABLE WATERS WITHIN THE BOUNDARIES
OF THE RESPECTIVE STATES  ...  BE  ...  VESTED IN AND ASSIGNED TO THE
RESPECTIVE STATES  ...  ."  43 U.S.C. SEC. 1311(A).  "THE TERM 'LANDS
BENEATH NAVIGABLE WATERS' MEANS  ...  (2) ALL LANDS  ...  SEAWARD TO A
LINE THREE GEOGRAPHICAL MILES DISTANT FROM THE COAST LINE OF EACH SUCH
STATE  ...  ."  SEC. 1301(A). 

FN7  "MOREOVER, AT THE TIME LOUISIANA AND TEXAS EXTENDED THEIR
SEAWARD BOUNDARIES TO 27 MARINE MILES, THE UNITED STATES WAS NOT
CLAIMING OWNERSHIP OR JURISDICTION AND CONTROL OVER THE CONTINENTAL
SHELF.  ACTUALLY, SOME YEARS EARLIER THE STATE DEPARTMENT HAD TAKEN THE
POSTIION THAT THE UNITED STATES HAD NO JURISDICTION OVER THE OCEAN
BOTTOM OF THE GULF OF MEXICO BEYOND THE TERRITORIAL WATERS ADJACENT TO
THE COAST AND THAT THEREFORE IT WAS NOT IN A POSITION TO GRANT A LEASE
ON THIS AREA  ...  .

"FURTHERMORE, THE UNITED STATES DID NOT DISPUTE THE ACTIONS TAKEN BY
THE TWO STATES."  H.R.  REP. NO. 215, 83D CONG., 1ST SESS. 25-26.  AND
SEE NOTE 18, INFRA. 

SEE, E.G., AS TO LOUISIANA, THE STATEMENT OF MISS LUCILLE MAY GRACE,
REGISTER, STATE LAND OFFICE, STATE OF LOUISIANA: 

"IT STRIKES ME AS BEING HIGHLY INCONGRUOUS THAT THE DEPARTMENT OF THE
INTERIOR OF THE FEDERAL GOVERNMENT, AT THIS LATE DATE, SHOULD ASSERT
THE SLIGHTEST CLAIM TO SUCH LANDS FOR IT WAS IN 1908 AND AGAIN IN 1915
THAT THE GENERAL LAND OFFICE OF THE DEPARTMENT OF THE INTERIOR WROTE TO
THE FEDERAL LAND OFFICE OF LOUISIANA, SAID RECORDS NOW BEING A PART OF
THE RECORDS OF MY OFFICE, EXPLAINING THAT CERTAIN LANDS BENEATH
TIDEWATERS BELONGED TO LOUISIANA BY HER RIGHT OF SOVEREIGNTY, AND THAT
THE STATE OF LOUISIANA HAD MADE A MISTAKE IN APPLYING 'TO SELECT SUCH
LANDS UNDER THE SWAMP LANDS ACT'  ...  . 

"LET ME RESPECTFULLY REQUEST AND URGE YOUR FAVORABLE CONSIDERATION OF
THIS RESOLUTION IN ORDER THAT MY STATE AND ALL STATES, AS WELL AS THE
BUSINESS INTERESTS OF OUR COUNTRY, WHO HAVE IN THE PAST SPENT SUCH HIGH
SUMS OF MONEY AND WHO PLAN TO INVEST GREATER SUMS IN THE FUTURE IN THE
OIL AND GAS DEVELOPMENT OF OUR NATURAL RESOURCES, WILL FEEL ASSURED
THAT OUR CLAIMS TO SUCH AREAS ARE RECOGNIZED BY ALL PERSONS - ONCE AND
FOR ALL - CLAIMS THAT WE HAVE CONSIDERED SACRED AND VALID IN MY STATE
SINCE LOUISIANA WAS ADMITTED TO THE UNION IN 1812."  JOINT HEARINGS
BEFORE HOUSE COMMITTEE ON JUDICIARY, SENATE SPECIAL JUDICIARY
SUBCOMMITTEE ON H.J. RES. 118, ETC., 79TH CONG., 1ST SESS. 82-83. 

FN8  UNDER THE HEADING, "EQUITY BEST SERVED BY ESTABLISHING STATE
OWNERSHIP," THE EARLIER SENATE REPORT INCORPORATED IN THE REPORT ON THE
1953 ACT SUMMARIZES THE EQUITABLE FEATURES INVOLVED: 

"THE REPEATED ASSERTIONS BY OUR HIGHEST COURT FOR A PERIOD OF MORE
THAN A CENTURY OF THE DOCTRINE OF STATE OWNERSHIP OF ALL NAVIGABLE
WATERS, WHETHER INLAND OR NOT, AND THE UNIVERSAL BELIEF THAT SUCH WAS
THE SETTLED LAW, HAVE FOR ALL PRACTICAL PURPOSES ESTABLISHED A
PRINCIPLE WHICH THE COMMITTEE BELIEVES SHOULD AS A MATTER OF POLICY BE
RECOGNIZED AND CONFIRMED BY CONGRESS AS A RULE OF PROPERTY LAW. 

"THE EVIDENCE SHOWS THAT THE STATES HAVE IN GOOD FAITH ALWAYS TREATED
THESE LANDS AS THEIR PROPERTY IN THEIR SOVEREIGN CAPACITIES; THAT THE
STATES AND THEIR GRANTEES HAVE INVESTED LARGE SUMS OF MONEY IN SUCH
LANDS; THAT THE STATES HAVE RECEIVED, AND ANTICIPATE RECEIVING LARGE
INCOME FROM THE USE THEREOF, AND FROM TAXES THEREON; THAT THE BONDED
INDEBTEDNESS, SCHOOL FUNDS, AND TAX STRUCTURES OF SEVERAL STATES ARE
LARGELY DEPENDENT UPON STATE OWNERSHIP OF THESE LANDS; AND THAT THE
LEGISLATIVE, EXECUTIVE, AND JUDICIAL BRANCHES OF THE FEDERAL GOVERNMENT
HAVE ALWAYS CONSIDERED AND ACTED UPON THE BELIEF THAT THESE LANDS WERE
THE PROPERTIES OF THE SOVEREIGN STATES. 

"IF THESE SAME FACTS WERE INVOLVED IN A DISPUTE BETWEEN PRIVATE
INDIVIDUALS, AN EQUITABLE TITLE TO THE LANDS WOULD RESULT IN FAVOR OF
THE PERSON IN POSSESSION  ...  ."  S. REP. NO. 133, 83D CONG., 1ST
SESS. 67, REPRINTING S. REP. NO. 1592, 80TH CONG., 2D SESS. 

TO THE SAME EFFECT IS THE CONCLUSION OF THE 1953 REPORT:  "BY THIS
JOINT RESOLUTION THE FEDERAL GOVERNMENT IS ITSELF DOING THE EQUITY IT
EXPECTS OF ITS CITIZENS."  ID., AT 24. 

FN9  99 CONG. REC. 4393-4394. 

FN10  HEARINGS BEFORE THE SENATE COMMITTEE ON INTERIOR AND INSULAR
AFFAIRS ON S.J. RES. 13, ETC., 83D CONG., 1ST SESS. 69. 

FN11  99 CONG. REC. 4382. 

FN12  S. REP. NO. 133, 83D CONG., 1ST SESS. 68, 67.  AND SEE
STATEMENT OF SENATOR DANIEL IN THE HEARINGS BEFORE THE SENATE INTERIOR
AND INSULAR AFFAIRS COMMITTEE ON S.J. RES. 13, ETC., 83D CONG., 1ST
SESS. 695.    FN13  ID., AT 24. 

FN14  TEXT ACCOMPANYING NOTE 12, SUPRA. 

FN15  THE OTHER TWO CASES WERE UNITED STATES V. TEXAS, 162 U.S. 1,
AND NEW MEXICO V. TEXAS, 275 U.S. 279.  S. REP. NO. 133, SUPRA, AT 67. 

FN16  SEE NOTE 5, SUPRA. 

FN17  "STATES AND THEIR GRANTEES HAVE EXPENDED MILLIONS OF DOLLARS TO
BUILD PIERS, BREAKWATERS, JETTIES, AND OTHER STRUCTURES, TO INSTALL
SEWAGE-DISPOSAL SYSTEMS AND TO FILL IN BEACHES AND RECLAIM LANDS. 
DURING THE PAST TWO DECADES CALIFORNIA, LOUISIANA, AND TEXAS HAVE BEEN
LEASING SUBSTANTIAL PORTIONS OF THE LANDS IN QUESTION FOR OIL, GAS, AND
MINERAL DEVELOPMENT.  CALIFORNIA COMMENCED SUCH LEASING IN 1921 AND
TEXAS IN 1926.  OTHER STATES, INCLUDING WASHINGTON, FLORIDA,
MISSISSIPPI, NORTH CAROLINA, AND MARYLAND, HAVE MADE LEASES FOR LIKE
PURPOSES.  STATES HAVE LEVIED AND COLLECTED TAXES UPON INTERESTS IN AND
IMPROVEMENTS ON THESE LANDS.  IT APPEARS TO THE COMMITTEE THAT THE
STATES HAVE EXERCISED EVERY SOVEREIGN RIGHT INCIDENT TO THE UTILIZATION
OF THESE SUBMERGED COASTAL LANDS."  S. REP. NO. 133, 83D CONG., 1ST
SESS. 64, FROM S. REP.  NO. 1592, 80TH CONG., 2D SESS.  SENATOR HOLLAND
PLACED THE FIGURE AT "BILLIONS OF DOLLARS OF INVESTED MONEY."  HEARINGS
BEFORE THE SENATE INTERIOR AND INSULAR AFFAIRS COMMITTEE ON S.J.  RES.
13, ETC., 83D CONG., 1ST SESS. 74. 

FN18  PRESIDENT TRUMAN, IN HIS VETO MESSAGE OF S.J. RES. 20, 82D
CONG., 2D SESS., ACKNOWLEDGED THAT, "EVEN SO CAREFUL AND ZEALOUS A
GUARDIAN OF THE PUBLIC INTEREST AS THE LATE SECRETARY OF THE INTERIOR,
HAROLD ICKES, AT FIRST ASSUMED THAT THE UNDERSEA LANDS WERE OWNED BY
THE STATES."  H.R. REP. NO. 215, 83D CONG., 1ST SESS. 104.  AND THE
SENATE REPORT NOTED THAT "THE FACTS ARE CONCLUSIVE THAT AT LEAST PRIOR
TO 1937 THE POLICY OF THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT HAS
CONSISTENTLY BEEN TO RECOGNIZE STATE OWNERSHIP OF THE SUBMERGED LANDS,
WHETHER INLAND OR NOT, WITHIN THE TERRITORIAL JURISDICTION OF THE
STATE."  S. REP. NO. 133, 83D CONG., 1ST SESS. 65, FROM S. REP. NO.
1592, 80TH CONG., 2D SESS.  A LETTER TO THIS EFFECT WRITTEN BY
SECRETARY ICKES IN 1933 WAS READ AT THE HEARINGS BEFORE THE SENATE
INTERIOR AND INSULAR AFFAIRS COMMITTEE ON S.J. RES. 13, ETC., 83D
CONG., 1ST SESS. 68.  AND SEE NOTE 7, SUPRA, AND ACCOMPANYING TEXT. 

FN19  SENATOR HOLLAND MENTIONED AN INCOMPLETE LIST PREPARED BY
CALIFORNIA OF 195 SUCH INSTANCES INVOLVING ALL COASTAL STATES, AND HE
DISCUSSED TWO SPECIFIC GRANTS FROM FLORIDA TO THE FEDERAL GOVERNMENT. 
HEARINGS BEFORE THE SENATE INTERIOR AND INSULAR AFFAIRS COMMITTEE ON
S.J. RES. 13, ETC., 83D CONG., 1ST SESS. 63-64, 65, 66, AND SEE SENATOR
DANIEL'S STATEMENT AT 233. 

FN20  TEXAS CONST., 1845, ART. XIII, SEC. 3, CONTINUED IN EFFECT "ALL
LAWS  ...  IN FORCE IN THE REPUBLIC OF TEXAS," THUS INCLUDING THE 1836
BOUNDARY ACT.  REPUBLIC OF TEXAS BOUNDARY ACT, DECEMBER 19, 1836, 1
LAWS OF THE REPUBLIC OF TEXAS 133 (3 LEAGUES). 

FN21  THESE PROVISIONS ARE FOUND IN ALA. CONST., 1819, PREAMBLE (6
LEAGUES); MISS.  CONST., 1817, PREAMBLE (6 LEAGUES); LA. CONST., 1812,
PREAMBLE (3 LEAGUES). 

FROM THE BEGINNING OF THE CONGRESSIONAL HEARINGS ON THE MATTER OF
SUBMERGED LANDS, IT HAS BEEN CLEAR TO CONGRESS THAT ALL THE GULF
STATES' CONSTITUTIONAL DEFINITIONS OF THEIR BOUNDARIES HAVE BEEN A
BASIS OF THEIR CLAIMS, WITHOUT REGARD TO THE SLIGHT DIFFERENCES IN
LANGUAGE.  THESE CLAIMS REAPPEARED THROUGHOUT THE HEARINGS.  FOR
ILLUSTRATION, AN EIGHT-PAGE OPINION OF DEAN BORCHARD OF YALE APPEARED
AS "APPENDIX B" TO S. REP. NO. 1260, 79TH CONG., 2D SESS., AS EARLY AS
1946.  HE STATED:  "EXAMINING THE CONDUCT OF THE STATES WE FIND A
SERIES OF PROVISIONS IN STATE CONSTITUTIONS AND STATUTES IN WHICH
SEVERAL STATES, E.G., ALABAMA, FLORIDA, GEORGIA, MISSISSIPPI, TEXAS,
AND LOUISIANA, LAY CLAIM TO A MARITIME BOUNDARY OF 3 LEAGUES, 6
LEAGUES, OR MORE."  ID., AT 16. 

DURING THE 1953 HEARINGS SENATOR LONG OF LOUISIANA WAS CONCERNED BY
STATEMENTS MADE BY SENATOR HOLLAND OF FLORIDA, THE AUTHOR OF THE BILL,
TO THE EFFECT THAT ONLY FLORIDA AND TEXAS WOULD BE ENTITLED TO THREE
LEAGUES. 

"SENATOR LONG.  MAY I ASK THE SENATOR A QUESTION CONCERNING MY
STATE?  WHEN LOUISIANA CAME INTO THE UNION, IT IS MY RECOLLECTION THAT
THE ENABLING ACT WHICH WAS PASSED BY CONGRESS DESCRIBED THE BOUNDARIES
OF LOUISIANA AS INCLUDING ALL ISLANDS WITHIN 3 LEAGUES OF THE COAST
...  ." 

TO THIS SENATOR HOLLAND REPLIED, "THE SENATOR FROM FLORIDA HAS READ
AND STUDIED TO SOME EXTENT THE QUESTION WHICH THE SENATOR FROM
LOUISIANA HAS MENTIONED.  THE SENATOR FROM FLORIDA THINKS THAT THE
COAST OF LOUISIANA IS THAT RIM OF ISLANDS, BUT THE COURT MIGHT NOT SO
FIND WHEN IT WENT BEFORE THE COURT."  HEARINGS BEFORE THE SENATE
INTERIOR AND INSULAR AFFAIRS COMMITTEE, 83D CONG., 1ST SESS. 48. 

FN22  BY ANOTHER OPINION, HANDED DOWN THIS DAY, WE HAVE HELD THAT
FLORIDA IS ENTITLED TO A THREE-LEAGUE MARGINAL BELT BECAUSE CONGRESS IN
1868 EXPRESSLY APPROVED THE FLORIDA CONSTITUTION WHICH PRECISELY
DEFINED A THREE-LEAGUE SEAWARD BOUNDARY.  UNITED STATES V. FLORIDA,
POST, P. 121. 

FN23  SEE TEXT ACCOMPANYING NOTES 12 AND 15, SUPRA. 

FN24  SEE NOTE 22, SUPRA. 

FN25  "THE COMMITTEE BELIEVES THAT FAILURE TO CONTINUE EXISTING STATE
CONTROL WILL RESULT IN DELAYING FOR AN INDEFINITE TIME THE INTENSIVE
DEVELOPMENT NOW UNDER WAY ON THESE LANDS AND THAT ANY DELAY IS, IN THE
WORDS OF SECRETARY FORRESTAL, 'CONTRARY TO THE BEST INTEREST OF THE
UNITED STATES FROM THE VIEWPOINT OF NATIONAL SECURITY.'  ...  LOCAL
CONTROLS AND PROMPTNESS OF ACTION ARE HIGHLY DESIRABLE.  THE FIXED,
INFLEXIBLE RULES AND THE DELAYS AND REMOTENESS WHICH ARE INSEPARABLE
FROM A CENTRALIZED NATIONAL CONTROL WOULD, IN THE COMMITTEE'S JUDGMENT,
BE IMPROVIDENT."  S. REP. NO. 133, 83D CONG., 1ST SESS. 70, 71, FROM S.
REP. NO. 1592, 80TH CONG., 2D SESS. 

FN26  "THEREFORE, THE COMMITTEE CONCLUDES THAT IN ORDER TO AVOID
INJUSTICES TO THE SOVEREIGN STATES AND THEIR GRANTEES, LEGISLATIVE
EQUITY CAN BEST BE DONE BY THE ENACTMENT OF S. 1988."  ID., AT 68.  AND
SEE NOTES 8-19, SUPRA. 

FN27  SEE DISCUSSION IN HEARINGS BEFORE THE SENATE INTERIOR AND
INSULAR AFFAIRS COMMITTEE ON S.J. RES. 13, ETC., 83D CONG., 1ST SESS.
341, AND JOINT HEARINGS BEFORE HOUSE COMMITTEE ON JUDICIARY, SENATE
SPECIAL JUDICIARY SUBCOMMITTEE ON H.J. RES. 118, ETC., 79TH CONG., 1ST
SESS.  82. 

FN28  SEE NOTE 7, SUPRA, FOR THE STATEMENT OF THE LOUISIANA REGISTRAR
IN 1945.  SHE ALSO SAID: 

"FOR THE FISCAL YEAR OF 1944 MY REPORT SHOWS THAT I HAVE COLLECTED
FIVE AND HALF MILLIONS OF DOLLARS FROM THIS SOURCE.  IN FACT THE MOST
PRODUCTIVE AREA IN THE ENTIRE STATE IS THAT IN THE MARITIME BELT, OR
FROM LANDS BENEATH THE TIDEWATERS  ...  . 

"I WOULD THINK THAT YOU GENTLEMEN WILL READILY UNDERSTAND WHAT
REVENUES OF THIS SIZE MEAN TO THE FINANACIAL STRUCTURE OF LOUISIANA
...  .  TERREBONNE PARISH, WHICH IS SITUATED ON THE COAST OF LOUISIANA,
RECEIVED IN 1944 $45,500 FROM THE OIL AND GAS PRODUCTION.  SAID FUNDS
ARE EXPENDED BY THE POLICE JURY FOR THE BENEFIT OF THE PARISH.  IT
SHOULD CERTAINLY BE OBVIOUS WHAT THIS LOSS OF REVENUE WOULD MEAN TO THE
TAXPAYERS NOT ONLY OF THIS ONE PARISH BUT OF THE ENTIRE STATE."  JOINT
HEARINGS BEFORE HOUSE COMMITTEE ON JUDICIARY, SENATE SPECIAL JUDICIARY
SUBCOMMITTEE ON H.J. RES. 118, ETC., 79TH CONG., 1ST SESS. 82. 

SEE NOTE 8, SUPRA, FOR THE LISTING BY CONGRESS OF THESE FACTORS AS
GOING TO THE EQUITY OF THE STATES' OWNERSHIP (E.G., "THAT THE BONDED
INDEBTEDNESS, SCHOOL FUNDS, AND TAX STRUCTURES OF SEVERAL STATES ARE
LARGELY DEPENDENT UPON STATE OWNERSHIP OF THESE LANDS  ...  ."  S. REP.
NO. 133, 83D CONG., 1ST SESS. 67). 

FN29  SEE NOTE 31, INFRA. 

FN30  "IN ORDER THAT THERE MAY BE NO MISUNDERSTANDING, GENERALLY
SPEAKING WHAT WE HAVE IN MIND IS THE 3-MILE LINE, EXCEPT FOR THE COASTS
OF TEXAS AND THE WEST COAST OF FLORIDA, WHERE 3 LEAGUES WOULD GENERALLY
PREVAIL."  HEARINGS BEFORE THE SENATE COMMITTEE ON INTERIOR AND INSULAR
AFFAIRS ON S.J. RES. 13, ETC., 83D CONG., 1ST SESS. 957.  AND SEE 926,
931-933  957-958, AND SENATOR JACKSON'S COMMENTS, AT 279-281. 

FN31  "THE COMMITTEE DEEMS IT IMPERATIVE THAT CONGRESS TAKE ACTION AT
THE EARLIEST POSSIBLE DATE TO CLARIFY THE ENDLESS CONFUSION AND
MULTITUDE OF PROBLEMS RESULTING FROM THE CALIFORNIA DECISION, AND
THEREBY BRING TO A SPEEDY TERMINATION THIS WHOLE CONTROVERSY. 
OTHERWISE INEQUITIES, INJUSTICES, VEXATIOUS AND INTERMINABLE
LITIGATION, AND THE RETARDMENT OF THE MUCH-NEEDED DEVELOPMENT OF THE
RESOURCES IN THESE LANDS WILL INEVITABLY RESULT  ...  .  WE ARE CERTAIN
THAT UNTIL THE CONGRESS ENACTS A LAW CONSONANT WITH WHAT THE STATES AND
THE SUPREME COURT BELIEVED FOR MORE THAN A CENTURY WAS THE LAW,
CONFUSION AND UNCERTAINTY WILL CONTINUE TO EXIST, TITLES WILL REMAIN
CLOUDED, AND YEARS OF VEXATIONS AND COMPLICATED LITIGATION WILL
RESULT."  S. REP. NO. 133, 83D CONG., 1ST SESS. 57, 61, FROM S. REP.
NO. 1592, 80TH CONG., 2D SESS. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

TEXAS WAS ADMITTED TO THE UNION IN 1845 (9 STAT. 108) PURSUANT TO A
PRIOR JOINT RESOLUTION (5 STAT. 797) WHICH RESERVED FOR ADJUSTMENT BY
THE UNITED STATES "ALL QUESTIONS OF BOUNDARY THAT MAY ARISE WITH OTHER
GOVERNMENTS."  TEXAS AS EARLY AS 1836 HAD CLAIMED, AS THE OPINION OF
THE COURT SHOWS, A SEAWARD BOUNDARY OF "THREE LEAGUES FROM LAND."  SUCH
A CLAIM CONFLICTED WITH OUR NATIONAL POLICY IN THE GULF, SINCE THE
UNITED STATES BEFORE THEN HAD IN TREATIES WITH SPAIN (8 STAT. 252) AND
WITH MEXICO (8 STAT. 372) DESCRIBED THE BOUNDARIES BETWEEN THE TWO
COUNTRIES WEST OF THE MISSISSIPPI AS COMMENCING "ON THE GULF OF MEXICO,
AT THE MOUTH OF THE RIVER SABINE, IN THE SEA."  MOREOVER, THE
CONVENTION OF 1838 TO ESTABLISH THE BOUNDARY BETWEEN THE UNITED STATES
AND TEXAS (8 STAT. 511) AGREED TO THE RUNNING AND MARKING OF "THAT
PORTION OF THE SAID BOUNDARY WHICH EXTENDS FROM THE MOUTH OF THE
SABINE, WHERE THAT RIVER ENTERS THE GULPH OF MEXICO, TO THE RED
RIVER."  CERTAINLY IN THAT CONVENTION TEXAS WAS NOT GOING SO FAR AS TO
CLAIM, AS SHE HAD EARLIER, "THREE LEAGUES" INTO THE GULF. 

I AGREE WITH THE COURT THAT THERE WAS NOTHING DONE AT OR SUBSEQUENT
TO THAT TIME TO APPROVE THE TEXAS CLAIM TO THREE LEAGUES FROM LAND
UNLESS IT BE THE TREATY OF GUADALUPE HIDALGO SIGNED ON FEBRUARY 2,
1848, 9 STAT. 922, BY THE UNITED STATES AND MEXICO AND WHICH, INTER
ALIA, FIXED THE "BOUNDARY LINE BETWEEN THE TWO REPUBLICS" IN THE GULF
OF MEXICO "THREE LEAGUES FROM LAND, OPPOSITE THE MOUTH OF THE RIO
GRANDE."  CAN WE SAY THAT THE UNITED STATES SAT AT THAT CONFERENCE
TABLE NEGOTIATING FOR TEXAS AND HER BOUNDARY CLAIM?  WAS THE SEAWARD
BOUNDARY ONCE CLAIMED BY TEXAS NOW CLAIMED BY THE UNITED STATES IN
RECOGNITION THAT TEXAS OWNED IT? 

THERE IS NOT A WORD IN THE HISTORY OF THE NEGOTIATIONS TO INDICATE
THAT THE UNITED STATES HAD MORAL OR LEGAL CLAIM TO THE THREE-LEAGUE
BELT BECAUSE OF THE EARLIER CLAIM OF TEXAS.  THERE IS NO SUGGESTION
THAT THE UNITED STATES CLAIMED DERIVATIVELY FROM THE RIGHT OF TEXAS AND
THUS UPHELD THE POSITION OF TEXAS, APPROVING THE CLAIM MADE BY TEXAS IN
1836.  THERE IS NOT A WORD INDICATING THAT THE TREATY OF 1848 WAS IN
FORM OR IN ESSENCE AN UNDERTAKING BY CONGRESS TO FIX THE BOUNDARIES OF
TEXAS UNDER THE 1838 CONVENTION. 

THE TERMS OF THE 1838 CONVENTION DO NOT SUPPORT ANY SUCH CONSTRUCTION
FOR, AS I HAVE SAID, THAT CONVENTION FIXED THE BOUNDARY AS EXTENDING
"FROM THE MOUTH OF THE SABINE, WHERE THAT RIVER ENTERS THE GULPH OF
MEXICO," NOT "THREE LEAGUES" SEAWARD OF THAT POINT.  TO CONCLUDE,
THEREFORE, THAT THE TREATY OF GUADALUPE HIDALGO WAS INTENDED TO FIX THE
LAND AND SEA BOUNDARIES OF TEXAS IN ACCORDANCE WITH THE TEXAS BOUNDARY
ACT OF 1836 IS TO INDULGE IN MENTAL GYMNASTICS BEYOND MY CAPACITIES. 
THE AGREEMENT BY THE UNITED STATES TO FIX THE BOUNDARIES OF TEXAS WAS
NOT CONTAINED IN THE UNILATERAL ACT OF TEXAS REFLECTED IN HER 1836
STATUTE BUT BY THE CONVENTION OF 1838 WHICH REQUIRED THE SEAWARD
BOUNDARY TO EXTEND FROM "THE MOUTH OF THE SABINE, WHERE THAT RIVER
ENTERS THE GULPH OF MEXICO."  THE OBLIGATION IN THIS CONVENTION THUS IS
AT WAR WITH ANY INFERENCE THAT THE SEAWARD BOUNDARY WAS TO BE "THREE
LEAGUES" FROM SHORE.  CF. UNITED STATES V. TEXAS, 162 U.S. 1, 32. 

WHILE THE 1838 CONVENTION FAILED TO INCLUDE ANY SEAWARD TERRITORY, A
JOINT COMMISSION APPOINTED TO MAKE THE SURVEY PURSUANT TO THE 1838
CONVENTION ACTUALLY MARKED THE BOUNDARY BETWEEN THE UNITED STATES AND
THE REPUBLIC OF TEXAS AT THE MOUTH OF THE SABINE RIVER - NOT THREE
LEAGUES INTO THE GULF OF MEXICO.  (FN1) 

IT IS TRUE THAT THE JOINT RESOLUTION OF 1845 (5 STAT. 797) CALLED FOR
THE FORMATION OF TEXAS "SUBJECT TO THE ADJUSTMENT BY THIS GOVERNMENT OF
ALL QUESTIONS OF BOUNDARY THAT MAY ARISE WITH OTHER GOVERNMENTS."  BUT
THE SITUATION ENVISAGED BY THAT CLAUSE SOON CHANGED.  THE MEXICAN WAR
BROKE OUT IN 1846; AND THE TREATY OF GUADALUPE HIDALGO FINALLY BROUGHT
IT TO A CLOSE.  BY THE TIME THE TREATY NEGOTIATIONS STARTED THE UNITED
STATES WAS THINKING IN NEW DIMENSIONS.  THE PROBLEM WAS NO LONGER
FINDING AND ESTABLISHING WHAT THE TEXAS BOUNDARIES HAD BEEN.  WE THEN
PUT THAT QUESTION TO ONE SIDE.   THE INSTRUCTIONS TO OUR
REPRESENTATIVE, NICHOLAS P. TRIST, WHICH INCLUDED A PROJET OF THE
TREATY, READ IN PART, "THE EXTENSION OF OUR BOUNDARIES OVER NEW MEXICO
AND UPPER CALIFORNIA, FOR A SUM NOT EXCEEDING TWENTY MILLIONS OF
DOLLARS, IS TO BE CONSIDERED A SINE QUA NON OF ANY TREATY.  YOU MAY
MODIFY, CHANGE, OR OMIT THE OTHER TERMS OF THE PROJET IF NEEDFUL, BUT
NOT SO AS TO INTERFERE WITH THIS ULTIMATUM."  (FN2)  IF LOWER
CALIFORNIA WAS INCLUDED, TRIST WAS AUTHORIZED TO PAY UP TO
$25,000,000.  (FN3)  TRIST RECORDED AT HIS FIRST CONFERENCE WITH THE
MEXICAN COMMISSIONERS THAT "OUR CLAIM FOR EXTENSION OF TERRITORY" WAS
PLACED "ON THE GROUND OF INDEMNITY FOR THE EXPENSES OF THE WAR."  (FN4)
THE ACQUISITION OF TERRITORY FROM MEXICO AS INDEMNITY WAS REPEATED
OVER AND AGAIN BY PRESIDENT POLK IN HIS MESSAGE OF DECEMBER 7, 1847. 
(FN5)  THUS HE SAID, "  ...  IF NO MEXICAN TERRITORY WAS ACQUIRED, NO
INDEMNITY COULD BE OBTAINED."  (FN6)  AGAIN, "THE DOCTRINE OF NO
TERRITORY IS THE DOCTRINE OF NO INDEMNITY."  (FN7)  AND WHAT HE WENT ON
TO SAY SHOULD REMOVE ANY DOUBTS ABOUT THE NATURE OF THE CONTROVERSY
WITH MEXICO.  FIRST, IT WILL BE APPARENT FROM WHAT FOLLOWS THAT "THREE
LEAGUES" WERE NOT A PART OF HIS THINKING WHEN IT CAME TO THE SEAWARD
BOUNDARY.  SECOND, IT IS OBVIOUS THAT THE SOLE PREOCCUPATION WAS WITH
THE ACQUISITION OF LAND FROM MEXICO.  (FN8) 

"THE COMMISSIONER OF THE UNITED STATES WAS AUTHORIZED TO AGREE TO THE
ESTABLISHMENT OF THE RIO GRANDE AS THE BOUNDARY, FROM ITS ENTRANCE INTO
THE GULF TO ITS INTERSECTION WITH THE SOUTHERN BOUNDARY OF NEW MEXICO,
IN NORTH LATITUDE ABOUT THIRTY-TWO DEGREES, AND TO OBTAIN A CESSION TO
THE UNITED STATES OF THE PROVINCES OF NEW MEXICO AND THE CALIFORNIAS,
AND THE PRIVILEGE OF THE RIGHT OF WAY ACROSS THE ISTHMUS OF
TEHUANTEPEC.  THE BOUNDARY OF THE RIO GRANDE, AND THE CESSION TO THE
UNITED STATES OF NEW MEXICO AND UPPER CALIFORNIA, CONSTITUTED AN
ULTIMATUM WHICH OUR COMMISSIONER WAS, UNDER NO CIRCUMSTANCES, TO
YIELD. 

"THAT IT MIGHT BE MANIFEST NOT ONLY TO MEXICO, BUT TO ALL OTHER
NATIONS, THAT THE UNITED STATES WERE NOT DISPOSED TO TAKE ADVANTAGE OF
A FEEBLE POWER, BY INSISTING UPON WRESTING FROM HER ALL THE OTHER
PROVINCES, INCLUDING MANY OF HER PRINCIPAL TOWNS AND CITIES, WHICH WE
HAD CONQUERED AND HELD IN OUR MILITARY OCCUPATION, BUT WERE WILLING TO
CONCLUDE A TREATY IN A SPIRIT OF LIBERALITY, OUR COMMISSIONER WAS
AUTHORIZED TO STIPULATE FOR THE RESTORATION TO MEXICO OF ALL OUR OTHER
CONQUESTS. 

"AS THE TERRITORY TO BE ACQUIRED BY THE BOUNDARY PROPOSED MIGHT BE
ESTIMATED TO BE OF GREATER VALUE THAN A FAIR EQUIVALENT FOR OUR JUST
DEMANDS, OUR COMMISSIONER WAS AUTHORIZED PECUNIARY CONSIDERATION AS WAS
DEEMED REASONABLE." 

AND WHEN THE TREATY HAD BEEN RATIFIED BY BOTH COUNTRIES AND PRESIDENT
POLK REPORTED TO CONGRESS, HE DID NOT SPEAK OF SETTLEMENT OF ANY
BOUNDARIES OF THE FORMER STATE OF TEXAS.  HE STATED, "THE EXTENSIVE AND
VALUABLE TERRITORIES CEDED BY MEXICO TO THE UNITED STATES CONSTITUTE
INDEMNITY FOR THE PAST."  (FN9)  AND HE EXPOUNDED ON THE VALUED
ADDITIONS OF NEW MEXICO AND UPPER CALIFORNIA TO OUR DOMAIN.  (FN10)
THERE IS NO MENTION OF ANY SETTLEMENT OF ANY CLAIM OF TEXAS TO A
SEAWARD BOUNDARY "THREE LEAGUES" OFF SHORE.  NOR IS THERE ANY REFERENCE
TO ANY BOUNDARY SETTLEMENT BASED ON OLD TEXAS CLAIMS.  THIS IS NOT
SURPRISING, FOR THE TREATY OF GUADALUPE HIDALGO WAS PART OF OUR EMPIRE
BUILDING, NOT THE DETERMINATION OF OLD BOUNDARIES. 

THE TREATY OF GUADALUPE HIDALGO HAS UNTIL NOW NEVER BEEN CONSIDERED
TO HAVE PLAYED ANY PART IN DETERMINING ANY TEXAN BOUNDARY QUESTION.  AS
STATED BY THE COURT IN UNITED STATES V. TEXAS, 162 U.S. 1, THE BOUNDARY
QUESTION WAS RESOLVED BY THE ACT OF SEPTEMBER 9, 1850 (9 STAT. 446). 
AFTER QUOTING THE 1836 ACT BY WHICH TEXAS CLAIMED "THREE LEAGUES FROM
LAND" AS HER SEAWARD BORDER, THE COURT WENT ON TO SAY: 

"THIS BOUNDARY HAD NOT BEEN DEFINED WHEN TEXAS WAS ADMITTED AS A
STATE INTO THE UNION, WITH THE TERRITORY 'PROPERLY INCLUDED WITHIN AND
RIGHTFULLY BELONGING TO THE REPUBLIC OF TEXAS.'  THE SETTLEMENT OF THAT
QUESTION, TOGETHER WITH CERTAIN CLAIMS MADE BY TEXAS AGAINST THE UNITED
STATES, WERE AMONG THE SUBJECTS THAT ENGAGED THE ATTENTION OF CONGRESS
DURING THE CONSIDERATION OF THE VARIOUS MEASURES CONSTITUTING THE
COMPROMISES OF 1850.  THE RESULT WAS THE PASSAGE OF THE ABOVE ACT OF
SEPTEMBER 9, 1850, C. 49, THE PROVISIONS OF WHICH WERE PROMPTLY
ACCEPTED BY THE STATE OF TEXAS.  THIS LEGISLATION OF THE TWO
GOVERNMENTS CONSTITUTED A CONVENTION OR CONTRACT IN RESPECT OF ALL
MATTERS EMBRACED BY IT.  THE SETTLEMENT OF 1850 FIXED THE BOUNDARY OF
TEXAS 'ON THE NORTH' TO COMMENCE AT THE POINT AT WHICH THE 100TH
MERIDIAN INTERSECTS THE PARALLEL OF 36 DEGREES 30 FEET NORTH LATITUDE,
AND FROM THAT POINT THE NORTHERN LINE RAN DUE WEST TO THE 103D
MERIDIAN, THENCE DUE SOUTH TO THE 32D DEGREE OF NORTH LATITUDE, THENCE
ON THAT PARALLEL TO THE RIO BRAVO DEL NORTE, AND THENCE WITH THE
CHANNEL OF THAT RIVER TO THE GULF OF MEXICO."  162 U.S., AT 39. 

DRAWING THE LINE "TO THE GULF OF MEXICO" IS A FAR CRY FROM DRAWING IT
TO A POINT "THREE LEAGUES" FROM THE SHORE.  WHAT WE DO TODAY IS QUITE
INCONSISTENT WITH WHAT A UNANIMOUS COURT IN UNITED STATES V. TEXAS,
SUPRA, DECIDED IN 1896.  WHAT THE COURT SAID WAS NOT DECIDED UNTIL 1850
WE NOW SAY WAS DECIDED EARLIER. 

THOUGH THE UNITED STATES AND MEXICO BY THE TREATY OF GUADALUPE
HIDALGO ESTABLISHED LAND BOUNDARIES BETWEEN THE TWO COUNTRIES, CONGRESS
NEVER RECOGNIZED THAT THE TREATY ESTABLISHED ANY BOUNDARIES OF TEXAS. 
IN HER 1836 STATUTE, TEXAS NOT ONLY CLAIMED THE THREE-LEAGUE BELT IN
THE GULF OF MEXICO BUT ALSO MUCH OF THE TERRITORY LYING WEST AND NORTH
OF HER PRESENT BOUNDARIES, INCLUDING EASTERN NEW MEXICO WHICH, LIKE THE
THREE-LEAGUE BELT, WAS ACQUIRED UNDER THE TREATY BY THE UNITED STATES. 
CONGRESS IN THE 1850 COMPROMISE PAID TEXAS $10,000,000 TO RELINQUISH
ITS CLAIM TO THIS TERRITORY.  YET THIS PAYMENT WAS REGARDED BY CONGRESS
NOT AS PURCHASE PRICE BUT AS SETTLEMENT OF A DISPUTED CLAIM.  (FN11)
ACCORDINGLY, IT WAS EARLY HELD THAT EASTERN NEW MEXICO, THOUGH CLAIMED
BY TEXAS, WAS NOT BROUGHT INTO THE UNION BY THE JOINT RESOLUTION OF
1845 AND THAT THE TREATY OF GUADALUPE HIDALGO DID NOT ESTABLISH WHAT
THE TEXAS BOUNDARIES HAD BEEN AT THE TIME OF ITS ANNEXATION.  DE BACA
V. UNITED STATES, 36 CT. CL. 407 (1901).  I CANNOT UNDERSTAND HOW THE
TREATY CAN BE SAID TO HAVE ESTABLISHED A SEAWARD BOUNDARY WHEN IT DID
NOT FIX THE INLAND BOUNDARIES OF TEXAS.  THE COURT DOES NOT SUGGEST
THAT ALL THE LAND CLAIMED BY TEXAS IN HER 1836 STATUTE AND SUBSEQUENTLY
CEDED TO THE UNITED STATES IN THE TREATY OF GUADALUPE HIDALGO WAS
"TERRITORY PROPERLY INCLUDED WITHIN, AND RIGHTFULLY BELONGING TO THE
REPUBLIC OF TEXAS" WITHIN THE MEANING OF THE JOINT RESOLUTION OF 1845. 
YET I CAN SEE NO BASIS FOR DECIDING THAT THE TREATY, THOUGH NOT
RECOGNIZING THE VALIDITY OF THE WESTERN BOUNDARY CLAIMS OF TEXAS, DID
ESTABLISH AND FIX OTHER TEXAS BOUNDARIES.  (FN12)  IF THE GOVERNMENT
WAS NOT NEGOTIATING ON BEHALF OF TEXAS IN ACQUIRING THE EASTERN NEW
MEXICO TERRITORY, HOW CAN IT BE SAID TO HAVE DONE SO WITH RESPECT TO
THE SEAWARD BOUNDARY CLAIM? 

THE SOUTHWESTERN BOUNDARY OF TEXAS WAS CONFIRMED IN THE 1850
COMPROMISE TO LIE ALONG THE RIO GRANDE "TO THE GULF OF MEXICO."  THE
1838 CONVENTION HAD FIXED THE EASTERN BOUNDARY AT "THE MOUTH OF THE
SABINE."  THUS, ON THE TWO OCCASIONS WHEN THE UNITED STATES AND TEXAS
NEGOTIATED AND AGREED UPON BOUNDARIES AND WHEN THEY WOULD HAVE BEEN
MOST LIKELY TO HAVE SETTLED THE QUESTION, NO EXTENSION OF THE TEXAS
TERRITORY INTO THE GULF WAS RECOGNIZED.  THE CONCLUSION FOR ME IS
IRRESISTABLE THAT THE SEAWARD BOUNDARY, SO FAR AS TEXAS WAS CONCERNED,
WAS SO INCONSEQUENTIAL AS TO REQUIRE OR RECEIVE NO SETTLEMENT.  I
CONCLUDE THAT IN TERMS OF SEC. 4 OF THE 1953 ACT THE BOUNDARY OF TEXAS
RESERVED FOR LATER ADJUDICATION WHEN TEXAS WAS ADMITTED TO THE UNION
WAS ON ITS SEAWARD SIDE NEVER APPROVED BY CONGRESS TO BE THREE LEAGUES
FROM SHORE. 

WHY THEN THE REFERENCE IN THE TREATY TO THE "BOUNDARY LINE" BETWEEN
THE UNITED STATES AND MEXICO AS "THREE LEAGUES" FROM LAND IN THE GULF
OF MEXICO? 

THE COURT SAYS THAT THE UNITED STATES IN NEGOTIATING THE TREATY
ATTEMPTED TO FOLLOW THE 1836 TEXAS ACT.  THE PROJET OF THE TREATY GIVEN
TO TRIST DID PROVIDE FOR A BOUNDARY LINE COMMENCING "THREE LEAGUES FROM
THE LAND OPPOSITE THE MOUTH OF THE RIO GRANDE."  (FN13)  BUT NEITHER IT
NOR THE ACCOMPANYING INSTRUCTIONS MADE ANY REFERENCE TO THE 1836 ACT OF
TEXAS.  TRIST WAS NOT TOLD TO TAKE THE 1836 ACT AS HIS GUIDE WHEN IT
CAME TO SEAWARD BOUNDARIES.  I CAN FIND NOTHING IN THE INSTRUCTIONS TO
TRIST WHICH RELATES HIS DUTIES IN NEGOTIATING THE TREATY TO WHAT TEXAS
HAD CLAIMED IN 1836, NOR DOES THE COURT REFER US TO ANY SUCH
INSTRUCTION.  TO BE SURE, TRIST'S PREDECESSOR, JOHN SLIDELL, HAD BEEN
ADVISED BY THE SECRETARY OF STATE, MR. BUCHANAN, IN A LETTER DATED
NOVEMBER 10, 1845, THAT "THE CONGRESS OF TEXAS, BY THE ACT OF DECEMBER
19, 1836, HAVE DECLARED THE RIO DEL NORTE (RIO GRANDE), FROM ITS MOUTH
TO ITS SOURCE, TO BE A BOUNDARY OF THAT REPUBLIC."  (FN14)  TRIST KNEW
OF THESE EARLIER INSTRUCTIONS.  (FN15)  YET IF HE FOLLOWED THEM
LITERALLY HE WOULD HAVE NEGOTIATED A BOUNDARY BEGINNING "AT THE MOUTH"
OF THE RIO GRANDE NOT "THREE LEAGUES FROM LAND OPPOSITE THE MOUTH." 
(FN16)  AND, AS I HAVE POINTED OUT, THE PURPOSE OF TRIST'S MISSION WAS
MUCH DIFFERENT FROM THAT OF SLIDELL'S.  SLIDELL WAS SENT TO MEXICO
BEFORE THE WAR TO SETTLE A BOUNDARY DISPUTE.  TRIST WENT TO OBTAIN THE
FRUITS OF OUR CONQUEST OF MEXICO.  THE COURT CONCEDES THAT SLIDELL'S
INSTRUCTIONS DEMONSTRATE "TOTAL INSENSITIVITY TO ANY PROBLEM OF A
SEAWARD BOUNDARY."  I AGREE.  BUT I CANNOT TAKE THE ADDITIONAL STEP
THAT, ALTHOUGH OUR STATE DEPARTMENT WAS WHOLLY INSENSITIVE TO THE
PROBLEM OF A SEAWARD BOUNDARY, IT WAS NONETHELESS TRYING TO STAND IN
THE SHOES OF TEXAS AND GET MEXICO TO VALIDATE THE OLD BOUNDARY CLAIMS
OF TEXAS.  SO FAR AS I CAN DEDUCE, THIS IS SHEER SPECULATION. 

MUCH LESS SPECULATIVE IS THE REASON ADVANCED IN 1875 BY HAMILTON
FISH, SECRETARY OF STATE. 

IN 1874 LORD DERBY HAD RAISED FOR GREAT BRITAIN A QUESTION WITH
REGARD TO SPAIN'S CLAIM OF JURISDICTION OF TWO LEAGUES FROM THE SPANISH
COAST.  (FN17)  HAMILTON FISH REPLIED ON JANUARY 22, 1875, AS FOLLOWS:
(FN18) 

"  ...  I HAVE THE HONOR TO INFORM YOU THAT THIS GOVERNMENT HAS
UNIFORMLY, UNDER EVERY ADMINISTRATION WHICH HAS HAD OCCASION TO
CONSIDER THE SUBJECT, OBJECTED TO THE PRETENSION OF SPAIN ADVERTED TO,
UPON THE SAME GROUND AND IN SIMILAR TERMS TO THOSE CONTAINED IN THE
INSTRUCTION OF THE EARL OF DERBY. 

"WE HAVE ALWAYS UNDERSTOOD AND ASSERTED THAT, PURSUANT TO PUBLIC LAW,
NO NATION CAN RIGHTFULLY CLAIM JURISDICTION AT SEA BEYOND A MARINE
LEAGUE FROM ITS COAST. 

"THIS OPINION ON OUR PART HAS SOMETIMES BEEN SAID TO BE INCONSISTENT
WITH THE FACTS THAT, BY THE LAWS OF THE UNITED STATES, REVENUE-CUTTERS
ARE AUTHORIZED TO BOARD VESSELS ANYWHERE WITHIN FOUR LEAGUES OF THEIR
COASTS, AND THAT BY THE TREATY OF GUADALUPE HIDALGO, SO CALLED, BETWEEN
THE UNITED STATES AND MEXICO, OF THE SECOND OF FEBRUARY, 1848, THE
BOUNDARY LINE BETWEEN THE DOMINIONS OF THE PARTIES BEGINS IN THE GULF
OF MEXICO, THREE LEAGUES FROM LAND. 

"IT IS BELIEVED, HOWEVER, THAT IN CARRYING INTO EFFECT THE AUTHORITY
CONFERRED BY THE ACT OF CONGRESS REFERRED TO, NO VESSEL IS BOARDED, IF
BOARDED AT ALL, EXCEPT SUCH A ONE AS, UPON BEING HAILED, MAY HAVE
ANSWERED THAT SHE WAS BOUND TO A PORT OF THE UNITED STATES.  AT ALL
EVENTS, ALTHOUGH THE ACT OF CONGRESS WAS PASSED IN THE INFANCY OF THIS
GOVERNMENT, THERE IS NO KNOWN INSTANCE OF ANY COMPLAINT ON THE PART OF
A FOREIGN GOVERNMENT OF THE TRESPASS BY A COMMANDER OF A REVENUE-CUTTER
UPON THE RIGHTS OF ITS FLAG UNDER THE LAW OF NATIONS. 

"IN RESPECT TO THE PROVISION IN THE TREATY WITH MEXICO, IT MAY BE
REMARKED THAT IT WAS PROBABLY SUGGESTED BY THE PASSAGE IN THE ACT OF
CONGRESS REFERRED TO, AND DESIGNED FOR THE SAME PURPOSE, THAT OF
PREVENTING SMUGGLING.  BY TURNING TO THE FILES OF YOUR LEGATION, YOU
WILL FIND THAT MR. BANKHEAD, IN A NOTE TO MR. BUCHANAN OF THE 30TH OF
APRIL, 1848, OBJECTED ON BEHALF OF HER MAJESTY'S GOVERNMENT, TO THE
PROVISION IN QUESTION.  MR. BUCHANAN, HOWEVER, REPLIED IN A NOTE OF THE
19TH OF AUGUST, IN THAT YEAR, THAT THE STIPULATION COULD ONLY AFFECT
THE RIGHTS OF MEXICO AND THE UNITED STATES, AND WAS NEVER INTENDED TO
TRENCH UPON THE RIGHTS OF GREAT BRITAIN, OR OF ANY OTHER POWER UNDER
THE LAW OF NATIONS." 

THE ACT REFERRED TO WAS THAT OF MARCH 2, 1799 (1 STAT. 627), WHICH
PROVIDED IN SEC. 54 THAT IT SHALL BE LAWFUL FOR OUR COLLECTORS, NAVAL
OFFICERS, INSPECTORS, AND OFFICERS OF REVENUE CUTTERS TO BOARD SHIPS
BOUND TO THE UNITED STATES "WITHIN FOUR LEAGUES OF THE COAST" FOR THE
PURPOSE OF CONTROLLING OR PREVENTING SMUGGLING.  (FN19) 

THAT THIS WAS THE PURPOSE GAINS COLLATERAL SUPPORT FROM A SERIES OF
TREATIES CONCLUDED BY MEXICO IN THE LATTER HALF OF THE NINETEENTH
CENTURY WITH CHINA, (FN20) THE DOMINICAN REPUBLIC, (FN21) EL SALVADOR,
(FN22) FRANCE, (FN23) GERMANY, (FN24) THE NETHERLANDS, (FN25) NORWAY
AND SWEDEN, (FN26) AND THE UNITED KINGDOM, (FN27) WHICH STATE THAT THE
"THREE LEAGUE" BELT (OR AT TIMES A BROADER ONE) WAS BEING USED FOR
CERTAIN LIMITED REASONS OF LAW ENFORCEMENT. 

THESE TREATIES REFLECT WHAT HAMILTON FISH AS SECRETARY OF STATE SAID
ABOUT THE TREATY OF GUADALUPE HIDALGO AND ITS "THREE LEAGUE"
PROVISION.  THEY SHOW A PRACTICE OF EXERCISING EXTRATERRITORIAL
REGULATION BEYOND THE USUAL THREE-MILE LIMIT WITH RESPECT TO CUSTOMS
AND SMUGGLING.  IT IS TRUE THAT THE TREATY OF GUADALUPE HIDALGO SPEAKS
IN TERMS OF "BOUNDARY."  BUT, IF IT MEANT "BOUNDARY" IN THE TECHNICAL
PROPERTY SENSE, IT WOULD MARK A LINE THAT SEPARATED THE TERRITORY OF
THE UNITED STATES AND MEXICO AND ESTABLISHED A TERRITORIAL CLAIM GOOD
AGAINST ALL COMERS.  OUR STATE DEPARTMENT FROM THE BEGINNING INSISTED
THAT WAS NOT INTENDED.  WHEN GREAT BRITAIN PROTESTED IN 1848 THAT THE
TREATY OF GUADALUPE HIDALGO DID NOT RESPECT THE THREE-MILE LIMIT WHICH
"IS ACKNOWLEDGED BY INTERNATIONAL LAW AND PRACTICE AS THE EXTENT OF
TERRITORIAL JURISDICTION OVER THE SEA THAT WASHES THE COASTS OF
STATES," SECRETARY OF STATE BUCHANAN'S ANSWER (WHICH, AS WE HAVE NOTED,
HAMILTON FISH REFERRED TO IN HIS COMMUNICATION OF JANUARY 22, 1875) WAS
AS FOLLOWS:  (FN28)    "IN ANSWER I HAVE TO STATE, THAT THE STIPULATION
IN THE TREATY CAN ONLY AFFECT THE RIGHTS OF MEXICO AND THE UNITED
STATES.  IF FOR THEIR MUTUAL CONVENIENCE IT HAS BEEN DEEMED PROPER TO
ENTER INTO SUCH AN ARRANGEMENT, THIRD PARTIES CAN HAVE NO JUST CAUSE OF
COMPLAINT.  THE GOVERNMENT OF THE UNITED STATES NEVER INTENDED BY THIS
STIPULATION TO QUESTION THE RIGHTS WHICH GREAT BRITAIN OR ANY OTHER
POWER MAY POSSESS UNDER THE LAW OF NATIONS." 

THAT HAS CONSISTENTLY BEEN OUR CONSTRUCTION.  I HAVE ALREADY REFERRED
TO WHAT SECRETARY FISH SAID IN 1875.  WHEN MEXICO IN 1935 UNDERTOOK TO
EXTEND THE BREADTH OF MEXICAN TERRITORIAL WATERS FROM THREE TO NINE
MILES, (FN29) OUR AMBASSADOR JOSEPHUS DANIELS ON INSTRUCTIONS FROM THE
STATE DEPARTMENT PROTESTED, RESERVING "ALL RIGHTS OF WHATEVER NATURE SO
FAR AS CONCERNS ANY EFFECTS UPON AMERICAN COMMERCE FROM ENFORCEMENT OF
THIS LEGISLATION."  (FN30)  AND WHEN MEXICO IN REPLY (FN31) REFERRED TO
THE TREATY OF GUADALUPE HIDALGO AS JUSTIFYING HER CLAIM TO NINE MILES,
THE STATE DEPARTMENT REITERATED AMONG OTHER THINGS OUR CONSISTENT
POSITION THAT THE TREATY PROVISION EXTENDING THE "BOUNDARY" INTO THE
GULF FOR THREE LEAGUES WAS INCLUDED TO GIVE THE TWO NATIONS
JURISDICTION TO THAT DISTANCE AT THAT PARTICULAR POINT "TO PREVENT
SMUGGLING."  (FN32) 

IT SEEMS APPARENT FROM THIS HISTORY THAT THE UNITED STATES IN
NEGOTIATING THE TREATY OF GUADALUPE HIDALGO WAS FAR FROM DETERMINING
THAT THE METES AND BOUNDS OF OUR PROPERTY ON THE SEAWARD SIDE OF THE
GULF RAN TO THREE LEAGUES.  THE THREE-LEAGUE PROVISION IN PURPOSE AND
PRESUMED EFFECT HAD QUITE A DIFFERENT AIM.  IT HAD NO AIM TO ASSERT
DERIVATIVELY A TITLE THAT TEXAS HAD CLAIMED.  ITS AIM WAS MERELY TO
MARK A ZONE WHERE, SO FAR AS THE TWO CONTRACTING PARTIES WERE
CONCERNED, OUR LAW ENFORCEMENT AGENCIES COULD MAINTAIN EFFECTIVE
PATROLS.  IF THIS HISTORY SHOWS NOTHING ELSE, IT SHOWS THAT THE UNITED
STATES HAD A NATIONAL INTEREST IN HAVING THE THREE-LEAGUE BELT
RECOGNIZED FOR ITS OWN PURPOSES, WHEREAS TEXAS UP TO THE TIME OIL WAS
DISCOVERED OFFSHORE PLACED NO VALUE WHATSOEVER ON A SEAWARD BOUNDARY. 
FOR ME THE ARGUMENT BECOMES TOO THIN TO SAY THAT THE UNITED STATES,
THOUGH NOMINALLY NEGOTIATING ON HER OWN BEHALF, WAS CLAIMING THE THREE
LEAGUE MARITIME BELT ON BEHALF OF TEXAS. 

IF WE ACTED TODAY WITH THE PRECISION AND METICULOUS CARE WHICH IS
DEMANDED IN TITLE DISPUTES, WE COULD NOT, I THINK, SAY THAT THE UNITED
STATES IN THE TREATY OF GUADALUPE HIDALGO RECOGNIZED OR APPROVED THE
TEXAS CLAIM THAT THE TERRITORY OF TEXAS EXTENDED THREE LEAGUES FROM
SHORE. 

YET IF WE ARE TO DECIDE THESE CASES BY SUBSTANDARDS (LESSENING THE
REQUIREMENTS OF PROOF AS WE SHOULD DO IF CONGRESS INTENDED TO GRANT
WHATEVER THE PARTIES FAIRLY CLAIMED), THEN I AGREE WITH MR. JUSTICE
BLACK THAT THE DISCRIMINATION IN FAVOR OF TEXAS AND AGAINST LOUISIANA,
ALABAMA, AND MISSISSIPPI IS QUITE UNJUSTIFIED. 

IF THE SOUTHEAST CORNER OF TEXAS WAS THREE LEAGUES OFFSHORE, IT IS
DIFFICULT FOR ME TO SEE HOW THE SOUTHWEST CORNER OF LOUISIANA WAS NOT
AT THE SAME POINT.  FROM THE BEGINNING THE UNITED STATES AND SPAIN
FIXED THEIR CORNER WEST OF THE MISSISSIPPI "ON THE GULPH OF MEXICO, AT
THE MOUTH OF THE RIVER SABINE, IN THE SEA."  8 STAT. 254.  IF WE MOVE
THE TEXAS BOUNDARY OUT THREE LEAGUES, IT IS HARD TO SEE WHY LOUISIANA'S
DOES NOT ACCOMPANY IT.  IT HAS LONG BEEN RECOGNIZED THAT A PART OF
LOUISIANA'S BORDER IS "A WATER BOUNDARY" THAT EXTENDS "TO THE OPEN SEA
OR GULF OF MEXICO," LOUISIANA V. MISSISSIPPI, 202 U.S. 1, 43, AND
INCLUDES "THE DEEP WATER SAILING CHANNEL LINE AS A BOUNDARY."  ID., AT
44. 

THE ENABLING ACT AUTHORIZING THE PEOPLE OF THE TERRITORY OF ORLEANS
TO FORM LOUISIANA DESCRIBED THE TERRITORY AS RUNNING "TO THE GULF OF
MEXICO; THENCE BOUNDED BY THE SAID GULF  ...  INCLUDING ALL ISLANDS
WITHIN THREE LEAGUES OF THE COAST."  2 STAT. 641.  THE BOUNDARIES
DESCRIBED IN THE ACT ADMITTING LOUISIANA TO THE UNION ARE SIMILARLY
DESCRIBED AS "TO THE GULF OF MEXICO  ...  THENCE BOUNDED BY THE SAID
GULF  ...  INCLUDING ALL ISLANDS WITHIN THREE LEAGUES OF THE COAST."  2
STAT. 701, 702. 

AS RESPECTS MISSISSIPPI, CONGRESS IN THE ENABLING ACT (3 STAT. 348)
PROVIDED THAT THE TERRITORY INCLUDED IN THE NEW STATE WOULD RUN FROM A
SPECIFIED POINT ON THE GULF OF MEXICO, "WESTWARDLY, INCLUDING ALL THE
ISLANDS WITHIN SIX LEAGUES OF THE SHORE."  THIS WAS THE BOUNDARY
DESCRIPTION USED SINCE GEORGE III OF GREAT BRITAIN DESCRIBED WEST
FLORIDA AS "BOUNDED TO THE SOUTHWARD BY THE GULF OF MEXICO, INCLUDING
ALL ISLANDS WITHIN SIX LEAGUES OF THE COAST."  (FN33) 

ALABAMA WHEN A TERRITORY HAD TWO OF ITS BOUNDARIES DESCRIBED AS
"THENCE DUE SOUTH TO THE GULF OF MEXICO, THENCE EASTWARDLY, INCLUDING
ALL THE ISLANDS WITHIN SIX LEAGUES OF THE SHORE, TO THE PERDIDO
RIVER."  3 STAT. 371.  THIS LANGUAGE WAS REPEATED IN THE ENABLING ACT. 
3 STAT. 489. 

THE UNITED STATES CONCEDES THAT, SO FAR AS LOUISIANA, MISSISSIPPI AND
ALABAMA ARE CONCERNED, ALL THE SUBMERGED LANDS BETWEEN THE MAINLAND AND
THE ISLANDS ARE SUFFICIENTLY ENCLOSED TO CONSTITUTE INLAND WATERS THAT
PASSED TO THE STATE ON ITS ENTRY INTO THE UNION.  POLLARD V. HAGAN, 3
HOW.  212.  IT FURTHER CONCEDES THAT THESE STATES HAVE RIGHTS TO THE
SUBMERGED LANDS WITH THREE MILES OF THE ISLANDS UNDER THE ORDINARY
THREE-MILE RULE. 

IF WE WERE TO REQUIRE THE DEGREE OF PROOF OF OWNERSHIP WHICH IS
ORDINARILY REQUIRED IN TITLE DISPUTES, I WOULD AGREE THAT NEITHER
LOUISIANA, ALABAMA, NOR MISSISSIPPI HAS MET THE BURDEN OF PROOF.  BUT
IF STANDARDS AND REQUIREMENTS AS LAX AS THOSE USED TO GRANT TEXAS THREE
LEAGUES FROM SHORE ARE SUFFICIENT FOR HER, THEY SHOULD BE SUFFICIENT
FOR THESE OTHER THREE STATES. 

THE HEART OF THE TEXAN CLAIM IS THAT THE UNITED STATES AND MEXICO
RECOGNIZED THAT THERE WAS A THREE-LEAGUE MARITIME BELT WHICH EACH WOULD
RESPECT AND THAT THIS WAS DONE IN RECOGNITION OF THE VALIDITY OF THE
CLAIMS CONTAINED IN THE 1836 STATUTE OF TEXAS.  THIS BELT WAS CALLED A
"BOUNDARY"; BUT, AS I HAVE TRIED TO DEMONSTRATE, IT WAS NOT A
TERRITORIAL CLAIM BUT ONLY A DEMARCATION OF ZONES WHERE THE PARTIES'
RESPECTIVE LAW ENFORCEMENT ACTIVITIES WOULD BE RECOGNIZED AND
APPROVED.  THE GULF PRESENTS PECULIAR PROBLEMS DUE TO ITS SHALLOW
COAST.  THE SHALLOWNESS OF ITS WATERS IS WELL DOCUMENTED AND OUR
GOVERNMENT WAS WELL AWARE OF THIS CONDITION IN 1848.  (FN34)  THESE ARE
THE PERSUASIVE FACTS BEHIND THE CREATION OF THE THREE-LEAGUE BELT BY
THE TREATY OF GUADALUPE HIDALGO AND BY MEXICO IN THE OTHER TREATIES
CONCERNING THE GULF WHICH SHE NEGOTIATED WITH OTHER NATIONS. 

IF THE POLICY OF MEASURING THE ZONE OF THE UNITED STATES AS "THREE
LEAGUES" INTO THE GULF OFF THE SHORE OF TEXAS IS TO GIVE TEXAS PROPERTY
RIGHTS TO THE SUBMERGED LANDS IN THAT ZONE, THE BENEFICIARIES OF THAT
CONCERN SHOULD BE ALL OUR GULF STATES.  AT BEST THE LANGUAGE USED TO
DESCRIBE THE SEAWARD TERRITORIES OF LOUISIANA, ALABAMA, AND MISSISSIPPI
IS AMBIGUOUS.  THE WORDS "TO THE GULF OF MEXICO  ...  INCLUDING ALL OF
THE ISLANDS" WITHIN CERTAIN DESIGNATED LEAGUES OF THE SHORE CAN
REASONABLY MEAN THAT THE "BOUNDARY LINE" IS MARKED BY THE ISLANDS. 
THERE IS DIFFICULTY IN THAT CONSTRUCTION.  YET IT IS FOR ME NO MORE
DIFFICULT THAN THE METHOD WE USE TO GIVE TEXAS A TERRITORIAL CLAIM IN
THE SAME BELT.  ALL THE STATES ON THE GULF SHOULD BE GIVEN THE SAME
BENEFIT OF THE DOUBTS THAT HAVE BEEN RESOLVED IN FAVOR OF TEXAS.  THE
CLAIM OF FLORIDA, AS SHOWN IN UNITED STATES V. FLORIDA, DECIDED THIS
DAY, POST, P. 121, IS FULLY ESTABLISHED BY THE STANDARD I WOULD ASK
TEXAS TO MEET.  IF WE ARE TO RELAX THE STANDARD OF PROOF FOR THE
BENEFIT OF TEXAS, WE SHOULD DO SO FOR ALL THESE CLAIMANTS.  IN THAT
POSTURE, THE CLAIMS OF EACH OF THE OTHER GULF STATES WHICH HAVE GONE
"LONG-UNCHALLENGED," AS SHOWN BY MR. JUSTICE BLACK, ARE AS CLEAR AS
THOSE OF TEXAS. 

FN1  THE JOURNAL OF THE JOINT COMMISSION UNDER DATE OF MAY 21, 1840,
STATES: 

"  ...  WE PROCEEDED TO THE ENTRANCE OF THE SABINE RIVER INTO THE
GULF OF MEXICO, AND THEN, IN VIRTUE OF OUR RESPECTIVE POWERS, AND IN
CONFORMITY TO THE PROVISIONS OF THE CONVENTION BETWEEN THE TWO
COUNTRIES CONCLUDED AT WASHINGTON THE 25TH DAY OF APRIL, 1838, WE
ESTABLISHED THE POINT OF BEGINNING OF THE BOUNDARY BETWEEN THE UNITED
STATES AND THE REPUBLIC OF TEXAS AT A MOUND ON THE WESTERN BANK OF THE
JUNCTION OF THE RIVER SABINE WITH THE SEA  ...  .  THE MOUND WAS MADE
BY THROWING UP EARTH IN A CIRCULAR FORM OF FIFTY FEET IN DIAMETER, AND
ABOUT SEVEN FEET HIGH AT ITS CENTRE  ...  ."  S. DOC. NO. 199, 27TH
CONG., 2D SESS. 59. 

FN2  S. EXEC. DOC. NO. 52, 30TH CONG., 1ST SESS. 83. 

FN3  ID., AT 82. 

FN4  HIS FIRST CONFERENCE ON JANUARY 2, 1848, WAS DESCRIBED IN HIS
OWN WORDS AS FOLLOWS: 

"PRESIDENT'S MESSAGE REFERRED TO BY THE MEXICAN COMMISSIONERS AS
FOUNDING OUR CLAIM FOR EXTENSION OF TERRITORY ON THE GROUND OF
INDEMNITY FOR THE EXPENSES OF THE WAR.  THE CAUSES OF THE WAR, & THE
QUESTION OF JUSTICE IN RESPECT THERETO, VIEWED BY MEXICO IN A TOTALLY
DIFFERENT LIGHT FROM THAT IN WHICH THEY ARE PRESENTED IN THE MESSAGE. 
THEY PROPOSE ARBITRATION AS THE FIRST MODE OF SETTLING THIS QUESTION
AND OF DETERMINING THE MEASURE OF INDEMNITY JUSTLY DUE TO THE U. STATES
...  ."  PAPERS OF NICHOLAS P. TRIST (LIBRARY CONG. 1917), VOL. 27,
FOL.  61009. 

FN5  H.R. EXEC. DOC. NO. 8, 30TH CONG., 1ST SESS. 3. 

FN6  ID., AT 8. 

FN7  IBID. 

FN8  ID., AT 8-9. 

FN9  PRESIDENT'S MESSAGE TO CONGRESS, JULY 6, 1848, S. EXEC. DOC. NO.
60, 30TH CONG., 1ST SESS. 1. 

FN10  ID., AT 2. 

FN11  SEE MESSAGE OF PRESIDENT FILLMORE TO CONGRESS, AUG. 6, 1850,
CONG. GLOBE, 31ST CONG., 1ST SESS. 1525-1526; LETTER FROM DANIEL
WEBSTER, SECRETARY OF STATE, TO P.H. BELL, GOVERNOR OF TEXAS, AUG. 5,
1850, ID., AT 1526-1527; REMARKS OF SENATOR PEARCE, SPONSOR OF THE
BILL, ID., AT 1540-1542. 

FN12  THE COURT SUGGESTS, ANTE, NOTE 100, THAT WHILE THE UNITED
STATES PRESSED TEXAS' CLAIM TO THE THREE-LEAGUE BELT, TEXAS' CLAIM TO
EASTERN NEW MEXICO "OBVIOUSLY WAS NOT PRESSED AGAINST MEXICO ON TEXAS'
BEHALF."  YET THE EVIDENCE RELIED UPON BY THE COURT IN FINDING THAT THE
UNITED STATES PRESSED THE TEXAS CLAIM TO A THREE-LEAGUE BELT SUPPORTS
NO SUCH DISTINCTION.  THE STATEMENT OF PRESIDENT POLK TO CONGRESS (H.R.
EXEC. DOC. NO. 60, 30TH CONG., 1ST SESS. 4, 7) SAID, "THE CONGRESS OF
TEXAS, BY ITS ACT OF DECEMBER 19, 1836, HAD DECLARED THE RIO DEL NORTE
TO BE THE BOUNDARY OF THAT REPUBLIC."  THE INSTRUCTIONS TO JOHN SLIDELL
(S. EXEC. DOC. NO. 52, 30TH CONG., 1ST SESS. 75) READ, "THE CONGRESS OF
TEXAS, BY THE ACT OF DECEMBER 19, 1836, HAVE DECLARED THE RIO DEL
NORTE, FROM ITS MOUTH TO ITS SOURCE, TO BE A BOUNDARY OF THAT
REPUBLIC."  THE COURT RELIES ON THIS EVIDENCE IN FINDING THAT THE
UNITED STATES WAS CONFIRMING THE CLAIMS IN THE TEXAS ACT OF 1836,
INSOFAR AS IT RELATED TO A SEAWARD BOUNDARY BUT NOT INSOFAR AS THE ACT
CLAIMED OWNERSHIP OF ALL LAND LYING EAST OF THE RIO GRANDE.  SINCE
THESE COMMUNICATIONS EXPRESSLY REFERRED TO THE TEXAS CLAIM TO THE
TERRITORY EAST OF THE RIO GRANDE, FROM ITS MOUTH TO ITS SOURCE, WHICH
INCLUDED EASTERN NEW MEXICO, WHEREAS THEY WERE WHOLLY SILENT ON ANY
CLAIM TO A SEAWARD TERRITORY, THE COURT'S CONCLUSION THAT THE SEAWARD
CLAIM WAS PRESSED AND APPROVED WHILE SOME TERRITORIAL CLAIMS WERE NOT,
SEEMS FANCIFUL TO ME. 

FN13  S. EXEC. DOC. NO. 52, 30TH CONG., 1ST SESS. 86. 

FN14  ID., AT 75. 

FN15  PAPERS OF NICHOLAS P. TRIST (LIBRARY OF CONGRESS 1917), VOL.
33, FOL.  62071. 

FN16  THESE INSTRUCTIONS AUTHORIZED SLIDELL "TO PAY FIVE MILLIONS OF
DOLLARS IN CASE THE MEXICAN GOVERNMENT SHALL AGREE TO ESTABLISH THE
BOUNDARY BETWEEN THE TWO COUNTRIES FROM THE MOUTH OF THE RIO GRANDE, UP
THE PRINCIPAL STREAM TO THE POINT WHERE IT TOUCHES THE LINE OF NEW
MEXICO; THENCE WEST OF THE RIVER ALONG THE EXTERIOR LINE OF THAT
PROVINCE, AND SO AS TO INCLUDE THE WHOLE WITHIN THE UNITED STATES  ...
."  S. EXEC. DOC. NO. 52, 30TH CONG., 1ST SESS. 78. 

FN17  H.R. EXEC. DOC. NO. 1, PT. 1, 44TH CONG., 1ST SESS. 641. 

FN18  ID., AT 649-650. 

FN19  CHIEF JUSTICE MARSHALL WRITING FOR THE COURT IN CHURCH V.
HUBBART, 2 CRANCH 187, 235, SAID: 

"IN DIFFERENT SEAS AND ON DIFFERENT COASTS, A WIDER OR MORE
CONTRACTED RANGE, IN WHICH TO EXERCISE THE VIGILANCE OF THE GOVERNMENT,
WILL BE ASSENTED TO.  THUS IN THE CHANNEL, WHERE A VERY GREAT PART OF
THE COMMERCE TO AND FROM ALL THE NORTH OF EUROPE, PASSES THROUGH A VERY
NARROW SEA, THE SEIZURE OF VESSELS ON SUSPICION OF ATTEMPTING AN
ILLICIT TRADE, MUST NECESSARILY BE RESTRICTED TO VERY NARROW LIMITS,
BUT ON THE COAST OF SOUTH AMERICA, SELDOM FREQUENTED BY VESSELS BUT FOR
THE PURPOSE OF ILLICIT TRADE, THE VIGILANCE OF THE GOVERNMENT MAY BE
EXTENDED SOMEWHAT FURTHER; AND FOREIGN NATIONS SUBMIT TO SUCH
REGULATIONS AS ARE REASONABLE IN THEMSELVES, AND ARE REALLY NECESSARY
TO SECURE THAT MONOPOLY OF COLONIAL COMMERCE, WHICH IS CLAIMED BY ALL
NATIONS HOLDING DISTANT POSSESSIONS." 

FN20  "ARTICLE XI.  ...  THE TWO CONTRACTING PARTIES AGREE UPON
CONSIDERING A DISTANCE OF THREE MARINE LEAGUES, MEASURED FROM THE LINE
OF LOW TIDE, AS THE LIMIT OF THEIR TERRITORIAL WATERS FOR EVERYTHING
RELATING TO THE VIGILANCE AND ENFORCEMENT OF THE CUSTOMS-HOUSE
REGULATIONS AND THE NECESSARY MEASURES FOR THE PREVENTION OF
SMUGGLING."  1 LAWS AND REGULATIONS ON THE REGIME OF THE HIGH SEAS
(UNITED NATIONS LEGISLATIVE SERIES) 147. 

FN21  "ARTICLE 15.  IN ALL THAT CONCERNS THE POLICE REGULATIONS OF
THE PORTS, THE LOADING AND DISCHARGING OF SHIPS, AND THE CUSTODY OF THE
MERCHANDISE AND EFFECTS, THE SUBJECTS OF THE TWO POWERS SHALL BE
SUBJECT TO THE LOCAL LAWS AND ORDINANCES. 

"WITH RESPECT TO MEXICAN PORTS, UNDER THIS TITLE ARE COMPREHENDED THE
LAWS AND ORDINANCES PROMULGATED, OR THAT MAY BE PROMULGATED IN THE
FUTURE, BY THE FEDERAL GOVERNMENT, AS ALSO THE DISPOSITIONS OF THE
LOCAL AUTHORITIES WITHIN THE LIMITS OF THE SANITARY POLICE.    "THE
CONTRACTING PARTIES AGREE TO CONSIDER AS THE LIMIT OF THE TERRITORIAL
JURISDICTION ON THEIR RESPECTIVE COASTS THE DISTANCE OF TWENTY
KILOMETRES, COUNTED FROM THE LINE OF LOWEST TIDE.  NEVERTHELESS, THIS
RULE SHALL ONLY BE APPLIED FOR THE CARRYING OUT OF THE CUSTOM-HOUSE
INSPECTION, THE OBSERVANCE OF THE CUSTOM-HOUSE REGULATIONS, AND THE
PREVENTION OF SMUGGLING; BUT ON NO ACCOUNT SHALL IT APPLY TO THE OTHER
QUESTIONS OF INTERNATIONAL MARITIME LAW. 

"IT IS EQUALLY UNDERSTOOD THAT EACH ONE OF THE CONTRACTING PARTIES
SHALL NOT APPLY THE SAID EXTENSION OF THE LIMIT OF JURISDICTION TO THE
SHIPS OF THE OTHER CONTRACTING PARTY, EXCEPT WHEN THIS CONTRACTING
POWER PROCEEDS IN THE SAME MANNER WITH THE SHIPS OF THE OTHER NATIONS
WITH WHICH IT HAS TREATIES OF COMMERCE AND NAVIGATION."  ID., AT 153,
154. 

FN22  "ARTICLE XXI.  IT IS AGREED BETWEEN THE HIGH CONTRACTING
PARTIES THAT THE LIMIT OF SOVEREIGNTY IN THE TERRITORIAL WATERS
ADJACENT TO THEIR RESPECTIVE COASTS COMPRISES A DISTANCE OF TWENTY
KILOMETRES, COUNTED FROM THE LINE OF LOWEST TIDE:  BUT THIS RULE SHALL
APPLY ONLY AS REGARDS THE EXERCISE OF THE RIGHT OF POLICE, FOR THE
EXECUTION OF CUSTOMS ORDINANCES AND THE PREVENTION OF SMUGGLING, AND IN
RESPECT OF MATTERS CONCERNING THE SECURITY OF THE COUNTRY.  IN NO CASE
SHALL SUCH LIMIT BE APPLICABLE TO OTHER QUESTIONS OF INTERNATIONAL
MARITIME LAW."  ID., AT 156. 

FN23  "ARTICLE 15.  ...  THE CONTRACTING PARTIES AGREE TO CONSIDER AS
THE LIMIT OF TERRITORIAL SOVEREIGNTY ON THEIR RESPECTIVE COASTS A
DISTANCE OF TWENTY KILOMETRES FROM THE LINE OF LOWEST TIDE. 

"AT ALL TIMES THIS RULE SHALL BE APPLICABLE ONLY FOR EXERCISING
CUSTOMS CONTROL, FOR EXECUTING CUSTOMS ORDINANCES, AND FOR THE
REGULATIONS AGAINST CONTRABAND, AND SHALL NEVER BE APPLIED, ON THE
OTHER HAND, IN ALL OTHER QUESTIONS OF INTERNATIONAL MARITIME LAW.  IT
IS LIKEWISE UNDERSTOOD THAT EACH OF THE CONTRACTING PARTIES WILL APPLY
SAID EXTENT OF THE LIMIT OF SOVEREIGNTY TO THE VESSELS OF THE OTHER
CONTRACTING PARTY ONLY PROVIDED THAT SAID CONTRACTING PARTY ACTS
LIKEWISE TOWARD VESSELS OF OTHER NATIONS WITH WHICH IT HAS MADE
TREATIES OF COMMERCE AND NAVIGATION."  ID., AT 169, 170. 

FN24  "ARTICLE VIII.  ...  THE TWO CONTRACTING PARTIES AGREE TO
CONSIDER AS THE LIMIT OF MARITIME JURISDICTION ON THEIR COASTS, THE
DISTANCE OF THREE SEA LEAGUES, RECKONED FROM LOW-WATER MARK. 
NEVERTHELESS, THIS STIPULATION SHALL NOT HAVE EFFECT EXCEPT AS REGARDS
THE COASTGUARD AND CUSTOM-HOUSE SERVICE, AND THE MEASURES FOR
PREVENTING CONTRABAND TRADE.  AS REGARDS ALL OTHER QUESTIONS OF
INTERNATIONAL LAW IT SHALL HAVE NO APPLICATION.  IT IS, HOWEVER, TO BE
UNDERSTOOD THAT THE AFORESAID EXTENSION OF MARITIME JURISDICTION SHALL
NOT BE MADE APPLICABLE BY ONE OF THE CONTRACTING PARTIES AS AGAINST THE
VESSELS OF THE OTHER, UNLESS THAT PARTY SHALL TREAT IN THE SAME MANNER
THE VESSELS OF ALL OTHER NATIONS WITH WHICH IT MAY HAVE TREATIES OF
COMMERCE AND NAVIGATION."   ID., AT 170. 

FN25  "ARTICLE 6.  THE HIGH CONTRACTING PARTIES AGREE TO CONSIDER, AS
A LIMIT OF THEIR TERRITORIAL WATERS ON THEIR RESPECTIVE COASTS, THE
DISTANCE OF TWENTY KILOMETRES RECKONED FROM THE LINE OF LOW-WATER
MARK.  NEVERTHELESS THIS STIPULATION SHALL HAVE NO EFFECT, EXCEPT IN
WHAT MAY RELATE TO THE OBSERVANCE AND APPLICATION OF THE CUSTOM-HOUSE
REGULATIONS AND THE MEASURES FOR PREVENTING SMUGGLING, AND CAN IN NO
WAY BE EXTENDED TO OTHER QUESTIONS OF INTERNATIONAL MARITIME LAW." 
ID., AT 171. 

FN26  "ARTICLE VII.  ...  THE TWO CONTRACTING PARTIES AGREE TO
CONSIDER AS THE LIMIT OF TERRITORIAL SEAS ON THEIR RESPECTIVE COASTS
FOR THE PURPOSE OF APPLYING CUSTOMS REGULATIONS AND MEASURES NECESSARY
FOR THE PREVENTION OF SMUGGLING, THE DISTANCE OF THREE MARINE LEAGUES
RECKONED FROM LOW-WATER MARK.  IT IS UNDERSTOOD, HOWEVER, THAT WITH
RESPECT TO OTHER QUESTIONS OF INTERNATIONAL MARITIME LAW, THIS
EXTENSION OF TERRITORIAL SEAS SHALL NOT BE APPLIED BY ONE OF THE
CONTRACTING PARTIES TO THE VESSELS OF THE OTHER, UNLESS THAT PARTY
SHALL APPLY IT EQUALLY TO VESSELS OF OTHER NATIONS WITH WHICH SHE HAS
CONCLUDED TREATIES OF COMMERCE AND NAVIGATION."  ID., AT 171-172. 

FN27  "ARTICLE IV.  ...  THE TWO CONTRACTING PARTIES AGREE TO
CONSIDER AS A LIMIT OF THEIR TERRITORIAL WATERS ON THEIR RESPECTIVE
COASTS, THE DISTANCE OF THREE MARINE LEAGUES, RECKONED FROM THE LINE OF
LOW-WATER MARK.  NEVERTHELESS, THIS STIPULATION SHALL HAVE NO EFFECT,
EXCEPTING IN WHAT MAY RELATE TO THE OBSERVANCE AND APPLICATION OF THE
CUSTOM-HOUSE REGULATIONS AND THE MEASURES FOR PREVENTING SMUGGLING, AND
CANNOT BE EXTENDED TO OTHER QUESTIONS OF CIVIL OR CRIMINAL
JURISDICTION, OR OF INTERNATIONAL MARITIME LAW."  ID., AT 172. 

FN28  1 MOORE, DIGEST OF INTERNATIONAL LAW (1906), 730. 

FN29  1 HACKWORTH, DIGEST OF INTERNATIONAL LAW (1940), 639. 

FN30  99 CONG. REC. 3623. 

FN31  IBID. 

FN32  ID., AT 3624. 

FN33  AMERICAN STATE PAPERS, 5 PUBLIC LANDS 756.  BOTH EAST AND WEST
FLORIDA WERE CEDED TO THE UNITED STATES BY SPAIN IN 1819.  8 STAT. 252,
254. 

FN34  SEE 7 BRITISH AND FOREIGN STATE PAPERS 984; 9 BRITISH AND
FOREIGN STATE PAPERS 828-829; 18 BRITISH AND FOREIGN STATE PAPERS
1403. 
..END :















UNITED STATES V. FLORIDA 363 U.S. 121 


NO. 10, ORIGINAL.  ARGUED OCTOBER 12-15, 1959.  - DECIDED MAY 31, 1960. 


IN THIS SUIT BY THE UNITED STATES UNDER ART. III, SEC. 2 OF THE
CONSTITUTION, HELD:  THE SUBMERGED LANDS ACT GRANTS FLORIDA A THREE
MARINE-LEAGUE BELT OF LAND UNDER THE GULF OF MEXICO, SEAWARD FROM ITS
COASTLINE, AS DESCRIBED IN FLORIDA'S 1868 CONSTITUTION, WHICH WAS
APPROVED BY CONGRESS WHEN FLORIDA WAS READMITTED TO REPRESENTATION IN
CONGRESS AFTER THE CIVIL WAR.  PP. 121-129. 

UNITED STATES V. FLORIDA ET AL. 

ON MOTION FOR JUDGMENT ON THE PLEADINGS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY INVOLVES THE INTERESTS OF ALL FIVE GULF STATES -
FLORIDA, TEXAS, LOUISIANA, MISSISSIPPI AND ALABAMA - IN THE SUBMERGED
LANDS OFF THEIR SHORES.  THE COURT HEARD THE CLAIMS TOGETHER, BUT
TREATS THEM IN TWO OPINIONS.  THIS OPINION DEALS SOLELY WITH FLORIDA'S
CLAIMS.  THE RESULT AS TO THE OTHER STATES IS DISCUSSED IN ONE OPINION,
ANTE, P. 1.  ALL THE CLAIMS ARISE AND ARE DECIDED UNDER THE SUBMERGED
LANDS ACT OF 1953.  (FN1) 

THE ACT GRANTED TO ALL COASTAL STATES THE LANDS AND RESOURCES UNDER
NAVIGABLE WATERS EXTENDING THREE GEOGRAPHICAL MILES SEAWARD FROM THEIR
COASTLINES.  IN ADDITION TO THE THREE MILES, THE FIVE GULF STATES WERE
GRANTED THE SUBMERGED LANDS AS FAR OUT AS EACH STATE'S BOUNDARY LINE
EITHER "AS IT EXISTED AT THE TIME SUCH STATE BECAME A MEMBER OF THE
UNION," OR AS PREVIOUSLY "APPROVED BY CONGRESS," EVEN THOUGH THAT
BOUNDARY EXTENDED FURTHER THAN THREE GEOGRAPHICAL MILES SEAWARD.  BUT
IN NO EVENT WAS ANY STATE TO HAVE "MORE THAN THREE MARINE LEAGUES INTO
THE GULF OF MEXICO."  (FN2) THIS SUIT WAS FIRST BROUGHT AGAINST
LOUISIANA BY THE UNITED STATES, UNITED STATES V. LOUISIANA, 350 U.S.
990, INVOKING OUR ORIGINAL JURISDICTION UNDER ART. III, SEC. 2, CL. 2,
OF THE CONSTITUTION, TO DETERMINE WHETHER LOUISIANA'S BOUNDARY WHEN IT
BECAME A MEMBER OF THE UNION EXTENDED THREE LEAGUES OR MORE INTO THE
GULF, AS LOUISIANA CLAIMED, SO AS TO ENTITLE IT TO THE MAXIMUM THREE
LEAGUE GRANT OF THE SUBMERGED LANDS ACT.  AFTER ARGUMENT ON THE
GOVERNMENT'S MOTION FOR JUDGMENT AGAINST LOUISIANA, WE SUGGESTED THAT
THE INTERESTS OF ALL THE GULF STATES UNDER THE ACT WERE SO RELATED,
"THAT THE JUST, ORDERLY, AND EFFECTIVE DETERMINATION" OF THE ISSUES
REQUIRED THAT ALL THOSE STATES BE BEFORE THE COURT.  UNITED STATES V.
LOUISIANA, 354 U.S. 515, 516.  ALL ARE NOW DEFENDANTS, EACH HAS CLAIMED
A THREE-LEAGUE BOUNDARY AND GRANT, WHICH THE UNITED STATES DENIES, AND
THE ISSUES HAVE BEEN EXTENSIVELY BRIEFED AND ARGUED BY THE PARTIES.  AS
STATED, THIS OPINION DEALS ONLY WITH THE UNITED STATES-FLORIDA
CONTROVERSY. 

FLORIDA CONTENDS THAT THE RECORD SHOWS IT TO BE ENTITLED UNDER THE
ACT TO A DECLARATION OF OWNERSHIP OF THREE MARINE LEAGUES OF SUBMERGED
LANDS, BECAUSE (1) ITS BOUNDARY EXTENDED THREE LEAGUES OR MORE SEAWARD
INTO THE GULF WHEN IT BECAME A STATE, AND (2) CONGRESS APPROVED SUCH A
THREE-LEAGUE BOUNDARY FOR FLORIDA AFTER ITS ADMISSION INTO THE UNION
AND BEFORE PASSAGE OF THE SUBMERGED LANDS ACT.  SINCE WE AGREE WITH
FLORIDA'S LATTER CONTENTION, AS TO CONGRESSIONAL APPROVAL, WE FIND IT
UNNECESSARY TO DECIDE THE BOUNDARIES OF FLORIDA AT THE TIME IT BECAME A
STATE. 

FLORIDA CLAIMS THAT CONGRESS APPROVED ITS THREE-LEAGUE BOUNDARY IN
1868, BY APPROVING (FN3) A CONSTITUTION SUBMITTED TO CONGRESS AS
REQUIRED BY A RECONSTRUCTION ACT PASSED MARCH 2, 1867.  14 STAT. 428. 
THAT CONSTITUTION CAREFULLY DESCRIBED FLORIDA'S BOUNDARY ON THE GULF OF
MEXICO SIDE AS RUNNING FROM A POINT IN THE GULF "THREE LEAGUES FROM THE
MAINLAND" AND "THENCE NORTHWESTWARDLY THREE LEAGUES FROM THE LAND" TO
THE NEXT POINT.  (FN4)  THE UNITED STATES CONCEDES THAT FROM 1868 TO
THE PRESENT DAY FLORIDA HAS CLAIMED BY ITS CONSTITUTIONS A THREE-LEAGUE
BOUNDARY INTO THE GULF.  (FN5) THE UNITED STATES ALSO ADMITS THAT
FLORIDA SUBMITTED THIS CONSTITUTION TO CONGRESS IN 1868, BUT DENIES
THAT THE GULF BOUNDARY IT DEFINED WAS "APPROVED" BY CONGRESS WITHIN THE
MEANING OF THE SUBMERGED LANDS ACT.  (FN6)  THIS IS THE DECISIVE
QUESTION AS BETWEEN FLORIDA AND THE UNITED STATES. 

THE 1868 FLORIDA CONSTITUTION WAS WRITTEN AND ADOPTED BY FLORIDA
PURSUANT TO THE CONGRESSIONAL ACT OF MARCH 2, 1867 (FN7) AS
SUPPLEMENTED BY A SECOND ACT OF MARCH 23, 1867.  (FN8)  THESE
RECONSTRUCTION ACTS PURPORTED "TO PROVIDE FOR THE MORE EFFICIENT
GOVERNMENT OF THE REBEL STATES," INCLUDING FLORIDA.  THE STATES
INVOLVED WERE DIVIDED INTO MILITARY DISTRICTS AND SUBJECTED TO STRICT
MILITARY AUTHORITY.  DETAILED PROVISIONS WERE MADE FOR REGISTRATION OF
VOTERS, ELECTION OF DELEGATES TO CONSTITUTIONAL CONVENTIONS, THE
FRAMING OF CONSTITUTIONS "IN CONFORMITY WITH THE PROVISIONS" OF THESE
RECONSTRUCTION ACTS, AND SUBMISSION OF THE CONSTITUTIONS TO THE PEOPLE
OF THOSE STATES FOR THEIR RATIFICATION AND APPROVAL - ALL UNDER THE
SUPERVISION AND CONTROL OF COMMANDING GENERALS.  CONSTITUTIONS SO
ADOPTED WERE THEN TO BE "SUBMITTED TO CONGRESS FOR EXAMINATION AND
APPROVAL," AFTER WHICH APPROVAL BY CONGRESS AND AFTER RATIFICATION OF
THE FOURTEENTH AMENDMENT BY EACH STATE, EACH SHOULD BE "DECLARED
ENTITLED TO REPRESENTATION IN CONGRESS."  FLORIDA'S CONSTITUTION WAS
WRITTEN, CONSIDERED AND VOTED UPON IN THE STATE IN ACCORDANCE WITH
THESE STATUTORY DIRECTIONS AND UNDER THE EYE AND CONTROL OF AN ARMY
GENERAL.  WHEN SUBMITTED TO CONGRESS IT WAS MUCH DEBATED, AND
THEREAFTER ON JUNE 25, 1868, ANOTHER ACT WAS PASSED AUTHORIZING THE
ADMISSION OF FLORIDA AND OTHER SOUTHERN STATES "TO REPRESENTATION IN
CONGRESS."  (FN9)  15 STAT. 73.  THE PREAMBLE TO THIS "ADMISSION ACT"
DECLARED THAT THESE STATES HAD ADOPTED THEIR CONSTITUTIONS "IN
PURSUANCE OF THE PROVISIONS" OF THE 1867 ACTS, WHICH ACTS, AS HAS BEEN
POINTED OUT, REQUIRED "EXAMINATION AND APPROVAL" OF THE CONSTITUTIONS
AS A PREREQUISITE TO READMISSION OF CONGRESSIONAL REPRESENTATION.  THUS
BY ITS OWN DESCRIPTION, CONGRESS NOT ONLY APPROVED FLORIDA'S
CONSTITUTION WHICH INCLUDED THREE-LEAGUE BOUNDARIES, BUT CONGRESS IN
1868 APPROVED IT WITHIN THE MEANING OF THE 1867 ACTS.  IN TURN, THE
APPROVAL THE 1867 ACTS REQUIRED APPEARS TO BE PRECISELY THE APPROVAL
THE 1953 ACT CONTEMPLATES. 

THE GOVERNMENT ARGUES, HOWEVER, THAT THESE READMISSION ENACTMENTS DID
NOT CONTEMPLATE AND CONGRESS DID NOT MAKE A GENERAL SCRUTINY OF ALL THE
PROVISIONS OF THE STATE CONSTITUTIONS, BUT ONLY THAT THE CONSTITUTIONS
HAD BEEN DULY ADOPTED AND WERE REPUBLICAN IN FORM.  THE GOVERNMENT
MAKES MANY REFERENCES TO DEBATES WHICH INDICATED THAT SOME SENATORS AND
CONGRESSMEN WERE SATISFIED WITH SUCH A LIMITED EXAMINATION OF THE
CONSTITUTIONS.  (FN10)  FLORIDA, ON THE OTHER HAND, POINTS OUT MANY
OTHER REMARKS WHICH INDICATED A MUCH CLOSER EXAMINATION OF THE STATE
CONSTITUTIONS.  (FN11) 

IT IS BEYOND DOUBT THAT THE PROPOSED CONSTITUTIONS WERE PRINTED, THEN
READ, DISCUSSED, AND AMENDED IN THE CONGRESS.  FOR INSTANCE, THE VERY
1868 BILL THAT ADMITTED FLORIDA'S CONGRESSIONAL REPRESENTATIVES
CONTAINED A PROVISO REJECTING CERTAIN PARTS OF THE GEORGIA
CONSTITUTION.  (FN12) THAT AT LEAST SOME CONGRESSMEN SCRUTINIZED THE
CONSTITUTIONS TO SEE IF AMENDMENTS WERE NECESSARY IS PERSUASIVELY SHOWN
BY THE REMARKS OF CONGRESSMAN THADDEUS STEVENS, SET OUT BELOW.  (FN13)
MR. STEVENS WAS CHAIRMAN OF THE ALL-IMPORTANT JOINT COMMITTEE ON
RECONSTRUCTION, AND, BECAUSE OF HIS LEADING ROLE AS ARCHITECT OF THE
RECONSTRUCTION PLAN FINALLY ADOPTED AND CARRIED OUT BY CONGRESS, HAS
APPROPRIATELY BEEN CALLED "THE FATHER OF THE RECONSTRUCTION."  (FN14) 

THE VOLUMINOUS REFERENCES TO THE RECONSTRUCTION DEBATES FAIL TO SHOW
US PRECISELY HOW CLOSELY THE SOUTHERN STATES' RECONSTRUCTION
CONSTITUTIONS WERE EXAMINED.  WE CANNOT KNOW, FOR SURE, WHETHER ALL OR
ANY OF THE CONGRESSMEN OR SENATORS GAVE SPECIAL ATTENTION TO FLORIDA'S
BOUNDARY DESCRIPTION.  WE ARE SURE, HOWEVER, THAT THIS CONSTITUTION WAS
EXAMINED AND APPROVED AS A WHOLE, REGARDLESS OF HOW THOROUGH THAT
EXAMINATION MAY HAVE BEEN, AND WE THINK THAT THE 1953 SUBMERGED LANDS
ACT REQUIRES NO MORE THAN THIS.  MOREOVER, THE HEARINGS AND THE REPORTS
ON THE SUBMERGED LANDS ACT SHOW, AS THE GOVERNMENT'S BRIEF CONCEDES,
THAT THOSE WHO WROTE INTO THAT MEASURE A PROVISION WHEREBY A STATE WAS
GRANTED UP TO THREE LEAGUES IF SUCH A BOUNDARY HAD BEEN "HERETOFORE
APPROVED BY CONGRESS," HAD THEIR MINDS SPECIFICALLY FOCUSED ON
FLORIDA'S CLAIM BASED ON SUBMISSION OF ITS 1868 CONSTITUTION TO
CONGRESS.  WHEN FLORIDA'S CLAIMS WERE MENTIONED IN THE HEARINGS IT WAS
GENERALLY ASSUMED THAT CONGRESS HAD PREVIOUSLY "APPROVED" ITS THREE
LEAGUE BOUNDARIES.  (FN15)  THE SENATE REPORT ON A PRIOR BILL, SET
FORTH AS A PART OF THE REPORT ON THE 1953 ACT, POINTED OUT THAT "IN
1868 CONGRESS APPROVED THE CONSTITUTION OF FLORIDA, IN WHICH ITS
BOUNDARIES WERE DEFINED AS EXTENDING 3 MARINE LEAGUES SEAWARD AND A
LIKE DISTANCE INTO THE GULF OF MEXICO."  S. REP. NO. 133, 83D CONG.,
1ST SESS. 64-65.  (FN16)  THE LANGUAGE OF THE SUBMERGED LANDS ACT WAS
AT LEAST IN PART DESIGNED TO GIVE FLORIDA AN OPPORTUNITY TO PROVE ITS
RIGHT TO ADJACENT SUBMERGED LANDS SO AS TO REMEDY WHAT THE CONGRESS
EVIDENTLY FELT HAD BEEN AN INJUSTICE TO FLORIDA.  UPON PROOF THAT
FLORIDA'S CLAIMS MET THE STATUTORY STANDARD - "BOUNDARIES  ...
HERETOFORE APPROVED BY THE CONGRESS" - THE ACT WAS INTENDED TO
"CONFIRM" AND "RESTORE" THE THREE-LEAGUE OWNERSHIP FLORIDA HAD CLAIMED
AS ITS OWN SO LONG AND WHICH CLAIM THIS COURT HAD IN EFFECT REJECTED IN
UNITED STATES V. TEXAS, 339 U.S. 707; UNITED STATES V. LOUISIANA, 339
U.S. 699; AND UNITED STATES V. CALIFORNIA, 332 U.S. 19.  AS PREVIOUSLY
SHOWN, CONGRESS IN 1868 DID APPROVE FLORIDA'S CLAIM TO A BOUNDARY THREE
LEAGUES FROM ITS SHORES.  AND, AS WE HAVE HELD, THE 1953 ACT WAS WITHIN
THE POWER OF CONGRESS TO ENACT.  ALABAMA V. TEXAS, 347 U.S. 272.  SEE
ALSO UNITED STATES V. CALIFORNIA, 332 U.S. 19, 27. 

WE THEREFORE DENY THE UNITED STATES' MOTION FOR JUDGMENT.  WE HOLD
THAT THE SUBMERGED LANDS ACT GRANTS FLORIDA A THREE-MARINE-LEAGUE BELT
OF LAND UNDER THE GULF, SEAWARD FROM ITS COASTLINE, AS DESCRIBED IN
FLORIDA'S 1868 CONSTITUTION.  THE CAUSE IS RETAINED FOR SUCH FURTHER
PROCEEDINGS AS MAY BE NECESSARY MORE SPECIFICALLY TO DETERMINE THE
COASTLINE, FIX THE BOUNDARY AND DISPOSE OF ALL OTHER RELEVANT MATTERS. 
THE PARTIES MAY SUBMIT AN APPROPRIATE FORM OF DECREE GIVING EFFECT TO
THE CONCLUSIONS REACHED IN THIS OPINION.  IT IS SO ORDERED. 

FN1 67 STAT. 29, 43 U.S.C. SECS. 1301-1315. 

FN2  43 U.S.C. SEC. 1301(A)(2), (B).  SECTION 1301(B) PROVIDES:  "THE
TERM 'BOUNDARIES' INCLUDES THE SEAWARD BOUNDARIES OF A STATE OR ITS
BOUNDARIES IN THE GULF OF MEXICO  ...  AS THEY EXISTED AT THE TIME SUCH
STATE BECAME A MEMBER OF THE UNION, OR AS HERETOFORE APPROVED BY THE
CONGRESS,  ... BUT IN NO EVENT SHALL THE TERM  ...  BE INTERPRETED AS
EXTENDING FROM THE COAST LINE MORE THAN  ... THREE MARINE LEAGUES INTO
THE GULF OF MEXICO."  SECTION 1311(A) PROVIDES:  "IT IS  ...  DECLARED
TO BE IN THE PUBLIC INTEREST THAT (1) TITLE TO AND OWNERSHIP OF THE
LANDS BENEATH NAVIGABLE WATERS WITHIN THE BOUNDARIES OF THE RESPECTIVE
STATES  ...  BE, AND THEY ARE,  ...  RECOGNIZED, CONFIRMED,
ESTABLISHED, AND VESTED IN AND ASSIGNED TO THE RESPECTIVE STATES  ...
."  AND SEC. 1312 PROVIDES: "THE SEAWARD BOUNDARY OF EACH ORIGINAL
COASTAL STATE IS APPROVED AND CONFIRMED AS A LINE THREE GEOGRAPHICAL
MILES DISTANT FROM ITS COAST LINE  ...  .  NOTHING IN THIS SECTION IS
TO BE CONSTRUED AS QUESTIONING OR IN ANY MANNER PREJUDICING THE
EXISTENCE OF ANY STATE'S SEAWARD BOUNDARY BEYOND THREE GEOGRAPHICAL
MILES IF IT WAS SO PROVIDED BY ITS CONSTITUTION OR LAWS PRIOR TO OR AT
THE TIME SUCH STATE BECAME A MEMBER OF THE UNION, OR IF IT HAS BEEN
HERETOFORE APPROVED BY CONGRESS." 

FN3  THE FLORIDA CONSTITUTION OF 1868, 25 FLA. STAT. ANN. 411, 413,
WAS CONSIDERED BY CONGRESS ALONG WITH THE CONSTITUTIONS OF NORTH
CAROLINA, SOUTH CAROLINA, LOUISIANA, GEORGIA AND ALABAMA IN AN ACT OF
JUNE 25, 1868, READMITTING THOSE STATES TO "REPRESENTATION IN
CONGRESS."  15 STAT. 73. 

FN4  THE FLORIDA BOUNDARY DESCRIBED IN ARTICLE I OF THAT STATE'S 1868
CONSTITUTION PROVIDED IN RELEVANT PART:  "  ...  THENCE SOUTHEASTWARDLY
ALONG THE ATLANTIC OCEAN COAST TO THE EDGE OF THE GULF STREAM; THENCE
SOUTHWESTWARDLY ALONG THE EDGE OF THE GULF STREAM AND FLORIDA REEFS TO
AND INCLUDING THE TORTUGAS ISLANDS; THENCE NORTHEASTWARDLY TO A POINT
THREE LEAGUES FROM THE MAINLAND; THENCE NORTHWESTWARDLY THREE LEAGUES
FROM THE LAND, TO A POINT WEST OF THE MOUTH OF THE PERDIDO RIVER;
THENCE TO THE PLACE OF BEGINNING." 

FN5  THE FLORIDA CONSTITUTION OF 1885, 25 FLA. STAT. ANN. 449, IS THAT
STATE'S CURRENT CONSTITUTION.  LANGUAGE IDENTICAL TO THAT SET FORTH
ABOVE, NOTE 4, SUPRA, PROVIDES, IN THE PRESENT ARTICLE I, FOR THE SAME
THREE-LEAGUE BOUNDARY DESCRIBED IN 1868.  ID., 717. 

FN6  SEE NOTE 2, SUPRA. 

FN7  14 STAT. 428. 

FN8  15 STAT. 2. 

FN9  DEBATES ON THE 1868 ACT, INCLUDING DISCUSSIONS OF THE
CONSTITUTIONS OF THE STATES TO BE READMITTED TO REPRESENTATION IN
CONGRESS, ARE REPORTED AT CONG. GLOBE, 40TH CONG., 2D SESS. 2412-2413,
2445-2456, 2461-2466, 2498-2499, 2858-2860, 2861-2872, 2895-2900, 2901
2904, 2927-2935, 2963-2970, 2998-3022, 3023-3029, 3052, 3090-3097,
3466, 3484-3485, APP. 314-316, 329-338, 347-354. 

FN10  SEE, E.G., THE REMARKS OF SENATOR SHERMAN.  "WHEN WE GO BEYOND
SECURING THE ENFORCEMENT OF THE GUARANTY OF REPUBLICAN GOVERNMENT,
WHICH WE HAVE THE POWER TO DO, WHEN WE UNDERTAKE TO LEGISLATE FOR THEM
UPON MATTERS ON WHICH THEY HAVE PASSED, WE TRANSCEND OUR BOUNDS." 
CONG.  GLOBE, 40TH CONG., 2D SESS. 2969.  SENATOR WILLIAMS SAID:  "IF I
UNDERSTAND THE RECONSTRUCTION LAWS, IT IS NOT NECESSARILY THE DUTY OF
CONGRESS TO REVISE THE CONSTITUTION OF EVERY ONE OF THESE STATES  ...
OTHERWISE WE MIGHT JUST AS WELL HAVE MADE THESE CONSTITUTIONS AT THE
BEGINNING AND SENT THEM DOWN THERE WITH INSTRUCTIONS TO THE PEOPLE TO
ADOPT THEM AS THE CONSTITUTIONS OF THE SEVERAL STATES."  ID., 2999. 
FN11  IN OPPOSING THE INCLUSION OF FLORIDA IN THE READMISSION BILL,
CONGRESSMAN PAINE, A MEMBER OF THE POWERFUL RECONSTRUCTION COMMITTEE,
SAID:  "IT HAS BEEN MY DUTY AS A MEMBER OF THE COMMITTEE TO SCRUTINIZE
THIS CONSTITUTION.  I OUGHT TO EXPLAIN TO THE HOUSE ITS CHARACTER. 
AFTER I HAVE DONE THAT IT WILL BE FOR EACH MEMBER TO DECIDE HIMSELF
WHETHER HE WILL OR WILL NOT VOTE FOR CONCURRENCE."   CONG.  GLOBE, 40TH
CONG., 2D SESS. 3091.  SEE ALSO DISCUSSION CONCERNING THE ARKANSAS
CONSTITUTION, NOTE 13, INFRA. 

FN12  15 STAT. 73.  AS TO THIS ACTION A CONGRESSMAN SAID:  "WITH A
MICROSCOPIC VIEW THE COMMITTEE ON RECONSTRUCTION, OR A MAJORITY OF
THEM, HAVE LOOKED INTO THE DETAILS OF THE CONSTITUTION OF GEORGIA, AND
PROPOSE TO STRIKE OUT OF IT CERTAIN PROVISIONS."  CONG. GLOBE, 40TH
CONG., 2D SESS. 3094. 

FN13  "NOW, ALL I HAVE TO SAY IS THIS:  THIS CONSTITUTION OF ARKANSAS
HAS BEEN BEFORE US FOR FOUR WEEKS, FAIRLY PRINTED  ... .  I THINK THAT
THIS CONSTITUTION IS ABOVE ALL SUSPICION, AND I AM A LITTLE SCRUPULOUS
AND PARTICULAR ABOUT ANY CONSTITUTION I AM CALLED UPON TO VOTE FOR. 
NOW, WITH A CONSTITUTION WITH WHICH I CAN FIND NO FAULT, AFTER IT HAS
BEEN SO LONG BEFORE US, I CANNOT FOR A MOMENT CONCEIVE THAT THERE HAS
NOT BEEN TIME ENOUGH ALLOWED FOR ALL OF US TO BECOME ACQUAINTED WITH
IT.  AND AS IN EQUITY THAT IS PRESUMED TO BE DONE WHICH SHOULD BE DONE,
WHICH OUGHT TO BE DONE, THEREFORE IT IS TO BE PRESUMED THAT THERE IS
NOT A MAN IN THIS HOUSE WHO DOES NOT KNOW ALL ABOUT THIS
CONSTITUTION."  CONG. GLOBE, 40TH CONG., 2D SESS. 2399.  CONGRESSMAN
STEVENS WAS HERE REFERRING TO ONE STATE, ARKANSAS, 500 COPIES OF WHOSE
CONSTITUTION WERE PRINTED FOR USE OF THE MEMBERS OF THE HOUSE OF
REPRESENTATIVES, CONG. GLOBE, 40TH CONG., 2D SESS. 2333, 2372.  THE
RECORD SHOWS THAT FLORIDA'S CONSTITUTION WAS REFERRED TO THE COMMITTEE
ON RECONSTRUCTION AND COPIES WERE PRINTED FOR THE USE OF THE HOUSE. 
THE CONGRESSIONAL HISTORY INDICATES THAT ALL THE CONSTITUTIONS WERE
GIVEN EQUALLY CLOSE ATTENTION. 

FN14  BRODIE, THADDEUS STEVENS (1959), 371.  SEE ALSO 17 DICTIONARY
OF AMERICAN BIOGRAPHY (1935), 620, 624, AND BIOGRAPHIES CITED AT 625. 

FN15  "SENATOR LONG.  WHEN CONGRESS APPROVED THE CONSTITUTION OF THE
STATE OF FLORIDA, FIXING FLORIDA'S BOUNDARY ON THE GULF SIDE 3 LEAGUES
OUT INTO THE SEA, COULD THERE BE ANY DOUBT IN YOUR MIND THAT CONGRESS
IN EFFECT SAID TO FLORIDA THAT YOUR BOUNDARY GOES OUT 3 LEAGUES AND
AGREED TO IT?  THAT CERTAINLY IS NOT A UNILATERAL ACT, IS IT?"
HEARINGS BEFORE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS ON
S.J. RES. 13, S. 294, S. 107, S. 107 AMENDMENT, AND S.J. RES. 18, 83D
CONG., 1ST SESS. 317.  SEE ALSO ID., 323 AND 326 FOR REMARKS THAT IN
1868 "CONGRESS APPROVED" FLORIDA'S BOUNDARY, AND 931 FOR ATTORNEY
GENERAL BROWNELL'S ACKNOWLEDGMENT THAT FLORIDA'S WEST COAST WOULD NOT
BE LIMITED TO THE GENERAL THREE-MILE LINE. 

FN16  AT PAGES 21-23 OF THIS REPORT MAY BE FOUND A LEGISLATIVE HISTORY
OF THE SUBMERGED LANDS CONTROVERSY.  APPENDIX E, THE REPORT OF THE
SENATE JUDICIARY COMMITTEE ON THE PRIOR BILL, CONTAINS FURTHER HELPFUL
BACKGROUND MATERIAL. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BRENNAN, MR. JUSTICE
WHITTAKER AND MR. JUSTICE STEWART JOIN, CONCURRING.* 

*NOTE:  THIS OPINION APPLIES ALSO TO UNITED STATES V. LOUISIANA ET
AL., ANTE, P. 1. 

CONSIDERING THE VARIETY OF VIEWS EVOKED BY THESE CASES, I DEEM IT
APPROPRIATE TO ADD A FEW WORDS TO THE TWO COURT OPINIONS WHICH I HAVE
JOINED. 

THE ONE THING WHICH I TAKE TO BE INCONTESTABLE IS THAT CONGRESS DID
NOT, BY THE SUBMERGED LANDS ACT OF 1953, MAKE AN OUTRIGHT GRANT TO ANY
OF THE GULF STATES IN EXCESS OF THREE MILES.  CONGRESS ONLY GRANTED TO
EACH OF THESE STATES THE OPPORTUNITY TO ESTABLISH AT LAW THAT IT
POSSESSED A BOUNDARY IN EXCESS OF THREE MILES, EITHER BY VIRTUE OF
POSSESSION OF SUCH A BOUNDARY AT THE TIME OF ITS ADMISSION TO THE UNION
OR BY VIRTUE OF CONGRESSIONAL "APPROVAL" OF SUCH A BOUNDARY PRIOR TO
THE ENACTMENT OF THE SUBMERGED LANDS ACT.  A GULF STATE THAT CAN
SUCCESSFULLY ESTABLISH SUCH A JUDICIALLY ASCERTAINABLE FACT IS ENTITLED
TO A GRANT OF THE SUBMERGED LANDS BEYOND THREE MILES TO A DISTANCE OF
THE LESSER OF THREE LEAGUES OR OF THE BOUNDARY SO ESTABLISHED. 
CONGRESS, IN THE SUBMERGED LANDS ACT ITSELF, DID NOT DETERMINE THE
EXISTENCE OF A BOUNDARY FOR ANY STATE BEYOND THREE MILES, EITHER
EXPLICITLY OR BY IMPLIED APPROVAL OF A CLAIM PRESENTED TO IT IN THE
COURSE OF THE LEGISLATIVE PROCESS.  NOR OF COURSE DID CONGRESS VEST
THIS COURT WITH DETERMINATION OF A CLAIM BASED ON "EQUITY" IN THE
LAYMAN'S LOOSE SENSE OF THE TERM, FOR IT COULD NOT.  CONGRESS MAY
INDULGE IN LARGESS BASED ON CONSIDERATIONS OF POLICY; CONGRESS CANNOT
ASK THIS COURT TO EXERCISE BENEVOLENCE ON ITS BEHALF. 

THERE IS NO FOUNDATION IN THE ACT OF 1953 OR ITS LEGISLATIVE HISTORY
FOR THE VIEW THAT PARTICULARIZED, EXPRESS APPROVAL OF A STATE'S
BOUNDARY CLAIM BY A PRIOR CONGRESS IS REQUIRED TO MAKE A DEFINED
BOUNDARY THE MEASURE OF THE GRANT.  TO THE CONTRARY, IN THE CASE OF
FLORIDA, AUTHORITATIVE LEGISLATIVE HISTORY MAKES IT PERFECTLY CLEAR
THAT THE VERY QUESTION DELIBERATELY PRESERVED BY THE ACT OF 1953 WAS
WHETHER CONGRESSIONAL APPROVAL OF THE NEW FLORIDA CONSTITUTION IN THE
RECONSTRUCTION LEGISLATION OF 1867-1868, BY WHICH FLORIDA WAS RESTORED
TO FULL PARTICIPATION IN THE UNION, AMOUNTED TO AN APPROVAL OF THE
THREE-LEAGUE BOUNDARY WHICH THAT CONSTITUTION EXPLICITLY SET FORTH.*  I
SUSTAIN FLORIDA'S CLAIM BECAUSE I FIND THAT ITS BOUNDARY WAS SO
APPROVED. 

*FOR EXAMPLE, SENATOR HOLLAND, THE SENATOR FROM FLORIDA, STATED, IN
RESPONSE TO QUESTIONING ON THE PRECISE ISSUE: 

"I HAVE NEVER CONTENDED IN THIS DEBATE, OR ANYWHERE ELSE, FOR A 3
LEAGUE LIMITATION IN THE CASE OF MY STATE, EXCEPT AS FIXED BY ITS
CONSTITUTION AND EXCEPT AS APPROVED, I BELIEVE, BY THE CONGRESS. 

"IF THE SENATOR DOES NOT THINK WE HAVE A CASE WHICH WE CAN ESTABLISH
IN COURT, WHY IS HE CONCERNED ABOUT IT?  I AM PERFECTLY WILLING TO RELY
UPON THAT 3-LEAGUE LIMIT ON OUR GULF COAST, AS STATED IN THE FLORIDA
CONSTITUTION AND AS APPROVED BY THE CONGRESS, SO I BELIEVE, IN 1868. 

"SO IT IS VERY DIFFICULT FOR ME TO UNDERSTAND WHY THOSE WHO OPPOSE THE
PENDING JOINT RESOLUTION FEEL THAT THERE IS SOMETHING TO FEAR, IF THEY
FEEL WE HAVE NO FIRM CASE FOR THAT BOUNDARY.  WE DO NOT SPELL OUT THAT
FIRM CASE IN THE PENDING MEASURE.  IN THIS MEASURE WE SIMPLY CLAIM THE
RIGHT  ...  TO SHOW - IF IT BE A FACT - THAT WE HAVE A GREATER BORDER
THAN 3 MILES, AS WE CLAIM, IN THE GULF OF MEXICO. 

"LIKEWISE WE CLAIM - AND TO COME UNDER THIS MEASURE WE WOULD HAVE TO
ESTABLISH THAT CLAIM - THAT THAT 3-LEAGUE BORDER WAS NOT ONLY PROVIDED
IN OUR CONSTITUTION, AND IS STILL THERE, BUT THAT IT WAS APPROVED WHEN
OUR CONSTITUTION WAS APPROVED BY ACT OF CONGRESS. 

"SO IF THE SENATOR THINKS THAT ANY LINK IN THAT CHAIN IS UNSAFE AND
INSECURE, THAT SHOULD MAKE HIM BELIEVE THAT FLORIDA WILL NOT HAVE THE
CLAIMED 3-LEAGUE BOUNDARY  ...  . 

"I AM BEGINNING TO BELIEVE THAT MY FRIENDS ARE FAIRLY WELL CONVINCED
OF THE STRENGTH OF THE ACTION TAKEN BY CONGRESS, AND ARE AFRAID THAT
FLORIDA DOES HAVE A LEGAL AND A SUPPORTABLE CLAIM TO THE 3-LEAGUE
BOUNDARY, BECAUSE IF THE CASE WERE AS WEAK AS SOME SENATORS SEEM TO
BELIEVE IT IS, WHY WOULD THEY BE DISTURBED BY THE GENERAL WORDING OF
THE PENDING JOINT RESOLUTION, WHICH SIMPLY GIVES FLORIDA ITS DAY IN
COURT?"  99 CONG. REC. 2923. 

THE PROPER CONSTRUCTION OF THE EFFECT OF CONGRESSIONAL "APPROVAL" OF
THE FLORIDA RECONSTRUCTION CONSTITUTION PRESENTS PROBLEMS QUITE
DIFFERENT FROM THOSE STIRRED BY THE CONSTITUTIONAL CONTROVERSY AND ITS
RESULTING PROBLEMS THAT ARE COMPENDIOUSLY KNOWN AS RECONSTRUCTION.  SEE
LINCOLN'S LAST PUBLIC ADDRESS, APRIL 11, 1865.  8 BASLER, THE COLLECTED
WORKS OF ABRAHAM LINCOLN, 399.  THE READJUSTMENT OF THE RELATIONSHIP
BETWEEN THE STATES THAT HAD REMAINED IN THE UNION AND THOSE THAT HAD
SECEDED PRESENTED MAJOR ISSUES NOT ONLY FOR THE POLITICAL BRANCHES OF
THE GOVERNMENT, THE PRESIDENT AND THE CONGRESS, BUT ALSO FOR THIS
COURT.  INSOFAR AS THE PERPLEXING AND RECALCITRANT PROBLEMS OF
RECONSTRUCTION INVOLVED LEGAL SOLUTIONS, THE EVOLUTION OF
CONSTITUTIONAL DOCTRINE WAS AN INDISPENSABLE ELEMENT IN THE PROCESS OF
HEALING THE WOUNDS OF THE SANGUINARY CONFLICT.  IT WAS IN AID OF THAT
PROCESS THAT THIS COURT FORMULATED THE DOCTRINE EXPRESSED IN THE FAMOUS
SENTENCE IN TEXAS V. WHITE:  "THE CONSTITUTION, IN ALL ITS PROVISIONS,
LOOKS TO AN INDESTRUCTIBLE UNION, COMPOSED OF INDESTRUCTIBLE STATES." 
7 WALL.  700, 725. 

THIS THEORY SERVED AS A FRUITFUL MEANS FOR DEALING WITH THE PROBLEMS
FOR WHICH IT WAS DEVISED.  IT IS UNRELATED TO THE QUESTION NOW BEFORE
US, NAMELY, WHETHER, WHEN IT "APPROVED" AS AN ENTIRETY THE FLORIDA
CONSTITUTION AS A CONDITION TO THE RECOGNITION OF THAT STATE'S FULL
MEMBERSHIP IN THE UNION, CONGRESS EXERCISED ITS UNDOUBTED POWER TO
APPROVE THE SEAWARD BOUNDARY CLAIM CONTAINED WITHIN IT. IT IS IN
ESSENCE THE CONTENTION OF THE UNITED STATES THAT APPROVAL COULD ONLY
HAVE BEEN MANIFESTED EXPLICITLY, THAT CONGRESS MUST HAVE RATIFIED THE
BOUNDARY PROVISION IN SO MANY WORDS, EITHER EXPRESSLY IN THE
RECONSTRUCTION ACTS, OR BY AN AUTHORITATIVE GLOSS UPON THEM IN A
COMMITTEE REPORT OR A SPEECH ON THE FLOOR BY A RESPONSIBLE CHAIRMAN. 
BUT IN THESE MATTERS WE ARE DEALING WITH GREAT ACTS OF STATE, NOT WITH
FINE WRITING IN AN INSURANCE POLICY.  FLORIDA WAS DIRECTED TO SUBMIT A
NEW CONSTITUTION FOR CONGRESSIONAL APPROVAL AS A PREREQUISITE FOR THE
EXERCISE OF HER FULL RIGHTS IN THE UNION OF STATES AND THE RESUMPTION
OF HER RESPONSIBILITIES.  IN THIS CONTEXT IT WOULD ATTRIBUTE DECEPTIVE
SUBTLETY TO THE CONGRESSES OF 1867-1868 TO HOLD THAT IT IS NECESSARY TO
FIND A FORMAL, EXPLICIT STATEMENT BY THEM, WHETHER IN STATUTORY TEXT OR
HISTORY, THAT THE BOUNDARY CLAIM, AS SUBMITTED IN FLORIDA'S NEW
CONSTITUTION, WAS DULY CONSIDERED AND SANCTIONED, IN ORDER TO FIND
"APPROVAL" OF THAT CLAIM. 

MR. JUSTICE HARLAN, DISSENTING. 

IT IS WITH REGRET THAT I FIND MYSELF UNABLE TO AGREE THAT FLORIDA HAS
MADE A CASE FOR "THREE-LEAGUE" RIGHTS UNDER THE SUBMERGED LANDS ACT. 
AS SHOWN IN THE COURT'S OPINION RELATING TO THE OTHER STATES INVOLVED
IN THE LITIGATION (ANTE, PP. 16-36), A STATE SEAWARD BOUNDARY
SATISFYING THE REQUIREMENTS OF THE SUBMERGED LANDS ACT MUST BE ONE
WHICH BY VIRTUE OF CONGRESSIONAL ACTION WOULD HAVE BEEN LEGALLY
EFFECTIVE TO CARRY, AS BETWEEN STATE AND NATION, SUBMERGED LAND RIGHTS
UNDER THE POLLARD RULE, AS CONGRESS CONCEIVED THAT RULE TO HAVE BEEN
PRIOR TO THIS COURT'S DECISION IN THE CALIFORNIA CASE, 332 U.S. 19. 
THAT TEST SUPPLIES THE MEANING AND CONTENT NOT ONLY OF THE PHRASE
"BOUNDARIES  ...  AS THEY EXISTED AT THE TIME SUCH STATE BECAME A
MEMBER OF THE UNION," BUT ALSO OF THE PHRASE "BOUNDARIES  ...  AS
HERETOFORE APPROVED BY CONGRESS," CONTAINED IN SEC. 2 OF THE SUBMERGED
LANDS ACT (ANTE, P. 9, NOTE 7).  FLORIDA MUST SATISFY THAT TEST IF IT
IS TO PREVAIL IN THIS CASE. 

THE COURT'S FLORIDA OPINION CONCEIVES THE ISSUE TO BE WHETHER
CONGRESS IN 1868 MADE A "GENERAL SCRUTINY OF ALL THE PROVISIONS OF"
FLORIDA'S CONSTITUTION, AND STATES THAT THE SUBMERGED LANDS ACT
REQUIRES ONLY THAT IT HAVE BEEN "EXAMINED AND APPROVED AS A WHOLE." 
THE CONCURRING OPINION ASSERTS THAT THE RELEVANT INQUIRY IS "WHETHER
CONGRESSIONAL APPROVAL OF THE NEW FLORIDA CONSTITUTION  ... AMOUNTED TO
AN APPROVAL OF THE THREE-LEAGUE BOUNDARY WHICH THAT CONSTITUTION
EXPLICITLY SET FORTH."  IN MY VIEW, NEITHER FORMULATION ADEQUATELY
CHARACTERIZES THE NATURE OF THE QUESTION LEFT BY THE SUBMERGED LANDS
ACT TO THIS COURT.  IT MAY BE CONCEDED THAT CONGRESS SCRUTINIZED ALL
THE PROVISIONS OF FLORIDA'S CONSTITUTION AND THAT BY ACCEPTING THE
CONSTITUTION IT, IN AN ABSTRACT SENSE, APPROVED THE BOUNDARY
PROVISION.  THE FURTHER AND CONTROLLING INQUIRY THAT MUST BE MADE IS
WHETHER THE LEGAL EFFECT OF SUCH ACTION WAS TO ESTABLISH A VALID THREE
LEAGUE BOUNDARY FOR FLORIDA.  IF NOT, FLORIDA WOULD NOT HAVE OWNED THE
SUBMERGED LANDS TO THAT DISTANCE UNDER CONGRESS' CONCEPT OF THE POLLARD
RULE, AND IT WOULD THEREFORE BE ENTITLED TO NO BETTER RIGHTS UNDER THE
SUBMERGED LANDS ACT.  ON NEITHER BRANCH OF ITS CLAIMS DO I BELIEVE THAT
FLORIDA'S SHOWING MEASURES UP TO THAT STANDARD. 

                                            I. 

MY DIFFICULTY WITH FLORIDA'S "READMISSION" CLAIM BEGINS WITH THE
PROPOSITION THAT A STATE RELYING ON A READMISSION BOUNDARY STANDS ON
QUITE A DIFFERENT LEGAL FOOTING THAN ONE RELYING ON AN ORIGINAL
ADMISSION BOUNDARY.  IN THE LATTER INSTANCE THE FIXING OF A BOUNDARY IS
A NECESSARY INCIDENT OF CONGRESS' POWER TO ADMIT NEW STATES.  A NEWLY
ADMITTED STATE, IN THE ABSENCE OF AN EXPRESS FIXATION OF ITS BOUNDARY
BY THE CONGRESSIONAL ACT OF ADMISSION OR AN ARTICULATED REJECTION OF
ITS PREADMISSION BOUNDARY, MAY, I THINK, RELY ON A PRESUMED
CONGRESSIONAL PURPOSE TO ADOPT WHATEVER BOUNDARY THE POLITICAL ENTITY
HAD IMMEDIATELY PRIOR TO ITS ADMISSION AS A STATE.  (FN1)  THAT WOULD
SEEM TO BE THE EFFECT OF NEW MEXICO V. COLORADO, 267 U.S. 30, AND NEW
MEXICO V. TEXAS, 275 U.S. 279, 276 U.S. 557.  (FN2) 

DIFFERENT CONSIDERATIONS, HOWEVER, OBTAIN IN THE CASE OF A STATE
READMITTED TO "REPRESENTATION IN CONGRESS" AFTER THE CIVIL WAR.  SUCH A
STATE RENOUNCED THE UNION WITH BOUNDARIES ALREADY FIXED BY CONGRESS AT
THE TIME OF ORIGINAL ADMISSION.  WHEN IT WAS RESTORED TO FULL
PARTICIPATION IN THE UNION, THERE IS NO REASON TO SUPPOSE ITS
TERRITORIAL LIMITS WOULD NOT REMAIN THE SAME.  SO MUCH INDEED FINDS
SOUND SUPPORT IN THE CONSTITUTIONAL DOCTRINES EVOLVED IN THE SO-CALLED
RECONSTRUCTION CASES, EVEN THOUGH THEY RELATED TO DIFFERENT PROBLEMS
ARISING OUT OF THE CIVIL WAR.  SEE TEXAS V. WHITE, 7 WALL.  700, 726;
WHITE V. HART, 13 WALL.  646, 649-652; GUNN V. BARRY, 15 WALL.  610,
623; KEITH V. CLARK, 97 U.S. 454, 461.  SINCE, AS WILL BE SHOWN LATER
(POST, PP. 140-141), FLORIDA RENOUNCED THE UNION WITH A SEAWARD
BOUNDARY NO GREATER THAN THREE MILES, THE ISSUE HERE IS WHETHER UPON
READMISSION CONGRESS CHANGED THAT BOUNDARY TO THREE LEAGUES.  UNLIKE
THE SITUATION AT ORIGINAL ADMISSION, WHERE THE NECESSITY OF FIXING SOME
BOUNDARY FOR A NEWLY ADMITTED STATE LEADS READILY TO THE PRESUMPTION OF
CONGRESSIONAL APPROVAL OF A TENDERED PREADMISSION BOUNDARY, NO SIMILAR
PRESUMPTION ARISES IN CONNECTION WITH AN ALLEGED CHANGE IN A STATE
BOUNDARY ALREADY FIXED BY CONGRESS. 

AFTER A PAINSTAKING EXAMINATION OF THE LEGISLATIVE MATERIALS I CAN
FIND NO EVIDENCE WHATEVER THAT THE CONGRESS INTENDED TO CHANGE
FLORIDA'S SEAWARD BOUNDARY FROM ONE NOT IN EXCESS OF THREE MILES TO ONE
OF THREE LEAGUES WHEN THE STATE WAS READMITTED TO REPRESENTATION IN
1868.  CERTAINLY THE ACT OF READMISSION (ACT OF JUNE 25, 1868, 15 STAT.
73), UPON WHICH FLORIDA RELIES, AFFORDS NO BASIS FOR A CLAIM THAT
CONGRESS EXPRESSLY APPROVED THE STATE'S THREE-LEAGUE BOUNDARY
PROVISION.  (FN3)  THE STATUTE REFERS IN NO WAY TO BOUNDARIES; IT DOES
NOT EVEN UNDERTAKE TO APPROVE FLORIDA'S CONSTITUTION, LET ALONE THE
BOUNDARIES DESCRIBED THEREIN; AND IT IS ENTITLED MERELY AS "AN ACT TO
ADMIT  ...  FLORIDA, TO REPRESENTATION IN CONGRESS," NOT AS AN ACT TO
ADMIT IT TO THE UNION.  CF. WHITE V. HART, SUPRA, AT 652.  (FN4) 

NOR CAN I FIND ANY BASIS IN THE LEGISLATIVE RECORD FOR A CONCLUSION
THAT CONGRESS IMPLIEDLY CHANGED FLORIDA'S BOUNDARY.  THE CONGRESSIONAL
DEBATES AND REPORTS MAY BE SEARCHED IN VAIN FOR A SINGLE REFERENCE -
EVEN A CASUAL ONE - TO THE BOUNDARIES OF ANY OF THE READMITTED STATES. 
THE PREAMBLE OF THE ACT OF JUNE 25, 1868, AND THE CONGRESSIONAL DEBATES
AFFIRMATIVELY SHOW THAT ALL WITH WHICH CONGRESS WAS CONCERNED WAS
WHETHER THE CONSTITUTIONS OF THE READMITTED STATES HAD BEEN VALIDLY
ADOPTED AND WERE REPUBLICAN IN STRUCTURE, AND, IN A FEW INSTANCES,
WHETHER THEY CONTAINED PROVISIONS IN PALPABLE VIOLATION OF THE FEDERAL
CONSTITUTION.  (FN5)  NO TERRITORIAL QUESTIONS AT ALL APPEAR TO HAVE
FIGURED IN THE DEBATES.  IN THESE CIRCUMSTANCES THE CASE OF VIRGINIA V.
TENNESSEE, 148 U.S. 503, UPON WHICH FLORIDA RELIES IN SUPPORT OF ITS
ARGUMENT AS TO IMPLIED APPROVAL, IS QUITE INAPPOSITE.  THERE THE TWO
STATES HAD MADE A COMPACT WITH RESPECT TO THE BOUNDARY BETWEEN THEM. 
SUBSEQUENTLY CONGRESS ADOPTED THE LINE SO ESTABLISHED IN SETTING UP
DISTRICTS FOR JUDICIAL, REVENUE, ELECTION, AND APPOINTIVE PURPOSES.  IT
WAS HELD THAT CONGRESS HAD THEREBY IMPLIEDLY APPROVED THE INTERSTATE
COMPACT.  ID., 521-522.  IN THE PRESENT INSTANCE WE HAVE NO AFFIRMATIVE
ACTION BY CONGRESS RESPECTING THE 1868 PROFFERED FLORIDA BOUNDARY IN
ANY WAY COMPARABLE TO THAT IN THIS EARLIER CASE. 

NOR CAN A PURPOSE TO CHANGE FLORIDA'S BOUNDARY BE INFERRED FROM THE
BARE CONTEXT OF THE CONGRESSIONAL ACTION.  THE CONSTITUTIONAL AREA IN
WHICH THE CONGRESS WAS MOVING IN 1868 SHOULD NOT BE FORGOTTEN. 
CONGRESS WAS NOT UNDERTAKING TO EXERCISE ITS POWER TO FIX STATE
BOUNDARIES INCIDENT TO THE ADMISSION OF NEW STATES.  RATHER, IT WAS
ENGAGED IN "RE-ESTABLISHING THE BROKEN RELATIONS OF THE STATES WITH THE
UNION," AND IN SATISFYING ITSELF THAT THE CONSTITUTIONS OF THE STATES
LATELY IN REBELLION HAD BEEN VALIDLY ADOPTED AND WERE REPUBLICAN IN
FORM, ALL PURSUANT TO CONGRESS' CONSTITUTIONAL OBLIGATION TO GUARANTEE
TO EACH STATE A REPUBLICAN FORM OF GOVERNMENT.  SEE TEXAS V. WHITE,
SUPRA, 727-728.  THIS IS NOT TO SAY THAT CONGRESS COULD NOT AT THE SAME
TIME HAVE CHANGED ANY STATE'S ORIGINAL ADMISSION BOUNDARY, BUT ONLY TO
RAISE THE QUESTION WHETHER IT IN FACT DID SO. WHILE THE EXERCISE OF A
PARTICULAR CONSTITUTIONAL POWER DOES NOT OF COURSE PRECLUDE RESORT TO
OTHERS, THE NATURE OF THE POWER EXERTED IN 1868 DOES SEEM TO ME TO
NEGATIVE THE IDEA THAT CONGRESS ALSO PURPORTED TO EXERCISE ITS POWER TO
CHANGE FLORIDA'S BOUNDARY.  (FN6) 

IN THE LAST ANALYSIS I THINK THAT FLORIDA'S CLAIM HERE COULD ONLY BE
SUSTAINED ON THE VIEW THAT CONGRESS WAS UNDER A DUTY TO SPEAK WITH
REFERENCE TO THE STATE'S BOUNDARY PROVISION, FAILING WHICH CONGRESS'
SILENCE SHOULD AS A MATTER OF LAW BE DEEMED THE EQUIVALENT OF
ACCEPTANCE OF THE PROVISION.   IN LIGHT OF FACTORS ALREADY ADVERTED TO
I CANNOT PERCEIVE HOW SUCH A DUTY COULD BE FOUND TO EXIST.  TO UPHOLD
FLORIDA'S CLAIM ON ANY SUCH THEORY WOULD BE NOVEL DOCTRINE INDEED,
PARTICULARLY WHERE PROPERTY RIGHTS OF THE UNITED STATES ARE INVOLVED. 
CF. UNITED STATES V. CALIFORNIA, SUPRA, AT 39-40.  MOREOVER, TO SAY
THAT SUCH A DUTY EXISTED SEEMS TO ME TO MISCONCEIVE THE NATURE OF THE
"APPROVAL" OF THE CONSTITUTIONS OF THE SECEDED STATES CONTEMPLATED BY
THE RECONSTRUCTION STATUTES.  SUCH APPROVAL WAS NOT OF THE SORT
INVOLVED IN THE CASE OF A CONSTITUTION SUBMITTED TO A CONSTITUTIONAL
CONVENTION FOR ADOPTION OR RATIFICATION, WHERE THE FAILURE TO REJECT A
PARTICULAR PROVISION WOULD BE EQUIVALENT TO ITS ACCEPTANCE.  INSTEAD,
THE WHOLE TENOR OF THE RECONSTRUCTION DEBATES CLEARLY SHOWS THAT ALL
THAT WAS MEANT BY "APPROVAL" WAS THAT BEFORE ANY SECEDED STATE WAS
RESTORED TO REPRESENTATION, CONGRESS MUST BE SATISFIED THAT ITS
CONSTITUTION HAD BEEN PROPERLY ADOPTED AND WAS REPUBLICAN IN ITS
GENERAL STRUCTURE.  THAT KIND OF A REQUIREMENT OF "APPROVAL" DOES NOT
LEND ITSELF TO THE CONCLUSION THAT THIS COURT WOULD BE ATTRIBUTING TO
THE 1868 CONGRESS A "DECEPTIVE SUBTLETY" UNLESS IT REGARDS SILENCE UPON
FLORIDA'S BOUNDARY PROVISION AS TANTAMOUNT TO ITS ACCEPTANCE. 
ESPECIALLY SO, WHEN THAT PROVISION WAS QUITE OUTSIDE THE REALM OF
MATTERS UPON WHICH CONGRESS HAD BEEN CALLED UPON TO ACT.  "GREAT ACTS
OF STATE" THESE EVENTS OF THE RECONSTRUCTION PERIOD WERE INDEED, BUT I
DO NOT THINK THEY CAN NOW BE TAKEN AS HAVING ENCOMPASSED ACCEPTANCE OF
THE TERRITORIAL PRETENSIONS OF ANY PARTICULAR STATE. 

IN SUM, I BELIEVE THE CONCLUSION INESCAPABLE THAT ALL THAT CONGRESS
CAN PROPERLY BE TAKEN TO HAVE DONE IN READMITTING FLORIDA WAS TO
DECLARE THAT NOTHING IN THE STATE'S NEW CONSTITUTION DISQUALIFIED ITS
SENATORS AND REPRESENTATIVES FROM TAKING THEIR SEATS IN CONGRESS. 
WHILE SUCH ACTION MAY IN SOME ABSTRACT SENSE HAVE CONSTITUTED
"APPROVAL" OF FLORIDA'S BOUNDARY PROVISION, SINCE IT WAS INCLUDED IN
ITS CONSTITUTION, IN MY OPINION IT DID NOT REPRESENT THE SORT OF
ADVERTENT, AFFIRMATIVE CONGRESSIONAL ACTION WHICH LEGALLY WOULD HAVE
BEEN NECESSARY TO EFFECTUATE AN ACTUAL CHANGE IN FLORIDA'S ORIGINAL
ADMISSION BOUNDARY.  IT THEREFORE DID NOT "APPROVE" FLORIDA'S THREE
LEAGUE BOUNDARY WITHIN THE ONLY SENSE CONTEMPLATED BY THE SUBMERGED
LANDS ACT. 

              II. 

IT IS CLEAR THAT THE STATE FARES NO BETTER ON ITS ALTERNATIVE CLAIM,
BASED UPON ITS ORIGINAL ADMISSION BOUNDARY.  SINCE THE COURT DOES NOT
REACH THIS CLAIM, IT WILL BE ENOUGH TO STATE BRIEFLY THE REASONS WHICH
REQUIRE ITS REJECTION. 

THE TERRITORY WHICH NOW COMPRISES THE STATE OF FLORIDA WAS ORIGINALLY
ACQUIRED BY ENGLAND FROM FRANCE AND SPAIN BY THE TREATY OF PARIS OF
FEBRUARY 10, 1763.  (FN7)  BY THE PROCLAMATION OF OCTOBER 7, 1763,
(FN8) KING GEORGE III DIVIDED THE ACQUIRED TERRITORY INTO EAST AND WEST
FLORIDA.  EAST FLORIDA WAS DECLARED TO BE "BOUNDED TO THE WESTWARD BY
THE GULF OF MEXICO AND THE APALACHICOLA RIVER  ...  AND TO THE EAST AND
SOUTH BY THE ATLANTIC OCEAN AND THE GULF OF FLORIDA, INCLUDING ALL
ISLANDS WITHIN SIX LEAGUES OF THE SEA COAST."  WEST FLORIDA WAS
DECLARED TO BE "BOUNDED TO THE SOUTHWARD BY THE GULF OF MEXICO,
INCLUDING ALL ISLANDS WITHIN SIX LEAGUES OF THE COAST, FROM THE RIVER
APALACHICOLA TO LAKE PONTCHARTRAIN  ...  ." 

BY THE TREATY OF VERSAILLES OF SEPTEMBER 3, 1783, ENGLAND CEDED TO
SPAIN THE TERRITORY DESCRIBED MERELY AS "EAST FLORIDA, AS ALSO WEST
FLORIDA."  (FN9)  BY THE TREATY OF AMITY, SETTLEMENT, AND LIMITS OF
FEBRUARY 22, 1819, SPAIN CEDED TO THE UNITED STATES "ALL THE
TERRITORIES WHICH BELONG TO SPAIN, SITUATED TO THE EASTWARD OF THE
MISSISSIPPI, KNOWN BY THE NAME OF EAST AND WEST FLORIDA."  (FN10)  BOTH
THE ACT ESTABLISHING FLORIDA AS A TERRITORY, (FN11) AND THE ACT
ADMITTING IT TO THE UNION, (FN12) DESCRIBE IT IN TERMS OF THE
TERRITORIES OF EAST AND WEST FLORIDA CEDED BY THE TREATY OF 1819. 

FLORIDA CONTENDS THAT THE PROVISION IN KING GEORGE'S PROCLAMATION
RELATING TO ALL ISLANDS WITHIN SIX LEAGUES OF THE COAST WAS AN
ASSERTION OF A TERRITORIAL BOUNDARY AT THAT DISTANCE ALONG THE ENTIRE
COAST, AND THAT SUBSEQUENT CONVEYANCES NECESSARILY INCORPORATED THAT
DESCRIPTION.  THE OPINION OF THE COURT RELATING TO LOUISIANA,
MISSISSIPPI, AND ALABAMA DISPOSES OF THAT CONTENTION (ANTE, PP. 66-82),
AND WHAT HAS BEEN SAID THERE NEED NOT BE REPEATED HERE. 

FLORIDA ALSO RELIES ON MANY OF THE SAME TREATIES AS DOES LOUISIANA TO
SHOW THAT THIS COUNTRY'S PREDECESSORS IN TITLE CLAIMED LARGE AMOUNTS OF
TERRITORIAL SEA.  WITHOUT ELABORATING ON WHAT HAS ALREADY BEEN SAID
(ANTE, PP. 73-74), IT IS SUFFICIENT TO POINT OUT HERE THAT THESE
TREATIES DID NOT CONSTITUTE TERRITORIAL ASSERTIONS, BUT MERELY
ESTABLISHED OBLIGATIONS BETWEEN THE PARTIES OF A SPECIAL AND LIMITED
NATURE, AND VARIED SO WIDELY IN THE DISTANCES SPECIFIED AS NOT TO BE OF
ANY VALUE WHATEVER IN SHOWING A UNIFORM PRACTICE. 

I WOULD GRANT THE GOVERNMENT'S MOTION FOR JUDGMENT AS TO FLORIDA. 

FN1  MORE IS REQUIRED OF TEXAS IN THIS CASE BECAUSE OF THE MANNER IN
WHICH THE JOINT RESOLUTION ADMITTING TEXAS TO THE UNION WAS DRAWN.  SEE
THE COURT'S OPINION RELATING TO THE OTHER STATES, ANTE, PP. 44-47. 

FN2  IN BOTH CASES, THE DESCRIPTION OF THE BOUNDARY FIXED FOR THE
STATE BY THE EVENT OF ADMISSION WAS AGREED UPON - THE 37TH PARALLEL IN
THE TEXAS CASE, AND THE MIDDLE OF THE CHANNEL OF THE RIO GRANDE IN THE
COLORADO CASE.  THE ACTUAL PHYSICAL LOCATION OF THOSE RESPECTIVE
BOUNDARIES, HOWEVER, WAS IN DISPUTE.  IN THE FORMER, THE COURT HELD
THAT THE LOCATION OF THE BOUNDARY WAS FIXED BY THE EVENT OF ADMISSION
IN ACCORDANCE WITH A SURVEY OF THE 37TH PARALLEL WHICH HAD BEEN
THERETOFORE MADE, EVEN THOUGH IT MIGHT NOT HAVE BEEN A CORRECT SURVEY. 
IN THE LATTER CASE, IT HELD THAT SINCE THE LOCATION OF THE RIO GRANDE'S
CHANNEL IN 1850 HAD BEEN CONTINUOUSLY ACCEPTED AS THE LOCATION OF NEW
MEXICO'S BOUNDARY PRIOR TO STATEHOOD, AND HAD BEEN SO SPECIFIED IN ITS
CONSTITUTION WHEN ADMITTED TO THE UNION, THAT BECAME THE LOCATION OF
THE STATE'S BOUNDARY. 

FN3  IN PERTINENT PART THE ACT READS: 

"WHEREAS THE PEOPLE OF NORTH CAROLINA, SOUTH CAROLINA, LOUISIANA,
GEORGIA, ALABAMA, AND FLORIDA HAVE, IN PURSUANCE OF THE PROVISIONS OF
AN ACT ENTITLED 'AN ACT FOR THE MORE EFFICIENT GOVERNMENT OF THE REBEL
STATES,' PASSED MARCH SECOND, EIGHTEEN HUNDRED AND SIXTY-SEVEN, AND THE
ACTS SUPPLEMENTARY THERETO (SEE NOTE 4, POST), FRAMED CONSTITUTIONS OF
STATE GOVERNMENT WHICH ARE REPUBLICAN, AND HAVE ADOPTED SAID
CONSTITUTIONS BY LARGE MAJORITIES OF THE VOTES CAST AT THE ELECTIONS
HELD FOR THE RATIFICATION OR REJECTION OF THE SAME: 

THEREFORE: 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT EACH OF THE STATES
OF NORTH CAROLINA, SOUTH CAROLINA, LOUISIANA, GEORGIA, ALABAMA, AND
FLORIDA, SHALL BE ENTITLED AND ADMITTED TO REPRESENTATION IN CONGRESS
AS A STATE OF THE UNION WHEN THE LEGISLATURE OF SUCH STATE SHALL HAVE
DULY RATIFIED THE AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
PROPOSED BY THE THIRTY-NINTH CONGRESS, AND KNOWN AS ARTICLE FOURTEEN,
UPON THE FOLLOWING FUNDAMENTAL CONDITIONS:  THAT THE CONSTITUTIONS OF
NEITHER OF SAID STATES SHALL EVER BE SO AMENDED OR CHANGED AS TO
DEPRIVE ANY CITIZEN OR CLASS OF CITIZENS OF THE UNITED STATES OF THE
RIGHT TO VOTE IN SAID STATE, WHO ARE ENTITLED TO VOTE BY THE
CONSTITUTION THEREOF HEREIN RECOGNIZED, EXCEPT AS A PUNISHMENT FOR SUCH
CRIMES AS ARE NOW FELONIES AT COMMON LAW, WHEREOF THEY SHALL HAVE BEEN
DULY CONVICTED UNDER LAWS EQUALLY APPLICABLE TO ALL THE INHABITANTS OF
SAID STATE:  PROVIDED, THAT ANY ALTERATION OF SAID CONSTITUTION MAY BE
MADE WITH REGARD TO THE TIME AND PLACE OF RESIDENCE OF VOTERS; AND THE
STATE OF GEORGIA SHALL ONLY BE ENTITLED AND ADMITTED TO REPRESENTATION
UPON THIS FURTHER FUNDAMENTAL CONDITION:  THAT THE FIRST AND THIRD
SUBDIVISIONS OF SECTION SEVENTEEN OF THE FIFTH ARTICLE OF THE
CONSTITUTION OF SAID STATE, EXCEPT THE PROVISO TO THE FIRST
SUBDIVISION, SHALL BE NULL AND VOID, AND THAT THE GENERAL ASSEMBLY OF
SAID STATE BY SOLEMN PUBLIC ACT SHALL DECLARE THE ASSENT OF THE STATE
TO THE FOREGOING FUNDAMENTAL CONDITION." 

FN4  RELIANCE IS PLACED ON THE ACT OF MARCH 2, 1867, 14 STAT. 428,
PROVIDING FOR A STATE'S READMISSION WHEN, AMONG OTHER THINGS, ITS
"CONSTITUTION SHALL HAVE BEEN SUBMITTED TO CONGRESS FOR EXAMINATION AND
APPROVAL, AND CONGRESS SHALL HAVE APPROVED THE SAME  ...  ."  I FIND
NOTHING IN THIS PROVISION, OR IN THOSE OF ANY OF THE OTHER SO-CALLED
RECONSTRUCTION LEGISLATION, ACT OF MARCH 23, 1867, 15 STAT. 2; ACT OF
JULY 19, 1867, 15 STAT. 14; ACT OF MARCH 11, 1868, 15 STAT. 41, WHICH
WARRANTS THE CONCLUSION THAT THE CONSTITUTIONS OF THE READMITTED STATES
WERE TO BE "APPROVED" BY CONGRESS, EXCEPT IN THE SENSE THAT CONGRESS
MUST BE SATISFIED THAT THEY HAD BEEN DULY ADOPTED AND WERE REPUBLICAN
IN FORM. 

FN5  THE FOLLOWING EXCERPTS FROM THE CONGRESSIONAL DEBATES ARE
TYPICAL OF MANY OTHERS:  "NOW, SIR, WHAT IS THE PARTICULAR QUESTION WE
ARE CONSIDERING?  FIVE OR SIX STATES HAVE HAD SUBMITTED TO THEM THE
QUESTION OF FORMING CONSTITUTIONS FOR THEIR OWN GOVERNMENT.  THEY HAVE
VOLUNTARILY FORMED SUCH CONSTITUTIONS, UNDER THE DIRECTION OF THE
GOVERNMENT OF THE UNITED STATES.  THEY HAVE SENT THOSE CONSTITUTIONS
HERE  ...  .  WE HAVE LOOKED AT THEM; WE HAVE PRONOUNCED THEM
REPUBLICAN IN FORM; AND ALL WE PROPOSE TO REQUIRE IS THAT THEY SHALL
REMAIN SO FOREVER.  SUBJECT TO THIS REQUIREMENT, WE ARE WILLING TO
ADMIT THEM INTO THE UNION."  REPRESENTATIVE STEVENS OF PENNSYLVANIA,
CONG. GLOBE, 40TH CONG., 2D SESS. 2465.    "ALL PREVIOUS FUNDAMENTAL
CONDITIONS IMPOSED UPON A STATE BEING ADMITTED INTO THE UNION HAVE BEEN
UPON ONE OF TWO GROUNDS, EITHER THAT THE CLAUSE IN THE STATE
CONSTITUTION OBJECTED TO WAS IN VIOLATION OF THE CONSTITUTION OF THE
UNITED STATES, OR THAT IT AFFECTED SOME GREAT, MATERIAL RIGHT, WITHOUT
WHICH THE GOVERNMENT WOULD NOT BE REPUBLICAN IN FORM  ...  . 
*     *         *         *         * 

"WHEN WE GO BEYOND SECURING THE ENFORCEMENT OF THE GUARANTY OF
REPUBLICAN GOVERNMENT, WHICH WE HAVE THE POWER TO DO, WHEN WE UNDERTAKE
TO LEGISLATE FOR THEM UPON MATTERS ON WHICH THEY HAVE PASSED, WE
TRANSCEND OUR BOUNDS."  SENATOR SHERMAN OF OHIO, CONG. GLOBE, 40TH
CONG., 2D SESS. 2968, 2969. 

FN6  IN PASSING THE SUBMERGED LANDS ACT, CONGRESS SEEMS TO HAVE
ASSUMED THAT IT HAS ALWAYS HAD THE POWER SO TO CHANGE A STATE'S
BOUNDARY, PROVIDED THE STATE CONSENTS.  FOR PURPOSES OF THIS CASE, WE
NEED NOT STOP TO INQUIRE AS TO THE SOURCE OF THE ASSUMED POWER.  IT IS
SUFFICIENT TO SAY THAT, WHATEVER MAY BE THE POWER OF CONGRESS TO CHANGE
BOUNDARIES AS A GENERAL MATTER, CONGRESS CLEARLY HAS THE POWER TO
CHANGE BOUNDARIES, WITH A STATE'S CONSENT, TO THE EXTENT THAT SUCH A
CHANGE AFFECTS ONLY THE EXERCISE OF PROPERTY RIGHTS AS BETWEEN STATE
AND NATION. 

FN7  15 PARLIAMENTARY HISTORY OF ENGLAND 1291, 1296, 1301. 

FN8  2 WHITE, A NEW COLLECTION OF LAWS, CHARTERS AND LOCAL ORDINANCES
OF GREAT BRITAIN, FRANCE AND SPAIN (1839), 292. 

FN9  39 JOURNAL OF THE HOUSE OF COMMONS 722, 723. 

FN10  8 STAT. 252, 254.  THE TREATY ALSO PROVIDED:  "THE ADJACENT
ISLANDS DEPENDENT ON SAID PROVINCES, ALL PUBLIC LOTS AND SQUARES,
VACANT LANDS, PUBLIC EDIFICES, FORTIFICATIONS, BARRACKS, AND OTHER
BUILDINGS, WHICH ARE NOT PRIVATE PROPERTY, ARCHIVES AND DOCUMENTS,
WHICH RELATE DIRECTLY TO THE PROPERTY AND SOVEREIGNTY OF SAID
PROVINCES, ARE INCLUDED IN THIS ARTICLE." 

FN11  3 STAT. 654. 

FN12  5 STAT. 742. 
..END :









SENIOR V. ZONING COMMISSION OF NEW CANAAN 363 U.S. 143 


NO. 620.  DECIDED MAY 31, 1960.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  146 CONN. 531, 153
A.2D 415. 


SENIOR V. ZONING COMMISSION OF NEW CANAAN. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















GARFINKLE V. GARFINKLE 363 U.S. 143 


NO. 799, MISC.  DECIDED MAY 31, 1960.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 29 N.J. 506, 150 A.2D 291. 


GARFINKLE V. GARFINKLE. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















UNITED STATES V. LOUISIANA 364 U.S. 502 


NO. 10, ORIGINAL.  DECIDED MAY 31, 1960 - FINAL DECREE ENTERED DECEMBER
12, 1960 - OPINIONS REPORTED:  363 U.S. 1, 121. 


THIS COURT HAVING STATED ITS CONCLUSIONS IN ITS OPINIONS ANNOUNCED ON
MAY 31, 1960, AS TO THE RESPECTIVE RIGHTS OF THE UNITED STATES AND THE
STATES OF LOUISIANA, TEXAS, MISSISSIPPI, ALABAMA AND FLORIDA, UNDER THE
SUBMERGED LANDS ACT, IN THE LANDS, MINERALS AND OTHER NATURAL RESOURCES
UNDERLYING THE WATERS OF THE GULF OF MEXICO OFF THE COASTS OF SUCH
STATES, AND HAVING CONSIDERED THE POSITIONS OF THE RESPECTIVE PARTIES
AS TO THE TERMS OF A DECREE, NOW ENTERS ITS FINAL DECREE IN THE CASE. 

UNITED STATES V. LOUISIANA ET AL.

      FINAL DECREE. 

THIS CAUSE HAVING COME ON TO BE HEARD ON THE MOTION OF THE PLAINTIFF
FOR JUDGMENT AND TO DISMISS THE CROSS-BILL OF THE STATE OF ALABAMA, AND
HAVING BEEN ARGUED BY COUNSEL, AND THIS COURT HAVING STATED ITS
CONCLUSIONS IN ITS OPINIONS ANNOUNCED ON MAY 31, 1960, 363 U.S. 1, 121,
AND HAVING CONSIDERED THE POSITIONS OF THE RESPECTIVE PARTIES AS TO THE
TERMS OF THIS DECREE, IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 

1.  AS AGAINST THE RESPECTIVE DEFENDANT STATES, THE UNITED STATES IS
ENTITLED TO ALL THE LANDS, MINERALS AND OTHER NATURAL RESOURCES
UNDERLYING THE GULF OF MEXICO MORE THAN THREE GEOGRAPHIC MILES SEAWARD
FROM THE COAST LINES OF LOUISIANA, MISSISSIPPI AND ALABAMA, AND MORE
THAN THREE LEAGUES SEAWARD FROM THE COAST LINES OF TEXAS AND FLORIDA,
AND EXTENDING SEAWARD TO THE EDGE OF THE CONTINENTAL SHELF.  NONE OF
THE STATES OF LOUISIANA, TEXAS, MISSISSIPPI, ALABAMA OR FLORIDA IS
ENTITLED TO ANY INTEREST IN SUCH LANDS, MINERALS OR RESOURCES, AND EACH
OF SAID STATES, THEIR PRIVIES, ASSIGNS, LESSEES AND OTHER PERSONS
CLAIMING UNDER ANY OF THEM ARE HEREBY ENJOINED FROM INTERFERING WITH
THE RIGHTS OF THE UNITED STATES IN SUCH LANDS, MINERALS AND RESOURCES. 
AS USED IN THIS DECREE, THE TERM "COAST LINE" MEANS THE LINE OF
ORDINARY LOW WATER ALONG THAT PORTION OF THE COAST WHICH IS IN DIRECT
CONTACT WITH THE OPEN SEA AND THE LINE MARKING THE SEAWARD LIMIT OF
INLAND WATERS. 

2.  AS AGAINST THE UNITED STATES, THE DEFENDANT STATES ARE
RESPECTIVELY ENTITLED TO ALL LANDS, MINERALS AND OTHER NATURAL
RESOURCES UNDERLYING THE GULF OF MEXICO, EXTENDING SEAWARD FROM THEIR
COAST LINES FOR A DISTANCE OF THREE LEAGUES IN THE CASE OF TEXAS AND
FLORIDA AND THREE GEOGRAPHIC MILES IN THE CASE OF LOUISIANA,
MISSISSIPPI AND ALABAMA, AND THE UNITED STATES IS NOT ENTITLED, AS
AGAINST ANY OF SUCH STATES, TO ANY INTEREST IN SUCH LANDS, MINERALS OR
RESOURCES, WITH THE EXCEPTIONS PROVIDED BY SEC. 5 OF THE SUBMERGED
LANDS ACT, 43 U.S.C. SEC. 1313. 

3.  WHENEVER THE LOCATION OF THE COAST LINE OF ANY OF THE DEFENDANT
STATES SHALL BE AGREED UPON OR DETERMINED, SUCH STATE SHALL THEREUPON
PROMPTLY RENDER TO THE UNITED STATES A TRUE, FULL, ACCURATE AND
APPROPRIATE ACCOUNT OF ANY AND ALL SUMS OF MONEY DERIVED BY SUCH STATE
SINCE JUNE 5, 1950, EITHER BY SALE, LEASING, LICENSING, EXPLOITATION OR
OTHERWISE FROM OR ON ACCOUNT OF ANY OF THE LANDS OR RESOURCES DESCRIBED
IN PARAGRAPH 1 HEREOF WHICH LIE OPPOSITE TO SUCH COAST LINE SO AGREED
UPON OR DETERMINED, AND, AFTER SAID ACCOUNT HAS BEEN RENDERED AND FILED
WITH AND APPROVED BY THE COURT, SHALL PROMPTLY PAY TO THE UNITED STATES
A SUM EQUAL TO SUCH AMOUNTS SHOWN BY SAID ACCOUNT AS SO DERIVED BY SAID
STATE; PROVIDED, HOWEVER, THAT AS TO THE STATE OF LOUISIANA THE
ALLOCATION, WITHDRAWAL AND PAYMENT OF ANY FUNDS NOW IMPOUNDED UNDER THE
INTERIM AGREEMENT BETWEEN THE UNITED STATES AND THE STATE OF LOUISIANA,
DATED OCTOBER 12, 1956, SHALL, SUBJECT TO THE TERMS HEREOF, BE MADE IN
ACCORDANCE WITH THE APPROPRIATE PROVISIONS OF SAID AGREEMENT. 

4.  THE CROSS-BILL OF THE STATE OF ALABAMA IS DISMISSED. 

5.  ALL MOTIONS TO TAKE DEPOSITIONS AND PRESENT EVIDENCE ARE DENIED
WITHOUT PREJUDICE TO THEIR RENEWAL IN SUCH FURTHER PROCEEDINGS AS MAY
BE HAD IN CONNECTION WITH MATTERS LEFT OPEN BY THIS DECREE. 

6.  THE MOTION OF THE STATE OF TEXAS FOR SEVERANCE IS DISMISSED. 

7.  THE MOTION OF THE STATE OF LOUISIANA TO TRANSFER THE CASE TO A
DISTRICT COURT IS DENIED. 

8.  JURISDICTION IS RESERVED BY THIS COURT TO ENTERTAIN SUCH FURTHER
PROCEEDINGS, ENTER SUCH ORDERS AND ISSUE SUCH WRITS AS MAY FROM TIME TO
TIME BE DEEMED NECESSARY OR ADVISABLE TO GIVE PROPER FORCE AND EFFECT
TO THIS DECREE. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK TOOK NO PART IN THE
FORMULATION OF THIS DECREE. 
..END :











UNITED STATES V. LOUISIANA 382 U.S. 288 


NO. 9, ORIGINAL.  DECIDED MAY 31, 1960.  - FINAL DECREE ENTERED DECEMBER
12, 1960.  - SUPPLEMENTAL DECREE ENTERED DECEMBER 13, 1965.  - OPINION
REPORTED:  363 U.S. 1; FINAL DECREE REPORTED: 364 U.S. 502. 


THE MOTION BY THE UNITED STATES FOR THE ENTRY OF A SUPPLEMENTAL DECREE
IS GRANTED AND A SUPPLEMENTAL DECREE IS ENTERED. 

UNITED STATES V. LOUISIANA ET AL. 

SUPPLEMENTAL DECREE. 

FOR THE PURPOSE OF GIVING EFFECT TO THE CONCLUSIONS OF THIS COURT AS
STATED IN ITS OPINION, ANNOUNCED MAY 31, 1960, AND THE DECREE ENTERED
BY THIS COURT ON DECEMBER 12, 1960, IT IS ORDERED, ADJUDGED AND DECREED
AS FOLLOWS: 

1.  AS AGAINST THE DEFENDANT STATE OF LOUISIANA, THE UNITED STATES IS
ENTITLED TO ALL THE LANDS, MINERALS AND OTHER NATURAL RESOURCES
UNDERLYING THE GULF OF MEXICO, SOUTH OF GRID LINE Y 499,394.40 ON THE
LOUISIANA PLANE COORDINATE SYSTEM, SOUTH ZONE, THAT ARE MORE THAN THREE
GEOGRAPHICAL MILES SEAWARD FROM A LINE DESCRIBED AS FOLLOWS
(COORDINATES REFER TO THE LOUISIANA PLANE COORDINATE SYSTEM, SOUTH
ZONE): 

BEGINNING AT THE POINT WHERE GRID LINE Y 499,394.40 INTERSECTS THE
LINE OF MEAN LOW WATER ON THE EASTERN SIDE OF CHANDELEUR ISLAND, THENCE
SOUTHERLY ALONG THE LINE OF MEAN LOW WATER ON THE EASTERN SIDE OF THE
CHANDELEUR ISLANDS, AND BY STRAIGHT LINES ACROSS CHANNELS BETWEEN THE
ISLANDS, TO THE SOUTHWESTERNMOST EXTREMITY OF ERROL SHOAL, AT LATITUDE
29 DEGREES 35 MIN. 48 SECONDS N., LONGITUDE 89 DEGREES 00 MIN. 48
SECONDS W. (X 2,737,287.96, Y 345,654.41); THENCE TO PASS A LOUTRE
LIGHTED WHISTLE BUOY 4, AT LATITUDE 29 DEGREES 09 MIN. 55.9 SECONDS N.,
LONGITUDE 88 DEGREES 56 MIN. 54.4 SECONDS W. (X 2,761,169.19, Y
189,334.14); THENCE TO SOUTH PASS LIGHTED WHISTLE BUOY 2, AT LATITUDE
28 DEGREES 58 MIN. 44.9 SECONDS N., LONGITUDE 89 DEGREES 06 MIN. 36.9
SECONDS W. (X 2,710,848.37, Y 120,529.25); THENCE TO SOUTHWEST PASS
ENTRANCE MID-CHANNEL LIGHTED WHISTLE BUOY, AT LATITUDE 28 DEGREES 52
MIN. 37.1 SECONDS N., LONGITUDE 89 DEGREES 25 MIN. 57.1 SECONDS W. (X
2,608,424.04, Y 81,526.86); THENCE TO SHIP SHOAL LIGHTHOUSE AT LATITUDE
28 DEGREES 54 MIN. 51.512 SECONDS N., LONGITUDE 91 DEGREES 04 MIN.
15.985 SECONDS W. (X 2,083,908.09, Y 90,154.12); THENCE TO CALCASIEU
PASS LIGHTED WHISTLE BUOY 1, AT LATITUDE 29 DEGREES 36 MIN. 21.7
SECONDS N., LONGITUDE 93 DEGREES 19 MIN. 07.6 SECONDS W. (X
1,369,080.08, Y 347,060.52); THENCE TO SABINE PASS LIGHTED WHISTLE BUOY
1, AT LATITUDE 29 DEGREES 36 MIN. 16 SECONDS N., LONGITUDE 93 DEGREES
48 MIN. 31.2 SECONDS W. (X 1,213,416.18, Y 349,514.72). 

2.  THE STATE OF LOUISIANA IS NOT ENTITLED TO ANY INTEREST IN THE
LANDS, MINERALS OR RESOURCES DESCRIBED IN PARAGRAPH 1 HEREOF, AND SAID
STATE, ITS PRIVIES, ASSIGNS, LESSEES AND OTHER PERSONS CLAIMING UNDER
IT ARE HEREBY ENJOINED FROM INTERFERING WITH THE RIGHTS OF THE UNITED
STATES IN SUCH LANDS, MINERALS AND RESOURCES. 

3.  WITH THE EXCEPTIONS PROVIDED BY SEC. 5 OF THE SUBMERGED LANDS
ACT, 67 STAT. 32, 43 U.S.C. SEC 1313 (1964 ED.), THE STATE OF LOUISIANA
IS ENTITLED, AS AGAINST THE UNITED STATES, TO ALL THE LANDS, MINERALS
AND OTHER NATURAL RESOURCES IN THE PORTIONS OF THE DISPUTED AREA
DESCRIBED IN THIS PARAGRAPH.  THESE PORTIONS OF THE DISPUTED AREA ARE
BOUNDED ON THE LANDWARD SIDE BY THE SEAWARD BOUNDARY OF ZONE 1, AS
DELINEATED ON EXHIBIT A TO THE PARTIES' INTERIM AGREEMENT OF OCTOBER
12, 1956, AS AMENDED, ON FILE WITH THE COURT.  THEY ARE BOUNDED ON THE
SEAWARD SIDE BY LINES THREE GEOGRAPHICAL MILES SEAWARD FROM BASELINES
AS HEREIN DESCRIBED, CONSISTING OF (1) SEGMENTS OF, OR SALIENT POINTS
ON, THE LINE OF MEAN LOW WATER ON THE MAINLAND, ON NATURALLY FORMED
ISLANDS, OR ON NATURALLY FORMED LOW-TIDE ELEVATIONS SITUATED WHOLLY OR
PARTLY WITHIN THREE GEOGRAPHICAL MILES FROM THE LOW-WATER LINE ON THE
MAINLAND OR ON SUCH ISLANDS, AND (2) STRAIGHT LINES ACROSS DESIGNATED
OPENINGS IN THE LOW-WATER LINE.  AS USED HEREIN, "SALIENT POINT" MEANS
ANY POINT ON THE LOW-WATER LINE, SO SITUATED THAT THERE IS SOME AREA
WITHIN THREE GEOGRAPHICAL MILES SEAWARD FROM SUCH POINT THAT IS MORE
THAN THREE GEOGRAPHICAL MILES FROM ALL OTHER POINTS ON THE BASELINE. 
THESE BASELINES ARE AMBULATORY AND SUBJECT TO CONTINUAL MODIFICATION BY
NATURAL OR ARTIFICIAL CHANGES IN THE SHORE LINE TO THE EXTENT THE LAW
MAY PROVIDE, BUT FOR PURPOSES OF PRESENT IDENTIFICATION AND PRACTICAL
ADMINISTRATION UNTIL NOTICE BY EITHER PARTY TO THE OTHER THEY ARE
DESCRIBED HEREIN BY THEIR COORDINATES IN THE LOUISIANA PLANE COORDINATE
SYSTEM, SOUTH ZONE, AS SHOWN BY EXHIBITS 1 TO 4, INCLUSIVE, FILED WITH
THE MOTION OF THE UNITED STATES HEREIN.  EACH THREE-MILE LINE IS TO BE
DRAWN IN SUCH MANNER THAT EVERY POINT ON THE THREE-MILE LINE IS EXACTLY
THREE GEOGRAPHICAL MILES FROM THE NEAREST POINT OR POINTS ON THE
BASELINE, CONTINUING IN EACH DIRECTION UNTIL IT MEETS ANOTHER SPECIFIED
BOUNDARY OF THE PARTICULAR PORTION OF THE DISPUTED AREA.  THE PORTIONS
OF THE DISPUTED AREA REFERRED TO HEREIN ARE AS FOLLOWS: 

(A)  IN THE VICINITY OF CALCASIEU PASS, ALL THAT PORTION OF THE
DISPUTED AREA BOUNDED ON THE LANDWARD SIDE BY THE SEAWARD BOUNDARY OF
ZONE 1, AND BOUNDED ON THE SEAWARD SIDE BY A LINE THREE GEOGRAPHICAL
MILES SEAWARD FROM THE TIP OF THE WESTERN JETTY, AT X 1,362,416, Y
397,822; FROM THE TIP OF THE EASTERN JETTY, AT X 1,363,392, Y 397,870;
AND FROM A STRAIGHT LINE BETWEEN SAID POINTS. 

(B)  IN THE VICINITY OF MARSH ISLAND AND ATCHAFALAYA BAY, ALL THAT
PORTION OF THE DISPUTED AREA BOUNDED ON THE LANDWARD SIDE BY THE
SEAWARD BOUNDARY OF ZONE 1, AND BOUNDED ON THE SEAWARD SIDE BY A LINE
THREE GEOGRAPHICAL MILES SEAWARD FROM SALIENT POINTS ON ISLANDS AND LOW
TIDE ELEVATIONS AT X 1,778,769, Y 324,757; X 1,782,391, Y 321,876; X
1,783,067, Y 321,331; X 1,791,584, Y 307,545; X 1,809,845, Y 296,285; X
1,820,994, Y 291,804; X 1,833,527, Y 271,423; X 1,834,019, Y 270,301; X
1,835,344, Y 270,839; X 1,843,467, Y 275,912; X 1,844,320, Y 278,858; X
1,875,200, Y 285,729; AND X 1,877,583, Y 283,274; THREE GEOGRAPHICAL
MILES SEAWARD FROM A STRAIGHT LINE BETWEEN SOUTH POINT, MARSH ISLAND,
AT X 1,863,474, Y 298,772, AND POINT AU FER, AT X 1,993,420, Y 241,930;
AND THREE GEOGRAPHICAL MILES SEAWARD FROM A SALIENT POINT ON A LOW-TIDE
ELEVATION AT X 1,987,371, Y 241,272. 

(C)  IN EAST BAY, ALL THAT PORTION OF THE DISPUTED AREA BOUNDED ON
THE LANDWARD SIDE BY THE SEAWARD BOUNDARY OF ZONE 1, AND BOUNDED ON THE
SEAWARD SIDE BY A LINE THREE GEOGRAPHICAL MILES SEAWARD FROM SALIENT
POINTS ON THE MEAN LOW-WATER LINE AT X 2,639,545, Y 126,825; X
2,641,835, Y 129,725; AND X 2,644,940, Y 134,910, AND FROM THE LINE OF
MEAN LOW WATER WHICH MAY BE CONSIDERED TO CONSIST OF STRAIGHT LINES
BETWEEN SAID POINTS; THREE GEOGRAPHICAL MILES SEAWARD FROM A SALIENT
POINT ON A LOW-TIDE ELEVATION AT X 2,672,315, Y 141,745; THREE
GEOGRAPHICAL MILES SEAWARD FROM THE LINE OF MEAN LOW WATER WHICH MAY BE
CONSIDERED TO CONSIST OF STRAIGHT LINES BETWEEN THE POINTS X 2,673,482,
Y 141,245; X 2,678,500, Y 139,250; AND X 2,682,605, Y 136,895; AND
THREE GEOGRAPHICAL MILES SEAWARD FROM A SALIENT POINT ON THE MEAN LOW
WATER LINE AT X 2,685,325, Y 133,800. 

(D)  BETWEEN PASS A LOUTRE AND BRETON ISLAND, ALL THAT PORTION OF THE
DISPUTED AREA WEST OF GRID LINE X 2,740,710, BOUNDED ON THE LANDWARD
SIDE BY THE SEAWARD BOUNDARY OF ZONE 1, AND BOUNDED ON THE SEAWARD SIDE
BY A LINE THREE GEOGRAPHICAL MILES SEAWARD FROM SALIENT POINTS ON THE
MAINLAND, ON ISLANDS, OR ON LOW-TIDE ELEVATIONS AT X 2,738,320, Y
210,230; X 2,737,065, Y 210,155; X 2,727,090, Y 209,195; X 2,709,100, Y
220,995; X 2,708,835, Y 221,440; X 2,707,635, Y 223,640; X 2,701,500, Y
232,820; X 2,700,735, Y 234,640; X 2,689,305, Y 250,395; AND X
2,688,235, Y 252,215; AND THREE GEOGRAPHICAL MILES SEAWARD FROM A
STRAIGHT LINE BETWEEN THE EASTERN HEADLAND OF MAIN PASS, AT X
2,681,915, Y 257,755, AND THE SOUTHERN EXTREMITY OF BRETON ISLAND, AT X
2,678,009, Y 294,303. 

4.  THE UNITED STATES IS NOT ENTITLED, AS AGAINST THE STATE OF
LOUISIANA, TO ANY INTEREST IN THE LANDS, MINERALS OR RESOURCES
DESCRIBED IN PARAGRAPH 3 HEREOF, WITH THE EXCEPTIONS PROVIDED BY SEC. 5
OF THE SUBMERGED LANDS ACT, 43 U.S.C. SEC. 1313. 

5.  ALL SUMS NOW HELD IMPOUNDED BY THE UNITED STATES UNDER THE
INTERIM AGREEMENT OF OCTOBER 12, 1956, AS AMENDED, DERIVED FROM OR
ATTRIBUTABLE TO THE LANDS, MINERALS OR RESOURCES DESCRIBED IN PARAGRAPH
1 HEREOF ARE HEREBY RELEASED TO THE UNITED STATES ABSOLUTELY, AND THE
UNITED STATES IS HEREBY RELIEVED OF ANY OBLIGATION UNDER SAID AGREEMENT
TO IMPOUND ANY SUMS HEREAFTER RECEIVED BY IT, DERIVED FROM OR
ATTRIBUTABLE TO SAID LANDS, MINERALS, OR RESOURCES. 

6.  ALL SUMS NOW HELD IMPOUNDED BY THE STATE OF LOUISIANA UNDER THE
INTERIM AGREEMENT OF OCTOBER 12, 1956, AS AMENDED, DERIVED FROM OR
ATTRIBUTABLE TO THE LANDS, MINERALS OR RESOURCES DESCRIBED IN PARAGRAPH
3 HEREOF ARE HEREBY RELEASED TO THE STATE OF LOUISIANA ABSOLUTELY, AND
THE STATE OF LOUISIANA IS HEREBY RELIEVED OF ANY OBLIGATION UNDER SAID
AGREEMENT TO IMPOUND ANY SUMS HEREAFTER RECEIVED BY IT, DERIVED FROM OR
ATTRIBUTABLE TO SAID LANDS, MINERALS OR RESOURCES. 

7.  WITHIN 75 DAYS AFTER THE ENTRY OF THIS DECREE: 

(A)  THE STATE OF LOUISIANA SHALL PAY TO THE UNITED STATES OR OTHER
PERSONS ENTITLED THERETO UNDER THE INTERIM AGREEMENT OF OCTOBER 12,
1956, AS AMENDED, ALL SUMS, IF ANY, NOW HELD IMPOUNDED BY THE STATE OF
LOUISIANA UNDER SAID AGREEMENT, DERIVED FROM OR ATTRIBUTABLE TO THE
LANDS, MINERALS OR RESOURCES DESCRIBED IN PARAGRAPH 1 HEREOF: 

(B)  THE STATE OF LOUISIANA SHALL RENDER TO THE UNITED STATES AND
FILE WITH THE COURT A TRUE, FULL, ACCURATE AND APPROPRIATE ACCOUNT OF
ANY AND ALL OTHER SUMS OF MONEY DERIVED BY THE STATE OF LOUISIANA SINCE
JUNE 5, 1950, EITHER BY SALE, LEASING, LICENSING, EXPLOITATION OR
OTHERWISE FROM OR ON ACCOUNT OF ANY OF THE LANDS, MINERALS OR RESOURCES
DESCRIBED IN PARAGRAPH 1 HEREOF: 

(C)  THE UNITED STATES SHALL PAY TO THE STATE OF LOUISIANA OR OTHER
PERSONS ENTITLED THERETO UNDER THE INTERIM AGREEMENT, AS AMENDED, ALL
SUMS, IF ANY, NOW HELD IMPOUNDED BY THE UNITED STATES UNDER SAID
AGREEMENT, DERIVED FROM OR ATTRIBUTABLE TO THE LANDS, MINERALS OR
RESOURCES DESCRIBED IN PARAGRAPH 3 HEREOF: 

(D)  THE UNITED STATES SHALL RENDER TO THE STATE OF LOUISIANA AND
FILE WITH THE COURT A TRUE, FULL, ACCURATE AND APPROPRIATE ACCOUNT OF
ANY AND ALL OTHER SUMS OF MONEY DERIVED BY THE UNITED STATES EITHER BY
SALE, LEASING, LICENSING, EXPLOITATION OR OTHERWISE FROM OR ON ACCOUNT
OF THE LANDS, MINERALS OR RESOURCES DESCRIBED IN PARAGRAPH 3 HEREOF. 

8.  WITHIN 60 DAYS AFTER RECEIVING THE ACCOUNT PROVIDED FOR BY
PARAGRAPH 7(B) OR 7(D) HEREOF, A PARTY MAY SERVE ON THE OTHER AND FILE
WITH THE COURT ITS OBJECTIONS THERETO.  THEREAFTER EITHER PARTY MAY
FILE SUCH MOTION OR MOTIONS AT SUCH TIME AS MAY BE APPROPRIATE TO HAVE
THE ACCOUNT SETTLED IN CONJUNCTION WITH THE ISSUES CONCERNING THE AREAS
STILL IN DISPUTE.  IF NEITHER PARTY FILES SUCH AN OBJECTION WITHIN 60
DAYS, THEN EACH PARTY SHALL FORTHWITH PAY TO ANY THIRD PERSON ANY
AMOUNT SHOWN BY SUCH ACCOUNTS TO BE PAYABLE BY IT TO SUCH PERSON, AND
THE PARTY WHOSE OBLIGATION TO THE OTHER PARTY IS SHOWN BY SUCH ACCOUNTS
TO BE THE GREATER SHALL FORTHWITH PAY TO THE OTHER PARTY THE NET
BALANCE SO SHOWN TO BE DUE.  IF OBJECTIONS ARE FILED BUT ANY UNDISPUTED
NET BALANCE IS SHOWN WHICH WILL BE DUE FROM ONE PARTY TO THE OTHER
PARTY OR TO ANY THIRD PERSON REGARDLESS OF WHAT MAY BE THE ULTIMATE
RULING ON THE OBJECTIONS, THE PARTY SO SHOWN TO BE UNDER ANY SUCH
OBLIGATION SHALL FORTHWITH PAY EACH SUCH UNDISPUTED BALANCE TO THE
OTHER PARTY OR OTHER PERSON SO SHOWN TO BE ENTITLED THERETO.  THE
PAYMENTS DIRECTED BY PARAGRAPHS 7(A) AND 7(C) HEREOF SHALL BE MADE
IRRESPECTIVE OF THE ACCOUNTING PROVIDED FOR BY PARAGRAPHS 7(B) AND
7(D). 

9.  UNTIL FURTHER ORDER OF THE COURT OR AGREEMENT OF THE PARTIES
FILED WITH THE COURT, BOTH PARTIES SHALL CONTINUE TO RECOGNIZE AS A
SINGLE LEASE FOR ALL PURPOSES ANY EXISTING LEASE NOW BEING ADMINISTERED
UNDER THE INTERIM AGREEMENT OF OCTOBER 12, 1956, AS AMENDED, THAT
COVERS LANDS, MINERALS, OR RESOURCES, PART OF WHICH ARE DESCRIBED IN
PARAGRAPH 1 OR PARAGRAPH 3 HEREOF AND PART OF WHICH REMAIN IN DISPUTE
(INCLUDING ANY EXISTING LEASEHOLD PARTLY IN ZONE 1 AND PARTLY WITHIN
THE AREA CONFIRMED TO THE UNITED STATES BY THIS DECREE); BUT THE PARTY
HEREBY AWARDED PART OF THE LANDS, MINERALS, OR RESOURCES COVERED BY ANY
SUCH LEASE SHALL HEREAFTER ADMINISTER THE LEASE AS TO SUCH LANDS,
MINERALS, OR RESOURCES AS SOLE LESSOR, SHALL BE ENTITLED TO RECEIVE
FROM THE LESSEE ALL PAYMENTS HEREAFTER DUE UNDER SAID LEASE TO THE
EXTENT THAT THEY ARE DERIVED FROM OR ATTRIBUTABLE TO SUCH PART OF THE
LANDS, MINERALS, OR RESOURCES COVERED BY THE LEASE, AND SHALL BE UNDER
NO DUTY TO ACCOUNT FOR OR IMPOUND ANY PAYMENTS SO RECEIVED.  EITHER
PARTY, FOR ITS OWN CONVENIENCE, MAY NEVERTHELESS IMPOUND ANY OR ALL OF
SUCH MONEYS IF IT WISHES TO DO SO, OR MAY TERMINATE SUCH IMPOUNDMENT IN
WHOLE OR IN PART AT ANY TIME, WITHOUT FURTHER ORDER OF THE COURT OR
AGREEMENT OF THE OTHER PARTY.  IN ALL OTHER RESPECTS EACH SUCH LEASE
(INCLUDING ANY EXISTING LEASEHOLD PARTLY IN ZONE 1 AND PARTLY WITHIN
THE AREA CONFIRMED TO THE UNITED STATES BY THIS DECREE) SHALL CONTINUE
TO BE ADMINISTERED AS AT PRESENT. 

10.  NOTHING IN THIS SUPPLEMENTAL DECREE OR THE PROCEEDINGS LEADING
TO IT SHALL PREJUDICE ANY RIGHTS, CLAIMS OR DEFENSES OF THE UNITED
STATES OR OF THE STATE OF LOUISIANA WITH RESPECT TO THE REMAINDER OF
THE DISPUTED AREA OR PAST OR FUTURE PAYMENTS DERIVED THEREFROM OR
ATTRIBUTABLE THERETO OR THE OPERATION OF THE INTERIM AGREEMENT OF
OCTOBER 12, 1956, AS AMENDED, WITH RESPECT TO SUCH AREA AND PAYMENTS. 
11.  THE COURT RETAINS JURISDICTION TO ENTERTAIN SUCH FURTHER
PROCEEDINGS, ENTER SUCH ORDERS AND ISSUE SUCH WRITS AS MAY FROM TIME TO
TIME BE DEEMED NECESSARY OR ADVISABLE TO GIVE PROPER FORCE AND EFFECT
TO THE DECREE OF DECEMBER 12, 1960, HEREIN, OR TO THIS DECREE,
INCLUDING, IF NECESSARY, FURTHER ADJUSTMENTS OF THE ACCOUNTING BETWEEN
THE PARTIES WITH RESPECT TO THE LANDS, MINERALS AND RESOURCES DESCRIBED
IN PARAGRAPH 1 AND PARAGRAPH 3 OF THIS DECREE. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS MOTION OR IN THE FORMULATION OF THIS
DECREE. 
..END :







UNITED STATES V. LOUISIANA, 404 U.S. 388 


       UNITED STATES V. LOUISIANA ET AL.

        (LOUISIANA BOUNDARY CASE)

        NO. 9, ORIG.  DECIDED MAY 31, 1960-- FINAL DECREE ENTERED

           DECEMBER 12, 1960-- SUPPLEMENTAL DECREES ENTERED

           DECEMBER 13, 1965, AND DECEMBER 20, 1971. 


THE MOTION BY THE UNITED STATES FOR THE ENTRY OF A SUPPLEMENTAL
DECREE IS GRANTED (POST, P. 998), AND A SUPPLEMENTAL DECREE IS
ENTERED. 

OPINIONS REPORTED:  363 U.S. 1 AND 394 U.S. 11; FINAL DECREE
REPORTED:  364 U.S. 502; SUPPLEMENTAL DECREE REPORTED:  382 U.S. 288. 

       SUPPLEMENTAL DECREE 

IT APPEARING TO THE COURT THAT ITS OPINION HEREIN OF MARCH 3, 1969,
394 U.S. 11, REJECTED EVERY GROUND ASSERTED BY THE STATE OF LOUISIANA
IN SUPPORT OF ITS CLAIM TO RIGHTS IN THE AREA OF THE CONTINENTAL SHELF
HEREINAFTER DESCRIBED, AND THAT NO ISSUE AS TO SAID AREA IS NOW PENDING
BEFORE THE SPECIAL MASTER APPOINTED HEREIN BY ORDER OF MAY 19, 1969,
395 U.S. 901; AND 

IT FURTHER APPEARING THAT SUBSTANTIAL REVENUES DERIVED FROM LANDS
LYING WHOLLY WITHIN SAID AREA ARE NOW BEING HELD IMPOUNDED BY THE
UNITED STATES PURSUANT TO THE PARTIES' INTERIM AGREEMENT OF OCTOBER 12,
1956, AS AMENDED, ON FILE HEREIN, AND THAT THERE IS NO REASON WHY THE
COURT SHOULD NOT AT THIS TIME ENTER A SUPPLEMENTAL DECREE DECLARING THE
RIGHTS OF THE UNITED STATES IN THE DESCRIBED AREA AND TERMINATING THE
OBLIGATION OF THE UNITED STATES TO HOLD IMPOUNDED THE REVENUES
HERETOFORE OR HEREAFTER DERIVED FROM LEASES OF LANDS LYING WHOLLY
WITHIN THE DESCRIBED AREA: 

IT IS ORDERED, ADJUDGED AND DECREED: 

1.  AS AGAINST THE DEFENDANT STATE OF LOUISIANA AND ALL PERSONS
CLAIMING UNDER IT, THE UNITED STATES HAS EXCLUSIVE RIGHTS TO EXPLORE
THE AREA OF THE CONTINENTAL SHELF LYING MORE THAN ONE FOOT SEAWARD OF
THE LINE DESCRIBED IN PARAGRAPH 3 HEREOF, AND TO EXPLOIT THE NATURAL
RESOURCES OF SAID AREA.  THE STATE OF LOUISIANA IS NOT ENTITLED TO ANY
INTEREST IN SUCH LANDS, MINERALS, OR RESOURCES, AND SAID STATE, ITS
PRIVIES, ASSIGNS, LESSEES AND OTHER PERSONS CLAIMING UNDER IT ARE
HEREBY ENJOINED FROM INTERFERING WITH THE RIGHTS OF THE UNITED STATES
IN SUCH LANDS, MINERALS, AND RESOURCES. 

2.  ALL SUMS NOW HELD IMPOUNDED BY THE UNITED STATES UNDER THE
INTERIM AGREEMENT OF OCTOBER 12, 1956, AS AMENDED, DERIVED FROM LEASES
OF LANDS LYING WHOLLY WITHIN THE AREA REFERRED TO IN PARAGRAPH 1 HEREOF
ARE HEREBY RELEASED TO THE UNITED STATES ABSOLUTELY, AND THE UNITED
STATES IS HEREBY RELIEVED OF ANY OBLIGATION UNDER SAID AGREEMENT TO
IMPOUND ANY SUMS HEREAFTER RECEIVED BY IT FROM LEASES OF LANDS LYING
WHOLLY WITHIN SAID AREA. 

3.  THE LINE REFERRED TO IN PARAGRAPH 1 HEREOF IS DESCRIBED BY
COORDINATES IN THE LOUISIANA PLANE COORDINATE SYSTEM, SOUTH ZONE, AS
FOLLOWS:

                          X                 Y 

BEGINNING AT 2769356.556 575649.806 

BY STRAIGHT LINE TO 2790257.937 526389.980 

BY ARC CENTERED AT 2779032.000 512013.000 

TO 2791384.930 525434.041 

BY STRAIGHT LINE TO 2793118.930 423838.041 

BY ARC CENTERED AT 2780766.000 510417.000 

TO 2794593.837 522312.804 

BY STRAIGHT LINE TO 2795886.837 520809.804 

BY ARC CENTERED AT 2782059.000 508914.000 

TO 2796579.124 519954.164 

BY STRAIGHT LINE TO 2799209.124 516495.164 

BY ARC CENTERED AT 2784689.000 505455.000 

TO 2800440.568 514653.224 

BY STRAIGHT LINE TO 2804269.568 508096.224 

BY ARC CENTERED AT 2788518.000 498898.000 

TO 2804494.998 507698.840 

BY STRAIGHT LINE TO 2806027.998 504915.840 

BY ARC CENTERED AT 2790051.000 496115.000 

TO 2807013.645 502822.304 

BY STRAIGHT LINE TO 2808652.645 498677.304 

BY ARC CENTERED AT 2791690.000 491970.000 

TO 2809151.167 497245.118 

BY STRAIGHT LINE TO 2812250.167 486987.118 

BY ARC CENTERED AT 2794789.000 481712.000 

TO 2812519.378 485996.033 

BY STRAIGHT LINE TO 2813932.378 480148.033 

BY ARC CENTERED AT 2796202.000 475864.000 

TO 2814261.901 478425.093 

BY STRAIGHT LINE TO 2815268.901 471324.093 

BY ARC CENTERED AT 2797209.000 468763.000 

TO 2815426.129 469687.898 

BY STRAIGHT LINE TO 2815673.129 464822.898 

BY ARC CENTERED AT 2797456.000 463898.000 

TO 2815696.593 463894.844 

BY STRAIGHT LINE TO 2815695.593 458115.844 

BY ARC CENTERED AT 2797455.000 458119.000 

TO 2815656.660 456927.864 

BY STRAIGHT LINE TO 2815268.660 450998.864 

BY ARC CENTERED AT 2797067.000 452190.000 

TO 2815170.804 449960.314 

BY STRAIGHT LINE TO 2813956.804 440103.314 

BY ARC CENTERED AT 2795853.000 442333.000 

TO 2813808.964 439123.233 

BY STRAIGHT LINE TO 2812677.964 432796.233 

BY ARC CENTERED AT 2794722.000 436006.000 

TO 2812418.508 431584.141 

BY STRAIGHT LINE TO 2810956.508 425733.141 

BY ARC CENTERED AT 2793260.000 430155.000 

TO 2810698.968 424806.950 

BY STRAIGHT LINE TO 2807853.968 415529.950 

BY ARC CENTERED AT 2790415.000 420878.000 

TO 2807571.652 414683.766 

BY STRAIGHT LINE TO 2805321.652 408451.766 

BY ARC CENTERED AT 2788165.000 414646.000 

TO 2805227.217 408196.195 

BY STRAIGHT LINE TO 2803786.217 404384.195 

BY ARC CENTERED AT 2786724.000 410834.000 

TO 2803319.235 403263.173 

BY STRAIGHT LINE TO 2799845.235 395648.173 

BY ARC CENTERED AT 2783250.000 403219.000 

TO 2798970.928 393968.505 

BY STRAIGHT LINE TO 2795393.928 387889.505 

BY ARC CENTERED AT 2779673.000 397140.000 

TO 2795310.866 387749.772 

BY STRAIGHT LINE TO 2793559.866 384833.772 

BY ARC CENTERED AT 2777922.000 394224.000 

TO 2792248.791 382934.080 

BY STRAIGHT LINE TO 2790813.791 381113.080 

BY ARC CENTERED AT 2776487.000 392403.000 

TO 2789360.151 379480.105 

BY ARC CENTERED AT 2774670.000 390293.000 

TO 2788262.435 378128.916 

BY STRAIGHT LINE TO 2786553.159 375044.826 

BY ARC CENTERED AT 2770599.000 383887.000 

TO 2785045.121 372750.177 

BY STRAIGHT LINE TO 2783941.664 371318.828 

BY STRAIGHT LINE TO 2783791.761 371061.536 

BY ARC CENTERED AT 2768031.000 380244.000 

TO 2780548.119 366975.957 

BY STRAIGHT LINE TO 2775735.205 360552.955 

BY ARC CENTERED AT 2761138.000 371491.000 

TO 2775111.280 359766.382 

BY STRAIGHT LINE TO 2773031.020 357287.149 

BY ARC CENTERED AT 2757465.000 366796.000 

TO 2771721.145 355417.004 

BY STRAIGHT LINE TO 2770633.235 354054.018 

BY STRAIGHT LINE TO 2770504.786 353847.463 

BY ARC CENTERED AT 2755015.000 363480.000 

TO 2767787.706 350457.818 

BY STRAIGHT LINE TO 2761993.706 344774.818 

BY ARC CENTERED AT 2749221.000 357797.000 

TO 2760602.849 343623.561 

BY STRAIGHT LINE TO 2757790.849 341264.561 

BY ARC CENTERED AT 2746309.000 355438.000 

TO 2756371.988 340224.338 

BY STRAIGHT LINE TO 2773418.101 206994.932 

BY ARC CENTERED AT 2755325.000 204680.000 

TO 2773307.767 201623.969 

BY STRAIGHT LINE TO 2773160.767 200758.969 

BY ARC CENTERED AT 2755178.000 203815.000 

TO 2773015.068 199999.475 

BY STRAIGHT LINE TO 2772420.179 188058.433 

BY ARC CENTERED AT 2754263.000 186316.000 

TO 2772345.899 183922.675 

BY STRAIGHT LINE TO 2771967.899 181066.675 

BY ARC CENTERED AT 3753885.000 183460.000 

TO 2766173.905 1-9980.310 

BY STRAIGHT LINE TO 2764758.905 168690.310 

BY ARC CENTERED AT 2752470.000 182170.000 

TO 2763667.122 167770.566 

BY STRAIGHT LINE TO 2740620.854 137484.221 

BY ARC CENTERED AT 2726105.000 148530.000 

TO 2735648.943 132985.471 

BY STRAIGHT LINE TO 2719764.466 115956.608 

BY ARC CENTERED AT 2701773.000 118961.000 

TO 2717763.031 110183.863 

BY STRAIGHT LINE TO 2717662.031 109999.863 

BY ARC CENTERED AT 2701672.000 118777.000 

TO 2714989.110 106312.097 

BY ARC CENTERED AT 2701104.000 118141.000 

TO 2714747.154 106033.830 

BY STRAIGHT LINE TO 2714613.154 105882.830 

BY ARC CENTERED AT 2700970.000 117990.000 

TO 2712654.457 103983.120 

BY ARC CENTERED AT 2699658.000 116782.000 

TO 2699042.141 98551.807 

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BY STRAIGHT LINE TO 1240510.889 379144.329 

BY STRAIGHT LINE TO 1238894.264 378640.306 

BY STRAIGHT LINE TO 1234691.701 377218.487 

BY ARC CENTERED AT 1228846.000 394497.000 

TO 1233981.468 376994.252 

BY ARC CENTERED AT 1225768.000 393281.000 

TO 1230677.055 375713.405 

BY STRAIGHT LINE TO 1229077.217 374979.877 

BY ARC CENTERED AT 1219065.000 390227.000 

TO 1227370.800 373987.144 

BY STRAIGHT LINE TO 1226184.927 373380.635 

BY STRAIGHT LINE TO 1227213.819 367277.089 

BY ARC CENTERED AT 1209227.000 364245.000 

TO 1214917.815 346914.857 

BY STRAIGHT LINE TO 1213303.815 346384.857 

4.  PENDING FURTHER ORDER OF THE COURT OR AGREEMENT OF THE PARTIES,
LEASES OF LANDS LYING PARTLY WITHIN THE AREA ABOVE DESCRIBED AND PARTLY
LANDWARD OF THAT AREA SHALL BE IN NO WAY AFFECTED BY ANYTHING CONTAINED
IN THIS DECREE, AND REVENUES DERIVED FROM SUCH LEASES SHALL REMAIN
SUBJECT TO IMPOUNDMENT UNDER THE INTERIM AGREEMENT OF OCTOBER 12, 1956,
AS AMENDED, IN THE SAME MANNER AS HERETOFORE. 

5.  THE COURT RETAINS JURISDICTION TO ENTERTAIN SUCH FURTHER
PROCEEDINGS, ENTER SUCH ORDERS AND ISSUE SUCH WRITS AS MAY FROM TIME TO
TIME BE DEEMED NECESSARY OR ADVISABLE TO GIVE PROPER FORCE AND EFFECT
TO ITS PREVIOUS ORDERS OR DECREES HEREIN OR TO THIS DECREE OR TO
EFFECTUATE THE RIGHTS OF THE PARTIES IN THE PREMISES. 

SOLICITOR GENERAL GRISWOLD ARGUED THE CAUSE FOR THE UNITED STATES ON
THE MOTION FOR ENTRY OF A SUPPLEMENTAL DECREE AS TO THE STATE OF
LOUISIANA.  WITH HIM ON THE MOTION AND MEMORANDA IN SUPPORT THEREOF
WERE ASSISTANT ATTORNEY GENERAL KASHIWA, GEORGE S. SWARTH, AND JONATHAN
I. CHARNEY. 

VICTOR A. SACHSE, SPECIAL ASSISTANT ATTORNEY GENERAL, ARGUED THE
CAUSE FOR THE STATE OF LOUISIANA IN OPPOSITION TO THE MOTION.  WITH HIM
ON THE MEMORANDA WERE JACK P. F. GREMILLION, ATTORNEY GENERAL, JOHN L.
MADDEN, ASSISTANT ATTORNEY GENERAL, AND PAUL M. HEBERT, OLIVER P.
STOCKWELL, FREDERICK W. ELLIS, WILLIAM E. SHADDOCK, AND W. THOMAS TETE,
SPECIAL ASSISTANT ATTORNEYS GENERAL. 
..END :













UNITED STATES V. LOUISIANA, 409 U.S. 17 


       UNITED STATES V. LOUISIANA ET AL.

        (LOUISIANA BOUNDARY CASE)

        NO. 9, ORIG.  DECIDED MAY 31, 1960-- FINAL DECREE ENTERED

           DECEMBER 12, 1960-- SUPPLEMENTAL DECREES ENTERED

           DECEMBER 13, 1965, DECEMBER 20, 1971, AND OCTOBER 16,

           1972 


THE MOTION BY THE STATE OF LOUISIANA FOR THE ENTRY OF A SUPPLEMENTAL
DECREE AS TO THE UNITED STATES IS GRANTED (POST, P. 909), AND A
SUPPLEMENTAL DECREE IS ENTERED. 

OPINIONS REPORTED:  363 U.S. 1 AND 394 U.S. 11; FINAL DECREE
REPORTED:  364 U.S. 502; SUPPLEMENTAL DECREES REPORTED:  382 U.S. 188
AND 404 U.S. 388. 

       SUPPLEMENTAL DECREE 

FOR THE PURPOSE OF GIVING EFFECT TO THE CONCLUSIONS OF THIS COURT AS
STATED IN ITS OPINION, ANNOUNCED MAY 31, 1960, 363 U.S. 1, AND OTHER
OPINIONS OR DECREES ENTERED BY THIS COURT ON DECEMBER 12, 1960, 364
U.S. 502; ON DECEMBER 12, 1965, 382 U.S. 288; ON MARCH 3, 1969, 394
U.S. 11; AND ON DECEMBER 20, 1971, NO. 9, ORIGINAL, 404 U.S. 388. 

IT IS ORDERED, ADJUDGED AND DECREED: 

1.  WITH THE EXCEPTIONS PROVIDED BY SEC. 5 OF THE SUBMERGED LANDS
ACT, 67 STAT. 32, 43 U.S.C. 1313 (1964 ED.), THE STATE OF LOUISIANA IS
ENTITLED, AS AGAINST THE UNITED STATES, TO ALL THE LANDS, MINERALS AND
OTHER NATURAL RESOURCES LYING MORE THAN ONE FOOT LANDWARD OF THE LINES
DESCRIBED IN PARAGRAPH 2 HEREOF AND SEWARD OF THE ORDINARY LOW-WATER
MARK ON THE LOUISIANA SHORE, PROVIDED THAT THE UNITED STATES IS NOT
HEREBY REQUIRED TO RELINQUISH ANY MONIES PRESENTLY HELD BY IT FOR
OFFSET PURPOSES SOLELY IN CONNECTION WITH ACCOUNTING PROBLEMS WHICH
HAVE HERETOFORE BEEN DEFERRED BY THE PARTIES PENDING RESOLUTION OF THE
LARGER DISPUTES BETWEEN THEM, WITHOUT PREJUDICE TO THE RIGHT OF THE
STATE OF LOUISIANA TO CONTEST EITHER THE SUBSTANCE OF THE UNITED
STATES'S OFFSET CLAIMS OR ITS RIGHT TO WITHHOLD MONIES IN CONNECTION
WITH THEM. 

2.  THE LINES REFERRED TO IN PARAGRAPH 1 HEREOF ARE DESCRIBED BY
COORDINATES IN THE LOUISIANA PLANE COORDINATE SYSTEM, SOUTH ZONE, IN
TWO SEGMENTS, AS FOLLOWS:

        SEGMENT I 

SOUTH AND WEST OF THE MISSISSIPPI-LOUISIANA BORDER TO GRID LINE Y
158695, NORTH OF WEST BAY,

                       X            Y 

BEGINNING AT 2769357 575650 

BY STRAIGHT LINE TO 2790258 526390 

BY ARC CENTERED AT 2779032 512013 

TO 2791385 525434 

BY STRAIGHT LINE TO 2793119 523838 

BY ARC CENTERED AT 2780766 510417 

TO 2794594 522313 

BY STRAIGHT LINE TO 2795887 520810 

BY ARC CENTERED AT 2782059 508914 

TO 2796579 519954 

BY STRAIGHT LINE TO 2799209 516495 

BY ARC CENTERED AT 2784689 505455 

TO 2800441 514653 

BY STRAIGHT LINE TO 2804270 508096 

BY ARC CENTERED AT 2788518 498898 

TO 2804495 507699 

BY STRAIGHT LINE TO 2806028 504916 

BY ARC CENTERED AT 2790051 496115 

TO 2807014 502822 

BY STRAIGHT LINE TO 2808653 498677 

BY ARC CENTERED AT 2791690 491970 

TO 2809151 497245 

BY STRAIGHT LINE TO 2812250 486987 

BY ARC CENTERED AT 2794789 481712 

TO 2812519 485996 

BY STRAIGHT LINE TO 2813932 480148 

BY ARC CENTERED AT 2796202 475864 

TO 2814262 478425 

BY STRAIGHT LINE TO 2815269 471324 

BY ARC CENTERED AT 2797209 468763 

TO 2815426 469688 

BY STRAIGHT LINE TO 2815673 464823 

BY ARC CENTERED AT 2797456 463898 

TO 2815697 463895 

BY STRAIGHT LINE TO 2815696 458116 

BY ARC CENTERED AT 2797455 458119 

TO 2815657 456928 

BY STRAIGHT LINE TO 2815269 450999 

BY ARC CENTERED AT 2797067 452190 

TO 2815171 449960 

BY STRAIGHT LINE TO 2813957 440103 

BY ARC CENTERED AT 2795853 442333 

TO 2813809 439123 

BY STRAIGHT LINE TO 2812678 432796 

BY ARC CENTERED AT 2794722 436006 

TO 2812419 431584 

BY STRAIGHT LINE TO 2810957 425733 

BY ARC CENTERED AT 2793260 430155 

TO 2810699 424807 

BY STRAIGHT LINE TO 2807854 415530 

BY ARC CENTERED AT 2790415 420878 

TO 2807572 414684 

BY STRAIGHT LINE TO 2805322 408452 

BY ARC CENTERED AT 2788165 414646 

TO 2805227 408196 

BY STRAIGHT LINE TO 2803786 404384 

BY ARC CENTERED AT 2786724 410834 

TO 2803319 403263 

BY STRAIGHT LINE TO 2799845 395648 

BY ARC CENTERED AT 2783250 403219 

TO 2798971 393968 

BY STRAIGHT LINE TO 2795394 387889 

BY ARC CENTERED AT 2779673 397140 

TO 2795311 387750 

BY STRAIGHT LINE TO 2793560 384834 

BY ARC CENTERED AT 2777922 394224 

TO 2792249 382934 

BY STRAIGHT LINE TO 2790814 381113 

BY ARC CENTERED AT 2776487 392403 

TO 2789360 379480 

BY ARC CENTERED AT 2774670 390293 

TO 2788262 378129 

BY STRAIGHT LINE TO 2786553 375045 

BY ARC CENTERED AT 2770599 383887 

TO 2785045 372750 

BY STRAIGHT LINE TO 2783942 371319 

BY STRAIGHT LINE TO 2783792 371062 

BY ARC CENTERED AT 2768031 380244 

TO 2780548 366976 

BY STRAIGHT LINE TO 2775735 360553 

BY ARC CENTERED AT 2761138 371491 

TO 2775111 359766 

BY STRAIGHT LINE TO 2773031 357287 

BY ARC CENTERED AT 2757465 366796 

TO 2771721 355417 

BY STRAIGHT LINE TO 2770633 354054 

BY STRAIGHT LINE TO 2770505 353847 

BY ARC CENTERED AT 2755015 363480 

TO 2767788 350458 

BY STRAIGHT LINE TO 2761994 344775 

BY ARC CENTERED AT 2749221 357797 

TO 2760703 343624 

BY STRAIGHT LINE TO 2757791 341265 

BY ARC CENTERED AT 2746309 355438 

TO 2756022 339999 

BY STRAIGHT LINE TO 2754136 338812 

BY STRAIGHT LINE TO 2742173 323079 

BY ARC CENTERED AT 2727653 334120 

TO 2741983 322834 

BY STRAIGHT LINE TO 2741182 321817 

BY ARC CENTERED AT 2726852 333103 

TO 2738042 318698 

BY STRAIGHT LINE TO 2736381 317408 

BY STRAIGHT LINE TO 2736060 316935 

BY STRAIGHT LINE TO 2732627 311249 

BY ARC CENTERED AT 2717012 320677 

TO 2731416 309486 

BY STRAIGHT LINE TO 2729640 307200 

BY ARC CENTERED AT 2715236 318391 

TO 2728702 306088 

BY STRAIGHT LINE TO 2728099 305428 

BY ARC CENTERED AT 2714633 317731 

TO 2725197 302861 

BY STRAIGHT LINE TO 2723888 301931 

BY ARC CENTERED AT 2713324 316801 

TO 2720770 300149 

BY STRAIGHT LINE TO 2719218 299455 

BY ARC CENTERED AT 2711772 316107 

TO 2714238 298034 

BY STRAIGHT LINE TO 2704480 294684 

BY STRAIGHT LINE TO 2704099 293666 

BY ARC CENTERED AT 2687014 300054 

TO 2701338 288761 

BY STRAIGHT LINE TO 2699382 286280 

BY ARC CENTERED AT 2685058 297573 

TO 2697436 284175 

BY STRAIGHT LINE TO 2699302 266715 

BY ARC CENTERED AT 2688235 252215 

TO 2704468 260534 

BY ARC CENTERED AT 2689305 250395 

TO 2707507 251577 

BY ARC CENTERED AT 2700735 234640 

TO 2717908 240788 

BY ARC CENTERED AT 2701500 232820 

TO 2719022 237890 

BY ARC CENTERED AT 2707635 223640 

TO 2721632 235337 

BY STRAIGHT LINE TO 2736873 228413 

BY ARC CENTERED AT 2738320 210230 

TO 2745585 226961 

BY ARC CENTERED AT 2738938 209975 

TO 2749646 224742 

BY ARC CENTERED AT 2750755 206535 

TO 2759837 222354 

BY ARC CENTERED AT 2755325 204680 

TO 2773229 201192 

BY ARC CENTERED AT 2755178 203815 

TO 2770763 194337 

BY ARC CENTERED AT 2754100 186915 

TO 2771780 191404 

BY ARC CENTERED AT 2754263 186316 

TO 2772100 182502 

BY ARC CENTERED AT 2753885 183460 

TO 2765449 169354 

BY ARC CENTERED AT 2752470 182170 

TO 2761213 166161 

BY ARC CENTERED AT 2751045 181305 

TO 2752202 163101 

BY ARC CENTERED AT 2750586 181270 

TO 2749611 163055 

BY ARC CENTERED AT 2736662 175902 

TO 2748316 161869 

BY ARC CENTERED AT 2734720 174030 

TO 2747824 161341 

BY STRAIGHT LINE TO 2746249 159715 

BY ARC CENTERED AT 2728153 162005 

TO 2746094 158715 

BY STRAIGHT LINE TO 2745156 153600 

BY ARC CENTERED AT 2727215 156890 

TO 2745054 153083 

BY ARC CENTERED AT 2726951 150846 

TO 2743622 143444 

BY ARC CENTERED AT 2726105 148530 

TO 2731258 131033 

BY STRAIGHT LINE TO 2716731 112786 

BY ARC CENTERED AT 2702461 124148 

TO 2716719 112772 

BY ARC CENTERED AT 2699435 118600 

TO 2710698 104252 

BY ARC CENTERED AT 2697850 117200 

TO 2683320 106173 

BY STRAIGHT LINE TO 2682980 106621 

BY ARC CENTERED AT 2697510 117648 

TO 2679799 113283 

BY STRAIGHT LINE TO 2679589 114135 

BY ARC CENTERED AT 2697300 118500 

TO 2679155 116635 

BY ARC CENTERED AT 2685325 133800 

TO 2670977 122536 

BY STRAIGHT LINE TO 2670552 122781 

BY STRAIGHT LINE TO 2666743 124295 

BY ARC CENTERED AT 2673482 141245 

TO 2665719 124739 

BY ARC CENTERED AT 2672315 141745 

TO 2661428 127109 

BY ARC CENTERED AT 2644940 134910 

TO 2660589 125539 

BY STRAIGHT LINE TO 2657484 120354 

BY ARC CENTERED AT 2641835 129725 

TO 2656150 118421 

BY STRAIGHT LINE TO 2653860 115521 

BY ARC CENTERED AT 2639545 126825 

TO 2648682 111038 

BY STRAIGHT LINE TO 2648610 110974 

BY STRAIGHT LINE TO 2648531 110887 

BY STRAIGHT LINE TO 2646419 107265 

BY ARC CENTERED AT 2630660 116450 

TO 2646250 106981 

BY STRAIGHT LINE TO 2644270 103721 

BY ARC CENTERED AT 2628680 113190 

TO 2642494 101278 

BY STRAIGHT LINE TO 2640182 98597 

BY ARC CENTERED AT 2624995 108700 

TO 2638408 96339 

BY STRAIGHT LINE TO 2638210 96123 

BY STRAIGHT LINE TO 2637530 95377 

BY ARC CENTERED AT 2624045 107660 

TO 2637471 95312 

BY STRAIGHT LINE TO 2635351 93007 

BY ARC CENTERED AT 2621925 105355 

TO 2634923 92558 

BY STRAIGHT LINE TO 2633653 91268 

BY ARC CENTERED AT 2620655 104065 

TO 2631973 89760 

BY STRAIGHT LINE TO 2631344 89262 

BY STRAIGHT LINE TO 2630156 87770 

BY ARC CENTERED AT 2615885 99131 

TO 2630068 87661 

BY STRAIGHT LINE TO 2629389 86821 

BY STRAIGHT LINE TO 2626027 82661 

BY STRAIGHT LINE TO 2624340 80576 

BY ARC CENTERED AT 2610160 92050 

TO 2621555 77806 

BY STRAIGHT LINE TO 2621180 77506 

BY ARC CENTERED AT 2609785 91750 

TO 2617996 75462 

BY STRAIGHT LINE TO 2617391 75157 

BY ARC CENTERED AT 2609180 91445 

TL 2597416 77505 

BY STRAIGHT LINE TO 2595526 79100 

BY ARC CENTERED AT 2607290 93040 

TO 2589664 97736 

BY ARC CENTERED AT 2607455 93710 

TO 2591541 102625 

BY STRAIGHT LINE TO 2592751 104785 

BY ARC CENTERED AT 2608665 95870 

TO 2593838 106495 

BY STRAIGHT LINE TO 2595167 108350 

BY STRAIGHT LINE TO 2596041 109955 

BY ARC CENTERED AT 2614270 110615 

TO 2597233 117130 

BY STRAIGHT LINE TO 2597210 155899 

BY ARC CENTERED AT 2614790 160765 

TO 2596949 156969 

BY STRAIGHT LINE TO 2596342 158695 

BY STRAIGHT LINE TO SHORE AT 2615450 157770

        SEGMENT II 

FROM THE VICINITY OF BAYOU GOREAU TO THE VICINITY OF SABINE PASS,
WEST OF GRID LINE X   2082361 AND EAST OF THE TEXAS-LOUISIANA BORDER,

             X            Y 

BEGINNING AT 2082361 169358 

BY STRAIGHT LINE TO 2081470 169553 

BY ARC CENTERED AT 2085370 187372 

TO 2076984 171174 

BY ARC CENTERED AT 2077417 189409 

TO 2071846 172040 

BY STRAIGHT LINE TO 2070630 172430 

BY ARC CENTERED AT 2076201 189799 

TO 2064747 175603 

BY STRAIGHT LINE TO 2063841 176334 

BY ARC CENTERED AT 2075295 190530 

TO 2059951 180668 

BY ARC CENTERED AT 2071131 195080 

TO 2058843 181599 

BY ARC CENTERED AT 2062055 199555 

TO 2057134 181991 

BY STRAIGHT LINE TO 2053779 182931 

BY ARC CENTERED AT 2058700 200495 

TO 2053474 183019 

BY STRAIGHT LINE TO 2052967 183053 

BY STRAIGHT LINE TO 2051871 183006 

BY ARC CENTERED AT 2051090 201230 

TO 2050845 182991 

BY STRAIGHT LINE TO 2048985 183016 

BY ARC CENTERED AT 2049230 201255 

TO 2048033 183054 

BY STRAIGHT LINE TO 2044865 183262 

BY STRAIGHT LINE TO 2041482 183446 

BY ARC CENTERED AT 2042475 201660 

TO 2037472 184119 

BY STRAIGHT LINE TO 2033139 185355 

BY STRAIGHT LINE TO 2032934 185387 

BY ARC CENTERED AT 2035775 203405 

TO 2029791 186174 

BY STRAIGHT LINE TO 2027401 187004 

BY ARC CENTERED AT 2033385 204235 

TO 2026834 187211 

BY STRAIGHT LINE TO 2023510 188491 

BY STRAIGHT LINE TO 2020959 189327 

BY ARC CENTERED AT 2026640 206660 

TO 2019190 190010 

BY STRAIGHT LINE TO 2016613 191163 

BY STRAIGHT LINE TO 2015796 191414 

BY ARC CENTERED AT 2021155 208850 

TO 2013823 192148 

BY STRAIGHT LINE TO 2010121 193773 

BY ARC CENTERED AT 2017453 210475 

TO 2007660 195086 

BY STRAIGHT LINE TO 2006450 195856 

BY ARC CENTERED AT 2016243 211245 

TO 2002812 198903 

BY STRAIGHT LINE TO 2001329 200516 

BY STRAIGHT LINE TO 1998627 203119 

BY STRAIGHT LINE TO 1996877 204647 

BY ARC CENTERED AT 2008873 218388 

TO 1994484 207177 

BY STRAIGHT LINE TO 1993669 208223 

BY ARC CENTERED AT 2008058 219434 

TO 1992024 210737 

BY STRAIGHT LINE TO 1991723 211291 

BY STRAIGHT LINE TO 1991392 211653 

BY STRAIGHT LINE TO 1987527 215292 

BY ARC CENTERED AT 2000030 228573 

TO 1985881 217061 

BY STRAIGHT LINE TO 1984419 218858 

BY ARC CENTERED AT 1998568 230370 

TO 1982726 221329 

BY STRAIGHT LINE TO 1981279 223864 

BY ARC CENTERED AT 1987818 240892 

TO 1975782 227186 

BY ARC CENTERED AT 1987371 241272 

TO 1972054 231367 

BY STRAIGHT LINE TO 1937446 246505 

BY ARC CENTERED AT 1933172 264238 

TO 1920501 251117     BY ARC CENTERED AT 1924399 268936 

TO 1916888 252314 

BY ARC CENTERED AT 1914373 270380 

TO 1900989 257987 

BY ARC CENTERED AT 1896827 175747 

TO 1895100 257588 

BY ARC CENTERED AT 1882306 270590 

TO 1867537 259884 

BY ARC CENTERED AT 1872418 277460 

TO 1858534 265630 

BY ARC CENTERED AT 1843467 275912 

TO 1848729 258447 

BY ARC CENTERED AT 1835344 270839 

TO 1841538 253682 

BY ARC CENTERED AT 1834019 270301 

TO 1817077 263541 

BY ARC CENTERED AT 1833527 271423 

TO 1815531 274401 

BY ARC CENTERED AT 1820994 291804 

TO 1808997 278064 

BY ARC CENTERED AT 1809845 296285 

TO 1792971 289357 

BY ARC CENTERED AT 1791584 307545 

TO 1773422 305849 

BY ARC CENTERED AT 1783067 321331 

TO 1771284 307407 

BY ARC CENTERED AT 1782391 321876 

TO 1769317 309156 

BY ARC CENTERED AT 1778769 324757 

TO 1763172 315299 

BY ARC CENTERED AT 1763190 333540 

TO 1762008 315338 

BY STRAIGHT LINE TO 1761238 315388 

BY ARC CENTERED AT 1762420 333590 

TO 1761004 315404 

BY ARC CENTERED AT 1758630 333490 

TO 1751585 316665 

BY STRAIGHT LINE TO 1749527 316597 

BY STRAIGHT LINE TO 1745678 316238 

BY STRAIGHT LINE TO 1741757 315745 

BY STRAIGHT LINE TO 1738098 314155 

BY ARC CENTERED AT 1730831 330886 

TO 1737269 313819 

BY STRAIGHT LINE TO 1733962 312572 

BY STRAIGHT LINE TO 1733065 312110 

BY ARC CENTERED AT 1724713 328326 

TO 1729983 310863 

BY STRAIGHT LINE TO 1729557 310735 

BY STRAIGHT LINE TO 1727510 309315 

BY ARC CENTERED AT 1717114 324303 

TO 1726647 308752 

BY STRAIGHT LINE TO 1721463 305574 

BY STRAIGHT LINE TO 1721351 305467 

BY ARC CENTERED AT 1708756 318661 

TO 1715565 301739 

BY STRAIGHT LINE TO 1713599 300948 

BY ARC CENTERED AT 1706790 317870 

TO 1711471 300240 

BY STRAIGHT LINE TO 1707761 299255 

BY ARC CENTERED AT 1703080 316885 

TO 1706765 299020 

BY STRAIGHT LINE TO 1704365 298525 

BY ARC CENTERED AT 1700680 316390 

TO 1702465 298237 

BY STRAIGHT LINE TO 1698144 297812 

BY ARC CENTERED AT 1696359 315965 

TO 1696239 297725 

BY STRAIGHT LINE TO 1692448 297750 

BY ARC CENTERED AT 1692568 315990 

TO 1691302 297793 

BY STRAIGHT LINE TO 1688714 297973 

BY ARC CENTERED AT 1689980 316170 

TO 1687709 298071 

BY STRAIGHT LINE TO 1684999 298411 

BY ARC CENTERED AT 1687270 316510 

TO 1683393 298686 

BY STRAIGHT LINE TO 1674668 300584 

BY ARC CENTERED AT 1678545 318408 

TO 1674182 300697 

BY STRAIGHT LINE TO 1670983 301485 

BY ARC CENTERED AT 1675346 319196 

TO 1670472 301619 

BY STRAIGHT LINE TO 1666144 302819 

BY ARC CENTERED AT 1671018 320396 

TO 1665216 303103 

BY STRAIGHT LINE TO 1663698 303612 

BY STRAIGHT LINE TO 1662427 303960 

BY STRAIGHT LINE TO 1661678 304151 

BY STRAIGHT LINE TO 1659494 304616 

BY ARC CENTERED AT 1663290 322457 

TO 1659476 304620 

BY STRAIGHT LINE TO 1658120 304910 

BY ARC CENTERED AT 1658887 323134 

TO 1656354 305070 

BY ARC CENTERED AT 1655896 323305 

TO 1652650 305356 

BY STRAIGHT LINE TO 1650184 305802 

BY ARC CENTERED AT 1653430 323751 

TO 1648635 306152 

BY STRAIGHT LINE TO 1647051 306584 

BY ARC CENTERED AT 1649308 324084 

TO 1643681 307333 

BY STRAIGHT LINE TO 1636292 308607 

BY STRAIGHT LINE TO 1627130 309807 

BY STRAIGHT LINE TO 1620757 310390 

BY ARC CENTERED AT 1622420 328555 

TO 1619895 310490 

BY STRAIGHT LINE TO 1614565 311235 

BY ARC CENTERED AT 1617090 329300 

TO 1613148 311491 

BY STRAIGHT LINE TO 1611814 311591 

BY ARC CENTERED AT 1613190 329780 

TO 1609960 311828 

BY STRAIGHT LINE TO 1606070 312528 

BY ARC CENTERED AT 1609300 330480 

TO 1604702 312829 

BY STRAIGHT LINE TO 1604290 312866 

BY ARC CENTERED AT 1605965 331030 

TO 1601325 313389 

BY STRAIGHT LINE TO 1601195 313403 

BY ARC CENTERED AT 1603140 331540 

TO 1598672 313855 

BY STRAIGHT LINE TO 1596370 314437 

BY STRAIGHT LINE TO 1596179 314483 

BY STRAIGHT LINE TO 1592424 315063 

BY ARC CENTERED AT 1595210 333090 

TO 1591479 315235 

BY ARC CENTERED AT 1594075 333290 

TO 1589694 315583 

BY ARC CENTERED AT 1593010 333520 

TO 1589433 315634 

BY STRAIGHT LINE TO 1588108 315899 

BY ARC CENTERED AT 1591685 333785 

TO 1585928 316477 

BY STRAIGHT LINE TO 1584286 317023 

BY STRAIGHT LINE TO 1582201 317563 

BY ARC CENTERED AT 1586780 335220 

TO 1581596 317732 

BY STRAIGHT LINE TO 1576266 319312 

BY ARC CENTERED AT 1581450 336800 

TO 1575360 319606 

BY STRAIGHT LINE TO 1570080 321476 

BY ARC CENTERED AT 1576170 338670 

TO 1569889 321545 

BY STRAIGHT LINE TO 1565349 323210 

BY ARC CENTERED AT 1571630 340335 

TO 1563529 323992 

BY STRAIGHT LINE TO 1563104 324202 

BY STRAIGHT LINE TO 1561073 324994 

BY ARC CENTERED AT 1567695 341990 

TO 1558882 326020 

BY STRAIGHT LINE TO 1558879 326021 

BY ARC CENTERED AT 1564160 343480 

TO 1556225 327056 

BY STRAIGHT LINE TO 1556066 327133 

BY STRAIGHT LINE TO 1553511 327894 

BY ARC CENTERED AT 1558720 345375 

TO 1551769 328511 

BY STRAIGHT LINE TO 1549575 329415 

BY ARC CENTERED AT 1553840 347150 

TO 1546081 330642 

BY STRAIGHT LINE TO 1543911 331662 

BY ARC CENTERED AT 1551670 348170 

TO 1541402 333094 

BY STRAIGHT LINE TO 1540011 333646 

BY ARC CENTERED AT 1546740 350600 

TO 1537927 334630 

BY STRAIGHT LINE TO 1531757 337418 

BY ARC CENTERED AT 1539270 354040 

TO 1530263 338178 

BY STRAIGHT LINE TO 1527498 339748 

BY ARC CENTERED AT 1536505 355610 

TO 1526511 340351 

BY STRAIGHT LINE TO 1526495 340356 

BY ARC CENTERED AT 1532515 357575 

TO 1523959 341466 

BY ARC CENTERED AT 1531240 358190 

TO 1522813 342013 

BY STRAIGHT LINE TO 1516478 345313 

BY STRAIGHT LINE TO 1505572 350398 

BY ARC CENTERED AT 1513280 366930 

TO 1504778 350792 

BY STRAIGHT LINE TO 1493968 357487 

BY ARC CENTERED AT 1502470 372625 

TO 1493740 356609 

BY STRAIGHT LINE TO 1488240 359607 

BY STRAIGHT LINE TO 1483855 361809 

BY ARC CENTERED AT 1492040 378110 

TO 1483320 362089 

BY STRAIGHT LINE TO 1481464 363099 

BY STRAIGHT LINE TO 1472522 367321 

BY STRAIGHT LINE TO 1464632 370389 

BY ARC CENTERED AT 1471240 387390 

TO 1464433 370467 

BY STRAIGHT LINE TO 1461367 371700 

BY STRAIGHT LINE TO 1455041 373829 

BY STRAIGHT LINE TO 1449142 375498 

BY ARC CENTERED AT 1454105 393050 

TO 1447394 376089 

BY STRAIGHT LINE TO 1443224 377739 

BY ARC CENTERED AT 1449935 394700 

TO 1442769 377926 

BY STRAIGHT LINE TO 1437906 380003 

BY STRAIGHT LINE TO 1435142 381048 

BY STRAIGHT LINE TO 1431147 382502 

BY ARC CENTERED AT 1431465 400740 

TO 1426148 383291 

BY STRAIGHT LINE TO 1423703 384036 

BY ARC CENTERED AT 1429020 401485 

TO 1421665 384793 

BY STRAIGHT LINE TO 1421218 384903 

BY ARE CENTERED AT 1425600 402610 

TO 1417428 386302 

BY STRA8GHT LINE TO 1411695 388054 

BY STRAIGHT LINE TO 1406675 389181 

BY STRAIGHT LINE TO 1400158 390267 

BY STRAIGHT LINE TO 1395815 390681 

BY STRAIGHT LINE TO 1390919 390971 

BY ARC CENTERED AT 1392000 409180 

TO 1390575 390995 

BY STRAIGHT LINE TO 1386958 390977 

BY STRAIGHT LINE TO 1385797 390942 

BY STRAIGHT LINE TO 1383281 390516 

BY ARC CENTERED AT 1380235 408500 

TO 1382827 390444 

BY STRAIGHT LINE TO 1380530 390115 

BY STRAIGHT LINE TL 1379793 389887 

BY ARC CENTERED AT 1363392 397870 

TO 1364228 379651 

BY STRAIGHT LINE TO 1363312 379603 

BY ARC CENTERED AT 1362416 397822 

TO 1348021 386619 

BY STRAIGHT LINE TO 1347740 386685 

BY STRAIGHT LINE TO 1339580 387874 

BY STRAIGHT LINE TO 1332311 388694 

BY STRAIGHT LINE TO 1328041 388886 

BY STRAIGHT LINE TO 1323345 388897 

BY STRAIGHT LINE TO 1318624 388814 

BY STRAIGHT LINE TO 1313961 388548 

BY STRAIGHT LINE TO 1309176 388114 

BY STRAIGHT LINE TO 1399212 386972 

BY STRAIGHT LINE TO 1294264 386189 

BY ARC CENTERED AT 1291413 404205 

TO 1293948 386141 

BY STRAIGHT LINE TO 1288689 385403 

BY ARC CENTERED AT 1386154 403467 

TO 1288273 385350 

BY STRAIGHT LINE TO 1282879 384719 

BY ARC CENTERED AT 1280760 402836 

TO 1282343 384664 

BY STRAIGHT LINE TO 1277050 384203 

BY ARC CENTERED AT 1275467 402375 

TO 1276974 384197 

BY STRAIGHT LINE TO 1266567 383334 

BY STRAIGHT LINE TO 1261754 382855 

BY STRAIGHT LINE TO 1256845 382176 

BY STRAIGHT LINE TO 1252082 381444 

BY STRAIGHT LINE TO 1247120 380489 

BY ARC CENTERED AT 1243670 398400 

TO 1246626 380401 

BY STRAIGHT LINE TO 1243866 379947 

BY STRAIGHT LINE TO 1240511 379144 

BY STRAIGHT LINE TO 1238894 378640 

BY STRAIGHT LINE TO 1234692 377218 

BY ARC CENTERED AT 1228846 394497 

TO 1233981 376994 

BY ARC CENTERED AT 1225768 393281 

TO 1230677 375713 

BY STRAIGHT LINE TO 1229077 374980 

BY ARC CENTERED AT 1219065 390227 

TO 1227371 373987 

BY STRAIGHT LINE TO 1226185 373381 

BY STRAIGHT LINE TO 1227214 367277 

BY ARC CENTERED AT 1209227 364245 

TO 1214918 346915 

BY STRAIGHT LINE TO 1213304 346385 

3.  THE UNITED STATES IS NOT ENTITLED, AS AGAINST THE STATE OF
LOUISIANA, TO ANY INTEREST IN THE LANDS, MINERALS OR NATURAL RESOURCES
DESCRIBED IN PARAGRAPH 1 HEREOF, WITH THE EXCEPTIONS PROVIDED BY SEC. 5
OF THE SUBMERGED LANDS ACT, 67 STAT. 32, 43 U.S.C. 1313 (1964 ED.) 

4.  PENDING FURTHER ORDER OF THE COURT OR AGREEMENT OF THE PARTIES,
LEASES OF LANDS LYING PARTLY WITHIN THE AREA ABOVE DESCRIBED AND PARTLY
SEAWARD OF THAT AREA SHALL BE IN NO WAY AFFECTED BY ANYTHING CONTAINED
IN THIS DECREE, AND REVENUES DERIVED FROM SUCH LEASES SHALL REMAIN
SUBJECT TO IMPOUNDMENT UNDER THE INTERIM AGREEMENT OF OCTOBER 12, 1956,
AS AMENDED, IN THE SAME MANNER AS HERETOFORE. 

5.  ALL SUMS NOW HELD IMPOUNDED BY THE STATE OF LOUISIANA OR THE
UNITED STATES UNDER THE INTERIM AGREEMENT OF OCTOBER 12, 1956, AS
AMENDED, DERIVED FROM LEASES OF LANDS WHOLLY WITHIN AREAS REFERRED TO
IN PARAGRAPH 1 HEREOF ARE HEREBY RELEASED TO THE STATE OF LOUISIANA
ABSOLUTELY, AND THE STATE OF LOUISIANA IS RELEIEVED OF ANY OBLIGATION
UNDER SAID AGREEMENT TO IMPOUND ANY SUMS HEREAFTER RECEIVED BY IT FROM
LEASES OF LANDS LYING WHOLLY WITHIN SAID AREA AND THE STATE OF
LOUISIANA IS AND SHALL BE ENTITLED TO LEASE LANDS WHOLLY WITHIN SAID
AREAS AND TO DIRECTLY RECEIVE ANY SUMS HEREAFTER DERIVABLE THEREFROM. 

6.  NOTHING IN THIS DECREE OR THE PROCEEDINGS LEADING TO IT SHALL
PREJUDICE ANY RIGHTS, CLAIMS OR DEFENSES OF THE UNITED STATES OR THE
STATE OF LOUISIANA WITH RESPECT TO THE REMAINDER OF THE DISPUTED AREA
OR PAST OR FUTURE PAYMENTS DERIVED THEREFROM OR ATTRIBUTABLE THERETO OR
THE OPERATION OF THE INTERIM AGREEMENT OF OCTOBER 12, 1956, AS AMENDED,
WITH RESPECT TO SUCH REMAINING DISPUTED AREA AND PAYMENTS.  NOR SHALL
ANYTHING IN THIS DECREE NOR IN THE PROCEEDINGS LEADING TO IT PREJUDICE
ANY RIGHTS, CLAIMS OR DEFENSES OF THE STATE OF LOUISIANA AS TO ITS
MARITIME LATERAL BOUNDARIES WITH THE STATES OF MISSISSIPPI AND TEXAS,
WHICH BOUNDARIES ARE NOT AT ISSUE IN THIS LITIGATION. 

7.  THE COURT RETAINS JURISDICTION TO ENTERTAIN SUCH FURTHER
PROCEEDINGS, ENTER SUCH ORDERS AND ISSUE SUCH WRITS AS MAY FROM TIME TO
TIME BE DEEMED NECESSARY OR ADVISABLE TO GIVE PROPER FORCE AND EFFECT
TO TIS PREVIOUS ORDERS OR DECREES HEREIN OR TO THIS DECREE OR TO
EFFECTUATE THE RIGHTS OF THE PARTIES IN THE PREMISES. 
..END :













LEVINE V. UNITED STATES 362 U.S. 610 


NO. 164.  ARGUED MARCH 22, 1960 - DECIDED MAY 23, 1960 - 267 F.2D 335,
AFFIRMED. 


SUBPOENAED TO TESTIFY BEFORE A FEDERAL GRAND JURY, PETITIONER REFUSED,
ON GROUNDS OF POSSIBLE SELF-INCRIMINATION, TO ANSWER QUESTIONS RELEVANT
TO THE GRAND JURY'S INQUIRY.  THE GRAND JURY SOUGHT THE AID OF THE
DISTRICT JUDGE, WHO HEARD ARGUMENTS ON THE SUBJECT, RULED THAT
PETITIONER WOULD BE ACCORDED IMMUNITY AS EXTENSIVE AS THE PRIVILEGE HE
HAD ASSERTED, AND ORDERED HIM TO ANSWER THE QUESTIONS.  AFTER RETURNING
TO THE GRAND JURY ROOM, PETITIONER PERSISTED IN HIS REFUSAL, AND HE WAS
AGAIN BROUGHT BEFORE THE DISTRICT JUDGE, WHO ADDRESSED THE SAME
QUESTIONS TO HIM IN THE PRESENCE OF THE GRAND JURY, EXPLICITLY DIRECTED
HIM TO ANSWER THEM, AND, UPON HIS REFUSAL TO DO SO, ADJUDGED HIM GUILTY
OF CRIMINAL CONTEMPT AND SENTENCED HIM TO IMPRISONMENT FOR ONE YEAR. 
DURING THESE PROCEEDINGS, EVERYONE WAS EXCLUDED FROM THE COURTROOM
EXCEPT PETITIONER, HIS COUNSEL, THE GRAND JURY, GOVERNMENT COUNSEL, THE
JUDGE AND THE COURT REPORTER; BUT NO OBJECTION TO THE EXCLUSION OF THE
GENERAL PUBLIC WAS MADE AT ANY STAGE OF THE PROCEEDINGS.  HELD:  IN THE
CIRCUMSTANCES OF THIS CASE, EXCLUSION OF THE PUBLIC FROM THE COURTROOM
WHEN PETITIONER WAS ADJUDGED GUILTY OF CRIMINAL CONTEMPT AND SENTENCED
DID NOT INVALIDATE HIS CONVICTION.  PP. 611-620. 

(A)  A PROCEEDING FOR CRIMINAL CONTEMPT UNDER RULE 42(A) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE IS NOT A "CRIMINAL PROSECUTION"
WITHIN THE MEANING OF THE SIXTH AMENDMENT, WHICH EXPLICITLY GUARANTEES
THE RIGHT TO A "PUBLIC TRIAL" ONLY FOR "CRIMINAL PROSECUTIONS."  P.
616. 

(B)  IT WAS NOT ERROR FOR THE JUDGE TO CLEAR THE COURTROOM INITIALLY
WHEN THE GRAND JURY APPEARED BEFORE HIM FOR THE SECOND TIME SEEKING HIS
ASSISTANCE IN COMPELLING PETITIONER TO TESTIFY; AND, IN LIGHT OF THE
PRESENCE OF PETITIONER'S COUNSEL AND HIS FAILURE TO OBJECT TO THE
CONTINUED EXCLUSION OF THE PUBLIC, FAILURE OF THE JUDGE TO REOPEN THE
COURTROOM TO THE GENERAL PUBLIC ON HIS OWN MOTION BEFORE ADJUDGING
PETITIONER IN CONTEMPT AND SENTENCING HIM DID NOT VIOLATE THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  PP. 616-620. 

LEVINE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROSECUTION FOR CONTEMPT ARISING FROM PETITIONER'S REFUSAL
TO ANSWER A SERIES OF QUESTIONS PROPOUNDED TO HIM BY A FEDERAL GRAND
JURY.  IN EVERY RESPECT BUT ONE, THIS CASE IS A REPLICA OF BROWN V.
UNITED STATES, 359 U.S. 41, AND AS TO ALL COMMON ISSUES IT IS
CONTROLLED BY THAT CASE.  IN BROWN, HOWEVER, WE EXPRESSLY DECLINED TO
DECIDE THE EFFECT OF CLAIMED "SECRECY" UPON PROCEEDINGS CULMINATING IN
THE PETITIONER'S SENTENCING FOR CONTEMPT, "BECAUSE THE RECORD DOES NOT
SHOW THIS TO BE THE FACT."  359 U.S., AT 51, N. 11.  HERE, IT APPEARS
THAT THE CONTEMPTUOUS CONDUCT, THE ADJUDICATION OF GUILT, AND THE
IMPOSITION OF SENTENCE ALL TOOK PLACE AFTER THE PUBLIC HAD BEEN
EXCLUDED FROM THE COURTROOM, IN WHAT BEGAN AND WAS CONTINUED AS "A
GRAND JURY PROCEEDING."  THE EFFECT OF THIS CONTINUING EXCLUSION IN THE
CIRCUMSTANCES OF THE CASE IS THE SOLE QUESTION PRESENTED. 

ON THE MORNING OF  APRIL 18, 1957, PURSUANT TO A SUBPOENA, PETITIONER
APPEARED AS A WITNESS BEFORE A FEDERAL GRAND JURY IN THE SOUTHERN
DISTRICT OF NEW YORK ENGAGED IN INVESTIGATING VIOLATIONS OF THE
INTERSTATE COMMERCE ACT.  HE WAS ASKED SIX QUESTIONS RELEVANT TO THE
GRAND JURY'S INVESTIGATION.  AFTER CONSULTATION WITH HIS ATTORNEY, WHO
WAS IN AN ANTEROOM, HE REFUSED TO ANSWER THEM ON THE GROUND THAT THEY
MIGHT TEND TO INCRIMINATE HIM.  HE PERSISTED IN THIS REFUSAL AFTER
HAVING BEEN DIRECTED TO ANSWER BY THE FOREMAN OF THE GRAND JURY AND
ADVISED BY GOVERNMENT COUNSEL THAT APPLICABLE STATUTES GAVE HIM
COMPLETE IMMUNITY FROM PROSECUTION CONCERNING ANY MATTER AS TO WHICH HE
MIGHT TESTIFY.  SEE 49 U.S.C. SEC. 305(D). 

LATER THAT DAY THE GRAND JURY, GOVERNMENT COUNSEL, PETITIONER AND HIS
ATTORNEY APPEARED BEFORE JUDGE LEVET, SITTING IN THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, THE GRAND JURY HAVING SOUGHT "THE
AID AND ASSISTANCE OF THE COURT, IN A DIRECTION TO A WITNESS, MORRY
LEVINE, WHO HAS THIS MORNING APPEARED BEFORE THE GRAND JURY AND
DECLINED TO ANSWER CERTAIN QUESTIONS THAT HAVE BEEN PUT TO HIM."  THE
RECORD OF THE MORNING'S PROCEEDINGS BEFORE THE GRAND JURY WAS READ. 
AFTER ARGUMENT BY COUNSEL, THE JUDGE RULED THAT THE ADEQUATE IMMUNITY
CONFERRED BY STATUTE DEPRIVED PETITIONER OF THE RIGHT TO REFUSE TO
ANSWER THE QUESTIONS PUT TO HIM.  PETITIONER WAS ORDERED TO APPEAR
BEFORE THE GRAND JURY ON APRIL 22, AND WAS DIRECTED BY THE COURT THEN
TO ANSWER THE QUESTIONS. 

ON THE MORNING OF APRIL 22 PETITIONER APPEARED BEFORE THE GRAND
JURY.  THE QUESTIONS WERE AGAIN PUT TO HIM AND HE AGAIN REFUSED TO
ANSWER.  ONCE AGAIN THE GRAND JURY, GOVERNMENT COUNSEL, PETITIONER AND
HIS COUNSEL WENT BEFORE JUDGE LEVET, FOR "THE ASSISTANCE OF THE COURT
IN REGARD TO THE WITNESS MORRY LEVINE."  AT THIS TIME THE RECORD SHOWS
THE FOLLOWING: 

"THE COURT:  WILL THOSE WHO HAVE NO OTHER BUSINESS IN THE COURTROOM
PLEASE LEAVE NOW?  I HAVE A GRAND JURY PROCEEDING. 

"THE CLERK:  THE MARSHAL WILL CLEAR THE COURT ROOM. 

"(COURT ROOM CLEARED BY THE MARSHALS.)" 

PETITIONER, HIS COUNSEL, THE GRAND JURY, GOVERNMENT COUNSEL AND THE
COURT REPORTER REMAINED.  PETITIONER OBJECTED TO FURTHER PARTICIPATION
BY THE COURT IN THE PROCESS OF COMPELLING HIS TESTIMONY, EXCEPT
ACCORDING TO THE PROCEDURES PRESCRIBED BY RULE 42(B) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE.  THAT PROVISION, WHICH RELATES TO
CONTEMPTS GENERALLY, EXCLUDING THOSE "COMMITTED IN THE ACTUAL PRESENCE
OF THE COURT" AS TO WHICH THE JUDGE CERTIFIES "THAT HE SAW OR HEARD THE
CONDUCT CONSTITUTING THE CONTEMPT," PROVIDES IN EFFECT FOR A
CONVENTIONAL TRIAL.  IN PETITIONER'S VIEW THE COURT WAS COMPELLED TO
REGARD HIS CONTEMPT, IF ANY, AS HAVING ALREADY BEEN COMMITTED OUT OF
THE PRESENCE OF THE COURT, THROUGH PETITIONER'S DISOBEDIENCE BEFORE THE
GRAND JURY THAT MORNING OF THE COURT'S ORDER OF APRIL 18. 

THE JUDGE, HOWEVER, DID NOT TREAT PETITIONER'S RENEWED REFUSAL TO
ANSWER THE GRAND JURY'S QUESTIONS AS A DEFINITIVE CONTEMPT.  HE CHOSE
TO PROCEED JUST AS HE HAD TWO WEEKS EARLIER IN THE CASE OF BROWN,
REVIEWED HERE AS BROWN V. UNITED STATES, SUPRA, 359 U.S. 41.  THE
MORNING'S GRAND JURY PROCEEDINGS, SHOWING PETITIONER'S REFUSALS TO
ANSWER, WERE READ, AND PETITIONER WAS ORDERED BY THE JUDGE TO TAKE THE
STAND.  THE COURT INDICATED IT WAS PROCEEDING AS "THE COURT AND THE
GRAND JURY" "IN ACCORDANCE WITH RULE 42(A)," WHICH RELATES TO THE
PROCEDURE IN CASES OF CONTEMPT "COMMITTED IN THE ACTUAL PRESENCE OF THE
COURT."  OVER OBJECTION, THE COURT THEN PUT TO PETITIONER THE SIX
QUESTIONS WHICH HE HAD REFUSED TO ANSWER WHEN PROPOUNDED BY THE GRAND
JURY.  PETITIONER AGAIN REFUSED TO ANSWER THESE QUESTIONS ON THE CLAIM
OF THE PRIVILEGE AGAINST SELF-INCRIMINATION.  IN ANSWER TO A QUESTION
BY THE COURT HE STATED THAT HE WOULD CONTINUE TO REFUSE ON THAT GROUND
SHOULD THE GRAND JURY AGAIN PUT THE QUESTIONS TO HIM.  GOVERNMENT
COUNSEL ASKED THAT PETITIONER BE ADJUDGED IN CONTEMPT "COMMITTED IN THE
PHYSICAL PRESENCE OF THE JUDGE."  THE COURT ASKED FOR REASONS "WHY I
SHOULD NOT SO ADJUDICATE THIS WITNESS IN CONTEMPT."  PETITIONER'S
COUNSEL MADE THREE POINTS: (1) THAT THE PROCEDURES HAD NOT BEEN IN
ACCORDANCE WITH "THE REQUIREMENTS OF DUE PROCESS"; (2) THAT THE
PROCEDURES HAD NOT FOLLOWED THE REQUIREMENTS OF RULE 42(B) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE; AND (3) THAT, ON THE MERITS OF THE
CHARGE, THE STATUTORY IMMUNITY WAS NOT SUFFICIENTLY EXTENSIVE TO
DEPRIVE PETITIONER OF HIS PRIVILEGE NOT TO ANSWER.  NO REFERENCE WAS
MADE TO THE EXCLUSION OF THE GENERAL PUBLIC FROM THE PROCEEDINGS. 
PETITIONER WAS ADJUDICATED IN CONTEMPT AND, AFTER SUBMISSION BY COUNSEL
OF VIEWS REGARDING SENTENCE, ONE YEAR'S IMPRISONMENT WAS IMPOSED.  THE
CONVICTION WAS AFFIRMED BY THE COURT OF APPEALS, 267 F.2D 335, AND WE
GRANTED CERTIORARI, 361 U.S 860, LIMITING OUR GRANT TO THE QUESTION
LEFT OPEN IN BROWN V. UNITED STATES, NAMELY, WHETHER THE "SECRECY" OF
THE PROCEEDINGS OFFENDED EITHER THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT OF THE CONSTITUTION OR THE PUBLIC-TRIAL REQUIREMENT OF THE
SIXTH AMENDMENT. 

THE COURSE OF PROCEEDING FOLLOWED BY THE DISTRICT COURT IN THIS CASE
FOR COMPELLING PETITIONER'S TESTIMONY WAS THE ONE APPROVED IN BROWN. 
SPECIFICALLY, IT WAS ESTABLISHED BY THAT CASE THAT, AFTER PETITIONER
HAD DISOBEYED THE COURT'S DIRECTION TO ANSWER THE GRAND JURY'S
QUESTIONS BEFORE THAT BODY, IT WAS PROPER FOR THE COURT, UPON
APPLICATION OF THE GRAND JURY, (1) TO DISREGARD ANY CONTEMPT COMMITTED
OUTSIDE ITS PRESENCE; (2) TO PUT THE QUESTIONS DIRECTLY TO PETITIONER
IN THE COURT'S PRESENCE AS WELL AS IN THE PRESENCE OF THE GRAND JURY;
AND (3) TO PUNISH SUMMARILY UNDER RULE 42(A) AS A CONTEMPT COMMITTED
"IN THE ACTUAL PRESENCE OF THE COURT" PETITIONER'S REFUSAL THEREUPON TO
ANSWER. 

IT WAS SURELY NOT ERROR FOR THE JUDGE INITIALLY TO HAVE CLEARED THE
COURTROOM ON APRIL 22 WHEN THE GRAND JURY APPEARED BEFORE HIM FOR THE
SECOND TIME SEEKING HIS "ASSISTANCE  ...  IN REGARD TO THE WITNESS
MORRY LEVINE."  THE SECRECY OF GRAND JURY PROCEEDINGS IS ENJOINED BY
STATUTE (SEE 18 U.S.C. SEC. 1508, AND FEDERAL RULES OF CRIMINAL
PROCEDURE 6(D) AND (E)), AND A NECESSARY INITIAL STEP IN THE
PROCEEDINGS WAS TO READ THE RECORD OF THE MORNING'S GRAND JURY
PROCEEDINGS.  THE PRECISE QUESTION INVOLVED IN THIS CASE, THEREFORE, IS
WHETHER IT WAS ERROR, ONCE THE COURTROOM HAD PROPERLY, INDEED
NECESSARILY, CLEARED, FOR PETITIONER'S CONTEMPT, SUMMARY CONVICTION AND
SENTENCING TO OCCUR WITHOUT INVITING THE GENERAL PUBLIC BACK INTO THE
COURTROOM. 

FROM THE VERY BEGINNING OF THIS NATION AND THROUGHOUT ITS HISTORY THE
POWER TO CONVICT FOR CRIMINAL CONTEMPT HAS BEEN DEEMED AN ESSENTIAL AND
INHERENT ASPECT OF THE VERY EXISTENCE OF OUR COURTS.  THE FIRST
CONGRESS, OUT OF WHOSE 95 MEMBERS 20, AMONG THEM SOME OF THE MOST
DISTINGUISHED LAWYERS, HAD BEEN MEMBERS OF THE PHILADELPHIA CONVENTION,
EXPLICITLY CONFERRED THE POWER OF CONTEMPT UPON THE FEDERAL COURTS. 
WAS RECOGNIZED BY THIS COURT AS EARLY AS 1812, IN A STRIKING WAY. 
UNITED STATES V. HUDSON, 7 CRANCH 32, 34.  AS ZEALOUS A GUARDIAN OF THE
PROCEDURAL SAFEGUARDS OF THE BILL OF RIGHTS AS THE FIRST MR. JUSTICE
HARLAN, IN SUSTAINING THE POWER SUMMARILY TO PUNISH CONTEMPTS COMMITTED
IN THE FACE OF THE COURT, DESCRIBED THE POWER IN THIS WAY:  "THE
OFFENDER MAY, IN  ...  THE COURT'S DISCRETION, BE INSTANTLY APPREHENDED
AND IMMEDIATELY IMPRISONED, WITHOUT TRIAL OR ISSUE, AND WITHOUT OTHER
PROOF THAN ITS ACTUAL KNOWLEDGE OF WHAT OCCURRED; ...  SUCH POWER,
ALTHOUGH ARBITRARY IN ITS NATURE AND LIABLE TO ABUSE, IS ABSOLUTELY
ESSENTIAL TO THE PROTECTION OF THE COURTS IN THE DISCHARGE OF THEIR
FUNCTIONS."  EX PARTE TERRY, 128 U.S. 289, 313 (1888).  IT IS A
PARTICULAR EXERCISE OF THIS POWER OF SUMMARY PUNISHMENT OF CONTEMPT
COMMITTED IN THE COURT'S PRESENCE WHICH IS AT ISSUE IN THIS CASE.  THIS
COURT HAS NOT BEEN WANTING IN EFFECTIVE ALERTNESS TO CHECK ABUSIVE
EXERCISES OF THAT POWER BY FEDERAL JUDGES.  SEE COOKE V. UNITED STATES,
267 U.S. 517; OFFUTT V. UNITED STATES, 348 U.S. 11.  IT WOULD, HOWEVER,
BE THROWING THE BABY OUT WITH THE BATH TO FIND IT NECESSARY, IN THE
NAME OF THE CONSTITUTION, TO STRANGLE A POWER "ABSOLUTELY ESSENTIAL"
FOR THE FUNCTIONING OF AN INDEPENDENT JUDICIARY, WHICH IS THE ULTIMATE
RELIANCE OF CITIZENS IN SAFEGUARDING RIGHTS GUARANTEED BY THE
CONSTITUTION. 

PROCEDURAL SAFEGUARDS FOR CRIMINAL CONTEMPTS DO NOT DERIVE FROM THE
SIXTH AMENDMENT.  CRIMINAL CONTEMPT PROCEEDINGS ARE NOT WITHIN "ALL
CRIMINAL PROSECUTIONS" TO WHICH THAT AMENDMENT APPLIES.  EX PARTE
TERRY, 128 U.S. 289, 306-310; COOKE V. UNITED STATES, 267 U.S. 517, 534
535; OFFUTT V. UNITED STATES, 348 U.S. 11, 14.  BUT WHILE THE RIGHT TO
A "PUBLIC TRIAL" IS EXPLICITLY GUARANTEED BY THE SIXTH AMENDMENT ONLY
FOR "CRIMINAL PROSECUTIONS," THAT PROVISION IS A REFLECTION OF THE
NOTION, DEEPLY ROOTED IN THE COMMON LAW, THAT "JUSTICE MUST SATISFY THE
APPEARANCE OF JUSTICE."  OFFUTT V. UNITED STATES, 348 U.S. 11, AT 14. 
ACCORDINGLY, DUE PROCESS DEMANDS APPROPRIATE REGARD FOR THE
REQUIREMENTS OF A PUBLIC PROCEEDING IN CASES OF CRIMINAL CONTEMPT, SEE
IN RE OLIVER, 333 U.S. 257, AS IT DOES FOR ALL ADJUDICATIONS THROUGH
THE EXERCISE OF THE JUDICIAL POWER, BARRING NARROWLY LIMITED CATEGORIES
OF EXCEPTIONS SUCH AS MAY BE REQUIRED BY THE EXIGENCIES OF WAR, SEE
AMENDMENT TO RULE 46 OF THE ADMIRALTY RULES, JUNE 8, 1942, 316 U.S.
717, REVOKED MAY 6, 1946, 328 U.S. 882, OR FOR THE PROTECTION OF
CHILDREN, SEE 18 U.S.C. SEC. 5033. 

INASMUCH AS THE PETITIONER'S CLAIM THUS DERIVES FROM THE DUE PROCESS
CLAUSE AND NOT FROM ONE OF THE EXPLICITLY DEFINED PROCEDURAL SAFEGUARDS
OF THE CONSTITUTION, DECISION MUST TURN ON THE PARTICULAR CIRCUMSTANCES
OF THE CASE, AND NOT UPON A QUESTION-BEGGING BECAUSE ABSTRACT AND
ABSOLUTE RIGHT TO A "PUBLIC TRIAL."  CF. SNYDER V. MASSACHUSETTS, 291
U.S. 97, 114-117.  THE NARROW QUESTION IS WHETHER, IN LIGHT OF THE
FACTS THAT THE GRAND JURY, PETITIONER AND HIS COUNSEL WERE PRESENT
THROUGHOUT AND THAT PETITIONER NEVER SPECIFICALLY MADE OBJECTION TO THE
CONTINUING SO-CALLED "SECRECY" OF THE PROCEEDINGS OR REQUESTED THAT THE
JUDGE OPEN THE COURTROOM, HE WAS DENIED DUE PROCESS BECAUSE THE GENERAL
PUBLIC REMAINED EXCLUDED FROM THE COURTROOM. 

THE GRAND JURY IS AN ARM OF THE COURT AND ITS IN CAMERA PROCEEDINGS
CONSTITUTE "A JUDICIAL INQUIRY."  HALE V. HENKEL, 201 U.S. 43, 66. 
"THE CONSTITUTION ITSELF MAKES THE GRAND JURY A PART OF THE JUDICIAL
PROCESS.  IT MUST INITIATE PROSECUTION FOR THE MOST IMPORTANT FEDERAL
CRIMES.  IT DOES SO UNDER GENERAL INSTRUCTIONS FROM THE COURT TO WHICH
IT IS ATTACHED AND TO WHICH, FROM TIME TO TIME, IT REPORTS ITS
FINDINGS."  COBBLEDICK V. UNITED STATES, 309 U.S. 323, 327.  UNLIKE AN
ORDINARY JUDICIAL INQUIRY, WHERE PUBLICITY IS THE RULE, GRAND JURY
PROCEEDINGS ARE SECRET.  IN THE ORDINARY COURSE, THEREFORE, CONTEMPT OF
THE COURT COMMITTED THROUGH A REFUSAL TO ANSWER QUESTIONS PUT BEFORE
THE GRAND JURY DOES NOT OCCUR IN A PUBLIC PROCEEDING.  PUBLICITY FULLY
SATISFYING THE REQUIREMENTS OF DUE PROCESS IS ACHIEVED IN SUCH A CASE
WHEN A PUBLIC TRIAL UPON NOTICE IS HELD ON THE CHARGE OF CONTEMPT UNDER
RULE 42(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 

BROWN V. UNITED STATES, SUPRA, ESTABLISHED THAT A GRAND JURY AS AN
ARM OF THE COURT HAS AVAILABLE TO IT ANOTHER COURSE TO VINDICATE ITS
AUTHORITY OVER A LAWLESSLY RECALCITRANT WITNESS.  APPEAL MAY BE MADE TO
THE COURT UNDER WHOSE AEGIS THE GRAND JURY SITS TO HAVE THE WITNESS
ORDERED TO ANSWER THE GRAND JURY'S INQUIRIES IN THE JUDGE'S PHYSICAL
PRESENCE, SO THAT THE COURT'S PERSUASIVE EXERTION TO INDUCE OBEDIENCE,
AND ITS POWER SUMMARILY TO COMMIT FOR CONTEMPT SHOULD ITS AUTHORITY BE
IGNORED, MAY BE BROUGHT TO BEAR UPON HIM.  SINCE SUCH A SUMMARY
ADJUDICATION OF CONTEMPT OCCURS IN THE MIDST OF A GRAND JURY
PROCEEDING, A CLASH MAY ARISE BETWEEN THE INTEREST, SANCTIONED BY
HISTORY AND STATUTE, IN PRESERVING THE SECRECY OF GRAND JURY
PROCEEDINGS, AND THE INTEREST, DERIVING FROM THE DUE PROCESS CLAUSE, IN
PRESERVING THE PUBLIC NATURE OF COURT PROCEEDINGS.    IN THE PRESENT
CASE GRAND JURY SECRECY FREELY GAVE WAY INSOFAR AS PETITIONER'S COUNSEL
WAS PRESENT AND WAS PERMITTED TO BE FULLY ACTIVE IN BEHALF OF HIS
CLIENT THROUGHOUT THE PROCEEDINGS BEFORE JUDGE LEVET.  PETITIONER HAD
AMPLE NOTICE OF THE COURT'S INTENTION TO PUT THE GRAND JURY'S QUESTIONS
DIRECTLY TO HIM, AND TO PROCEED AGAINST HIM SUMMARILY SHOULD HE PERSIST
IN HIS REFUSAL TO ANSWER.  HAD PETITIONER REQUESTED, AND THE COURT
DENIED HIS WISH, THAT THE COURTROOM BE OPENED TO THE PUBLIC BEFORE THE
FINAL STAGE OF THESE PROCEEDINGS WE WOULD HAVE A DIFFERENT CASE. 
PETITIONER HAD NO RIGHT TO HAVE THE GENERAL PUBLIC PRESENT WHILE THE
GRAND JURY'S QUESTIONS WERE BEING READ.  HOWEVER, AFTER THE RECORD OF
THE MORNING'S GRAND JURY PROCEEDINGS HAD BEEN READ, AND THE SIX
QUESTIONS PUT TO PETITIONER WITH A DIRECTION THAT HE ANSWER THEM IN THE
COURT'S PRESENCE, THERE WAS NO FURTHER CAUSE FOR ENFORCING SECRECY IN
THE SENSE OF EXCLUDING THE GENERAL PUBLIC.  HAVING REFUSED TO ANSWER
EACH QUESTION IN TURN, AND HAVING RESOLVED NOT TO ANSWER AT ALL,
PETITIONER THEN MIGHT WELL HAVE INSISTED THAT, AS SUMMARY PUNISHMENT
WAS TO BE IMPOSED, THE COURTROOM BE OPENED SO THAT THE ACT OF CONTEMPT,
THAT IS, HIS DEFINITIVE REFUSAL TO COMPLY WITH THE COURT'S DIRECTION TO
ANSWER THE PREVIOUSLY PROPOUNDED QUESTIONS, AND THE CONSEQUENT
ADJUDICATION AND SENTENCE MIGHT OCCUR IN PUBLIC.  SEE COOKE V. UNITED
STATES, 267 U.S. 517, 534-536.  TO REPEAT, SUCH A CLAIM EVIDENTLY WAS
NOT IN PETITIONER'S THOUGHT, AND NO REQUEST TO OPEN THE COURTROOM WAS
MADE AT ANY STAGE OF THE PROCEEDINGS. 

THE CONTINUING EXCLUSION OF THE PUBLIC IN THIS CASE IS NOT TO BE
DEEMED CONTRARY TO THE REQUIREMENTS OF THE DUE PROCESS CLAUSE WITHOUT A
REQUEST HAVING BEEN MADE TO THE TRIAL JUDGE TO OPEN THE COURTROOM AT
THE FINAL STAGE OF THE PROCEEDING, THEREBY GIVING NOTICE OF THE CLAIM
NOW MADE AND AFFORDING THE JUDGE AN OPPORTUNITY TO AVOID RELIANCE ON
IT.  THIS WAS NOT A CASE OF THE KIND OF SECRECY THAT DEPRIVED
PETITIONER OF EFFECTIVE LEGAL ASSISTANCE AND RENDERED IRRELEVANT HIS
FAILURE TO INSIST UPON THE CLAIM HE NOW MAKES.  COUNSEL WAS PRESENT
THROUGHOUT, AND IT IS NOT CLAIMED THAT HE WAS NOT FULLY AWARE OF THE
EXCLUSION OF THE GENERAL PUBLIC.  THE PROCEEDINGS PROPERLY BEGAN OUT OF
THE PUBLIC'S PRESENCE AND ONE STAGE OF THEM FLOWED NATURALLY INTO THE
NEXT.  THERE WAS NO OBVIOUS POINT AT WHICH, IN LIGHT OF THE PRESENCE OF
COUNSEL, IT CAN BE SAID THAT THE ONUS WAS IMPERATIVELY UPON THE TRIAL
JUDGE TO INTERRUPT THE COURSE OF PROCEEDINGS UPON HIS OWN MOTION AND
ESTABLISH A CONVENTIONAL PUBLIC TRIAL.  WE CANNOT VIEW PETITIONER'S
UNTENABLE GENERAL OBJECTION TO THE NATURE OF THE PROCEEDINGS BY
INVOKING RULE 42(B) AS CONSTITUTING APPROPRIATE NOTICE OF AN OBJECTION
TO THE EXCLUSION OF THE GENERAL PUBLIC IN THE CIRCUMSTANCES OF THIS
PROCEEDING UNDER RULE 42(A). 

THIS CASE IS WHOLLY UNLIKE IN RE OLIVER, 333 U.S. 257.  THIS IS NOT A
CASE WHERE IT IS OR COULD BE CHARGED THAT THE JUDGE DELIBERATELY
ENFORCED SECRECY IN ORDER TO BE FREE OF THE SAFEGUARDS OF THE PUBLIC'S
SCRUTINY; NOR IS IT URGED THAT PUBLICITY WOULD IN THE SLIGHTEST HAVE
AFFECTED THE CONDUCT OF THE PROCEEDINGS OR THEIR RESULT.  NOR ARE WE
DEALING WITH A SITUATION WHERE PREJUDICE, ATTRIBUTABLE TO SECRECY, IS
FOUND TO BE SUFFICIENTLY IMPRESSIVE TO RENDER IRRELEVANT FAILURE TO
MAKE A TIMELY OBJECTION AT PROCEEDINGS LIKE THESE.  THIS IS OBVIOUSLY
NOT SUCH A CASE.  DUE REGARD GENERALLY FOR THE PUBLIC NATURE OF THE
JUDICIAL PROCESS DOES NOT REQUIRE DISREGARD OF THE SOLID DEMANDS OF THE
FAIR ADMINISTRATION OF JUSTICE IN FAVOR OF A PARTY WHO, AT THE
APPROPRIATE TIME AND ACTING UNDER ADVICE OF COUNSEL, SAW NO DISREGARD
OF A RIGHT, BUT RAISES AN ABSTRACT CLAIM ONLY AS AN AFTERTHOUGHT ON
APPEAL.  AFFIRMED. 

MR. JUSTICE BLACK, WHOM THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS
JOIN, DISSENTING. 

THE COURT HERE UPHOLDS THE PETITIONER'S CONVICTION AND IMPRISONMENT
FOR CONTEMPT OF COURT IN REFUSING TO ANSWER GRAND JURY QUESTIONS,
ALTHOUGH ADMITTING THAT "THE CONTEMPTUOUS CONDUCT, THE ADJUDICATION OF
GUILT, AND THE IMPOSITION OF SENTENCE ALL TOOK PLACE AFTER THE PUBLIC
HAD BEEN EXCLUDED FROM THE COURTROOM, IN WHAT BEGAN AND WAS CONTINUED
AS 'A GRAND JURY PROCEEDING.'"  STATED NOT QUITE SO EUPHEMISTICALLY THE
COURT IS SIMPLY SAYING THAT THIS PETITIONER WAS SUMMARILY CONVICTED AND
SENTENCED TO A ONE-YEAR PRISON TERM AFTER A "TRIAL" FROM WHICH THE
PUBLIC WAS EXCLUDED - A GOVERNMENTAL TRIAL TECHNIQUE THAT LIBERTY
LOVING PEOPLE HAVE WITH GREAT REASON FEARED AND HATED IN ALL AGES. 

THIS COURT CONDEMNED SUCH SECRET "TRIALS" 12 YEARS AGO IN THE CASE OF
IN RE OLIVER, 333 U.S. 257.  THERE OLIVER HAD BEEN CONVICTED BY A
MICHIGAN STATE COURT AND SENTENCED TO JAIL FOR 60 DAYS ON A CHARGE OF
CONTEMPT BASED ON HIS REFUSAL TO ANSWER QUESTIONS PROPOUNDED BY A ONE
MAN GRAND JURY.  SINCE THE PUBLIC HAD BEEN EXCLUDED FROM OLIVER'S
"TRIAL" WE WERE SQUARELY FACED WITH THIS PRECISE QUESTION:  "CAN AN
ACCUSED BE TRIED AND CONVICTED FOR CONTEMPT OF COURT IN GRAND JURY
SECRECY?"  ID., AT 265-266.  OUR ANSWER WAS AN EMPHATIC "NO," ALTHOUGH
MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON DISSENTED.  WE HELD
THAT MICHIGAN HAD DENIED OLIVER DUE PROCESS OF LAW GUARANTEED BY THE
FOURTEENTH AMENDMENT BY CONVICTING HIM OF CONTEMPT IN A TRIAL FROM
WHICH THE PUBLIC WAS EXCLUDED.  IN THE COURSE OF OUR DECISION WE SAID
THIS: 

"COUNSEL HAVE NOT CITED AND WE HAVE BEEN UNABLE TO FIND A SINGLE
INSTANCE OF A CRIMINAL TRIAL CONDUCTED IN CAMERA IN ANY FEDERAL, STATE,
OR MUNICIPAL COURT DURING THE HISTORY OF THIS COUNTRY.  NOR HAVE WE
FOUND ANY RECORD OF EVEN ONE SUCH SECRET CRIMINAL TRIAL IN ENGLAND
SINCE ABOLITION OF THE COURT OF STAR CHAMBER IN 1641, AND WHETHER THAT
COURT EVER CONVICTED PEOPLE SECRETLY IS IN DISPUTE.  SUMMARY TRIALS FOR
ALLEGED MISCONDUCT CALLED CONTEMPT OF COURT HAVE NOT BEEN REGARDED AS
AN EXCEPTION TO THIS UNIVERSAL RULE AGAINST SECRET TRIALS, UNLESS SOME
OTHER MICHIGAN ONE-MAN GRAND JURY CASE MAY REPRESENT SUCH AN
EXCEPTION."  ID., 266. 

IT SEEMS APPARENT, THEREFORE, THAT THE COURT IN UPHOLDING
PETITIONER'S SENTENCE FOR CONTEMPT HERE IS NOT ONLY REPUDIATING OUR
OLIVER DECISION IN WHOLE OR IN PART BUT IS AT THE SAME TIME APPROVING A
SECRET TRIAL PROCEDURE WHICH APOLOGISTS FOR THE STAR CHAMBER HAVE
ALWAYS BEEN CAREFUL TO DENY EVEN THAT UNLIMITED AND UNLAMENTED COURT
EVER USED.  THE COURT HOLDS THAT PETITIONER'S SECRET TRIAL HERE
VIOLATED NEITHER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT NOR THE
SIXTH AMENDMENT'S GUARANTEE THAT "IN ALL CRIMINAL PROSECUTIONS, THE
ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL ...  ." 
CERTAINLY THE ONE-YEAR PRISON SENTENCE FOR CRIMINAL CONTEMPT HERE, LIKE
THE THREE-YEAR CRIMINAL CONTEMPT SENTENCE IN GREEN V. UNITED STATES,
356 U.S. 165, HAS ALL THE EARMARKS AND THE CONSEQUENCES OF A PLAIN,
ORDINARY CRIMINAL PROSECUTION.  ID., 193 (DISSENTING OPINION). 

IN THE GREEN CASE I ASKED FOR A REAPPRAISAL OF THE WHOLE DOCTRINE OF
SUMMARY CONTEMPT TRIALS.  I REPEAT THAT "I CANNOT HELP BUT BELIEVE THAT
THIS ARBITRARY POWER TO PUNISH BY SUMMARY PROCESS, AS NOW USED, IS
UTTERLY IRRECONCILABLE WITH FIRST PRINCIPLES UNDERLYING OUR
CONSTITUTION AND THE SYSTEM OF GOVERNMENT IT CREATED  ...  ."  GREEN V.
UNITED STATES, SUPRA, AT 208.  THIS CASE ILLUSTRATES ONCE MORE THE
DANGERS OF SUCH TRIALS AND THE FACT THAT IT IS NOTHING BUT A FICTION TO
SAY THAT BY LABELING A PROSECUTION AS ONE FOR "CONTEMPT" IT IS CHANGED
FROM THAT WHICH IT ACTUALLY IS - A CRIMINAL PROSECUTION FOR CRIMINAL
PUNISHMENT - A PROCEDURE WHICH IS BEING USED MORE AND MORE EACH YEAR AS
A SUBSTITUTE FOR TRIALS WITH BILL OF RIGHTS SAFEGUARDS.  THE LENGTH TO
WHICH THE COURT IS GOING IN THIS CASE - DEPRIVING PETITIONER OF THE
SPECIFIC PUBLIC TRIAL SAFEGUARD OF THE SIXTH AMENDMENT AND HOLDING THAT
HE HAS NO MORE THAN WHATEVER MEASURE OF PROTECTION THE COURT CHOOSES TO
GIVE HIM UNDER ITS FLEXIBLE INTERPRETATION OF THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT - IS SHOWN BY ITS EXPRESS DECLARATION THAT THE
SIXTH AMENDMENT'S GUARANTEE OF A PUBLIC TRIAL FOR THOSE CHARGED WITH A
CRIME PROVIDES NO PROTECTION AT ALL IF THE CRIME CHARGED IS LABELED
"CONTEMPT."  AND THE COURT CITES NO CASE HOLDING THAT THE PUBLIC TRIAL
PROVISION OF THAT AMENDMENT DOES NOT APPLY TO CRIMINAL CONTEMPT
PROCEEDINGS. 

I WHOLLY REJECT THE IDEA THAT THE PRESENCE OF ANY POWER SO AWESOME
AND ARBITRARY AS "CRIMINAL CONTEMPT" HAS GROWN TO BE, AS NOURISHED BY
COURTS, IS ESSENTIAL TO PRESERVE THE INDEPENDENCE OF THE JUDICIARY AND
I AM CONSTRAINED TO SAY THAT SUCH A PLEA OF NECESSITY HAS A STRANGE
SOUND WHEN VOICED BY OUR INDEPENDENT JUDICIARY DEDICATED TO FAIR TRIALS
IN ACCORDANCE WITH ANCIENT SAFEGUARDS.  IT IS PERTINENT HERE TO REPEAT
THE STATEMENT OF ONE OF OUR GREAT LAWYERS, EDWARD LIVINGSTON, WHO SAID:
" 'NOT ONE OF THE OPPRESSIVE PREROGATIVES OF WHICH THE CROWN HAS BEEN
SUCCESSIVELY STRIPPED, IN ENGLAND, BUT WAS IN ITS DAY, DEFENDED ON THE
PLEA OF NECESSITY.  NOT ONE OF THE ATTEMPT TO DESTROY THEM, BUT WAS
DEEMED A HAZARDOUS INNOVATION.'"  GREEN V. UNITED STATES, SUPRA, AT 214
(DISSENTING OPINION). 

IN THE CLOSING PART OF ITS OPINION THE COURT INDICATES THAT ITS
DECISION RESTS TO SOME EXTENT UPON A FAILURE OF PETITIONER TO MAKE THE
PROPER KIND OF OBJECTION TO THE SECRECY OF HIS TRIAL.  HIS OBJECTION IS
REFERRED TO AS "AN ABSTRACT CLAIM (RAISED) ONLY AS AN AFTERTHOUGHT ON
APPEAL."  THE COURT THINKS THAT THE TRIAL JUDGE WAS NOT GIVEN "AN
OPPORTUNITY TO AVOID RELIANCE ON THE CLAIM NOW MADE."  THE RECORD
SHOWS, HOWEVER, THAT ON THE TWO OCCASIONS PETITIONER WAS BROUGHT BEFORE
THE COURT, HE REQUESTED A TRIAL ACCORDING TO DUE PROCESS, NOTICE AND
SPECIFICATION OF THE CHARGES AGAINST HIM, AN OPPORTUNITY TO PREPARE HIS
DEFENSES, AN ADJOURNMENT TO OBTAIN COMPULSORY PROCESS AND SUBPOENA
WITNESSES AS WELL AS, IN GENERAL, PROCEEDINGS UNDER RULE 42(B), WHICH
UNDOUBTEDLY CALLS FOR A PUBLIC TRIAL.  PETITIONER'S OBJECTION SEEMS
SUFFICIENT TO ME TO RAISE THE EXTREMELY IMPORTANT POINT OF HIS
CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL. 

DESPITE THE COURT'S DECISION THAT PETITIONER'S REPEATED CLAIMS FOR
CONSTITUTIONAL PROCEDURES WERE NOT ENOUGH TO RAISE THE
CONSTITUTIONALITY OF HIS SECRET "TRIAL," THERE IS AN INTIMATION IN THE
COURT'S OPINION THAT MAYBE AT SOME FUTURE TIME, IN SOME FUTURE CONTEMPT
CONVICTION, THE COURT WOULD FROWN UPON EXCLUSION OF THE PUBLIC FROM
SOME PART OF A CONTEMPT TRIAL SUCH AS THIS.  HERE IT IS SAID, HOWEVER,
"THE PROCEEDINGS PROPERLY BEGAN OUT OF THE PUBLIC'S PRESENCE AND ONE
STAGE OF THEM FLOWED NATURALLY INTO THE NEXT.  THERE WAS NO OBVIOUS
POINT AT WHICH, IN LIGHT OF THE PRESENCE OF COUNSEL, IT CAN BE SAID
THAT THE ONUS WAS IMPERATIVELY UPON THE TRIAL JUDGE TO INTERRUPT THE
COURSE OF PROCEEDINGS UPON HIS OWN MOTION AND ESTABLISH A CONVENTIONAL
PUBLIC TRIAL."  THE THEORY OF THE COURT HERE SEEMS TO BE THAT SINCE
GRAND JURY HEARINGS IN THE GRAND JURY ROOM ARE SECRET, THE GRAND JURY'S
PROCEEDINGS IN COURT AGAINST ALLEGEDLY RECALCITRANT WITNESSES MAY ALSO
BE IN SECRET.  BUT SURELY THIS CANNOT BE.  THE GRAND JURY HAS TO REPORT
TO THE JUDGE TO INVOKE HIS ASSISTANCE AND IT DID SO IN THIS CASE,
BRINGING LEVINE ALONG.  THE GRAND JURY THEN PREFERRED CHARGES AGAINST
HIM TO THE COURT.  TO SAY THAT GRAND JURY SECRECY EXTENDS INTO THE
COURTROOM IS WHOLLY TO IGNORE THE DIFFERENCE BETWEEN SECRECY OF GRAND
JURY DELIBERATIONS AND VOTES, AND SECRECY OF A TRIAL FOR CONTEMPT.  NOT
ONLY ARE THE GRAND JURY DELIBERATIONS SUPPOSED TO BE FREE FROM THE
INTRUSIONS OF OTHERS, BUT THE IDEA OF A GRAND JURY IS ONE OF AN
INDEPENDENT BODY, WHICH EVEN THE JUDGE SHALL NOT BE ALLOWED TO
INTERFERE WITH OR CONTROL.  SEE, E.G., STIRONE V. UNITED STATES, 361
U.S. 212, 218.  THE GRAND JURY DID NOT ENTER THE COURTROOM TO
DELIBERATE OR TO VOTE; IT WENT THERE AND TOOK THE PETITIONER THERE IN
ORDER TO ASK THE COURT TO COMPEL HIM TO TESTIFY UNDER PENALTY OF
CONTEMPT.  AT THAT MOMENT THE GRAND JURY DELIBERATIONS WERE TEMPORARILY
ENDED AND A COURT PROCEEDING AGAINST PETITIONER BEGAN.  IT WAS THEN
THAT THERE AROSE PETITIONER'S CONSTITUTIONAL RIGHT TO BE FREE FROM
SECRET PROCEDURES GRAVELY JEOPARDIZING HIS LIBERTY OR PROPERTY.  (FN1)
THE JUDGE HAS NO MORE RIGHT OR POWER UNDER THE LAW TO INTRUDE ON THE
SECRET DELIBERATIONS OF A GRAND JURY THAN ANYONE ELSE.  GRAND JURIES,
AS THIS COURT HAS SAID, "'  ...  ARE NOT APPOINTED FOR THE PROSECUTOR
OR FOR THE COURT; THEY ARE APPOINTED FOR THE GOVERNMENT AND FOR THE
PEOPLE  ...  .'"  HALE V. HENKEL, 201 U.S. 43, 61.  SEE ALSO COSTELLO
V. UNITED STATES, 350 U.S. 359, 362.  WHEN THE GRAND JURY CAME INTO THE
COURTROOM WITH THE PETITIONER IT WAS TO GET IMMEDIATE ACTION AGAINST
THE PETITIONER UNDER ITS CHARGES, WHICH THE COURT NOW HOLDS THE JUDGE
WAS ENTITLED TO TRY SUMMARILY AND SECRETLY WITHOUT FURTHER NOTICE. 
THIS WAS THE KIND OF TRIAL FROM WHICH THE PUBLIC SHOULD NOT BE EXCLUDED
IF WE ARE TO FOLLOW CONSTITUTIONAL COMMANDS.  IN FACT, I BELIEVE, AS I
SAID IN GREEN V. UNITED STATES, SUPRA, THAT AT THE VERY LEAST A MAN
WHOSE LIBERTY MAY BE TAKEN AWAY FOR A PERIOD OF MONTHS OR YEARS AS
PUNISHMENT, IS ENTITLED TO A FULL-FLEDGED, CONSTITUTIONAL, BILL OF
RIGHTS TRIAL.  (FN2) 

THE COURT SEEMS TO CONCLUDE ITS HOLDING BY INVOKING THE DOCTRINE OF
ERROR WITHOUT INJURY.  IN MY JUDGMENT IT IS SCANT RESPECT FOR THE
CONSTITUTIONAL COMMAND THAT TRIALS BE HAD IN PUBLIC TO LOOK AT THE
CIRCUMSTANCES OF THE TRIAL AND CONVICTION OF A MAN TRIED IN SECRET AND
APPROVE THE TRIAL ON THE GROUND THAT "ANYHOW HE WASN'T HURT."  I THINK
EVERY MAN IS HURT WHEN ANY DEFENDANT IN AMERICA IS CONVICTED AND SENT
TO THE PENITENTIARY AFTER A SECRET "TRIAL" WHICH IS CONDEMNED BY THE
CONSTITUTION'S REQUIREMENT OF PUBLIC TRIALS AS WELL AS ITS COMMAND THAT
ALL TRIALS BE CONDUCTED ACCORDING TO DUE PROCESS OF LAW.    FN1  I OMIT
THE WORD "LIFE" FROM THE USUAL PHRASE "LIFE, LIBERTY OR PROPERTY"
BECAUSE THE COURTS HAVE NOT YET SAID THAT THEIR VAST POWER TO PUNISH
FOR CONTEMPT EXTENDS TO TAKING THE LIFE OF THE CONVICTED DEFENDANT. 

FN2  IT IS TO BE BORNE IN MIND THAT PETITIONER IS NOT TO BE PUT IN
JAIL WITH THE KEYS IN HIS POCKET, SO THAT HE WOULD BE RELEASED
IMMEDIATELY UPON COMPLYING WITH THE COURT'S VALID ORDER, SEE BROWN V.
UNITED STATES, 359 U.S. 41, 55 (DISSENTING OPINION), BUT IS BEING
PUNISHED BY A YEAR'S IMPRISONMENT FOR A PAST AND COMPLETED OFFENSE. 
SEE, ID., 53 (DISSENTING OPINION); GREEN V. UNITED STATES, SUPRA, AT
197 (DISSENTING OPINION).    MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE
DOUGLAS JOINS, DISSENTING. 

THE COURT'S OPINION MAKES IT PLAIN THAT THE PETITIONER WAS
ADJUDICATED GUILTY OF CRIMINAL CONTEMPT THROUGH A PROCEEDING FROM WHICH
THE PUBLIC WAS EXCLUDED.  AND THE WHOLE COURT IS AGREED THAT, WHETHER
PETITIONER'S RIGHT IS FOUNDED ON THE FIFTH OR THE SIXTH AMENDMENT, HE
POSSESSED A RIGHT, GUARANTEED BY THE CONSTITUTION, THAT THIS
ADJUDICATION OF HIS GUILT OF CRIME BE MADE IN PUBLIC. 

BUT THE COURT CONCLUDES THAT DESPITE THIS, THE PETITIONER IS NOT
ENTITLED TO OUR JUDGMENT OF REVERSAL BECAUSE HE DID NOT OBJECT IN
PRECISE ENOUGH TERMS TO THIS INFRINGEMENT OF HIS CONSTITUTIONAL
RIGHTS.  ITS RULING IS, I SUBMIT, A RADICAL DEPARTURE FROM THE
PRINCIPLES WHICH HAVE PREVAILED, AND SHOULD CONTINUE TO PREVAIL, IN
THIS COURT RESPECTING THE WAIVER OF A CRIMINAL DEFENDANT'S
CONSTITUTIONAL PROCEDURAL RIGHTS.  THE KEY TO THE MATTER HAS BEEN THE
DEFENDANT'S CONSENT - HIS "EXPRESS, INTELLIGENT CONSENT."  ADAMS V.
UNITED STATES EX REL. MCCANN, 317 U.S. 269, 277.  THE SPECIAL INTEREST
OF THE PUBLIC IN THE PUBLICITY OF ADJUDICATIONS OF GUILT OF CRIME HAS
BEEN REPEATEDLY POINTED OUT JUDICIALLY, SEE UNITED STATES V. KOBLI, 172
F.2D 919, 924; DAVIS V. UNITED STATES, 247 F. 394, 395-396; NEAL V.
STATE, 86 OKLA. CRIM. 283, 289, 192 P.2D 294, 297, AND THIS HAS LED
SOME TO ARGUE THAT EVEN THE DEFENDANT'S EXPRESS CONSENT SHOULD NOT
SUFFICE TO PERMIT PROCEEDINGS TO BE HAD IN SECRET.  KIRSTOWSKY V.
SUPERIOR COURT, 143 CAL. APP. 2D 745, 300 P.2D 163; UNITED PRESS
ASSNS.  V. VALENTE, 308 N.Y. 71, 93, 123 N.E.2D 777, 788 (DISSENTING
OPINION).  BUT THOUGH THE DEFENDANT'S POWER TO WAIVE THE CONSTITUTIONAL
PROTECTION BE ASSUMED, THIS CONSIDERATION UNDERSCORES HOW IMPERATIVE IS
THE REQUIREMENT THAT THE WAIVER OF PUBLICITY BE A MEANINGFUL ONE, BASED
ON REAL CONSENT - BE PART OF THE "DEFENDANT'S OWN CONDUCT OF HIS
DEFENSE."  ID., AT 81, 123 N.E.2D, AT 780 (MAJORITY OPINION).  THE
WAIVER MUST BE ONE BASED ON THE DEFENDANT'S CONCLUSION THAT "IN HIS
PARTICULAR SITUATION HIS INTERESTS WILL BE BETTER SERVED BY FOREGOING
THE PRIVILEGE THAN BY EXERCISING IT."  UNITED STATES V. SORRENTINO, 175
F.2D 721, 723. 

THIS REQUIREMENT COULD NOT BY THE GREATEST STRETCH OF THE IMAGINATION
BE SAID TO HAVE BEEN MET HERE.  HERE PETITIONER'S COUNSEL BY NO MEANS
CONSENTED TO THE PROCEEDINGS, BUT REPEATEDLY MADE THE MOST FUNDAMENTAL
OBJECTIONS TO THE PROCEDURE WHEREBY HIS CLIENT WAS BEING ADJUDICATED
GUILTY OF CRIME, BASED ON THE CRIMINAL RULES AND ON THE VERY PROVISION
OF THE CONSTITUTION WHICH THE COURT TODAY FINDS APPLICABLE.  IF THE
OBJECTION HAD BEEN SUSTAINED, AND THE PROCEDURE CONTENDED FOR ADOPTED,
THE ERROR NOW LAID BARE WOULD NOT HAVE BEEN COMMITTED.  WHETHER THE
OBJECTION WAS WELL TAKEN ON ITS OWN GROUNDS IS IRRELEVANT, SINCE IT IS
CONSENT THAT MUST BE FOUND.  THE QUESTION IS NOT WHETHER THE TRIAL
COURT WAS APPRISED OF ITS ERROR IN THE TALISMANIC LANGUAGE THE COURT
NOW FINDS IN RETROSPECT TO HAVE BEEN ESSENTIAL.  THERE ARE, TO BE SURE,
TRIAL ERRORS AS TO WHICH SPECIFIC OBJECTION IS REQUIRED OF COUNSEL. 
BUT WHERE FUNDAMENTAL CONSTITUTIONAL GUARANTEES ARE OMITTED, THE
QUESTION IS RATHER WHETHER CONSENT TO PROCEED WITHOUT THE
CONSTITUTIONAL PROTECTION CAN BE FOUND.  IT IS PATENT HERE THAT IT
CANNOT.  OF COURSE, THIS PRINCIPLE IS HARDLY TO BE ALTERED BY THE
COURT'S TRANSPARENT SEMANTIC DEVICE OF PHRASING THE CONSTITUTIONAL
RIGHT OF THIS DEFENDANT AS ONE THAT DID NOT COME INTO EXISTENCE UNTIL
HE MADE EXPLICIT REQUEST THAT HE HAVE ITS BENEFITS.*  THE JUDGMENT
SHOULD BE REVERSED. 

*APPARENTLY THROUGH THE SAME DEVICE THE COURT HAS AVOIDED THE SETTLED
RULE OF THE FEDERAL COURTS THAT A SHOWING OF PREJUDICE IS NOT NECESSARY
FOR REVERSAL OF A CONVICTION NOT HAD IN PUBLIC PROCEEDINGS.  DAVIS V.
UNITED STATES, 247 F. 394, 398-399 (C.A. 8TH CIR.); TANKSLEY V. UNITED
STATES, 145 F.2D 58, 59 (C.A. 9TH CIR.); UNITED STATES V. KOBLI, 172
F.2D 919, 921 (C.A. 3D CIR.). SEE PEOPLE V. JELKE, 308 N.Y. 56, 67-68,
123 N.E.2D 769, 775. 
..END :





ROHR AIRCRAFT CORP. V. COUNTY OF SAN DIEGO 362 U.S. 628 


NO. 295.  ARGUED MARCH 30, 1960 - DECIDED MAY 23, 1960 - 51 CAL. 2D 759,
336 P.2D 521, REVERSED. 


1.  IN THIS CASE, IN WHICH A TAXPAYER DID NOT EXPLICITLY CHALLENGE A
STATE TAX STATUTE AS BEING REPUGNANT TO THE FEDERAL CONSTITUTION,
TREATIES OR STATUTES, BUT CHALLENGED A LOCAL TAX ASSESSMENT ON THE
GROUND THAT IT INFRINGED THE TAXPAYER'S FEDERAL RIGHTS, PRIVILEGES OR
IMMUNITIES, THIS COURT DID NOT HAVE JURISDICTION UNDER 28 U.S.C. SEC.
1257 OF AN APPEAL FROM A DECISION OF A STATE SUPREME COURT SUSTAINING
THE VALIDITY OF THE TAX; BUT THE APPEAL WAS TREATED UNDER 28 U.S.C.
SEC. 2103 AS A PETITION FOR CERTIORARI, AND CERTIORARI WAS GRANTED. 
PP. 629-630. 

2.  CERTAIN REAL ESTATE OWNED BY THE RECONSTRUCTION FINANCE
CORPORATION AND SUBJECTED BY SEC. 8 OF THE RECONSTRUCTION FINANCE
CORPORATION ACT TO STATE AND LOCAL TAXATION WAS DECLARED SURPLUS AND
SURRENDERED TO THE WAR ASSETS ADMINISTRATION FOR DISPOSAL UNDER THE
PROVISIONS OF THE SURPLUS PROPERTY ACT OF 1944, WHICH, INTER ALIA,
AUTHORIZED THE WAR ASSETS ADMINISTRATION AND ITS SUCCESSOR, THE GENERAL
SERVICES ADMINISTRATION, TO MAKE DISPOSITION OF THE PROPERTY ON SUCH
TERMS AS IT SAW FIT AND TO EXECUTE AND DELIVER ALL NECESSARY PAPERS
INCIDENT TO TRANSFER OF TITLE.  HELD:  EVEN BEFORE EXECUTION OF A
QUITCLAIM DEED TRANSFERRING TITLE FROM THE RECONSTRUCTION FINANCE
CORPORATION TO THE UNITED STATES, SUCH REAL ESTATE HAD CEASED TO BE
SUBJECT TO STATE AND LOCAL TAXATION AS "REAL PROPERTY OF THE
RECONSTRUCTION FINANCE CORPORATION," EVEN THOUGH THE PROPERTY WAS
LEASED TO A PRIVATE LESSEE IN THE NAME OF BOTH THE RECONSTRUCTION
FINANCE CORPORATION AND THE UNITED STATES.  PP. 630-636. 

ROHR AIRCRAFT CORP. V. COUNTY OF SAN DIEGO ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION TO BE DECIDED IS WHETHER REAL PROPERTY DECLARED TO BE
SURPLUS UNDER THE SURPLUS PROPERTY ACT OF 1944, 58 STAT. 765, BUT THE
RECORD TITLE TO WHICH IS IN THE RECONSTRUCTION FINANCE CORPORATION,
CONTINUES TO BE SUBJECT TO LOCAL TAXATION UNDER THE EXEMPTION OF SEC. 8
OF THE RECONSTRUCTION FINANCE CORPORATION ACT, 47 STAT. 5.  (FN1)  THE
SUPREME COURT OF CALIFORNIA AND THE SUPREME COURT OF MICHIGAN (FN2)
HAVE HELD THAT IT DOES.  THE COURT OF CLAIMS HAS REACHED THE OPPOSITE
CONCLUSION.  (FN3)  IN VIEW OF THIS CONFLICT WE AGREED TO HEAR THIS
CASE, BUT POSTPONED CONSIDERATION OF THE QUESTION OF JURISDICTION TO
THE HEARING ON THE MERITS.  361 U.S. 859. 

ON THE QUESTION OF JURISDICTION, WE BELIEVE THAT APPELLANT DID NOT
MAKE THE REQUIRED "EXPLICIT AND TIMELY INSISTENCE IN THE STATE COURTS
THAT A STATE STATUTE, AS APPLIED, IS REPUGNANT TO THE FEDERAL
CONSTITUTION, TREATIES OR LAWS  ...  .  AND IT HAS LONG BEEN SETTLED
THAT AN ATTACK UPON A TAX ASSESSMENT OR LEVY, SUCH AS APPELLANT HERE
MADE, ON THE GROUND THAT IT INFRINGES A TAXPAYER'S FEDERAL RIGHTS,
PRIVILEGES, OR IMMUNITIES, WILL NOT SUSTAIN AN APPEAL  ...  ." 
CHARLESTON FEDERAL SAVINGS & LOAN ASSN. V. ALDERSON, 324 U.S. 182, 185
(1945).  (FN4)  THE APPEAL IS THEREFORE DISMISSED.  WHILE THE CASE IS
NOT PROPERLY HERE BY APPEAL, WE TREAT THE SAME AS A PETITION FOR
CERTIORARI UNDER 28 U.S.C. SEC. 2103.  (FN5)  THE PETITION IS GRANTED. 
ON THE MERITS, WE CONCLUDE THAT THE PROPERTY INVOLVED IS NOT WITHIN THE
WAIVER PROVISION OF THE FEDERAL ACT. 

THE LANGUAGE OF SEC. 8 OF THE RECONSTRUCTION FINANCE CORPORATION ACT
WAS BORROWED FROM EARLIER FEDERAL LEGISLATION DEALING WITH FEDERAL
FINANCIAL INSTITUTIONS.  (FN6)  THE CONGRESSIONAL POLICY APPEARS TO
HAVE BEEN TO WAIVE TAX EXEMPTION ON REAL PROPERTY OWNED BY GOVERNMENT
CORPORATIONS WHOSE FUNCTIONS WERE PRIMARILY FINANCIAL IN NATURE. 
ORIGINALLY CONCEIVED FOR THE PURPOSE OF MAKING LOANS TO DISTRESSED
BUSINESS CONCERNS, THE RECONSTRUCTION FINANCE CORPORATION WAS IN THIS
CATEGORY.  APPARENTLY CONGRESS WAS CONCERNED THAT PROPERTY OBTAINED BY
THE CORPORATION THROUGH ITS FINANCIAL OPERATIONS IN AID OF ECONOMIC
RECOVERY POLICIES WOULD LOSE ITS TAXABLE STATUS.  THROUGH SEC. 8,
THEREFORE, CONGRESS PRESERVED THE RIGHT OF STATE AND LOCAL GOVERNMENTAL
BODIES TO TAX PROPERTY EVEN THOUGH IT CAME INTO THE HANDS OF THE
CORPORATION.  SUCCESS CROWNED THE ECONOMIC EFFORTS OF THE CORPORATION,
AND, AS THE COUNTRY APPROACHED THE CRITICAL PERIOD IMMEDIATELY
PRECEDING ITS ENTRY INTO WORLD WAR II, CONGRESS IN 1940 EXTENDED THE
CORPORATION'S FUNCTIONS TO INCLUDE THE STOCKPILING OF CRITICAL SUPPLIES
AND THE OPERATION OF PLANTS ENGAGED IN THE MANUFACTURE OF WAR
MATERIAL.  54 STAT. 573.  IT WAS SOON APPARENT THAT LARGE TRACTS OF
LAND WOULD BE NECESSARY IN THIS OPERATION, AND THE WAIVER WAS EXTENDED
TO THE REAL ESTATE HOLDINGS OF THE DEFENSE PLANT CORPORATION, A
SUBSIDIARY OF THE RECONSTRUCTION FINANCE CORPORATION.  55 STAT. 248. 

THE TERMINATION OF THE WAR QUICKLY THREW SUBSTANTIAL PORTIONS OF SUCH
PROPERTY INTO DISUSE, THERE BEING NO FURTHER NEED FOR THE MASS
PRODUCTION OF WAR MATERIAL.  THE PRESIDENT CREATED THE WAR ASSETS
ADMINISTRATION FOR THE PURPOSE OF DISPOSING OF ALL GOVERNMENT SURPLUS
PROPERTY.  (FN7)  AFTER MARCH 25, 1946, GOVERNMENT AGENCIES POSSESSING
PROPERTY SURPLUS TO OFFICIAL NEEDS WERE REQUIRED SO TO DECLARE IT AND
TO TRANSFER IT TO THE ADMINISTRATION FOR DISPOSAL.  (FN8)  BY
DECLARATION OF MAY 29, 1946, THE RECONSTRUCTION FINANCE CORPORATION
DECLARED THE SUBJECT PROPERTY TO BE SURPLUS TO ITS NEEDS AND
RESPONSIBILITIES.  UNDER THE SURPLUS PROPERTY ACT, THIS DECLARATION
TRANSFERRED (FN9) TO THE WAR ASSETS ADMINISTRATION THE FUNCTIONS OF:
CARING FOR AND HANDLING THE PROPERTY PENDING DISPOSAL (SEC. 3(G) AND
SEC. 6); MAKING DISPOSITION OF THE PROPERTY ON SUCH TERMS AS IT SAW FIT
(SEC. 9(B) AND SEC. 15(A)), INCLUDING DONATION UNDER CERTAIN CONDITIONS
(SEC. 13(B)); AND THE POWER OF EXECUTION AND DELIVERY OF ALL NECESSARY
PAPERS INCIDENT TO TRANSFER OF TITLE (SEC. 15(B)).  IT FURTHER PROVIDED
THAT ALL FUNDS DERIVED FROM SUCH DISPOSITION WOULD BE COVERED INTO THE
UNITED STATES TREASURY AS MISCELLANEOUS RECEIPTS (SEC. 30(A)). 
PURSUANT TO THIS DECLARATION BY THE RECONSTRUCTION FINANCE CORPORATION,
THE WAR ASSETS ADMINISTRATION TOOK POSSESSION OF THIS PROPERTY ON MAY
29, 1946, AND ITS SUCCESSOR, THE GENERAL SERVICES ADMINISTRATION,
(FN10) RETAINED POSSESSION UNTIL SEPTEMBER 1, 1949, DURING WHICH PERIOD
THE PROPERTY WAS USED AS A STORAGE DEPOT AND A SALES CENTER FOR SURPLUS
PROPERTY HELD BY THE ADMINISTRATION.  ON THE LATTER DATE, THE PROPERTY
WAS LEASED TO APPELLANT'S PREDECESSOR.  THE LEASE DESCRIBED THE LESSOR
AS THE "RECONSTRUCTION FINANCE CORPORATION  ...  AND THE UNITED STATES
OF AMERICA, BOTH ACTING BY AND THROUGH THE GENERAL SERVICES
ADMINISTRATOR UNDER  ...  THE SURPLUS PROPERTY ACT OF 1944." 

APPELLEES ASSESSED AD VALOREM REAL PROPERTY TAXES ON THE REALTY
AGAINST THE RECONSTRUCTION FINANCE CORPORATION, AS OWNER, FOR THE
FISCAL TAX YEARS 1951 TO 1955, INCLUSIVE.  APPELLANT PAID THE TAXES
(FN11) AND FILED THIS SUIT AFTER CLAIMS FOR REFUND HAD BEEN DENIED. 
THE TRIAL COURT ENTERED JUDGMENT AGAINST APPELLANT.  ON APPEAL, THE
SUPREME COURT OF CALIFORNIA AFFIRMED THE JUDGMENT OF THE TRIAL COURT,
AND DENIED THE CLAIM FOR REFUND.  51 CAL. 2D 759, 336 P.2D 521. 

THERE WOULD BE NO QUESTION AS TO THE EXEMPTION OF THE REAL PROPERTY
INVOLVED HAD THE RECORD TITLE BEEN IN THE NAME OF THE UNITED STATES. 
SINCE MARCH 17, 1955, IN FACT, IT HAS BEEN SO RECORDED; ON THAT DATE
THE RECONSTRUCTION FINANCE CORPORATION EXECUTED AND RECORDED A
QUITCLAIM DEED TO THE UNITED STATES. 

THE SUPREME COURT OF CALIFORNIA CORRECTLY POSED AS THE UNDERLYING
QUESTION, "WHETHER THE LAND CEASED TO BE 'REAL PROPERTY OF THE'
RECONSTRUCTION FINANCE CORPORATION" AFTER IT WAS DECLARED SURPLUS AND
BECAME SUBJECT TO THE PROVISIONS OF THE SURPLUS PROPERTY ACT OF 1944. 
THAT COURT FOUND THAT, SINCE NO DEED WAS EXECUTED TRANSFERRING TITLE
OUT OF THE RECONSTRUCTION FINANCE CORPORATION UNTIL 1955, IT REMAINED
"PROPERTY OF THE CORPORATION" AND HENCE SUBJECT TO TAXATION UNTIL THAT
TIME.   WE BELIEVE THE COURT PLACED TOO MUCH RELIANCE ON THE FACT THAT
THE BARE RECORD TITLE TO THE PROPERTY REMAINED IN THE NAME OF THE
CORPORATION. 

IT APPEARS TO US THAT THE PURPOSE OF THE WAIVER PROVISION WAS TO
PERMIT TAXATION OF REAL PROPERTY BEING USED BY THE RECONSTRUCTION
FINANCE CORPORATION IN THE PERFORMANCE OF ITS FUNCTIONS.  SUCH USE WAS
TERMINATED WHEN THE PROPERTY WAS DECLARED SURPLUS IN 1946.  AT THAT
TIME ANOTHER AGENCY OF THE GOVERNMENT TOOK BOTH THE OCCUPANCY AND
COMPLETE CONTROL OF THE PROPERTY FOR THE PURPOSE OF MANAGEMENT AND
DISPOSITION.  THE RECONSTRUCTION FINANCE CORPORATION, UNDER THE
SPECIFIC PROVISIONS OF THE SURPLUS PROPERTY ACT, THEREBY LOST ALL POWER
AND CONTROL OVER THE PROPERTY, WHICH CAME INTO THE HANDS OF THE
ADMINISTRATOR FOR THE ACCOUNT OF THE UNITED STATES, ANY PROCEEDS
THEREFROM BEING ORDERED PAID INTO THE UNITED STATES TREASURY. 
THEREAFTER, THE ADMINISTRATOR ELECTED, AS HE HAD THE STATUTORY POWER TO
DO, TO LEASE THE PROPERTY TO APPELLANT'S PREDECESSOR.  THE REAL
PROPERTY, HOWEVER, REMAINED IN THE ACCOUNT OF THE UNITED STATES, NOT
THE RECONSTRUCTION FINANCE CORPORATION.  AS THE SUPREME COURT OF
CALIFORNIA RECOGNIZED, THE GENERAL RULE IS "THAT LANDS OWNED BY THE
UNITED STATES OF AMERICA OR ITS INSTRUMENTALITIES ARE IMMUNE FROM STATE
AND LOCAL TAXATION."  WE THINK THAT THE LAND HERE WAS "OWNED" BY THE
UNITED STATES. 

WE BELIEVE THAT CALIFORNIA OVERLOOKS THE FACT THAT, WHILE THE 1949
LEASE WAS FORMALLY MADE IN THE NAME OF BOTH THE UNITED STATES AND THE
RECONSTRUCTION FINANCE CORPORATION, AS LESSORS, IT RECITED ON ITS FACE
THAT THE PROPERTY WAS "SURPLUS PROPERTY OF THE GOVERNMENT OF THE UNITED
STATES" AND SUBJECT TO THE SURPLUS PROPERTY ACT OF 1944.  FURTHERMORE,
THIS LEASE NOTED THAT THE PROPERTY HAD "BEEN ASSIGNED TO WAR ASSETS
ADMINISTRATION FOR DISPOSAL," AND THAT "THE DEPARTMENT OF AIR FORCE HAS
DETERMINED THAT THE USE OF THE LEASED PREMISES BY THE LESSEE HEREIN IS
NECESSARY FOR THE PRODUCTION OF MILITARY EQUIPMENT FOR THE NATIONAL
DEFENSE."  MOREOVER, THE PROPERTY HAD BEEN OCCUPIED BY THE WAR ASSETS
ADMINISTRATION DURING THE TWO YEARS IMMEDIATELY PRECEDING ITS LEASE. 
THE APPELLEES' CONTENTION SEEMS TO BE THAT, SINCE THE LEASE WAS IN THE
NAME OF THE RECONSTRUCTION FINANCE CORPORATION AS WELL AS THE UNITED
STATES, THE LAND WAS "PROPERTY OF THE CORPORATION."  WE HARDLY THINK
SUCH A CONCLUSION INEVITABLE.  WE BELIEVE THAT THE APPROPRIATE TEST
WOULD TURN ON PRACTICAL OWNERSHIP OF THE PROPERTY RATHER THAN THE NAKED
LEGAL TITLE.  THIS IS THE MORE NECESSARY WITH RESPECT TO PUBLIC
PROPERTY WHERE THE RECORD TITLE MAY OFTEN BE IN A GOVERNMENT AGENCY OR
DEPARTMENT - OR, FOR THAT MATTER, IN AN OFFICIAL OF THE GOVERNMENT -
RATHER THAN IN THE NAME OF THE UNITED STATES.  HERE THE RECONSTRUCTION
FINANCE CORPORATION HAD NO PROPRIETARY INTEREST IN THE PROPERTY, NO
POSSESSION OR CONTROL THEREOF, WAS PERFORMING NONE OF ITS FUNCTIONS
WITH REGARD THERETO, AND COULD RECEIVE NONE OF THE INCOME OR FUTURE
BENEFITS THEREFROM.  EVEN THOUGH IT HELD THE RECORD TITLE, SUCH
HOLDING, UNDER THE CIRCUMSTANCES HERE, COULD BE ONLY FOR THE BENEFIT OF
THE UNITED STATES.  ALL OF THE INCIDENTS OF BENEFICIAL OWNERSHIP ENDED
BY THE EXPRESS MANDATE OF THE STATUTE WHEN THE PROPERTY WAS DECLARED
SURPLUS AND TRANSFERRED TO ANOTHER AGENCY FOR DISPOSITION. 

WHEN CONFRONTED WITH THE SAME ISSUE AS PRESENTED BY THE INSTANT CASE,
THE COURT OF CLAIMS REACHED A CONCLUSION DIRECTLY CONTRARY TO THAT OF
THE SUPREME COURT OF CALIFORNIA.  BOARD OF COUNTY COMM'RS OF SEDGWICK
COUNTY V. UNITED STATES, 123 CT. CL. 304, 105 F. SUPP. 995.  THE COURT
OF CLAIMS THERE NOTED THAT, AFTER THE DECLARATION OF SURPLUS, THE
RECONSTRUCTION FINANCE CORPORATION HAD NO "PHYSICAL POSSESSION,
CONTROL, OR CUSTODY OF THE PROPERTY.  IT HAD NEITHER THE USE NOR THE
RIGHT TO USE THE PROPERTY."  THE COURT WENT ON TO CONCLUDE THAT "THERE
IS NO INDICATION THAT CONGRESS INTENDED TO WAIVE IMMUNITY FROM TAXATION
UNDER THESE CIRCUMSTANCES."  123 CT. CL., AT 324, 105 F. SUPP., AT
1001.  WE AGREE WITH THE COURT OF CLAIMS "THAT THE CLOAK OF IMMUNITY
DESCENDED UPON THE PROPERTY WHEN IT WAS DECLARED SURPLUS AND NO TAX
LIABILITY FOR THE PROPERTY COULD ARISE THEREAFTER."   123 CT. CL., AT
324.  105 F. SUPP., AT 1002. 

SINCE THE CRUCIAL ELEMENT IS THE INTENT OF CONGRESS, IT IS IMPORTANT
TO NOTE THE ENACTMENT OF A 1955 STATUTE PROVIDING THE STATES RELIEF
FROM THE EFFECTS OF FEDERAL IMMUNITY.  40 U.S.C. SECS. 521-524.  THE
CONGRESSIONAL DECLARATION OF PURPOSE IN THAT STATUTE "RECOGNIZES THAT
THE TRANSFER OF REAL PROPERTY HAVING A TAXABLE STATUS FROM THE
RECONSTRUCTION FINANCE CORPORATION  ...  TO ANOTHER GOVERNMENT
DEPARTMENT HAS OFTEN OPERATED TO REMOVE SUCH PROPERTY FROM THE TAX
ROLLS  ...  ."  "TRANSFER" WAS DEFINED TO INCLUDE "A TRANSFER OF
CUSTODY AND CONTROL OF, OR ACCOUNTABILITY FOR THE CARE AND HANDLING
OF," THE PROPERTY, AS WELL AS "TRANSFER OF LEGAL TITLE."  THE STATUTE
GOES ON TO PROVIDE FOR CERTAIN PAYMENTS IN LIEU OF TAXES WHERE SUCH A
TRANSFER OCCURS.  THE RELEVANCE OF THIS STATUTE LIES IN A CONGRESSIONAL
SANCTION OF THE RULE OF THE SEDGWICK COUNTY CASE, CONSTRUING THE WAIVER
PROVISION. 

WE CANNOT SAY THAT CONGRESS IN 1932 INTENDED TO WAIVE THE TAX
EXEMPTION ON "REAL PROPERTY OF THE CORPORATION" AFTER THE CORPORATION
FOUND THE PROPERTY SURPLUS TO ITS NEEDS AND RESPONSIBILITIES AND
TRANSFERRED IT TO ANOTHER AGENCY, FOR MANAGEMENT AND DISPOSITION AS
UNITED STATES PROPERTY.  TO SAY THAT THE GOVERNMENT'S LAND REMAINED
TAXABLE MERELY BECAUSE NO FORMAL DEED WAS EXECUTED TRANSFERRING TITLE,
EITHER TO ITSELF OR ANY OF ITS DESIGNATED AGENCIES, WOULD BUT MAKE A
LOCAL TOLLGATE OF A TECHNICALITY. 

NOR CAN WE AGREE THAT THE SHORT ADMINISTRATIVE PRACTICE CLAIMED HERE
CONTINUED THE WAIVER IN EFFECT.  EVEN IF THE RESPONSIBLE AGENCY HAD
PERMITTED THE PAPER TITLE TO THE GOVERNMENT'S PROPERTY TO REMAIN IN THE
RECONSTRUCTION FINANCE CORPORATION FOR THE SOLE PURPOSE OF ALLOWING IT
TO BE TAXED, THE CONGRESSIONAL MANDATE IN THE SURPLUS PROPERTY ACT OF
1944 COULD NOT BE OVERRIDDEN.  AS TO SUCH MATTERS, ANY ADJUSTMENTS
BETWEEN THE FEDERAL AND THE LOCAL GOVERNMENTS ARE STRICTLY LEGISLATIVE
ONES FOR THE CONGRESS, UNITED STATES V. CITY OF DETROIT, 355 U.S. 466,
474 (1958), AND NOT WITHIN THE DISCRETION OF THE EXECUTIVE AGENCIES. 

THE JUDGMENT IS THEREFORE REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  SECTION 8 (AS AMENDED): 

"  ...  ANY REAL PROPERTY OF THE CORPORATION SHALL BE SUBJECT TO  ...
STATE, TERRITORIAL, COUNTY, MUNICIPAL, OR LOCAL TAXATION TO THE SAME
EXTENT ACCORDING TO ITS VALUE AS OTHER REAL PROPERTY IS TAXED."  61
STAT. 205; 15 U.S.C. SEC. 607. 

FN2  CONTINENTAL MOTORS CORP. V. TOWNSHIP OF MUSKEGON, 346 MICH. 141,
77 N.W.2D 370.    FN3  BOARD OF COUNTY COMM'RS OF SEDGWICK COUNTY V.
UNITED STATES, 123 CT. CL. 304, 105 F. SUPP. 995.  IN A CASE INVOLVING
PROPERTY IN A SIMILAR POSTURE, THE NINTH CIRCUIT REACHED A RESULT IN
ACCORD WITH SEDGWICK COUNTY, AND CONTRARY TO THE CALIFORNIA AND
MICHIGAN COURTS.  UNITED STATES V. SHOFNER IRON & STEEL WORKS, 168 F.2D
286.  IN SHOFNER, THE ULTIMATE ISSUE WAS NOT TAX IMMUNITY, BUT
EJECTMENT OF A DEFENDANT FROM GOVERNMENT PROPERTY. 

FN4  28 U.S.C. SEC. 1257 PROVIDES: 

"FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT OF A STATE
IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE SUPREME COURT
AS FOLLOWS:           *         *         *         *         * 

"(2)  BY APPEAL, WHERE IS DRAWN IN QUESTION THE VALIDITY OF A STATUTE
OF ANY STATE ON THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION,
TREATIES OR LAWS OF THE UNITED STATES, AND THE DECISION IS IN FAVOR OF
ITS VALIDITY. 

"(3)  BY WRIT OF CERTIORARI,  ...  WHERE ANY TITLE, RIGHT, PRIVILEGE
OR IMMUNITY IS SPECIALLY SET UP OR CLAIMED UNDER THE CONSTITUTION,
TREATIES OR STATUTES OF  ...  THE UNITED STATES." 

FN5  28 U.S.C. SEC. 2103: 

"IF AN APPEAL TO THE SUPREME COURT IS IMPROVIDENTLY TAKEN FROM THE
DECISION OF THE HIGHEST COURT OF A STATE IN A CASE WHERE THE PROPER
MODE OF A REVIEW IS BY PETITION FOR CERTIORARI, THIS ALONE SHALL NOT BE
GROUND FOR DISMISSAL; BUT THE PAPERS WHEREON THE APPEAL WAS TAKEN SHALL
BE REGARDED AND ACTED ON AS A PETITION FOR WRIT OF CERTIORARI AND AS IF
DULY PRESENTED TO THE SUPREME COURT AT THE TIME THE APPEAL WAS TAKEN
...  ." 

FN6  SEE 13 STAT. 99, 111, 12 U.S.C. SEC. 548 (NATIONAL BANKING
ASSOCIATIONS); 38 STAT. 251, 258, 12 U.S.C. SEC. 531 (FEDERAL RESERVE
BANKS); 39 STAT. 380, 12 U.S.C. SECS. 931, 933 (FEDERAL LAND BANKS); 42
STAT. 1469, 12 U.S.C. SEC. 1261 (NATIONAL AGRICULTURAL CREDIT
CORPORATION). 

FN7  SEE EXEC. ORDER NO. 9689, DATED JAN. 31, 1946, 11 FED. REG.
1265. 

FN8   SEE SURPLUS PROPERTY ACT OF 1944, 58 STAT. 765. 

FN9  THE ACT DID NOT REQUIRE THE EXECUTION OF A DEED TO THE
ADMINISTRATION. 

FN10  AS OF JULY 1, 1949, CONGRESS TRANSFERRED ALL OF THE FUNCTIONS
OF THE WAR ASSETS ADMINISTRATION TO THE GENERAL SERVICES
ADMINISTRATION.  SEE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT
OF 1949, C. 288, 63 STAT. 377. 

FN11  BY THE TERMS OF THE LEASE, THE LESSEE UNDERTOOK TO PAY ALL
TAXES LEGALLY ASSESSED AGAINST THE PROPERTY. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :











WILLIAMS V. LAVALLEE 362 U.S. 637 


NO. 833, MISC.  DECIDED MAY 23, 1960 - APPEAL DISMISSED FOR WANT OF
JURISDICTION - REPORTED BELOW: - F.2D. 


WILLIAMS V. LAVALLEE, WARDEN. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF JURISDICTION. 
..END :

















SIMS MOTOR TRANSPORT LINES V. UNITED STATES 362 U.S. 637 


NO. 823.  DECIDED MAY 23, 1960 - 183 F. SUPP. 113, AFFIRMED. 


SIMS MOTOR TRANSPORT LINES, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS OF HOLLAND MOTOR EXPRESS, INC., ET AL., FOR LEAVE TO BE
NAMED PARTIES APPELLEE AND FOR LEAVE TO FILE A MOTION TO AFFIRM ARE
GRANTED.  THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS
AFFIRMED. 
..END :















UNITED STATES V. REPUBLIC STEEL CORP. 362 U.S. 482 


NO. 56.  ARGUED JANUARY 12-13, 1960 - DECIDED MAY 16, 1960 - 264 F.2D
289, REVERSED. 


IN A SUIT BY THE UNITED STATES, THE DISTRICT COURT FOUND THAT
RESPONDENTS, WHO OPERATE MILLS FOR THE PRODUCTION OF IRON AND RELATED
PRODUCTS, HAD, WITHOUT FIRST OBTAINING PERMITS FROM THE CHIEF OF
ENGINEERS OF THE ARMY PROVIDING CONDITIONS FOR THEIR REMOVAL,
DISCHARGED THROUGH SEWERS INTO A NAVIGABLE RIVER OF THE UNITED STATES
INDUSTRIAL WASTE SOLIDS WHICH, ON SETTLING OUT, HAD SUBSTANTIALLY
REDUCED THE DEPTH OF THE CHANNEL; AND IT ENJOINED THEM FROM CONTINUING
TO DO SO AND ORDERED THEM TO RESTORE THE DEPTH OF THE CHANNEL BY
REMOVING THE DEPOSITS.  HELD:  ON THE FINDINGS OF THE DISTRICT COURT,
THE DEPOSIT OF INDUSTRIAL SOLIDS IN THE RIVER BY RESPONDENTS CREATED AN
"OBSTRUCTION" TO THE "NAVIGABLE CAPACITY" OF THE RIVER FORBIDDEN BY
SEC. 10 OF THE RIVERS AND HARBORS ACT OF 1899; THEY WERE DISCHARGES
FORBIDDEN BY, AND NOT EXEMPT UNDER, SEC. 13; AND THE DISTRICT COURT WAS
AUTHORIZED TO GRANT INJUNCTIVE RELIEF.  PP. 483-493. 

(A) THE DISCHARGE INTO A NAVIGABLE RIVER OF INDUSTRIAL SOLIDS WHICH
REDUCE THE DEPTH OF THE CHANNEL CREATES AN "OBSTRUCTION" TO THE
"NAVIGABLE CAPACITY" OF THE RIVER WITHIN THE MEANING OF SEC. 10 OF THE
ACT.  PP. 486-489. 

(B)  THE DISCHARGE OF SUCH INDUSTRIAL SOLIDS SUSPENDED IN WATER
FLOWING INTO A RIVER THROUGH SEWERS IS A DISCHARGE FORBIDDEN BY SEC. 13
AND IS NOT EXEMPTED AS "REFUSE MATTER  ...  FLOWING FROM ...  SEWERS
AND PASSING THEREFROM IN A LIQUID STATE."  PP. 489-491. 

(C)  THE DISTRICT COURT WAS AUTHORIZED TO GRANT INJUNCTIVE RELIEF IN
A SUIT BY THE UNITED STATES.  PP. 491-492. 

UNITED STATES V. REPUBLIC STEEL CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BY THE UNITED STATES TO ENJOIN RESPONDENT COMPANIES
FROM DEPOSITING INDUSTRIAL SOLIDS IN THE CALUMET RIVER (WHICH FLOWS OUT
OF LAKE MICHIGAN AND CONNECTS EVENTUALLY WITH THE MISSISSIPPI) WITHOUT
FIRST OBTAINING A PERMIT FROM THE CHIEF OF ENGINEERS OF THE ARMY
PROVIDING CONDITIONS FOR THE REMOVAL OF THE DEPOSITS AND TO ORDER AND
DIRECT THEM TO RESTORE THE DEPTH OF THE CHANNEL TO 21 FEET BY REMOVING
PORTIONS OF EXISTING DEPOSITS. 

THE DISTRICT COURT FOUND THAT THE CALUMET WAS USED BY VESSELS
REQUIRING A 21-FOOT DRAFT, AND THAT THAT DEPTH HAS BEEN MAINTAINED BY
THE CORPS OF ENGINEERS.  RESPONDENTS, WHO OPERATE MILLS ON THE BANKS OF
THE RIVER FOR THE PRODUCTION OF IRON AND RELATED PRODUCTS, USE LARGE
QUANTITIES OF THE WATER FROM THE RIVER, RETURNING IT THROUGH NUMEROUS
SEWERS.  THE PROCESSES THEY USE CREATE INDUSTRIAL WASTE CONTAINING
VARIOUS SOLIDS.  A SUBSTANTIAL QUANTITY OF THESE SOLIDS IS RECOVERED IN
SETTLING BASINS BUT, ACCORDING TO THE FINDINGS, MANY FINE PARTICLES ARE
DISCHARGED INTO THE RIVER AND THEY FLOCCULATE INTO LARGER UNITS AND ARE
DEPOSITED IN THE RIVER BOTTOM.  SOUNDINGS SHOW A PROGRESSIVE DECREASE
IN THE DEPTH OF THE RIVER IN THE VICINITY OF RESPONDENTS' MILLS.  BUT
RESPONDENTS HAVE REFUSED, SINCE 1951, THE DEMAND OF THE CORPS OF
ENGINEERS THAT THEY DREDGE THAT PORTION OF THE RIVER.  THE SHOALING
CONDITIONS BEING CREATED IN THE VICINITY OF THESE PLANTS WERE FOUND BY
THE DISTRICT COURT TO BE CREATED BY THE WASTE DISCHARGED FROM THE MILLS
OF RESPONDENTS.  (FN1)  THIS SHOALING WAS FOUND TO HAVE REDUCED THE
DEPTH OF THE CHANNEL TO 17 FEET IN SOME PLACES AND TO 12 FEET IN
OTHERS.  THE DISTRICT COURT MADE FINDINGS WHICH CREDITED RESPONDENTS
WITH 81.5% OF THE WASTE DEPOSITED IN THE CHANNEL, AND IT ALLOCATED THAT
IN VARIOUS PROPORTIONS AMONG THE THREE RESPONDENTS.  SEE 155 F. SUPP.
442. 

THE COURT OF APPEALS DID NOT REVIEW THE SUFFICIENCY OF EVIDENCE.  IT
DEALT ONLY WITH QUESTIONS OF LAW AND DIRECTED THAT THE COMPLAINT BE
DISMISSED.  264 F.2D 289.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI WHICH WE GRANTED BECAUSE OF THE PUBLIC IMPORTANCE OF THE
QUESTIONS TENDERED.  359 U.S. 1010. 

1151, AS AMENDED, 33 U.S.C. SEC. 403, PROVIDES IN PART:  (FN2) 

"THAT THE CREATION OF ANY OBSTRUCTION NOT AFFIRMATIVELY AUTHORIZED BY
CONGRESS, TO THE NAVIGABLE CAPACITY OF ANY OF THE WATERS OF THE UNITED
STATES IS HEREBY PROHIBITED; ...  ." 

THE SECTION GOES ON TO OUTLAW VARIOUS STRUCTURES "IN" ANY NAVIGABLE
WATERS EXCEPT THOSE INITIATED BY PLANS RECOMMENDED BY THE CHIEF OF
ENGINEERS AND AUTHORIZED BY THE SECRETARY OF THE ARMY.  SECTION 10 THEN
STATES THAT "IT SHALL NOT BE LAWFUL TO EXCAVATE OR FILL, OR IN ANY
MANNER TO ALTER OR MODIFY THE  ...  CAPACITY OF  ...  THE CHANNEL OF
ANY NAVIGABLE WATER OF THE UNITED STATES, UNLESS THE WORK HAS BEEN
RECOMMENDED BY THE CHIEF OF ENGINEERS AND AUTHORIZED BY THE SECRETARY
OF THE ARMY PRIOR TO BEGINNING THE SAME." 

A CRIMINAL PENALTY IS ADDED BY SEC. 12; AND SEC. 12 FURTHER PROVIDES
THAT THE UNITED STATES MAY SUE TO HAVE "ANY STRUCTURES OR PARTS OF
STRUCTURES ERECTED" IN VIOLATION OF THE ACT REMOVED.  SECTION 17
DIRECTS THE DEPARTMENT OF JUSTICE TO "CONDUCT THE LEGAL PROCEEDINGS
NECESSARY TO ENFORCE" THE PROVISIONS OF THE ACT, INCLUDING SEC. 10. 

DESCRIPTION WHATEVER OTHER THAN THAT FLOWING FROM STREETS AND SEWERS
AND PASSING THEREFROM IN A LIQUID STATE, INTO ANY NAVIGABLE WATER OF
THE UNITED STATES"; BUT SEC. 13 GRANTS AUTHORITY TO THE SECRETARY OF
THE ARMY TO PERMIT SUCH DEPOSITS UNDER CONDITIONS PRESCRIBED BY HIM. 

OUR CONCLUSIONS ARE THAT THE INDUSTRIAL DEPOSITS PLACED BY
RESPONDENTS IN THE CALUMET HAVE, ON THE FINDINGS OF THE DISTRICT COURT,
CREATED AN "OBSTRUCTION" WITHIN THE MEANING OF SEC. 10 OF THE ACT AND
ARE DISCHARGES NOT EXEMPT UNDER SEC. 13.  WE ALSO CONCLUDE THAT THE
DISTRICT COURT WAS AUTHORIZED TO GRANT THE RELIEF. 

THE HISTORY OF FEDERAL CONTROL OVER OBSTRUCTIONS TO THE NAVIGABLE
CAPACITY OF OUR RIVERS AND HARBORS GOES BACK TO WILLIAMETTE IRON BRIDGE
CO. V. HATCH, 125 U.S. 1, 8, WHERE THE COURT HELD "THERE IS NO COMMON
LAW OF THE UNITED STATES" WHICH PROHIBITS "OBSTRUCTIONS" IN OUR
NAVIGABLE RIVERS.  CONGRESS ACTED PROMPTLY, FORBIDDING BY SEC. 10 OF
THE RIVERS AND HARBORS ACT OF 1890, 26 STAT. 426, 454, "THE CREATION OF
ANY OBSTRUCTION, NOT AFFIRMATIVELY AUTHORIZED BY LAW, TO THE NAVIGABLE
CAPACITY" OF ANY WATERS OF THE UNITED STATES.  THE 1899 ACT FOLLOWED A
REPORT (FN3) TO CONGRESS BY THE SECRETARY OF WAR, WHICH AT THE
DIRECTION OF CONGRESS, 29 STAT. 234, CONTAINED A COMPILATION AND
REVISION OF EXISTING LAWS RELATING TO NAVIGABLE WATERS.  THE 1899 ACT
WAS SAID TO CONTAIN "NO ESSENTIAL CHANGES IN THE EXISTING LAW."  (FN4)
CERTAINLY SO FAR AS OUTLAWRY OF ANY "OBSTRUCTIONS" IN NAVIGABLE RIVERS
IS CONCERNED THERE WAS NO CHANGE RELEVANT TO OUR PRESENT PROBLEM. 

IT IS ARGUED THAT "OBSTRUCTION" MEANS SOME KIND OF STRUCTURE.  THE
DESIGN OF SEC. 10 SHOULD BE ENOUGH TO REFUTE THAT ARGUMENT, SINCE THE
BAN OF "ANY OBSTRUCTION," UNLESS APPROVED BY CONGRESS, APPEARS IN THE
FIRST PART OF SEC. 10, FOLLOWED BY A SEMICOLON AND ANOTHER PROVISION
WHICH BANS VARIOUS KINDS OF STRUCTURES UNLESS AUTHORIZED BY THE
SECRETARY OF THE ARMY. 

THE REACH OF SEC. 10 SEEMS PLAIN.  CERTAIN TYPES OF STRUCTURES,
ENUMERATED IN THE SECOND CLAUSE, MAY NOT BE ERECTED "IN" ANY NAVIGABLE
RIVER WITHOUT APPROVAL BY THE SECRETARY OF THE ARMY.  NOR MAY
EXCAVATIONS OR FILLS, DESCRIBED IN THE THIRD CLAUSE, THAT ALTER OR
MODIFY "THE COURSE, LOCATION, CONDITION, OR CAPACITY OF" A NAVIGABLE
RIVER BE MADE UNLESS "THE WORK" HAS BEEN APPROVED BY THE SECRETARY OF
THE ARMY.  THERE IS, APART FROM THESE PARTICULARIZED INVASIONS OF
NAVIGABLE RIVERS, WHICH THE SECRETARY OF THE ARMY MAY APPROVE, THE
GENERALIZED FIRST CLAUSE WHICH PROHIBITS "THE CREATION OF ANY
OBSTRUCTION NOT AFFIRMATIVELY AUTHORIZED BY CONGRESS, TO THE NAVIGABLE
CAPACITY" OF SUCH RIVERS.  WE CAN ONLY CONCLUDE THAT CONGRESS PLANNED
TO BAN ANY TYPE OF "OBSTRUCTION," NOT MERELY THOSE SPECIFICALLY MADE
SUBJECT TO APPROVAL BY THE SECRETARY OF THE ARMY.  IT SEEMS, MOREOVER,
THAT THE FIRST CLAUSE BEING SPECIFICALLY AIMED AT "NAVIGABLE CAPACITY"
SERVES AN END THAT MAY AT TIMES BE BROADER THAN THOSE SERVED BY THE
OTHER CLAUSES.  SOME STRUCTURES MENTIONED IN THE SECOND CLAUSE MAY ONLY
DETER MOVEMENTS IN COMMERCE, FALLING SHORT OF ADVERSELY AFFECTING
NAVIGABLE CAPACITY.  AND NAVIGABLE CAPACITY OF A WATERWAY MAY
CONCEIVABLY BE AFFECTED BY MEANS OTHER THAN THE EXCAVATIONS AND FILLS
MENTIONED IN THE THIRD CLAUSE.  WE WOULD NEED TO STRAIN HARD TO
CONCLUDE THAT THE ONLY OBSTRUCTIONS BANNED BY SEC. 10 ARE THOSE
ENUMERATED IN THE SECOND AND THIRD CLAUSES.  IN SHORT, THE FIRST CLAUSE
IS AIMED AT PROTECTING "NAVIGABLE CAPACITY," THOUGH IT IS ADVERSELY
AFFECTED IN WAYS OTHER THAN THOSE SPECIFIED IN THE OTHER CLAUSES. 

THERE IS AN ARGUMENT THAT SEC. 10 OF THE 1890 ACT, 26 STAT. 454,
WHICH WAS THE PREDECESSOR OF THE SECTION WITH WHICH WE ARE NOW
CONCERNED, USED THE WORDS "ANY OBSTRUCTION" IN THE NARROW SENSE,
EMBRACING ONLY THE PRIOR ENUMERATION OF OBSTRUCTIONS IN THE PRECEDING
STOP TO REFUTE STEP BY STEP.  IT IS UNNECESSARY TO DO SO, FOR THE COURT
IN UNITED STATES V. RIO GRANDE IRRIGATION CO., 174 U.S. 690, 708,
DECIDED NOT LONG AFTER THE 1890 ACT BECAME EFFECTIVE, GAVE THE CONCEPT
OF "OBSTRUCTION," AS USED IN SEC. 10, A BROAD SWEEP:  "IT IS NOT A
PROHIBITION OF ANY OBSTRUCTION TO THE NAVIGATION, BUT ANY OBSTRUCTION
TO THE NAVIGABLE CAPACITY, AND ANYTHING, WHEREVER DONE OR HOWEVER DONE,
WITHIN THE LIMITS OF THE JURISDICTION OF THE UNITED STATES WHICH TENDS
TO DESTROY THE NAVIGABLE CAPACITY OF ONE OF THE NAVIGABLE WATERS OF THE
UNITED STATES, IS WITHIN THE TERMS OF THE PROHIBITION."  THIS BROAD
CONSTRUCTION GIVEN SEC. 10 OF THE 1890 ACT WAS CARRIED OVER TO SEC. 10
OF THE 1899 ACT IN SANITARY DISTRICT V. UNITED STATES, 266 U.S. 405,
429, THE COURT CITING UNITED STATES V. RIO GRANDE IRRIGATION CO.,
SUPRA, WITH APPROVAL AND SAYING THAT SEC. 10 OF THE 1899 ACT WAS "A
BROAD EXPRESSION OF POLICY IN UNMISTAKABLE TERMS, ADVANCING UPON" SEC.
10 OF THE 1890 ACT. 

THE DECISION IN SANITARY DISTRICT V. UNITED STATES, SUPRA, SEEMS TO
US TO BE DECISIVE.  THERE THE COURT AFFIRMED A DECREE ENJOINING THE
DIVERSION OF WATER FROM LAKE MICHIGAN THROUGH THIS SAME RIVER.  MR.
JUSTICE HOLMES, WRITING FOR THE COURT, DID NOT READ SEC. 10 NARROWLY
BUT IN THE SPIRIT IN WHICH CONGRESS MOVED TO FILL THE GAP CREATED BY
WILLAMETTE IRON BRIDGE CO. V. HATCH, SUPRA.  THAT WHICH AFFECTS THE
WATER LEVEL MAY, HE SAID, AMOUNT TO AN "OBSTRUCTION" WITHIN THE MEANING
OF SEC. 10: 

"EVIDENCE IS SUFFICIENT, IF EVIDENCE IS NECESSARY, TO SHOW THAT A
WITHDRAWAL OF WATER ON THE SCALE DIRECTED BY THE STATUTE OF ILLINOIS
THREATENS AND WILL AFFECT THE LEVEL OF THE LAKES, AND THAT IS A MATTER
WHICH CANNOT BE DONE WITHOUT THE CONSENT OF THE UNITED STATES, EVEN
WERE THERE NO INTERNATIONAL COVENANT IN THE CASE."  SANITARY DISTRICT
V. UNITED STATES, SUPRA, 426. 

     * *         *         *         * 

"THERE IS NEITHER REASON NOR OPPORTUNITY FOR A CONSTRUCTION THAT
WOULD NOT COVER THE PRESENT CASE.   AS NOW APPLIED IT CONCERNS A CHANGE
IN THE CONDITION OF THE LAKES AND THE CHICAGO RIVER, ADMITTED TO BE
NAVIGABLE, AND, IF THAT BE NECESSARY, AN OBSTRUCTION TO THEIR NAVIGABLE
CAPACITY  ...  ."  ID., AT 429. 

IT IS SAID THAT THAT CASE IS DISTINGUISHABLE BECAUSE IT INVOLVED THE
ERECTIONS OF "STRUCTURES," PROHIBITED BY THE SECOND CLAUSE OF SEC. 10. 
THE "STRUCTURES" ERECTED, HOWEVER, WERE NOT "IN" NAVIGABLE WATERS.  THE
SANITARY DISTRICT HAD REVERSED THE FLOW OF THE CHICAGO RIVER, "FORMERLY
A LITTLE STREAM FLOWING INTO LAKE MICHIGAN," 266 U.S., AT 424, AND USED
IT AS A SLUICEWAY TO DRAW DOWN THE WATERS OF THE GREAT LAKES TO A
DANGEROUS DEGREE.  MOREOVER, THE COURT DID NOT RELY ON THE SECOND
CLAUSE OF SEC. 10 BUT ON THE FIRST AND THE THIRD.  ID., AT 428.  THE
DECREE IN THAT CASE DID NOT RUN AGAINST ANY "STRUCTURE"; IT MERELY
ENJOINED THE DIVERSION OF WATER FROM LAKE MICHIGAN IN EXCESS OF 250,000
CUBIC FEET PER MINUTE. 

THAT BROAD CONSTRUCTION OF SEC. 10 WAS REAFFIRMED IN WISCONSIN V.
ILLINOIS, 278 U.S. 367, 414, ANOTHER CASE INVOLVING THE REDUCTION OF
THE WATER LEVEL OF THE GREAT LAKES BY MEANS OF WITHDRAWALS THROUGH THE
CHICAGO RIVER.  AND THE COURT, SPEAKING THROUGH CHIEF JUSTICE TAFT
(ID., AT 406, 414, 417), MADE CLEAR THAT IT ADHERED TO WHAT MR. JUSTICE
HOLMES HAD EARLIER SAID, "THIS WITHDRAWAL IS PROHIBITED BY CONGRESS,
EXCEPT SO FAR AS IT MAY BE AUTHORIZED BY THE SECRETARY OF WAR." 
SANITARY DISTRICT V. UNITED STATES, SUPRA, AT 429. 

THE TEACHING OF THOSE CASES IS THAT THE TERM "OBSTRUCTION" AS USED IN
SEC. 10 IS BROAD ENOUGH TO INCLUDE DIMINUTION OF THE NAVIGABLE CAPACITY
OF A WATERWAY BY MEANS NOT INCLUDED IN THE SECOND OR THIRD CLAUSES.  IN
THE SANITARY DISTRICT CASE IT WAS CAUSED BY LOWERING THE WATER LEVEL. 
HERE IT IS CAUSED BY CLOGGING THE CHANNEL WITH DEPOSITS OF INORGANIC
SOLIDS.  EACH AFFECTED THE NAVIGABLE "CAPACITY" OF THE RIVER.  THE
CONCEPT OF "OBSTRUCTION" WHICH WAS BROAD ENOUGH TO INCLUDE THE FORMER
SEEMS TO US PLAINLY ADEQUATE TO INCLUDE THE LATTER. 

AS NOTED, SEC. 13 BANS THE DISCHARGE IN ANY NAVIGABLE WATER OF "ANY
REFUSE MATTER OF ANY KIND OR DESCRIPTION WHATEVER OTHER THAN THAT
FLOWING FROM STREETS AND SEWERS AND PASSING THEREFROM IN A LIQUID
STATE."  THE MATERIALS CARRIED HERE ARE "INDUSTRIAL SOLIDS," AS THE
DISTRICT COURT FOUND.  THE PARTICLES CREATING THE PRESENT OBSTRUCTION
WERE IN SUSPENSION, NOT IN SOLUTION.  ARTICLES IN SUSPENSION, SUCH AS
ORGANIC MATTER IN SEWAGE, MAY UNDERGO CHEMICAL CHANGE.  OTHERS SETTLE
OUT.  ALL MATTER IN SUSPENSION IS NOT SAVED BY THE EXCEPTION CLAUSE IN
SEC. 13.  REFUSE FLOWING FROM "SEWERS" IN A "LIQUID STATE" MEANS TO US
"SEWAGE."  ANY DOUBTS ARE RESOLVED BY A CONSISTENT ADMINISTRATIVE
CONSTRUCTION WHICH REFUSED TO GIVE IMMUNITY TO INDUSTRIAL WASTES
RESULTING IN THE DEPOSIT OF SOLIDS IN THE VERY RIVER IN QUESTION. 
(FN5)  THE FACT THAT DISCHARGES FROM STREETS AND SEWERS MAY CONTAIN
SOME ARTICLES IN SUSPENSION THAT SETTLE OUT AND POTENTIALLY IMPAIR
NAVIGABILITY (FN6) IS NO REASON FOR US TO ENLARGE THE GROUP TO INCLUDE
THESE INDUSTRIAL DISCHARGES.  WE FOLLOW THE LINE CONGRESS HAS DRAWN AND
CANNOT ACCEPT THE INVITATION TO BROADEN THE EXCEPTION IN SEC. 13
BECAUSE OTHER MATTERS "IN A LIQUID STATE" MIGHT LOGICALLY HAVE BEEN
TREATED AS FAVORABLY AS SEWAGE IS TREATED.  WE READ THE 1899 ACT
CHARITABLY IN LIGHT OF THE PURPOSE TO BE SERVED.  THE PHILOSOPHY OF THE
STATEMENT OF MR. JUSTICE HOLMES IN NEW JERSEY V. NEW YORK, 283 U.S.
336, 342, THAT "A RIVER IS MORE THAN AN AMENITY, IT IS A TREASURE,"
FORBIDS A NARROW, CRAMPED READING EITHER OF SEC. 13 OR OF SEC. 10. 
THE COURT OF APPEALS CONCLUDED THAT EVEN IF VIOLATIONS WERE SHOWN, NO
RELIEF BY INJUNCTION IS PERMITTED.  YET SEC. 17 PROVIDES, AS WE HAVE
SEEN, THAT "THE DEPARTMENT OF JUSTICE SHALL CONDUCT THE LEGAL
PROCEEDINGS NECESSARY TO ENFORCE" THE PROVISIONS OF THE ACT, INCLUDING
SEC. 10.  IT IS TRUE THAT SEC. 12 IN SPECIFICALLY PROVIDING FOR RELIEF
BY INJUNCTION REFERS ONLY TO THE REMOVAL OF "STRUCTURES" ERECTED IN
VIOLATION OF THE ACT (SEE UNITED STATES V. BIGAN, 274 F.2D 729), WHILE
SEC. 10 OF THE 1890 ACT PROVIDED FOR THE ENJOINING OF ANY
"OBSTRUCTION."  HERE AGAIN SANITARY DISTRICT V. UNITED STATES, SUPRA,
IS ANSWER ENOUGH.  IT WAS ARGUED IN THAT CASE THAT RELIEF BY INJUNCTION
WAS RESTRICTED TO REMOVAL OF "STRUCTURES."  SEE 266 U.S., AT 408.  BUT
THE COURT REPLIED, "THE ATTORNEY GENERAL BY VIRTUE OF HIS OFFICE MAY
BRING THIS PROCEEDING AND NO STATUTE IS NECESSARY TO AUTHORIZE THE
SUIT."  (FN7)  ID., AT 426.  THE AUTHORITY CITED WAS UNITED STATES V.
SAN JACINTO TIN CO., 125 U.S. 273, WHERE A SUIT WAS BROUGHT BY THE
ATTORNEY GENERAL TO SET ASIDE A FRAUDULENT PATENT TO PUBLIC LANDS.  THE
COURT HELD THAT THE ATTORNEY GENERAL COULD BRING SUIT, EVEN THOUGH
CONGRESS HAD NOT GIVEN SPECIFIC AUTHORITY.  THE TEST WAS WHETHER THE
UNITED STATES HAD AN INTEREST TO PROTECT OR DEFEND.  SECTION 10 OF THE
PRESENT ACT DEFINES THE INTEREST OF THE UNITED STATES WHICH THE
INJUNCTION SERVES.  PROTECTION OF THE WATER LEVEL OF THE GREAT LAKES
THROUGH INJUNCTIVE RELIEF, SANITARY DISTRICT V. UNITED STATES, SUPRA,
IS PRECEDENT ENOUGH FOR ORDERING THAT THE NAVIGABLE CAPACITY OF THE
CALUMET RIVER BE RESTORED.  THE VOID WHICH WAS LEFT BY WILLAMETTE IRON
BRIDGE CO. V. HATCH, SUPRA, NEED NOT BE FILLED BY DETAILED CODES WHICH
PROVIDES FOR EVERY CONTINGENCY.  CONGRESS HAS LEGISLATED AND MADE ITS
PURPOSE CLEAR; IT HAS PROVIDED ENOUGH FEDERAL LAW IN SEC. 10 FROM WHICH
APPROPRIATE REMEDIES MAY BE FASHIONED EVEN THOUGH THEY REST ON
INFERENCES.  OTHERWISE WE IMPUTE TO CONGRESS A FUTILITY INCONSISTENT
WITH THE GREAT DESIGN OF THIS LEGISLATION.  THIS IS FOR US THE MEANING
OF SANITARY DISTRICT V. UNITED STATES, SUPRA, ON THIS PROCEDURAL
POINT.  (FN8) 

SINCE THE COURT OF APPEALS DEALT ONLY WITH THESE QUESTIONS OF LAW AND
NOT WITH SUBSIDIARY QUESTIONS RAISED BY THE APPEAL, WE REMAND THE CASE
TO IT FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  A HOUSE REPORT CONTAINS SIMILAR ANIMADVERSIONS.  H.R. REP. NO.
1345, 83D CONG., 2D SESS., P. 10. 

FN2  SECTION 10 PROVIDES IN FULL: 

"THAT THE CREATION OF ANY OBSTRUCTION NOT AFFIRMATIVELY AUTHORIZED BY
CONGRESS, TO THE NAVIGABLE CAPACITY OF ANY OF THE WATERS OF THE UNITED
STATES IS HEREBY PROHIBITED; AND IT SHALL NOT BE LAWFUL TO BUILD OR
COMMENCE THE BUILDING OF ANY WHARF, PIER, DOLPHIN, BOOM, WEIR,
BREAKWATER, BULKHEAD, JETTY, OR OTHER STRUCTURES IN ANY PORT,
ROADSTEAD, HAVEN, HARBOR, CANAL, NAVIGABLE RIVER, OR OTHER WATER OF THE
UNITED STATES, OUTSIDE ESTABLISHED HARBOR LINES, OR WHERE NO HARBOR
LINES HAVE BEEN ESTABLISHED, EXCEPT ON PLANS RECOMMENDED BY THE CHIEF
OF ENGINEERS AND AUTHORIZED BY THE SECRETARY OF THE ARMY; AND IT SHALL
NOT BE LAWFUL TO EXCAVATE OR FILL, OR IN ANY MANNER TO ALTER OR MODIFY
THE COURSE, LOCATION, CONDITION, OR CAPACITY OF, ANY PORT, ROADSTEAD,
HAVEN, HARBOR, CANAL, LAKE, HARBOR OF REFUGE, OR INCLOSURE WITHIN THE
LIMITS OF ANY BREAKWATER, OR OF THE CHANNEL OF ANY NAVIGABLE WATER OF
THE UNITED STATES, UNLESS THE WORK HAS BEEN RECOMMENDED BY THE CHIEF OF
ENGINEERS AND AUTHORIZED BY THE SECRETARY OF THE ARMY PRIOR TO
BEGINNING THE SAME." 

FN3  H.R. DOC. NO. 293, 54TH CONG., 2D SESS. 

FN4  32 CONG. REC., PT. 3, P. 2923, WHICH REPORTS THE STATEMENT BY
THE HOUSE CONFEREES.  FOR THE DISCUSSION IN THE SENATE SEE 32 CONG.
REC. 2296-2298. 

FN5  WE HAVE A RATHER PRECISE HISTORY OF ADMINISTRATIVE CONSTRUCTION
OF THE 1899 ACT AS IT APPLIES TO THE DEPOSIT OF SOLIDS IN THE CALUMET
RIVER BY MILLS LOCATED ON IT.  THE ARMY ENGINEERS, BEGINNING IN 1909,
WARNED A STEEL COMPANY OF THE ACCUMULATION OF SOLIDS FROM INDUSTRIAL
WASTES BEING POURED INTO THE CALUMET.  IN 1918, 1920, 1924, 1927, 1928,
1931, AND 1937 THE DISTRICT ENGINEER REQUIRED THESE DEPOSITS TO BE
REMOVED.  AN IMPROVEMENT IN THE CALUMET WAS AUTHORIZED BY THE ACT OF
AUGUST 30, 1935, 49 STAT. 1028, 1036, ON THE BASIS OF A REPORT FROM THE
ARMY ENGINEERS.  SEE H.R. DOC. NO. 494, 72D CONG., 2D SESS.  THE COSTS
WERE COMPUTED ON THE BASIS THAT SHOALS CREATED BY THE DEPOSIT OF SOLIDS
WOULD BE REMOVED BY THE COMPANY CREATING THEM.  THE REPORT STATES, AT
P. 24, "IT IS ASSUMED, IN THIS ESTIMATE, THAT THE SHOAL ADJACENT TO THE
OUTER BULKHEAD OF THE ILLINOIS STEEL CO. WILL BE REMOVED BY THAT
COMPANY TO THE DEPTH OF 21 FEET ORIGINALLY PROVIDED BY THE UNITED
STATES." 

THIS LONG-STANDING ADMINISTRATIVE CONSTRUCTION, WHILE NOT CONCLUSIVE
OF COURSE, IS ENTITLED TO "GREAT WEIGHT" EVEN THOUGH IT AROSE OUT OF
CASES "SETTLED BY CONSENT RATHER THAN IN LITIGATION."  FEDERAL TRADE
COMM'N V. MANDEL BROTHERS, INC., 359 U.S. 385, 391. 

FOR REFERENCES IN PUBLIC DOCUMENTS TO THIS ADMINISTRATIVE
CONSTRUCTION SEE H.R. DOC.  NO. 237, 63D CONG., 1ST SESS., PP. 77, 160;
S. REP. NO. 66, 68TH CONG., 1ST SESS., P. 2; H.R.  DOC. NO. 494, 72D
CONG., 2D SESS., PP. 24, 34; S. REP. NO. 2225, 74TH CONG., 2D SESS., P.
2; HEARINGS, CIVIL FUNCTIONS, DEPARTMENT OF THE ARMY APPROPRIATIONS FOR
1955, SUBCOMMITTEE OF HOUSE COMMITTEE ON APPROPRIATIONS, 83D CONG., 2D
SESS., PT. 1, PP.  695-696; H.R. REP. NO. 1345, 83D CONG., 2D SESS., P.
10. 

FN6  H.R. DOC. NO. 417, 69TH CONG., 1ST SESS., P. 9, STATES: 

"IN SOME INSTANCES THE ORGANIC SOLID MATTER IN SEWAGE AND WASTES
CAUSES TEMPORARY SHOALING IN THE VICINITY OF THE POINT OF DISCHARGE,
BUT IN MOST CASES OF THIS KIND NATURE EVENTUALLY DECOMPOSES THIS
ORGANIC MATTER AND RECTIFIES THE CONDITION.  IN A FEW INSTANCES, WHERE
LARGE QUANTITIES OF SEWAGE ARE DISCHARGED INTO SLUGGISH AND RESTRICTED
WATERS, OVERPOLLUTION RESULTS AND THE OXYGEN CONTENT REMAINS
INSUFFICIENT TO ENABLE NATURE TO BREAK UP THE SOLIDS.  IN SUCH CASES
PERMANENT SHOALING IN THE VICINITY OF THE POINT OF DISCHARGE RESULTS
AND DREDGING MUST BE RESORTED TO.  AS A RULE SUCH DREDGING IS WELL
ATTENDED TO BY MUNICIPAL AUTHORITIES." 

FN7  THE "MAIN GROUND" ADVANCED WAS THE INTEREST OF THE UNITED STATES
IN REMOVING OBSTRUCTIONS TO COMMERCE.  266 U.S., AT 426.  ANOTHER
GROUND WAS A TREATY WITH GREAT BRITAIN.  ID., AT 425-426.  BUT THESE
WERE ALTERNATIVE GROUNDS, THE TREATY RIGHTS BEING TREATED AS LESSER OR
SUBORDINATE INTERESTS.  ID., AT 426. 

FN8  SEE COMMENT, SUBSTANTIVE AND REMEDIAL PROBLEMS IN PREVENTING
INTERFERENCES WITH NAVIGATION: THE REPUBLIC STEEL CASE, 59 COL. L. REV.
1065, 1079. 

MEMORANDUM OF MR. JUSTICE FRANKFURTER, DISSENTING. 

IN THE ABSENCE OF COMPREHENSIVE LEGISLATION BY CONGRESS DEALING WITH
THE MATTER, I WOULD GO A LONG WAY TO SUSTAIN THE POWER OF THE UNITED
STATES, AS PARENS PATRIAE, TO ENJOIN A NUISANCE THAT SERIOUSLY
OBSTRUCTS NAVIGATION.  BUT THAT ROAD TO JUDICIAL RELIEF IN THIS CASE
IS, IN LIGHT OF WILLAMETTE IRON BRIDGE CO. V. HATCH, 125 U.S. 1, BARRED
BY THE RIVERS AND HARBORS ACT OF 1899.  FOR THE REASONS SET FORTH BY MY
BROTHER HARLAN, THE STRUCTURE AND HISTORY OF THAT ACT, REFLECTED BY THE
VERY PARTICULARITIES OF ITS PROVISIONS, MAKE IT UNAVAILABLE FOR THE
SITUATION NOW BEFORE THE COURT. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
WHITTAKER AND MR. JUSTICE STEWART JOIN, DISSENTING. 

IN MY OPINION THIS DECISION CANNOT BE RECONCILED WITH THE TERMS OF
THE RIVERS AND HARBORS ACT OF 1899, APART FROM WHICH THE COURT, AS I
UNDERSTAND ITS OPINION, DOES NOT SUGGEST THE UNITED STATES MAY PREVAIL
IN THIS CASE.  FAR FROM PRESENTING THE CLEAR AND SIMPLE STATUTORY
SCHEME DEPICTED BY THE COURT, THE PROVISIONS OF THE GOVERNING STATUTE
ARE COMPLEX AND THEIR LEGISLATIVE HISTORY TORTUOUS.  MY DISAGREEMENT
WITH THE COURT RESTS ON FOUR GROUNDS:  (1) THAT THE TERM "ANY
OBSTRUCTION" IN SEC. 10 OF THE ACT WAS NOT USED AT LARGE, SO TO SPEAK,
BUT REFERS ONLY TO THE PARTICULAR KINDS OF OBSTRUCTIONS SPECIFICALLY
ENUMERATED IN THE ACT; (2) THAT THE DISCHARGE OF THIS LIQUID MATTER
FROM THE RESPONDENTS' MILLS DOES NOT FALL WITHIN ANY OF THE ACT'S
SPECIFIC PROSCRIPTIONS; (3) THAT IN ANY EVENT INJUNCTIVE RELIEF WAS NOT
AUTHORIZED; AND (4) THAT SANITARY DISTRICT V. UNITED STATES, 266 U.S.
405, DOES NOT MILITATE AGAINST ANY OF THESE CONCLUSIONS. 

FIVE SECTIONS OF THE ACT ARE RELEVANT TO THIS CASE: 

(1)  SECTION 9, 33 U.S.C. SEC. 401, MAKES IT UNLAWFUL TO CONSTRUCT
ANY BRIDGE, DAM, DIKE, OR CAUSEWAY WITHOUT THE CONSENT OF CONGRESS AND
THE APPROVAL OF THE CHIEF OF ENGINEERS AND THE SECRETARY OF WAR. 
(FN1) 

(2)  SECTION 10, 33 U.S.C. SEC. 403, CONTAINS THREE CLAUSES:  CLAUSE
1 PROVIDES "THAT THE CREATION OF ANY OBSTRUCTION NOT AFFIRMATIVELY
AUTHORIZED BY CONGRESS, TO THE NAVIGABLE CAPACITY OF ANY OF THE WATERS
OF THE UNITED STATES IS HEREBY PROHIBITED."  CLAUSE 2 MAKES IT UNLAWFUL
TO BUILD ANY WHARF, PIER, DOLPHIN, BOOM, WEIR, BREAKWATER, BULKHEAD,
JETTY, OR OTHER STRUCTURE WITHOUT COMPLYING WITH CERTAIN CONDITIONS. 
CLAUSE 3 MAKES IT UNLAWFUL "TO EXCAVATE OR FILL, OR IN ANY MANNER TO
ALTER OR MODIFY THE COURSE, LOCATION, CONDITION, OR CAPACITY OF  ...
THE CHANNEL OF ANY NAVIGABLE WATER" WITHOUT THE AUTHORIZATION OF THE
SECRETARY OF WAR.  (FN2) 

(3)  SECTION 12, 33 U.S.C. SEC. 406, PROVIDES THAT VIOLATION OF SEC.
9, SEC. 10, OR SEC. 11 (THE LAST (FN3) NOT BEING MATERIAL HERE)
CONSTITUTES A MISDEMEANOR, AND THAT REMOVAL OF ANY "STRUCTURES OR PARTS
OF STRUCTURES" ERECTED IN VIOLATION OF SAID SECTIONS MAY BE ENFORCED BY
INJUNCTION.  (FN4) 

(4)  SECTION 13, 33 U.S.C. SEC. 407, MAKES IT UNLAWFUL TO PLACE IN
NAVIGABLE WATERS ANY REFUSE OF ANY KIND OTHER THAN "THAT FLOWING FROM
STREETS AND SEWERS AND PASSING THEREFROM IN A LIQUID STATE ...  ." 
(FN5) 

(5)  SECTION 16, 33 U.S.C. SEC. 411, MAKES VIOLATION OF SEC. 13, SEC.
14, OR SEC. 15 (THE LATTER TWO NOT BEING INVOLVED HERE) (FN6) A
MISDEMEANOR.  NO INJUNCTIVE RELIEF IS PROVIDED FOR.  (FN7) 

THE COURT HOLDS THAT RESPONDENTS HAVE VIOLATED SECS. 10 AND 13, AND
THAT INJUNCTIVE RELIEF IS AUTHORIZED UNDER THE PRESENT CIRCUMSTANCES. 
A CLOSER EXAMINATION OF THE ACT AND ITS HISTORY THAN THAT UNDERTAKEN IN
THE COURT'S OPINION, IN MY VIEW, REFUTES BOTH CONCLUSIONS. 

                                   I. 

THE COURT RELIES PRIMARILY ON THE FIRST CLAUSE OF SEC. 10, WHICH
PROVIDES: 

"THAT THE CREATION OF ANY OBSTRUCTION NOT AFFIRMATIVELY AUTHORIZED BY
CONGRESS, TO THE NAVIGABLE CAPACITY OF ANY OF THE WATERS OF THE UNITED
STATES IS HEREBY PROHIBITED  ...  ." 

IF THAT CLAUSE STOOD IN ISOLATION, IT MIGHT BEAR THE BROAD MEANING
WHICH THE COURT NOW ATTRIBUTES TO IT.  HOWEVER, IT IS BUT ONE PART OF
AN INVOLVED AND COMPREHENSIVE STATUTE WHICH HAS EMERGED FROM A LONG
LEGISLATIVE COURSE.  THE BARE WORDS OF THE CLAUSE CANNOT BE CONSIDERED
APART FROM THAT CONTEXT. 

TWO CIRCUMSTANCES APPARENT ON THE FACE OF THE STATUTE IMMEDIATELY
RAISE A DOUBT WHETHER THE TERM "ANY OBSTRUCTION" CAN BE TAKEN IN ITS
FULLEST LITERAL SENSE.  FIRST, THE CLAUSE IS SURROUNDED IN THE STATUTE
BY AN EXHAUSTIVE ENUMERATION OF PARTICULAR TYPES OF OBSTRUCTIONS AND
COGNATE ACTIVITIES, THAT IS, "BRIDGE, DAM, DIKE, OR CAUSEWAY" (SEC. 9);
"WHARF, PIER, DOLPHIN, BOOM, WEIR, BREAKWATER, BULKHEAD, JETTY, OR
OTHER STRUCTURES" (SEC. 10, CL.  2); "EXCAVATE," "FILL," "ALTER,"
"MODIFY" (SEC. 10, CL. 3); AND "ANY REFUSE MATTER OF ANY KIND" (SEC.
13).  IF THE "ANY OBSTRUCTION" CLAUSE WERE INTENDED TO COVER A CATEGORY
OF OBSTRUCTIONS NOT INCLUDED WITHIN ANY OF THE SPECIFIC ENUMERATIONS,
IT IS STRANGE THAT IT SHOULD BE INSERTED AT THE BEGINNING OF A SECTION
WHICH LISTS SEVERAL SPECIFIC OBSTRUCTIONS AND WHICH IS ITSELF BOTH
PRECEDED AND FOLLOWED BY OTHER SECTIONS MAKING SIMILAR ENUMERATIONS. 
SECOND, THE LAWFUL CREATION OF THE STRUCTURAL OBSTRUCTIONS MENTIONED IN
SEC. 9 REQUIRES THE APPROVAL OF CONGRESS, WHILE THOSE LISTED IN CLAUSES
2 AND 3 OF SEC. 10 AND IN SEC. 13 CAN BE LAWFULLY ACCOMPLISHED WITH
ONLY THE AUTHORIZATION OF THE SECRETARY OF WAR.  YET CLAUSE 1 OF SEC.
10 SAYS THAT "ANY OBSTRUCTION" MUST BE AFFIRMATIVELY AUTHORIZED BY
CONGRESS.  IF THE CLAUSE IS TAKEN IN ITS LITERAL SENSE, THE CONDITION
OF CONGRESSIONAL APPROVAL THEREIN PRESCRIBED IS DIFFICULT TO SQUARE
WITH THE CONDITION OF APPROVAL BY THE SECRETARY OF WAR PRESCRIBED AS TO
MANY OF THE OBSTRUCTIONS SPECIFICALLY ENUMERATED.  (FN8)  BECAUSE OF
THE DOUBTS RAISED BY THESE CONSIDERATIONS, IT BECOMES NECESSARY TO
EXPLORE THE DERIVATION OF THE 1899 ACT.  WHEN THIS IS DONE, I BELIEVE
IT WILL BE FOUND THAT "ANY OBSTRUCTION" WILL NOT BEAR THE BROAD MEANING
GIVEN IT BY THE COURT, BUT THAT IT MUST BE TAKEN AS EMBRACING ONLY THE
PARTICULAR OBSTRUCTIONS SPECIFIED IN THE STATUTE. 

THE PROVISIONS OF THE 1899 ACT DEALING WITH OBSTRUCTIONS DERIVE
ULTIMATELY FROM A PROPOSAL MADE BY THE CHIEF OF ENGINEERS AND
TRANSMITTED TO CONGRESS BY THE SECRETARY OF WAR IN 1877.  (FN9)  A BILL
BASED ON THIS RECOMMENDATION WAS THREE TIMES INTRODUCED IN CONGRESS,
(FN10) AND CAME TO BE KNOWN AS THE DOLPH BILL.  IT WAS REPORTED
FAVORABLY ALL THREE TIMES, AND WAS PASSED BY THE SENATE TWICE.  (FN11)
IT ENUMERATED THE PROSCRIBED OBSTRUCTIONS IN TERMS VIRTUALLY IDENTICAL
TO THOSE CONTAINED IN THE 1899 ACT, BUT DID NOT CONTAIN THE "ANY
OBSTRUCTION" CLAUSE FOUND IN SEC. 10 OF THAT ACT. 

AFTER THE SENATE HAD FOR THE SECOND TIME PASSED THE DOLPH BILL BUT
BEFORE THE HOUSE HAD ACTED ON IT, THE ANNUAL RIVERS AND HARBORS
APPROPRIATION BILL, WHICH WAS TO BECOME THE RIVERS AND HARBORS ACT OF
1890, (FN12) CAME UP FOR CONSIDERATION ON THE FLOOR OF CONGRESS.  THE
BILL ALREADY CONTAINED A SET OF PROVISIONS DEALING WITH THE POWER OF
THE SECRETARY OF WAR TO ORDER THE ALTERATION OR REMOVAL OF BRIDGES
WHICH OBSTRUCTED NAVIGATION.  DURING THE SENATE DEBATE ON THOSE
PROVISIONS, SENATOR EDMUNDS OF VERMONT OFFERED AS AN AMENDMENT AN
ADDITIONAL SECTION WHICH PROVIDED AS FOLLOWS:    "EVERY OBSTRUCTION,
NOT AFFIRMATIVELY AUTHORIZED BY LAW, TO THE NAVIGABLE CAPACITY OF ANY
WATERS IN RESPECT OF WHICH THE UNITED STATES HAS JURISDICTION IS HEREBY
PROHIBITED  ...  .  EVERY PERSON AND EVERY CORPORATION WHICH SHALL BE
GUILTY OF CREATING OR CONTINUING ANY SUCH OBSTRUCTION IN THIS SECTION
MENTIONED SHALL BE DEEMED GUILTY OF A MISDEMEANOR  ...  .  THE CREATING
OR CONTINUING OF ANY OBSTRUCTION IN THIS SECTION MENTIONED MAY BE
PREVENTED BY THE INJUNCTION OF ANY CIRCUIT COURT  ... ."  (FN13) 

SUBSEQUENTLY, THE DOLPH BILL WAS OFFERED IN TOTO AS A FURTHER
AMENDMENT.  (FN14)  THE SENATE ACCEPTED THE EDMUNDS AMENDMENT AND
PASSED THE APPROPRIATION BILL AS SO AMENDED, (FN15) BUT IT REFUSED TO
ADD THE DOLPH BILL.  (FN16)  IN CONFERENCE, HOWEVER, IT WAS DECIDED TO
ACCEPT BOTH BY COMBINING THEM.  THE PENAL SECTION OF THE DOLPH BILL,
WHICH FOLLOWED ALL OF THE SECTIONS ENUMERATING PARTICULAR OBSTRUCTIONS,
HAD PROVIDED SIMPLY THAT EVERY OFFENDER AGAINST ANY PROVISION OF THE
ACT SHOULD FORFEIT A $250 PENALTY AND BE LIABLE FOR ACTUAL DAMAGES. 
THE CONFEREES DELETED THAT ENTIRE SECTION AND REPLACED IT WITH AN
ADAPTATION OF THE EDMUNDS AMENDMENT.  (FN17)  THE LATTER, WHICH WAS
ENACTED INTO LAW AS SEC. 10 OF THE RIVERS AND HARBORS ACT OF 1890, READ
AS FOLLOWS: 

"THAT THE CREATION OF ANY OBSTRUCTION, NOT AFFIRMATIVELY AUTHORIZED
BY LAW, TO THE NAVIGABLE CAPACITY OF ANY WATERS, IN RESPECT OF WHICH
THE UNITED STATES HAS JURISDICTION, IS HEREBY PROHIBITED  ...  .  EVERY
PERSON AND EVERY CORPORATION WHICH SHALL BE GUILTY OF CREATING OR
CONTINUING ANY SUCH UNLAWFUL OBSTRUCTION IN THIS ACT MENTIONED, OR WHO
SHALL VIOLATE THE PROVISIONS OF THE LAST FOUR PRECEDING SECTIONS OF
THIS ACT, SHALL BE DEEMED GUILTY OF A MISDEMEANOR  ...  .  THE CREATING
OR CONTINUING OF ANY UNLAWFUL OBSTRUCTION IN THIS ACT MENTIONED MAY BE
PREVENTED AND SUCH OBSTRUCTION MAY BE CAUSED TO BE REMOVED BY THE
INJUNCTION OF ANY CIRCUIT COURT  ...  ."  (FN18) 

THUS, THE EDMUNDS AMENDMENT, IN WHICH THE "ANY OBSTRUCTION" CLAUSE
HAD FIRST APPEARED, AND WHICH CARRIED BOTH PENAL AND INJUNCTIVE
SANCTIONS, WAS SUBSTITUTED FOR A SECTION WHICH THERETOFORE HAD
CONTAINED PURELY PENAL PROVISIONS AND HAD FOLLOWED AN EXHAUSTIVE
ENUMERATION OF THOSE PARTICULAR OBSTRUCTIONS TO WHICH THE PENALTIES
APPLIED.  IT IS TO BE FURTHER NOTED THAT WHILE THE ORIGINAL EDMUNDS
AMENDMENT HAD MADE ITS REMEDIAL PROVISIONS APPLICABLE TO ANY PERSON
CREATING "ANY SUCH OBSTRUCTION IN THIS SECTION MENTIONED," CONGRESS, IN
INCORPORATING THE EDMUNDS AMENDMENT INTO THE DOLPH BILL, MADE SUCH
PROVISIONS APPLICABLE TO ANY PERSON CREATING "ANY SUCH UNLAWFUL
OBSTRUCTION IN THIS ACT MENTIONED, OR WHO SHALL VIOLATE THE PROVISIONS
OF THE LAST FOUR PRECEDING SECTIONS OF THS ACT  ...  ."  IN BOTH
INSTANCES, THE WORD "SUCH" CLEARLY REFERRED BACK TO THE INITIAL
SENTENCE OF THE SECTION PROHIBITING "ANY OBSTRUCTION," THE ONLY PLACE
IN EITHER BILL WHERE THAT TERM APPEARS.  WHATEVER THE MEANING OF "ANY
OBSTRUCTION" MAY HAVE BEEN IN THE ORIGINAL EDMUNDS AMENDMENT, CONGRESS
MADE IT CLEAR IN SEC. 10 OF THE 1890 ACT THAT "SUCH" OBSTRUCTION MEANT
THOSE OBSTRUCTIONS "IN THIS ACT MENTIONED."  TO CONSIDER "ANY
OBSTRUCTION" IN THAT SECTION AS EMBRACING SOMETHING MORE THAN THE KINDS
OF OBSTRUCTIONS SPECIFICALLY ENUMERATED IN THE ACT WOULD LEAD TO THE
CONCLUSION THAT THE REMEDIAL PROVISIONS OF SEC. 10 DID NOT COVER ALL
THE OBSTRUCTIONS PROSCRIBED BY THE FIRST SENTENCE OF THE SECTION. 
(FN19)  DEFINITION OF AN ADDITIONAL SET OF OFFENDERS - THOSE "WHO SHALL
VIOLATE THE PROVISIONS OF THE LAST FOUR PRECEDING SECTIONS OF THIS ACT"
- WAS MADE NECESSARY BY THE FACT THAT THE DOLPH BILL CONTAINED
PROHIBITIONS OF SEVERAL PRACTICES WHICH MIGHT NOT AMOUNT TO
OBSTRUCTIONS. 

FROM THIS BACKGROUND, I THINK THE REASONABLE CONCLUSION TO BE DRAWN
IS THAT "ANY OBSTRUCTION" IN SEC. 10 OF THE 1890 ACT REFERRED ONLY TO
THOSE OBSTRUCTIONS ENUMERATED IN THE PRECEDING SECTIONS OF THE ACT, AND
NOT TO OBSTRUCTION IN THE CATCHALL SENSE.  (FN20) 

THE RIVERS AND HARBORS ACT OF 1899, WITH WHICH THE PRESENT CASE IS
DIRECTLY CONCERNED, CAME ABOUT AS A RESULT OF CONGRESS' DIRECTION OF
THE SECRETARY OF WAR IN 1896 TO PREPARE A COMPILATION AND REVISION OF
EXISTING GENERAL LAWS RELATING TO NAVIGABLE WATERS.  (FN21)  THE
SECRETARY'S REPORT PURPORTED ONLY TO CODIFY EXISTING LAW WITH NO
SUBSTANTIVE CHANGES, (FN22) AND SENATOR FRYE, THE CHAIRMAN OF THE
COMMERCE COMMITTEE, AND THE CONFEREES ON THE BILL AS ULTIMATELY PASSED,
CONFIRMED THAT THE LEGISLATION WAS TO HAVE NO NEW SUBSTANTIVE EFFECT. 
(FN23)  THIS INDEED IS RECOGNIZED BY THE COURT.  AS PART OF THE
CODIFICATION, CONGRESS TOOK THE FIRST SENTENCE OF SEC. 10 OF THE 1890
ACT AND INSERTED IT AS THE FIRST SENTENCE OF ONE OF THE PROVISIONS
ENUMERATING SEVERAL SPECIFIC OBSTRUCTIONS WHICH THEN BECAME SEC. 10 OF
THE 1899 ACT.  (FN24)  THERE IS NOTHING TO INDICATE THAT IN SO DOING,
CONGRESS DEPARTED FROM ITS ANNOUNCED INTENTION TO LEAVE THE SUBSTANCE
OF THE ACT UNCHANGED.  THUS THE "ANY OBSTRUCTION" LANGUAGE TO THE FIRST
SENTENCE OF NEW SEC. 10 WAS, AS IT HAD BEEN IN THE OLD SEC. 10, SIMPLY
DECLARATORY OF ALL THE OBSTRUCTIONS SPECIFICALLY PROSCRIBED THROUGHOUT
THE ACT, WHETHER OR A STRUCTURAL OR NONSTRUCTURAL NATURE.  (FN25)

                                             II. 

I CANNOT AGREE THAT RESPONDENTS' PRACTICES ARE PROHIBITED BY ANY OF
THE SPECIFIC PROVISIONS OF THE ACT OF WHICH SEC. 10, CL. 1, IS
DECLARATORY.  THE COURT SEEMS TO RELY IN PART ON SEC. 10, CL. 3, ON THE
THEORY THAT THE DISCHARGE FROM RESPONDENTS' PLANTS "ALTER OR MODIFY THE
...  CAPACITY" OF THE CALUMET RIVER.  BUT AGAIN, THIS PROVISION MUST
BE READ IN CONTEXT.  IT IS EVIDENT THAT IN SECS. 9 AND 10 CONGRESS WAS
DEALING WITH OBSTRUCTIONS WHICH ARE CONSTRUCTED, IN A CONVENTIONAL
SENSE, RESERVING FOR SEC. 13 THE TREATMENT OF DISCHARGES OF REFUSE
WHICH MAY EVENTUALLY CREATE OBSTRUCTIONS.  THE STRUCTURE OF SEC. 10,
CL. 3, ITSELF CONFIRMS THIS.  THE BASIC PROHIBITION OF THE CLAUSE
RELATES TO EXCAVATIONS AND FILLS, BOTH OF WHICH REPRESENT CONSTRUCTION
IN THE ORDINARY SENSE OF THAT TERM.  THE IMMEDIATELY FOLLOWING PHRASE,
"OR IN ANY MANNER TO ALTER OR MODIFY THE  ... CAPACITY  ...  OF THE
CHANNEL OF ANY NAVIGABLE WATER," MUST BE READ AS REFERRING TO THE SAME
GENERAL CLASS OF THINGS AS THE BASIC PROHIBITION OF THE CLAUSE.  IF
THERE COULD BE ANY DOUBT ABOUT THE CLAUSE'S FRAME OF REFERENCE, IT IS
DISPELLED BY THE CONCLUDING WORDS:  "UNLESS THE WORK HAS BEEN
RECOMMENDED BY THE CHIEF OF ENGINEERS AND AUTHORIZED BY THE SECRETARY
OF WAR PRIOR TO BEGINNING THE SAME." 

FINALLY, I DO NOT BELIEVE THAT SEC. 13 CAN BE CONSTRUED TO PROSCRIBE
RESPONDENTS' PRACTICES.  THE TERM "ANY REFUSE MATTER OF ANY KIND OR
DESCRIPTION WHATEVER" UNDOUBTEDLY EMBRACES THE MATTER DISCHARGED FROM
RESPONDENTS' MILLS.  HOWEVER, SEC. 13 EXPRESSLY EXEMPTS REFUSE "FLOWING
FROM STREETS AND SEWERS AND PASSING THEREFROM IN A LIQUID STATE." 
(FN26)  THE COURT SAYS THAT MATERIALS IN "A LIQUID STATE" MUST MEAN
MATERIALS WHICH DO NOT SETTLE OUT.  BUT IT IS DIFFICULT TO BELIEVE THAT
A NINETEENTH CENTURY CONGRESS, IN CARVING OUT AN EXCEPTION FOR LIQUID
SEWAGE, MEANT TO ESTABLISH AN ABSOLUTE STANDARD OF PURITY WHICH NOT
ONLY BORE NO RELATION TO THE PREVAILING PRACTICE OF SEWAGE DISPOSAL AT
THE TIME, (FN27) BUT ALSO IS IMPOSSIBLE TO ACHIEVE EVEN UNDER PRESENT
DAY TECHNOLOGY.  IT IS CONCEDED THAT DESPITE RESPONDENTS' BEST EFFORTS
TO SEPARATE OUT INDUSTRIAL SOLIDS, A FEW MINUTE PARTICLES REMAIN. 
THESE COMPRISE A SMALL FRACTION OF 1% OF THE TOTAL SOLUTION AND THE
MOST DAMAGING OF THEM ARE TOO SMALL TO BE SEEN UNDER A MICROSCOPE.  ONE
NEED NOT BE AN EXPERT TO SAY THAT THE REFUSE DISCHARGED BY AN ORDINARY
SEWER PIPE TODAY, AND A FORTIORI 60 YEARS AGO, UNDOUBTEDLY CONTAINS FAR
MORE SOLID MATTER IN SUSPENSION THAN RESPONDENTS' DISCHARGES.  AND THE
STATUTE AFFORDS NO BASIS FOR DIFFERENTIATING, AS THE COURT SUGGESTS,
BETWEEN INDUSTRIAL AND DOMESTIC REFUSE. 

                                         III. 

EVEN IF A VIOLATION OF SEC. 10 AND SEC. 13 COULD BE ESTABLISHED,
INJUNCTIVE RELIEF WOULD NOT BE AUTHORIZED.  THE COURT SEEMS TO AVOID
SAYING THAT THE STATUTE PROVIDES FOR INJUNCTIVE RELIEF UNDER THE
PRESENT CIRCUMSTANCES, BUT HOLDS THAT THE PROPRIETY OF SUCH RELIEF CAN
SOMEHOW BE "INFERRED" FROM THE STATUTE.  HOWEVER, WHERE, AS IN THIS
STATUTE, CONGRESS HAS PROVIDED A DETAILED AND LIMITED SCHEME OF
REMEDIES, IT SEEMS TO ME THE COURT IS PRECLUDED FROM DRAWING ON ANY
SOURCE OUTSIDE THE ACT.  ONE NEED GO NO FARTHER THAN THE PLAIN WORDS OF
SEC. 16, WHICH PRESCRIBES THE PENALTIES FOR VIOLATION OF SEC. 13, TO
SEE THAT AN INJUNCTION AGAINST VIOLATION OF THE LATTER SECTION IS NOT
AUTHORIZED.  AS TO VIOLATIONS OF SEC. 10, SECTION 12 PROVIDES ONLY THAT
"THE REMOVAL OF ANY STRUCTURES OR PARTS OF STRUCTURES ERECTED IN
VIOLATION OF" SEC. 9, SEC. 10, OR SEC. 11 MAY BE ENFORCED BY
INJUNCTION. 

THE GOVERNMENT RELIES HEAVILY ON THE FACT THAT THE COMPARABLE
PROVISION IN SEC. 10 OF THE 1890 ACT AUTHORIZED INJUNCTIVE RELIEF
AGAINST "ANY UNLAWFUL OBSTRUCTION."  A CLOSER EXAMINATION OF THAT
AUTHORIZED CRIMINAL PENALTIES IN TWO INSTANCES:  FIRST, FOR THE
CREATION OF ANY UNLAWFUL OBSTRUCTION MENTIONED IN THE ACT, AND SECOND,
FOR VIOLATION OF THE PRECEDING FOUR SECTIONS.  BY CONTRAST, THE SECTION
AUTHORIZED INJUNCTIVE RELIEF ONLY IN THE FIRST INSTANCE - THE CREATION
OF ANY UNLAWFUL OBSTRUCTION "IN THIS ACT MENTIONED."  TO ME THIS
INDICATES THAT A DELIBERATE DISTINCTION WAS DRAWN BETWEEN THOSE
PROHIBITIONS RELATING TO OBSTRUCTIONS CREATED BY CONSTRUCTION IN THE
ORDINARY SENSE AND THOSE RELATING TO OTHER TYPES OF INTERFERENCES WITH
NAVIGATION, INCLUDING THE DISCHARGE OF REFUSE.  IN THE 1899 ACT, THE
PROVISIONS RELATING TO THE ERECTION OF PARTICULAR TYPES OF OBSTRUCTIONS
WERE GATHERED TOGETHER IN SECS. 9, 10, AND 11 AND SUBJECTED TO THE
PENALTIES OF SEC. 12.  THE CRIMINAL PENALTIES OF SEC. 12 ARE APPLICABLE
TO ANY VIOLATION OF THE PRECEDING THREE SECTIONS (AND ANY RULE
PROMULGATED BY THE SECRETARY OF THE ARMY UNDER SEC. 14), WHILE
INJUNCTIVE RELIEF IS LIMITED TO "STRUCTURES OR PARTS OF STRUCTURES,"
THUS REFLECTING THE SAME DISTINCTION MADE IN THE 1890 ACT.  THE
PROVISIONS RELATING TO VIOLATIONS NOT INVOLVING THE ERECTION OF ANY
STRUCTURES, SUCH AS DISCHARGE OF REFUSE, UNAUTHORIZED USE OF GOVERNMENT
NAVIGATIONAL INSTALLATIONS, AND CARELESS SINKING OF VESSELS, WERE
GATHERED TOGETHER IN SECS. 13, 14, AND 15 AND SUBJECTED TO THE
PENALTIES OF SEC. 16.  THE LAST-MENTIONED SECTION IS CONSPICUOUSLY
LACKING IN ANY REFERENCE TO INJUNCTIVE RELIEF, THUS AGAIN REFLECTING
THE DISTINCTION ESTABLISHED BY THE 1890 ACT.  SINCE THE DEPOSITS
ATTRIBUTABLE TO RESPONDENTS' MILLS ARE NOT "STRUCTURES" WITHIN THE
MEANING OF SEC. 12, THEIR REMOVAL, AS I READ THE ACT, CANNOT BE
ENFORCED BY INJUNCTION. 

THE COURT SEEMS TO SAY THAT SEC. 17, WHICH DIRECTS THE DEPARTMENT OF
JUSTICE TO CONDUCT THE LEGAL PROCEEDINGS NECESSARY TO ENFORCE THE ACT,
ITSELF AUTHORIZES INJUNCTIVE RELIEF.  BUT IT WOULD HAVE BEEN FUTILE FOR
CONGRESS TO PRESCRIBE AND CAREFULLY LIMIT THE RELIEF AVAILABLE FOR
VIOLATION OF THE ACT IF SEC. 17 WERE MEANT TO AUTHORIZE A DISREGARD OF
THOSE LIMITATIONS.  SECTION 17, IN MY VIEW, DOES NO MORE THAN ALLOCATE
WITHIN THE GOVERNMENT THE RESPONSIBILITY FOR THE INVOCATION OF THOSE
REMEDIES ALREADY AUTHORIZED BY CONGRESS. 

                                 IV. 

THE CASE OF SANITARY DISTRICT V. UNITED STATES, SUPRA, IS NOT, IN MY
OPINION, THE "DECISIVE" AUTHORITY WHICH THE COURT FINDS IT TO BE,
EITHER AS TO THE QUESTION WHETHER A VIOLATION HAS TAKEN PLACE OR AS TO
WHETHER INJUNCTIVE RELIEF WOULD BE AUTHORIZED UNDER THE PRESENT
CIRCUMSTANCES, GIVEN A VIOLATION OF THE ACT.  THE UNITED STATES IN THAT
CASE HAD ORIGINALLY SOUGHT AN INJUNCTION AGAINST THE CONSTRUCTION OF
THE CALUMET-SAG CHANNEL AND LATER AGAINST THE DIVERSION THEREBY OF
WATER FROM LAKE MICHIGAN IN EXCESS OF THE AMOUNT AUTHORIZED BY THE
SECRETARY OF WAR.  THERE IS NO DOUBT THAT A SUBSTANTIVE VIOLATION OF
THE ACT WAS MADE OUT UNDER SECS. 9 AND 10, SINCE THE COMPLAINED-OF
DIVERSION AND CONSEQUENT ALTERATION IN THE NAVIGABLE CAPACITY OF THE
GREAT LAKES HAD BEEN BROUGHT ABOUT BY THE EXCAVATION OF A CHANNEL AND
THE CONSTRUCTION OF PUMPING STATIONS, INTERCEPTING SEWERS, MOVABLE
DAMS, AND NAVIGATIONAL LOCKS.  (FN28)  BY CONTRAST, RESPONDENTS IN THE
PRESENT CASE HAVE ERECTED NO STRUCTURES WHICH COULD GIVE RISE TO EITHER
A VIOLATION OF THE ACT OR A RIGHT TO INJUNCTIVE RELIEF. 

TO THE EXTENT THAT SANITARY DISTRICT RELIED ON THE INHERENT POWER OF
THE UNITED STATES, APART FROM THE STATUTE, IT IS WIDE OF THE MARK IN
THIS SITUATION.  THE COURT HERE SEEMS TO CONCEDE THAT THE SANITARY CASE
IS NO AUTHORITY FOR INFERRING A SUBSTANTIVE CAUSE OF ACTION ARISING
FROM THE CONSTITUTIONAL POWER OF THE UNITED STATES OVER NAVIGABLE
WATERS.  INDEED, NO OTHER CONCLUSION COULD WELL BE REACHED IN VIEW OF
THE HOLDING IN WILLAMETTE IRON BRIDGE CO. V. HATCH, 125 U.S. 1, 8, THAT
"THERE IS NO COMMON LAW OF THE UNITED STATES WHICH PROHIBITS
OBSTRUCTIONS AND NUISANCES IN NAVIGABLE RIVERS," AND OF THE OPINION IN
WISCONSIN V. ILLINOIS, 278 U.S. 367, 414, WHICH SAID OF THE SANITARY
CASE THAT "THE DECISION THERE REACHED AND THE DECREE ENTERED CAN NOT BE
SUSTAINED, EXCEPT ON THE THEORY THAT THE COURT DECIDED  ...  THAT
CONGRESS HAD EXERCISED THE POWER TO PREVENT INJURY TO THE NAVIGABILITY
OF LAKE MICHIGAN  ...  ." 

THE COURT NEVERTHELESS SEEMS TO FIND THE SANITARY CASE AN
AUTHORIZATION TO INFER THAT THE UNITED STATES HAS A RIGHT TO INJUNCTIVE
RELIEF, DESPITE THE STATUTE'S FAILURE TO PROVIDE FOR IT.  WHATEVER THE
VALIDITY OF THAT PROPOSITION MAY HAVE BEEN IN THE CONTEXT OF SANITARY,
IT CAN HAVE NO APPLICABILITY HERE.  FOR IN THE FORMER CASE, THE EFFECT
OF THE COMPLAINED-OF PRACTICES WAS TO LOWER THE LEVEL OF THE ENTIRE
GREAT LAKES SYSTEM.  THE GOVERNMENT THERE ARGUED THAT A RIGHT TO
INJUNCTIVE RELIEF COULD BE INFERRED BECAUSE OF THE REPERCUSSIONS OF THE
STATE'S ACTION BEYOND ITS OWN BORDERS, (FN29) AND THE COURT EXPRESSLY
RELIED UPON THE "SOVEREIGN INTEREST" OF THE UNITED STATES IN ALL THE
GREAT LAKES AND UPON A TREATY WITH GREAT BRITAIN TOUCHING THE USE OF
CANADIAN BOUNDARY WATERS.  IN THE PRESENT CASE, THE WATERS AFFECTED
CONSIST OF A FEW MILES OF THE CALUMET RIVER LYING WHOLLY WITHIN THE
STATE OF ILLINOIS, AND NO TREATY OR INTERNATIONAL OBLIGATION IS
INVOLVED.    WHAT HAS HAPPENED HERE IS CLEAR.  IN ORDER TO REACH WHAT
IT CONSIDERS A JUST RESULT THE COURT, IN THE NAME OF "CHARITABLY"
CONSTRUING THE ACT, HAS FELT JUSTIFIED IN READING INTO THE STATUTE
THINGS THAT ACTUALLY ARE NOT THERE.  HOWEVER APPEALING THE ATTEMPT TO
MAKE THIS OLD PIECE OF LEGISLATION FIT MODERN-DAY CONDITIONS MAY BE,
SUCH A COURSE IS NOT A PERMISSIBLE ONE FOR A COURT OF LAW, WHOSE
FUNCTION IT IS TO TAKE A STATUTE AS IT FINDS IT.  THE FILLING OF
DEFICIENCIES IN THE STATUTE, SO THAT THE BURDENS OF MAINTAINING THE
INTEGRITY OF OUR GREAT NAVIGABLE RIVERS AND HARBORS MAY BE FAIRLY
ALLOCATED BETWEEN THOSE USING THEM AND THE GOVERNMENT, IS A MATTER FOR
CONGRESS, NOT FOR THIS COURT. 

I WOULD AFFIRM. 

FN1  SECTION 9 PROVIDES IN FULL AS FOLLOWS: 

"THAT IT SHALL NOT BE LAWFUL TO CONSTRUCT OR COMMENCE THE
CONSTRUCTION OF ANY BRIDGE, DAM, DIKE, OR CAUSEWAY OVER OR IN ANY PORT,
ROADSTEAD, HAVEN, HARBOR, CANAL, NAVIGABLE RIVER, OR OTHER NAVIGABLE
WATER OF THE UNITED STATES UNTIL THE CONSENT OF CONGRESS TO THE
BUILDING OF SUCH STRUCTURES SHALL HAVE BEEN OBTAINED AND UNTIL THE
PLANS FOR THE SAME SHALL HAVE BEEN SUBMITTED TO AND APPROVED BY THE
CHIEF OF ENGINEERS AND BY THE SECRETARY OF WAR:  PROVIDED, THAT SUCH
STRUCTURES MAY BE BUILT UNDER AUTHORITY OF THE LEGISLATURE OF A STATE
ACROSS RIVERS AND OTHER WATERWAYS THE NAVIGABLE PORTIONS OF WHICH LIE
WHOLLY WITHIN THE LIMITS OF A SINGLE STATE, PROVIDED THE LOCATION AND
PLANS THEREOF ARE SUBMITTED TO AND APPROVED BY THE CHIEF OF ENGINEERS
AND BY THE SECRETARY OF WAR BEFORE CONSTRUCTION IS COMMENCED:  AND
PROVIDED FURTHER, THAT WHEN PLANS FOR ANY BRIDGE OR OTHER STRUCTURE
HAVE BEEN APPROVED BY THE CHIEF OF ENGINEERS AND BY THE SECRETARY OF
WAR, IT SHALL NOT BE LAWFUL TO DEVIATE FROM SUCH PLANS EITHER BEFORE OR
AFTER COMPLETION OF THE STRUCTURE UNLESS THE MODIFICATION OF SAID PLANS
HAS PREVIOUSLY BEEN SUBMITTED TO AND RECEIVED THE APPROVAL OF THE CHIEF
OF ENGINEERS AND OF THE SECRETARY OF WAR." 

FN2  SECTION 10 PROVIDES IN FULL AS FOLLOWS: 

"THAT THE CREATION OF ANY OBSTRUCTION NOT AFFIRMATIVELY AUTHORIZED BY
CONGRESS, TO THE NAVIGABLE CAPACITY OF ANY OF THE WATERS OF THE UNITED
STATES IS HEREBY PROHIBITED; AND IT SHALL NOT BE LAWFUL TO BUILD OR
COMMENCE THE BUILDING OF ANY WHARF, PIER, DOLPHIN, BOOM, WEIR,
BREAKWATER, BULKHEAD, JETTY, OR OTHER STRUCTURES IN ANY PORT,
ROADSTEAD, HAVEN, HARBOR, CANAL, NAVIGABLE RIVER, OR OTHER WATER OF THE
UNITED STATES, OUTSIDE ESTABLISHED HARBOR LINES, OR WHERE NO HARBOR
LINES HAVE BEEN ESTABLISHED, EXCEPT ON PLANS RECOMMENDED BY THE CHIEF
OF ENGINEERS AND AUTHORIZED BY THE SECRETARY OF WAR; AND IT SHALL NOT
BE LAWFUL TO EXCAVATE OR FILL, OR IN ANY MANNER TO ALTER OR MODIFY THE
COURSE, LOCATION, CONDITION, OR CAPACITY OF, ANY PORT, ROADSTEAD,
HAVEN, HARBOR, CANAL, LAKE, HARBOR OF REFUGE, OR INCLOSURE WITHIN THE
LIMITS OF ANY BREAKWATER, OR OF THE CHANNEL OF ANY NAVIGABLE WATER OF
THE UNITED STATES, UNLESS THE WORK HAS BEEN RECOMMENDED BY THE CHIEF OF
ENGINEERS AND AUTHORIZED BY THE SECRETARY OF WAR PRIOR TO BEGINNING THE
SAME." 

FN3  SECTION 11 DEALS WITH THE POWER OF THE SECRETARY OF WAR TO
ESTABLISH HARBOR LINES. 

FN4  SECTION 12 PROVIDES IN FULL AS FOLLOWS: 

"THAT EVERY PERSON AND EVERY CORPORATION THAT SHALL VIOLATE ANY OF
THE PROVISIONS OF SECTIONS NINE, TEN, AND ELEVEN OF THIS ACT, OR ANY
RULE OR REGULATION MADE BY THE SECRETARY OF WAR IN PURSUANCE OF THE
PROVISIONS OF THE SAID SECTION FOURTEEN, SHALL BE DEEMED GUILTY OF A
MISDEMEANOR, AND ON CONVICTION THEREOF SHALL BE PUNISHED BY A FINE NOT
EXCEEDING TWENTY-FIVE HUNDRED DOLLARS NOR LESS THAN FIVE HUNDRED
DOLLARS, OR BY IMPRISONMENT (IN THE CASE OF A NATURAL PERSON) NOT
EXCEEDING ONE YEAR, OR BY BOTH SUCH PUNISHMENTS, IN THE DISCRETION OF
THE COURT.  AND FURTHER, THE REMOVAL OF ANY STRUCTURES OR PARTS OF
STRUCTURES ERECTED IN VIOLATION OF THE PROVISIONS OF THE SAID SECTIONS
MAY BE ENFORCED BY THE INJUNCTION OF ANY CIRCUIT COURT EXERCISING
JURISDICTION IN ANY DISTRICT IN WHICH SUCH STRUCTURES MAY EXIST, AND
PROPER PROCEEDINGS TO THIS END MAY BE INSTITUTED UNDER THE DIRECTION OF
THE ATTORNEY-GENERAL OF THE UNITED STATES." 

FN5  SECTION 13 PROVIDES IN FULL AS FOLLOWS: 

"THAT IT SHALL NOT BE LAWFUL TO THROW, DISCHARGE, OR DEPOSIT, OR
CAUSE, SUFFER, OR PROCURE TO BE THROWN, DISCHARGED, OR DEPOSITED EITHER
FROM OR OUT OF ANY SHIP, BARGE, OR OTHER FLOATING CRAFT OF ANY KIND, OR
FROM THE SHORE, WHARF, MANUFACTURING ESTABLISHMENT, OR MILL OF ANY
KIND, ANY REFUSE MATTER OF ANY KIND OR DESCRIPTION WHATEVER OTHER THAN
THAT FLOWING FROM STREETS AND SEWERS AND PASSING THEREFROM IN A LIQUID
STATE, INTO ANY NAVIGABLE WATER OF THE UNITED STATES, OR INTO ANY
TRIBUTARY OF ANY NAVIGABLE WATER FROM WHICH THE SAME SHALL FLOAT OR BE
WASHED INTO SUCH NAVIGABLE WATER; AND IT SAHLL NOT BE LAWFUL TO
DEPOSIT, OR CAUSE, SUFFER, OR PROCURE TO BE DEPOSITED MATERIAL OF ANY
KIND IN ANY PLACE ON THE BANK OF ANY NAVIGABLE WATER, OR ON THE BANK OF
ANY TRIBUTARY OF ANY NAVIGABLE WATER, WHERE THE SAME SHALL BE LIABLE TO
BE WASHED INTO SUCH NAVIGABLE WATER, EITHER BY ORDINARY OR HIGH TIDES,
OR BY STORMS OR FLOODS, OR OTHERWISE, WHEREBY NAVIGATION SHALL OR MAY
BE IMPEDED OR OBSTRUCTED:  PROVIDED, THAT NOTHING HEREIN CONTAINED
SHALL EXTEND TO, APPLY TO, OR PROHIBIT THE OPERATIONS IN CONNECTION
WITH THE IMPROVEMENT OF NAVIGABLE WATERS OR CONSTRUCTION OF PUBLIC
WORKS, CONSIDERED NECESSARY AND PROPER BY THE UNITED STATES OFFICERS
SUPERVISING SUCH IMPROVEMENT OR PUBLIC WORK:  AND PROVIDED FURTHER,
THAT THE SECRETARY OF WAR, WHENEVER IN THE JUDGMENT OF THE CHIEF OF
ENGINEERS ANCHORAGE AND NAVIGATION WILL NOT BE INJURED THEREBY, MAY
PERMIT THE DEPOSIT OF ANY MATERIAL ABOVE MENTIONED IN NAVIGABLE WATERS,
WITHIN LIMITS TO BE DEFINED AND UNDER CONDITIONS TO BE PRESCRIBED BY
HIM, PROVIDED APPLICATION IS MADE TO HIM PRIOR TO DEPOSITING SUCH
MATERIAL; AND WHENEVER ANY PERMIT IS SO GRANTED THE CONDITIONS THEREOF
SHALL BE STRICTLY COMPLIED WITH, AND ANY VIOLATION THEREOF SHALL BE
UNLAWFUL." 

FN6  SECTION 14 DEALS WITH UNAUTHORIZED USE AND OCCUPATION OF FEDERAL
NAVIGATIONAL INSTALLATIONS.  SECTION 15 DEALS WITH FLOATING
OBSTRUCTIONS AND SUNKEN VESSELS. 

FN7  SECTION 16 PROVIDES IN FULL AS FOLLOWS: 

"THAT EVERY PERSON AND EVERY CORPORATION THAT SHALL VIOLATE, OR THAT
SHALL KNOWINGLY AID, ABET, AUTHORIZE, OR INSTIGATE A VIOLATION OF THE
PROVISIONS OF SECTIONS THIRTEEN, FOURTEEN, AND FIFTEEN OF THIS ACT
SHALL BE GUILTY OF A MISDEMEANOR, AND ON CONVICTION THEREOF SHALL BE
PUNISHED BY A FINE NOT EXCEEDING TWENTY-FIVE HUNDRED DOLLARS NOR LESS
THAN FIVE HUNDRED DOLLARS, OR BY IMPRISONMENT (IN THE CASE OF A NATURAL
PERSON) FOR NOT LESS THAN THIRTY DAYS NOR MORE THAN ONE YEAR, OR BY
BOTH SUCH FINE AND IMPRISONMENT, IN THE DISCRETION OF THE COURT, ONE
HALF OF SAID FINE TO BE PAID TO THE PERSON OR PERSONS GIVING
INFORMATION WHICH SHALL LEAD TO CONVICTION.  AND ANY AND EVERY MASTER,
PILOT, AND ENGINEER, OR PERSON OR PERSONS ACTING IN SUCH CAPACITY,
RESPECTIVELY, ON BOARD OF ANY BOAT OR VESSEL WHO SHALL KNOWINGLY ENGAGE
IN TOWING ANY SCOW, BOAT, OR VESSEL LOADED WITH ANY MATERIAL SPECIFIED
IN SECTION THIRTEEN OF THIS ACT TO ANY POINT OR PLACE OF DEPOSIT OR
DISCHARGE IN ANY HARBOR OR NAVIGABLE WATER, ELSEWHERE THAN WITHIN THE
LIMITS DEFINED AND PERMITTED BY THE SECRETARY OF WAR, OR WHO SHALL
WILLFULLY INJURE OR DESTROY ANY WORK OF THE UNITED STATES CONTEMPLATED
IN SECTION FOURTEEN OF THIS ACT, OR WHO SHALL WILLFULLY OBSTRUCT THE
CHANNEL OF ANY WATERWAY IN THE MANNER CONTEMPLATED IN SECTION FIFTEEN
OF THIS ACT, SHALL BE DEEMED GUILTY OF A VIOLATION OF THIS ACT, AND
SHALL UPON CONVICTION BE PUNISHED AS HEREINBEFORE PROVIDED IN THIS
TERM TO BE FIXED BY THE JUDGE BEFORE WHOM TRIED AND CONVICTED.  AND ANY
BOAT, VESSEL, SCOW, RAFT, OR OTHER CRAFT USED OR EMPLOYED IN VIOLATING
ANY OF THE PROVISIONS OF SECTIONS THIRTEEN, FOURTEEN, AND FIFTEEN OF
THIS ACT SHALL BE LIABLE FOR THE PECUNIARY PENALTIES SPECIFIED IN THIS
SAID BOAT, VESSEL, SCOW, RAFT, OR OTHER CRAFT, WHICH LATTER SUM SHALL
BE PLACED TO THE CREDIT OF THE APPROPRIATION FOR THE IMPROVEMENT OF THE
HARBOR OR WATERWAY IN WHICH THE DAMAGE OCCURRED, AND SAID BOAT, VESSEL,
SCOW, RAFT, OR OTHER CRAFT MAY BE PROCEEDED AGAINST SUMMARILY BY WAY OF
LIBEL IN ANY DISTRICT COURT OF THE UNITED STATES HAVING JURISDICTION
THEREOF." 

FN8  IT IS TO BE NOTED THAT IF SEC. 10, CL. 1, IS CONSTRUED TO COVER
OBSTRUCTIONS NOT WITHIN ANY OF THE ACT'S SPECIFIC PROHIBITIONS, AND IF
THE RESPONDENTS' PRACTICES ARE HELD TO FALL ONLY WITHIN SEC. 10, CL. 1,
THEN THE RELIEF GRANTED BY THE DISTRICT COURT WOULD NOT IN ANY EVENT BE
PROPER, SINCE ITS DECREE REQUIRED ONLY THE APPROVAL OF THE CHIEF OF
ENGINEERS OF THE DEPARTMENT OF THE ARMY.   155 F. SUPP. 442, 453. 

FN9  THE LETTERS ARE REPRINTED IN S. REP. NO. 224, 50TH CONG., 1ST
SESS. 

FN10  H.R. 2007, 49TH CONG., 1ST SESS.; S. 27, 50TH CONG., 1ST SESS.;
S. REP. NO. 224, 50TH CONG., 1ST SESS.; H.R. REP. NO. 2760, 50TH CONG.,
1ST SESS.; S. 88 AND H.R. 394, 51ST CONG., 1ST SESS.; H.R. REP. NO.
1635, 51ST CONG., 1ST SESS.; H.R. REP. NO. 477, 51ST CONG., 1ST SESS. 

FN11  19 CONG. REC. 2338, 21 CONG. REC. 1319. 

FN12  26 STAT. 426. 

FN13  21 CONG. REC. 8607. 

FN14  21 CONG. REC. 8684. 

FN15  21 CONG. REC. 8608, 8691. 

FN16  21 CONG. REC. 8685. 

FN17  21 CONG. REC. 9558. 

FN18  26 STAT. 454. 

FN19  THE SCANTY LEGISLATIVE HISTORY IN CONNECTION WITH THE EDMUNDS
AMENDMENT DOES NOT MILITATE AGAINST THIS VIEW.  IT WAS REPORTED FROM
THE SENATE JUDICIARY COMMITTEE WITH NO EXPLANATION THREE DAYS BEFORE
THE FLOOR CONSIDERATION OF THE APPROPRIATION BILL.  SEE 21 CONG.  REV.
8603.  IT WAS FIRST DISCUSSED IN THE CONTEXT OF ITS EFFECT ON THE
PROBLEM OF BRIDGES AND ITS RELATION TO THE PROVISIONS ALREADY IN THE
APPROPRIATION BILL DEALING WITH THE SECRETARY OF WAR'S POWER OVER
BRIDGES.   ID., 8603-8605.  SUBSEQUENT DISCUSSION CENTERED ON THE
MEANING OF THE TERM "NOT AFFIRMATIVELY AUTHORIZED BY LAW."  ID., 8607. 

TWO ISOLATED STATEMENTS WHICH MIGHT BE READ TO ATTRIBUTE A CATCH-ALL
MEANING TO "ANY OBSTRUCTION" ARE INCONCLUSIVE.  SENATOR EDMUNDS
REFERRED TO AN EXAMPLE WHICH HAD BEEN BROUGHT TO THE JUDICIARY
COMMITTEE'S ATTENTION, INVOLVING A RAILROAD COMPANY WHICH HAD BEEN
TUMBLING ROCKS INTO A NAVIGABLE RIVER.  IBID.  HOWEVER, IT SEEMS THAT
EVEN THE SPECIFIC "REFUSE" PROVISIONS OF THE DOLPH BILL WOULD HAVE
COVERED SUCH A PRACTICE, AND IN ANY EVENT, DISCUSSION OF THE EDMUNDS
AMENDMENT OUT OF THE CONTEXT OF THE DOLPH BILL CAN HARDLY BE
SIGNIFICANT AS TO THE SCOPE OF THE "ANY OBSTRUCTION" CLAUSE WITH
RELATION TO THE DOLPH BILL.  SENATOR CARLISLE REFERRED TO THE EDMUNDS
AMENDMENT AS COVERING NOT ONLY BRIDGES, BUT "ALL OBSTRUCTIONS OF EVERY
KIND WHATSOEVER."  ID., 8689.  APART FROM THE FACT THAT THIS STATEMENT
WAS MADE PRIOR TO THE ADAPTATION OF THE EDMUNDS AMENDMENT FOR PURPOSES
OF INCORPORATION INTO THE DOLPH BILL, SENATOR CARLISLE'S OWN SUBSEQUENT
PROPOSAL TO ELIMINATE THE EDMUNDS AMENDMENT BUT TO INCORPORATE ITS
PROVISIONS FOR JUDICIAL PROCEEDINGS INTO THE SECTION OF THE BILL
DEALING WITH BRIDGES, THEREBY "HARMONIZING" THE TWO PROVISIONS, IBID.,
CASTS GRAVE DOUBT ON WHETHER THE SENATOR HIMSELF BELIEVED THAT THE
EDMUNDS AMENDMENT COVERED ANY OBSTRUCTIONS OTHER THAN THOSE CREATED BY
BRIDGES. 

FN20  THE COURT ASSERTS THAT A CONTRARY CONSTRUCTION OF SEC. 10 OF
THE 1890 ACT WAS ESTABLISHED BY UNITED STATES V. RIO GRANDE IRRIGATION
CO., 174 U.S. 690.  THE DEFENDANT THERE ATTEMPTED TO BUILD A DAM ACROSS
THE RIO GRANDE RIVER IN NEW MEXICO.  THE BUILDING OF DAMS WAS
SPECIFICALLY PROHIBITED BY SEC. 7 OF THE 1890 ACT.  THE DEFENDANT,
HOWEVER, CONTENDED THAT THE ACT DID NOT APPLY BECAUSE THE RIO GRANDE
WAS NONNAVIGABLE AT THE POINT WHERE THE DAM WAS TO BE BUILT.  THE VERY
PASSAGE OF WHICH THE COURT QUOTES ONLY A PART DEALS SIMPLY WITH THAT
CONTENTION: 

"IT IS URGED THAT THE TRUE CONSTRUCTION OF THIS ACT LIMITS ITS
APPLICABILITY TO OBSTRUCTIONS IN THE NAVIGABLE PORTION OF A NAVIGABLE
STREAM, AND THAT AS IT APPEARS THAT ALTHOUGH THE RIO GRANDE MAY BE
NAVIGABLE FOR A CERTAIN DISTANCE ABOVE ITS MOUTH, IT IS NOT NAVIGABLE
IN THE TERRITORY OF NEW MEXICO, THIS STATUTE HAS NO APPLICABILITY.  THE
LANGUAGE IS GENERAL, AND MUST BE GIVEN FULL SCOPE.  IT IS NOT A
PROHIBITION OF ANY OBSTRUCTION TO THE NAVIGATION, BUT ANY OBSTRUCTION
TO THE NAVIGABLE CAPACITY, AND ANYTHING, WHEREVER DONE OR HOWEVER DONE,
WITHIN THE LIMITS OF THE JURISDICTION OF THE UNITED STATES WHICH TENDS
TO DESTROY THE NAVIGABLE CAPACITY OF ONE OF THE NAVIGABLE WATERS OF THE
UNITED STATES, IS WITHIN THE TERMS OF THE PROHIBITION  ...  .  IT WOULD
BE TO IMPROPERLY IGNORE THE SCOPE OF THIS LANGUAGE TO LIMIT IT TO THE
ACTS DONE WITHIN THE VERY LIMITS OF NAVIGATION OF A NAVIGABLE STREAM." 
ID., AT 708. 

THE COURT WAS OBVIOUSLY NOT REMOTELY CONCERNED WITH THE ISSUE IN THE
PRESENT CASE, I.E., WHETHER THE FIRST CLAUSE OF SEC. 10 COVERS
OBSTRUCTIONS NOT ENUMERATED IN THE REMAINDER OF THE ACT, SINCE THE DAM
THERE INVOLVED WAS SPECIFICALLY COVERED BY SEC. 7.    FN21  29 STAT.
234. 

FN22  H.R. DOC. NO. 293, 54TH CONG., 2D SESS. 

FN23  32 CONG. REC. 2296-2297, 2923. 

FN24  THE IDENTITY OF THE NUMBERS OF THE RESPECTIVE SECTIONS IN THE
NEW AND OLD ACTS IS PURELY COINCIDENTAL. 

FN25  THIS CONSTRUCTION OF THE FIRST CLAUSE OF SEC. 10 SEEMS TO HAVE
BEEN ASSUMED, THOUGH NOT EXPRESSLY PASSED ON, BY THIS COURT IN
WISCONSIN V. ILLINOIS, 278 U.S. 367, 412-413.  THE PHRASE "NOT
AFFIRMATIVELY AUTHORIZED BY LAW" WAS CHANGED TO "NOT AFFIRMATIVELY
AUTHORIZED BY CONGRESS" SIMPLY TO OVERCOME THE HOLDING OF A LOWER COURT
THAT AUTHORIZATION BY STATE LAW WAS SUFFICIENT.  UNITED STATES V.
BELLINGHAM BAY BOOM CO., 72 F. 585 (C.C.D. WASH. 1896), AFF'D, 81 F.
658 (C.C.A. 9TH CIR. 1897), REV'D ON OTHER GROUNDS, 176 U.S. 211
(1900).  SEE SANITARY DISTRICT V. UNITED STATES, 266 U.S. 405, 429;
WISCONSIN V. ILLINOIS, SUPRA, AT 412.  SINCE THE PROHIBITION OF THE
CLAUSE COVERS BOTH THOSE OBSTRUCTIONS WHICH REQUIRE CONGRESSIONAL
APPROVAL AND THOSE WHICH REQUIRE ONLY APPROVAL OF THE SECRETARY OF WAR,
THE PHRASE "AUTHORIZED BY CONGRESS" MUST BE READ TO MEAN AUTHORIZED BY
CONGRESS OR THE AGENCY DESIGNATED BY IT.  WISCONSIN V. ILLINOIS, SUPRA,
AT 412-413. 

FN26  WHILE A REFUSE PROVISION WAS CONTAINED IN THE DOLPH BILL WHICH
BECAME THE 1890 ACT, THE LIQUID-SEWAGE EXCEPTION WAS FIRST ADDED IN
1894, 28 STAT. 363, AND CARRIED FORWARD INTO THE 1899 ACT.  THERE WAS
NO DISCUSSION IN THE REPORTS OR DEBATES OF THE MEANING OF THE
EXCEPTION. 

FN27  IN 1900, ONLY 4% OF THE URBAN POPULATION HAVING SEWAGE
FACILITIES PROVIDED ANY TREATMENT AT ALL FOR DOMESTIC AND TRADE
WASTES.  MODERN SEWAGE DISPOSAL (1938), P. 13 (FEDERATION OF SEWAGE
WORKS ASSNS., LANGDON PEARSE, EDITOR, ANNIVERSARY BOOK, LANCASTER
PRESS, INC.). 

FN28 BRIEF FOR APPELLANT, PP. 5-14.  IT IS TO BE NOTED THAT THE
SANITARY DISTRICT DID NOT CHALLENGE THE PROPRIETY OF INJUNCTIVE RELIEF
IN THE DISTRICT COURT, AND INDEED INVITED IT TO AVOID CRIMINAL
PENALTIES IN TESTING ITS RIGHT TO MAINTAIN THE CHANNEL AND DIVERT THE
COMPLAINED-OF AMOUNT OF WATER.  266 U.S., AT 431-432; RECORD ON APPEAL,
VOL. VIII, PP. 129, 151-152; BRIEF FOR APPELLEE, PP. 66-67, 284-285. 

FN29  BRIEF FOR APPELLEE, PP. 123-158. 
..END :




SCHAFFER V. UNITED STATES 362 U.S. 511 


NO. 111.  ARGUED MARCH 24, 1960 - DECIDED MAY 16, 1960* - 266 F.2D 435,
AFFIRMED. 

*TOGETHER WITH NO. 122, KARP ET AL. V. UNITED STATES, ALSO ON
CERTIORARI TO THE SAME COURT. 


UNDER 18 U.S.C. SEC. 2314, THREE PERSONS NAMED STRACUZZA, WHO
ADMITTEDLY WERE THE COMMON CENTER OF A SCHEME TO TRANSPORT STOLEN
GOODS, WERE INDICTED IN A SINGLE INDICTMENT WITH THE FOUR PETITIONERS
FOR TRANSPORTING IN INTERSTATE COMMERCE GOODS KNOWN TO HAVE BEEN STOLEN
AND HAVING A VALUE IN EXCESS OF $5,000.  COUNT 1 CHARGED TWO OF THE
PETITIONERS AND THE STRACUZZAS WITH TRANSPORTING STOLEN GOODS FROM NEW
YORK TO PENNSYLVANIA; COUNT 2 CHARGED ANOTHER PETITIONER AND THE
STRACUZZAS WITH TRANSPORTING STOLEN GOODS FROM NEW YORK TO WEST
VIRGINIA; COUNT 3 CHARGED ANOTHER PETITIONER AND THE STRACUZZAS WITH
TRANSPORTING STOLEN GOODS FROM NEW YORK TO MASSACHUSETTS; AND COUNT 4
CHARGED ALL THE DEFENDANTS WITH A CONSPIRACY TO COMMIT THE SUBSTANTIVE
OFFENSES.  ON MOTION OF PETITIONERS FOR ACQUITTAL AT THE CLOSE OF THE
GOVERNMENT'S CASE, THE COURT DISMISSED THE CONSPIRACY COUNT FOR FAILURE
OF PROOF; BUT IT FOUND THAT NO PREJUDICE WOULD RESULT FROM A JOINT
TRIAL AND SUBMITTED THE SUBSTANTIVE COUNTS TO THE JURY UNDER CAREFUL
DETAILED INSTRUCTIONS.  PETITIONERS WERE CONVICTED AND THE COURT OF
APPEALS AFFIRMED, FINDING THAT NO PREJUDICE RESULTED FROM THE JOINT
TRIAL.  HELD:  THE JUDGMENTS ARE AFFIRMED.  PP. 512-518. 

(A)  THE JOINDER OF ALL THE DEFENDANTS IN THE ORIGINAL INDICTMENT WAS
PROPER UNDER RULE 8(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE; EVEN
AFTER DISMISSAL OF THE CONSPIRACY COUNT, SEVERANCE WAS NOT REQUIRED
UNDER RULE 14 UNLESS THE JOINDER PREJUDICED THE DEFENDANTS; AND, ON THE
RECORD, THIS COURT CANNOT SAY THAT BOTH THE TRIAL COURT AND THE COURT
OF APPEALS ERRED IN FINDING THAT PETITIONERS WERE NOT PREJUDICED BY A
JOINT TRIAL.  PP. 514-517. 

(B)  THOUGH EACH INDIVIDUAL SHIPMENT AMOUNTED TO LESS THAN $5,000,
THE TRIAL COURT DID NOT ERR IN PERMITTING THE SERIES OF RELATED
SHIPMENTS TO EACH PETITIONER TO BE AGGREGATED IN ORDER TO MEET THE
STATUTORY MINIMUM OF $5,000, SINCE 18 U.S.C. SEC. 2311 PROVIDES THAT
"THE AGGREGATE VALUE OF ALL GOODS  ...  REFERRED TO IN A SINGLE
INDICTMENT SHALL CONSTITUTE THE VALUE THEREOF."  PP. 517-518. 

(C)  THE PROSECUTOR'S REMARKS IN HIS SUMMATION TO THE JURY WERE NOT
PREJUDICIAL.  P. 518. 

SCHAFFER ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

INVOLVED HERE ARE QUESTIONS CONCERNING JOINDER OF DEFENDANTS UNDER
RULE 8(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, (FN1) AND WHETHER
SHIPMENTS OF STOLEN GOODS IN INTERSTATE COMMERCE MAY BE AGGREGATED AS
TO VALUE IN ORDER TO MEET THE STATUTORY MINIMUM OF $5,000, UNDER 18
U.S.C. SEC. 2314.  (FN2) 

THE INDICTMENT CHARGED TRANSPORTATION IN INTERSTATE COMMERCE OF GOODS
KNOWN TO HAVE BEEN STOLEN AND HAVING A VALUE IN EXCESS OF $5,000.  IT
CONTAINED THREE SUBSTANTIVE COUNTS.  COUNT 1 CHARGED THE TWO SCHAFFERS
(PETITIONERS IN NO. 111) AND THE THREE STRACUZZAS (DEFENDANTS BELOW,
WHO EITHER PLEADED GUILTY OR HAD THE CHARGES AGAINST THEM NOLLE PROSSED
AT TRIAL) WITH TRANSPORTING STOLEN LADIES' AND CHILDREN'S WEARING
APPAREL FROM NEW YORK TO PENNSYLVANIA.  COUNT 2 CHARGED PETITIONER
MARCO AND THE STRACUZZAS WITH A SIMILAR MOVEMENT OF STOLEN GOODS FROM
NEW YORK TO WEST VIRGINIA.  COUNT 3 CHARGED PETITIONER KARP AND THE
STRACUZZAS WITH LIKE SHIPMENTS FROM NEW YORK TO MASSACHUSETTS.  THE
FOURTH AND FINAL COUNT OF THE INDICTMENT CHARGED ALL OF THESE PARTIES
WITH A CONSPIRACY TO COMMIT THE SUBSTANTIVE OFFENSES CHARGED IN THE
FIRST THREE COUNTS.  THE PETITIONERS HERE WERE TRIED ON THE INDICTMENT
SIMULTANEOUSLY IN A SINGLE TRIAL.  ON MOTION OF PETITIONERS FOR
ACQUITTAL AT THE CLOSE OF THE GOVERNMENT'S CASE, THE COURT DISMISSED
THE CONSPIRACY COUNT FOR FAILURE OF PROOF.  THIS MOTION WAS DENIED,
HOWEVER, AS TO THE SUBSTANTIVE COUNTS, THE COURT FINDING THAT NO
PREJUDICE WOULD RESULT FROM THE JOINT TRIAL.  UPON SUBMISSION OF THE
SUBSTANTIVE COUNTS TO THE JURY ON A DETAILED CHARGE, EACH PETITIONER
WAS FOUND GUILTY AND THEREAFTER FINED AND SENTENCED TO PRISON.  THE
COURT OF APPEALS AFFIRMED THE CONVICTIONS, LIKEWISE FINDING THAT NO
PREJUDICE EXISTED BY REASON OF THE JOINT TRIAL.  266 F.2D 435.  WE
GRANTED CERTIORARI.  361 U.S. 809. 

THE ALLEGATIONS OF THE INDICTMENT HAVING MET THE EXPLICIT PROVISIONS
OF RULE 8(B) AS TO JOINDER OF DEFENDANTS, WE CANNOT FIND CLEARLY
ERRONEOUS THE FINDINGS OF THE TRIAL COURT AND THE COURT OF APPEALS THAT
NO PREJUDICE RESULTED FROM THE JOINT TRIAL.  AS TO THE REQUIREMENTS OF
VALUE, WE HOLD THAT THE SHIPMENTS TO A SINGLE DEFENDANT MAY BE
AGGREGATED.  THE JUDGMENTS ARE THEREFORE AFFIRMED. 

WE FIRST CONSIDER THE QUESTION OF JOINDER OF DEFENDANTS UNDER RULE
8(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  IT IS CLEAR THAT THE
INITIAL JOINDER OF THE PETITIONERS WAS PERMISSIBLE UNDER THAT RULE,
WHICH ALLOWS THE JOINDER OF DEFENDANTS "IN THE SAME INDICTMENT  ...  IF
THEY ARE ALLEGED TO HAVE PARTICIPATED IN THE SAME ACT OR TRANSACTION OR
IN THE SAME SERIES OF ACTS OR TRANSACTIONS CONSTITUTING AN OFFENSE OR
OFFENSES."  IT CANNOT BE DENIED THAT THE PETITIONERS WERE SO CHARGED IN
THE INDICTMENT.  THE PROBLEM REMAINING IS WHETHER, AFTER DISMISSAL OF
THE CONSPIRACY COUNT BEFORE SUBMISSION OF THE CASES TO THE JURY, A
SEVERANCE SHOULD HAVE BEEN ORDERED UNDER RULE 14 (FN3) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE.  THIS RULE REQUIRES A SEPARATE TRIAL IF
"IT APPEARS THAT A DEFENDANT OR THE GOVERNMENT IS PREJUDICED BY A
JOINDER OF OFFENSES OR OF DEFENDANTS IN AN INDICTMENT OR INFORMATION OR
BY SUCH JOINDER FOR TRIAL TOGETHER  ...  ."  UNDER THE CIRCUMSTANCES
HERE, WE THINK THERE WAS NO SUCH PREJUDICE. 

IT IS ADMITTED THAT THE THREE STRACUZZAS WERE THE COMMON CENTER OF
THE SCHEME TO TRANSPORT THE STOLEN GOODS.  THE FOUR PETITIONERS HERE
PARTIICIPATED IN SOME STEPS OF THE TRANSACTIONS IN THE STOLEN GOODS,
ALTHOUGH EACH WAS INVOLVED WITH SEPARATE INTERSTATE SHIPMENTS.  THE
SEPARATE SUBSTANTIVE CHARGES OF THE INDICTMENT EMPLOYED ALMOST
IDENTICAL LANGUAGE AND ALLEGED VIOLATIONS OF THE SAME CRIMINAL STATUTE
DURING THE SAME PERIOD AND IN THE SAME MANNER.  THIS MADE PROOF OF THE
OVER-ALL OPERATION OF THE SCHEME COMPETENT AS TO ALL COUNTS.  THE
VARIATIONS IN THE PROOF RELATED TO THE SPECIFIC SHIPMENTS PROVEN
AGAINST EACH PETITIONER.  THIS PROOF WAS RELATED TO EACH PETITIONER
SEPARATELY AND PROVEN AS TO EACH BY DIFFERENT WITNESSES.  IT INCLUDED
ENTIRELY SEPARATE INVOICES AND OTHER EXHIBITS, ALL OF WHICH WERE FIRST
CLEARLY IDENTIFIED AS APPLYING ONLY TO A SPECIFIC PETITIONER AND WERE
SO RECEIVED AND SHOWN TO THE JURY UNDER PAINSTAKING INSTRUCTIONS TO
THAT EFFECT.  IN SHORT, THE PROOF WAS CAREFULLY COMPARTMENTALIZED AS TO
EACH PETITIONER.  THE PROPRIETY OF THE JOINDER PRIOR TO THE FAILURE OF
PROOF OF CONSPIRACY WAS NOT ASSAILED.  (FN4)  WHEN THE GOVERNMENT
RESTED, HOWEVER, THE PETITIONERS FILED THEIR MOTION FOR DISMISSAL AND
IT WAS SUSTAINED AS TO THE CONSPIRACY COUNT.  THE PETITIONERS THEN
PRESSED FOR ACQUITTAL ON THE REMAINING COUNTS, AND THE COURT DECIDED
THAT THE EVIDENCE WAS SUFFICIENT ON THE SUBSTANTIVE COUNTS.  THE CASE
WAS SUBMITTED TO THE JURY ON EACH OF THESE COUNTS, AND UNDER A CHARGE
WHICH WAS CHARACTERIZED BY PETITIONERS' COUNSEL AS BEING "EXTREMELY
FAIR."  THIS CHARGE METICULOUSLY SET OUT SEPARATELY THE EVIDENCE AS TO
EACH OF THE PETITIONERS AND ADMONISHED THE JURY THAT THEY WERE "NOT TO
TAKE INTO CONSIDERATION ANY PROOF AGAINST ONE DEFENDANT AND APPLY IT BY
INFERENCE OR OTHERWISE TO ANY OTHER DEFENDANT." 

PETITIONERS CONTEND THAT PREJUDICE WOULD NEVERTHELESS BE IMPLICIT IN
A CONTINUATION OF THE JOINT TRIAL AFTER DISMISSAL OF THE CONSPIRACY
COUNT.  THEY SAY THAT THE RESULTING PREJUDICE COULD NOT BE CURED BY ANY
CAUTIONARY INSTRUCTIONS, AND THAT THEREFORE THE TRIAL JUDGE WAS LEFT
WITH NO DISCRETION.  PETITIONERS OVERLOOK, HOWEVER, THAT THE JOINDER
WAS AUTHORIZED UNDER RULE 8(B) AND THAT SUBSEQUENT SEVERANCE WAS
CONTROLLED BY RULE 14, WHICH PROVIDES FOR SEPARATE TRIALS WHERE "IT
APPEARS THAT A DEFENDANT  ...  IS PREJUDICED  ...  BY SUCH JOINDER FOR
TRIAL  ...  ."  IT APPEARS THAT NOT ONLY WAS NO PREJUDICE SHOWN, BUT
BOTH THE TRIAL COURT AND THE COURT OF APPEALS AFFIRMATIVELY FOUND THAT
NONE WAS PRESENT.  WE CANNOT SAY TO THE CONTRARY ON THIS RECORD.  NOR
CAN WE FASHION A HARD-AND-FAST FORMULA THAT, WHEN A CONSPIRACY COUNT
FAILS, JOINDER IS ERROR AS A MATTER OF LAW.  WE DO EMPHASIZE, HOWEVER,
THAT, IN SUCH A SITUATION, THE TRIAL JUDGE HAS A CONTINUING DUTY AT ALL
STAGES OF THE TRIAL TO GRANT A SEVERANCE IF PREJUDICE DOES APPEAR.  AND
WHERE, AS HERE, THE CHARGE WHICH ORIGINALLY JUSTIFIED JOINDER TURNS OUT
TO LACK THE SUPPORT OF SUFFICIENT EVIDENCE, A TRIAL JUDGE SHOULD BE
PARTICULARLY SENSITIVE TO THE POSSIBILITY OF SUCH PREJUDICE.  HOWEVER,
THE PETITIONERS HERE NOT ONLY FAILED TO SHOW ANY PREJUDICE THAT WOULD
CALL RULE 14 INTO OPERATION BUT EVEN FAILED TO REQUEST A NEW TRIAL. 
INSTEAD THEY RELIED ENTIRELY ON THEIR MOTIONS FOR ACQUITTAL.  MOREOVER,
THE JUDGE WAS ACUTELY AWARE OF THE POSSIBILITY OF PREJUDICE AND WAS
STRICT IN HIS CHARGE - NOT ONLY AS TO THE TESTIMONY THE JURY WAS NOT TO
CONSIDER, BUT ALSO AS TO THAT EVIDENCE WHICH WAS AVAILABLE IN THE
CONSIDERATION OF THE GUILT OF EACH PETITIONER SEPARATELY UNDER THE
RESPECTIVE SUBSTANTIVE COUNTS.  THE TERMS OF RULE 8(B) HAVING BEEN MET
AND NO PREJUDICE UNDER RULE 14 HAVING BEEN SHOWN, THERE WAS NO
MISJOINDER. 

THIS CASE IS NOT LIKE UNITED STATES V. DIETRICH, (FN5) WHERE A SINGLE
COUNT INDICTMENT AGAINST TWO DEFENDANTS CHARGED ONLY A SINGLE
CONSPIRACY OFFENSE, OR MCELROY V. UNITED STATES, (FN6) WHERE NO COUNT
LINKED ALL THE DEFENDANTS AND ALL THE OFFENSES.  NEITHER IS KOTTEAKOS
V. UNITED STATES, (FN7) ON WHICH THE PETITIONERS PLACE THEIR CHIEF
RELIANCE, APPOSITE.  THAT CASE TURNED ON THE HARMLESS-ERROR RULE, AND
ITS APPLICATION TO A SERIOUS VARIANCE BETWEEN THE INDICTMENT AND THE
PROOF.   THERE THE COURT FOUND "IT HIGHLY PROBABLE THAT THE ERROR HAD
SUBSTANTIAL AND INJURIOUS EFFECT."  328 U.S., AT 776.  THE DISSENT
AGREED THAT THE TEST OF INJURY RESULTING FROM JOINDER "DEPENDS ON THE
SPECIAL CIRCUMSTANCES OF EACH CASE," ID., AT 777; BUT IT REASONED THAT
THE POSSIBILITY WAS "NON-EXISTENT" THAT EVIDENCE RELATING TO ONE
DEFENDANT WOULD BE USED TO CONVICT ANOTHER, AND DECLARED THAT THE
"DANGERS WHICH PETITIONERS CONJURE UP ARE ABSTRACT ONES."  ID., AT
778.  THE HARMLESS-ERROR RULE, WHICH WAS THE CENTRAL ISSUE IN
KOTTEAKOS, IS NOT EVEN REACHED IN THE INSTANT CASE, SINCE HERE THE
JOINDER WAS PROPER UNDER RULE 8(B) AND NO ERROR WAS SHOWN. 

PETITIONERS ALSO CONTEND THAT, SINCE THE INDIVIDUAL SHIPMENTS WITH
WHICH THEY WERE CONNECTED AMOUNTED TO LESS THAN $5,000 EACH, THE
REQUIREMENTS OF THE STATUTE AS TO VALUE WERE NOT PRESENT.  HOWEVER, IT
APPEARED AT THE TRIAL THAT THE TOTAL MERCHANDISE SHIPPED TO EACH
PETITIONER DURING THE PERIOD CHARGED IN THE SEVERAL COUNTS WAS OVER
$5,000, EVEN THOUGH EACH INDIVIDUAL SHIPMENT WAS LESS.   THE TRIAL
COURT PERMITTED THE AGGREGATION OF THE VALUE OF THESE SHIPMENTS TO MEET
THE STATUTORY LIMIT, (FN8) AND IT IS THIS THAT IS CLAIMED TO BE ERROR. 
A SENSIBLE READING OF THE STATUTE PROPERLY ATTRIBUTES TO CONGRESS THE
VIEW THAT WHERE THE SHIPMENTS HAVE ENOUGH RELATIONSHIP SO THAT THEY MAY
PROPERLY BE CHARGED AS A SINGLE OFFENSE, THEIR VALUE MAY BE
AGGREGATED.  THE ACT DEFINES "VALUE" IN TERMS OF THAT AGGREGATE.  (FN9)
THE LEGISLATIVE HISTORY MAKES CLEAR THAT THE VALUE MAY BE COMPUTED ON
A "SERIES OF TRANSACTIONS."  (FN10)  IT SEEMS PLAIN THAT THE STRACUZZAS
AND EACH OF THE PETITIONERS WERE ENGAGED IN A SERIES OF TRANSACTIONS,
AND THEREFORE THERE IS NO ERROR ON THAT PHASE OF THE CASE.  (FN11) 

PETITIONERS IN NO. 122 FURTHER CONTEND THAT CERTAIN OF THE
PROSECUTOR'S REMARKS IN HIS SUMMATION TO THE JURY WERE IMPROPER AND
PREJUDICIAL.  WE AGREE WITH THE TREATMENT OF THIS ISSUE BY THE COURT OF
APPEALS, AND SEE NO NEED FOR FURTHER ELABORATION. 

THE JUDGMENTS ARE THEREFORE AFFIRMED. 

FN1  RULE 8(B) PROVIDES: 

"TWO OR MORE DEFENDANTS MAY BE CHARGED IN THE SAME INDICTMENT OR
INFORMATION IF THEY ARE ALLEGED TO HAVE PARTICIPATED IN THE SAME ACT OR
TRANSACTION OR IN THE SAME SERIES OF ACTS OR TRANSACTIONS CONSTITUTING
AN OFFENSE OR OFFENSES.  SUCH DEFENDANTS MAY BE CHARGED IN ONE OR MORE
COUNTS TOGETHER OR SEPARATELY AND ALL OF THE DEFENDANTS NEED NOT BE
CHARGED IN EACH COUNT." 

FN2  18 U.S.C. SEC. 2314 PROVIDES IN RELEVANT PART: 

"WHOEVER TRANSPORTS IN INTERSTATE OR FOREIGN COMMERCE ANY GOODS,
WARES, MERCHANDISE, SECURITIES OR MONEY, OF THE VALUE OF $5,000 OR
MORE, KNOWING THE SAME TO HAVE BEEN STOLEN, CONVERTED OR TAKEN BY
FRAUD; ...  . 

"SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH." 

18 U.S.C. SEC. 2311 PROVIDES SO FAR AS MATERIAL HERE: 

"'VALUE' MEANS THE FACE, PAR, OR MARKET VALUE, WHICHEVER IS THE
GREATEST, AND THE AGGREGATE VALUE OF ALL GOODS, WARES, AND MERCHANDISE,
SECURITIES, AND MONEY REFERRED TO IN A SINGLE INDICTMENT SHALL
CONSTITUTE THE VALUE THEREOF." 

FN3  RULE 14 PROVIDES: 

"IF IT APPEARS THAT A DEFENDANT OR THE GOVERNMENT IS PREJUDICED BY A
JOINDER OF OFFENSES OR OF DEFENDANTS IN AN INDICTMENT OR INFORMATION OR
BY SUCH JOINDER FOR TRIAL TOGETHER, THE COURT MAY ORDER AN ELECTION OR
SEPARATE TRIALS OF COUNTS, GRANT A SEVERANCE OF DEFENDANTS OR PROVIDE
WHATEVER OTHER RELIEF JUSTICE REQUIRES." 

FN4  A MOTION OF PETITIONER KARP FOR A SEVERANCE ON GROUNDS OTHER
THAN THOSE TENDERED HERE WAS DENIED.  158 F. SUPP. 522. 

FN5  126 F. 664. 

FN6  164 U.S. 76 (1896). 

FN7  328 U.S. 750 (1946). 

FN8  SEE NOTE 2, SUPRA. 

FN9  SEE NOTE 2, SUPRA. 

FN10  H.R. REP. NO. 1462, 73D CONG., 2D SESS., P. 2; H.R. CONF. REP.
NO. 1599, 73D CONG., 2D SESS., P. 3. 

FN11  THIS IS NOT A CASE LIKE ANDREWS V. UNITED STATES, 108 F.2D 511,
WHERE AGGREGATION OF SHIPMENTS TO A NUMBER OF INDIVIDUALS WAS JUSTIFIED
ON THE THEORY OF A COMMON DESIGN AMONG THE RECIPIENTS.  THE INSTANT
CASE, UNLIKE ANDREWS, INVOLVES AGGREGATION OF A NUMBER OF SHIPMENTS TO
A SINGLE DEFENDANT, AND THEREFORE IT WAS QUITE UNNECESSARY TO JUSTIFY
AGGREGATION ON THE THEORY OF COMMON DESIGN. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

THE INDICTMENT IN THESE CASES CHARGED VIOLATIONS OF 18 U.S.C. SEC.
2314 FOR TRANSPORTING IN INTERSTATE COMMERCE GOODS KNOWN TO HAVE BEEN
STOLEN (FN1) AND HAVING A VALUE IN EXCESS OF $5,000.  (FN2) 

COUNTS 1, 2, AND 3 WERE SUBSTANTIVE COUNTS.  COUNT 1 CHARGED THE TWO
SCHAFFERS, PETITIONERS IN NO. 111, TOGETHER WITH THE THREE STRACUZZAS,
WITH TRANSPORTING STOLEN LADIES' AND CHILDREN'S WEARING APPAREL FROM
NEW YORK TO PENNSYLVANIA BETWEEN MAY 15, 1953, AND JULY 27, 1953. 

COUNT 2 CHARGED MARCO, ONE OF THE PETITIONERS IN NO. 122, AND THE
STRACUZZAS WITH A SIMILAR MOVEMENT FROM NEW YORK TO WEST VIRGINIA FROM
JUNE 11, 1953, TO JULY 27, 1953. 

COUNT 3 CHARGED KARP, THE OTHER PETITIONER IN NO. 122, WITH LIKE
SHIPMENTS FROM NEW YORK TO MASSACHUSETTS FROM MAY 21, 1953, TO JULY 27,
1953. 

COUNT 4 CHARGED ALL THE PARTIES WITH A CONSPIRACY TO COMMIT THE
SUBSTANTIVE OFFENSES. 

TWO OF THE STRACUZZAS (WHO SEEMED TO BE THE BRAINS BEHIND THE VARIOUS
ILLEGAL TRANSACTIONS) PLEADED GUILTY AND RECEIVED SUSPENDED SENTENCES. 
THE INDICTMENT AGAINST THE THIRD STRACUZZA WAS DISPOSED OF NOL.  PROS. 
THE FOUR PRESENT PETITIONERS PLEADED NOT GUILTY AND WERE TRIED
SIMULTANEOUSLY IN A SINGLE TRIAL, (FN3) ONE OF THE STRACUZZAS BEING THE
PRINCIPAL WITNESS FOR THE GOVERNMENT.    AT THE CLOSE OF THE
GOVERNMENT'S CASE THE COURT DISMISSED THE CONSPIRACY COUNT (FN4) FOR
FAILURE OF PROOF.  INDEED, IT DOES NOT APPEAR EVEN ARGUABLE THAT THERE
WAS EVIDENCE LINKING ALL PETITIONERS WITH EACH OTHER IN ONE
CONSPIRACY.  OVER OBJECTION THE COURT CONTINUED THE JOINT TRIAL ON THE
REMAINING SUBSTANTIVE COUNTS, INSTRUCTING THE JURY THAT THE EVIDENCE
AGAINST EACH DEFENDANT WAS TO BE CONSIDERED SEPARATELY, THE PROOF
AGAINST ONE NOT TO BE USED AGAINST ANOTHER.    IT IS CLEAR THAT BUT FOR
THE CONSPIRACY COUNT THE JOINDER OF THESE PETITIONERS FOR SIMILAR BUT
UNRELATED CRIMES WOULD HAVE BEEN IN ERROR.  RULE 8(B) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE ALLOWS JOINDER OF DEFENDANTS IN THE SAME
INDICTMENT "IF THEY ARE ALLEGED TO HAVE PARTICIPATED IN THE SAME ACT OR
TRANSACTION OR IN THE SAME SERIES OF ACTS OR TRANSACTIONS CONSTITUTING
AN OFFENSE OR OFFENSES."  (FN5) 

THE COURT OF APPEALS, WHILE CONCEDING THAT IT WOULD HAVE BEEN CLEARLY
ERRONEOUS TO TRY PETITIONERS TOGETHER WERE IT NOT FOR THE CONSPIRACY
COUNT, CONCLUDED THAT NO SHOWING OF PREJUDICE HAD BEEN ESTABLISHED AND
THAT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING
SEPARATE TRIALS. 

I TAKE A DIFFERENT VIEW.  I BELIEVE THAT ONCE THE CONSPIRACY COUNT
WAS DISMISSED, THE COURT HAD BEFORE IT THE SAME PROBLEM AS WOULD BE
PRESENTED IF THE PROSECUTION HAD SOUGHT TO TRY BEFORE A SINGLE JURY
SEPARATE INDICTMENTS AGAINST DEFENDANTS WHO HAD BEEN CHARGED WITH LIKE
CRIMES BUT WHICH WERE WHOLLY UNRELATED TO EACH OTHER. 

RULE 8(B) (FN6) CONTEMPLATES JOINDER OF DEFENDANTS IN TWO TYPES OF
SITUATIONS - FIRST, WHERE THEY PARTICIPATE JOINTLY IN ONE "ACT OR
TRANSACTION"; OR SECOND, WHERE THEY PARTICIPATE "IN THE SAME SERIES OF
ACTS OR TRANSACTIONS CONSTITUTING AN OFFENSE OR OFFENSES."  THESE FOUR
PETITIONERS DID NOT PARTICIPATE IN ONE ACT OR TRANSACTION AS EVIDENCED
BY THE FACT THAT THE PROOF OF CONSPIRACY UTTERLY FAILED.  THE OTHER
ACTS OR TRANSACTIONS CHARGED WERE NOT IN THE SAME "SERIES," WITHIN THE
MEANING OF RULE 8(B). 

MR. JUSTICE VAN DEVANTER, WHEN CIRCUIT JUDGE, IN UNITED STATES V.
DIETRICH, 126 F. 664, 670, SAID:

"MUCH CAN BE SAID IN SUPPORT OF A PRACTICE WHICH, SUBJECT TO A
DISCRETION INVESTED IN THE COURT TO ENABLE IT TO DO JUSTICE BETWEEN THE
GOVERNMENT AND THE ACCUSED, PERMITS TWO OR MORE DEFENDANTS TO BE IN
SEPARATE COUNTS OF THE SAME INDICTMENT SEVERALLY CHARGED WITH DISTINCT
AND SEVERAL OFFENSES OF THE SAME CLASS AND GRADE, AND SUBJECT TO THE
SAME PUNISHMENT, WHERE THE OFFENSES APPEAR TO HAVE BEEN COMMITTED AT
THE SAME TIME AND PLACE AND TO FORM PARTS OF THE SAME TRANSACTION. 
UNDER SUCH CIRCUMSTANCES THE PROOF IN RESPECT TO ONE OFFENSE WOULD
ALMOST NECESSARILY THROW LIGHT UPON THE OTHER OR OTHERS, AND THE
CONNECTION BETWEEN THEM WOULD FREQUENTLY BE SO CLOSE THAT IT WOULD BE
DIFFICULT OR IMPOSSIBLE TO SEPARATE THE PROOF OF ONE FROM THE PROOF OF
THE OTHER OR OTHERS." 

MCELROY V. UNITED STATES, 164 U.S. 76, DECIDED LONG BEFORE THE
PRESENT RULES, HELD IT ERROR TO CONSOLIDATE FOUR INDICTMENTS CHARGING
UNRELATED OFFENSES (ARSON AND ASSAULT WITH INTENT TO KILL) WHERE SIX
PEOPLE WERE NAMED IN THREE OF THE INDICTMENTS AND ONLY THREE OF THE SIX
IN THE REMAINING ONE.  THE COURT SAID THE QUESTION OF JOINDER OR
SEVERANCE DID NOT REST "IN MERE DISCRETION"; THAT UNDER THOSE
CIRCUMSTANCES JOINDER WAS ERROR AS A MATTER OF LAW: 

"SUCH JOINDER CANNOT BE SUSTAINED WHERE THE PARTIES ARE NOT THE SAME
AND WHERE THE OFFENCES ARE IN NOWISE PARTS OF THE SAME TRANSACTION AND
MUST DEPEND UPON EVIDENCE OF A DIFFERENT STATE OF FACTS AS TO EACH OR
SOME OF THEM.  IT CANNOT BE SAID IN SUCH CASE THAT ALL THE DEFENDANTS
MAY NOT HAVE BEEN EMBARRASSED AND PREJUDICED IN THEIR DEFENCE, OR THAT
THE ATTENTION OF THE JURY MAY NOT HAVE BEEN DISTRACTED TO THEIR INJURY
IN PASSING UPON DISTINCT AND INDEPENDENT TRANSACTIONS."  ID., AT 81. 

I THINK THIS IS THE SOUND RULE AND CONSISTENT WITH WHAT MR. JUSTICE
VAN DEVANTER SAID IN THE DIETRICH CASE.  THERE MUST SOMEHOW BE A NEXUS
BETWEEN THE SEVERAL TRANSACTIONS CHARGED AGAINST THE SEVERAL
DEFENDANTS, LEST PROOF OF DISTINCT TRANSACTIONS BLEND TO THE PREJUDICE
OF SOME DEFENDANTS.  THE EVIDENCE CONCERNING THESE PETITIONERS WAS NOT
IN ANY PROPER SENSE OF THE WORDS EVIDENCE CONCERNING "THE SAME SERIES
OF ACTS OR TRANSACTIONS" CONSTITUTING AN OFFENSE.  THE SCHAFFERS HAD
NOTHING TO DO WITH KARP'S SHIPMENTS TO MASSACHUSETTS NOR MARCO'S
SHIPMENTS TO WEST VIRGINIA; NOR DID THE LATTER TWO HAVE ANYTHING TO DO
WITH THE SCHAFFERS' SHIPMENTS TO PENNSYLVANIA.  THE ONLY POSSIBLE
CONNECTION BETWEEN THESE DISPARATE TRANSACTIONS WAS THE FACT THAT EACH
PETITIONER DEALT WITH THE STRACUZZAS, WHO WERE THE BRAINS OF THESE
DEALS.  BUT THAT WAS A HAPPENSTANCE WHICH DID NOT MAKE PETITIONERS ANY
THE LESS STRANGERS TO EACH OTHER.  THE PENNSYLVANIA, MASSACHUSETTS, AND
WEST VIRGINIA SHIPMENTS HAD NOTHING IN COMMON EXCEPT THAT THEY WERE ALL
FROM THE HOUSE OF STRACUZZA.  YET CUSTOMERS OF ONE SHOP, ENGAGED IN AN
ILLEGAL ENTERPRISE, DO NOT BECOME PARTICIPANTS "IN THE SAME SERIES OF
ACTS OR TRANSACTIONS," UNLESS SOMEHOW OR OTHER WHAT EACH DOES IS
CONNECTED UP WITH THE OTHERS OR HAS SOME RELATION TO THEM. 

IT IS SAID THAT THE JOINDER WAS PROPER IF PARTICIPATION "IN THE SAME
SERIES" OF TRANSACTIONS WAS "ALLEGED" IN THE INDICTMENT.  SUCH AN
ALLEGATION, TO BE SURE, SAVES THE INDICTMENT FROM ATTACK AT THE
PRELIMINARY STAGES.  YET ONCE IT BECOMES APPARENT DURING THE TRIAL THAT
THE DEFENDANTS HAVE NOT PARTICIPATED "IN THE SAME SERIES" OF
TRANSACTIONS, IT WOULD MAKE A MOCKERY OF RULE 8(B) TO HOLD THAT THE
ALLEGATION ALONE, NOW KNOWN TO BE FALSE, IS ENOUGH TO CONTINUE THE
JOINT TRIAL. 

THE COURT IN KOTTEAKOS V. UNITED STATES, 328 U.S. 750, 773,
DISAPPROVED THE JOINDER FOR TRIAL OF EIGHT OR MORE CONSPIRACIES RELATED
IN KIND "WHEN THE ONLY NEXUS AMONG THEM LIES IN THE FACT THAT ONE MAN
PARTICIPATED IN ALL."  GUILT WITH US REMAINS PERSONAL.  "THE DANGERS OF
TRANSFERENCE OF GUILT FROM ONE TO ANOTHER ACROSS THE LINE SEPARATING
CONSPIRACIES, SUBCONSCIOUSLY OR OTHERWISE, ARE SO GREAT," SAID THE
COURT IN THE KOTTEAKOS CASE, "THAT NO ONE REALLY CAN SAY PREJUDICE TO
SUBSTANTIAL RIGHT HAS NOT TAKEN PLACE."  ID., AT 774.  A LIKE DANGER OF
SUCH TRANSFERENCE EXISTED IN THE PRESENT CASE.  IT IS NOT ENOUGH TO SAY
THAT EVIDENCE OF THE GUILT OF EACH OF THE PRESENT PETITIONERS MAY HAVE
BEEN CLEAR.  REASONS FOR SEVERANCE ARE FOUNDED ON THE PRINCIPLE THAT
EVIDENCE AGAINST ONE PERSON MAY NOT BE USED AGAINST A CODEFENDANT WHOSE
CRIME IS UNRELATED TO THE OTHERS.  INSTRUCTIONS CAN BE GIVEN THE JURY
AND ADMONITIONS CAN BE MADE EXPLICIT THAT THE LINE BETWEEN THE VARIOUS
DEFENDANTS MUST BE KEPT SEPARATE.  THE DISTRICT JUDGE CONSCIENTIOUSLY
MADE THAT EFFORT HERE.  BUT WHERE, AS HERE, THERE IS NO NEXUS BETWEEN
THE SEVERAL CRIMES, THE MOUNTING PROOF OF THE GUILT OF ONE IS LIKELY TO
AFFECT ANOTHER.  THERE IS NO SURE WAY TO PROTECT AGAINST IT EXCEPT BY
SEPARATE TRIALS, ESPECIALLY WHERE, AS HERE, THE SEVERAL DEFENDANTS,
THOUGH UNCONNECTED, COMMIT THE CRIMES CHARGED BY DEALING WITH ONE
PERSON, ONE HOUSE, ONE ESTABLISHMENT.  BY A JOINT TRIAL OF SUCH
SEPARATE OFFENSES, A SUBTLE BOND IS LIKELY TO BE CREATED BETWEEN THE
SEVERAL DEFENDANTS THOUGH THEY HAVE NEVER MET NOR ACTED IN UNISON;
PREJUDICE WITHIN THE MEANING OF RULE 14 (FN7) IS IMPLICIT. 

THIS IS UNLIKE THE CASE WHERE THE CONSPIRACY COUNT AND THE
SUBSTANTIVE COUNTS ARE SUBMITTED TO THE JURY, THE VERDICT BEING NOT
GUILTY OF CONSPIRACY BUT GUILTY ON THE OTHER COUNTS.  THERE IS THEN NO
ESCAPE FROM THE QUANDARY IN WHICH DEFENDANTS FIND THEMSELVES.  ONCE THE
CONSPIRACY IS SUPPORTED BY EVIDENCE, IT PRESENTS ISSUES FOR THE JURY TO
DECIDE.  WHAT MAY MOTIVATE A PARTICULAR JURY IN RETURNING A VERDICT OF
NOT GUILTY ON THE CONSPIRACY COUNTY MAY NEVER BE KNOWN. 

CONSPIRACY PRESENTS PERPLEXING PROBLEMS THAT HAVE LONG CONCERNED
COURTS.  SEE KRULEWITCH V. UNITED STATES, 336 U.S. 440; DELLI PAOLI V.
UNITED STATES, 352 U.S. 232.  WHILE IT IS PROPER AT TIMES TO JOIN A
CONSPIRACY COUNT WITH SUBSTANTIVE COUNTS EVEN WHERE THE LATTER ARE THE
SAME AS THE OVERT ACTS CHARGED IN THE CONSPIRACY COUNT, PINKERTON V.
UNITED STATES, 328 U.S. 640, THERE IS DANGER IN ANY MULTIPLICATION. 
THE LOOSE PRACTICE OF TRYING TO BRING TOGETHER INTO ONE CONSPIRACY
THOSE WHOSE TIES ARE AT BEST EXTREMELY TENUOUS HAS OFTEN BEEN
CRITICIZED.  (FN8)  WE ALLOW CONSPIRACY TO BE PUT TO NEW DANGEROUS USES
WHEN WE SANCTION THE PRACTICE APPROVED HERE. 

I WOULD REVERSE THESE JUDGMENTS AND REMAND THE CAUSES FOR NEW
TRIALS. 

FN1  18 U.S.C. SEC. 2314 PROVIDES IN RELEVANT PART: 

"WHOEVER TRANSPORTS IN INTERSTATE OR FOREIGN COMMERCE ANY GOODS,
WARES, MERCHANDISE, SECURITIES OR MONEY, OF THE VALUE OF $5,000 OR
MORE, KNOWING THE SAME TO HAVE BEEN STOLEN, CONVERTED OR TAKEN BY
FRAUD; ... . 

"SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH." 

FN2  18 U.S.C. SEC. 2311 PROVIDES SO FAR AS MATERIAL HERE: 

"'VALUE' MEANS THE FACE, PAR, OR MARKET VALUE, WHICHEVER IS THE
GREATEST, AND THE AGGREGATE VALUE OF ALL GOODS, WARES, AND MERCHANDISE,
SECURITIES, AND MONEY REFERRED TO IN A SINGLE INDICTMENT SHALL
CONSTITUTE THE VALUE THEREOF." 

FN3  A MOTION OF PETITIONER KARP FOR A SEVERANCE WAS DENIED.  158 F.
SUPP. 522. 

FN4 A SEPARATE INDICTMENT CHARGING A CONSPIRACY BETWEEN PETITIONERS
AND OTHERS TO VIOLATE 18 U.S.C. SEC. 659 BY RECEIVING AND CONCEALING
GOODS STOLEN IN INTERSTATE COMMERCE WAS ALSO DISMISSED. 

FN5  RULE 8(B) PROVIDES: 

"TWO OR MORE DEFENDANTS MAY BE CHARGED IN THE SAME INDICTMENT OR
INFORMATION IF THEY ARE ALLEGED TO HAVE PARTICIPATED IN THE SAME ACT OR
TRANSACTION OR IN THE SAME SERIES OF ACTS OR TRANSACTIONS CONSTITUTING
AN OFFENSE OR OFFENSES.  SUCH DEFENDANTS MAY BE CHARGED IN ONE OR MORE
COUNTS TOGETHER OR SEPARATELY AND ALL OF THE DEFENDANTS NEED NOT BE
CHARGED IN EACH COUNT." 

FN6  SEE NOTE 5, SUPRA. 

FN7 RULE 14 PROVIDES: 

"IF IT APPEARS THAT A DEFENDANT OR THE GOVERNMENT IS PREJUDICED BY A
JOINDER OF OFFENSES OR OF DEFENDANTS IN AN INDICTMENT OR INFORMATION OR
BY SUCH JOINDER FOR TRIAL TOGETHER, THE COURT MAY ORDER AN ELECTION OR
SEPARATE TRIALS OF COUNTS, GRANT A SEVERANCE OF DEFENDANTS OR PROVIDE
WHATEVER OTHER RELIEF JUSTICE REQUIRES." 

FN8  SEE ANNUAL REPORT OF THE ATTORNEY GENERAL FOR 1925, PP. 5-6;
O'DOUGHERTY, PROSECUTION AND DEFENSE UNDER CONSPIRACY INDICTMENTS, 9
BROOKLYN L. REV. 263; DEVELOPMENTS IN THE LAW:  CRIMINAL CONSPIRACY, 72
HARV. L. REV. 920, 980-983; NOTE, GUILT BY ASSOCIATION - THREE WORDS IN
SEARCH OF A MEANING, 17 U. OF CHI.  L. REV. 148; NOTE, THE CONSPIRACY
DILEMMA:  PROSECUTION OF GROUP CRIME OR PROTECTION OF INDIVIDUAL
DEFENDANTS, 62 HARV. L. REV. 276; UNITED STATES V. FALCONE, 109 F.2D
579, 581 (C.A.2D CIR.); UNITED STATES V. LISS, 137 F.2D 995, 1003
(C.A.2D CIR.)(DISSENTING OPINION). 
..END :






WYATT V. UNITED STATES 362 U.S. 525 


NO. 119.  ARGUED JANUARY 13, 1960 - DECIDED MAY 16, 1960 - 263 F.2D 304,
AFFIRMED. 


PETITIONER WAS TRIED AND CONVICTED IN A FEDERAL DISTRICT COURT OF
KNOWINGLY TRANSPORTING A WOMAN IN INTERSTATE COMMERCE FOR THE PURPOSE
OF PROSTITUTION, IN VIOLATION OF 18 U.S.C. SEC. 2421.  AT THE TRIAL,
THE WOMAN, WHO HAD MARRIED PETITIONER SINCE THE DATE OF THE OFFENSE,
WAS ORDERED OVER HER OBJECTION AND THAT OF PETITIONER TO TESTIFY FOR
THE PROSECUTION.  HELD:  THE RULING WAS CORRECT AND THE JUDGMENT IS
AFFIRMED.  PP. 525-531. 

(A)  THOUGH THE COMMON-LAW RULE OF EVIDENCE ORDINARILY PERMITTING A
DEFENDANT TO EXCLUDE THE ADVERSE TESTIMONY OF HIS OR HER SPOUSE STILL
APPLIES IN THE FEDERAL COURTS, THERE IS AN EXCEPTION WHICH PERMITS THE
DEFENDANT'S WIFE TO TESTIFY AGAINST HIM WHEN SHE WAS THE VICTIM OF A
VIOLATION OF SEC. 2421.  PP. 526-527. 

(B)  THE PRIVILEGE ACCORDED BY THE GENERAL RULE RESIDES IN THE
WITNESS AS WELL AS IN THE DEFENDANT.  PP. 527-529. 

(C)  IN VIEW OF THE PURPOSE OF SEC. 2421, A PROSTITUTED WITNESS-WIFE
MAY NOT PROTECT HER HUSBAND BY DECLINING TO TESTIFY AGAINST HIM.  PP.
529-530. 

(D)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT THE
MARRIAGE TOOK PLACE AFTER THE COMMISSION OF THE OFFENSE.  PP. 530-531. 

WYATT V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS TRIED AND CONVICTED OF KNOWINGLY TRANSPORTING A WOMAN
IN INTERSTATE COMMERCE FOR THE PURPOSE OF PROSTITUTION, IN VIOLATION OF
THE WHITE SLAVE TRAFFIC ACT, 18 U.S.C. SEC. 2421.  AT THE TRIAL, THE
WOMAN, WHO HAD SINCE THE DATE OF THE OFFENSE MARRIED THE PETITIONER,
WAS ORDERED, OVER HER OBJECTION AND THAT OF THE PETITIONER, TO TESTIFY
ON BEHALF OF THE PROSECUTION.  (FN1)  THE COURT OF APPEALS, ON APPEAL
FROM A JUDGMENT OF CONVICTION, AFFIRMED THE RULING OF THE DISTRICT
COURT.  263 F.2D 304.  AS THE CASE PRESENTED SIGNIFICANT ISSUES
CONCERNING THE SCOPE AND NATURE OF THE PRIVILEGE AGAINST ADVERSE
SPOUSAL TESTIMONY, TREATED LAST TERM IN HAWKINS V. UNITED STATES, 358
U.S. 74, WE GRANTED CERTIORARI.  360 U.S. 908.  WE AFFIRM THE
JUDGMENT. 

FIRST.  OUR DECISION IN HAWKINS ESTABLISHED, FOR THE FEDERAL COURTS,
THE CONTINUED VALIDITY OF THE COMMON-LAW RULE OF EVIDENCE ORDINARILY
PERMITTING A PARTY TO EXCLUDE THE ADVERSE TESTIMONY OF HIS OR HER
SPOUSE.  HOWEVER, AS THAT CASE EXPRESSLY ACKNOWLEDGED, THE COMMON LAW
HAS LONG RECOGNIZED AS EXCEPTION IN THE CASE OF CERTAIN KINDS OF
OFFENSES COMMITTED BY THE PARTY AGAINST HIS SPOUSE.  ID., AT 75, CITING
STEIN V. BOWMAN, 13 PET. 209, 221.  EXPLORATION OF THE PRECISE BREADTH
OF THIS EXCEPTION, A MATTER OF SOME UNCERTAINTY, SEE 8 WIGMORE,
EVIDENCE (3D ED.), SEC. 2239, CAN AWAIT A CASE WHERE IT IS NECESSARY. 
FOR PRESENT PURPOSES IT IS ENOUGH TO NOTE THAT EVERY COURT OF APPEALS
WHICH HAS CONSIDERED THE SPECIFIC QUESTION NOW HOLDS THAT THE
EXCEPTION, AND NOT THE RULE, APPLIES TO A MANN ACT PROSECUTION, WHERE
THE DEFENDANT'S WIFE WAS THE VICTIM OF THE OFFENSE.  (FN2)  SUCH
UNANIMITY WITH RESPECT TO A RULE OF EVIDENCE LENDS WEIGHTY CREDENTIALS
TO THAT VIEW. 

WHILE THIS COURT HAS NEVER BEFORE DECIDED THE QUESTION, WE NOW
UNHESTITATINGLY APPROVE THE RULE FOLLOWED IN FIVE DIFFERENT CIRCUITS. 
WE NEED NOT EMBARK UPON AN EXTENDED CONSIDERATION OF THE ASSERTED BASES
FOR THE SPOUSAL PRIVILEGE (SEE HAWKINS, SUPRA, AT 77-78; WIGMORE, OP.
CIT., SUPRA, SEC. 2228(3)) AND AN APPRAISAL OF THE APPLICABILITY OF
EACH HERE, ID., SEC. 2239, FOR IT CANNOT BE SERIOUSLY ARGUED THAT ONE
WHO HAS COMMITTED THIS "SHAMELESS OFFENSE AGAINST WIFEHOOD," ID., AT P.
257, SHOULD BE PERMITTED TO PREVENT HIS WIFE FROM TESTIFYING TO THE
CRIME BY INVOKING AN INTEREST FOUNDED ON THE MARITAL RELATION OR THE
DESIRE OF THE LAW TO PROTECT IT.  PETITIONER'S ATTEMPT TO PREVENT HIS
WIFE FROM TESTIFYING, BY INVOKING AN ASSERTED PRIVILEGE OF HIS OWN, WAS
PROPERLY REJECTED. 

SECOND.  THE WITNESS-WIFE, HOWEVER, DID NOT TESTIFY WILLINGLY, BUT
OBJECTED TO BEING QUESTIONED BY THE PROSECUTION, AND GAVE EVIDENCE ONLY
UPON THE RULING OF THE DISTRICT COURT DENYING HER CLAIMED PRIVILEGE NOT
TO TESTIFY.  WE THEREFORE CONSIDER THE CORRECTNESS OF THAT RULING. 
(FN3) 

THE UNITED STATES ARGUES THAT, ONCE HAVING HELD, AS WE DO, THAT IN
SUCH A CASE AS THIS THE PETITIONER'S WIFE COULD NOT BE PREVENTED FROM
TESTIFYING VOLUNTARILY, HAWKINS ESTABLISHES THAT SHE MAY BE COMPELLED
TO TESTIFY.  FOR, IT IS SAID, THAT CASE SPECIFICALLY REJECTED ANY
DISTINCTION BETWEEN VOLUNTARY AND COMPELLED TESTIMONY.  358 U.S., AT
77.  THIS ARGUMENT FAILS TO TAKE ACCOUNT OF THE SETTING OF OUR DECISION
IN HAWKINS.  TO SAY THAT A WITNESS-SPOUSE MAY BE PREVENTED FROM
TESTIFYING VOLUNTARILY SIMPLY MEANS THAT THE PARTY HAS A PRIVILEGE TO
EXCLUDE THE TESTIMONY; (FN4) WHEN, ON THE OTHER HAND, THE SPOUSE MAY
NOT BE COMPELLED TO TESTIFY AGAINST HER WILL, IT IS THE WITNESS WHO IS
ACCORDED A PRIVILEGE.  IN HAWKINS, THE GOVERNMENT TOOK THE POSITION
THAT THE SPOUSAL PRIVILEGE SHOULD BE THAT OF THE WITNESS, AND NOT THAT
OF THE PARTY, SO THAT WHILE THE WIFE COULD DECLINE TO TESTIFY, SHE
COULD NOT BE PREVENTED FROM GIVING EVIDENCE IF SHE ELECTED NOT TO CLAIM
A PRIVILEGE WHICH, IT WAS SAID, BELONGED TO HER ALONE.  BRIEF FOR THE
UNITED STATES, NO. 20, O.T. 1958, PP. 22-43.  IN DECLINING TO HOLD THAT
THE PARTY HAD NO PRIVILEGE, WE MANIFESTLY DID NOT THEREBY REPUDIATE THE
PRIVILEGE OF THE WITNESS. 

WHILE THE QUESTION HAS NOT OFTEN ARISEN, IT HAS APPARENTLY BEEN
GENERALLY ASSUMED THAT THE PRIVILEGE RESIDED IN THE WITNESS AS WELL AS
IN THE PARTY.  HAWKINS REFERRED TO "A RULE WHICH BARS THE TESTIMONY OF
ONE SPOUSE AGAINST THE OTHER UNLESS BOTH CONSENT," SUPRA, AT 78.  SEE
STEIN V. BOWMAN, SUPRA, AT 223 (WIFE CANNOT "BY FORCE OF AUTHORITY BE
COMPELLED TO STATE FACTS IN EVIDENCE"); UNITED STATES V. MITCHELL,
SUPRA, AT 1008 ("THE BETTER VIEW IS THAT THE PRIVILEGE IS THAT OF
EITHER SPOUSE WHO CHOOSES TO CLAIM IT"); WIGMORE, OP. CIT., SUPRA, SEC.
2241; MCCORMICK, EVIDENCE, SEC. 66, N. 3.  IN ITS HAWKINS BRIEF, THE
GOVERNMENT, WHILE CALLING FOR THE ABOLITION OF THE PARTY'S PRIVILEGE,
URGED THAT THE COMMON-LAW DEVELOPMENT COULD BE EXPLAINED, AND ITS
POLICIES FULLY VINDICATED, BY RECOGNITION OF THE PRIVILEGE OF THE
WITNESS.  BRIEF, PP. 22-25, 33, 42-43; SEE HAWKINS, SUPRA, AT 77, AND
CONCURRING OPINION, AT 82.  AT LEAST SOME OF THE BASES OF THE PARTY'S
PRIVILEGE ARE IN REASON APPLICABLE TO THAT OF THE WITNESS.  AS WIGMORE
PUTS IT, OP. CIT., SUPRA, AT P. 264:  "WHILE THE DEFENDANT-HUSBAND IS
ENTITLED TO BE PROTECTED AGAINST CONDEMNATION THROUGH THE WIFE'S
TESTIMONY, THE WITNESS-WIFE IS ALSO ENTITLED TO BE PROTECTED AGAINST
BECOMING THE INSTRUMENT OF THAT CONDEMNATION, - THE SENTIMENT IN EACH
CASE BEING EQUAL IN DEGREE AND YET DIFFERENT IN QUALITY."  IN LIGHT OF
THESE CONSIDERATIONS, WE DECLINE TO ACCEPT THE VIEW THAT THE PRIVILEGE
IS THAT OF THE PARTY ALONE. 

THIRD.  NEITHER CAN WE HOLD THAT, WHENEVER THE PRIVILEGE IS
UNAVAILABLE TO THE PARTY, IT IS IPSO FACTO LOST TO THE WITNESS AS
WELL.  IT IS A QUESTION IN EACH CASE, OR IN EACH CATEGORY OF CASES,
WHETHER, IN LIGHT OF THE REASON WHICH HAS LED TO A REFUSAL TO RECOGNIZE
THE PARTY'S PRIVILEGE, THE WITNESS SHOULD BE HELD COMPELLABLE. 
CERTAINLY, WE WOULD NOT BE JUSTIFIED IN LAYING DOWN A GENERAL RULE THAT
BOTH PRIVILEGES STAND OR FALL TOGETHER.  WE TURN INSTEAD TO THE
PARTICULAR SITUATION AT BAR. 

WHERE A MAN HAS PROSTITUTED HIS OWN WIFE, HE HAS COMMITTED AN OFFENSE
AGAINST BOTH HER AND THE MARITAL RELATION, AND WE HAVE TODAY AFFIRMED
THE EXCEPTION DISABLING HIM FROM EXCLUDING HER TESTIMONY AGAINST HIM. 
IT IS SUGGESTED, HOWEVER, THAT THIS EXCEPTION HAS NO APPLICATION TO THE
WITNESS-WIFE WHEN SHE CHOOSES TO REMAIN SILENT.  THE EXCEPTION TO THE
PARTY'S PRIVILEGE, IT IS SAID, RESTS ON THE NECESSITY OF PREVENTING THE
DEFENDANT FROM SEALING HIS WIFE'S LIPS BY HIS OWN UNLAWFUL ACT, SEE
UNITED STATES V. MITCHELL, SUPRA, AT 1008-1009; WIGMORE, OP. CIT.,
SUPRA, SEC. 2239, AND IT IS ARGUED THAT WHERE THE WIFE HAS CHOSEN NOT
TO "BECOME THE INSTRUMENT" OF HER HUSBAND'S DOWNFALL, IT IS HER OWN
PRIVILEGE WHICH IS IN QUESTION, AND THE REASONS FOR ACCORDING IT TO HER
IN THE FIRST PLACE ARE FULLY APPLICABLE. 

WE MUST VIEW THIS POSITION IN LIGHT OF THE CONGRESSIONAL JUDGMENT AND
POLICY EMBODIED IN THE MANN ACT.  "A PRIMARY PURPOSE OF THE MANN ACT
WAS TO PROTECT WOMEN WHO WERE WEAK FROM MEN WHO WERE BAD."  DENNING V.
UNITED STATES, 247 F. 463, 465.  IT WAS IN RESPONSE TO SHOCKING
REVELATIONS OF SUBJUGATION OF WOMEN TOO WEAK TO RESIST THAT CONGRESS
ACTED.  SEE H.R. REP. NO. 47, 61ST CONG., 2D SESS., PP. 10-11.  AS THE
LEGISLATIVE HISTORY DISCLOSES, THE ACT REFLECTS THE SUPPOSITION THAT
THE WOMEN WITH WHOM IT SOUGHT TO DEAL OFTEN HAD NO INDEPENDENT WILL OF
THEIR OWN, AND EMBODIES, IN EFFECT, THE VIEW THAT THEY MUST BE
PROTECTED AGAINST THEMSELVES.  COMPARE 18 U.S.C. SEC. 2422 (CONSENT OF
WOMAN IMMATERIAL IN PROSECUTION UNDER THAT SECTION).  IT IS NOT FOR US
TO RE-EXAMINE THE BASIS OF THAT SUPPOSITION. 

APPLYING THE LEGISLATIVE JUDGMENT UNDERLYING THE ACT, WE ARE LED TO
HOLD IT NOT AN ALLOWABLE CHOICE FOR A PROSTITUTED WITNESS-WIFE
"VOLUNTARILY" TO DECIDE TO PROTECT HER HUSBAND BY DECLINING TO TESTIFY
AGAINST HIM.  FOR IF A DEFENDANT CAN INDUCE A WOMAN, AGAINST HER
"WILL," TO ENTER A LIFE OF PROSTITUTION FOR HIS BENEFIT - AND THE ACT
RESTS ON THE VIEW THAT HE CAN - BY THE SAME TOKEN IT SHOULD BE
CONSIDERED THAT HE CAN, AT LEAST AS EASILY, PERSUADE ONE WHO HAS
ALREADY FALLEN VICTIM TO HIS INFLUENCE THAT SHE MUST ALSO PROTECT HIM. 
TO MAKE MATTERS TURN UPON AD HOC INQUIRIES INTO THE ACTUAL STATE OF
MIND OF PARTICULAR WOMEN, THEREBY ENCUMBERING MANN ACT TRIALS WITH A
COLLATERAL ISSUE OF THE GREATEST SUBTLETY, IS HARDLY AN ACCEPTABLE
SOLUTION. 

FOURTH.  WHAT WE HAVE ALREADY SAID LIKEWISE GOVERNS THE DISPOSITION
OF THE PETITIONER'S RELIANCE ON THE FACT THAT HIS MARRIAGE TOOK PLACE
AFTER THE COMMISSION OF THE OFFENSE.  AGAIN, WE DEAL HERE ONLY WITH A
MANN ACT PROSECUTION, AND INTIMATE NO VIEW ON THE APPLICABILITY OF THE
PRIVILEGE OF EITHER A PARTY OR A WITNESS SIMILARLY CIRCUMSTANCED IN
OTHER SITUATIONS.  THE LEGISLATIVE ASSUMPTION OF LACK OF INDEPENDENT
WILL APPLIES AS FULLY HERE.  AS THE PETITIONER BY HIS POWER OVER THE
WITNESS COULD, AS WE HAVE CONSIDERED SHOULD BE ASSUMED, HAVE SECURED
HER PROMISE NOT TO TESTIFY, SO, IT SHOULD BE ASSUMED, COULD HE HAVE
INDUCED HER TO GO THROUGH A MARRIAGE CEREMONY WITH HIM, PERHAPS "IN
CONTEMPLATION OF EVADING JUSTICE BY REASON OF THE VERY RULE WHICH IS
NOW SOUGHT TO BE INVOKED."  UNITED STATES V. WILLIAMS, 55 F. SUPP. 375,
380. 

THE RULING OF THE DISTRICT COURT WAS CORRECTLY UPHELD BY THE COURT OF
APPEALS.  (FN5)  AFFIRMED. 

FN1  ALTHOUGH THE RECORD IS AMBIGUOUS AS TO THE FACT AND TIME OF
PETITIONER'S MARRIAGE, WE SHALL CONSIDER ESTABLISHED, AS THE COURT OF
APPEALS DID, THE SEQUENCE OF EVENTS STATED IN THE TEXT.  FURTHER, THE
COURT OF APPEALS NOTED THAT, WHILE THE RECORD DID NOT CLEARLY ESTABLISH
THAT THE PETITIONER, AS WELL AS HIS WIFE, CLAIMED A PRIVILEGE WITH
RESPECT TO HER TESTIMONY, IT WOULD ASSUME THAT HE HAD.  263 F.2D 304,
308.  WE ACCEPT THAT ASSUMPTION. 

FN2  UNITED STATES V. MITCHELL, 137 F.2D 1006 (C.A.2D CIR.); LEVINE
V. UNITED STATES, 163 F.2D 992 (C.A. 5TH CIR.); SHORES V. UNITED
STATES, 174 F.2D 838 (C.A. 8TH CIR.), OVERRULING JOHNSON V. UNITED
STATES, 221 F. 250; PAPPAS V. UNITED STATES, 241 F. 665 (C.A. 9TH
CIR.); HAYES V. UNITED STATES, 168 F.2D 996 (C.A. 10TH CIR.). 

FN3  THE UNITED STATES DOES NOT QUESTION THE STANDING OF PETITIONER
TO SEEK REVERSAL BECAUSE OF THE ALLEGEDLY ERRONEOUS REFUSAL TO RESPECT
THE PRIVILEGE OF HIS WIFE.  SINCE SUCH TESTIMONY, EVEN IF WRONGLY
COMPELLED, IS PER SE ADMISSIBLE, FUNK V. UNITED STATES, 290 U.S. 371,
AND RELEVANT, IT HAS BEEN ARGUED THAT THE PARTY HAS SUFFERED NO INJURY
OF WHICH HE MAY COMPLAIN.  WIGMORE, OP. CIT., SUPRA, SEC. 2196(2)(A);
MCCORMICK, EVIDENCE, SEC. 73; UNIFORM RULES OF EVIDENCE, RULE 40; AM.
L. INST.  MODEL CODE OF EVIDENCE, RULE 234; NOTE, 30 COL. L. REV. 686,
693-694.  SEE, E.G., TURNER V. STATE, 60 MISS.  351, 353.  HOWEVER, AS
THE POINT HAS NOT BEEN BRIEFED OR ARGUED, WE HAVE THOUGHT IT
APPROPRIATE, IN VIEW OF OUR DISPOSITION OF THE CASE ON THE MERITS, NOT
TO CONSIDER THE ISSUE OF STANDING, AND OF COURSE INTIMATE NO VIEW ON
IT. 

FN4  FUNK V. UNITED STATES, SUPRA, ABOLISHED, FOR THE FEDERAL COURTS,
THE DISQUALIFICATION OR INCOMPETENCE OF THE SPOUSE AS A WITNESS, THUS
ESTABLISHING THE ADMISSIBILITY OF HIS OR HER TESTIMONY, AND LEAVING THE
QUESTION ONE OF PRIVILEGE ONLY. 

FN5  THE PETITIONER'S FURTHER ASSERTION, THAT APART FROM THE
TESTIMONY OF THE WIFE THERE WAS INSUFFICIENT CORROBORATION OF HIS
ADMISSION OF TRANSPORTATION, THUS FAILS BY ITS OWN ASSUMPTION. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

LAST TERM THIS COURT HELD THAT A WIFE COULD NOT VOLUNTARILY TESTIFY
AGAINST HER HUSBAND IN A CRIMINAL PROSECUTION OVER HIS OBJECTION. 
HAWKINS V. UNITED STATES, 358 U.S. 74.  THE COURT FINDS THE CASE AT BAR
SO DIFFERENT FROM HAWKINS THAT IT APPROVES OVERRIDING NOT ONLY THE
HUSBAND'S OBJECTION, BUT ALSO THE WIFE'S.  IN BOTH CASES THE HUSBAND
WAS PROSECUTED FOR VIOLATION OF THE MANN ACT, 18 U.S.C. SEC. 2421.  THE
ONLY RELEVANT DIFFERENCE IS THAT HERE THE WIFE HERSELF WAS THE PERSON
ALLEGEDLY TRANSPORTED BY THE HUSBAND FOR PURPOSES OF PROSTITUTION. 
MORALLY SPEAKING, THIS PROFANATION OF THE MARRIAGE RELATIONSHIP ADDS AN
ELEMENT OF THE UTMOST DEPRAVITY TO THE UGLY BUSINESS OF PROMOTING
PROSTITUTION.  LEGALLY SPEAKING, HOWEVER, THIS DOES NOT WARRANT THE
RADICAL DEPARTURE FROM THE HAWKINS RULE WHICH THE COURT NOW SANCTIONS. 

THE COURT'S ANALYSIS OF THE PROBLEM HERE PRESENTED IS SOUND IN SO
MANY WAYS THAT THE UNSOUNDNESS OF ITS CONCLUSION IS ESPECIALLY
DISAPPOINTING - AND SOMEWHAT CURIOUS.  BRIEFLY, THAT ANALYSIS APPEARS
TO BE AS FOLLOWS:  THE COURT ACCEPTS THE PRINCIPLE THAT THE SPOUSAL
PRIVILEGE BELONGS BOTH TO THE PERSON CHARGED WITH THE OFFENSE, AS WE
HELD IN HAWKINS, AND ALSO TO THE WITNESS.  MOREOVER, THE COURT REJECTS
THE NOTION THAT THE LATTER MAY BE BARRED FROM ASSERTING THE PRIVILEGE
SIMPLY BECAUSE, IN A GIVEN CASE, IT MAY BE IMPROPER FOR THE FORMER TO
INVOKE IT.  THE DEFENDANT MAY NOT CLAIM THE PRIVILEGE WHERE HE IS
CHARGED WITH "CERTAIN KINDS OF OFFENSES COMMITTED  ...  AGAINST HIS
SPOUSE," AND THE COURT BELIEVES THAT THE INSTANT CASE INVOLVES THIS
TYPE OF CRIME.  IT APPARENTLY RECOGNIZES, MOREOVER, THAT THE POLICY
BEHIND THIS EXCEPTION MAY BE EFFECTUATED IN THE ORDINARY SITUATION BY
GIVING THE INJURED PARTY THE OPTION TO TESTIFY, WITHOUT COMPELLING HER
TO TESTIFY.  (FN1)  IN THIS CASE, HOWEVER, IT CONCLUDES THAT THE WIFE
"SHOULD BE ASSUMED" TO BE UNDER THE SWAY OF THE HUSBAND TO SUCH AN
EXTENT THAT SHE CANNOT BE ENTRUSTED WITH THAT CHOICE.  CONSEQUENTLY,
THE TRIAL COURT - AND THE PROSECUTOR - MUST BE GIVEN THE POWER TO
PROTECT HER AGAINST HERSELF BY FORCING HER TO TESTIFY.    THE FATAL
DEFECT IN THIS CONCLUSION LIES IN THE COURT'S EVALUATION OF THE MENTAL
STATE OF THE WIFE, AN EVALUATION WHICH FINDS NO SUPPORT IN THE RECORD
AND WHICH CANNOT PROPERLY BE JUSTIFIED BY ANY LEGISLATIVE ENACTMENT. 

THE COURT DOES NOT AND COULD NOT RELY UPON THE RECORD TO PROVE THAT
PETITIONER'S WIFE WAS SOMEHOW MESMERIZED BY HIM WHEN SHE WAS ON THE
WITNESS STAND.  THE EVIDENCE, IN POINT OF FACT, STRONGLY SUGGESTS THAT
THE WIFE PLAYED A MANAGERIAL ROLE IN THE SORDID ENTERPRISE WHICH FORMED
THE BASIS FOR THE PROSECUTION.  (FN2)  APPARENTLY THIS WAS THE JURY'S
VIEW, SINCE THE JURORS ASKED THE JUDGE WHETHER IT WOULD "MAKE ANY
DIFFERENCE OR - IF THE WOMAN HAD ANYTHING TO DO WITH THE INSTIGATION OR
PLANNING  ...  ."  THE JUDGE, OF COURSE, INSTRUCTED THEM THAT THIS
WOULD BE IMMATERIAL, BUT THE JURY NEVERTHELESS UNANIMOUSLY RECOMMENDED
LENIENCY.  THUS THIS CASE IS A STRANGE VEHICLE FOR THE COURT TO USE IN
ANNOUNCING ITS "LACK OF INDEPENDENT WILL" THEORY.  PRESUMABLY IT IS TO
BE REGARDED AS THE EXCEPTION WHICH PROVES THE RULE. 

THE SOLE GROUND ASSIGNED BY THE COURT FOR ITS DECISION IS THAT IT IS
A NECESSARY APPLICATION OF THE "LEGISLATIVE JUDGMENT UNDERLYING THE
MANN ACT," WHICH "REFLECTS THE SUPPOSITION THAT THE WOMEN WITH WHOM
CONGRESS SOUGHT TO DEAL OFTEN HAD NO INDEPENDENT WILL OF THEIR OWN, AND
EMBODIES, IN EFFECT, THE VIEW THAT THEY MUST BE PROTECTED AGAINST
THEMSELVES."  IN SUPPORT OF THIS HYPOTHESIS, THE COURT CITES
LEGISLATIVE HISTORY AND THE FACT THAT, UNDER 18 U.S.C. SEC. 2422, A
COMPANION PROVISION TO SEC. 2421, THE CONSENT OF THE WOMAN DOES NOT
RELIEVE THE DEFENDANT OF CRIMINAL RESPONSIBILITY.  (FN3)  THIS EQUATION
OF THE LEGISLATIVE JUDGMENT INVOLVED IN FASHIONING A CRIMINAL STATUTE
WITH THE JUDGMENT INVOLVED IN THE COURT'S RESTRICTION OF THE HUSBAND
WIFE PRIVILEGE IS, I SUBMIT, ENTIRELY TOO FACILE, FOR IT OVERLOOKS THE
CRITICALLY DIFFERENT NATURE OF THESE PROBLEMS.  IN ASSESSING THE
PERTINENCE OF THE WOMAN'S CONSENT TO THE CULPRIT'S CRIMINAL
RESPONSIBILITY, CONGRESS CHOSE BETWEEN THE INTEREST OF SOCIETY IN
ERADICATING THE IMPORTATION AND INTERSTATE TRANSPORTATION OF
PROSTITUTES AND THE INTEREST OF WOMEN TO BE PROTECTED FROM CLEVER AND
UNSCRUPULOUS PROFITEERS, ON THE ONE HAND, AND THE VOLUNTARY ENGAGEMENT
OF WOMEN IN PROSTITUTION ON THE OTHER.  IN VIEW OF THE MANIFEST
IMBALANCE OF THESE COMPETING CONSIDERATIONS AND THE DIFFICULTY OF
DEFINITION AND PROOF OF THE TYPE OF CONSENT WHICH MIGHT CONCEIVABLY BE
RELEVANT, IT IS HARDLY SURPRISING THAT CONGRESS PASSED THE MANN ACT AND
MADE CONSENT ENTIRELY IMMATERIAL UNDER SEC. 2422.  THE TESTIMONIAL
PRIVILEGE, HOWEVER, PRESENTS QUESTIONS OF QUITE A DIFFERENT ORDER,
SINCE THERE IS A SIGNIFICANT INTEREST TRADITIONALLY REGARDED AS
SUPPORTING THE PRIVILEGE, AS WE RECOGNIZED IN HAWKINS - THE
PRESERVATION OF THE CONJUGAL RELATIONSHIP.  AND WHERE THE WIFE REFUSES
TO TESTIFY, THERE IS STRONG EVIDENCE THAT THERE IS STILL A MARITAL
RELATIONSHIP TO BE PROTECTED. 

NOT ONLY DOES PRIOR CONGRESSIONAL ACTION PROVIDE NO SUPPORT FOR THE
COURT'S DECISION, BUT WITHOUT SUCH SUPPORT THAT DECISION REPRESENTS AN
INCURSION INTO WHAT IS ESSENTIALLY A LEGISLATIVE AREA.  IT IS TRUE, OF
COURSE, THAT FEDERAL COURTS HAVE THE AUTHORITY TO INTERPRET THE COMMON
LAW PRINCIPLES OF EVIDENCE "IN THE LIGHT OF REASON AND EXPERIENCE." 
FED.  RULES CRIM. PROC., 26.  THIS AUTHORITY, HOWEVER, MUST BE
EXERCISED WITH A DISCRIMINATING AWARENESS OF THE DISTINCTION BETWEEN
MATTERS WHICH FALL WITHIN THE SPECIAL COMPETENCE OF THE JUDICIARY AND
THOSE WHICH ARE PRIMARILY THE CONCERN OF THE LEGISLATURE.  IT IS MORE
PROPERLY CONGRESS' BUSINESS, NOT OURS, TO PLACE COMPARATIVE VALUES UPON
THE QUEST FOR FACTS IN THE JUDICIAL PROCESS AS AGAINST THE SAFEGUARDING
OF THE MARRIAGE RELATIONSHIP, AND TO GIVE - OR DENY - EXPRESSION TO
WHAT HAS BEEN TERMED "A NATURAL REPUGNANCE IN EVERY FAIR-MINDED PERSON
TO COMPELLING A WIFE OR HUSBAND TO BE THE MEANS OF THE OTHER'S
CONDEMNATION, AND TO COMPELLING THE CULPRIT TO THE HUMILIATION OF BEING
CONDEMNED BY THE WORDS OF HIS INTIMATE LIFE-PARTNER."  8 WIGMORE,
EVIDENCE, 227.  THAT THIS DECISION IS UNIQUELY LEGISLATIVE AND NOT
JUDICIAL IS DEMONSTRATED BY THE FACT THAT, BOTH IN ENGLAND AND IN THIS
COUNTRY, CHANGES IN THE COMMON-LAW PRIVILEGE HAVE BEEN WROUGHT
PRIMARILY BY LEGISLATURES.  (FN4)  AND PERHAPS IT IS WORTH NOTING THAT
THE ESSENTIALS OF THE PRIVILEGE HAVE SURVIVED WITH REMARKABLE
STURDINESS THROUGH THE COURSE OF CONTINUED CONSIDERATION BY LEGISLATIVE
BODIES.  (FN5) 

OF PARTICULAR INTEREST IS THE PAST ACTION AND ATTITUDE OF CONGRESS
WITH RESPECT TO THE PRIVILEGE.  AS THE COURT POINTED OUT IN HAWKINS, IN
1887 CONGRESS PASSED A STATUTE WHICH PERMITTED EITHER SPOUSE TO TESTIFY
IN PROSECUTIONS OF THE OTHER FOR THE CRIMES OF BIGAMY, POLYGAMY, OR
UNLAWFUL COHABITATION, BUT STIPULATED THAT NEITHER SHOULD BE COMPELLED
TO TESTIFY.  24 STAT. 635.  APPARENTLY CONGRESS BELIEVED THAT THIS
PROVISION GAVE SUFFICIENT PROTECTION TO THE SPOUSE-WITNESS, AND THAT
THE INTEREST OF THE STATE IN SECURING CONVICTIONS WAS OUTWEIGHED BY THE
CONSIDERATIONS SUPPORTING THE RIGHT OF THE SPOUSE-WITNESS NOT TO
TESTIFY AGAINST HER WILL.  EVEN MORE IN POINT IS THE 1917 LEGISLATION
BY WHICH CONGRESS MADE SPOUSES COMPETENT TO TESTIFY AGAINST EACH OTHER
IN PROSECUTIONS FOR THE IMPORTATION OF ALIENS FOR IMMORAL PURPOSES.  39
STAT. 878-879, RE-ENACTED AS 66 STAT. 230, 8 U.S.C. SEC. 1328.  THUS
CONGRESS HAS ACTED WITH RESPECT TO THE SCOPE OF THE PRIVILEGE IN
PROSECUTIONS UNDER A STATUTE KINDRED TO SEC. 2421, BUT HAS REMAINED
SILENT SO FAR AS SEC. 2421 ITSELF IS CONCERNED.  THE NEGATIVE
IMPLICATION DOES NOT REQUIRE ELABORATION.  (FN6)  MOREOVER, IT SHOULD
BE NOTED THAT EVEN UNDER SEC. 1328 THE TESTIMONY OF THE SPOUSE IS MADE
ONLY "ADMISSIBLE AND COMPETENT," NOT COMPELLABLE.  (FN7) 

IN MY JUDGMENT, THE COURT IN THIS CASE STRAYS FROM THE COURSE OF
APPROPRIATE JUDICIAL RESERVE MARKED BY HAWKINS.  I AM UNWILLING TO JOIN
IN A DECISION BASED UPON AN ASSUMPTION OF FACT WHICH IS WITHOUT SUPPORT
IN THE RECORD AND WHICH INVOLVES A DELICATE, AND ESSENTIALLY
LEGISLATIVE, DETERMINATION.  I THEREFORE DISSENT. 

FN1  PERHAPS THE COURT IS MERELY ASSUMING THIS TO BE TRUE ARGUENDO. 
SINCE THE BASIC PURPOSE OF THE EXCEPTION IS TO PREVENT THE HUSBAND FROM
ABUSING THE WIFE WITH IMPUNITY, THE ASSUMPTION IS AMPLY WARRANTED. 
SEE, E.G., LORD AUDLEY'S TRIAL, 3 HOW.  ST. TR. 401, 402, 414 (1631);
BENTLEY V. COOKE, 3 DOUG.  422, 424 (1784)("THAT NECESSITY IS NOT A
GENERAL NECESSITY, AS WHERE NO OTHER WITNESS CAN BE HAD, BUT A
PARTICULAR NECESSITY, AS WHERE, FOR INSTANCE, THE WIFE WOULD OTHERWISE
BE EXPOSED WITHOUT REMEDY TO PERSONAL INJURY."  MANSFIELD, L.C.J.); 8
WIGMORE, EVIDENCE (3D ED.), SEC. 2239; COMMENT, 4 ARK. L. REV. & BAR
ASSN. J. 426, 427; NOTE, 38 VA. L. REV. 359, 361.  ALL THAT IS
NECESSARY TO FULFILL THIS PURPOSE IS TO PROVIDE THE INJURED SPOUSE WITH
THE MEANS FOR REDRESS.  IF SHE CHOOSES NOT TO UTILIZE THAT MEANS, THERE
IS NO GREATER JUSTIFICATION FOR COMPELLING HER TESTIFMONY IN SUCH A
CASE THAN THERE IS IN THE NORMAL SITUATION.  ALTHOUGH THERE IS
CONCEDEDLY AUTHORITY TO THE CONTRARY, IN MY VIEW IT IS NOT WELL
REASONED.  SINCE THE COURT DOES NOT DISAGREE, IT IS UNNECESSARY AT THIS
TIME TO DISCUSS THE MATTER IN DETAIL. 

FN2  THE MOST IMPORTANT TESTIMONY REGARDING THE PETITIONER'S PURPOSE
IN PROVIDING FOR HIS WIFE'S TRANSPORTATION WAS GIVEN BY A HOTEL
BELLBOY, WHO RELATED VARIOUS CONVERSATIONS WHICH HE HAD WITH
PETITIONER.  THE CLERK ALSO TESTIFIED AS TO HIS CONVERSATIONS WITH THE
WIFE, AND THERE IS LITTLE IF ANYTHING TO DISTINGUISH THE EVIDENCE
RELATING TO THE WIFE FROM THAT RELATING TO THE HUSBAND. 

FN3  SECTION 2421, GENERALLY SPEAKING, MAKES IT A CRIME (A) TO
TRANSPORT IN INTERSTATE OR FOREIGN COMMERCE ANY WOMAN FOR THE PURPOSE
OF PROSTITUTION OR OTHER IMMORAL PURPOSE, OR WITH THE INTENT OF
INDUCING HER TO ENGAGE IN PROSTITUTION OR OTHER IMMORAL PRACTICE, AND
(B) TO SECURE INTERSTATE OR FOREIGN TRANSPORTATION FOR ANY WOMAN FOR
THE ABOVE PURPOSES OR WITH THE ABOVE INTENT.  SECTION 2422, GENERALLY
SPEAKING, MAKES IT A CRIME TO INDUCE A WOMAN TO TRAVEL ON COMMON
CARRIERS IN INTERSTATE OR FOREIGN COMMERCE FOR THE ABOVE PURPOSES OR
WITH THE ABOVE INTENT. 

FN4  EVERY STATE HAS A STATUTE GOVERNING THE MATTER.  FOR DISCUSSION
OF THESE STATUTES, SEE 3 VERNIER, AMERICAN FAMILY LAWS, 585-586; 2
WIGMORE, EVIDENCE, SEC. 488, 8 ID., SEC. 2245; 43 MARQ.  L. REV. 131,
132; 33 TULANE L. REV. 884; NOTE, 38 VA. L. REV. 359.  THE MANY
DIFFERENCES AMONG THESE STATUTES IS FURTHER EVIDENCE OF THE DIVERGENT
VIEWS WHICH MAY BE HELD WITH RESPECT TO THE RELATIVE IMPORTANCE OF THE
FACTORS INVOLVED.  IT IS INTERESTING TO NOTE IN THIS CONNECTION THAT
APPARENTLY ONLY A SMALL MINORITY OF STATES HAVE PASSED STATUTES WHICH
MAKE THE WIFE COMPETENT TO TESTIFY IN A PROSECUTION AGAINST HER HUSBAND
FOR PANDERING OR WHITE SLAVERY WHEN SHE IS THE FEMALE INVOLVED, AND
ONLY SOME OF THESE MAKE HER COMPELLABLE AS WELL AS COMPETENT.  SEE,
E.G., ME. REV. STAT., 1954, C. 134, SEC. 22; ORE.  COMP.  LAWS ANN.,
1940, SEC. 23-921; UTAH CODE ANN., 1943, SEC. 103-51-14; VA. CODE,
1950, SEC. 18-97; W.VA. CODE ANN., 1955, SECS. 6062, 6063.  SEE ALSO
NOTE, 38 VA. L. REV. 359, 366.  NOR DOES THE COMPREHENSIVE BRITISH
LEGISLATION GIVE COMFORT TO THE COURT.  FOR A DESCRIPTION OF THESE
STATUTES, SEE EVIDENCE OF SPOUSES IN CRIMINAL CASES, 99 SOL.  J. 551. 
SEE ALSO NOKES, EVIDENCE, A CENTURY OF FAMILY LAW (GRAVESON AND CRANE
ED.), 146-149; SCOTS L.T. (1956), 145.  COMPARE LEACH V. REX, (1912)
A.C. 305, WITH REX.  V. LAPWORTH, (1931) 1 K.B. 117.  THE EXPERIENCE OF
THE ALABAMA SUPREME COURT IS INSTRUCTIVE.  THAT COURT, IN AN "EXCEPTION
OF NECESSITY" CASE, HELD THAT THE WIFE WAS NOT ONLY COMPETENT TO
TESTIFY, BUT ALSO COMPELLABLE.  JOHNSON V. STATE, 94 ALA. 53, 10 SO.
427.  THE ALABAMA LEGISLATURE, HOWEVER, ABOLISHED THIS DECISION BY
STATUTE.  ALA. CODE, 1940, TIT. 15, SEC. 311. 

FN5  SEE THE SOURCES CITED IN NOTE 4, SUPRA.  TO BE SURE, THE
PRIVILEGE HAS BEEN STRONGLY ATTACKED BY COMMENTATORS, MOST OF WHOM RELY
UPON WIGMORE'S TREATISE.  WIGMORE'S LENGTHY CRITICISM OF THE PRIVILEGE
IS BEST SUMMARIZED IN HIS OWN WORDS: 

"THIS PRIVILEGE HAS NO LONGER ANY GOOD REASON FOR RETENTION.  IN AN
AGE WHICH HAS SO FAR RATIONALIZED, DEPOLARIZED, AND DE-CHIVALRIZED THE
MARITAL RELATION AND THE SPIRIT OF FEMININITY AS TO BE WILLING TO ENACT
COMPLETE LEGAL AND POLITICAL EQUALITY AND INDEPENDENCE OF MAN AND
WOMAN, THIS MARITAL PRIVILEGE IS THE MEREST ANACHRONISM, IN LEGAL
THEORY, AND AN INDEFENSIBLE OBSTRUCTION TO TRUTH, IN PRACTICE."  8
WIGMORE, EVIDENCE, 232. 

IT IS ARGUABLE THAT THIS IS MUCH AN IPSE DIXIT AS THE STATEMENTS IN
FAVOR OF THE RULE WHICH WIGMORE CRITICIZES UPON THAT VERY GROUND.  ID.,
AT 226-228.  IN ANY EVENT, IT IS EVIDENT THAT HIS CONCLUSION INVOLVES
VALUE JUDGMENTS WHICH THE LEGISLATURE IS FAR BETTER ADAPTED TO ACCEPT
OR REJECT THAN THE JUDICIARY. 

FOR A VIEW CONTRASTING WITH WIGMORE'S, SEE BASSETT V. UNITED STATES,
137 U.S. 496, 505-506, WHERE THIS COURT NARROWLY CONSTRUED A
LEGISLATIVE PROVISION REGARDING THE PRIVILEGE: 

"WE DO NOT DOUBT THE POWER OF THE LEGISLATURE TO CHANGE THIS ANCIENT
AND WELL-SUPPORTED RULE; BUT AN INTENTION TO MAKE SUCH A CHANGE SHOULD
NOT LIGHTLY BE IMPUTED.  IT CANNOT BE ASSUMED THAT IT IS INDIFFERENT TO
SACRED THINGS, OR THAT IT MEANS TO LOWER THE HOLY RELATIONS OF HUSBAND
AND WIFE TO THE MATERIAL PLANE OF SIMPLE CONTRACT.  SO, BEFORE ANY
DEPARTURE FROM THE RULE AFFIRMED THROUGH THE AGES OF THE COMMON LAW
...  CAN BE ADJUDGED, THE LANGUAGE DECLARING THE LEGISLATIVE WILL
SHOULD BE SO CLEAR AS TO PREVENT DOUBT AS TO ITS INTENT AND LIMIT." 

FN6  THE NATURE OF RELEVANT ACTION BY CONGRESS AND BY THE STATE
LEGISLATURES, SEE NOTE 4, SUPRA, DISTINGUISHES THIS CASE FROM FUNK V.
UNITED STATES, 290 U.S. 371, WHICH HELD THAT ONE SPOUSE WAS COMPETENT
TO TESTIFY ON BEHALF OF THE OTHER IN A CRIMINAL TRIAL.  AS THE COURT
THERE POINTED OUT, THE DISQUALIFICATION WAS BASED UPON INTEREST, AND
"THE RULES OF THE COMMON LAW WHICH DISQUALIFIED AS WITNESSES PERSONS
HAVING AN INTEREST, LONG SINCE, IN THE MAIN, HAVE BEEN ABOLISHED BOTH
IN ENGLAND AND IN THIS COUNTRY  ...  ."  ID., AT 380.  THE CONTRAST
BETWEEN THIS CASE AND FUNK, WHERE THE COURT WAS ABLE TO RELY UPON "THE
GENERAL CURRENT OF LEGISLATION AND OF JUDICIAL OPINION," ID., AT 381,
IS STRIKING.  IN THIS CONNECTION, PERHAPS IT SHOULD BE EMPHASIZED THAT
THE FEDERAL DECISIONS CITED IN NOTE 2 OF THE COURT'S OPINION STAND, AS
THE COURT INDICATES, ONLY FOR THE PROPOSITION THAT A MANN ACT
PROSECUTION FALLS WITHIN THE COMMON-LAW EXCEPTION SO THAT THE WIFE MAY
TESTIFY, AND NOT FOR THE RULE THAT A WIFE IN SUCH A CASE MAY BE
COMPELLED TO TESTIFY.  BUT SEE SHORES V. UNITED STATES, 174 F.2D 838,
841, WHERE THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT STATED IN DICTA
THAT THE WIFE MAY BE COMPELLED TO TESTIFY IN ANY EXCEPTION CASE - A
VIEW MUCH BROADER THAN THAT HERE ADOPTED BY THIS COURT. 

FN7  THIS SEEMS TO BE THE PLAIN MEANING OF THE STATUTORY LANGUAGE,
THOUGH SIMILAR LANGUAGE IN STATE STATUTES HAS RECEIVED BOTH BROAD AND
NARROW CONSTRUCTIONS.  COMPARE MCCORMICK V. STATE, 135 TENN. 218, 186
S.W. 95, WITH RICHARDSON V. STATE, 103 MD. 112, 117, 63 A. 317, 319
320.  FOR THE VIEW OF AN ENGLISH COURT, SEE LEACH V. REX, (1912) A.C.
305, 311 (NOT COMPELLABLE)("THE PRINCIPLE THAT A WIFE IS NOT TO BE
COMPELLED TO GIVE EVIDENCE AGAINST HER HUSBAND IS DEEP SEATED IN THE
COMMON LAW OF THIS COUNTRY, AND I THINK IF IT IS TO BE OVERTURNED IT
MUST BE OVERTURNED BY A CLEAR, DEFINITE, AND POSITIVE ENACTMENT, NOT BY
AN AMBIGUOUS ONE  ...  ."  LORD ATKINSON).  SEE ALSO 8 WIGMORE,
EVIDENCE, SEC. 2245(A); NOTE, 38 VA. L. REV. 359, 362-363. 
..END :







MITCHELL V. TRAWLER RACER, INC. 362 U.S. 539 


NO. 176.  ARGUED JANUARY 21, 1960 - DECIDED MAY 16, 1960 - 265 F.2D 426,
REVERSED. 


IN AN ACTION BY A SEAMAN WHO WAS A MEMBER OF THE CREW OF A FISHING
TRAWLER TO RECOVER DAMAGES FOR PERSONAL INJURIES SUSTAINED AS A RESULT
OF UNSEAWORTHINESS DUE TO THE TEMPORARY PRESENCE ON THE SHIP'S RAIL OF
SLIME AND FISH GURRY REMAINING THERE FROM RECENT UNLOADING OPERATIONS,
THE SHIPOWNER'S ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE TEMPORARY
UNSEAWORTHY CONDITION IS NOT AN ESSENTIAL ELEMENT OF THE SEAMAN'S
CASE.  PP. 539-550. 

(A)  A SHIPOWNER'S DUTY TO FURNISH A SEAWORTHY SHIP IS ABSOLUTE AND
IT IS NOT LIMITED BY CONCEPTS OF COMMON-LAW NEGLIGENCE.  PP. 542-549. 

(B)  LIABILITY OF THE SHIPOWNER FOR A TEMPORARY UNSEAWORTHY CONDITION
IS NOT DIFFERENT FROM THE LIABILITY WHICH ATTACHES WHEN THE UNSEAWORTHY
CONDITION IS PERMANENT.  PP. 549-550. 

MITCHELL V. TRAWLER RACER, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS A MEMBER OF THE CREW OF THE BOSTON FISHING TRAWLER
RACER, OWNED AND OPERATED BY THE RESPONDENT.  ON APRIL 1, 1957, THE
VESSEL RETURNED TO HER HOME PORT FROM A 10-DAY VOYAGE TO THE NORTH
ATLANTIC FISHING GROUNDS, LOADED WITH A CATCH OF FISH AND FISH SPAWN. 
AFTER WORKING THAT MORNING WITH HIS FELLOW CREW MEMBERS IN UNLOADING
THE SPAWN, (FN1) THE PETITIONER CHANGED HIS CLOTHES AND CAME ON DECK TO
GO ASHORE.  HE MADE HIS WAY TO THE SIDE OF THE VESSEL WHICH ABUTTED THE
DOCK, AND IN ACCORD WITH RECOGNIZED CUSTOM STEPPED ONTO THE SHIP'S RAIL
IN ORDER TO REACH A LADDER ATTACHED TO THE PIER.  HE WAS INJURED WHEN
HIS FOOT SLIPPED OFF THE RAIL AS HE GRASPED THE LADDER. 

TO RECOVER FOR HIS INJURIES HE FILED THIS ACTION FOR DAMAGES IN A
COMPLAINT CONTAINING THREE COUNTS:  THE FIRST UNDER THE JONES ACT,
ALLEGING NEGLIGENCE; THE SECOND ALLEGING UNSEAWORTHINESS; AND THE THIRD
FOR MAINTENANCE AND CURE.  AT THE TRIAL THERE WAS EVIDENCE TO SHOW THAT
THE SHIP'S RAIL WHERE THE PETITIONER HAD LOST HIS FOOTING WAS COVERED
FOR A DISTANCE OF 10 OR 12 FEET WITH SLIME AND FISH GURRY, APPARENTLY
REMAINING THERE FROM THE EARLIER UNLOADING OPERATIONS. 

THE DISTRICT JUDGE INSTRUCTED THE JURY THAT IN ORDER TO ALLOW
RECOVERY UPON EITHER THE NEGLIGENCE OR UNSEAWORTHINESS COUNT, THEY MUST
FIND THAT THE SLIME AND GURRY HAD BEEN ON THE SHIP'S RAIL FOR A PERIOD
OF TIME LONG ENOUGH FOR THE RESPONDENT TO HAVE LEARNED ABOUT IT AND TO
HAVE REMOVED IT. (FN2)  COUNSEL FOR THE PETITIONER REQUESTED THAT THE
TRIAL JUDGE DISTINGUISH BETWEEN NEGLIGENCE AND UNSEAWORTHINESS IN THIS
RESPECT, AND SPECIFICALLY REQUESTED HIM TO INSTRUCT THE JURY THAT
NOTICE WAS NOT A NECESSARY ELEMENT IN PROVING LIABILITY BASED UPON
UNSEAWORTHINESS OF THE VESSEL.  THIS REQUEST WAS DENIED.  (FN3)  THE
JURY AWARDED THE PETITIONER MAINTENANCE AND CURE, BUT FOUND FOR THE
RESPONDENT SHIPOWNER ON BOTH THE NEGLIGENCE AND UNSEAWORTHINESS
COUNTS. 

AN APPEAL WAS TAKEN UPON THE SOLE GROUND THAT THE DISTRICT JUDGE HAD
BEEN IN ERROR IN INSTRUCTING THE JURY THAT CONSTRUCTIVE NOTICE WAS
NECESSARY TO SUPPORT LIABILITY FOR UNSEAWORTHINESS.  THE COURT OF
APPEALS AFFIRMED, HOLDING THAT AT LEAST WITH RESPECT TO "AN UNSEAWORTHY
CONDITION WHICH ARISES ONLY DURING THE PROGRESS OF THE VOYAGE," THE
SHIPOWNER'S OBLIGATION "IS MERELY TO SEE THAT REASONABLE CARE IS USED
UNDER THE CIRCUMSTANCES  ...  INCIDENT TO THE CORRECTION OF THE NEWLY
ARISEN DEFECT."  265 F.2D 426, 432.  CERTIORARI WAS GRANTED, 361 U.S.
808, TO CONSIDER A QUESTION OF MARITIME LAW UPON WHICH THE COURTS OF
APPEALS HAVE EXPRESSED DIFFERING VIEWS.  COMPARE COOKINGHAM V. UNITED
STATES, 184 F.2D 213 (C.A. 3D CIR.), WITH JOHNSON LINE V. MALONEY, 243
F.2D 293 (C.A. 9TH CIR.), AND POIGNANT V. UNITED STATES, 225 F.2D 595
(C.A.2D CIR.). 

IN ITS PRESENT POSTURE THIS CASE THUS PRESENTS THE SINGLE ISSUE
WHETHER WITH RESPECT TO SO-CALLED "TRANSITORY" UNSEAWORTHINESS THE
SHIPOWNER'S LIABILITY IS LIMITED BY CONCEPTS OF COMMON-LAW NEGLIGENCE. 
THERE ARE HERE NO PROBLEMS, SUCH AS HAVE RECENTLY ENGAGED THE COURT'S
ATTENTION, WITH RESPECT TO THE PETITIONER'S STATUS AS A "SEAMAN."  CF.
SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85; POPE & TALBOT, INC., V.
HAWN, 346 U.S. 406; UNITED PILOTS ASSN. V. HALECKI, 358 U.S. 613, OR AS
TO THE STATUS OF THE VESSEL ITSELF.  CF. WEST V. UNITED STATES, 361
U.S. 118.  THE RACER WAS IN ACTIVE MARITIME OPERATION, AND THE
PETITIONER WAS A MEMBER OF HER CREW.  (FN4) 

THE ORIGIN OF A SEAMAN'S RIGHT TO RECOVER FOR INJURIES CAUSED BY AN
UNSEAWORTHY SHIP IS FAR FROM CLEAR.  THE EARLIEST CODIFICATIONS OF THE
LAW OF THE SEA PROVIDED ONLY THE EQUIVALENT OF MAINTENANCE AND CURE -
MEDICAL TREATMENT AND WAGES TO A MARINER WOUNDED OR FALLING ILL IN THE
SERVICE OF THE SHIP.  MARKEDLY SIMILAR PROVISIONS GRANTING RELIEF OF
THIS NATURE ARE TO BE FOUNDS IN THE LAWS OF OLERON, PROMULGATED ABOUT
1150 A.D. BY ELEANOR, DUCHESS OF GUIENNE; IN THE LAWS OF WISBUY,
PUBLISHED IN THE FOLLOWING CENTURY; IN THE LAWS OF THE HANSE TOWNS,
WHICH APPEARED IN 1597; AND IN THE MARINE ORDINANCES OF LOUIS XIV,
PUBLISHED IN 1681.  (FN5) 

FOR MANY YEARS AMERICAN COURTS REGARDED THESE ANCIENT CODES AS
ESTABLISHING THE LIMITS OF A SHIPOWNER'S LIABILITY TO A SEAMAN INJURED
IN THE SERVICE OF HIS VESSEL.  HARDEN V. GORDON, 2 MASON 541; THE BRIG
GEORGE, 1 SUMNER 151; REED V. CANFIELD, 1 SUMNER 195.  (FN6)  DURING
THIS EARLY PERIOD THE MARITIME LAW WAS CONCERNED WITH THE CONCEPT OF
UNSEAWORTHINESS ONLY WITH REFERENCE TO TWO SITUATIONS QUITE UNRELATED
TO THE RIGHT OF A CREW MEMBER TO RECOVER FOR PERSONAL INJURIES.  THE
EARLIEST MENTION OF UNSEAWORTHINESS IN AMERICAN JUDICIAL OPINIONS
APPEARS IN CASES IN WHICH MARINERS WERE SUING FOR THEIR WAGES.  THEY
WERE REQUIRED TO PROVE THE UNSEAWORTHINESS OF THE VESSEL TO EXCUSE
THEIR DESERTION OR MISCONDUCT WHICH OTHERWISE WOULD RESULT IN A
FORFEITURE OF THEIR RIGHT TO WAGES.  SEE DIXON V. THE CYRUS, 7 FED.
CAS. 755, NO. 3,930; RICE V. THE POLLY & KITTY, 20 FED. CAS. 666, NO.
11,754; THE MOSLEM, 17 FED. CAS. 894, NO. 9,875.  THE OTHER ROUTE
THROUGH WHICH THE CONCEPT OF UNSEAWORTHINESS FOUND ITS WAY INTO THE
MARITIME LAW WAS VIA THE RULES COVERING MARINE INSURANCE AND THE
CARRIAGE OF GOODS BY SEA.  THE CALEDONIA, 157 U.S. 124; THE SILVIA, 171
U.S. 462; THE SOUTHWARK, 191 U.S. 1; I PARSONS ON MARINE INSURANCE
(1868) 367-400. 

NOT UNTIL THE LATE NINETEENTH CENTURY DID THERE DEVELOP IN AMERICAN
ADMIRALTY COURTS THE DOCTRINE THAT SEAMEN HAD A RIGHT TO RECOVER FOR
PERSONAL INJURIES BEYOND MAINTENANCE AND CURE.  DURING THAT PERIOD IT
BECAME GENERALLY ACCEPTED THAT A SHIPOWNER WAS LIABLE TO A MARINER
INJURED IN THE SERVICE OF A SHIP AS A CONSEQUENCE OF THE OWNER'S
FAILURE TO EXERCISE DUE DILIGENCE.  THE DECISIONS OF THAT ERA FOR THE
MOST PART TREATED MARITIME INJURY CASES ON THE SAME FOOTING AS CASES
INVOLVING THE DUTY OF A SHORESIDE EMPLOYER TO EXERCISE ORDINARY CARE TO
PROVIDE HIS EMPLOYEES WITH A REASONABLY SAFE PLACE TO WORK.  BROWN V.
THE D.S. CAGE, 4 FED. CAS. 367, NO. 2002; HALVERSON V. NISEN, 11 FED.
CAS. 310, NO. 5970; THE NODDLEBURN, 28 FED. 855; THE NEPTUNO, 30 FED.
925; THE LIZZIE FRANK, 31 FED. 477; THE FLOWERGATE, 31 FED. 762; THE A.
HEATON, 43 FED. 592; THE JULIA FOWLER, 49 FED. 277; THE CONCORD, 58
FED. 913; THE FRANCE, 59 FED. 479; THE ROBERT C. MCQUILLEN, 91 FED.
685. 

ALTHOUGH SOME COURTS HELD SHIPOWNERS LIABLE FOR INJURIES CAUSED BY
"ACTIVE" NEGLIGENCE, THE EDITH GODDEN, 23 FED. 43; THE FRANK & WILLIE,
45 FED. 494, IT WAS HELD IN THE CITY OF ALEXANDRIA, 17 FED. 390, IN A
THOROUGH OPINION BY JUDGE ADDISON BROWN, THAT THE OWNER WAS NOT LIABLE
FOR NEGLIGENCE WHICH DID NOT RENDER THE SHIP OR HER APPLIANCES
UNSEAWORTHY.  A CLOSELY RELATED LIMITATION UPON THE OWNER'S LIABILITY
WAS THAT IMPOSED BY THE FELLOW-SERVANT DOCTRINE.  THE SACHEM, 42 FED.
66.  (FN7) 

THIS WAS THE HISTORICAL BACKGROUND BEHIND MR. JUSTICE BROWN'S MUCH
QUOTED SECOND PROPOSITION IN THE OSCEOLA, 189 U.S. 158, 175:  "THAT THE
VESSEL AND HER OWNER ARE, BOTH BY ENGLISH AND AMERICAN LAW, LIABLE TO
AN INDEMNITY FOR INJURIES RECEIVED BY SEAMEN IN CONSEQUENCE OF THE
UNSEAWORTHINESS OF THE SHIP, OR A FAILURE TO SUPPLY AND KEEP IN ORDER
THE PROPER APPLIANCES APPURTENANT TO THE SHIP."  IN SUPPORT OF THIS
PROPOSITION THE COURT'S OPINION NOTED THAT "IT WILL BE OBSERVED IN
THESE CASES THAT A DEPARTURE HAS BEEN MADE FROM THE CONTINENTAL CODES
IN ALLOWING AN INDEMNITY BEYOND THE EXPENSE OF MAINTENANCE AND CURE IN
CASES ARISING FROM UNSEAWORTHINESS.  THIS DEPARTURE ORIGINATED IN
ENGLAND IN THE MERCHANTS' SHIPPING ACT OF 1876  ...  AND IN THIS
COUNTRY, IN A GENERAL CONSENSUS OF OPINION AMONG THE CIRCUIT AND
DISTRICT COURTS, THAT AN EXCEPTION SHOULD BE MADE FROM THE GENERAL
PRINCIPLE BEFORE OBTAINING, IN FAVOR OF SEAMEN SUFFERING INJURY THROUGH
THE UNSEAWORTHINESS OF THE VESSEL.  WE ARE NOT DISPOSED TO DISTURB SO
WHOLESOME A DOCTRINE BY ANY CONTRARY DECISION OF OUR OWN."  189 U.S.,
AT 175. 

IT IS ARGUABLE THAT THE IMPORT OF THE ABOVE-QUOTED SECOND PROPOSITION
IN THE OSCEOLA WAS NOT TO BROADEN THE SHIPOWNER'S LIABILITY, BUT,
RATHER, TO LIMIT LIABILITY FOR NEGLIGENCE TO THOSE SITUATIONS WHERE HIS
NEGLIGENCE RESULTED IN THE VESSEL'S UNSEAWORTHINESS.  SUPPORT FOR SUCH
A VIEW IS TO BE FOUND NOT ONLY IN THE HISTORIC CONTEXT IN WHICH THE
OSCEOLA WAS DECIDED, BUT IN THE DISCUSSION IN THE BALANCE OF THE
OPINION, IN THE DECISION ITSELF (IN FAVOR OF THE SHIPOWNER), AND IN THE
EQUATION WHICH THE COURT DREW WITH THE LAW OF ENGLAND, WHERE THE
MERCHANT SHIPPING ACT OF 1876 IMPOSED UPON THE OWNER ONLY THE DUTY TO
USE "ALL REASONABLE MEANS" TO "INSURE THE SEAWORTHINESS OF THE SHIP." 
THIS LIMITED VIEW OF THE OSCEOLA'S PRONOUNCEMENT AS TO LIABILITY FOR
UNSEAWORTHINESS MAY BE THE BASIS FOR SUBSEQUENT DECISIONS OF FEDERAL
COURTS EXONERATING SHIPOWNERS FROM RESPONSIBILITY FOR THE NEGLIGENCE OF
THEIR AGENTS BECAUSE THAT NEGLIGENCE HAD NOT RENDERED THE VESSEL
UNSEAWORTHY.  THE HENRY B. FISKE, 141 FED. 188; TROPICAL FRUIT S.S CO.
V. TOWLE, 222 FED. 867; JOHN A. ROEBLING'S SONS CO. V. ERICKSON, 261
FED. 986.  SUCH A READING OF THE OSCEOLA OPINION ALSO FINDS ARGUABLE
SUPPORT IN SEVERAL SUBSEQUENT DECISIONS OF THIS COURT.  BALTIMORE S.S.
CO. V. PHILLIPS, 274 U.S. 316; PLAMALS V. THE PINAR DEL RIO, 277 U.S.
151; PACIFIC CO. V. PETERSON, 278 U.S. 130.  (FN8)  IN ANY EVENT, WITH
THE PASSAGE OF THE JONES ACT IN 1920, 41 STAT. 1007, 46 U.S.C. SEC.
688, CONGRESS EFFECTIVELY OBLITERATED ALL DISTINCTIONS BETWEEN THE
KINDS OF NEGLIGENCE FOR WHICH THE SHIPOWNER IS LIABLE, AS WELL AS
LIMITATIONS IMPOSED BY THE FELLOW-SERVANT DOCTRINE, BY EXTENDING TO
SEAMEN THE REMEDIES MADE AVAILABLE TO RAILROAD WORKERS UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT.  (FN9) 

THE FIRST REFERENCE IN THIS COURT TO THE SHIPOWNER'S OBLIGATION TO
FURNISH A SEAWORTHY SHIP AS EXPLICITLY UNRELATED TO THE STANDARD OF
ORDINARY CARE IN A PERSONAL INJURY CASE APPEARS IN CARLISLE PACKING CO.
V. SANDANGER, 259 U.S. 255.  THERE IT WAS SAID "WE THINK THE TRIAL
COURT MIGHT HAVE TOLD THE JURY THAT WITHOUT REGARD TO NEGLIGENCE THE
VESSEL WAS UNSEAWORTHY WHEN SHE LEFT THE DOCK  ... AND THAT IF THUS
UNSEAWORTHY AND ONE OF THE CREW RECEIVED DAMAGE AS THE DIRECT RESULT
THEREOF, HE WAS ENTITLED TO RECOVER COMPENSATORY DAMAGES."  259 U.S.,
AT 259.  THIS CHARACTERIZATION OF UNSEAWORTHINESS AS UNRELATED TO
NEGLIGENCE WAS PROBABLY NOT NECESSARY TO THE DECISION IN THAT CASE,
WHERE THE RESPONDENT'S INJURIES HAD CLEARLY IN FACT BEEN CAUSED BY
FAILURE TO EXERCISE ORDINARY CARE (PUTTING GASOLINE IN A CAN LABELED
"COAL OIL" AND NEGLECTING TO PROVIDE THE VESSEL WITH LIFE PRESERVERS). 
YET THERE IS NO REASON TO SUPPOSE THAT THE COURT'S LANGUAGE WAS
INADVERTENT.  (FN10) 

DURING THE TWO DECADES THAT FOLLOWED THE CARLISLE DECISION THERE CAME
TO BE A GENERAL ACCEPTANCE OF THE VIEW THAT THE OSCEOLA HAD ENUNCIATED
A CONCEPT OF ABSOLUTE LIABILITY FOR UNSEAWORTHINESS UNRELATED TO
PRINCIPLES OF NEGLIGENCE LAW.  PERSONAL INJURY LITIGATION BASED UPON
UNSEAWORTHINESS WAS SUBSTANTIAL.  SEE, GILMORE AND BLACK, THE LAW OF
ADMIRALTY (1957), P. 316.  AND THE STANDARD TEXTS ACCEPTED THAT THEORY
OF LIABILITY WITHOUT QUESTION.  SEE BENEDICT, THE LAW OF AMERICAN
ADMIRALTY (6TH ED., 1940), VOL. I, SEC. 83; ROBINSON, ADMIRALTY LAW
(1939), P. 303 ET SEQ. PERHAPS THE CLEAREST EXPRESSION APPEARED IN
JUDGE AUGUSTUS HAND'S OPINION IN THE H.A. SCANDRETT, 87 F.2D 708: 

"IN OUR OPINION THE LIBELANT HAD A RIGHT OF INDEMNITY FOR INJURIES
ARISING FROM AN UNSEAWORTHY SHIP EVEN THOUGH THERE WAS NO MEANS OF
ANTICIPATING TROUBLE. 

"THE SHIP IS NOT FREED FROM LIABILITY BY MERE DUE DILIGENCE TO RENDER
HER SEAWORTHY AS MAY BE THE CASE UNDER THE HARTER ACT (46 U.S.C.A.
SECS. 190-195) WHERE LOSS RESULTS FROM FAULTS IN NAVIGATION, BUT UNDER
THE MARITIME LAW THERE IS AN ABSOLUTE OBLIGATION TO PROVIDE A SEAWORTHY
VESSEL AND, IN DEFAULT THEREOF, LIABILITY FOLLOWS FOR ANY INJURIES
CAUSED BY BREACH OF THE OBLIGATION."  87 F.2D, AT 711. 

IN 1944 THIS COURT DECIDED MAHNICH V. SOUTHERN S.S. CO., 321 U.S.
96.  WHILE IT IS POSSIBLE TO TAKE A NARROW VIEW OF THE PRECISE HOLDING
IN THAT CASE, (FN11) THE FACT IS THAT MAHNICH STANDS AS A LANDMARK IN
THE DEVELOPMENT OF ADMIRALTY LAW.  CHIEF JUSTICE STONE'S OPINION IN
THAT CASE GAVE AN UNQUALIFIED STAMP OF SOLID AUTHORITY TO THE VIEW THAT
THE OSCEOLA WAS CORRECTLY TO BE UNDERSTOOD AS HOLDING THAT THE DUTY TO
PROVIDE A SEAWORTHY SHIP DEPENDS NOT AT ALL UPON THE NEGLIGENCE OF THE
SHIPOWNER OR HIS AGENTS.  MOREOVER, THE DISSENT IN MAHNICH ACCEPTED
THIS READING OF THE OSCEOLA AND CLAIMED NO MORE THAN THAT THE INJURY IN
MAHNICH WAS NOT PROPERLY ATTRIBUTABLE TO UNSEAWORTHINESS.  SEE 321
U.S., AT 105-113. 

IN SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85, THE COURT EFFECTIVELY
SCOTCHED ANY DOUBTS THAT MIGHT HAVE LINGERED AFTER MAHNICH AS TO THE
NATURE OF THE SHIPOWNER'S DUTY TO PROVIDE A SEAWORTHY VESSEL.  THE
CHARACTER OF THE DUTY, SAID THE COURT, IS "ABSOLUTE."  "IT IS
ESSENTIALLY A SPECIES OF LIABILITY WITHOUT FAULT, ANALOGOUS TO OTHER
WELL KNOWN INSTANCES IN OUR LAW.  DERIVED FROM AND SHAPED TO MEET THE
HAZARDS WHICH PERFORMING THE SERVICE IMPOSES, THE LIABILITY IS NEITHER
LIMITED BY CONCEPTIONS OF NEGLIGENCE NOR CONTRACTUAL IN CHARACTER  ...
.  IT IS A FORM OF ABSOLUTE DUTY OWING TO ALL WITHIN THE RANGE OF ITS
HUMANITARIAN POLICY."  328 U.S., AT 94-95.  THE DISSENTING OPINION
AGREED AS TO THE NATURE OF THE SHIPOWNER'S DUTY.  "DUE DILIGENCE OF THE
OWNER," IT SAID, "DOES NOT RELIEVE HIM FROM THIS OBLIGATION."  328
U.S., AT 104.    FROM THAT DAY TO THIS, THE DECISIONS OF THIS COURT
HAVE UNDEVIATINGLY REFLECTED AN UNDERSTANDING THAT THE OWNER'S DUTY TO
FURNISH A SEAWORTHY SHIP IS ABSOLUTE AND COMPLETELY INDEPENDENT OF HIS
DUTY UNDER THE JONES ACT TO EXERCISE REASONABLE CARE.  POPE & TALBOT,
INC., V. HAWN, 346 U.S. 406; ALASKA STEAMSHIP CO. V. PETTERSON, 347
U.S. 396; ROGERS V. UNITED STATES LINES, 347 U.S. 984; BOUDOIN V. LYKES
BROS. S.S. CO., 348 U.S. 336; CRUMADY V. THE J.H. FISSER, 358 U.S. 423;
UNITED PILOTS ASSN. V. HALECKI, 358 U.S. 613. 

THERE IS NO SUGGESTION IN ANY OF THE DECISIONS THAT THE DUTY IS LESS
ONEROUS WITH RESPECT TO AN UNSEAWORTHY CONDITION ARISING AFTER THE
VESSEL LEAVES HER HOME PORT, OR THAT THE DUTY IS ANY LESS WITH RESPECT
TO AN UNSEAWORTHY CONDITION WHICH MAY BE ONLY TEMPORARY.  OF PARTICULAR
RELEVANCE HERE IS ALASKA STEAMSHIP CO. V. PETTERSON, SUPRA.  IN THAT
CASE THE COURT AFFIRMED A JUDGMENT HOLDING THE SHIPOWNER LIABLE FOR
INJURIES CAUSED BY DEFECTIVE EQUIPMENT TEMPORARILY BROUGHT ON BOARD BY
AN INDEPENDENT CONTRACTOR OVER WHICH THE OWNER HAD NO CONTROL.  THAT
DECISION IS THUS SPECIFIC AUTHORITY FOR THE PROPOSITION THAT THE
SHIPOWNER'S ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE UNSEAWORTHY
CONDITION IS NOT ESSENTIAL TO HIS LIABILITY.  THAT DECISION ALSO
EFFECTIVELY DISPOSES OF THE SUGGESTION THAT LIABILITY FOR A TEMPORARY
UNSEAWORTHY CONDITION IS DIFFERENT FROM THE LIABILITY THAT ATTACHES
WHEN THE CONDITION IS PERMANENT.  (FN12) 

THERE IS AMPLE ROOM FOR ARGUMENT, IN THE LIGHT OF HISTORY, AS TO HOW
THE LAW OF UNSEAWORTHINESS SHOULD HAVE OR COULD HAVE DEVELOPED.  SUCH
THEORIES MIGHT BE MADE TO FILL A VOLUME OF LOGIC.  BUT, IN VIEW OF THE
DECISIONS IN THIS COURT OVER THE LAST 15 YEARS, WE CAN FIND NO ROOM FOR
ARGUMENT AS TO WHAT THE LAW IS.  WHAT HAS EVOLVED IS A COMPLETE
DIVORCEMENT OF UNSEAWORTHINESS LIABILITY FROM CONCEPTS OF NEGLIGENCE. 
TO HOLD OTHERWISE NOW WOULD BE TO ERASE MORE THAN JUST A PAGE OF
HISTORY. 

WHAT HAS BEEN SAID IS NOT TO SUGGEST THAT THE OWNER IS OBLIGATED TO
FURNISH AN ACCIDENT-FREE SHIP.   THE DUTY IS ABSOLUTE, BUT IT IS A DUTY
ONLY TO FURNISH A VESSEL AND APPURTENANCES REASONABLY FIT FOR THEIR
INTENDED USE.  THE STANDARD IS NOT PERFECTION, BUT REASONABLE FITNESS;
NOT A SHIP THAT WILL WEATHER EVERY CONCEIVABLE STORM OR WITHSTAND EVERY
IMAGINABLE PERIL OF THE SEA, BUT A VESSEL REASONABLY SUITABLE FOR HER
INTENDED SERVICE.  BOUDOIN V. LYKES BROS.  S.S. CO., 348 U.S. 336. 

THE JUDGMENT MUST BE REVERSED, AND THE CASE REMANDED TO THE DISTRICT
COURT FOR A NEW TRIAL ON THE ISSUE OF UNSEAWORTHINESS.  REVERSED AND
REMANDED. 

FN1  IN ACCORDANCE WITH TRADITION, THE EMPLOYMENT AGREEMENT PROVIDED
THAT THE PROCEEDS FROM THE SALE OF THE FISH SPAWN SHOULD BE DIVIDED
AMONG THE MEMBERS OF THE CREW, NO PART THEREOF GOING TO THE OFFICERS OR
TO THE OWNER OF THE VESSEL. 

FN2  THE INSTRUCTIONS ON THIS ASPECT OF THE CASE WERE AS FOLLOWS:
"IN A CASE LIKE THIS WE HAVE THE ARGUMENT PRESENTED HERE, WHICH YOU DO
NOT HAVE TO BELIEVE, THAT THE SHIP WAS UNSEAWORTHY BECAUSE AT THE TIME
OF THE INJURY THERE WAS ON THE RAIL OF THE SHIP SOME KIND OF SLIME. 
WELL, IF THAT REALLY WAS THERE AND HAD BEEN THERE ANY PERIOD OF TIME,
AND IT CAUSED THE ACCIDENT, THEN YOU WOULD FIND AS A MATTER OF YOUR
CONCLUSION OF FACT, THAT UNSEAWORTHINESS CAUSED THE ACCIDENT. 

"I HAVEN'T TOLD YOU WHAT UNSEAWORTHINESS IS.  YOU WILL RECOGNIZE IT
IS SOMEWHAT OVERLAPPING AND ALTERNATIVE TO, INDEED QUITE SIMILAR TO,
NEGLIGENCE BECAUSE IT IS ONE OF THE OBLIGATIONS OF THE OWNER OF A SHIP
TO SEE TO IT THROUGH APPROPRIATE CAPTAINS, MATES, MEMBERS OF THE CREW,
OR SOMEONE, THAT THERE ISN'T LEFT UPON THE RAIL OF A SHIP, ESPECIALLY A
RAIL WHICH IS GOING TO BE UTILIZED FOR LEAVING THE SHIP, TO CLIMB THE
LADDER, ANY SORT OF SUBSTANCE SUCH AS SLIME. 

"IT DOESN'T MAKE ANY DIFFERENCE WHO PUTS IT THERE.  AS FAR AS THE
OWNER-OPERATOR OF THE VESSEL GOES, IT IS HIS JOB TO SEE IT DOES NOT
STAY THERE TOO LONG, IF HE KNOWS IT IS THE KIND OF PLACE, AS HE COULD
HAVE KNOWN HERE, WHICH IS USED BY MEMBERS OF THE CREW IN GETTING OFF
THE SHIP. 

"SO I THINK IT WOULD BE FAIR TO TELL YOU THE REAL NUB OF THIS CASE
WHICH I HOPE HAS NOT BEEN CLOUDED FOR YOU, THE REAL NUB OF THIS CASE
IS, WAS THERE ON THE RAIL SOME SLIME; WAS IT THERE FOR AN UNREASONABLY
LONG PERIOD OF TIME; WAS THERE A FAILURE ON THE PART OF THE OWNER
OPERATOR THROUGH APPROPRIATE AGENTS TO REMOVE IT; AND WAS THAT SLIME
THE CAUSE OF THE INJURY WHICH THE PLAINTIFF SUFFERED. 

     *         *         *         *         * 

"WAS THERE SOMETHING THERE AND WAS IT THERE FOR A REASONABLY LONG
PERIOD OF TIME SO THAT A SHIPOWNER OUGHT TO HAVE SEEN THAT IT WAS
REMOVED?  THAT IS THE QUESTION." 

FN3  "MR. KATZ:  MAY I MAKE A FURTHER REQUEST?  IN YOUR CHARGE YOU
SPECIFICALLY SAID 'AND WAS IT THERE FOR A REASONABLY LONG PERIOD OF
TIME SO THAT THE SHIPOWNER COULD HAVE HAD IT REMOVED.' 

"I SUBMIT THAT WOULD APPLY TO THE NEGLIGENCE COUNT ONLY BUT WITH
RESPECT TO UNSEAWORTHINESS, IF THERE IS AN UNSEAWORTHY CONDITION, THERE
IS AN ABSOLUTE SITUATION, THERE IS NO TIME REQUIRED.  IT IS THE ONLY: 

"THE COURT:  DENIED.  REFER TO THE CASE IN THE SECOND CIRCUIT." 

FN4  THE TRIAL JUDGE INSTRUCTED THE JURY AS FOLLOWS:  "IN THIS CASE,
ON THE BASIS OF RULINGS I MADE EARLIER, I HAVE INSTRUCTED YOU ON THE
UNDISPUTED FACT, MR. MITCHELL IS TO BE REGARDED AS BEING AN EMPLOYEE OF
THE DEFENDANT AND THEREFORE ENTITLED TO THOSE RIGHTS IF ANY WHICH FLOW
FROM THE MARITIME LAW AND FLOW FROM THE ACT OF CONGRESS." 

IN A MEMORANDUM FILED ALMOST A MONTH AFTER THE TRIAL, THE DISTRICT
JUDGE, APPARENTLY RELYING UPON THE FACT THAT THE SHIPOWNER HAD NO
DIRECT FINANCIAL INTEREST IN THE SPAWN WHICH HAD BEEN UNLOADED (SEE
NOTE 1, SUPRA), STATED THAT, "THERE SHOULD HAVE BEEN A DIRECTED VERDICT
FOR THE DEFENDANT ON THE UNSEAWORTHINESS COUNT.  IF THERE WERE SLIME ON
THE RAIL, IT WAS PUT THERE BY AN ASSOCIATE AND JOINT-VENTURER OF THE
PLAINTIFF AND NOT BY A STRANGER OR BY ANYONE ACTING FOR THE DEFENDANT. 
IF SAILOR A AND HIS WIFE GO ON BOARD, AND EACH OF THEM HAS A RIGHT TO
BE THERE, BUT THEY ARE ENGAGING IN A FROLIC OF THEIR OWN, NOT INTENDED
FOR THE PROFIT OR ADVANTAGE OF THIS SHIPOWNER, SAY, FOR EXAMPLE, THAT
THEY ARE MUNCHING TAFFY, AND THE WIFE DROPS THE TAFFY ON THE DECK, AND
THE SAILOR SLIPS ON IT, THE SAILOR, IF HE IS INJURED, IS NOT ENTITLED
TO COLLECT DAMAGES FROM THE SHIPOWNER.  IN SHORT, ABSOLUTE AS IS THE
LIABILITY FOR UNSEAWORTHINESS, IT DOES NOT SUBJECT THE SHIPOWNER TO
LIABILITY FROM ARTICLES DEPOSITED ON THIS SHIP BY A CO-ADVENTURER OF
THE PLAINTIFF."  BUT THIS THEORY PLAYED NO PART IN THE ISSUES DEVELOPED
AT THE TRIAL, WHERE THE DISTRICT JUDGE DENIED THE RESPONDENT'S MOTION
FOR A DIRECTED VERDICT AND INSTRUCTED THE JURY AS INDICATED ABOVE. 

FN5  ALL OF THESE EARLY MARITIME CODES ARE REPRINTED IN 30 FED. CAS.
1171-1216.  THE RELEVANT PROVISIONS ARE ARTICLES VI AND VII, OF THE
LAWS OF OLERON, 30 FED. CAS. 1174-1175; ARTICLES XVIII, XIX, AND
XXXIII, OF THE LAWS OF WISBUY, 30 FED. CAS. 1191, 1192; ARTICLES XXXIX
AND XLV OF THE LAWS OF THE HANSE TOWNS, 30 FED. CAS. 1200; AND TITLE
FOURTH, ARTICLES XI AND XII, OF THE MARINE ORDINANCES OF LOUIS XIV, 30
FED. CAS. 1209. 

FN6  AND, OF COURSE, THE VITALITY OF A SEAMAN'S RIGHT TO MAINTENANCE
AND CURE HAS NOT DIMINISHED THROUGH THE YEARS.  CALMAR S.S. CORP. V.
TAYLOR, 303 U.S. 525; WATERMAN S.S. CORP. V. JONES, 318 U.S. 724;
FARRELL V. UNITED STATES, 336 U.S. 511; WARREN V. UNITED STATES, 340
U.S. 523. 

FN7  FOR A MORE THOROUGH DISCUSSION OF THE HISTORY HERE SKETCHED SEE
TETREAULT, SEAMAN, SEAWORTHINESS, AND THE RIGHTS OF HARBOR WORKERS, 39
CORNELL L.Q. 381, 382-403; GILMORE AND BLACK, THE LAW OF ADMIRALTY
(1957), PP. 315-332.  SEE ALSO THE ILLUMINATING DISCUSSION IN THE
OPINION OF THEN CIRCUIT JUDGE HARLAN IN DIXON V. UNITED STATES, 219
F.2D 10, 12-15. 

FN8  WHERE IT WAS SAID "UNSEAWORTHINESS, AS IS WELL UNDERSTOOD,
EMBRACES CERTAIN SPECIES OF NEGLIGENCE; WHILE THE JONES ACT INCLUDES
SEVERAL ADDITIONAL SPECIES NOT EMBRACED IN THAT TERM."  278 U.S., AT
138. 

FN9  AN EARLIER LEGISLATIVE EFFORT TO BROADEN RECOVERY FOR INJURED
SEAMEN (THE LA FOLLETTE ACT OF 1915, 38 STAT. 1164, 1185) HAD BEEN
EMASCULATED IN CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372. 

FN10  AS ONE COMMENTATOR HAS CHOSEN TO REGARD IT.  SEE TETREAULT, OP.
CIT., SUPRA, NOTE 7, AT 394. 

FN11  I.E., AS SIMPLY OVERRULING THE DECISION IN PLAMALS V. THE PINAR
DEL RIO, 277 U.S. 151, THAT UNSEAWORTHINESS CANNOT INCLUDE "OPERATING
NEGLIGENCE."  SEE GILMORE AND BLACK, OP. CIT., SUPRA, AT 317. 

FN12  THE PERSUASIVE AUTHORITY OF PETTERSON IN A CASE VERY SIMILAR TO
THIS ONE HAS BEEN RECOGNIZED BY THE COURT OF APPEALS FOR THE SECOND
CIRCUIT.  POIGNANT V. UNITED STATES, 225 F.2D 595. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

NO AREA OF FEDERAL LAW IS JUDGE-MADE AT ITS SOURCE TO SUCH AN EXTENT
AS IS THE LAW OF ADMIRALTY.  THE EVOLUTION OF JUDGE-MADE LAW IS A
PROCESS OF ACCRETION AND EROSION.  WE ARE TOLD BY A GREAT MASTER THAT
LAW IS CIVILIZED TO THE EXTENT THAT IT IS PURPOSEFULLY CONSCIOUS. 
CONVERSELY, IF LAW JUST "GROW'D" LIKE TOPSY, UNREFLECTIVELY AND WITHOUT
CONSCIOUS DESIGN, IT IS IRRATIONAL.  WHEN IT APPEARS THAT A CHALLENGED
DOCTRINE HAS BEEN UNCRITICALLY ACCEPTED AS A MATTER OF COURSE BY THE
INERTIA OF REPETITION - HAS JUST "GROW'D" LIKE TOPSY - THE COURT OWES
IT TO THE DEMANDS OF REASON, ON WHICH JUDICIAL LAW-MAKING POWER
ULTIMATELY RESTS FOR ITS AUTHORITY, TO EXAMINE ITS FOUNDATIONS AND
VALIDITY IN ORDER APPROPRIATELY TO ASSESS CLAIMS FOR ITS EXTENSION. 

OUR LAW OF THE SEA HAS AN ANCIENT HISTORY.  WHILE IT HAS NOT BEEN
STATIC, THE NEEDS AND INTEREST OF THE INTERRELATED WORLD-WIDE SEABORNE
TRADE WHICH IT REFLECTS ARE VERY DEEPLY ROOTED IN THE PAST.  FOR THE
MOST PART IT HAS NOT UNDERGONE THE GREAT CHANGES ATTRIBUTABLE TO THE
EMERGENCE AND GROWTH OF INDUSTRIALIZED SOCIETY ON LAND.  IN THE LAW OF
THE SEA, THE CONTINUITY AND PERSISTENCE OF A DOCTRINE, PARTICULARLY ONE
WITH INTERNATIONAL TITLE-DEEDS, HAS SPECIAL SIGNIFICANCE. 

THE BIRTH OF THE CURRENT DOCTRINE OF UNSEAWORTHINESS, NOW
IMPRESSIVELY CHALLENGED BY CHIEF JUDGE MAGRUDER'S OPINION UNDER REVIEW,
CAN BE STATED PRECISELY:  IT OCCURRED ON MAY 29, 1922, IN CARLISLE
PACKING CO. V. SANDANGER, 259 U.S. 255.  THE ACTION WAS BROUGHT IN THE
WASHINGTON STATE COURTS BY SANDANGER, AN EMPLOYEE OF CARLISLE, WHO WAS
INJURED WHILE WORKING ON ITS MOTORBOAT ON A SIX- OR EIGHT-HOUR TRIP. 
THE INJURY OCCURRED WHEN HE LIGHTED FUEL FROM A CAN ON BOARD MARKED
"COAL OIL" IN ORDER TO START A COOKSTOVE, AND IT EXPLODED.  IT APPEARED
THEREAFTER THAT THE CAN HAD MISTAKENLY BEEN FILLED WITH GASOLINE.  IN A
SUIT BASED ON A CLAIM OF NEGLIGENCE, SANDANGER WON A VERDICT ON A
FINDING OF NEGLIGENCE, WHICH WAS CHALLENGED IN THE SUPREME COURT OF
WASHINGTON ON THE GROUND THAT THE EXCLUSIVELY APPLICABLE MARITIME LAW
DID NOT AFFORD RELIEF BY WAY OF COMPENSATION FOR NEGLIGENT INJURY OF AN
EMPLOYEE.  THE WASHINGTON COURT HELD THAT AN INJURY CAUSED BY A
NEGLIGENTLY CREATED UNSEAWORTHY CONDITION WAS COMPENSABLE, EVEN WHEN,
UNDER THE RULE LAID DOWN IN THE OSCEOLA, 189 U.S. 158, NEGLIGENT INJURY
WITHOUT UNSEAWORTHINESS WOULD NOT BE.  112 WASH. 480, 192 P. 1005. 

THE MATTER WAS DEALT WITH IN THIS COURT IN THE FEW LINES INNOVATING
THE RULE OF ABSOLUTE LIABILITY:  "WE THINK THE TRIAL COURT MIGHT HAVE
TOLD THE JURY THAT WITHOUT REGARD TO NEGLIGENCE THE VESSEL WAS
UNSEAWORTHY WHEN SHE LEFT THE DOCK  ...  AND THAT IF  ...  ONE OF THE
CREW RECEIVED DAMAGE AS THE DIRECT RESULT THEREOF, HE WAS ENTITLED TO
RECOVER COMPENSATORY DAMAGES."  259 U.S., AT 259.  (THE FULL TEXT IS
QUOTED IN THE MARGIN.)  (FN1) NO EXPLICATION ACCOMPANIED THIS DOGMATIC
PRONOUNCEMENT ON AN ISSUE NOT PRESENTED BY AN ISSUE OF THE AFFIRMED
JUDGMENT.  IT WAS STRANGELY DEEMED SUFFICIENT TO RELY ON THE
UNELABORATED CITATION OF TWO CASES IN THIS COURT (THE SILVIA, 171 U.S.
462, 464, AND THE SOUTHWARK, 191 U.S. 1, 8) WHICH WERE CONCERNED NOT
WITH THE RIGHTS OF SEAMEN BUT WITH THE SHIPOWNER'S LIABILITY FOR CARGO
DAMAGE.  THE ABRUPT, UNREASONED CONCLUSION WAS REACHED WITHOUT BENEFIT
OF ARGUMENT:  THE PARTIES HAD PRESENTED THE CASE SOLELY ON THE BASIS ON
WHICH THE ACTION WAS INSTITUTED AND IN THE TERMS IN WHICH IT HAD BEEN
DECIDED BY THE SUPREME COURT OF WASHINGTON - LIABILITY FOUNDED ON
NEGLIGENCE.  NEITHER OUR OWN INVESTIGATION NOR THAT OF THE PARTIES HERE
HAS DISCLOSED A SINGLE CASE IN AN ENGLISH OR AN AMERICAN COURT PRIOR TO
SANDANGER IN WHICH THE ABSOLUTE DUTY TO PROVIDE A SEAWORTHY VESSEL FOR
CARGO CARRIAGE AND MARINE INSURANCE CONTRACTS WAS APPLIED TO A SEAMAN'S
SUIT FOR PERSONAL INJURY.  SANDANGER WAS AN UNILLUMINED DEPARTURE IN
THE LAW OF THE SEA.  REASONED DECISION OF THE CASE BEFORE US, IN WHICH
EXTENSION IS SOUGHT OF A RULE SO DUBIOUSLY INITIATED, (FN2) REQUIRES
THAT ITS RATIONAL, HISTORICAL AND SOCIAL BASIS BE SCRUTINIZED AND NOT
MERELY ACCEPTED AS UNQUESTIONABLE DOGMA. 

WE MUST TAKE IT AS ESTABLISHED THAT THE PETITIONER, A SEAMAN EMPLOYED
ON THE RACER, FELL FROM HER RAIL WHILE USING IT AS A CUSTOMARY STEPPING
PLACE IN LEAVING THE VESSEL; THAT THE RESULTING INJURY WAS CAUSED BY
THE PRESENCE OF FISH SPAWN ON THE RAIL RENDERING IT SLIPPERY; THAT IT
WAS NOT NEGLIGENT FOR RESPONDENT TO ALLOW THE SPAWN TO GET ON AND
REMAIN ON THE RAIL. (FN3)  IT FURTHER APPEARS THAT THE SPAWN WAS
DEPOSITED ON THE RAIL SHORTLY BEFORE THE INJURY, WHEN BAGS OF IT WERE
HANDED ACROSS THE RAIL IN THE COURSE OF THE UNLOADING OF THE VESSEL. 
THE CLAIM NOW BEFORE THE COURT RESTED ON THE ALLEGED UNSEAWORTHINESS OF
THE VESSEL.  PETITIONER ASSERTS THAT IF THE PRESENCE OF SPAWN ON THE
RAIL RENDERED IT NOT REASONABLY FIT FOR ITS FUNCTION, THE, WITHOUT MORE
- AND PARTICULARLY WITHOUT REGARD TO THE LENGTH OF TIME THE SPAWN HAD
REMAINED ON THE RAIL - RESPONDENT WAS LIABLE TO COMPENSATE HIM FOR HIS
CONSEQUENT INJURIES.  HE ASSERTS THAT THESE CONCLUSIONS FLOW FROM THE
RULE OF SANDANGER, SUPRA, THAT THE OWNER'S LIABILITY TO COMPENSATE
SEAMEN FOR INJURIES CAUSED BY THE UNSEAWORTHINESS OF HIS VESSEL IS
"ABSOLUTE."    RESPONDENT CONTENDS, AND THE LOWER COURTS HELD, THAT THE
FACT THAT SPAWN ON THE RAIL CAUSED PETITIONER'S INJURY IS NOT, OF
ITSELF, SUFFICIENT TO ESTABLISH RESPONDENT'S LIABILITY.  IT URGES TWO
RELATED PROPOSITIONS IN THE ALTERNATIVE IN SUPPORT OF ITS JUDGMENT. 
THE FIRST OF THESE - THE EXPRESS GROUND OF JUDGE MAGRUDER'S DECISION
AND THE PRIMARY GROUND URGED HERE IN ITS SUPPORT - IS THAT SINCE THIS
UNSEAWORTHY CONDITION CONCEDEDLY DID NOT ARISE UNTIL AFTER THE
COMMENCEMENT OF THE VOYAGE IT DID NOT CREATE LIABILITY UNLESS IT
PERSISTED SO LONG BEFORE THE INJURY AS TO HAVE AFFORDED THE OWNER
NOTICE OF ITS EXISTENCE.  THIS VIEW MAKES LIABILITY FOR AN UNSEAWORTHY
CONDITION CREATED WITHOUT NEGLIGENCE AFTER THE START OF THE VOYAGE TURN
ON THE EXISTENCE OF NEGLIGENCE IN PERMITTING THE CONDITION TO PERSIST. 
RESPONDENT ALSO URGES THAT, EVEN IF NEGLIGENTLY CAUSED OR ALLOWED TO
PERSIST, THIS TRANSITORY HAZARD ARISING AFTER THE START OF THE VOYAGE
IN EQUIPMENT OTHERWISE SOUND WAS NOT AN UNSEAWORTHY CONDITION. 

WE ARE THUS CONFRONTED WITH TWO QUESTIONS OF THE NATURE AND SCOPE OF
THE DUTY OF A SHIPOWNER TO SEAMEN TO PROVIDE A SEAWORTHY SHIP.  THE
DECISION IN SANDANGER, SUPRA, IN LIGHT OF THE FACTS FROM WHICH ITS
GENERALIZATION WAS DRAWN, CERTAINLY DID NOT FORESHADOW THE RESULT URGED
BY PETITIONER, A RESULT CHARACTERIZED BY JUDGE MAGRUDER AS "STARTLINGLY
OPPOSED TO PRINCIPLE."  265 F.2D, AT 432.  THERE WAS IN THAT CASE NO
SUCH ANALYSIS OF THE REASONS UPON WHICH THE RULE ANNOUNCED WAS RESTED
AS TO GOVERN OR EVEN SUGGEST THE PRESENT DECISION.  THE COURT DOES NOT
DENY FORCE TO THE DISTINCTIONS URGED BY RESPONDENT, BUT REGARDS THE
QUESTIONS NOW PRESENTED AS FORECLOSED BY ALASKA S.S. CO. V. PETTERSON,
347 U.S. 396.  IN FACT, TODAY'S DECISION RESTS ON AN UNREVEALING PER
CURIAM OPINION, ITSELF FOUNDED ON PRIOR DECISIONS AFFORDING NO
JUSTIFICATION FOR THE RESULT HERE. 

AS THE OPINION OF THE COURT OF APPEALS SHOWS, 205 F.2D 478, THAT CASE
HELD A SHIPOWNER LIABLE FOR INJURIES TO A LONGSHOREMAN CAUSED BY
DEFECTIVE EQUIPMENT BROUGHT ON BOARD HIS VESSEL BY A CONTRACT STEVEDORE
FOR USE IN LOADING OPERATIONS.  THE OWNER GAVE THE STEVEDORE PERMISSION
AT HIS OPTION TO SUBSTITUTE HIS OWN EQUIPMENT FOR THAT OF THE VESSEL,
AND THE EQUIPMENT WHICH CAUSED THE INJURY WAS A SNATCH-BLOCK, STANDARD
SHIPS' EQUIPMENT, SUPPLIED PURSUANT TO THAT PERMISSION.  FOLLOWING SEAS
SHIPPING CO. V. SIERACKI, 328 U.S. 85, AND POPE & TALBOT V. HAWN, 346
U.S. 406, WHICH HAD HELD THAT THE OWNER'S DUTY TO PROVIDE A SEAWORTHY
SHIP RUNS TO NON-SEAMEN ENGAGED IN SEAMEN'S WORK, PETTERSON AT BEST
ADDED TO THIS DOCTRINE THE RULE THAT THAT DUTY COULD NOT BE DELEGATED
BY GIVING THE STEVEDORE CONTROL OVER LOADING OPERATIONS AND AN OPTION
TO SUBSTITUTE ITS OWN EQUIPMENT FOR THAT OF THE VESSEL.  THE PARTIES
DID NOT RAISE OR ARGUE EITHER (1) THAT THE VESSEL WAS SEAWORTHY AT THE
START OF HER VOYAGE AND NO ABSOLUTE LIABILITY ATTACHED TO SUBSEQUENTLY
ARISING CONDITIONS, OR (2) THAT BECAUSE THE CONDITION WAS TEMPORARY, IN
THE SENSE PERTINENT HERE, THERE WAS NO UNSEAWORTHINESS.   THERE IS
THEREFORE NO FOUNDATION, EITHER IN WHAT THE PER CURIAM REVEALED OR IN
THE HISTORY OF THE CASE, TO WARRANT THE INFERENCE THAT THE COURT WAS
CONSCIOUS OF THE DISTINCTIONS NOW SQUARELY PRESSED UPON US, MUCH LESS
THAT IT REJECTED THEM.  SUCH A CONCLUSION IS THE MORE FANCIFUL BECAUSE,
EVEN HAD THE COURT CONSIDERED AND ACCEPTED THE CONTENTIONS NOW URGED,
IT MIGHT WELL HAVE FOUND THEM INSUFFICIENT TO AVOID LIABILITY AND HAVE
HELD THAT, BY GIVING PERMISSION TO HAVE SUBSTITUTION MADE FOR WARRANTED
SHIPS' EQUIPMENT, THE OWNER ADOPTED THE SUBSTITUTE AS HIS OWN. 

IN VIEW OF THE INSUBSTANTIAL FOUNDATION IN AUTHORITY OF WHAT IS TODAY
DECIDED, I DEEM IT INCUMBENT UPON ME TO EXAMINE THE HISTORY OF THE
EVOLUTION OF THE DOCTRINE OF ABSOLUTE LIABILITY IN INJURY CASES UPON
WHICH PETITIONER RESTS HIS CLAIM. 

ALTHOUGH IT WAS REASONABLY WELL ESTABLISHED BY THE MIDDLE OF THE
NINETEENTH CENTURY THAT THE MARITIME CARRIER OF GOODS, IN THE ABSENCE
OF EXPRESS PROVISIONS TO THE CONTRARY, WARRANTED THEIR SAFE DELIVERY
AGAINST ALL HAZARDS SAVE ACTS OF GOD OR THE PUBLIC ENEMY, SEE, E.G.,
THE PROPELLER NIAGARA V. CORDES, 21 HOW.  7, 23, THE ORIGINS OF SUCH
STRICT LIABILITY ARE NOT ENTIRELY CLEAR.  THE ENGLISH ADMIRALTY COURTS
APPARENTLY CONFINED THE SHIPOWNER'S LIABILITY TO LOSSES RESULTING FROM
HIS FAULT OR THAT OF HIS SERVANTS.  SEE FLETCHER, THE CARRIER'S
LIABILITY, 51-79.  THE IMPOSITION OF STRICTER LIABILITY APPEARS TO HAVE
BEGUN NOT IN THE ADMIRALTY AT ALL, BUT IN THE COMMON-LAW COURTS AS THE
JURISDICTION OF THE ADMIRAL GRADUALLY DECLINED.  SEE MEARS, THE HISTORY
OF THE ADMIRALTY JURISDICTION, IN 2 SELECT ESSAYS IN ANGLO-AMERICAN
LEGAL HISTORY, P. 312 ET SEQ. (ORIGINALLY PUBLISHED IN ROSCOE,
ADMIRALTY JURISDICTION AND PRACTICE, PP. 1-61).  THEY INCREASINGLY
REGARDED THE CARRIER BY SEA AS A COMMON CARRIER, WHETHER OR NOT HE
FITTED THE TRADITIONAL CONCEPT, SEE PATON, BAILMENT IN THE COMMON LAW,
233-236, AND IT DOES NOT APPEAR THAT THEY PREDICATED HIS STRICT
LIABILITY TO REDELIVER CARGO ON ANY PECULIARLY MARITIME ASPECTS OF THE
CARRIAGE. 

IN ANY EVENT, WITH THE SANCTION OF THE ENGLISH - AND, TO A LESSER
EXTENT, THE AMERICAN - COURTS IT EARLY BECAME POSSIBLE FOR THE MARITIME
CARRIER TO USE THE CONTRACT OF CARRIAGE BY WAY OF LIMITING THIS
EXTRAORDINARY LIABILITY, AND THE SIGNIFICANCE OF A CARRIER'S LIABILITY
AS SUCH SHRANK.  SEE POPE V. NICKERSON, 3 STORY 465.  DISCLAIMERS OF
ANY DUTY BEYOND THE EXERCISE OF DILIGENCE WERE VALID AND COMMON, AND,
IN ENGLAND, DISCLAIMERS OF LIABILITY EVEN FOR NEGLIGENT DAMAGE WERE
SUSTAINED.  SEE I PARSONS, MARITIME LAW, 177-179, N. 1; COMPARE, IN RE
MISSOURI S.S. CO., 42 CH. D. 321 (1889), WITH LIVERPOOL STEAM CO. V.
PHENIX INS. CO., 129 U.S. 397, 438-439 (1889). 

IT WAS AGAINST THE BACKGROUND OF SUCH LIMITATIONS OF THE CARRIER'S
STRICT DUTY TO REDELIVER CARGO, AND IN DEROGATION OF THEM, THAT THE
MORE LIMITED, THOUGH ABSOLUTE, DUTY TO FURNISH A SEAWORTHY VESSEL
EMERGED.  UNLIKE THE STRICT DUTY IMPOSED ON CARRIERS IN GENERAL TO
REDELIVER CARGO, IT WAS A CONCEPT ROOTED IN THE PECULIARLY MARITIME
HAZARDS OF CARRIAGE BY SEA.  IT EXPRESSED, AND BECAME THE FOCUS OF,
AMERICAN JUDICIAL RESISTANCE TO BROAD DISCLAIMERS, AND WAS IMPLIED
DESPITE RELATIVELY SPECIFIC LIMITATIONS IN THE CONTRACT OF CARRIAGE. 
SEE, E.G., THE CALEDONIA, 157 U.S. 124, 137.  THE REASONS FOR THE
DEVELOPMENT ARE EVIDENT.  THE HAZARDS OF THE SEA WERE GREAT EVEN IN
VESSELS PROPERLY MAINTAINED AND OUTFITTED; IN IMPERFECT SHIPS THEY
BECOME INTOLERABLE.  SINCE AT THE START OF A VOYAGE THE FAMILIAR
FACILITIES OF THE HOME PORT WERE ORDINARILY AVAILABLE TO THE OWNER TO
PERMIT HIM TO REDUCE THE RISK, IT WAS NOT UNREASONABLE TO REQUIRE HIM
AT THE PERIL OF EXTENSIVE LIABILITY TO MAKE THE VESSEL SEAWORTHY -
REASONABLY FIT FOR THE INTENDED VOYAGE, SEE THE SILVIA, 171 U.S. 462,
464; THE SOUTHWARK, 191 U.S. 1, 9 - AND THEREBY REMOVE A PROFITABLE
TEMPTATION TO ADD TO THE HAZARDS OF THE SEA.  THOUGHT THE FACT THAT THE
DUTY WAS ABSOLUTE IS IN SOME MEASURE INDICATIVE OF AN UNSTATED
DETERMINATION THAT THE CARRIER'S ABILITY TO DISTRIBUTE THE RISK
JUSTIFIED REGARDING HIM AS AN INSURER, CF. SEAS SHIPPING CO. V.
SIERACKI, 328 U.S. 85, 94, THE DOMINANT REASON APPEARS TO HAVE BEEN
THAT UNDER THE CONDITIONS EXISTING BEFORE THE START OF A VOYAGE IT WAS
FAIR TO DEMAND THE INCREMENT OF ADDITIONAL SAFETY WHICH COULD BE
OBTAINED BY BARRING THE DEFENSE OF DUE CARE.  THE INSTANCES OF DEFECTS
IN FACT UNDISCOVERABLE UNDER THE COMPARATIVELY IDEAL PRE-VOYAGE
CIRCUMSTANCES WOULD BE PREDICTABLY LOW, AND THE EXTRAORDINARY CHARACTER
OF THE RISK, COUPLED WITH THE EXCLUSIVE KNOWLEDGE AND CONTROL OF THE
OWNER AND HIS ABILITY TO CONTRACT AWAY THE RISK IN HIS DEALINGS WITH
SUPPLIERS AND SERVICE COMPANIES, JUSTIFIED IMPOSING THE BURDEN ON HIM. 

THIS JUDICIAL EVOLUTION WAS DOUBTLESS INFLUENCED AS WELL BY THE
SIMILARLY ABSOLUTE IMPLIED WARRANTY IN CONTRACTS OF MARINE INSURANCE BY
WHICH THE ASSURED, WHETHER SHIPOWNER, CHARTERER, OR SHIPPER, WARRANTED
THE SEAWORTHINESS OF THE VESSEL AT THE START OF ITS VOYAGE AS A
CONDITION UPON THE ATTACHING OF THE POLICY.  THE ORIGIN OF THIS RULE
HAS BEEN ATTRIBUTED TO THE CUSTOMARY UNDERSTANDING OF THE RISKS
ACTUALLY UNDERTAKEN BY THE INSURER.  SEE, E.G., TETREAULT, SEAMAN,
SEAWORTHINESS, AND THE RIGHTS OF HARBOR WORKERS, 39 CORNELL L.Q. 381,
395.  BUT WHATEVER ROLE CUSTOM MAY HAVE PLAYED, THE IMPLIED WARRANTY
APPEARS TO HAVE SPRUNG, AT LEAST IN PART, FROM CONSIDERATIONS OF POLICY
UNRELATED TO THE INSURER'S UNDERSTANDING.  "I HAVE ENDEAVOURED, BOTH
WITH A VIEW TO THE BENEFIT OF COMMERCE AND THE PRESERVATION OF HUMAN
LIFE, TO ENFORCE THAT DOCTRINE OF THE IMPLIED WARRANTY OF INITIAL
SEAWORTHINESS AS FAR AS, IN THE EXERCISE OF A SOUND DISCRETION, I HAVE
BEEN ENABLED TO DO SO ...  ."  LORD ELDON, IN DOUGLAS V. SCOUGALL, 4
DOW 269, 276 (1816); CF. THE CALEDONIA, 157 U.S. 124. 

TOWARD THE END OF THE NINETEENTH CENTURY THESE DIFFERENT
CONSIDERATIONS, WHICH HAD GIVEN RISE TO A SINGLE DUTY, BECAME
IMPERCEPTIBLY FUSED.  THIS COURT HELD THAT THE WARRANTY OF ASSURED TO
INSURER WAS IDENTICAL TO THAT OF CARRIER TO SHIPPER, EVEN EXPLAINING
THE CARRIER'S IMPLIED PROMISE IN TERMS OF THE UNDERTAKING OF THE
SHIPPER.  THE CALEDONIA, 157 U.S. 124. 

THE DIVERGENCE OF ATTITUDE BETWEEN AMERICAN AND ENGLISH COURTS WHICH
APPEARED IN THE SCOPE OF THE CONTRACTUAL DISCLAIMERS OF LIABILITY EACH
WOULD RECOGNIZE, WAS MORE SHARPLY EXEMPLIFIED BY THE SCOPE THEY
RESPECTIVELY ATTRIBUTED TO THE WARRANTY OF SEAWORTHINESS IN CARGO AND
INSURANCE CASES.  BY 1853 ENGLISH COURTS HAD CLEARLY LIMITED THE
WARRANTY TO THE CONDITION OF THE VESSEL AT THE START OF THE VOYAGE,
WHILE RECOGNIZING THAT AMERICAN COURTS HAD JUST AS CLEARLY HELD THE
OWNER LIABLE AND THE INSURER EXONERATED FOR LOSSES OCCASIONED BY
UNSEAWORTHY CONDITIONS SUBSEQUENTLY ARISING AND ALLOWED TO PERSIST
THROUGH THE NEGLIGENCE OF RESPONSIBLE SERVANTS.  SEE, E.G., BARON PARKE
IN GIBSON V. SMALL, 4 H.L. CAS. 353, 398-399; I PARSONS, MARINE
INSURANCE, 381-383; UNION INS. CO. V. SMITH, 124 U.S. 405, 427.  THE
ENGLISH COURTS WERE STRONGLY INFLUENCED BY THE INHERENT LIMITATIONS OF
THE OWNER'S ACTUAL CONTROL OF A VESSEL (SEE, E.G., GIBSON V. SMALL,
SUPRA, AT 404); WHILE THE AMERICAN SO HIGHLY ESTEEMED THE PROTECTION OF
LIFE AND PROPERTY, PRESUMABLY TO BE SO GAINED, AS TO HAVE HELD THE
OWNER IN EFFECT ABSOLUTELY LIABLE TO SELECT MASTER AND CREW WHO WOULD
IN FACT DILIGENTLY SEE TO THE CONTINUING SEAWORTHINESS OF THE VESSEL. 
IN AMERICA, THE RESULT OF THE CONFLICTS CREATED BY THIS DIVERGENCE IN
THE LAW OF TWO MARITIME NATIONS WAS THE HARTER ACT OF 1893, 27 STAT.
445.  THE CARRIER WAS THEREBY PERMITTED TO DISCLAIM ANY DUTY OTHER THAN
TO EXERCISE DUE DILIGENCE IN THE PREPARATION OF THE VESSEL.  IF HE IN
FACT EXERCISED SUCH DILIGENCE, HE WAS FREED OF LIABILITY FOR LOSSES
"RESULTING FROM FAULTS OR ERRORS IN NAVIGATION OR IN THE MANAGEMENT" OF
THE VESSEL.  THE PURPOSE AND EFFECT OF THE ACT WAS TO STRIKE A
COMPROMISE BETWEEN THE ENGLISH AND AMERICAN STANDARDS SO AS TO REDUCE
CONFLICTS BETWEEN THEM.  (FN4)  SEE GILMORE AND BLACK, THE LAW OF
ADMIRALTY, 122.  ONE COLLATERAL EFFECT OF THE ACT WAS LARGELY TO REMOVE
FROM CONCERN OF THE COURTS QUESTIONS OF LIABILITY FOR CARGO DAMAGE
CAUSED BY UNSEAWORTHY CONDITIONS ARISING AFTER THE START OF THE
VOYAGE.  CF. THE SILVIA, 171 U.S. 462; MAY V. HAMBURG-AMERIKANISCHE,
290 U.S. 333.  AFTER, AND PROBABLY BECAUSE OF, THE HARTER ACT, THE
STATEMENT FREQUENTLY APPEARS IN CARGO-DAMAGE CASES THAT THE WARRANTY OF
SEAWORTHINESS APPLIES ONLY AT THE START OF THE VOYAGE; SUBSEQUENTLY
ARISING DEFICIENCIES ARE TREATED AS ASPECTS OF "NAVIGATION OR
MANAGEMENT."  SEE, E.G, MAY V. HAMBURG-AMERIKANISCHE, SUPRA, AT 345;
THE STEEL NAVIGATOR, 23 F.2D 590, 591 (C.A.2D CIR. 1928).  HOWEVER,
EVEN THAT ACT DID NOT DIMINISH THE TENDENCY OF THE ADMIRALTY COURTS TO
FIND THAT A CONTRACTUAL DISCLAIMER DID NOT APPLY TO THE WARRANT OF
SEAWORTHINESS AT THE START OF THE VOYAGE, AND THE ABSOLUTE WARRANTY OF
INITIAL SEAWORTHINESS THEREFORE REMAINED.  SEE, E.G., THE CARIB PRINCE,
170 U.S. 655. 

THE MOST STRIKING DIFFERENCES BETWEEN ENGLISH AND AMERICAN COURTS AS
TO THE SCOPE OF THE WARRANTY OF SEAWORTHINESS OCCURRED IN THE AREA OF
COMPENSATION FOR SEAMEN'S INJURIES.  (FN5)  THE LAW OF BOTH NATIONS
EARLY RECOGNIZED UNSEAWORTHINESS AS A CONDITION UPON THE CONTRACT OF
EMPLOYMENT, WHICH, UPON THE EMPLOYER'S DEFAULT, OPERATED TO EXONERATE
THE SEAMAN FROM FORFEITURE OF WAGES IF HE QUIT THE SHIP.  1 PARSONS,
MARITIME LAW, 455; THE ARIZONA V. ANELICH, 298 U.S. 110, 121-122, N.
2.  BUT THOUGH THE DUTY TO PROVIDE A SEAWORTHY VESSEL WAS THUS HELD TO
RUN TO SEAMEN, THE SEAMAN'S REMEDY WAS FOR A CONSIDERABLE TIME
RESTRICTED TO THIS LIMITED FORM OF SELF-HELP. 

IN ENGLAND THE QUESTION OF A SEAMAN'S RIGHT TO COMPENSATORY DAMAGES
FOR INJURIES RESULTING FROM THE UNSEAWORTHINESS OF THE VESSEL WAS FIRST
PRESENTED FOR DECISION IN COUCH V. STEELE (1854) 3 EL. & BL. 402.  THE
PLAINTIFF CLAIMED COMPENSATION FOR DAMAGE FROM ILLNESS BROUGHT ABOUT BY
THE LEAKY CONDITION OF THE VESSEL.  THE COURT, APPARENTLY ASSUMING THAT
THE VESSEL WAS UNSEAWORTHY, DECLARED THAT THE WARRANTY DID NOT RUN TO
SEAMEN, FOR THE REASON THAT IT WAS UNKNOWN WHETHER THE DEFICIENCIES OF
THE VESSEL WERE TAKEN INTO ACCOUNT IN THE CONTRACT FOR WAGES. 
COLERIDGE, J. (AT 408), DISTINGUISHED THE INSURANCE WARRANTY AS TURNING
ON DOCTRINES WHICH "HAVE NO PLACE IN ANY OTHER BRANCH OF THE LAW," AND
CONFINED THE DUTY OF OWNER TO SEAMEN TO THE SCOPE OF MASTER-SERVANT LAW
ON LAND.  A SIMILAR DISPOSITION TO ANALOGIZE MARITIME TO NON-MARITIME
ACTIVITY ON THE PART OF THE ENGLISH COMMON-LAW COURTS WAS MANIFEST IN
READHEAD V. MIDLAND R. CO., (1869) L.R., 4 Q.B. 379, WHERE THE CLAIM
WAS ADVANCED THAT A RAILWAY PASSENGER INJURED WHEN A WHEEL BROKE WAS,
BY ANALOGY TO THE WARRANTY OF SEAWORTHINESS AS TO CARGO, ENTITLED TO
COMPENSATION FOR HIS INJURIES.  THE COURT DISPOSED OF THE CONTENTION BY
DESCRIBING THE WARRANTY OF SEAWORTHINESS AS SOLELY RESPONSIVE TO THE
NEED, EARLY NOTED IN COGGS V. BERNARD, (1703) 2 LD. RAYM.  909, TO
PREVENT COMMON CARRIERS GENERALLY FROM COLLUDING WITH THIEVES. 

COUCH V. STEELE, SUPRA, WAS MODIFIED BY THE MERCHANT SHIPPING ACT OF
1876, 39 & 40 VICT., C. 80, SEC. 5, BY WHICH A DUTY WAS IMPOSED ON THE
OWNER TO EXERCISE DUE CARE TO PROVIDE AND MAINTAIN A SEAWORTHY VESSEL. 
FOR INJURIES RESULTING FROM BREACH OF THE DUTY, A SEAMAN COULD RECOVER
COMPENSATORY DAMAGES.  BUT EVEN THAT ACT WAS NARROWLY CONSTRUED AS TO
CONDITIONS ARISING AFTER THE START OF THE VOYAGE IN THE COURSE OF
OPERATION OF THE VESSEL.  SEE HEDLEY V. PINKNEY & SONS S.S. CO., (1894)
A.C. 222.  IN THE UNITED STATES, COUCH V. STEELE, SUPRA, WAS EARLY
DISAPPROVED.  SEE, E.G., THE NODDLEBURN, 28 F. 855 (D.C. ORE.  1886); 2
PARSONS, SHIPPING AND ADMIRALTY, 78.  THE LIABILITY WHICH LOWER COURTS
GENERALLY FOUND TO EXIST, HOWEVER, WAS NOT FOUNDED UPON THE ABSOLUTE
WARRANTY REJECTED IN COUCH, BUT UPON FAULT.  SEE, E.G., THE NODDLEBURN,
SUPRA; THE FLOWERGATE, 31 F. 762 (D.C.E.D.N.Y. 1887); THE LIZZIE FRANK,
31 F. 477, 479 (D.C.S.D. ALA. 1887)(WHICH FOLLOWED READHEAD V. MIDLAND
R. CO., SUPRA, IN EXPLAINING THE CARGO WARRANTY AS STEMMING ONLY FROM
COMMON-CARRIER STATUS). 

IN 1903 THIS COURT DECIDED THE OSCEOLA, 189 U.S. 158, AND LAID DOWN
ITS OFT-CITED FOUR PROPOSITIONS (AT 175) GOVERNING THE LIABILITY OF
VESSEL AND OWNER TO INJURED SEAMEN.  AS HAS FREQUENTLY BEEN NOTED, THE
SECOND PROPOSITION, A DICTUM DECLARING A RIGHT TO INDEMNITY FOR
INJURIES "RECEIVED BY SEAMEN IN CONSEQUENCE OF THE UNSEAWORTHINESS OF
THE SHIP, OR A FAILURE TO SUPPLY AND KEEP IN ORDER THE PROPER
APPLIANCES APPURTENANT TO THE SHIP" (AT 175) DOES NOT APPEAR TO HAVE
ANNOUNCED A DOCTRINE OF LIABILITY WITHOUT FAULT.  NO CARGO OR INSURANCE
CASES WERE RELIED UPON, AND NONE OF THE CASES CITED HAD FOUND SUCH
LIABILITY.  THE ONLY RELIANCE ON ENGLISH LAW WAS ON THE ACT OF 1876,
SUPRA, WHICH DEFINED THE DUTY AS REQUIRING THE EXERCISE OF DUE
DILIGENCE TO RENDER THE VESSEL SEAWORTHY.  IT APPEARS INSTEAD THAT IT
WAS THE INTENTION OF THE OSCEOLA TO ADOPT THE ANALYSIS OF JUDGE ADDISON
BROWN IN THE CITY OF ALEXANDRIA, 17 F. 390 (D.C.S.D.N.Y. 1883), WHICH
IT CITED, UNDER WHICH A SEAMAN COULD RECOVER ONLY FOR INJURIES
RESULTING FROM THAT LIMITED SPECIES OF NEGLIGENCE WHICH RESULTED IN AN
UNSEAWORTHY CONDITION.  SUCH IS THE TENOR OF THE THIRD AND FOURTH
PROPOSITIONS OF THE OSCEOLA. 

AFTER THE OSCEOLA A NUMBER OF DECISIONS DENIED RECOVERY FOR
NEGLIGENTLY CAUSED INJURY ON THE GROUND THAT UNSEAWORTHINESS WAS
ABSENT.  SEE, E.G., TROPICAL FRUIT S.S. CO. V. TOWLE, 222 F. 867 (C.A.
5TH CIR. 1915); JOHN A. ROEBLING'S SONS CO. V. ERICKSON, 261 F. 986
(C.A.2D CIR. 1919).  AFTER AN ABORTIVE ATTEMPT BY CONGRESS, SEE 38
STAT. 1164, 1185; CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372, THERE
FOLLOWED IN 1920 THE REMEDIAL LEGISLATION NOW FAMILIARLY KNOWN AS THE
JONES ACT, EXTENDING RELIEF AGAINST THE OWNER FOR ALL FORMS OF
NEGLIGENT INJURY TO SEAMEN, FREE OF THE SO-CALLED FELLOW-SERVANT RULE
OF ADMIRALTY. 

IT WAS AGAINST THIS BACKGROUND THAT CARLISLE PACKING CO. V.
SANDANGER, 259 U.S. 255, QUITE OUT OF THE BLUE, CITING CARGO CASES,
DECLARED THAT THE OWNER'S DUTY TO A SEAMAN TO PROVIDE A SEAWORTHY
VESSEL WAS AS ABSOLUTE AS THAT ESTABLISHED BY THE IMPLIED WARRANTY AS
TO CARGO.  (FN6)  IN SO RULING, THE COURT GAVE EXPRESSION TO A POLICY,
LONG DISCERNIBLE IN AMERICAN ADMIRALTY DECISIONS, OF IMPLYING THE
WARRANTY NOT MERELY BECAUSE OF THE CUSTOMARY EXPECTATIONS OF THE
PARTIES TO AN AGREEMENT - THE ENGLISH COURT'S BASIS FOR REJECTION OF
THE WARRANTY IN COUCH V. STEELE, SUPRA - BUT AS WELL IN ORDER TO
INCREASE PROTECTION TO LIFE AND PROPERTY AGAINST THE HAZARDS OF THE
SEA.  THEY HAD PREVIOUSLY MANIFESTED THIS CONCEPTION OF THE SOURCE OF
THE WARRANTY IN THE DEGREE TO WHICH THEY DEPARTED FROM THE ENGLISH
COMMON-LAW COURTS IN CONFINING ATTEMPTED DISCLAIMERS OF THE WARRANTY,
AND IN THEIR WILLINGNESS TO FIND A DUTY TO MAINTAIN THE CONDITION OF
SEAWORTHINESS THROUGHOUT THE VOYAGE. 

THE REASONS WHICH JUSTIFIED THE IMPLICATION ON GROUNDS OF POLICY AS
TO CARGO, JUSTIFIED IT AS TO EMPLOYED SEAMEN; AND THERE WAS NO
COUNTERVAILING EXTENSIVE INCREASE IN THE NATURE OF THE DUTY TO GIVE THE
COURT SERIOUS PAUSE IN EXTENDING TO THE PROTECTION OF LIFE A POLICY
DESIGNED IN SIGNIFICANT PART FOR THE PROTECTION OF PROPERTY.  DESPITE
THE HARTER ACT, THE ABSOLUTE WARRANTY OF INITIAL SEAWORTHINESS AS TO
CARGO SURVIVED; AND UNDER THE STRICT RULES OF SHIPBOARD ORGANIZATION
AND CONDUCT, THE SAFETY OF THE SEAMAN WAS, IN A VERY REAL SENSE,
SUBJECT TO THE SAME HAZARDS. 

IT WAS PREDICTABLE THAT THERE WOULD BE FEW, IF ANY, MATTERS WITH
WHICH THE OWNER WOULD HAVE TO BE CONCERNED UNDER THE WARRANTY SO
EXTENDED, THAT HE COULD REASONABLY HAVE IGNORED AS CREATING NO THREAT
TO THE SAFETY OF CARGO.  AT THE START OF THE VOYAGE, HIS OPPORTUNITY
WOULD BE AMPLE, AS IN THE CASE OF CARGO, TO UNDERTAKE THAT EFFECTIVE
DILIGENCE WHICH WOULD IN FACT AVOID ALL BUT A VERY FEW INJURIES
RESULTING FROM UNSEAWORTHINESS; AND HE WOULD BE ABLE TO PROTECT HIMSELF
FROM THE CONSEQUENCES OF MOST DEFICIENCIES UNDETECTABLE BY HIM BY
AGREEMENT WITH SUPPLIERS, OR SERVICE COMPANIES, AND FROM THE REST BY
THE PURCHASE OF INSURANCE.  THE ADDITIONAL BURDEN CREATED BY EXTENSION
OF THE WARRANTY TO SEAMEN WAS THUS NOT UNDULY HEAVY; AND THE INTEREST
TO BE VINDICATED HAD FOR LONG BEEN A TRADITIONAL CONCERN OF AMERICAN
ADMIRALTY. 

IF SANDANGER NOW STOOD ALONE, IT WOULD BE PLAIN THAT THE ABSOLUTE
WARRANTY IT ANNOUNCED WAS NO GREATER IN SCOPE THAN THE WARRANTY AS TO
CARGO WHICH PRE-EXISTED THE HARTER ACT OF 1893, AND THE QUESTION NOW
PRESENTED - WHETHER THE WARRANTY IS ALSO ABSOLUTE AS TO SUBSEQUENTLY
ARISING CONDITIONS - WOULD CLEARLY PRESENT A NOVEL ISSUE FOR DECISION. 
SUBSEQUENT DECISIONS IN THIS COURT HAVE NOT DELIBERATELY CLOSED THE
GAP. 

IT WAS TWENTY-TWO YEARS BEFORE THE QUESTION OF THE EXISTENCE AND
SCOPE OF ABSOLUTE LIABILITY CAME BEFORE THIS COURT AGAIN, AND IN THE
INTERIM THE LOWER COURTS MANIFESTED SHARP DISAGREEMENT WHETHER IT
EXISTED AT ALL.  COMPARE THE ROLPH, 299 F. 52 (C.A. 9TH CIR. 1924), AND
THE TAWMIE, 80 F.2D 792 (C.A. 5TH CIR. 1936), WITH THE H.A. SCANDRETT,
87 F.2D 708 (C.A.2D CIR. 1937).  (IN THIS CASE JUDGE AUGUSTUS N. HAND
FOLLOWED SANDANGER IN RELYING UPON CARGO CASES.) 

IN 1944 THIS COURT DECIDED MAHNICH V. SOUTHERN S.S. CO., 321 U.S.
96.  THE SUIT WAS BROUGHT BY A SEAMAN UNDER THE GENERAL MARITIME LAW
(THE STATUTE OF LIMITATIONS HAVING RUN ON JONES ACT CLAIMS) FOR
INJURIES WHICH HE INCURRED AT SEA WHEN A ROPE, WITH WHICH THE STAGING
ON WHICH HE WAS WORKING FIFTEEN FEET OVER THE DECK WAS RIGGED, PARTED
AND HE FELL.  THE MATE IN CHARGE HAD TAKEN THE ROPE, WHICH WAS UNUSED,
BUT A LEAST TWO YEARS OLD, FROM THE LYLE GUN (A LIFE-SAVING DEVICE)
BOX.  AFTER THE ACCIDENT IT APPEARED THAT THE ROPE WAS DECAYED. 

THE DISTRICT COURT, 45 F. SUPP. 839, FOUND THAT THE MATE'S SELECTION
OF THE ROPE WAS NEGLIGENT BUT DISMISSED THE LIBEL ON THE GROUND THAT,
APART FROM THE JONES ACT, NEGLIGENT INJURY ALONE WAS NOT COMPENSABLE
AND THAT THE VESSEL, SINCE IT HAD OTHER GOOD ROPE ON BOARD SUFFICIENT
FOR THE JOB, WAS NOT UNSEAWORTHY.  THE COURT OF APPEALS AFFIRMED.  135
F.2D 602.  IT ASSUMED, WITHOUT DECIDING, THAT THE ROPE WAS NEGLIGENTLY
SELECTED (A DISSENTING JUDGE FOUND NO NEGLIGENCE, 135 F.2D, AT 605),
AND AGREED WITH THE DISTRICT COURT'S CONCLUSION THAT THE VESSEL WAS NOT
UNSEAWORTHY.  THOUGHT IT REVERSED, THIS COURT, TOO, FOUND IT
UNNECESSARY TO DECIDE THE CONTESTED QUESTION OF NEGLIGENCE.  IT GAVE AS
ITS PRIMARY REASON THAT "THE EXERCISE OF DUE DILIGENCE DOES NOT RELIEVE
THE OWNER OF HIS OBLIGATION TO THE SEAMAN TO FURNISH ADEQUATE
APPLIANCES."  (321 U.S., AT 100.)  ALTHOUGH THIS STATEMENT WAS THE
CRITICAL MAJOR PREMISE OF AN OPINION WHICH WENT ON TO DECIDE THAT SUCH
ABSOLUTE LIABILITY WOULD NOT BE BARRED BY THE MATE'S INTERVENING
NEGLIGENCE, IT WAS RESTED PRIMARILY ON CARLISLE PACKING CO. V.
SANDANGER, SUPRA, WITHOUT FURTHER EXPLANATION. 

THERE IS NO MORE DISCLOSURE IN THE OPINION OR HISTORY OF THIS CASE
THAN THERE WAS IN SANDANGER TO WARRANT ATTRIBUTING TO THIS STATEMENT A
DELIBERATE OR AUTHORITATIVE RULING THAT LIABILITY IS ABSOLUTE FOR ALL
INJURIES RESULTING FROM UNSEAWORTHY CONDITIONS.  CONFINED TO THE FACTS
OF THE CASE, THE DECISION THAT INTERVENING NEGLIGENCE WOULD NOT
CONSTITUTE A DEFENSE TO AN ACTION FOR INJURIES RESULTING FROM AN
UNSEAWORTHY CONDITION IS CONSISTENT WITH THE RULE OF THE CARGO AND
INSURANCE CASES, CONFINING THE ABSOLUTE WARRANTY TO DAMAGE RESULTING
FROM INITIAL UNSEAWORTHINESS.  THE ROPE, WHICH WAS NEW, HAD DECAYED
FROM OVERLONG OR IMPROPER STORAGE, NOT FROM USE, AND WAS, IT IS RIGHT
TO ASSUME, DEFECTIVE FROM THE START OF THE VOYAGE.  CF. THE EDWIN I.
MORRISON, 153 U.S. 199, 211. 

MOREOVER, A CLAIM FOR EXTENDING THE SCOPE OF THE ABSOLUTE WARRANTY
WAS NOT RAISED OR ARGUED BY THE PARTIES.  THEY SIMPLY ASSUMED THAT
LIABILITY WOULD FOLLOW UNSEAWORTHINESS UNLESS INTERVENING NEGLIGENCE
WAS A DEFENSE.  THEIR MAJOR CONCERN, AND THE PRIMARY FOCUS OF THE
COURT'S ATTENTION, WAS THE EARLIER CASE OF PLAMALS V. THE PINAR DEL
RIO, 277 U.S. 151, WHERE IT WAS HELD, ON SUBSTANTIALLY IDENTICAL FACTS,
THAT THE MATE'S NEGLIGENCE DID NOT CREATE LIABILITY FOR UNSEAWORTHINESS
WHERE THERE WAS AN ADEQUATE SUPPLY OF SOUND ROPE ON BOARD.  IN MAHNICH,
PLAMALS WAS HELD TO HAVE RESTED ON ONE OF TWO MISTAKEN PREMISES:
EITHER (1) THAT THE QUESTION OF SEAWORTHINESS TURNED SOLELY ON THE
SUPPLY OF ROPE AND NOT ON THE CONDITION OF THE APPLIANCE RIGGED IN THE
COURSE OF THE VOYAGE, OR (2) THAT LIABILITY FOR PROVISION OF AN
UNSEAWORTHY APPLIANCE IN THE COURSE OF A VOYAGE WOULD BE BARRED WHERE
THE UNSEAWORTHINESS RESULTED FROM THE MATE'S NEGLIGENCE.  THE COURT IN
MAHNICH WAS NOT REMOTELY CALLED UPON, IN REJECTING THOSE PREMISES AS IT
DID, TO CONSIDER WHETHER THE ABSOLUTE WARRANTY OF SEAWORTHINESS EXTENDS
TO CONDITIONS ARISING AFTER THE COMMENCEMENT OF THE VOYAGE.  FINALLY,
THERE IS EVIDENCE THAT IF THE COURT MADE ANY ASSUMPTION ABOUT THE SCOPE
OF THE WARRANTY IT ASSUMED THAT, AS IN THE CASE OF CARGO UNTIL THE
HARTER ACT, IT WAS ABSOLUTE, BUT ONLY AS TO CONDITIONS EXISTING AT THE
COMMENCEMENT OF THE VOYAGE.  IT SAID: 

"IT REQUIRED THE HARTER ACT TO RELAX THE EXACTING OBLIGATION TO CARGO
OF THE OWNER'S WARRANTY OF SEAWORTHINESS OF SHIP AND TACKLE.  THAT
RELAXATION HAS NOT BEEN EXTENDED, EITHER BY STATUTE OR BY DECISION, TO
THE LIKE OBLIGATION OF THE OWNER TO THE SEAMAN" (AT 101). 

SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85, IS NO BETTER AUTHORITY
FOR PETITIONER'S CONTENTIONS HERE.  THE ACTION WAS INSTITUTED BY A
LONGSHOREMAN WHO WAS INJURED WHILE LOADING RESPONDENT'S VESSEL, WHEN A
FORGED SHACKLE SUPPORTING THE VESSEL'S TEN-TON BOOM GAVE WAY BECAUSE OF
A LATENT DEFECT IN THE FORGING.  THE DEFECT HAD EXISTED FROM THE TIME
OF THE CONSTRUCTION OF THE SHIP.  BOTH PARTIES CONCEDED THAT THE VESSEL
WAS UNSEAWORTHY, AND THAT IF A SEAMAN HAD BEEN INJURED IN THE SAME WAY
HE COULD HAVE RECOVERED COMPENSATORY DAMAGES.  THE DISTRICT COURT GAVE
JUDGMENT FOR THE OWNER ON THE GROUND THAT IT WAS NOT NEGLIGENT FOR IT
TO HAVE FAILED TO DISCOVER THE DEFECT.  57 F. SUPP. 724.   THE COURT OF
APPEALS REVERSED, ON THE GROUND THAT SIERACKI WAS ENTITLED TO RECOVER
UNDER THE WARRANTY OF SEAWORTHINESS.  149 F.2D 98.  THE TURNING-POINT
OF THE CASE IN THIS COURT WAS WHETHER THE WARRANTY OF SEAWORTHINESS,
CONCEDEDLY ABSOLUTE ON THE FACTS, COVERED LONGSHOREMEN DOING SEAMEN'S
WORK. 

THE COURT'S EXTENDED DISCUSSION OF THE COURCES AND RATIONALE OF THE
WARRANTY IS ENTIRELY CONSISTENT WITH THE HISTORY NOTED ABOVE.  328
U.S., AT 90-96.  NOTHING THAT WAS SAID OR IMPLIED CASTS ANY LIGHT
WHATEVER ON THE QUESTION WHETHER THE INITIAL ABSOLUTE WARRANTY CARRIED
OVER BY SANDANGER FROM THE CARGO CASES EXTENDS TO SUBSEQUENTLY ARISING
CONDITIONS, UNLESS, AS IN MAHNICH, THE COURT'S EQUATION OF THE WARRANTY
RUNNING TO SEAMEN WITH THE PRE-HARTER ACT WARRANTY AS TO CARGO BESPEAKS
ITS ASSUMPTION THAT THE WARRANTY WAS ABSOLUTE ONLY AS TO THE START OF
THE VOYAGE. 

NO OTHER CASE IN THIS COURT IS FURTHER ENLIGHTENING ON THE QUESTION
OF THE SCOPE OF THE ABSOLUTE WARRANTY.  ALASKA S.S. CO. V. PETTERSON,
347 U.S. 396, HAS ALREADY BEEN DISCUSSED.  SEE ALSO ROGERS V. UNITED
STATES LINES, 347 U.S. 984.  POPE & TALBOT, INC., V. HAWN, 346 U.S.
406, IS IRRELEVANT HERE.  THE INJURY OCCURRED IN PORT IN THE COURSE OF
LOADING THE VESSEL; THE QUESTION OF UNSEAWORTHINESS WAS NOT AN ISSUE IN
THIS COURT; AND THE JURY HAD FOUND THE DEFENDANT GUILTY OF NEGLIGENCE. 
BOUDOIN V. LYKES BROS. S.S. CO., 348 U.S. 336, CONCERNED
UNSEAWORTHINESS PREDICATED UPON THE INCOMPETENCY OF A CREW MEMBER,
WHICH, AS THE COURT FOUND, WAS A TRADITIONAL ASPECT OF THE INITIAL
WARRANTY OF SEAWORTHINESS.  CRUMADY V. THE J.H. FISSER, 358 U.S. 423,
FOUND UNSEAWORTHINESS AS A RESULT OF THE VESSEL'S FAILURE TO USE "SAFE
PRACTICE," 358 U.S., AT 426, N., IN THE PREPARATION OF A WINCH FOR
UNLOADING OPERATIONS, ON ITS FACE A NEGLIGENT ACT, ALTHOUGH ITS
NEGLIGENT CHARACTER WAS NOT THE OVERT BASIS OF THE DECISION.  NONE OF
THE SEVERAL PARTIES TO THE CASE RAISED THE OBJECTIONS NOW URGED UPON
US, AND NO MORE THAN IN MAHNICH WERE THEY CONSIDERED OR ADJUDICATED. 
AGAINST THIS BACKGROUND OF PRIOR ADJUDICATIONS IT ASSUMES WHAT IS
REQUIRED TO BE ESTABLISHED TO ASSERT THAT "THERE IS NO SUGGESTION IN
ANY OF THE DECISIONS THAT THE DUTY IS LESS ONEROUS WITH RESPECT TO AN
UNSEAWORTHY CONDITION ARISING AFTER THE VESSEL LEAVES HER HOME PORT
...  ."  IN FACT, THERE IS NO OVERT SUGGESTION IN ANY OF OUR DECISIONS
THAT THE DUTY IS NOT LESS ONEROUS, AND THE ORIGIN OF THE DUTY IN CARGO
AND MARINE INSURANCE CASES STRONGLY SUGGESTS THAT IT IS.  EVEN THE
ADMIRALTY COURTS OF THE NINETEENTH CENTURY, DURING THE GROWTH OF
AMERICAN SHIPPING, FOUND NO JUSTIFICATION IN PECULIARLY MARITIME
CONCERNS FOR IMPOSING AN ABSOLUTE DUTY AT ALL TIMES AFTER THE START OF
THE VOYAGE TO MAINTAIN THE VESSEL IN SEAWORTHY CONDITION.  ONCE THE
VESSEL WAS MADE SAFE, IT WAS THOUGHT SUFFICIENT TO ENTRUST ITS SAFE
CONDUCT TO AN APPROPRIATE STANDARD OF DILIGENCE.  THIS VIEW UNDOUBTEDLY
INVOLVED THE WEIGHING OF A NUMBER OF FACTORS, ALL OF WHICH REMAIN
PERTINENT TODAY: THE UNAVAILABILITY OF THE FAMILIAR FACILITIES OF THE
HOME PORT, OR OF ANY PORT, TO MAKE INSPECTIONS OR REPAIRS; THE
UNFAIRNESS OF HOLDING THE VESSEL ACCOUNTABLE FOR LOSSES RESULTING FROM
DAMAGE, DETECTABLE OR OTHERWISE, CAUSED, WITHOUT FAULT OF THE VESSEL,
BY PERILS OF THE SEA; THE LIKELIHOOD THAT THOSE WHOSE SAFETY DEPENDS ON
THE VESSEL WILL IN ANY EVENT USE EVERY REASONABLE PRECAUTION TO
PRESERVE IT, AND THAT IN THE CIRCUMSTANCES OF OPERATION OF THE VESSEL
NO ADDITIONAL CARE COULD BE EXACTED BY THE IMPOSITION OF ABSOLUTE
LIABILITY; AND THE DETERMINATION THAT TO IMPOSE ABSOLUTE LIABILITY FOR
INJURIES CAUSED BY DEFECTS ARISING WITHOUT FAULT IN THE COMPLEX
OPERATION OF A VESSEL WOULD BE, IN ALL THE CIRCUMSTANCES, UNDULY
BURDENSOME. 

THIS LATTER CONSIDERATION IS ESPECIALLY PERTINENT IN CASES OF SO
CALLED "TRANSITORY" UNSEAWORTHINESS SUCH AS IS BEFORE US.  FOR
DISPOSITION OF THIS CASE IT MAY BE ASSUMED, THOUGH WITH CONSIDERABLE
MISGIVING, THAT THE CONDITION HERE CREATED WHOLLY WITHOUT FAULT AFTER
THE JOURNEY HAD BEGUN, RENDERED THE VESSEL UNSEAWORTHY.  BUT THE
UNREASONABLENESS OF IMPOSING LIABILITY ON THE VESSEL FOR INJURIES
OCCASIONED BY THE UNAVOIDABLE CONSEQUENCES OF ITS PROPER OPERATION NEED
NOT THEREFORE BE IGNORED.  NO COMPENSATING INCREASE IN THE CAUTION
ACTUALLY TO BE EXERCISED CAN BE ANTICIPATED AS A RESULT OF THE CREATION
OF SUCH A DUTY.  NOR CAN THE OWNER PASS ALONG THE RISK TO SUPPLIERS OR
SERVICE COMPANIES.  THE ONLY RATIONAL JUSTIFICATION FOR ITS IMPOSITION
IS THAT THE OWNER IS NOW TO BE REGARDED AS AN INSURER WHO MUST BEAR THE
COST OF THE INSURANCE.  BUT THE COURT OFFERS NO REASON OF HISTORY OR
POLICY WHY VESSEL OWNERS, UNLIKE ALL OTHER EMPLOYERS, SHOULD, IN
CIRCUMSTANCES WHERE THE ONLY BENEFIT TO BE GAINED IS THE INSURANCE
ITSELF, BE REGARDED BY LAW AS THE INSURERS OF THEIR EMPLOYEES.  IF
THERE WERE A SUFFICIENT REASON FOR THE JUDICIAL IMPOSITION OF SUCH
DUTY, IT WOULD BE ARBITRARY IN THE EXTREME TO LIMIT IT TO CASES WHERE
BY CHANCE THE INJURY OCCURS THROUGH THE MOMENTARY INADEQUACY OF A
PRUDENTLY RUN VESSEL.  ALL ACCIDENTAL INJURY SHOULD FALL WITHIN SUCH A
HUMANITARIAN POLICY PROVIDED ONLY THAT IT OCCURS IN THE SERVICE OF THE
SHIP.  IT WAS SUCH A POLICY WHICH FROM THE EARLIEST TIMES HAS JUSTIFIED
THE IMPOSITION OF THE DUTY TO PROVIDE MAINTENANCE AND CURE; BUT NOTHING
IN THE NATURE OF MODERN MARITIME UNDERTAKINGS JUSTIFIES EXTENDING TO
COMPENSATION A FORM OF RELIEF WHICH FOR MORE THAN FIVE CENTURIES HAS
BEEN FOUND SUFFICIENT. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

FN1  "CONSIDERING THE CUSTOM PREVAILING IN THOSE WATERS AND OTHER
CLEARLY ESTABLISHED FACTS, IN THE PRESENT CAUSE, WE THINK THE TRIAL
COURT MIGHT HAVE TOLD THE JURY THAT WITHOUT REGARD TO NEGLIGENCE THE
VESSEL WAS UNSEAWORTHY WHEN SHE LEFT THE DOCK IF THE CAN MARKED 'COAL
OIL' CONTAINED GASOLINE; ALSO THAT SHE WAS UNSEAWORTHY IF NO LIFE
PRESERVERS WERE THEN ON BOARD; AND THAT IF THUS UNSEAWORTHY AND ONE OF
THE CREW RECEIVED DAMAGE AS THE DIRECT RESULT THEREOF, HE WAS ENTITLED
TO RECOVER COMPENSATORY DAMAGES." 

FN2  CHIEF JUDGE MAGRUDER HAS APPROPRIATELY NOTED THAT NO PREVIOUS
DECISION IN THIS COURT HAS CONSIDERED WHETHER LIABILITY FOR
UNSEAWORTHINESS EXISTING AT THE START OF THE VOYAGE EXTENDS TO
SUBSEQUENTLY ARISING CONDITIONS.  265 F.2D, AT 432; SEE ALSO DIXON V.
UNITED STATES, 219 F.2D 10 (C.A.2D CIR.). 

FN3  IT WAS NOT CONTENDED THAT THE FAILURE TO PROVIDE THE VESSEL WITH
A DIFFERENT MODE OF ACCESS, OR OTHER MEANS FOR UNLOADING, RENDERED IT
UNSEAWORTHY FROM THE START OF THE VOYAGE.  CF. POIGNANT V. UNITED
STATES, 225 F.2D 595 (C.A.2D CIR.).

FN4  THE CONSIDERATIONS URGING HARMONY OF LAW FOR INTERNATIONAL
CARRIAGE, ESPECIALLY AS BETWEEN THE UNITED STATES AND THE UNITED
KINGDOM, LED, IN 1936, TO THE ENACTMENT OF THE CARRIAGE OF GOODS BY SEA
ACT, 49 STAT. 1207, SUBSTANTIALLY ADOPTING THE RECOMMENDATIONS OF AN
INTERNATIONAL CONVENTION ON THE PROBLEM.  SEE GILMORE AND BLACK, THE
LAW OF ADMIRALTY, 122-124.  WHERE APPLICABLE, THE 1936 ACT IMPOSES ONLY
THE DUTY TO USE DUE DILIGENCE TO PROVIDE A SEAWORTHY SHIP AT THE START
OF THE VOYAGE. 

FN5  FROM THE TIME OF THE EARLIEST MARITIME CODES SEAMEN INJURED IN
THE SERVICE OF THE VESSEL HAVE, TO VARYING EXTENTS, BEEN ENTITLED TO
MAINTENANCE AND CURE AT THE EXPENSE OF THE SHIP.  SEE THE OSCEOLA, 189
U.S. 158, 169-170.  BUT THE SEAMAN'S RIGHT TO COMPENSATION FOR INJURIES
IS A RELATIVELY MODERN DEVELOPMENT, PROBABLY ORIGINATING IN CASES
CONCERNING THE NEGLIGENT FAILURE OF THE VESSEL TO DISCHARGE THE DUTY TO
PROVIDE MAINTENANCE AND CURE.  SEE BROWN V. OVERTON, 4 FED. CAS. 418
(D.C. MASS. 1859); TETREAULT, SEAMEN, SEAWORTHINESS, AND THE RIGHTS OF
HARBOR WORKERS, 39 CORNELL L.Q. 381, 385.  HOWEVER, THERE APPEARS TO
HAVE BEEN NO CONNECTION BETWEEN THE ELABORATION OF THE DUTY TO PROVIDE
MAINTENANCE AND CURE AND THE EMERGENCE OF THE DOCTRINE OF ABSOLUTE
LIABILITY FOR UNSEAWORTHINESS. 

FN6  IT IS NOT IRRELEVANT TO NOTE THAT THE SPOKESMAN FOR THE COURT
WAS THE JUSTICE UNDER WHOSE LEAD THE MOST UNHAPPY ADMIRALTY DOCTRINES
WERE PROMULGATED:  SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, AND
KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

IN JOINING MY BROTHER FRANKFURTER'S DISSENT, I WISH TO ADD A FEW
WORDS.  I BELIEVE THE COURT'S DECISION NOT ONLY FINDS NO SUPPORT IN THE
PAST CASES, BUT ALSO IS UNJUSTIFIED IN PRINCIPLE, AND IS DIRECTED AT
ENDS NOT APPROPRIATELY WITHIN OUR DOMAIN.  THE SECOND CIRCUIT'S
DECISION IN POIGNANT V. UNITED STATES, 225 F.2D 595, PROVIDES A USEFUL
POINT OF DEPARTURE FOR WHAT I HAVE TO SAY. 

IN POIGNANT THE LIBELLANT, A CREW MEMBER, SLIPPED ON A SMALL PIECE OF
GARBAGE LYING IN A PASSAGEWAY OF THE SHIP.  THE VESSEL LACKED GARBAGE
CHUTES, AND THE GARBAGE WAS PULLED, IN CANS, THROUGH THE PASSAGEWAY TO
A RAILING, WHERE IT WAS JETTISONED.  THE COURT OF APPEALS FIRST
EXPRESSED THE VIEW THAT ANY UNSEAWORTHY CONDITION WHICH EXISTED HAD IN
ALL PROBABILITY ARISEN AFTER THE VOYAGE HAD COMMENCED.  IT SAID, MUCH
AS THE COURT NOW HOLDS, THAT ALASKA STEAMSHIP CO. V. PETTERSON, 347
U.S. 396, REQUIRED IT TO APPLY A RULE OF ABSOLUTE LIABILITY
NONETHELESS.  IT THEN PUT, AS THE CRITICAL ISSUE, THE QUESTION WHETHER
THE PRESENCE OF SOME GARBAGE IN A PUBLIC PASSAGEWAY CONSTITUTED AN
UNSEAWORTHY CONDITION, AND, FINDING THE MATTER TO TURN ON AN ISSUE OF
FACT, REMANDED THE CASE FOR TRIAL.  HOWEVER, IT IS IMPORTANT TO NOTE
THE MANNER IN WHICH THE COURT DEALT WITH THE PROBLEM.  ALTHOUGH AT THE
OUTSET OF THE OPINION THE ALLEGEDLY UNSEAWORTHY CONDITION WAS ASSUMED
TO BE THE PRESENCE OF GARBAGE IN A PASSAGEWAY, 225 F.2D, AT 597, THE
REMAND WAS IN FACT DIRECTED TO THE QUESTION WHETHER THE ABSENCE OF
GARBAGE CHUTES RENDERED THE VESSEL NOT REASONABLY FIT FOR THE VOYAGE,
AND THEREFORE UNSEAWORTHY.  ID., AT 598.  THIS, OF COURSE, WOULD BE A
CONDITION GOING TO THE PROPER OUTFITTING OF THE VESSEL FOR SEA TRAVEL,
AND A CLEAR CASE OF INITIAL UNSEAWORTHINESS.  IN SUCH EVENT, THE INJURY
WOULD HAVE BEEN THE PROXIMATE RESULT OF THAT UNSEAWORTHINESS, FOR IT
WAS BY REASON OF THE LACK OF CHUTES THAT GARBAGE WAS CARRIED THROUGH
THE PASSAGEWAYS AT ALL. 

FOR ME THIS APPROACH INDICATES THE RULE WHICH SHOULD GOVERN THE CASE
BEFORE US.  HAD THE PETITIONER CONTENDED AND PROVED THAT A PROPERLY
OUTFITTED TRAWLER OF THIS TYPE SHOULD HAVE HAD A PARTICULAR DEVICE FOR
UNLOADING FISH, OR AN ALTERNATIVE MEANS OF FACILITATING PETITIONER'S
EGRESS FROM THE VESSEL, SO THAT EITHER THE RAILING WOULD NOT HAVE BEEN
SLIPPERY OR THE PETITIONER WOULD NOT HAVE BEEN REQUIRED TO USE THE
RAILING IN DEBARKING, THE CASE WOULD HAVE BEEN GOVERNED BY THE ABSOLUTE
LIABILITY RULE OF SANDANGER AND ITS SUCCESSORS, AND RESPONDENT'S
OPPORTUNITY TO REMOVE THE SPAWN FROM THE RAIL WOULD PROPERLY BE HELD
IMMATERIAL.  AS THE CASE IS DECIDED, HOWEVER, WE ARE TOLD THAT EVEN
THOUGH THERE IS NO CLAIM THAT THE VESSEL SHOULD HAVE MADE DIFFERENT
PROVISIONS FOR THE UNLOADING OF ITS CATCH OR THE DEBARKING OF ITS CREW,
THE SHIPOWNER IS LIABLE FOR AN INJURY CAUSED BY A TEMPORARY UNSAFE
CONDITION ARISING FROM THE NORMAL OPERATION OF THE VESSEL, NOT THE
RESULT OF FAULT OR MISMANAGEMENT OF ANYONE ON BOARD, AND WHICH NO ONE
HAD A REASONABLE OPPORTUNITY TO REMEDY.  HAD THERE BEEN NEGLIGENCE,
WITHER IN PERMITTING THE SPAWN TO ACCUMULATE OR IN FAILING TO REMOVE
IT, THE ADMIRALTY PRINCIPLES DEVELOPED IN THE CARGO CASES, AND TAKEN
OVER INTO PERSONAL INJURY CASES, WOULD WARRANT AN IMPOSITION OF
LIABILITY, ALTHOUGH AS TO CARGO DAMAGE THE HARTER ACT AND THE CARRIAGE
OF GOODS BY SEA ACT WOULD, OF COURSE, BAR RECOVERY.  THE SILVIA, 171
U.S. 462.  BUT WHERE, AS HERE, THERE IS NEITHER A CLAIM THAT THE VESSEL
WAS INITIALLY UNSEAWORTHY, NOR ANY SHOWING OF NEGLIGENCE, THE
IMPOSITION OF LIABILITY SEEMS TO ME, BORROWING FROM JUDGE MAGRUDER, A
"HARD DOCTRINE," "STARTLINGLY OPPOSED TO PRINCIPLE."  265 F.2D, AT
432. 

THE COURT IS NOT FASHIONING A RULE DESIGNED TO PROTECT LIFE, CF.
BULLARD V. ROGER WILLIAMS INS. CO., 4 FED. CAS. 643, NO. 2,122, AT 646,
FOR THERE APPEARS NO REAL BASIS FOR EXPECTATION THAT TODAY'S DECISION
WILL PROMOTE THE TAKING OF GREATER PRECAUTIONS AT SEA.  SEE, DISSENTING
OPINION OF FRANKFURTER, J., ANTE, P. 557.  THE RESPONDENT IS HELD
LIABLE, WITHOUT BEING TOLD THAT THERE WAS SOMETHING LEFT UNDONE WHICH
SHOULD HAVE BEEN DONE, FOR PETITIONER IS NOT ASKED TO SHOW, AS WAS THE
LIBELLANT IN POIGNANT, THAT THE VESSEL OUGHT TO HAVE BEEN OUTFITTED
DIFFERENTLY, THAT IS, IN A FASHION WHICH WOULD HAVE PREVENTED THE
DANGEROUS CONDITION FROM ARISING AT ALL.  NOR IS THE RESPONDENT
PERMITTED TO SHOW THAT SUCH CONDITION WAS NOT DUE TO ITS FAULT. 

THE SOLE INTEREST SERVED BY THE COURT'S DECISION IS COMPENSATION. 
SUCH AN INTEREST IS, OF COURSE, EQUALLY PRESENT IN THE CASE OF AN
UNDOUBTED ACCIDENT, WHERE UNDER THE COURT'S RULING NO RIGHT OF RECOVERY
IS BESTOWED, AS IT IS IN THE PRESENT CASE.  BUT, BECAUSE OF THE COURT'S
INHERENT INCAPACITY TO DEAL WITH THE PROBLEM IN THE COMPREHENSIVE AND
INTEGRATED MANNER WHICH WOULD DOUBTLESS CHARACTERIZE ITS LEGISLATIVE
TREATMENT, CF. DIXON V. UNITED STATES, 219 F.2D 10, 15, THIS ARBITRARY
LIMITATION IS PRESERVED.  THIS INTERNAL CONTRADICTION IN THE RULE WHICH
THE COURT HAS ESTABLISHED ONLY SERVES TO HIGHLIGHT A MORE CENTRAL
POINT:  IT IS NOT FOR A COURT, EVEN A COURT OF ADMIRALTY, TO FASHION A
TORT RULE SOLELY IN RESPONSE TO CONSIDERATIONS WHICH UNDERLIE WORKMEN'S
COMPENSATION LEGISLATION, WEIGHTY AS SUCH CONSIDERATIONS DOUBTLESS ARE
AS A LEGISLATIVE MATTER.  CITATION IS NOT NEEDED TO REMIND ONE OF THE
READINESS OF CONGRESS TO DEAL WITH FELT DEFICIENCIES IN JUDICIAL
PROTECTION OF THE INTERESTS OF THOSE WHO GO TO SEA.  WE SHOULD HEED THE
LIMITATIONS ON OUR OWN CAPACITY AND AUTHORITY.  SEE HALCYON LINES V.
HAENN SHIP CORP., 342 U.S. 282, 285-287. 

I WOULD AFFIRM. 
..END :








PARKER V. ELLIS 362 U.S. 574 


NO. 38.  ARGUED JANUARY 20, 1960 - DECIDED MAY 16, 1960 - REPORTED
BELOW:  258 F.2D 937. 


THIS COURT GRANTED CERTIORARI TO REVIEW DISMISSAL OF PETITIONER'S
APPLICATION FOR HABEAS CORPUS, IN WHICH HE CLAIMED THAT HIS CONVICTION
IN A STATE COURT VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  BEFORE THE CASE COULD BE HEARD HERE, PETITIONER WAS
RELEASED FROM IMPRISONMENT AFTER HAVING SERVED HIS SENTENCE LESS TIME
OFF FOR GOOD BEHAVIOR.  HELD:  THE CASE HAS BECOME MOOT; THIS COURT IS
WITHOUT JURISDICTION TO DEAL WITH THE MERITS OF PETITIONER'S CLAIM; AND
THE WRIT OF CERTIORARI IS DISMISSED FOR WANT OF JURISDICTION.  PP. 574
576. 

PARKER V. ELLIS, GENERAL MANAGER, TEXAS PRISON SYSTEM. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THIS IS AN APPLICATION FOR A WRIT OF HABEAS CORPUS BROUGHT IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
ALLEGING UNLAWFUL DETENTION UNDER A SENTENCE OF IMPRISONMENT FOLLOWING
A TRIAL IN THE STATE COURT IN WHICH PETITIONER WAS, ACCORDING TO HIS
CLAIM, DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. 
AFTER HEARING, THE DISTRICT COURT DISMISSED THE PETITION.  THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT, WITH ONE JUDGE DISSENTING, AFFIRMED THE
ORDER OF DISMISSAL, 258 F.2D 937, TO WHICH OPINION REFERENCE IS MADE
FOR THE FACTS.  A PETITION FOR CERTIORARI TO REVIEW THIS JUDGMENT
PRESENTED SO IMPRESSIVE A SHOWING FOR THE EXERCISE OF THIS COURT'S
DISCRETIONARY JURISDICTION THAT THE CASE WAS BROUGHT HERE WITH LEAVE TO
THE PETITIONER TO PROCEED IN FORMA PAUPERIS, 359 U.S. 924, AND HIS
MOTION FOR THE ASSIGNMENT OF COUNSEL WAS DULY GRANTED.  359 U.S. 951. 

BEFORE THE CASE COULD COME TO BE HEARD HERE, THE PETITIONER WAS
RELEASED FROM THE STATE PRISON AFTER HAVING SERVED HIS SENTENCE WITH
TIME OFF FOR GOOD BEHAVIOR.  THE CASE HAS THUS BECOME MOOT, AND THE
COURT IS WITHOUT JURISDICTION TO DEAL WITH THE MERITS OF PETITIONER'S
CLAIM.  "THE PRUPOSE OF THE PROCEEDING DEFINED BY THE STATUTE
(AUTHORIZING THE WRIT OF HABEAS CORPUS TO BE ISSUED) WAS TO INQUIRE
INTO THE LEGALITY OF THE DETENTION, AND THE ONLY JUDICIAL RELIEF
AUTHORIZED WAS THE DISCHARGE OF THE PRISONER OR HIS ADMISSION TO
BAIL."  MCNALLY V. HILL, 293 U.S. 131, 136.  "WITHOUT RESTRAINT OF
LIBERTY, THE WRIT WILL NOT ISSUE."  ID., 138.  SEE ALSO JOHNSON V. HOY,
227 U.S. 245.* "IT IS WELL SETTLED THAT THIS COURT WILL NOT PROCEED TO
ADJUDICATION WHERE THERE IS NO SUBJECT-MATTER ON WHICH THE JUDGMENT OF
THE COURT CAN OPERATE."  EX PARTE BAEZ, 177 U.S. 378, 390.  WE HAVE
APPLIED THESE PRINCIPLES TO DENY THE WRIT OF CERTIORARI FOR MOOTNESS ON
THE EXPRESS GROUND THAT PETITIONER WAS NO LONGER IN RESPONDENT'S
CUSTODY IN AT LEAST THREE CASES NOT RELEVANTLY DIFFERENT FROM THE
PRESENT ONE.  WEBER V. SQUIER, 315 U.S. 810; TORNELLO V. HUDSPETH, 318
U.S. 792; ZIMMERMAN V. WALKER, 319 U.S. 744.  IN ALL THESE CASES THERE
WAS CUSTODY AS THE BASIS FOR HABEAS CORPUS JURISDICTION UNTIL THE CASES
REACHED HERE.  IN WEBER, THE RESPONDENT'S CUSTODY CEASED BECAUSE THE
PETITIONER HAD RECEIVED THE BENEFITS OF THE UNITED STATES PAROLE ACT. 
IN TORNELLO THE PETITIONER HAD BEEN PARDONED, AND WAS NO LONGER IN THE
CUSTODY OF ANYONE.  IN ZIMMERMAN PETITIONER HAD BEEN UNCONDITIONALLY
RELEASED AND WAS ALSO NO LONGER IN THE CUSTODY OF ANYONE.  THESE CASES
DEMONSTRATE THAT IT IS A CONDITION UPON THIS COURT'S JURISDICTION TO
ADJUDICATE AN APPLICATION FOR HABEAS CORPUS THAT THE PETITIONER BE IN
CUSTODY WHEN THAT JURISDICTION CAN BECOME EFFECTIVE.  IT IS PRECISELY
BECAUSE A DENIAL OF A PETITION FOR CERTIORARI WITHOUT MORE HAS NO
SIGNIFICANCE AS A RULING THAT AN EXPLICIT STATEMENT OF THE REASON FOR A
DENIAL MEANS WHAT IT SAYS.  ACCORDINGLY, THE WRIT OF CERTIORARI IS
DISMISSED FOR WANT OF JURISDICTION. 

*IT IS LIKEWISE TRUE THAT "A MOTION FOR RELIEF UNDER 28 U.S.C. SEC.
2255 (RELEVANT ONLY TO FEDERAL SENTENCES) IS AVAILABLE ONLY TO ATTACK A
SENTENCE UNDER WHICH A PRISONER IS IN CUSTODY."  358 U.S., AT 420. 
CONTRARY TO THE UNCONSIDERED ASSUMPTION IN POLLARD V. UNITED STATES,
352 U.S. 354, THIS WAS DECIDED AFTER FULL DELIBERATION ONLY A YEAR
AGO.  SEE THE OPINION OF MR. JUSTICE DOUGLAS, 358 U.S., AT 418, AND THE
OPINION OF MR. JUSTICE STEWART FOR THE COURT ON THIS POINT, 358 U.S.,
AT 420, IN HEFLIN V. UNITED STATES, 358 U.S. 415.  OF COURSE RULE 35 OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE IS NOT AVAILABLE FOR STATE
SENTENCES. 

SINCE THE CASE HAS BECOME MOOT BEFORE THE ERROR COMPLAINED OF IN THE
JUDGMENT BELOW COULD BE ADJUDICATED, THE CASE IS REMANDED TO THE COURT
OF APPEALS TO VACATE ITS JUDGMENT AND TO DIRECT THE DISTRICT COURT TO
VACATE ITS ORDER AND DISMISS THE APPLICATION. 

MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE CLARK, ALSO CONSIDERS THIS
CASE MOOT ON A FURTHER GROUND.  IT APPEARS THAT PETITIONER HAS
OUTSTANDING AGAINST HIM FELONY CONVICTIONS IN A NUMBER OF OTHER
STATES.  UNDER TEXAS LAW ANY ONE OF THOSE CONVICTIONS WOULD CARRY THE
SAME CONSEQUENCES WITH RESPECT TO PETITIONER'S EXERCISE OF CIVIL RIGHTS
IN TEXAS (ELECTION CODE ART. 5.01) AS HIS CONVICTION IN THIS CASE.  SEE
HARWELL V. MORRIS, 143 S.W.2D 809, 812-813.  THIS COURT IS AS MUCH
BOUND BY CONSTITUTIONAL RESTRICTIONS ON ITS JURISDICTION AS IT IS BY
OTHER CONSTITUTIONAL REQUIREMENTS.  THE "MORAL STIGMA OF A JUDGMENT
WHICH NO LONGER AFFECTS LEGAL RIGHTS DOES NOT PRESENT A CASE OR
CONTROVERSY FOR APPELLATE REVIEW."  ST. PIERRE V. UNITED STATES, 319
U.S. 41, 43. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

IF THE COURT IS RIGHT IN HOLDING THAT GEORGE PARKER'S FIVE-YEAR QUEST
FOR JUSTICE MUST END IGNOMINIOUSLY IN THE LIMBO OF MOOTNESS, SURELY
SOMETHING IS BADLY ASKEW IN OUR SYSTEM OF CRIMINAL JUSTICE.  I AM
CONVINCED THE COURT IS WRONG.  EVEN ASSUMING ARGUENDO THAT WE COULD NOT
ENTER A NUNC PRO TUNC ORDER, I BELIEVE THAT WE STILL WOULD BE ABLE TO
GRANT RELIEF. 

WE HAVE HERE THE CASE OF A MAN WHO WAS CONVICTED OF A FELONY IN
FLAGRANT DISREGARD OF HIS CONSTITUTIONAL RIGHT TO ASSISTANCE OF
COUNSEL.  SINCE THE COURT TERMS HIS CLAIM AN "IMPRESSIVE" ONE, LENGTHY
DISCUSSION OF ITS MERITS IS UNNECESSARY.  STILL, IT IS NOT AMISS
BRIEFLY TO DESCRIBE WHAT IT IS THE COURT HERE DECLINES TO DECIDE. 

IN 1954, PETITIONER WAS TRIED IN THE DISTRICT COURT OF MOORE COUNTY,
TEXAS, ON A CHARGE OF FORGING A CHECK.  HE WAS THEN 67 YEARS OF AGE
AND, RESPONDENT CONCEDES, IN "FAILING HEALTH."  THE JUDGE REFUSED TO
APPOINT COUNSEL TO REPRESENT HIM.  (FN1)  HE WAS CONVICTED AND RECEIVED
A SENTENCE OF SEVEN YEARS.  TO ANY LAWYER'S EYE - AND IT IS NOT AT ALL
CLEAR THAT THE RESTRICTION TO LAWYERS IS WARRANTED - HIS TRIAL WAS A
SHAM.  ALTHOUGH THE TESTIMONY DIRECTLY BEARING ON THE ISSUE OF FORGERY
WAS NOT STRONG, (FN2) PETITIONER'S CONVICTION IS HARDLY SURPRISING, FOR
THE PROSECUTION'S CASE CONSISTED IN LARGE PART OF A POTENT MELANGE OF
ASSORTED TYPES OF INADMISSIBLE EVIDENCE - INTRODUCED WITHOUT OBJECTION
BY PETITIONER.  (FN3)  BUT PETITIONER SUFFERED AS MUCH FROM ERRORS OF
OMISSION AS HE DID FROM ERRORS OF COMMISSION.  PETITIONER NOW ALLEGES -
AND RESPONDENT DOES NOT DENY - THAT THE VICTIM OF THE ALLEGED FORGERY
WAS PETITIONER'S MOTHER-IN-LAW AND THAT THE PRINCIPAL PROSECUTION
WITNESS WAS HIS BROTHER-IN-LAW, A "BITTER ENEMY"; (FN4) BUT PETITIONER
INTRODUCED NO EVIDENCE TO THIS EFFECT AT THE TRIAL.  (FN5)  NOR IS THIS
STRANGE, FOR PETITIONER'S HALTING ATTEMPTS TO DEFEND HIMSELF DISCLOSE
HIS UTTER INEPTNESS IN THE COURTROOM.  AFTER THE PROSECUTION HAD
EXAMINED ITS WITNESSES - UNHAMPERED BY SEARCHING CROSS-EXAMINATION -
PETITIONER CONDUCTED WHAT RESPONDENT TERMS "A PREMEDITATED TYPE OF
DEFENSE WHICH MIGHT HAVE BEEN SUCCESSFUL ON ANOTHER JURY." 

ITEM: 

"DIRECT EXAMINATION BY MR. PARKER: 

"Q.  TED, YOU GO AHEAD AND TELL THE COURT ABOUT MY CONDITION AND HOW
YOU HAVE KNOWN ME - TELL THE JURY? 

"A.  WELL, DO I UNDERSTAND IT RIGHT? 

"Q.  HUH? 

"A.  YOU MEAN YOUR PHYSICAL CONDITION, SO FORTH AND SO ON? 

"Q.  YES.  JUST GO AHEAD AND TELL THE JURY ABOUT WHAT YOU KNOW? 

"A.  WELL, HIS PHYSICAL CONDITION, ACCORDING TO EVERYTHING, IS BAD
OR, AT LEAST, THE DOCTORS SAY SO, YOU KNOW.  I COULDN'T - AS FAR AS THE
CHECKS, I DON'T KNOW; BUT, I DO KNOW THAT HE NEEDS MEDICAL CARE.  IT
THAT WHAT YOU MEANT, GEORGE? 

"Q.  YES, I GUESS SO; JUST GO AHEAD AND TELL THEM WHAT YOU KNOW ABOUT
ME.  THAT IS ALL - ONLY - THAT IS ALL I WANT TO ASK - I AM JUST LEAVING
MINE UP TO THEM, YOU KNOW? 

"THE COURT.  DO YOU KNOW WHAT HE IS DRIVING AT - WHAT HE WANTS? 

"A.  WELL, IF I UNDERSTOOD IT, THE CONDITION, YOU KNOW: 

"THE COURT.  THAT IS UP TO YOU TOO. 

"(THE PROSECUTOR).  YOU GOT ANYTHING ELSE? 

"MR. PARKER.  NO. GO AHEAD AND ASK HIM." 

ITEM: 

"THE COURT.  ARE YOU THROUGH? 

"MR. PARKER.  JUDGE, HERE ARE SOME LETTERS I WOULD LIKE FOR THE JURY
TO SEE. 

"THE COURT.  WE CAN'T GIVE THE LETTERS TO THE JURY. 

"MR. PARKER.  FOR - FROM THE DOCTORS? 

"THE COURT.  NO, SIR. 

"MR. PARKER.  THAT IS ALL." 

THIS IS ENOUGH TO GIVE THE FLAVOR OF THE "TRIAL."  IT IS DIFFICULT TO
RECALL A CASE WHICH MORE CLEARLY ILLUSTRATES THE HELPLESSNESS OF THE
LAYMAN WHEN CALLED UPON TO DEFEND HIMSELF AGAINST A CRIMINAL CHARGE. 
JUDGE, NOW CHIEF JUDGE, RIVES, WHO DISSENTED FROM THE JUDGMENT OF THE
COURT OF APPEALS, WAS CLEARLY CORRECT IN STATING: 

"UPON SUCH A RECORD, IT WOULD APPEAR THAT PARKER'S EFFORTS TO DEFEND
HIMSELF WERE LITTLE SHORT OF FARCICAL.  IN VIEW OF THE SMALL AMOUNTS OF
THE CHECKS, HIS FAMILY CONNECTION WITH THE QUATTLEBAUMS, AND THE OPEN
WAY IN WHICH THE CHECKS WERE PAYABLE TO AND ENDORSED BY PARKER, IT IS
QUITE POSSIBLE THAT HE MAY HAVE HAD A DEFENSE TO THE CHARGE OF FORGERY,
OR AT LEAST THAT MITIGATING CIRCUMSTANCES MIGHT HAVE BEEN SHOWN.  THE
RECORD  ...  SHOWS THAT HE SUFFERED BADLY FROM THE LACK OF ASSISTANCE
OF COUNSEL, AND TENDS TO CORROBORATE HIS CLAIM OF EXTREME ILLNESS." 
258 F.2D 937, 944. 

BUT GEORGE PARKER'S UNHAPPY EXPERIENCE WITH THE LAW WAS NOT DESTINED
TO END WITH THE TRIAL.  INSTEAD, TIME AFTER TIME THE COURTS HAVE TURNED
ASIDE HIS APPLICATIONS FOR REDRESS.  THERE HAS HARDLY BEEN A MINUTE IN
THE PAST FIVE YEARS THAT PARKER'S CASE HAS NOT BEEN BEFORE A COURT.  HE
WAS CONVICTED IN NOVEMBER, 1954, AND ON MARCH 23, 1955, THE COURT OF
CRIMINAL APPEALS OF TEXAS AFFIRMED HIS CONVICTION IN A BRIEF OPINION. 
276 S.W.2D 533.  PARKER THEN APPLIED TO THE COURT OF CRIMINAL APPEALS
FOR HABEAS CORPUS, BUT HIS PETITION WAS DENIED ON SEPTEMBER 21, 1955,
WITHOUT A HEARING.  ON FEBRUARY 27, 1956, THIS COURT DENIED
CERTIORARI.  (FN6)  350 U.S. 971.  NEXT, ON MAY 31, 1956, PARKER TURNED
TO THE FEDERAL DISTRICT COURT AND SOUGHT RELIEF BY WAY OF HABEAS
CORPUS.  THE DISTRICT JUDGE DENIED HIS PETITION ON JUNE 24, 1957, AFTER
HIS THRICE-REPEATED REQUEST FOR A LAWYER HAD BEEN THRICE-IGNORED.  THE
COURT OF APPEALS AFFIRMED ON AUGUST 29, 1958.  258 F.2D 937.  PARKER
PETITIONED FOR CERTIORARI ON OCTOBER 24, 1958; AND THIS COURT GRANTED
THE PETITION ON MARCH 2, 1959.  359 U.S. 924.  AT LAST AN ATTORNEY WAS
APPOINTED TO REPRESENT PARKER'S INTERESTS.  359 U.S. 951.  THEN, ON
JUNE 6, 1959, PARKER WAS RELEASED FROM THE PENITENTIARY - ALMOST FIVE
YEARS AFTER HIS CONVICTION, THREE YEARS AFTER HE HAD APPLIED TO THE
FEDERAL DISTRICT COURT FOR RELIEF, MORE THAN SEVEN MONTHS AFTER HE HAD
PETITIONED THIS COURT FOR CERTIORARI, AND MORE THAN THREE MONTHS AFTER
CERTIORARI HAD BEEN GRANTED.  NOW THAT PETITIONER HAS DUTIFULLY
FULFILLED THE REQUIREMENT THAT HE EXHAUST - AN APT WORD - ALL OTHER
REMEDIES, (FN7) HE IS TOLD THAT IT IS TOO LATE FOR THE COURT TO ACT. 

I. 

THE COURT DOES NOT SUGGEST THAT THIS STRANGE RESULT IS A HAPPY ONE. 
BUT IT APPEARS TO BELIEVE IT IS BOUND BY PRECEDENT TO THE VIEW THAT,
BECAUSE OF THE NATURE OF THE HABEAS CORPUS REMEDY, "IT IS A CONDITION
UPON THIS COURT'S JURISDICTION  ...  THAT THE PETITIONER BE IN CUSTODY
WHEN THAT JURISDICTION CAN BECOME EFFECTIVE."  CONSEQUENTLY, THE COURT
DOES NOT EXPRESS ANY VIEW ON THE MOOTNESS QUESTION CONSIDERED DE NOVO. 
SINCE, AS WILL APPEAR, I DO NOT REGARD THE DECISIONS UPON WHICH THE
COURT RELIES AS AT ALL DECISIVE, I AM OBLIGED TO CONSIDER WHETHER THE
HABEAS CORPUS STATUTE, 28 U.S.C. SECS. 2241-2254, ENTITLES US TO PASS
UPON THE MERITS OF THIS CONTROVERSY.  I CONCLUDE THAT IT DOES. 

IT IS QUITE TRUE THAT THE STATUTE PROVIDES THAT THE WRIT OF HABEAS
CORPUS WILL NOT ISSUE UNLESS THE APPLICANT IS "IN CUSTODY."  28 U.S.C.
SEC. 2241(C).  BUT THE STATUTE DOES NOT IMPOSE THIS SAME RESTRICTION
UPON THE GRANT OF RELIEF.  RATHER, THE FEDERAL COURTS ARE GIVEN A BROAD
GRANT OF AUTHORITY TO "DISPOSE OF THE MATTER AS LAW AND JUSTICE
REQUIRE."  28 U.S.C. SEC. 2243.  IN THE CASE AT BAR, THE "IN CUSTODY"
PREREQUISITE TO ISSUANCE OF THE WRIT IS NO LONGER RELEVANT, BECAUSE THE
FUNCTION OF THE WRIT - TO PROVIDE AND TO FACILITATE INQUIRY INTO THE
VALIDITY OF THE APPLICANT'S CLAIM - HAS ALREADY BEEN FULLY SERVED. 
(FN8)  THE DISTRICT JUDGE ORDERED THAT PETITIONER'S APPLICATION BE
HEARD UPON AFFIDAVITS, DEPOSITIONS, AND THE RECORD OF THE TRIAL, (FN9)
AND THE LATTER ALONE CONCLUSIVELY SUBSTANTIATES PETITIONER'S
ALLEGATIONS.  THUS ALL THAT REMAINS IS TO DETERMINE WHAT FORM OF RELIEF
SHOULD BE GIVEN.  UNDER THE CIRCUMSTANCES OF THIS CASE, "LAW AND
JUSTICE REQUIRE" THAT THE PATENT INVALIDITY OF PARKER'S CONVICTION BE
PROCLAIMED. 

GRANTING PARKER RELIEF WOULD NOT ONLY COMPORT WITH THE STATUTORY
MANDATE, BUT WOULD ALSO BE IN KEEPING WITH THE SPIRIT OF THE WRIT. 
HABEAS CORPUS, WITH AN ANCESTRY REACHING BACK TO ROMAN LAW, (FN10) HAS
BEEN OVER THE CENTURIES A MEANS OF OBTAINING JUSTICE AND MAINTAINING
THE RULE OF LAW WHEN OTHER PROCEDURES HAVE BEEN UNAVAILABLE OR
INEFFECTIVE.  THE EARLY YEARS OF ITS DEVELOPMENT IN ENGLAND WERE
DISTINGUISHED BY THE ROLE IT PLAYED IN SECURING ENFORCEMENT OF THE
GUARANTEES OF MAGNA CHARTA.  (FN11)  BUT EVEN THE GREAT WRIT WAS NOT
SECURE FROM THE PRESSURES OF THE ENGLISH CROWN, AND PERHAPS THE MOST
EFFECTIVE METHOD OF EVISCERATING THE REMEDY PROVED TO BE
PROCRASTINATION.  (FN12) ABUSES SUCH AS THE DELAY OF OVER FOUR MONTHS
IN THE FAMOUS JENKES CASE FINALLY CAUSED PARLIAMENT TO ENACT THE HABEAS
CORPUS ACT OF 1679, 31 CAR.  II, C. 2, WHICH REQUIRED RETURNS ON THE
WRIT TO BE MADE WITHIN SPECIFIED PERIODS OF TIME AND WHICH PROSCRIBED
THE JUDICIARY'S TACTIC OF REFUSING TO ISSUE THE WRIT DURING "VACATION
TIME."  (FN13)  THE SUMMARY NATURE OF THE REMEDY THUS BECAME
ESTABLISHED, AND OUR OWN STATUTORY WRIT HAS THIS SAME STAMP.  (FN14) 

THE GENERAL PROBLEM WE CONFRONT IN THE CASE AT BAR, THEN, IS HARDLY
NOVEL IN THE HISTORY OF THE WRIT - AN INTOLERABLE DELAY IN AFFORDING
JUSTICE AND THE ABSENCE OF ANY OTHER REMEDY.  (FN15)  THE CAUSES, TO BE
SURE, HAVE CHANGED WITH THE TIMES.  INSTEAD OF THE ARBITRARINESS OF
JUDGES, PARKER HAS HAD TO CONTEND WITH THE TIME-CONSUMING NATURE OF OUR
SYSTEM OF APPELLATE REVIEW AND COLLATERAL ATTACK.  WE CANNOT EXPECT
HISTORY TO TELL US EXACTLY HOW TO COPE WITH THIS PROBLEM, BECAUSE IT
SIMPLY DID NOT EXIST IN THE EARLY DAYS OF THE COMMON-LAW WRIT, WHEN
THERE WAS LITTLE IF ANY APPELLATE REVIEW OF THE THEN RELATIVELY SIMPLE
HABEAS CORPUS PROCEEDINGS.  (FN16)  BUT HISTORY DOES PROVIDE GENERAL
GUIDANCE.  THIS GUIDANCE IS INCOMPATIBLE WITH THE IDEA THAT THE WRIT
DESIGNED AS AN EFFECTIVE AGENT OF JUSTICE HAS BECOME FOSSILIZED SO THAT
OLD PROBLEMS, ONCE THOUGHT TO HAVE BEEN SOLVED, ARE NOW INSURMOUNTABLE
BECAUSE THEY HAVE TAKEN SLIGHTLY NEW FORMS.  THE COURT HAS NOT
HESITATED TO EXPAND THE SCOPE OF HABEAS CORPUS FAR BEYOND ITS
TRADITIONAL INQUIRY INTO MATTERS OF TECHNICAL "JURISDICTION."  THE
STATUTE PERMITTED THIS ADAPTATION IN THE INTERESTS OF "LAW AND
JUSTICE," AND THE COURT HAS RESPONDED TO THE DEMANDS OF THAT COMPELLING
STANDARD.  WE HAVE THE SAME LATITUDE IN THIS CASE, AND THE CHARACTER OF
THE WRIT DOES NOT REQUIRE US TO IMPOSE UPON APPLICANTS WHAT WILL AMOUNT
TO A "TIME-IS-OF-THE-ESSENCE" STRAIT JACKET. 

  II. 

THE COURT APPARENTLY BELIEVES THAT THESE CONSIDERATIONS ARE
FORECLOSED BY PRIOR DECISIONS.  THE FACT IS, HOWEVER, THAT WHILE THE
WRIT-REMEDY ARGUMENT SEEMS NEVER TO HAVE BEEN SQUARELY PRESENTED TO
THIS COURT, THE WEIGHT OF AUTHORITY FAVORS PETITIONER. 

IN POLLARD V. UNITED STATES, 352 U.S. 354, THE COURT WAS CONFRONTED
WITH A MOOTNESS QUESTION IDENTICAL TO THAT PRESENTED HERE.  POLLARD
INVOLVED A COLLATERAL ATTACK UPON A CONVICTION BY WAY OF MOTION UNDER
28 U.S.C. SEC. 2255.  AFTER CERTIORARI HAD BEEN GRANTED, THE PETITIONER
WAS RELEASED FROM PRISON.  NEVERTHELESS, THIS COURT HELD THAT THE CASE
WAS NOT MOOT.  BUT, JUST AS THE HABEAS CORPUS STATUTE PROVIDES THAT THE
WRIT "SHALL NOT EXTEND TO A PRISONER UNLESS  ...  HE IS IN CUSTODY,"
(FN17) SO TOO IS SEC. 2255 AVAILABLE ONLY TO A "PRISONER IN CUSTODY
UNDER SENTENCE OF A COURT."  MOREOVER, AS THIS COURT HAS NOTED, SEC.
2255 AFFORDS THE SAME RELIEF AS HABEAS CORPUS, WITH THE DIFFERENCE,
WHICH IS NOT MATERIAL HERE, THAT A SEC. 2255 MOTION IS FILED IN THE
SENTENCING COURT INSTEAD OF IN THE COURT OF THE DISTRICT OF
INCARCERATION.  (FN18)  CONSEQUENTLY, IF POLLARD'S CLAIM WAS NOT MOOT,
IT IS DIFFICULT TO PERCEIVE WHY PARKER'S CLAIM IS. 

THE COURT RECOGNIZES THE DIFFICULTY POSED BY POLLARD, AND SOLVES IT
BY STATING THAT THIS ASPECT OF POLLARD WAS PREDICATED UPON AN
"UNCONSIDERED ASSUMPTION" WHICH WAS OVERRULED BY HEFLIN V. UNITED
STATES, 358 U.S. 415, "AFTER FULL DELIBERATION."  BUT HEFLIN DID NOT
PURPORT TO DISCARD POLLARD, AND THERE IS NO INHERENT INCONSISTENCY
BETWEEN THESE TWO DECISIONS.  IN HEFLIN, THE COURT DECIDED THAT A
PRISONER COULD NOT SECURE SEC. 2255 RELIEF FROM A SENTENCE WHICH HE HAD
NOT YET BEGUN TO SERVE BECAUSE HE WAS NOT YET "IN CUSTODY" PURSUANT TO
THAT SENTENCE.  BUT THE MOOTNESS PROBLEM DEALT WITH IN POLLARD WAS NOT
INVOLVED IN HEFLIN.  A CONSTRUCTION OF SEC. 2255 SIMILAR TO THE
CONSTRUCTION OF THE HABEAS CORPUS STATUTE PROPOSED ABOVE WOULD
HARMONIZE HEFLIN AND POLLARD; IT IS ONLY THE COURT'S OPINION IN THIS
CASE WHICH TENDS TO MAKE THEM IRRECONCILABLE.  THUS THE COURT'S
ARGUMENT COMES FULL CIRCLE. 

MOREOVER, IT IS CURIOUS THAT THE COURT, IN DEALING WITH THE CASES
UPON WHICH IT RELIES, DOES NOT EXHIBIT THE SAME ATTITUDE THAT IS
REFLECTED BY ITS TREATMENT OF POLLARD.  THE THREE CASES WHICH
CONSTITUTE THE PRINCIPAL BASIS FOR THE COURT'S JUDGMENT ARE WEBER V.
SQUIER, 315 U.S. 810; TORNELLO V. HUDSPETH, 318 U.S. 792; AND ZIMMERMAN
V. WALKER, 319 U.S. 744.  (FN19)  WHILE IN POLLARD THE COURT RENDERED
JUDGMENT AFTER PLENARY CONSIDERATION, IN THESE THREE CASES THE COURT
SIMPLY DENIED CERTIORARI, AND IT DID SO IN TERSE ORDERS WITHOUT BENEFIT
OF BRIEFS OR ORAL ARGUMENTS.  THE OPINION OF THE COURT IN THE CASE AT
BAR HARDLY SEEMS CONSISTENT WITH THIS COURT'S OFT-REPEATED WARNINGS
CONCERNING THE LACK OF SIGNIFICANCE OF DENIALS OF CERTIORARI. 
FURTHERMORE, WHEN THE RECORDS IN WEBER, TORNELLO, AND ZIMMERMAN ARE
EXAMINED, IT BECOMES UNMISTAKABLY CLEAR THAT THE ORDERS IN THOSE CASES
WERE NOT BASED UPON THE THEORY NOW ESPOUSED BY THE COURT. 

WEBER WAS THE FIRST OF THE TRIO.  THERE THE PETITIONER WAS PAROLED
WHILE HIS PETITION FOR CERTIORARI WAS PENDING, AND THE COURT THEREUPON
DENIED THE PETITION ON GROUNDS OF MOOTNESS.  SINCE A LOWER COURT HAD
ISSUED A WRIT OF HABEAS CORPUS PRIOR TO THE PAROLE, WEBER WOULD BE
DIRECTLY IN POINT IF THE COURT'S ORDER HAD RESTED UPON THE PREMISE THAT
PETITIONER, AS A PAROLEE, WAS NO LONGER IN CUSTODY WITHIN THE MEANING
OF THE HABEAS CORPUS STATUTE.  BUT THE RESPONDENT DID NOT SUGGEST THAT
THE PETITION BE DENIED ON THIS GROUND.  RATHER, HIS SOLE ARGUMENT WAS
THAT THE CASE WAS MOOT BECAUSE THE PETITIONER WAS NO LONGER IN HIS
CUSTODY.  THE ONLY CASE RESPONDENT CITED, VAN METER V. SANFORD, 99 F.2D
511, HELD THAT A HABEAS CORPUS ACTION BECOMES MOOT WHEN THE RESPONDENT
LOSES CUSTODY AND IS THEREBY DISABLED FROM COMPLYING WITH THE ORDER
WHICH MIGHT BE NECESSARY UPON REMAND - IN WEBER'S CASE, AN ORDER OF
DISCHARGE.  IT WAS THIS THEORY THE COURT ADOPTED IN DENYING CERTIORARI
BECAUSE PETITIONER WAS "NO LONGER IN THE RESPONDENT'S CUSTODY."  (FN20)
IT IS INSTRUCTIVE TO NOTE THAT THE LANGUAGE OF THE WEBER ORDER (FN21)
IS IDENTICAL TO THE LANGUAGE THE COURT USED SHORTLY THEREAFTER TO
DISPOSE OF A CASE ON GROUNDS OF MOOTNESS WHERE THE PETITIONER HAD BEEN
TRANSFERRED FROM ONE CUSTODIAN TO ANOTHER, BUT WHERE HE WAS STILL IN
THE PENITENTIARY.  SEE UNITED STATES EX REL. INNES V. CRYSTAL, 319 U.S.
755.  WHATEVER MAY BE SAID OF THE WEBER THEORY OF MOOTNESS, (FN22) IT
IS IRRELEVANT TO THE INSTANT CASE, WHERE IT WOULD BE UNNECESSARY TO
ISSUE AN ORDER OF DISCHARGE. 

THE SECOND CASE DISCUSSED BY THE COURT IS TORNELLO V. HUDSPETH,
SUPRA, WHERE A PETITION FOR CERTIORARI WAS DENIED BECAUSE "PETITIONER
HAS BEEN PARDONED BY THE PRESIDENT AND  ...  IS NO LONGER IN
RESPONDENT'S CUSTODY."  SINCE THE COURT USED THE VERBAL FORMULA OF
WEBER AND INNES, AND SINCE THE ONLY CASE CITED WAS WEBER, IT IS EVIDENT
THAT THE COURT RELIED ENTIRELY UPON THE WEBER THEORY SO FAR AS THE
CUSTODY QUESTION WAS CONCERNED.  IT IS UNFORTUNATE THAT THE COURT DID
NOT CONSIDER THE SIGNIFICANCE OF THE FACT THAT THERE WAS NO CUSTODY AT
ALL IN TORNELLO AND THAT HENCE NO ORDER OF DISCHARGE WOULD HAVE BEEN
NECESSARY.  BUT THE COURT'S FAILURE TO EXAMINE THIS ASPECT OF THE
MOOTNESS PROBLEM ROBS THE CASE OF CONTROLLING AUTHORITY.  NO DOUBT THE
COURT'S UNCRITICAL APPLICATION OF THE WEBER RULE IS ATTRIBUTABLE NOT
ONLY TO THE FACT THAT THE PARTIES DID NOT DISCUSS THE MOOTNESS ISSUE AT
ALL, BUT ALSO TO THE COURT'S RELIANCE UPON THE FULL AND UNCONDITIONAL
PARDON AS AN ALTERNATIVE GROUND OF MOOTNESS.  (FN23) 

NOT SURPRISINGLY, PERHAPS, THE ORDER IN THE THIRD CASE, ZIMMERMAN V.
WALKER, SUPRA, RELIED SOLELY UPON WEBER AND TORNELLO, AND REPEATED THE
"RELEASED FROM THE RESPONDENT'S CUSTODY" PHRASE.  IN THAT CASE,
RESPONDENT FILED A SUGGESTION OF MOOTNESS IN WHICH HE MENTIONED THE
TOTAL LACK OF CUSTODY, BUT IN WHICH HE RELIED PRIMARILY UPON THE GROUND
WHICH HAD PROVED SUCCESSFUL IN THE PAST - THE ABSENCE OF CUSTODY BY
HIM.  BUT IT IS UNNECESSARY TO EXPLORE THIS CASE FURTHER, INASMUCH AS
NO WRIT OR RULE TO SHOW CAUSE HAD EVER ISSUED.  SINCE CUSTODY IS A
PREREQUISITE FOR ISSUANCE OF THE WRIT, THE CASE WAS CLEARLY MOOT; BUT
IT IS JUST AS CLEARLY IRRELEVANT. 

ORDERS OF THIS CHARACTER DO NOT PROVIDE A SOLID BASIS FOR DISPOSITION
OF PARKER'S CASE.  THE "LAW AND JUSTICE" STANDARD OF THE STATUTE DOES. 

         III. 

THE CONCURRING OPINION RAISES ANOTHER OBJECTION TO GRANTING PARKER
RELIEF.  WHILE THE COURT'S OPINION SIMPLY CONSTRUES THE STATUTE, THE
CONCURRING OPINION CONSTRUES THE CONSTITUTION.  THE COURT'S OPINION
WOULD NOT FORECLOSE CONGRESS FROM AUTHORIZING RELIEF IN A CASE LIKE
PARKER'S; THE CONCURRING OPINION WOULD.  WHILE THE COURT'S DECISION IS
BASED ON THE THEORY THAT NOTHING CAN BE DONE FOR PARKER BECAUSE OF THE
NATURE OF THE RELIEF AUTHORIZED BY THE HABEAS CORPUS STATUTE, THE
CONCURRENCE IS GROUNDED UPON THE VIEW THAT PARKER HAS SUCH AN
INSUBSTANTIAL INTEREST IN SECURING AN ADJUDICATION THAT HIS CLAIM COULD
NOT PRESENT A "CASE OR CONTROVERSY" UNDER ART. III, SEC. 2 OF THE
CONSTITUTION, REGARDLESS OF WHAT RELIEF A STATUTE WERE TO AUTHORIZE. 
(FN24) 

ONE COULD TAKE EXCEPTION TO THE FACTUAL PREMISE OF THIS CONCLUSION. 
THE EVIDENCE OF RECORD WHICH IS RELIED UPON TO ESTABLISH THE EXISTENCE
AND NUMBER OF PARKER'S CONVICTIONS LEAVES MUCH TO BE DESIRED, (FN25)
AND THERE IS NOTHING TO INDICATE WHETHER PARKER HAS BEEN RELIEVED OF
THE CIVIL CONSEQUENCES OF ANY OF THESE CONVICTIONS UNDER STATUTES
DESIGNED TO MITIGATE THE EFFECT OF CIVIL DISABILITY LAWS.  (FN26)
MOREOVER, HARWELL V. MORRIS, 143 S.W.2D 809 (TEX. CIV. APP.), THE
DECISION WHICH THE CONCURRING OPINION CITES AS ESTABLISHING THAT
PARKER'S CONVICTIONS OUTSIDE OF TEXAS - IF STILL EFFECTIVE - WOULD
DEPRIVE HIM OF HIS VOTING RIGHTS IN TEXAS, IS NOT PERSUASIVE
AUTHORITY.  NOT ONLY WAS THE DECISION NOT REVIEWED BY THE TEXAS SUPREME
COURT, BUT IT WAS RENDERED IN THE CONTEXT OF AN ELECTION DISPUTE, WHERE
THE REAL ISSUE WAS NOT THE IMPACT UPON THE VOTER BUT THE IMPACT UPON
THE CANDIDATES.  CF. LOGAN V. UNITED STATES, 144 U.S. 263, 303.  IN ANY
EVENT, EVEN CONCEDING THE ACCURACY OF THE ASSUMPTION WITH RESPECT TO
PARKER'S PRIOR CONVICTIONS AND THE HARWELL ISSUE, IT IS ENTIRELY
POSSIBLE THAT THE CONVICTION IN THIS CASE WOULD OPERATE TO AUGMENT THE
PUNISHMENT SHOULD PARKER EVER AGAIN BE ADJUDGED GUILTY OF A CRIME IN
TEXAS OR IN ANY OTHER STATE. 

ASIDE FROM THESE CONSIDERATIONS, HOWEVER, THERE IS SOMETHING
FUNDAMENTALLY WRONG WITH THE THEORY THAT MOOTNESS SHOULD TURN UPON
WHETHER OR NOT A CONVICTED PERSON CAN RUN FOR OFFICE OR CAST A BALLOT. 
THE PRINCIPAL POLICY BASIS FOR THE DOCTRINE OF MOOTNESS, WHEN THAT TERM
IS EMPLOYED IN THE "CASE OR CONTROVERSY" CONTEXT, IS TO INSURE THAT THE
JUDICIARY WILL HAVE THE BENEFIT OF DECIDING LEGAL QUESTIONS IN A TRULY
ADVERSARY PROCEEDING IN WHICH THERE IS THE "IMPACT OF ACTUALITY,"
(FN27) AND IN WHICH THE CONTENTIOUSNESS OF THE PARTIES MAY BE RELIED
UPON TO BRING TO LIGHT ALL RELEVANT CONSIDERATIONS.  (FN28)  HERE THE
ISSUE IS SURELY NOT ABSTRACT.  THE CASE COMES TO US AFTER THE ACTIONS
COMPLAINED OF HAVE OCCURRED, AND WE HAVE THE ENTIRE TRIAL RECORD BEFORE
US.  MOREOVER, GEORGE PARKER'S INTEREST IN THIS LITIGATION IS QUITE
SUBSTANTIAL ENOUGH TO INSURE THAT HIS CASE HAS BEEN FULLY PRESENTED. 
(FN29)  CONVICTION OF A FELONY IMPOSES A STATUS UPON A PERSON WHICH NOT
ONLY MAKES HIM VULNERABLE TO FUTURE SANCTIONS THROUGH NEW CIVIL
DISABILITY STATUTES, BUT WHICH ALSO SERIOUSLY AFFECTS HIS REPUTATION
AND ECONOMIC OPPORTUNITIES.  (FN30)  AND THE FACT THAT A MAN HAS BEEN
CONVICTED BEFORE DOES NOT MAKE THE NEW CONVICTION INCONSEQUENTIAL. 
THERE IS, AFTER ALL, SUCH A THING AS REHABILITATION AND REINTEGRATION
INTO THE LIFE OF A COMMUNITY.  IN THIS CASE, FOR EXAMPLE, NONE OF
PARKER'S PREVIOUS CONVICTIONS WERE IN TEXAS, AND HE HAD BEEN OUT OF
JAIL FOR OVER FIVE YEARS AT THE TIME OF THE 1954 FORGERY TRIAL.  FIVE
YEARS OF LAW-ABIDING LIFE IN A NEW COMMUNITY GIVE PARKER A SIGNIFICANT
ENOUGH STAKE IN THE OUTCOME OF THIS ADJUDICATION TO PRECLUDE A FINDING
OF MOOTNESS.  FURTHERMORE, THERE IS AN IMPORTANT PUBLIC INTEREST
INVOLVED IN DECLARING THE INVALIDITY OF A CONVICTION OBTAINED IN
VIOLATION OF THE CONSTITUTION, AND, UNDER THE COURT'S DECISIONS, THIS
IS A CONSIDERATION RELEVANT TO THE MOOTNESS QUESTION.  (FN31) 

IN SUM, I CANNOT AGREE WITH THE COURT THAT GEORGE PARKER'S CASE COMES
TO US TOO LATE.  IT IS TOO LATE, MUCH TOO LATE, TO UNDO ENTIRELY THE
WRONG THAT HAS BEEN INFLICTED UPON HIM; BUT IT IS NOT TOO LATE TO KEEP
THE CONSTITUTIONAL BALANCE TRUE.  I DISSENT FROM THE NOTION THAT,
BECAUSE WE CANNOT DO MORE, WE SHOULD DO NOTHING AT ALL. 

FN1  "THE COURT.  DO YOU WANT A TRIAL BY JURY OR WITHOUT A JURY? 

"MR. PARKER.  WELL, IT IS IMMATERIAL TO ME, JUDGE.  I DON'T HAVE ANY
ATTORNEY. 

"THE COURT.  WELL, YOU ARE GOING TO HAVE TO MAKE UP YOUR MIND.  IT IS
CERTAINLY IMMATERIAL TO THE COURT. 

"MR. PARKER.  I GUESS A JURY THEN. 

     *         *         *         *         * 

"THE COURT.  DO YOU HAVE A LAWYER HIRED? 

"MR. PARKER.  NO, SIR, I DON'T. 

"THE COURT.  THE LAW DOES NOT REQUIRE THE COURT TO APPOINT AN
ATTORNEY TO REPRESENT A DEFENDANT WHERE HE HAS A TRIAL BY JURY AND IT
IS NOT THE PRACTICE OF THIS COURT TO APPOINT ANY ATTORNEY TO REPRESENT
THE DEFENDANT.  IT IS UP TO HIM TO ARRANGE FOR HIS OWN COUNSEL.  NOW,
IF YOU ARE ELIGIBLE FOR A SUSPENDED SENTENCE, WHY, THEN, THE COURT
WOULD GET SOME LAWYER TO ADVISE YOU ABOUT THE PROCEDURE IN FILING YOUR
APPLICATION FOR A SUSPENDED SENTENCE BUT ONLY FOR THAT PART AND ONLY IF
YOU ARE ELIGIBLE FOR A SUSPENDED SENTENCE.           *         *
*         *         * 

"MR. PARKER.  I WILL NOT APPLY FOR ANY SUSPENDED SENTENCE." 

FN2  FOR EXAMPLE, THE WOMAN ON WHOSE ACCOUNT THE CHECK WAS DRAWN WAS
NEVER CALLED AS A WITNESS.  THE ONLY EVIDENCE REGARDING PETITIONER'S
LACK OF AUTHORITY FROM HER TO SIGN THE CHECK IS CONTAINED IN THIS BIT
OF TESTIMONY - OF HIGHLY QUESTIONABLE ADMISSIBILITY - BY THE WOMAN'S
SON: 

"Q.  DID YOUR MOTHER TELL YOU THAT SHE AUTHORIZED HIM TO WRITE CHECKS
ON HER?    "A.  NO, SIR. 

    *         *         *         *         * 

"Q.  AND, YOUR MOTHER DIDN'T AUTHORIZE ANYONE TO USE THAT SIGNATURE? 

"A.  NO, SIR." 

FN3  IN HIS BRIEF, RESPONDENT STATED THAT IT WAS "NOT NECESSARY TO
DISCUSS" PETITIONER'S ARGUMENT THAT HIS TRIAL WAS GRAVELY INFECTED BY
ERROR, BECAUSE THESE MATTERS OF STATE LAW "ARE NOT PROPERLY BEFORE THIS
COURT."  OBVIOUSLY THEY ARE VERY MUCH BEFORE THE COURT IN A DEPRIVATION
OF COUNSEL CASE, FOR THEY ARE AMONG THE FACTORS WHICH INDICATE TO WHAT
DEGREE THE DEFENDANT HAS BEEN PREJUDICED.  ON ORAL ARGUMENT,
RESPONDENT'S COUNSEL, THE ASSISTANT ATTORNEY GENERAL OF TEXAS, FREELY
ANSWERED THE COURT'S QUESTIONS REGARDING THESE ISSUES, AND, WITH
ADMIRABLE CANDOR, EXPRESSED HIS VIEW THAT AS A MATTER OF FACT - THOUGH
NOT AS A MATTER OF LAW - NO LAYMAN COULD COMPETENTLY DEFEND HIMSELF
AGAINST A CRIMINAL CHARGE. 

FN4  THE ALLEGATION IS SUPPORTED BY AN AFFIDAVIT OF PETITIONER'S
WIFE. 

FN5  IN FACT, THE TESTIMONY OF THE BROTHER-IN-LAW CONVEYED THE
OPPOSITE IMPRESSION: 

"Q.  YOU KNOW G.L. PARKER, DON'T YOU? 

"A.  I KNOW OF HIM. 

"Q.  WELL, HE IS THE DEFENDANT SITTING HERE, ISN'T HE? 

"A.  I THINK SO. 

"Q.  WELL, AS A MATTER OF FACT, YOU KNOW HE IS, DON'T YOU, MR.
QUATTLEBAUM? 

"A.  YES. 

"Q.  HOW LONG HAVE YOU KNOWN HIM? 

"A.  WELL, A LONG TIME." 

FN6  PETITIONER SUFFERED THROUGHOUT FROM THE POVERTY WHICH PREVENTED
HIM FROM HIRING AN ATTORNEY AND FROM OBTAINING A TRANSCRIPT OF THE
RECORD OF HIS TRIAL.  LEFT TO HIS OWN DEVICES, HIS PETITIONS - AT LEAST
HIS FIRST PETITION TO THIS COURT - DID NOT SUFFICIENTLY REVEAL THE
PREJUDICE WHICH HE SUFFERED AT THE TRIAL BECAUSE OF THE FAILURE OF THE
TRIAL COURT TO APPOINT AN ATTORNEY. 

FN7  SEE 28 U.S.C. SECS. 2242, 2254; DARR V. BURFORD, 339 U.S. 200. 

FN8  SEE EX PARTE BAEZ, 177 U.S. 378, 389; INGERSOLL, HISTORY AND LAW
OF HABEAS CORPUS, 2.  IN BAEZ, THE COURT POINTED OUT THAT, AS A
PRACTICAL MATTER, THE WRIT COULD NOT BE ISSUED AND THE APPLICANT
PRODUCED FOR A HEARING BEFORE THE DATE SCHEDULED FOR HIS RELEASE, SO
THAT MOOTNESS COULD BE ANTICIPATED.  177 U.S., AT 389-390.  THIS WAS A
PROPER APPLICATION OF THE "IN CUSTODY" REQUIREMENT. 

FN9  28 U.S.C. SECS. 2246, 2247.  PETITIONER SECURED THE TRANSCRIPT
THROUGH THE FINANCIAL ASSISTANCE OF A FELLOW PRISONER TO THE EXTENT OF
$25. 

FN10  SEE CHURCH, HABEAS CORPUS (2D ED. 1893), 2-3. 

FN11  SEE 2 HALLAM, EUROPE DURING THE MIDDLE AGES, 552; 9
HOLDSWORTH'S HISTORY OF ENGLISH LAW 111-125; HURD, HABEAS CORPUS (2D
ED. 1876), 66-74. 

IT IS INSTRUCTIVE TO RECALL THE FOLLOWING PASSAGES OF THE MAGNA
CHARTA: 

"39.  NO FREE-MAN SHALL BE SEIZED, OR IMPRISONED, OR DISPOSSESSED, OR
OUTLAWED, OR IN ANY WAY DESTROYED; NOR WILL WE CONDEMN HIM, NOR WILL WE
COMMIT HIM TO PRISON, EXCEPTING BY THE LEGAL JUDGMENT OF HIS PEERS, OR
BY THE LAWS OF THE LAND. 

"40.  TO NONE WILL WE SELL, TO NONE WILL WE DENY, TO NONE WILL WE
DELAY RIGHT OR JUSTICE."  MAGNA CHARTA, REPRINTED IN S. DOC. NO. 232,
66TH CONG., 2D SESS. 17. 

FN12  "PREROGATIVE THEN REIGNED.  THE OBNOXIOUS MEMBERS OF THE LATE
PARLIAMENT WERE SEIZED AND IMPRISONED FOR WORDS SPOKEN IN DEBATE.  THE
WRIT OF HABEAS CORPUS WAS RENDERED POWERLESS EVEN TO LIBERATE THEM ON
BAIL BY THE SERVILE PROCRASTINATION OF THE COURT WHO DARED NOT
EXPRESSLY TO DENY THE RIGHT.  AND FINALLY JOHN ELLIOTT, THE MOST
DISTINGUISHED LEADER OF THE POPULAR PARTY, DOOMED TO IMPRISONMENT AND
LOADED WITH FINES BY A COURT USURPING JURISDICTION, DIED IN THE TOWER -
A MARTYR TO PARLIAMENTARY FREEDOM OF SPEECH."  HURD, HABEAS CORPUS (2D
ED. 1876), 78.  SEE ALSO 3 BLACKSTONE COMMENTARIES (15TH ED. 1809), 133
135; AUTHORITIES CITED IN NOTE 13, INFRA. 

FN13  "  ...  JENKES, A CITIZEN OF LONDON ON THE POPULAR OR FACTIOUS
SIDE, HAVING BEEN COMMITTED BY THE KING IN COUNCIL FOR A MUTINOUS
SPEECH IN GUILDHALL, THE JUSTICES AT QUARTER SESSIONS REFUSED TO ADMIT
HIM TO BAIL, ON PRETENCE THAT HE HAD BEEN COMMITTED BY A SUPERIOR
COURT; OR TO TRY HIM, BECAUSE HE WAS NOT ENTERED IN THE CALENDAR OF
PRISONERS.  THE CHANCELLOR, ON APPLICATION FOR A HABEAS CORPUS,
DECLINED TO ISSUE IT DURING THE VACATION; AND THE CHIEF-JUSTICE OF THE
KING'S BENCH, TO WHOM, IN THE NEXT PLACE, THE FRIENDS OF JENKES HAD
RECOURSE, MADE SO MANY DIFFICULTIES THAT HE LAY IN PRISON FOR SEVERAL
WEEKS."  HALLAM, HISTORY OF ENGLAND (8TH ED. 1855), 10-11.  SEE ALSO 3
BLACKSTONE COMMENTARIES (15TH ED. 1809), 134-135; CHURCH, HABEAS CORPUS
(2D ED. 1893), 24-25; 6 HOWELL'S STATE TRIALS 1190-1207; HURD, HABEAS
CORPUS (2D ED. 1876), 82.  IT IS PLAIN FROM THESE OTHER SOURCES THAT
THE "SEVERAL WEEKS" MENTIONED IN HALLAM'S ACCOUNT REFERS ONLY TO ONE
PERIOD OF JENKES' INCARCERATION.  THERE IS ALSO SOME DISPUTE AMONG
THESE AUTHORS WITH RESPECT TO THE HISTORICAL SIGNIFICANCE OF THE JENKES
CASE.  THE NATURE OF THE ABUSES WHICH LED TO PASSAGE OF THE ACT IS
CLEAR, HOWEVER; AND, FOR PRESENT PURPOSES, IT IS IMMATERIAL WHICH
PARTICULAR CASE AROUSED THE GREATEST PUBLIC SENTIMENT. 

FN14  UNDER OUR HABEAS CORPUS STATUTE, THE COURT IS REQUIRED TO ISSUE
THE WRIT OR A SHOW-CAUSE ORDER "FORTHWITH" UNLESS THE PETITION DOES NOT
STATE A CAUSE FOR RELIEF.  THE RETURN MUST NORMALLY BE MADE WITHIN
THREE DAYS, AND THE HEARING HELD WITHIN FIVE DAYS THEREAFTER.  28
U.S.C. SEC. 2243. 

FN15  RESPONDENT'S ATTORNEY, THE ASSISTANT ATTORNEY GENERAL OF TEXAS,
CONCEDED DURING ORAL ARGUMENT THAT THERE IS NO OTHER JUDICIAL AVENUE
OPEN TO PETITIONER. 

FN16  SEE 2 SPELLING, INJUNCTIONS (2D ED. 1901), 1159-1165.  CF.
INGERSOLL, HISTORY AND LAW OF HABEAS CORPUS, 32-33; 9 HOLDSWORTH'S
HISTORY OF ENGLISH LAW 123-124. 

FN17  28 U.S.C. SEC. 2241(C). 

FN18  SECTION 2255, OF COURSE, IS AVAILABLE ONLY WITH RESPECT TO
FEDERAL JUDGMENTS, WHEREAS HABEAS CORPUS IS AVAILABLE TO ATTACK EITHER
STATE OR FEDERAL JUDGMENTS. 

THE LEGISLATIVE HISTORY OF SEC. 2255 AND ITS RELATIONSHIP TO HABEAS
CORPUS ARE EXHAUSTIVELY DISCUSSED IN UNITED STATES V. HAYMAN, 342 U.S.
205, 210-219.  SEE ALSO HEFLIN V. UNITED STATES, 358 U.S. 415, 420-421
(CONCURRING OPINION).  WHILE I SHARE THE VIEWS EXPRESSED BY MR. JUSTICE
DOUGLAS IN HEFLIN, SUPRA, AT 417-418, I BELIEVE THAT IF SEC. 2255 AND
HABEAS CORPUS ARE TO BE TREATED AS SYNONYMOUS WHEN THE RESULT IS TO
DENY THEIR AVAILABILITY, THEY SHOULD BE TREATED IN THE SAME MANNER WHEN
THIS WOULD AFFORD AN APPLICANT RELIEF. 

FN19  THE COURT MENTIONS THREE OTHER DECISIONS, BUT APPARENTLY DOES
NOT REST UPON THEM.  IN MCNALLY V. HILL, 293 U.S. 131, THE COURT HELD
THAT A PERSON WHO WAS SERVING THE FIRST OF TWO CONSECUTIVE SENTENCES
COULD NOT ATTACK THE SECOND AT THAT TIME.  HIS HABEAS CORPUS REMEDY,
HELD THE COURT, LAY BEFORE HIM.  PETITIONER'S PROBLEM IS QUITE
DIFFERENT.  HIS REMEDY, UNDER THE COURT'S DECISION, IS GONE FOREVER. 
IT IS ALSO RELEVANT TO NOTE THAT IN MCNALLY THE COURT SUGGESTED THAT
THERE WAS ANOTHER TYPE OF RELIEF AVAILABLE TO THE PETITIONER EVEN
BEFORE HE COMMENCED SERVING HIS SECOND SENTENCE.  ID., AT 140.  JOHNSON
V. HOY, 227 U.S. 245, INVOLVED A HABEAS CORPUS ACTION BROUGHT PRIOR TO
TRIAL, WHICH OBVIOUSLY PRESENTS QUESTIONS ENTIRELY DIFFERENT FROM THOSE
POSED BY THE CASE AT BAR.  FOR A DISCUSSION OF EX PARTE BAEZ, 177 U.S.
378, SEE NOTE 8, SUPRA. 

FN20  HAD THE CASE BEEN ARGUED, CONCEIVABLY THE PETITIONER WOULD HAVE
URGED UPON THE COURT THE WRIT-REMEDY DISTINCTION, AND CONTENDED THAT NO
ORDER OF DISCHARGE WOULD BE NECESSARY IN HIS CASE BECAUSE PAROLE WAS
NOT CUSTODY.  IT IS HARDLY SURPRISING THAT THE COURT DID NOT EXPLORE
THIS INTRICATE PROBLEM SUA SPONTE; NOR IS IT SURPRISING THAT THE
PETITIONER DID NOT SUGGEST THIS APPROACH, INASMUCH AS THE COURT'S
OPINION LEFT OPEN THE POSSIBILITY THAT HE COULD MAINTAIN A HABEAS
CORPUS ACTION AGAINST A NEW RESPONDENT. 

IT MAY BE NOTED THAT THE COURTS OF APPEALS, IN CONSIDERING THE
DIFFICULT QUESTION WHETHER PAROLE IS SUFFICIENT RESTRAINT TO SERVE AS A
BASIS FOR A HABEAS CORPUS ACTION, SEEM TO HAVE TAKEN DIVERGENT VIEWS OF
THE SIGNIFICANCE OF WEBER.  THE WEBER ORDER, UNILLUMINED BY THE RECORD,
IS HARDLY A MODEL OF CLARITY, AND IT IS NATURAL ENOUGH THAT SOME -
THOUGH NOT ALL - COURTS HAVE BEEN MISLED.  COMPARE SIERCOVICH V.
MCDONALD, 193 F.2D 118 (C.A. 5TH CIR.), AND ADAMS V. HIATT, 173 F.2D
896 (C.A. 3D CIR.), WITH FACTOR V. FOX, 175 F.2D 626, 628-629 (C.A. 6TH
CIR.), AND SHELTON V. UNITED STATES, 242 F.2D 101, 109-110 (C.A. 5TH
CIR.).  SEE ALSO ANDERSON V. CORALL, 263 U.S. 193, 196.  ("WHILE PAROLE
IS AN AMELIORATION OF PUNISHMENT, IT IS IN LEGAL EFFECT
IMPRISONMENT.")  BUT CF. WALES V. WHITNEY, 114 U.S. 564. 

FN21  THE ORDER READS AS FOLLOWS: 

"PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT DENIED ON THE GROUND THAT THE CAUSE IS MOOT, IT
APPEARING THAT PETITIONER HAS BEEN RELEASED UPON ORDER OF THE UNITED
STATES BOARD OF PAROLE AND THAT HE IS NO LONGER IN THE RESPONDENT'S
CUSTODY.  THE MOTION FOR LEAVE TO PROCEED FURTHER IN FORMA PAUPERIS IS
THEREFORE ALSO DENIED." 

FN22  THE COURT FINALLY CAME TO GRIPS WITH THIS PROBLEM IN EX PARTE
ENDO, 323 U.S. 283, 304-307. 

FN23  THIS ASPECT OF THE MOOTNESS QUESTION AS IT RELATES TO THE
INSTANT CASE IS DISCUSSED INFRA, PP. 591-594.  IT MAY BE NOTED THAT
TORNELLO'S CONCLUSION AS TO THE EFFECT OF A PARDON IS NOT
UNCHALLENGEABLE.  SEE 3 THE ATTORNEY GENERAL'S SURVEY OF RELEASE
PROCEDURES 267-294. 

FN24  SEE MUSKRAT V. UNITED STATES, 219 U.S. 346. 

FN25  AT THE TRIAL, THE SHERIFF TESTIFIED FROM AN F.B.I. RECORD WITH
RESPECT TO PARKER'S PRIOR CONVICTIONS.  THE RECORD WAS NOT INTRODUCED
INTO EVIDENCE, ITS NATURE WAS NOT DISCLOSED, AND IT WAS NOT
AUTHENTICATED IN ANY MANNER.  MOREOVER, THE SHERIFF'S DESCRIPTION OF
THE INFORMATION IN THE RECORD WAS CONFUSED, AND, IN RESPONSE TO A
QUESTION BY PARKER, HE CONCEDED THAT "SOME" OF THE CASES WERE NEVER
"DISPOSED OF," SO FAR AS THE RECORD INDICATED.  DURING THE HABEAS
CORPUS PROCEEDINGS, RESPONDENT SUBMITTED A RECORD FROM THE TEXAS
DEPARTMENT OF PUBLIC SAFETY WHICH PURPORTED TO SUMMARIZE PARKER'S
CRIMINAL HISTORY.  IT IS, SO FAR AS APPEARS, MERELY A COMPILATION OF
INFORMATION FROM VARIOUS SOURCES FOR DEPARTMENT USE, AND IT WAS
SUBMITTED ONLY AS EVIDENCE THAT PARKER WAS BEING HELD PURSUANT TO THE
JUDGMENT IN THIS CASE.  ITS USEFULNESS WITH REGARD TO THE MOOTNESS
ISSUE IS FURTHER DIMINISHED BY THE FACT THAT THE PARKER, OR PARKERS,
WHOSE CONVICTIONS APPEAR ON THE RECORD ARE LISTED UNDER SEVEN DIFFERENT
FIRST AND MIDDLE NAMES. 

FN26  SEE 19 ST. JOHN'S L. REV. 185; 59 YALE L.J. 786, 787, N. 3. 

FN27  FRANKFURTER, A NOTE ON ADVISORY OPINIONS, 37 HARV. L. REV.
1002, 1006. 

FN28  SEE UNITED STATES V. JOHNSON, 319 U.S. 302, 304-305; BISCHOFF,
STATUS TO CHALLENGE CONSTITUTIONALITY, IN SUPREME COURT AND SUPREME LAW
(CAHN ED.), 26 ET SEQ.; FREUND, ON UNDERSTANDING THE SUPREME COURT, 84
86; NOTE, 103 U. OF PA. L. REV. 772-773. 

FN29  OF OPINIONS EXPRESSING A VIEW CONSISTENT WITH THE CONCURRING
OPINION, THE SUPREME COURT OF WASHINGTON HAS SAID, "THOSE DECISIONS, IT
SEEMS TO US, LOSE SIGHT OF  ...  THAT DAMAGING EFFECT OF SUCH A
JUDGMENT WHICH EVERYBODY KNOWS REACHES FAR BEYOND ITS SATISFACTION BY
PAYMENT OF A FINE OR SERVING A TERM OF IMPRISONMENT."  STATE V.
WINTHROP, 148 WASH. 526, 534, 269 P. 793, 797.  SEE ALSO IN RE BYRNES,
26 CAL. 2D 824, 161 P.2D 376; PEOPLE V. MARKS, 64 MISC. 679, 120 N.Y.
SUPP. 1106; VILLAGE OF AVON V. POPA, 96 OHIO APP. 147, 121 N.E.2D 254;
ROBY V. STATE, 96 WIS. 667, 71 N.W. 1046; NOTE, 103 U. OF PA. L. REV.
772, 779-782, 795.  BUT CF. ST. PIERRE V. UNITED STATES, 319 U.S. 41,
WHERE THE COURT HELD MOOT ON DIRECT APPEAL THE CASE OF A PERSON WHO HAD
SERVED HIS SENTENCE FOR CONTEMPT BEFORE CERTIORARI WAS GRANTED.  THAT
CASE IS READILY DISTINGUISHABLE IN VIEW OF THE FACTORS THE COURT
STRESSED AS RELEVANT.  FOR EXAMPLE, THE COURT STATED THAT IT DID NOT
APPEAR "THAT PETITIONER COULD NOT HAVE BROUGHT HIS CASE TO THIS COURT
FOR REVIEW BEFORE THE EXPIRATION OF HIS SENTENCE."  MOREOVER, THE
GOVERNMENT ADMITTED THAT PETITIONER WOULD AGAIN BE REQUIRED TO TESTIFY
BEFORE A GRAND JURY AND THAT HIS COMMITMENT WOULD AGAIN BE SOUGHT IF HE
REFUSED, SO THAT, AS THE COURT NOTED, THERE MIGHT VERY WELL BE "AMPLE
OPPORTUNITY TO REVIEW SUCH A JUDGMENT  ...  ."  ID., AT 43.  IT SEEMS
REASONABLY CLEAR ALSO THAT THE "COLLATERAL CONSEQUENCES" CASES HAVE
CONSIDERABLY UNDERMINED THE PHILOSOPHY OF ST. PIERRE.  SEE POLLARD V.
UNITED STATES, SUPRA, AT 358; UNITED STATES V. MORGAN, 346 U.S. 502,
512-513; FISWICK V. UNITED STATES, 329 U.S. 211, 220-223.  SEE ALSO
LAFFERTY V. DISTRICT OF COLUMBIA, 107 U.S. APP. D.C. 318, 277 F.2D 348,
WHERE THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SET
ASIDE A DECREE OF UNSOUNDNESS OF MIND AFTER THE INDIVIDUAL CONCERNED
WAS NO LONGER IN A MENTAL INSTITUTION AND WAS NOT MENTALLY ILL. 

POSSIBLY IT SHOULD BE NOTED, FOR THE SAKE OF COMPLETENESS, THAT NO
ONE HAS SUGGESTED THAT THE STATE'S INTEREST IN UPHOLDING THE VALIDITY
OF THIS CONVICTION IS INSUBSTANTIAL. 

FN30  FOR EXAMPLE, UNDER SEC. 504 OF THE LABOR-MANAGEMENT REPORTING
AND DISCLOSURE ACT OF 1959, PERSONS WHO HAVE BEEN CONVICTED OF
SPECIFIED CRIMES ARE INELIGIBLE TO SERVE FOR A FIVE-YEAR PERIOD IN
VARIOUS POSITIONS FOR LABOR UNIONS OR EMPLOYER ASSOCIATIONS.  73 STAT.
536-537.    FOR A DISCUSSION OF THE "STATUS DEGRADATION CEREMONY"
REPRESENTED BY CRIMINAL CONVICTION, SEE GOLDSTEIN, POLICE DISCRETION
NOT TO INVOKE THE CRIMINAL PROCESS:  LOW-VISIBILITY DECISIONS IN THE
ADMINISTRATION OF JUSTICE, 69 YALE L.J. 543, 590-592.  SEE ALSO WAITE,
THE PREVENTION OF REPEATED CRIME, 30-31; FRYM, THE TREATMENT OF
RECIDIVISTS, 47 J. CRIM. L., CRIMINOLOGY & POLICE SCIENCE 1; UNITED
STATES V. HINES, 256 F.2D 561, 563. 

FN31  SEE WALLING V. REUTER CO., 321 U.S. 671, 674-675; SOUTHERN
PACIFIC TERMINAL CO. V. INTERSTATE COMMERCE COMM'N, 219 U.S. 498, 516;
UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290, 309. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

I DO NOT TAKE THE DIM VIEW OF FICTIONS THAT THE OPINION OF THE COURT
REFLECTS.  FICTIONS ARE COMMONPLACE TO LAWYERS.  IN DELAWARE, PRIOR TO
ITS ADOPTION OF A MODERN CODE OF CIVIL PROCEDURE, THE ACTION OF
EJECTMENT WAS BASED ON A SERIES OF FICTIONS.  THE DECLARATION AVERRED A
LEASE TO A FICTITIOUS LESSEE, THE ENTRY BY A FICTITIOUS LESSEE, AND THE
OUSTER BY A FICTITIOUS EJECTOR "WHICH WHEN PROVEN OR ADMITTED BY THE
CONSENT RULE" LEFT "THE QUESTION OF TITLE AS THE ONLY MATTER TO BE
DETERMINED IN THE CASE."  2 WOOLLEY, PRACTICE IN CIVIL ACTIONS (1906),
SEC. 1591. 

WE KNOW FROM ENGLISH HISTORY HOW THE KING'S BENCH AND EXCHEQUER
CONTRIVED TO USURP THE COURT OF COMMON PLEAS - BY ALLEGING THAT THE
DEFENDANT WAS IN CUSTODY OF THE KING'S MARSHAL OR THAT THE PLAINTIFF
WAS THE KING'S DEBTOR AND COULD NOT PAY HIS DEBT BY REASON OF THE
DEFENDANT'S DEFAULT.  SEE 3 REEVES' HISTORY OF THE ENGLISH LAW
(FINLASON ED. 1869), 753. 

WE ARE TOLD BY MAINE, ANCIENT LAW (NEW ED. 1930), 32, THAT IN OLD
ROMAN LAW "FICTIO" WAS A TERM OF PLEADING AND SIGNIFIED A FALSE
AVERMENT WHICH COULD NOT BE TRAVERSED, "SUCH, FOR EXAMPLE, AS AN
AVERMENT THAT THE PLAINTIFF WAS A ROMAN CITIZEN, WHEN IN TRUTH HE WAS A
FOREIGNER." 

THE LIST IS LONG, AND THE CASE FOR OR AGAINST A PARTICULAR FICTION IS
OFTEN HOTLY CONTESTED.  SEE FULLER, LEGAL FICTIONS, 25 ILL. L. REV.
363, 513, 877. 

SOME FICTIONS WORKED GRIEVOUS INJUSTICES SUCH AS THE PRESUPPOSITION
THAT A DEFENDANT, THOUGH FAR AWAY, WAS WITHIN THE JURISDICTION AND
SHOULD BE PROCEEDED AGAINST BY OUTLAWRY.  (FN1)  BENTHAM INVEIGHED
AGAINST "THE PESTILENTIAL BREATH OF FICTION."  (FN2)  YET FICTIONS WERE
OFTEN EXPEDIENTS TO FURTHER THE END OF JUSTICE.  (FN3)  "THE PURPOSE OF
ANY FICTION IS TO RECONCILE A SPECIFIC LEGAL RESULT WITH SOME
PREMISE."  FULLER, OP. CIT., SUPRA, AT 514.  AS JUSTICE HOLMES ONCE
SAID, "TO SAY THAT A SHIP HAS COMMITTED A TORT IS MERELY A SHORTHAND
WAY OF SAYING THAT YOU HAVE DECIDED TO DEAL WITH IT AS IF IT HAD
COMMITTED ONE, BECAUSE SOME MAN HAS COMMITTED ONE IN FACT."  TYLER V.
COURT OF REGISTRATION, 175 MASS. 71, 77, 55 N.E. 812, 814. 

WE HAVE HERE AN INJUSTICE TO UNDO.  PARKER WAS CONVICTED IN A TEXAS
COURT OF A CRIME WITHOUT BENEFIT OF COUNSEL; AND THE NATURE OF THE
CHARGE, THE KIND OF DEFENSE AVAILABLE, AND THE CAPABILITIES OF PARKER
TO DEFEND HIMSELF, MAKE IT PLAIN TO ALL OF US, I ASSUME, THAT DUE
PROCESS OF LAW WAS DENIED HIM UNDER THE STANDARDS LAID DOWN IN OUR
CASES, (FN4) THE MOST RECENT ONE BEING CASH V. CULVER, 358 U.S. 633. 
NO REMEDY AGAINST THIS INVASION OF HIS CONSTITUTIONAL RIGHTS WAS
AVAILABLE TO HIM EXCEPT BY HABEAS CORPUS.  WHILE IN PRISON, HE FOLLOWED
THE FEDERAL ROUTE.  THE WRIT WAS APPLIED FOR, THE DISTRICT COURT
ORDERED RESPONDENT TO ANSWER, SEE WALKER V. JOHNSTON, 312 U.S. 275,
284, AND A HEARING ON AFFIDAVITS, OTHER DOCUMENTS, AND THE TRIAL RECORD
WAS HELD.  THE PETITION WAS DISMISSED AND THE COURT OF APPEALS
AFFIRMED.  258 F.2D 937.  THEN A PETITION FOR A WRIT OF CERTIORARI WAS
FILED HERE.  MORE THAN SEVEN MONTHS AFTER HIS PETITION FOR CERTIORARI
WAS FILED WITH US AND OVER THREE MONTHS AFTER WE GRANTED CERTIORARI HE
WAS RELEASED FROM PRISON.  THAT WAS JUNE 6, 1959.  SO THE COURT NOW
RULES THAT HE HAS NO RELIEF BY WAY OF HABEAS CORPUS BECAUSE THE ILLEGAL
DETENTION HE CHALLENGED HAS BEEN TERMINATED.  AND SO IT HAS.  BUT HIS
CONTROVERSY WITH THE STATE OF TEXAS HAS NOT ENDED.  THE
UNCONSTITUTIONAL JUDGMENT RENDERED AGAINST HIM HAS A CONTINUING EFFECT
BECAUSE UNDER TEXAS LAW "ALL PERSONS CONVICTED OF ANY FELONY EXCEPT
THOSE RESTORED TO FULL CITIZENSHIP AND RIGHT OF SUFFRAGE OR PARDONED"
ARE DISQUALIFIED FROM VOTING.  TEXAS ELECTION CODE, ART. 5.01.  THE
LOSS OF THESE CIVIL RIGHTS PREVENTS A CASE FROM BECOMING MOOT, EVEN
THOUGH THE SENTENCE HAS BEEN SATISFIED.  (FN5)  FISWICK V. UNITED
STATES, 329 U.S. 211, 222; POLLARD V. UNITED STATES, 352 U.S. 354,
358.  THE CONTROVERSY THAT PARKER HAS WITH TEXAS IS A CONTINUING ONE. 

IF THIS WERE A FEDERAL CONVICTION, PARKER WOULD HAVE A REMEDY UNDER
28 U.S.C. SEC. 2255.  SEE POLLARD V. UNITED STATES, SUPRA.  BUT WE WERE
ADVISED ON ORAL ARGUMENT THAT TEXAS PROVIDES NO SUCH REMEDY AND THAT
PARKER HAS NO KNOWN METHOD OF REMOVING THE CIVIL DISABILITIES THAT
FOLLOW FROM THE UNCONSTITUTIONAL JUDGMENT OF CONVICTION.  HE MAY BE
PARDONED.  BUT PARDONS ARE MATTERS OF GRACE.  THERE IS NO REMEDY WHICH
HE CAN CLAIM AS A MATTER OF RIGHT, UNLESS IT IS THIS ONE.  I CANNOT
THEREFORE BE PARTY TO TURNING HIM FROM THIS COURT EMPTY-HANDED. 

ANY JUDGMENT NUNC PRO TUNC INDULGES IN A FICTION.  BUT IT IS A USEFUL
ONE, ADVANCING THE ENDS OF JUSTICE.  A MAN WHO CLAIMS TO BE UNLAWFULLY
IN THE CUSTODY OF X IS NOT REQUIRED TO START ALL OVER AGAIN IF X HAS
DIED AND Y HAS BEEN SUBSTITUTED IN X'S PLACE.  WE TREAT THE HABEAS
CORPUS PETITION AS THE FACTS WERE WHEN THE ISSUE WAS DRAWN AND ENTER
JUDGMENT NUNC PRO TUNC "AS OF THAT DAY."  QUON QUON POY V. JOHNSON, 273
U.S. 352, 359.  THE SAME IS DONE WHEN OTHER PARTIES DIE BEFORE FINAL
DECISION.  SEE MITCHELL V. OVERMAN, 103 U.S. 62; HARRIS V.
COMMISSIONER, 340 U.S. 106, 112-113.  THESE CASES CAN ALL BE
DISTINGUISHED FROM THE PRESENT ONE.  BUT THE PRINCIPLE IS DEEP IN OUR
JURISPRUDENCE AND WAS STATED LONG AGO IN MITCHELL V. OVERMAN, SUPRA,
PP. 64-65, AS FOLLOWS: 

"THE RULE ESTABLISHED BY THE GENERAL CONCURRENCE OF THE AMERICAN AND
ENGLISH COURTS IS, THAT WHERE THE DELAY IN RENDERING A JUDGMENT OR A
DECREE ARISES FROM THE ACT OF THE COURT, THAT IS, WHERE THE DELAY HAS
BEEN CAUSED EITHER FOR ITS CONVENIENCE, OR BY THE MULTIPLICITY OR PRESS
OF BUSINESS, EITHER THE INTRICACY OF THE QUESTIONS INVOLVED, OR OF ANY
OTHER CAUSE NOT ATTRIBUTABLE TO THE LACHES OF THE PARTIES, THE JUDGMENT
OR THE DECREE MAY BE ENTERED RETROSPECTIVELY, AS OF A TIME WHEN IT
SHOULD OR MIGHT HAVE BEEN ENTERED UP.  IN SUCH CASES, UPON THE MAXIM
ACTUS CURIAE NEMINEM GRAVABIT, - WHICH HAS BEEN WELL SAID TO BE FOUNDED
IN RIGHT AND GOOD SENSE, AND TO AFFORD A SAFE AND CERTAIN GUIDE FOR THE
ADMINISTRATION OF JUSTICE, - IT IS THE DUTY OF THE COURT TO SEE THAT
THE PARTIES SHALL NOT SUFFER BY THE DELAY.  A NUNC PRO TUNC ORDER
SHOULD BE GRANTED OR REFUSED, AS JUSTICE MAY REQUIRE IN VIEW OF THE
CIRCUMSTANCES OF THE PARTICULAR CASE." 

IT IS THE FAULT OF THE COURTS, NOT PARKER'S FAULT, THAT FINAL
ADJUDICATION IN THIS CASE WAS DELAYED UNTIL AFTER HE HAD SERVED HIS
SENTENCE.  JUSTICE DEMANDS THAT HE BE GIVEN THE RELIEF HE DESERVES. 
SINCE THE CUSTODY REQUIREMENT, IF ANY, WAS SATISFIED WHEN WE TOOK
JURISDICTION OF THE CASE, I WOULD GRANT THE RELIEF AS OF THAT DATE. 

FN1  9 HOLDSWORTH, A HISTORY OF ENGLISH LAW (3D ED. 1944), 254 ET
SEQ. AS TO CORPORATIONS, CHURCHES, AND BOROUGHS SEE 1 POLLOCK AND
MAITLAND, HISTORY OF ENGLISH LAW (2D ED. 1899), 486, 669-670. 

FN2  1 BENTHAM'S WORKS (BOWRING ED. 1843), 235. 

FN3  9 HOLDSWORTH, OP. CIT., SUPRA, NOTE 1, AT 250-251: 

"OF ALL THESE METHODS OF BEGINNING AN ACTION THE MOST COMMON WAS A
CAPIAS AD RESPONDENDUM, I.E. A WRIT DIRECTING THE SHERIFF TO ARREST THE
DEFENDANT.  THIS PROCESS WAS POSSIBLE IN ALL THE MOST USUAL PERSONAL
ACTIONS; AND, WHERE IT WAS POSSIBLE, IT BECAME THE PRACTICE, IN THE
COURSE OF THE EIGHTEENTH CENTURY, TO 'RESORT TO IT IN THE FIRST
INSTANCE, AND TO SUSPEND THE ISSUING OF THE ORIGINAL WRIT, OR EVEN TO
NEGLECT IT ALTOGETHER, UNLESS ITS OMISSION SHOULD AFTERWARDS BE
OBJECTED BY THE DEFENDANT.  THUS THE USUAL PRACTICAL MODE OF COMMENCING
A PERSONAL ACTION BY ORIGINAL WRIT IS TO BEGIN BY ISSUING, NOT AN
ORIGINAL, BUT A CAPIAS.'  AS THE AUTHOR OF THE PLEADER'S GUIDE SAID:

                               'STILL LEST THE SUIT SHOULD BE
DELAYED,

    AND JUSTICE AT HER FOUNTAIN STAYED,

             A CAPIAS IS CONCEIVED AND BORN

                 ERE YET TH' ORIGINAL IS DRAWN,

                     TO JUSTIFY THE COURTS PROCEEDINGS,

                             ITS FORMS, ITS PROCESSES, AND
PLEADINGS,

                               AND THUS BY WAYS AND MEANS UNKNOWN

                               TO ALL BUT HEROES OF THE GOWN,

                               A VICTORY FULL OFT IS WON

                               ERE BATTLE FAIRLY IS BEGUN,

                               'TIS TRUE, THE WISDOM OF OUR LAWS

HAS MADE EFFECT PRECEDE THE CAUSE,

       BUT LET THIS SOLECISM PASS -

         IN FICTIONE AEQUITAS.' 

"BUT THE ORIGINAL WAS ALWAYS SUPPOSED; AND THE DEFENDANT COULD ALWAYS
OBJECT TO ITS ABSENCE, AND COMPEL THE PLAINTIFF TO PROCURE IT FROM THE
OFFICE OF THE CURSITOR.  IT SHOULD BE NOTED ALSO THAT IN THE PROCEDURE
BY BILL AGAINST PERSONS ACTUALLY PRIVILEGED, OR SUPPOSED TO BE
PRIVILEGED, THERE WAS NECESSARILY NO ORIGINAL.  THE BILL TOOK THE PLACE
OF THE ORIGINAL, AND ALSO OPERATED AS THE PLAINTIFF'S DECLARATION." 
AND SEE 2 BOUVIER'S LAW DICTIONARY (8TH ED. 1914), 1213-1214. 

FN4  AND SEE THE DISSENTING OPINION OF JUDGE RIVES BELOW, 258 F.2D
937, 941-944. 

FN5  THE FACT THAT THERE ARE OTHER FELONY CONVICTIONS WHICH WOULD BE
UNAFFECTED BY OUR ACTION SEEMS TO ME TO BE IMMATERIAL.  PETITIONER IS
ENTITLED HERE AND NOW TO START UNTANGLING THE SKEIN.  IF WE GRANT
RELIEF, WE WILL HAVE UNDONE THE WRONG WHICH OUR OWN DELAY MADE
POSSIBLE.  WE HAVE NO WAY OF KNOWING WHAT OTHER MEASURES MAY BE
AVAILABLE TO RELIEVE PETITIONER OF THE STIGMA OF THE OTHER FELONIES. 
ONLY IF WE WERE CERTAIN (AS WE ARE NOT) THAT THERE ARE OR WILL BE NONE
COULD WE FAIL TO GIVE HIM RELIEF AGAINST THE WRONG DONE HERE BY THE
PROCESSES OF THE LAW. 
..END :













NEEDELMAN V. UNITED STATES 362 U.S. 600 


NO. 278.  ARGUED APRIL 25-26, 1960 - DECIDED MAY 16, 1960 - REPORTED
BELOW:  261 F.2D 802. 


SINCE THE RECORD DOES NOT ADEQUATELY PRESENT THE QUESTIONS TENDERED IN
THE PETITION, THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY
GRANTED. 

NEEDLEMAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

AFTER HEARING ORAL ARGUMENT, AND FURTHER STUDY OF THE RECORD, WE
CONCLUDE THAT THE RECORD DOES NOT ADEQUATELY PRESENT THE QUESTIONS
TENDERED IN THE PETITION.  ACCORDINGLY THE WRIT IS DISMISSED AS
IMPROVIDENTLY GRANTED. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK AND MR. JUSTICE
HARLAN JOIN. 

CONSIDERING THE VOLUME OF CASES WHICH INVOKE THE COURT'S
DISCRETIONARY JURISDICTION - AS OF TODAY 1,091 SUCH CASES HAVE BEEN
PASSED ON DURING THIS TERM - IT WOULD BE INDEED SURPRISING IF IN EACH
TERM THERE WERE NOT TWO OR THREE INSTANCES OF PETITIONS WHICH, AFTER
PASSING THROUGH THE PRELIMINARY SIFTING PROCESS, DID NOT SURVIVE THE
SCRUTINY OF ORAL ARGUMENT.  SEE THE CASES COLLECTED IN RICE V. SIOUX
CITY CEMETERY, 349 U.S. 70, 77-78, AND, MORE RECENTLY, TRIPLETT V.
IOWA, 357 U.S. 217, JOSEPH V. INDIANA, 359 U.S. 117, AND PHILLIPS V.
NEW YORK, ANTE, P. 456.  BUT THIS IS NOT ONE OF THEM.  THE SPECIFIC
QUESTIONS WHICH WERE PRESENTED BY THE PETITION FOR CERTIORARI ARE NOT
NOW FOUND TO BE FRIVOLOUS NOR DO THEY RAISE DISPUTED QUESTIONS OF FACT,
NOR DOES THE RECORD OTHERWISE APPROPRIATELY PRECLUDE ANSWERS TO THEM. 
IN MY VIEW THEY CALL FOR ANSWERS AGAINST THE CLAIMS OF THE PETITIONER
AND I WOULD THEREFORE AFFIRM THE JUDGMENT.  IN VIEW OF THE DISPOSITION
OF THE CASE ELABORATION IS NOT CALLED FOR. 
..END :












UNITED STATES V. ALABAMA 362 U.S. 602 


NO. 398.  ARGUED MAY 2, 1960 - DECIDED MAY 16, 1960 - 267 F.2D 808,
JUDGMENTS VACATED AND CASE REMANDED. 


ALLEGING A COURSE OF RACIALLY DISCRIMINATORY PRACTICES CALCULATED TO
DEPRIVE NEGRO CITIZENS OF THEIR VOTING RIGHTS, THE UNITED STATES
BROUGHT AN ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL
RIGHTS ACT OF 1957 AGAINST THE BOARD OF REGISTRARS OF AN ALABAMA
COUNTY, THE INDIVIDUAL MEMBERS THEREOF AND THE STATE OF ALABAMA.  THE
DISTRICT COURT DISMISSED THE COMPLAINT, HOLDING, INTER ALIA, THAT THE
CIVIL RIGHTS ACT OF 1957 DID NOT AUTHORIZE THE ACTION AGAINST THE
STATE.  THE COURT OF APPEALS AFFIRMED, AND THIS COURT GRANTED
CERTIORARI.  BEFORE THE CASE WAS HEARD IN THIS COURT, THE CIVIL RIGHTS
ACT OF 1957 WAS AMENDED SO AS EXPRESSLY TO AUTHORIZE SUCH ACTIONS TO BE
BROUGHT AGAINST A STATE.  HELD:  BY VIRTUE OF THAT AMENDMENT, WHICH IS
TO BE APPLIED TO THIS CASE, THE DISTRICT COURT NOW HAS JURISDICTION TO
ENTERTAIN THIS ACTION AGAINST THE STATE.  ACCORDINGLY, BOTH OF THE
JUDGMENTS BELOW ARE VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT WITH INSTRUCTIONS TO REINSTATE THE ACTION AS TO THE STATE.  PP.
602-604. 

UNITED STATES V. ALABAMA ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

ALLEGING A COURSE OF RACIALLY DISCRIMINATORY PRACTICES CALCULATED TO
DEPRIVE NEGRO CITIZENS OF THEIR VOTING RIGHTS IN VIOLATION OF THE
FIFTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND PART
IV OF THE CIVIL RIGHTS ACT OF 1957, 71 STAT. 637, 42 U.S.C.  SEC.
1971(A), (FN1) THE UNITED STATES, PROCEEDING UNDER 42 U.S.C. SEC.
1971(C), (FN2) BROUGHT THIS ACTION AGAINST THE BOARD OF REGISTRARS OF
MACON COUNTY, ALABAMA, AND THE TWO INDIVIDUAL RESPONDENTS AS MEMBERS
THEREOF, FOR DECLARATORY AND INJUNCTIVE RELIEF.  THEREAFTER THE
GOVERNMENT AMENDED ITS COMPLAINT SO AS TO JOIN THE STATE OF ALABAMA AS
A PARTY DEFENDANT. 

THE DISTRICT COURT DISMISSED THE COMPLAINT AS TO ALL DEFENDANTS.  IT
HELD (1) THAT THE INDIVIDUAL RESPONDENTS HAD BEEN SUED ONLY AS
REGISTRARS, AND THAT HAVING UNDER ALABAMA LAW EFFECTIVELY RESIGNED
THEIR OFFICES THEY WERE NOT SUABLE IN THEIR OFFICIAL CAPACITIES; (2)
THAT THE BOARD OF REGISTRARS WAS NOT A SUABLE LEGAL ENTITY; AND (3)
THAT THE CIVIL RIGHTS ACT OF 1957 DID NOT AUTHORIZE THIS ACTION AGAINST
THE STATE.  171 F. SUPP. 720.  THE COURT OF APPEALS, SUSTAINING EACH OF
THESE HOLDINGS, AFFIRMED.  267 F.2D 808.  BECAUSE OF THE IMPORTANCE OF
THE ISSUES INVOLVED WE BROUGHT THE CASE HERE.  361 U.S. 893. 

SHORTLY BEFORE THE CASE WAS HEARD IN THIS COURT ON MAY 2, 1960,
CONGRESS PASSED THE CIVIL RIGHTS ACT OF 1960.  THE BILL WAS SIGNED BY
THE PRESIDENT ON MAY 6, 1960, AND HAS NOW BECOME LAW.  ACT OF MAY 6,
1960, 74 STAT. 86.  AMONG OTHER THINGS SEC. 601(B) OF THAT ACT AMENDS
42 U.S.C. SEC. 1971(C) BY EXPRESSLY AUTHORIZING ACTIONS SUCH AS THIS TO
BE BROUGHT AGAINST A STATE.  (FN3)  UNDER FAMILIAR PRINCIPLES, THE CASE
MUST BE DECIDED ON THE BASIS OF LAW NOW CONTROLLING, AND THE PROVISIONS
OF SEC. 601(B) ARE APPLICABLE TO THIS LITIGATION.  AMERICAN FOUNDRIES
V. TRI-CITY COUNCIL, 257 U.S. 184, 201; HINES V. DAVIDOWITZ, 312 U.S.
52, 60; SEE ALSO REYNOLDS V. UNITED STATES, 292 U.S. 443, 449. 

WE HOLD THAT BY VIRTUE OF THE PROVISIONS OF THAT SECTION THE DISTRICT
COURT HAS JURISDICTION TO ENTERTAIN THIS ACTION AGAINST THE STATE.  IN
SO HOLDING WE DO NOT REACH, OR INTIMATE ANY VIEW UPON, ANY OF THE
ISSUES DECIDED BELOW, THE MERITS OF THE CONTROVERSY, OR ANY DEFENSES,
CONSTITUTIONAL OR OTHERWISE, THAT MAY BE ASSERTED BY THE STATE. 

ACCORDINGLY, THE JUDGMENTS OF THE COURT OF APPEALS AND THE DISTRICT
COURT WILL BE VACATED, AND THE CASE REMANDED TO THE DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA WITH INSTRUCTIONS TO REINSTATE THE
ACTION AS TO THE STATE OF ALABAMA, AND FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SECTION 1 OF THE FIFTEENTH AMENDMENT PROVIDES:  "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." 

42 U.S.C. SEC. 1971(A) PROVIDES:  "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." 

FN2  42 U.S.C. SEC. 1971(C) PROVIDES:  "WHENEVER ANY PERSON HAS
ENGAGED OR THERE ARE REASONABLE GROUNDS TO BELIEVE THAT ANY PERSON IS
ABOUT TO ENGAGE IN ANY ACT OR PRACTICE WHICH WOULD DEPRIVE ANY OTHER
PERSON OF ANY RIGHT OR PRIVILEGE SECURED BY SUBSECTION (A)  ...  THE
ATTORNEY GENERAL MAY INSTITUTE FOR THE UNITED STATES, OR IN THE NAME OF
THE UNITED STATES, A CIVIL ACTION OR OTHER PROPER PROCEEDING FOR
PREVENTIVE RELIEF, INCLUDING AN APPLICATION FOR A PERMANENT OR
TEMPORARY INJUNCTION, RESTRAINING ORDER, OR OTHER ORDER.  IN ANY
PROCEEDING HEREUNDER THE UNITED STATES SHALL BE LIABLE FOR COSTS THE
SAME AS A PRIVATE PERSON." 

FN3  SECTION 601(B) PROVIDES:  "WHENEVER, IN A PROCEEDING INSTITUTED
UNDER THIS SUBSECTION (42 U.S.C. SEC. 1971(C)) ANY OFFICIAL OF A STATE
OR SUBDIVISION THEREOF IS ALLEGED TO HAVE COMMITTED ANY ACT OR PRACTICE
CONSTITUTING A DEPRIVATION OF ANY RIGHT OR PRIVILEGE SECURED BY
SUBSECTION (A), THE ACT OR PRACTICE SHALL ALSO BE DEEMED THAT OF THE
STATE AND THE STATE MAY BE JOINED AS A PARTY DEFENDANT AND, IF, PRIOR
TO THE INSTITUTION OF SUCH PROCEEDING, SUCH OFFICIAL HAS RESIGNED OR
HAS BEEN RELIEVED OF HIS OFFICE AND NO SUCCESSOR HAS ASSUMED SUCH
OFFICE, THE PROCEEDING MAY BE INSTITUTED AGAINST THE STATE." 
..END :









LOCAL 24, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA, AFL-CIO V. OLIVER 362 U.S. 605 


NO. 813.  DECIDED MAY 16, 1960 - 170 OHIO ST. 207, 163 N.E.2D 383,
REVERSED. 


OHIO'S ANTITRUST LAW MAY NOT BE APPLIED TO PREVENT THE CONTRACTING
PARTIES FROM CARRYING OUT A COLLECTIVE BARGAINING AGREEMENT UPON A
SUBJECT MATTER AS TO WHICH THE NATIONAL LABOR RELATIONS ACT DIRECTS
THEM TO BARGAIN.  TEAMSTERS UNION V. OLIVER, 358 U.S. 283.  THEREFORE,
CERTIORARI IS GRANTED AND THE JUDGMENT BELOW IS REVERSED.  PP. 605
606. 

LOCAL 24, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA, AFL-CIO, ET AL. V. OLIVER ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO USE THE RECORD IN NO. 49, OCTOBER TERM, 1958,
IS GRANTED.  THE PETITION FOR CERTIORARI IS ALSO GRANTED.  AFTER OUR
REMAND TO THE COURT OF APPEALS OF THE STATE OF OHIO, NINTH JUDICIAL
DISTRICT, FOR PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS
COURT, 358 U.S. 283, THE COURT OF APPEALS SET ASIDE ITS PREVIOUS ORDER
"AS IT CONCERNS AND APPLIES TO REVEL OLIVER, APPELLEE, AS A LESSOR
DRIVER" BUT CONTINUED THE ORDER IN FULL FORCE AND EFFECT "AS IT
CONCERNS AND APPLIES TO REVEL OLIVER, APPELLEE, AS A LESSOR-OWNER AND
EMPLOYER OF DRIVERS OF HIS EQUIPMENT."  WE READ THE JUDGMENT OF THE
COURT OF APPEALS AS ENJOINING PETITIONERS AND RESPONDENTS A.C.E.
TRANSPORTATION CO. AND INTERSTATE TRUCK SERVICE, INC., FROM ENFORCING
AGAINST RESPONDENT OLIVER THOSE PARTS OF ARTICLE 32 WHICH PROVIDE THAT
HIRED OR LEASED EQUIPMENT, IF NOT OWNER-DRIVEN, SHALL BE OPERATED ONLY
BY EMPLOYEES OF THE CERTIFICATED OR PERMITTED CARRIERS AND REQUIRE
THOSE CARRIERS TO USE THEIR OWN AVAILABLE EQUIPMENT BEFORE HIRING ANY
EXTRA EQUIPMENT.  ART. XXXII, SECS. 4 AND 5, 358 U.S., AT 298-299. 
WHILE WE DO NOT THINK THE ISSUE WAS TENDERED TO US WHEN THE CASE WAS
LAST HERE, WE ARE OF OPINION THAT THESE PROVISIONS ARE AT LEAST AS
INTIMATELY BOUND UP WITH THE SUBJECT OF WAGES AS THE MINIMUM RENTAL
PROVISIONS WE PASSED ON THEN.  ACCORDINGLY, AS IN THE PREVIOUS CASE, WE
HOLD THAT OHIO'S ANTITRUST LAW HERE MAY NOT "BE APPLIED TO PREVENT THE
CONTRACTING PARTIES FROM CARRYING OUT THEIR AGREEMENT UPON A SUBJECT
MATTER AS TO WHICH FEDERAL LAW DIRECTS THEM TO BARGAIN."   358 U.S., AT
295. 

THE JUDGMENT ACCORDINGLY IS REVERSED. 

MR. JUSTICE WHITTAKER DISSENTS. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE STEWART TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






















WILDE V. WYOMING 362 U.S. 607 


NO. 645, MISC.  DECIDED MAY 16, 1960. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED FOR HEARING ON
PETITIONER'S ALLEGATIONS IN HIS PETITION FOR WRIT OF HABEAS CORPUS THAT
HE "HAD NO COUNSEL PRESENT" WHEN HE PLEADED GUILTY TO SECOND-DEGREE
MURDER AND THAT THE PROSECUTOR SUPPRESSED TESTIMONY FAVORABLE TO
PETITIONER. 

WILDE V. WYOMING ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF WYOMING. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  IN PETITIONS FOR WRITS OF HABEAS
CORPUS, FILED WITH THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF
WYOMING AND WITH THE WYOMING SUPREME COURT, THE PETITIONER ALLEGED,
AMONG OTHER GROUNDS FOR RELIEF, THAT HIS PLEA OF GUILTY TO SECOND
DEGREE MURDER IN DECEMBER 1945, UPON WHICH HE RECEIVED A LIFE SENTENCE,
WAS INDUCED WHEN HE "HAD NO COUNSEL PRESENT" AND THAT THE PROSECUTOR
WILFULLY SUPPRESSED THE TESTIMONY OF TWO EYEWITNESSES TO THE ALLEGED
CRIME WHICH WOULD HAVE EXONERATED THE PETITIONER.  IT DOES NOT APPEAR
FROM THE RECORD THAT AN ADEQUATE HEARING ON THESE ALLEGATIONS WAS HELD
IN THE DISTRICT COURT, OR ANY HEARING OF ANY NATURE IN, OR BY DIRECTION
OF, THE SUPREME COURT.  WE FIND NOTHING IN OUR EXAMINATION OF THE
RECORD TO JUSTIFY THE DENIAL OF HEARING ON THESE ALLEGATIONS.  THE
JUDGMENT IS THEREFORE VACATED AND THE CASE IS REMANDED FOR A HEARING
THEREON.  PENNSYLVANIA EX REL. HERMAN V. CLAUDY, 350 U.S. 116; SUBLETT
V. ADAMS, 362 U.S. 143. 
..END :



















MCMORRAN V. TUSCARORA NATION OF INDIANS, ALSO KNOWN AS TUSCARORA INDIAN
NATION 362 U.S. 608 


NO. 4.  DECIDED MAY 16, 1960 - REPORTED BELOW:  257 F.2D 885. 


JUDGMENT VACATED AND CASE REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS THE COMPLAINT AS MOOT. 

MCMORRAN, SUPERINTENDENT OF PUBLIC WORKS OF NEW YORK, V. TUSCARORA
NATION OF INDIANS, ALSO KNOWN AS TUSCARORA INDIAN NATION. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

UPON THE SUGGESTION OF MOOTNESS, THE JUDGMENT OF THE COURT OF APPEALS
IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS THE COMPLAINT AS MOOT. 
..END :










HELM V. ARIZONA 362 U.S. 609 


NO. 768.  DECIDED MAY 16, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  86 ARIZ. 275, 345 P.2D
202. 


HELM ET AL. V. ARIZONA 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















MARYLAND AND VIRGINIA MILK PRODUCERS ASSOCIATION, INC. V. UNITED STATES
362 U.S. 458 


NO.  62.  ARGUED JANUARY 19-20, 1960 - DECIDED MAY 2, 1960* - 167 F.
SUPP. 45, REVERSED - 167 F. SUPP. 799, 168 F. SUPP. 880, AFFIRMED. 

*TOGETHER WITH NO. 73, UNITED STATES V. MARYLAND AND VIRGINIA MILK
PRODUCERS ASSOCIATION, INC., ALSO ON APPEAL FROM THE SAME COURT. 


THE UNITED STATES BROUGHT A CIVIL ANTITRUST ACTION AGAINST AN
AGRICULTURAL COOPERATIVE MARKETING ASSOCIATION COMPOSED OF ABOUT 2,000
MARYLAND AND VIRGINIA DAIRY FARMERS SUPPLYING ABOUT 86% OF THE MILK
PURCHASED BY ALL MILK DEALERS IN THE WASHINGTON, D.C., METROPOLITAN
AREA.  THE COMPLAINT CHARGED THAT THE ASSOCIATION HAD (1) MONOPOLIZED
AND ATTEMPTED TO MONOPOLIZE INTERSTATE TRADE AND COMMERCE IN FLUID MILK
IN MARYLAND, VIRGINIA AND THE DISTRICT OF COLUMBIA, IN VIOLATION OF
SEC. 2 OF THE SHERMAN ACT; (2) THROUGH CONTRACTS AND AGREEMENTS
COMBINED AND CONSPIRED WITH EMBASSY DAIRY AND OTHERS TO ELIMINATE AND
FORECLOSE COMPETITION IN THE SAME MILK MARKET AREA, IN VIOLATION OF
SEC. 3 OF THE SHERMAN ACT; AND (3) BOUGHT ALL ASSETS OF EMBASSY DAIRY
(THE LARGEST MILK DEALER IN THE AREA WHICH COMPETED WITH THE
ASSOCIATION'S DEALERS), THE EFFECT OF WHICH MIGHT BE TO SUBSTANTIALLY
LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY IN VIOLATION OF SEC. 7
OF THE CLAYTON ACT.  THE DISTRICT COURT DISMISSED THE CHARGE UNDER SEC.
2 OF THE SHERMAN ACT; BUT IT FOUND FOR THE GOVERNMENT ON THE CHARGES
UNDER SEC. 3 OF THE SHERMAN ACT AND SEC. 7 OF THE CLAYTON ACT AND
GRANTED PART, BUT NOT ALL, OF THE RELIEF SOUGHT BY THE GOVERNMENT WITH
RESPECT TO THOSE CHARGES.  HELD: 

1.  SECTION 2 OF THE CAPPER-VOLSTEAD ACT, WHICH AUTHORIZES THE
SECRETARY OF AGRICULTURE TO ISSUE A CEASE-AND-DESIST ORDER UPON FINDING
THAT A COOPERATIVE HAS MONOPOLIZED OR RESTRAINED TRADE TO SUCH AN
EXTENT THAT THE PRICE OF AN AGRICULTURAL COMMODITY HAS BEEN "UNDULY
ENHANCED," DOES NOT EXCLUDE ALL PROSECUTIONS UNDER THE SHERMAN ACT. 
UNITED STATES V. BORDEN CO., 308 U.S. 188.  PP. 462-463. 

2.  NEITHER SEC. 6 OF THE CLAYTON ACT NOR SEC. 1 OF THE CAPTER
VOLSTEAD ACT LEAVES AGRICULTURAL COOPERATIVES FREE TO ENGAGE IN
PRACTICES AGAINST OTHERS WHICH ARE DESIGNED TO MONOPOLIZE TRADE OR TO
RESTRAIN AND SUPPRESS COMPETITION.  PP. 463-468. 

3.  THE ALLEGATIONS OF THE COMPLAINT AND THE STATEMENT OF PARTICULARS
IN THIS CASE CHARGE ANTICOMPETITIVE ACTIVITIES WHICH ARE SO FAR OUTSIDE
THE LEGITIMATE OBJECTS OF A COOPERATIVE THAT, IF PROVED, THEY WOULD
CONSTITUTE CLEAR VIOLATIONS OF SEC. 2 OF THE SHERMAN ACT; AND THE
DISTRICT COURT ERRED IN DISMISSING THE CHARGE OF VIOLATING SEC. 2.  P.
468. 

4.  ON THE RECORD IN THIS CASE, THE DISTRICT COURT PROPERLY FOUND
THAT THE ACQUISITION OF EMBASSY DAIRY BY THE ASSOCIATION TENDED TO
CREATE A MONOPOLY OR TO SUBSTANTIALLY LESSEN COMPETITION, IN VIOLATION
OF SEC. 7 OF THE CLAYTON ACT.  PP. 468-469. 

5.  THE ACQUISITION OF EMBASSY DAIRY BY THE ASSOCIATION WAS NOT
EXEMPTED FROM THE PROVISIONS OF SEC. 7 OF THE CLAYTON ACT BY THE LAST
PARAGRAPH OF THAT SECTION, SINCE THERE IS NO "STATUTORY PROVISION" THAT
VESTS POWER IN THE SECRETARY OF AGRICULTURE TO APPROVE A TRANSACTION
AND THEREBY EXEMPT A COOPERATIVE FROM THE ANTITRUST LAWS UNDER THE
CIRCUMSTANCES OF THIS CASE, WHICH INVOLVES NO AGRICULTURAL MARKETING
AGREEMENT WITH THE SECRETARY.  PP.  469-470. 

6.  THE PRIVILEGE THE CAPPER-VOLSTEAD ACT GRANTS PRODUCERS TO CONDUCT
THEIR AFFAIRS COLLECTIVELY DOES NOT INCLUDE A PRIVILEGE TO COMBINE WITH
COMPETITORS SO AS TO USE A MONOPOLY POSITION AS A LEVER FURTHER TO
SUPPRESS COMPETITION BY AND AMONG INDEPENDENT PRODUCERS AND PROCESSORS;
AND THE RECORD SUSTAINS THE DISTRICT COURT'S FINDING THAT THE
ASSOCAITION HAD VIOLATED SEC. 3 OF THE SHERMAN ACT.  PP. 470-472. 

7.  HAVING ENTERED A DECREE ORDERING THE ASSOCIATION TO DIVEST ITSELF
OF ALL ASSETS ACQUIRED FROM EMBASSY DAIRY AND TO CANCEL ALL CONTRACTS
ANCILLARY TO THEIR ACQUISITION, AND HAVING RETAINED JURISDICTION TO
GRANT SUCH FURTHER RELIEF AS MIGHT BE APPROPRIATE, THE DISTRICT COURT
DID NOT ERR IN DENYING PART OF THE RELIEF SOUGHT BY THE GOVERNMENT. 
PP. 472-473. 

MARYLAND AND VIRGINIA MILK PRODUCERS ASSOCIATION, INC., V. UNITED
STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL ANTITRUST ACTION BROUGHT BY THE UNITED STATES IN A
FEDERAL DISTRICT COURT AGAINST AN AGRICULTURAL COOPERATIVE, THE
MARYLAND AND VIRGINIA MILK PRODUCERS ASSOCIATION, INC. THE ASSOCIATION
SUPPLIES ABOUT 86% OF THE MILK PURCHASED BY ALL MILK DEALERS IN THE
WASHINGTON, D.C., METROPOLITAN AREA, AND HAS AS MEMBERS ABOUT 2,000
MARYLAND AND VIRGINIA DAIRY FARMERS.  THE COMPLAINT CHARGED THAT THE
ASSOCIATION HAD:  (1) ATTEMPTED TO MONOPOLIZE AND HAD MONOPOLIZED
INTERSTATE TRADE AND COMMERCE IN FLUID MILK IN MARYLAND, VIRGINIA AND
THE DISTRICT OF COLUMBIA IN VIOLATION OF SEC. 2 OF THE SHERMAN ACT;
(FN1) (2) THROUGH CONTRACTS AND AGREEMENTS COMBINED AND CONSPIRED WITH
EMBASSY DAIRY AND OTHERS TO ELIMINATE AND FORECLOSE COMPETITION IN THE
SAME MILK MARKET AREA IN VIOLATION OF SEC. 3 OF THAT ACT; (FN2) AND (3)
BOUGHT ALL THE ASSETS OF EMBASSY DAIRY, THE LARGEST MILK DEALER IN THE
AREA WHICH COMPETED WITH THE ASSOCIATION'S DEALERS, THE EFFECT OF WHICH
ACQUISITION MIGHT BE SUBSTANTIALLY TO LESSEN COMPETITION OR TO TEND TO
CREATE A MONOPOLY IN VIOLATION OF SEC. 7 OF THE CLAYTON ACT.  (FN3) THE
CHIEF DEFENSE SET UP BY THE ASSOCIATION WAS THAT, BECAUSE OF ITS BEING
A COOPERATIVE COMPOSED EXCLUSIVELY OF DAIRY FARMERS, SEC. 6 OF THE
CLAYTON ACT (FN4) AND SECS. 1 AND 2 OF THE CAPPER-VOLSTEAD ACT (FN5)
COMPLETELY EXEMPTED AND IMMUNIZED IT FROM THE ANTITRUST LAWS WITH
RESPECT TO THE CHARGES MADE IN THE GOVERNMENT'S COMPLAINT.   THE
DISTRICT COURT CONCLUDED AFTER ARGUMENTS THAT: 

"AN AGRICULTURAL COOPERATIVE IS ENTIRELY EXEMPT FROM THE PROVISIONS
OF THE ANTITRUST LAWS, BOTH AS TO ITS VERY EXISTENCE AS WELL AS TO ALL
OF ITS ACTIVITIES, PROVIDED IT DOES NOT ENTER INTO CONSPIRACIES OR
COMBINATIONS WITH PERSONS WHO ARE NOT PRODUCERS OF AGRICULTURAL
COMMODITIES."  167 F. SUPP. 45, 52. 

ACCORDINGLY THE COURT DISMISSED THE SHERMAN ACT SEC. 2 MONOPOLIZATION
CHARGE, WHERE THE ASSOCIATION WAS NOT ALLEGED TO HAVE ACTED IN
COMBINATION WITH OTHERS, BUT UPHELD THE RIGHT OF THE GOVERNMENT TO GO
TO TRIAL ON THE SHERMAN ACT SEC. 3 AND CLAYTON ACT SEC. 7 CHARGES
BECAUSE THEY INVOLVED ALLEGED ACTIVITIES WITH THE OWNERS OF EMBASSY AND
OTHER PERSONS WHO WERE NOT AGRICULTURAL PRODUCERS.  AFTER TRAIL THE
COURT FOUND FOR THE UNITED STATES ON THE LATTER TWO CHARGES AND ENTERED
A DECREE ORDERING THE ASSOCIATION TO DIVEST ITSELF WITHIN A REASONABLE
TIME OF ALL ASSETS ACQUIRED FROM EMBASSY AND TO CANCEL ALL CONTRACTS
ANCILLARY TO THE ACQUISITION.  167 F. SUPP. 799, 168 F. SUPP. 880.  THE
COURT REFUSED TO GRANT ADDITIONAL RELIEF THE UNITED STATES ASKED FOR. 
IT IS FROM THIS REFUSAL AND THE DISMISSAL OF ITS SHERMAN ACT SEC. 2
MONOPOLIZATION CHARGE THAT THE GOVERNMENT APPEALED DIRECTLY TO THIS
COURT UNDER THE EXPEDITING ACT.  (FN6)  THE ASSOCIATION SIMILARLY
APPEALED TO REVIEW THE JUDGMENTS AGAINST IT ON THE SHERMAN ACT SEC. 3
CHARGE AND THE CLAYTON ACT SEC. 7 CHARGE.  WE NOTED PROBABLE
JURISDICTION, 360 U.S. 927, AND TREAT BOTH APPEALS IN THIS OPINION. 

THE ASSOCIATION'S CHIEF ARGUMENT FOR ANTITRUST EXEMPTION IS BASED ON
SEC. 2 OF THE CAPPER-VOLSTEAD ACT, WHICH AUTHORIZES THE SECRETARY OF
AGRICULTURE TO ISSUE A CEASE-AND-DESIST ORDER UPON A FINDING THAT A
COOPERATIVE HAS MONOPOLIZED OR RESTRAINED TRADE TO SUCH AN EXTENT THAT
THE PRICE OF AN AGRICULTURAL COMMODITY HAS BEEN "UNDULY ENHANCED." 
(FN7)  THE CONTENTION IS THAT THIS PROVISION WAS INTENDED TO GIVE THE
SECRETARY OF AGRICULTURE PRIMARY JURISDICTION, AND THEREBY EXCLUDE ANY
PROSECUTIONS AT ALL UNDER THE SHERMAN ACT.  THIS COURT UNEQUIVOCALLY
REJECTED THE SAME CONTENTION IN UNITED STATES V. BORDEN CO., 308 U.S.
188, 206 AFTER FULL CONSIDERATION OF THE SAME LEGISLATIVE HISTORY THAT
WE ARE NOW ASKED TO REVIEW AGAIN.  WE ADHERE TO THE REASONING AND
HOLDING OF THE BORDEN OPINION ON THIS POINT. 

THE ASSOCIATION ALSO ARGUES THAT WITHOUT REGARD TO SEC. 2 OF THE
CAPPER-VOLSTEAD ACT, SEC. 1 OF THAT ACT AND SEC. 6 OF THE CLAYTON ACT
DEMONSTRATE A PURPOSE WHOLLY TO EXEMPT AGRICULTURAL ASSOCIATIONS FROM
THE ANTITRUST LAWS.  IN THE BORDEN CASE THIS COURT HELD THAT NEITHER
SEC. 6 OF THE CLAYTON ACT NOR THE CAPPER-VOLSTEAD ACT GRANTED IMMUNITY
FROM PROSECUTION FOR THE COMBINATION OF A COOPERATIVE AND OTHERS TO
RESTRAIN TRADE THERE CHARGED AS A VIOLATION OF SEC. 1 OF THE SHERMAN
ACT.  ALTHOUGH THE COURT WAS NOT CONFRONTED WITH CHARGES UNDER SEC. 2
OF THE SHERMAN ACT IN THAT CASE WE DO NOT BELIEVE THAT CONGRESS
INTENDED TO IMMUNIZE COOPERATIVES ENGAGED IN COMPETITION-STIFLING
PRACTICES FROM PROSECUTION UNDER THE ANTIMONOPOLIZATION PROVISIONS OF
SEC. 2 OF THE SHERMAN ACT, WHILE MAKING THEM RESPONSIBLE FOR SUCH
PRACTICES AS VIOLATIONS OF THE ANTI-TRADE-RESTRAINT PROVISIONS OF SECS.
1 AND 3 OF THAT ACT.  THESE SECTIONS CLOSELY OVERLAP, AND THE SAME KIND
OF PREDATORY PRACTICES MAY SHOW VIOLATIONS OF ALL.  (FN8)  THE REASONS
UNDERLYING THE COURT'S HOLDING IN THE BORDEN CASE THAT THE COOPERATIVE
THERE WAS NOT COMPLETELY EXEMPT UNDER SEC. 1 APPLY EQUALLY WELL TO
SECS. 2 AND 3.  THE CLAYTON AND CAPPER-VOLSTEAD ACTS, CONSTRUED IN THE
LIGHT OF THEIR BACKGROUND, DO NOT LEND THEMSELVES TO SUCH AN
INCONGRUOUS IMMUNITY-DISTINCTION BETWEEN THE SECTIONS AS THAT URGED
HERE. 

IN THE EARLY 1900'S, WHEN AGRICULTURAL COOPERATIVES WERE GROWING IN
EFFECTIVENESS, THERE WAS WIDESPREAD CONCERN BECAUSE THE MERE
ORGANIZATION OF FARMERS FOR MUTUAL HELP WAS OFTEN CONSIDERED TO BE A
VIOLATION OF THE ANTITRUST LAWS.  SOME STATE COURTS HAD SUSTAINED
ANTITRUST CHARGES AGAINST AGRICULTURAL COOPERATIVES, (FN9) AND AS A
RESULT EVENTUALLY ALL THE STATES PASSED ACTS AUTHORIZING THEIR
EXISTENCE.  (FN10)  IT WAS TO BAR SUCH PROSECUTIONS BY THE FEDERAL
GOVERNMENT AS TO INTERSTATE TRANSACTIONS THAT CONGRESS IN 1914 INSERTED
SEC. 6 IN THE CLAYTON ACT EXEMPTING AGRICULTURAL ORGANIZATIONS, ALONG
WITH LABOR UNIONS, FROM THE ANTITRUST LAWS.  THIS COURT HAS HELD THAT
THE PROVISIONS OF THAT SECTION, SET OUT BELOW, (FN11) RELATING TO LABOR
UNIONS DO NOT MANIFEST "A CONGRESSIONAL PURPOSE WHOLLY TO EXEMPT" THEM
FROM THE ANTITRUST LAWS, (FN12) AND NEITHER THE LANGUAGE NOR THE
LEGISLATIVE HISTORY OF THE SECTION INDICATES A CONGRESSIONAL PURPOSE TO
GRANT ANY BROADER IMMUNITY TO AGRICULTURAL COOPERATIVES.  THE LANGUAGE
SHOWS NO MORE THAN A PURPOSE TO ALLOW FARMERS TO ACT TOGETHER IN
COOPERATIVE ASSOCIATIONS WITHOUT THE ASSOCIATIONS AS SUCH BEING "HELD
OR CONSTRUED TO BE ILLEGAL COMBINATIONS OR CONSPIRACIES IN RESTRAINT OF
TRADE, UNDER THE ANTITRUST LAWS," AS THEY OTHERWISE MIGHT HAVE BEEN. 
THIS INTERPRETATION IS SUPPORTED BY THE HOUSE AND SENATE COMMITTEE
REPORTS ON THE BILL.  (FN13)  THUS, THE FULL EFFECT OF SEC. 6 IS THAT A
GROUP OF FARMERS ACTING TOGETHER AS A SINGLE ENTITY IN AN ASSOCIATION
CANNOT BE RESTRAINED "FROM LAWFULLY CARRYING OUT THE LEGITIMATE OBJECTS
THEREOF", BUT THE SECTION CANNOT SUPPORT THE CONTENTION THAT IT GIVES
SUCH AN ENTITY FULL FREEDOM TO ENGAGE IN PREDATORY TRADE PRACTICES AT
WILL.  SEE UNITED STATES V. KING, 229 F. 275, 250 F. 908, 910.  CF.
UNITED STATES V. BORDEN CO., 308 U.S. 188, 203-205. 

THE CAPPER-VOLSTEAD ACT OF 1922 EXTENDED SEC. 6 OF THE CLAYTON ACT
EXEMPTION TO CAPITAL STOCK AGRICULTURAL COOPERATIVES WHICH HAD NOT
PREVIOUSLY BEEN COVERED BY THAT SECTION.  (FN14)  SECTION 1 OF THE
CAPPER-VOLSTEAD ACT ALSO PROVIDED THAT AMONG "THE LEGITIMATE OBJECTS"
OF FARMER ORGANIZATIONS WERE "COLLECTIVELY PROCESSING, PREPARING FOR
MARKET, HANDLING, AND MARKETING" PRODUCTS THROUGH COMMON MARKETING
AGENCIES AND THE MAKING OF "NECESSARY CONTRACTS AND AGREEMENTS TO
EFFECT SUCH PURPOSES."  WE BELIEVE IT IS REASONABLY CLEAR FROM THE VERY
LANGUAGE OF THE CAPPER-VOLSTEAD ACT, AS IT WAS IN SEC. 6 OF THE CLAYTON
ACT, THAT THE GENERAL PHILOSOPHY OF BOTH WAS SIMPLY THAT INDIVIDUAL
FARMERS SHOULD BE GIVEN, THROUGH AGRICULTURAL COOPERATIVES ACTING AS
ENTITIES, THE SAME UNIFIED COMPETITIVE ADVANTAGE - AND RESPONSIBILITY -
AVAILABLE TO BUSINESSMEN ACTING THROUGH CORPORATIONS AS ENTITIES.  AS
THE HOUSE REPORT ON THE CAPPER-VOLSTEAD ACT SAID: 

"INSTEAD OF GRANTING A CLASS PRIVILEGE, IT AIMS TO EQUALIZE EXISTING
PRIVILEGES BY CHANGING THE LAW APPLICABLE TO THE ORDINARY BUSINESS
CORPORATIONS SO THE FARMERS CAN TAKE ADVANTAGE OF IT."  (FN15) 

THIS INDICATES A PURPOSE TO MAKE IT POSSIBLE FOR FARMER-PRODUCERS TO
ORGANIZE TOGETHER, SET ASSOCIATION POLICY, FIX PRICES AT WHICH THEIR
COOPERATIVE WILL SELL THEIR PRODUCE, AND OTHERWISE CARRY ON LIKE A
BUSINESS CORPORATION WITHOUT THEREBY VIOLATING THE ANTITRUST LAWS.  IT
DOES NOT SUGGEST A CONGRESSIONAL DESIRE TO VEST COOPERATIVES WITH
UNRESTRICTED POWER TO RESTRAIN TRADE OR TO ACHIEVE MONOPOLY BY PREYING
ON INDEPENDENT PRODUCERS, PROCESSORS OR DEALERS INTENT ON CARRYING ON
THEIR OWN BUSINESSES IN THEIR OWN LEGITIMATE WAY.  IN THE SENATE
HEARINGS ON THE CAPPER-VOLSTEAD ACT THE SECRETARY OF AGRICULTURE, WHO
WAS GIVEN A LARGE MEASURE OF AUTHORITY UNDER THIS ACT, AND THE
SOLICITOR OF HIS DEPARTMENT, TESTIFIED THAT THE ACT WOULD NOT AUTHORIZE
COOPERATIVES TO ENGAGE IN PREDATORY PRACTICES IN VIOLATION OF THE
SHERMAN ACT.  (FN16)  AND THE HOUSE COMMITTEE REPORT ASSURED THE
CONGRESS THAT: 

"IN THE EVENT THAT ASSOCIATIONS AUTHORIZED BY THIS BILL SHALL DO
ANYTHING FORBIDDEN BY THE SHERMAN ANTITRUST ACT, THEY WILL BE SUBJECT
TO THE PENALTIES IMPOSED BY THAT LAW."  (FN17) 

ALTHOUGH CONTRARY INFERENCES COULD BE DRAWN FROM SOME PARTS OF THE
LEGISLATIVE HISTORY, WE ARE SATISFIED THAT THE PART OF THE HOUSE
COMMITTEE REPORT JUST QUOTED CORRECTLY INTERPRETED THE CAPPER-VOLSTEAD
ACT, AND THAT THE ACT DID NOT LEAVE COOPERATIVES FREE TO ENGAGE IN
PRACTICES AGAINST OTHER PERSONS IN ORDER TO MONOPOLIZE TRADE, OR
RESTRAIN AND SUPPRESS COMPETITION WITH THE COOPERATIVE.  THEREFORE, WE
TURN NOW TO A CONSIDERATION OF THE DISTRICT COURT'S JUDGMENTS IN THIS
CASE. 

SHERMAN ACT SEC. 2 DISMISSAL.  - THE COMPLAINT CHARGING
MONOPOLIZATION ALLEGED THAT THE ASSOCIATION HAD "THREATENED AND
UNDERTAKEN DIVERSE ACTIONS TO INDUCE OR COMPEL DEALERS TO PURCHASE MILK
FROM THE DEFENDANT (ASSOCIATION), AND INDUCED AND ASSISTED OTHERS TO
ACQUIRE DEALER OUTLETS" WHICH WERE NOT PURCHASING MILK FROM THE
ASSOCIATION.  IT ALSO ALLEGED THAT THE ASSOCIATION "EXCLUDED,
ELIMINATED, AND ATTEMPTED TO ELIMINATE OTHERS, INCLUDING PRODUCERS AND
PRODUCERS' AGRICULTURAL COOPERATIVE ASSOCIATIONS NOT AFFILIATED WITH
DEFENDANT, FROM SUPPLYING MILK TO DEALERS."  SUPPORTING THIS CHARGE THE
STATEMENT OF PARTICULARS LISTED A NUMBER OF INSTANCES IN WHICH THE
ASSOCIATION ATTEMPTED TO INTERFERE WITH TRUCK SHIPMENTS OF NONMEMBERS'
MILK, AND AN ATTEMPT DURING 1939-1942 TO INDUCE A WASHINGTON DAIRY TO
SWITCH ITS NON-ASSOCIATION PRODUCERS TO THE BALTIMORE MARKET.  THE
STATEMENT OF PARTICULARS ALSO INCLUDED CHARGES THAT THE ASSOCIATION
ENGAGED IN A BOYCOTT OF A FEED AND FARM SUPPLY STORE TO COMPEL ITS
OWNER, WHO ALSO OWNED AN ALEXANDRIA DAIRY, TO PURCHASE MILK FROM THE
ASSOCIATION, AND THAT IT COMPELLED A DAIRY TO BUY ITS MILK BY USING THE
LEVERAGE OF THAT DAIRY'S INDEBTEDNESS TO THE ASSOCIATION.  WE ARE
SATISFIED THAT THE ALLEGATIONS OF THE COMPLAINT AND THE STATEMENT OF
PARTICULARS, ONLY A PART OF WHICH WE HAVE SET OUT, CHARGE
ANTICOMPETITIVE ACTIVITIES WHICH ARE SO FAR OUTSIDE THE "LEGITIMATE
OBJECTS" OF A COOPERATIVE THAT, IF PROVED, THEY WOULD CONSTITUTE CLEAR
VIOLATIONS OF SEC. 2 OF THE SHERMAN ACT BY THIS ASSOCIATION, A FACT,
INDEED, WHICH THE ASSOCIATION DOES NOT REALLY DISPUTE IF IT IS SUBJECT
TO LIABILITY UNDER THIS SECTION.  IT WAS ERROR FOR THE DISTRICT COURT
TO DISMISS THE SEC. 2 CHARGE.  CLAYTON ACT SEC. 7 JUDGMENT.  - IN 1954
THE ASSOCIATION PURCHASED THE ASSETS OF EMBASSY DAIRY IN WASHINGTON. 
THE COMPLAINT CHARGED THAT THIS ACQUISITION CONSTITUTED A VIOLATION OF
SEC. 7 OF THE CLAYTON ACT, WHICH PROHIBITS A CORPORATION ENGAGED IN
COMMERCE FROM ACQUIRING ALL OR ANY PART OF THE ASSETS OF ANOTHER
CORPORATION SO ENGAGED WHERE THE EFFECT MAY BE TO TEND TO CREATE A
MONOPOLY OR SUBSTANTIALLY LESSEN COMPETITION.  A TRIAL WAS HAD BEFORE
THE DISTRICT COURT ON THIS CHARGE AND THE COURT FOUND THAT THE MOTIVE
FOR AND RESULT OF THE EMBASSY ACQUISITION WAS TO:  ELIMINATE THE
LARGEST PURCHASER OF NON-ASSOCIATION MILK IN THE AREA; FORCE FORMER
EMBASSY NON-ASSOCIATION PRODUCERS EITHER TO JOIN THE ASSOCIATION OR TO
SHIP TO BALTIMORE, THUS BOTH BRINGING MORE MILK TO THE ASSOCIATION AND
DIVERTING COMPETING MILK TO ANOTHER MARKET; ELIMINATE THE ASSOCIATION'S
PRIME COMPETITIVE DEALER FROM GOVERNMENT CONTRACT MILK BIDDING; AND
INCREASE THE ASSOCIATION'S CONTROL OF THE WASHINGTON MARKET.  ON THESE
FINDINGS, AMPLY SUPPORTED BY EVIDENCE, THE DISTRICT COURT COULD
PROPERLY CONCLUDE, AS IT DID, THAT THE EMBASSY ACQUISITION TENDED TO
CREATE A MONOPOLY OR SUBSTANTIALLY LESSEN COMPETITION, AND WAS
THEREFORE A VIOLATION OF SEC. 7.  (FN18) 

THIS LEAVES THE CONTENTION THAT THE ACQUISITION OF EMBASSY WAS
PROTECTED BY THE LAST PARAGRAPH OF SEC. 7 OF THE CLAYTON ACT WHICH IN
PERTINENT PART PROVIDES THAT:    "NOTHING CONTAINED IN THIS SECTION
SHALL APPLY TO TRANSACTIONS DULY CONSUMMATED PURSUANT TO AUTHORITY
GIVEN BY  ...  THE SECRETARY OF AGRICULTURE UNDER ANY STATUTORY
PROVISION VESTING SUCH POWER IN SUCH  ...  SECRETARY  ...  ."  (FN19) 

THE ASSOCIATION CONTENDS THAT ITS PURCHASE OF EMBASSY DAIRY WAS
"CONSUMMATED PURSUANT TO AUTHORITY GIVEN BY  ...  THE SECRETARY OF
AGRICULTURE."  THE TROUBLE WITH THIS CONTENTION IS THAT THERE IS NO
"STATUTORY PROVISION" THAT VESTS POWER IN THE SECRETARY OF AGRICULTURE
TO APPROVE A TRANSACTION AND THEREBY EXEMPT A COOPERATIVE FROM THE
ANTITRUST LAWS UNDER THE CIRCUMSTANCES OF THIS CASE.  WHILE THERE IS A
"STATUTORY PROVISION" VESTING POWER IN THE SECRETARY OF AGRICULTURE TO
ENTER INTO AGRICULTURAL MARKETING AGREEMENTS WHICH "SHALL BE DEEMED TO
BE LAWFUL" AND "NOT  ...  BE IN VIOLATION OF ANY OF THE ANTITRUST LAWS
OF THE UNITED STATES," NO SUCH MARKETING AGREEMENT IS INVOLVED HERE. 
(FN20) 

SHERMAN ACT SEC. 3 JUDGMENT.  - THE COMPLAINT CHARGED THAT THE
ASSOCIATION, EMBASSY AND OTHERS HAD VIOLATED SEC. 3 OF THE SHERMAN ACT
BY ENGAGING IN A COMBINATION AND CONSPIRACY TO ELIMINATE AND FORECLOSE
COMPETITION WITH THE ASSOCIATION AND WITH DEALERS PURCHASING MILK FROM
THE ASSOCIATION.  THE DISTRICT COURT, WITH THE CONSENT OF THE PARTIES,
CONSIDERED AND DECIDED THIS SEC. 3 CHARGE ON THE EVIDENCE OFFERED ON
THE SEC. 7 CLAYTON ACT CHARGE.  A CRUCIAL ELEMENT IN THIS CHARGE OF
CONCERTED ACTION WAS THE ASSOCIATION'S PURCHASE OF EMBASSY'S ASSETS
UNDER A CONTRACT CONTAINING AN AGREEMENT BY THE FORMER OWNERS OF
EMBASSY NOT TO COMPETE WITH THE ASSOCIATION IN THE MILK BUSINESS IN THE
WASHINGTON AREA FOR 10 YEARS, AND TO ATTEMPT TO HAVE ALL FORMER EMBASSY
PRODUCERS EITHER JOIN THE ASSOCIATION OR SHIP THEIR MILK TO THE
BALTIMORE MARKET.  ALSO, PARTICULARLY PERTINENT TO THE CHARGE OF A SEC.
3 COMBINATION, WAS EVIDENCE SHOWING A LONG AND SPIRITED BUSINESS
RIVALRY BETWEEN THE ASSOCIATION AND ITS PRODUCERS ON THE ONE HAND AND
EMBASSY AND ITS INDEPENDENT PRODUCERS ON THE OTHER.  THE ASSOCIATION
HAD BEEN "UNHAPPY" ABOUT EMBASSY'S PRICE CUTTING AND ITS GENERALLY
"DISRUPTIVE" COMPETITIVE PRACTICES THAT HAD MADE EMBASSY A "THORN IN
THE SIDE OF THE ASSOCIATION FOR MANY YEARS."  THERE WAS ALSO EVIDENCE
EMPHASIZED BY THE COURT IN ITS CLAYTON ACT SEC. 7 OPINION THAT "THE
PRICE PAID BY THE ASSOCIATION FOR THE TRANSFER WAS FAR IN EXCESS OF THE
ACTUAL AND INTRINSIC VALUE OF THE PROPERTY PURCHASED."  167 F. SUPP.
799, 806.  AFTER READOPTING ITS CLAYTON ACT SEC. 7 FINDINGS REGARDING
THE ANTICOMPETITIVE MOTIVES AND RESULTS OF THE EMBASSY ACQUISITION, SEE
P. 469, SUPRA, THE DISTRICT COURT MADE THE THREE FOLLOWING ADDITIONAL
FINDINGS ON THE SHERMAN ACT SEC. 3 CHARGE:  (1) "THAT THE RESULT OF THE
TRANSACTION COMPLAINED OF WAS A FORECLOSURE OF COMPETITION," (2) "THAT
THE TRANSACTION COMPLAINED OF WAS ENTERED INTO WITH THE INTENT AND
PURPOSE OF RESTRAINING TRADE," (FN21) AND (3) "THAT AN UNREASONABLE
RESTRAINT OF TRADE, VIOLATIVE OF THE SHERMAN ACT, HAS RESULTED FROM THE
ACQUISITION OF EMBASSY DAIRY BY THE DEFENDANT (ASSOCIATION)."  ON THE
BASIS OF ITS FINDINGS AND OPINION THE COURT THEN CONCLUDED THAT "THE
TRANSACTION INVOLVING THE ACQUISITION OF EMBASSY DAIRY BY THE DEFENDANT
CONSTITUTES A VIOLATION OF SECTION 3 OF THE SHERMAN ACT."  168 F. SUPP.
880, 881, 882. 

THE FACTS FOUND BY THE COURT SHOW A CLASSIC COMBINATION OR CONSPIRACY
TO RESTRAIN TRADE, UNLESS, AS THE ASSOCIATION CONTENDS, "THE
TRANSACTION INVOLVING THE ACQUISITION OF EMBASSY" UPON WHICH THE
JUDGMENT AGAINST IT WAS BASED IS PROTECTED AGAINST SHERMAN ACT
PROSECUTIONS BY THE CAPPER-VOLSTEAD ACT'S PROVISIONS THAT COOPERATIVES
CAN LAWFULLY MAKE "THE NECESSARY CONTRACTS AND AGREEMENTS" TO PROCESS,
HANDLE AND MARKET MILK FOR THEIR PRODUCER-MEMBERS.  THE EMBASSY ASSETS
THE ASSOCIATION ACQUIRED ARE USEFUL IN PROCESSING AND MARKETING MILK,
AND WE MAY ASSUME, AS IT IS CONTENDED, THAT THEIR PURCHASE SIMPLY FOR
BUSINESS USE, WITHOUT MORE, OFTEN WOULD BE PERMITTED AND WOULD BE
LAWFUL UNDER THE CAPPER-VOLSTEAD ACT.  BUT EVEN LAWFUL CONTRACTS AND
BUSINESS ACTIVITIES MAY HELP TO MAKE UP A PATTERN OF CONDUCT UNLAWFUL
UNDER THE SHERMAN ACT.  (FN22)  THE CONTRACT OF PURCHASE HERE, VIEWED
IN THE CONTEXT OF ALL THE EVIDENCE AND FINDINGS, WAS NOT ONE MADE
MERELY TO ADVANCE THE ASSOCIATION'S OWN PERMISSIBLE PROCESSING AND
MARKETING BUSINESS; IT WAS ENTERED INTO BY BOTH PARTIES, ACCORDING TO
THE COURT'S FINDINGS AS WE UNDERSTAND THEM, BECAUSE OF ITS USEFULNESS
AS A WEAPON TO RESTRAIN AND SUPPRESS COMPETITORS AND COMPETITION IN THE
WASHINGTON METROPOLITAN AREA.  WE HOLD THAT THE PRIVILEGE THE CAPPER
VOLSTEAD ACT GRANTS PRODUCERS TO CONDUCT THEIR AFFAIRS COLLECTIVELY
DOES NOT INCLUDE A PRIVILEGE TO COMBINE WITH COMPETITORS (FN23) SO AS
TO USE A MONOPOLY POSITION AS A LEVER FURTHER TO SUPPRESS COMPETITION
BY AND AMONG INDEPENDENT PRODUCERS AND PROCESSORS. 

ADEQUACY OF RELIEF.  - THE GOVERNMENT'S APPEAL IN THIS CASE IS
DIRECTED IN PART AT THE RELIEF GRANTED IT BY THE DISTRICT COURT.  THE
JUDGMENT REQUIRES THE ASSOCIATION TO "DISPOSE OF AS A UNIT AND AS A
GOING DAIRY BUSINESS ALL EMBASSY ASSETS  ...  TANGIBLE OR INTANGIBLE,
WHICH IT ACQUIRED ON JULY 26, 1954, AND REPLACEMENTS THEREFOR," AND TO
DO SO IN "GOOD FAITH" TO PRESERVE THE BUSINESS IN "AS GOOD CONDITION AS
POSSIBLE."  THE DISTRICT COURT REFUSED TO GO FURTHER AND REQUIRE THE
ASSOCIATION TO DISPOSE OF "ALL ASSETS USED" IN THE EMBASSY OPERATION,
TO PROHIBIT THE ASSOCIATION FROM OPERATING AS A DEALER IN THE
WASHINGTON MARKET FOR A PERIOD AFTER DIVESTITURE, TO PREVENT THE FUTURE
ACQUISITION OF DISTRIBUTORS WITHOUT PRIOR APPROVAL OF THE GOVERNMENT,
AND TO GRANT THE GOVERNMENT GENERAL "VISITATION RIGHTS" AS TO THE
ASSOCIATION'S RECORDS AND EMPLOYEES.  THE DISTRICT COURT WAS OF THE
VIEW THAT THE GOVERNMENT WOULD EITHER BE ADEQUATELY PROTECTED AS TO
THESE MATTERS BY THE "GOOD FAITH" REQUIREMENT OR BY SUBSEQUENT ORDERS
OF THE DISTRICT COURT WHEN THE OCCASION NECESSITATED.  THE FORMULATION
OF DECREES IS LARGELY LEFT TO THE DISCRETION OF THE TRIAL COURT, AND WE
SEE NO REASON TO REJECT THE JUDGMENT OF THE DISTRICT COURT THAT THE
RELIEF IT GRANTED WILL BE EFFECTIVE IN UNDOING THE VIOLATION IT FOUND
IN VIEW OF THE FACT THAT IT ALSO RETAINS THE CAUSE FOR FUTURE ORDERS,
INCLUDING THE RIGHT OF VISITATION IF DEEMED APPROPRIATE.  SEE
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 22-23. 

ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT FINDING VIOLATIONS OF
SEC. 7 OF THE CLAYTON ACT AND SEC. 3 OF THE SHERMAN ACT IS AFFIRMED,
AND ITS DISMISSAL OF THE CHARGES UNDER SEC. 2 OF THE SHERMAN ACT IS
REVERSED AND REMANDED FOR A TRIAL.  AFFIRMED IN PART, REVERSED AND
REMANDED IN PART. 

FN1  SHERMAN ACT SEC. 2:  "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, AND, ON CONVICTION THEREOF, SHALL BE PUNISHED BY FINE NOT
EXCEEDING FIFTY THOUSAND DOLLARS, OR BY IMPRISONMENT NOT EXCEEDING ONE
YEAR, OR BY BOTH SAID PUNISHMENTS, IN THE DISCRETION OF THE COURT."  26
STAT. 209 (1890), AS AMENDED, 15 U.S.C. SEC. 2. 

FN2  SHERMAN ACT SEC. 3:  "EVERY CONTRACT, COMBINATION IN FORM OF
TRUST OR OTHERWISE, OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE IN
ANY TERRITORY OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA  ...
OR BETWEEN THE DISTRICT OF COLUMBIA AND ANY STATE OR STATES OR FOREIGN
NATIONS, IS DECLARED ILLEGAL  ...  ."  26 STAT. 209 (1890), AS AMENDED,
15 U.S.C. SEC. 3.  SECTION 1 DECLARES THE SAME PROHIBITION AS TO
COMMERCE "AMONG THE SEVERAL STATES."  ALTHOUGH THERE WAS ALSO A CHARGE
AGAINST THE ASSOCIATION UNDER SEC. 1 THERE WAS NO JUDGMENT AGAINST IT
ON THIS SECTION, AND THAT CHARGE IS NO LONGER RELEVANT HERE. 

FN3  CLAYTON ACT SEC. 7:  "NO CORPORATION ENGAGED IN COMMERCE SHALL
ACQUIRE, DIRECTLY OR INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR
OTHER SHARE CAPITAL AND NO CORPORATION SUBJECT TO THE JURISDICTION OF
THE FEDERAL TRADE COMMISSION SHALL ACQUIRE THE WHOLE OR ANY PART OF THE
ASSETS OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE IN ANY
LINE OF COMMERCE IN ANY SECTION OF THE COUNTRY, THE EFFECT OF SUCH
ACQUISITION MAY BE SUBSTANTIALLY TO LESSEN COMPETITION, OR TO TEND TO
CREATE A MONOPOLY. 

     *         *     *         *         * 

"NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO TRANSACTIONS DULY
CONSUMMATED PURSUANT TO AUTHORITY GIVEN BY THE  ...  (INDEPENDENT
REGULATORY COMMISSIONS) OR THE SECRETARY OF AGRICULTURE UNDER ANY
STATUTORY PROVISION VESTING SUCH POWER IN SUCH COMMISSION, SECRETARY,
OR BOARD."  38 STAT. 731 (1914), AS AMENDED, 15 U.S.C. SEC. 18. 

FN4  38 STAT. 731 (1914), 15 U.S.C. SEC. 17, SET FORTH IN NOTE 11,
INFRA. 

FN5  CAPPER-VOLSTEAD ACT SEC. 1:  "PERSONS ENGAGED IN THE PRODUCTION
OF AGRICULTURAL PRODUCTS AS FARMERS, PLANTERS, RANCHMEN, DAIRYMEN, NUT
OR FRUIT GROWERS MAY ACT TOGETHER IN ASSOCIATIONS, CORPORATE OR
OTHERWISE, WITH OR WITHOUT CAPITAL STOCK, IN COLLECTIVELY PROCESSING,
PREPARING FOR MARKET, HANDLING, AND MARKETING IN INTERSTATE AND FOREIGN
COMMERCE, SUCH PRODUCTS OF PERSONS SO ENGAGED.  SUCH ASSOCIATIONS MAY
HAVE MARKETING AGENCIES IN COMMON; AND SUCH ASSOCIATIONS AND THEIR
MEMBERS MAY MAKE THE NECESSARY CONTRACTS AND AGREEMENTS TO EFFECT SUCH
PURPOSES  ...  ."  42 STAT. 388 (1922), 7 U.S.C. SEC. 291.  SECTION 2
IS SET FORTH IN NOTE 7, INFRA. 

FN6  32 STAT. 823 (1903), AS AMENDED, 15 U.S.C. SEC. 29. 

FN7  CAPPER-VOLSTEAD ACT SEC. 2:  "IF THE SECRETARY OF AGRICULTURE
SHALL HAVE REASON TO BELIEVE THAT ANY SUCH ASSOCIATION MONOPOLIZES OR
RESTRAINS TRADE IN INTERSTATE OR FOREIGN COMMERCE TO SUCH AN EXTENT
THAT THE PRICE OF ANY AGRICULTURAL PRODUCT IS UNDULY ENHANCED BY REASON
THEREOF (AFTER A "SHOW CAUSE" HEARING HE MAY DIRECT) SUCH ASSOCIATION
TO CEASE AND DESIST FROM MONOPOLIZATION OR RESTRAINT OF TRADE  ...  ." 
THIS ORDER MAY BE ENFORCED BY THE ATTORNEY GENERAL IF NOT OBEYED BY THE
ASSOCIATION.  42 STAT. 388 (1922), 7 U.S.C. SEC. 292. 

FN8  KLOR'S, INC., V. BROADWAY-HALE STORES, INC., 359 U.S. 207, 211;
UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 226, N. 59;
STANDARD OIL CO. OF NEW JERSEY V. UNITED STATES, 221 U.S. 1, 59-60. 

FN9  SEE, E.G., REEVES V. DECORAH FARMERS' COOPERATIVE SOCIETY, 160
IOWA 194, 140 N.W. 844 (1913); BURNS V. WRAY FARMERS' GRAIN CO., 65
COLO. 425, 176 P. 487 (1918); FORD V. CHICAGO MILK SHIPPERS' ASSN., 155
ILL. 166, 39 N.E. 651 (1895).  CONTRA, BURLEY TOBACCO SOCIETY V.
GILLASPY, 51 IND. APP. 583, 100 N.E. 89 (1912).  HANNA, ANTITRUST
IMMUNITIES OF COOPERATIVE ASSOCIATIONS, 13 LAW AND CONTEMP.  PROB.  488
490 (1948); HANNA, COOPERATIVE ASSOCIATIONS AND THE PUBLIC, 29 MICH. L.
REV. 148, 163-165 (1930); JENSEN, THE BILL OF RIGHTS OF U.S.
COOPERATIVE AGRICULTURE, 20 ROCKY MT. L. REV. 181, 184-189 (1948).  SEE
GENERALLY ATT'Y GEN. NAT'L COMM.  ANTITRUST REP. (1955), 306-313; NOTE,
57 MICH. L. REV. 921 (1959). 

FN10  SEE STATUTES COLLECTED IN JENSEN, THE BILL OF RIGHTS OF U.S.
COOPERATIVE AGRICULTURE, 20 ROCKY MT. L. REV. 181, 191, N. 29 (1948);
NOTE, 38 HARV. L. REV. 87, 89, N. 17 (1924).  SEE CONNOLLY V. UNION
SEWER PIPE CO., 184 U.S. 540, 556-558 (1902), HOLDING ILLINOIS
EXEMPTION STATUTE UNCONSTITUTIONAL, AND SEE DISSENT PER MCKENNA, J., AT
565, 571; OVERRULED BY TIGNER V. TEXAS, 310 U.S. 141 (1940). 

FN11  CLAYTON ACT SEC. 6:  "THE LABOR OF A HUMAN BEING IS NOT A
COMMODITY OR ARTICLE OF COMMERCE.  NOTHING CONTAINED IN THE ANTITRUST
LAWS SHALL BE CONSTRUED TO FORBID THE EXISTENCE AND OPERATION OF LABOR,
AGRICULTURAL, OR HORTICULTURAL ORGANIZATIONS, INSTITUTED FOR THE
PURPOSES OF MUTUAL HELP, AND NOT HAVING CAPITAL STOCK OR CONDUCTED FOR
PROFIT, OR TO FORBID OR RESTRAIN INDIVIDUAL MEMBERS OF SUCH
ORGANIZATIONS FROM LAWFULLY CARRYING OUT THE LEGITIMATE OBJECTS
THEREOF; NOR SHALL SUCH ORGANIZATIONS, OR THE MEMBERS THEREOF, BE HELD
OR CONSTRUED TO BE ILLEGAL COMBINATIONS OR CONSPIRACIES IN RESTRAINT OF
TRADE, UNDER THE ANTITRUST LAWS."  38 STAT. 730 (1914), 15 U.S.C. SEC.
17. 

FN12  ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, 325 U.S. 797, 805;
DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443, 468-469.  CF.
UNITED STATES V. HUTCHESON, 312 U.S. 219. 

FN13  "IN THE LIGHT OF PREVIOUS DECISIONS OF THE COURTS AND IN VIEW
OF A POSSIBLE INTERPRETATION OF THE LAW WHICH WOULD EMPOWER THE COURTS
TO ORDER THE DISSOLUTION OF SUCH ORGANIZATIONS AND ASSOCIATIONS, YOUR
COMMITTEE FEELS THAT ALL DOUBT SHOULD BE REMOVED AS TO THE LEGALITY OF
THE EXISTENCE AND OPERATIONS OF THESE ORGANIZATIONS AND ASSOCIATIONS,
AND THAT THE LAW SHOULD NOT BE CONSTRUED IN SUCH A WAY AS TO AUTHORIZE
THEIR DISSOLUTION BY THE COURTS UNDER THE ANTITRUST LAWS OR TO FORBID
THE INDIVIDUAL MEMBERS OF SUCH ASSOCIATIONS FROM CARRYING OUT THE
LEGITIMATE AND LAWFUL OBJECTS OF THEIR ASSOCIATIONS."  H.R. REP. NO.
627, 63D CONG., 2D SESS. 16; S. REP.  NO. 698, 63D CONG., 2D SESS. 12. 

FN14  SOME CONGRESSMEN OPPOSED SEC. 6 OF THE CLAYTON ACT BECAUSE IT
DID NOT INCLUDE AGRICULTURE ASSOCIATIONS WITH CAPITAL STOCK.  "UNDER
THE PROVISIONS OF SECTION 7 (NOW SEC. 6) OF THIS BILL FARMERS'
ORGANIZATIONS WITH CAPITAL STOCK, ORGANIZED FOR PROFIT, WOULD BE LEFT
SUBJECT TO THE PROVISIONS OF THE SHERMAN ANTITRUST LAW."  H.R. REP. NO.
627, PT. 4, 63D CONG., 2D SESS. 4.  AND SEE ID., PT. 3, 10. 

FN15  H.R. REP. NO. 24, 67TH CONG., 1ST SESS. 2. 

FN16  THE SOLICITOR OF THE DEPARTMENT OF AGRICULTURE TESTIFIED THAT
IT WAS HIS "OPINION THAT IF THE FARMERS WANT TO CREATE MONOPOLIES OR
WANT TO ENGAGE IN UNFAIR PRACTICES IN COMMERCE, THIS BILL CERTAINLY
WOULD NOT GIVE THEM THE RIGHT TO DO IT, AND THEY WOULD HAVE TO GET
ANOTHER BILL  ...  . THESE ORGANIZATIONS WOULD NOT BE ALLOWED TO ADOPT
ANY ILLEGAL MEANS OR METHODS OF CONDUCTING THEIR BUSINESS," AND IF THEY
"ENGAGED IN SOME PRACTICE THAT PREVENTED OTHER PEOPLE FROM SELLING
THEIR MILK  ...  THEY WOULD BE SUBJECT TO THE ANTITRUST LAWS  ...  .
IT DOES NOT SAY  ...  THAT THEY MAY ADOPT ANY UNFAIR METHODS OF
COMPETITION."  THE SECRETARY OF AGRICULTURE TESTIFIED TO THE SAME
EFFECT.  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE JUDICIARY
COMMITTEE ON H.R. 2373, 67TH CONG., 1ST SESS. 203, 204, 205.    FN17
OP. CIT., SUPRA, NOTE 15, AT 3. 

FN18  167 F. SUPP. 799, 807-808. 

FN19  SEE NOTE 3, SUPRA.    FN20  AGRICULTURAL ADJUSTMENT ACT, SEC.
8B, AS AMENDED, 7 U.S.C. SEC. 608B.  UNITED STATES V. BORDEN CO., 308
U.S. 188, 198-202; UNITED STATES V. ROCK ROYAL CO-OPERATIVE, INC., 307
U.S. 533, 560; UNITED STATES V. MARYLAND & VIRGINIA MILK PRODUCERS'
ASSN., INC., 90 F. SUPP.  681, 688. 

FN21  SEE UNITED STATES V. GRIFFITH, 334 U.S. 100, 105.  CF. UNITED
STATES V. COLUMBIA STEEL CO., 334 U.S. 495, 525; UNITED STATES V.
PARAMOUNT PICTURES, INC., 334 U.S. 131, 173. 

FN22  SEE SCHINE CHAIN THEATRES, INC., V. UNITED STATES, 334 U.S.
110, 119. 

FN23  SEE UNITED STATES V. MARYLAND COOPERATIVE MILK PRODUCERS, INC.,
145 F. SUPP. 151. 
..END :













NOSTRAND V. LITTLE 362 U.S. 474 


NO. 342.  ARGUED MARCH 30-31, 1960 - DECIDED MAY 2, 1960 - 53 WASH. 2D
460, 335 P.2D 10, JUDGMENT VACATED AND CASE REMANDED. 


IN A DECLARATORY JUDGMENT ACTION, A STATE SUPREME COURT SUSTAINED THE
VALIDITY OF ANY EMPLOYEE OF THE STATE OR ANY OF ITS POLITICAL
SUBDIVISIONS WHO REFUSES TO SWEAR THAT HE IS NOT PRESENTLY A MEMBER OF
THE COMMUNIST PARTY OR ANY OTHER SUBVERSIVE ORGANIZATION.  IN THIS
COURT, APPELLANTS CONTENDED THAT NO HEARING IS AFFORDED AT WHICH AN
EMPLOYEE CAN EXPLAIN OR DEFEND HIS REFUSAL TO TAKE THE OATH AND THAT
THIS VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT; BUT
THE STATE SUPREME COURT HAD NOT PASSED ON THE QUESTION WHETHER SUCH A
HEARING IS AFFORDED.  HELD:  THE JUDGMENT IS VACATED AND THE CASE IS
REMANDED TO THE STATE SUPREME COURT FOR FURTHER CONSIDERATION.  PP. 474
476. 

NOSTRAND ET AL. V. LITTLE ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

WASHINGTON REQUIRES EVERY PUBLIC EMPLOYEE TO SUBSCRIBE TO AN OATH
THAT HE IS "NOT A SUBVERSIVE PERSON OR A MEMBER OF THE COMMUNIST PARTY
OR ANY SUBVERSIVE ORGANIZATION, FOREIGN OR OTHERWISE, WHICH ENGAGES IN
OR ADVOCATES, ABETS, ADVISES, OR TEACHES THE OVERTHROW, DESTRUCTION OR
ALTERATION OF THE CONSTITUTIONAL FORM OF THE GOVERNMENT OF THE UNITED
STATES, OR OF THE STATE OF WASHINGTON, OR OF ANY POLITICAL SUBDIVISION
OF EITHER OF THEM, BY REVOLUTION, FORCE OR VIOLENCE; ...  ."  REFUSAL
SO TO DO "ON ANY GROUNDS SHALL BE CAUSE FOR IMMEDIATE TERMINATION OF
SUCH EMPLOYEE'S EMPLOYMENT."* 

*CHAPTER 377, LAWS OF WASHINGTON 1955.  THE PERTINENT PART OF THAT
STATUTE READS: 

"SEC. 1.  EVERY PERSON AND EVERY BOARD, COMMISSION, COUNCIL,
DEPARTMENT, COURT OR OTHER AGENCY OF THE STATE OF WASHINGTON OR ANY
POLITICAL SUBDIVISION THEREOF, WHO OR WHICH APPOINTS OR EMPLOYS OR
SUPERVISES IN ANY MANNER THE APPOINTMENT OR EMPLOYMENT OF PUBLIC
OFFICIALS OR EMPLOYEES  ... SHALL REQUIRE EVERY EMPLOYEE  ...  TO STATE
UNDER OATH WHETHER OR NOT HE OR SHE IS A MEMBER OF THE COMMUNIST PARTY
OR OTHER SUBVERSIVE ORGANIZATION, AND REFUSAL TO ANSWER ON ANY GROUNDS
SHALL BE CAUSE FOR IMMEDIATE TERMINATION OF SUCH EMPLOYEE'S EMPLOYMENT
...  ." 

THE WASHINGTON SUPREME COURT CONSTRUED THIS STATUTE AS REQUIRING THE
ELEMENT OF SCIENTER. 

APPELLANTS BROUGHT THIS DECLARATORY JUDGMENT ACTION CLAIMING THE ACT
TO BE VIOLATIVE OF DUE PROCESS AS WELL AS OTHER PROVISIONS OF THE
FEDERAL CONSTITUTION.  ONE OF THE CLAIMS IS THAT NO HEARING IS AFFORDED
AT WHICH THE EMPLOYEE CAN EXPLAIN OR DEFEND HIS REFUSAL TO TAKE THE
OATH.  THE SUPREME COURT OF WASHINGTON DID NOT PASS ON THIS POINT.  THE
ATTORNEY GENERAL SUGGESTS IN HIS BRIEF THAT PRIOR TO ANY DECISION
THEREON HERE, "THE SUPREME COURT OF WASHINGTON SHOULD BE FIRST GIVEN
THE OPPORTUNITY TO CONSIDER AND PASS UPON" IT.  MOREOVER, APPELLANTS
POINT TO A RECENT CASE OF THE WASHINGTON SUPREME COURT, CITY OF SEATTLE
V. ROSS, 54 WASH. 2D 655, 344 P.2D 216 (1959), AS ANALOGOUS.  THERE
THAT COURT OVERTURNED AN ORDINANCE BECAUSE IT ESTABLISHED A PRESUMPTION
OF GUILT WITHOUT AFFORDING THE ACCUSED AN OPPORTUNITY OF A HEARING TO
REBUT THE SAME.  IN THE LIGHT OF THESE CIRCUMSTANCES WE CANNOT SAY HOW
THE SUPREME COURT OF WASHINGTON WOULD CONSTRUE THIS STATUTE ON THE
HEARING POINT. 

THE DECLARATORY NATURE OF THE CASE, THE FACT THAT THE STATE'S STATUTE
HERE UNDER ATTACK SUPPLEMENTS PREVIOUS STATUTORY PROVISIONS RAISING
QUESTIONS CONCERNING THE APPLICABILITY OF THE LATTER, AND THE PRINCIPLE
OF COMITY THAT SHOULD BE AFFORDED THE STATE WITH REGARD TO THE
INTERPRETATION OF ITS OWN LAWS, BRING US TO THE CONCLUSION THAT WE MUST
REMAND THE CASE FOR FURTHER CONSIDERATION.  CF. WILLIAMS V. GEORGIA,
349 U.S. 375 (1955).  VACATED AND REMANDED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I THINK THE REMAND IN THE PRESENT CASE IS A USELESS ACT.  THE SUPREME
COURT OF WASHINGTON HAS CLEARED UP ANY AMBIGUITY THAT COULD BE RELEVANT
TO THE ISSUES POSED HERE. 

THE PRESENT STATUTE SAYS THAT THE REFUSAL TO TAKE THE OATH "ON ANY
GROUNDS" SHALL BE CAUSE FOR "IMMEDIATE TERMINATION" OF EMPLOYMENT.  THE
SUPREME COURT OF WASHINGTON HAS HELD THAT THE OATH STATING WHETHER THE
EMPLOYEE IS OR IS NOT A MEMBER OF A "SUBVERSIVE ORGANIZATION" INCLUDES
"THE ELEMENT OF SCIENTER."*  YET NEITHER KNOWING MEMBERS NOR INNOCENT
MEMBERS ARE EXCUSED FROM TAKING THE OATH.  A HEARING "AT WHICH THE
EMPLOYEE CAN EXPLAIN OR DEFEND HIS REFUSAL TO TAKE THE OATH," TO USE
THE WORDS OF THE COURT, WOULD SEEM THEREFORE TO SERVE NO FUNCTION UNDER
THIS TYPE OF STATUTE.  IF THE PRESENT STATUTE IS TAKEN AS IT IS
WRITTEN, I THINK THIS CASE IS RIPE FOR DECISION. 

*THE OATH WHICH WAS PREPARED BY THE WASHINGTON ATTORNEY GENERAL AND
TENDERED TO APPELLANTS, HOWEVER, CONTAINS NO QUALIFICATIONS.  IT READS,
IN MATERIAL PART, AS FOLLOWS: 

"(2) THAT I AM NOT A SUBVERSIVE PERSON OR A MEMBER OF THE COMMUNIST
PARTY OR ANY SUBVERSIVE ORGANIZATION, FOREIGN OR OTHERWISE, WHICH
ENGAGES IN OR ADVOCATES, ABETS, ADVISES, OR TEACHES THE OVERTHROW,
DESTRUCTION OR ALTERATION OF THE CONSTITUTIONAL FORM OF THE GOVERNMENT
OF THE UNITED STATES, OR OF THE STATE OF WASHINGTON, OR OF ANY
POLITICAL SUBDIVISION OF EITHER OF THEM, BY REVOLUTION, FORCE OR
VIOLENCE: 

"THAT THIS STATEMENT IS VOLUNTARILY MADE BY ME, PURSUANT TO THE
PROVISIONS OF CHAPTER 377, LAWS OF 1955, WITH FULL KNOWLEDGE THAT THE
SAME IS SUBJECT TO THE PENALTIES OF PERJURY." 

CITY OF SEATTLE V. ROSS, 54 WASH. 2D 655, 344 P.2D 216, DOES NOT SEEM
TO ME TO BE RELEVANT.  THE ORDINANCE THERE INVOLVED READ: 

"IT IS UNLAWFUL FOR ANYONE NOT LAWFULLY AUTHORIZED TO FREQUENT,
ENTER, BE IN, OR BE FOUND IN, ANY PLACE WHERE NARCOTICS, NARCOTIC DRUGS
OR THEIR DERIVATIVES ARE UNLAWFULLY USED, KEPT OR DISPOSED OF." 

THE DEFENDANT IN QUESTION ENTERED THE PREMISES INNOCENTLY AND
LAWFULLY WITHOUT KNOWLEDGE OF THE PRESENCE OF NARCOTICS.  HE WAS
CONVICTED, THE TRIAL COURT OVERRULING THE DEFENSE OF INNOCENCE. 

THE SUPREME COURT OF WASHINGTON REVERSED THE JUDGMENT OF CONVICTION,
HOLDING THE ORDINANCE WAS UNCONSTITUTIONAL AS APPLIED.  THE COURT SAID,
54 WASH. 2D, AT 658, 344 P.2D, AT 218: 

"THE RESPONDENT WOULD HAVE US REWRITE THE STATUTE TO EXCLUDE PERSONS
UPON THE PREMISES FOR LAWFUL PURPOSES, AS WELL AS THOSE WHO ARE
AUTHORIZED OR COMMISSIONED TO GO THERE.  THIS THE COURT CANNOT DO.
WHERE THE LANGUAGE OF A STATUTE IS PLAIN, UNAMBIGUOUS, AND WELL
UNDERSTOOD ACCORDING TO ITS NATURAL AND ORDINARY SENSE AND MEANING, THE
STATUTE ITSELF FURNISHES A RULE OF CONSTRUCTION BEYOND WHICH THE COURT
CANNOT GO.  PARKHURST V. CITY OF EVERETT, 51 WASH. 2D 292, 318 P.2D
327.  THE TRIAL COURT HAD NO DIFFICULTY IN DISCERNING THE MEANING OF
THE WORDS USED IN THIS ORDINANCE.  A PERSON 'LAWFULLY AUTHORIZED,' THE
COURT DECIDED AND WE AGREE, IS A PERSON CARRYING SOME EXPRESS AUTHORITY
TO GO UPON THE PREMISES, AS A LAW ENFORCEMENT OFFICER, NARCOTIC AGENT,
OR THE LIKE, AND NOT ONE WHO GOES UPON SOME LAWFUL BUSINESS BUT WITHOUT
EXPRESS AUTHORITY." 

A HEARING UNDER THE PRESENT STATUTE WOULD OBVIOUSLY BE IMPORTANT TO A
DETERMINATION OF THE EXISTENCE OF "SCIENTER" FOR PROSECUTION OF ONE WHO
TOOK THE OATH FOR PERJURY.  BUT SUCH A HEARING IS NOT GERMANE TO THE
QUESTION WHETHER UNDER THIS STATUTE A TEACHER HAS THE RIGHT TO REFUSE
TO TAKE THE OATH THAT IS TENDERED.  THE COMMAND OF THE STATUTE IS
CLEAR:  REFUSAL TO TAKE THE OATH "ON ANY GROUNDS" IS CAUSE FOR
DISCHARGE.  THAT COMMAND POSES THE CRITICAL ISSUE FOR US.  A REMAND FOR
A DETERMINATION OF WHETHER THERE WILL BE A HEARING THEREFORE SEEMS TO
ME TO BE A REMAND FOR AN IRRELEVANCY IN THE SETTING OF THIS CASE. 
..END :
















COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO V. NATIONAL LABOR RELATIONS
BOARD 362 U.S. 479 


NO. 418.  ARGUED APRIL 18, 1960 - DECIDED MAY 2, 1960 - 266 F.2D 823,
MODIFIED AND AFFIRMED. 


THE NATIONAL LABOR RELATIONS BOARD FOUND THAT, DURING THE COURSE OF A
STRIKE, PETITIONER UNIONS HAD VIOLATED SEC. 8(B)(1)(A) OF THE NATIONAL
LABOR RELATIONS ACT BY COERCING EMPLOYEES OF A TELEPHONE COMPANY IN THE
EXERCISE OF THEIR RIGHT TO REFRAIN FROM OR DISCONTINUE PARTICIPATION IN
THE STRIKE, AND IT ENTERED AN ORDER REQUIRING THE UNIONS TO CEASE AND
DESIST FROM RESTRAINING OR COERCING EMPLOYEES OF THE TELEPHONE COMPANY
"OR ANY OTHER EMPLOYER" IN THE EXERCISE OF RIGHTS GUARANTEED IN SEC. 7
OF THE ACT, THOUGH IT HAD NOT FOUND THAT THE UNIONS HAD ENGAGED IN
VIOLATIONS AGAINST THE EMPLOYEES OF ANY EMPLOYER OTHER THAN THE
TELEPHONE COMPANY.  HELD:  THE ORDER IS MODIFIED BY STRIKING THEREFROM
THE WORDS "OR ANY OTHER EMPLOYER," AND, AS SO MODIFIED, THE JUDGMENT OF
THE COURT OF APPEALS ENFORCING THE ORDER IS AFFIRMED.  PP. 479-481. 

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, ET AL. V. NATIONAL LABOR
RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE BOARD FOUND THAT THE PETITIONER UNIONS, DURING THE COURSE OF A
STRIKE, COERCED EMPLOYEES OF THE OHIO CONSOLIDATED TELEPHONE COMPANY IN
THE EXERCISE OF THEIR RIGHT TO REFRAIN FROM OR DISCONTINUE
PARTICIPATION THEREIN, IN VIOLATION OF SEC. 8(B)(1)(A) OF THE NATIONAL
LABOR RELATIONS ACT.  (FN1)  IT ENTERED AN ORDER REQUIRING THE UNIONS
TO CEASE AND DESIST "FROM IN ANY MANNER RESTRAINING OR COERCING
EMPLOYEES OF OHIO CONSOLIDATED TELEPHONE COMPANY OR ANY OTHER EMPLOYER
IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION 7 OF THE ACT."  THE
COURT OF APPEALS ENFORCED THE ORDER AFTER DELETING THE WORDS "IN ANY
MANNER."  266 F.2D 823.  BECAUSE OF AN ASSERTED CONFLICT WITH THE
DECISION OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN LABOR BOARD
V. LOCAL 926, INT. UNION OF OPERATING ENGRS., 267 F.2D 418, WE BROUGHT
THE CASE HERE.  361 U.S. 893.  THE ONLY CHALLENGE HERE TO THE ORDER AS
SO AMENDED IS TO ITS VALIDITY AS EXTENDED TO "ANY OTHER EMPLOYER," AS
WELL AS THE TELEPHONE COMPANY. 

PETITIONERS WERE NOT FOUND TO HAVE ENGAGED IN VIOLATIONS AGAINST THE
EMPLOYEES OF ANY EMPLOYER OTHER THAN OHIO CONSOLIDATED AND WE FIND
NEITHER JUSTIFICATION NOR NECESSITY FOR EXTENDING THE COVERAGE OF THE
ORDER GENERALLY BY THE INCLUSION THEREIN OF THE PHRASE "ANY OTHER
EMPLOYER."  "IT WOULD SEEM  ...  CLEAR THAT THE AUTHORITY CONFERRED ON
THE BOARD TO RESTRAIN THE PRACTICE WHICH IT HAS FOUND  ...  TO HAVE
BEEN COMMITTED IS NOT AN AUTHORITY TO RESTRAIN GENERALLY ALL OTHER
UNLAWFUL PRACTICES WHICH IT HAS NEITHER FOUND TO HAVE BEEN PURSUED NOR
PERSUASIVELY TO BE RELATED TO THE PROVEN UNLAWFUL CONDUCT."  LABOR
BOARD V. EXPRESS PUB. CO., 312 U.S. 426, 433 (1941).  SEE ALSO MAY
STORES CO. V. LABOR BOARD, 326 U.S. 376 (1945).  THAT LOANED EMPLOYEES
OF OTHER AFFILIATED COMPANIES WERE INCLUDED WITHIN THE AMBIT OF
PETITIONERS' COERCIVE ACTS PLAINLY DOES NOT EVIDENCE SUCH A GENERALIZED
SCHEME AGAINST ALL TELEPHONE EMPLOYERS, FOR IT WAS ONLY THE EMPLOYMENT
OF SUCH EMPLOYEES AT THE STRUCK PLANT THAT BROUGHT THEM WITHIN THE
SCOPE OF THE UNIONS' ACTIVITIES.  (FN2)  WE THEREFORE CONCLUDE THAT THE
INCLUSION IN THE ORDER OF THE WORDS "OR ANY OTHER EMPLOYER" WAS
UNWARRANTED AND THE ORDER IS MODIFIED BY STRIKING THE SAME THEREFROM. 
AS SO MODIFIED, THE JUDGMENT IS AFFIRMED.  MODIFIED AND AFFIRMED. 

FN1  THAT SECTION READS IN PERTINENT PART: 

SEC. 8(B).  "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION OR ITS AGENTS: 

"(1) TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7 ...  ."  61 STAT. 141. 


"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)."  61 STAT.
140. 

FN2  IN THE COURT OF APPEALS, THE BOARD SOUGHT TO JUSTIFY THE BREADTH
OF ITS ORDER BY RELYING ON TWO COMPROMISE SETTLEMENT AGREEMENTS
INVOLVING ACTIVITIES OF THE INTERNATIONAL AND OTHER LOCALS AGAINST
OTHER EMPLOYERS.  NEITHER THE OPINION OF THE BOARD NOR THAT OF THE
COURT OF APPEALS IN THIS CASE INDICATES THAT ANY RELIANCE WAS PLACED ON
SUCH AGREEMENTS, AND IN THIS COURT THE BOARD DISCLAIMS ANY SUCH
RELIANCE. 
..END :





NEW HAMPSHIRE FIRE INSURANCE CO. V. SCANLON 362 U.S. 404 


NO. 339.  ARGUED MARCH 22, 1960 - DECIDED APRIL 25, 1960 - 267 F.2D 941,
AFFIRMED. 


ACTING UNDER STATUTORY AUTHORITY TO LEVY, DISTRAIN OR SEIZE PROPERTY
OR RIGHTS TO PROPERTY BELONGING TO A DELINQUENT TAXPAYER, A DISTRICT
DIRECTOR OF INTERNAL REVENUE SERVED NOTICES OF LEVY ON A CITY DEMANDING
THAT IT PAY TO HIM MONEY ALLEGED TO BE DUE FROM THE CITY TO A
CONTRACTOR FOR CONSTRUCTION WORK.  THE SURETY ON THE CONTRACTOR'S
PERFORMANCE AND PAYMENT BONDS THEN INSTITUTED A SUMMARY PROCEEDING IN A
FEDERAL DISTRICT COURT TO HAVE THE LEVY QUASHED, CLAIMING THAT THE
MONEY WAS DUE TO IT, INSTEAD OF TO THE CONTRACTOR, SINCE THE SURETY HAD
BEEN COMPELLED TO COMPLETE PERFORMANCE OF THE CONTRACT WHEN THE
CONTRACTOR DEFAULTED.  HELD:  THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO DETERMINE THE RIGHTS OF THE PARTIES IN A SUMMARY
PROCEEDING.  PP. 405-410. 

(A)  ESPECIALLY WHEN A CONTROVERSY LIKE THIS IS BEGUN BY PEREMPTORY
SEIZURE WITHOUT AN INITIAL DETERMINATION OF THE TAXPAYER'S LIABILITY,
THERE IS NEITHER JUSTIFICATION NOR AUTHORITY FOR CARVING OUT AN
EXCEPTION TO THE UNIFORM AND REGULAR CIVIL PROCEDURE LAID DOWN BY THE
FEDERAL RULES, EITHER FOR THE BENEFIT OF THE PARTY FROM WHOM THE
PROPERTY WAS SEIZED OR FOR ANY OTHER CLAIMANT.  PP. 406-408. 

(B)  SUCH A SUMMARY TRIAL OF A CLAIM FOR PROPERTY SEIZED BY INTERNAL
REVENUE OFFICERS IS NOT AUTHORIZED BY 28 U.S.C. SEC. 2463.  PP. 408
410. 

NEW HAMPSHIRE FIRE INSURANCE CO. V. SCANLON, DISTRICT DIRECTOR OF
INTERNAL REVENUE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ACTING PURSUANT TO STATUTORY AUTHORITY TO LEVY, DISTRAIN OR SEIZE
PROPERTY OR RIGHTS TO PROPERTY BELONGING TO A DELINQUENT TAXPAYER,
(FN1) RESPONDENT SCANLON, DISTRICT DIRECTOR OF INTERNAL REVENUE, SERVED
NOTICES OF LEVY ON THE CITY OF NEW YORK DEMANDING THAT IT PAY TO THE
DIRECTOR MONEY ALLEGED TO BE DUE FROM THE CITY TO RESPONDENT ACME
CASSA, INC., UNDER A CONTRACT FOR THE CONSTRUCTION OF A SCHOOL
PLAYGROUND.  THE PURPOSE OF THIS DISTRAINT WAS TO SECURE PAYMENT OF
TAXES OWING BY TAXPAYER ACME CASSA TO THE FEDERAL GOVERNMENT.  THE
PETITIONER, NEW HAMPSHIRE FIRE INSURANCE CO., THEN BROUGHT THIS SUMMARY
PROCEEDING, BY A "PETITION" IN A UNITED STATES DISTRICT COURT, SEEKING
TO HAVE THE LEVY QUASHED.  THE "PETITION" ALLEGED THAT THE INDEBTEDNESS
OF THE CITY FOR THE CONSTRUCTION WORK WAS NOT OWING TO ACME CASSA BUT
TO THE PETITIONER BECAUSE, UNDER ITS OBLIGATION AS SURETY FOR CASSA'S
FAITHFUL PERFORMANCE OF THE CONSTRUCTION CONTRACT, THE INSURANCE
COMPANY HAD BEEN COMPELLED TO COMPLETE THE PLAYGROUND AFTER CASSA GOT
INTO FINANCIAL DIFFICULTIES AND DEFAULTED ON THE JOB.  POINTING OUT
THAT PETITIONER COULD INSTITUTE A PLENARY SUIT FOR RECOVERY ON THE
INDEBTEDNESS IF IT CHOSE, THE DISTRICT COURT HELD THAT IT WAS WITHOUT
JURISDICTION TO DETERMINE THE RESPECTIVE RIGHTS OF THE PARTIES IN A
SUMMARY PROCEEDING, AND ACCORDINGLY DISMISSED THE PETITION.  (FN2)  THE
COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED UPON THE OPINION OF
THE DISTRICT COURT.  (FN3)  BECAUSE THE COURT OF APPEALS FOR THE THIRD
CIRCUIT HAD PREVIOUSLY HELD THAT A CLAIMANT OF PROPERTY SO DISTRAINED
FOR TAX DELINQUENCIES NEED NOT RESORT TO A PLENARY ACTION BUT COULD
ADJUDICATE THE CONTROVERSY SUMMARILY, ERSA, INC. V. DUDLEY, 234 F.2D
178, 180, RAFFAELE V. GRANGER, 196 F.2D 620; ROTHENSIES V. ULLMAN, 110
F.2D 590, WE GRANTED CERTIORARI TO RESOLVE THE INTERCIRCUIT CONFLICT. 
361 U.S. 881. 

SUMMARY TRIAL OF CONTROVERSIES OVER PROPERTY AND PROPERTY RIGHTS IS
THE EXCEPTION IN OUR METHOD OF ADMINISTERING JUSTICE.  SUPPLEMENTING
THE CONSTITUTIONAL, STATUTORY, AND COMMON-LAW REQUIREMENTS FOR THE
ADJUDICATION OF CASES OR CONTROVERSIES, THE FEDERAL RULES OF CIVIL
PROCEDURE PROVIDE THE NORMAL COURSE FOR BEGINNING, CONDUCTING, AND
DETERMINING CONTROVERSIES.  RULE 1 DIRECTS THAT THE CIVIL RULES SHALL
GOVERN ALL SUITS OF A CIVIL NATURE, WITH CERTAIN EXCEPTIONS STATED IN
RULE 81 NONE OF WHICH IS RELEVANT HERE.  RULE 2 DIRECTS THAT "THERE
SHALL BE ONE FORM OF ACTION TO BE KNOWN AS 'CIVIL ACTION.'"  RULE 3
PROVIDES THAT "A CIVIL ACTION IS COMMENCED BY FILING A COMPLAINT WITH
THE COURT."  RULE 56 SETS FORTH AN EXPEDITIOUS MOTION PROCEDURE FOR
SUMMARY JUDGMENT IN AN ORDINARY, PLENARY CIVIL ACTION.  OTHER RULES SET
OUT IN DETAIL THE MANNER, TIME, FORM AND KINDS OF PROCESS, SERVICE,
PLEADINGS, OBJECTIONS, DEFENSES, COUNTERCLAIMS AND MANY OTHER IMPORTANT
GUIDES AND REQUIREMENTS FOR PLENARY CIVIL TRIALS.   THE VERY PURPOSE OF
SUMMARY RATHER THAN PLENARY TRIALS IS TO ESCAPE SOME OR MOST OF THESE
TRIAL PROCEDURES.  SUMMARY TRIALS, AS IS POINTED OUT IN THE
PETITIONER'S BRIEF, MAY BE CONDUCTED WITHOUT FORMAL PLEADINGS, ON SHORT
NOTICE, WITHOUT SUMMONS AND COMPLAINTS, GENERALLY ON AFFIDAVITS, AND
SOMETIMES EVEN EX PARTE.  (FN4)  SUCH SUMMARY TRIALS, IT HAS BEEN SAID,
WERE PRACTICALLY UNKNOWN TO THE ENGLISH COMMON LAW AND IT MAY BE ADDED
THAT THEY HAVE HAD LITTLE ACCEPTANCE IN THIS COUNTRY.  (FN5)  IN THE
ABSENCE OF EXPRESS STATUTORY AUTHORIZATION, (FN6) COURTS HAVE BEEN
EXTREMELY RELUCTANT TO ALLOW PROCEEDINGS MORE SUMMARY THAN THE FULL
COURT TRIAL AT COMMON LAW.  (FN7)  ESPECIALLY WHEN A CONTROVERSY LIKE
THIS IS BEGUN BY PEREMPTORY SEIZURE WITHOUT AN INITIAL DETERMINATION OF
THE TAXPAYER'S LIABILITY, THERE IS NEITHER JUSTIFICATION NOR AUTHORITY
FOR CARVING OUT AN EXCEPTION TO THE UNIFORM AND REGULAR CIVIL PROCEDURE
LAID DOWN BY THE FEDERAL RULES, EITHER FOR THE BENEFIT OF THE PARTY
FROM WHOM THE PROPERTY WAS SEIZED OR FOR ANY OTHER CLAIMANT. 

PETITIONER CONTENDS, HOWEVER, THAT THERE IS EXPRESS STATUTORY
APPROVAL FOR SUMMARY TRIAL OF A CLAIM FOR PROPERTY SEIZED BY INTERNAL
REVENUE OFFICERS.  FOR THIS CONTENTION PETITIONER RELIES ON 28 U.S.C.
SEC. 2463 WHICH READS AS FOLLOWS: 

"ALL PROPERTY TAKEN OR DETAINED UNDER ANY REVENUE LAW OF THE UNITED
STATES SHALL NOT BE REPLEVIABLE, BUT SHALL BE DEEMED TO BE IN THE
CUSTODY OF THE LAW AND SUBJECT ONLY TO THE ORDERS AND DECREES OF THE
COURTS OF THE UNITED STATES HAVING JURISDICTION THEREOF." 

PETITIONER'S ARGUMENT IS THAT THIS SECTION PUTS PROPERTY SEIZED BY
REVENUE OFFICERS IN THE CUSTODY OF THE COURTS AND THAT IT NECESSARILY
FOLLOWS THAT A COURT HAVING SUCH CUSTODY HAS POWER TO DISPOSE OF THE
ISSUE OF OWNERSHIP SUMMARILY.  WE CANNOT AGREE WITH EITHER CONTENTION. 

PROPERTY SEIZED BY A REVENUE OFFICER FOR DELINQUENT TAXES IS LAWFULLY
HELD BY THAT OFFICER IN HIS ADMINISTRATIVE CAPACITY AND HE HAS BROAD
POWERS OVER SUCH PROPERTY.  SEE MURRAY V. HOBOKEN LAND & IMPROVEMENT
CO., 18 HOW.  272, AND PHILLIPS V. COMMISSIONER, 283 U.S. 589, 595
597.  THE HISTORY OF SEC. 2463 PLAINLY INDICATES A CONGRESSIONAL
PURPOSE TO PROTECT THAT PROPERTY IN THE REVENUE OFFICER'S CUSTODY AND
NOT TO TRANSFER THAT CUSTODY EITHER ACTUALLY OR FICTIONALLY INTO THE
CUSTODY OF THE FEDERAL COURTS.  THE SECTION WAS ORIGINALLY ADOPTED IN
1833 TO MEET A PARTICULAR NECESSITY BROUGHT ABOUT BY SOUTH CAROLINA'S
ADOPTION OF AN "ORDINANCE OF NULLIFICATION."  (FN8)  THAT STATE
ORDINANCE AUTHORIZED STATE OFFICIALS TO SEIZE PROPERTY THAT HAD BEEN
DISTRAINED OR LEVIED ON BY FEDERAL OFFICERS AND PROVIDED THAT SOUTH
CAROLINA STATE COURTS COULD ISSUE WRITS OF REPLEVIN TO TAKE SUCH
PROPERTY OUT OF THE HANDS OF FEDERAL OFFICIALS.  THE PLAIN OBJECT OF
THE 1833 ACT WAS TO COUNTERACT THIS STATE ORDINANCE AND IT THEREFORE
SPECIFICALLY PROVIDED THAT PROPERTY HELD UNDER UNITED STATES REVENUE
LAWS SHOULD NOT BE "REPLEVIABLE."  THIS STATUTE WENT ON TO SAY THAT
PROPERTY SO SEIZED SHOULD BE CONSIDERED AS "IN THE CUSTODY OF THE LAW,
AND SUBJECT ONLY TO THE ORDERS AND DECREES OF THE COURTS OF THE UNITED
STATES HAVING JURISDICTION THEREOF."  4 STAT. 633.  THIS LAW,
ORIGINALLY PASSED TO PROTECT THE CUSTODY OF PROPERTY SEIZED BY FEDERAL
REVENUE OFFICERS AGAINST MORE OR LESS SUMMARY STATE COURT ACTION,
SHOULD NOT NOW BE CONSTRUED AS JUSTIFYING SUMMARY PROCEEDINGS FOR
DETERMINING THE RIGHTS OF ANY LITIGANT TO PROPERTY SEIZED BY FEDERAL
OFFICERS.  IN PLACING THESE CASES EXCLUSIVELY WITHIN THE JURISDICTION
OF THE FEDERAL COURTS, CONGRESS DID NOT INDICATE ANY INTENTION TO RELAX
OR ALTER THE SAFEGUARDS OF PLENARY PROCEEDINGS GENERALLY APPLICABLE TO
PROPERTY CONTROVERSIES IN FEDERAL COURTS. 

EVEN IF SEC. 2463 COULD SOMEHOW BE CONSTRUED AS TRANSFERRING CUSTODY
OF PROPERTY SEIZED BY REVENUE OFFICERS INTO THE HANDS OF OFFICERS OF
THE FEDERAL COURTS IT WOULD BY NO MEANS FOLLOW THAT CASES AND
CONTROVERSIES INVOLVING OWNERSHIP OF THAT PROPERTY SHOULD BE TRIED IN
SUMMARY FASHION.  IT IS TRUE THAT COURTS HAVE SOMETIMES PASSED ON
OWNERSHIP OF PROPERTY IN THEIR CUSTODY WITHOUT A PLENARY PROCEEDING
WHERE, FOR ILLUSTRATION, SUCH A PROCEEDING WAS ANCILLARY TO A PENDING
ACTION OR WHERE PROPERTY WAS HELD IN THE CUSTODY OF COURT OFFICERS,
SUBJECT TO COURT ORDERS AND COURT DISCIPLINE.  SEE, E.G., GO-BART
IMPORTING CO. V. UNITED STATES, 282 U.S. 344, 355.  (FN9)  BUT HERE
THERE IS NO SITUATION KINDRED TO THAT IN GO-BART.  WHAT IS AT ISSUE
HERE IS AN ORDINARY DISPUTE OVER WHO OWNS THE RIGHT TO COLLECT A DEBT -
AN EVERYDAY, GARDEN-VARIETY CONTROVERSY THAT REGULAR, NORMAL COURT
PROCEEDINGS ARE DESIGNED TO TAKE CARE OF.  AS THE DISTRICT COURT
POINTED OUT IN ITS OPINION, THERE IS AMPLE AUTHORITY FOR PETITIONER TO
HAVE ITS CLAIM ADJUDICATED BY THE FEDERAL DISTRICT COURT BUT THAT
SHOULD BE DONE IN A PLENARY NOT IN A SUMMARY PROCEEDING.  AFFIRMED. 

FN1  I.R.C. OF 1954 SECS. 6331, 6332. 

FN2  NEW HAMPSHIRE FIRE INS. CO. V. SCANLON, 172 F. SUPP. 392.  THE
DISTRICT COURT RELIED ON TWO SECOND CIRCUIT CASES, GOLDMAN V. AMERICAN
DEALERS SERVICE, 135 F.2D 398, AND IN RE BEHRENS, 39 F.2D 561, HOLDING
THAT PARTIES FROM WHOM PROPERTY WAS SEIZED COULD NOT AVAIL THEMSELVES
OF SUMMARY PROCEEDINGS FOR ITS RECOVERY. 

FN3  NEW HAMPSHIRE FIRE INS. CO. V. SCANLON, 267 F.2D 941. 

FN4  SEE CENTRAL REPUBLIC BANK & TRUST CO. V. CALDWELL, 58 F.2D 721,
731-732, FROM WHICH PETITIONER'S BRIEF QUOTED THE FOLLOWING: 

"THE MAIN CHARACTERISTIC DIFFERENCES BETWEEN A SUMMARY PROCEEDING AND
A PLENARY SUIT ARE: THE FORMER IS BASED UPON PETITION, AND PROCEEDS
WITHOUT FORMAL PLEADINGS; THE LATTER PROCEEDS UPON FORMAL PLEADINGS. 
IN THE FORMER, THE NECESSARY PARTIES ARE CITED IN BY ORDER TO SHOW
CAUSE; IN THE LATTER, FORMAL SUMMONS BRINGS IN THE PARTIES OTHER THAN
THE PLAINTIFF.  IN THE FORMER, SHORT TIME NOTICE OF HEARING IS FIXED BY
THE COURT; IN THE LATTER, TIME FOR PLEADING AND HEARING IS FIXED BY
STATUTE OR BY RULE OF COURT.  IN THE FORMER, THE HEARING IS QUITE
GENERALLY UPON AFFIDAVITS; IN THE LATTER, EXAMINATION OF WITNESSES IS
THE USUAL METHOD.  IN THE FORMER, THE HEARING IS SOMETIMES EX PARTE; IN
THE LATTER, A FULL HEARING IS HAD." 

FN5  SEE, E.G., UNITED STATES V. CASINO, 286 F. 976; CLARKE V. CITY
OF EVANSVILLE, 75 IND.  APP. 500, 505, 131 N.E. 82, 84 ("NO CAUSE CAN
BE TRIED SUMMARILY (OTHERWISE THAN IN DUE COURSE), EXCEPT PERHAPS CASES
OF CONTEMPT OF COURT; FOR OUR CODE, AS WELL AS THE COMMON LAW, IS A
STRANGER TO SUCH A MODE OF TRIAL"); BILLINGS HOTEL CO. V. CITY OF ENID,
53 OKLA. 1, 5, 154 P. 557, 558.  CF. WESTERN & ATLANTIC R. CO. V.
ATLANTA, 113 GA. 537, 38 S.E. 996; STATE V. HOWSE, 134 TENN. 67, 183
S.W. 510. 

FN6  FOR EXAMPLES OF SUCH AUTHORIZATION, SEE SECS. 67A(4) & F(4) OF
THE BANKRUPTCY ACT, 11 U.S.C. SECS. 107(A)(4) & (F)(4).  SEE ALSO SEC.
2A(7), 11 U.S.C. SEC. 11(A)(7); THOMPSON V. MAGNOLIA CO., 309 U.S. 478,
481; HARRIS V. BRUNDAGE CO., 305 U.S. 160, 162-164. 

FN7  SEE JUDGE LEARNED HAND'S OPINION IN UNITED STATES V. CASINO, 286
F. 976, AT 978-979: "IT IS CLEAR THAT THE OWNER OF PROPERTY UNLAWFULLY
SEIZED HAS WITHOUT STATUTE NO SUMMARY REMEDY FOR A RETURN OF HIS
PROPERTY  ...  .  HE MAY HAVE TRESPASS, OR, IF THERE BE NO STATUTE TO
THE CONTRARY, REPLEVIN; BUT, JUST AS IN OUR LAW NO PUBLIC OFFICER HAS
ANY OFFICIAL PROTECTION, SO NO INDIVIDUAL HAS EXCEPTIONAL REMEDIES FOR
ABUSE OF POWER BY SUCH OFFICERS.  WE KNOW NO 'ADMINISTRATIVE LAW' LIKE
THAT OF THE CIVILIANS." 

SEE ALSO, FOR EXAMPLE, UNITED STATES V. GOWEN, 40 F.2D 593, 598;
WEINSTEIN V. ATTORNEY GENERAL, 271 F. 673; UNITED STATES V. FARRINGTON,
17 F. SUPP. 702; IN RE ALLEN, 1 F.2D 1020; SIMS V. STUART, 291 F. 707;
LEWIS V. MCCARTHY, 274 F. 496; UNITED STATES V. HEE, 219 F. 1019; IN RE
CHIN K. SHUE, 199 F. 282.  CF. TAUBEL-SCOTT-KITZMILLER CO. V. FOX, 264
U.S. 426, 431; APPLYBE V. UNITED STATES, 32 F.2D 873, OPINION DENYING
REHEARING, 33 F.2D 897.  AND SEE THE SECOND CIRCUIT CASES CITED IN NOTE
2, SUPRA. 

FN8  "AN ORDINANCE, TO NULLIFY CERTAIN ACTS OF THE CONGRESS OF THE
UNITED STATES, PURPORTING TO BE LAWS, LAYING DUTIES AND IMPOSTS ON THE
IMPORTATION OF FOREIGN COMMODITIES."  1 STATUTES AT LARGE OF SOUTH
CAROLINA 329 FF. 

FN9  SEE ALSO COGEN V. UNITED STATES, 278 U.S. 221, 225 (MOTION
PROCEDURE UPHELD AS ANCILLARY TO CRIMINAL ACTION); WEEKS V. UNITED
STATES, 232 U.S. 383, 398 (PROPERTY, ALLEGEDLY UNLAWFULLY SEIZED, IN
POSSESSION OF AN "OFFICER OF THE COURT"); UNITED STATES V. MCHIE, 194
F. 894, 898 (PROPERTY SEIZED UNDER PURPORTED AUTHORITY OF THE COURT'S
OWN PROCESS, A SEARCH WARRANT). 

THOSE CASES THAT HAVE REQUIRED THE GOVERNMENT TO BRING A PLENARY
ACTION IN FORFEITURE PROCEEDINGS PROMPTLY AFTER SEIZING PROPERTY, ON
PAIN OF AN ORDER TO ABANDON THE SEIZURE AND RETURN THE PROPERTY, ARE
PLAINLY INAPPLICABLE HERE.  SEE, E.G., GOLDMAN V. AMERICAN DEALERS
SERVICE, 135 F.2D 398; CHURCH V. GOODNOUGH, 14 F.2D 432.  IN ALL THESE
CASES, STEMMING FROM A DICTUM IN SLOCUM V. MAYBERRY, 2 WHEAT.  1, 9-10,
THE THREAT OF SUMMARY ORDER WAS INVOKED UNDER THE EQUITABLE POWERS OF
THE COURTS, NOT TO ADJUDICATE CLAIMS TO THE PROPERTY BUT TO COMPEL THE
GOVERNMENT TO BRING AN ORDINARY CIVIL ACTION, THE ONLY PROCEEDING
AUTHORIZED IN THOSE CASES, WITHOUT UNREASONABLE DELAY. 
..END :











LOCAL LODGE NO. 1424, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO
V. NATIONAL LABOR RELATIONS BOARD 362 U.S. 411 


NO. 44.  ARGUED JANUARY 11, 1960 - DECIDED APRIL 25, 1960 - 105 U.S.
APP. D.C. 102, 264 F.2D 575, REVERSED. 


AT A TIME WHEN THE UNION REPRESENTED LESS THAN A MAJORITY OF THE
EMPLOYEES, A COMPANY AND A UNION ENTERED INTO A COLLECTIVE BARGAINING
AGREEMENT CONTAINING A "UNION SECURITY" CLAUSE, BY WHICH ALL EMPLOYEES
WERE REQUIRED, AFTER A 45-DAY GRACE PERIOD, TO BECOME AND REMAIN
MEMBERS OF THE UNION AS A CONDITION OF EMPLOYMENT.  MORE THAN SIX
MONTHS LATER, THE GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD
FILED AND SERVED ON THE COMPANY AND THE UNION COMPLAINTS CHARGING THAT
CONTINUED ENFORCEMENT OF THE AGREEMENT (WITHIN THE PRECEDING SIX
MONTHS) WAS AN UNFAIR LABOR PRACTICE IN VIOLATION OF THE NATIONAL LABOR
RELATIONS ACT.  HELD:  THE COMPLAINTS WERE BARRED BY THE SIX-MONTH
STATUTE OF LIMITATIONS CONTAINED IN SEC. 10(B) OF THE ACT, AS AMENDED. 
PP. 411-429. 

LOCAL LODGE NO. 1424, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO,
ET AL. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION WE DECIDE IN THIS CASE IS WHETHER UNFAIR LABOR PRACTICE
COMPLAINTS, WHOSE CHARGES AGAINST THESE PETITIONERS WERE SUSTAINED BY
THE NATIONAL LABOR RELATIONS BOARD, WERE BARRED BY THE SIX-MONTH
STATUTE OF LIMITATIONS CONTAINED IN SEC. 10(B) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, 61 STAT. 146, 29 U.S.C. SEC. 160(B).  THAT

"PROVIDED  ...  NO COMPLAINT SHALL ISSUE BASED UPON ANY UNFAIR LABOR
PRACTICE OCCURRING MORE THAN SIX MONTHS PRIOR TO THE FILING OF THE
CHARGE WITH THE BOARD AND THE SERVICE OF A COPY THEREOF UPON THE PERSON
AGAINST WHOM SUCH CHARGE IS MADE  ...  ." 

ON AUGUST 10, 1954, PETITIONERS BRYAN MANUFACTURING COMPANY AND THE
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, ENTERED INTO A COLLECTIVE
BARGAINING AGREEMENT FOR A UNIT OF BRYAN'S EMPLOYEES.  THE AGREEMENT,
AS LATER SUPPLEMENTED IN CERTAIN RESPECTS NOT MATERIAL TO THIS
LITIGATION, CONTAINED THE CONVENTIONAL PROVISIONS, OF WHICH TWO ARE
RELEVANT HERE:  THE "RECOGNITION" CLAUSE, BY WHICH THE UNION WAS
RECOGNIZED AS "THE SOLE AND EXCLUSIVE BARGAINING AGENCY FOR ALL
EMPLOYEES" IN THE UNIT; AND THE "UNION SECURITY" CLAUSE, BY WHICH ALL
EMPLOYEES WERE REQUIRED, SUBJECT TO A 45-DAY GRACE PERIOD, TO BECOME
AND REMAIN MEMBERS OF THE UNION.  ON AUGUST 30, 1955, A NEW AGREEMENT
WAS ENTERED INTO, WITH BRYAN, THE UNION, AND PETITIONER LOCAL LODGE NO.
1424, IAM, AS SIGNATORIES, REPLACING THE OLD AGREEMENT AND APPLYING
ADDITIONALLY TO EMPLOYEES AT A NEWLY OPENED PLANT AS WELL AS TO THOSE
COVERED BY THE ORIGINAL AGREEMENT. 

WHEN THE ORIGINAL AGREEMENT WAS EXECUTED ON AUGUST 10, 1954, THE
UNION DID NOT REPRESENT A MAJORITY OF THE EMPLOYEES COVERED BY IT.
(FN1)  UNDER SECS. 7 AND 8 OF THE ACT (FN2) THE BOARD HAS EVOLVED THE
PRINCIPLE, NOT DRAWN IN QUESTION HERE, THAT IT IS AN UNFAIR LABOR
PRACTICE FOR AN EMPLOYER AND A LABOR ORGANIZATION TO ENTER INTO A
COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINS A UNION SECURITY CLAUSE,
IF AT THE TIME OF ORIGINAL EXECUTION THE UNION DOES NOT REPRESENT A
MAJORITY OF THE EMPLOYEES IN THE UNIT.  (FN3)  THE MAINTAINING OF SUCH
AN AGREEMENT IN FORCE IS A CONTINUING VIOLATION OF THE ACT, AND THE
"MAJORITY STATUS" OF THE UNION AT ANY SUBSEQUENT DATE - INCLUDING THE
DATE OF EXECUTION OF ANY RENEWALS OF THE ORIGINAL AGREEMENT - IS
IMMATERIAL, FOR IT IS PRESUMED THAT SUBSEQUENT ACQUISITION OF A
MAJORITY STATUS IS ATTRIBUTABLE TO THE EARLIER UNLAWFUL ASSISTANCE
RECEIVED FROM THE ORIGINAL AGREEMENT.  (FN4) 

IN JUNE AND AUGUST 1955, 10 MONTHS AND 12 MONTHS AFTER THE EXECUTION
OF THE ORIGINAL AGREEMENT, CHARGES WERE FILED WITH THE BOARD AND SERVED
UPON THE PETITIONERS, ALLEGING THE UNION'S LACK OF MAJORITY STATUS AT
THE TIME OF EXECUTION AND THE CONSEQUENT ILLEGALITY OF THE CONTINUED
ENFORCEMENT OF THE AGREEMENT.  COMPLAINTS WERE THEREAFTER ISSUED BY THE
BOARD'S GENERAL COUNSEL AGAINST THE UNION AND THE COMPANY.  PETITIONERS
CONTENDED BEFORE THE BOARD THAT THE COMPLAINTS WERE BARRED BY THE
LIMITATIONS PROVISO OF SEC. 10(B), SET FORTH ABOVE.  THE BOARD, TWO
MEMBERS DISSENTING, HELD THAT THE COMPLAINTS WERE NOT BARRED BY
LIMITATIONS, 119 N.L.R.B. 502, AND THE COURT OF APPEALS AFFIRMED, ONE
JUDGE DISSENTING.  105 U.S. APP.  D.C. 102, 264 F.2D 575.  WE GRANTED
CERTIORARI, 360 U.S. 916, BECAUSE OF THE IMPORTANCE OF THE QUESTION IN
THE PROPER ADMINISTRATION OF THE NATIONAL LABOR RELATIONS ACT.  FOR
REASONS GIVEN IN THIS OPINION WE HOLD THAT THE COMPLAINTS AGAINST THESE
PETITIONERS ARE BARRED BY TIME.  (FN5) 

WE FIRST NOTE THE OPPOSING CONTENTIONS OF THE PARTIES.  THE BOARD
STARTS WITH THE PREMISE THAT A COLLECTIVE BARGAINING AGREEMENT WHICH
CONTAINS A UNION SECURITY CLAUSE VALID ON ITS FACE, BUT WHICH WAS
ENTERED INTO WHEN THE UNION DID NOT HAVE A MAJORITY STATUS, GIVES RISE
TO TWO INDEPENDENT UNFAIR LABOR PRACTICES, ONE BEING THE EXECUTION OF
THE AGREEMENT, THE OTHER ARISING FROM ITS CONTINUED ENFORCEMENT. 
CONCEDING THAT A COMPLAINT PREDICATED ON THE EXECUTION OF THE AGREEMENT
HERE CHALLENGED WAS BARRED BY LIMITATIONS, THE BOARD CONTENDS THAT ITS
COMPLAINT WAS NONETHELESS TIMELY SINCE IT WAS "BASED UPON" THE PARTIES'
CONTINUED ENFORCEMENT, WITHIN THE PERIOD OF LIMITATIONS, OF THE UNION
SECURITY CLAUSE.  IT IS THEN SAID THAT EVEN THOUGH THE FORMER WAS
ITSELF TIME-BARRED, THE UNLAWFUL EXECUTION OF THE AGREEMENT WAS
NEVERTHELESS "RELEVANT IN DETERMINING WHETHER CONDUCT WITHIN THE 6
MONTH PERIOD WAS UNLAWFUL," 119 N.L.R.B., AT 504; AND THAT EVIDENCE AS
TO IT WAS ADMISSIBLE BECAUSE SEC. 10(B) IS A STATUTE OF LIMITATIONS,
AND NOT A RULE OF EVIDENCE. 

ON THE OTHER HAND, PETITIONERS CONTEND THAT, STANDING ALONE, THE
UNION SECURITY CLAUSE AND ITS ENFORCEMENT WERE WHOLLY INNOCENT; THAT
THEY WERE TAINTED ONLY BY VIRTUE OF THE ORIGINAL UNLAWFUL EXECUTION OF
THE AGREEMENT; AND THAT SINCE A COMPLAINT BASED UPON THAT UNFAIR LABOR
PRACTICE WAS BARRED BY LIMITATIONS, THAT EVENT ITSELF COULD NOT BE
UTILIZED TO INFUSE WITH ILLEGALITY THE OTHERWISE LEGAL UNION SECURITY
CLAUSE OR ITS ENFORCEMENT.  THEY SAY, IN SHORT, THAT TO APPLY IN THIS
SITUATION THE DOCTRINE THAT SEC. 10(B) IS A STATUTE OF LIMITATIONS, AND
NOT A RULE OF EVIDENCE, IS TO CIRCUMVENT THE PURPOSES OF THE SECTION,
AND THAT ACCEPTANCE OF THE BOARD'S POSITION WOULD MEAN THAT THE STATUTE
OF LIMITATIONS WOULD NEVER RUN IN A CASE OF THIS KIND.  WE THINK
PETITIONERS' POSITION RESPRESENTS THE CORRECT VIEW OF THE MATTER. 

IT IS DOUBTLESS TRUE THAT SEC. 10(B) DOES NOT PREVENT ALL USE OF
EVIDENCE RELATING TO EVENTS TRANSPIRING MORE THAN SIX MONTHS BEFORE THE
FILING AND SERVICE OF AN UNFAIR LABOR PRACTICE CHARGE.  HOWEVER, IN
APPLYING RULES OF EVIDENCE AS TO THE ADMISSIBILITY OF PAST EVENTS, DUE
REGARD FOR THE PURPOSES OF SEC. 10(B) REQUIRES THAT TWO DIFFERENT KINDS
OF SITUATIONS BE DISTINGUISHED.  THE FIRST IS ONE WHERE OCCURRENCES
WITHIN THE SIX-MONTH LIMITATIONS PERIOD IN AND OF THEMSELVES MAY
CONSTITUTE, AS A SUBSTANTIVE MATTER, UNFAIR LABOR PRACTICES.  THERE,
EARLIER EVENTS MAY BE UTILIZED TO SHED LIGHT ON THE TRUE CHARACTER OF
MATTERS OCCURRING WITHIN THE LIMITATIONS PERIOD; AND FOR THAT PURPOSE
SEC. 10(B) ORDINARILY DOES NOT BAR SUCH EVIDENTIARY USE OF ANTERIOR
EVENTS.  (FN6)  THE SECOND SITUATION IS THAT WHERE CONDUCT OCCURRING
WITHIN THE LIMITATIONS PERIOD CAN BE CHARGED TO BE AN UNFAIR LABOR
PRACTICE ONLY THROUGH RELIANCE ON AN EARLIER UNFAIR LABOR PRACTICE. 
THERE THE USE OF THE EARLIER UNFAIR LABOR PRACTICE IS NOT MERELY
"EVIDENTIARY," SINCE IT DOES NOT SIMPLY LAY BARE A PUTATIVE CURRENT
UNFAIR LABOR PRACTICE.  RATHER, IT SERVES TO CLOAK WITH ILLEGALITY THAT
WHICH WAS OTHERWISE LAWFUL.  AND WHERE A COMPLAINT BASED UPON THAT
EARLIER EVENT IS TIME-BARRED, TO PERMIT THE EVENT ITSELF TO BE SO USED
IN EFFECT RESULTS IN REVIVING A LEGALLY DEFUNCT UNFAIR LABOR PRACTICE. 

THE SITUATION BEFORE US IS OF THIS LATTER VARIETY, FOR THE ENTIRE
FOUNDATION OF THE UNFAIR LABOR PRACTICE CHARGED WAS THE UNION'S TIME
BARRED LACK OF MAJORITY STATUS WHEN THE ORIGINAL COLLECTIVE BARGAINING
AGREEMENT WAS SIGNED.  IN THE ABSENCE OF THAT FACT ENFORCEMENT OF THIS
OTHERWISE VALID UNION SECURITY CLAUSE WAS WHOLLY BENIGN.  (FN7)  THE
TRIAL EXAMINER, WHOSE FINDINGS WERE ADOPTED BY THE BOARD, OBSERVED: 

"THE GENERAL COUNSEL CONCEDES THAT THE 6-MONTH LIMITATION OF SECTION
10(B) OF THE ACT PRECLUDES CURRENTLY FINDING THE EXECUTION (FN8) OF THE
1954 AGREEMENT TO BE AN UNFAIR LABOR PRACTICE, AND ALSO PRECLUDES
CURRENTLY FINDING ITS ENFORCEMENT TO BE AN UNFAIR LABOR PRACTICE  ...
AT ANY TIME PRIOR TO THE  ...  PERIODS BEGINNING 6 MONTHS PRIOR TO THE
...  CHARGES  ...  .  HOWEVER, THIS CONCESSION IN NO WAY DETRACTS FROM
THE CRUCIAL NATURE OF THE EARLIER EVENTS, BECAUSE AT THE CORE OF THE
GENERAL COUNSEL'S CONTENTIONS AS TO ALL OF THE UNFAIR LABOR PRACTICES
IS HIS FUNDAMENTAL POSITION THAT, BECAUSE OF THE CIRCUMSTANCES
PREVAILING WHEN MADE, THE ORIGINAL UNION-SECURITY AGREEMENT OF 1954 HAS
NEVER BEEN VALID OR LEGAL, SINCE IT HAS NEVER MET CERTAIN OVERRIDING
REQUIREMENTS OF SECTION 8(A)(3) OF THE ACT."  119 N.L.R.B., AT 530. 
(FN9) 

WHERE, AS HERE, A COLLECTIVE BARGAINING AGREEMENT AND ITS ENFORCEMENT
ARE BOTH PERFECTLY LAWFUL ON THE FACE OF THINGS, AND AN UNFAIR LABOR
PRACTICE CANNOT BE MADE OUT EXCEPT BY RELIANCE ON THE FACT OF THE
AGREEMENT'S ORIGINAL UNLAWFUL EXECUTION, AN EVENT WHICH, BECAUSE OF
LIMITATIONS, CANNOT ITSELF BE MADE THE SUBJECT OF AN UNFAIR LABOR
PRACTICE COMPLAINT, WE THINK THAT PERMITTING RESORT TO THE PRINCIPLE
THAT SEC. 10(B) IS NOT A RULE OF EVIDENCE, IN ORDER TO CONVERT WHAT IS
OTHERWISE LEGAL INTO SOMETHING ILLEGAL, WOULD VITIATE THE POLICIES
UNDERLYING THAT SECTION.  THESE POLICIES ARE TO BAR LITIGATION OVER
PAST EVENTS "AFTER RECORDS HAVE BEEN DESTROYED, WITNESSES HAVE GONE
ELSEWHERE, AND RECOLLECTIONS OF THE EVENTS IN QUESTION HAVE BECOME DIM
AND CONFUSED," H.R. REP. NO. 245, 80TH CONG., 1ST SESS., P. 40, (FN10)
AND OF COURSE TO STABILIZE EXISTING BARGAINING RELATIONSHIPS. 

OUR VIEW OF THE MATTER IS LENT SUPPORT BY THE ATTITUDE OF THE BOARD
ITSELF, WHOSE PREVIOUS DECISIONS, ALBEIT NOT ALWAYS WITH UNANIMITY
AMONG ITS MEMBERS OR EVEN PERHAPS WITH PERFECT CONSISTENCY, HAVE
RECOGNIZED THAT EVIDENTIARY RULES AS TO PAST EVENTS MUST BE REGARDED
DIFFERENTLY IN THE TWO SITUATIONS WE HAVE ALREADY DEPICTED.  COMPARE,
E.G., POTLATCH FORESTS, INC., 87 N.L.R.B. 1193, WHERE EVIDENCE AS TO
EVENTS DURING THE BARRED PERIOD WAS USED TO ILLUMINATE CURRENT CONDUCT
CLAIMED IN ITSELF TO BE AN UNFAIR LABOR PRACTICE, (FN11) WITH BOWEN
PRODUCTS CORP., 113 N.L.R.B. 731, AND GREENVILLE COTTON OIL CO., 92
N.L.R.B. 1033, AFF'D SUB NOM. AMERICAN FEDERATION OF GRAIN MILLERS,
A.F.L. V. LABOR BOARD, 197 F.2D 451, WHERE THE GRAVAMEN OF THE UNFAIR
LABOR PRACTICE COMPLAINED OF LAY IN A FACT OR EVENT OCCURRING DURING
THE BARRED PERIOD.  (FN12) 

INDEED, SOME BOARD CASES HAVE GONE EVEN FURTHER AND HELD SEC. 10(B) A
BAR IN CIRCUMSTANCES WHEN, ALTHOUGH NONE OF THE MATERIAL ELEMENTS OF
THE CHARGE IN A TIMELY COMPLAINT NEED NECESSARILY BE PROVED THROUGH
REFERENCE TO THE BARRED PERIOD - SO THAT UTILIZATION OF EVIDENCE FROM
THAT PERIOD IS OSTENSIBLY ONLY FOR THE PURPOSE OF GIVING COLOR TO WHAT
IS INVOLVED IN THE COMPLAINT - YET THE EVIDENCE IN FACT MARSHALLED FROM
WITHIN THE SIX-MONTH PERIOD IS NOT SUBSTANTIAL, AND THE MERIT OF THE
ALLEGATIONS IN THE COMPLAINT IS SHOWN LARGELY BY RELIANCE ON THE
EARLIER EVENTS.  SEE, E.G., NEWS PRINTING CO., 116 N.L.R.B. 210, 212;
UNIVERSAL OIL PRODUCTS CO., 108 N.L.R.B. 68; TENNESSEE KNITTING MILLS,
INC., 88 N.L.R.B. 1103.  (FN13)  HOWEVER, WE EXPRESS NO VIEW ON THE
PROBLEM RAISED BY SUCH CASES, FOR HERE WE NEED NOT GO BEYOND SAYING
THAT A FINDING OF VIOLATION WHICH IS INESCAPABLY GROUNDED ON EVENTS
PREDATING THE LIMITATIONS PERIOD IS DIRECTLY AT ODDS WITH THE PURPOSES
OF THE SEC. 10(B) PROVISO.  (FN14) 

THE APPLICABILITY OF THESE PRINCIPLES CANNOT BE AVOIDED HERE BY
INVOKING THE DOCTRINE OF CONTINUING VIOLATION.  IT MAY BE CONCEDED THAT
THE CONTINUED ENFORCEMENT, AS WELL AS THE EXECUTION, OF THIS COLLECTIVE
BARGAINING AGREEMENT CONSTITUTES AN UNFAIR LABOR PRACTICE, AND THAT
THESE ARE TWO LOGICALLY SEPARATE VIOLATIONS, INDEPENDENT IN THE SENSE
THAT THEY CAN BE DESCRIBED IN DISCRETE TERMS.  NEVERTHELESS, THE VICE
IN THE ENFORCEMENT OF THIS AGREEMENT IS MANIFESTLY NOT INDEPENDENT OF
THE LEGALITY OF ITS EXECUTION, AS WOULD BE THE CASE, FOR EXAMPLE, WITH
AN AGREEMENT INVALID ON ITS FACE OR WITH ONE VALIDLY EXECUTED, BUT
UNLAWFULLY ADMINISTERED.  AS THE DISSENTING BOARD MEMBERS IN THIS CASE
RECOGNIZED, IN DEALING WITH AN AGREEMENT CLAIMED TO BE VOID BY REASON
OF THE UNION'S LACK OF MAJORITY STATUS AT THE TIME OF ITS EXECUTION: 

"  ...  THE CIRCUMSTANCES WHICH CAUSE THE AGREEMENT TO BE INVALID
EXISTED ONLY AT THE POINT IN TIME IN THE PAST WHEN THE AGREEMENT WAS
EXECUTED AND ARE NOT THEREAFTER REPEATED.  FOR THIS REASON, THEREFORE,
THE CONTINUING INVALIDITY OF THE AGREEMENT IS DIRECTLY RELATED TO AND
IS BASED SOLELY ON ITS INITIAL INVALIDITY, AND HAS NO CONTINUING
INDEPENDENT BASIS."  119 N.L.R.B., AT 516. 

IN ANY REAL SENSE, THEN, THE COMPLAINTS IN THIS CASE ARE "BASED UPON"
THE UNLAWFUL EXECUTION OF THE AGREEMENT, FOR ITS ENFORCEMENT, THOUGH
CONTINUING, IS A CONTINUING VIOLATION SOLELY BY REASON OF CIRCUMSTANCES
EXISTING ONLY AT THE DATE OF EXECUTION.  TO JUSTIFY RELIANCE ON THOSE
CIRCUMSTANCES ON THE GROUND THAT THE MAINTENANCE IN EFFECT OF THE
AGREEMENT IS A CONTINUING VIOLATION IS TO SUPPORT A LIFTING OF THE
LIMITATIONS BAR BY A CHARACTERIZATION WHICH BECOMES APT ONLY WHEN THAT
BAR HAS ALREADY BEEN LIFTED.  PUT ANOTHER WAY, IF THE SEC. 10(B)
PROVISO IS TO BE GIVEN EFFECT, THE ENFORCEMENT, AS DISTINGUISHED FROM
THE EXECUTION, OF SUCH AN AGREEMENT AS THIS CONSTITUTES A SUABLE UNFAIR
LABOR PRACTICE ONLY FOR SIX MONTHS FOLLOWING THE MAKING OF THE
AGREEMENT.  (FN15) 

THE BOARD'S RULING IS FURTHER SOUGHT TO BE SUPPORTED ON THE GROUND
THAT IT DID NOT REST ON A FORMAL FINDING THAT THE EXECUTION OF THE 1954
AGREEMENT CONSTITUTED AN UNFAIR LABOR PRACTICE.  THE COURT OF APPEALS,
WHILE STATING THAT THE BOARD COULD NOT DRAW "ANY LEGAL CONCLUSION WITH
REGARD TO EVENTS OUTSIDE THE STATUTORY PERIOD," DISTINGUISHED THE
DECISION HERE AS RESTING ON THE "MERE EXISTENCE (OF THE FACTS
SURROUNDING THE MAKING OF THE 1954 CONTRACT) RATHER THAN ON ASCRIBING
LEGAL SIGNIFICANCE TO THOSE FACTS STANDING ALONE."  105 U.S. APP. D.C.,
AT 108, 264 F.2D, AT 581.  THIS DISTINCTION SACRIFICES THE POLICY OF
THE ACT TO PROCEDURAL FORMALITIES.  IF, AS IS NOT DISPUTABLE, THE SEC.
10(B) LIMITATION WAS PROMPTED BY "COMPLAINT THAT PEOPLE WERE BEING
BROUGHT TO BOOK UPON STALE CHARGES," LABOR BOARD V. PENNWOVEN, INC.,
194 F.2D 521, 524, IT IS A PARTICULAR USE OF THE PRELIMITATIONS FACTS
OR CONDUCT AT WHICH THE SECTION IS AIMED, AND IT CAN HARDLY BE THOUGHT
RELEVANT THAT THE PROSCRIBED USE HAS NOT BEEN LABELED AS SUCH.  THE
APPLICABILITY OF THE POLICY OF SEC. 10(B) IN THE GRAIN MILLERS CASE,
SUPRA, WHERE IN THE PARTICULAR CIRCUMSTANCES OF THAT CASE, AND NOT
BECAUSE OF ANYTHING ARISING FROM SEC. 10(B), THE CHALLENGED ACTS WITHIN
THE LIMITATIONS PERIOD COULD NOT BE CONDEMNED AS UNLAWFUL WITHOUT AN
EXPRESS DECLARATION THAT EARLIER CONDUCT CONSTITUTED AN UNFAIR LABOR
PRACTICE (SEE NOTE 12, ANTE), WAS NOT GREATER THAN IT IS HERE, WHERE
ALTHOUGH THERE WAS NO "FINDING" THAT EXECUTION OF THE AGREEMENT
CONSTITUTED AN UNFAIR LABOR PRACTICE, IT IS MANIFEST THAT WERE THAT NOT
IN FACT THE CASE ENFORCEMENT OF THE AGREEMENT WOULD CARRY NO TAINT OF
ILLEGALITY.   THE AVAILABILITY OF THE REPOSE SOUGHT TO BE ASSURED BY
SEC. 10(B) CANNOT TURN ON THE VAGARIES OF ANY SUCH HYPERTECHNICAL
DISTINCTIONS, BEARING NO RELATION TO THE PURPOSE OF THE LEGISLATION. 

IT IS APPARENTLY NOT DISPUTED THAT THE BOARD'S POSITION WOULD
WITHDRAW VIRTUALLY ALL LIMITATIONS PROTECTION FROM COLLECTIVE
BARGAINING AGREEMENTS ATTACKED ON THE GROUND ASSERTED HERE.  FOR, ONCE
THE PRINCIPLE ON WHICH THE DECISION BELOW RESTS IS ACCEPTED, SO LONG AS
THE CONTRACT - OR ANY RENEWAL THEREOF - IS STILL IN EFFECT, THE SIX
MONTH PERIOD DOES NOT EVEN BEGIN TO RUN.   CF. BOWEN PRODUCTS CORP.,
SUPRA, AT 732.  IN LIVELY PHOTOS, INC., 123 N.L.R.B.  1054, THE BOARD
UNHESITATINGLY APPLIED THE DOCTRINE OF THE CASE AT BAR TO AN ATTACK
UPON AN AGREEMENT EXECUTED MORE THAN THREE AND ONE-HALF YEARS PRIOR TO
THE FILING OF THE CHARGE.  THE CEASE-AND-DESIST ORDER ENTERED IN THAT
CASE DIRECTED THE SEVERANCE OF A BARGAINING RELATIONSHIP WHICH HAD BEEN
INITIATED FIVE YEARS EARLIER.  A DOCTRINE WHICH DOES SUCH DISSERVICE TO
STABILITY OF BARGAINING RELATIONSHIPS COULD BE UPHELD, IN LIGHT OF THE
LANGUAGE AND EVIDENT PURPOSE OF SEC. 10(B), ONLY BY A CONVINCING
SHOWING THAT CONGRESS DID NOT INTEND THAT PROVISION TO BE APPLIED SO AS
TO BAR ATTACKS ON COLLECTIVE AGREEMENTS WITH UNIONS LACKING MAJORITY
STATUS UNLESS BROUGHT WITHIN SIX MONTHS OF THEIR EXECUTION.  FAR FROM
PROVIDING SUCH A SHOWING, THE LEGISLATIVE HISTORY CONTAINS AFFIRMATIVE
EVIDENCE THAT CONGRESS WAS SPECIFICALLY ADVERTENT TO THE PROBLEM OF
AGREEMENTS WITH MINORITY UNIONS, HAD PREVIOUSLY BEEN AT PAINS TO
PROTECT SUCH AGREEMENTS FROM BELATED ATTACK, AND MANIFESTED AN
INTENTION, IN ENACTING SEC. 10(B), NOT TO WITHDRAW THAT PROTECTION. 

FOUR YEARS PRIOR TO THE ENACTMENT OF THE TAFT-HARTLEY AMENDMENTS, OF
WHICH THE SEC. 10(B) LIMITATIONS PROVISO WAS ONE, CONGRESS BARRED THE
BOARD FROM PROCEEDING, UNDER CERTAIN CONDITIONS NOT HERE RELEVANT, IN
CASES "ARISING OVER AN AGREEMENT BETWEEN MANAGEMENT AND LABOR WHICH HAS
BEEN IN EXISTENCE FOR THREE MONTHS OR LONGER WITHOUT COMPLAINT BEING
FILED."  NATIONAL LABOR RELATIONS BOARD APPROPRIATION ACT, 1944, 57
STAT. 515.  THIS LEGISLATION WAS ENACTED WITH SPECIFIC REFERENCE TO
AGREEMENTS WITH MINORITY UNIONS, (FN16) AND WAS RE-ENACTED IN EACH
SUCCEEDING SESSION THROUGH 1947.  (FN17)  AT THE TIME THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE REPORTED S. 1126 (THE SENATE
VERSION OF THE PROPOSED LEGISLATION ENACTED AS THE LABOR MANAGEMENT
RELATIONS ACT, 1947), A RIDER TO THE APPROPRIATIONS BILL FOR THE FISCAL
YEAR 1948 (H.R. 2700, 80TH CONG., 1ST SESS.) WAS PENDING BEFORE THE
SENATE APPROPRIATIONS COMMITTEE, HAVING BEEN PREVIOUSLY REPORTED BY THE
HOUSE APPROPRIATIONS COMMITTEE IN LANGUAGE IDENTICAL WITH THAT OF ITS
PREDECESSORS.  THE LABOR COMMITTEE'S DISCUSSION OF THE PROPOSED SEC.
10(B) AMENDMENT IS ILLUMINATING: 

"THE PRINCIPAL SUBSTANTIVE CHANGE IN THIS SECTION IS A PROVISION FOR
A 6-MONTH PERIOD OF LIMITATIONS UPON THE FILING OF CHARGES.  THE BOARD
ITSELF BY ADOPTING A DOCTRINE OF LACHES HAS TO SOME EXTENT DISCOURAGED
DILATORY FILING OF CHARGES, AND A RIDER TO THE CURRENT APPROPRIATIONS
BILL (WHICH IF THIS AMENDMENT WAS ADOPTED WOULD NO LONGER BE NECESSARY)
CONTAINS A 3-MONTH PERIOD OF LIMITATIONS WITH RESPECT TO CERTAIN KINDS
OF UNFAIR LABOR PRACTICES."  S. REP. NO. 105, 80TH CONG., 1ST SESS., P.
26. 

THIS LANGUAGE CANNOT BE SQUARED WITH AN INTERPRETATION OF SEC. 10(B)
WHICH WOULD ASCRIBE TO CONGRESS, IN ENACTING FOR THE FIRST TIME A
GENERAL LIMITATIONS PROVISION, A PURPOSE TO ELIMINATE THE THEN-EXISTING
ALL-EMBRACING LIMITATION SPECIFICALLY APPLICABLE TO AGREEMENTS WITH
MINORITY UNIONS.  (FN18) 

IN SUSTAINING THE BOARD'S POSITION, THE COURT OF APPEALS ALSO RELIED
ON THE PUBLIC CHARACTER OF THE RIGHT SOUGHT TO BE VINDICATED BY THE
BOARD, AND THE LIMITED SCOPE OF JUDICIAL REVIEW OF BOARD
DETERMINATIONS.  OBSERVING THAT "IN INTERPRETING, APPLYING AND
ADMINISTERING A STATUTE OF LIMITATIONS PRESCRIBED BY CONGRESS IN THIS
CONTEXT (THE FIELD OF LABOR RELATIONS), THE BOARD - AND THE COURTS -
ARE NOT CONFRONTED BY PRECISELY THE SAME CONSIDERATIONS AS APPLY TO
STATUTES OF LIMITATIONS AFFECTING THE PRIVATE RIGHTS OF TWO INDIVIDUAL
LITIGANTS," THE COURT REASONED THAT "THE BOARD MAY HAVE THOUGHT THAT
THE INTERESTS OF EMPLOYEE SELF DETERMINATION OUTWEIGHED OTHERWISE
IMPORTANT COMPETING CONSIDERATIONS OF BURYING STALE DISPUTES."  105
U.S. APP. D.C., AT 108-109, 264 F.2D, AT 581-582.  WE THINK THIS
ANALYSIS INADMISSIBLE HERE, FOR THE REASON THAT THE ACCOMMODATION
BETWEEN THESE COMPETING FACTORS HAS ALREADY BEEN MADE BY CONGRESS.  IT
IS A COMMONPLACE, BUT ONE TOO EASILY LOST SIGHT OF, THAT LABOR
LEGISLATION TRADITIONALLY ENTAILS THE ADJUSTMENT AND COMPROMISE OF
COMPETING INTERESTS WHICH IN THE ABSTRACT OR FROM A PURELY PARTISAN
POINT OF VIEW MAY SEEM IRRECONCILABLE.  THE "POLICY OF THE ACT" IS
EMBODIED IN THE TOTALITY OF THAT ADJUSTMENT, AND NOT NECESSARILY IN ANY
SINGLE DEMAND WHICH MAY HAVE FIGURED, HOWEVER WEIGHTILY, IN IT.  CF.
NOTE 7, ANTE.  IT MAY BE ASSERTED, WITHOUT FEAR OF CONTRADICTION, THAT
THE INTEREST IN EMPLOYEE FREEDOM OF CHOICE IS ONE OF THOSE GIVEN LARGE
RECOGNITION BY THE ACT AS AMENDED.  BUT NEITHER CAN ONE DISREGARD THE
INTEREST IN "INDUSTRIAL PEACE WHICH IT IS THE OVERALL PURPOSE OF THE
ACT TO SECURE."  LABOR BOARD V. CHILDS CO., 195 F.2D 617, 621-622
(CONCURRING OPINION OF L. HAND, J.).  CF. COLGATE CO. V. LABOR BOARD,
338 U.S. 355, 362-363.  AS EXPOSITOR OF THE NATIONAL INTEREST,
CONGRESS, IN THE JUDGMENT THAT A SIX-MONTH LIMITATIONS PERIOD DID "NOT
SEEM UNREASONABLE," H.R. REP. NO. 245, 80TH CONG., 1ST SESS., P. 40,
BARRED THE BOARD FROM DEALING WITH PAST CONDUCT AFTER THAT PERIOD HAD
RUN, EVEN AT THE EXPENSE OF THE VINDICATION OF STATUTORY RIGHTS. 
(FN19)  "IT IS NOT NECESSARY FOR US TO JUSTIFY THE POLICY OF CONGRESS. 
IT IS ENOUGH THAT WE FIND IT IN THE STATUTE.  THAT POLICY CANNOT BE
DEFEATED BY THE BOARD'S POLICY  ...  ."  COLGATE CO. V. LABOR BOARD,
SUPRA, AT 363.  CF. SOUTHERN S.S. CO. V. LABOR BOARD, 316 U.S. 31, 47. 
REVERSED. 

FN1  IT WAS SO FOUND BY THE BOARD, AND PETITIONERS HAVE NOT
CHALLENGED THAT FINDING. 

FN2  SECTION 7 (61 STAT. 140, 29 U.S.C. SEC. 157) PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)." 


"(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 7: 

"(2)  TO DOMINATE OR INTERFERE WITH THE FORMATION OR ADMINISTRATION
OF ANY LABOR ORGANIZATION OR CONTRIBUTE FINANCIAL OR OTHER SUPPORT TO
IT:  ...  . 

"(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, THAT NOTHING IN THIS
ACT, OR IN ANY OTHER STATUTE OF THE UNITED STATES, SHALL PRECLUDE AN
EMPLOYER FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION (NOT
ESTABLISHED, MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN SECTION
8(A) OF THIS ACT AS AN UNFAIR LABOR PRACTICE) TO REQUIRE AS A CONDITION
OF EMPLOYMENT MEMBERSHIP THEREIN ON OR AFTER THE THIRTIETH DAY
FOLLOWING THE BEGINNING OF SUCH EMPLOYMENT OR THE EFFECTIVE DATE OF
SUCH AGREEMENT, WHICHEVER IS THE LATER,  ...  IF SUCH LABOR
ORGANIZATION IS THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED IN
SUCH AGREEMENT WHEN MADE; ...  . 

     *         *         *         *         * 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7: ...  . 

"(2)  TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE
AGAINST AN EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3)  ...  ." 

FN3  THE SAME DOCTRINE IS APPLIED TO AN AGREEMENT CONTAINING ONLY A
"RECOGNITION" CLAUSE MAKING A UNION THE EXCLUSIVE BARGAINING AGENT FOR
ALL EMPLOYEES IN THE UNIT COVERED BY THE AGREEMENT.  SEE BERNHARD
ALTMANN TEXAS CORP., 122 N.L.R.B. 1289; CHARLES W. CARTER CO., 115
N.L.R.B. 251, 262; INTERNATIONAL METAL PRODUCTS CO., 104 N.L.R.B. 1076;
JOHN B. SHRIVER CO., 103 N.L.R.B. 23, 38; AND SEE THE TRIAL EXAMINER'S
DISCUSSION IN THE PRESENT CASE, 119 N.L.R.B.  502, 555, N. 98.  THE
AGREEMENT NOW IN QUESTION CONTAINED BOTH A UNION SECURITY AND A
RECOGNITION CLAUSE, BUT FOR CONVENIENCE WE SHALL DEAL WITH THE MATTER
IN TERMS OF THE UNION SECURITY CLAUSE ALONE. 

FN4  SEE 119 N.L.R.B., AT 546, 548. 

FN5  THE PETITION FOR CERTIORARI ALSO RAISED AN ISSUE AS TO THE
PROPRIETY OF THE RELIEF ORDERED BY THE BOARD.  BECAUSE OF OUR VIEW OF
THE CASE IT BECOMES UNNECESSARY TO REACH THAT QUESTION. 

FN6  THE MOST FREQUENTLY CITED BOARD EXPRESSION OF THIS PRINCIPLE IS
THAT FOUND IN AXELSON MFG. CO., 88 N.L.R.B. 761, 766: 

"AS I INTERPRET THE STATUTE HOWEVER, SECTION 10(B) ENACTS A STATUTE
OF LIMITATIONS AND NOT A RULE OF EVIDENCE.  IT FORBIDS THE ISSUANCE OF
COMPLAINTS AND, CONSEQUENTLY, FINDINGS OF VIOLATION OF THE STATUTE IN
CONDUCT NOT WITHIN THE 6 MONTHS' PERIOD.  BUT IT DOES NOT, AS I
CONSTRUE IT, FORBID THE INTRODUCTION OF RELEVANT EVIDENCE BEARING ON
THE ISSUE AS TO WHETHER A VIOLATION HAS OCCURRED DURING THE 6 MONTHS'
PERIOD.  EVENTS OBSCURE, AMBIGUOUS, OR EVEN MEANINGLESS WHEN VIEWED IN
ISOLATION MAY, LIKE THE COMPONENT PARTS OF AN EQUATION, BECOME CLEAR,
DEFINITIVE, AND INFORMATIVE WHEN CONSIDERED IN RELATION TO OTHER
ACTION.  CONDUCT, LIKE LANGUAGE, TAKES ITS MEANING FROM THE
CIRCUMSTANCES IN WHICH IT OCCURS.  CONGRESS CAN SCARCELY HAVE INTENDED
THAT THE BOARD, IN THE PERFORMANCE OF ITS DUTY TO DECIDE THE VALIDITY
OF CONDUCT WITHIN THE 6 MONTHS' PERIOD, SHOULD IGNORE RELIABLE,
PROBATIVE, AND SUBSTANTIAL EVIDENCE AS TO THE MEANING AND THE NATURE OF
THE CONDUCT.  HAD SUCH BEEN THE INTENT, IT SEEMS REASONABLE TO ASSUME
THAT IT WOULD HAVE BEEN STATED." 

THE BOARD, HOWEVER, HAS DEVELOPED CERTAIN LIMITS ON THE APPLICABILITY
OF THIS PRINCIPLE.  SEE P. 421, POST, AND NOTE 13. 

FN7  IT WAS THE VIEW OF ONE MEMBER OF THE BOARD MAJORITY THAT A
PRESUMPTION OF ILLEGALITY SHOULD ATTEND THE ENFORCEMENT OF A UNION
SECURITY CLAUSE, SO THAT SUFFICIENT PROOF OF VIOLATION RESULTS MERELY
FROM A SHOWING THAT SUCH A CLAUSE IS OPERATIVE, THUS PUTTING ON THE
PARTIES TO THE AGREEMENT THE BURDEN TO DEFEND BY PROVING COMPLIANCE
WITH THE REQUIREMENTS OF THE PROVISO TO SEC. 8(A)(3) OF THE ACT, 61
STAT. 140, AS AMENDED, 29 U.S.C. SEC. 158(A)(3), SEE NOTE 2, ANTE,
INCLUDING MAJORITY STATUS AT THE TIME OF EXECUTION.  119 N.L.R.B., AT
510.  WHILE ACCEPTANCE OF THIS VIEW WOULD CONCEDEDLY SUPPORT THE RESULT
REACHED BELOW, IT WAS NOT ADOPTED BY THE BOARD, AS THE CONCURRING
MEMBER ACKNOWLEDGED.  ID., AT 511.  WE TOO REJECT IT.  IT RESTS ON THE
MISTAKEN JUDGMENT THAT THE PROVISO TO SEC. 8(A)(3) PERMITS THE
INCLUSION OF UNION SECURITY PROVISIONS "IN DEROGATION OF THE RIGHTS
GUARANTEED EMPLOYEES IN THE DEFINITIVE STATEMENT OF NATIONAL POLICY
CONTAINED IN SECTION 7," ID., AT 510, AND ON THE PRINCIPLE THAT,
EXONERATION OF CERTAIN TYPES OF UNION SECURITY CLAUSES HAVING BEEN
GRANTED IN A PROVISO, THE BURDEN OF PROVING THE PROVISO'S APPLICABILITY
RESTS ON HIM ASSERTING IT.  THE LATTER PRINCIPLE NEED NOT DETAIN US;
INSIGHTS DERIVED FROM SYNTACTICAL ANALYSIS FORM A HAZARDOUS BASIS FOR
THE EXPLICATION OF MAJOR LEGISLATIVE ENACTMENTS.  AS TO THE ARGUMENT
DRAWN FROM SEC. 7, IT WOULD BE ENOUGH TO NOTE THAT THAT VERY PROVISION
IS IN TERMS LIMITED BY THE SCOPE OF THE SEC. 8(A)(3) PROVISO.  (SEE
NOTE 2, ANTE.)  MORE TO THE HEART OF THE MATTER, IT IS THE ENTIRE ACT,
AND NOT MERELY ONE PORTION OF IT, WHICH EMBODIES "THE DEFINITIVE
STATEMENT OF NATIONAL POLICY."  IT IS WELL KNOWN, AND THE LEGISLATIVE
HISTORY OF THE 1947 TAFT-HARTLEY AMENDMENTS PLAINLY SHOWS, THAT SEC.
8(A)(3) - INCLUDING ITS PROVISO - REPRESENTED THE CONGRESSIONAL
RESPONSE TO THE COMPETING DEMANDS OF EMPLOYEE FREEDOM OF CHOICE AND
UNION SECURITY.  HAD CONGRESS THOUGHT ONE OR THE OTHER OVERRIDING, IT
WOULD DOUBTLESS HAVE FOUND WORDS ADEQUATE TO EXPRESS THAT JUDGMENT.  IT
DID NOT DO SO; IT ACCOMMODATED BOTH INTERESTS, DOUBTLESS IN A MANNER
UNSATISFACTORY TO THE EXTREME PARTISANS OF EACH, BY DRAWING A LINE IT
THOUGHT REASONABLE.  IT IS NOT FOR THE ADMINISTRATORS OF THE
CONGRESSIONAL MANDATE TO APPROACH EITHER SIDE OF THAT LINE GRUDGINGLY. 
FN8  EMPHASIS HERE BY THE TRIAL EXAMINER. 

FN9  THESE OBSERVATIONS WERE ACCEPTED BOTH BY THE BOARD AND THE COURT
OF APPEALS.  119 N.L.R.B., AT 503-504; 105 U.S. APP. D.C., AT 106, 264
F.2D, AT 579.  SEE ALSO LIVELY PHOTOS, INC., 123 N.L.R.B. 1054. 

FN10  THE EXAMINER'S REPORT SHOWS THE PERTINENCY OF THIS STATUTORY
PURPOSE IN THE PRESENT CASE.  IN HIS ANALYSIS OF THE EVIDENCE, HE
OBSERVED: 

"IT IS EVIDENT THAT WITH MANY WITNESSES TESTIFYING AS TO NUMEROUS
DIFFERENT MATTERS, IT WOULD PROTRACT THIS REPORT GREATLY TO SUMMARIZE
ALL OF THE TESTIMONY, OR TO SPELL OUT FULLY THE CONFUSION AND
INCONSISTENCIES THEREIN, MUCH OF WHICH IS NOT TOO SURPRISING, IN VIEW
OF THE FACT THAT, WITH RESPECT TO THE EVENTS OF AUGUST 1954 (THE EVENTS
"AT THE CORE" OF THE ALLEGATIONS OF ILLEGALITY), THERE HAD BEEN A LAPSE
OF ALMOST 15 MONTHS BEFORE TESTIMONY WAS GIVEN IN NOVEMBER 1955."  119
N.L.R.B., AT 529. 

FN11  IN THAT CASE, IN EXPLAINING HIS CONSIDERATION OF "RELEVANT
EVIDENCE" ANTEDATING THE SIX-MONTH PERIOD, THE TRIAL EXAMINER, WHOSE
REPORT WAS CONFIRMED BY THE BOARD, SAID:  "THE RESPONDENT'S EARLIER
CONDUCT HAS BEEN CONSIDERED HERE MERELY FOR THE PURPOSE OF BRINGING
INTO CLEARER FOCUS THE CONDUCT IN ISSUE.  EVEN WITHOUT SUCH
CONSIDERATION, HOWEVER, THE ALLEGATIONS OF DISCRIMINATION WOULD HAVE
BEEN FOUND AMPLY SUPPORTED BY SUCH UNDISPUTED RECORD FACTS AS BEAR
DIRECTLY UPON THE LAYOFFS OF THE EMPLOYEES INVOLVED WITHIN THE SIX
MONTH PERIOD."  87 N.L.R.B., AT 1211.  SEE ALSO LOCAL 1418,
INTERNATIONAL LONGSHOREMEN'S ASSN., 102 N.L.R.B. 720, 729-730, RELIED
ON BY THE BOARD, AND LABOR BOARD V. GENERAL SHOE CORP., 192 F.2D 504;
LABOR BOARD V. CLAUSEN, 188 F.2D 439; AND SUPERIOR ENGRAVING CO. V.
LABOR BOARD, 183 F.2D 783, CITED BY A DISSENTING OPINION HERE. 

FN12  IN BOWEN PRODUCTS AN EMPLOYEE RECALLED FROM LAYOFF WAS
DISCRIMINATORILY PLACED AT THE BOTTOM OF THE RELEVANT SENIORITY LIST. 
HE UNSUCCESSFULLY ATTEMPTED TO OBTAIN HIS PROPER SENIORITY RATING, AND
SEVERAL MONTHS LATER WAS INCLUDED IN AN ECONOMIC REDUCTION IN FORCE. 
HAD HIS SENIORITY ORIGINALLY BEEN PROPERLY COMPUTED, HE WOULD NOT HAVE
BEEN LAID OFF AT THAT TIME.  THE CHARGE WAS FILED AND SERVED WITHIN SIX
MONTHS OF THE LAYOFF, BUT MORE THAN SIX MONTHS AFTER THE ORIGINAL
DETERMINATION OF SENIORITY STATUS.  FINDING THAT THE ONLY BASIS FOR A
HOLDING OF UNLAWFUL LAYOFF WOULD BE A FINDING THAT THAT DETERMINATION
HAD BEEN A VIOLATION OF THE ACT, THE BOARD DISMISSED THE COMPLAINT. 

GREENVILLE COTTON OIL (AMERICAN FEDERATION OF GRAIN MILLERS) DEALT
WITH AN ALLEGED DISCRIMINATORY REFUSAL TO REINSTATE STRIKERS. 
CONCEDING THAT THE RESPONDENT HAD ENGAGED PERMANENT REPLACEMENTS, THE
STRIKERS DEMANDED REINSTATEMENT ON THE GROUND THAT THE STRIKE HAD BEEN
CAUSED OR PROLONGED BY AN UNFAIR LABOR PRACTICE COMMITTED BY THE
EMPLOYER PRIOR TO THE HIRING OF THE REPLACEMENTS.  THE ACTS ALLEGED TO
HAVE CONSTITUTED SUCH UNFAIR PRACTICES HAVING TAKEN PLACE MORE THAN SIX
MONTHS PRIOR TO THE FILING AND SERVICE OF THE CHARGE, THE BOARD HELD
SEC. 10(B) A BAR TO AN ORDER OF REINSTATEMENT. 

FN13  THE COMPLAINT IN NEWS PRINTING CO. ALLEGED THAT A REFUSAL TO
GRANT WAGE INCREASES TO CERTAIN EMPLOYEES HAD BEEN MOTIVATED BY
DISPLEASURE AT THEIR UNION ACTIVITIES.  AS A SUBSTANTIVE MATTER, THIS
ALLEGATION TURNED ON THE RESPONDENT'S MOTIVE AT THE TIME OF THE
REFUSAL, WHICH WAS WITHIN THE LIMITATIONS PERIOD.  HOWEVER, THE GENERAL
COUNSEL WAS UNABLE TO PRODUCE SUFFICIENT EVIDENCE, FROM WITHIN THAT
PERIOD, TO PROVE DISCRIMINATORY MOTIVE, AND THE BOARD REFUSED TO PERMIT
RELIANCE ON EVIDENCE RELATING TO ACTS OCCURRING PRIOR TO THE SIX-MONTH
PERIOD.  THE CONTENTION THAT SUCH EARLIER ACTS COULD BE REFERRED TO IN
ORDER TO JUSTIFY THE INFERENCE THAT THE "PATTERN OF UNLAWFUL CONDUCT
...  CONTINUED ON INTO THE PRESENT SITUATION" WAS REJECTED.  116
N.L.R.B., AT 211.  COMPARE PARAMOUNT CAP MFG. CO., 119 N.L.R.B. 785,
786, 799, ENFORCEMENT GRANTED, 260 F.2D 109, WHERE THE PRESENCE OF
SUBSTANTIAL POST-LIMITATIONS EVIDENCE WAS HELD TO JUSTIFY RESORT TO
EVIDENCE OF EARLIER CONDUCT. 

THE UNIVERSAL OIL PRODUCTS AND TENNESSEE KNITTING MILLS CASES
CONCERNED ALLEGATIONS THAT RESPONDENT EMPLOYERS HAD DOMINATED OR
ASSISTED LABOR ORGANIZATIONS.  HERE AGAIN, THE MATERIAL ISSUE WAS AS TO
THE RELATIONSHIP OF THE RESPONDENTS TO THE UNIONS INVOLVED, AS OF THE
DATE OF THE CHARGE.  YET IN BOTH CASES, BECAUSE THE EVIDENCE FROM
WITHIN THE STATUTORY PERIOD WAS TOO SKETCHY TO WARRANT A FINDING OF
UNLAWFUL CONDUCT, THE BOARD REFUSED TO PERMIT REFERENCE TO EVIDENCE
FROM THE EARLIER PERIOD, DECLINING TO RELY ON AN INFERENCE THAT EARLIER
UNLAWFUL RELATIONSHIPS CONTINUED. 

WHILE IT IS TRUE THAT IN PAINT, VARNISH & LACQUER MAKERS UNION
(ANDREW BROWN CO.), 120 N.L.R.B. 1425, THE BOARD FOUND UNION PICKETING
DURING THE SIX-MONTH PERIOD TO HAVE BEEN UNDERTAKEN FOR THE UNLAWFUL
PURPOSE OF OBTAINING RECOGNITION, ALTHOUGH THE ONLY AFFIRMATIVE
EVIDENCE OF SUCH PURPOSE WAS BASED ON ACTS DONE PRIOR TO THAT PERIOD,
THE DECISION IS NOT INCONSISTENT, SO FAR AS PRESENTLY RELEVANT, WITH
THE CASES DISCUSSED ABOVE.  SUBSTANTIAL EVIDENCE OF PURPOSE FROM WITHIN
THE LIMITATIONS PERIOD WAS FOUND IN RELIANCE ON THE INFERENCE THAT THE
EARLIER MOTIVE HAD CONTINUED UNCHANGED.  ID., AT 1428, 1438.  WHILE THE
PERMISSIBILITY OF AN INFERENCE OF THIS NATURE WAS REJECTED IN THE
PRECEDING CASES, WE NEED NOT NOW INQUIRE INTO THIS SEEMING DISPARITY OF
TREATMENT, FOR IT AFFECTS THE MINOR PREMISE ONLY, AND DOES NOT IMPAIR
THE ACCURACY OF THE PROPOSITION THAT, HOWEVER MARSHALLED, ACTS WITHIN
THE LIMITATIONS PERIOD MUST UNDER BOARD DOCTRINE YIELD SOME SUBSTANTIAL
EVIDENCE OF UNLAWFUL CONDUCT. 

FN14  KATZ V. LABOR BOARD, 196 F.2D 411, AND LABOR BOARD V. GAYNOR
NEWS CO., 197 F.2D 719, RELIED ON BELOW AND IN DISSENT HERE, AROSE
UNDER PROVISIONS OF THE ACT (SEC. 8(A)(3), 61 STAT.  140) SINCE
REPEALED (65 STAT. 601), WHICH PERMITTED UNION SECURITY AGREEMENTS ONLY
WITH UNIONS WHICH POSSESSED A BOARD CERTIFICATE THAT A UNION SECURITY
CLAUSE HAD BEEN AUTHORIZED AT A SPECIAL ELECTION OF THE EMPLOYEES
INVOLVED.  WHILE THE LANGUAGE, AND PERHAPS THE APPROACH, OF THESE CASES
MAY BE CONSIDERED INCONSISTENT WITH THE PRINCIPLES WE DEEM GOVERNING
HERE, THE DECISIONS ON THEIR FACTS PRESENT NO SUCH DIFFICULTY.  PROOF
OF THE NONEXISTENCE OF SUCH A CERTIFICATE, WHICH OF COURSE WAS A
CONTINUING FACT, PLAINLY DID NOT REQUIRE RESORT TO TESTIMONY ABOUT PAST
EVENTS; RATHER THE ISSUE WAS MUCH LIKE ONE ARISING OUT OF AN AGREEMENT
ILLEGAL ON ITS FACE, THE ONLY DIFFERENCE BEING THAT A SEPARATE
INSTRUMENT WAS INVOLVED. 

FN15  WE THINK THE RULE IN CONSPIRACY CASES, WHERE THE STATUTE OF
LIMITATIONS ONLY BEGINS TO RUN UPON THE COMMISSION OF THE LAST OVERT
ACT IN FURTHERANCE THEREOF, DOES NOT FURNISH A USEFUL ANALOGY IN THIS
CASE.  THE STATUTE IN QUESTION HERE BARS ISSUANCE OF A COMPLAINT "BASED
UPON ANY UNFAIR LABOR PRACTICE" WHICH OCCURRED MORE THAN SIX MONTHS
PRIOR TO THE FILING OF THE CHARGE; IT DOES NOT MERELY BAR PROCEEDINGS
AGAINST AN UNFAIR LABOR PRACTICE WHICH ARE NOT COMMENCED WITHIN SIX
MONTHS AFTER THAT UNFAIR LABOR PRACTICE HAS BEEN COMMITTED.  CF. 18
U.S.C. SEC. 3282.  OUR CONCLUSION THAT THE COMPLAINTS GIVING RISE TO
THE JUDGMENT UNDER REVIEW ARE OF NECESSITY "BASED UPON" THE UNFAIR
LABOR PRACTICE OF EXECUTION OF THE AGREEMENT, AND ARE BARRED BY TIME,
HAS DRAWN ON THIS STATUTE'S PURPOSE AND HISTORY, AND WE DO NOT ASSERT
THE UNIVERSAL APPLICABILITY OF OUR RESOLUTION OF THE PARTICULAR
QUESTION PRESENTED FOR DECISION.  IN ANY EVENT, THE COMMISSION OF AN
OVERT ACT PURSUANT TO A CONSPIRATORIAL AGREEMENT REPRESENTS A RENEWED
AFFIRMATION OF THE UNLAWFUL PURPOSE OF THE CONSPIRACY.  THE ACTS
CONSTITUTING ENFORCEMENT OF A COLLECTIVE BARGAINING AGREEMENT CANNOT
WELL BE SO CHARACTERIZED.  BEYOND THAT, ONE MAY QUESTION THE
APPROPRIATENESS OF ANALOGIZING THIS SITUATION, WHERE PROPER APPLICATION
OF A PARTICULAR STATUTE OF LIMITATIONS INVOLVES TAKING INTO ACCOUNT
COMPETING VALUES, TO ONE WHICH INVOLVES AN UNLAWFUL AGREEMENT OF A KIND
UNRESERVEDLY CONDEMNED, AND THE ENTIRE UNDOING OF WHICH IS THE
UNDILUTED PURPOSE OF THE CRIMINAL LAW.  INDEED, THE RULE ADVANCED IN
DISSENT CANNOT BE SQUARED WITH THE BOARD'S OWN APPROACH TO THE
STATUTE.  SEE THE CASES DISCUSSED IN NOTES 12 AND 13, ANTE. 

FN16  THE IMMEDIATE IMPETUS TO THE LEGISLATION WAS THE PENDENCY OF AN
N.L.R.B. PROCEEDING INVOLVING A CLOSED-SHOP AGREEMENT IN EFFECT AT THE
KAISER SHIPBUILDING YARDS AT PORTLAND, OREGON.  THE AGREEMENT, THOUGH
EXECUTED AT A TIME WHEN ONLY 66 WORKERS WERE EMPLOYED, WAS BEING
APPLIED TO A 20,000-MAN WORK FORCE.  THE DEBATES SHOW THAT THE ISSUE OF
REPRESENTATION BY MINORITY UNIONS WAS IN THE FOREFRONT OF LEGISLATIVE
CONCERN.  SEE 89 CONG. REC. 6950 (REMARKS OF REPS.  SMITH AND TARVER),
6953 (REP. TARVER), 7029 (SENS.  TRUMAN AND BALL), 7031-7032 (SEN.
WAGNER). 

FN17  THE NATIONAL LABOR RELATIONS BOARD APPROPRIATION ACT, 1945, 58
STAT. 568, MADE SEVERAL AMENDMENTS IN THE LIMITATIONS PROVISIONS, THE
PRINCIPAL OF WHICH WERE DESIGNED TO RENDER THE RIDER INAPPLICABLE TO
AGREEMENTS WITH COMPANY-DOMINATED UNIONS, AND TO PROVIDE AN ADDITIONAL
THREE-MONTH PERIOD AT THE COMMENCEMENT OF ANY RENEWAL OF AN AGREEMENT
IN WHICH A COMPLAINT COULD BE FILED.  SEE 9 N.L.R.B. ANN. REP. (1944),
PP. 5-6.  SUBSEQUENT RE-ENACTMENTS WERE WITHOUT RELEVANT CHANGE.  59
STAT. 378, 60 STAT. 698. 

FN18  THIS CONCLUSION SEEMS TO US NOT VITIATED BY THE FACT THAT THE
SENATE APPROPRIATIONS COMMITTEE, SUBSEQUENT TO THE ISSUANCE OF THE
LABOR COMMITTEE REPORT, AMENDED THE APPROPRIATIONS RIDER IN A MANNER
PERHAPS SUSCEPTIBLE OF AN INTERPRETATION WHICH WOULD RENDER IT
INAPPLICABLE TO AGREEMENTS WITH MINORITY UNIONS.  S. REP. NO. 146, 80TH
CONG., 1ST SESS., PP. 6, 13.  NOR IS IT SUFFICIENT TO ATTEMPT TO
EXPLAIN AWAY THE LANGUAGE OF THE COMMITTEE REPORT BY RELIANCE ON THE
FACT THAT, WHILE THE APPROPRIATIONS RIDERS IMMUNIZED AGREEMENTS INVALID
ON THEIR FACE AS WELL AS THOSE INVALID FOR LACK OF MAJORITY STATUS, SEE
8 N.L.R.B. ANN. REP. (1943), PP.  7-8, SEC. 10(B) IS MORE NARROWLY
FRAMED, AND CONCEDEDLY DOES NOT PROTECT AN AGREEMENT INVALID ON ITS
FACE FROM ATTACK SIX MONTHS AFTER ITS EXECUTION.  UNDER THE BROAD UNION
SECURITY PROVISO TO SEC. 8(3) OF THE ORIGINAL ACT, 49 STAT. 452,
INVALIDITY OF AN AGREEMENT ON ITS FACE WAS NOT A COMMON PROBLEM, AND WE
SHOULD NOT HAVE EXPECTED CONGRESSIONAL DISCUSSION TO HAVE BEEN
PRIMARILY CONCERNED WITH IT.  AS WE HAVE SEEN, HOWEVER, AGREEMENTS WITH
MINORITY UNIONS WERE SPECIFICALLY THE FOCUS OF CONGRESSIONAL ATTENTION
IN THIS PERIOD, AND THE DIRECT RELEVANCE OF THE COMMITTEE'S DISCUSSION
TO THE HISTORY OF THAT PROBLEM IS EVIDENT. 

FN19  ADOPTION OF A SIX-MONTH PERIOD OF LIMITATIONS, CRITICIZED BY
OPPONENTS OF THE LEGISLATION AS "THE SHORTEST STATUTE OF LIMITATIONS
KNOWN TO THE LAW," S. REP. NO. 105 (PT. II), 80TH CONG., 1ST SESS., P.
5 (MINORITY REPORT), WAS RESISTED ON THE GROUND THAT IT GAVE "UNJUST
ASSISTANCE TO EMPLOYERS OR UNIONS WHICH COMMIT THOSE TYPES OF PRACTICES
WHICH ARE EASILY CONCEALED AND DIFFICULT TO DETECT."  93 CONG. REC.
4905 (REMARKS OF SEN. MURRAY). 

IT NEED HARDLY BE POINTED OUT THAT WE ARE NOT DEALING WITH A CASE OF
FRAUDULENT CONCEALMENT ALLEGED TO TOLL THE STATUTE.  SEE 105 U.S. APP.
D.C., AT 110, 264 F.2D, AT 583 (DISSENTING OPINION). 

MR. JUSTICE FRANKFURTER, DISSENTING. 

WHILE AGREEING WITH MY BROTHER WHITTAKER'S GROUNDS FOR DISSENTING, I
SHOULD LIKE TO ADD CONFIRMING CONSIDERATIONS FOR HIS CONCLUSION.  AT A
TIME WHEN THE UNION DID NOT REPRESENT A MAJORITY OF EMPLOYEES, UNION
AND EMPLOYER ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT, CONTAINING
A "UNION SECURITY" CLAUSE COMPELLING ALL EMPLOYEES TO BECOME MEMBERS OF
THE UNION.  UNDER PRINCIPLES ACCEPTED BY THE COURT, THIS CONSTITUTED AN
"UNFAIR LABOR PRACTICE," FOR IT TENDED "TO RESTRAIN OR COERCE
EMPLOYEES" IN THE EXERCISE OF THEIR RIGHT "TO BARGAIN COLLECTIVELY
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING."  UNION AND EMPLOYER
CONTINUED TO CARRY OUT THE TERMS OF THIS ILLICIT AGREEMENT. 
SPECIFICALLY, THE UNION PURPORTED TO ACT AS AN AUTHORIZED BARGAINING
AGENT, UNION DUES WERE COLLECTED THROUGH A "CHECK-OFF" BY THE EMPLOYER,
AND EMPLOYEES WERE COMPELLED TO BECOME MEMBERS OF THE UNION WITHIN
FORTY-FIVE DAYS.  THE COURT'S OPINION RECOGNIZES THAT ALL THIS
CONSTITUTED CONTINUING INTERFERENCE WITH THE EMPLOYEES' FREE CHOICE AND
WAS THEREFORE A CONTINUING UNFAIR LABOR PRACTICE. 

TEN MONTHS AFTER THE COLLECTIVE AGREEMENT WAS FIRST ENTERED INTO, BUT
WHILE ITS TERMS CONTINUED TO BE ACTIVELY CARRIED OUT, AN UNFAIR LABOR
PRACTICE CHARGE AGAINST THE UNION AND EMPLOYER WAS FILED WITH THE
BOARD.  PLAINLY, THE CONTINUING UNFAIR LABOR PRACTICE OF MAINTAINING
THE COLLECTIVE AGREEMENT ILLEGALLY ENTERED INTO DID OCCUR WITHIN SIX
MONTHS OF THE FILING OF THE CHARGE.  THE COURT ACCEPTS THIS AS TRUE. 
BUT THE COURT HOLDS THAT A CHARGE BASED UPON THAT CONTINUING UNFAIR
PRACTICE IS TIME-BARRED. 

THE APPLICABLE STATUTE OF LIMITATIONS PROVIDES:  "NO COMPLAINT SHALL
ISSUE BASED UPON ANY UNFAIR LABOR PRACTICE OCCURRING MORE THAN SIX
MONTHS PRIOR TO THE FILING OF THE CHARGE WITH THE BOARD."  THE COURT
RELIES ON THE FACT THAT THE ACTIVE CARRYING OUT OF THE AGREEMENT,
CONCEDEDLY AN UNFAIR PRACTICE OCCURRING WITHIN SIX MONTHS, IS REVEALED
AS UNLAWFUL ONLY BY REASON OF THE UNLAWFUL CHARACTER OF THE AGREEMENT
AT ITS INCEPTION, SPECIFICALLY, THE FACT THAT THE UNION DID NOT
REPRESENT A MAJORITY OF EMPLOYEES AT THAT TIME.  THE COURT CONCLUDES
THAT THE ACTION IS BARRED BECAUSE THE INCEPTION OF THE UNLAWFUL
AGREEMENT WAS OUTSIDE OF THE STATUTORY PERIOD.    SUCH AN
INTERPRETATION, I RESPECTFULLY SUBMIT, IS NOT TO ENFORCE CONGRESSIONAL
LEGISLATION, WHICH IS OUR TASK, BUT IS TO FASHION LINGUISTIC
LEGISLATION AND THEN APPLY IT.  INSTEAD OF BARRING ONLY THOSE
COMPLAINTS "BASED UPON ANY UNFAIR LABOR PRACTICE OCCURRING MORE THAN
SIX MONTHS PRIOR TO THE FILING OF THE CHARGE," THE STATUTE IS MADE TO
READ "BASED UPON ANY UNFAIR LABOR PRACTICE HAVING HAD ITS INCEPTION
MORE THAN SIX MONTHS PRIOR TO THE FILING OF THE CHARGE."  THUS THE
COMPLAINT IS HELD BARRED, EVEN THOUGH AN UNFAIR PRACTICE DID OCCUR,
WITH DUE REGARD TO THE THOUGHT CONVEYED BY THAT WORD.  THAT IS, WE HAVE
HERE NOT MERE INERT CONTINUITY OF CONSEQUENCES THROUGH ANTECEDENT
ACTION; EVENTS WERE BROUGHT TO PASS THROUGH CONSCIOUS HUMAN
INTERVENTION WITHIN SIX MONTHS OF THE FILING OF THE CHARGE. 

I SEE NO JUSTIFICATION FOR SUCH REWRITING OF WHAT CONGRESS WROTE. 
THE LEGISLATIVE HISTORY RECITED BY THE COURT MAKES NO SUCH DEMAND. 
CONGRESS NO DOUBT WANTED TO PUT STALE CLAIMS TO REST, AND IT DID SO BY
A RELATIVELY SHORT STATUTE OF LIMITATIONS FOR PERMITTING CLAIMS TO BE
BROUGHT TO LITIGATION.  IF SIX MONTHS ARE ALLOWED TO PASS BY WITHOUT A
CHARGE AGAINST AN UNFAIR LABOR PRACTICE BEING FILED, CONGRESS SAID THAT
IS AN END OF THE MATTER, AND A CHARGE CANNOT BE FILED THEREAFTER.  BUT
CONGRESS DID NOT SAY THAT IF A CHARGE IS FILED WITHIN SIX MONTHS OF THE
OCCURRENCE OF AN UNFAIR PRACTICE, THAT CANNOT BE HALTED, THAT CANNOT BE
PROCEEDED AGAINST, IF SUCH LABOR PRACTICE HAD ITS INCEPTION MORE THAN
SIX MONTHS BEFORE.  ON THE CONTRARY, WHAT I DEEM A CONTROLLING ANALOGY
LEADS ME TO APPLY THE STATUTE AS I FIND IT, AND TO BAR COMPLAINTS ONLY
WHEN BASED UPON ACTIVE OCCURRENCES NOT FALLING WITHIN THE SIX-MONTH
PERIOD.  I FIND THAT ANALOGY IN THE TREATMENT OF THE SAME KIND OF
PROBLEM IN CASES WHERE A CONSPIRACY IS ENTERED INTO BEFORE A STATUTORY
PERIOD BUT IS ACTIVELY KEPT ALIVE WITHIN THAT PERIOD. 

THE ESSENCE OF THE UNFAIR LABOR PRACTICE INVOLVED IN THIS CASE IS THE
MAKING AND MAINTAINING OF AN ILLEGAL AGREEMENT BETWEEN UNION AND
EMPLOYEE.  SUPPOSE THAT CONGRESS, HAVING DEFINED SUCH AN AGREEMENT TO
BE AN UNFAIR LABOR PRACTICE, HAD SUBJECTED IT NOT ONLY TO CIVIL
REMEDIES BUT HAD ALSO MADE IT A MISDEMEANOR.  THAT IS BY NO MEANS A
FANCIFUL SUPPOSITION.  THE FEDERAL ANTITRUST STATUTES ARE A PROMINENT
INSTANCE OF THE USE OF THE CRIMINAL LAW, AND IN PARTICULAR THE LAW OF
CONSPIRACY, AS PART OF A SCHEME OF INDUSTRIAL REGULATION.  SUPPOSE A
SIX-MONTH STATUTORY LIMITATIONS PERIOD FOR THE CRIMINAL CHARGE, AS WE
NOW HAVE FOR THE CIVIL, AND SUPPOSE THE VERY FACTS OF THIS CASE. 
SPECIFICALLY, SUPPOSE IT HAD BEEN CHARGED THAT DURING THE PRIOR SIX
MONTHS, BY MAINTAINING THEIR COLLECTIVE AGREEMENT, ENTERED INTO WHEN
THE UNION DID NOT REPRESENT A MAJORITY OF EMPLOYEES, THE UNION AND
EMPLOYER HAD CONSPIRED TO DEPRIVE EMPLOYEES OF THEIR RIGHTS FREELY TO
CHOOSE BARGAINING REPRESENTATIVES, AND THAT DURING THOSE SIX MONTHS
OVERT ACTS HAD BEEN COMMITTED IN PURSUANCE OF THE UNLAWFUL AGREEMENT. 

TO FIND A COGNATE STATUTE OF LIMITATIONS TO BE A BAR TO SUCH A CASE
WOULD BE TO IGNORE THE APPLICABLE PRECEDENTS.  THE RULES SET OUT BY
THIS COURT FOR APPLYING STATUTES OF LIMITATIONS TO CONSPIRACY CASES ARE
CLEARLY OTHERWISE.  SEE UNITED STATES V. KISSEL, 218 U.S. 601; HYDE V.
UNITED STATES, 225 U.S. 347, 367-370; BROWN V. ELLIOTT, 225 U.S. 392,
400-401; FISWICK V. UNITED STATES, 329 U.S. 211, 216; GRUNEWALD V.
UNITED STATES, 353 U.S. 391, 396-397.  "THE STATUTE OF LIMITATIONS,
UNLESS SUSPENDED, RUNS FROM THE LAST OVERT ACT DURING THE EXISTENCE OF
THE CONSPIRACY."  FISWICK V. UNITED STATES, SUPRA, AT 216.  AND THESE
CASES SHOW THAT THIS PRINCIPLE APPLIES EVEN WHEN, AS HERE, THE OVERT
ACTS WITHIN THE STATUTORY PERIOD DERIVE THEIR ILLEGAL SIGNIFICANCE ONLY
WHEN INTERPRETED IN LIGHT OF AN ILLEGAL AGREEMENT WHICH WAS INITIATED
PRIOR TO THE STATUTORY PERIOD FOR BRINGING A CHARGE.  CERTAINLY, THE
ILLEGALITIES COMMITTED WITHIN THE SIX-MONTHS PERIOD IN THIS CASE, TO
THE SAME DEGREE AS OVERT ACTS IN PURSUANCE OF A CONSPIRACY ALREADY
FORMED, REPRESENT "A RENEWED AFFIRMATION OF THE UNLAWFUL PURPOSE,"
EXPRESSED IN AN AGREEMENT WHICH CONGRESS HAS OUTLAWED AS AN UNFAIR
LABOR PRACTICE.  A CONSPIRACY IS KEPT ALIVE BY AN OVERT ACT WITHIN THE
PERIOD OF THE STATUTE OF LIMITATIONS NOT BY REASON OF SOME DOGMATIC
POSTULATE RELEVANT TO CONSPIRACIES, BUT AS A RESULT OF JUDICIAL
REASONING IN APPLYING STATUTES OF LIMITATIONS.  THIS REASONING IS
EQUALLY APPLICABLE TO THE MATTER IN HAND. 

I AM BAFFLED TO UNDERSTAND WHY THE PRESENT CASE SHOULD BE DIFFERENT
FROM WHAT IT WOULD BE WERE IT A PROSECUTION FOR CRIMINAL CONSPIRACY,
RATHER THAN A CIVIL PROCEEDING BASED ON AN AGREEMENT GIVING RISE TO AN
UNFAIR LABOR PRACTICE. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
DISSENTING. 

THE COURT CORRECTLY RECOGNIZES (1) THAT IT IS VIOLATIVE OF EMPLOYEES'
RIGHTS GUARANTEED BY SEC. 7, AND AN UNFAIR LABOR PRACTICE BY AN
EMPLOYER UNDER SEC. 8(A) AND BY A LABOR UNION UNDER SEC. 8(B), OF THE
NATIONAL LABOR RELATIONS ACT, FOR AN EMPLOYER AND A LABOR UNION TO
ENTER INTO A CONTRACT PROVIDING EITHER FOR THE RECOGNITION BY THE
EMPLOYER OF THE UNION AS THE REPRESENTATIVE OF ITS EMPLOYEES OR THAT
ITS EMPLOYEES MUST BECOME AND REMAIN MEMBERS OF THE UNION, UNLESS THE
UNION, AT THAT TIME, REPRESENTED A MAJORITY OF THE EMPLOYEES IN THE
UNIT, (2) THAT "THE MAINTAINING OF SUCH AN AGREEMENT IN FORCE IS A
CONTINUING VIOLATION OF THE ACT," AND (3) THAT THE BARGAINING CONTRACT
INVOLVED IN THIS CASE NOT ONLY RECOGNIZED THE UNION AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF THE EMPLOYEES, BUT ALSO REQUIRED THE
EMPLOYEES TO BECOME AND REMAIN MEMBERS OF THE UNION, ALTHOUGH THE UNION
DID NOT THEN REPRESENT A MAJORITY OF THE EMPLOYEES IN THE UNIT.* 

*IN FACT, THE UNDISPUTED TESTIMONY WAS THAT THE UNION DID NOT THEN
REPRESENT A SINGLE ONE OF THE EMPLOYEES, AND THAT THE EMPLOYER ACCEDED
TO THE UNION'S DEMAND FOR RECOGNITION AND ENTERED INTO THE CONTRACT
SIMPLY BECAUSE THE UNION HAD IT "OVER A BARREL." 

DESPITE THE FOREGOING, THE COURT HOLDS, I THINK, WITH DEFERENCE,
QUITE INCONSISTENTLY AND ERRONEOUSLY, THAT SEC. 10(B) OF THE ACT BARRED
THE ISSUANCE OF A COMPLAINT, UPON AN EMPLOYEE'S CHARGE FILED WITH AND
SERVED BY THE BOARD 10 MONTHS AFTER THE MAKING OF THE CONTRACT, BASED
NOT UPON THE MAKING OF THE CONTRACT, BUT ALLEGING THAT, WITHIN AND
THROUGHOUT THE PERIOD OF SIX MONTHS PRECEDING THE FILING AND SERVICE OF
THE CHARGE, THE EMPLOYER AND THE UNION REQUIRED THE EMPLOYEES TO BECOME
AND REMAIN MEMBERS OF THE UNION, AND, ONCE IN EACH OF THOSE SIX MONTHS,
CAUSED CERTAIN SUMS TO BE DEDUCTED FROM THE EMPLOYEES' WAGES AND PAID
OVER TO THE UNION, ALL WITHOUT THE AUTHORIZATION OF THE EMPLOYEES. 

THE COURT, NOTING THE EMPLOYER-UNION CONTENTION THAT THE CONTRACT WAS
"TAINTED" ONLY BY ITS "UNLAWFUL EXECUTION," AND THAT "SINCE A COMPLAINT
BASED UPON THAT UNFAIR LABOR PRACTICE WOULD BE BARRED" BY SEC. 10(B),
THAT EVENT COULD NOT BE UTILIZED "TO INFUSE WITH ILLEGALITY THE
OTHERWISE LEGAL UNION SECURITY CLAUSE OR ITS ENFORCEMENT," ADOPTS THAT
ARGUMENT AS PRESENTING THE "CORRECT VIEW." 

SURELY THE FACT THAT A PROSECUTION FOR THE MAKING OF A "TAINTED"
CONTRACT IS BARRED BY LIMITATIONS DOES NOT "INFUSE" THE "TAINTED"
CONTRACT WITH LEGALITY.  MOREOVER, I RESPECTFULLY SUBMIT THAT THE
COMPLAINT HERE WAS NOT BASED UPON THE "TAINTED" CONTRACT, AND THAT ITS
UNLAWFUL EXECUTION WAS NOT UTILIZED "TO INFUSE THE ALWAYS ILLEGAL
CONTRACT WITH ILLEGALITY."  RATHER, THE COMPLAINT HERE WAS BASED UPON
AND LIMITED TO INDEPENDENT ACTS OF THE EMPLOYER AND THE UNION,
COMMITTED WITHIN SIX MONTHS PRECEDING THE FILING AND SERVICE OF THE
CHARGE, THAT DEPRIVED THE EMPLOYEES OF RIGHTS GUARANTEED TO THEM BY
SEC. 7, RESULTING IN UNFAIR LABOR PRACTICES UNDER SEC. 8; AND THE FACT
THAT PROSECUTION FOR THE ILLEGAL EXECUTION OF THE "TAINTED" CONTRACT IS
TIME-BARRED, AS AN INDEPENDENT WRONG, MAY NOT BE UTILIZED "TO INFUSE
WITH" LEGALITY THE ILLEGAL "UNION SECURITY CLAUSE OR ITS ENFORCEMENT." 

IT IS IMPORTANT CAREFULLY TO NOTE WHAT IT IS THAT SEC. 10(B) BARS. 
IT SAYS, IN RELEVANT PART, THAT "NO COMPLAINT SHALL ISSUE BASED UPON
ANY UNFAIR LABOR PRACTICE OCCURRING MORE THAN SIX MONTHS PRIOR TO THE
FILING OF THE CHARGE  ...  ."  THE BAR IS, THEN, AGAINST THE ISSUANCE
OF A "COMPLAINT" THAT IS "BASED UPON" ACTS "OCCURRING MORE" THAN SIX
MONTHS PRIOR TO THE FILING OF THE CHARGE.  IN THE PLAINEST POSSIBLE
SENSE, THEN, IT DOES NOT BAR THE ISSUANCE OF A COMPLAINT BASED UPON
ACTS OCCURRING WITHIN SIX MONTHS OF THE FILING OF THE CHARGE.  THE
COMPLAINT THAT WAS ISSUED HERE WAS BASED UPON ACTS OCCURRING WITHIN SIX
MONTHS OF THE FILING OF THE CHARGE.  AND THE BOARD RESTED ITS DECISION
SOLELY ON THOSE ACTS. 

BUT THE COURT HOLDS THAT, ALTHOUGH SEC. 10(B) IS ONLY A STATUTE OF
LIMITATIONS, EVIDENCE OF THE ILLEGALITY OF THE CONTRACT IS
INADMISSIBLE, IN THE CIRCUMSTANCES OF THIS CASE, BECAUSE IT WOULD SERVE
"TO CLOAK WITH ILLEGALITY THAT WHICH WAS OTHERWISE LAWFUL," AND WOULD
PERMIT A TIME-BARRED EVENT "TO BE SO USED AS TO REVIVE A LEGALLY
DEFUNCT UNFAIR LABOR PRACTICE."  THIS CONCLUSION GIVES HIP RATHER THAN
HEED TO THE CONCEDED RULE THAT "THE MAINTAINING OF SUCH AN AGREEMENT IN
FORCE IS A CONTINUING VIOLATION OF THE ACT," FOR IT MAKES INCOMPETENT
ALL RELEVANT EVIDENCE THAT MAY BE ADDUCED TO PROVE THE "CONTINUING
VIOLATION."  MOREOVER, SUCH A RULE IS CONTRARY TO THE DECISIONS OF THIS
COURT AND TO EVERY DECISION OF THE COURTS OF APPEALS UPON THE POINT TO
WHICH OUR ATTENTION HAS BEEN DIRECTED. 

IN FEDERAL TRADE COMM'N V. CEMENT INSTITUTE, 333 U.S. 683, THIS COURT
HELD IT TO BE: 

"WELL WITHIN THE ESTABLISHED JUDICIAL RULE OF EVIDENCE THAT TESTIMONY
OF PRIOR OR SUBSEQUENT TRANSACTIONS, WHICH FOR SOME REASON ARE BARRED
FROM FORMING THE BASIS FOR A SUIT, MAY NEVERTHELESS BE INTRODUCED IF IT
TENDS REASONABLY TO SHOW THE PURPOSE AND CHARACTER OF THE PARTICULAR
TRANSACTIONS UNDER SCRUTINY.  STANDARD OIL CO. V. UNITED STATES, 221
U.S. 1, 46-47; UNITED STATES V. READING CO., 253 U.S. 26, 43-44."  333
U.S., AT 705. 

TO THE SAME EFFECT, BUT DIRECTLY DEALING WITH UNFAIR LABOR PRACTICES,
ARE PARAMOUNT CAP MFG. CO. V. LABOR BOARD, 260 F.2D 109, 112-113 (C.A.
8TH CIR.); LABOR BOARD V. GAYNOR NEWS CO., 197 F.2D 719, 722 (C.A. 2D
CIR.), AFF'D SUB NOM., RADIO OFFICERS V. LABOR BOARD, 347 U.S. 17; KATZ
V. LABOR BOARD, 196 F.2D 411, 415 (C.A. 9TH CIR.); LABOR BOARD V.
GENERAL SHOE CORP., 192 F.2D 504, 507 (C.A. 6TH CIR.); LABOR BOARD V.
CLAUSEN, 188 F.2D 439, 443 (C.A.  3D CIR.); SUPERIOR ENGRAVING CO. V.
LABOR BOARD, 183 F.2D 783, 791 (C.A. 7TH CIR.). 

IN THE KATZ CASE, ALMOST IDENTICAL WITH THIS ONE ON THE POINT IN
ISSUE, THE COURT SPECIFICALLY REJECTED THE CONTENTION THAT, INASMUCH AS
MORE THAN SIX MONTHS HAD EXPIRED FROM THE DATE OF THE EXECUTION OF THE
TAINTED CONTRACT, THE COMPLAINT, BASED UPON ACTS OCCURRING WITHIN SIX
MONTHS OF THE CHARGE, WAS BARRED BY SEC. 10(B), SAYING: 

"WHILE  ...  THE MERE EXECUTION OF THE AGREEMENT ON DECEMBER 17,
1948, CONSTITUTED AN UNFAIR LABOR PRACTICE, THERE IS NO DOUBT BUT THAT
THE CONTINUOUS ENFORCEMENT OF THE AGREEMENT THEREAFTER WITHIN THE SIX
MONTHS PERIOD PRIOR TO THE FILING OF THE CHARGE, WAS AN UNFAIR LABOR
PRACTICE, AND WITH RESPECT TO THIS CONTINUED AND CONTINUOUS ENFORCEMENT
OF THE ILLEGAL UNION SHOP AGREEMENT, THE PROSECUTION OF THE PROCEEDING
WAS NOT BARRED BY LIMITATIONS."  196 F.2D, AT 415. 

IN THE GAYNOR CASE, THE COURT, AFTER POINTING OUT THAT ALTHOUGH THE
TAINTED CONTRACT HAD BEEN EXECUTED MORE THAN SIX MONTHS PRIOR TO THE
FILING OF THE CHARGE, AND ITS EXECUTION WAS THEREFORE BARRED AS AN
INDEPENDENT SUBJECT OF PUNISHMENT BY SEC. 10(B), OBSERVED THAT
ENFORCEMENT OF THE CONTRACT WAS "A CONTINUING OFFENSE," AND HELD THAT
THE COMPLAINT, BASED ONLY ON ACTS OCCURRING WITHIN SIX MONTHS OF THE
FILING OF THE CHARGE, WAS LAWFULLY ISSUED AND "IN ALL RESPECTS VALID." 
197 F.2D, AT 722. 

ALTHOUGH STILL RECOGNIZING THAT ENFORCEMENT OF A TAINTED LABOR
CONTRACT "IS A CONTINUING VIOLATION" OF THE LAW, THE COURT FURTHER SAYS
THAT THIS IS TRUE "SOLELY BY REASON OF CIRCUMSTANCES EXISTING ONLY AT
THE DATE OF EXECUTION"; AND IT THEREFORE CONCLUDES THAT EVIDENCE OF THE
TAINT IS INADMISSIBLE IN A PROCEEDING TO PUNISH UNLAWFUL CONDUCT
OCCURRING FROM ENFORCEMENT OF THE CONTRACT WITHIN SIX MONTHS OF THE
FILING OF A CHARGE.  I RESPECTFULLY SUBMIT IT IS PLAIN THAT THIS
REASONING NEGATES THE CONCEDED RULE THAT ENFORCEMENT OF A TAINTED
CONTRACT IS "A CONTINUING OFFENSE."  THE COURT'S REASONING,
INCONSISTENTLY, WOULD AT ONCE BOTH RECOGNIZE, AND DENY ANY MEANS OF
PROVING, THE "CONTINUING OFFENSE." 

ANALYTICAL CURIOSITY PROVOKES THE QUERY WHETHER SUCH AN ILLEGAL
CONTRACT, OPENLY POSTED IN THE PLANT BUT NOT MADE EFFECTIVE IN PRACTICE
UNTIL THE FIRST DAY OF THE SEVENTH MONTH, WOULD THEN BECOME SO
"INFUSED" WITH LEGALITY AS TO BE UNASSAILABLE BY THE EMPLOYEES - NOT
BECAUSE ITS ENFORCEMENT IS NOT "A CONTINUING OFFENSE," BUT, RATHER,
BECAUSE, UNDER THE COURT'S RULE, THERE CAN BE NO COMPETENT EVIDENCE OF
ITS ILLEGALITY.  IF SO, THE RULE OF "CONTINUING OFFENSE" IS UTTERLY
DESTROYED.  IF NOT, THE COURT'S RULE THAT THERE CAN BE NO COMPETENT
EVIDENCE OF THE CONTINUING VIOLATION MUST GIVE WAY.  THE TWO THEORIES
ARE DIAMETRICALLY OPPOSED AND SELF-DESTRUCTIVE.  SECTION 10(B) DOES NOT
AT ALL DEAL WITH THE COMPETENCY OR ADMISSIBILITY OF EVIDENCE.  SURELY,
AS THE CITED CASES HOLD, ANY EVIDENCE WHICH SHOWS THAT CONTINUING
ENFORCEMENT OF THE CONTRACT IS OR IS NOT AN OFFENSE UNDER THE ACT IS
COMPETENT UNDER THE LAW.    BUT THERE IS EVEN A MORE FUNDAMENTAL
CONSIDERATION WHICH, FOR ME, SETTLES THIS ISSUE BEYOND ALL
CONTROVERSY.  WHILE IT IS THE BURDEN OF THE GENERAL COUNSEL OF THE
BOARD TO PROVE HIS CASE, ALL HE NEED DO, INITIALLY AT LEAST, IS TO MAKE
A PRIMA FACIE CASE.  HE MAY DO THIS, IN A CASE LIKE THE PRESENT, SIMPLY
BY PUTTING ON EVIDENCE SHOWING THAT THE EMPLOYER AND THE UNION, WITHIN
SIX MONTHS PRECEDING THE FILING OF THE CHARGE, REQUIRED THE EMPLOYEES
TO BECOME AND REMAIN MEMBERS OF THE UNION AND TO SUBMIT TO DEDUCTION OF
DUES FROM THEIR WAGES WITHOUT ASKING THEM FOR AUTHORIZATION AND WITHOUT
ANY ELECTION, OR BOARD CERTIFICATION OF THE UNION.  THAT EVIDENCE ALONE
WOULD RAISE PRIMA FACIE THE ISSUE:  BY WHAT RIGHT WAS THIS DONE?  THAT
ISSUE WOULD CALL FOR A DEFENSE, AND THE BURDEN OF PRODUCING THE DEFENSE
WOULD NECESSARILY FALL UPON THE EMPLOYER AND THE UNION.  SURELY IT WILL
NOT BE SAID THAT ANYTHING IN SEC. 10(B), OR ELSEWHERE IN THE LAW, MAKES
INCOMPETENT ALL EVIDENCE THAT MIGHT BE ADDUCED BY THE EMPLOYER AND THE
UNION TO MEET THEIR BURDEN AND JUSTIFY THEIR ACTION.  IF, AS I SUBMIT
CANNOT BE DENIED, SUCH EVIDENCE IS COMPETENT WHEN OFFERED BY THE
EMPLOYER AND THE UNION, IT MUST LIKEWISE BE COMPETENT WHEN, IF HE SO
ELECTS, IT IS OFFERED BY THE GENERAL COUNSEL OF THE BOARD.  HERE, AT
THE VERY LEAST, THE GENERAL COUNSEL MADE A PRIMA FACIE CASE OF
CONTINUING VIOLATIONS OF THE LAW WITHIN THE SIX MONTHS PRECEDING THE
FILING OF THE CHARGE, THE EMPLOYER AND THE UNION MADE NO EFFORT TO SHOW
THE LEGALITY OF THEIR CONDUCT IN THE PERIOD COMPLAINED OF. 

THE COURT ATTRIBUTES TO ITS RULE THE VIRTUES OF QUIETING "STATE
CLAIMS" AND OF "STABILIZING EXISTING BARGAINING RELATIONSHIPS."  I
CANNOT AGREE THAT IT WOULD DO EITHER, FOR EMPLOYEE RIGHTS, OCCURRING
WITHIN SIX MONTHS OF THE FILING OF THE CHARGE, ARE NOT "STALE CLAIMS,"
AND DEPRIVATION OF THOSE RIGHTS WHICH, AS THE COURT OF APPEALS SAID,
"RANKLES AT LEAST ONCE A MONTH IN THE MIND OF THE EMPLOYEES OFFENDED,"
IS NOT CONDUCIVE TO INDUSTRIAL PEACE AND WOULD NOT - CERTAINLY NOT
LEGALLY - "STABILIZE EXISTING BARGAINING RELATIONSHIPS."  AT ALL
EVENTS, AND HOWEVER THIS MAY BE, THESE MATTERS WERE FOR CONGRESS; AND
THE CARDINAL PURPOSES OF THE NATIONAL LABOR RELATIONS ACT, CONTAINED IN
SEC. 7, WERE TO GUARANTEE TO EMPLOYEES THE RIGHT TO JOIN OR ASSIST
LABOR ORGANIZATIONS "OF THEIR OWN CHOOSING" OR TO REFRAIN FROM SUCH
ACTIVITIES.  SURELY, THE CONTINUING OFFENSE OF ENFORCING A CONTRACT,
MADE BY AN EMPLOYER WITH A UNION WHICH WAS NOT OF THE EMPLOYEES'"OWN
CHOOSING," WAS NOT INTENDED BY CONGRESS TO BE LEFT WITHOUT A REMEDY. 
CONGRESS DID NOT INTEND TO CREATE AND "TO HOLD OUT TO EMPLOYEES AN
ILLUSORY RIGHT FOR WHICH IT WAS DENYING THEM A REMEDY."  GRAHAM V.
BROTHERHOOD OF FIREMEN, 338 U.S. 232, 240.  CERTAINLY, "ANY LIMITATION
ON THE EMPLOYEES' RIGHTS UNDER SECS. 7 AND 8  ...  MUST BE MORE
EXPLICIT AND CLEAR THAN IT IS HERE IN ORDER TO RESTRICT THEM AT THE
VERY TIME THEY MAY BE MOST NEEDED."  MASTRO PLASTICS CORP. V. LABOR
BOARD, 350 U.S. 270, 287.  SEE ALSO LABOR BOARD V. LION OIL CO., 352
U.S. 282, 289. 

BELIEVING THAT THE BOARD AND THE COURT OF APPEALS CORRECTLY DECIDED
THIS CASE, I WOULD AFFIRM THE JUDGMENT. 
..END :



















HURON PORTLAND CEMENT CO. V. CITY OF DETROIT 362 U.S. 440 


NO. 86.  ARGUED FEBRAURY 29, 1960 - DECIDED APRIL 25, 1960 - 355 MICH.
227, 93 N.W.2D 888, AFFIRMED. 


THE CRIMINAL PROVISIONS OF THE SMOKE ABATEMENT CODE OF THE CITY OF
DETROIT ARE CONSTITUTIONAL, AS APPLIED TO PROSECUTION FOR THE EMISSION
OF DENSE BLACK SMOKE BY APPELLANT'S SHIPS WHILE DOCKED AT THE PORT OF
DETROIT, EVEN THOUGH SUCH SHIPS OPERATE IN INTERSTATE COMMERCE AND HAVE
BEEN INSPECTED, APPROVED AND LICENSED BY THE FEDERAL GOVERNMENT FOR
THAT PURPOSE IN ACCORDANCE WITH A COMPREHENSIVE SYSTEM OF REGULATION
ENACTED BY CONGRESS.  PP. 440-448. 

(A)  THE FEDERAL INSPECTION LAWS, WHICH ARE DESIGNED TO AFFORD
PROTECTION FROM THE PERILS OF MARITIME NAVIGATION, DO NOT SO PREEMPT
THE FIELD AS TO PREVENT LOCAL REGULATION TO PROTECT THE HEALTH AND
ENHANCE THE CLEANLINESS OF THE LOCAL COMMUNITY; AND THE LOCAL
REGULATION HERE INVOLVED DOES NOT UNCONSTITUTIONALLY BURDEN THE FEDERAL
LICENSES ISSUED TO THESE VESSELS.  PP. 444-448. 

(B)  THE CRIMINAL PROVISIONS OF THE SMOKE ABATEMENT CODE, AS APPLIED
TO APPELLANT'S SHIPS, DO NOT IMPOSE AN UNDUE BURDEN ON INTERSTATE
COMMERCE.  P. 448. 

HURON PORTLAND CEMENT CO. V. CITY OF DETROIT ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF MICHIGAN DRAWS IN
QUESTION THE CONSTITUTIONAL VALIDITY OF CERTAIN PROVISIONS OF DETROIT'S
SMOKE ABATEMENT CODE AS APPLIED TO SHIPS OWNED BY THE APPELLANT AND
OPERATED IN INTERSTATE COMMERCE. 

THE APPELLANT IS A MICHIGAN CORPORATION, ENGAGED IN THE MANUFACTURE
AND SALE OF CEMENT.  IT MAINTAINS A FLEET OF FIVE VESSELS WHICH IT USES
TO TRANSPORT CEMENT FROM ITS MILL IN ALPENA, MICHIGAN, TO DISTRIBUTING
PLANTS LOCATED IN VARIOUS STATES BORDERING THE GREAT LAKES.  TWO OF THE
SHIPS, THE S.S. CRAPO AND THE S.S. BOARDMAN, ARE EQUIPPED WITH HAND
FIRED SCOTCH MARINE BOILERS.  WHILE THESE VESSELS ARE DOCKED FOR
LOADING AND UNLOADING IT IS NECESSARY, IN ORDER TO OPERATE DECK
MACHINERY, TO KEEP THE BOILERS FIRED AND TO CLEAN THE FIRES
PERIODICALLY.  WHEN THE FIRES ARE CLEANED, THE SHIP'S BOILER STACKS
EMIT SMOKE WHICH IN DENSITY AND DURATION EXCEEDS THE MAXIMUM STANDARDS
ALLOWABLE UNDER THE DETROIT SMOKE ABATEMENT CODE.  STRUCTURAL
ALTERATIONS WOULD BE REQUIRED IN ORDER TO INSURE COMPLIANCE WITH THE
CODE. 

CRIMINAL PROCEEDINGS WERE INSTITUTED IN THE DETROIT RECORDER'S COURT
AGAINST THE APPELLANT AND ITS AGENTS FOR VIOLATIONS OF THE CITY LAW
DURING PERIODS WHEN THE VESSELS WERE DOCKED AT THE PORT OF DETROIT. 
THE APPELLANT BROUGHT AN ACTION IN THE STATE CIRCUIT COURT TO ENJOIN
THE CITY FROM FURTHER PROSECUTING THE PENDING LITIGATION IN THE
RECORDER'S COURT, AND FROM OTHERWISE ENFORCING THE SMOKE ORDINANCE
AGAINST ITS VESSELS, "EXCEPT WHERE THE EMISSION OF SMOKE IS CAUSED BY
THE IMPROPER FIRING OR THE IMPROPER USE OF THE EQUIPMENT UPON SAID
VESSELS."  THE CIRCUIT COURT REFUSED TO GRANT RELIEF, AND THE SUPREME
COURT OF MICHIGAN AFFIRMED, 355 MICH. 227, 93 N.W.2D 888.  AN APPEAL
WAS LODGED HERE, AND WE NOTED PROBABLE JURISDICTION, 361 U.S. 806. 

IN SUPPORT OF THE CLAIM THAT THE ORDINANCE CANNOT CONSTITUTIONALLY BE
APPLIED TO APPELLANT'S SHIPS, TWO BASIC ARGUMENTS ARE ADVANCED.  FIRST,
IT IS ASSERTED THAT SINCE THE VESSELS AND THEIR EQUIPMENT, INCLUDING
THEIR BOILERS, HAVE BEEN INSPECTED, APPROVED AND LICENSED TO OPERATE IN
INTERSTATE COMMERCE IN ACCORDANCE WITH A COMPREHENSIVE SYSTEM OF
REGULATION ENACTED BY CONGRESS, THE CITY OF DETROIT MAY NOT LEGISLATE
IN SUCH A WAY AS, IN EFFECT, TO IMPOSE ADDITIONAL OR INCONSISTENT
STANDARDS.  SECONDLY, THE ARGUMENT IS MADE THAT EVEN IF CONGRESS HAS
NOT EXPRESSLY PRE-EMPTED THE FIELD, THE MUNICIPAL ORDINANCE "MATERIALLY
AFFECTS INTERSTATE COMMERCE IN MATTERS WHERE UNIFORMITY IS NECESSARY." 
WE HAVE CONCLUDED THAT NEITHER OF THESE CONTENTIONS CAN PREVAIL, AND
THAT THE FEDERAL CONSTITUTION DOES NOT PROHIBIT APPLICATION TO THE
APPELLANT'S VESSELS OF THE CRIMINAL PROVISIONS OF THE DETROIT
ORDINANCE.  (FN1) 

THE ORDINANCE WAS ENACTED FOR THE MANIFEST PURPOSE OF PROMOTING THE
HEALTH AND WELFARE OF THE CITY'S INHABITANTS.  LEGISLATION DESIGNED TO
FREE FROM POLLUTION THE VERY AIR THAT PEOPLE BREATHE CLEARLY FALLS
WITHIN THE EXERCISE OF EVEN THE MOST TRADITIONAL CONCEPT OF WHAT IS
COMPENDIOUSLY KNOWN AS THE POLICE POWER.  IN THE EXERCISE OF THAT
POWER, THE STATES AND THEIR INSTRUMENTALITIES MAY ACT, IN MANY AREAS OF
INTERSTATE COMMERCE AND MARITIME ACTIVITIES, CONCURRENTLY WITH THE
FEDERAL GOVERNMENT.  GIBBONS V. OGDEN, 9 WHEAT, 1; COOLEY V. BOARD OF
WARDENS OF PORT OF PHILADELPHIA, 12 HOW.  299; THE STEAMBOAT NEW YORK
V. REA, 18 HOW.  223; MORGAN V. LOUISIANA, 118 U.S. 455; THE MINNESOTA
RATE CASES, 230 U.S. 352; WILMINGTON TRANSP.  CO. V. CALIFORNIA
RAILROAD COMM., 236 U.S. 151; VANDALIA R. CO. V. PUBLIC SERVICE COMM.,
242 U.S. 255; STEWART & CO. V. RIVARA, 274 U.S. 614; WELCH CO. V. NEW
HAMPSHIRE, 306 U.S. 79. 

THE BASIC LIMITATIONS UPON LOCAL LEGISLATIVE POWER IN THIS AREA ARE
CLEAR ENOUGH.  THE CONTROLLING PRINCIPLES HAVE BEEN REITERATED OVER THE
YEARS IN A HOST OF THIS COURT'S DECISIONS.  EVENHANDED LOCAL REGULATION
TO EFFECTUATE A LEGITIMATE LOCAL PUBLIC INTEREST IS VALID UNLESS
PREEMPTED BY FEDERAL ACTION, ERIE R. CO. V. NEW YORK, 233 U.S. 671;
OREGON-WASHINGTON CO. V. WASHINGTON, 270 U.S. 87; NAPIER V. ATLANTIC
COAST LINE, 272 U.S. 605; MISSOURI PACIFIC CO. V. PORTER, 273 U.S. 341;
SERVICE TRANSFER CO. V. VIRGINIA, 359 U.S. 171, OR UNDULY BURDENSOME ON
MARITIME ACTIVITIES OR INTERSTATE COMMERCE, MINNESOTA V. BARBER, 136
U.S. 313; MORGAN V. VIRGINIA, 328 U.S. 373; BIBB V. NAVAJO FREIGHT
LINES, 359 U.S. 520. 

IN DETERMINING WHETHER STATE REGULATION HAS BEEN PREEMPTED BY FEDERAL
ACTION, "THE INTENT TO SUPERSEDE THE EXERCISE BY THE STATE OF ITS
POLICE POWER AS TO MATTERS NOT COVERED BY THE FEDERAL LEGISLATION IS
NOT TO BE INFERRED FROM THE MERE FACT THAT CONGRESS HAS SEEN FIT TO
CIRCUMSCRIBE ITS REGULATION AND TO OCCUPY A LIMITED FIELD.  IN OTHER
WORDS, SUCH INTENT IS NOT TO BE IMPLIED UNLESS THE ACT OF CONGRESS
FAIRLY INTERPRETED IS IN ACTUAL CONFLICT WITH THE LAW OF THE STATE." 
SAVAGE V. JONES, 225 U.S. 501, 533.  SEE ALSO REID V. COLORADO, 187
U.S. 137; ASBELL V. KANSAS, 209 U.S. 251; WELCH CO. V. NEW HAMPSHIRE,
306 U.S. 79; MAURER V. HAMILTON, 309 U.S. 598. 

IN DETERMINING WHETHER THE STATE HAS IMPOSED AN UNDUE BURDEN ON
INTERSTATE COMMERCE, IT MUST BE BORNE IN MIND THAT THE CONSTITUTION
WHEN "CONFERRING UPON CONGRESS THE REGULATION OF COMMERCE,  ... NEVER
INTENDED TO CUT THE STATES OFF FROM LEGISLATING ON ALL SUBJECTS
RELATING TO THE HEALTH, LIFE, AND SAFETY OF THEIR CITIZENS, THOUGH THE
LEGISLATION MIGHT INDIRECTLY AFFECT THE COMMERCE OF THE COUNTRY. 
LEGISLATION, IN A GREAT VARIETY OF WAYS, MAY AFFECT COMMERCE AND
PERSONS ENGAGED IN IT WITHOUT CONSTITUTING A REGULATION OF IT, WITHIN
THE MEANING OF THE CONSTITUTION."  SHERLOCK V. ALLING, 93 U.S. 99, 103;
AUSTIN V. TENNESSEE, 179 U.S. 343; LOUISVILLE & NASHVILLE R. CO. V.
KENTUCKY, 183 U.S. 503; THE MINNESOTA RATE CASES, 230 U.S. 352; BOSTON
& MAINE R. CO. V. ARMBURG, 285 U.S. 234; COLLINS V. AMERICAN BUSLINES,
INC., 350 U.S. 528.  BUT A STATE MAY NOT IMPOSE A BURDEN WHICH
MATERIALLY AFFECTS INTERSTATE COMMERCE IN AN AREA WHERE UNIFORMITY OF
REGULATION IS NECESSARY.   HALL V. DECUIR, 95 U.S. 485; SOUTHERN
PACIFIC CO. V. ARIZONA, 325 U.S. 761; BIBB V. NAVAJO FREIGHT LINES, 359
U.S. 520. 

ALTHOUGH VERBAL GENERALIZATIONS DO NOT OF THEIR OWN MOTION DECIDE
CONCRETE CASES, IT IS NEVERTHELESS WITHIN THE FRAMEWORK OF THESE BASIC
PRINCIPLES THAT THE ISSUES IN THE PRESENT CASE MUST BE DETERMINED. 

              I. 

FOR MANY YEARS CONGRESS HAS MAINTAINED AN EXTENSIVE AND COMPREHENSIVE
SET OF CONTROLS OVER SHIPS AND SHIPPING.  FEDERAL INSPECTION OF STEAM
VESSELS WAS FIRST REQUIRED IN 1838, 5 STAT. 304, AND THE REQUIREMENT
HAS BEEN CONTINUED EVER SINCE.  5 STAT. 626; 10 STAT. 61; 14 STAT. 227;
16 STAT. 440; 22 STAT. 346; 28 STAT. 699; 32 STAT. 34; 34 STAT. 68; 60
STAT.  1097; 73 STAT. 475.  STEAM VESSELS WHICH CARRY PASSENGERS MUST
PASS INSPECTION ANNUALLY, 46 U.S.C. SEC. 391(A), AND THOSE WHICH DO
NOT, EVERY TWO YEARS.  46 U.S.C. SEC. 391(B).  FAILURE TO MEET THE
STANDARDS INVOKED BY LAW RESULTS IN REVOCATION OF THE INSPECTION
CERTIFICATE, OR REFUSAL TO ISSUE A NEW ONE, 46 U.S.C. SEC. 391(D).  IT
IS UNLAWFUL FOR A VESSEL TO OPERATE WITHOUT SUCH A CERTIFICATE.  46
U.S.C. SEC. 390CA). 

THESE INSPECTIONS ARE BROAD IN NATURE, COVERING "THE BOILERS, UNFIRED
PRESSURE VESSELS, AND APPURTENANCES THEREOF, ALSO THE PROPELLING AND
AUXILIARY MACHINERY, ELECTRICAL APPARATUS AND EQUIPMENT, OF ALL VESSELS
SUBJECT TO INSPECTION  ...  ."  46 U.S.C. SEC. 392(B).  THE LAW
PROVIDES THAT "NO BOILER  ...  SHALL BE ALLOWED TO BE USED IF
CONSTRUCTED IN WHOLE OR IN PART OF DEFECTIVE MATERIAL OR WHICH BECAUSE
OF ITS FORM, DESIGN, WORKMANSHIP, AGE, USE, OR FOR ANY OTHER REASON IS
UNSAFE."  46 U.S.C. SEC. 392(C). 

AS IS APPARENT ON THE FACE OF THE LEGISLATION, HOWEVER, THE PURPOSE
OF THE FEDERAL INSPECTION STATUTES IS TO INSURE THE SEAGOING SAFETY OF
VESSELS SUBJECT TO INSPECTION.  THUS 46 U.S.C. SEC. 392(C) MAKES CLEAR
THAT INSPECTION OF BOILERS AND RELATED EQUIPMENT IS FOR THE PURPOSE OF
SEEING TO IT THAT THE EQUIPMENT "MAY BE SAFELY EMPLOYED IN THE SERVICE
PROPOSED."  THE SAFETY OF PASSENGERS, 46 U.S.C. SEC. 391(A), AND OF THE
CREW, 46 U.S.C. SEC. 391(B), IS THE CRITERION.  THE THRUST OF THE
FEDERAL INSPECTION LAWS IS CLEARLY LIMITED TO AFFORDING PROTECTION FROM
THE PERILS OF MARITIME NAVIGATION.  CF. ACE WATERWAYS V. FLEMING, 98 F.
SUPP.  666.  SEE ALSO STEAMSHIP CO. V. JOLIFFE, 2 WALL.  450. 

BY CONTRAST, THE SOLE AIM OF THE DETROIT ORDINANCE IS THE ELIMINATION
OF AIR POLLUTION TO PROTECT THE HEALTH AND ENHANCE THE CLEANLINESS OF
THE LOCAL COMMUNITY.  CONGRESS RECENTLY RECOGNIZED THE IMPORTANCE AND
LEGITIMACY OF SUCH A PURPOSE, WHEN IN 1955 IT PROVIDED: 

"IN RECOGNITION OF THE DANGERS TO THE PUBLIC HEALTH AND WELFARE,
INJURY TO AGRICULTURAL CROPS AND LIVESTOCK, DAMAGE TO AND DETERIORATION
OF PROPERTY, AND HAZARDS TO AIR AND GROUND TRANSPORTATION, FROM AIR
POLLUTION, IT IS HEREBY DECLARED TO BE THE POLICY OF CONGRESS TO
PRESERVE AND PROTECT THE PRIMARY RESPONSIBILITIES AND RIGHTS OF THE
STATES AND LOCAL GOVERNMENTS IN CONTROLLING AIR POLLUTION, TO SUPPORT
AND AID TECHNICAL RESEARCH TO DEVISE AND DEVELOP METHODS OF ABATING
SUCH POLLUTION, AND TO PROVIDE FEDERAL TECHNICAL SERVICES AND FINANCIAL
AID TO STATE AND LOCAL GOVERNMENT AIR POLLUTION CONTROL AGENCIES AND
OTHER PUBLIC OR PRIVATE AGENCIES AND INSTITUTIONS IN THE FORMULATION
AND EXECUTION OF THEIR AIR POLLUTION ABATEMENT RESEARCH PROGRAMS."  69
STAT. 322; 42 U.S.C. SEC. 1857. 

CONGRESSIONAL RECOGNITION THAT THE PROBLEM OF AIR POLLUTION IS
PECULIARLY A MATTER OF STATE AND LOCAL CONCERN IS MANIFEST IN THIS
LEGISLATION.  SUCH RECOGNITION IS UNDERLINED IN THE SENATE COMMITTEE
REPORT: 

"THE COMMITTEE RECOGNIZES THAT IT IS THE PRIMARY RESPONSIBILITY OF
STATE AND LOCAL GOVERNMENTS TO PREVENT AIR POLLUTION.  THE BILL DOES
NOT PROPOSE ANY EXERCISE OF POLICE POWER BY THE FEDERAL GOVERNMENT AND
NO PROVISION IN IT INVADES THE SOVEREIGNTY OF STATES, COUNTIES OR
CITIES."  S. REP. NO. 389, 84TH CONG., 1ST SESS. 3. 

WE CONCLUDE THAT THERE IS NO OVERLAP BETWEEN THE SCOPE OF THE FEDERAL
SHIP INSPECTION LAWS AND THAT OF THE MUNICIPAL ORDINANCE HERE
INVOLVED.  (FN2)  FOR THIS REASON WE CANNOT FIND THAT THE FEDERAL
INSPECTION LEGISLATION HAS PRE-EMPTED LOCAL ACTION.  TO HOLD OTHERWISE
WOULD BE TO IGNORE THE TEACHING OF THIS COURT'S DECISIONS WHICH ENJOIN
SEEKING OUT CONFLICTS BETWEEN STATE AND FEDERAL REGULATION WHERE NONE
CLEARLY EXISTS.  SAVAGE V. JONES, 225 U.S. 501; WELCH CO. V. NEW
HAMPSHIRE, 306 U.S. 79; MAURER V. HAMILTON, 309 U.S. 598. 

AN ADDITIONAL ARGUMENT IS ADVANCED, HOWEVER, BASED NOT UPON THE MERE
EXISTENCE OF THE FEDERAL INSPECTION STANDARDS, BUT UPON THE FACT THAT
THE APPELLANT'S VESSELS WERE ACTUALLY LICENSED, 46 U.S.C. SEC. 263, AND
ENROLLED, 46 U.S.C. SECS. 259-260, BY THE NATIONAL GOVERNMENT.  IT IS
ASSERTED THAT THE VESSELS HAVE THUS BEEN GIVEN A DOMINANT FEDERAL RIGHT
TO THE USE OF THE NAVIGABLE WATERS OF THE UNITED STATES, FREE FROM THE
LOCAL IMPEDIMENT THAT WOULD BE IMPOSED BY THE DETROIT ORDINANCE. 

THE SCOPE OF THE PRIVILEGE GRANTED BY THE FEDERAL LICENSING SCHEME
HAS BEEN WELL DELINEATED.  A STATE MAY NOT EXCLUDE FROM ITS WATERS A
SHIP OPERATING UNDER A FEDERAL LICENSE.  GIBBONS V. OGDEN, 9 WHEAT. 
1.  A STATE MAY NOT REQUIRE A LOCAL OCCUPATION LICENSE, IN ADDITION TO
THAT FEDERALLY GRANTED, AS A CONDITION PRECEDENT TO THE USE OF ITS
WATERS.  MORAN V. NEW ORLEANS, 112 U.S. 69.  WHILE AN ENROLLED AND
LICENSED VESSEL MAY BE REQUIRED TO SHARE THE COSTS OF BENEFITS IT
ENJOYS, HUSE V. GLOVER, 119 U.S. 543, AND TO PAY FAIR TAXES IMPOSED BY
ITS DOMICILE, TRANSPORTATION CO. V. WHEELING, 99 U.S. 273, IT CANNOT BE
SUBJECTED TO LOCAL LICENSE IMPOSTS EXACTED FOR THE USE OF A NAVIGABLE
WATERWAY, HARMAN V. CHICAGO, 147 U.S. 396.  SEE ALSO SINNOT V.
DAVENPORT, 22 HOW.  227. 

THE MERE POSSESSION OF A FEDERAL LICENSE, HOWEVER, DOES NOT IMMUNIZE
A SHIP FROM THE OPERATION OF THE NORMAL INCIDENTS OF LOCAL POLICE
POWER, NOT CONSTITUTING A DIRECT REGULATION OF COMMERCE.  THUS, A
FEDERALLY LICENSED VESSEL IS NOT, AS SUCH, EXEMPT FROM LOCAL PILOTAGE
LAWS, COOLEY V. BOARD OF WARDENS OF PORT OF PHILADELPHIA, 12 HOW.  299,
OR LOCAL QUARANTINE LAWS, MORGAN'S STEAMSHIP CO. V. LOUISIANA BOARD OF
HEALTH, 118 U.S. 455, OR LOCAL SAFETY INSPECTIONS, KELLY V. WASHINGTON,
302 U.S. 1, OR THE LOCAL REGULATION OF WHARVES AND DOCKS, PACKET CO. V.
CATLETTSBURG, 105 U.S. 559.  INDEED THIS COURT HAS GONE SO FAR AS TO
HOLD THAT A STATE, IN THE EXERCISE OF ITS POLICE POWER, MAY ACTUALLY
SEIZE AND PRONOUNCE THE FORFEITURE OF A VESSEL "LICENSED FOR THE
COASTING TRADE, UNDER THE LAWS OF THE UNITED STATES, WHILE ENGAGED IN
THAT TRADE."  SMITH V. MARYLAND, 18 HOW.  71, 74.  THE PRESENT CASE
OBVIOUSLY DOES NOT EVEN APPROACH SUCH AN EXTREME, FOR THE DETROIT
ORDINANCE REQUIRES NO MORE THAN COMPLIANCE WITH AN ORDERLY AND
REASONABLE SCHEME OF COMMUNITY REGULATION.  THE ORDINANCE DOES NOT
EXCLUDE A LICENSED VESSEL FROM THE PORT OF DETROIT, NOR DOES IT DESTROY
THE RIGHT OF FREE PASSAGE.  WE CANNOT HOLD THAT THE LOCAL REGULATION SO
BURDENS THE FEDERAL LICENSE AS TO BE CONSTITUTIONALLY INVALID. 
                                   II. 

THE CLAIM THAT THE DETROIT ORDINANCE, QUITE APART FROM THE EFFECT OF
FEDERAL LEGISLATION, IMPOSES AS TO THE APPELLANT'S SHIPS AN UNDUE
BURDEN ON INTERSTATE COMMERCE NEEDS NO EXTENDED DISCUSSION.  STATE
REGULATION, BASED ON THE POLICE POWER, WHICH DOES NOT DISCRIMINATE
AGAINST INTERSTATE COMMERCE OR OPERATE TO DISRUPT ITS REQUIRED
UNIFORMITY, MAY CONSTITUTIONALLY STAND.  HENNINGTON V. GEORGIA, 163
U.S. 299; LAKE SHORE & MICH. SOUTH.  R. CO. V. OHIO, 173 U.S. 285;
PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMM., 252 U.S. 23; MILK BOARD
V. EISENBERG CO., 306 U.S. 346; BOB-LO EXCURSION CO. V. MICHIGAN, 333
U.S. 28. 

IT HAS NOT BEEN SUGGESTED THAT THE LOCAL ORDINANCE, APPLICABLE ALIKE
TO "ANY PERSON, FIRM OR CORPORATION" WITHIN THE CITY, DISCRIMINATES
AGAINST INTERSTATE COMMERCE AS SUCH.  IT IS A REGULATION OF GENERAL
APPLICATION, DESIGNED TO BETTER THE HEALTH AND WELFARE OF THE
COMMUNITY.  AND WHILE THE APPELLANT ARGUES THAT OTHER LOCAL GOVERNMENTS
MIGHT IMPOSE DIFFERING REQUIREMENTS AS TO AIR POLLUTION, IT HAS POINTED
TO NONE.  THE RECORD CONTAINS NOTHING TO SUGGEST THE EXISTENCE OF ANY
SUCH COMPETING OR CONFLICTING LOCAL REGULATIONS.  CF. BIBB V. NAVAJO
FREIGHT LINES, 359 U.S. 520.  WE CONCLUDE THAT NO IMPERMISSIBLE BURDEN
ON COMMERCE HAS BEEN SHOWN.  THE JUDGMENT IS AFFIRMED. 

FN1  THE DETROIT LEGISLATION ALSO CONTAINS PROVISIONS MAKING IT
UNLAWFUL TO OPERATE ANY COMBUSTION EQUIPMENT IN THE CITY WITHOUT A
CERTIFICATE, SEC. 2.16, PROVIDING FOR AN ANNUAL INSPECTION OF ALL SUCH
EQUIPMENT USED IN THE CITY, SEC. 2.17, AND FURTHER PROVIDING FOR THE
SEALING OF EQUIPMENT IN THE EVENT THAT THE INSPECTION REQUIREMENTS ARE
REPEATEDLY IGNORED, SEC. 2.20.  THERE IS NOTHING IN THE RECORD TO
INDICATE THAT THE CITY HAS AT ANY TIME ATTEMPTED TO ENFORCE THESE
PROVISIONS WITH RESPECT TO THE APPELLANT'S SHIPS.  ACCORDINGLY, WE DO
NOT REACH THE QUESTION OF THE VALIDITY OF THE INSPECTION SECTIONS AS
THEY MIGHT BE APPLIED TO APPELLANT, BUT LIMIT OUR CONSIDERATION SOLELY
TO WHAT IS PRESENTED UPON THIS RECORD - THE ENFORCEMENT OF THE CRIMINAL
PROVISIONS OF THE CODE FOR VIOLATION OF THE SMOKE EMISSION PROVISIONS. 

FN2  COMPARE, NAPIER V. ATLANTIC COAST LINE R. CO., WHERE THE COURT
CONCLUDED THAT "THE LOCOMOTIVE BOILER INSPECTION ACT  ...  WAS INTENDED
TO OCCUPY THE FIELD."  272 U.S. 605, 613.  MR. JUSTICE DOUGLAS, WITH
WHOM MR. JUSTICE FRANKFURTER CONCURS, DISSENTING. 

THE COURT TREATS THIS CONTROVERSY AS IF IT WERE MERELY AN INSPECTION
CASE WITH THE CITY OF DETROIT SUPPLEMENTING A FEDERAL INSPECTION SYSTEM
AS THE STATE OF WASHINGTON DID IN KELLY V. WASHINGTON, 302 U.S. 1. 
THERE A STATE INSPECTION SYSTEM TOUCHED MATTERS "WHICH THE FEDERAL LAWS
AND REGULATIONS" LEFT "UNTOUCHED."  ID., AT 13.  THIS IS NOT THAT TYPE
OF CASE.  NOR IS THIS THE RARE CASE WHERE STATE LAW ADOPTS THE
STANDARDS AND REQUIREMENTS OF FEDERAL LAW AND IS ALLOWED TO EXACT A
PERMIT IN ADDITION TO THE ONE DEMANDED BY FEDERAL LAW.  CALIFORNIA V.
ZOOK, 336 U.S. 725, 735.  HERE WE HAVE A CRIMINAL PROSECUTION AGAINST A
SHIPOWNER AND OFFICERS OF TWO OF ITS VESSELS FOR USING THE VERY
EQUIPMENT ON THESE VESSELS WHICH THE FEDERAL GOVERNMENT SAYS MAY BE
USED.  AT STAKE ARE A POSSIBLE FINE OF $100 ON THE OWNER AND BOTH A
FINE AND A 30-DAY JAIL SENTENCE ON THE OFFICERS. 

APPELLANT HAS A FEDERAL CERTIFICATE FOR EACH OF ITS VESSELS - S.S.
JOHN W. BOARDMAN, S.S.S.T. CRAPO, AND OTHERS.  THE ONE ISSUED ON MARCH
21, 1956, BY THE UNITED STATES COAST GUARD FOR S.S.S.T. CRAPO IS
TYPICAL.  THE CERTIFICATE STATES "THE SAID VESSEL IS PERMITTED TO BE
NAVIGATED FOR ONE YEAR ON THE GREAT LAKES."  THE CERTIFICATE SPECIFIES
THE BOILERS WHICH ARE AND MAY BE USED - "MAIN BOILERS NUMBER 3, YEAR
BUILT 1927, MFR.  MANITOWOC BOILER WKS."  IT ALSO SPECIFIES THE FUEL
WHICH IS USED AND IS TO BE USED IN THOSE BOILERS - "FUEL COAL." 

APPELLANT, OPERATING THE VESSEL IN WATERS AT THE DETROIT DOCK, IS
ABOUT TO BE FINED CRIMINALLY FOR USING THE PRECISE EQUIPMENT COVERED BY
THE FEDERAL CERTIFICATE BECAUSE, IT IS SAID, THE USE OF THAT EQUIPMENT
WILL VIOLATE A SMOKE ORDINANCE OF THE CITY OF DETROIT. 

THE FEDERAL STATUTES GIVE THE COAST GUARD THE POWER TO INSPECT "THE
BOILERS" OF FREIGHT VESSELS EVERY TWO YEARS, (FN1) AND PROVIDE THAT
WHEN THE COAST GUARD APPROVES THE VESSEL AND HER EQUIPMENT THROUGHOUT,
A CERTIFICATE TO THAT EFFECT SHALL BE MADE.  (FN2) 

THE REQUIREMENTS OF THE DETROIT SMOKE ORDINANCE ARE SQUARELY IN
CONFLICT WITH THE FEDERAL STATUTE.   SECTION 2.2A OF THE ORDINANCE
PROHIBITS THE EMISSION OF THE KIND OF SMOKE WHICH CANNOT BE AT ALL
TIMES PREVENTED BY VESSELS EQUIPPED WITH HAND-FIRED SCOTCH MARINE
BOILERS SUCH AS APPELLANT'S VESSELS USE.  SECTION 2.16 OF THE ORDINANCE
MAKES IT UNLAWFUL TO USE ANY FURNACE OR OTHER COMBUSTION EQUIPMENT OR
DEVICE IN THE CITY WITHOUT A CERTIFICATE OF OPERATION WHICH ISSUES ONLY
AFTER INSPECTION.  SECTION 2.17 PROVIDES FOR AN ANNUAL INSPECTION OF
EVERY FURNACE OR OTHER COMBUSTION EQUIPMENT USED WITHIN THE CITY. 
THREE OR MORE VIOLATIONS OF THE ORDINANCE WITHIN ANY CONSECUTIVE 12
MONTH PERIOD HE SHALL BE NOTIFIED TO SHOW CAUSE BEFORE THE COMMISSIONER
WHY THE EQUIPMENT SHOULD NOT BE SEALED.  AT THE HEARING, IF THE
COMMISSIONER FINDS THAT ADEQUATE CORRECTIVE MEANS HAVE NOT BEEN
EMPLOYED TO REMEDY THE SITUATION, THE EQUIPMENT SHALL BE SEALED. 
FOR NOT MORE THAN 30 DAYS OR BOTH UPON CONVICTION OF ANY VIOLATION OF
ANY PROVISION OF THE ORDINANCE, AND EACH DAY A VIOLATION IS PERMITTED
TO EXIST CONSTITUTES A SEPARATE OFFENSE. 

THUS IT IS PLAIN THAT THE ORDINANCE REQUIRES NOT ONLY THE INSPECTION
AND APPROVAL OF EQUIPMENT WHICH HAS BEEN INSPECTED AND APPROVED BY THE
COAST GUARD BUT ALSO THE SEALING OF EQUIPMENT, EVEN THOUGH IT HAS BEEN
APPROVED BY THE COAST GUARD.  UNDER THE DETROIT ORDINANCE A CERTIFICATE
OF OPERATION WOULD NOT ISSUE FOR A HAND-FIRED SCOTCH MARINE BOILER,
EVEN THOUGH IT HAD BEEN APPROVED BY THE COAST GUARD.  (FN3)  IN OTHER
WORDS, THIS EQUIPMENT APPROVED AND LICENSED BY THE FEDERAL GOVERNMENT
FOR USE ON NAVIGABLE WATERS CANNOT PASS MUSTER UNDER LOCAL LAW. 

IF LOCAL LAW REQUIRED FEDERALLY LICENSED VESSELS TO OBSERVE LOCAL
SPEED LAWS, OBEY LOCAL TRAFFIC REGULATIONS, OR DOCK AT CERTAIN TIMES OR
UNDER PRESCRIBED CONDITIONS, WE WOULD HAVE LOCAL LAWS NOT AT WAR WITH
THE FEDERAL LICENSE, BUT COMPLEMENTARY TO IT.  IN KELLY V. WASHINGTON,
SUPRA, AT 14-15, THE COURT MARKED PRECISELY THAT DISTINCTION.  WHILE IT
ALLOWED STATE INSPECTION OF HULL AND MACHINERY OF TUGS OVER AND ABOVE
THAT REQUIRED BY FEDERAL STATUTES, IT NOTED THAT STATE RULES WHICH
CHANGED THE FEDERAL STANDARDS "FOR THE STRUCTURE AND EQUIPMENT OF
VESSELS" WOULD MEET A DIFFERENT FATE: 

"THE STATE LAW IS A COMPREHENSIVE CODE.  WHILE IT EXCEPTS VESSELS
WHICH ARE SUBJECT TO INSPECTION UNDER THE LAWS OF THE UNITED STATES, IT
HAS PROVISIONS WHICH MAY BE DEEMED TO FALL WITHIN THE CLASS OF
REGULATIONS WHICH CONGRESS ALONE CAN PROVIDE.  FOR EXAMPLE, CONGRESS
MAY ESTABLISH STANDARDS AND DESIGNS FOR THE STRUCTURE AND EQUIPMENT OF
VESSELS, AND MAY PRESCRIBE RULES FOR THEIR OPERATION, WHICH COULD NOT
PROPERLY BE LEFT TO THE DIVERSE ACTION OF THE STATES.  THE STATE OF
WASHINGTON MIGHT PRESCRIBE STANDARDS, DESIGNS, EQUIPMENT AND RULES OF
ONE SORT, OREGON ANOTHER, CALIFORNIA ANOTHER, AND SO ON.  BUT IT DOES
NOT FOLLOW THAT IN ALL RESPECTS THE STATE ACT MUST FAIL." 

THIS CASE, LIKE NAPIER V. ATLANTIC COAST LINE R. CO., 272 U.S. 605,
INVOLVES THE COLLISION BETWEEN A LOCAL LAW AND A FEDERAL LAW WHICH
GIVES A FEDERAL AGENCY THE POWER TO SPECIFY OR APPROVE THE EQUIPMENT TO
BE USED BY A FEDERAL LICENSEE.  IN THAT CASE ONE STATE REQUIRED
AUTOMATIC FIRE DOORS ON LOCOMOTIVES OF INTERSTATE TRAINS AND ANOTHER
STATE REQUIRED CAB CURTAINS DURING THE WINTER MONTHS.  THE INTERSTATE
COMMERCE COMMISSION, THOUGH IT HAD THE POWER TO DO SO UNDER THE BOILER
INSPECTION ACT, HAD NEVER REQUIRED A PARTICULAR KIND OF FIRE DOOR OR
CAB CURTAIN.  THE COURT, SPEAKING THROUGH MR. JUSTICE BRANDEIS, SAID,
AT 612-613: 

"THE FEDERAL AND THE STATE STATUTES ARE DIRECTED TO THE SAME SUBJECT
THE EQUIPMENT OF LOCOMOTIVES.  THEY OPERATE UPON THE SAME OBJECT.  IT
IS SUGGESTED THAT THE POWER DELEGATED TO THE COMMISSION HAS BEEN
EXERTED ONLY IN RESPECT TO MINOR CHANGES OR ADDITIONS.  BUT THIS, IF
TRUE, IS NOT OF LEGAL SIGNIFICANCE.  IT IS ALSO URGED THAT, EVEN IF THE
COMMISSION HAS POWER TO PRESCRIBE AN AUTOMATIC FIREBOX DOOR AND A CAB
CURTAIN, IT HAS NOT DONE SO; AND THAT IT HAS MADE NO OTHER REQUIREMENT
INCONSISTENT WITH THE STATE LEGISLATION.  THIS, ALSO, IF TRUE, IS
WITHOUT LEGAL SIGNIFICANCE.  THE FACT THAT THE COMMISSION HAS NOT SEEN
FIT TO EXERCISE ITS AUTHORITY TO THE FULL EXTENT CONFERRED, HAS NO
BEARING UPON THE CONSTRUCTION OF THE ACT DELEGATING THE POWER.  WE HOLD
THAT STATE LEGISLATION IS PRECLUDED, BECAUSE THE BOILER INSPECTION ACT,
AS WE CONSTRUE IT, WAS INTENDED TO OCCUPY THE FIELD." 

HERE THE COAST GUARD WOULD BE ENTITLED TO INSIST ON DIFFERENT
EQUIPMENT.  BUT IT HAS NOT DONE SO. THE BOATS OF APPELLANT, THEREFORE,
HAVE CREDENTIALS GOOD FOR ANY PORT; AND I WOULD NOT ALLOW THIS LOCAL
SMOKE ORDINANCE TO WORK IN DEROGATION OF THEM.  THE FACT THAT THE
FEDERAL GOVERNMENT IN CERTIFYING EQUIPMENT APPLIES STANDARDS OF SAFETY
FOR SEAGOING VESSELS, WHILE DETROIT APPLIES STANDARDS OF AIR POLLUTION
SEEMS IMMATERIAL.  FEDERAL PRE-EMPTION OCCURS WHEN THE BOILERS AND FUEL
TO BE USED IN THE VESSELS ARE SPECIFIED IN THE CERTIFICATE.  NO STATE
AUTHORITY CAN, IN MY VIEW, CHANGE THOSE SPECIFICATIONS.  YET THAT IS IN
EFFECT WHAT IS ALLOWED HERE. 

AS WE HAVE SEEN, THE DETROIT ORDINANCE CONTAINS PROVISIONS MAKING IT
UNLAWFUL TO OPERATE APPELLANT'S EQUIPMENT WITHOUT A CERTIFICATE FROM
THE CITY AND PROVIDING FOR THE SEALING OF THE EQUIPMENT IN CASE OF
THREE OR MORE VIOLATIONS WITHIN ANY 12-MONTH PERIOD.  THE COURT SAYS
THAT THOSE SANCTIONS ARE NOT PRESENTLY IN ISSUE, THAT IT RESERVES
DECISION AS TO THEIR VALIDITY, AND THAT IT CONCERNS ITSELF ONLY WITH
"THE ENFORCEMENT OF THE CRIMINAL PROVISIONS" OF THE ORDINANCE.  YET BY
WHAT AUTHORITY CAN A LOCAL GOVERNMENT FINE PEOPLE OR SEND THEM TO JAIL
FOR USING IN INTERSTATE COMMERCE THE PRECISE EQUIPMENT WHICH THE
FEDERAL REGULATORY AGENCY HAS CERTIFIED AND APPROVED?  THE BURDEN OF
THESE CRIMINAL SANCTIONS ON THE OWNERS AND OFFICERS, PARTICULARLY AS IT
INVOLVES THE RISK OF IMPRISONMENT, MAY INDEED BE FAR MORE SERIOUS THAN
A MERE SEALING OF THE EQUIPMENT.  YET WHETHER FINE OR IMPRISONMENT IS
CONSIDERED, THE EFFECT ON THE FEDERAL CERTIFICATE WILL BE CRIPPLING. 
HOWEVER THE ISSUE IN THE PRESENT CASE IS STATED IT COMES DOWN TO MAKING
CRIMINAL IN THE PORT OF DETROIT THE USE OF A CERTIFICATE ISSUED UNDER
PARAMOUNT FEDERAL LAW.  MINTZ V. BALDWIN, 289 U.S. 346, UPHELD THE
REQUIREMENT OF A STATE INSPECTION CERTIFICATE WHERE A FEDERAL
CERTIFICATE MIGHT HAVE BEEN, BUT WAS NOT, ISSUED.  CF. CALIFORNIA V.
THOMPSON, 313 U.S. 109, 112.  NEVER BEFORE, I BELIEVE, HAVE WE
RECOGNIZED THE RIGHT OF LOCAL LAW TO MAKE THE USE OF AN UNQUESTIONABLY
LEGAL FEDERAL LICENSE A CRIMINAL OFFENSE. 

WHAT WE DO TODAY IS IN DISREGARD OF THE DOCTRINE LONG ACCEPTED AND
SUCCINCTLY STATED IN THE 1851 TERM IN PENNSYLVANIA V. WHEELING &
BELMONT BRIDGE CO., 13 HOW.  518, 566, "NO STATE LAW CAN HINDER OR
OBSTRUCT THE FREE USE OF A LICENSE GRANTED UNDER AN ACT OF CONGRESS." 
(FN4)  THE CONFUSION AND BURDEN ARISING FROM THE IMPOSITION BY ONE
STATE OF REQUIREMENTS FOR EQUIPMENT WHICH THE FEDERAL GOVERNMENT HAS
APPROVED WAS EMPHASIZED IN KELLY V. WASHINGTON, SUPRA, IN THE PASSAGE
ALREADY QUOTED.   THE REQUIREMENTS OF DETROIT MAY BE TOO LAX FOR
ANOTHER PORT.  CF. PEOPLE V. CUNARD WHITE STAR, LTD., 280 N.Y. 413, 21
N.E.2D 489.  THE VARIETY OF REQUIREMENTS FOR EQUIPMENT WHICH THE STATES
MAY PROVIDE IN ORDER TO MEET THEIR AIR POLLUTION NEEDS UNDERLINES THE
IMPORTANCE OF LETTING THE COAST GUARD LICENSE SERVE AS AUTHORITY FOR
THE VESSEL TO USE, IN ALL OUR PORTS, THE EQUIPMENT WHICH IT CERTIFIES. 

FN1  46 U.S.C. SEC. 392. 

FN2  46 U.S.C. SEC. 399 PROVIDES IN PART: 

"WHEN THE INSPECTION OF A STEAM VESSEL IS COMPLETED AND THE SECRETARY
OF THE DEPARTMENT IN WHICH THE COAST GUARD IS OPERATING APPROVES THE
VESSEL AND HER EQUIPMENT THROUGHOUT, HE SHALL MAKE AND SUBSCRIBE A
CERTIFICATE TO THAT EFFECT." 

FN3  THE TRIAL COURT IN ITS OPINION SAID: 

"IT IS AGREED IT IS IMPOSSIBLE TO PREVENT EMISSION OF THE KIND OF
SMOKE PROHIBITED BY THE SMOKE ORDINANCE IF THE VESSEL IS EQUIPPED WITH
HAND-FIRED SCOTCH MARINE BOILERS.  THE BOARDMAN HAS TWO BOILERS EACH
WITH TWO DOORS AND ONE STEAM AIR JET OVER EACH DOOR.  THE CRAPO HAS
THREE BOILERS, EACH WITH TWO DOORS AND ONE STEAM AIR JET OVER EACH
DOOR.  THE STEAM JETS BEING INSTALLED AT THE SUGGESTION OF BENJAMIN
LINSKY, FORMER CHIEF OF THE BUREAU OF SMOKE ABATEMENT FOR THE CITY. 

"TESTIMONY SHOWED ALSO THAT THE PLAINTIFF USED A CHEMICAL IN AN
ATTEMPT TO REDUCE THE SMOKE.  PLAINTIFF URGES IT HAS DONE EVERYTHING
THAT IT COULD POSSIBLY DO WITH THE EQUIPMENT IT HAS TO PREVENT THE
EMISSION OF SMOKE.  IT WAS SHOWN ON TRIAL THAT THE FLEET IS SUBJECT TO
PERIODIC INSPECTION BY THE COAST GUARD, WHICH ISSUES A SEARCH OF
INSPECTION.  THE CRAPO IN 1955, DOCKED AT DETROIT TWENTY-TWO TIMES FOR
AN AVERAGE DOCKING TIME OF 23.9 HOURS AND THE BOARDMAN DOCKED AT
DETROIT 25 TIMES THAT EYAR WITH AN AVERAGE STAY OF 16.2 HOURS.  BOTH
VESSELS WERE CONSTANTLY ENGAGED IN INTERSTATE AND FOREIGN COMMERCE
DURING THIS PERIOD." 

FN4  SMITH V. MARYLAND, 18 HOW.  71, IS NOT TO THE CONTRARY.  THERE A
VESSEL ENROLLED UNDER THE LAWS OF THE UNITED STATES WAS ALLOWED TO BE
FORFEITED BY MARYLAND FOR DREDGING FOR OYSTERS IN VIOLATION OF MARYLAND
LAW.  BUT THE ENROLLMENT OF VESSELS SERVES ONLY A LIMITED PURPOSE. 
SMITH V. MARYLAND, SUPRA, WAS EXPLAINED IN STEWART & CO. V. RIVARA, 274
U.S. 614.  THE COURT SAID, "THE PURPOSE OF THE ENROLLMENT OF VESSELS IS
TO GIVE TO THEM THE PRIVILEGES OF AMERICAN VESSELS AS WELL AS THE
PROTECTION OF OUR FLAG."  ID., AT 618.  ENROLLMENT WITHOUT MORE DID NOT
GIVE THE ENROLLED VESSEL A LICENSE TO DISREGARD THE VARIETY OF
PILOTAGE, HEALTH AND OTHER SUCH LOCAL LAWS WHICH THE OPINION OF THE
COURT IN THE FAMOUS CASE OF COOLEY V. BOARD OF PORT WARDENS, 12 HOW. 
299 (WRITTEN BY MR. JUSTICE CURTIS WHO ALSO WROTE FOR THE COURT IN
SMITH V. MARYLAND), HAD LEFT TO THE STATES TO BE OBEYED BY ALL
VESSELS.  THE LOCAL REGULATIONS APPROVED IN THE COOLEY CASE NEVER
QUALIFIED THE LICENSE TO PLY AS A VESSEL NOR PENALIZED ITS MOVEMENT ON
NAVIGABLE WATERS.  THE FEDERAL LICENSE IN THE INSTANT CASE, HOWEVER,
SPECIFICALLY DESCRIBES THE ONLY EQUIPMENT AND FUEL WHICH THESE VESSELS
ARE ALLOWED TO USE, AND DETROIT IS PERMITTED TO MAKE THEIR USE
CRIMINAL. 
..END :

















PHILLIPS V. NEW YORK 362 U.S. 456 


NO. 497.  ARGUED APRIL 18, 1960 - DECIDED APRIL 25, 1960 - CERTIORARI
DISMISSED AS IMPROVIDENTLY GRANTED.  - REPORTED BELOW: 6 N.Y.2D 788,
159 N.E.2D 677. 


PHILLIPS V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

AFTER HEARING ORAL ARGUMENT AND FULLY EXAMINING THE RECORD WHICH WAS
ONLY PARTIALLY SET FORTH IN THE PETITION FOR CERTIORARI, WE CONCLUDE
THAT THE TOTALITY OF CIRCUMSTANCES AS THE RECORD MAKES THEM MANIFEST
DID NOT WARRANT BRINGING THE CASE HERE.  ACCORDINGLY, THE WRIT IS
DISMISSED AS IMPROVIDENTLY GRANTED. 
..END :













CERMINARO V. URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH 362 U.S. 457 


NO. 654, MISC.  DECIDED APRIL 25, 1960 - APPEAL DISMISSED - REPORTED
BELOW:  F. SUPP. - .


CERMINARO V. URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :

















CLEVELAND ELECTRIC ILLUMINATING CO. V. CITY OF EUCLID, OHIO 362 U.S.
457 


NO. 740.  DECIDED APRIL 25, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  170 OHIO ST. 45, 162
N.E.2D 125. 


CLEVELAND ELECTRIC ILLUMINATING CO. V. CITY OF EUCLID, OHIO, ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















ORDER OF RAILROAD TELEGRAPHERS V. CHICAGO & NORTH WESTERN RAILWAY CO.
362 U.S. 330 


NO. 100.  ARGUED MARCH 1-2, 1960 - DECIDED APRIL 18, 1960 - 264 F.2D
254, REVERSED. 


AN INTERSTATE RAILROAD APPLIED TO THE PUBLIC UTILITY COMMISSIONS OF
FOUR STATES FOR PERMISSION TO ABOLISH OR CONSOLIDATE MANY OF ITS LITTLE
USED STATIONS.  THE LABOR UNION WHICH WAS THE BARGAINING AGENT OF THE
STATION AGENTS AND TELEGRAPHERS WHOSE JOBS WOULD BE ABOLISHED NOTIFIED
THE RAILROAD UNDER SEC. 6 OF THE RAILWAY LABOR ACT OF A DESIRE TO
NEGOTIATE FOR AN AMENDMENT TO ITS CURRENT BARGAINING AGREEMENT WHICH
WOULD PREVENT THE RAILROAD FROM ABOLISHING ANY POSITION WITHOUT THE
UNION'S CONSENT, AND IT THREATENED TO STRIKE IF THE RAILROAD REFUSED TO
NEGOTIATE ABOUT THE AMENDMENT.  THE RAILROAD SUED IN A FEDERAL DISTRICT
COURT TO ENJOIN SUCH A STRIKE.  HELD:  THE CASE INVOLVES OR GROWS OUT
OF A "LABOR DISPUTE" WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT,
AND THE DISTRICT COURT WAS WITHOUT JURISDICTION TO ENJOIN THE STRIKE
PERMANENTLY.  PP. 331-343. 

(A)  THIS CONTROVERSY WAS A "LABOR DISPUTE," AS DEFINED IN SEC. 13(C)
OF THE NORRIS-LAGUARDIA ACT.   PP. 335-338. 

(B)  THE STRIKE HERE INVOLVED COULD NOT BE ENJOINED ON THE THEORY
THAT IT WAS UNLAWFUL FOR THE UNION TO SEEK TO BARGAIN ABOUT THE
CONSOLIDATION OR ABANDONMENT OF RAILROAD STATIONS, WHICH ARE WITHIN THE
CONTROL OF STATE REGULATORY COMMISSIONS.  PP. 338-341. 

(C)  THE DISPUTE HERE INVOLVED WAS NOT A "MINOR" ONE WHICH THE
RAILWAY LABOR ACT REQUIRES TO BE HEARD BY THE NATIONAL RAILROAD
ADJUSTMENT BOARD.  P. 341. 

ORDER OF RAILROAD TELEGRAPHERS ET AL. V. CHICAGO & NORTH WESTERN RAILWAY
CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ACCORDING TO THE VERIFIED COMPLAINT FILED IN A UNITED STATES DISTRICT
COURT IN ILLINOIS BY THE RESPONDENT, CHICAGO & NORTH WESTERN RAILWAY
COMPANY, AGAINST THE PETITIONERS, THE ORDER OF RAILROAD TELEGRAPHERS
AND ITS OFFICIALS, "THIS IS AN ACTION FOR INJUCTION TO RESTRAIN AND
ENJOIN THE CALLING AND CARRYING OUT OF A WRONGFUL AND UNLAWFUL STRIKE
OR WORK STOPPAGE ON PLAINTIFF'S RAILROAD."  SECTION 4 OF THE NORRIS
LAGUARDIA ACT PROVIDES, HOWEVER, THAT "NO COURT OF THE UNITED STATES
SHALL HAVE JURISDICTION TO ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR
PERMANENT INJUNCTION IN ANY CASE INVOLVING OR GROWING OUT OF ANY LABOR
DISPUTE TO PROHIBIT ANY PERSON OR PERSONS  ...  FROM  ...  (A) CEASING
OR REFUSING TO PERFORM ANY WORK OR TO REMAIN IN ANY RELATION OF
EMPLOYMENT; ...  ."  (FN1) THE MAIN QUESTION IN THIS CASE THEN WAS, AND
STILL IS, WHETHER THIS PROHIBITION OF THE NORRIS-LAGUARDIA ACT BARS AN
INJUNCTION IN THE CIRCUMSTANCES OF THIS CASE. 

RESPONDENT RAILROAD, OWNING AND OPERATING A RAIL SYSTEM OF OVER 9,000
MILES IN THE STATES OF ILLINOIS, WISCONSIN, IOWA, MINNESOTA, MICHIGAN,
NEBRASKA, SOUTH DAKOTA, NORTH DAKOTA, AND WYOMING, IS AN INTEGRAL PART
OF THE NATIONWIDE RAILWAY SYSTEM IMPORTANT TO THE TRANSPORTATION OF
PASSENGERS AND FREIGHT IN INTERSTATE COMMERCE.  WHEN THE RAILROAD BEGAN
OPERATIONS, ABOUT 100 YEARS AGO, TRAFFIC WAS SUCH THAT RAILROAD
STATIONS WERE ESTABLISHED ABOUT 7 TO 10 MILES APART.  TRUCKS,
AUTOMOBILES, AIRPLANES, BARGES, PIPELINES AND MODERN ROADS HAVE REDUCED
THE AMOUNT OF RAILROAD TRAFFIC SO THAT THE WORK NOW PERFORMED AT MANY
OF THESE STATIONS BY AGENTS IS LESS THAN ONE HOUR DURING A NORMAL EIGHT
HOUR DAY.  MAINTENANCE OF SO MANY AGENCIES WHERE COMPANY EMPLOYEES DO
SO LITTLE WORK, THE COMPLAINT ALLEGES, IS WASTEFUL AND CONSEQUENTLY IN
1957 THE RAILROAD FILED PETITIONS WITH THE PUBLIC UTILITY COMMISSIONS
IN FOUR OF THE NINE STATES IN WHICH IT OPERATED ASKING PERMISSION TO
INSTITUTE A "CENTRAL AGENCY PLAN WHEREBY CERTAIN STATIONS WOULD BE MADE
CENTRAL AGENCIES  ...  "  AND OTHERS ABOLISHED.  THE PLAN WOULD
NECESSARILY RESULT IN LOSS OF JOBS FOR SOME OF THE STATION AGENTS AND
TELEGRAPHERS, MEMBERS OF THE PETITIONER UNION.  A FEW WEEKS AFTER THE
STATE PROCEEDINGS WERE FILED AND BEFORE ANY DECISION HAD BEEN MADE, THE
PETITIONER UNION, THE DULY RECOGNIZED, CERTIFIED AND ACTING COLLECTIVE
BARGAINING AGENT FOR THE RAILROAD'S EMPLOYEES, NOTIFIED THE RAILROAD
UNDER SEC. 6 OF THE RAILWAY LABOR ACT, 45 U.S.C. SEC. 156, THAT IT
WANTED TO NEGOTIATE WITH THE RAILROAD TO AMEND THE CURRENT BARGAINING
AGREEMENT BY ADDING THE FOLLOWING RULE: 

"NO POSITION IN EXISTENCE ON DECEMBER 3, 1957, WILL BE ABOLISHED OR
DISCONTINUED EXCEPT BY AGREEMENT BETWEEN THE CARRIER AND THE
ORGANIZATION." 

THE RAILROAD TOOK THE POSITION, ACCORDING TO ITS COMPLAINT, THAT THIS
REQUEST DID NOT CONSTITUTE A "LABOR DISPUTE UNDER THE RAILWAY LABOR
ACT," THAT IT DID NOT RAISE A BARGAINABLE ISSUE, AND THAT THE UNION HAD
NO RIGHT TO PROTEST OR TO SEEK RELIEF EXCEPT BY APPEARING BEFORE THE
STATE PUBLIC UTILITY COMMISSIONS WHICH HAD POWER TO DETERMINE WHETHER
STATION AGENCIES COULD BE DISCONTINUED, A POWER WHICH PRIVATE PARTIES
COULD NOT THWART BY ENTERING INTO A BARGAINING AGREEMENT.  THE
RESPONDENT ADDED THAT MAINTENANCE OF THE UNNECESSARY AGENCIES WAS
OFFENSIVE TO THE NATIONAL TRANSPORTATION POLICY CONGRESS ADOPTED IN THE
INTERSTATE COMMERCE ACT.  49 U.S.C. SECS. 1-27, AND THAT THE DUTIES
THAT ACT IMPOSED ON RAILROADS COULD NOT BE CONTRACTED AWAY. 

THE UNION CONTENDED THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION
TO GRANT INJUNCTIVE RELIEF UNDER THE PROVISIONS OF THE NORRIS-LAGUARDIA
ACT BECAUSE THIS CASE INVOLVED A LABOR DISPUTE, AND THAT THE RAILROAD
HAD REFUSED TO NEGOTIATE IN GOOD FAITH ON THE PROPOSED CHANGE IN THE
AGREEMENT IN VIOLATION OF SEC. 2, FIRST, OF THE RAILWAY LABOR ACT, 45
U.S.C. SEC. 152, FIRST, WHICH REQUIRES THE RAILROAD TO EXERT EVERY
REASONABLE EFFORT TO MAKE AND MAINTAIN AGREEMENTS CONCERNING RATES OF
PAY, RULES AND WORKING CONDITIONS.  THEREFORE, THE UNION ARGUED, AN
INJUNCTION IN FEDERAL COURT IS BARRED IF FOR NO OTHER REASON BECAUSE OF
SEC. 8 OF THE NORRIS-LAGUARDIA ACT WHICH PROVIDES: 

"NO RESTRAINING ORDER OR INJUNCTIVE RELIEF SHALL BE GRANTED TO ANY
COMPLAINANT WHO HAS FAILED TO COMPLY WITH ANY OBLIGATION IMPOSED BY LAW
WHICH IS INVOLVED IN THE LABOR DISPUTE IN QUESTION, OR WHO HAS FAILED
TO MAKE EVERY REASONABLE EFFORT TO SETTLE SUCH DISPUTE EITHER BY
NEGOTIATION OR WITH THE AID OF ANY AVAILABLE GOVERNMENTAL MACHINERY OF
MEDIATION OR VOLUNTARY ARBITRATION."  29 U.S.C.  SEC. 108. 

SEE BROTHERHOOD OF RAILROAD TRAINMEN V. TOLEDO, P.&W.R. CO., 321 U.S.
50. 

AFTER HEARINGS, THE DISTRICT COURT FOUND, SO FAR AS IS RELEVANT HERE,
THAT THE RAILROAD "REFUSED TO NEGOTIATE, CONFER, MEDIATE OR OTHERWISE
TREAT WITH DEFENDANT TELEGRAPHERS ON THE PROPOSED CHANGE IN AGREEMENT
SET FORTH IN THE SECTION 6 NOTICE," ALTHOUGH THE RAILROAD "DID SHOW
WILLINGNESS TO NEGOTIATE UPON THE CENTRAL AGENCY PLAN, INCLUDING A
POSSIBILITY CONCERNING SEVERANCE PAY"; THAT THE PROPOSED CONTRACT
CHANGE REFERRED TO IN THE SEC. 6 NOTICE "RELATES TO THE LENGTH OR TERM
OF EMPLOYMENT AS WELL AS STABILIZATION OF EMPLOYMENT" AND THAT
COLLECTIVE BARGAINING AS TO THE LENGTH OR TERM OF EMPLOYMENT IS
COMMONPLACE; THAT "THE DISPUTE GIVING RISE TO THE PROPOSED STRIKE IS A
MAJOR DISPUTE AND NOT A MINOR GRIEVANCE UNDER THE RAILWAY LABOR ACT,
AND NO ISSUE INVOLVED THEREIN IS PROPERLY REFERABLE TO THE NATIONAL
RAILROAD ADJUSTMENT BOARD"; (FN2) AND THAT THE CONTRACT CHANGE PROPOSED
IN THE SEC. 6 NOTICE RELATED TO "RATES OF PAY, RULES AND WORKING
CONDITIONS," AND WAS THEREFORE A BARGAINABLE ISSUE UNDER THE RAILWAY
LABOR ACT.  ON ITS FINDINGS AND CONCLUSIONS OF LAW, THE DISTRICT COURT
GRANTED TEMPORARY RELIEF BUT DECLINED TO GRANT A PERMANENT INJUNCTION
ON THE GROUND THAT IT WAS WITHOUT JURISDICTION TO DO SO. 

ON APPEAL THE COURT OF APPEALS DID GRANT A PERMANENT INJUNCTION UPON
ITS DECISION THAT "THE DISTRICT COURT'S FINDING THAT THE PROPOSED
CONTRACT CHANGE RELATED TO 'RATES OF PAY, RULES, OR WORKING
CONDITIONS,' AND WAS THUS A BARGAINABLE ISSUE UNDER THE RAILWAY LABOR
ACT, IS CLEARLY ERRONEOUS."  (FN3)  IT HELD THAT THE NORRIS-LAGUARDIA
ACT DID NOT APPLY TO BAR AN INJUNCTION AGAINST THIS STRIKE (FN4) AND WE
GRANTED CERTIORARI, 361 U.S. 809, TO CONSIDER THIS IMPORTANT QUESTION. 
(FN5) 

WE HOLD, WITH THE DISTRICT COURT, THAT THIS CASE INVOLVES OR GROWS
OUT OF A LABOR DISPUTE WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT
AND THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION PERMANENTLY TO
ENJOIN THE STRIKE. 

JURISDICTION FROM A DISTRICT COURT TO PROHIBIT ANY PERSON OR PERSONS
FROM "CEASING OR REFUSING TO PERFORM ANY WORK OR TO REMAIN IN ANY
RELATION OF EMPLOYMENT" "IN ANY CASE INVOLVING OR GROWING OUT OF ANY
LABOR DISPUTE" AS "HEREIN DEFINED."  (FN6)  SECTION 13(C) OF THE ACT
DEFINES A LABOR DISPUTE AS INCLUDING: 

"ANY CONTROVERSY CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT, OR
CONCERNING THE ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING,
FIXING, MAINTAINING, CHANGING, OR SEEKING TO ARRANGE TERMS OR
CONDITIONS OF EMPLOYMENT, REGARDLESS OF WHETHER OR NOT THE DISPUTANTS
STAND IN THE PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE."  (FN7) 

UNLESS THE LITERAL LANGUAGE OF THIS DEFINITION IS TO BE IGNORED, IT
SQUARELY COVERS THIS CONTROVERSY.  CONGRESS MADE THE DEFINITION BROAD
BECAUSE IT WANTED IT TO BE BROAD.  THERE ARE FEW PIECES OF LEGISLATION
WHERE THE CONGRESSIONAL HEARINGS, COMMITTEE REPORTS, AND THE LANGUAGE
IN THE LEGISLATION ITSELF MORE CLEARLY POINT TO THE NECESSITY FOR
GIVING AN ACT A CONSTRUCTION THAT WILL PROTECT THE CONGRESSIONAL POLICY
THE ACT ADOPTED.  SECTION 2 OF THIS ACT SPECIFIES THE PUBLIC POLICY TO
BE TAKEN INTO CONSIDERATION IN INTERPRETING THE ACT'S LANGUAGE AND IN
DETERMINING THE JURISDICTION AND AUTHORITY OF FEDERAL COURTS; IT IS ONE
OF FREEDOM OF ASSOCIATION, ORGANIZATION, REPRESENTATION AND NEGOTIATION
ON THE PART OF WORKERS.  (FN8)  THE HEARINGS AND COMMITTEE REPORTS
REVEAL THAT CONGRESS ATTEMPTED TO WRITE ITS BILL IN UNMISTAKABLE
LANGUAGE BECAUSE IT BELIEVED PREVIOUS MEASURES LOOKING TOWARD THE SAME
POLICY AGAINST NONJUDICIAL INTERVENTION IN LABOR DISPUTES HAD BEEN
GIVEN UNDULY LIMITED CONSTRUCTIONS BY THE COURTS.  (FN9) 

PLAINLY THE CONTROVERSY HERE RELATES TO AN EFFORT ON THE PART OF THE
UNION TO CHANGE THE "TERMS" OF AN EXISTING COLLECTIVE BARGAINING
AGREEMENT.  THE CHANGE DESIRED JUST AS PLAINLY REFERRED TO "CONDITIONS
OF EMPLOYMENT" OF THE RAILROAD'S EMPLOYEES WHO ARE REPRESENTED BY THE
UNION.  THE EMPLOYMENT OF MANY OF THESE STATION AGENTS INESCAPABLY
HANGS ON THE NUMBER OF RAILROAD STATIONS THAT WILL BE EITHER COMPLETELY
ABANDONED OR CONSOLIDATED WITH OTHER STATIONS.  AND, IN THE COLLECTIVE
BARGAINING WORLD TODAY, THERE IS NOTHING STRANGE ABOUT AGREEMENTS THAT
AFFECT THE PERMANENCY OF EMPLOYMENT.  THE DISTRICT COURT'S FINDING THAT
"COLLECTIVE BARGAINING AS TO THE LENGTH OR TERM OF EMPLOYMENT IS
COMMONPLACE," IS NOT CHALLENGED. 

WE CANNOT AGREE WITH THE COURT OF APPEALS THAT THE UNION'S EFFORT TO
NEGOTIATE ABOUT THE JOB SECURITY OF ITS MEMBERS "REPRESENTS AN ATTEMPT
TO USURP LEGITIMATE MANAGERIAL PREROGATIVE IN THE EXERCISE OF BUSINESS
JUDGMENT WITH RESPECT TO THE MOST ECONOMICAL AND EFFICIENT CONDUCT OF
ITS OPERATIONS."  (FN10)  THE RAILWAY LABOR ACT AND THE INTERSTATE
COMMERCE ACT RECOGNIZE THAT STABLE AND FAIR TERMS AND CONDITIONS OF
RAILROAD EMPLOYMENT ARE ESSENTIAL TO A WELL-FUNCTIONING NATIONAL
TRANSPORTATION SYSTEM.  THE RAILWAY LABOR ACT SAFEGUARDS AN OPPORTUNITY
FOR EMPLOYEES TO OBTAIN CONTRACTS THROUGH COLLECTIVE RATHER THAN
INDIVIDUALISTIC BARGAINING.  WHERE COMBINATIONS AND CONSOLIDATIONS OF
RAILROADS MIGHT ADVERSELY AFFECT THE INTERESTS OF EMPLOYEES, CONGRESS
IN THE INTERSTATE COMMERCE ACT HAS EXPRESSLY REQUIRED THAT BEFORE
APPROVING SUCH CONSOLIDATIONS THE INTERSTATE COMMERCE COMMISSION "SHALL
REQUIRE A FAIR AND EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS OF
THE RAILROAD EMPLOYEES AFFECTED."  (FN11)  IT REQUIRES THE COMMISSION
TO DO THIS BY INCLUDING "TERMS AND CONDITIONS" WHICH PROVIDE THAT FOR A
TERM OF YEARS AFTER A CONSOLIDATION EMPLOYEES SHALL NOT BE "IN A WORSE
POSITION WITH RESPECT TO THEIR EMPLOYMENT" THAN THEY WOULD OTHERWISE
HAVE BEEN.  (FN12) 

IN 1942 THIS COURT HELD THAT WHEN A RAILROAD ABANDONS A PORTION OF
ITS LINES, THE INTERSTATE COMMERCE COMMISSION HAS POWER TO INCLUDE
CONDITIONS FOR THE PROTECTION OF DISPLACED WORKERS IN DECIDING WHAT
"THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE."  WE SO CONSTRUED
THE INTERSTATE COMMERCE ACT SPECIFICALLY ON THE BASIS THAT IMPOSITION
OF SUCH CONDITIONS "MIGHT STRENGTHEN THE NATIONAL SYSTEM THROUGH THEIR
EFFECT ON THE MORALE AND STABILITY OF RAILWAY WORKERS GENERALLY." 
INTERSTATE COMMERCE COMM'N V. RAILWAY L. EXEC. ASSN., 315 U.S. 373,
378, CITING UNITED STATES V. LOWDEN, 308 U.S. 225.  THE BRIEF FOR THE
RAILROAD ASSOCIATIONS THERE CALLED OUR ATTENTION TO TESTIMONY
PREVIOUSLY GIVEN TO CONGRESS THAT AS EARLY AS 1936 RAILROADS
REPRESENTING 85% OF THE MILEAGE OF THE COUNTRY HAD MADE COLLECTIVE
BARGAINING AGREEMENTS WITH THEIR EMPLOYEES TO PROVIDE A SCHEDULE OF
BENEFITS FOR WORKERS WHO MIGHT BE DISPLACED OR ADVERSELY AFFECTED BY
COORDINATIONS OR MERGERS.  (FN13)  IN AN EFFORT TO PREVENT A DISRUPTION
AND STOPPAGE OF INTERSTATE COMMERCE, THE TREND OF LEGISLATION AFFECTING
RAILROADS AND RAILROAD EMPLOYEES HAS BEEN TO BROADEN, NOT NARROW, THE
SCOPE OF SUBJECTS ABOUT WHICH WORKERS AND RAILROADS MAY OR MUST
NEGOTIATE AND BARGAIN COLLECTIVELY.  FURTHERMORE, THE WHOLE IDEA OF
WHAT IS BARGAINABLE HAS BEEN GREATLY AFFECTED BY THE PRACTICES AND
CUSTOMS OF THE RAILROADS AND THEIR EMPLOYEES THEMSELVES.  IT IS TOO
LATE NOW TO ARGUE THAT EMPLOYEES CAN HAVE NO COLLECTIVE VOICE TO
INFLUENCE RAILROADS TO ACT IN A WAY THAT WILL PRESERVE THE INTERESTS OF
THE EMPLOYEES AS WELL AS THE INTERESTS OF THE RAILROAD AND THE PUBLIC
AT LARGE. 

THE RAILROAD HAS ARGUED THROUGHOUT THE PROCEEDINGS THAT THE UNION'S
STRIKE HERE MAY BE ENJOINED, REGARDLESS OF NORRIS-LAGUARDIA, BECAUSE
ITS EFFORT TO BARGAIN ABOUT THE CONSOLIDATION AND ABANDONMENT OF
RAILROAD STATIONS IS UNLAWFUL.  IT IS TRUE THAT IN A SERIES OF CASES
WHERE COLLECTIVE BARGAINING AGENTS STEPPED OUTSIDE THEIR LEGAL DUTIES
AND VIOLATED THE ACT WHICH CALLED THEM INTO BEING, WE HELD THAT THEY
COULD BE ENJOINED.  (FN14)  NONE OF THESE CASES, HOWEVER, ENJOINED
CONDUCT WHICH THE NORRIS-LAGUARDIA ACT WITHDREW FROM THE INJUNCTIVE
POWER OF THE FEDERAL COURTS EXCEPT THE CHICAGO RIVER CASE WHICH HELD
THAT A STRIKE COULD BE ENJOINED TO PREVENT A PLAIN VIOLATION OF A BASIC
COMMAND OF THE RAILWAY LABOR ACT "ADOPTED AS A PART OF A PATTERN OF
LABOR LEGISLATION."  353 U.S. 30, 42.  THE COURT THERE REGARDED AS
INAPPOSITE THOSE CASES IN WHICH IT WAS HELD THAT THE NORRIS-LAGUARDIA
ACT'S BAN ON FEDERAL INJUNCTIONS IS NOT LIFTED BECAUSE THE CONDUCT OF
THE UNION IS UNLAWFUL UNDER SOME OTHER, NONLABOR STATUTE.  (FN15)
HERE, FAR FROM VIOLATING THE RAILWAY LABOR ACT, THE UNION'S EFFORT TO
NEGOTIATE ITS CONTROVERSY WITH THE RAILROAD WAS IN OBEDIENCE TO THE
ACT'S COMMAND THAT EMPLOYEES AS WELL AS RAILROADS EXERT EVERY
REASONABLE EFFORT TO SETTLE ALL DISPUTES "CONCERNING RATES OF PAY,
RULES, AND WORKING CONDITIONS."  45 U.S.C. SEC. 152, FIRST.  MOREOVER,
NEITHER THE RESPONDENT NOR ANYONE ELSE POINTS TO ANY OTHER SPECIFIC
LEGAL COMMAND THAT THE UNION VIOLATED HERE BY ATTEMPTING TO BRING ABOUT
A CHANGE IN ITS COLLECTIVE BARGAINING AGREEMENT.  IT WOULD STRETCH
CREDULITY TOO FAR TO SAY THAT THE RAILWAY LABOR ACT, DESIGNED TO
PROTECT RAILROAD WORKERS, WAS SOMEHOW VIOLATED BY THE UNION ACTING
PRECISELY IN ACCORDANCE WITH THAT ACT'S PURPOSE TO OBTAIN STABILITY AND
PERMANENCE IN EMPLOYMENT FOR WORKERS.  THERE IS NO EXPRESS PROVISION OF
LAW, AND CERTAINLY WE CAN INFER NONE FROM THE INTERSTATE COMMERCE ACT,
MAKING IT UNLAWFUL FOR UNIONS TO WANT TO DISCUSS WITH RAILROADS ACTIONS
THAT MAY VITALLY AND ADVERSELY AFFECT THE SECURITY, SENIORITY AND
STABILITY OF RAILROAD JOBS.  (FN16)  AND FOR A NUMBER OF REASONS THE
STATE PUBLIC UTILITY PROCEEDINGS, INVOKED BY THE RAILROAD TO OBTAIN
APPROVAL OF CONSOLIDATION OR ABANDONMENT OF STATIONS, COULD NOT STAMP
ILLEGALITY ON THE UNION'S EFFORT TO NEGOTIATE THIS WHOLE QUESTION WITH
THE RAILROAD.   THE UNION MERELY ASKED FOR A CONTRACTUAL RIGHT TO
BARGAIN WITH THE RAILROAD ABOUT ANY VOLUNTARY STEPS IT MIGHT TAKE TO
ABANDON STATIONS OR TO SEEK PERMISSION TO ABANDON STATIONS AND THUS
ABOLISH JOBS.  NOTHING THE UNION REQUESTED WOULD REQUIRE THE RAILROAD
TO VIOLATE ANY VALID LAW OR THE VALID ORDER OF ANY PUBLIC AGENCY. 
THERE IS NO TESTIMONY AND THERE ARE NO FINDINGS THAT THIS UNION HAS SET
ITSELF UP IN DEFIANCE OF ANY STATE MANDATORY ORDER.  IN FACT, THERE WAS
NO STATE ORDER OF ANY KIND AT THE TIME THE UNION FIRST ASKED TO
NEGOTIATE ABOUT THE PROPOSED CONTRACTUAL CHANGE.  EVEN IF A NORRIS
LAGUARDIA "LABOR DISPUTE" COULD NOT ARISE OUT OF AN UNLAWFUL BARGAINING
DEMAND, BUT SEE AFRAN TRANSP.  CO. V. NATIONAL MARITIME UNION, 169 F.
SUPP. 416, 1959 AM. MAR. CAS. 326, THE UNION'S PROPOSAL HERE WAS NOT
UNLAWFUL. 

THE UNION CONTENDS THAT, WHETHER THE STATE RULINGS WERE MANDATORY OR
PERMISSIVE, THE STATES ARE WITHOUT AUTHORITY TO ORDER AN ADANDONMENT OF
STATIONS THAT WOULD CONFLICT WITH COLLECTIVE BARGAINING AGREEMENTS MADE
OR TO BE MADE BETWEEN THE RAILROAD AND THE UNION.  WHETHER THIS
CONTENTION IS VALID OR NOT WE NEED NOT DECIDE SINCE THERE IS NO SUCH
CONFLICT BEFORE US.  AND THE DISTRICT COURT EXPRESSLY REFUSED TO FIND
THAT THE UNION'S PROPOSAL WAS PROMPTED BY THE RAILROAD'S ACTION IN
SEEKING STATE AUTHORITY TO PUT ITS CENTRAL AGENCY PLAN INTO EFFECT. 
INSTEAD, THE DISTRICT COURT SPECIFICALLY FOUND THAT THE DISPUTE GREW
OUT OF THE FAILURE OF THE PARTIES TO REACH AN AGREEMENT ON THE CONTRACT
CHANGE PROPOSED BY THE UNION. 

ONLY A WORD NEED BE SAID ABOUT THE RAILROAD'S CONTENTION THAT THE
DISPUTE HERE WITH THE UNION WAS A MINOR ONE RELATING TO AN
INTERPRETATION OF ITS CONTRACT AND THEREFORE ONE THAT THE RAILWAY LABOR
ACT REQUIRES TO BE HEARD BY THE NATIONAL RAILROAD ADJUSTMENT BOARD.  WE
HAVE HELD THAT A STRIKE OVER A "MINOR DISPUTE" MAY BE ENJOINED IN ORDER
TO ENFORCE COMPLIANCE WITH THE RAILWAY LABOR ACT'S REQUIREMENT THAT
MINOR DISPUTES BE HEARD BY THE ADJUSTMENT BOARD.  BROTHERHOOD OF
RAILROAD TRAINMEN V. CHICAGO RIVER & I.R. CO., 353 U.S. 30.  BUT IT IS
IMPOSSIBLE TO CLASSIFY AS A MINOR DISPUTE THIS DISPUTE RELATING TO A
MAJOR CHANGE, AFFECTING JOBS, IN AN EXISTING COLLECTIVE BARGAINING
AGREEMENT, RATHER THAN TO MERE INFRACTIONS OR INTERPRETATIONS OF THE
PROVISIONS OF THAT AGREEMENT.  PARTICULARLY SINCE THE COLLECTIVE
BARGAINING AGREEMENT WHICH THE UNION SOUGHT TO CHANGE WAS A RESULT OF
MEDIATION UNDER THE RAILWAY LABOR ACT, THIS IS THE TYPE OF MAJOR
DISPUTE THAT IS NOT GOVERNED BY THE ADJUSTMENT BOARD. 

IN CONCLUDING THAT THE INJUNCTION ORDERED BY THE COURT OF APPEALS IS
FORBIDDEN BY THE NORRIS-LAGUARDIA ACT, WE HAVE TAKEN DUE ACCOUNT OF THE
RAILROAD'S ARGUMENT THAT THE OPERATION OF UNNECESSARY STATIONS,
SERVICES AND LINES IS WASTEFUL AND THUS RUNS COUNTER TO THE
CONGRESSIONAL POLICY, EXPRESSED IN THE INTERSTATE COMMERCE ACT, TO
FOSTER AN EFFICIENT NATIONAL RAILROAD SYSTEM.  IN OTHER LEGISLATION,
HOWEVER, LIKE THE RAILWAY LABOR AND NORRIS-LAGUARDIA ACTS, CONGRESS HAS
ACTED ON THE ASSUMPTION THAT COLLECTIVE BARGAINING BY EMPLOYEES WILL
ALSO FOSTER AN EFFICIENT NATIONAL RAILROAD SERVICE.  IT PASSED SUCH
ACTS WITH KNOWLEDGE THAT COLLECTIVE BARGAINING MIGHT SOMETIMES INCREASE
THE EXPENSE OF RAILROAD OPERATIONS BECAUSE OF INCREASED WAGES AND
BETTER WORKING CONDITIONS.  IT GOES WITHOUT SAYING, THEREFORE, THAT
ADDED RAILROAD EXPENDITURES FOR EMPLOYEES CANNOT ALWAYS BE CLASSIFIED
AS "WASTEFUL."  IT MAY BE, AS SOME PEOPLE THINK, THAT CONGRESS WAS
UNWISE IN CURTAILING THE JURISDICTION OF FEDERAL COURTS IN RAILROAD
DISPUTES AS IT DID IN THE NORRIS-LAGUARDIA ACT.  ARGUMENTS HAVE EVEN
BEEN PRESENTED HERE POINTING TO THE FINANCIAL DEBILITATION OF THE
RESPONDENT CHICAGO & NORTH WESTERN RAILROAD AND TO THE ABSOLUTE
NECESSITY FOR THE ABANDONMENT OF RAILROAD STATIONS.  THESE ARGUMENTS,
HOWEVER, ARE ADDRESSED TO THE WRONG FORUM.  IF THE SCOPE OF THE NORRIS
LAGUARDIA ACT IS TO BE CUT DOWN IN ORDER TO PREVENT "WASTE" BY THE
RAILROADS, CONGRESS SHOULD BE THE BODY TO DO SO.  SUCH ACTION IS BEYOND
THE JUDICIAL PROVINCE AND WE DECLINE TO TAKE IT. 

THERE ARE OTHER SUBSIDIARY QUESTIONS RAISED WITH REFERENCE TO THE
VALIDITY OF A SECOND 30-DAY RESTRAINING ORDER ISSUED BY THE DISTRICT
JUDGE AND AN INJUNCTION PENDING APPEAL UNDER RULE 62(C) OF THE FEDERAL
RULES OF CIVIL PROCEDURE.  BUT SINCE WE HAVE DETERMINED THE MAIN
CONTROVERSY BETWEEN THE PARTIES, WE THINK IT INADVISABLE TO DECIDE
EITHER OF THESE QUESTIONS NOW.  WE INTIMATE NO OPINION CONCERNING
EITHER AT THIS TIME. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THAT OF THE
DISTRICT COURT IS AFFIRMED INSOFAR AS IT HELD THAT THE COURT WAS
WITHOUT JURISDICTION UNDER THE NORRIS-LAGUARDIA ACT TO ENTER THE
INJUNCTION.  IT IS SO ORDERED. 

FN1  47 STAT. 70, 29 U.S.C. SEC. 104. 

FN2  SEE BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER & I.R.
CO., 353 U.S. 30. 

FN3  CHICAGO & N.W.R. CO. V. ORDER OF RAILROAD TELEGRAPHERS, 264 F.2D
254, AT 260. 

FN4  IBID.  SEE BROTHERHOOD OF RAILROAD TRAINMEN V. NEW YORK CENTRAL
R. CO., 246 F.2D 114.  BUT SEE BULL STEAMSHIP CO. V. SEAFARERS'
INTERNATIONAL UNION, 250 F.2D 326. 

AT THE TIME OF THE DISTRICT COURT'S DECISION, TWO STATES (SOUTH
DAKOTA AND IOWA) OF THE FOUR IN WHICH THE RAILROAD HAD SOUGHT
PERMISSION TO INSTITUTE ITS CENTRAL AGENCY PLAN (THE OTHER TWO WERE
MINNESOTA AND WISCONSIN) HAD GRANTED PERMISSION AND THE PLAN WAS
PROMPTLY PLACED IN EFFECT.  SINCE THEN, WE ARE GIVEN TO UNDERSTAND, THE
COMMISSIONS IN THE REMAINING TWO STATES HAVE ISSUED ORDERS APPROVING
THE PLAN. 

FN5  COMPARE MARINE COOKS & STEWARDS V. PANAMA STEAMSHIP CO., POST,
P. 365, DECIDED THIS DAY. 

FN6  29 U.S.C. SEC. 104. 

FN7  29 U.S.C. SEC. 113(C). 

FN8  29 U.S.C. SEC. 102. 

FN9  SEE ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, 325 U.S. 797, 805;
UNITED STATES V. HUTCHESON, 312 U.S. 219, 230-236; MILK WAGON DRIVERS'
UNION V. LAKE VALLEY FARM PRODUCTS, INC., 311 U.S. 91, 102-103. 

FN10  264 F.2D, AT 259. 

FN11  49 U.S.C. SEC. 5(2)(F).  AND SEE SEC. 5(2)(C). 

FN12  49 U.S.C. SEC. 5(2)(F). 

FN13  HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.R. 2531, 76TH CONG., 1ST SESS. 216-217. 

FN14  BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER & I.R. CO.,
353 U.S. 30; BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768;
GRAHAM V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 338 U.S. 232;
TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 323 U.S.
210; VIRGINIAN R. CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515.  SEE
ALSO TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, 457-459. 
AND SEE STEELE V. LOUISVILLE & N.R.  CO., 323 U.S. 192. 

FN15  THE COURT CITED THE FOLLOWING CASES TO SHOW THAT UNLAWFULNESS
UNDER NONLABOR LEGISLATION DID NOT REMOVE THE RESTRICTIONS OF THE
NORRIS-LAGUARDIA ACT UPON THE JURISDICTION OF FEDERAL COURTS: MILK
WAGON DRIVERS' UNION V. LAKE VALLEY FARM PRODUCTS, INC., 311 U.S. 91,
103 (ALLEGED VIOLATIONS OF SHERMAN ACT); EAST TEXAS MOTOR FREIGHT LINES
V. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 163 F.2D 10, 12 (VIOLATION
OF INTERSTATE COMMERCE ACT AND MOTOR CARRIER ACT). 

OF COURSE, A HOLDING HERE THAT MERE UNLAWFULNESS UNDER ANY LAW IS
ENOUGH TO REMOVE THE STRICTURES OF THE NORRIS-LAGUARDIA ACT WOULD
REQUIRE A MODIFICATION OR ABANDONMENT OF OUR STATEMENT THAT "FOR US TO
HOLD, IN THE FACE OF THIS LEGISLATION (THE CLAYTON AND NORRIS-LAGUARDIA
ACTS), THAT THE FEDERAL COURTS HAVE JURISDICTION TO GRANT INJUNCTIONS
IN CASES GROWING OUT OF LABOR DISPUTES, MERELY BECAUSE ALLEGED
VIOLATIONS OF THE SHERMAN ACT ARE INVOLVED, WOULD RUN COUNTER TO THE
PLAIN MANDATE OF THE NORRIS-LAGUARDIA ACT AND WOULD REVERSE THE
DECLARED PURPOSE OF CONGRESS."  MILK WAGON DRIVERS' UNION V. LAKE
VALLEY FARM PRODUCTS, INC., 311 U.S. 91, 103.  SEE ALSO LEE WAY MOTOR
FREIGHT V. KEYSTONE FREIGHT LINES, 126 F.2D 931, 934. 

FN16  MOREOVER, THIS RAILROAD OPERATES IN NINE STATES; IT HAS
INSTITUTED PROCEEDINGS IN THE STATE REGULATORY COMMISSIONS OF FOUR ONLY
AND AT THE TIME OF THE DISTRICT COURT'S DECISION, ONLY TWO OF THESE HAD
RENDERED DECISIONS.  YET THE UNION'S PROPOSAL WAS TO NEGOTIATE FOR A
CLAUSE WHICH WOULD APPLY TO RESPONDENT'S ENTIRE SYSTEM.  THE RAILROAD'S
REFUSAL TO BARGAIN WAS NOT LIMITED, HOWEVER, TO OPERATIONS IN THE FOUR
STATES IN WHICH PROCEEDINGS HAD BEGUN.  AND EVEN ASSUMING THAT THE
ORDER OF ONE STATE, SOUTH DAKOTA, WAS MANDATORY AND THAT THIS FACT IS
OF IMPORTANCE, IT WOULD NOT RELIEVE THE RAILROAD FROM ANY DUTY IT HAD
TO BARGAIN ON THE PROPOSED CONTRACT CHANGE IN THE EIGHT OTHER STATES
INVOLVED. 

MR. JUSTICE CLARK, DISSENTING. 

THE RESPONDENT, SUFFERING FROM FINANCIAL HEADACHES, CONDUCTED AN
EFFICIENCY SURVEY OF ITS OPERATIONS.  THIS INDICATED THAT IT WAS
CARRYING CONSIDERABLE DEAD WEIGHT ON ITS PAYROLL IN THE FORM OF LOCAL,
ONE-MAN STATIONS.  SOME OF ITS LOCAL AGENTS WORKED AS LITTLE AS 12
MINUTES A DAY AND THE AVERAGE DAILY WORK TIME ON ITS ONE-MAN STATIONS
WAS ONLY 59 MINUTES.  ALL DREW A FULL DAY'S PAY.  IN FACT, THE PAY FOR
TIME WORKED, IT WAS FOUND, RAN IN SOME CASES AS HIGH AS $300 PER HOUR. 
MEANWHILE THE RAILROAD WAS FACING A SLOW DEATH FOR LACK OF FUNDS - ALL
TO THE ULTIMATE BUT CERTAIN DETRIMENT OF THE PUBLIC, THE EMPLOYEES AND
THE MANAGEMENT.  IT THEN PROPOSED - AND, AFTER HEARINGS, FOUR STATES
APPROVED - A CONSOLIDATION OF WORK SO THAT AN AGENT WOULD HAVE
SUFFICIENT DUTIES TO PERFORM TO EARN A FULL DAY'S PAY.  THIS WOULD ALSO
PERMIT THE RAILROAD, WITHOUT ANY CURTAILMENT OF ITS SERVICE TO THE
PUBLIC, TO REDUCE ITS EMPLOYEE FORCE OVER ITS ENTIRE SYSTEM BY SEVERAL
HUNDRED AGENTS.  IT PROPOSED TO NEGOTIATE WITH THE UNION AS TO THE
SEVERANCE PAY AND OTHER PERQUISITES FOR THOSE AGENTS WHOSE SERVICES
WOULD NO LONGER BE NEEDED.  THIS THE UNION REFUSED TO DO, DEMANDING
THAT BEFORE ANY AGENT'S POSITION BE ABOLISHED THE RAILROAD OBTAIN ITS
CONSENT.  THE UNION OFFERED BUT ONE ALTERNATIVE:  "COMPLY WITH" ITS
DEMAND, OR SUFFER A "STRIKE."  THE RAILROAD, IN THE FACE OF SUCH A
UKASE, BROUGHT THIS SUIT. 

TODAY THE COURT TELLS THE RAILROAD THAT IT MUST BARGAIN WITH THE
UNION OR SUFFER A STRIKE.  THE LATTER WOULD BE THE DEATH KNELL OF THE
RAILROAD.  HENCE, FOR ALL PRACTICAL PURPOSES, THE COURT IS TELLING THE
RAILROAD THAT IT MUST SECURE THE UNION'S APPROVAL BEFORE SEVERING THE
HUNDREDS OF SURPLUS EMPLOYEES NOW CARRIED ON ITS PAYROLL.  EVERYONE
KNOWS WHAT THE ANSWER OF THE UNION WILL BE. IT IS LIKE THE SUITOR WHO,
WHEN SEEKING THE HAND OF A YOUNG LADY, WAS TOLD BY HER TO "GO TO
FATHER."   BUT, AS THE PARODY GOES, "SHE KNEW THAT HE KNEW THAT HER
FATHER WAS DEAD; SHE KNEW THAT HE KNEW WHAT A LIFE HE HAD LED; AND SHE
KNEW THAT HE KNEW WHAT SHE MEANT WHEN SHE SAID 'GO TO FATHER.'" 

I DO NOT BELIEVE THAT THE CONGRESS INTENDED TO PUT THE RAILROADS IN
SUCH A SITUATION.  IN FACT, ITS OVER-ALL PURPOSE HAS BEEN TO PREVENT
THE DEVASTATING EFFECTS OF STRIKES FROM PARALYZING OUR TRANSPORTATION
SYSTEMS, THE EFFICIENT OPERATION OF WHICH IS SO VITAL TO THE PUBLIC
WELFARE.  AS I READ THE INTERSTATE COMMERCE ACT - THE PROVISIONS OF
WHICH WERE REAFFIRMED AS LATE AS THE TRANSPORTATION ACT OF 1958 - THE
CONGRESS TOLD THE RAILROADS TO GO TO THE STATES - NOT THE UNION -
BEFORE ABANDONING OR CONSOLIDATING ITS LOCAL STATIONS.  RESPONDENT WENT
TO THE STATES AND OBTAINED THEIR APPROVAL.  THE COURT TODAY GIVES TO
THE UNION A VETO POWER OVER THIS ACTION OF THE STATES.  UNTIL THIS
POWER IS REMOVED, THE RAILROADS WILL CONTINUE TO BE PLAGUED WITH THIS
SITUATION - SO FOREIGN TO THE CONCEPT OF A FAIR DAY'S PAY FOR A FAIR
DAY'S WORK, WHICH HAS BEEN THE BASIS OF UNION LABOR'S GREAT
ACHIEVEMENTS. 

FOR THIS REASON, AS WELL AS THOSE SO ABLY ENUMERATED BY MY BROTHER
WHITTAKER IN HIS DISSENT, WHICH I JOIN, I AM OBLIGED TO DISAGREE WITH
THE COURT.  PERHAPS THE CONGRESS WILL BE OBLIGED, IN THE FACE OF THIS
RULING, TO PLACE THE SOLUTION OF SUCH PROBLEMS WITHIN THE SPECIFIC
POWER OF THE INTERSTATE COMMERCE COMMISSION OR UNDER THE RAILWAY LABOR
ACT, EACH OF WHICH, AS WELL AS THE COURTS, IS TODAY HELD IMPOTENT. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
CLARK AND MR. JUSTICE STEWART JOIN, DISSENTING. 

THE COURT CONCLUDES, AS I READ ITS OPINION, THAT THE UNION'S DEMAND
FOR A COVENANT THAT NO EXISTING POSITION MAY BE ABOLISHED WITHOUT ITS
CONSENT WAS A LAWFULLY BARGAINABLE ONE UNDER THE RAILWAY LABOR ACT;
THAT THE UNION DID NOT, BY ITS DEMAND, ATTEMPT UNLAWFULLY TO "SET
ITSELF UP IN DEFIANCE OF" PUBLIC REGULATORY ORDERS; THAT THE "UNION
MERELY ASKED FOR A CONTRACTUAL RIGHT TO BARGAIN WITH THE RAILROAD ABOUT
...  ABANDONING STATIONS  ...  AND THUS ABOLISHING JOBS"; THAT "EVEN
IF A NORRIS-LAGUARDIA 'LABOR DISPUTE' COULD NOT ARISE OUT OF AN
UNLAWFUL BARGAINING DEMAND ...  THE UNION'S PROPOSAL HERE WAS NOT
UNLAWFUL," AND THAT THE NORRIS-LAGUARDIA ACT DEPRIVED THE COURT OF
JURISDICTION TO ENJOIN THE THREATENED STRIKE TO ENFORCE ACCEPTANCE OF
THE UNION'S DEMAND.    WITH ALL DEFERENCE, I BELIEVE THAT THESE
CONCLUSIONS ARE CONTRARY TO THE ADMITTED OR INDUBITABLE FACTS IN THE
RECORD, TO THE PROVISIONS AND POLICIES OF ACTS ADOPTED BY CONGRESS, AND
ALSO TO PRINCIPLES ESTABLISHED BY MANY DECISIONS OF THIS COURT; AND
BEING FEARFUL THAT THE INNOVATION AND REACH OF THE COURT'S CONCLUSIONS
WILL BE DESTRUCTIVE OF CONGRESSIONAL POLICY AND INJURIOUS TO THE PUBLIC
INTEREST, I FEEL COMPELLED TO STATE MY DISSENTING VIEWS. 

INASMUCH AS I READ THE RECORD SOMEWHAT DIFFERENTLY THAN DOES THE
COURT, MY FIRST EFFORT WILL BE TO MAKE A PLAIN AND CHRONOLOGICAL
STATEMENT OF THE RELEVANT FACTS. 

THE CHICAGO AND NORTH WESTERN RAILWAY COMPANY ("NORTH WESTERN") IS A
MAJOR INTERSTATE COMMON CARRIER BY RAILROAD.  THE ORDER OF RAILROAD
TELEGRAPHERS ("UNION") IS A RAILWAY LABOR UNION, CERTIFIED BY THE
NATIONAL MEDIATION BOARD AS THE REPRESENTATIVE OF THE STATION AGENTS
AND VARIOUS OTHER EMPLOYEES OF NORTH WESTERN.  NORTH WESTERN'S LINES
EXTEND WESTERLY AND NORTHERLY FROM CHICAGO INTO AND SERVE NINE LARGELY
AGRICULTURAL MIDWESTERN STATES.  THEY WERE LAID OUT AND CONSTRUCTED
NEAR THE MIDDLE OF THE LAST CENTURY, AND, TO ACCOMMODATE THAT DAY'S
MODE AND CONDITIONS OF RURAL TRAVEL, STATIONS WERE ESTABLISHED AT CLOSE
INTERVALS ALONG ITS LINES - ONE EVERY SEVEN TO 10 MILES ALONG ITS
BRANCH LINES THROUGH RURAL SECTIONS - TO ENABLE ITS PATRONS TO TRAVEL,
BY HORSE OR HORSES AND WAGON OVER DIRT ROADS, FROM THEIR HOMES TO THE
STATION AND RETURN IN ONE DAY. 

ALTHOUGH ORIGINALLY AN EFFICIENT AND PROFITABLE RAILROAD, NORTH
WESTERN, IN MORE RECENT YEARS, FAILED BOTH TO MAINTAIN AND TO MODERNIZE
ITS LINES, FACILITIES AND EQUIPMENT, AND ALSO PERMITTED MANY OUTMODED,
INEFFICIENT AND WASTEFUL PRACTICES TO CONTINUE - PRODUCING THE HIGHEST
RATIO OF WAGE AND SALARY EXPENSE TO THE REVENUE DOLLAR OF ALL MAJOR
AMERICAN RAILROADS - RESULTING ULTIMATELY IN ITS INABILITY EFFECTIVELY
TO COMPETE WITH NEW FORMS OF TRANSPORTATION, OR EVEN WITH MODERNIZED
RAILROADS.  IN CONSEQUENCE, ITS NET REVENUES SO STEADILY AND
EXTENSIVELY DECLINED THAT IT LOST $8,000,000 IN THE FIRST QUARTER OF
1956, AND THIS SO REDUCED ITS CASH POSITION THAT ITS PAYROLLS OF
$330,000 PER DAY TO ITS 18,000 EMPLOYEES WERE IN JEOPARDY. 

ALARMED BY THESE CONDITIONS, NORTH WESTERN'S NEW MANAGERS UNDERTOOK A
NUMBER OF STEPS IN THE SPRING OF 1956 TO IMPROVE ITS PHYSICAL CONDITION
AND COMPETITIVE POSITION, INCLUDING THE ELIMINATION OF MANY OUTMODED,
COSTLY AND WASTEFUL PRACTICES.  IT THEN HAD SEVERAL HUNDRED "ONE-MAN"
STATIONS, PRINCIPALLY LOCATED ON BRANCH LINES FROM WHICH - DUE TO LACK
OF NEED, OCCASIONED BY THE ADVENT OF PAVED ROADS AND MOTORIZED VEHICLES
- ALL PASSENGER TRAINS AND MANY FREIGHT TRAINS HAD BEEN REMOVED AND
OVER WHICH THE FEW REMAINING FREIGHT TRAINS PASSED AT HOURS WHEN MANY
OF THE AGENTS WERE NOT EVEN ON DUTY.  (FN1)  ITS STUDIES DISCLOSED MANY
INSTANCES WHERE SUCH AGENTS WERE DRAWING A FULL DAY'S PAY FOR AS LITTLE
AS 15 TO 30 MINUTES' WORK.  CONCEIVING THIS TO BE A WASTEFUL PRACTICE
AND VIOLATIVE OF THE NATIONAL TRANSPORTATION POLICY, (FN2) NORTH
WESTERN PROMULGATED A PLAN - KNOWN AS ITS CENTRAL AGENCY PLAN - WHICH
CONTEMPLATED THE DISCONTINUANCE OF A FULL-TIME AGENT AT MOST OF SUCH
STATIONS AND PROVIDED, INSTEAD, FOR A CENTRALLY LOCATED AGENT TO
PERFORM THE NECESSARY AGENCY SERVICES AT THE CENTRAL STATION AND ALSO
AT THE NEIGHBORING STATION OR STATIONS TO EITHER SIDE. 

ACCORDINGLY, NORTH WESTERN FILED PETITIONS WITH THE PUBLIC UTILITY
COMMISSIONS OF SOUTH DAKOTA, IOWA, MINNESOTA AND WISCONSIN TO
EFFECTUATE ITS CENTRAL AGENCY PLAN.  THE FIRST OF THOSE PETITIONS WAS
FILED WITH THE SOUTH DAKOTA COMMISSION ON NOVEMBER 5, 1957, ASKING
AUTHORITY TO EFFECTUATE THE CENTRAL AGENCY PLAN WITH RESPECT TO 69 "ONE
MAN" STATIONS IN THAT STATE.  HEARINGS WERE HELD BY THE COMMISSION
BEGINNING NOVEMBER 26, 1957, AND ENDING JANUARY 17, 1958.  THE UNION
APPEARED IN THAT PROCEEDING, PRESENTED EVIDENCE, A BRIEF AND AN ORAL
ARGUMENT, IN OPPOSITION TO THE PETITION.  IT CONTENDED, AMONG OTHER
THINGS, THAT ITS EXISTING BARGAINING AGREEMENT WITH NORTH WESTERN
PROHIBITED ABOLISHMENT OF ANY AGENCY JOBS WITHOUT ITS CONSENT.  ON MAY
9, 1958, THE COMMISSION ENTERED ITS ORDER.  IT FOUND THAT THE WORKLOAD
OF THE AGENTS AT THE STATIONS INVOLVED VARIED FROM 12 MINUTES TO 2
HOURS PER DAY AND AVERAGED 59 MINUTES PER DAY.  IT FURTHER FOUND: 

"THAT THE MAINTENANCE OF FULL-TIME AGENCY SERVICE AT ALL OF THE
SUBJECT STATIONS, BECAUSE OF THE LACK OF PUBLIC NEED CONSTITUTES
MISMANAGEMENT AND A DISSIPATION OF CARRIER'S REVENUES WHICH HAS AND
WILL IMPAIR ITS CAPACITY TO RENDER ADEQUATE RAIL SERVICE TO THE PUBLIC
AT REASONABLE RATES  ...  ."  (FN3) 

THEREUPON, THE COMMISSION, ELECTING TO ACT UNDER A SOUTH DAKOTA
STATUTE AUTHORIZING IT TO ORDER CHANGES TO BE MADE IN STATION
OPERATIONS WHERE NECESSARY IN THE PUBLIC INTEREST, DIRECTED NORTH
WESTERN TO MAKE THE PLAN (ESTABLISHING 16 CENTRAL AGENCY STATIONS AND
ABOLISHING 53 FULL-TIME AGENCY POSITIONS) EFFECTIVE IMMEDIATELY. 

ON DECEMBER 23, 1957, ABOUT SIX WEEKS AFTER NORTH WESTERN FILED ITS
PETITION WITH THE SOUTH DAKOTA COMMISSION, THE UNION, PURPORTING TO ACT
UNDER THE PROVISIONS OF SEC. 6 OF THE RAILWAY LABOR ACT, (FN4) SENT A
LETTER TO NORTH WESTERN REQUESTING THAT THEIR BARGAINING AGREEMENT BE
AMENDED BY ADDING THE FOLLOWING PROVISION: 

"NO POSITION IN EXISTENCE ON DECEMBER 3, 1957, WILL BE ABOLISHED OR
DISCONTINUED EXCEPT BY AGREEMENT BETWEEN THE CARRIER AND THE
ORGANIZATION." 

NORTH WESTERN RESPONDED THE NEXT DAY, SAYING THAT IT DID NOT CONSIDER
THE REQUEST TO BE A PROPER SUBJECT OF BARGAINING, (FN5) BUT IT OFFERED,
WITHOUT WAIVING ITS POSITION, TO MEET WITH THE UNION'S OFFICERS AND TO
DISCUSS THE MATTER FURTHER.  CONFERENCES WERE THEREAFTER HELD BY THE
PARTIES BUT NO AGREEMENT WAS REACHED, AND THE UNION INVOKED MEDIATION
UNDER THE RAILWAY LABOR ACT.  ON FEBRUARY 24, 1958, THE NATIONAL
MEDIATION BOARD BEGAN ITS EFFORTS TO MEDIATE THE CONTROVERSY, AND ITS
REPRESENTATIVE CONDUCTED A NUMBER OF MEETINGS BETWEEN THE PARTIES TO
THAT END, (FN6) BUT WAS NOT SUCCESSFUL, AND THEREAFTER THE BOARD,
ACTING PURSUANT TO SEC. 5, FIRST, OF THE RAILWAY LABOR ACT, (FN7) WROTE
THE PARTIES ON MAY 27, REQUESTING THEM TO SUBMIT THE CONTROVERSY TO
ARBITRATION UNDER THE PROVISIONS OF SEC. 8 OF THE RAILWAY LABOR ACT. 
(FN8)  BUT BOTH PARTIES DECLINED - THE UNION ON MAY 28 AND NORTH
WESTERN ON JUNE 12 - AND, ON JUNE 16, THE BOARD TERMINATED ITS SERVICES
AND SO ADVISED THE PARTIES IN WRITING. 

ON JULY 10, THE UNION SENT TO ITS MEMBERS A STRIKE BALLOT UNDER AN
ACCOMPANYING LETTER.  (FN9) THE VOTE WAS ALMOST UNANIMOUS IN FAVOR OF A
STRIKE, AND, ON AUGUST 18, THE UNION CALLED A STRIKE OF ITS MEMBERS TO
BEGIN AT 6 A.M. ON AUGUST 21.  (FN10)  A RENEWED PROFFER OF MEDIATION
SERVICES BY THE BOARD WAS ACCEPTED BY THE PARTIES AND, THROUGH IT,
FURTHER EFFORTS WERE MADE ON AUGUST 19 TO COMPOSE THE CONTROVERSY, BUT
WITHOUT SUCCESS, AND, ON AUGUST 20, THE BOARD AGAIN ADVISED THE PARTIES
THAT IT HAD TERMINATED ITS SERVICES. 

ON AUGUST 20, NORTH WESTERN FILED A COMPLAINT AGAINST THE UNION AND
VARIOUS OF ITS OFFICIALS IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, ALLEGING THAT THE UNION'S CONTRACT
DEMAND WAS NOT A LAWFULLY BARGAINABLE SUBJECT UNDER THE RAILWAY LABOR
ACT; THAT THE IMPENDING STRIKE, CALLED TO FORCE ACCEPTANCE OF THAT
DEMAND BY NORTH WESTERN, WOULD BE ILLEGAL; THAT NORTH WESTERN HAD A
RIGHT ARISING UNDER THE LAWS OF THE UNITED STATES, PARTICULARLY THE
INTERSTATE COMMERCE ACT AND THE RAILWAY LABOR ACT, TO BE FREE OF SUCH
AN ILLEGAL STRIKE, AND IT PRAYED THAT IT BE ENJOINED.  THE COURT
ENTERED A TEMPORARY RESTRAINING ORDER ON THAT DATE.  THEREAFTER,
FOLLOWING FULL HEARING, THE COURT HELD THAT THE UNION'S DEMAND "RELATES
TO 'RATES OF PAY, RULES AND WORKING CONDITIONS' AND IS A BARGAINABLE
ISSUE UNDER THE RAILWAY LABOR ACT"; THAT A STRIKE TO FORCE ACCEPTANCE
OF THAT DEMAND WOULD NOT BE UNLAWFUL; AND, ON SEPTEMBER 8, 1958, THE
COURT ENTERED ITS DECREE RESTRAINING THE STRIKE UNTIL MIDNIGHT,
SEPTEMBER 19, DENYING ANY FURTHER INJUNCTIVE RELIEF, (FN11) AND
DISMISSING THE COMPLAINT.  THE COURT OF APPEALS, HOLDING THAT THE
UNION'S CONTRACT DEMAND WAS NOT A LAWFULLY BARGAINABLE ONE AND THAT ITS
ACCEPTANCE COULD NOT LEGALLY BE FORCED BY A STRIKE, REVERSED AND
REMANDED WITH DIRECTIONS TO ENTER AN INJUNCTION AS PRAYED IN THE
COMPLAINT.  264 F.2D 254.  THIS COURT GRANTED CERTIORARI, 361 U.S. 809,
AND NOW REVERSES THE JUDGMENT OF THE COURT OF APPEALS UPON GROUNDS
WHICH, WITH DEFERENCE, I THINK ARE NOT ONLY INJURIOUS TO THE PUBLIC
INTEREST BUT ALSO DEMONSTRABLY LEGALLY ERRONEOUS, AS I SHALL ENDEAVOR
TO SHOW. 

CONGRESS, IN COMPREHENSIVELY PROVIDING FOR THE REGULATION OF
RAILROADS, THEIR TRANSPORTATION SERVICES AND THEIR EMPLOYER-EMPLOYEE
RELATIONS, HAS DECLARED ITS POLICIES IN SEVERAL RELATED ACTS, INCLUDING
PART I OF THE INTERSTATE COMMERCE ACT, (FN12) THE RAILWAY LABOR ACT,
(FN13) AND THE NORRIS-LAGUARDIA ACT, (FN14) AND, AT LEAST IN CASES SUCH
AS THIS, NONE OF THEM MAY MEANINGFULLY BE READ IN ISOLATION BUT ONLY
TOGETHER AS, FOR THEY ARE IN FACT, AN INTEGRATED PLAN OF RAILROAD
REGULATION.  AND IF, AS IS FREQUENTLY THE CASE IN SUCH UNDERTAKINGS,
THERE BE OVERLAPPINGS, "WE MUST DETERMINE HERE HOW FAR CONGRESS
INTENDED ACTIVITIES UNDER ONE OF THESE POLICIES TO NEUTRALIZE THE
RESULTS ENVISIONED BY THE OTHER."  ALLEN BRADLEY CO. V. LOCAL UNION,
325 U.S. 797, 806. 

BY PART I OF THE INTERSTATE COMMERCE ACT, CONGRESS HAS PROVIDED A
PERSUASIVE SCHEME OF REGULATION OF ALL COMMON CARRIERS ENGAGED IN
TRANSPORTATION BY RAILROAD IN INTERSTATE COMMERCE.  THE DECLARED POLICY
OF THAT ACT WAS TO PROMOTE ECONOMICAL AND EFFICIENT TRANSPORTATION
SERVICES AT REASONABLE CHARGES (FN15) AND, AS THIS COURT HAS SAID, "IT
IS A PRIMARY AIM OF THAT POLICY TO SECURE THE AVOIDANCE OF WASTE.  THAT
AVOIDANCE, AS WELL AS THE MAINTENANCE OF SERVICE, IS VIEWED AS A DIRECT
CONCERN OF THE PUBLIC."  TEXAS V. UNITED STATES, 292 U.S. 522, 530. 
"CONGRESS HAS LONG MADE THE MAINTENANCE AND DEVELOPMENT OF AN
ECONOMICAL AND EFFICIENT RAILROAD SYSTEM A MATTER OF PRIMARY NATIONAL
CONCERN.  ITS LEGISLATION MUST BE READ WITH THIS PURPOSE IN MIND." 
SEABOARD R. CO. V. DANIEL, 333 U.S. 118, 124-125. 

TO AID IN EFFECTUATING THAT POLICY, CONGRESS HAS CONTEMPLATED THE
ABANDONMENT OF RAILROAD LINES, STATIONS, DEPOTS AND OTHER FACILITIES
AND SERVICES WHEN FOUND BY DESIGNATED PUBLIC REGULATORY BODIES TO BE
BURDENSOME AND NO LONGER REQUIRED TO SERVE THE PUBLIC CONVENIENCE AND
NECESSITY.  TO THIS END, IT HAS EMPOWERED THE INTERSTATE COMMERCE
COMMISSION, UPON APPLICATION AND AFTER NOTICE AND PUBLIC HEARING, TO
ISSUE A CERTIFICATE AUTHORIZING THE ABANDONMENT OF "ALL OR ANY PORTION
OF A LINE OR RAILROAD," AND IT HAS PROVIDED THAT "FROM AND AFTER
ISSUANCE OF SUCH CERTIFICATE  ...  THE CARRIER BY RAILROAD MAY, WITHOUT
SECURING APPROVAL OTHER THAN SUCH CERTIFICATE  ...  PROCEED WITH THE
... ABANDONMENT COVERED THEREBY."  (FN16)  AND IN THE TRANSPORTATION
ACT OF 1958 (72 STAT. 568), CONGRESS HAS EMPOWERED THE COMMISSION,
UNDER STATED CONDITIONS, TO AUTHORIZE THE ABANDONMENT OF "ANY TRAIN OR
FERRY."  (FN17)  HOWEVER, CONGRESS HAS NOT SOUGHT COMPLETELY TO
ACCOMPLISH ITS ABANDONMENT POLICIES THROUGH THE COMMISSION.  RATHER, IT
HAS SOUGHT TO MAKE USE OF STATE REGULATORY COMMISSIONS, AS ADDITIONAL
INSTRUMENTS FOR THE EFFECTUATION OF ITS POLICIES, IN RESPECT TO THE
ABANDONMENT OF SOME RAILROAD FACILITIES AND SERVICES.  AMONG OTHERS, IT
HAS LONG LEFT TO STATE REGULATORY COMMISSIONS ABANDONMENTS OF RAILROAD
STATIONS AND STATION AGENCY SERVICE; AND, IN 1958, AFTER EXTENSIVE
REVIEW OF THAT SUBJECT IN THE PROCESS OF ENACTING THE TRANSPORTATION
ACT OF 1958, IT DELIBERATELY REAFFIRMED THAT POLICY.  (FN18)  MOREOVER,
IN ITS REPORT ON S. 3778, WHICH CULMINATED IN THE TRANSPORTATION ACT OF
1958, THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
CRITICALLY ATTRIBUTED A MAJOR PART OF THE FINANCIAL PLIGHT OF THE
RAILROADS TO THEIR FAILURE TO APPLY TO REGULATORY BODIES FOR PERMISSION
TO ABANDON BURDENSOME AND NEEDLESS SERVICES IN ACCORDANCE WITH
CONGRESSIONAL POLICY, AND STRONGLY ADVOCATED THAT SUCH BE DONE. 
(FN19) 

FOR THE FAIR AND FIRM EFFECTUATION OF THESE POLICIES, CONGRESS HAS
PROVIDED THAT ISSUES RESPECTING THE PROPRIETY OF AN ABANDONMENT SHALL
BE DETERMINED BY A PUBLIC REGULATORY BODY.  IT HAS CONTEMPLATED THAT
THE CARRIER SHALL PROPOSE TO THE PROPER REGULATORY BODY THE ABANDONMENT
OF PARTICULAR FACILITIES OR SERVICES AND THAT, AFTER NOTICE AND HEARING
- AT WHICH ALL PERSONS AFFECTED, INCLUDING EMPLOYEES AND THEIR UNION
REPRESENTATIVES, MAY APPEAR AND BE HEARD - THE PUBLIC REGULATORY BODY
SHALL DETERMINE WHETHER THE PROPOSAL IS IN THE PUBLIC INTEREST, AND ITS
ORDER, UNLESS REVERSED ON JUDICIAL REVIEW, SHALL BE BINDING UPON ALL
PERSONS.  THESE PROCEDURES PLAINLY EXCLUDE ANY RIGHT OR POWER OF A
CARRIER, AT ITS WILL ALONE, TO EFFECTUATE, OR OF A LABOR UNION
REPRESENTING ITS EMPLOYEES TO VETO, ANY PROPOSED ABANDONMENT.  ALTHOUGH
BOTH MAY BE HEARD, NEITHER OF THEM, NOR THE TWO IN AGREEMENT, EVEN IF
THEIR AGREEMENT BE EVIDENCED BY AN EXPRESS CONTRACT, MAY USURP THE
COMMISSION'S DECISIONAL FUNCTION BY DICTATING THE RESULT OR THWARTING
ITS EFFECT.  IT IS OBVIOUS THAT ANY ABANDONMENT, AUTHORIZED BY A PROPER
REGULATORY BODY, WILL RESULT IN ABOLISHMENT OF THE JOBS THAT WERE
INVOLVED IN THE ABANDONED SERVICE.  AND INASMUCH AS THE MAINTENANCE OF
THESE JOBS CONSTITUTED AT LEAST A PART OF THE WASTEFUL BURDEN THAT
NECESSITATED THE ABANDONMENT, IT IS EQUALLY OBVIOUS THAT CONGRESS
INTENDED THEIR ABOLISHMENT.  YET, HERE, THE UNION HAS DEMANDED, AND
THREATENS TO FORCE BY A STRIKE, ACCEPTANCE BY THE CARRIER OF A COVENANT
THAT NO JOB IN EXISTENCE ON DECEMBER 3, 1957, WILL BE ABOLISHED WITHOUT
ITS CONSENT.  CERTAINLY THAT DEMAND RUNS IN THE TEETH OF THE RECITED
PROVISIONS AND POLICIES OF THE INTERSTATE COMMERCE ACT.  IT PLAINLY
WOULD DESTROY THE PUBLIC REGULATION OF ABANDONMENTS, PROVIDED AND
CONTEMPLATED BY CONGRESS IN THE PUBLIC INTEREST, AND RENDER THEM
SUBJECT TO THE UNION'S WILL ALONE.  A DEMAND FOR SUCH A CONTRACTUAL
POWER SURELY IS AN UNLAWFUL DEMAND.    THE UNION ARGUES, AND THE COURT
SEEMS TO FIND, THAT THERE IS A BASIS FOR THE CLAIMED LEGALITY OF THE
UNION'S DEMAND IN THE PROVISION OF SEC. 5(2)(F) OF THE INTERSTATE
COMMERCE ACT (FN20) THAT THE COMMISSION IN APPROVING RAILROAD MERGERS
OR CONSOLIDATIONS "SHALL REQUIRE A FAIR AND EQUITABLE ARRANGEMENT TO
PROTECT THE INTERESTS OF THE RAILROAD EMPLOYEES AFFECTED."  INSTEAD OF
SUPPORTING LEGALITY OF THE UNION'S DEMAND, I THINK THE PROVISIONS OF
THAT SECTION AND ITS LEGISLATIVE HISTORY ARE FURTHER PROOF OF ITS
ILLEGALITY.  WHILE THAT SECTION AUTHORIZES THE COMMISSION TO REQUIRE
TEMPORARY MITIGATION OF HARDSHIPS TO EMPLOYEES DISPLACED BY SUCH
UNIFICATIONS, NOTHING IN IT AUTHORIZES THE COMMISSION TO FREEZE
EXISTING JOBS.  HOWEVER, IN THE COURSE OF ITS ENACTMENT AN EFFORT WAS
MADE TO AMEND IT TO THAT END.  ON THE FLOOR OF THE HOUSE,
REPRESENTATIVE HARRINGTON ADVOCATED THE FOLLOWING PROVISO: 

"PROVIDED, HOWEVER, THAT NO SUCH TRANSACTION SHALL BE APPROVED BY THE
COMMISSION IF SUCH TRANSACTION WILL RESULT IN UNEMPLOYMENT OR
DISPLACEMENT OF EMPLOYEES OF THE CARRIER OR CARRIERS, OR IN THE
IMPAIRMENT OF EXISTING EMPLOYMENT RIGHTS OF SAID EMPLOYEES."  (FN21) 

WHILE THE BILL WAS IN CONFERENCE, THE LEGISLATIVE COMMITTEE OF THE
INTERSTATE COMMERCE COMMISSION SENT A COMMUNICATION TO CONGRESS
CONDEMNING THE PRINCIPLE OF THE HARRINGTON AMENDMENT IN THE FOLLOWING
WORDS: 

"AS FOR THE HARRINGTON PROVISO, THE OBJECT OF UNIFICATIONS IS TO SAVE
EXPENSE, USUALLY BY THE SAVING OF LABOR.  EMPLOYEES WHO MAY BE
DISPLACED SHOULD, IN THE CASE OF RAILROAD UNIFICATIONS, BE PROTECTED BY
SOME SUCH PLAN AS IS EMBODIED IN THE SO-CALLED 'WASHINGTON AGREEMENT'
OF 1936 BETWEEN THE RAILROAD MANAGEMENTS AND LABOR ORGANIZATIONS
PROVIDING FOR THE MITIGATION OF HARDSHIPS BY THE PAYMENT OF CERTAIN
MONETARY BENEFITS FOR A LIMITED PERIOD TO EMPLOYEES WHOSE JOBS ARE
ABOLISHED BY SUCH APPROVED UNIFICATIONS.  THE PROVISO, BY PROHIBITING
ANY DISPLACEMENT OF EMPLOYEES, GOES MUCH TOO FAR, AND IN THE LONG RUN
WILL DO MORE HARM THAN GOOD TO THE EMPLOYEES."  (FN22) 

CONGRESS REJECTED THE HARRINGTON PROVISO IN THE FORM PROPOSED.  YET,
THE UNION'S DEMAND HERE IS DESIGNED TO ACCOMPLISH THE VERY PURPOSE THAT
CONGRESS REJECTED.  OF THE HARRINGTON PROVISO THIS COURT SAID IN
RAILWAY LABOR EXECUTIVES' ASSN. V. UNITED STATES, 339 U.S. 142, THAT IT
"THREATENED TO PREVENT ALL CONSOLIDATIONS TO WHICH IT RELATED BUT
CONGRESS  ...  MADE IT WORKABLE BY PUTTING A TIME LIMIT UPON ITS
OTHERWISE PROHIBITORY EFFECT."  339 U.S., AT 151, 153.  BUT CONGRESS
ACTUALLY DID MORE.  IT ELIMINATED ANY POWER TO FREEZE EXISTING JOBS. 
IT IS NOT TO BE DOUBTED THAT A CARRIER AND A LABOR UNION REPRESENTING
THE CARRIER'S EMPLOYEES, LAWFULLY MAY BARGAIN ABOUT AND AGREE UPON
MATTERS IN MITIGATION OF HARDSHIPS TO EMPLOYEES WHO ARE DISPLACED BY
RAILROAD UNIFICATIONS OR ABANDONMENTS; BUT THEY MAY NOT AGREE, NOR MAY
ANY REGULATORY BODY ORDER, THAT NO JOBS SHALL BE ABOLISHED, AND THUS
DEFEAT UNIFICATIONS OR ABANDONMENTS REQUIRED IN THE PUBLIC INTEREST. 
RAILWAY LABOR EXECUTIVES' ASSN. V. UNITED STATES, SUPRA; INTERSTATE
COMMERCE COMM'N V. RAILWAY LABOR EXECUTIVES' ASSN., 315 U.S. 373;
UNITED STATES V. LOWDEN, 308 U.S. 225. 

THERE IS NO DISPUTE IN THE RECORD THAT THE CARRIER SOUGHT TO BARGAIN
AND AGREE WITH THE UNION UPON MATTERS IN MITIGATION OF HARDSHIPS TO
EMPLOYEES DISPLACED BY THE STATION ABANDONMENTS.  IT OFFERED TO BARGAIN
ABOUT (1) TRANSFERRING THE AGENTS AFFECTED TO PRODUCTIVE JOBS, (2)
LIMITING THE JOB ABOLISHMENTS TO AN AGREED NUMBER PER YEAR, AND (3)
PAYING SUPPLEMENTAL UNEMPLOYMENT BENEFITS TO THE EMPLOYEES AFFECTED. 
(FN23)  SHORT OF FOREGOING THE STATION ABANDONMENTS, THIS IS ALL IT
LAWFULLY COULD DO.  IT IS NOT SUGGESTED THAT IT SHOULD HAVE DONE MORE
IN THIS RESPECT.  INDEED, THE UNION REFUSED EVEN TO DISCUSS THESE
PROPOSALS.  (FN24)  INSTEAD, AS ITS PRESIDENT TESTIFIED AT THE TRIAL,
THE ONLY "ALTERNATIVE" THE UNION "OFFERED THE NORTH WESTERN RAILROAD
WAS TO COMPLY WITH THIS RULE OR STRIKE."  (FN25) 

THIS ALSO ANSWERS THE COURT'S ARGUMENT THAT THERE IS NOTHING IN THE
INTERSTATE COMMERCE ACT "MAKING IT UNLAWFUL FOR UNIONS TO WANT TO
DISCUSS WITH RAILROADS ACTIONS THAT MAY VITALLY AND ADVERSELY AFFECT
THE SECURITY, SENIORITY AND STABILITY OF RAILROAD JOBS."  THE QUOTED
STATEMENT IS LITERALLY TRUE.  BUT THE FURTHER TRUTH IS THAT THE CARRIER
OFFERED TO BARGAIN AND AGREE WITH THE UNION ABOUT THOSE MATTERS, BUT
THE UNION REFUSED EVEN TO DISCUSS THEM.  NOTE 6, ANTE.  THE UNION'S
DEMAND WAS NOT FOR A RIGHT "TO DISCUSS" SUCH MATTERS WITH THE CARRIER,
BUT WAS, RATHER, THAT THE CARRIER AGREE THAT NO JOBS IN EXISTENCE ON
DECEMBER 3, 1957, BE ABOLISHED WITHOUT THE UNION'S CONSENT.  AND THE
ONLY "ALTERNATIVE" IT OFFERED WAS:  "COMPLY WITH THIS RULE OR STRIKE." 
IBID.  THE FOREGOING LIKEWISE ANSWERS THE COURT'S ARGUMENT THAT THE
UNION "MERELY ASKED FOR A CONTRACTUAL RIGHT TO BARGAIN WITH THE
RAILROAD ABOUT ANY VOLUNTARY STEPS IT MIGHT TAKE TO ABANDON STATIONS
...  AND THUS ABOLISH JOBS."  PLAINLY THE UNION'S DEMAND WAS NOT FOR A
RIGHT "TO BARGAIN WITH" THE CARRIER ABOUT "ABOLISHING JOBS," BUT WAS
FOR A UNILATERAL RIGHT TO PROHIBIT THE ABOLISHMENT OF ANY JOB WITHOUT
ITS CONSENT. 

THE COURT FAILS TO FIND ANY TESTIMONY IN THE RECORD "THAT THIS UNION
HAS SET ITSELF UP IN DEFIANCE OF ANY STATE MANDATORY ORDER."  ALTHOUGH,
IN MY VIEW, THE QUESTION IS NOT WHETHER IT HAS SET ITSELF UP IN
DEFIANCE OF ANY VALID EXISTING STATE MANDATORY ORDER, BUT RATHER IS
WHETHER IT LAWFULLY MAY DEMAND, AND FORCE BY A STRIKE, ACCEPTANCE OF A
COVENANT IN DEROGATION OF THE LAW; YET, IN VERY TRUTH, IT "HAS SET
ITSELF UP IN DIFIANCE," OR, AT LEAST, IN DEROGATION, OF A "STATE
MANDATORY ORDER."  AS EARLIER NOTED, THE ORDER OF THE SOUTH DAKOTA
COMMISSION - THE VALIDITY OF WHICH CANNOT BE QUESTIONED HERE - WAS A
MANDATORY ONE.  IT DIRECTED THE CARRIER TO MAKE THE CENTRAL AGENCY PLAN
EFFECTIVE IN THAT STATE AND, THEREUNDER, FORTHWITH TO ABOLISH 53 FULL
TIME AGENCY JOBS.  THAT ORDER WAS ENTERED ON MAY 9, 1958, AND IF THE
UNION'S DEMAND, THAT NO JOB IN EXISTENCE ON DECEMBER 3, 1957, MAY BE
ABOLISHED WITHOUT ITS CONSENT, IS A LAWFUL ONE AND MAY BE ENFORCED BY A
STRIKE, THEN THE SOUTH DAKOTA ORDER IS NOT ONLY DEFIED BUT DEFIED
SUCCESSFULLY.  MOREOVER, WHILE SUCH ORDERS OF STATE COMMISSIONS, LIKE
THOSE OF THE INTERSTATE COMMERCE COMMISSION, ARE IN THE NATURE OF
THINGS USUALLY PERMISSIVE IN CHARACTER, THEY ARE NEVERTHELESS BINDING
ADMINISTRATIVE DETERMINATIONS MADE, AS CONGRESS CONTEMPLATED AND MR.
JUSTICE BRANDEIS SAID, "TO PROTECT INTERSTATE COMMERCE FROM UNDUE
BURDENS," COLORADO V. UNITED STATES, 271 U.S. 153, 162, AND MAY NOT BE
OVERRIDDEN OR THWARTED BY PRIVATE VETO. 

CARRIERS AND THEIR EMPLOYEES TO EXERT EVERY REASONABLE EFFORT "TO MAKE
AND MAINTAIN AGREEMENTS CONCERNING RATES OF PAY, RULES, AND WORKING
CONDITIONS, AND TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF THE
APPLICATION OF SUCH AGREEMENTS OR OTHERWISE."  (FN26)  HERE, THE
UNION'S DEMAND WAS SIMPLY FOR A COVENANT THAT NO EXISTING JOBS MAY BE
ABOLISHED WITHOUT ITS CONSENT.  IT THUS SEEMS PLAIN THAT THE DEMAND DID
NOT RELATE TO THE "RATES" OF COMPENSATION TO BE PAID TO EMPLOYEES NOR
TO THEIR "WORKING CONDITIONS," BUT, RATHER, IT RELATED SOLELY TO
WHETHER THE EMPLOYMENT RELATION, AS TO ANY EXISTING JOB, MIGHT BE
SEVERED ALTOGETHER.  IT, THEREFORE, SEEMS CLEAR ENOUGH THAT THE
DEMANDED COVENANT WAS, IN TERMS, BEYOND THE PURVIEW OF SEC. 2, FIRST. 
BUT EVEN IF THIS CONCLUSION MAY BE DOUBTED, SURELY IT MUST BE AGREED
THAT CONGRESS DID NOT CONTEMPLATE THAT AGREEMENTS MIGHT BE MADE, UNDER
THE AEGIS OF THAT SECTION, IN DEROGATION OF THE COMMANDS, POLICIES AND
PURPOSES OF RELATED ACTS WHICH IT HAS PROMULGATED FOR THE REGULATION OF
CARRIERS AND THEIR EMPLOYER-EMPLOYEE RELATIONS IN THE PUBLIC INTEREST. 
HERE, AS HAS BEEN SHOWN, THE UNION'S DEMAND WAS IN DEROGATION OF THE
PROVISIONS AND POLICIES OF THE INTERSTATE COMMERCE ACT.  IT COULD NOT
THEREFORE BE A LAWFULLY BARGAINABLE SUBJECT WITHIN THE PURVIEW OF SEC.
2, FIRST, OF THE RAILWAY LABOR ACT.  THE CARRIER COULD NOT LAWFULLY
ACCEPT IT, (FN27) AND HENCE A STRIKE TO FORCE ITS ACCEPTANCE WOULD BE
ONE TO FORCE A VIOLATION OF THE LAW. 

SURELY, IN SUCH CIRCUMSTANCES, THE CARRIER, IN DISCHARGING ITS DUTY
TO SAFEGUARD THE PUBLIC INTEREST, (FN28) HAS A LEGAL RIGHT TO BE FREE
OF A STRIKE TO FORCE IT TO ACCEPT A DEMAND WHICH CONGRESS HAS MADE
UNLAWFUL.  BUT THERE IS NO ADMINISTRATIVE REMEDY IN SUCH CASE, AND,
HENCE, THE LEGAL RIGHT WILL BE SACRIFICED, AND CONGRESS' POLICIES WILL
BE THWARTED, UNLESS A PREVENTIVE JUDICIAL REMEDY IS AVAILABLE. 
CERTAINLY CONGRESS DID NOT INTEND TO CREATE AND "TO HOLD OUT TO THE
CARRIER AND THE PUBLIC AN ILLUSORY RIGHT FOR WHICH IT WAS DENYING THEM
A REMEDY."  GRAHAM V. BROTHERHOOD OF FIREMEN, 338 U.S. 232, 240. 

NOR DOES THE NORRIS-LAGUARDIA ACT RENDER FEDERAL COURTS IMPOTENT TO
ENJOIN UNLAWFUL CONDUCT OR STRIKES TO FORCE ACCEPTANCE OF UNLAWFUL
DEMANDS.  THAT ACT, IN TERMS, PERMITS FEDERAL COURTS TO ENJOIN
"UNLAWFUL ACTS THAT HAVE BEEN THREATENED AND WILL BE COMMITTED UNLESS
RESTRAINED."  (FN29) THIS COURT HAS CONSISTENTLY HELD THAT THE NORRIS
LAGUARDIA ACT DOES NOT PREVENT A FEDERAL COURT FROM ENJOINING AN
UNLAWFUL ABUSE OF POWER CONFERRED UPON A LABOR UNION BY THE RAILWAY
LABOR ACT OF A THREATENED STRIKE TO FORCE ACCEPTANCE OF AN UNLAWFUL
DEMAND. 

IN BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER & INDIANA R.
CO., 353 U.S. 30, A UNION THREATENED A STRIKE TO FORCE A CARRIER TO
ACCEPT DEMANDS WHICH CONGRESS HAD PLACED WITHIN THE EXCLUSIVE
JURISDICTION OF THE RAILROAD ADJUSTMENT BOARD.  HOLDING THAT THE
DEMANDS WERE IN DEROGATION OF THAT ACT OF CONGRESS AND THEREFORE
ILLEGAL, A FEDERAL COURT ENJOINED THE THREATENED STRIKE TO ENFORCE
THEM.  THE UNION CONTENDED HERE THAT THE COURT WAS WITHOUT JURISDICTION
TO ISSUE THE INJUNCTION BECAUSE "THE NORRIS-LAGUARDIA ACT HAS WITHDRAWN
THE POWER OF FEDERAL COURTS TO ISSUE INJUNCTIONS IN LABOR DISPUTES AND
THAT THE LIMITATION  ...  APPLIES WITH FULL FORCE TO ALL RAILWAY LABOR
DISPUTES."  353 U.S., AT 39-40.  IN REJECTING THAT CONTENTION, THIS
COURT SAID: 

"WE HOLD THAT THE NORRIS-LAGUARDIA ACT CANNOT BE READ ALONE IN
MATTERS DEALING WITH RAILWAY LABOR DISPUTES.  THERE MUST BE AN
ACCOMMODATION OF THAT STATUTE AND THE RAILWAY LABOR ACT SO THAT THE
OBVIOUS PURPOSE IN THE ENACTMENT OF EACH IS PRESERVED.  WE THINK THAT
THE PURPOSES OF THESE ACTS ARE RECONCILABLE."  353 U.S., AT 40. 

AND FINDING THAT THE UNION'S DEMANDS VIOLATED THE PROVISIONS OF THE
RAILWAY LABOR ACT, THIS COURT HELD "THAT THE SPECIFIC PROVISIONS OF THE
RAILWAY LABOR ACT TAKE PRECEDENCE OVER THE MORE GENERAL PROVISIONS OF
THE NORRIS-LAGUARDIA ACT," AND, REAFFIRMING ITS DECISION IN BROTHERHOOD
OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768, IT FURTHER HELD "'THAT
THE DISTRICT COURT HAD JURISDICTION AND POWER TO ENJOIN THE THREATENED
STRIKE NOTWITHSTANDING THE PROVISIONS OF THE NORRIS-LAGUARDIA ACT.'" 
353 U.S., AT 41-42. 

THERE, AS HERE, THE UNION'S DEMAND WAS IN DEROGATION OF THE SPECIFIC
PROVISIONS OF AN ACT OF CONGRESS, AND HERE, AS THERE, THOSE SPECIFIC
PROVISIONS MUST "TAKE PRECEDENCE OVER THE MORE GENERAL PROVISIONS OF
THE NORRIS-LAGUARDIA ACT." 

IN VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515,
THIS COURT HELD THAT A FEDERAL COURT COULD LAWFULLY ISSUE AN INJUNCTION
IN A LABOR DISPUTE THAT WAS GOVERNED BY THE SPECIFIC PROVISIONS OF A
FEDERAL STATUTE, AND THAT "SUCH PROVISIONS CANNOT BE RENDERED NUGATORY
BY THE EARLIER AND MORE GENERAL PROVISIONS OF THE NORRIS-LAGUARDIA
ACT."  300 U.S., AT 563. 

STEELE V. LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192, INVOLVED THE
UNLAWFUL MISUSE BY A UNION OF THE POWERS CONFERRED UPON IT BY THE
RAILWAY LABOR ACT.  OBSERVING THAT "THERE IS NO MODE OF ENFORCEMENT OF
THE RIGHTS THAT WERE BEING DENIED BY SUCH MISUSE OF POWERS OTHER THAN
RESORT TO THE COURTS," THIS COURT HELD THAT A FEDERAL COURT HAD THE
"JURISDICTION AND DUTY TO AFFORD A REMEDY FOR A BREACH OF STATUTORY
RIGHTS."  323 U.S., AT 207.  ON ALMOST IDENTICAL FACTS, THIS COURT
REAFFIRMED THAT PRINCIPLE IN TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE
FIREMEN & ENGINEMEN, 323 U.S. 210.  IN A SIMILAR FACTUAL SITUATION,
THIS COURT HELD IN GRAHAM V. BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN, 338 U.S. 232, THAT A FEDERAL COURT MAY ENJOIN A LABOR UNION
FROM UNLAWFULLY USING OR ABUSING POWERS CONFERRED UPON IT BY THE
RAILWAY LABOR ACT, NOTWITHSTANDING THE NORRIS-LAGUARDIA ACT.   AND,
AFTER REVIEWING THE THEN-EXISTING CASES, THE COURT CONCLUDED: 

"IF, IN SPITE OF THE VIRGINIAN, STEELE, AND TUNSTALL CASES, SUPRA,
THERE REMAINS ANY ILLUSION THAT UNDER THE NORRIS-LAGUARDIA ACT THE
FEDERAL COURTS ARE POWERLESS TO ENFORCE THESE RIGHTS, WE DISPEL IT
NOW."  338 U.S., AT 240. 

BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768, WAS AN
ACTION TO ENJOIN A UNION AND A CARRIER FROM ENFORCING THE PROVISIONS OF
A CONTRACT, MADE UNDER THE THREAT OF A STRIKE, THAT UNLAWFULLY DEPRIVED
A CLASS OF RAILROAD EMPLOYEES OF LEGAL RIGHTS WHICH THIS COURT HELD HAD
BEEN IMPLIEDLY VOUCHSAFED TO THEM BY THE RAILWAY LABOR ACT.  FINDING
THAT THE QUESTIONED PROVISIONS OF THAT CONTRACT WERE "UNLAWFUL" AND
THAT THE INJURED PERSONS "MUST LOOK TO A JUDICIAL REMEDY TO PREVENT THE
SACRIFICE OR OBLITERATION OF THEIR RIGHTS UNDER THE RAILWAY LABOR ACT
INASMUCH AS NO ADEQUATE ADMINISTRATIVE REMEDY CAN BE AFFORDED BY THE
NATIONAL RAILROAD ADJUSTMENT OR MEDIATION BOARDS," THIS COURT CONCLUDED
"THAT THE DISTRICT COURT HAS JURISDICTION AND POWER TO ISSUE NECESSARY
INJUNCTIVE ORDERS NOTWITHSTANDING THE PROVISIONS OF THE NORRIS
LAGUARDIA ACT.  WE NEED ADD NOTHING TO WHAT WAS SAID ABOUT
INAPPLICABILITY OF THAT ACT IN THE STEELE CASE AND IN GRAHAM V.
BROTHERHOOD OF FIREMEN, 338 U.S. 232, 239-240."  343 U.S., AT 774. 
RESTING UPON ITS CONCLUSION THAT THE UNION'S DEMAND HERE WAS A LAWFUL
ONE, THE COURT RELEGATES THE VIRGINIAN, STEELE, TUNSTALL, GRAHAM AND
HOWARD CASES TO A FOOTNOTE, AND SAYS, "NONE OF THESE CASES, HOWEVER,
ENJOINED CONDUCT WHICH THE NORRIS-LAGUARDIA ACT WITHDREW FROM THE
INJUNCTIVE POWER OF THE FEDERAL COURTS."  DOES THE COURT MEAN BY THIS
STATEMENT THAT, ALTHOUGH IT ENJOINED ENFORCEMENT OF THE ILLEGAL
PROVISIONS OF THE CONTRACT WHICH HAD BEEN FORCED UPON THE CARRIER BY
"THE THREAT OF A STRIKE" IN THE HOWARD CASE, IT WOULD NOT, IF ASKED,
HAVE ENJOINED THE STRIKE WHICH FORCED ACCEPTANCE BY THE CARRIER OF THAT
UNLAWFUL CONTRACT?  AT ALL EVENTS, IT CANNOT BE DENIED, AND THE COURT
CONCEDES, THAT THE CHICAGO RIVER CASE HOLDS THAT A THREATENED STRIKE TO
FORCE COMPLIANCE WITH UNLAWFUL DEMANDS MAY BE ENJOINED.  THERE, JUST AS
HERE, A THREATENED STRIKE WAS ENJOINED.  THERE, AS HERE, THE INJUNCTION
ISSUED BECAUSE THE UNION'S DEMAND WAS NOT A LAWFULLY BARGAINABLE ONE
UNDER THE RAILWAY LABOR ACT.  THE DEMANDS IN THE CHICAGO RIVER CASE
WERE UNLAWFUL BECAUSE JURISDICTION OVER THEIR SUBJECT MATTER HAD BEEN
EXCLUSIVELY VESTED BY CONGRESS IN THE RAILROAD ADJUSTMENT BOARD, WHILE
IN THIS CASE THE DEMAND IS UNLAWFUL BECAUSE JURISDICTION OVER ITS
SUBJECT MATTER HAS BEEN EXCLUSIVELY VESTED PARTLY IN THE INTERSTATE
COMMERCE COMMISSION AND PARTLY IN STATE REGULATORY COMMISSIONS. 
TODAY'S ATTEMPTED DISTINCTIONS OF THAT CASE WERE ADVANCED IN THAT CASE,
BUT WERE FOUND "INAPPOSITE," 353 U.S., AT 42.  BEING "INAPPOSITE"
THERE, THEY ARE SO HERE.  I SUBMIT THAT, ON THE POINT IN ISSUE, THE
CHICAGO RIVER CASE IS INDISTINGUISHABLE FROM THIS ONE, AND THAT IF THE
NORRIS-LAGUARDIA ACT DID NOT PROHIBIT A FEDERAL COURT FROM ISSUING AN
INJUNCTION IN THAT CASE, IT DOES NOT DO SO IN THIS ONE. 

IT IS TO BE NOTED THAT THE COURT DOES NOT SAY THAT THE NORRIS
LAGUARDIA ACT PROHIBITS FEDERAL COURTS FROM ENJOINING THREATENED
STRIKES TO FORCE ACCEPTANCE OF ILLEGAL DEMANDS.  IT SAYS, RATHER, THAT
"EVEN IF A NORRIS-LAGUARDIA 'LABOR DISPUTE' COULD NOT ARISE OUT OF AN
UNLAWFUL BARGAINING DEMAND  ...  THE UNION'S PROPOSAL HERE WAS NOT
UNLAWFUL."  IF IT FAIRLY MAY BE INFERRED FROM THAT STATEMENT THAT THE
COURT WOULD HAVE SUSTAINED JURISDICTION HAD IT FOUND THE DEMAND TO BE
UNLAWFUL, THEN MY DISAGREEMENT WITH THE COURT WOULD BE REDUCED TO AND
TURN ON THAT SIMPLE ISSUE.  AND AS TO IT, I RESPECTFULLY SUBMIT THAT
THE ADMITTED FACTS SHOW THAT THE DEMAND WAS IN DEROGATION OF THE
PROVISIONS AND POLICIES OF THE INTERSTATE COMMERCE ACT.  BELIEVING THAT
THE DEMAND WAS NOT A LAWFULLY BARGAINABLE ONE UNDER THE RAILWAY LABOR
ACT, AND THAT THE DISTRICT COURT HAD JURISDICTION TO ENJOIN THE
THREATENED STRIKE, CALLED TO FORCE ACCEPTANCE OF THAT ILLEGAL DEMAND, I
WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  THE FACT THAT MANY OF THESE AGENTS WERE NOT ON DUTY WHEN THE
FREIGHT TRAINS PASSED THEIR STATIONS WAS DUE TO A UNION REQUIREMENT
THAT THEIR DAY'S WORK MUST BEGIN AT 8:30 A.M. 

FN2  ACT OF SEPT. 18, 1940, C. 722, TITLE I, SEC. 1, 54 STAT. 899 -
PRECEDING PART I OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 1 -
TITLED "NATIONAL TRANSPORTATION POLICY."  IN PERTINENT PART, IT
PROVIDES:  "IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION
POLICY OF THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF
ALL MODES OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT  ...
TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND FOSTER
SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL
CARRIERS  ...  ." 

FN3  THE SOUTH DAKOTA COMMISSION FURTHER FOUND THAT THE EXPENSES OF
OPERATING THE 69 STATIONS INVOLVED EXCEEDED RELATED REVENUES BY
$170,399 IN 1956, AND THAT IF THE CENTRAL AGENCY PLAN HAD BEEN IN
EFFECT DURING THAT PERIOD THERE WOULD HAVE BEEN A SURPLUS OF $58,884. 
AND WISCONSIN COMMISSIONS.   THE UNION APPEARED IN EACH OF THOSE
PROCEEDINGS AND PRESENTED 

HEARINGS WERE AFTERWARDS CONDUCTED UPON THE SIMILAR PETITIONS BEFORE
THE IOWA, MINNESOTA EVIDENCE, BRIEFS AND ARGUMENTS IN OPPOSITION TO THE
PETITIONS, BUT EACH WAS GRANTED. 

THE IOWA COMMISSION FOUND THAT THE AGENTS AT THE STATIONS THERE
INVOLVED WORKED AN AVERAGE OF 1 HOUR AND 14 MINUTES PER DAY, A DECREASE
OF 28% SINCE 1951, AND THAT THE ESTIMATED AVERAGE WORKLOAD UNDER THE
CENTRAL AGENCY PLAN WOULD BE 3 HOURS AND 15 MINUTES PER DAY.  IT SAID,
INTER ALIA, "SAVINGS MUST BE MADE BY REDUCING OR ELIMINATING SERVICE NO
LONGER NEEDED.  THE CASE BEFORE US IS A PROPOSAL TO REDUCE AGENCY
SERVICE TO THE LEVEL OF ACTUAL NEED."  AND IT FOUND THAT SUCH WAS
NECESSARY "TO INSURE EFFICIENCY, ECONOMY AND ADEQUATE RAIL
TRANSPORTATION." 

THE UNION APPEALED FROM THE ORDERS OF THE RESPECTIVE COMMISSIONS TO
THE COURTS OF THE RESPECTIVE STATES, BUT THE COMMISSION ACTION WAS
AFFIRMED IN EACH INSTANCE. 

FN4  48 STAT. 1197, 45 U.S.C. SEC. 156. 

FN5  NORTH WESTERN'S REPLY STATED, INTER ALIA, THAT, IN ITS VIEW, THE
UNION'S REQUEST WAS "NOT A PROPER SUBJECT FOR A SECTION 6 NOTICE IN
THAT IT DOES NOT IN FACT CONCERN RULES, RATES OF PAY OR WORKING
CONDITIONS, BUT INSTEAD CONSTITUTES AN ATTEMPT TO FREEZE ASSIGNMENTS
REGARDLESS OF THE CONTROLLING AGREEMENT AND REGARDLESS OF THE NECESSITY
OR JUSTIFICATION FOR SUCH ASSIGNMENTS." 

FN6  IN THE MEDIATION MEETINGS AND OTHER MEETINGS BETWEEN THE
PARTIES, NORTH WESTERN SUGGESTED SEVERAL MEANS OF CUSHIONING THE
EFFECTS OF DISCONTINUING THESE "ONE-MAN" AGENCY JOBS, INCLUDING (1) THE
TRANSFER OF THE AGENTS AFFECTED TO PRODUCTIVE JOBS; (2) THE LIMITING OF
JOB ABOLISHMENTS TO AN AGREED NUMBER PER YEAR; AND (3) THE PAYMENT OF
SUPPLEMENTAL UNEMPLOYMENT BENEFITS TO THE EMPLOYEES AFFECTED.  THE
UNION REFUSED TO DISCUSS THESE PROPOSALS. 

AT A MEETING BETWEEN NORTH WESTERN'S CHIEF EXECUTIVE OFFICER AND THE
UNION'S PRESIDENT AND ITS GENERAL COUNSEL AT MADISON, WISCONSIN, DURING
THE PERIOD OF THE MEDIATION EFFORTS, NORTH WESTERN'S OFFICIAL ASKED IF
THERE WAY ANY "POSSIBILITY" OF "WORKING OUT THESE STATION CLOSING
MATTERS AND THE DISCONTINUANCE OF THE POSITIONS OF THESE STATION
AGENTS" EITHER ON A SOUTH DAKOTA OR A SYSTEM BASIS.   THE UNION'S
PRESIDENT ASKED HIS GENERAL COUNSEL FOR HIS VIEWS ON THE MATTER.  THE
LATTER REPLIED "I THINK WE ARE TOO FAR APART," AND NORTH WESTERN'S
OFFICIAL THEN SAID "I WANT YOU TO KNOW THAT MY DOOR IS ALWAYS OPEN." 

THE UNION'S PRESIDENT TESTIFIED AT THE SUBSEQUENT DISTRICT COURT
TRIAL THAT "  ...  THE ONLY ALTERNATIVE WHICH UP THE THE PRESENT I HAVE
OFFERED THE NORTH WESTERN RAILROAD WAS TO COMPLY WITH THIS RULE OR
STRIKE." 

FN7  45 U.S.C. SEC. 155, FIRST. 

FN8  45 U.S.C. SEC. 158. 

FN9  THE UNION'S LETTER OF JULY 10, 1958, AFTER REFERRING TO THE
EFFORTS OF NORTH WESTERN TO ABOLISH MANY OF THE "ONE-MAN" AGENCY JOBS
AND TO THE UNION'S EFFORTS IN OPPOSITION, STATED AMONG OTHER THINGS: 

"HOWEVER, IT BECAME EVIDENT AT AN EARLY DATE THAT TO MEET THIS
ONSLAUGHT EFFECTIVELY WOULD REQUIRE STRENGTHENING OF OUR AGREEMENTS
...  .  WE MUST PREVENT A CONTINUANCE OF SUCH A PROGRAM. 

"WHILE WE HOPE THE COMMISSIONS IN OTHER STATES WILL BE MORE
REASONABLE THAN THE SOUTH DAKOTA COMMISSION, WE HAVE NO ASSURANCE THAT
WE WILL NOT SOON SEE A REPETITION IN OTHER STATES OF WHAT HAS HAPPENED
IN SOUTH DAKOTA  ...  ." 

FN10  THE STRIKE CALL, AFTER REFERRING TO THE UNION'S EFFORTS TO
PREVENT THE ABOLISHMENT OF JOBS AT "ONE-MAN" STATIONS SAID, INTER ALIA,
THAT:  "THE NEED FOR THE PROPOSED RULE HAS AGAIN BEEN TRAGICALLY
DEMONSTRATED IN THE LAST FEW DAYS.  WHAT HAPPENED IN SOUTH DAKOTA WAS
REPEATED IN IOWA, EXCEPT THAT THIS TIME 70 POSITIONS WERE ABOLISHED AND
27 ASSIGNMENTS ENLARGED." 

FN11 BY ORDER OF SEPT. 16, 1958, THE DISTRICT COURT FURTHER
RESTRAINED THE IMPENDING STRIKE PENDING DETERMINATION OF NORTH
WESTERN'S APPEAL. 

FN12  49 U.S.C. SECS. 1-27. 

FN13  45 U.S.C. SECS. 151-164. 

FN14  29 U.S.C. SECS. 101-115. 

FN15  SEE NOTE 2 FOR THE PERTINENT PROVISIONS OF THE NATIONAL
TRANSPORTATION POLICY. 

FN16  49 U.S.C. SECS. 1(18), 1(19), 1(20). 

FN17  ACT OF AUG. 12, 1958, PUB. L. 85-625, SEC. 5, 72 STAT. 571, 49
U.S.C. SEC. 13A. 

FN18  THE TRANSPORTATION ACT OF 1958, 72 STAT. 568.  SEE HEARINGS
BEFORE SUBCOMMITTEE ON SURFACE TRANSPORTATION OF SENATE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON PROBLEMS OF THE RAILROADS, 85TH
CONG., 2D SESS., PP. 1816, 1817, 1821, 2027, 2028; 104 CONG. REC., PP.
10850, 12522, 12537, 15528; S. REP. NO. 1647 ON S. 3778, 85TH CONG., 2D
SESS.; H.R.  REP. NO. 1922 ON H.R. 12832, 85TH CONG., 2D SESS.; H.R.
CONF. REP. NO. 2274, 85TH CONG., 2D SESS. 

FN19  "THE RAILROAD INDUSTRY HAS NOT, IN THE SUBCOMMITTEE'S OPINION,
BEEN SUFFICIENTLY INTERESTED IN SELF-HELP IN SUCH MATTERS AS
CONSOLIDATIONS AND MERGERS OF RAILROADS; JOINT USE OF FACILITIES IN
ORDER TO ELIMINATE WASTE, SUCH AS MULTIPLE TERMINALS AND YARDS THAT
REQUIRE EXPENSIVE INTERCHANGE OPERATIONS; REDUCTION OF DUPLICATIONS IN
FREIGHT AND PASSENGER SERVICES BY POOLING AND JOINT OPERATIONS;
ABANDONMENT OR CONSOLIDATION OF NONPAYING BRANCH AND SECONDARY LINES;
ABOLISHING OF UNNECESSARILY CIRCUITOUS ROUTES FOR FREIGHT MOVEMENTS;
IMPROVED HANDLING OF LESS-THAN-CARLOAD TRAFFIC; COORDINATION OF
TRANSPORTATION SERVICES AND FACILITIES BY ESTABLISHMENT OF THROUGH
ROUTES AND JOINT RATES WITH OTHER FORMS OF TRANSPORTATION; AND
MODERNIZATION OF THE FREIGHT-RATE STRUCTURE, INCLUDING REVISION OF
BELOW-COST FREIGHT RATES TO LEVELS THAT COVER COST AND YIELD SOME
MARGIN OF PROFIT AS WELL AS ADJUSTMENT OF RATES EXCESSIVELY ABOVE COST
TO ATTRACT TRAFFIC AND YIELD MORE REVENUE."  S. REP. NO. 1647, 85TH
CONG., 2D SESS., P. 11. 

FN20  49 U.S.C. SEC. 5(2)(F). 

FN21  84 CONG. REC. (1939), PT. 9, P. 9882. 

FN22  INTERSTATE COMMERCE COMMISSION REPORT ON S. 2009, OMNIBUS
TRANSPORTATION LEGISLATION, P. 67 (76TH CONG., 3D SESS., HOUSE
COMMITTEE PRINT), TRANSMITTED JAN. 29, 1940. 

FN23  SEE NOTE 6. 

FN24  IBID. 

FN25  IBID. 

FN26  45 U.S.C. SEC. 152, FIRST. 

FN27  BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768. 

FN28  VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION NO. 40, 300 U.S.
515.  "COURTS OF EQUITY MAY, AND FREQUENTLY DO, GO MUCH FARTHER BOTH TO
GIVE AND WITHHOLD RELIEF IN FURTHERANCE OF THE PUBLIC INTEREST THAN
THEY ARE ACCUSTOMED TO GO WHEN ONLY PRIVATE INTERESTS ARE INVOLVED." 
300 U.S., AT 552. 

FN29  29 U.S.C. SEC. 107(A). 

MEMORANDUM OF MR. JUSTICE STEWART. 

I HAVE STRONG DOUBT AS TO THE EXISTENCE OF FEDERAL JURISDICTION IN
THIS CASE, FOR REASONS WELL EXPRESSED BY THEN CIRCUIT JUDGE MINTON,
DISSENTING IN TOLEDO, P.&W.R. CO. V. BROTHERHOOD OF RAILROAD TRAINMEN,
132 F.2D 265, 272-274.  SEE BROTHERHOOD OF RAILROAD TRAINMEN V. NEW
YORK CENTRAL R. CO., 246 F.2D 114, AT 122 (DISSENTING OPINION).  IF,
HOWEVER, THE FEDERAL DISTRICT COURT HAD JURISDICTION, AS ALL MY
BRETHREN SEEM TO BELIEVE OR AT LEAST ASSUME, MR. JUSTICE WHITTAKER'S
DISSENTING OPINION CONVINCINGLY DEMONSTRATES FOR ME THAT THE DISTRICT
COURT HAD POWER TO ISSUE AN INJUNCTION. 
..END :


















MARINE COOKS & STEWARDS, AFL V. PANAMA STEAMSHIP CO. 362 U.S. 365 


NO. 403.  ARGUED MARCH 2-3, 1960 - DECIDED APRIL 18, 1960 - 265 F.2D
780, REVERSED. 


THE NORRIS-LAGUARDIA ACT DEPRIVES A FEDERAL DISTRICT COURT OF
JURISDICTION TO ENJOIN A UNION OF AMERICAN SEAMEN FROM PEACEFULLY
PICKETING A FOREIGN SHIP OPERATED ENTIRELY BY A FOREIGN CREW UNDER
FOREIGN ARTICLES WHILE TEMPORARILY IN AN AMERICAN PORT, IN PROTEST
AGAINST LOSS OF LIVELIHOOD BY AMERICAN SEAMEN "TO FOREIGN FLAGSHIPS
WITH SUBSTANDARD WAGES OR SUBSTANDARD CONDITIONS," AND IN ORDER TO
PREVENT THE FOREIGN SHIP FROM UNLOADING ITS FOREIGN CARGO IN THE
AMERICAN PORT.  BENZ V. COMPANIA NAVIERA HIDALGO, 353 U.S. 138,
DISTINGUISHED.  PP. 365-372. 

(A)  SUCH A CONTROVERSY IS A "LABOR DISPUTE" WITHIN THE MEANING OF
THE NORRIS-LAGUARDIA ACT.  P. 370. 

(B)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT THE
PICKETING INTERFERED WITH FOREIGN COMMERCE OR THE INTERNAL ECONOMY OF A
VESSEL REGISTERED UNDER THE FLAG OF A FRIENDLY FOREIGN POWER AND
PREVENTED SUCH VESSEL FROM UNLOADING ITS CARGO AT AN AMERICAN PORT. 
PP. 371-372. 

MARINE COOKS & STEWARDS, AFL, ET AL. V. PANAMA STEAMSHIP CO., LTD., ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS, WHO ARE THE OWNER, TIME CHARTERER, AND MASTER OF THE
LIBERIAN REGISTERED VESSEL, S.S. NIKOLOS, BROUGHT THIS ACTION IN A
UNITED STATES DISTRICT COURT AGAINST THE PETITIONER UNION AND ITS
MEMBERS PRAYING FOR TEMPORARY AND PERMANENT INJUNCTIONS TO RESTRAIN,
AND FOR DAMAGES ALLEGEDLY SUFFERED FROM, THE UNION'S PEACEFUL PICKETING
OF THE SHIP IN AMERICAN WATERS AND ITS THREATS TO PICKET SHORE
CONSIGNEES OF THE SHIP'S CARGO SHOULD THEY ACCEPT DELIVERY.  THE
UNION'S SOLE CONTENTION WAS THAT THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO RESTRAIN THE PICKETING BECAUSE OF THE NORRIS-LAGUARDIA
ACT WHICH STATES IN SEC. 1: 

"THAT NO COURT OF THE UNITED STATES, AS HEREIN DEFINED, SHALL HAVE
JURISDICTION TO ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT
INJUNCTION IN A CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE,
EXCEPT IN A STRICT CONFORMITY WITH THE PROVISIONS OF THIS ACT; NOR
SHALL ANY SUCH RESTRAINING ORDER OR TEMPORARY OR PERMANENT INJUNCTION
BE ISSUED CONTRARY TO THE PUBLIC POLICY DECLARED IN THIS ACT."  (FN1) 

DISTRICT COURTS TO ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR
PERMANENT INJUNCTION TO PROHIBIT UNIONS FROM: 

"(E)  GIVING PUBLICITY TO THE EXISTENCE OF, OR THE FACTS INVOLVED IN,
ANY LABOR DISPUTE, WHETHER BY ADVERTISING, SPEAKING, PATROLLING, OR BY
ANY OTHER METHOD NOT INVOLVING FRAUD OR VIOLENCE  ... ."  (FN2) 

NOTWITHSTANDING THESE PROVISIONS OF THE NORRIS-LAGUARDIA ACT AND
DESPITE AN EXPRESS FINDING THAT THE UNION AND ITS MEMBERS HAD NOT BEEN
GUILTY OF FRAUD, AND HAD NOT THREATENED OR COMMITTED ANY ACTS OF
PHYSICAL VIOLENCE TO ANY PERSON OR ANY PROPERTY, THE DISTRICT COURT
ISSUED A TEMPORARY INJUNCTION TO RESTRAIN THE PICKETING.  (FN3)  THE
INJUNCTION PROHIBITED PICKETING BY THE PETITIONER UNION OF "THE SS
'NIKOLOS' OR ANY OTHER VESSEL REGISTERED UNDER A FOREIGN FLAG AND
MANNED BY AN ALIEN CREW AND OWNED, OPERATED OR CHARTERED BY"
RESPONDENTS, IN THE PUGET SOUND AREA.  THIS ACTION OF THE COURT WAS
BASED ON ITS CONCLUSIONS THAT (A) THE CASE DID NOT INVOLVE OR GROW OUT
OF ANY LABOR DISPUTE WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT AND
(B) EVEN IF THERE WERE A LABOR DISPUTE WITHIN THE MEANING OF THAT ACT,
THE COURT HAD JURISDICTION TO RESTRAIN THE PICKETING BECAUSE IT
INTERFERED IN THE INTERNAL ECONOMY OF A VESSEL REGISTERED UNDER THE
FLAG OF A FRIENDLY FOREIGN POWER AND AMOUNTED TO AN "UNLAWFUL
INTERFERENCE WITH FOREIGN COMMERCE."  (FN4)  THE COURT'S CONCLUSION
RESTED ON THE FOLLOWING FACTS, ABOUT WHICH THERE WAS NO SUBSTANTIAL
DISPUTE. 

THE PETITIONER AND OTHER NATIONAL LABOR ORGANIZATIONS ACT AS
BARGAINING REPRESENTATIVES FOR MOST OF THE UNLICENSED PERSONNEL OF
VESSELS THAT FLY THE AMERICAN FLAG ON THE PACIFIC COAST.  PETITIONER
ALONE, PURSUANT TO NATIONAL LABOR RELATIONS BOARD CERTIFICATION,
REPRESENTS EMPLOYEES OF THE STEWARDS' DEPARTMENT ON A LARGE MAJORITY OF
THOSE VESSELS.  THE S.S. NIKOLOS IS OWNED BY A LIBERIAN CORPORATION,
WAS TIME-CHARTERED FOR THIS TRIP BY ANOTHER LIBERIAN CORPORATION, AND
ALL MEMBERS IF ITS CREW WERE ALIENS WORKING UNDER EMPLOYMENT CONTRACTS
MADE OUTSIDE THIS COUNTRY.  THERE WAS NO LABOR DISPUTE BETWEEN THE
SHIP'S EMPLOYEES AND THE SHIP.  THE NIKOLOS PICKED UP A CARGO OF SALT
IN MEXICO AND CARRIED IT TO THE HARBOR OF THE PORT OF TACOMA,
WASHINGTON, FOR DELIVERY TO AN AMERICAN CONSIGNEE THERE.  AFTER THE
SHIP ENTERED THE TACOMA HARBOR IT WAS MET BY THE UNION'S BOAT WHICH
BEGAN TO CIRCLE AROUND THE NIKOLOS DISPLAYING SIGNS MARKED "PICKET
BOAT."  LATER AN ADDITIONAL SIGN WAS PUT ON THE BOAT READING:  "AFL-CIO
SEAMEN PROTEST LOSS OF THEIR LIVELIHOOD TO FOREIGN FLAGSHIPS WITH
SUBSTANDARD WAGES OR SUBSTANDARD CONDITIONS."  THE UNION THREATENED TO
EXTEND ITS PICKETING TO THE CONSIGNEE OF THE SALT SHOULD AN ATTEMPT BE
MADE TO BERTH AND UNLOAD THAT CARGO.  ALTHOUGH THE PICKETING WAS
PEACEFUL AND THERE WAS NO FRAUD, THE RESULT WAS THAT THE SHIP COULD NOT
DELIVER ITS CARGO. 

ON APPEAL FROM THE TEMPORARY INJUNCTION TO THE COURT OF APPEALS THE
PETITIONER ARGUED THAT THE INJUNCTION GRANTED BY THE DISTRICT COURT WAS
BEYOND THE JURISDICTION OF THAT COURT BECAUSE OF THE PROVISIONS OF SEC.
4 OF THE NORRIS-LAGUARDIA ACT PREVIOUSLY SET OUT, (FN5) BUT THE COURT
OF APPEALS REJECTED THAT CONTENTION AND UPHELD THE INJUNCTION.  (FN6)
THAT COURT'S VIEW WAS BASED ALMOST ENTIRELY UPON OUR HOLDING IN BENZ V.
COMPANIA NAVIERA HIDALGO, 353 U.S. 138.  CERTIORARI WAS GRANTED TO
CONSIDER THE QUESTION OF THE APPLICABILITY OF THE NORRIS-LAGUARDIA ACT
HERE, 361 U.S. 893, AND IN ORDER OF RAILROAD TELEGRAPHERS V. CHICAGO &
NORTH WESTERN R. CO., 361 U.S. 809, DECIDED THIS DAY, ANTE, P. 330.  WE
THINK NEITHER THE HOLDING NOR THE OPINION IN THE BENZ CASE SUPPORTS THE
NARROW CONSTRUCTION THE COURT OF APPEALS GAVE THE NORRIS-LAGUARDIA ACT
IN THIS CASE. 

THE BENZ CASE WAS DECIDED BY A UNITED STATES DISTRICT COURT SITTING
AS A STATE COURT TO ENFORCE STATE LAW UNDER ITS DIVERSITY
JURISDICTION.  THE QUESTION IN THE BENZ CASE WAS WHETHER THE LABOR
MANAGEMENT RELATIONS ACT OF 1947 GOVERNED THE INTERNAL LABOR RELATIONS
OF A FOREIGN SHIP AND ITS FOREIGN WORKERS UNDER CONTRACTS MADE ABROAD
WHILE THAT SHIP HAPPENED TEMPORARILY TO BE IN AMERICAN WATERS.  THE
BENZ CASE DECIDED THAT THE LABOR MANAGEMENT RELATIONS ACT HAD NO SUCH
SCOPE OR COVERAGE AND THAT IT ACCORDINGLY DID NOT PRE-EMPT THE LABOR
RELATIONS FIELD SO AS TO BAR AN ACTION FOR DAMAGES FOR UNLAWFUL
PICKETING UNDER OREGON LAW.  NOTHING WAS SAID OR INTIMATED IN BENZ THAT
WOULD JUSTIFY AN INFERENCE THAT BECAUSE A UNITED STATES DISTRICT COURT
HAS POWER TO AWARD DAMAGES IN STATE CASES GROWING OUT OF LABOR DISPUTES
IT ALSO HAS POWER TO ISSUE INJUNCTIONS IN LIKE SITUATIONS.  THAT
QUESTION - OF UNITED STATES COURTS' JURISDICTION TO ISSUE INJUNCTIONS
IN CASES LIKE THIS - IS TO BE CONTROLLED BY THE NORRIS-LAGUARDIA ACT. 

THAT ACT'S LANGUAGE IS BROAD.  THE LANGUAGE IS BROAD BECAUSE CONGRESS
WAS INTENT UPON TAKING THE FEDERAL COURTS OUT OF THE LABOR INJUNCTION
BUSINESS EXCEPT IN THE VERY LIMITED CIRCUMSTANCES LEFT OPEN FOR FEDERAL
JURISDICTION UNDER THE NORRIS-LAGUARDIA ACT.  THE HISTORY AND
BACKGROUND THAT LED CONGRESS TO TAKE THIS VIEW HAVE BEEN ADVERTED TO IN
A NUMBER OF PRIOR OPINIONS OF THIS COURT IN WHICH WE REFUSE TO GIVE THE
ACT NARROW INTERPRETATIONS THAT WOULD HAVE RESTORED MANY LABOR DISPUTE
CONTROVERSIES TO THE COURTS.  (FN7) 

IT IS DIFFICULT TO SEE HOW THIS CONTROVERSY COULD BE THOUGHT TO
SPRING FROM ANYTHING EXCEPT ONE "CONCERNING TERMS OR CONDITIONS OF
EMPLOYMENT," AND HENCE A LABOR DISPUTE WITHIN THE MEANING OF THE NORRIS
LAGUARDIA ACT.  (FN8)  THE PROTEST STATED BY THE PICKETS CONCERNED
"SUBSTANDARD WAGES OR SUBSTANDARD CONDITIONS."  THE CONTROVERSY DOES
INVOLVE, AS THE ACT REQUIRES, "PERSONS WHO ARE ENGAGED IN THE SAME
INDUSTRY, TRADE, CRAFT, OR OCCUPATION."  (FN9)  AND IT IS IMMATERIAL
UNDER THE ACT THAT THE UNIONS AND THE SHIP AND THE CONSIGNEES DID NOT
"STAND IN THE PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE."  (FN10)
THIS CASE CLEARLY DOES GROW OUT OF A LABOR DISPUTE WITHIN THE MEANING
OF THE NORRIS-LAGUARDIA ACT. 

THE DISTRICT COURT HELD, HOWEVER, THAT EVEN IF THIS CASE INVOLVED A
LABOR DISPUTE UNDER THE NORRIS-LAGUARDIA ACT THE COURT HAD JURISDICTION
TO ISSUE THE INJUNCTION BECAUSE THE PICKETING WAS AN "UNLAWFUL
INTERFERENCE WITH FOREIGN COMMERCE" AND INTERFERED "IN THE INTERNAL
ECONOMY OF A VESSEL REGISTERED UNDER THE FLAG OF A FRIENDLY FOREIGN
POWER" AND PREVENTED "SUCH A VESSEL FROM LAWFULLY LOADING OR
DISCHARGING CARGO AT PORTS OF THE UNITED STATES."  (FN11)  THE COURT OF
APPEALS ADOPTED THIS POSITION, BUT CITED NO AUTHORITY FOR ITS STATEMENT
THAT THE PICKETING WAS "UNLAWFUL," NOR HAVE THE RESPONDENTS IN THIS
COURT POINTED TO ANY STATUTE OR PERSUASIVE AUTHORITY PROVING THAT
PETITIONER'S CONDUCT WAS UNLAWFUL.  COMPARE SEC. 20 OF THE CLAYTON ACT,
29 U.S.C. SEC. 52.  AND EVEN IF UNLAWFUL, IT WOULD NOT FOLLOW THAT THE
FEDERAL COURT WOULD HAVE JURISDICTION TO ENJOIN THE PARTICULAR CONDUCT
WHICH SEC. 4 OF THE NORRIS-LAGUARDIA ACT DECLARED SHALL NOT BE
ENJOINED.  NOR DOES THE LANGUAGE OF THE NORRIS-LAGUARDIA ACT LEAVE ROOM
TO HOLD THAT JURISDICTION IT DENIES A DISTRICT COURT TO ISSUE A
PARTICULAR TYPE OF RESTRAINING ORDER CAN BE RESTORED TO IT BY A FINDING
THAT THE NONENJOINABLE CONDUCT MAY "INTERFERE IN THE INTERNAL ECONOMY
OF A VESSEL REGISTERED UNDER THE FLAG OF A FRIENDLY FOREIGN POWER." 
(FN12) 

CONGRESS PASSED THE NORRIS-LAGUARDIA ACT TO CURTAIL AND REGULATE THE
JURISDICTION OF COURTS, NOT, AS IT PASSED THE TAFT-HARTLEY ACT, TO
REGULATE THE CONDUCT OF PEOPLE ENGAGED IN LABOR DISPUTES.  AS WE
POINTED OUT IN THE BENZ CASE, A SHIP THAT VOLUNTARILY ENTERS THE
TERRITORIAL LIMITS OF THIS COUNTRY SUBJECTS ITSELF TO OUR LAWS AND
JURISDICTION AS THEY EXIST.  (FN13)  THE FACT THAT A FOREIGN SHIP
ENTERS A UNITED STATES COURT AS A PLAINTIFF CANNOT ENLARGE THE
JURISDICTION OF THAT COURT.  THERE IS NOT PRESENTED TO US HERE, AND WE
DO NOT DECIDE, WHETHER THE PICKETING OF PETITIONER WAS TORTIOUS UNDER
STATE OR FEDERAL LAW.  ALL WE DECIDE IS THAT THE NORRIS-LAGUARDIA ACT
DEPRIVES THE UNITED STATES COURT OF JURISDICTION TO ISSUE THE
INJUNCTION IT DID UNDER THE CIRCUMSTANCES SHOWN. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE PETITION
FOR INJUNCTION.  IT IS SO ORDERED. 

FN1  47 STAT. 70, 29 U.S.C. SEC. 101. 

FN2  47 STAT. 70, 71; 29 U.S.C. SEC. 104.  EVEN IN THE LIMITED
JURISDICTION THE NORRIS-LAGUARDIA ACT LEAVES TO FEDERAL COURTS IN LABOR
CONTROVERSIES, OTHER SECTIONS OF THE ACT NARROWLY CIRCUMSCRIBE THE
CASES WHERE, THE PARTIES AGAINST WHOM, AND THE CIRCUMSTANCES IN WHICH,
INJUNCTIONS MAY ISSUE.  IF, HOWEVER, ISSUANCE OF A SPECIFIC INJUNCTION
IS PROHIBITED BY ONE SECTION, SUCH AS SEC. 4, COMPLIANCE WITH THE
REQUIREMENTS OF ANOTHER SECTION, SUCH AS SEC. 7, DOES NOT JUSTIFY THE
INJUNCTION. 

FN3  PANAMA STEAMSHIP CO. V. MARINE COOKS & STEWARDS, AFL, 1959 AM.
MAR. CAS. 340. 

FN4  1959 AM. MAR. CAS. 340, 350. 

FN5  IN THE DISTRICT COURT RESPONDENTS RESTED THEIR CLAIM FOR
JURISDICTION ON 28 U.S.C.  SEC. 1331 WHICH PROVIDES: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL CIVIL
ACTIONS WHEREIN THE MATTER IN CONTROVERSY  ...  ARISES UNDER THE
CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES." 

BETWEEN THE TIME THE DISTRICT COURT'S INJUNCTION WAS APPEALED AND THE
TIME THE COURT OF APPEALS DECIDED THE APPEAL, THIS COURT DECIDED ROMERO
V. INTERNATIONAL TERM.  OPER.  CO., 358 U.S. 354.  THAT CASE DECIDED
THAT SEC. 1331 DOES "NOT EXTEND, AND COULD NOT REASONABLY BY
INTERPRETED TO EXTEND, TO CASES OF ADMIRALTY AND MARITIME
JURISDICTION."  ID., AT 378.  IN THE COURT OF APPEALS THE PETITIONER
HERE BROADENED ITS CHALLENGE TO THE JURISDICTION OF THE DISTRICT COURT
IN THIS CASE BY INVOKING THE INTERPRETATION OF SEC. 1331 DECLARED IN
THE ROMERO CASE.  THE VIEW WE TAKE OF THE CHALLENGE TO THE COURT'S
JURISDICTION UNDER THE NORRIS-LAGUARDIA ACT MAKES IT UNNECESSARY FOR US
TO DETERMINE THE ENTIRELY SEPARATE QUESTION RAISED UNDER THE ROMERO
CASE. 

FN6  MARINE COOKS & STEWARDS, AFL, V. PANAMA STEAMSHIP CO., 265 F.2D
780 (C.A. 9TH CIR. 1959). 

FN7  SEE, E.G., UNITED STATES V. HUTCHESON, 312 U.S. 219; MILK WAGON
DRIVERS' UNION V. LAKE VALLEY FARM PRODUCTS, 311 U.S. 91; NEW NEGRO
ALLIANCE V. SANITARY GROCERY CO., 303 U.S. 552; LAUF V. SHINNER & CO.,
303 U.S. 323.  AND SEE ALLEN BRADLEY CO. V. LOCAL UNION NO. 3,
I.B.E.W., 325 U.S. 797, 805. 

"THE UNDERLYING AIM OF THE NORRIS-LAGUARDIA ACT WAS TO RESTORE THE
BROAD PURPOSE WHICH CONGRESS THOUGHT IT HAD FORMULATED IN THE CLAYTON
ACT BUT WHICH WAS FRUSTRATED, SO CONGRESS BELIEVED, BY UNDULY
RESTRICTIVE JUDICIAL CONSTRUCTION."  UNITED STATES.  V. HUTCHESON, 312
U.S. 219, 235-236. 

THIS CONGRESSIONAL PURPOSE, AS IS WELL KNOWN, WAS PROMPTED BY A
DESIRE TO PROTECT THE RIGHTS OF LABORING MEN TO ORGANIZE AND BARGAIN
COLLECTIVELY AND TO WITHDRAW FEDERAL COURTS FROM A TYPE OF CONTROVERSY
FOR WHICH MANY BELIEVED THEY WERE ILL-SUITED AND FROM PARTICIPATION IN
WHICH, IT WAS FEARED, JUDICIAL PRESTIGE MIGHT SUFFER.  SEE FRANKFURTER
AND GREENE, THE LABOR INJUNCTION (1930), AT 200; GREGORY, LABOR AND THE
LAW (1958), AT 184-199. 

FN8  SECTION 13 OF THE NORRIS-LAGUARDIA ACT, 29 U.S.C. SEC. 113(C),
DEFINES A LABOR DISPUTE, FOR PURPOSES OF THAT ACT, AS FOLLOWS:  "THE
TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING TERMS OR
CONDITIONS OF EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR
REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING, MAINTAINING,
CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF EMPLOYMENT,
REGARDLESS OF WHETHER OR NOT THE DISPUTANTS STAND IN THE PROXIMATE
RELATION OF EMPLOYER AND EMPLOYEE." 

FN9  47 STAT. 70, 73; 29 U.S.C. SEC. 113(A).    FN10  SEE NOTE 8,
SUPRA. 

FN11  1959 AM. MAR. CAS. 340, 350. 

FN12  UNLIKE THE SITUATION IN THE BENZ CASE, IN WHICH AMERICAN UNIONS
TO WHICH THE FOREIGN SEAMEN DID NOT BELONG PICKETED THE FOREIGN SHIP IN
SYMPATHY WITH THE STRIKE OF THE FOREIGN SEAMEN ABOARD, THE UNION
MEMBERS HERE WERE NOT INTERESTED IN THE INTERNAL ECONOMY OF THE SHIP,
BUT RATHER WERE INTERESTED IN PRESERVING JOB OPPORTUNITIES FOR
THEMSELVES IN THIS COUNTRY.  THEY WERE PICKETING ON THEIR OWN BEHALF,
NOT ON BEHALF OF THE FOREIGN EMPLOYEES AS IN BENZ.  THOUGH THE EMPLOYER
HERE WAS FOREIGN, THE DISPUTE WAS DOMESTIC.  FOR A THOUGHTFUL
DISCUSSION OF THE IMPACT OF FOREIGN EMPLOYMENT UPON AMERICAN LABOR
STANDARDS, SEE AFRAN TRANSPORT CO. V. NATIONAL MARITIME UNION, 169 F.
SUPP. 416, 1959 AM. MAR. CAS.  326 (HOLDING THAT THE NORRIS-LAGUARDIA
ACT WITHDREW FROM FEDERAL DISTRICT COURTS JURISDICTION TO ISSUE LABOR
INJUNCTIONS IN A LABOR DISPUTE STRIKINGLY LIKE THE ONE HERE INVOLVED). 
BUT SEE FIANZA CIA.  NAV.  S.A. V. BENZ, 1959 AM. MAR. CAS. 1758, 37
CCH LAB.  CAS.  PAR. 65,495. 

FN13 BENZ V. COMPANIA NAVIERA HIDALGO, 353 U.S. 138, 142.  SEE
GENERALLY, COMMENT, THE EFFECT OF UNITED STATES LABOR LEGISLATION ON
THE FLAG-OF-CONVENIENCE FLEET:  REGULATION OF SHIPBOARD LABOR RELATIONS
AND REMEDIES AGAINST SHORESIDE PICKETING, 69 YALE L.J. 498, 516-525,
ESP.  523-525. 

HERE RESPONDENTS DO NOT EVEN CLAIM THAT FOREIGN SHIPS SEEKING
INJUNCTIONS CAN OBTAIN THEM WITHOUT COMPLYING WITH THE REQUIREMENT OF
SEC. 7 OF THE NORRIS-LAGUARDIA ACT THAT THE COURT HOLD A HEARING AND
MAKE SPECIFIED FINDINGS. 
..END :






MILLER MUSIC CORP. V. CHARLES N. DANIELS, INC. 362 U.S. 373 


NO. 214.  ARGUED FEBRUARY 24-25, 1960 - DECIDED APRIL 18, 1960 - 265
F.2D 925, AFFIRMED. 


UNDER THE COPYRIGHT ACT, 17 U.S.C. SEC. 24, WHEN THE AUTHOR OF A
COPYRIGHTED MUSICAL COMPOSITION DIES TESTATE, LEAVING NO WIDOW, WIDOWER
OR CHILD, BEFORE TIME TO APPLY FOR RENEWAL OF THE COPYRIGHT, HIS
EXECUTOR IS ENTITLED TO THE RENEWAL RIGHTS - EVEN THOUGH THE AUTHOR HAD
PREVIOUSLY SOLD AND ASSIGNED HIS RENEWAL RIGHTS TO A MUSIC PUBLISHER. 
PP. 373-378. 

MILLER MUSIC CORP. V. CHARLES N. DANIELS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A MUSIC PUBLISHER, SUED RESPONDENT, ANOTHER MUSIC
PUBLISHER, FOR INFRINGEMENT OF PETITIONER'S RIGHTS THROUGH ONE BEN
BLACK, AS COAUTHOR, IN THE RENEWAL COPYRIGHT OF THE SONG "MOONLIGHT AND
ROSES."  RESPONDENT'S MOTION FOR SUMMARY JUDGMENT WAS GRANTED, 158 F.
SUPP. 188, AND THE COURT OF APPEALS AFFIRMED BY A DIVIDED VOTE.  265
F.2D 925.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED.  361 U.S. 809. 

THE FACTS ARE STIPULATED.  BEN BLACK AND CHARLES DANIELS COMPOSED THE
SONG AND ASSIGNED IT TO VILLA MORET, INC., WHICH SECURED THE ORIGINAL
COPYRIGHT.  PRIOR TO THE EXPIRATION OF THE 28-YEAR TERM, BLACK ASSIGNED
TO PETITIONER HIS RENEWAL RIGHTS IN THIS SONG IN CONSIDERATION OF
CERTAIN ROYALTIES AND THE SUM OF $1,000.  BLACK HAD NO WIFE OR CHILD;
AND HIS NEXT OF KIN WERE THREE BROTHERS.  EACH OF THEM EXECUTED A LIKE
ASSIGNMENT OF HIS RENEWAL EXPECTANCY AND DELIVERED IT TO PETITIONER. 
THESE ASSIGNMENTS WERE RECORDED IN THE COPYRIGHT OFFICE.  BEFORE THE
EXPIRATION OF THE ORIGINAL COPYRIGHT, BLACK DIED, LEAVING NO WIDOW OR
CHILD.  HIS WILL CONTAINED NO SPECIFIC BEQUEST CONCERNING THE RENEWAL
COPYRIGHT.  HIS RESIDUARY ESTATE WAS LEFT TO HIS NEPHEWS AND NIECES. 
ONE OF THE BROTHERS QUALIFIED AS EXECUTOR OF THE WILL AND RENEWED THE
COPYRIGHT FOR A FURTHER TERM OF 28 YEARS.  THE PROBATE COURT DECREED
DISTRIBUTION OF THE RENEWAL COPYRIGHT TO THE RESIDUARY LEGATEES. 
RESPONDENT THEN OBTAINED ASSIGNMENTS FROM THEM. 

THE QUESTION FOR DECISION IS WHETHER BY STATUTE THE RENEWAL RIGHTS
ACCRUE TO THE EXECUTOR IN SPITE OF A PRIOR ASSIGNMENT BY HIS TESTATOR. 
SEC. 24, AFTER STATING THAT "THE PROPRIETOR OF SUCH COPYRIGHT SHALL BE
ENTITLED TO A RENEWAL AND EXTENSION OF THE COPYRIGHT IN SUCH WORK FOR
THE FURTHER TERM OF TWENTY-EIGHT YEARS," GOES ON TO PROVIDE: 

"THAT ...  THE AUTHOR OF SUCH WORK, IF STILL LIVING, OR THE WIDOW,
WIDOWER, OR CHILDREN OF THE AUTHOR, IF THE AUTHOR BE NOT LIVING, OR IF
SUCH AUTHOR, WIDOW, WIDOWER, OR CHILDREN BE NOT LIVING, THEN THE
AUTHOR'S EXECUTORS, OR IN THE ABSENCE OF A WILL, HIS NEXT OF KIN SHALL
BE ENTITLED TO A RENEWAL AND EXTENSION OF THE COPYRIGHT IN SUCH WORK
FOR A FURTHER TERM OF TWENTY-EIGHT YEARS WHEN APPLICATION FOR SUCH
RENEWAL AND EXTENSION SHALL HAVE BEEN MADE TO THE COPYRIGHT OFFICE AND
DULY REGISTERED THEREIN WITHIN ONE YEAR PRIOR TO THE EXPIRATION OF THE
ORIGINAL TERM OF COPYRIGHT." 

AN ASSIGNMENT BY AN AUTHOR OF HIS RENEWAL RIGHTS MADE BEFORE THE
ORIGINAL COPYRIGHT EXPIRES IS VALID AGAINST THE WORLD, IF THE AUTHOR IS
ALIVE AT THE COMMENCEMENT OF THE RENEWAL PERIOD.  FISHER CO. V. WITMARK
& SONS, 318 U.S. 643, SO HOLDS.  IT IS ALSO CLEAR, ALL QUESTIONS OF
ASSIGNMENT APART, THAT THE RENEWAL RIGHTS GO BY STATUTE TO AN EXECUTOR,
ABSENT A WIDOW OR CHILD.  FOX FILM CORP. V. KNOWLES, 261 U.S. 326, SO
HOLDS. 

PETITIONER ARGUES THAT THE EXECUTOR'S RIGHT UNDER THE STATUTE CAN BE
DEFEATED THROUGH A PRIOR ASSIGNMENT BY THE TESTATOR.  IF THE WIDOW,
WIDOWER, AND CHILDREN WERE THE CLAIMANTS, CONCEDEDLY NO PRIOR
ASSIGNMENT COULD BAR THEM.  FOR THEY ARE AMONG THOSE TO WHOM SEC. 24
HAS GRANTED THE RENEWAL RIGHT, IRRESPECTIVE OF WHETHER THE AUTHOR IN
HIS LIFETIME HAS OR HAS NOT MADE ANY ASSIGNMENT OF IT. SEE DE SYLVA V.
BALLENTINE, 351 U.S. 570.  PETITIONER ALSO CONCEDES - AND WE SEE NO
RATIONAL ESCAPE FROM THAT CONCLUSION - THAT WHERE THE AUTHOR DIES
INTESTATE PRIOR TO THE RENEWAL PERIOD LEAVING NO WIDOW, WIDOWER, OR
CHILDREN, THE NEXT OF KIN OBTAIN THE RENEWAL COPYRIGHT FREE OF ANY
CLAIM FOUNDED UPON AN ASSIGNMENT MADE BY THE AUTHOR IN HIS LIFETIME. 
THESE RESULTS FOLLOW NOT BECAUSE THE AUTHOR'S ASSIGNMENT IS INVALID BUT
BECAUSE HE HAD ONLY AN EXPECTANCY TO ASSIGN; (FN1) AND HIS DEATH, PRIOR
TO THE RENEWAL PERIOD, TERMINATES HIS INTEREST IN THE RENEWAL WHICH BY
SEC. 24 VESTS IN THE NAMED CLASSES.  THE RIGHT TO OBTAIN A RENEWAL
COPYRIGHT AND THE RENEWAL COPYRIGHT ITSELF EXIST ONLY BY REASON OF THE
ACT AND ARE DERIVED SOLELY AND DIRECTLY FROM IT. 

WE FAIL TO SEE THE DIFFERENCE IN THIS STATUTORY SCHEME BETWEEN WIDOW,
WIDOWERS, CHILDREN, OR NEXT OF KIN ON THE ONE HAND AND EXECUTORS ON THE
OTHER.  THE HIERARCHY OF PEOPLE GRANTED RENEWAL RIGHTS BY SEC. 24 ARE
FIRST, THE AUTHOR IF LIVING; SECOND, THE WIDOW, WIDOWER, OR CHILDREN,
IF HE OR SHE IS NOT LIVING; THIRD, HIS OR HER EXECUTORS IF THE AUTHOR
AND THE WIDOW, WIDOWER, OR CHILDREN ARE NOT LIVING; FOURTH, IN ABSENCE
OF A WILL, THE NEXT OF KIN.  TRUE, THESE ARE DISPARATE INTERESTS.  YET
CONGRESS SAW FIT TO TREAT THEM ALIKE.  IT SEEMS CLEAR TO US, FOR
EXAMPLE, THAT BY THE FORCE OF SEC. 24, IF BLACK HAD DIED INTESTATE, HIS
NEXT OF KIN WOULD TAKE AS AGAINST THE ASSIGNEE OF THE RENEWAL RIGHT. 
CONGRESS IN ITS WISDOM EXPRESSED A PREFERENCE FOR THAT GROUP AGAINST
THE WORLD, IF THE AUTHOR, THE WIDOW, THE WIDOWER, OR CHILDREN ARE NOT
LIVING.  BY SEC. 24 HIS EXECUTORS ARE PLACED IN THE SAME PREFERRED
POSITION, UNLESS WE REFASHION SEC. 24 TO SUIT OTHER POLICY
CONSIDERATIONS.  OF COURSE AN EXECUTOR USUALLY TAKES IN A
REPRESENTATIVE CAPACITY.  HE "REPRESENTS THE PERSON OF HIS TESTATOR" AS
FOX FILM CORP. V. KNOWLES, SUPRA, AT 330, STATES.  AND THAT NORMALLY
MEANS THAT WHEN THE TESTATOR HAS MADE CONTRACTS, THE EXECUTOR TAKES CUM
ONERE.  YET IT IS ALSO TRUE, AS POINTED OUT IN FOX FILM CORP. V.
KNOWLES, SUPRA, AT 330, THAT "IT IS NO NOVELTY" FOR THE EXECUTOR "TO BE
GIVEN RIGHTS THAT THE TESTATOR COULD NOT HAVE EXERCISED WHILE HE
LIVED."  IT IS CLEAR THAT UNDER THIS ACT THE EXECUTOR'S RIGHT TO RENEW
IS INDEPENDENT OF THE AUTHOR'S RIGHTS AT THE TIME OF HIS DEATH.  WHAT
CONGRESS HAS DONE BY SEC. 24 IS TO CREATE CONTINGENT RENEWAL RIGHTS. 
CONGRESS HAS PROVIDED THAT, WHEN THE AUTHOR DIES BEFORE THE RENEWAL
PERIOD ARRIVES, SPECIAL RULES IN DEROGATION OF THE USUAL RULES OF
SUCCESSION ARE TO APPLY FOR THE BENEFIT OF THREE CLASSES OF PEOPLE -
(1) WIDOWS, WIDOWERS, AND CHILDREN; (2) EXECUTORS; AND (3) NEXT OF
KIN.  WE THINK WE WOULD REDESIGN SEC. 24 IF WE HELD THAT EXECUTORS,
NAMED AS ONE OF THE PREFERRED CLASSES, DO NOT ACQUIRE THE RENEWAL
RIGHTS, WHERE THERE HAS BEEN A PRIOR ASSIGNMENT, THOUGH WIDOWS,
WIDOWERS, AND CHILDREN OR NEXT OF KIN WOULD ACQUIRE THEM.  CERTAINLY
FOX FILM CORP. V. KNOWLES, SUPRA, 329-330, STATES THAT WHAT ONE OF THE
THREE COULD HAVE DONE, EITHER OF THE OTHERS MAY DO. MR. JUSTICE HOLMES
SPEAKING FOR THE COURT SAID:

"NO ONE DOUBTS THAT IF CARLETON HAD DIED LEAVING A WIDOW SHE COULD
HAVE APPLIED AS THE EXECUTOR DID, AND EXECUTORS ARE MENTIONED ALONGSIDE
OF THE WIDOW WITH NO SUGGESTION IN THE STATUTE THAT WHEN EXECUTORS ARE
THE PROPER PERSONS, IF ANYONE, TO MAKE THE CLAIM, THEY CANNOT MAKE IT
WHENEVER A WIDOW MIGHT HAVE MADE IT.  THE NEXT OF KIN COME AFTER THE
EXECUTORS.  SURELY THEY AGAIN HAVE THE SAME RIGHTS THAT THE WIDOW WOULD
HAVE HAD." 

THE LEGISLATIVE HISTORY SUPPORTS THAT VIEW: 

"INSTEAD OF CONFINING THE RIGHT OF RENEWAL TO THE AUTHOR, IF STILL
LIVING, OR TO THE WIDOW OR CHILDREN OF THE AUTHOR, IF HE BE DEAD, WE
PROVIDE THAT THE AUTHOR OF SUCH WORK, IF STILL LIVING, MAY APPLY FOR
THE RENEWAL, OR THE WIDOW, WIDOWER, OR CHILDREN OF THE AUTHOR, IF THE
AUTHOR BE NOT LIVING, OR IF SUCH AUTHOR, WIDOW, WIDOWER, OR CHILDREN BE
NOT LIVING, THEN THE AUTHOR'S EXECUTORS, OR, IN THE ABSENCE OF A WILL,
HIS NEXT OF KIN.  IT WAS NOT THE INTENTION TO PERMIT THE ADMINISTRATOR
TO APPLY FOR THE RENEWAL, BUT TO PERMIT THE AUTHOR WHO HAD NO WIFE OR
CHILDREN TO BEQUEATH BY WILL THE RIGHT TO APPLY FOR THE RENEWAL." 
(FN2) 

THE CATEGORY OF PERSONS ENTITLED TO RENEWAL RIGHTS THEREFORE CANNOT
BE CUT DOWN AND REDUCED AS PETITIONER WOULD HAVE US DO.  SECTION 24
REFLECTS, IT SEEMS TO US, A CONSISTENT POLICY TO TREAT RENEWAL RIGHTS
AS EXPECTANCIES UNTIL THE RENEWAL PERIOD ARRIVES.  WHEN THAT TIME
ARRIVES, THE RENEWAL RIGHTS PASS TO ONE OF THE FOUR CLASSES LISTED IN
SEC. 24 ACCORDING TO THE THEN-EXISTING CIRCUMSTANCES.  UNTIL THAT TIME
ARRIVES, ASSIGNEES OF RENEWAL RIGHTS TAKE THE RISK THAT THE RIGHTS
ACQUIRED MAY NEVER VEST IN THEIR ASSIGNORS.  A PURCHASER OF SUCH AN
INTEREST IS DEPRIVED OF NOTHING.   LIKE ALL PURCHASERS OF CONTINGENT
INTERESTS, HE TAKES SUBJECT TO THE POSSIBILITY THAT THE CONTINGENCY MAY
NOT OCCUR.  FOR EXAMPLE, AN ASSIGNMENT FROM AN AUTHOR AND HIS WIFE WILL
BE INEFFECTIVE, IF ON HIS DEATH ANOTHER WOMAN IS THE WIDOW.  EXAMPLES
COULD BE MULTIPLIED.  WE HAVE SAID ENOUGH, HOWEVER, TO INDICATE THAT
THERE IS SYMMETRY AND LOGIC IN THE DESIGN OF SEC. 24.  WHETHER IT WORKS
AT TIMES AN INJUSTICE IS A MATTER FOR THE CONGRESS, NOT FOR US.
AFFIRMED. 

FN1  SPRING, RISKS AND RIGHTS IN PUBLISHING, TELEVISION, RADIO,
MOTION PICTURES, ADVERTISING, AND THE THEATRE (2D REV. ED. 1956), PP.
94-95; BALL, THE LAW OF COPYRIGHT AND LITERARY PROPERTY (1944), SEC.
243; LADAS, INTERNATIONAL PROTECTION OF LITERARY AND ARTISTIC PROPERTY
(1938), VOL. II, P. 772.   BUT SEE SHAFTER, MUSICAL COPYRIGHT (2D ED.
1939), P. 177. 

FN2  H.R. REP. NO. 2222, 60TH CONG., 2D SESS., P. 15.  AND SEE S.
REP. NO. 1108, 60TH CONG., 2D SESS., P. 15. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
WHITTAKER, AND MR. JUSTICE STEWART JOIN, DISSENTING. 

I CANNOT AGREE TO THIS DECISION, BY WHICH THE ASSIGNEE OF AN AUTHOR'S
RENEWAL RIGHTS IN A COPYRIGHTED WORK IS DEPRIVED OF THE FRUITS OF HIS
PURCHASE - A PURCHASE WHICH, WE MUST ASSUME, WAS MADE IN GOOD FAITH AND
FOR A CONSIDERATION FAIRLY AGREED UPON.  (FN1)  WHILE, FOR ALL THAT
APPEARS, THE AUTHOR IN THIS CASE MAY NOT HAVE CONTEMPLATED THE DEFEAT
OF HIS ASSIGNMENT, THE EFFECT OF THE DECISION IS TO ENABLE AN AUTHOR
WHO HAS SOLD HIS RENEWAL RIGHTS DURING HIS LIFETIME TO DEFEAT THE
TRANSACTION BY A DELIBERATE SUBSEQUENT BEQUEST OF THOSE RIGHTS TO
OTHERS IN HIS WILL. 

AN ASSIGNEE OF RENEWAL RIGHTS INTER VIVOS CANNOT OF COURSE PROTECT
HIMSELF FROM SUCH AN UNJUST RESULT BY OBTAINING AN ASSIGNMENT FROM THE
AUTHOR'S EXECUTOR, WHO ACQUIRES HIS STATUS AS SUCH ONLY UPON THE
AUTHOR'S DEATH.  NOR CAN HE WITH ANY ASSURANCE OF SUCCESS SEEK TO
SECURE ASSIGNMENTS FROM EVERYONE WHO MIGHT BE EXPECTED TO BE THE
FORTUNATE LEGATEE.  IN CONSEQUENCE, THE EFFICACY OF A GOOD-FAITH
ATTEMPT TO ACCOMPLISH A LASTING CONVEYANCE OF RENEWAL RIGHTS MAY
HEREAFTER DEPEND ON WHETHER A PARTICULAR TRANSACTION, UNDER THE LAW OF
WHICHEVER STATE MAY ULTIMATELY GOVERN THE MATTER, WILL BE DEEMED A
CONTRACT TO MAKE A WILL AND GIVEN EFFECT AS SUCH.  THE RESULTING
UNCERTAINTIES AS TO CONSTRUCTION, VALIDITY, AND MODE OF ENFORCEMENT OF
SUCH TRANSACTIONS UNDER THE LAWS OF THE VARIOUS STATES NEED HARDLY BE
SPELLED OUT.  A RESULT SO UNJUST AND UNSETTLING, AND WHICH INDEED MAY
IMPAIR THE MARKETABILITY OF AN AUTHOR'S RENEWAL RIGHTS, SHOULD BE
REACHED ONLY IF CLEAR STATUTORY LANGUAGE OR EVIDENT LEGISLATIVE PURPOSE
FAIRLY COMPELS IT.  FAR FROM RESTING ON SUCH CONSIDERATIONS, THIS
DECISION IS SUPPORTED ONLY BY A PARLAYING OF AN ILL-CONSIDERED
"CONCESSION" OF COUNSEL WITH AN EXALTATION OF LITERAL "SYMMETRY AND
LOGIC" (ANTE, P. 378) OVER WHAT IT SEEMS TO ME A MORE PENETRATING
INQUIRY INTO CONGRESSIONAL AIMS WOULD HAVE REVEALED. 

FOR CONVENIENCE I QUOTE THE COPYRIGHT ACT, 17 U.S.C. SEC. 24, AGAIN: 

"THAT  ...  THE AUTHOR OF SUCH WORK, IF STILL LIVING, OR THE WIDOW,
WIDOWER, OR CHILDREN OF THE AUTHOR, IF THE AUTHOR BE NOT LIVING, OR IF
SUCH AUTHOR, WIDOW, WIDOWER, OR CHILDREN BE NOT LIVING, THEN THE
AUTHOR'S EXECUTORS, OR IN THE ABSENCE OF A WILL, HIS NEXT OF KIN SHALL
BE ENTITLED TO A RENEWAL AND EXTENSION OF THE COPYRIGHT IN SUCH WORK
FOR A FURTHER TERM OF TWENTY-EIGHT YEARS WHEN APPLICATION FOR SUCH
RENEWAL AND EXTENSION SHALL HAVE BEEN MADE TO THE COPYRIGHT OFFICE AND
DULY REGISTERED THEREIN WITHIN ONE YEAR PRIOR TO THE EXPIRATION OF THE
ORIGINAL TERM OF COPYRIGHT." 

ON ITS FACE, THE SECTION MANIFESTS NO INTENTION TO DEAL WITH THE
PROBLEM OF PRIORITY OF RIGHTS AS BETWEEN AN ASSIGNEE AND THE PERSONS
NAMED IN THE SECTION.  THE DISCUSSION IN THE HOUSE REPORT QUOTED BY THE
COURT, ANTE, P. 377, LIKEWISE SHOWS NO ADVERTENCE TO THE QUESTION, AND
WE ARE REFERRED TO NO OTHER SIGNIFICANT LEGISLATIVE HISTORY ON THIS
SCORE.  HENCE, WE MUST RESOLVE THE MATTER IN LIGHT OF THE PURPOSE
DISCLOSED BY THE STRUCTURE OF THE PROVISION. 

ON THIS BASIS WE DO NOT WRITE UPON A CLEAN SLATE.  IN FISHER CO. V.
WITMARK & SONS, 318 U.S. 643, IT WAS ARGUED THAT THE RENEWAL PROVISIONS
OF THE STATUTE DEMONSTRATED A CONGRESSIONAL DETERMINATION "TO TREAT THE
AUTHOR AS THOUGH HE WERE THE BENEFICIARY OF A SPENDTHRIFT TRUST." 
BRIEF FOR PETITIONERS, NO. 327, O.T. 1942, P. 36.  THE COURT, FINDING
NO SUPPORT IN THE EVOLUTIONARY HISTORY OF THE LEGISLATION AND ITS
STRUCTURE, REJECTED THAT VIEW, AND HELD THAT AN AUTHOR COULD, DURING
THE ORIGINAL TERM OF HIS COPYRIGHT, VALIDLY ASSIGN HIS RIGHT TO APPLY
FOR THE RENEWAL, AND THAT HAVING DONE SO HE COULD NOT, UPON THE ARRIVAL
OF THE RENEWAL YEAR, HIMSELF CLAIM THAT RIGHT.  THE COURT SEEMS TO
REGARD THAT CASE AS ENTIRELY INAPPLICABLE IN A SITUATION WHERE, AS
HERE, THE AUTHOR HAS NOT SURVIVED THE BEGINNING OF THE RENEWAL YEAR. 
BUT HAD THE STATUTE CONFERRED RENEWAL RIGHTS ON "THE AUTHOR, IF STILL
LIVING, OR IF THE AUTHOR BE NOT LIVING, ON HIS EXECUTORS OR
ADMINISTRATORS," I HAVE LITTLE DOUBT THAT THE FISHER DECISION WOULD
CONTROL THIS CASE AND REQUIRE ITS REVERSAL.  THE IMPORTANT QUESTION,
THEN, IS TO DETERMINE THE EXTENT TO WHICH CONGRESS HAS SEEN FIT TO
DEPART FROM THE ORDINARY RULES OF SUCCESSION.  IN REACHING ITS
CONCLUSION, THE COURT HAS, I THINK, OVERLOOKED CRITICAL DISTINCTIONS
BETWEEN THE DIFFERENT CLAUSES OF THE STATUTE.    THE EVOLUTION OF SEC.
24 WAS EXHAUSTIVELY DESCRIBED AND ANALYZED IN FISHER, AND NEED NOT BE
RECANVASSED HERE.  SEE ALSO DE SYLVA V. BALLENTINE, 351 U.S. 570, 574
576.  BRIEFLY, THE CLAUSE REGARDING WIDOWS, WIDOWERS, AND CHILDREN
ORIGINATED WITH THE 1831 ACT, 4 STAT.  436, WHILE THAT DEALING WITH
EXECUTORS AND NEXT OF KIN WAS ADDED IN 1909, 35 STAT. 1081.  THE
RETENTION, AT THAT LATTER DATE, OF THE PROVISION FOR WIDOWS, WIDOWERS,
AND CHILDREN, AND ITS POSITION IN THE AMENDED STATUTE, CAN ONLY BE
TAKEN AS EXPRESSIVE OF A DESIRE TO REGARD THEM, IN THE WORDS OF THE
COURT, AS A "PREFERRED CLASS," AND TO ENSURE THAT THE AUTHOR COULD NOT
BY BEQUEST CONFER ON ANOTHER THE BENEFITS OF THE RENEWAL TERM.  CF. DE
SYLVA V. BALLENTINE, SUPRA, AT 582.  FOR IT WOULD INDEED BE ANOMALOUS
TO SAY THAT AN AUTHOR COULD CONVEY FOR A CONSIDERATION DURING HIS
LIFETIME WHAT HE IS NOT PERMITTED TO BEQUEATH AT DEATH.  HENCE I AGREE
THAT THE PROVISION FOR A "COMPULSORY BEQUEST," IBID., TO THE AUTHOR'S
WIDOW AND CHILDREN SHOULD BE HELD TO BAR EFFECTIVE ASSIGNMENT OF
RENEWAL RIGHTS AS AGAINST THEM. 

BUT I CANNOT PERCEIVE THE APPLICABILITY OF THIS REASONING TO THE
EXECUTOR.  THERE IS SIMPLY NO WARRANT FOR REGARDING HIM AS IN ANY WAY
ONE OF A "PREFERRED CLASS."  THE EXECUTOR HIMSELF MANIFESTLY COULD NOT
HAVE BEEN THE OBJECT OF SUCH CONGRESSIONAL SOLICITUDE, SINCE HE TAKES
NOTHING BENEFICIALLY, BUT ONLY AS A FIDUCIARY FOR THOSE BENEFITED BY
THE WILL.  AS TO THE LATTER, A LEGATEE CAN BE ANY PERSON, CORPORATION,
OR ASSOCIATION CAPABLE OF TAKING PROPERTY BY BEQUEST.  SURELY WE CANNOT
INFER LEGISLATIVE CONCERN OVER THE PROTECTION OF THE INTEREST OF
WHOSOEVER, OF THE LARGE INDETERMINATE CLASS OF POTENTIAL LEGATEES,
SHOULD PROVE IN FACT TO BE CHOSEN BY THE AUTHOR.  THE EVIDENT PURPOSE
OF THE CLAUSE REGARDING EXECUTORS WAS MERELY "TO PERMIT THE AUTHOR WHO
HAD NO WIFE OR CHILDREN TO BEQUEATH BY WILL THE RIGHT TO APPLY FOR THE
RENEWAL."  H.R. REP. NO. 2222, 60TH CONG., 2D SESS., P. 15.  THE COURT
GAVE FULL EFFECT TO THAT PURPOSE IN FOX FILM CORP. V. KNOWLES, 261 U.S.
326, WHEN IT HELD THAT AN EXECUTOR ACQUIRED THE RIGHT TO APPLY FOR
RENEWAL, EVEN THOUGH THE AUTHOR'S DEATH OCCURRED PRIOR TO THE RENEWAL
YEAR, WHEN THE AUTHOR HIMSELF FIRST COULD HAVE RENEWED HIS COPYRIGHT. 
IT GOES BEYOND THAT PURPOSE, AND BEYOND ANYTHING AT ISSUE IN FOX FILM,
TO READ INTO THE STATUTE A DESIRE TO PROTECT LEGATEES FROM THE CLAIMS
OF AN ASSIGNEE OF THE AUTHOR. 

THE COURT'S TREATMENT OF THE RIGHTS OF AN AUTHOR'S NEXT OF KIN IS
ESPECIALLY CURIOUS.  WITH NO MORE AUTHORITY THAN WHAT APPEARS TO ME TO
HAVE BEEN A DEMONSTRABLY UNNECESSARY "CONCESSION" OF COUNSEL, (FN2) THE
COURT REGARDS IT AS "CLEAR" THAT THE NEXT OF KIN TAKE OVER AN
ASSIGNEE.  FROM THIS DUBIOUS PREMISE, THE COURT REASONS THAT THE
EXECUTOR, BEING THUS SURROUNDED IN THE "HIERARCHY OF PEOPLE GRANTED
RENEWAL RIGHTS" BY PERSONS WHOSE RIGHTS ARE SUPERIOR TO THOSE OF AN
ASSIGNEE, MUST BE "PLACED IN THE SAME PREFERRED POSITION."  THIS
REASONING, I SUBMIT, IGNORES THE LEGISLATIVE PURPOSE EVIDENCED BY THE
STATUTE.  THERE IS NO BASIS WHATEVER FOR SUPPOSING THAT NEXT OF KIN
WERE SOUGHT TO BE PROTECTED FROM LOSS OF RIGHTS ARISING OUT OF THE
AUTHOR'S ACTS, IN THE SENSE THAT WIDOWS AND CHILDREN WERE.  FOR THE
OBVIOUS FACT IS THAT UNDER THE STATUTE NEXT OF KIN, THOUGH RELATED -
ALBEIT OFTEN DISTANTLY (FN3) - TO THE AUTHOR, MAY BE DEPRIVED OF ANY
INTEREST IN THE RENEWAL RIGHTS BY A BEQUEST OF THOSE RIGHTS BY THE
AUTHOR TO ANOTHER - EVEN TO ONE WHO IS A TOTAL STRANGER. 

IT IS THUS APPARENT THAT CONGRESS HAD NO INTENTION OF PROTECTING NEXT
OF KIN FROM DEFEASANCE OF THEIR EXPECTANCY.  ITS PURPOSE WAS MORE
LIMITED.  HAVING DETERMINED THAT, DESPITE AN AUTHOR'S DEATH WITHOUT A
SURVIVING SPOUSE OR CHILD PRIOR TO THE RENEWAL YEAR, HIS WORK SHOULD
NOT PASS INTO THE PUBLIC DOMAIN, CONGRESS SOUGHT TO ENSURE THAT THE
FAILURE OF THE AUTHOR TO LEAVE A WILL WOULD NOT BRING THIS RESULT
ABOUT.  THE DECISION TO GIVE THE RENEWAL RIGHTS DIRECTLY TO THE NEXT OF
KIN, RATHER THAN TO AN ADMINISTRATOR, MAY WELL HAVE BEEN DUE TO A
DESIRE TO SAVE AUTHORS' ESTATES - WHICH NOT INFREQUENTLY MIGHT CONTAIN
NO OTHER ASSET OF SUBSTANCE - THE EXPENSE OF GOING THROUGH
ADMINISTRATION.  BE THAT AS IT MAY, IT SEEMS TO ME ABUNDANTLY CLEAR
THAT THE RESULT NOW REACHED BY THE COURT WAS NEVER INTENDED. 

TO CONSTRUE THE STATUTE AS I HAVE IS NOT TO "REFASHION" IT, BUT ONLY
TO APPRAISE THE COMPETING CLAIMS OF THE AUTHOR'S ASSIGNEE AND THOSE
NAMED IN SEC. 24 IN LIGHT OF THE POLICY INDICATED BY THE MANNER IN
WHICH THE VARIOUS INTERESTS INVOLVED ARE DEALT WITH BY THE STATUTE. 
THE "SYMMETRY AND LOGIC" OF THE PROVISION IS A DYNAMIC, NOT A STATIC OR
SYNTACTICAL, SYMMETRY AND LOGIC.  CONSISTENTLY WITH FISHER, THE
ASSIGNMENT IS GIVEN EFFECT AS AGAINST THOSE WHOSE CLAIMS MUST REST ON
THE VOLUNTARY DECISION OF THE AUTHOR TO BENEFIT THEM; AS TO THE
SURVIVING SPOUSE AND CHILDREN, HOWEVER, THE LEGISLATIVE CARE TAKEN TO
MAKE THEIR RIGHTS INDEPENDENT OF THE AUTHOR'S DESIRES LEADS TO A
CONTRARY RESULT.  IT IS ONLY TO THAT EXTENT THAT CONGRESS HAS DEPARTED
FROM THE ORDINARY RULES OF SUCCESSION, IN ACCORD, IT MAY BE NOTED, WITH
MODERN LEGISLATIVE TRENDS PRECLUDING DISINHERITANCE OF WIDOWS AND
CHILDREN.  WE SHOULD NOT, BY FAILING TO HEED THE LIMITS OF THAT
DEPARTURE, FOSTER AN UNJUST AND DISRUPTIVE RESULT.  BY UNDERMINING THE
SALES VALUE OF RENEWAL RIGHTS AT THE EXPENSE OF THE AUTHOR AND HIS
IMMEDIATE FAMILY THIS DECISION IMPINGES ON THE VERY INTERESTS WHICH THE
COPYRIGHT ACT WAS DESIGNED TO PROTECT. 

I WOULD REVERSE. 

FN1  TODAY EVEN LESS THAN WHEN FISHER CO. V. WITMARK & SONS, 318 U.S.
643, WAS DECIDED, "CAN WE BE UNMINDFUL OF THE FACT THAT AUTHORS HAVE
THEMSELVES DEVISED MEANS OF SAFEGUARDING THEIR INTERESTS."  ID., AT
657.  MORE PARTICULARLY THERE IS NO SUGGESTION IN THIS CASE THAT THE
SALE OF THESE RENEWAL RIGHTS WAS IN ANY WAY IMPROVIDENT. 

FN2  IT IS NOT DIFFICULT TO UNDERSTAND WHY A PUBLISHER WOULD BE
CONTENT WITH A RULE PREFERRING THE NEXT OF KIN - WHO CAN ORDINARILY BE
DETERMINED WITH REASONABLE ACCURACY DURING THE ASSIGNOR'S LIFETIME, AND
FROM WHOM AN ASSIGNMENT CAN OFTEN BE PURCHASED, AS INDEED WAS DONE IN
THIS INSTANCE - AND AT THE SAME TIME REGARD APPLICATION OF A SIMILAR
PRINCIPLE TO THE EXECUTOR AS UNWORKABLE.  YET IT NEED HARDLY BE SAID
THAT SUCH PRACTICAL CONSIDERATIONS DO NOT RELIEVE THIS COURT OF THE
DUTY OF CONSTRUING THE STATUTE FOR ITSELF. 

FN3  OUR REFERENCE IN THE DE SYLVA CASE, SUPRA, AT 582, TO THE
"FAMILY" OF THE AUTHOR WAS OF COURSE TO THE IMMEDIATE FAMILY, THE
SPOUSE AND CHILDREN, AND NOT TO ALL THOSE RELATED, HOWEVER REMOTELY, TO
THE AUTHOR. 
..END :







MACKEY V. MENDOZA-MARTINEZ 362 U.S. 384 


NO. 29.  ARGUED NOVEMBER 10, 1959 - DECIDED APRIL 18, 1960 - CAUSE
REMANDED. 


IN THIS SUIT BY APPELLEE FOR A DECLARATORY JUDGMENT THAT HE IS A
CITIZEN OF THE UNITED STATES, THE UNDERLYING ISSUE AS TO THE
CONSTITUTIONALITY OF SEC. 401(J) OF THE NATIONALITY ACT OF 1940 BEING
CLOUDED BY AN ISSUE AS TO WHETHER COLLATERAL ESTOPPEL PREVENTS THE
GOVERNMENT FROM CHALLENGING APPELLEE'S CITIZENSHIP, THE CASE IS
REMANDED TO THE DISTRICT COURT WITH PERMISSION TO THE PARTIES TO AMEND
THE PLEADINGS, IF THEY SO DESIRE, TO PUT IN ISSUE THE QUESTION OF
COLLATERAL ESTOPPEL AND TO OBTAIN AN ADJUDICATION UPON IT.  PP. 384
387. 

MACKEY, COMMISSIONER OF IMMIGRATION AND NATURALIZATION, ET AL. V.
MENDOZA-MARTINEZ. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THIS IS A SUIT BY APPELLEE FOR A DECLARATORY JUDGMENT THAT HE IS A
CITIZEN OF THE UNITED STATES.  THE DISTRICT COURT SUSTAINED THE
CONTENTION OF THE UNITED STATES THAT APPELLEE HAD LOST HIS CITIZENSHIP
BY REASON OF SEC. 401(J) (FN1) OF THE NATIONALITY ACT OF 1940, 54 STAT.
1137, AS AMENDED, 58 STAT. 746, 8 U.S.C. SEC. 1481(A)(10), AND THE
COURT OF APPEALS AFFIRMED.  238 F.2D 239.  MEANWHILE WE HAD DECIDED
TROP V. DULLES, 356 U.S. 86; AND WHEN CERTIORARI WAS SOUGHT HERE WE
GRANTED THE PETITION AND REMANDED THE CAUSE TO THE DISTRICT COURT FOR
RECONSIDERATION IN LIGHT OF THAT DECISION.  356 U.S. 258.  ON REMAND
THE DISTRICT COURT HELD THAT SEC. 401(J) WAS UNCONSTITUTIONAL.  THE
CASE IS HERE ON DIRECT APPEAL (28 U.S.C. SEC. 1252) FROM THE JUDGMENT
OF THE DISTRICT COURT HOLDING THAT APPELLEE IS THEREFORE A CITIZEN OF
THE UNITED STATES.  WE NOTED PROBABLE JURISDICTION.  359 U.S. 933. 

AFTER THE CASE WAS ARGUED THE COURT, SUA SPONTE, PUT TO THE PARTIES
THE FOLLOWING QUESTIONS BASED ON APPELLEE'S CONVICTION FOR DRAFT
EVASION:  (FN2) 

"(1)  WAS THE JUDGMENT OF CONVICTION OF APPELLEE FOR DRAFT EVASION
PREMISED IN ANY RESPECT UPON HIS CITIZENSHIP STATUS AFTER THE DATE OF
ENACTMENT OF SECTION 401(J)? 

"(2)  IF SO, DOES THE JUDGMENT OF CONVICTION FOR ANY REASON FORECLOSE
LITIGATION OF THE APPELLEE'S CITIZENSHIP IN THE PRESENT CASE? 

"(3)  ARE THE FOREGOING QUESTIONS APPROPRIATE FOR THE COURT'S
CONSIDERATION?" 

THE PARTIES HAVE FILED SUPPLEMENTAL BRIEFS AND FROM THEM IT APPEARS
THAT THE OFFENSE CHARGED, AND TO WHICH APPELLEE PLEADED GUILTY, WAS
DEPARTING FROM THE UNITED STATES NOVEMBER 15, 1942, TO EVADE SERVICE IN
THE ARMED FORCES AND REMAINING AWAY UNTIL NOVEMBER 1, 1946.  THE
STATUTE UNDER WHICH HE WAS CONVICTED PLACED THE DUTY OF SERVICE ON
"EVERY MALE CITIZEN OF THE UNITED STATES, AND OF EVERY OTHER MALE
PERSON RESIDING IN THE UNITED STATES."  54 STAT. 885, AS AMENDED, 55
STAT. 844, 50 U.S.C. APP. 303(A) (1940 ED. SUPP. I). 

APPELLEE CONTENDS THAT WHILE THE ACT REQUIRES SERVICE OF ALIENS
RESIDING HERE, IT IS INAPPLICABLE TO NONRESIDENT ALIENS; AND THAT
THEREFORE THE CHARGE IN THE INDICTMENT THAT APPELLEE REMAINED AWAY
COULD BE APPLICABLE ONLY IF APPELLEE WERE A CITIZEN.  INDEED THE FACTS
STIPULATED IN THE PRESENT CASE STATE THAT HE WAS A CITIZEN BY BIRTH. 
IT FOLLOWS, APPELLEE ARGUES, THAT THE JUDGMENT OF CONVICTION FOR DRAFT
VIOLATION NECESSARILY INCLUDED AN ADJUDICATION OF CITIZENSHIP, AND THAT
THAT JUDGMENT BRINGS INTO PLAY THE DOCTRINE OF COLLATERAL ESTOPPEL
(WASHINGTON PACKET CO. V. SICKLES, 5 WALL.  580; EMICH MOTORS CORP. V.
GENERAL MOTORS CORP., 340 U.S. 558) SINCE THE CONVICTION OF DRAFT
EVASION WAS SUBSEQUENT TO SEPTEMBER 27, 1944, THE DATE OF THE ENACTMENT
OF SEC. 401(J).  THE SOLICITOR GENERAL ARGUES, INTER ALIA, THAT THE
ISSUE OF CITIZENSHIP WAS NOT NECESSARILY INVOLVED IN THE CONVICTION FOR
DRAFT EVASION SINCE THE CHARGE OF EVASION BY AN ALIEN WOULD BE MADE OUT
EVEN THOUGH HE HAD LEFT THE COUNTRY PROVIDED THE DUTY TO SERVE HAD
ATTACHED WHEN HE RESIDED HERE.  THE SOLICITOR GENERAL SUGGESTS,
HOWEVER, THAT THE AVOIDANCE OF A CONSTITUTIONAL ISSUE WHEN NOT CLEARLY
NECESSARY AND THE IMPORTANCE OF CITIZENSHIP TO THE APPELLEE ARE
IMPORTANT FACTORS TO BE CONSIDERED IN DISPOSING OF THE CASE.  HE IS OF
THE VIEW THAT "THERE IS SO LITTLE GROUND FOR SAYING THAT APPELLEE'S
CITIZENSHIP STATUS HAS ALREADY BEEN DEFINITIVELY DECIDED, WE BELIEVE
THAT THIS ISSUE SHOULD NOT AND NEED NOT BE CANVASSED BY THE COURT." 
YET WITH HIS CUSTOMARY CANDOR THE SOLICITOR GENERAL SAYS, "BUT IF THE
COURT SHOULD BE CONVINCED ON THIS RECORD THAT APPELLEE'S CITIZENSHIP
WAS AUTHORITATIVELY DETERMINED IN HIS FAVOR IN THE 1947 CRIMINAL
PROCEEDING, WE WOULD NOT OPPOSE A RESOLUTION OF THE CASE ON THAT
BASIS." 

THE ISSUE OF COLLATERAL ESTOPPEL IS A QUESTION THAT CLOUDS THE
UNDERLYING ISSUE OF CONSTITUTIONALITY.  SINCE THE ISSUE OF COLLATERAL
ESTOPPEL MAY BE DISPOSITIVE OF THE CASE, WE REMAND THE CAUSE TO THE
DISTRICT COURT WITH PERMISSION TO THE PARTIES TO AMEND THE PLEADINGS,
IF THEY SO DESIRE, TO PUT IN ISSUE THE QUESTION OF COLLATERAL ESTOPPEL
AND TO OBTAIN AN ADJUDICATION UPON IT. IT IS SO ORDERED. 

FN1  SECTION 401(J) READS AS FOLLOWS: 

"A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR
NATURALIZATION, SHALL LOSE HIS NATIONALITY BY: 

     *   *         *         *         * 

"(J)  DEPARTING FROM OR REMAINING OUTSIDE OF THE JURISDICTION OF THE
UNITED STATES IN TIME OF WAR OR DURING A PERIOD DECLARED BY THE
PRESIDENT TO BE A PERIOD OF NATIONAL EMERGENCY FOR THE PURPOSE OF
EVADING OR AVOIDING TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF
THE UNITED STATES." 

FN2  THE FACTS STIPULATED IN THE PRESENT CASE AND RELEVANT TO THAT
CONVICTION ARE: 

"III.  PLAINTIFF WAS BORN IN THE UNITED STATES ON MARCH 3, 1922, AND
THUS WAS A CITIZEN OF THE UNITED STATES AT BIRTH. 

"IV.  UNDER THE LAWS OF MEXICO PLAINTIFF IS NOW, AND EVER SINCE HIS
BIRTH HAS BEEN, A CITIZEN AND NATIONAL OF THE REPUBLIC OF MEXICO. 

"V.  DURING 1942 PLAINTIFF DEPARTED FROM THE UNITED STATES AND WENT
TO MEXICO FOR THE SOLE PURPOSE OF EVADING AND AVOIDING TRAINING AND
SERVICE IN THE ARMED FORCES OF THE UNITED STATES. 

"VI.  PLAINTIFF REMAINED IN MEXICO CONTINUOUSLY FROM SOMETIME DURING
1942 UNTIL ON OR ABOUT NOVEMBER 1, 1946 FOR THE SOLE PURPOSE OF EVADING
AND AVOIDING TRAINING AND SERVICE IN THE ARMED FORCES OF THE UNITED
STATES. 

"VII.  ON JUNE 23, 1947, PLAINTIFF UPON HIS PLEA OF GUILTY WAS
CONVICTED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF CALIFORNIA FOR VIOLATION OF SECTION 11 OF THE SELECTIVE SERVICE AND
TRAINING ACT OF 1940.  HE WAS SENTENCED TO IMPRISONMENT FOR A PERIOD OF
ONE YEAR AND ONE DAY." 

SEPARATE MEMORANDUM OF MR. JUSTICE FRANKFURTER. 

THE SOLICITOR GENERAL'S ACQUIESCENCE IN HAVING THIS CASE DISPOSED OF
BY AVOIDING DECISION OF THE IMPORTANT CONSTITUTIONAL QUESTION
CONCERNING THE VALIDITY OF SEC. 401(J) OF THE NATIONALITY ACT OF 1940,
WHICH IS THE ONLY ONE PRESENTED BY THE RECORD, PROBABLY REFLECTS AN
UNDERSTANDABLE DESIRE ON THE PART OF THE GOVERNMENT TO HAVE THIS COURT
ADJUDICATE THAT ISSUE UNEMBARRASSED BY AN EXTRANEOUS PROBLEM THAT DID
NOT COME TO THE SURFACE UNTIL THIS APPEAL HAD BEEN SUBMITTED.  I DO NOT
THINK THAT THIS NEW MATTER - A CLAIM OF COLLATERAL ESTOPPEL - SHOULD BE
CONSIDERED HERE AS THOUGH THIS WERE A COURT OF FIRST INSTANCE.  NO
MATTER HOW SYMPATHETIC ONE MAY BE TOWARDS LIBERALIZATION OF PLEADING
AND INFORMALITY IN JUDICIAL PROCEEDINGS, THE INTRINSIC DEMANDS OF
ORDERLINESS IN THE JUDICIAL PROCESS REQUIRE THAT THE ISSUES ON WHICH
THIS COURT IS TO RENDER JUDGMENT SHOULD BE APPROPRIATELY DEFINED
THROUGH PLEADINGS AND PROCEEDINGS IN THE LOWER COURTS AND NOT BE
INITIALLY SHAPED FOR ADJUDICATION IN THIS COURT.  APART FROM ALL ELSE,
SINCE TAKING TESTIMONY BEFORE THIS COURT HAS LONG SINCE CEASED TO BE
FEASIBLE, WE WOULD NECESSARILY HAVE TO ACT ON THE MERITS OF A CLAIM,
BASED ON THE RATHER OPAQUE LAW OF COLLATERAL ESTOPPEL, RESTING ON
DOCUMENTARY SUBMISSIONS NOT SUBJECT TO THE TEST OF TESTIMONIAL
EXAMINATION. 

I AM PREPARED, THEREFORE, TO ACCEDE TO THE SOLICITOR GENERAL'S
SUGGESTION, BUT TO DO SO BY WIPING THE SLATE CLEAN.  THIS CALLS FOR AN
APPROPRIATE ORDER VACATING THE PROCEEDINGS IN THIS COURT AND IN THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA AS WELL AS THE
DEPORTATION PROCEEDINGS WHICH DERIVED FROM A FINDING THAT THE APPELLEE
HAS LOST HIS CITIZENSHIP BY REASON OF SEC. 401(J) OF THE NATIONALITY
ACT, A CONCLUSION WHICH IS THE VERY ISSUE IN CONTROVERSY.  I WOULD DO
SO WITHOUT SUMMARIZING THE POSITIONS OF THE PARTIES ON THE CLAIM OF
COLLATERAL ESTOPPEL WHICH IS NOT RELEVANTLY BEFORE US ON THIS RECORD,
AND, ABOVE ALL, WITHOUT ANY INTIMATION REGARDING THE SERIOUSNESS OF
SUCH A CLAIM. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER
JOIN, DISSENTING. 

THIS CASE HAVING NOW BEEN IN THE COURTS FOR SOME SIX YEARS, WE THINK
THAT PROPER JUDICIAL ADMINISTRATION WOULD REQUIRE THE COURT TO DECIDE
THE QUESTION OF COLLATERAL ESTOPPEL, RAISED BELATEDLY AND SUA SPONTE. 
AS WE SEE IT, IF THE COURT CAN RAISE THAT ISSUE HERE, CERTAINLY WE CAN
DECIDE IT WITHOUT THE ADDITIONAL DELAY OF HAVING THE PARTIES GO THROUGH
THE MOTIONS OF AMENDING THE PLEADINGS, AS SUGGESTED.  THE COURT COULD
THEN PASS UPON THE CONSTITUTIONAL ISSUE AND ADVISE THE CONGRESS OF ITS
POWER IN THIS IMPORTANT FIELD, IN WHICH IT LEGISLATED SOME 16 YEARS
AGO. 
..END :




YANCY V. UNITED STATES 362 U.S. 389 


NO. 47.  ARGUED DECEMBER 8-9, 1959 - DECIDED APRIL 18, 1960 - 252 F.2D
554, AFFIRMED BY AN EQUALLY DIVIDED COURT. 


YANCY V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














NIUKKANEN, ALIAS MACKIE V. MCALEXANDER 362 U.S. 390 


NO. 130.  ARGUED MARCH 21, 1960 - DECIDED APRIL 18, 1960 - 265 F.2D 825,
AFFIRMED. 


ON THE RECORD IN THIS CASE, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE
CONCLUSION OF THE DISTRICT COURT, AFFIRMED BY THE COURT OF APPEALS,
THAT PETITIONER, AN ALIEN, HAD BECOME A MEMBER OF THE COMMUNIST PARTY
AFTER ENTERING THE UNITED STATES AND, THEREFORE, WAS DEPORTABLE UNDER
THE ACT OF OCTOBER 16, 1918, AS AMENDED BY SEC. 22 OF THE INTERNAL
SECURITY ACT OF 1950.  PP. 390-391. 

NIUKKANEN, ALIAS MACKIE, V. MCALEXANDER, ACTING DISTRICT DIRECTOR,
IMMIGRATION AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE PETITIONER SOUGHT RELIEF FROM AN ORDER DIRECTING HIS DEPORTATION
ON THE GROUND THAT AS AN ALIEN HE HAD BECOME, AFTER ENTERING THE UNITED
STATES, A MEMBER OF THE COMMUNIST PARTY WITHIN THE MEANING OF THE ACT
OF OCTOBER 16, 1918, AS AMENDED BY SEC. 22 OF THE INTERNAL SECURITY ACT
OF 1950, 64 STAT. 987, 1006.  THE DISTRICT COURT, AFTER HEARING, DENIED
THE PETITION, 148 F. SUPP. 106, AND THE COURT OF APPEALS AFFIRMED.  241
F.2D 938.  INVOKING ROWOLDT V. PERFETTO, 355 U.S. 115, DECIDED AFTER
THE ORDER FOR HIS DEPORTATION, PETITIONER SOUGHT AN ADMINISTRATIVE
RECONSIDERATION OF HIS STATUS.  UPON ITS DENIAL BY THE BOARD OF
IMMIGRATION APPEALS HE BEGAN THE JUDICIAL PROCEEDING IMMEDIATELY BEFORE
US FOR REVIEW.  AFTER A HEARING, THE DISTRICT COURT AGAIN DENIED HIS
PETITION FOR RELIEF AND THE COURT OF APPEALS AFFIRMED THE ORDER OF THE
DISTRICT COURT.  265 F.2D 825.  THE ULTIMATE QUESTION IS WHETHER
PETITIONER IS SUBJECT TO DEPORTATION UNDER GALVAN V. PRESS, 347 U.S.
522, OR IS SAVED FROM IT UNDER ROWOLDT V. PERFETTO, SUPRA.  THE
DETERMINATION OF THIS ISSUE TURNS ON EVALUATION OF THE TESTIMONY BEFORE
THE DISTRICT COURT, IN LIGHT OF GALVAN V. PRESS, SUPRA, AND ROWOLDT V.
PERFETTO, SUPRA.  SUCH ASSESSMENT LARGELY DEPENDS ON THE CREDIBILITY OF
THE TESTIMONY ON WHICH THE DISTRICT JUDGE BASED HIS JUDGMENT,
PARTICULARLY THAT OF THE PETITIONER HIMSELF, WHOM THE JUDGE SAW AND
HEARD.  AN ABLE JUDGE FOUND THAT PETITIONER IN DENYING MEMBERSHIP IN
THE COMMUNIST PARTY, UNLIKE ROWOLDT WHO ADMITTED MEMBERSHIP, SEE 355
U.S., AT 116-117, BUT ACCOUNTED FOR ITS INNOCENCE, "PERJURED HIMSELF
BEFORE, AND I BELIEVE THAT HE PERJURED HIMSELF TODAY."  WE CANNOT SAY
THAT HIS FINDINGS, AFFIRMED BY THE COURT OF APPEALS, WERE CLEARLY
ERRONEOUS AND DO NOT SUPPORT THE CONCLUSION OF BOTH THE LOWER COURTS. 
JUDGMENT AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

PETITIONER WAS BORN IN FINLAND IN 1908, CAME HERE WHEN HE WAS LESS
THAN A YEAR OLD AND HAS RESIDED HERE EVER SINCE.  HE IS MARRIED TO A
NATIVE-BORN CITIZEN; HE SERVED HONORABLY IN OUR ARMY; AND HE HAS NO
CRIMINAL RECORD OF ANY KIND EXCEPT FOR A PETTY OFFENSE, BACK IN 1930. 

THE EVIDENCE AGAINST PETITIONER WAS GIVEN BY TWO WITNESSES WHO HAD
ONCE BEEN COMMUNISTS, ONE OF WHOM PETITIONER SWORE HE NEVER KNEW.  THEY
TESTIFIED THAT PETITIONER WAS A MEMBER OF THE COMMUNIST PARTY FROM 1937
TO 1939 IN PORTLAND, OREGON.  ONE OF THEM TESTIFIED THAT PETITIONER HAD
ASSISTED IN THE CIRCULATION OF A PAPER, LABOR NEW DEALER, WHICH
APPARENTLY WAS AN ORGAN OF THE PARTY.  THERE WAS EVIDENCE HE PAID DUES
TO THE PARTY OF 25 CENTS A MONTH AND THAT HE ATTENDED BOTH OPEN AND
CLOSED MEETINGS OF THE PARTY.  BUT EVEN THESE TWO EX-COMMUNISTS WHO
APPEARED AGAINST PETITIONER SAID THAT THERE WAS NO DISCUSSION OF WAYS
AND MEANS TO OVERTHROW THE GOVERNMENT AT THOSE MEETINGS, THAT ONLY
PROBLEMS SUCH AS LABOR CONDITIONS, RELIEF, AND THE LIKE WERE
DISCUSSED.  ONE ALSO SWORE THAT PETITIONER NEVER ADVOCATED THE
OVERTHROW OF THE GOVERNMENT.  PETITIONER'S INTEREST IN THE PARTY,
ACCORDING TO ONE OF THESE HOSTILE WITNESSES, WAS AS A RESULT OF "THE
SUFFERINGS OF THE PEOPLE IN THE DEPRESSION"; AND HE WAS "VERY
SYMPATHETIC TOWARD THEIR WELFARE."  THIS WITNESS AGREED THAT PETITIONER
WAS NOT AN INTELLECTUAL INTERESTED IN "THEORY" OR "POLITICAL
DISCUSSION."  HIS INTERESTS WERE "IN BREAD AND BUTTER TOPICS OF THE
DAY, WHAT TO DO FOR UNEMPLOYMENT AND RELIEF."  NOR HAD PETITIONER EVER
TAUGHT THE COMMUNIST DOCTRINE NOR DISTRIBUTED ITS LITERATURE, EXCEPT
FOR THE LABOR NEW DEALER. 

THESE TWO EX-COMMUNISTS TESTIFIED THAT PETITIONER ATTENDED DANCES
THAT THE PARTY ARRANGED IN PORTLAND.  BUT THEY SAID HE NEVER HELD AN
OFFICE IN THE PARTY; NOR WAS EVER EMPLOYED BY THE PARTY; NOR WAS EVER A
"FUNCTIONARY" IN THE SENSE OF REPRESENTING THE PARTY.  HE ATTENDED A
REGIONAL MEETING AT ABERDEEN, WASHINGTON, WHERE VARIOUS SPEAKERS,
ACCORDING TO ONE EX-COMMUNIST, GAVE "GLOWING ACCOUNTS" OF THEIR WORK
FOR THE PARTY, "MORE OR LESS FABRICATING" THEIR ACHIEVEMENTS. 

WE KNOW FROM PETITIONER'S LIPS THAT HE WAS NOT ACQUAINTED WITH THE
CONVENTIONAL COMMUNIST LITERATURE; AND NOTHING CAME FROM THE LIPS OF
HIS ACCUSERS THAT DENIED IT.  ONE WHO READS THE WHOLE OF THIS RECORD
CANNOT PUT IT DOWN WITHOUT FEELING THAT HERE IS A MAN NEITHER
CONSPIRATORIAL, DANGEROUS, CUNNING, NOR KNOWLEDGEABLE.  PETITIONER - A
PAINTER BY TRADE - REPRESENTS A MICROSCOPIC ELEMENT IN THE RANKS OF OUR
LABOR FORCE WHO WAS CAUGHT UP IN A MOVEMENT WHOSE IDEOLOGY HE DID NOT
UNDERSTAND AND WHOSE LEADERS SPOKE IN TERMS OF BREAD FOR THE HUNGRY,
AND JOBS FOR THE UNEMPLOYED.  HE HAS RECENTLY EARNED ABOUT $4,000 A
YEAR; HE BOUGHT A HOME FOR $3,100 (WHICH IS NOW WORTH FROM $6,000 TO
$6,500 SUBJECT TO A $2,500 MORTGAGE); AND HE HAS PERSONAL PROPERTY,
INCLUDING A CAR, WORTH $2,000. 

THIS IS THE BACKGROUND AGAINST WHICH THE FOLLOWING TESTIMONY CAN BE
BEST UNDERSTOOD. 

"Q.  IN THE FINNISH HALL OR ANYWHERE ELSE DID YOU ATTEND COMMUNIST
PARTY MEETINGS? 

"A.  WELL, IF I SAID YES AND IF I SAID NO MAYBE I WOULDN'T BE TELLING
THE TRUTH, BECAUSE I REALLY COULDN'T TELL ONE WAY OR THE OTHER.  I WENT
TO MEETINGS THERE.  SOMETIMES MAYBE THEY WERE COMMUNIST, AND MAYBE THEY
WASN'T.  IT COULD HAVE BEEN AND MAYBE THEY WASN'T. 

     *         *         *     *         * 

"Q.  HAVE YOU BEEN A MEMBER OF THE COMMUNIST PARTY OF THE UNITED
STATES OR ANY BRANCH OR AFFILIATE OR ORGANIZATION BY THAT NAME OR ANY
SIMILAR NAME? 

"A.  KNOWINGLY, I HAVEN'T, NO. 

     *         *         *         *    * 

"Q.  DO YOU BELIEVE THAT MEMBERSHIP IN THE COMMUNIST PARTY NOW IS A
LAWFUL POLITICAL PURPOSE? 

"A.  NO. I CAN'T ANSWER QUESTIONS ABOUT THAT BECAUSE I DON'T KNOW. 
IF CONGRESS SAYS IT IS UNLAWFUL, IT IS UNLAWFUL.  IF IT ISN'T, IT
ISN'T.  I DON'T KNOW.  IF I GOT THE QUESTION RIGHT, I DON'T KNOW. 

"Q.  I AM NOT TRYING TO CONFUSE YOU,  ...  I AM TRYING TO FIND OUT
YOUR FEELINGS TOWARD COMMUNISM. 

"A.  NATURALLY I DON'T - COMMUNISM OR SOCIALISM, I DON'T CARE WHAT
PARTY IT IS HERE OR ANY PLACE ELSE, IF IT HAS ANYTHING TO DO WITH
OVERTHROWING THE GOVERNMENT BY FORCE AND VIOLENCE I DON'T AGREE WITH
IT, NO. 

  *         *         *         *         * 

"Q.  WHAT WAS YOUR IMPRESSION OF WHAT THE COMMUNIST PARTY WAS TRYING
TO DO? 

"A.  WELL, THE ONLY THING I HEARD IN THOSE DAYS WAS MORE RELIEF AND
MORE WORK, AND I NEVER HEARD ANYTHING ELSE; NO VIOLENT OVERTHROW OF THE
GOVERNMENT, OR ANYTHING OF THAT SORT, BUT ANYPLACE I WENT TO MEETINGS
WAS ALWAYS MORE WORK AND MORE FOOD. 

"Q.  AS FAR AS YOU KNOW, THAT WAS WHAT THE COMMUNIST PARTY STOOD FOR
DURING THAT PERIOD? 

"A.  I DON'T KNOW IF THEY STOOD FOR THAT, BUT I NEVER HEARD ANYTHING
AGAINST IT. 

THE CASE IS ON ALL FOURS WITH ROWOLDT V. PERFETTO, 355 U.S. 115.  THE
"SOLIDITY OF PROOF" (ID., AT 120) REQUIRED FOR THE SEVERE CONSEQUENCES
OF THE DEPORTATION OF A MAN WHO CAME HERE WHEN HE WAS LESS THAN ONE
YEAR OLD, WHOSE ONLY MEMORY OF LIFE IS IN THIS LAND, AND WHO HAS LIVED
HERE OVER 50 YEARS HAS NOT BEEN MET.  THE "MEANINGFUL ASSOCIATION" WITH
THE PARTY WHICH THE ROWOLDT CASE REQUIRES (ID., AT 120) SIMPLY HAS NOT
BEEN ESTABLISHED HERE.  IN THIS CASE, AS IN ROWOLDT, PETITIONER'S
ASSOCIATION WITH THE PARTY WAS "WHOLLY DEVOID OF ANY 'POLITICAL'
IMPLICATIONS."  ID., AT 120. 

THE TESTIMONY OF THE TWO EX-COMMUNISTS UPON WHICH PETITIONER IS BEING
BANISHED HAS NEVER BEEN HEARD BY A COURT.  THE ONLY TESTIMONY TAKEN BY
THE DISTRICT COURT WAS THAT OF THE PETITIONER AND HIS CHARACTER
WITNESSES.  THE DISTRICT JUDGE BELIEVED THE WITNESSES AGAINST NIUKKANEN
BY VIRTUE OF HAVING READ THE SAME RECORD THAT IS NOW BEFORE THIS
COURT.  HIS IMPRESSION OF THEIR CREDIBILITY CAN BE NO MORE RELIABLE
THAN OUR OWN.  CERTAINLY THEN HIS CONCLUSION THAT PETITIONER "PERJURED
HIMSELF BEFORE, AND  ...  PERJURED HIMSELF TODAY" DOES NOT PRECLUDE
THIS COURT'S REVIEW OF THE EVIDENCE AGAINST HIM.  APART FROM THAT, THE
EVIDENCE WOULD BE FAR TOO MEAGRE TO ESTABLISH THE "MEANINGFUL
ASSOCIATION" WHICH WE REQUIRED IN THE ROWOLDT CASE. 

THE UNANIMITY OF ALL THE FINDERS OF FACT IN THE ROWOLDT CASE (ID., AT
119) THAT ROWOLDT WAS A "MEMBER" OF THE PARTY AND HIS REFUSAL TO ANSWER
WHEN ASKED IN THE DEPORTATION PROCEEDINGS WHETHER HE HAD EVER BEEN A
MEMBER OF THE COMMUNIST PARTY, DID NOT STOP US FROM DECLARING THAT "THE
RECORD BEFORE US IS ALL TOO INSUBSTANTIAL TO SUPPORT THE ORDER OF
DEPORTATION."  ID., AT 121.  THE UNANIMITY OF THE FINDERS OF FACT IN
THE PRESENT CASE SHOULD LIKEWISE BE NO BARRIER TO OUR ENTRY OF A JUST
DECREE.  A MAN WHO HAS LIVED HERE FOR EVERY MEANINGFUL MONTH OF HIS
ENTIRE LIFE SHOULD NOT BE SENT INTO EXILE FOR ACTS WHICH THIS RECORD
REVEALS WERE UTTERLY DEVOID OF ANY SINISTER IMPLICATION. 
..END :






















WARD V. ATLANTIC COAST LINE RAILROAD CO. 362 U.S. 396 


NO. 485.  ARGUED MARCH 31, 1960 - DECIDED APRIL 18, 1960 - 265 F.2D 75,
REVERSED. 


IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT TO RECOVER
FROM A RAILROAD DAMAGES FOR INJURIES SUSTAINED BY PETITIONER WHILE
WORKING ON A PRIVATE SIDING OWNED BY ONE OF THE RAILROAD'S CUSTOMERS,
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY AS TO THE FACTORS TO BE
CONSIDERED IN DETERMINING WHETHER PETITIONER WAS AN "EMPLOYEE" OF THE
RAILROAD, WITHIN THE MEANING OF THE ACT, DURING THE PERFORMANCE OF THE
WORK; AND AFFIRMANCE OF A JUDGMENT ENTERED ON THE JURY'S VERDICT FOR
THE RAILROAD IS REVERSED.  PP. 396-400. 

WARD V. ATLANTIC COAST LINE RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT.
65, AS AMENDED, 45 U.S.C. SECS. 51-60, THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT, BY A DIVIDED COURT, AFFIRMED A JUDGMENT IN FAVOR OF THE
RESPONDENT RAILROAD ENTERED ON A JURY VERDICT IN THE DISTRICT COURT FOR
THE NORTHERN DISTRICT OF FLORIDA.  265 F.2D 75.  WE GRANTED CERTIORARI,
361 U.S. 861, TO CONSIDER THE ISSUES PRESENTED IN THE LIGHT OF OUR
DECISIONS IN SINKLER V. MISSOURI PACIFIC R. CO., 356 U.S. 326, AND
BAKER V. TEXAS & PACIFIC R. CO., 359 U.S. 227.  THE LATTER IS AN
INTERVENING DECISION. 

THE RAILROAD EMPLOYED THE PETITIONER AS A LABORER IN A SECTION GANG
WITH A REGULAR WORK-WEEK FROM MONDAY THROUGH FRIDAY.  THE PETITIONER
WAS INJURED ON A SATURDAY, ORDINARILY THE GANG'S DAY OFF, WHEN THE
GANG, SUPERVISED BY THEIR FOREMAN, USING THE WORK TOOLS SUPPLIED BY THE
RAILROAD, AND FOLLOWING STANDARD RAILROAD METHODS FOR DOING THE WORK,
WERE REPLACING TIES UNDER A SIDING TRACK WHICH RAN OFF THE RAILROAD'S
MAIN LINE TRACKS TO THE PLANT OF THE M.&M. TURPENTINE COMPANY.  THAT
COMPANY HAD AN AGREEMENT WITH THE RAILROAD CALLING FOR THE RAILROAD TO
MAKE PERIODIC INSPECTIONS OF THE TRACK AND FOR THE REPAIRS DISCLOSED TO
BE NECESSARY BY SUCH INSPECTIONS TO BE MADE BY AND AT THE EXPENSE OF
THE TURPENTINE COMPANY "TO THE SATISFACTION OF THE (RAILROAD'S) CHIEF
ENGINEER."  WHEN AN INSPECTION REVEALED THE NEED FOR THE WORK IN
QUESTION, THE TURPENTINE COMPANY ENGAGED THE PETITIONER'S FOREMAN TO
RECRUIT HIS CREW TO DO THE WORK ON THEIR DAY OFF UNDER HIS DIRECTION. 
THE FOREMAN OFFERED THE CREW RAILROAD OVERTIME RATES OF PAY FOR DOING
THE WORK, BUT THERE IS A SHARP CONFLICT IN THE EVIDENCE WHETHER HE TOLD
THE CREW THAT THEY WOULD NOT BE WORKING FOR THE RAILROAD BUT FOR
SOMEONE ELSE.  THE FOREMAN PAID THE WAGES WITH FUNDS SUPPLIED TO HIM BY
THE TURPENTINE COMPANY. 

THE PETITIONER CONTENDS THAT THE PROOFS REQUIRED A HOLDING AS A
MATTER OF LAW THAT THE TURPENTINE COMPANY, IN THE MAINTENANCE OF THE
SIDING, WAS THE "AGENT" OF THE RESPONDENT RAILROAD WITHIN THE MEANING
OF SEC. 1 OF THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C.  SEC. 51,
AS WE CONSTRUED THAT TERM IN SINKLER V. MISSOURI PACIFIC R. CO., SUPRA.
WE FIND NO MERIT IN THIS CONTENTION.  INDEED, WE DO NOT THINK THAT THE
PROOFS PRESENTED A JURY QUESTION WHETHER THE TURPENTINE COMPANY WAS THE
RAILROAD'S "AGENT" WITHIN THE MEANING OF THE ACT.  THIS WAS NOT A
SITUATION, AS IN SINKLER, IN WHICH THE RAILROAD ENGAGED AN INDEPENDENT
CONTRACTOR TO PERFORM OPERATIONAL ACTIVITIES REQUIRED TO CARRY OUT THE
FRANCHISE.  THIS WAS A SIDING PRIVATELY OWNED BY THE TURPENTINE COMPANY
AND ESTABLISHED TO SERVICE IT ALONE.  IN MAINTAINING IT, WE DO NOT SEE
HOW IT CAN BE SAID UNDER THE PROOFS THAT THE TURPENTINE COMPANY WAS
"ENGAGED IN FURTHERING THE OPERATIONAL ACTIVITIES OF RESPONDENT." 
SINKLER V. MISSOURI PACIFIC R. CO., SUPRA, AT 331.  EVEN THE USE OF THE
SIDING BY LOCAL FARMERS IN HARVEST TIME TO LOAD RESPONDENT'S CARS WITH
WATERMELONS, A FACT HEAVILY RELIED UPON BY THE PETITIONER, WAS,
ACCORDING TO UNCONTRADICTED TESTIMONY, NOT AT THE INSTANCE OF THE
RAILROAD BUT BECAUSE THE PRESIDENT OF THE TURPENTINE COMPANY "LEASED
THIS TRACK - I GUESS THAT IS WHAT YOU WOULD CALL IT - ANYHOW, HE LET
THOSE FARMERS LOAD WATERMELONS OUT THERE ON THAT TRACK AND HE ALWAYS
REPAIRED IT EVERY YEAR BEFORE WATERMELON TIME." 

HOWEVER, WE AGREE WITH THE PETITIONER'S ALTERNATIVE CONTENTION THAT
THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY AS REQUESTED BY
THE PETITIONER, (FN1) AND IN GIVING THE INSTRUCTIONS HE DID, (FN2) AS
TO THE FACTORS TO BE CONSIDERED BY THE JURY IN DETERMINING WHETHER THE
PETITIONER WAS AN "EMPLOYEE" OF THE RAILROAD DURING THE PERFORMANCE OF
THE WORK WITHIN THE MEANING OF THE ACT.  THE INSTRUCTIONS GIVEN IN
EFFECT LIMITED INQUIRY TO THE QUESTION WHETHER THE PETITIONER WAS AWARE
THAT THE RAILROAD CONSIDERED HIM NOT TO BE WORKING FOR IT BUT FOR SOME
THIRD PARTY.  BUT NEITHER THE RAILROAD'S COMMUNICATION OF ITS CONCEPT
OF PETITIONER'S STATUS TO PETITIONER, NOR HIS ACQUIESCENCE THEREIN, IF
SHOWN, IS DETERMINATIVE OF THE ISSUE.  CF. CIMORELLI V. NEW YORK
CENTRAL R. CO., 148 F.2D 575, 578.  THE PARTIES' CHARACTERIZATION IS
BUT ONE FACTOR TO BE CONSIDERED AMONG OTHERS, SEE RESTATEMENT, AGENCY
2D, SEC. 220(2)(I), AND THE ISSUE IS ONE FOR DETERMINATION BY THE JURY
ON THE BASIS OF ALL THE RELEVANT FACTORS.  BAKER V. TEXAS & PACIFIC R.
CO., SUPRA.  REVERSED. 

FN1  THE REQUESTED INSTRUCTIONS WERE THE FOLLOWING: 

"ONE OF THE ISSUES TO BE DECIDED IN THIS CASE IS WHETHER OR NOT THE
PLAINTIFF, RAYMOND P. WARD, WAS EMPLOYED BY THE DEFENDANT RAILROAD AT
THE TIME HE WAS INJURED.  THIS ISSUE MUST BE DETERMINED FROM ALL OF THE
CIRCUMSTANCES OF THE CASE.  THE PRIMARY FACTOR TO BE CONSIDERED IS
WHETHER OR NOT THE RAILROAD HAD THE POWER TO DIRECT, CONTROL, AND
SUPERVISE THE PLAINTIFF IN THE PERFORMANCE OF HIS WORK AT THE TIME HE
WAS INJURED.  OTHER RELEVANT FACTORS TO BE CONSIDERED ARE:  WHO
SELECTED AND ENGAGED THE PLAINTIFF TO PERFORM THE WORK; WHO FURNISHED
THE TOOLS WITH WHICH THE WORK WAS PERFORMED; WHO PAID THE PLAINTIFF HIS
WAGES FOR THE PERFORMANCE OF THE WORK; THE AMOUNT OF SCALE OF SUCH
WAGES; AND WHO HAD THE POWER TO FIRE OR DISMISS THE PLAINTIFF FROM THE
WORK. 

"IF YOU FIND THAT THE RAILROAD, THROUGH ITS FOREMAN, I.H. KEEN, HAD
THE POWER TO DIRECT, CONTROL AND SUPERVISE THE PLAINTIFF IN THE
PERFORMANCE OF THE WORK HE WAS DOING AT THE TIME HE WAS INJURED, THEN
YOU SHOULD FIND THAT THE PLAINTIFF WAS EMPLOYED BY THE DEFENDANT
RAILROAD AT THE TIME HE WAS INJURED. 

"THE FACT THAT THE MONEY USED TO PAY THE PLAINTIFF WARD FOR THE WORK
HE WAS DOING AT THE TIME HE WAS INJURED CAME ORIGINALLY FROM SOME THIRD
PERSON WITH WHOM THE RAILROAD OR THE OWNER OF THE SPUR TRACK HAD MADE
AN ARRANGEMENT, DOES NOT REMOVE THE DEFENDANT RAILROAD FROM ITS
EMPLOYER-EMPLOYEE RELATIONSHIP WITH THE PLAINTIFF WARD AND DOES NOT
RELIEVE THE DEFENDANT RAILROAD OF LIABILITY FOR INJURIES SUFFERED BY
THE PLAINTIFF DURING THE COURSE OF HIS RAILROAD EMPLOYMENT AS A RESULT
OF THE DEFENDANT RAILROAD'S NEGLIGENCE. 

"THE ACCIDENT HERE INVOLVED OCCURRED UPON A SPUR TRACK WHICH WAS
PARTLY OWNED BY THE M.&M. TURPENTINE CO. THE FACT THAT THE M.&M.
TURPENTINE CO. HAD CONTRACTED WITH THE DEFENDANT RAILROAD TO MAINTAIN
ALL OR A PORTION OF THIS SPUR TRACK DOES NOT RELIEVE THE DEFENDANT
RAILROAD OF ITS LIABILITY TO THE PLAINTIFF IF THE PLAINTIFF WAS INJURED
DURING THE COURSE OF HIS EMPLOYMENT WITH THE DEFENDANT RAILROAD ON THE
SPUR TRACK AS A DIRECT CONSEQUENCE, IN WHOLE OR IN PART, OF THE
DEFENDANT RAILROAD'S NEGLIGENCE." 

FN2  THE PERTINENT PORTION OF THE COURT'S CHARGE WAS AS FOLLOWS: 

"THAT THE RAILROAD COMPANY WAS LIABLE UNLESS THE DEFENDANT'S FOREMAN
MADE IT CLEAR TO HIM BEFORE HE STARTED TO WORK THAT MORNING THAT THEY
WERE NOT WORKING FOR THE RAILROAD, BUT WORKING ON A PRIVATE TRACK TO
MAKE SOME EXTRA MONEY.  I THINK I PUT IT JUST ABOUT THAT SIMPLY, DIDN'T
I, TO MAKE SOME EXTRA MONEY.  I TOLD YOU THAT IF THE FOREMAN FAILED TO
MAKE THAT DISCLOSURE TO HIM, ORDERED HIM TO GO OUT THERE AND GO TO
WORK, AND PUT HIM TO WORK ON THAT PRIVATE TRACK, THE RAILROAD COMPANY
WOULD BE LIABLE.  I DON'T SEE HOW I CAN SAY IT ANY PLAINER.  DO YOU
HAVE A WORD THAT YOU THINK I COULD USE TO MAKE IT ANY PLAINER? 

"MR. RUTLEDGE:  YOUR HONOR, TO MAKE IT CLEAR HE WAS WORKING FOR SOME
THIRD PERSON AND NOT WORKING FOR THE RAILROAD. 

"THE COURT:  YES SIR, THAT IS THE WORD I BELIEVE HE SUGGESTED - THAT
HE WAS WORKING FOR SOME THIRD PERSON.  THE FOREMAN HAD TO MAKE IT CLEAR
TO HIM THAT HE WAS WORKING FOR SOME THIRD PERSON AND NOT THE RAILROAD. 
I THOUGHT I SAID IT, BUT I GUESS I DIDN'T SPELL IT OUT AS MUCH AS HE
WANTED, BUT I WANT TO MAKE THAT CLEAR TO YOU.  IF YOU FIND FROM THIS
EVIDENCE HE WAS SO ADVISED BEFORE HE WENT OUT THERE TO WORK, AND HE
WENT OUT ON HIS OWN VOLITION AND JOINED THE OTHERS TO MAKE SOME EXTRA
MONEY, THEN HE WAS NOT AN EMPLOYEE OF THE RAILROAD COMPANY AND THEY
WOULD NOT BE LIABLE." 

MR. JUSTICE FRANKFURTER WOULD DISMISS THIS WRIT OF CERTIORARI AS
IMPROVIDENTLY GRANTED.  AS THE COURT'S OPINION DEMONSTRATES, THE CASE
SOLELY PRESENTS THE APPROPRIATENESS OF INSTRUCTIONS GIVEN BY A TRIAL
COURT AND THE REFUSAL OF REQUESTED INSTRUCTIONS IN THE LIGHT OF THE
UNIQUE CIRCUMSTANCES OF A PARTICULAR SITUATION.  AS SUCH IT FALLS
OUTSIDE THE CONSIDERATIONS WHICH, ACCORDING TO RULE 19 OF THIS COURT,
GOVERN THE GRANTING OF A PETITION FOR CERTIORARI.  SEE FERGUSON V.
MOORE-MCCORMACK LINES, 352 U.S. 521, 524 (DISSENTING). 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE WHITTAKER JOINS,
DISSENTING. 

SINCE I CONSIDER THAT, EXCEPT AS TO THE ONE ISSUE SUBMITTED TO THE
JURY, THERE IS NO EVIDENCE IN THE RECORD TENDING TO ESTABLISH ANY OF
THE USUAL CRITERIA SHOWING AN EMPLOYMENT RELATIONSHIP BETWEEN THE
PETITIONER AND THE RESPONDENT IN CONNECTION WITH THIS WORK, I DISSENT. 
SEE RESTATEMENT, AGENCY 2D, SEC. 227, COMMENT A.
..END :











BURLINGTON-CHICAGO CARTAGE, INC. V. UNITED STATES 362 U.S. 401 


NO. 726.  DECIDED APRIL 18, 1960.  - 178 F. SUPP. 857, AFFIRMED. 


BURLINGTON-CHICAGO CARTAGE, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















BOGLE V. JAKES FOUNDRY CO. 362 U.S. 401 


NO. 760.  DECIDED APRIL 18, 1960 - REPORTED BELOW:  - TENN. APP. - , 329
S.W.2D 364. 


CERTIORARI GRANTED AND JUDGMENT REVERSED INSOFAR AS IT AWARDS A
PERMANENT INJUNCTION. 

BOGLE ET AL. V. JAKES FOUNDRY CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
TENNESSEE. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
REVERSED INSOFAR AS IT AWARDS A PERMANENT INJUNCTION.  TEAMSTERS,
CHAUFFEURS, HELPERS & TAXICAB DRIVERS, LOCAL UNION NO. 327 V. KERRIGAN
IRON WORKS, INC., 353 U.S. 968; SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236. 
..END :









DUSKY V. UNITED STATES 362 U.S. 402 


NO. 504, MISC.  DECIDED APRIL 18, 1960 - CERTIORARI GRANTED - 271 F.2D
385, REVERSED. 


SINCE THE RECORD IN THIS CASE DOES NOT SUFFICIENTLY SUPPORT THE
FINDINGS OF PETITIONER'S COMPETENCY TO STAND TRIAL, THE JUDGMENT
AFFIRMING HIS CONVICTION IS REVERSED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR A HEARING TO DETERMINE HIS PRESENT COMPETENCY TO
STAND TRIAL, AND FOR A NEW TRIAL IF HE IS FOUND COMPETENT.  PP. 402
403. 

DUSKY V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR A WRIT OF CERTIORARI ARE GRANTED.  UPON CONSIDERATION OF THE ENTIRE
RECORD WE AGREE WITH THE SOLICITOR GENERAL THAT "THE RECORD IN THIS
CASE DOES NOT SUFFICIENTLY SUPPORT THE FINDINGS OF COMPETENCY TO STAND
TRIAL," FOR TO SUPPORT THOSE FINDINGS UNDER 18 U.S.C. SEC. 4244 THE
DISTRICT JUDGE "WOULD NEED MORE INFORMATION THAT THIS RECORD
PRESENTS."  WE ALSO AGREE WITH THE SUGGESTION OF THE SOLICITOR GENERAL
THAT IT IS NOT ENOUGH FOR THE DISTRICT JUDGE TO FIND THAT "THE
DEFENDANT IS ORIENTED TO TIME AND PLACE AND HAS SOME RECOLLECTION OF
EVENTS," BUT THAT THE "TEST MUST BE WHETHER HE HAS SUFFICIENT PRESENT
ABILITY TO CONSULT WITH HIS LAWYER WITH A REASONABLE DEGREE OF RATIONAL
UNDERSTANDING - AND WHETHER HE HAS A RATIONAL AS WELL AS FACTUAL
UNDERSTANDING OF THE PROCEEDINGS AGAINST HIM." 

IN VIEW OF THE DOUBTS AND AMBIGUITIES REGARDING THE LEGAL
SIGNIFICANCE OF THE PSYCHIATRIC TESTIMONY IN THIS CASE AND THE
RESULTING DIFFICULTIES OF RETROSPECTIVELY DETERMINING THE PETITIONER'S
COMPETENCY AS OF MORE THAN A YEAR AGO, WE REVERSE THE JUDGMENT OF THE
COURT OF APPEALS AFFIRMING THE JUDGMENT OF CONVICTION, AND REMAND THE
CASE TO THE DISTRICT COURT FOR A NEW HEARING TO ASCERTAIN PETITIONER'S
PRESENT COMPETENCY TO STAND TRIAL, AND FOR A NEW TRIAL IF PETITIONER IS
FOUND COMPETENT.  IT IS SO ORDERED. 
..END :










IZZO V. ILLINOIS 362 U.S. 403 


NO. 772, MISC.  DECIDED APRIL 18, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


IZZO V. ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















MITCHELL V. H.B. ZACHRY CO. 362 U.S. 310 


NO. 83.  ARGUED FEBRUARY 25, 1960.  - DECIDED APRIL 4, 1960.  - 262 F.2D
546, AFFIRMED. 


EMPLOYEES OF A LARGE CONSTRUCTION CONTRACTOR ENGAGED IN CONSTRUCTING A
DAM SOLELY TO INCREASE THE RESERVOIR CAPACITY OF THE LOCAL WATER SYSTEM
OF A CITY AND ITS VICINITY, ALL WITHIN A SINGLE STATE, ARE NOT "ENGAGED
IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE" OR IN "ANY
CLOSELY RELATED PROCESS OR OCCUPATION DIRECTLY ESSENTIAL TO THE
PRODUCTION THEREOF," WITHIN THE MEANING OF SECS. 3(J) AND 7(A) OF THE
FAIR LABOR STANDARDS ACT, AS AMENDED IN 1949, THEREFORE, THEY ARE NOT
COVERED BY THE OVERTIME REQUIREMENTS OF THE ACT, EVEN THOUGH A
SUBSTANTIAL PART OF THE WATER WILL BE USED BY PRODUCERS OF GOODS FOR
INTERSTATE COMMERCE AND AN INSIGNIFICANT PART BY INTERSTATE
INSTRUMENTALITIES.  PP. 310-321. 

MITCHELL, SECRETARY OF LABOR V. H.B. ZACHRY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN WE ARE PRESENTED WITH A NICE QUESTION CONCERNING THE SCOPE
OF THE FAIR LABOR STANDARDS ACT, AS AMENDED.  63 STAT. 912, 29 U.S.C.
SEC. 207.  THE RESPONDENT, A CONSTRUCTION CONTRACTOR, WAS ENGAGED BY
THE LOWER NUECES RIVER WATER SUPPLY DISTRICT (HEREAFTER TO BE CALLED
THE DISTRICT) TO CONSTRUCT A DAM AND IMPOUNDING FACILITIES ON THE LOWER
NUECES RIVER IN TEXAS AT A COST OF ABOUT $6,000,000, IN ORDER TO
INCREASE ROUGHLY TENFOLD THE DISTRICT'S THEN-EXISTING RESERVOIR
CAPACITY.  THE DAM IS NOT A MULTI-PURPOSE PROJECT; ITS SOLE PURPOSE IS
TO CREATE AN EXTENDED RESERVOIR FOR THE DISTRICT.  THE WATER IMPOUNDED
BY THE DISTRICT IS SUPPLIED TO CONSUMERS LOCALLY, WITHIN THE STATE OF
TEXAS.  THE SITE OF THE NEW DAM WAS CHOSEN 1,400 FEET DOWNSTREAM FROM
THE OLD, WITH THE EXPECTATION THAT UPON COMPLETION OF THE NEW
CONSTRUCTION THE OLD DAM WOULD BE INUNDATED AND THUS REPLACED BY THE
GREATLY EXPANDED RESERVOIR.  IN THE INTERIM UNTIL COMPLETION, THE OLD
FACILITIES COULD SERVE TO ASSURE A CONTINUING WATER SUPPLY. 

THE DISTRICT, THOUGH FOR SOME PURPOSES AN INDEPENDENT GOVERNMENTAL
AGENCY UNDER TEXAS LAW, MAY HERE BE DEALT WITH SIMPLY AS THE WATER
SUPPLY SYSTEM OF THE INCLUDED CITY OF CORPUS CHRISTI.  ITS CONTRACT
WITH THE CITY REQUIRES IT TO SUPPLY THE CITY WITH THE ENTIRE WATER
OUTPUT; AND THE CITY IN TURN AGREES TO OPERATE AND MAINTAIN THE
COMPLETED DAM AND IMPOUNDING FACILITIES AND TO SUPPLY WATER TO
CONSUMERS WITHIN THE DISTRICT, BUT OUTSIDE CITY LIMITS.  IT IS CONCEDED
THAT BETWEEN 40% AND 50% OF ALL WATER CONSUMPTION FROM THE SYSTEM IS
ACCOUNTED FOR BY INDUSTRIAL (AS DISTINGUISHED FROM RESIDENTIAL,
COMMERCIAL, HOSPITAL, MUNICIPAL AND OTHER) USERS, MOST OF WHOM PRODUCE
GOODS FOR COMMERCE, AND THAT WATER IS ESSENTIAL TO THEIR OPERATIONS. 
NOR IS IT CONTESTED THAT AN UNSPECIFIED AMOUNT OF THE WATER SUPPLIED BY
THE DISTRICT IS CONSUMED BY FACILITIES AND INSTRUMENTALITIES OF
COMMERCE. 

IT IS AGREED THAT AS TO THE EMPLOYEES HERE INVOLVED - THOSE ACTUALLY
ENGAGED IN CONSTRUCTION WORK ON THE DAM - THE RESPONDENT FAILED TO
COMPLY WITH THE REQUIREMENTS OF SEC. 7 OF THE ACT, IF IT IS
APPLICABLE.  (FN1) 

ON THE BASIS OF ITS APPLICABILITY THE SECRETARY OF LABOR SOUGHT AN
INJUNCTION IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS.  THAT COURT GRANTED THE INJUNCTION, ON TWO GROUNDS
OF COVERAGE:  (1) SINCE WATER FROM THE SYSTEM IS SUPPLIED TO FACILITIES
AND INSTRUMENTALITIES OF COMMERCE, THOSE ENGAGED IN BUILDING THE DAM
ARE ENGAGED IN THE PRODUCTION OF GOODS - WATER - FOR COMMERCE; AND (2)
SINCE THE WATER SUPPLIED IS ESSENTIAL TO INDUSTRIES IN CORPUS CHRISTI
PRODUCING GOODS FOR COMMERCE, CONSTRUCTION OF THE DAM IS AN OCCUPATION
"CLOSELY RELATED" AND "DIRECTLY ESSENTIAL" TO THE PRODUCTION OF GOODS
FOR COMMERCE.  WHILE THE DISTRICT COURT CONCEDED "THAT CONGRESS
INTENDED TO NARROW THE SCOPE OF COVERAGE" BY THE 1949 AMENDMENT OF THE
STATUTORY DEFINITION OF "PRODUCED" IN SEC. 3(J), 63 STAT. 911, (FN2) IT
CONCLUDED THAT THIS EMPLOYMENT REMAINED WITHIN THE COVERAGE OF THE
ACT. 

ON APPEAL THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED.  262
F.2D 546.  IT DISPOSED OF THE FIRST GROUND OF THE DISTRICT COURT'S
DECISION BY HOLDING THAT THE BUILDING OF A DAM COULD NOT ITSELF
CONSTITUTE THE PRODUCTION OF GOODS FOR COMMERCE, WHATEVER THE USE TO
WHICH THE IMPOUNDED WATER MIGHT BE PUT.  IN DISPOSING OF THE SECOND, IT
INVOKED A RULE THAT "THOSE ENGAGED IN BUILDING A PLANT TO BE USED FOR
THE MANUFACTURING OF GOODS DO NOT EVEN COME WITHIN  ...  THE  ...
STATUTORY DEFINITION ...  ."  IT CONCLUDED THAT UNDER SUCH A RULE THERE
COULD BE NO COVERAGE OF EMPLOYEES ENGAGED IN CONSTRUCTION OF A FACILITY
WHICH WAS NOT TO ENGAGE IN, BUT MERELY TO SUPPORT, THE MANUFACTURE OF
GOODS FOR COMMERCE.  IT CONCLUDED FURTHER THAT THE "REMOTENESS" OF
THESE JOBS FROM PRODUCTION JUSTIFIED THEIR EXCLUSION FROM COVERAGE. 
BOTH CONCLUSIONS REFLECTED ITS GENERAL VIEW THAT "THE AMENDMENT OF 1949
MADE EVEN MORE RESTRICTIVE THE DEFINITION OF PRODUCTION OF GOODS" THAN
IT WAS UNDER THE ACT OF 1938, WHEN IT SUBSTITUTED THE WORDS "DIRECTLY
ESSENTIAL" FOR THE WORD "NECESSARY," AND ADDED THE REQUIREMENT THAT THE
EMPLOYMENT BE "CLOSELY RELATED" TO PRODUCTION. 

WE BOUGHT THE CASE HERE, 361 U.S. 807, BECAUSE OF AN ASSERTED
CONFLICT BETWEEN CIRCUITS.  (SEE CHAMBERS CONSTRUCTION CO. V. MITCHELL,
233 F.2D 717, AND MITCHELL V. CHAMBERS CONSTRUCTION CO., 214 F.2D
515.) 

THE COURT BELOW, IN APPLYING ITS RULE EXCLUDING "CONSTRUCTION,"
RELIED ON OUR PER CURIAM DECISION IN MURPHEY V. REED, 335 U.S. 865, AND
DISTINGUISHED THE MORE DETAILED DECISION IN MITCHELL V. VOLLMER & CO.,
349 U.S. 427, WHICH EXPRESSLY REJECTED THE "NEW CONSTRUCTION" RULE AND
HELD CONSTRUCTION OF A NEW LOCK ON THE GULF INTRACOASTAL WATERWAY TO BE
COVERED EMPLOYMENT.  IT DID SO BY HOLDING THAT VOLLMER CONCERNED ONLY
COVERAGE UNDER THE "IN COMMERCE" PROVISION OF THE ACT.  THE VOLLMER
DECISION CANNOT BE SO CONFINED.  IT REJECTED AN INFLEXIBLE "NEW
CONSTRUCTION" RULE, WHICH HAD DEVELOPED IN CASES UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, SEE 349 U.S., AT 429, 431-432, AS
INCONSISTENT WITH THE MORE PRAGMATIC TEST OF COVERAGE UNDER THE FAIR
LABOR STANDARDS ACT.  AS EARLY AS KIRSCHBAUM CO. V. WALLING, 316 U.S.
517, WE RECOGNIZED THAT THE PENETRATING AND ELUSIVE DUTY WHICH THIS ACT
CASTS UPON THE COURTS TO DEFINE IN PARTICULAR CASES THE LESS-THAN
CONSTITUTIONAL REACH OF ITS SCOPE, CANNOT BE ADEQUATELY DISCHARGED BY
TALISMANIC OR ABSTRACT TESTS, EMBODIED IN TAGS OR FORMULAS.  NO
EXCLUSION OF CONSTRUCTION WORK FROM COVERAGE CAN BE DERIVED FROM THE
PER CURIAM DISPOSITION OF MURPHEY V. REED, SUPRA.  THERE, AS HERE,
WHETHER CONSTRUCTION WORK IS COVERED DEPENDS UPON ALL THE CIRCUMSTANCES
OF THE RELATION OF THE PARTICULAR ACTIVITY TO "COMMERCE" IN THE
STATUTORY SENSE AND SETTING, THE QUESTION TO WHICH WE NOW TURN. 

BY CONFINING THE ACT TO EMPLOYMENT "IN COMMERCE OR IN THE PRODUCTION
OF GOODS FOR COMMERCE," CONGRESS HAS IMPLIEDLY LEFT TO THE STATES A
DOMAIN FOR REGULATION.  FOR WANT OF A PROVISION FOR AN ADMINISTRATIVE
DETERMINATION, BY AN AGENCY LIKE THE NATIONAL LABOR RELATIONS BOARD,
THE PRIMARY RESPONSIBILITY HAS BEEN VESTED IN COURTS TO APPLY, AND SO
TO GIVE CONTENT TO, THE GUIDING YET UNDEFINED AND IMPRECISE PHRASES BY
WHICH CONGRESS HAS DESIGNATED THE BOUNDARIES OF THAT DOMAIN. 

BEFORE 1949 THE BOUNDARY OF "PRODUCTION" COVERAGE WAS INDICATED BY
THE STATUTORY REQUIREMENT THAT TO BE INCLUDED AN ACTIVITY NOT "IN"
PRODUCTION MUST BE "NECESSARY" TO IT.  52 STAT.  1061.  THE INTERACTION
AND INTERDEPENDENCE OF THE PROCESSES AND FUNCTIONS OF THE INDUSTRIAL
SOCIETY WITHIN WHICH THESE DEFINITIONS MUST BE APPLIED, COULD EASILY
LEAD COURTS TO FIND FEW ACTIVITIES THAT WERE DISCERNIBLY RELATED TO
PRODUCTION NOT TO BE "NECESSARY" TO IT, IN A LOGICAL SENSE OF THAT
REQUIREMENT.  THE STATUTE, AS ILLUMINATED BY ITS HISTORY, SEE
KIRSCHBAUM CO. V. WALLING, SUPRA, AT 522, DEMANDED THAT SUCH MERELY
LOGICAL DEDUCTION BE ESCHEWED.  COURTS WERE TO BE ON THE ALERT "NOT TO
ABSORB BY ADJUDICATION ESSENTIALLY LOCAL ACTIVITIES THAT CONGRESS DID
NOT SEE FIT TO TAKE OVER BY LEGISLATION."  10 EAST 40TH ST. CO. V.
CALLUS, 325 U.S. 578, 582-583. 

IN KIRSCHBAUM CO. V. WALLING, SUPRA, WE ADDED WHAT WAS DEEMED A
COMPELLED GLOSS TO SUGGEST THE LIMITATIONS OF "NECESSARY."  WE FOUND
THAT THE JOBS OF BUILDING-MAINTENANCE EMPLOYEES, RANGING IN
RESPONSIBILITY FROM ELECTRICIAN TO PORTER, OF A LOFT BUILDING LOCALLY
OWNED BUT TENANTED BY PRODUCTION FACILITIES OF PRODUCERS FOR COMMERCE,
HAD "SUCH A CLOSE AND IMMEDIATE TIE WITH THE PROCESS OF PRODUCTION FOR
COMMERCE, AND WERE THEREFORE SO MUCH AN ESSENTIAL PART OF IT," THAT THE
EMPLOYEES' OCCUPATIONS WERE "NECESSARY" TO PRODUCTION.  IN BORDEN CO.
V. BORELLA, 325 U.S. 679, PRECISELY THE SAME FORMULATION EXPRESSED OUR
CONCLUSION THAT MAINTENANCE EMPLOYEES OF A PRODUCER-OWNED OFFICE
BUILDING WHICH WAS TENANTED IN PART BY THE PRODUCER'S CENTRAL OFFICES,
BUT NOT BY ANY PRODUCTION FACILITIES, WERE ALSO WITHIN THE ACT'S
COVERAGE.  IN 10 EAST 40TH ST. CO. V. CALLUS, 325 U.S. 578, HOWEVER,
MAINTENANCE EMPLOYEES OF AN OFFICE BUILDING WERE HELD NOT TO BE
COVERED.  ALTHOUGH THE BUILDING CONTAINED OFFICES OF SOME PRODUCERS, IT
WAS LOCALLY OWNED, HELD OUT FOR GENERAL TENANCY, AND IN FACT TENANTED
BY A MISCELLANY OF TENANTS.  REGARDFUL OF THE GOVERNING PRINCIPLE THAT
COVERAGE TURNS UPON THE NATURE OF THE EMPLOYEES' DUTIES, AND NOT UPON
THE NATURE, LOCAL OR INTERSTATE, OF THE EMPLOYER'S GENERAL BUSINESS, WE
HELD THE CASE DISTINGUISHABLE FROM BORDEN AND KIRSCHBAUM BECAUSE THE
EMPLOYMENT, SINCE PART OF AN ENTERPRISE WHICH "SPONTANEOUSLY SATISFIES
THE COMMON UNDERSTANDING OF WHAT IS LOCAL BUSINESS," WAS ITSELF
SUFFICIENTLY DIFFERENT, DESPITE IDENTICAL EMPLOYEE DUTIES, FROM PRIOR
CASES TO JUSTIFY REGARDING IT AS SEPARATE FROM THE "NECESSARY PARTS OF
A COMMERCIAL PROCESS" WHICH ARE WITHIN THE ACT.  THESE DECISIONS AND
DISTINCTIONS WERE NOT EXERCISES IN LEXICOGRAPHY.  NO NICETIES IN
PHRASING OR FORMULA OF WORDS COULD DO SERVICE FOR JUDGMENT, COULD
DISPENSE WITH PAINSTAKING APPRAISAL OF ALL THE VARIANT ELEMENTS IN THE
DIFFERENT SITUATIONS PRESENTED BY SUCCESSIVE CASES IN LIGHT OF THE
PURPOSE OF CONGRESS TO LIMIT COVERAGE SHORT OF THE EXERCISE BY IT OF
ITS FULL POWER UNDER THE COMMERCE CLAUSE. 

WHILE ATTEMPTED FORMULAS OF THE RELATIONSHIP TO PRODUCTION REQUIRED
FOR COVERAGE CANNOT FURNISH AUTOMATIC OR SPONTANEOUS ANSWERS TO
SPECIFIC PROBLEMS OF APPLICATION AS THEY ARISE IN THEIR PROTEAN
DIVERSITY, GENERAL PRINCIPLES OF THE ACT'S SCOPE AFFORD DIRECTION OF
INQUIRY BY DEFINING THE BROAD BOUNDS WITHIN WHICH DECISION MUST MOVE. 
IN KIRSCHBAUM CO. V. WALLING, SUPRA, WE FOUND THAT LIMITS ON COVERAGE
CANNOT BE UNDERSTOOD MERELY IN TERMS OF THE SOCIAL PURPOSES OF THE ACT,
IN LIGHT OF WHICH ANY LIMITATIONS MUST APPEAR INCONSISTENT.  FOR THE
ACT ALSO MANIFESTS THE COMPETING CONCERN OF CONGRESS TO AVOID UNDUE
DISPLACEMENT OF STATE REGULATION OF ACTIVITIES OF A DOMINANTLY LOCAL
CHARACTER.  ACCOMMODATION OF THESE INTERESTS WAS SOUGHT BY THE DEVICE
OF CONFINEMENT OF COVERAGE TO EMPLOYMENT IN ACTIVITIES OF TRADITIONALLY
NATIONAL CONCERN.  THE FOCUS OF COVERAGE BECAME "COMMERCE," NOT IN THE
BROADEST CONSTITUTIONAL SENSE, BUT IN THE LIMITED SENSE OF SEC. 3(B) OF
THE STATUTE:  "TRADE, COMMERCE, TRANSPORTATION, TRANSMISSION, OR
COMMUNICATION AMONG THE SEVERAL STATES ...  ."  EMPLOYMENT "IN" SUCH
ACTIVITIES IS LEAST AFFECTED BY LOCAL INTERESTS.  A STEP REMOVED FROM
EMPLOYMENT "IN COMMERCE" IS EMPLOYMENT "IN" PRODUCTION WHICH IS "FOR"
COMMERCE.  UNDER THIS CLAUSE WE HAVE SUSTAINED COVERAGE WHETHER THE
PRODUCT IS TO BE CONSUMED PRIMARILY BY COMMERCE IN THE STATUTORY SENSE,
BY ITS "FACILITIES AND INSTRUMENTALITIES," SEE ALSTATE CONSTRUCTION CO.
V. DURKIN, 345 U.S. 13, OR, AS IN THE CASE OF THE PRODUCTS OF THE
INDUSTRIAL CONSUMERS OF WATER HERE, TO MOVE IN IT.  FURTHEST REMOVED
FROM "COMMERCE" IS EMPLOYMENT NOT "IN" PRODUCTION "FOR" COMMERCE BUT IN
AN ACTIVITY WHICH IS ONLY "RELATED" TO SUCH PRODUCTION.  IN APPLYING
THIS PROVISION, WE HAVE NECESSARILY BORNE IN MIND THAT IT IS FURTHEST
REMOVED IN THE SCHEME OF THE STATUTE FROM THE HUB OF THE NATIONAL
INTEREST IN "COMMERCE" UPON WHICH A LIMITED DISPLACEMENT OF STATE POWER
IS PREDICATED. 

THE AMENDMENT OF SEC. 3(J) IN 1949 DID NOT ALTER THE BASIC STATUTORY
SCHEME OF COVERAGE, BUT DID REINFORCE THE REQUIREMENT THAT IN APPLYING
THE LAST CLAUSE OF THE SECTION ITS POSITION AT THE PERIPHERY OF
COVERAGE BE TAKEN INTO ACCOUNT AS A RELEVANT FACTOR IN THE
DETERMINATION.  IN REVISING COVERAGE CONGRESS TURNED ONLY TO THE LAST
CLAUSE OF THE SECTION, WHICH IT EVIDENTLY CONTINUED TO REGARD AS
MARKING THE OUTER LIMITS OF APPLICABILITY.  THE AMENDMENT SUBSTANTIALLY
ADOPTS THE GLOSS OF KIRSCHBAUM TO INDICATE THE SCOPE OF COVERAGE OF
ACTIVITIES ONLY "RELATED" TO PRODUCTION.  BUT EXAMINATION OF ITS
HISTORY DISCLOSES THAT IN ADOPTING THAT GLOSS THE PURPOSE OF CONGRESS
WAS NOT SIMPLY TO APPROVE EVERYTHING DONE HERE AND IN THE LOWER COURTS
IN WHAT PURPORTED TO BE SPECIFIC APPLICATIONS OF THAT INEVITABLY
ELUSIVE FORMULATION.  WHILE THE APPROACH OF KIRSCHBAUM WAS CONFIRMED,
THE CHANGE MANIFESTS THE VIEW OF CONGRESS THAT ON OCCASION COURTS,
INCLUDING THIS COURT, HAD FOUND ACTIVITIES TO BE COVERED, WHICH THE LAW
DEFINING BODY DEEMED TOO REMOTE FROM COMMERCE OR TOO INCIDENTAL TO IT. 

THE HOUSE, OVERRIDING THE CONTRARY ACTION OF ITS LABOR COMMITTEE
WHICH HAD LEFT SEC. 3(J) UNCHANGED, SEE H.R. 5856, AS REPORTED, AND
H.R. REP. NO. 267, 81ST CONG., 1ST SESS., 1949, ADOPTED AN AMENDMENT
PROPOSED BY COMMITTEE MEMBER LUCAS FROM THE FLOOR (95 CONG. REC.
11000), WHICH DID AMEND SEC. 3(J).  REPRESENTATIVE LUCAS MADE IT PLAIN
THAT IT WAS HIS PURPOSE TO CONSTRICT COVERAGE.  95 CONG. REC. 11001. 
AS PASSED BY THE HOUSE, SEC. 3(J) WAS IDENTICAL WITH THE PRESENT ACT
EXCEPT THAT FOR "DIRECTLY ESSENTIAL" THE HOUSE VERSION USED
"INDISPENSABLE."    THE SENATE SUBSTITUTED ITS OWN BILL, S. 653, FOR
THE HOUSE DRAFT, AND ITS VERSION LEFT SEC.  3(J) UNCHANGED.  THE
RESULTING CONFERENCE ADOPTED THE HOUSE BILL INSOFAR AS IT AMENDED SEC.
3(J), WITH ONLY THE CHANGE ALREADY NOTED. 

WHILE THE REPORTS PRESENTED TO THE HOUSE AND SENATE BY THEIR
RESPECTIVE CONFEREES MANIFEST SOME DISAGREEMENT AS TO DEGREE, (FN3) IT
IS APPARENT THAT SOME RESTRAINT ON COVERAGE WAS INTENDED BY BOTH.  IN
THE HOUSE, FOR EXAMPLE, KIRSCHBAUM WAS APPROVED AND OUR DECISION IN
MARTINO V. MICHIGAN WINDOW CLEANING CO., 327 U.S. 173, WAS DISAPPROVED
(H.R. CONF. REP. NO. 1453, 81ST CONG., 1ST SESS., P. 15); WHILE THE
SENATE CONFEREES, WITH DIFFERENT EMPHASIS, NOTED ONLY THAT THE STANDARD
APPLIED IN "MOST" OF OUR DECISIONS WAS ADOPTED.  95 CONG. REC. 14874. 

BOTH REPORTS USE AS ILLUSTRATIONS OF COVERAGE WHICH REMAINS UNCHANGED
BY THE AMENDMENT, EMPLOYMENT IN UTILITIES SUPPLYING WATER TO THE
PRODUCERS OF GOODS FOR COMMERCE.  H.R. CONF.  REP. NO. 1453, P. 14; 95
CONG. REC. 14875.  BUT NO ILLUSTRATION IN EITHER STATEMENT DEALS WITH
CONSTRUCTION OF A DAM DESIGNED SOLELY FOR USE AS AN IMPOUNDING FACILITY
FOR A LOCAL WATER DISTRIBUTION SYSTEM.  THE HOUSE REPORT DOES EXPRESSLY
STATE THAT THE CASE OF SCHROEDER CO. V. CLIFTON, 153 F.2D 385 (C.A.
10TH CIR.), IS AN INSTANCE OF AN ACTIVITY NOT WITHIN THE AMENDED ACT. 
BUT THE ACTIVITY THERE INVOLVED WAS ONE IN SUPPORT OF CONSTRUCTION OF A
DAM; IT WAS NOT THE CONSTRUCTION OF THE DAM ITSELF.  THUS, EVEN WERE WE
TO ACCEPT THE ILLUSTRATIONS IN THE HOUSE REPORT AS AUTHORITATIVE, WE
WOULD NOT BE RELIEVED OF THE DUTY OF DECIDING WHERE BETWEEN THESE
BOUNDARIES OF APPROVAL AND DISAPPROVAL THE PRESENT FACTS LIE.  TO DO SO
REQUIRES THAT WE ONCE AGAIN APPLY THE FORMULATION SET DOWN IN
KIRSCHBAUM, WHICH, IN LIGHT OF THE 1949 AMENDMENT, WE MUST DO WITH
RENEWED AWARENESS OF THE PURPOSE OF CONGRESS TO AVOID INTRUSION INTO
WITHDRAWN LOCAL ACTIVITIES. 

TO ESTABLISH COVERAGE THE SECRETARY RELIES UPON FARMERS RESERVOIR &
IRRIGATION CO. V. MCCOMB, 337 U.S. 755, WHICH, HE ASSERTS, ESTABLISHES
THAT EMPLOYEES ARE COVERED WHO ARE ENGAGED NOT MERELY IN OPERATION OF,
BUT IN MAINTENANCE AND REPAIR OF THE FACILITIES OF A COMPANY
DISTRIBUTING WATER FOR CONSUMPTION BY PRODUCERS FOR COMMERCE.  (FN4)
HE URGES THAT ONCE IT IS RECOGNIZED - AS THE COURT BELOW FAILED TO DO -
THAT CONSTRUCTION WORK IS NOT EXCLUDED FROM THE ACT'S COVERAGE, THIS
CONCEDEDLY ESSENTIAL EXPANSION OF FACILITIES IS NOT DISTINGUISHABLE
FROM MAINTENANCE AND REPAIR IN ANY CHARACTERISTIC MADE RELEVANT BY THE
STANDARD OF "CLOSELY RELATED" AND "DIRECTLY ESSENTIAL" TO PRODUCTION. 
WE DO NOT AGREE. 

ASSUMING ARGUENDO THAT MAINTENANCE AND REPAIR OF THE COMPLETED DAM
WOULD BE COVERED EMPLOYMENT, IT DOES NOT FOLLOW THAT CONSTRUCTION OF
THE DAM THEREFORE IS.  THE ACTIVITIES ARE UNDOUBTEDLY EQUALLY "DIRECTLY
ESSENTIAL" TO THE PRODUCERS OF GOODS WHO DEPEND UPON THE WATER SUPPLY;
BUT THEY ARE NOT EQUALLY REMOTE FROM PRODUCTION OR FROM THE "COMMERCE"
FOR WHICH PRODUCTION IS INTENDED.  THE DISTINCTION BETWEEN MAINTENANCE
AND REPAIR ON THE ONE HAND, AND REPLACEMENT OR NEW CONSTRUCTION ON THE
OTHER, MAY OFTEN BE DIFFICULT TO DELINEATE BUT IS A PRACTICAL
DISTINCTION TO WHICH LAW MUST NOT BE INDIFFERENT.  ITS RELEVANCE HERE,
WHERE OUR PURPOSE MUST BE TO ISOLATE PRIMARILY LOCAL ACTIVITIES FROM
THE FLOW OF COMMERCE TO WHICH THEY INVARIABLY RELATE, LIES IN THE CLOSE
RELATION OF MAINTENANCE AND REPAIR TO OPERATION, AS OPPOSED TO
REPLACEMENT OR NEW CONSTRUCTION WHICH IS A SEPARATE UNDERTAKING
NECESSARILY PRIOR TO OPERATION AND THEREFORE MORE REMOTE FROM THE END
RESULT OF THE PROCESS.  AS WE HELD IN VOLLMER, THAT AN ACTIVITY IS
RIGHTLY CALLED CONSTRUCTION AND IS THEREFORE DISTINCT FROM OPERATION,
DOES NOT PER SE REMOVE IT FROM COVERAGE.  CONSTRUCTION MAY BE
SUFFICIENTLY "CLOSELY RELATED" TO PRODUCTION TO PLACE IT IN THAT
PROXIMITY TO "COMMERCE" WHICH THE ACT DEMANDS AS A PREDICATE TO
COVERAGE.  HERE, HOWEVER, NEITHER A FACILITY OF "COMMERCE" NOR A
FACILITY OF "PRODUCTION" IS UNDER CONSTRUCTION.  OPERATION OF THE
COMPLETED DAM WILL MERELY SUPPORT PRODUCTION FACILITIES; AND
CONSTRUCTION OF THE DAM IS YET ANOTHER STEP MORE REMOTE. 

THE SECRETARY RELIES UPON MITCHELL V. LUBLIN, MCGAUGHY & ASSOCIATES,
358 U.S. 207, AND MITCHELL V. VOLLMER & CO., SUPRA, TO ESTABLISH THAT
THIS CONSTRUCTION IS CLOSELY ENOUGH RELATED TO "PRODUCTION OF GOODS FOR
COMMERCE" TO BE WITHIN THE COVERAGE OF THE ACT.  IN EACH OF THOSE CASES
A CONSTRUCTION ACTIVITY WAS FOUND "DIRECTLY AND VITALLY RELATED" TO
"COMMERCE" AND THEREFORE "IN COMMERCE," AND WHAT WE HAVE ALREADY SAID
DEMONSTRATES THAT THEY ARE NOT USEFUL GUIDES HERE.  AS LUBLIN, SUPRA,
MANIFESTS, AN ACTIVITY SUFFICIENTLY "DIRECTLY RELATED" TO COMMERCE TO
BE "IN" IT IS, AT MOST, NO FURTHER REMOVED FROM "COMMERCE" THAN IS THE
EMPLOYMENT "IN PRODUCTION" ITSELF WHICH THE ACT EXPRESSLY COVERS. 
COMPARE MITCHELL V. LUBLIN, MCGAUGHY & ASSOCIATES, SUPRA, WITH ALSTATE
CONSTRUCTION CO. V. DURKIN, 345 U.S. 13.  FOR THIS REASON, ALTHOUGH THE
ACT HAS NEVER CONTAINED EVEN A GENERAL DEFINITION OF THE RELATIONSHIP
OF AN ACTIVITY TO COMMERCE NECESSARY TO JUSTIFY ITS INCLUSION, SUCH A
RELATIONSHIP HAS BEEN EXTRAPOLATED BY THE COURTS IN CONFORMITY WITH THE
STATUTORY SCHEME, SO AS TO DISPLACE STATE REGULATION "THROUGHOUT THE
FARTHEST REACHES OF THE CHANNELS OF INTERSTATE COMMERCE."  WALLING V.
JACKSONVILLE PAPER CO., 317 U.S. 564, 567.  NO INDEPENDENT VITALITY
ATTACHES TO CONCLUSORY PHRASES SUCH AS "DIRECTLY" OR "VITALLY
RELATED."  WHAT IS FINALLY CONTROLLING EACH CASE IS THE RELATIONSHIP OF
THE EMPLOYMENT TO "COMMERCE," IN THE SENSE OF THE STATUTE, AND IT NEEDS
NO ARGUMENT THAT AS TO THAT RELATIONSHIP THIS CASE IS SIGNIFICANTLY
DIFFERENT FROM LUBLIN OR VOLLMER. 

MOREOVER, THOUGH CONSTRUCTION AND OPERATION OF THIS DAM ARE EQUALLY
"DIRECTLY ESSENTIAL" TO THE PRODUCERS WHO REQUIRE THE WATER IMPOUNDED
AND DISTRIBUTED, NEITHER THE CONSTRUCTION NOR THE OPERATION OF THE DAM
IS DESIGNED FOR THEIR USE.  WATER IS SUPPLIED BY THE DISTRICT TO A
MISCELLANY OF USERS THROUGHOUT ITS GEOGRAPHICAL AREA, AND SOMEWHAT LESS
THAN HALF OF THE CONSUMPTION IS BY PRODUCERS.  THESE FACILITIES AND
THEIR CONSTRUCTION, ARE THUS TO BE DIFFERENTIATED FROM THE IRRIGATION
SYSTEM IN THE FARMERS RESERVOIR CASE, WHICH WAS DEDICATED EXCLUSIVELY
TO SUPPLY WATER TO FARMERS PRODUCING FOR COMMERCE. 

THESE ARE NO DOUBT MATTERS OF THE NICEST DEGREE.  THEY ARE INEVITABLY
SO IN THE SCHEME AND MODE OF ENFORCEMENT OF THIS STATUTE.  BEARING IN
MIND THE CAUTIONARY REVISION IN 1949, AND THAT THE FOCAL CENTER OF
COVERAGE IS "COMMERCE," THE COMBINATION OF THE REMOTENESS OF THIS
CONSTRUCTION FROM PRODUCTION, AND THE ABSENCE OF A DEDICATION OF THE
COMPLETED FACILITIES EITHER EXCLUSIVELY OR PRIMARILY TO PRODUCTION,
PERSUADES US THAT THE ACTIVITY IS NOT "CLOSELY RELATED" OR "DIRECTLY
ESSENTIAL" TO PRODUCTION FOR COMMERCE." 

THE SECRETARY ALTERNATIVELY URGES THAT BECAUSE SOME OF THE WATER
SUPPLIED BY THE DISTRICT IS CONSUMED BY FACILITIES AND
INSTRUMENTALITIES OF COMMERCE, THE WATER SHOULD BE REGARDED AS "GOODS"
PRODUCED "FOR COMMERCE" AND THE CONSTRUCTION OF THE DAM SHOULD BE FOUND
SUFFICIENTLY RELATED TO SUCH PRODUCTION TO BE WITHIN THE ACT'S
COVERAGE.  HE RELIES ON ALSTATE CONSTRUCTION CO. V. DURKIN, SUPRA, AND
COMPARES THE WATER HERE TO THE CONSTRUCTION MATERIALS THERE PRODUCED
PRIMARILY FOR USE IN ROAD CONSTRUCTION.  IT IS A SUFFICIENT ANSWER TO
THIS CONTENTION THAT THE RECORD IS DEVOID OF EVIDENCE OF A PURPOSEFUL
AND SUBSTANTIAL DEDICATION OF OTHERWISE LOCAL PRODUCTION TO CONSUMPTION
BY "COMMERCE" WHICH WAS THE BASIS OF OUR DECISION IN ALSTATE.  INDEED,
IT APPEARS THAT THE WATER SUPPLIED TO THE FACILITIES AND
INSTRUMENTALITIES OF COMMERCE IS BUT AN INSIGNIFICANT PORTION OF THE
TOTAL.  AFFIRMED. 

FN1  WITH EXCEPTIONS NOT RELEVANT HERE, SEC. 7, THE HOURS PROVISION,
DIRECTS AN EMPLOYER TO COMPLY WITH ITS PROVISIONS AS TO "ANY OF HIS
EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE  ...  ." 

FN2  ONLY THE LAST CLAUSE OF SEC. 3(J) WAS AMENDED IN 1949.  BEFORE
THE AMENDMENT IT WAS PROVIDED THAT "AN EMPLOYEE SHALL BE DEEMED TO HAVE
BEEN ENGAGED IN THE PRODUCTION OF GOODS IF SUCH EMPLOYEE WAS EMPLOYED
IN PRODUCING, MANUFACTURING, MINING, HANDLING, TRANSPORTING, OR IN ANY
OTHER MANNER WORKING ON SUCH GOODS, OR IN ANY PROCESS OR OCCUPATION
NECESSARY TO THE PRODUCTION THEREOF, IN ANY STATE."  52 STAT. 1061. 
THE AMENDED LAST CLAUSE PROVIDES:  "OR IN ANY CLOSELY RELATED PROCESS
OR OCCUPATION DIRECTLY ESSENTIAL TO THE PRODUCTION THEREOF, IN ANY
STATE."  63 STAT. 911. 

FN3  THE VIEWS OF A MINORITY OF THE SENATE CONFEREES EMPHASIZE THE
APPARENT INCONSISTENCIES BETWEEN THE REPORTS DELIVERED TO THE HOUSE AND
SENATE.  95 CONG. REC. 14880. 

FN4  THE SECRETARY SIMILARLY RELIES ON THE APPROVAL IN GENERAL TERMS
OF SUCH COVERAGE IN THE REPORTS OF THE HOUSE AND SENATE CONFEREES. 
H.R. CONF. REP. NO. 1453, 81ST CONG., 1ST SESS., P. 14; 95 CONG. REC.
14875. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

THE OPINION OF THE COURT IS MORE CONSISTENT WITH THE DISSENT IN
MITCHELL V. VOLLMER & CO., 349 U.S. 427, IN WHICH MY BROTHER
FRANKFURTER JOINED, THAN IT IS WITH THE COURT'S OPINION IN THAT CASE. 
THE LIBERAL CONSTRUCTION GIVEN THE ACT FROM KIRSCHBAUM CO. V. WALLING,
316 U.S. 517, TO ALSTATE CONSTRUCTION CO. V. DURKIN, 345 U.S. 13, AND
DOWN TO AND INCLUDING THE VOLLMER CASE IS NOW FORSAKEN.   YET THIS
SEEMS TO ME TO BE A SINGULARLY INAPPROPRIATE OCCASION TO CHANGE THE
DIRECTION OF THE LAW IN A MERE MATTER OF STATUTORY CONSTRUCTION. 

THE REPORT OF THE SENATE CONFEREES (95 CONG. REC. 14874-14875) WHICH
USHERED SEC. 3(J) INTO THE LAW IN ITS PRESENT FORM (FN1) SAID: 

"THE WORK OF EMPLOYEES OF EMPLOYERS WHO PRODUCE OR SUPPLY GOODS OR
FACILITIES FOR CUSTOMERS ENGAGED WITHIN THE SAME STATE IN THE
PRODUCTION OF OTHER GOODS FOR INTERSTATE COMMERCE MAY ALSO BE COVERED
AS CLOSELY RELATED AND DIRECTED ESSENTIAL TO SUCH PRODUCTION.  THIS
WOULD BE TRUE, FOR EXAMPLE, OF EMPLOYEES ENGAGED IN THE FOLLOWING
ACTIVITIES: 

     *         *         *         *         * 

"2.  PRODUCING AND SUPPLYING FUEL, POWER, WATER, OR OTHER GOODS FOR
CUSTOMERS USING SUCH GOODS IN THE PRODUCTION OF DIFFERENT GOODS FOR
INTERSTATE COMMERCE.  REYNOLDS V. SALT RIVER VALLEY WATER USERS ASSO. 
(143 F.(2D) 863 (C.A. 9)); PHILLIPS V. MEEKER COOP.  LIGHT AND POWER
ASSO.  (158 F.(2D) 698 (C.A. 8)); LEWIS V. FLORIDA LIGHT AND POWER CO.
(154 F.(2D) 751 (C.A. 5)); WEST KENTUCKY COAL CO. V. WALLING (153
F.(2D) 152 (C.A. 6))." 

THE DAM HERE UNDER CONSTRUCTION WAS TO FURNISH THE CITY OF CORPUS
CHRISTI WITH A WATER SUPPLY - A CITY WATER SYSTEM THAT SERVICES
RAILROADS, TRUCK COMPANIES, AIRLINES, OTHER INSTRUMENTALITIES OF
INTERSTATE COMMERCE AND VARIOUS PRODUCERS OF GOODS FOR COMMERCE.  IT IS
CONCEDED THAT THE MAJOR INDUSTRIES IN THIS AREA PRODUCE GOODS FOR
COMMERCE AND USE A SUBSTANTIAL AMOUNT OF WATER IN THAT CONNECTION. 
INDEED, 40% TO 50% OF ALL WATER FURNISHED BY THE CITY IS USED
INDUSTRIALLY. 

REYNOLDS V. SALT RIVER VALLEY WATER USERS ASSN., 143 F.2D 863 (C.A.
9TH CIR.), HELD THAT REPAIR AND MAINTENANCE EMPLOYEES OF CANALS AND
DAMS OF AN IRRIGATION COMPANY SUPPLYING WATER FOR GROWERS OF CROPS
INTENDED FOR SHIPMENT IN INTERSTATE COMMERCE WERE ENGAGED IN AN
OCCUPATION NECESSARY FOR THE PRODUCTION OF GOODS FOR COMMERCE. 

WEST KENTUCKY COAL CO. V. WALLING, 153 F.2D 582 (C.A. 6TH CIR.), HELD
THAT MEN PRODUCING COAL SOLD TO FACTORIES PRODUCING GOODS FOR COMMERCE
WERE COVERED BY THE ACT. 

MEEKER COOPERATIVE LIGHT & POWER ASSN. V. PHILLIPS, 158 F.2D 698
(C.A. 8TH CIR.), HELD THAT EMPLOYEES OF A POWER COOPERATIVE
DISTRIBUTING ELECTRICITY TO COMPANIES THAT PRODUCED GOODS FOR COMMERCE
WERE COVERED BY THE ACT. 

THESE THREE DECISIONS, AS NOTED, WERE APPROVED BY THE SENATE REPORT
DEFINING THE SCOPE OF SEC. 3(J).  CERTAINLY THEN, EMPLOYEES MAINTAINING
THIS NEW DAM WOULD BE COVERED BY THE ACT, AS OUR OWN DECISION IN
FARMERS IRRIGATION CO. V. MCCOMB, 337 U.S. 755, INDICATES. 

HOW THEN, IF THESE PRECEDENTS ARE TO BE FOLLOWED, CAN EMPLOYEES WHO
BUILT THE DAM BE OUT OF REACH OF THE ACT? 

WE HELD IN MITCHELL V. VOLLMER & CO., SUPRA, THAT CONSTRUCTION OF A
LOCK TO BE USED IN COMMERCE WAS WORK "IN COMMERCE."  "THE TEST IS
WHETHER THE WORK IS SO DIRECTLY AND VITALLY RELATED TO THE FUNCTIONING
OF AN INSTRUMENTALITY OR FACILITY OF INTERSTATE COMMERCE AS TO BE, IN
PRACTICAL EFFECT, A PART OF IT, RATHER THAN ISOLATED, LOCAL ACTIVITY." 
P. 429.  THERE IS NO MORE REMOTENESS HERE THAN THERE.  IT IS DIFFICULT
TO UNDERSTAND WHY A STRINGENT TEST OF REMOTENESS IS USED IN DETERMINING
WHETHER CONSTRUCTION WORK IS RELATED TO "PRODUCTION OF GOODS FOR
COMMERCE" WHEN A LIBERAL TEST WAS APPLIED IN THE VOLLMER CASE IN
HOLDING THAT SUCH WORK WAS "IN COMMERCE."  SEE ARMOUR & CO. V. WANTOCK,
323 U.S. 126, 131. 

PRIOR TO THE 1949 AMENDMENTS THE STANDARD IN SEC. 3(J) WAS WHETHER
THE WORK WAS IN ANY "PROCESS OR OCCUPATION NECESSARY" FOR THE
PRODUCTION OF GOODS FOR COMMERCE.  THE PRESENT STANDARD, SO FAR AS
MATERIAL HERE, IS WHETHER THE WORK IS "IN ANY CLOSELY RELATED PROCESS
OR OCCUPATION DIRECTLY ESSENTIAL TO THE PRODUCTION" OF GOODS FOR
COMMERCE.  (FN2)  THE SENATE REPORT SAID THAT EMPLOYEES "REPAIRING,
MAINTAINING, IMPROVING OR ENLARGING  ...  FACILITIES OF PRODUCERS OF
GOODS" WERE COVERED.  95 CONG. REC. 14875.  THIS GROUP, THE REPORT
STATED, WERE INCLUDED BECAUSE THEY WERE "PERFORMING TASKS NECESSARY TO
EFFECTIVE PRODUCTIVE OPERATIONS OF THE PRODUCER."  95 CONG. REC.
14874. 

MOST OF THE DECISIONS CITED IN THE REPORT WHICH ARE DESCRIPTIVE OF
THIS CATEGORY OF EMPLOYEES WERE CASES WHERE THE EMPLOYEES WERE WORKING
ON EXISTING STRUCTURES OR APPLIANCES USED BY PRODUCERS OF GOODS FOR
COMMERCE, (FN3) WHETHER OR NOT THOSE FACILITIES WERE OWNED BY THE
PRODUCERS.  SUCH IS THE CASE OF BORDEN CO. V. BORELLA, 325 U.S. 679. 
BUT ONE OF THE CASES CITED BY THE REPORT AS ALSO DESCRIPTIVE OF THIS
GROUP OF EMPLOYEES WAS WALLING V. MCCRADY CONSTRUCTION CO., 156 F.2D
932 (C.A. 3D CIR.), WHICH BROUGHT WITHIN THE ACT'S COVERAGE WORKERS
BUILDING ROADS AND BRIDGES TO BE USED TO TRANSPORT GOODS IN PROCESS OF
PRODUCTION FOR INTERSTATE COMMERCE.  THESE FACILITIES, LIKE THE ONE IN
THE PRESENT CASE, WERE NOT OWNED BY THE PRODUCERS, NOR WERE SOME OF
THEM YET IN EXISTENCE.  BUT WHEN COMPLETED THEY WOULD SERVE AS
FACILITIES FOR THOSE WHO WERE PRODUCING GOODS FOR COMMERCE.  THAT CASE
CLEARLY SUGGESTS THAT THE CONGRESS IN REDEFINING THE SCOPE OF SEC. 3(J)
WAS FOLLOWING THE BROAD CONTOURS OF THE COVERAGE WHICH HAD BEEN
DELINEATED BY THE CONSTRUCTION CASES, AS WELL AS BY THE MAINTENANCE
CASES. 

IT SEEMS AS IF THERE COULD BE NO DOUBT THAT THE PRESENT CASE IS
BROUGHT SQUARELY WITHIN THAT CATEGORY, FOR THIS PROJECT WAS NOT THE
CONSTRUCTION OF A WHOLLY NEW WATER SYSTEM BUT AN IMPROVEMENT OF AN
EXISTING WATER SYSTEM.  MOREOVER, THE WATER SYSTEM BEING IMPROVED WOULD
SEEM TO BE AS MUCH A FACILITY OF THOSE PRODUCING GOODS FOR COMMERCE AS
WAS THE HIGHWAY IN THE MCCRADY CASE.  MOREOVER, IN ALSTATE CONSTRUCTION
CO. V. DURKIN, SUPRA, A COMPANY, MAKING PRODUCTS SOLD INTRASTATE BUT
USED TO IMPROVE THE FACILITIES OF THOSE PRODUCING GOODS FOR COMMERCE,
WAS HELD TO BE EMPLOYING WORKERS COVERED BY THE ACT.  THE WORK IN
IMPROVING THE PRESENT FACILITY USED BY PRODUCERS OF GOODS FOR COMMERCE
IS AT LEAST AS CLOSE TO THE PROCESS OF PRODUCTION AS THE LABOR OF THE
MEN IN THE ALSTATE CASE. 

SO IT IS THAT I BELIEVE TODAY'S DECISION CHANGES THE SYMMETRY OF THE
JUDICIAL RULINGS UNDER THE ACT, NARROWS ITS SCOPE, AND IMPAIRS ITS
EFFECTIVENESS.  TODAY'S RULING IS A DEPARTURE FROM THE ACCEPTED
CONSTRUCTION.  BY THIS RETREAT I FEAR WE INVITE HOSTILE CONSTRUCTIONS
THAT WILL UNDERMINE THE BROAD BASE WHICH CONGRESS GAVE THE ACT.  IF
THERE IS TO BE A CHANGE IN THE DIRECTION OF THE LAW OR AN ALTERATION IN
ITS EMPHASIS, IT SHOULD BE DONE BY CONGRESS WHICH IS FAR BETTER SUITED
THAN WE TO MARK THE FARTHEST AREAS WHICH THE LIBERAL POLICIES OF THE
ACT WERE DESIGNED TO COVER.  I REGRET THAT TODAY WE GIVE UP TERRITORY
THAT CONGRESS HAS FAIRLY CLAIMED, THAT WE TAKE A BACKWARD STEP FROM THE
MEASURES CONGRESS DESIGNED TO PROTECT THE LOWEST PAID AND WEAKEST GROUP
OF WAGE EARNERS IN THE NATION. 

FN1  SECTION 3(J) PROVIDES: 

"'PRODUCED' MEANS PRODUCED, MANUFACTURED, MINED, HANDLED, OR IN ANY
OTHER MANNER WORKED ON IN ANY STATE; AND FOR THE PURPOSES OF THIS ACT
AN EMPLOYEE SHALL BE DEEMED TO HAVE BEEN ENGAGED IN THE PRODUCTION OF
GOODS IF SUCH EMPLOYEE WAS EMPLOYED IN PRODUCING, MANUFACTURING,
MINING, HANDLING, TRANSPORTING, OR IN ANY OTHER MANNER WORKING ON SUCH
GOODS, OR IN ANY CLOSELY RELATED PROCESS OR OCCUPATION DIRECTLY
ESSENTIAL TO THE PRODUCTION THEREOF, IN ANY STATE." 

FN2  SEE NOTE 1, SUPRA. 

FN3  AND SEE ROLAND ELECTRICAL CO. V. WALLING, 326 U.S. 657, ALSO
CITED WITH APPROVAL IN THE REPORT.  95 CONG. REC. 14875. 
..END :










UNION PACIFIC RAILROAD CO. V. UNITED STATES 362 U.S. 327 


NO. 98.  ARGUED MARCH 23, 1960 - DECIDED APRIL 4, 1960 - 173 F. SUPP.
397, AFFIRMED. 


IN ORDER TO AFFORD SHIPPERS ADDITIONAL TIME TO FIND A MARKET FOR
LUMBER WHILE IN TRANSIT, APPELLANT RAILROAD RENDERS A 14-DAY DELAYED
LUMBER SERVICE OVER A ROUTE ORDINARILY REQUIRING FROM TWO TO FOUR
DAYS.  IN DOING SO, IT INCURS ADDITIONAL OPERATIONAL PROBLEMS AND COSTS
NOT PRESENT IN ITS FAST FREIGHT SERVICE AND NOT INCLUDED IN ITS
PUBLISHED TARIFF.  HELD:  SUCH DELAYED SERVICE CONSTITUTES THE
FURNISHING OF ADDITIONAL "PRIVILEGES OR FACILITIES," WITHIN THE MEANING
OF SEC. 6(7) OF THE INTERSTATE COMMERCE ACT, AND MUST BE PUBLISHED AND
FILED IN APPELLANT'S TARIFF.  PP. 327-328. 

UNION PACIFIC RAILROAD CO. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF IOWA. 

PER CURIAM. 

APPELLANT, ALONG WITH OTHER RAILROADS, HAS FOR YEARS ENGAGED IN THE
"ROLLER LUMBER TRAFFIC" BY PERFORMING INTENTIONALLY DELAYED SERVICE IN
THE TRANSPORTATION OF LUMBER FROM THE WEST COAST TO MARKET.  SIX ROADS
SO ENGAGED HAVE FILED TARIFFS COVERING SUCH SERVICES AT THE SAME RATE
AS THEIR FAST FREIGHT, AND THE INTERSTATE COMMERCE COMMISSION NOW HAS
SUCH TARRIFFS UNDER INVESTIGATION AND CONSIDERATION.  APPELLANT,
HOWEVER, HAS REFUSED TO FILE A TARIFF COVERING SUCH SERVICE BUT
CONTINUES TO HANDLE ROLLER LUMBER TRAFFIC ON THE SAME TARIFF AS ITS
FAST FREIGHT. 

THE UNITED STATES, AT THE INSTANCE OF THE INTERSTATE COMMERCE
COMMISSION, SOUGHT AND OBTAINED A PERMANENT INJUNCTION RESTRAINING
APPELLANT FROM PERFORMING ITS ROLLER LUMBER TRAFFIC SERVICE UNTIL IT
PUBLISHES AND FILES A TARIFF COVERING THE SAME.  THE DISTRICT COURT
FOUND THAT APPELLANT RENDERS A 14-DAY DELAYED LUMBER SERVICE OVER A
ROUTE ORDINARILY REQUIRING FROM TWO TO FOUR DAYS.  THE DELAY IS
ACCOMPLISHED BY THE HOLDING OF CARS ON SIDINGS AT CERTAIN POINTS ON ITS
TRUNK LINES AWAITING DIVERSION ORDERS TO MOVE THE SHIPMENT FORWARD OVER
THE RAILROAD'S REGULAR SERVICE.  THIS AFFORDS THE SHIPPER ADDITIONAL
TIME TO FIND A MARKET FOR THE LUMBER WHILE IT IS IN TRANSIT.  THIS
SERVICE, THE DISTRICT COURT FOUND, INCURRED ADDITIONAL "OPERATIONAL
PROBLEMS AND COSTS" FOR APPELLANT, INCLUDING SWITCHING, SIDING, STORAGE
AND "PER DIEM COST FOR THE USE OF FOREIGN CARS" NOT PRESENT IN ITS FAST
FREIGHT SERVICE AND NOT INCLUDED IN ITS PUBLISHED TARIFF.  WE AGREE
WITH THE DISTRICT COURT THAT SUCH DELAYED SERVICE CONSTITUTES THE
FURNISHING OF ADDITIONAL "PRIVILEGES OR FACILITIES" UNDER SEC. 6(7) OF
THE INTERSTATE COMMERCE ACT, AND, THEREFORE, MUST BE PUBLISHED AND
FILED IN ITS TARIFF.  49 U.S.C. SEC. 6(1).  SEE TURNER LUMBER CO. V.
CHICAGO, M.& ST. P.R. CO., 271 U.S. 259, 262 (1926). 

IF AND WHEN APPELLANT PUBLISHES AND FILES SUCH A TARIFF, AS OTHER
ROADS HAVE ALREADY DONE, THE COMMISSION CAN THEN CONSIDER THE
REASONABLENESS AND JUSTNESS OF APPELLANT'S SERVICE IN THE LIGHT OF THAT
RATE, GIVING DUE REGARD TO ANY UNJUST OR UNREASONABLE PREFERENCES OR
ADVANTAGES THAT MIGHT RESULT TO SHIPPERS OR OTHER ROADS SHOULD THE SAME
NOT BE APPROVED.  AFFIRMED. 
..END :















UNITED RUBBER, CORK, LINOLEUM & PLASTIC WORKERS OF AMERICA, AFL-CIO V.
NATIONAL LABOR RELATIONS BOARD 362 U.S. 329 


NO. 316.  DECIDED APRIL 4, 1960 - CERTIORARI GRANTED AND JUDGMENT
REVERSED - REPORTED BELOW: 269 F.2D 694. 


UNITED RUBBER, CORK, LINOLEUM & PLASTIC WORKERS OF AMERICA, AFL-CIO, ET
AL. V. NATIONAL LABOR RELATIONS BOARD. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT IS REVERSED. 
NATIONAL LABOR RELATIONS BOARD V. DRIVERS, CHAUFFEURS, HELPERS, LOCAL
UNION NO. 639, ANTE, P. 274. 
..END :












ABEL, ALIAS MARK, ALIAS COLLINS, ALIAS GOLDFUS V. UNITED STATES 362 U.S.
217 


NO. 2.  ARGUED FEBRUARY 24-25, 1959 - RESTORED TO THE CALENDAR FOR
REARGUMENT MARCH 23, 1959 - REARGUED NOVEMBER 9, 1959 - DECIDED MARCH
28, 1960 - 258 F.2D 485, AFFIRMED. 


IMMIGRATION AND NATURALIZATION SERVICE OFFICERS ARRESTED PETITIONER ON
AN ADMINISTRATIVE WARRANT FOR DEPORTATION, SEARCHED THE HOTEL ROOM
WHERE HE WAS ARRESTED, HIS PERSON AND HIS LUGGAGE, AND SEIZED CERTAIN
ARTICLES.  AFTER PETITIONER HAD CHECKED OUT OF HIS HOTEL ROOM, AN AGENT
OF THE FEDERAL BUREAU OF INVESTIGATION MADE A FURTHER SEARCH OF THE
ROOM, WITHOUT A WARRANT BUT WITH THE CONSENT OF THE HOTEL MANAGEMENT,
AND SEIZED CERTAIN ARTICLES WHICH PETITIONER HAD LEFT THERE.  THE
ARTICLES SO SEIZED WERE ADMITTED IN EVIDENCE OVER PETITIONER'S
OBJECTION AT HIS TRIAL FOR CONSPIRACY TO COMMIT ESPIONAGE, AND HE WAS
CONVICTED.  HELD:  THESE SEARCHES AND SEIZURES DID NOT VIOLATE THE
FOURTH OR FIFTH AMENDMENT, AND THE USE IN EVIDENCE OF ARTICLES SO
SEIZED DID NOT INVALIDATE PETITIONER'S CONVICTION.  PP. 218-241. 

1.  ON THE RECORD IN THIS CASE, THE GOVERNMENT DID NOT USE THE
ADMINISTRATIVE WARRANT OF THE IMMIGRATION AND NATURALIZATION SERVICE AS
AN IMPROPER INSTRUMENT OF THE FEDERAL BUREAU OF INVESTIGATION IN
OBTAINING EVIDENCE FOR A CRIMINAL PROSECUTION.  PP. 225-230. 

2.  PETITIONER'S CLAIM THAT THE ADMINISTRATIVE WARRANT UNDER WHICH HE
WAS FIRST ARRESTED WAS INVALID UNDER THE FOURTH AMENDMENT IS NOT
PROPERLY BEFORE THIS COURT, SINCE IT WAS NOT MADE BELOW AND WAS
EXPRESSLY DISAVOWED THERE.  PP. 230-234. 

3.  THE ARTICLES SEIZED BY THE IMMIGRATION OFFICERS DURING THE
SEARCHES HERE INVOLVED WERE PROPERLY ADMITTED IN EVIDENCE.  PP. 234
240. 

4.  IMMIGRATION OFFICERS WHO EFFECT AN ARREST FOR DEPORTATION ON AN
ADMINISTRATIVE WARRANT HAVE A RIGHT OF INCIDENTAL SEARCH ANALOGOUS TO
THE SEARCH PERMITTED CRIMINAL LAW-ENFORCEMENT OFFICERS INCIDENTAL TO A
LAWFUL ARREST.  PP. 235-237. 

5.  THE SEARCH OF THE HOTEL ROOM BY AN F.B.I. AGENT WITHOUT A WARRANT
BUT WITH THE CONSENT OF THE HOTEL MANAGEMENT, AFTER PETITIONER HAD
RELINQUISHED THE ROOM, AND THE SEIZURE OF ARTICLES WHICH PETITIONER HAD
ABANDONED THERE WERE LAWFUL, AND SUCH ARTICLES WERE PROPERLY ADMITTED
IN EVIDENCE.  PP. 240-241. 

ABEL, ALIAS MARK, ALIAS COLLINS, ALIAS GOLDFUS, V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER SEVEN ITEMS WERE PROPERLY
ADMITTED INTO EVIDENCE AT THE PETITIONER'S TRIAL FOR CONSPIRACY TO
COMMIT ESPIONAGE.  ALL SEVEN ITEMS WERE SEIZED BY OFFICERS OF THE
GOVERNMENT WITHOUT A SEARCH WARRANT.  THE SEIZURES DID NOT OCCUR IN
CONNECTION WITH THE EXERTION OF THE CRIMINAL PROCESS AGAINST
PETITIONER.  THEY AROSE OUT OF HIS ADMINISTRATIVE ARREST BY THE UNITED
STATES IMMIGRATION AND NATURALIZATION SERVICE AS A PRELIMINARY TO HIS
DEPORTATION.  A MOTION TO SUPPRESS THESE ITEMS AS EVIDENCE, DULY MADE
IN THE DISTRICT COURT, WAS DENIED AFTER A FULL HEARING.  155 F. SUPP.
8.  PETITIONER WAS TRIED, CONVICTED AND SENTENCED TO THIRTY YEARS'
IMPRISONMENT AND TO THE PAYMENT OF A FINE OF $3,000.  THE COURT OF
APPEALS AFFIRMED, 258 F.2D 485.  WE GRANTED CERTIORARI, 358 U.S. 813,
LIMITING THE GRANT TO THE FOLLOWING TWO QUESTIONS: 

"1.  WHETHER THE FOURTH AND FIFTH AMENDMENTS TO THE CONSTITUTION OF
THE UNITED STATES ARE VIOLATED BY A SEARCH AND THE SEIZURE OF EVIDENCE
WITHOUT A SEARCH WARRANT, AFTER AN ALIEN SUSPECTED AND OFFICIALLY
ACCUSED OF ESPIONAGE HAS BEEN TAKEN INTO CUSTODY FOR DEPORTATION,
PURSUANT TO AN ADMINISTRATIVE IMMIGRATION SERVICE WARRANT, BUT HAS NOT
BEEN ARRESTED FOR THE COMMISSION OF A CRIME? 

"2.  WHETHER THE FOURTH AND FIFTH AMENDMENTS TO THE CONSTITUTION OF
THE UNITED STATES ARE VIOLATED WHEN ARTICLES SO SEIZED ARE UNRELATED TO
THE IMMIGRATION SERVICE WARRANT AND, TOGETHER WITH OTHER ARTICLES
OBTAINED FROM SUCH LEADS, ARE INTRODUCED AS EVIDENCE IN A PROSECUTION
FOR ESPIONAGE?" 

ARGUMENT WAS FIRST HEARD AT OCTOBER TERM, 1958.  THE CASE HAVING BEEN
SET DOWN FOR REARGUMENT AT THIS TERM, 359 U.S. 940, COUNSEL WERE ASKED
TO DISCUSS A SERIES OF ADDITIONAL QUESTIONS, SET OUT IN THE MARGIN.* 

*"1.  WHETHER UNDER THE LAWS AND CONSTITUTION OF THE UNITED STATES
(A) THE ADMINISTRATIVE WARRANT OF THE NEW YORK ACTING DISTRICT DIRECTOR
OF THE IMMIGRATION AND NATURALIZATION SERVICE WAS VALIDLY ISSUED, (B)
SUCH ADMINISTRATIVE WARRANT CONSTITUTED A VALID BASIS FOR ARRESTING
PETITONER OR TAKING HIM INTO CUSTODY, AND (C) SUCH WARRANT FURNISHED A
VALID BASIS FOR THE SEARCH AND SEIZURES AFFECTING HIS PERSON, LUGGAGE,
AND THE ROOM OCCUPIED BY HIM AT THE HOTEL LATHAM. 

"2.  WHETHER, INDEPENDENTLY OF SUCH ADMINISTRATIVE WARRANT,
PETITONER'S ARREST, AND THE SEARCHES AND SEIZURES AFFECTING HIS PERSON,
LUGGAGE, AND THE ROOM OCCUPIED BY HIM AT THE HOTEL LATHAM, WERE VALID
UNDER THE LAWS AND CONSTITUTION OF THE UNITED STATES. 

"3.  WHETHER ON THE RECORD BEFORE US THE ISSUES INVOLVED IN QUESTIONS
'1(A),' '1(B),' AND '2' ARE PROPERLY BEFORE THE COURT." 

WE HAVE CONSIDERED THE CASE ON THE ASSUMPTION THAT THE CONVICTION
MUST BE REVERSED SHOULD WE FIND CHALLENGED ITEMS OF EVIDENCE TO HAVE
BEEN SEIZED IN VIOLATION OF THE CONSTITUTION AND THEREFORE IMPROPERLY
ADMITTED INTO EVIDENCE.  WE FIND, HOWEVER, THAT THE ADMISSION OF THESE
ITEMS WAS FREE FROM ANY INFIRMITY AND WE AFFIRM THE JUDGMENT.  (OF
COURSE THE NATURE OF THE CASE, THE FACT THAT IT WAS A PROSECUTION FOR
ESPIONAGE, HAS NO BEARING WHATEVER UPON THE LEGAL CONSIDERATIONS
RELEVANT TO THE ADMISSIBILITY OF EVIDENCE.) 

THE SEVEN ITEMS, ALL IN PETITIONER'S POSSESSION AT THE TIME OF HIS
ADMINISTRATIVE ARREST, THE ADMISSIBILITY OF WHICH IS IN QUESTION, WERE
THE FOLLOWING: 

(1) A PIECE OF GRAPH PAPER, CARRYING GROUPS OF NUMBERS ARRANGED IN
ROWS, ALLEGEDLY A CODED MESSAGE: 

(2)  A FORGED BIRTH CERTIFICATE, CERTIFYING THE BIRTH OF "MARTIN
COLLINS" IN NEW YORK COUNTY IN 1897: 

(3)  A BIRTH CERTIFICATE, CERTIFYING THE BIRTH OF "EMIL GOLDFUS" IN
NEW YORK IN 1902 (EMIL GOLDFUS DIED IN 1903): 

(4)  AN INTERNATIONAL CERTIFICATE OF VACCINATION, ISSUED IN NEW YORK
TO "MARTIN COLLINS" IN 1957: 

(5)  A BANK BOOK OF THE EAST RIVER SAVINGS BANK CONTAINING THE
ACCOUNT OF "EMIL GOLDFUS": 

(6)  A HOLLOWED-OUT PENCIL CONTAINING 18 MICRO-FILMS; AND: 

(7)  A BLOCK OF WOOD, WRAPPED IN SANDPAPER, AND CONTAINING WITHIN IT
A SMALL BOOKLET WITH A SERIES OF NUMBERS ON EACH PAGE, A SO-CALLED
"CIPHER PAD." 

ITEMS (2),(3),(4), AND (5) WERE RELEVANT TO THE ISSUES OF THE
INDICTMENT FOR WHICH PETITIONER WAS ON TRIAL IN THAT THEY CORROBORATED
PETITIONER'S USE OF FALSE IDENTITIES.  ITEMS (1),(6) AND (7) WERE
INCRIMINATORY AS USEFUL MEANS FOR ONE ENGAGED IN ESPIONAGE. 

THE MAIN CLAIMS WHICH PETITIONER PRESSED UPON THE COURT MAY BE THUS
SUMMARIZED:  (1) THE ADMINISTRATIVE ARREST WAS USED BY THE GOVERNMENT
IN BAD FAITH; (2) ADMINISTRATIVE ARRESTS AS PRELIMINARIES TO
DEPORTATION ARE UNCONSTITUTIONAL; AND (3) REGARDLESS OF THE VALIDITY OF
THE ADMINISTRATIVE ARREST HERE, THE SEARCHES AND SEIZURES THROUGH WHICH
THE CHALLENGED ITEMS CAME INTO THE GOVERNMENT'S POSSESSION WERE NOT
LAWFUL ANCILLARIES TO SUCH AN ARREST.  THESE CLAIMS CANNOT BE JUDGED
APART FROM THE CIRCUMSTANCES LEADING UP TO THE ARREST AND THE NATURE OF
THE SEARCHES AND SEIZURES.  IT BECOMES NECESSARY TO RELATE THESE
MATTERS IN CONSIDERABLE DETAIL. 

PETITIONER WAS ARRESTED BY OFFICERS OF THE IMMIGRATION AND
NATURALIZATION SERVICE (HEREAFTER ABBREVIATED AS I.N.S.)  ON JUNE 21,
1957, IN A SINGLE ROOM IN THE HOTEL LATHAM IN NEW YORK CITY, HIS THEN
ABODE.  THE ATTENTION OF THE I.N.S. HAD FIRST BEEN DRAWN TO PETITIONER
SEVERAL DAYS EARLIER WHEN NOTO, A DEPUTY ASSISTANT COMMISSIONER OF THE
I.N.S., WAS TOLD BY A LIAISON OFFICER OF THE FEDERAL BUREAU OF
INVESTIGATION (HEREAFTER ABBREVIATED AS F.B.I.)  THAT PETITIONER WAS
BELIEVED BY THE F.B.I. TO BE AN ALIEN RESIDING ILLEGALLY IN THE UNITED
STATES.  NOTO WAS TOLD OF THE F.B.I.'S INTEREST IN PETITIONER IN
CONNECTION WITH ESPIONAGE. 

AN UNCONTESTED AFFIDAVIT BEFORE THE DISTRICT COURT ASSERTED THE
FOLLOWING WITH REGARD TO THE EVENTS LEADING UP TO THE F.B.I.'S
COMMUNICATION WITH NOTO ABOUT PETITIONER.  ABOUT ONE MONTH BEFORE THE
F.B.I. COMMUNICATED WITH NOTO, PETITIONER HAD BEEN MENTIONED BY
HAYHANEN, A RECENTLY DEFECTED RUSSIAN SPY, AS ONE WITH WHOM HAYHANEN
HAD FOR SEVERAL YEARS COOPERATED IN ATTEMPTING TO COMMIT ESPIONAGE. 
THE F.B.I. HAD THEREUPON PLACED PETITIONER UNDER INVESTIGATION.  AT THE
TIME THE F.B.I. COMMUNICATED WITH THE I.N.S. REGARDING PETITIONER, THE
CASE AGAINST HIM RESTED CHIEFLY UPON HAYHANEN'S STORY, AND HAYHANEN,
ALTHOUGH HE WAS LATER TO BE THE GOVERNMENT'S PRINCIPAL WITNESS AT THE
TRIAL, AT THAT TIME INSISTED THAT HE WOULD REFUSE TO TESTIFY SHOULD
PETITIONER BE BROUGHT TO TRIAL, ALTHOUGH HE WOULD FULLY COOPERATE WITH
THE GOVERNMENT IN SECRET.  THE DEPARTMENT OF JUSTICE CONCLUDED THAT
WITHOUT HAYHANEN'S TESTIMONY THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY
PETITIONER'S ARREST AND INDICTMENT ON ESPIONAGE CHARGES.  THE DECISION
WAS THEREUPON MADE TO BRING PETITIONER TO THE ATTENTION OF THE I.N.S.,
WITH A VIEW TO COMMENCING DEPORTATION PROCEEDINGS AGAINST HIM. 

UPON BEING NOTIFIED OF THE F.B.I.'S BELIEF THAT PETITIONER WAS
RESIDING ILLEGALLY IN THIS COUNTRY, NOTO ASKED THE F.B.I. TO SUPPLY THE
I.N.S. WITH FURTHER INFORMATION REGARDING PETITIONER'S STATUS AS AN
ALIEN.  THE F.B.I. DID THIS WITHIN A WEEK.  THE I.N.S. CONCLUDED THAT
IF PETITIONER WERE, AS SUSPECTED, AN ALIEN, HE WOULD BE SUBJECT TO
DEPORTATION IN THAT HE HAD FAILED TO COMPLY WITH THE LEGAL DUTY OF
ALIENS TO NOTIFY THE ATTORNEY GENERAL EVERY JANUARY OF THEIR ADDRESS IN
THE UNITED STATES.  8 U.S.C. SEC. 1305.  NOTO THEN DETERMINED ON
PETITIONER'S ADMINISTRATIVE ARREST AS A PRELIMINARY TO HIS
DEPORTATION.  THE F.B.I. WAS SO INFORMED.  ON JUNE 20, TWO I.N.S.
OFFICERS, SCHOENENBERGER AND KANZLER, WERE DISPACTCHED BY NOTO TO NEW
YORK TO SUPERVISE THE ARREST.  THESE OFFICERS CARRIED WITH THEM A
WARRANT FOR PETITIONER'S ARREST AND AN ORDER ADDRESSED TO PETITIONER
DIRECTING HIM TO SHOW CAUSE WHY HE SHOULD NOT BE DEPORTED.  THEY MET IN
NEW WITH THE DISTRICT DIRECTOR OF THE I.N.S. WHO, AFTER THE INFORMATION
IN THE POSSESSION OF THE I.N.S.  REGARDING PETITIONER WAS PUT BEFORE
HIM, SIGNED THE WARRANT AND THE ORDER.  FOLLOWING THIS, SCHOENENBERGER
AND KANZLER WENT TO F.B.I. HEADQUARTERS IN NEW YORK WHERE, BY
PREARRANGEMENT WITH THE F.B.I. IN WASHINGTON, THEY WERE MET BY SEVERAL
F.B.I. OFFICERS.  THESE AGREED TO CONDUCT AGENTS OF THE I.N.S. TO
PETITIONER'S HOTEL SO THAT THE I.N.S. MIGHT ACCOMPLISH HIS ARREST.  THE
F.B.I. OFFICER IN CHARGE ASKED WHETHER, BEFORE THE PETITIONER WAS
ARRESTED, THE F.B.I. MIGHT "INTERVIEW" HIM IN AN ATTEMPT TO PERSUADE
HIM TO "COOPERATE" WITH REGARD TO HIS ESPIONAGE.  TO THIS
SCHOENENBERGER AGREED. 

AT 7 O'CLOCK THE NEXT MORNING, JUNE 21, TWO OFFICERS OF THE I.N.S.
AND SEVERAL F.B.I.  MEN GATHERED IN THE CORRIDOR OUTSIDE PETITIONER'S
ROOM AT THE HOTEL LATHAM.  ALL BUT TWO F.B.I. AGENTS, GAMBER AND
BLASCO, WENT INTO THE ROOM NEXT TO PETITIONER'S, WHICH THE F.B.I.  HAD
OCCUPIED IN THE COURSE OF ITS INVESTIGATION OF PETITIONER.  GAMBER AND
BLASCO WERE CHARGED WITH CONFRONTING PETITIONER AND SOLICITING HIS
COOPERATION WITH THE F.B.I.  THEY HAD NO WARRANT EITHER TO ARREST OR TO
SEARCH.  IF PETITIONER PROVED COOPERATIVE THEIR INSTRUCTIONS WERE TO
TELEPHONE TO THEIR SUPERIOR FOR FURTHER INSTRUCTIONS.  IF PETITIONER
FAILED TO COOPERATE THEY WERE TO SUMMON THE WAITING I.N.S. AGENTS TO
EXECUTE THEIR WARRANT FOR HIS ARREST. 

GAMBER RAPPED ON PETITIONER'S DOOR.  WHEN PETITIONER RELEASED THE
CATCH, GAMBER PUSHED OPEN THE DOOR AND WALKED INTO THE ROOM, FOLLOWED
BY BLASCO.  THE DOOR WAS LEFT AJAR AND A THIRD F.B.I. AGENT CAME INTO
THE ROOM A FEW MINUTES LATER.  PETITIONER, WHO WAS NUDE, WAS TOLD TO
PUT ON A PAIR OF UNDERSHORTS AND TO SIT ON THE BED, WHICH HE DID.  THE
F.B.I.  AGENTS REMAINED IN THE ROOM QUESTIONING PETITIONER FOR ABOUT
TWENTY MINUTES.  ALTHOUGH PETITIONER ANSWERED SOME OF THEIR QUESTIONS,
HE DID NOT "COOPERATE" REGARDING HIS ALLEGED ESPIONAGE.  A SIGNAL WAS
THERE UPON GIVEN TO THE TWO AGENTS OF THE I.N.S. WAITING IN THE NEXT
ROOM.  THESE CAME INTO PETITIONER'S ROOM AND SERVED PETITIONER WITH THE
WARRANT FOR HIS ARREST AND WITH THE ORDER TO SHOW CAUSE.  SHORTLY
THEREAFTER SCHOENENBERGER AND KANZLER, WHO HAD BEEN WAITING OUTSIDE THE
HOTEL, ALSO ENTERED PETITIONER'S ROOM.  THESE FOUR AGENTS OF THE I.N.S.
REMAINED WITH PETITIONER IN HIS ROOM FOR ABOUT AN HOUR.  FOR PART OF
THIS TIME AN F.B.I. AGENT WAS ALSO IN THE ROOM AND DURING ALL OF IT
ANOTHER F.B.I.  AGENT STOOD OUTSIDE THE OPEN DOOR OF THE ROOM, WHERE HE
COULD OBSERVE THE INTERIOR. 

AFTER PLACING PETITIONER UNDER ARREST, THE FOUR I.N.S. AGENTS
UNDERTOOK A SEARCH OF HIS PERSON AND OF ALL OF HIS BELONGINGS IN THE
ROOM, AND THE ADJOINING BATHROOM, WHICH LASTED FOR FROM FIFTEEN TO
TWENTY MINUTES.  PETITIONER DID NOT GIVE CONSENT TO THIS SEARCH; HIS
CONSENT WAS NOT SOUGHT.  THE F.B.I. AGENTS OBSERVED THIS SEARCH BUT
TOOK NO PART IN IT.  IT WAS SCHOENENBERGER'S TESTIMONY TO THE DISTRICT
COURT THAT THE PURPOSE OF THIS SEARCH WAS TO DISCOVER WEAPONS AND
DOCUMENTARY EVIDENCE OF PETITIONER'S "ALIENAGE" - THAT IS, DOCUMENTS TO
SUBSTANTIATE THE INFORMATION REGARDING PETITIONER'S STATUS AS AN ALIEN
WHICH THE I.N.S. HAD RECEIVED FROM THE F.B.I.  DURING THIS SEARCH ONE
OF THE CHALLENGED ITEMS OF EVIDENCE, THE ONE WE HAVE DESIGNATED (2), A
BIRTH CERTIFICATE FOR "MARTIN COLLINS," WAS SEIZED.  WEAPONS WERE NOT
FOUND, NOR WAS ANY OTHER EVIDENCE REGARDING PETITIONER'S "ALIENAGE." 

WHEN THE SEARCH WAS COMPLETED, PETITIONER WAS TOLD TO DRESS HIMSELF,
TO ASSEMBLE HIS THINGS AND TO CHOOSE WHAT HE WISHED TO TAKE WITH HIM. 
WITH THE HELP OF THE I.N.S. AGENTS ALMOST EVERYTHING IN THE ROOM WAS
PACKED INTO PETITIONER'S BAGGAGE.  A FEW THINGS PETITIONER DELIBERATELY
LEFT ON A WINDOW SILL, INDICATING THAT HE DID NOT WANT TO TAKE THEM,
AND SEVERAL OTHER THINGS WHICH HE CHOSE NOT TO PACK UP INTO HIS LUGGAGE
HE PUT INTO THE ROOM'S WASTEPAPER BASKET.  WHEN EVERYTHING HAD BEEN
ASSEMBLED, PETITIONER ASKED AND RECEIVED PERMISSION TO REPACK ONE OF
HIS SUITCASES.  WHILE PETITIONER WAS DOING SO, SCHOENENBERGER NOTICED
HIM SLIPPING SOME PAPERS INTO THE SLEEVE OF HIS COAT.  SCHOENENBERGER
SEIZED THESE.  ONE OF THEM WAS THE CHALLENGED ITEM OF EVIDENCE WHICH WE
HAVE DESIGNATED (1), A PIECE OF GRAPH PAPER CONTAINING A CODED
MESSAGE. 

WHEN PETITIONER'S BELONGINGS HAD BEEN COMPLETELY PACKED, PETITIONER
AGREED TO CHECK OUT OF THE HOTEL.  ONE OF THE F.B.I. AGENTS OBTAINED
HIS BILL FROM THE HOTEL AND PETITIONER PAID IT. PETITIONER WAS THEN
HANDCUFFED AND TAKEN, ALONG WITH HIS BAGGAGE, TO A WAITING AUTOMOBILE
AND THENCE TO THE HEADQUARTERS OF THE I.N.S. IN NEW YORK.  AT I.N.S.
HEADQUARTERS, THE PROPERTY PETITIONER HAD TAKEN WITH HIM WAS SEARCHED
MORE THOROUGHLY THAN IT HAD BEEN IN HIS HOTEL ROOM, AND THREE MORE OF
THE CHALLENGED ITEMS WERE DISCOVERED AND SEIZED.  THESE WERE THE ONES
WE HAVE DESIGNATED (3),(4) AND (5), THE "EMIL GOLDFUS" BIRTH
CERTIFICATE, THE INTERNATIONAL VACCINATION CERTIFICATE, AND THE BANK
BOOK. 

AS SOON AS PETITIONER HAD BEEN TAKEN FROM THE HOTEL, AN F.B.I. AGENT,
KEHOE, WHO HAD BEEN IN THE ROOM ADJOINING PETITIONER'S DURING THE
ARREST AND SEARCH AND WHO, LIKE THE I.N.S. AGENTS, HAD NO SEARCH
WARRANT, RECEIVED PERMISSION FROM THE HOTEL MANAGEMENT TO SEARCH THE
ROOM JUST VACATED BY PETITIONER.  ALTHOUGH THE BILL WHICH PETITIONER
HAD PAID ENTITLED HIM TO OCCUPY THE ROOM UNTIL 3 P.M. OF THAT DAY, THE
HOTEL'S PRACTICE WAS TO CONSIDER A ROOM VACATED WHENEVER A GUEST
REMOVED HIS BAGGAGE AND TURNED IN HIS KEY.  KEHOE CONDUCTED A SEARCH OF
PETITIONER'S ROOM WHICH LASTED FOR ABOUT THREE HOURS.  AMONG OTHER
THINGS, HE SEIZED THE CONTENTS OF THE WASTEPAPER BASKET INTO WHICH
PETITIONER HAD PUT SOME THINGS WHILE PACKING HIS BELONGINGS.  TWO OF
THE ITEMS THUS SEIZED WERE THE CHALLENGED ITEMS OF EVIDENCE WE HAVE
DESIGNATED (6) AND (7):  A HOLLOW PENCIL CONTAINING MICROFILM AND A
BLOCK OF WOOD CONTAINING A "CIPHER PAD."    LATER IN THE DAY OF HIS
ARREST, PETITIONER WAS TAKEN BY AIRPLANE TO A DETENTION CENTER FOR
ALIENS IN TEXAS.  HE REMAINED THERE FOR SEVERAL WEEKS UNTIL ARRESTED
UPON THE CHARGE OF CONSPIRACY TO COMMIT ESPIONAGE FOR WHICH HE WAS
BROUGHT TO TRIAL AND CONVICTED IN THE EASTERN DISTRICT OF NEW YORK. 

                   I. 

THE UNDERLYING BASIS OF PETITIONER'S ATTACK UPON THE ADMISSIBILITY OF
THE CHALLENGED ITEMS OF EVIDENCE CONCERNS THE MOTIVE OF THE GOVERNMENT
IN ITS USE OF THE ADMINISTRATIVE ARREST.  WE ARE ASKED TO FIND THAT THE
GOVERNMENT RESORTED TO A SUBTERFUGE, THAT THE IMMIGRATION AND
NATURALIZATION SERVICE WARRANT HERE WAS A PRETENSE AND SHAM, WAS NOT
WHAT IT PURPORTED TO BE.  ACCORDING TO PETITIONER, IT WAS NOT THE
GOVERNMENT'S TRUE PURPOSE IN ARRESTING HIM UNDER THIS WARRANT TO TAKE
HIM INTO CUSTODY PENDING A DETERMINATION OF HIS DEPORTABILITY.  THE
GOVERNMENT'S REAL AIMS, THE ARGUMENT RUNS, WERE (1) TO PLACE PETITIONER
IN CUSTODY SO THAT PRESSURE MIGHT BE BROUGHT TO BEAR UPON HIM TO
CONFESS HIS ESPIONAGE AND COOPERATE WITH THE F.B.I., AND (2) TO PERMIT
THE GOVERNMENT TO SEARCH THROUGH HIS BELONGINGS FOR EVIDENCE OF HIS
ESPIONAGE TO BE USED IN A DESIGNED CRIMINAL PROSECUTION AGAINST HIM. 
THIS CLAIM IS, IN SHORT, THAT THE GOVERNMENT USED THIS ADMINISTRATIVE
WARRANT FOR ENTIRELY ILLEGITIMATE PURPOSES AND THAT ARTICLES SEIZED AS
A CONSEQUENCE OF ITS USE OUGHT TO HAVE BEEN SUPPRESSED. 

WERE THIS CLAIM JUSTIFIED BY THE RECORD, IT WOULD INDEED REVEAL A
SERIOUS MISCONDUCT BY LAW-ENFORCING OFFICERS.  THE DELIBERATE USE BY
THE GOVERNMENT OF AN ADMINISTRATIVE WARRANT FOR THE PURPOSE OF
GATHERING EVIDENCE IN A CRIMINAL CASE MUST MEET STERN RESISTANCE BY THE
COURTS.  THE PRELIMINARY STAGES OF A CRIMINAL PROSECUTION MUST BE
PURSUED IN STRICT OBEDIENCE TO THE SAFEGUARDS AND RESTRICTIONS OF THE
CONSTITUTION AND LAWS OF THE UNITED STATES.  A FINDING OF BAD FAITH IS,
HOWEVER, NOT OPEN TO US ON THIS RECORD.  WHAT THE MOTIVE WAS OF THE
I.N.S. OFFICIALS WHO DETERMINED TO ARREST PETITIONER, AND WHETHER THE
I.N.S. IN DOING SO WAS NOT EXERCISING ITS POWERS IN THE LAWFUL
DISCHARGE OF ITS OWN RESPONSIBILITIES BUT WAS SERVING AS A TOOL FOR THE
F.B.I. IN BUILDING A CRIMINAL PROSECUTION AGAINST PETITIONER, WERE
ISSUES FULLY CANVASSED IN BOTH COURTS BELOW.  THE CRUCIAL FACTS WERE
FOUND AGAINST THE PETITIONER. 

ON THIS PHASE OF THE CASE THE DISTRICT JUDGE, HAVING PERMITTED FULL
SCOPE TO THE ELUCIDATION OF THE PETITIONER'S CLAIM, HAVING SEEN AND
HEARD WITNESSES, IN ADDITION TO TESTIMONY BY WAY OF AFFIDAVITS, AND
AFTER EXTENSIVE ARGUMENT, MADE THESE FINDINGS: 

"THE EVIDENCE IS PERSUASIVE THAT THE ACTION TAKEN BY THE OFFICIALS OF
THE IMMIGRATION AND NATURALIZATION SERVICE IS FOUND TO HAVE BEEN IN
ENTIRE GOOD FAITH.  THE TESTIMONY OF SCHOENENBERGER AND NOTO LEAVES NO
DOUBT THAT WHILE THE FIRST INFORMATION THAT CAME TO THEM CONCERNING THE
F.B.I. - WHICH CANNOT BE AN UNUSUAL HAPPENING - THE PROCEEDINGS TAKEN
BY THE DEPARTMENT DIFFERED IN NO RESPECT FROM WHAT WOULD HAVE BEEN DONE
IN THE CASE OF AN INDIVIDUAL CONCERNING WHOM NO SUCH INFORMATION WAS
KNOWN TO EXIST. 

"THE DEFENDANT ARGUES THAT THE TESTIMONY ESTABLISHES THAT THE ARREST
WAS MADE UNDER THE DIRECTION AND SUPERVISION OF THE F.B.I., BUT THE
EVIDENCE IS TO THE CONTRARY, AND IT IS SO FOUND. 

"NO GOOD REASON HAS BEEN SUGGESTED WHY THESE TWO BRANCHES OF THE
DEPARTMENT OF JUSTICE SHOULD NOT COOPERATE, AND THAT IS THE EXTENT OF
THE SHOWING MADE ON THE PART OF THE DEFENDANT."  155 F. SUPP. 8, 11. 

THE OPINION OF THE COURT OF APPEALS, AFTER CAREFUL CONSIDERATION OF
THE MATTER, HELD THAT THE ANSWER "MUST CLEARLY BE IN THE AFFIRMATIVE"
TO THE QUESTION "WHETHER THE EVIDENCE IN THE RECORD SUPPORTS THE
FINDING OF GOOD FAITH MADE BY THE COURT BELOW."  258 F.2D 485, 494. 

AMONG THE STATEMENTS IN EVIDENCE RELIED UPON BY THE LOWER COURTS IN
MAKING THESE FINDINGS WAS TESTIMONY BY NOTO THAT THE INTEREST OF THE
I.N.S. IN PETITIONER WAS CONFINED TO PETITIONER'S ILLEGAL STATUS IN THE
UNITED STATES; THAT IN INFORMING THE I.N.S. ABOUT PETITIONER'S PRESENCE
IN THE UNITED STATES THE F.B.I. DID NOT INDICATE WHAT ACTION IT WANTED
THE I.N.S. TO TAKE; THAT NOTO HIMSELF MADE THE DECISION TO ARREST
PETITIONER AND TO COMMENCE DEPORTATION PROCEEDINGS AGAINST HIM; THAT
THE F.B.I. MADE NO REQUEST OF HIM TO SEARCH FOR EVIDENCE OF ESPIONAGE
AT THE TIME OF THE ARREST; AND THAT IT WAS "USUAL AND MANDATORY" FOR
THE F.B.I. AND I.N.S. TO WORK TOGETHER IN THE MANNER THEY DID.   THERE
WAS ALSO THE TESTIMONY OF SCHOENENBERGER, REGARDING THE PURPOSE OF THE
SEARCH HE MADE OF PETITIONER'S BELONGINGS, THAT THE MOTIVE WAS TO LOOK
FOR WEAPONS AND DOCUMENTARY EVIDENCE OF ALIENAGE.  TO BE SURE, THE
RECORD IS NOT BARREN OF EVIDENCE SUPPORTING AN INFERENCE OPPOSED TO THE
CONCLUSION TO WHICH THE TWO LOWER COURTS WERE LED BY THE RECORD AS A
WHOLE:  FOR EXAMPLE, THE FACTS THAT THE I.N.S. HELD OFF ITS ARREST OF
PETITIONER WHILE THE F.B.I. SOLICITED HIS COOPERATION, AND THAT THE
F.B.I. HELD ITSELF READY TO SEARCH PETITIONER'S ROOM AS SOON AS IT WAS
VACATED.  THESE ELEMENTS, HOWEVER, DID NOT, AND WERE NOT REQUIRED TO,
PERSUADE THE TWO COURTS BELOW IN THE FACE OF AMPLE EVIDENCE OF GOOD
FAITH TO THE CONTRARY, ESPECIALLY THE HUMAN EVIDENCE OF THOSE INVOLVED
IN THE EPISODE.  WE ARE NOT FREE TO OVERTURN THE CONCLUSION OF THE
COURTS BELOW WHEN JUSTIFIED BY SUCH SOLID PROOF. 

PETITIONER'S BASIC CONTENTION COMES DOWN TO THIS:  EVEN WITHOUT A
SHOWING OF BAD FAITH, THE F.B.I. AND I.N.S. MUST BE HELD TO HAVE
COOPERATED TO AN IMPERMISSIBLE EXTENT IN THIS CASE, THE CASE BEING ONE
WHERE THE ALIEN ARRESTED BY THE I.N.S. FOR DEPORTATION WAS ALSO
SUSPECTED BY THE F.B.I. OF CRIME.  AT THE WORST, IT MAY BE SAID THAT
THE CIRCUMSTANCES OF THIS CASE REVEAL AN OPPORTUNITY FOR ABUSE OF THE
ADMINISTRATIVE ARREST.  BUT TO HOLD ILLEGITIMATE, IN THE ABSENCE OF BAD
FAITH, THE COOPERATION BETWEEN I.N.S. AND F.B.I.  WOULD BE TO IGNORE
THE SCOPE OF RIGHTFUL COOPERATION BETWEEN TWO BRANCHES OF A SINGLE
DEPARTMENT OF JUSTICE CONCERNED WITH ENFORCEMENT OF DIFFERENT AREAS OF
LAW UNDER THE COMMON AUTHORITY OF THE ATTORNEY GENERAL. 

THE FACTS ARE THAT THE F.B.I. SUSPECTED PETITIONER BOTH OF ESPIONAGE
AND ILLEGAL RESIDENCE IN THE UNITED STATES AS AN ALIEN.  THAT AGENCY
SURELY ACTED NOT ONLY WITH PROPRIETY BUT IN DISCHARGE OF ITS DUTY IN
BRINGING PETITIONER'S ILLEGAL STATUS TO THE ATTENTION OF THE I.N.S.,
PARTICULARLY AFTER IT FOUND ITSELF UNABLE TO PROCEED WITH PETITIONER'S
PROSECUTION FOR ESPIONAGE.  ONLY THE I.N.S. IS AUTHORIZED TO INITIATE
DEPORTATION PROCEEDINGS, AND CERTAINLY THE F.B.I. IS NOT TO BE REQUIRED
TO REMAIN MUTE REGARDING ONE THEY HAVE REASON TO BELIEVE TO BE A
DEPORTABLE ALIEN, MERELY BECAUSE HE IS ALSO SUSPECTED OF ONE OF THE
GRAVEST OF CRIMES AND THE F.B.I. ENTERTAINS THE HOPE THAT CRIMINAL
PROCEEDINGS MAY EVENTUALLY BE BROUGHT AGAINST HIM.  THE I.N.S., JUST AS
CERTAINLY, WOULD NOT HAVE PERFORMED ITS RESPONSIBILITIES HAD IT BEEN
DETERRED FROM INSTITUTING DEPORTATION PROCEEDINGS SOLELY BECAUSE IT
BECAME AWARE OF PETITIONER THROUGH THE F.B.I., AND HAD KNOWLEDGE THAT
THE F.B.I. SUSPECTED PETITIONER OF ESPIONAGE.  THE GOVERNMENT HAS
AVAILABLE TWO WAYS OF DEALING WITH A CRIMINALLY SUSPECT DEPORTABLE
ALIEN.  IT WOULD MAKE NO SENSE TO SAY THAT BRANCHES OF THE DEPARTMENT
OF JUSTICE MAY NOT COOPERATE IN PURSUING ONE COURSE OF ACTION OR THE
OTHER, ONCE IT IS HONESTLY DECIDED WHAT COURSE IS TO BE PERFORMED.  FOR
THE SAME REASONS THIS COOPERATION MAY PROPERLY EXTEND TO THE EXTENT AND
IN THE MANNER IN WHICH THE F.B.I. AND I.N.S. COOPERATED IN EFFECTING
PETITONER'S ADMINISTRATIVE ARREST.  NOR DOES IT TAINT THE
ADMINISTRATIVE ARREST THAT THE F.B.I. SOLICITED PETITIONER'S
COOPERATION BEFORE IT TOOK PLACE, STOOD BY WHILE IT DID, AND SEARCHED
THE VACATED ROOM AFTER THE ARREST.  THE F.B.I. WAS NOT BARRED FROM
CONTINUING ITS INVESTIGATION IN THE HOPE THAT IT MIGHT RESULT IN A
PROSECUTION FOR ESPIONAGE BECAUSE THE I.N.S., IN THE DISCHARGE OF ITS
DUTIES, HAD EMBARKED UPON AN INDEPENDENT DECISION TO INITIATE
PROCEEDINGS FOR DEPORTATION. 

THE CONSTITUTION DOES NOT REQUIRE THAT HONEST LAW ENFORCEMENT SHOULD
BE PUT TO SUCH AN IRREVOCABLE CHOICE BETWEEN TWO RECOURSES OF THE
GOVERNMENT.  FOR A CONTRAST TO THE PROPER COOPERATION BETWEEN TWO
BRANCHES OF A SINGLE DEPARTMENT OF JUSTICE AS REVEALED IN THIS CASE,
SEE THE STORY TOLD IN COLYER V. SKEFFINGTON, 265 F. 17.  THAT CASE SETS
FORTH IN DETAIL THE IMPROPER USE OF IMMIGRATION AUTHORITIES BY THE
BUREAU OF INVESTIGATION OF THE DEPARTMENT OF JUSTICE WHEN THE
IMMIGRATION SERVICE WAS A BRANCH OF THE DEPARTMENT OF LABOR AND WAS
ACTING NOT WITHIN ITS LAWFUL AUTHORITY BUT AS THE CAT'S PAW OF ANOTHER,
UNRELATED BRANCH OF THE GOVERNMENT. 

WE EMPHASIZE AGAIN THAT OUR VIEW OF THE MATTER WOULD BE TOTALLY
DIFFERENT HAD THE EVIDENCE ESTABLISHED, OR WERE THE COURTS BELOW NOT
JUSTIFIED IN NOT FINDING, THAT THE ADMINISTRATIVE WARRANT WAS HERE
EMPLOYED AS AN INSTRUMENT OF CRIMINAL LAW ENFORCEMENT TO CIRCUMVENT THE
LATTER'S LEGAL RESTRICTIONS, RATHER THAN AS A BONA FIDE PRELIMINARY
STEP IN A DEPORTATION PROCEEDING.  THE TEST IS WHETHER THE DECISION TO
PROCEED ADMINISTRATIVELY TOWARD DEPORTATION WAS INFLUENCED BY, AND WAS
CARRIED OUT FOR, A PURPOSE OF AMASSING EVIDENCE IN THE PROSECUTION FOR
CRIME.  THE RECORD PRECLUDES SUCH A FINDING BY THIS COURT. 

                                       II. 

THE CLAIM THAT THE ADMINISTRATIVE WARRANT BY WHICH PETITIONER WAS
ARRESTED WAS INVALID, BECAUSE IT DID NOT SATISFY THE REQUIREMENTS FOR
"WARRANTS" UNDER THE FOURTH AMENDMENT, IS NOT ENTITLED TO OUR
CONSIDERATION IN THE CIRCUMSTANCES BEFORE US.  IT WAS NOT MADE BELOW;
INDEED, IT WAS EXPRESSLY DISAVOWED.  STATUTES AUTHORIZING
ADMINISTRATIVE ARREST TO ACHIEVE DETENTION PENDING DEPORTATION
PROCEEDINGS HAVE THE SANCTION OF TIME.  IT WOULD EMPHASIZE THE
DISREGARD FOR THE PRESUMPTIVE RESPECT THE COURT OWES TO THE VALIDITY OF
ACTS OF CONGRESS, ESPECIALLY WHEN CONFIRMED BY UNCONTESTED HISTORICAL
LEGITIMACY, TO BRING INTO QUESTION FOR THE FIRST TIME SUCH A LONG
SANCTIONED PRACTICE OF GOVERNMENT AT THE BEHEST OF A PARTY WHO NOT ONLY
DID NOT CHALLENGE THE EXERCISE OF AUTHORITY BELOW, BUT EXPRESSLY
ACKNOWLEDGED ITS VALIDITY. 

THE GROUNDS RELIED ON IN THE TRIAL COURT AND THE COURT OF APPEALS BY
PETITIONER WERE SOLELY (IN ADDITION TO THE INSUFFICIENCY OF THE
EVIDENCE, A CONTENTION NOT HERE FOR REVIEW) (1) THE BAD FAITH OF THE
GOVERNMENT'S USE OF THE ADMINISTRATIVE ARREST WARRANT AND (2) THE LACK
OF A POWER INCIDENTAL TO THE EXECUTION OF AN ADMINISTRATIVE WARRANT TO
SEARCH AND SEIZE ARTICLES FOR USE AS EVIDENCE IN A LATER CRIMINAL
PROSECUTION.  AT NO TIME DID PETITIONER QUESTION THE LEGALITY OF THE
ADMINISTRATIVE ARREST PROCEDURE EITHER AS UNAUTHORIZED OR AS
UNCONSTITUTIONAL.  SUCH CHALLENGES WERE, TO REPEAT, DISCLAIMED.  AT THE
HEARING ON THE MOTION TO SUPPRESS, PETITIONER'S COUNSEL WAS QUESTIONED
BY THE COURT REGARDING THE THEORY OF RELIEF RELIED UPON: 

"THE COURT:  THEY (THE GOVERNMENT) WERE NOT AT LIBERTY TO ARREST HIM
(PETITIONER)? 

"MR. FRAIMAN:  NO, YOUR HONOR. 

"THEY WERE PERFECTLY PROPER IN ARRESTING HIM. 

"WE DON'T CONTEND THAT AT ALL. 

"AS A MATTER OF FACT, WE CONTEND IT WAS THEIR DUTY TO ARREST THIS MAN
AS THEY DID. 

"I THINK IT SHOULD SHOW OR RATHER, IT SHOWED ADMIRABLE THINKING ON
THE PART OF THE F.B.I.  AND THE IMMIGRATION SERVICE. 

"WE DON'T FIND ANY FAULT WITH THAT. 

"OUR CONTENTION IS THAT ALTHOUGH THEY WERE PERMITTED TO ARREST THIS
MAN, AND IN FACT, HAD A DUTY TO ARREST THIS MAN IN A MANNER IN WHICH
THEY DID, THEY DID NOT HAVE A RIGHT TO SEARCH HIS PREMISES FOR THE
MATERIAL WHICH RELATED TO ESPIONAGE. 

     *         *         *         *         * 

"  ...  HE WAS CHARGED WITH NO CRIMINAL OFFENSE IN THIS WARRANT. 

"THE COURT:  HE WAS SUSPECTED OF BEING ILLEGALLY IN THE COUNTRY,
WASN'T HE? 

"MR. FRAIMAN:  YES, YOUR HONOR. 

"THE COURT:  HE WAS PROPERLY ARRESTED. 

"MR. FRAIMAN:  HE WAS PROPERLY ARRESTED, WE CONCEDE THAT, YOUR
HONOR." 

COUNSEL FURTHER MADE IT PLAIN THAT THE ARREST WARRANT WHOSE VALIDITY
HE WAS CONCEDING WAS "ONE OF THESE IMMIGRATION WARRANTS WHICH IS
OBTAINED WITHOUT ANY BACKGROUND MATERIAL AT ALL."  AFFIRMATIVE
ACCEPTANCE OF WHAT IS NOW SOUGHT TO BE QUESTIONED COULD NOT BE
PLAINER. 

THE PRESENT FORM OF THE LEGISLATION GIVING AUTHORITY TO THE ATTORNEY
GENERAL OR HIS DELEGATE TO ARREST ALIENS PENDING DEPORTATION
PROCEEDINGS UNDER AN ADMINISTRATIVE WARRANT, NOT A JUDICIAL WARRANT
WITHIN THE SCOPE OF THE FOURTH AMENDMENT, IS SEC. 242(A) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952.  (8 U.S.C. SEC. 1252(A)).  THE
REGULATIONS UNDER THIS ACT DELEGATE THE AUTHORITY TO ISSUE THESE
ADMINISTRATIVE WARRANTS TO THE DISTRICT DIRECTORS OF THE I.N.S. "AT THE
COMMENCEMENT OF ANY PROCEEDING TO DEPORT  ...  OR AT ANY TIME
THEREAFTER  ...  WHENEVER, IN THEIR  ...  DISCRETION, IT APPEARS THAT
THE ARREST OF THE RESPONDENT IS NECESSARY OR DESIRABLE."  8 CFR SEC.
242.2(A).  ALSO, ACCORDING TO THESE REGULATIONS, PROCEEDINGS TO DEPORT
ARE COMMENCED BY ORDERS TO SHOW CAUSE ISSUED BY THE DISTRICT DIRECTORS
OR OTHERS; AND THE "OPERATING INSTRUCTIONS" OF THE I.N.S. DIRECT THAT
THE APPLICATION FOR AN ORDER TO SHOW CAUSE SHOULD BE BASED UPON A
SHOWING OF A PRIMA FACIE CASE OF DEPORTABILITY.  THE WARRANT OF ARREST
FOR PETITIONER WAS ISSUED BY THE NEW YORK DISTRICT DIRECTOR OF THE
I.N.S. AT THE SAME TIME AS HE SIGNED AN ORDER TO SHOW CAUSE. 
SCHOENENBERGER TESTIFIED THAT, BEFORE THE WARRANT AND ORDER WERE
ISSUED, HE AND KANZLER RELATED TO THE DISTRICT DIRECTOR WHAT THEY HAD
LEARNED FROM THE F.B.I. REGARDING PETITIONER'S STATUS AS AN ALIEN, AND
THE ORDER TO SHOW CAUSE RECITED THAT PETITIONER HAD FAILED TO REGISTER,
AS ALIENS MUST.  SINCE PETITIONER WAS A SUSPECTED SPY, WHO HAD NEVER
ACKNOWLEDGED HIS RESIDENCE IN THE UNITED STATES TO THE GOVERNMENT OR
OPENLY ADMITTED HIS PRESENCE HERE, THERE WAS AMPLE REASON TO BELIEVE
THAT HIS ARREST PENDING DEPORTATION WAS "NECESSARY OR DESIRABLE."  THE
ARREST PROCEDURE FOLLOWED IN THE PRESENT CASE FULLY COMPLIED WITH THE
STATUTE AND REGULATIONS. 

STATUTES PROVIDING FOR DEPORTATION HAVE ORDINARILY AUTHORIZED THE
ARREST OF DEPORTABLE ALIENS BY ORDER OF AN EXECUTIVE OFFICIAL.  THE
FIRST OF THESE WAS IN 1798.  ACT OF JUNE 25, 1798, C. 58, SEC. 2, 1
STAT. 571.  AND SEE, SINCE THAT TIME, AND BEFORE THE PRESENT ACT, ACT
OF OCT. 19, 1888, C. 1210, 25 STAT. 566; ACT OF MAR. 3, 1903, C. 1012,
SEC. 21, 32 STAT. 1218; ACT OF FEB. 20, 1907, C. 1134, SEC. 20, 34
STAT. 904; ACT OF FEB. 5, 1917, C. 29, SEC. 19, 39 STAT. 889; ACT OF
OCT. 16, 1918; C. 186, SEC. 2, 40 STAT. 1012; ACT OF MAY 10, 1920, C.
174, 41 STAT. 593; INTERNAL SECURITY ACT OF 1950, C. 1024, TITLE I,
SEC. 22, 64 STAT. 1008.  TO BE SURE, SOME OF THESE STATUTES, NAMELY THE
ACTS OF 1888, 1903, AND 1907, DEALT ONLY WITH ALIENS WHO HAD LANDED
ILLEGALLY IN THE UNITED STATES, AND NOT WITH ALIENS SOUGHT TO BE
DEPORTED BY REASON OF SOME ACT OR FAILURE TO ACT SINCE ENTERING.  EVEN
APART FROM THESE, THERE REMAINS OVERWHELMING HISTORICAL LEGISLATIVE
RECOGNITION OF THE PROPRIETY OF ADMINISTRATIVE ARREST FOR DEPORTABLE
ALIENS SUCH AS PETITIONER. 

THE CONSTITUTIONAL VALIDITY OF THIS LONG-STANDING ADMINISTRATIVE
ARREST PROCEDURE IN DEPORTATION CASES HAS NEVER BEEN DIRECTLY
CHALLENGED IN REPORTED LITIGATION.  TWO LOWER COURT CASES INVOLVED
OBLIQUE CHALLENGES, WHICH WERE SUMMARILY REJECTED.  PODOLSKI V. BAIRD,
94 F. SUPP. 294; EX PARTE AVAKIAN, 188 F. 688, 692.  SEE ALSO THE
DISCUSSION IN COLYER V. SKEFFINGTON, 265 F. 17, REVERSED ON OTHER
GROUNDS SUB NOM. SKEFFINGTON V. KATZEFF, 277 F. 129, WHERE THE DISTRICT
COURT MADE AN EXHAUSTIVE EXAMINATION OF THE FAIRNESS OF A GROUP OF
DEPORTATION PROCEEDINGS INITIATED BY ADMINISTRATIVE ARRESTS, BUT
NOWHERE BROUGHT INTO QUESTION THE VALIDITY OF THE ADMINISTRATIVE ARREST
PROCEDURE AS SUCH.  THIS COURT SEEMS NEVER EXPRESSLY TO HAVE DIRECTED
ITS ATTENTION TO THE PARTICULAR QUESTION OF THE CONSTITUTIONAL VALIDITY
OF ADMINISTRATIVE DEPORTATION WARRANTS.  IT HAS FREQUENTLY, HOWEVER,
UPHELD ADMINISTRATIVE DEPORTATION PROCEEDINGS SHOWN BY THE COURT'S
OPINION TO HAVE BEEN BEGUN BY ARRESTS PURSUANT TO SUCH WARRANTS.  SEE
THE JAPANESE IMMIGRANT CASE, 189 U.S. 86; ZAKONAITE V. WOLF, 226 U.S.
272; BILOKUMSKY V. TOD, 263 U.S. 149; CARLSON V. LANDON, 342 U.S. 524. 
IN CARLSON V. LANDON, THE VALIDITY OF THE ARREST WAS NECESSARILY
IMPLICATED, FOR THE COURT THERE SUSTAINED DISCRETION IN THE ATTORNEY
GENERAL TO DENY BAIL TO ALIEN COMMUNISTS HELD PENDING DEPORTATION ON
ADMINISTRATIVE ARREST WARRANTS.  IN THE PRESENT OF THIS IMPRESSIVE
HISTORICAL EVIDENCE OF ACCEPTANCE OF THE VALIDITY OF STATUTES PROVIDING
FOR ADMINISTRATIVE DEPORTATION ARREST FROM ALMOST THE BEGINNING OF THE
NATION, PETITIONER'S DISAVOWAL OF THE ISSUE BELOW CALLS FOR NO FURTHER
CONSIDERATION. 

                                       III. 

SINCE PETITIONER'S ARREST WAS VALID, WE REACH THE QUESTION WHETHER
THE SEVEN CHALLENGED ITEMS, ALL SEIZED DURING SEARCHES WHICH WERE A
DIRECT CONSEQUENCE OF THAT ARREST, WERE PROPERLY ADMITTED INTO
EVIDENCE.  THIS ISSUE RAISES THREE QUESTIONS:  (1) WERE THE SEARCHES
WHICH PRODUCED THESE ITEMS PROPER SEARCHES FOR THE GOVERNMENT TO HAVE
MADE?  IF THEY WERE NOT, THEN WHATEVER THE NATURE OF THE SEIZED
ARTICLES, AND HOWEVER PROPER IT WOULD HAVE BEEN TO SEIZE THEM DURING A
VALID SEARCH, THEY SHOULD HAVE BEEN SUPPRESSED AS THE FRUITS OF
ACTIVITY IN VIOLATION OF THE FOURTH AMENDMENT.  E.G., WEEKS V. UNITED
STATES, 232 U.S. 383, 393.  (2) WERE THE ARTICLES SEIZED PROPERLY
SUBJECT TO SEIZURE, EVEN DURING A LAWFUL SEARCH?  WE HAVE HELD IN THIS
REGARD THAT NOT EVERY ITEM MAY BE SEIZED WHICH IS PROPERLY INSPECTIBLE
BY THE GOVERNMENT IN THE COURSE OF A LEGAL SEARCH; FOR EXAMPLE, PRIVATE
PAPERS DESIRED BY THE GOVERNMENT MERELY FOR USE AS EVIDENCE MAY NOT BE
SEIZED, NO MATTER HOW LAWFUL THE SEARCH WHICH DISCOVERS THEM, GOULED V.
UNITED STATES, 255 U.S. 298, 310, NOR MAY THE GOVERNMENT SEIZE,
WHOLESALE, THE CONTENTS OF A HOUSE IT MIGHT HAVE SEARCHED, KREMEN V.
UNITED STATES, 353 U.S. 346.  (3) WAS THE GOVERNMENT FREE TO USE THE
ARTICLES, EVEN IF PROPERLY SEIZED, AS EVIDENCE IN A CRIMINAL CASE, THE
SEIZURES HAVING BEEN MADE IN THE COURSE OF A SEPARATE ADMINISTRATIVE
PROCEEDING? 

THE MOST FUNDAMENTAL OF THE ISSUES INVOLVED CONCERNS THE LEGALITY OF
THE SEARCH AND SEIZURES MADE IN PETITIONER'S ROOM IN THE HOTEL LATHAM. 
THE GROUND OF OBJECTION IS THAT A SEARCH MAY NOT BE CONDUCTED AS AN
INCIDENT TO A LAWFUL ADMINISTRATIVE ARREST. 

WE TAKE AS A STARTING POINT THE CASES IN THIS COURT DEALING WITH THE
EXTENT OF THE SEARCH WHICH MAY PROPERLY BE MADE WITHOUT A WARRANT
FOLLOWING A LAWFUL ARREST FOR CRIME.  THE SEVERAL CASES ON THIS SUBJECT
IN THIS COURT CANNOT BE SATISFACTORILY RECONCILED.  THIS PROBLEM HAS,
AS IS WELL-KNOWN, PROVOKED STRONG AND FLUCTUATING DIFFERENCES OF VIEW
ON THE COURT.  THIS IS NOT THE OCCASION TO ATTEMPT TO RECONCILE ALL THE
DECISIONS, OR TO RE-EXAMINE THEM.  COMPARE MARRON V. UNITED STATES, 275
U.S. 192, WITH GO-BART CO. V. UNITED STATES, 282 U.S. 344, AND UNITED
STATES V. LEFKOWITZ, 285 U.S. 452; COMPARE GO-BART, SUPRA, AND
LEFKOWITZ, SUPRA, WITH HARRIS V. UNITED STATES, 331 U.S. 145, AND
UNITED STATES V. RABINOWITZ, 339 U.S. 56; COMPARE ALSO HARRIS, SUPRA,
WITH TRUPIANO V. UNITED STATES, 334 U.S. 699, AND TRUPIANO WITH
RABINOWITZ, SUPRA (OVERRULING TRUPIANO).  OF THESE CASES, HARRIS AND
RABINOWITZ SET BY FAR THE MOST PERMISSIVE LIMITS UPON SEARCHES
INCIDENTAL TO LAWFUL ARRESTS.  IN VIEW OF THEIR JUDICIAL CONTEXT, THE
TRIAL JUDGE AND THE GOVERNMENT JUSTIFIABLY RELIED UPON THESE CASES FOR
GUIDANCE AT THE TRIAL; AND THE PETITIONER HIMSELF ACCEPTED THE HARRIS
CASE ON THE MOTION TO SUPPRESS, NOR DOES HE ASK THIS COURT TO
RECONSIDER HARRIS AND RABINOWITZ.  IT WOULD, UNDER THESE CIRCUMSTANCES,
BE UNJUSTIFIABLE RETROSPECTIVE LAWMAKING FOR THE COURT IN THIS CASE TO
REJECT THE AUTHORITY OF THESE DECISIONS. 

ARE THERE TO BE PERMITTED INCIDENTAL TO VALID ADMINISTRATIVE ARRESTS,
SEARCHES AS BROAD IN PHYSICAL AREA AS, AND ANALOGUOUS IN PURPOSE TO,
THOSE PERMITTED BY THE APPLICABLE PRECEDENTS AS INCIDENTS TO LAWFUL
ARRESTS FOR CRIME?  SPECIFICALLY, WERE THE OFFICERS OF THE I.N.S.
ACTING LAWFULLY IN THIS CASE WHEN, AFTER HIS ARREST, THEY SEARCHED
THROUGH PETITIONER'S BELONGINGS IN HIS HOTEL ROOM LOOKING FOR WEAPONS
AND DOCUMENTS TO EVIDENCE HIS "ALIENAGE"?  THERE CAN BE NO DOUBT THAT A
SEARCH FOR WEAPONS HAS AS MUCH JUSTIFICATION HERE AS IT HAS IN THE CASE
OF AN ARREST FOR CRIME, WHERE IT HAS BEEN RECOGNIZED AS PROPER.  E.G.,
AGNELLO V. UNITED STATES, 269 U.S. 20, 30.  IT IS NO LESS IMPORTANT FOR
GOVERNMENT OFFICERS, ACTING UNDER ESTABLISHED PROCEDURE TO EFFECT A
DEPORTATION ARREST RATHER THAN ONE FOR CRIME, TO PROTECT THEMSELVES AND
TO INSURE THAT THEIR PRISONER RETAINS NO MEANS BY WHICH TO ACCOMPLISH
AN ESCAPE. 

NOR IS THERE ANY CONSTITUTIONAL REASON TO LIMIT THE SEARCH FOR
MATERIALS PROVING THE DEPORTABILITY OF AN ALIEN, WHEN VALIDLY ARRESTED,
MORE SEVERELY THAN WE LIMIT THE SEARCH FOR MATERIALS PROBATIVE OF CRIME
WHEN A VALID CRIMINAL ARREST IS MADE.  THE NEED FOR THE PROOF IS AS
GREAT IN ONE CASE AS IN THE OTHER, FOR DEPORTATION CAN BE ACCOMPLISHED
ONLY AFTER A HEARING AT WHICH DEPORTABILITY IS ESTABLISHED.  SINCE A
DEPORTATION ARREST WARRANT IS NOT A JUDICIAL WARRANT, A SEARCH
INCIDENTAL TO A DEPORTATION ARREST IS WITHOUT THE AUTHORITY OF A JUDGE
OR COMMISSIONER.  BUT SO IS A SEARCH INCIDENTAL TO A CRIMINAL ARREST
MADE UPON PROBABLE CAUSE WITHOUT A WARRANT, AND UNDER RABINOWITZ, 339
U.S., AT 60, SUCH A SEARCH DOES NOT REQUIRE A JUDICIAL WARRANT FOR ITS
VALIDITY.  IT IS TO BE REMEMBERED THAT AN I.N.S. OFFICER MAY NOT ARREST
AND SEARCH ON HIS OWN.  APPLICATION FOR A WARRANT MUST BE MADE TO AN
INDEPENDENT RESPONSIBLE OFFICER, THE DISTRICT DIRECTOR OF THE I.N.S.,
TO WHOM A PRIMA FACIE CASE OF DEPORTABILITY MUST BE SHOWN.  THE
DIFFERENCES BETWEEN THE PROCEDURAL PROTECTIONS GOVERNING CRIMINAL AND
DEPORTATION ARRESTS ARE NOT OF A QUALITY OR MAGNITUDE TO WARRANT THE
DEDUCTION OF A CONSTITUTIONAL DIFFERENCE REGARDING THE RIGHT OF
INCIDENTAL SEARCH.  IF ANYTHING, WE OUGHT TO BE MORE VIGILANT, NOT
LESS, TO PROTECT INDIVIDUALS AND THEIR PROPERTY FROM WARRANTLESS
SEARCHES MADE FOR THE PURPOSE OF TURNING UP PROOF TO CONVICT THAN WE
ARE TO PROTECT THEM FROM SEARCHES FOR MATTER BEARING ON DEPORTABILITY. 
ACCORDING TO THE UNIFORM DECISIONS OF THIS COURT DEPORTATION
PROCEEDINGS ARE NOT SUBJECT TO THE CONSTITUTIONAL SAFEGUARDS FOR
CRIMINAL PROSECUTIONS.  SEARCHES FOR EVIDENCE OF CRIME PRESENT
SITUATIONS DEMANDING THE GREATEST, NOT THE LEAST, RESTRAINT UPON THE
GOVERNMENT'S INTRUSION INTO PRIVACY; ALTHOUGH ITS PROTECTION IS NOT
LIMITED TO THEM, IT WAS AT THESE SEARCHES WHICH THE FOURTH AMENDMENT
WAS PRIMARILY DIRECTED.  WE CONCLUDE, THEREFORE, THAT GOVERNMENT
OFFICERS WHO EFFECT A DEPORTATION ARREST HAVE A RIGHT OF INCIDENTAL
SEARCH ANALOGOUS TO THE SEARCH PERMITTED CRIMINAL LAW-ENFORCEMENT
OFFICERS. 

JUDGED BY THE PREVAILING DOCTRINE, THE SEARCH OF PETITIONER'S HOTEL
ROOM WAS JUSTIFIED.  ITS PHYSICAL SCOPE, BEING CONFINED TO THE
PETITIONER'S ROOM AND THE ADJOINING BATHROOM, WAS FAR LESS EXTENSIVE
THAN THE SEARCH IN HARRIS.  THE SEARCH HERE WAS LESS INTENSIVE THAN
WERE THE DELIBERATELY EXHAUSTIVE QUESTS IN HARRIS AND RABINOWITZ, AND
ITS PURPOSE NOT LESS JUSTIFIABLE.  THE ONLY THINGS SOUGHT HERE, IN
ADDITION TO WEAPONS, WERE DOCUMENTS CONNECTED WITH PETITIONER'S STATUS
AS AN ALIEN.  THESE MAY WELL BE CONSIDERED AS INSTRUMENTS OR MEANS FOR
ACCOMPLISHING HIS ILLEGAL STATUS, AND THUS PROPER OBJECTS OF SEARCH
UNDER HARRIS, SUPRA, 331 U.S., AT 154. 

TWO OF THE CHALLENGED ITEMS WERE SEIZED DURING THIS SEARCH OF
PETITIONER'S PROPERTY AT HIS HOTEL ROOM.  THE FIRST WAS ITEM (2), A
FORGED NEW YORK BIRTH CERTIFICATE FOR "MARTIN COLLINS," ONE OF THE
FALSE IDENTITIES WHICH PETITIONER ASSUMED IN THIS COUNTRY IN ORDER TO
KEEP HIS PRESENCE HERE UNDETECTED.  THIS ITEM WAS SEIZABLE WHEN FOUND
DURING A PROPER SEARCH, NOT ONLY AS A FORGED OFFICIAL DOCUMENT BY WHICH
PETITIONER SOUGHT TO EVADE HIS OBLIGATION TO REGISTER AS AN ALIEN, BUT
ALSO AS A DOCUMENT WHICH PETITIONER WAS USING AS AN AID IN THE
COMMISSION OF ESPIONAGE, FOR HIS UNDETECTED PRESENCE IN THIS COUNTRY
WAS VITAL TO HIS WORK AS A SPY.  DOCUMENTS USED AS A MEANS TO COMMIT
CRIME ARE THE PROPER SUBJECTS OF SEARCH WARRANTS, GOULED V. UNITED
STATES, 255 U.S. 298, AND ARE SEIZABLE WHEN DISCOVERED IN THE COURSE OF
A LAWFUL SEARCH, MARRON V. UNITED STATES, 275 U.S. 192. 

THE OTHER ITEM SEIZED IN THE COURSE OF THE SEARCH OF PETITIONER'S
HOTEL ROOM WAS ITEM (1), A PIECE OF GRAPH PAPER CONTAINING A CODED
MESSAGE.  THIS WAS SEIZED BY SCHOENENBERGER AS PETITIONER, WHILE
PACKING HIS SUITCASE, WAS SEEKING TO HIDE IT IN HIS SLEEVE.  AN
ARRESTING OFFICER IS FREE TO TAKE HOLD OF ARTICLES WHICH HE SEES THE
ACCUSED DELIBERATELY TRYING TO HIDE.  THIS POWER DERIVES FROM THE
DANGERS THAT A WEAPON WILL BE CONCEALED, OR THAT RELEVANT EVIDENCE WILL
BE DESTROYED.  ONCE THIS PIECE OF GRAPH PAPER CAME INTO
SCHOENENBERGER'S HANDS, IT WAS NOT NECESSARY FOR HIM TO RETURN IT, AS
IT WAS AN INSTRUMENTALITY FOR THE COMMISSION OF ESPIONAGE.  THIS IS SO
EVEN THOUGH SCHOENENBERGER WAS NOT ONLY NOT LOOKING FOR ITEMS CONNECTED
WITH ESPIONAGE BUT COULD NOT PROPERLY HAVE BEEN SEARCHING FOR THE
PURPOSE OF FINDING SUCH ITEMS.  WHEN AN ARTICLE SUBJECT TO LAWFUL
SEIZURE PROPERLY COMES INTO AN OFFICER'S POSSESSION IN THE COURSE OF A
LAWFUL SEARCH IT WOULD BE ENTIRELY WITHOUT REASON TO SAY THAT HE MUST
RETURN IT BECAUSE IT WAS NOT ONE OF THE THINGS IT WAS HIS BUSINESS TO
LOOK FOR.  SEE HARRIS, SUPRA, 331 U.S., AT 154-155. 

ITEMS (3),(4), AND (5), A BIRTH CERTIFICATE FOR "EMIL GOLDFUS" WHO
DIED IN 1903, A CERTIFICATE OF VACCINATION FOR "MARTIN COLLINS," AND A
BANK BOOK FOR "EMIL GOLDFUS" WERE SEIZED, NOT IN PETITIONER'S HOTEL
ROOM, BUT IN A MORE CAREFUL SEARCH AT I.N.S. HEADQUARTERS OF THE
BELONGINGS PETITIONER CHOSE TO TAKE WITH HIM WHEN ARRESTED.  THIS
SEARCH WAS A PROPER ONE.  THE PROPERTY TAKEN BY PETITIONER TO I.N.S.
HEADQUARTERS WAS ALL PROPERTY WHICH, UNDER HARRIS, WAS SUBJECT TO
SEARCH AT THE PLACE OF ARREST.  WE DO NOT THINK IT SIGNIFICANTLY
DIFFERENT, WHEN THE ACCUSED DECIDES TO TAKE THE PROPERTY WITH HIM, FOR
THE SEARCH OF IT TO OCCUR INSTEAD AT THE FIRST PLACE OF DETENTION WHEN
THE ACCUSED ARRIVES THERE, ESPECIALLY AS THE SEARCH OF PROPERTY CARRIED
BY AN ACCUSED TO THE PLACE OF DETENTION HAS ADDITIONAL JUSTIFICATIONS,
SIMILAR TO THOSE WHICH JUSTIFY A SEARCH OF THE PERSON OF ONE WHO IS
ARRESTED.  IT IS TO BE NOTED THAT THIS IS NOT A CASE, LIKE KREMEN V.
UNITED STATES, 353 U.S.  346, WHERE THE ENTIRE CONTENTS OF THE PLACE
WHERE THE ARREST WAS MADE WERE SEIZED.  SUCH A MASS SEIZURE IS
ILLEGAL.  THE GOVERNMENT HERE DID NOT SEIZE THE CONTENTS OF
PETITIONER'S HOTEL ROOM.   PETITIONER TOOK WITH HIM ONLY WHAT HE
WISHED.  HE CHOSE TO LEAVE SOME THINGS BEHIND IN HIS ROOM, WHICH HE
VOLUNTARILY RELINQUISHED.  AND ITEMS (3),(4), AND (5) WERE ARTICLES
SUBJECT TO SEIZURE WHEN FOUND DURING A LAWFUL SEARCH.  THEY WERE ALL
CAPABLE OF BEING USED TO ESTABLISH AND MAINTAIN A FALSE IDENTITY FOR
PETITIONER, JUST AS THE FORGED "MARTIN COLLINS" BIRTH CERTIFICATE, AND
WERE SEIZABLE FOR THE SAME REASONS.    ITEMS (1)-(5) HAVING COME INTO
THE GOVERNMENT'S POSSESSION THROUGH LAWFUL SEARCHES AND SEIZURES
CONNECTED WITH AN ARREST PENDING DEPORTATION, WAS THE GOVERNMENT FREE
TO USE THEM AS EVIDENCE IN A CRIMINAL PROSECUTION TO WHICH THEY
RELATED?  WE HOLD THAT IT WAS.  GOOD REASON MUST BE SHOWN FOR
PROHIBITING THE GOVERNMENT FROM USING RELEVANT, OTHERWISE ADMISSIBLE,
EVIDENCE.  THERE IS EXCELLENT REASON FOR DISALLOWING ITS USE IN THE
CASE OF EVIDENCE, THOUGH RELEVANT, WHICH IS SEIZED BY THE GOVERNMENT IN
VIOLATION OF THE FOURTH AMENDMENT TO THE CONSTITUTION.  "IF LETTERS AND
PRIVATE DOCUMENTS CAN THUS BE SEIZED AND HELD AND USED IN EVIDENCE
AGAINST A CITIZEN ACCUSED OF AN OFFENSE, THE PROTECTION OF THE FOURTH
AMENDMENT DECLARING HIS RIGHT TO BE SECURE AGAINST SUCH SEARCHES AND
SEIZURES IS OF NO VALUE, AND, SO FAR AS THOSE THUS PLACED ARE
CONCERNED, MIGHT AS WELL BE STRICKEN FROM THE CONSTITUTION."  WEEKS V.
UNITED STATES, 232 U.S. 383, 393. 

THESE CONSIDERATIONS ARE HERE ABSENT, SINCE ITEMS (1)-(5) WERE SEIZED
AS A CONSEQUENCE OF WHOLLY LAWFUL CONDUCT.  THAT BEING SO, WE CAN SEE
NO RATIONAL BASIS FOR EXCLUDING THESE RELEVANT ITEMS FROM TRIAL:  NO
WRONGDOING POLICE OFFICER WOULD THEREBY BE INDIRECTLY CONDEMNED, FOR
THERE WERE NO SUCH WRONGDOERS; THE FOURTH AMENDMENT WOULD NOT THEREBY
BE ENFORCED, FOR NO ILLEGAL SEARCH OR SEIZURE WAS MADE; THE COURT WOULD
BE LENDING ITS AID TO NO LAWLESS GOVERNMENT ACTION, FOR NONE OCCURRED. 
OF COURSE COOPERATION BETWEEN THE BRANCH OF THE DEPARTMENT OF JUSTICE
DEALING WITH CRIMINAL LAW ENFORCEMENT AND THE BRANCH DEALING WITH THE
IMMIGRATION LAWS WOULD BE LESS EFFECTIVE IF EVIDENCE LAWFULLY SEIZED BY
THE ONE COULD NOT BE USED BY THE OTHER.  ONLY TO THE EXTENT THAT IT
WOULD BE TO THE PUBLIC INTEREST TO DETER AND PREVENT SUCH COOPERATION,
WOULD AN EXCLUSIONARY RULE IN A CASE LIKE THE PRESENT BE DESIRABLE. 
SURELY NO CONSIDERATION OF CIVIL LIBERTIES COMMENDS DISCOURAGEMENT OF
SUCH COOPERATION BETWEEN THESE TWO BRANCHES WHEN UNDERTAKEN IN GOOD
FAITH.  WHEN UNDERTAKEN IN BAD FAITH TO AVOID CONSTITUTIONAL RESTRAINTS
UPON CRIMINAL LAW ENFORCEMENT THE EVIDENCE MUST BE SUPPRESSED.  THAT IS
NOT, AS WE HAVE SEEN, THIS CASE.  INDIVIDUAL CASES OF BAD FAITH
COOPERATION SHOULD BE DEALT WITH BY FINDINGS TO THAT EFFECT IN THE
CASES AS THEY ARISE, NOT BY AN EXCLUSIONARY RULE PREVENTING EFFECTIVE
COOPERATION WHEN UNDERTAKEN IN ENTIRELY GOOD FAITH. 

WE HAVE LEFT TO THE LAST THE ADMISSIBILITY OF ITEMS (6) AND (7), THE
HOLLOWED-OUT PENCIL AND THE BLOCK OF WOOD CONTAINING A "CIPHER PAD,"
BECAUSE THEIR ADMISSIBILITY IS FOUNDED UPON AN ENTIRELY DIFFERENT SET
OF CONSIDERATIONS.  THESE TWO ITEMS WERE FOUND BY AN AGENT OF THE
F.B.I. IN THE COURSE OF A SEARCH HE UNDERTOOK OF PETITIONER'S HOTEL
ROOM, IMMEDIATELY AFTER PETITIONER HAD PAID HIS BILL AND VACATED THE
ROOM.  THEY WERE FOUND IN THE ROOM'S WASTEPAPER BASKET, WHERE
PETITIONER HAD PUT THEM WHILE PACKING HIS BELONGINGS AND PREPARING TO
LEAVE.  NO PRETENSE IS MADE THAT THIS SEARCH BY THE F.B.I. WAS FOR ANY
PURPOSE OTHER THAN TO GATHER EVIDENCE OF CRIME, THAT IS, EVIDENCE OF
PETITIONER'S ESPIONAGE.  AS SUCH, HOWEVER, IT WAS ENTIRELY LAWFUL,
ALTHOUGH UNDERTAKEN WITHOUT A WARRANT.  THIS IS SO FOR THE REASON THAT
AT THE TIME OF THE SEARCH PETITIONER HAD VACATED THE ROOM.  THE HOTEL
THEN HAD THE EXCLUSIVE RIGHT TO ITS POSSESSION, AND THE HOTEL
MANAGEMENT FREELY GAVE ITS CONSENT THAT THE SEARCH BE MADE.  NOR WAS IT
UNLAWFUL TO SEIZE THE ENTIRE CONTENTS OF THE WASTEPAPER BASKET, EVEN
THOUGH SOME OF ITS CONTENTS HAD NO CONNECTION WITH CRIME.  SO FAR AS
THE RECORD SHOWS, PETITIONER HAD ABANDONED THESE ARTICLES.  HE HAD
THROWN THEM AWAY.  SO FAR AS HE WAS CONCERNED, THEY WERE BONA
VACANTIA.  THERE CAN BE NOTHING UNLAWFUL IN THE GOVERNMENT'S
APPROPRIATION OF SUCH ABANDONED PROPERTY.  SEE HESTER V. UNITED STATES,
265 U.S. 57, 58.  THE TWO ITEMS WHICH WERE EVENTUALLY INTRODUCED IN
EVIDENCE WERE ASSERTEDLY MEANS FOR THE COMMISSION OF ESPIONAGE, AND
WERE THEMSELVES SEIZABLE AS SUCH.  THESE TWO ITEMS HAVING BEEN LAWFULLY
SEIZED BY THE GOVERNMENT IN CONNECTION WITH AN INVESTIGATION OF CRIME,
WE ENCOUNTER NO BASIS FOR DISCUSSING FURTHER THEIR ADMISSIBILITY AS
EVIDENCE.  AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

CASES OF NOTORIOUS CRIMINALS - LIKE CASES OF SMALL, MISERABLE ONES -
ARE APT TO MAKE BAD LAW.  WHEN GUILT PERMEATES A RECORD, EVEN JUDGES
SOMETIMES RELAX AND LET THE POLICE TAKE SHORTCUTS NOT SANCTIONED BY
CONSTITUTIONAL PROCEDURES.  THAT PRACTICE, IN CERTAIN PERIODS OF OUR
HISTORY AND IN CERTAIN COURTS, HAS LOWERED OUR STANDARDS OF LAW
ADMINISTRATION.  THE HARM IN THE GIVEN CASE MAY SEEM EXCUSABLE.  BUT
THE PRACTICES GENERATED BY THE PRECEDENT HAVE FAR-REACHING CONSEQUENCES
THAT ARE HARMFUL AND INJURIOUS BEYOND MEASUREMENT.  THE PRESENT
DECISION IS AN EXCELLENT EXAMPLE. 

THE OPENING WEDGE THAT BROADENED THE POWER OF ADMINISTRATIVE OFFICERS
- AS DISTINGUISHED FROM POLICE - TO ENTER AND SEARCH PEOPLES' HOMES WAS
FRANK V. MARYLAND, 359 U.S. 360.  THAT CASE ALLOWED A HEALTH INSPECTOR
TO ENTER A HOME WITHOUT A WARRANT, EVEN THOUGH HE HAD AMPLE TIME TO GET
ONE.  THE OFFICIALS OF THE IMMIGRATION AND NATURALIZATION SERVICE
(I.N.S.)  ARE NOW ADDED TO THE PREFERRED LIST.  THEY ARE PREFERRED
BECAUSE THEIR DUTIES, BEING STRICTLY ADMINISTRATIVE, PUT THEM IN A
SEPARATE CATEGORY FROM THOSE WHO ENFORCE THE CRIMINAL LAW.  THEY NEED
NOT GO TO MAGISTRATES, THE COURT SAYS, FOR WARRANTS OF ARREST.  THEIR
WARRANTS ARE ISSUED WITHIN THE HEIRARCHY OF THE AGENCY ITSELF.  (FN1)
YET, AS I ATTEMPTED TO SHOW IN MY DISSENT IN THE FRANK CASE, THE FOURTH
AMENDMENT IN ORIGIN HAD TO DO AS MUCH WITH FERRETING OUT HERETICS AND
COLLECTING TAXES AS WITH ENFORCEMENT OF THE CRIMINAL LAWS.  359 U.S.,
AT 376-379. 

MOREOVER, THE ADMINISTRATIVE OFFICER WHO INVADES THE PRIVACY OF THE
HOME MAY BE ONLY A FRONT FOR THE POLICE WHO ARE THUS SAVED THE NUISANCE
OF GETTING A WARRANT.  WE NEED NOT GO FAR TO FIND EXAMPLES.  IN
MARYLAND V. PETTIFORD, SUP. BENCH BALT.  CITY, THE DAILY RECORD, DEC.
16, 1959, THE POLICE USED THE MASK OF A HEALTH INSPECTOR TO MAKE THE
FRANK CASE SERVE AS AN EASY WAY TO GET A SEARCH WITHOUT A WARRANT. 
HAPPILY, THEY WERE REBUKED.  (FN2)  BUT THAT CASE SHOWS THE KIND OF
PROBLEMS THE FRANK DOCTRINE GENERATES.  THE PRESENT CASE IS ANOTHER
EXAMPLE OF THE SAME KIND, ALTHOUGH HERE THE POLICE ARE NOT REBUKED. 
THE ADMINISTRATIVE OFFICIAL WITH AN ADMINISTRATIVE WARRANT, OVER WHICH
NO JUDICIAL OFFICIAL EXERCISES ANY SUPERVISION AND WHICH BY STATUTE MAY
BE USED ONLY FOR DEPORTATION, PERFORMS A NEW ROLE.  THE POLICE WEAR HIS
MASK TO DO POLICE WORK.  THAT, IN MY VIEW, MAY NOT BE DONE, EVEN THOUGH
WE ASSUME THAT THE ADMINISTRATIVE WARRANT ISSUED BY AN ADMINISTRATIVE
RATHER THAN A JUDICIAL OFFICER IS VALID FOR AN ARREST FOR THE PURPOSE
OF DEPORTATION.   WE TAKE LIBERTIES WITH AN ACT OF CONGRESS, AS WELL AS
THE CONSTITUTION, WHEN WE PERMIT THIS TO BE DONE.  THE STATUTE PERMITS
THE ARREST OF AN ALIEN ON AN ADMINISTRATIVE WARRANT "PENDING A
DETERMINATION OF DEPORTABILITY."  (FN3)  THE COURT NOW READS THE ACT AS
IF IT READ "PENDING AN INVESTIGATION OF CRIMINAL CONDUCT."  SUCH WAS
THE NATURE OF THE ARREST. 

WITH DUE DEFERENCE TO THE TWO LOWER COURTS, I THINK THE RECORD
PLAINLY SHOWS THAT F.B.I.  AGENTS WERE THE MOVING FORCE BEHIND THIS
ARREST AND SEARCH.  FOR AT LEAST A MONTH THEY INVESTIGATED THE
ESPIONAGE ACTIVITIES OF PETITIONER.  THEY WERE TIPPED OFF CONCERNING
THIS MAN AND HIS ROLE IN MAY; THE ARREST AND SEARCH WERE MADE ON JUNE
21.  THE F.B.I. HAD PLENTY OF TIME TO GET A SEARCH WARRANT, AS MUCH IF
NOT MORE TIME THAN THEY HAD IN JOHNSON V. UNITED STATES, 333 U.S. 10,
AND KREMEN V. UNITED STATES, 353 U.S. 346, WHERE THE COURT HELD
WARRANTLESS SEARCHES ILLEGAL.  BUT THE F.B.I. DID NOT GO TO A
MAGISTRATE FOR A SEARCH WARRANT.  THEY WENT INSTEAD TO THE I.N.S. AND
BRIEFED THE OFFICIALS OF THAT AGENCY ON WHAT THEY HAD DISCOVERED.  ON
THE BASIS OF THIS DATA A REPORT WAS MADE TO JOHN MURFF, ACTING DISTRICT
DIRECTOR OF THE I.N.S., WHO ISSUED THE WARRANT OF ARREST. 

NO EFFORT WAS MADE BY THE F.B.I. TO OBTAIN A SEARCH WARRANT FROM ANY
JUDICIAL OFFICER, THOUGH, AS I SAID, THERE WAS PLENTY OF TIME FOR SUCH
AN APPLICATION.  THE ADMINISTRATIVE WARRANT OF ARREST WAS CHOSEN WITH
CARE AND CALCULATION AS THE VEHICLE THROUGH WHICH THE ARREST AND SEARCH
WERE TO BE MADE.   THE F.B.I. HAD AN AGREEMENT WITH THE OFFICIALS OF
I.N.S. THAT THIS WARRANT OF ARREST WOULD NOT BE SERVED AT LEAST UNTIL
PETITONER REFUSED TO "COOPERATE."  THE F.B.I. AGENTS WENT WITH AGENTS
OF THE I.N.S. TO APPREHEND PETITIONER IN HIS HOTEL ROOM.  AGAIN, IT WAS
THE F.B.I. AGENTS WHO WERE FIRST.  THEY WERE THE ONES WHO ENTERED
PETITIONER'S ROOM AND WHO INTERROGATED HIM TO SEE IF HE WOULD
"COOPERATE"; AND WHEN THEY WERE UNABLE TO GET HIM TO "COOPERATE" BY
THREATENING HIM WITH ARREST, THEY SIGNALED AGENTS OF THE I.N.S. WHO HAD
WAITED OUTSIDE TO COME IN AND MAKE THE ARREST.  THE SEARCH WAS MADE
BOTH BY THE F.B.I. AGENTS AND BY OFFICERS OF THE I.N.S.  AND WHEN
PETITIONER WAS FLOWN 1,000 MILES TO A SPECIAL DETENTION CAMP AND HELD
FOR THREE WEEKS, THE AGENTS OF THE F.B.I. AS WELL AS I.N.S.
INTERROGATED HIM.  (FN4) 

THUS THE F.B.I. USED AN ADMINISTRATIVE WARRANT TO MAKE AN ARREST FOR
CRIMINAL INVESTIGATION BOTH IN VIOLATION OF SEC. 242(A) OF THE
IMMIGRATION AND NATIONALITY ACT (FN5) AND IN VIOLATION OF THE BILL OF
RIGHTS. 

THE ISSUE IS NOT WHETHER THESE F.B.I. AGENTS ACTED IN BAD FAITH.  OF
COURSE THEY DID NOT.  THE QUESTION IS HOW FAR ZEAL MAY BE PERMITTED TO
CARRY OFFICIALS BENT ON LAW ENFORCEMENT.  AS MR. JUSTICE BRANDEIS ONCE
SAID, "EXPERIENCE SHOULD TEACH US TO BE MOST ON OUR GUARD TO PROTECT
LIBERTY WHEN THE GOVERNMENT'S PURPOSES ARE BENEFICENT."  OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 479 (DISSENTING OPINION).  THE FACTS SEEM
TO ME CLEARLY TO ESTABLISH THAT THE F.B.I. AGENTS WORE THE MASK OF
I.N.S. TO DO WHAT OTHERWISE THEY COULD NOT HAVE DONE.  THEY DID WHAT
THEY COULD DO ONLY IF THEY HAD GONE TO A JUDICIAL OFFICER PURSUANT TO
THE REQUIREMENTS OF THE FOURTH AMENDMENT, DISCLOSED THEIR EVIDENCE, AND
OBTAINED THE NECESSARY WARRANT FOR THE SEARCHES WHICH THEY MADE. 

IF THE F.B.I. AGENTS HAD GONE TO A MAGISTRATE, ANY SEARCH WARRANT
ISSUED WOULD BY TERMS OF THE FOURTH AMENDMENT HAVE TO "PARTICULARLY"
DESCRIBE "THE PLACE TO BE SEARCHED" AND THE "THINGS TO BE SEIZED."  HOW
MUCH MORE CONVENIENT IT IS FOR THE POLICE TO FIND A WAY AROUND THOSE
SPECIFIC REQUIREMENTS OF THE FOURTH AMENDMENT]  WHAT A HINDRANCE IT IS
TO WORK LABORIOUSLY THROUGH CONSTITUTIONAL PROCEDURES]  HOW MUCH EASIER
TO GO TO ANOTHER OFFICIAL IN THE SAME DEPARTMENT]  THE ADMINISTRATIVE
OFFICER CAN GIVE A WARRANT GOOD FOR UNLIMITED SEARCH.  NO MORE SHOWING
OF PROBABLE CAUSE TO A MAGISTRATE]  NO MORE LIMITATIONS ON WHAT MAY BE
SEARCHED AND WHEN] 

IN REA V. UNITED STATES, 350 U.S. 214, FEDERAL POLICE OFFICERS, WHO
OBTAINED EVIDENCE IN VIOLATION OF FEDERAL LAW GOVERNING SEARCHES AND
SEIZURES AND SO LOST THEIR CASE IN THE FEDERAL COURT, REPAIRED TO A
STATE COURT AND PROPOSED TO USE IT THERE IN A STATE CRIMINAL
PROSECUTION.  THE COURT HELD THAT THE FEDERAL DISTRICT COURT COULD
PROPERLY ENJOIN THE FEDERAL OFFICIAL FROM USING THE ILLEGAL SEARCH AND
SEIZURE AS BASIS FOR TESTIFYING IN THE STATE COURT.  THE FEDERAL RULES
GOVERNING SEARCHES AND SEIZURES, WE HELD, ARE "DESIGNED AS STANDARDS
FOR FEDERAL AGENTS" NO MORE TO BE DEFEATED BY DEVIOUS THAN BY DIRECT
METHODS.  THE PRESENT CASE IS EVEN MORE PALPABLY VULNERABLE.  NO STATE
AGENCY IS INVOLVED.  FEDERAL POLICE SEEK TO DO WHAT IMMIGRATION
OFFICIALS CAN DO TO DEPORT A PERSON BUT WHAT OUR RULES, STATUTES, AND
CONSTITUTION FORBID THE POLICE FROM DOING TO PROSECUTE HIM FOR A
CRIME. 

THE TRAGEDY IN OUR APPROVAL OF THESE SHORT CUTS IS THAT THE
PROTECTION AFFORDED BY THE FOURTH AMENDMENT IS REMOVED FROM AN
IMPORTANT SEGMENT OF OUR LIFE.  WE TODAY FORGET WHAT THE COURT SAID IN
JOHNSON V. UNITED STATES, SUPRA, AT 14, THAT THE FOURTH AMENDMENT
PROVISION FOR "PROBABLE CAUSE" REQUIRES THAT THOSE INFERENCES "BE DRAWN
BY A NEUTRAL AND DETACHED MAGISTRATE" NOT "BY THE OFFICER ENGAGED IN
THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING OUT CRIME."  THIS IS A
PROTECTION GIVEN NOT ONLY TO CITIZENS BUT TO ALIENS AS WELL, AS THE
OPINION OF THE COURT BY IMPLICATION HOLDS.  THE RIGHT "OF THE PEOPLE"
COVERED BY THE FOURTH AMENDMENT CERTAINLY GIVES SECURITY TO ALIENS IN
THE SAME DEGREE THAT "PERSON" IN THE FIFTH AND "THE ACCUSED" IN THE
SIXTH AMENDMENTS ALSO PROTECTS THEM.  SEE WONG WING V. UNITED STATES,
163 U.S. 228, 242.  HERE THE F.B.I. WORKS EXCLUSIVELY THROUGH AN
ADMINISTRATIVE AGENCY - THE I.N.S. - TO ACCOMPLISH WHAT THE FOURTH
AMENDMENT SAYS CAN BE DONE ONLY BY A JUDICIAL OFFICER.  A PROCEDURE
DESIGNED TO SERVE ADMINISTRATIVE ENDS - DEPORTATION - IS CLEVERLY
ADAPTED TO SERVE OTHER ENDS - CRIMINAL PROSECUTION.  WE HAVE HAD LIKE
EXAMPLES OF THIS SAME TREND IN RECENT TIMES.  LIFTING THE REQUIREMENTS
OF THE FOURTH AMENDMENT FOR THE BENEFIT OF HEALTH INSPECTORS WAS
ACCOMPLISHED BY FRANK V. MARYLAND, AS I HAVE SAID.  ALLOWING THE
DEPARTMENT OF JUSTICE RATHER THAN JUDICIAL OFFICERS TO DETERMINE
WHETHER ALIENS WILL BE ENTITLED TO RELEASE ON BAIL PENDING DEPORTATION
HEARINGS IS ANOTHER.  SEE CARLSON V. LANDON, 342 U.S. 524. 

SOME THINGS IN OUR PROTECTIVE SCHEME OF CIVIL RIGHTS ARE ENTRUSTED TO
THE JUDICIARY.  THOSE CONTROLS ARE NOT ALWAYS CONGENIAL TO THE POLICE. 
YET IF WE ARE TO PRESERVE OUR SYSTEM OF CHECKS AND BALANCES AND KEEP
THE POLICE FROM BEING ALL-POWERFUL, THESE JUDICIAL CONTROLS SHOULD BE
METICULOUSLY RESPECTED.  WHEN WE READ THEM OUT OF THE BILL OF RIGHTS BY
ALLOWING SHORT CUTS AS WE DO TODAY AND AS THE COURT DID IN THE FRANK
AND CARLSON CASES, POLICE AND ADMINISTRATIVE OFFICIALS IN THE EXECUTIVE
BRANCH ACQUIRE POWERS INCOMPATIBLE WITH THE BILL OF RIGHTS.    THE
F.B.I. AGENTS STALKED PETITIONER FOR WEEKS AND HAD PLENTY OF TIME TO
OBTAIN JUDICIAL WARRANTS FOR SEARCHING THE PREMISES HE OCCUPIED.  I
WOULD REQUIRE THEM TO ADHERE TO THE COMMAND OF THE FOURTH AMENDMENT AND
NOT EVADE IT BY THE SIMPLE DEVICE OF WEARING THE MASKS OF IMMIGRATION
OFFICIALS WHILE IN FACT THEY ARE PREPARING A CASE FOR CRIMINAL
PROSECUTION. 

FN1  SECTION 242(A) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952,
66 STAT. 208, 8 U.S.C.  SEC. 1252(A), PROVIDES "PENDING A DETERMINATION
OF DEPORTABILITY IN THE CASE OF ANY ALIEN  ...  SUCH ALIEN MAY, UPON
WARRANT OF THE ATTORNEY GENERAL, BE ARRESTED AND TAKEN INTO CUSTODY." 
FN2  IN THE PETTIFORD CASE IT APPEARS THAT A POLICE OFFICER ASSIGNED
TO THE SANITATION DIVISION GAINED ENTRANCE INTO A HOME WITHOUT A
WARRANT AND DISCOVERED THAT THE DEFENDANT WHO OCCUPIED THE PREMISES WAS
ENGAGED IN LOTTERY ACTIVITIES.  HE THEN SIGNALED TO A POLICEMAN IN
CHARGE OF GAMBLING ACTIVITIES WHO WAS WAITING OUTSIDE IN ACCORDANCE
WITH A PRIOR AGREEMENT.  LOTTERY SLIPS WERE SEIZED AND OVER THE
DEFENDANT'S OBJECTION WERE RECEIVED IN EVIDENCE IN A CRIMINAL TRIAL.  A
MOTION FOR A NEW TRIAL WAS GRANTED.  THE SUPREME BENCH OF BALTIMORE
CITY SAID IN ITS OPINION: 

"SECTION 120 OF ARTICLE 12 OF THE BALTIMORE CITY CODE PROVIDES THAT
IF THE COMMISSIONER OF HEALTH HAS CAUSE TO SUSPECT THAT A NUISANCE
EXISTS IN ANY HOME, HE MAY DEMAND ENTRY THEREIN IN THE DAYTIME AND THE
OWNER OR OCCUPIER IS SUBJECT TO A FINE IF ENTRY IS DENIED.  A
CONVICTION UNDER THIS SECTION BY THE CRIMINAL COURT OF BALTIMORE CITY
WAS SUSTAINED BY THE SUPREME COURT OF THE UNITED STATES IN A FIVE TO
FOUR DECISION.  FRANK VS. MARYLAND 359 U.S. 360  ...  . 

     *      *         *         *         * 

"IN THIS CASE, IT IS EVIDENT THAT A PRINCIPAL, IF NOT THE CHIEF
PURPOSE OF THE ENTRY OF THE POLICE OFFICER ASSIGNED TO THE SANITATION
DIVISION WAS TO ENDEAVOR TO SECURE EVIDENCE OF A LOTTERY VIOLATION FOR
HIS COLLEAGUE.  "THE SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY
INTRUSION BY THE POLICE  ...  IS BASIC TO A FREE SOCIETY.'  WOLF VS.
COLORADO, 338 U.S. 25, 27.  AN EXCEPTION TO THAT SECURITY, UPHELD
BECAUSE INDISPENSIBLE FOR THE MAINTENANCE OF THE COMMUNITY HEALTH, IS
NOT TO BE USED TO COVER SEARCHES WITHOUT WARRANTS INCONSISTENT WITH THE
CONCEPTIONS OF HUMAN RIGHTS EMBODIED IN OUR STATE AND FEDERAL
CONSTITUTIONS." 

FN3  NOTE 1, SUPRA. 

FN4  IMMIGRATION OFFICIALS (WHO OFTEN CLAIM THAT THEIR ACTIONS HAVE
AN ADMINISTRATIVE FINALITY BEYOND THE REACH OF COURTS, SEE LUDECKE V.
WATKINS, 335 U.S. 160; JAY V. BOYD, 351 U.S. 345) HAVE NO AUTHORITY TO
DETAIN SUSPECTS FOR SECRET INTERROGATION.  SEE UNITED STATES V. MINKER,
350 U.S. 179. 

FN5  NOTE 1, SUPRA. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

THIS IS A NOTORIOUS CASE, WITH A NOTORIOUS DEFENDANT.  YET WE MUST
TAKE CARE TO ENFORCE THE CONSTITUTION WITHOUT REGARD TO THE NATURE OF
THE CRIME OR THE NATURE OF THE CRIMINAL.  THE FOURTH AMENDMENT PROTECTS
"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS,
AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES."  THIS RIGHT
IS A BASIC ONE OF ALL THE PEOPLE, WITHOUT EXCEPTION; AND THIS COURT
RULED IN WEEKS V. UNITED STATES, 232 U.S. 383, THAT THE FRUITS OF
GOVERNMENTAL VIOLATION OF THIS GUARANTEE COULD NOT BE USED IN A
CRIMINAL PROSECUTION.  THE AMENDMENT'S PROTECTION IS THUS MADE
EFFECTIVE FOR EVERYONE ONLY BY UPHOLDING IT WHEN INVOKED BY THE WORST
OF MEN. 

THE OPINION OF THE COURT MAKES IT PLAIN THAT THE SEIZURE OF CERTAIN
OF THE ITEMS OF PETITIONER TAKEN FROM HIS ROOM AT THE HOTEL LATHAM AND
USED IN EVIDENCE AGAINST HIM MUST DEPEND UPON THE EXISTENCE OF A BROAD
POWER, WITHOUT A WARRANT, TO SEARCH THE PREMISES OF ONE ARRESTED, IN
CONNECTION WITH AND "INCIDENTAL" TO HIS ARREST.  THIS POWER IS OF THE
SORT RECOGNIZED BY HARRIS V. UNITED STATES, 331 U.S. 145, AND LATER
ASSERTED EVEN WHERE THE ARRESTING OFFICERS, AS HERE, HAD AMPLE TIME AND
OPPORTUNITY TO SECURE A SEARCH WARRANT.  UNITED STATES V. RABINOWITZ,
339 U.S. 56, OVERRULING TRUPIANO V. UNITED STATES, 334 U.S. 699.  THE
LEADING EARLY CASES DO NOT RECOGNIZE ANY SUCH POWER TO MAKE A SEARCH
GENERALLY THROUGH PREMISES ATTENDANT UPON AN ARREST.  SEE GO-BART
IMPORTING CO. V. UNITED STATES, 282 U.S. 344; UNITED STATES V.
LEFKOWITZ, 285 U.S. 452.  (FN1) 

THE GENERAL QUESTION HAS BEEN EXTENSIVELY CANVASSED HERE, IN THE
GENERAL CONTEXT OF AN ARREST FOR CRIME, IN THE HARRIS, TRUPIANO AND
RABINOWITZ CASES.  WHETHER HARRIS AND RABINOWITZ SHOULD NOW BE FOLLOWED
ON THEIR OWN FACTS IS A QUESTION WITH WHICH THE COURT IS NOT NOW
FACED.  RATHER THE QUESTION IS WHETHER THE DOCTRINE OF THOSE CASES
SHOULD BE EXTENDED TO A NEW AND DIFFERENT SET OF FACTS - FACTS WHICH
PRESENT A SEARCH MADE UNDER CIRCUMSTANCES MUCH LESS CONSISTENT WITH THE
FOURTH AMENDMENT'S PROHIBITION AGAINST UNREASONABLE SEARCHES THAN ANY
WHICH THIS COURT HAS HITHERTO APPROVED.  FACTUAL DIFFERENCES WEIGH
HEAVILY IN THIS AREA:  "THERE IS NO FORMULA FOR THE DETERMINATION OF
REASONABLENESS.  EACH CASE IS TO BE DECIDED ON ITS OWN FACTS AND
CIRCUMSTANCES."  GO-BART IMPORTING CO. V. UNITED STATES, SUPRA, AT
357.  IN HARRIS AND RABINOWITZ, THE BROAD SEARCH WAS PERFORMED AS AN
INCIDENT TO AN ARREST FOR CRIME UNDER WARRANTS LAWFULLY ISSUED.  331
U.S., AT 148; 339 U.S., AT 58.  THE ISSUANCE OF THESE WARRANTS IS BY NO
MEANS AUTOMATIC - IT IS CONTROLLED BY CONSTITUTIONALLY PRESCRIBED
STANDARD.  IT THUS COULD BE HELD THAT SUFFICIENT PROTECTION WAS GIVEN
THE INDIVIDUAL WITHOUT THE EXECUTION OF A SECOND WARRANT FOR THE
SEARCH.  CF.  CLARK, J., DISSENTING IN UNITED STATES V. RABINOWITZ, 176
F.2D 732, 736, REVERSED, 339 U.S. 56.  AND WHILE A SEARCH GENERALLY
THROUGH PREMISES "INCIDENT" TO AN ARREST FOR CRIME WITHOUT A WARRANT
HAS BEEN SANCTIONED ONLY INFERENTIALLY HERE, (FN2) EVEN IF SUCH A
SEARCH BE DEEMED PERMISSIBLE UNDER THE FOURTH AMENDMENT, IT WOULD NOT
GO SO FAR AS THE RESULT HERE.  SUCH AN ARREST MAY CONSTITUTIONALLY BE
MADE ONLY UPON PROBABLE CAUSE, THE EXISTENCE OF WHICH IS SUBJECT TO
JUDICIAL EXAMINATION, SEE HENRY V. UNITED STATES, 361 U.S. 98, 100; AND
SUCH AN ARREST DEMANDS THE PROMPT BRINGING OF THE PERSON ARRESTED
BEFORE A JUDICIAL OFFICER, WHERE THE EXISTENCE OF PROBABLE CAUSE IS TO
BE INQUIRED INTO.  FED. RULES CRIM. PROC., 5(A) AND (C).  THIS COURT
HAS BEEN ASTUTE TO FASHION METHODS OF ENSURING THE DUE OBSERVANCE OF
THESE SAFEGUARDS.  HENRY V. UNITED STATES, SUPRA; MALLORY V. UNITED
STATES, 354 U.S. 449; MCNABB V. UNITED STATES, 318 U.S. 332. 

EVEN ASSUMING THAT THE POWER OF CONGRESS OVER ALIENS MAY BE AS GREAT
AS WAS SAID IN GALVAN V. PRESS, 347 U.S. 522, AND THAT DEPORTATION MAY
BE STYLED "CIVIL," HARISIADES V. SHAUGHNESSY, 342 U.S. 580, 594, IT
DOES NOT FOLLOW THAT CONGRESS MAY STRIP ALIENS OF THE PROTECTIONS OF
THE FOURTH AMENDMENT AND AUTHORIZE UNREASONABLE SEARCHES OF THEIR
PREMISES, BOOKS AND PAPERS.  EVEN IF CONGRESS COULD MAKE THE
EXCLUSIONARY SANCTON OF THE AMENDMENT INAPPLICABLE IN DEPORTATION
PROCEEDINGS, THE FRUITS OF THE SEARCH HERE WERE USED IN A PROSECUTION
WHOSE CRIMINAL CHARACTER NO DIALECTIC CAN CONCEAL.  CLEARLY THE
CONSEQUENCE OF THE FOURTH AMENDMENT IN SUCH A TRIAL IS THAT THE FRUITS
OF SUCH A SEARCH MAY NOT BE GIVEN IN EVIDENCE, UNDER THE RULE DECLARED
IN WEEKS V. UNITED STATES, SUPRA.  WE NEED NOT, IN MY VIEW, INQUIRE AS
TO WHETHER THE SORT OF "ADMINISTRATIVE" ARREST MADE HERE IS
CONSTITUTIONALLY VALID AS TO PERMIT THE OFFICERS TO HOLD PETITIONER'S
PERSON FOR DEPORTATION PROCEEDINGS.  WITH THE COURT, THIS ISSUE MAY BE
TREATED AS NOT PROPERLY BEFORE US FOR OUR CONSIDERATION, AND THE ARREST
MAY BE TREATED FOR THE PURPOSES OF THIS CASE AS LAWFUL IN ITSELF.  BUT
EVEN WITH HARRIS AND RABINOWITZ, THAT DOES NOT CONCLUDE THE MATTER AS
TO THE SEARCH.  IT IS PATENT THAT THE SORT OF SEARCH PERMITTED BY THOSE
CASES, AND NECESSARY TO SUSTAIN THE SEIZURES HERE, GOES BEYOND WHAT IS
REASONABLY RELATED TO THE MECHANICS OF THE ARREST ITSELF - ENSURING THE
SAFETY OF THE ARRESTING OFFICERS AND THE SECURITY OF THE ARREST AGAINST
THE PRISONER'S ESCAPE.  SINCE IT DOES, I THINK IT PLAIN THAT BEFORE IT
CAN BE CONCLUDED HERE THAT THE SEARCH WAS NOT AN UNREASONABLE ONE,
THERE MUST BE SOME INQUIRY INTO THE OVER-ALL PROTECTION GIVEN THE
INDIVIDUAL BY THE TOTALITY OF THE PROCESSES NECESSARY TO THE ARREST AND
THE SEIZURE.  HERE THE ARREST, WHILE HAD ON WHAT IS CALLED A WARRANT,
WAS MADE TOTALLY WITHOUT THE INTERVENTION OF AN INDEPENDENT MAGISTRATE;
IT WAS MADE ON THE AUTHORIZATION OF ONE ADMINISTRATIVE OFFICIAL TO
ANOTHER.  AND AFTER THE PETITIONER WAS TAKEN INTO CUSTODY, THERE WAS NO
OBLIGATION UPON THE ADMINISTRATIVE OFFICIALS WHO ARRESTED HIM TO TAKE
HIM BEFORE ANY INDEPENDENT OFFICER, SITTING UNDER THE CONDITIONS OF
PUBLICITY THAT CHARACTERIZE OUR JUDICIAL INSTITUTIONS, AND JUSTIFY WHAT
HAD BEEN DONE.  (FN3)  CONCRETELY, WHAT HAPPENED INSTEAD WAS THIS:
PETITIONER, UPON HIS ARREST, WAS TAKEN TO A LOCAL ADMINISTRATIVE
HEADQUARTERS AND THEN FLOWN IN A SPECIAL AIRCRAFT TO A SPECIAL
DETENTION CAMP OVER 1,000 MILES AWAY.  HE WAS INCARCERATED IN SOLITARY
CONFINEMENT THERE.  AS FAR AS THE WORLD KNEW, HE HAD VANISHED.  HE WAS
QUESTIONED DAILY AT THE PLACE OF INCARCERATION FOR OVER THREE WEEKS. 
AN EXECUTIVE PROCEDURE AS TO HIS DEPORTABILITY WAS HAD, AT THE CAMP,
AFTER A FEW DAYS, BUT THERE WAS NEVER ANY INDEPENDENT INQUIRY OR
JUDICIAL CONTROL OVER THE CIRCUMSTANCES OF THE ARREST AND THE SEIZURE
UNTIL OVER FIVE WEEKS AFTER HIS ARREST, WHEN, AT THE DETENTION CAMP, HE
WAS SERVED WITH A BENCH WARRANT FOR HIS ARREST ON CRIMINAL CHARGES,
UPON AN INDICTMENT. 

THE FOURTH AMENDMENT IMPOSES SUBSTANTIVE STANDARDS FOR SEARCHES AND
SEIZURES; BUT WITH THEM ONE OF THE IMPORTANT SAFEGUARDS IT ESTABLISHES
IS A PROCEDURE; AND CENTRAL TO THIS PROCEDURE IS AN INDEPENDENT CONTROL
OVER THE ACTIONS OF OFFICERS EFFECTING SEARCHES OF PRIVATE PREMISES. 
"INDEED, THE INFORMED AND DELIBERATE DETERMINATIONS OF MAGISTRATES
EMPOWERED TO ISSUE WARRANTS AS TO WHAT SEARCHES AND SEIZURES ARE
PERMISSIBLE UNDER THE CONSTITUTION ARE TO BE PREFERRED OVER THE HURRIED
ACTION OF OFFICERS AND OTHERS WHO MAY HAPPEN TO MAKE ARRESTS."  UNITED
STATES V. LEFKOWITZ, SUPRA, AT 464.  "ABSENT SOME GRAVE EMERGENCY, THE
FOURTH AMENDMENT HAS INTERPOSED A MAGISTRATE BETWEEN THE CITIZEN AND
THE POLICE."  MCDONALD V. UNITED STATES, 335 U.S. 451, 455.  IT IS ONE
THING TO SAY THAT AN ADEQUATE SUBSTITUTE FOR THIS SORT OF INTERVENTION
BY A MAGISTRATE CAN BE FOUND IN THE STRICT PROTECTIONS WITH WHICH
FEDERAL CRIMINAL PROCEDURE SURROUNDS THE MAKING OF A CRIMINAL ARREST -
WHERE THE ACTION OF THE OFFICERS MUST RECEIVE AN ANTECEDENT OR
IMMEDIATELY SUBSEQUENT INDEPENDENT SCRUTINY.  IT GOES MUCH FURTHER TO
SAY THAT SUCH A SUBSTITUTE CAN BE FOUND IN THE EXECUTIVE PROCESSES
EMPLOYED HERE.  THE QUESTION IS NOT WHETHER THEY ARE CONSTITUTIONALLY
ADEQUATE IN THEIR OWN TERMS - WHETHER THEY ARE A PROPER MEANS OF TAKING
INTO CUSTODY ONE NOT CHARGED WITH A CRIME.  THE QUESTION IS RATHER
WHETHER THEY FURNISH A CONTEXT IN WHICH A SEARCH GENERALLY THROUGH
PREMISES CAN BE SAID TO BE A REASONABLE ONE UNDER THE FOURTH
AMENDMENT.  THESE ARREST PROCEDURES, AS EXEMPLIFIED HERE, DIFFER AS
NIGHT FROM DAY FROM THE PROCESSES OF AN ARREST FOR CRIME.  WHEN THE
POWER TO MAKE A BROAD, WARRANTLESS SEARCH IS ADDED TO THEM, WE CREATE A
COMPLETE CONCENTRATION OF POWER IN EXECUTIVE OFFICERS OVER THE PERSON
AND EFFECTS OF THE INDIVIDUAL.  WE COMPLETELY REMOVE ANY INDEPENDENT
CONTROL OVER THE POWERS OF EXECUTIVE OFFICERS TO MAKE SEARCHES.  THEY
MAY TAKE ANY MAN THEY THINK TO BE A DEPORTABLE ALIEN INTO THEIR OWN
CUSTODY, HOLD HIM WITHOUT ARRAIGNMENT OR BOND, AND, HAVING BEEN CAREFUL
TO APPREHEND HIM AT HOME, MAKE A SEARCH GENERALLY THROUGH HIS
PREMISES.  I CANNOT SEE HOW THIS CAN BE SAID TO BE CONSISTENT WITH THE
FOURTH AMENDMENT'S COMMAND; IT WAS, RATHER, AGAINST SUCH A
CONCENTRATION OF EXECUTIVE POWER OVER THE PRIVACY OF THE INDIVIDUAL
THAT THE FOURTH AMENDMENT WAS RAISED.  I DO NOT THINK THE HARRIS AND
RABINOWITZ CASES HAVE TAKEN US TO THIS POINT. 

IF THE SEARCH HERE WERE OF THE SORT THE FOURTH AMENDMENT
CONTEMPLATED, THERE WOULD BE NO NEED FOR THE ELABORATE, IF SOMEWHAT
POINTLESS, INQUIRY THE COURT MAKES INTO THE "GOOD FAITH" OF THE
ARREST.  ONCE IT IS ESTABLISHED THAT A SIMPLE EXECUTIVE ARREST OF ONE
AS A DEPORTABLE ALIEN GIVES THE ARRESTING OFFICERS THE POWER TO SEARCH
HIS PREMISES, WHAT PRECISE STATE OF MIND ON THE PART OF THE OFFICERS
WILL MAKE THE ARREST A "SUBTERFUGE" FOR THE START OF CRIMINAL
PROCEEDINGS, AND RENDER THE SEARCH UNREASONABLE?  WE ARE NOT, I FEAR,
GIVEN ANY WORKABLE ANSWER, AND OF COURSE THE PRACTICAL PROBLEMS
RELATIVE TO THE TRIAL OF SUCH A MATTER HARDLY NEED ELABORATION; BUT THE
COURT VERBALIZES THE ISSUE AS "WHETHER THE DECISION TO PROCEED
ADMINISTRATIVELY TOWARD DEPORTATION WAS INFLUENCED BY, AND WAS CARRIED
OUT FOR, A PURPOSE OF AMASSING EVIDENCE IN THE PROSECUTION FOR CRIME." 
BUT UNDER TODAY'S RULING, EVERY ADMINISTRATIVE ARREST OFFERS THIS
POSSIBILITY OF A FACILE SEARCH, THEORETICALLY FOR THINGS CONNECTED WITH
UNLAWFUL PRESENCE IN THE COUNTRY, THAY MAY TURN UP EVIDENCE OF CRIME;
AND THIS POSSIBILITY WILL BE WELL KNOWN TO ARRESTING OFFICERS.  PERHAPS
THE QUESTION IS HOW MUCH BASIS THE OFFICERS HAD TO SUSPECT THE PERSON
OF CRIME; BUT IT WOULD APPEAR A STRANGE TEST AS TO WHETHER A SEARCH
WHICH TURNS UP CRIMINAL EVIDENCE IS UNREASONABLE, THAT THE SEARCH IS
THE MORE JUSTIFIABLE THE LESS THERE WAS ANTECEDENT PROBABLE CAUSE TO
SUSPECT THE DEFENDANT OF CRIME.  IF THE SEARCH WERE MADE ON A VALID
WARRANT, THERE WOULD BE NO SUCH ISSUE EVEN IF IT TURNED UP MATTER
RELEVANT TO ANOTHER CRIME.  SEE GOULED V. UNITED STATES, 225 U.S. 298,
311-312.  EXTERNAL PROCEDURAL CONTROL IN ACCORD WITH THE BASIC DEMANDS
OF THE FOURTH AMENDMENT REMOVES THE GROUNDS FOR ABUSE; BUT THE COURT'S
ATTITUDE HERE MUST BE BASED ON A RECOGNITION OF THE GREAT POSSIBILITIES
OF ABUSE ITS DECISION LEAVES IN THE PRESENT SITUATION.  THESE
POSSIBILITIES HAVE BEEN RECOGNIZED BEFORE, IN A CASE POSING LESS
DANGER:  "ARREST UNDER A WARRANT FOR A MINOR OR A TRUMPED-UP CHARGE HAS
BEEN FAMILIAR PRACTICE IN THE PAST, IS A COMMONPLACE IN THE POLICE
STATE OF TODAY, AND TOO WELL-KNOWN IN THIS COUNTRY  ...  .  THE
PROGRESS IS TOO EASY FROM POLICE ACTION UNSCRUTINIZED BY JUDICIAL
AUTHORIZATION TO THE POLICE STATE."  UNITED STATES V. RABINOWITZ,
SUPRA, AT 82 (DISSENTING OPINION).  WHERE A SPECIES OF ARREST IS
AVAILABLE THAT IS SUBJECT TO NO JUDICIAL CONTROL, THE POSSIBILITIES
BECOME MORE AND MORE SERIOUS.  THE REMEDY IS NOT TO INVITE FRUITLESS
LITIGATION INTO THE PURITY OF OFFICIAL MOTIVES, OR THE SPECIFIC
DIRECTION OF OFFICIAL PURPOSES.  ONE MAY ALWAYS ASSUME THAT THE
OFFICERS ARE ZEALOUS TO PERFORM THEIR DUTY.  THE REMEDY IS RATHER TO
RECOGNIZE THAT THE POWER TO PERFORM A SEARCH GENERALLY THROUGHOUT
PREMISES UPON A PURELY EXECUTIVE ARREST IS SO UNCONFINED BY ANY
SAFEGUARDS THAT IT CANNOT BE COUNTENANCED AS CONSISTENT WITH THE FOURTH
AMENDMENT. 

ONE MORE WORD.  WE ARE TOLD THAT THE GOVERNMENTAL POWER TO MAKE A
WARRANTLESS SEARCH MIGHT BE GREATER WHERE THE OBJECT OF THE SEARCH IS
NOT RELATED TO CRIME BUT TO SOME OTHER "CIVIL" PROCEEDING - SUCH AS
MATTER BEARING ON THE ISSUE WHETHER A MAN SHOULD FORCIBLY BE SENT FROM
THE COUNTRY.  THE DISTINCTION IS RATHER HOLLOW HERE, WHERE THE PROOFS
THAT TURN UP ARE IN FACT GIVEN IN EVIDENCE IN A CRIMINAL PROSECUTION. 
AND THE DISTINCTION, AGAIN, INVITES A TRIAL OF THE OFFICERS' PURPOSES. 
BUT IN ANY EVENT, I THINK IT PERVERTS THE AMENDMENT TO MAKE THIS
DISTINCTION.  THE AMENDMENT STATES ITS OWN PURPOSE, THE PROTECTION OF
THE PRIVACY OF THE INDIVIDUAL AND OF HIS PROPERTY AGAINST THE
INCURSIONS OF OFFICIALS:  THE "RIGHT OF THE PEOPLE TO BE SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS."  SEE BOYD V. UNITED
STATES, 116 U.S. 616, 627.  LIKE MOST OF THE BILL OF RIGHTS IT WAS NOT
DESIGNED TO BE A SHELTER FOR CRIMINALS, BUT A BASIC PROTECTION FOR
EVERYONE; TO BE SURE, IT MUST BE UPHELD WHEN ASSERTED BY CRIMINALS, IN
ORDER THAT IT MAY BE AT ALL EFFECTIVE, BUT IT "REACHES ALL ALIKE,
WHETHER ACCUSED OF CRIME OR NOT."  WEEKS V. UNITED STATES, SUPRA, 392. 
IT IS THE INDIVIDUAL'S INTEREST IN PRIVACY WHICH THE AMENDMENT
PROTECTS, AND THAT WOULD NOT APPEAR TO FLUCTUATE WITH THE "INTENT" OF
THE INVADING OFFICERS.  IT IS TRUE THAT THE GREATEST AND THE MOST
EFFECTIVE PREVENTIVE AGAINST UNLAWFUL SEARCHES THAT HAS BEEN DEVISED IS
THE EXCLUSION OF THEIR FRUITS FROM CRIMINAL EVIDENCE, SEE WEEKS V.
UNITED STATES, SUPRA; BOYD V. UNITED STATES, SUPRA; BUT IT IS STRANGE
REASONING TO INFER FROM THIS THAT THE CENTRAL THRUST OF THE GUARANTEE
IS TO PROTECT AGAINST A SEARCH FOR SUCH EVIDENCE.  THE ARGUMENT THAT IT
IS SEEMS NO MORE CONVINCING TO ME NOW THAN WHEN IT WAS MADE BY THE
COURT IN FRANK V. MARYLAND, 359 U.S. 360.  TO BE SURE, THE COURT IN
BOYD V. UNITED STATES, SUPRA, AND IN SUBSEQUENT CASES (FN4) HAS
COMMENTED UPON THE INTIMATE RELATIONSHIP BETWEEN THE PRIVILEGE AGAINST
UNLAWFUL SEARCHES AND SEIZURES AND THAT AGAINST SELF-INCRIMINATION. 
THIS HAS BEEN SAID TO BE ERRONEOUS HISTORY; (FN5) IF IT WAS, IT WAS
EVEN LESS THAN A HARMLESS ERROR; IT WAS PART OF THE PROCESS THROUGH
WHICH THE FOURTH AMENDMENT, BY MEANS OF THE EXCLUSIONARY RULE, HAS
BECOME MORE THAN A DEAD LETTER IN THE FEDERAL COURTS.  CERTAINLY THIS
PUTATIVE RELATIONSHIP BETWEEN THE GUARANTEES IS NOT TO BE USED AS A
BASIS OF A STINTING CONSTRUCTION OF EITHER - IT WAS THE BOYD CASE
ITSELF (FN6) WHICH SET WHAT MIGHT HAVE BEEN HOPED TO BE THE SPIRIT OF
LATER CONSTRUCTION OF THESE AMENDMENTS BY DECLARING THAT THE START OF
ABUSE CAN "ONLY BE OBVIATED BY ADHERING TO THE RULE THAT CONSTITUTIONAL
PROVISIONS FOR THE SECURITY OF PERSON AND PROPERTY SHOULD BE LIBERALLY
CONSTRUED."  116 U.S., AT 635. 

SINCE EVIDENCE WAS INTRODUCED AGAINST PETITIONER WHICH HAD BEEN
OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL GUARANTEES AS EMBODIED IN
THE FOURTH AMENDMENT, I WOULD REVERSE HIS CONVICTION FOR A NEW TRIAL ON
THE EVIDENCE NOT SUBJECT TO THIS OBJECTION. 

FN1  EARLIER EXPRESSIONS LOOKING ON THE OTHER WAY, AGNELLO V. UNITED
STATES, 269 U.S. 20, 30; MARRON V. UNITED STATES, 275 U.S. 192, 198
199, WERE PUT IN PROPER PERSPECTIVE BY THEIR AUTHOR IN GO-BART AND
LEFKOWITZ.  SEE 282 U.S., AT 358; 285 U.S., AT 465. 

FN2  SEE UNITED STATES V. RABINOWITZ, SUPRA, AT 60. 

FN3  THIS PROCEDURE IS STATUTORILY BASED ON SEC. 242(A) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 208, 8 U.S.C. SEC.
1252(A). 

FN4  SEE, E.G., GOULED V. UNITED STATES, SUPRA, AT 306; UNITED STATES
V. LEFKOWITZ, SUPRA, AT 466-467.  THE WEEKS CASE ITSELF, THOUGH DRAWING
GREAT SUPPORT FROM BOYD, APPEARS TO REST MOST HEAVILY ON THE FOURTH
AMENDMENT ITSELF. 

FN5  THE FAMOUS ATTACK ON THE BOYD CASE'S HISTORICAL BASIS IS, OF
COURSE, TO BE FOUND IN 8 WIGMORE, EVIDENCE (3D ED. 1940), SECS, 2184,
2264.  THE ATTACK IS INCIDENT TO WIGMORE'S STRICTURES ON THE
EXCLUSIONARY RULE.  ID., SECS. 2183-2184. 

FN6  IT IS NOT WITHOUT INTEREST TO NOTE, TOO, THAT THE BOYD CASE
ITSELF INVOLVED A SEARCH NOT IN CONNECTION WITH A PROSECUTION TO IMPOSE
FINE OR IMPRISONMENT, BUT SIMPLY WITH AN ACTION TO FORFEIT 35 CASES OF
PLATE GLASS SAID TO HAVE BEEN IMPORTED INTO THE COUNTRY UNDER A FALSE
CUSTOMS DECLARATION. 
..END :




















JONES V. UNITED STATES 362 U.S. 257 


NO. 69.  ARGUED JANUARY 21, 1960 - DECIDED MARCH 28, 1960 - 104 U.S.
APP. D.C. 345, 262 F.2D 234, JUDGMENT VACATED AND CASE REMANDED. 


1.  WHILE PETITIONER WAS IN AN APARTMENT WHICH HE TESTIFIED LATER WAS
NOT HIS BUT THAT OF A FRIEND WHO PERMITTED HIM TO USE IT, THE APARTMENT
WAS SEARCHED BY FEDERAL OFFICERS ARMED WITH A SEARCH WARRANT, NARCOTICS
WERE FOUND AND SEIZED, AND PETITIONER WAS ARRESTED AND CHARGED WITH
VIOLATING THE NARCOTICS LAWS.  HE MOVED TO SUPPRESS THE EVIDENCE SO
SEIZED ON THE GROUND THAT THE SEARCH WAS ILLEGAL.  HELD:  PETITIONER
WAS A "PERSON AGGRIEVED" WITHIN THE MEANING OF RULE 41(E) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE, AND HE HAD STANDING TO MAKE THE
MOTION UNDER THAT RULE.  PP. 260-267. 

2.  ISSUANCE OF THE SEARCH WARRANT HERE INVOLVED WAS BASED SOLELY ON
AN AFFIDAVIT BY A FEDERAL NARCOTICS OFFICER RECITING THAT:  (1) HE HAD
RECEIVED INFORMATION FROM AN UNNAMED INFORMER THAT PETITIONER AND
ANOTHER PERSON WERE INVOLVED IN ILLICIT NARCOTICS TRAFFIC AND KEPT A
SUPPLY OF HEROIN ON HAND IN THE APARTMENT AND THAT THE INFORMER HAD
PURCHASED NARCOTICS FROM THEM IN THE APARTMENT; (2) INFORMATION
PREVIOUSLY RECEIVED FROM THIS INFORMER HAD BEEN CORRECT; (3) THE SAME
INFORMATION HAD BEEN RECEIVED FROM OTHER SOURCES; (4) PETITIONER AND
HIS ASSOCIATE WERE KNOWN TO BE DRUG ADDICTS; AND (5) THE AFFIANT
BELIEVED THAT ILLICIT DRUGS WERE BEING SECRETED IN THE APARTMENT BY
PETITIONER AND ANOTHER PERSON.  HELD:  THIS WAS SUFFICIENT EVIDENCE OF
PROBABLE CAUSE TO JUSTIFY ISSUANCE OF THE SEARCH WARRANT.  PP. 267
272. 

3.  WITHOUT HAVING DONE SO IN THE DISTRICT COURT, PETITIONER ATTACKED
IN THE COURT OF APPEALS THE LEGALITY OF THE SEARCH, ON THE GROUND THAT
THE WARRANT WAS NOT EXECUTED IN CONFORMITY WITH 18 U.S.C. SEC. 3109. 
THE COURT OF APPEALS FULLY CONSIDERED THE CLAIM AND REJECTED IT.  THE
GOVERNMENT DID NOT CONTEND THAT THE ISSUE WAS NOT PROPERLY BEFORE THIS
COURT.  HELD:  THE QUESTION IS OPEN TO DECISION BY THIS COURT; BUT IT
CANNOT BE RESOLVED SATISFACTORILY ON THE RECORD.  THEREFORE, THE
JUDGMENT OF THE COURT OF APPEALS SUSTAINING PETITIONER'S CONVICTION IS
VACATED, AND THE CASE IS REMANDED TO THE DISTRICT COURT TO CONSIDER
THIS ISSUE.  PP. 272-273. 

JONES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROSECUTION FOR VIOLATION OF FEDERAL NARCOTICS LAWS.  IN
THE FIRST COUNT OF A TWO-COUNT INDICTMENT PETITIONER WAS CHARGED WITH
HAVING "PURCHASED, SOLD, DISPENSED AND DISTRIBUTED" NARCOTICS IN
VIOLATION OF 26 U.S.C. SEC. 4704(A), THAT IS, NOT IN OR FROM THE
"ORIGINAL STAMPED PACKAGE."  IN THE SECOND COUNT PETITIONER WAS CHARGED
UNDER 21 U.S.C.  SEC. 174 WITH HAVING "FACILITATED THE CONCEALMENT AND
SALE OF" THE SAME NARCOTICS, KNOWING THEM TO HAVE BEEN IMPORTED
ILLEGALLY INTO THE UNITED STATES.  PETITIONER WAS FOUND GUILTY ON BOTH
COUNTS AND SENTENCED TO SEVEN YEARS' IMPRISONMENT.  THE COURT OF
APPEALS, ONE JUDGE DISSENTING, AFFIRMED THE CONVICTION.  104 U.S. APP.
D.C. 345, 262 F.2D 234.  SINCE THE CASE PRESENTED IMPORTANT QUESTIONS
IN THE ADMINISTRATION OF CRIMINAL JUSTICE, MORE PARTICULARLY A
DEFENDANT'S STANDING TO CHALLENGE THE LEGALITY OF A SEARCH IN THE
CIRCUMSTANCES OF THIS CASE, AS WELL AS THE LEGALITY OF THE PARTICULAR
SEARCH SHOULD STANDING BE ESTABLISHED, WE GRANTED CERTIORARI.  359 U.S.
988. 

BOTH STATUTORY PROVISIONS UNDER WHICH PETITIONER WAS PROSECUTED
PERMIT CONVICTION UPON PROOF OF THE DEFENDANT'S POSSESSION OF
NARCOTICS, AND IN THE CASE OF 26 U.S.C. SEC. 4704(A) OF THE ABSENCE OF
THE APPROPRIATE STAMPS.  POSSESSION WAS THE BASIS OF THE GOVERNMENT'S
CASE AGAINST PETITIONER.  THE EVIDENCE AGAINST HIM MAY BE BRIEFLY
SUMMARIZED.  HE WAS ARRESTED IN AN APARTMENT IN THE DISTRICT OF
COLUMBIA BY FEDERAL NARCOTICS OFFICERS, WHO WERE EXECUTING A WARRANT TO
SEARCH FOR NARCOTICS.  THOSE OFFICERS FOUND NARCOTICS, WITHOUT
APPROPRIATE STAMPS, AND NARCOTICS PARAPHERNALIA IN A BIRD'S NEST IN AN
AWNING JUST OUTSIDE A WINDOW IN THE APARTMENT.  ANOTHER OFFICER,
STATIONED OUTSIDE THE BUILDING, HAD A SHORT TIME BEFORE SEEN PETITIONER
PUT HIS HAND ON THE AWNING.  UPON THE DISCOVERY OF THE NARCOTICS AND
THE PARAPHERNALIA PETITIONER HAD ADMITTED TO THE OFFICERS THAT SOME OF
THESE WERE HIS AND THAT HE WAS LIVING IN THE APARTMENT. 

PRIOR TO TRIAL PETITIONER DULY MOVED TO SUPPRESS THE EVIDENCE
OBTAINED THROUGH THE EXECUTION OF THE SEARCH WARRANT ON THE GROUND THAT
THE WARRANT HAD BEEN ISSUED WITHOUT A SHOWING OF PROBABLE CAUSE.  THE
GOVERNMENT CHALLENGED PETITIONER'S STANDING TO MAKE THIS MOTION BECAUSE
PETITIONER ALLEGED NEITHER OWNERSHIP OF THE SEIZED ARTICLES NOR AN
INTEREST IN THE APARTMENT GREATER THAN THAT OF AN "INVITEE OR GUEST." 
THE DISTRICT COURT AGREED TO TAKE EVIDENCE ON THE ISSUE OF PETITIONER'S
STANDING.  ONLY PETITIONER GAVE EVIDENCE.  ON DIRECT EXAMINATION HE
TESTIFIED THAT THE APARTMENT BELONGED TO A FRIEND, EVANS, WHO HAD GIVEN
HIM THE USE OF IT, AND A KEY, WITH WHICH PETITIONER HAD ADMITTED
HIMSELF ON THE DAY OF THE ARREST.  ON CROSS-EXAMINATION PETITIONER
TESTIFIED THAT HE HAD A SUIT AND SHIRT AT THE APARTMENT, THAT HIS HOME
WAS ELSEWHERE, THAT HE PAID NOTHING FOR THE USE OF THE APARTMENT, THAT
EVANS HAD LET HIM USE IT "AS A FRIEND," THAT HE HAD SLEPT THERE "MAYBE
A NIGHT," AND THAT AT THE TIME OF THE SEARCH EVANS HAD BEEN AWAY IN
PHILADELPHIA FOR ABOUT FIVE DAYS. 

SOLELY ON THE BASIS OF PETITIONER'S LACK OF STANDING TO MAKE IT, THE
DISTRICT JUDGE DENIED PETITIONER'S MOTION TO SUPPRESS.  WHEN THE CASE
CAME ON FOR TRIAL BEFORE A DIFFERENT JUDGE, THE MOTION TO SUPPRESS WAS
RENEWED AND WAS DENIED ON THE BASIS OF THE PRIOR RULING.  AN
UNSUCCESSFUL OBJECTION WAS MADE WHEN THE SEIZED ITEMS WERE OFFERED IN
EVIDENCE AT THE TRIAL. 

IN AFFIRMING PETITIONER'S CONVICTION THE COURT OF APPEALS AGREED WITH
THE DISTRICT COURT THAT PETITIONER LACKED STANDING, BUT PROCEEDED TO
RULE THAT EVEN IF IT WERE TO FIND THAT PETITIONER HAD STANDING, IT
WOULD HOLD THE EVIDENCE TO HAVE BEEN LAWFULLY RECEIVED.  A CHALLENGE TO
THE SEARCH WHICH PETITIONER HAD NOT MADE IN THE DISTRICT COURT, NAMELY,
THAT THE METHOD OF EXECUTING THE WARRANT HAD BEEN ILLEGAL, WAS
CONSIDERED BY THE COURT OF APPEALS AND REJECTED, WHILE THE CONTENTION
PETITIONER HAD MADE BELOW, THAT THERE HAD BEEN INSUFFICIENT CAUSE TO
ISSUE THE WARRANT, WAS REJECTED WITHOUT DISCUSSION. 

THE ISSUE OF PETITIONER'S STANDING IS TO BE DECIDED WITH REFERENCE TO
RULE 41(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  THIS IS A
STATUTORY DIRECTION GOVERNING THE SUPPRESSION OF EVIDENCE ACQUIRED IN
VIOLATION OF THE CONDITIONS VALIDATING A SEARCH.  IT IS DESIRABLE TO
SET FORTH THE RULE. 

"A PERSON AGGRIEVED BY AN UNLAWFUL SEARCH AND SEIZURE MAY MOVE THE
DISTRICT COURT FOR THE DISTRICT IN WHICH THE PROPERTY WAS SEIZED FOR
THE RETURN OF THE PROPERTY AND TO SUPPRESS FOR USE AS EVIDENCE ANYTHING
SO OBTAINED ON THE GROUND THAT (1) THE PROPERTY WAS ILLEGALLY SEIZED
WITHOUT WARRANT, OR (2) THE WARRANT IS INSUFFICIENT ON ITS FACE, OR (3)
THE PROPERTY SEIZED IS NOT THAT DESCRIBED IN THE WARRANT, OR (4) THERE
WAS NOT PROBABLE CAUSE FOR BELIEVING THE EXISTENCE OF THE GROUNDS ON
WHICH THE WARRANT WAS ISSUED, OR (5) THE WARRANT WAS ILLEGALLY
EXECUTED.  THE JUDGE SHALL RECEIVE EVIDENCE ON ANY ISSUE OF FACT
NECESSARY TO THE DECISION OF THE MOTION.  IF THE MOTION IS GRANTED THE
PROPERTY SHALL BE RESTORED UNLESS OTHERWISE SUBJECT TO LAWFUL DETENTION
AND IT SHALL NOT BE ADMISSIBLE IN EVIDENCE AT ANY HEARING OR TRIAL. 
THE MOTION TO SUPPRESS EVIDENCE MAY ALSO BE MADE IN THE DISTRICT WHERE
THE TRIAL IS TO BE HAD.  THE MOTION SHALL BE MADE BEFORE TRIAL OR
HEARING UNLESS OPPORTUNITY THEREFOR DID NOT EXIST OR THE DEFENDANT WAS
NOT AWARE OF THE GROUNDS FOR THE MOTION, BUT THE COURT IN ITS
DISCRETION MAY ENTERTAIN THE MOTION AT THE TRIAL OR HEARING." 

IN ORDER TO QUALIFY AS A "PERSON AGGRIEVED BY AN UNLAWFUL SEARCH AND
SEIZURE" ONE MUST HAVE BEEN A VICTIM OF A SEARCH OR SEIZURE, ONE
AGAINST WHOM THE SEARCH WAS DIRECTED, AS DISTINGUISHED FROM ONE WHO
CLAIMS PREJUDICE ONLY THROUGH THE USE OF EVIDENCE GATHERED AS A
CONSEQUENCE OF A SEARCH OR SEIZURE DIRECTED AT SOMEONE ELSE.  RULE
41(E) APPLIES THE GENERAL PRINCIPLE THAT A PARTY WILL NOT BE HEARD TO
CLAIM A CONSTITUTIONAL PROTECTION UNLESS HE "BELONGS TO THE CLASS FOR
WHOSE SAKE THE CONSTITUTIONAL PROTECTION IS GIVEN."  HATCH V. REARDON,
204 U.S. 152, 160.  THE RESTRICTIONS UPON SEARCHES AND SEIZURES WERE
OBVIOUSLY DESIGNED FOR PROTECTION AGAINST OFFICIAL INVASION OF PRIVACY
AND THE SECURITY OF PROPERTY.  THEY ARE NOT EXCLUSIONARY PROVISIONS
AGAINST THE ADMISSION OF KINDS OF EVIDENCE DEEMED INHERENTLY UNRELIABLE
OR PREJUDICIAL.  THE EXCLUSION IN FEDERAL TRIALS OF EVIDENCE OTHERWISE
COMPETENT BUT GATHERED BY FEDERAL OFFICIALS IN VIOLATION OF THE FOURTH
AMENDMENT IS A MEANS FOR MAKING EFFECTIVE THE PROTECTION OF PRIVACY. 

ORDINARILY, THEN, IT IS ENTIRELY PROPER TO REQUIRE OF ONE WHO SEEKS
TO CHALLENGE THE LEGALITY OF A SEARCH AS THE BASIS FOR SUPPRESSING
RELEVANT EVIDENCE THAT HE ALLEGE, AND IF THE ALLEGATION BE DISPUTED
THAT HE ESTABLISH, THAT HE HIMSELF WAS THE VICTIM OF AN INVASION OF
PRIVACY.  BUT PROSECUTIONS LIKE THIS ONE HAVE PRESENTED A SPECIAL
PROBLEM.  TO ESTABLISH "STANDING," COURTS OF APPEALS HAVE GENERALLY
REQUIRED THAT THE MOVANT CLAIM EITHER TO HAVE OWNED OR POSSESSED THE
SEIZED PROPERTY OR TO HAVE HAD A SUBSTANTIAL POSSESSORY INTEREST IN THE
PREMISES SEARCHED.  SINCE NARCOTICS CHARGES LIKE THOSE IN THE PRESENT
INDICTMENT MAY BE ESTABLISHED THROUGH PROOF SOLELY OF POSSESSION OF
NARCOTICS, A DEFENDANT SEEKING TO COMPLY WITH WHAT HAS BEEN THE
CONVENTIONAL STANDING REQUIREMENT HAS BEEN FORCED TO ALLEGE FACTS THE
PROOF OF WHICH WOULD TEND, IF INDEED NOT BE SUFFICIENT, TO CONVICT
HIM.  AT THE LEAST, SUCH A DEFENDANT HAS BEEN PLACED IN THE CRIMINALLY
TENDENTIOUS POSITION OF EXPLAINING HIS POSSESSION OF THE PREMISES.  HE
HAS BEEN FACED, NOT ONLY WITH THE CHANCE THAT THE ALLEGATIONS MADE ON
THE MOTION TO SUPPRESS MAY BE USED AGAINST HIM AT THE TRIAL, ALTHOUGH
THAT THEY MAY IS BY NO MEANS AN INEVITABLE HOLDING, BUT ALSO WITH THE
ENCOURAGEMENT THAT HE PERJURE HIMSELF IF HE SEEKS TO ESTABLISH
"STANDING" WHILE MAINTAINING A DEFENSE TO THE CHARGE OF POSSESSION. 

THE DILEMMA THAT HAS THUS BEEN CREATED FOR DEFENDANTS IN CASES LIKE
THIS HAS BEEN POINTEDLY PUT BY JUDGE LEARNED HAND: 

"MEN MAY WINCE AT ADMITTING THAT THEY WERE THE OWNERS, OR IN
POSSESSION, OF CONTRABAND PROPERTY; MAY WISH AT ONCE TO SECURE THE
REMEDIES OF A POSSESSOR, AND AVOID THE PERILS OF THE PART; BUT
EQUIVOCATION WILL NOT SERVE.  IF THEY COME AS VICTIMS, THEY MUST TAKE
ON THAT ROLE, WITH ENOUGH DETAIL TO CAST THEM WITHOUT QUESTION.  THE
PETITIONERS AT BAR SHRANK FROM THAT PREDICAMENT; BUT THEY WERE OBLIGED
TO CHOOSE ONE HORN OF THE DILEMMA."  CONNOLLY V. MEDALIE, 58 F.2D 629,
630. 

FOLLOWING THIS HOLDING, SEVERAL COURTS OF APPEALS HAVE PINIONED A
DEFENDANT WITHIN THIS DILEMMA.  SEE, E.G., SCOGGINS V. UNITED STATES,
92 U.S. APP. D.C. 29-30, 202 F.2D 211, 212; UNITED STATES V. EVERSOLE,
209 F.2D 766, 768; ACCARDO V. UNITED STATES, 101 U.S. APP.  D.C. 162,
163-164, 247 F.2D 568, 569-570; GRAINGER V. UNITED STATES, 158 F.2D
236.  A DISTRICT COURT HAS HELD OTHERWISE.  UNITED STATES V. DEAN, 50
F.2D 905, 906 (D.C. MASS.).  THE GOVERNMENT URGES US TO FOLLOW THE BODY
OF COURT OF APPEALS' DECISIONS AND TO RULE THAT THE LOWER COURTS,
INCLUDING THE COURTS BELOW, HAVE BEEN RIGHT IN BARRING A DEFENDANT IN A
CASE LIKE THIS FROM CHALLENGING A SEARCH BECAUSE OF HIS FAILURE, WHEN
MAKING HIS MOTION TO SUPPRESS, TO ALLEGE EITHER THAT HE OWNED OR
POSSESSED THE PROPERTY SEIZED OR THAT HE HAD A POSSESSORY INTEREST IN
THE PREMISES SEARCHED GREATER THAN THE INTEREST OF AN "INVITEE OR
GUEST." 

JUDGE HAND'S DILEMMA IS NOT INESCAPABLE.  IT PRESUPPOSES REQUIREMENTS
OF "STANDING" WHICH WE DO NOT FIND COMPELLING.  TWO SEPARATE LINES OF
THOUGHT EFFECTIVELY SUSTAIN DEFENDANT'S STANDING IN THIS CASE.  (1) THE
SAME ELEMENT IN THIS PROSECUTION WHICH HAS CAUSED A DILEMMA, I.E., THAT
POSSESSION BOTH CONVICTS AND CONFERS STANDING, ELIMINATES ANY NECESSITY
FOR A PRELIMINARY SHOWING OF AN INTEREST IN THE PREMISES SEARCHED OR
THE PROPERTY SEIZED, WHICH ORDINARILY IS REQUIRED WHEN STANDING IS
CHALLENGED.  (2) EVEN WERE THIS NOT A PROSECUTION TURNING ON ILLICIT
POSSESSION, THE LEGALLY REQUISITE INTEREST IN THE PREMISES WAS HERE
SATISFIED, FOR IT NEED NOT BE AS EXTENSIVE A PROPERTY INTEREST AS WAS
REQUIRED BY THE COURTS BELOW. 

AS TO THE FIRST GROUND, WE ARE PERSUADED BY THIS CONSIDERATION:  TO
HOLD TO THE CONTRARY, THAT IS, TO HOLD THAT PETITIONER'S FAILURE TO
ACKNOWLEDGE INTEREST IN THE NARCOTICS OR THE PREMISES PREVENTED HIS
ATTACK UPON THE SEARCH, WOULD BE TO PERMIT THE GOVERNMENT TO HAVE THE
ADVANTAGE OF CONTRADICTORY POSITIONS AS A BASIS FOR CONVICTION. 
PETITIONER'S CONVICTION FLOWS FROM HIS POSSESSION OF THE NARCOTICS AT
THE TIME OF THE SEARCH.  YET THE FRUITS OF THAT SEARCH, UPON WHICH THE
CONVICTION DEPENDS, WERE ADMITTED INTO EVIDENCE ON THE GROUND THAT
PETITIONER DID NOT HAVE POSSESSION OF THE NARCOTICS AT THAT TIME.  THE
PROSECUTION HERE THUS SUBJECTED THE DEFENDANT TO THE PENALTIES METED
OUT TO ONE IN LAWLESS POSSESSION WHILE REFUSING HIM THE REMEDIES
DESIGNED FOR ONE IN THAT SITUATION.   IT IS NOT CONSONANT WITH THE
AMENITIES, TO PUT IT MILDLY, OF THE ADMINISTRATION OF CRIMINAL JUSTICE
TO SANCTION SUCH SQUARELY CONTRADICTORY ASSERTIONS OF POWER BY THE
GOVERNMENT.  THE POSSESSION ON THE BASIS OF WHICH PETITIONER IS TO BE
AND WAS CONVICTED SUFFICES TO GIVE HIM STANDING UNDER ANY FAIR AND
RATIONAL CONCEPTION OF THE REQUIREMENTS OF RULE 41(E). 

THE GOVERNMENT'S ARGUMENT TO THE CONTRARY ESSENTIALLY INVOKES
ELEGANTIA JURIS.  IN THE INTEREST OF NORMAL PROCEDURAL ORDERLINESS, A
MOTION TO SUPPRESS, UNDER RULE 41(E), MUST BE MADE PRIOR TO TRIAL, IF
THE DEFENDANT THEN HAS KNOWLEDGE OF THE GROUNDS ON WHICH TO BASE THE
MOTION.  THE GOVERNMENT ARGUES THAT THE DEFENDANT THEREFORE MUST
ESTABLISH HIS STANDING TO SUPPRESS THE EVIDENCE AT THAT TIME THROUGH
AFFIRMATIVE ALLEGATIONS AND MAY NOT WAIT TO REST STANDING UPON THE
GOVERNMENT'S CASE AT THE TRIAL.  THIS PROVISION OF RULE 41(E),
REQUIRING THE MOTION TO SUPPRESS TO BE MADE BEFORE TRIAL, IS A
CRYSTALLIZATION OF DECISIONS OF THIS COURT REQUIRING THAT PROCEDURE,
AND IS DESIGNED TO ELIMINATE FROM THE TRIAL DISPUTES OVER POLICE
CONDUCT NOT IMMEDIATELY RELEVANT TO THE QUESTION OF GUILT.  SEE NARDONE
V. UNITED STATES, 308 U.S. 338, 341-342; SEGUROLA V. UNITED STATES, 275
U.S. 106, 111-112; AGNELLO V. UNITED STATES, 269 U.S. 20, 34; ADAMS V.
NEW YORK, 192 U.S. 585.  AS CODIFIED, THE RULE IS NOT A RIGID ONE, FOR
UNDER RULE 41(E) "THE COURT IN ITS DISCRETION MAY ENTERTAIN THE MOTION
TO SUPPRESS AT THE TRIAL OR HEARING."  THIS QUALIFICATION PROVES THAT
WE ARE DEALING WITH CARRYING OUT AN IMPORTANT SOCIAL POLICY AND NOT A
NARROW, FINICKY PROCEDURAL REQUIREMENT.  THUS UNDERLYING POLICY
LIKEWISE PRECLUDES APPLICATION OF THE RULE SO AS TO COMPEL THE
INJUSTICE OF AN INTERNALLY INCONSISTENT CONVICTION.  IN CASES WHERE THE
INDICTMENT ITSELF CHARGES POSSESSION, THE DEFENDANT IN A VERY REAL
SENSE IS REVEALED AS A "PERSON AGGRIEVED BY AN UNLAWFUL SEARCH AND
SEIZURE" UPON A MOTION TO SUPPRESS EVIDENCE PRIOR TO TRIAL.  RULE 41(E)
SHOULD NOT BE APPLIED TO ALLOW THE GOVERNMENT TO DEPRIVE THE DEFENDANT
OF STANDING TO BRING A MOTION TO SUPPRESS BY FRAMING THE INDICTMENT IN
GENERAL TERMS, WHILE PROSECUTING FOR POSSESSION.  (FN1)    AS A SECOND
GROUND SUSTAINING "STANDING" HERE WE HOLD THAT PETITIONER'S TESTIMONY
ON THE MOTION TO SUPPRESS MADE OUT A SUFFICIENT INTEREST IN THE
PREMISES TO ESTABLISH HIM AS A "PERSON AGGRIEVED" BY THEIR SEARCH. 
THAT TESTIMONY ESTABLISHED THAT AT THE TIME OF THE SEARCH PETITIONER
WAS PRESENT IN THE APARTMENT WITH THE PERMISSION OF EVANS, WHOSE
APARTMENT IT WAS.  THE GOVERNMENT ASSERTS THAT SUCH AN INTEREST IS
INSUFFICIENT TO GIVE STANDING.  THE GOVERNMENT DOES NOT CONTEND THAT
ONLY OWNERSHIP OF THE PREMISES MAY CONFER STANDING.  IT WOULD DRAW
DISTINCTIONS AMONG VARIOUS CLASSES OF POSSESSORS, DEEMING SOME, SUCH AS
"GUESTS" AND "INVITEES" WITH ONLY THE "USE" OF THE PREMISES, TO HAVE
TOO "TENUOUS" AN INTEREST ALTHOUGH CONCEDEDLY HAVING "SOME MEASURE OF
CONTROL" THROUGH THEIR "TEMPORARY PRESENCE," WHILE CONCEDING THAT
OTHERS, WHO IN A "REALISTIC SENSE, HAVE DOMINION OF THE APARTMENT" OR
WHO ARE "DOMICILED" THERE, HAVE STANDING.  PETITIONER, IT IS INSISTED,
BY HIS OWN TESTIMONY FALLS IN THE FORMER CLASS. 

WHILE THIS COURT HAS NEVER PASSED UPON THE INTEREST IN THE SEARCHED
PREMISES NECESSARY TO MAINTAIN A MOTION TO SUPPRESS, THE GOVERNMENT'S
ARGUMENT CLOSELY FOLLOWS THE PREVAILING VIEW IN THE LOWER COURTS.  THEY
HAVE DENIED STANDING TO "GUESTS" AND "INVITEES" (E.G., GASKINS V.
UNITED STATES, 95 U.S. APP. D.C. 34, 35, 218 F.2D 47, 48; GIBSON V.
UNITED STATES, 80 U.S. APP. D.C. 81, 84, 149 F.2D 381, 384; IN RE
NASSETTA, 125 F.2D 924; JONES V. UNITED STATES, 104 U.S. APP. D.C. 345,
262 F.2D 234), AND EMPLOYEES, WHO THOUGH IN "CONTROL" OR "OCCUPANCY"
LACKED "POSSESSION" (E.G., CONNOLLY V. MEDALIE, 58 F.2D 629, 630;
UNITED STATES, V. CONOSCENTE, 63 F.2D 811).  THE NECESSARY QUANTUM OF
INTEREST HAS BEEN DISTINGUISHED AS BEING, VARIOUSLY, "OWNERSHIP IN OR
RIGHT TO POSSESSION OF THE PREMISES" (E.G., JEFFERS V. UNITED STATES,
88 U.S. APP. D.C. 58, 61, 187 F.2D 498, 501, AFFIRMED, JEFFERS V.
UNITED STATES, 342 U.S. 48), THE INTEREST OF A "LESSEE OR LICENSEE"
(UNITED STATES V. DE BOUSI, 32 F.2D 902), OR OF ONE WITH "DOMINION"
(MCMILLIAN V. UNITED STATES, 26 F.2D 58, 60; STEEBER V. UNITED STATES,
198 F.2D 615, 617).  WE DO NOT LIGHTLY DEPART FROM THIS COURSE OF
DECISIONS BY THE LOWER COURTS.  WE ARE PERSUADED, HOWEVER, THAT IT IS
UNNECESSARY AND ILL-ADVISED TO IMPORT INTO THE LAW SURROUNDING THE
CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES
SUBTLE DISTINCTIONS, DEVELOPED AND REFINED BY THE COMMON LAW IN
EVOLVING THE BODY OF PRIVATE PROPERTY LAW WHICH, MORE THAN ALMOST ANY
OTHER BRANCH OF LAW, HAS BEEN SHAPED BY DISTINCTIONS WHOSE VALIDITY IS
LARGELY HISTORICAL.  EVEN IN THE AREA FROM WHICH THEY DERIVE, DUE
CONSIDERATION HAS LED TO THE DISCARDING OF THESE DISTINCTIONS IN THE
HOMELAND OF THE COMMON LAW.  SEE OCCUPIERS' LIABILITY ACT, 1957, 5 AND
6 ELIZ.  2, C. 31, CARRYING OUT LAW REFORM COMMITTEE, THIRD REPORT,
CMD.  9305.  DISTINCTIONS SUCH AS THOSE BETWEEN "LESSEE," "LICENSEE,"
"INVITEE" AND "GUEST," OFTEN ONLY OF GOSSAMER STRENGTH, OUGHT NOT TO BE
DETERMINATIVE IN FASHIONING PROCEDURES ULTIMATELY REFERABLE TO
CONSTITUTIONAL SAFEGUARDS. 

WE REJECTED SUCH DISTINCTIONS AS INAPPROPRIATE TO THE LAW OF MARITIME
TORTS IN KERMAREC V. COMPAGNIE GENERALE, 358 U.S. 625, 630-632.  WE
FOUND THERE TO BE A DUTY OF ORDINARY CARE TO ONE RIGHTFULLY ON THE
SHIP, REGARDLESS OF WHETHER HE WAS A "LICENSEE" RATHER THAN AN
"INVITEE."  "FOR THE ADMIRALTY LAW AT THIS LATE DATE TO IMPORT SUCH
CONCEPTUAL DISTINCTIONS WOULD BE FOREIGN TO ITS TRADITIONS OF
SIMPLICITY AND PRACTICALITY."  358 U.S., AT 631.  A FORTIORI WE OUGHT
NOT TO BOW TO THEM IN THE FAIR ADMINISTRATION OF THE CRIMINAL LAW.  TO
DO SO WOULD NOT COMPORT WITH OUR JUSTLY PROUD CLAIM OF THE PROCEDURAL
PROTECTIONS ACCORDED TO THOSE CHARGED WITH CRIME.  NO JUST INTEREST OF
THE GOVERNMENT IN THE EFFECTIVE AND RIGOROUS ENFORCEMENT OF THE
CRIMINAL LAW WILL BE HAMPERED BY RECOGNIZING THAT ANYONE LEGITIMATELY
ON PREMISES WHERE A SEARCH OCCURS MAY CHALLENGE ITS LEGALITY BY WAY OF
A MOTION TO SUPPRESS, WHEN ITS FRUITS ARE PROPOSED TO BE USED AGAINST
HIM.  THIS WOULD OF COURSE NOT AVAIL THOSE WHO, BY VIRTUE OF THEIR
WRONGFUL PRESENCE, CANNOT INVOKE THE PRIVACY OF THE PREMISES SEARCHED. 
AS PETITIONER'S TESTIMONY ESTABLISHED EVANS' CONSENT TO HIS PRESENCE IN
THE APARTMENT, HE WAS ENTITLED TO HAVE THE MERITS OF HIS MOTION TO
SUPPRESS ADJUDICATED. 

WE COME TO CONSIDER THE GROUNDS UPON WHICH THE SEARCH IS ALLEGED TO
HAVE BEEN ILLEGAL.  THE ATTACK WHICH WAS MADE IN THE DISTRICT COURT WAS
ONE OF LACK OF PROBABLE CAUSE FOR ISSUING THE SEARCH WARRANT.  THE
QUESTION RAISED IS WHETHER SUFFICIENT EVIDENCE TO ESTABLISH PROBABLE
CAUSE TO SEARCH WAS PUT BEFORE THE COMMISSIONER BY THE OFFICER, DIDONE,
WHO APPLIED FOR THE WARRANT.  THE SOLE EVIDENCE UPON WHICH THE WARRANT
WAS ISSUED WAS AN AFFIDAVIT SIGNED BY DIDONE.  BOTH PARTIES URGE US TO
DECIDE THE QUESTION HERE, WITHOUT REMANDING IT TO THE DISTRICT COURT
WHICH, BECAUSE IT FOUND LACK OF STANDING, DID NOT PASS ON IT.  WE THINK
IT APPROPRIATE TO DECIDE THE QUESTION. 

THE AFFIDAVIT IS SET OUT IN THE MARGIN.  (FN2)  DIDONE WAS A MEMBER
OF THE NARCOTICS SQUAD IN THE DISTRICT OF COLUMBIA.  HIS AFFIDAVIT
CLAIMED NO DIRECT KNOWLEDGE OF THE PRESENCE OF NARCOTICS IN THE
APARTMENT.  HE SWORE THAT ON THE DAY BEFORE MAKING THE AFFIDAVIT HE HAD
BEEN GIVEN INFORMATION, BY ONE UNNAMED, THAT PETITIONER AND ANOTHER
"WERE INVOLVED IN THE ILLICIT NARCOTIC TRAFFIC" AND "KEPT A READY
SUPPLY OF HEROIN ON HAND" IN THE APARTMENT.  HE SWORE THAT THIS
INFORMANT CLAIMED TO HAVE PURCHASED NARCOTICS AT THE APARTMENT FROM
PETITIONER AND ANOTHER "ON MANY OCCASIONS," THE LAST OF WHICH HAD BEEN
THE DAY BEFORE THE WARRANT WAS APPLIED FOR.  DIDONE SWORE THAT HIS
INFORMANT "HAS GIVEN INFORMATION TO THE UNDERSIGNED ON PREVIOUS
OCCASION AND WHICH WAS CORRECT," THAT "THIS SAME INFORMATION" REGARDING
PETITIONER HAD BEEN GIVEN THE NARCOTIC SQUAD BY "OTHER SOURCES OF
INFORMATION" AND THAT THE PETITIONER AND THE OTHER IMPLICATED BY THE
INFORMANT HAD ADMITTED BEING USERS OF NARCOTICS.  ON THIS BASIS DIDONE
FOUNDED HIS OATH THAT HE BELIEVED "THAT THERE IS NOW ILLICIT NARCOTIC
DRUGS BEING SECRETED IN THE ABOVE APARTMENT BY CECIL JONES." 

THIS AFFIDAVIT WAS, IT IS CLAIMED, INSUFFICIENT TO ESTABLISH PROBABLE
CAUSE BECAUSE IT DID NOT SET FORTH THE AFFIANT'S PERSONAL OBSERVATIONS
REGARDING THE PRESENCE OF NARCOTICS IN THE APARTMENT, BUT RESTED WHOLLY
ON HEARSAY.  WE HELD IN NATHANSON V. UNITED STATES, 290 U.S. 41, THAT
AN AFFIDAVIT DOES NOT ESTABLISH PROBABLE CAUSE WHICH MERELY STATES THE
AFFIANT'S BELIEF THAT THERE IS CAUSE TO SEARCH, WITHOUT STATING FACTS
UPON WHICH THAT BELIEF IS BASED.  A FORTIORI THIS IS TRUE OF AN
AFFIDAVIT WHICH STATES ONLY THE BELIEF OF ONE NOT THE AFFIANT.  THAT IS
NOT, HOWEVER, THIS  CASE.  THE QUESTION HERE IS WHETHER AN AFFIDAVIT
WHICH SETS OUT PERSONAL OBSERVATIONS RELATING TO THE EXISTENCE OF CAUSE
TO SEARCH IS TO BE DEEMED INSUFFICIENT BY VIRTUE OF THE FACT THAT IT
SETS OUT NOT THE AFFIANT'S OBSERVATIONS BUT THOSE OF ANOTHER.  AN
AFFIDAVIT IS NOT TO BE DEEMED INSUFFICIENT ON THAT SCORE, SO LONG AS A
SUBSTANTIAL BASIS FOR CREDITING THE HEARSAY IS PRESENTED. 

IN TESTING THE SUFFICIENCY OF PROBABLE CAUSE FOR AN OFFICER'S ACTION
EVEN WITHOUT A WARRANT, WE HAVE HELD THAT HE MAY RELY UPON INFORMATION
RECEIVED THROUGH AN INFORMANT, RATHER THAN UPON HIS DIRECT
OBSERVATIONS, SO LONG AS THE INFORMANT'S STATEMENT IS REASONABLY
CORROBORATED BY OTHER MATTERS WITHIN THE OFFICER'S KNOWLEDGE.  DRAPER
V. UNITED STATES, 358 U.S. 307.  WE THERE UPHELD AN ARREST WITHOUT A
WARRANT SOLELY UPON AN INFORMANT'S STATEMENT THAT THE DEFENDANT WAS
PEDDLING NARCOTICS, AS CORROBORATED BY THE FACT THAT THE INFORMANT'S
DESCRIPTION OF THE DEFENDANT'S APPEARANCE, AND OF WHERE HE WOULD BE ON
A GIVEN MORNING (MATTERS IN THEMSELVES TOTALLY INNOCUOUS) AGREED WITH
THE OFFICER'S OBSERVATIONS.  WE REJECTED THE CONTENTION THAT AN OFFICER
MAY ACT WITHOUT A WARRANT ONLY WHEN HIS BASIS FOR ACTING WOULD BE
COMPETENT EVIDENCE UPON A TRIAL TO PROVE DEFENDANT'S GUILT.  QUOTING
FROM BRINEGAR V. UNITED STATES, 338 U.S. 160, 172, WE SAID THAT SUCH A
CONTENTION "GOES MUCH TOO FAR IN CONFUSING AND DISREGARDING THE
DIFFERENCE BETWEEEN WHAT IS REQUIRED TO PROVE GUILT IN A CRIMINAL CASE
AND WHAT IS REQUIRED TO SHOW PROBABLE CAUSE FOR ARREST OR SEARCH ...  .
THERE IS A LARGE DIFFERENCE BETWEEN THE TWO THINGS TO BE PROVED (GUILT
AND PROBABLE CAUSE) ...  AND THEREFORE A LIKE DIFFERENCE IN THE QUANTA
AND MODES OF PROOF REQUIRED TO ESTABLISH THEM."  358 U.S., AT 311-312. 
THE DICTUM TO THE CONTRARY IN GRAU V. UNITED STATES, 287 U.S. 124, 128,
WAS EXPRESSLY REJECTED IN DRAPER.  358 U.S., AT 312, N. 4.  SEE ALSO
JUDGE LEARNED HAND IN UNITED STATES V. HEITNER, 149 F.2D 105, 106. 

WHAT WE HAVE RULED IN THE CASE OF AN OFFICER WHO ACTS WITHOUT A
WARRANT GOVERNS OUR DECISION HERE.   IF AN OFFICER MAY ACT UPON
PROBABLE CAUSE WITHOUT A WARRANT WHEN THE ONLY INCRIMINATING EVIDENCE
IN HIS POSSESSION IS HEARSAY, IT WOULD BE INCONGRUOUS TO HOLD THAT SUCH
EVIDENCE PRESENTED IN AN AFFIDAVIT IS INSUFFICIENT BASIS FOR A
WARRANT.  IF EVIDENCE OF A MORE JUDICIALLY COMPETENT OR PERSUASIVE
CHARACTER THAN WOULD HAVE JUSTIFIED AN OFFICER IN ACTING ON HIS OWN
WITHOUT A WARRANT MUST BE PRESENTED WHEN A WARRANT IS SOUGHT, WARRANTS
COULD SELDOM LEGITIMATIZE POLICE CONDUCT, AND RESORT TO THEM WOULD
ULTIMATELY BE DISCOURAGED.  DUE REGARD FOR THE SAFEGUARDS GOVERNING
ARRESTS AND SEARCHES COUNSELS THE CONTRARY.  IN A DOUBTFUL CASE, WHEN
THE OFFICER DOE NOT HAVE CLEARLY CONVINCING EVIDENCE OF THE IMMEDIATE
NEED TO SEARCH, IT IS MOST IMPORTANT THAT RESORT BE HAD TO A WARRANT,
SO THAT THE EVIDENCE IN THE POSSESSION OF THE POLICE MAY BE WEIGHED BY
AN INDEPENDENT JUDICIAL OFFICER, WHOSE DECISION, NOT THAT OF THE
POLICE, MAY GOVERN WHETHER LIBERTY OR PRIVACY IS TO BE INVADED. 

WE CONCLUDE THEREFORE THAT HEARSAY MAY BE THE BASIS FOR A WARRANT. 
WE CANNOT SAY THAT THERE WAS SO LITTLE BASIS FOR ACCEPTING THE HEARSAY
HERE THAT THE COMMISSIONER ACTED IMPROPERLY.  THE COMMISSIONER NEED NOT
HAVE BEEN CONVINCED OF THE PRESENCE OF NARCOTICS IN THE APARTMENT.  HE
MIGHT HAVE FOUND THE AFFIDAVIT INSUFFICIENT AND WITHHELD HIS WARRANT. 
BUT THERE WAS SUBSTANTIAL BASIS FOR HIM TO CONCLUDE THAT NARCOTICS WERE
PROBABLY PRESENT IN THE APARTMENT, AND THAT IS SUFFICIENT.  IT IS NOT
SUGGESTED THAT THE COMMISSIONER DOUBTED DIDONE'S WORD.  THUS WE MAY
ASSUME THAT DIDONE HAD THE DAY BEFORE BEEN TOLD, BY ONE WHO CLAIMED TO
HAVE BOUGHT NARCOTICS THERE, THAT PETITIONER WAS SELLING NARCOTICS IN
THE APARTMENT.  HAD THAT BEEN ALL, IT MIGHT NOT HAVE BEEN ENOUGH; BUT
DIDONE SWORE TO A BASIS FOR ACCEPTING THE INFORMANT'S STORY.  THE
INFORMANT HAD PREVIOUSLY GIVEN ACCURATE INFORMATION.  HIS STORY WAS
CORROBORATED BY OTHER SOURCES OF INFORMATION.  AND PETITIONER WAS KNOWN
BY THE POLICE TO BE A USER OF NARCOTICS.  CORROBORATION THROUGH OTHER
SOURCES OF INFORMATION REDUCED THE CHANCES OF A RECKLESS OR
PREVARICATING TALE; THAT PETITIONER WAS A KNOWN USER OF NARCOTICS MADE
THE CHARGE AGAINST HIM MUCH LESS SUBJECT TO SCEPTICISM THAN WOULD BE
SUCH A CHARGE AGAINST ONE WITHOUT SUCH A HISTORY. 

PETITIONER ARGUES THAT THE WARRANT WAS DEFECTIVE BECAUSE DIDONE'S
INFORMANTS WERE NOT PRODUCED, BECAUSE HIS AFFIDAVIT DID NOT EVEN STATE
THEIR NAMES, AND DIDONE DID NOT UNDERTAKE AND SWEAR TO THE RESULTS OF
HIS OWN INDEPENDENT INVESTIGATION OF THE CLAIMS MADE BY HIS
INFORMANTS.  IF THE OBJECTIONS RAISED WERE THAT DIDONE HAD
MISREPRESENTED TO THE COMMISSIONER HIS BASIS FOR SEEKING A WARRANT,
THESE MATTERS MIGHT BE RELEVANT.  SUCH A CHARGE IS NOT MADE.  ALL WE
ARE HERE ASKED TO DECIDE IS WHETHER THE COMMISSIONER ACTED PROPERLY,
NOT WHETHER DIDONE DID.  WE HAVE DECIDED THAT, AS HEARSAY ALONE DOES
NOT RENDER AN AFFIDAVIT INSUFFICIENT, THE COMMISSIONER NEED NOT HAVE
REQUIRED THE INFORMANTS OR THEIR AFFIDAVITS TO BE PRODUCED, OR THAT
DIDONE HAVE PERSONALLY MADE INQUIRIES ABOUT THE APARTMENT, SO LONG AS
THERE WAS A SUBSTANTIAL BASIS FOR CREDITING THE HEARSAY. 

IN THE COURT OF APPEALS PETITIONER PRESENTED AN ADDITIONAL ATTACK
UPON THE LEGALITY OF THE SEARCH, NAMELY, THAT THE WARRANT WAS NOT
EXECUTED IN CONFORMITY WITH 18 U.S.C.  SEC. 3109.  (FN3)  SINCE
PETITIONER DID NOT, WITH AMPLE OPPORTUNITY TO DO SO, MAKE THIS CLAIM IN
THE DISTRICT COURT, WE SHOULD NOT ORDINARILY CONSIDER IT HERE HAD THE
COURT OF APPEALS REFUSED FOR THAT REASON TO ENTERTAIN IT.  THE COURT OF
APPEALS, HOWEVER, FULLY CONSIDERED THE CLAIM AND REJECTED IT; NOR DOES
THE GOVERNMENT CONTEND THAT IT IS NOT PROPERLY BEFORE US.  IN THESE
CIRCUMSTANCES WE HOLD THAT THE QUESTION OF THE LEGALITY OF THE
EXECUTION OF THE SEARCH WARRANT UNDER 18 U.S.C. SEC. 3109 IS OPEN FOR
OUR DECISION. 

UNLIKE THE CLAIM OF LACK OF PROBABLE CAUSE, THIS CONTENTION IS NOT
ONE WHICH CAN SATISFACTORILY BE RESOLVED UPON THE RECORD BEFORE US.  AS
MILLER V. UNITED STATES, 357 U.S. 301, DEMONSTRATED, A CLAIM UNDER 18
U.S.C. SEC. 3109 DEPENDS UPON THE PARTICULAR CIRCUMSTANCES SURROUNDING
THE EXECUTION OF THE WARRANT.  THE TRIAL REVEALED A DIRECT CONFLICT IN
TESTIMONY ON THIS MATTER.  WE CANNOT YIELD TO THE GOVERNMENT'S
SUGGESTION THAT WE IGNORE THAT CONFLICT AND CONSIDER THE QUESTION ON
THE VERSION OF THE WARRANT'S EXECUTION GIVEN AT THE TRIAL MOST
FAVORABLE TO THE PROSECUTION.  WE THEREFORE VACATE THE DECISION OF THE
COURT OF APPEALS AND REMAND THE CASE TO THE DISTRICT COURT TO CONSIDER
PETITIONER'S CONTENTION UNDER 18 U.S.C. SEC. 3109, IN LIGHT OF OUR
DECISION THAT PETITIONER HAD STANDING TO MAKE IT.  VACATED AND
REMANDED. 

FN1  ORDINARILY THE GOVERNMENT SHOULD CHOOSE BETWEEN OPPOSING A
MOTION TO SUPPRESS MADE BEFORE TRIAL AND BASING THE CASE UPON
POSSESSION, BUT IF NECESSARY THE DISTRICT COURT'S DISCRETION TO HEAR
THE MOTION TO SUPPRESS DURING TRIAL MAY BE INVOKED.  THE GOVERNMENT
MUST, IN ANY CASE, NOT PERMIT A CONVICTION TO BE OBTAINED ON THE BASIS
OF POSSESSION, WITHOUT THE MERITS OF A DULY MADE MOTION TO SUPPRESS
HAVING BEEN CONSIDERED.    FN2  "AFFIDAVIT IN SUPPORT OF A U.S.
COMMISSIONERS SEARCH WARRANT FOR PREMISES 1436 MERIDIAN PLACE, N.W.,
WASHINGTON, D.C., APARTMENT 36, INCLUDING WINDOW SPACES OF SAID
APARTMENT.  OCCUPIED BY CECIL JONES AND EARLINE RICHARDSON. 

"IN THE LATE AFTERNOON OF TUESDAY, AUGUST 20, 1957, I, DETECTIVE
THOMAS DIDONE, JR. RECEIVED INFORMATION THAT CECIL JONES AND EARLINE
RICHARDSON WERE INVOLVED IN THE ILLICIT NARCOTIC TRAFFIC AND THAT THEY
KEPT A READY SUPPLY OF HEROIN ON HAND IN THE ABOVE MENTIONED
APARTMENT.  THE SOURCE OF INFORMATION ALSO RELATES THAT THE TWO
AFOREMENTIONED PERSONS KEPT THESE SAME NARCOTICS EITHER ON THEIR
PERSON, UNDER A PILLOW, ON A DRESSER OR ON A WINDOW LEDGE IN SAID
APARTMENT.  THE SOURCE OF INFORMATION GOES ON TO RELATE THAT ON MANY
OCCASIONS THE SOURCE OF INFORMATION HAS GONE TO SAID APARTMENT AND
PURCHASED NARCOTIC DRUGS FROM THE ABOVE MENTIONED PERSONS AND THAT THE
NARCOTICS WERE SECRETED IN THE ABOVE MENTIONED PLACES.  THE LAST TIME
BEING AUGUST 20, 1957. 

"BOTH THE AFOREMENTIONED PERSONS ARE FAMILIAR TO THE UNDERSIGNED AND
OTHER MEMBERS OF THE NARCOTIC SQUAD.  BOTH HAVE ADMITTED TO THE USE OF
NARCOTIC DRUGS AND DISPLAY NEEDLE MARKS AS EVIDENCE OF SAME. 

"THIS SAME INFORMATION, REGARDING THE ILLICIT NARCOTIC TRAFFIC,
CONDUCTED BY CECIL JONES AND EARLINE RICHARDSON, HAS BEEN GIVEN TO THE
UNDERSIGNED AND TO OTHER OFFICERS OF THE NARCOTIC SQUAD BY OTHER
SOURCES OF INFORMATION. 

"BECAUSE THE SOURCE OF INFORMATION MENTIONED IN THE OPENING PARAGRAPH
HAS GIVEN INFORMATION TO THE UNDERSIGNED ON PREVIOUS OCCASION AND WHICH
WAS CORRECT, AND BECAUSE THIS SAME INFORMATION IS GIVEN BY OTHER
SOURCES DOES BELIEVE THAT THERE IS NOW ILLICIT NARCOTIC DRUGS BEING
SECRETED IN THE ABOVE APARTMENT BY CECIL JONES AND EARLINE RICHARDSON. 

                 DET.  THOMAS DIDONE, JR., NARCOTIC SQUAD, MPDC. 

"SUBSCRIBED AND SWORN TO BEFORE ME THIS 21 DAY OF AUGUST, 1957. 

                      "JAMES F. SPLAIN, U.S. COMMISSIONER, D.C." 

FN3  "THE OFFICER MAY BREAK OPEN ANY OUTER OR INNER DOOR OR WINDOW OF
A HOUSE, OR ANY PART OF A HOUSE, OR ANYTHING THEREIN, TO EXECUTE A
SEARCH WARRANT, IF, AFTER NOTICE OF HIS AUTHORITY AND PURPOSE, HE IS
REFUSED ADMITTANCE OR WHEN NECESSARY TO LIBERATE HIMSELF OR A PERSON
AIDING HIM IN THE EXECUTION OF THE WARRANT." 

MR. JUSTICE DOUGLAS. 

I JOIN THE PART OF THE OPINION WHICH HOLDS THAT PETITIONER HAD
"STANDING" TO CHALLENGE THE LEGALITY OF THE SEARCH.  BUT I DISSENT FROM
THE RULING THAT THERE WAS "PROBABLE CAUSE" FOR ISSUANCE OF THE
WARRANT.  THE VIEW THAT THERE WAS "PROBABLE CAUSE" FINDS SOME SUPPORT
IN DRAPER V. UNITED STATES, 358 U.S. 307.  BUT MY DISSENT IN DRAPER
GIVES, I THINK, THE TRUE DIMENSIONS OF THE PROBLEM.  THIS IS AN AGE
WHERE FACELESS INFORMERS HAVE BEEN REINTRODUCED INTO OUR SOCIETY IN
ALARMING WAYS.  SOMETIMES THEIR ANONYMITY IS DEFENDED ON THE GROUND
THAT REVELATION OF THEIR NAMES WOULD RUIN COUNTER-ESPIONAGE OR CRIPPLE
AN UNDERGROUND NETWORK OF AGENTS.  YET I THINK IN THESE FOURTH
AMENDMENT CASES THE DUTY OF THE MAGISTRATE IS NONDELEGABLE.  IT IS NOT
SUFFICIENT THAT THE POLICE THINK THERE IS CAUSE FOR AN INVASION OF THE
PRIVACY OF THE HOME.  THE JUDICIAL OFFICER MUST ALSO BE CONVINCED; AND
TO HIM THE POLICE MUST GO EXCEPT FOR EMERGENCY SITUATIONS.  THE
MAGISTRATE SHOULD KNOW THE EVIDENCE ON WHICH THE POLICE PROPOSE TO
ACT.  UNLESS THAT IS THE REQUIREMENT, UNLESS THE MAGISTRATE MAKES HIS
INDEPENDENT JUDGMENT ON ALL THE KNOWN FACTS, THEN HE TENDS TO BECOME
MERELY THE TOOL OF POLICE INTERESTS.  THOUGH THE POLICE ARE HONEST AND
THEIR AIMS WORTHY, HISTORY SHOWS THEY ARE NOT APPROPRIATE GUARDIANS OF
THE PRIVACY WHICH THE FOURTH AMENDMENT PROTECTS. 
..END :













NATIONAL LABOR RELATIONS BOARD V. DRIVERS, CHAUFFEURS, HELPERS, LOCAL
UNION NO. 639, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA 362 U.S. 274 


NO. 34.  ARGUED JANUARY 14, 1960 - DECIDED MARCH 28, 1960 - 107 U.S.
APP. D.C. 42, 274 F.2D 551, AFFIRMED. 


PEACEFUL PICKETING BY A LABOR UNION, WHICH DOES NOT REPRESENT A
MAJORITY OF THE EMPLOYEES, TO COMPEL THE EMPLOYER TO RECOGNIZE THE
UNION AS THE EXCLUSIVE BARGAINING AGENT OF ITS EMPLOYEES, IS NOT
CONDUCT OF THE UNION "TO RESTRAIN OR COERCE" THE EMPLOYEES IN THE
EXERCISE OF RIGHTS GUARANTEED IN SEC. 7 OF THE NATIONAL LABOR RELATIONS
ACT, AS AMENDED, AND THEREFORE SUCH PICKETING IS NOT AN UNFAIR LABOR
PRACTICE UNDER SEC. 8(B)(1)(A) OF THE ACT, AS ADDED BY THE TAFT-HARTLEY
ACT.  PP. 275-292. 

(A)  SECTION 13 OF THE ACT, AS AMENDED BY THE TAFT-HARTLEY ACT, IS A
COMMAND OF CONGRESS TO THE COURTS TO RESOLVE DOUBTS AND AMBIGUITIES IN
FAVOR OF AN INTERPRETATION OF SEC. 8(B)(1)(A) WHICH SAFEGUARDS THE
RIGHT TO STRIKE AS UNDERSTOOD PRIOR TO PASSAGE OF THE TAFT-HARTLEY
ACT.  PP. 281-282. 

(B)  SECTION 8(B)(1)(A) DOES NOT VEST BROAD POWER IN THE NATIONAL
LABOR RELATIONS BOARD TO SIT IN JUDGMENT UPON, AND TO CONDEMN, A
MINORITY UNION'S RESORT TO A SPECIFIC ECONOMIC WEAPON SUCH AS PEACEFUL
PICKETING.  IT IS A LIMITED GRANT OF POWER TO PROCEED AGAINST UNION
TACTICS INVOLVING VIOLENCE, INTIMIDATION AND REPRISAL, OR THREATS
THEREOF - CONDUCT INVOLVING MORE THAN THE GENERAL PRESSURES IMPLICIT IN
ECONOMIC STRIKES.  PP. 282-290. 

(C)  IN THE TAFT-HARTLEY ACT CONGRESS AUTHORIZED THE BOARD TO
REGULATE PEACEFUL "RECOGNITIONAL" PICKETING ONLY WHEN IT IS EMPLOYED TO
ACCOMPLISH OBJECTIVES SPECIFIED IN SEC. 8(B)(4).  P. 290. 

NATIONAL LABOR RELATIONS BOARD V. DRIVERS, CHAUFFEURS, HELPERS, LOCAL
UNION NO. 639, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER PEACEFUL PICKETING BY A UNION,
WHICH DOES NOT REPRESENT A MAJORITY OF THE EMPLOYEES, TO COMPET
IMMEDIATE RECOGNITION AS THE EMPLOYEES' EXCLUSIVE BARGAINING AGENT, IS
CONDUCT OF THE UNION "TO RESTRAIN OR COERCE" THE EMPLOYEES IN THE
EXERCISE OF RIGHTS GUARANTEED IN SEC. 7, (FN1) AND THUS AN UNFAIR LABOR
PRACTICE UNDER SEC. 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE TAFT-HARTLEY ACT.  (FN2) 

CURTIS BROS., INC., HAS A RETAIL STORE AND WAREHOUSE IN WASHINGTON,
D.C., IN WHICH IT CARRIES ON A MOVING, WAREHOUSING AND RETAIL FURNITURE
BUSINESS.  IN 1953 RESPONDENT TEAMSTERS LOCAL 639 WAS CERTIFIED BY THE
NATIONAL LABOR RELATIONS BOARD, FOLLOWING A BOARD-CONDUCTED ELECTION,
TO BE THE EXCLUSIVE REPRESENTATIVE OF THE COMPANY'S DRIVERS, HELPERS,
WAREHOUSEMEN AND FURNITURE FINISHERS.  HOWEVER, WHEN THE LOCAL CALLED A
STRIKE OVER CONTRACT TERMS IN FEBRUARY 1954 ONLY NINE OF 21 EMPLOYEES
IN THE UNIT LEFT THEIR JOBS AND CURTIS BROS. REPLACED THE NINE WITH NEW
EMPLOYEES.  THE STRIKE CONTINUED BUT THE LOCAL GRADUALLY LOST
MEMBERSHIP, AND WHEN AFTER A YEAR CURTIS BROS. PETITIONED THE BOARD TO
CONDUCT ANOTHER ELECTION, THE LOCAL WROTE THE BOARD THAT IT DID NOT
CLAIM TO REPRESENT A MAJORITY OF THE EMPLOYEES.  THE BOARD NEVERTHELESS
ORDERED ANOTHER ELECTION, 114 N.L.R.B. 116, WHICH WAS HELD IN OCTOBER
1955, AND THE THEN EMPLOYEES OF THE UNIT VOTED 28 TO ONE IN FAVOR OF
"NO UNION."  (FN3) 

A MONTH AFTER THE ELECTION, IN NOVEMBER 1955, THE LOCAL WITHDREW A
PICKET LINE WHICH HAD BEEN MAINTAINED BEFORE THE EMPLOYEES' ENTRANCE TO
THE WAREHOUSE DURING THE PERIOD FROM FEBRUARY 1954.  HOWEVER, PICKETING
AT THE CUSTOMERS' ENTRANCE TO THE RETAIL STORE WAS CONTINUED, BUT
LIMITED TO NOT MORE THAN TWO PICKETS AT ANY TIME.  THE PICKETS WERE
ORDERLY AT ALL TIMES AND MADE NO ATTEMPT TO PREVENT ANYONE FROM
ENTERING THE STORE.  THEY SIMPLY PATROLLED BEFORE THE ENTRANCE CARRYING
SIGNS READING ON ONE SIDE, "CURTIS BROS. EMPLOYS NONUNION DRIVERS,
HELPERS, WAREHOUSEMEN AND ETC.  UNFAIR TO TEAMSTERS UNION NO. 639 AFL,"
AND ON THE OTHER SIDE, "TEAMSTERS UNION NO. 639 AFL WANTS EMPLOYES OF
CURTIS BROS. TO JOIN THEM TO GAIN UNION WAGES, HOURS, AND WORKING
CONDITIONS." 

AFTER THIS PICKETING CONTINUED FOR ABOUT SIX MONTHS, CURTIS BROS.
MADE IT THE SUBJECT OF AN UNFAIR LABOR PRACTICE CHARGE AGAINST THE
LOCAL FOR ALLEGED VIOLATION OF SEC. 8(B)(1)(A).  A COMPLAINT ISSUED
WHICH ALLEGED, IN SUBSTANCE, THAT THE PICKETING WAS ACTIVITY TO
"RESTRAIN OR COERCE" THE EMPLOYEES IN THE EXERCISE OF SEC. 7 RIGHTS,
AND THUS AN UNFAIR LABOR PRACTICE UNDER SEC. 8(B)(1)(A), BECAUSE IT WAS
"RECOGNITIONAL" PICKETING, THAT IS, PICKETING DESIGNED TO INDUCE CURTIS
BROS. TO RECOGNIZE THE LOCAL AS THE EXCLUSIVE BARGAINING AGENT FOR THE
EMPLOYEES, ALTHOUGH THE UNION DID NOT REPRESENT A MAJORITY OF THE
EMPLOYEES. 

THE TRIAL EXAMINER RECOMMENDED THAT THE COMPLAINT BE DISMISSED ON THE
GROUND THAT THE LOCAL'S PEACEFUL PICKETING, EVEN IF "RECOGNITIONAL,"
WAS NOT CONDUCT TO "RESTRAIN OR COERCE."  THE BOARD, ONE MEMBER
DISSENTING, DISAGREED AND ENTERED A CEASE-AND-DESIST ORDER, 119
N.L.R.B. 232.  ON REVIEW AT THE INSTANCE OF THE LOCAL, THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY A
DIVIDED COURT, SET ASIDE THE BOARD'S ORDER, HOLDING THAT SEC.
8(B)(1)(A) "IS INAPPLICABLE TO PEACEFUL PICKETING, WHETHER
'ORGANIZATIONAL' OR 'RECOGNITIONAL' IN NATURE  ...  ."  107 U.S. APP.
D.C. 42, 43, 274 F.2D 551, 552.  (FN4)  BECAUSE OF THE IMPORTANCE OF
THE QUESTION IN THE ADMINISTRATION OF THE ACT, WE GRANTED CERTIORARI. 
359 U.S. 965. 

AFTER WE GRANTED CERTIORARI, THE CONGRESS ENACTED THE LABOR
MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, WHICH, AMONG OTHER
THINGS, ADDS A NEW SEC. 8(B)(7) TO THE NATIONAL LABOR RELATIONS ACT. 
(FN5)  IT WAS STATED BY THE BOARD ON ORAL ARGUMENT THAT IF THIS CASE
AROSE UNDER THE 1959 ACT, THE BOARD MIGHT HAVE PROCEEDED AGAINST THE
LOCAL UNDER SEC. 8(B)(7).  THIS DOES NOT, HOWEVER, RELEGATE THIS
LITIGATION TO THE STATUS OF AN UNIMPORTANT CONTROVERSY OVER THE MEANING
OF A STATUTE WHICH HAS BEEN SIGNIFICANTLY CHANGED.  FOR THE BOARD
CONTENDS THAT NEW SEC. 8(B)(7) DOES NOT DISPLACE SEC. 8(B)(1)(A) BUT
MERELY "SUPPLEMENTS THE POWER ALREADY CONFERRED BY SECTION
8(B)(1)(A)."  (FN6)  IT ARGUES THAT THE BOARD MAY PROCEED AGAINST
PEACEFUL "RECOGNITIONAL" PICKETING CONDUCTED BY A MINORITY UNION IN
MORE SITUATIONS THAN ARE SPECIFIED IN SEC. 8(B)(7) AND WITHOUT REGARD
TO THE LIMITATIONS OF SEC. 8(B)(7)(C).  (FN7) 

BASIC TO THE RIGHT GUARANTEED TO EMPLOYEES IN SEC. 7 TO FORM, JOIN OR
ASSIST LABOR ORGANIZATIONS, IS THE RIGHT TO ENGAGE IN CONCERTED
ACTIVITIES TO PERSUADE OTHER EMPLOYEES TO JOIN FOR THEIR MUTUAL AID AND
PROTECTION.  INDEED, EVEN BEFORE THE NORRIS-LAGUARDIA ACT, 47 STAT. 70,
AND THE WAGNER ACT, 49 STAT. 449, THIS COURT RECOGNIZED A RIGHT IN
UNIONS TO "USE ALL LAWFUL PROPAGANDA TO ENLARGE THEIR MEMBERSHIP." 
AMERICAN STEEL FOUNDRIES V. TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S.
184, 209.  HOWEVER, THE TAFT-HARTLEY ACT ADDED ANOTHER RIGHT OF
EMPLOYEES ALSO GUARANTEED PROTECTION, NAMELY, THE RIGHT TO REFRAIN FROM
JOINING A UNION, EXCEPT AS THAT RIGHT MIGHT BE AFFECTED BY AN AGREEMENT
AUTHORIZED IN SEC. 8(A)(3).  THUS TENSION EXISTS BETWEEN THE TWO RIGHTS
OF EMPLOYEES PROTECTED BY SEC. 7 - THEIR RIGHT TO FORM, JOIN OR ASSIST
LABOR ORGANIZATIONS, AND THEIR RIGHT TO REFRAIN FROM DOING SO.  THIS
TENSION IS NECESSARILY QUITE REAL WHEN A UNION EMPLOYS ECONOMIC WEAPONS
TO ORGANIZE EMPLOYEES WHO DO NOT WANT TO JOIN THE UNION.  THE BOARD
HELD HERE THAT PEACEFUL PICKETING IS NOT LAWFULLY EMPLOYED AS AN
ECONOMIC WEAPON TO FURTHER SELF-ORGANIZATION IF ITS OBJECTIVE IS
"RECOGNITIONAL."  THE BOARD STATED:  "BECAUSE THE OBJECT OF THE UNION'S
PICKETING IN THIS CASE WAS TO FORCE THE COMPANY TO COMMIT AN ACT
PROHIBITED BY THE STATUTE ITSELF (THAT IS, TO RECOGNIZE AND CONTRACT
WITH THE LOCAL ALTHOUGH IT WAS NOT THE CHOSEN REPRESENTATIVE OF A
MAJORITY OF THE CURTIS BROS. EMPLOYEES) AND DIRECTLY TO DEPRIVE THE
EMPLOYEES OF A RIGHT EXPRESSLY GUARANTEED TO THEM BY THE SAME ACT,
THERE IS NO OCCASION HERE TO BALANCE CONFLICTING INTERESTS OR RIGHTS." 
119 N.L.R.B. 232, 238.  (FN8)  IT THEREFORE FOUND NO JUSTIFICATION FOR
THE THREAT TO THE EMPLOYEES' JOB SECURITY WHICH WAS THOUGHT TO BE
INHERENT IN THE ECONOMIC PRESSURE DIRECTED AGAINST THE EMPLOYER BY THE
PICKETING.  IT WAS THIS THREAT WHICH WAS SAID TO TAINT PEACEFUL
PICKETING AS UNLAWFUL CONDUCT TO "RESTRAIN OR COERCE" WHICH THE BOARD
MIGHT FORBID. 

WE FIRST CONSIDER SEC. 8(B)(1)(A) IN THE LIGHT OF SEC. 13, AS
AMENDED, WHICH PROVIDES, IN SUBSTANCE, THAT THE TAFT-HARTLEY ACT SHALL
NOT BE TAKEN AS RESTRICTING OR EXPANDING EITHER THE RIGHT TO STRIKE OR
THE LIMITATIONS OR QUALIFICATIONS ON THAT RIGHT, AS THESE WERE
UNDERSTOOD PRIOR TO 1947, UNLESS "SPECIFICALLY PROVIDED FOR" IN THE ACT
ITSELF.  (FN9)  THE WAGNER ACT CONFERRED UPON THE BOARD WIDE AUTHORITY
TO PROTECT STRIKERS FROM EMPLOYER RETALIATION.  HOWEVER, THE COURT AND
THE BOARD FASHIONED THE DOCTRINE THAT THE BOARD SHOULD DENY
REINSTATEMENT TO STRIKERS WHO ENGAGED IN STRIKES WHICH WERE CONDUCTED
IN AN UNLAWFUL MANNER OR FOR AN UNLAWFUL OBJECTIVE.  SEE FOR EXAMPLE
SOUTHERN S.S. CO. V. LABOR BOARD, 316 U.S. 31; LABOR BOARD V. FANSTEEL
METALLURGICAL CORP., 306 U.S. 240; LABOR BOARD V. SANDS MFG. CO., 306
U.S. 332; AND AMERICAN NEWS CO., 55 N.L.R.B. 1302.  THESE ARE THE
"LIMITATIONS OR QUALIFICATIONS" ON THE RIGHT TO STRIKE REFERRED TO IN
SEC. 13.  SEE S. REP. NO. 105, 80TH CONG., 1ST SESS.  28.  THE BOARD
MAKES NO CLAIM THAT PRIOR TO 1947 IT WAS AUTHORIZED, BECAUSE OF ANY
"LIMITATION" OR "QUALIFICATION," TO ISSUE A CEASE-AND-DESIST ORDER
AGAINST PEACEFUL "RECOGNITIONAL" PICKETING; INDEED THE FULL PROTECTIONS
OF THE NORRIS-LAGUARDIA ACT EXTENDED TO PEACEFUL PICKETING BY MINORITY
UNIONS FOR RECOGNITION.  SEE FUR WORKERS UNION NO. 21238 V. FUR WORKERS
UNION, LOCAL NO. 72, 308 U.S. 522, PER CURIAM AFFIRMING 70 APP. D.C.
122, 105 F.2D 1; LAUF V. SHINNER & CO., 303 U.S. 323.  THEREFORE, SINCE
THE BOARD'S ORDER IN THIS CASE AGAINST PEACEFUL PICKETING WOULD
OBVIOUSLY "IMPEDE" THE RIGHT TO STRIKE, IT CAN ONLY BE SUSTAINED IF
SUCH POWER IS "SPECIFICALLY PROVIDED FOR" IN SEC. 8(B)(1)(A), AS ADDED
BY THE TAFT-HARTLEY ACT.  TO BE SURE, SEC. 13 DOES NOT REQUIRE THAT THE
AUTHORITY FOR THE BOARD ACTION BE SPELLED OUT IN SO MANY WORDS. 
RATHER, SINCE THE BOARD DOES NOT CONTEND THAT SEC. 8(B)(1)(A) EMBODIES
ONE OF THE "LIMITATIONS OR QUALIFICATIONS" ON THE RIGHT TO STRIKE, SEC.
13 DECLARES A RULE OF CONSTRUCTION WHICH CAUTIONS AGAINST AN EXPANSIVE
READING OF THAT SECTION WHICH WOULD ADVERSELY AFFECT THE RIGHT TO
STRIKE, UNLESS THE CONGRESSIONAL PURPOSE TO GIVE IT THAT MEANING
PERSUASIVELY APPEARS EITHER FROM THE STRUCTURE OR HISTORY OF THE
STATUTE.  THEREFORE, SEC. 13 IS A COMMAND OF CONGRESS TO THE COURTS TO
RESOLVE DOUBTS AND AMBIGUITIES IN FAVOR OF AN INTERPRETATION OF SEC.
8(B)(1)(A) WHICH SAFEGUARDS THE RIGHT TO STRIKE AS UNDERSTOOD PRIOR TO
THE PASSAGE OF THE TAFT-HARTLEY ACT. 

THE BOARD ASSERTS THAT THE VERY GENERAL STANDARD IN SEC. 8(B)(1)(A)
VESTS POWER IN THE BOARD TO SIT IN JUDGMENT UPON, AND TO CONDEMN, A
MINORITY UNION'S RESORT TO A SPECIFIC ECONOMIC WEAPON, HERE PEACEFUL
PICKETING.  THE STRUCTURE OF SEC. 8(B), WHICH DEFINES UNFAIR LABOR
PRACTICES, HARDLY SUPPORTS THE BOARD'S CLAIMS.  EARLIER THIS TERM WE
POINTED OUT THAT "CONGRESS HAS BEEN RATHER SPECIFIC WHEN IT HAS COME TO
OUTLAW PARTICULAR ECONOMIC WEAPONS ON THE PART OF UNIONS."  LABOR BOARD
V. INSURANCE AGENTS' INTERNATIONAL UNION, 361 U.S. 477, 498.  WE
REFERRED TO SEC. 8(B)(4) AS ILLUSTRATIVE OF THE CONGRESSIONAL
PRACTICE.  (FN10)  IN THE CONTEXT OF A UNION'S STRIKING TO PROMOTE
ENLARGED MEMBERSHIP, CONGRESS THERE EXPLICITLY PROHIBITED A UNION'S
RESORT TO THE SECONDARY BOYCOTT, TO THE STRIKE TO FORCE EMPLOYERS OR
SELF-EMPLOYED PERSONS TO JOIN UNIONS, AND, VERY PERTINENT HERE, TO THE
"RECOGNITIONAL" STRIKE WHERE ANOTHER UNION IS CERTIFIED.  PLAINLY IF
THE BOARD'S INTERPRETATION IS SUSTAINED, SEC. 8(B)(1)(A) LARGELY
OVERLAPS AT LEAST THIS LAST-MENTIONED PROHIBITION, NAMELY SEC.
8(B)(4)(C), TO THE EXTENT OF MAKING IT ALMOST REDUNDANT.  (FN11)  BUT
THE COURT HAS REJECTED AN ARGUMENT THAT A PROVISION OF SEC. 8(B)(4) IS
A REPETITION OF THE PROHIBITIONS OF SEC. 8(B)(1)(A).  IN INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS V. LABOR BOARD, 341 U.S. 694, THE
COURT, IN HOLDING THAT A PEACEFUL STRIKE TO PROMOTE SELF-ORGANIZATION
WAS PROSCRIBED BY SEC. 8(B)(4)(A) IF ITS OBJECTIVE WAS TO "INDUCE OR
ENCOURAGE" A SECONDARY BOYCOTT, CONTRASTED THE LANGUAGE OF THE TWO
SUBSECTIONS AND LABELED THE WORDS "RESTRAIN OR COERCE" IN SEC.
8(B)(1)(A) A "RESTRICTED PHRASE" TO BE EQUATED WITH "THREAT OF REPRISAL
OR FORCE OR PROMISE OF BENEFIT."  ID., AT 701-703. 

IN THE SENSITIVE AREA OF PEACEFUL PICKETING CONGRESS HAS DEALT
EXPLICITLY WITH ISOLATED EVILS WHICH EXPERIENCE HAS ESTABLISHED FLOW
FROM SUCH PICKETING.  THEREFORE, UNLESS THERE IS THE CLEAREST
INDICATION IN THE LEGISLATIVE HISTORY OF SEC. 8(B)(1)(A) SUPPORTING THE
BOARD'S CLAIM OF POWER UNDER THAT SECTION, WE CANNOT SUSTAIN THE
BOARD'S ORDER HERE.  WE NOW TURN TO AN EXAMINATION OF THE LEGISLATIVE
HISTORY. 

IN THE COMPREHENSIVE REVIEW OF UNION PRACTICES LEADING UP TO THE
ENACTMENT OF THE TAFT-HARTLEY ACT, PICKETING PRACTICES WERE SUBJECTED
TO INTENSIVE INQUIRY BY BOTH HOUSE AND SENATE LABOR COMMITTEES.  THE
SENATE BILL, AS BROUGHT TO THE FLOOR BY THE SENATE LABOR COMMITTEE
REGULATED ORGANIZATIONAL ACTIVITY IN SPECIFIED SITUATIONS.  PROPOSED
SEC. 8(B)(4)(3), NOW SEC. 8(B)(4)(C) OF THE LAW, MADE "RECOGNITIONAL"
PICKETING OF A PRIMARY EMPLOYER UNLAWFUL ONLY WHERE "ANOTHER LABOR
ORGANIZATION HAS BEEN CERTIFIED AS THE REPRESENTATIVE" OF HIS
EMPLOYEES.  SECTION 8(B)(4)(2), NOW SEC. 8(B)(4)(B), PROHIBITED
ATTEMPTS TO FORCE RECOGNITION THROUGH SECONDARY PRESSURE. 

HOWEVER, FIVE MEMBERS OF THE SENATE LABOR COMMITTEE, INCLUDING
SENATORS TAFT AND BALL, BELIEVED THAT THE SENATE BILL DID NOT GO FAR
ENOUGH IN THE REGULATION OF PRACTICES EMPLOYED BY UNIONS FOR
ORGANIZATIONSL PURPOSES.  THESE SENATORS INTRODUCED ON THE FLOOR A
PROPOSED AMENDMENT TO THE COMMITTEE BILL.  THE AMENDMENT AS ORIGINALLY
PHRASED WAS THE COUNTERPART OF SEC. 8(A)(1) APPLICABLE TO EMPLOYERS; IT
WOULD HAVE MADE IT AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
"TO INTERFERE WITH" AS WELL AS "TO RESTRAIN OR COERCE EMPLOYEES IN THE
EXERCISE OF THE RIGHTS GUARANTEED IN SEC. 7  ...  ."  THE WORDS
"INTERFERE WITH" WERE DROPPED DURING THE DEBATE, BUT EXCEPT FOR THIS
CHANGE, THE AMENDMENT BECAME SEC. 8(B)(1)(A). 

THE REPORT OF SUPPLEMENTAL VIEWS WHICH ANNOUNCED THE FIVE SENATORS'
INTENTION TO PROPOSE THE AMENDMENT IDENTIFIES THE ABUSES WHICH THE
HEARD MANY INSTANCES OF UNION COERCION OF EMPLOYEES SUCH AS THAT
BROUGHT ABOUT BY THREATES OF REPRISAL AGAINST EMPLOYEES AND THEIR
FAMILIES IN THE COURSE OF ORGANIZING CAMPAIGNS; ALSO DIRECT
INTERFERENCE BY MASS PICKETING AND OTHER VIOLENCE.  SOME OF THESE ACTS
ARE ILLEGAL UNDER STATE LAW, BUT WE SEE NO REASON WHY THEY SHOULD NOT
ALSO CONSTITUTE UNFAIR LABOR PRACTICES TO BE INVESTIGATED BY THE
NATIONAL LABOR RELATIONS BOARD, AND AT LEAST DEPRIVE THE VIOLATORS OF
ANY PROTECTION FURNISHED BY THE WAGNER ACT."  S. REP. NO. 105, 80TH
CONG., 1ST SESS. 50.  SIMILAR EXPRESSIONS PERVADED THE SENATE DEBATES
ON THE AMENDMENT.  THE NOTE REPEATEDLY SOUNDED IS AS TO THE NECESSITY
FOR PROTECTING INDIVIDUAL WORKERS FROM UNION ORGANIZATIONAL TACTICS
TINGED WITH VIOLENCE, DURESS OR REPRISAL.  SENATOR BALL CITED NUMEROUS
EXAMPLES OF ORGANIZING DRIVES CHARACTERIZED BY THREATS AGAINST
UNORGANIZED WORKERS OF VIOLENCE, JOB REPRISALS AND SUCH REPRESSIVE
ASSERTIONS AS THAT DOUBLE INITIATION FEES WOULD BE CHARGED THOSE WHO
DELAYED JOINING THE UNION.  93 CONG. REC. 4016-4017.  WHEN SENATOR IVES
OBJECTED TO THE WORDS "INTERFERE WITH" AS TOO BROAD, SENATOR TAFT
INSISTED THAT EVEN THOSE WORDS WOULD HAVE A LIMITED APPLICATION AND
WOULD REACH "REPREHENSIBLE" PRACTICES BUT NOT METHODS OF PEACEFUL
PERSUASION.  HE CONTINUED: 

"WHY SHOULD A UNION BE ABLE TO GO TO AN EMPLOYEE AND THREATEN
VIOLENCE IF HE DOES NOT JOIN THE UNION?  WHY SHOULD A UNION BE ABLE TO
SAY TO AN EMPLOYEE, 'IF YOU DO NOT JOIN THIS UNION WE WILL SEE THAT YOU
CANNOT WORK IN THE PLANT'?  ...  WE KNOW THAT SUCH THINGS HAVE ACTUALLY
OCCURRED.  WE KNOW THAT MEN HAVE BEEN THREATENED.  THERE HAVE BEEN MANY
CASES IN WHICH UNIONS HAVE THREATENED MEN OR THEIR WIVES.  THEY HAVE
CALLED ON THEM ON THE TELEPHONE AND INSISTED THAT THEY SIGN BARGAINING
CARDS.  THEY HAVE SAID TO THEM, 'SOONER OR LATER WE ARE GOING TO
ORGANIZE THIS PLANT WITH A CLOSED SHOP, AND YOU WILL BE OUT.'  ...  "
93 CONG. REC. 4021. 

IT IS TRUE THAT HERE AND THERE IN THE RECORD OF THE DEBATES THERE ARE
ISOLATED REFERENCES TO INSTANCES OF CONDUCT WHICH MIGHT SUGGEST A
BROADER REACH OF THE AMENDMENT.  SEE FOR EXAMPLE 93 CONG. REC. 4023
4024.  (FN12)  BUT THEY APPEAR MORE AS ASIDES IN A DEBATE, THE CENTRAL
THEME OF WHICH WAS NOT THE CURTAILMENT OF THE RIGHT PEACEFULLY TO
STRIKE, EXCEPT AS PROVIDED IN SEC. 8(B)(4), BUT THE ELIMINATION OF THE
USE OF REPRESSIVE TACTICS BORDERING ON VIOLANCE OR INVOLVING
PARTICULARIZED THREATS OF ECONOMIC REPRISAL.  THE PLAINEST INDICATION
NEGATING AN INTENTION TO RESTRICT THE USE BY UNIONS OF METHODS OF
PEACEFUL PERSUASION, INCLUDING PEACEFUL PICKETING, IS SEEN IN THE
COMMENTS OF SENATOR TAFT NEAR THE CLOSE OF THE DEBATE.  HE SAID: 

"IT SEEMS TO ME VERY CLEAR THAT SO LONG AS A UNION-ORGANIZING DRIVE
IS CONDUCTED BY PERSUASION, BY PROPAGANDA, SO LONG AS IT HAS EVERY
LEGITIMATE PURPOSE, THE BOARD CANNOT IN ANY WAY INTERFERE WITH IT  ...
."  93 CONG. REC. 4434. 

     *         *         *         *   * 

"THE EFFECT OF THE PENDING AMENDMENT IS THAT THE BOARD MAY CALL THE
UNION BEFORE THEM, EXACTLY AS IT HAS CALLED THE EMPLOYER, AND SAY,
'HERE ARE THE RULES OF THE GAME.  YOU MUST CEASE AND DESIST FROM
COERCING AND RESTRAINING THE EMPLOYEES WHO WANT TO WORK FROM GOING TO
WORK AND EARNING THE MONEY WHICH THEY ARE ENTITLED TO EARN.'  THE BOARD
MAY SAY, 'YOU CAN PERSUADE THEM; YOU CAN PUT UP SIGNS; YOU CAN CONDUCT
ANY FORM OF PROPAGANDA YOU WANT TO IN ORDER TO PERSUADE THEM, BUT YOU
CANNOT, BY THREAT OF FORCE OR THREAT OF ECONOMIC REPRISAL, PREVENT THEM
FROM EXERCISING THEIR RIGHT TO WORK.'  AS I SEE IT, THAT IS THE EFFECT
OF THE AMENDMENT."  93 CONG. REC. 4436. 

     *   *         *         *         * 

"THE SENATOR SAYS IT WILL SLOW UP ORGANIZATIONAL DRIVES.  IT WILL
SLOW UP ORGANIZATIONAL DRIVES ONLY IF THEY ARE ACCOMPANIED BY THREATS
AND COERCION.  THE CEASE-AND-DESIST ORDER WILL BE DIRECTED AGAINST THE
USE OF THREATS AND COERCION.  IT WILL NOT BE DIRECTED AGAINST THE USE
OF PROPAGANDA OR THE USE OF PERSUASION, OR AGAINST THE USE OF ANY OF
THE OTHER PEACEFUL METHODS OF ORGANIZING EMPLOYEES. 

"MR. PRESIDENT, I CAN SEE NOTHING IN THE PENDING MEASURE WHICH, AS
SUGGESTED BY THE SENATOR FROM OREGON, WOULD IN SOME WAY OUTLAW
STRIKES.  IT WOULD OUTLAW THREATS AGAINST EMPLOYEES.  IT WOULD NOT
OUTLAW ANYBODY STRIKING WHO WANTED TO STRIKE.  IT WOULD NOT PREVENT
ANYONE USING THE STRIKE IN A LEGITIMATE WAY, CONDUCTING PEACEFUL
PICKETING, OR EMPLOYING PERSUASION.  ALL IT WOULD DO WOULD BE TO OUTLAW
SUCH RESTRAINT AND COERCION AS WOULD PREVENT PEOPLE FROM GOING TO WORK
IF THEY WISHED TO GO TO WORK."  IBID. 

THIS APPROACH IN THE SENATE IS IN SHARP CONTRAST TO THE HOUSE VIEW,
WHICH WAS THAT PICKETING SHOULD BE STRICTLY CIRCUMSCRIBED.  THE HOUSE
PASSED A BILL IMPOSING DRASTIC LIMITATIONS UPON THE RIGHT TO PICKET. 
AND THREATS OF FORCE, BUT ESPECIALLY PERTINENT HERE ARE SECS. 12(A)(2)
AND 12(A)(3)(C) WHICH WENT FAR BEYOND THIS.  THE FORMER WOULD HAVE
OUTLAWED ALL PICKETING OF "AN EMPLOYER'S PREMISES FOR THE PURPOSE OF
LEADING PERSONS TO BELIEVE THAT THERE EXISTS A LABOR DISPUTE INVOLVING
SUCH EMPLOYER, IN ANY CASE IN WHICH THE EMPLOYEES ARE NOT INVOLVED IN A
LABOR DISPUTE WITH THEIR EMPLOYER."  AND THE LATTER WOULD HAVE BANNED
PICKETING "AN OBJECT OF WHICH WAS (I) TO COMPEL AN EMPLOYER TO
RECOGNIZE FOR COLLECTIVE BARGAINING A REPRESENTATIVE NOT CERTIFIED
UNDER SECTION 9  ...  OR (III) TO COMPEL AN EMPLOYER TO VIOLATE ANY LAW
...  ."  H.R. 3020, 80TH CONG., 1ST SESS. 47-49.  PLAINLY THE LOCAL'S
CONDUCT IN THE INSTANT CASE WOULD HAVE BEEN PROHIBITED IF THE HOUSE
BILL HAD BECOME LAW. 

BUT THE HOUSE CONFEREES ABANDONED THE HOUSE BILL IN CONFERENCE AND
ACCEPTED THE SENATE PROPOSAL.  H.R. CONF. REP. NO. 510 ON H.R. 3020,
80TH CONG., 1ST SESS. 42.  (FN13)  THEY JOINED IN A CONFERENCE REPORT
WHICH STATED THAT "THE PRIMARY STRIKE FOR RECOGNITION (WITHOUT A BOARD
CERTIFICATION) WAS NOT PROHIBITED."  ID., AT 43. 

THIS HISTORY MAKES PERTINENT WHAT THE COURT SAID IN LOCAL 1976,
UNITED BROTHERHOOD OF CARPENTERS V. LABOR BOARD, 357 U.S. 93, 99-100:
"IT IS RELEVANT TO RECALL THAT THE TAFT-HARTLEY ACT WAS, TO A MARKED
DEGREE, THE RESULT OF CONFLICT AND COMPROMISE BETWEEN STRONG CONTENDING
FORCES AND DEEPLY HELD VIEWS ON THE ROLE OF ORGANIZED LABOR IN THE FREE
ECONOMIC LIFE OF THE NATION AND THE APPROPRIATE BALANCE TO BE STRUCK
BETWEEN THE UNCONTROLLED POWER OF MANAGEMENT AND LABOR TO FURTHER THEIR
RESPECTIVE INTERESTS.  THIS IS RELEVANT IN THAT IT COUNSELS WARINESS IN
FINDING BY CONSTRUCTION A BROAD POLICY  ...  AS SUCH WHEN, FROM THE
WORDS OF THE STATUTE ITSELF, IT IS CLEAR THAT THOSE INTERESTED IN JUST
SUCH A CONDEMNATION WERE UNABLE TO SECURE ITS EMBODIMENT IN ENACTED
LAW."  CERTAINLY DUE REGARD FOR THIS ADMONITION QUITE APART FROM THE
CAVEAT IN SEC. 13 REQUIRES CAUTION AGAINST FINDING IN THE NONSPECIFIC,
INDEED VAGUE, WORDS, "RESTRAIN OR COERCE" THAT CONGRESS INTENDED THE
BROAD SWEEP FOR WHICH THE BOARD CONTENDS. 

WE CONCLUDE THAT THE BOARD'S INTERPRETATION OF SEC. 8(B)(1)(A) FINDS
SUPPORT NEITHER IN THE WAY CONGRESS STRUCTURED SEC. 8(B) NOR IN THE
LEGISLATIVE HISTORY OF SEC. 8(B)(1)(A).  RATHER IT SEEMS CLEAR, AND WE
HOLD, THAT CONGRESS IN THE TAFT-HARTLEY ACT AUTHORIZED THE BOARD TO
REGULATE PEACEFUL "RECOGNITIONAL" PICKETING ONLY WHEN IT IS EMPLOYED TO
ACCOMPLISH OBJECTIVES SPECIFIED IN SEC. 8(B)(4); AND THAT SEC.
8(B)(1)(A) IS A GRANT OF POWER TO THE BOARD LIMITED TO AUTHORITY TO
PROCEED AGAINST UNION TACTICS INVOLVING VIOLENCE, INTIMIDATION, AND
REPRISAL OR THREATS THEREOF - CONDUCT INVOLVING MORE THAN THE GENERAL
PRESSURES UPON PERSONS EMPLOYED BY THE AFFECTED EMPLOYERS IMPLICIT IN
ECONOMIC STRIKES. 

THE BOARD'S OWN INTERPRETATION FOR NEARLY A DECADE AFTER THE PASSAGE
OF THE TAFT-HARTLEY ACT GAVE SEC. 8(B)(1)(A) THIS LIMITED APPLICATION. 
SEE, E.G., NATIONAL MARITIME UNION, 78 N.L.R.B. 971, ENFORCEMENT
GRANTED, 175 F.2D 686; LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS
(WATSON'S SPECIALTY STORE), 80 N.L.R.B. 533, ENFORCEMENT GRANTED, 181
F.2D 126, AFFIRMED, 341 U.S. 707; PERRY NORVELL CO., 80 N.L.R.B. 225;
MIAMI COPPER CO., 92 N.L.R.B.  322; MEDFORD BUILDING & CONSTRUCTION
TRADES COUNCIL (KOGAP LUMBER INDUSTRIES), 96 N.L.R.B.  165; DISTRICT
50, UNITED MINE WORKERS (TUNGSTEN MINING CORP.), 106 N.L.R.B. 903.  IN
PERRY NORVELL, SUPRA, AT 239, THE BOARD DECLARED: 

"BY SECTION 8(B)(1)(A), CONGRESS SOUGHT TO FIX THE RULES OF THE GAME,
TO INSURE THAT STRIKES AND OTHER ORGANIZATIONAL ACTIVITIES OF EMPLOYEES
WERE CONDUCTED PEACEABLY BY PERSUASION AND PROPAGANDA AND NOT BY
PHYSICAL FORCE, OR THREATS OF FORCE, OR OF ECONOMIC REPRISAL.  IN THAT

THE BOARD DISMISSES THESE CASES AS "DUBIOUS PRECEDENT."  119
N.L.R.B., AT 246.  WE THINK THEY GAVE A SOUNDER CONSTRUCTION TO SEC.
8(B)(1)(A) THAN THE BOARD'S CONSTRUCTION IN THE PRESENT CASE. 

WE ARE CONFIRMED IN OUR VIEW BY THE ACTION OF CONGRESS IN PASSING THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959.  THAT ACT GOES
BEYOND THE TAFT-HARTLEY ACT TO LEGISLATE A COMPREHENSIVE CODE GOVERNING
ORGANIZATIONAL STRIKES AND PICKETING AND DRAWS NO DISTINCTION BETWEEN
"ORGANIZATIONAL" AND "RECOGNITIONAL" PICKETING.  WHILE PROSCRIBING
PEACEFUL ORGANIZATIONAL STRIKES IN MANY SITUATIONS, IT ALSO ESTABLISHES
SAFEGUARDS AGAINST THE BOARD'S INTERFERENCE WITH LEGITIMATE PICKETING
ACTIVITY.  SEE SEC. 8(B)(7)(C).  (FN14)  WERE SEC. 8(B)(1)(A) TO HAVE
THE SWEEP CONTENDED FOR BY THE BOARD, THE BOARD MIGHT PROCEED AGINST
PEACEFUL PICKETING IN DISREGARD OF THESE SAFEGUARDS.  TO BE SURE, WHAT
CONGRESS DID IN 1959 DOES NOT ESTABLISH WHAT IT MEANT IN 1947. 
HOWEVER, AS ANOTHER MAJOR STEP IN AN EVOLVING PATTERN OF REGULATION OF
UNION CONDUCT, THE 1959 ACT IS A RELEVANT CONSIDERATION.  COURTS MAY
PROPERLY TAKE INTO ACCOUNT THE LATER ACT WHEN ASKED TO EXTEND THE REACH
OF THE EARLIER ACT'S VAGUE LANGUAGE TO THE LIMITS WHICH, READ
LITERALLY, THE WORDS MIGHT PERMIT.  WE AVOID THE INCONGRUOUS RESULT
IMPLICIT IN THE BOARD'S CONSTRUCTION BY READING SEC. 8(B)(1)(A), WHICH
IS ONLY ONE OF MANY INTERWOVEN SECTIONS IN A COMPLEX ACT, MINDFUL OF
THE MANIFEST PURPOSE OF THE CONGRESS TO FASHION A COHERENT NATIONAL
LABOR POLICY.  AFFIRMED. 

FN1  SECTION 7, AS AMENDED BY THE TAFT-HARTLEY ACT, PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)."  49 STAT.
452, AS AMENDED, 61 STAT. 140, 29 U.S.C. SEC. 157. 

FN2  SECTION 8(B)(1)(A) PROVIDES IN PERTINENT PART: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS
AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7 ...  ."  61 STAT. 141, 29 U.S.C. SEC.
158(B)(1)(A). 

FN3  THE NINE STRIKERS WHO HAD BEEN REPLACED WERE NOT PERMITTED TO
VOTE IN THE ELECTION.  CF. SEC. 9(C)(3), AS AMENDED BY SEC. 702 OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, 73 STAT. 542,
WHICH PERMITS STRIKING EMPLOYEES WHO HAVE BEEN REPLACED TO VOTE UNDER
CERTAIN CIRCUMSTANCES. 

FN4  ACCORD:  LABOR BOARD V. INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL NO. 182, 272 F.2D 85 (C.A.2D CIR.).  CONTRA:  LABOR BOARD V.
UNITED RUBBER WORKERS, 269 F.2D 694 (C.A. 4TH CIR.), CERT. GRANTED AND
JUDGMENT REVERSED, POST, P. 329. 

FN5  NEW SEC. 8(B)(7) PROVIDES: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS
AGENTS: 

     *         *         *         *         * 

"(7)  TO PICKET OR CAUSE TO BE PICKETED, OR THREATEN TO PICKET OR
CAUSE TO BE PICKETED, ANY EMPLOYER WHERE AN OBJECT THEREOF IS FORCING
OR REQUIRING AN EMPLOYER TO RECOGNIZE OR BARGAIN WITH A LABOR
ORGANIZATION AS THE REPRESENTATIVE OF HIS EMPLOYEES, OR FORCING OR
REQUIRING THE EMPLOYEES OF AN EMPLOYER TO ACCEPT OR SELECT SUCH LABOR
ORGANIZATION AS THEIR COLLECTIVE BARGAINING REPRESENTATIVE, UNLESS SUCH
LABOR ORGANIZATION IS CURRENTLY CERTIFIED AS THE REPRESENTATIVE OF SUCH
EMPLOYEES: 

"(A)  WHERE THE EMPLOYER HAS LAWFULLY RECOGNIZED IN ACCORDANCE WITH
THIS ACT ANY OTHER LABOR ORGANIZATION AND A QUESTION CONCERNING
REPRESENTATION MAY NOT APPROPRIATELY BE RAISED UNDER SECTION 9(C) OF
THIS ACT: 

"(B)  WHERE WITHIN THE PRECEDING TWELVE MONTHS A VALID ELECTION UNDER

"(C)  WHERE SUCH PICKETING HAS BEEN CONDUCTED WITHOUT A PETITION
UNDER SECTION 9(C) BEING FILED WITHIN A REASONABLE PERIOD OF TIME NOT
TO EXCEED THIRTY DAYS FROM THE COMMENCEMENT OF SUCH PICKETING:
PROVIDED, THAT WHEN SUCH A PETITION HAS BEEN FILED THE BOARD SHALL
FORTHWITH, WITHOUT REGARD TO THE PROVISIONS OF SECTION 9(C)(1) OR THE
ABSENCE OF A SHOWING OF A SUBSTANTIAL INTEREST ON THE PART OF THE LABOR
ORGANIZATION, DIRECT AN ELECTION IN SUCH UNIT AS THE BOARD FINDS TO BE
APPROPRIATE AND SHALL CERTIFY THE RESULTS THEREOF:  PROVIDED FURTHER,
THAT NOTHING IN THIS SUBPARAGRAPH (C) SHALL BE CONSTRUED TO PROHIBIT
ANY PICKETING OR OTHER PUBLICITY FOR THE PURPOSE OF TRUTHFULLY ADVISING
THE PUBLIC (INCLUDING CONSUMERS) THAT AN EMPLOYER DOES NOT EMPLOY
MEMBERS OF, OR HAVE A CONTRACT WITH, A LABOR ORGANIZATION, UNLESS AN
EFFECT OF SUCH PICKETING IS TO INDUCE ANY INDIVIDUAL EMPLOYED BY ANY
OTHER PERSON IN THE COURSE OF HIS EMPLOYEMNT, NOT TO PICK UP, DELIVER
OR TRANSPORT ANY GOODS OR NOT TO PERFORM ANY SERVICES.    "NOTHING IN
THIS PARAGRAPH (7) SHALL BE CONSTRUED TO PERMIT ANY ACT WHICH WOULD
OTHERWISE BE AN UNFAIR LABOR PRACTICE UNDER THIS SECTION 8(B)."  73
STAT. 544. 

FN6  THE SOLICITOR GENERAL STATED IN A MEMORANDUM FILED IN THIS COURT
ON OCTOBER 21, 1959, IN ANOTHER CASE - RUBBER WORKERS V. LABOR BOARD,
POST, P. 329 - WITH REFERENCE TO THE SEVERAL CASES RAISING THE "SO
CALLED CURTIS ISSUE," THAT THE PASSAGE OF THE 1959 ACT INJECTED
"ADDITIONAL CONSIDERATIONS WHICH MAY, IN THE COURT'S VIEW, WARRANT
REMAND  ...  TO THE BOARD FOR FURTHER EXAMINATION IN THE LIGHT OF" THE
1959 ACT.  HOWEVER, REMAND OF THIS CASE WOULD SERVE NO PURPOSE.  AFTER
THE SOLICITOR GENERAL MADE THE SUGGESTION THE BOARD, ON NOVEMBER 17,
1959, CONSIDERED A CASE WHICH AROSE PRIOR TO THE 1959 ACT.  THE BOARD,
WITH FOUR OF ITS FIVE MEMBERS SITTING, EXAMINED ITS POSITION AS TO THE
SCOPE OF SEC. 8(B)(1)(A) IN THE LIGHT OF THE 1959 ACT AND BY A VOTE OF
THREE TO ONE DECIDED THAT THE DOCTRINE ANNOUNCED IN THIS, THE CURTIS
BROS., CASE WAS IN NO WAY AFFECTED BY THE 1959 ACT, STATING THAT
"CONTRARY TO OUR DISSENTING COLLEAGUE, WE BELIEVE THAT THE NEW
PROVISIONS CONCERNING RECOGNITION AND/OR ORGANIZATIONAL PICKETING
MERELY AMPLIFY THE  ...  SECTION 8(B) PROSCRIPTIONS  ...  ."  LOCAL
208, INTERNATIONAL BROTHERHOOD OF TEAMSTERS (SIERRA FURNITURE CO.), 125
N.L.R.B. 159, 162, N. 6. 

FN7  THE BOARD DOES NOT RELY, AS SUPPORT FOR ITS ORDER HERE UNDER
SEC. 8(B)(1)(A), UPON THE FACT THAT THE LOCAL PICKETED AFTER THE
ELECTION.  IN LOCAL 208, INTERNATIONAL BROTHERHOOD OF TEAMSTERS (SIERRA
FURNITURE CO.), 125 N.L.R.B. 159, A LIKE ORDER WAS ISSUED AGAINST
PEACEFUL "RECOGNITIONAL" PICKETING ALTHOUGH NO ELECTION HAD BEEN HELD. 
WE AGREE WITH THE BOARD THAT IF SEC. 8(B)(1)(A) CONFERS POWER ON THE
BOARD TO PROCEED AGAINST SUCH PICKETING, CONGRESS DID NOT LIMIT ITS
APPLICATION TO PICKETING FOLLOWING THE CONDUCT OF AN ELECTION AT WHICH
THE EMPLOYEES REJECT THE UNION AS THEIR REPRESENTATIVE. 

FN8  THE BOARD DOES NOT SAY, HOWEVER, THAT A UNION WHICH DOES NOT
REPRESENT A MAJORITY OF THE EMPLOYEES WILL ALWAYS VIOLATE SEC.
8(B)(1)(A) IF IT PEACEFULLY PICKETS AN EMPLOYER TO ORGANIZE HIS
EMPLOYEES, EVEN, AS HERE, IF THE PICKETING IS CARRIED ON AFTER THE
UNION HAS BEEN REJECTED BY THE EMPLOYEES IN A BOARD-CONDUCTED
ELECTION.  THE BOARD SAYS IN ITS BRIEF THAT THE PICKETING IS
"ORGANIZATIONAL" AND NOT "RECOGNITIONAL" IF ITS PURPOSE IS "MERELY TO
ORGANIZE THE EMPLOYEES, WITH A VIEW TO DEMANDING RECOGNITION IN THE
FUTURE SHOULD MAJORITY SUPPORT BE ACQUIRED."  THE BOARD'S VIEW IS THAT,
IF THE PICKETING IS "ORGANIZATIONAL," A DIFFERENT QUESTION MAY BE
PRESENTED UNDER SEC. 8(B)(1)(A) - THAT IN SUCH CASE ITS FUNCTION TO
BALANCE THE COMPETING RIGHTS OF THE UNION AND THE EMPLOYEES UNDER SEC.
7 MAY BE INVOKED, AND THE PICKETING FOUND TO BE PRIVILEGED BECAUSE THE
BALANCE MAY BE STRUCK IN FAVOR OF "A COMPETING INTEREST WHICH THE ACT
(SEC. 7) RECOGNIZES," NAMELY, THE RIGHT TO FORM, JOIN OR ASSIST LABOR
ORGANIZATIONS. 

IF SEC. 8(B)(1)(A) EMPOWERS THE BOARD TO PROCEED AGAINST PEACEFUL
PICKETING IN ANY CIRCUMSTANCES, THE VALIDITY OF A DISTINCTION IN
COVERAGE BETWEEN PEACEFUL "ORGANIZATIONAL" AND "RECOGNITIONAL"
PICKETING HAS BEEN CHALLENGED.  SEE COX, SOME CURRENT PROBLEMS IN LABOR
LAW:  AN APPRAISAL, 35 L.R.R.M. 48, 53-57; BORNSTEIN, ORGANIZATIONAL
PICKETING IN AMERICAN LAW, 46 KY. L.J. 25; ISAACSON, ORGANIZATIONAL
PICKETING:  WHAT IS THE LAW?  - OUGHT THE LAW TO BE CHANGED?  8 BUFFALO
L.R. 345.  NEW SEC. 8(B)(7) DOES NOT MAKE THE DISTINCTION. 

FN9  SECTION 13 PROVIDES: 

"NOTHING IN THIS ACT, EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN,
SHALL BE CONSTRUED SO AS EITHER TO INTERFERE WITH OR IMPEDE OR DIMINISH
IN ANY WAY THE RIGHT TO STRIKE, OR TO AFFECT THE LIMITATIONS OR
QUALIFICATIONS ON THAT RIGHT."  61 STAT. 151, 29 U.S.C. SEC. 163. 

PICKETING HAS BEEN EQUATED WITH STRIKING FOR THE PURPOSES OF SEC.
13.  SEE, E.G., LABOR BOARD V. INTERNATIONAL RICE MILLING CO., 341 U.S.
665.  CF. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL NO. 807
(SCHULTZ REFRIGERATED SERVICE, INC.), 87 N.L.R.B. 502. 

FN10  SECTION 8(B)(4) PROVIDES: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS
AGENTS: 

*         *         *         *         * 

"(4)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS:  (A) FORCING OR
REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR
EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON; (B) FORCING OR REQUIRING ANY OTHER
EMPLOYER TO RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE
REPRESENTATIVE OF HIS EMPLOYEES UNLESS SUCH LABOR ORGANIZATION HAS BEEN
CERTIFIED AS THE REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS
OF SECTION 9; (C) FORCING OR REQUIRING ANY EMPLOYER TO RECOGNIZE OR
BARGAIN WITH A PARTICULAR LABOR ORGANIZATION AS THE REPRESENTATIVE OF
HIS EMPLOYEES IF ANOTHER LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE
REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS OF SECTION 9; (D)
FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE,
CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION
OR IN ANOTHER TRADE, CRAFT, OR CLASS, UNLESS SUCH EMPLOYER IS FAILING
TO CONFORM TO AN ORDER OR CERTIFICATION OF THE BOARD DETERMINING THE
BARGAINING REPRESENTATIVE FOR EMPLOYEES PERFORMING SUCH WORK:
PROVIDED, THAT NOTHING CONTAINED IN THIS SUBSECTION (B) 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." 

FN11  IF PEACEFUL "RECOGNITIONAL" PICKETING BY A MINORITY UNION MAY
BE PROHIBITED UNDER SEC. 8(B)(1)(A) WHENEVER IT OCCURS, THE ONLY
INDEPENDENT COVERAGE OF SEC. 8(B)(4)(C) WOULD BE WHEN A MAJORITY UNION
PICKETS FOR RECOGNITION IN THE FACE OF ANOTHER UNION'S BEING
CERTIFIED.  ALTHOUGH SEC. 8(B)(4)(C) MAY COVER SUCH A SITUATION, A
QUESTION WHICH WE DO NOT HAVE TO DECIDE, ANY SUGGESTION THAT IT WAS
PLACED IN THE STATUTE PRIMARILY BECAUSE OF A SOLICITUDE FOR A MINORITY
UNION WHOSE CERTIFICATION IS FORMALLY UNREVOKED IS WITHOUT ANY SUPPORT
IN THE LEGISLATIVE HISTORY.  SEE S. REP. NO. 105, 80TH CONG., 1ST SESS.
22; H.R. CONF. REP. NO. 510 ON H.R. 3020, 80TH CONG., 1ST SESS. 44; 93
CONG. REC. 3838. 

FN12  IT IS NOT AT ALL CLEAR THAT THESE REFERENCES SUPPORT THE
SUGGESTED INFERENCE.  THE CONTEXT IN WHICH THEY APPEAR IS THAT EARLY IN
THE DEBATE SENATOR PEPPER HAD URGED THAT EMPLOYEES DO NOT NEED
PROTECTION FROM UNION LEADERS BECAUSE THESE LEADERS CAN BE CONTROLLED
THROUGH UNION ELECTIONS.  SENATOR TAFT DENIED THIS, AND GAVE ONE
EXAMPLE IN WHICH A UNION WHICH REPRESENTED SOME EMPLOYEES IN THE PLANT
SEEKING TO ORGANIZE OTHER UNWILLING EMPLOYEES, "COERCED THEM" BY
THREATS TO "CLOSE DOWN" THE PLANT IN WHICH THEY WORKED THEREBY
DEPRIVING THEM OF THEIR JOBS. 

"THE DOCKMEN IN THAT CASE WERE NOT STRIKING FOR ANY PARTICULAR
BENEFIT FOR THEMSELVES, BUT THEY WERE STRIKING TO COERCE THE OTHER
EMPLOYEES TO LEAVE THE UNION OF WHICH THEY WERE MEMBERS, AND TO JOIN
THE OTHER UNION - CLEARLY AN IMPROPER COURSE OF ACTION, AND CLEARLY A
MATTER WHICH SHOULD BE RESTRAINED BY THE NATIONAL LABOR RELATIONS
BOARD."  93 CONG. REC. 4023. 

AGAIN, REPLYING TO SENATOR PEPPER, SENATOR TAFT CITED AN INSTANCE IN
WHICH PICKETING CLOSED A PLANT FOR SEVERAL MONTHS.  SENATOR TAFT
OBSERVED, "COERCION IS NOT MERELY AGAINST UNION MEMBERS; IT MAY BE
AGAINST ALL EMPLOYEES."  93 CONG. REC. 4024. 

FN13  THE CONFERENCE REPORT STATES THAT SEC. 8(B)(1)(A) OF THE SENATE
VERSION COVERS "ALL OF THE ACTIVITIES WHICH WERE PROSCRIBED IN SECTION
12(A)(1) OF THE HOUSE BILL AS UNLAWFUL CONCERTED ACTIVITIES AND SOME OF
THE ACTIVITIES WHICH WERE PROSCRIBED IN THE OTHER PARAGRAPHS OF SECTION
12(A)." 

FN14  SEE NOTE 5, SUPRA. 

MEMORANDUM OF MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE FRANKFURTER
AND MR. JUSTICE WHITTAKER JOIN. 

AT THE TIME THE WRIT OF CERTIORARI WAS GRANTED IN THIS CASE, IT
CLEARLY APPEARED THAT THERE WAS INVOLVED AN "IMPORTANT QUESTION OF
FEDERAL LAW WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT." 
SEE RULE 19, OF THE REVISED RULES OF THE SUPREME COURT OF THE UNITED
STATES.  SUBSEQUENTLY, HOWEVER, CONGRESS ENACTED THE LABOR-MANAGEMENT
REPORTING AND DISCLOSURE ACT OF 1959.  SECTION 704(C) OF THAT STATUTE
ADDED TO THE NATIONAL LABOR RELATIONS ACT A NEW PROVISION, SEC.
8(B)(7), WHICH BANS PICKETING FOR RECOGNITION OR ORGANIZATIONAL
PURPOSES WHERE:  (A) THE EMPLOYER IS LAWFULLY RECOGNIZING ANOTHER LABOR
ORGANIZATION AND A QUESTION CONCERNING REPRESENTATION MAY NOT
APPROPRIATELY BE RAISED UNDER SEC. 9; (B) WITHIN THE PRECEDING 12
MONTHS A VALID ELECTION HAS BEEN CONDUCTED; OR (C) THE PICKETING HAS
BEEN GOING ON FOR AN UNREASONABLE PERIOD OF TIME WITHOUT A
REPRESENTATION PETITION HAVING BEEN FILED.  SEE, ANTE, P. 277, NOTE 5. 

THIS NEW STATUTORY PROVISION SEEMS SQUARELY TO COVER THE TYPE OF
CONDUCT INVOLVED HERE, AND I WOULD REMAND THIS CASE TO THE BOARD FOR
RECONSIDERATION IN THE LIGHT OF THE 1959 LEGISLATION, AS SUGGESTED BY
THE SOLICITOR GENERAL.* 

*THE SINGLE SENTENCE IN A FOOTNOTE TO AN OPINION JOINED BY BUT THREE
MEMBERS OF THE BOARD, REFERRED TO IN NOTE 6 OF THE COURT'S OPINION,
ANTE, P. 279, HARDLY REFLECTS THE KIND OF RECONSIDERATION WHICH I HAVE
IN MIND, AND CERTAINLY DOES NOT STAND IN THE WAY OF A MORE THOROUGH RE
EXAMINATION BY THE BOARD. 
..END :


















FEDERAL TRADE COMMISSION V. TRAVELERS HEALTH ASSOCIATION 362 U.S. 293 


NO. 51.  ARGUED DECEMBER 10, 1959 - DECIDED MARCH 28, 1960 - 262 F.2D
241, JUDGMENT VACATED AND CASE REMANDED. 


RESPONDENT, A NEBRASKA CORPORATION ENGAGED IN THE BUSINESS OF SELLING
HEALTH INSURANCE TO RESIDENTS OF ALL STATES, IS LICENSED ONLY IN
NEBRASKA AND VIRGINIA.  ALL OF ITS BUSINESS IS TRANSACTED BY MAIL FROM
AN OFFICE IN NEBRASKA, WHERE POLICIES ARE ISSUED, PREMIUMS ARE PAID AND
CLAIMS ARE FILED.  A NEBRASKA STATUTE PROHIBITS UNFIAR OR DECEPTIVE
PRACTICES IN THE INSURANCE BUSINESS THERE OR "IN ANY OTHER STATE." 
HELD:  AS TO ALLEGED DECEPTIVE PRACTICES OUTSIDE THE STATE OF NEBRASKA,
THIS STATUTE IS NOT SUFFICIENT TO BRING RESPONDENT WITHIN SEC. 2(B) OF
THE MCCARRAN-FERGUSON ACT, WHICH EXEMPTS THE INSURANCE BUSINESS FROM
THE FEDERAL TRADE COMMISSION ACT TO THE EXTENT THAT IT IS "REGULATED BY
STATE LAW."  PP. 294-302. 

(A)  FEDERAL TRADE COMMISSION V. NATIONAL CASUALTY CO., 357 U.S. 560,
DISTINGUISHED.  PP. 297-298. 

(B)  THE STATE REGULATION WHICH CONGRESS PROVIDED SHOULD OPERATE TO
DISPLACE THE FEDERAL TRADE COMMISSION ACT MEANS REGULATION BY THE STATE
IN WHICH THE DECEPTION IS PRACTICED AND HAS ITS IMPACT.   PP. 298-302. 

FEDERAL TRADE COMMISSION V. TRAVELERS HEALTH ASSOCIATION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

TRADE COMMISSION ACT,  ... SHALL BE APPLICABLE TO THE BUSINESS OF
INSURANCE TO THE EXTENT THAT SUCH BUSINESS IS NOT REGULATED BY STATE
LAW."  (FN1)  THE STATE IN WHICH THE RESPONDENT IS INCORPORATED
PROHIBITS UNFAIR OR DECEPTIVE PRACTICES IN THE INSURANCE BUSINESS THERE
OR "IN ANY OTHER STATE."  THE QUESTION PRESENTED IN WHETHER THE
RESPONDENT'S INTERSTATE MAIL ORDER INSURANCE BUSINESS IS THEREBY
"REGULATED BY STATE LAW" SO AS TO INSULATE ITS PRACTICES IN COMMERCE
FROM THE REGULATIVE AUTHORITY OF THE FEDERAL TRADE COMMISSION. 

THE RESPONDENT, A NEBRASKA CORPORATION, IS ENGAGED IN THE BUSINESS OF
SELLING HEALTH INSURANCE.  LICENSED ONLY IN THE STATES OF NEBRASKA AND
VIRGINIA, THE RESPONDENT SELLS NO POLICIES THROUGH AGENTS, BUT FROM ITS
OFFICE IN OMAHA TRANSACTS BUSINESS BY MAIL WITH RESIDENTS OF EVERY
STATE.  IT SOLICITS BUSINESS BY MAILING CIRCULAR LETTERS TO PROSPECTIVE
BUYERS RECOMMENDED BY EXISTING POLICYHOLDERS.  ALL BUSINESS IS CARRIED
ON BY DIRECT MAIL FROM THE OMAHA OFFICE; IT IS FROM THERE THAT POLICIES
ARE ISSUED, AND THERE THAT PREMIUMS ARE PAID AND CLAIMS FILED. 

A NEBRASKA STATUTE PROVIDES:  "NO PERSON SHALL ENGAGE IN THIS STATE
IN UNFAIR METHODS OF COMPETITION OR IN UNFAIR OR DECEPTIVE ACTS AND
PRACTICES IN THE CONDUCT OF THE BUSINESS OF INSURANCE.  NO PERSON
DOMICILED IN OR RESIDENT OF THIS STATE SHALL ENGAGE IN UNFAIR METHODS
OF COMPETITION OR IN UNFAIR OR DECEPTIVE ACTS AND PRACTICES IN THE
CONDUCT OF THE BUSINESS OF INSURANCE IN ANY OTHER STATE, TERRITORY,
POSSESSION, PROVINCE, COUNTRY, OR DISTRICT."  (FN2) 

THE COURT OF APPEALS SET ASIDE A CEASE-AND-DESIST ORDER OF THE
FEDERAL TRADE COMMISSION PROHIBITING THE RESPONDENT FROM MAKING CERTAIN
STATEMENTS AND REPRESENTATIONS IN ITS CIRCULAR LETTERS FOUND BY THE
COMMISSION TO BE MISLEADING AND DECEPTIVE IN VIOLATION OF THE FEDERAL
TRADE COMMISSION ACT.  15 U.S.C. SEC. 45.  THE COURT CONCLUDED THAT
"WITH EVERY ACTIVITY OF THE RESPONDENT, IN THE CONDUCT OF ITS BUSINESS,
SUBJECT TO THE SUPERVISION AND CONTROL OF THE DIRECTOR OF INSURANCE OF
NEBRASKA, WE THINK THAT THE RESPONDENT'S PRACTICES IN THE SOLICITATION
OF INSURANCE BY MAIL IN NEBRASKA OR ELSEWHERE REASONABLY AND
REALISTICALLY CANNOT BE HELD TO BE UNREGULATED BY STATE LAW."  THE
COURT ACCORDINGLY DECIDED THAT THE COMMISSION WAS "WITHOUT AUTHORITY TO
REGULATE THE PRACTICES OF THE RESPONDENT IN SOLICITING INSURANCE."  262
F.2D 241, 244.  JUDGE VOGEL DISSENTED, STATING HIS BELIEF THAT IT WAS
"IMPRACTICAL AND INEFFECTIVE" TO "FORCE THE CITIZENS OF OTHER STATES TO
RELY UPON NEBRASKA'S REGULATION OF THE LONG DISTANCE ADVERTISING
PRACTICES OF THE RESPONDENT IN THE PROMOTION AND SALE BY MAIL OR
OTHERWISE OF INSURANCE OUTSIDE THE STATE OF NEBRASKA."  IT WAS HIS VIEW
THAT NEBRASKA'S REGULATION OF DECEPTIVE PRACTICES "IN ANY OTHER STATE"
IS NOT "THE KIND OF REGULATION BY STATE LAW CONGRESS HAD IN MIND" IN
ENACTING THE MCCARRAN-FERGUSON ACT.  262 F.2D 241, 245.  CERTIORARI WAS
GRANTED, 359 U.S. 988, TO RESOLVE AN IMPORTANT QUESTION LEFT UNDECIDED
IN FEDERAL TRADE COMM'N V. NATIONAL CASUALTY CO., 357 U.S. 560. 

IN THAT CASE THE ISSUE INVOLVED THE EFFECT OF STATE LAWS REGULATING
THE ADVERTISING PRACTICES OF INSURANCE COMPANIES WHICH WERE LICENSED TO
DO BUSINESS WITHIN THE STATES AND WHICH WERE ENGAGED IN ADVERTISING
PROGRAMS REQUIRING DISTRIBUTION OF MATERIAL BY LOCAL AGENTS.  IN THOSE
CIRCUMSTANCES THE COURT FOUND THERE WAS "NO QUESTION BUT THAT THE
STATES POSSESS AMPLE MEANS TO REGULATE THIS ADVERTISING WITHIN THEIR
RESPECTIVE BOUNDARIES."  357 U.S., AT 564.  IT WAS HELD THAT SEC. 2(B)
OF THE MCCARRAN-FERGUSON ACT "WITHDREW FROM THE FEDERAL TRADE
COMMISSION THE AUTHORITY TO REGULATE RESPONDENTS' ADVERTISING PRACTICES
IN THOSE STATES WHICH ARE REGULATING THOSE PRACTICES UNDER THEIR OWN
LAWS."  357 U.S., AT 563.  THE COURT EXPRESSED NO VIEW AS TO "THE
INTENT OF CONGRESS WITH REGARD TO INTERSTATE INSURANCE PRACTICES WHICH
THE STATES CANNOT FOR CONSTITUTIONAL REASONS REGULATE EFFECTIVELY  ...
."  357 U.S., AT 564. 

THE QUESTION HERE IS THUS QUITE DIFFERENT FROM THAT PRESENTED IN
NATIONAL CASUALTY.  IN THIS CASE THE STATE REGULATION RELIED ON TO
DISPLACE THE FEDERAL LAW IS NOT THE PROTECTIVE LEGISLATION OF THE
STATES WHOSE CITIZENS ARE THE TARGETS OF THE ADVERTISING PRACTICES IN
QUESTION.  RATHER, WE ARE ASKED TO HOLD THAT THE MCCARRAN-FERGUSON ACT
OPERATES TO OUST THE COMMISSION OF JURISDICTION BY REASON OF A SINGLE
STATE'S ATTEMPTED REGULATION OF ITS DOMICILIARY'S EXTRATERRITORIAL
ACTIVITIES.  (FN3)  BUT WE CANNOT BELIEVE THAT THIS KIND OF LAW OF A
SINGLE STATE TAKES FROM THE RESIDENTS OF EVERY OTHER STATE THE
PROTECTION OF THE FEDERAL TRADE COMMISSION ACT.  (FN4)  IN OUR OPINION
THE STATE REGULATION WHICH CONGRESS PROVIDED SHOULD OPERATE TO DISPLACE
THIS FEDERAL LAW MEANS REGULATION BY THE STATE IN WHICH THE DECEPTION
IS PRACTICED AND HAS ITS IMPACT. 

THE MCCARRAN-FERGUSON ACT WAS PASSED IN 1945.  ITS BASIC PURPOSE WAS
TO ALLAY DOUBTS, THOUGHT TO HAVE BEEN RAISED BY THIS COURT'S DECISION
OF THE PREVIOUS YEAR IN UNITED STATES V. SOUTH-EASTERN UNDERWRITERS
ASSN., 322 U.S. 533, AS TO THE CONTINUING POWER OF THE STATES TO TAX
AND REGULATE THE BUSINESS OF INSURANCE.  (FN5)  SEE PRUDENTIAL
INSURANCE CO. V. BENJAMIN, 328 U.S. 408, 429-433; MARYLAND CASUALTY CO.
V. CUSHING, 347 U.S. 409, 413; SECURITIES & EXCHANGE COMM'N V. VARIABLE
ANNUITY CO., 359 U.S. 65, 99 (DISSENTING OPINION).  THE ORIGINAL BILLS
AS PASSED BY BOTH THE SENATE AND THE HOUSE WOULD HAVE MADE THE FEDERAL
TRADE COMMISSION ACT COMPLETELY INAPPLICABLE TO THE INSURANCE
BUSINESS.  S. 340, 79TH CONG., 1ST SESS., 91 CONG. REC. 478-488, 1085,
1093-1094.  DURING THE DEBATE IN THE HOUSE, HOWEVER, SEVERAL MEMBERS
OBJECTED TO THE PROVISION EXEMPTING THE BUSINESS OF INSURANCE FROM THIS
FEDERAL STATUTE (91 CONG. REC. 1027-1028, 1086, 1089, 1092-1093), AND
REPRESENTATIVE SUMMERS, CHAIRMAN OF THE HOUSE JUDICIARY COMMITTEE,
STATED THAT IN CONFERENCE HE WOULD SUPPORT AN AMENDMENT WHICH WOULD
MAKE THE FEDERAL TRADE COMMISSION ACT APPLICABLE TO THE SAME EXTENT AS
THE SHERMAN AND CLAYTON ACTS.  91 CONG. REC. 1093.  THUS IT WAS THAT
SEC. 2(B) IN THE FORM FINALLY ENACTED FIRST APPEARED AS A
RECOMMENDATION OF THE CONFERENCE COMMITTEE OF THE TWO HOUSES.  H.R.
CONF. REP. NO. 213, 79TH CONG., 1ST SESS. 

SINCE THE HOUSE ACCEPTED THE CONFERENCE REPORT WITHOUT DEBATE, 91
CONG. REC. 1396, THE ONLY DISCUSSION OF SEC. 2(B) IN ITS PRESENT FORM
OCCURRED IN THE SENATE.  YET, FROM THAT SOMEWHAT LIMITED DEBATE, AS
WELL AS THE EARLIER DEBATE IN BOTH HOUSES AS TO THE EFFECT OF THE
SHERMAN AND CLAYTON ACTS, IT IS CLEAR THAT CONGRESS VIEWED STATE
REGULATION OF INSURANCE SOLELY IN TERMS OF REGULATION BY THE LAW OF THE
STATE WHERE OCCURRED THE ACTIVITY SOUGHT TO BE REGULATED.  THERE WAS NO
INDICATION OF ANY THOUGHT THAT A STATE COULD REGULATE ACTIVITIES
CARRIED ON BEYOND ITS OWN BORDERS. 

THUS THE REPORT ON THE ORIGINAL HOUSE BILL STATED:  "IT IS NOT THE
INTENTION OF CONGRESS IN THE ENACTMENT OF THIS LEGISLATION TO CLOTHE
THE STATES WITH ANY POWER TO REGULATE OR TAX THE BUSINESS OF INSURANCE
BEYOND THAT WHICH THEY HAD BEEN HELD TO POSSESS PRIOR TO THE DECISION
OF THE UNITED STATES SUPREME COURT IN THE SOUTHEASTERN UNDERWRITERS
ASSOCIATION CASE.  BRIEFLY, YOUR COMMITTEE IS OF THE OPINION THAT WE
SHOULD PROVIDE FOR THE CONTINUED REGULATION AND TAXATION OF INSURANCE
BY THE STATES, SUBJECT ALWAYS, HOWEVER, TO THE LIMITATIONS SET OUT IN
THE CONTROLLING DECISIONS OF THE UNITED STATES SUPREME COURT, AS, FOR
INSTANCE, IN ALLGEYER V. LOUISIANA (165 U.S. 578), ST. LOUIS COTTON
COMPRESS CO. V. ARKANSAS (260 U.S. 346), AND CONNECTICUT GENERAL
INSURANCE CO. V. JOHNSON (303 U.S. 77), WHICH HOLD, INTER ALIA, THAT A
STATE DOES NOT HAVE POWER TO TAX CONTRACTS OF INSURANCE OR REINSURANCE
ENTERED INTO OUTSIDE ITS JURISDICTION BY INDIVIDUALS OR CORPORATIONS
RESIDENT OR DOMICILED THEREIN COVERING RISKS WITHIN THE STATE OR TO
REGULATE SUCH TRANSACTIONS IN ANY WAY."  (H.R. REP. NO. 143, 79TH
CONG., 1ST SESS. 3.) 

SIGNIFICANTLY, WHEN SENATOR MCCARRAN PRESENTED TO THE SENATE THE BILL
AGREED TO IN CONFERENCE, HE BEGAN BY READING MOST OF THE FOREGOING
QUOTATION FROM THE ORIGINAL HOUSE REPORT AS PART OF HIS EXPLANATION OF
THE BILL.  91 CONG. REC. 1442.  THE ENSUING SENATE DEBATE CENTERED
AROUND SEC. 2(B).  THE THREE SENATE CONFEREES, SENATORS MCCARRAN,
O'MAHONEY, AND FERGUSON, REPEATEDLY EMPHASIZED THAT THE PROVISION DID
NOT AUTHORIZE STATE REGULATION OF EXTRATERRITORIAL ACTIVITIES.  SEE,
E.G., 91 CONG. REC. 1481, 1483, 1484.  TYPICAL IS THE FOLLOWING
STATEMENT BY SENATOR O'MAHONEY:  "WHEN THE MORATORIUM PERIOD PASSES,
THE SHERMAN ACT, THE CLAYTON ACT AND THE FEDERAL TRADE COMMISSION ACT
COME TO LIFE AGAIN IN THE FIELD OF INTERSTATE COMMERCE, AND IN THE
FIELD OF INTERSTATE REGULATION.  NOTHING IN THE PROPOSED LAW WOULD
AUTHORIZE A STATE TO TRY TO REGULATE FOR OTHER STATES, OR AUTHORIZE ANY
PRIVATE GROUP OR ASSOCIATION TO REGULATE IN THE FIELD OF INTERSTATE
COMMERCE."  91 CONG. REC. 1483. 

NOT ONLY THIS SPECIFIC LEGISLATIVE HISTORY, BUT ALSO A BASIC
MOTIVATING POLICY BEHIND THE LEGISLATIVE MOVEMENT THAT CULMINATED IN
THE ENACTMENT OF THE MCCARRAN-FERGUSON ACT SERVE TO CONFIRM THE
CONCLUSION THAT WHEN CONGRESS PROVIDED THAT THE FEDERAL TRADE
COMMISSION ACT WOULD BE DISPLACED TO THE EXTENT THAT THE INSURANCE
BUSINESS WAS "REGULATED" BY STATE LAW, IT REFERRED ONLY TO REGULATION
BY THE STATE WHERE THE BUSINESS ACTIVITIES HAVE THEIR OPERATIVE FORCE. 
ONE OF THE MAJOR ARGUMENTS ADVANCED BY PROPONENTS OF LEAVING REGULATION
TO THE STATES WAS THAT THE STATES WERE IN CLOSE PROXIMITY TO THE PEOPLE
AFFECTED BY THE INSURANCE BUSINESS AND, THEREFORE, WERE IN A BETTER
POSITION TO REGULATE THAT BUSINESS THAN THE FEDERAL GOVERNMENT.  SEE,
E.G., 91 CONG. REC. 1087; 90 CONG. REC. 6532.  JOINT HEARINGS BEFORE
THE SUBCOMMITTEES OF THE COMMITTEES ON THE JUDICIARY ON S. 1362, H.R.
3269, H.R. 3270, 78TH CONG., 1ST SESS. 17, 37, 117, 238-239, 242-243,
244, 252.  SUCH A PURPOSE WOULD HARDLY BE SERVED BY DELEGATING TO ANY
ONE STATE SOLE LEGISLATIVE AND ADMINISTRATIVE CONTROL OF THE PRACTICES
OF AN INSURANCE BUSINESS AFFECTING THE RESIDENTS OF EVERY OTHER STATE
IN THE UNION.  THIS COURT HAS REFERRED BEFORE TO THE "UNWISDOM,
UNFAIRNESS AND INJUSTICE OF PERMITTING POLICYHOLDERS TO SEEK REDRESS
ONLY IN SOME DISTANT STATE WHERE THE INSURER IS INCORPORATED." 
TRAVELERS HEALTH ASSN. V. VIRGINIA, 339 U.S. 643, 649. 

BECAUSE OF OUR VIEW AS TO THE MEANING OF SEC. 2(B) OF THE MCCARRAN
FERGUSON ACT, WE DO NOT NEED TO CONSIDER THE CONSTITUTIONAL QUESTIONS
THAT MIGHT ARISE AS TO THE APPLICABILITY OF THE NEBRASKA STATUTE TO
MISREPRESENTATIONS MADE TO RESIDENTS OF OTHER STATES.  COMPARE ALASKA
PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMMISSION, 294 U.S. 532; WESTERN
UNION TELEGRAPH CO. V. BROWN, 234 U.S. 542; SLIGH V. KIRKWOOD, 237 U.S.
52.  SUFFICE IT TO NOTE THAT THE IMPEDIMENTS, CONTINGENCIES, AND DOUBTS
WHICH CONSTITUTIONAL LIMITATIONS MIGHT CREATE AS TO NEBRASKA'S POWER TO
REGULATE ANY GIVEN ASPECT OF EXTRATERRITORIAL ACTIVITY SERVE ONLY TO
CONFIRM THE READING WE HAVE GIVEN TO SEC. 2(B) OF THE ACT. 

IT FOLLOWS THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE VACATED,
AND THE CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THE VIEWS EXPRESSED IN THIS OPINION.  VACATED AND REMANDED. 

FN1  THE HERE PERTINENT PORTIONS OF THE MCCARRAN-FERGUSON ACT ARE AS
FOLLOWS:  "THAT THE CONGRESS HEREBY DECLARES THAT THE CONTINUED
REGULATION AND TAXATION BY THE SEVERAL STATES OF THE BUSINESS OF
INSURANCE IS IN THE PUBLIC INTEREST, AND THAT SILENCE ON THE PART OF
THE CONGRESS SHALL NOT BE CONSTRUED TO IMPOSE ANY BARRIER TO THE
REGULATION OR TAXATION OF SUCH BUSINESS BY THE SEVERAL STATES. 

"SEC. 2.  (A)  THE BUSINESS OF INSURANCE, AND EVERY PERSON ENGAGED
THEREIN, SHALL BE SUBJECT TO THE LAWS OF THE SEVERAL STATES WHICH
RELATE TO THE REGULATION OR TAXATION OF SUCH BUSINESS. 

"(B)  NO ACT OF CONGRESS SHALL BE CONSTRUED TO INVALIDATE, IMPAIR, OR
SUPERSEDE ANY LAW ENACTED BY ANY STATE FOR THE PURPOSE OF REGULATING
THE BUSINESS OF INSURANCE, OR WHICH IMPOSES A FEE OR TAX UPON SUCH
BUSINESS, UNLESS SUCH ACT SPECIFICALLY RELATES TO THE BUSINESS OF
INSURANCE:  PROVIDED, THAT AFTER JUNE 30, 1948,  ...  THE SHERMAN ACT,
...  THE CLAYTON ACT, AND  ...  THE FEDERAL TRADE COMMISSION ACT,  ...
SHALL BE APPLICABLE TO THE BUSINESS OF INSURANCE TO THE EXTENT THAT
SUCH BUSINESS IS NOT REGULATED BY STATE LAW  ...  ."  59 STAT. 33, AS
AMENDED, 61 STAT. 448. 

FN2  SECTION 44-1503 OF REISSUE REVISED STATUTES OF NEBRASKA, 1943,
AS AMENDED BY THE EMERGENCY ACT OF MAY 14, 1957, LAWS OF NEBRASKA,
1957, C. 191, SEC. 2.  THIS PROVISION IS PART OF THE NEBRASKA "UNFAIR
COMPETITION AND TRADE PRACTICES" ACT OF 1947, AS AMENDED.  (SECS. 44
1501 TO 44-1521, REISSUE REVISED STATUTES OF NEBRASKA, 1943, 1957
CUMULATIVE SUPPLEMENT, LAWS OF NEBRASKA, 1957, C. 191.)  OTHER
PROVISIONS OF THE ACT EMPOWER THE DIRECTOR OF INSURANCE (1) TO PREFER
CHARGES AGAINST ANY SUCH INSURER IF HE HAS REASON TO BELIEVE THAT IT
HAS, IN NEBRASKA OR ELSEWHERE, ENGAGED "IN ANY UNFAIR OR DECEPTIVE ACT
OR PRACTICE IN THE CONDUCT OF SUCH BUSINESS," AND TO GIVE THE INSURER
NOTICE OF A HEARING ON THE CHARGES (SEC. 44-1506); (2) TO TAKE EVIDENCE
AT THE HEARING (SEC. 44-1507); AND (3) TO ISSUE A CEASE-AND-DESIST
ORDER IF HE DETERMINES THAT THE INSURER HAS ENGAGED IN THE WRONGFUL
ACTS AND PRACTICES WITH WHICH IT IS CHARGED (SEC. 44-1509).    FN3
THIS BASIC DIFFERENCE WAS EFFECTIVELY EMPHASIZED IN COMMISSIONER
GWYNNE'S SEPARATE OPINION CONCURRING IN THE COMMISSION'S ACTION IN THE
PRESENT PROCEEDING.  HE POINTED OUT THAT HE HAD DISSENTED FROM THE
COMMISSION'S ASSUMPTION OF JURISDICTION IN THE AMERICAN HOSPITAL
PROCEEDING, WHERE THE "INSURANCE COMPANY OPERATED EXCLUSIVELY THROUGH
AGENTS IN VARIOUS STATES, IN WHICH IT WAS DULY LICENSED UNDER THE
RESPECTIVE STATE LAWS," WHERE "EVERY SUCH STATE HAD ADOPTED THE MODEL
CODE, OR EQUIVALENT LEGISLATION," AND WHERE THE "ADVERTISING PRACTICE
COMPLAINED OF INVOLVED BUNDLES OF ADVERTISING MATTER MAILED FROM THE
HOME OFFICE TO THE COMPANY'S AGENTS IN THE SEVERAL STATES AND
DISSEMINATED THERE BY SUCH AGENTS."  53 F.T.C. 548, 558-559. 
(COMMISSIONER GWYNNE'S VIEW AS TO THE COMMISSION'S LACK OF JURISDICTION
IN THE AMERICAN HOSPITAL PROCEEDING WAS ULTIMATELY UPHELD HERE IN
FEDERAL TRADE COMM'N V. NATIONAL CASUALTY CO., 357 U.S. 560, WHICH
DISPOSED OF BOTH THE ORDER AGAINST NATIONAL CASUALTY COMPANY AND THE
ORDER AGAINST AMERICAN HOSPITAL & LIFE INSURANCE COMPANY.)   IN THE
PRESENT CASE, BY CONTRAST, COMMISSIONER GWYNNE POINTED OUT THAT THE
RESPONDENT WAS MAKING REPRESENTATIONS TO INDUCE SALES OF INSURANCE IN
STATES WHERE IT WAS NOT LICENSED AND HAD NO AGENTS.  HE CONCLUDED THAT
"THIS TYPE OF LAW (THAT IS, A LAW PURPORTING TO PROTECT THE PEOPLE OF
ANOTHER STATE FROM DECEPTIVE ADVERTISING) CAN HARDLY BE SAID TO BE THE
TYPE OF LAW REFERRED TO IN SECTION 2(B) OF THE MCCARRAN ACT.  SECTION
2(B) MAKES THE FEDERAL TRADE COMMISSION ACT APPLICABLE TO THE BUSINESS
OF INSURANCE TO THE EXTENT THAT SUCH BUSINESS IS NOT REGULATED BY STATE
LAW.  I THINK THIS REFERS TO THE LAWS OF THE STATE WHOSE CITIZENS ARE
BEING AFFECTED BY THE ADVERTISING AND NOT TO LAWS OF SOME OTHER STATE
OPERATING EXTRATERRITORIALLY."  53 F.T.C. 548, 563.  COMMISSIONER
GWYNNE, AS A MEMBER OF CONGRESS, PARTICIPATED IN THE DEBATES LEADING TO
THE PASSAGE OF THE MCCARRAN-FERGUSON ACT, 91 CONG. REC. 1089, 1090. 
SEE ALSO 90 CONG. REC. 6534-6536. 

FN4  THE RESPONDENT HAS ARGUED IN THIS COURT THAT THE FEDERAL TRADE
COMMISSION LACKED JURISDICTION BECAUSE THE RESPONDET'S ADVERTISING
PRACTICES ARE REGULATED NOT ONLY BY NEBRASKA, BUT ALSO BY "ALL OTHER
STATES" IN WHICH THE RESPONDENT CONDUCTS ITS MAIL ORDER BUSINESS.  TO
THIS THE PETITIONER REPLIES THAT (1) THE RESPONDENT DID NOT RAISE THIS
ARGUMENT BEFORE THE COMMISSION AND, THEREFORE, HAS WAIVED IT; (2) THE
STATUTES OF THE "OTHER" STATES DO NOT PURPORT TO APPLY TO
MISREPRESENTATIONS MAILED TO THEIR RESIDENTS BY UNLICENSED, NONRESIDENT
INSURANCE COMPANIES HAVING NO LOCAL AGENTS; AND (3) EVEN IF THESE STATE
STATUTES PURPORTED TO BE APPLICABLE TO MISREPRESENTATIONS BY SUCH
INSURERS, THERE STILL WOULD NOT BE REGULATION BY STATE LAW WITHIN THE
MEANING OF THE SEC. 2(B) PROVISO BECAUSE THE STATUTES COULD NOT BE
EFFECTIVELY ENFORCED AGAINST THE RESPONDENT.  THE COURT OF APPEALS GAVE
NO CONSIDERATION TO THE EFFECT OF "REGULATION" BY ANY STATE OTHER THAN
NEBRASKA.  IN ACCORD WITH ACCEPTED PRINCIPLES, WE DECLINE TO CONSIDER
THESE ISSUES ON THE PRESENT RECORD, LEAVING THEM "TO BE CONSIDERED FOR
WHAT THEY ARE WORTH BY THE COURT BELOW, IF DULY PRESENTED AND RELIED
UPON ...  ."  MARCONI WIRELESS CO. V. SIMON, 246 U.S. 46, 57.  SEE
TUNSTALL V. BROTHERHOOD, 323 U.S. 210, 214; UNITED STATES V. BEACH, 324
U.S. 193, 196; FEDERAL COMMUNICATIONS COMM'N V. WJR, 337 U.S. 265,
285. 

FN5  WHILE THE APPEAL IN SOUTH-EASTERN UNDERWRITERS WAS PENDING HERE,
THERE HAD BEEN ABORTIVE ATTEMPTS IN THE SEVENTY-EIGHTH CONGRESS TO
IMMUNIZE THE BUSINESS OF INSURANCE FROM THE FEDERAL ANTITRUST LAWS. 
SEE H.R. 3270, S. 1362, 78TH CONG., 1ST SESS.; H.R. REP. NO. 873, 78TH
CONG., 1ST SESS.; 89 CONG. REC. 7686, 10532, 10659-10664. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

THIS CASE MARKS THE SECOND TIME WITHIN A YEAR THAT THE COURT HAS MADE
INROADS UPON THE POLICY OF THE MCCARRAN-FERGUSON ACT BY WHICH CONGRESS
PERVASIVELY RESTORED TO THE STATES THE REGULATION OF THE BUSINESS OF
INSURANCE, A FUNCTION WHICH UNTIL THIS COURT'S DECISION IN UNITED
STATES V. SOUTH-EASTERN UNDERWRITERS ASSOCIATION, 322 U.S. 533,
TRADITIONALLY HAD BEEN CONSIDERED TO BE EXCLUSIVELY THEIRS.  LAST TERM
THE COURT HELD VARIABLE ANNUITY POLICIES, SOLD ACROSS STATE LINES,
SUBJECT TO REGULATION BY THE SECURITIES AND EXCHANGE COMMISSION.  SEE
SECURITIES & EXCHANGE COMM'N V. VARIABLE ANNUITY CO., 359 U.S. 65, 93
101 (DISSENTING OPINION).  TODAY IT HOLDS THAT ADVERTISING MATERIALS
MAILED INTO OTHER STATES BY A HEALTH INSURANCE COMPANY, ALREADY
REGULATED UNDER THE LAWS OF ITS OWN STATE WITH RESPECT TO THE OUT-OF
STATE TRANSMISSION OF SUCH MATERIALS, ARE SUBJECT ALSO TO REGULATION BY
THE FEDERAL TRADE COMMISSION, AT LEAST TO THE EXTENT THAT SUCH
ADVERTISING MATTER IS UNREGULATED BY THE LAWS OF THE STATE INTO WHICH
IT IS SENT. 

THE COURT'S HOLDING IS BASED UPON ITS CONCLUSION "THAT WHEN CONGRESS
PROVIDED IN SEC. 2(B) OF THE MCCARRAN-FERGUSON ACT THAT THE FEDERAL
TRADE COMMISSION ACT WOULD BE DISPLACED TO THE EXTENT THAT THE
INSURANCE BUSINESS WAS 'REGULATED' BY STATE LAW, IT REFERRED ONLY TO
REGULATION BY THE STATE WHERE THE BUSINESS ACTIVITIES HAVE THEIR
OPERATIVE FORCE."  I THINK THE DATA ON WHICH THE COURT RELIES IS MUCH
TOO MEAGRE TO JUSTIFY THIS CONCLUSION, AND BELIEVE, AS THE COURT OF
APPEALS DID, THAT NEBRASKA'S REGULATION OF THESE ACTIVITIES OF THE
RESPONDENT FORECLOSED FEDERAL TRADE COMMISSION JURISDICTION. 

WHAT IS REFERRED TO IN THE MAJORITY OPINION AS "SPECIFIC LEGISLATIVE
HISTORY" ON THE ISSUE BEFORE US SEEMS TO ME TO FALL FAR SHORT OF BEING
PERSUASIVE TOWARDS THE COURT'S VIEW OF THE STATUTE.  THE REPORT ON THE
ORIGINAL HOUSE BILL, ON WHICH SO MUCH STORE IS PLACED, WAS DIRECTED, AS
I READ IT, NOT TO DIFFERENTIATING BETWEEN THE KINDS OF STATE INSURANCE
REGULATION WHICH WOULD, AFTER THE MORATORIUM PERIOD PROVIDED IN THE
STATUTE HAD ENDED, (FN1) EXEMPT FROM FEDERAL REGULATION AND CONTROL THE
BUSINESS OF INSURANCE IN ALL BUT LIMITED ASPECTS, (FN2) BUT TO THE
GENERAL PROPOSITION THAT THE NEW STATUTE WOULD NOT ENLARGE OR NARROW
STATE REGULATORY POWER AS IT HAD EXISTED BEFORE THIS COURT'S DECISION
IN THE SOUTH-EASTERN UNDERWRITERS CASE, SUPRA.  THAT NO MORE THAN THIS
CAN BE GOT OUT OF THE REPORT ON THE ORIGINAL HOUSE BILL IS MADE
MANIFEST BY SENATOR MCCARRAN'S EXPLANATION OF THE CONFERENCE BILL WHEN
HE PRESENTED IT TO THE SENATE - AN EPISODE TO WHICH THE COURT REFERS. 
QUOTING FROM THE REPORT, THE SENATOR SAID:  "THAT EXPRESSION (MEANING
THE REPORT) SHOULD BE MADE A PART OF THIS EXPLANATION.  IN OTHER WORDS,
WE GIVE TO THE STATES NO MORE POWERS THAN THOSE THEY PREVIOUSLY HAD,
AND WE TAKE NONE FROM THEM."  (FN3)  91 CONG. REC.  1442. 

I BELIEVE THAT THE FRAGMENTS FROM THE ENSUING SENATE DEBATE, ON WHICH
THE COURT FURTHER RELIES, INDICATE NO MORE THAN DOES THE REPORT.  (FN4)
THE SAME IS TRUE, IN MY OPINION, OF EXPRESSIONS MADE DURING THE DEBATE
RELATING TO THE DESIRABILITY OF LEAVING INSURANCE REGULATION TO LOCAL
AUTHORITIES BECAUSE THEY WERE, SO TO SPEAK, ON THE GROUND, EXPRESSIONS
WHICH, THE COURT CORRECTLY OBSERVES, REFLECTED "A BASIC MOTIVATING
POLICY BEHIND THE LEGISLATIVE MOVEMENT THAT CULMINATED IN THE ENACTMENT
OF THE MCCARRAN-FERGUSON ACT."  AND SINCE THE COURT VERY GINGERLY
THROWS OUT POSSIBLE CONSTITUTIONAL QUESTIONS, I THINK IT APPROPRIATE TO
SAY THAT THE RIGHT OF NEBRASKA TO POLICE ITS OWN INSURANCE COMPANY
DOMICILIARIES, WITH RESPECT TO THEIR ADVERTISING SENT FROM NEBRASKA
INTO OTHER STATES, IS NOT SERIOUSLY OPEN TO CONSTITUTIONAL DOUBT.  SEE
HAMMOND PACKING CO. V. ARKANSAS, 212 U.S. 322; SLIGH V. KIRKWOOD, 237
U.S. 52.  THERE IS CERTAINLY NOTHING IN ALASKA PACKERS ASSN. V.
COMMISSION, 294 U.S. 532, WHICH POINTS TO THE CONTRARY. 

THE TEMPTATION IS STRONG, NO DOUBT, TO ASK THE COURT TO INNOVATE WITH
RESPECT TO THE MCCARRAN-FERGUSON ACT WHEN STATE REGULATION MAY BE
THOUGHT TO HAVE FALLEN SHORT.  TWO YEARS AGO WE DECLINED TO DO SO WHEN
INVITED BY THE FEDERAL TRADE COMMISSION IN THE NATIONAL CASUALTY CASE,
SUPRA, AT 564-565.  I THINK IT UNWISE FOR US NOW TO YIELD TO THIS
ENCORE ON THE PART OF THE COMMISSION.  ONE INNOVATION WITH THE ACT IS
APT TO LEAD TO ANOTHER, AND MAY ULTIMATELY RESULT IN A HYBRID SCHEME OF
INSURANCE REGULATION, BRINGING ABOUT UNCERTAINTIES AND POSSIBLE
DUPLICATIONS WHICH SHOULD BE AVOIDED. 

"OBVIOUSLY CONGRESS' PURPOSE WAS BROADLY TO GIVE SUPPORT TO THE
EXISTING AND FUTURE STATE SYSTEMS FOR REGULATING AND TAXING THE
BUSINESS OF INSURANCE.  THIS WAS DONE IN TWO WAYS.  ONE WAS BY REMOVING
OBSTRUCTIONS WHICH MIGHT BE THOUGHT TO FLOW FROM ITS OWN POWER, WHETHER
DORMANT OR EXERCISED, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE ACT
ITSELF OR IN FUTURE LEGISLATION.  THE OTHER WAS BY DECLARING EXPRESSLY
AND AFFIRMATIVELY THAT CONTINUED STATE REGULATION AND TAXATION OF THIS
BUSINESS IS IN THE PUBLIC INTEREST AND THAT THE BUSINESS AND ALL WHO
ENGAGE IN IT 'SHALL BE SUBJECT TO' THE LAWS OF THE SEVERAL STATES IN
THESE RESPECTS. 

"MOREOVER, IN TAKING THIS ACTION CONGRESS MUST HAVE HAD FULL
KNOWLEDGE OF THE NATION-WIDE EXISTENCE OF STATE SYSTEMS OF REGULATION
AND TAXATION; OF THE FACT THAT THEY DIFFER GREATLY IN THE SCOPE AND
CHARACTER OF THE REGULATIONS IMPOSED AND OF THE TAXES EXACTED; AND OF
THE FURTHER FACT THAT MANY, IF NOT ALL, INCLUDE FEATURES WHICH, TO SOME
EXTENT, HAVE NOT BEEN APPLIED GENERALLY TO OTHER INTERSTATE BUSINESS. 
CONGRESS COULD NOT HAVE BEEN UNACQUAINTED WITH THESE FACTS AND ITS
PURPOSE WAS EVIDENTLY TO THROW THE WHOLE WEIGHT OF ITS POWER BEHIND THE
STATE SYSTEMS, NOTWITHSTANDING THESE VARIATIONS."  PRUDENTIAL INS. CO.
V. BENJAMIN, 328 U.S. 408, 429-430. 

SEE ALSO WILBURN BOAT CO. V. FIREMAN'S INS. CO., 348 U.S. 310, 318
321; SECURITIES & EXCHANGE COMM'N V. VARIABLE ANNUITY CO., SUPRA, AT 68
69, AND DISSENTING OPINION AT 93 ET SEQ. 

IF INNOVATIONS IN THE POLICY OF THE MCCARRAN-FERGUSON ACT ARE THOUGHT
DESIRABLE, THEY SHOULD BE MADE BY CONGRESS, NOT BY US. 

I WOULD AFFIRM. 

FN1  IN ADDITION TO SEC. 2(B) SET FORTH IN NOTE 1 OF THE COURT'S
OPINION, ANTE, P. 295, SEC. 3(A) OF THE ACT PROVIDES:  "UNTIL JUNE 30,
1948, THE ACT OF JULY 2, 1890, AS AMENDED, KNOWN AS THE SHERMAN ACT,
AND THE ACT OF OCTOBER 15, 1914, AS AMENDED, KNOWN AS THE CLAYTON ACT,
AND THE ACT OF SEPTEMBER 26, 1914, KNOWN AS THE FEDERAL TRADE
COMMISSION ACT, AS AMENDED, AND THE ACT OF JUNE 19, 1936, KNOWN AS THE
ROBINSON-PATMAN ANTIDISCRIMINATION ACT, SHALL NOT APPLY TO THE BUSINESS
OF INSURANCE OR TO ACTS IN THE CONDUCT THEREOF." 

FN2  SECTION 3(B) OF THE ACT PROVIDES:  "NOTHING CONTAINED IN THIS
ACT SHALL RENDER THE SAID SHERMAN ACT INAPPLICABLE TO ANY AGREEMENT TO
BOYCOTT, COERCE, OR INTIMIDATE, OR ACT OF BOYCOTT, COERCION, OR
INTIMIDATION." 

FN3  SENATOR MCCARRAN'S READING OF THE REPORT ON THE ORIGINAL HOUSE
BILL STOPPED SHORT OF THE LAST CLAUSE (FOLLOWING THE CITATION OF CASES)
QUOTED IN THE COURT'S OPINION.  ANTE.  P. 301. 

FN4  IT IS WORTH OBSERVING THAT ONE OF THE HYPOTHETICAL QUESTIONS PUT
TO SENATOR FERGUSON BY SENATOR PEPPER OF FLORIDA, AN OPPONENT OF THE
BILL, RELATED TO WHETHER THE BILL WOULD PERMIT FLORIDA, IN DISREGARD OF
THE FEDERAL ANTITRUST LAWS, TO AUTHORIZE THE SALE IN FLORIDA OF
INSURANCE AT RATES FIXED BY AN OUT-OF-STATE INSURANCE RATING BUREAU,
AND THAT SENATOR FERGUSON REPLIED IN THE AFFIRMATIVE.  91 CONG. REC.
1481.  YET THE COURT NOW FINDS IT OFFENSIVE TO THE CONCEPT OF THE
STATUTE TO CONSIDER THAT OTHER STATES MAY BE CONTENT TO RELY ON
NEBRASKA'S REGULATION OF ADVERTISING MATERIAL MAILED TO THEIR CITIZENS
BY NEBRASKA INSURANCE COMPANIES.  THE COURT RESERVES "FOR WHAT THEY ARE
WORTH" THE QUESTIONS THAT WOULD ARISE WERE SUCH OTHER STATES TO
LEGISLATE AGAINST THE OUT-OF-STATE MAILING OF INSURANCE ADVERTISING
INTO THEIR JURISDICTIONS.  YET EVEN IF SUCH LEGISLATION PROVED ABORTIVE
AS A PRACTICAL MATTER, BECAUSE OF A FOREIGN INSURANCE COMPANY HAVING NO
OFFICE, AGENTS, OR ASSETS WITHIN THE STATE SO LEGISLATING, SUCH
LEGISLATION WOULD NONETHELESS PRESUMABLY EXCLUDE FEDERAL TRADE
COMMISSION JURISDICTION, UNLESS WE WERE TO DEPART FROM OUR HOLDING IN
FEDERAL TRADE COMM'N V. NATIONAL CASUALTY CO., 357 U.S. 560, TO THE
EFFECT THAT IT IS THE EXISTENCE OF STATE REGULATORY LEGISLATION, AND
NOT THE EFFECTIVENESS OF SUCH REGULATION, THAT IS THE CONTROLLING
FACTOR.  THE DISTINCTION BETWEEN SUCH A CASE AS THAT, AND THE ONE
BEFORE US, SEEMS TO ME TO BE ONE WITHOUT A DIFFERENCE. 
..END :
















TILGHMAN V. CULVER 362 U.S. 308 


NO. 135, MISC.  DECIDED MARCH 28, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED.  - REPORTED BELOW:  - SO. 2D. 


TILGHMAN V. CULVER, PRISON CUSTODIAN. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF HABEAS CORPUS IS
DENIED.  TREATING THE PAPERS SUBMITTED AS A PETITION FOR WRIT OF
CERTIORARI, CERTIORARI IS GRANTED.  IN VIEW OF THE REPRESENTATIONS OF
THE ATTORNEY GENERAL OF FLORIDA THAT THE CAUSE HAS BECOME MOOT, THE
JUDGMENT OF THE SUPREME COURT OF FLORIDA IS VACATED AND THE CAUSE IS
REMANDED FOR SUCH FURTHER PROCEEDINGS AS THAT COURT MAY DEEM
APPROPRIATE.  SEE N.A.A.C.P. V. COMMITTEE ON OFFENSES AGAINST THE
ADMINISTRATION OF JUSTICE, 358 U.S. 40. 
..END :










MCGANN V. UNITED STATES 362 U.S. 309 


NO. 488, MISC.  DECIDED MARCH 28, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


MCGANN V. UNITED STATES. 

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  UPON THE SUGGESTION OF THE
SOLICITOR GENERAL THAT INASMUCH AS THE PETITIONER HAD BEEN GRANTED
LEAVE TO PROCEED IN FORMA PAUPERIS BY THE DISTRICT COURT, THE
APPLICATION TO THE COURT OF APPEALS WAS UNNECESSARY, THE JUDGMENT OF
THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THAT COURT
FOR FURTHER PROCEEDINGS. 
..END :











THOMPSON V. CITY OF LOUISVILLE 362 U.S. 199 


NO. 59.  ARGUED JANUARY 11-12, 1960 - DECIDED MARCH 21, 1960 -
REVERSED. 


ON THE RECORD IN THIS CASE, PETITIONER'S CONVICTION IN A CITY POLICE
COURT FOR THE TWO OFFENSES OF "LOITERING" AND "DISORDERLY CONDUCT" WAS
SO TOTALLY DEVOID OF EVIDENTIARY SUPPORT AS TO BE INVALID UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 199-206. 

THOMPSON V. CITY OF LOUISVILLE ET AL. 

CERTIORARI TO THE POLICE COURT OF LOUISVILLE, KENTUCKY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS FOUND GUILTY IN THE POLICE COURT OF LOUISVILLE,
KENTUCKY, OF TWO OFFENSES - LOITERING AND DISORDERLY CONDUCT.  THE
ULTIMATE QUESTION PRESENTED TO US IS WHETHER THE CHARGES AGAINST
PETITIONER WERE SO TOTALLY DEVOID OF EVIDENTIARY SUPPORT AS TO RENDER
HIS CONVICTION UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  DECISION OF THIS QUESTION TURNS NOT ON THE
SUFFICIENCY OF THE EVIDENCE, BUT ON WHETHER THIS CONVICTION RESTS UPON
ANY EVIDENCE AT ALL. 

THE FACTS AS SHOWN BY THE RECORD ARE SHORT AND SIMPLE.  PETITIONER, A
LONG-TIME RESIDENT OF THE LOUISVILLE AREA, WENT INTO THE LIBERTY END
CAFE ABOUT 6:20 ON SATURDAY EVENING, JANUARY 24, 1959.  IN ADDITION TO
SELLING FOOD THE CAFE WAS LICENSED TO SELL BEER TO THE PUBLIC AND SOME
12 TO 30 PATRONS WERE PRESENT DURING THE TIME PETITIONER WAS THERE. 
WHEN PETITIONER HAD BEEN IN THE CAFE ABOUT HALF AN HOUR, TWO LOUISVILLE
POLICE OFFICERS CAME IN ON A "ROUTINE CHECK."  UPON SEEING PETITIONER
"OUT THERE ON THE FLOOR DANCING BY HIMSELF," ONE OF THE OFFICERS,
ACCORDING TO HIS TESTIMONY, WENT UP TO THE MANAGER WHO WAS SITTING ON A
STOOL NEARBY AND ASKED HIM HOW LONG PETITIONER HAD BEEN IN THERE AND IF
HE HAD BOUGHT ANYTHING.  THE OFFICER TESTIFIED THAT UPON BEING TOLD BY
THE MANAGER THAT PETITIONER HAD BEEN THERE "A LITTLE OVER A HALF-HOUR
AND THAT HE HAD NOT BOUGHT ANYTHING," HE ACCOSTED THOMPSON AND "ASKED
HIM WHAT WAS HIS REASON FOR BEING IN THERE AND HE SAID HE WAS WAITING
ON A BUS."  THE OFFICER THEN INFORMED PETITIONER THAT HE WAS UNDER
ARREST AND TOOK HIM OUTSIDE.  THIS WAS THE ARREST FOR LOITERING.  AFTER
GOING OUTSIDE, THE OFFICER TESTIFIED, PETITIONER "WAS VERY
ARGUMENTATIVE - HE ARGUED WITH US BACK AND FORTH AND THEN WE PLACED A
DISORDERLY CONDUCT CHARGE ON HIM."  ADMITTEDLY THE DISORDERLY CONDUCT
CONVICTION RESTS SOLELY ON THIS ONE SENTENCE DESCRIPTION OF
PETITIONER'S CONDUCT AFTER HE LEFT THE CAFE. 

THE FOREGOING EVIDENCE INCLUDES ALL THAT THE CITY OFFERED AGAINST
HIM, EXCEPT A RECORD PURPORTEDLY SHOWING A TOTAL OF 54 PREVIOUS ARRESTS
OF PETITIONER.  BEFORE PUTTING ON HIS DEFENSE, PETITIONER MOVED FOR A
DISMISSAL OF THE CHARGES AGAINST HIM ON THE GROUND THAT A JUDGMENT OF
CONVICTION ON THIS RECORD WOULD DEPRIVE HIM OF PROPERTY AND LIBERTY
(FN1) WITHOUT DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT IN THAT
(1) THERE WAS NO EVIDENCE TO SUPPORT FINDINGS OF GUILT AND (2) THE TWO
ARRESTS AND PROSECUTIONS WERE REPRISALS AGAINST HIM BECAUSE PETITIONER
HAD EMPLOYED COUNSEL AND DEMANDED A JUDICIAL HEARING TO DEFEND HIMSELF
AGAINST PRIOR AND ALLEGEDLY BASELESS CHARGES BY THE POLICE.  (FN2)
THIS MOTION WAS DENIED. 

PETITIONER THEN PUT IN EVIDENCE ON HIS OWN BEHALF, NONE OF WHICH IN
ANY WAY STRENGTHENED THE CITY'S CASE.  HE TESTIFIED THAT HE BOUGHT, AND
ONE OF THE CAFE EMPLOYEES SERVED HIM, A DISH OF MACARONI AND A GLASS OF
BEER AND THAT HE REMAINED IN THE CAFE WAITING FOR A BUS TO GO HOME. 
(FN3) FURTHER EVIDENCE SHOWED WITHOUT DISPUTE THAT AT THE TIME OF HIS
ARREST PETITIONER GAVE THE OFFICERS HIS HOME ADDRESS; THAT HE HAD MONEY
WITH HIM, AND A BUS SCHEDULE SHOWING THAT A BUS TO HIS HOME WOULD STOP
WITHIN HALF A BLOCK OF THE CAFE AT ABOUT 7:30; THAT HE OWNED TWO
UNIMPROVED LOTS OF LAND; THAT IN ADDITION TO WORK HE HAD DONE FOR
OTHERS, HE HAD REGULARLY WORKED ONE DAY OR MORE A WEEK FOR THE SAME
FAMILY FOR 30 YEARS; THAT HE PAID NO RENT IN THE HOME WHERE HE LIVED
AND THAT HIS MEAGER INCOME WAS SUFFICIENT TO MEET HIS NEEDS.  THE CAFE
MANAGER TESTIFIED THAT PETITIONER HAD FREQUENTLY PATRONIZED THE CAFE,
AND THAT HE HAD NEVER TOLD PETITIONER THAT HE WAS UNWELCOME THERE.  THE
MANAGER FURTHER TESTIFIED THAT ON THIS VERY OCCASION HE SAW PETITIONER
"STANDING THERE IN THE MIDDLE OF THE FLOOR AND PATTING HIS FOOT," AND
THAT HE DID NOT AT ANY TIME DURING PETITIONER'S STAY THERE OBJECT TO
ANYTHING HE WAS DOING.  THERE IS NO EVIDENCE THAT ANYONE ELSE IN THE
CAFE OBJECTED TO PETITIONER'S SHUFFLING HIS FEET IN RHYTHM WITH THE
MUSIC OF THE JUKEBOX OF THAT HIS CONDUCT WAS BOISTEROUS OR OFFENSIVE TO
ANYONE PRESENT.  AT THE CLOSE OF HIS EVIDENCE, PETITIONER REPEATED HIS
MOTION FOR DISMISSAL OF THE CHARGES ON THE GROUND THAT A CONVICTION ON
THE FOREGOING EVIDENCE WOULD DEPRIVE HIM OF LIBERTY AND PROPERTY
WITHOUT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.  THE COURT DENIED
THE MOTION, CONVICTED HIM OF BOTH OFFENSES, AND FINED HIM $10 ON EACH
CHARGE.  A MOTION FOR A NEW TRIAL, ON THE SAME GROUNDS, ALSO WAS
DENIED, WHICH EXHAUSTED PETITIONER'S REMEDIES IN THE POLICE COURT. 

SINCE POLICE COURT FINES OF LESS THAN $20 ON A SINGLE CHARGE ARE NOT
APPEALABLE OR OTHERWISE REVIEWABLE IN ANY OTHER KENTUCKY COURT, (FN4)
PETITIONER ASKED THE POLICE COURT TO STAY THE JUDGMENTS SO THAT HE
MIGHT HAVE AN OPPORTUNITY TO APPLY FOR CERTIORARI TO THIS COURT (BEFORE
HIS CASE BECAME MOOT) (FN5) TO REVIEW THE DUE PROCESS CONTENTIONS HE
RAISED.  THE POLICE COURT SUSPENDED JUDGMENT FOR 24 HOURS DURING WHICH
TIME PETITIONER SOUGHT A LONGER STAY FROM THE KENTUCKY CIRCUIT COURT. 
THAT COURT, AFTER EXAMINING THE POLICE COURT'S JUDGMENTS AND
TRANSCRIPT, GRANTED A STAY CONCLUDING THAT "THERE APPEARS TO BE MERIT"
IN THE CONTENTION THAT "THERE IS NO EVIDENCE UPON WHICH CONVICTION AND
SENTENCE BY THE POLICE COURT COULD BE BASED" AND THAT PETITIONER'S
"FEDERAL CONSTITUTIONAL CLAIMS ARE SUBSTANTIAL AND NOT FRIVOLOUS." 
(FN6)  ON APPEAL BY THE CITY, THE KENTUCKY COURT OF APPEALS HELD THAT
THE CIRCUIT COURT LACKED THE POWER TO GRANT THE STAY IT DID, BUT
NEVERTHELESS WENT ON TO TAKE THE EXTRAORDINARY STEP OF GRANTING ITS OWN
STAY, EVEN THOUGH PETITIONER HAD MADE NO ORIGINAL APPLICATION TO THAT
COURT FOR SUCH A STAY.  (FN7)  EXPLAINING ITS REASON, THE COURT OF
APPEALS TOOK OCCASION TO AGREE WITH THE CIRCUIT COURT THAT PETITIONER'S
"FEDERAL CONSTITUTIONAL CLAIMS ARE SUBSTANTIAL AND NOT FRIVOLOUS." 
(FN8)  THE COURT OF APPEALS THEN WENT ON TO SAY THAT PETITIONER: 

"APPEARS TO HAVE A REAL QUESTION AS TO WHETHER HE HAS BEEN DENIED DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION, YET
THIS SUBSTANTIVE RIGHT CANNOT BE TESTED UNLESS WE GRANT HIM A STAY OF
EXECUTION BECAUSE HIS FINES ARE NOT APPEALABLE AND WILL BE SATISFIED BY
BEING SERVED IN JAIL BEFORE HE CAN PREPARE AND FILE HIS PETITION FOR
CERTIORARI.  APPELLEE'S SUBSTANTIVE RIGHT OF DUE PROCESS IS OF NO AVAIL
TO HIM UNLESS THIS COURT GRANTS HIM THE ANCILLARY RIGHT WHEREBY HE MAY
TEST SAME IN THE SUPREME COURT."  (FN9) 

OUR EXAMINATION OF THE RECORD PRESENTED IN THE PETITION FOR
CERTIORARI CONVINCED US THAT ALTHOUGH THE FINES HERE ARE SMALL, THE DUE
PROCESS QUESTIONS PRESENTED ARE SUBSTANTIAL AND WE THEREFORE GRANTED
CERTIORARI TO REVIEW THE POLICE COURT'S JUDGMENTS.  360 U.S. 916. 
COMPARE YICK WO V. HOPKINS, 118 U.S. 356 (SAN FRANCISCO POLICE JUDGES
COURT JUDGMENT IMPOSING A $10 FINE, UPHELD BY STATE APPELLATE COURT,
HELD INVALID AS IN CONTRAVENTION OF THE FOURTEENTH AMENDMENT). 

THE CITY CORRECTLY ASSUMES HERE THAT IF THERE IS NO SUPPORT FOR THESE
CONVICTIONS IN THE RECORD THEY ARE VOID AS DENIALS OF DUE PROCESS. 
(FN10)  THE PERTINENT PORTION OF THE CITY ORDINANCE UNDER WHICH
PETITIONER WAS CONVICTED OF LOITERING READS AS FOLLOWS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON  ...  , WITHOUT VISIBLE MEANS OF
SUPPORT, OR WHO CANNOT GIVE A SATISFACTORY ACCOUNT OF HIMSELF,  ...  TO
SLEEP, LIE, LOAF, OR TRESPASS IN OR ABOUT ANY PREMISES, BUILDING, OR
OTHER STRUCTURE IN THE CITY OF LOUISVILLE, WITHOUT FIRST HAVING
OBTAINED THE CONSENT OF THE OWNER OR CONTROLLER OF SAID PREMISES,
STRUCTURE, OR BUILDING; ...  "  SEC. 85-12, ORDINANCES OF THE CITY OF
LOUISVILLE.  (FN11) 

IN ADDITION TO THE FACT THAT PETITIONER PROVED HE HAD "VISIBLE MEANS
OF SUPPORT," THE PROSECUTOR AT TRIAL SAID "THIS IS A LOITERING CHARGE
HERE.  THERE IS NO CHARGE OF NO VISIBLE MEANS OF SUPPORT."   MOREOVER,
THERE IS NO SUGGESTION THAT PETITIONER WAS SLEEPING, LYING OR
TRESPASSING IN OR ABOUT THIS CAFE.  ACCORDINGLY HE COULD ONLY HAVE BEEN
CONVICTED FOR BEING UNABLE TO GIVE A SATISFACTORY ACCOUNT OF HIMSELF
WHILE LOITERING IN THE CAFE, WITHOUT THE CONSENT OF THE MANAGER.  UNDER
THE WORDS OF THE ORDINANCE ITSELF, IF THE EVIDENCE FAILS TO PROVE ALL
THREE ELEMENTS OF THIS LOITERING CHARGE, THE CONVICTION IS NOT
SUPPORTED BY EVIDENCE, IN WHICH EVENT IT DOES NOT COMPORT WITH DUE
PROCESS OF LAW.  THE RECORD IS ENTIRELY LACKING IN EVIDENCE TO SUPPORT
ANY OF THE CHARGES. 

HERE, PETITIONER SPENT ABOUT HALF AN HOUR ON A SATURDAY EVENING IN
JANUARY IN A PUBLIC CAFE WHICH SOLD FOOD AND BEER TO THE PUBLIC.  WHEN
ASKED TO ACCOUNT FOR HIS PRESENCE THERE, HE SAID HE WAS WAITING FOR A
BUS.  THE CITY CONCEDES THAT THERE IS NO LAW MAKING IT AN OFFENSE FOR A
PERSON IN SUCH A CAFE TO "DANCE," "SHUFFLE" OR "PAT" HIS FEET IN TIME
TO MUSIC.  THE UNDISPUTED TESTIMONY OF THE MANAGER, WHO DID NOT KNOW
WHETHER PETITIONER HAD BOUGHT MACARONI AND BEER OR NOT BUT WHO DID SEE
THE PATTING, SHUFFLING OR DANCING, WAS THAT PETITIONER WAS WELCOME
THERE.  THE MANAGER TESTIFIED THAT HE DID NOT AT ANY TIME DURING
PETITIONER'S STAY IN THE CAFE OBJECT TO ANYTHING PETITIONER WAS DOING
AND THAT HE NEVER SAY PETITIONER DO ANYTHING THAT WOULD CAUSE ANY
OBJECTION.  SURELY THIS IS IMPLIED CONSENT, WHICH THE CITY ADMITTED IN
ORAL ARGUMENT SATISFIES THE ORDINANCE.  THE ARRESTING OFFICER ADMITTED
THAT THERE WAS NOTHING IN ANY WAY "VULGAR" ABOUT WHAT HE CALLED
PETITIONER'S "ORDINARY DANCE," WHATEVER RELEVANCE, IF ANY, VULGARITY
MIGHT HAVE TO A CHARGE OF LOITERING.  THERE SIMPLY IS NO SEMBLANCE OF
EVIDENCE FROM WHICH ANY PERSON COULD REASONABLY INFER THAT PETITIONER
COULD NOT GIVE A SATISFACTORY ACCOUNT OF HIMSELF OR THAT HE WAS
LOITERING OR LOAFING THERE (IN THE ORDINARY SENSE OF THE WORDS) WITHOUT
"THE CONSENT OF THE OWNER OR CONTROLLER" OF THE CAFE. 

PETITIONER'S CONVICTION FOR DISORDERLY CONDUCT WAS UNDER SEC. 85-8 OF
THE CITY ORDINANCE WHICH, WITHOUT DEFINITION, PROVIDES THAT "WHOEVER
SHALL BE FOUND GUILTY OF DISORDERLY CONDUCT IN THE CITY OF LOUISVILLE
SHALL BE FINED  ...  " ETC.  THE ONLY EVIDENCE OF "DISORDERLY CONDUCT"
WAS THE SINGLE STATEMENT OF THE POLICEMAN THAT AFTER PETITIONER WAS
ARRESTED AND TAKEN OUT OF THE CAFE HE WAS VERY ARGUMENTATIVE.  THERE IS
NO TESTIMONY THAT PETITIONER RAISED HIS VOICE, USED OFFENSIVE LANGUAGE,
RESISTED THE OFFICERS OR ENGAGED IN ANY CONDUCT OF ANY KIND LIKELY IN
ANY WAY TO ADVERSELY AFFECT THE GOOD ORDER AND TRANQUILLITY OF THE CITY
OF LOUISVILLE.  THE ONLY INFORMATION THE RECORD CONTAINS ON WHAT THE
PETITIONER WAS "ARGUMENTATIVE" ABOUT IS HIS STATEMENT THAT HE ASKED THE
OFFICERS "WHAT THEY ARRESTED ME FOR."  WE ASSUME, FOR WE ARE JUSTIFIED
IN ASSUMING, THAT MERELY "ARGUING" WITH A POLICEMAN IS NOT, BECAUSE IT
COULD NOT BE, "DISORDERLY CONDUCT" AS A MATTER OF SUBSTANTIVE LAW OF
KENTUCKY.  SEE LANZETTA V. NEW JERSEY, 306 U.S. 451.  MOREOVER,
KENTUCKY LAW ITSELF SEEMS TO PROVIDE THAT IF A MAN WRONGFULLY ARRESTED
FAILS TO OBJECT TO THE ARRESTING OFFICER, HE WAIVES ANY RIGHT TO
COMPLAIN LATER THAT THE ARREST WAS UNLAWFUL.  NICKELL V. COMMONWEALTH,
285 S.W.2D 495, 496. 

THUS WE FIND NO EVIDENCE WHATEVER IN THE RECORD TO SUPPORT THESE
CONVICTIONS.  JUST AS "CONVICTION UPON A CHARGE NOT MADE WOULD BE SHEER
DENIAL OF DUE PROCESS," (FN12) SO IS IT A VIOLATION OF DUE PROCESS TO
CONVICT AND PUNISH A MAN WITHOUT EVIDENCE OF HIS GUILT.  (FN13) 

THE JUDGMENTS ARE REVERSED AND THE CAUSE IS REMANDED TO THE POLICE
COURT OF THE CITY OF LOUISVILLE FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  UPON CONVICTION AND SENTENCE UNDER SECS. 85-8, 85-12 AND 85-13
OF THE ORDINANCES OF THE CITY OF LOUISVILLE, PETITIONER WOULD BE
SUBJECT TO IMPRISONMENT, FINE OR CONFINEMENT IN THE WORKHOUSE UPON
DEFAULT OF PAYMENT OF A FINE. 

FN2  PETITIONER ADDED THAT THE EFFECT OF CONVICTIONS HERE WOULD BE TO
DENY HIM REDRESS FOR THE PRIOR ALLEGED ARBITRARY AND UNLAWFUL ARRESTS. 
THIS WAS BASED ON THE FACT THAT, UNDER KENTUCKY LAW, CONVICTION BARS
SUITS FOR MALICIOUS PROSECUTION AND EVEN FOR FALSE IMPRISONMENT.  THUS,
PETITIONER SAYS, HE IS SUBJECT TO ARBITRARY AND CONTINUED ARRESTS
NEITHER REVIEWABLE BY REGULAR APPELLATE PROCEDURES NOR SUBJECT TO
CHALLENGE IN INDEPENDENT CIVIL ACTIONS. 

FN3  THE OFFICER'S PREVIOUS TESTIMONY THAT PETITIONER HAD BOUGHT NO
FOOD OR DRINK IS SERIOUSLY UNDERMINED, IF NOT CONTRADICTED, BY THE
MANAGER'S TESTIMONY AT TRIAL.  THERE THE MANAGER STATED THAT THE
OFFICER "ASKED ME I HAD SOLD HIM ANY THING TO EAT AND I SAID NO AND HE
SAID ANY BEER AND I SAID NO  ...  ."  AND THE MANAGER ACKNOWLEDGED THAT
PETITIONER MIGHT HAVE BOUGHT SOMETHING AND BEEN SERVED BY A WAITER OR
WAITRESS WITHOUT THE MANAGER NOTICING IT.  WHETHER THERE WAS A PURCHASE
OR NOT, HOWEVER, IS OF NO SIGNIFICANCE TO THE ISSUE HERE. 

FN4  KY. REV. STAT. SEC. 26.080; AND SEE SEC. 26.010.  BOTH THE
JEFFERSON CIRCUIT COURT AND THE KENTUCKY COURT OF APPEALS HELD THAT
FURTHER REVIEW EITHER BY DIRECT APPEAL OR BY COLLATERAL PROCEEDING WAS
FORECLOSED TO PETITIONER.  THOMPSON V. TAUSTINE, NO. 40175, JEFFERSON
(KENTUCKY) CIRCUIT COURT, COMMON PLEAS BRANCH, FIFTH DIVISION (PER
GRAUMAN, J.)  (1959), UNREPORTED; TAUSTINE V. THOMPSON, 322 S.W.2D 100
(KY. 1959).    FN5  WITHOUT A STAY AND BAIL PENDING APPLICATION FOR
REVIEW PETITIONER WOULD HAVE SERVED OUT HIS FINES IN PRISON IN 10 DAYS
AT THE RATE OF $2 A DAY.  TAUSTINE V. THOMPSON, 322 S.W.2D 100 (KY.
1959). 

FN6  THOMPSON V. TAUSTINE, NO. 40175, JEFFERSON (KENTUCKY) CIRCUIT
COURT, COMMON PLEAS BRANCH, FIFTH DIVISION (PER GRAUMAN, J.)(1959),
UNREPORTED. 

FN7  TAUSTINE V. THOMPSON, 322 S.W.2D 100 (KY. 1959).    FN8  ID., AT
101. 

FN9  ID., AT 102. 

FN10  FOR ILLUSTRATION, THE CITY'S BRIEF IN THIS COURT STATES THAT
THE QUESTIONS PRESENTED ARE "1.  WHETHER THE EVIDENCE WAS SUFFICIENT TO
SUPPORT THE CONVICTIONS, AND THEREFORE MEETS THE REQUIREMENTS OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT  ...  ." 

FN11  SECTION 85-13 PROVIDES PENALTIES FOR VIOLATION OF SEC. 85-12. 

FN12  DE JONGE V. OREGON, 299 U.S. 353, 362.  SEE ALSO COLE V.
ARKANSAS, 333 U.S. 196, 201. 

FN13  SEE SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232; UNITED
STATES EX REL.  VAJTAUER V. COMMISSIONER, 273 U.S. 103, 106; MOORE V.
DEMPSEY, 261 U.S. 86; YICK WO V. HOPKINS, 118 U.S. 356.  CF. AKINS V.
TEXAS, 325 U.S. 398, 402; TOT V. UNITED STATES, 319 U.S. 463, 473
(CONCURRING OPINION); MOONEY V. HOLOHAN, 294 U.S. 103. 
..END :













SCRIPTO V. CARSON 362 U.S. 207. 


NO. 80.  ARGUED FEBRUARY 24, 1960 - DECIDED MARCH 21, 1960 - 105 SO. 2D
775, AFFIRMED. 


APPELLANT, A GEORGIA CORPORATION, HAS NO OFFICE OR PLACE OF BUSINESS
IN FLORIDA AND NO PROPERTY OR REGULAR FULL-TIME EMPLOYEES THERE; BUT IT
DOES HAVE IN FLORIDA TEN BROKERS, WHOLESALERS OR JOBBERS WHO SOLICIT
SALES OF APPELLANT'S PRODUCTS ON A COMMISSION BASIS AND FORWARD ORDERS
TO GEORGIA, WHERE THEY ARE ACCEPTED AND WHENCE THE GOODS ARE SHIPPED TO
FLORIDA RESIDENTS.  HELD:  A FLORIDA STATUTE WHICH LEVIES A TAX ON THE
USE OF SUCH PRODUCTS IN FLORIDA AND MAKES APPELLANT RESPONSIBLE FOR ITS
COLLECTION FROM FLORIDA PURCHASERS IS NOT REPUGNANT EITHER TO THE
COMMERCE CLAUSE OF THE CONSTITUTION OR TO THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  GENERAL TRADING CO. V. STATE TAX COMM'N, 322
U.S. 335, FOLLOWED.  MILLER BROS. CO. V. MARYLAND, 347 U.S. 340,
DISTINGUISHED.  PP. 207-213. 

SCRIPTO, INC., V. CARSON, SHERIFF, ET AL. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

FLORIDA, BY STATUTE, (FN1) REQUIRES APPELLANT, A GEORGIA CORPORATION,
TO BE RESPONSIBLE FOR THE COLLECTION OF A USE TAX ON CERTAIN MECHANICAL
WRITING INSTRUMENTS WHICH APPELLANT SELLS AND SHIPS FROM ITS PLACE OF
BUSINESS IN ATLANTA TO RESIDENTS OF FLORIDA FOR USE AND ENJOYMENT
THERE.  UPON SCRIPTO'S FAILURE TO COLLECT THE TAX, THE APPELLEE
COMPTROLLER LEVIED A USE TAX LIABILITY OF $5,150.66 AGAINST IT.
APPELLANT THEN BROUGHT THIS SUIT TO TEST THE VALIDITY OF THE
IMPOSITION, CONTENDING THAT THE REQUIREMENT OF FLORIDA'S STATUTE PLACES
A BURDEN ON INTERSTATE COMMERCE AND VIOLATES THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION.  IT CLAIMED, IN EFFECT,
THAT THE NATURE OF ITS OPERATIONS IN FLORIDA DOES NOT FORM A SUFFICIENT
NEXUS TO SUBJECT IT TO THE STATUTE'S EXACTIONS.  BOTH THE TRIAL COURT
AND THE SUPREME COURT OF FLORIDA HELD THAT APPELLANT DOES HAVE
SUFFICIENT JURISDICTIONAL CONTACTS IN FLORIDA AND, THEREFORE, MUST
REGISTER AS A DEALER UNDER THE STATUTE AND COLLECT AND REMIT TO THE
STATE THE USE TAX IMPOSED ON ITS AFORESAID SALES.  105 SO. 2D 775.  WE
NOTED PROBABLE JURISDICTION.  361 U.S. 806.  WE AGREE WITH THE RESULT
REACHED BY FLORIDA'S COURTS. 

APPELLANT OPERATES IN ATLANTA AN ADVERTISING SPECIALITY DIVISION
TRADING UNDER THE NAME OF ADGIF COMPANY.  THROUGH IT, APPELLANT IS
ENGAGED IN THE BUSINESS OF SELLING MECHANICAL WRITING INSTRUMENTS WHICH
ARE ADAPTED TO ADVERTISING PURPOSES BY THE PLACING OF PRINTED MATERIAL
THEREON.  IN ITS ADGIF OPERATION, APPELLANT DOES NOT (1) OWN, LEASE, OR
MAINTAIN ANY OFFICE, DISTRIBUTING HOUSE, WAREHOUSE OR OTHER PLACE OF
BUSINESS IN FLORIDA, OR (2) HAVE ANY REGULAR EMPLOYEE OR AGENT THERE. 
(FN2)  NOR DOES IT OWN OR MAINTAIN ANY BANK ACCOUNT OR STOCK OF
MERCHANDISE IN THE STATE.  ORDERS FOR ITS PRODUCTS ARE SOLICITED BY
ADVERTISING SPECIALITY BROKERS OR, AS THE SUPREME COURT OF FLORIDA
CALLED THEM, WHOLESALERS OR JOBBERS, WHO ARE RESIDENTS OF FLORIDA.  AT
THE TIME OF SUIT, THERE WERE 10 SUCH BROKERS - EACH HAVING A WRITTEN
CONTRACT AND A SPECIFIC TERRITORY.  THE SOMEWHAT DETAILED CONTRACT
PROVIDES, INTER ALIA, THAT ALL COMPENSATION IS TO BE ON A COMMISSION
BASIS ON THE SALES MADE, PROVIDED THEY ARE ACCEPTED BY APPELLANT;
REPEAT ORDERS, EVEN IF NOT SOLICITED, ALSO CARRY A COMMISSION IF THE
SALESMAN HAS NOT BECOME INACTIVE THROUGH FAILURE TO SECURE ACCEPTABLE
ORDERS DURING THE PREVIOUS 60 DAYS.  THE CONTRACT SPECIFICALLY PROVIDES
THAT IT IS THE INTENTION OF THE PARTIES "TO CREATE THE RELATIONSHIP
...  OF INDEPENDENT CONTRACTOR."  EACH ORDER IS TO BE SIGNED BY THE
SOLICITOR AS A "SALESMAN"; HOWEVER, HE HAS NO AUTHORITY TO MAKE
COLLECTIONS OR INCUR DEBTS INVOLVING APPELLANT.  EACH SALESMAN IS
FURNISHED CATALOGS, SAMPLES, AND ADVERTISING MATERIAL, AND IS ACTIVELY
ENGAGED IN FLORIDA AS A REPRESENTATIVE "OF SCRIPTO FOR THE PURPOSE OF
ATTRACTING, SOLICITING AND OBTAINING FLORIDA CUSTOMERS" FOR ITS
MECHANICAL ADVERTISING SPECIALITIES.  ORDERS FOR SUCH PRODUCTS ARE SENT
BY THESE SALESMEN DIRECTLY TO THE ATLANTA OFFICE FOR ACCEPTANCE OR
REFUSAL.  IF ACCEPTED, THE SALE IS CONSUMMATED THERE AND THE SALESMAN
IS PAID HIS COMMISSION DIRECTLY.  NO MONEY PASSES BETWEEN THE PURCHASER
AND THE SALESMAN - ALTHOUGH THE LATTER DOES OCCASIONALLY ACCEPT A CHECK
PAYABLE TO THE APPELLANT, IN WHICH EVENT HE IS REQUIRED TO FORWARD IT
TO APPELLANT WITH THE ORDER. 

AS CONSTRUED BY FLORIDA'S HIGHEST COURT, THE IMPOST LEVIED BY THE
STATUTE IS A TAX "ON THE PRIVILEGE OF USING PERSONAL PROPERTY  ...
WHICH HAS COME TO REST  ...  AND HAS BECOME A PART OF THE MASS OF
PROPERTY" WITHIN THE STATE.  105 SO. 2D, AT 781.  IT IS NOT A SALES
TAX, BUT "WAS DEVELOPED AS A DEVICE TO COMPLEMENT SUCH A TAX IN ORDER
TO PREVENT EVASION  ...  BY THE COMPLETION OF PURCHASES IN A NON-TAXING
STATE AND SHIPMENT BY INTERSTATE COMMERCE INTO A TAXING FORUM."  ID.,
AT 779.  THE TAX IS COLLECTIBLE FROM "DEALERS" AND IS TO BE ADDED TO
THE PURCHASE PRICE OF THE MERCHANDISE "AS FAR AS PRACTICABLE."  IN THE
EVENT THAT A DEALER FAILS TO COLLECT THE TAX, HE HIMSELF IS LIABLE FOR
ITS PAYMENT.  THE STATUTE HAS THE CUSTOMARY USE TAX PROVISIONS "AGAINST
DUPLICATION OF THE TAX, AN ALLOWANCE TO THE DEALER FOR MAKING THE
COLLECTION, AND A RECIPROCAL CREDIT ARRANGEMENT WHICH CREDITS AGAINST
THE FLORIDA TAX ANY AMOUNT UP TO THE AMOUNT OF THE FLORIDA TAX WHICH
MIGHT HAVE BEEN PAID TO ANOTHER STATE."  ID., AT 782.  FLORIDA HELD
APPELLANT TO BE A DEALER UNDER ITS STATUTE.  "THE APPLICATION BY THE
COURT OF ITS LOCAL LAWS AND THE FACTS ON WHICH IT FOUNDED ITS JUDGMENT
ARE OF COURSE CONTROLLING HERE."  GENERAL TRADING CO. V. STATE TAX
COMM'N, 322 U.S. 335, 337 (1944). 

THE QUESTION REMAINING IS WHETHER FLORIDA, IN THE LIGHT OF
APPELLANT'S OPERATIONS THERE, MAY COLLECT THE STATE'S USE TAX FROM IT
ON THE BASIS OF PROPERTY BOUGHT FROM APPELLANT AND SHIPPED FROM ITS
HOME OFFICE TO PURCHASERS IN FLORIDA FOR USE THERE. 

FLORIDA HAS WELL STATED THE COURSE OF THIS COURT'S DECISIONS
GOVERNING SUCH LEVIES, AND WE NEED BUT DRIVE HOME ITS CLEAR
UNDERSTANDING.  THERE MUST BE, AS OUR BROTHER JACKSON STATED IN MILLER
BROS. CO. V. MARYLAND, 347 U.S. 340, 344-345 (1954), "SOME DEFINITE
LINK, SOME MINIMUM CONNECTION, BETWEEN A STATE AND THE PERSON, PROPERTY
OR TRANSACTION IT SEEKS TO TAX."  WE BELIEVE THAT SUCH A NEXUS IS
PRESENT HERE.  FIRST, THE TAX IS A NONDISCRIMINATORY EXACTION LEVIED
FOR THE USE AND ENJOYMENT OF PROPERTY WHICH HAS BEEN PURCHASED BY
FLORIDA RESIDENTS AND WHICH HAS ACTUALLY ENTERED INTO AND BECOME A PART
OF THE MASS OF PROPERTY IN THAT STATE.  THE BURDEN OF THE TAX IS PLACED
ON THE ULTIMATE PURCHASER IN FLORIDA AND IT IS HE WHO ENJOYS THE USE OF
THE PROPERTY, REGARDLESS OF ITS SOURCE.  WE NOTE THAT THE APPELLANT IS
CHARGED WITH NO TAX - SAVE WHEN, AS HERE, HE FAILS OR REFUSES TO
COLLECT IT FROM THE FLORIDA CUSTOMER.  NEXT, AS FLORIDA POINTS OUT,
APPELLANT HAS 10 WHOLESALERS, JOBBERS, OR "SALESMEN" CONDUCTING
CONTINUOUS LOCAL SOLICITATION IN FLORIDA AND FORWARDING THE RESULTING
ORDERS FROM THAT STATE TO ATLANTA FOR SHIPMENT OF THE ORDERED GOODS. 
THE ONLY INCIDENCE OF THIS SALES TRANSACTION THAT IS NONLOCAL IS THE
ACCEPTANCE OF THE ORDER.  TRUE, THE "SALESMEN" ARE NOT REGULAR
EMPLOYEES OF APPELLANT DEVOTING FULL TIME TO ITS SERVICE, BUT WE
CONCLUDE THAT SUCH A FINE DISTINCTION IS WITHOUT CONSTITUTIONAL
SIGNIFICANCE.  THE FORMAL SHIFT IN THE CONTRACTUAL TAGGING OF THE
SALESMAN AS "INDEPENDENT" NEITHER RESULTS IN CHANGING HIS LOCAL
FUNCTION OF SOLICITATION NOR BEARS UPON ITS EFFECTIVENESS IN SECURING A
SUBSTANTIAL FLOW OF GOODS INTO FLORIDA.  THIS IS EVIDENCED BY THE
AMOUNT ASSESSED AGAINST APPELLANT ON THE STATUTE'S 3% BASIS OVER A
PERIOD OF BUT FOUR YEARS.  TO PERMIT SUCH FORMAL "CONTRACTUAL SHIFTS"
TO MAKE A CONSTITUTIONAL DIFFERENCE WOULD OPEN THE GATES TO A STAMPEDE
OF TAX AVOIDANCE.  SEE THOMAS REED POWELL, SALES AND USE TAXES:
COLLECTION FROM ABSENTEE VENDORS, 57 HARV. L. REV. 1086, 1090. 
MOREOVER, WE CANNOT SEE, FOR A CONSTITUTIONAL STANDPOINT, "THAT IT WAS
IMPORTANT THAT THE AGENT WORKED FOR SEVERAL PRINCIPALS."  CHIEF JUDGE
LEARNED HAND, IN BOMZE V. NARDIS SPORTSWEAR, 165 F.2D 33, 36.  THE TEST
IS SIMPLY THE NATURE AND EXTENT OF THE ACTIVITIES OF THE APPELLANT IN
FLORIDA.  IN SHORT, WE CONCLUDE THAT THIS CASE IS CONTROLLED BY GENERAL
TRADING CO., SUPRA.  AS WAS SAID THERE, "ALL THESE DIFFERENTIATIONS ARE
WITHOUT CONSTITUTIONAL SIGNIFICANCE.  OF COURSE, NO STATE CAN TAX THE
PRIVILEGE OF DOING INTERSTATE BUSINESS.  SEE WESTERN LIVE STOCK V.
BUREAU, 303 U.S. 250.  THAT IS WITHIN THE PROTECTION OF THE COMMERCE
CLAUSE AND SUBJECT TO THE POWER OF CONGRESS.  ON THE OTHER HAND, THE
MERE FACT THAT PROPERTY IS USED FOR INTERSTATE COMMERCE OR HAS COME
INTO AN OWNER'S POSSESSION AS A RESULT OF INTERSTATE COMMERCE DOES NOT
DIMINISH THE PROTECTION WHICH HE MAY DRAW FROM A STATE TO THE UPKEEP OF
WHICH HE MAY BE ASKED TO BEAR HIS FAIR SHARE."  322 U.S., AT 338. 

NOR DO WE BELIEVE THAT FLORIDA'S REQUIREMENT THAT APPELLANT BE ITS
TAX COLLECTOR ON SUCH ORDERS FROM ITS RESIDENTS CHANGES THE SITUATION. 
AS WAS POINTED OUT IN GENERAL TRADING CO., THIS IS "A FAMILIAR AND
SANCTIONED DEVICE."  IBID.  MOREOVER, WE NOTE THAT FLORIDA REIMBURSES
APPELLANT FOR ITS SERVICE IN THIS REGARD. 

APPELLANT EARNESTLY CONTENDS THAT MILLER BROS. CO. V. MARYLAND,
SUPRA, IS TO THE CONTRARY.  WE THINK NOT.  MILLER HAD NO SOLICITORS IN
MARYLAND; THERE WAS NO "EXPLOITATION OF THE CONSUMER MARKET"; NO
REGULAR, SYSTEMATIC DISPLAYING OF ITS PRODUCTS BY CATALOGS, SAMPLES OR
THE LIKE.  BUT, ON THE CONTRARY, THE GOODS ON WHICH MARYLAND SOUGHT TO
FORCE MILLER TO COLLECT ITS TAX WERE SOLD TO RESIDENTS OF MARYLAND WHEN
PERSONALLY PRESENT AT MILLER'S STORE IN DELAWARE.  TRUE, THERE WAS AN
"OCCASIONAL" DELIVERY OF SUCH PURCHASES BY MILLER INTO MARYLAND, AND IT
DID OCCASIONALLY MAIL NOTICES OF SPECIAL SALES TO FORMER CUSTOMERS; BUT
MARYLANDERS WENT TO DELAWARE TO MAKE PURCHASES - MILLER DID NOT GO TO
MARYLAND FOR SALES.  MOREOVER, IT WAS IMPOSSIBLE FOR MILLER TO
DETERMINE THAT GOODS SOLD FOR CASH TO A CUSTOMER OVER THE COUNTER AT
ITS STORE IN DELAWARE WERE TO BE USED AND ENJOYED IN MARYLAND.  THIS
LED THE COURT TO CONCLUDE THAT MILLER WOULD BE MADE "MORE VULNERABLE TO
LIABILITY FOR ANOTHER'S TAX THAN TO A TAX ON ITSELF."  347 U.S , AT
346.  IN VIEW  OF THESE CONSIDERATIONS, WE CONCLUDE THAT THE "MINIMUN
CONNECTIONS" NOT PRESENT IN MILLER ARE MORE THAN SUFFICIENT. 

THE JUDGMENT IS THEREFORE AFFIRMED. 

FN1  THE PERTINENT PROVISIONS OF THIS STATUTE ARE: 

"212.06  SAME; COLLECTIBLE FROM DEALERS; DEALERS DEFINED; DEALERS TO
COLLECT FROM PURCHASERS; LEGISLATIVE INTENT AS TO SCOPE OF TAX. 

"(1)  THE AFORESAID TAX AT THE RATE OF THREE PER CENT OF THE RETAIL
SALES PRICE, AS OF THE MOMENT OF SALE, OR THREE PER CENT OF THE COST
PRICE, AS OF THE MOMENT OF PURCHASE, AS THE CASE MAY BE, SHALL BE
COLLECTIBLE FROM ALL DEALERS AS HEREIN DEFINED ON THE SALE AT RETAIL,
THE USE, THE CONSUMPTION, THE DISTRIBUTION AND THE STORAGE FOR USE OR
CONSUMPTION IN THIS STATE, OF TANGIBLE PERSONAL PROPERTY. 

"(2)  ...  (G)  'DEALER' ALSO MEANS AND INCLUDES EVERY PERSON WHO
SOLICITS BUSINESS EITHER BY REPRESENTATIVES OR BY THE DISTRIBUTION OF
CATALOGS OR OTHER ADVERTISING MATTER AND BY REASON THEREOF RECEIVES AND
ACCEPTS ORDERS FROM CONSUMERS IN THE STATE, AND SUCH DEALER SHALL
COLLECT THE TAX IMPOSED BY THIS CHAPTER FROM THE PURCHASER AND NO
ACTION EITHER IN LAW OR IN EQUITY ON A SALE OR TRANSACTION AS PROVIDED
BY THE TERMS OF THIS CHAPTER MAY BE HAD IN THIS STATE BY ANY SUCH
DEALER UNLESS IT BE AFFIRMATIVELY SHOWN THAT THE PROVISIONS OF THIS
CHAPTER HAVE BEEN FULLY COMPLIED WITH." 

FN2  APPELLANT SCRIPTO DOES EMPLOY ONE SALESMAN BUT HE HANDLES ITS
REGULAR LINE OF PRODUCTS AND HAS NO CONNECTION WITH ADGIF.  THE FLORIDA
COURTS FOUND THAT HIS PRESENCE WAS NOT RELEVANT TO THE DETERMINATION OF
WHETHER APPELLANT WAS INCLUDED WITHIN THE TERMS OF THE STATUTE. 

MR. JUSTICE FRANKFURTER, DEEMING THIS CASE TO BE NEARER TO GENERAL
TRADING CO. V. STATE TAX COMMISSION, 322 U.S. 335, THAN IT IS TO MILLER
BROS. CO. V. MARYLAND, 347 U.S. 340, CONCURS IN THE RESULT. 

MR. JUSTICE WHITTAKER, BELIEVING THAT FLORIDA'S ACTION DENIES TO
APPELLANT DUE PROCESS OF LAW AND ALSO DIRECTLY BURDENS INTERSTATE
COMMERCE AS HELD IN MILLER BROS. CO. V. MARYLAND, 347 U.S. 340, AND IN
MCLEOD V. DILWORTH CO., 322 U.S. 327, AND ADHERING TO HIS VIEWS
EXPRESSED IN NORTHWESTERN CEMENT CO. V. MINNESOTA, 358 U.S. 450, 477,
WOULD REVERSE THE JUDGMENT. 
..END :


















MCGANN V. UNITED STATES 362 U.S. 214 


NO. 153.  ARGUED MARCH 3, 1960 - DECIDED MARCH 21, 1960 - CERTIORARI
DISMISSED AS IMPROVIDENTLY GRANTED. 


MCGANN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE WRIT OF CERTIORARI WAS IMPROVIDENTLY GRANTED AND MUST BE
DISMISSED.  WHEN THE CASE WAS BROUGHT HERE, ON THE MEAGER DOCUMENTATION
WHICH SO OFTEN IS ALL THAT IS PRESENTED BY INDIGENT PRISONERS SEEKING
REVIEW ON THEIR OWN BEHALF, WE ASSUMED THAT A QUESTION INVOLVING THE
CONSTRUCTION OF 28 U.S.C. SEC. 2255 CALLED FOR ADJUDICATION.  AFTER
ARGUMENT, IT BECAME CLEAR THAT THE QUESTION OF CONSTRUCTION IS NOT
APPROPRIATELY PRESENTED BY THE RECORD BECAUSE PETITIONER'S CLAIM UPON
THE MERITS WAS FULLY CONSIDERED AND DECIDED BELOW, AND WE FIND HIS
CHALLENGE OF THAT ACTION TO BE SO INSUBSTANTIAL AS NOT TO HAVE
WARRANTED BRINGING THE CASE HERE. 
..END :








CITY OF COVINGTON, KENTUCKY V. PUBLIC SERVICE COMM'N OF KENTUCKY 362
U.S. 215 


NO. 628.  DECIDED MARCH 21, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL QUESTION - REPORTED BELOW:  327 S.W.2D 954. 


CITY OF COVINGTON, KENTUCKY, V. PUBLIC SERVICE COMM'N OF KENTUCKY ET
AL. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















SMITH V. COLUMBIA COUNTY, OREGON 362 U.S. 215 


NO. 645.  DECIDED MARCH 21, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  216 ORE.  662, 341 P.2D
540. 


SMITH ET AL. V. COLUMBIA COUNTY, OREGON, ET AL. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















WILLIS V. UNITED STATES 362 U.S. 216 


NO. 546, MISC.  DECIDED MARCH 21, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


WILLIS V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  UPON
THE SUGGESTION OF THE SOLICITOR GENERAL THAT THE CASE BE REMANDED TO
THE COURT OF APPEALS IN LIGHT OF WHAT WE ARE INFORMED IS THE PRESENT
PRACTICE OF THAT COURT "TO APPOINT AN ATTORNEY IN ALL CASES ON DIRECT
APPEAL WHERE THE TRIAL JUDGE'S CERTIFICATE OF BAD FAITH IS ATTACKED"
THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS. 
..END :










TALLEY V. CALIFORNIA 362 U.S. 60 


NO. 154.  ARGUED JANUARY 13-14, 1960 - DECIDED MARCH 7, 1960 - 172 CAL.
APP. 2D SUPP. 797, 332 P.2D 447, REVERSED. 


OVER PETITIONER'S PROTEST THAT IT INVADED HIS FREEDOM OF SPEECH AND
PRESS IN VIOLATION OF THE FOURTEENTH AND FIRST AMENDMENTS TO THE
FEDERAL CONSTITUTION, HE WAS CONVICTED OF VIOLATING A CITY ORDINANCE
WHICH FORBADE DISTRIBUTION, IN ANY PLACE UNDER ANY CIRCUMSTANCES, OF
ANY HANDBILL WHICH DID NOT HAVE PRINTED THEREON THE NAME AND ADDRESS OF
THE PERSON WHO PREPARED, DISTRIBUTED OR SPONSORED IT.  HELD:  THE
ORDINANCE IS VOID ON ITS FACE, AND THE CONVICTION IS REVERSED.  LOVELL
V. GRIFFIN, 303 U.S. 444.  PP. 60-66. 

TALLEY V. CALIFORNIA. 

CERTIORARI TO THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, LOS ANGELES COUNTY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED HERE IS WHETHER THE PROVISIONS OF A LOS
ANGELES CITY ORDINANCE RESTRICTING THE DISTRIBUTION OF HANDBILLS
"ABRIDGE THE FREEDOM OF SPEECH AND OF THE PRESS SECURED AGAINST STATE
INVASION BY THE FOURTEENTH AMENDMENT OF THE CONSTITUTION."  (FN1)  THE
ORDINANCE, SEC. 28.06 OF THE MUNICIPAL CODE OF THE CITY OF LOS ANGELES,
PROVIDES: 

"NO PERSON SHALL DISTRIBUTE ANY HAND-BILL IN ANY PLACE UNDER ANY
CIRCUMSTANCES, WHICH DOES NOT HAVE PRINTED ON THE COVER, OR THE FACE
THEREOF, THE NAME AND ADDRESS OF THE FOLLOWING: 

"(A)  THE PERSON WHO PRINTED, WROTE, COMPILED OR MANUFACTURED THE
SAME. 

"(B)  THE PERSON WHO CAUSED THE SAME TO BE DISTRIBUTED; PROVIDED,
HOWEVER, THAT IN THE CASE OF A FICTITIOUS PERSON OR CLUB, IN ADDITION
TO SUCH FICTITIOUS NAME, THE TRUE NAMES AND ADDRESSES OF THE OWNERS,
MANAGERS OR AGENTS OF THE PERSON SPONSORING SAID HAND-BILL SHALL ALSO
APPEAR THEREON." 

THE PETITIONER WAS ARRESTED AND TRIED IN A LOS ANGELES MUNICIPAL
COURT FOR VIOLATING THIS ORDINANCE.  IT WAS STIPULATED THAT THE
PETITIONER HAD DISTRIBUTED HANDBILLS IN LOS ANGELES, AND TWO OF THEM
WERE PRESENTED IN EVIDENCE.  EACH HAD PRINTED ON IT THE FOLLOWING:

         NATIONAL CONSUMERS MOBILIZATION,

               BOX 6533,

LOS ANGELES 55, CALIF.

                               PLEASANT 9-1576. 

THE HANDBILLS URGED READERS TO HELP THE ORGANIZATION CARRY ON A
BOYCOTT AGAINST CERTAIN MERCHANTS AND BUSINESSMEN, WHOSE NAMES WERE
GIVEN, ON THE GROUND THAT, AS ONE SET OF HANDBILLS SAID, THEY CARRIED
PRODUCTS OF "MANUFACTURERS WHO WILL NOT OFFER EQUAL EMPLOYMENT
OPPORTUNITIES TO NEGROES, MEXICANS, AND ORIENTALS."  THERE ALSO
APPEARED A BLANK, WHICH, IF SIGNED, WOULD REQUEST ENROLLMENT OF THE
SIGNER AS A "MEMBER OF NATIONAL CONSUMERS MOBILIZATION," AND WHICH WAS
PRECEDED BY A STATEMENT THAT "I BELIEVE THAT EVERY MAN SHOULD HAVE AN
EQUAL OPPORTUNITY FOR EMPLOYMENT NO MATTER WHAT HIS RACE, RELIGION, OR
PLACE OF BIRTH." 

THE MUNICIPAL COURT HELD THAT THE INFORMATION PRINTED ON THE
HANDBILLS DID NOT MEET THE REQUIREMENTS OF THE ORDINANCE, FOUND THE
PETITIONER GUILTY AS CHARGED, AND FINED HIM $10.  THE APPELLATE
DEPARTMENT OF THE SUPERIOR COURT OF THE COUNTY OF LOS ANGELES AFFIRMED
THE CONVICTION, REJECTING PETITIONER'S CONTENTION, TIMELY MADE IN BOTH
STATE COURTS, THAT THE ORDINANCE INVADED HIS FREEDOM OF SPEECH AND
PRESS IN VIOLATION OF THE FOURTEENTH AND FIRST AMENDMENTS TO THE
FEDERAL CONSTITUTION.  (FN2)  172 CAL. APP. 2D SUPP. 797, 332 P.2D
447.  SINCE THIS WAS THE HIGHEST STATE COURT AVAILABLE TO PETITIONER,
WE GRANTED CERTIORARI TO CONSIDER THIS CONSTITUTIONAL CONTENTION.  360
U.S. 928. 

IN LOVELL V. GRIFFIN, 303 U.S. 444, WE HELD VOID ON ITS FACE AN
ORDINANCE THAT COMPREHENSIVELY FORBADE ANY DISTRIBUTION OF LITERATURE
AT ANY TIME OR PLACE IN GRIFFIN, GEORGIA, WITHOUT A LICENSE.  PAMPHLETS
AND LEAFLETS, IT WAS POINTED OUT, "HAVE BEEN HISTORIC WEAPONS IN THE
DEFENSE OF LIBERTY" (FN3) AND ENFORCEMENT OF THE GRIFFIN ORDINANCE
"WOULD RESTORE THE SYSTEM OF LICENSE AND CENSORSHIP IN ITS BALDEST
FORM."  ID., AT 452.  A YEAR LATER WE HAD BEFORE US FOUR ORDINANCES
EACH FORBIDDING DISTRIBUTION OF LEAFLETS - ONE IN IRVINGTON, NEW
JERSEY, ONE IN LOS ANGELES, CALIFORNIA, ONE IN MILWAUKEE, WISCONSIN,
AND ONE IN WORCESTER, MASSACHUSETTS.  SCHNEIDER V. STATE, 308 U.S.
147.  EFFORTS WERE MADE TO DISTINGUISH THESE FOUR ORDINANCES FROM THE
ONE HELD VOID IN THE GRIFFIN CASE.  THE CHIEF GROUNDS URGED FOR
DISTINCTION WERE THAT THE FOUR ORDINANCES HAD BEEN PASSED TO PREVENT
EITHER FRAUDS, DISORDER, OR LITTERING, ACCORDING TO THE RECORDS IN
THESE CASES, AND ANOTHER GROUND URGED WAS THAT TWO OF THE ORDINANCES
APPLIED ONLY TO CERTAIN CITY AREAS.  THIS COURT REFUSED TO UPHOLD THE
FOUR ORDINANCES ON THOSE GROUNDS POINTING OUT THAT THERE WERE OTHER
WAYS TO ACCOMPLSIH THESE LEGITIMATE AIMS WITHOUT ABRIDGING FREEDOM OF
SPEECH AND PRESS.  FRAUDS, STREET LITTERING AND DISORDERLY CONDUCT
COULD BE DENOUNCED AND PUNISHED AS OFFENSES, THE COURT SAID.  SEVERAL
YEARS LATER WE FOLLOWED THE GRIFFIN AND SCHNEIDER CASES IN STRIKING
DOWN A DALLAS, TEXAS, ORDINANCE WHICH WAS APPLIED TO PROHIBIT THE
DISSEMINATION OF INFORMATION BY THE DISTRIBUTION OF HANDBILLS.  WE SAID
THAT ALTHOUGH A CITY COULD PUNISH ANY PERSON FOR CONDUCT ON THE STREETS
IF HE VIOLATES A VALID LAW, "ONE WHO IS RIGHTFULLY ON A STREET  ...
CARRIES WITH HIM THERE AS ELSEWHERE THE CONSTITUTIONAL RIGHT TO EXPRESS
HIS VIEWS IN AN ORDERLY FASHION  ...  BY HANDBILLS AND LITERATURE AS
WELL AS BY THE SPOKEN WORD."  JAMISON V. TEXAS, 318 U.S. 413, 416. 

THE BROAD ORDINANCE NOW BEFORE US, BARRING DISTRIBUTION OF "ANY HAND
BILL IN ANY PLACE UNDER ANY CIRCUMSTANCES," (FN4) FALLS PRECISELY UNDER
THE BAN OF OUR PRIOR CASES UNLESS THIS ORDINANCE IS SAVED BY THE
QUALIFICATION THAT HANDBILLS CAN BE DISTRIBUTED IF THEY HAVE PRINTED ON
THEM THE NAMES AND ADDRESSES OF THE PERSONS WHO PREPARED, DISTRIBUTED
OR SPONSORED THEM.  FOR, AS IN GRIFFIN, THE ORDINANCE HERE IS NOT
LIMITED TO HANDBILLS WHOSE CONTENT IS "OBSCENE OR OFFENSIVE TO PUBLIC
MORALS OR THAT ADVOCATES UNLAWFUL CONDUCT."  (FN5)  COUNSEL HAS URGED
THAT THIS ORDINANCE IS AIMED AT PROVIDING A WAY TO IDENTIFY THOSE
RESPONSIBLE FOR FRAUD, FALSE ADVERTISING AND LIBEL.  YET THE ORDINANCE
IS IN NO MANNER SO LIMITED, NOR HAVE WE BEEN REFERRED TO ANY
LEGISLATIVE HISTORY INDICATING SUCH A PURPOSE.  THEREFORE WE DO NOT
PASS ON THE VALIDITY OF AN ORDINANCE LIMITED TO PREVENT THESE OR ANY
OTHER SUPPOSED EVILS.  THIS ORDINANCE SIMPLY BARS ALL HANDBILLS UNDER
ALL CIRCUMSTANCES ANYWHERE THAT DO NOT HAVE THE NAMES AND ADDRESSES
PRINTED ON THEM IN THE PLACE THE ORDINANCE REQUIRES. 

THERE CAN BE NO DOUBT THAT SUCH AN IDENTIFICATION REQUIREMENT WOULD
TEND TO RESTRICT FREEDOM TO DISTRIBUTE INFORMATION AND THEREBY FREEDOM
OF EXPRESSION.  "LIBERTY OF CIRCULATING IS AS ESSENTIAL TO THAT FREEDOM
AS LIBERTY OF PUBLISHING; INDEED, WITHOUT THE CIRCULATION, THE
PUBLICATION WOULD BE OF LITTLE VALUE."  LOVELL V. GRIFFIN, 303 U.S., AT
452. 

ANONYMOUS PAMPHLETS, LEAFLETS, BROCHURES AND EVEN BOOKS HAVE PLAYED
AN IMPORTANT ROLE IN THE PROGRESS OF MANKIND.  PERSECUTED GROUPS AND
OPPRESSIVE PRACTICES AND LAWS EITHER ANONYMOUSLY OR NOT AT ALL.  THE
OBNOXIOUS PRESS LICENSING LAW OF ENGLAND, WHICH WAS ALSO ENFORCED ON
THE COLONIES WAS DUE IN PART TO THE KNOWLEDGE THAT EXPOSURE OF THE
NAMES OF PRINTERS, WRITERS AND DISTRIBUTORS WOULD LESSEN THE
CIRCULATION OF LITERATURE CRITICAL OF THE GOVERNMENT.  THE OLD
SEDITIOUS LIBEL CASES IN ENGLAND SHOW THE LENGTHS TO WHICH GOVERNMENT
HAD TO GO TO FIND OUT WHO WAS RESPONSIBLE FOR BOOKS THAT WERE OBNOXIOUS
TO THE RULERS.  JOHN LILBURNE WAS WHIPPED, PILLORIED AND FINED FOR
REFUSING TO ANSWER QUESTIONS DESIGNED TO GET EVIDENCE TO CONVICT HIM OR
SOMEONE ELSE FOR THE SECRET DISTRIBUTION OF BOOKS IN ENGLAND.  TWO
PURITAN MINISTERS, JOHN PENRY AND JOHN UDAL, WERE SENTENCED TO DEATH ON
CHARGES THAT THEY WERE RESPONSIBLE FOR WRITING, PRINTING OR PUBLISHING
BOOKS.  (FN6)  BEFORE THE REVOLUTIONARY WAR COLONIAL PATRIOTS
FREQUENTLY HAD TO CONCEAL THEIR AUTHORSHIP OR DISTRIBUTION OF
LITERATURE THAT EASILY COULD HAVE BROUGHT DOWN ON THEM PROSECUTIONS BY
ENGLISH-CONTROLLED COURTS.  ALONG ABOUT THAT TIME THE LETTERS OF JUNIUS
WERE WRITTEN AND THE IDENTITY OF THEIR AUTHOR IS UNKNOWN TO THIS DAY. 
(FN7)  EVEN THE FEDERALIST PAPERS, WRITTEN IN FAVOR OF THE ADOPTION OF
OUR CONSTITUTION, WERE PUBLISHED UNDER FICTITIOUS NAMES.  IT IS PLAIN
THAT ANONYMITY HAS SOMETIMES BEEN ASSUMED FOR THE MOST CONSTRUCTIVE
PURPOSES. 

WE HAVE RECENTLY HAD OCCASION TO HOLD IN TWO CASES THAT THERE ARE
TIMES AND CIRCUMSTANCES WHEN STATES MAY NOT COMPEL MEMBERS OF GROUPS
ENGAGED IN THE DISSEMINATION OF IDEAS TO BE PUBLICLY IDENTIFIED.  BATES
V. LITTLE ROCK, 361 U.S. 516; N.A.A.C.P. V. ALABAMA, 357 U.S. 449,
462.  THE REASON FOR THOSE HOLDINGS WAS THAT IDENTIFICATION AND FEAR OF
REPRISAL MIGHT DETER PERFECTLY PEACEFUL DISCUSSIONS OF PUBLIC MATTERS
OF IMPORTANCE.  THIS BROAD LOS ANGELES ORDINANCE IS SUBJECT TO THE SAME
INFIRMITY.  WE HOLD THAT IT, LIKE THE GRIFFIN, GEORGIA, ORDINANCE, IS
VOID ON ITS FACE. 

THE JUDGMENT OF THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA IS REVERSED AND THE CAUSE IS REMANDED TO IT FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.   IT IS SO
ORDERED. 

FN1  SCHNEIDER V. STATE, 308 U.S. 147, 154.  CF. LOVELL V. GRIFFIN,
303 U.S. 444, 450. 

FN2  PETITIONER ALSO ARGUES HERE THAT THE ORDINANCE BOTH ON ITS FACE
AND AS CONSTRUED AND APPLIED "ARBITRARILY DENIES PETITIONER EQUAL
PROTECTION OF THE LAWS IN VIOLATION OF THE DUE PROCESS AND EQUAL
PROTECTION" CLAUSES OF THE FOURTEENTH AMENDMENT.  THIS ARGUMENT IS
BASED ON THE FACT THAT THE ORDINANCE APPLIES TO HANDBILLS ONLY, AND
DOES NOT INCLUDE WITHIN ITS PROSCRIPTION BOOKS, MAGAZINES AND
NEWSPAPERS.  OUR DISPOSITION OF THE CASE MAKES IT UNNECESSARY TO
CONSIDER THIS CONTENTION. 

FN3  THE COURT'S ENTIRE SENTENCE WAS:  "THESE PAMPHLETS AND LEAFLETS
INDEED HAVE BEEN HISTORIC WEAPONS IN THE DEFENSE OF LIBERTY, AS THE
PAMPHLETS OF THOMAS PAINE AND OTHERS IN OUR OWN HISTORY ABUNDANTLY
ATTEST."  IT HAS BEEN NOTED THAT SOME OF THOMAS PAINE'S PAMPHLETS WERE
SIGNED WITH PSEUDONYMS.  SEE BLEYER, MAIN CURRENTS IN THE HISTORY OF
AMERICAN JOURNALISM (1927), 90-93.  ILLUSTRATIONS OF OTHER ANONYMOUS
AND PSEUDONYMOUS PAMPHLETS AND OTHER WRITINGS USED TO DISCUSS IMPORTANT
PUBLIC QUESTIONS CAN BE FOUND IN THIS SAME VOLUME. 

FN4  SECTION 28.00 OF THE LOS ANGELES MUNICIPAL CODE DEFINES
"HANDBILL" AS FOLLOWS:  "'HAND-BILL' SHALL MEAN ANY HAND-BILL, DODGER,
COMMERCIAL ADVERTISING CIRCULAR, FOLDER, BOOKLET, LETTER, CARD,
PAMPHLET, SHEET, POSTER, STICKER, BANNER, NOTICE OR OTHER WRITTEN,
PRINTED OR PAINTED MATTER CALCULATED TO ATTRACT ATTENTION OF THE
PUBLIC." 

FN5  LOVELL V. GRIFFIN, 303 U.S., AT 451. 

FN6  PENRY WAS EXECUTED AND UDAL DIED AS A RESULT OF HIS
CONFINEMENT.  1 HALLAM, THE CONSTITUTIONAL HISTORY OF ENGLAND (1855),
205-206, 232. 

FN7  IN ONE OF THE LETTERS WRITTEN MAY 28, 1770, THE AUTHOR ASKED THE
FOLLOWING QUESTION ABOUT THE TEA TAX IMPOSED ON THIS COUNTRY, A
QUESTION WHICH HE COULD HARDLY HAVE ASKED BUT FOR HIS ANONYMITY: 

"WHAT IS IT THEN, BUT AN ODIOUS, UNPROFITABLE EXERTION OF A
SPECULATIVE RIGHT, AND FIXING A BADGE OF SLAVERY UPON THE AMERICANS,
WITHOUT SERVICE TO THEIR MASTERS?"  2 LETTERS OF JUNIUS (1821) 39. 

MR. JUSTICE HARLAN, CONCURRING. 

IN JUDGING THE VALIDITY OF MUNICIPAL ACTION AFFECTING RIGHTS OF
SPEECH OR ASSOCIATION PROTECTED AGAINST INVASION BY THE FOURTEENTH
AMENDMENT, I DO NOT BELIEVE THAT WE CAN ESCAPE, AS MR. JUSTICE ROBERTS
SAID IN SCHNEIDER V. STATE, 308 U.S. 147, 161, "THE DELICATE AND
DIFFICULT TASK" OF WEIGHING "THE CIRCUMSTANCES" AND APPRAISING "THE
SUBSTANTIALITY OF THE REASONS ADVANCED IN SUPPORT OF THE REGULATION OF
THE FREE ENJOYMENT OF" SPEECH.  MORE RECENTLY WE HAVE SAID THAT STATE
ACTION IMPINGING ON FREE SPEECH AND ASSOCIATION WILL NOT BE SUSTAINED
UNLESS THE GOVERNMENTAL INTEREST ASSERTED TO SUPPORT SUCH IMPINGEMENT
IS COMPELLING.  SEE N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 463, 464;
SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 265 (CONCURRING OPINION); SEE
ALSO BATES V. LITTLE ROCK, 361 U.S. 516. 

HERE THE STATE SAYS THAT THIS ORDINANCE IS AIMED AT THE PREVENTION OF
"FRAUD, DECEIT, FALSE ADVERTISING, NEGLIGENT USE OF WORDS, OBSCENITY,
AND LIBEL," IN THAT IT WILL AID IN THE DETECTION OF THOSE RESPONSIBLE
FOR SPREADING MATERIAL OF THAT CHARACTER.  BUT THE ORDINANCE IS NOT SO
LIMITED, AND I THINK IT WILL NOT DO FOR THE STATE SIMPLY TO SAY THAT
THE CIRCULATION OF ALL ANONYMOUS HANDBILLS MUST BE SUPPRESSED IN ORDER
TO IDENTIFY THE DISTRIBUTORS OF THOSE THAT MAY BE OF AN OBNOXIOUS
CHARACTER.  IN THE ABSENCE OF A MORE SUBSTANTIAL SHOWING AS TO LOS
ANGELES' ACTUAL EXPERIENCE WITH THE DISTRIBUTION OF OBNOXIOUS
HANDBILLS,* SUCH A GENERALITY IS FOR ME TOO REMOTE TO FURNISH A
CONSTITUTIONALLY ACCEPTABLE JUSTIFICATION FOR THE DETERRENT EFFECT ON
FREE SPEECH WHICH THIS ALL-EMBRACING ORDINANCE IS LIKELY TO HAVE. 

*ON THE ORAL ARGUMENT THE CITY ATTORNEY STATED: 

"WE WERE ABLE TO FIND OUT THAT PRIOR TO 1931 AN EFFORT WAS MADE BY
THE LOCAL CHAMBER OF COMMERCE, URGING THE CITY COUNCIL TO DO SOMETHING
ABOUT THESE HANDBILLS AND ADVERTISING MATTERS WHICH WERE FALSE AND
MISLEADING - HAD NO NAMES OF SPONSORS.  THEY WERE PARTICULARLY
INTERESTED IN THE FICTITIOUS NAME.  THEY SAID, 'WHO ARE THESE PEOPLE
THAT ARE DISTRIBUTING; WHO ARE ADVERTISING; DOING THINGS OF THAT
SORT?"  THE MEAGER RECORD THAT WE WERE ABLE TO FIND INDICATES THAT A
REQUEST FROM THE COUNCIL TO THE CITY ATTORNEY AS TO THEIR LEGAL OPINION
ON THIS SUBJECT.  THE CITY ATTORNEY WROTE BACK AND FORMED THE
CONCLUSION THAT DISTRIBUTION OF HANDBILLS, PAMPHLETS, OR OTHER MATTERS,
WITHOUT THE NAME OF THE FICTITIOUS FIRM OR OFFICERS WOULD BE LEGAL. 
THEREAFTER IN THE EARLY PART OF 1932 AN ORDINANCE WAS DRAFTED, AND
SUBMITTED TO THE CITY COUNCIL, AND APPROVED BY THEM, WHICH RELATED TO
THE ORIGINAL SUBJECT - UNLAWFUL FOR ANY PERSON, FIRM OR ASSOCIATION TO
DISTRIBUTE IN THE CITY OF LOS ANGELES ANY ADVERTISEMENT OR HANDBILL -
OR ANY OTHER MATTER WHICH DOES NOT HAVE THE NAMES OF THE SPONSORS OF
SUCH LITERATURE."    ON THESE GROUNDS I CONCUR IN THE JUDGMENT OF THE
COURT. 

MR. JUSTICE CLARK, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

TO ME, LOS ANGELES' ORDINANCE CANNOT BE READ AS BEING VOID ON ITS
FACE.  CERTAINLY A FAIR READING OF IT DOES NOT PERMIT A CONCLUSION THAT
IT PROHIBITS THE DISTRIBUTION OF HANDBILLS "OF ANY KIND AT ANY TIME, AT
ANY PLACE, AND IN ANY MANNER," LOVELL V. GRIFFIN, 303 U.S. 444, 451
(1938), AS THE COURT SEEMS TO CONCLUDE.  IN GRIFFIN, THE ORDINANCE
COMPLETELY PROHIBITED THE UNLICENSED DISTRIBUTION OF ANY HANDBILLS.  AS
I READ IT, THE ORDINANCE HERE MERELY PROHIBITS THE DISTRIBUTION OF A
HANDBILL WHICH DOES NOT CARRY THE IDENTIFICATION OF THE NAME OF THE
PERSON WHO "PRINTED, WROTE, COMPILED  ...  MANUFACTURED OR  ...
CAUSED" THE DISTRIBUTION OF IT.  THERE COULD WELL BE A COMPELLING
REASON FOR SUCH A REQUIREMENT.  THE COURT IMPLIES AS MUCH WHEN IT
OBSERVES THAT LOS ANGELES HAS NOT "REFERRED TO ANY LEGISLATIVE HISTORY
INDICATING" THAT THE ORDINANCE WAS ADOPTED FOR THE PURPOSE OF
PREVENTING "FRAUD, FALSE ADVERTISING AND LIBEL."  BUT EVEN AS TO ITS
LEGISLATIVE BACKGROUND THERE IS PERTINENT MATERIAL WHICH THE COURT
OVERLOOKS.  AT ORAL ARGUMENT, THE CITY'S CHIEF LAW ENFORCEMENT OFFICER
STATED THAT THE ORDINANCE WAS ORIGINALLY SUGGESTED IN 1931 BY THE LOS
ANGELES CHAMBER OF COMMERCE IN A COMPLAINT TO THE CITY COUNCIL URGING
IT TO "DO SOMETHING ABOUT THESE HANDBILLS AND ADVERTISING MATTERS WHICH
WERE FALSE AND MISLEADING."  UPON INQUIRY BY THE COUNCIL, HE SAID, THE
MATTER WAS REFERRED TO HIS OFFICE, AND THE COUNCIL WAS ADVISED THAT
SUCH AN ORDINANCE AS THE PRESENT ONE WOULD BE VALID.  HE FURTHER STATED
THAT THIS ORDINANCE, RELATING TO THE ORIGINAL INQUIRY OF THE CHAMBER OF
COMMERCE, WAS THEREAFTER DRAFTED AND SUBMITTED TO THE COUNCIL.  IT WAS
ADOPTED IN 1932.  IN THE FACE OF THIS AND THE PRESUMPTION OF VALIDITY
THAT THE ORDINANCE ENJOYS, THE COURT NEVERTHELESS STRIKES IT DOWN,
STATING THAT IT "FALLS PRECISELY UNDER THE BAN OF OUR PRIOR CASES." 
THIS CANNOT FOLLOW, FOR IN EACH OF THE THREE CASES CITED, THE
ORDINANCES EITHER "FORBADE ANY DISTRIBUTION OF LITERATURE ...  WITHOUT
A LICENSE," LOVELL V. GRIFFIN, SUPRA, OR FORBADE, WITHOUT EXCEPTION,
ANY DISTRIBUTION OF HANDBILLS ON THE STREETS, JAMISON V. TEXAS, 318
U.S. 413 (1943); OR, AS IN SCHNEIDER V. STATE, 308 U.S. 147 (1939),
WHICH COVERED DIFFERENT ORDINANCES IN FOUR CITIES, THEY WERE EITHER
OUTRIGHT BANS OR PRIOR RESTRAINTS UPON THE DISTRIBUTION OF HANDBILLS. 
I, THEREFORE, CANNOT SEE HOW THE COURT CAN CONCLUDE THAT THE LOS
ANGELES ORDINANCE HERE "FALLS PRECISELY" UNDER ANY OF THESE CASES.  ON
THE CONTRARY, TO MY MIND, THEY NEITHER CONTROL THIS CASE NOR ARE
APPOSITE TO IT.  IN FACT, IN SCHNEIDER, DEPENDED UPON BY THE COURT, IT
WAS HELD, THROUGH MR. JUSTICE ROBERTS, THAT, "IN EVERY CASE  ...  WHERE
LEGISLATIVE ABRIDGMENT OF THE RIGHTS IS ASSERTED, THE COURTS SHOULD BE
ASTUTE TO EXAMINE THE EFFECT OF THE CHALLENGED LEGISLATION  ...  WEIGH
THE CIRCUMSTANCES AND  ...  APPRAISE THE SUBSTANTIALITY OF THE REASONS
ADVANCED  ...  ."  ID., AT 161.  THE COURT HERE, HOWEVER, MAKES NO
APPRAISAL OF THE CIRCUMSTANCES, OR THE SUBSTANTIALITY OF THE CLAIMS OF
THE LITIGANTS, BUT STRIKES DOWN THE ORDINANCE AS BEING "VOID ON ITS
FACE."  I CANNOT BE A PARTY TO USING SUCH A DEVICE AS AN ESCAPE FROM
THE REQUIREMENTS OF OUR CASES, THE LATEST OF WHICH WAS HANDED DOWN ONLY
LAST MONTH.  BATES V. LITTLE ROCK, 361 U.S. 516.  (FN1) 

THEREFORE, BEFORE PASSING UPON THE VALIDITY OF THE ORDINANCE, I WOULD
WEIGH THE INTERESTS OF THE PUBLIC IN ITS ENFORCEMENT AGAINST THE
CLAIMED RIGHT OF TALLEY.  THE RECORD IS BARREN OF ANY CLAIM, MUCH LESS
PROOF, THAT HE WILL SUFFER ANY INJURY WHATEVER BY IDENTIFYING THE
HANDBILL WITH HIS NAME.  UNLIKE N.A.A.C.P. V. ALABAMA, 357 U.S. 449
(1958), WHICH IS RELIED UPON, THERE IS NEITHER ALLEGATION NOR PROOF
THAT TALLEY OR ANY GROUP SPONSORING HIM WOULD SUFFER "ECONOMIC
REPRISAL, LOSS OF EMPLOYMENT, THREAT OF PHYSICAL COERCION OR OTHER
MANIFESTATIONS OF PUBLIC HOSTILITY."  ID., AT 462.  TALLEY MAKES NO
SHOWING WHATEVER TO SUPPORT HIS CONTENTION THAT A RESTRAINT UPON HIS
FREEDOM OF SPEECH WILL RESULT FROM THE ENFORCEMENT OF THE ORDINANCE. 
THE EXISTENCE OF SUCH A RESTRAINT IS NECESSARY BEFORE WE CAN STRIKE THE
ORDINANCE DOWN. 

BUT EVEN IF THE STATE HAD THIS BURDEN, WHICH IT DOES NOT, THE
SUBSTANTIALITY OF LOS ANGELES' INTEREST IN THE ENFORCEMENT OF THE
ORDINANCE SUSTAINS ITS VALIDITY.  ITS CHIEF LAW ENFORCEMENT OFFICER
SAYS THAT THE ENFORCEMENT OF THE ORDINANCE PREVENTS "FRAUD, DECEIT,
FALSE ADVERTISING, NEGLIGENT USE OF WORDS, OBSCENITY, AND LIBEL," AND,
AS WE HAVE SAID, THAT SUCH WAS ITS PURPOSE.  IN THE ABSENCE OF ANY
SHOWING TO THE CONTRARY BY TALLEY, THIS APPEARS TO ME ENTIRELY
SUFFICIENT. 

I STAND SECOND TO NONE IN SUPPORTING TALLEY'S RIGHT OF FREE SPEECH -
BUT NOT HIS FREEDOM OF ANONYMITY.  THE CONSTITUTION SAYS NOTHING ABOUT
FREEDOM OF ANONYMOUS SPEECH.  IN FACT, THIS COURT HAS APPROVED LAWS
REQUIRING NO LESS THAN LOS ANGELES' ORDINANCE.  I SUBMIT THAT THEY
CONTROL THIS CASE AND REQUIRE ITS APPROVAL UNDER THE ATTACK MADE HERE. 
FIRST, LEWIS PUBLISHING CO. V. MORGAN, 229 U.S. 288 (1913), UPHELD AN
ACT OF CONGRESS REQUIRING ANY NEWSPAPER USING THE SECOND-CLASS MAILS TO
PUBLISH THE NAMES OF ITS EDITOR, PUBLISHER, OWNER, AND STOCKHOLDERS. 
39 U.S.C. SEC. 233.  SECOND, IN THE FEDERAL REGULATION OF LOBBYING ACT,
2 U.S.C. SEC. 267, CONGRESS REQUIRES THOSE ENGAGED IN LOBBYING TO
DIVULGE THEIR IDENTITIES AND GIVE "A MODICUM OF INFORMATION" TO
CONGRESS.  UNITED STATES V. HARRISS, 347 U.S. 612, 625 (1954).  THIRD,
THE SEVERAL STATES HAVE CORRUPT PRACTICES ACTS OUTLAWING, INTER ALIA,
THE DISTRIBUTION OF ANONYMOUS PUBLICATIONS WITH REFERENCE TO POLITICAL
CANDIDATES.  (FN2)  WHILE THESE STATUTES ARE LEVELED AT POLITICAL
CAMPAIGN AND ELECTION PRACTICES, THE UNDERLYING GROUND SUSTAINING THEIR
VALIDITY APPLIES WITH EQUAL FORCE HERE. 

NO CIVIL RIGHT HAS A GREATER CLAIM TO CONSTITUTIONAL PROTECTION OR
CALLS FOR MORE RIGOROUS SAFEGUARDING THAN VOTING RIGHTS.  IN THIS AREA
THE DANGER OF COERCION AND REPRISALS - ECONOMIC AND OTHERWISE - IS A
MATTER OF COMMON KNOWLEDGE.  YET THESE STATUTES, DISALLOWING ANONYMITY
IN PROMOTING ONE'S VIEWS IN ELECTION CAMPAIGNS, HAVE EXPRESSED THE
OVERWHELMING PUBLIC POLICY OF THE NATION.  NEVERTHELESS THE COURT IS
SILENT ABOUT THIS IMPRESSIVE AUTHORITY RELEVANT TO THE DISPOSITION OF
THIS CASE. 

ALL THREE OF THE TYPES OF STATUTES MENTIONED ARE DESIGNED TO PREVENT
THE SAME ABUSES - LIBEL, SLANDER, FALSE ACCUSATIONS, ETC.  THE FACT
THAT SOME OF THESE STATUTES ARE AIMED AT ELECTIONS, LOBBYING, AND THE
MAILS MAKES THEIR RESTRAINT NO MORE PALATABLE, NOR THE ABUSES THEY
PREVENT LESS DELETERIOUS TO THE PUBLIC INTEREST, THAN THE PRESENT
ORDINANCE. 

ALL THAT LOS ANGELES REQUIRES IS THAT ONE WHO EXERCISES HIS RIGHT OF
FREE SPEECH THROUGH WRITING OR DISTRIBUTING HANDBILLS IDENTIFY HIMSELF
JUST AS DOES ONE WHO SPEAKS FROM THE PLATFORM.  THE ORDINANCE MAKES FOR
THE RESPONSIBILITY IN WRITING THAT IS PRESENT IN PUBLIC UTTERANCE. 
WHEN AND IF THE APPLICATION OF SUCH AN ORDINANCE IN A GIVEN CASE
ENCROACHES ON FIRST AMENDMENT FREEDOMS, THEN WILL BE SOON ENOUGH TO
STRIKE THAT APPLICATION DOWN.  BUT NO SUCH RESTRAINT HAS BEEN SHOWN
HERE.  AFTER ALL, THE PUBLIC HAS SOME RIGHTS AGAINST WHICH THE
ENFORCEMENT OF FREEDOM OF SPEECH WOULD BE "HARSH AND ARBITRARY IN
ITSELF."  KOVACS V. COOPER, 336 U.S. 77, 88 (1949).  WE HAVE UPHELD
COMPLETE PROSCRIPTION OF UNINVITED DOOR-TO-DOOR CANVASSING AS AN
INVASION OF PRIVACY.  BREARD V. ALEXANDRIA, 341 U.S. 622 (1951).  IS
THIS LESS RESTRICTIVE THAN COMPLETE FREEDOM OF DISTRIBUTION -
REGARDLESS OF CONTENT - OF A SIGNED HANDBILL?  AND COMMERICAL HANDBILLS
MAY BE DECLARED VERBOTEN, VALENTINE V. CHRESTENSEN, 316 U.S. 52 (1942),
REGARDLESS OF CONTENT OR IDENTIFICATION.  IS TALLEY'S ANONYMOUS
HANDBILL, DESIGNED TO DESTROY THE BUSINESS OF A COMMERCIAL
ESTABLISHMENT, PASSED OUT AT ITS VERY FRONT DOOR, AND ATTACKING ITS
THEN LAWFUL COMMERCIAL PRACTICES, MORE COMPORTABLE WITH FIRST AMENDMENT
FREEDOMS?  I THINK NOT.  BEFORE WE MAY EXPECT INTERNATIONAL
RESPONSIBILITY AMONG NATIONS, MIGHT NOT IT BE WELL TO REQUIRE
INDIVIDUAL RESPONSIBILITY AT HOME?  LOS ANGELES' ORDINANCE DOES NO
MORE. 

CONTRARY TO PETITIONER'S CONTENTION, THE ORDINANCE AS APPLIED DOES
NOT ARBITRARILY DEPRIVE HIM OF EQUAL PROTECTION OF THE LAW.  HE
COMPLAINS THAT HANDBILLS ARE SINGLED OUT, WHILE OTHER PRINTED MEDIA -
BOOKS, MAGAZINES, AND NEWSPAPERS - REMAIN UNRESTRAINED.  HOWEVER, "THE
PROBLEM OF LEGISLATIVE CLASSIFICATION IS A PERENNIAL ONE, ADMITTING OF
NO DOCTRINAIRE DEFINITION.  EVILS IN THE SAME FIELD MAY BE OF DIFFERENT
DIMENSIONS AND PROPORTIONS, REQUIRING DIFFERENT REMEDIES  ...  .  OR
THE REFORM MAY TAKE ONE STEP AT A TIME, ADDRESSING ITSELF TO THE PHASE
OF THE PROBLEM WHICH SEEMS MOST ACUTE TO THE LEGISLATIVE MIND  ...  .
THE PROHIBITION OF THE EQUAL PROTECTION CLAUSE GOES NO FURTHER THAN THE
INVIDIOUS DISCRIMINATION.  I CANNOT SAY THAT THAT POINT HAS BEEN
REACHED HERE."  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489
(1955). 

I DISSENT. 

FN1  "WHEN IT IS SHOWN THAT STATE ACTION THREATENS SIGNIFICANTLY TO
IMPINGE UPON CONSTITUTIONALLY PROTECTED FREEDOM IT BECOMES THE DUTY OF
THIS COURT TO DETERMINE WHETHER THE ACTION BEARS A REASONABLE
RELATIONSHIP TO THE ACHIEVEMENT OF THE GOVERNMENTAL PURPOSE ASSERTED AS
ITS JUSTIFICATION."  361 U.S., AT 525. 

FN2  THIRTY-SIX STATES HAVE STATUTES PROHIBITING THE ANONYMOUS
DISTRIBUTION OF MATERIALS RELATING TO ELECTIONS.  E.G.:  KAN. GEN.
STAT., 1949, SEC. 25-1714; MINN. STAT. ANN. SEC.  211.08; PAGE'S OHIO
REV. CODE ANN. SEC. 3599.09; PURDON'S PA. STAT. ANN., TITLE 25, SEC.
3546. 
..END :




FLORIDA LIME GROWERS V. JACOBSEN 362 U.S. 73 


NO. 49.  ARGUED DECEMBER 9-10, 1959 - DECIDED MARCH 7, 1960 - 169 F.
SUPP. 774, REVERSED. 


APPELLANTS, WHO ARE ENGAGED IN THE BUSINESS OF GROWING, PACKING AND
MARKETING FLORIDA AVOCADOS IN INTERSTATE COMMERCE, SUED IN A FEDERAL
DISTRICT COURT TO ENJOIN APPELLEES, STATE OFFICERS OF CALIFORNIA, FROM
ENFORCING SEC. 792 OF THE CALIFORNIA AGRICULTURAL CODE, WHICH PROHIBITS
THE IMPORTATION OR SALE IN CALIFORNIA OF AVOCADOS CONTAINING LESS THAN
8% OF OIL BY WEIGHT.  APPELLANTS CLAIMED THAT SEC. 792 VIOLATED THE
COMMERCE AND EQUAL PROTECTION CLAUSES OF THE FEDERAL CONSTITUTION AS
WELL AS THE FEDERAL AGRICULTURAL MARKETING AGREEMENT ACT OF 1937 AND
FLORIDA AVOCADO ORDER NO. 69 ISSUED THEREUNDER.  A THREE-JUDGE DISTRICT
COURT CONVENED TO HEAR THE CASE DISMISSED THE ACTION, AND A DIRECT
APPEAL WAS TAKEN TO THIS COURT.  HELD: 

1.  SINCE THE COMPLAINT SOUGHT AN INJUNCTION AGAINST ENFORCEMENT OF
THE STATE STATUTE ON GROUNDS OF FEDERAL UNCONSTITUTIONALITY, THE ACTION
WAS REQUIRED TO BE HEARD BY A THREE-JUDGE DISTRICT COURT UNDER 28
U.S.C. SEC. 2281, AND THIS COURT HAS JURISDICTION OF THIS DIRECT APPEAL
UNDER 28 U.S.C. SEC. 1253 - NOTWITHSTANDING THE FACT THAT THE COMPLAINT
ALSO ALLEGED THAT THE STATE STATUTE CONFLICTED WITH THE FEDERAL ACT. 
PP. 75-85. 

2.  IN VIEW OF THE ALLEGATION OF THE COMPLAINT THAT APPELLANTS HAVE
MADE MORE THAN A SCORE OF SHIPMENTS OF FLORIDA AVOCADOS TO CALIFORNIA
AND THAT APPELLEES HAVE CONSISTENTLY CONDEMNED THEM FOR FAILURE TO
CONTAIN 8% OR MORE OF OIL BY WEIGHT, THUS FORCING APPELLANTS TO RESHIP
THEM AND SELL THEM IN OTHER STATES TO PREVENT THEIR DESTRUCTION AND
COMPLETE LOSS, THERE IS AN EXISTING DISPUTE BETWEEN THE PARTIES AS TO
PRESENT LEGAL RIGHTS AMOUNTING TO A JUSTICIABLE CONTROVERSY; AND THE
FACT THAT APPELLANTS DID NOT CONTEST THE VALIDITY OF SEC. 792 OR SEEK
ABATEMENT OF APPELLEES' CONDEMNATION OF THE AVOCADOS IN CALIFORNIA
STATE COURTS DOES NOT BAR THEIR RIGHT TO SEEK AN INJUNCTION IN THE
FEDERAL COURTS AGAINST ITS ENFORCEMENT ON THE GROUND THAT IT VIOLATES
BOTH THE FEDERAL CONSTITUTION AND THE FEDERAL AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937.  PP. 85-86. 

FLORIDA LIME AND AVOCADO GROWERS, INC., ET AL. V. JACOBSEN, DIRECTOR OF
THE DEPARTMENT OF AGRICULTURE OF CALIFORNIA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, ENGAGED IN THE BUSINESS OF GROWING, PACKING, AND
MARKETING IN COMMERCE, FLORIDA AVOCADOS, BROUGHT THIS ACTION IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
CALIFORNIA TO ENJOIN RESPONDENTS, STATE OFFICERS OF CALIFORNIA, FROM
ENFORCING SEC. 792 OF THE CALIFORNIA AGRICULTURAL CODE.  (FN1) 

SALE IN CALIFORNIA OF AVOCADOS CONTAINING "LESS THAN 8 PER CENT OF OIL,
BY WEIGHT OF THE AVOCADO EXCLUDING THE SKIN AND SEED."  THE COMPLAINT
ALLEGED, INTER ALIA, THAT THE VARIETIES OF AVOCADOS GROWN IN FLORIDA DO
NOT NORMALLY, OR AT LEAST NOT UNIFORMLY, CONTAIN AT MATURITY AS MUCH AS
8% OF OIL BY WEIGHT; THAT IN EACH YEAR SINCE 1954 APPELLANTS HAVE
SHIPPED IN INTERSTATE COMMERCE, IN FULL COMPLIANCE WITH THE FEDERAL
AGRICULTURAL MARKETING AGREEMENT ACT OF 1937 (FN2) AND FLORIDA AVOCADO
ORDER NO. 69 ISSUED UNDER THAT ACT BY THE SECRETARY OF AGRICULTURE ON
JUNE 11, 1954, FLORIDA AVOCADOS INTO THE STATE OF CALIFORNIA AND HAVE
ATTEMPTED TO SELL THEM THERE; THAT APPELLEES, OR THEIR AGENTS, HAVE
CONSISTENTLY BARRED THE SALE OF APPELLANTS' AVOCADOS IN CALIFORNIA FOR
FAILURE UNIFORMLY TO CONTAIN NOT LESS THAN 8% OF OIL BY WEIGHT,
RESULTING IN DENIAL TO APPELLANTS OF ACCESS TO THE CALIFORNIA MARKET,
AND FORCING RESHIPMENT OF THE AVOCADOS TO AND THEIR SALE IN OTHER
STATES, TO THE INJURY OF APPELLANTS, ALL IN VIOLATION OF THE COMMERCE
AND EQUAL PROTECTION CLAUSES OF THE UNITED STATES CONSTITUTION, AS WELL
AS OF THE FEDERAL AGRICULTURAL MARKETING AGREEMENT ACT OF 1937 AND
FLORIDA AVOCADO ORDER NO. 69 ISSUED THEREUNDER. 

INASMUCH AS THE COMPLAINT ALLEGED FEDERAL UNCONSTITUTIONALITY OF THE
CALIFORNIA STATUTE, APPELLANTS REQUESTED THE CONVENING OF, AND THERE
WAS CONVENED, A THREE-JUDGE DISTRICT COURT PURSUANT TO 28 U.S.C. SEC.
2281 TO HEAR THE CASE.  AFTER HEARING, THE COURT CONCLUDED THAT,
BECAUSE APPELLANTS HAD NOT CONTESTED THE VALIDITY OF SEC. 792 NOR
SOUGHT ABATEMENT OF APPELLEES' CONDEMNATION OF THE AVOCADOS IN THE
CALIFORNIA STATE COURTS, THE CASE PRESENTED "NO MORE THAN A MERE
PROSPECT OF INTERFERENCE POSED BY THE BARE EXISTENCE OF THE LAW IN
QUESTION," AND THAT IT HAD "NO AUTHORITY TO TAKE JURISDICTION AND WAS
LEFT WITH NO COURSE OTHER THAN TO DISMISS THE ACTION," WHICH IT DID. 
169 F. SUPP. 774, 776.  APPELLANTS BROUGHT THE CASE HERE ON DIRECT
APPEAL UNDER 28 U.S.C. SEC. 1253, AND WE POSTPONED THE QUESTION OF OUR
JURISDICTION TO THE HEARING ON THE MERITS.  360 U.S. 915. 

THE FIRST AND PRINCIPAL QUESTION PRESENTED IS WHETHER THIS ACTION IS
ONE REQUIRED BY SEC. 2281 TO BE HEARD BY A DISTRICT COURT OF THREE
JUDGES AND, HENCE, WHETHER WE HAVE JURISDICTION OF THIS DIRECT APPEAL
UNDER SEC. 1253. 

ENFORCEMENT OF A STATE STATUTE MAY NOT BE GRANTED UPON THE GROUND OF
UNCONSTITUTIONALITY OF SUCH STATUTE "UNLESS THE APPLICATION THEREFOR IS
HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES  ...  ," AND
SEC. 1253 PROVIDES (FN4) THAT ANY ORDER, GRANTING OR DENYING AN
INJUNCTION IN ANY CIVIL ACTION REQUIRED BY ANY ACT OF CONGRESS TO BE
HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES, MAY BE
APPEALED DIRECTLY TO THIS COURT. 

APPELLEES CONCEDE THAT IF THE COMPLAINT HAD ATTACKED SEC. 792 SOLELY
ON THE GROUND OF CONFLICT WITH THE UNITED STATES CONSTITUTION, THE
ACTION WOULD HAVE BEEN ONE REQUIRED BY SEC. 2281 TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES.  BUT APPELLEES CONTEND
THAT BECAUSE THE COMPLAINT ALSO ATTACKS SEC. 792 ON THE GROUND OF
CONFLICT WITH THE FEDERAL AGRICULTURAL MARKETING AGREEMENT ACT OF 1937
AND THE SECRETARY'S FLORIDA AVOCADO ORDER NO. 69, IT IS POSSIBLE THAT
THE ACTION COULD BE DETERMINED ON THE STATUTORY RATHER THAN THE
CONSTITUTIONAL GROUND, AND, THEREFORE, THE ACTION WAS NOT REQUIRED TO
BE HEARD BY A DISTRICT COURT OF THREE JUDGES UNDER SEC. 2281 AND,
HENCE, A DIRECT APPEAL DOES NOT LIE TO THIS COURT UNDER SEC. 1253. 

INTENTION TO REQUIRE AN APPLICATION FOR AN INJUNCTION TO BE HEARD AND
DETERMINED BY A COURT OF THREE JUDGES IN ANY CASE IN WHICH THE
INJUNCTION MAY BE GRANTED ON GROUNDS OF FEDERAL UNCONSTITUTIONALITY. 
THE REASON FOR THIS IS QUITE CLEAR.  THE IMPETUS BEHIND THE FIRST THREE
JUDGE COURT STATUTE WAS THE DECISION IN EX PARTE YOUNG, 209 U.S. 123
(1908), IN WHICH IT WAS HELD THAT A FEDERAL COURT COULD ENJOIN A STATE
OFFICER FROM ENFORCING A STATE STATUTE ALLEGED TO BE UNCONSTITUTIONAL,
DESPITE THE PROHIBITION OF THE ELEVENTH AMENDMENT CONCERNING SUITS
AGAINST A STATE.  DEBATE WAS IMMEDIATELY LAUNCHED IN THE SENATE WITH
REGARD TO CUSHIONING THE IMPACT OF THE YOUNG CASE, THE PRINCIPAL
CONCERN BEING WITH THE POWER THUS ACTIVATED IN ONE FEDERAL JUDGE TO
ENJOIN THE OPERATION OR ENFORCEMENT OF STATE LEGISLATION ON GROUNDS OF
FEDERAL UNCONSTITUTIONALITY.  (FN5) 

THE RESULT OF THE DEBATES ON THIS SUBJECT WAS PASSAGE OF A THREE
JUDGE-COURT STATUTE IN 1910, 36 STAT. 557, WHICH WAS CODIFIED AS SEC.
266 OF THE JUDICIAL CODE, 36 STAT.  1162.  (FN6)  THIS STATUTE
PROHIBITED THE GRANTING OF AN INTERLOCUTORY INJUNCTION AGAINST A STATE
STATUTE UPON GROUNDS OF FEDERAL UNCONSTITUTIONALITY UNLESS THE
APPLICATION FOR INJUNCTION WAS HEARD AND DETERMINED BY A COURT OF THREE
JUDGES.  THE STATUTE ALSO CONTAINED ITS OWN PROVISION FOR DIRECT APPEAL
TO THIS COURT FROM AN ORDER GRANTING OR DENYING AN INTERLOCUTORY
INJUNCTION.  THE OBJECTIVE OF SEC. 266 WAS CLEARLY ARTICULATED BY MR.
CHIEF JUSTICE TAFT IN CUMBERLAND TELEPHONE & TELEGRAPH CO. V. LOUISIANA
PUBLIC SERVICE COMM'N, 260 U.S. 212: 

"THE LEGISLATION WAS ENACTED FOR THE MANIFEST PURPOSE OF TAKING AWAY
THE POWER OF A SINGLE UNITED STATES JUDGE, WHETHER DISTRICT JUDGE,
CIRCUIT JUDGE OR CIRCUIT JUSTICE HOLDING A DISTRICT COURT OF THE UNITED
STATES, TO ISSUE AN INTERLOCUTORY INJUNCTION AGAINST THE EXECUTION OF A
STATE STATUTE BY A STATE OFFICER OR OF AN ORDER OF AN ADMINISTRATIVE
BOARD OF THE STATE PURSUANT TO A STATE STATUTE, ON THE GROUND OF THE
FEDERAL UNCONSTITUTIONALITY OF THE STATUTE.  PENDING THE APPLICATION
FOR AN INTERLOCUTORY INJUNCTION, A SINGLE JUDGE MAY GRANT A RESTRAINING
ORDER TO BE IN FORCE UNTIL THE HEARING OF THE APPLICATION, BUT
THEREAFTER, SO FAR AS ENJOINING THE STATE OFFICERS, HIS POWER IS
EXHAUSTED.  THE WORDING OF THE SECTION LEAVES NO DOUBT THAT CONGRESS
WAS BY PROVISIONS EX INDUSTRIA SEEKING TO MAKE INTERFERENCE BY
INTERLOCUTORY INJUNCTION FROM A FEDERAL COURT WITH THE ENFORCEMENT OF
STATE LEGISLATION, REGULARLY ENACTED AND IN COURSE OF EXECUTION, A
MATTER OF THE ADEQUATE HEARING AND THE FULL DELIBERATION WHICH THE
PRESENCE OF THREE JUDGES, ONE OF WHOM SHOULD BE A CIRCUIT JUSTICE OR
JUDGE, WAS LIKELY TO SECURE.  IT WAS TO PREVENT THE IMPROVIDENT
GRANTING OF SUCH INJUNCTIONS BY A SINGLE JUDGE, AND THE POSSIBLE
UNNECESSARY CONFLICT BETWEEN FEDERAL AND STATE AUTHORITY ALWAYS TO BE
DEPRECATED."  260 U.S., AT 216. 

IN 1925, SEC. 266 WAS AMENDED TO REQUIRE A THREE-JUDGE COURT FOR
ISSUANCE OF A PERMANENT AS WELL AS AN INTERLOCUTORY INJUNCTION, AND
SEC. 238 OF THE JUDICIAL CODE (A BROAD STATUTE GOVERNING DIRECT APPEALS
TO THIS COURT FROM DISTRICT COURTS) WAS AMENDED, SO FAR AS HERE
PERTINENT, TO INCORPORATE THE PROVISION FOR DIRECT APPEALS TO THIS
COURT FROM THE ORDERS OF THREE-JUDGE COURTS GRANTING OR DENYING AN
INJUNCTION IN A SEC. 266 CASE.  43 STAT. 938.  SUCH IS THE PRESENT
SCHEME OF SECS. 2281 AND 1253. 

WITH THIS BACKGROUND, IT SEEMS ENTIRELY CLEAR THAT THE CENTRAL
CONCERN OF CONGRESS IN 1910 WAS TO PREVENT ONE FEDERAL JUDGE FROM
GRANTING AN INTERLOCUTORY INJUNCTION AGAINST STATE LEGISLATION ON
GROUNDS OF FEDERAL UNCONSTITUTIONALITY.  AND THE 1925 AMENDMENT
REQUIRING A COURT OF THREE JUDGES FOR ISSUANCE OF A PERMANENT AS WELL
AS AN INTERLOCUTORY INJUNCTION "WAS DESIGNED TO END THE ANOMALOUS
SITUATION IN WHICH A SINGLE JUDGE MIGHT RECONSIDER AND DECIDE QUESTIONS
ALREADY PASSED UPON BY THREE JUDGES ON THE APPLICATION FOR AN
INTERLOCUTORY INJUNCTION."  STRATTON V. ST. LOUIS SOUTHWESTERN R. CO.,
282 U.S. 10, 14.  SECTION 2281, READ IN THE LIGHT OF THIS BACKGROUND,
SEEMS CLEARLY TO REQUIRE THAT WHEN, IN ANY ACTION TO ENJOIN ENFORCEMENT
OF A STATE STATUTE, THE INJUNCTIVE DECREE MAY ISSUE ON THE GROUND OF
FEDERAL UNCONSTITUTIONALITY OF THE STATE STATUTE, THE CONVENING OF A
THREE-JUDGE COURT IS NECESSARY; AND THE JOINING IN THE COMPLAINT OF A
NONCONSTITUTIONAL ATTACK ALONG WITH THE CONSTITUTIONAL ONE DOES NOT
DISPENSE WITH THE NECESSITY TO CONVENE SUCH A COURT.  TO HOLD TO THE
CONTRARY WOULD BE TO PERMIT ONE FEDERAL DISTRICT JUDGE TO ENJOIN
ENFORCEMENT OF A STATE STATUTE ON THE GROUND OF FEDERAL
UNCONSTITUTIONALITY WHENEVER A NONCONSTITUTIONAL GROUND OF ATTACK WAS
ALSO ALLEGED, AND THIS MIGHT WELL DEFEAT THE PURPOSE OF SEC. 2281. 

CASES IN THIS COURT SINCE LOUISVILLE & NASHVILLE R. CO. V. GARRETT,
231 U.S. 298 (1913), HAVE CONSISTENTLY ADHERED TO THE VIEW THAT, IN AN
INJUNCTION ACTION CHALLENGING A STATE STATUTE ON SUBSTANTIAL FEDERAL
CONSTITUTIONAL GROUNDS, A THREE-JUDGE COURT IS REQUIRED TO BE CONVENED
AND HAS - JUST AS WE HAVE ON A DIRECT APPEAL FROM ITS ACTION -
JURISDICTION OVER ALL CLAIMS RAISED AGAINST THE STATUTE.  (FN7)  THESE
CASES REPRESENT AN UNMISTAKABLE RECOGNITION OF THE CONGRESSIONAL POLICY
TO PROVIDE FOR A THREE-JUDGE COURT WHENEVER A STATE STATUTE IS SOUGHT
TO BE ENJOINED ON GROUNDS OF FEDERAL UNCONSTITUTIONALITY, AND THIS
CONSIDERATION MUST BE CONTROLLING.  (FN8) 

APPELLEES PLACE SOME RELIANCE ON EX PARTE BUDER, 271 U.S. 461, AND
LEMKE V. FARMERS GRAIN CO., 258 U.S. 50 (LEMKE I), IN SUPPORT OF THEIR
POSITION.  BUDER HELD MERELY THAT A CLAIM OF CONFLICT BETWEEN A STATE
STATUTE AND A FEDERAL STATUTE WAS NOT A CONSTITUTIONAL CLAIM REQUIRING
THE CONVENING OF A THREE-JUDGE COURT UNDER SEC. 266, AND THUS THERE
COULD BE NO DIRECT APPEAL HERE.  BUDER DID NOT, HOWEVER, REQUIRE THAT A
CONSTITUTIONAL CLAIM BE THE SOLE CLAIM BEFORE THE THREE-JUDGE COURT. 
LEMKE I HELD THAT IT WAS PERMISSIBLE TO APPEAL TO THE COURT OF APPEALS
RATHER THAN DIRECTLY TO THIS COURT FROM THE FINAL ORDER OF A SINGLE
DISTRICT JUDGE IN A CASE IN WHICH A STATE STATUTE WAS ATTACKED ON THE
GROUNDS THAT IT WAS BOTH UNCONSTITUTIONAL AND IN CONFLICT WITH A
FEDERAL STATUTE.  THE CASE WAS DECIDED UNDER SEC. 238, WHICH, UNTIL
1925, WAS A BROAD STATUTE CALLING FOR A DIRECT APPEAL TO THIS COURT
FROM THE ACTION OF A DISTRICT COURT "IN ANY CASE THAT INVOLVES THE
CONSTRUCTION OR APPLICATION OF THE CONSTITUTION OF THE UNITED STATES
...  AND IN ANY CASE IN WHICH THE CONSTITUTION OR LAW OF A STATE IS
CLAIMED TO BE IN CONTRAVENTION OF THE CONSTITUTION OF THE UNITED
STATES."  THE BREADTH OF SEC. 238 HAD LED THE COURT ON SEVERAL
OCCASIONS TO CONSTRUE THIS PROVISION TO MEAN THAT A DIRECT APPEAL TO
THIS COURT WAS REQUIRED ONLY WHEN THE SOLE GROUND OF DISTRICT COURT
JURISDICTION WAS THE FEDERAL CONSTITUTIONAL CLAIM INVOLVED, UNION &
PLANTERS' BANK V. MEMPHIS, 189 U.S. 71, 73; CAROLINA GLASS CO. V. SOUTH
CAROLINA, 240 U.S. 305, 318, BUT IF JURISDICTION WAS BASED BOTH ON A
CONSTITUTIONAL GROUND AND SOME OTHER FEDERAL GROUND THE APPEAL MIGHT
PROPERLY BE TAKEN EITHER TO THIS COURT OR TO THE COURT OF APPEALS. 
SPRECKELS SUGAR REFINING CO. V. MCCLAIN, 192 U.S. 397, 407-408;
MACFADDEN V. UNITED STATES, 213 U.S. 288, 293.  LEMKE I, DECIDED IN
1922, MERELY FOLLOWED THIS LINE OF DECISIONS, AND WAS NOT IN ANY WAY
CONCERNED WITH A DIRECT APPEAL TO THIS COURT UNDER SEC. 266 FROM THE
ORDER OF A THREE-JUDGE COURT - THE QUESTION NOW BEFORE US. 

THE DISTINCTION BETWEEN THE SCOPE OF OUR DIRECT APPELLATE
JURISDICTION UNDER SEC. 238 AND SEC. 266 PRIOR TO 1925 WAS EFFECTIVELY
ILLUSTRATED BY THE DIFFERING COURSE OF EVENTS IN LEMKE I AND LEMKE V.
HOMER FARMERS ELEVATOR CO., 258 U.S. 65 (LEMKE II).  BOTH CASES
INVOLVED AN ATTACK ON A STATE STATUTE ON GROUNDS OF FEDERAL
UNCONSTITUTIONALITY AND CONFLICT WITH A FEDERAL STATUTE.  IN BOTH,
INTERLOCUTORY INJUNCTIONS WERE SOUGHT BEFORE THREE-JUDGE COURTS, AND
THE INJUNCTIONS WERE GRANTED.  LEMKE I, HOWEVER, ALSO SOUGHT A
PERMANENT INJUNCTION BEFORE A SINGLE DISTRICT JUDGE, AND, FROM HIS
ORDER DENYING THE INJUNCTION, THE CASE WAS APPEALED TO THE COURT OF
APPEALS BEFORE COMING HERE.  LEMKE II, ON THE OTHER HAND, WAS DIRECTLY
APPEALED TO THIS COURT UNDER SEC. 266 FROM THE INTERLOCUTORY ORDER OF
THE THREE-JUDGE COURT.  AS INDICATED, THIS COURT HELD THAT THE FINAL
ORDER OF THE SINGLE JUDGE IN LEMKE I WAS PROPERLY APPEALED TO THE COURT
OF APPEALS UNDER SEC. 238 BECAUSE OF THE ADDITIONAL NONCONSTITUTIONAL
BASIS FOR DISTRICT COURT JURISDICTION.  BUT IN LEMKE II THIS COURT TOOK
JURISDICTION OVER ALL ISSUES PRESENTED IN THE DIRECT APPEAL UNDER SEC.
266 FROM THE INTERLOCUTORY ORDER OF THE THREE-JUDGE COURT.  SEE ALSO
SHAFER V. FARMERS GRAIN CO., 268 U.S. 189, A CASE VIRTUALLY IDENTICAL
WITH LEMKE II, IN WHICH THIS COURT ALSO TOOK JURISDICTION OVER ALL
QUESTIONS IN A SEC. 266 DIRECT APPEAL FROM AN INTERLOCUTORY INJUNCTION
GRANTED BY A THREE-JUDGE COURT.    THE PROBLEM WAS GREATLY SIMPLIFIED
IN 1925 WHEN SEC. 266 WAS AMENDED TO REQUIRE THREE-JUDGE COURTS FOR THE
GRANTING OF BOTH INTERLOCUTORY AND PREMANENT INJUNCTIONS ON GROUNDS OF
FEDERAL UNCONSTITUTIONALITY, AND SEC. 238, WHILE SUBSTANTIALLY AMENDED
TO REDUCE THE SCOPE OF OUR GENERAL APPELLATE JURISDICTION, SO FAR AS
HERE PERTINENT, MERELY INCORPORATED THE PROVISION FOR DIRECT APPEALS TO
THIS COURT FROM INJUNCTIONS GRANTED OR DENIED UNDER SEC. 266.  WE DO
NOT FIND IN THESE AMENDMENTS ANY INTENTION TO CURTAIL EITHER THE
JURISDICTION OF THREE-JUDGE COURTS OR OUR JURISDICTION ON DIRECT APPEAL
FROM THEIR ORDERS.  INDEED, THE CASES SINCE 1925 HAVE CONTINUED TO
MAINTAIN THE VIEW THAT IF THE CONSTITUTIONAL CLAIM AGAINST THE STATE
STATUTE IS SUBSTANTIAL, A THREE-JUDGE COURT IS REQUIRED TO BE CONVENED
AND HAS JURISDICTION, AS DO WE ON DIRECT APPEAL, OVER ALL GROUNDS OF
ATTACK AGAINST THE STATUTE.  E.G., STERLING V. CONSTANTIN, 287 U.S.
378, 393-394; RAILROAD COMM'N OF CALIFORNIA V. PACIFIC GAS & ELECTRIC
CO., 302 U.S. 388, 391; PUBLIC SERVICE COMM'N V. BRASHEAR FREIGHT
LINES, 312 U.S. 621, 625, N.5. 

TO HOLD THAT ONLY ONE JUDGE MAY HEAR AND DECIDE AN ACTION TO ENJOIN
THE ENFORCEMENT OF A STATE STATUTE ON BOTH CONSTITUTIONAL AND
NONCONSTITUTIONAL GROUNDS WOULD BE TO IGNORE THE EXPLICIT LANGUAGE AND
MANIFEST PURPOSE OF SEC. 2281, WHICH IS TO PROVIDE FOR A THREE-JUDGE
COURT WHENEVER AN INJUNCTION SOUGHT AGAINST A STATE STATUTE MAY BE
GRANTED ON FEDERAL CONSTITUTIONAL GROUNDS.  WHERE A COMPLAINT SEEKS TO
ENJOIN A STATE STATUTE ON SUBSTANTIAL GROUNDS OF FEDERAL
UNCONSTITUTIONALITY, THEN EVEN THOUGH NONCONSTITUTIONAL GROUNDS OF
ATTACK ARE ALSO ALLEGED, WE THINK THE CASE IS ONE THAT IS "REQUIRED BY
...  ACT OF CONGRESS TO BE HEARD AND DETERMINED BY A DISTRICT COURT OF
THREE JUDGES."  28 U.S.C.  SEC. 1253.  WE, THEREFORE, HOLD THAT WE HAVE
JURISDICTION OF THIS DIRECT APPEAL. 

WE TURN NOW TO THE MERITS.  THE COURT IS OF THE VIEW THAT THE
DISTRICT COURT WAS IN ERROR IN HOLDING THAT, BECAUSE APPELLANTS HAD NOT
CONTESTED THE VALIDITY OF SEC. 792 NOR SOUGHT ABATEMENT OF APPELLEES'
CONDEMNATION OF THEIR AVOCADOS, THERE WAS NO "EXISTING DISPUTE AS TO
PRESENT LEGAL RIGHTS," BUT ONLY "A MERE PROSPECT OF INTERFERENCE POSED
BY THE BARE EXISTENCE OF THE LAW IN QUESTION (SEC. 792)," AND IN
ACCORDINGLY DISMISSING THE ACTION FOR WANT OF JURISDICTION.  AS EARLIER
STATED, THE COMPLAINT ALLEGES THAT, SINCE THE ISSUANCE OF THE
SECRETARY'S FLORIDA AVOCADO ORDER NO. 69 IN 1954, APPELLANTS HAVE MADE
MORE THAN A SCORE OF SHIPMENTS IN INTERSTATE COMMERCE OF FLORIDA
AVOCADOS TO AND FOR SALE IN CALIFORNIA, AND APPELLEES, OR THEIR AGENTS,
HAVE IN EFFECT CONSISTENTLY CONDEMNED THOSE AVOCADOS FOR FAILURE TO
CONTAIN 8% OR MORE OF OIL BY WEIGHT, THUS REQUIRING APPELLANTS - TO
PREVENT DESTRUCTION AND COMPLETE LOSS OF THEIR SHIPMENTS - TO RESHIP
THE AVOCADOS TO AND SELL THEM IN OTHER STATES, ALL IN VIOLATION OF THE
COMMERCE AND EQUAL PROTECTION CLAUSES OF THE UNITED STATES CONSTITUTION
AS WELL AS THE MARKETING AGREEMENT ACT OF 1937.  IT IS THEREFORE
EVIDENT THAT THERE IS AN EXISTING DISPUTE BETWEEN THE PARTIES AS TO
PRESENT LEGAL RIGHTS AMOUNTING TO A JUSTICIABLE CONTROVERSY WHICH
APPELLANTS ARE ENTITLED TO HAVE DETERMINED ON THE MERITS.  IN THESE
CIRCUMSTANCES, THE FACT THAT APPELLANTS DID NOT CONTEST THE VALIDITY OF
SEC. 792 NOR SEEK ABATEMENT OF APPELLEES' CONDEMNATION OF THE AVOCADOS
IN THE CALIFORNIA STATE COURTS - WHICH, BECAUSE OF THE TIME PERIOD
NECESSARILY INVOLVED, WOULD HAVE RESULTED IN THE COMPLETE SPOILAGE AND
LOSS OF THE PRODUCT - DOES NOT CONSTITUTE AN IMPEDIMENT TO THEIR RIGHT
TO SEEK AN INJUNCTION IN THE FEDERAL COURT AGAINST ENFORCEMENT OF SEC.
792 ON THE GROUND THAT IT VIOLATES BOTH THE CONSTITUTION OF THE UNITED
STATES AND THE FEDERAL AGRICULTURAL MARKETING AGREEMENT ACT OF 1937. 

THE JUDGMENT IS THEREFORE REVERSED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  DEERING'S AGRICULTURAL CODE OF THE STATE OF CALIFORNIA, 1950; C.
2, DIV. 5, OF WEST'S ANN. CALIFORNIA AGRICULTURAL CODE. 

FN2  50 STAT. 246, 7 U.S.C. SEC. 601 ET SEQ. 

FN3  28 U.S.C. SEC. 2281 PROVIDES: 

"AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE
ENFORCEMENT, OPERATION OR EXECUTION OF ANY STATE STATUTE BY RESTRAINING
THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION
OF SUCH STATUTE OR OF AN ORDER MADE BY AN ADMINISTRATIVE BOARD OR
COMMISSION ACTING UNDER STATE STATUTES, SHALL NOT BE GRANTED BY ANY
DISTRICT COURT OR JUDGE THEREOF UPON THE GROUND OF THE
UNCONSTITUTIONALITY OF SUCH STATUTE UNLESS THE APPLICATION THEREFOR IS
HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES UNDER SECTION
2284 OF THIS TITLE." 

FN4  28 U.S.C. SEC. 1253 PROVIDES: 

"EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO THE
SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION,
SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

FN5  IN THE SENATE DEBATES SENATOR OVERMAN OF NORTH CAROLINA
COMMENTED AS FOLLOWS: 

"THIS MEASURE PROPOSES THAT WHENEVER A PETITION IS PRESENTED THE
CIRCUIT JUDGE BEFORE WHOM IT IS PRESENTED SHALL, BEFORE GRANTING THE
INJUNCTION, CALL IN ONE CIRCUIT JUDGE AND ONE DISTRICT JUDGE OR ANOTHER
CIRCUIT COURT JUDGE, MAKING THREE JUDGES WHO SHALL PASS UPON THE
QUESTION OF THE INJUNCTION. 

"WE THINK, SIR, THAT IF THIS COULD BE DONE IT WOULD ALLAY MUCH
INTENSE FEELING IN THE STATES.  AS WAS SAID BY MR. JUSTICE HARLAN, IN
HIS DISSENTING OPINION IN THE MINNESOTA CASE (EX PARTE YOUNG), WE HAVE
COME TO A SAD DAY WHEN ONE SUBORDINATE FEDERAL JUDGE CAN ENJOIN THE
OFFICER OF A SOVEREIGN STATE FROM PROCEEDING TO ENFORCE THE LAWS OF THE
STATE PASSED BY THE LEGISLATURE OF HIS OWN STATE, AND THEREBY
SUSPENDING FOR A TIME THE LAWS OF THE STATE  ...  .  THAT BEING SO,
THERE BEING GREAT FEELING AMONG THE PEOPLE OF THE STATES BY REASON OF
THE FACT THAT ONE FEDERAL JUDGE HAS TIED THE HANDS OF A SOVEREIGN STATE
AND ENJOINED IN THIS MANNER THE GREAT OFFICER WHO IS CHARGED WITH THE
ENFORCEMENT OF THE LAWS OF THE STATE, CAUSING ALMOST A REVOLUTION, AS
IT DID IN MY STATE, AND IN ORDER TO ALLAY THIS FEELING, IF THIS
SUBSTITUTE IS ADOPTED AND THREE JUDGES HAVE TO PASS UPON THE QUESTION
OF THE CONSTITUTIONALITY OF A STATE STATUTE AND THREE GREAT JUDGES SAY
THAT THE STATUTE IS UNCONSTITUTIONAL, THE OFFICERS OF THE STATE WILL BE
LESS INCLINED TO RESIST THE ORDERS AND DECREES OF OUR FEDERAL COURTS. 
THE PEOPLE AND THE COURTS OF THE STATE ARE MORE INCLINED TO ABIDE BY
THE DECISION OF THREE JUDGES THAN THEY WOULD OF ONE SUBORDINATE
INFERIOR FEDERAL JUDGE WHO SIMPLY UPON PETITION OR UPON A HEARING
SHOULD TIE THE HANDS OF A STATE OFFICER FROM PROCEEDING WITH THE
ENFORCEMENT OF THE LAWS OF HIS SOVEREIGN STATE  ...  ."  42 CONG. REC.
4847. 

AND SENATOR BACON OF GEORGIA REMARKED: 

"THE PURPOSE OF THE BILL IS TO THROW ADDITIONAL SAFEGUARDS AROUND THE
EXERCISE OF THE ENORMOUS POWERS CLAIMED FOR THE SUBORDINATE FEDERAL
COURTS.  IF THESE COURTS ARE TO EXERCISE THE POWER OF STOPPING THE
OPERATION OF THE LAWS OF A STATE AND OF PUNISHING THE OFFICERS OF A
STATE, THEN AT LEAST LET IT BE DONE ON NOTICE AND NOT HASTILY, AND LET
THERE BE THE JUDGMENT OF THREE JUDGES TO DECIDE SUCH QUESTIONS, AND NOT
PERMIT SUCH DANGEROUS POWER TO ONE MAN. 

"THE NECESSITY FOR THIS LEGISLATION IS A VERY GRAVE ONE.  IT IS A
MOST SERIOUS TROUBLE WHICH NOW EXISTS - THAT BY THE ACTION OF ONE JUDGE
THE MACHINERY OF STATE LAWS CAN BE ARRESTED  ...  ."  42 CONG. REC.
4853. 

FN6  SECTION 266 OF THE JUDICIAL CODE ORIGINALLY PROVIDED IN
PERTINENT PART: 

"NO INTERLOCUTORY INJUNCTION SUSPENDING OR RESTRAINING THE
ENFORCEMENT, OPERATION, OR EXECUTION OF ANY STATUTE OF A STATE BY
RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT
OR EXECUTION OF SUCH STATUTE, SHALL BE ISSUED OR GRANTED BY ANY JUSTICE
OF THE SUPREME COURT, OR BY ANY DISTRICT COURT OF THE UNITED STATES, OR
BY ANY JUDGE THEREOF, OR BY ANY CIRCUIT JUDGE ACTING AS DISTRICT JUDGE,
UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH STATUTE, UNLESS THE
APPLICATION FOR THE SAME SHALL BE PRESENTED TO A JUSTICE OF THE SUPREME
COURT OF THE UNITED STATES, OR TO A CIRCUIT OR DISTRICT JUDGE, AND
SHALL BE HEARD AND DETERMINED BY THREE JUDGES OF WHOM AT LEAST ONE
SHALL BE A JUSTICE OF THE SUPREME COURT, OR A CIRCUIT JUDGE, AND THE
OTHER TWO MAY BE EITHER CIRCUIT OR DISTRICT JUDGES, AND UNLESS A
MAJORITY OF SAID THREE JUDGES SHALL CONCUR IN GRANTING SUCH APPLICATION
...  .  AN APPEAL MAY BE TAKEN DIRECT TO THE SUPREME COURT OF THE
UNITED STATES FROM THE ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY INJUNCTION IN SUCH CASE."  36 STAT.  1162. 

FN7  SEE, E.G., VAN DYKE V. GEARY, 244 U.S. 39; CAVANAUGH V. LOONEY,
248 U.S. 453; LEMKE V. HOMER FARMERS ELEVATOR CO., 258 U.S. 65 (LEMKE
II); CHICAGO, GREAT WESTERN R. CO. V. KENDALL, 266 U.S. 94; SHAFER V.
FARMERS GRAIN CO., 268 U.S. 189; HERKNESS V. IRION, 278 U.S. 92;
STERLING V. CONSTANTIN, 287 U.S. 378; SPIELMAN MOTOR SALES CO. V.
DODGE, 295 U.S. 89; RAILROAD COMM'N OF CALIFORNIA V. PACIFIC GAS &
ELECTRIC CO., 302 U.S. 388; PUBLIC SERVICE COMM'N V. BRASHEAR FREIGHT
LINES, 312 U.S. 621; PARKER V. BROWN, 317 U.S. 341. 

IN THE GARRETT CASE, THE FOLLOWING OBSERVATIONS WERE MADE BY MR.
JUSTICE HUGHES: 

"BECAUSE OF THE FEDERAL QUESTIONS RAISED BY THE BILL THE CIRCUIT
(DISTRICT) COURT HAD JURISDICTION AND WAS AUTHORIZED TO DETERMINE ALL
THE QUESTIONS IN THE CASE, LOCAL AS WELL AS FEDERAL.  SILER V.
LOUISVILLE & NASHVILLE R.R., 213 U.S. 175, 191.  A SIMILAR RULE MUST BE
DEEMED TO GOVERN THE APPLICATION FOR PRELIMINARY INJUNCTION UNDER THE
STATUTE WHICH REQUIRES A HEARING BEFORE THREE JUDGES, AND AUTHORIZES AN
APPEAL TO THIS COURT.  36 STAT. 557.  THIS STATUTE APPLIES TO CASES IN
WHICH THE PRELIMINARY INJUNCTION IS SOUGHT IN ORDER TO RESTRAIN THE
ENFORCEMENT OF A STATE ENACTMENT UPON THE GROUND OF ITS
'UNCONSTITUTIONALITY.'  THE REFERENCE, UNDOUBTEDLY, IS TO AN ASSERTED
CONFLICT WITH THE FEDERAL CONSTITUTION, AND THE QUESTION OF
UNCONSTITUTIONALITY, IN THIS SENSE, MUST BE A SUBSTANTIAL ONE.  BUT,
WHERE SUCH A QUESTION IS PRESENTED, THE APPLICATION IS WITHIN THE
PROVISION, AND THIS BEING SO, IT CANNOT BE SUPPOSED THAT IT WAS THE
INTENTION OF CONGRESS TO COMPEL THE EXCLUSION OF OTHER GROUNDS AND THUS
TO REQUIRE A SEPARATE MOTION FOR PRELIMINARY INJUNCTION, AND A SEPARATE
HEARING AND APPEAL, WITH RESPECT TO THE LOCAL QUESTIONS WHICH ARE
INVOLVED IN THE CASE AND WOULD PROPERLY BE THE SUBJECT OF CONSIDERATION
IN DETERMINING THE PROPRIETY OF GRANTING AN INJUNCTION PENDING SUIT. 
THE LOCAL QUESTIONS ARISING UNDER THE STATE CONSTITUTION AND STATUTES
WERE THEREFORE BEFORE THE CIRCUIT (DISTRICT) COURT AND THE APPEAL
BRINGS THEM HERE."  231 U.S., AT 303-304. 

FN8  IN STERLING V. CONSTANTIN, 287 U.S. 378, FOR EXAMPLE, CERTAIN
STATE ADMINISTRATIVE ORDERS WERE SOUGHT TO BE ENJOINED ON THE GROUND
THAT THEY VIOLATED BOTH THE STATE AND FEDERAL CONSTITUTIONS.  THE
GOVERNOR OF THE STATE HAD DECLARED MARTIAL LAW IN AN EFFORT TO ENFORCE
THE ORDERS, AND HIS ACTION WAS ALSO CHALLENGED ON THE GROUND THAT ANY
STATUTE PURPORTING TO CONFER SUCH AUTHORITY ON HIM WAS IN VIOLATION OF
THE STATE AND FEDERAL CONSTITUTIONS.  WITH REGARD TO THE JURISDICTION
OF THE THREE-JUDGE COURT WHICH HAD BEEN CONVENED FOR THE PURPOSE OF
CONSIDERING AN APPLICATION FOR INJUNCTION, MR. CHIEF JUSTICE HUGHES
SAID: 

"AS THE VALIDITY OF PROVISIONS OF THE STATE CONSTITUTION AND
STATUTES, IF THEY COULD BE DEEMED TO AUTHORIZE THE ACTION OF THE
GOVERNOR, WAS CHALLENGED, THE APPLICATION FOR INJUNCTION WAS PROPERLY
HEARD BY THREE JUDGES.  STRATTON V. ST. LOUIS SOUTHWESTERN RY. CO., 282
U.S. 10.  THE JURISDICTION OF THE DISTRICT COURT SO CONSTITUTED, AND OF
THIS COURT UPON APPEAL, EXTENDS TO EVERY QUESTION INVOLVED, WHETHER OF
STATE OR FEDERAL LAW, AND ENABLES THE COURT TO REST ITS JUDGMENT ON THE
DECISION OF SUCH OF THE QUESTIONS AS IN ITS OPINION EFFECTIVELY DISPOSE
OF THE CASE."  287 U.S., AT 393-394. 

IN PHILLIPS V. UNITED STATES, 312 U.S. 246, IT WAS HELD THAT A SUIT
BY THE UNITED STATES TO ENJOIN THE ACTION OF A GOVERNOR IN INTERFERING
WITH THE CONSTRUCTION OF A STATE POWER PROJECT USING FEDERAL FUNDS WAS
NOT WITHIN SEC. 266 BECAUSE THE VALIDITY OF A STATE STATUTE OR ORDER
HAD NOT BEEN CHALLENGED.  STERLING V. CONSTANTIN WAS DISTINGUISHED ON
THE GROUND THAT IT INVOLVED AN ATTEMPT TO RESTRAIN THE ACTION OF A
GOVERNOR AS PART OF A MAIN OBJECTIVE TO ENJOIN EXECUTION OF CERTAIN
ADMINISTRATIVE ORDERS AS VIOLATIVE OF THE STATE AND FEDERAL
CONSTITUTIONS.  AS SUCH, STERLING WAS SAID TO HAVE BEEN "INDUBITABLY
WITHIN SEC. 266."  312 U.S., AT 253. 

MR. JUSTICE DOUGLAS JOINS IN THE PART OF THE OPINION THAT PASSES ON
THE MERITS, THE COURT HAVING HELD, CONTRARY TO HIS VIEW, THAT THE CASE
IS PROPERLY HERE ON DIRECT APPEAL FROM A THREE-JUDGE COURT. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE STATUTE PROVIDING FOR THREE-JUDGE FEDERAL DISTRICT COURTS, WITH
DIRECT APPEAL TO THIS COURT, IN CASES SEEKING INTERLOCUTORY INJUNCTIONS
AGAINST THE OPERATION OF STATE STATUTES ON CONSTITUTIONAL GROUNDS, WAS
ENACTED IN 1910.  36 STAT. 557.  IT WAS AMENDED IN 1925 TO APPLY TO
APPLICATIONS FOR FINAL AS WELL AS INTERLOCUTORY INJUNCTIVE RELIEF.  43
STAT. 938.  SINCE THAT TIME THIS COURT HAS TAKEN JURISDICTION BY WAY OF
DIRECT APPEAL IN SEVERAL CASES LIKE THE PRESENT ONE, WHERE A STATE
STATUTE WAS SOUGHT TO BE ENJOINED BOTH ON FEDERAL CONSTITUTIONAL AND
NON-CONSTITUTIONAL GROUNDS.  SEE HERKNESS V. IRION, 278 U.S. 92;
STERLING V. CONSTANTIN, 287 U.S. 378, 393 (LIMITED IN PHILLIPS V.
UNITED STATES, 312 U.S. 246); SPIELMAN MOTOR SALES CO. V. DODGE, 295
U.S. 89; PARKER V. BROWN, 317 U.S. 341.  (FN1)  IN NONE OF THESE CASES,
HOWEVER, WAS OUR JURISDICTION CHALLENGED BY THE LITIGANTS BECAUSE NON
CONSTITUTIONAL AS WELL AS CONSTITUTIONAL RELIEF WAS SOUGHT, NOR DID THE
COURT NOTICE THE EXISTENCE OF A QUESTION AS TO OUR JURISDICTION ON THAT
SCORE.  WE SHOULD THEREFORE FEEL FREE TO APPLY MR. CHIEF JUSTICE
MARSHALL'S APPROACH IN A SIMILAR SITUATION TO UNCONSIDERED ASSUMPTIONS
OF JURISDICTION:  "NO QUESTION WAS MADE, IN THAT CASE, AS TO THE
JURISDICTION.  IT PASSED SUB SILENTIO, AND THE COURT DOES NOT CONSIDER
ITSELF AS BOUND BY THAT CASE."  UNITED STATES V. MORE, 3 CRANCH 159,
172.  SEE ALSO MR. CHIEF JUSTICE MARSHALL IN DUROUSSEAU V. UNITED
STATES, 6 CRANCH 307, AND MR. JUSTICE BRANDEIS DISSENTING IN KING MFG.
CO. V. AUGUSTA, 277 U.S. 100, 135, N. 21:  "IT IS WELL SETTLED THAT THE
EXERCISE OF JURISDICTION UNDER SUCH CIRCUMSTANCES (WHERE COUNSEL DID
NOT QUESTION OUR JURISDICTION) IS NOT TO BE DEEMED A PRECEDENT WHEN THE
QUESTION IS FINALLY BROUGHT BEFORE US FOR DETERMINATION."  (FN2)  I
THEREFORE APPROACH THE QUESTION OF OUR JURISDICTION IN THE PRESENT CASE
AS OPEN, CALLING FOR A THOROUGH CANVASS OF THE RELEVANT JURISDICTIONAL
FACTORS.  THE COURT DOES NOT UNDERTAKE SUCH A CANVASS, BUT RELIES
INSTEAD UPON THE CASES CITED AND UPON WHAT IT DEEMS EXPLICIT STATUTORY
LANGUAGE AND PLAINLY MANIFESTED CONGRESSIONAL INTENT.  CONSIDERATION OF
WHAT ARE TO ME THE RELEVANT FACTORS LEADS ME TO DISSENT FROM THE
COURT'S CONCLUSION THAT WE HAVE DIRECT APPELLATE JURISDICTION IN THIS
CASE. 

APPELLANTS' COMPLAINT SEEKS INJUNCTION AGAINST THE OPERATION OF SEC.
792 OF THE CALIFORNIA AGRICULTURAL CODE ON THE GROUNDS THAT IT IS IN
CONFLICT WITH THE FEDERAL AGRICULTURAL MARKETING AGREEMENT ACT OF 1937,
7 U.S.C. SEC. 601 ET SEQ., AND THE COMMERCE AND EQUAL PROTECTION
CLAUSES OF THE UNITED STATES CONSTITUTION.  THE COMPLAINT REQUESTED THE
CONVENING OF A THREE-JUDGE DISTRICT COURT TO ADJUDICATE THESE CLAIMS. 
A THREE-JUDGE COURT WAS CONVENED AND, AFTER HEARING, IT ENTERED A
JUDGMENT DISMISSING THE ACTION ON THE GROUND THAT NO JUSTICIABLE
CONTROVERSY EXISTED.  169 F. SUPP. 774.  A DIRECT APPEAL WAS TAKEN TO
THIS COURT PURSUANT TO 28 U.S.C. SEC. 1253.  THE COURT NOW HOLDS THAT
THREE JUDGES WERE REQUIRED TO ADJUDICATE APPELLANTS' CLAIMS BELOW AND
THAT WE THEREFORE HAVE JURISDICTION TO DECIDE THIS APPEAL ON ITS
MERITS. 

THE STATUTE GOVERNING OUR DIRECT APPELLATE JURISDICTION FROM
DECISIONS OF THREE-JUDGE DISTRICT COURTS IS 28 U.S.C. SEC. 1253: 

"EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY PARTY MAY APPEAL TO THE
SUPREME COURT FROM AN ORDER GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN ANY CIVIL ACTION,
SUIT OR PROCEEDING REQUIRED BY ANY ACT OF CONGRESS TO BE HEARD AND
DETERMINED BY A DISTRICT COURT OF THREE JUDGES." 

WHETHER THE PRESENT CASE WAS A "PROCEEDING REQUIRED  ...  TO BE HEARD
AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES," AND THEREFORE
WITHIN OUR DIRECT APPELLATE JURISDICTION, DEPENDS UPON THE MEANING TO
BE GIVEN TO 28 U.S.C. SEC. 2281: 

"AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE
ENFORCEMENT, OPERATION OR EXECUTION OF ANY STATE STATUTE BY RESTRAINING
THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION
OF SUCH STATUTE OR OF AN ORDER MADE BY AN ADMINISTRATIVE BOARD OR
COMMISSION ACTING UNDER STATE STATUTES, SHALL NOT BE GRANTED BY ANY
DISTRICT COURT OR JUDGE THEREOF UPON THE GROUND OF THE
UNCONSTITUTIONALITY OF SUCH STATUTE UNLESS THE APPLICATION THEREFOR IS
HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES UNDER SECTION
2284 OF THIS TITLE." 

I START WITH THE PROPOSITION, AS I UNDERSTAND THE COURT TO DO, THAT
WHETHER A CASE IS ONE DIRECTLY APPEALABLE HERE UNDER 28 U.S.C. SEC.
1253 DEPENDS UPON THE COMPLAINT, AND NOT UPON THE RESULT IN THE
DISTRICT COURT.  IF THREE JUDGES ARE REQUIRED TO HEAR THE CLAIMS WHICH
ARE MADE, THEN WE HAVE DIRECT APPELLATE JURISDICTION TO REVIEW THEIR
DECISION, EVEN THOUGH IT BE ON NON-CONSTITUTIONAL GROUNDS.  IF THREE
JUDGES ARE NOT REQUIRED IN VIEW OF THE COMPLAINT, AND THE CASE IS
DETERMINABLE BY A SINGLE JUDGE, WE HAVE NO JURISDICTION BY WAY OF
DIRECT APPEAL UNDER SEC. 1253, EVEN THOUGH THE DECISION BE A
CONSTITUTIONAL ONE. 

IN THIS CASE THE COMPLAINT DID NOT ATTACK THE CALIFORNIA STATUTE
SOLELY ON THE GROUND OF ITS CONFLICT WITH THE COMMERCE AND EQUAL
PROTECTION CLAUSES OF THE CONSTITUTION.  IT ALSO ATTACKED IT BECAUSE OF
ITS ASSERTED CONFLICT WITH THE FEDERAL AGRICULTURAL MARKETING AGREEMENT
ACT OF 1937, A CLAIM WHICH IN THE FIRST INSTANCE REQUIRES CONSTRUCTION
OF BOTH THE FEDERAL ACT AND THE CALIFORNIA STATUTE, AND WHICH FOR
PURPOSES RELEVANT TO OUR ISSUE IS NOT A CONSTITUTIONAL CLAIM.  EX PARTE
BUDER, 271 U.S. 461.  THE QUESTION THUS PRESENTED IS WHETHER THREE
JUDGES ARE TO BE REQUIRED, WITH A CONSEQUENT DIRECT APPEAL TO THIS
COURT, MERELY BECAUSE A CONSTITUTIONAL CLAIM IS MADE, ALTHOUGH IT IS
JOINED WITH CLAIMS THAT MAY DISPOSE OF THE CASE ON ESSENTIALLY
STATUTORY AND PERCHANCE LOCAL STATUTORY GROUNDS.  THE COURT DECIDES
THAT THREE JUDGES ARE REQUIRED IN SUCH A CASE.  I WOULD HOLD THAT THERE
ARE REQUIRED TO BE THREE JUDGES AND A DIRECT APPEAL TO THIS COURT ONLY
WHEN THE EXCLUSIVE GROUND OF ATTACK UPON A STATE STATUTE IS DIRECT AND
IMMEDIATE COLLISION WITH THE CONSTITUTION, THUS SEEKING A
CONSTITUTIONAL DECISION IN ORDER THAT RELIEF BE GRANTED. 

NEITHER MY POSITION NOR THE COURT'S IS ENTIRELY SATISFACTORY.  MY
VIEW WOULD LEAVE IT OPEN FOR A SINGLE DISTRICT JUDGE TO ENJOIN A STATE
STATUTE ON THE GROUND OF ITS UNCONSTITUTIONALITY IF THE COMPLAINT ALSO
CONTAINS NON-CONSTITUTIONAL GROUNDS FOR RELIEF.  AS THE COURT POINTS
OUT, SUCH A RESULT WOULD CONFLICT WITH THE SUPERFICIAL LITERAL SENSE OF
28 U.S.C. SEC. 2281 THAT AN "INJUNCTION RESTRAINING THE ENFORCEMENT
...  OF ANY STATE STATUTE  ...  SHALL NOT BE GRANTED BY ANY DISTRICT
COURT  ...  UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH STATUTE
UNLESS THE APPLICATION THEREFOR IS HEARD AND DETERMINED BY A DISTRICT
COURT OF THREE JUDGES  ...  ."  THE EFFECT OF THE COURT'S DECISION, ON
THE OTHER HAND, IS TO REQUIRE THE CONVENING OF A THREE-JUDGE COURT,
WITH THE COROLLARY RIGHT OF DIRECT APPEAL OF ITS DECISION TO THIS
COURT, IN CASES WHERE, AS A CONSEQUENCE OF THE PRESENCE OF A
SUBSTANTIAL NON-CONSTITUTIONAL GROUND FOR RELIEF, THE CONSTITUTIONALITY
OF A STATE STATUTE WILL PLAY NO PART IN THE DECISION, EITHER IN THE
DISTRICT COURT OR IN THIS COURT.  THERE CAN BE EXPECTED TO BE MANY SUCH
CASES.  FOR AN EXAMPLE OF ONE OF THEM SEE HERKNESS V. IRION, 278 U.S.
92.  IT CAN FAIRLY BE STATED, AND WITH THIS I UNDERSTAND THE COURT
FULLY TO AGREE, THAT IN DEVISING THE THREE-JUDGE DISTRICT COURT SCHEME
RELATING TO STATE LEGISLATION CONGRESS WAS CONCERNED WITH PROVIDING
APPROPRIATE SAFEGUARDS AGAINST THE INVALIDATION OF STATE LEGISLATION ON
CONSTITUTIONAL GROUNDS.  I AM THEREFORE PUT TO A CHOICE BETWEEN HOLDING
THIS THREE-JUDGE PROCEDURE APPLICABLE TO A LARGE CLASS OF NON
CONSTITUTIONAL CASES, WHERE THE UNUSUAL DEMANDS WHICH THAT PROCEDURE
MAKES UPON THE FEDERAL JUDICIAL SYSTEM WERE NEVER THOUGHT JUSTIFIABLE
BY CONGRESS, AND DEPARTING FROM THE STRICTLY LITERAL SENSE OF SEC. 2281
IN ORDER TO RESTRICT THE SCOPE OF THIS THREE-JUDGE PROCEDURE WITH A
VIEW TO PREVENTING ITS OPERATION OUTSIDE OF ITS PROPER CONSTITUTIONAL
SPHERE.  I AM LED TO CHOOSE THE LATTER BY CONSIDERATIONS WHICH ARE TO
ME CONTROLLING, NAMELY, CONSIDERATIONS BEARING ON THE EFFICIENT
OPERATION OF THE FEDERAL JUDICIAL SYSTEM.  FOR I DO NOT FIND MYSELF
COMPELLED TO DISREGARD THESE CONSIDERATIONS EITHER BY IRONCLAD
STATUTORY LANGUAGE OR BY ANY UNAMBIGUOUS EVIDENCE OF CONGRESSIONAL
PURPOSE TO THE CONTRARY. 

WHAT JURISDICTIONAL RESULT IN A CASE LIKE THIS IS MOST LIKELY TO
COMPORT BEST WITH THE OPERATION OF THE FEDERAL JUDICIAL SYSTEM IS TO BE
DETERMINED WITH REGARD TO TWO GENERAL AND CONFLICTING CONSIDERATIONS,
BOTH OF WHICH ARE DIRECTLY RELEVANT TO A CONSTRUCTION OF THE PROVISIONS
RESPECTING THREE-JUDGE DISTRICT COURTS IN THE CONTEXT OF THE PRESENT
SITUATION.  ON THE ONE HAND IS THE POLICY WHICH GAVE RISE TO THE
CREATION OF THE THREE-JUDGE REQUIREMENT IN THESE CASES:  PROTECTION
AGAINST THE IMPROVIDENT INVALIDATION OF STATE REGULATORY LEGISLATION
WAS SOUGHT TO BE ACHIEVED BY RESTING THE FATE OF SUCH LEGISLATION IN
THE FIRST INSTANCE IN THE HANDS OF THREE JUDGES, ONE OF WHOM MUST BE A
CIRCUIT JUDGE (OR, ORIGINALLY, A JUSTICE OF THIS COURT), RATHER THAN IN
A SINGLE DISTRICT JUDGE.  SEE POGUE, STATE DETERMINATION OF STATE LAW,
41 HARV. L. REV. 623; HUTCHESON, A CASE FOR THREE JUDGES, 47 HARV. L.
REV. 795.  AND DIRECT APPEAL TO THIS COURT WAS PROVIDED, INSTEAD OF THE
USUAL ROUTE FROM DISTRICT COURT TO COURT OF APPEALS, NOT ONLY TO AVOID
THE INCONGRUITY OF THREE JUDGES REVIEWING THREE JUDGES, BUT ALSO TO
HASTEN ULTIMATE DETERMINATION OF THE VALIDITY OF THE LEGISLATION AND TO
AVOID THE DELAY AND WASTE OF TIME DURING WHICH THE OPERATION OF
LEGISLATION EVENTUALLY HELD TO BE VALID MIGHT BE RESTRAINED ON
CONSTITUTIONAL GROUNDS BY INJUNCTION. 

WERE ONLY THESE CONSIDERATIONS CLAIMING JUDGMENT IN CONSTRUING INERT
LANGUAGE IT WOULD PLAINLY FOLLOW, AS THE COURT HAS CONCLUDED, THAT
THREE JUDGES ARE REQUIRED TO HEAR THE COMPLAINT IN THIS CASE, FOR
CONSTITUTIONAL CLAIMS ARE MADE AND IT IS NOT PRECLUDED THAT INJUNCTIVE
RELIEF MAY BE GRANTED ON AN OBVIOUS CONFLICT WITH SPECIFIC
CONSTITUTIONAL PROVISIONS.  BUT SO TO RULE HERE IS IN MY VIEW TO FAIL
TO GIVE DUE REGARD TO COUNTERVAILING CONSIDERATIONS OF FAR-REACHING
CONSEQUENCES TO THE FEDERAL JUDICIAL SYSTEM, AFFECTING THE FUNCTIONING
OF DISTRICT AND CIRCUIT COURTS, AS WELL AS OF THIS COURT. 
SPECIFICALLY, THE CONVENING OF A THREE-JUDGE TRIAL COURT MAKES FOR
DISLOCATION OF THE NORMAL STRUCTURE AND FUNCTIONING OF THE LOWER
FEDERAL COURTS, PARTICULARLY IN THE VAST NON-METROPOLITAN REGIONS; AND
DIRECT REVIEW OF DISTRICT COURT JUDGMENTS BY THIS COURT NOT ONLY
EXPANDS THIS COURT'S OBLIGATORY JURISDICTION BUT CONTRADICTS THE
DOMINANT PRINCIPLE OF HAVING THIS COURT REVIEW DECISIONS ONLY AFTER
THEY HAVE GONE THROUGH TWO JUDICIAL SIEVES, OR, IN THE CASE OF FEDERAL
REGULATORY LEGISLATION, THROUGH THE ADMINISTRATIVE TRIBUNAL AND A COURT
OF APPEALS.  ALSO, WHERE ISSUES OF LOCAL LAW HAVE TO BE ADJUDICATED
BEFORE REACHING QUESTIONS UNDER THE UNITED STATES CONSTITUTION, THE
DESIRABILITY OF HAVING THE APPROPRIATE COURT OF APPEALS ADJUDICATE SUCH
LOCAL ISSUES BECOMES OPERATIVE. 

I DEEM REGARD FOR THESE DEMANDS WHICH THE THREE-JUDGE REQUIREMENT
MAKES UPON THE FEDERAL JUDICIARY TO BE THE JURISDICTIONAL CONSIDERATION
OF PRINCIPAL IMPORTANCE IN A CASE SUCH AS THIS WHERE A CLAIM IS
SERIOUSLY URGED WHICH NECESSARILY INVOLVES, CERTAINLY IN THE FIRST
INSTANCE, CONSTRUCTION OF LOCAL OR FEDERAL STATUTES, THUS MAKING
POTENTIALLY AVAILABLE A NON-CONSTITUTIONAL GROUND ON WHICH THE CASE MAY
BE DISPOSED OF.  IT IS MORE IMPORTANT THAT THE ORDINARY OPERATION OF
OUR JUDICIAL SYSTEM NOT BE NEEDLESSLY DISRUPTED BY SUCH A CASE THAN IT
IS TO INSURE THAT EVERY CASE WHICH MAY TURN OUT TO BE CONSTITUTIONAL BE
HEARD BY THREE JUDGES.  I AM LED THEREFORE TO CONSTRUE STRICTLY THE
STATUTES PROVIDING THE THREE-JUDGE PROCEDURE RELEVANT TO THIS CASE SO
AS TO PERMIT THEIR INVOCATION ONLY WHEN THE CLAIM IS SOLELY
CONSTITUTIONAL, THUS TENDING TO INSURE THAT THE THREE-JUDGE PROCEDURE
WILL NOT BE EXTENDED TO NON-CONSTITUTIONAL CASES NOT WITHIN ITS PROPER
SPHERE. 

MY ADHERENCE TO SUCH CONFINING CONSTRUCTION OF THE NECESSITY BOTH FOR
CONVENING THREE JUDGES AND FOR THIS COURT TO BE THE FIRST APPELLATE
TRIBUNAL IS CONSISTENT WITH THE APPROACH THIS COURT HAS TAKEN WHEN IT
HAS IN THE PAST REFUSED TO APPLY THIS LEGISLATION.  SEE MOORE V.
FIDELITY & DEPOSIT CO., 272 U.S. 317; SMITH V. WILSON, 273 U.S. 388; EX
PARTE COLLINS, 277 U.S. 565; OKLAHOMA GAS CO. V. PACKING CO., 292 U.S.
386; EX PARTE WILLIAMS, 277 U.S. 267; EX PARTE PUBLIC NATIONAL BANK,
278 U.S. 101; RORICK V. BOARD OF COMMISSIONERS, 307 U.S. 208; EX PARTE
BRANSFORD, 310 U.S. 354; WILENTZ V. SOVEREIGN CAMP, 306 U.S. 573;
PHILLIPS V. UNITED STATES, 312 U.S. 246; STAINBACK V. MO HOCK KE LOK
PO, 366 U.S. 368.  AS WE STRESSED IN PHILLIPS V. UNITED STATES, SUPRA,
THESE CASES APPROACH THIS THREE-JUDGE STATUTE AS A PROCEDURAL
TECHNICALITY AND NOT AS THE EMBODIMENT OF A MORE OR LESS BROADLY
PHRASED SOCIAL POLICY THE ENFORCEMENT OF WHICH REQUIRES A GENEROUS
REGARD FOR SOME UNDERLYING SOCIAL PURPOSE.  IN STAINBACK V. MO HOCK KE
LOK PO, SUPRA, WE CONTINUED TO REFER TO "THE LONG-ESTABLISHED RULE OF
STRICT CONSTRUCTION" OF THIS PROVISION FOR THREE JUDGES, 366 U.S., AT
378, AND REFUSED TO FIND IT APPLICABLE TO THE TERRITORY OF HAWAII. 
THESE CASES RECOGNIZE WHAT THE COURT TODAY IN MY VIEW DOES NOT - THAT
IN GIVING SCOPE TO THE THREE-JUDGE REQUIREMENT DUE REGARD SHOULD BE
GIVEN TO THE CONSEQUENCES TO THE EFFECTIVE FUNCTIONING OF THE FEDERAL
JUDICIARY AS A TOTALITY, ESPECIALLY TO THE FACT THAT AN EXPANSIVE
CONSTRUCTION OF THE THREE-JUDGE REQUIREMENT INCREASES THE SCOPE OF THIS
COURT'S DIRECT REVIEW AND THEREBY IS AT CROSS PURPOSES WITH THE ACT OF
FEBRUARY 13, 1925, 43 STAT. 936, THE PRIMARY AIM OF WHICH WAS TO KEEP
OUR APPELLATE DOCKET WITHIN NARROW CONFINES.  SEE MOORE V. FIDELITY &
DEPOSIT CO., 272 U.S. 317, 321. 

AS AGAINST THE RESULT TO WHICH I AM LED BY THESE IMPORTANT
CONSIDERATIONS BEARING ON THE PROPER FUNCTIONING OF THE FEDERAL
JUDICIAL SYSTEM, WHICH I DO NOT UNDERSTAND THE COURT TO DISPUTE, I
CANNOT BE PERSUADED, AS APPARENTLY THE COURT IS, BY ARGUMENTS STEMMING
FROM "THE EXPLICIT LANGUAGE," THE LITERAL SENSE, OF 28 U.S.C. SEC.
2281.  JURISDICTIONAL PROVISIONS ARE NOT TO BE READ IN ISOLATION WITH
MUTILATING LITERALNESS, BUT AS HARMONIZING PARTS OF THE COMPREHENSIVE,
RETICULATED JUDICIAL SYSTEM.  FOR AN INSTANCE OF THIS COURT'S EXPRESS
REFUSAL TO GIVE THE SURFACE LITERAL MEANING TO A JURISDICTIONAL
PROVISION ON THE GROUND THAT TO DO SO WOULD NOT BE CONSISTENT WITH THE
"SENSE OF THE THING" AND WOULD CONFER UPON THIS COURT A JURISDICTION
BEYOND WHAT "NATURALLY AND PROPERLY BELONGS TO IT," SEE AMERICAN
SECURITY & TRUST CO. V. COMMISSIONERS, 224 U.S. 491, 495.  AND SEE EX
PARTE COLLINS, 277 U.S. 565, 568, WHERE "DESPITE THE GENERALITY OF THE
LANGUAGE" OF THIS THREE-JUDGE PROVISION, IT WAS HELD THAT A SUIT WAS
NOT ONE TO RESTRAIN THE OPERATION OF A STATE STATUTE WHEN "THE
DEFENDANTS ARE LOCAL OFFICERS AND THE SUIT INVOLVES MATTERS OF INTEREST
ONLY TO THE PARTICULAR MUNICIPALITY OR DISTRICT INVOLVED."  RELIANCE
UPON LITERALISM IN CONSTRUING A JURISDICTIONAL STATUTE CONSTITUTES
SLAVISH ADHERENCE TO WORDS, AS THOUGH THEY WERE SYMBOLS HAVING SINGLE,
ABSOLUTE MEANINGS, AND REFLECTS INDIFFERENCE TO THE SIGNIFICANCE OF
JURISDICTIONAL LEGISLATION AS A VEHICLE FOR JUDICIAL ADMINISTRATION. 

NOR AM I PERSUADED THAT I MUST DECIDE CONTRARY TO WHAT ARE TO ME THE
CONSIDERATIONS OF PROPER JUDICIAL ADMINISTRATION BY WHAT SEEMS CHIEFLY
TO HAVE PERSUADED THE COURT, NAMELY, THAT SEC. 2281 "PLAINLY  ...
INDICATES A CONGRESSIONAL INTENTION TO REQUIRE AN APPLICATION FOR AN
INJUNCTION TO BE HEARD AND DETERMINED BY A COURT OF THREE JUDGES IN ANY
CASE IN WHICH THE INJUNCTION MAY BE GRANTED ON GROUNDS OF FEDERAL
UNCONSTITUTIONALITY."  (PP. 76-77 OF THE COURT'S OPINION.)  I CAN FIND
NO SUCH PLAIN CONGRESSIONAL INTENTION WITH REGARD TO THE PROBLEM
PRESENTED BY THE PRESENT CASE.  WHEN THE THREE-JUDGE STATUTE WAS FIRST
PASSED BY CONGRESS IN 1910 IT APPLIED ONLY TO APPLICATIONS FOR
INTERLOCUTORY INJUNCTIONS.  JURISDICTION REMAINED IN A SINGLE JUDGE TO
HEAR AN APPLICATION FOR A FINAL INJUNCTION AGAINST THE OPERATION OF A
STATE STATUTE ON GROUNDS OF UNCONSTITUTIONALITY, AND A SINGLE JUDGE HAD
THE POWER TO GRANT SUCH AN INJUNCTION.  THUS IT IS IMPOSSIBLE TO
ATTRIBUTE TO CONGRESS AT THAT TIME AN INTENTION THAT ANY CASE INVOLVING
AN INJUNCTION OF A STATE STATUTE ON CONSTITUTIONAL GROUNDS BE HEARD AND
DETERMINED BY THREE JUDGES.  THE CONCERN WAS ONLY WITH IMPROVIDENT
INTERLOCUTORY RELIEF.  AND IN 1925, WHEN THE THREE-JUDGE STATUTE WAS
EXTENDED TO INCLUDE APPLICATIONS FOR FINAL AS WELL AS INTERLOCUTORY
RELIEF, THE ONLY EVIDENT CONCERN OF CONGRESS WAS, AS THE COURT AGREES,
"TO END THE ANOMALOUS SITUATION IN WHICH A SINGLE JUDGE MIGHT
RECONSIDER AND DECIDE QUESTIONS ALREADY PASSED UPON BY THREE JUDGES ON
THE APPLICATION FOR AN INTERLOCUTORY INJUNCTION."  STRATTON V. ST.
LOUIS SOUTHWESTERN R. CO., 282 U.S. 10, 14.  IT IS, OF COURSE, COMMON
KNOWLEDGE THAT CONGRESS' CENTRAL CONCERN IN ENACTING THE JURISDICTIONAL
ACT OF 1925 WAS TO RESTRICT THE OBLIGATORY APPELLATE JURISDICTION OF
THIS COURT.  THUS, ALTHOUGH THE RESULT OF THE 1910 AND 1925 ACTS IS
LANGUAGE WHICH ON ITS FACE APPEARS TO PROHIBIT ONE JUDGE FROM EVER
ENJOINING A STATE STATUTE ON CONSTITUTIONAL GROUNDS, I DO NOT THINK IT
FAIR TO SAY THAT THERE WAS EVER A DELIBERATE ACCOMPANYING PURPOSE IN
CONGRESS TO ACHIEVE SUCH A SWEEPING INFLEXIBLE RESULT.  IN THE ABSENCE
OF ANY MANIFESTATIONS OF SUCH A PURPOSE, I DO NOT SEE WHY WE SHOULD
ATTRIBUTE TO CONGRESS, AS THE COURT DOES, AN INTENTION TO ACHIEVE A
RESULT WHICH TO ME IS PLAINLY OUT OF HARMONY WITH THE BEST OPERATION OF
THE FEDERAL JUDICIAL SYSTEM.  (FN3) 

AND IF WE ARE TO LOOK TO OUR PRIOR DECISIONS FOR GUIDANCE WITH REGARD
TO THE PROPER APPROACH TO STATUTES CONFERRING UPON THIS COURT DIRECT
APPELLATE JURISDICTION OVER DECISIONS IN CONSTITUTIONAL CASES, I FIND
MUCH MORE RELEVANT THAN THE DECISIONS RELIED UPON BY THE COURT, WHICH
REACHED THE COURT'S RESULT WITHOUT CONSIDERATION OF THE JURISDICTIONAL
PROBLEMS NOW PRESENTED, OUR DECISIONS IN EX PARTE BUDER, 271 U.S. 461,
AND IN LEMKE V. FARMERS GRAIN CO., 258 U.S. 50 (LEMKE I).  BUDER AROSE
UNDER THE THREE-JUDGE STATUTE INVOLVED IN THE PRESENT CASE, AND LEMKE I
AROSE UNDER SEC. 238 OF THE OLD JUDICIAL CODE WHICH, NO LESS LITERALLY
THAN THE STATUTE IN THE PRESENT CASE, GAVE THIS COURT DIRECT APPELLATE
JURISDICTION IN CASES IN WHICH A STATE LAW WAS "CLAIMED TO BE IN
CONTRAVENTION OF THE CONSTITUTION OF THE UNITED STATES."  IN BOTH OF
THESE CASES THE JURISDICTIONAL PROBLEM WAS EXPRESSLY CONSIDERED, AND
THE JURISDICTIONAL LEGISLATION WAS READ SO AS NOT TO REQUIRE THIS
COURT'S DIRECT APPELLATE JURISDICTION IN CASES WHERE NON-CONSTITUTIONAL
CLAIMS WERE MADE, EVEN THOUGH CONSTITUTIONAL FACTORS WERE ALSO
IMPLICATED AND DECISION MIGHT ULTIMATELY HAVE TURNED ON CONSTITUTIONAL
GROUNDS. 

LEGISLATING IS FOR CONGRESS.  APPLYING WHAT CONGRESS HAS ENACTED
REQUIRES OFTENER THAN NOT CONSTRUCTION.  THAT IS A JUDICIAL FUNCTION. 
THIS IS PARTICULARLY TRUE OF JUDICIARY LEGISLATION WHICH IS MAINLY
CONCERNED WITH THE DISTRIBUTION OF JUDICIAL POWER THROUGH DEPLOYMENT OF
THE JUDICIAL FORCE AND THE EFFECTIVE EXERCISE OF APPELLATE REVIEW.  IT
IS ALSO TRUE TO STATE THAT CONGRESS SELDOM CONCERNS ITSELF WITH THIS
COURT'S DECISIONS CONSTRUING JUDICIARY LEGISLATION UNLESS SOME DRAMATIC
RESULT AROUSES ITS INTEREST.  WE DO NOT HAVE TO GO FURTHER FOR AN
ILLUSTRATION OF THIS GENERALIZATION THAN TO NOTICE THE INDIFFERENCE OF
CONGRESS, IN THE SENSE THAT NO LEGISLATIVE CHANGES HAVE BEEN PROPOSED
ONE WAY OR THE OTHER, WITH REGARD TO THE ACT INVOLVED IN THIS CASE, OR
THE CRIMINAL APPEALS ACT OF 1907.  BECAUSE THESE THINGS ARE TRUE I AM
CONVINCED THAT IT WOULD IN NO WISE SHOW A DISREGARD FOR ANY LEGISLATIVE
PURPOSE IN THE ENACTMENT OF THE THREE-JUDGE DEVICE, OR FOR ANY KIND OF
LEGISLATIVE ATTITUDE TOWARD THE SERIES OF CASES IN WHICH THIS COURT HAS
SINCE THEN APPLIED THAT LEGISLATION, IF NOW UPON FULL CONSIDERATION WE
WERE TO CONSTRUE THIS LEGISLATION IN LIGHT OF THE DEMANDS OF THE
FEDERAL SYSTEM AS A TOTALITY TO RESTRICT IT TO WHAT WAS PLAINLY THE
CENTRAL CONCERN OF CONGRESS, TO WIT, TO THOSE CASES WHERE STATE
LEGISLATION IS CHALLENGED SIMPLICITER AS DIRECTLY OFFENSIVE TO SOME
SPECIFIC PROVISION OF THE CONSTITUTION AND WHERE THE CLAIM IS NOT
ENTANGLED WITH OTHER CLAIMS, USUALLY TURNING UPON THE CONSTRUCTION OF
LOCAL OR FEDERAL STATUTES, WHICH NECESSARILY MUST BE PASSED UPON BEFORE
THE CONSTITUTIONAL QUESTION IS REACHED.  I THEREFORE DISSENT FROM THE
DECISION OF THE COURT THAT WE HAVE JURISDICTION IN THIS CASE. 

FN1  PRIOR TO THE 1925 EXTENSION OF THIS THREE-JUDGE-COURT STATUTE TO
COVER APPLICATIONS FOR FINAL INJUNCTIONS, THERE WERE ALSO CASES LIKE
THE PRESENT ONE, WHERE NON-CONSTITUTIONAL AS WELL AS CONSTITUTIONAL
CLAIMS WERE MADE, IN WHICH THE COURT ACCEPTED JURISDICTION.  SEE
LOUISVILLE & NASHVILLE R. CO. V. GARRETT, 231 U.S. 298; LEMKE V. HOMER
FARMERS ELEVATOR CO., 258 U.S. 65 (LEMKE II); CAVANAUGH V. LOONEY, 248
U.S. 453; SHAFER V. FARMERS GRAIN CO., 268 U.S. 189.  OF THESE CASES,
ONLY LOUISVILLE & NASHVILLE R. CO. V. GARRETT GAVE ANY ATTENTION
WHATSOEVER TO JURISDICTIONAL CONSIDERATIONS, AND IN THAT CASE THERE WAS
NO DIRECT CHALLENGE TO THIS COURT'S JURISDICTION OF THE WHOLE CASE
UNDER THE THREE-JUDGE STATUTE ON THE GROUND THAT NON-CONSTITUTIONAL AS
WELL AS CONSTITUTIONAL CLAIMS WERE MADE.  BUT THERE IS AN EVEN MORE
FUNDAMENTAL REASON FOR DISCOUNTING THESE PRE-1925 CASES AS AUTHORITY
REGARDING THE JURISDICTIONAL PROBLEM IN THE PRESENT CASE.  AS GARRETT
AND THESE OTHER CASES WERE DECIDED PRIOR TO THE 1925 JURISDICTIONAL
ACT, WHICH DRASTICALLY SHRUNK THIS COURT'S JURISDICTION ON APPEAL, THEY
AROSE AT A TIME WHEN THE SCOPE OF DIRECT APPELLATE JURISDICTION HERE
OVER DECISIONS OF ORDINARY ONE-JUDGE DISTRICT COURTS WAS MUCH BROADER
THAN IT NOW IS, AND IN FACT APPLIED UNDER SEC. 238 OF THE JUDICIAL CODE
TO ALL CONSTITUTIONAL CASES, INCLUDING CASES LIKE THE PRESENT ONE
INVOLVING FEDERAL STATUTORY GROUNDS FOR RELIEF IN ADDITION TO
CONSTITUTIONAL GROUNDS.  SEE SPRECKELS SUGAR REFINING CO. V. MCCLAIN,
192 U.S. 392, 407-408; MACFADDEN V. UNITED STATES, 213 U.S. 288.  THUS
THE RESULTS OF THESE PRE-1925 CASES, PERMITTING THE SAME SCOPE OF
DIRECT APPEAL TO THIS COURT IN THREE-JUDGE CASES AS SEC. 238 THEN
PERMITTED IN ONE-JUDGE CASES, WERE NOT AS OBVIOUSLY OUT OF HARMONY WITH
THE SCHEME OF THE FEDERAL JUDICIAL SYSTEM IN THEIR DAY AS I BELIEVE IS
THE DECISION WHICH THE COURT MAKES TODAY. 

FN2  THE COURT'S RULES 15, PAR. 1(C)(1) AND 23, PAR. 1(C) EMPHASIZE
THE DOCTRINE THAT A SUB SILENTIO EXERCISE OF JURISDICTION IS NOT
CONTROLLING AS PRECEDENT: "ONLY THE QUESTIONS SET FORTH IN THE
JURISDICTIONAL STATEMENT (OR PETITION) OR FAIRLY COMPRISED THEREIN WILL
BE CONSIDERED BY THE COURT." 

FN3  IT IS INTERESTING TO NOTE THAT WHILE THE JUDICIAL CODE ALSO
CONTAINS A PROVISION REQUIRING THREE JUDGES TO HEAR CASES SEEKING
INJUNCTIONS AGAINST FEDERAL STATUTES ON CONSTITUTIONAL GROUNDS (28
U.S.C. SEC. 2282), CONGRESS HAS LEFT NO ROOM FOR DOUBT THAT IN
LITIGATION ATTACKING FEDERAL STATUTES IF IN FACT (WHERE THE UNITED
STATES OR ONE OF ITS AGENTS IS A PARTY) A FEDERAL STATUTE IS DECLARED
UNCONSTITUTIONAL, THE CASE IS TO BE DIRECTLY REVIEWED HERE.  28 U.S.C.
SEC. 1252 SO PROVIDES. 
..END :











FEDERAL POWER COMMISSION V. TUSCARORA INDIAN NATION 362 U.S. 99 


NO. 63.  ARGUED DECEMBER 7, 1959 - DECIDED MARCH 7, 1960* - 105 U.S.
APP. D.C. 146, 265 F.2D 338, REVERSED. 

*TOGETHER WITH NO. 66, POWER AUTHORITY OF THE STATE OF NEW YORK V.
TUSCARORA INDIAN NATION, ALSO ON CERTIORARI TO THE SAME COURT. 


UNDER SEC. 21 OF THE FEDERAL POWER ACT, CERTAIN LANDS PURCHASED AND
OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION AND LYING ADJACENT
TO A NATURAL POWER SITE ON THE NIAGARA RIVER MAY BE TAKEN FOR THE
STORAGE RESERVOIR OF A HYDROELECTRIC POWER PROJECT, UPON PAYMENT OF
JUST COMPENSATION, BY THE POWER AUTHORITY OF THE STATE OF NEW YORK
UNDER A LICENSE ISSUED TO IT BY THE FEDERAL POWER COMMISSION AS
DIRECTED BY CONGRESS IN THE ACT OF AUGUST 21, 1957, 71 STAT. 401.  PP.
100-124. 

(1)  INASMUCH AS THE LANDS HERE INVOLVED ARE OWNED IN FEE SIMPLE BY
THE TUSCARORA INDIAN NATION AND NO "INTEREST" IN THEM IS "OWNED BY THE
UNITED STATES," THEY ARE NOT WITHIN A "RESERVATION," AS THAT TERM IS
DEFINED IN SEC. 3(2) OF THE FEDERAL POWER ACT, AND, THEREFORE, A
COMMISSION FINDING UNDER SEC. 4(E) "THAT THE LICENSE WILL NOT INTERFERE
OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS
CREATED OR ACQUIRED" IS NOT NECESSARY TO THE ISSUANCE OF A LICENSE
EMBRACING THE LANDS IN QUESTION.  PP. 110-115. 

(2)  BY THE BROAD GENERAL TERMS OF SEC. 21 OF THE FEDERAL POWER ACT,
CONGRESS HAS AUTHORIZED THE FEDERAL POWER COMMISSION'S LICENSEES TO
TAKE LANDS OWNED BY INDIANS, AS WELL AS THOSE OF ALL OTHER CITIZENS,
WHEN NEEDED FOR A LICENSED PROJECT, UPON PAYMENT OF JUST COMPENSATION;
THE LANDS IN QUESTION ARE NOT SUBJECT TO ANY TREATY BETWEEN THE UNITED
STATES AND THE TUSCARORA INDIAN NATION; AND 25 U.S.C. SEC. 177,
FORBIDDING A TRANSFER OF LANDS FROM INDIANS UNLESS MADE BY A TREATY OR
CONVENTION ENTERED INTO PURSUANT TO THE CONSTITUTION, DOES NOT APPLY TO
THE UNITED STATES ITSELF NOR PROHIBIT IT OR ITS LICENSEES UNDER THE
FEDERAL POWER ACT FROM TAKING SUCH LANDS IN THE MANNER PROVIDED BY SEC.
21, UPON PAYMENT OF JUST COMPENSATION.  PP. 115-124. 

FEDERAL POWER COMMISSION V. TUSCARORA INDIAN NATION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE QUESTION PRESENTED BY THESE CASES IS WHETHER CERTAIN
LANDS, PURCHASED AND OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION
AND LYING ADJACENT TO A NATURAL POWER SITE ON THE NIAGARA RIVER NEAR
THE TOWN OF LEWISTON, NEW YORK, MAY BE TAKEN FOR THE STORAGE RESERVOIR
OF A HYDROELECTRIC POWER PROJECT, UPON THE PAYMENT OF JUST
COMPENSATION, BY THE POWER AUTHORITY OF THE STATE OF NEW YORK UNDER A
LICENSE ISSUED TO IT BY THE FEDERAL POWER COMMISSION AS DIRECTED BY
CONGRESS IN PUBLIC LAW 85-159, APPROVED AUGUST 21, 1957, 71 STAT. 401. 

THE NIAGARA RIVER, AN INTERNATIONAL BOUNDARY STREAM AND A NAVIGABLE
WATERWAY OF THE UNITED STATES, FLOWS FROM LAKE ERIE TO LAKE ONTARIO, A
DISTANCE OF 36 MILES.  ITS MEAN FLOW IS ABOUT 200,000 CUBIC FEET PER
SECOND.  THE RIVER DROPS ABOUT 165 FEET AT NIAGARA FALLS AND AN
ADDITIONAL 140 FEET IN THE RAPIDS IMMEDIATELY ABOVE AND BELOW THE
FALLS.  THE "HEAD" CREATED BY THESE GREAT FALLS, COMBINED WITH THE
LARGE AND STEADY FLOW OF THE RIVER, MAKES THE LEWISTON POWER SITE,
LOCATED BELOW THE RAPIDS, AN EXTREMELY FAVORABLE ONE FOR HYDROELECTRIC
DEVELOPMENT. 

FOR THE PURPOSE OF AVOIDING "CONTINUING WASTE OF A GREAT NATURAL
RESOURCE AND TO MAKE IT POSSIBLE FOR THE UNITED STATES OF AMERICA AND
CANADA TO DEVELOP, FOR THE BENEFIT OF THEIR RESPECTIVE PEOPLES, EQUAL
SHARES OF THE WATERS OF THE NIAGARA RIVER AVAILABLE FOR POWER
PURPOSES," THE UNITED STATES AND CANADA ENTERED INTO THE TREATY OF
FEBRUARY 27, 1950, (FN1) PROVIDING FOR A FLOW OF 100,000 CUBIC FEET PER
SECOND OVER NIAGARA FALLS DURING CERTAIN SPECIFIED DAYTIME AND EVENING
HOURS OF THE TOURIST SEASON (APRIL 1 TO OCTOBER 31) AND OF 50,000 CUBIC
FEET PER SECOND AT OTHER TIMES, AND AUTHORIZING THE EQUAL DIVISION BY
THE UNITED STATES AND CANADA OF ALL EXCESS WATERS FOR POWER PURPOSES. 
(FN2) 

IN CONSENTING TO THE 1950 TREATY, THE SENATE IMPOSED THE CONDITION
THAT "NO PROJECT FOR REDEVELOPMENT OF THE UNITES STATES' SHARE OF SUCH
WATERS SHALL BE UNDERTAKEN UNTIL IT BE SPECIFICALLY AUTHORIZED BY ACT
OF CONGRESS."  1 U.S.T. 694, 699.  TO THAT END, A STUDY WAS MADE AND
REPORTED TO CONGRESS IN 1951 BY THE UNITED STATES ARMY CORPS OF
ENGINEERS RESPECTING THE MOST FEASIBLE PLANS FOR UTILIZING ALL OF THE
WATERS AVAILABLE TO THE UNITED STATES UNDER THE 1950 TREATY, AND
DETAILED PLANS EMBODYING OTHER STUDIES WERE PREPARED AND SUBMITTED TO
CONGRESS PRIOR TO JUNE 7, 1956, BY THE BUREAU OF POWER OF THE FEDERAL
POWER COMMISSION, THE POWER AUTHORITY OF NEW YORK, AND THE NIAGARA
MOHAWK POWER CORPORATION.  (FN3)  TO ENABLE UTILIZATION OF ALL OF THE
UNITED STATES' SHARE OF THE NIAGARA WATERS BY AVOIDING WASTE OF THE
NIGHTTIME AND WEEK-END FLOW THAT WOULD NOT BE NEEDED AT THOSE TIMES FOR
THE GENERATION OF POWER, ALL OF THE STUDIES AND PLANS PROVIDED FOR A
PUMPING-GENERATING PLANT TO LIFT THOSE WATERS AT THOSE TIMES INTO A
RESERVOIR, AND FOR A STORAGE RESERVOIR TO CONTAIN THEM UNTIL RELEASED
FOR USE - THROUGH THE PUMPING-GENERATING PLANT, WHEN ITS MOTORS
(OPERATING IN REVERSE) WOULD SERVE AS GENERATORS - DURING THE DAYTIME
HOURS WHEN THE DEMAND FOR POWER WOULD BE HIGHEST AND THE DIVERSION OF
WATERS FROM THE RIVER WOULD BE MOST RESTRICTED BY THE TREATY. 
ESTIMATES OF DEPENDABLE CAPACITY OF THE SEVERAL RECOMMENDED PROJECTS
VARIED FROM 1,240,000 TO 1,723,000 KILOWATTS, AND ESTIMATES OF THE
NEEDED RESERVOIR CAPACITY VARIED FROM 22,000 ACRE-FEET COVERING 850
ACRES TO 41,000 ACRE-FEET COVERING 1,700 ACRES.  THE VARIATIONS IN
THESE ESTIMATES WERE LARGELY DUE TO DIFFERING ASSUMPTIONS AS TO THE
LENGTH OF THE DAILY PERIOD OF PEAK DEMAND. 

ALTHOUGH THERE WAS "NO CONTROVERSY AS TO THE MOST DESIRABLE
ENGINEERING PLAN OF DEVELOPMENT," (FN4) THERE WAS SERIOUS DISAGREEMENT
IN CONGRESS OVER WHETHER THE PROJECT SHOULD BE PUBLICLY OR PRIVATELY
DEVELOPED AND OVER MARKETING PREFERENCES AND OTHER MATTERS OF POLICY. 
THAT DISAGREEMENT CONTINUED THROUGH EIGHT SESSIONS OF COMMITTEE
HEARINGS, DURING WHICH MORE THAN 30 PROPOSED BILLS WERE CONSIDERED, IN
THE EIGHTY-FIRST TO EIGHTY-FIFTH CONGRESSES, (FN5) AND DELAYED
CONGRESSIONAL AUTHORIZATION OF THE PROJECT FOR SEVEN YEARS. 

ON JUNE 7, 1956, A ROCK SLIDE DESTROYED THE SCHOELLKOPF PLANT.  (FN6)
THIS CREATED A CRITICAL SHORTAGE OF ELECTRIC POWER IN THE NIAGARA
COMMUNITY.  IT ALSO REQUIRED EXPANSION OF THE PLANS FOR THE NIAGARA
PROJECT IF THE 20,000 CUBIC FEET PER SECOND OF WATER THAT HAD BEEN
RESERVED FOR THE SCHOELLKOPF PLANT WAS TO BE UTILIZED.  ACCORDINGLY,
THE POWER AUTHORITY OF NEW YORK PREPARED AND SUBMITTED TO CONGRESS A
MAJOR REVISION OF THE PROJECT PLANS.  THOSE REVISED PLANS, DESIGNED TO
UTILIZE ALL OF THE NIAGARA WATERS AVAILABLE TO THE UNITED STATES UNDER
THE 1950 TREATY, PROVIDED FOR AN INSTALLED CAPACITY OF 2,190,000
KILOWATTS, OF WHICH 1,800,000 KILOWATTS WOULD BE DEPENDABLE POWER FOR
17 HOURS PER DAY, NECESSITATING A STORAGE RESERVOIR OF 60,000 ACRE-FEET
CAPACITY COVERING ABOUT 2,800 ACRES.  (FN7) 

CONFRONTED WITH THE DESTRUCTION OF THE SCHOELLKOPF PLANT AND THE
CONSEQUENT CRITICAL NEED FOR ELECTRIC POWER IN THE NIAGARA COMMUNITY,
CONGRESS SPEEDILY COMPOSED ITS DIFFERENCES IN THE MANNER AND TERMS
PRESCRIBED IN PUBLIC LAW 85-159, APPROVED AUGUST 21, 1957.  71 STAT.
401.  BY SEC. 1(A) OF THAT ACT, CONGRESS "EXPRESSLY AUTHORIZED AND
DIRECTED" THE FEDERAL POWER COMMISSION "TO ISSUE A LICENSE TO THE POWER
AUTHORITY OF THE STATE OF NEW YORK FOR THE CONSTRUCTION AND OPERATION
OF A POWER PROJECT WITH CAPACITY TO UTILIZE ALL OF THE UNITED STATES
SHARE OF THE WATER OF THE NIAGARA RIVER PERMITTED TO BE USED BY
INTERNATIONAL AGREEMENT."  BY SEC. 1(B) OF THE ACT, THE FEDERAL POWER
COMMISSION WAS DIRECTED TO "INCLUDE AMONG THE LICENSING CONDITIONS, IN
ADDITION TO THOSE DEEMED NECESSARY AND REQUIRED UNDER THE TERMS OF THE
FEDERAL POWER ACT," SEVEN CONDITIONS WHICH ARE OF ONLY COLLATERAL
IMPORTANCE HERE.  (FN8)  THE CONCLUDING SECTION OF THE ACT, SEC. 2,
PROVIDES:  "THE LICENSE ISSUED UNDER THE TERMS OF THIS ACT SHALL BE
GRANTED IN CONFORMANCE WITH RULES OF PRACTICE AND PROCEDURE OF THE
FEDERAL POWER COMMISSION, BUT IN THE EVENT OF ANY CONFLICT, THE
PROVISIONS OF THIS ACT SHALL GOVERN IN RESPECT OF THE PROJECT HEREIN
AUTHORIZED." 

THEREAFTER, THE POWER AUTHORITY OF THE STATE OF NEW YORK, A MUNICIPAL
CORPORATION CREATED UNDER THE LAWS OF THAT STATE TO DEVELOP THE ST.
LAWRENCE AND NIAGARA POWER PROJECTS, APPLIED TO THE FEDERAL POWER
COMMISSION FOR THE PROJECT LICENSE WHICH CONGRESS HAD THUS DIRECTED THE
COMMISSION TO ISSUE TO IT.  ITS APPLICATION EMBRACED THE PROJECT PLANS
THAT IT HAD SUBMITTED TO THE EIGHTY-FIFTH CONGRESS SHORTLY BEFORE ITS
APPROVAL OF PUBLIC LAW 85-159.  (FN9)  THE PROJECT WAS SCHEDULED TO BE
COMPLETED IN 1963 AT AN ESTIMATED COST OF $720,000,000. 

HEARINGS WERE SCHEDULED BY THE COMMISSION, OF WHICH DUE NOTICE WAS
GIVEN TO ALL INTERESTED PARTIES, INCLUDING THE TUSCARORA INDIAN NATION,
INASMUCH AS THE APPLICATION CONTEMPLATED THE TAKING OF SOME OF ITS
LANDS FOR THE RESERVOIR.  THE TUSCARORA INDIAN NATION INTERVENED AND
OBJECTED TO THE TAKING OF ANY OF ITS LANDS UPON THE GROUND "THAT THE
APPLICANT LACKS AUTHORITY TO ACQUIRE THEM."  AT THE HEARINGS, IT WAS
SHOWN THAT THE TUSCARORA LANDS NEEDED FOR THE RESERVOIR - THEN THOUGHT
TO BE ABOUT 1,000 ACRES - ARE PART OF A SEPARATE TRACT OF 4,329 ACRES
PURCHASED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION, WITH THE
ASSISTANCE OF HENRY DEARBORN, THEN SECRETARY OF WAR, FROM THE HOLLAND
LAND COMPANY ON NOVEMBER 21, 1804, WITH THE PROCEEDS DERIVED FROM THE
CONTEMPORANEOUS SALE OF THEIR LANDS IN NORTH CAROLINA - FROM WHICH THEY
HAD REMOVED IN ABOUT THE YEAR 1775 TO RESIDE WITH THE ONEIDAS IN
CENTRAL NEW YORK.  (FN10) 

AFTER CONCLUDING THE HEARINGS, THE COMMISSION, ON JANUARY 30, 1958,
ISSUED ITS ORDER GRANTING THE LICENSE.  IT FOUND THAT A RESERVOIR
HAVING A USABLE STORAGE CAPACITY OF 60,000 ACRE-FEET "IS REQUIRED TO
PROPERLY UTILIZE THE WATER RESOURCES INVOLVED."  ALTHOUGH THE
COMMISSION FOUND THAT THE INDIAN LANDS "ARE ALMOST ENTIRELY UNDEVELOPED
EXCEPT FOR AGRICULTURAL USE," IT DID NOT PASS UPON THE TUSCARORAS'
OBJECTION TO THE TAKING OF THEIR LANDS BECAUSE IT THEN ASSUMED THAT
"OTHER LANDS ARE AVAILABLE FOR RESERVOIR USE IF THE APPLICANT IS UNABLE
TO ACQUIRE THE INDIAN LANDS."  BUT THE COMMISSION DID DIRECT THE
LICENSEE TO REVISE ITS EXHIBIT COVERING THE RESERVOIR, TO MORE
DEFINITELY SHOW THE AREA AND ACREAGE INVOLVED, AND TO RESUBMIT IT TO
THE COMMISSION FOR APPROVAL WITHIN A STATED TIME. 

IN ITS APPLICATION FOR REHEARING, THE TUSCARORA INDIAN NATION
CONTENDED, AMONG OTHER THINGS, THAT THE PORTION OF ITS LANDS SOUGHT TO
BE TAKEN FOR THE RESERVOIR WAS PART OF A "RESERVATION," AS DEFINED IN
SEC. 3(2), AND AS USED IN SEC. 4(E), OF THE FEDERAL POWER ACT, (FN11)
AND THEREFORE COULD NOT LAWFULLY BE TAKEN FOR RESERVOIR PURPOSES IN THE
ABSENCE OF A FINDING BY THE COMMISSION "THAT THE LICENSE WILL NOT
INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH
RESERVATION WAS CREATED OR ACQUIRED."  BY ITS ORDER OF MARCH 21, 1958,
DENYING THAT APPLICATION FOR REHEARING, THE COMMISSION FOUND THAT "THE
BEST LOCATION OF THE RESERVOIR WOULD REQUIRE APPROXIMATELY 1,000 ACRES
OF LAND OWNED BY INTERVENER," AND IT HELD THAT THE INDIAN LANDS
INVOLVED "ARE NOT PART OF A 'RESERVATION' REFERRED TO IN SECTION 4(E)
AS DEFINED IN SECTION 3(2) OF THE FEDERAL POWER ACT AND THE FINDING
SUGGESTED BY INTERVENER IS NOT REQUIRED."  ON MAY 5, 1958, THE
COMMISSION ISSUED ITS ORDER APPROVING THE LICENSEE'S REVISED EXHIBIT
WHICH PRECISELY DELINEATED THE LOCATION, AREA, AND ACREAGE TO BE
EMBRACED BY THE RESERVOIR - WHICH INCLUDED 1,383 ACRES OF THE
TUSCARORAS' LANDS. 

ON MAY 16, 1958, THE TUSCARORA INDIAN NATION FILED A PETITION FOR
REVIEW IN THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
CHALLENGING THE LICENSE ISSUED BY THE COMMISSION ON JANUARY 30, 1958,
INSOFAR AS IT WOULD AUTHORIZE THE TAKING OF TUSCARORA LANDS.  (FN12)
BY ITS OPINION AND INTERIM JUDGMENT OF NOVEMBER 14, 1958, THE COURT OF
APPEALS HELD THAT THE TUSCARORA LANDS SOUGHT TO BE TAKEN FOR THE
RESERVOIR CONSTITUTE A PART OF A "RESERVATION" WITHIN THE MEANING OF
SECS. 3(2) AND 4(E) OF THE FEDERAL POWER ACT, AND THAT THE COMMISSION
MAY NOT INCLUDE THOSE LANDS IN THE LICENSE IN THE ABSENCE OF A SEC.
4(E) FINDING THAT THEIR TAKING "WILL NOT INTERFERE OR BE INCONSISTENT
WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED,"
AND THE COURT REMANDED THE CASE TO THE COMMISSION THAT IT MIGHT
"EXPLORE THE POSSIBILITY OF MAKING THAT FINDING."  105 U.S. APP. D.C.
146, 265 F.2D 338. 

UPON REMAND, THE COMMISSION HELD EXTENSIVE HEARINGS, EXPLORING NOT
ONLY THE MATTER OF THE MAKING OF THE FINDING HELD NECESSARY BY THE
COURT OF APPEALS BUT ALSO THE POSSIBILITY OF LOCATING THE RESERVOIR ON
OTHER LANDS.  IN ITS ORDER OF FEBRUARY 2, 1959, THE COMMISSION FOUND
THAT THE USE OF OTHER LANDS FOR THE RESERVOIR WOULD RESULT IN GREAT
DELAY, SEVERE COMMUNITY DISRUPTION, AND UNREASONABLE EXPENSE; THAT A
RESERVOIR WITH USABLE STORAGE CAPACITY OF 60,000 ACRE-FEET IS REQUIRED
TO UTILIZE ALL OF THE UNITED STATES' SHARE OF THE WATER OF THE NIAGARA
RIVER, AS REQUIRED BY PUBLIC LAW 85-159; THAT REMOVAL OF THE RESERVOIR
FROM THE TUSCARORA LANDS BY REDUCING THE AREA OF THE RESERVOIR WOULD
REDUCE THE USABLE STORAGE CAPACITY FROM 60,000 ACRE-FEET TO 30,000 ACRE
FEET AND RESULT IN A LOSS OF ABOUT 300,000 KILOWATTS OF DEPENDABLE
CAPACITY.  BUT IT CONCLUDED THAT, ALTHOUGH OTHER LANDS CONTIGUOUS TO
THEIR RESERVATION MIGHT BE ACQUIRED BY THE TUSCARORAS, (FN13) THE
TAKING OF THE 1,383 ACRES OF TUSCARORA LANDS FOR THE RESERVOIR "WOULD
INTERFERE AND WOULD BE INCONSISTENT WITH THE PURPOSE FOR WHICH THE
RESERVATION WAS CREATED OR ACQUIRED."  THAT ORDER WAS TRANSMITTED TO
THE COURT OF APPEALS WHICH, ON MARCH 24, 1959, AFTER CONSIDERING
VARIOUS MOTIONS OF THE PARTIES, ENTERED ITS FINAL JUDGMENT APPROVING
THE LICENSE EXCEPT INSOFAR AS IT WOULD AUTHORIZE THE TAKING OF
TUSCARORA LANDS FOR THE RESERVOIR, AND REMANDED THE CASE TO THE
COMMISSION WITH INSTRUCTIONS TO AMEND THE LICENSE "TO EXCLUDE
SPECIFICALLY THE POWER OF THE SAID POWER AUTHORITY TO CONDEMN THE SAID
LANDS OF THE TUSCARORA INDIANS FOR RESERVOIR PURPOSES."  105 U.S. APP.
D.C., AT 152, 265 F.2D, AT 344. 

BECAUSE OF CONFLICT BETWEEN THE VIEWS OF THE COURT BELOW AND THOSE OF
THE SECOND CIRCUIT, AND OF THE GENERAL IMPORTANCE OF THE QUESTIONS
INVOLVED, WE GRANTED CERTIORARI.  360 U.S. 915. 

THE PARTIES HAVE URGED UPON US A NUMBER OF CONTENTIONS, BUT WE THINK
THESE CASES TURN UPON THE ANSWERS TO TWO QUESTIONS, NAMELY, (1) WHETHER
THE TUSCARORA LANDS COVERED BY THE COMMISSION'S LICENSE ARE PART OF A
"RESERVATION" AS DEFINED AND USED IN THE FEDERAL POWER ACT, 16 U.S.C.
SEC. 791A ET SEQ., AND, IF NOT, (2) WHETHER THOSE LANDS MAY BE
CONDEMNED BY THE LICENSEE, UNDER THE EMINENT DOMAIN POWERS CONFERRED BY
SEC. 21 OF THE FEDERAL POWER ACT, 16 U.S.C. SEC. 814.  WE NOW TURN TO A
CONSIDERATION OF THOSE QUESTIONS IN THE ORDER STATED. 
                       I. 

A COMMISSION FINDING THAT "THE LICENSE WILL NOT INTERFERE OR BE
INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR
ACQUIRED" IS REQUIRED BY SEC. 4(E) OF THE FEDERAL POWER ACT, 16 U.S.C.
SEC. 797(E), ONLY IF THE LANDS INVOLVED ARE WITHIN A "RESERVATION" IN
THE SENSE OF THAT TERM AS DEFINED AND USED IN THAT ACT.  THAT BY
GENERALLY ACCEPTED STANDARDS AND COMMON UNDERSTANDING THESE TUSCARORA
LANDS MAY BE PART OF A "RESERVATION" IS NOT AT ALL DECISIVE OF WHETHER
THEY ARE SUCH WITHIN THE MEANING OF THE FEDERAL POWER ACT.  CONGRESS
WAS FREE AND COMPETENT ARTIFICIALLY TO DEFINE THE TERM "RESERVATIONS"
FOR THE PURPOSES IT PRESCRIBED IN THAT ACT.  AND WE ARE BOUND TO GIVE
EFFECT TO ITS DEFINITION OF THAT TERM, FOR IT WOULD BE IDLE FOR
CONGRESS TO DEFINE THE SENSE IN WHICH IT USED IT "IF WE WERE FREE IN
DESPITE OF IT TO CHOOSE A MEANING FOR OURSELVES."  FOX V. STANDARD OIL
CO., 294 U.S. 87, 96.  BY SEC. 3(2) OF THE FEDERAL POWER ACT, 16 U.S.C.
SEC. 796(2), CONGRESS HAS PROVIDED: 

"SEC. 3.  THE WORDS DEFINED IN THIS SECTION SHALL HAVE THE FOLLOWING
MEANINGS FOR PURPOSES OF THIS ACT, TO WIT: 

     *         *       *         *         * 

"(2)  'RESERVATIONS' MEANS NATIONAL FORESTS, TRIBAL LANDS EMBRACED
WITHIN INDIAN RESERVATIONS, MILITARY RESERVATIONS, AND OTHER LANDS AND
INTERESTS IN LANDS OWNED BY THE UNITED STATES, AND WITHDRAWN, RESERVED,
OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC
LAND LAWS; ALSO LANDS AND INTERESTS IN LANDS ACQUIRED AND HELD FOR ANY
PUBLIC PURPOSE; BUT SHALL NOT INCLUDE NATIONAL MONUMENTS OR NATIONAL
PARKS." 

THE PLAIN WORDS OF THIS DEFINITION SEEM RATHER CLEARLY TO SHOW THAT
CONGRESS INTENDED THE TERM "RESERVATIONS," WHEREVER USED IN THE ACT, TO
EMBRACE ONLY "LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED
STATES." 

TURNING TO THE DEFINITION'S LEGISLATIVE HISTORY, WE FIND THAT IT,
TOO, STRONGLY INDICATES THAT SUCH WAS THE CONGRESSIONAL INTENTION.  IN
THE ORIGINAL DRAFT BILL OF THE FEDERAL WATER POWER ACT OF 1920, AS
PROPOSED BY THE ADMINISTRATION AND PASSED BY THE HOUSE IN THE SIXTY
FIFTH AND SIXTY-SIXTH CONGRESSES, THE TERM WAS DEFINED AS FOLLOWS: 

"'RESERVATIONS' MEANS LANDS AND INTEREST IN LANDS OWNED BY THE UNITED
STATES AND WITHDRAWN, RESERVED, OR WITHHELD FROM PRIVATE APPROPRIATION
AND DISPOSAL UNDER THE PUBLIC-LAND LAWS, AND LANDS AND INTEREST IN
LANDS ACQUIRED AND HELD FOR ANY PUBLIC PURPOSE."  (FN14) 

IT IS DIFFICULT TO PERCEIVE HOW CONGRESSIONAL INTENTION COULD BE MORE
CLEARLY AND DEFINITELY EXPRESSED.  HOWEVER, AFTER THE BILL REACHED THE
SENATE IT INSERTED THE WORDS "NATIONAL MONUMENTS, NATIONAL PARKS,
NATIONAL FORESTS, TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS,
MILITARY RESERVATIONS, AND OTHER" AT THE BEGINNING OF THE DEFINITION. 
(FN15)  WHEN THE BILL WAS RETURNED TO THE HOUSE IT WAS EXPLAINED THAT
THE SENATE'S "AMENDMENT RECASTS THE HOUSE DEFINITION OF
'RESERVATIONS.'"  (FN16)  THE BILL AS ENACTED CONTAINED THE DEFINITION
AS THUS RECAST.  IT REMAINS IN THAT FORM, EXCEPT FOR THE DELETION OF
THE WORDS "NATIONAL MONUMENTS, NATIONAL PARKS," WHICH WAS OCCASIONED BY
THE ACT OF MARCH 3, 1921 (41 STAT. 1353), NEGATING COMMISSION AUTHORITY
TO LICENSE ANY PROJECT WORKS WITHIN "NATIONAL MONUMENTS OR NATIONAL
PARKS," AND THOSE WORDS WERE FINALLY DELETED FROM THE DEFINITION BY
AMENDMENT IN 1935.  49 STAT. 838.  IT SEEMS ENTIRELY CLEAR THAT NO
CHANGE IN SUBSTANCE WAS INTENDED OR EFFECTED BY THE SENATE'S AMENDMENT,
AND THAT ITS "RECASTING" ONLY SPECIFIED, AS ILLUSTRATIVE, SOME OF THE
"RESERVATIONS" ON "LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED
STATES." 

FURTHER EVIDENCE THAT CONGRESS INTENDED TO LIMIT "RESERVATIONS," FOR
THE "PURPOSES OF THIS ACT" (SEC. 3), TO THOSE LOCATED ON "LANDS OWNED
BY THE UNITED STATES" OR IN WHICH IT OWNS AN INTEREST IS FURNISHED BY
ITS USE OF THE TERM IN THE CONTEXT OF SEC. 4(E) OF THE ACT.  BY THAT
IN STREAMS OR OTHER BODIES OF WATER OVER WHICH IT HAS JURISDICTION
UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION (ART. I, SEC. 8, CL. 3),
AUTHORIZED THE COMMISSION TO LICENSE PROJECTS "UPON ANY PART OF THE
PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES."  CONGRESS MUST BE
DEEMED TO HAVE KNOWN, AS THIS COURT HELD IN FEDERAL POWER COMM'N V.
OREGON, 349 U.S. 435, 443, THAT THE LICENSING POWER, "IN RELATION TO
PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES SPRINGS FROM THE
PROPERTY CLAUSE" OF THE CONSTITUTION - NAMELY, THE "  ...  POWER TO
DISPOSE OF AND MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE
TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES  ...  ." 
ART. IV,  SEC. 3, CL. 2.  IN THUS ACTING UNDER THE PROPERTY CLAUSE OF
THE CONSTITUTION, CONGRESS MUST HAVE INTENDED TO DEAL ONLY WITH "THE
TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES."  IBID. 

MOREOVER, THE FEDERAL POWER ACT'S PLAN OF COMPENSATING FOR LANDS
TAKEN OR USED FOR LICENSED PROJECTS IS EXPLICABLE ONLY IF THE TERM
"RESERVATIONS" IS CONFINED, AS CONGRESS EVIDENTLY INTENDED, TO THOSE
LOCATED ON "LANDS OWNED BY THE UNITED STATES" OR IN WHICH IT OWNS A
PROPRIETARY INTEREST.  BY SEC. 21, 16 U.S.C. SEC. 814, LICENSEES ARE
AUTHORIZED TO ACQUIRE "THE LANDS OR PROPERTY OF OTHERS NECESSARY TO
THE" LICENSED PROJECT "BY THE EXERCISE OF THE RIGHT OF EMINENT DOMAIN"
IN THE FEDERAL OR STATE COURTS, AND, OF COURSE, UPON THE PAYMENT OF
JUST COMPENSATION.  BUT, DESPITE ITS GENERAL AND ALL-INCLUSIVE TERMS,
SEC. 21 DOES NOT APPLY TO NOR AUTHORIZE CONDEMNATION OF LANDS OR
INTERESTS IN LANDS OWNED BY THE UNITED STATES, BECAUSE SEC. 10(E) OF
THE ACT, 16 U.S.C. SEC. 803(E), EXPRESSLY PROVIDES THAT "THE LICENSEE
SHALL PAY TO THE UNITED STATES REASONABLE ANNUAL CHARGES  ...  FOR
RECOMPENSATING IT FOR THE USE, OCCUPANCY, AND ENJOYMENT OF ITS LANDS OR
OTHER PROPERTY" DEVOTED TO THE LICENSED PROJECT.  IT THEREFORE APPEARS
TO BE UNMISTAKABLY CLEAR THAT BY THE LANGUAGE OF THE FIRST PROVISO OF
THAT SECTION SAYING, IN PERTINENT PART, "THAT WHEN LICENSES ARE ISSUED
INVOLVING THE USE OF GOVERNMENT DAMS OR OTHER STRUCTURES OWNED BY THE
UNITED STATES OR TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS THE
COMMISSION SHALL  ...  FIX A REASONABLE ANNUAL CHARGE FOR THE USE
THEREOF  ...  ," CONGRESS INTENDED TO TREAT AND TREATED ONLY WITH
STRUCTURES, LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES,
FOR, AS STATED, THE SECTION EXPRESSLY REQUIRES THE "REASONABLE ANNUAL
CHARGES" TO BE PAID TO THE UNITED STATES FOR THE USE, OCCUPANCY, AND
ENJOYMENT OF "ITS LANDS OR OTHER PROPERTY." 

THIS ANALYSIS OF THE PLAIN WORDS AND LEGISLATIVE HISTORY OF THE ACT'S
DEFINITION OF "RESERVATIONS" AND OF THE PLAN AND PROVISIONS OF THE ACT
LEAVES US WITH NO DOUBT THAT CONGRESS, "FOR PURPOSES OF THIS ACT" (SEC.
3(2)), INTENDED TO AND DID CONFINE "RESERVATIONS," INCLUDING "TRIBAL
LANDS EMBRACED WITHIN INDIAN RESERVATIONS" (SEC. 3(2)), TO THOSE
LOCATED ON LANDS "OWNED BY THE UNITED STATES" (SEC. 3(2)), OR IN WHICH
IT OWNS A PROPRIETARY INTEREST. 

THE COURT OF APPEALS DID NOT FIND TO THE CONTRARY.  INDEED, IT FOUND
THAT THE ACT'S DEFINITION OF "RESERVATIONS" INCLUDES ONLY THOSE LOCATED
ON LANDS IN WHICH THE UNITED STATES "HAS AN INTEREST."  BUT IT THOUGHT
THAT THE NATIONAL PATERNAL RELATIONSHIP TO THE INDIANS AND THE
GOVERNMENT'S CONCERN TO PROTECT THEM AGAINST IMPROPER ALIENATION OF
THEIR LANDS GAVE THE UNITED STATES THE REQUISITE "INTEREST" IN THE
LANDS HERE INVOLVED, AND THAT THE RESULT "MUST THE THE SAME AS IF THE
PHRASE 'OWNED BY THE UNITED STATES, ETC.' WERE NOT CONSTRUED AS A
LIMITATION UPON THE TERM 'TRIBAL LANDS ETC.'"  105 U.S. APP. D.C., AT
150, 265 F.2D, AT 342.  WE DO NOT AGREE.  THE NATIONAL "INTEREST" IN
INDIAN WELFARE AND PROTECTION "IS NOT TO BE EXPRESSED IN TERMS OF
PROPERTY  ...  ."  HECKMAN V. UNITED STATES, 224 U.S. 413, 437.  THE
NATIONAL "PATERNAL INTEREST" IN THE WELFARE AND PROTECTION OF INDIANS
IS NOT THE "INTERESTS IN LANDS OWNED BY THE UNITED STATES" REQUIRED, AS
AN ELEMENT OF "RESERVATIONS," BY SEC. 3(2) OF THE FEDERAL POWER ACT. 

INASMUCH AS THE LANDS INVOLVED ARE OWNED IN FEE SIMPLE BY THE
TUSCARORA INDIAN NATION AND NO "INTEREST" IN THEM IS "OWNED BY THE
UNITED STATES," WE HOLD THAT THEY ARE NOT WITHIN A "RESERVATION" AS
THAT THEM IS DEFINED AND USED IN THE FEDERAL POWER ACT, AND THAT A
COMMISSION FINDING UNDER SEC. 4(E) OF THAT ACT "THAT THE LICENSE WILL
NOT INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH
RESERVATION WAS CREATED OR ACQUIRED" IS NOT NECESSARY TO THE ISSUANCE
OF A LICENSE EMBRACING THE TUSCARORA LANDS NEEDED FOR THE PROJECT. 

                                         II. 

WE PASS NOW TO THE QUESTION WHETHER THE PORTION OF THE TUSCARORA
LANDS HERE INVOLVED MAY BE CONDEMNED BY THE LICENSEE UNDER THE
PROVISIONS AND EMINENT DOMAIN POWERS OF SEC. 21 OF THE FEDERAL POWER
ACT.  PETITIONERS CONTEND THAT SEC. 21 IS A BROAD GENERAL STATUTE
AUTHORIZING CONDEMNATION OF "THE LANDS OR PROPERTY OF OTHERS NECESSARY
TO THE CONSTRUCTION, MAINTENANCE, OR OPERATION OF ANY" LICENSED
PROJECT, AND THAT LANDS OWNED BY INDIANS IN FEE SIMPLE, NOT BEING
EXCLUDED, MAY BE TAKEN BY THE LICENSEE UNDER THE FEDERAL EMINENT DOMAIN
POWERS DELEGATED TO IT BY THAT SECTION.  PARRYING THIS CONTENTION, THE
TUSCARORA INDIAN NATION ARGUES THAT SEC. 21, BEING ONLY A GENERAL ACT
OF CONGRESS, DOES NOT APPLY TO INDIANS OR THEIR LANDS. 

THE TUSCARORA INDIAN NATION HEAVILY RELIES UPON ELK V. WILKINS, 112
U.S. 94.  IT IS TRUE THAT IN THAT CASE THE COURT, DEALING WITH THE
QUESTION WHETHER A NATIVE-BORN AMERICAN INDIAN WAS MADE A CITIZEN OF
THE UNITED STATES BY THE FOURTEENTH AMENDMENT OF THE CONSTITUTION,
SAID:  "UNDER THE CONSTITUTION OF THE UNITED STATES, AS ORIGINALLY
ESTABLISHED  ...  GENERAL ACTS OF CONGRESS DID NOT APPLY TO INDIANS,
UNLESS SO EXPRESSED AS TO CLEARLY MANIFEST AN INTENTION TO INCLUDE
THEM."  112 U.S., AT 99-100.  HOWEVER THAT MAY HAVE BEEN, IT IS NOW
WELL SETTLED BY MANY DECISIONS OF THIS COURT THAT A GENERAL STATUTE IN
TERMS APPLYING TO ALL PERSONS INCLUDES INDIANS AND THEIR PROPERTY
INTERESTS.  IN SUPERINTENDENT OF FIVE CIVILIZED TRIBES V. COMMISSIONER,
295 U.S. 418, THE FUNDS OF A RESTRICTED CREEK INDIAN WERE HELD AND
INVESTED FOR HIM BY THE SUPERINTENDENT, AND A QUESTION AROSE AS TO
WHETHER INCOME FROM THE INVESTMENT WAS SUBJECT TO FEDERAL INCOME
TAXES.  IN AN EARLIER CASE, BLACKBIRD V. COMMISSIONER, 38 F.2D 976, THE
TENTH CIRCUIT HAD HELD SUCH INCOME TO BE EXEMPT FROM FEDERAL INCOME
TAXATION.  BUT IN THIS CASE THE BOARD OF TAX APPEALS SUSTAINED THE TAX,
THE TENTH CIRCUIT AFFIRMED, AND THE SUPERINTENDENT BROUGHT THE CASE
HERE.  THIS COURT OBSERVED THAT IN THE BLACKBIRD CASE THE TENTH CIRCUIT
HAD SAID THAT TO HOLD A GENERAL ACT OF CONGRESS TO BE APPLICABLE TO
RESTRICTED INDIANS "WOULD BE CONTRARY TO THE ALMOST UNBROKEN POLICY OF
CONGRESS IN DEALING WITH ITS INDIAN WARDS AND THEIR AFFAIRS.  WHENEVER
THEY AND THEIR INTERESTS HAVE BEEN THE SUBJECT AFFECTED BY LEGISLATION
THEY HAVE BEEN NAMED AND THEIR INTERESTS SPECIFICALLY DEALT WITH." 
THAT IS PRECISELY THE ARGUMENT NOW MADE HERE BY THE TUSCARORA INDIAN
NATION.  BUT THIS COURT, IN AFFIRMING THE JUDGMENT, SAID: 

"THIS DOES NOT HARMONIZE WITH WHAT WE SAID IN CHOTEAU V. BURNET
(1931), 283 U.S. 691, 693, 696: 

"'THE LANGUAGE OF THE INTERNAL REVENUE ACT OF 1918 SUBJECTS THE
INCOME OF "EVERY INDIVIDUAL" TO TAX.  SECTION 213(A) INCLUDES INCOME
"FROM ANY SOURCE WHATEVER."  THE INTENT OF CONGRESS WAS TO LEVY THE TAX
WITH RESPECT TO ALL RESIDENTS OF THE UNITED STATES AND UPON ALL SORTS
OF INCOME.  THE ACT DOES NOT EXPRESSLY EXEMPT THE SORT OF INCOME HERE
INVOLVED, NOR A PERSON HAVING PETITIONER'S STATUS RESPECTING SUCH
INCOME, AND WE ARE NOT REFERRED TO ANY OTHER STATUTE WHICH DOES  ...  .
THE INTENT TO EXCLUDE MUST BE DEFINITELY EXPRESSED, WHERE, AS HERE,
THE LANGUAGE OF THE ACT LAYING THE TAX IS BROAD ENOUGH TO INCLUDE THE
SUBJECT MATTER.' 

"THE COURT BELOW PROPERLY DECLINED TO FOLLOW ITS QUOTED PRONOUNCEMENT
IN BLACKBIRD'S CASE.  THE TERMS OF THE 1928 REVENUE ACT ARE VERY BROAD,
AND NOTHING THERE INDICATES THAT INDIANS ARE TO BE EXCEPTED.  SEE IRWIN
V. GAVIT, 268 U.S. 161; HEINER V. COLONIAL TRUST CO., 275 U.S. 232;
HELVERING V. STOCKHOLMS ENSKILDA BANK, 293 U.S. 84; PITMAN V.
COMMISSIONER, 64 F.(2D) 740.  THE PURPOSE IS SUFFICIENTLY CLEAR."  295
U.S., AT 419-420. 

IN OKLAHOMA TAX COMM'N V. UNITED STATES, 319 U.S. 598, THIS COURT, IN
HOLDING THAT THE ESTATE OF A RESTRICTED OKLAHOMA INDIAN WAS SUBJECT TO
STATE INHERITANCE AND ESTATE TAXES UNDER GENERAL STATE STATUTES, SAID: 

"THE LANGUAGE OF THE STATUTES DOES NOT EXCEPT EITHER INDIANS OR ANY
OTHER PERSONS FROM THEIR SCOPE.  319 U.S., AT 600.  IF CONGRESS INTENDS
TO PREVENT THE STATE OF OKLAHOMA FROM LEVYING A GENERAL
NONDISCRIMINATORY ESTATE TAX APPLYING ALIKE TO ALL ITS CITIZENS, IT
SHOULD SAY SO IN PLAIN WORDS.  SUCH A CONCLUSION CANNOT REST ON DUBIOUS
INFERENCES."  319 U.S., AT 607. 

SEE, E.G., SHAW V. GIBSON-ZAHNISER OIL CORPORATION, 276 U.S. 575, 581
582; UNITED STATES V. RANSOM, 263 U.S. 691; KENNEDY V. BECKER, 241 U.S.
556, 563-564; CHOATE V. TRAPP, 224 U.S. 665, 673. 

THE FEDERAL POWER ACT CONSTITUTES A COMPLETE AND COMPREHENSIVE PLAN
FOR THE DEVELOPMENT AND IMPROVEMENT OF NAVIGATION AND FOR THE
DEVELOPMENT, TRANSMISSION AND UTILIZATION OF ELECTRIC POWER IN ANY OF
THE STREAMS OR OTHER BODIES OF WATER OVER WHICH CONGRESS HAS
JURISDICTION UNDER ITS COMMERCE POWERS, AND UPON THE PUBLIC LANDS AND
RESERVATIONS OF THE UNITED STATES UNDER ITS PROPERTY POWERS.  SEE SEC.
4(E).  IT NEITHER OVERLOOKS NOR EXCLUDES INDIANS OR LANDS OWNED OR
OCCUPIED BY THEM.  INSTEAD, AS HAS BEEN SHOWN, THE ACT SPECIFICALLY
DEFINES AND TREATS WITH LANDS OCCUPIED BY INDIANS - "TRIBAL LANDS
EMBRACED WITHIN INDIAN RESERVATIONS."  SEE SECS. 3(2) AND 10(E).  THE
ACT GIVES EVERY INDICATION THAT, WITHIN ITS COMPREHENSIVE PLAN,
CONGRESS INTENDED TO INCLUDE LANDS OWNED OR OCCUPIED BY ANY PERSON OR
PERSONS, INCLUDING INDIANS.  THE COURT OF APPEALS RECOGNIZED THAT THIS
IS SO.  105 U.S. APP. D.C., AT 151, 265 F.2D, AT 343.  SECTION 21 OF
THE ACT, BY BROAD GENERAL TERMS, AUTHORIZES THE LICENSEE TO CONDEMN
"THE LANDS OR PROPERTY OF OTHERS NECESSARY TO THE CONSTRUCTION,
MAINTENANCE, OR OPERATION OF ANY" LICENSED PROJECT.  THAT SECTION DOES
NOT EXCLUDE LANDS OR PROPERTY OWNED BY INDIANS, AND, UPON THE AUTHORITY
OF THE CASES CITED, WE MUST HOLD THAT IT APPLIES TO THESE LANDS OWNED
IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION.    THE TUSCARORA INDIAN
NATION INSISTS THAT EVEN IF ITS LANDS ARE EMBRACED BY THE TERMS OF SEC.
21 OF THE FEDERAL POWER ACT, THEY STILL MAY NOT BE TAKEN FOR PUBLIC USE
"WITHOUT THE EXPRESS CONSENT OF CONGRESS REFERRING SPECIFICALLY TO
THOSE LANDS," BECAUSE OF THE PROVISIONS OF 25 U.S.C. SEC. 177.  (FN17)
THAT SECTION, IN PERTINENT PART, PROVIDES: 

"NO PURCHASE, GRANT, LEASE, OR OTHER CONVEYANCE OF LANDS, OR OF ANY
TITLE OR CLAIM THERETO, FROM ANY INDIAN NATION OR TRIBE OF INDIANS,
SHALL BE OF ANY VALIDITY IN LAW OR EQUITY, UNLESS THE SAME BE MADE BY
TREATY OR CONVENTION ENTERED INTO PURSUANT TO THE CONSTITUTION  ...
." 

THE OBVIOUS PURPOSE OF THAT STATUTE IS TO PREVENT UNFAIR, IMPROVIDENT
OR IMPROPER DISPOSITION BY INDIANS OF LANDS OWNED OR POSSESSED BY THEM
TO OTHER PARTIES, EXCEPT THE UNITED STATES, WITHOUT THE CONSENT OF
CONGRESS, AND TO ENABLE THE GOVERNMENT, ACTING AS PARENS PATRIAE FOR
THE INDIANS, TO VACATE ANY DISPOSITION OF THEIR LANDS MADE WITHOUT ITS
CONSENT.  SEE, E.G., UNITED STATES V. HELLARD, 322 U.S. 363; UNITED
STATES V. CANDELARIA, 271 U.S. 432, 441-442; HENKEL V. UNITED STATES,
237 U.S. 43, 51; UNITED STATES V. SANDOVAL, 231 U.S. 28, 46-48.  BUT
THERE IS NO SUCH REQUIREMENT WITH RESPECT TO CONVEYANCES TO OR
CONDEMNATIONS BY THE UNITED STATES OR ITS LICENSEES; "NOR IS IT
CONCEIVABLE THAT IT IS NECESSARY, FOR THE INDIANS ARE SUBJECT ONLY TO
THE SAME RULE OF LAW AS ARE OTHERS IN THE STATE  ...  ."  UNITED STATES
V. OKLAHOMA GAS CO., 318 U.S. 206, 211. 

AS TO THE TUSCARORAS' CONTENTION THAT SEC. 177 PROHIBITS THE TAKING
OF ANY OF THEIR LANDS FOR THE RESERVOIR "WITHOUT THE EXPRESS AND
SPECIFIC CONSENT OF CONGRESS," ONE THING IS CERTAIN.  IT IS CERTAIN
THAT IF SEC. 177 IS APPLICABLE TO ALIENATIONS EFFECTED BY CONDEMNATION
PROCEEDINGS UNDER SEC. 21 OF THE FEDERAL POWER ACT, THE MERE "EXPRESSED
CONSENT" OF CONGRESS WOULD BE VAIN AND IDLE.  FOR SEC. 177 AT THE VERY
LEAST CONTEMPLATES THE ASSENT OF THE INDIAN NATION OR TRIBE.  AND
INASMUCH AS THE TUSCARORA INDIAN NATION WITHHOLDS SUCH CONSENT AND
REFUSES TO CONVEY TO THE LICENSEE ANY OF ITS LANDS, IT FOLLOWS THAT THE
MERE CONSENT OF CONGRESS, HOWEVER EXPRESS AND SPECIFIC, WOULD AVAIL
NOTHING.  THEREFORE, IF SEC. 177 IS APPLICABLE TO ALIENATIONS EFFECTED
BY CONDEMNATION UNDER SEC. 21 OF THE FEDERAL POWER ACT, THE RESULT
WOULD BE THAT THE TUSCARORA LANDS, HOWEVER IMPERATIVE FOR THE PROJECT,
COULD NOT BE TAKEN AT ALL. 

BUT SEC. 177 IS NOT APPLICABLE TO THE SOVEREIGN UNITED STATES NOR,
HENCE, TO ITS LICENSEES TO WHOM CONGRESS HAS DELEGATED FEDERAL EMINENT
DOMAIN POWERS UNDER SEC. 21 OF THE FEDERAL POWER ACT.  THE LAW IS NOW
WELL SETTLED THAT: 

"A GENERAL STATUTE IMPOSING RESTRICTIONS DOES NOT IMPOSE THEM UPON
THE GOVERNMENT ITSELF WITHOUT A CLEAR EXPRESSION OR IMPLICATION TO THAT
EFFECT."  UNITED STATES V. WITTEK, 337 U.S. 346, 358-359. 

IN UNITED STATES V. UNITED MINE WORKERS OF AMERICA, 330 U.S. 258, 272
273, THE COURT SAID: 

"THERE IS AN OLD AND WELL-KNOWN RULE THAT STATUTES WHICH IN GENERAL
TERMS DIVEST PRE-EXISTING RIGHTS OR PRIVILEGES WILL NOT BE APPLIED TO
THE SOVEREIGN WITHOUT EXPRESS WORDS TO THAT EFFECT." 

SEE, E.G., LEITER MINERALS, INC., V. UNITED STATES, 352 U.S. 220, 224
225; UNITED STATES V. WYOMING, 331 U.S. 440, 449; UNITED STATES V.
STEVENSON, 215 U.S. 190; UNITED STATES V. AMERICAN BELL TELEPHONE CO.,
159 U.S. 548, 553-555; LEWIS V. UNITED STATES, 92 U.S. 618, 622; UNITED
STATES V. HERRON, 20 WALL.  251, 263; DOLLAR SAVINGS BANK V. UNITED
STATES, 19 WALL.  227, 239. 

THIS COURT HAS SEVERAL TIMES APPLIED, IN COMBINATION, THE RULES (1)
THAT GENERAL ACTS OF CONGRESS APPLY TO INDIANS AS WELL AS TO ALL OTHERS
IN THE ABSENCE OF A CLEAR EXPRESSION TO THE CONTRARY, AND (2) THAT
GENERAL STATUTES IMPOSING RESTRICTIONS DO NOT APPLY TO THE GOVERNMENT
ITSELF WITHOUT A CLEAR EXPRESSION TO THAT EFFECT.  IT DID SO IN HENKEL
V. UNITED STATES, 237 U.S. 43 (SUSTAINING THE RIGHT OF THE UNITED
STATES TO TAKE INDIAN LANDS FOR RESERVOIR PURPOSES UNDER THE GENERAL
RECLAMATION ACT OF JUNE 17, 1902, 32 STAT. 388), IN SPALDING V.
CHANDLER, 160 U.S. 394 (SUSTAINING THE POWER OF THE GOVERNMENT TO
CONVEY A STRIP OF LAND THROUGH A TRACT OWNED BY AN INDIAN TRIBE TO ONE
CHANDLER FOR THE USE OF THE STATE OF MICHIGAN IN CONSTRUCTING A CANAL,
EVEN THOUGH THE CONVEYANCE WAS IN DEROGATION OF A TREATY WITH THE
INDIAN TRIBE), AND IN CHEROKEE NATION V. SOUTHERN KANSAS R. CO., 135
U.S. 641.  THERE, THIS COURT SUSTAINED THE RIGHT OF A LICENSEE OF THE
GOVERNMENT TO TAKE SO MUCH OF THE UNDESCRIBED FEE LANDS OF AN INDIAN
TRIBE AS WAS NECESSARY FOR THE LICENSED PROJECT, THOUGH IN DEROGATION
OF THE TERMS OF A TREATY BETWEEN THE UNITED STATES AND THE INDIAN
TRIBE, (FN18) SAYING: 

"IT WOULD BE VERY STRANGE IF THE NATIONAL GOVERNMENT, IN THE
EXECUTION OF ITS RIGHTFUL AUTHORITY, COULD EXERCISE THE POWER OF
EMINENT DOMAIN IN THE SEVERAL STATES, AND COULD NOT EXERCISE THE SAME
POWER IN A TERRITORY OCCUPIED BY AN INDIAN NATION OR TRIBE, THE MEMBERS
OF WHICH WERE WARDS OF THE UNITED STATES, AND DIRECTLY SUBJECT TO ITS
POLITICAL CONTROL.  THE LANDS IN THE CHEROKEE TERRITORY, LIKE THE LANDS
HELD BY PRIVATE OWNERS EVERYWHERE WITHIN THE GEOGRAPHICAL LIMITS OF THE
UNITED STATES, ARE HELD SUBJECT TO THE AUTHORITY OF THE GENERAL
GOVERNMENT TO TAKE THEM FOR SUCH OBJECTS AS ARE GERMANE TO THE
EXECUTION OF THE POWERS GRANTED TO IT; PROVIDED ONLY, THAT THEY ARE NOT
TAKEN WITHOUT JUST COMPENSATION BEING MADE TO THE OWNER."  135 U.S., AT
656-657. 

SEE ALSO LONE WOLF V. HITCHCOCK, 187 U.S. 553, 565; MISSOURI, KANSAS
& TEXAS R. CO. V. ROBERTS, 152 U.S. 114, 117-118; BEECHER V. WETHERBY,
95 U.S. 517; KOHL V. UNITED STATES, 91 U.S. 367. 

IN THE LIGHT OF THESE AUTHORITIES WE MUST HOLD THAT CONGRESS, BY THE
BROAD GENERAL TERMS OF SEC. 21 OF THE FEDERAL POWER ACT, HAS AUTHORIZED
THE FEDERAL POWER COMMISSION'S LICENSEES TO TAKE LANDS OWNED BY
INDIANS, AS WELL AS THOSE OF ALL OTHER CITIZENS, WHEN NEEDED FOR A
LICENSED PROJECT, UPON THE PAYMENT OF JUST COMPENSATION; THAT THE LANDS
IN QUESTION ARE NOT SUBJECT TO ANY TREATY BETWEEN THE UNITED STATES AND
THE TUSCARORAS (SEE NOTES 10 AND 18); AND THAT 25 U.S.C. SEC. 177 DOES
NOT APPLY TO THE UNITED STATES ITSELF NOR PROHIBIT IT, OR ITS LICENSEES
UNDER THE FEDERAL POWER ACT, FROM TAKING SUCH LANDS IN THE MANNER
PROVIDED BY SEC. 21, UPON THE PAYMENT OF JUST COMPENSATION. 

ALL MEMBERS OF THIS COURT - NO ONE MORE THAN ANY OTHER - ADHERE TO
THE CONCEPT THAT AGREEMENTS ARE MADE TO BE PERFORMED - NO LESS BY THE
GOVERNMENT THAN BY OTHERS - BUT THE FEDERAL EMINENT DOMAIN POWERS
CONFERRED BY CONGRESS UPON THE COMMISSION'S LICENSEE, BY SEC. 21 OF THE
FEDERAL POWER ACT, TO TAKE SUCH OF THE LANDS OF THE TUSCARORAS AS ARE
NEEDED FOR THE NIAGARA PROJECT DO NOT BREACH THE FAITH OF THE UNITED
STATES, OR ANY TREATY OR OTHER CONTRACTUAL AGREEMENT OF THE UNITED
STATES WITH THE TUSCARORA INDIAN NATION IN RESPECT TO THESE LANDS FOR
THE CONCLUSIVE REASON THAT THERE IS NONE.  REVERSED. 

FN1  1 U.S.T. 694. 

FN2  THE EXCESS FLOW OF WATER AVAILABLE FOR POWER PURPOSES UNDER THE
1950 TREATY WAS ESTIMATED TO FLUCTUATE BETWEEN 44,000 AND 210,000 CUBIC
FEET PER SECOND, DEPENDING ON THE FLOW, THE TIME OF YEAR, AND THE TIME
OF DAY.  S. REP. NO. 539, 85TH CONG., 1ST SESS., P. 4. 

THE 1950 TREATY SUPERSEDED THE BOUNDARY WATERS TREATY OF JANUARY 11,
1909 (TREATY SERIES 548, 36 STAT. 2448) WHICH LIMITED DIVERSIONS OF
WATER BY CANADA TO 36,000, AND BY THE UNITED STATES TO 20,000, CUBIC
FEET PER SECOND.  BEGINNING IN 1921, THE WATERS AVAILABLE TO THE UNITED
STATES UNDER THAT TREATY WERE UTILIZED BY NIAGARA MOHAWK POWER
CORPORATION IN ITS SCHOELLKOPF HYDROELECTRIC PLANT, UNDER A FEDERAL
LICENSE EXPIRING IN 1971.  THE RATED CAPACITY OF THAT PLANT WAS 360,000
KILOWATTS. 

FN3  S. REP. NO. 539, 85TH CONG., 1ST SESS., PP. 5-6. 

FN4  IBID. 

FN5  HEARINGS WERE HELD BEFORE THE SENATE COMMITTEE ON PUBLIC WORKS,
OR ITS SUBCOMMITTEE, IN THE EIGHTY-SECOND, EIGHTY-THIRD AND EIGHTY
FOURTH CONGRESSES, AND IN THE FIRST SESSION OF THE EIGHTY-FIFTH
CONGRESS; BEFORE THE HOUSE COMMITTEE ON PUBLIC WORKS IN THE FIRST
SESSIONS OF THE EIGHTY-FIRST AND EIGHTY-SECOND CONGRESSES, AND IN THE
FIRST AND SECOND SESSIONS OF THE EIGHTY-FOURTH CONGRESS.  JOINT
HEARINGS WERE HELD BY THE HOUSE COMMITTEE AND A SUBCOMMITTEE OF THE
SENATE COMMITTEE IN THE EIGHTY-THIRD CONGRESS, FIRST SESSION.  REPORTS
ON THESE BILLS WERE S. REP. NO. 2501, 83D CONG., 2D SESS.; H.R. REP.
NO. 713, 83D CONG., 1ST SESS.; S. REP.  NO. 1408, 84TH CONG., 2D SESS.;
H.R. REP. NO. 2635, 84TH CONG., 2D SESS.  THE COMMITTEE REPORTS ON THE
BILL WHICH WAS FINALLY ENACTED WERE S. REP. NO. 539, 85TH CONG., 1ST
SESS.; H.R. REP.  NO. 862, 85TH CONG., 1ST SESS. 

FN6  SEE NOTE 2. 

FN7  THE REPORT OF THE SENATE COMMITTEE ON PUBLIC WORKS OF JUNE 27,
1957, REPORTING OUT THE BILL THAT WAS FINALLY ADOPTED, CONTAINED THE
FOLLOWING STATEMENT: 

"THE PROPOSALS BY THE POWER AUTHORITY OF THE STATE OF NEW YORK AT
PRESENT CONTEMPLATE A PROJECT WITH A TOTAL INSTALLED CAPACITY OF
2,190,000 KILOWATTS.  OF THIS 1,800,000 WILL CONSTITUTE FIRM POWER ON A
17-HOUR-DAY BASIS.  THEY ANTICIPATE THAT IN ORDER TO ACHIEVE THIS
AMOUNT OF FIRM CAPACITY PUMP-STORAGE AND PUMPING-GENERATING FACILITIES
WILL BE REQUIRED."  S. REP. NO. 539, 85TH CONG., 1ST SESS., P. 5. 

THE REPORT OF THE HOUSE COMMITTEE ON PUBLIC WORKS OF JULY 23, 1957,
CONTAINED THE FOLLOWING STATEMENT: 

"AS A RESULT OF THE SCHOELLKOPF DISASTER, THE REDEVELOPMENT PROJECT
WILL BE ENLARGED SO AS TO DEVELOP THE WATER FORMERLY UTILIZED IN THE
DESTROYED PLANT.  THE PROPOSAL NOW CONTEMPLATES A PROJECT WITH A TOTAL
INSTALLED CAPACITY OF 2,190,000 KILOWATTS.  OF THIS 1,800,000 WILL
CONSTITUTE FIRM POWER ON A 17-HOUR-DAY BASIS.  IT IS ANTICIPATED THAT
IN ORDER TO ACHIEVE THIS AMOUNT OF FIRM CAPACITY, PUMP-STORAGE AND
PUMPING-GENERATING FACILITIES WILL BE REQUIRED."  H.R. REP. NO. 862,
85TH CONG., 1ST SESS., P. 7. 

FN8  THOSE SEVEN CONDITIONS RESOLVED THE PREVIOUSLY DISPUTED ISSUES
WHICH HAD SO LONG DELAYED CONGRESSIONAL AUTHORIZATION OF THE PROJECT. 
BY THOSE CONDITIONS, AT LEAST 50% OF THE PROJECT POWER MUST BE MADE
AVAILABLE TO PUBLIC BODIES AND NONPROFIT COOPERATIVES "AT THE LOWEST
RATES REASONABLY POSSIBLE," AND 20% OF THAT AMOUNT MUST BE MADE
AVAILABLE FOR USE IN NEIGHBORING STATES.  NIAGARA MOHAWK POWER
CORPORATION WAS GIVEN THE RIGHT TO PURCHASE 445,000 KILOWATTS FOR A
DESIGNATED PERIOD TO SUPPLY, AND "RESTORE LOW POWER COSTS TO," THE
CUSTOMERS OF ITS SCHOELLKOPF PLANT, IN EXCHANGE FOR RELINQUISHMENT OF
ITS FEDERAL LICENSE.  THE POWER AUTHORITY OF NEW YORK WAS AUTHORIZED TO
CONSTRUCT INDEPENDENT TRANSMISSION LINES TO REACH ITS PREFERENCE
CUSTOMERS AND TO CONTROL THE RESALE RATES OF DISTRIBUTORS PURCHASING
POWER FROM IT.  THE PROJECT WAS REQUIRED TO BEAR THE UNITED STATES'
SHARE OF THE COST OF REMEDIAL WORKS IN THE RIVER, AND, WITHIN A
DESIGNATED MAXIMUM SUM, THE COST OF A SCENIC DRIVE AND A PARK. 

FN9  THE PLANS EMBRACED BY THE APPLICATION FOR THE LICENSE CONSISTED,
IN GENERAL, OF (1) THE MAIN GENERATING PLANT ON THE EAST BANK OF THE
RIVER, (2) A PUMPING-GENERATING PLANT, LOCATED A SHORT DISTANCE EAST OF
THE MAIN GENERATING PLANT, (3) A STORAGE RESERVOIR, ADJACENT TO THE
PUMPING-GENERATING PLANT, HAVING A USABLE STORAGE CAPACITY OF 60,000
ACRE-FEET, AND COVERING ABOUT 2,800 ACRES, (4) A WATER INTAKE STRUCTURE
ON THE EAST BANK OF THE RIVER ABOUT THREE MILES ABOVE THE FALLS, AND
(5) A WATER CONVEYANCE SYSTEM EXTENDING FROM THE INTAKE TO A FOREBAY AT
THE PUMPING-GENERATING PLANT, AND FROM THE LATTER TO A FOREBAY AT THE
MAIN GENERATING PLANT. 

FN10  BECAUSE THE PROCEEDS OF THE SALE OF THE TUSCARORAS' NORTH
CAROLINA LANDS ($15,000) WERE PAYABLE IN THREE EQUAL ANNUAL
INSTALLMENTS AND WERE TO BE USED, SO FAR AS NECESSARY, FOR THE PAYMENT
OF THE PURCHASE PRICE OF THE NEW YORK LANDS ($13,752.80), WHICH WAS
ALSO PAYABLE IN THREE SUBSTANTIALLY EQUAL ANNUAL INSTALLMENTS, THE
LATTER LANDS WERE CONVEYED ON NOVEMBER 21, 1804, BY DEED OF THE HOLLAND
LAND COMPANY (WHICH ACKNOWLEDGED RECEIPT OF THE FIRST INSTALLMENT OF
THE PURCHASE PRICE, AND RESERVED A LIEN TO SECURE THE TWO UNPAID
INSTALLMENTS OF THE PURCHASE PRICE) TO HENRY DEARBORN "IN TRUST" FOR
THE "TUSCARORA NATION OF INDIANS AND THEIR ASSIGNS FOREVER  ...  THE
SAID HENRY DEARBORN AND HIS HEIRS TO GRANT AND CONVEY THE SAME IN FEE
SIMPLE OR OTHERWISE TO SUCH PERSON OR PERSONS AS THE SAID TUSCARORA
NATION OF INDIANS SHALL AT ANY TIME HEREAFTER DIRECT AND APPOINT." 
AFTER COLLECTION OF THE REMAINING INSTALLMENTS OF THE PURCHASE PRICE OF
THE TUSCARORAS' NORTH CAROLINA LANDS AND, IN TURN, REMITTING TO THE
HOLLAND LAND COMPANY SO MUCH THEREOF AS WAS NECESSARY TO PAY THE
BALANCE OF THE PURCHASE PRICE FOR THE NEW YORK LANDS, HENRY DEARBORN
CONVEYED THE NEW YORK LANDS TO THE "TUSCARORA NATION OF INDIANS AND
THEIR SUCCESSORS AND ASSIGNS FOR EVER," IN FEE SIMPLE FREE AND CLEAR OF
ENCUMBRANCES, ON JANUARY 2, 1809.  THE TUSCARORA INDIAN NATION HAS EVER
SINCE CONTINUED TO OWN THOSE LANDS UNDER THAT CONVEYANCE. 

IN ADDITION TO THE 4,329 ACRES PURCHASED FROM THE HOLLAND LAND
COMPANY IN 1804, THE TUSCARORAS' RESERVATION EMBRACES TWO OTHER
CONTIGUOUS TRACTS CONTAINING 1,920 ACRES.  THE FIRST, A TRACT OF 640
ACRES, WAS CEDED TO THE TUSCARORAS BY THE HOLLAND LAND COMPANY IN JUNE
1798.  THE SECOND, A TRACT OF 1,280 ACRES, WAS CEDED TO THEM BY THE
HOLLAND LAND COMPANY IN 1799.  THOSE TRACTS ARE NOT INVOLVED IN THIS
CASE.    FN11  AS AMENDED, 49 STAT. 838, 16 U.S.C. SECS. 796(2) AND
797(E). 

FN12  MEANWHILE, ON APRIL 15, 1958, THE POWER AUTHORITY OF NEW YORK
COMMENCED SO-CALLED "APPROPRIATION" PROCEEDINGS UNDER SEC. 30 OF THE
NEW YORK STATE HIGHWAY LAW, MCKINNEY'S CONSOL.  LAWS, C. 25, AND ALSO
UNDER ART. 5, TIT. 1, OF THE NEW YORK PUBLIC AUTHORITIES LAW,
MCKINNEY'S CONSOL.  LAWS, C. 43-A, TO CONDEMN THE 1,383 ACRES OF
TUSCARORA LANDS FOR RESERVOIR USE.    ON APRIL 18, 1958, THE TUSCARORA
INDIAN NATION FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AGAINST THE POWER AUTHORITY AND THE
SUPERINTENDENT OF PUBLIC WORKS OF NEW YORK, SEEKING (1) A DECLARATORY
JUDGMENT THAT THE POWER AUTHORITY HAD NO RIGHT OR POWER TO TAKE ANY OF
ITS LANDS WITHOUT THE EXPRESS AND SPECIFIC CONSENT OF THE UNITED
STATES, AND (2) A PERMANENT INJUNCTION AGAINST THE APPROPRIATION OR
CONDEMNATION OF ANY OF ITS LANDS.  THE COURT ISSUED A TEMPORARY
RESTRAINING ORDER.  THE ACTION, BEING A "LOCAL" ONE, WAS THEN
TRANSFERRED TO THE DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW
YORK.  AFTER HEARING, THAT COURT ON JUNE 24, 1958, DENIED THE RELIEF
PRAYED, DISSOLVED THE RESTRAINING ORDER, AND DISMISSED THE COMPLAINT ON
THE MERITS.  TUSCARORA NATION OF INDIANS V. POWER AUTHORITY OF THE
STATE OF NEW YORK, 164 F. SUPP. 107. 

ON APPEAL, THE SECOND CIRCUIT AFFIRMED IN PART AND REVERSED IN PART. 
IT HELD THAT THE POWER AUTHORITY WAS AUTHORIZED UNDER PUBLIC LAW 58-159
AND THE FEDERAL POWER ACT AND BY THE COMMISSION'S LICENSE THEREUNDER OF
JANUARY 30, 1958, TO TAKE THE PART OF THE TUSCARORA LANDS NEEDED FOR
THE RESERVOIR, BUT THAT THEY COULD BE TAKEN ONLY BY A CONDEMNATION
ACTION IN A STATE OR FEDERAL COURT IN THE DISTRICT WHERE THE PROPERTY
IS LOCATED UNDER AND IN THE MANNER PROVIDED BY SEC. 21 OF THE FEDERAL
POWER ACT (16 U.S.C. SEC. 814), AND NOT BY "APPROPRIATION" PROCEEDINGS
UNDER THE NEW YORK LAWS REFERRED TO.  TUSCARORA NATION OF INDIANS V.
POWER AUTHORITY OF THE STATE OF NEW YORK, 257 F.2D 885.  THE TUSCARORA
INDIAN NATION'S PETITION TO THIS COURT FOR A WRIT OF CERTIORARI WAS
DENIED ON OCTOBER 13, 1958.  358 U.S. 841.  THE SUPERINTENDENT OF
PUBLIC WORKS OF NEW YORK, A RESPONDENT IN THE SECOND CIRCUIT
PROCEEDINGS, HAS APPEALED TO THIS COURT FROM SO MUCH OF THE JUDGMENT AS
DENIED A RIGHT TO ACQUIRE THE TUSCARORA LANDS BY APPROPRIATION
PROCEEDINGS UNDER THE NEW YORK LAWS, AND THAT APPEAL IS NOW PENDING
HERE.  (NO. 4, OCT. TERM, 1959.) 

FN13  IN MAKING THE STATEMENT REFERRED TO IN THE TEXT THE COMMISSION
WAS DOUBTLESS ALLUDING TO THE FACT THAT IN MAY 1958, THE POWER
AUTHORITY OFFERED THE TUSCARORAS $1,500,000 FOR THE 1,383 ACRES, OR IN
EXCESS OF $1,000 PER ACRE, PLUS PAYMENT FOR, OR REMOVAL TO OR REPLACING
ON OTHER LANDS, THE 37 HOUSES LOCATED ON THESE 1,383 ACRES AND OFFERED
TO CONSTRUCT FOR THEM A COMMUNITY CENTER BUILDING, INVOLVING A TOTAL
EXPENDITURE OF ABOUT $2,400,000, WHICH OFFER, THE COMMISSION SAYS, HAS
NEVER BEEN WITHDRAWN. 

THE TUSCARORA INDIAN NATION TELLS US IN ITS BRIEF THAT: 

"WHAT THE GOVERNMENT UNFORTUNATELY FAILS TO POINT OUT IS THAT THE
POWER AUTHORITY'S 'OFFER' WAS AND STILL IS AN EMPTY GESTURE SINCE, AS
THE COURT BELOW AND THE COURT OF APPEALS FOR THE SECOND CIRCUIT BOTH
RULED, THE TUSCARORA NATION IS PROHIBITED BY LAW FROM SELLING ITS LANDS
WITHOUT THE CONSENT OF THE UNITED STATES EXPRESSED IN AN ACT OF
CONGRESS.  25 U.S.C. SECS. 177, 233." 

FN14  SEE H.R. REP. NO. 715, 65TH CONG., 2D SESS., P. 22; S. REP. NO.
180, 66TH CONG., 1ST SESS., P. 10. 

FN15  SEE S. REP. NO. 180, 66TH CONG., 1ST SESS., P. 10; 59 CONG.
REC. 1103. 

FN16  SEE H.R. REP. NO. 910, 66TH CONG., 2D SESS., P. 7. 

FN17  THE TUSCARORAS ALSO RELY UPON 25 U.S.C. SEC. 233, WHICH
CONFERS, SUBJECT TO QUALIFICATIONS, JURISDICTION UPON THE COURTS OF NEW
YORK OVER CIVIL ACTIONS BETWEEN INDIANS AND ALSO BETWEEN THEM AND OTHER
PERSONS, AND CONTAINS A PERTINENT PROVISO "THAT NOTHING HEREIN
CONTAINED SHALL BE CONSTRUED AS AUTHORIZING THE ALIENATION FROM ANY
INDIAN NATION, TRIBE, OR BAND OF INDIANS OF ANY LANDS WITHIN ANY INDIAN
RESERVATION IN THE STATE OF NEW YORK." 

FN18  THE TUSCARORA INDIAN NATION ARGUES THAT ITS LANDS IN QUESTION
SHOULD BE REGARDED AS SUBJECT TO AND PROTECTED FROM CONDEMNATION BY THE
TREATY OF FORT STANWIX OF OCTOBER 22, 1784 (7 STAT. 15), THE UNRATIFIED
TREATY OF FORT HARMAR OF JANUARY 9, 1789 (7 STAT. 33), AND THE TREATY
OF CANANDAIGUA OF NOVEMBER 11, 1794 (7 STAT. 44).  BUT THE RECORD SHOWS
THAT THE FIRST TWO OF THESE TREATIES RELATED TO OTHER LANDS AND,
PRINCIPALLY AT LEAST, TO OTHER INDIAN NATIONS, AND THAT THE LAST TREATY
MENTIONED, THOUGH COVERING THE LANDS IN QUESTION, WAS WITH ANOTHER
INDIAN NATION (THE SENECAS) WHICH, PURSUANT TO THE TREATY OF BIG TREE
OF SEPTEMBER 15, 1797 (7 STAT. 601) AND WITH THE APPROBATION OF THE
UNITED STATES, SOLD ITS INTEREST IN THESE LANDS TO ROBERT MORRIS AND
THUS FREED THEM FROM THE EFFECTS OF THE TREATY OF CANANDAIGUA OF 1794. 
ROBERT MORRIS, IN TURN, CONVEYED THESE LANDS TO THE HOLLAND LAND
COMPANY AND IT, IN TURN, CONVEYED THE PART IN QUESTION TO THE TUSCARORA
INDIAN NATION, AND ITS TITLE RESTS UPON THAT CONVEYANCE, FREE OF ANY
TREATY. 

IT APPEARS FROM THE RECORD THAT, AS EARLIER STATED (SEE NOTE 10), THE
TUSCARORAS, SAVE FOR A FEW OF THEM WHO REMAINED ON THEIR LANDS "ON THE
ROANOKE" IN NORTH CAROLINA, MOVED FROM THEIR NORTH CAROLINA LANDS TO
RESIDE WITH THE ONEIDAS IN CENTRAL NEW YORK - AT A POINT ABOUT 200
MILES EAST OF THE LANDS NOW OWNED BY THE TUSCARORAS IN NIAGARA COUNTY,
NEW YORK - IN 1775.  THE TUSCARORAS HAD NO PROPRIETARY INTEREST IN THE
ONEIDAS' LANDS IN CENTRAL NEW YORK BUT WERE THERE AS "GUESTS" OF THE
ONEIDAS OR AS "TENANTS AT WILL OR BY SUFFERANCE."  HOUGH, CENSUS OF THE
STATE OF NEW YORK, 1857, P. 510; NEW YORK SENATE DOCUMENT NO. 24, 1846,
P. 68.  THEY CAME TO BE RECOGNIZED, HOWEVER, AS MEMBERS OF THE FIVE
NATIONS WHICH THEREAFTER BECAME KNOWN AS THE SIX NATIONS (THE OTHERS
BEING THE ONEIDAS, THE MOHAWKS, THE ONANDAGAS, THE CAYUGAS AND THE
SENECAS).  THE SENECAS OCCUPIED A VAST AREA IN WESTERN NEW YORK,
INCLUDING THE LANDS HERE IN QUESTION.  A FEW TUSCARORAS FOUGHT WITH THE
SENECAS ON THE SIDE OF THE BRITISH AND AFTER THEIR DEFEAT AT THE BATTLE
OF ELMIRA IN 1779, THEY WENT TO RESIDE WITH THE SENECAS IN THE VICINITY
OF FORT NIAGARA IN ABOUT 1780.  OTHER TUSCARORAS THEN MOVED TO THAT
PLACE.  JUST WHEN THEY DID SO IS NOT KNOWN WITH CERTAINTY AND IT
APPEARS THAT THE MOST THAT CAN BE SAID IS THAT THEY WERE THERE PRIOR TO
1797.  THE TUSCARORAS HAD THE SAME KIND OF TENURE, I.E., GUESTS OR
TENANTS AT WILL OR BY SUFFERANCE, WITH THE SENECAS AS THEY HAD EARLIER
HAD WITH THE ONEIDAS IN CENTRAL NEW YORK.  ONE OF THEIR CHIEFS
DESCRIBED THEIR SITUATION AS "SQUATTERS UPON THE TERRITORY OF ANOTHER
DISTINCT NATION." 

BY THE TREATY OF FORT STANWIX OF 1784 (7 STAT. 15) AND THE UNRATIFIED
TREATY OF FORT HARMAR OF 1789 (7 STAT. 33) WITH THE SIX NATIONS, THE
UNITED STATES PROMISED TO HOLD THE ONEIDAS AND THE TUSCARORAS SECURE IN
THE LANDS UPON WHICH THEY THEN LIVED - WHICH WERE THE LANDS IN CENTRAL
NEW YORK ABOUT 200 MILES EAST OF THE LANDS IN QUESTION.  BY THE SAME
TREATIES THE UNITED STATES PROMISED TO SECURE TO THE SIX NATIONS A
TRACT OF LAND IN WESTERN NEW YORK IN THE VICINITY OF THE NIAGARA
RIVER.  BY THE TREATY OF CANANDAIGUA OF 1794 (7 STAT. 44) BETWEEN THE
UNITED STATES AND THE SIX NATIONS, WHICH SUPERSEDED THE PRIOR TREATIES
(EXCEPT, BY ARTICLE VI, THE UNITED STATES REMAINED BOUND TO PAY THE
TUSCARORAS $4,500 PER YEAR FOR THE PURCHASE OF CLOTHING), IT WAS
RECOGNIZED THAT THE SENECAS ALONE HAD POSSESSORY RIGHTS TO THE WESTERN
NEW YORK AREA HERE INVOLVED AND, AS A RESULT OF THAT TREATY, A LARGE
TRACT OF WESTERN NEW YORK LANDS, INCLUDING THE LANDS NOW ONWED BY THE
TUSCARORAS, WAS SECURED TO THE SENECAS. 

UNDER THE 1786 HARTFORD COMPACT BETWEEN NEW YORK AND MASSACHUSETTS,
NEW YORK WAS RECOGNIZED TO HAVE SOVEREIGNTY OVER THOSE LANDS AND
MASSACHUSETTS TO OWN THE UNDERLYING FEE TO THOSE LANDS AND THE RIGHT TO
PURCHASE THE SENECAS' INTEREST IN THEM.  IN 1794, MASSACHUSETTS SOLD
THE FEE AND THE RIGHT TO PURCHASE THE SENECAS' RIGHT TO OCCUPY THESE
WESTERN NEW YORK LANDS, INCLUDING THE LANDS NOW OWNED BY THE
TUSCARORAS, TO ROBERT MORRIS, WHO, IN TURN, SOLD THOSE LANDS AND RIGHTS
TO THE HOLLAND LAND COMPANY WITH THE COVENANT THAT HE WOULD BUY OUT THE
SENECAS' RIGHTS OF OCCUPANCY FOR AND ON BEHALF OF THE HOLLAND LAND
COMPANY.  AND AT THE TREATY OF BIG TREE OF 1797 (7 STAT. 601), MORRIS,
WITH THE APPROBATION OF THE UNITED STATES, PURCHASED THE SENECAS'
RIGHTS OF OCCUPANCY IN THE LANDS HERE IN QUESTION FOR THE HOLLAND LAND
COMPANY.  THUS THE LANDS IN QUESTION WERE ENTIRELY FREED FROM THE
EFFECTS OF ALL THEN EXISTING TREATIES WITH THE INDIANS, AND THE
TUSCARORAS' TITLE TO THEIR PRESENT LANDS DERIVES, AS EARLIER STATED,
FROM THE HOLLAND LAND COMPANY (SEE NOTE 10 FOR FURTHER DETAILS) AND HAS
NEVER SINCE BEEN SUBJECT TO ANY TREATY BETWEEN THE UNITED STATES AND
THE TUSCARORAS. 

MR. JUSTICE BRENNAN CONCURS IN THE RESULT. 

MR. JUSTICE BLACK, WHOM THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS
JOIN, DISSENTING. 

THE COURT HOLDS THAT THE FEDERAL POWER ACT (FN1) AUTHORIZES THE
TAKING OF 22% (1,383 ACRES) OF THE SINGLE TRACT WHICH THE TUSCARORA
INDIAN NATION HAS OWNED AND OCCUPIED AS ITS HOMELAND FOR 150 YEARS. 
(FN2)  ADMITTEDLY THIS TAKING OF SO LARGE A PART OF THE LANDS WILL
INTERFERE WITH THE PURPOSE FOR WHICH THIS INDIAN RESERVATION WAS
CREATED - A PERMANENT HOME FOR THE TUSCARORAS.  I NOT ONLY BELIEVE THAT
THE FEDERAL POWER ACT DOES NOT AUTHORIZE THIS TAKING, BUT THAT THE ACT
POSITIVELY PROHIBITS IT.  MOREOVER, I THINK THE TAKING ALSO VIOLATES
THE NATION'S LONG-ESTABLISHED POLICY OF RECOGNIZING AND PRESERVING
INDIAN RESERVATIONS FOR TRIBAL USE, AND THAT IT CONSTITUTES A BREACH OF
INDIAN TREATIES RECOGNIZED BY CONGRESS SINCE AT LEAST 1794. 

WHETHER THE FEDERAL POWER ACT PERMITS THIS CONDEMNATION DEPENDS, IN
PART, UPON WHETHER THE TUSCARORA RESERVATION IS A "RESERVATION" WITHIN
THE MEANING OF THE ACT.  FOR IF IT IS, SEC. 4(E) FORBIDS THE TAKING OF
ANY PART OF THE LANDS EXCEPT AFTER A FINDING BY THE FEDERAL POWER
COMMISSION THAT THE TAKING "WILL NOT INTERFERE OR BE INCONSISTENT WITH
THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED  ...
."  (FN3)  THERE IS NO SUCH FINDING HERE.  IN FACT, THE COMMISSION
FOUND THAT THE INUNDATION OF SO GREAT A PART OF THE TUSCARORA
RESERVATION BY THE WATERS OF THE PROPOSED RESERVOIR "WILL INTERFERE AND
WILL BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS
CREATED OR ACQUIRED."  21 F.P.C. 146, 148.  IF THESE TUSCARORA
HOMELANDS ARE "TRIBAL LANDS EMBRACED WITHIN" AN INDIAN RESERVATION AS
USED IN SEC. 3(2) (FN4) THEY CONSTITUTE A "RESERVATION" FOR PURPOSES OF
SEC. 4(E), AND THEREFORE THE TAKING HERE IS UNAUTHORIZED BECAUSE THE
REQUISITE FINDING COULD NOT BE MADE. 

I BELIEVE THE PLAIN MEANING OF THE WORDS USED IN THE ACT, TAKEN
ALONE, AND THEIR MEANING IN THE LIGHT OF THE HISTORICAL BACKGROUND
AGAINST WHICH THEY MUST BE VIEWED, REQUIRE THE CONCLUSION THAT THESE
LANDS ARE A "RESERVATION" ENTITLED TO THE PROTECTIONS OF SEC. 4(E) OF
THE ACT.  "RESERVATION," AS USED IN SEC. 4(E), IS DEFINED BY SEC. 3(2),
WHICH PROVIDES: 

"'RESERVATIONS' MEANS NATIONAL FORESTS, TRIBAL LANDS EMBRACED WITHIN
INDIAN RESERVATIONS, MILITARY RESERVATIONS, AND OTHER LANDS AND
INTERESTS IN LANDS OWNED BY THE UNITED STATES, AND WITHDRAWN, RESERVED,
OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC
LAND LAWS; ALSO LANDS AND INTERESTS IN LANDS ACQUIRED AND HELD FOR ANY
PUBLIC PURPOSES; BUT SHALL NOT INCLUDE NATIONAL MONUMENTS OR NATIONAL
PARKS  ...  ." 

THE PHRASE "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS" SURELY
INCLUDES THESE TUSCARORA LANDS.  THEY ARE TRIBAL LANDS.  THEY ARE
EMBRACED WITHIN THE TUSCARORA INDIAN NATION'S RESERVATION.  THE LANDS
HAVE BEEN CALLED A RESERVATION FOR MORE THAN 150 YEARS.  THEY HAVE BEEN
SO DESCRIBED IN TREATIES, ACTS OF CONGRESS, COURT DECISIONS, INDIAN
AGENCY REPORTS, BOOKS, ARTICLES, AND MAPS.  IN FACT, SO FAR AS I CAN
ASCERTAIN, THEY HAVE NEVER BEEN CALLED ANYTHING ELSE, ANYWHERE OR AT
ANY TIME - UNTIL TODAY.  EVEN THE COURT OF APPEALS AND THE FEDERAL
POWER COMMISSION, AND THE BRIEFS AND RECORD IN THIS COURT, QUITE
NATURALLY REFER TO THIS 10-SQUARE-MILE TRACT OF LAND AS AN INDIAN
RESERVATION.  THE COURT ITSELF SEEMS TO ACCEPT THE FACT THAT THE
TUSCARORA NATION LIVES ON A RESERVATION ACCORDING TO (IN ITS WORDS) THE
"GENERALLY ACCEPTED STANDARDS AND COMMON UNDERSTANDING" OF THAT TERM. 

THE COURT, HOWEVER, DECIDES THAT IN THE FEDERAL POWER ACT CONGRESS
DEPARTED FROM THE MEANING UNIVERSALLY GIVEN THE PHRASE "TRIBAL LANDS
EMBRACED WITHIN INDIAN RESERVATIONS" AND DEFINED THE PHRASE, THE COURT
SAYS, "ARTIFICIALLY."  THE COURT BELIEVES THAT THE WORDS "OTHER LANDS
...  OWNED BY THE UNITED STATES," WHICH FOLLOW, WERE INTENDED BY
CONGRESS TO LIMIT THE PHRASE TO INCLUDE ONLY THOSE RESERVATIONS TO
WHICH THE UNITED STATES HAS TECHNICAL LEGAL TITLE.  BY THE COURT'S
"ARTIFICIAL" INTERPRETATION, THE PHRASE TURNS OUT TO MEAN "TRIBAL LANDS
EMBRACED WITHIN INDIAN RESERVATIONS - EXCEPT WHEN 'THE LANDS INVOLVED
ARE OWNED IN FEE SIMPLE BY THE INDIANS.'"  (FN5) 

CREATING SUCH A WHOLLY ARTIFICIAL AND LIMITED DEFINITION, SO NEW AND
DISRUPTIVE, IMPOSES A HEAVY BURDEN OF JUSTIFICATION UPON THE ONE WHO
ASSERTS IT.  WE ARE TOLD THAT MANY TRIBES OWN THEIR RESERVATION LANDS. 
THE WELL-KNOWN PUEBLOS OF NEW MEXICO OWN SOME 700,000 ACRES OF LAND IN
FEE.  ALL SUCH RESERVATION LANDS ARE PUT IN JEOPARDY BY THE COURT'S
STRAINED INTERPRETATION.  THE COURT SUGGESTS NO PLAUSIBLE REASON, OR
ANY REASON AT ALL FOR THAT MATTER, WHY CONGRESS SHOULD OR WOULD HAVE
SOUGHT ARTIFICIALLY TO PLACE THOSE INDIANS WHO HOLD LEGAL TITLE TO
THEIR RESERVATION LANDS IN SUCH A LESS-FAVORED POSITION.  (FN6)  THE
FACT THAT THE TUSCARORA NATION HOLDS TECHNICAL LEGAL TITLE IS
FORTUITOUS AND AN ACCIDENTAL CIRCUMSTANCE PROBABLY ATTRIBUTABLE TO THE
INDIAN LAND POLICY PREVAILING AT THE EARLY DATE THIS RESERVATION WAS
ESTABLISHED.  THEIR LANDS, LIKE ALL OTHER INDIAN TRIBAL LANDS, CAN BE
SOLD, LEASED OR SUBJECTED TO EASEMENTS ONLY WITH THE CONSENT OF THE
UNITED STATES GOVERNMENT.  CONGRESS AND GOVERNMENT AGENCIES HAVE ALWAYS
TREATED THE TUSCARORA RESERVATION THE SAME AS ALL OTHERS, (FN7) AND
THERE IS NO REASON EVEN TO SUSPECT THAT CONGRESS WANTED TO TREAT IT
DIFFERENTLY WHEN IT PASSED THE FEDERAL POWER ACT. 

IT IS NECESSARY TO ADD NO MORE THAN A WORD ABOUT THE LEGISLATIVE
HISTORY OF THIS SECTION WHICH THE COURT RELIES ON.  THE COURT POINTS
OUT THAT THE HOUSE VERSION OF THE 1920 FEDERAL WATER POWER ACT (NOW
CALLED THE FEDERAL POWER ACT) DEFINED "RESERVATIONS" AS MEANING ONLY
"LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES."  IN THIS
DEFINITION OF "RESERVATIONS" THE SENATE INSERTED NEW WORDS WHICH
INCLUDED THE PRESENT PHRASE "TRIBAL LANDS EMBRACED WITHIN INDIAN
RESERVATIONS."  IF THE ONLY INDIAN LANDS CONGRESS SOUGHT TO COVER BY
THIS SECTION WERE THOSE TO WHICH THE UNITED STATES HAD TITLE, THE
SENATE ADDITION SERVED NO PURPOSE.  FOR THE HOUSE BILL COVERED ALL
"LANDS  ...  OWNED BY THE UNITED STATES."  THE ONLY REASON FOR THE
SENATE ADDITIONS, IT SEEMS TO ME, WAS TO COVER LANDS, LIKE THOSE OF THE
TUSCARORA NATION HERE, TITLE TO WHICH WAS NOT IN THE UNITED STATES
GOVERNMENT. 

THE COURT ALSO UNDERTAKES TO SUPPORT ITS "ARTIFICIAL" DEFINITION OF
"TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS" BY SAYING THAT THE
CONGRESS KNEW, BY A PRIOR DECISION OF THIS COURT, THAT IT WAS ACTING
UNDER ART. IV, SEC. 3, CL. 2, OF THE CONSTITUTION, WHICH GIVES CONGRESS
POWER, AS THE COURT SAYS, "TO DEAL ONLY WITH 'THE TERRITORY OR OTHER
PROPERTY BELONGING TO THE UNITED STATES,'" IN THE FIRST PLACE I DO NOT
UNDERSTAND HOW THE COURT CAN SAY WITH SUCH ASSURANCE THAT THE CONGRESS
WAS ACTING ONLY UNDER THAT CLAUSE, AS THERE IS NO EVIDENCE WHATSOEVER
THAT CONGRESS EXPRESSED ITSELF ON THIS MATTER.  MOREOVER, IT SEEMS FAR
MORE LIKELY TO ME THAT IN THIS PHRASE REGULATING INDIAN TRIBES CONGRESS
WAS ACTING UNDER ART. I, SEC. 8, CL. 3, WHICH EMPOWERS CONGRESS "TO
REGULATE COMMERCE WITH  ...  THE INDIAN TRIBES." 

EVEN ACCEPTING FOR A MOMENT THE COURT'S "ARTIFICIAL" DEFINITION, I
THINK THE UNITED STATES OWNS A SUFFICIENT "INTEREST" IN THESE TUSCARORA
HOMELANDS TO MAKE THEM A "RESERVATION" WITHIN THE MEANING OF THE ACT. 
LANDS EMBRACED WITHIN INDIAN RESERVATIONS"; THE SAME FINDING IS
REQUIRED IN ORDER TO TAKE "OTHER  ...  INTERESTS IN LANDS OWNED BY THE
UNITED STATES" WHETHER TRIBAL OR NOT.  OR, AGAIN ACCEPTING THE COURT'S
CONCEPTION, IF THE PHRASE "TRIBAL LANDS EMBRACED WITHIN INDIAN
RESERVATIONS" MUST BE MODIFIED BY THE WORDS WHICH FOLLOW, "LANDS  ...
OWNED BY THE UNITED STATES," IT MUST ALSO BE MODIFIED BY THE WORDS
"INTERESTS IN LANDS OWNED BY THE UNITED STATES," WHICH ALSO FOLLOW. 
READ THIS WAY, THE SECTION DEFINES "RESERVATIONS" AS TRIBAL LANDS IN
WHICH THE UNITED STATES OWNS "INTERESTS."  THUS AGAIN A FINDING UNDER
SEC. 4(E) IS REQUIRED EVEN UNDER THE COURT'S OWN TECHNICAL APPROACH IF
THE UNITED STATES OWNS "INTERESTS" IN THE LANDS.  I THINK IT DOES. 

CERTAINLY THE WORDS CONGRESS USED, "INTERESTS IN LANDS," ARE NOT
SURPLUSAGE; THEY HAVE SOME MEANING AND WERE INTENDED TO ACCOMPLISH SOME
PURPOSE OF THEIR OWN.  THE UNITED STATES UNDOUBTEDLY CONTROLS (HAS
"INTERESTS IN") MANY LANDS IN THIS COUNTRY THAT IT DOES NOT OWN IN FEE
SIMPLE.  THIS IS SURELY TRUE AS TO ALL INDIAN TRIBAL LANDS, EVEN THOUGH
THE INDIANS OWN THE FEE SIMPLE TITLE.  (FN8)  SUCH LANDS CANNOT BE SOLD
OR LEASED WITHOUT THE CONSENT OF THE UNITED STATES GOVERNMENT.  THE
SECRETARY OF THE INTERIOR TOOK THIS POSITION ABOUT THIS VERY
RESERVATION IN 1912 WHEN THE TUSCARORAS DESIRED TO LEASE A PART OF
THEIR LANDS TO PRIVATE INDIVIDUALS FOR LIMESTONE QUARRYING.  (FN9)
AND, OF COURSE, THE LONG-ACCEPTED CONCEPT OF A GUARDIAN-WARD
RELATIONSHIP BETWEEN THE UNITED STATES AND ITS INDIANS, WITH ALL THE
REQUIREMENTS OF FAIR DEALING AND PROTECTION THAT THIS INVOLVES, MEANS
THAT THE INDIANS ARE NOT FREE TO TREAT THEIR LANDS AS WHOLLY THEIR
OWN.  (FN10)  ANYONE DOUBTING THE EXTENT OF OWNERSHIP INTEREST IN THESE
LANDS BY THE UNITED STATES WOULD HAVE THAT DOUBT RAPIDLY REMOVED SHOULD
HE TAKE A DEED FROM THE TUSCARORA NATION WITHOUT THE CONSENT OF THE
GOVERNMENT.  (FN11)  I CANNOT AGREE, THEREFORE, THAT THIS ALL BUT
TECHNICAL FEE OWNERSHIP WHICH THE UNITED STATES HAS IN THESE LANDS IS
INADEQUATE TO CONSTITUTE THE KIND OF "INTERESTS IN LANDS OWNED BY THE
UNITED STATES" WHICH REQUIRES A SEC. 4(E) FINDING BEFORE CONDEMNATION. 

AFTER THE COURT CONCLUDES THAT BECAUSE OF ITS INTERPRETATION OF THE
DEFINITION OF "RESERVATIONS" IN SEC. 3(2) A FINDING IS NOT REQUIRED BY
SEC. 4(E) TO TAKE THE TUSCARORA LANDS, IT GOES ON TO FIND THE NECESSARY
CONGRESSIONAL AUTHORIZATION TO TAKE THESE LANDS IN THE GENERAL
CONDEMNATION PROVISIONS OF SEC. 21.  16 U.S.C. SEC. 814.  I BELIEVE
THAT THIS IS AN INCORRECT INTERPRETATION OF THE GENERAL POWER TO
CONDEMN UNDER SEC. 21, BOTH BECAUSE CONGRESS SPECIFICALLY PROVIDED FOR
THE TAKING OF ALL INDIAN RESERVATION LANDS IT WANTED TAKEN IN OTHER
CONTRARY TO THE MANNER IN WHICH CONGRESS HAS TRADITIONALLY GONE ABOUT
THE TAKING OF INDIAN LANDS - SUCH AS CONGRESS HERE CAREFULLY PRESCRIBED
IN SEC. 4(E).  CONGRESS HAS BEEN CONSISTENT IN GENERALLY EXERCISING
THIS POWER TO TAKE INDIAN LANDS ONLY IN ACCORD WITH PRIOR TREATIES,
ONLY WHEN THE INDIANS THEMSELVES CONSENT TO BE MOVED, AND ONLY BY ACTS
WHICH EITHER SPECIFICALLY REFER TO INDIANS OR BY THEIR TERMS MUST
INCLUDE INDIAN LANDS.  NONE OF THESE CONDITIONS IS SATISFIED HERE IF
SEC. 21 IS TO BE RELIED UPON.  THE SPECIFIC AND DETAILED PROVISIONS OF
SEC. 10(E), 16 U.S.C. SEC. 803(E), UPON WHICH THE COURT RELIES, ONLY
EMPHASIZE TO ME THE KIND OF CARE CONGRESS ALWAYS TAKES TO PROTECT THE
JUST CLAIMS OF INDIANS TO RESERVATIONS LIKE THIS ONE.  THE CASES WHICH
THE COURT CITES IN ITS OPINION DO NOT JUSTIFY THE BROAD MEANING READ
INTO SEC. 21.  MANY OF THOSE CASES DEAL WITH TAXATION - FEDERAL AND
STATE.  THE FACT THAT INDIANS ARE SOMETIMES TAXED LIKE OTHER CITIZENS
DOES NOT EVEN REMOTELY INDICATE THAT CONGRESS HAS WEAKENED IN ANY WAY
ITS POLICY TO PRESERVE "TRIBAL LANDS EMBRACED WITHIN INDIAN
RESERVATIONS."  MOREOVER, CASES DEALING WITH INDIVIDUALS WHO ARE NOT
INDIANS ARE NOT APPLICABLE TO TRIBAL RESERVATIONS.  FOR EXAMPLE, SHAW
V. GIBSON-ZAHNISER OIL CORP., 276 U.S. 575, CITED BY THE COURT, DID NOT
INVOLVE TRIBAL LANDS.  THAT CASE ONLY HELD THAT A STATE MAY TAX THE
PRODUCTION OF AN OIL COMPANY EVEN THOUGH IT WAS DERIVED FROM OIL
COMPANY LANDS LEASED FROM AN INDIAN.  THE OWNER THERE WAS AN INDIVIDUAL
INDIAN, NOT A TRIBE, AND THE LANDS WERE NOT AND NEVER HAD BEEN A PART
OF AN INDIAN RESERVATION, BUT RATHER HAD BEEN PURCHASED FOR THIS SINGLE
INDIAN WITH THE ROYALTIES HE OBTAINED FROM HIS OWN ORIGINAL RESTRICTED
ALLOTED LANDS.  IN HENKEL V. UNITED STATES, 237 U.S. 43, WHICH INVOLVED
THE TAKING OF INDIAN LANDS FOR THE VAST WESTERN RECLAMATION PROJECT,
THE COURT NOT ONLY FOUND THAT IT HAD BEEN "WELL KNOWN TO CONGRESS" THAT
INDIAN LANDS WOULD HAVE TO BE TAKEN, 237 U.S., AT 50, BUT THE TREATY
WITH THE INDIANS INVOLVED IN THAT CASE CONTAINED A SPECIFIC CONSENT BY
THE INDIANS TO SUCH A TAKING.  29 STAT. 356, QUOTED 237 U.S., AT 48
49.  THERE WAS NO PROVISION EVEN RESEMBLING THIS IN THE TREATY OF 1794
WITH THE TUSCARORAS.  OTHER CASES RELIED ON BY THE COURT, SUCH AS
SPALDING V. CHANDLER, 160 U.S. 394, AND CHEROKEE NATION V. SOUTHERN
KANSAS R. CO., 135 U.S. 641, ALL INVOLVED STATUTES THAT MADE IT CLEAR
THAT CONGRESS WAS WELL AWARE IT WAS AUTHORIZING THE TAKING OF INDIANS'
LANDS - UNLIKE THE HISTORY OF SEC. 21 OF THE FEDERAL POWER ACT AND THE
1957 NIAGARA POWER ACT, 71 STAT. 401, 16 U.S.C. SECS. 836-836A,
INVOLVED HERE. 

ALL THAT I HAVE SAID SO FAR RELATES TO WHAT THE COURT CALLS THE
"PLAIN WORDS" OF THE STATUTE.  I INTERPRET THESE "PLAIN WORDS"
DIFFERENTLY THAN THE COURT.  BUT THERE ARE OTHER MORE FUNDAMENTAL AND
DECISIVE REASONS WHY I DISAGREE WITH THE COURT'S INTERPRETATION OF THE
FEDERAL POWER ACT AS IT RELATES TO INDIANS.  THE PROVISIONS IN SEC.
4(E) WHICH PROTECT INDIAN RESERVATIONS AGAINST DESTRUCTION BY
CONDEMNATION CANNOT BE PROPERLY CONSTRUED UNLESS CONSIDERED AS A PART
OF A BODY OF INDIAN LAWS BUILT UP THROUGHOUT THIS NATION'S HISTORY, AND
EXTENDING BACK EVEN TO THE ARTICLES OF CONFEDERATION.  IT IS NECESSARY
TO SUMMARIZE BRIEFLY A PART OF THAT HISTORY. 

THE EXPERIENCE OF THE TUSCARORA NATION ILLUSTRATES THIS HISTORY AS
WELL AS THAT OF ANY INDIAN TRIBE.  (FN12)  WHEN THIS COUNTRY WAS
DISCOVERED THE TUSCARORAS LIVED AND OWNED THEIR HOMELANDS IN THE AREA
THAT LATER BECAME NORTH CAROLINA.  EARLY SETTLERS WANTED THEIR LANDS. 
THE TUSCARORAS DID NOT WANT TO GIVE THEM UP.  NUMEROUS CONFLICTS AROSE
BECAUSE OF THIS CLASH OF DESIRES.  FINALLY, ABOUT 1710, THERE WAS A WAR
BETWEEN THE TUSCARORAS AND THE COLONISTS IN NORTH AND SOUTH CAROLINA. 
THE INDIANS WERE ROUTED.  A MAJORITY OF THEIR WARRIORS WERE KILLED. 
HUNDREDS OF THEIR MEN, WOMEN AND CHILDREN WERE CAPTURED AND SOLD INTO
SLAVERY.  NEARLY ALL OF THE REMAINDER OF THE TRIBE FLED.  THEY FOUND A
HOME IN DISTANT NEW YORK WITH THE IROQUOIS CONFEDERATION OF NATIONS. 
WITH THEIR ACCEPTANCE INTO THE CONFEDERATION ABOUT 1720 IT BECAME KNOWN
AS THE SIX NATIONS.  HISTORICAL ACCOUNTS INDICATE THAT ABOUT 1780 THOSE
TUSCARORAS WHO HAD SUPPORTED AMERICA IN THE REVOLUTION WERE COMPELLED
TO LEAVE THEIR FIRST RESIDENCE IN NEW YORK BECAUSE OF THE HOSTILITY OF
INDIANS WHO HAD FOUGHT WITH THE BRITISH AGAINST THE COLONIES.  (FN13)
THEY MIGRATED TO THE VILLAGE OF LEWISTON, NEW YORK, NEAR NIAGARA FALLS
AND SETTLED IN THAT AREA AS THEIR NEW HOME.  THEY HAVE REMAINED THERE
EVER SINCE - NEARLY 180 YEARS.  WHEN THEIR LEGAL RIGHT TO THIS LAND
CAME INTO QUESTION ABOUT 1800 THE SENECA INDIANS AND THE HOLLAND LAND
COMPANY BOTH "THOUGHT THEIR CLAIM SO JUST" (FN14) THAT THEY GAVE THE
TUSCARORA NATION DEEDS TO THREE SQUARE MILES OF THE AREA THEY HAD BEEN
OCCUPYING FOR ABOUT 20 YEARS.  WITH THE ASSISTANCE OF PRESIDENTS
WASHINGTON AND JEFFERSON AND THE CONGRESS, THE TUSCARORAS WERE ABLE,
THROUGH THE SECRETARY OF WAR, TO SELL THEIR VAST NORTH CAROLINA LANDS
FOR $15,000.  WITH THIS MONEY, HELD BY THE SECRETARY OF WAR AS TRUSTEE,
ADDITIONAL LANDS ADJOINING THOSE RECEIVED FROM THE SENECA INDIANS AND
THE HOLLAND LAND COMPANY WERE OBTAINED FOR THE TUSCARORA NATION AND THE
TITLE HELD IN TRUST BY THE SECRETARY OF WAR FROM 1804 TO 1809.  THE
SECRETARY SUPERVISED THE PAYMENTS TO THE HOLLAND LAND COMPANY, FROM
WHICH THE ADDITIONAL 4,329 ACRES WERE OBTAINED, AND WHEN PAYMENTS WERE
COMPLETED HE CONVEYED THESE LANDS TO THE TUSCARORA NATION.  (FN15)  THE
1,383 ACRES OF THE TUSCARORA RESERVATION INVOLVED TODAY IS A PART OF
THIS PURCHASE.  DESPITE ALL THIS AND THE GOVERNMENT'S CONTINUING
GUARDIANSHIP OVER THESE INDIANS AND THEIR LANDS THROUGHOUT THE YEARS
THE COURT ATTEMPTS TO JUSTIFY THIS TAKING ON THE SINGLE GROUND THAT THE
INDIANS, NOT THE UNITED STATES GOVERNMENT, NOW OWN THE FEE SIMPLE TITLE
TO THIS PROPERTY. 

IN 1838 THE GOVERNMENT MADE A TREATY WITH THE TUSCARORAS UNDER WHICH
THEY WERE TO BE REMOVED TO OTHER PARTS OF THE UNITED STATES.  (FN16)
THE REMOVAL WAS TO BE CARRIED OUT UNDER THE AUTHORITY OF A
CONGRESSIONAL ACT OF 1830, 4 STAT. 411, WHICH PROVIDED A PROGRAM FOR
REMOVING THE INDIANS FROM THE EASTERN UNIRED STATES TO THE WEST. 
ASSURE THE TRIBE OR NATION WITH WHICH THE EXCHANGE IS MADE, THAT THE
UNITED STATES WILL FOREVER SECURE AND GUARANTY TO THEM, AND THEIR HEIRS
OR SUCCESSORS, THE COUNTRY SO EXCHANGED WITH THEM  ...  ."  THE SAME
ACT ALSO PROVIDED "THAT NOTHING IN THIS ACT CONTAINED SHALL BE
CONSTRUED AS AUTHORIZING OR DIRECTING THE VIOLATION OF ANY EXISTING
TREATY BETWEEN THE UNITED STATES AND ANY OF THE INDIAN TRIBES."  ID.,
SEC. 7. 

THE TUSCARORA NATION THEN HAD SUCH A TREATY WITH THE UNITED STATES,
WHICH HAD BEEN IN EXISTENCE SINCE 1794 AND IS STILL RECOGNIZED BY
CONGRESS TODAY.  (FN17)  THE TREATY WAS MADE WITH ALL THE SIX NATIONS,
AT A TIME WHEN THE TUSCARORA NATION HAD BEEN A MEMBER FOR OVER 70
YEARS, AND ONE OF THEIR REPRESENTATIVES SIGNED THE TREATY.  (FN18)  IN
ARTICLE III OF THE TREATY THE UNITED STATES GOVERNMENT MADE THIS SOLEMN
PROMISE: 

"NOW, THE UNITED STATES ACKNOWLEDGE ALL THE LAND WITHIN THE
AFOREMENTIONED BOUNDARIES, TO BE THE PROPERTY OF THE SENEKA NATION; AND
THE UNITED STATES WILL NEVER CLAIM THE SAME, NOR DISTURB THE SENEKA
NATION, NOR ANY OF THE SIX NATIONS, OR OF THEIR INDIAN FRIENDS RESIDING
THEREON AND UNITED WITH THEM, IN THE FREE USE AND ENJOYMENT THEREOF:
BUT IT SHALL REMAIN THEIRS, UNTIL THEY CHOOSE TO SELL THE SAME TO THE
PEOPLE OF THE UNITED STATES, WHO HAVE THE RIGHT TO PURCHASE." 

THIS ARTICLE OF THE 1794 TREATY SUBSTANTIALLY REPEATED THE PROMISE
GIVEN THE TUSCARORAS IN THE PRIOR 1784 TREATY, 7 STAT. 15, MADE BEFORE
OUR CONSTITUTION WAS ADOPTED, THAT "THE ONEIDA AND TUSCARORA NATIONS
SHALL BE SECURED IN THE POSSESSION OF THE LANDS ON WHICH THEY ARE
SETTLED." 

OF COURSE IT IS TRUE THAT IN 1794, WHEN THE TREATY WAS SIGNED, THE
TUSCARORA NATION DID NOT YET HAVE THE TECHNICAL LEGAL TITLE TO THAT
PART OF THE RESERVATION WHICH THE GOVERNMENT WAS LATER ABLE TO OBTAIN
FOR IT.  BUT THE SOLEMN PLEDGE OF THE UNITED STATES TO ITS WARDS IS NOT
TO BE CONSTRUED LIKE A MONEY-LENDER'S MORTGAGE.  UP TO THIS TIME IT HAS
ALWAYS BEEN THE ESTABLISHED RULE THAT THIS COURT WOULD GIVE TREATIES
WITH THE INDIANS AN ENLARGED INTERPRETATION; ONE THAT WOULD ASSURE THEM
BEYOND ALL DOUBT THAT THIS GOVERNMENT DOES NOT ENGAGE IN SHARP
PRACTICES WITH ITS WARDS.  (FN19) THIS VERY PRINCIPLE OF INTERPRETATION
WAS APPLIED IN THE CASE OF THE NEW YORK INDIANS, 5 WALL.  761, 768,
WHERE THE COURT SAID, ABOUT THIS TREATY:    "IT HAS ALREADY BEEN SHOWN
THAT THE UNITED STATES HAVE ACKNOWLEDGED THE RESERVATIONS TO BE THE
PROPERTY OF THE SENECA NATION - THAT THEY WILL NEVER CLAIM THEM NOR
DISTURB THIS NATION IN THEIR FREE USE AND ENJOYMENT, AND THAT THEY
SHALL REMAIN THEIRS UNTIL THEY CHOOSE TO SELL THEM.  THESE ARE THE
GUARANTEES GIVEN BY THE UNITED STATES, AND WHICH HER FAITH IS PLEDGED
TO UPHOLD." 

AFTER THE TREATY OF 1838 WAS SIGNED, IN WHICH THE TUSCARORAS AGREED
TO GO WEST, THEY DECIDED NOT TO DO SO, AND THE GOVERNMENT RESPECTED
THEIR OBJECTIONS AND LEFT THEM WITH THEIR LAND.  THEY HAVE, SINCE THAT
TIME, HELD IT AS OTHER INDIANS HAVE THROUGHOUT THE NATION.  THIS HAS
BEEN IN ACCORD WITH THE SETTLED GENERAL POLICY TO PRESERVE SUCH
RESERVATIONS AGAINST ANY KIND OF TAKING, WHETHER BY PRIVATE CITIZENS OR
GOVERNMENT, THAT MIGHT RESULT IN DEPRIVING INDIAN TRIBES OF THEIR
HOMELANDS AGAINST THEIR WILL.  (FN20)  PRESIDENT JACKSON, IN 1835,
EXPLAINED THE PURPOSE OF THE REMOVAL AND RESERVATION PROGRAM AS MEANING
THAT, "THE PLEDGE OF THE UNITED STATES HAS BEEN GIVEN BY CONGRESS THAT
THE COUNTRY DESTINED FOR THE RESIDENCE OF THIS PEOPLE SHALL BE FOREVER
'SECURED AND GUARANTEED TO THEM.'"  (FN21)  THIS POLICY WAS SO WELL
SETTLED THAT WHEN THE MISSOURI COMPROMISE BILL WAS BEING DISCUSSED IN
CONGRESS IN 1854 TEXAS SENATOR SAM HOUSTON USED THIS PICTURESQUE
LANGUAGE TO DESCRIBE THE GOVERNMENT'S PROMISE TO THE INDIANS: 

"AS LONG AS WATER FLOWS, OR GRASS GROWS UPON THE EARTH, OR THE SUN
RISES TO SHOW YOUR PATHWAY, OR YOU KINDLE YOUR CAMP FIRES, SO LONG
SHALL YOU BE PROTECTED BY THIS GOVERNMENT, AND NEVER AGAIN REMOVED FROM
YOUR PRESENT HABITATIONS."  (FN22) 

IT WAS TO CARRY OUT THESE SACRED PROMISES MADE TO PROTECT THE
SECURITY OF INDIAN RESERVATIONS THAT CONGRESS ADOPTED SEC. 4(E) WHICH
FORBIDS THE TAKING OF AN INDIAN RESERVATION FOR A POWER PROJECT IF IT
WILL "INTERFERE  ...  WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS
CREATED OR ACQUIRED  ... ."  BUT NO SUCH FINDING WAS MADE OR COULD BE
MADE HERE. 

THERE CAN BE NO DOUBT AS TO THE IMPORTANCE OF THIS POWER PROJECT.  IT
WILL BE ONE OF THE LARGEST IN THIS COUNTRY AND PROBABLY WILL HAVE COST
OVER $700,000,000 WHEN IT IS COMPLETED.  IT IS TRUE THAT IT WILL
UNDOUBTEDLY COST MORE TO BUILD A PROPER RESERVOIR WITHOUT THE TUSCARORA
LANDS, AND THAT THERE HAS ALREADY BEEN SOME DELAY BY REASON OF THIS
CONTROVERSY.  THE USE OF LANDS OTHER THAN THOSE OF THE TRIBE WILL CAUSE
THE ABANDONMENT OF MORE HOMES AND THE REMOVAL OF MORE PEOPLE.  IF THE
DECISION IN THIS CASE DEPENDED EXCLUSIVELY UPON COST AND INCONVENIENCE,
THE AUTHORITY UNDOUBTEDLY WOULD HAVE BEEN JUSTIFIED IN USING THE
TUSCARORA LANDS.  BUT THE FEDERAL POWER ACT REQUIRES FAR MORE THAN THAT
TO JUSTIFY BREAKING UP THIS INDIAN RESERVATION. 

THESE INDIANS HAVE A WAY OF LIFE WHICH THIS GOVERNMENT HAS SEEN FIT
TO PROTECT, IF NOT ACTUALLY TO ENCOURAGE.  COGENT ARGUMENTS CAN BE MADE
THAT IT WOULD BE BETTER FOR ALL CONCERNED IF INDIANS WERE TO ABANDON
THEIR OLD CUSTOMS AND HABITS, AND BECOME INCORPORATED IN THE
COMMUNITIES WHERE THEY RESIDE.  THE FACT REMAINS, HOWEVER, THAT THEY
HAVE NOT DONE THIS AND THAT THEY HAVE CONTINUED THEIR TRIBAL LIFE WITH
TRUST IN A PROMISE OF SECURITY FROM THIS GOVERNMENT. 

OF COURSE, CONGRESS HAS POWER TO CHANGE THIS TRADITIONAL POLICY WHEN
IT SEES FIT.  BUT WHEN SUCH CHANGES HAVE BEEN MADE CONGRESS HAS
ORDINARILY BEEN SCRUPULOUSLY CAREFUL TO SEE THAT NEW CONDITIONS LEAVE
THE INDIANS SATISFIED.  UNTIL CONGRESS HAS A CHANCE TO EXPRESS ITSELF
FAR MORE CLEARLY THAN IT HAS HERE THE TUSCARORAS ARE ENTITLED TO KEEP
THEIR RESERVATION.  IT WOULD BE FAR BETTER TO LET THE POWER AUTHORITY
PRESENT THE MATTER TO CONGRESS AND REQUEST ITS CONSENT TO TAKE THESE
LANDS.  IT IS NOT TOO LATE FOR IT TO DO SO NOW.  IF, AS HAS BEEN ARGUED
HERE, CONGRESS HAS ALREADY IMPLIEDLY AUTHORIZED THE TAKING, THERE CAN
BE NO REASON WHY IT WOULD NOT PASS A MEASURE AT ONCE CONFIRMING ITS
AUTHORIZATION.  IT HAS BEEN KNOWN TO PASS A JOINT RESOLUTION IN ONE DAY
WHERE THIS COURT INTERPRETED AN ACT IN A WAY IT DID NOT LIKE.  SEE
COMMISSIONER V. ESTATE OF CHURCH, 335 U.S. 632, 639-640.  SUCH ACTION
WOULD SIMPLY PUT THIS QUESTION OF AUTHORIZATION BACK INTO THE HANDS OF
THE LEGISLATIVE DEPARTMENT OF THE GOVERNMENT WHERE THE CONSTITUTION
WISELY REPOSED IT.  (FN23) 

IT MAY BE HARD FOR US TO UNDERSTAND WHY THESE INDIANS CLING SO
TENACIOUSLY TO THEIR LANDS AND TRADITIONAL TRIBAL WAY OF LIFE.  (FN24)
THE RECORD DOES NOT LEAVE THE IMPRESSION THAT THE LANDS OF THEIR
RESERVATION ARE THE MOST FERTILE, THE LANDSCAPE THE MOST BEAUTIFUL OR
THEIR HOMES THE MOST SPLENDID SPECIMENS OF ARCHITECTURE.  BUT THIS IS
THEIR HOME - THEIR ANCESTRAL HOME.  THERE, THEY, THEIR CHILDREN, AND
THEIR FOREBEARS WERE BORN.  THEY, TOO, HAVE THEIR MEMORIES AND THEIR
LOVES.  SOME THINGS ARE WORTH MORE THAN MONEY AND THE COSTS OF A NEW
ENTERPRISE. 

THERE MAY BE INSTANCES IN WHICH CONGRESS HAS BROKEN FAITH WITH THE
INDIANS, ALTHOUGH EXAMPLES OF SUCH ACTION HAVE NOT BEEN POINTED OUT TO
US.  WHETHER IT HAS DONE SO BEFORE NOW OR NOT, HOWEVER, I AM NOT
CONVINCED THAT IT HAS DONE SO HERE.  I REGRET THAT THIS COURT IS TO BE
THE GOVERNMENTAL AGENCY THAT BREAKS FAITH WITH THIS DEPENDENT PEOPLE. 
GREAT NATIONS, LIKE GREAT MEN, SHOULD KEEP THEIR WORD. 

FN1  41 STAT. 1063, AS AMENDED, 16 U.S.C. SECS. 791A-828C. 

FN2  WHILE THE PETITIONERS HAVE ARGUED THAT CONGRESS AUTHORIZED THIS
TAKING IN THE 1957 NIAGARA POWER ACT, 71 STAT. 401, 16 U.S.C. SECS. 836
836A, THE COURT DOES NOT ACCEPT THIS ARGUMENT.  NEITHER DO I. THERE IS
ABSOLUTELY NO EVIDENCE THAT CONGRESS WAS IN ANY WAY AWARE THAT THESE
TUSCARORA LANDS WOULD BE REQUIRED BY THE NIAGARA POWER PROJECT.  THE
PETITIONERS HAVE ALSO ARGUED THAT CONGRESS IMPLIEDLY AUTHORIZED THIS
TAKING IN THE 1957 ACT BECAUSE IN FACT THE TUSCARORA LANDS ARE
INDISPENSABLE TO THE NIAGARA POWER PROJECT.  BUT THE RECORD SHOWS THAT
THE RESERVATION LANDS ARE NOT INDISPENSABLE.  THE FEDERAL POWER
COMMISSION FIRST FOUND THAT "OTHER LANDS ARE AVAILABLE."  19 F.P.C.
186, 188.  AND SEE 105 U.S. APP. D.C. 146, 151, 265 F.2D 338, 343.  ON
REMAND THE COMMISSION REFUSED TO FIND THAT THE INDIAN LANDS WERE
INDISPENSABLE, ALTHOUGH IT DID FIND THAT USE OF OTHER LANDS WOULD BE
MUCH MORE EXPENSIVE.  21 F.P.C. 146.  AND SEE 21 F.P.C. 273, 275.  THAT
OTHER LANDS ARE MORE EXPENSIVE IS HARDLY PROOF THAT THE TUSCARORA LANDS
ARE INDISPENSABLE TO THIS $700,000,000 PROJECT. 

FN3  SECTION 4(E) CONTAINS THE GENERAL GRANT OF POWER FOR THE FEDERAL
POWER COMMISSION TO ISSUE LICENSES FOR FEDERAL POWER PROJECTS.  THE
PART THAT IS OF CRUCIAL SIGNIFICANCE HERE READS: 

"LICENSES SHALL BE ISSUED WITHIN ANY RESERVATION ONLY AFTER A FINDING
BY THE COMMISSION THAT THE LICENSE WILL NOT INTERFERE OR BE
INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR
ACQUIRED, AND SHALL BE SUBJECT TO AND CONTAIN SUCH CONDITIONS AS THE
SECRETARY OF THE DEPARTMENT UNDER WHOSE SUPERVISION SUCH RESERVATION
FALLS SHALL DEEM NECESSARY FOR THE ADEQUATE PROTECTION AND UTILIZATION
OF SUCH RESERVATION  ...  ." 

TITLE 16 U.S.C. SEC. 797(E), ENACTED AS SEC. 4(D) IN THE FEDERAL
WATER POWER ACT OF 1920, 41 STAT. 1063, WAS RE-ENACTED IN THE 1935
AMENDMENTS, 49 STAT. 838, AS SEC. 4(E) AND IS REFERRED TO AS SUCH
THROUGHOUT. 

FN4  SECTION 3, 16 U.S.C. SEC. 796, IS THE GENERAL DEFINITIONS
WATER POWER ACT OF 1920, 41 STAT. 1063.  SECTION 3(2) DEFINES THE TERM
"RESERVATIONS." 

FN5 THE COURT'S OPINION STATES:  "INASMUCH AS THE LANDS INVOLVED ARE
OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION  ...  WE HOLD THAT
THEY ARE NOT WITHIN A 'RESERVATION'  ...  ." 

FN6 IN UNITED STATES V. CANDELARIA, 271 U.S. 432, 440, AND UNITED
STATES V. SANDOVAL, 231 U.S. 28, 39, THIS COURT HAS HELD THAT THE
PUEBLOS' FEE SIMPLE OWNERSHIP OF THEIR LANDS HAS NO EFFECT WHATSOEVER
ON THE UNITED STATES' RIGHTS AND RESPONSIBILITIES TOWARDS THESE INDIANS
AND THEIR LANDS.  SEE THE NEW YORK INDIANS, 5 WALL.  761, 767, FOR A
SIMILAR HOLDING AS TO SENECA INDIAN LANDS IN NEW YORK GOVERNED BY THE
SAME TREATY UNDER WHICH THE TUSCARORAS ASSERT THEIR RIGHTS IN THIS
CASE.  AND SEE ALSO UNITED STATES V. HELLARD, 322 U.S. 363, 366 ("THE
GOVERNMENTAL INTEREST  ...  IS AS CLEAR AS IT WOULD BE IF THE FEE WERE
IN THE UNITED STATES"); MINNESOTA V. UNITED STATES, 305 U.S. 382;
HECKMAN V. UNITED STATES, 224 U.S. 413. 

FN7  SEE, E.G., REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS, H.R.
EXEC. DOC. NO. 1, PT. 5, VOL. I, 45TH CONG., 2D SESS. 397, 558-564
(1877).  SEE ALSO 64 STAT. 845, 25 U.S.C. SEC. 233, WHICH SPECIFICALLY
SUBJECTS ALL NEW YORK TRIBES TO REV. STAT. SEC. 2116 (1875), 25 U.S.C.
SEC. 177, WHICH BANS ALIENATION OF THEIR LANDS WITHOUT THE CONSENT OF
CONGRESS.  AND SEE GENERALLY NOTES 6, SUPRA, 9, 11, 16, 17, 20, INFRA. 

FN8  THE COURT OF APPEALS HELD THE UNITED STATES HAD AN ADEQUATE SEC.
3(2) "INTEREST IN" THE TUSCARORA RESERVATION TO REQUIRE A SEC. 4(E)
FINDING.  105 U.S. APP. D.C. 146, 150, 265 F.2D 338, 342.  SEE NOTES 6,
SUPRA, AND 16, INFRA. 

FN9  SEE 51 CONG. REC. 11659-11660, 14561-14562.  AND SEE NOTE 16,
INFRA. 

FN10  SEE, E.G., CHEROKEE NATION V. SOUTHERN KANSAS R. CO., 135 U.S.
641, 657; ELK V. WILKINS, 112 U.S. 94, 99; EX PARTE CROW DOG, 109 U.S.
556, 569; CHEROKEE NATION V. GEORGIA, 5 PET. 1, 17.  SEE ALSO UNITED
STATES V. CANDELARIA, 271 U.S. 432, 442, WHERE THIS COURT POINTED OUT
THAT THE SAME CONCEPT HAD APPLIED UNDER SPANISH AND MEXICAN LAW.  AND
SEE ALSO UNITED STATES V. KAGAMA, 118 U.S. 375, 384 ("DUTY OF
PROTECTION"), AND CHIEF JUSTICE MARSHALL'S LEADING OPINION IN JOHNSON
V. M'INTOSH, 8 WHEAT.  543, 591 ("INDIANS ARE TO BE PROTECTED  ...  IN
THE POSSESSION OF THEIR LANDS"). 

FN11  IN UNITED STATES V. CANDELARIA, 271 U.S. 432, FOR EXAMPLE, THIS
COURT HELD THAT THE UNITED STATES COULD SET ASIDE A DEED FROM THE
PUEBLOS OF LANDS TO WHICH THE INDIANS HAD FEE SIMPLE TITLE, EVEN THOUGH
THE ISSUE IN THE CASE HAD BEEN SETTLED BY OTHERWISE APPLICABLE
PRINCIPLES OF RES JUDICATA IN PRIOR LITIGATION TO WHICH THE INDIANS,
BUT NOT THE UNITED STATES, HAD BEEN A PARTY.  SEE NOTE 9, SUPRA. 

FN12  FOR GENERAL DISCUSSIONS OF THE TUSCARORAS' HISTORY SEE HODGE
(EDITOR), HANDBOOK OF AMERICAN INDIANS (1910), PT. 2, 842-853,
SMITHSONIAN INSTITUTION BUREAU OF AMERICAN ETHNOLOGY, BULLETIN 30, H.R.
DOC. NO. 926, PART 2, 59TH CONG., 1ST SESS.; COHEN, HANDBOOK OF FEDERAL
INDIAN LAW (1941), 423; MORGAN, LEAGUE OF THE IROQUOIS (1904), I, 23,
42, 93, II, 77, 187, 305; CUSICK, ANCIENT HISTORY OF THE SIX NATIONS
(1848), 31-35; H.R. DOC. NO. 1590, 63D CONG., 3D SESS. 7, 11-15 (1915);
H.R. EXEC. DOC. NO. 1, PT. 5, VOL. I, 45TH CONG., 2D SESS. 562-563
(1877).  AND SEE STATEMENTS IN NEW YORK INDIANS V. UNITED STATES, 30
CT. CL. 413 (1895); TUSCARORA NATION OF INDIANS V. POWER AUTHORITY OF
NEW YORK, 164 F. SUPP. 107 (D.C.W.D.N.Y.  1958); PEOPLE EX REL. CUSICK
V. DALY, 212 N.Y. 183, 190, 105 N.E. 1048, 1050 (1914). 

FN13  SEE HANDBOOK OF AMERICAN INDIANS, OP. CIT., SUPRA, NOTE 12, AT
848; WILSON, APOLOGIES TO THE IROQUOIS (1960), 135. 

FN14  LETTER FROM THEOPHILE CAZENOVE TO JOSEPH ELLICOTT, MAY 10,
1798, 1 BINGHAM (EDITOR), HOLLAND LAND COMPANY'S PAPERS:  REPORTS OF
JOSEPH ELLICOTT (BUFFALO HIST. SOC. PUB. VOL. 32, 1937) 21, 23. 

FN15  IN ADDITION TO THE GENERAL HISTORIES CITED, NOTE 12, SUPRA,
THIS PARTICULAR TRANSACTION IS DESCRIBED IN VARIOUS LETTERS AND
SPEECHES OF THE TUSCARORAS AND THE SECRETARY OF WAR.  SEE LETTERS SENT
BY THE SECRETARY OF WAR RELATING TO INDIAN AFFAIRS (NATIONAL ARCHIVES,
RECORD GROUP 75, INTERIOR BRANCH), VOL. A, 18-19, 22-23, 113-114, 117
119, 147-148, 402, 425-426, 438-439, VOL. B, 29, 274, 421; 6 BUFFALO
HIST. SOC. PUB. 221; AND LETTER FROM ERASTUS GRANGER TO SECRETARY OF
WAR HENRY DEARBORN, JULY 20, 1804, IN BUFFALO HIST. SOC. MANUSCRIPT
FILES.  THE DEEDS ARE RECORDED IN THE NIAGARA COUNTY CLERK'S OFFICE,
LOCKPORT, NEW YORK, NOV. 21, 1804, LIBER B, PP. 2-7; JAN. 2, 1809,
LIBER A, P. 5.  "IN 1804 CONGRESS AUTHORIZED THE SECRETARY OF WAR TO
PURCHASE ADDITIONAL LAND FOR THESE INDIANS."  FROM A DEPARTMENT OF
INTERIOR LETTER, H.R. DOC. NO. 1590, 63D CONG., 3D SESS. 7.  AND SEE
THE COURT'S NOTE 10, AND FELLOWS V. BLACKSMITH, 19 HOW.  366. 

FN16  TREATY OF JANUARY 15, 1838, 7 STAT. 550, 554 (ARTICLE 14,
"SPECIAL PROVISIONS FOR THE TUSCARORAS"). 

THE INTEREST OF THE GOVERNMENT IN INDIAN LANDS WAS A PART OF THE LAW
OF SPAIN, MEXICO, GREAT BRITAIN AND OTHER EUROPEAN POWERS DURING PRE
COLONIAL DAYS.  UNITED STATES V. CANDELARIA, 271 U.S. 432, 442; UNITED
STATES V. KAGAMA, 118 U.S. 375, 381; WORCESTER V. GEORGIA, 6 PET. 515,
551-552; CHEROKEE NATION V. GEORGIA, 5 PET. 1, 17-18.  THE ORIGINAL
ARTICLES OF CONFEDERATION PROVIDED FOR CONGRESSIONAL CONTROL OF INDIAN
AFFAIRS IN ARTICLE 9.  A SIMILAR PROVISION IS IN THE COMMERCE CLAUSE OF
THE PRESENT CONSTITUTION.  ONE OF THE FIRST ACTS OF THE NEW CONGRESS
WAS THE SO-CALLED NON-INTERCOURSE ACT OF JULY 22, 1790, 1 STAT. 137,
WHICH PROVIDED, IN SEC. 4, "THAT NO SALE OF LANDS MADE BY ANY INDIANS
...  SHALL BE VALID  ...  UNLESS THE SAME SHALL BE MADE AND DULY
EXECUTED AT SOME PUBLIC TREATY, HELD UNDER THE AUTHORITY OF THE UNITED
STATES."  THE SIMILAR PROVISION IS PRESENTLY FOUND IN 25 U.S.C. SEC.
177, AS MODIFIED BY REV. STAT. SEC. 2079, 25 U.S.C. SEC. 71. 

FN17  TREATY OF NOVEMBER 11, 1794, 7 STAT. 44.  ARTICLE VI OF THAT
TREATY PROVIDES:    "BECAUSE THE UNITED STATES DESIRE, WITH HUMANITY
AND KINDNESS, TO CONTRIBUTE TO THEIR COMFORTABLE SUPPORT  ...  THE
UNITED STATES WILL ADD THE SUM OF THREE THOUSAND DOLLARS TO THE ONE
THOUSAND FIVE HUNDRED DOLLARS, HERETOFORE ALLOWED THEM BY AN ARTICLE
RATIFIED BY THE PRESIDENT APRIL 23, 1792; MAKING IN THE WHOLE, FOUR
THOUSAND FIVE HUNDRED DOLLARS; WHICH SHALL BE EXPENDED YEARLY FOREVER,
IN PURCHASING CLOATHING, ETC.  ...  ." 

EVERY CONGRESS UNTIL THE 81ST INDICATED THAT THEIR $4,500 ANNUAL
APPROPRIATION RESTED UPON "ARTICLE 6, TREATY OF NOVEMBER 11, 1794." 
E.G., 62 STAT. 1120, 80TH CONG., 2D SESS.  SUBSEQUENT CONGRESSES SIMPLY
APPROPRIATED A TOTAL AMOUNT FOR INDIAN TREATY OBLIGATIONS INCLUDING
"TREATIES WITH SENECAS AND SIX NATIONS OF NEW YORK  ...  ."  E.G., 63
STAT. 774, 81ST CONG., 1ST SESS.  IN 1951 THE 82D  CONG., 1ST SESS.,
APPROPRIATED SIMPLY "SUCH AMOUNTS AS MAY BE NECESSARY AFTER JUNE 30,
1951" FOR THIS PURPOSE.  65 STAT. 254.  AT THE HEARINGS IT WAS
EXPLAINED THAT THIS PROVISION "WOULD HAVE THE EFFECT OF BEING PERMANENT
LAW INSOFAR AS MAKING THE FUNDS AVAILABLE WITHOUT HAVING TO BE INCLUDED
IN EACH ANNUAL APPROPRIATION ACT  ...  .  IT IS A TREATY OBLIGATION AND
HAS ALWAYS BEEN PAID BY THE GOVERNMENT IN FULL  ...  .  THESE TREATIES
HAVE BEEN IN EXISTENCE FOR MANY, MANY YEARS."   DIRECTOR D. OTIS
BEASLEY, DIVISION OF BUDGET AND FINANCE, DEPARTMENT OF THE INTERIOR,
HEARINGS ON INTERIOR DEPARTMENT APPROPRIATIONS FOR 1952 BEFORE THE
SUBCOMMITTEE ON INTERIOR DEPARTMENT OF THE HOUSE COMMITTEE ON
APPROPRIATIONS, 82D CONG., 1ST SESS., PT. 2, 1747, 1764. 

FN18  "KANATSOYH, ALIAS NICHOLAS KUSIK," SIGNED THE 1794 TREATY AS A
TUSCARORA, BUT IS NOT SO IDENTIFIED THERE.  HOWEVER, HE ALSO SIGNED THE
TREATIES OF DECEMBER 2, 1794, 7 STAT. 47, AND JANUARY 15, 1838, 7 STAT.
550, FOR THE TUSCARORA NATION AND IS LISTED THERE AS A "TUSCARORA."  IT
HAS NEVER EVEN BEEN HINTED, UNTIL THE COURT'S NOTE 18 TODAY, THAT THE
TUSCARORA NATION IS FOR SOME REASON NOT INCLUDED IN THIS NOVEMBER 11,
1794, SIX NATIONS' TREATY. 

FN19  THE KANSAS INDIANS, 5 WALL.  737, 760 ("ENLARGED RULES OF
CONSTRUCTION ARE ADOPTED IN REFERENCE TO INDIAN TREATIES"); WORCESTER
V. GEORGIA, 6 PET. 515, 582 ("THE LANGUAGE USED IN TREATIES WITH THE
INDIANS SHOULD NEVER BE CONSTRUED TO THEIR PREJUDICE  ...  .  HOW THE
WORDS OF THE TREATY WERE UNDERSTOOD BY THIS UNLETTERED PEOPLE, RATHER
THAN THEIR CRITICAL MEANING, SHOULD FORM THE RULE OF
CONSTRUCTION")(CONCURRING OPINION); TULEE V. WASHINGTON, 315 U.S. 681,
683-685 ("IN A SPIRIT WHICH GENEROUSLY RECOGNIZES THE FULL OBLIGATION
OF THIS NATION TO PROTECT THE INTERESTS OF A DEPENDENT PEOPLE").  AND
SEE SPALDING V. CHANDLER, 160 U.S. 394, 405; ELK V. WILKINS, 112 U.S.
94, 100; EX PARTE CROW DOG, 109 U.S. 556, 572; UNITED STATES V. ROGERS,
4 HOW.  567, 572. 

FN20  THE ORIGINS OF THIS POLICY EXTEND INTO PRE-COLONIAL BRITISH
HISTORY.  AS CHIEF JUSTICE MARSHALL SAID IN WORCESTER V. GEORGIA, 6
PET. 515, 547, IN SPEAKING OF THE INDIAN LAND POLICY: 

"THE KING PURCHASED THEIR LANDS WHEN THEY WERE WILLING TO SELL, AT A
PRICE THEY WERE WILLING TO TAKE; BUT NEVER COERCED A SURRENDER OF
THEM." 

CHIEF JUSTICE MARSHALL QUOTED AT THE SAME PLACE SIMILAR LANGUAGE FROM
A SPEECH MADE TO THE AMERICAN INDIANS BY THE BRITISH SUPERINTENDENT OF
INDIAN AFFAIRS IN 1763.  THIS PRINCIPLE HAS BEEN CONSISTENTLY
RECOGNIZED BY THIS GOVERNMENT AND THIS COURT.  SPALDING V. CHANDLER,
160 U.S. 394, 403; UNITED STATES V. FORTY-THREE GALLONS OF WHISKEY, 93
U.S. 188, 197; THE NEW YORK INDIANS, 5 WALL.  761, 768; CHEROKEE NATION
V. GEORGIA, 5 PET. 1, 17; JOHNSON V. M'INTOSH, 8 WHEAT.  543.  AND SEE
48 STAT. 987, 25 U.S.C. SEC. 476; 25 U.S.C. SECS. 311-328 AND 25 CFR
SEC. 161.3(A). 

THE AGE AND SCOPE OF THIS DOCTRINE OF GUARDIANSHIP AND FAIRNESS TO
THE INDIANS IS WELL ILLUSTRATED IN A STATEMENT MADE BY PRESIDENT
WASHINGTON, DECEMBER 29, 1790, RESPONDING TO AN ADDRESS BY THE CHIEFS
AND COUNCILORS OF THE SENECA NATION: 

"I AM NOT UNINFORMED, THAT THE SIX NATIONS HAVE BEEN LED INTO SOME
DIFFICULTIES, WITH RESPECT TO THE SALE OF THEIR LANDS, SINCE THE
PEACE.  BUT I MUST INFORM YOU THAT THESE EVILS AROSE BEFORE THE PRESENT
GOVERNMENT OF THE UNITED STATES WAS ESTABLISHED, WHEN THE SEPARATE
STATES, AND INDIVIDUALS UNDER THEIR AUTHORITY, UNDERTOOK TO TREAT WITH
THE INDIAN TRIBES RESPECTING THE SALE OF THEIR LANDS.   BUT THE CASE IS
NOW ENTIRELY ALTERED; THE GENERAL GOVERNMENT, ONLY, HAS THE POWER TO
TREAT WITH THE INDIAN NATIONS, AND ANY TREATY FORMED, AND HELD WITHOUT
ITS AUTHORITY, WILL NOT BE BINDING. 

"HERE, THEN, IS THE SECURITY FOR THE REMAINDER OF YOUR LANDS.  NO
STATE, NOR PERSON, CAN PURCHASE YOUR LANDS, UNLESS AT SOME PUBLIC
TREATY, HELD UNDER THE AUTHORITY OF THE UNITED STATES.  THE GENERAL
GOVERNMENT WILL NEVER CONSENT TO YOUR BEING DEFRAUDED, BUT IT WILL
PROTECT YOU IN ALL YOUR JUST RIGHTS."  4 AMERICAN STATE PAPERS (INDIAN
AFFAIRS, VOL. I, 1832) 142; 31 WASHINGTON, WRITINGS (UNITED STATES
GEORGE WASHINGTON BICENTENNIAL COMM'N ED. 1939) 179, 180. 

FN21  SEVENTH ANNUAL MESSAGE, DEC. 7, 1835, 3 RICHARDSON, MESSAGES
AND PAPERS OF THE PRESIDENTS 1789-1897, 147, 172. 

FN22  CONG. GLOBE, 33D CONG., 1ST SESS., APP. 202.  SEE 1 MORISON AND
COMMAGER, THE GROWTH OF THE AMERICAN REPUBLIC (1950), 621. 

FN23  SEE, E.G., UNITED STATES V. HELLARD, 322 U.S. 363, 367 ("THE
POWER OF CONGRESS OVER INDIAN AFFAIRS IS PLENARY"); UNITED STATES V.
SANDOVAL, 231 U.S. 28, 45-46; TIGER V. WESTERN INVESTMENT CO., 221 U.S.
286, 315 ("IT IS FOR THAT BODY (CONGRESS), AND NOT THE COURTS"); LONE
WOLF V. HITCHCOCK, 187 U.S. 553, 565 ("PLENARY AUTHORITY OVER THE
TRIBAL RELATIONS OF THE INDIANS HAS BEEN EXERCISED BY CONGRESS FROM THE
BEGINNING  ...  NOT  ...  THE JUDICIAL DEPARTMENT OF THE GOVERNMENT");
UNITED STATES V. ROGERS, 4 HOW.  567, 572. 

FN24  "AS WE UNDERSTAND THE POSITION OF THE TRIBE, THEY DO NOT
COMPLAIN SO MUCH OF A POSSIBLE LEASE OR LICENSE FOR THE USE OF THE
LANDS AS THEY COMPLAIN OF A POSSIBLE PERMANENT LOSS OF PART OF THEIR
HOMELANDS."  LETTER FROM UNDER SECRETARY OF THE INTERIOR BENNETT TO
FEDERAL POWER COMMISSION CHAIRMAN KUYKENDALL, DECEMBER 19, 1958,
RELATING TO THE TAKING OF THESE TUSCARORA LANDS FOR THE NIAGARA POWER
PROJECT. 
..END :


















SUBLETT V. ADAMS 362 U.S. 143 


NO. 406, MISC. - DECIDED MARCH 7, 1960. 


PETITIONER APPLIED TO A STATE SUPREME COURT FOR WRIT OF HABEAS CORPUS,
CHARGING THAT HIS CONFINEMENT WAS IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  THAT COURT REFUSED THE WRIT
WITHOUT EITHER A HEARING OR A RESPONSE FROM THE STATE.  HELD:  THE
FACTS ALLEGED ENTITLE PETITIONER TO A HEARING UNDER HERMAN V. CLAUDY,
350 U.S. 116.  CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE
REMANDED. 

SUBLETT V. ADAMS, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
WEST VIRGINIA. 

PER CURIAM. 

THE MOTION TO PROCEED IN FORMA PAUPERIS AND THE PETITION FOR WRIT OF
CERTIORARI ARE GRANTED.  PETITIONER FILED A PETITION FOR A WRIT OF
HABEAS CORPUS IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 
PETITIONER CHARGED THAT HE WAS BEING HELD IN PRISON WITHOUT LAWFUL
AUTHORITY AND IN VIOLATION OF DUE PROCESS OF LAW UNDER THE FOURTEENTH
AMENDMENT.  THE WEST VIRGINIA SUPREME COURT OF APPEALS REFUSED THE WRIT
WITHOUT EITHER A HEARING OR A RESPONSE FROM THE STATE. 

WE HOLD THAT THE FACTS ALLEGED ARE SUCH AS TO ENTITLE PETITIONER TO A
HEARING UNDER HERMAN V. CLAUDY, 350 U.S. 116.  THE JUDGMENT IS VACATED
AND THE CASE REMANDED TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :

















CORSO V. SECURITY-FIRST NATIONAL BANK OF LOS ANGELES 362 U.S. 144 


NO. 652.  - DECIDED MARCH 7, 1960.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  171 CAL. APP. 2D 816,
342 P.2D 56. 


CORSO V. SECURITY-FIRST NATIONAL BANK OF LOS ANGELES, EXECUTOR. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :












NELSON V. COUNTY OF LOS ANGELES 362 U.S. 1 


NO. 152.  ARGUED JANUARY 13, 1960 - DECIDED FEBRUARY 29, 1960 - 163 CAL.
APP. 2D 607, 329 P.2D 978, AFFIRMED BY AN EQUALLY DIVIDED COURT.  - 163
CAL. APP. 2D 595, 329 P.2D 971.  AFFIRMED. 


PETITIONERS, WHEN EMPLOYEES OF A CALIFORNIA COUNTY, WERE SUBPOENAED BY
AND APPEARED BEFORE A SUBCOMMITTEE OF THE HOUSE UN-AMERICAN ACTIVITIES
COMMITTEE; BUT, IN VIOLATION OF SPECIFIC ORDERS OF THE COUNTY BOARD OF
SUPERVISORS AND THE REQUIREMENTS OF SEC. 1028.1 OF THE GOVERNMENT CODE
OF CALIFORNIA, REFUSED TO ANSWER CERTAIN QUESTIONS CONCERNING
SUBVERSION.  THE COUNTY DISCHARGED THEM ON GROUNDS OF INSUBORDINATION
AND VIOLATION OF SEC. 1028.1.  NELSON, A PERMANENT EMPLOYEE, WAS GIVEN
A CIVIL SERVICE COMMISSION HEARING, WHICH RESULTED IN CONFIRMATION OF
HIS DISCHARGE.  GLOBE, A TEMPORARY EMPLOYEE, WAS DENIED A HEARING,
SINCE HE WAS NOT ENTITLED TO IT UNDER THE APPLICABLE RULES.  BOTH SUED
FOR REINSTATEMENT, CONTENDING THAT SEC. 1028.1 AND THEIR DISCHARGES
VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT; BUT THEIR
DISCHARGES WERE AFFIRMED BY A CALIFORNIA STATE COURT.  HELD: 

1.  IN NELSON'S CASE, THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED
COURT.  P. 4. 

2.  GLOBE'S DISCHARGE DID NOT VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, AND THE JUDGMENT IN HIS CASE IS AFFIRMED.  PP. 4
9. 

(A)  GLOBE'S DISCHARGE WAS NOT BASED ON HIS INVOCATION BEFORE THE
SUBCOMMITTEE OF HIS RIGHTS UNDER THE FIRST AND FIFTH AMENDMENTS; IT WAS
BASED SOLELY ON INSUBORDINATION AND VIOLATION OF SEC. 1028.1.   P. 6. 

(B)  UNDER CALIFORNIA LAW, GLOBE HAD NO VESTED RIGHT TO COUNTY
EMPLOYMENT AND WAS SUBJECT TO SUMMARY DISCHARGE.  P. 6. 

(C)  GLOBE'S DISCHARGE WAS NOT ARBITRARY AND UNREASONABLE.  SLOCHOWER
V. BOARD OF EDUCATION, 350 U.S. 551, DISTINGUISHED.  BEILAN V. BOARD OF
EDUCATION, 357 U.S. 399, AND LERNER V. CASEY, 357 U.S. 468, FOLLOWED. 
PP. 6-8. 

(D)  THE REMAND ON PROCEDURAL GROUNDS REQUIRED IN VITARELLI V.
SEATON, 359 U.S. 535, HAS NO BEARING ON THIS CASE.  PP. 8-9. 

NELSON ET AL. V. COUNTY OF LOS ANGELES ET AL. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, WHEN EMPLOYEES OF THE COUNTY OF LOS ANGELES, CALIFORNIA,
WERE SUBPOENAED BY AND APPEARED BEFORE A SUBCOMMITTEE OF THE HOUSE UN
AMERICAN ACTIVITIES COMMITTEE, BUT REFUSED TO ANSWER CERTAIN QUESTIONS
CONCERNING SUBVERSION.  PREVIOUSLY, EACH PETITIONER HAD BEEN ORDERED BY
THE COUNTY BOARD OF SUPERVISORS TO ANSWER ANY QUESTIONS ASKED BY THE
SUBCOMMITTEE RELATING TO HIS SUBVERSIVE ACTIVITY, AND SEC. 1028.1 OF
THE GOVERNMENT CODE OF THE STATE OF CALIFORNIA (FN1) MADE IT THE DUTY
OF ANY PUBLIC EMPLOYEE TO GIVE TESTIMONY RELATING TO SUCH ACTIVITY ON
PAIN OF DISCHARGE "IN THE MANNER PROVIDED BY LAW."  THEREAFTER THE
COUNTY DISCHARGED PETITIONERS ON THE GROUND OF INSUBORDINATION AND
VIOLATION OF SEC.  1028.1 OF THE CODE.  NELSON, A PERMANENT SOCIAL
WORKER EMPLOYED BY THE COUNTY'S DEPARTMENT OF CHARITIES, WAS, UPON HIS
REQUEST, GIVEN A CIVIL SERVICE COMMISSION HEARING WHICH RESULTED IN A
CONFIRMATION OF HIS DISCHARGE.  GLOBE WAS A TEMPORARY EMPLOYEE OF THE
SAME DEPARTMENT AND WAS DENIED A HEARING ON HIS DISCHARGE ON THE GROUND
THAT, AS SUCH, HE WAS NOT ENTITLED TO A HEARING UNDER THE CIVIL SERVICE
RULES ADOPTED PURSUANT TO THE COUNTY CHARTER.  PETITIONERS THEN FILED
THESE PETITIONS FOR MANDATES SEEKING REINSTATEMENT, CONTENDING THAT THE
CALIFORNIA STATUTE AND THEIR DISCHARGES VIOLATED THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  NELSON'S DISCHARGE WAS AFFIRMED BY THE
DISTRICT COURT OF APPEAL, 163 CAL. APP. 2D 607, 329 P.2D 978, AND
GLOBE'S SUMMARY DISMISSAL WAS LIKEWISE AFFIRMED, 163 CAL. APP. 2D 595,
329 P.2D 971.  A PETITION FOR REVIEW IN EACH OF THE CASES WAS DENIED
WITHOUT OPINION BY THE SUPREME COURT OF CALIFORNIA, THREE JUDGES
DISSENTING.  163 CAL. APP. 2D 614, 329 P.2D 983; 163 CAL. APP. 2D 606,
329 P.2D 978.  WE GRANTED CERTIORARI.  360 U.S. 928.  THE JUDGMENT IN
NELSON'S CASE IS AFFIRMED BY AN EQUALLY DIVIDED COURT AND WILL NOT BE
DISCUSSED.  WE CONCLUDE THAT GLOBE'S DISMISSAL WAS VALID. 

ON APRIL 6, 1956, GLOBE WAS SERVED WITH A SUBPOENA TO APPEAR BEFORE
THE SUBCOMMITTEE AT LOS ANGELES.  ON THE SAME DATE, HE WAS SERVED WITH
A COPY OF AN ORDER OF THE COUNTY BOARD OF SUPERVISORS, ORIGINALLY
ISSUED FEBRUARY 19, 1952, CONCERNING APPEARANCES BEFORE THE
SUBCOMMITTEE.  THIS ORDER PROVIDED, AMONG OTHER THINGS, THAT IT WAS THE
DUTY OF ANY EMPLOYEE TO APPEAR BEFORE THE SUBCOMMITTEE WHEN SO ORDERED
OR SUBPOENAED, AND TO ANSWER QUESTIONS CONCERNING SUBVERSION.  THE
ORDER SPECIFICALLY STATED THAT ANY "EMPLOYEE WHO DISOBEYS THE
DECLARATION OF THIS DUTY AND ORDER WILL BE CONSIDERED TO HAVE BEEN
INSUBORDINATE  ...  AND THAT SUCH INSUBORDINATION SHALL CONSTITUTE
GROUNDS FOR DISCHARGE ...  ."  (FN2)  AT THE APPOINTED TIME, GLOBE
APPEARED BEFORE THE SUBCOMMITTEE AND WAS INTERROGATED BY ITS COUNSEL
CONCERNING HIS FAMILIARITY WITH THE JOHN REID CLUB.  HE CLAIMED THAT
THIS WAS A MATTER WHICH WAS ENTIRELY HIS "OWN BUSINESS," AND, UPON
BEING PRESSED FOR AN ANSWER, HE STATED THAT THE QUESTION WAS
"COMPLETELY OUT OF LINE AS FAR AS MY RIGHTS AS A CITIZEN ARE CONCERNED,
AND I REFUSE TO ANSWER THIS QUESTION UNDER THE FIRST AND FIFTH
AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES."  ON THE SAME
GROUNDS HE REFUSED TO ANSWER FURTHER QUESTIONS CONCERNING THE CLUB,
INCLUDING ONE RELATING TO HIS OWN MEMBERSHIP.  UPON BEING ASKED IF HE
HAD OBSERVED ANY COMMUNIST ACTIVITIES ON THE PART OF MEMBERS OF THE
CLUB, GLOBE REFUSED TO ANSWER, AND SUGGESTED TO COMMITTEE COUNSEL "THAT
YOU GET ONE OF YOUR TRAINED SEALS UP HERE AND ASK THEM."  HE REFUSED TO
TESTIFY WHETHER HE WAS "A MEMBER OF THE COMMUNIST PARTY NOW" "ON THE
SAME GROUNDS" AND "AS PREVIOUSLY STATED FOR PREVIOUS REASONS."  ON MAY
2, BY LETTER, GLOBE WAS DISCHARGED, "WITHOUT FURTHER NOTICE," ON "THE
GROUNDS THAT HE HAD BEEN GUILTY OF INSUBORDINATION AND OF VIOLATION OF
."  THE LETTER RECITED THE FACT THAT GLOBE HAD BEEN SERVED WITH A COPY
OF THE BOARD ORDER RELATING TO HIS "DUTY TO TESTIFY AS A COUNTY
EMPLOYEE  ...  BEFORE SAID COMMITTEE" AND THAT, ALTHOUGH APPEARING AS
DIRECTED, HE HAD REFUSED TO ANSWER THE QUESTION, "ARE YOU A MEMBER OF
THE COMMUNIST PARTY NOW?"  THEREAFTER GLOBE REQUESTED A HEARING BEFORE
THE LOS ANGELES COUNTY CIVIL SERVICE COMMISSION, BUT IT FOUND THAT, AS
A TEMPORARY EMPLOYEE, HE WAS NOT ENTITLED TO A HEARING UNDER THE CIVIL
SERVICE RULES.  (FN3)  THIS THE PETITIONER DOES NOT DISPUTE. 

HOWEVER, GLOBE CONTENDS THAT, DESPITE HIS TEMPORARY STATUS, HIS
SUMMARY DISCHARGE WAS ARBITRARY AND UNREASONABLE AND, THEREFORE,
VIOLATIVE OF DUE PROCESS.  HE REASONS THAT HIS DISCHARGE WAS BASED ON
HIS INVOCATION BEFORE THE SUBCOMMITTEE OF HIS RIGHTS UNDER THE FIRST
AND FIFTH AMENDMENTS.  BUT THE RECORD DOES NOT SUPPORT EVEN AN
INFERENCE IN THIS REGARD, AND BOTH THE ORDER AND THE STATUTE UPON WHICH
THE DISCHARGE WAS BASED AVOIDED IT.  IN FACT, CALIFORNIA'S COURT HELD
TO THE CONTRARY, SAYING, "AT NO TIME HAS THE CAUSE OF PETITIONER'S
DISCHARGE BEEN ALLEGED TO BE ANYTHING BUT INSUBORDINATION AND A
VIOLATION OF SECTION 1028.1, NOR INDEED UNDER THE RECORD BEFORE US
COULD IT BE."  163 CAL. APP. 2D, AT 599, 329 P.2D, AT 974.  MOREOVER,
THIS FINDING IS BUTTRESSED BY THE LANGUAGE OF THE ORDER AND OF
CALIFORNIA'S STATUTE.  BOTH REQUIRE THE EMPLOYEE TO ANSWER ANY
INTERROGATION IN THE FIELD OUTLINED.  FAILURE TO ANSWER "ON ANY GROUND
WHATSOEVER ANY SUCH QUESTIONS" RENDERS THE EMPLOYEE "GUILTY OF
INSUBORDINATION" AND REQUIRES THAT HE "BE SUSPENDED AND DISMISSED FROM
HIS EMPLOYMENT IN THE MANNER PROVIDED BY LAW."  CALIFORNIA LAW IN THIS
REGARD, AS DECLARED BY ITS COURT, IS THAT GLOBE "HAS NO VESTED RIGHT TO
COUNTY EMPLOYMENT AND MAY THEREFORE BE DISCHARGED SUMMARILY."  WE TAKE
THIS INTERPRETATION OF CALIFORNIA LAW AS BINDING UPON US. 

WE, THEREFORE, REACH GLOBE'S CONTENTION THAT HIS SUMMARY DISCHARGE
WAS NEVERTHELESS ARBITRARY AND UNREASONABLE.  IN THIS REGARD HE PLACES
HIS RELIANCE ON SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551 (1956). 
HOWEVER, THE NEW YORK STATUTE UNDER WHICH SLOCHOWER WAS DISCHARGED
SPECIFICALLY OPERATED "TO DISCHARGE EVERY CITY EMPLOYEE WHO INVOKES THE
FIFTH AMENDMENT.  IN PRACTICAL EFFECT THE QUESTIONS ASKED ARE TAKEN AS
CONFESSED AND MADE THE BASIS OF THE DISCHARGE."  ID., AT 558.  THIS
"BUILT-IN" INFERENCE OF GUILT, DERIVED SOLELY FROM A FIFTH AMENDMENT
CLAIM, WE HELD TO BE ARBITRARY AND UNREASONABLE.  BUT THE TEST HERE,
RATHER THAN BEING THE INVOCATION OF ANY CONSTITUTIONAL PRIVILEGE, IS
THE FAILURE OF THE EMPLOYEE TO ANSWER.  CALIFORNIA HAS NOT PREDICATED
DISCHARGE ON ANY "BUILT-IN" INFERENCE OF GUILT IN ITS STATUTE, BUT
SOLELY ON EMPLOYEE INSUBORDINATION FOR FAILURE TO GIVE INFORMATION
WHICH WE HAVE HELD THAT THE STATE HAS A LEGITIMATE INTEREST IN
SECURING.  SEE GARNER V. BOARD OF PUBLIC WORKS OF LOS ANGELES, 341 U.S.
716 (1951); ADLER V. BOARD OF EDUCATION, 342 U.S. 485 (1952).  MOREOVER
IT MUST BE REMEMBERED THAT HERE - UNLIKE SLOCHOWER - THE BOARD HAD
SPECIFICALLY ORDERED ITS EMPLOYEES TO APPEAR AND ANSWER. 

WE CONCLUDE THAT THE CASE IS CONTROLLED BY BEILAN V. BOARD OF
EDUCATION OF PHILADELPHIA, 357 U.S. 399 (1958), AND LERNER V. CASEY,
357 U.S. 468 (1958).  IT IS NOT DETERMINATIVE THAT THE INTERROGATION
HERE WAS BY A FEDERAL BODY RATHER THAN A STATE ONE, AS IT WAS IN THOSE
CASES.  GLOBE HAD BEEN ORDERED BY HIS EMPLOYER AS WELL AS BY
CALIFORNIA'S LAW TO APPEAR AND ANSWER QUESTIONS BEFORE THE FEDERAL
SUBCOMMITTEE.  THESE MANDATES MADE NO REFERENCE TO FIFTH AMENDMENT
PRIVILEGES.  IF GLOBE HAD SIMPLY REFUSED, WITHOUT MORE, TO ANSWER THE
SUBCOMMITTEE'S QUESTIONS, WE THINK THAT UNDER THE PRINCIPLES OF BEILAN
AND LERNER CALIFORNIA COULD CERTAINLY HAVE DISCHARGED HIM.  THE FACT
THAT HE CHOSE TO PLACE HIS REFUSAL ON A FIFTH AMENDMENT CLAIM PUTS THE
MATTER IN NO DIFFERENT POSTURE, FOR AS IN LERNER, SUPRA, AT 477,
CALIFORNIA DID NOT EMPLOY THAT CLAIM AS THE BASIS FOR DRAWING AN
INFERENCE OF GUILT.  NOR DO WE THINK THAT THIS DISCHARGE IS VITIATED BY
ANY DETERRENT EFFECT THAT CALIFORNIA'S LAW MIGHT HAVE HAD ON GLOBE'S
EXERCISE OF HIS FEDERAL CLAIM OF PRIVILEGE.  THE STATE MAY NEVERTHELESS
LEGITIMATELY PREDICATE DISCHARGE ON REFUSAL TO GIVE INFORMATION
TOUCHING ON THE FIELD OF SECURITY.  SEE GARNER AND ADLER, SUPRA.
LIKEWISE, WE CANNOT SAY AS A MATTER OF DUE PROCESS THAT THE STATE'S
CHOICE OF SECURING SUCH INFORMATION BY MEANS OF TESTIMONY BEFORE A
FEDERAL BODY (FN4) CAN BE DENIED.  FINALLY, WE DO NOT BELIEVE THAT
CALIFORNIA'S GROUNDS FOR DISCHARGE CONSTITUTED AN ARBITRARY
CLASSIFICATION.  SEE LERNER, ID., AT 478.  WE CONCLUDE THAT THE ORDER
OF THE COUNTY BOARD WAS NOT INVALID UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT. 

NOR DO WE BELIEVE THAT THE REMAND ON PROCEDURAL GROUNDS REQUIRED IN
VITARELLI V. SEATON, 359 U.S. 535 (1959), HAS ANY BEARING HERE.  FIRST,
WE DID NOT REACH THE CONSTITUTIONAL ISSUES RAISED IN THAT CASE.  NEXT,
VITARELLI WAS A FEDERAL DEPARTMENT OF INTERIOR EMPLOYEE WHO "COULD HAVE
BEEN SUMMARILY DISCHARGED BY THE SECRETARY AT ANY TIME WITHOUT GIVING
OF A REASON."  ID., AT 539.  THE COURT HELD, HOWEVER, THAT, SINCE
VITARELLI WAS DISMISSED ON THE GROUNDS OF NATIONAL SECURITY RATHER THAN
BY SUMMARY DISCHARGE, AND HIS DISMISSAL "FELL SUBSTANTIALLY SHORT OF
THE REQUIREMENTS OF THE APPLICABLE DEPARTMENTAL REGULATIONS," IT WAS
"ILLEGAL AND OF NO EFFECT."  ID., AT 545.  BUT PETITIONER HERE RAISES
NO SUCH POINT, AND CLEARLY ASSERTS THAT "WHETHER OR NOT PETITIONER
GLOBE WAS ACCORDED A HEARING IS NOT THE ISSUE HERE."  (FN5)  HE BASES
HIS WHOLE CASE ON THE CLAIM "THAT DUE PROCESS AFFORDS PETITIONER GLOBE
PROTECTION AGAINST THE STATE'S DEPRIVING HIM OF EMPLOYMENT ON THIS
ARBITRARY GROUND" OF HIS REFUSAL ON FEDERAL CONSTITUTIONAL GROUNDS TO
ANSWER QUESTIONS OF THE SUBCOMMITTEE.  HAVING FOUND THAT ON THE RECORD
HERE THE DISCHARGE FOR "INSUBORDINATION" WAS NOT ARBITRARY, WE NEED GO
NO FURTHER. 

WE DO NOT PASS UPON PETITIONER'S CONTENTION AS TO THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT, SINCE IT WAS NEITHER
RAISED IN NOR CONSIDERED BY THE CALIFORNIA COURTS.  THE JUDGMENTS ARE
AFFIRMED. 

FN1  CALIFORNIA GOVERNMENT CODE, SEC. 1028.1: 

"IT SHALL BE THE DUTY OF ANY PUBLIC EMPLOYEE WHO MAY BE SUBPENAED OR
ORDERED BY THE GOVERNING BODY OF THE STATE OR LOCAL AGENCY BY WHICH
SUCH EMPLOYEE IS EMPLOYED, TO APPEAR BEFORE SUCH GOVERNING BODY, OR A
COMMITTEE OR SUBCOMMITTEE THEREOF, OR BY A DULY AUTHORIZED COMMITTEE OF
THE CONGRESS OF THE UNITED STATES OR OF THE LEGISLATURE OF THIS STATE,
OR ANY SUBCOMMITTEE OF ANY SUCH COMMITTEE, TO APPEAR BEFORE SUCH
COMMITTEE OR SUBCOMMITTEE, AND TO ANSWER UNDER OATH A QUESTION OR
QUESTIONS PROPOUNDED BY SUCH GOVERNING BODY, COMMITTEE OR SUBCOMMITTEE,
OR A MEMBER OR COUNSEL THEREOF, RELATING TO: 

"(A)  PRESENT PERSONAL ADVOCACY BY THE EMPLOYEE OF THE FORCEFUL OR
VIOLENT OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF ANY
STATE. 

"(B)  PRESENT KNOWING MEMBERSHIP IN ANY ORGANIZATION NOW ADVOCATING
THE FORCEFUL OR VIOLENT OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES OR OF ANY STATE. 

"(C)  PAST KNOWING MEMBERSHIP AT ANY TIME SINCE OCTOBER 3, 1945, IN
ANY ORGANIZATION WHICH, TO THE KNOWLEDGE OF SUCH EMPLOYEE, DURING THE
TIME OF THE EMPLOYEE'S MEMBERSHIP ADVOCATED THE FORCEFUL OR VIOLENT
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OR ANY STATE. 

"(D)  QUESTIONS AS TO PRESENT KNOWING MEMBERSHIP OF SUCH EMPLOYEE IN
THE COMMUNIST PARTY OR AS TO PAST KNOWING MEMBERSHIP IN THE COMMUNIST
PARTY AT ANY TIME SINCE OCTOBER 3, 1945. 

"(E)  PRESENT PERSONAL ADVOCACY BY THE EMPLOYEE OF THE SUPPORT OF A
FOREIGN GOVERNMENT AGAINST THE UNITED STATES IN THE EVENT OF
HOSTILITIES BETWEEN SAID FOREIGN GOVERNMENT AND THE UNITED STATES. 

"ANY EMPLOYEE WHO FAILS OR REFUSES TO APPEAR OR TO ANSWER UNDER OATH
ON ANY GROUND WHATSOEVER ANY SUCH QUESTIONS SO PROPOUNDED SHALL BE
GUILTY OF INSUBORDINATION AND GUILTY OF VIOLATING THIS SECTION AND
SHALL BE SUSPENDED AND DISMISSED FROM HIS EMPLOYMENT IN THE MANNER
PROVIDED BY LAW." 

FN2  THIS ORIGINAL ORDER WAS THE FORERUNNER OF SEC. 1028.1 OF THE
CALIFORNIA GOVERNMENT CODE, ENACTED IN 1953, WHICH WITH CERTAIN
REFINEMENTS EMBODIED THE REQUIREMENTS OF THE ORDER INTO STATE LAW.  IT
IS AGAINST THIS SECTION THAT PETITIONER LEVELS HIS CLAIMS OF
UNCONSTITUTIONALITY.  SEE NOTE 1, SUPRA. 

FN3  "19.07.  PROBATIONARY PERIOD FOLLOWING FIRST APPOINTMENT. 

"AN EMPLOYEE WHO HAS NOT YET COMPLETED HIS FIRST PROBATIONARY PERIOD
MAY BE DISCHARGED OR REDUCED IN ACCORDANCE WITH RULE 19.09 BY THE
APPOINTING POWER BY WRITTEN NOTICE, SERVED ON THE EMPLOYEE AND COPY
FILED WITH THE COMMISSION, SPECIFYING THE GROUNDS AND THE PARTICULAR
FACTS ON WHICH THE DISCHARGE OR REDUCTION IS BASED.  SUCH AN EMPLOYEE
SHALL BE ENTITLED TO ANSWER, EXPLAIN, OR DENY THE CHARGES IN WRITING
WITHIN TEN BUSINESS DAYS BUT SHALL NOT BE ENTITLED TO A HEARING, EXCEPT
IN CASE OF FRAUD OR OF DISCRIMINATION BECAUSE OF POLITICAL OR RELIGIOUS
OPINIONS, RACIAL EXTRACTION, OR ORGANIZED LABOR MEMBERSHIP." 
"19.09.  CONSENT OF COMMISSION. 

     *         *   *         *         * 

"NO CONSENT NEED BE SECURED TO THE DISCHARGE OR REDUCTION OF A
TEMPORARY OR RECURRENT EMPLOYEE." 

FN4  IT IS NOTEWORTHY THAT THE CALIFORNIA STATUTE REQUIRES SUCH
INFORMATION TO BE GIVEN BEFORE BOTH STATE AND FEDERAL BODIES. 

FN5  NOR DOES PETITIONER MAKE ANY ATTACK ON THE FAILURE OF
CALIFORNIA'S STATUTE TO AFFORD TEMPORARY EMPLOYEES SUCH AS HE AN
OPPORTUNITY TO EXPLAIN HIS FAILURE TO ANSWER QUESTIONS.  IT WILL BE
NOTED THAT PERMANENT EMPLOYEES ARE GRANTED SUCH A PRIVILEGE. 

MR. CHIEF JUSTICE WARREN TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

ANY CALIFORNIA PUBLIC EMPLOYEE WHO REFUSES TO INCRIMINATE HIMSELF WHEN
ASKED TO DO SO BY A CONGRESSIONAL COMMITTEE "SHALL BE SUSPENDED AND
DISMISSED FROM HIS EMPLOYMENT IN THE MANNER PROVIDED BY LAW."  THE
FIFTH AMENDMENT, WHICH IS A PART OF THE BILL OF RIGHTS, PROVIDES THAT
NO PERSON SHALL BE COMPELLED TO INCRIMINATE ("TO BE A WITNESS AGAINST")
HIMSELF.  THE PETITIONER, GLOBE, AN EMPLOYEE OF THE STATE OF
CALIFORNIA, APPEARED BEFORE THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE
OF THE UNITED STATES CONGRESS AND CLAIMED THIS FEDERAL CONSTITUTIONAL
PRIVILEGE.  CALIFORNIA PROMPTLY DISCHARGED HIM, AS THE COURT'S OPINION
SAYS, FOR "INSUBORDINATION AND VIOLATION OF SEC. 1028.1 OF THE CODE." 
THE "INSUBORDINATION AND VIOLATION" CONSISTED EXCLUSIVELY OF GLOBE'S
REFUSAL TO TESTIFY BEFORE THE CONGRESSIONAL COMMITTEE; A GROUND FOR HIS
REFUSAL WAS THAT HIS ANSWERS MIGHT INCRIMINATE HIM.  IT IS BEYOND DOUBT
THAT THE STATE TOOK GLOBE'S JOB AWAY FROM HIM ONLY BECAUSE HE CLAIMED
HIS PRIVILEGE UNDER THE FEDERAL CONSTITUTION. 

HERE, THEN, IS A PLAIN CONFLICT BETWEEN THE FEDERAL CONSTITUTION AND
SEC. 1028.1 OF THE CALIFORNIA CODE.  THE FEDERAL CONSTITUTION TOLD
GLOBE HE COULD, WITHOUT PENALTY, REFUSE TO INCRIMINATE HIMSELF BEFORE
ANY ARM OF THE FEDERAL GOVERNMENT; CALIFORNIA, HOWEVER, HAS DEPRIVED
HIM OF HIS JOB SOLELY BECAUSE HE EXERCISED THIS FEDERAL CONSTITUTIONAL
PRIVILEGE.  IN GIVING SUPREMACY TO THE CALIFORNIA LAW, I THINK THE
COURT APPROVES A PLAIN VIOLATION OF ARTICLE VI OF THE CONSTITUTION OF
THE UNITED STATES WHICH MAKES THAT CONSTITUTION "THE SUPREME LAW OF THE
LAND  ...  ANY THING IN THE CONSTITUTION OR LAWS OF ANY STATE TO THE
CONTRARY NOTWITHSTANDING."  I ALSO THINK THAT THIS DISCHARGE UNDER
STATE LAW IS A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT IN ITS AUTHENTIC HISTORICAL SENSE:  THAT A STATE MAY NOT
ENCROACH UPON THE INDIVIDUAL RIGHTS OF PEOPLE EXCEPT FOR VIOLATION OF A
LAW THAT IS VALID UNDER THE "LAW OF THE LAND."  "LAW OF THE LAND" OF
NECESSITY INCLUDES THE SUPREME LAW, THE CONSTITUTION ITSELF. 

THE BASIC PURPOSE OF THE BILL OF RIGHTS WAS TO PROTECT INDIVIDUAL
LIBERTY AGAINST GOVERNMENTAL PROCEDURES THAT THE FRAMERS THOUGHT SHOULD
NOT BE USED.  THAT GREAT PURPOSE CAN BE COMPLETELY FRUSTRATED BY
HOLDINGS LIKE THIS.  I WOULD HOLD THAT NO STATE CAN PUT ANY KIND OF
PENALTY ON ANY PERSON FOR CLAIMING A PRIVILEGE AUTHORIZED BY THE
FEDERAL CONSTITUTION.  THE COURT'S HOLDING TO THE CONTRARY HERE DOES
NOT BODE WELL FOR INDIVIDUAL LIBERTY IN AMERICA. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THIS IS ANOTHER IN THE SERIES OF CASES INVOLVING DISCHARGES OF STATE
AND LOCAL EMPLOYEES FROM THEIR POSITIONS AFTER THEY CLAIM THEIR
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION BEFORE
INVESTIGATING COMMITTEES.  SEE SLOCHOWER V. BOARD OF HIGHER EDUCATION,
350 U.S. 551; BEILAN V. BOARD OF PUBLIC EDUCATION, 357 U.S. 399; LERNER
V. CASEY, 357 U.S. 468.  WHILE I ADHERE ON THIS MATTER OF
CONSTITUTIONAL LAW TO THE VIEWS I EXPRESSED IN DISSENT IN THE LATTER
TWO CASES, 357 U.S., AT 417, IT IS ENOUGH TO SAY HERE THAT I BELIEVE
THIS CASE TO BE GOVERNED SQUARELY BY SLOCHOWER, AND ON THAT BASIS I PUT
MY DISSENT.  OF COURSE THIS OPINION IS LIMITED SOLELY TO GLOBE'S
DISCHARGE. 

CALIFORNIA HAS COMMANDED THAT ITS EMPLOYEES ANSWER CERTAIN BROAD
CATEGORIES OF QUESTIONS WHEN PROPOUNDED TO THEM BY INVESTIGATING
BODIES, INCLUDING FEDERAL BODIES SUCH AS THE SUBCOMMITTEE OF THE UN
AMERICAN ACTIVITIES COMMITTEE INVOLVED HERE.  CAL. GOVERNMENT CODE SEC.
1028.1.  INVOCATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION BEFORE
SUCH A BODY, IN RESPONSE TO QUESTIONS OF THOSE SORTS, IS MADE A BASIS
FOR DISCHARGE.  (FN1)  IN THE CASE OF A PERMANENT EMPLOYEE, IT IS HELD
THAT DISCHARGE MAY COME ONLY AFTER A HEARING AT WHICH THE EMPLOYEE IS
GIVEN, AT LEAST, AN OPPORTUNITY TO EXPLAIN HIS EXERCISE OF THE
PRIVILEGE.  BOARD OF EDUCATION V. MASS, 47 CAL. 2D 494, 304 P.2D 1015. 
BUT FOR A TEMPORARY OR PROBATIONARY EMPLOYEE LIKE GLOBE THE STATE LAW,
AS INTERPRETED AUTHORITATIVELY BY THE CALIFORNIA COURTS BELOW, REQUIRES
A DISCHARGE OF THE EMPLOYEE UPON HIS CLAIM OF THE PRIVILEGE, WITHOUT
FURTHER ADO.  163 CAL. APP. 2D, AT 605-606, 329 P.2D, AT 978. 
OPPORTUNITY FOR AN EXPLANATION BY THE EMPLOYEE OR FOR ADMINISTRATIVE
CONSIDERATION OF THE CIRCUMSTANCES OF THE CLAIM OF PRIVILEGE IS
FORECLOSED UNDER THE STATE LAW. 

IN SLOCHOWER, THIS COURT HAD A SUBSTANTIALLY IDENTICAL SITUATION
BEFORE IT.  THERE A LOCAL LAW WHICH MADE A CLAIM OF THE CONSTITUTIONAL
PRIVILEGE "EQUIVALENT TO A RESIGNATION" WAS STRUCK DOWN AS VIOLATIVE OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  ONLY ONE WORD IS
NECESSARY TO ADD HERE TO THE COURT'S STATEMENT THERE OF ITS REASON FOR
VOIDING THE PROVISION:  "AS INTERPRETED AND APPLIED BY THE STATE
COURTS, IT OPERATES TO DISCHARGE EVERY TEMPORARY  ...  EMPLOYEE WHO
INVOKES THE FIFTH AMENDMENT.  IN PRACTICAL EFFECT THE QUESTIONS ASKED
ARE TAKEN AS CONFESSED AND MADE THE BASIS OF THE DISCHARGE.  NO
CONSIDERATION IS GIVEN TO SUCH FACTORS AS THE SUBJECT MATTER OF THE
QUESTIONS, REMOTENESS OF THE PERIOD TO WHICH THEY ARE DIRECTED, OR
JUSTIFICATION FOR EXERCISE OF THE PRIVILEGE.  IT MATTERS NOT WHETHER
THE PLEA RESULTED FROM MISTAKEN, INADVERTENCE OR LEGAL ADVICE
CONSCIENTIOUSLY GIVEN, WHETHER WISELY OR UNWISELY.  THE HEAVY HAND OF
THE STATUTE FALLS ALIKE ON ALL WHO EXERCISE THEIR CONSTITUTIONAL
PRIVILEGE, THE FULL ENJOYMENT OF WHICH EVERY PERSON IS ENTITLED TO
RECEIVE."  350 U.S., AT 558.  THE COURT DISTINGUISHED INSTANCES IN
WHICH THE EMPLOYING GOVERNMENT ITSELF MIGHT BE CONDUCTING AN
INVESTIGATION INTO THE "FITNESS" OF THE EMPLOYEE. 

AS APPLIED, THEN, TO TEMPORARY OR PROBATIONARY EMPLOYEES, THE
CALIFORNIA STATUTE CONTAINS THE IDENTICAL VICE OF AUTOMATIC DISCHARGE
FOR A FIFTH AMENDMENT PLEA MADE BEFORE ANOTHER BODY, NOT CONCERNED WITH
INVESTIGATING THE "FITNESS" OF THE EMPLOYEE INVOLVED.  IT IS SOUGHT
HERE TO EQUATE GLOBE'S CASE WITH THOSE OF BEILAN AND LERNER.  BUT IN
THE LATTER CASES THE COURT TOOK THE VIEW THAT THE STATE DISCHARGES WERE
SUSTAINABLE BECAUSE THE EMPLOYEES' PLEAS OF SELF-INCRIMINATION BEFORE
LOCAL ADMINISTRATIVE AGENCY INVESTIGATIONS OF THEIR COMPETENCE AND
RELIABILITY PREVENTED THOSE EMPLOYING BODIES FROM HAVING AN ADEQUATE
RECORD ON WHICH TO REACH AN AFFIRMATIVE CONCLUSION AS TO THEIR
COMPETENCE AND RELIABILITY.  THIS FAILURE TO COOPERATE FULLY (STYLED
LACK OF CANDOR) WITHIN THE FRAMEWORK OF THE EMPLOYER'S OWN PROCEEDING
TO DETERMINE FITNESS, WAS SAID TO BE A CONSTITUTIONAL BASIS FOR
DISCHARGE.  357 U.S., AT 405-408; 357 U.S., AT 475-479; AND SEE 357
U.S., AT 410 (CONCURRING OPINION).  BUT HERE THERE WAS NOT THE VAGUEST
SEMBLANCE OF ANY LOCAL ADMINISTRATIVE PROCEDURE DESIGNED TO DETERMINE
THE FITNESS OF GLOBE FOR FURTHER EMPLOYMENT.  (FN2)  IT HAS NOT BEEN
HITHERTO SUGGESTED THAT THE AUTHORIZING RESOLUTIONS OF THE UN-AMERICAN
ACTIVITIES COMMITTEE EXTEND TO ENABLING IT TO PERFORM THESE FUNCTIONS
ON A GRANT-IN-AID BASIS TO THE STATES.  ACCORDINGLY THERE IS PRESENTED
HERE THE VERY SAME ARBITRARY ACTION - THE DRAWING OF AN INFERENCE OF
UNFITNESS FOR EMPLOYMENT FROM EXERCISE OF THE PRIVILEGE BEFORE ANOTHER
BODY, WITHOUT OPPORTUNITY TO EXPLAIN ON THE PART OF THE EMPLOYEE, OR
DUTY ON THE PART OF THE EMPLOYING BODY TO ATTEMPT TO RELATE THE
EMPLOYEE'S CONDUCT SPECIFICALLY TO HIS FITNESS FOR EMPLOYMENT - AS WAS
INVOLVED IN SLOCHOWER.  THERE IS THE SAME ANNOUNCED ABDICATION OF THE
LOCAL ADMINISTRATIVE BODY'S OWN FUNCTION OF DETERMINING THE FITNESS OF
ITS EMPLOYEES, IN FAVOR OF AN ARBITRARY AND PER SE RULE DEPENDENT ON
THE BEHAVIOR OF THE EMPLOYEE BEFORE ANOTHER BODY NOT CHARGED WITH
DETERMINING HIS FITNESS. 

IT IS SAID THAT THIS CASE DIFFERS FROM SLOCHOWER BECAUSE THAT CASE
INVOLVED A DETERMINATION, BASED ON HIS INVOCATION OF THE PRIVILEGE,
THAT THE EMPLOYEE WAS GUILTY OF SUBSTANTIVE MISCONDUCT, WHILE THIS ONE
SIMPLY INVOLVES A CASE OF "INSUBORDINATION" IN THE EMPLOYEE'S FAILURE
TO ANSWER QUESTIONS ASKED BY THE CONGRESSIONAL COMMITTEE WHICH THE
EMPLOYING AGENCY HAS ORDERED BY ANSWERED.  IN THE FIRST PLACE,
SLOCHOWER DID NOT INVOLVE ANY FINDING BY THE NEW YORK AUTHORITIES THAT
THE EMPLOYEE WAS GUILTY OF THE MATTERS AS TO WHICH HE CLAIMED THE
PRIVILEGE.  THE CLAIM OF THE PRIVILEGE WAS TREATED BY THE STATE AS
EQUIVALENT TO A RESIGNATION, 350 U.S., AT 554, AND IT WAS ONLY "IN
PRACTICAL EFFECT," ID., AT 558, THAT THE QUESTIONS ASKED WERE TAKEN AS
CONFESSED; (FN3) THAT IS, THE STATE CLAIMED THE POWER TO TAKE THE SAME
ACTION, DISCHARGE OF THE EMPLOYEE FROM EMPLOYMENT, UPON A PLEA OF THE
PRIVILEGE, AS IT COULD HAVE TAKEN UPON A CONFESSION OF THE MATTERS
CHARGED.  THE CASE INVOLVED AN INFERENCE OF UNFITNESS FOR OFFICE, THEN,
DRAWN ARBITRARILY AND WITHOUT OPPORTUNITY TO EXPLAIN, FROM THE
ASSERTION OF THE PRIVILEGE.  THE SAME IS INVOLVED HERE, AND THE THIN
PATINA OF "INSUBORDINATION" THAT THE STATUTE ENCRUSTS ON THE EXERCISE
OF THE PRIVILEGE DOES NOT CHANGE THE MATTER.  IF THE STATE LABELED AS
"INSUBORDINATION" AND MANDATORY GROUND FOR DISCHARGE EVERY FAILURE BY
AN EMPLOYEE TO RESPOND TO QUESTIONS ASKED HIM BY STRANGERS ON THE
STREET, ITS ACTION WOULD BE AS POINTLESS AS IT WAS ARBITRARY.  THE
POINT OF THE DIRECTION GIVEN TO ALL EMPLOYEES HERE TO ANSWER THE SORT
OF QUESTIONS COVERED BY THE STATUTE MUST HAVE BEEN THAT THE STATE
THOUGHT THAT THE MATTERS INVOLVED IN THE QUESTIONS BORE SOME GENERIC
RELATIONSHIP TO THE "FITNESS" OF THE EMPLOYEE TO HOLD HIS POSITION. 
BUT ON THIS BASIS THE CASE IS AGAIN INDISTINGUISHABLE FROM SLOCHOWER. 
IF IT IS UNCONSTITUTIONALLY ARBITRARY FOR THE STATE TO TREAT EVERY
INVOCATION OF THE PRIVILEGE AS CONCLUSIVE ON HIS FITNESS AND IN EFFECT
AS AN AUTOMATIC DISCHARGE, THEN THE COMMAND OF THE STATE THAT NO
TEMPORARY EMPLOYEE SHALL CLAIM THE PRIVILEGE UNDER PAIN OF AUTOMATIC
DISCHARGE MUST BE AN UNCONSTITUTIONALLY ARBITRARY COMMAND.  A STATE
COULD NOT, I SUPPOSE, DISCHARGE AN EMPLOYEE FOR ATTENDING RELIGIOUS
SERVICES ON SUNDAY, SEE WIEMAN V. UPDEGRAFF, 344 U.S. 183, 192; AND
EQUALLY SO IT COULD NOT ENFORCE, BY DISCHARGES FOR "INSUBORDINATION," A
GENERAL COMMAND TO ITS EMPLOYEES NOT TO ATTEND SUCH SERVICES. 

THE STATE COURT DISTINGUISHED THIS CASE FROM SLOCHOWER ON THE GROUNDS
THAT SLOCHOWER WAS A STATE EMPLOYEE WITH TENURE, BUT GLOBE WAS A
TEMPORARY OR PROBATIONARY EMPLOYEE NOT ENTITLED TO A HEARING ON
DISCHARGE.  ON THIS BASIS, IT CONCLUDED THAT THE REQUIREMENT OUTLINED
BY THIS COURT IN SLOCHOWER - THAT HE COULD NOT BE DISCHARGED IPSO FACTO
ON HIS CLAIM OF THE PRIVILEGE, BUT ONLY AFTER A MORE PARTICULARIZED
INQUIRY ADMINISTERED BY HIS EMPLOYER - DID NOT APPLY.  163 CAL. APP.
2D, AT 601-603, 329 P.2D, AT 975-976.  BUT THIS COURT HAS NOTHING TO DO
WITH THE CIVIL SERVICE SYSTEMS OF THE STATES, AS SUCH.  AND GLOBE DOES
NOT HERE CONTEND THAT HE COULD NOT HAVE BEEN DISCHARGED WITHOUT A
HEARING; BUT HE DOES ATTACK THE SPECIFIED BASIS OF HIS DISCHARGE. 
DOUBTLESS A PROBATIONARY EMPLOYEE CAN CONSTITUTIONALLY BE DISCHARGED
WITHOUT SPECIFICATION OF REASONS AT ALL; AND THIS COURT HAS NOT HELD
THAT IT WOULD OFFEND THE DUE PROCESS CLAUSE, WITHOUT MORE, FOR A STATE
TO PUT ITS ENTIRE CIVIL SERVICE ON SUCH A BASIS, IF AS A MATTER OF
INTERNAL POLITY IT COULD STAND TO DO SO. BUT IF A STATE DISCHARGED EVEN
A PROBATIONARY EMPLOYEE BECAUSE HE WAS A NEGRO OR A JEW, GIVING THAT
EXPLICIT REASON, ITS ACTION COULD NOT BE SQUARED WITH THE
CONSTITUTION.  SO WITH SLOCHOWER'S CASE; THIS COURT DID NOT REVERSE THE
JUDGMENT OF NEW YORK'S HIGHEST COURT BECAUSE IT HAD DISRESPECTED
SLOCHOWER'S STATE TENURE RIGHTS, BUT BECAUSE IT HAD SANCTIONED
ADMINISTRATIVE ACTION TAKEN EXPRESSLY ON AN UNCONSTITUTIONALLY
ARBITRARY BASIS.  SO HERE CALIFORNIA COULD HAVE SUMMARILY DISCHARGED
GLOBE, AND THAT WOULD HAVE BEEN AN END TO THE MATTER; WITHOUT MORE
APPEARING, ITS ACTION WOULD BE TAKEN TO REST ON A PERMISSIBLE JUDGMENT
BY HIS SUPERIORS AS TO HIS FITNESS.  BUT IF IT CHOOSES EXPRESSLY TO
BOTTOM HIS DISCHARGE ON A BASIS - LIKE THAT OF AN AUTOMATIC,
UNPARTICULARIZED REACTION TO A PLEA OF SELF-INCRIMINATION - WHICH
CANNOT BY ITSELF BE SUSTAINED CONSTITUTIONALLY, IT CANNOT ESCAPE ITS
CONSTITUTIONAL OBLIGATIONS ON THE GROUND THAT AS A GENERAL MATTER IT
COULD HAVE EFFECTED HIS DISCHARGE WITH A MINIMUM OF FORMALITY.  CF.
VITARELLI V. SEATON, 359 U.S. 535, 539. 

FOR THESE REASONS THE JUDGMENT AS TO GLOBE SHOULD BE REVERSED. 

FN1  THE COURT APPEARS TO TREAT THE FACT THAT THE CALIFORNIA STATUTE
IS NOT IN TERMS DIRECTED AT THE EXERCISE OF THE PRIVILEGE AGAINST SELF
INCRIMINATION, BUT RATHER COVERS ALL REFUSALS TO ANSWER, AS A FACTOR
MILITATING IN FAVOR OF ITS VALIDITY.  THE COURT SEEMS TO VIEW THE
PRIVILEGE AGAINST SELF-INCRIMINATION AS A SOMEWHAT STRANGE AND SINGULAR
BASIS ON WHICH TO DECLINE TO ANSWER QUESTIONS PUT IN AN INVESTIGATION;
OR AT MOST AS AN INDIVIDUAL PRIVATE SOLDIER IN A LARGE ARMY OF REASONS
THAT MIGHT COMMONLY BE GIVEN FOR DECLINING TO RESPOND.  I AM AFRAID I
MUST VIEW THE MATTER MORE REALISTICALLY.  BUT EVEN IF THE STATUTE WERE
TAKEN AS WHOLEHEARTEDLY AT FACE VALUE AS THE COURT DOES, THE
CONSEQUENCE WOULD NOT BE THAT IT WAS MORE REASONABLE, BUT RATHER THAT
IT WAS MORE ARBITRARY.  IT HARDLY AVOIDS THE RATIONALE OF THIS COURT'S
DECISION IN THE SLOCHOWER CASE IF THE STATE ADDS OTHER CONSTITUTIONAL
PRIVILEGES TO THE LIST, EXERCISE OF WHICH RESULTS PER SE IN DISCHARGE. 
SUCH A STATUTE WOULD BE EVEN THE MORE UNDIFFERENTIATING AND ARBITRARY
IN ITS BASIS FOR DISCHARGE THAN THE ONE INVOLVED IN SLOCHOWER.  AND OF
COURSE THE CROWNING EXTENT OF ARBITRARINESS IS EXPOSED BY THE
CONTENTION THAT THE FACT THAT DISCHARGE WOULD HAVE FOLLOWED A REFUSAL
TO ANSWER PREDICATED ON NO REASON AT ALL JUSTIFIES DISCHARGE UPON CLAIM
OF A CONSTITUTIONAL PRIVILEGE.  IT WOULD APPEAR OF THE ESSENCE OF
ARBITRARINESS FOR THE STATE TO LUMP TOGETHER REFUSALS TO ANSWER BASED
ON GOOD REASONS AND THOSE BASED ON NO REASON AT ALL, AND MAKE DISCHARGE
AUTOMATICALLY ENSUE ON ALL.  WHAT WAS STRUCK DOWN IN SLOCHOWER AS
UNCONSTITUTIONALLY ARBITRARY - UNDIFFERENTIATING TREATMENT MERELY AMONG
THOSE PLEADING THE SELF-INCRIMINATION PRIVILEGE - SEEMS ALMOST
REASONABLE BY COMPARISON. 

FN2  IN SLOCHOWER IT WAS SAID, "IT IS ONE THING FOR THE CITY
AUTHORITIES THEMSELVES TO INQUIRE INTO SLOCHOWER'S FITNESS, BUT QUITE
ANOTHER FOR HIS DISCHARGE TO BE BASED ENTIRELY ON EVENTS OCCURRING
BEFORE A FEDERAL COMMITTEE WHOSE INQUIRY WAS ANNOUNCED AS NOT DIRECTED
AT 'THE PROPERTY, AFFAIRS, OR GOVERNMENT OF THE CITY, OR  ...  OFFICIAL
CONDUCT OF CITY EMPLOYEES.'"  350 U.S., AT 558.  THIS DISTINCTION WAS
ASSERTED IN BEILAN AND LERNER.  357 U.S., AT 408; 357 U.S., AT 477. 

FN3 THE OPINION IN THE NEW YORK COURT OF APPEALS ALSO MAKES IT QUITE
CLEAR THAT SLOCHOWER WAS NOT BEING DISCHARGED AS GUILTY OF THE MATTERS
INQUIRED ABOUT.  DANIMAN V. BOARD OF EDUCATION, 306 N.Y. 532, 538, 119
N.E.2D 373, 377. 
..END :


















UNITED STATES V. RAINES 362 U.S. 17 


NO. 64.  ARGUED JANUARY 12, 1960 - DECIDED FEBRUARY 29, 1960 - 172 F.
SUPP. 552, REVERSED. 


UNDER AUTHORITY OF R.S. SEC. 2004, AS AMENDED BY THE CIVIL RIGHTS ACT
OF 1957, THE ATTORNEY GENERAL BROUGHT THIS CIVIL ACTION ON BEHALF OF
THE UNITED STATES IN A FEDERAL DISTRICT COURT TO ENJOIN CERTAIN PUBLIC
OFFICIALS OF THE STATE OF GEORGIA FROM DISCRIMINATING AGAINST NEGRO
CITIZENS WHO DESIRED TO REGISTER TO VOTE IN ELECTIONS IN GEORGIA.  THE
DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND THAT SUBSECTION
(C), WHICH AUTHORIZES THE ATTORNEY GENERAL TO BRING SUCH AN ACTION, IS
UNCONSTITUTIONAL.  ALTHOUGH THE COMPLAINT INVOLVED ONLY OFFICIAL
ACTIONS, THE COURT CONSTRUED SUBSECTION (C) AS AUTHORIZING SUITS TO
ENJOIN PURELY PRIVATE ACTIONS AND HELD THAT THIS WENT BEYOND THE
PERMISSIBLE SCOPE OF THE FIFTEENTH AMENDMENT AND THAT THE ACT MUST BE
CONSIDERED UNCONSTITUTIONAL IN ALL ITS APPLICATIONS.  ON DIRECT APPEAL
TO THIS COURT, HELD:  THE JUDGMENT IS REVERSED.  PP. 19-28. 

1.  THE CASE IS PROPERLY HERE ON DIRECT APPEAL UNDER 28 U.S.C. SEC.
1252, SINCE THE BASIS OF THE DECISION BELOW WAS THAT THE ACT OF
CONGRESS WAS UNCONSTITUTIONAL, NO MATTER WHAT THE CONTENTIONS OF THE
PARTIES MIGHT BE AS TO WHAT ITS PROPER BASIS SHOULD HAVE BEEN.  P. 20. 

2.  THE DISTRICT COURT ERRED IN DISMISSING THE COMPLAINT ON THE
THEORY THAT THE ACT WOULD EXCEED THE PERMISSIBLE LIMITS OF THE
FIFTEENTH AMENDMENT IF APPLIED TO PURELY PRIVATE ACTIONS BY PRIVATE
PERSONS, SINCE THAT QUESTION WAS NOT PROPERLY BEFORE THAT COURT ON THE
RECORD IN THIS CASE.  PP. 20-24. 

(A)  ONE TO WHOM APPLICATION OF A STATUTE IS CONSTITUTIONAL WILL NOT
BE HEARD TO ATTACK IT ON THE GROUND THAT IT MIGHT ALSO BE TAKEN AS
APPLYING TO OTHER PERSONS OR OTHER SITUATIONS IN WHICH ITS APPLICATION
MIGHT BE UNCONSTITUTIONAL.  P. 21. 

(B)  THE DELICATE POWER OF PRONOUNCING AN ACT OF CONGRESS
UNCONSTITUTIONAL IS NOT TO BE EXERCISED WITH REFERENCE TO HYPOTHETICAL
CASES.  P. 22. 

(C)  IN THIS CASE THERE ARE NO COUNTERVAILING CONSIDERATIONS
SUFFICIENT TO WARRANT THE DISTRICT COURT'S ACTION IN CONSIDERING THE
CONSTITUTIONALITY OF THIS ACT IN APPLICATIONS NOT PRESENTED BY THE
FACTS BEFORE IT.  PP. 22-24. 

(D)  TO THE EXTENT THAT UNITED STATES V. REESE, 92 U.S. 214, DEPENDED
ON AN APPROACH INCONSISTENT WITH WHAT THIS COURT CONSIDERS THE BETTER
ONE AND THE ONE ESTABLISHED BY THE WEIGHTIEST OF THE SUBSEQUENT CASES,
IT CANNOT BE FOLLOWED HERE.  P. 24. 

3.  INSOFAR AS IT AUTHORIZES THE ATTORNEY GENERAL TO BRING THIS
ACTION TO ENJOIN RACIAL DISCRIMINATION BY PUBLIC OFFICIALS IN THE
PERFORMANCE OF THEIR OFFICIAL DUTIES PERTAINING TO ELECTIONS, THE ACT
IS CLEARLY CONSTITUTIONAL.  PP. 24-28. 

(A)  WHATEVER PRECISELY MAY BE THE REACH OF THE FIFTEENTH AMENDMENT,
THE CONDUCT CHARGED HERE - DISCRIMINATION BY STATE OFFICIALS, WITHIN
THE COURSE OF THEIR OFFICIAL DUTIES, AGAINST THE VOTING RIGHTS OF
CITIZENS, ON GROUNDS OF RACE OR COLOR - IS CERTAINLY SUBJECT TO THE BAN
OF THAT AMENDMENT, AND LEGISLATION DESIGNED TO DEAL WITH SUCH
DISCRIMINATION IS "APPROPRIATE LEGISLATION" UNDER IT.  P. 25. 

(B)  IT CANNOT BE SAID THAT APPELLEES' ACTION WAS NOT "STATE ACTION"
MERELY BECAUSE THE AGGRIEVED PARTIES HAD NOT EXHAUSTED THEIR
ADMINISTRATIVE OR OTHER REMEDIES UNDER STATE LAW, SINCE CONGRESS HAS
POWER TO PRIVIDE FOR THE CORRECTION OF THE CONSTITUTIONAL VIOLATIONS OF
EVERY STATE OFFICIAL, HIGH AND LOW, WITHOUT REGARD TO THE PRESENCE OF
OTHER AUTHORITY IN THE STATE THAT MIGHT POSSIBLY REVISE THEIR ACTIONS. 
P. 25. 

(C)  INSOFAR AS BARNEY V. CITY OF NEW YORK, 193 U.S. 430, POINTS TO A
DIFFERENT CONCLUSION, ITS AUTHORITY HAS BEEN SO RESTRICTED BY LATER
DECISIONS THAT IT MIGHT BE REGARDED AS HAVING BEEN WORN AWAY BY THE
EROSION OF TIME AND OF CONTRARY AUTHORITY.  PP. 25-26. 

(D)  IT IS NOT BEYOND THE POWER OF CONGRESS TO AUTHORIZE THE UNITED
STATES TO BRING THIS ACTION TO VINDICATE THE PUBLIC INTEREST IN THE DUE
OBSERVANCE OF PRIVATE CONSTITUTIONAL RIGHTS.  P. 27. 

UNITED STATES V. RAINES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF GEORGIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT
COURT FOR THE MIDDLE DISTRICT OF GEORGIA AGAINST THE MEMBERS OF THE
BOARD OF REGISTRARS AND CERTAIN DEPUTY REGISTRARS OF TERRELL COUNTY,
GEORGIA.  ITS COMPLAINT CHARGED THAT THE DEFENDANTS HAD THROUGH VARIOUS
DEVICES, IN THE ADMINISTRATION OF THEIR OFFICES, DISCRIMINATED ON
RACIAL GROUNDS AGAINST NEGROES WHO DESIRED TO REGISTER TO VOTE IN
ELECTIONS CONDUCTED IN THE STATE.  THE COMPLAINT SOUGHT AN INJUNCTION
AGAINST THE CONTINUATION OF THESE DISCRIMINATORY PRACTICES, AND OTHER
RELIEF. 

THE ACTION WAS FOUNDED UPON R.S. SEC. 2004, AS AMENDED BY SEC. 131 OF
THE CIVIL RIGHTS ACT OF 1957, 71 STAT. 637, 42 U.S.C. SEC. 1971. 
SUBSECTIONS (A) AND (C), WHICH ARE DIRECTLY INVOLVED, PROVIDE:  (FN1) 

"(A)  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. 

     *         *         * *         * 

"(C)  WHENEVER ANY PERSON HAS ENGAGED OR THERE ARE REASONABLE GROUNDS
TO BELIEVE THAT ANY PERSON IS ABOUT TO ENGAGE IN ANY ACT OR PRACTICE
WHICH WOULD DEPRIVE ANY OTHER PERSON OF ANY RIGHT OR PRIVILEGE SECURED
BY SUBSECTION (A)  ...  , THE ATTORNEY GENERAL MAY INSTITUTE FOR THE
UNITED STATES, OR IN THE NAME OF THE UNITED STATES, A CIVIL ACTION OR
OTHER PROPER PROCEEDING FOR PREVENTIVE RELIEF, INCLUDING AN APPLICATION
FOR A PERMANENT OR TEMPORARY INJUNCTION, RESTRAINING ORDER, OR OTHER
ORDER  ...  ." 

ON THE DEFENDANTS' MOTION, THE DISTRICT COURT DISMISSED THE
COMPLAINT, HOLDING THAT SUBSECTION (C) WAS UNCONSTITUTIONAL.  172 F.
SUPP. 552.  THE COURT HELD THAT THE STATUTORY LANGUAGE QUOTED ALLOWED
THE UNITED STATES TO ENJOIN PURELY PRIVATE ACTION DESIGNED TO DEPRIVE
CITIZENS OF THE RIGHT TO VOTE ON ACCOUNT OF THEIR RACE OR COLOR. 
ALTHOUGH THE COMPLAINT IN QUESTION INVOLVED ONLY OFFICIAL ACTION, THE
COURT RULED THAT SINCE, IN ITS OPINION, THE STATUTE ON ITS FACE WAS
SUSCEPTIBLE OF APPLICATION BEYOND THE SCOPE PERMISSIBLE UNDER THE
FIFTEENTH AMENDMENT, IT WAS TO BE CONSIDERED UNCONSTITUTIONAL IN ALL
ITS APPLICATIONS.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT AND
WE POSTPONED THE QUESTION OF JURISDICTION TO THE HEARING OF THE CASE ON
THE MERITS.  360 U.S. 926.  UNDER THE TERMS OF 28 U.S.C. SEC. 1252, THE
CASE IS PROPERLY HERE ON APPEAL SINCE THE BASIS OF THE DECISION BELOW
IN FACT WAS THAT THE ACT OF CONGRESS WAS UNCONSTITUTIONAL, NO MATTER
WHAT THE CONTENTIONS OF THE PARTIES MIGHT BE AS TO WHAT ITS PROPER
BASIS SHOULD HAVE BEEN. 

THE VERY FOUNDATION OF THE POWER OF THE FEDERAL COURTS TO DECLARE
ACTS OF CONGRESS UNCONSTITUTIONAL LIES IN THE POWER AND DUTY OF THOSE
COURTS TO DECIDE CASES AND CONTROVERSIES PROPERLY BEFORE THEM.  THIS
WAS MADE PATENT IN THE FIRST CASE HERE EXERCISING THAT POWER - "THE
GRAVEST AND MOST DELICATE DUTY THAT THIS COURT IS CALLED ON TO
PERFORM."  (FN2)  MARBURY V. MADISON, 1 CRANCH 137, 177-180.  THIS
COURT, AS IS THE CASE WITH ALL FEDERAL COURTS, "HAS NO JURISDICTION TO
PRONOUNCE ANY STATUTE, EITHER OF A STATE OR OF THE UNITED STATES, VOID,
BECAUSE IRRECONCILABLE WITH THE CONSTITUTION, EXCEPT AS IT IS CALLED
UPON TO ADJUDGE THE LEGAL RIGHTS OF LITIGANTS IN ACTUAL CONTROVERSIES. 
IN THE EXERCISE OF THAT JURISDICTION, IT IS BOUND BY TWO RULES, TO
WHICH IT HAS RIGIDLY ADHERED, ONE, NEVER TO ANTICIPATE A QUESTION OF
CONSTITUTIONAL LAW IN ADVANCE OF THE NECESSITY OF DECIDING IT; THE
OTHER NEVER TO FORMULATE A RULE OF CONSTITUTIONAL LAW BROADER THAN IS
REQUIRED BY THE PRECISE FACTS TO WHICH IT IS TO BE APPLIED." 
LIVERPOOL, NEW YORK & PHILADELPHIA S.S. CO. V. COMMISSIONERS OF
EMIGRATION, 113 U.S. 33, 39.  KINDRED TO THESE RULES IS THE RULE THAT
ONE TO WHOM APPLICATION OF A STATUTE IS CONSTITUTIONAL WILL NOT BE
HEARD TO ATTACK THE STATUTE ON THE GROUND THAT IMPLIEDLY IT MIGHT ALSO
BE TAKEN AS APPLYING TO OTHER PERSONS OR OTHER SITUATIONS IN WHICH ITS
APPLICATION MIGHT BE UNCONSTITUTIONAL.  UNITED STATES V. WURZBACH, 280
U.S. 396; HEALD V. DISTRICT OF COLUMBIA, 259 U.S. 114, 123; YAZOO &
MISSISSIPPI VALLEY R. CO. V. JACKSON VINEGAR CO., 226 U.S. 217; COLLINS
V. TEXAS, 223 U.S. 288, 295-296; NEW YORK EX REL. HATCH V. REARDON, 204
U.S. 152, 160-161.  CF. VOELLER V. NEILSTON WAREHOUSE CO., 311 U.S.
531, 537; CARMICHAEL V. SOUTHERN COAL & COKE CO., 301 U.S. 495, 513;
VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 558; BLACKMER V.
UNITED STATES, 284 U.S. 421, 442; ROBERTS & SCHAEFER CO. V. EMMERSON,
271 U.S. 50, 54-55; JEFFREY MFG. CO. V. BLAGG, 235 U.S. 571, 576; TYLER
V. JUDGES OF THE COURT OF REGISTRATION, 179 U.S. 405; ASHWANDER V. TVA,
297 U.S. 288, 347-348 (CONCURRING OPINION).  IN BARROWS V. JACKSON, 346
U.S. 249, THIS COURT DEVELOPED VARIOUS REASONS FOR THIS RULE.  VERY
SIGNIFICANT IS THE INCONTROVERTIBLE PROPOSITION THAT 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."  ID., AT 256.  THE DELICATE POWER OF
PRONOUNCING AN ACT OF CONGRESS UNCONSTITUTIONAL IS NOT TO BE EXERCISED
WITH REFERENCE TO HYPOTHETICAL CASES THUS IMAGINED.  THE COURT FURTHER
POINTED TO THE FACT THAT A LIMITING CONSTRUCTION COULD BE GIVEN TO THE
STATUTE BY THE COURT RESPONSIBLE FOR ITS CONSTRUCTION IF AN APPLICATION
OF DOUBTFUL CONSTITUTIONALITY WERE IN FACT CONCRETELY PRESENTED.  WE
MIGHT ADD THAT APPLICATION OF THIS RULE FREES THE COURT NOT ONLY FROM
UNNECESSARY PRONOUNCEMENT ON CONSTITUTIONAL ISSUES, BUT ALSO FROM
PREMATURE INTERPRETATIONS OF STATUTES IN AREAS WHERE THEIR
CONSTITUTIONAL APPLICATION MIGHT BE CLOUDY. 

THE DISTRICT COURT RELIED ON, AND APPELLEES URGE HERE, CERTAIN CASES
WHICH ARE SAID TO BE INCONSISTENT WITH THIS RULE AND WITH ITS CLOSELY
RELATED COROLLARY THAT A LITIGANT MAY ONLY ASSERT HIS OWN
CONSTITUTIONAL RIGHTS OR IMMUNITIES.  IN MANY OF THEIR APPLICATIONS,
THESE ARE NOT PRINCIPLES ORDAINED BY THE CONSTITUTION, BUT CONSTITUTE
RATHER "RULES OF PRACTICE," BARROWS V. JACKSON, SUPRA, AT 257, ALBEIT
WEIGHTY ONES; HENCE SOME EXCEPTIONS TO THEM WHERE THERE ARE WEIGHTY
CONTERVAILING POLICIES HAVE BEEN AND ARE RECOGNIZED.  FOR EXAMPLE,
WHERE, AS A RESULT OF THE VERY LITIGATION IN QUESTION, THE
CONSTITUTIONAL RIGHTS OF ONE NOT A PARTY WOULD BE IMPAIRED, AND WHERE
HE HAS NO EFFECTIVE WAY TO PRESERVE THEM HIMSELF, THE COURT MAY
CONSIDER THOSE RIGHTS AS BEFORE IT. N.A.A.C.P. V. ALABAMA, 357 U.S.
449, 459-460; BARROWS V. JACKSON, SUPRA.  THIS COURT HAS INDICATED THAT
WHERE THE APPLICATION OF THESE RULES WOULD ITSELF HAVE AN INHIBITORY
EFFECT ON FREEDOM OF SPEECH, THEY MAY NOT BE APPLIED.  SEE SMITH V.
CALIFORNIA, 361 U.S. 147, 151; THORNHILL V. ALABAMA, 310 U.S. 88, 97
98.  PERHAPS CASES CAN BE PUT WHERE THEIR APPLICATION TO A CRIMINAL
STATUTE WOULD NECESSITATE SUCH A REVISION OF ITS TEXT AS TO CREATE A
SITUATION IN WHICH THE STATUTE NO LONGER GAVE AN INTELLIGIBLE WARNING
OF THE CONDUCT IT PROHIBITED.  SEE UNITED STATES V. REESE, 92 U.S. 214,
219-220; CF. WINTERS V. NEW YORK, 333 U.S. 507, 518-520.  AND THE
RULES' RATIONALE MAY DISAPPEAR WHERE THE STATUTE IN QUESTION HAS
ALREADY BEEN DECLARED UNCONSTITUTIONAL IN THE VAST MAJORITY OF ITS
INTENDED APPLICATIONS, AND IT CAN FAIRLY BE SAID THAT IT WAS NOT
INTENDED TO STAND AS VALID, ON THE BASIS OF FORTUITOUS CIRCUMSTANCES,
ONLY IN A FRACTION OF THE CASES IT WAS ORIGINALLY DESIGNED TO COVER. 
SEE BUTTS V. MERCHANTS & MINERS TRANSPORTATION CO., 230 U.S. 126.  THE
SAME SITUATION IS PRESENTED WHEN A STATE STATUTE COMES CONCLUSIVELY
PRONOUNCED BY A STATE COURT AS HAVING AN OTHERWISE VALID PROVISION OR
APPLICATION INEXTRICABLY TIED UP WITH AN INVALID ONE, SEE DORCHY V.
KANSAS, 264 U.S. 286, 290; (FN3) OR POSSIBLY IN THE RAREST OF CASES
WHERE THIS COURT CAN JUSTIFIABLY THINK ITSELF ABLE CONFIDENTLY TO
DISCERN THAT CONGRESS WOULD NOT HAVE DESIRED ITS LEGISLATION TO STAND
AT ALL UNLESS IT COULD VALIDLY STAND IN ITS EVERY APPLICATION.  CF. THE
TRADE-MARK CASES, 100 U.S. 82, 97-98; THE EMPLOYERS' LIABILITY CASES,
207 U.S. 463, 501.  BUT WE SEE NONE OF THE COUNTERVAILING
CONSIDERATIONS SUGGESTED BY THESE EXAMPLES, OR ANY OTHER COUNTERVAILING
CONSIDERATION, AS WARRANTING THE DISTRICT COURT'S ACTION HERE IN
CONSIDERING THE CONSTITUTIONALITY OF THE ACT IN APPLICATIONS NOT BEFORE
IT.  (FN4)  THIS CASE IS RATHER THE MOST TYPICAL ONE FOR APPLICATION OF
THE RULES WE HAVE DISCUSSED. 

THERE ARE, TO BE SURE, CASES WHERE THIS COURT HAS NOT APPLIED WITH
PERFECT CONSISTENCY THESE RULES FOR AVOIDING UNNECESSARY CONSTITUTIONAL
DETERMINATIONS, (FN5) AND WE DO NOT MEAN TO SAY THAT EVERY CASE WE HAVE
CITED FOR VARIOUS EXCEPTIONS TO THEIR APPLICATION WAS CONSIDERED TO
TURN ON THE EXCEPTION STATED, OR IS PERFECTLY JUSTIFIED BY IT.  THE
DISTRICT COURT RELIED PRIMARILY ON UNITED STATES V. REESE, SUPRA.  AS
WE HAVE INDICATED, THAT DECISION MAY HAVE DRAWN SUPPORT FROM THE
ASSUMPTION THAT IF THE COURT HAD NOT PASSED ON THE STATUTE'S VALIDITY
IN TOTO IT WOULD HAVE LEFT STANDING A CRIMINAL STATUTE INCAPABLE OF
GIVING FAIR WARNING OF ITS PROHIBITIONS.  BUT TO THE EXTENT REESE DID
DEPEND ON AN APPROACH INCONSISTENT WITH WHAT WE THINK THE BETTER ONE
AND THE ONE ESTABLISHED BY THE WEIGHTIEST OF THE SUBSEQUENT CASES, WE
CANNOT FOLLOW IT HERE. 

ACCORDINGLY, IF THE COMPLAINT HERE CALLED FOR AN APPLICATION OF THE
STATUTE CLEARLY CONSTITUTIONAL UNDER THE FIFTEENTH AMENDMENT, THAT
SHOULD HAVE BEEN AN END TO THE QUESTION OF CONSTITUTIONALITY.  AND AS
TO THE APPLICATION OF THE STATUTE CALLED FOR BY THE COMPLAINT, WHATEVER
PRECISELY MAY BE THE REACH OF THE FIFTEENTH AMENDMENT, IT IS ENOUGH TO
SAY THAT THE CONDUCT CHARGED - DISCRIMINATION BY STATE OFFICIALS,
WITHIN THE COURSE OF THEIR OFFICIAL DUTIES, AGAINST THE VOTING RIGHTS
OF UNITED STATES CITIZENS, ON GROUNDS OF RACE OR COLOR - IS CERTAINLY,
AS "STATE ACTION" AND THE CLEAREST FORM OF IT, SUBJECT TO THE BAN OF
THAT AMENDMENT, AND THAT LEGISLATION DESIGNED TO DEAL WITH SUCH
DISCRIMINATION IS "APPROPRIATE LEGISLATION" UNDER IT. IT MAKES NO
DIFFERENCE THAT THE DISCRIMINATION IN QUESTION, IF STATE ACTION, IS
ALSO VIOLATIVE OF STATE LAW.  SNOWDEN V. HUGHES, 321 U.S. 1, 11.  THE
APPELLEES CONTEND THAT SINCE CONGRESS HAS PROVIDED IN SUBSECTION (D) OF
THE STATUTORY PROVISION IN QUESTION HERE THAT THE DISTRICT COURTS SHALL
EXERCISE THEIR JURISDICTION "WITHOUT REGARD TO WHETHER THE PARTY
AGGRIEVED SHALL HAVE EXHAUSTED ANY ADMINISTRATIVE OR OTHER REMEDIES
THAT MAY BE PROVIDED BY LAW," AND SINCE SUCH REMEDIES WERE NOT
EXHAUSTED HERE, APPELLEES' ACTION CANNOT BE ASCRIBED TO THE STATE.  THE
ARGUMENT IS THAT THE ULTIMATE VOICE OF THE STATE HAS NOT SPOKEN, SINCE
HIGHER ECHELONS OF AUTHORITY IN THE STATE MIGHT REVISE THE APPELLEES'
ACTION.  IT IS, HOWEVER, ESTABLISHED AS A FUNDAMENTAL PROPOSITION THAT
EVERY STATE OFFICIAL, HIGH AND LOW, IS BOUND BY THE FOURTEENTH AND
FIFTEENTH AMENDMENTS.  SEE COOPER V. AARON, 358 U.S. 1, 16-19.  WE
THINK THIS COURT HAS ALREADY MADE IT CLEAR THAT IT FOLLOWS FROM THIS
THAT CONGRESS HAS THE POWER TO PROVIDE FOR THE CORRECTION OF THE
CONSTITUTIONAL VIOLATIONS OF EVERY SUCH OFFICIAL WITHOUT REGARD TO THE
PRESENCE OF OTHER AUTHORITY IN THE STATE THAT MIGHT POSSIBLY REVISE
THEIR ACTIONS.  THE APPELLEES CAN DRAW NO SUPPORT FROM THE EXPRESSIONS
IN BARNEY V. CITY OF NEW YORK, 193 U.S. 430, ON WHICH THEY SO MUCH
RELY.  (FN6)  THE AUTHORITY OF THOSE EXPRESSIONS HAS BEEN "SO
RESTRICTED BY OUR LATER DECISIONS," SEE SNOWDEN V. HUGHES, SUPRA, AT
13, THAT BARNEY MUST BE REGARDED AS HAVING "BEEN WORN AWAY BY THE
EROSION OF TIME," TIGNER V. TEXAS, 310 U.S. 141, 147, AND OF CONTRARY
AUTHORITY.  SEE RAYMOND V. CHICAGO UNION TRACTION CO., 207 U.S. 20, 37;
HOME TEL. & TEL. CO. V. LOS ANGELES, 227 U.S. 278, 283-289, 294; IOWA
DES MOINES NAT. BANK V. BENNETT, 284 U.S. 239, 247; SNOWDEN V. HUGHES,
SUPRA; SCREWS V. UNITED STATES, 325 U.S. 91, 107-113, 116.  CF. UNITED
STATES V. CLASSIC, 313 U.S. 299, 326.  IT WAS SAID OF BARNEY'S DOCTRINE
IN HOME TEL. & TEL. CO. V. LOS ANGELES, SUPRA, AT 284, BY MR. CHIEF
JUSTICE WHITE:  "ITS ENFORCEMENT  ...  WOULD  ...  RENDER IMPOSSIBLE
THE PERFORMANCE OF THE DUTY WITH WHICH THE FEDERAL COURTS ARE CHARGED
UNDER THE CONSTITUTION."  THE DISTRICT COURT SEEMS TO US TO HAVE
RECOGNIZED THAT THE COMPLAINT CLEARLY CHARGED A VIOLATION OF THE
FIFTEENTH AMENDMENT AND OF THE STATUTE, AND THAT THE STATUTE, IF
APPLICABLE ONLY TO THIS CLASS OF CASES, WOULD UNQUESTIONABLY BE VALID
LEGISLATION UNDER THAT AMENDMENT.  WE THINK THAT UNDER THE RULES WE
HAVE STATED, THAT COURT SHOULD THEN HAVE GONE NO FURTHER AND SHOULD
HAVE UPHELD THE ACT AS APPLIED IN THE PRESENT ACTION, AND THAT ITS
DISMISSAL OF THE COMPLAINT WAS ERROR.    THE APPELLEES URGE ALTERNATIVE
GROUNDS ON WHICH THEY SEEK TO SUPPORT THE JUDGMENT OF THE DISTRICT
COURT DISMISSING THE COMPLAINT.  (FN7)  WE DO NOT BELIEVE THESE GROUNDS
ARE WELL TAKEN.  IT IS URGED THAT IT IS BEYOND THE POWER OF CONGRESS TO
AUTHORIZE THE UNITED STATES TO BRING THIS ACTION IN SUPPORT OF PRIVATE
CONSTITUTIONAL RIGHTS.  BUT THERE IS THE HIGHEST PUBLIC INTEREST IN THE
DUE OBSERVANCE OF ALL THE CONSTITUTIONAL GUARANTEES, INCLUDING THOSE
THAT BEAR THE MOST DIRECTLY ON PRIVATE RIGHTS, AND WE THINK IT
PERFECTLY COMPETENT FOR CONGRESS TO AUTHORIZE THE UNITED STATES TO BE
THE GUARDIAN OF THAT PUBLIC INTEREST IN A SUIT FOR INJUNCTIVE RELIEF. 
SEE UNITED STEELWORKERS V. UNITED STATES, 361 U.S. 39, 43, AND CASES
CITED.  APPELLEES RAISE QUESTIONS AS TO THE SCOPE OF THE EQUITABLE
DISCRETION RESERVED TO THE COURTS IN SUITS UNDER SEC. 2004.  CF. ID.,
AT 41-42.  WE NEED NOT DEFINE THE SCOPE OF THE DISCRETION OF A DISTRICT
COURT IN PROCEEDINGS OF THIS NATURE, BECAUSE, EXERCISING A TRADITIONAL
EQUITY DISCRETION, THE COURT BELOW DECLINED TO DISMISS THE COMPLAINT ON
THAT GROUND, AND WE DO NOT DISCERN ANY BASIS IN THE PRESENT POSTURE OF
THE CASE FOR ANY CONTENTION THAT IT HAS ABUSED ITS DISCRETION. 
QUESTIONS AS TO THE RELIEF SOUGHT BY THE UNITED STATES ARE POSED, BUT
REMEDIAL ISSUES ARE HARDLY PROPERLY PRESENTED AT THIS STAGE IN THE
LITIGATION.  THE PARTIES HAVE ENGAGED IN MUCH DISCUSSION CONCERNING THE
ULTIMATE SCOPE IN WHICH CONGRESS INTENDED THIS LEGISLATION TO APPLY,
AND CONCERNING ITS CONSTITUTIONALITY UNDER THE FIFTEENTH AMENDMENT IN
THESE VARIOUS APPLICATIONS.  WE SHALL NOT COMPOUND THE ERROR WE HAVE
FOUND IN THE DISTRICT COURT'S JUDGMENT BY INTIMATING ANY VIEWS ON
EITHER MATTER.  REVERSED. 

FN1  SUBSECTION (A) WAS ORIGINALLY SEC. 1 OF THE ENFORCEMENT ACT OF
MAY 31, 1870, C. 114, 16 STAT. 140, AND WAS BROUGHT FORWARD AS R.S.
SEC. 2004.  THE REMAINING SUBSECTIONS WERE ADDED BY THE 1957
LEGISLATION.  SUBSECTION (B) FORBIDS VARIOUS FORMS OF INTIMIDATION AND
COERCION IN RESPECT OF VOTING FOR FEDERAL ELECTIVE OFFICERS, AND THE
ENFORCEMENT PROVISIONS OF SUBSECTION (C) LIKEWISE APPLY TO IT; BUT
SUBSECTION (B) IS NOT INVOLVED IN THIS LITIGATION. 

FN2  HOLMES, J., IN BLODGETT V. HOLDEN, 275 U.S. 142, 148. 

FN3  CF. MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S. 219, 234.  BUT A
STATE'S DETERMINATION OF THE CLASS OF PERSONS WHO CAN INVOKE THE
PROTECTION OF PROVISIONS OF THE FEDERAL CONSTITUTION HAS BEEN HELD NOT
CONCLUSIVE HERE.  TILESTON V. ULLMAN, 318 U.S. 44. 

FN4  CERTAINLY IT CANNOT BE SAID THAT THE SORT OF ACTION PROCEEDED
AGAINST HERE, AND VALIDLY REACHABLE UNDER THE CONSTITUTION (SEE PP. 25
26, INFRA), WAS SO SMALL AND INESSENTIAL A PART OF THE EVIL CONGRESS
WAS CONCERNED ABOUT IN THE STATUTE THAT THESE DEFENDANTS SHOULD BE
PERMITTED TO MAKE AN ATTACK ON THE STATUTE GENERALLY.  SUBSECTION (D)
AND INNUMERABLE ITEMS IN THE LEGISLATIVE HISTORY SHOW CONGRESS'
PARTICULAR CONCERN WITH THE SORT OF ACTION CHARGED HERE.  SEE, E.G.,
HEARINGS BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE
COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE, ON PROPOSALS TO
SECURE, PROTECT, AND STRENGTHEN CIVIL RIGHTS OF PERSONS UNDER THE
CONSTITUTION AND LAWS OF THE UNITED STATES, 85TH CONG., 1ST SESS., PP.
4-7, 36-37, 77, 81, 189, 205, 293, 300; HEARINGS BEFORE SUBCOMMITTEE
NO. 5 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, ON
MISCELLANEOUS BILLS REGARDING THE CIVIL RIGHTS OF PERSONS WITHIN THE
JURISDICTION OF THE UNITED STATES, 85TH CONG., 1ST SESS., PP. 656,
1220; 103 CONG. REC. 8705, 12149, 12898, 13126, 13732. 

NOR CAN THERE BE ANY SERIOUS CONTENTION THAT THE STATUTE, AS A CIVIL
ENACTMENT, WOULD FAIL TO GIVE ADEQUATE NOTICE OF THE CONDUCT IT VALIDLY
PROSCRIBED, EVEN IF CERTAIN APPLICATIONS OF IT WERE TO BE DEEMED
UNCONSTITUTIONAL.  CRIMINAL PROCEEDINGS UNDER THE STATUTE MUST DEPEND
ON VIOLATION OF A RESTRAINING ORDER EMBRACING THE PARTY CHARGED. 

FN5  CF., E.G., ILLINOIS CENTRAL R. CO. V. MCKENDREE, 203 U.S. 514;
UNITED STATES V. JU TOY, 198 U.S. 253, 262-263. 

FN6  BARNEY WAS A PROPERTY OWNER'S ACTION TO ENJOIN STATE OFFICIALS
FROM CONSTRUCTION OF A RAPID TRANSIT TUNNEL IN A PARTICULAR PLACE.  THE
SUIT WAS BROUGHT DIRECTLY UNDER THE FOURTEENTH AMENDMENT IN FEDERAL
COURT, AND IT WAS AVERRED THAT THE PROPOSED ACTION OF THE STATE
OFFICIALS WAS NOT AUTHORIZED UNDER STATE LAW.  IT DOES NOT APPEAR THAT
THE COMPLAINANT ALLEGED THAT HIGHER STATE ADMINISTRATIVE ECHELONS WERE
INDISPOSED TO HALT THE UNAUTHORIZED ACTIONS OR THAT THE STATE OFFERED
NO REMEDY AT ALL TO A PROPERTY OWNER THREATENED WITH INTERFERENCE WITH
HIS PROPERTY BY STATE OFFICIALS ACTING WITHOUT AUTHORITY.  THERE WAS
NOT PRESENTED ANY SPECIFIC FEDERAL STATUTE EXPRESSLY AUTHORIZING
FEDERAL JUDICIAL INTERVENTION WITH MATTERS IN THIS POSTURE. 

FN7  MANY OF THESE CONTENTIONS ARE RAISED BY WHAT APPELLEES STYLE A
"CROSS-APPEAL."  NOTICE OF CROSS-APPEAL WAS FILED IN THE DISTRICT
COURT, BUT THE CROSS-APPEAL WAS NOT DOCKETED HERE.  HOWEVER, SINCE THE
JUDGMENT OF THE DISTRICT COURT AWARDED APPELLEES ALL THE RELIEF THEY
REQUESTED (DESPITE REJECTING MOST OF THEIR CONTENTIONS, EXCEPT THE
CENTRAL ONE), NO CROSS-APPEAL WAS NECESSARY TO BRING THESE CONTENTIONS
BEFORE US IF THEY CAN BE CONSIDERED OTHERWISE.  THEY WOULD SIMPLY BE
ALTERNATIVE GROUNDS ON WHICH THE JUDGMENT BELOW COULD BE SUPPORTED.  IN
VIEW OF THE BROAD NATURE OF SEC. 1252, WHICH SEEMS TO INDICATE A DESIRE
OF CONGRESS THAT THE WHOLE CASE COME UP (CONTRAST 18 U.S.C. SEC. 3731,
UNITED STATES V. BORDEN CO., 308 U.S. 188, 193), WE HAVE THE POWER TO
PASS ON THESE OTHER QUESTIONS, AND SINCE THE DISTRICT COURT EXPRESSED
ITS VIEWS ON MOST OF THEM, WE ALSO DEEM IT APPROPRIATE TO DO SO. 

MR.JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE HARLAN CONCURS, JOINING
IN THE JUDGMENT. 

THE WEIGHTY PRESUMPTIVE VALIDITY WITH WHICH THE CIVIL RIGHTS ACT OF
1957, LIKE EVERY ENACTMENT OF CONGRESS, COMES HERE IS NOT OVERBORNE BY
ANY CLAIM URGED AGAINST IT.  TO DEAL WITH LEGISLATION SO AS TO FIND
UNCONSTITUTIONALITY IS TO REVERSE THE DUTY OF COURTS TO APPLY A STATUTE
SO AS TO SAVE IT. HERE THIS MEASURE IS SUSTAINED UNDER FAMILIAR
PRINCIPLES OF CONSTITUTIONAL LAW.  NOR IS THERE ANY PROCEDURAL HURDLE
LEFT TO BE CLEARED TO SUSTAIN THE SUIT OF THE UNITED STATES.  WHATEVER
MAY HAVE BEEN THE ORIGINAL FORCE OF BARNEY V. NEW YORK, 193 U.S. 430,
THAT DECISION HAS LONG CEASED TO BE AN OBSTRUCTION, NOR IS ANY OTHER
DECISION IN THE WAY OF OUR RESULT IN THIS CASE.  AND SO I FIND IT
NEEDLESS TO CANVASS THE MULTITUDE OF OPINIONS THAT MAY GENERALLY TOUCH
ON, BUT DO NOT GOVERN, THE ISSUES NOW BEFORE US.
..END :







UNITED STATES V. PARKE, DAVIS & CO. 362 U.S. 29 


NO. 20.  ARGUED NOVEMBER 10, 1959 - DECIDED FEBRUARY 29, 1960 - 164 F.
SUPP. 827, REVERSED. 


IN A CIVIL SUIT UNDER SEC. 4 OF THE SHERMAN ACT CHARGING APPELLEE WITH
COMBINING AND CONSPIRING TO MAINTAIN RESALE PRICES OF ITS PRODUCTS IN
AREAS WHICH HAVE NO "FAIR TRADE" LAWS, THE GOVERNMENT INTRODUCED
EVIDENCE SHOWING THAT APPELLEE HAD (1) ANNOUNCED A POLICY OF REFUSING
TO DEAL WITH RETAILERS WHO FAILED TO OBSERVE APPELLEE'S SUGGESTED
MINIMUM RESALE PRICES OR WHO ADVERTISED DISCOUNT PRICES ON APPELLEE'S
PRODUCTS, (2) DISCONTINUED DIRECT SALES TO THOSE RETAILERS WHO FAILED
TO ABIDE BY THE ANNOUNCED POLICY, (3) INDUCED WHOLESALE DISTRIBUTORS TO
STOP SELLING APPELLEE'S PRODUCTS TO THE OFFENDING RETAILERS, (4)
SECURED UNANIMOUS ADHERENCE BY INFORMING A NUMBER OF THE RETAILERS THAT
IF EACH OF THEM WOULD ADHERE TO THE ANNOUNCED POLICY ONE OF THEIR
PRINCIPAL COMPETITORS WOULD ALSO DO SO, AND (5) PERMITTED THE RETAILERS
TO RESUME PURCHASING ITS PRODUCTS AFTER THEY HAD INDICATED WILLINGNESS
TO OBSERVE THE POLICY.  THE EVIDENCE FURTHER ESTABLISHED THAT APPELLEE
HAD TERMINATED THESE PRACTICES AFTER BECOMING AWARE THAT THE DEPARTMENT
OF JUSTICE HAD BEGUN AN INVESTIGATION OF ITS PRICE MAINTENANCE
ACTIVITIES.  THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND
THAT THE GOVERNMENT HAD NOT SHOWN A RIGHT TO RELIEF.  HELD:  THE
JUDGMENT IS REVERSED AND THE CASE REMANDED WITH DIRECTIONS TO ENTER AN
APPROPRIATE JUDGMENT ENJOINING APPELLEE FROM FURTHER VIOLATIONS OF THE
SHERMAN ACT, UNLESS IT ELECTS TO SUBMIT EVIDENCE IN DEFENSE AND REFUTES
THE GOVERNMENT'S RIGHT TO INJUNCTIVE RELIEF ESTABLISHED BY THE PRESENT
RECORD.  PP. 30-49. 

(A)  THE DISTRICT COURT ERRED IN HOLDING THAT THESE PRACTICES
CONSTITUTED ONLY UNILATERAL ACTION BY APPELLEE IN SELECTING ITS
CUSTOMERS, AS PERMITTED BY UNITED STATES V. COLGATE & CO., 250 U.S.
300.  APPELLEE DID NOT MERELY ANNOUNCE ITS POLICY AND THEN DECLINE TO
HAVE FURTHER DEALINGS WITH RETAILERS WHO FAILED TO ABIDE BY IT, BUT, BY
UTILIZING WHOLESALERS AND OTHER RETAILERS, IT ACTIVELY INDUCED
UNWILLING RETAILERS TO COMPLY WITH THE POLICY.  THE RESULTING CONCERTED
ACTION TO MAINTAIN THE RESALE PRICES CONSTITUTED A CONSPIRACY OR
COMBINATION IN VIOLATION OF THE SHERMAN ACT, ALTHOUGH IT WAS NOT BASED
ON ANY CONTRACT, EXPRESS OR IMPLIED.  PP. 36-47. 

(B)  RULE 52 OF THE FEDERAL RULES OF CIVIL PROCEDURE DOES NOT REQUIRE
AFFIRMANCE OF THE DISTRICT COURT'S ULTIMATE FINDING THAT RESPONDENT DID
NOT VIOLATE THE SHERMAN ACT, BECAUSE THAT CONCLUSION WAS BASED ON AN
ERRONEOUS INTERPRETATION OF THE LAW.  PP. 43-45. 

(C)  THE DISTRICT COURT'S ALTERNATIVE HOLDING THAT DISMISSAL OF THE
COMPLAINT WAS WARRANTED BECAUSE THERE WAS NO REASONABLE PROBABILITY
THAT APPELLEE WOULD RESUME ITS ATTEMPTS TO MAINTAIN RESALE PRICES IS
ERRONEOUS, BECAUSE IT IS NOT SUPPORTED BY THE EVIDENCE.  PP. 47-48. 

UNITED STATES V. PARKE, DAVIS & CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE GOVERNMENT SOUGHT AN INJUNCTION UNDER SEC. 4 OF THE SHERMAN ACT
AGAINST THE APPELLEE, PARKE, DAVIS & COMPANY, ON A COMPLAINT ALLEGING
THAT PARKE DAVIS CONSPIRED AND COMBINED, IN VIOLATION OF SECS. 1 AND 3
OF THE ACT, (FN1) WITH RETAIL AND WHOLESALE DRUGGISTS IN WASHINGTON,
D.C., AND RICHMOND, VIRGINIA, TO MAINTAIN THE WHOLESALE AND RETAIL
PRICES OF PARKE DAVIS PHARMACEUTICAL PRODUCTS.  THE VIOLATION WAS
ALLEGED TO HAVE OCCURRED DURING THE SUMMER OF 1956 WHEN THERE WAS NO
FAIR TRADE LAW IN THE DISTRICT OF COLUMBIA OR THE STATE OF VIRGINIA. 
(FN2)  AFTER THE GOVERNMENT COMPLETED THE PRESENTATION OF ITS EVIDENCE
AT THE TRIAL, AND WITHOUT HEARING PARKE DAVIS IN DEFENSE, THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA DISMISSED THE COMPLAINT UNDER RULE
41(B) ON THE GROUND THAT UPON THE FACTS AND THE LAW THE GOVERNMENT HAD
NOT SHOWN A RIGHT TO RELIEF.  164 F. SUPP. 827.  WE NOTED PROBABLE
JURISDICTION OF THE GOVERNMENT'S DIRECT APPEAL UNDER SEC. 2 OF THE
EXPEDITING ACT.  (FN3)  359 U.S. 903. 

PARKE DAVIS MAKES SOME 600 PHARMACEUTICAL PRODUCTS WHICH IT MARKETS
NATIONALLY THROUGH DRUG WHOLESALERS AND DRUG RETAILERS.  THE RETAILERS
BUY THESE PRODUCTS FROM THE DRUG WHOLESALERS OR MAKE LARGE QUANTITY
PURCHASES DIRECTLY FROM PARKE DAVIS.  SOMETIME BEFORE 1956 PARKE DAVIS
ANNOUNCED A RESALE PRICE MAINTENANCE POLICY IN ITS WHOLESALERS' AND
RETAILERS' CATALOGUES.  THE WHOLESALERS' CATALOGUE CONTAINED A NET
PRICE SELLING SCHEDULE LISTING SUGGESTED MINIMUM RESALE PRICES ON PARKE
DAVIS PRODUCTS SOLD BY WHOLESALERS TO RETAILERS.  THE CATALOGUE STATED
THAT IT WAS PARKE DAVIS' CONTINUING POLICY TO DEAL ONLY WITH DRUG
WHOLESALERS WHO OBSERVED THAT SCHEDULE AND WHO SOLD ONLY TO DRUG
RETAILERS AUTHORIZED BY LAW TO FILL PRESCRIPTIONS.  PARKE DAVIS, WHEN
SELLING DIRECTLY TO RETAILERS, QUOTED THE SAME PRICES LISTED IN THE
WHOLESALERS' NET PRICE SELLING SCHEDULE BUT GRANTED RETAILERS DISCOUNTS
FOR VOLUME PURCHASES.  WHOLESALERS WERE NOT AUTHORIZED TO GRANT SIMILAR
DISCOUNTS.  THE RETAILERS' CATALOGUE CONTAINED A SCHEDULE OF MINIMUM
RETAIL PRICES APPLICABLE IN STATES WITH FAIR TRADE LAWS AND STATED THAT
THIS SCHEDULE WAS SUGGESTED FOR USE ALSO IN STATES NOT HAVING SUCH
LAWS.  THESE SUGGESTED MINIMUM RETAIL PRICES USUALLY PROVIDED A 50%
MARKUP OVER COST ON PARKE DAVIS PRODUCTS PURCHASED BY RETAILERS FROM
WHOLESALERS BUT, BECAUSE OF THE VOLUME DISCOUNT, OFTEN IN EXCESS OF
100% MARKUP OVER COST ON PRODUCTS PURCHASED IN LARGE QUANTITIES
DIRECTLY FROM PARKE DAVIS. 

THERE ARE SOME 260 DRUGSTORES IN WASHINGTON, D.C., AND SOME 100 IN
RICHMOND, VIRGINIA.  MANY OF THE STORES ARE UNITS OF PEOPLES DRUG
STORES, A LARGE RETAIL DRUG CHAIN.  THERE ARE FIVE DRUG WHOLESALERS
HANDLING PARKE DAVIS PRODUCTS IN THE LOCALITY WHO DO BUSINESS WITH THE
DRUG RETAILERS.  THE WHOLESALERS OBSERVED THE RESALE PRICES SUGGESTED
BY PARKE DAVIS.  HOWEVER, DURING THE SPRING AND EARLY SUMMER OF 1956
DRUG RETAILERS IN THE TWO CITIES ADVERTISED AND SOLD SEVERAL PARKE
DAVIS VITAMIN PRODUCTS AT PRICES SUBSTANTIALLY BELOW THE SUGGESTED
MINIMUM RETAIL PRICES; IN SOME INSTANCES THE PRICES APPARENTLY
REFLECTED THE VOLUME DISCOUNTS ON DIRECT PURCHASES FROM PARKE DAVIS
SINCE THE PRODUCTS WERE SOLD BELOW THE PRICES LISTED IN THE
WHOLESALERS' NET PRICE SELLING SCHEDULE.   THE BALTIMORE OFFICE MANAGER
OF PARKE DAVIS IN CHARGE OF THE SALES DISTRICT WHICH INCLUDED THE TWO
CITIES SOUGHT ADVICE FROM HIS HEAD OFFICE ON HOW TO HANDLE THIS
SITUATION.  THE PARKE DAVIS ATTORNEY ADVISED THAT THE COMPANY COULD
LEGALLY "ENFORCE AN ADOPTED POLICY ARRIVED AT UNILATERALLY" TO SELL
ONLY TO CUSTOMERS WHO OBSERVED THE SUGGESTED MINIMUM RESALE PRICES.  HE
FURTHER ADVISED THAT THIS MEANT THAT "WE CAN LAWFULLY SAY 'WE WILL SELL
YOU ONLY SO LONG AS YOU OBSERVE SUCH MINIMUM RETAIL PRICES' BUT CANNOT
SAY 'WE WILL SELL YOU ONLY IF YOU AGREE TO OBSERVE SUCH MINIMUM RETAIL
PRICES,' SINCE EXCEPT AS PERMITTED BY FAIR TRADE LEGISLATIONS
AGREEMENTS AS TO RESALE PRICE MAINTENANCE ARE INVALID."  THEREAFTER IN
JULY THE BRANCH MANAGER PUT INTO EFFECT A PROGRAM FOR PROMOTING
OBSERVANCE OF THE SUGGESTED MINIMUM RETAIL PRICES BY THE RETAILERS
INVOLVED.  THE PROGRAM CONTEMPLATED THE PARTICIPATION OF THE FIVE DRUG
WHOLESALERS.  IN ORDER TO INSURE THAT RETAILERS WHO DID NOT COMPLY
WOULD BE CUT OFF FROM SOURCES OF SUPPLY, REPRESENTATIVES OF PARKE DAVIS
VISITED THE WHOLESALERS AND TOLD THEM, IN EFFECT, THAT NOT ONLY WOULD
PARKE DAVIS REFUSE TO SELL TO WHOLESALERS WHO DID NOT ADHERE TO THE
POLICY ANNOUNCED IN ITS CATALOGUE, BUT ALSO THAT IT WOULD REFUSE TO
SELL TO WHOLESALERS WHO SOLD PARKE DAVIS PRODUCTS TO RETAILERS WHO DID
NOT OBSERVE THE SUGGESTED MINIMUM RETAIL PRICES.  EACH WHOLESALER WAS
INTERVIEWED INDIVIDUALLY BUT EACH WAS INFORMED THAT HIS COMPETITORS
WERE ALSO BEING APPRISED OF THIS.  THE WHOLESALERS WITHOUT EXCEPTION
INDICATED A WILLINGNESS TO GO ALONG. 

REPRESENTATIVES CALLED CONTEMPORANEOUSLY UPON THE RETAILERS INVOLVED,
INDIVIDUALLY, AND TOLD EACH THAT IF HE DID NOT OBSERVE THE SUGGESTED
MINIMUM RETAIL PRICES, PARKE DAVIS WOULD REFUSE TO DEAL WITH HIM, AND
THAT FURTHERMORE HE WOULD BE UNABLE TO PURCHASE ANY PARKE DAVIS
PRODUCTS FROM THE WHOLESALERS.  EACH OF THE RETAILERS WAS ALSO TOLD
THAT HIS COMPETITORS WERE BEING SIMILARLY INFORMED. 

SEVERAL RETAILERS REFUSED TO GIVE ANY ASSURANCES OF COMPLIANCE AND
CONTINUED AFTER THESE JULY INTERVIEWS TO ADVERTISE AND SELL PARKE DAVIS
PRODUCTS AT PRICES BELOW THE SUGGESTED MINIMUM RETAIL PRICES.  THEIR
NAMES WERE FURNISHED BY PARKE DAVIS TO THE WHOLESALERS.  THEREAFTER
PARKE DAVIS REFUSED TO FILL DIRECT ORDERS FROM SUCH RETAILERS AND THE
WHOLESALERS LIKEWISE REFUSED TO FILL THEIR ORDERS.  (FN4)  THIS BAN WAS
NOT LIMITED TO THE PARKE DAVIS PRODUCTS BEING SOLD BELOW THE SUGGESTED
MINIMUM PRICES BUT INCLUDED ALL THE COMPANY'S PRODUCTS, EVEN THOSE
NECESSARY TO FILL PRESCRIPTIONS. 

THE PRESIDENT OF DART DRUG COMPANY, ONE OF THE RETAILERS CUT OFF,
PROTESTED TO THE ASSISTANT BRANCH MANAGER OF PARKE DAVIS THAT PARKE
DAVIS WAS DISCRIMINATING AGAINST HIM BECAUSE A DRUGSTORE ACROSS THE
STREET, ONE OF THE PEOPLES DRUG CHAIN, HAD A SIGN IN ITS WINDOW
ADVERTISING PARKE DAVIS PRODUCTS AT CUT PRICES.  THE RETAILER WAS TOLD
THAT IF THIS WERE SO THE BRANCH MANAGER "WOULD SEE PEOPLES AND TRY TO
GET THEM IN LINE."  THE BRANCH MANAGER TESTIFIED AT THE TRIAL THAT
THEREAFTER HE TALKED TO A VICE-PRESIDENT OF PEOPLES AND THAT THE
FOLLOWING OCCURRED: 

"Q.  WELL, NOW, YOU TOLD MR. DOWNEY (THE VICE-PRESIDENT OF PEOPLES)
AT THIS MEETING, DID YOU NOT, MR. POWERS, (THE ASSISTANT BRANCH MANAGER
OF PARKE DAVIS) THAT YOU NOTICED THAT PEOPLES WERE CUTTING PRICES? 

"A.  YES. 

"Q.  AND YOU TOLD HIM, DID YOU NOT, THAT IT HAD BEEN THE PARKE, DAVIS
POLICY FOR MANY YEARS TO DO BUSINESS ONLY WITH INDIVIDUALS THAT
MAINTAINED THE SCHEDULED PRICES? 

"A.  I TOLD MR. DOWNEY THAT WE HAD A POLICY IN OUR CATALOG, AND THAT
ANYONE THAT DID NOT GO ALONG WITH OUR POLICY, WE WERE NOT INTERESTED IN
DOING BUSINESS WITH THEM. 

     *         *         *    *         * 

"Q.  ...  NOW, MR. DOWNEY TOLD YOU ON THE OCCASION OF THIS VISIT, DID
HE NOT, THAT PEOPLES WOULD STOP CUTTING PRICES AND WOULD ABIDE BY THE
PARKE-DAVIS POLICY, IS THAT RIGHT? 

"A.  THAT IS CORRECT. 

     *         *         *         *         * 

"Q.  WHEN YOU SENT TO CALL ON MR. DOWNEY, YOU SOLICITED HIS SUPPORT
OF PARKE, DAVIS POLICIES, IS NOT THAT RIGHT? 

"A.  THAT IS RIGHT. 

"Q.  AND HE SAID, I WILL ABIDE BY YOUR POLICY? 

"A.  THAT IS RIGHT." 

THE DISTRICT COURT FOUND, APPARENTLY ON THE BASIS OF THIS TESTIMONY,
THAT "THE PEOPLES' REPRESENTATIVE STATED THAT PEOPLES WOULD STOP
CUTTING PRICES ON PARKE, DAVIS' PRODUCTS AND PARKE, DAVIS CONTINUED TO
SELL TO PEOPLES." 

BUT FIVE RETAILERS CONTINUED SELLING PARKE DAVIS PRODUCTS AT LESS
THAN THE SUGGESTED MINIMUM PRICES FROM STOCKS ON HAND.  WITHIN A FEW
WEEKS PARKE DAVIS MODIFIED ITS PROGRAM.  ITS OFFICIALS BELIEVED THAT
THE SELLING AT DISCOUNT PRICES WOULD BE DETERRED, AND THE EFFECTS
MINIMIZED OF ANY ISOLATED INSTANCES OF DISCOUNT SELLING WHICH MIGHT
CONTINUE, IF ALL ADVERTISING OF SUCH PRICES WERE DISCONTINUED.  IN
AUGUST THE PARKE DAVIS REPRESENTATIVES AGAIN CALLED ON THE RETAILERS
INDIVIDUALLY.   WHEN INTERVIEWED, THE PRESIDENT OF DART DRUG COMPANY
INDICATED THAT HE MIGHT BE WILLING TO STOP ADVERTISING, ALTHOUGH
CONTINUING TO SELL AT DISCOUNT PRICES, IF SHIPMENTS TO HIM WERE
RESUMED.  EACH OF THE OTHER RETAILERS WAS THEN TOLD INDIVIDUALLY BY
PARKE DAVIS REPRESENTATIVES THAT DART WAS READY TO DISCONTINUE
ADVERTISING.  EACH THEREUPON SAID THAT IF DART STOPPED ADVERTISING HE
WOULD ALSO.  ON AUGUST 28 PARKE DAVIS REPORTED THIS REACTION TO DART. 
THEREAFTER ALL OF THE RETAILERS DISCONTINUED ADVERTISING OF PARKE DAVIS
VITAMINS AT LESS THAN SUGGESTED MINIMUM RETAIL PRICES AND PARKE DAVIS
AND THE WHOLESALERS RESUMED SALES OF PARKE DAVIS PRODUCTS TO THEM. 
HOWEVER, THE SUSPENSION OF ADVERTISING LASTED ONLY A MONTH.  ONE OF THE
RETAILERS AGAIN STARTED NEWSPAPER ADVERTISING IN SEPTEMBER AND, DESPITE
EFFORTS OF PARKE DAVIS TO PREVENT IT, THE OTHERS QUICKLY FOLLOWED
SUIT.  PARKE DAVIS THEN STOPPED TRYING TO PROMOTE THE RETAILERS'
ADHERENCE TO ITS SUGGESTED RESALE PRICES, AND NEITHER IT NOR THE
WHOLESALERS HAVE SINCE DECLINED FURTHER DEALINGS WITH THEM.  (FN5)  A
REASON FOR THIS WAS THAT THE DEPARTMENT OF JUSTICE, ON COMPLAINT OF
DART DRUG COMPANY, HAD BEGUN AN INVESTIGATION OF POSSIBLE VIOLATION OF
THE ANTITRUST LAWS. 

THE DISTRICT COURT HELD THAT THE GOVERNMENT'S PROOFS DID NOT
ESTABLISH A VIOLATION OF THE SHERMAN ACT BECAUSE "THE ACTIONS OF PARKE
DAVIS WERE PROPERLY UNILATERAL AND SANCTIONED BY LAW UNDER THE DOCTRINE
LAID DOWN IN THE CASE OF UNITED STATES V. COLGATE & CO., 250 U.S. 300
...  ."  164 F. SUPP., AT 829. 

THE COLGATE CASE CAME TO THIS COURT ON WRIT OF ERROR UNDER THE
CRIMINAL APPEALS ACT, 34 STAT. 1246, FROM A DISTRICT COURT JUDGMENT
DISMISSING AN INDICTMENT FOR VIOLATION OF THE SHERMAN ACT.  THE
INDICTMENT PROCEEDED SOLELY UPON THE THEORY OF AN UNLAWFUL COMBINATION
BETWEEN COLGATE AND ITS WHOLESALE AND RETAIL DEALERS FOR THE PURPOSE
AND WITH THE EFFECT OF PROCURING ADHERENCE ON THE PART OF THE DEALERS
TO RESALE PRICES FIXED BY THE COMPANY.  HOWEVER, THE DISTRICT COURT
CONSTRUED THE INDICTMENT AS NOT CHARGING A COMBINATION BY AGREEMENT
BETWEEN COLGATE AND ITS CUSTOMERS TO MAINTAIN PRICES.  THIS COURT HELD
THAT IT MUST DISREGARD THE ALLEGATIONS OF THE INDICTMENT SINCE THE
DISTRICT COURT'S INTERPRETATION OF THE INDICTMENT WAS BINDING AND THAT
WITHOUT AN ALLEGATION OF UNLAWFUL AGREEMENT THERE WAS NO SHERMAN ACT
VIOLATION CHARGED.  THE COURT SAID: 

"THE PURPOSE OF THE SHERMAN ACT IS TO PROHIBIT MONOPOLIES, CONTRACTS
AND COMBINATIONS WHICH PROBABLY WOULD UNDULY INTERFERE WITH THE FREE
EXERCISE OF THEIR RIGHTS BY THOSE ENGAGED, OR WHO WISH TO ENGAGE, IN
TRADE AND COMMERCE - IN A WORD TO PRESERVE THE RIGHT OF FREEDOM TO
TRADE.  IN THE ABSENCE OF ANY PURPOSE TO CREATE OR MAINTAIN A MONOPOLY,
THE ACT DOES NOT RESTRICT THE LONG RECOGNIZED RIGHT OF TRADER OR
MANUFACTURER ENGAGED IN AN ENTIRELY PRIVATE BUSINESS, FREELY TO
EXERCISE HIS OWN INDEPENDENT DISCRETION AS TO PARTIES WITH WHOM HE WILL
DEAL.  AND, OF COURSE, HE MAY ANNOUNCE IN ADVANCE THE CIRCUMSTANCES
UNDER WHICH HE WILL REFUSE TO SELL."  250 U.S., AT 307. 

THE GOVERNMENT CONCEDES FOR THE PURPOSES OF THIS CASE THAT UNDER THE
COLGATE DOCTRINE A MANUFACTURER, HAVING ANNOUNCED A PRICE MAINTENANCE
POLICY, MAY BRING ABOUT ADHERENCE TO IT BY REFUSING TO DEAL WITH
CUSTOMERS WHO DO NOT OBSERVE THAT POLICY.  THE GOVERNMENT CONTENDS,
HOWEVER, THAT SUBSEQUENT DECISIONS OF THIS COURT COMPEL THE HOLDING
THAT WHAT PARKE DAVIS DID HERE BY ENTWINING THE WHOLESALERS AND
RETAILERS IN A PROGRAM TO PROMOTE GENERAL COMPLIANCE WITH ITS PRICE
MAINTENANCE POLICY WENT BEYOND MERE CUSTOMER SELECTION AND CREATED
COMBINATIONS OR CONSPIRACIES TO ENFORCE RESALE PRICE MAINTENANCE IN
VIOLATION OF SECS. 1 AND 3 OF THE SHERMAN ACT. 

THE HISTORY OF THE COLGATE DOCTRINE IS BEST UNDERSTOOD BY REFERENCE
TO A CASE WHICH PRECEDED THE COLGATE DECISION, DR. MILES MEDICAL CO. V.
PARK & SONS CO., 220 U.S. 373.  DR. MILES ENTERED INTO WRITTEN
CONTRACTS WITH ITS CUSTOMERS OBLIGATING THEM TO SELL ITS MEDICINE AT
PRICES FIXED BY IT. THE COURT HELD THAT THE CONTRACTS WERE VOID BECAUSE
THEY VIOLATED BOTH THE COMMON LAW AND THE SHERMAN ACT.  THE COLGATE
DECISION DISTINGUISHED DR. MILES ON THE GROUND THAT THE COLGATE
INDICTMENT DID NOT CHARGE THAT COMPANY WITH SELLING ITS PRODUCTS TO
DEALERS UNDER AGREEMENTS WHICH OBLIGATED THE LATTER NOT TO RESELL
EXCEPT AT PRICES FIXED BY THE SELLER.  THE COLGATE DECISION CREATED
SOME CONFUSION AND DOUBT AS TO THE CONTINUING VITALITY OF THE
PRINCIPLES ANNOUNCED IN DR. MILES.  THIS BROUGHT UNITED STATES V.
SCHRADER'S SON, INC., 252 U.S. 85, TO THE COURT.  THE CASE INVOLVED THE
PROSECUTION OF A COMPONENTS MANUFACTURER FOR ENTERING INTO PRICE-FIXING
AGREEMENTS WITH RETAILERS, JOBBERS AND MANUFACTURERS WHO USED HIS
PRODUCTS.  THE DISTRICT COURT DISMISSED, SAYING:    "GRANTING THE
FUNDAMENTAL PROPOSITION STATED IN THE COLGATE CASE, THAT THE
MANUFACTURER HAS AN UNDOUBTED RIGHT TO SPECIFY RESALE PRICES AND REFUSE
TO DEAL WITH ANY ONE WHO FAILS TO MAINTAIN THE SAME, OR, AS FURTHER
STATED, THE ACT DOES NOT RESTRICT THE LONG-RECOGNIZED RIGHT OF A TRADER
OR MANUFACTURER ENGAGED IN AN ENTIRELY PRIVATE BUSINESS FREELY TO
EXERCISE HIS OWN INDEPENDENT DISCRETION AS TO PARTIES WITH WHOM HE WILL
DEAL, AND THAT HE OF COURSE MAY ANNOUNCE IN ADVANCE THE CIRCUMSTANCES
UNDER WHICH HE WILL REFUSE TO SELL, IT SEEMS TO ME THAT IT IS A
DISTINCTION WITHOUT A DIFFERENCE TO SAY THAT HE MAY DO SO BY THE
SUBTERFUGES AND DEVICES SET FORTH IN THE COLGATE OPINION AND NOT
VIOLATE THE SHERMAN ANTI-TRUST ACT, YET IF HE HAD DONE THE SAME THING
IN THE FORM OF A WRITTEN AGREEMENT, ADEQUATE ONLY TO EFFECTUATE THE
SAME PURPOSE, HE WOULD BE GUILTY OF A VIOLATION OF THE LAW  ...  ." 
264 F. 175, 184. 

THIS COURT REVERSED, AND SAID: 

"THE COURT BELOW MISAPPREHENDED THE MEANING AND EFFECT OF THE OPINION
AND JUDGMENT IN COLGATE.  WE HAD NO INTENTION TO OVERRULE OR MODIFY THE
DOCTRINE OF DR. MILES MEDICAL CO. V. PARK & SONS CO., WHERE THE EFFORT
WAS TO DESTROY THE DEALERS' INDEPENDENT DISCRETION THROUGH RESTRICTIVE
AGREEMENTS."   252 U.S., AT 99. 

THE COURT WENT ON TO EXPLAIN THAT THE STATEMENT FROM COLGATE QUOTED
EARLIER IN THIS OPINION MEANT NO MORE THAN THAT A MANUFACTURER IS NOT
GUILTY OF A COMBINATION OR CONSPIRACY IF HE MERELY "INDICATES HIS
WISHES CONCERNING PRICES AND DECLINES FURTHER DEALINGS WITH ALL WHO
FAIL TO OBSERVE THEM  ...  "; HOWEVER THERE IS UNLAWFUL COMBINATION
WHERE A MANUFACTURER "ENTERS INTO AGREEMENTS - WHETHER EXPRESS OR
IMPLIED FROM A COURSE OF DEALING OR OTHER CIRCUMSTANCES - WITH ALL
CUSTOMERS  ...  WHICH UNDERTAKE TO BIND THEM TO OBSERVE FIXED RESALE
PRICES."  IBID.

THE NEXT DECISION WAS FREY & SON, INC., V. CUDAHY PACKING CO., 256
U.S. 208.  THAT WAS A TREBLE DAMAGE SUIT ALLEGING A CONSPIRACY IN
VIOLATION OF THE SHERMAN ACT BETWEEN THE MANUFACTURER AND JOBBERS TO
MAINTAIN RESALE PRICES.  THE PLAINTIFF RECOVERED A JUDGMENT.  THE COURT
OF APPEALS FOR THE FOURTH CIRCUIT REVERSED ON THE AUTHORITY OF
COLGATE.  THE COURT OF APPEALS CONCLUDED:  "THERE WAS NO FORMAL WRITTEN
OR ORAL AGREEMENT WITH JOBBERS FOR THE MAINTENANCE OF PRICES" AND IN
THAT CIRCUMSTANCE HELD THAT UNDER COLGATE THE TRIAL COURT SHOULD HAVE
DIRECTED A VERDICT FOR THE DEFENDANT.  IN HOLDING THAT THE COURT OF
APPEALS ERRED, THIS COURT REFERRED TO THE DECISION IN SCHRADER AS
HOLDING THAT THE "ESSENTIAL AGREEMENT, COMBINATION OR CONSPIRACY MIGHT
BE IMPLIED FROM A COURSE OF DEALING OR OTHER CIRCUMSTANCES," SO THAT IN
CUDAHY, "HAVING REGARD TO THE COURSE OF DEALING AND ALL THE PERTINENT
FACTS DISCLOSED BY THE PRESENT RECORD, WE THINK WHETHER THERE EXISTED
AN UNLAWFUL COMBINATION OR AGREEMENT BETWEEN THE MANUFACTURER AND
JOBBERS WAS A QUESTION FOR THE JURY TO DECIDE, AND THAT THE CIRCUIT
COURT OF APPEALS ERRED WHEN IT HELD OTHERWISE."  256 U.S., AT 210. 

BUT THE COURT ALSO HELD IMPROPER AN INSTRUCTION WHICH WAS GIVEN TO
THE JURY THAT A VIOLATION OF THE SHERMAN ACT MIGHT BE FOUND IF THE JURY
SHOULD FIND AS FACTS THAT THE DEFENDANT "INDICATED A SALES PLAN TO THE
WHOLESALERS AND JOBBERS, WHICH PLAN FIXED THE PRICE BELOW WHICH THE
WHOLESALERS AND JOBBERS WERE NOT TO SELL TO RETAILERS, AND  ...  THAT
...  THE GREAT MAJORITY OF THEM NOT ONLY EXPRESSED NO DISSENT FROM SUCH
PLAN, BUT ACTUALLY COOPERATED IN CARRYING IT OUT BY THEMSELVES SELLING
AT THE PRICES NAMED  ...  ."  256 U.S. 210-211.  HOWEVER, THE AUTHORITY
OF THIS HOLDING CONDEMNING THE INSTRUCTION HAS BEEN SERIOUSLY
UNDERMINED BY SUBSEQUENT DECISIONS WHICH WE ARE ABOUT TO DISCUSS. 
THEREFORE, CUDAHY DOES NOT SUPPORT THE DISTRICT COURT'S ACTION IN THIS
CASE, AND WE CANNOT FOLLOW IT HERE.  LESS THAN A YEAR AFTER CUDAHY WAS
HANDED DOWN, THE COURT DECIDED FEDERAL TRADE COMM'N V. BEECH-NUT
PACKING CO., 257 U.S. 441, WHICH PRESENTED A SITUATION BEARING A MARKED
RESEMBLANCE TO THE PARKE DAVIS PROGRAM. 

IN BEECH-NUT THE COMPANY HAD ADOPTED A POLICY OF REFUSING TO SELL ITS
PRODUCTS TO WHOLESALERS OR RETAILERS WHO DID NOT ADHERE TO A SCHEDULE
OF RESALE PRICES.  BEECH-NUT LATER IMPLEMENTED THIS POLICY BY REFUSING
TO SELL TO WHOLESALERS WHO SOLD TO RETAILERS WHO WOULD NOT ADHERE TO
THE POLICY.  TO DETECT VIOLATIONS THE COMPANY UTILIZED CODE NUMBERS ON
ITS PRODUCTS AND INSTITUTED A SYSTEM OF REPORTING.  WHEN AN OFFENDER
WAS CUT OFF, HE WOULD BE REINSTATED UPON THE GIVING OF ASSURANCES THAT
HE WOULD MAINTAIN PRICES IN THE FUTURE.  THE COURT CONSTRUED THE
FEDERAL TRADE COMMISSION ACT TO AUTHORIZE THE COMMISSION TO FORBID
PRACTICES WHICH HAD A "DANGEROUS TENDENCY UNDULY TO HINDER COMPETITION
OR CREATE MONOPOLY."  257 U.S., AT 454.  THE SHERMAN ACT WAS HELD TO BE
A GUIDE TO WHAT CONSTITUTED AN UNFAIR METHOD OF COMPETITION.  THE
COMPANY HAD URGED THAT ITS CONDUCT WAS ENTIRELY LEGAL UNDER THE SHERMAN
ACT AS INTERPRETED BY COLGATE.  THE COURT REJECTED THIS CONTENTION,
SAYING THAT "THE BEECH-NUT SYSTEM GOES FAR BEYOND THE SIMPLE REFUSAL TO
SELL GOODS TO PERSONS WHO WILL NOT SELL AT STATED PRICES, WHICH IN THE
COLGATE CASE WAS HELD TO BE WITHIN THE LEGAL RIGHT OF THE PRODUCER." 
IBID.  THE COURT HELD FURTHER THAT THE NONEXISTENCE OF CONTRACTS
COVERING THE PRACTICES WAS IRRELEVANT SINCE "THE SPECIFIC FACTS FOUND
SHOW SUPPRESSION OF THE FREEDOM OF COMPETITION BY METHODS IN WHICH THE
COMPANY SECURES THE COOPERATION OF ITS DISTRIBUTORS AND CUSTOMERS,
WHICH ARE QUITE AS EFFECTUAL AS AGREEMENTS EXPRESS OR IMPLIED INTENDED
TO ACCOMPLISH THE SAME PURPOSE."  ID., AT 455.  THAT THE COURT
CONSIDERED THAT THE SHERMAN ACT VIOLATION THUS ESTABLISHED WAS
DISPOSITIVE OF THE ISSUE BEFORE IT IS SHOWN BY THE GROUND TAKEN BY MR.
JUSTICE MCREYNOLDS IN DISSENT.  THE PARTIES HAD STIPULATED THAT THERE
WERE NO CONTRACTS COVERING THE POLICY.  RELYING ON HIS VIEW OF COLGATE,
HE ASKED:  "HOW CAN THERE BE METHODS OF COOPERATION  ...  WHEN THE
EXISTENCE OF THE ESSENTIAL CONTRACTS IS DEFINITELY EXCLUDED?"  ID., AT
459.  THE MAJORITY DID NOT READ COLGATE AS REQUIRING SUCH CONTRACTS;
RATHER, THE COURT DISPELLED THE CONFUSION OVER WHETHER A COMBINATION
EFFECTED BY CONTRACTUAL ARRANGEMENTS, EXPRESS OR IMPLIED, WAS NECESSARY
TO A FINDING OF SHERMAN ACT VIOLATION BY LIMITING COLGATE TO A HOLDING
THAT WHEN THE ONLY ACT SPECIFIED IN THE INDICTMENT AMOUNTED TO SAYING
THAT THE TRADER HAD EXERCISED HIS RIGHT TO DETERMINE THOSE WITH WHOM HE
WOULD DEAL, AND TO ANNOUNCE THE CIRCUMSTANCES UNDER WHICH HE WOULD
REFUSE TO SELL, NO SHERMAN ACT VIOLATION WAS MADE OUT.  HOWEVER,
BECAUSE BEECH-NUT'S METHODS WERE AS EFFECTIVE AS AGREEMENTS IN
PRODUCING THE RESULT THAT "ALL WHO WOULD DEAL IN THE COMPANY'S PRODUCTS
ARE CONSTRAINED TO SELL AT THE SUGGESTED PRICES," 257 U.S., AT 455, THE
COURT HELD THAT THE SECURING OF THE CUSTOMERS' ADHERENCE BY SUCH
METHODS CONSTITUTED THE CREATION OF AN UNLAWFUL COMBINATION TO SUPPRESS
PRICE COMPETITION AMONG THE RETAILERS. 

THAT BEECH-NUT NARROWLY LIMITED COLGATE AND ANNOUNCED PRINCIPLES
WHICH SUBJECT TO SHERMAN ACT LIABILITY THE PRODUCER WHO SECURES HIS
CUSTOMERS' ADHERENCE TO HIS RESALE PRICES BY METHODS WHICH GO BEYOND
THE SIMPLE REFUSAL TO SELL TO CUSTOMERS WHO WILL NOT RESELL AT STATED
PRICES, WAS MADE CLEAR IN UNITED STATES V. BAUSCH & LOMB OPTICAL CO.,
321 U.S. 707, 722: 

"THE BEECH-NUT CASE RECOGNIZES THAT A SIMPLE REFUSAL TO SELL TO
OTHERS WHO DO NOT MAINTAIN THE FIRST SELLER'S FIXED RESALE PRICES IS
LAWFUL BUT ADDS AS TO THE SHERMAN ACT, 'HE (THE SELLER) MAY NOT,
CONSISTENTLY WITH THE ACT, GO BEYOND THE EXERCISE OF THIS RIGHT, AND BY
CONTRACTS OR COMBINATIONS, EXPRESS OR IMPLIED, UNDULY HINDER OR
OBSTRUCT THE FREE AND NATURAL FLOW OF COMMERCE IN THE CHANNELS OF
INTERSTATE TRADE.'  257 U.S. AT 453.  THE BEECH-NUT COMPANY, WITHOUT
AGREEMENTS, WAS FOUND TO SUPPRESS THE FREEDOM OF COMPETITION BY
COERCION OF ITS CUSTOMERS THROUGH SPECIAL AGENTS OF THE COMPANY, BY
REPORTS OF COMPETITORS ABOUT CUSTOMERS WHO VIOLATED RESALE PRICES, AND
BY BOYCOTTS OF PRICE CUTTERS  ...  ." 

BAUSCH & LOMB, LIKE THE INSTANT CASE, WAS AN ACTION BY THE UNITED
STATES TO RESTRAIN ALLEGED VIOLATIONS OF SECS. 1 AND 3 OF THE SHERMAN
ACT.  THE COURT, RELYING ON BEECH-NUT, HELD THAT A DISTRIBUTOR, SOFT
LITE LENS COMPANY, INC., VIOLATED THE SHERMAN ACT WHEN, AS WAS THE CASE
WITH PARKE DAVIS, THE REFUSAL TO SELL TO WHOLESALERS WAS NOT USED
SIMPLY TO INDUCE ACQUIESCENCE OF THE WHOLESALERS IN THE DISTRIBUTOR'S
PUBLISHED RESALE PRICE LIST; THE WHOLESALERS "ACCEPTED SOFT-LITE'S
PROFFER OF A PLAN OF DISTRIBUTION BY COOPERATING IN PRICES, LIMITATION
OF SALES TO AND APPROVAL OF RETAIL LICENSEES.  THAT IS SUFFICIENT  ...
.  WHETHER THIS CONSPIRACY AND COMBINATION WAS ACHIEVED BY AGREEMENT OR
BY ACQUIESCENCE OF THE WHOLESALERS COUPLED WITH ASSISTANCE IN
EFFECTUATING ITS PURPOSE IS IMMATERIAL."  321 U.S., AT 723.  THUS,
WHATEVER UNCERTAINTY PREVIOUSLY EXISTED AS TO THE SCOPE OF THE COLGATE
DOCTRINE, BAUSCH & LOMB AND BEECH-NUT PLAINLY FASHIONED ITS DIMENSIONS
AS MEANING NO MORE THAN THAT A SIMPLE REFUSAL TO SELL TO CUSTOMERS WHO
WILL NOT RESELL AT PRICES SUGGESTED BY THE SELLER IS PERMISSIBLE UNDER
THE SHERMAN ACT.  IN OTHER WORDS, AN UNLAWFUL COMBINATION IS NOT JUST
SUCH AS ARISES FROM A PRICE MAINTENANCE AGREEMENT, EXPRESS OR IMPLIED;
SUCH A COMBINATION IS ALSO ORGANIZED IF THE PRODUCER SECURES ADHERENCE
TO HIS SUGGESTED PRICES BY MEANS WHICH GO BEYOND HIS MERE DECLINATION
TO SELL TO A CUSTOMER WHO WILL NOT OBSERVE HIS ANNOUNCED POLICY. 

IN THE CASES DECIDED BEFORE BEECH-NUT THE COURT'S INQUIRY WAS
DIRECTED TO WHETHER THE MANUFACTURER HAD ENTERED INTO ILLICIT
CONTRACTS, EXPRESS OR IMPLIED.  THE DISTRICT COURT IN THIS CASE
APPARENTLY ASSUMED THAT THE GOVERNMENT COULD PREVAIL ONLY BY
ESTABLISHING A CONTRACTUAL ARRANGEMENT, ALBEIT IMPLIED, BETWEEN PARKE
DAVIS AND ITS CUSTOMERS.  PROCEEDING FROM THE SAME PREMISE PARKE DAVIS
STRENUOUSLY URGES THAT RULE 52 OF THE RULES OF CIVIL PROCEDURE COMPELS
AN AFFIRMANCE OF THE DISTRICT COURT SINCE UNDER THAT RULE THE FINDING
THAT THERE WERE NO CONTRACTUAL ARRANGEMENTS SHOULD "NOT BE SET ASIDE
UNLESS CLEARLY ERRONEOUS."  BUT RULE 52 HAS NO APPLICATION HERE.  THE
DISTRICT COURT PREMISED ITS ULTIMATE FINDING THAT PARKE DAVIS DID NOT
VIOLATE THE SHERMAN ACT ON AN ERRONEOUS INTERPRETATION OF THE STANDARD
TO BE APPLIED.  THE BAUSCH & LOMB AND BEECH-NUT DECISIONS CANNOT BE
READ AS MERELY LIMITED TO PARTICULAR FACT COMPLEXES JUSTIFYING THE
INFERENCE OF AN AGREEMENT IN VIOLATION OF THE SHERMAN ACT.  BOTH CASES
TEACH THAT JUDICIAL INQUIRY IS NOT TO STOP WITH A SEARCH OF THE RECORD
FOR EVIDENCE OF PURELY CONTRACTUAL ARRANGEMENTS.  THE SHERMAN ACT
FORBIDS COMBINATIONS OF TRADERS TO SUPPRESS COMPETITION.  TRUE, THERE
RESULTS THE SAME ECONOMIC EFFECT AS IS ACCOMPLISHED BY A PROHIBITED
COMBINATION TO SUPPRESS PRICE COMPETITION IF EACH CUSTOMER, ALTHOUGH
INDUCED TO DO SO SOLELY BY A MANUFACTURER'S ANNOUNCED POLICY,
INDEPENDENTLY DECIDES TO OBSERVE SPECIFIED RESALE PRICES.  SO LONG AS
COLGATE IS NOT OVERRULED, THIS RESULT IS TOLERATED BUT ONLY WHEN IT IS
THE CONSEQUENCE OF A MERE REFUSAL TO SELL IN THE EXERCISE OF THE
MANUFACTURER'S RIGHT "FREELY TO EXERCISE HIS OWN INDEPENDENT DISCRETION
AS TO PARTIES WITH WHOM HE WILL DEAL."  WHEN THE MANUFACTURER'S
ACTIONS, AS HERE, GO BEYOND MERE ANNOUNCEMENT OF HIS POLICY AND THE
SIMPLE REFUSAL TO DEAL, AND HE EMPLOYS OTHER MEANS WHICH EFFECT
ADHERENCE TO HIS RESALE PRICES, THIS COUNTERVAILING CONSIDERATION IS
NOT PRESENT AND THEREFORE HE HAS PUT TOGETHER A COMBINATION IN
VIOLATION OF THE SHERMAN ACT.  THUS, WHETHER AN UNLAWFUL COMBINATION OR
CONSPIRACY IS PROVED IS TO BE JUDGED BY WHAT THE PARTIES ACTUALLY DID
RATHER THAN BY THE WORDS THEY USED.  SEE EASTERN STATES RETAIL LUMBER
DEALERS' ASSN. V. UNITED STATES, 234 U.S. 600, 612.  BECAUSE OF THE
NATURE OF THE DISTRICT COURT'S ERROR WE ARE REVIEWING A QUESTION OF
LAW, NAMELY, WHETHER THE DISTRICT COURT APPLIED THE PROPER STANDARD TO
ESSENTIALLY UNDISPUTED FACTS.  SEE INTERSTATE CIRCUIT V. UNITED STATES,
306 U.S. 208; UNITED STATES V. MASONITE CORP., 316 U.S. 265; UNITED
STATES V. UNITED STATES GYPSUM CO., 333 U.S. 364; UNITED STATES V. DU
PONT, 353 U.S. 586; AND ALSO UNITED STATES V. FELIN & CO., 334 U.S.
624; GREAT ATLANTIC & PACIFIC TEA CO. V. SUPERMARKET EQUIPMENT CORP.,
340 U.S. 147. 

THE PROGRAM UPON WHICH PARKE DAVIS EMBARKED TO PROMOTE GENERAL
COMPLIANCE WITH ITS SUGGESTED RESALE PRICES PLAINLY EXCEEDED THE
LIMITATIONS OF THE COLGATE DOCTRINE AND UNDER BEECH-NUT AND BAUSCH &
LOMB EFFECTED ARRANGEMENTS WHICH VIOLATED THE SHERMAN ACT.  PARKE DAVIS
DID NOT CONTENT ITSELF WITH ANOUNCING ITS POLICY REGARDING RETAIL
PRICES AND FOLLOWING THIS WITH A SIMPLE REFUSAL TO HAVE BUSINESS
RELATIONS WITH ANY RETAILERS WHO DISREGARDED THAT POLICY.  INSTEAD
PARKE DAVIS USED THE REFUSAL TO DEAL WITH THE WHOLESALERS IN ORDER TO
ELICIT THEIR WILLINGNESS TO DENY PARKE DAVIS PRODUCTS TO RETAILERS AND
THEREBY HELP GAIN THE RETAILERS' ADHERENCE TO ITS SUGGESTED MINIMUM
RETAIL PRICES.  THE RETAILERS WHO DISREGARDED THE PRICE POLICY WERE
PROMPTLY CUT OFF WHEN PARKE DAVIS SUPPLIED THE WHOLESALERS WITH THEIR
NAMES.  THE LARGE RETAILER WHO SAID HE WOULD "ABIDE" BY THE PRICE
POLICY, THE MULTI-UNIT PEOPLES DRUG CHAIN, WAS NOT CUT OFF.  (FN6)  IN
THUS INVOLVING THE WHOLESALERS TO STOP THE FLOW OF PARKE DAVIS PRODUCTS
TO THE RETAILERS, THEREBY INDUCING RETAILERS' ADHERENCE TO ITS
SUGGESTED RETAIL PRICES, PARKE DAVIS CREATED A COMBINATION WITH THE
RETAILERS AND THE WHOLESALERS TO MAINTAIN RETAIL PRICES AND VIOLATED
THE SHERMAN ACT.  ALTHOUGH PARKE DAVIS' ORIGINALLY ANNOUNCED
WHOLESALERS' POLICY WOULD NOT UNDER COLGATE HAVE VIOLATED THE SHERMAN
ACT IF ITS ACTION THEREUNDER WAS THE SIMPLE REFUSAL WITHOUT MORE TO
DEAL WITH WHOLESALERS WHO DID NOT OBSERVE THE WHOLESALERS' NET PRICE
SELLING SCHEDULE, THAT ENTIRE POLICY WAS TAINTED WITH THE "VICE OF  ...
ILLEGALITY," CF.  UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S.
707, 724, WHEN PARKE DAVIS USED IT AS THE VEHICLE TO GAIN THE
WHOLESALERS' PARTICIPATION IN THE PROGRAM TO EFFECTUATE THE RETAILERS'
ADHERENCE TO THE SUGGESTED RETAIL PRICES.    MOREOVER, PARKE DAVIS ALSO
EXCEEDED THE "LIMITED DISPENSATION WHICH COLGATE CONFERS," TIMES
PICAYUNE PUB. CO. V. UNITED STATES, 345 U.S. 594, 626, IN ANOTHER WAY,
WHICH DEMONSTRATES HOW FAR PARKE DAVIS WENT BEYOND THE LIMITS OF THE
COLGATE DOCTRINE.  WITH REGARD TO THE RETAILERS' SUSPENSION OF
ADVERTISING, PARKE DAVIS DID NOT REST WITH THE SIMPLE ANNOUNCEMENT TO
THE TRADE OF ITS POLICY IN THAT REGARD FOLLOWED BY A REFUSAL TO SELL TO
THE RETAILERS WHO WOULD NOT OBSERVE IT. FIRST IT DISCUSSED THE SUBJECT
WITH DART DRUG.  WHEN DART INDICATED WILLINGNESS TO GO ALONG THE OTHER
RETAILERS WERE APPROACHED AND DART'S APPARENT WILLINGNESS TO COOPERATE
WAS USED AS THE LEVER TO GAIN THEIR ACQUIESCENCE IN THE PROGRAM. 
HAVING SECURED THOSE ACQUIESCENCES PARKE DAVIS RETURNED TO DART DRUG
WITH THE REPORT OF THAT ACCOMPLISHMENT.  NOT UNTIL ALL THIS WAS DONE
WAS THE ADVERTISING SUSPENDED AND SALES TO ALL THE RETAILERS RESUMED. 
IN THIS MANNER PARKE DAVIS SOUGHT ASSURANCES OF COMPLIANCE AND GOT
THEM, AS WELL AS THE COMPLIANCE ITSELF.  IT WAS ONLY BY ACTIVELY
BRINGING ABOUT SUBSTANTIAL UNANIMITY AMONG THE COMPETITORS THAT PARKE
DAVIS WAS ABLE TO GAIN ADHERENCE TO ITS POLICY.  IT MUST BE ADMITTED
THAT A SELLER'S ANNOUNCEMENT THAT HE WILL NOT DEAL WITH CUSTOMERS WHO
DO NOT OBSERVE HIS POLICY MAY TEND TO ENGENDER CONFIDENCE IN EACH
CUSTOMER THAT IF HE COMPLIES HIS COMPETITORS WILL ALSO.  BUT IF A
MANUFACTURER IS UNWILLING TO RELY ON INDIVIDUAL SELF-INTEREST TO BRING
ABOUT GENERAL VOLUNTARY ACQUIESCENCE WHICH HAS THE COLLATERAL EFFECT OF
ELIMINATING PRICE COMPETITION, AND TAKES AFFIRMATIVE ACTION TO ACHIEVE
UNIFORM ADHERENCE BY INDUCING EACH CUSTOMER TO ADHERE TO AVOID SUCH
PRICE COMPETITION, THE CUSTOMERS' ACQUIESCENCE IS NOT THEN A MATTER OF
INDIVIDUAL FREE CHOICE PROMPTED ALONE BY THE DESIRABILITY OF THE
PRODUCT.  THE PRODUCT THEN COMES PACKAGED IN A COMPETITION-FREE
WRAPPING - A VALUABLE FEATURE IN ITSELF - BY VIRTUE OF CONCERTED ACTION
INDUCED BY THE MANUFACTURER.  THE MANUFACTURER IS THUS THE ORGANIZER OF
A PRICE-MAINTENANCE COMBINATION OR CONSPIRACY IN VIOLATION OF THE
SHERMAN ACT.  UNDER THAT ACT "COMPETITION NOT COMBINATION, SHOULD BE
THE LAW OF TRADE," NATIONAL COTTON OIL CO. V. TEXAS, 197 U.S. 115, 129,
AND "A COMBINATION FORMED FOR THE PURPOSE AND WITH THE EFFECT OF
RAISING, DEPRESSING, FIXING, PEGGING, OR STABILIZING THE PRICE OF A
COMMODITY IN INTERSTATE OR FOREIGN COMMERCE IS ILLEGAL PER SE."  UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 223.  AND SEE UNITED
STATES V. MCKESSON & ROBBINS, INC., 351 U.S. 305; KIEFER-STEWART CO. V.
SEAGRAM & SONS, INC., 340 U.S. 211; EASTERN STATES RETAIL LUMBER
DEALERS' ASSN. V. UNITED STATES, 234 U.S. 600. 

THE DISTRICT COURT ALSO ALTERNATIVELY RESTED ITS JUDGMENT OF
DISMISSAL ON THE HOLDING THAT "  ... EVEN IF THE UNLAWFUL CONDITIONS
ALLEGED IN THE COMPLAINT HAD ACTUALLY BEEN PROVED, SINCE 1956 THEY NO
LONGER EXISTED, AND THERE IS NO REASON TO BELIEVE, OR EVEN SURMISE, THE
UNLAWFUL ACTS ALLEGED CAN POSSIBLY BE REPEATED  ...  ."  164 F. SUPP.
827, 830.  WE ARE OF THE VIEW THAT THE EVIDENCE DOES NOT JUSTIFY ANY
SUCH FINDING.  THE DISTRICT COURT STATED THAT "THE COMPELLING REASON
FOR DEFENDANT'S SO DOING (CEASING ITS EFFORTS) WAS FORCED UPON IT BY
BUSINESS AND ECONOMIC CONDITIONS IN ITS FIELD."  THERE IS NO EVIDENCE
IN THE RECORD THAT THIS WAS THE REASON AND ANY SUCH CONCLUSION MUST
REST ON SPECULATION.  IT DOES NOT APPEAR EVEN THAT PARKE DAVIS HAS
ANNOUNCED TO THE TRADE THAT IT WILL ABANDON THE PRACTICES WE HAVE
CONDEMNED.  SO FAR AS THE RECORD INDICATES ANY REASON, IT IS THAT PARKE
DAVIS STOPPED ITS EFFORTS BECAUSE THE DEPARTMENT OF JUSTICE HAD
INSTITUTED AN INVESTIGATION.  THE PRESIDENT OF DART DRUG COMPANY
TESTIFIED THAT HE HAD TOLD THE PARKE DAVIS REPRESENTATIVES IN AUGUST
THAT HE HAD JUST BEEN TALKING TO THE DEPARTMENT OF JUSTICE
INVESTIGATORS.  HE STATED THAT THE PARKE DAVIS REPRESENTATIVES HAD SAID
THAT "THEY KNEW THAT THE ANTITRUST DIVISION WAS INVESTIGATING THEM ALL
OVER TOWN," AND THAT THIS WAS ONE OF THEIR REASONS FOR VISITING HIM. 
THE WITNESS TESTIFIED THAT IT WAS ON THIS OCCASION, AFTER THE
DISCUSSION OF THE INVESTIGATION, THAT THE PARKE DAVIS REPRESENTATIVES
FINALLY STATED THAT IF DART WOULD STOP ADVERTISING, PARKE DAVIS "WOULD
RESUME SHIPMENT, IN SO FAR AS THERE WAS AN ANTITRUST INVESTIGATION
GOING ON."  MOREOVER PARKE DAVIS' OWN EMPLOYEES, WHO WERE CALLED BY THE
GOVERNMENT AS WITNESSES AT THE TRIAL, ADMITTED THAT THEY WERE AWARE OF
THE INVESTIGATION AT THE TIME AND THAT THE INVESTIGATION WAS A REASON
FOR THE DISCONTINUANCE OF THE PROGRAM.  IT SEEMS TO US THAT IF THE
INVESTIGATION WOULD PROMPT PARKE DAVIS TO DISCONTINUE ITS EFFORTS, EVEN
MORE SO WOULD THE LITIGATION WHICH ENSUED. 

ON THE RECORD BEFORE US THE GOVERNMENT IS ENTITLED TO THE RELIEF IT
SEEKS.  THE COURTS HAVE AN OBLIGATION, ONCE A VIOLATION OF THE
ANTITRUST LAWS HAS BEEN ESTABLISHED, TO PROTECT THE PUBLIC FROM A
CONTINUATION OF THE HARMFUL AND UNLAWFUL ACTIVITIES.  A TRIAL COURT'S
WIDE DISCRETION IN FASHIONING REMEDIES IS NOT TO BE EXERCISED TO DENY
RELIEF ALTOGETHER BY LIGHTLY INFERRING AN ABANDONMENT OF THE UNLAWFUL
ACTIVITIES FROM A CESSATION WHICH SEEMS TIMED TO ANTICIPATE SUIT.  SEE
UNITED STATES V. OREGON STATE MEDICAL SOCIETY, 343 U.S. 326, 333. 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED TO THE DISTRICT COURT
WITH DIRECTIONS TO ENTER AN APPROPRIATE JUDGMENT ENJOINING PARKE DAVIS
FROM FURTHER VIOLATIONS OF THE SHERMAN ACT UNLESS THE COMPANY ELECTS TO
SUBMIT EVIDENCE IN DEFENSE AND REFUTES THE GOVERNMENT'S RIGHT TO
INJUNCTIVE RELIEF ESTABLISHED BY THE PRESENT RECORD.  IT IS SO
ORDERED. 

FN1  THE PERTINENT PROVISION OF SECTIONS 1, 3 AND 4 OF THE ACT OF
JULY 2, 1890, 26 STAT.  209, AS AMENDED (15 U.S.C. SECS. 1, 3, 4),
COMMONLY KNOWN AS THE SHERMAN ACT, ARE AS FOLLOWS: 

"SEC. 1.  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 HEREBY DECLARED TO BE
ILLEGAL  ...  .  EVERY PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN
ANY COMBINATION OR CONSPIRACY HEREBY DECLARED TO BE ILLEGAL SHALL BE
DEEMED GUILTY OF A MISDEMEANOR  ...  ." 

"SEC. 3.  EVERY CONTRACT, COMBINATION IN FORM OF TRUST OR OTHERWISE,
OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE IN  ...  THE DISTRICT
OF COLUMBIA, OR IN RESTRAINT OF TRADE OR COMMERCE  ... BETWEEN THE
DISTRICT OF COLUMBIA AND ANY STATE OR STATES OR FOREIGN NATIONS, IS
HEREBY DECLARED ILLEGAL.  EVERY PERSON WHO SHALL MAKE ANY SUCH CONTRACT
OR ENGAGE IN ANY SUCH COMBINATION OR CONSPIRACY, SHALL BE DEEMED GUILTY
OF A MISDEMEANOR  ...  . 

"SEC. 4.  THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE HEREBY
INVESTED WITH JURISDICTION TO PREVENT AND RESTRAIN VIOLATIONS OF THIS
ACT; AND IT SHALL BE THE DUTY OF THE SEVERAL UNITED STATES ATTORNEYS,
IN THEIR RESPECTIVE DISTRICTS, UNDER THE DIRECTION OF THE ATTORNEY
GENERAL, TO INSTITUTE PROCEEDINGS IN EQUITY TO PREVENT AND RESTRAIN
SUCH VIOLATIONS  ...  ." 

FN2  CONGRESS HAS PROVIDED THAT WHERE A STATE ADOPTS A "FAIR TRADE
LAW" WHICH PERMITS SELLERS UNDER CERTAIN CIRCUMSTANCES TO MAKE PRICE
FIXING AGREEMENTS WITH PURCHASERS, SUCH AGREEMENTS SHALL NOT BE HELD
ILLEGAL UNDER THE SHERMAN ACT, 15 U.S.C.  SEC. 1.  THE FAIR TRADE LAWS
ADOPTED IN 16 STATES HAVE BEEN INVALIDATED BY THEIR STATE COURTS ON
STATE GROUNDS.  H.R. REP. NO. 467, 86TH CONG., 1ST SESS. 6-7.  ON JUNE
9, 1959, THE HOUSE COMMITTEE ON INTERSTATE COMMERCE FAVORABLY REPORTED
A BILL WHICH, IF PASSED, WOULD ENACT A NATIONAL FAIR TRADE PRACTICE
ACT. 

FN3  32 STAT. 823, 15 U.S.C. SEC. 29, AS AMENDED BY SEC. 17 OF THE
ACT OF JUNE 25, 1948, 62 STAT. 989. 

FN4  WHEN PARKE DAVIS LEARNED FROM A WHOLESALER'S INVOICE THAT HE HAD
FILLED AN ORDER OF ONE OF THE RETAILERS, PARKE DAVIS PROTESTED BUT WAS
SATISFIED WHEN THE WHOLESALER EXPLAINED THAT THIS WAS AN OVERSIGHT. 

FN5  EXCEPT THAT IN DECEMBER 1957, PARKE DAVIS INFORMED DART DRUG
COMPANY THAT IT DID NOT INTEND TO HAVE ANY FURTHER DEALINGS WITH DART. 
THE LATTER HAS, HOWEVER, CONTINUED TO PURCHASE PARKE DAVIS PRODUCTS
FROM WHOLESALERS.  THUS, DART DRUG CANNOT RECEIVE THE VOLUME DISCOUNT
ON LARGE QUANTITY PURCHASES. 

FN6  INDEED, IF PEOPLES RESUMED ADHERENCE TO THE PARKE DAVIS PRICE
SCALE AFTER THE INTERVIEW BETWEEN ITS VICE-PRESIDENT AND PARKE DAVIS'
ASSISTANT BRANCH MANAGER, P. 34, SUPRA, SHOWS THAT PARKE DAVIS AND
PEOPLES ENTERED INTO A PRICE MAINTENANCE AGREEMENT, EXPRESS, TACIT OR
IMPLIED, SUCH AGREEMENT VIOLATED THE SHERMAN ACT WITHOUT REGARD TO ANY
WHOLESALERS' PARTICIPATION. 

MR. JUSTICE STEWART, CONCURRING. 

I CONCUR IN THE JUDGMENT.  THE COURT'S OPINION AMPLY DEMONSTRATES
THAT THE PRESENT RECORD SHOWS AN ILLEGAL COMBINATION TO MAINTAIN RETAIL
PRICES.  I THEREFORE FIND NO OCCASION TO QUESTION, EVEN BY INNUENDO,
THE CONTINUING VALIDITY OF THE COLGATE DECISION, 250 U.S. 300, OR OF
THE COURT'S RULING AS TO THE JURY INSTRUCTION IN CUDAHY, 256 U.S. 210
211. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

THE COURT'S OPINION REACHES MUCH FURTHER THAN AT ONCE MAY MEET THE
EYE, AND JUSTIFIES FULLER DISCUSSION THAN OTHERWISE MIGHT APPEAR
WARRANTED.  SCRUTINY OF THE OPINION WILL REVEAL THAT THE COURT HAS DONE
NO LESS THAN SEND TO ITS DEMISE THE COLGATE DOCTRINE WHICH HAS BEEN A
BASIC PART OF ANTITRUST LAW CONCEPTS SINCE IT WAS FIRST ANNOUNCED IN
1919 IN UNITED STATES V. COLGATE, 250 U.S. 300. 

I BEGIN WITH THAT DOCTRINE AND HOW IT WAS APPLIED BY THE DISTRICT
COURT IN THIS CASE.  IN THE WORDS OF THE COURT'S OPINION, COLGATE HELD
THAT IN THE ABSENCE OF A MONOPOLISTIC SETTING, "A MANUFACTURER, HAVING
ANNOUNCED A PRICE MAINTENANCE POLICY, MAY BRING ABOUT ADHERENCE TO IT
BY REFUSING TO DEAL WITH CUSTOMERS WHO DO NOT OBSERVE THAT POLICY." 
"AND," AS SAID IN COLGATE (AT 307), "OF COURSE, HE MAY ANNOUNCE IN
ADVANCE THE CIRCUMSTANCES UNDER WHICH HE WILL REFUSE TO SELL." 

THE GOVERNMENT'S COMPLAINT, SEEKING TO ENJOIN ALLEGED VIOLATIONS OF
SECS. 1 AND 3 OF THE SHERMAN ACT, (FN1) IN SUBSTANCE CHARGED PARKE
DAVIS WITH HAVING COMBINED AND CONSPIRED WITH WHOLESALERS AND RETAILERS
OF ITS PRODUCTS IN THE DISTRICT OF COLUMBIA AND VIRGINIA, IN FOUR
RESPECTS:  (1) WITH RETAILERS, TO FIX RETAIL PRICES; (2) WITH
RETAILERS, TO SUPPRESS ADVERTISING OF CUT PRICES; (3) WITH WHOLESALERS,
TO FIX WHOLESALE PRICES; AND (4) WITH WHOLESALERS, TO BOYCOTT RETAIL
PRICE CUTTERS.  THE COMPANY'S DEFENSE WAS THAT THE ACTIVITIES
COMPLAINED OF SIMPLY CONSTITUTED A LEGITIMATE EXERCISE OF ITS RIGHTS
UNDER THE COLGATE DOCTRINE.  THE DETAILED FINDINGS OF THE DISTRICT
COURT ARE EPITOMIZED IN ITS OPINION AS FOLLOWS: 

(1)  PARKE DAVIS "HAD WELL-ESTABLISHED POLICIES CONCERNING THE PRICES
AT WHICH ITS PRODUCTS WERE TO BE SOLD BY WHOLESALERS AND RETAILERS, AND
THE TYPE OF RETAILERS TO WHOM THE WHOLESALERS COULD RE-SELL".  (FN2) 

(2)  PARKE DAVIS'"REPRESENTATIVES  ...  NOTIFIED RETAILERS CONCERNING
THE POLICY UNDER WHICH ITS GOODS MUST BE SOLD, BUT THE RETAILERS WERE
FREE EITHER TO DO WITHOUT SUCH GOODS OR SELL THEM IN ACCORDANCE WITH
DEFENDANT'S POLICY". 

(3)  PARKE DAVIS'"REPRESENTATIVES LIKEWISE CONTACTED WHOLESALERS,
NOTIFYING THEM OF ITS POLICY AND THE WHOLESALERS WERE LIKEWISE FREE TO
REFUSE TO COMPLY AND THUS RISK BEING CUT OFF BY THE DEFENDANT". 

(4)  "EVERY VISIT MADE BY THE REPRESENTATIVES TO THE RETAILERS AND
WHOLESALERS WAS, TO EACH OF THEM, SEPARATE AND APART FROM ALL OTHERS". 

(5)  "THE EVIDENCE IS CLEAR THAT BOTH WHOLESALERS AND RETAILERS
VALUED (PARKE DAVIS') BUSINESS SO HIGHLY THAT THEY ACCEDED TO ITS
POLICY". 

(6)  "THERE WAS NO COERCION BY DEFENDANT AND NO AGREEMENT WITH
WHOLESALER OR RETAILER CO-CONSPIRATORS AS ALLEGED IN THE COMPLAINT." 

(7)  AS TO THE GOVERNMENT'S CONTENTION THAT PROOF OF THE ALLEGED
CONSPIRACY "IS IMPLICIT IN (1) DEFENDANT'S CALLING THE ATTENTION OF
BOTH RETAILERS AND WHOLESALERS TO ITS POLICY, AND (2) THE DISTRIBUTORS'
ACQUIESCENCE TO THE POLICY  ...  THE COURT CANNOT AGREE TO SUCH A
NEBULOUS DEDUCTION FROM THE RECORD BEFORE IT." 

ON THESE PREMISES THE DISTRICT COURT CONCLUDED:  "CLEARLY, THE
ACTIONS OF DEFENDANT WERE PROPERLY UNILATERAL AND SANCTIONED BY LAW
UNDER THE DOCTRINE LAID DOWN IN THE CASE OF UNITED STATES V. COLGATE &
CO., 250 U.S. 300  ...  ." 

THE COURT APPEARS TO RECOGNIZE THAT AS THE COLGATE DOCTRINE WAS
ORIGINALLY UNDERSTOOD, THE DISTRICT COURT'S FINDINGS WOULD REQUIRE
AFFIRMANCE OF ITS JUDGMENT HERE.  IT IS SAID, HOWEVER, THAT REVERSAL IS
REQUIRED BECAUSE FEDERAL TRADE COMM'N V. BEECH-NUT PACKING CO., 257
U.S. 441, AND UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707,
SUBSEQUENTLY "NARROWLY LIMITED" THE COLGATE RULE.   THE CLAIM IS THAT
WHEREAS PRIOR TO BEECH-NUT IT WAS CONSIDERED THAT, FAIR TRADE LAWS
APART, RESALE PRICE MAINTENANCE CAME WITHIN THE BAN OF THE SHERMAN ACT
ONLY IF IT WAS BROUGHT ABOUT BY EXPRESS OR IMPLIED AGREEMENT BETWEEN
THE PARTIES - WHICH THE COURT SAYS MEANT "CONTRACTUAL ARRANGEMENTS" -
BEECH-NUT, WHICH WAS CARRIED FORWARD BY BAUSCH & LOMB, LATER
ESTABLISHED THAT SUCH AGREEMENTS OR CONTRACTUAL ARRANGEMENTS NEED NOT
BE SHOWN.  RECOGNIZING THAT SECS. 1 AND 3 OF THE SHERMAN ACT EXPLICITLY
REQUIRE A "CONTRACT, COMBINATION  ...  OR CONSPIRACY," THE COURT SAYS
THIS REQUIREMENT IS SATISFIED BY CONDUCT WHICH FALLS SHORT OF EXPRESS
OR IMPLIED AGREEMENT, IF IT GOES BEYOND THE SELLER'S MERE ANNOUNCEMENT
OF TERMS AND HIS REFUSAL TO DEAL WITH THOSE WHO WILL NOT COMPLY WITH
THEM.  CONCLUDING THAT THE DISTRICT COURT IN THE PRESENT CASE
MISTAKENLY PROCEEDED SOLELY ON THE "AGREEMENT" VIEW OF COLGATE, IT IS
THEN SAID THAT ITS FINDINGS OF FACT ARE NOT BINDING ON US BECAUSE THEY
WERE BASED ON AN ERRONEOUS LEGAL STANDARD, AND THAT THEREFORE "RULE 52
HAS NO APPLICATION HERE."  (FN3)    I THINK THIS REASONING NOT ONLY
MISCONCEIVES THE BEECH-NUT AND BAUSCH & LOMB CASES, BUT ALSO MISTAKES
THE PREMISES ON WHICH THE DISTRICT COURT DECIDED THIS CASE, AND ITS
ACTUAL FINDINGS OF FACT. 

FIRST.  I CANNOT READ BEECH-NUT OR BAUSCH & LOMB AS INTRODUCING A NEW
NARROWING CONCEPT INTO THE COLGATE DOCTRINE.  UNTIL TODAY I HAD NOT
SUPPOSED THAT ANY INFORMED ANTITRUST PRACTITIONER OR JUDGE WOULD HAVE
HAD TO AWAIT BEECH-NUT TO KNOW THAT THE CONCERTED ACTION PROSCRIBED BY
THE SHERMAN ACT NEED NOT AMOUNT TO A CONTRACTUAL AGREEMENT.  BUT
NEITHER DO I THINK IT WOULD HAVE BEEN SUPPOSED THAT THE SHERMAN ACT
DOES NOT REQUIRE CONCERTED ACTION IN SOME FORM.  IN BEECH-NUT ITSELF
THE COURT STATED THE RULE TO BE THAT A SELLER MAY NOT RESTRAIN TRADE
"BY CONTRACTS OR COMBINATIONS, EXPRESS OR IMPLIED," AND THERE FOUND
SUPPRESSION OF COMPETITION "BY METHODS IN WHICH THE COMPANY SECURES THE
COOPERATION OF ITS DISTRIBUTORS AND CUSTOMERS, WHICH ARE QUITE AS
EFFECTUAL AS AGREEMENTS EXPRESS OR IMPLIED INTENDED TO ACCOMPLISH THE
SAME PURPOSE."  257 U.S., AT 453, 455.  IT IS OBVIOUS THAT THE
"METHODS" THUS REFERRED TO WERE THE "COOPERATIVE METHODS" WHICH THE
FEDERAL TRADE COMMISSION HAD FOUND TO EXIST, FOR THE COURT EXPRESSLY
LIMITED THE COMMISSION'S ORDER TO THE GRANTING OF RELIEF AGAINST SUCH
METHODS.  ID., 455-456.  FAR FROM ANNOUNCING THAT NO CONCERTED ACTION
NEED BE SHOWN, THE COURT ACCEPTED THE COMMISSION'S FACTUAL
DETERMINATION THAT SUCH ACTION DID EXIST. 

SIMILARLY, IN BAUSCH & LOMB, THE DISTRICT COURT HAD FOUND THAT SOFT
LITE HAD ENTERED INTO "AGREEMENTS WITH WHOLESALE CUSTOMERS" TO FIX
PRICES AND BOYCOTT UNLICENSED RETAILERS.  321 U.S., AT 717.  THIS COURT
HELD THAT THE FACTS "ALL AMPLY SUPPORT, INDEED REQUIRE, THE INFERENCE
OF THE TRIAL COURT THAT A CONSPIRACY TO MAINTAIN PRICES DOWN THE
DISTRIBUTION SYSTEM EXISTED BETWEEN THE WHOLESALERS AND SOFT-LITE." 
ID., 720.  THE COURT REITERATED THAT RESALE PRICE MAINTENANCE COULD NOT
BE ACHIEVED "BY AGREEMENT, EXPRESS OR IMPLIED."  ID., 721.  IN
REJECTING THE APPLICABILITY OF THE COLGATE DOCTRINE, IT SAID THAT NONE
OF THE CASES APPLYING THE DOCTRINE "INVOLVE, AS THE PRESENT CASE DOES,
AN AGREEMENT BETWEEN THE SELLER AND PURCHASER TO MAINTAIN RESALE
PRICES."  IBID.  IT JUSTIFIED THE FINDING OF CONCERTED ACTION ON THE
GROUND THAT "THE WHOLESALERS ACCEPTED SOFT-LITE'S PROFFER OF A PLAN OF
DISTRIBUTION BY COOPERATING IN PRICES, LIMITATION OF SALES TO AND
APPROVAL OF RETAIL LICENSEES."  ID., 723. 

THE RESULTS IN BEECH-NUT AND BAUSCH & LOMB, AS IN ALL SHERMAN ACT
CASES, TURNED ON THE APPLICATION OF ESTABLISHED STANDARDS OF CONCERTED
ACTION TO THE FULL SWEEP OF THE PARTICULAR FACTS IN THOSE CASES, AND
NOT UPON ANY NEW MEANING GIVEN TO THE WORDS "CONTRACT, COMBINATION  ...
OR CONSPIRACY."  THE COURT NOW SAYS THAT THE SELLER RUNS AFOUL OF THE
SHERMAN ACT WHEN HE GOES BEYOND MERE ANNOUNCEMENT OF HIS POLICY AND
REFUSAL TO SELL, NOT BECAUSE THE BARE ANNOUNCEMENT AND REFUSAL FALL
OUTSIDE THE STATUTORY PHRASE, BUT BECAUSE ANY ADDITIONAL STEP REMOVES A
"COUNTERVAILING CONSIDERATION" IN FAVOR OF PERMITTING A SELLER TO
CHOOSE HIS CUSTOMERS.  BUT WE ARE LEFT WHOLLY IN THE DARK AS TO WHAT
THE PURPORTED NEW STANDARD IS FOR ESTABLISHING A "CONTRACT, COMBINATION
...  OR CONSPIRACY." 

SECOND. THE COURT IS MISTAKEN IN ATTRIBUTING TO THE DISTRICT COURT
THE LIMITED VIEW THAT PARKE DAVIS' ACTIVITIES SHOULD, UNDER COLGATE, BE
UPHELD UNLESS THEY INVOLVED SOME EXPRESS OR IMPLIED "CONTRACTUAL
ARRANGEMENT" WITH WHOLESALERS OR RETAILERS.  THE GOVERNMENT'S COMPLAINT
SPECIFICALLY CHARGED A "COMBINATION AND CONSPIRACY" BETWEEN PARKE DAVIS
AND ITS WHOLESALE AND RETAIL CUSTOMERS IN THE AREAS INVOLVED,
COMPRISING A "CONTINUING AGREEMENT, UNDERSTANDING AND CONCERT OF
ACTION" IN THE FOUR ASPECTS ALREADY NOTED.  ANTE, P. 50.  IN ITS 31
DETAILED FINDINGS OF FACT THE DISTRICT COURT REPEATEDLY EMPHASIZED THAT
PARKE DAVIS DID NOT HAVE AN "AGREEMENT OR UNDERSTANDING OF ANY KIND"
WITH ITS DISTRIBUTORS, AND IT CONCLUDED THAT THE EVIDENCE AS A WHOLE
DID NOT SUPPORT THE GOVERNMENT'S ALLEGATIONS.  IT DETERMINED WITH
RESPECT TO EACH OF THE FOUR FACETS OF THE ALLEGED CONSPIRACY THAT
"THERE WAS NO COERCION" AND THAT "PARKE, DAVIS DID NOT COMBINE,
CONSPIRE OR ENTER INTO AN AGREEMENT, UNDERSTANDING OR CONCERT OF
ACTION" WITH THE WHOLESALERS, RETAILERS, OR ANYONE ELSE.  I CANNOT
DETECT IN THE RECORD ANY INDICATION THAT THE DISTRICT COURT IN MAKING
THESE FINDINGS APPLIED ANYTHING OTHER THAN THE STANDARD WHICH HAS
ALWAYS BEEN UNDERSTOOD TO GOVERN PROSECUTIONS BASED ON SECS. 1 AND 3 OF
THE SHERMAN ACT. 

THIRD.  BEARING DOWN HEAVILY ON THE STATEMENT IN BEECH-NUT THAT THE
CONDUCT THERE INVOLVED SHOWED MORE THAN "THE SIMPLE REFUSAL TO SELL,"
257 U.S., AT 454 (SEE ALSO BAUSCH & LOMB, SUPRA, AT 722), THE COURT
FINDS THAT PARKE DAVIS' CONDUCT EXCEEDED THE PERMISSIBLE LIMITS OF
COLGATE IN TWO RESPECTS.  THE FIRST IS THAT PARKE DAVIS ANNOUNCED THAT
IT WOULD, AND DID, CUT OFF WHOLESALERS WHO CONTINUED TO SELL TO PRICE
CUTTING RETAILERS.  THE SECOND IS THAT THE COMPANY IN AT LEAST ONE
INSTANCE REPORTED ITS TALKS WITH ONE OR MORE RETAILERS TO OTHER
RETAILERS; THAT IN "THIS MANNER PARKE DAVIS SOUGHT ASSURANCES OF
COMPLIANCE AND GOT THEM"; AND THAT IT "WAS ONLY BY ACTIVELY BRINGING
ABOUT SUBSTANTIAL UNANIMITY AMONG THE COMPETITORS THAT PARKE DAVIS WAS
ABLE TO GAIN ADHERENCE TO ITS POLICY." 

THERE ARE TWO DIFFICULTIES WITH THE COURT'S ANALYSIS ON THESE
SCORES.  THE FIRST IS THE FINDINGS OF THE DISTRICT COURT.  AS TO
REFUSALS TO SELL TO WHOLESALERS, THE LOWER COURT FOUND THAT SUCH
CONDUCT DID NOT INVOLVE ANY CONCERT OF ACTION, BUT WAS WHOLLY
UNILATERAL ON PARKE DAVIS' PART.  AND I CANNOT SEE HOW SUCH UNILATERAL
ACTION, PERMISSIBLE IN ITSELF, BECOMES ANY LESS UNILATERAL BECAUSE IT
IS TAKEN SIMULTANEOUSLY WITH SIMILAR UNILATERAL ACTION AT THE RETAIL
LEVEL.  AS TO THE OTHER RESPECT IN WHICH THE COURT HOLDS PARKE DAVIS'
CONDUCT WAS ILLEGAL, THE DISTRICT COURT FOUND THAT THE COMPANY DID NOT
MAKE "THE ENFORCEMENT OF ITS POLICIES AS TO ANY ONE WHOLESALER OR
RETAILER DEPENDENT UPON THE ACTION OF ANY OTHER WHOLESALER OR
RETAILER."  AND IT FURTHER STATED THAT THE "EVIDENCE IS CLEAR THAT BOTH
WHOLESALERS AND RETAILERS VALUED DEFENDANT'S BUSINESS SO HIGHLY THAT
THEY ACCEDED TO ITS POLICY," AND THAT SUCH ACQUIESCENCE WAS NOT BROUGHT
ABOUT BY "COERCION" OR "AGREEMENT."  EVEN IF THIS WERE NOT TRUE, SO
THAT CONCERTED ACTION AMONG THE RETAILERS AT THE "HORIZONTAL" LEVEL
MIGHT BE INFERRED, AS THE COURT INDICATES, UNDER THE PRINCIPLES OF
INTERSTATE CIRCUIT, INC., V. UNITED STATES, 306 U.S. 208, I DO NOT SEE
HOW THAT ITSELF WOULD JUSTIFY AN INFERENCE THAT CONCERTED ACTION AT THE
"VERTICAL" LEVEL EXISTED BETWEEN PARKE DAVIS AND THE RETAILERS OR
WHOLESALERS. 

THE SECOND DIFFICULTY WITH THE COURT'S ANALYSIS IS THAT EVEN
REVIEWING THE DISTRICT COURT'S FINDINGS ONLY AS A MATTER OF LAW, AS THE
COURT PURPORTS TO DO, THE CASES DO NOT JUSTIFY OVERTURNING THE LOWER
COURT'S RESULTING CONCLUSIONS.  BEECH-NUT DID NOT SAY THAT REFUSALS TO
SELL TO WHOLESALERS WHO PERSISTED IN SELLING TO CUT-PRICE RETAILERS -
CONDUCT WHICH WAS PRESENT IN THAT CASE (257 U.S., AT 448) - WAS A PER
SE INFRACTION OF THE COLGATE RULE, BUT ONLY THAT IT WAS OFFENSIVE IF IT
WAS THE RESULT OF COOPERATIVE GROUP ACTION.  WHILE THE COURT IN BEECH
NUT AND BAUSCH & LOMB INFERRED FROM THE AGGRESSIVE, WIDESPREAD, HIGHLY
ORGANIZED, AND SUCCESSFUL MERCHANDISING PROGRAMS INVOLVED THERE THAT
SUCH CONCERTED ACTION EXISTED IN THOSE CASES, THE DEFENSIVE, LIMITED,
UNORGANIZED, AND UNSUCCESSFUL EFFORT OF PARKE DAVIS TO MAINTAIN ITS
RESALE PRICE POLICY (FN4) DOES NOT JUSTIFY OUR DISREGARDING THE
DISTRICT COURT'S FINDING TO THE CONTRARY IN THIS CASE.  (FN5) 

IN LIGHT OF THE WHOLE HISTORY OF THE COLGATE DOCTRINE, IT IS SURELY
THIS COURT, AND NOT THE DISTRICT COURT, THAT HAS PROCEEDED ON ERRONEOUS
PREMISES IN DECIDING THIS CASE.  UNLESS THERE IS TO BE ATTRIBUTED TO
THE COURT A PURPOSE TO OVERTURN THE FINDINGS OF FACT OF THE DISTRICT
COURT - SOMETHING WHICH ITS OPINION NOT ONLY EXPRESSLY DISCLAIMS DOING,
BUT WHICH WOULD ALSO BE IN PLAIN DEFIANCE OF THE FEDERAL RULES OF CIVIL
PROCEDURE, RULE 52(A), AND PRINCIPLES ANNOUNCED IN PAST CASES (SEE,
E.G., UNITED STATES V. YELLOW CAB CO., 338 U.S. 338, 341-342;
INTERNATIONAL BOXING CLUB OF NEW YORK, INC., V. UNITED STATES, 358 U.S.
242, 252) - I THINK THAT WHAT THE COURT HAS REALLY DONE HERE IS TO
THROW THE COLGATE DOCTRINE INTO DISCARD. 

TO BE SURE, THE GOVERNMENT HAS EXPLICITLY STATED THAT IT DOES NOT ASK
US TO OVERRULE COLGATE, AND THE COURT PROFESSES NOT TO DO SO.  BUT
CONTRARY TO THE LONG UNDERSTANDING OF BENCH AND BAR, THE COURT TREATS
COLGATE AS TURNING NOT ON THE ABSENCE OF THE CONCERTED ACTION
EXPLICITLY REQUIRED BY SECS. 1 AND 3 OF THE SHERMAN ACT, BUT UPON THE
COURT'S NOTION OF "COUNTERVAILING" SOCIAL POLICIES.  I CAN REGARD THE
COURT'S PROFESSION AS NO MORE THAN A BOW TO THE FACT THAT COLGATE,
DECIDED MORE THAN 40 YEARS AGO, HAS BECOME PART OF THE ECONOMIC REGIME
OF THE COUNTRY UPON WHICH THE COMMERCIAL COMMUNITY AND THE LAWYERS WHO
ADVISE IT HAVE JUSTIFIABLY RELIED. 

IF THE PRINCIPLE FOR WHICH COLGATE STANDS IS TO BE REVERSED, IT IS,
AS THE GOVERNMENT'S POSITION PLAINLY INDICATES, SOMETHING THAT SHOULD
BE LEFT TO THE CONGRESS.  IT IS SURELY THE EMPTIEST OF FORMALISMS TO
PROFESS RESPECT FOR COLGATE AND EVISCERATE IT IN APPLICATION. 

I WOULD AFFIRM. 

FN1  THESE ARE THE "RESTRAINT OF TRADE," NOT THE "MONOPOLY,"
PROVISIONS OF THE SHERMAN ACT.  SEE NOTE 1 OF THE COURT'S OPINION. 

FN2  THOSE "AUTHORIZED BY LAW TO FILL OR DISPENSE PRESCRIPTIONS." 

FN3  RULE 52(A), FED. RULES CIV. PROC. PROVIDES IN RELEVANT PART:
"FINDINGS OF FACT SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, AND
DUE REGARD SHALL BE GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO
JUDGE OF THE CREDIBILITY OF THE WITNESSES." 

FN4  THE DISTRICT COURT FOUND, AMONG OTHER THINGS, THAT THE EFFORTS
OF PARKE DAVIS IN THE DISTRICT OF COLUMBIA AND VIRGINIA CAME ABOUT ONLY
AFTER SOME OF ITS COMPETITORS HAD ENGAGED IN DAMAGING LOCAL "DEEP PRICE
CUTTING" ON PARKE DAVIS PRODUCTS (FDG.  12); THAT PARKE DAVIS' SALES IN
THOSE AREAS CONSTITUTED LESS THAN 5% OF THE TOTAL PHARMACEUTICAL SALES
THEREIN (FDG.  3); THAT THESE EFFORTS FOLLOWED THE LEGAL ADVICE
PREVIOUSLY GIVEN BY THE COMPANY'S COUNSEL (FDG.  12); THAT PARKE DAVIS
DID NOT HAVE "ANY REGULARIZED OR SYSTEMATIC MACHINERY FOR MAINTAINING
ITS SUGGESTED MINIMUM PRICES AS TO EITHER RETAILERS OR WHOLESALERS"
(FDG.  10); THAT THE ENTIRE EPISODE LASTED ONLY FROM JULY TO THE FALL
OF 1956, WHEN THE COMPANY "IN GOOD FAITH" ABANDONED ALL FURTHER SUCH
EFFORTS (FDGS.  12, 27); AND THAT SINCE THAT TIME RETAILERS IN THESE
AREAS "HAVE CONTINUOUSLY SOLD AND ADVERTISED PARKE, DAVIS PRODUCTS AT
CUT PRICES, AND HAVE BEEN ABLE TO OBTAIN THOSE PRODUCTS FROM BOTH THE
WHOLESALERS AND/OR PARKE, DAVIS ITSELF."  (FDG.  27.) 

FN5  IT MAY BE OBSERVED THAT THE FACTS FOUND BY THE DISTRICT COURT
MILITATE MORE STRONGLY AGAINST VIOLATION OF THE SHERMAN ACT THAN THOSE
WHICH FORMED THE BASIS OF THE CHARGE HELD ERRONEOUS BY THIS COURT IN
CUDAHY, 256 U.S., AT 210-211.  ALTHOUGH THE COURT NOW REPUDIATES WHAT
WAS SAID IN CUDAHY IN THIS RESPECT, I SUBMIT THAT THERE IS NOTHING IN
BEECH-NUT, BAUSCH & LOMB, OR ANY OTHER CASE IN THIS COURT WHICH
JUSTIFIES THIS. 
..END :
























UNITED STATES V. THOMAS 362 U.S. 58 


NO. 667.  ARGUED FEBRUARY 23-24, 1960.  - DECIDED FEBRUARY 29, 1960.  -
STAY VACATED AND DISTRICT COURT'S JUDGMENT AFFIRMED AS TO RESPONDENT. 
REPORTED BELOW:  180 F. SUPP. 10. 


UNDER AUTHORITY OF R.S. SEC. 2004, AS AMENDED BY THE CIVIL RIGHTS ACT
OF 1957, THE ATTORNEY GENERAL BROUGHT A CIVIL ACTION ON BEHALF OF THE
UNITED STATES IN A UNITED STATES DISTRICT COURT TO ENJOIN CERTAIN
INDIVIDUALS FROM CHALLENGING, ON A RACIALLY DISCRIMINATORY BASIS, THE
RIGHT OF CERTAIN NEGRO CITIZENS TO REMAIN ON THE REGISTRATION ROLLS OF
A LOUISIANA PARISH AS QUALIFIED VOTERS AND TO ENJOIN RESPONDENT, THE
OFFICAL REGISTRAR OF VOTERS, FROM GIVING EFFECT TO SUCH RACIALLY
DISCRIMINATORY CHALLENGES AND REMOVING THEIR NAMES FROM THE ROLLS.  THE
DISTRICT COURT DENIED DEFENDANTS' MOTION TO DISMISS THE COMPLAINT;
FOUND THAT THE CHALLENGES WERE "MASSIVELY DISCRIMINATORY IN PURPOSE AND
EFFECT" AND IN VIOLATION OF THE FIFTEENTH AMENDMENT AND OF 42 U.S.C.
SEC. 1971(A); ENJOINED THE INDIVIDUAL DEFENDANTS FROM MAKING FURTHER
RACIALLY DISCRIMINATORY CHALLENGES; ENJOINED RESPONDENT FROM GIVING
LEGAL EFFECT TO ANY OF SAID CHALLENGES; AND ORDERED RESPONDENT TO
RESTORE TO THE REGISTRATION ROLLS THOSE SO ILLEGALLY REMOVED.  UPON
APPEAL BY RESPONDENT, THE COURT OF APPEALS GRANTED A STAY OF THE
INJUNCTION PENDING APPEAL.  THE SOLICITOR GENERAL THEN APPLIED TO THIS
COURT TO VACATE THE STAY AND FOR A WRIT OF CERTIORARI TO REVIEW THE
JUDGMENT OF THE DISTRICT COURT.  HELD:  CERTIORARI IS GRANTED, AND,
UPON THE OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE
DISTRICT COURT AND THE DECISION OF THIS COURT TODAY IN UNITED STATES V.
RAINES, ANTE, P. 17, THE STAY IS VACATED AND THE JUDGMENT OF THE
DISTRICT COURT AS TO RESPONDENT IS AFFIRMED.  P. 59. 

UNITED STATES V. THOMAS, REGISTRAR OF VOTERS OF WASHINGTON PARISH,
LOUISIANA, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

PURSUANT TO ITS ORDER OF JANUARY 26, 1960, 361 U.S. 950, THE COURT
HAS BEFORE IT (1) THE APPLICATION OF THE UNITED STATES FOR AN ORDER
VACATING THE ORDER OF THE COURT OF APPEALS, DATED JANUARY 21, 1960,
STAYING THE JUDGMENT OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
LOUISIANA, NEW ORLEANS DIVISION, DATED JANUARY 11, 1960; AND (2) THE
PETITION OF THE UNITED STATES FOR A WRIT OF CERTIORARI TO THE COURT OF
APPEALS TO REVIEW THE JUDGMENT OF THE DISTRICT COURT AS TO THE
RESPONDENT, CURTIS M. THOMAS, REGISTRAR OF VOTERS, WASHINGTON PARISH,
LOUISIANA.  HAVING CONSIDERED THE BRIEFS AND ORAL ARGUMENTS SUBMITTED
BY BOTH SIDES, THE COURT MAKES THE FOLLOWING DISPOSITION OF THESE
MATTERS: 

THE PETITION FOR CERTIORARI IS GRANTED.  UPON THE OPINION, FINDINGS
OF FACT, AND CONCLUSIONS OF LAW OF THE DISTRICT COURT AND THE DECISION
OF THIS COURT RENDERED TODAY IN NO. 64, UNITED STATES V. RAINES, ANTE,
P. 17, THE AFORESAID STAY ORDER OF THE COURT OF APPEALS IS VACATED, AND
THE JUDGMENT OF THE DISTRICT COURT AS TO THE RESPONDENT THOMAS IS
AFFIRMED.  IT IS SO ORDERED. 
..END :

















PHILLIPS CHEMICAL CO. V. DUMAS INDEPENDENT SCHOOL DISTRICT 361 U.S. 376 



NO. 40.  ARGUED NOVEMBER 17-18, 1959 - DECIDED FEBRUARY 23, 1960 - 159
TEX. - , 316 S.W.2D 382, REVERSED. 


UNDER ART. 5248 OF THE REVISED CIVIL STATUTES OF TEXAS, AS AMENDED IN
1950, WHICH PERTAINS TO TAXATION OF PRIVATE USERS OF PROPERTY OF THE
UNITED STATES, A TEXAS SCHOOL DISTRICT ASSESSED AGAINST APPELLANT A TAX
MEASURED BY THE FULL VALUE OF REAL PROPERTY OWNED BY THE UNITED STATES
BUT LEASED TO APPELLANT FOR USE IN ITS PRIVATE MANUFACTURING BUSINESS,
UNDER A LEASE SUBJECT TO TERMINATION AT THE OPTION OF THE UNITED STATES
IN THE EVENT OF A NATIONAL EMERGENCY OR A SALE OF THE PROPERTY.  THE
TEXAS SUPREME COURT CONSTRUED ART. 5248 AS AUTHORIZING THIS ASSESSMENT
AGAINST APPELLANT; BUT IT HAD CONSTRUED ART. 7173, WHICH GOVERNS
TAXATION OF PRIVATE LESSEES OF REAL PROPERTY OWNED BY THE STATE AND ITS
POLITICAL SUBDIVISIONS, AS NOT AUTHORIZING TAXATION OF A LESSEE UNDER A
LEASE SUBJECT TO TERMINATION AT THE LESSOR'S OPTION IN THE EVENT OF A
SALE.  HELD:  AS CONSTRUED AND APPLIED IN THIS CASE, ART. 5248
DISCRIMINATES UNCONSTITUTIONALLY AGAINST THE UNITED STATES AND ITS
LESSEES, AND THE TAX LEVIED AGAINST APPELLANT IS INVALID.  PP. 377
387. 

(A)  SINCE TEXAS LAW AUTHORIZES TAXATION OF LESSEES OF FEDERAL
PROPERTY BUT NOT LESSEES OF PROPERTY OF THE STATE OR ONE OF ITS
POLITICAL SUBDIVISIONS, WHEN THE LEASES ARE SUBJECT TO TERMINATION AT
THE OPTION OF THE LESSORS, IT DISCRIMINATES AGAINST THE UNITED STATES
AND ITS LESSEES.  PP. 379-382. 

(B)  SUCH DISCRIMINATION BETWEEN LESSEES OF FEDERAL PROPERTY AND
LESSEES OF STATE PROPERTY IS NOT JUSTIFIED BY ANY SIGNIFICANT
DIFFERENCE BETWEEN THEM.  UNITED STATES V. CITY OF DETROIT, 355 U.S.
466, DISTINGUISHED.  PP. 383-387. 

PHILLIPS CHEMICAL CO. V. DUMAS INDEPENDENT SCHOOL DISTRICT. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE, AMONG OTHER ISSUES WHICH WE NEED NOT REACH, WE ARE
ASKED TO DECIDE WHETHER A TEXAS TAX STATUTE, ARTICLE 5248 OF THE
REVISED CIVIL STATUTES OF TEXAS, AS AMENDED IN 1950, (FN1)
DISCRIMINATES UNCONSTITUTIONALLY AGAINST THE UNITED STATES AND THOSE
WITH WHOM IT DEALS.  WE HOLD THAT IT DOES. 

APPELLANT, PHILLIPS CHEMICAL COMPANY, ENGAGES IN THE COMMERCIAL
MANUFACTURE OF AMMONIA ON VALUABLE INDUSTRIAL PROPERTY LEASED FROM THE
FEDERAL GOVERNMENT IN MOORE COUNTY, TEXAS.  THE LEASE, EXECUTED IN 1948
PURSUANT TO THE MILITARY LEASING ACT OF 1947, 61 STAT. 774, IS FOR A
PRIMARY TERM OF 15 YEARS AND CALLS FOR AN ANNUAL RENTAL OF OVER
$1,000,000.  HOWEVER, IT RESERVES TO THE GOVERNMENT THE RIGHT TO
TERMINATE UPON 30 DAYS' NOTICE IN THE EVENT OF A NATIONAL EMERGENCY AND
UPON 90 DAYS' NOTICE IN THE EVENT OF A SALE OF THE PROPERTY. 

IN 1954, APPELLEE, DUMAS INDEPENDENT SCHOOL DISTRICT, ASSESSED A TAX
AGAINST PHILLIPS FOR THE YEARS 1949 THROUGH 1954.  THE TAX, MEASURED BY
THE ESTIMATED FULL VALUE OF THE LEASED PREMISES, WAS ASSESSED IN
ACCORDANCE WITH THE DISTRICT'S ORDINARY AD VALOREM TAX PROCEDURES. 

WHEN THE DISTRICT ASSESSED THE TAX, PHILLIPS COMMENCED THE PRESENT
ACTION IN THE STATE COURTS TO ENJOIN ITS COLLECTION.  PHILLIPS
CONTESTED BOTH THE DISTRICT'S RIGHT TO LEVY THE TAX AND THE VALUATION
FIGURE UPON WHICH THE AMOUNT OF THE TAX WAS CALCULATED.  THE LATTER
ISSUE WAS SEVERED BY THE TRIAL COURT FOR LATER DECISION AND IS NOT
INVOLVED IN THIS APPEAL.  THE LOWER STATE COURTS DENIED RELIEF FOR THE
YEARS SUBSEQUENT TO THE EFFECTIVE DATE OF THE 1950 AMENDMENT TO ARTICLE
5248, AND ON WRIT OF ERROR THE SUPREME COURT OF TEXAS, BY A DIVIDED
COURT, AFFIRMED.  159 TEX. - , 316 S.W.2D 382.  PHILLIPS APPEALED FROM
THE DECISION, AND WE NOTED PROBABLE JURISDICTION.  359 U.S. 987. 

THE DISTRICT'S POWER TO LEVY THE TAX WAS FOUND TO LIE IN AMENDED
ARTICLE 5248.  BEFORE 1950, ARTICLE 5248 PROVIDED A GENERAL TAX
EXEMPTION FOR LAND AND IMPROVEMENTS "HELD, OWNED, USED AND OCCUPIED BY
THE UNITED STATES" FOR PUBLIC PURPOSES.  IN 1950, THE TEXAS LEGISLATURE
ADDED TWO PROVISIONS TO ARTICLE 5248, ONE PROVIDING FOR TAXATION OF
PRIVATELY OWNED PERSONAL PROPERTY LOCATED ON FEDERAL LANDS, AND THE
OTHER READING AS FOLLOWS: 

"PROVIDED, FURTHER, THAT ANY PORTION OF SAID LANDS AND IMPROVEMENTS
WHICH IS USED AND OCCUPIED BY ANY PERSON, FIRM, ASSOCIATION OF PERSONS
OR CORPORATION IN ITS PRIVATE CAPACITY, OR WHICH IS BEING USED OR
OCCUPIED IN THE CONDUCT OF ANY PRIVATE BUSINESS OR ENTERPRISE, SHALL BE
SUBJECT TO TAXATION BY THIS STATE AND ITS POLITICAL SUBDIVISIONS." 

AS CONSTRUED BY A MAJORITY OF THE TEXAS COURT, THIS PROVISION IS AN
AFFIRMATIVE GRANT OF AUTHORITY TO THE STATE AND ITS POLITICAL
SUBDIVISIONS TO TAX PRIVATE USERS OF GOVERNMENT REALTY.  WHILE THE
SUBJECT OF THE TAX IS THE RIGHT TO THE USE OF THE PROPERTY, I.E., THE
LEASEHOLD, ITS MEASURE IS APPARENTLY THE VALUE OF THE FEE.  (FN2)  THE
CONSTITUTIONALITY OF THE PROVISION, THUS CONSTRUED, DEPENDED UPON THE
COURT'S INTERPRETATION OF OUR DECISIONS IN THE MICHIGAN CASES TWO TERMS
AGO, WHERE WE HELD THAT A STATE MIGHT LEVY A TAX ON THE PRIVATE USE OF
GOVERNMENT PROPERTY, MEASURED BY THE FULL VALUE OF THE PROPERTY. 
UNITED STATES V. CITY OF DETROIT, 355 U.S. 466; UNITED STATES V.
TOWNSHIP OF MUSKEGON, 355 U.S. 484; CF. CITY OF DETROIT V. MURRAY
CORP., 355 U.S. 489. 

HOWEVER, THREE MEMBERS OF THE TEXAS COURT, JOINED BY A FOURTH ON
PETITION FOR REHEARING, WERE OF THE OPINION THAT UNDER THE MAJORITY'S
CONSTRUCTION THE STATUTE DISCRIMINATES UNCONSTITUTIONALLY AGAINST THE
UNITED STATES AND ITS LESSEES.  THEIR CONCLUSION RESTED ON THE FACT
THAT ARTICLE 7173 OF THE REVISED CIVIL STATUTES OF TEXAS (FN3) IMPOSES
A DISTINCTLY LESSER BURDEN ON SIMILARLY SITUATED LESSEES OF EXEMPT
PROPERTY OWNED BY THE STATE AND ITS POLITICAL SUBDIVISIONS.  WE AGREE
WITH THE DISSENTERS' CONCLUSION. 

ARTICLE 7173 IS THE ONLY TEXAS STATUTE OTHER THAN ARTICLE 5248 WHICH
AUTHORIZES A TAX ON LESSEES.  IT PROVIDES IN PART THAT: 

"PROPERTY HELD UNDER A LEASE FOR A TERM OF THREE YEARS OR MORE, OR
HELD UNDER A CONTRACT FOR THE PURPCHASE THEREOF, BELONGING TO THIS
STATE, OR THAT IS EXEMPT BY LAW FROM TAXATION IN THE HANDS OF THE OWNER
THEREOF, SHALL BE CONSIDERED FOR ALL THE PURPOSES OF TAXATION, AS THE
PROPERTY OF THE PERSON SO HOLDING THE SAME, EXCEPT AS OTHERWISE
SPECIALLY PROVIDED BY LAW." 

AS CONSTRUED BY THE TEXAS COURTS, ARTICLE 7173 IS LESS BURDENSOME
THAN ARTICLE 5248 IN THREE RESPECTS.  FIRST, THE MEASURE OF A TAX UNDER
ARTICLE 7173 IS NOT THE FULL VALUE OF LEASED TAX-EXEMPT PREMISES, AS IT
APPARENTLY IS UNDER ARTICLE 5248, BUT ONLY THE PRICE THE TAXABLE
LEASEHOLD WOULD BRING AT A FAIR VOLUNTARY SALE FOR CASH - THE VALUE OF
THE LEASEHOLD ITSELF.  (FN4)  SECOND, BY ITS VERY TERMS, ARTICLE 7173
IMPOSES NO TAX ON A LESSEE WHOSE LEASE IS FOR A TERM OF LESS THAN THREE
YEARS.  FINALLY, AND CRUCIAL HERE, A LEASE FOR THREE YEARS OR LONGER
BUT SUBJECT - LIKE PHILLIPS' - TO TERMINATION AT THE LESSOR'S OPTION IN
THE EVENT OF A SALE IS NOT "A LEASE FOR A TERM OF THREE YEARS OF MORE"
FOR PURPOSES OF ARTICLES 7173.  TRAMMELL V. FAUGHT, 74 TEX. 557, 12
S.W. 317.  THEREFORE, BECAUSE OF THE TERMINATION PROVISIONS IN ITS
LEASE, PHILLIPS COULD NOT BE TAXED UNDER ARTICLE 7173. 

ALTHOUGH ARTICLE 7173 IS, IN TERMS, APPLICABLE TO ALL LESSEES WHO
HOLD TAX-EXEMPT PROPERTY UNDER A LEASE FOR A TERM OF THREE YEARS OR
MORE, IT APPEARS THAT ONLY LESSEES OF PUBLIC PROPERTY FALL WITHIN THIS
CLASS IN TEXAS.  TAX EXEMPTIONS FOR REAL PROPERTY OWNED BY PRIVATE
ORGANIZATIONS - CHARITIES, CHURCHES, AND SIMILAR ENTITIES - DO NOT
SURVIVE A LEASE TO A BUSINESS LESSEE.  (FN5)  THE FULL VALUE OF THE
LEASED PROPERTY BECOMES TAXABLE TO THE OWNER, AND THE LESSEE'S INDIRECT
BURDEN CONSEQUENTLY IS AS HEAVY AS THE BURDEN IMPOSED DIRECTLY ON
FEDERAL LESSEES BY ARTICLE 5248.  UNDER THESE CIRCUMSTANCES, THERE
APPEARS TO BE NO DISCRIMINATION BETWEEN THE GOVERNMENT'S LESSEES AND
LESSEES OF PRIVATE PROPERTY. 

HOWEVER, ALL LESSEES OF EXEMPT PUBLIC LANDS WOULD APPEAR TO BELONG TO
THE CLASS DEFINED BY ARTICLE 7173.  (FN6)  IN VIEW OF THE FACT THAT
LESSEES IN THIS CLASS ARE TAXED BECAUSE THEY USE EXEMPT PROPERTY FOR A
NONEXEMPT PURPOSE, THEY APPEAR TO BE SIMILARLY SITUATED AND PRESUMABLY
SHOULD BE TAXED ALIKE.  YET BY THE AMENDMENT OF ARTICLE 5248, THE TEXAS
LEGISLATURE SEGREGATED FEDERAL LESSEES AND IMPOSED ON THEM A HEAVIER
TAX BURDEN THAN IS IMPOSED ON THE OTHER MEMBERS OF THE CLASS BY ARTICLE
7173.  IN THIS CASE THE RESULTING DIFFERENCE IN TAX, ATTENDANT UPON THE
IDENTITY OF PHILLIPS' LESSOR, IS EXTREME; THE STATE AND THE SCHOOL
DISTRICT CONCEDE THAT PHILLIPS WOULD NOT BE TAXED AT ALL IF ITS LESSOR
WERE THE STATE OR ONE OF ITS POLITICAL SUBDIVISIONS INSTEAD OF THE
FEDERAL GOVERNMENT.  THE DISCRIMINATION AGAINST THE UNITED STATES AND
ITS LESSEE SEEMS APPARENT.  THE QUESTION, HOWEVER, IS WHETHER IT CAN BE
JUSTIFIED. 

PHILLIPS ARGUES THAT BECAUSE ARTICLE 5248 APPLIES ONLY TO PRIVATE
USERS OF FEDERAL PROPERTY, IT IS INVALID FOR THAT REASON, WITHOUT
MORE.  FOR THIS ARGUMENT, IT RELIES ON MILLER V. MILWAUKEE, 272 U.S.
713; SEE ALSO MACALLEN CO. V. MASSACHUSETTS, 279 U.S. 620.  MACALLEN
MIGHT BE DEEMED TO SUPPORT THE ARGUMENT, BUT TO THE EXTENT THAT IT
DOES, IT NO LONGER HAS PRECEDENTIAL VALUE.  SEE UNITED STATES V. CITY
OF DETROIT, SUPRA, AT 472, N. 2.  MILLER WAS A RATHER DIFFERENT CASE. 
IN MILLER IT WAS THOUGHT THAT A STATE HAD ATTEMPTED INDIRECTLY TO LEVY
A TAX ON EXEMPT INCOME FROM GOVERNMENT BONDS.  PHILLIPS' USE OF THE
GOVERNMENT'S PROPERTY, BY WAY OF CONTRAST, IS NOT EXEMPT.  10 U.S.C.
SEC.  2667(E); (FN7) UNITED STATES V. CITY OF DETROIT, SUPRA.  IT IS
TRUE THAT IN MILLER THE OSTENSIBLE INCIDENCE OF THE TAX - SHAREHOLDERS'
INCOME FROM CORPORATE DIVIDENDS - WAS NOT ITSELF EXEMPT, BUT THE
MEASURE OF THE TAX EXCLUDED ALL INCOME NOT ATTRIBUTABLE TO FEDERAL
BONDS OWNED BY THE CORPORATION; THAT WAS THE DEFECT IN THE TAX.  SEE
PACIFIC CO. V. JOHNSON, 285 U.S. 480, 493.  THEREFORE, IN PRACTICAL
OPERATION, THE TAX WAS EITHER AN INDIRECT TAX ON THE EXEMPT INCOME, OR
A DISCRIMINATORY TAX ON SHAREHOLDERS OF CORPORATIONS WHICH, AS
BONDHOLDERS, DEALT WITH THE GOVERNMENT.   THUS, IF MILLER HAS ANY
RELEVANCE HERE, IT IS ONLY TO THE EXTENT THAT IT MAY SUPPORT THE
PROPOSITION THAT A STATE MAY NOT SINGLE OUT THOSE WHO DEAL WITH THE
GOVERNMENT, IN ONE CAPACITY OR ANOTHER, FOR A TAX BURDEN NOT IMPOSED ON
OTHERS SIMILARLY SITUATED. 

A DETERMINATION THAT ARTICLE 5248 IS INVALID, UNDER THIS TEST, CANNOT
REST MERELY ON AN EXAMINATION OF THAT ARTICLE.  IT DOES NOT OPERATE IN
A VACUUM.  FIRST, IT IS NECESSARY TO DETERMINE HOW OTHER TAXPAYERS
SIMILARLY SITUATED ARE TREATED.  SUCH A DETERMINATION REQUIRES "AN
EXAMINATION OF THE WHOLE TAX STRUCTURE OF THE STATE."  CF. TRADESMENS
NATIONAL BANK V. OKLAHOMA TAX COMM'N, 309 U.S. 560, 568.  ALTHOUGH
MACALLEN MAY HAVE DEPARTED SOMEWHAT FROM THIS RULE, NOTHING IN MILLER,
AT LEAST AS IT HAS BEEN INTERPRETED IN LATER CASES, SHOULD BE READ AS
INDICATING THAT LESS IS REQUIRED.   CF. EDUCATIONAL FILMS CORP. V.
WARD, 282 U.S. 379; PACIFIC CO. V. JOHNSON, 285 U.S. 480. 

THEREFORE, WE MUST FOCUS ON THE NATURE OF THE CLASSIFICATION ERECTED
BY ARTICLES 5248 AND 7173.  THE IMPOSITION OF A HEAVIER TAX BURDEN ON
LESSEES OF FEDERAL PROPERTY THAN IS IMPOSED ON LESSEES OF OTHER EXEMPT
PUBLIC PROPERTY MUST BE JUSTIFIED BY SIGNIFICANT DIFFERENCES BETWEEN
THE TWO CLASSES.  THE SCHOOL DISTRICT ADDRESSES THIS PROBLEM,
ESSENTIALLY, AS ONE OF EQUAL PROTECTION, AND ARGUES THAT WE MUST UPHOLD
THE CLASSIFICATION, THOUGH APPARENTLY DISCRIMINATORY, "IF ANY STATE OF
FACTS REASONABLY CAN BE CONCEIVED THAT WOULD SUSTAIN IT."  ALLIED
STORES V. BOWERS, 358 U.S. 522, 528.  THE ARGUMENT, IN THIS CONTEXT,
TURNS ON THREE SUPPOSED DIFFERENCES BETWEEN THE TWO CLASSES.  FIRST,
THE SCHOOL DISTRICT AND THE STATE SAY THAT THE STATE CAN COLLECT IN
RENT WHAT IT LOSES IN TAXES FROM ITS OWN LESSEES - SOMETHING IT CANNOT
DO, OF COURSE, WITH THE FEDERAL GOVERNMENT'S LESSEES.  SECOND, THEY
ARGUE THAT THE STATE MAY LEGITIMATELY FOSTER ITS OWN INTERESTS BY
ADOPTING MEASURES WHICH FACILITATE THE LEASING OF ITS PROPERTY. 
FINALLY, THEY CLAIM THAT BECAUSE OF ITS ALLEGEDLY GREATER MAGNITUDE,
FEDERAL LEASING OF EXEMPT LAND HAS A MORE SERIOUS IMPACT ON THE
FINANCES AND OPERATIONS OF LOCAL GOVERNMENT THAN DOES THE STATE'S OWN
LEASING ACTIVITIES. 

NONE OF THESE CONSIDERATIONS PROVIDES SOLID SUPPORT FOR THE
CLASSIFICATION.  IT IS UNDOUBTEDLY TRUE, AS A GENERAL PROPOSITION, THAT
THE STATE IS FREE TO ADOPT MEASURES REASONABLY DESIGNED TO FACILITATE
THE LEASING OF ITS OWN LAND.  BUT IF THE INCENTIVE WHICH IT PROVIDES IS
IN THE FORM OF A REDUCTION IN TAX WHICH DISCRIMINATES AGAINST THE
GOVERNMENT'S LESSEES, THE QUESTION REMAINS, IS IT PERMISSIBLE? 

LIKEWISE, IT IS NOT ENOUGH TO SAY THAT THE STATE CAN MAKE UP IN RENT
WHAT IT LOSES IN TAXES FROM ITS LESSEES.  WHAT THE STATE'S POLITICAL
SUBDIVISIONS LOSE IN TAXES FROM THE STATE'S LESSEES CANNOT BE MADE UP
IN THIS FASHION.  OTHER LOCAL TAXPAYERS - INCLUDING THE GOVERNMENT'S
LESSEES - MUST MAKE UP THE DIFFERENCE. 

NOR IS THE CLASSIFICATION HERE SUPPORTED BY THE ALLEGEDLY SERIOUS
IMPACT OF FEDERAL LEASING, AS CONTRASTED WITH STATE LEASING, ON THE
OPERATIONS OF LOCAL GOVERNMENT.  IT IS CLAIMED, IN THIS RESPECT, THAT
NEITHER THE STATE NOR ITS SUBDIVISIONS LEASE PROPERTY EXACTLY
COMPARABLE - IN SIZE, VALUE, OR NUMBER OF EMPLOYEES INVOLVED - TO THE
ORDNANCE WORKS LEASED BY PHILLIPS FROM THE GOVERNMENT.  HOWEVER, THE
CLASSIFICATION ERECTED BY ARTICLE 5248 IS NOT BASED ON SUCH FACTORS. 
ARTICLE 5248 IMPOSES ITS BURDENS ON ALL LESSEES OF FEDERAL PROPERTY. 
IT IS CONCEDED THAT THE STATE AND ITS SUBDIVISIONS LEASE VALUABLE
PROPERTY TO COMMERCIAL AND BUSINESS ENTERPRISES, AS DOES THE FEDERAL
GOVERNMENT.  WAREHOUSE FACILITIES ARE AN EXAMPLE.  (FN8)  BUT THE
IDENTITY OF THE EXEMPT LESSOR BEARS NO RELATION TO THE IMPACT ON LOCAL
GOVERNMENT OF OTHERWISE IDENTICAL LEASING ACTIVITIES.  STILL, THE
VARIANT TAX CONSEQUENCES TO THE LESSEE, UNDER ARTICLE 7173 ON THE ONE
HAND AND ARTICLE 5248 ON THE OTHER, DIFFER WIDELY. 

IT IS TRUE THAT PERFECTION IS BY NO MEANS REQUIRED UNDER THE EQUAL
PROTECTION TEST OF PERMISSIBLE CLASSIFICATION.  BUT WE HAVE MADE IT
CLEAR, IN THE EQUAL PROTECTION CASES, THAT OUR DECISIONS IN THAT FIELD
ARE NOT NECESSARILY CONTROLLING WHERE PROBLEMS OF INTERGOVERNMENTAL TAX
IMMUNITY ARE INVOLVED.  IN ALLIED STORES V. BOWERS, SUPRA, FOR EXAMPLE,
WE NOTED THAT THE STATE WAS "DEALING WITH ITS PROPER DOMESTIC CONCERNS,
AND NOT TRENCHING UPON THE PREROGATIVES OF THE NATIONAL GOVERNMENT." 
358 U.S., AT 526.  WHEN SUCH IS THE CASE, THE STATE'S POWER TO CLASSIFY
IS, INDEED, EXTREMELY BROAD, AND ITS DISCRETION IS LIMITED ONLY BY
CONSTITUTIONAL RIGHTS AND BY THE DOCTRINE THAT A CLASSIFICATION MAY NOT
BE PALPABLY ARBITRARY.  ID., AT 526-528.  BUT WHERE TAXATION OF THE
PRIVATE USE OF THE GOVERNMENT'S PROPERTY IS CONCERNED, THE GOVERNMENT'S
INTERESTS MUST BE WEIGHED IN THE BALANCE.  ACCORDINGLY, IT DOES NOT
SEEM TOO MUCH TO REQUIRE THAT THE STATE TREAT THOSE WHO DEAL WITH THE
GOVERNMENT AS WELL AS IT TREATS THOSE WITH WHOM IT DEALS ITSELF. 
COMPARE ESSO STANDARD OIL CO. V. EVANS, 345 U.S. 495, 500. 
NEVERTHELESS, IT IS CLAIMED THAT THE CLASSIFICATION HERE IS SUPPORTED
BY OUR DECISION IN UNITED STATES V. CITY OF DETROIT, SUPRA, BECAUSE OF
THE ASSERTEDLY SIMILAR NATURE OF THE CLASSIFICATION CREATED BY THE
STATUTE INVOLVED IN THAT CASE.  (FN9)  THE MICHIGAN STATUTE, ALTHOUGH
APPLICABLE GENERALLY TO LESSEES OF EXEMPT PROPERTY, (FN10) CONTAINED AN
EXCEPTION FOR PROPERTY OWNED BY STATE-SUPPORTED EDUCATIONAL
INSTITUTIONS.  APPELLEE'S ARGUMENT, ESSENTIALLY, IS THAT THE EXEMPTION
OF LESSEES OF SCHOOL-OWNED PROPERTY FROM THE MICHIGAN STATUTE SUPPORTS
THE IMPOSITION HERE OF A HEAVIER TAX ON FEDERAL LESSEES THAN IS IMPOSED
ON LESSEES OF OTHER EXEMPT PUBLIC PROPERTY, IN GENERAL. 

THIS ARGUMENT MISCONCEIVES THE SCOPE OF THE MICHIGAN DECISIONS.  IN
THOSE CASES WE DID NOT DECIDE - IN FACT, WE WERE NOT ASKED TO DECIDE -
WHETHER THE EXEMPTION OF SCHOOL-OWNED PROPERTY RENDERED THE STATUTE
DISCRIMINATORY.  NEITHER THE GOVERNMENT NOR ITS LESSEES, TO WHOM THE
STATUTE WAS APPLICABLE, CLAIMED DISCRIMINATION OF CHARACTER.  (FN11)
SINCE THE ISSUE WAS NOT RAISED, THE BASIS FOR THE SEPARATE
CLASSIFICATION OF PROPERTY OWNED BY SCHOOLS WAS NOT EXAMINED. 
THEREFORE, THE MICHIGAN CASES SHED NO LIGHT ON THE CLASSIFICATION
PROBLEM HERE.  (FN12) 

NONE OF THESE ARGUMENTS, URGED IN SUPPORT OF THE TEXAS
CLASSIFICATION, SEEMS ADEQUATE TO JUSTIFY WHAT APPEARS TO BE SO
SUBSTANTIAL AND TRANSPARENT A DISCRIMINATION AGAINST THE GOVERNMENT AND
ITS LESSEES.  HERE, PHILLIPS IS TAXED UNDER ARTICLE 5248 ON THE FULL
VALUE OF THE REAL PROPERTY WHICH IT LEASES FROM THE FEDERAL GOVERNMENT,
WHILE BUSINESSES WITH SIMILAR LEASES, USING EXEMPT PROPERTY OWNED BY
THE STATE AND ITS POLITICAL SUBDIVISIONS, ARE NOT TAXED ON THEIR
LEASEHOLDS AT ALL.  THE DIFFERENCES BETWEEN THE TWO CLASSES, AT LEAST
WHEN THE GOVERNMENT'S INTERESTS ARE WEIGHED IN THE BALANCE, SEEMS TOO
IMPALPABLE TO WARRANT SUCH A GROSS DIFFERENTIATION.  IT FOLLOWS THAT
ARTICLE 5248, AS APPLIED IN THIS CASE, DISCRIMINATES UNCONSTITUTIONALLY
AGAINST THE UNITED STATES AND ITS LESSEE.  AS WE HAD OCCASION TO STATE,
QUITE RECENTLY, IT STILL REMAINS TRUE, AS IT HAS FROM THE TIME OF
M'CULLOCH V. MARYLAND, 4 WHEAT.  316, THAT A STATE TAX MAY NOT
DISCRIMINATE AGAINST THE GOVERNMENT OR THOSE WITH WHOM IT DEALS.  SEE
UNITED STATES V. CITY OF DETROIT, SUPRA, AT 473.  THEREFORE, THIS TAX
MAY NOT BE EXACTED.  REVERSED. 

FN1  VERNON'S TEX. REV. CIV. STAT., 1948 (SUPP. 1950), ART. 5248. 
THE AMENDATORY ACT IS TEX. LAWS, 1ST C.S. 1950, C. 37. 

FN2  THE COURT OF CIVIL APPEALS THOUGHT THAT THE TAX SHOULD BE
LIMITED TO THE VALUE OF PHILLIPS' LEASEHOLD, 307 S.W.2D 605, 609, WHILE
THE TEXAS SUPREME COURT EXPRESSED THE VIEW INDICATED ABOVE.  HOWEVER,
AS THE STATE POINTS OUT, THESE STATEMENTS IN THE OPINIONS OF THE TWO
APPELLATE COURTS WERE APPARENTLY DICTA, FOR THE TRIAL COURT DECIDED
ONLY THE BARE QUESTION OF TAXABILITY, RESERVING FOR LATER DECISION ON
THE MEASURE AND AMOUNT OF THE TAX.  THE MEASURE OF THE TAX, HOWEVER, IS
NOT PRESENTLY CRITICAL, FOR, AS WILL BE INDICATED, THE LEVY OF ANY TAX
IN THE CIRCUMSTANCES OF THIS CASE APPEARS TO DISCRIMINATE AGAINST THE
GOVERNMENT AND PHILLIPS. 

FN3  VERNON'S TEX. REV. CIV. STAT., 1948, ART. 7173. 

FN4  VERNON'S TEX. REV. CIV. STAT., 1948, ART. 7174; STATE V. TAYLOR
& KELLEY, 72 TEX.  297, 12 S.W. 176; CF. DAUGHTERY V. THOMPSON, 71 TEX.
192, 9 S.W. 99; TAYLOR V. ROBINSON, 72 TEX. 364, 10 S.W. 245. 

FN5  TEX. CONST., ART. VIII, SEC. 2; MORRIS V. MASONS, 68 TEX. 698, 5
S.W. 519; STATE V. SETTEGAST, 254 S.W. 925 (TEX. COMM. APP.); CF.
HOUSTON V. SCOTTISH RITE BENEV.  ASSN., 111 TEX. 191, 230 S.W. 978;
MARKHAM HOSPITAL V. LONGVIEW, 191 S.W.2D 695 (TEX. CIV. APP.). 

FN6  ALTHOUGH PUBLIC LANDS IN GENERAL ARE EXEMPT FROM STATE AND LOCAL
TAXATION IN TEXAS, TEX. CONST., ART. XI, SEC. 9; VERNON'S TEX. REV.
CIV. STAT., 1948, ART. 7150(4), THERE ARE CERTAIN CONDITIONS AND
EXCEPTIONS TO THE EXEMPTION.  THE EXEMPTION DOES NOT SURVICE A LEASE IF
THE "PUBLIC PURPOSE" OF THE PROPERTY IS ABANDONED.  ABILENE V. STATE,
113 S.W.2D 631 (TEX. CIV. APP.); STATE V. BEAUMONT, 161 S.W.2D 344
(TEX. CIV. APP.).  THE SCHOOL DISTRICT CONCEDES THAT THIS CONDITION IS
MET IN THIS CASE BECAUSE THE LEASE RESERVES TO THE UNITED STATES THE
RIGHT TO TERMINATE IN THE EVENT OF A NATIONAL EMERGENCY.  EXCEPTIONS TO
THE GENERAL EXEMPTION OF LAND OWNED BY THE STATE AND ITS POLITICAL
SUBDIVISIONS ARE CREATED BY STATUTES EXPRESSLY PROVIDING FOR THE
TAXATION OF CERTAIN TYPES OF PUBLIC PROPERTY BY SPECIFIC TAXING
AUTHORITIES.  E.G., SCHOOL-OWNED AGRICULTURAL AND GRAZING LAND IS
SUBJECT TO LOCAL TAXATION, TEX. CONST., ART. VII, SEC. 6A; VERNON'S
TEX. REV.  CIV. STAT., 1948, ART. 7150A; STATE FARMS ON WHICH CONVICT
LABOR IS EMPLOYED ARE SUBJECT TO COUNTY AND SCHOOL TAXATION, VERNON'S
TEX. REV. CIV. STAT., 1948, ART. 7150(4); PRISON PROPERTY IS SUBJECT TO
SCHOOL TAXATION, VERNON'S TEX. REV. CIV. STAT., 1948, ARTS. 7150(17)
AND (18); AND LAND WHICH FORMS A PART OF THE ENDOWMENT OF THE
UNIVERSITY OF TEXAS IS SUBJECT TO COUNTY TAXATION, VERNON'S TEX. REV.
CIV. STAT., 1948, ART. 7150C.  ALTHOUGH THESE EXCEPTIONS TO THE GENERAL
NONTAXABILITY OF PUBLIC LANDS REDUCE THE EXTENT OF THE DISCRIMINATION
CREATED BY ARTICLE 5248, THEY OBVIOUSLY DO NOT ELIMINATE IT.

FN7  DURING THE YEARS IN QUESTION, THE LEASEHOLD WAS TAXABLE UNDER
SEC. 6 OF THE MILITARY LEASING ACT OF 1947, 61 STAT. 774, THE
PREDECESSOR OF THE PROVISION NOW CODIFIED AS 10 U.S.C. SEC. 2667(E). 
PURSUANT TO THE PROVISIONS OF THIS ACT, SHALL BE MADE SUBJECT TO STATE
OR LOCAL TAXATION." 

FN8  SEE, E.G., OP. TEX. ATTY. GEN., NO. WW-531, DEC. 9, 1958. 

FN9  MICH. ACTS 1953, NO. 189, NOW COMPILED IN 6 MICH. STAT. ANN.,
1950 (1957 CUM. SUPP.), SECS 7.7(5) AND 7.7(6).  SEE UNITED STATES V.
CITY OF DETROIT, SUPRA, AT 467, N. 1. 

FN10  "UNDER MICHIGAN LAW THIS MEANS PERSONS WHO USE PROPERTY OWNED
BY THE FEDERAL GOVERNMENT, THE STATE, ITS POLITICAL SUBDIVISIONS,
CHURCHES, CHARITABLE ORGANIZATIONS AND A GREAT HOST OF OTHER
ENTITIES."  UNITED STATES V. CITY OF DETROIT, SUPRA, AT 473. 

FN11  IN ITS BRIEF, THE GOVERNMENT STATED THAT THE EXCEPTION WAS NOT
PERTINENT TO ITS ARGUMENT.  ITS DISCRIMINATION ARGUMENT RESTED ON THE
PROPOSITION THAT THE MICHIGAN STATUTE WAS, IN REALITY, "SPECIAL
LEGISLATION" DIRECTED AT GOVERNMENT PROPERTY.  THE GOVERNMENT ARGUED
THAT THIS PURPOSE WAS MANIFESTED BY THE FACT THAT THE STATUTE CONTAINED
AN EXCEPTION FOR CASES IN WHICH PAYMENTS HAD BEEN MADE BY THE UNITED
STATES "IN LIEU OF TAXES IN AMOUNTS EQUIVALENT TO TAXES WHICH MIGHT
OTHERWISE BE LAWFULLY ASSESSED."  IT WAS ARGUED THAT THE PURPOSE THUS
MANIFESTED WAS IMPROPER UNDER MACALLEN CO. V. MASSACHUSETTS, SUPRA.  WE
POINTED OUT, IN REJECTING THE ARGUMENT, THAT THE EXCEPTION TO THE TAX
RELIED ON BY THE GOVERNMENT IN THIS CONNECTION SERVED TO PROTECT IT
AGAINST THE POSSIBILITY OF A DOUBLE CONTRIBUTION TO THE REVENUES OF THE
STATE, AND THAT THE PRECEDENTIAL VALUE OF MACALLEN HAD BEEN
SUBSTANTIALLY IMPAIRED BY LATER DECISIONS.  SEE UNITED STATES V. CITY
OF DETROIT, SUPRA, AT 472, N. 2, 474, N. 6. 

FN12  ONLY ISSUES RAISED BY THE JURISDICTIONAL STATEMENT OR PETITION
FOR CERTIORARI, AS THE CASE MAY BE, ARE CONSIDERED BY THE COURT. 
SUPREME COURT RULES, 15, PAR. 1(C)(1), 23, PAR. 1(C). 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 
..END :


















ARNOLD V. BEN KANOWSKY, INC. 361 U.S. 388 


NO. 60.  ARGUED JANUARY 11, 1960 - DECIDED FEBRUARY 23, 1960 - 250 F.2D
47, 252 F.2D 787, REVERSED AND CAUSE REMANDED. 


PETITIONER SUED RESPONDENT UNDER SEC. 16(B) OF THE FAIR LABOR
STANDARDS ACT FOR PAYMENT OF OVERTIME WAGES CLAIMED UNDER SEC. 7. 
RESPONDENT CLAIMED EXEMPTION FROM THE ACT'S OVERTIME REQUIREMENTS AS A
"RETAIL OR SERVICE ESTABLISHMENT" UNDER SEC. 13(A)(2), AS AMENDED IN
1949.  RESPONDENT CONDUCTS AN INTERIOR DECORATING AND CUSTOM FURNITURE
BUSINESS, BUT ALSO FABRICATES ON THE SAME PREMISES PLASTIC AIRCRAFT
PARTS WHICH IT SELLS IN INTERSTATE COMMERCE TO MANUFACTURERS WHICH
INCORPORATE THEM INTO AIRCRAFT OR PARTS THEREOF WHICH THEY SELL TO
OTHERS.  SALES OF SUCH PLASTIC PARTS ACCOUNT FOR MORE THAN 25% OF
RESPONDENT'S ANNUAL SALES, AND RESPONDENT INTRODUCED NO EVIDENCE TO
PROVE THAT AT LEAST 75% OF ITS SALES WERE RECOGNIZED IN THE INDUSTRY AS
RETAIL.  HELD: RESPONDENT FAILED TO SATISFY THE REQUIREMENTS OF SEC. 13
AND IS NOT ENTITLED TO EXEMPTION THEREUNDER.  PP.  389-394. 

(A)  THAT RESPONDENT'S MANUFACTURE OF PLASTIC PARTS MAY BE CONSIDERED
A "SIDELINE" FROM RESPONDENT'S VIEWPOINT DOES NOT REMOVE PETITIONER
FROM COVERAGE UNDER THE FAIR LABOR STANDARDS ACT UNLESS RESPONDENT'S
ACTIVITIES FALL WITHIN THE SPECIFIC EXEMPTIONS ENUMERATED IN SEC. 13. 
P. 391. 

(B)  SINCE RESPONDENT, THROUGH ITS FABRICATION OF SUCH PLASTIC PARTS,
IS MAKING OR PROCESSING THE GOODS THAT IT SELLS, IT MUST COMPLY WITH
THE REQUIREMENTS OF SEC. 13(A)(4), AS WELL AS SEC. 13(A)(2), IN ORDER
TO BE EXEMPT.  PP. 392-393. 

(C)  RESPONDENT FAILED TO SATISFY THE REQUIREMENTS OF SEC. 13(A)(2),
BECAUSE SALES OF PLASTIC PARTS ACCOUNTED FOR MORE THAN 25% OF ITS
ANNUAL SALES, AND RESPONDENT INTRODUCED NO EVIDENCE TO PROVE THAT 75%
OF ITS SALES WERE RECOGNIZED IN THE INDUSTRY AS "RETAIL."  PP. 393
394. 

(D)  THE SALE OF PARTS TO BE INCORPORATED INTO AIRCRAFT THAT WERE TO
BE SOLD BY THE PURCHASERS OF SUCH PARTS WERE SALES FOR RESALE; AND,
SINCE SUCH SALES EXCEEDED 25% OF RESPONDENT'S TOTAL SALES, RESPONDENT
FAILED TO MEET THE REQUIREMENT OF SEC. 13(A)(2) THAT 75% OF ITS ANNUAL
SALES BE "NOT FOR RESALE."  P. 394. 

ARNOLD V. BEN KANOWSKY, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF
1938 EXEMPTING FROM WAGES-AND-HOURS COVERAGE CERTAIN RETAIL SALES AND
SERVICE ESTABLISHMENTS.  (FN1)  THE SUIT WAS BROUGHT BY PETITIONER
INDIVIDUALLY UNDER SEC. 16(B) OF THE ACT FOR PAYMENT OF OVERTIME WAGES
CLAIMED UNDER SEC. 7.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
REVERSED A DISTRICT COURT JUDGMENT FOR PETITIONER (FN2) AND WE GRANTED
CERTIORARI, 359 U.S. 983.  THE PROCEEDINGS IN THIS COURT ARE IN FORMA
PAUPERIS.  BOTH SIDES SUBMITTED ON THEIR BRIEFS, AND ORAL ARGUMENT WAS
HEARD ONLY FROM THE REPRESENTATIVE OF THE SECRETARY OF LABOR APPEARING
AS AMICUS CURIAE. 

RESPONDENT CONDUCTS AN INTERIOR DECORATING AND CUSTOM FURNITURE
BUSINESS IN DALLAS, TEXAS.  ON THE SAME PREMISES HE FABRICATES AIRCRAFT
PARTS FROM PHENOLIC, A CLOTH-IMPREGNATED PHENOL RESIN.  THIS PLASTIC IS
WIDELY USED IN AIRCRAFT AND AUTOMOTIVE PARTS AND CAN BE MACHINED ON THE
WOODWORKING EQUIPMENT RESPONDENT HAS AVAILABLE IN HIS FURNITURE SHOP. 
PETITIONER WAS EMPLOYED BY RESPONDENT FROM OCTOBER 17, 1954, THROUGH
SEPTEMBER 2, 1955, PRIMARILY IN THE FABRICATION OF PHENOLIC PARTS. 

AT THE TRIAL, A REPRESENTATIVE OF CHANCE VOUGHT AIRCRAFT, INC.,
TESTIFIED THAT HIS COMPANY PURCHASED OVER $34,000 WORTH OF PHENOLIC
PARTS FROM RESPONDENT IN 1955, AND THAT THESE PARTS WERE USED IN
AIRCRAFT AND MISSILES SOLD TO THE UNITED STATES NAVY.  A REPRESENTATIVE
OF TEMCO AIRCRAFT COMPANY TESTIFIED THAT IT PURCHASED ABOUT $2,000
WORTH OF PHENOLIC PARTS ANNUALLY FROM KANOWSKY FOR USE IN MANUFACTURING
AIRCRAFT SUBASSEMBLIES FOR THE AIR FORCE OR FOR PRIME CONTRACTORS, MANY
OF WHOM WERE LOCATED OUTSIDE THE STATE.  RESPONDENT ALSO SHIPPED A
SMALL AMOUNT OF SHEET PHENOLIC DIRECTLY OUTSIDE THE STATE. 

DURING THE YEAR BEGINNING OCTOBER 1, 1954, RESPONDENT'S SALES TOTALED
$99,117.52, AND ITS SALES OF PHENOLIC AND PHENOLIC PARTS WERE
$39,751.71, OR ALMOST EXACTLY 40% OF ITS TOTAL SALES.  ITS SECRETARY
TREASURER ADMITTED THAT PHENOLIC AIRCRAFT PARTS ALONE ACCOUNTED FOR AT
LEAST 25% OF THE COMPANY'S TOTAL SALES.  RESPONDENT INTRODUCED NO
EVIDENCE CONCERNING THE AMOUNT OR NATURE OF SALES OF PHENOLIC IN FORMS
OTHER THAN AIRCRAFT PARTS.  NOTWITHSTANDING THE ADMITTED PERCENTAGE OF
ITS TOTAL SALES ATTRIBUTABLE TO PHENOLIC PARTS, RESPONDENT CLAIMED
EXEMPTION FROM THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT BECAUSE
OF THE RETAIL CHARACTER OF ITS BUSINESS. 

THE DISTRICT COURT FOUND THAT PETITIONER WAS ENGAGED IN THE
PRODUCTION OF GOODS FOR COMMERCE WITHIN THE MEANING OF THE ACT, AND
UPON RESPONDENT'S ADMISSION THAT PETITIONER HAD BEEN PAID FOR OVERTIME
HOURS ONLY AT STRAIGHT TIME RATES, ENTERED JUDGMENT FOR PETITIONER FOR
UNPAID OVERTIME COMPENSATION PLUS AN ATTORNEY'S FEE.  THE COURT OF
APPEALS REVERSED ON THE GROUND THAT RESPONDENT WAS EXEMPT FROM THE
ACT'S OVERTIME REQUIREMENTS UNDER SEC. 13(A)(2) AS A "RETAIL OR SERVICE
ESTABLISHMENT." 

WE BELIEVE THAT THE COURT OF APPEALS WAS IN ERROR AND MUST BE
REVERSED.  THE WORDING OF THE STATUTE, THE CLEAR LEGISLATIVE HISTORY,
AND THE DECISIONS OF THIS COURT REQUIRE THIS CONCLUSION. 

PETITIONER ADMITTEDLY IS ENGAGED IN THE MANUFACTURE OF PHENOLIC PARTS
FOR COMMERCE.  THAT THIS ACTIVITY MAY BE CONSIDERED A "SIDELINE" FROM
RESPONDENT'S VIEWPOINT DOES NOT REMOVE PETITIONER FROM COVERAGE UNDER
THE FAIR LABOR STANDARDS ACT UNLESS THE RESPONDENT'S ACTIVITIES FALL
WITHIN THE SPECIFIC EXEMPTIONS ENUMERATED IN SEC. 13 OF THE ACT.  AS
ORIGINALLY PASSED IN 1938, THE FAIR LABOR STANDARDS ACT EXEMPTED FROM
COVERAGE "ANY EMPLOYEE ENGAGED IN ANY RETAIL OR SERVICE ESTABLISHMENT
THE GREATER PART OF WHOSE SELLING OR SERVICING IS IN INTRASTATE
COMMERCE."  (FN3)  IN 1949 CONGRESS SUBSTITUTED A THREE-PART DEFINITION
FOR THIS PROVISION.  ANY EMPLOYEE EMPLOYED BY A RETAIL OR SERVICE
ESTABLISHMENT IS TO BE EXEMPT IF MORE THAN 50% OF THE ESTABLISHMENT'S
ANNUAL DOLLAR VOLUME OF SALES IS MADE WITHIN THE STATE, IF 75% OF ITS
ANNUAL SALES VOLUME IS NOT FOR RESALE, AND IF 75% OF ITS ANNUAL SALES
VOLUME IS RECOGNIZED WITHIN THE INDUSTRY AS RETAIL SALES. 

THIS COURT HAD OCCASION AT THE LAST TERM TO POINT OUT THAT THE 1949
REVISION DOES NOT REPRESENT A GENERAL BROADENING OF THE EXEMPTIONS
CONTAINED IN SEC. 13.  (FN4)  RATHER, CONGRESS "WAS ACTING IN
IMPLEMENTATION OF A SPECIFIC AND PARTICULARIZED PURPOSE" TO REPLACE THE
UNSATISFACTORY "BUSINESS USE" TEST, WHICH HAD DEVELOPED AROUND THE 1938
PROVISION, WITH A FORMULA THAT WOULD BE AT ONCE FLEXIBLE AND AT THE
SAME TIME PROVIDE CLEAR STATUTORY GUIDANCE TO THE ADMINISTRATOR. 
(FN5) 

WE HAVE HELD THAT THESE EXEMPTIONS ARE TO BE NARROWLY CONSTRUED
AGAINST THE EMPLOYERS SEEKING TO ASSERT THEM AND THEIR APPLICATION
LIMITED TO THOSE ESTABLISHMENTS PLAINLY AND UNMISTAKABLY WITHIN THEIR
TERMS AND SPIRIT.  (FN6)  THE THREE CONDITIONS OF SEC. 13(A)(2) ARE
EXPLICIT PREREQUISITES TO EXEMPTION, NOT MERELY SUGGESTED GUIDELINES
FOR JUDICIAL DETERMINATION OF THE EMPLOYER'S STATUS (FN7) 

WHILE SEC. 13(A)(2) CONTAINS THE REQUIREMENTS EVERY RETAIL
ESTABLISHMENT MUST SATISFY TO QUALIFY FOR EXEMPTION, A RETAILER
MANUFACTURER MUST SATISFY THE ADDITIONAL REQUIREMENTS OF SEC. 13(A)(4)
SINCE IT "MAKES OR PROCESSES" THE GOODS IT SELLS.  (FN8) 

TURNING TO THE FACTS OF THIS CASE, IT IS CLEAR THAT RESPONDENT,
THROUGH ITS FABRICATION OF PHENOLIC PARTS, IS "MAKING OR PROCESSING THE
GOODS THAT IT SELLS."  TO GAIN EXEMPTION IT THEREFORE MUST COMPLY WITH
THE CRITERIA OF SEC. 13(A)(2) AS THEY ARE INCORPORATED BY REFERENCE IN
SEC. 13(A)(4), AS WELL AS THE ADDITIONAL REQUIREMENTS OF SEC. 13(A)(4)
ITSELF.  IT IS CLEAR THAT RESPONDENT DOES NOT MEET AT LEAST TWO OF THE
THREE STANDARDS OF SEC. 13(A)(2) AS INCLUDED IN SEC. 13(A)(4). 

FIRST, SALES OF PHENOLIC PARTS ACCOUNT FOR MORE THAN 25% OF THE
RESPONDENT'S ANNUAL SALES VOLUME.  THE COURT BELOW ASSUMED THAT
RESPONDENT'S SALES WERE RECOGNIZED IN THE COMMUNITY AS RETAIL SALES
WITHOUT ANY EVIDENCE TO SUPPORT THE FACT.  THIS CONCLUSION WAS NOT
JUSTIFIED, SINCE IT IS CLEAR THAT CONGRESS INTENDED THAT "ANY EMPLOYER
WHO ASSERTS THAT HIS ESTABLISHMENT IS EXEMPT MUST ASSUME THE BURDEN OF
PROVING THAT AT LEAST 75 PERCENT OF HIS SALES ARE RECOGNIZED IN HIS
INDUSTRY AS RETAIL."  (FN9) 

SECOND, THE COURT OF APPEALS ASSUMED THAT THE SALES OF PHENOLIC AND
PHENOLIC PARTS WERE NOT FOR RESALE, BUT IN DOING SO, IT WAS IN ERROR. 
THE SALES OF PARTS TO ONE COMPANY ALONE FOR INCORPORATION IN AIRPLANES
AND MISSILES THAT WERE TO BE SOLD TO THE UNITED STATES NAVY EXCEEDED
25% OF THE TOTAL.  THESE SALES INDISPUTABLY WERE MADE WITH THE
EXPECTATION THAT THE PARTS WOULD BE INCORPORATED IN AIRCRAFT AND THAT
THE AIRCRAFT WOULD BE SOLD.  SUCH TRANSACTIONS ARE CLEARLY WITHIN THE
CONCEPT OF RESALE.  (FN10) 

SINCE RESPONDENT HAS NOT SUSTAINED ITS BURDEN OF PROVING THAT 75% OF
ITS ANNUAL SALES VOLUME IS NOT FOR RESALE AND IS RECOGNIZED AS BEING
RETAIL IN THE PARTICULAR INDUSTRY, WE NEED NOT REACH THE QUESTION
WHETHER THE ADDITIONAL STANDARDS OF SEC. 13(A)(4) ITSELF ARE MET. 
(FN11) 

WE HOLD THAT RESPONDENT HAS NOT SATISFIED THE REQUIREMENTS OF SEC. 13
AND IS NOT ENTITLED TO EXEMPTION THEREUNDER.  THE JUDGMENT OF THE COURT
OF APPEALS IS REVERSED; THE JUDGMENT OF THE DISTRICT COURT IS
REINSTATED; AND THE CAUSE IS REMANDED TO THE COURT FOR CONSIDERATION OF
THE PRAYER OF PETITIONER FOR FURTHER COUNSEL FEES IN ACCORDANCE WITH
THE PROVISION OF THE ACT.  IT IS SO ORDERED. 

FN1  29 U.S.C. SEC. 213(A), 63 STAT. 917, SEC. 13(A). 

"THE PROVISIONS OF SECTIONS 6 AND 7 SHALL NOT APPLY WITH RESPECT TO
...  (2) ANY EMPLOYEE EMPLOYED BY ANY RETAIL OR SERVICE ESTABLISHMENT,
MORE THAN 50 PER CENTUM OF WHICH ESTABLISHMENT'S ANNUAL DOLLAR VOLUME
OF SALES OF GOODS OR SERVICES IS MADE WITHIN THE STATE IN WHICH THE
ESTABLISHMENT IS LOCATED.  A 'RETAIL OR SERVICE ESTABLISHMENT' SHALL
MEAN AN ESTABLISHMENT 75 PER CENTUM OF WHOSE ANNUAL DOLLAR VOLUME OF
SALES OF GOODS OR SERVICES (OR OF BOTH) IS NOT FOR RESALE AND IS
RECOGNIZED AS RETAIL SALES OR SERVICES IN THE PARTICULAR INDUSTRY; ...
OR (4) ANY EMPLOYEE EMPLOYED BY AN ESTABLISHMENT WHICH QUALIFIES AS AN
EXEMPT RETAIL ESTABLISHMENT UNDER CLAUSE (2) OF THIS SUBSECTION AND IS
RECOGNIZED AS A RETAIL ESTABLISHMENT IN THE PARTICULAR INDUSTRY
NOTWITHSTANDING THAT SUCH ESTABLISHMENT MAKES OR PROCESSES AT THE
RETAIL ESTABLISHMENT THE GOODS THAT IT SELLS:  PROVIDED, THAT MORE THAN
85 PER CENTUM OF SUCH ESTABLISHMENT'S ANNUAL DOLLAR VOLUME OF SALES OF
GOODS SO MADE OR PROCESSED IS MADE WITHIN THE STATE IN WHICH THE
ESTABLISHMENT IS LOCATED;  ...  ." 

FN2  THE DECISION OF THE COURT OF APPEALS IS REPORTED AT 250 F.2D
47.  DENIAL OF REHEARING IS REPORTED AT 252 F.2D 787. 

FN3  52 STAT. 1060, 1067. 

FN4  MITCHELL V. KENTUCKY FINANCE CO., 359 U.S. 290, 294. 

FN5  ID., AT 293.  SEE ALSO THE STATEMENT MADE BY SENATOR HOLLAND,
MANAGER OF THE AMENDMENT, DURING THE DEBATE IN THE SENATE, 95 CONG.
REC. 12491; AND THE REMARKS OF REPRESENTATIVE LUCAS, WHO INTRODUCED THE
AMENDMENT IN THE HOUSE, 95 CONG. REC. 11116. 

FN6  MITCHELL V. KENTUCKY FINANCE CO., 359 U.S. 290, 295. 

FN7  SUCH CASES AS WHITE MOTOR CO. V. LITTLETON, 124 F.2D 92 (C.A.
5TH CIR. 1941), RELIED UPON BY THE FIFTH CIRCUIT IN ITS OPINION IN THIS
CASE AND DECIDED AT A TIME WHEN THERE WAS NO STATUTORY DEFINITION OF
"RETAIL OR SERVICE ESTABLISHMENT," NO LONGER CAN HAVE ANY VITALITY IN
VIEW OF THE 1949 AMENDMENTS.  THE EXTENT TO WHICH THE WHITE MOTOR CO.
DECISION RESTS ON THE ABSENCE OF A STATUTORY DEFINITION OF "RETAIL" IS
SHOWN IN 124 F.2D, AT 93. 

FN8  PRIOR TO THE 1949 AMENDMENTS TO THE ACT, THE WHOLE AREA OF
MANUFACTURING WAS EXCLUDED FROM THE RETAIL EXEMPTION.  IT HAD BEEN
REPEATEDLY HELD THAT ESTABLISHMENTS ENGAGED TO ANY EXTENT IN
MANUFACTURING OR PROCESSING ACTIVITIES COULD NOT QUALIFY FOR EXEMPTION
UNDER FORMER SEC. 13(A)(2).  E.G., GRANT V. BERGDORF & GOODMAN CO., 172
F.2D 109 (C.A.2D CIR. 1949); FRED WOLFERMAN, INC. V. GUSTAFSON, 169
F.2D 759 (C.A. 8TH CIR. 1948); WALLING V. GOLDBLATT BROS., 152 F.2D 475
(C.A. 7TH CIR. 1945); WALLING V. AMERICAN STORES CO., 133 F.2D 840
(C.A. 3D CIR. 1943); DAVIS V. GOODMAN LUMBER CO., 133 F.2D 52 (C.A. 4TH
CIR. 1943); COLLINS V. KIDD DAIRY & ICE CO., 132 F.2D 79 (C.A. 5TH CIR.
1942); SEE ROLAND ELECTICAL CO. V. WALLING, 326 U.S. 657, 666-678.  THE
ADMINISTRATOR'S INTERPRETATION COMPORTING WITH THIS VIEW IS TO BE FOUND
IN INTERP.  BULL.  NO. 6, AS REVISED AND REISSUED JUNE 16, 1941, 1942
WH MANUAL 326. 

THE LEGISLATIVE HISTORY OF THE AMENDMENTS, AS REFLECTED BY STATEMENTS
OF THE SPONSORS AND COMMITTEE REPORTS, CLEARLY EVIDENCES THAT SEC.
13(A)(2) AS AMENDED "DOES NOT APPLY TO ANY MANUFACTURING ACTIVITIES
SINCE ANY SUCH ACTIVITIES, WHEN CONDUCTED BY A RETAIL ESTABLISHMENT, IF
EXEMPT, ARE INTENDED TO BE EXEMPT UNDER SEC. 13(A)(4)."  STATEMENT OF
THE HOUSE CONFEREES, 95 CONG. REC. 14932; SEE ALSO THE STATEMENTS ON
THE FLOOR OF CONGRESS BY THE MANAGERS FOR THE AMENDMENT IN EACH HOUSE,
SENATOR HOLLAND AND REPRESENTATIVES LESINSKI AND LUCAS, 95 CONG. REC.
12495, 14942, 11216. 

FN9  REMARKS OF SENATOR HOLLAND, 95 CONG. REC. 12502; REMARKS OF
REPRESENTATIVE LUCAS, 95 CONG. REC. 11004, 11116; SEE ALSO THE
STATEMENT OF THE MAJORITY OF THE SENATE CONFEREES, 95 CONG. REC.
14877. 

FN10  SEE STATEMENT OF THE HOUSE CONFEREES, 95 CONG. REC. 14932;
STATEMENT OF MAJORITY OF SENATE CONFEREES, 95 CONG. REC. 14877; 29 CFR
SEC. 779.15(C)(SUPP.  1959); CF. MITCHELL V. SHERRY CORINE CORP., 264
F.2D 831, 834 (C.A. 4TH CIR. 1959).  AS THE CITED LEGISLATIVE MATERIALS
INDICATE, THE EXEMPTION FROM THE GENERAL "RESALE" RULE FOR RESIDENCE
AND FARM CONSTRUCTION REPAIR AND MAINTENANCE UNDER SEC. 3(N), 29 U.S.C.
SEC. 203(N), EVINCES AN INTENT TO CLASSIFY OTHER SALES FOR USE IN
ARTICLES TO BE SOLD AS "RESALE." 

FN11  THE EMPLOYEE HAVING SHOWN THAT THE NATURE OF HIS EMPLOYMENT
BRINGS HIM WITHIN THE COVERAGE OF THE ACT, THE NATURE OF THE
"ESTABLISHMENT" IN WHICH HE IS EMPLOYED WILL BE DRAWN INTO LITIGATION
ONLY IF THE EMPLOYER SEEKS AN EXEMPTION UNDER SEC. 13, IN WHICH EVENT
THE BURDEN OF PROVING THE NATURE OF THE ESTABLISHMENT IS ON THE
EMPLOYER. 

MR. JUSTICE WHITTAKER, DISSENTING. 

AND-HOUR PROVISIONS OF THAT ACT EMPLOYEES OF "ANY RETAIL OR SERVICE
ESTABLISHMENT," AS THERE DEFINED.  SEE NOTE 1 OF THE COURT'S OPINION. 
THEREFORE, THE ENTITY TO BE CONSIDERED IS THE "ESTABLISHMENT."  A
SINGLE EMPLOYER MAY CONDUCT TWO (OR MORE) "ESTABLISHMENTS," SIDE BY
SIDE OR EVEN UNDER THE SAME ROOF, ONE OF WHICH COULD BE A "RETAIL OR
SERVICE ESTABLISHMENT," AS DEFINED IN AND EXEMPTED BY SEC. 13(A), AND
THE OTHER NOT.   HERE, RESPONDENT APPEARS TO HAVE BEEN SEPARATELY
ENGAGED IN THREE ACTIVITIES:  (1) THE MANUFACTURE AND SALE OF PHENOLIC,
IN WHICH ENTERPRISE SEVERAL PERSONS - THE NUMBER IS NOT STATED IN THE
RECORD - WERE EMPLOYED, (2) AN INTERIOR DECORATING BUSINESS, COMMONLY
EMPLOYING FIVE PERSONS, AND (3) THE CUSTOM MANUFACTURE AND SALE OF
FURNITURE, EMPLOYING A SMALL, BUT VARYING, NUMBER OF EMPLOYEES.  DURING
PETITIONER'S EMPLOYMENT BY RESPONDENT - FROM OCTOBER 17, 1954, THROUGH
SEPTEMBER 2, 1955 - HE WORKED FOR A PERIOD IN ONE OF THESE ENTERPRISES
AND THEN IN ANOTHER, BUT, AS THE COURT SAYS, HE WORKED PRIMARILY IN THE
FABRICATION OF PHENOLIC PARTS.*  UPON RESPONDENT'S ADMISSION AT THE
TRIAL, THAT PETITIONER HAD BEEN PAID FOR OVERTIME HOURS WORKED ONLY AT
STRAIGHT TIME RATES, THE DISTRICT COURT, WITHOUT ANY EVIDENCE SHOWING
THE NUMBER OF HOURS WORKED IN THE ONE AS DISTINGUISHED FROM THE OTHER
OF THESE ENTERPRISES, ENTERED JUDGMENT FOR PETITIONER FOR OVERTIME
COMPENSATION FOR ALL OVERTIME HOURS WORKED BY PETITIONER, AND AN
ATTORNEY'S FEE.    *THE WITNESS KANOWSKY TESTIFIED:    "Q.  TO YOUR
KNOWLEDGE, WERE THERE A NUMBER OF WEEKS THAT HE DIDN'T DO ANY WORK ON
PHENOLIC AIRCRAFT PARTS AT ALL? 

"A.  THERE HAD TO BE, YES, SIR. 

"Q.  TO YOUR KNOWLEDGE, WERE THERE A NUMBER OF WEEKS IN WHICH HE DID
SEVENTY-FIVE PERCENT OR MORE OF HIS WORK ON FURNITURE AND THINGS OF
THAT NATURE? 

"A.  YES, SIR." 

THE WITNESS JUSTICE, EMPLOYED PRIMARILY IN THE INTERIOR DECORATING
ESTABLISHMENT, TESTIFIED: 

"Q.  ...  HOW ABOUT WHEN THEY WERE DOING THIS INTERIOR DECORATING JOB
DOWN TOWN? 

"A.  I BELIEVE HE WORKED DOWN TOWN PRACTICALLY ALL OF THE TIME. 

"Q.  WERE THERE WEEKS AT A TIME THAT YOU KNOW OF THAT SEVENTY-FIVE
PERCENT OF HIS WORK WAS DONE ON FURNITURE AND STUFF LIKE THAT AND THE
BALANCE ON PHENOLICS? 

"A.  YES, SIR." 

ALTHOUGH, AS THE COURT CORRECTLY SAYS, RESPONDENT, IN ITS PHENOLIC
ENTERPRISE, WAS ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE AND A
MAJOR PART OF THAT PRODUCTION WAS SOLD FOR RESALE AND, HENCE, THAT
ENTERPRISE WAS NOT A "RETAIL OR SERVICE ESTABLISHMENT," AS DEFINED IN
SEC. 13(A), IT APPEARS THAT ALL OF RESPONDENT'S INTERIOR DECORATING
SERVICES WERE RENDERED LOCALLY, AND THAT ALL OF THE CUSTOM FURNITURE
MANUFACTURING WAS DONE AND THE FURNITURE SOLD LOCALLY AND NOT FOR
RESALE.  AND, THEREFORE, IT WOULD APPEAR - AT LEAST THERE IS ROOM FOR A
FINDING - THAT RESPONDENT'S INTERIOR DECORATING AND CUSTOM FURNITURE
MANUFACTURING AND SELLING ENTERPRISES WERE "RETAIL OR SERVICE
ESTABLISHMENTS," AS DEFINED IN SEC. 13(A).  BUT, THERE IS NO FINDING BY
THE DISTRICT COURT THAT THESE THREE "ESTABLISHMENTS" OR IN ONLY ONE
"ESTABLISHMENT"; NOR IS THERE ANY FINDING AS TO WHAT PERCENTAGE OF THE
INTERIOR DECORATING SERVICES WERE RENDERED LOCALLY, OR WHAT PERCENTAGE
OF THE CUSTOM FURNITURE MANUFACTURING AND SELLING WAS DONE LOCALLY AND
NOT FOR RESALE. 

ONLY IF RESPONDENT'S THREE ENTERPRISES CONSTITUTED ONE
"ESTABLISHMENT" WOULD THERE BE SUPPORT IN THE RECORD FOR THE JUDGMENT,
AND, AS STATED, THERE IS NO FINDING TO THAT EFFECT.  THE ONLY ORAL
ARGUMENT MADE HERE WAS BY COUNSEL FOR THE DEPARTMENT OF LABOR, AS
AMICUS CURIAE.  ITS POSITION IS THAT, AS A MATTER OF LAW, RESPONDENT
OPERATED NO MORE THAN TWO "ESTABLISHMENTS"; THAT THE PHENOLIC
ENTERPRISE MIGHT BE ONE "ESTABLISHMENT," AND IT CLEARLY WAS NOT A
"RETAIL OR SERVICE ESTABLISHMENT" AS DEFINED IN SEC. 13(A)(I AGREE THAT
THIS IS SO); THAT THE INTERIOR DECORATING AND CUSTOM FURNITURE
MANUFACTURING AND SALES ENTERPRISES MIGHT BE ANOTHER "ESTABLISHMENT" -
WHY THESE TWO ENTERPRISES MIGHT NOT BE TWO "ESTABLISHMENTS" WAS NOT
EXPLICATED.  ITS COUNSEL THEN ARGUES THAT, BECAUSE SOME CUSTOM
MANUFACTURING OF FURNITURE WAS DONE IN THE LATTER "ESTABLISHMENT," IT
COULD NOT, AS A MATTER OF LAW, BE A "RETAIL OR SERVICE ESTABLISHMENT"
AS DEFINED IN SEC. 13(A).  THAT ARGUMENT WOULD HAVE HAD SOME FORCE
PRIOR TO THE 1949 AMENDMENT TO SEC. 13(A)(63 STAT.  917), BUT IT IS IN
THE TEETH OF THAT AMENDMENT, AS CLAUSE 4 OF THE SECTION, AS THEN
AMENDED, PROVIDES THAT THE WAGE-AND-HOUR PROVISIONS (SECS. 6 AND 7) OF
THE ACT DO NOT APPLY WITH RESPECT TO A "RETAIL OR SERVICE
ESTABLISHMENT" AS DEFINED "NOTWITHSTANDING THAT SUCH ESTABLISHMENT
MAKES OR PROCESSES AT THE RETAIL ESTABLISHMENT THE GOODS THAT IT SELLS
...  ."  IN THE ABSENCE, AS HERE, OF ESSENTIAL EVIDENCE (SHOWING THE
OVERTIME HOURS WORKED IN EACH OF THE SEVERAL "ESTABLISHMENTS" - IF MORE
THAN ONE) AND FINDINGS, I THINK THE RECORD DOES NOT SUPPORT THE
JUDGMENT NOR DISCLOSE THE MATTERS REQUISITE TO A DECISION OF THE
QUESTION SOUGHT TO BE PRESENTED.  I WOULD, THEREFORE, DISMISS THE WRIT
AS IMPROVIDENTLY GRANTED, OR, AT THE VERY LEAST, REMAND THE CASE TO THE
DISTRICT COURT FOR A NEW TRIAL AND FOR PROPER FINDINGS OF FACT ON THE
DETERMINATIVE ISSUES. 
..END :





















NATIONAL LABOR RELATIONS BOARD V. DEENA ARTWARE, INC. 361 U.S. 398 


NO. 46.  ARGUED DECEMBER 8, 1959 - DECIDED FEBRUARY 23, 1960 - 261 F.2D
503, REVERSED. 


THE NATIONAL LABOR RELATIONS BOARD PETITIONED THE COURT OF APPEALS TO
ADJUDGE RESPONDENTS IN CIVIL CONTEMPT FOR REFUSING TO PAY CERTAIN
AMOUNTS OF BACK PAY DUE TO VARIOUS EMPLOYEES AS A RESULT OF THEIR
DISCRIMINATORY DISCHARGE BY RESPONDENT, DEENA ARTWARE, WHICH IS ONE OF
SEVERAL SUBSIDIARIES WHOLLY OWNED, EXCEPT FOR QUALIFYING SHARES, BY A
PARENT CORPORATION WHICH IN TURN IS WHOLLY OWNED, EXCEPT FOR QUALIFYING
SHARES, BY AN INDIVIDUAL WHO SERVES AS PRESIDENT AND TREASURER.  HE AND
HIS WIFE, SON, AND SECRETARY, CONSTITUTE ALL OF THE OFFICERS AND
DIRECTORS OF THE PARENT CORPORATION AND EACH OF THE SUBSIDIARIES.  THE
BOARD ALLEGED THAT (1) BETWEEN THE DATE OF ENTRY OF A DECREE OF THE
COURT OF APPEALS ENFORCING THE BOARD'S ORIGINAL BACK-PAY ORDER AND THE
COURT'S ENTRY OF A SUPPLEMENTAL DECREE APPROVING THE BOARD'S
DETERMINATION OF THE SPECIFIC AMOUNTS OF BACK PAY DUE, RESPONDENTS HAD
SIPHONED OFF THE ASSETS OF DEENA ARTWARE FOR THE PURPOSE OF AVOIDING
PAYMENT OF ANY BACK PAY FOUND TO BE DUE AND OWING, AND (2) THAT
RESPONDENTS ARE INTEGRAL PARTS OF A SINGLE ENTERPRISE AND, AS SUCH,
WERE AND ARE ANSWERABLE TO THE COURT'S DECREES, WHICH EXPLICITLY RUN
AGAINST DEENA ARTWARE AND ITS OFFICERS, AGENTS, SUCCESSORS AND
ASSIGNS.  THE BOARD ALSO MOVED FOR DISCOVERY, INSPECTION AND
DEPOSITIONS.  WITHOUT CONSIDERING THE BOARD'S CONTENTION THAT THE
VARIOUS CORPORATE RESPONDENTS WERE IN FACT "A SINGLE ENTERPRISE," THE
COURT OF APPEALS DISMISSED THE PETITION AND DENIED THE BOARD'S MOTION
FOR DISCOVERY, INSPECTION AND DEPOSITIONS, ON THE GROUND THAT, AT THE
TIME OF THE ALLEGED SIPHONING OF ASSETS, ITS DECREE WAS NOT
SUFFICIENTLY DEFINITE AND MANDATORY TO SERVE AS A BASIS FOR CONTEMPT
PROCEEDINGS.  HELD:  THE BOARD IS ENTITLED TO A HEARING ON ITS THEORY
THAT THE RESPONDENT CORPORATIONS ARE BUT DIVISIONS OF "A SINGLE
ENTERPRISE," AND IT IS ENTITLED TO DISCOVERY, INSPECTION AND
DEPOSITIONS IN AID OF SUCH A SHOWING.  PP. 399-404. 

NATIONAL LABOR RELATIONS BOARD V. DEENA ARTWARE, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION HAS BEEN LONG AND DRAWN OUT AND THE PRESENT CASE IS
MERELY A SMALL SEGMENT OF IT. IN 1949 PETITIONER FOUND THAT RESPONDENT
DEENA ARTWARE, INC. (ARTWARE), HAD VIOLATED THE NATIONAL LABOR
RELATIONS ACT, 61 STAT. 136, 29 U.S.C. SEC. 158(A), BY DISCHARGING AND
REFUSING TO REINSTATE 66 EMPLOYEES WHO HAD ENGAGED IN A STRIKE (86
N.L.R.B. 732, 95 N.L.R.B. 9); AND IT ORDERED ARTWARE "AND ITS OFFICERS,
AGENTS, SUCCESSORS, AND ASSIGNS" TO OFFER REINSTATEMENT TO THOSE
EMPLOYEES AND TO MAKE THEM WHOLE FOR ANY LOSS OF PAY SUFFERED BY THEM
AS A RESULT OF THE DISCRIMINATING ACTION.  THE COURT OF APPEALS IN 1952
AFFIRMED THE BOARD'S DECISION WITH RESPECT TO 62 OF THE 66 EMPLOYEES
AND ENTERED A DECREE ENFORCING THE BOARD'S ORDER, 198 F.2D 645,
REMANDING THE CASE TO THE BOARD TO DETERMINE THE AMOUNTS DUE THE
INDIVIDUAL EMPLOYEES.  IN 1953 ARTWARE OFFERED REINSTATEMENT TO ALL OF
THESE EMPLOYEES BUT SHORTLY CLOSED ITS PLANT (WHICH WAS LOCATED IN
KENTUCKY), NEVER RESUMED OPERATIONS, AND NEVER PAID ANY BACK PAY TO THE
EMPLOYEES IN QUESTION. 

IT APPEARS THAT WEINER, ONE OF THE RESPONDENTS, CREATED A SERIES OF
CORPORATIONS, AT THE TOP OF WHICH WAS DEENA PRODUCTS, INC. (PRODUCTS),
AN ILLINOIS CORPORATION.  BENEATH IT WAS A GROUP OF SUBSIDIARIES -
FORMED UNDER KENTUCKY LAW - ARTWARE, DEENA OF ARLINGTON, INC., SIPPI
PRODUCTS CO., INC., AND INDUSTRIAL REALTY CO., INC. - ALL OF WHOSE
SHARES, EXCEPT FOR QUALIFYING SHARES, WERE OWNED BY PRODUCTS.  WEINER
OWNED ALL THE SHARES OF PRODUCTS, EXCEPT FOR QUALIFYING SHARES; AND ALL
THE OFFICERS AND DIRECTORS OF PRODUCTS AND THE SEVERAL SUBSIDIARIES
WERE WEINER, HIS WIFE, HIS SON, AND HIS SECRETARY.  WEINER WAS
PRESIDENT AND TREASURER OF PRODUCTS AND OF EACH OF THE SUBSIDIARIES,
INCLUDING ARTWARE. 

ARTWARE IN 1949 GAVE PRODUCTS A PROMISSORY NOTE SECURED BY A MORTGAGE
ON ARTWARE'S PROPERTY, ALLEGEDLY FOR ADVANCES MADE.  IN 1952 ARTWARE
MADE AN ASSIGNMENT TO PRODUCTS IN PARTIAL SATISFACTION OF ITS
INDEBTEDNESS.  IN 1953 THE BOARD APPLIED TO THE COURT OF APPEALS FOR AN
ORDER RESTRAINING THAT ASSIGNMENT.  IT ALSO ASKED FOR AN ORDER OF
DISCOVERY, ALLEGING THAT THE AFFAIRS OF PRODUCTS AND ARTWARE WERE BEING
CONDUCTED IN SUCH A WAY AS TO DISSIPATE ARTWARE'S ASSETS AND TO AVOID
MAKING THE BACK WAGE PAYMENTS.  THE COURT DENIED THESE MOTIONS, HOLDING
THAT, UNTIL THE AMOUNT OF BACK PAY WAS LIQUIDATED AND PAYMENT OF THE
FIXED SUM REFUSED, THERE WAS NO WARRANT FOR GRANTING THAT RELIEF (207
F.2D 798), THE COURT ADDING THAT IF UPON LIQUIDATION OF ARTWARE "ANY
FINANCIAL INABILITY" ON ITS PART TO PAY THE AWARDS WAS SHOWN TO BE "THE
RESULT OF IMPROPER ACTIONS ON ITS PART IN THE MEANTIME, APPROPRIATE
CONTEMPT ACTION CAN THEN BE TAKEN."  ID., AT 802. 

AT THAT TIME, THE BOARD HAD NOT ISSUED AN ORDER DETERMINING THE
SPECIFIC AMOUNTS OF BACK PAY OWED THE INDIVIDUAL EMPLOYEES.  IN 1955 -
NEARLY TWO YEARS LATER - IT MADE THAT DETERMINATION AND ENTERED AN
ORDER, DIRECTING PAYMENT OF BACK PAY TOTALING ABOUT $300,000; AND THE
COURT OF APPEALS ORDERED ARTWARE, "ITS OFFICERS, AGENTS, SUCCESSORS AND
ASSIGNS" TO PAY THAT AMOUNT TO SPECIFIED EMPLOYEES.  228 F.2D 871. 
THAT WAS ON DECEMBER 16, 1955. 

IN 1957 THE BOARD MOVED THE COURT OF APPEALS FOR DISCOVERY,
INSPECTION, AND DEPOSITIONS, NAMING ARTWARE, WEINER, PRODUCTS, AND THE
OTHER SUBSIDIARIES OF PRODUCTS.  IT ALLEGED THAT WEINER HAD CAUSED THE
ASSETS OF ARTWARE TO BE SIPHONED OFF THROUGH THE OTHER CORPORATIONS
UNDER HIS CONTROL FOR THE PURPOSE OF EVADING THE BACK PAY OBLIGATION. 
THE COURT OF APPEALS DENIED THE MOTION, 251 F.2D 183, HOLDING THAT A
CONTEMPT PROCEEDING, RATHER THAN DISCOVERY, WAS THE PROPER PROCEDURE. 

ON AUGUST 20, 1958, THE BOARD PETITIONED THE COURT OF APPEALS TO HOLD
ARTWARE, WEINER, PRODUCTS AND THE OTHER SUBSIDIARIES IN CIVIL CONTEMPT
FOR FAILURE TO PAY THE AMOUNTS DUE EMPLOYEES UNDER THE BACK PAY ORDER. 
ON OCTOBER 11, 1958, THE BOARD RENEWED ITS MOTION FOR DISCOVERY,
INSPECTION, AND THE TAKING OF DEPOSITIONS FROM ARTWARE, THE AFFILIATED
CORPORATIONS, AND WEINER AND OTHER OFFICERS OF THESE CORPORATIONS. 

IN ITS PETITION THE BOARD MADE CHARGES OF DEALINGS BETWEEN THESE
CORPORATIONS AND BETWEEN THEM AND WEINER OCCURRING FROM 1949 TO 1955
WHICH, IT MAINTAINED, SHOWED BOTH (1) FRAUD AND WRONGDOING FOR THE
PURPOSE OF FRUSTRATING THE BACK PAY ORDER AND (2) THE OPERATION OF
THESE VARIOUS CORPORATIONS "AS A SINGLE ENTERPRISE," EACH OF THE
CORPORATIONS PERFORMING "A PARTICULIAR FUNCTION, AS A DEPARTMENT OR
DIVISION OF THE ONE ENTERPRISE IN THE MANUFACTURE, SALE AND
DISTRIBUTION OF THE COMMON PRODUCT."  THE ALLEGATIONS (WHICH ARE
SUMMARIZED IN THE OPINION BELOW, 261 F.2D 503, 506-507) NEED NOT BE
REPEATED HERE, AS THE COURT OF APPEALS MERELY HELD THAT, ALTHOUGH THE
ENFORCEMENT ORDER WAS ENTERED JULY 30, 1952, IT WAS NOT MADE SPECIFIC
AS TO AMOUNTS OWED UNTIL DECEMBER 16, 1955.  IT, THEREFORE, CONCLUDED
THAT PRIOR TO THE LATTER DATE THE DECREE WAS "NOT SUFFICIENTLY DEFINITE
AND MANDATORY TO SERVE AS THE BASIS FOR CONTEMPT PROCEEDINGS."  ID., AT
510.  IT, THEREFORE, DISMISSED THE BOARD'S PETITION FOR ADJUDICATION IN
CIVIL CONTEMPT.  IT ALSO DENIED THE BOARD'S MOTION FOR DISCOVERY,
INSPECTION, AND DEPOSITIONS.  261 F.2D 503, 510.  THE CASE IS HERE ON A
PETITION FOR CERTIORARI, 359 U.S. 983, WHICH WE GRANTED IN ORDER TO
CONSIDER THE VALIDITY OF THE ACTION OF THE COURT OF APPEALS IN
DISMISSING THE PETITION INSOFAR AS IT CHARGED THE EXISTENCE OF "A
SINGLE ENTERPRISE." 

THE COURT OF APPEALS DISMISSED THE PETITION WITHOUT CONSIDERING THE
SECOND GROUP OF ALLEGATIONS MADE BY THE BOARD, VIZ., THAT THESE VARIOUS
CORPORATIONS WERE IN FACT "A SINGLE ENTERPRISE."  AND IT DENIED THE
MOTION FOR DISCOVERY EVEN AS IT PERTAINED TO THAT ALTERNATIVE THEORY OF
LIABILITY.  IT MAY HAVE DONE SO BECAUSE IT THOUGHT THAT THE ISSUES
TENDERED IN THE PETITION RELATED SOLELY TO INTERCOMPANY TRANSACTIONS
ALLEGED TO BE CONVEYANCES IN FRAUD OF CREDITORS OR PREFERENCES IN FAVOR
OF SOME CREDITORS.  THAT SEEMED TO BE ITS PREOCCUPATION, AS IS EVIDENT
BY ITS REFERENCES TO POSSIBLE CAUSES OF ACTION UNDER KENTUCKY LAW TO
SET THOSE TRANSACTIONS ASIDE.  ID., AT 509. 

WE DO NOT STOP TO CONSIDER WHAT WOULD BE A PROPER FORMULATION OF A
RULE OF LAW GOVERNING LIABILITY IN CONTEMPT FOR FRUSTRATION OF A
DECREE.  THE COURT OF APPEALS MAY HAVE CONSIDERED THE TRANSACTIONS AND
ASSIGNMENTS AS IF THEY WERE MADE BETWEEN SEPARATE AND DISTINCT
CORPORATIONS.  IF THEY ARE VIEWED IN THAT LIGHT, WE CANNOT SAY THEY ARE
SO COLORABLE AS TO WARRANT US IN REVERSING THE COURT OF APPEALS.  BUT
WE THINK THE BOARD IS ENTITLED TO SHOW THAT THESE SEPARATE CORPORATIONS
ARE NOT WHAT THEY APPEAR TO BE, THAT IN TRUTH THEY ARE BUT DIVISIONS OR
DEPARTMENTS OF A "SINGLE ENTERPRISE."  THAT IS THE ALTERNATIVE THEORY
OF LIABILITY WHICH THE COURT OF APPEALS DID NOT CONSIDER.  WE THINK
THAT THE BOARD IS ENTITLED TO A HEARING ON THAT ALTERNATIVE THEORY AND
TO DISCOVERY IN AID OF IT. 

THE QUESTION WHETHER THE CORPORATIONS UNDER WEINER'S OWNERSHIP WERE
ONLY DEPARTMENTS OR DIVISIONS IN ONE SINGLE ENTERPRISE IS IN A
DIFFERENT CATEGORY THAN THOSE THAT ARISE UNDER EITHER 13 ELIZ.  OR THE
MODERN LAW OF PREFERENCES.  WHETHER ONE CORPORATION IS LIABLE FOR THE
OBLIGATIONS OF AN AFFILIATE TURNS ON OTHER CONSIDERATIONS.  THE
INSULATION OF A STOCKHOLDER FROM THE DEBTS AND OBLIGATIONS OF HIS
CORPORATION IS THE NORM, NOT THE EXCEPTION.  SEE PULLMAN CAR CO. V.
MISSOURI PACIFIC R. CO., 115 U.S. 587, 597.  YET AS MR. JUSTICE CARDOZO
SAID IN BERKEY V. THIRD AVENUE R. CO., 244 N.Y. 84, 95; 155 N.E. 58,
61, "DOMINION MAY BE SO COMPLETE, INTERFERENCE SO OBTRUSIVE, THAT BY
THE GENERAL RULES OF AGENCY THE PARENT WILL BE A PRINCIPAL AND THE
SUBSIDIARY AN AGENT.  WHERE CONTROL IS LESS THAN THIS, WE ARE REMITTED
TO THE TESTS OF HONESTY AND JUSTICE."  THAT IS NOT A COMPLETE
CATALOGUE.  THE SEVERAL COMPANIES MAY BE REPRESENTED AS ONE.  (FN1)
APART FROM THAT IS THE QUESTION WHETHER IN FACT THE ECONOMIC ENTERPRISE
IS ONE, THE CORPORATE FORMS BEING LARGELY PAPER ARRANGEMENTS THAT DO
NOT REFLECT THE BUSINESS REALITIES.  ONE COMPANY MAY IN FACT BE
OPERATED AS A DIVISION OF ANOTHER; (FN2) ONE MAY BE ONLY A SHELL,
INADEQUATELY FINANCED; (FN3) THE AFFAIRS OF THE GROUP MAY BE SO
INTERMINGLED THAT NO DISTINCT CORPORATE LINES ARE MAINTAINED.  (FN4)
THESE ARE SOME, THOUGH BY NO MEANS ALL, (FN5) OF THE RELEVANT
CONSIDERATIONS, AS THE AUTHORITIES RECOGNIZE.  SEE LATTIN ON
CORPORATIONS (1959) CH. 2, SECS. 13, 14; STEVENS ON CORPORATIONS (1949)
SEC. 17; BERLE, THE THEORY OF ENTERPRISE ENTITY, 47 COL. L. REV. 343. 

WE DO NOT INTIMATE AN OPINION ON THE MERITS OF THIS ALTERNATIVE
THEORY OF LIABILITY.  THE AUTHORITIES WE HAVE CITED MERELY INDICATE THE
RANGE OF INQUIRY WHICH THE PETITION OF THE BOARD PRESENTED.  DISCOVERY
IS USEFUL IN DETERMINING WHAT THE FACTS ARE.  IT IS, INDEED, NECESSARY
TO DETERMINE WHETHER THE DECREE OF THE COURT ENFORCING THE BOARD'S
ORDER SHOULD RUN TO ANY OF THE AFFILIATED CORPORATIONS OR THEIR
STOCKHOLDERS.  WHEN THE FACTS ARE RESOLVED, IT WILL BE TIME ENOUGH TO
CONSIDER WHAT FURTHER ENFORCEMENT DECREE, IF ANY, WOULD BE
APPROPRIATE.  (FN6) 

THE PETITION SHOULD BE REINSTATED INSOFAR AS IT CHARGES THE EXISTENCE
OF "A SINGLE ENTERPRISE," AND THE MOTION FOR DISCOVERY SHOULD BE
GRANTED SO THAT THE BOARD WILL HAVE AN OPPORTUNITY TO PROVE THOSE
ALLEGATIONS.  REVERSED. 

FN1  SEE PLATT V. BRADNER CO., 131 WASH. 573, 230 P. 633.  CF.
AMERICAN NAT. BANK V. NATIONAL WALL-PAPER CO., 77 F.85, 91. 

FN2  SEE FOARD CO. V. MARYLAND, 219 F. 827, 829; PORTSMOUTH COTTON
OIL CORP. V. FOURTH NAT. BANK, 280 F. 879; DILLARD & COFFIN CO. V.
RICHMOND COTTON OIL CO., 140 TENN. 290, 296, 204 S.W. 758; COSTAN V.
MANILA ELECTRIC CO., 24 F.2D 383, 384-385.  CF. UNITED STATES V.
DELAWARE, L.&W.R. CO., 238 U.S. 516, 529; CHICAGO, M.&ST.P.R. CO. V.
MINNEAPOLIS CIVIC ASSN., 247 U.S. 490, 500-502; ERICKSON V. MINNESOTA &
ONTARIO POWER CO., 134 MINN. 209, 213-215, 158 N.W. 979, 980-981. 

FN3  SEE LUCKENBACH S.S. CO. V. W.R. GRACE & CO., 267 F. 676, 681;
ORIENTAL INVESTMENT CO. V. BARCLAY, 25 TEX. CIV. APP. 543, 554-557, 64
S.W. 80, 86-87.  FOR DISCUSSION OF THE SITUATION WHERE A COMPANY IS
"DELIBERATELY KEPT JUDGMENT-PROOF" SEE WEISSER V. MURSAM SHOE CORP.,
127 F.2D 344-346. 

FN4  SEE THE WILLEM VAN DRIEL, 252 F. 35, 38; WICHITA FALLS & N.W.R.
CO. V. PUCKETT, 53 OKLA, 463, 502-505, 157 P. 112, 124-125.  CF. UNITED
STATES V. LEHIGH VALLEY R. CO., 220 U.S. 257, 272-274. 

FN5  CF. UNION SULPHER CO. V. FREEPORT TEXAS CO., 251 F. 634, 661
662; HARLAN PUBLIC SERVICE CO. V. EASTERN CONSTR.  CO., 254 KY. 135,
143, 71 S.W.2D 24, 29. 

FN6  CF. REGAL KNITWEAR CO. V. LABOR BOARD, 324 U.S. 9, 16. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, CONCURRING IN
REVERSAL ON THE GROUNDS HEREIN STATED. 

DUE REGARD FOR THE CONTROLLING FACTS IN THIS CASE WILL LAY BARE THEIR
LEGAL SIGNIFICANCE.  THIS REQUIRES THAT THE FACTS, AND THE PROCEDURAL
SETTING IN WHICH THEY ARE TO BE CONSIDERED, BE STATED WITH
PARTICULARITY. 

THE RESPONDENTS ARE AN INDIVIDUAL AND SEVERAL CORPORATIONS.  THE
INDIVIDUAL RESPONDENT, ONE WEINER, IS THE SOLE STOCKHOLDER, EXCEPT FOR
QUALIFYING SHARES, OF DEENA PRODUCTS (PRODUCTS), AN ILLINOIS
CORPORATION ENGAGED IN THE MANUFACTURE AND SALE OF LAMPS.  THE
REMAINING RESPONDENTS ARE WHOLLY OWNED SUBSIDIARIES OF PRODUCTS.  THEY
ARE DEENA ARTWARE (ARTWARE), A NOW DEFUNCT KENTUCKY CORPORATION WHICH
FORMERLY ENGAGED IN THE MANUFACTURE OF CHINA URNS FOR USE AS LAMP
BASES; DEENA OF ARLINGTON, ANOTHER KENTUCKY CORPORATION, ENGAGED IN THE
PRODUCTION OF SHADES AND THE ASSEMBLY OF LAMPS; SIPPI PRODUCTS COMPANY
(SIPPI), A KENTUCKY CORPORATION ENGAGED, AS WAS ARTWARE FORMERLY, IN
THE MANUFACTURE OF CHINA URNS FOR USE AS LAMP BASES; AND INDUSTRIAL
REALTY COMPANY (INDUSTRIAL), A KENTUCKY CORPORATION ORGANIZED TO HOLD
TITLE TO THE PHYSICAL ASSETS FORMERLY HELD BY ARTWARE.  WEINER HAS, AT
ALL RELEVANT TIMES, COMPLETELY CONTROLLED PRODUCTS, WHICH IN TURN HAS
SIMILARLY DOMINATED ALL OF THE RESPONDENT SUBSIDIARIES.  WEINER SERVED
AS PRESIDENT, TREASURER (FN1) AND A DIRECTOR OF ALL OF THE
CORPORATIONS; HIS WIFE, SON AND SUCCESSIVE SECRETARIES AS THE OTHER
DIRECTORS. 

ARTWARE WAS ORGANIZED BY PRODUCTS IN 1946, AND SHORTLY THEREAFTER
ACQUIRED A FACTORY FOR THE PRODUCTION OF LAMP BASES AT PADUCAH,
KENTUCKY.  IN 1947 CONSTRUCTION WAS UNDERTAKEN, ALLEGEDLY BY PRODUCTS,
OF A LAMP ASSEMBLY PLANT ADJACENT TO THE ARTWARE PLANT AT PADUCAH.  AT
ABOUT THE SAME TIME THE LABOR DISPUTE AROSE WHICH LED TO THE LABOR
BOARD ORDERS UNDERLYING THIS PROCEEDING.  ON OCTOBER 25, 1949, ARTWARE
WAS FOUND BY THE BOARD TO HAVE VIOLATED SEC. 8(A)(1), (3) AND (5) OF
THE NATIONAL LABOR RELATIONS ACT (AS AMENDED) AND WAS ORDERED, INTER
ALIA, TO REINSTATE WITH BACK PAY SIXTY-SIX NAMED EMPLOYEES WHOSE
DISCHARGE DURING THE DISPUTE WAS FOUND TO HAVE BEEN IMPROPER.  86
N.L.R.B. 732, 736.  ON JULY 30, 1952, THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT, AT THE BOARD'S PETITION, GRANTED ENFORCEMENT OF ITS
ORDER.  198 F.2D 645.  AT ABOUT THE SAME TIME THAT COURT ALSO SUSTAINED
ARTWARE'S RECOVERY AGAINST THE UNION OF A MONEY JUDGMENT FOR INJURIES
IT SUSTAINED BY VIRTUE OF A SECONDARY BOYCOTT ENGAGED IN BY THE UNION
DURING THE SAME DISPUTE.  198 F.2D 637.    THE BOARD THEN PETITIONED
THE COURT OF APPEALS FOR AN INJUNCTION AGAINST PAYMENT OF A PART OF THE
JUDGMENT ARTWARE HAD RECOVERED AGAINST THE UNION, ALLEGING THAT ARTWARE
HAD UNDERTAKEN TO RENDER ITSELF UNABLE TO PAY ANY BACK PAY IN THE
AMOUNTS WHICH THE BOARD WAS AUTHORIZED TO FIX BY VIRTUE OF THE COURT'S
ORDER OF JULY 30, 1952.  THE COURT OF APPEALS REFUSED THE INJUNCTION
PRIMARILY UPON THE GROUND THAT THE DEFINITE AMOUNT OF BACK PAY OWING
UNDER ITS ORDER HAD NOT YET BEEN DETERMINED BY THE BOARD.  THE COURT
NOTED THAT IF, AFTER SUCH DETERMINATION, IT APPEARED THAT ARTWARE HAD
ACTED IMPROPERLY, THE COURT COULD DEAL WITH THE MATTER IN CONTEMPT
PROCEEDINGS.  207 F.2D 798. 

AS A RESULT OF THE PROCEEDINGS TO FIX THE AMOUNT OF BACK PAY, THE
BOARD, BY AN ORDER OF APRIL 21, 1955, DIRECTED ARTWARE TO PAY THE BACK
PAY IT OWED VARIOUS EMPLOYEES IN SPECIFIED AMOUNTS TOTALING ABOUT
$300,000.  112 N.L.R.B. 371.  THIS ORDER WAS SUSTAINED BY THE COURT OF
APPEALS.  228 F.2D 871.   ON A SHOWING THAT ARTWARE WAS ENTIRELY
WITHOUT ASSETS, HAD CEASED OPERATIONS ON APRIL 24, 1953, AND HAD, ON
NOVEMBER 24, 1954, TRANSFERRED ALL ITS ASSETS TO PRODUCTS, PURPORTEDLY
IN SATISFACTION OF A MORTGAGE, THE BOARD SOUGHT A DISCOVERY ORDER IN
THE COURT OF APPEALS TO INQUIRE INTO THE DISPOSITION OF ARTWARE'S
ASSETS.  THE BOARD PROCEEDED ON THE ASSUMPTION THAT DISCOVERY WOULD
REVEAL FACTS REQUIRING PAYMENT OF ARTWARE'S BACK-PAY DEBT BY THE
COMPANIES AFFILIATED WITH IT.  DISCOVERY WAS DENIED (ONE JUDGE
DISSENTING).  251 F.2D 183.  THE COURT'S GROUND FOR DENYING DISCOVERY
WAS, SURPRISINGLY ENOUGH, THAT THE BOARD SHOULD FIRST TEST THE LEGAL
SUFFICIENCY OF A COMPLAINT CHARGING RESPONDENTS WITH CONTEMPT.  THE
BOARD THEREUPON FILED THIS PETITION ALLEGING CONTEMPT OF THE COURT'S
DECREE OF ENFORCEMENT OF JULY 30, 1952, AND RENEWED ITS MOTION FOR
DISCOVERY. 

THE BOARD'S PETITION CHARGED THAT PURSUANT TO A PLAN TO FRUSTRATE THE
AWARD OF BACK PAY AGAINST DEENA ARTWARE, CONCEIVED BY WEINER DURING OR
SHORTLY AFTER THE DISPUTE WITH THE UNION AND CARRIED OUT BY HIM THROUGH
EXERCISE OF HIS CONTROL OF PRODUCTS AND ALL ITS SUBSIDIARIES, ALL OF
THE ASSETS OF ARTWARE WERE SYSTEMATICALLY TRANSFERRED TO PRODUCTS AND
ITS OTHER SUBSIDIARIES FOR THE PURPOSE OF RENDERING ARTWARE UNABLE TO
PAY ANY BACK-PAY ORDER THAT MIGHT THEREAFTER BE ENFORCED AGAINST IT.
IT ALLEGED THAT ACTS IN PURSUANCE OF THAT PLAN OCCURRED AFTER, AND
THEREFORE IN CONTEMPT OF, THE DECREE OF THE COURT OF APPEALS WHICH WAS
ENTERED ON JULY 30, 1952.  ALL OF THE ACTS ALLEGED IN PURSUANCE OF THE
PLAN OCCURRED BEFORE THE ENTRY OF THE 1955 DECREE AFFIRMING THE BOARD'S
ORDER TO PAY SPECIFIC AMOUNTS.  THE BOARD CHARGED THAT WEINER AND
PRODUCTS PREVENTED ARTWARE FROM SHOWING ANY OPERATING PROFITS AND
THEREBY FROM ACCUMULATING ASSETS IN THE ORDINARY COURSE OF ITS
BUSINESS, BY CAUSING ARTWARE TO LOWER THE PRICE AT WHICH IT SOLD URNS
TO PRODUCTS, SO THAT ARTWARE SHOWED LOSSES WHILE PRODUCTS MADE
SUBSTANTIAL PROFITS; AND THAT WEINER AND PRODUCTS CAUSED ARTWARE TO
ISSUE NOTES, SECURED BY MORTGAGES ON ALL OF ITS ASSETS, TO PRODUCTS,
FOR WHICH ARTWARE RECEIVED NOTHING IN RETURN, IN ORDER THAT ARTWARE'S
ASSETS COULD BE, AS THEY WERE, TRANSFERRED TO PRODUCTS AFTER ARTWARE
WAS ADJUDICATED LIABLE TO PAY BACK PAY.  THE BOARD ALLEGED THE
FOLLOWING: 

1.  EARLY IN 1948, AFTER ARTWARE, UNDER WEINER'S DIRECTION, HAD
COMMITTED THE UNFAIR LABOR PRACTICES SO FOUND BY THE BOARD, PRODUCTS
BEGAN TO TREAT THE NEW ASSEMBLY PLANT CONSTRUCTION AT PADUCAH ADJACENT
TO ARTWARE'S PLANT AS IF IT HAD BEEN UNDERTAKEN BY ARTWARE, AND NOT, AS
WAS THE FACT, BY ITSELF.  ARTWARE THEREFORE RECORDED THE LOSSES
RESULTING FROM ABANDONMENT OF THAT CONSTRUCTION IN JULY 1948. 
NEVERTHELESS, WEHN PRODUCTS UNDERTOOK ALTERNATIVE NEW CONSTRUCTION AT
ARLINGTON FOR THE SAME PURPOSE, IT USED THE CONSTRUCITON MATERIALS,
ENGINEERING AND ARCHITECTURAL PLANS AND SERVICES, AND OTHER SERVICES
AND MATERIALS, WHICH IT HAD ALREADY CHARGED TO ARTWARE, AND DID SO
WITHOUT PAYING ARTWARE OR CREDITING IT WITH THEIR VALUE. 

2.  PRODUCTS THEREAFTER MADE FURTHER USE OF ITS PURPORTED SHIFT OF
THE PADUCAH CONSTRUCTION TO DEENA ARTWARE.  ABOUT OCTOBER 31, 1949, A
FEW DAYS AFTER THE BOARD ISSUED ITS ORDER DIRECTING, INTER ALIA, THAT
ARTWARE PAY BACK PAY, PRODUCTS AND WEINER CAUSED ARTWARE TO EXECUTE A
NOTE TO PRODUCTS IN THE AMOUNT OF $75,459.65, PAYABLE WITHIN FIVE
YEARS, AND SECURED BY A MORTGAGE ON ALL THE REAL AND PERSONAL PROPERTY
OF ARTWARE, PURPORTEDLY IN RETURN FOR ADVANCES BY PRODUCTS FOR THE
CONSTRUCTION AT PADUCAH, DESPITE THE FACT THAT THE CONSTRUCTION HAD
BEEN ABANDONED MORE THAN A YEAR BEFORE, AND HAD BEEN UNDERTAKEN NOT BY
ARTWARE, BUT BY PRODUCTS.  A SECOND NOTE, SIMILARLY SECURED, WAS ISSUED
ABOUT SEPTEMBER 19, 1952, IN THE AMOUNT OF $5,797.74.  ON NOVEMBER 24,
1954, AFTER THE COURT OF APPEALS' FIRST ENFORCEMENT ORDER OF JULY 30,
1952, BUT BEFORE THE BOARD'S FIXATION OF THE AMOUNTS DUE ON APRIL 21,
1955, WEINER AND PRODUCTS CAUSED ARTWARE TO TRANSFER TO PRODUCTS ALL OF
ITS ASSETS IN SATISFACTION OF THESE MORTGAGES.  IN DECEMBER 1952
PRODUCTS AND WEINER ALSO CAUSED ARTWARE TO ASSIGN TO PRODUCTS PART OF
THE PROCEEDS OF THE JUDGMENT ARTWARE HAD RECOVERED AGAINST THE UNION,
AS ADDITIONAL SECURITY FOR ITS OBLIGATIONS TO PRODUCTS.  IN JANUARY
1954, $19,320.97 OF ARTWARE'S RECOVERY WAS RECEIVED BY PRODUCTS, THE
REMAINDER HAVING BEEN ASSIGNED TO ARTWARE'S COUNSEL IN PAYMENT OF
ATTORNEY'S FEES. 

3.  BEGINNING ABOUT MARCH 1949, AFTER THE HEARING ON THE BOARD'S
COMPLAINT AGAINST ARTWARE, PRODUCTS AND WEINER CAUSED ARTWARE TO LOWER
ITS PRICES TO PRODUCTS, CAUSING INFLATION OF PRODUCTS' PROFITS, AND
OPERATING LOSSES TO ARTWARE. 

4.  ABOUT APRIL 24, 1953, PRODUCTS AND WEINER CAUSED ARTWARE TO CEASE
ALL OPERATIONS.  FROM THAT TIME UNTIL NOVEMBER 24, 1954, PRODUCTS AND
SIPPI USED ARTWARE'S PLANT PREMISES, FACILITIES AND PROPERTIES AT
PADUCAH, WITHOUT PAYMENT TO ARTWARE, AND PRODUCTS OBTAINED FROM SIPPI
THE SUPPLIES IT HAD FORMERLY SECURED FROM ARTWARE.  ON NOVEMBER 24,
1954, PRODUCTS AND WEINER CAUSED ARTWARE TO TRANSFER ALL ITS ASSETS TO
PRODUCTS IN SATISFACTION OF ITS OBLIGATIONS WHICH THEN, WITH ACCRUED
INTEREST (AT 6% PAYABLE SEMI-ANNUALLY, BUT NOT THERETOFORE PAID),
TOTALED $105,000, LEAVING, AS ARTWARE'S SOLE UNSATISFIED OBLIGATION,
THE BACK-PAY ORDER.  THEREAFTER SIPPI CONTINUED TO USE THE ARTWARE
FACILITIES, TITLE TO WHICH, ABOUT MAY 4, 1955, PRODUCTS CAUSED TO BE
TRANSFERRED TO THE NEWLY CREATED SUBSIDIARY, INDUSTRIAL.  ABOUT
NOVEMBER 17, 1955, PRODUCTS AND WEINER CAUSED INDUSTRIAL TO LEASE THE
FACILITIES FORMALLY TO SIPPI; AND SINCE DECEMBER 1, 1955, SIPPI HAS
OPERATED THE ARTWARE FACILITIES IN THE SAME MANNER AND TO THE SAME END
AS DID ARTWARE FORMERLY. 

THE COURT OF APPEALS, ON RESPONDENTS' MOTION, DISMISSED THE COMPLAINT
FOR FAILURE TO STATE A CAUSE OF ACTION, AND DENIED THE BOARD'S
ACCOMPANYING MOTION FOR DISCOVERY.  IT HELD THAT SINCE ITS ORDER OF
JULY 30, 1952, IN AFFIRMING THE BOARD'S DETERMINATION OF LIABILITY FOR
BACK PAY WHICH THE BOARD HAD NOT YET INDIVIDUALIZED, DID NOT SPECIFY
THE EXACT MONETARY AMOUNT WHICH ARTWARE OWED ITS VARIOUS EMPLOYEES, IT
WAS "NOT SUFFICIENTLY DEFINITE AND MANDATORY" TO SUSTAIN AN
ADJUDICATION OF CONTEMPT.  THE BASIS OF THIS CONCLUSION WAS NOT A
CONSTRUCTION BY THE COURT OF THE SPECIAL TERMS OF ITS OWN DECREE.  THIS
WAS IN TERMS THE ORDER ENTERED BY THE BOARD.  THE COURT APPLIED WHAT IT
BELIEVED TO BE A GENERAL PRINCIPLE OF LAW THAT AN ENFORCEMENT DECREE OF
A BOARD ORDER DETERMINING LIABILITY FOR BACK PAY, BUT LEAVING FOR A
LATER STAGE DETERMINATION OF THE SPECIFIC AMOUNTS DUE TO INDIVIDUAL
EMPLOYEES, IS TOO INDEFINITE TO SUSTAIN CONTEMPT PROCEEDINGS. 

THE RESPONDENTS URGE IN SUPPORT OF THE DECISION BELOW THAT AFTER THE
1952 DECREE ARTWARE WAS ENTITLED TO A FURTHER ADMINISTRATIVE HEARING TO
DETERMINE WHETHER THE CONDUCT OF THE NAMED EMPLOYEES AFTER THEIR
WRONGFUL DISCHARGE DISENTITLED THEM TO RECOVER, AND THAT DESPITE THE
1952 DECREE IT MIGHT THEREFORE ULTIMATELY BE DETERMINED THAT ARTWARE
WAS NOT IN FACT OBLIGATED TO MAKE ANY PAYMENT WHATEVER.  IT FOLLOWS,
THE ARGUMENT RUNS, THAT SINCE THE BOARD'S 1952 ORDER DID NOT PURPORT TO
ADJUDICATE A LIABILITY FREE OF DEFENSES TO MAKE BACK-PAY PAYMENTS, IT
COULD NOT, FOR PURPOSES OF SUCH PAYMENTS, BE CONSIDERED FINAL. 
ACCORDINGLY, THE 1952 DECREE WHICH IN TERMS ENFORCED IT COULD NOT
EMBODY A FINAL MANDATE CONCERNING THE PAYMENTS, DISOBEDIENCE OF WHICH
COULD CONSTITUTE CONTEMPT.   (FN2) 

THE BOARD CONCEDES THAT THE 1952 DECREE HAVING BEEN ENTERED BEFORE
ANY DETERMINATION OF SPECIFIC AMOUNTS OWING, IT DID NOT DIRECT PRESENT
PAYMENT TO BE MADE, AND THAT RESPONDENT ARTWARE COULD NOT BE HELD IN
CONTEMPT FOR FAILURE TO MAKE PAYMENT BEFORE THE ENTRY OF THE 1955
DECREE.  BUT IT URGES THAT THE 1952 DECREE COULD AND DID IMPOSE AN
IMMEDIATE AND DEFINITE OBLIGATION UPON ARTWARE NOT TO DESIGN AND
EXECUTE A PLAN FOR THE VERY PURPOSE OF DISABLING ITSELF FROM OBEYING
THE DECREE WHICH HAD DEFINITIVELY ADJUDICATED ITS OBLIGATION TO PAY
WHATEVER WOULD BE FOUND TO BE THE DOLLAR-AND-CENTS AMOUNT OF ITS
THERETOFORE ESTABLISHED LIABILITY.  IF THE ALLEGATIONS IN THE PETITION
FOR CONTEMPT ARE SUSTAINED BY PROOF, THERE CAN BE NO DOUBT THAT ARTWARE
DISREGARDED THIS OBLIGATION NOT TO FRUSTRATE THE 1952 DECREE. 

THE VITAL QUESTION OF THE LEGAL IMPLICATIONS OF ENFORCEMENT OF A
BOARD ORDER RENDERED IN AN UNFAIR LABOR PRACTICE PROCEEDING DIRECTING
REINSTATEMENT AND PAYMENT OF BACK PAY, WAS THE SOLE QUESTION DEALT WITH
IN THE OPINION BELOW.  IT WAS THE PRIMARY ISSUE BETWEEN THE PARTIES
HERE.  IT IS THE ISSUE FOR OUR DECISION.  THE BOARD'S PROCEDURE IN
UNFAIR LABOR PRACTICE CASES IS FIRST TO HOLD A HEARING TO DETERMINE
WHETHER AN UNFAIR LABOR PRACTICE WAS COMMITTED, AND, IF IT WAS, WHETHER
IT WOULD "EFFECTUATE THE POLICIES" OF THE ACT FOR THE BOARD TO ORDER
REINSTATEMENT WITH BACK PAY OF ANY EMPLOYEES WHO WERE DISCHARGED.  SEC.
10(C).  IN SUCH A PROCEEDING THE BOARD DOES NOT CONCERN ITSELF WITH THE
AMOUNT OF BACK PAY ACTUALLY OWING.  THIS IS EXCLUDED FROM THE
PROCEEDING IN THE INTEREST OF THE EFFICIENT ADMINISTRATION OF THE ACT. 
THE DETERMINATION OF SPECIFIC LIABILITIES MAY INVOLVE A PROTRACTED
CONTEST.  AN EMPLOYEE WHO IS WRONGFULLY DISCHARGED MAY, FOR EXAMPLE,
NOT BE ENTITLED TO BACK PAY BECAUSE HE FAILED TO ACCEPT OTHER
EMPLOYMENT.  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 197-200. 
SINCE THE DETERMINATION THAT THE DISCHARGE WAS WRONGFUL IS SUBJECT TO
REVIEW, EXTENSIVE PROCEEDINGS TO DETERMINE THE AMOUNT OF LIABILITY MAY
BE RENDERED SUPERFLUOUS BY REVERSAL.  AND IF THE DETERMINATION IS
SUSTAINED AND BECOMES FINAL, IT MAY BE EXPEDIENT FOR A RESPONDENT TO
REACH AGREEMENT AND AVOID FURTHER LITIGATION.  THE PROPRIETY OF THIS
ESTABLISHED TWO-STAGE PROCEDURE OF THE BOARD IN THESE BACK-PAY CASES IS
NOT QUESTIONED. 

IT WILL NOT DO TO HOLD THAT BECAUSE THE BOARD'S DETERMINATION OF THE
DUTY TO MAKE BACK-PAY PAYMENTS DOES NOT RESULT IN FIXED MONEY
JUDGMENTS, NO FINAL ORDER WITH REGARD TO BACK PAY IS IN FACT ENTERED OR
ENFORCED.  THE BOARD IS NOT, AS RESPONDENTS SUGGEST, MERELY THE
STATUTORY REPRESENTATIVE OF THE EMPLOYEES FOR RECOVERY OF THEIR
LOSSES.  (FN3)  ITS PRIMARY FUNCTION UNDER SEC. 10, IN CONNECTION WITH
WHICH IT MAKES SPECIFIC MONETARY ORDERS FOR SPECIFIC EMPLOYEES, IS TO
PREVENT THE CONDUCT DEFINED AS UNFAIR LABOR PRACTICES IN SEC. 8. 
LABOR PRACTICE OCCURRED, IT MAY MAKE SUCH REMEDIAL ORDERS FOR
REINSTATEMENT WITH BACK PAY AS WILL "EFFECTUATE THE POLICIES" OF THE
ACT.  WE HAVE HELD THAT THE BOARD IS GRANTED BROAD DISCRETION OVER THE
FASHIONING OF REMEDIAL ORDERS BY THIS PROVISION.  PHELPS DODGE CORP. V.
LABOR BOARD, SUPRA, AT 195-199. 

IT IS PLAINLY WITHIN THAT AREA OF DISCRETION FOR THE BOARD TO ORDER
AN EMPLOYER WHO IS FOUND TO HAVE VIOLATED SEC. 8 BY THE DISCRIMINATORY
DISCHARGE OF EMPLOYEES, TO REFRAIN FROM CONDUCT WHICH IS SOLELY
DESIGNED TO DEFEAT ANY REMEDIAL BACK-PAY ORDER WHICH MAY BE ENTERED
WHEN SPECIFIC AMOUNTS ARE FINALLY DETERMINED.  IT IS EQUALLY
APPROPRIATE FOR THE COURT OF APPEALS, BY A DECREE ENFORCING THE BOARD'S
ORDER, TO PLACE HIM AT THE HAZARD THAT IF AN AMOUNT IS FOUND TO BE
OWING, SUCH CONDUCT SUBSEQUENT TO THE DECREE MAY BE FOUND TO BE
CONTUMACIOUS.  THE SALIENT FACT WHICH BRINGS THE BOARD'S REMEDIAL POWER
INTO PLAY UNDER SEC. 10(C) IS ITS FINDING THAT THE EMPLOYER'S CONDUCT
CONSTITUTED AN UNFAIR LABOR PRACTICE.  THE SEPARATION OF THAT FINDING
FROM THE DETERMINATION OF AMOUNTS BEING AN EMINENTLY REASONABLE METHOD
FOR ADMINISTERING THE ACT, IT IS IRRELEVANT THAT AS YET UNDETERMINED
MATTERS SUBSEQUENT TO THE DISCRIMINATORY DISCHARGE MAY IN FACT
DISENTITLE SOME OR ALL OF THE EMPLOYEES TO RECEIVE PAYMENT.  CF. MCCOMB
V. JACKSONVILLE PAPER CO., 336 U.S. 187.  ENFORCEMENT OF SUCH A BOARD
ORDER DOES NOT INTERFERE WITH THE ORDINARY CONDUCT OF THE RESPONDENT'S
BUSINESS, OR SUBJECT IT UNREASONABLY TO THE HAZARD OF CONTEMPT.  THE
DECREE IS A FORM OF ASSURANCE THAT BUSINESS WILL BE CONDUCTED WITH
REFERENCE TO BUSINESS MOTIVES, AND NOT MERELY SO AS TO EVADE THE
REMEDIES DESIGNED TO ENFORCE THE POLICIES OF THE ACT. 

IT IS FURTHER URGED, HOWEVER, THAT EVEN IF POWER EXISTS IN THE BOARD
AND THE COURTS TO ENTER AND ENFORCE SUCH AN ORDER OF LIABILITY FOR BACK
PAY IN AMOUNTS TO BE ASCERTAINED, THE 1952 DECREE CONTAINED NO SUCH
DIRECTION.  BUT THE DECREE ON ITS FACE IS AN EXERCISE OF THE EQUITY
POWER TO ACT IN PERSONAM TO DIRECT A SPECIFIC COURSE OF CONDUCT.  TO
FAIL TO ACCORD IT AT LEAST THE IMPLIED EFFECT OF A DIRECTION NOT TO ACT
SOLELY FOR THE PURPOSE OF DEFEATING IT, MAKES OF THE DECREE LESS THAN A
BRUTUM FULMEN AND TRANSMUTES IT INTO A MOCKERY.  THE BOARD'S
DETERMINATIONS ARE NOT MERELY ADMINISTRATIVE ANALOGUES OF COMMON-LAW
JUDGMENTS, AND THEY DO NOT PURPORT TO BE.  AS HERE, THEY UNIFORMLY
CONTAIN A SPECIFIC DIRECTION TO TAKE "AFFIRMATIVE ACTION."  IN
ENFORCING THE BOARD'S ORDERS THE COURTS OF APPEALS SIMILARLY ACT NOT
MERELY TO REVIEW A COMMON-LAW JUDGMENT, BUT TO "EFFECTUATE THE
POLICIES" OF THE NATIONAL LABOR RELATIONS ACT BY ENFORCEMENT ORDERS
DIRECTING THAT ACTION BE TAKEN TO REMOVE THE UNFAIR LABOR PRACTICE
FOUND TO EXIST.  EVERY AFFIRMATIVE ORDER IN EQUITY CARRIES WITH IT THE
IMPLICIT COMMAND TO REFRAIN FROM ACTION DESIGNED TO DEFEAT IT.  SUCH AN
IMPLICATION MAY ARISE FROM THE MERE ASSUMPTION OF JURISDICTION AS TO
SPECIFIC PROPERTY.  SEE MERRIMACK RIVER SAVINGS BANK V. CLAY CENTER,
219 U.S. 527, 535-536.  HERE, ALTHOUGH SPECIFIC PROPERTY IS NOT
INVOLVED, THE 1952 ORDER WAS MORE THAN AN ASSUMPTION OF JURISDICTION. 
IT ADJUDICATED A LIABILITY TO REDRESS THE CONSEQUENCES OF A
DISCRIMINATORY DISCHARGE.  IMPLICIT IN THAT ADJUDICATION, AND THE
DIRECTION TO PAY IN WHICH IT WAS EMBODIED, WAS THE COMMAND TO THE
RESPONDENT DEENA ARTWARE NOT TO CONDUCT ITS BUSINESS AND TRANSFER ALL
ITS ASSETS FOR THE SOLE PURPOSE OF EVADING THE SPECIFIC DOLLAR-AND
CENTS OBLIGATIONS IN THE OFFING.  IN THE MERRIMACK RIVER SAVINGS BANK
CASE, SUPRA, THE COURT HELD THAT "THE WILLFUL REMOVAL BEYOND THE REACH
OF THE COURT OF THE SUBJECT-MATTER OF THE LITIGATION OR ITS DESTRUCTION
PENDING AN APPEAL FROM A DECREE PRAYING, AMONG OTHER THINGS, AN
INJUNCTION TO PREVENT SUCH REMOVAL OR DESTRUCTION UNTIL THE RIGHT SHALL
BE DETERMINED, IS, IN AND OF ITSELF, A CONTEMPT OF THE APPELLATE
JURISDICTION OF THIS COURT."  219 U.S., AT 535-536.  OUR CASE IS A
FORTIORI GOVERNED BY THIS PRINCIPLE.  HERE THE COURT OF APPEALS HAD
ALREADY ADJUDICATED THAT THE RESPONDENTS WERE SUBJECT TO A LIABILITY
FOR BACK-PAY WAGES, AND THE INDIVIDUALIZATION OF THE AMOUNTS FLOWING
FROM THE LIABILITY MERELY AWAITED THE DETERMINATION BY THE BOARD.  THE
ASSUMPTION THAT NO MONEY WOULD BE DUE TO ANY OF THE WORKERS IS SO
FANCIFUL AS SURELY NOT TO BE MADE THE BASIS OF THE LEGAL ASSUMPTION
THAT ALTHOUGH THE COURT OF APPEALS HAD ADJUDICATED THE LIABILITY OF THE
RESPONDENTS, NO LIABILITY WOULD FOLLOW.  BY PUTTING BEYOND REACH THE
MEANS FOR SATISFYING THE DOLLAR-AND-CENTS AMOUNT OF THEIR LIABILITY,
THE RESPONDENTS CERTAINLY FRUSTRATED THE COURT OF APPEALS' POWER TO
EFFECTUATE ENFORCEMENT OF THE LIABILITY WHICH IT HAD ALREADY
ESTABLISHED. 

ON THE BOARD'S ALLEGATIONS THERE CAN BE NO DOUBT OF THE LIABILITY OF
SOME OR ALL OF THE OTHER RESPONDENTS IN CONTEMPT.  WEINER, PRODUCTS AND
THE SUBSIDIARIES ARE ALLEGED TO HAVE BEEN ACTIVE PARTICIPANTS IN A
DELIBERATE SCHEME TO FRUSTRATE ENFORCEMENT OF ARTWARE'S LIABILITY
ESTABLISHED BY THE 1952 DECREE.  THE ALLEGED "RELATIONS AND BEHAVIORS"
OF THE SEVERAL RESPONDENTS ARE SUFFICIENT TO BRING THEM WITHIN THE
TERMS OF RULE 65(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  SEE REGAL
KNITWEAR CO. V. LABOR BOARD, 324 U.S. 9, 14-15. 

ACCORDINGLY, THE PETITION FOR CONTEMPT SHOULD HAVE BEEN SUSTAINED,
AND AN APPROPRIATE MOTION FOR DISCOVERY SHOULD HAVE BEEN GRANTED.  THE
GROUND HERE TAKEN TO SUSTAIN THE PETITION, OF COURSE, MAKES IT
UNNECESSARY TO CONSIDER THE BOARD'S ALTERNATIVE THEORY THAT ALL
RESPONDENTS CONSTITUTE A "SINGLE ENTERPRISE" AND AS SUCH ARE LIABLE IN
CONTEMPT FOR FAILURE TO PAY THE SPECIFIC AMOUNTS DECREED IN 1955.  THAT
GROUND SHOULD, OF COURSE, BE OPEN FOR CONSIDERATION BY THE COURT OF
APPEALS. 

FN1  THE RESPONDENTS' ANSWER DENIES THAT WEINER WAS IN FACT TREASURER
OF ARTWARE OR THE OTHER SUBSIDIARIES. 

FN2  THE QUESTION INVOLVED HERE WAS NOT PRESENTED FOR DECISION IN
NATIONAL LABOR RELATIONS BOARD V. NEW YORK MERCHANDISE CO., 134 F.2D
949.  TO THE EXTENT THAT THE OPINION IN THAT CASE IS INCONSISTENT WITH
THE PRINCIPLES HERE ANNOUNCED, IT IS OF COURSE DISAPPROVED. 

FN3  NATHANSON V. LABOR BOARD, 344 U.S. 25, IS NOT TO THE CONTRARY. 
WE THERE HELD SIMPLY THAT A BACK-PAY ORDER DOES NOT ESTABLISH A DEBT
OWING TO THE UNITED STATES AND THEREFORE ENTITLED TO PRIORITY UNDER
SEC. 64(A)(5) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 104(A)(5). 
..END :
























FORMAN V. UNITED STATES 361 U.S. 416 


NO. 43.  ARGUED NOVEMBER 19, 1959 - DECIDED FEBRUARY 23, 1960 - 261 F.2D
181, 264 F.2D 955, AFFIRMED. 


IN 1953, PETITIONER AND ONE SEIJAS WERE INDICTED FOR CONSPIRING FROM
1942 TO 1953 TO ATTEMPT TO EVADE INCOME TAXES OF SEIJAS AND HIS WIFE
FOR THE YEARS 1942 THROUGH 1945.  PETITIONER CONTENDED THAT THE
CONSPIRACY WAS CONSUMMATED IN 1946, WHEN THE RETURN FOR 1945 WAS FILED,
AND THAT PROSECUTION WAS BARRED BY THE 6-YEAR STATUTE OF LIMITATIONS;
AND HE REQUESTED AND OBTAINED INSTRUCTIONS THAT THE JURY MUST ACQUIT
HIM UNLESS IT FOUND THAT THERE WAS A SUBSIDIARY CONSPIRACY, CONTINUING
TO WITHIN 6 YEARS OF THE INDICTMENT, TO CONCEAL THE FIRST CONSPIRACY. 
HE WAS CONVICTED.  ON APPEAL, THE COURT OF APPEALS REVERSED ON THE
GROUND THAT A SUBSIDIARY CONSPIRACY CANNOT EXTEND THE STATUTE OF
LIMITATIONS WHICH HAD RUN AGAINST THE MAIN CONSPIRACY, AND IT ORDERED
THE CASE REMANDED WITH DIRECTIONS TO ENTER A JUDGMENT OF ACQUITTAL.  ON
REHEARING, HOWEVER, IT DECIDED THAT PETITIONER MIGHT HAVE BEEN TRIED ON
THE THEORY THAT THE ORIGINAL CONSPIRACY CONTINUED UNTIL 1952, AND IT
ORDERED THE CASE REMANDED FOR A NEW TRIAL.  HELD:  THIS DID NOT SUBJECT
PETITIONER TO DOUBLE JEOPARDY IN VIOLATION OF THE FIFTH AMENDMENT.  PP.
417-426. 

(A) THE THEORY ON WHICH THE CASE WAS TRIED AND UPON WHICH AN
INSTRUCTION SHOULD HAVE BEEN GIVEN WAS THAT THERE WAS A CONTINUING
CONSPIRACY FROM 1942 TO 1953 TO EVADE INCOME TAXES BY CONCEALING
INCOME, AND THAT THIS OBJECTIVE WAS NOT CONSUMMATED IN 1946 WHEN THE
1945 RETURN WAS FILED.  PP. 422-424. 

(B)  THE FACT THAT THE COURT OF APPEALS HAD ORIGINALLY ORDERED ENTRY
OF A JUDGMENT OF ACQUITTAL DID NOT DEPRIVE IT OF THE POWER TO AMEND
THAT DIRECTION ON REHEARING AND ORDER A NEW TRIAL, IN THE EXERCISE OF
ITS POWER UNDER 28 U.S.C. SEC. 2106 TO "REQUIRE SUCH FURTHER
PROCEEDINGS TO BE HAD AS MAY BE JUST UNDER THE CIRCUMSTANCES."  P.
424. 

(C)  PETITIONER'S CONVICTION HAVING BEEN SET ASIDE ON HIS APPEAL, HE
WAS NOT SUBJECTED TO DOUBLE JEOPARDY BY THE ACTION OF THE COURT OF
APPEALS IN ORDERING A NEW TRIAL, ON REHEARING, AFTER HAVING PREVIOUSLY
DIRECTED ENTRY OF A JUDGMENT OF ACQUITTAL.  SAPIR V. UNITED STATES, 348
U.S. 373, DISTINGUISHED.  PP. 425-426. 

FORMAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN THIS CRIMINAL CONSPIRACY CASE, PETITIONER RAISES QUESTIONS OF
DOUBLE JEOPARDY.  PETITIONER AND ONE SEIJAS, HIS FORMER PARTNER IN THE
PINBALL BUSINESS, WERE CONVICTED (FN1) OF CONSPIRACY TO COMMIT THE
OFFENSE OF WILLFULLY ATTEMPTING TO EVADE THE INDIVIDUAL INCOME TAXES OF
SEIJAS AND HIS WIFE, IN VIOLATION OF SEC. 145(B) OF THE INTERNAL
REVENUE CODE OF 1939, (FN2) AND OF FURNISHING FALSE BOOKS, RECORDS, AND
FINANCIAL STATEMENTS TO OFFICERS AND EMPLOYEES OF THE TREASURY
DEPARTMENT FOR THE PURPOSE OF CONCEALING THE TRUE INCOME TAX
LIABILITIES OF SEIJAS AND HIS WIFE, IN VIOLATION OF 18 U.S.C. SEC.
1001.  (FN3)  THE TRIAL WAS PRIOR TO OUR DECISION IN GRUNEWALD V.
UNITED STATES, 353 U.S. 391 (1957).  THE PETITIONER REQUESTED, AND THE
TRIAL JUDGE INCLUDED IN HIS CHARGE, LANGUAGE SIMILAR TO THAT GIVEN IN
THE CHARGE IN THE GRUNEWALD PROSECUTION DIRECTING THAT PETITIONER
SHOULD BE ACQUITTED UNLESS THE JURY FOUND THAT THE PARTNERS ENTERED
INTO A SUBSIDIARY CONSPIRACY, CONTINUING TO WITHIN SIX YEARS OF THE
INDICTMENT, TO CONCEAL THEIR CONSPIRACY TO ATTEMPT TO EVADE SEIJAS' AND
HIS WIFE'S TAXES.  AT THE TIME OF THE APPEAL, OUR GRUNEWALD OPINION HAD
COME DOWN.  CITING GRUNEWALD, THE COURT OF APPEALS REVERSED
PETITIONER'S CONVICTION AND REMANDED THE CASE WITH INSTRUCTIONS TO
ENTER A JUDGMENT OF ACQUITTAL.  259 F.2D 128.  ON REHEARING, HOWEVER,
THE COURT OF APPEALS DECIDED THAT "THE CASE MIGHT HAVE BEEN TRIED" ON
AN "ALTERNATIVE THEORY," NAMELY, THAT "CERTAIN OF THE OVERT ACTS LISTED
IN THE INDICTMENT AND CHARGED TO HAVE OCCURRED IN 1948, 1951 AND 1952,
INVOLVING FALSE STATEMENTS, COULD WELL HAVE BEEN IN FURTHERANCE OF AND
DURING A CONSPIRACY HAVING AS ITS OBJECTIVE NOT THE CONCEALMENT OF THE
CONSPIRATORS' CONSPIRACY BUT TAX EVASION."  261 F.2D 181, 183.  IT
MODIFIED ITS ORIGINAL ORDER FOR AN ACQUITTAL AND ENTERED ONE DIRECTING
A NEW TRIAL.  PETITIONER THEN CONTENDED THAT HAVING ONCE ORDERED HIS
ACQUITTAL, THE COURT OF APPEALS, BY DIRECTING A NEW TRIAL, VIOLATED THE
COMMAND OF THE FIFTH AMENDMENT THAT NO PERSON SHALL "BE SUBJECT FOR THE
SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB." 
PETITIONER'S MOTION FOR REHEARING WAS DENIED.  264 F.2D 955.  WE
GRANTED CERTIORARI.  359 U.S. 982.  WE AFFIRM THE ORDER DIRECTING A NEW
TRIAL. 

THE FACTS ARE DETAILED IN THE ORIGINAL OPINION OF THE COURT OF
APPEALS, 259 F.2D 128, AND IT IS SUFFICIENT HERE MERELY TO SUMMARIZE
THEM.  IN 1941 PETITIONER AND SEIJAS, A LAWYER, FORMED A PARTNERSHIP TO
ENGAGE IN THE OPERATION OF PINBALL MACHINES IN KITSAP COUNTY,
WASHINGTON.  RECEIPTS, LESS EXPENSES, FROM THE INDIVIDUAL MACHINES,
WERE TO BE DIVIDED EQUALLY BETWEEN THE PARTNERS AND THE LOCATION
OWNERS.  BEGINNING IN 1942 AND CONTINUING UNTIL DECEMBER 1945, HOWEVER,
THE PARTNERS ROBBED THE MACHINES BY EXTRACTING "HOLDOUT" MONEY FROM
THOSE LOCATED AT THE MORE PROFITABLE LOCATIONS.  THESE SUMS, WITHOUT
BEING SPLIT WITH THE LOCATION OWNERS, WERE DIVIDED BETWEEN THE
PARTNERS.  NONE OF THESE AMOUNTS WERE ENTERED ON THE BOOKS OF THE
PARTNERSHIP, NOR WERE THEY INCLUDED IN ITS TAX RETURNS.  SEIJAS
MAINTAINED DIARIES AND KEPT A RECORD OF THE AMOUNT OF "HOLDOUT" INCOME
THAT HE RECEIVED, BUT HE PAID NO TAX ON IT.  DURING THIS PERIOD, TAX
RETURNS OMITTING THE "HOLDOUT" INCOME WERE FILED EACH YEAR.  THE COURT
OF APPEALS FOUND THAT "THERE WAS ABUNDANT PROOF" OF PETITIONER'S
PARTICIPATION IN A CONSPIRACY TO "EVADE SEIJAS' INCOME TAXES FOR THE
YEARS 1942 THROUGH 1945" THROUGH CONCEALMENT OF THE "HOLDOUT" INCOME
DURING THAT PERIOD.  IT ALSO FOUND THAT "NUMEROUS FALSE STATEMENTS"
WERE MADE BY BOTH FORMAN AND SEIJAS IN FURTHERANCE OF THIS CONSPIRACY
AND WITHIN THE SIX-YEAR PERIOD IMMEDIATELY PRIOR TO THE INDICTMENT. 
THE RECORD SHOWS, AS THE COURT OF APPEALS INDICATED, THAT THE
CONCEALMENT OF THE "HOLDOUT" INCOME CONTINUED UNTIL SOON BEFORE THE
INDICTMENT, AT WHICH TIME SEIJAS TURNED OVER TO THE AGENTS HIS DIARIES
COVERING THE RECEIPT OF THIS INCOME FOR THE YEARS 1942-1945.  THE COURT
OF APPEALS, ON THE ORIGINAL SUBMISSION, HOWEVER, FOUND THAT THE CASE
WAS SUBMITTED TO THE JURY ON THE THEORY OF GRUNEWALD AS EXPOUNDED IN
233 F.2D 556, NAMELY, THAT A SUBSIDIARY CONSPIRACY TO CONCEAL THE MAIN
CONSPIRACY TO ATTEMPT TO EVADE SEIJAS' TAX MAY BE IMPLIED FROM
CIRCUMSTANTIAL EVIDENCE SHOWING THAT THE LATTER CONSPIRACY WAS KEPT A
SECRET.  THIS SUBSIDIARY CONSPIRACY WOULD MAKE THE PROSECUTION TIMELY
UNDER THE APPLICABLE STATUTE OF LIMITATIONS.  BUT THE COURT OF APPEALS
POINTED OUT THAT THE REVERSAL OF THAT CASE BY THIS COURT SOON AFTER THE
TRIAL OF PETITIONER GAVE IT "AN ADVANTAGE  ...  THAT THE TRIAL COURT
DID NOT HAVE" AND REQUIRED THE CONVICTION TO BE REVERSED AND THE CASE
REMANDED "WITH DIRECTIONS TO ENTER JUDGMENT FOR THE APPELLANT" FORMAN. 

ON REHEARING, (FN4) AS HERE, THE GOVERNMENT CONTENDED THAT THE
ESSENCE OF THE CONSPIRACY CHARGED IN THE INDICTMENT FILED NOVEMBER 19,
1953, WAS TO EVADE THE TAX ON THE "HOLDOUT" INCOME AND THAT AT LEAST
FIVE OVERT ACTS WERE COMMITTED WITHIN SIX YEARS OF THE RETURN OF THE
INDICTMENT FOR THE PURPOSE OF FURTHERING THAT CONSPIRACY TO EVADE. 
CONTRARY TO WHAT THE TRIAL COURT FOUND, THE GOVERNMENT SAID THAT THE
CONSPIRACY DID NOT END WITH THE FILING OF THE FALSE INCOME TAX RETURNS
IN THE YEARS 1943 THROUGH 1946, BUT EMBRACED THE SUBSEQUENT EFFORTS,
MADE DURING THE YEARS 1947 THROUGH 1952, TO EVADE THOSE TAXES.  THE
ONLY FLAW IN THE RECORD TO THE CONTRARY, IT CLAIMED, WAS THE ERRONEOUS
"SUBSIDIARY CONSPIRACY" INSTRUCTION, WHICH IT NOW POINTS OUT WAS
INJECTED THEREIN BY THE PETITIONER HIMSELF.  THE GOVERNMENT CONCLUDED
THAT THE INTERESTS OF JUSTICE REQUIRED THE ENTRY OF AN ORDER DIRECTING
A NEW TRIAL RATHER THAN A JUDGMENT OF ACQUITTAL.  ALTHOUGH FINDING THAT
THE GOVERNMENT CONCEDED "THAT THE CASE WAS SUBMITTED TO THE JURY ON AN
IMPERMISSIBLE THEORY," THE COURT OF APPEALS READ THE INDICTMENT AS
ALLEGING THAT THE CONSPIRACY WAS ONE "' TO VIOLATE  ...  SEC. 145(B) OF
THE INTERNAL REVENUE CODE  ...  BY FURNISHING OFFICERS AND EMPLOYEES OF
THE REVENUE DEPARTMENT FALSE BOOKS AND RECORDS AND FALSE FINANCIAL
STATEMENTS, AND BY MAKING FALSE STATEMENTS TO SUCH OFFICERS AND
EMPLOYEES, FOR THE PURPOSE OF CONCEALING FROM THE TREASURY DEPARTMENT
THEIR SHARE OF THE UNREPORTED HOLDOUT INCOME  ...  AND FOR THE PURPOSE
OF CONCEALING  ...  THE TRUE INCOME TAX LIABILITY OF AMADOR A.
SEIJAS.'"  261 F.2D, AT 182.  IT HELD THAT "THE CONSPIRACY CONTINUED
PAST THE FILING OF THE RETURNS" AND "THAT CERTAIN OF THE OVERT ACTS
LISTED IN THE INDICTMENT AND CHARGED TO HAVE OCCURRED IN 1948, 1951 AND
1952, INVOLVING FALSE STATEMENTS, COULD WELL HAVE BEEN IN FURTHERANCE
OF AND DURING A CONSPIRACY HAVING FOR ITS OBJECTIVE NOT THE CONCEALMENT
OF THE CONSPIRATORS' CONSPIRACY BUT TAX EVASION."  ID., AT 183.  IT,
THEREFORE, MODIFIED ITS OPINION "SO AS TO PROVIDE THAT THE JUDGMENT IS
REVERSED AND THE CAUSE REMANDED FOR A NEW TRIAL."  IBID.  THE
PETITIONER THEN RAISED HIS PLEA OF FORMER JEOPARDY, WHICH IS THE BASIS
OF HIS PETITION HERE.  HE SAYS THAT THE TRIAL COURT CORRECTLY FOUND
THAT THE CONSPIRACY ENDED WITH THE FILING OF THE LAST FALSE INCOME TAX
RETURN IN 1946.  SINCE THERE WAS NO DIRECT EVIDENCE OF THE EXISTENCE OF
A SUBSIDIARY CONSPIRACY TO CONCEAL THE CRIME OF ATTEMPTING TO EVADE,
THE TRIAL COURT, HE CONCLUDES, SHOULD HAVE SUSTAINED HIS MOTION TO
ACQUIT ON THAT GROUND.  WHEN THE COURT OF APPEALS HELD THAT THE TRIAL
COURT ERRED IN FAILING TO GRANT THE MOTION, PETITIONER ARGUES THAT IT
GAVE HIM A VESTED RIGHT TO AN ACQUITTAL, WHICH MATURED AT THE TIME HE
SO MOVED IN THE TRIAL COURT.  A NEW TRIAL, HE CONTENDS, WOULD THEREFORE
PLACE HIM IN DOUBLE JEOPARDY.  (FN5) 

THE GOVERNMENT NOW SAYS THAT THROUGH "INADVERTENCE" IT ALLOWED THE
CASE TO BE SUBMITTED TO THE JURY ON THE "IMPERMISSIBLE THEORY"
CONDEMNED IN OUR GRUNEWALD OPINION, 353 U.S., AT 399-406; AND THAT THE
TRIAL JUDGE WAS LED INTO ERROR BY THE REQUEST OF THE PETITIONER FOR AN
INSTRUCTION ON THE "SUBSIDIARY CONSPIRACY" THEORY, WHICH ERROR WAS
COMPOUNDED BY THE FAILURE OF THE GOVERNMENT TO OBJECT THERETO.  THIS
RESULTED, IT MAINTAINS, IN A GRUNEWALD INSTRUCTION BEING SADDLED ONTO A
CORRECT CHARGE.  IN VIEW OF THIS COMPLICATION, IT CONCLUDES THAT THE
JURY MIGHT WELL HAVE BASED ITS CONVICTION ON EITHER THEORY, AND A NEW
TRIAL WAS THEREFORE APPROPRIATE AND WOULD NOT PLACE PETITIONER IN
DOUBLE JEOPARDY. 

           I. 

WE BELIEVE THAT THERE WAS A MISCONSTRUCTION OF THE SCOPE OF THE
ALLEGED CONSPIRACY AND ITS DURACTION IN BOTH GRUNEWALD AND THE PRESENT
CASE.  IN GRUNEWALD THE INDICTMENT CHARGED A CONSPIRACY "TO FIX"
CRIMINAL TAX CASES AND TO CONCEAL THE ACTS OF THE CONSPIRATORS.  THAT
CASE WAS SUBMITTED TO THE JURY ON THE THEORY THAT "THE INDICTMENT
ALLEGES THAT THE CONSPIRACY COMPREHENDED WITHIN IT A CONSPIRACY TO
CONCEAL THE TRUE FACTS FROM INVESTIGATION  ...  ."  DID THE CONSPIRACY
END WHEN THE "NO PROSECUTION" RULINGS WERE ISSUED, THE COURT CHARGED,
"OR WAS A PART OF THE CONSPIRACY A CONTINUING AGREEMENT TO CONCEAL THE
ACTS DONE PURSUANT THERETO?"  THE EFFECT OF THE CHARGE WAS THAT IF
THERE WAS SUCH A CONTINUING AGREEMENT, THEN THE PROSECUTION WAS
TIMELY.  IT APPEARED TO US THAT THE CASE SHOULD HAVE BEEN SUBMITTED TO
THE JURY ON THE THEORY THAT THE CENTRAL OBJECT OF THE CONSPIRACY WAS
NOT MERELY TO OBTAIN THE "NO PROSECUTION" RULINGS, BUT RATHER TO
IMMUNIZE THE TAXPAYERS COMPLETELY FROM PROSECUTION FOR TAX EVASION. 
THE EVIDENCE SUPPORTED SUCH A THEORY.  WE SAID, HOWEVER, THAT, SINCE
THIS THEORY WAS NOT ADQUATELY SUBMITTED TO THE JURY, THE CASE SHOULD BE
REMANDED FOR A NEW TRIAL RATHER THAN AFFIRMED. 

IN PETITIONER'S CASE THE INDICTMENT CHARGED HIM AND SEIJAS WITH
CONSPIRACY, EXTENDING FROM 1942 TO 1953, TO ATTEMPT TO EVADE THE INCOME
TAXES OF SEIJAS AND HIS WIFE FOR THE PERIOD 1942-1945.  UNLIKE
GRUNEWALD, THE INDICTMENT DID NOT ALLEGE THAT ONE OF THE OBJECTS OF THE
CONSPIRACY WAS TO CONCEAL THE ACTS OF THE CONSPIRATORS.  THE INDICTMENT
SPECIFICALLY ALLEGED THAT THE CONSPIRACY EXTENDED FROM 1942 TO 1953
AND, OF THE 33 OVERT ACTS CHARGED, SOME WERE COMMITTED AS LATE AT 1953,
THE YEAR OF THE INDICTMENT.  THIS LANGUAGE, IT MUST BE ADMITTED,
CERTAINLY LENDS STRONG SUPPORT TO THE GOVERNMENT'S THEORY OF THE CASE. 
THE PETITIONER SAYS THAT THE THEORY ON WHICH THE CASE WAS SUBMITTED TO
THE JURY WAS THAT THE CONSPIRACY TO ATTEMPT TO EVADE THE TAXES "WAS
CONSUMMATED" WHEN THE INCOME TAX RETURNS FOR 1945 WERE FILED AND THAT,
UNLESS THE JURY FOUND "A SUBSIDIARY CONSPIRACY" TO CONCEAL THE
CONSPIRACY TO ATTEMPT TO EVADE THE TAXES, THE "VERDICT WOULD HAVE TO BE
NOT GUILTY."  THAT WAS THE THEORY HE REQUESTED, BUT THE CHARGE DIFFERS
LITTLE FROM THE GRUNEWALD ONE.  IN FACT IT APPEARS TO HAVE BEEN
PATTERNED AFTER THE GRUNEWALD CHARGE.  THE CORRECT THEORY, WE BELIEVE,
WAS INDICATED BY THE INDICTMENT, I.E., THAT THE CONSPIRACY WAS A
CONTINUING ONE EXTENDING FROM 1942 TO 1953 AND ITS PRINCIPAL OBJECT WAS
TO EVADE THE TAXES OF SEIJAS AND HIS WIFE FOR 1942-1945, INCLUSIVE, BY
CONCEALING THEIR "HOLDOUT" INCOME.  THIS OBJECT WAS NOT ATTAINED WHEN
THE TAX RETURNS FOR 1945 CONCEALING THE "HOLDOUT" INCOME WERE FILED. 
AS WAS SAID IN GRUNEWALD, THIS WAS BUT THE FIRST STEP IN THE PROCESS OF
EVASION.  THE CONCEALMENT OF THE "HOLDOUT" INCOME MUST CONTINUE IF THE
EVASION IS TO SUCEED.  IT MUST CONTINUE UNTIL ACTION THEREON IS BARRED
AND THE EVASION PERMANENTLY EFFECTED.  IN THIS REGARD, THE INDICTMENT
ALLEGED THAT THE CONSPIRACY TO ATTEMPT SUCH EVASION ACTUALLY DID
CONTINUE UNTIL 1953, WHEN SEIJAS REVEALED THE "HOLDOUT" INCOME FOR THE
FIRST TIME.  IT THEREFORE APPEARS THAT THE "SUBSIDIARY CONSPIRACY"
THEORY COVERED BY PETITIONER'S REQUESTED CHARGE HAD NO PLACE IN THE
CASE AND SHOULD NOT HAVE BEEN GIVEN.  THERE WAS NO SUCH CONSPIRACY
ALLEGED OR PROVEN.  IN VIEW OF THE POSSIBLE CONFUSION RESULTING, IT WAS
ENTIRELY APPROPRIATE FOR A NEW TRIAL TO BE ORDERED.  PETITIONER'S
RAISING THIS GROUND ON APPEAL, RATHER THAN SPECIFICALLY ASSERTING IT IN
HIS MOTION FOR NEW TRIAL, HAD NO EFFECT ON THE POWER OF THE COURT OF
APPEALS TO CORRECT THE ERROR. 

PETITIONER INSISTS, HOWEVER, THAT THE FATAL DIFFERENCE BETWEEN THE
GRUNEWALD CHARGE AND THE ONE HERE IS THAT HERE THE "ALTERNATIVE THEORY"
WAS NOT SUBMITTED TO THE JURY.  EVEN IF WE AGREED WITH THIS POINT, WE
DO NOT BELIEVE THAT IT WOULD BE RELEVANT TO OUR CONCLUSION.  THE
INDICTMENT WAS BASED ON ONE CONTINUING CONSPIRACY TO EVADE SEIJAS'
TAX.  THE EVIDENCE SUPPORTED IT AND, IF THE PETITIONER HAD NOT INJECTED
THE INFECTED LANGUAGE INTO THE CHARGE, THIS CLEARLY WOULD HAVE BEEN THE
THEORY SUBMITTED TO THE JURY.  ITS INCLUSION DID MAKE THE CHARGE
AMBIGUOUS AND THE COURT OF APPEALS, HAVING POWER TO DIRECT "SUCH
CIRCUMSTANCES," BELIEVED A NEW TRIAL "APPROPRIATE," 28 U.S.C. SEC.
2106, AND SO ORDERED.  PETITIONER CONCEDES THAT THIS WOULD HAVE BEEN
APPROPRIATE IF SUCH ACTION HAD BEEN TAKEN BY THE COURT OF APPEALS UPON
ORIGINAL SUBMISSION; BUT HE SAYS THAT, ONCE HAVING ORDERED THE ENTRY OF
AN ACQUITTAL JUDGMENT, IT LOST POWER TO AMEND THAT DIRECTION ON
REHEARING AND ORDER A NEW TRIAL.  THIS WOULD SUBJECT HIM, HE SAYS, TO
DOUBLE JEOPARDY.  WE THINK NOT. 
II. 

IT IS ELEMENTARY IN OUR LAW THAT A PERSON CAN BE TRIED A SECOND TIME
FOR AN OFFENSE WHEN HIS PRIOR CONVICITON FOR THAT SAME OFFENSE HAS BEEN
SET ASIDE BY HIS APPEAL.  UNITED STATES V. BALL, 163 U.S. 662, 672
(1896).  SEE ALSO GREEN V. UNITED STATES, 355 U.S. 184, 189 (1957),
WHICH EXPRESSLY AFFIRMED THE PRINCIPLE OF THE BALL CASE.  PETITIONER
SAYS THAT HE DOES NOT COME UNDER THAT RULE BECAUSE HE MOVED FOR A
JUDGMENT OF ACQUITTAL ON THE BASIS OF A LACK OF EVIDENCE, AND THAT HIS
RIGHT TO ACQUITTAL "MATURED" AT THAT TIME.  A NEW TRIAL, HOWEVER, WAS
ONE OF PETITIONER'S REMEDIES.  AS WE SAID IN BRYAN V. UNITED STATES,
338 U.S. 552, 560 (1950), WHERE ONE SEEKS REVERSAL OF HIS CONVICTION,
"ASSIGNING A NUMBER OF ALLEGED ERRORS ON APPEAL, INCLUDING DENIAL OF
HIS MOTION FOR JUDGMENT OF ACQUITTAL  ...  'THERE IS NO DOUBLE JEOPARDY
UPON A NEW TRIAL.'"  EVEN THOUGH PETITIONER BE RIGHT IN HIS CLAIM THAT
HE DID NOT REQUEST A NEW TRIAL WITH RESPECT TO THE PORTION OF THE
CHARGE DEALING WITH THE STATUTE OF LIMITATIONS, STILL HIS PLEA OF
DOUBLE JEOPARDY MUST FAIL.  UNDER 28 U.S.C. SEC. 2106, THE COURT OF
APPEALS HAS FULL POWER TO GO BEYOND THE PARTICULAR RELIEF SOUGHT.  SEE
BALL AND OTHER CASES, SUPRA.  NOR DOES SAPIR V. UNITED STATES, 348 U.S.
373 (1955), REQUIRE A DIFFERENT CONCLUSION, AS PETITIONER CLAIMS.  THE
COURT OF APPEALS THERE, HOLDING THE EVIDENCE INSUFFICIENT TO CONVICT,
HAD FIRST REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS THE
INDICTMENT, AND LATER, ON THE GOVERNMENT'S MOTION, HAD REMANDED INSTEAD
FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE.  THIS COURT
HELD THAT THE ORIGINAL ORDER DIRECTING THE INDICTMENT TO BE DISMISSED
WAS THE CORRECT ONE, AND REFUSED TO PASS ON QUESTIONS PRESENTED BY THE
ORDER DIRECTING A NEW TRIAL. 

WHILE PETITIONER CONTENDS THAT HERE THE ACTION OF THE COURT OF
APPEALS ON REHEARING WAS BASED ON NEW EVIDENCE, AS IN SAPIR, THIS IS
INCORRECT.  HERE THERE WAS NO LACK OF EVIDENCE IN THE RECORD.  AS THE
COURT OF APPEALS POINTED OUT, "THE JURY WAS SIMPLY NOT PROPERLY
INSTRUCTED.'  264 F.2D, AT 956.  ON THE OTHER HAND, THE ORDER TO
DISMISS IN SAPIR WAS BASED ON THE INSUFFICIENCY OF THE EVIDENCE, WHICH
COULD BE CURED ONLY BY THE INTRODUCTION OF NEW EVIDENCE, WHICH THE
GOVERNMENT ASSURED THE COURT WAS AVAILABLE.  MOREOVER, SAPIR MADE NO
MOTION FOR A NEW TRIAL IN THE DISTRICT COURT, WHILE HERE PETITIONER
FILED SUCH A MOTION.  THAT WAS A DECISIVE FACTOR IN SAPIR'S CASE.  SEE
CONCURRING OPINION, 348 U.S., AT 374.  FURTHERMORE, THE POWER OF THE
COURT OF APPEALS TO REVISE ITS ORIGINAL JUDGMENT AND ORDER THE NEW
TRIAL ON REHEARING WAS NOT QUESTIONED IN SAPIR. 

WE BELIEVE PETITIONER OVERLOOKS THAT, WHEN HE OPENED UP THE CASE BY
APPEALING FROM HIS CONVICTION, HE SUBJECTED HIMSELF TO THE POWER OF THE
APPELLATE COURT TO DIRECT SUCH "APPROPRIATE" ORDER AS IT THOUGHT "JUST
UNDER THE CIRCUMSTANCES."  ITS ORIGINAL DIRECTION WAS SUBJECT TO
REVISION ON REHEARING.  THE ORIGINAL OPINION WAS ENTIRELY INTERLOCUTORY
AND NO MANDATE WAS EVER ISSUED THEREON.  IT NEVER BECAME FINAL AND WAS
SUBJECT TO FURTHER ACTION ON REHEARING.  DEPARTMENT OF BANKING V. PINK,
317 U.S. 264 (1942).  IN PINK, WE SAID THAT THE PETITION ON REHEARING
"OPERATES TO SUSPEND THE FINALITY OF THE  ...  COURT'S JUDGMENT,
PENDING THE COURT'S FURTHER DETERMINATION WHETHER THE JUDGMENT SHOULD
BE MODIFIED SO AS TO ALTER ITS ADJUDICATION OF THE RIGHTS OF THE
PARTIES."  317 U.S., AT 266.  TO HOLD OTHERWISE WOULD DEPRIVE THE
GOVERNMENT OF THE RIGHT TO FILE A PETITION FOR CERTIORARI HERE IN
CRIMINAL CASES DECIDED FAVORABLY TO THE DEFENDANT IN THE COURT OF
APPEALS, FOR SUCH A PETITION MIGHT BE ATTACHED AS A PROHIBITED APPEAL
BY THE GOVERNMENT ON A MOTION FOR A NEW TRIAL.  IT WOULD BE TANTAMOUNT
TO A VERDICT OF ACQUITTAL AT THE HANDS OF THE JURY, NOT SUBJECT TO
REVIEW BY MOTION FOR REHEARING, APPEAL, OR CERTIORARI IN THIS COURT. 
WE CANNOT SUBSCRIBE TO SUCH A THEORY.  AFFIRMED. 

FN1  SEIJAS PLEADED GUILTY AND TESTIFIED FOR THE GOVERNMENT. 

FN2  "SEC.  145.  PENALTIES  ...  (B) FAILURE TO COLLECT AND PAY OVER
TAX, OR ATTEMPT TO DEFEAT OR EVADE TAX.  - ANY PERSON REQUIRED UNDER
THIS CHAPTER TO COLLECT, ACCOUNT FOR, AND PAY OVER ANY TAX IMPOSED BY
THIS CHAPTER, WHO WILLFULLY FAILS TO COLLECT OR TRUTHFULLY ACCOUNT FOR
AND PAY OVER SUCH TAX, AND ANY PERSON WHO WILLFULLY ATTEMPTS IN ANY
MANNER TO EVADE OR DEFEAT ANY TAX IMPOSED BY THIS CHAPTER OR THE
PAYMENT THEREOF, SHALL, IN ADDITION TO OTHER PENALTIES PROVIDED BY LAW,
BE GUILTY OF A FELONY AND, UPON CONVICTION THEREOF, BE FINED NOT MORE
THAN $10,000, OR IMPRISONED FOR NOT MORE THAN FIVE YEARS, OR BOTH,
TOGETHER WITH THE COSTS OF PROSECUTION." 

FN3  "SEC.  1001.  STATEMENTS OR ENTRIES GENERALLY.  WHOEVER, IN ANY
MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE
UNITED STATES KNOWINGLY AND WILLFULLY FALSIFIES, CONCEALS OR COVERS UP
BY ANY TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKES ANY FALSE,
FICTITIOUS OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKES OR
USES ANY FALSE WRITING OR DOCUMENT KNOWING THE SAME TO CONTAIN ANY
FALSE, FICTITIOUS OR FRAUDULENT STATEMENT OR ENTRY, SHALL BE FINED NOT
MORE THAN $10,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH." 

FN4  ALTHOUGH PETITIONER CONTENDS THAT THE PETITION FOR REHEARING
WAS IN FACT A MOTION FOR A NEW TRIAL, THIS IS NOT TRUE.  THE PURPOSE OF
A PETITION FOR REHEARING IS TO POINT OUT ERROR IN THE ORIGINAL
JUDGMENT.  HERE THE GOVERNMENT POINTED OUT THAT THE COURT OF APPEALS
APPLIED THE WRONG THEORY (THE GRUNEWALD THEORY INSTEAD OF THE
CONTINUING CONSPIRACY THEORY). 

FN5  PETITIONER ALSO ARGUES THAT THERE IS INSUFFICIENT EVIDENCE IN
THE RECORD TO SUPPORT A CONVICTION BASED UPON THE "ALTERNATIVE
THEORY."  HE URGES THAT GRUNEWALD ESTABLISHED THAT, REGARDLESS OF THE
NATURE OF THE CHARGE, THERE MUST BE "DIRECT EVIDENCE  ...  TO SHOW  ...
AN EXPRESS ORIGINAL AGREEMENT AMONG THE CONSPIRATORS TO CONTINUE TO
ACT IN CONCERT IN ORDER TO COVER UP, FOR THEIR OWN SELF-PROTECTION,
TRACES OF THE CRIME AFTER ITS COMMISSION."  353 U.S., AT 404.  THIS
STATEMENT, HOWEVER, HAD REFERENCE TO A SUBSIDIARY CONSPIRACY TO
CONCEAL, NOT TO A CONTINUING ONE.  IN GRUNEWALD WE WERE NOT REQUIRED TO
DECIDE WHETHER A CONVICTION UNDER A PROPER CHARGE COULD BE SUPPORTED
WHERE THE ONLY EVIDENCE DURING THE PERIOD WITHIN THE STATUTE OF
LIMITATIONS WAS INDEPENDENT ACTS OF CONCEALMENT, SINCE MORE WAS PRESENT
THERE.  SEE 353 U.S., AT 409, N. 23.  NOR IS THAT NECESSARY HERE, SINCE
THE COURT OF APPEALS' DETERMINATION THAT THE EVIDENCE OF RECORD COULD
SUSTAIN A CONVICTION UNDER A CORRECT INSTRUCTION WAS BASED UPON
EVIDENCE IN ADDITION TO INDEPENDENT ACTS OF CONCEALMENT.  SEE 259 F.2D,
AT 132-134, AND 261 F.2D, AT 183.  WE CANNOT SAY THAT THIS
DETERMINATION WAS ERRONEOUS. 

MR. JUSTICE HARLAN, CONCURRING. 

I FEEL IT NECESSARY TO ADD A FEW WORDS TO MAKE CLEAR THE BASIS ON
WHICH I JOIN IN THE COURT'S JUDGMENT. 

1.  AS I READ THE RECORD I BELIEVE THE CASE IS FAIRLY TO BE VIEWED AS
HAVING BEEN SUBMITTED TO THE JURY ONLY ON THE SUBSIDIARY-CONSPIRACY
THEORY.  FOR ALTHOUGH THERE ARE PASSAGES IN THE TRIAL COURT'S CHARGE
WHICH CAN BE SAID TO HAVE PROCEEDED ON A CONTINUING-CONSPIRACY THEORY,
THESE PASSAGES, TAKING THE CHARGE AS A WHOLE, ARE, IN MY VIEW, TOO
AMBIGUOUS TO JUSTIFY OUR SAYING THAT THE JURY MUST HAVE UNDERSTOOD THAT
IT COULD ALSO CONSIDER THE CASE ON THAT BASIS. 

2.  I DO NOT THINK THAT BECAUSE OF ITS OMISSION TO OBJECT TO THE
TRIAL COURT'S FAILURE TO GIVE A CONTINUING-CONSPIRACY CHARGE, THE
GOVERNMENT WAS PRECLUDED, UNDER RULE 30 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, FROM RAISING THAT POINT ON APPEAL.  THAT RULE
PROVIDES: 

"NO PARTY MAY ASSIGN AS ERROR ANY PORTION OF THE CHARGE OR OMISSION
THEREFROM UNLESS HE OBJECTS THERETO BEFORE THE JURY RETIRES TO CONSIDER
ITS VERDICT, STATING DISTINCTLY THE MATTER TO WHICH HE OBJECTS AND THE
GROUNDS OF HIS OBJECTION." 

IN MY VIEW THE RULE HAS NO APPLICATION HERE.  ACCEPTING, AS I DO,
PETITIONER'S CLAIM THAT THE CHARGE DID NOT INCLUDE A CONTINUING
CONSPIRACY THEORY, IT ERRED IN THE GOVERNMENT'S FAVOR.  I CANNOT
BELIEVE THAT RULE 30 REQUIRES THE PARTY FAVORED BY AN ERRONEOUS CHARGE
TO POINT OUT TO THE COURT WHAT THE CORRECT CHARGE WOULD BE IF ITS
DECISION WERE TO BE REVERSED ON APPEAL.  FURTHERMORE, SINCE OUR OPINION
IN THE GRUNEWALD CASE, 353 U.S. 391, WAS NOT YET AVAILABLE TO THE
PARTIES OR THE COURT, THE CHARGE UNDOUBTEDLY APPEARED CORRECT TO BOTH
SIDES.  THE GOVERNMENT WAS NO MORE CULPABLE FOR NOT CHALLENGING IT THAN
PETITIONER WAS FOR REQUESTING IT.  NOR DOES THE GOVERNMENT'S REQUEST
FOR A NEW TRIAL IN THE COURT OF APPEALS CONSTITUTE A CROSS-APPEAL.  IT
DID NOT, AND COULD NOT, SEEK A RESULT MORE FAVORABLE TO ITSELF THAN
THAT REACHED BY THE TRIAL COURT; RATHER, IT SIMPLY OPPOSED THE RELIEF
FOR WHICH PETITIONER CONTENDED. 

3.  I THINK THE RECORD SUSTAINS PETITIONER'S CONTENTION THAT HE DID
NOT, EITHER IN THE TRIAL COURT OR IN THE COURT OF APPEALS, REQUEST A
NEW TRIAL WITH RESPECT TO THE PORTION OF THE CHARGE DEALING WITH THE
STATUTE OF LIMITATIONS.*  HE IS SUBJECT TO RETRIAL SOLELY BECAUSE HE
APPEALED HIS CONVICTION AND BECAUSE, IN THE CIRCUMSTANCES DISCLOSED BY
THIS RECORD, SUCH RELIEF WAS JUST AND APPROPRIATE UNDER 28 U.S.C. SEC.
2106.  THE BALL, GREEN, AND BRYAN CASES, CITED IN THE COURT'S OPINION,
ANTE, P. 425, ESTABLISH THAT THE RIGHT OF AN APPELLATE COURT TO ORDER A
NEW TRIAL DOES NOT TURN ON THE RELIEF REQUESTED BY THE DEFENDANT, AND
THE SAPIR CASE DOES NOT SUGGEST SUCH A DISTINCTION. 

*IT APPEARS THAT WHILE PETITIONER'S POST-TRIAL MEMORANDUM ASSIGNED
THE SUFFICIENTY OF THE EVIDENCE IN ROUTINE FASHION AS ONE OF THE
GROUNDS FOR A NEW TRIAL, HE RELIED IN THE TRIAL COURT ENTIRELY ON THE
GROUND OF NEWLY DISCOVERED EVIDENCE, AND IN THE COURT OF APPEALS ON
THAT GROUND PLUS ERRONEOUS ADMISSION OF EVIDENCE AND CERTAIN ERRORS IN
THE CHARGE NOT HERE RELEVANT. 

4.  SINCE THE COURT OF APPEALS HELD ONLY THAT THE CASE MIGHT HAVE
BEEN TRIED ON A CONTINUING-CONSPIRACY THEORY, I EXPRESS NO OPINION ON
THE PERMISSIBLE DURATION OF A CONSPIRACY TO VIOLATE SEC. 145(B) OR ON
THE SUFFICIENCY OF THE EVIDENCE ADDUCED TO PROVE ITS CONTINUATION. 
THOSE QUESTIONS SHOULD BE RESOLVED IN FURTHER PROCEEDINGS. 

MR. JUSTICE WHITTAKER, CONCURRING. 

I JOIN THE COURT'S OPINION BUT DESIRE TO ADD A WORD.  MR. JUSTICE
CLARK'S CLEAR, FULL, AND ACCURATE STATEMENT OF THE FACTS DEMONSTRATES
ERRORS BY NEARLY EVERYONE HAVING TO DO WITH THE CASE IN THE LOWER
COURTS EXCEPT THE GOVERNMENT; YET IT LOST THE CASE ON APPEAL. 

PETITIONER, THOUGH NOT CHARGED BY THE INDICTMENT WITH A "SUBSIDIARY
CONSPIRACY," NEVERTHELESS ASKED, AND INDUCED THE COURT TO GIVE IN HIS
VERY WORDS, A CHARGE TO THE JURY SAYING THAT UNLESS THEY FOUND A
"SUBSIDIARY CONSPIRACY" THEY SHOULD ACQUIT HIM.  THERE BEING NEITHER
CHARGE IN THE INDICTMENT NOR EVIDENCE IN THE RECORD OF "SUBSIDIARY
CONSPIRACY," THE REQUESTED AND OBTAINED CHARGE TO THE JURY AMOUNTED TO
A VIRTUAL DIRECTION TO ACQUIT.  AND IF THE JURY, IN OBEDIENCE TO THAT
CHARGE, HAD ACQUITTED, ITS VERDICT WOULD, OF COURSE, HAVE ENDED THE
CASE.  THEREFORE, PETITIONER, BY REQUESTING AND INDUCING THE COURT TO
GIVE THIS ERRONEOUS CHARGE, GOT MUCH MORE THAN HE WAS ENTITLED TO UNDER
THE LAW.  YET, HE CLAIMED IN THE COURT OF APPEALS THAT THIS VERY
CHARGE, BECAUSE UNSUPPORTED BY EVIDENCE, WAS ERRONEOUS AND REQUIRED AN
OUTRIGHT REVERSAL.  THE COURT OF APPEALS, THOUGH FINDING ADEQUATE
EVIDENCE TO SUPPORT THE INDICTMENT, FIRST TOOK THAT VIEW.  IT SEEMS
PLAIN TO ME THAT PETITIONER, HAVING ASKED AND OBTAINED AN ERRONEOUS BUT
FAR MORE FAVORABLE CHARGE THAN HE WAS ENTITLED TO, CERTAINLY INVITED
THE ERROR, BENEFITED BY IT, AND SURELY MAY NOT BE HEARD TO ATTACK IT AS
PREJUDICIAL TO HIM, ESPECIALLY WHEN, AS SEEMS QUITE PLAIN, IT WAS
PREJUDICIAL ONLY TO THE GOVERNMENT.  I REALIZE THERE IS NO PROFIT IN
DECRYING A SPENT TRANSACTION, BUT I CANNOT RESIST OBSERVING THE
OBVIOUS, NAMELY, THAT IN THESE CIRCUMSTANCES, THE LAW REQUIRED
AFFIRMANCE OF THE JUDGMENT. 

AFTER THE COURT OF APPEALS HAD WRITTEN ITS ORIGINAL OPINION
REVERSING, THE GOVERNMENT, IN AN EFFORT TO SALVAGE THE CASE, TIMELY
MOVED FOR A REHEARING, SAYING, IN EFFECT: "PERHAPS, WE WERE IN ERROR IN
NOT OBJECTING TO THE CHARGE REQUESTED BY THE ACCUSED, AND GIVEN BY THE
COURT TO THE JURY, ON 'SUBSIDIARY CONSPIRACY,' BUT WE SHOULD AT LEAST
HAVE AN OPPORTUNITY TO RETRY THE CASE."  THE COURT OF APPEALS THEN
AGREED WITH THE GOVERNMENT'S FORCED CONTENTION, AND ACCORDINGLY
MODIFIED ITS OPINION AND REMANDED THE CASE FOR A NEW TRIAL.  PETITIONER
COMPLAINS OF THIS, URGING THAT THE COURT'S ORIGINAL OPINION "ACQUITTED"
HIM, AND THAT TO TRY HIM AGAIN WOULD VIOLATE THE FIFTH AMENDMENT'S
PROHIBITION AGAINST DOUBLE JEOPARDY.  THAT CONTENTION, IT SEEMS TO ME,
IS TOTALLY DEVOID OF MERIT.  THE COURT OF APPEALS RENDERED BUT ONE
JUDGMENT IN THE CASE, AND IT WAS ONE REMANDING FOR A NEW TRIAL. 
PETITIONER, INSTEAD OF COMPLAINING THAT HE WAS GIVEN ONLY A NEW TRIAL,
SHOULD BE THANKFUL THAT HIS CONVICTION WAS NOT AFFIRMED. 
..END :






















UNITED STATES V. MERSKY 361 U.S. 431 


NO. 31.  ARGUED NOVEMBER 10, 1959 - DECIDED FEBRUARY 23, 1960 -
AFFIRMED. 


AN INFORMATION FILED IN A FEDERAL DISTRICT COURT CHARGED APPELLEES
WITH HAVING VIOLATED 19 U.S.C. SEC. 1304 BY REMOVING FROM TEN VIOLINS
IMPORTED FROM THE SOVIET ZONE OF GERMANY, AFTER THEIR IMPORTATION BUT
PRIOR TO THEIR SALE TO ULTIMATE PURCHASERS, LABELS READING
"GERMANY/USSR OCCUPIED," WITH INTENT TO CONCEAL THE IDENTITY OF THE
COUNTRY OF ORIGIN.  THE DISTRICT COURT DISMISSED THE INFORMATION ON THE
GROUND THAT REMOVAL OF THE LABELS DID NOT VIOLATE SEC. 1304, BECAUSE
THE APPLICABLE REGULATION APPEARED TO REQUIRE THE SOVIET ZONE MARKING
FOR TARIFF PURPOSES ONLY, RATHER THAN TO APPRISE THE ULTIMATE
PURCHASERS OF THE PLACE OF ORIGIN, AND ALSO THAT THE REGULATION WAS NOT
SUFFICIENTLY CLEAR AND UNAMBIGUOUS TO JUSTIFY A CRIMINAL PROSECUTION. 
THE GOVERNMENT APPEALED TO THE COURT OF APPEALS, WHICH HELD THAT THE
ORDER OF DISMISSAL WAS APPEALABLE DIRECTLY TO THIS COURT UNDER 18
U.S.C. SEC.  3731 BECAUSE (A) THE DISTRICT COURT'S INTERPRETATION OF
THE REGULATION WAS TANTAMOUNT TO A CONSTRUCTION OF THE STATUTE UPON
WHICH THE INFORMATION WAS FOUNDED, AND (B) THE EFFECT OF THE DISMISSAL
WAS TO SUSTAIN A MOTION IN BAR.  ACCORDINGLY, THE COURT OF APPEALS
CERTIFIED THE CASE TO THIS COURT.  HELD: 

1.  THE CHARGES IN THE INFORMATION ARE FOUNDED ON SEC. 1304 AND THE
REGULATIONS THEREUNDER; THE INFORMATION WAS DISMISSED SOLELY BECAUSE
ITS ALLEGATIONS DID NOT STATE AN OFFENSE UNDER SEC. 1304, AS AMPLIFIED
BY THE REGULATIONS; THE STATUTE AND REGULATIONS ARE SO INEXTRICABLY
INTERTWINED THAT AN INTERPRETATION OF THE REGULATIONS NECESSARILY IS A
CONSTRUCTION OF THE STATUTE; AND THE CASE WAS PROPERLY CERTIFIED TO
THIS COURT BY THE COURT OF APPEALS UNDER 18 U.S.C. SEC. 3731.  PP. 434
438. 

2.  THE REGULATION HERE INVOLVED APPEARS TO BE AIMED AT THE
COLLECTION OF DUTIES, RATHER THAN THE PROTECTION OF ULTIMATE PURCHASERS
IN THE UNITED STATES; IT IS NOT SUFFICIENTLY CLEAR AND UNAMBIGUOUS TO
FURNISH A BASIS FOR A CRIMINAL PROSECUTION FOR VIOLATION OF 19 U.S.C.
SEC. 1304; AND THE INFORMATION WAS PROPERLY DISMISSED.  PP. 438-441. 

UNITED STATES V. MERSKY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE CONGRESS HAS PROVIDED IN THE TARIFF ACT OF 1930, 46 STAT. 590, AS
AMENDED, THAT IMPORTED ARTICLES BE MARKED TO INDICATE TO AN ULTIMATE
PURCHASER IN THE UNITED STATES THE ENGLISH NAME OF THE COUNTRY OF
ORIGIN.  19 U.S.C. SEC. 1304.  (FN1)  PURSUANT TO THE ACT, THE
SECRETARY OF THE TREASURY ADOPTED IMPLEMENTING REGULATIONS.  THIS CASE
TESTS THE APPLICATION OF THESE PROVISIONS TO THE IMPORTATION OF 10
VIOLINS FROM THE SOVIET ZONE OF GERMANY.  APPELLEES WERE CHARGED WITH
REMOVING THE LABELS FROM THE VIOLINS WITH INTENT TO CONCEAL FROM THE
ULTIMATE PURCHASERS IN THE UNITED STATES THE IDENTITY OF THE VIOLINS'
COUNTRY OF ORIGIN.  THE DISTRICT COURT DISMISSED THE INFORMATION,
HOLDING THAT THE CHANGING OF THE LABELS DID NOT VIOLATE THE ACT BECAUSE
THE APPLICABLE REGULATION APPEARED TO REQUIRE THE SOVIET ZONE MARKING
ONLY FOR TARIFF PURPOSES RATHER THAN TO APPRISE THE ULTIMATE PURCHASERS
OF THE PLACE OF ORIGIN.  IN ANY EVENT, THE COURT FOUND, THE INTENT OF
THE REGULATION WAS NOT "MANIFESTED IN A MANNER SUFFICIENTLY CLEAR AND
UNAMBIGUOUS TO JUSTIFY A CRIMINAL PROSECUTION."  ON APPEAL BY THE
GOVERNMENT, THE COURT OF APPEALS HELD THAT THE DISTRICT COURT'S
OPINION, INTERPRETING THE REGULATION, WAS TANTAMOUNT TO A CONSTRUCTION
OF THE STATUTE UPON WHICH THE INFORMATION WAS FOUNDED; AND HENCE, UNDER
THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 3731, THE ORDER OF DISMISSAL
WAS APPEALABLE DIRECTLY TO THIS COURT RATHER THAN TO THE COURT OF
APPEALS.  (FN2)  IT WAS ALSO OF THE OPINION THAT THE EFFECT OF THE
DISMISSAL WAS TO SUSTAIN A MOTION IN BAR, WHICH, UNDER SEC. 3731,
LIKEWISE REQUIRED APPEAL TO THIS COURT.  ACCORDINGLY, IT CERTIFIED THE
APPEAL, 261 F.2D 40, AND WE POSTPONED THE QUESTION OF JURISDICTION TO A
HEARING ON THE MERITS, 359 U.S. 951.  WE HAVE CONCLUDED TO ACCEPT THE
CERTIFICATION OF THE COURT OF APPEALS AND, ON THE MERITS, TO AFFIRM THE
DISTRICT COURT JUDGMENT DISMISSING THE INFORMATION. 

APPELLEES, DEALERS IN MUSICAL INSTRUMENTS IN THE UNITED STATES, HAD
PURCHASED THE VIOLINS FROM IMPORTERS AND THEREAFTER SOLD THEM TO OTHER
DEALERS.  UPON OBTAINING POSSESSION OF THE VIOLINS FROM THE IMPORTERS,
APPELLEES REPLACED LABELS MARKED "GERMANY/USSR OCCUPIED," THEN ON EACH
OF THE VIOLINS, WITH OTHERS INSCRIBED "MADE IN GERMANY."  AFTER RESALE
OF THE VIOLINS, AN INFORMATION WAS FILED AGAINST APPELLEES, CHARGING
THAT THEY REMOVED THE ORIGINAL LABELS ATTACHED TO THE VIOLINS WITH
INTENT TO CONCEAL FROM THE ULTIMATE PURCHASERS THE IDENTITY OF THE
COUNTRY OF ORIGIN.  (FN3)  THE GOVERNMENT'S THEORY WAS THAT THE REMOVAL
OF THE LABELS VIOLATED 19 U.S.C. SEC. 1304 AND ITS IMPLEMENTING
REGULATIONS. 

           I. 

OUR FIRST CONSIDERATION IS THE JURISDICTIONAL ISSUE.  THE CRIMINAL
APPEALS ACT SPECIFIES SEVERAL CONDITIONS, ANY ONE OF WHICH PERMITS A
DIRECT APPEAL BY THE GOVERNMENT TO THIS COURT, AND MAKES OUR
JURISDICTION IN SUCH CASES EXCLUSIVE.  IN THE EVENT THAT AN APPEAL
WHICH SHOULD HAVE BEEN TAKEN HERE IS ERRONEOUSLY EFFECTED TO A COURT OF
APPEALS, THAT COURT IS DIRECTED TO CERTIFY IT HERE.  PRIOR TO 1907, THE
DATE OF THE ORIGINAL ACT, THE UNITED STATES HAD NO APPEAL WHATEVER IN
CRIMINAL CASES.  AS PASSED BY THE HOUSE, THE BILL GAVE THE GOVERNMENT
"THE SAME RIGHT OF REVIEW BY WRIT OF ERROR THAT IS GIVEN TO THE
DEFENDANT."  HOWEVER, IN THE SENATE, THE BILL WAS AMENDED SO AS TO
ALLOW REVIEW FROM JUDGMENTS SETTING ASIDE INDICTMENTS, "WHERE THE
GROUND FOR SUCH MOTION OR DEMURRER IS THE INVALIDITY OR CONSTRUCTION OF
THE STATUTE UPON WHICH THE INDICTMENT IS FOUNDED."  41 CONG. REC.
2819.  THE FINAL LANGUAGE EMERGED FROM THE CONFERENCE COMMITTEE OF THE
TWO HOUSES.  SEE H.R. CONF. REP. NO. 8113, 59TH CONG., 2D SESS.  AS WAS
STATED BY SENATOR KNOX, ONE OF THE PROPONENTS OF THE MEASURE, A MEMBER
OF THE JUDICIARY COMMITTEE AND A FORMER ATTORNEY GENERAL OF THE UNITED
STATES, THE BILL "ONLY PROPOSED TO GIVE IT (THE GOVERNMENT) AN APPEAL
UPON QUESTIONS OF LAW RAISED BY THE DEFENDANT TO DEFEAT THE TRIAL  ...
."  41 CONG. REC. 2752.  THE BILL WAS INTENDED TO CREATE "THE
OPPORTUNITY TO SETTLE IMPORTANT QUESTIONS OF LAW," ITS "GREAT PURPOSE"
BEING "TO SECURE THE ULTIMATE DECISION OF THE COURT OF FINAL RESORT ON
QUESTIONS OF LAW."  (FN4)  THE SITUATION SOUGHT TO BE REMEDIED WAS
OUTLINED BY SENATOR PATTERSON, ALSO OF THE JUDICIARY COMMITTEE AND A
PROPONENT OF THE BILL, IN THESE WORDS: 

"WE HAVE A DISTRICT COURT IN ONE JURISDICTION HOLDING THAT A LAW IS
INEFFECTIVE FOR ONE REASON OR ANOTHER - IT MAY BE THAT IT IS
UNCONSTITUTIONAL, OR FOR SOME OTHER REASON - AND WE HAVE A DISTRICT
COURT IN ANOTHER JURISDICTION HOLDING THE REVERSE; AND AS THE CASES
MULTIPLY IN THE SEVERAL SECTIONS OF THE COUNTRY WE MAY FIND ONE HALF OF
THE COURTS OF THE COUNTRY ARRAYED AGAINST THE OTHER HALF OF THE COURTS
OF THE COUNTRY UPON THE SAME IDENTICAL LAW; ONE HALF HOLDING THAT IT IS
ENTIRELY CONSTITUTIONAL AND THE OTHER HALF HOLDING THAT IT IS
UNCONSTITUTIONAL.  SO, MR. PRESIDENT, THAT CONFUSION, THAT RIDICULOUS
CONDITION, EXISTS AND MUST CONTINUE TO EXIST, BECAUSE, AS THE LAW NOW
STANDS, UNTIL A CASE INVOLVING THE QUESTION SHALL GO TO THE SUPREME
COURT AND IT IS BROUGHT THERE BY THE DEFENDANT, THERE CAN BE NO
ADJUDICATION BY A COURT WHOSE DECISION AND JUDGMENT IS CONTROLLING ...
.  THE BILL IS INTENDED TO CURE A DEFECT IN THE ADMINISTRATION OF
JUSTICE  ...  ."  (FN5) 

IT THEREFORE APPEARS ABUNDANTLY CLEAR THAT THE REMEDIAL PURPOSE OF
THE ACT WAS TO AVERT "THE DANGER OF FREQUENT CONFLICTS, REAL OR
APPARENT, IN THE DECISIONS OF THE VARIOUS DISTRICT OR CIRCUIT COURTS,
AND THE UNFORTUNATE RESULTS THEREOF"; AND TO ELIMINATE "THE
IMPOSSIBILITY OF THE GOVERNMENT'S OBTAINING FINAL AND UNIFORM RULINGS
BY RECOURSE TO A HIGHER COURT."  20 HARV. L. REV. 219.  MOREOVER, THE
DESIRABILITY OF EXPEDITION IN THE DETERMINATION OF THE VALIDITY OF ACTS
OF CONGRESS, WHICH IS POINTED TO AS A DESIDERATUM FOR DIRECT APPEAL,
APPLIES EQUALLY TO REGULATIONS.  IN PRACTICAL OPERATION, CORRECTION OF
A REGULATION BY AGENCY REVISION INVARIABLY AWAITS JUDICIAL ACTION. 

THE INFORMATION CHARGED VIOLATIONS OF 19 U.S.C. SEC. 1304 "AND THE
REGULATIONS PROMULGATED THEREUNDER."  THIS SECTION REQUIRES IMPORTED
ARTICLES TO BE MARKED "TO INDICATE TO AN ULTIMATE PURCHASER  ...  THE
COUNTRY OF ORIGIN," AND IMPOSES CRIMINAL SANCTIONS ON ANYONE WHO
REMOVES SUCH A MARK WITH INTENT TO CONCEAL THE INFORMATION CONTAINED
THEREIN.  THE SECRETARY OF THE TREASURY IS AUTHORIZED TO IMPLEMENT IT
BY APPROPRIATE REGULATIONS.  THE TERM "COUNTRY," AS USED BY THE
CONGRESS IN REQUIRING THE MARKINGS, WAS DEFINED BY REGULATION TO MEAN
"THE POLITICAL ENTITY KNOWN AS A NATION."  19 CFR SEC. 11.8.  BY
TREASURY DECISION 51527, AUGUST 28, 1946, GERMANY WAS TO BE CONSIDERED
THE COUNTRY OF ORIGIN OF ARTICLES MANUFACTURED OR PRODUCED IN ALL PARTS
OF GERMANY.  FOLLOWING A CHANGE IN DUTY RATES APPLICABLE TO SOVIET ZONE
PRODUCTS, T.D. 53210 WAS ISSUED IN 1953, PROVIDING THAT ARTICLES FROM
EASTERN GERMANY SHOULD BE "MARKED TO INDICATE GERMANY (SOVIET
OCCUPIED)."  (FN6)  THE ISSUE POSED TO THE DISTRICT COURT WAS WHETHER
THIS LAST REGULATION CARRIED WITH IT THE SANCTIONS OF SEC. 1304.  AS WE
SEE IT, A CONSTRUCTION OF THE REGULATION NECESSARILY IS AN
INTERPRETATION OF THE STATUTE. 

AN ADMINISTRATIVE REGULATION, OF COURSE, IS NOT A "STATUTE."  WHILE
IN PRACTICAL EFFECT REGULATIONS MAY BE CALLED "LITTLE LAWS," (FN7) THEY
ARE AT MOST BUT OFFSPRING OF STATUTES.  CONGRESS ALONE MAY PASS A
STATUTE, AND THE CRIMINAL APPEALS ACT CALLS FOR DIRECT APPEALS IF THE
DISTRICT COURT'S DISMISSAL IS BASED UPON THE INVALIDITY OR CONSTRUCTION
OF A STATUTE.  SEE UNITED STATES V. JONES, 345 U.S. 377 (1953).  THIS
COURT HAS ALWAYS CONSTRUED THE CRIMINAL APPEALS ACT NARROWLY, LIMITING
IT STRICTLY "TO THE INSTANCES SPECIFIED."  UNITED STATES V. BORDEN CO.,
308 U.S. 188, 192 (1939).  SEE ALSO UNITED STATES V. SWIFT & CO., 318
U.S. 442 (1943).  HERE THE STATUTE IS NOT COMPLETE BY ITSELF, SINCE IT
MERELY DECLARES THE RANGE OF ITS OPERATION AND LEAVES TO ITS PROGENY
THE MEANS TO BE UTILIZED IN THE EFFECTUATION OF ITS COMMAND.  BUT IT IS
THE STATUTE WHICH CREATES THE OFFENSE OF THE WILLFUL REMOVAL OF THE
LABELS OF ORIGIN AND PROVIDES THE PUNISHMENT FOR VIOLATIONS.  THE
REGULATIONS, ON THE OTHER HAND, PRESCRIBE THE IDENTIFYING LANGUAGE OF
THE LABEL ITSELF, AND ASSIGN THE RESULTING TAGS TO THEIR RESPECTIVE
GEOGRAPHICAL AREAS.  ONCE PROMULGATED, THESE REGULATIONS, CALLED FOR BY
THE STATUTE ITSELF, HAVE THE FORCE OF LAW, AND VIOLATIONS THEREOF INCUR
CRIMINAL PROSECUTIONS, JUST AS IF ALL THE DETAILS HAD BEEN INCORPORATED
INTO THE CONGRESSIONAL LANGUAGE.  THE RESULT IS THAT NEITHER THE
STATUTE NOR THE REGULATIONS ARE COMPLETE WITHOUT THE OTHER, AND ONLY
TOGETHER DO THEY HAVE ANY FORCE.  IN EFFECT, THEREFORE, THE
CONSTRUCTION OF ONE NECESSARILY INVOLVES THE CONSTRUCTION OF THE
OTHER.  THE CHARGES IN THE INFORMATION ARE FOUNDED ON SEC. 1304 AND ITS
ACCOMPANYING REGULATIONS, AND THE INFORMATION WAS DISMISSED SOLELY
BECAUSE ITS ALLEGATIONS DID NOT STATE AN OFFENSE UNDER SEC. 1304, AS
AMPLIFIED BY THE REGULATIONS.  WHEN THE STATUTE AND REGULATIONS ARE SO
INEXTRICABLY INTERTWINED, THE DISMISSAL MUST BE HELD TO INVOLVE THE
CONSTRUCTION OF THE STATUTE.  THIS, WE BELIEVE, GIVES RECOGNITION TO
THE CONGRESSIONAL PURPOSE TO GIVE THE GOVERNMENT THE RIGHT OF APPEAL
UPON "QUESTIONS OF LAW RAISED BY THE DEFENDANT TO DEFEAT THE TRIAL" AND
THUS PROMPTLY TO "SECURE THE ULTIMATE DECISION" OF THIS COURT,
AFFORDING A DESIRED "UNIFORM ENFORCEMENT OF THE LAW THROUGHOUT THE
ENTIRE LIMITS OF THE UNITED STATES."  IN VIEW OF THIS CONCLUSION, WE
NEED NOT PASS UPON THE CLAIM THAT THE DISTRICT COURT SUSTAINED IN
EFFECT A "MOTION IN BAR."  OUR DISPOSITION REQUIRES THAT THE CASE COME
DIRECTLY HERE, AND ACCORDINGLY WE ACCEPT THE CERTIFICATE OF THE COURT
OF APPEALS AND NOW TURN TO THE MERITS. 

                      II. 

IN 1946, THE TREASURY IMPLEMENTED THE COUNTRY-OF-ORIGIN PROVISIONS OF
SEC. 1304 BY ISSUANCE OF T.D. 51527, WHICH PROVIDED THAT, "FOR THE
PURPOSES OF THE MARKING PROVISIONS OF THE TARIFF ACT OF 1930,  ...
GERMANY SHALL BE CONSIDERED THE COUNTRY OF ORIGIN OF ARTICLES
MANUFACTURED  ...  IN ALL PARTS OF THE GERMAN AREA SUBJECT TO THE
AUTHORITY OF THE ALLIED CONTROL COMMISSION AND THE UNITED STATES,
BRITISH, SOVIET, AND FRENCH ZONE COMMANDERS  ...  ."  THUS THE MARKING
ON ARTICLES PRODUCED IN THE SOVIET ZONE WERE REQUIRED TO BE LABELED
"MADE IN GERMANY." 

IN 1951 THE CONGRESS DIRECTED THE PRESIDENT TO SUSPEND OR WITHDRAW
ANY REDUCTION IN THE RATES OF CUSTOM DUTIES OR OTHER CONCESSIONS THEN
APPLICABLE TO THE IMPORTATION OF ARTICLES MANUFACTURED IN ANY AREAS
DOMINATED BY THE SOVIET UNION.  65 STAT. 73; 19 U.S.C. SEC. 1362.  IN
PROCLAMATION NO. 2935, 65 STAT. C25, THE PRESIDENT SUSPENDED ANY
REDUCTION IN RATES OF DUTY APPLICABLE TO ANY ARTICLES MANUFACTURED IN
THE SOVIET ZONE OF GERMANY AND THE SOVIET SECTOR OF BERLIN.  TREASURY
DECISION 52788, ISSUED THE SAME DAY, CHANGED THE RATE OF DUTY AS
PROVIDED IN THIS PROCLAMATION.  IN 1953 THE SECRETARY ISSUED T.D.
53210, THE REGULATION IN CONTROVERSY.  THIS TREASURY DECISION IS
HEADED:  "TARIFF STATUS, MARKING TO INDICATE THE NAME OF THE COUNTRY OF
ORIGIN, AND CUSTOMS VALUATION OF PRODUCTS OF GERMANY, POLAND, AND
DANZIG."  THE FIRST PARAGRAPH OF T.D. 53210 REFERS TO THE PRESIDENTIAL
PROCLAMATION CHANGING THE STRUCTURE OF THE RATES OF DUTY.  THE SECOND
PARAGRAPH SPECIFIES THAT, "FOR THE PURPOSES OF THE VALUE PROVISIONS OF
ONE COUNTRY, AND "THE SOVIET ZONE  ...  SHALL BE TREATED AS ANOTHER
'COUNTRY.'"  THE THIRD PARAGRAPH IS THE ONE CRUCIAL TO THIS
PROSECUTION:  IT PROVIDES THAT PRODUCTS OF WESTERN GERMANY SHALL BE
"MARKED TO INDICATE GERMANY AS THE 'COUNTRY OF ORIGIN,' BUT PRODUCTS OF
THE SOVIET ZONE  ...  SHALL BE MARKED TO INDICATE GERMANY (SOVIET
OCCUPIED) AS THE 'COUNTRY OF ORIGIN.'"  THE DISTRICT COURT CONCLUDED
THAT T.D. 53210 WAS "ISSUED PRIMARILY TO ESTABLISH MARKINGS FOR
PURPOSES OF THE DIFFERENCES IN THE DUTIES APPLICABLE"; THUS THE
INDICATION OF SOVIET ZONE ORIGIN WOULD NOT BE REQUIRED BEYOND ENTRY
INTO THIS COUNTRY, THE STAGE AT WHICH DUTY IS PAYABLE. 

WE AGREE WITH THE DISTRICT COURT.  IT APPEARS THAT T.D. 53210, UNLIKE
T.D. 51527, IS AIMED AT THE COLLECTION OF DUTIES RATHER THAN THE
PROTECTION OF THE ULTIMATE PURCHASER IN THE UNITED STATES.  ITS CAPTION
INDICATES THAT IT DEALS WITH "TARIFF STATUS" AND "CUSTOMS VALUATION,"
AND THE MARKING REQUIREMENTS ARE BUT AIDS THEREOF.  TAKING UP THE BODY
OF THE DOCUMENT, WE NOTE THAT THE FIRST PARAGRAPH DEALS ENTIRELY WITH
THE FACT THAT SOVIET-DOMINATED AREAS "SHALL NOT RECEIVE REDUCED RATES
OF DUTY," WHILE WESTERN GERMANY AND THE WESTERN SECTORS OF BERLIN SHALL
"CONTINUE TO RECEIVE MOST-FAVORED-NATION TREATMENT."  THE SECOND
PARAGRAPH IS INTRODUCED BY THE PHRASE, "FOR THE PURPOSES OF THE VALUE
PROVISIONS" OF THE TARIFF ACT, AND PROVIDES THAT "THE SOVIET ZONE  ...
SHALL BE TREATED AS ANOTHER 'COUNTRY.'"  THIS LANGUAGE, AS WELL AS THE
MAKE-UP OF THE REGULATION, SUGGESTS THAT THE THIRD PARAGRAPH (THE ONE
INVOLVED HERE), REQUIRING DISTINCTIVE MARKING FOR SOVIET ZONE PRODUCTS,
IS BUT ANOTHER STEP IN THE IMPLEMENTATION OF THE TARIFF CHANGES.  IT
CONTAINS NO REFERENCE TO THE REQUIREMENT OF SEC. 1304 THAT THE ARTICLE
BE MARKED IN A "CONSPICUOUS PLACE," "LEGIBLY, INDELIBLY, AND
PERMANENTLY," SO THAT AN "ULTIMATE PURCHASER IN THE UNITED STATES"
WOULD BE ON NOTICE.  WE NOTE THAT APPELLEES PLACED ON THE VIOLINS THE
LABELS "MADE IN GERMANY" AS REQUIRED BY T.D. 51527.    IN THE CONTEXT
OF CRIMINAL PROSECUTION, WE MUST APPLY THE RULE OF STRICT CONSTRUCTION
WHEN INTERPRETING THIS REGULATION AND STATUTE.  UNITED STATES V.
HALSETH, 342 U.S. 277, 280 (1952); UNITED STATES V. WILTBERGER, 5
WHEAT.  76, 95-96 (1820).  A READING OF THE REGULATION LEAVES THE
DISTINCT IMPRESSION THAT IT WAS INTENDED TO PROTECT AND EXPEDITE THE
COLLECTION OF CUSTOMS DUTIES.  CERTAINLY ITS EMPHASIS ON DUTIES AND ITS
SILENCE ON THE PROTECTION OF THE PUBLIC FROM DECEIT SUPPORT THE
CONCLUSION THAT THE OLD PROVISIONS WERE TO CONTINUE INSOFAR AS MARKINGS
AFTER IMPORTATION ARE CONCERNED.  (FN8)  IF THE INTENT WERE OTHERWISE,
IT SHOULD NOT HAVE BEEN LEFT TO IMPLICATION.  THERE MUST BE MORE TO
SUPPORT CRIMINAL SANCTIONS:  BUSINESSMEN MUST NOT BE LEFT TO GUESS THE
MEANING OF REGULATIONS.  THE APPELLEES INSIST THAT THEY CHANGED THE
LABELS IN GOOD FAITH, BELIEVING THEIR ACTIONS TO BE PERMISSIBLE UNDER
THE LAW.  THERE IS NOTHING IN THE RECORD TO THE CONTRARY.  A UNITED
STATES DISTRICT JUDGE CONCURRED IN THEIR READING OF THE REGULATION.  IN
THE FRAMEWORK OF CRIMINAL PROSECUTION, UNCLARITY ALONE IS ENOUGH TO
RESOLVE THE DOUBTS IN FAVOR OF DEFENDANTS. 

ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

FN1  "19 U.S.C. SEC. 1304.  MARKING OF IMPORTED ARTICLES AND
CONTAINERS. 

"(A)  MARKING OF ARTICLES. 

"  ...  EVERY ARTICLE OF FOREIGN ORIGIN  ...  IMPORTED INTO THE
UNITED STATES SHALL BE MARKED IN A CONSPICUOUS PLACE AS LEGIBLY,
INDELIBLY, AND PERMANENTLY AS THE NATURE OF THE ARTICLE (OR CONTAINER)
WILL PERMIT IN SUCH MANNER AS TO INDICATE TO AN ULTIMATE PURCHASER IN
THE UNITED STATES THE ENGLISH NAME OF THE COUNTRY OF ORIGIN OF THE
ARTICLE.  THE SECRETARY OF THE TREASURY MAY BY REGULATIONS: 

"(1)  DETERMINE THE CHARACTER OF WORDS AND PHRASES OR ABBREVIATIONS
THEREOF WHICH SHALL BE ACCEPTABLE AS INDICATING THE COUNTRY OF ORIGIN
...  . 

"(2)  REQUIRE THE ADDITION OF ANY OTHER WORDS OR SYMBOLS WHICH MAY BE
APPROPRIATE TO PREVENT DECEPTION OR MISTAKE AS TO THE ORIGIN OF THE
ARTICLE  ...  . 

     *         *         *      *         * 

"(E)  PENALTIES. 

"IF ANY PERSON SHALL, WITH INTENT TO CONCEAL THE INFORMATION GIVEN
THEREBY OR CONTAINED THEREIN, DEFACE, DESTROY, REMOVE, ALTER, COVER,
OBSCURE, OR OBLITERATE ANY MARK REQUIRED UNDER THE PROVISIONS OF THIS
CHAPTER, HE SHALL, UPON CONVICTION, BE FINED NOT MORE THAN $5,000 OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 

FN2  18 U.S.C. SEC. 3731 PROVIDES, IN PART: 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED STATES IN
ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES: 

"FROM A DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING ANY
INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF, WHERE SUCH DECISION OR
JUDGMENT IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED. 

     *         *         *         *         * 

"FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY. 

     *         *         *         *      * 

"IF AN APPEAL SHALL BE TAKEN PURSUANT TO THIS SECTION TO ANY COURT OF
APPEALS WHICH, IN THE OPINION OF SUCH COURT, SHOULD HAVE BEEN TAKEN
DIRECTLY TO THE SUPREME COURT OF THE UNITED STATES, SUCH COURT SHALL
CERTIFY THE CASE TO THE SUPREME COURT OF THE UNITED STATES, WHICH SHALL
THEREUPON HAVE JURISDICTION TO HEAR AND DETERMINE THE CASE TO THE SAME
EXTENT AS IF AN APPEAL HAD BEEN TAKEN DIRECTLY TO THAT COURT." 

FN3  IN ADDITION TO THE SUBSTANTIVE CHARGES, THERE WAS A COUNT
ALLEGING CONSPIRACY SO TO ALTER THE LABELS. 

FN4  SENATOR BACON, A MEMBER OF THE JUDICIARY COMMITTEE.  41 CONG.
REC. 2195-2196. 

FN5  41 CONG. REC. 2753.  SEE ALSO COMMENTS OF SENATOR CLARKE, WHO,
AFTER DISCUSSING THE MATTER WITH SENATOR NELSON, THE MANAGER OF THE
BILL ON THE FLOOR, STATED: 

"WHENEVER THE VALIDITY OF A STATUTE HAS BEEN ADVERSELY DECIDED BY A
TRIAL COURT  ...  THE GOVERNMENT OUGHT TO HAVE THE RIGHT TO PROMPTLY
SUBMIT THAT TO THE TRIBUNAL HAVING AUTHORITY TO DISPOSE OF SUCH
QUESTIONS IN ORDER THAT THERE MAY BE A UNIFORM ENFORCEMENT OF THE LAW
THROUGHOUT THE ENTIRE LIMITS OF THE UNITED STATES."  41 CONG. REC.
2820. 

FN6  SEVERAL MONTHS LATER, T.D. 53281 WAS ISSUED, PROVIDING
ALTERNATIVE WORDINGS FOR THE SOVIET ZONE LABELS. 

FN7  VOM BAUR, FEDERAL ADMINISTRATIVE LAW, SEC. 490, AT 489. 

FN8  SINCE WE HOLD THAT T.D. 53210 DEALS ONLY WITH THE COLLECTION OF
DUTIES, ITS MARKING PROVISIONS SUPERSEDE THOSE OF T.D. 51527 ONLY AS
THE LATTER RELATE THERETO. 

MR. JUSTICE BRENNAN, CONCURRING. 

I JOIN THE OPINION OF THE COURT.  BUT I THINK IT PLAIN UNDER OUR
PRECEDENTS THAT JURISDICTION OVER THIS APPEAL ALSO LIES HERE ON THE
GROUND THAT THE DISMISSAL WAS ONE "SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY."  EXCEPT THAT ARGUMENTS ARE
MADE HERE IN DISSENT WHICH WOULD UNSETTLE WHAT HAS BEEN SETTLED BY OUR
PRECEDENTS AND REINTRODUCE ARCHAISMS INTO FEDERAL CRIMINAL PROCEDURE, I
WOULD HAVE REFRAINED FROM EXPRESSING MY VIEWS. 

THE TOUCHSTONE OF WHAT CONSTITUTES A "JUDGMENT SUSTAINING A MOTION IN
BAR" IS PRECISELY WHAT JUDGE LUMBARD IN THE COURT OF APPEALS SAID IT
WAS - WHETHER THE JUDGMENT IS ONE WHICH WILL END THE CAUSE AND
EXCULPATE THE DEFENDANT.  UNITED STATES V. HARK, 320 U.S. 531, 536;
UNITED STATES V. MURDOCK, 284 U.S. 141, 147; UNITED STATES V. STORRS,
272 U.S. 652, 654.  AS ESTABLISHED BY THESE PRECEDENTS, THE FOCAL POINT
OF INQUIRY IS NOT THE FORM OF THE DEFENDANT'S PLEA, BUT THE EFFECT OF
THE RULING OF THE DISTRICT COURT.  (FN1)  "THE MATERIAL QUESTION IS NOT
HOW THE DEFENDANT'S PLEADING IS STYLED BUT THE EFFECT OF THE RULING
SOUGHT TO BE REVIEWED  ...  ."  UNITED STATES V. HARK, SUPRA, AT 536. 
"ITS (THE JUDGMENT'S) EFFECT, UNLESS REVERSED, IS TO BAR FURTHER
PROSECUTION FOR THE OFFENSE CHARGED.  IT FOLLOWS UNQUESTIONABLY THAT,
WITHOUT REGARD TO THE PARTICULAR DESIGNATION OR FORM OF THE PLEA OR ITS
PROPRIETY, THIS COURT HAS JURISDICTION UNDER THE CRIMINAL APPEALS
ACT."  UNITED STATES V. MURDOCK, SUPRA, AT 147.  TO TURN THE THRUST OF
THESE PRECEDENTS AROUND AND FOCUS ON THE COMMON-LAW PIGEONHOLE OF THE
DEFENDANT'S PLEA WOULD BE AN ANOMALY INDEED, AS IS RECOGNIZED,
PARTICULARLY 15 YEARS AFTER THE FEDERAL RULES OF CRIMINAL PROCEDURE
SWEPT AWAY THE OLD PLEAS.  SEE RULE 12. 

THESE CASES ESTABLISH CRITERIA FOR JUDGING THE QUESTION THAT ARE
FOREIGN TO THE TECHNICALITIES OF THE OLD PLEAS.  IT IS SUGGESTED,
HOWEVER, THAT JUSTICE HOLMES' OPINION IN UNITED STATES V. STORRS,
SUPRA, AT 654, DEMONSTRATES THAT THESE TECHNICALITIES STILL EXIST.  A
LESS SELECTIVE QUOTATION OF HIS OPINION, HOWEVER, MAKES IT PLAIN THAT
HE WAS REFERRING TO ONE TECHNICAL TOUCHSTONE - THE VERY ONE THAT JUDGE
LUMBARD APPLIED BELOW AND WHICH WAS FOLLOWED IN MURDOCK AND HARK. 
STORRS INVOLVED THE DISMISSAL OF AN INDICTMENT FOR IRREGULARITIES
COMMITTED IN THE GRAND JURY ROOM.  THE STATUTE OF LIMITATIONS HAD RUN
AT THE TIME OF THE DISMISSAL SO THAT A NEW INDICTMENT COULD NOT BE
FOUND.  BUT THE NATURE OF THE COURT'S ACTION ITSELF WAS NOT TO
EXCULPATE THE DEFENDANT, AS THE OPINION EXPLAINED:  "(IT) CANNOT BE
THAT A PLEA FILED A WEEK EARLIER IS WHAT IT PURPORTS TO BE, AND IN ITS
CHARACTER IS, BUT A WEEK LATER BECOMES A PLEA IN BAR BECAUSE OF THE
EXTRINSIC CIRCUMSTANCE THAT THE STATUTE OF LIMITATIONS HAS RUN.  THE
PLEA LOOKS ONLY TO ABATING THE INDICTMENT NOT TO BARRING THE ACTION. 
IT HAS NO GREATER EFFECT IN ANY CIRCUMSTANCES.  IF ANOTHER INDICTMENT
CANNOT BE BROUGHT, THAT IS NOT BECAUSE OF THE JUDGMENT ON THE PLEA, BUT
IS AN INDEPENDENT RESULT OF A FACT HAVING NO RELATION TO THE PLEA AND
WORKING EQUALLY WHETHER THERE WAS A PREVIOUS INDICTMENT OR NOT.  THE
STATUTE USES TECHNICAL WORDS, 'A SPECIAL PLEA IN BAR,' AND WE SEE NO
REASON FOR NOT TAKING THEM IN THEIR TECHNICAL SENSE."  272 U.S., AT
654.  CLEARLY THE POINT OF THE DISCUSSION WAS NOT WHETHER THE PLEA WAS
BY WAY OF "CONFESSION AND AVOIDANCE" OR THE LIKE, BUT WHETHER THE
JUDGMENT ON IT WAS IN ITSELF AN EXCULPATORY ONE - THE ANNOUNCED TEST
THAT SUBSEQUENT DECISIONS HAVE FOLLOWED.  THERE IS, THEN, NO
INCONSISTENCY BETWEEN STORRS AND HARK - BOTH TURNED ON THE SAME BASIC
PRINCIPLE. 

WHATEVER RETROSPECTIVE EXEGESIS OF THE LEADING CASES NOW SUGGESTS,
THE ONE THING READING THEIR OWN LANGUAGE DISCLOSES IS THAT NONE OF THEM
ASSERTS THE "CONFESSION AND AVOIDANCE" RATIONALE NOW ASCRIBED TO THEM. 
RATHER THEY WERE CONCEIVED AS TURNING ON THE RATIONALE THAT THE COURT
OF APPEALS EXPLAINED BELOW.  I WOULD ADHERE TO THE BASIC PRINCIPLES OF
HARK, MURDOCK AND STORRS HERE, AND PUT THE NINETEENTH CENTURY PLEADING
BOOKS BACK ON THE SHELVES.  (FN2) 

FN1  SEE FRIEDENTHAL, GOVERNMENT APPEALS IN FEDERAL CRIMINAL CASES,
12 STAN.  L. REV.  71, 77-78. 

FN2  IT IS SUGGESTED THAT THIS CONSTRUCTION CAUSES SOME OVERLAP
BETWEEN THOSE JUDGMENTS APPEALABLE HERE AS SUSTAINING MOTIONS IN BAR
AND THOSE APPEALABLE HERE AS BASED ON THE CONSTRUCTION OR INVALIDITY OF
THE STATUTE UNDER WHICH PROSECUTION IS HAD.  THE EXISTENCE OF SUCH AN
OVERLAP HARDLY WOULD MILITATE SERIOUSLY AGAINST THE CONSTRUCTION OF THE
STATUTE ESPOUSED HERE AND IN HARK, MURDOCK AND STORRS; WHERE CONGRESS
HAS DECIDED TO MAKE TWO CATEGORIES OF CASES APPEALABLE TO THIS COURT,
IT IS NOT A VALUABLE GUIDE TO CONSTRUCTION TO ASSUME THAT CONGRESSIONAL
INTENT WOULD BE OFFENDED IF SOME CASES WERE APPEALABLE AS BELONGING TO
BOTH CATEGORIES.  AND IT CANNOT BE MAINTAINED, AS IS SUGGESTED, THAT
EVERY JUDGMENT BASED ON THE INVALIDITY OF A STATUTE MUST ALSO BE ONE
SUSTAINING A MOTION IN BAR.  FOR AN INDICTMENT MAY BE DISMISSED BECAUSE
IT DOES NOT ALLEGE FACTS SUFFICIENT TO INDICATE A CONSTITUTIONAL
APPLICATION OF THE STATUTE UNDER WHICH THE PROSECUTION WAS BROUGHT; AND
IF THE OMISSION IS NOT A PLEADING DEFECT, AND THE STATUTE WAS
INTERPRETED BY THE DISTRICT COURT AS COVERING THE CHARGE, THE DISMISSAL
IS APPEALABLE HERE AS FROM A JUDGMENT BASED ON THE INVALIDITY OF THE
STATUTE.  YET SUCH A JUDGMENT WOULD NOT NECESSARILY EXCULPATE THE
DEFENDANT, AND THUS WOULD NOT CONSTITUTE THE SUSTAINING OF A PLEA IN
BAR, FOR A NEW INDICTMENT FOR THE SAME CRIMINAL OFFENSE MIGHT BE FOUND
BY ALLEGING SUFFICIENT ADDITIONAL FACTS TO OBVIATE THE CONSTITUTIONAL
DEFECT.  CF. UNITED STATES V. OPPENHEIMER, 242 U.S. 85, 87. 

MEMORANDUM OF MR. JUSTICE WHITTAKER. 

ALTHOUGH I AGREE WITH SO MUCH OF THE DISSENTING OPINIONS OF MY
BROTHERS FRANKFURTER AND STEWART AS CONCLUDES THAT A "REGULATION" IS
NOT EMBRACED BY THE TERM "STATUTE" AS USED IN THE CRIMINAL APPEALS ACT,
18 U.S.C. SEC. 3731, I ALSO AGREE WITH SO MUCH OF MY BROTHER BRENNAN'S
CONCURRING OPINION AS WOULD HOLD THAT THE DISMISSAL WAS ONE "SUSTAINING
A MOTION IN BAR, WHEN THE DEFENDANT HAS NOT BEEN PUT IN JEOPARDY," AND
HENCE CONCLUDE THAT WE HAVE JURISDICTION.  ON THE MERITS, I JOIN THE
COURT'S OPINION. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

THE CRIMINAL APPEALS ACT OF 1907, 34 STAT. 1246, C. 2564, PROVIDES
THAT IN A CRIMINAL CASE AN APPEAL FROM A DISTRICT COURT "FROM A
DECISION OR JUDGMENT QUASHING, SETTING ASIDE, OR SUSTAINING A DEMURRER
TO, ANY INDICTMENT, OR ANY COUNT THEREOF, WHERE SUCH DECISION OR
JUDGMENT IS BASED UPON THE INVALIDITY, OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT IS FOUNDED."  "FROM A DECISION ARRESTING A
JUDGMENT OF CONVICTION FOR INSUFFICIENCY OF THE INDICTMENT, WHERE SUCH
DECISION IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT IS FOUNDED," AND "FROM THE DECISION OR
JUDGMENT SUSTAINING A SPECIAL PLEA IN BAR, WHEN THE DEFENDANT HAS NOT
BEEN PUT IN JEOPARDY," (FN1) CANNOT BE TAKEN BY THE GOVERNMENT TO THE
COURT OF APPEALS, BUT MUST COME TO THIS COURT DIRECTLY.  IN THIS CASE
THE INDICTMENT RESTED UPON A REGULATION OF THE SECRETARY OF THE
TREASURY, VIOLATION OF WHICH CONSTITUTES AN OFFENSE UNDER 19 U.S.C.
SEC. 1304(E).  THE DISTRICT COURT DECIDED AGAINST THE GOVERNMENT, WHICH
THEREUPON APPEALED TO THE COURT OF APPEALS.  THAT COURT CERTIFIED THE
CASE TO THIS COURT.  261 F.2D 40. 

THE QUESTION WHETHER CONSTRUCTION OF A "STATUTE," AS THAT TERM IS
USED IN THE ACT OF 1907, INCLUDES CONSTRUCTION OF A REGULATION
PROMULGATED UNDER A STATUTE IS ANOTHER VARIANT OF THE RECURRING PROBLEM
OF RESOLVING AN AMBIGUITY OF LEGAL LANGUAGE.  HERE AMBIGUITY INHERES
NOT ONLY IN THE WORD "STATUTE" AS AN ENGLISH WORD (SEE "STATUTE,"
OXFORD ENGLISH DICTIONARY), BUT ALSO IN THE WORD "STATUTE" AS A LEGAL
TERM.  (COMPARE THE CONSTRUCTION OF THE TERM "STATUTE" IN TWO CASES
DECIDED CONTEMPORANEOUSLY, KING MFG. CO. V. AUGUSTA, 277 U.S. 100
(1928), AND EX PARTE COLLINS, 277 U.S. 565 (1928).  IN THE FORMER,
"STATUTE" WAS HELD TO INCLUDE A CITY ORDINANCE; IN THE LATTER,
"STATUTE" WAS HELD TO EXCLUDE A CLASS OF LEGISLATIVE ENACTMENTS
"DESPITE THE GENERALITY OF THE LANGUAGE."  277 U.S., AT 568.)  JUDGED
BY THE DICTIONARY, ONE MEANING OF "STATUTE" IS OF COURSE AN ENACTMENT
MADE BY THE LEGISLATURE OF A COUNTRY.  AS A MATTER OF ENGLISH, IT MAY
ALSO BE RESPECTABLY USED TO REFER TO THE ENACTMENT OF A BODY
SUBORDINATE TO A LEGISLATURE OR TO THE GOVERNING PROMULGATIONS OF A
PRIVATE BODY, LIKE A COLLEGE.  THUS THE DICTIONARY DOES NOT RESOLVE OUR
PROBLEM, WHOLLY APART FROM HEEDING THE ADMONITION, SO FREQUENTLY
EXPRESSED BY JUDGE LEARNED HAND, THAT JUDGES IN CONSTRUING LEGISLATION
OUGHT NOT TO IMPRISON THEMSELVES IN THE FORTRESS OF THE DICTIONARY. 
THE IMMEDIATELY RELEVANT AMBIGUITY OF "STATUTE" AS A LEGAL TERM DERIVES
FROM THE FACT THAT IT MAY MEAN EITHER THE ENACTMENT OF A LEGISLATURE,
TECHNICALLY SPEAKING, THAT IS THE CONGRESS OF THE UNITED STATES OR THE
RESPECTIVE LEGISLATURES OF THE FIFTY STATES; OR IT MAY HAVE A MORE
COMPREHENSIVE SCOPE, TO WIT, RULES OF CONDUCT LEGALLY EMITTED BY
SUBORDINATE LAWMAKING AGENCIES SUCH AS CITY COUNCILS OR THE VARIOUS
REGULATION-EMITTING BODIES OF THE FEDERAL AND STATE GOVERNMENTS. 
ACCORDINGLY, WHETHER THE TERM "STATUTE," AS USED IN THE CRIMINAL
APPEALS ACT OF 1907, SHOULD BE GIVEN THE RESTRICTIVE MEANING, I.E.,
ENACTMENTS BY CONGRESS, OR THE MORE EXTENSIVE MEANING, I.E., TREASURY
REGULATIONS, CANNOT BE DETERMINED MERELY BY READING THE CRIMINAL
APPEALS ACT OF 1907.  THE ANSWER WILL TURN ON THE TOTAL RELEVANT
ENVIRONMENT INTO WHICH THAT ACT MUST BE PLACED, INCLUDING PAST RELEVANT
DECISIONS, THE LEGISLATIVE HISTORY OF THE ACT, AND DUE REGARD FOR THE
CONSEQUENCES RESULTING FROM A RESTRICTIVE AS AGAINST A LATITUDINARIAN
CONSTRUCTION. 

FOR THE PROBLEM IN HAND, THERE IS NO CONTROLLING AUTHORITY IN THIS
COURT NOR ARE THERE DECISIONS UNDER OTHER STATUTES HELPFUL FOR
DECISION; NEITHER IS THERE A BODY OF PRACTICE REFLECTED IN LOWER COURT
DECISIONS OVER A SUFFICIENT PERIOD OF TIME, UNCHALLENGED HERE, CARRYING
THE WEIGHT OF PROFESSIONAL UNDERSTANDING.  THE CASE, THEREFORE, MUST BE
DECIDED ON THE BALANCE OF CONSIDERATIONS WEIGHED HERE FOR THE FIRST
TIME. 

THE ORIGIN OF THE LEGISLATION AND THE LEGISLATIVE HISTORY OF ITS
ENACTMENT LEAVE NO DOUBT AS TO THE DIRECTION OF ITS AIM.  BETWEEN THE
DECISION OF THIS COURT IN UNITED STATES V. SANGES, 144 U.S. 310 (1892),
AND THE ENACTMENT OF THE CRIMINAL APPEALS ACT, THE UNITED STATES HAD NO
APPELLATE REMEDY IN CRIMINAL CASES.  (SEE THE STORY AS SUMMARIZED IN
UNITED STATES V. DICKINSON, 213 U.S. 92.)  THIS "LEFT ALL FEDERAL
CRIMINAL LEGISLATION AT THE MERCY OF SINGLE JUDGES IN THE DISTRICT AND
CIRCUIT COURTS.  THIS DEFECT BECAME ALL THE MORE SERIOUS BECAUSE IT
BECAME OPERATIVE JUST AT THE BEGINNING OF THE MOVEMENT FOR INCREASING
SOCIAL CONTROL THROUGH CRIMINAL MACHINERY."  FRANKFURTER AND LANDIS,
THE BUSINESS OF THE SUPREME COURT (1928), P. 114.  ATTORNEYS GENERAL
HAD, SINCE 1892, BEEN EMPHASIZING THE NEED FOR THE LEGISLATION WHICH
BECAME THE 1907 ACT.  SEE, ID., PP. 114-115.  ATTORNEY GENERAL (LATER
MR. JUSTICE) MOODY IN 1906 PUT THE SITUATION TO BE REMEDIED IN THESE
TERMS: "IT IS MONSTROUS THAT A LAW WHICH HAS RECEIVED THE ASSENT OF THE
SENATE, THE HOUSE OF REPRESENTATIVES, AND THE PRESIDENT CAN BE
NULLIFIED BY THE OPINION OF A SINGLE MAN, NOT SUBJECT TO REVIEW BY THE
COURT OF APPEALS AND THE SUPREME COURT."  ATTY. GEN. ANN. REP. 4
(1906). 

THE PARTICULAR INCIDENT WHICH PRECIPITATED THE LEGISLATION WAS THE
BEEF-TRUST CASE, UNITED STATES V. ARMOUR & CO., 142 F. 808 (1906),
WHERE A PLEA IN BAR, IN ITS TECHNICAL SENSE, WAS SUSTAINED, THEREBY
FINALLY ENDING A SHERMAN LAW PROSECUTION IN WHICH PRESIDENT THEODORE
ROOSEVELT WAS MUCH INTERESTED.  IN HIS MESSAGE TO THE CONGRESS WHICH
EVENTUALLY ENACTED THE ACT OF 1907 THE PRESIDENT THUS EXPRESSED THE
NEED FOR LEGISLATION: "IT SEEMS AN ABSURDITY TO PERMIT A SINGLE
DISTRICT JUDGE, AGAINST WHAT MAY BE THE JUDGMENT OF THE IMMENSE
MAJORITY OF HIS COLLEAGUES ON THE BENCH, TO DECLARE A LAW SOLEMNLY
ENACTED BY THE CONGRESS TO BE 'UNCONSTITUTIONAL,' AND THEN TO DENY TO
THE GOVERNMENT THE RIGHT TO HAVE THE SUPREME COURT DEFINITELY DECIDE
THE QUESTION."  41 CONG. REC. 22.  THE CONCERN OF THOSE IN CHARGE OF
THE BILL THROUGHOUT THE DEBATE UPON THE MEASURE IN THE SENATE, IN WHICH
ALONE THERE WAS FULL DISCUSSION, WAS TO AFFORD THE GOVERNMENT APPELLATE
REVIEW WHEN A SINGLE JUDGE HAD FRUSTRATED THE FORMALLY EXPRESSED WILL
OF CONGRESS.  (FN2) 

THE LEGISLATIVE HISTORY GIVES NO HINT OF ANY CONCERN OVER
MISCONSTRUCTION OR INVALIDATION OF REGULATIONS TO WHICH STATUTES MIGHT
GIVE RISE.  REGULATIONS WERE NOT MENTIONED.  IT IS SIGNIFICANT,
HOWEVER, THAT THE MEASURE WHICH ULTIMATELY BECAME LAW WAS ONE
DELIBERATELY NARROWER IN SCOPE THAN THAT ORIGINALLY PROPOSED IN THE
CONGRESS.  THE LEGISLATION ORIGINATED IN THE HOUSE, WHICH, IN THE FIRST
SESSION OF THE 59TH CONGRESS, PASSED A BILL GIVING THE UNITED STATES IN
ALL CRIMINAL PROSECUTIONS "THE SAME RIGHT OF REVIEW BY WRIT OF ERROR
THAT IS GIVEN TO THE DEFENDANT" PROVIDED THAT THE DEFENDANT NOT BE
TWICE PUT IN JEOPARDY FOR THE SAME OFFENSE.  40 CONG. REC. 5408.  IN
THE SENATE, A LESS GENERAL MEASURE, IN THE NATURE OF A SUBSTITUTE FOR
THE HOUSE BILL, WAS REPORTED, GIVING THE UNITED STATES THE RIGHT TO
TAKE A WRIT OF ERROR FROM DECISIONS OR JUDGMENTS "QUASHING OR SETTING
ASIDE AN INDICTMENT  ...  SUSTAINING A DEMURRER TO AN INDICTMENT  ...
ARRESTING A JUDGMENT OF CONVICTION FOR INSUFFICIENCY OF THE INDICTMENT
...  OR SUSTAINING A SPECIAL PLEA IN BAR  ...  ."   40 CONG. REC. 7589
7590; S. REP. NO. 3922, 59TH CONG., 1ST SESS.  THIS BILL WENT OVER IN
THE SENATE TO THE SECOND SESSION OF THE 59TH CONGRESS.  THE CHIEF
OBJECTION TO IT WAS ITS BREADTH.  ALTHOUGH IT WAS AMENDED TO PROVIDE
EXPRESSLY FOR PROTECTION AGAINST DOUBLE JEOPARDY, 41 CONG. REC. 2819,
SENATORS OBJECTED TO ANY UNNECESSARY EXTENSION OF THE NUMBER OF
SITUATIONS IN WHICH DEFENDANTS MIGHT, CONTRARY TO WHAT HAD BEEN THE
PRACTICE, BE SUBJECTED TO GOVERNMENT APPEALS IN CRIMINAL CASES.   E.G.,
41 CONG. REC. 2192-2194, 2819. 

IN RESPONSE TO THIS OBJECTION, SENATOR CLARKE INTRODUCED A SUBSTITUTE
BILL PROVIDING ONLY THREE CATEGORIES OF CASES IN WHICH THE GOVERNMENT
WOULD BE ALLOWED TO APPEAL:  "FROM A DECISION OR JUDGMENT QUASHING,
SETTING ASIDE, OR SUSTAINING A DEMURRER TO ANY INDICTMENT OR ANY COUNT
THEREOF WHERE THE GROUND FOR SUCH MOTION OR DEMURRER IS THE INVALIDITY
OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT IS FOUNDED";
"FROM THE DECISION ARRESTING A JUDGMENT OF CONVICTION FOR INSUFFICIENCY
OF THE INDICTMENT, WHERE THE GROUND FOR THE INSUFFICIENCY THEREOF IS
THE INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE SAME IS
FOUNDED"; "FROM THE DECISION OR JUDGMENT SUSTAINING A SPECIAL PLEA IN
BAR, WHEN THE DEFENDANT HAS NOT BEEN PUT IN JEOPARDY."  41 CONG. REC.
2823.  THE CLARKE SUBSTITUTE, PASSED BY THE SENATE (41 CONG. REC.
2825), WAS SUBSTANTIALLY ADOPTED IN ITS RELEVANT ASPECTS BY THE HOUSE
(SEE H.R. REP. NO. 8113, 59TH CONG., 2D SESS.) AND EVENTUALLY BECAME
THE ACT OF 1907.  41 CONG. REC. 3994, 4128.  IN EXPLAINING THE REASON
FOR HIS AMENDMENT, SENATOR CLARKE STRESSED THE AIM NOT TO HAVE THE
SCOPE OF THE LEGISLATION GREATER THAN NECESSARY: "THE OBJECT  ...  IS
TO LIMIT THE RIGHT OF APPEAL UPON THE PART OF THE GENERAL GOVERNMENT TO
THE VALIDITY OR CONSTITUTIONALITY OF THE STATUTE IN WHICH THE
PROSECUTION IS PROCEEDING.  IT HAS BEEN ENLARGED BY THE ADDITION OF
ANOTHER CLAUSE, WHICH GIVES THE RIGHT OF APPEAL WHERE THE CONSTRUCTION
BY THE TRIAL COURT IS SUCH AS TO DECIDE THAT THERE IS NO OFFENSE
COMMITTED, NOTWITHSTANDING THE VALIDITY OF THE STATUTE, AND IN OTHER
RESPECTS THE PROCEEDING MAY REMAIN INTACT  ...  .  A CASE RECENTLY
OCCURRING HAS DRAWN ATTENTION TO THE FACT THAT IF A CIRCUIT JUDGE OR A
DISTRICT JUDGE HOLDING THE CIRCUIT SHOULD DETERMINE THAT A STATUTE OF
CONGRESS WAS INVALID, THE UNITED STATES IS WITHOUT MEANS OF HAVING THAT
MATTER SUBMITTED TO A TRIBUNAL THAT UNDER THE CONSTITUTION HAS POWER TO
SETTLE THAT QUESTION.  I DO NOT BELIEVE THE REMEDY OUGHT TO BE ANY
WIDER THAN THE MISCHIEF THAT HAS BEEN DISCLOSED."  41 CONG. REC. 2819. 

IT IS MANIFEST THAT THE PREOCCUPYING THOUGHT OF THE PRIMARY PROMOTER
OF THE LEGISLATION, PRESIDENT ROOSEVELT, AND OF CONGRESS, WAS TO BAR A
SINGLE JUDGE FROM DESTROYING, EITHER BY WAY OF CONSTRUCTION OR
INVALIDATION, CONGRESSIONAL ENACTMENTS.  EXTENSION OF THE RANGE OF THE
MEANING OF "STATUTE" TO INCLUDE REGULATIONS TO WHICH PENAL CONSEQUENCES
ATTACH WAS APPARENTLY NOBODY'S THOUGHT AND CERTAINLY ON NOBODY'S
TONGUE.  THIS WAS AT A TIME WHEN THE PROLIFERATION OF REGULATIONS WAS
NOT AN UNKNOWN PHENOMENON IN LAWMAKING.  IT IS CERTAINLY NOT FICTIONAL
TO ATTRIBUTE TO THE PREPONDERANT PROFESSION REPRESENTED IN CONGRESS
KNOWLEDGE OF THE ELEMENTARY DIFFERENCE BETWEEN STATUTES, CONVENTIONALLY
SPEAKING, AND REGULATIONS AUTHORIZED BY STATUTES.  NOR IS THIS A FORMAL
OR MINOR DISTINCTION.  IT IS ONE THING TO STRIKE DOWN A STATUTE, OR TO
EVISCERATE ITS MEANING; IT IS QUITE ANOTHER THING TO CONSTRUE A
REGULATION ADVERSELY TO THE GOVERNMENT'S DESIRE.  LEGISLATION IS
COMPLICATED AND CUMBERSOME BUSINESS.  CORRECTION OF ERRONEOUS STATUTORY
CONSTRUCTION, LET ALONE INVALIDATION OF LAWS, IS A DIFFICULT, EVEN A
HAZARDOUS PROCESS.  REGULATIONS ARE THE PRODUCTS OF OFFICIALS UNHOBBLED
BY LEGISLATIVE PROCEDURE WITH ITS POTENTIAL OPPORTUNITY FOR
PARLIAMENTARY ROADBLOCKING.  IN LARGE MEASURE, THESE OFFICIALS HAVE THE
MEANS OF SELF-HELP FOR CORRECTING JUDICIAL MISCONCEPTION ABOUT A
REGULATION. 

SUCH BEING THE PRACTICAL DIFFERENCES BETWEEN DEALING WITH REGULATIONS
AND DEALING WITH THE LAWS OF CONGRESS AS SUCH, WHAT IS THE BEARING OF
THESE PRACTICAL DIFFERENCES UPON OUR DUTY OF CONSTRUING THE TERM
"STATUTE" IN ORDER TO DECIDE WHETHER THE RIGHT OF DIRECT APPEAL TO THIS
COURT SHOULD BE RESTRICTED TO CASES CONSTRUING THE FORMAL ENACTMENTS OF
CONGRESS, OR WHETHER IT SHOULD INCLUDE CASES CONSTRUING REGULATIONS
REFERABLE TO SUCH ENACTMENTS?  THE ANSWER TO THIS QUESTION INTRODUCES A
FACTOR OF WEIGHTY IMPORTANCE IN DECIDING WHETHER CASES ARE REQUIRED TO
BE BROUGHT HERE IN THE FIRST INSTANCE OR MAY BE BROUGHT HERE ONLY BY
LEAVE AFTER ADJUDICATION BY A COURT OF APPEALS.  THAT FACTOR CONCERNS
DUE REGARD FOR THE RESPONSIBILITY OF THIS COURT IN RELATION TO THE
JUDICIAL BUSINESS OF MAJOR PUBLIC IMPORTANCE AND THE CONDITIONS
NECESSARY FOR ITS WISE DISPOSITION.  (FN3) 

ON MORE THAN ONE OCCASION THIS COURT HAS GIVEN CONTROLLING
CONSIDERATION TO THE FACT THAT BY A LATITUDINARIAN CONSTRUCTION OF
JURISDICTIONAL LEGISLATION THE BUSINESS OF THIS COURT WOULD BE "LARGELY
AND IRRATIONALLY INCREASED."  AMERICAN SECURITY & TRUST CO. V.
COMMISSIONERS, 224 U.S. 491, 495.  SINCE THE MERELY ABSTRACTLY LOGICAL
ARGUMENTS PERMIT "STATUTE" TO BE CONSTRUED IN EITHER A RESTRICTIVE OR A
BROAD SENSE, THAT IS, THAT APPEALS TO THIS COURT DIRECTLY FROM AN
ADJUDICATION OF A DISTRICT COURT UNDER THE CRIMINAL APPEALS ACT MAY
APPROPRIATELY BE CONFINED TO RULINGS UNDER A STATUTE AS SUCH, RATHER
THAN TO INCLUDE INTERPRETATIONS OF REGULATIONS ARISING UNDER A STATUTE,
I NOT ONLY FEEL FREE, BUT DEEM IT INCUMBENT, TO OPPOSE WHAT IS
CERTAINLY A NEEDLESS IF NOT AN IRRATIONAL INCREASE IN THE CLASS OF
CASES WHICH CAN BE BROUGHT DIRECTLY TO THIS COURT FROM THE DISTRICT
COURTS.  I WOULD DENY THE RIGHT OF THE GOVERNMENT TO APPEAL HERE EVERY
TIME ONE OF THE VAST NUMBER OF REGULATIONS TO WHICH PENALTIES ARE
ATTACHED IS CONSTRUED TO ITS DISFAVOR.  I WOULD LEAVE THE GOVERNMENT TO
REVISE ITS REGULATION, AS SO OFTEN CAN EASILY AND EFFECTIVELY BE
ACCOMPLISHED BY SKILLFUL DRAFTING, TO BRING IT WITHIN STATUTORY
AUTHORITY, OR TO GO TO A COURT OF APPEALS FOR REVIEW. 

THE PRESENCE IN THE CRIMINAL APPEALS ACT OF 1907 OF THE PROVISION FOR
AN APPEAL BY THE GOVERNMENT FROM DECISIONS OR JUDGMENTS SUSTAINING A
"SPECIAL PLEA IN BAR" WHEN THE DEFENDANT HAS NOT BEEN PUT IN JEOPARDY,
HAS AN HISTORICAL EXPLANATION AND ITS SCOPE PRESENTS A DIFFERENT
PROBLEM OF STATUTORY CONSTRUCTION THAN THAT OF GIVING MEANING TO
"STATUTE."  BARRING STIMULATION BY THIS COURT, CONGRESS SELDOM
INITIATES JUDICIARY LEGISLATION EXCEPT WHEN A DRAMATIC CASE STIRS
PUBLIC INTEREST.  SUCH WAS THE BEEF-TRUST CASE, UNITED STATES V. ARMOUR
& CO., 142 F. 808.  IN THAT CASE, BECAUSE OF THE THEN ABSENCE OF THE
GOVERNMENT'S RIGHT OF APPEAL IN A CRIMINAL CASE, THE GOVERNMENT'S ANTI
TRUST PROSECUTION WAS FINALLY TERMINATED BY A SUCCESSFUL PLEA IN BAR IN
THE DISTRICT COURT.  THE CONGRESS WAS DETERMINED NOT TO PERMIT A
RECURRENCE OF THAT SITUATION, AND THUS THE INCLUSION IN THE ACT OF 1907
OF A CLAUSE PERMITTING APPEALS BY THE GOVERNMENT FROM DECISIONS
SUSTAINING A "SPECIAL PLEA IN BAR" IS EASILY ACCOUNTED FOR. 

REGARDING THE MEANING OF THIS CLAUSE, I AGREE WITH THE OPINION OF MY
BROTHER STEWART.  WHEN CONGRESS USES TECHNICAL LEGAL LANGUAGE THE COURT
DISREGARDS THE OBVIOUS GUIDANCE TO MEANING IF IT DEPARTS FROM ITS
TECHNICAL LEGAL CONNOTATION.  THERE HAVE BEEN TWO CASES BEFORE THE
COURT DEALING WITH THE MATTER, BETWEEN WHICH WE HAVE TO CHOOSE:  UNITED
STATES V. STORRS, 272 U.S. 652, AND UNITED STATES V. HARK, 320 U.S.
531.  IN STORRS MR. JUSTICE HOLMES, AS SPOKESMAN FOR THE COURT, APPLIED
HIS AUTHORITATIVE LEARNING OF THE COMMON LAW TO TAKE "TECHNICAL WORDS"
"IN THEIR TECHNICAL SENSE."  IN HARK, THE COURT DID NOT NOTICE THE
STORRS ANALYSIS AND GAVE A COLLOQUIAL MEANING TO THE PHRASE.  HAVING TO
CHOOSE BETWEEN THESE TWO DECISIONS, I FOLLOW STORRS BECAUSE IT APPLIED
THE APPROPRIATE CRITERION OF CONSTRUCTION. 

FN1  FORMAL CHANGES IN THIS LANGUAGE HAVE BEEN MADE BY THE ACT OF MAY
9, 1942, C. 295, 56 STAT. 271, THE 1948 JUDICIAL CODE, ACT OF JUNE 25,
1948, C. 645, SEC. 3831, 62 STAT.  844, AND THE ACT OF MAY 24, 1949, C.
139, SEC. 58, 63 STAT. 97. 

FN2  SEE, E.G., 41 CONG. REC. 2757 (SENATOR NELSON, THE MANAGER OF
THE BILL IN THE SENATE):  "THE QUESTION NOW BEFORE US IS WHETHER WE
WILL ALLOW A NISI PRIUS JUDGE OF AN INFERIOR COURT TO RENDER
INEFFECTIVE OUR EFFORTS IN THIS BEHALF TO PROTECT THE AMERICAN PEOPLE
AGAINST TRUSTS AND MONOPOLIES AND OTHER DANGEROUS THINGS; WHETHER WE
WILL ALLOW OURSELVES TO BE HANDICAPPED AND CRIPPLED BY THE DECISION OF
AN INFERIOR NISI PRIUS JUDGE."  SEE ALSO, ID., 2192 (SENATOR BACON):
"AND A LAW OF CONGRESS IS SET ASIDE, MADE ABSOLUTELY NULL AND VOID AND
INOPERATIVE BY THE DECISION OF ONE JUDGE, WITHOUT THE OPPORTUNITY FOR
THE NINE JUDGES WHO SIT IN THE SUPREME COURT TO PASS UPON THE GREAT
QUESTION  ...  AFFECTING NOT SIMPLY THAT ACCUSED, AFFECTING NOT SIMPLY
ALL OTHERS WHO MAY BE ACCUSED, BUT AFFECTING THE OPERATION OF THE LAW
OF THE LAND  ...  ."   FN3  APART FROM OTHER VITAL FACTORS, INCREASE IN
THE RANGE AND MASS OF MATERIALS DRAWN UPON IN OPINIONS DURING RECENT
DECADES, AND THE INVESTIGATION AND APPRAISAL THEREBY INVOLVED, ENTAIL A
CONSIDERABLE INCREASE IN THE BURDEN OF THE COURT'S BUSINESS COMPARED
WITH EARLIER PERIODS. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

I DO NOT REACH THE MERITS OF THIS CASE, BECAUSE I THINK THE DISTRICT
COURT'S JUDGMENT WAS NOT OF A KIND WHICH THE CRIMINAL APPEALS ACT MAKES
DIRECTLY REVIEWABLE BY THIS COURT.  IT SEEMS CLEAR TO ME THAT THE
DISMISSAL OF THE INFORMATION WAS NOT "BASED UPON THE INVALIDITY OR
CONSTRUCTION OF THE STATUTE," AND EQUALLY CLEAR THAT THE JUDGMENT WAS
NOT ONE "SUSTAINING A MOTION IN BAR."  (FN1)

                                        I. 

THE DISTRICT COURT'S DECISION WAS BASED SOLELY UPON THE
INTERPRETATION OF TREASURY REGULATIONS, NOT UPON THE INVALIDITY OR
CONSTRUCTION OF AN ACT OF CONGRESS.  THE COURT FOUND IT DOUBTFUL THAT
THE REGULATIONS IN QUESTION WERE ISSUED TO IMPLEMENT THE COUNTRY-OF
ORIGIN MARKING REQUIREMENTS OF 19 U.S.C. SEC. 1304, (FN2) AND HELD THAT
IN ANY EVENT THE INTENT OF THE REGULATIONS WAS NOT SUFFICIENTLY
UNAMBIGUOUS TO SUPPORT A CRIMINAL PROSECUTION.  NO CONTENTION WAS MADE
THAT THE STATUTE ITSELF WAS INVALID.  THE TRIAL COURT DID NOT QUESTION
THAT THE STATUTE VALIDLY AND CLEARLY CONFERS POWER UPON THE SECRETARY
OF THE TREASURY TO ISSUE A PROPERLY WORDED REGULATION MAKING THE ACTS
OF THE APPELLEES UNLAWFUL.  THIS IS MADE APPARENT BY THE DISTRICT
JUDGE'S STATEMENT THAT "THE SECRETARY COULD VERY EASILY HAVE INDICATED
THAT EAST AND WEST GERMANY SHOULD BE CONSIDERED TWO SEPARATE COUNTRIES
FOR ALL PURPOSES WITHIN THE JURISDICTION OF THE TREASURY DEPARTMENT
...  ."  THUS THE DECISION WE ARE ASKED TO REVIEW IN NO WAY IMPINGES
UPON OR CONSTRUES THE LEGISLATION WHICH CONGRESS ENACTED.  COMPARE
UNITED STATES V. FOSTER, 233 U.S. 515, 522-523. 

WHETHER UNDER THE CRIMINAL APPEALS ACT AN APPEAL FROM AN ORDER OF
DISMISSAL BASED UPON A DISTRICT COURT'S CONSTRUCTION OF AN
ADMINISTRATIVE REGULATION MAY BE BROUGHT DIRECTLY HERE IS A QUESTION
WHICH APPARENTLY HAS NOT BEEN CONSIDERED UNTIL NOW.  THE COURT'S
RESOLUTION OF THE QUESTION SEEMS TO ME AT ODDS WITH THE TRADITION OF
STRICT CONSTRUCTION OF THE CRIMINAL APPEALS ACT AND CONTRARY TO THE
POLICY, REFLECTED NOTABLY IN THE ACT OF FEBRUARY 13, 1925, 43 STAT.
936, OF NARROWLY LIMITING THE APPELLATE JURISDICTION OF THIS COURT. 
(FN3)  "THE EXCEPTIONAL RIGHT OF APPEAL GIVEN TO THE GOVERNMENT BY THE
CRIMINAL APPEALS ACT IS STRICTLY LIMITED TO THE INSTANCES SPECIFIED." 
UNITED STATES V. BORDEN CO., 308 U.S. 188, 192.  SEE UNITED STATES V.
DICKINSON, 213 U.S. 92, 103. 

AVOIDANCE OF PROLONGED UNCERTAINTY AS TO THE VALIDITY OR MEANING OF A
FEDERAL CRIMINAL LAW IS OBVIOUSLY A DESIDERATUM IN THE EFFECTIVE
ADMINISTRATION OF JUSTICE.  MOREOVER, IT IS CLEARLY DESIRABLE TO BRING
TO THE ATTENTION OF CONGRESS AS PROMPTLY AS POSSIBLE ANY OCCASION FOR
LEGISLATIVE CLARIFICATION OR AMENDMENT.  WHEN A DISTRICT COURT HOLDS A
CRIMINAL STATUTE INVALID OR GIVES IT A CONSTRUCTION INCONSISTENT WITH
THE UNDERSTANDING OF THOSE IN THE EXECUTIVE BRANCH CHARGED WITH
ENFORCING IT, THIS POLICY IS WELL SERVED BY EXPEDITING ULTIMATE
DETERMINATION OF THE MATTER.  BUT EXPEDITED REVIEW OF THE JUDGMENT IN
THE PRESENT CASE SERVES NO SUCH POLICY.  (FN4)  UNCERTAINTY CAUSED BY
THE DISTRICT COURT'S DECISION IN THIS CASE COULD HAVE BEEN LAID TO REST
AT ANY TIME SIMPLY BY ISSUANCE OF A CLEARLY WORDED TREASURY
REGULATION. 

FOR THESE REASONS I WOULD HOLD THAT AN ADMINISTRATIVE REGULATION SUCH
AS IS HERE INVOLVED IS NOT A "STATUTE" WITHIN THE MEANING OF THIS
PROVISION OF THE CRIMINAL APPEALS ACT. 

               II. 

EVEN IF THE ABOVE VIEWS SHOULD PREVAIL, THE COURT WOULD STILL HAVE
JURISDICTION OF THIS APPEAL IF THE DISTRICT COURT'S JUDGMENT WAS ONE
"SUSTAINING A MOTION IN BAR, WHEN THE DEFENDANT HAS NOT BEEN PUT IN
JEOPARDY."  THE MOTION WHICH THE COURT SUSTAINED WAS FOR AN ORDER
DISMISSING THE INFORMATION "ON THE GROUND THAT IT DOES NOT STATE FACTS
SUFFICIENT TO CONSTITUTE AN OFFENSE AGAINST THE UNITED STATES."  I
THINK SUCH A PLEADING IS NOT "A MOTION IN BAR." 

UNTIL 1948 THE CRIMINAL APPEALS ACT PROVIDED FOR DIRECT APPEAL TO
THIS COURT FROM A "DECISION OR JUDGMENT SUSTAINING A SPECIAL PLEA IN
BAR, WHEN THE DEFENDANT HAS NOT BEEN PUT IN JEOPARDY."  (FN5) IN 1948
THE PHRASE "MOTION IN BAR" WAS SUBSTITUTED FOR "SPECIAL PLEA IN BAR." 
62 STAT. 845.  THE SOLE PURPOSE OF THE CHANGE WAS TO BRING THE
TERMINOLOGY OF THE CRIMINAL APPEALS ACT INTO CONFORMITY WITH RULE 12 OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE WHICH ABOLISHED SPECIAL PLEAS,
DEMURRERS AND MOTIONS TO QUASH AS SUCH, AND SUBSTITUTED MOTIONS TO
DISMISS OR TO GRANT APPROPRIATE RELIEF.  THE STATUTORY REVISION WAS NOT
INTENDED TO, AND DID NOT, EXPAND THE GOVERNMENT'S RIGHT OF APPEAL.  SEE
H.R. REP. NO. 304, 80TH CONG., 1ST SESS. A-177.  (FN6)  THAT RIGHT IS
STILL LIMITED TO A JUDGMENT SUSTAINING A MOTION OF A KIND HISTORICALLY
CONSIDERED A "SPECIAL PLEA IN BAR." 

THE LABEL WHICH THE DEFENDANT MAY HAVE ATTACHED TO HIS PLEADING IS OF
NO GREAT IMPORTANCE IN THIS CONNECTION.  UNITED STATES V. OPPENHEIMER,
242 U.S. 85, 86; UNITED STATES V. GOLDMAN, 277 U.S. 229, 236.  AS MR.
JUSTICE HOLMES REMARKED IN UNITED STATES V. STORRS, 272 U.S. 652, 654,
"THE QUESTION IS LESS WHAT IT IS CALLED THAN WHAT IT IS."  BUT, IN
DECIDING "WHAT IT IS," THE COURT'S OPINION IN STORRS UNDERSCORES THE
ESSENTIAL POINT - "THE STATUTE USES TECHNICAL WORDS, 'A SPECIAL PLEA IN
BAR,' AND WE SEE NO REASON FOR NOT TAKING THEM IN THEIR TECHNICAL
SENSE."  272 U.S., AT 654.  (FN7) 

AT COMMON LAW, A PLEA IN BAR HAD TO EITHER "DENY, OR CONFESS AND
AVOID THE FACTS STATED IN THE DECLARATION."  1 CHITTY, PLEADING (16TH
AM. ED. 1883), *551; STEPHEN, PRINCIPLES OF PLEADING (3D AM. ED. 1895),
89.  CONSEQUENTLY, THERE WERE TWO TYPES OF PLEAS IN BAR - PLEAS BY WAY
OF TRAVERSE AND PLEAS BY WAY OF CONFESSION AND AVOIDANCE.  IBID.
SHIPMAN, COMMON-LAW PLEADING (BALLANTINE ED. 1923), 30.  WHEN A PLEA IN
BAR WAS A PLEA OTHER THAN THE GENERAL ISSUE, IT WAS A "SPECIAL PLEA IN
BAR."  SHIPMAN, SUPRA, AT 337; STEPHEN, SUPRA, AT 179.  IN CIVIL CASES
PLEAS OF THIS CATEGORY INCLUDED THE SPECIFIC TRAVERSE (EQUIVALENT TO A
SPECIAL DENIAL), THE SPECIAL TRAVERSE (A DENIAL PRECEDED BY
INTRODUCTORY AFFIRMATIVE MATTER), AND THE PLEA OF CONFESSION AND
AVOIDANCE.  IN CRIMINAL CASES SPECIAL PLEAS IN BAR WERE PRIMARILY
UTILIZED BY WAY OF CONFESSION AND AVOIDANCE, E.G., AUTREFOIS ACQUIT,
AUTREFOIS CONVICT, AND PARDON.  2 BISHOP, NEW CRIMINAL PROCEDURE (2D
ED. 1913), SECS. 742, 805-818; HEARD, CRIMINAL PLEADING (1879), 279
296; 1 STARKIE, CRIMINAL PLEADING (2D ED. 1822), 316-338.  THE PLEA IN
CONFESSION AND AVOIDANCE DID NOT CONTEST THE FACTS ALLEGED IN THE
DECLARATION, BUT RELIED ON NEW MATTER WHICH WOULD DEPRIVE THOSE FACTS
OF THEIR ORDINARY LEGAL EFFECT.  STEPHEN, SUPRA, 89, 205-206; SHIPMAN,
SUPRA, 348; 1 CHITTY, SUPRA, *551-*552.  IT SET UP AFFIRMATIVE DEFENSES
WHICH WOULD BAR THE PROSECUTION. 

THIS CONCEPT OF A SPECIAL PLEA IN BAR AS A PLEA SIMILAR IN SUBSTANCE
TO CONFESSION AND AVOIDANCE HAS BEEN CONSISTENTLY FOLLOWED IN THE
DECISIONS OF THIS COURT.  THE CASES IN WHICH JURISDICTION HAS BEEN
ACCEPTED ON THE GROUND THAT THE DECISION BELOW SUSTAINED A SPECIAL PLEA
IN BAR HAVE INVARIABLY INVOLVED DISTRICT COURT DECISIONS UPHOLDING AN
AFFIRMATIVE DEFENSE IN THE NATURE OF A CONFESSION AND AVOIDANCE.  (FN8)
THE MOTION TO DISMISS WHICH WAS SUSTAINED BY THE DISTRICT COURT IN
THIS CASE WAS CLEARLY NOT THE EQUIVALENT OF A SPECIAL PLEA IN BAR, AS
THUS HISTORICALLY UNDERSTOOD, BUT, RATHER, THE EQUIVALENT OF A GENERAL
DEMURRER.  THE JUDGMENT SUSTAINING THAT MOTION IS, THEREFORE, NOT
DIRECTLY REVIEWABLE HERE. 

THIS VIEW IS FULLY CONFIRMED BY AN EXAMINATION OF THE STRUCTURE OF
THE CRIMINAL APPEALS ACT ITSELF.  FOR IF, AS THE COURT OF APPEALS
THOUGHT, A "MOTION IN BAR" IS ANY MOTION WHICH, IF SUSTAINED, WOULD
EXCULPATE THE DEFENDANTS, THEN A SIGNIFICANT PORTION OF THE PROVISION
OF THE CRIMINAL APPEALS ACT DISCUSSED IN PART I OF THIS OPINION WOULD
BE A MEANINGLESS REDUNDANCY.  EVERY MOTION BASED UPON THE INVALIDITY OF
A STATUTE WOULD, UNDER THE ROUGH AND READY DEFINITION OF THE COURT OF
APPEALS, ALSO BE A "MOTION IN BAR," BECAUSE A DISMISSAL BASED UPON SUCH
A MOTION WOULD WITH EQUAL EFFECTIVENESS "END THE CAUSE AND EXCULPATE
THE DEFENDANTS." 

I WOULD REMAND THIS CASE TO THE COURT OF APPEALS. 

FN1  THE RELEVANT PROVISIONS OF THE CRIMINAL APPEALS ACT ARE
REPRODUCED IN THE COURT'S OPINION, ANTE, P. 433, NOTE 2. 

FN2 THE RELEVANT PROVISIONS OF THIS STATUTE ARE REPRODUCED IN THE
COURT'S OPINION, ANTE, P. 432, NOTE 1. 

FN3  THE TERM "STATUTE" AS USED IN THE JURISDICTIONAL LEGISLATION
WHICH IS NOW 28 U.S.C.  SEC. 1257(2), PROVIDING FOR AN APPEAL TO THIS
COURT "WHERE IS DRAWN IN QUESTION THE VALIDITY OF A STATUTE OF ANY
STATE ON THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION,
TREATIES OR LAWS OF THE UNITED STATES, AND THE DECISION IS IN FAVOR OF
ITS VALIDITY," HAS FROM THE BEGINNING BEEN GIVEN A BROAD
INTERPRETATION, CONSISTENT WITH THE PURPOSE OF THIS LEGISLATION.  SEE
WILLIAMS V. BRUFFY, 96 U.S. 176, 182, 183; REINMAN V. LITTLE ROCK, 237
U.S. 171; LIVE OAK ASSN. V. RAILROAD COMM'N OF CALIFORNIA, 269 U.S.
354, 356.  BUT IT IS ONE THING TO SAY THAT "STATUTE" SHOULD BE
CONSTRUED BROADLY IN CASES INVOLVING ALLEGEDLY UNCONSTITUTIONAL STATE
ACTION, AND QUITE ANOTHER TO SAY THAT A SIMILAR CONSTRUCTION SHOULD BE
GIVEN TO THE TERM IN CASES INVOLVING SIMPLY THE MEANING OF REGULATIONS
MADE PURSUANT TO CONCEDEDLY VALID FEDERAL LEGISLATION. 

FN4  THE COURT NOTES "THE REMEDIAL PURPOSE OF THE ACT WAS TO AVERT
'THE DANGER OF FREQUENT CONFLICTS, REAL OR APPARENT, IN THE DECISIONS
OF THE VARIOUS  ...  (TRIAL COURTS), AND THE UNFORTUNATE RESULTS
THEREOF', AND TO ELIMINATE 'THE IMPOSSIBILITY OF THE GOVERNMENT'S
OBTAINING FINAL AND UNIFORM RULINGS BY RECOURSE TO A HIGHER COURT.'" 
ANTE, P. 436.  THIS PURPOSE HAS NOW TO A LARGE DEGREE BEEN FULFILLED BY
THE ACT OF MAY 9, 1942, 56 STAT. 271, GIVING JURISDICTION OVER
GOVERNMENT APPEALS IN CRIMINAL CASES TO THE COURTS OF APPEALS.  ANY
CONFLICT BETWEEN CIRCUITS COULD, OF COURSE, BE RESOLVED HERE.  SEE
SUPREME COURT RULE 19, PAR. 1(B). 

FN5  THIS WAS THE LANGUAGE OF THE ORIGINAL CRIMINAL APPEALS ACT (ACT
OF MARCH 2, 1907, C. 2564, 34 STAT. 1246), AND THE SAME WORDING WAS
CONTINUED IN SUBSEQUENT RE-ENACTMENTS.  SEE 18 U.S.C. (1940 ED.)  SEC. 
682; 18 U.S.C. (1946 ED.)  SEC.  682. 

FN6  THE 1948 REVISION SUPPLEMENTED RULE 54(C), FED. RULES CRIM.
PROC., WHICH PROVIDED THAT "THE WORDS 'DEMURRER,' 'MOTION TO QUASH,'
'PLEA IN ABATEMENT,' 'PLEA IN BAR,' AND 'SPECIAL PLEA IN BAR,' OR WORDS
TO THE SAME EFFECT, IN ANY ACT OF CONGRESS SHALL BE CONSTRUED TO MEAN
THE MOTION RAISING A DEFENSE OR OBJECTION PROVIDED IN RULE 12."  THE
NOTES OF THE ADVISORY COMMITTEE APPENDED TO RULE 54 MAKE CLEAR THAT AN
INTENT OF THIS PROVISION WAS TO INSURE THAT THE SCOPE OF THE
GOVERNMENT'S RIGHT OF APPEAL IN CRIMINAL CASES WOULD REMAIN UNCHANGED. 

FN7  THE OPINION IN UNITED STATES V. HARK, 320 U.S. 531, UPON WHOSE
GENERALIZED LANGUAGE THE COURT OF APPEALS AND MY BROTHER BRENNAN HERE
SO HEAVILY RELY, DID NOT CITE STORRS.  TO THE EXTENT THAT THE TWO
OPINIONS REFLECT DIVERGENT APPROACHES, STORRS SEEMS THE MORE CAREFULLY
CONSIDERED AND I WOULD FOLLOW IT. 

FN8  SEE, E.G., UNITED STATES V. CELESTINE, 215 U.S. 278 (MOTION
ALLEGING SPECIAL FACTS WHICH SHOWED THAT DEFENDANT WAS NOT SUBJECT TO
PROSECUTION BY THE UNITED STATES FOR THE CRIME CHARGED); UNITED STATES
V. OPPENHEIMER, 242 U.S. 85 (MOTION ALLEGING THAT RES JUDICATA BARRED
THE ACTION); UNITED STATES V. THOMPSON, 251 U.S. 407 (MOTION RAISING
THE AFFIRMATIVE DEFENSE THAT THE CHARGES CONTAINED IN THE INDICTMENT
HAD BEEN SUBMITTED TO A PREVIOUS GRAND JURY WHICH HAD REFUSED TO MAKE A
PRESENTMENT THEREON); UNITED STATES V. GOLDMAN, 277 U.S. 229 (MOTION
ALLEGING THAT THE STATUTE OF LIMITATIONS BARRED PROSECUTION); UNITED
STATES V. MURDOCK, 284 U.S. 141 (MOTION RAISING DEFENSE OF PRIVILEGE);
UNITED STATES V. HARK, 320 U.S. 531 (MOTION RAISING AFFIRMATIVE DEFENSE
OF REVOCATION OF PERTINENT PROVISIONS OF REGULATION WHICH APPELLEES
WERE CHARGED WITH VIOLATING). 
..END :















LEWIS V. BENEDICT COAL CORP. 361 U.S. 459 


NO. 18.  ARGUED OCTOBER 21, 1959 - DECIDED FEBRUARY 23, 1960* - 259 F.2D
346, JUDGMENT MODIFIED. 

*TOGETHER WITH NO. 19, UNITED MINE WORKERS OF AMERICA ET AL. V.
BENEDICT COAL CORP., ALSO ON CERTIORARI TO THE SAME COURT. 


RESPONDENT IS A PARTY TO A COLLECTIVE BARGAINING AGREEMENT BETWEEN
COAL OPERATORS AND THE UNITED MINE WORKERS PROVIDING FOR A UNION
WELFARE FUND MEETING THE REQUIREMENTS OF SEC.  302(C)(5) OF THE TAFT
HARTLEY ACT AND REQUIRING EACH COAL OPERATOR TO PAY INTO A TRUST FUND
"FOR THE SOLE AND EXCLUSIVE BENEFIT" OF THE EMPLOYEES, THEIR FAMILIES
AND DEPENDENTS A STIPULATED ROYALTY ON EACH TON OF COAL PRODUCED. 
RESPONDENT WITHHELD ROYALTIES IN AN AMOUNT CLAIMED TO EQUAL DAMAGES
WHICH IT HAD SUSTAINED AS A RESULT OF STRIKES ALLEGED TO BE IN
VIOLATION OF THE SAME AGREEMENT, AND THE TRUSTEES SUED TO RECOVER SUCH
ROYALTIES.  RESPONDENT DEFENDED ON THE GROUND THAT PERFORMANCE OF ITS
DUTY TO PAY THE ROYALTIES TO THE TRUSTEES, AS THIRD-PARTY BENEFICIARIES
OF THE AGREEMENT, WAS EXCUSED WHEN THE UNION VIOLATED THE AGREEMENT,
AND IT CROSS-CLAIMED AGAINST THE UNION FOR DAMAGES RESULTING FROM THE
STRIKES.  THE DISTRICT COURT AWARDED RESPONDENT A JUDGMENT ON ITS CLAIM
AGAINST THE UNION AND AWARDED THE TRUSTEES A JUDGMENT FOR THE UNPAID
ROYALTIES, BUT PROVIDED THAT THE TRUSTEES' JUDGMENT SHOULD BE PAID ONLY
OUT OF THE PROCEEDS OF RESPONDENT'S JUDGMENT.  THE COURT OF APPEALS
AFFIRMED EXCEPT AS TO THE AMOUNT OF THE DAMAGES AWARDED RESPONDENT. 
HELD: 

1.  SO FAR AS IT SUSTAINS THE HOLDING OF THE DISTRICT COURT THAT THE
UNION VIOLATED THE COLLECTIVE BARGAINING AGREEMENT, THE JUDGMENT OF THE
COURT OF APPEALS IS AFFIRMED BY AN EQUALLY DIVIDED COURT.  P. 464. 

2.  THE JUDGMENT OF THE COURT OF APPEALS IS MODIFIED TO PROVIDE THAT
THE DISTRICT COURT SHALL AMEND THE JUDGMENT IN FAVOR OF THE TRUSTEES TO
ALLOW IMMEDIATE AND UNCONDITIONAL EXECUTION, AND INTEREST, ON THE FULL
AMOUNT OF THE TRUSTEES' JUDGMENT AGAINST RESPONDENT.  PP. 464-471.  1
(A) THE COLLECTIVE BARGAINING AGREEMENT HERE INVOLVED IS NOT TO BE
CONSTRUED AS MAKING PERFORMANCE BY THE UNION OF ITS PROMISES A
CONDITION PRECEDENT TO RESPONDENT'S PROMISE TO PAY ROYALTIES TO THE
TRUSTEES, NOTWITHSTANDING A PROVISION TO THE EFFECT THAT THE AGREEMENT
"IS AN INTEGRATED INSTRUMENT AND ITS PROVISIONS ARE INTERDEPENDENT." 
PP. 464-466. 

(B)  REGARDLESS OF THE INFERENCES WHICH MAY BE DRAWN FROM OTHER THIRD
PARTY BENEFICIARY CONTRACTS, THE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT MUST EXPRESS THEIR MEANING IN UNEQUIVOCAL WORDS BEFORE THEY
CAN BE SAID TO HAVE AGREED THAT THE UNION'S BREACHES OF ITS PROMISES
SHOULD GIVE RISE TO A DEFENSE AGAINST THE DUTY ASSUMED BY AN EMPLOYER
TO CONTRIBUTE TO A WELFARE FUND MEETING THE REQUIREMENTS OF SEC.
302(C)(5); AND THE AGREEMENT HERE INVOLVED CONTAINS NO SUCH WORDS.  PP.
466-471. 

LEWIS ET AL., TRUSTEES, V. BENEDICT COAL CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL BITUMINOUS COAL WAGE AGREEMENT OF 1950, A COLLECTIVE
BARGAINING AGREEMENT BETWEEN COAL OPERATORS AND THE UNITED MINE WORKERS
OF AMERICA, PROVIDES FOR A UNION WELFARE FUND MEETING THE REQUIREMENTS
OF SEC. 302(C)(5) OF THE TAFT-HARTLEY ACT.  (FN1)  THE FUND IS THE
"UNITED MINE WORKERS OF AMERICA WELFARE AND RETIREMENT FUND OF 1950." 
EACH SIGNATORY COAL OPERATOR AGREED TO PAY INTO THE FUND A ROYALTY OF
30 CENTS, LATER INCREASED TO 40 CENTS, FOR EACH TON OF COAL PRODUCED
FOR USE OR FOR SALE. 

BENEDICT COAL CORPORATION, THE RESPONDENT IN BOTH NO. 18 AND NO. 19,
IS A SIGNATORY COAL OPERATOR.  FROM MARCH 5, 1950, THROUGH JULY 1953,
BENEDICT PRODUCED COAL UPON WHICH THE AMOUNT OF ROYALTY WAS CALCULATED
TO BE $177,762.92.  BENEDICT PAID $101,258.68 OF THIS AMOUNT BUT
WITHHELD $76,504.24.  THE PETITIONERS IN NO. 18, WHO ARE THE TRUSTEES
OF THE FUND, BROUGHT THIS ACTION TO RECOVER THAT BALANCE IN THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE.  (FN2)
BENEDICT'S MAIN DEFENSE WAS THAT THE PERFORMANCE OF THE DUTY TO PAY
ROYALTY TO THE TRUSTEES, REGARDING THEM AS THIRD-PARTY BENEFICIARIES OF
THE COLLECTIVE BARGAINING AGREEMENT, WAS EXCUSED WHEN THE PROMISEE
CONTRACTING PARTY, THE UNION AND ITS DISTRICT 28 - WHO ARE THE
PETITIONERS IN NO. 19 AND WHO WILL BE REFERRED TO AS THE UNION -
VIOLATED THE AGREEMENT BY STRIKES AND STOPPAGES OF WORK.  BENEDICT ALSO
CROSS-CLAIMED AGAINST THE UNION FOR DAMAGES SUSTAINED FROM THE STRIKES
AND STOPPAGES.  BY ITS ANSWER TO THE CROSS-CLAIM, THE UNION DENIED THAT
ITS CONDUCT VIOLATED THE AGREEMENT. 

THE JURY, USING A VERDICT FORM PROVIDED BY THE TRIAL JUDGE, FOUND
THAT THE TRUSTEES WERE ENTITLED TO RECOVER THE FULL AMOUNT OF THE
UNPAID ROYALTY BUT THAT BENEDICT WAS ENTITLED TO A SETOFF OF
$81,017.68; THE JURY ALSO GAVE A VERDICT TO BENEDICT FOR THAT SUM ON
ITS CROSS-CLAIM AGAINST THE UNION.  IN A SINGLE ENTRY, TWO JUDGMENTS
WERE ENTERED ON THIS VERDICT.  ONE WAS A JUDGMENT IN FAVOR OF BENEDICT
ON ITS CROSS-CLAIM ON WHICH IMMEDIATE EXECUTION WAS ORDERED, BUT WITH
DIRECTION THAT THE SUM COLLECTED FROM THE UNION BE PAID INTO THE
REGISTRY OF THE COURT.  THE OTHER WAS A JUDGMENT IN FAVOR OF THE
TRUSTEES FOR THE UNPAID BALANCE OF THE ROYALTY.  HOWEVER, EFFECT WAS
GIVEN TO BENEDICT'S DEFENSE IN THE TRUSTEES' SUIT BY REFUSING IMMEDIATE
EXECUTION, AND INTEREST, ON THE TRUSTEES' JUDGMENT AND ORDERING INSTEAD
THAT THAT JUDGMENT BE SATISFIED ONLY OUT OF THE PROCEEDS COLLECTED BY
BENEDICT ON ITS JUDGMENT AND PAID INTO THE REGISTRY OF THE COURT. 
(FN3) 

THE UNION AND THE TRUSTEES PROSECUTED SEPARATE APPEALS TO THE COURT
OF APPEALS FOR THE SIXTH CIRCUIT.  THE UNION ALLEGED THAT THE DISTRICT
COURT ERRED IN HOLDING THAT THE STRIKES AND STOPPAGES VIOLATED THE
COLLECTIVE BARGAINING AGREEMENT, CONTENDING THAT, PROPERLY CONSTRUED,
THE AGREEMENT DID NOT FORBID THE STRIKES AND STOPPAGES; IN THE
ALTERNATIVE, THE UNION URGED THAT THE DAMAGES AWARDED WERE EXCESSIVE. 
THE TRUSTEES ALLEGED AS ERROR, PRIMARILY, THE REFUSAL OF THE TRIAL
COURT TO ALLOW THEM IMMEDIATE AND UNCONDITIONAL EXECUTION, AND
INTEREST, ON THEIR JUDGMENT AGAINST BENEDICT. 

THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT EXCEPT AS TO THE
AMOUNT OF DAMAGES AWARDED TO BENEDICT ON ITS CROSS-CLAIM, WHICH THE
COURT ADJUDGED WAS EXCESSIVE.  THE COURT HELD THAT, UNDER THE EVIDENCE,
BENEDICT'S DAMAGES WOULD NOT EQUAL THE AMOUNT OF THE TRUSTEES' JUDGMENT
OF $76,504.26.  THE CASE WAS REMANDED FOR A REDETERMINATION OF
BENEDICT'S DAMAGES, WITH INSTRUCTIONS THAT "THE JUDGMENT IN FAVOR OF
THE TRUSTEES WILL THEN BE AMENDED BY THE DISTRICT COURT TO ALLOW
EXECUTION AND INTEREST ON THAT PART OF THE SAID JUDGMENT WHICH IS IN
EXCESS OF THE SET-OFF IN FAVOR OF BENEDICT AS SO REDETERMINED."  259
F.2D 346, 355.  THIS LEFT UNAFFECTED SO MUCH OF THE DISTRICT COURT'S
ORDER AS PREDICATED THE TRUSTEES' RECOVERY, TO THE EXTENT OF THE AMOUNT
OF BENEDICT'S JUDGMENT AS FINALLY DETERMINED, UPON BENEDICT'S RECOVERY
OF THAT JUDGMENT.  THE TRUSTEES AND THE UNION FILED SEPARATE PETITIONS
FOR CERTIORARI.  WE GRANTED THE TRUSTEES' PETITION, NO. 18, AND ALSO
THE UNION'S PETITION, NO. 19, EXCEPT THAT WE LIMITED THE LATTER GRANT
TO THE QUESTION WHETHER THE STRIKES AND STOPPAGES COMPLAINED OF BY
BENEDICT VIOLATED THE COLLECTIVE BARGAINING AGREEMENT.  359 U.S. 905. 

IN NO. 19, THE COURT IS EQUALLY DIVIDED.  THE JUDGMENT OF THE COURT
OF APPEALS, SO FAR AS IT SUSTAINS THE HOLDING OF THE DISTRICT COURT
THAT THE UNION VIOLATED THE COLLECTIVE BARGAINING AGREEMENT, IS
THEREFORE AFFIRMED. 

WE TURN TO THE QUESTION PRESENTED IN NO. 18, WHETHER THE LOWER COURTS
WERE CORRECT IN HOLDING IN EFFECT THAT BENEDICT MIGHT ASSERT THE
UNION'S BREACHES AS A DEFENSE TO THE TRUSTEES' SUIT, FOR TO THE EXTENT
BENEDICT (THE PROMISOR) DOES NOT COLLECT FROM THE UNION (THE PROMISEE)
THE UNION'S LIABILITY IS SET OFF AGAINST BENEDICT'S LIABILITY TO THE
THIRD-PARTY BENEFICIARY.  THE ANSWER TO THAT QUESTION REQUIRES, WE
THINK, OUR CONSIDERATION OF THE NATURE OF THE INTERESTS OF THE UNION,
THE COMPANY, AND THE TRUSTEES IN THE FUND UNDER THE COLLECTIVE
BARGAINING AGREEMENT. 

THE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT CREATING THE
FUND INCLUDE THE EXPRESS PROVISION THAT "THIS FUND IS AN IRREVOCABLE
TRUST CREATED PURSUANT TO SECTION 302(C) OF THE 'LABOR-MANAGEMENT
RELATIONS ACT, 1947.'"  ANOTHER PROVISION SPECIFIES THAT THE PURPOSES
OF THE FUND SHALL BE ALL PURPOSES "PROVIDED FOR OR PERMITTED IN SECTION
302(C)."  (FN4)  IN THIS WAY THE AGREEMENT PLAINLY DECLARES WHAT THE
STATUTE REQUIRES, NAMELY, THAT THE FUND SHALL BE USED "FOR THE SOLE AND
EXCLUSIVE BENEFIT" OF THE EMPLOYEES, THEIR FAMILIES AND DEPENDENTS. 
THUS, THE FUND IS IN NO WAY AN ASSET OR PROPERTY OF THE UNION. 

BENEDICT DOES NOT, HOWEVER, BASE ITS CLAIM OF SETOFF ON ANY
CONTENTION THAT THE ROYALTY WAS OWING TO THE UNION AND MIGHT BECAUSE OF
THIS BE APPLIED TO THE PAYMENT OF ITS DAMAGES.  BENEDICT'S POSITION IS
THAT IN AN AMOUNT EQUAL TO THE AMOUNT OF THE DAMAGES SUSTAINED FROM THE
UNION'S BREACHES, NO FUND PROPERTY CAME INTO EXISTENCE UNDER THE TERMS
OF THE COLLECTIVE BARGAINING AGREEMENT.  THIS DEPENDS UPON WHETHER THE
AGREEMENT IS TO BE CONSTRUED AS MAKING PERFORMANCE BY THE UNION OF ITS
PROMISES A CONDITION PRECEDENT TO BENEDICT'S PROMISE TO PAY ROYALTY TO
THE TRUSTEES.  BENEDICT ARGUES THAT THE CONTRACTING PARTIES EXPRESSED
THIS MEANING IN AN ARTICLE AT THE CLOSE OF THE AGREEMENT - "THIS
AGREEMENT IS AN INTEGRATED INSTRUMENT AND ITS RESPECTIVE PROVISIONS ARE
INTERDEPENDENT" - AND IN THE PROVISION IN ANOTHER ARTICLE THAT THE NO
STRIKE CLAUSES ARE "PART OF THE CONSIDERATION OF THIS CONTRACT." 
HOWEVER, THE SPECIFIC PROVISIONS OF THE ARTICLE CREATING THE FUND
PROVIDE:  (1) "DURING THE LIFE OF THIS COLLECTIVE BARGAINING AGREEMENT,
THERE SHALL BE PAID INTO SUCH FUND BY EACH OPERATOR SIGNATORY  ...  A
ROYALTY ON EACH TON OF COAL PRODUCED FOR USE OR FOR SALE."  (2) THE
OPERATOR IS REQUIRED TO MAKE PAYMENT "ON THE 10TH DAY OF EACH  ...
CALENDAR MONTH COVERING THE PRODUCTION OF ALL COAL FOR USE OR SALE
DURING THE PRECEDING MONTH."  (3) "THIS OBLIGATION OF EACH OPERATOR
SIGNATORY HERETO, WHICH IS SEVERAL AND NOT JOINT, TO SO PAY SUCH SUMS
SHALL BE A DIRECT AND CONTINUING OBLIGATION OF SAID OPERATOR DURING THE
LIFE OF THIS AGREEMENT  ... ."  (4) "TITLE TO ALL THE MONEYS PAID INTO
AND OR DUE AND OWING SAID FUND SHALL BE VESTED IN AND REMAIN
EXCLUSIVELY IN THE TRUSTEES OF THE FUND  ...  ."  (FN5)  THESE
PROVISIONS, RATHER THAN THE STIPULATIONS OF GENERAL APPLICATION, ARE
CONTROLLING.  THEIR CLEAR IMPORT IS THAT THE PARTIES MEANT THAT THE
DUTY TO PAY ROYALTY SHOULD ARISE ON THE PRODUCTION OF COAL INDEPENDENT
OF THE UNION'S PERFORMANCE.  INDEED, BENEDICT'S CONDUCT WAS NOT
CONSISTENT WITH THE INTERPRETATION WHICH IT IS NOW URGING.  BENEDICT
CONTINUED DESPITE THE BREACHES TO PERFORM ALL OF ITS SEVERAL PROMISES
UNDER THE CONTRACT, INCLUDING THE PROMISE TO PAY ROYALTY, PAYING OVER
$100,000 ON COAL PRODUCED DURING THE PERIOD IN DISPUTE AND WITHHOLDING
ONLY THE PORTION IN SUIT. 

BUT OUR CONCLUSION THAT THE UNION'S PERFORMANCE OF ITS PROMISES IS
NOT A CONDITION PRECEDENT TO BENEDICT'S DUTY TO PAY ROYALTY DOES NOT
FULLY ANSWER THE QUESTION WE ARE TO DECIDE.  FOR IT MAY REASONABLY BE
ARGUED THAT THE DAMAGES SUSTAINED BY BENEDICT MAY NEVERTHELESS AFFECT
THE AMOUNT OF THE TRUSTEES' RECOVERY.  PROFESSOR CORBIN, WHILE
ACKNOWLEDGING THAT "NO CASE OF THE SORT HAS BEEN DISCOVERED," (FN6)
STATES:  "IT MAY PERHAPS, BE REGARDED AS JUST TO MAKE THE RIGHT OF THE
BENEFICIARY NOT ONLY SUBJECT TO THE CONDITIONS PRECEDENT BUT ALSO
SUBJECT (AS IN THE CASE OF AN ASSIGNEE) TO COUNTER-CLAIMS AGAINST THE
PROMISEE - AT LEAST IF THEY ARISE OUT OF A BREACH BY THE PROMISEE OF
HIS DUTIES CREATED BY THE VERY SAME CONTRACT ON WHICH THE BENEFICIARY
SUES."  (FN7) USING TERMS LIKE "COUNTERCLAIM" OR "SETOFF" IN A THIRD
PARTY BENEFICIARY CONTEXT MAY BE CONFUSING.  IN A TWO-PARTY CONTRACT
SITUATION, WHEN A PROMISOR'S DUTY TO PERFORM IS ABSOLUTE, THE
PROMISEE'S BREACHES WILL NOT EXCUSE PERFORMANCE OF THAT DUTY; THE
PROMISOR HAS AN INDEPENDENT CLAIM AGAINST THE PROMISEE IN DAMAGES. 
FORMERLY THE PROMISOR WAS REQUIRED TO BRING A SEPARATE ACTION TO
RECOVER HIS DAMAGES.  UNDER MODERN PRACTICE, WHEN THE PROMISES ARE TO
PAY MONEY, OR ARE REDUCIBLE TO A MONEY AMOUNT, THE PROMISOR, WHEN SUED
BY THE PROMISEE, OFFSETS THE DAMAGES WHICH HE HAS SUSTAINED AGAINST THE
AMOUNT HE OWES, AND USUALLY OBTAINS A JUDGMENT FOR ANY EXCESS.  (FN8) 

HOWEVER, A THIRD-PARTY BENEFICIARY HAS MADE NO PROMISES AND THEREFORE
HAS BREACHED NO DUTY TO THE PROMISOR.  ACCORDINGLY, TO HOLD, AS THE
LOWER COURTS IN THIS CASE DID, THAT A PROMISOR MAY "SET OFF" THE
DAMAGES CAUSED BY THE PROMISEE'S BREACH IS ACTUALLY TO READ THE
CONTRACT, WHICH IS THE MEASURE OF THE THIRD PARTY'S RIGHTS, AS SO
PROVIDING.  IN OTHER WORDS, ALTHOUGH THE PROMISOR'S DUTY TO PERFORM HAS
BECOME FIXED BY THE OCCURRENCE OF APPLICABLE CONDITIONS PRECEDENT, THE
PARTIES MAY BE TAKEN TO HAVE AGREED THAT THE EXTENT OF THE PROMISOR'S
DUTY TO THE THIRD PARTY WILL BE AFFECTED BY THE PROMISEE'S BREACH OF
CONTRACT.  WHEN IT IS SAID THAT "IT MAY BE JUST" TO MAKE THE THIRD
PARTY SUBJECT TO THE COUNTERCLAIM, WHAT MUST BE MEANT IS THAT A COURT
SHOULD INFER AN INTENTION OF THE PROMISOR AND PROMISEE THAT THE THIRD
PARTY'S RIGHTS BE SO LIMITED. 

THIS MAY BE A DESIRABLE RULE OF CONSTRUCTION TO APPLY TO A THIRD
PARTY BENEFICIARY CONTRACT WHERE THE PROMISOR'S INTEREST IN OR
CONNECTION WITH THE THIRD PARTY, IN CONTRAST WITH THE PROMISEE'S,
BEGINS WITH THE PROMISE AND ENDS WITH ITS PERFORMANCE.  OF COURSE, IN
ENTERING INTO SUCH A CONTRACT, THE PROMISOR MAY BE HELD TO HAVE GIVEN
UP SOME DEFENSE AGAINST THE THIRD PARTY'S CLAIM TO PERFORMANCE OF THE
PROMISE, FOR EXAMPLE, THE RIGHT TO DEFEAT THAT CLAIM BY RESCINDING THE
CONTRACT AT ANY TIME HE AND THE PROMISEE AGREE.  NEVERTHELESS IT MAY BE
FAIR TO ASSUME THAT HAD THE PARTIES ANTICIPATED THE POSSIBILITY OF A
BREACH BY THE PROMISEE THEY WOULD HAVE PROVIDED THAT THE PROMISOR MIGHT
PROTECT HIMSELF BY SUCH MEANS AS WOULD BE AVAILABLE AGAINST THE
PROMISEE UNDER A TWO-PARTY CONTRACT.  (FN9)  THIS SUGGESTION HAS NOT
BEEN CRYSTALLIZED INTO A RULE OF CONSTRUCTION.  OUR PROBLEM IS WHETHER
WE SHOULD INFER SUCH AN INTENTION IN THIS CONTRACT BECAUSE THERE MAY BE
REASONS MAKING IT APPROPRIATE TO DO SO IN THE GENERALITY OF THIRD-PARTY
BENEFICIARY CONTRACTS. 

THIS COLLECTIVE BARGAINING AGREEMENT, HOWEVER, IS NOT A TYPICAL THIRD
PARTY BENEFICIARY CONTRACT.  THE PROMISOR'S INTEREST IN THE THIRD PARTY
HERE GOES FAR BEYOND THE MERE PERFORMANCE OF ITS PROMISE TO THAT THIRD
PARTY, I.E., BEYOND THE PAYMENT OF ROYALTY.  IT IS A COMMONPLACE OF
MODERN INDUSTRIAL RELATIONS FOR EMPLOYERS TO PROVIDE SECURITY FOR
EMPLOYEES AND THEIR FAMILIES TO ENABLE THEM TO MEET PROBLEMS ARISING
FROM UNEMPLOYMENT, ILLNESS, OLD AGE OR DEATH.  WHILE EMPLOYERS IN MANY
OTHER INDUSTRIES ASSUME THIS BURDEN DIRECTLY, THIS WELFARE FUND WAS
JOINTLY CREATED BY THE COAL INDUSTRY AND THE UNION FOR THAT PURPOSE. 
NOT ONLY HAS BENEDICT ENTERED INTO A LONG-TERM RELATIONSHIP WITH THE
UNION IN THIS REGARD, BUT IN COMPLIANCE WITH SEC. 302(C)(5)(B) IT HAS
ASSUMED EQUAL RESPONSIBILITY WITH THE UNION FOR THE MANAGEMENT OF THE
FUND.  IN A VERY REAL SENSE BENEDICT'S INTEREST IN THE SOUNDNESS OF THE
FUND AND ITS MANAGEMENT IS IN NO WAY LESS THAN THAT OF THE PROMISEE
UNION.  THIS OF ITSELF CAUTIONS AGAINST RELIANCE UPON LANGUAGE WHICH
DOES NOT EXPLICITLY PROVIDE THAT THE PARTIES CONTRACTED TO PROTECT
BENEDICT BY ALLOWING THE COMPANY TO SET OFF ITS DAMAGES AGAINST ITS
ROYALTY OBLIGATION. 

MOREOVER, UNLIKE THE USUAL THIRD-PARTY BENEFICIARY CONTRACT, THIS IS
AN INDUSTRY-WIDE AGREEMENT INVOLVING MANY PROMISORS.  IF BENEDICT AND
OTHER COAL OPERATORS HAVING DAMAGE CLAIMS AGAINST THE UNION FOR ITS
BREACHES MAY CURTAIL ROYALTY PAYMENTS, THE BURDEN WILL FALL IN THE
FIRST INSTANCE UPON THE EMPLOYEES AND THEIR FAMILIES ACROSS THE
COUNTRY.  ULTIMATELY THIS MIGHT RESULT IN PRESSURES UPON THE OTHER COAL
OPERATORS TO INCREASE THEIR ROYALTY PAYMENTS TO MAINTAIN THE PLANNED
SCHEDULE OF BENEFITS.  THE APPLICATION OF THE SUGGESTED RULE OF
CONSTRUCTION TO THIS CONTRACT WOULD REQUIRE US TO ASSUME THAT THE OTHER
COAL OPERATORS WHO ARE PARTIES TO THE AGREEMENT WERE WILLING TO RISK
THE THREAT OF DIMINUTION OF THE FUND IN ORDER TO PROTECT THOSE OF THEIR
NUMBER WHO MIGHT HAVE BECOME INVOLVED IN LOCAL LABOR DIFFICULTIES. 
FURTHERMORE, BENEDICT PROMISED IN THE COLLECTIVE BARGAINING AGREEMENT
TO PAY A SPECIFIED SCALE OF WAGES TO THE EMPLOYEES.  IT WOULD NOT BE
CONTENDED THAT BENEDICT MIGHT RECOUP ITS DAMAGES BY DECREASING THESE
WAGES.  THIS COULD BE RATIONALIZED BY SAYING THAT THE COVENANT TO PAY
WAGES IS INCLUDED IN SEPARATE CONTRACTS OF HIRE ENTERED INTO WITH EACH
EMPLOYEE.  THE ROYALTY PAYMENTS ARE REALLY ANOTHER FORM OF COMPENSATION
TO THE EMPLOYEES, (FN10) AND AS SUCH THE OBLIGATION TO PAY ROYALTY
MIGHT BE THOUGHT TO BE INCORPORATED INTO THE INDIVIDUAL EMPLOYMENT
CONTRACTS.  THIS IS NOT TO SAY THAT THE SAME TREATMENT SHOULD
NECESSARILY BE ACCORDED TO ROYALTY PAYMENTS AS IS ACCORDED TO WAGES,
BUT THE SIMILARITY MILITATES AGAINST THE INFERENCE THAT THE PARTIES
INTENDED THAT THE TRUSTEES' CLAIM BE SUBJECT TO OFFSET. 

FINALLY A CONSIDERATION WHICH IS NOT PRESENT IN THE CASE OF OTHER
THIRD-PARTY BENEFICIARY CONTRACTS IS THE IMPACT OF THE NATIONAL LABOR
POLICY.  SECTION 301(B) OF THE TAFT-HARTLEY ACT PROVIDES THAT "ANY
MONEY JUDGMENT AGAINST A LABOR ORGANIZATION IN A DISTRICT COURT OF THE
UNITED STATES SHALL BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN
ENTITY AND AGAINST ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY
INDIVIDUAL MEMBER OR HIS ASSETS."  AT THE LEAST, THIS EVIDENCES A
CONGRESSIONAL INTENTION THAT THE UNION AS AN ENTITY, LIKE A
CORPORATION, SHOULD IN THE ABSENCE OF AGREEMENT BE THE SOLE SOURCE OF
RECOVERY FOR INJURY INFLICTED BY IT.  (FN11)  ALTHOUGH THIS POLICY WAS
PROMPTED BY A SOLICITUDE FOR THE UNION MEMBERS, BECAUSE THEY MIGHT HAVE
LITTLE OPPORTUNITY TO PREVENT THE UNION FROM COMMITTING ACTIONABLE
WRONGS, (FN12) IT SEEMS TO US TO APPLY WITH EVEN GREATER FORCE TO
PROTECTING THE INTERESTS OF BENEFICIARIES OF THE WELFARE FUND, MANY OF
WHOM MAY BE RETIRED, OR MAY BE DEPENDENTS, AND THEREFORE WITHOUT ANY
DIRECT VOICE IN THE CONDUCT OF UNION AFFAIRS.  THUS THE NATIONAL LABOR
POLICY BECOMES AN IMPORTANT CONSIDERATION IN DETERMINING WHETHER THE
SAME INFERENCES WHICH MIGHT BE DRAWN AS TO OTHER THIRD-PARTY AGREEMENTS
SHOULD BE DRAWN HERE. 

LAW FOR THE ENFORCEMENT OF COLLECTIVE BARGAINING AGREEMENTS.  TEXTILE
WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448.  IN THE DISCHARGE OF THIS
FUNCTION, HAVING APPROPRIATE REGARD FOR THE SEVERAL CONSIDERATIONS WE
HAVE DISCUSSED, INCLUDING THE NATIONAL LABOR POLICY, WE HOLD THAT THE
PARTIES TO A COLLECTIVE BARGAINING AGREEMENT MUST EXPRESS THEIR MEANING
IN UNEQUIVOCAL WORDS BEFORE THEY CAN BE SAID TO HAVE AGREED THAT THE
UNION'S BREACHES OF ITS PROMISES SHOULD GIVE RISE TO A DEFENSE AGAINST
THE DUTY ASSUMED BY AN EMPLOYER TO CONTRIBUTE TO A WELFARE FUND MEETING
THE REQUIREMENTS OF SEC. 302(C)(5).  WE ARE UNABLE TO FIND SUCH WORDS
IN THE GENERAL PROVISIONS ALREADY MENTIONED - "THIS AGREEMENT IS AN
INTEGRATED INSTRUMENT AND ITS RESPECTIVE PROVISIONS ARE
INTERDEPENDENT," AND "THE CONTRACTING PARTIES AGREE THAT THE NO-STRIKE
CLAUSES ARE  ...  PART OF THE CONSIDERATION OF THIS CONTRACT" - OR
ELSEWHERE IN THE AGREEMENT.  THE JUDGMENT OF THE COURT OF APPEALS IS
THEREFORE MODIFIED TO PROVIDE THAT THE DISTRICT COURT SHALL AMEND THE
JUDGMENT IN FAVOR OF THE TRUSTEES TO ALLOW IMMEDIATE AND UNCONDITIONAL
EXECUTION, AND INTEREST, ON THE FULL AMOUNT OF THE TRUSTEES' JUDGMENT
FOR $76,504.26 AGAINST BENEDICT.  IT IS SO ORDERED. 

FN1  SECTION 302(C)(5) IS AS FOLLOWS: 

"THE PROVISIONS OF THIS SECTION MAKING IT UNLAWFUL FOR THE EMPLOYER
TO DELIVER AND A REPRESENTATIVE OF THE EMPLOYEES TO RECEIVE ANYTHING OF
VALUE SHALL NOT BE APPLICABLE  ...  WITH RESPECT TO MONEY OR OTHER
THING OF VALUE PAID TO A TRUST FUND ESTABLISHED BY SUCH REPRESENTATIVE,
FOR THE SOLE AND EXCLUSIVE BENEFIT OF THE EMPLOYEES OF SUCH EMPLOYER,
AND THEIR FAMILIES AND DEPENDENTS (OR OF SUCH EMPLOYEES, FAMILIES, AND
DEPENDENTS JOINTLY WITH THE EMPLOYEES OF OTHER EMPLOYERS MAKING SIMILAR
PAYMENTS, AND THEIR FAMILIES AND DEPENDENTS):  PROVIDED, THAT (A) SUCH
PAYMENTS ARE HELD IN TRUST FOR THE PURPOSE OF PAYING, EITHER FROM
PRINCIPAL OR INCOME OR BOTH, FOR THE BENEFIT OF EMPLOYEES, THEIR
FAMILIES AND DEPENDENTS, FOR MEDICAL OR HOSPITAL CARE, PENSIONS ON
RETIREMENT OR DEATH OF EMPLOYEES, COMPENSATION FOR INJURIES OR ILLNESS
RESULTING FROM OCCUPATIONAL ACTIVITY OR INSURANCE TO PROVIDE ANY OF THE
FOREGOING, OR UNEMPLOYMENT BENEFITS OR LIFE INSURANCE, DISABILITY AND
SICKNESS INSURANCE, OR ACCIDENT INSURANCE; (B) THE DETAILED BASIS ON
WHICH SUCH PAYMENTS ARE TO BE MADE IS SPECIFIED IN A WRITTEN AGREEMENT
WITH THE EMPLOYER, AND EMPLOYEES AND EMPLOYERS ARE EQUALLY REPRESENTED
IN THE ADMINISTRATION OF SUCH FUND, TOGETHER WITH SUCH NEUTRAL PERSONS
AS THE REPRESENTATIVES OF THE EMPLOYERS AND THE REPRESENTATIVES OF THE
EMPLOYEES MAY AGREE UPON AND IN THE EVENT THE EMPLOYER AND EMPLOYEE
GROUPS DEADLOCK ON THE ADMINISTRATION OF SUCH FUND AND THERE ARE NO
NEUTRAL PERSONS EMPOWERED TO BREAK SUCH DEADLOCK, SUCH AGREEMENT
PROVIDES THAT THE TWO GROUPS SHALL AGREE ON AN IMPARTIAL UMPIRE TO
DECIDE SUCH DISPUTE, OR IN EVENT OF THEIR FAILURE TO AGREE WITHIN A
REASONABLE LENGTH OF TIME, AN IMPARTIAL UMPIRE TO DECIDE SUCH DISPUTE
SHALL, ON PETITION OF EITHER GROUP, BE APPOINTED BY THE DISTRICT COURT
OF THE UNITED STATES FOR THE DISTRICT WHERE THE TRUST FUND HAS ITS
PRINCIPAL OFFICE, AND SHALL ALSO CONTAIN PROVISIONS FOR AN ANNUAL AUDIT
OF THE TRUST FUND, A STATEMENT OF THE RESULTS OF WHICH SHALL BE
AVAILABLE FOR INSPECTION BY INTERESTED PERSONS AT THE PRINCIPAL OFFICE
OF THE TRUST FUND AND AT SUCH OTHER PLACES AS MAY BE DESIGNATED IN SUCH
WRITTEN AGREEMENT; AND (C) SUCH PAYMENTS AS ARE INTENDED TO BE USED FOR
THE PURPOSE OF PROVIDING PENSIONS OR ANNUITIES FOR EMPLOYEES ARE MADE
TO A SEPARATE TRUST WHICH PROVIDES THAT THE FUNDS HELD THEREIN CANNOT
BE USED FOR ANY PURPOSE OTHER THAN PAYING SUCH PENSIONS OR ANNUITIES." 
ACT OF JUNE 23, 1947, SEC. 302, 61 STAT. 157, 29 U.S.C. SEC.
186(C)(5). 

FN2  THE ARTICLE CREATING THE FUND PROVIDES THAT "TITLE TO ALL THE
MONEYS PAID INTO AND OR DUE AND OWING SAID FUND SHALL BE VESTED IN AND
REMAIN EXCLUSIVELY IN THE TRUSTEES OF THE FUND  ...  ." 

FN3  THE DISTRICT COURT'S ENTRY READS IN PERTINENT PART AS FOLLOWS: 

"THEREUPON THIS ACTION CAME ON TO BE HEARD ON A FORMER DAY BEFORE THE
COURT AND A VERDICT WAS RENDERED BY THE JURY IN FAVOR OF BENEDICT COAL
CORPORATION IN THE SUM OF $81,017.68 AND IN FAVOR OF JOHN L. LEWIS,
CHARLES A. OWEN AND JOSEPHINE ROCHE (TRUSTEES OF THE FUND) IN THE SUM
OF $76,504.26, THE VERDICT CONTAINING AN OFFSET PROVISION. 

"IN ACCORDANCE WITH THE COURT'S INTERPRETATION OF THE OFFSET
PROVISION IN THE JURY'S VERDICT AND AS A MEANS OF CARRYING OUT THE
INTENDED EFFECT OF THE VERDICT, IT IS ORDERED THAT THE BENEDICT COAL
CORPORATION HAVE AND RECOVER THE SUM OF $81,017.68 FROM UNITED MINE
WORKERS OF AMERICA AND UNITED MINE WORKERS OF AMERICA DISTRICT 28, FOR
WHICH EXECUTION MAY ISSUE. 

"IT IS FURTHER ORDERED THAT SAID SUM OF $81,017.68 BE PAID INTO THE
REGISTRY OF THE COURT TO BE DISBURSED BY THE CLERK IN ACCORDANCE WITH
INSTRUCTIONS APPEARING BELOW. 

"IT IS FURTHER ORDERED THAT SAID TRUSTEES, IN ACCORDANCE WITH THE
VERDICT RENDERED IN THEIR FAVOR, HAVE AND RECOVER OF BENEDICT COAL
CORPORATION THE SUM OF $76,504.26, SAID RECOVERY TO BE HAD IN THE
MANNER FOLLOWING:  FROM THE AFORESAID $81,017.68 ORDERED PAID INTO THE
REGISTRY OF THE COURT, THAT THE SUM OF $76,504.26 BE PAID TO SAID
TRUSTEES.  THAT THE DIFFERENCE BETWEEN $76,504.26 AND $81,017.68 BE
PAID TO BENEDICT COAL CORPORATION." 

FN4  SEE NOTE 1, SUPRA. 

FN5  IN AN EARLIER AGREEMENT THE LAST CLAUSE READ "MONEYS PAID INTO
SAID FUND" AND WAS AMENDED TO READ "MONEYS PAID INTO AND OR DUE AND
OWING SAID FUND" AFTER THE DECISION IN LEWIS V. JACKSON & SQUIRE, INC.,
86 F. SUPP. 354, APPEAL DISMISSED, 181 F.2D 1011, HOLDING, AMONG OTHER
THINGS, THAT UNDER THE AGREEMENT, NO TRUST AROSE AS TO ROYALTY NOT PAID
INTO THE FUND. 

FN6  BUT CF. FULMER V. GOLDFARB, 171 TENN. 218, 101 S.W.2D 1108;
DEPUY V. LOOMIS, 74 PA.  SUPER.  497. 

FN7  4 CORBIN, CONTRACTS, SEC. 819. 

FN8  SEE 3 CORBIN, CONTRACTS, SEC. 709.  CF. 3 WILLISTON, CONTRACTS,
SEC. 883 (REV. ED.  1936).  COMPARE THORNTON V. WYNN, 12 WHEAT.  183,
WITH WITHERS V. GREENE, 9 HOW.  213. 

FN9  TO SOME DEGREE THE THIRD-PARTY BENEFICIARY MAY BE THOUGHT OF AS
BEING "SUBSTITUTED" FOR THE PROMISEE.  SEE DUNNING V. LEAVITT, 85 N.Y.
30, 35. 

FN10  SEE 93 CONG. REC. 4746-4747.  SEE ALSO S. REP. NO. 105, 80TH
CONG., 1ST SESS. 52 (SUPPLEMENTAL VIEWS). 

FN11  SEE 93 CONG. REC. 5014; ID., AT 3839.  CF. HEARINGS BEFORE
HOUSE COMMITTEE ON EDUCATION AND LABOR ON H.R. 8, H.R. 725, H.R. 880,
H.R. 1095, AND H.R. 1096, 80TH CONG., 1ST SESS. 135-136. 

FN12  SEE 93 CONG. REC. 6283. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THIS LITIGATION AROSE OUT OF AN AGREEMENT ENTERED INTO ON MARCH 5,
1950, BETWEEN COAL OPERATORS, INCLUDING RESPONDENT, AND UNITED MINE
WORKERS.  IT WAS THE OUTCOME OF COLLECTIVE BARGAINING BETWEEN THE
PARTIES TO FIX THE TERMS OF INDUSTRIAL RELATIONS, WAGES AND OTHER
CONDITIONS OF EMPLOYMENT, BETWEEN THE COAL OPERATORS AND THEIR
EMPLOYEES AS REPRESENTED BY THE UNION.  IT IS AN ELABORATE DOCUMENT OF
TWENTY PAGES, FORMULATING THE RIGHTS AND OBLIGATIONS OF THE UNION ON
THE ONE SIDE AND THE RIGHTS AND OBLIGATIONS OF THE OPERATORS ON THE
OTHER.  PART OF THE AGREEMENT CALLED FOR THE ESTABLISHMENT OF A WELFARE
AND RETIREMENT FUND FOR THE BENEFIT OF EMPLOYEES AND THEIR FAMILIES. 
THIS OBLIGATED THE RESPONDENT, AS ONE OF THE OPERATORS BOUND BY THE
AGREEMENT, TO PAY THE FUND A FIXED AMOUNT PER TON OF COAL THAT IT
PRODUCED DURING THE PERIOD IN CONTROVERSY.  THE NARROW QUESTION BEFORE
THE COURT IS WHETHER THE RESPONDENT OPERATOR MAY WITHHOLD FROM THE
AMOUNT IT IS OBLIGATED, AS A MATTER OF ARITHMETIC, TO PAY INTO THE
FUND, THE AMOUNT OF ASSESSABLE DAMAGE OWING IT FROM THE UNION IN
DISCHARGE OF THE UNION'S LIABILITY FOR VIOLATION OF ITS OBLIGATION
UNDER THE AGREEMENT. 

THE SUIT WAS BY THE TRUSTEES OF THE FUND, WHO CLAIMED THE PAYMENT IN
FULL OF THE SCHEDULED AMOUNTS TO BE PAID INTO THE FUND.  THIS LIABILITY
IS CONCEDED, SUBJECT HOWEVER TO DEDUCTION FOR THE AMOUNT OWING FROM THE
UNION TO BENEDICT ON THE BASIS OF JUDICIALLY DETERMINED LIABILITY.  THE
COURT OF APPEALS SUSTAINED THE RIGHT OF RESPONDENT TO SET OFF AGAINST
ITS OBLIGATION TO PAY THE DEFINED AMOUNT INTO THE FUND THE AMOUNT
ARISING OUT OF LIABILITY BY THE UNION FOR BREACH OF THE UNION'S
OBLIGATION UNDER THE SAME AGREEMENT. 

A CONSIDERED READING OF THE COURT'S OPINION COMPELS THE CONCLUSION
THAT IF THE AGREEMENT, WHICH IT IS THE COURT'S DUTY TO CONSTRUE, WERE
"A TYPICAL THIRD-PARTY BENEFICIARY CONTRACT" THE RESPONDENT WOULD NOT
HAVE TO PAY OVER THE FULL AMOUNT PAYABLE TO THE FUND BUT COULD WITHHOLD
THE AMOUNT WHICH IS OWING IT FOR BREACH OF THE UNION'S UNDERTAKING. 
THE COURT HOLDS THAT THIS IS NOT SUCH A CONTRACT, ALTHOUGH THE
AGREEMENT WAS NOT MERELY A SINGLE DOCUMENT WITH OBVIOUSLY INTERRELATED
INSTRUMENT AND ITS RESPECTIVE PROVISIONS ARE INTERDEPENDENT AND SHALL
BE EFFECTIVE FROM AND AFTER MARCH 5, 1950."  THE COURT JUSTIFIES
REJECTING WHAT IS ASSUMED TO BE APPLICABLE TO "A TYPICAL THIRD-PARTY
BENEFICIARY CONTRACT," PARTLY BY DEVISING A POLICY DISTILLED FROM TWO
PROVISIONS OF THE TAFT-HARTLEY ACT, SECS. 301(B) AND 302(C)(5), AND
PARTLY BY ITS ASSUMPTIONS ABOUT THE COMMUNITY OF INTEREST BETWEEN THE
EMPLOYER AND THE TRUST FUND IN THE ASSERTEDLY SPECIAL CONTEXT OF LABOR
RELATIONS. 

I HAVE NO DOUBT THAT LEGISLATION MAY BE A SOURCE FOR REASONING IN
COURT-MADE LAW.  BUT WHEN LEGISLATION IS THUS DRAWN UPON THERE SHOULD
BE A CLOSE RELATION BETWEEN THE TERMS OF AN ENACTMENT AND WHAT THE
COURTS DEDUCE THEREFROM AS A DIRECTION FOR ADJUDICATION.  I FIND NONE
SUCH HERE.  THE TWO PROVISIONS DRAWN UPON DO NOT AFFORD THE RADIATIONS
ATTRIBUTED TO THEM.  THE RELEVANT LANGUAGE OF SEC. 301(B) OF THE TAFT
HARTLEY ACT PROVIDES THAT "ANY MONEY JUDGMENT AGAINST A LABOR
ORGANIZATION ...  SHALL BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS
AN ENTITY AND AGAINST ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST
ANY INDIVIDUAL MEMBER OR HIS ASSETS."  THE TEXT DEALS EXPRESSLY ONLY
WITH THE ENFORCEMENT OF A MONEY JUDGMENT RENDERED AGAINST A LABOR
ORGANIZATION.  NO SUCH JUDGMENT IS INVOLVED IN THIS CASE.  THE
UNDOUBTED CONCERN OF CONGRESS BEHIND THIS PROVISION WAS TO AVOID THE
LIABILITY OF UNION MEMBERS SOLELY BY VIRTUE OF THEIR UNION MEMBERSHIP,
A LIABILITY NOTORIOUSLY IMPOSED BY THE LAWS OF SEVERAL OF THE STATES IN
1947 AND VIVIDLY REMEMBERED BY LABOR UNIONS BY REASON OF THE DANBURY
HATTERS' CASE IN FEDERAL COURTS.  SEE LOEWE V. LAWLOR, 208 U.S. 274
(1908); LAWLOR V. LOEWE, 235 U.S. 522 (1915); LOEWE V. SAVINGS BANK OF
DANBURY, 236 F. 444 (C.A.2D CIR. 1916).*  THE INTENT AND SCOPE OF SEC.
301(B) WERE ACCURATELY DESCRIBED IN THE SENATE REPORT ON WHAT BECAME
THE TAFT-HARTLEY ACT AS AFFORDING MEMBERS OF A UNION "ALL THE
ADVANTAGES OF LIMITED LIABILITY WITHOUT INCORPORATION OF THE UNION." 
S. REP. NO. 105, 80TH CONG., 1ST SESS., AT 16. 

*THE RESULT OF THIS LITIGATION WAS A JUDGMENT FOR $250,000 AGAINST
THE GOODS AND ESTATE OF OVER 150 NAMED DEFENDANTS AND ATTACHMENT WAS
ISSUED AGAINST THEM. 

NOR DOES ANY EMANATION FROM SEC. 302(C)(5) OF THE TAFT-HARTLEY ACT
NEGATE WHAT WOULD OTHERWISE DICTATE THE RIGHT OF SETOFF - SETOFF, BE IT
REMEMBERED, NOT A CONDITION ON BENEDICT'S DUTY TO PAY INTO THE FUND -
OF WHAT IS OWING TO BENEDICT FOR BREACH OF THE CONTRACT BY THE UNION
UNDER THE SAME CONTRACT BY WHICH BENEDICT PROMISED THE UNION TO PAY
INTO THE FUND FOR ITS MINED COAL.  THE FUNCTION OF SEC. 302(C)(5) IS TO
DEFINE THE CONDITIONS SET BY CONGRESS FOR PERMITTED INDUSTRIAL WELFARE
FUNDS.  IT WAS NOT AN IMPLIED QUALIFICATION OF JUST PRINCIPLES RELEVANT
TO THE ENFORCEMENT OF CONTRACTS GENERALLY.  ONLY THE OTHER DAY THE
COURT STATED THE PURPOSE OF THE CONGRESS IN ENACTING SEC. 302(C)(5): 
"CONGRESS BELIEVED THAT IF WELFARE FUNDS WERE ESTABLISHED WHICH DID NOT
DEFINE WITH SPECIFICITY THE BENEFITS PAYABLE THEREUNDER, A SUBSTANTIAL
DANGER EXISTED THAT SUCH FUNDS MIGHT BE EMPLOYED TO PERPETUATE CONTROL
OF UNION OFFICERS, FOR POLITICAL PURPOSES, OR EVEN FOR PERSONAL GAIN. 
SEE 92 CONG. REC. 4892-4894, 4899, 5181, 5345-5346; S. REP. NO. 105,
80TH CONG., 1ST SESS., AT 52; 93 CONG. REC. 4678, 4746-4747.  TO REMOVE
THESE DANGERS, SPECIFIC STANDARDS WERE ESTABLISHED TO ASSURE THAT
WELFARE FUNDS WOULD BE ESTABLISHED ONLY FOR PURPOSES WHICH CONGRESS
CONSIDERED PROPER AND EXPENDED ONLY FOR THE PURPOSES FOR WHICH THEY
WERE ESTABLISHED."  ARROYO V. UNITED STATES, 359 U.S. 419, 426. 

CONGRESS WAS CONCERNED WITH ABUSES BY UNION OFFICERS, E.G., UNITED
STATES V. RYAN, 350 U.S. 299.  IT GAVE NOT A THOUGHT TO WITHDRAWING THE
ENFORCEMENT OF AN AGREEMENT SUCH AS THE ONE BEFORE US FROM RULES
RELEVANT TO THE FAIR ADMINISTRATION OF JUSTICE. 

THE COURT QUOTES ONE OF THE TWIN LEADING AUTHORITIES ON THE LAW OF
CONTRACTS:  "IT MAY PERHAPS, BE REGARDED AS JUST TO MAKE THE RIGHT OF
THE BENEFICIARY NOT ONLY SUBJECT TO THE CONDITIONS PRECEDENT BUT ALSO
SUBJECT (AS IN THE CASE OF AN ASSIGNEE) TO COUNTER-CLAIMS AGAINST THE
PROMISEE - AT LEAST IF THEY ARISE OUT OF A BREACH BY THE PROMISEE OF
HIS DUTIES CREATED BY THE VERY SAME CONTRACT ON WHICH THE BENEFICIARY
SUES."  4 CORBIN, CONTRACTS, SEC. 819.  AS I UNDERSTAND IT, APART FROM
THE EFFECTS ATTRIBUTED TO SECS.  301(B) AND 302(C)(5), THE COURT
REJECTS THIS "JUST" VIEW AS SIMPLY NOT APPLICABLE TO THIS KIND OF A
COLLECTIVE BARGAINING AGREEMENT.  BUT THE RULE STATED BY PROFESSOR
CORBIN IS NOT A TECHNICAL RULE NARROWLY LIMITED TO PARTICULAR KINDS OF
CONTRACTS.  IT REFLECTS THE BROADER GENERALIZATION THAT UNDER A
CIVILIZED SYSTEM OF LAW ALL JUST PRESUPPOSITIONS OF AN AGREEMENT ARE TO
BE DEEMED PART OF IT, AND THAT COURTS, WHOSE DUTY IT IS TO DETERMINE
THE LEGAL CONSEQUENCES OF AGREEMENTS, SHOULD ATTRIBUTE TO AN AGREEMENT
SUCH JUST PRESUPPOSITIONS. 

UNDERLYING THE COURT'S VIEW IS THE ASSUMPTION THAT THE LAW OF
CONTRACTS IS A RIGOROUSLY CLOSED SYSTEM APPLICABLE TO A LIMITED CLASS
OF ARRANGEMENTS BETWEEN PARTIES ACTING AT ARM'S LENGTH, AND THAT
COLLECTIVE BARGAINING AGREEMENTS ARE A VERY SPECIAL CLASS OF VOLUNTARY
AGREEMENTS TO WHICH THE GENERAL LAW PERTAINING TO THE CONSTRUCTION AND
ENFORCEMENT OF CONTRACTS IS NOT RELEVANT.  AS A MATTER OF FACT, THE
GOVERNING RULES PERTAINING TO CONTRACTS RECOGNIZE THE DIVERSITY OF
SITUATIONS IN RELATION TO WHICH CONTRACTS ARE MADE AND DULY ALLOW FOR
THESE VARIANT FACTORS IN CONSTRUING AND ENFORCING CONTRACTS.  AND SO,
OF COURSE, IN CONSTRUING AGREEMENTS FOR THE RECIPROCAL RIGHTS AND
OBLIGATIONS OF EMPLOYERS AND EMPLOYEES, ACCOUNT MUST BE TAKEN OF THE
MANY IMPLICATIONS RELEVANT TO CONSTRUING A DOCUMENT THAT GOVERNS
INDUSTRIAL RELATIONS.  THERE IS NO REASON FOR JETTISONING PRINCIPLES OF
FAIRNESS AND JUSTICE THAT ARE AS RELEVANT TO THE LAW'S ATTITUDE IN THE
ENFORCEMENT OF COLLECTIVE BARGAINING AGREEMENTS AS THEY ARE TO
CONTRACTS DEALING WITH OTHER AFFAIRS, EVEN GIVING DUE REGARD TO THE
CIRCUMSTANCES OF INDUSTRIAL LIFE AND TO THE LIBRETTO THAT THIS
FURNISHES IN CONSTRUING COLLECTIVE BARGAINING AGREEMENTS. 

ONE OF THE MOST EXPERIENCED STUDENTS OF LABOR LAW HAS WARNED AGAINST
THE DANGERS OF SUCH AN APPROACH: 

"THE EASE WITH WHICH ONE CAN SHOW THAT COLLECTIVE BARGAINING
AGREEMENTS HAVE CHARACTERISTICS WHICH PRECLUDE THE APPLICATION OF SOME
OF THE FAMILIAR PRINCIPLES OF CONTRACTS AND AGENCY CREATES THE DANGER
THAT THOSE WHO ARE KNOWLEDGEABLE ABOUT COLLECTIVE BARGAINING WILL
DEMAND THAT WE DISCARD ALL THE PRECEPTS OF CONTRACT LAW AND CREATE A
NEW LAW OF COLLECTIVE BARGAINING AGREEMENTS.  I HAVE ALREADY EXPRESSED
THE VIEW THAT THE COURTS WOULD IGNORE THE PLEA BUT SURELY IT IS UNWISE
EVEN IF THEY WOULD SUSTAIN IT.  MANY LEGAL RULES HAVE HARDENED INTO
CONCEPTUAL DOCTRINES WHICH LAWYERS INVOKE WITH LITTLE THOUGHT FOR THE
UNDERLYING REASONS, BUT THE DOCTRINES THEMSELVES REPRESENT AN
ACCUMULATION OF TESTED WISDOM, THEY ARE BOTTOMED UPON NOTIONS OF
FAIRNESS AND SOUND PUBLIC POLICY, AND IT WOULD BE A FOOLISH WASTE TO
CLIMB THE LADDER ALL OVER AGAIN JUST BECAUSE THE SUGGESTED PRINCIPLES
WERE DEVELOPED IN OTHER CONTEXTS AND SOME OF THEM ARE DEMONSTRABLY
INAPPOSITE  ...  ."  COX, THE LEGAL NATURE OF COLLECTIVE BARGAINING
AGREEMENTS, IN COLLECTIVE BARGAINING AND THE LAW (UNIV.  OF MICH. LAW
SCHOOL), PP. 121-122. 

JUDGES WILL DO WELL TO HEED THIS ADMONITION.  THEIR EXPERIENCE MAKES
THEM MUCH MORE
..END :










NATIONAL LABOR RELATIONS BOARD V. INSURANCE AGENTS' INTERNATIONAL UNION,
AFL-CIO 361 U.S. 477 


NO. 15.  ARGUED DECEMBER 7-8, 1959 - DECIDED FEBRUARY 23, 1960 - 104
U.S. APP. D.C. 218, 260 F.2D 736, AFFIRMED. 


ON A COMPLAINT BEFORE THE NATIONAL LABOR RELATIONS BOARD CHARGING THAT
A UNION HAD REFUSED TO BARGAIN IN GOOD FAITH WITH AN EMPLOYER IN
VIOLATION OF SEC. 8 (B)(3) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, IT APPEARED THAT THE UNION HAD CONFERRED WITH THE EMPLOYER AT
THE BARGAINING TABLE FOR THE PURPOSE AND WITH THE DESIRE OR REACHING AN
AGREEMENT ON CONTRACT TERMS, BUT THAT, DURING THE NEGOTIATIONS, IT HAS
SPONSORED CONCERTED ON-THE-JOB ACTIVITIES BY ITS MEMBERS OF A HARASSING
NATURE DESIGNED TO INTERFERE WITH THE CONDUCT OF THE EMPLOYER'S
BUSINESS, FOR THE AVOWED PURPOSE OF PUTTING ECONOMIC PRESSURE ON THE
EMPLOYER TO ACCEDE TO THE UNION'S BARGAINING DEMANDS.  HELD:  SUCH
TACTICS WOULD NOT SUPPORT A FINDING BY THE BOARD THAT THE UNION HAD
FAILED TO BARGAIN IN GOOD FAITH AS REQUIRED BY SEC. 8 (B)(3).  PP. 478
500. 

(1)  THE BASIC PREMISE OF THE DUTY OF COLLECTIVE BARGAINING REQUIRED
IN THE ACT IS THAT IT IS A PROCESS IN WHICH THE PARTIES DEAL WITH EACH
OTHER IN A SERIOUS, GOOD-FAITH DESIRE TO REACH AGREEMENT AND TO ENTER
INTO A CONTRACT ORDERING THEIR INDUSTRIAL RELATIONSHIP.  CONGRESS DID
NOT INTEND THAT THE BOARD CONTROL THE SUBSTANTIVE TERMS OF COLLECTIVE
BARGAINING CONTRACTS THROUGH THE ADMINISTRATION OF THIS REQUIREMENT;
AND IT ADDED SEC. 8(D) IN THE TAFT-HARTLEY ACT TO MAKE THE PROPER
CONSTRUCTION OF THE DUTY CLEAR.  PP. 483-487. 

(2)  BY ADDING SEC. 8(B)(3) TO THE ACT THROUGH THE TAFT-HARTLEY
AMENDMENTS, CONGRESS INTENDED TO REQUIRE OF UNIONS THE SAME STANDARD OF
GOOD FAITH IN COLLECTIVE BARGAINING THAT IT HAD ALREADY REQUIRED OF
EMPLOYERS.  P. 487. 

(3)  SECTION 8(B)(3) DOES NOT AUTHORIZE THE BOARD TO INFER A LACK OF
GOOD FAITH IN BARGAINING ON THE PART OF A UNION SOLELY BECAUSE THE
UNION RESORTS TO TACTICS DESIGNED TO EXERT ECONOMIC PRESSURE DURING THE
NEGOTIATIONS.  PP. 488-490. 

(4)  THE USE OF ECONOMIC PRESSURE IS NOT INCONSISTENT WITH THE DUTY
OF BARGAINING IN GOOD FAITH; AND THE BOARD IS NOT EMPOWERED UNDER SEC.
8(B)(3) TO DISTINGUISH AMONG VARIOUS UNION ECONOMIC WEAPONS AND TO
BRAND THOSE HERE INVOLVED INCONSISTENT WITH GOOD-FAITH COLLECTIVE
BARGAINING.  PP. 490-496. 

(A)  A DIFFERENT CONCLUSION IS NOT REQUIRED ON THE THEORY THAT A
TOTAL STRIKE IS A CONCERTED ACTIVITY PROTECTED AGAINST EMPLOYER
INTERFERENCE BY SECS. 7 AND 8(A)(1) OF THE ACT, WHEREAS THE ACTIVITY
HERE INVOLVED IS NOT A PROTECTED CONCERTED ACTIVITY.  EVEN IF AN
ACTIVITY IS NOT PROTECTED AGAINST DISCIPLINARY ACTION THAT DOES NOT
NECESSARILY MEAN THAT IT AMOUNTS TO A REFUSAL TO BARGAIN IN GOOD
FAITH.  PP. 492-495. 

(B)  A DIFFERENT CONCLUSION IS NOT REQUIRED ON THE THEORY THAT,
BECAUSE AN ORTHODOX "TOTAL" STRIKE IS "TRADITIONAL," ITS USE MUST BE
TAKEN AS BEING CONSISTENT WITH SEC. 8(B)(3); WHEREAS THE TACTICS HERE
INVOLVED ARE NOT "TRADITIONAL" OR "NORMAL" AND, THEREFORE, NEED NOT BE
SO VIEWED.  PP. 495-496. 

(5)  TO CONSTRUE SEC. 8(B)(3) AS AUTHORIZING THE BOARD TO ACT AS AN
ARBITER OF THE SORT OF ECONOMIC WEAPONS THE PARTIES CAN USE IN SEEKING
TO GAIN ACCEPTANCE OF THEIR BARGAINING DEMANDS WOULD INJECT THE BOARD
INTO THE SUBSTANTIVE ASPECTS OF THE BARGAINING PROCESS TO AN EXTENT
THAT CONGRESS DID NOT INTEND AND HAS NOT AUTHORIZED.  PP. 496-500. 

NATIONAL LABOR RELATIONS BOARD V. INSURANCE AGENTS' INTERNATIONAL UNION,
AFL-CIO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN IMPORTANT ISSUE OF THE SCOPE OF THE NATIONAL
LABOR RELATIONS BOARD'S AUTHORITY UNDER SEC. 8(B)(3) OF THE NATIONAL
LABOR RELATIONS ACT, (FN1) WHICH PROVIDES THAT "IT SHALL BE AN UNFAIR
LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS  ...  TO REFUSE
TO BARGAIN COLLECTIVELY WITH AN EMPLOYER, PROVIDED IT IS THE
REPRESENTATIVE OF HIS EMPLOYEES  ...  ."  THE PRECISE QUESTION IS
WHETHER THE BOARD MAY FIND THAT A UNION, WHICH CONFERS WITH AN EMPLOYER
WITH THE DESIRE OF REACHING AGREEMENT ON CONTRACT TERMS, HAS
NEVERTHELESS REFUSED TO BARGAIN COLLECTIVELY, THUS VIOLATING THAT
PROVISION, SOLELY AND SIMPLY BECAUSE DURING THE NEGOTIATIONS IT SEEKS
TO PUT ECONOMIC PRESSURE ON THE EMPLOYER TO YIELD TO ITS BARGAINING
DEMANDS BY SPONSORING ON-THE-JOB CONDUCT DESIGNED TO INTERFERE WITH THE
CARRYING ON OF THE EMPLOYER'S BUSINESS. 

SINCE 1949 THE RESPONDENT INSURANCE AGENTS' INTERNATIONAL UNION AND
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA HAVE NEGOTIATED COLLECTIVE
BARGAINING AGREEMENTS COVERING DISTRICT AGENTS EMPLOYED BY PRUDENTIAL
IN 35 STATES AND THE DISTRICT OF COLUMBIA.  THE PRINCIPAL DUTIES OF A
PRUDENTIAL DISTRICT AGENT ARE TO COLLECT PREMIUMS AND TO SOLICIT NEW
BUSINESS IN AN ASSIGNED LOCALITY KNOWN IN THE TRADE AS HIS "DEBIT."  HE
HAS NO FIXED OR REGULAR WORKING HOURS EXCEPT THAT HE MUST REPORT AT HIS
DISTRICT OFFICE TWO MORNINGS A WEEK AND REMAIN FOR TWO OR THREE HOURS
TO DEPOSIT HIS COLLECTIONS, PREPARE AND SUBMIT REPORTS, AND ATTEND
MEETINGS TO RECEIVE SALES AND OTHER INSTRUCTIONS.  HE IS PAID
COMMISSIONS ON COLLECTIONS MADE AND ON NEW POLICIES WRITTEN; HIS ONLY
FIXED COMPENSATION IS A WEEKLY PAYMENT OF $4.50 INTENDED PRIMARILY TO
COVER HIS EXPENSES. 

IN JANUARY 1956 PRUDENTIAL AND THE UNION BEGAN THE NEGOTIATION OF A
NEW CONTRACT TO REPLACE AN AGREEMENT EXPIRING IN THE FOLLOWING MARCH. 
BARGAINING WAS CARRIED ON CONTINUOUSLY FOR SIX MONTHS BEFORE THE TERMS
OF THE NEW CONTRACT WERE AGREED UPON ON JULY 17, 1956.  (FN2)  IT IS
NOT QUESTIONED THAT, IF IT STOOD ALONE, THE RECORD OF NEGOTIATIONS
WOULD ESTABLISH THAT THE UNION CONFERRED IN GOOD FAITH FOR THE PURPOSE
AND WITH THE DESIRE OF REACHING AGREEMENT WITH PRUDENTIAL ON A
CONTRACT. 

HOWEVER, IN APRIL 1956, PRUDENTIAL FILED A SEC. 8(B)(3) CHARGE OF
REFUSAL TO BARGAIN COLLECTIVELY AGAINST THE UNION.  THE CHARGE WAS
BASED UPON ACTIONS OF THE UNION AND ITS MEMBERS OUTSIDE THE CONFERENCE
ROOM, OCCURRING AFTER THE OLD CONTRACT EXPIRED IN MARCH.  THE UNION HAD
ANNOUNCED IN FEBRUARY THAT IF AGREEMENT ON THE TERMS OF THE NEW
CONTRACT WAS NOT REACHED WHEN THE OLD CONTRACT EXPIRED, THE UNION
MEMBERS WOULD THEN PARTICIPATE IN A "WORK WITHOUT A CONTRACT" PROGRAM -
WHICH MEANT THAT THEY WOULD ENGAGE IN CERTAIN PLANNED, CONCERTED ON-THE
JOB ACTIVITIES DESIGNED TO HARASS THE COMPANY. 

A COMPLAINT OF VIOLATION OF SEC. 8(B)(3) ISSUED ON THE CHARGE AND
HEARINGS BEGAN BEFORE THE BARGAINING WAS CONCLUDED.  (FN3)  IT WAS
DEVELOPED IN THE EVIDENCE THAT THE UNION'S HARASSING TACTICS INVOLVED
ACTIVITIES BY THE MEMBER AGENTS SUCH AS THESE:  REFUSAL FOR A TIME TO
SOLICIT NEW BUSINESS, AND REFUSAL (AFTER THE WRITING OF NEW BUSINESS
WAS RESUMED) TO COMPLY WITH THE COMPANY'S REPORTING PROCEDURES; REFUSAL
TO PARTICIPATE IN THE COMPANY'S "MAY POLICYHOLDERS' MONTH CAMPAIGN";
REPORTING LATE AT DISTRICT OFFICES THE DAYS THE AGENTS WERE SCHEDULED
TO ATTEND THEM, AND REFUSING TO PERFORM CUSTOMARY DUTIES AT THE
OFFICES, INSTEAD ENGAGING THERE IN "SIT-IN-MORNINGS," "DOING WHAT COMES
NATURALLY" AND LEAVING AT NOON AS A GROUP; ABSENTING THEMSELVES FROM
SPECIAL BUSINESS CONFERENCES ARRANGED BY THE COMPANY; PICKETING AND
DISTRIBUTING LEAFLETS OUTSIDE THE VARIOUS OFFICES OF THE COMPANY ON
SPECIFIED DAYS AND HOURS AS DIRECTED BY THE UNION; DISTRIBUTING
LEAFLETS EACH DAY TO POLICYHOLDERS AND OTHERS AND SOLICITING
POLICYHOLDERS' SIGNATURES ON PETITIONS DIRECTED TO THE COMPANY; AND
PRESENTING THE SIGNED POLICYHOLDERS' PETITIONS TO THE COMPANY AT ITS
HOME OFFICE WHILE SIMULTANEOUSLY ENGAGING IN MASS DEMONSTRATIONS
THERE. 

THE HEARING EXAMINER FILED A REPORT RECOMMENDING THAT THE COMPLAINT
BE DISMISSED.  THE EXAMINER NOTED THAT THE BOARD IN THE SO-CALLED
PERSONAL PRODUCTS CASE, TEXTILE WORKERS UNION, 108 N.L.R.B. 743, HAD
DECLARED SIMILAR UNION ACTIVITIES TO CONSTITUTE A PROHIBITED REFUSAL TO
BARGAIN; BUT SINCE THE BOARD'S ORDER IN THAT CASE WAS SET ASIDE BY THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, 97 U.S. APP.
D.C. 35, 227 F.2D 409, HE DID NOT CONSIDER THAT HE WAS BOUND TO FOLLOW
IT. 

HOWEVER, THE BOARD ON REVIEW ADHERED TO ITS RULING IN THE PERSONAL
PRODUCTS CASE, REJECTED THE TRIAL EXAMINER'S RECOMMENDATION, AND
ENTERED A CEASE-AND-DESIST ORDER, 119 N.L.R.B. 768.  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ALSO ADHERED TO ITS
DECISION IN THE PERSONAL PRODUCTS CASE, AND, AS IN THAT CASE, SET ASIDE
THE BOARD'S ORDER.  104 U.S. APP. D.C. 218, 260 F.2D 736.  WE GRANTED
THE BOARD'S PETITION FOR CERTIORARI TO REVIEW THE IMPORTANT QUESTION
PRESENTED.  358 U.S. 944. 

THE HEARING EXAMINER FOUND THAT THERE WAS NOTHING IN THE RECORD,
APART FROM THE MENTIONED ACTIVITIES OF THE UNION DURING THE
NEGOTIATIONS, THAT COULD BE RELIED UPON TO SUPPORT AN INFERENCE THAT
THE UNION HAD NOT FULFILLED ITS STATUTORY DUTY; IN FACT NOTHING ELSE
WAS RELIED UPON BY THE BOARD'S GENERAL COUNSEL IN PROSECUTING THE
COMPLAINT.  (FN4)  THE HEARING EXAMINER'S ANALYSIS OF THE CONGRESSIONAL
DESIGN IN ENACTING THE STATUTORY DUTY TO BARGAIN LED HIM TO CONCLUDE
THAT THE BOARD WAS NOT AUTHORIZED TO FIND THAT SUCH ECONOMICALLY
HARASSING ACTIVITIES CONSTITUTED A SEC. 8(B)(3) VIOLATION.  THE BOARD'S
OPINION ANSWERS FLATLY "WE DO NOT AGREE" AND PROCEEDS TO SAY "  ...
THE RESPONDENT'S RELIANCE UPON HARASSING TACTICS DURING THE COURSE OF
NEGOTIATIONS FOR THE AVOWED PURPOSE OF COMPELLING THE COMPANY TO
CAPITULATE TO ITS TERMS IS THE ANTITHESIS OF REASONED DISCUSSION IT WAS
DUTY-BOUND TO FOLLOW.  INDEED, IT CLEARLY REVEALED AN UNWILLINGNESS TO
SUBMIT ITS DEMANDS TO THE CONSIDERATION OF THE BARGAINING TABLE WHERE
ARGUMENT, PERSUASION, AND THE FREE INTER-CHANGE OF VIEWS COULD TAKE
PLACE.  IN SUCH CIRCUMSTANCES, THE FACT THAT THE RESPONDENT CONTINUED
TO CONFER WITH THE COMPANY AND WAS DESIROUS OF CONCLUDING AN AGREEMENT
DOES NOT ALONE ESTABLISH THAT IT FULFILLED ITS OBLIGATION TO BARGAIN IN
GOOD FAITH  ...  ."  119 N.L.R.B., AT 769, 770-771.  THUS THE BOARD'S
VIEW IS THAT IRRESPECTIVE OF THE UNION'S GOOD FAITH IN CONFERRING WITH
THE EMPLOYER AT THE BARGAINING TABLE FOR THE PURPOSE AND WITH THE
DESIRE OF REACHING AGREEMENT ON CONTRACT TERMS, ITS TACTICS DURING THE
COURSE OF THE NEGOTIATIONS CONSTITUTED PER SE A VIOLATION OF SEC.
8(B)(3).  (FN5)  ACCORDINGLY, AS IS SAID IN THE BOARD'S BRIEF, "THE
ISSUE HERE  ...  COMES DOWN TO WHETHER THE BOARD IS AUTHORIZED UNDER
THE ACT TO HOLD THAT SUCH TACTICS, WHICH THE ACT DOES NOT SPECIFICALLY
FORBID BUT SECTION 7 DOES NOT PROTECT, (FN6) SUPPORT A FINDING OF A
FAILURE TO BARGAIN IN GOOD FAITH AS REQUIRED BY SECTION 8(B)(3)." 

FIRST.  THE BILL WHICH BECAME THE WAGNER ACT INCLUDED NO PROVISION
SPECIFICALLY IMPOSING A DUTY ON EITHER PARTY TO BARGAIN COLLECTIVELY. 
SENATOR WAGNER THOUGHT THAT THE BILL REQUIRED BARGAINING IN GOOD FAITH
WITHOUT SUCH A PROVISION.  (FN7)  HOWEVER, THE SENATE COMMITTEE IN
CHARGE OF THE BILL CONCLUDED THAT IT WAS DESIRABLE TO INCLUDE A
PROVISION MAKING IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO REFUSE
TO BARGAIN COLLECTIVELY IN ORDER TO ASSURE THAT THE ACT WOULD ACHIEVE
ITS PRIMARY OBJECTIVE OF REQUIRING AN EMPLOYER TO RECOGNIZE A UNION
SELECTED BY HIS EMPLOYEES AS THEIR REPRESENTATIVE.  IT WAS BELIEVED
THAT OTHER RIGHTS GUARANTEED BY THE ACT WOULD NOT BE MEANINGFUL IF THE
EMPLOYER WAS NOT UNDER OBLIGATION TO CONFER WITH THE UNION IN AN EFFORT
TO ARRIVE AT TERMS OF AN AGREEMENT.  IT WAS SAID IN THE SENATE REPORT: 

"BUT, AFTER DELIBERATION, THE COMMITTEE HAS CONCLUDED THAT THIS FIFTH
UNFAIR LABOR PRACTICE SHOULD BE INSERTED IN THE BILL.  IT SEEMS CLEAR
THAT A GUARANTEE OF THE RIGHT OF EMPLOYEES TO BARGAIN COLLECTIVELY
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING IS A MERE DELUSION IF IT
IS NOT ACCOMPANIED BY THE CORRELATIVE DUTY ON THE PART OF THE OTHER
PARTY TO RECOGNIZE SUCH REPRESENTATIVES  ...  AND TO NEGOTIATE WITH
THEM IN A BONA FIDE EFFORT TO ARRIVE AT A COLLECTIVE BARGAINING
AGREEMENT.  FURTHERMORE, THE PROCEDURE OF HOLDING GOVERNMENTALLY
SUPERVISED ELECTIONS TO DETERMINE THE CHOICE OF REPRESENTATIVES OF
EMPLOYEES BECOMES OF LITTLE WORTH IF AFTER THE ELECTION ITS RESULTS ARE
FOR ALL PRACTICAL PURPOSES IGNORED.  EXPERIENCE HAS PROVED THAT NEITHER
OBEDIENCE TO LAW NOR RESPECT FOR LAW IS ENCOURAGED BY HOLDING FORTH A
RIGHT UNACCOMPANIED BY FULFILLMENT.  SUCH A COURSE PROVOKES CONSTANT
STRIFE, NOT PEACE."  S. REP. NO. 573, 74TH CONG., 1ST SESS., P. 12. 

HOWEVER, THE NATURE OF THE DUTY TO BARGAIN IN GOOD FAITH THUS IMPOSED
UPON EMPLOYERS BY SEC. 8(5) OF THE ORIGINAL ACT (FN8) WAS NOT
SWEEPINGLY CONCEIVED.  THE CHAIRMAN OF THE SENATE COMMITTEE DECLARED:
"WHEN THE EMPLOYEES HAVE CHOSEN THEIR ORGANIZATION, WHEN THEY HAVE
SELECTED THEIR REPRESENTATIVES, ALL THE BILL PROPOSES TO DO IS TO
ESCORT THEM TO THE DOOR OF THEIR EMPLOYER AND SAY, 'HERE THEY ARE, THE
LEGAL REPRESENTATIVES OF YOUR EMPLOYEES.'  WHAT HAPPENS BEHIND THOSE
DOORS IS NOT INQUIRED INTO, AND THE BILL DOES NOT SEEK TO INQUIRE INTO
IT."  (FN9) 

THE LIMITATION IMPLIED BY THE LAST SENTENCE HAS NOT BEEN IN PRACTICE
MAINTAINED - PRACTICALLY, IT COULD HARDLY HAVE BEEN - BUT THE
UNDERLYING PURPOSE OF THE REMARK HAS REMAINED THE MOST BASIS PURPOSE OF
THE STATUTORY PROVISION.  THAT PURPOSE IS THE MAKING EFFECTIVE OF THE
DUTY OF MANAGEMENT TO EXTEND RECOGNITION TO THE UNION; THE DUTY OF
MANAGEMENT TO BARGAIN IN GOOD FAITH IS ESSENTIALLY A COROLLARY OF ITS
DUTY TO RECOGNIZE THE UNION.  DECISIONS UNDER THIS PROVISION REFLECT
THIS.  FOR EXAMPLE, AN EMPLOYER'S UNILATERAL WAGE INCREASE DURING THE
BARGAINING PROCESSES TENDS TO SUBVERT THE UNION'S POSITION AS THE
REPRESENTATIVE OF THE EMPLOYEES IN MATTERS OF THIS NATURE, AND HENCE
HAS BEEN CONDEMNED AS A PRACTICE VIOLATIVE OF THIS STATUTORY
PROVISION.  SEE LABOR BOARD V. CROMPTON-HIGHLAND MILLS, INC., 337 U.S.
217.  AND AS SUGGESTED, THE REQUIREMENT OF COLLECTIVE BARGAINING,
ALTHOUGH SO PREMISED, NECESSARILY LED BEYOND THE DOOR OF, AND INTO, THE
CONFERENCE ROOM.   THE FIRST ANNUAL REPORT OF THE BOARD DECLARED:
"COLLECTIVE BARGAINING IS SOMETHING MORE THAN THE MERE MEETING OF AN
EMPLOYER WITH THE REPRESENTATIVES OF HIS EMPLOYEES; THE ESSENTIAL THING
IS RATHER THE SERIOUS INTENT TO ADJUST DIFFERENCES AND TO REACH AN
ACCEPTABLE COMMON GROUND  ...  .  THE BOARD HAS REPEATEDLY ASSERTED
THAT GOOD FAITH ON THE PART OF THE EMPLOYER IS AN ESSENTIAL INGREDIENT
OF COLLECTIVE BARGAINING."  (FN10)  THIS STANDARD HAD EARLY JUDICIAL
APPROVAL, E.G., LABOR BOARD V. GRISWOLD MFG. CO., 106 F.2D 713. 
COLLECTIVE BARGAINING, THEN, IS NOT SIMPLY AN OCCASION FOR PURELY
FORMAL MEETINGS BETWEEN MANAGEMENT AND LABOR, WHILE EACH MAINTAINS AN
ATTITUDE OF "TAKE IT OR LEAVE IT"; IT PRESUPPOSES A DESIRE TO REACH
ULTIMATE AGREEMENT, TO ENTER INTO A COLLECTIVE BARGAINING CONTRACT. 
SEE HEINZ CO. V. LABOR BOARD, 311 U.S. 514.  THIS WAS THE SORT OF
RECOGNITION THAT CONGRESS, IN THE WAGNER ACT, WANTED EXTENDED TO LABOR
UNIONS; RECOGNITION AS THE BARGAINING AGENT OF THE EMPLOYEES IN A
PROCESS THAT LOOKED TO THE ORDERING OF THE PARTIES' INDUSTRIAL
RELATIONSHIP THROUGH THE FORMATION OF A CONTRACT.  SEE TEAMSTERS UNION
V. OLIVER, 358 U.S. 283, 295. 

BUT AT THE SAME TIME, CONGRESS WAS GENERALLY NOT CONCERNED WITH THE
SUBSTANTIVE TERMS ON WHICH THE PARTIES CONTRACTED.  CF. TERMINAL
RAILROAD ASSN. V. BROTHERHOOD OF RAILROAD TRAINMEN, 318 U.S. 1, 6. 
OBVIOUSLY THERE IS TENSION BETWEEN THE PRINCIPLE THAT THE PARTIES NEED
NOT CONTRACT ON ANY SPECIFIC TERMS AND A PRACTICAL ENFORCEMENT OF THE
PRINCIPLE THAT THEY ARE BOUND TO DEAL WITH EACH OTHER IN A SERIOUS
ATTEMPT TO RESOLVE DIFFERENCES AND REACH A COMMON GROUND.  AND IN FACT
CRITICISM OF THE BOARD'S APPLICATION OF THE "GOOD-FAITH" TEST AROSE
FROM THE BELIEF THAT IT WAS FORCING EMPLOYERS TO YIELD TO UNION DEMANDS
IF THEY WERE TO AVOID A SUCCESSFUL CHARGE OF UNFAIR LABOR PRACTICE. 
(FN11) THUS, IN 1947 IN CONGRESS THE FEAR WAS EXPRESSED THAT THE BOARD
HAD "GONE VERY FAR, IN THE GUISE OF DETERMINING WHETHER OR NOT
EMPLOYERS HAD BARGAINED IN GOOD FAITH, IN SETTING ITSELF UP AS THE
JUDGE OF WHAT CONCESSIONS AN EMPLOYER MUST MAKE AND OF THE PROPOSALS
AND COUNTERPROPOSALS THAT HE MAY OR MAY NOT MAKE."  H.R. REP. NO. 245,
80TH CONG., 1ST SESS., P. 19.  SINCE THE BOARD WAS NOT VIEWED BY
CONGRESS AS AN AGENCY WHICH SHOULD EXERCISE ITS POWERS TO ARBITRATE THE
PARTIES' SUBSTANTIVE SOLUTIONS OF THE ISSUES IN THEIR BARGAINING, A
CHECK ON THIS APPREHENDED TREND WAS PROVIDED BY WRITING THE GOOD-FAITH
TEST OF BARGAINING INTO SEC. 8(D) OF THE ACT.  THAT SECTION DEFINES
COLLECTIVE BARGAINING AS FOLLOWS:    "FOR THE PURPOSES OF THIS SECTION,
TO BARGAIN COLLECTIVELY IS THE PERFORMANCE OF THE MUTUAL OBLIGATION OF
THE EMPLOYER AND THE REPRESENTATIVE OF THE EMPLOYEES TO MEET AT
REASONABLE TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO WAGES, HOURS,
AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN
AGREEMENT, OR ANY QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A
WRITTEN CONTRACT INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY
EITHER PARTY, BUT SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE
TO A PROPOSAL OR REQUIRE THE MAKING OF A CONCESSION  ...  ."  (FN12) 
THE SAME PROBLEMS AS TO WHETHER POSITIONS TAKEN AT THE BARGAINING TABLE
VIOLATE THE GOOD-FAITH TEST CONTINUE TO ARISE UNDER THE ACT AS
AMENDED.  SEE LABOR BOARD V. TRUITT MFG. CO., 351 U.S. 149; LABOR BOARD
V. BORG-WARNER CORP., 356 U.S. 342, 349.  BUT IT REMAINS CLEAR THAT
SEC. 8(D) WAS AN ATTEMPT BY CONGRESS TO PREVENT THE BOARD FROM
CONTROLLING THE SETTLING OF THE TERMS OF COLLECTIVE BARGAINING
AGREEMENTS.  LABOR BOARD V. AMERICAN NATIONAL INS. CO., 343 U.S. 395,
404. 

SECOND.  AT THE SAME TIME AS IT WAS STATUTORILY DEFINING THE DUTY TO
BARGAIN COLLECTIVELY, CONGRESS, BY ADDING SEC. 8(B)(3) OF THE ACT
THROUGH THE TAFT-HARTLEY AMENDMENTS, IMPOSED THAT DUTY ON LABOR
ORGANIZATIONS.  UNIONS OBVIOUSLY ARE FORMED FOR THE VERY PURPOSE OF
BARGAINING COLLECTIVELY; BUT THE LEGISLATIVE HISTORY MAKES IT PLAIN
THAT CONGRESS WAS WARY OF THE POSITION OF SOME UNIONS, AND WANTED TO
ENSURE THAT THEY WOULD APPROACH THE BARGAINING TABLE WITH THE SAME
ATTITUDE OF WILLINGNESS TO REACH AN AGREEMENT AS HAD BEEN ENJOINED ON
MANAGEMENT EARLIER.  IT INTENDED TO PREVENT EMPLOYEE REPRESENTATIVES
FROM PUTTING FORTH THE SAME "TAKE IT OR LEAVE IT" ATTITUDE THAT HAD
BEEN CONDEMNED IN MANAGEMENT.  93 CONG. REC.  4135, 4363, 5005. 
(FN13) 

THIRD.  IT IS APPARENT FROM THE LEGISLATIVE HISTORY OF THE WHOLE ACT
THAT THE POLICY OF CONGRESS IS TO IMPOSE A MUTUAL DUTY UPON THE PARTIES
TO CONFER IN GOOD FAITH WITH A DESIRE TO REACH AGREEMENT, IN THE BELIEF
THAT SUCH AN APPROACH FROM BOTH SIDES OF THE TABLE PROMOTES THE OVERALL
DESIGN OF ACHIEVING INDUSTRIAL PEACE.  SEE LABOR BOARD V. JONES &
LAUGHLIN STEEL CORP., 301 U.S. 1, 45.  DISCUSSION CONDUCTED UNDER THAT
STANDARD OF GOOD FAITH MAY NARROW THE ISSUES, MAKING THE REAL DEMANDS
OF THE PARTIES CLEARER TO EACH OTHER, AND PERHAPS TO THEMSELVES, AND
MAY ENCOURAGE AN ATTITUDE OF SETTLEMENT THROUGH GIVE AND TAKE.  THE
MAINSTREAM OF CASES BEFORE THE BOARD AND IN THE COURTS REVIEWING ITS
ORDERS, UNDER THE PROVISIONS FIXING THE DUTY TO BARGAIN COLLECTIVELY,
IS CONCERNED WITH INSURING THAT THE PARTIES APPROACH THE BARGAINING
TABLE WITH THIS ATTITUDE.  BUT APART FROM THIS ESSENTIAL STANDARD OF
CONDUCT, CONGRESS INTENDED THAT THE PARTIES SHOULD HAVE WIDE LATITUDE
IN THEIR NEGOTIATIONS, UNRESTRICTED BY ANY GOVERNMENTAL POWER TO
REGULATE THE SUBSTANTIVE SOLUTION OF THEIR DIFFERENCES.  SEE TEAMSTERS
UNION V. OLIVER, SUPRA, AT 295. 

WE BELIEVE THAT THE BOARD'S APPROACH IN THIS CASE - UNLESS IT CAN BE
DEFENDED, IN TERMS OF SEC. 8(B)(3), AS RESTING ON SOME UNIQUE CHARACTER
OF THE UNION TACTICS INVOLVED HERE - MUST BE TAKEN AS PROCEEDING FROM
AN ERRONEOUS VIEW OF COLLECTIVE BARGAINING.  IT MUST BE REALIZED THAT
COLLECTIVE BARGAINING, UNDER A SYSTEM WHERE THE GOVERNMENT DOES NOT
ATTEMPT TO CONTROL THE RESULTS OF NEGOTIATIONS, CANNOT BE EQUATED WITH
AN ACADEMIC COLLECTIVE SEARCH FOR TRUTH - OR EVEN WITH WHAT MIGHT BE
THOUGHT TO BE THE IDEAL OF ONE.  THE PARTIES - EVEN GRANTING THE
MODIFICATION OF VIEWS THAT MAY COME FROM A REALIZATION OF ECONOMIC
INTERDEPENDENCE - STILL PROCEED FROM CONTRARY AND TO AN EXTENT
ANTAGONISTIC VIEWPOINTS AND CONCEPTS OF SELF-INTEREST.  THE SYSTEM HAS
NOT REACHED THE IDEAL OF THE PHILOSOPHIC NOTION THAT PERFECT
UNDERSTANDING AMONG PEOPLE WOULD LEAD TO PERFECT AGREEMENT AMONG THEM
ON VALUES.  THE PRESENCE OF ECONOMIC WEAPONS IN RESERVE, AND THEIR
ACTUAL EXERCISE ON OCCASION BY THE PARTIES, IS PART AND PARCEL OF THE
SYSTEM THAT THE WAGNER AND TAFT-HARTLEY ACTS HAVE RECOGNIZED.  ABSTRACT
LOGICAL ANALYSIS MIGHT FIND INCONSISTENCY BETWEEN THE COMMAND OF THE
STATUTE TO NEGOTIATE TOWARD AN AGREEMENT IN GOOD FAITH AND THE
LEGITIMACY OF THE USE OF ECONOMIC WEAPONS, FREQUENTLY HAVING THE MOST
SERIOUS EFFECT UPON INDIVIDUAL WORKERS AND PRODUCTIVE ENTERPRISES, TO
INDUCE ONE PARTY TO COME TO THE TERMS DESIRED BY THE OTHER.  BUT THE
TRUTH OF THE MATTER IS THAT AT THE PRESENT STATUTORY STAGE OF OUR
NATIONAL LABOR RELATIONS POLICY, THE TWO FACTORS - NECESSITY FOR GOOD
FAITH BARGAINING BETWEEN PARTIES, AND THE AVAILABILITY OF ECONOMIC
PRESSURE DEVICES TO EACH TO MAKE THE OTHER PARTY INCLINE TO AGREE ON
ONE'S TERMS - EXIST SIDE BY SIDE.  ONE WRITER RECOGNIZES THIS BY
DESCRIBING ECONOMIC FORCE AS "A PRIME MOTIVE POWER FOR AGREEMENTS IN
FREE COLLECTIVE BARGAINING."  (FN14)  DOUBTLESS ONE FACTOR INFLUENCES
THE OTHER; THERE MAY BE LESS NEED TO APPLY ECONOMIC PRESSURE IF THE
AREAS OF CONTROVERSY HAVE BEEN DEFINED THROUGH DISCUSSION; AND AT THE
SAME TIME, NEGOTIATION POSITIONS ARE APT TO BE WEAK OR STRONG IN
ACCORDANCE WITH THE DEGREE OF ECONOMIC POWER THE PARTIES POSSESS.  A
CLOSE STUDENT OF OUR NATIONAL LABOR RELATIONS LAWS WRITES: "COLLECTIVE
BARGAINING IS CURIOUSLY AMBIVALENT EVEN TODAY.  IN ONE ASPECT
COLLECTIVE BARGAINING IS A BRUTE CONTEST OF ECONOMIC POWER SOMEWHAT
MASKED BY POLITE MANNERS AND VOLUMINOUS STATISTICS.  AS THE RELATION
MATURES, LILLIPUTIAN BONDS CONTROL THE OPPOSING CONCENTRATIONS OF
ECONOMIC POWER; THEY LACK LEGAL SANCTIONS BUT ARE NONETHELESS EFFECTIVE
TO CONTAIN THE USE OF POWER.  INITIALLY IT MAY BE ONLY FEAR OF THE
ECONOMIC CONSEQUENCES OF DISAGREEMENT THAT TURNS THE PARTIES TO FACTS,
REASON, A SENSE OF RESPONSIBILITY, A RESPONSIVENESS TO GOVERNMENT AND
PUBLIC OPINION, AND MORAL PRINCIPLE; BUT IN TIME THESE FORCES GENERATE
THEIR OWN COMPULSIONS, AND NEGOTIATING A CONTRACT APPROACHES THE IDEAL
OF INFORMED PERSUASION."  COX, THE DUTY TO BARGAIN IN GOOD FAITH, 71
HARV. L. REV. 1401, 1409. 

FOR SIMILAR REASONS, WE THINK THE BOARD'S APPROACH INVOLVES AN
INTRUSION INTO THE SUBSTANTIVE ASPECTS OF THE BARGAINING PROCESS -
AGAIN, UNLESS THERE IS SOME SPECIFIC WARRANT FOR ITS CONDEMNATION OF
THE PRECISE TACTICS INVOLVED HERE.  THE SCOPE OF SEC.  8(B)(3) AND THE
LIMITATIONS ON BOARD POWER WHICH WERE THE DESIGN OF SEC. 8(D) ARE
EXCEEDED, WE HOLD, BY INFERRING A LACK OF GOOD FAITH NOT FROM ANY
DEFICIENCIES OF THE UNION'S PERFORMANCE AT THE BARGAINING TABLE BY
REASON OF ITS ATTEMPTED USE OF ECONOMIC PRESSURE, BUT SOLELY AND SIMPLY
BECAUSE TACTICS DESIGNED TO EXERT ECONOMIC PRESSURE WERE EMPLOYED
DURING THE COURSE OF THE GOOD-FAITH NEGOTIATIONS.  THUS THE BOARD IN
THE GUISE OF DETERMINING GOOD OR BAD FAITH IN NEGOTIATIONS COULD
REGULATE WHAT ECONOMIC WEAPONS A PARTY MIGHT SUMMON TO ITS AID.  AND IF
THE BOARD COULD REGULATE THE CHOICE OF ECONOMIC WEAPONS THAT MAY BE
USED AS PART OF COLLECTIVE BARGAINING, IT WOULD BE IN A POSITION TO
EXERCISE CONSIDERABLE INFLUENCE UPON THE SUBSTANTIVE TERMS ON WHICH THE
PARTIES CONTRACT.  AS THE PARTIES' OWN DEVICES BECAME MORE LIMITED, THE
GOVERNMENT MIGHT HAVE TO ENTER EVEN MORE DIRECTLY INTO THE NEGOTIATION
OF COLLECTIVE AGREEMENTS.  OUR LABOR POLICY IS NOT PRESENTLY ERECTED ON
A FOUNDATION OF GOVERNMENT CONTROL OF THE RESULTS OF NEGOTIATIONS.  SEE
S. REP. NO. 105, 80TH CONG., 1ST SESS., P. 2.  NOR DOES IT CONTAIN A
CHARTER FOR THE NATIONAL LABOR RELATIONS BOARD TO ACT AT LARGE IN
EQUALIZING DISPARITIES OF BARGAINING POWER BETWEEN EMPLOYER AND UNION. 

FOURTH.  THE USE OF ECONOMIC PRESSURE, AS WE HAVE INDICATED, IS OF
ITSELF NOT AT ALL INCONSISTENT WITH THE DUTY OF BARGAINING IN GOOD
FAITH.  BUT IN THREE CASES IN RECENT YEARS, THE BOARD HAS ASSUMED THE
POWER TO LABEL PARTICULAR UNION ECONOMIC WEAPONS INCONSISTENT WITH THAT
DUTY.  SEE THE PERSONAL PRODUCTS CASE, (FN15) SUPRA, 108 N.L.R.B. 743,
SET ASIDE, 97 U.S. APP. D.C. 35, 227 F.2D 409; (FN16) THE BOONE COUNTY
CASE, UNITED MINE WORKERS, 117 N.L.R.B. 1095, SET ASIDE, 103 U.S. APP.
D.C. 207, 257 F.2D 211; (FN17) AND THE PRESENT CASE.  THE BOARD FREELY
(AND WE THINK CORRECTLY) CONCEDED HERE THAT A "TOTAL" STRIKE CALLED BY
THE UNION WOULD NOT HAVE SUBJECTED IT TO SANCTIONS UNDER SEC. 8(B)(3),
AT LEAST IF IT WERE CALLED AFTER THE OLD CONTRACT, WITH ITS NO-STRIKE
CLAUSE, HAD EXPIRED.  CF. UNITED MINE WORKERS, SUPRA.  THE BOARD'S
OPINION IN THE INSTANT CASE IS NOT SO UNEQUIVOCAL AS THIS CONCESSION
(AND THEREFORE PERHAPS MORE LOGICAL).  (FN18)  BUT IN THE LIGHT OF IT
AND THE PRINCIPLES WE HAVE ENUNCIATED, WE MUST EVALUATE THE CLAIM OF
THE BOARD TO POWER, UNDER SEC. 8(B)(3), TO DISTINGUISH AMONG VARIOUS
ECONOMIC PRESSURE TACTICS AND BRAND THE ONES AT BAR INCONSISTENT WITH
GOOD-FAITH COLLECTIVE BARGAINING.  WE CONCLUDE ITS CLAIM IS WITHOUT
FOUNDATION.  (FN19) 

(A)  THE BOARD CONTENDS THAT THE DISTINCTION BETWEEN A TOTAL STRIKE
AND THE CONDUCT AT BAR IS THAT A TOTAL STRIKE IS A CONCERTED ACTIVITY
PROTECTED AGAINST EMPLOYER INTERFERENCE BY SECS. 7 (FN20) AND 8(A)(1)
(FN21) OF THE ACT, WHILE THE ACTIVITY AT BAR IS NOT A PROTECTED
CONCERTED ACTIVITY.  WE MAY AGREE ARGUENDO WITH THE BOARD (FN22) THAT
THIS COURT'S DECISION IN THE BRIGGS-STRATTON CASE, AUTOMOBILE WORKERS
V. WISCONSIN BOARD, 336 U.S. 245, ESTABLISHES THAT THE EMPLOYEE CONDUCT
HERE WAS NOT A PROTECTED CONCERTED ACTIVITY.  (FN23)  ON THIS
ASSUMPTION THE EMPLOYER COULD HAVE DISCHARGED OR TAKEN OTHER
APPROPRIATE DISCIPLINARY ACTION AGAINST THE EMPLOYEES PARTICIPATING IN
THESE "SLOW-DOWN," "SIT-IN," AND ARGUABLY UNPROTECTED DISLOYAL
TACTICS.  SEE LABOR BOARD V. FANSTEEL METALLURGICAL CORP., 306 U.S.
240; LABOR BOARD V. ELECTRICAL WORKERS, 346 U.S. 464.  BUT SURELY THAT
UNION ACTIVITY IS NOT PROTECTED AGAINST DISCIPLINARY ACTION DOES NOT
MEAN THAT IT CONSTITUTES A REFUSAL TO BARGAIN IN GOOD FAITH.  THE
REASON WHY THE ORDINARY ECONOMIC STRIKE IS NOT EVIDENCE OF A FAILURE TO
BARGAIN IN GOOD FAITH IS NOT THAT IT CONSTITUTES A PROTECTED ACTIVITY
BUT THAT, AS WE HAVE DEVELOPED, THERE IS SIMPLY NO INCONSISTENCY
BETWEEN THE APPLICATION OF ECONOMIC PRESSURE AND GOOD-FAITH COLLECTIVE
BARGAINING.  THE BOARD SUGGESTS THAT SINCE (ON THE ASSUMPTION WE MAKE)
THE UNION MEMBERS' ACTIVITIES HERE WERE UNPROTECTED, AND THEY COULD
HAVE BEEN DISCHARGED, THE ACTIVITIES SHOULD ALSO BE DEEMED UNFAIR LABOR
PRACTICES, SINCE THUS THE REMEDY OF A CEASE-AND-DESIST ORDER, MILDER
THAN MASS DISCHARGES OF PERSONNEL AND LESS DISRUPTIVE OF COMMERCE,
WOULD BE AVAILABLE.  THE ARGUMENT IS NOT PERSUASIVE.  THERE IS LITTLE
LOGIC IN ASSUMING THAT BECAUSE CONGRESS WAS WILLING TO ALLOW EMPLOYERS
TO USE SELF-HELP AGAINST UNION TACTICS, IF THEY WERE WILLING TO FACE
THE ECONOMIC CONSEQUENCES OF ITS USE, IT ALSO IMPLIEDLY DECLARED THESE
TACTICS UNLAWFUL AS A MATTER OF FEDERAL LAW.  OUR PROBLEM REMAINS THAT
OF CONSTRUING SEC. 8(B)(3)'S TERMS, AND WE DO NOT SEE HOW THE
AVAILABILITY OF SELF-HELP TO THE EMPLOYER HAS ANYTHING TO DO WITH THE
MATTER. 

(B)  THE BOARD CONTENDS THAT BECAUSE AN ORTHODOX "TOTAL" STRIKE IS
"TRADITIONAL" ITS USE MUST BE TAKEN AS BEING CONSISTENT WITH SEC.
8(B)(3); BUT SINCE THE TACTICS HERE ARE NOT "TRADITIONAL" OR "NORMAL,"
THEY NEED NOT BE SO VIEWED.  (FN24)  FURTHER, THE BOARD CITES WHAT IT
CONCEIVES TO BE THE PUBLIC'S MORAL CONDEMNATION OF THE SORT OF EMPLOYEE
TACTICS INVOLVED HERE.  BUT AGAIN WE CANNOT SEE HOW THESE DISTINCTIONS
CAN BE MADE UNDER A STATUTE WHICH SIMPLY ENJOINS A DUTY TO BARGAIN IN
GOOD FAITH.  AGAIN, THESE ARE RELEVANT ARGUMENTS WHEN THE QUESTION IS
THE SCOPE OF THE CONCERTED ACTIVITIES GIVEN AFFIRMATIVE PROTECTION BY
THE ACT.  BUT AS WE HAVE DEVELOPED, THE USE OF ECONOMIC PRESSURE BY THE
PARTIES TO A LABOR DISPUTE IS NOT A GRUDGING EXCEPTION TO SOME POLICY
OF COMPLETELY ACADEMIC DISCUSSION ENJOINED BY THE ACT; IT IS PART AND
PARCEL OF THE PROCESS OF COLLECTIVE BARGAINING.  ON THIS BASIS, WE FAIL
TO SEE THE RELEVANCE OF WHETHER THE PRACTICE IN QUESTION IS TIME
HONORED OR WHETHER ITS EXERCISE IS GENERALLY SUPPORTED BY PUBLIC
OPINION.  IT MAY BE THAT THE TACTICS USED HERE DESERVE CONDEMNATION,
BUT THIS WOULD NOT JUSTIFY ATTEMPTING TO POUR THAT CONDEMNATION INTO A
VESSEL NOT DESIGNED TO HOLD IT.  (FN25)  THE SAME MAY BE SAID FOR THE
BOARD'S CONTENTION THAT THESE ACTIVITIES, AS OPPOSED TO A "NORMAL"
STRIKE, ARE INCONSISTENT WITH SEC. 8(B)(3) BECAUSE THEY OFFER MAXIMUM
PRESSURE ON THE EMPLOYER AT MINIMUM ECONOMIC COST TO THE UNION.  ONE
MAY DOUBT WHETHER THIS WAS SO HERE, (FN26) BUT THE MATTER DOES NOT TURN
ON THAT.  SURELY IT CANNOT BE SAID THAT THE ONLY ECONOMIC WEAPONS
CONSISTENT WITH GOOD-FAITH BARGAINING ARE THOSE WHICH MINIMIZE THE
PRESSURE ON THE OTHER PARTY OR MAXIMIZE THE DISADVANTAGE TO THE PARTY
USING THEM.  THE CATALOG OF UNION AND EMPLOYER (FN27) WEAPONS THAT
MIGHT THUS FALL UNDER BAN WOULD BE MOST EXTENSIVE.   (FN28) 

FIFTH.  THESE DISTINCTIONS ESSAYED BY THE BOARD HERE, AND THE LACK OF
RELATIONSHIP TO THE STATUTORY STANDARD INHERENT IN THEM, CONFIRM US IN
OUR CONCLUSION THAT THE JUDGMENT OF THE COURT OF APPEALS, SETTING ASIDE
THE ORDER OF THE BOARD, MUST BE AFFIRMED.  FOR THEY MAKE CLEAR TO US
THAT WHEN THE BOARD MOVES IN THIS AREA, WITH ONLY SEC. 8(B)(3) FOR
SUPPORT, IT IS FUNCTIONING AS AN ARBITER OF THE SORT OF ECONOMIC
WEAPONS THE PARTIES CAN USE IN SEEKING TO GAIN ACCEPTANCE OF THEIR
BARGAINING DEMANDS.  IT HAS SOUGHT TO INTRODUCE SOME STANDARD OF
PROPERLY "BALANCED" (FN29) BARGAINING POWER, OR SOME NEW DISTINCTION OF
JUSTIFIABLE AND UNJUSTIFIABLE, PROPER AND "ABUSIVE" (FN30) ECONOMIC
WEAPONS INTO THE COLLECTIVE BARGAINING DUTY IMPOSED BY THE ACT.  THE
BOARD'S ASSERTION OF POWER UNDER SEC. 8(B)(3) ALLOWS IT TO SIT IN
JUDGMENT UPON EVERY ECONOMIC WEAPON THE PARTIES TO A LABOR CONTRACT
NEGOTIATION EMPLOY, JUDGING IT ON THE VERY GENERAL STANDARD OF THAT
PRESSURE.  WE HAVE EXPRESSED OUR BELIEF THAT THIS AMOUNTS TO THE
BOARD'S ENTRANCE INTO THE SUBSTANTIVE ASPECTS OF THE BARGAINING PROCESS
TO AN EXTENT CONGRESS HAS NOT COUNTENANCED.    IT IS ONE THING TO SAY
THAT THE BOARD HAS BEEN AFFORDED FLEXIBILITY TO DETERMINE, FOR EXAMPLE,
WHETHER AN EMPLOYER'S DISCIPLINARY ACTION TAKEN AGAINST SPECIFIC
WORKERS IS PERMISSIBLE OR NOT, OR WHETHER A PARTY'S CONDUCT AT THE
BARGAINING TABLE EVIDENCES A REAL DESIRE TO COME INTO AGREEMENT.  THE
STATUTE IN SUCH AREAS CLEARLY POSES THE PROBLEM TO THE BOARD FOR ITS
SOLUTION.  CF. LABOR BOARD V. TRUCK DRIVERS UNION, 353 U.S. 87.  AND
SPECIFICALLY WE DO NOT MEAN TO QUESTION IN ANY WAY THE BOARD'S POWERS
TO DETERMINE THE LATTER QUESTION, DRAWING INFERENCES FROM THE CONDUCT
OF THE PARTIES AS A WHOLE.  IT IS QUITE ANOTHER MATTER, HOWEVER, TO SAY
THAT THE BOARD HAS BEEN AFFORDED FLEXIBILITY IN PICKING AND CHOOSING
WHICH ECONOMIC DEVICES OF LABOR AND MANAGEMENT SHALL BE BRANDED AS
UNLAWFUL.  CONGRESS HAS BEEN RATHER SPECIFIC WHEN IT HAS COME TO OUTLAW
PARTICULAR ECONOMIC WEAPONS ON THE PART OF UNIONS.  SEE SEC. 8(B)(4) OF
THE NATIONAL LABOR RELATIONS ACT, AS ADDED BY THE TAFT-HARTLEY ACT, 61
STAT. 141, AND AS SUPPLEMENTED BY THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959, 73 STAT. 542; (29 U.S.C.  SEC. 158(B)(4)); SEC.
8(B)(7), AS ADDED BY THE LATTER ACT, 73 STAT. 544.  BUT THE ACTIVITIES
HERE INVOLVED HAVE NEVER BEEN SPECIFICALLY OUTLAWED BY CONGRESS. 
(FN31) TO BE SURE, THE EXPRESS PROHIBITIONS OF THE ACT ARE NOT
EXCLUSIVE - IF THERE WERE ANY QUESTIONS OF A STRATAGEM OR DEVICE TO
EVADE THE POLICIES OF THE ACT, THE BOARD HARDLY WOULD BE POWERLESS. 
PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194.  BUT IT IS CLEAR
TO US THAT THE BOARD NEEDS A MORE SPECIFIC CHARTER THAN SEC. 8(B)(3)
BEFORE IT CAN ADD TO THE ACT'S PROHIBITIONS HERE. 

WE RECOGNIZE WITHOUT HESITATION THE PRIMARY FUNCTION AND
RESPONSIBILITY OF THE BOARD TO RESOLVE THE CONFLICTING INTERESTS THAT
CONGRESS HAS RECOGNIZED IN ITS LABOR LEGISLATION.  CLEARLY, WHERE THE
"ULTIMATE PROBLEM IS THE BALANCING OF THE CONFLICTING LEGITIMATE
INTERESTS" IT MUST BE REMEMBERED THAT "THE FUNCTION OF STRIKING THAT
BALANCE TO EFFECTUATE NATIONAL LABOR POLICY IS OFTEN A DIFFICULT AND
DELICATE RESPONSIBILITY, WHICH THE CONGRESS COMMITTED PRIMARILY TO THE
NATIONAL LABOR RELATIONS BOARD, SUBJECT TO LIMITED JUDICIAL REVIEW." 
LABOR BOARD V. TRUCK DRIVERS UNION, SUPRA, AT 96.  CERTAINLY A "STATUTE
EXPRESSIVE OF SUCH LARGE PUBLIC POLICY AS THAT ON WHICH THE NATIONAL
LABOR RELATIONS BOARD IS BASED MUST BE BROADLY PHRASED AND NECESSARILY
CARRIES WITH IT THE TASK OF ADMINISTRATIVE APPLICATION."  PHELPS DODGE
CORP. V. LABOR BOARD, SUPRA, AT 194.  BUT RECOGNITION OF THE
APPROPRIATE SPHERE OF THE ADMINISTRATIVE POWER HERE OBVIOUSLY CANNOT
EXCLUDE ALL JUDICIAL REVIEW OF THE BOARD'S ACTIONS.  ON THE FACTS OF
THIS CASE WE NEED NOT ATTEMPT A DETAILED DELINEATION OF THE RESPECTIVE
FUNCTIONS OF COURT AND AGENCY IN THIS AREA.  WE THINK THE BOARD'S
RESOLUTION OF THE ISSUES HERE AMOUNTED NOT TO A RESOLUTION OF INTERESTS
WHICH THE ACT HAD LEFT TO IT FOR CASE-BY-CASE ADJUDICATION, BUT TO A
MOVEMENT INTO A NEW AREA OF REGULATION WHICH CONGRESS HAD NOT COMMITTED
TO IT.  WHERE CONGRESS HAS IN THE STATUTE GIVEN THE BOARD A QUESTION TO
ANSWER, THE COURTS WILL GIVE RESPECT TO THAT ANSWER; BUT THEY MUST BE
SURE THE QUESTION HAS BEEN ASKED.  WE SEE NO INDICATION HERE THAT
CONGRESS HAS PUT IT TO THE BOARD TO DEFINE THROUGH ITS PROCESSES WHAT
ECONOMIC SANCTIONS MIGHT BE PERMITTED NEGOTIATING PARTIES IN AN "IDEAL"
OR "BALANCED" STATE OF COLLECTIVE BARGAINING. 

IT IS SUGGESTED HERE THAT THE TIME HAS COME FOR A REEVALUATION OF THE
BASIC CONTENT OF COLLECTIVE BARGAINING AS CONTEMPLATED BY THE FEDERAL
LEGISLATION.  BUT THAT IS FOR CONGRESS.  CONGRESS HAS DEMONSTRATED ITS
CAPACITY TO ADJUST THE NATION'S LABOR LEGISLATION TO WHAT, IN ITS
LEGISLATIVE JUDGMENT, CONSTITUTES THE STATUTORY PATTERN APPROPRIATE TO
THE DEVELOPING STATE OF LABOR RELATIONS IN THE COUNTRY.  MAJOR
REVISIONS OF THE BASIC STATUTE WERE ENACTED IN 1947 AND 1959.  TO BE
SURE, THEN, CONGRESS MIGHT BE OF OPINION THAT GREATER STRESS SHOULD BE
PUT ON THE ROLE OF "PURE" NEGOTIATION IN SETTLING LABOR DISPUTES, TO
THE EXTENT OF ELIMINATING MORE AND MORE ECONOMIC WEAPONS FROM THE
PARTIES' GRASP, AND PERHAPS IT MIGHT START WITH THE ONES INVOLVED HERE;
OR IN CONSIDERATION OF THE ALTERNATIVES, IT MIGHT SHRINK FROM SUCH AN
UNDERTAKING.  BUT CONGRESS' POLICY HAS NOT YET MOVED TO THIS POINT, AND
WITH ONLY SEC. 8(B)(3) TO LEAN ON, WE DO NOT SEE HOW THE BOARD CAN DO
SO ON ITS OWN.  (FN32)  AFFIRMED. 

FN1  AS ADDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947 (THE TAFT
HARTLEY ACT), 61 STAT. 141, 29 U.S.C. SEC. 158(B)(3). 

FN2  A STENOGRAPHIC RECORD OF THE DISCUSSIONS AT THE BARGAINING TABLE
WAS KEPT, AND THE TRANSCRIPTION OF IT FILLS 72 VOLUMES. 

FN3  THE HEARINGS ON THE UNFAIR LABOR PRACTICE CHARGE WERE RECESSED
IN JULY TO ALLOW THE PARTIES TO CONCENTRATE ON THE EFFORT TO NEGOTIATE
THE SETTLEMENT WHICH WAS ARRIVED AT IN THE NEW CONTRACT OF JULY 17,
1956. 

FN4  EXAMINING THE MATTER DE NOVO WITHOUT THE PERSONAL PRODUCTS
DECISION OF THE BOARD AS PRECEDENT, THE EXAMINER CALLED REPEATEDLY UPON
THE BOARD'S GENERAL COUNSEL FOR SOME EVIDENCE OF FAILURE TO BARGAIN IN
GOOD FAITH, BESIDES THE HARASSING TACTICS THEMSELVES.  WHEN SUCH
EVIDENCE WAS NOT FORTHCOMING, HE COMMENTED, "IT MAY WELL BE THAT THE
BOARD WILL BE ABLE TO 'OBJECTIVELY EVALUATE' THE 'IMPACT' OF ACTIVITIES
UPON 'COLLECTIVE-BARGAINING NEGOTIATIONS' FROM THE MERE 'NATURE OF THE
ACTIVITIES,' BUT THE TRIAL EXAMINER IS RELUCTANT EVEN TO ATTEMPT THIS
FEAT OF MENTAL POLE VAULTING WITH ONLY PRESUMTION AS A POLE."  119
N.L.R.B., AT 781-782. 

FN5  THE BOARD OBSERVED THAT THE UNION'S CONTINUED PARTICIPATION IN
NEGOTIATIONS AND DESIRE TO REACH AN AGREEMENT ONLY INDICATED THAT IT
"WAS PREPARED TO GO THROUGH THE MOTIONS OF BARGAINING WHILE RELYING
UPON A CAMPAIGN OF HARASSING TACTICS TO DISRUPT THE COMPANY'S BUSINESS
TO ACHIEVE ACCEPTANCE OF ITS CONTRACTUAL DEMANDS."  119 N.L.R.B., AT
771.  THE ONLY APPARENT BASIS FOR THE CONCLUSION THAT THE UNION WAS
ONLY GOING THROUGH THE "MOTIONS" OF BARGAINING IS THE BOARD'S OWN
POSTULATE THAT THE TACTICS IN QUESTION WERE INCONSISTENT WITH THE
STATUTORILY REQUIRED NORM OF COLLECTIVE BARGAINING, AND THE BOARD'S
OPINION, AND ITS CONTEXT, REVEAL THAT THIS WAS ALL THAT IT MEANT.  THIS
PER SE RULE AMOUNTED TO THE "POLE VAULTING" THAT THE EXAMINER SAID HE
WAS "RELUCTANT EVEN TO ATTEMPT."  SEE NOTE 4, SUPRA. 

FN6  WE WILL ASSUME WITHOUT DECIDING THAT THE ACTIVITIES IN QUESTION
HERE WERE NOT "PROTECTED" UNDER SEC. 7 OF THE ACT.  SEE P. 492 AND NOTE
22, INFRA. 

FN7  SEE HEARINGS BEFORE THE SENATE COMMITTEE ON EDUCATION AND LABOR
ON S. 1958, 74TH CONG., 1ST SESS., P. 43:  "THEREFORE, WHILE THE BILL
DOES NOT STATE SPECIFICALLY THE DUTY OF AN EMPLOYER TO RECOGNIZE AND
BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF HIS EMPLOYEES, BECAUSE
OF THE DIFFICULTY OF SETTING FORTH THIS MATTER PRECISELY IN STATUTORY
LANGUAGE, SUCH A DUTY IS CLEARLY IMPLICIT IN THE BILL." 

FN8  49 STAT. 453.  THE CORRESPONDING PROVISION IN THE CURRENT FORM
OF THE ACT IS SEC. 8(A)(5), 61 STAT. 141, 29 U.S.C. SEC. 158(A)(5). 

FN9  SENATOR WALSH, AT 79 CONG. REC. 7660. 

FN10  1 N.L.R.B. ANN. REP., PP. 85-86. 

FN11  THIS COURT RELATED THE HISTORY IN LABOR BOARD V. AMERICAN
NATIONAL INS. CO., 343 U.S. 395, 404. 

FN12  61 STAT. 142, 29 U.S.C. SEC. 158(D). 

FN13  SENATOR ELLENDER WAS MOST EXPLICIT ON THE MATTER AT 93 CONG.
REC. 4135. 

THE LEGISLATIVE HISTORY SEEMS ALSO TO HAVE CONTEMPLATED THAT THE
PROVISION WOULD BE APPLICABLE TO A UNION WHICH DECLINED TO IDENTIFY ITS
BARGAINING DEMANDS WHILE ATTEMPTING FINANCIALLY TO EXHAUST THE
EMPLOYER.  SEE THE REMARK BY SENATOR HATCH AT 93 CONG. REC. 5005.  CF.
NOTE 15, INFRA.  A CLOSELY RELATED APPLICATION IS DEVELOPED IN AMERICAN
NEWSPAPER PUBLISHERS ASSN. V. LABOR BOARD, 193 F.2D 782, 804-805,
AFFIRMED AS TO OTHER ISSUES ON LIMITED GRANT OF CERTIORARI, 345 U.S.
100. 

FN14  G.W. TAYLOR, GOVERNMENT REGULATION OF INDUSTRIAL RELATIONS, P.
18. 

FN15  THE FACTS IN PERSONAL PRODUCTS DID, IN THE BOARD'S VIEW,
PRESENT THE CASE OF A UNION WHICH WAS USING ECONOMIC PRESSURE AGAINST
AN EMPLOYER IN A BARGAINING SITUATION WITHOUT IDENTIFYING WHAT ITS
BARGAINING DEMANDS WERE - A MATTER WHICH CAN BE VIEWED QUITE
DIFFERENTLY IN TERMS OF A SEC. 8(B)(3) VIOLATION FROM THE PRESENT
CASE.  SEE NOTE 13, SUPRA.  THE BOARD'S DECISION IN PERSONAL PRODUCTS
MAY HAVE TURNED ON THIS TO SOME EXTENT, SEE 108 N.L.R.B., AT 746; BUT
ITS DECISION IN THE INSTANT CASE SEEMS TO VIEW PERSONAL PRODUCTS AS
TURNING ON THE SAME POINT AS DOES THE PRESENT CASE. 

FN16  THIS COURT GRANTED CERTIORARI, 350 U.S. 1004, ON THE BOARD'S
PETITION, TO REVIEW THAT JUDGMENT; BUT IN THE LIGHT OF INTERVENING
CIRCUMSTANCES WHICH AT LEAST INDICATED THAT THE LITIGATION HAD BECOME
LESS MEANINGFUL TO THE PARTIES, CF. THE MONROSA V. CARBON BLACK EXPORT,
INC., 359 U.S. 180, THE ORDER GRANTING CERTIORARI WAS VACATED AND
CERTIORARI WAS DENIED.  352 U.S. 864. 

FN17  THE COURT THERE DISPLAYED A WANT OF SYMPATHY TO THE BOARD'S
THEORY THAT A STRIKE IN BREACH OF CONTRACT VIOLATED SEC. 8(B)(3), SEE
103 U.S. APP. D.C., AT 210-211, 257 F.2D, AT 214-215.  CF. FEINSINGER,
THE NATIONAL LABOR RELATIONS ACT AND COLLECTIVE BARGAINING, 57 MICH. L.
REV. 806-807.  HOWEVER, THE COURT TURNED ITS DECISION ON ITS RULING,
CONTRA THE BOARD, THAT THERE WAS NO BREACH OF THE CONTRACT INVOLVED. 
ON THIS POINT, CONTRA IS UNITED MINE WORKERS V. BENEDICT COAL CORP.,
259 F.2D 346, 351, AFFIRMED THIS DAY BY AN EQUALLY DIVIDED COURT, ANTE,
P. 459. 

FN18  SAID THE BOARD:  "CONSEQUENTLY, WHETHER OR NOT AN INFERENCE OF
BAD FAITH IS PERMISSIBLE WHERE A UNION ENGAGES IN A PROTECTED STRIKE TO
ENFORCE ITS DEMANDS, THERE IS NOTHING UNREASONABLE IN DRAWING SUCH AN
INFERENCE WHERE, AS HERE, THE UNION'S CONDUCT IS NOT SANCTIONED BY THE
ACT."  119 N.L.R.B., AT 771-772. 

FN19  OUR HOLDING ON THIS GROUND MAKES IT UNNECESSARY FOR US TO PASS
ON THE OTHER GROUNDS FOR AFFIRMANCE OF THE COURT OF APPEALS' JUDGMENT
URGED BY RESPONDENT.  THESE WE TAKE TO INCLUDE THE ARGUMENT THAT THE
BOARD'S ORDER VIOLATED THE STANDARDS OF SEC.  8(C) OF THE ACT, 61 STAT.
142, 29 U.S.C. SEC. 158(C), AND THE POINTS TOUCHED UPON IN NOTES 22 AND
23, INFRA. 

FN20  "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  ...  ."  49 STAT. 452, AS AMENDED, 61 STAT. 140, 29
U.S.C. SEC. 157. 

FN21  "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 7  ...  ."  49 STAT. 452, AS AMENDED, 61
STAT. 140, 29 U.S.C. SEC. 158(A)(1). 

FN22  RESPONDENT CITES A NUMBER OF SPECIFIC CIRCUMSTANCES IN THE
ACTIVITIES HERE THAT MIGHT DISTINGUISH THEM FROM THE BRIGGS-STRATTON
CASE AS TO PROTECTION UNDER SEC. 7.  WE DO NOT PASS ON THE MATTER. 

FN23  BRIGGS-STRATTON HELD, AMONG OTHER THINGS, THAT EMPLOYEE CONDUCT
QUITE SIMILAR TO THE CONDUCT AT BAR WAS NEITHER PROTECTED BY SEC. 7 OF
THE ACT NOR PROHIBITED (MADE AN UNFAIR LABOR PRACTICE) BY SEC. 8.  THE
RESPONDENT URGES THAT THE HOLDING THERE THAT THE CONDUCT WAS NOT
PROHIBITED BY SEC. 8 IN AND OF ITSELF REQUIRES AN AFFIRMANCE OF THE
JUDGMENT HERE, SINCE IN THIS CASE THE BOARD'S ORDER FOUND A VIOLATION
OF SEC. 8.  IN FACT THE BOARD'S GENERAL COUNSEL ON ORAL ARGUMENT MADE
THE CONCESSION THAT BRIGGS-STRATTON WOULD HAVE TO BE OVERRULED FOR THE
BOARD TO PREVAIL HERE. 

BUT REGARDLESS OF THE STATUS TODAY OF THE OTHER SUBSTANTIVE RULINGS
IN THE BRIGGS-STRATTON CASE, WE CANNOT SAY THAT THE CASE'S HOLDING AS
TO SEC. 8 REQUIRES A JUDGMENT FOR THE RESPONDENT HERE.  BRIGGS-STRATTON
WAS A DIRECT REVIEW ON CERTIORARI HERE OF A STATE BOARD ORDER, AS
MODIFIED AND AFFIRMED IN THE STATE SUPREME COURT, AGAINST THE UNION
CONDUCT IN QUESTION.  THE ORDER WAS ASSAILED BY THE UNION HERE
PRIMARILY AS BEING BEYOND THE COMPETENCE OF THE STATE TO MAKE, BY
REASON OF THE FEDERAL LABOR RELATIONS STATUTES.  THIS COURT HELD THAT
THE ACTIVITIES IN QUESTION WERE NEITHER PROTECTED BY SEC. 7 NOR
PROHIBITED BY SEC. 8, AND ALLOWED THE STATE ORDER TO STAND.  THE
PRIMARY FOCUS OF ATTENTION WAS WHETHER THE ACTIVITIES WERE PROTECTED BY
SEC. 7; THERE SEEMS TO HAVE BEEN NO SERIOUS CONTENTION MADE THAT THEY
WERE PROHIBITED BY SEC. 8.  THE CASE AROSE LONG BEFORE THE LINE OF
CASES BEGINNING WITH PERSONAL PRODUCTS IN WHICH THE BOARD BEGAN TO
RELATE SUCH ACTIVITIES TO SEC. 8(B)(3).  BUT OF SPECIAL SIGNIFICANCE IS
THE FACT THAT THE APPROACH TO PRE-EMPTION TAKEN IN BRIGGS-STRATTON WAS
THAT THE STATE COURTS AND THIS COURT ON REVIEW WERE REQUIRED TO DECIDE
WHETHER THE ACTIVITIES WERE EITHER PROTECTED BY SEC. 7 OR PROHIBITED BY
SEC. 8.  THIS APPROACH IS "NO LONGER OF GENERAL APPLICATION," SAN DIEGO
BUILDING TRADES COUNCIL V. GARMON, 359 U.S. 236, 245, N. 4, AS THIS
COURT HAS SINCE DEVELOPED THE DOCTRINE IN PRE-EMPTION CASES THAT
QUESTIONS OF INTERPRETATION OF THE NATIONAL LABOR RELATIONS ACT ARE
GENERALLY COMMITTED IN THE FIRST INSTANCE TO THE BOARD'S ADMINISTRATIVE
PROCESSES, SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, SUPRA, EXCEPT
IN THE ATYPICAL SITUATION WHERE THOSE PROCESSES ARE NOT RELEVANT TO AN
ANSWER TO THE QUESTION.  SEE TEAMSTERS UNION V. OLIVER, SUPRA.
THEREFORE TO VIEW BRIGGS-STRATTON AS CONTROLLING ON THE SEC. 8 ISSUE
HERE WOULD BE TO COMPOUND THE DEFECTS OF A NOW DISCARDED APPROACH TO
PRE-EMPTION; IT WOULD AMOUNT TO SAYING THAT THE BOARD WOULD BE
FORECLOSED IN ITS ADJUDICATIVE DEVELOPMENT OF INTERPRETATION OF THE ACT
BY A DECISION RENDERED LONG AGO, NOT ARISING IN REVIEW OF ONE OF ITS
OWN ORDERS, AT A TIME WHEN ITS OWN VIEWS HAD NOT COME TO WHAT THEY NOW
ARE, AND IN WHICH THE PRECISE ISSUE (AS TO SEC. 8(B)(3)) WAS NOT
LITIGATED AT ALL, AND THE GENERAL SEC. 8 ISSUE NOT LITIGATED
SERIOUSLY.  HENCE WE CONSTRUE SEC. 8 HERE UNINFLUENCED BY WHAT WAS SAID
IN BRIGGS-STRATTON.    HOWEVER, WE WILL NOT HERE RE-EXAMINE WHAT WAS
SAID IN BRIGGS-STRATTON AS TO SECS. 13 AND 501.  THE UNION HERE
CONTENDS THAT THE DEFINITION OF "STRIKE" IN SEC. 501(2) OF THE TAFT
HARTLEY ACT, 61 STAT. 161, 29 U.S.C. SEC. 142(2), WHICH IS BROAD ENOUGH
TO INCLUDE THE ACTIVITIES HERE IN QUESTION, MUST BE APPLIED HERE UNDER
SEC. 13 OF THE NLRA, WHICH PROVIDES THAT "NOTHING IN THIS ACT, EXCEPT
AS SPECIFICALLY PROVIDED FOR HEREIN, SHALL BE CONSTRUED SO AS EITHER TO
INTERFERE WITH OR IMPEDE OR DIMINISH IN ANY WAY THE RIGHT TO STRIKE, OR
TO AFFECT THE LIMITATIONS OR QUALIFICATIONS ON THAT RIGHT."  49 STAT.
457, AS AMENDED, 61 STAT. 151, 29 U.S.C. SEC. 163.  AND IF IT IS SO
APPLIED, THE UNION ARGUES THAT SEC. 13 WOULD PREVENT THE BOARD FROM
CONSIDERING THE CONDUCT IN QUESTION AS AN UNFAIR LABOR PRACTICE.  THE
ISSUE WAS TENDERED IN MUCH THE SAME LIGHT IN BRIGGS-STRATTON, AND THE
COURT QUITE PLAINLY INDICATED THAT THE DEFINITION IN SEC. 501(2) WAS
ONLY TO BE CONSIDERED IN CONNECTION WITH SEC. 8(B)(4) AND NOT WITH SEC.
13, SEE 336 U.S., AT 258-263, ESPECIALLY THE LAST PAGE; AT THE VERY
LEAST THIS WAS A HOLDING ALTERNATIVE TO A HOLDING, 336 U.S., AT 263
264, THAT, HOWEVER DEFINED, SEC. 13, UNLIKE SEC. 7, WAS NOT AN
INHIBITION ON STATE POWER.  PERHAPS THIS ELEMENT OF THE BRIGGS-STRATTON
DECISION HAS BECOME OPEN ALSO, BUT CERTAINLY THIS IS NOT SO CLEAR AS IS
THE FACT THAT THE SEC. 8 POINT IS OPEN.  IN ANY EVENT, WE SHALL NOT
CONSIDER THE MATTER FURTHER SINCE OUR AFFIRMANCE OF THE COURT OF
APPEALS' REVERSAL OF THE BOARD'S ORDER IS, WE BELIEVE, MORE PROPERLY
BOTTOMED ON A CONSTRUCTION OF SEC. 8(B)(3). 

FN24  THE BOARD QUOTES, IN SUPPORT OF THIS, GENERAL LANGUAGE FROM A
DECISION OF THIS COURT, ORDER OF RAILROAD TELEGRAPHERS V. RAILWAY
EXPRESS AGENCY, INC., 321 U.S. 342, 346, DEALING WITH A WHOLLY
DIFFERENT MATTER - THE SCOPE OF SUBJECTS APPROPRIATE FOR COLLECTIVE
BARGAINING. 

FN25  "TO SAY 'THERE OUGHT TO BE A LAW AGAINST IT' DOES NOT
DEMONSTRATE THE PROPRIETY OF THE NLRB'S IMPOSING THE PROHIBITION." 
COX, THE DUTY TO BARGAIN IN GOOD FAITH, 71 HARV.  L. REV. 1401, 1437. 

FN26  THOUGH IT IS MUCH URGED IN THE BOARD'S BRIEF HERE AS A GENERAL
PROPOSITION, THE BOARD'S OPINION (FOLLOWING ITS PER SE APPROACH)
CONTAINS NO DISCUSSION OF THIS POINT AT ALL INSOFAR AS THE FACTS OF THE
CASE WERE CONCERNED; IT DID NOT DISCUSS THE ECONOMIC EFFECT OF THE
ACTIVITIES ON THE AGENTS THEMSELVES AND EXPRESSLY DECLINED TO PASS ON
THEIR EFFECT ON THE EMPLOYER.  119 N.L.R.B., AT 771.  RESPONDENT HERE
URGES THAT THE EVIDENCE ESTABLISHES QUITE THE OPPOSITE CONCLUSION. 

FN27  "IF RELATIVE POWER BE THE PROPER TEST, SURELY ONE WHO BELIEVED
THE UNIONS TO BE WEAK WOULD COME TO THE OPPOSITE CONCLUSION.  IS IT AN
ABUSE OF 'BARGAINING POWERS' TO THREATEN A STRIKE AT A DEPARTMENT STORE
TWO WEEKS BEFORE EASTER INSTEAD OF ENGAGING IN FURTHER DISCUSSION,
POSTPONING THE STRIKE UNTIL AFTER EASTER WHEN THE EMPLOYER WILL FEEL IT
LESS SEVERELY?  IT IS UNFAIR FOR AN EMPLOYER TO STALL NEGOTIATIONS
THROUGH A BUSY SEASON OR WHILE HE IS BUILDING UP INVENTORY SO THAT HE
CAN STAND A STRIKE BETTER THAN THE WORKERS?"  COX, THE DUTY TO BARGAIN
IN GOOD FAITH, 71 HARV. L. REV. 1401, 1440-1441. 

FN28  THERE IS A SUGGESTION IN THE BOARD'S OPINION THAT IT REGARDED
THE UNION TACTICS AS A UNILATERAL SETTING OF THE TERMS AND CONDITIONS
OF EMPLOYMENT AND HENCE ALSO ON THIS BASIS VIOLATIVE OF SEC. 8(B)(3),
JUST AS AN EMPLOYER'S UNILATERAL SETTING OF EMPLOYMENT TERMS DURING
COLLECTIVE BARGAINING MAY AMOUNT TO A BREACH OF ITS DUTY TO BARGAIN
COLLECTIVELY.  LABOR BOARD V. CROMPTON-HIGHLAND MILLS, INC., 337 U.S.
217.  SEE 119 N.L.R.B., AT 772.  PRUDENTIAL, AS AMICUS CURIAE HERE,
RENEWS THIS POINT THOUGH THE BOARD DOES NOT MAKE IT HERE.  IT SEEMS
BASELESS TO US. THERE WAS NO INDICATION THAT THE PRACTICES THAT THE
UNION WAS ENGAGING IN WERE DESIGNED TO BE PERMANENT CONDITIONS OF
WORK.  THEY WERE RATHER MEANS TO ANOTHER END.  THE QUESTION WHETHER
UNION CONDUCT COULD BE TREATED, ANALOGOUSLY TO EMPLOYER CONDUCT, AS
UNILATERALLY ESTABLISHING WORKING CONDITIONS, IN A MANNER VIOLATIVE OF
THE DUTY TO BARGAIN COLLECTIVELY, MIGHT BE RAISED FOR EXAMPLE BY THE
CASE OF A UNION, ANXIOUS TO SECURE A REDUCTION OF THE WORKING DAY FROM
EIGHT TO SEVEN HOURS, WHICH INSTRUCTED ITS MEMBERS, DURING THE
NEGOTIATION PROCESS, TO QUIT WORK AN HOUR EARLY DAILY.  CF. NOTE, 71
HARV. L. REV. 502, 509.  BUT THIS SITUATION IS NOT PRESENTED HERE, AND
WE LEAVE THE QUESTION OPEN. 

FN29  THE BOARD'S OPINION INTERPRETS THE NATIONAL LABOR RELATIONS ACT
TO REQUIRE, IN THIS PARTICULAR, "A BACKGROUND OF BALANCED BARGAINING
RELATIONS."  119 N.L.R.B., AT 772. 

FN30  THE BOARD IN PERSONAL PRODUCTS CONDEMNED THE UNION'S TACTICS AS
AN "ABUSE OF THE UNION'S BARGAINING POWERS."  108 N.L.R.B., AT 746. 

FN31 IT MIGHT BE NOTED THAT THE HOUSE BILL, WHEN THE TAFT-HARTLEY ACT
WAS IN THE LEGISLATIVE PROCESS, CONTAINED A LIST OF "UNLAWFUL CONCERTED
ACTIVITIES" ONE OF WHICH WOULD QUITE LIKELY HAVE REACHED SOME OF THE
UNION CONDUCT HERE, BUT THE PROVISION NEVER BECAME LAW.  H.R. 3020,
80TH CONG., 1ST SESS., SEC. 12. 

FN32  AFTER WE GRANTED CERTIORARI, WE POSTPONED TO THE CONSIDERATION
OF THE CASE ON THE MERITS A MOTION BY THE BOARD TO JOIN AS A PARTY HERE
INSURANCE WORKERS INTERNATIONAL UNION, AFL-CIO, THE STYLE OF A NEW
UNION FORMED BY MERGER OF RESPONDENT AND ANOTHER UNION AFTER THE
DECISION OF THIS CASE IN THE COURT OF APPEALS, AND A CONTINGENT MOTION
BY RESPONDENT THAT IT BE DELETED AS A PARTY.  361 U.S. 872.  IN THE
LIGHT OF OUR RULING ON THE MERITS, THERE IS LITTLE POINT IN DETERMINING
HERE AND NOW WHAT THE LEGAL STATUS OF THE PREDECESSOR AND SUCCESSOR
UNION IS, AND IF THE ISSUE EVER BECOMES IMPORTANT, WE THINK THAT THE
MATTER IS BEST DECIDED THEN.  FOR WHAT IT IS WORTH, WE SHALL TREAT BOTH
AS PARTIES BEFORE US IN THIS PROCEEDING.  THE BOARD'S MOTION IS GRANTED
AND RESPONDENT'S IS DENIED.  SEE LABOR BOARD V. LION OIL CO., 352 U.S.
282. 

SEPARATE OPINION OF MR. JUSTICE FRANKFURTER, WHICH MR. JUSTICE HARLAN
AND MR. JUSTICE WHITTAKER JOIN. 

THE SWEEP OF THE COURT'S OPINION, WITH ITS FAR-REACHING IMPLICATIONS
IN A DOMAIN OF LAWMAKING OF SUCH NATION-WIDE IMPORTANCE AS THAT OF
LEGAL CONTROL OF COLLECTIVE BARGAINING, COMPELS A SEPARATE STATEMENT OF
MY VIEWS. 

THE CONDUCT WHICH UNDERLIES THIS ACTION WAS THE RESPONDENT UNION'S
"WORK WITHOUT A CONTRACT" PROGRAM WHICH IT ADMITTEDLY INITIATED AFTER
THE EXPIRATION OF ITS CONTRACT WITH THE PRUDENTIAL INSURANCE COMPANY ON
MARCH 19, 1956.  IN BRIEF, THE UNION DIRECTED ITS MEMBERS AT VARIOUS
TIMES TO ARRIVE LATE TO WORK; TO DECLINE, BY "SITTING-IN" THE COMPANY
OFFICES, TO WORK ACCORDING TO THEIR REGULAR SCHEDULE; TO REFUSE TO
WRITE NEW BUSINESS OR, WHEN WRITING IT, NOT TO REPORT IT IN THE
ORDINARY FASHION; TO DECLINE TO ATTEND SPECIAL BUSINESS MEETINGS; TO
DEMONSTRATE BEFORE COMPANY OFFICES; AND TO SOLICIT PETITIONS IN THE
UNION'S BEHALF FROM POLICYHOLDERS WITH WHOM THEY DEALT.  PRUDENTIAL WAS
GIVEN NOTICE IN ADVANCE OF THE DETAILS OF THIS PROGRAM AND OF THE
DEMANDS WHICH THE UNION SOUGHT TO ACHIEVE BY CARRYING IT OUT. 

THIS ACTION WAS COMMENCED BY A COMPLAINT ISSUED ON JUNE 5, 1956,
ALLEGING RESPONDENT'S FAILURE TO BARGAIN IN GOOD FAITH.  AFTER A
HEARING, THE TRIAL EXAMINER RECOMMENDED THAT THE COMPLAINT BE
DISMISSED, FINDING THAT "FROM THE 'CIRCUMSTANTIAL EVIDENCE' (OF THE
UNION'S STATE OF MIND) OF THE BARGAINING ITSELF  ...  BUT ONE INFERENCE
IS POSSIBLE  ...  THE UNION'S MOTIVE WAS ONE OF GOOD FAITH  ...  "; AND
THAT "WHATEVER INFERENCE MAY BE AS REASONABLY DRAWN FROM THE UNION'S
CONCURRENT 'UNPROTECTED' ACTIVITIES" IS NOT SUFFICIENT TO OUTWEIGH THIS
EVIDENCE OF GOOD FAITH. 

THE BOARD SUSTAINED EXCEPTIONS TO THE TRIAL EXAMINER'S REPORT,
CONCLUDING THAT RESPONDENT FAILED TO BARGAIN IN GOOD FAITH.  THE ONLY
FACTS RELIED ON BY THE BOARD WERE BASED ON THE "WORK WITHOUT A
CONTRACT" PROGRAM.  THE BOARD FOUND THAT SUCH TACTICS ON RESPONDENT'S
PART "CLEARLY REVEALED AN UNWILLINGNESS TO SUBMIT ITS DEMANDS TO THE
CONSIDERATION OF THE BARGAINING TABLE" AND THAT RESPONDENT THEREFORE
FAILED TO BARGAIN IN GOOD FAITH.  IN SUPPORT OF ITS CONCLUSION OF WANT
OF BARGAINING IN GOOD FAITH, THE BOARD STATED THAT "HARASSING
ACTIVITIES ARE PLAINLY 'IRRECONCILABLE WITH THE ACT'S REQUIREMENT OF
REASONED DISCUSSION IN A BACKGROUND OF BALANCED BARGAINING RELATIONS
UPON WHICH GOOD-FAITH BARGAINING MUST REST'  ...  ."  THE BOARD MADE NO
FINDING THAT THE OUTWARD COURSE OF THE NEGOTIATIONS GAVE RISE TO AN
INFERENCE THAT RESPONDENT'S STATE OF MIND WAS ONE OF UNWILLINGNESS TO
REACH AGREEMENT.  IT FOUND FROM THE CHARACTER OF RESPONDENT'S
ACTIVITIES IN CARRYING OUT THE "WORK WITHOUT A CONTRACT" PROGRAM THAT
WHAT APPEARED TO BE GOOD FAITH BARGAINING AT THE BARGAINING TABLE WAS
IN FACT A SHAM: 

"THE FACT THAT THE RESPONDENT CONTINUED TO CONFER WITH THE COMPANY
AND WAS DESIROUS OF CONCLUDING AN AGREEMENT DOES NOT ALONE ESTABLISH
THAT IT FULFILLED ITS OBLIGATION TO BARGAIN IN GOOD FAITH, AS THE
RESPONDENT ARGUES AND THE TRIAL EXAMINER BELIEVES.  AT MOST, IT
DEMONSTRATES THAT THE RESPONDENT WAS PREPARED TO GO THROUGH THE MOTIONS
OF BARGAINING WHILE RELYING UPON A CAMPAIGN OF HARASSING TACTICS TO
DISRUPT THE COMPANY'S BUSINESS TO ACHIEVE ACCEPTANCE OF ITS CONTRACTUAL
DEMANDS." 

THE BOARD ISSUED A CEASE-AND-DESIST ORDER (FN1) AND SOUGHT ITS
ENFORCEMENT IN THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 
RESPONDENT CROSS-PETITIONED TO SET IT ASIDE.  THE COURT OF APPEALS,
RELYING EXCLUSIVELY ON ITS PRIOR DECISION IN TEXTILE WORKERS UNION V.
LABOR BOARD, 97 U.S. APP. D.C. 35, 227 F.2D 409 (1955), DENIED
ENFORCEMENT AND SET ASIDE THE ORDER.  IN THE TEXTILE WORKERS CASE THE
COURT HAD HELD (ONE JUDGE DISSENTING) THAT THE BOARD COULD NOT CONSIDER
THE "HARASSING ACTIVITIES OF THE UNION THERE INVOLVED AS EVIDENCE OF
LACK OF GOOD FAITH DURING THE NEGOTIATIONS.  "THERE IS NOT THE
SLIGHTEST INCONSISTENCY BETWEEN GENUINE DESIRE TO COME TO AN AGREEMENT
AND USE OF ECONOMIC PRESSURE TO GET THE KIND OF AGREEMENT ONE WANTS." 
97 U.S. APP. D.C. 35, 36, 227 F.2D 409, 410. 

THE RECORD PRESENTS TWO DIFFERENT GROUNDS FOR THE BOARD'S ACTION IN
THIS CASE.  THE BOARD'S OWN OPINION PROCEEDS IN TERMS OF AN EXAMINATION
OF RESPONDENT'S CONDUCT AS IT BEARS UPON THE GENUINENESS OF ITS
BARGAINING IN THE NEGOTIATION PROCEEDINGS.  FROM THE RESPONDENT'S
CONDUCT THE BOARD DREW THE INFERENCE THAT RESPONDENT'S STATE OF MIND
WAS INIMICAL TO REACHING AN AGREEMENT, AND THAT INFERENCE ALONE
SUPPORTED ITS CONCLUSION OF A REFUSAL TO BARGAIN.  THE BOARD'S POSITION
IN THIS COURT PROCEEDED IN TERMS OF THE RELATION OF CONDUCT SUCH AS
RESPONDENT'S TO THE KIND OF BARGAINING REQUIRED BY THE STATUTE, WITHOUT
REGARD TO THE BEARING OF SUCH CONDUCT ON THE PROOF OF GOOD FAITH
REVEALED BY THE ACTUAL BARGAINING.  THE BOARD MAINTAINED THAT IT: 

"COULD APPROPRIATELY DETERMINE THAT THE BASIC STATUTORY PURPOSE OF
PROMOTING INDUSTRIAL PEACE THROUGH THE COLLECTIVE BARGAINING PROCESS
WOULD BE DEFEATED BY SANCTIONING RESORT TO THIS FORM OF INDUSTRIAL
WARFARE AS A COLLECTIVE BARGAINING TECHNIQUE." 

THE OPINION OF THIS COURT, LIKE THAT OF THE COURT OF APPEALS,
DISPOSES OF BOTH QUESTIONS BY A SINGLE BROAD STROKE.  IT CONCLUDES THAT
CONDUCT DESIGNED TO EXERT PRESSURE ON THE BARGAINING SITUATION WITH THE
AIM OF ACHIEVING FAVORABLE RESULTS IS TO BE DEEMED ENTIRELY CONSISTENT
WITH THE DUTY TO BARGAIN IN GOOD FAITH.  NO EVIDENTIARY SIGNIFICANCE,
NOT EVEN AN INFERENCE OF A LACK OF GOOD FAITH, IS ALLOWED TO BE DRAWN
FROM THE CONDUCT IN QUESTION AS PART OF A TOTAL CONTEXT. 

I AGREE THAT THE POSITION TAKEN BY THE BOARD HERE IS NOT TENABLE.  IN
ENFORCING THE DUTY TO BARGAIN THE BOARD MUST FIND THE ULTIMATE FACT
WHETHER, IN THE CASE BEFORE IT AND IN THE CONTEXT OF ALL ITS
CIRCUMSTANCES, THE RESPONDENT HAS ENGAGED IN BARGAINING WITHOUT THE
SINCERE DESIRE TO REACH AGREEMENT WHICH THE ACT COMMANDS.  I FURTHER
AGREE THAT THE BOARD'S ACTION IN THIS CASE IS NOT SUSTAINABLE AS
RESTING UPON A DETERMINATION THAT RESPONDENT'S APPARENT BARGAINING WAS
IN FACT A SHAM, BECAUSE THE EVIDENCE IS INSUFFICIENT TO JUSTIFY THAT
CONCLUSION EVEN GIVING THE BOARD, AS WE MUST, EVERY BENEFIT OF ITS
RIGHT TO DRAW ON ITS EXPERIENCE IN INTERPRETING THE INDUSTRIAL
SIGNIFICANCE OF THE FACTS OF A RECORD.  SEE UNIVERSAL CAMERA CORP. V.
LABOR BOARD, 340 U.S. 474.  WHAT THE BOARD HAS IN FACT DONE IS LAY DOWN
A RULE OF LAW THAT SUCH CONDUCT AS WAS INVOLVED IN CARRYING OUT THE
"WORK WITHOUT A CONTRACT" PROGRAM NECESSARILY BETOKENS BAD FAITH IN THE
NEGOTIATIONS. 

THE COURT'S OPINION RESTS ITS CONCLUSION ON THE GENERALIZATION THAT
"THE ORDINARY ECONOMIC STRIKE IS NOT EVIDENCE OF A FAILURE TO BARGAIN
IN GOOD FAITH  ...  BECAUSE  ...  THERE IS SIMPLY NO INCONSISTENCY
BETWEEN THE APPLICATION OF ECONOMIC PRESSURE AND GOOD-FAITH COLLECTIVE
BARGAINING."  THIS LARGE STATEMENT IS JUSTIFIED SOLELY BY REFERENCE TO
SEC. 8(B)(3) AND TO THE PROPOSITION THAT INHERENT IN BARGAINING IS ROOM
FOR THE PLAY OF FORCES WHICH REVEAL THE STRENGTH OF ONE PARTY, OR THE
WEAKNESS OF THE OTHER, IN THE ECONOMIC CONTEXT IN WHICH THEY SEEK
AGREEMENT.  BUT IN DETERMINING THE STATE OF MIND OF A PARTY TO
COLLECTIVE BARGAINING NEGOTIATIONS THE BOARD DOES NOT DEAL IN TERMS OF
ABSTRACT "ECONOMIC PRESSURE."  IT MUST PROCEED IN TERMS OF SPECIFIC
CONDUCT WHICH IT WEIGHS AS A MORE OR LESS RELIABLE MANIFESTATION OF THE
STATE OF MIND WITH WHICH BARGAINING IS CONDUCTED.  NO CONDUCT IN THE
COMPLEX CONTEXT OF BARGAINING FOR A LABOR AGREEMENT CAN PROFITABLY BE
REDUCED TO SUCH AN ABSTRACTION AS "ECONOMIC PRESSURE."  AN EXERTION OF
"ECONOMIC PRESSURE" MAY AT THE SAME TIME BE PART OF A CONCERTED EFFORT
TO EVADE OR DISRUPT A NORMAL COURSE OF NEGOTIATIONS.  VITAL DIFFERENCES
IN CONDUCT, VARYING IN CHARACTER AND EFFECT FROM MILD PERSUASION TO
DESTRUCTIVE, ALBEIT "ECONOMIC," VIOLENCE (FN2) ARE OBSCURED UNDER COVER
OF A SINGLE ABSTRACT PHRASE.    WHILE SEC. 8(B)(3) OF COURSE
CONTEMPLATES SOME PLAY OF "ECONOMIC PRESSURE," IT DOES NOT FOLLOW THAT
THE PURPOSE IN ENGAGING IN TACTICS DESIGNED TO EXERT IT IS TO REACH
AGREEMENT THROUGH THE BARGAINING PROCESS IN THE MANNER WHICH THE
STATUTE COMMANDS, SO THAT THE BOARD IS PRECLUDED FROM CONSIDERING SUCH
CONDUCT, IN THE TOTALITY OF CIRCUMSTANCES, AS EVIDENCE OF THE ACTUAL
STATE OF MIND OF THE ACTOR.  SURELY TO DENY THIS SCOPE FOR ALLOWABLE
JUDGMENT TO THE BOARD IS TO DENY IT THE SPECIAL FUNCTION WITH WHICH IT
HAS BEEN ENTRUSTED.  SEE UNIVERSAL CAMERA CORP. V. LABOR BOARD, SUPRA.
THIS COURT HAS IN THE PAST DECLINED TO PRE-EMPT BY BROAD PROSCRIPTIONS
THE BOARD'S COMPETENCE IN THE FIRST INSTANCE TO WEIGH THE SIGNIFICANCE
OF THE RAW FACTS OF CONDUCT AND TO DRAW FROM THEM AN INFORMED JUDGMENT
AS TO THE ULTIMATE FACT.  IT HAS RECOGNIZED THAT THE SIGNIFICANCE OF
CONDUCT, ITSELF APPARENTLY INNOCENT AND EVIDENTLY INSUFFICIENT TO
SUSTAIN A FINDING OF AN UNFAIR LABOR PRACTICE, "MAY BE ALTERED BY
IMPONDERABLE SUBTLETIES AT WORK, WHICH IT IS NOT OUR FUNCTION TO
APPRAISE" BUT WHICH ARE, FIRST, FOR THE BOARD'S CONSIDERATION UPON ALL
THE EVIDENCE.  LABOR BOARD V. VIRGINIA POWER CO., 314 U.S. 469, 479. 
ACTIVITIES IN ISOLATION MAY BE WHOLLY INNOCENT, LAWFUL AND "PROTECTED"
BY THE ACT, BUT THAT OUGHT NOT TO BAR THE BOARD FROM FINDING, IF THE
RECORD JUSTIFIES IT, THAT THE ISOLATED PARTS "ARE BOUND TOGETHER AS THE
PARTS OF A SINGLE PLAN TO FRUSTRATE AGREEMENT.  THE PLAN MAY MAKE THE
PARTS UNLAWFUL."  SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 396. 
SEE ALSO AIKENS V. WISCONSIN, 195 U.S. 194, 206. 

MOREOVER, CONDUCT DESIGNED TO EXERT AND EXERTING "ECONOMIC PRESSURE"
MAY NOT HAVE THE SHELTER OF SEC. 8(B)(3) EVEN IN ISOLATION.  UNLAWFUL
VIOLENCE, WHETHER TO PERSON OR LIVELIHOOD, TO SECURE ACCEPTANCE OF AN
OFFER, IS AS MUCH A WITHDRAWAL OF INCLUDED STATUTORY SUBJECTS FROM
BARGAINING AS THE "TAKE IT OR LEAVE IT" ATTITUDE WHICH THE STATUTE
CLEARLY CONDEMNS.  (FN3)  ONE NEED NOT ROMANTICIZE THE COMMUNITY OF
INTEREST BETWEEN EMPLOYERS AND EMPLOYEES, OR BE UNMINDFUL OF THE
CONFLICT BETWEEN THEM, TO RECOGNIZE THAT UTILIZATION OF WHAT IN ONE SET
OF CIRCUMSTANCES MAY ONLY SIGNIFY RESORT TO THE TRADITIONAL WEAPONS OF
LABOR MAY IN ANOTHER AND RELEVANT CONTEXT OFFEND THE ATTITUDE TOWARD
BARGAINING COMMANDED BY THE STATUTE.  SECTION 8(B)(3) IS NOT A SPECIFIC
DIRECTION, BUT AN EXPRESSION OF A GOVERNING VIEWPOINT OR POLICY TO
WHICH, BY THE PROCESS OF SPECIFIC APPLICATION, THE BOARD AND THE COURTS
MUST GIVE CONCRETE, NOT DOCTRINAIRE CONTENT. 

THE MAIN PURPOSE OF THE WAGNER ACT WAS TO PUT THE FORCE OF LAW BEHIND
THE PROMOTION OF UNIONISM AS THE LEGITIMATE AND NECESSARY INSTRUMENT
"TO GIVE LABORERS OPPORTUNITY TO DEAL ON EQUALITY WITH THEIR
EMPLOYER."  MR. CHIEF JUSTICE TAFT FOR THE COURT, IN AMERICAN STEEL
FOUNDRIES V. TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S. 184, 209. 
EQUALITY OF BARGAINING POWER BETWEEN CAPITAL AND LABOR, TO USE THE
CONVENTIONAL TERMINOLOGY OF OUR PREDOMINANT ECONOMIC SYSTEM, WAS THE
AIM OF THIS LEGISLATION.  THE PRESUPPOSITION OF COLLECTIVE BARGAINING
WAS THE PROGRESSIVE ENLARGEMENT OF THE AREA OF REASON IN THE PROCESS OF
BARGAINING THROUGH THE GIVE-AND-TAKE OF DISCUSSION AND ENFORCING
MACHINERY WITHIN INDUSTRY, IN ORDER TO SUBSTITUTE, IN THE LANGUAGE OF
MR. JUSTICE BRANDEIS, "PROCESSES OF JUSTICE FOR THE MORE PRIMITIVE
METHOD OF TRIAL BY COMBAT."  DUPLEX PRINTING PRESS CO. V. DEERING, 254
U.S. 443, 448 (DISSENTING).  PROMOTION OF UNIONISM BY THE WAGNER ACT,
WITH THE RESULTING PROGRESS OF RATIONAL COLLECTIVE BARGAINING, HAS BEEN
GATHERING MOMENTUM FOR A QUARTER OF A CENTURY.  IN VIEW OF THE ECONOMIC
AND POLITICAL STRENGTH WHICH HAS THEREBY COME TO UNIONS,
INTERPRETATIONS OF THE ACT OUGHT NOT TO PROCEED ON THE ASSUMPTION THAT
IT ACTIVELY THROWS ITS WEIGHT ON THE SIDE OF UNIONISM IN ORDER TO
REDRESS AN ASSUMED INEQUALITY OF BARGAINING POWER.  FOR THE COURT TO
FASHION THE RULES GOVERNING COLLECTIVE BARGAINING ON THE ASSUMPTION
THAT THE POWER AND POSITION OF LABOR UNIONS AND THEIR SOLIDARITY ARE
WHAT THEY WERE TWENTY-FIVE YEARS AGO, IS TO FASHION LAW ON THE BASIS OF
UNREALITY.  ACCRETION OF POWER MAY CARRY WITH IT INCREASING
RESPONSIBILITY FOR THE MANNER OF ITS EXERCISE. 

THEREFORE, IN THE UNFOLDING OF LAW IN THIS FIELD IT SHOULD NOT BE THE
INEXORABLE PREMISE THAT THE PROCESS OF COLLECTIVE BARGAINING IS BY ITS
NATURE A BELLICOSE PROCESS.  THE BROADLY PHRASED TERMS OF THE TAFT
HARTLEY ACT SHOULD BE APPLIED TO CARRY OUT THE BROADLY CONCEIVED
POLICIES OF THE ACT.  AT THE CORE OF THE PROMOTION OF COLLECTIVE
BARGAINING, WHICH WAS THE CHIEF MEANS BY WHICH THE GREAT SOCIAL
PURPOSES OF THE NATIONAL LABOR RELATIONS ACT WERE SOUGHT TO BE
FURTHERED, IS A PURPOSE TO DISCOURAGE, MORE AND MORE, INDUSTRIAL
COMBATANTS FROM PRESSING THEIR DEMANDS BY ALL AVAILABLE MEANS TO THE
LIMITS OF THE JUSTIFICATION OF SELF-INTEREST.  THIS CALLS FOR
APPROPRIATE JUDICIAL CONSTRUCTION OF EXISTING LEGISLATION.  THE STATUTE
LAYS ITS EMPHASIS UPON REASON AND A WILLINGNESS TO EMPLOY IT AS THE
DOMINANT FORCE IN BARGAINING.  THAT EMPHASIS IS RESPECTED BY DECLINING
TO TAKE AS A POSTULATE OF THE DUTY TO BARGAIN THAT THE LEGALLY
IMPERMISSIBLE EXERTIONS OF SO-CALLED ECONOMIC PRESSURE MUST BE
RESTRICTED TO THE CRUDITIES OF BRUTE FORCE.  CF. LABOR BOARD V.
FANSTEEL METALLURGICAL CORP., 306 U.S. 240. 

HOWEVER, IT OF COURSE DOES NOT FOLLOW BECAUSE THE BOARD MAY FIND IN
TACTICS SHORT OF VIOLENCE EVIDENCE THAT A PARTY MEANS NOT TO BARGAIN IN
GOOD FAITH THAT EVERY SUCH FINDING MUST BE SUSTAINED.  SECTION 8(B)(3)
ITSELF, AS PREVIOUSLY CONSTRUED BY THE BOARD AND THIS COURT AND AS
AMPLIFIED BY SEC. 8(D), PROVIDES A SUBSTANTIAL LIMITATION ON THE
BOARD'S BECOMING, AS THE COURT FEARS, MERELY "AN ARBITER OF THE SORT OF
ECONOMIC WEAPONS THE PARTIES CAN USE IN SEEKING TO GAIN ACCEPTANCE OF
THEIR BARGAINING DEMANDS."  THE BOARD'S FUNCTION IN THE ENFORCEMENT OF
THE DUTY TO BARGAIN DOES NOT END WHEN IT HAS PROPERLY DRAWN AN
INFERENCE UNFAVORABLE TO THE RESPONDENT FROM PARTICULAR CONDUCT.  IT
MUST WEIGH THAT INFERENCE AS PART OF THE TOTALITY OF INFERENCES WHICH
MAY APPROPRIATELY BE DRAWN FROM THE ENTIRE CONDUCT OF THE RESPONDENT,
PARTICULARLY ITS CONDUCT AT THE BARGAINING TABLE.  THE STATE OF MIND
WITH WHICH THE PARTY CHARGED WITH A REFUSAL TO BARGAIN ENTERED INTO AND
PARTICIPATED IN THE BARGAINING PROCESS IS THE ULTIMATE ISSUE UPON WHICH
ALONE THE BOARD MUST ACT IN EACH CASE, AND ON THE SUFFICIENCY OF THE
WHOLE RECORD TO JUSTIFY ITS DECISION THE COURTS MUST PASS.  LABOR BOARD
V. AMERICAN NATIONAL INS. CO., 343 U.S. 395. 

THE BOARD URGES THAT THIS COURT HAS APPROVED ITS ENFORCEMENT OF SEC.
8(B)(3) BY THE OUTLAWRY OF CONDUCT PER SE, AND WITHOUT REGARD TO
ASCERTAINMENT OF A STATE OF MIND.  IT RELIES UPON FOUR CASES: H.J.
HEINZ CO. V. LABOR BOARD, 311 U.S. 514; LABOR BOARD V. CROMPTON
HIGHLAND MILLS, 337 U.S. 217; LABOR BOARD V. F.W. WOOLWORTH CO., 352
U.S. 938; AND LABOR BOARD V. BORG-WARNER CORP., 356 U.S. 342.  THESE
CASES DO NOT SUSTAIN ITS POSITION.  WHILE IT IS PLAIN THAT THE PER SE
PROSCRIPTION OF AN EMPLOYER'S REFUSAL TO REDUCE A COLLECTIVE AGREEMENT
TO WRITING WAS APPROVED IN THE HEINZ CASE, IT IS EQUALLY PLAIN FROM ITS
OPINION IN THAT CASE AS WELL AS ITS ARGUMENT BEFORE THIS COURT THAT THE
BOARD ITSELF REGARDED THE ACT OF REFUSAL TO AGREE TO THE INTEGRATION OF
THE AGREEMENT IN A WRITING AS A MANIFESTATION THAT THE EMPLOYER'S STATE
OF MIND WAS HOSTILE TO AGREEMENT WITH THE UNION.  THIS COURT SO
REGARDED THE EVIDENCE.  311 U.S., AT 525-526.  DECISION IN THE BORG
WARNER CASE PROCEEDED FROM A SIMILAR PREMISE.  BY FORCING A DEADLOCK
UPON A NON-STATUTORY SUBJECT OF BARGAINING THE EMPLOYER MANIFESTED HIS
INTENTION TO WITHDRAW THE STATUTORY SUBJECTS FROM BARGAINING.  THE
CROMPTON-HIGHLAND DECISION RESTED NOT ON APPROVAL OF A PER SE RULE THAT
UNILATERAL CHANGES OF THE CONDITIONS OF EMPLOYMENT BY AN EMPLOYER
DURING BARGAINING CONSTITUTE A REFUSAL TO BARGAIN, BUT UPON THE
INFERENCES OF A LACK OF GOOD FAITH WHICH AROSE FROM THE FACTS, AMONG
OTHERS, THAT THE EMPLOYER INSTITUTED A GREATER INCREASE THAN IT HAD
OFFERED THE UNION AND THAT IT DID SO WITHOUT CONSULTING THE UNION. 
FINALLY, NO SUCH CONCLUSION AS THE BOARD URGES CAN BE DRAWN FROM THE
SUMMARY DISPOSITION OF THE WOOLWORTH CASE HERE.  (FN4)  TO THE EXTENT
THAT IN ANY OF THESE CASES LANGUAGE REFERRED TO A PER SE PROSCRIPTION
OF CONDUCT IT WAS IN RELATION TO FACTS STRONGLY INDICATING A LACK OF A
SINCERE DESIRE TO REACH AGREEMENT. 

MOREOVER, IN UNDERTAKING TO FASHION THE LAW OF COLLECTIVE BARGAINING
IN THIS CASE IN ACCORDANCE WITH THE COMMAND OF SEC. 8(B)(3), THE BOARD
HAS CONSIDERED SEC. 8(B)(3) IN ISOLATION, AS IF IT WERE AN INDEPENDENT
PROVISION OF LAW, AND NOT A PART OF A RETICULATED LEGISLATIVE SCHEME
WITH INTERLACING PURPOSES.  IT IS THE PURPOSES TO BE DRAWN FROM THE
STATUTE IN ITS ENTIRETY, WITH DUE REGARD TO ALL ITS INTERRELATED
PROVISIONS, IN RELATION TO WHICH SEC. 8(B)(3) IS TO BE APPLIED.  CF.
TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448, 456.  A PERTINENT
RESTRAINT ON THE BOARD'S POWER TO CONSIDER AS INIMICAL TO FAIR
BARGAINING THE EXERCISE OF THE "ECONOMIC" WEAPONS OF LABOR IS EXPRESSED
IN THE ACT BY SEC. 13:  (FN5) 

"NOTHING IN THIS ACT, EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN,
SHALL BE CONSTRUED SO AS EITHER TO INTERFERE WITH OR IMPEDE OR DIMINISH
IN ANY WAY THE RIGHT TO STRIKE, OR TO AFFECT THE LIMITATIONS OR
QUALIFICATIONS ON THAT RIGHT." 

DEFINITION OF "STRIKE":  (FN6) 

"WHEN USED IN THIS ACT -  ...  (2) THE TERM "STRIKE" INCLUDES ANY
STRIKE OR OTHER CONCERTED STOPPAGE OF WORK BY EMPLOYEES (INCLUDING A
STOPPAGE BY REASON OF THE EXPIRATION OF A COLLECTIVE-BARGAINING
AGREEMENT) AND ANY CONCERTED SLOW-DOWN OR OTHER CONCERTED INTERRUPTION
OF OPERATIONS BY EMPLOYEES." 

AS THE LAST CLAUSE OF SEC. 13 MAKES PLAIN, THE SECTION DOES NOT
RECOGNIZE AN UNQUALIFIED RIGHT, FREE OF BOARD INTERFERENCE, TO ENGAGE
IN "STRIKES," AS RESPONDENT CONTENDS.  THE SENATE REPORT (FN7) DEALING
WITH THE ADDITION OF THE CLAUSE TO THE SECTION CONFIRMS THAT ITS
PURPOSE WAS TO APPROVE THE ELABORATION OF LIMITATIONS ON THE RIGHT TO
ENGAGE IN ACTIVITIES NOMINALLY WITHIN THE DEFINITION OF SEC. 501(2)
WHICH THIS COURT HAD HERETOFORE DEVELOPED IN SUCH CASES AS LABOR BOARD
V. FANSTEEL METALLURGICAL CORP., SUPRA; LABOR BOARD V. SANDS MFG. CO.,
306 U.S. 332; AND SOUTHERN S.S. CO. V. LABOR BOARD, 316 U.S. 31.  BUT
"LIMITATIONS AND QUALIFICATIONS" DO NOT EXTINGUISH THE RULE.  FOR THE
BOARD TO PROCEED, AS IT APPARENTLY CLAIMS POWER TO DO, AGAINST CONDUCT
WHICH, BUT FOR THE BARGAINING CONTEXT IN WHICH IT OCCURS, WOULD NOT BE
WITHIN THOSE LIMITATIONS, (FN8) IT MUST RELY UPON THE SPECIFIC GRANT OF
POWER TO ENFORCE THE DUTY TO BARGAIN WHICH IS CONTAINED IN SEC.
8(B)(3).  IN CONSTRUING THAT SECTION THE POLICY OF THE RULE OF
CONSTRUCTION SET FORTH BY SEC. 13, SEE AUTOMOBILE WORKERS V. WISCONSIN
BOARD, 336 U.S. 245, 259, MUST BE TAKEN INTO ACCOUNT.  IN THE LIGHT OF
THAT POLICY THERE IS NO JUSTIFICATION FOR DIVORCING FROM THE TOTAL
BARGAINING SITUATION PARTICULAR TACTICS WHICH THE BOARD FINDS
UNDESIRABLE, WITHOUT REGARD TO THE ACTUAL CONDUCT OF BARGAINING IN THE
CASE BEFORE IT. 

THE SCOPE OF THE PERMISSION EMBODIED IN SEC. 13 MUST BE CONSIDERED BY
THE BOARD IN DETERMINING, UNDER A PROPER RULE OF LAW, WHETHER THE
TOTALITY OF THE RESPONDENT'S CONDUCT JUSTIFIES THE CONCLUSION THAT IT
HAS VIOLATED THE "SPECIFIC" COMMAND OF SEC. 8(B)(3).  WHEN THE BOARD
EMPHASIZES TACTICS OUTSIDE THE NEGOTIATIONS THEMSELVES AS THE BASIS OF
THE CONCLUSION THAT THE COLOR OF ILLEGITIMACY IS IMPARTED TO OTHERWISE
APPARENTLY BONA FIDE NEGOTIATIONS, SEC. 13 BECOMES RELEVANT.  A TOTAL,
PEACEFUL STRIKE IN COMPLIANCE WITH THE REQUIREMENTS OF SEC. 8(D) WOULD
PLAINLY NOT SUFFICE TO SUSTAIN THE CONCLUSION; PROLONGED UNION
SPONSORED VIOLENCE DIRECTED AT THE COMPANY TO SECURE COMPLIANCE AS
PLAINLY WOULD.  HERE, AS IN SO MANY LEGAL SITUATIONS OF DIFFERENT
GRADATIONS, DRAWING THE LINE BETWEEN THEM IS NOT AN ABSTRACT,
SPECULATIVE ENTERPRISE.  WHERE THE LINE OUGHT TO BE DRAWN SHOULD AWAIT
THE DECISION OF PARTICULAR CASES BY THE BOARD.  IT INVOLVES EXPERIENCED
JUDGMENT REGARDING THE JUSTIFICATION OF THE MEANS AND THE SEVERITY OF
THE EFFECT OF PARTICULAR CONDUCT IN THE SPECIALIZED CONTEXT OF
BARGAINING. 

INCONSISTENT WITH THE BOARD'S CLAIM OF POWER TO PROSCRIBE CONDUCT
WITHOUT REGARD TO THE STATE OF MIND WITH WHICH THE ACTOR PARTICIPATED
IN NEGOTIATIONS.  THE 1935 ACT DID NOT DEFINE THE "PRACTICE AND
PROCEDURE OF COLLECTIVE BARGAINING" WHICH IT PURPOSED TO "ENCOURAGE." 
ACT OF JULY 5, 1935, SEC. 1, 49 STAT. 449.  THAT DEFINITION, UNTIL
1947, WAS EVOLVED BY THE BOARD AND THE COURTS IN THE LIGHT OF
EXPERIENCE IN THE ADMINISTRATION OF THE ACT.  SEE, E.G., H.J. HEINZ CO.
V. LABOR BOARD, SUPRA.  IN 1947, AFTER CONSIDERABLE CONTROVERSY OVER
THE NEED TO OBJECTIFY THE ELEMENTS OF THE DUTY TO BARGAIN, SEC. 8(D)
WAS ENACTED.  WE HAVE HELD THAT THE HISTORY OF THAT ENACTMENT
DEMONSTRATES AN INTENTION TO RESTRAIN THE BOARD'S POWER TO REGULATE,
WHETHER DIRECTLY OR INDIRECTLY, THE SUBSTANTIVE TERMS OF COLLECTIVE
AGREEMENTS.  LABOR BOARD V. AMERICAN NATIONAL INS. CO., SUPRA, AT 404. 
IN THE SAME CASE WE RECOGNIZED THAT IMPLICIT IN THAT PURPOSE IS A
RESTRAINT UPON THE BOARD'S PROCEEDING BY THE PROSCRIPTION OF CONDUCT
PER SE AND WITHOUT REGARD TO INFERENCES AS TO STATE OF MIND TO BE DRAWN
FROM THE TOTALITY OF THE CONDUCT IN EACH CASE.  ID., AT 409. 
FINALLY, IT IS NOT DISPUTED THAT THE DUTY TO BARGAIN IMPOSED ON UNIONS
IN 1947 WAS THE SAME AS THAT PREVIOUSLY IMPOSED ON EMPLOYERS, AND IT IS
THEREFORE NOT WITHOUT SIGNIFICANCE FOR ITS PRESENT ASSERTION OF POWER
THAT FOR 25 YEARS OF ADMINISTRATION OF THE EMPLOYER'S DUTY TO BARGAIN,
WHICH WAS IMPOSED BY THE ACT OF 1935 AND PRESERVED BY THE AMENDMENTS OF
1947, THE BOARD HAS NOT FOUND IT NECESSARY TO ASSERT THAT IT MAY
PROSCRIBE CONDUCT AS UNDESIRABLE IN BARGAINING WITHOUT REGARD TO THE
ACTUAL COURSE OF THE NEGOTIATIONS.  SEE FEDERAL TRADE COMM'N V. BUNTE
BROS., 312 U.S. 349, 351-352. 

THESE CONSIDERATIONS GOVERN THE DISPOSITION OF THE CASE BEFORE THE
COURT.  VIEWED AS A DETERMINATION UPON ALL THE EVIDENCE THAT THE
RESPONDENT BARGAINED WITHOUT THE SINCERE DESIRE TO COMPOSE DIFFERENCES
AND REACH AGREEMENT WHICH THE STATUTE COMMANDS, THE BOARD'S CONCLUSION
MUST FALL FOR WANT OF SUPPORT IN THE EVIDENCE AS A WHOLE.  SEE
UNIVERSAL CAMERA CORP. V. LABOR BOARD, SUPRA. APART FROM ANY RESTRAINT
UPON ITS CONCLUSION IMPOSED BY SEC. 13, A MATTER WHICH THE BOARD DID
NOT CONSIDER, NO REASON IS MANIFEST WHY THE RESPONDENT'S NUISANCE
TACTICS HERE SHOULD BE THOUGHT A SUFFICIENT BASIS FOR THE CONCLUSION
THAT ALL ITS BARGAINING WAS IN REALITY A SHAM.  ON THIS RECORD IT DOES
NOT APPEAR THAT RESPONDENT MERELY STALLED AT THE BARGAINING TABLE UNTIL
ITS CONDUCT OUTSIDE THE NEGOTIATIONS MIGHT FORCE PRUDENTIAL TO
CAPITULATE TO ITS DEMANDS, NOR DOES ANY OTHER EVIDENCE GIVE THE COLOR
OF PRETENCE TO ITS NEGOTIATING PROCEDURE.  FROM THE CONDUCT OF ITS
COUNSEL BEFORE THE TRIAL EXAMINER, AND FROM ITS OPINION, IT IS APPARENT
THAT THE BOARD PROCEEDED UPON THE BELIEF THAT RESPONDENT'S TACTICS
WERE, WITHOUT MORE, SUFFICIENT EVIDENCE OF A LACK OF A SINCERE DESIRE
TO REACH AGREEMENT TO MAKE OTHER CONSIDERATION OF ITS CONDUCT
UNNECESSARY.  FOR THAT REASON THE CASE SHOULD BE REMANDED TO THE BOARD
FOR FURTHER OPPORTUNITY TO INTRODUCE PERTINENT EVIDENCE, IF ANY THERE
BE, OF RESPONDENT'S LACK OF GOOD FAITH. 

VIEWED AS A DETERMINATION BY THE BOARD THAT IT COULD, QUITE APART
FROM RESPONDENT'S STATE OF MIND, PROSCRIBE ITS TACTICS BECAUSE THEY
WERE NOT "TRADITIONAL," OR WERE THOUGHT TO BE SUBJECT TO PUBLIC
DISAPPROVAL, OR BECAUSE EMPLOYEES WHO ENGAGED IN THEM MAY HAVE BEEN
SUBJECT TO DISCHARGE, THE BOARD'S CONCLUSION PROCEEDS FROM THE
APPLICATION OF AN ERRONEOUS RULE OF LAW. 

THE DECISION OF THE COURT OF APPEALS SHOULD BE VACATED, AND THE CASE
REMANDED TO THE BOARD FOR FURTHER PROCEEDINGS CONSISTENT WITH THESE
VIEWS. 

FN1  THE ORDER IN PART PROVIDED:  "THE RESPONDENT  ...  SHALL:  1. 
CEASE AND DESIST FROM REFUSING TO BARGAIN COLLECTIVELY IN GOOD FAITH
WITH THE PRUDENTIAL INSURANCE COMPANY OF AMERICA  ...  BY AUTHORIZING,
DIRECTING, SUPPORTING, INDUCING OR ENCOURAGING THE COMPANY'S EMPLOYEES
TO ENGAGE IN SLOWDOWNS, HARASSING ACTIVITIES OR OTHER UNPROTECTED
CONDUCT, IN THE COURSE OF THEIR EMPLOYMENT AND IN DISREGARD OF THEIR
DUTIES AND CUSTOMARY ROUTINES, FOR THE PURPOSE OF FORCING THE COMPANY
TO ACCEPT ITS BARGAINING DEMANDS, OR FROM ENGAGING IN ANY LIKE OR
RELATED CONDUCT IN DEROGATION OF ITS STATUTORY DUTY TO BARGAIN  ...
." 

FN2  "THERE ARE PLENTY OF METHODS OF COERCION SHORT OF ACTUAL
PHYSICAL VIOLENCE."  SENATOR TAFT, AT 93 CONG. REC. 4024. 

FN3  AS THE COURT STATES, THE PREVENTION OF UNION COMDUCT DESIGNED TO
ENFORCE SUCH AN ATTITUDE WAS A PRIMARY PURPOSE OF THE ENACTMENT OF SEC.
8(B)(3).  SEE, E.G., 93 CONG.  REC. 4135. 

FN4  THE COURT HELD THAT "THE BOARD ACTED WITHIN ITS ALLOWABLE
DISCRETION IN FINDING THAT UNDER THE CIRCUMSTANCES OF THIS CASE FAILURE
TO FURNISH THE WAGE INFORMATION CONSTITUTED AN UNFAIR LABOR PRACTICE." 
IT CITED LABOR BOARD V. TRUITT MFG. CO., 351 U.S. 149; AND IN TRUITT
THE ENTIRE COURT WAS IN AGREEMENT BOTH THAT THE WITHHOLDING OF WAGE
INFORMATION BY THE EMPLOYER WAS WEIGHTY EVIDENCE OF A LACK OF
WILLINGNESS TO BARGAIN SINCERELY, AND THAT THE JUDGMENT OF THE BOARD
HAD TO BE PREDICATED ON ALL THE FACTS PERTINENT TO STATE OF MIND.  351
U.S., AT 153, 155.  MOREOVER, THE LOWER COURT IN THE WOOLWORTH CASE
FOUND THAT THE BOARD HAD NOT PROCEEDED BY A PER SE DETERMINATION, 235
F.2D 319, 322 (C.A. 9TH CIR.), BUT THAT THERE WAS NO BASIS FOR ITS
CONCLUSION THAT THE INFORMATION REQUESTED WAS RELEVANT TO
ADMINISTRATION OF THE AGREEMENT. 

FN5  WHILE THE BOARD DOES CONSIDER THESE SECTIONS IN CONNECTION WITH
RESPONDENT'S ASSERTION THAT THEY AFFORD PROTECTION TO ITS CONDUCT FROM
BOARD REGULATION, SEE N. 8, INFRA, IT DOES NOT CONSIDER THEIR
APPLICATION AS A RULE OF CONSTRUCTION OF SEC. 8(B)(3). 

FN6  ALTHOUGH I AM IN SYMPATHY WITH THE COURT'S CONCLUSION THAT THE
CONSTRUCTION OF SEC. 8 IN THIS CASE IS TO BE UNINFLUENCED BY WHAT WAS
SAID IN AUTOMOBILE WORKERS V. WISCONSIN BOARD, 336 U.S. 245, I DO NOT
AGREE THAT THAT CASE HELD THAT THE DEFINITIONS OF SEC. 501(2) ARE
INAPPLICABLE TO SEC. 13.  THE QUESTION WHICH THE COURT THERE CONSIDERED
WAS WHETHER SEC.  13, AS DEFINED IN SEC. 501(2), INDEPENDENTLY RENDERED
ACTIVITIES WITHIN ITS TERMS IMMUNE FROM STATE REGULATION.  THE COURT'S
OBSERVATION THAT FOR SEC. 501(2) TO HAVE SO EXTENDED THE FORCE OF SEC.
13 WOULD HAVE BEEN INCONSISTENT WITH THE PURPOSE OF THE INCLUSION OF
THE DEFINITION, WHICH WAS TO EXTEND THE BOARD'S POWER WITH REFERENCE TO
THE UNFAIR LABOR PRACTICE DEFINED BY SEC. 7(B)(4), 336 U.S., AT 263,
WAS MADE IN LIGHT OF THE CONTENTION THAT SEC. 13 ITSELF HAD THE EFFECT
OF PRECLUDING THE STATES.  THE CRUX OF THE DECISION WITH REGARD TO SEC.
13 WAS THAT IT ANNOUNCED NO MORE THAN A RULE OF CONSTRUCTION OF THE
FEDERAL ACT.  IT WAS NEITHER ARGUED NOR DECIDED THAT SEC. 501(2) DOES
NOT APPLY TO SEC. 13.  THERE APPEARS TO BE NO SUPPORT FOR SUCH A
CONCLUSION EITHER IN THE TEXT OF THE ACT OR IN ITS LEGISLATIVE
HISTORY.  IT IS HARDLY CONCEIVABLE THAT SUCH A WORD AS "STRIKE" COULD
HAVE BEEN DEFINED IN THESE STATUTES WITHOUT CONGRESSIONAL REALIZATION
OF THE OBVIOUS SCOPE OF ITS APPLICATION. 

FN7  S. REP. NO. 105, 80TH CONG., 1ST SESS. (1947), AT P. 28.  THIS
PROVISION OF THE TAFT BILL WAS ADOPTED BY THE CONFERENCE.  H.R. CONF.
REP. NO. 510, 80TH CONG., 1ST SESS.  (1947), AT P. 59. 

FN8  THE BOARD URGES THAT RESPONDENT'S ACTIVITIES ARE NOT WITHIN THE
"DISPENSATION OR PROTECTION" OF SEC. 13, BECAUSE AUTOMOBILE WORKERS V.
WISCONSIN BOARD, 336 U.S. 245, HELD "SLOWDOWNS" TO BE "UNPROTECTED"
ACTIVITIES SUBJECT TO STATE REGULATION.  THE ARGUMENT MISREADS THE
SIGNIFICANCE OF THAT CASE AS REGARDS SEC. 13.  SEE N. 6, SUPRA.  NOR IS
IT VALID TO ASSUME THAT ALL CONDUCT LOOSELY DESCRIBED AS A "SLOWDOWN"
HAS THE SAME LEGAL SIGNIFICANCE, OR THAT UNION SPONSORSHIP OF SUCH
CONDUCT FALLS WITHIN THE "LIMITATIONS OR QUALIFICATIONS" ON THE RIGHT
TO STRIKE INCORPORATED IN SEC. 13 IN EVERY CASE IN WHICH EMPLOYEE
PARTICIPATION IN IT WOULD BE "UNPROTECTED" BY SEC. 7, AND THEREFORE
SUBJECT TO ECONOMIC RETALIATION BY THE EMPLOYER.  SEE THE PORTIONS OF
THE BOARD'S ORDER QUOTED IN N. 1, SUPRA.
..END :



BATES V. CITY OF LITTLE ROCK 361 U.S. 516 


NO. 41.  ARGUED NOVEMBER 18, 1959 - DECIDED FEBRUARY 23, 1960 - 229 ARK.
819, 319 S.W.2D 37, REVERSED. 


PETITIONERS, CUSTODIANS OF THE RECORDS OF LOCAL BRANCHES OF THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, WERE TRIED,
CONVICTED AND FINED FOR VIOLATING IDENTICAL OCCUPATIONAL LICENSE TAX
ORDINANCES OF TWO ARKANSAS CITIES BY REFUSING TO FURNISH THE CITY
OFFICIALS WITH LISTS OF THE NAMES OF THE MEMBERS OF THE LOCAL BRANCHES
OF THE ASSOCIATION.  HELD:  ON THE RECORD IN THIS CASE, COMPULSORY
DISCLOSURE OF THE MEMBERSHIP LISTS WOULD WORK UNJUSTIFIED INTERFERENCE
WITH THE MEMBERS' FREEDOM OF ASSOCIATION, WHICH IS PROTECTED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT FROM INVASION BY THE STATES;
AND THE CONVICTIONS ARE REVERSED.  PP. 517-527. 

(A)  IT IS NOW BEYOND DISPUTE THAT FREEDOM OF ASSOCIATION FOR THE
PURPOSE OF ADVANCING IDEAS AND AIRING GRIEVANCES IS PROTECTED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT FROM INVASION BY THE
STATES.  PP. 522-523. 

(B)  ON THE RECORD IN THIS CASE, IT SUFFICIENTLY APPEARS THAT
COMPULSORY DISCLOSURE OF THE MEMBERSHIP LISTS OF THE LOCAL BRANCHES OF
THE ASSOCIATION WOULD WORK A SIGNIFICANT INTERFERENCE WITH THE FREEDOM
OF ASSOCIATION OF THEIR MEMBERS.  PP. 523-524. 

(C)  THE CITIES HERE, AS INSTRUMENTALITIES OF THE STATE, HAVE NOT
DEMONSTRATED SO COGENT AN INTEREST IN OBTAINING AND MAKING PUBLIC THE
MEMBERSHIP LISTS OF THESE ORGANIZATIONS AS TO JUSTIFY THE SUBSTANTIAL
ABRIDGMENT OF ASSOCIATIONAL FREEDOM WHICH SUCH DISCLOSURES WOULD
EFFECT, SINCE THE RECORD DISCLOSES NO RELEVANT CORRELATION BETWEEN THE
POWER OF THE MUNICIPALITIES TO IMPOSE OCCUPATIONAL LICENSE TAXES AND
THE COMPULSORY DISCLOSURE AND PUBLICATION OF THESE MEMBERSHIP LISTS. 
PP. 524-527. 

BATES ET AL. V. CITY OF LITTLE ROCK ET AL. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

EACH OF THE PETITIONERS HAS BEEN CONVICTED OF VIOLATING AN IDENTICAL
ORDINANCE OF AN ARKANSAS MUNICIPALITY BY REFUSING A DEMAND TO FURNISH
CITY OFFICIALS WITH A LIST OF THE NAMES OF THE MEMBERS OF A LOCAL
BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE.  THE QUESTION FOR DECISION IS WHETHER THESE CONVICTIONS CAN
STAND UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION. 

MUNICIPALITIES IN ARKANSAS ARE AUTHORIZED BY THE STATE TO LEVY A
LICENSE TAX ON ANY PERSON, FIRM, INDIVIDUAL, OR CORPORATION ENGAGING IN
ANY "TRADE, BUSINESS, PROFESSION, VOCATION OR CALLING" WITHIN THEIR
CORPORATE LIMITS.  (FN1)  PURSUANT TO THIS AUTHORITY, THE CITY OF
LITTLE ROCK AND THE CITY OF NORTH LITTLE ROCK HAVE FOR SOME YEARS
IMPOSED ANNUAL LICENSE TAXES ON A BROAD VARIETY OF BUSINESSES,
OCCUPATIONS, AND PROFESSIONS.  (FN2)  CHARITABLE ORGANIZATIONS WHICH
ENGAGE IN THE ACTIVITIES AFFECTED ARE RELIEVED FROM PAYING THE TAXES. 

IN 1957 THE TWO CITIES ADDED IDENTICAL AMENDMENTS TO THEIR OCCUPATION
LICENSE TAX ORDINANCES.  THESE AMENDMENTS REQUIRE THAT ANY ORGANIZATION
OPERATING WITHIN THE MUNICIPALITY IN QUESTION MUST SUPPLY TO THE CITY
CLERK, UPON REQUEST AND WITHIN A SPECIFIED TIME, (1) THE OFFICIAL NAME
OF THE ORGANIZATION; (2) ITS HEADQUARTERS OR REGULAR MEETING PLACE; (3)
THE NAMES OF THE OFFICERS, AGENTS, SERVANTS, EMPLOYEES, OR
REPRESENTATIVES, AND THEIR SALARIES; (4) THE PURPOSE OF THE
ORGANIZATION; (5) A STATEMENT AS TO DUES, ASSESSMENTS, AND
CONTRIBUTIONS PAID, BY WHOM AND WHEN PAID, TOGETHER WITH A STATEMENT
REFLECTING THE DISPOSITION OF THE FUNDS AND THE TOTAL NET INCOME; (6)
AN AFFIDAVIT STATING WHETHER THE ORGANIZATION IS SUBORDINATE TO A
PARENT ORGANIZATION, AND IF SO, THE LATTER'S NAME.  THE ORDINANCES
EXPRESSLY PROVIDE THAT ALL INFORMATION FURNISHED SHALL BE PUBLIC AND
SUBJECT TO THE INSPECTION OF ANY INTERESTED PARTY AT ALL REASONABLE
BUSINESS HOURS.  (FN3) 

PETITIONER BATES WAS THE CUSTODIAN OF THE RECORDS OF THE LOCAL BRANCH
OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE IN
LITTLE ROCK, AND PETITIONER WILLIAMS WAS THE CUSTODIAN OF THE RECORDS
OF THE NORTH LITTLE ROCK BRANCH.  THESE LOCAL ORGANIZATIONS SUPPLIED
THE TWO MUNICIPALITIES WITH ALL THE INFORMAION REQUIRED BY THE
ORDINANCES, EXCEPT THAT DEMANDED UNDER SEC. 2E OF EACH ORDINANCE WHICH
WOULD HAVE REQUIRED DISCLOSURE OF THE NAMES OF THE ORGANIZATIONS'
MEMBERS AND CONTRIBUTORS.  INSTEAD OF FURNISHING THE DETAILED BREAKDOWN
REQUIRED BY THIS SECTION OF THE NORTH LITTLE ROCK ORDINANCE, THE
PETITIONER WILLIAMS WROTE TO THE CITY CLERK AS FOLLOWS: 

"E.  THE FINANCIAL STATEMENT IS AS FOLLOWS: JANUARY 1, 1957 TO
DECEMBER 4, 1957.  TOTAL RECEIPTS FROM MEMBERSHIP AND CONTRIBUTORS
$252.00.  TOTAL EXPENDITURES  $183.60 

(TO NATIONAL OFFICE) SECRETARIAL HELP             5.00 STATIONERY,
STAMPS, ETC. 

     3.00 TOTAL                                  191.60 ON HAND
60.40 

"F.  I AM ATTACHING MY AFFIDAVIT AS PRESIDENT INDICATING THAT WE ARE
A BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE, A NEW YORK CORPORATION. 

"WE CANNOT GIVE YOU ANY INFORMATION WITH RESPECT TO THE NAMES AND
ADDRESSES OF OUR MEMBERS AND CONTRIBUTORS OR ANY INFORMATION WHICH MAY
LEAD TO THE ASCERTAINMENT OF SUCH INFORMATION.  WE BASE THIS REFUSAL ON
THE ANTI-NAACP CLIMATE IN THIS STATE.  IT IS OUR GOOD FAITH AND BELIEF
THAT THE PUBLIC DISCLOSURE OF THE NAMES OF OUR MEMBERS AND CONTRIBUTORS
MIGHT LEAD TO THEIR HARASSMENT, ECONOMIC REPRISALS, AND EVEN BODILY
HARM.  MOREOVER, EVEN ASIDE FROM THAT POSSIBILITY, WE HAVE BEEN ADVISED
BY OUR COUNSEL, AND WE DO SO BELIEVE THAT THE CITY HAS NO RIGHT UNDER
THE CONSTITUTION AND LAWS OF THE UNITED STATES, AND UNDER THE
CONSTITUTION AND LAWS OF THE STATE OF ARKANSAS TO DEMAND THE NAMES AND
ADDRESSES OF OUR MEMBERS AND CONTRIBUTORS.  WE ASSERT ON BEHALF OF THE
ORGANIZATION AND ITS MEMBERS THE RIGHT TO CONTRIBUTE TO THE NAACP AND
TO SEEK UNDER ITS AEGIS TO ACCOMPLISH THE AIMS AND PURPOSES HEREIN
DESCRIBED FREE FROM ANY RESTRAINTS OR INTERFERENCE FROM CITY OR STATE
OFFICIALS.  IN ADDITION WE ASSERT THE RIGHT OF OUR MEMBERS AND
CONTRIBUTORS TO PARTICIPATE IN THE ACTIVITIES OF THE NAACP,
ANONYMOUSLY, A RIGHT WHICH HAS BEEN RECOGNIZED AS THE BASIC RIGHT OF
EVERY AMERICAN CITIZEN SINCE THE FOUNDING OF THIS COUNTRY  ...  ." 

A SUBSTANTIALLY IDENTICAL WRITTEN STATEMENT WAS SUBMITTED ON BEHALF
OF THE LITTLE ROCK BRANCH OF THE ASSOCIATION TO THE CLERK OF THAT
CITY. 

AFTER REFUSING UPON FURTHER DEMAND TO SUBMIT THE NAMES OF THE MEMBERS
OF HER ORGANIZATION, (FN4) EACH PETITIONER WAS TRIED, CONVICTED, AND
FINED FOR A VIOLATION OF THE ORDINANCE OF HER RESPECTIVE MUNICIPALITY. 
AT THE BATES TRIAL EVIDENCE WAS OFFERED TO SHOW THAT MANY FORMER
MEMBERS OF THE LOCAL ORGANIZATION HAD DECLINED TO RENEW THEIR
MEMBERSHIP BECAUSE OF THE EXISTENCE OF THE ORDINANCE IN QUESTION. 
(FN5)  SIMILAR EVIDENCE WAS RECEIVED IN THE WILLIAMS TRIAL, (FN6) AS
WELL AS EVIDENCE THAT THOSE WHO HAD BEEN PUBLICLY IDENTIFIED IN THE
COMMUNITY AS MEMBERS OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE HAD BEEN SUBJECTED TO HARASSMENT AND THREATS OF BODILY
HARM.  (FN7) 

ON APPEAL THE CASES WERE CONSOLIDATED IN THE SUPREME COURT OF
ARKANSAS, AND, WITH TWO JUSTICES DISSENTING, THE CONVICTIONS WERE
UPHELD.  229 ARK. 819, 319 S.W.2D 37.  THE COURT CONCLUDED THAT
COMPULSORY DISCLOSURE OF THE MEMBERSHIP LISTS UNDER THE CIRCUMSTANCES
WAS "NOT AN UNCONSTITUTIONAL INVASION OF THE FREEDOMS GUARANTEED  ..." 
BUT "A MERE INCIDENT TO A PERMISSIBLE LEGAL RESULT."  (FN8)  BECAUSE OF
THE SIGNIFICANT CONSTITUTIONAL QUESTION INVOLVED, WE GRANTED
CERTIORARI.  359 U.S. 988. 

LIKE FREEDOM OF SPEECH AND A FREE PRESS, THE RIGHT OF PEACEABLE
ASSEMBLY WAS CONSIDERED BY THE FRAMERS OF OUR CONSTITUTION TO LIE AT
THE FOUNDATION OF A GOVERNMENT BASED UPON THE CONSENT OF AN INFORMED
CITIZENRY - A GOVERNMENT DEDICATED TO THE ESTABLISHMENT OF JUSTICE AND
THE PRESERVATION OF LIBERTY.  U.S. CONST., AMEND. I. AND IT IS NOW
BEYOND DISPUTE THAT FREEDOM OF ASSOCIATION FOR THE PURPOSE OF ADVANCING
IDEAS AND AIRING GRIEVANCES IS PROTECTED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT FROM INVASION BY THE STATES.  DE JONGE V.
OREGON, 299 U.S. 353, 364; N.A.A.C.P. V. ALABAMA, 357 U.S. 449, 460. 

FREEDOMS SUCH AS THESE ARE PROTECTED NOT ONLY AGAINST HEAVY-HANDED
FRONTAL ATTACK, BUT ALSO FROM BEING STIFLED BY MORE SUBTLE GOVERNMENTAL
INTERFERENCE.  GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; MURDOCK V.
PENNSYLVANIA, 319 U.S. 105; AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382, 402; N.A.A.C.P. V. ALABAMA, SUPRA; SMITH V. CALIFORNIA, 361
U.S. 147.  "IT IS HARDLY A NOVEL PERCEPTION THAT COMPELLED DISCLOSURE
OF AFFILIATION WITH GROUPS ENGAGED IN ADVOCACY MAY CONSTITUTE AN
EFFECTIVE  ...  RESTRAINT ON FREEDOM OF ASSOCIATION  ...  .  THIS COURT
HAS RECOGNIZED THE VITAL RELATIONSHIP BETWEEN FREEDOM TO ASSOCIATE AND
PRIVACY IN ONE'S ASSOCIATIONS ...  .  INVIOLABILITY OF PRIVACY IN GROUP
ASSOCIATION MAY IN MANY CIRCUMSTANCES BE INDISPENSABLE TO PRESERVATION
OF FREEDOM OF ASSOCIATION, PARTICULARLY WHERE A GROUP ESPOUSES
DISSIDENT BELIEFS."  N.A.A.C.P. V. ALABAMA, 357 U.S., AT 462. 

ON THIS RECORD IT SUFFICIENTLY APPEARS THAT COMPULSORY DISCLOSURE OF
THE MEMBERSHIP LISTS OF THE LOCAL BRANCHES OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE WOULD WORK A SIGNIFICANT
INTERFERENCE WITH THE FREEDOM OF ASSOCIATION OF THEIR MEMBERS.  (FN9)
THERE WAS SUBSTANTIAL UNCONTROVERTED EVIDENCE THAT PUBLIC
IDENTIFICATION OF PERSONS IN THE COMMUNITY AS MEMBERS OF THE
ORGANIZATIONS HAD BEEN FOLLOWED BY HARASSMENT AND THREATS OF BODILY
HARM.  THERE WAS ALSO EVIDENCE THAT FEAR OF COMMUNITY HOSTILITY AND
ECONOMIC REPRISALS THAT WOULD FOLLOW PUBLIC DISCLOSURE OF THE
MEMBERSHIP LISTS HAD DISCOURAGED NEW MEMBERS FROM JOINING THE
ORGANIZATIONS AND INDUCED FORMER MEMBERS TO WITHDRAW.  THIS REPRESSIVE
EFFECT, WHILE IN PART THE RESULT OF PRIVATE ATTITUDES AND PRESSURES,
WAS BROUGHT TO BEAR ONLY AFTER THE EXERCISE OF GOVERNMENTAL POWER HAD
THREATENED TO FORCE DISCLOSURE OF THE MEMBERS' NAMES.  N.A.A.C.P. V.
ALABAMA, 357 U.S., AT 463.  THUS, THE THREAT OF SUBSTANTIAL GOVERNMENT
ENCROACHMENT UPON IMPORTANT AND TRADITIONAL ASPECTS OF INDIVIDUAL
FREEDOM IS NEITHER SPECULATIVE NOR REMOTE. 

DECISION IN THIS CASE MUST FINALLY TURN, THEREFORE, ON WHETHER THE
CITIES AS INSTRUMENTALITIES OF THE STATE HAVE DEMONSTRATED SO COGENT AN
INTEREST IN OBTAINING AND MAKING PUBLIC THE MEMBERSHIP LISTS OF THESE
ORGANIZATIONS AS TO JUSTIFY THE SUBSTANTIAL ABRIDGMENT OF ASSOCIATIONAL
FREEDOM WHICH SUCH DISCLOSURES WILL EFFECT.  WHERE THERE IS A
SIGNIFICANT ENCROACHMENT UPON PERSONAL LIBERTY, THE STATE MAY PREVAIL
ONLY UPON SHOWING A SUBORDINATING INTEREST WHICH IS COMPELLING. 
N.A.A.C.P. V. ALABAMA, 357 U.S. 449.  SEE ALSO JACOBSON V.
MASSACHUSETTS, 197 U.S. 11; SCHNEIDER V. STATE, 308 U.S. 147; COX V.
NEW HAMPSHIRE, 312 U.S. 569, 574; MURDOCK V. PENNSYLVANIA, 319 U.S.
105; PRINCE V. MASSACHUSETTS, 321 U.S. 158; KOVACS V. COOPER, 336 U.S.
77. 

IT CANNOT BE QUESTIONED THAT THE GOVERNMENTAL PURPOSE UPON WHICH THE
MUNICIPALITIES RELY IS A FUNDAMENTAL ONE.  NO POWER IS MORE BASIC TO
THE ULTIMATE PURPOSE AND FUNCTION OF GOVERNMENT THAN IS THE POWER TO
TAX.  SEE JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 150.  NOR CAN
IT BE DOUBTED THAT THE PROPER AND EFFICIENT EXERCISE OF THIS ESSENTIAL
GOVERNMENTAL POWER MAY SOMETIMES ENTAIL THE POSSIBILITY OF ENCROACHMENT
UPON INDIVIDUAL FREEDOM.  SEE UNITED STATES V. KAHRIGER, 345 U.S. 22;
HUBBARD V. MELLON, 55 APP. D.C. 341, 5 F.2D 764. 

IT WAS AS AN ADJUNCT OF THEIR POWER TO IMPOSE OCCUPATIONAL LICENSE
TAXES THAT THE CITIES ENACTED THE LEGISLATION HERE IN QUESTION.  (FN10)
BUT GOVERNMENTAL ACTION DOES NOT AUTOMATICALLY BECOME REASONABLY
RELATED TO THE ACHIEVEMENT OF A LEGITIMATE AND SUBSTANTIAL GOVERNMENTAL
PURPOSE BY MERE ASSERTION IN THE PREAMBLE OF AN ORDINANCE.  WHEN IT IS
SHOWN THAT STATE ACTION THREATENS SIGNIFICANTLY TO IMPINGE UPON
CONSTITUTIONALLY PROTECTED FREEDOM IT BECOMES THE DUTY OF THIS COURT TO
DETERMINE WHETHER THE ACTION BEARS A REASONABLE RELATIONSHIP TO THE
ACHIEVEMENT OF THE GOVERNMENTAL PURPOSE ASSERTED AS ITS JUSTIFICATION. 

IN THIS RECORD WE CAN FIND NO RELEVANT CORRELATION BETWEEN THE POWER
OF THE MUNICIPALITIES TO IMPOSE OCCUPATIONAL LICENSE TAXES AND THE
COMPULSORY DISCLOSURE AND PUBLICATION OF THE MEMBERSHIP LISTS OF THE
LOCAL BRANCHES OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE.  THE OCCUPATIONAL LICENSE TAX ORDINANCES OF THE
MUNICIPALITIES ARE SQUARELY AIMED AT REACHING ALL THE COMMERCIAL,
PROFESSIONAL, AND BUSINESS OCCUPATIONS WITHIN THE COMMUNITIES.  THE
TAXES ARE NOT, AND AS A MATTER OF STATE LAW CANNOT BE, BASED ON
EARNINGS OR INCOME, BUT UPON THE NATURE OF THE OCCUPATION OR ENTERPRISE
CONDUCTED. 

INQUIRY OF ORGANIZATIONS WITHIN THE COMMUNITIES AS TO THE PURPOSE AND
NATURE OF THEIR ACTIVITIES WOULD THUS APPEAR TO BE ENTIRELY RELEVANT TO
ENFORCEMENT OF THE ORDINANCES.  SUCH AN INQUIRY WAS ADDRESSED TO THESE
ORGANIZATIONS AND WAS ANSWERED AS FOLLOWS: 

"WE ARE AN AFFILIATE OF A NATIONAL ORGANIZATION SEEKING TO SECURE FOR
AMERICAN NEGROES THEIR RIGHTS AS GUARANTEED BY THE CONSTITUTION OF THE
UNITED STATES.  OUR PURPOSES MAY BEST BE DESCRIBED BY QUOTING FROM THE
ARTICLES OF INCORPORATION OF OUR NATIONAL ORGANIZATION WHERE THESE
PURPOSES ARE SET FORTH AS: 

"'  ...  VOLUNTARILY TO PROMOTE EQUALITY OF RIGHTS AND ERADICATE
CASTE OR RACE PREJUDICE AMOND THE CITIZENS OF THE UNITED STATES; TO
ADVANCE THE INTEREST OF COLORED CITIZENS; TO SECURE FOR THEM IMPARTIAL
SUFFRAGE; AND TO INCREASE THEIR OPPORTUNITIES FOR SECURING JUSTICE IN
THE COURTS, EDUCATION FOR THEIR CHILDREN, EMPLOYMENT ACCORDING TO THEIR
ABILITY, AND COMPLETE EQUALITY BEFORE THE LAW.  TO ASCERTAIN AND
PUBLISH ALL FACTS BEARING UPON THESE SUBJECTS AND TO TAKE ANY LAWFUL
ACTION THEREON; TOGETHER WITH ANY KIND AND ALL THINGS WHICH MAY
LAWFULLY BE DONE BY A MEMBERSHIP CORPORATION ORGANIZED UNDER THE LAWS
OF THE STATE OF NEW YORK FOR THE FURTHER ADVANCEMENT OF THESE
OBJECTS.' 

"THE ARTICLES OF INCORPORATION HEREINABOVE REFERRED TO ARE ON FILE IN
THE OFFICE OF THE SECRETARY OF STATE OF THE STATE OF ARKANSAS.  IN
ACCORD WITH THESE PURPOSES AND AIRMS, THIS  ...  BRANCH, NAACP WAS
CHARTERED AND ORGANIZED, AND WE ARE SEEKING TO EFFECTUATE THESE
PRINCIPLES WITHIN THIS MUNICIPALITY." 

THE MUNICIPALITIES HAVE NOT SUGGESTED THAT AN ACITIVITY SO DESCRIBED,
EVEN IF CONDUCTED FOR PROFIT, WOULD FALL WITHIN ANY OF THE OCCUPATIONAL
CLASSIFICATIONS FOR WHICH A LICENSE IS REQUIRED OR A TAX PAYABLE.  ON
ORAL ARGUMENT COUNSEL FOR THE CITY OF LITTLE ROCK WAS UNABLE TO RELATE
ANY ACTIVITY OF THESE ORGANIZATIONS TO WHICH A LICENSE TAX MIGHT
ATTACH.  (FN11)  AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT A
TAX CLAIM HAS EVER BEEN ASSERTED AGAINST EITHER ORGANIZATION.  IF THE
ORGANIZATIONS WERE TO CLAIM THE EXEMPTION WHICH THE ORDINANCE GRANTS TO
CHARITABLE ENDEAVORS, INFORMATION AS TO THE SPECIFIC SOURCES AND
EXPENDITURES OF THEIR FUNDS MIGHT WELL BE A SUBJECT OF RELEVANT
INQUIRY.  BUT THERE IS NOTHING TO SHOW THAT ANY EXEMPTION HAS EVER BEEN
SOUGHT, CLAIMED, OR GRANTED - AND POSITIVE EVIDENCE IN THE RECORD TO
THE CONTRARY.    IN SUM, THERE IS A COMPLETE FAILURE IN THIS RECORD TO
SHOW (1) THAT THE ORGANIZATIONS WERE ENGAGED IN ANY OCCUPATION FOR
WHICH A LICENSE WOULD BE REQUIRED, EVEN IF THE OCCUPATION WERE
CONDUCTED FOR A PROFIT; (2) THAT THE CITIES HAVE EVER ASSERTED A CLAIM
AGAINST THE ORGANIZATIONS FOR PAYMENT OF AN OCCUPATIONAL LICENSE TAX;
(3) THAT THE ORGANIZATIONS HAVE EVER ASSERTED EXEMPTION FROM A TAX
IMPOSED BY THE MUNICIPALITIES, EITHER BECAUSE OF THEIR ALLEGED
NONPROFIT CHARACTER OR FOR ANY OTHER REASON. 

WE CONCLUDE THAT THE MUNICIPALITIES HAVE FAILED TO DEMONSTRATE A
CONTROLLING JUSTIFICATION FOR THE DETERRENCE OF FREE ASSOCIATION WHICH
COMPULSORY DISCLOSURE OF THE MEMBERSHIP LISTS WOULD CAUSE.  THE
PETITIONERS CANNOT BE PUNISHED FOR REFUSING TO PRODUCE INFORMATION
WHICH THE MUNICIPALITIES COULD NOT CONSTITUTIONALLY REQUIRE.  THE
JUDGMENTS CANNOT STAND.  REVERSED. 

FN1  ARK. STAT., 1947, SEC. 19-4601. 

FN2  LITTLE ROCK ORD. NO. 7444.  NORTH LITTLE ROCK ORD. NO. 1786. 
THESE ORDINANCES HAVE BEEN AMENDED NUMEROUS TIMES BY ADDING VARIOUS
BUSINESSES, OCCUPATIONS AND PROFESSIONS TO BE LICENSED, AND BY CHANGING
THE RATES OF THE TAXES IMPOSED. 

FN3  THE PERTINENT PROVISIONS OF THE ORDINANCES ARE AS FOLLOWS: 

"WHEREAS, IT HAS BEEN FOUND AND DETERMINED THAT CERTAIN ORGANIZATIONS
WITHIN THE CITY  ...  HAVE BEEN CLAIMING IMMUNITY FROM THE TERMS OF THE
ORDINANCE, GOVERNING THE PAYMENT OF OCCUPATION LICENSES LEVIED FOR THE
PRIVILEGE OF DOING BUSINESS WITHIN THE CITY, UPON THE PREMISE THAT SUCH
ORGANIZATIONS ARE BENEVOLENT, CHARITABLE, MUTUAL BENEFIT, FRATERNAL OR
NON-PROFIT, AND: 

"WHEREAS, MANY SUCH ORGANIZATIONS CLAIMING THE OCCUPATION LICENSE
EXEMPTION ARE MERE SUBTERFUGES FOR BUSINESSES BEING OPERATED FOR PROFIT
WHICH ARE SUBJECT TO THE OCCUPATION LICENSE ORDINANCE: 

"NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY  ...
. 

"SECTION 1.  THE WORD 'ORGANIZATION' AS USED HEREIN MEANS ANY GROUP
OF INDIVIDUALS, WHETHER INCORPORATED OR UNINCORPORATED. 

"SECTION 2.  ANY ORGANIZATION OPERATING OR FUNCTIONING WITHIN THE
CITY  ...  INCLUDING BUT NOT LIMITED TO CIVIC, FRATERNAL, POLITICAL,
MUTUAL BENEFIT, LEGAL, MEDICAL, TRADE, OR OTHER ORGANIZATION, UPON THE
REQUEST OF THE MAYOR, ALDERMAN, MEMBER OF THE BOARD OF DIRECTORS, CITY
CLERK, CITY COLLECTOR, OR CITY ATTORNEY, SHALL LIST WITH THE CITY CLERK
THE FOLLOWING INFORMATION WITHIN 15 DAYS AFTER SUCH REQUEST IS
SUBMITTED: 

"A.  THE OFFICIAL NAME OF THE ORGANIZATION. 

"B.  THE OFFICE, PLACE OF BUSINESS, HEADQUARTERS OR USUAL MEETING
PLACE OF SUCH ORGANIZATION. 

"C.  THE OFFICERS, AGENTS, SERVANTS, EMPLOYEES OR REPRESENTATIVES OF
SUCH ORGANIZATION, AND THE SALARIES PAID TO THEM. 

"D. THE PURPOSE OR PURPOSES OF SUCH ORGANIZATION. 

"E.  A FINANCIAL STATEMENT OF SUCH ORGANIZATION, INCLUDING DUES,
FEES, ASSESSMENTS AND/OR CONTRIBUTIONS PAID, BY WHOM PAID, AND THE DATE
THEREOF, TOGETHER WITH THE STATEMENT REFLECTING THE DISPOSITION OF SUCH
SUMS, TO WHOM AND WHEN PAID, TOGETHER WITH THE TOTAL NET INCOME OF SUCH
ORGANIZATION. 

"F.  AN AFFIDAVIT BY THE PRESIDENT OR OTHER OFFICIATING OFFICER OF
THE ORGANIZATION STATING WHETHER THE ORGANIZATION IS SUBORDINATE TO A
PARENT ORGANIZATION, AND IF SO, THE NAME OF THE PARENT ORGANIZATION. 

"SECTION 3.  THIS ORDINANCE SHALL BE CUMULATIVE TO OTHER ORDINANCES
HERETOFORE PASSED BY THE CITY WITH REFERENCE TO OCCUPATION LICENSES AND
THE COLLECTION THEREOF. 

"SECTION 4.  ALL INFORMATION OBTAINED PURSUANT TO THIS ORDINANCE
SHALL BE DEEMED PUBLIC AND SUBJECT TO THE INSPECTION OF ANY INTERESTED
PARTY AT ALL REASONABLE BUSINESS HOURS. 

"SECTION 5.  ANY SECTION OR PART OF THIS ORDINANCE DECLARED TO BE
UNCONSITUTIONAL OR VOID SHALL NOT AFFECT THE REMAINING SECTIONS OF THE
ORDINANCE, AND TO THIS END THE SECTIONS OR SUBSECTIONS HEREOF ARE
DECLARED TO BE SEVERABLE. 

"SECTION 6.  ANY PERSON OR ORGANIZATION WHO SHALL VIOLATE THE
PROVISIONS OF THIS ORDINANCE SHALL BE DEEMED GUILTY OF A MISDEMEANOR,
AND UPON CONVICTION THEREOF SHALL BE FINED  ...  ." 

FN4  SECTION 2E OF THE ORDINANCES DOES NOT EXPLICITLY REQUIRE
SUBMISSION OF MEMBERSHIP LISTS, BUT, RATHER, OF "DUES  ...  AND/OR
CONTRIBUTIONS PAID, BY WHOM PAID  ...  ."  THAT THE EFFECT OF THIS
LANGUAGE WAS TO REQUIRE SUBMISSION OF THE NAMES OF ALL MEMBERS WAS MADE
CLEAR IN THE SUPPLEMENTAL REQUEST MADE BY THE CITY CLERK OF NORTH
LITTLE ROCK TO THE PETITIONER WILLIAMS: 

"DEAR MADAM: 

"AT A REGULAR MEETING OF THE NORTH LITTLE ROCK CITY COUNCIL HELD IN
THE COUNCIL CHAMBER ON DECEMBER 9, 1957, I WAS INSTRUCTED TO REQUEST A
LIST OF THE NAMES AND ADDRESSES OF ALL THE OFFICERS AND MEMBERS OF THE
NORTH LITTLE ROCK BRANCH OF THE NAACP. 

"THIS PORTION OF THE QUESTIONNAIRE ANSWERED BY YOU ON DECEMBER 4,
1957 DID NOT FURNISH THIS INFORMATION.  THE ABOVE INFORMATION MUST BE
RECEIVED NOT LATER THAN DECEMBER 18, 1957 AS REQUESTED IN THE ORIGINAL
QUESTIONNAIRE RECEIVED BY YOU ON DECEMBER 3, 1957." 

(IN FACT, THE NAMES OF ALL THE OFFICERS OF THE NORTH LITTLE ROCK
BRANCH HAD ALREADY BEEN SUBMITTED IN ACCORDANCE WITH SEC. 2C OF THE
ORDINANCE.) 

FN5  FOR EXAMPLE, PETITIONER BATES TESTIFIED:  "WELL, I WILL SAY IT
LIKE THIS - FOR THE PAST FIVE YEARS I HAVE BEEN COLLECTING, I GUESS,
150 TO 200 MEMBERS EACH YEAR - JUST RENEWALS OF THE SAME PEOPLE.  THIS
YEAR, I GUESS I LOST 100 TO 150 OF THOSE SAME MEMBERS BECAUSE WHEN I
WENT BACK FOR RENEWALS THEY SAID, 'WELL, WE WILL WAIT AND SEE WHAT
HAPPENS IN THE BENNETT ORDINANCE.'" 

FN6  FOR EXAMPLE, A WITNESS TESTIFIED:  "WELL, THE PEOPLE ARE AFRAID
TO JOIN, AFRAID TO JOIN BECAUSE THE PEOPLE - THEY DON'T WANT THEIR
NAMES EXPOSED AND THEY ARE AFRAID THEIR NAMES WILL BE EXPOSED AND THEY
MIGHT LOSE THEIR JOBS.  THEY WILL BE INTIMIDATED AND THEY ARE AFRAID TO
JOIN.  THEY SAID, 'WELL, YOU WILL HAVE TO WAIT.  I CAN'T DO IT.'  THEY
ARE AFRAID TO GIVE THEIR - BECAUSE THEY ARE AFRAID SOMEBODY, IF THEIR
NAMES ARE PUBLICIZED, THEN THEY WILL LOSE THEIR JOBS OR BE INTIMIDATED
OR WHAT-NOT." 

FN7  FOR EXAMPLE, PETITIONER WILLIAMS TESTIFIED:  "WELL, I HAVE - WE
WERE NOT ABLE TO REST AT NIGHT OR DAY FOR QUITE A WHILE.  WE HAD TO
HAVE OUR PHONE NUMBER CHANGED BECAUSE THEY CALL THAT DAY AND NIGHT AND
THEN WE - THEY HAVE FOUND OUT THE SECOND PHONE NUMBER AND THEY DID THE
SAME WAY AND THEY CALLED ME ALL HOURS OF NIGHT OVER THE TELEPHONE AND
THEN I HAD TO GET A NEW NUMBER AND THEY HAVE BEEN TRYING TO FIND OUT
THAT ONE, OF COURSE.  I WOULD TELL THEM WHO IS TALKING AND THEY HAVE
THROWED STONES AT MY HOME.  THEY WROTE ME - I GOT A - I RECEIVED A
LETTER THREATENING MY LIFE AND THEY THREATEN MY LIFE OVER THE
TELEPHONE.  THAT IS THE WAY." 

FN8  THE ARKANSAS SUPREME COURT CONSTRUED SEC. 2E OF THE ORDINANCES
AS REQUIRING DISCLOSURE "OF THE MEMBERSHIP LIST."  229 ARK., AT - , 319
S.W.2D, AT 41. 

FN9 THE CITIES DO NOT CHALLENGE PETITIONERS' RIGHT TO RAISE ANY
OBJECTIONS OR DEFENSES AVAILABLE TO THEIR ORGANIZATIONS, NOR DO THE
CITIES CHALLENGE THE RIGHT OF THE ORGANIZATIONS IN THESE CIRCUMSTANCES
TO ASSERT THE INDIVIDUAL RIGHTS OF THEIR MEMBERS.  CF. N.A.A.C.P. V.
ALABAMA, 357 U.S. 449, AT 458-459. 

FN10  SEE NOTE 3, SUPRA. 

FN11  A "CATCH-ALL" PROVISION OF THE LITTLE ROCK ORDINANCE IMPOSES AN
ANNUAL TAX UPON "ANY PERSON, FIRM, OR CORPORATION WITHIN THE CITY  ...
ENGAGING IN THE BUSINESS OF SELLING ANY AND ALL KINDS OF GOODS, WARES,
AND MERCHANDISE, WHETHER RAW MATERIALS OR FINISHED PRODUCTS, OR BOTH,
FROM A REGULARLY ESTABLISHED PLACE OF BUSINESS MAINTAINED WITHIN THE
CITY  ...  ."  THE TAX IS MEASURED BY "THE GROSS VALUE OF THE AVERAGE
STOCK INVENTORY FOR THE PRECEDING YEAR," WITH A MINIMUM OF $25.  IT WAS
CONCEDED ON ORAL ARGUMENT BY COUNSEL FOR THE CITY OF LITTLE ROCK THAT
THIS PROVISION WAS INAPPLICABLE.  NO BRIEF WAS FILED NOR ORAL ARGUMENT
MADE ON BEHALF OF THE CITY OF NORTH LITTLE ROCK. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, CONCURRING. 

WE CONCUR IN THE JUDGMENT AND SUBSTANTIALLY WITH THE OPINION BECAUSE
WE THINK THE FACTS SHOW THAT THE ORDINANCES AS HERE APPLIED VIOLATE THE
FREEDOM OF SPEECH AND ASSEMBLY GUARANTEED BY THE FIRST AMENDMENT WHICH
THIS COURT HAS MANY TIMES HELD WAS MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT, AS FOR ILLUSTRATION IN JONES V. OPELIKA, 316 U.S.
584, AT 600, DISSENTING OPINION ADOPTED BY THE COURT IN 319 U.S. 103;
MURDOCK V. PENNSYLVANIA, 319 U.S. 105, AT 108; KINGSLEY CORP. V.
REGENTS, 360 U.S. 684.  AND SEE CASES CITED IN SPEISER V. RANDALL, 357
U.S. 513, 529, AT 530 (CONCURRING OPINION). 

MOREOVER, WE BELIEVE, AS WE INDICATED IN UNITED STATES V. RUMELY, 345
U.S. 41, 48, AT 56 (CONCURRING OPINION), THAT FIRST AMENDMENT RIGHTS
ARE BEYOND ABRIDGMENT EITHER BY LEGISLATION THAT DIRECTLY RESTRAINS
THEIR EXERCISE OR BY SUPPRESSION OR IMPAIRMENT THROUGH HARASSMENT,
HUMILIATION, OR EXPOSURE BY GOVERNMENT.  ONE OF THOSE RIGHTS, FREEDOM
OF ASSEMBLY, INCLUDES OF COURSE FREEDOM OF ASSOCIATION; AND IT IS
ENTITLED TO NO LESS PROTECTION THAN ANY OTHER FIRST AMENDMENT RIGHT AS
N.A.A.C.P. V. ALABAMA, 357 U.S. 449, AT 460, AND DE JONGE V. OREGON,
299 U.S. 353, AT 363, HOLD.  THESE ARE PRINCIPLES APPLICABLE TO ALL
PEOPLE UNDER OUR CONSTITUTION IRRESPECTIVE OF THEIR RACE, COLOR,
POLITICS, OR RELIGION.  THAT IS, FOR US, THE ESSENCE OF THE PRESENT
OPINION OF THE COURT. 
..END :
















PETITE V. UNITED STATES 361 U.S. 529 


NO. 45.  DECIDED FEBRUARY 23, 1960 - 262 F.2D 788, REMANDED WITH
DIRECTIONS TO VACATE JUDGMENTS AND DISMISS INDICTMENT. 


IN A CASE WHERE DOUBLE JEOPARDY WAS THE SOLE QUESTION PRESENTED, BASED
ON SEPARATE INDICTMENTS AND CONVICTIONS IN TWO DIFFERENT UNITED STATES
DISTRICT COURTS FOR THE SAME CRIMINAL CONDUCT, THE SOLICITOR GENERAL
MOVED TO VACATE THE SECOND JUDGMENT AND TO DISMISS THE SECOND
INDICTMENT, ON THE GROUND THAT IT IS THE GENERAL POLICY OF THE FEDERAL
GOVERNMENT THAT SEVERAL OFFENSES ARISING OUT OF A SINGLE TRANSACTION
SHOULD NOT BE MADE THE BASIS OF MULTIPLE PROSECUTIONS.  COUNSEL FOR
PETITIONER JOINED IN AND CONSENTED TO THE MOTION.  HELD:  WITHOUT
PASSING ON THE MERITS OF THE QUESTION OF DOUBLE JEOPARDY, THE CASE IS
REMANDED TO THE COURT OF APPEALS TO VACATE ITS JUDGMENT AND TO DIRECT
THE DISTRICT COURT TO VACATE ITS JUDGMENT AND DISMISS THE INDICTMENT. 
PP. 529-531. 

PETITE V. UNITED STATES. 

ON MOTION TO VACATE THE JUDGMENT AND DISMISS THE INDICTMENT. 

PER CURIAM. 

PETITIONER WAS INDICTED, WITH OTHERS, IN THE EASTERN DISTRICT OF
PENNSYLVANIA FOR CONSPIRING TO MAKE FALSE STATEMENTS TO AN AGENCY OF
THE UNITED STATES AT HEARINGS HELD IN PHILADELPHIA AND BALTIMORE UNDER
PROCEEDINGS FOR THE DEPORTATION OF AN ALIEN.  PETITIONER WAS ALSO
SEPARATELY INDICTED FOR SUBORNING PERJURY AT THE PHILADELPHIA
HEARINGS.  PETITIONER'S CO-DEFENDANTS PLEADED GUILTY TO THE CONSPIRACY
CHARGED.  PETITIONER WENT TO TRIAL ON BOTH INDICTMENTS, BUT AT THE
CLOSE OF THE GOVERNMENT'S CASE HE CHANGED HIS PLEA TO NOLO CONTENDERE
TO THE CONSPIRACY CHARGE, AND THE GOVERNMENT DISMISSED THE SUBORNATION
INDICTMENT.  HE WAS FINED $500 AND SENTENCED TO TWO MONTHS'
IMPRISONMENT, WHICH HE SERVED.  PETITIONER WAS SUBSEQUENTLY INDICTED IN
THE DISTRICT OF MARYLAND FOR SUBORNING THE PERJURY OF TWO WITNESSES AT
THE BALTIMORE HEARINGS.  AMONG THE OVERT ACTS WHICH HAD BEEN RELIED
UPON IN THE PENNSYLVANIA CONSPIRACY INDICTMENT WAS THE TESTIMONY OF
THESE TWO WITNESSES.   BECAUSE OF THIS, PETITIONER MOVED TO DISMISS THE
MARYLAND INDICTMENT ON THE GROUND OF DOUBLE JEOPARDY, BUT HIS MOTION
WAS DENIED, 147 F. SUPP.  791, AND THE CONVICTION WHICH RESULTED WAS
AFFIRMED BY THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, 262 F.2D 788. 

THEREUPON A PETITION FOR A WRIT OF CERTIORARI WAS FILED WITH THE
DOUBLE JEOPARDY ISSUE AS THE SINGLE QUESTION PRESENTED, AND CERTIORARI
WAS GRANTED.  360 U.S. 908.  THE GOVERNMENT DID NOT OPPOSE THE GRANTING
OF THIS PETITION, BUT INFORMED THE COURT THAT THE CASE WAS UNDER
CONSIDERATION BY THE DEPARTMENT OF JUSTICE TO DETERMINE WHETHER THE
SECOND PROSECUTION IN THE DISTRICT OF MARYLAND WAS CONSISTENT WITH THE
SOUND POLICY OF THE DEPARTMENT IN DISCHARGING ITS RESPONSIBILITY FOR
THE CONTROL OF GOVERNMENT LITIGATION WHOLLY APART FROM THE QUESTION OF
THE LEGAL VALIDITY OF THE CLAIM OF DOUBLE JEOPARDY. 

IN DUE COURSE THE GOVERNMENT FILED THIS MOTION FOR AN ORDER VACATING
THE JUDGMENT BELOW AND REMANDING THE CASE TO THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MARYLAND WITH DIRECTIONS TO DISMISS THE
INDICTMENT.  IT DID SO ON THE GROUND THAT IT IS THE GENERAL POLICY OF
THE FEDERAL GOVERNMENT "THAT SEVERAL OFFENSES ARISING OUT OF A SINGLE
TRANSACTION SHOULD BE ALLEGED AND TRIED TOGETHER AND SHOULD NOT BE MADE
THE BASIS OF MULTIPLE PROSECUTIONS, A POLICY DICTATED BY CONSIDERATIONS
BOTH OF FAIRNESS TO DEFENDANTS AND OF EFFICIENT AND ORDERLY LAW
ENFORCEMENT."  THE SOLICITOR GENERAL ON BEHALF OF THE GOVERNMENT
REPRESENTS THIS POLICY AS CLOSELY RELATED TO THAT AGAINST DUPLICATING
FEDERAL-STATE PROSECUTIONS, WHICH WAS FORMALLY DEFINED BY THE ATTORNEY
GENERAL OF THE UNITED STATES IN A MEMORANDUM TO THE UNITED STATES
ATTORNEYS.  (DEPARTMENT OF JUSTICE PRESS RELEASE, APR. 6, 1959.) 
COUNSEL FOR PETITIONER "JOINS IN AND CONSENTS" TO THE GOVERNMENT'S
MOTION. 

THE CASE IS REMANDED TO THE COURT OF APPEALS TO VACATE ITS JUDGMENT
AND TO DIRECT THE DISTRICT COURT TO VACATE ITS JUDGMENT AND TO DISMISS
THE INDICTMENT.  IN THE INTEREST OF JUSTICE, THE COURT IS CLEARLY
EMPOWERED THUS TO DISPOSE OF THE MATTER, 28 U.S.C. SEC. 2106, AND WE DO
SO WITH DUE REGARD FOR THE SETTLED RULE THAT THE COURT WILL NOT
"ANTICIPATE A QUESTION OF CONSTITUTIONAL LAW IN ADVANCE OF THE
NECESSITY OF DECIDING IT."  LIVERPOOL, NEW YORK & PHILADELPHIA S.S. CO.
V. COMMISSIONERS OF EMIGRATION, 113 U.S. 33, 39.  BY THUS DISPOSING OF
THE MATTER, WE ARE OF COURSE NOT TO BE UNDERSTOOD AS REMOTELY
INTIMATING IN ANY DEGREE AN OPINION ON THE QUESTION OF DOUBLE JEOPARDY
SOUGHT TO BE PRESENTED BY THE PETITION FOR CERTIORARI. 

MR. CHIEF JUSTICE WARREN, CONCURRING. 

I CONCUR WITH THE JUDGMENT OF THE COURT, BUT DESIRE TO RECORD MY
REASONS FOR SO DOING. 

THE SOLICITOR GENERAL, WHO HAS STATUTORY AUTHORITY TO CONDUCT
LITIGATION IN THIS COURT, (FN1) HAS REQUESTED US TO VACATE THE JUDGMENT
AND REMAND FOR DISMISSAL IN THE INTERESTS OF JUSTICE.  THE PETITIONER
HAS CONSENTED.  UNDER THESE CIRCUMSTANCES, I BELIEVE THAT 28 U.S.C.
SEC. 2106 EMPOWERS US TO ENTERTAIN THE MOTION.  (FN2) 

AUTHORITY TO GRANT THIS TYPE OF MOTION IS ONE THING, HOWEVER, AND
DETERMINATION OF THE CONSIDERATIONS RELEVANT TO A PROPER EXERCISE OF
THAT AUTHORITY IS ANOTHER.  AS I BELIEVE THAT THE COURT SHOULD NOT DENY
ALL SUCH MOTIONS PEREMPTORILY, SO DO I BELIEVE THAT WE SHOULD NOT
AUTOMATICALLY GRANT THEM THROUGH INVOCATION OF THE POLICY OF AVOIDING
DECISION OF CONSTITUTIONAL ISSUES.  THERE ARE CIRCUMSTANCES IN WHICH
OUR RESPONSIBILITY OF DEFINITIVELY INTERPRETING THE LAW OF THE LAND AND
OF SUPERVISING ITS JUDICIAL APPLICATION WOULD DICTATE THAT WE DISPOSE
OF A CASE ON ITS MERITS.  IN A SITUATION, FOR EXAMPLE, WHERE THE
INVALIDITY OF THE JUDGMENT IS CLEAR AND THE MOTION TO VACATE AND REMAND
IS OBVIOUSLY A MEANS OF AVOIDING AN ADJUDICATION, I THINK WE WOULD BE
REMISS IN OUR DUTY WERE WE TO GRANT THE MOTION. 

BUT THIS IS NOT SUCH A CASE.  ALTHOUGH A FULL HEARING MIGHT WELL
ESTABLISH PETITIONER'S CONTENTION THAT HIS CONVICTION VIOLATED THE
DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION, NO DEVIOUS PURPOSE CAN BE
ASCRIBED TO THE GOVERNMENT, WHICH ASSERTS THAT THE PROSECUTION OF
PETITIONER "WAS  ...  BY INADVERTENCE," AND THAT IT "DOES NOT INTEND TO
TAKE SUCH ACTION IN THE FUTURE."  ITS REPRESENTATION WITH RESPECT TO
FUTURE PRACTICE IS GIVEN SUPPORT BY THE ATTORNEY GENERAL'S MEMORANDUM
TO UNITED STATES ATTORNEYS WHICH ESTABLISHES A CLOSELY RELATED POLICY
AGAINST SUCCESSIVE FEDERAL-STATE PROSECUTIONS; AND THE REASONABLENESS
OF ITS REQUEST IS DEMONSTRATED BY THE FACT THAT THIS MEMORANDUM WAS
ISSUED AFTER THE PROSECUTION, THE CONVICTION, AND THE JUDGMENT OF THE
COURT OF APPEALS IN THIS CASE.  FOR THESE REASONS THE ACTION REQUESTED
IS, IN THE WORDS OF SEC. 2106, "JUST UNDER THE CIRCUMSTANCES." 

FN1  1 STAT. 92; 16 STAT. 162; R.S. SEC. 359; 5 U.S.C. SEC. 309. 

FN2  SECTION 2106 READS AS FOLLOWS: 

"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." 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN. 

THE GOVERNMENT HAS COMMENDABLY DONE THE JUST AND RIGHT THING IN
ASKING US TO WIPE THE SLATE CLEAN OF THIS SECOND FEDERAL CONVICTION FOR
THE SAME CRIMINAL CONDUCT.  BUT WITH ALL DEFERENCE, I DO NOT SEE HOW
OUR DUTY CAN BE FULLY PERFORMED IN THIS CASE IF OUR ACTION STOPS WITH
SIMPLY GIVING EFFECT TO A "POLICY" OF THE GOVERNMENT - A POLICY WHOSE
ONLY WRITTEN EXPRESSION DOES NOT EVEN COVER THE CASE AT BAR.  EVEN
WHERE THE GOVERNMENT CONFESSES ERROR, THIS COURT EXAMINES THE CASE ON
THE MERITS ITSELF, YOUNG V. UNITED STATES, 315 U.S. 257, 258-259, AND
ONE WOULD NOT HAVE THOUGHT OUR DUTY LESS IN THIS CASE - PARTICULARLY
WHERE THE GOVERNMENT HAS RESERVED THE RIGHT TO APPLY OR NOT APPLY ITS
"POLICY" IN ITS DISCRETION.  PRESUMABLY THIS RESERVATION WOULD APPLY TO
CASES AT THE APPELLATE LEVEL AS WELL.  "THE PROPER ADMINISTRATION OF
THE CRIMINAL LAW CANNOT BE LEFT MERELY TO THE STIPULATION OF PARTIES." 
ID., AT 259.  I BELIEVE THAT THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT WAS AN INSURMOUNTABLE BARRIER TO THIS SECOND PROSECUTION.  MY
REASONS FOR SUPPORTING THIS VIEW HAVE BEEN DETAILED IN MY SEPARATE
OPINION IN ABBATE V. UNITED STATES, 359 U.S. 187, 196.  ON THIS BASIS I
AGREE THAT THE JUDGMENT OF THE COURT OF APPEALS IS NOT TO STAND; BUT I
WOULD REVERSE IT ON THE MERITS. 
..END :









NEW YORK, VALENTI V. MCCLOSKEY 361 U.S. 534 


NO. 563.  DECIDED FEBRUARY 23, 1960 - APPEAL DISMISSED FOR WANT OF A
PROPERLY PRESENTED FEDERAL QUESTION - REPORTED BELOW:  6 N.Y.2D 390,
160 N.E.2D 647. 


NEW YORK EX REL. VALENTI V. MCCLOSKEY, SHERIFF, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A PROPERLY PRESENTED FEDERAL QUESTION. 
..END :
















NATIONAL CAN CORP. V. STATE TAX COMMISSION OF MARYLAND 361 U.S. 534 


NO. 564.  DECIDED FEBRUARY 23, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  220 MD. 418, 153 A.2D
287. 


NATIONAL CAN CORP. V. STATE TAX COMMISSION OF MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SIEBEL V. DEPARTMENT OF WELFARE OF THE CITY OF NEW YORK 361 U.S. 535 


NO. 568.  DECIDED FEBRUARY 23, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  6 N.Y.2D 536, 161
N.E.2D 1. 


SIEBEL V. DEPARTMENT OF WELFARE OF THE CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BOARD OF EDUCATION OF UNION FREE SCHOOL DIST. NO. 3 V. ALLEN 361 U.S.
535 


NO. 571.  DECIDED FEBRUARY 23, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  6 N.Y.2D 871, 983; 160
N.E.2D 119, 161 N.E.2D 738. 


BOARD OF EDUCATION OF UNION FREE SCHOOL DIST. NO. 3 ET AL. V. ALLEN,
COMMISSIONER OF EDUCATION. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














ALLENDALE CONGREGATION OF JEHOVAH'S WITNESSES V. GROSMAN 361 U.S. 536 


NO. 579.  DECIDED FEBRUARY 23, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  30 N.J. 273, 152 A.2D
569. 


ALLENDALE CONGREGATION OF JEHOVAH'S WITNESSES V. GROSMAN ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















DUNITZ V. CITY OF LOS ANGELES 361 U.S. 536 


NO. 581.  DECIDED FEBRUARY 23, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  SEE 170 CAL. APP. 2D 399, 338 P.2D 1001. 


DUNITZ ET AL. V. CITY OF LOS ANGELES ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HUGHES V. OKLAHOMA 361 U.S. 537 


NO. 594.  DECIDED FEBRUARY 23, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  346 P.2D 355. 


HUGHES V. OKLAHOMA. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF OKLAHOMA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















MCABEE V. UNITED STATES 361 U.S. 537 


NO. 111, MISC.  DECIDED FEBRUARY 23, 1960 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED - REPORTED BELOW:  104 U.S. APP. D.C. 278,
261 F.2D 744. 


MCABEE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  UPON THE SUGGESTION OF THE
SOLICITOR GENERAL THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR CONSIDERATION IN LIGHT OF
JOHNSON V. UNITED STATES, 352 U.S. 565, AND ELLIS V. UNITED STATES, 356
U.S. 674. 
..END :











HIGGINS V. STATE BAR OF CALIFORNIA 361 U.S. 538 


NO. 389, MISC.  DECIDED FEBRUARY 23, 1960 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


HIGGINS V. STATE BAR OF CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















RYAN V. TINSLEY 361 U.S. 538 


NO. 490, MISC.  DECIDED FEBRUARY 23, 1960. 


RYAN V. TINSLEY, WARDEN. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















DAVIS V. VIRGINIAN RAILWAY CO. 361 U.S. 354 


NO. 53.  ARGUED DECEMBER 10, 1959 - DECIDED JANUARY 25, 1960 - JUDGMENT
REVERSED AND CAUSE REMANDED. 


IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT TO RECOVER
DAMAGES FOR INJURIES RESULTING FROM PETITIONER'S FALL FROM A FREIGHT
CAR WHILE ACTING AS A CONDUCTOR IN CHARGE OF SHIFTING VARIOUS RAILROAD
CARS ON RESPONDENT'S TRACKS AT AN INDUSTRIAL PLANT, HELD: 

1.  THE ISSUE WHETHER THE INJURY WAS CAUSED BY RESPONDENT'S DIRECTION
TO COMPLETE THE SHIFTING OPERATION IN 30 MINUTES, PLUS THE INEXPERIENCE
OF THE BRAKEMEN ASSIGNED TO HELP HIM, SHOULD HAVE BEEN LEFT TO THE
JURY.  PP. 355-357. 

2.  THE EVIDENCE WAS INSUFFICIENT TO SUPPORT PETITIONER'S CLAIM THAT
THE PHYSICIAN FURNISHED BY RESPONDENT TO PETITIONER AFTER THE ACCIDENT
ADMINISTERED IMPROPER TREATMENT.  PP. 357-358. 

DAVIS V. VIRGINIAN RAILWAY CO. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A NEGLIGENCE CASE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT,
35 STAT. 65, 45 U.S.C. SEC. 51.  PETITIONER, AN EMPLOYEE OF RESPONDENT,
WAS INJURED WHILE SHIFTING VARIOUS RAILROAD CARS ON ITS TRACKS IN AND
ABOUT THE FORD MOTOR COMPANY PLANT AT NORFOLK, VIRGINIA.  HIS FIRST
CAUSE OF ACTION CHARGED RESPONDENT WITH NEGLIGENCE IN REQUIRING THE
SHIFTING OF THE CARS IN SUCH AN ACCELERATED TIME AND WITH SUCH
INEXPERIENCED HELP THAT PETITIONER WAS INJURED IN ATTEMPTING TO CARRY
OUT HIS INSTRUCTIONS.  IN HIS SECOND CLAIM PETITIONER ALLEGED THAT THE
PHYSICIAN FURNISHED PETITIONER BY RESPONDENT SUBSEQUENT TO HIS INJURY
ADMINISTERED HIM IMPROPER TREATMENT, THUS AGGRAVATING HIS INJURY, AND
THAT RESPONDENT WAS RESPONSIBLE FOR SUCH NEGLIGENCE.  AT THE CLOSE OF
THE CASE, THE TRIAL JUDGE SUSTAINED THE MOTION OF RESPONDENT TO STRIKE
PETITIONER'S EVIDENCE AND DISCHARGED THE JURY.  ON PETITION FOR WRIT OF
ERROR CLAIMING THAT THE ISSUES SHOULD HAVE BEEN PRESENTED TO THE JURY,
THE VIRGINIA SUPREME COURT OF APPEALS REJECTED THE PETITION AND, IN
EFFECT, AFFIRMED THE JUDGMENT, WITHOUT WRITTEN OPINION.  BELIEVING THAT
THE QUESTION POSED WAS OF IMPORTANCE IN THE UNIFORM ADMINISTRATION OF
THIS FEDERAL STATUTE, WE GRANTED CERTIORARI.  359 U.S. 964.  WE
CONCLUDE THAT THE ISSUE OF NEGLIGENCE AS TO THE INJURY SHOULD HAVE BEEN
SUBMITTED TO THE JURY, BUT THAT THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT THE MALPRACTICE CLAIM. 

PETITIONER WAS A YARD CONDUCTOR FOR RESPONDENT.  ON JULY 3, 1957, HE
WAS INSTRUCTED TO "SHIFT" OR "SPOT" VARIOUS RAILWAY CARS TO A LOADING
PLATFORM ON A SPUR TRACK OF THE FORD MOTOR COMPANY AT NORFOLK.  THERE
WERE 43 CARS INVOLVED.  SOME WERE EMPTY AND STANDING AT THE LOADING
TRACKS AT THE PLANT.  THESE HAD TO BE MOVED OUT TO MAKE WAY FOR THE
LOADED CARS WHICH WERE OUTSIDE THE PLANT IN RESPONDENT'S SHIFTING
YARDS.  THE JOB CALLED FOR THEM TO BE LINED UP AND THEN MOVED TO
PARTICULAR POSITIONS OR SPOTS ON THE TRACKS AT THE LOADING PLATFORM IN
THE PLANT WHERE FORD EMPLOYEES MIGHT REMOVE THEIR CONTENTS.  ON THE
MORNING OF THE ACCIDENT THERE WERE DESIGNATED AT THE FORD LOADING
PLATFORM SOME 22 SPOTS TO WHICH THE LOADED CARS WERE TO BE SWITCHED. 
TWO BRAKEMEN WERE ASSIGNED TO ASSIST PETITIONER IN THE OPERATION. 
PETITIONER WAS TO COMPLETE THE SPOTTING DURING THE LUNCH PERIOD AT THE
FORD PLANT, WHICH WAS 30 MINUTES.  THE EVIDENCE SHOWS THAT NEITHER OF
THE BRAKEMEN ASSIGNED TO PETITIONER WAS EXPERIENCED IN THIS PARTICULAR
OPERATION.  THE SENIOR BRAKEMAN HAD NEVER SPOTTED CARS AT THE PLANT
BEFORE, NOR HAD HE WORKED AS A SENIOR BRAKEMAN.  THE OTHER BRAKEMAN HAD
SPOTTED CARS AT THE PLANT FOR ONLY A SHORT PERIOD.  RAILROAD EMPLOYEES
CLASSED THE FORD "SWITCHING OPERATION" AS "A HOT JOB" BECAUSE "YOU DO
YOUR JOB A LITTLE FASTER THERE THAN YOU WOULD IN THE YARD."  IN THE
OPINION OF BRAKEMEN WHO HAD SPOTTED CARS THERE, THE MINIMUM TIME FOR
COMPLETION OF AN OPERATION INVOLVING THIS MANY CARS WAS 50 MINUTES, AND
THE MAXIMUM WELL OVER AN HOUR.  SINCE PETITIONER WAS INSTRUCTED TO
PERFORM THE TASK IN 30 MINUTES, IT WAS NECESSARY FOR HIM TO WORK FASTER
THAN HE NORMALLY WOULD.  IN ADDITION, THE SENIOR BRAKEMAN HAD INFORMED
PETITIONER OF HIS INEXPERIENCE, WHICH REQUIRED PETITIONER TO TAKE A
POSITION ON TOP OF THE BOXCARS IN ORDER TO BE READY TO ASSIST THE
BRAKEMEN.  NORMALLY, PETITIONER WOULD HAVE TAKEN HIS POSITION ON THE
GROUND WHERE A CONDUCTOR, SUCH AS HE, USUALLY CARRIED OUT HIS ASSIGNED
DUTIES.  WHEN ONE OF THE BRAKEMEN CALLED FOR ASSISTANCE IN THE SPOTTING
OPERATION, PETITIONER RAN ALONG THE TOP OF THE BOXCARS TOWARD THE
BRAKEMAN TO GIVE HIM HELP, BUT, UPON COMING TO A GONDOLA CAR, WAS
OBLIGED TO DESCEND THE LADDER OF THE BOXCAR NEXT TO IT.  PETITIONER
SLIPPED ON THE LADDER AND FELL TO THE GROUND, SUFFERING THE INJURY
COMPLAINED OF HERE. 

THE RECORD INDICATES THAT PETITIONER WOULD HAVE TAKEN HIS POSITION ON
THE GROUND RATHER THAN ON THE RAILROAD CARS BUT FOR THE INEXPERIENCE OF
THE BRAKEMEN.  THIS REQUIRED PETITIONER TO TAKE HIS POSITION ON TOP OF
THE CARS IN ORDER TO ASSIST THE BRAKEMEN - A FUNCTION NOT ORDINARILY
PERFORMED BY A YARD CONDUCTOR.  WE THINK IT SHOULD HAVE BEEN LEFT TO
THE JURY TO DECIDE WHETHER THE RESPONDENT'S DIRECTION TO COMPLETE THE
SPOTTING OPERATION WITHIN 30 MINUTES, (FN1) PLUS THE INEXPERIENCE OF
THE BRAKEMEN ASSIGNED TO PERFORM THIS "HOT JOB," MIGHT HAVE
PRECIPITATED PETITIONER'S INJURY.  "THE DEBATABLE QUALITY OF THAT
ISSUE, THE FACT THAT FAIR-MINDED MEN MIGHT REACH DIFFERENT CONCLUSIONS,
EMPHASIZE THE APPROPRIATENESS OF LEAVING THE QUESTION TO THE JURY.  THE
JURY IS THE TRIBUNAL UNDER OUR LEGAL SYSTEM TO DECIDE THAT TYPE OF
ISSUE (TILLER V. ATLANTIC COAST LINE R. CO. (318 U.S. 54)) AS WELL AS
ISSUES INVOLVING CONTROVERTED EVIDENCE.  JONES V. EAST TENNESSEE,
V.&G.R. CO., 128 U.S. 443, 445; WASHINGTON & GEORGETOWN R. CO. V.
MCDADE, 135 U.S. 554, 572.  TO WITHDRAW SUCH A QUESTION FROM THE JURY
IS TO USURP ITS FUNCTIONS."  BAILEY V. CENTRAL VERMONT R. CO., 319 U.S.
350, 353-354 (1943).  (FN2) 

AS TO THE MALPRACTICE CLAIM, THE TRIAL COURT HELD THAT THE RAILROAD
WOULD NOT BE LIABLE FOR ANY NEGLIGENCE ON THE PART OF DR. LEIGH, THE
PHYSICIAN IT FURNISHED PETITIONER.  WE NEED NOT PASS ON THIS ISSUE,
HOWEVER, SINCE WE FIND NO EVIDENCE SUFFICIENT TO SUPPORT A MALPRACTICE
RECOVERY.  PROOF OF MALPRACTICE, IN EFFECT, REQUIRES TWO EVIDENTIARY
STEPS: EVIDENCE AS TO THE RECOGNIZED STANDARD OF THE MEDICAL COMMUNITY
IN THE PARTICULAR KIND OF CASE, AND A SHOWING THAT THE PHYSICIAN IN
QUESTION NEGLIGENTLY DEPARTED FROM THIS STANDARD IN HIS TREATMENT OF
PLAINTIFF.  THE TRIAL JUDGE ACKNOWLEDGED THESE TO BE THE TESTS OF
MALPRACTICE AND ALLOWED PETITIONER'S COUNSEL TO MAKE AN OFFER OF PROOF,
ALTHOUGH RULING THAT THE RAILROAD WAS NOT RESPONSIBLE FOR DR. LEIGH'S
ACTIONS.  THE EVIDENCE SHOWS THAT THE PHYSICIAN WAS OF UNQUESTIONED
QUALIFICATION AND TREATED PETITIONER IN ACCORDANCE WITH HIS BEST
MEDICAL JUDGMENT AND LONG PRACTICE.  THE ONLY EVALUATION CONCERNING HIS
TREATMENT WAS THAT OF DR. THIEMEYER, ANOTHER PHYSICIAN WHO HAD TREATED
PETITIONER, WHO TESTIFIED THAT HE DID NOT "THINK THAT THE TREATMENT IS
PROPER."  DR. THIEMEYER'S OPINION WAS THAT "A FRACTURE SHOULD BE
IMMOBILIZED UNTIL IT IS HEALED SUFFICIENTLY TO BEAR WEIGHT WITHOUT
JEOPARDY OF ITS HEALING," AND THAT HE "WOULD SAY THAT ACTIVITY WOULD
AGGRAVATE THIS FRACTURE IN THAT PERIOD."  THIS OFFER OF PROOF WAS
FATALLY DEFICIENT.  NO FOUNDATION WAS LAID AS TO THE RECOGNIZED MEDICAL
STANDARD FOR THE TREATMENT OF SUCH A FRACTURE.  NO STANDARD HAVING BEEN
ESTABLISHED, IT FOLLOWS THAT THE OFFER OF PROOF WAS NOT SUFFICIENT. 
THE TRIAL JUDGE, THEREFORE, WAS CORRECT IN DECLINING TO SUBMIT THE
MALPRACTICE CLAIM TO THE JURY. 

IN VIEW OF OUR HOLDING ON THE FIRST CAUSE OF ACTION, THE JUDGMENT IS
REVERSED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  WHILE THE EVIDENCE INDICATES THAT THIS FACT IS UNDISPUTED, IF
THE EVIDENCE IS IN CONFLICT, SUCH AN ISSUE IS OF COURSE FOR THE JURY. 

FN2  SEE ALSO TENNANT V. PEORIA & P.U.R. CO., 321 U.S. 29, 35 (1944);
LAVENDER V. KURN, 327 U.S. 645, 653 (1946); ROGERS V. MISSOURI PACIFIC
R. CO., 352 U.S. 500 (1957). 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI WAS IMPROVIDENTLY GRANTED. 

MR. JUSTICE HARLAN, DISSENTING. 

FROM THE POINT OF VIEW OF THE FUNCTIONS OF THIS COURT, THIS DECISION
PROVIDES ANOTHER EXAMPLE OF THE FUTILITY OF CONTINUING TO BRING HERE
FOR REVIEW CASES OF THIS KIND.  SO LONG AS JURY VERDICTS REMAIN SUBJECT
TO SOME DEGREE OF JUDICIAL SUPERVISION, CF. HARRIS V. PENNSYLVANIA R.
CO., 361 U.S. 15, 27-28 (DISSENTING OPINION), WHETHER OR NOT THE
EVIDENCE IS SUFFICIENT TO WARRANT REMOVING A PARTICULAR CASE FROM
CONSIDERATION OF THE JURY IS A QUESTION WHICH WILL DOUBTLESS CONTINUE
TO DIVIDE EQUALLY CONSCIENTIOUS JUDGES IN ALL EXCEPT THE CLEAREST
INSTANCES.  AS TO THE ISSUE UPON WHICH THE JUDGMENT BELOW IS NOW
REVERSED,* A MAJORITY OF THE COURT DISAGREES WITH THE UNANIMOUS VIEW OF
THE RECORD TAKEN BY THE TWO STATE COURTS.  MY BROTHER WHITTAKER, IN
DISSENT, TAKES A DIFFERENT VIEW FROM THAT OF THE MAJORITY.  AND I, ALSO
IN DISSENT, TAKE STILL A DIFFERENT VIEW FROM EITHER APPROACH. 

*I AGREE WITH THE COURT AS TO THE OTHER ISSUE. 

AS I READ THE RECORD AND THE BRIEFS, PETITIONER'S THEORY WAS THAT
THIS ACCIDENT WOULD NOT HAVE HAPPENED HAD HE NOT BEEN FORCED TO WORK ON
TOP OF THE CARS, INSTEAD OF ON THE GROUND WHERE HE USUALLY WORKED, IN
CONSEQUENCE OF (1) THE COMPANY'S INSTRUCTIONS TO PERFORM THE CAR
SHIFTING OPERATION IN UNUSUALLY SHORT ORDER, AND (2) ITS FAILURE TO
SUPPLY HIM WITH EXPERIENCED HELPERS.  UNDER THE ROGERS "RULE OF
REASON," 352 U.S. 500, I SUPPOSE IT COULD BE SAID THAT THERE WAS AN
ISSUE FOR THE JURY ON BOTH SCORES, IN LIGHT OF THE NOT UNEQUIVOCAL
TESTIMONY OF THE PETITIONER, QUOTED IN MY BROTHER WHITTAKER'S OPINION,
AND THE OTHER MATTERS REFERRED TO IN THE COURT'S OPINION.  EVEN SO,
THIS MAKES OUT NO CASE FOR THE JURY, UNLESS THERE IS EVIDENCE THAT ONE
OR BOTH OF THESE FACTORS CONTRIBUTED TO INCREASE THE NORMAL HAZARDS OF
PETITIONER'S EMPLOYMENT.  I THINK THERE IS NO SUCH EVIDENCE. 

THE RECORD IS BARREN OF ANYTHING SHOWING WHY THIS ACCIDENT OCCURRED. 
THERE WAS NO EVIDENCE WHATEVER THAT EITHER THE CAR OR THE LADDER FROM
WHICH THE PETITIONER FEEL WAS FAULTY.  PETITIONER ADMITTED TO BEING AN
EXPERIENCED RAILROAD WORKER WHOSE DUTIES HAD AT TIMES CARRIED HIM UP
AND DOWN LADDERS, AND ON THE TOPS OF RAILROAD CARS.  AT THE TIME OF HIS
FALL THE CARS HAD STOPPED MOVING, OR NEARLY SO.  WHEN ASKED BY THE
TRIAL COURT TO EXPLAIN HOW HE HAPPENED TO FALL, ALL PETITIONER COULD
SAY WAS "IT MIGHT HAVE BEEN GREASE OR ANYTHING ON MY SHOE"; AND THIS
WAS PURE CONJECTURE, AS THE RECORD SHOWS.  MORE ESPECIALLY, PETITIONER
DID NOT SAY THAT HE FELL BECAUSE HE WAS "RUSHED." 

IN THESE CIRCUMSTANCES, TO HOLD THAT THE JURY MIGHT HAVE FOUND THAT
WHAT RESPONDENT DID CONTRIBUTED TO ENHANCE THE NORMAL HAZARDS OF
PETITIONER'S EMPLOYMENT IS, IN MY OPINION, TO SAY IN EFFECT THAT THE
JURY SHOULD HAVE BEEN ALLOWED TO SUBSTITUTE ATMOSPHERE FOR EVIDENCE AND
SPECULATION FOR REASON. 

ON THE BASIS OF THE CRITERIA GOVERNING OUR CERTIORARI JURISDICTION,
THIS CASE HAS NOT BEEN PROFITABLE BUSINESS FOR THIS COURT. 

I WOULD AFFIRM. 

MR. JUSTICE WHITTAKER, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE THAT THERE WAS NO EVIDENCE TO SUPPORT PETITIONER'S CONTENTION
THAT RESPONDENT IS LIABLE TO HIM UPON HIS CLAIM OF MALPRACTICE BY THE
TREATING PHYSICIAN.  BUT, WITH ALL DEFERENCE, I MUST DISAGREE THAT
THERE WAS ANY EVIDENCE OF NEGLIGENCE BY RESPONDENT THAT CAUSED OR
DIRECTLY CONTRIBUTED TO CAUSE PETITIONER'S INJURY.  I AM UNABLE TO FIND
IN THE RECORD ANY EVIDENCE OF ANY "DIRECTION" BY RESPONDENT TO
PETITIONER "TO COMPLETE THE SPOTTING OPERATION WITHIN 30 MINUTES."*
AND THE "SENIOR BRAKEMAN," WHOM THE COURT FINDS TO HAVE BEEN
"INEXPERIENCED," IS SHOWN BY HIS OWN UNDISPUTED TESTIMONY TO HAVE
PURSUED THAT OCCUPATION FOR MORE THAN A YEAR.  EVEN THE "JUNIOR
BRAKEMAN" IS SHOWN BY HIS UNDISPUTED TESTIMONY TO HAVE WORKED AT THAT
OCCUPATION FOR RESPONDENT FOR "ABOUT A YEAR."  MOREOVER, NO ACT -
EITHER OF COMMISSION OR OMISSION - OF THOSE BRAKEMEN IS SHOWN TO HAVE
IN ANY WAY CAUSED OR CONTRIBUTED TO CAUSE PETITIONER TO SLIP ON AND
FALL FROM THE LADDER OF THE STANDING OR VERY SLOWLY MOVING BOXCAR, AND
THAT IS WHAT CAUSED HIS INJURY.  NOR IS THERE ANY EVIDENCE, OR EVEN ANY
CLAIM, OF DEFECT IN THAT LADDER.  WHERE, THEN, IS THE EVIDENCE OF
RESPONDENT'S NEGLIGENCE AND OF CAUSATION THAT IS THOUGHT TO HAVE
PRESENTED AN ISSUE OF FACT FOR THE JURY?  PETITIONER HAS PRESSED UPON
US AN ASSIGNMENT THAT RESPONDENT FAILED TO PROVIDE HIM WITH A SAFE
PLACE TO WORK, IN THAT IT FAILED TO MAKE SMOOTH AND LEVEL THE RIGHT OF
WAY ADJOINING THE TRACK SO THAT, IF A TRAINMAN WERE TO SLIP AND FALL
FROM A CAR LADDER TO THE GROUND, HE WOULD LAND ON LEVEL GROUND AND BE
LESS LIKELY TO SUFFER INJURY.  IT IS EASY TO UNDERSTAND WHY THE COURT
MAKES NO MENTION OF THAT CLAIM, BUT, AS I SEE IT AND AS THE JUDGES OF
THE TWO STATE COURTS UNANIMOUSLY SAW IT, THE CLAIMS IT DOES MENTION ARE
EQUALLY WITHOUT SUBSTANCE. 

*BEARING ON THE MATTER OF THE TIME ALLOWED TO DO THIS SWITCHING WORK,
PETITIONER TESTIFIED ON DIRECT EXAMINATION AS FOLLOWS: 

"Q.  WHAT INSTRUCTIONS DID THE GENERAL YARDMASTER FOR THE VIRGINIAN
RAILWAY COMPANY GIVE TO YOU? 

"A.  MY INSTRUCTIONS WAS TO LINE UP THOSE CARS THERE FOR FORD MOTOR
COMPANY WHILE THEY ARE AT LUNCH. 

     *         *         *         *         * 

"Q.  DID YOU ASCERTAIN HOW LONG THAT LUNCH PERIOD LASTED AT THE FORD
PLANT? 

"A.  YES, SIR. 

"Q.  HOW LONG DID IT LAST? 

"A.  30 MINUTES." 

ON CROSS-EXAMINATION PETITIONER TESTIFIED: 

"Q.  HE (THE YARDMASTER) DID NOT TELL YOU THAT YOU HAD TO MEET THAT
SCHEDULE EVEN IF IT MEANT FOR YOU TO ABANDON SAFETY PRECAUTIONS, DID
HE?    "A.  NO, SIR. 

     *         *         *         *     * 

"Q.  IT IS ALWAYS YOUR JOB, NO MATTER WHAT YOU ARE DOING TO OBSERVE
SAFETY PRECAUTIONS FOR YOURSELF AND FOR YOUR MEN, IS IT NOT? 

"A.  YES, SIR. 

     *         * *         *         * 

"Q.  ...  AND IF YOU REACHED A POINT WHERE IT IS NECESSARY TO ABANDON
SAFETY IN ORDER TO DO A CERTAIN THING BY A CERTAIN TIME, YOU JUST HAVE
TO GO SLOWER, DON'T YOU?    "A.  YES, SIR. 

     *         *         *         *         * 

"Q.  YOU WERE THE TOP MAN FROM THE VIRGINIAN RAILWAY ON THAT JOB AT
THAT TIME? 

"A.  YES, SIR. 

"Q.  YOU HAD CHARGE? 

"A.  YES, SIR. 

"Q.  IT WAS UP TO YOU AS TO HOW FAST OR HOW SLOW THE JOB WAS CARRIED
OUT, WAS IT NOT? 

"A.  IT WAS UP TO ME TO SEE THE FORD PLANT WAS SET UP." 

CITING BAILEY V. CENTRAL VERMONT R. CO., 319 U.S. 350, 353, 354, THE
COURT QUOTES:  "TO WITHDRAW SUCH A QUESTION FROM THE JURY IS TO USURP
ITS FUNCTIONS."  IF BY THAT QUOTATION THE COURT MEANS THAT THE BAILEY
CASE INVOLVED "SUCH A QUESTION" AS WE HAVE HERE, I MUST RESPECTFULLY
DISAGREE.  FOR THE FACTS OF THAT CASE SEE 319 U.S., AT 351-352.  ON
THIS RECORD, I AM COMPELLED TO THINK THAT THE TRIAL COURT AND THE
VIRGINIA SUPREME COURT OF APPEALS WERE RIGHT IN HOLDING THAT PETITIONER
FAILED TO MAKE A SUBMISSIBLE CASE OF NEGLIGENCE AND CAUSATION, AND I
WOULD AFFIRM THE JUDGMENT. 
..END :
























LOCAL NO. 8-6, OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL
CIO V. MISSOURI 361 U.S. 363 


NO. 42.  ARGUED NOVEMBER 19, 1959 - DECIDED JANUARY 25, 1960 - 317
S.W.2D 309, JUDGMENT VACATED AND CAUSE REMANDED. 


PROCEEDING UNDER A MISSOURI STATUTE, THE GOVERNOR OF MISSOURI FOUND
THAT THE PUBLIC INTEREST, HEALTH AND WELFARE WERE JEOPARDIZED BY AN
EXISTING STRIKE AGAINST A PUBLIC UTILITY IN THE STATE AND ISSUED
EXECUTIVE ORDERS TAKING POSSESSION OF THE COMPANY AND DIRECTING THAT IT
CONTINUE OPERATIONS.  PURSUANT TO THE STATUTE, A STATE COURT ENJOINED
CONTINUATION OF THE STRIKE.  THE STRIKE WAS THEN TERMINATED; A NEW
LABOR AGREEMENT WAS ENTERED INTO BETWEEN THE UNIONS AND THE COMPANY;
AND THE GOVERNOR ENDED THE SEIZURE.  ON APPEAL FROM THE INJUNCTION
DECREE, THE SUPREME COURT OF MISSOURI NOTED THAT THE INJUNCTION HAD
"EXPIRED BY ITS OWN TERMS"; BUT IT PROCEEDED TO SUSTAIN THE
CONSTITUTIONALITY OF THOSE SECTIONS OF THE STATUTE AUTHORIZING THE
SEIZURE, FORBIDDING CONTINUATION OF A STRIKE AFTER SEIZURE, AND
AUTHORIZING THE STATE COURTS TO ENJOIN VIOLATIONS OF THE ACT.  ON
APPEAL TO THIS COURT, HELD:  SINCE THE INJUNCTION HAS LONG SINCE
EXPIRED BY ITS OWN TERMS, THE CAUSE HAS BECOME MOOT.  PP. 364-371. 

(A)  BECAUSE THE INJUNCTION HAS LONG SINCE "EXPIRED BY ITS OWN TERMS"
THERE REMAINS FOR THIS COURT NO ACTUAL MATTER IN CONTROVERSY ESSENTIAL
TO A DECISION OF THIS CASE.  HARRIS V. BATTLE, 348 U.S. 803.  PP. 367
369. 

(B)  LIFE IS NOT GIVEN TO THIS APPEAL BY THE FACT THAT THE STATUTE
CONTAINS PROVISIONS WHICH IMPOSE (1) MONETARY PENALTIES UPON LABOR
UNIONS WHICH CONTINUE A STRIKE AFTER SEIZURE, AND (2) LOSS OF SENIORITY
FOR EMPLOYEES PARTICIPATING IN SUCH A STRIKE; SINCE THE SUPREME COURT
OF MISSOURI FOUND THAT THOSE SEPARABLE PROVISIONS OF THE ACT WERE NOT
INVOLVED IN THIS CASE, IT CAREFULLY REFRAINED FROM PASSING ON THEIR
VALIDITY, AND THEY ARE NOT PROPERLY BEFORE THIS COURT IN THIS CASE. 
PP. 369-371. 

LOCAL NO. 8-6, OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL
CIO, ET AL. V. MISSOURI. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF MISSOURI
AFFIRMING A DECREE WHICH ENJOINED THE APPELLANTS FROM CONTINUING A
STRIKE AGAINST A ST. LOUIS PUBLIC UTILITY.  THE JUDGMENT UPHELD THE
CONSTITUTIONALITY OF CERTAIN PROVISIONS OF A MISSOURI LAW, COMMONLY
KNOWN AS KING-THOMPSON ACT, WHICH AUTHORIZES THE GOVERNOR ON BEHALF OF
THE STATE TO TAKE POSSESSION OF AND OPERATE A PUBLIC UTILITY AFFECTED
BY A WORK STOPPAGE WHEN IN HIS OPINION "THE PUBLIC INTEREST, HEALTH AND
WELFARE ARE JEOPARDIZED," AND "THE EXERCISE OF SUCH AUTHORITY IS
NECESSARY TO INSURE THE OPERATION OF SUCH PUBLIC UTILITY."  (FN1) 

IN THE STATE COURTS AND IN THIS COURT THE APPELLANTS HAVE CONTENDED
THAT THE MISSOURI LAW CONFLICTS WITH FEDERAL LEGISLATION ENACTED UNDER
THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION, AND THAT IT VIOLATES
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  BECAUSE OF DOUBT
AS TO WHETHER THE CONTROVERSY WAS MOOT, WE POSTPONED FURTHER
CONSIDERATION OF THE QUESTION OF JURISDICTION TO THE HEARING OF THE
CASE ON THE MERITS.  359 U.S. 982. 

THE APPELLANTS ARE LABOR UNIONS WHICH REPRESENT EMPLOYEES OF THE
LACLEDE GAS COMPANY, A CORPORATION ENGAGED IN THE BUSINESS OF SELLING
NATURAL GAS IN THE ST. LOUIS AREA.  IN THE SPRING OF 1956 THE
APPELLANTS NOTIFIED LACLEDE OF THEIR DESIRE TO NEGOTIATE CHANGES IN THE
TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WHICH WAS TO EXPIRE IN
THAT YEAR.  EXTENDED NEGOTIATIONS WERE CONDUCTED, BUT NO NEW AGREEMENT
WAS REACHED, AND UPON EXPIRATION OF THE EXISTING CONTRACT ON JUNE 30,
1956, THE EMPLOYEES WENT OUT ON STRIKE.  (FN2) 

FIVE DAYS LATER THE GOVERNOR OF MISSOURI ISSUED A PROCLAMATION
STATING THAT AFTER INVESTIGATION HE BELIEVED THAT THE PUBLIC INTEREST,
HEALTH, AND WELFARE WERE IN JEOPARDY, AND THAT SEIZURE UNDER AUTHORITY
OF THE STATE LAW WAS NECESSARY TO INSURE THE COMPANY'S CONTINUED
OPERATION.  IN AN EXECUTIVE ORDER ISSUED ON THE SAME DAY THE GOVERNOR
TOOK "POSSESSION" OR LACLEDE "FOR THE USE AND OPERATION BY THE STATE OF
MISSOURI IN THE PUBLIC INTEREST."  A SECOND EXECUTIVE ORDER PROVIDED
THAT ALL THE "RULES AND REGULATIONS  ...  GOVERNING THE INTERNAL
MANAGEMENT AND ORGANIZATION OF THE COMPANY, AND ITS DUTIES AND
RESPONSIBILITIES, SHALL REMAIN IN FORCE AND EFFECT THROUGHOUT THE TERM
OF OPERATION BY THE STATE OF MISSOURI." 

AFTER THE SEIZURE THE APPELLANTS CONTINUED THE STRIKE IN VIOLATION OF
THE STATUTE, (FN3) AND THE STATE OF MISSOURI FILED SUIT FOR AN
INJUNCTION AGAINST THEM IN THE CIRCUIT COURT OF ST. LOUIS.  (FN4)  AT
THE END OF A THREE-DAY HEARING THE TRIAL COURT ENTERED AN ORDER
ENJOINING THE APPELLANTS FROM CONTINUING THE STRIKE, AND IN AN
AMENDMENT TO THE DECREE DECLARED THE ENTIRE KING-THOMPSON ACT
CONSTITUTIONAL AND VALID.  ON JULY 14, 1956, THE DAY AFTER THE
INJUNCTION ISSUED, THE STRIKE WAS TERMINATED.  ON AUGUST 10, 1956, THE
APPELLANTS AND LACLEDE SIGNED A NEW LABOR AGREEMENT, AND ON OCTOBER 31,
1956, THE GOVERNOR ENDED THE SEIZURE. 

ON APPEAL THE SUPREME COURT OF MISSOURI, ALTHOUGH NOTING THAT THE
INJUNCTION HAD "EXPIRED BY ITS OWN TERMS," NEVERTHELESS PROCEEDED TO
CONSIDER THE MERITS OF CERTAIN OF THE APPELLANTS' CONTENTIONS.   THE
COURT RESTRICTED ITS CONSIDERATION, HOWEVER, TO THOSE SECTIONS OF THE
KING-THOMPSON ACT "DIRECTLY INVOLVED" - "SECTION 295.180, RELATING TO
THE POWER OF SEIZURE, AND SUBPARAGRAPHS (1) AND (6) OF SECTION 295.200
RSMO, V.A.M.S., MAKING UNLAWFUL A STRIKE OR CONCERTED REFUSAL TO WORK
AFTER SEIZURE AND GIVING THE STATE COURTS POWER TO ENFORCE THE
PROVISIONS OF THE ACT BY INJUNCTION OR OTHER MEANS."  (FN5)  317
S.W.2D, AT 316.  IN UPHOLDING THE CONSTITUTIONALITY OF THESE SECTIONS
OF THE ACT, THE COURT EXPLICITLY DECLINED TO PASS ON OTHER PROVISIONS
WHICH THE APPELLANTS SOUGHT TO ATTACK, STATING: "THE SECTIONS WHICH WE
HAVE CONSIDERED ARE SEVERABLE FROM AND MAY STAND INDEPENDENTLY OF THE
REMAINDER OF THE ACT.  ALTHOUGH THE DEFENDANTS ARGUE STRENUOUSLY TO THE
CONTRARY, NO CASE IS MADE IN THIS RECORD FOR DETERMINATION OF THE
CONSTITUTIONALITY OF SECTION 295.090, PERTAINING TO A WRITTEN LABOR
AGREEMENT OF A MINIMUM DURATION AND SECTION 295.200, SUBPARAGRAPHS 2,
3, 4 AND 5, RELATING TO MONETARY PENALTIES AND LOSS OF SENIORITY.  WE,
THEREFORE, REFRAIN FROM EXPRESSING ANY OPINION WITH REFERENCE
THERETO."  317 S.W.2D, AT 323.  ACCORDINGLY, THE COURT "LIMITED AND
MODIFIED" THE JUDGMENT OF THE TRIAL COURT SO AS TO REMOVE ALL POSSIBLE
INTIMATION THAT ANY PROVISIONS OF THE ACT HAD BEEN HELD CONSTITUTIONAL,
OTHER THAN THOSE NECESSARILY UPHELD IN SUSTAINING THE VALIDITY OF THE
INJUNCTION.  (FN6) 

BECAUSE THAT INJUNCTION HAS LONG SINCE "EXPIRED BY ITS OWN TERMS," WE
CANNOT ESCAPE THE CONCLUSION THAT THERE REMAIN FOR THIS COURT NO
"ACTUAL MATTERS IN CONTROVERSY ESSENTIAL TO THE DECISION OF THE
PARTICULAR CASE BEFORE IT."  UNITED STATES V. ALASKA S.S. CO., 253 U.S.
113, 116.  WHATEVER THE PRACTICE IN THE COURTS OF MISSOURI, THE DUTY OF
THIS COURT "IS TO DECIDE ACTUAL CONTROVERSIES BY A JUDGMENT WHICH CAN
BE CARRIED INTO EFFECT, AND NOT TO GIVE OPINIONS UPON MOOT QUESTIONS OR
ABSTRACT PROPOSITIONS, OR TO DECLARE PRINCIPLES OR RULES OF LAW WHICH
CANNOT AFFECT THE MATTER IN ISSUE IN THE CASE BEFORE IT."  MILLS V.
GREEN, 159 U.S. 651, 653.  SEE BUS EMPLOYEES V. WISCONSIN BOARD, 340
U.S. 416.  TO EXPRESS AN OPINION UPON THE MERITS OF THE APPELLANTS'
CONTENTIONS WOULD BE TO IGNORE THIS BASIC LIMITATION UPON THE DUTY AND
FUNCTION OF THE COURT, AND TO DISREGARD PRINCIPLES OF JUDICIAL
ADMINISTRATION LONG ESTABLISHED AND REPEATEDLY FOLLOWED.  (FN7) 

IN HARRIS V. BATTLE, 348 U.S. 803, THESE PRINCIPLES WERE GIVEN
CONCRETE APPLICATION IN A CONTEXT SO PARA LEL AS EXPLICITLY TO CONTROL
DISPOSITION OF THE PRIMARY ISSUE HERE.  THAT CASE ORIGINATED AS AN
ACTION TO ENJOIN THE ENFORCEMENT OF A VIRGINIA STATUTE, MARKEDLY
SIMILAR TO THE KING-THOMPSON ACT, UNDER WHICH THE GOVERNOR HAD ORDERED
THAT "POSSESSION" BE TAKEN OF A TRANSIT COMPANY WHOSE EMPLOYEES WERE ON
STRIKE.  ALTHOUGH THE LABOR DISPUTE WAS SUBSEQUENTLY SETTLED AND THE
SEIZURE TERMINATED, THE TRIAL COURT NEVERTHELESS PROCEEDED TO DECIDE
THE MERITS OF THE CASE, HOLDING THAT THE SEIZURE WAS CONSTITUTIONAL. 
HARRIS V. BATTLE, 32 L.R.R.M. 83.  THE VIRGINIA SUPREME COURT REFUSED
AN APPEAL.  HARRIS V. BATTLE, 195 VA.  LXXXVIII.  IN THIS COURT IT WAS
URGED THAT THE CONTROVERSY WAS NOT MOOT BECAUSE OF THE CONTINUING
THREAT OF STATE SEIZURE IN FUTURE LABOR DISPUTES.   (FN8)  IT WAS
ARGUED THAT THE STATE'S ABANDONMENT OF ALLEGED UNCONSTITUTIONAL
ACTIVITY AFTER ITS OBJECTIVE HAD BEEN ACCOMPLISHED SHOULD NOT BE
PERMITTED TO FORESTALL DECISION AS TO THE VALIDITY OF THE STATUTE UNDER
WHICH THE STATE HAD PURPORTED TO ACT.  (FN9)  IT WAS CONTENDED THAT THE
SITUATION WAS AKIN TO CASES LIKE SOUTHERN PAC. TERMINAL CO. V.
INTERSTATE COMMERCE COMM'N, 219 U.S. 498, 514-516.  (FN10)  IN FINDING
THAT THE CONTROVERSY WAS MOOT, THE COURT NECESSARILY REJECTED ALL THESE
CONTENTIONS.  348 U.S. 803.  UPON THE AUTHORITY OF THAT DECISION THE
SAME CONTENTIONS MUST BE REJECTED IN THE PRESENT CASE.  SEE ALSO BARKER
CO. V. PAINTERS UNION, 281 U.S. 462; COMMERCIAL CABLE CO. V. BURLESON,
250 U.S. 360. 

HOWEVER, AS THE APPELLANTS POINT OUT, THE DECISION IN HARRIS V.
BATTLE IS NOT COMPLETELY DISPOSITIVE HERE BECAUSE, UNLIKE THE VIRGINIA
STATUTE, THE KING-THOMPSON ACT CONTAINS PROVISIONS WHICH IMPOSE:  (1)
MONETARY PENALTIES UPON LABOR UNIONS WHICH CONTINUE A STRIKE AFTER
SEIZURE; (FN11) AND (2) LOSS OF SENIORITY FOR EMPLOYEES PARTICIPATING
IN SUCH A STRIKE.  (FN12)  THE MISSOURI COURT FOUND THAT THESE
SEPARABLE PROVISIONS OF THE ACT WERE NOT INVOLVED IN THE PRESENT CASE,
AND IT CAREFULLY REFRAINED FROM PASSING ON THEIR VALIDITY.  (FN13)  THE
COURT NOTED THAT LIABILITY FOR MONETARY PENALTIES HAD BEEN ASSERTED IN
A SEPARATE LAWSUIT, 317 S.W.2D, AT 314, AND THE PARTIES HAVE INFORMED
US THAT THE ACTION IS STILL PENDING IN THE STATE COURTS. 

WE CANNOT AGREE THAT THE PENDENCY OF THAT LITIGATION GIVES LIFE TO
THE PRESENT APPEAL.  WHEN THAT CLAIM IS LITIGATED IT WILL BE SUBJECT TO
REVIEW, BUT IT IS NOT FOR US NOW TO ANTICIPATE ITS OUTCOME. 
"'CONSTITUTIONAL QUESTIONS ARE NOT TO BE DEALT WITH ABSTRACTLY'  ...  .
THEY WILL NOT BE ANTICIPATED BUT WILL BE DEALT WITH ONLY AS THEY ARE
APPROPRIATELY RAISED UPON A RECORD BEFORE US ...  .  NOR WILL WE ASSUME
IN ADVANCE THAT A STATE WILL SO CONSTRUE ITS LAW AS TO BRING IT INTO
CONFLICT WITH THE FEDERAL CONSTITUTION OR AN ACT OF CONGRESS."  ALLEN
BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740, AT 746. 

THE GUIDING PRINCIPLE IS WELL ILLUSTRATED IN AMERICAN BOOK CO. V.
KANSAS, 193 U.S. 49.  THERE THE KANSAS SUPREME COURT HAD OUSTED THE
APPELLANT FROM DOING BUSINESS IN THE STATE UNTIL IT COMPLIED WITH
PROVISIONS OF THE LOCAL LAW GOVERNING FOREIGN CORPORATIONS.  PENDING
APPEAL THE APPELLANT SATISFIED THE JUDGMENT BY COMPLYING WITH THE
REQUIREMENTS OF THE STATUTE.  BUT MEANWHILE THE STATE HAD BROUGHT
ANOTHER ACTION AGAINST THE APPELLANT TO VOID CONTRACTS IT HAD MADE
PRIOR TO THE DATE OF ITS COMPLIANCE.  BECAUSE OF THIS PENDING
LITIGATION THE APPELLANT ARGUED THAT "'THERE STILL EXISTS A
CONTROVERSY, UNDETERMINED AND UNSETTLED,' INVOLVING THE RIGHT OF THE
STATE TO ENFORCE THE STATUTE AGAINST A CORPORATION ENGAGED IN
INTERSTATE COMMERCE."  193 U.S., AT 51.  WHAT THE COURT SAID IN
REJECTING THAT ARGUMENT AND DISMISSING THE APPEAL AS MOOT IS ENTIRELY
RELEVANT HERE.  "THAT SUIT IS NOT BEFORE US.  WE HAVE NOT NOW
JURISDICTION OF IT OR ITS ISSUES.  OUR POWER ONLY EXTENDS OVER AND IS
LIMITED BY THE CONDITIONS OF THE CASE NOW BEFORE US."  193 U.S., AT
52.  SEE ALEJANDRINO V. QUEZON, 271 U.S. 528. 

THE ASSERTED THREAT TO THE SENIORITY RIGHTS OF LACLEDE EMPLOYEES IS
EVEN MORE SPECULATIVE.  ALMOST FOUR YEARS HAVE PASSED SINCE THE STRIKE,
AND THE APPELLANTS CONCEDE THAT NO ACTION HAS BEEN TAKEN TO DEPRIVE ANY
EMPLOYEES OF THEIR SENIORITY.  MOREOVER, THE SECTION OF THE ACT WHICH
RELATES TO SENIORITY RIGHTS IMPOSES NO LEGAL SANCTIONS ON THE EMPLOYEES
OR THEIR UNIONS, BUT MAKES UNLAWFUL ONLY THE ACTION OF THE UTILITY
COMPANY WHICH REHIRES THE EMPLOYEES WITHOUT LOSS OF SENIORITY.  (FN14)
IN THE UNLIKELY EVENT THAT A LEGAL PROCEEDING SHOULD NOW BE BROUGHT
AGAINST LACLEDE FOR HAVING DONE SO, THERE IS NO WAY TO KNOW WHAT THE
OUTCOME OF SUCH A PROCEEDING IN THE MISSOURI COURTS MIGHT BE.  (FN15) 

THE DECISION WE ARE ASKED TO REVIEW UPHELD ONLY THE VALIDITY OF AN
INJUNCTION, AN INJUNCTION THAT EXPIRED BY ITS OWN TERMS MORE THAN THREE
YEARS AGO.  ANY JUDGMENT OF OURS AT THIS LATE DATE "WOULD BE WHOLLY
INEFFECTUAL FOR WANT OF A SUBJECT MATTER ON WHICH IT COULD OPERATE.  AN
AFFIRMANCE WOULD OSTENSIBLY REQUIRE SOMETHING TO BE DONE WHICH HAD
ALREADY TAKEN PLACE.  A REVERSAL WOULD OSTENSIBLY AVOID AN EVENT WHICH
HAD ALREADY PASSED BEYOND RECALL.  ONE WOULD BE AS VAIN AS THE OTHER. 
TO ADJUDICATE A CAUSE WHICH NO LONGER EXISTS IS A PROCEEDING WHICH THIS
COURT UNIFORMLY HAS DECLINED TO ENTERTAIN."  BROWNLOW V. SCHWARTZ, 261
U.S. 216, 217-218. 

THE JUDGMENT OF THE SUPREME COURT OF MISSOURI IS VACATED, AND THE
CAUSE IS REMANDED FOR SUCH PROCEEDINGS AS BY THAT COURT MAY BE DEEMED
APPROPRIATE.  VACATED AND REMANDED. 

FN1  THE KING-THOMPSON ACT IS CHAPTER 295 OF THE REVISED STATUTES OF
MISSOURI, 1949.  THE SECTION OF THE STATUTE WHICH AUTHORIZES SEIZURE BY
THE GOVERNOR ON BEHALF OF THE STATE IS MO. REV. STAT., 1949, SEC.
295.180. 

FN2  ALL EMPLOYEES REPRESENTED BY THE APPELLANTS, APPROXIMATELY
2,200, PARTICIPATED IN THE STRIKE; APPROXIMATELY 300 SUPERVISORS AND
OTHERS NOT IN THE BARGAINING UNITS REPRESENTED BY THE APPELLANTS
REMAINED AT WORK. 

FN3  MISSOURI REV. STAT., 1949, SEC. 295.200, PAR. 1, PROVIDES: "IT
SHALL BE UNLAWFUL FOR ANY PERSON, EMPLOYEE, OR REPRESENTATIVE AS
DEFINED IN THIS CHAPTER TO CALL, INCITE, SUPPORT OR PARTICIPATE IN ANY
STRIKE OR CONCERTED REFUSAL TO WORK FOR ANY UTILITY OR FOR THE STATE
AFTER ANY PLANT, EQUIPMENT OR FACILITY HAS BEEN TAKEN OVER BY THE STATE
UNDER THIS CHAPTER, AS MEANS OF ENFORCING ANY DEMANDS AGAINST THE
UTILITY OR AGAINST THE STATE." 

FN4  MISSOURI REV. STAT., 1949, SEC. 295.200, PAR. 6, PROVIDES:  "THE
COURTS OF THIS STATE SHALL HAVE POWER TO ENFORCE BY INJUNCTION OR OTHER
LEGAL OR EQUITABLE REMEDIES ANY PROVISION OF THIS CHAPTER OR ANY RULE
OR REGULATION PRESCRIBED BY THE GOVERNOR HEREUNDER." 

FN5  SEE NOTES 1, 3 AND 4, SUPRA. 

FN6  THE COURT DID REAFFIRM AN EARLIER DECISION (STATE EX REL. STATE
BOARD OF MEDIATION V. PIGG, 362 MO. 798, 244 S.W.2D 75) UPHOLDING THE
CONSTITUTIONALITY OF PROVISIONS OF THE KING-THOMPSON ACT RELATING TO
THE STATE BOARD OF MEDIATION AND PUBLIC HEARING PANELS, "TO THE EXTENT
THAT THOSE SECTIONS ARE A NECESSARY PREDICATE FOR THE ADDITIONAL
315. 

FN7  SEE, E.G., SINGER MFG. CO. V. WRIGHT, 141 U.S. 696; CALIFORNIA
V. SAN PABLO & TULARE R. CO., 149 U.S. 308; MILLS V. GREEN, 159 U.S.
651; AMERICAN BOOK CO. V. KANSAS, 193 U.S. 49; UNITED STATES V. HAMBURG
AMERICAN CO., 239 U.S. 466; COMMERCIAL CABLE CO. V. BURLESON, 250 U.S.
360; UNITED STATES V. ALASKA S.S. CO., 253 U.S. 113; BROWNLOW V.
SCHWARTZ, 261 U.S. 216; ALEJANDRINO V. QUEZON, 271 U.S. 528; BARKER CO.
V. PAINTERS UNION, 281 U.S. 462.    FN8  SEE JURISDICTIONAL STATEMENT
IN HARRIS V. BATTLE, NO. 111, O.T. 1954, PP. 12-13. 

FN9  IBID. 

FN10  IBID. 

FN11  MISSOURI REV. STAT., 1949, SEC. 295.200, PAR. 3, PROVIDES: "ANY
LABOR ORGANIZATION OR LABOR UNION WHICH VIOLATES PARAGRAPH 1 OF THIS
THE PUBLIC SCHOOL FUND OF THE STATE, THE SUM OF TEN THOUSAND DOLLARS
FOR EACH DAY ANY WORK STOPPAGE RESULTING FROM ANY STRIKE WHICH IT HAS
CALLED, INCITED, OR SUPPORTED, CONTINUES, TO BE RECOVERED BY CIVIL
ACTION IN THE NAME OF THE STATE AND AGAINST THE LABOR ORGANIZATION OR
LABOR UNION IN ITS COMMONLY USED NAME." 

FN12  MISSOURI REV. STAT., 1949, SEC. 295.200, PAR. 2, PROVIDES:  "IT
SHALL BE UNLAWFUL FOR ANY PUBLIC UTILITY TO EMPLOY ANY PERSON OR
EMPLOYEE WHO HAS VIOLATED PARAGRAPH 1 OF THIS SECTION EXCEPT THAT SUCH
PERSON OR EMPLOYEE MAY BE EMPLOYED ONLY AS A NEW EMPLOYEE." 

FN13  SEE PP. 366-367, SUPRA.  SINCE NEITHER THE STATUTORY PENALTIES
NOR POSSIBLE LOSS OF SENIORITY TURNS ON THE VALIDITY OF THE INJUNCTION,
THIS CASE IS QUITE UNLIKE BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S.
383, WHERE THE VERY JUDGMENT IN CONTROVERSY IMPOSED FINANCIAL
LIABILITY.  NOR DID THIS CASE INVOLVE A "PERPETUAL" INJUNCTION.  SEE
BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S. 416, N., AT 417-418. 

FN14  SEE NOTE 12, SUPRA. 

FN15  THE APPELLEE ASSERTS AND THE APPELLANTS DO NOT DENY THAT THE
STATUTE IMPOSES NO PENALTY FOR VIOLATION OF THE SENIORITY PROVISIONS. 

MR. JUSTICE BLACK, WHOM THE CHIEF JUSTICE AND MR. JUSTICE BRENNAN
JOIN, DISSENTING. 

WE THINK THIS CONTROVERSY IS NOT MOOT.  AS THE COURT'S OPINION POINTS
OUT, THE APPELLANT UNIONS MAY STILL BE HELD LIABLE FOR MONETARY
PENALTIES AND THEIR MEMBERS MAY LOSE SENIORITY BECAUSE OF THE STRIKE
THE MISSOURI SUPREME COURT HELD ILLEGAL UNDER STATE LAW.  ITS HOLDING
WAS MADE LONG AFTER THE STRIKE HAD ENDED.  IT WAS MOOT THEN IF IT IS
MOOT NOW.  BUT THE STATE COURT TREATED IT AS A LIVE CONTROVERSY, AND SO
SHOULD WE.  OTHERWISE, THE APPELLANT UNIONS AND THEIR MEMBERS STAND
CONSTANTLY UNDER THREATS OF PENALTIES AND CONTINUING INJUNCTIONS UNDER
THE STATE STATUTE THE MISSOURI SUPREME COURT HELD VALIDLY APPLIED IN
THIS CASE. 

THE WRONGFULNESS IN HOLDING THE CASE MOOT IS EMPHASIZED BY OUR BELIEF
THAT THE STATE COURT WAS PLAINLY WITHOUT ANY JURISDICTION OVER THIS
CONTROVERSY UNLESS THE COURT WANTS TO OVERRULE BUS EMPLOYEES V.
WISCONSIN BOARD, 340 U.S. 383, AND ADOPT THE VIEWS OF THE THREE
DISSENTERS IN THAT CASE.  WE WOULD FOLLOW THAT HOLDING AND REVERSE THIS
CASE ON THE MERITS. 
..END :





















SUPERIOR COURT OF WASHINGTON FOR KING COUNTY V. WASHINGTON, YELLOW CAB
SERVICE, INC. 361 U.S. 373 


NO. 76.  ARGUED JANUARY 20, 1960 - DECIDED JANUARY 25, 1960 - 53 WASH.
2D 644, 333 P.2D 924, REVERSED. 


SUPERIOR COURT OF WASHINGTON FOR KING COUNTY ET AL. V. WASHINGTON EX
REL. YELLOW CAB SERVICE, INC. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  SAN DIEGO BUILDING TRADES COUNCIL V.
GARMON, 359 U.S. 236. 
..END :















GAIR V. PECK 361 U.S. 374 


NO. 544.  DECIDED JANUARY 25, 1960 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  6 N.Y.2D 97, 160 N.E.2D 43. 


GAIR ET AL. V. PECK ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW YORK, NEW YORK COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















TAYLOR V. TAYLOR 361 U.S. 374 


NO. 552.  DECIDED JANUARY 25, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  185 KAN. 324, 342 P.2D
190. 


TAYLOR V. TAYLOR. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















UNITED STATES, PORET V. SIGLER 361 U.S. 375 


NO. 307, MISC.  DECIDED JANUARY 25, 1960 - REPORTED BELOW:  267 F.2D
307. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO THE
DISTRICT COURT FOR DISPOSITION OF QUESTION RESPECTING RACIAL
DISCRIMINATION IN SELECTION OF PETIT JURY PANELS. 

UNITED STATES EX REL. PORET ET AL. V. SIGLER, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED TO THE DISTRICT COURT FOR DISPOSITION OF THE QUESTION
WHETHER MEMBERS OF PETITIONERS' RACE WERE DELIBERATELY AND
INTENTIONALLY LIMITED AND EXCLUDED IN THE SELECTION OF PETIT JURY
PANELS, IN VIOLATION OF THE FEDERAL CONSTITUTION. 
..END :







KINSELLA V. SINGLETON 361 U.S. 234 


NO. 22.  ARGUED OCTOBER 22, 1959 - DECIDED JANUARY 18, 1960 - 164 F.
SUPP. 707, AFFIRMED. 


ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE, PROVIDING FOR
THE TRIAL BY COURT-MARTIAL OF "ALL PERSONS  ...  ACCOMPANYING THE ARMED
FORCES" OF THE UNITED STATES IN FOREIGN COUNTRIES, CANNOT
CONSTITUTIONALLY BE APPLIED IN PEACETIME TO THE TRIAL OF A CIVILIAN
DEPENDENT ACCOMPANYING A MEMBER OF THE ARMED FORCES OVERSEAS AND
CHARGED WITH HAVING COMMITTED A NONCAPITAL OFFENSE THERE.  REID V.
COVERT, 354 U.S. 1.  PP. 235-249. 

(A)  IN PROVIDING FOR TRIALS BY COURTS-MARTIAL, CONGRESS WAS
EXERCISING THE POWER GRANTED BY ART. I, SEC. 8, CL. 14 OF THE
CONSTITUTION TO "MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE
LAND AND NAVAL FORCES," AND THE TEST FOR COURT-MARTIAL JURISDICTION IS
ONE OF STATUS - I.E., WHETHER THE ACCUSED IS A PERSON WHO CAN BE
REGARDED AS FALLING WITHIN THE TERM "LAND AND NAVAL FORCES."  TOTH V.
QUARLES, 350 U.S. 11; REID V. COVERT, 354 U.S. 1.  PP. 236-241. 

(B)  UNDER ART. I, SEC. 8, CL. 14, NO CONSTITUTIONAL DISTINCTION CAN
BE DRAWN BETWEEN CAPITAL AND NONCAPITAL OFFENSES; IF A CIVILIAN CANNOT
BE TRIED BY COURT-MARTIAL IN PEACETIME FOR A CAPITAL OFFENSE, HE CANNOT
BE TRIED BY COURT-MARTIAL IN PEACETIME FOR A NONCAPITAL OFFENSE.  PP.
241-248. 

(C)  THE NECESSARY AND PROPER CLAUSE, ART. I, SEC. 8, CL. 18, DOES
NOT ENABLE CONGRESS TO BROADEN THE TERM "LAND AND NAVAL FORCES" IN
CLAUSE 14 TO INCLUDE CIVILIAN DEPENDENTS ACCOMPANYING MEMBERS OF THE
ARMED FORCES OVERSEAS, EVEN IN PROVIDING FOR TRIALS FOR NONCAPITAL
OFFENSES.  PP. 247-248. 

(D)  THE DEPENDENT WIFE OF A SOLDIER HERE INVOLVED WAS ENTITLED TO
THE SAFEGUARDS OF ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS OF THE
CONSTITUTION, AND HER CONVICTION BY COURT-MARTIAL WAS NOT
CONSTITUTIONALLY PERMISSIBLE.  P. 249. 

KINSELLA, WARDEN, V. UNITED STATES EX REL. SINGLETON. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF WEST VIRGINIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS DIRECT APPEAL TESTS THE CONSTITUTIONAL VALIDITY OF PEACETIME
COURT-MARTIAL TRIALS OF CIVILIAN PERSONS "ACCOMPANYING THE ARMED FORCES
OUTSIDE THE UNITED STATES" (FN1) AND CHARGED WITH NONCAPITAL OFFENSES
UNDER THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. SEC. 802, 70A
STAT. 37.  APPELLEE CONTENDS THAT THE DEPENDENT WIFE OF A SOLDIER CAN
BE TRIED ONLY IN A COURT THAT AFFORDS HER THE SAFEGUARDS OF ARTICLE III
AND OF THE FIFTH AND SIXTH AMENDMENTS OF THE CONSTITUTION.  THE TRIAL
COURT HELD ARTICLE 2(11) OF THE CODE UNCONSTITUTIONAL AS APPLIED TO
CIVILIAN DEPENDENTS ACCOMPANYING THE ARMED FORCES OVERSEAS AND CHARGED
WITH NONCAPITAL OFFENSES, 164 F. SUPP. 707, AND THE GOVERNMENT
APPEALED.  WE NOTED PROBABLE JURISDICTION AND PERMITTED APPELLEE TO
PROCEED IN FORMA PAUPERIS.  359 U.S. 903. 

THE APPELLEE IS THE MOTHER OF MRS. JOANNA S. DIAL, THE WIFE OF A
SOLDIER WHO WAS ASSIGNED TO A TANK BATTALION OF THE UNITED STATES
ARMY.  THE DIALS AND THEIR THREE CHILDREN LIVED IN GOVERNMENT HOUSING
QUARTERS AT BAUMHOLDER, GERMANY.  IN CONSEQUENCE OF THE DEATH OF ONE OF
THEIR CHILDREN, BOTH OF THE DIALS WERE CHARGED WITH UNPREMEDITATED
MURDER, UNDER ARTICLE 118(2) OF THE UNIFORM CODE OF MILITARY JUSTICE. 
UPON THE DIALS' OFFER TO PLEAD GUILTY TO INVOLUNTARY MANSLAUGHTER UNDER
ARTICLE 119 OF THE CODE, BOTH CHARGES WERE WITHDRAWN AND NEW ONES
CHARGING THEM SEPARATELY WITH THE LESSER OFFENSE WERE RETURNED.  THEY
WERE THEN TRIED TOGETHER BEFORE A GENERAL COURT-MARTIAL AT BAUMHOLDER. 
MRS. DIAL CHALLENGED THE JURISDICTION OF THE COURT-MARTIAL OVER HER
BUT, UPON DENIAL OF HER MOTION, PLEADED GUILTY, AS DID HER HUSBAND. 
EACH WAS SENTENCED TO THE MAXIMUM PENALTY PERMITTED UNDER THE CODE. 
THEIR CONVICTIONS WERE UPHELD BY THE COURT OF MILITARY APPEALS, AND
MRS. DIAL WAS RETURNED TO THE UNITED STATES AND PLACED IN THE FEDERAL
REFORMATORY FOR WOMEN AT ALDERSON, WEST VIRGINIA.  THEREAFTER THE
APPELLEE FILED THIS PETITION FOR HABEAS CORPUS AND OBTAINED MRS. DIAL'S
DISCHARGE FROM CUSTODY.  FROM THIS JUDGMENT THE WARDEN HAS APPEALED. 

AS HAS BEEN NOTED, THE JURISDICTION OF THE COURT-MARTIAL WAS BASED
UPON THE PROVISIONS OF ARTICLE 2(11) OF THE CODE.  THE CONGRESS ENACTED
THAT ARTICLE IN AN EFFORT TO EXTEND, FOR DISCIPLINARY REASONS, THE
COVERAGE OF THE UNIFORM CODE OF MILITARY JUSTICE TO THE CLASSES OF
PERSONS THEREIN ENUMERATED.  THE JURISDICTION OF THE CODE ONLY
ATTACHED, HOWEVER, WHEN AND IF ITS APPLICABILITY IN A GIVEN FOREIGN
TERRITORY WAS SANCTIONED UNDER "ANY TREATY OR AGREEMENT TO WHICH THE
UNITED STATES IS OR MAY BE A PARTY" WITH THE FOREIGN SOVEREIGNTY, OR
UNDER "ANY ACCEPTED RULE OF INTERNATIONAL LAW."  THE EXISTENCE OF SUCH
AN AGREEMENT HERE IS ADMITTED.  THE CONSTITUTIONALITY OF ARTICLE 2(11),
AS IT APPLIES IN TIME OF PEACE TO CIVILIAN DEPENDENTS CHARGED WITH
NONCAPITAL OFFENSES UNDER THE CODE, IS THE SOLE ISSUE TO BE DECIDED. 

THE QUESTION IS NOT ONE OF FIRST IMPRESSION, AS WE HAD BEFORE US IN
1956 THE CONSTITUTIONALITY OF THE ARTICLE AS APPLIED TO CIVILIAN
DEPENDENTS CHARGED WITH CAPITAL OFFENSES, IN THE COMPANION CASES OF
KINSELLA V. KRUEGER, 351 U.S. 470, AND REID V. COVERT, 351 U.S. 487. 
AT THE ORIGINAL SUBMISSION OF THOSE CASES, WE DECIDED BY A BARE
MAJORITY THAT THE ARTICLE WAS A VALID EXERCISE OF THE POWER OF THE
CONGRESS, UNDER ART. IV, SEC. 3, TO "MAKE ALL NEEDFUL RULES AND
REGULATIONS" FOR THE "TERRITORIES" OF THE UNITED STATES.  WE HELD
FURTHER THAT THE "PROCEDURE IN SUCH TRIBUNALS NEED NOT COMPLY WITH THE
STANDARDS PRESCRIBED BY THE CONSTITUTION FOR ARTICLE III COURTS," 351
U.S., AT 475, AND SPECIFICALLY UPHELD COURT-MARTIAL JURISDICTION IN
SUCH CASES AGAINST THE CONTENTION THAT ITS PROCEDURES DID NOT PROVIDE
FOR INDICTMENT BY GRAND JURY OR TRIAL BY PETIT JURY.  IN SHORT, WE SAID
THAT THE FAILURE TO PROVIDE SUCH PROTECTIONS RAISED "NO CONSTITUTIONAL
DEFECT," CITING IN RE ROSS, 140 U.S. 453 (1891), AND THE INSULAR CASES,
SUCH AS BALZAC V. PORTO RICO, 258 U.S. 298 (1922).  AFTER REHEARING AT
THE FOLLOWING TERM, THESE OPINIONS WERE WITHDRAWN AND JUDGMENTS WERE
ENTERED DECLARING THE ARTICLE UNCONSTITUTIONAL WHEN APPLIED TO CIVILIAN
DEPENDENTS CHARGED WITH CAPITAL OFFENSES.  REID V. COVERT, CONSOLIDATED
WITH KINSELLA V. KRUEGER, 354 U.S. 1 (1957).  THE COURT HELD (FN2) THAT
THE POWER OVER "TERRITORIES," AS APPLIED BY THE IN RE ROSS DOCTRINE,
WAS NEITHER APPLICABLE NOR CONTROLLING.  IT FOUND THAT TRIAL BY COURT
MARTIAL WAS THE EXERCISE OF AN EXCEPTIONAL JURISDICTION SPRINGING FROM
THE POWER GRANTED THE CONGRESS IN ART. I, SEC. 8, CL. 14, "TO MAKE
RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES,"
AS SUPPLEMENTED BY THE NECESSARY AND PROPER CLAUSE OF ART. I, SEC. 8,
CL. 18.  (FN3)  BUT AS APPLIED TO THE CIVILIAN DEPENDENTS THERE
INVOLVED IT MUST BE CONSIDERED, THE COURT SAID, IN RELATION TO ARTICLE
III AND THE FIFTH AND SIXTH AMENDMENTS.  THE MAJORITY CONCLUDED THAT,
IN THOSE CAPITAL CASES, TRIAL BY COURT-MARTIAL AS PROVIDED COULD NOT
CONSTITUTIONALLY BE JUSTIFIED. 

THE APPELLEE CONTENDS THAT THIS RESULT, DECLARING CIVILIAN DEPENDENTS
CHARGED WITH CAPITAL OFFENSES NOT TO BE SUBJECT TO THE PROVISIONS OF
THE CODE, BEARS DIRECTLY ON ITS APPLICABILITY TO THE SAME CLASS CHARGED
WITH NONCAPITAL CRIMES.  SHE SAYS THAT THE TEST OF WHETHER CIVILIAN
DEPENDENTS COME WITHIN THE POWER OF CONGRESS AS GRANTED IN CLAUSE 14'S
LIMITATION TO THE "LAND AND NAVAL FORCES" IS THE STATUS OF THE PERSON
INVOLVED.  HER CONCLUSION IS THAT IF CIVILIAN DEPENDENTS CHARGED WITH
CAPITAL OFFENSES ARE NOT WITHIN THAT LANGUAGE, A FORTIORI, PERSONS IN
THE SAME CLASS CHARGED WITH NONCAPITAL OFFENSES CANNOT BE INCLUDED,
SINCE THE CLAUSE DRAWS NO DISTINCTION AS TO OFFENSES.  THE GOVERNMENT
FULLY ACCEPTS THE HOLDING IN THE SECOND COVERT CASE, SUPRA.  IT
CONTENDS THAT THE CASE IS CONTROLLING ONLY WHERE CIVILIAN DEPENDENTS
ARE CHARGED WITH CAPITAL OFFENSES, AND THAT IN FACT THE CONCURRENCES
INDICATE THAT CONSIDERATIONS OF A COMPELLING NECESSITY FOR PROSECUTION
BY COURTS-MATRIAL OF CIVILIAN DEPENDENTS CHARGED WITH NONCAPITAL
OFFENSES MIGHT PERMIT WITH REASON THE INCLUSION OF THAT LIMITED
CATEGORY WITHIN COURT-MARTIAL JURISDICTION.  IT SUBMITS THAT SUCH
NECESSITIES ARE CONTROLLING IN THE CASE OF CIVILIAN DEPENDENTS CHARGED
WITH NONCAPITAL CRIMES.  IT POINTS OUT THAT SUCH DEPENDENTS AFFECT THE
MILITARY COMMUNITY AS A WHOLE; THAT THEY HAVE, IN FACT, BEEN PERMITTED
TO ENJOY THEIR RESIDENCE IN SUCH COMMUNITIES ON THE REPRESENTATION THAT
THEY ARE SUBJECT TO MILITARY CONTROL; AND THAT REALISTICALLY THEY ARE A
PART OF THE MILITARY ESTABLISHMENT.  IT ARGUES THAT, FROM A MORALE
STANDPOINT, THE PRESENT NEED FOR DEPENDENTS TO ACCOMPANY AMERICAN
FORCES MAINTAINED ABROAD IS A PRESSING ONE; THAT THEIR SPECIAL STATUS
AS INTEGRAL PARTS OF THE MILITARY COMMUNITY REQUIRES DISCIPLINARY
CONTROL OVER THEM BY THE MILITARY COMMANDER; THAT THE EFFECTIVENESS OF
THIS CONTROL DEPENDS UPON A READILY AVAILABLE MACHINERY AFFORDING A
PROMPT SANCTION AND RESULTING DETERRENT PRESENT ONLY IN COURT-MARTIAL
JURISDICTION; AND THAT NOT ONLY IS COURT-MARTIAL PROCEDURE INHERENTLY
FAIR BUT THERE ARE NO ALTERNATIVES TO IT.  THE GOVERNMENT FURTHER
CONTENDS THAT IT HAS ENTERED INTO INTERNATIONAL AGREEMENTS WITH A LARGE
NUMBER OF FOREIGN GOVERNMENTS PERMITTING THE EXERICSE OF MILITARY
JURISDICTION IN THE TERRITORY OF THE SIGNATORIES, AND PURSUANT TO THE
SAME IT HAS BEEN UTILIZING COURT-MARTIAL PROCEDURES AT VARIOUS AMERICAN
INSTALLATIONS ABROAD.  ITS LEGAL THEORY IS BASED ON HISTORICAL
MATERIALS WHICH IT ASSERTS INDICATE A WELL-ESTABLISHED PRACTICE OF
COURT-MARTIAL JURISDICTION OVER CIVILIANS ACCOMPANYING THE ARMED
FORCES, DURING COLONIAL DAYS AS WELL AS THE FORMATIVE PERIOD OF OUR
CONSTITUTION.  FROM THIS IT CONCLUDES THAT CIVILIAN DEPENDENTS MAY BE
INCLUDED AS A NECESSARY AND PROPER INCIDENT TO THE CONGRESSIONAL POWER
"TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL
FORCES," AS GRANTED IN CLAUSE 14. 

IN THIS FIELD, TOTH V. QUARLES, 350 U.S. 11 (1955), CITED WITH
APPROVAL BY A MAJORITY IN THE SECOND COVERT CASE, SUPRA, IS A
LANDMARK.  LIKEWISE, OF COURSE, WE MUST CONSIDER THE EFFECT OF THE
LATTER CASE ON OUR PROBLEM.  (FN4)  WE THEREFORE TURN TO THEIR
TEACHINGS.  THE TOTH CASE INVOLVED A DISCHARGED SOLDIER WHO WAS TRIED
BY COURT-MARTIAL AFTER HIS DISCHARGE FROM THE ARMY, FOR AN OFFENSE
COMMITTED BEFORE HIS DISCHARGE.  IT WAS SAID THERE THAT THE CLAUSE 14
"PROVISION ITSELF DOES NOT EMPOWER CONGRESS TO DEPRIVE PEOPLE OF TRIALS
UNDER BILL OF RIGHTS SAFEGUARDS," 350 U.S., AT 21-22, AND THAT MILITARY
TRIBUNALS MUST BE RESTRICTED "TO THE NARROWEST JURISDICTION DEEMED
ABSOLUTELY ESSENTIAL TO MAINTAINING DISCIPLINE AMONG TROOPS IN ACTIVE
SERVICE," ID., AT 22.  WE BRUSHED ASIDE THE THOUGHT THAT
"CONSIDERATIONS OF DISCIPLINE" COULD PROVIDE AN EXCUSE FOR "NEW
EXPANSION OF COURT-MARTIAL JURISDICTION AT THE EXPENSE OF THE NORMAL
AND CONSTITUTIONALLY PREFERABLE SYSTEM OF TRIAL BY JURY."  ID., AT 22
23.  WE WERE THEREFORE "NOT WILLING TO HOLD THAT POWER TO CIRCUMVENT
THOSE SAFEGUARDS SHOULD BE INFERRED THROUGH THE NECESSARY AND PROPER
CLAUSE."  ID., AT 22.  THE HOLDING OF THE CASE MAY BE SUMMED UP IN ITS
OWN WORDS, NAMELY, THAT "THE POWER GRANTED CONGRESS 'TO MAKE RULES' TO
REGULATE 'THE LAND AND NAVAL FORCES' WOULD SEEM TO RESTRICT COURT
MARTIAL JURISDICTION TO PERSONS WHO ARE ACTUALLY MEMBERS OR PART OF THE
ARMED FORCES."  ID., AT 15. 

IT WAS WITH THIS GLOSS ON CLAUSE 14 THAT THE COURT REACHED THE SECOND
COVERT CASE, SUPRA.  THERE, AS WE HAVE NOTED, THE PERSON INVOLVED WAS
THE CIVILIAN DEPENDENT OF A SOLDIER, WHO WAS ACCOMPANYING HIM OUTSIDE
THE UNITED STATES WHEN THE CAPITAL OFFENSE COMPLAINED OF WAS
COMMITTED.  THE MAJORITY CONCLUDED THAT "TRIAL BY COURT-MARTIAL IS
CONSTITUTIONALLY PERMISSIBLE ONLY FOR PERSONS WHO CAN, ON A FAIR
APPRAISAL, BE REGARDED AS FALLING WITHIN THE AUTHORITY GIVEN TO
CONGRESS UNDER ARTICLE I TO REGULATE THE 'LAND AND NAVAL FORCES'  ...
."  CONCURRING OPINION, 354 U.S., AT 42.  (FN5)  THE TEST FOR
JURISDICTION, IT FOLLOWS IS ONE OF STATUS, NAMELY, WHETHER THE ACCUSED
IN THE COURT-MARTIAL PROCEEDING IS A PERSON WHO CAN BE REGARDED AS
FALLING WITHIN THE TERM "LAND AND NAVAL FORCES."  THE COURT CONCLUDED
THAT CIVILIAN DEPENDENTS CHARGED WITH CAPITAL OFFENSES WERE NOT
INCLUDED WITHIN SUCH AUTHORITY, THE CONCURRING JUSTICES EXPRESSING THE
VIEW THAT THEY DID NOT THINK "THAT THE PROXIMITY, PHYSICAL AND SOCIAL,
OF THESE WOMEN TO THE 'LAND AND NAVAL FORCES' IS, WITH DUE REGARD TO
ALL THAT HAS BEEN PUT BEFORE US, SO CLEARLY DEMANDED BY THE EFFECTIVE
'GOVERNMENT AND REGULATION' OF THOSE FORCES AS REASONABLY TO
DEMONSTRATE A JUSTIFICATION FOR COURT-MARTIAL JURISDICTION OVER CAPITAL
OFFENSES."  CONCURRING OPINION, 354 U.S., AT 46-47. 

IN THE SECOND COVERT CASE, EACH OPINION SUPPORTING THE JUDGMENT
STRUCK DOWN THE ARTICLE AS IT WAS APPLIED TO CIVILIAN DEPENDENTS
CHARGED WITH CAPITAL CRIMES.  THE SEPARATE CONCURRENCES SUPPORTED THE
JUDGMENT ON THE THEORY THAT THE CRIME BEING "IN FACT PUNISHABLE BY
DEATH," ID., AT 45, THE QUESTION TO BE DECIDED IS "ANALOGOUS,
ULTIMATELY, TO ISSUES OF DUE PROCESS," ID., AT 75.  THE JUSTICES
JOINING IN THE OPINION ANNOUNCING THE JUDGMENT, HOWEVER, DID NOT JOIN
IN THIS VIEW, BUT HELD THAT THE CONSTITUTIONAL SAFEGUARDS CLAIMED
APPLIED IN "ALL CRIMINAL TRIALS" IN ARTICLE III COURTS AND APPLIED
"OUTSIDE OF THE STATES," POINTING OUT THAT BOTH THE FIFTH AND SIXTH
AMENDMENTS WERE "ALL INCLUSIVE WITH THEIR SWEEPING REFERENCES TO 'NO
PERSON' AND TO 'ALL CRIMINAL PROSECUTIONS.'"  ID., AT 7-8.  THE TWO
DISSENTERS (FN6) FOUND "NO DISTINCTION IN THE CONSTITUTION BETWEEN
CAPITAL AND OTHER CASES," ID., AT 89, BUT SAID THAT THE CONSTITUTIONAL
SAFEGUARDS CLAIMED WERE NOT REQUIRED UNDER THE POWER GRANTED CONGRESS
IN ART. IV, SEC. 3, AND THE CASES HERETOFORE MENTIONED.  THE BRIEFS AND
ARGUMENT IN COVERT REVEAL THAT IT WAS ARGUED AND SUBMITTED BY THE
PARTIES ON THE THEORY THAT NO CONSTITUTIONAL DISTINCTION COULD BE DRAWN
BETWEEN CAPITAL AND NONCAPITAL OFFENSES FOR THE PURPOSES OF CLAUSE 14. 
SUPPLEMENTAL BRIEF FOR GOVERNMENT ON REHEARING, NOS. 701 AND 713, AT
PP. 16-20, 82-95. 

WE HAVE GIVEN CAREFUL STUDY TO THE CONTENTIONS OF THE GOVERNMENT. 
THEY ADD UP TO A REVERSE OF FORM FROM THE BROAD PRESENTATION IN COVERT,
WHERE IT ASSERTED THAT NO DISTINCTION COULD BE DRAWN BETWEEN CAPITAL
AND NONCAPITAL OFFENSES.  BUT THE SAME FITTINGS ARE USED HERE WITH ONLY
ADAPTATION TO NONCAPITAL CRIMES.  THE GOVERNMENT ASSERTS THAT THE
SECOND COVERT CASE, RATHER THAN FORECLOSING THE ISSUE HERE, INDICATES
THAT MILITARY TRIBUNALS WOULD HAVE JURISDICTION OVER CIVILIAN
DEPENDENTS CHARGED WITH OFFENSES LESS THAN CAPITAL.  IT SAYS THAT THE
TRIAL OF SUCH A PERSON FOR A NONCAPITAL CRIME IS "SIGNIFICANTLY
DIFFERENT" FROM HIS TRIAL FOR A CAPITAL ONE, THAT THE MAINTAINING OF
DIFFERENT STANDARDS OR CONSIDERATIONS IN CAPITAL CASES IS NOT A NEW
CONCEPT, AND THAT, THEREFORE, THERE MUST BE A FRESH EVALUATION OF THE
NECESSITIES FOR COURT-MARTIAL JURISDICTION AND A NEW BALANCING OF THE
RIGHTS INVOLVED.  AS WE HAVE INDICATED, THESE NECESSITIES ADD UP TO
ABOUT THE SAME AS THOSE ASSERTED IN CAPITAL CASES AND WHICH THE
CONCURRENCE IN SECOND COVERT HELD AS NOT OF SUFFICIENT "PROXIMITY,
PHYSICAL AND SOCIAL  ...  TO THE 'LAND AND NAVAL FORCES'  ...  AS
REASONABLY TO DEMONSTRATE A JUSTIFICATION" FOR COURT-MARTIAL
PROSECUTION.  LIKEWISE IN THE GOVERNMENT'S HISTORICAL MATERIAL -
DEALING WITH COURT-MARTIAL JURISDICTION DURING PEACE - WHICH WAS FOUND
IN COVERT "TOO EPISODIC, TOO MEAGER  ...  FOR CONSTITUTIONAL
ADJUDICATION," CONCURRING OPINION, 354 U.S., AT 64, IT HAS BEEN UNABLE
TO POINT OUT ONE COURT-MARTIAL WHICH DREW ANY DISTINCTION, INSOFAR AS
THE GRANT OF POWER TO THE CONGRESS UNDER CLAUSE 14 WAS CONCERNED,
BETWEEN CAPITAL AND NONCAPITAL CRIMES.  (FN7)  THE GOVERNMENT MAKES NO
CLAIM THAT HISTORICALLY THERE WAS EVER ANY DISTINCTION MADE AS TO THE
JURISDICTION OF COURTS-MARTIAL TO TRY CIVILIAN DEPENDENTS ON THE BASIS
OF CAPITAL AS AGAINST NONCAPITAL OFFENSES.  WITHOUT CONTRADICTION, THE
MATERIALS FURNISHED SHOW THAT MILITARY JURISDICTION HAS ALWAYS BEEN
BASED ON THE "STATUS" OF THE ACCUSED, RATHER THAN ON THE NATURE OF THE
OFFENSE.  TO SAY THAT MILITARY JURISDICTION "DEFIES DEFINITION IN TERMS
OF MILITARY 'STATUS'" IS TO DEFY UNAMBIGUOUS LANGUAGE OF ART. I, SEC.
8, CL. 14, AS WELL AS THE HISTORICAL BACKGROUND THEREOF AND THE
PRECEDENTS WITH REFERENCE THERETO.  (FN8) 

FURTHERMORE, WE ARE NOT CONVINCED THAT A CRITICAL IMPACT UPON
DISCIPLINE WILL RESULT, AS CLAIMED BY THE GOVERNMENT (EVEN IF ANYONE
DEEMED THIS A RELEVANT CONSIDERATION), IF NONCAPITAL OFFENSES ARE GIVEN
THE SAME TREATMENT AS CAPITAL ONES BY VIRTUE OF THE SECOND COVERT
CASE.  THE SAME NECESSITIES CLAIMED HERE WERE FOUND PRESENT IN THE
SECOND COVERT CASE (SEE THE DISSENT THERE) AND WERE REJECTED BY THE
COURT.  EVEN IF THE NECESSITY FOR COURT-MARTIAL JURISDICTION BE
RELEVANT IN CASES INVOLVING DEPRIVATION OF THE CONSTITUTIONAL RIGHTS OF
CIVILIAN DEPENDENTS, WHICH WE SERIOUSLY QUESTION, WE DOUBT THAT THE
EXISTENCE OF THE SMALL NUMBER OF NONCAPITAL CASES NOW ADMITTED BY THE
GOVERNMENT IN ITS BRIEF HERE, (FN9) WHEN SPREAD OVER THE WORLD-WIDE
COVERAGE OF MILITARY INSTALLATIONS, WOULD OF ITSELF BRING ON SUCH A
CRISIS.  MOREOVER, IN THE CRITICAL AREAS OF OCCUPATION, OTHER LEGAL
GROUNDS MAY EXIST FOR COURT-MARTIAL JURISDICTION AS CLAIMED BY THE
GOVERNMENT IN NO. 37, WILSON V. BOHLENDER, POST, P. 281.  SEE MADSEN V.
KINSELLA, 343 U.S. 341 (1952).  ANOTHER SERIOUS OBSTACLE TO PERMITTING
PROSECUTION OF NONCAPITAL OFFENSES, WHILE REJECTING CAPITAL ONES, IS
THAT IT WOULD PLACE IN THE HANDS OF THE MILITARY AN UNREVIEWABLE
DISCRETION TO EXERCISE JURISDICTION OVER CIVILIAN DEPENDENTS SIMPLY BY
DOWNGRADING THE OFFENSE, THUS STRIPPING THE ACCUSED OF HIS
CONSTITUTIONAL RIGHTS AND PROTECTIONS.  BY ALLOWING THIS ASSUMPTION OF
"THE GARB OF MERCY," (FN10) WE WOULD BE DEPRIVING A CAPITAL OFFENDER OF
HIS CONSTITUTIONAL MEANS OF DEFENSE AND IN EFFECT WOULD NULLIFY THE
SECOND COVERT CASE.  THIS SITUATION WILL BE AGGRAVATED BY THE WANT OF
LEGISLATION PROVIDING FOR TRIALS IN CAPITAL CASES IN ARTICLE III COURTS
SITTING IN THE UNITED STATES.  AT ARGUMENT, THE GOVERNMENT INDICATED
THAT THERE HAD BEEN NO EFFORT IN THE CONGRESS TO MAKE ANY PROVISION FOR
THE PROSECUTION OF SUCH CASES EITHER IN CONTINENTAL UNITED STATES OR IN
FOREIGN LANDS.  STILL WE HEARD NO CLAIM THAT THE TOTAL FAILURE TO
PROSECUTE CAPITAL CASES AGAINST CIVILIAN DEPENDENTS SINCE THE SECOND
COVERT DECISION IN 1957 HAD AFFECTED IN THE LEAST THE DISCIPLINE AT
ARMED SERVICES INSTALLATIONS.  WE DO KNOW THAT IN ONE CASE, WILSON V.
GIRARD, 354 U.S. 524 (1957), THE GOVERNMENT INSISTED AND WE AGREED THAT
IT HAD THE POWER TO TURN OVER AN AMERICAN SOLDIER TO JAPANESE CIVIL
AUTHORITIES FOR TRIAL FOR AN OFFENSE COMMITTED WHILE ON DUTY.  WE HAVE
NO INFORMATION AS TO THE IMPACT OF THAT TRIAL ON CIVILIAN DEPENDENTS. 
STRANGELY, THIS ITSELF MIGHT PROVE TO BE QUITE AN EFFECTIVE DETERRENT. 
MOREOVER, THE IMMEDIATE RETURN TO THE UNITED STATES PERMANENTLY OF SUCH
CIVILIAN DEPENDENTS, OR THEIR SUBSEQUENT PROSECUTION IN THE UNITED
STATES FOR THE MORE SERIOUS OFFENSES WHEN AUTHORIZED BY THE CONGRESS,
MIGHT WELL BE THE ANSWER TO THE DISCIPLINARY PROBLEM.  CERTAINLY SUCH
TRIALS WOULD NOT INVOLVE AS MUCH EXPENSE NOR BE AS DIFFICULT OF
SUCCESSFUL PROSECUTION AS CAPITAL OFFENSES. 

WE NOW REACH THE GOVERNMENT'S SUGGESTION THAT, IN THE LIGHT OF THE
NONCAPITAL NATURE OF THE OFFENSE HERE, AS OPPOSED TO THE CAPITAL ONE IN
THE COVERT CASE, WE SHOULD MAKE A "FRESH EVALUATION AND A NEW
BALANCING."  BUT THE POWER TO "MAKE RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES" BEARS NO LIMITATION AS TO
OFFENSES.  THE POWER THERE GRANTED INCLUDES NOT ONLY THE CREATION OF
OFFENSES BUT THE FIXING OF THE PUNISHMENT THEREFOR.  IF CIVILIAN
DEPENDENTS ARE INCLUDED IN THE TERM "LAND AND NAVAL FORCES" AT ALL,
THEY ARE SUBJECT TO THE FULL POWER GRANTED THE CONGRESS THEREIN TO
CREATE CAPITAL AS WELL AS NONCAPITAL OFFENSES.  THIS COURT CANNOT
DIMINISH AND EXPAND THAT POWER, EITHER ON A CASE-BY-CASE BASIS OR ON A
BALANCING OF THE POWER THERE GRANTED CONGRESS AGAINST THE SAFEGUARDS OF
ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS.  DUE PROCESS CANNOT
CREATE OR ENLARGE POWER.  SEE TOTH V. QUARLES, SUPRA.  IT HAS TO DO, AS
TAUGHT BY THE GOVERNMENT'S OWN CASES, (FN11) WITH THE DENIAL OF THAT
"FUNDAMENTAL FAIRNESS, SHOCKING TO THE UNIVERSAL SENSE OF JUSTICE." 
BETTS V. BRADY, 316 U.S. 455, 462 (1942).  IT DEALS NEITHER WITH POWER
NOR WITH JURISDICTION, BUT WITH THEIR EXERCISE.  OBVIOUSLY FOURTEENTH
AMENDMENT CASES DEALING WITH STATE ACTION HAVE NO APPLICATION HERE, BUT
IF THEY DID, WE BELIEVE THAT TO DEPRIVE CIVILIAN DEPENDENTS OF THE
SAFEGUARDS OF A JURY TRIAL HERE, AN INFAMOUS CASE BY CONSTITUTIONAL
STANDARDS, WOULD BE AS INVALID UNDER THOSE CASES AS IT WOULD BE IN
CASES OF A CAPITAL NATURE.  NOR DO WE BELIEVE THAT DUE PROCESS
CONSIDERATIONS BRING ABOUT AN EXPANSION OF CLAUSE 14 THROUGH THE
OPERATION OF THE NECESSARY AND PROPER CLAUSE.  IF THE EXERCISE OF THE
POWER IS VALID IT IS BECAUSE IT IS GRANTED IN CLAUSE 14, NOT BECAUSE OF
THE NECESSARY AND PROPER CLAUSE.  THE LATTER CLAUSE IS NOT ITSELF A
GRANT OF POWER, BUT A CAVEAT THAT THE CONGRESS POSSESSES ALL THE MEANS
NECESSARY TO CARRY OUT THE SPECIFICALLY GRANTED "FOREGOING" POWERS OF
SEC. 8 "AND ALL OTHER POWERS VESTED BY THIS CONSTITUTION  ...  ."  AS
JAMES MADISON EXPLAINED, THE NECESSARY AND PROPER CLAUSE IS "BUT MERELY
A DECLARATION, FOR THE REMOVAL OF ALL UNCERTAINTY, THAT THE MEANS OF
CARRYING INTO EXECUTION THOSE POWERS OTHERWISE GRANTED ARE INCLUDED IN
THE GRANT."  VI WRITINGS OF JAMES MADISON, EDITED BY GAILLARD HUNT,
383.  THERE CAN BE NO QUESTION BUT THAT CLAUSE 14 GRANTS THE CONGRESS
POWER TO ADOPT THE UNIFORM CODE OF MILITARY JUSTICE.  OUR INITIAL
INQUIRY IS WHETHER CONGRESS CAN INCLUDE CIVILIAN DEPENDENTS WITHIN THE
TERM "LAND AND NAVAL FORCES" AS A PROPER INCIDENT TO THIS POWER AND
NECESSARY TO ITS EXECUTION.  IF ANSWERED IN THE AFFIRMATIVE THEN
CIVILIAN DEPENDENTS ARE AMENABLE TO THE CODE.  IN THE SECOND COVERT
CASE, SUPRA, IT WAS HELD THEY WERE NOT SO AMENABLE AS TO CAPITAL
OFFENSES.  OUR FINAL INQUIRY, THEREFORE, IS NARROWED TO WHETHER CLAUSE
14, WHICH UNDER THE SECOND COVERT CASE HAS BEEN HELD NOT TO INCLUDE
CIVILIAN DEPENDENTS CHARGED WITH CAPITAL OFFENSES, MAY NOW BE EXPANDED
TO INCLUDE CIVILIAN DEPENDENTS WHO ARE CHARGED WITH NONCAPITAL
OFFENSES.  WE AGAIN REFER TO JAMES MADISON. 

"WHEN THE CONSTITUTION WAS UNDER THE DISCUSSIONS WHICH PRECEDED ITS
RATIFICATION, IT IS WELL KNOWN THAT GREAT APPREHENSIONS WERE EXPRESSED
BY MANY, LEST THE OMISSION OF SOME POSITIVE EXCEPTION, FROM THE POWERS
DELEGATED, OF CERTAIN RIGHTS,  ...  MIGHT EXPOSE THEM TO THE DANGER OF
BEING DRAWN, BY CONSTRUCTION, WITHIN SOME OF THE POWERS VESTED IN
CONGRESS, MORE ESPECIALLY OF THE POWER TO MAKE ALL LAWS NECESSARY AND
PROPER FOR CARRYING THEIR OTHER POWERS INTO EXECUTION.  IN REPLY TO
THIS OBJECTION, IT WAS INVARIABLY URGED TO BE A FUNDAMENTAL AND
CHARACTERISTIC PRINCIPLE OF THE CONSTITUTION, THAT ALL POWERS NOT GIVEN
BY IT WERE RESERVED; THAT NO POWERS WERE GIVEN BEYOND THOSE ENUMERATED
IN THE CONSTITUTION, AND SUCH AS WERE FAIRLY INCIDENT TO THEM; ...  ." 
WRITINGS, SUPRA, AT 390. 

WE ARE THEREFORE CONSTRAINED TO SAY THAT SINCE THIS COURT HAS SAID
THAT THE NECESSARY AND PROPER CLAUSE CANNOT EXPAND CLAUSE 14 SO AS TO
INCLUDE PROSECUTION OF CIVILIAN DEPENDENTS FOR CAPITAL CRIMES, IT
CANNOT EXPAND CLAUSE 14 TO INCLUDE PROSECUTION OF THEM FOR NONCAPITAL
OFFENSES. 

NEITHER OUR HISTORY NOR OUR DECISIONS FURNISH A FOOTHOLD FOR THE
APPLICATION OF SUCH DUE PROCESS CONCEPT AS THE GOVERNMENT PROJECTS. 
ITS APPLICATION TODAY IN THE LIGHT OF THE IRREVERSIBILITY OF THE DEATH
PENALTY WOULD FREE FROM MILITARY PROSECUTION A CIVILIAN ACCOMPANYING OR
EMPLOYED BY THE ARMED SERVICES WHO COMMITTED A CAPITAL OFFENSE, WHILE
THE SAME CIVILIAN COULD BE PROSECUTED BY THE MILITARY FOR A NONCAPITAL
CRIME.  IT IS ILLOGICAL TO SAY THAT "THE POWER RESPECTING THE LAND AND
NAVAL FORCES ENCOMPASSES  ...  ALL THAT CONGRESS MAY APPROPRIATELY DEEM
'NECESSARY' FOR THEIR GOOD ORDER" AND STILL DENY TO CONGRESS THE MEANS
TO EXERCISE SUCH POWER THROUGH THE INFLICTION OF THE DEATH PENALTY. 
BUT THAT IS PROPOSED HERE.  IN OUR VIEW THIS WOULD MILITATE AGAINST OUR
WHOLE CONCEPT OF POWER AND JURISDICTION.  IT WOULD LIKEWISE BE CONTRARY
TO THE ENTIRE HISTORY OF THE ARTICLES OF WAR.  EVEN PRIOR TO THE
CONSTITUTIONAL CONVENTION, THE ARTICLES OF WAR INCLUDED 17 CAPITAL
OFFENSES APPLICABLE TO ALL PERSONS WHOSE STATUS BROUGHT THEM WITHIN THE
TERM "LAND AND NAVAL FORCES."  THERE WERE NOT THEN AND NEVER HAVE BEEN
ANY EXCEPTIONS AS TO PERSONS IN THE APPLICABILITY OF THESE CAPITAL
OFFENSES.  IN 1806 WHEN THE ARTICLES OF WAR WERE FIRST REVISED,
CONGRESS RETAINED THEREIN 16 OFFENSES THAT CARRIED THE DEATH PENALTY,
ALTHOUGH THERE WAS COMPLAINT THAT "ALMOST EVERY ARTICLE IN THE BILL WAS
STAINED WITH BLOOD."  15 ANNALS OF CONG. 326. 

NOR DO WE BELIEVE THAT THE EXCLUSION OF NONCAPITAL OFFENSES ALONG
WITH CAPITAL ONES WILL CAUSE ANY ADDITIONAL DISTURBANCE IN OUR
"DELICATE ARRANGEMENTS WITH MANY FOREIGN COUNTRIES."  THE GOVERNMENT
HAS POINTED TO NO DISRUPTION IN SUCH RELATIONS BY REASON OF THE SECOND
COVERT DECISION.  CERTAINLY THIS CASE INVOLVES NO MORE "IMPORTANT
NATIONAL CONCERNS INTO WHICH WE SHOULD BE RELUCTANT TO ENTER" THAN DID
COVERT.  IN TRUTH THE PROBLEMS ARE IDENTICAL AND ARE SO INTERTWINED
THAT EQUAL TREATMENT OF CAPITAL AND NONCAPITAL CASES WOULD BE A
PALLIATIVE TO A TROUBLED WORLD. 

WE THEREFORE HOLD THAT MRS. DIAL IS PROTECTED BY THE SPECIFIC
PROVISIONS OF ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS AND THAT
HER PROSECUTION AND CONVICTION BY COURT-MARTIAL ARE NOT
CONSTITUTIONALLY PERMISSIBLE.  THE JUDGMENT MUST THEREFORE BE
AFFIRMED. 

FN1  ART. 2.  "THE FOLLOWING PERSONS ARE SUBJECT TO THIS CHAPTER: 

     *   *         *         *         * 

"(11)  SUBJECT TO ANY TREATY OR AGREEMENT TO WHICH THE UNITED STATES
IS OR MAY BE A PARTY OR TO ANY ACCEPTED RULE OF INTERNATIONAL LAW,
PERSONS SERVING WITH, EMPLOYED BY, OR ACCOMPANYING THE ARMED FORCES
OUTSIDE THE UNITED STATES AND OUTSIDE THE FOLLOWING:  THAT PART OF
ALASKA EAST OF LONGITUDE 172 DEGREES WEST, THE CANAL ZONE, THE MAIN
GROUP OF THE HAWAIIAN ISLANDS, PUERTO RICO, AND THE VIRGIN ISLANDS." 

FN2  FOUR JUSTICES JOINED IN AN OPINION ANNOUNCING THE JUDGMENT, TWO
CONCURRED IN THE RESULT, AND TWO DISSENTED.  MR. JUSTICE WHITTAKER,
HAVING COME TO THE COURT SUBSEQUENT TO THE TIME OF ARGUMENT AND
DECISION IN THIS CASE, TOOK NO PART. 

FN3  CLAUSE 18.  "TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND
PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS, AND ALL OTHER
POWERS VESTED BY THIS CONSTITUTION IN THE GOVERNMENT OF THE UNITED
STATES, OR IN ANY DEPARTMENT OR OFFICER THEREOF." 

FN4  SEE ALSO DYNES V. HOOVER, 20 HOW.  65 (1857); EX PARTE MILLIGAN,
4 WALL.  2 (1866); DUNCAN V. KAHANAMOKU, 327 U.S. 304 (1946); AND
WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED. 1896), 144 ET SEQ. AND
REPRINT (1920) 105-107. 

FN5  THE SECOND CONCURRING OPINION EXPRESSED THE VIEW THAT ARTICLE I
WAS AN UNLIMITED GRANT OF POWER TO CONGRESS "TO MAKE SUCH LAWS IN THE
REGULATION OF THE LAND AND NAVAL FORCES AS ARE NECESSARY TO THE PROPER
FUNCTIONING OF THOSE FORCES" AND INDICATED THAT THE NECESSARY AND
PROPER CLAUSE "MODIFIED" CLAUSE 14 "EXPANDING" ITS POWER "UNDER
CHANGING CIRCUMSTANCES."  354 U.S., AT 68. 

FN6  THE WRITER OF THIS OPINION WROTE THE DISSENT. 

FN7  EVEN AT ARGUMENT HERE GOVERNMENT COUNSEL ADMITTED HE HAD FOUND
NO SUCH DISTINCTION OTHER THAN THAT ASSERTED BY THE CONCURRENCES IN
SECOND COVERT: 

MR. JUSTICE BLACK:  "WHAT IS THE HISTORICAL DIFFERENCE AS TO THE
'MEMBERS OF THE LAND AND NAVAL FORCES' AND THE CONSTITUTIONAL POWER OF
CONGRESS DEPENDENT UPON WHETHER THEY ARE CAPITAL CRIMES OR NONCAPITAL
CRIMES?  WHEN DID THAT DISTINCTION FIRST COME INTO EXISTENCE?" 

MR. DAVIS:  "WELL, I THINK THAT DISTINCTION WAS FIRST ARTICULATED IN
THE CONCURRING OPINIONS IN THE COVERT CASE." 

     *         *         *  *         * 

MR. JUSTICE BLACK:  "I REALLY ASKED YOU ABOUT THE HISTORY BECAUSE I
WAS CURIOUS TO KNOW WHETHER, IN YOUR READING AND SO FORTH, YOU FOUND
ANY REFERENCE TO THAT DISTINCTION IN THIS FIELD BEFORE THE COVERT
CASE." 

MR. DAVIS:  "NO.  NO EXPLICIT REFERENCE MR. JUSTICE BLACK." 

FN8  IT WAS FOR THIS REASON THAT THE MAJORITY IN THE FIRST COVERT
CASE, SUPRA, BASED ITS DECISION ON ART. IV, SEC. 3, RATHER THAN THE
CONGRESSIONAL POWER UNDER CLAUSE 14. 

FN9  ASIDE FROM TRAFFIC VIOLATIONS, THERE WERE ONLY 273 CASES (BOTH
CAPITAL AND NONCAPITAL) INVOLVING DEPENDENTS SUBJECT TO FOREIGN
JURISDICTION DURING THE PERIOD BETWEEN DECEMBER 1, 1954, AND NOVEMBER
30, 1958.  THIS NUMBER INCLUDES 54 "OFFENSES AGAINST ECONOMIC CONTROL
LAWS" AND 88 OFFENSES DENOMINATED "OTHER."  GOVERNMENT'S BRIEF ON THE
MERITS IN MCELROY V. GUAGLIARDO, NO. 21, AT P. 75.    FN10  "HE WAS
GLAD, HE SAID, THAT THE PENALTY UNDER THIS BILL WAS NOT TO BE GREATER
THAN THAT TO WHICH PERSONS WERE SUBJECTED WHO WERE CONVICTED OF
COUNTERFEITING THE GREAT SEAL; BUT, ON THE OTHER HAND, HE FEARED THAT
THIS SEEMING LENITY WAS NOT WHAT IT APPEARED TO BE, THE CHILD OF MERCY;
HE APPREHNEDED THAT ITS OBJECT WAS TO FACILITATE THE CONVICTION OF THE
ACCUSED, BY TAKING FROM HIM THE MEANS OF DEFENCE, WHICH HE MIGHT CLAIM
AS HIS RIGHT, IF THE BILL LEFT THE ENUMERATED ACTS WITHIN THE STATUTE
OF THE 25TH OF EDWARD III.  THESE ACTS MIGHT BE CONSIDERED AS PROOFS OF
AN ADHERENCE TO THE KING'S ENEMIES, AND CONSEQUENTLY CAME WITHIN THE
SPECIES OF TREASON ON WHICH CORRUPTION OF BLOOD ATTACHED; BUT, BY
CLASSING THEM UNDER THE HEAD OF TREASONS WHICH DID NOT OPERATE A
CORRUPTION OF BLOOD, THE FRAMERS OF THE BILL HAD CONTRIVED TO TAKE FROM
THE ACCUSED THE MEANS OF DEFENCE, UNDER THE APPEARANCE OF LENITY.  OF
ALL THE CHARACTERS OF CRUELTY, HE CONSIDERED THAT AS THE MOST ODIOUS
WHICH ASSUMED THE GARB OF MERCY; SUCH WAS THE CASE HERE; UNDER THE
PRETENCE OF MERCY TO THE ACCUSED, IN NOT CHARGING HIM WITH CORRUPTION
OF BLOOD, HE WAS TO BE DERPIVED OF THE MEANS OF MAKING HIS DEFENCE. 
THAT HE MIGHT NOT STAND A CHANCE IN THE CONTEST, HIS SHIELD WAS TO BE
TAKEN FROM HIM.  THE LIST OF THE JURY, TO GIVE HIM THE BENEFIT OF THE
CHALLENGE - THE LIST OF WITNESSES, TO ENABLE HIM TO DETECT CONSPIRACIES
AND TO PREVENT PERJURY - THE COPY OF THE CHARGE TEN DAYS BEFORE THE
TRIAL, TO ENABLE HIM TO PREPARE HIMSELF FOR THE AWFUL DAY - THE
ASSISTANCE OF A LEARNED GENTLEMAN TO SPEAK FOR AN UNLEARNED MAN - ALL
THE ARMS AND MEANS OF PROTECTION WITH WHICH THE HUMANITY OF THE LAW OF
ENGLAND HAD FORTIFIED AN INDIVIDUAL, WHEN ACCUSED BY THE CROWN, WERE TO
BE TAKEN AWAY.  HARSHNESS AND SEVERITY WERE TO BE SUBSTITUTED FOR
TENDERNESS AND COMPASSION; AND THEN HE WAS TO BE INSULTED BY BEING TOLD
HE WAS SPARED THE CORRUPTION OF BLOOD]"  5 THE SPEECHES OF THE RIGHT
HON.  CHARLES JAMES FOX IN THE HOUSE OF COMMONS (LONDON 1815) 78. 

FN11  POWELL V. ALABAMA, 287 U.S. 45 (1932), AND BETTS V. BRADY, 316
U.S. 455 (1942), BOTH FOURTEENTH AMENDMENT CASES WHICH WOULD, OF
COURSE, HAVE NO APPLICATION HERE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING IN
NOS. 22, 21, AND 37, AND CONCURRING IN NO. 58.* 

*REPORTER'S NOTE:  NO. 22 IS KINSELLA V. SINGLETON, ANTE, P. 234; NO.
21 IS MCELROY V. GUAGLIARDO, POST, P. 281; NO. 37 IS WILSON V.
BOHLENDER, POST, P. 281; AND NO. 58 IS GRISHAM V. HAGAN, POST, P. 278. 

WITHIN THE COMPASS OF "ANY TREATY OR AGREEMENT TO WHICH THE UNITED
STATES IS OR MAY BE A PARTY" AND "ANY ACCEPTED RULE OF INTERNATIONAL
LAW," ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE MAKES
SUBJECT TO THE CODE, AND THEREFORE PROSECUTABLE BY COURTS-MARTIAL FOR
OFFENSES COMMITTED ABROAD, ALL "PERSONS SERVNG WITH, EMPLOYED BY, OR
ACCOMPANYING THE ARMED FORCES" OUTSIDE THE UNITED STATES AND CERTAIN
OTHER AREAS.  (FN1) 

THESE FOUR CASES, INVOLVING PERSONS AND CRIMES CONCEDEDLY COVERED BY
THE MILITARY CODE, BRING BEFORE US THE CONSTITUTIONALITY OF ARTICLE
2(11) AS APPLIED TO (1) CIVILIAN SERVICE DEPENDENTS CHARGED WITH
NONCAPITAL OFFENSES (NO. 22); (2) CIVILIAN SERVICE EMPLOYEES, ALSO
CHARGED WITH NONCAPITAL OFFENSES (NOS. 21 AND 37); (FN2) AND (3)
CIVILIAN SERVICE EMPLOYEES CHARGED WITH CAPITAL OFFENSES (NO. 58).  IN
EACH INSTANCE THE COURT HOLDS THE ACT UNCONSTITUTIONAL.  WHILE I AGREE
WITH THE JUDGMENT IN NO. 58, WHICH INVOLVES A CAPITAL OFFENSE, I CANNOT
AGREE WITH THE JUDGMENTS IN NOS. 22, 21 AND 37, IN EACH OF WHICH THE
CONVICTION WAS FOR A NONCAPITAL OFFENSE. 

THE EFFECT OF THESE DECISIONS IS TO DENY TO CONGRESS THE POWER TO
GIVE THE MILITARY SERVICES, WHEN THE UNITED STATES IS NOT ACTUALLY AT
WAR, CRIMINAL JURISDICTION OVER NONCAPITAL OFFENSES COMMITTED BY
NONMILITARY PERSONNEL WHILE ACCOMPANYING OR SERVING WITH OUR ARMED
FORCES ABROAD.  I CONSIDER THIS A MUCH TOO NARROW CONCEPTION OF THE
CONSTITUTIONAL POWER OF CONGRESS AND THE RESULT PARTICULARLY
UNFORTUNATE IN THE SETTING OF THE PRESENT-DAY INTERNATIONAL SCENE.  TO
PUT WHAT THE COURT HAS DECIDED IN PROPER CONTEXT, SOME REVIEW OF THE
PAST FATE OF ARTICLE 2(11) IN THIS COURT IS DESIRABLE. 

AT THE 1955 TERM THERE CAME BEFORE THE COURT IN KINSELLA V. KRUEGER,
351 U.S. 470, AND REID V. COVERT, 351 U.S. 487, THE QUESTION WHETHER
TWO ARMY WIVES COULD BE CONSTITUTIONALLY CONVICTED, UNDER ARTICLE
2(11), OF THE CAPITAL OFFENSE OF FIRST DEGREE MURDER, COMMITTED WHILE
STATIONED WITH THEIR HUSBANDS AT MILITARY BASES ABROAD.  INITIALLY A
DIVIDED COURT, IN TWO OPINIONS WHICH I JOINED, UPHELD THE CONVICTIONS. 
(FN3)  IN SO HOLDING THE COURT RELIED NOT UPON THE CONSTITUTIONAL POWER
OF CONGRESS "TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE
LAND AND NAVAL FORCES," ART. I, SEC. 8, CL. 14, BUT UPON IN RE ROSS,
140 U.S. 453, THE SO-CALLED INSULAR CASES, E.G., BALZAC V. PORTO RICO,
258 U.S. 298, AND ART. IV, SEC. 3, OF THE CONSTITUTION, RESPECTING
CONGRESSIONAL POWER OVER TERRITORIES.  THESE FACTORS, IN COMBINATION,
LED THE COURT TO CONCLUDE THAT THE CONSTITUTIONAL GUARANTEES OF ARTICLE
III AND THE FIFTH AND SIXTH AMENDMENTS DID NOT APPLY TO CRIMINAL TRIALS
OF AMERICANS ABROAD BEFORE LEGISLATIVELY ESTABLISHED TRIBUNALS; THAT IT
WAS PERMISSIBLE FOR CONGRESS TO CONCLUDE THAT PERSONS CIRCUMSTANCED AS
THOSE WOMEN WERE SHOULD BE TRIED BEFORE A COURT-MARTIAL, RATHER THAN A
CIVIL TRIBUNAL; AND THAT SUCH TRIALS DID NOT OFFEND THE FUNDAMENTALS OF
DUE PROCESS. 

THE DECISIONS IN THESE CASES WERE REACHED UNDER THE PRESSURES OF THE
CLOSING DAYS OF THE TERM.  SEE 351 U.S., AT 483-486.  HAVING BECOME
CONVINCED OVER THE SUMMER THAT THE GROUNDS ON WHICH THEY RESTED WERE
UNTENABLE, I MOVED AT THE OPENING OF THE 1956 TERM THAT THE CASES BE
REHEARD, BEING JOINED BY THE FOUR JUSTICES WHO HAD BEEN IN THE
MINORITY.  SEE 352 U.S. 901, 354 U.S. 1, 65-67.  (FN4)  UPON A
CONSOLIDATED REHEARING OF THE CASES, THE COURT'S ORIGINAL OPINIONS AND
THE JUDGMENTS OF CONVICTION WERE SET ASIDE, A MAJORITY OF THE COURT
THEN HOLDING THAT WHETHER THE CONVICTIONS SHOULD STAND OR FALL DEPENDED
SOLELY ON THE ART. I, SEC. 8, CL. 14 POWER, AND THAT SUCH POWER COULD
NOT BE CONSTITUTIONALLY APPLIED IN THOSE CASES.  REID V. COVERT, 354
U.S. 1.  THERE WAS, HOWEVER, NO OPINION FOR THE COURT.  FOUR JUSTICES
JOINED IN AN OPINION BROADLY HOLDING THAT "CIVILIANS" CAN NEVER BE
CRIMINALLY TRIED BY MILITARY COURTS IN TIMES OF PEACE, ID., AT 3-41. 
(FN5)  TWO JUSTICES CONCURRED SPECIALLY IN THE RESULT, ON THE NARROW
GROUND THAT ARTICLE 2(11) COULD NOT BE SO APPLIED TO CIVILIAN SERVICE
DEPENDENTS CHARGED WITH CAPITAL OFFENSES, EXPLICITLY RESERVING
JUDGMENT, HOWEVER, AS TO WHETHER NONMILITARY PERSONNEL CHARGED WITH
OTHER THAN CAPITAL OFFENSES COULD BE SUBJECTED TO SUCH TRIALS.  (FN6)
ID., AT 41-64, 65-78.  TWO JUSTICES DISSENTED, ADHERING TO THE GROUNDS
EXPRESSED IN THE EARLIER MAJORITY OPINIONS.  (FN7)  ID., AT 78.  AND
ONE JUSTICE DID NOT PARTICIPATE IN THE CASES.  (FN8) 

THUS THE ONLY ISSUE THAT SECOND COVERT ACTUALLY DECIDED WAS THAT
ARTICLE 2(11) COULD NOT BE CONSTITUTIONALLY APPLIED TO CIVILIAN SERVICE
DEPENDENTS CHARGED WITH CAPITAL OFFENSES.  NEVERTHELESS, DESPITE THE
WIDE DIFFERENCES OF VIEWS BY WHICH THIS PARTICULAR RESULT WAS REACHED -
NONE OF WHICH COMMANDED THE ASSENT OF A MAJORITY OF THE COURT - COVERT
IS NOW REGARDED AS ESTABLISHING THAT NONMILITARY PERSONNEL ARE NEVER
WITHIN THE REACH OF THE ARTICLE I POWER IN TIMES OF PEACE.  ON THIS
FAULTY VIEW OF THE CASE, IT IS CONSIDERED THAT COVERT CONTROLS THE
ISSUES PRESENTLY BEFORE US.  APART FROM THAT VIEW I THINK IT FAIR TO
SAY DIFFERENT RESULTS MIGHT WELL HAVE BEEN REACHED IN THE THREE
NONCAPITAL CASES NOW UNDER CONSIDERATION.  WITHOUT NEEDLESSLY
TRAVERSING GROUND ALREADY COVERED IN MY SEPARATE OPINION IN COVERT,
ID., AT 67-78, I SHALL GIVE MY REASONS FOR BELIEVING THAT WHILE THE
RESULT REACHED BY THE COURT IN THE CAPITAL CASE IS RIGHT, ITS DECISIONS
IN THE NONCAPITAL CASES ARE WRONG. 

FIRST.  THE COURT'S VIEW OF THE EFFECT OF COVERT IN THESE NONCAPITAL
CASES STEMS FROM THE BASIC PREMISE THAT ONLY PERSONS OCCUPYING A
MILITARY "STATUS" ARE WITHIN THE SCOPE OF THE ART. I, SEC. 8, CL. 14
POWER.  THE JUDGMENT IN COVERT HAVING DECIDED THAT CIVILIAN SERVICE
DEPENDENTS WERE NOT WITHIN THE REACH OF THAT POWER IN CAPITAL CASES, IT
IS SAID TO FOLLOW THAT SUCH DEPENDENTS, AND PRESUMABLY ALL OTHER
"CIVILIANS," MAY ALSO NOT BE TRIED BY COURTS-MARTIAL IN NONCAPITAL
CASES; THIS BECAUSE NEITHER THE STATUTE NOR ARTICLE I MAKES EXCERICSE
OF THE POWER TURN UPON THE NATURE OF THE OFFENSE INVOLVED. 

I THINK THE "STATUS" PREMISE ON WHICH THE COURT HAS PROCEEDED IS
UNSOUND.  ARTICLE I, SEC. 8, CL. 14, SPEAKS NOT IN NARROW TERMS OF
SOLDIERS AND SAILORS, BUT BROADLY GIVES CONGRESS POWER TO PRESCRIBE
"RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL
FORCES."  (FN9)  THIS POWER MUST BE READ IN CONNECTION WITH CLAUSE 18
OF THE SAME ARTICLE, AUTHORIZING CONGRESS: 

"TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING
INTO EXECUTION THE FOREGOING POWERS, AND ALL OTHER POWERS VESTED BY
THIS CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES, OR IN ANY
DEPARTMENT OR OFFICER THEREOF." 

THUS READ, THE POWER RESPECTING THE LAND AND NAVAL FORCES
ENCOMPASSES, IN MY OPINION, ALL THAT CONGRESS MAY APPROPRIATELY DEEM
"NECESSARY" FOR THEIR GOOD ORDER.  IT DOES NOT AUTOMATICALLY EXCLUDE
THE REGULATION OF NONMILITARY PERSONNEL. 

I THINK IT IMPERMISSIBLE TO CONCLUDE, AS SOME OF MY BRETHREN HAVE
INDICATED ON AN EARLIER OCCASION (SEE SECOND COVERT, SUPRA, AT 20-22),
AND AS THE COURT NOW HOLDS, ANTE, P. 248, THAT THE NECESSARY AND PROPER
CLAUSE MAY NOT BE RESORTED TO IN JUDGING CONSTITUTIONALITY IN CASES OF
THIS TYPE.  THE CLAUSE, ITSELF A PART OF ART. I, SEC. 8, IN WHICH THE
POWER TO REGULATE THE ARMED FORCES IS ALSO FOUND, APPLIES NO LESS TO
THAT POWER THAN IT DOES TO THE OTHER SEC. 8 CONGRESSIONAL POWERS, AND
INDEED IS TO BE READ "AS AN INTEGRAL PART OF EACH" SUCH POWER.  SECOND
COVERT, SUPRA, AT 43 (CONCURRING OPINION OF FRANKFURTER, J.).  AS MR.
JUSTICE BRANDEIS PUT IT IN JACOB RUPPERT V. CAFFEY, 251 U.S. 264, AT
300-301: 

"WHETHER IT BE FOR PURPOSES OF NATIONAL DEFENSE, OR FOR THE PURPOSE
OF ESTABLISHING POST OFFICES AND POST ROADS OR FOR THE PURPOSE OF
REGULATING COMMERCE AMONG THE SEVERAL STATES CONGRESS HAS THE POWER 'TO
MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO
EXECUTION' THE DUTY SO REPOSED IN THE FEDERAL GOVERNMENT.  WHILE THIS
IS A GOVERNMENT OF ENUMERATED POWERS IT HAS FULL ATTRIBUTES OF
SOVEREIGNTY WITHIN THE LIMITS OF THOSE POWERS.  IN RE DEBS, 158 U.S.
564.  SOME CONFUSION OF THOUGHT MIGHT PERHAPS HAVE BEEN AVOIDE, IF,
INSTEAD OF DISTINGUISHING BETWEEN POWERS BY THE TERMS EXPRESS AND
IMPLIED, THE TERMS SPECIFIC AND GENERAL HAD BEEN USED.  FOR THE POWER
CONFERRED BY CLAUSE 18 OF SEC. 8 'TO MAKE ALL LAWS WHICH SHALL BE
NECESSARY AND PROPER FOR CARRYING INTO EXECUTION' POWERS SPECIFICALLY
ENUMERATED IS ALSO AN EXPRESS POWER  ...  ." 

SEE ALSO UNITED STATES V. CLASSIC, 313 U.S. 299, 320. 

OF COURSE, THE NECESSARY AND PROPER CLAUSE CANNOT BE USED TO "EXPAND"
POWERS WHICH ARE OTHERWISE CONSTITUTIONALLY LIMITED, BUT THAT IS ONLY
TO SAY THAT WHEN AN ASSERTED POWER IS NOT APPROPRIATE TO THE EXERCISE
OF AN EXPRESS POWER, TO WHICH ALL "NECESSARY AND PROPER" POWERS MUST
RELATE, THE ASSERTED POWER IS NOT A "PROPER" ONE.  BUT TO SAY, AS THE
COURT DOES NOW, THAT THE NECESSARY AND PROPER CLAUSE "IS NOT ITSELF A
GRANT OF POWER" IS TO DISREGARD CLAUSE 18 AS ONE OF THE ENUMERATED
POWERS OF SEC. 8 OF ART. I. 

VIEWING CONGRESS' POWER TO PROVIDE FOR THE GOVERNING OF THE ARMED
FORCES IN CONNECTION WITH THE NECESSARY AND PROPER CLAUSE, IT BECOMES
APPARENT, I BELIEVE, THAT A PERSON'S "STATUS" WITH REFERENCE TO THE
MILITARY ESTABLISHMENT IS BUT ONE, AND NOT ALONE THE DETERMINATIVE,
FACTOR IN JUDGING THE CONSTITUTIONALITY OF A PARTICULAR EXERCISE OF
THAT POWER.  BY THE SAME TOKEN, THE MAJOR PREMISE ON WHICH THE COURT
ASCRIBES TO COVERT A CONTROLLING EFFECT IN THESE NONCAPITAL CASES
DISAPPEARS. 

SECOND.  IT IS FURTHER SUGGESTED THAT THE DIFFERENCE BETWEEN CAPITAL
AND NONCAPITAL OFFENSES IS NOT CONSTITUTIONALLY SIGNIFICANT, AND THAT
IF ARTICLE 2(11) OF THE MILITARY CODE, AS APPLIED TO NONMILITARY
PERSONS, IS UNCONSTITUTIONAL IN ONE CASE, IT EQUALLY IS SO IN THE
OTHER.  I THINK THIS PASSES OVER TOO LIGHTLY THE AWESOME FINALITY OF A
CAPITAL CASE, A FACTOR WHICH IN OTHER INSTANCES HAS BEEN REFLECTED BOTH
IN THE CONSTITUTIONAL ADJUDICATIONS OF THIS COURT AND IN THE SPECIAL
PROCEDURAL SAFEGUARDS WHICH HAVE BEEN THROWN AROUND THOSE CHARGED WITH
SUCH CRIMES. 

THUS, THIS COURT HAS HELD THAT THE FOURTEENTH AMENDMENT REQUIRES A
STATE TO APPOINT COUNSEL FOR AN INDIGENT DEFENDANT IN A CAPITAL CASE,
POWELL V. ALABAMA, 287 U.S. 45, WHEREAS IN NONCAPITAL CASES A DEFENDANT
HAS NO SUCH ABSOLUTE RIGHT TO COUNSEL, BETTS V. BRADY, 316 U.S. 455. 
AGAIN, THE CONGRESS IN FIRST DEGREE MURDER CASES HAS IN EFFECT PUT
INFLICTION OF THE DEATH PENALTY IN THE HANDS OF THE JURY, RATHER THAN
THE JUDGE, 18 U.S.C. SEC. 1111(B); SEE ALSO 60 STAT. 766, AS AMENDED,
42 U.S.C. SEC. 2274(A), AND VARIOUS STATES HAVE SIMILAR STATUTES. 
(FN10)  FURTHER ILLUSTRATIONS OF THE SAME CONCERN ABOUT CAPITAL CASES
ARE THE PROHIBITION ON ACCEPTANCE OF PLEAS OF GUILTY IN SUCH CASES,
(FN11) AND, IN THE APPELLATE FIELD, PROVISIONS FOR MANDATORY OR
AUTOMATIC APPEALS FROM SUCH CONVICTIONS.  (FN12) 

IN MY COVERT OPINION I POINTED OUT THAT THE GOVERNMENT ITSELF HAD IN
EFFECT ACKNOWLEDGED THAT BECAUSE OF THE GRAVITY OF THE OFFENSE, A
TREASON CASE AGAINST A NONSOLDIER IN TIME OF PEACE COULD NOT
CONSTITUTIONALLY BE HELD TO BE WITHIN THE OTHERWISE UNLIMITED SCOPE OF
ARTICLE 2(11); AND I EXPRESSED THE VIEW THAT THE SAME CONSTITUTIONAL
LIMITATION SHOULD OBTAIN WHENEVER THE DEATH PENALTY IS INVOLVED.  354
U.S., AT 77.  I SEE NO REASON FOR RETREATING FROM THAT CONCLUSION.  THE
VIEW THAT WE MUST HOLD THAT NONMILITARY PERSONNEL ABROAD ARE SUBJECT TO
PEACETIME COURT-MARTIAL JURISDICTION EITHER FOR ALL OFFENSES, OR FOR
NONE AT ALL, REPRESENTS AN INEXORABLE APPROACH TO CONSTITUTIONAL
ADJUDICATION TO WHICH I CANNOT SUBSCRIBE.    IT IS ONE THING TO HOLD
THAT NONMILITARY PERSONNEL SITUATED AT OUR FOREIGN BASES MAY BE TRIED
ABROAD BY COURTS-MARTIAL IN TIMES OF PEACE FOR NONCAPITAL OFFENSES, BUT
QUITE ANOTHER TO SAY THAT THEY MAY BE SO TRIED WHERE LIFE IS AT STAKE. 
IN THE LATTER SITUATION I DO NOT BELIEVE THAT THE NECESSARY AND PROPER
CLAUSE, WHICH ALONE IN CASES LIKE THIS BRINGS THE EXCEPTIONAL ARTICLE I
JURISDICTION INTO PLAY, CAN PROPERLY BE TAKEN AS JUSTIFYING THE TRIAL
OF NONMILITARY PERSONNEL WITHOUT THE FULL PROTECTIONS OF AN ARTICLE III
COURT.  SEE 354 U.S., AT 77.  BEFORE THE CONSTITUTIONAL EXISTENCE OF
SUCH A POWER CAN BE FOUND, FOR ME A MUCH MORE PERSUASIVE SHOWING WOULD
BE REQUIRED THAT CONGRESS HAD GOOD REASON FOR CONCLUDING THAT SUCH A
COURSE IS NECESSARY TO THE PROPER MAINTENANCE OF OUR MILITARY
ESTABLISHMENT ABROAD THAN HAS BEEN MADE IN ANY OF THE CASES OF THIS
KIND WHICH HAVE THUS FAR COME BEFORE THE COURT. 

THIRD.  I REVERT TO THE COURT'S "STATUS" APPROACH TO THE POWER OF
CONGRESS TO MAKE RULES FOR GOVERNING THE ARMED FORCES.  HOW LITTLE OF
SUBSTANCE THAT VIEW HOLDS APPEARS WHEN IT IS POINTED OUT THAT HAD THOSE
INVOLVED IN THESE CASES BEEN INDUCTED INTO THE ARMY, THOUGH OTHERWISE
MAINTAINING THEIR SAME CAPACITIES, IT WOULD PRESUMABLY HAVE BEEN HELD
THAT THEY WERE ALL FULLY SUBJECT TO ARTICLE 2(11).  YET EXCEPT FOR THIS
FORMALITY THEIR REAL "STATUS" WOULD HAVE REMAINED THE SAME. 

ALTHOUGH IT WAS RECOGNIZED IN THE SECOND COVERT CASE THAT A PERSON
MIGHT BE SUBJECT TO ARTICLE 2(11) "EVEN THOUGH HE HAD NOT FORMALLY BEEN
INDUCTED INTO THE MILITARY OR DID NOT WEAR A UNIFORM," 354 U.S., AT 23,
I THINK THAT DRAWING A LINE OF DEMARCATION BETWEEN THOSE WHO ARE
CONSTITUTIONALLY SUBJECT TO THE ART. I, SEC. 8, CL. 14 POWER, AND THOSE
WHO ARE NOT, DEFIES DEFINITION IN TERMS OF MILITARY "STATUS."  I
BELIEVE THAT THE TRUE ISSUE ON THIS ASPECT OF ALL SUCH CASES CONCERNS
THE CLOSENESS OR REMOTENESS OF THE RELATIONSHIP BETWEEN THE PERSON
AFFECTED AND THE MILITARY ESTABLISHMENT.  IS THAT RELATIONSHIP CLOSE
ENOUGH SO THAT CONGRESS MAY, IN LIGHT OF ALL THE FACTORS INVOLVED,
APPROPRIATELY DEEM IT "NECESSARY" THAT THE MILITARY BE GIVEN
JURISDICTION TO DEAL WITH OFFENSES COMMITTED BY SUCH PERSONS? 

I THINK THAT SUCH RELATIONSHIP HERE WAS CLOSE ENOUGH, AND IN THIS
RESPECT CAN DRAW NO CONSTITUTIONAL DISTINCTION BETWEEN THE ARMY WIFE IN
NO. 22 AND THE CIVILIAN SERVICE EMPLOYEES IN THE OTHER CASES.  THOUGH
THEIR PRESENCE AT THESE ARMY OVERSEAS BASES WAS FOR DIFFERENT REASONS
AND PURPOSES, THE RELATIONSHIP OF BOTH TO THE MILITARY COMMUNITY WAS
SUCH AS TO RENDER THEM CONSTITUTIONALLY AMENABLE TO THE ARTICLE 2(11)
JURISDICTION.  BY THE SAME TOKEN, BEING OF THE VIEW THAT THE
CONSTITUTIONAL EXISTENCE OF SUCH JURISDICTION HAS NOT BEEN SHOWN AS TO
CIVILIAN SERVICE DEPENDENTS CHARGED WITH CAPITAL OFFENSES, I AM EQUALLY
OF THE OPINION THAT IT CANNOT BE FOUND WITH RESPECT TO CIVILIAN SERVICE
EMPLOYEES SIMILARLY CHARGED.  FOR THESE REASONS I CONCUR IN THE
JUDGMENT OF THE COURT IN NO. 58. 

FOURTH.  THE OTHER FACTORS WHICH MUST BE WEIGHED IN JUDGING THE
CONSTITUTIONALITY OF ARTICLE 2(11) AS APPLIED TO NONCAPITAL CASES HAVE,
IN MY OPINION, BEEN ADEQUATELY SATISFIED.  I NEED NOT ADD TO WHAT WAS
SAID IN MY CONCURRING OPINION IN COVERT, 354 U.S., AT 70-73, 76-77,
WITH REFERENCE TO THE MATTERS WHICH ORIGINALLY WERE ADUMBRATED BY MY
BROTHER CLARK IN HIS DISSENT IN THE SAME CASE.  ID., AT 83-88.  NOTHING
IN THE SUPPLEMENTAL HISTORICAL DATA RESPECTING COURTS-MARTIAL WHICH
HAVE BEEN PRESENTED IN THESE CASES PERSUADES ME THAT WE WOULD BE
JUSTIFIED IN HOLDING THAT CONGRESS' EXERCISE OF ITS CONSTITUTIONAL
POWERS IN THIS AREA WAS WITHOUT A RATIONAL AND APPROPRIATE BASIS, SO
FAR AS NONCAPITAL CASES ARE CONCERNED.  ALTHOUGH IT IS NOW SUGGESTED
THAT THE PROBLEM WITH WHICH CONGRESS SOUGHT TO DEAL IN ARTICLE 2(11)
MAY BE MET IN OTHER WAYS, I SUBMIT THAT ONCE IT IS SHOWN THAT CONGRESS'
CHOICE WAS NOT EXCLUDED BY A RATIONAL JUDGMENT CONCERNED WITH THE
PROBLEM IT IS BEYOND OUR COMPETENCE TO FIND CONSTITUTIONAL COMMAND FOR
OTHER PROCEDURES. 

I THINK IT UNFORTUNATE THAT THIS COURT SHOULD HAVE FOUND THE
CONSTITUTION LACKING IN ENABLING CONGRESS TO COPE EFFECTIVELY WITH
MATTERS WHICH ARE SO INTERTWINED WITH BROADER PROBLEMS THAT HAVE BEEN
ENGENDERED BY PRESENT DISTURBED WORLD CONDITIONS.  THOSE PROBLEMS ARE
FRAUGHT WITH MANY FACTORS THAT THIS COURT IS ILL-EQUIPPED TO ASSESS,
AND INVOLVE IMPORTANT NATIONAL CONCERNS INTO WHICH WE SHOULD BE
RELUCTANT TO ENTER EXCEPT UNDER THE CLEAREST SORT OF CONSTITUTIONAL
COMPULSION.  THAT SUCH COMPULSION IS LACKING HERE HAS BEEN AMPLY
DEMONSTRATED BY THE CHEQUERED HISTORY OF THE PAST CASES OF THIS KIND IN
THE COURT.  TODAY'S DECISIONS ARE THE MORE REGRETTABLE BECAUSE THEY ARE
BOUND TO DISTURB DELICATE ARRANGEMENTS WITH MANY FOREIGN COUNTRIES, AND
MAY RESULT IN OUR HAVING TO RELINQUISH TO OTHER NATIONS WHERE UNITED
STATES FORCES ARE STATIONED A SUBSTANTIAL PART OF THE JURISDICTION NOW
RETAINED OVER AMERICAN PERSONNEL UNDER THE STATUS OF FORCES
AGREEMENTS. 

I WOULD REVERSE IN NOS. 22, 21, AND 58, AND AFFIRM IN NO. 37. 

FN1  TO WIT:  "THAT PART OF ALASKA EAST OF LONGITUDE 172 DEGREES
WEST, THE CANAL ZONE, THE MAIN GROUP OF THE HAWAIIAN ISLANDS, PUERTO
RICO, AND THE VIRGIN ISLANDS." 

FN2  IN NO. 37 THE GOVERNMENT, ALTERNATIVELY, RELIES ON THE "WAR
POWER," THE OFFENSE HAVING BEEN COMMITTED IN THE AMERICAN OCCUPIED ZONE
OF WEST BERLIN.  CF. MADSEN V. KINSELLA, 343 U.S. 341.  APART FROM
WHETHER OR NOT THE CONTENTION IS AVAILABLE IN LIGHT OF THE COURSE OF
THE PROCEEDINGS BELOW, I DO NOT REACH THAT ISSUE. 

FN3  IN ADDITION TO MYSELF, THE MAJORITY OPINIONS, WRITTEN BY MR.
JUSTICE CLARK, WERE JOINED BY JUSTICES REED, BURTON AND MINTON.  351
U.S. 470 AND 487.  THE CHIEF JUSTICE AND JUSTICES BLACK AND DOUGLAS
DISSENTED.  ID., AT 485.  MR. JUSTICE FRANKFURTER FILED A RESERVATION. 
ID., AT 481. 

FN4  THE THREE REMAINING MEMBERS OF THE ORIGINAL MAJORITY WERE IN
DISSENT, 352 U.S., AT 902, MR. JUSTICE MINTON HAVING MEANWHILE
RETIRED.  MR. JUSTICE BRENNAN, HIS SUCCESSOR, DID NOT PARTICIPATE ON
THE MOTION. 

FN5  THE CHIEF JUSTICE, MR. JUSTICE BLACK (THE WRITER OF THE
OPINION), AND JUSTICES DOUGLAS AND BRENNAN. 

FN6  MR. JUSTICE FRANKFURTER AND MYSELF. 

FN7  JUSTICES CLARK AND BURTON. 

FN8  MR. JUSTICE WHITTAKER, SUCCEEDING MR. JUSTICE REED WHO HAD
MEANWHILE RETIRED. 

FN9  THE FIFTH AMENDMENT EXCEPTS FROM ITS PROTECTION "CASES ARISING,"
NOT PERSONS, "IN THE LAND OR NAVAL FORCES." 

FN10  E.G., MASS. GEN. LAWS ANN., C. 265, SEC. 2; MISS.  CODE ANN.,
SEC. 2536; N.H. REV.  STAT. ANN., C. 585, SEC. 4. 

FN11  E.G., N.Y. CODE CRIM. PROC., SEC. 332. 

FN12  E.G., CAL PENAL CODE, SEC. 1239(B); ORE.  REV.  STAT., SEC.
138.810. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE STEWART JOINS,
CONCURRING IN PART AND DISSENTING IN PART.* 

*REPORTER'S NOTE:  THIS OPINION APPLIES ALSO TO NO. 58, GRISHAM V.
HAGAN, POST, P. 278; NO. 21, MCELROY V. GUAGLIARDO, POST, P. 281; AND
NO. 37, WILSON V. BOHLENDER, POST, P. 281. 

IN NO. 22, ONE JOANNA DIAL (WHOSE CAUSE IS PROSECUTED HERE BY
RESPONDENT SINGLETON), AN AMERICAN CIVILIAN WIFE ACCOMPANYING HER
HUSBAND, AN AMERICAN SOLDIER SERVING IN GERMANY, WAS THERE TRIED AND
CONVICTED IN 1957 BY A GENERAL COURT-MARTIAL FOR MANSLAUGHTER IN
VIOLATION OF ARTICLE 119 OF THE UNIFORM CODE OF MILITARY JUSTICE, (FN1)
10 U.S.C. SEC. 919, AND WAS SENTENCED TO IMPRISONMENT FOR A TERM OF
THREE YEARS.  IN NO. 21, RESPONDENT GUAGLIARDO, AN AMERICAN CIVILIAN
EMPLOYED AS AN ELECTRICAL LINEMAN BY THE UNITED STATES AIR FORCE AT
NOUASSEUR AIR DEPOT IN MOROCCO, WAS THERE TRIED AND CONVICTED IN 1957
BY A GENERAL COURT-MARTIAL FOR CONSPIRING TO COMMIT LARCENY FROM THE
STORES OF THE AIR FORCE IN VIOLATION OF ARTICLE 81 OF THE CODE, 10
U.S.C. SEC. 881, AND WAS SENTENCED TO IMPRISONMENT FOR A TERM OF THREE
YEARS.  IN NO. 37, PETITIONER WILSON, AN AMERICAN CIVILIAN EMPLOYED AS
AN AUDITOR BY THE UNITED STATES ARMY IN BERLIN, GERMANY, WAS THERE
TRIED AND CONVICTED IN 1956 BY A GENERAL COURT-MARTIAL FOR THREE ACTS
OF SODOMY COMMITTED UPON MILITARY PERSONNEL IN VIOLATION OF ARTICLE 134
OF THE CODE, 50 U.S.C. SEC. 728, AND WAS SENTENCED TO IMPRISONMENT FOR
A TERM OF FIVE YEARS.  IN NO. 58, PETITIONER GRISHAM, AN AMERICAN
CIVILIAN EMPLOYED AS A COST ACCOUNTANT BY THE UNITED STATES ARMY CORPS
OF ENGINEERS IN ORLEANS, FRANCE, WAS THERE TRIED BY A GENERAL COURT
MARTIAL FOR THE CAPITAL OFFENSE OF PREMEDITATED MURDER AND CONVICTED OF
THE LESSER INCLUDED OFFENSE OF UNPREMEDITATED MURDER IN VIOLATION OF
ARTICLE 118 OF THE CODE, 50 U.S.C. SEC. 712, AND WAS SENTENCED, AS
REDUCED BY CLEMENCY ACTION OF THE SECRETARY OF THE ARMY, IN 1957, TO
IMPRISONMENT FOR A TERM OF 35 YEARS. 

EACH OF THE ACCUSED PERSONS OBJECTED TO TRIAL BY COURT-MARTIAL UPON
THE GROUND THAT IT HAD NO JURISDICTION TO TRY HIM.  AFTER THEIR
CONVICTIONS, SENTENCES, AND RETURN TO THE UNITED STATES, EACH SOUGHT
RELEASE BY HABEAS CORPUS IN A FEDERAL DISTRICT COURT.  TWO WERE
SUCCESSFUL - SINGLETON (164 F. SUPP. 707, D.C.S.D.W. VA.)  AND
GUAGLIARDO (104 U.S. APP. D.C. 112, 259 F.2D 927) - BUT THE OTHER TWO
WERE NOT - WILSON (167 F. SUPP.  791, D.C. COLO.) AND GRISHAM (261 F.2D
204, C.A. 3D CIR.) - AND THE FOUR CASES WERE BROUGHT HERE FOR REVIEW. 

THESE CASES FALL INTO THREE CATEGORIES.  NO. 22, THE SINGLETON CASE,
INVOLVES A CIVILIAN DEPENDENT TRIED FOR A NONCAPITAL OFFENSE; NOS. 21
AND 37, THE GUAGLIARDO AND WILSON CASES, INVOLVE CIVILIAN EMPLOYEES OF
THE MILITARY TRIED FOR NONCAPITAL OFFENSES, AND NO. 58, THE GRISHAM
CASE, INVOLVES A CIVILIAN EMPLOYEE OF THE MILITARY TRIED FOR A CAPITAL
OFFENSE.  EACH CLAIMS THAT, BEING A CIVILIAN, HE WAS NOT
CONSTITUTIONALLY SUBJECT TO TRIAL BY COURT-MARTIAL BUT, INSTEAD, COULD
CONSTITUTIONALLY BE TRIED BY THE UNITED STATES ONLY IN AN ARTICLE III
COURT, UPON AN INDICTMENT OF A GRAND JURY UNDER THE FIFTH AMENDMENT,
AND BY AN IMPARTIAL PETIT JURY UNDER THE SIXTH AMENDMENT TO THE
CONSTITUTION. 

THE CASES PRESENT GRAVE QUESTIONS AND, FOR ME AT LEAST, ONES OF GREAT
DIFFICULTY.  OUR RECENT DECISION IN REID V. COVERT, 354 U.S. 1, MAKES
CLEAR THAT THE UNITED STATES CONSTITUTION EXTENDS BEYOND OUR
TERRITORIAL BOUNDARIES AND REACHES TO AND APPLIES WITHIN ALL FOREIGN
AREAS WHERE JURISDICTION IS OR MAY BE EXERCISED BY THE UNITED STATES
OVER ITS CITIZENS - THAT WHEN THE UNITED STATES PROCEEDS AGAINST ITS
CITIZENS ABROAD "IT CAN ONLY ACT IN ACCORDANCE WITH ALL THE LIMITATIONS
IMPOSED BY THE CONSTITUTION."  354 U.S., AT 6. 

THE BROAD QUESTION PRESENTED, THEN, IS WHETHER OUR CONSTITUTION
AUTHORIZES TRIALS AND PUNISHMENTS BY COURTS-MARTIAL IN FOREIGN LANDS IN
TIME OF PEACE OF CIVILIAN DEPENDENTS "ACCOMPANYING" MEMBERS OF THE
ARMED FORCES AND OF CIVILIANS "EMPLOYED BY" THE ARMED FORCES, FOR
CONDUCT MADE AN OFFENSE BY THE UNIFORM CODE OF MILITARY JUSTICE,
WHETHER CAPITAL OR NONCAPITAL IN CHARACTER. 

THE SOURCE OF THE POWER, IF IT EXISTS, IS ART. I, SEC. 8, CL. 14, OF
THE CONSTITUTION.  (FN2)  IT PROVIDES: 

"THE CONGRESS SHALL HAVE POWER  ... . 

"TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND
NAVAL FORCES." 

PURSUANT TO THAT GRANT OF POWER, CONGRESS BY THE ACT OF AUGUST 10,
1956, C. 1041, 70A STAT.  36 ET SEQ. - REVISING THE PRE-EXISTING
ARTICLES OF WAR - ENACTED THE UNIFORM CODE OF MILITARY JUSTICE. 
ARTICLE 2(11) OF THAT CODE PROVIDES, IN PERTINENT PART: 

"THE FOLLOWING PERSONS ARE SUBJECT TO THIS CHAPTER: 

     *         *         *         *         * 

"(11)  SUBJECT TO ANY TREATY OR AGREEMENT TO WHICH THE UNITED STATES
IS OR MAY BE A PARTY OR TO ANY ACCEPTED RULE OF INTERNATIONAL LAW,
PERSONS SERVING WITH, EMPLOYED BY, OR ACCOMPANYING THE ARMED FORCES
OUTSIDE THE UNITED STATES  ...  ." 

IT IS NOT DISPUTED THAT EXISTING TREATIES WITH EACH OF THE FOREIGN
SOVEREIGNTIES, WITHIN WHOSE TERRITORY THE ALLEGED OFFENSES OCCURRED,
PERMITTED THE ARMED FORCES OF THE UNITED STATES TO PUNISH OFFENSES
AGAINST THE LAWS OF THE UNITED STATES COMMITTED BY PERSONS EMBRACED BY
ARTICLE 2(11) OF THE CODE.  ARGUMENTS CHALLENGING THE REASONABLENESS OF
ARTICLE 2(11) ARE PRESENTLY PUT ASIDE, FOR IF CLAUSE 14 DOES NOT GRANT
TO CONGRESS THE POWER TO PROVIDE FOR THE COURT-MARTIAL TRIAL AND
PUNISHMENT OF THE PERSONS EMBRACED IN ARTICLE 2(11) OF THE CODE IT MAY
NOT DO SO, HOWEVER REASONABLE.  REID V. COVERT, SUPRA, 354 U.S., AT 74
(CONCURRING OPINION). 

DID CLAUSE 14 EMPOWER CONGRESS TO ENACT ARTICLE 2(11) OF THE CODE? 
CERTAIN ASPECTS OF THAT BROAD QUESTION HAVE RECENTLY BEEN DETERMINED IN
REID V. COVERT, SUPRA, AND, THOUGH NOT A COURT OPINION, I CONSIDER THAT
DECISION TO BE BINDING UPON ME.  (FN3)  IN THAT CASE FOUR MEMBERS OF
THE COURT HELD THAT ARTICLE 2(11) OF THE CODE CANNOT CONSTITUTIONALLY
BE APPLIED TO CIVILIAN DEPENDENTS "ACCOMPANYING" MEMBERS OF THE ARMED
FORCES OUTSIDE THE UNITED STATES IN TIME OF PEACE, BECAUSE, IN THEIR
VIEW, TO DO SO WOULD VIOLATE ART. III, SEC.  2, AND THE FIFTH AND SIXTH
AMENDMENTS OF THE CONSTITUTION; AND TWO MEMBERS OF THE COURT, IN
SEPARATE CONCURRING OPINIONS, AGREED WITH THAT RESULT, BUT ONLY WITH
RESPECT TO CAPITAL OFFENSES. 

LIKE MY BROTHER CLARK WHO WRITES FOR THE COURT TODAY, I AM UNABLE TO
FIND ANY BASIS IN THE CONSTITUTION TO SUPPORT THE VIEW THAT CONGRESS
MAY NOT CONSTITUTIONALLY PROVIDE FOR THE COURT-MARTIAL TRIAL AND
PUNISHMENT OF CIVILIAN DEPENDENTS FOR CAPITAL OFFENSES BUT MAY DO SO
FOR NONCAPITAL ONES.  CERTAINLY THERE IS NOTHING IN CLAUSE 14 THAT
CREATES ANY SUCH DISTINCTION OR LIMITATION.  LEGALISTICALLY AND
LOGICALLY, IT WOULD SEEM THAT THE QUESTION IS ONE OF STATUS OF THE
ACCUSED PERSON, AND THAT COURTS-MARTIAL EITHER DO OR DO NOT HAVE
JURISDICTION AND, HENCE, POWER TO TRY THE ACCUSED FOR ALL OFFENSES
AGAINST THE MILITARY LAW OR FOR NONE AT ALL.  SYMPATHETIC AS ONE MAY BE
TO CURTAILMENT OF THE AWESOME POWER OF COURTS-MARTIAL TO IMPOSE MAXIMUM
SENTENCES IN CAPITAL CASES, THE QUESTION, FOR ME AT LEAST, IS THE
PERHAPS COLD BUT PURELY LEGAL ONE OF CONSTITUTIONAL POWER.  THERE WOULD
SEEM TO BE NO DOUBT THAT CONGRESS MAY CONSTITUTIONALLY PRESCRIBE
GRADATIONS OF OFFENSES AND PUNISHMENTS IN MILITARY CASES.  THE QUESTION
IS SOLELY WHETHER CLAUSE 14 HAS GRANTED TO CONGRESS ANY POWER TO
PROVIDE FOR THE COURT-MARTIAL TRIAL AND PUNISHMENT OF CIVILIAN
DEPENDENTS "ACCOMPANYING," AND CIVILIANS "EMPLOYED BY," THE ARMED
FORCES AT MILITARY POSTS IN FOREIGN LANDS IN TIME OF PEACE.  IF IT HAS,
THEN CONGRESS HAS ACTED WITHIN ITS POWERS IN ENACTING ARTICLE 2(11) OF
THE CODE - OTHERWISE NOT.  INASMUCH AS SIX MEMBERS OF THE COURT HAVE
HELD IN COVERT THAT CONGRESS MAY NOT CONSTITUTIONALLY PROVIDE FOR THE
COURT-MARTIAL TRIAL AND PUNISHMENT OF CIVILIAN DEPENDENTS "ACCOMPANYING
THE ARMED FORCES" OVERSEAS IN PEACETIME IN CAPITAL CASES, AND BECAUSE I
CAN SEE NO CONSTITUTIONAL DISTINCTION BETWEEN CONGRESS' POWER TO
PROVIDE FOR THE COURT-MARTIAL PUNISHMENT OF CAPITAL OFFENSES, ON THE
ONE HAND, AND NONCAPITAL OFFENSES, ON THE OTHER HAND, I CONCLUDE THAT
THE HOLDING IN COVERT MEANS THAT CIVILIAN DEPENDENTS ACCOMPANYING THE
ARMED FORCES IN PEACETIME ARE NOT SUBJECT TO MILITARY POWER, AND THAT
IT REQUIRES AFFIRMANCE OF NO. 22, THE SINGLETON CASE. 

BUT EACH OF THE THREE OPINIONS SUPPORTING THE CONCLUSION REACHED IN
COVERT WAS AT PAINS TO LIMIT THE DECISION TO CIVILIAN DEPENDENTS.  "THE
WIVES, CHILDREN AND OTHER DEPENDENTS OF SERVICEMEN CANNOT BE PLACED IN
THAT CATEGORY OF BEING 'IN' THE ARMED SERVICES FOR PURPOSES OF CLAUSE
14, EVEN THOUGH THEY MAY BE ACCOMPANYING A SERVICEMAN ABROAD AT
GOVERNMENT EXPENSE AND RECEIVING OTHER BENEFITS FROM THE GOVERNMENT." 
354 U.S., AT 23.  "THE MERE FACT THAT THESE WOMEN HAD GONE OVERSEAS
WITH THEIR HUSBANDS SHOULD NOT REDUCE THE PROTECTION THE CONSTITUTION
GIVES THEM."  354 U.S., AT 33.  SEE ALSO 354 U.S., AT 45 (CONCURRING
OPINION OF FRANKFURTER, J.), AND 354 U.S., AT 75-76 (CONCURRING OPINION
OF HARLAN, J.).  THE MAIN OPINION CAREFULLY POINTED OUT THAT "MRS. 
COVERT AND MRS. SMITH  ...  HAD NEVER BEEN EMPLOYED BY THE ARMY, HAD
NEVER SERVED IN THE ARMY IN ANY CAPACITY."  354 U.S., AT 32. 

THERE IS A MARKED AND CLEAR DIFFERENCE BETWEEN CIVILIAN DEPENDENTS
"ACCOMPANYING THE ARMED FORCES" AND CIVILIAN PERSONS "SERVING WITH OR
EMPLOYED BY" THE ARMED FORCES AT MILITARY POSTS IN FOREIGN LANDS.  THE
LATTER, NUMBERING MORE THAN 25,000 EMPLOYED AT UNITED STATES MILITARY
BASES LOCATED IN 63 COUNTRIES THROUGHOUT THE WORLD - MAINLY HIGHLY
TRAINED SPECIALISTS AND TECHNICIANS POSSESSING SKILLS NOT READILY
AVAILABLE TO THE ARMED FORCES - ARE ENGAGED IN PURELY MILITARY WORK -
AS IN THE CASE OF GUAGLIARDO, EMPLOYED AS AN ELECTRICAL LINEMAN BY THE
AIR FORCE TO CONSTRUCT AND MAINTAIN LINES OF COMMUNICATION AND AIRFIELD
LIGHTING APPARATUS AND EQUIPMENT, AS ALSO IN THE CASE OF WILSON, AN
AUDITOR EMPLOYED TO AUDIT THE ACCOUNTS OF THE UNITED STATES ARMY IN
BERLIN, AND AS IN THE CASE OF GRISHAM, EMPLOYED AS A COST ACCOUNTANT BY
THE UNITED STATES ARMY CORPS OF ENGINEERS TO ASSIST IN SETTING UP A
COST ACCOUNTING SYSTEM FOR THE BUILDING OF A LINE OF COMMUNICATIONS
FROM PARDEAU, FRANCE, TO KOSSALATER IN THE AMERICAN-OCCUPIED SECTION OF
GERMANY.  THESE CIVILIAN EMPLOYEES THUS PERFORM ESSENTIAL SERVICES FOR
THE MILITARY AND, IN DOING SO, ARE SUBJECT TO THE ORDERS, DIRECTION AND
CONTROL OF THE SAME MILITARY COMMAND AS THE "MEMBERS" OF THOSE FORCES;
AND, NOT INFREQUENTLY, MEMBERS OF THOSE FORCES WHO ARE ASSIGNED TO WORK
WITH AND ASSIST THOSE EMPLOYEES ARE SUBJECT TO THEIR DIRECTION AND
CONTROL.  THEY HAVE THE SAME CONTACT WITH, AND INFORMATION CONCERNING,
THE MILITARY OPERATIONS AS MEMBERS OF THOSE FORCES AND PRESENT THE SAME
SECURITY RISKS AND DISCIPLINARY PROBLEMS.  THEY ARE PAID FROM THE SAME
PAYROLL, AND HAVE THE SAME COMMISSARY, HOUSING, MEDICAL, DENTAL,
MAILING, TRANSPORTATION, BANKING, TAX-EXEMPTION, CUSTOMS, BORDER
CROSSING AND OTHER PRIVILEGES AS MEMBERS OF THE ARMED FORCES.  THEY ARE
SO INTERTWINED WITH THOSE FORCES AND MILITARY COMMUNITIES AS TO BE IN
EVERY PRACTICAL SENSE AN INTEGRAL PART OF THEM.  ON THE OTHER HAND,
CIVILIAN DEPENDENTS "ACCOMPANYING THE ARMED FORCES" PERFORM NO SERVICES
FOR THOSE FORCES, PRESENT DISSIMILAR SECURITY AND DISCIPLINARY
PROBLEMS, HAVE ONLY A FEW OF THE MILITARY PRIVILEGES, AND GENERALLY
STAND IN A VERY DIFFERENT RELATIONSHIP TO THOSE FORCES THAN THE
CIVILIAN EMPLOYEES.  NOR SHOULD THERE BE ANY CONFUSION ABOUT THE FACT
THAT THE MATERIALS FOUND IN COVERT TO BE "TOO EPISODIC, TOO MEAGER, TO
FORM A SOLID BASIS IN HISTORY, PRECEDING AND CONTEMPORANEOUS WITH THE
FRAMING OF THE CONSTITUTION, FOR CONSTITUTIONAL ADJUDICATION" (354
U.S., AT 64, CONCURRING OPINION), RELATED, AS DID THE WHOLE CASE, TO
"CIVILIAN DEPENDENTS IN PARTICULAR," IBID., NOT TO PERSONS EMPLOYED AT
FOREIGN MILITARY BASES TO DO ESSENTIAL MILITARY WORK.  AND I READILY
AGREE WITH THE COURT TODAY THAT UNDER THE SEVERABILITY CLAUSE IN THE
CODE, 70A STAT. 640, "  ... LEGAL EFFECT CAN BE GIVEN TO EACH CATEGORY
STANDING ALONE."  MCELROY V. GUAGLIARDO, POST, P. 281. 

DETERMINATION OF THE SCOPE OF THE POWERS INTENDED BY THE FRAMERS OF
THE CONSTITUTION TO BE GIVEN TO CONGRESS BY CLAUSE 14 REQUIRES AN
EXAMINATION INTO THE CUSTOMS, PRACTICES AND GENERAL POLITICAL CLIMATE
KNOWN TO THE FRAMERS AND EXISTING AT THAT TIME.  THE FIRST ARTICLES OF
WAR IN THIS COUNTRY WERE THOSE ADOPTED BY THE PROVISIONAL CONGRESS OF
MASSACHUSETTS BAY ON APRIL 5, 1775.  (FN4)  THOSE ARTICLES, INITIALLY
GOVERNING THE "CIVILIAN" ARMY OF FARMERS AND TRADESMEN - THE MINUTEMEN
WHO WERE FIRST INVOLVED IN THE WAR OF THE REVOLUTION, WERE MADE
APPLICABLE TO "ALL OFFICERS, SOLDIERS, AND OTHERS CONCERNED."  WINTHROP
(REPRINT 1920) 947.  ARTICLE 31 PROVIDED: 

"ALL SELLERS AND RETAILERS TO A CAMP, AND ALL PERSONS WHATSOEVER
SERVING WITH THE MASSACHUSETTS ARMY IN THE FIELD, THOUGH NOT ENLISTED
SOLDIERS, ARE TO BE SUBJECT TO THE ARTICLES, RULES AND REGULATIONS OF
THE MASSACHUSETTS ARMY."  ID., AT 950. 

THE AMERICAN REVOLUTIONARY ARMY INITIALLY WAS GOVERNED BY "ARTICLES
OF WAR" ADOPTED BY THE CONTINENTAL CONGRESS ON JUNE 30, 1775.  (FN5)
NINE OF THE ORIGINAL 69 ARTICLES PROVIDED FOR THE TRIAL BY COURT
MARTIAL OF PERSONS SERVING WITH THE ARMY BUT WHO WERE NOT SOLDIERS. 
THOSE ARTICLES WERE REVISED BY THE CONTINENTAL CONGRESS ON SEPTEMBER
20, 1776, (FN6) AND, SAVE FOR MINOR REVISIONS NOT HERE PERTINENT,
GOVERNED THE REVOLUTIONARY ARMY DURING THE REMAINDER OF THE WAR.  (FN7)
THIRTEEN OF THOSE ARTICLES PROVIDED FOR THE TRIAL BY COURT-MARTIAL OF
CIVILIANS SERVING WITH THE ARMY, SUCH AS "COMMISSARIES," (FN8)
"SUTTLERS," (FN9) "STORE-KEEPERS," (FN10) PERSONS "BELONGING TO THE
FORCES EMPLOYED IN THE SERVICE OF THE UNITED STATES," (FN11) AND
PERSONS "BELONGING TO THE FORCES OF THE UNITED STATES, EMPLOYED IN
FOREIGN PARTS."  (FN12)  IN 1778, A RELEVANT ADDITION WAS MADE.  IT
PROVIDED, IN PERTINENT PART:  "THAT EVERY PERSON EMPLOYED EITHER AS
COMMISSARY, QUARTER MASTER, FORAGE MASTER, OR IN ANY OTHER CIVIL
DEPARTMENT OF THE ARMY SHALL BE SUBJECT TO TRIAL BY COURT MARTIAL FOR
NEGLECT OF DUTY, OR OTHER OFFENSE COMMITTED IN THE EXECUTION OF THEIR
OFFICE  ... ."  JOURNALS OF THE CONTINENTAL CONGRESS, VOL. X, P. 72. 
WAGON DRIVERS "RECEIVING PAY OR HIRE" IN THE SERVICE OF THE ARTILLERY
WERE MADE SUBJECT TO COURT-MARTIAL JURISDICTION UNDER THE AMERICAN
ARTICLES OF 1775 (FN13) AND 1776.  (FN14)  THROUGHOUT THE REVOLUTIONARY
PERIOD, "DRIVERS" AND "ARTILLERY GUNNERS" WERE CIVILIAN EXPERTS. 
"HORSES OR OXEN, WITH HIRED CIVILIAN DRIVERS, FORMED THE TRANSPORT" FOR
THE CANNON.  MANUCY, ARTILLERY THROUGH THE AGES (G.P.O. 1949), P. 10. 
THEIR CIVILIAN STATUS IN WASHINGTON'S ARMY IS CONCRETELY SHOWN BY HIS
WRITINGS.  (FN15) 

THERE WAS A PROTRACTED CONTROVERSY IN THE CONSTITUTIONAL CONVENTION
OVER WHETHER THERE SHOULD BE A STANDING ARMY OR WHETHER THE MILITIA OF
THE VARIOUS STATES SHOULD BE THE SOURCE OF MILITARY POWER.  (FN16)
THERE WAS, ON THE ONE HAND, FEAR THAT A STANDING ARMY MIGHT BE
DETRIMENTAL TO LIBERTY; ON THE OTHER WAS THE NECESSITY OF AN ARMY FOR
THE PRESERVATION OF PEACE AND DEFENSE OF THE COUNTRY.  (FN17)  THE
PROBLEM OF PROVIDING FOR ESSENTIAL FORCES AND ALSO OF ASSURING
ENFORCEMENT OF THE UNANIMOUS DETERMINATION TO KEEP THEM IN SUBJECTION
TO THE CIVIL POWER WAS RESOLVED BY INSERTING THE PROVISION THAT NO
APPROPRIATION FOR THE SUPPORT OF THE ARMY COULD BE MADE FOR A LONGER
PERIOD THAN TWO YEARS (ART. I, SEC. 8, CL. 12), AND BY THE CONTINUANCE
OF THE MILITIA "ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." 
(ART.  I, SEC. 8, CLS. 15 AND 16, AND AMEND. II.)  (FN18) 

IT WAS IN THE LIGHT OF THIS BACKGROUND AND UPON THESE CONSIDERATIONS
THAT THE FRAMERS GAVE TO THE REPRESENTATIVES OF THE PEOPLE - THE
CONGRESS - THE POWER "TO MAKE RULES FOR THE GOVERNMENT AND REGULATION
OF THE LAND AND NAVAL FORCES."  CLAUSE 14.  THAT LANGUAGE WAS TAKEN
STRAIGHT FROM THE ARTICLES OF CONFEDERATION.  (FN19)  IN RESPECT
THERETO, HAMILTON SAID IN BELOFF, THE FEDERALIST, NO. XXIII, P. 111:

"THESE POWERS OUGHT TO EXIST WITHOUT LIMITATION; BECAUSE IT IS
IMPOSSIBLE TO FORESEE OR TO DEFINE THE EXTENT AND VARIETY OF NATIONAL
EXIGENCIES, AND THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH
MAY BE NECESSARY TO SATISFY THEM  ...  ."  (FN20) 

SOON AFTER THE FORMATION OF THE GOVERNMENT UNDER THE CONSTITUTION,
CONGRESS, BY THE ACT OF SETPEMBER 29, 1789, C. 25, SEC. 4, 1 STAT. 96,
ADOPTED THE ARTICLES OF WAR WHICH WERE ESSENTIALLY THE ARTICLES OF
1776.  BY THAT ACT, CONGRESS - IT IS ALMOST NECESSARY TO ASSUME -
APPROVED THE CONSISTENT PRACTICE OF EXERCISING MILITARY JURISDICTION
OVER CIVILIANS SERVING WITH THE ARMED FORCES, ALTHOUGH NOT ACTUALLY
SOLDIERS.  THE FIRST COMPLETE ENACTMENT OF THE ARTICLES OF WAR
SUBSEQUENT TO THE ADOPTION OF THE CONSTITUTION WAS THE ACT OF APRIL 10,
1806.  ARTICLE 60 OF THAT ACT (2 STAT. 366) RE-ENACTED THE PROVISIONS
FOR JURISDICTION OVER SUTLERS, RETAINERS, AND "ALL PERSONS WHOMSOEVER,
SERVING WITH THE ARMIES OF THE UNITED STATES IN THE FIELD, THOUGH NOT
ENLISTED SOLDIERS."  PROVISIONS SIMILAR TO ARTICLE 60 HAVE BEEN MADE IN
ALL SUBSEQUENT RE-ENACTMENTS OF THE MILITARY CODE:  IN THE REVISION OF
1874, REV. STAT. (2D ED. 1878), P. 236 (ARTICLE 63); IN 1916, 39 STAT.
651; IN 1920, 41 STAT. 787; AND IN THE ADOPTION OF THE UNIFORM CODE OF
MILITARY JUSTICE, 64 STAT. 109, CODIFIED IN 70A STAT. 37, 10 U.S.C.
SEC. 802(11). 

IN THE 1916 GENERAL REVISION OF THE ARTICLES OF WAR, CONGRESS USED
LANGUAGE WHICH IS SUBSTANTIALLY EQUIVALENT TO THAT OF ARTICLE 2(11),
(FN21) AND IT APPEARS IT DID NOT CONSIDER THAT ANY NEW CONCEPT WAS
BEING ADOPTED.  (FN22)  AFTER FULL CONSIDERATION BY AN EMINENT
COMMITTEE OF EXPERTS, CONGRESS, IN 1956 - RECOGNIZING THAT, ALTHOUGH WE
ARE NOT AT WAR, TURBULENT WORLD CONDITIONS REQUIRE LARGE MILITARY
COMMITMENTS THROUGHOUT THE WORLD - RE-ENACTED, IN ARTICLE 2(11), THE
PROVISION THAT CIVILIANS "SERVING WITH" THE ARMIES OF THE UNITED STATES
"OUTSIDE THE UNITED STATES" ARE SUBJECT TO MILITARY JURISDICTION, AND
IT REDEFINED THAT CONCEPT BY ADDING THE "EMPLOYED BY" CLASSIFICATION. 

CLAUSE 14 DOES NOT LIMIT CONGRESS TO THE MAKING OF RULES FOR THE
GOVERNMENT AND REGULATION OF "MEMBERS" OF THE ARMED FORCES.  RATHER, IT
EMPOWERS CONGRESS TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF
"THE LAND AND NAVAL FORCES."  THE TERM "LAND AND NAVAL FORCES" DOES NOT
APPEAR TO BE, NOR EVER TO HAVE BEEN TREATED AS, SYNONYMOUS WITH
"MEMBERS" OF THE ARMED SERVICES.  (FN23) 

VIEWED IN THE LIGHT OF ITS BIRTH AND HISTORY, IS IT NOT REASONABLY
CLEAR THAT THE GRANT OF CLAUSE 14, TO MAKE RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES, EMPOWERS CONGRESS TO GOVERN
AND REGULATE ALL PERSONS SO CLOSELY RELATED TO AND INTERTWINED WITH
THOSE FORCES AS TO MAKE THEIR GOVERNMENT ESSENTIAL TO THE GOVERNMENT OF
THOSE FORCES?  DO NOT CIVILIANS EMPLOYED BY THE ARMED FORCES AT BASES
IN FOREIGN LANDS TO DO ESSENTIAL WORK FOR THE MILITARY ESTABLISHMENT,
SUCH AS WAS BEING DONE BY RESPONDENT GUAGLIARDO AND PETITIONERS WILSON
AND GRISHAM, OCCUPY THAT STATUS AND STAND IN THAT RELATIONSHIP TO THE
ARMED FORCES FOR WHICH THEY WORKED? 

THIS COURT HAS CONSISTENTLY HELD, IN VARIOUS CONTEXTS, THAT CLAUSE 14
DOES NOT LIMIT THE POWER OF CONGRESS TO THE GOVERNMENT AND REGULATION
OF ONLY THOSE PERSONS WHO ARE "MEMBERS" OF THE ARMED SERVICES.  IN EX
PARTE MILLIGAN, 4 WALL.  2, 123, IT WAS SAID, RELATIVE TO THE
DISCIPLINE NECESSARY TO THE EFFICIENT OPERATION OF THE ARMY AND NAVY,
THAT "EVERY ONE CONNECTED WITH THESE BRANCHES OF THE PUBLIC SERVICE IS
AMENABLE TO THE JURISDICTION WHICH CONGRESS HAS CREATED FOR THEIR
GOVERNMENT, AND, WHILE THUS SERVING, SURRENDERS HIS RIGHT TO BE TRIED
BY THE CIVIL COURTS."  IN DUNCAN V. KAHANAMOKU, 327 U.S. 304, 313, THIS
COURT RECOGNIZED THE "WELL-ESTABLISHED POWER OF THE MILITARY TO
EXERCISE JURISDICTION OVER MEMBERS OF THE ARMED FORCES AND THOSE
DIRECTLY CONNECTED WITH SUCH FORCES  ...  ."  IN TOTH V. QUARLES, 350
U.S. 11, 15, THIS COURT SAID THAT CLAUSE 14 "WOULD SEEM TO RESTRICT
COURT-MARTIAL JURISDICTION TO PERSONS WHO ARE ACTUALLY MEMBERS OR PART
OF THE ARMED FORCES."  OF EVEN GREATER RELEVANCE, THE MAIN OPINION IN
COVERT, ALTHOUGH EXPRESSING THE VIEW THAT CLAUSE 14 AUTHORIZED MILITARY
TRIALS ONLY OF PERSONS "IN" THE ARMED FORCES, RECOGNIZED "THAT THERE
MIGHT BE CIRCUMSTANCES WHERE A PERSON COULD BE 'IN' THE ARMED SERVICES
FOR PURPOSES OF CLAUSE 14 EVEN THOUGH HE HAD NOT FORMALLY BEEN INDUCTED
INTO THE MILITARY OR DID NOT WEAR A UNIFORM."  354 U.S., AT 23.  TO
REPEAT THE QUERY OF THIS COURT, MADE UNDER VERY SIMILAR CIRCUMSTANCES,
IN EX PARTE REED, 100 U.S. 13, 22, "IF THESE CIVILIAN EMPLOYEES ARE NOT
IN THE ARMED SERVICE, IT MAY WELL BE ASKED WHO ARE."  THAT CASE HELD
THAT A CIVILIAN, EMPLOYED TO SERVE ABOARD SHIP AS THE CLERK OF A
PAYMASTER OF THE UNITED STATES NAVY AND WHO WAS DISMISSABLE AT THE WILL
OF THE COMMANDER OF THE SHIP, OCCUPIED SUCH "AN IMPORTANT PLACE IN THE
MACHINERY OF THE NAVY  ...  THAT THE GOOD ORDER AND EFFICIENCY OF THE
SERVICE DEPENDED LARGELY UPON THE FAITHFUL PERFORMANCE OF HIS DUTIES"
AND BROUGHT HIM "IN THE NAVAL SERVICE," SO THAT HE WAS SUBJECT TO TRIAL
AND PUNISHMENT BY COURT-MARTIAL FOR AN OFFENSE COMMITTED IN A BRAZILIAN
PORT.  100 U.S., AT 21-22.  JOHNSON V. SAYRE, 158 U.S. 109, REAFFIRMED
THE PRINCIPLE ON PRACTICALLY IDENTICAL FACTS.    THE PROVISIONS OF ART.
III, SEC. 2, AND THE FIFTH AND SIXTH AMENDMENTS OF THE CONSTITUTION
REQUIRING THE TRIAL OF CAPITAL OR OTHERWISE INFAMOUS CRIMES IN AN
ARTICLE III COURT, UPON AN INDICTMENT OF A GRAND JURY, BY AN IMPARTIAL
PETIT JURY, ARE NOT APPLICABLE TO "CASES ARISING IN THE LAND OR NAVAL
FORCES."  THE FIFTH AMENDMENT EXPRESSLY EXCEPTS THOSE CASES.  IT CANNOT
BE SAID THAT THE "WORDS, IN THE FIFTH AMENDMENT, RELATING TO THE MODE
OF ACCUSATION, RESTRICT THE JURISDICTION OF COURTS MARTIAL IN THE
REGULAR LAND AND NAVAL FORCES."  JOHNSON V. SAYRE, SUPRA, 158 U.S., AT
115.  THE EXCEPTION IN THE FIFTH AMENDMENT "WAS UNDOUBTEDLY DESIGNED TO
CORRELATE WITH THE POWER GRANTED CONGRESS TO PROVIDE FOR THE
'GOVERNMENT AND REGULATION' OF THE ARMED SERVICES  ...  ."  (REID V.
COVERT, SUPRA, AT 22), AND SO WAS THE JURY-TRIAL PROVISION OF THE SIXTH
AMENDMENT, FOR "THE FRAMERS OF THE CONSTITUTION, DOUBTLESS, MEANT TO
LIMIT THE RIGHT OF TRIAL BY JURY, IN THE SIXTH AMENDMENT, TO THOSE
PERSONS WHO WERE SUBJECT TO INDICTMENT OR PRESENTMENT IN THE FIFTH." 
EX PARTE MILLIGAN, SUPRA, 4 WALL., AT 123.  SEE ALSO EX PARTE QUIRIN,
317 U.S. 1, 40.  THE POWER CONFERRED UPON CONGRESS BY CLAUSE 14 TO
PROVIDE FOR COURT-MARTIAL TRIALS OF OFFENSES ARISING IN THE LAND AND
NAVAL FORCES IS INDEPENDENT OF AND NOT RESTRICTED BY ARTICLE III OR THE
FIFTH AND SIXTH AMENDMENTS TO THE CONSTITUTION. 

COUNSEL FOR THE CONVICTED EMPLOYEES ARGUE, WITH THE CITATION AND
FORCE OF MUCH HISTORY, THAT EVEN IF CIVILIANS "SERVING WITH OR EMPLOYED
BY" THE ARMED FORCES ARE SUBJECT TO THE MILITARY POWER OF COURTS
MARTIAL, SUCH COULD BE SO ONLY IN RESPECT OF OFFENSES COMMITTED WHILE
THOSE FORCES ARE "IN THE FIELD."  SOME OF THE EARLY ARTICLES OF WAR
LIMITED MILITARY JURISDICTION OVER CERTAIN CIVILIAN EMPLOYEES TO THE
PERIOD WHEN THE ARMY WAS "IN THE FIELD."  (FN24)  WHAT IS REALLY MEANT
BY THE TERM "IN THE FIELD"?  SEEMINGLY, IT DOES NOT MEAN "IN ACTUAL
WAR" OR EVEN "IN TIME OF WAR."  "THE ESSENTIAL ELEMENT WAS THOUGHT TO
BE, NOT SO MUCH THAT THERE BE WAR, IN THE TECHNICAL SENSE, BUT RATHER
THAT THE FORCES AND THEIR RETAINERS BE 'IN THE FIELD.'"  REID V.
COVERT, SUPRA, 354 U.S., AT 71, N. 8 (CONCURRING OPINION). 
HISTORICALLY, THE TERM HAS BEEN THOUGHT TO INCLUDE ARMED FORCES LOCATED
AT POINTS WHERE THE CIVIL POWER OF THE GOVERNMENT DID NOT EXTEND OR
WHERE ITS CIVIL COURTS DID NOT EXIST.  PRIOR TO THE CIVIL WAR, A NUMBER
OF CIVILIANS EMPLOYED BY THE ARMED FORCES WERE TRIED AND PUNISHED BY
COURTS-MARTIAL IN TIME OF PEACE.  (FN25)  IN 1814, THE ATTORNEY GENERAL
EXPRESSED THE OPINION THAT CIVILIAN EMPLOYEES OF THE NAVY WERE SUBJECT
TO PUNISHMENT BY COURT-MARTIAL FOR OFFENSES COMMITTED ON BOARD VESSELS
BEYOND THE TERRITORIAL JURISDICTION OF OUR CIVIL COURTS.  1 OP. ATTY.
GEN. 177.  THE TERM "IN THE FIELD" WAS THOUGHT TO APPLY TO ORGANIZED
CAMPS STATIONED IN REMOTE PLACES WHERE CIVIL COURTS DID NOT EXIST OR
WERE NOT FUNCTIONING.  IN 1866, THE JUDGE ADVOCATE GENERAL OF THE ARMY
SO DECLARED.  (FN26)  BUT THEREAFTER, WINTHROP EXPRESSED THE VIEW THAT
THE TERM "IN THE FIELD" IS TO BE "CONFINED BOTH TO THE PERIOD AND
PENDENCY OF WAR AND TO ACTS COMMITTED ON THE THEATRE OF THE WAR." 
(FN27)  THIS WOULD SEEM TO IGNORE THE FACT THAT THE CONSTITUTIONAL
AUTHORITY INVOLVED IS CLAUSE 14, NOT THE WAR POWER, AND THAT THE CLAUSE
14 POWERS APPLY TO TIMES OF BOTH PEACE AND WAR.  MOREOVER, EVEN AT THE
TIME WHEN WINTHROP WROTE, THERE WAS NO CONSENSUS OF INTERPRETATION
SUPPORTING HIS VIEW.  IN 1872, THE ATTORNEY GENERAL ISSUED AN OPINION
WHICH CONCLUDED THAT CIVILIANS SERVING WITH TROOPS IN KANSAS, COLORADO,
NEW MEXICO, AND THE INDIAN TERRITORY (WHERE CIVIL COURTS DID NOT EXIST
OR WERE NOT FUNCTIONING) IN THE BUILDING OF DEFENSIVE EARTHWORKS TO
PROTECT AGAINST THREATENING INDIANS WERE "IN THE FIELD."  14 OP. ATTY.
GEN. 22.  (FN28)  AS EARLIER OBSERVED, THIS COURT HELD, IN 1879, IN EX
PARTE REED, SUPRA, AND AGAIN IN 1895, IN JOHNSON V. SAYRE, SUPRA, THAT
THE CIVILIAN CLERK OF A PAYMASTER OF THE NAVY MIGHT BE TRIED AND
PUNISHED BY A COURT-MARTIAL FOR A MILITARY OFFENSE COMMITTED IN
PEACETIME ABOARDSHIP IN A FOREIGN PORT. 

DOUBTLESS, WITH THE PASSING OF THE FRONTIER AND THE EXTENSION OF
CIVIL COURTS THROUGHOUT THE TERRITORIAL BOUNDARIES OF THE UNITED
STATES, DETACHMENTS OF TROOPS STATIONED WITHIN OUR BORDERS MAY NOT IN
TIME OF PEACE BE REGARDED AS "IN THE FIELD."  BUT, IT SEEMS TO ME THAT
ARMED FORCES OF THE UNITED STATES STATIONED AT BASES IN FOREIGN LANDS -
WHERE JURISDICTION OF OUR CIVIL COURTS DOES NOT EXTEND - MUST, UNDER
TURBULENT WORLD CONDITIONS, BE OTHERWISE REGARDED.  BECAUSE OF LONG
EXISTING WORLD TENSIONS AND WITH THE FERVENT HOPE OF PREVENTING WORSE,
THE UNITED STATES GOVERNMENT HAS STATIONED ARMED FORCES AT MILITARY
BASES IN 63 FOREIGN LANDS THROUGHOUT THE WORLD.  WE ARE TOLD THAT THEY
MUST BE KEPT CONSTANTLY ALERT AND READY TO PREVENT OR, IF AND WHEN THEY
ARISE, TO PUT DOWN "BRUSH FIRES" WHICH IF ALLOWED TO SPREAD MIGHT
IGNITE A WORLD-WIDE HOLOCAUST OF ATOMIC WAR.  BECAUSE OF PHYSICAL
NECESSITIES, SUCH A WAR, LIKE THE FREQUENTLY RECURRING "BRUSH FIRES,"
COULD BE SUPPRESSED, IF AT ALL, MAINLY FROM THOSE BASES.  THE FORCES AT
THOSE BASES ARE AS MUCH "IN THE FIELD" IN THE ONE CASE AS IN THE
OTHER.  THOUGH THERE BE NO WAR IN THE TECHNICAL SENSE, THOSE FORCES
WHILE SO ENGAGED IN FOREIGN LANDS - WHERE OUR CIVIL COURTS DO NOT EXIST
- ARE IN EVERY PRACTICAL SENSE "IN THE FIELD."  THEY ARE AS CLEARLY "IN
THE FIELD" AS WERE AMERICAN SOLDIERS WHILE BUILDING FORTIFICATIONS TO
PROTECT AGAINST THREATENING INDIANS IN NEW MEXICO AND THE INDIAN
TERRITORY, WHERE OUR CIVIL COURTS DID NOT EXIST, IN THE DAYS OF THE
FRONTIER.  OP. J.A.G. OF THE ARMY, NOV. 15, 1866, 23 LETTERS SENT, 331
(NATIONAL ARCHIVES) AND SEE NOTE 26; 14 OP. ATTY. GEN.  22, AND SEE
NOTE 28. 

CLAUSE 14 EMPOWERS CONGRESS TO "MAKE RULES" - ALL NECESSARY AND
PROPER RULES - "FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL
FORCES" - NOT JUST FOR "MEMBERS" OF THOSE FORCES, BUT THE "FORCES," AND
NOT ONLY IN TIME OF WAR BUT IN TIMES OF BOTH PEACE AND WAR.  IN THE
EXERCISE OF THAT GRANTED POWER, CONGRESS HAS PROMULGATED RULES, THE
UNIFORM CODE OF MILITARY JUSTICE, FOR THE GOVERNMENT OF THE "ARMED
FORCES" AND, TO THAT END, HAS DEEMED IT NECESSARY, AS WITNESS ARTICLE
2(11), TO INCLUDE PERSONS "EMPLOYED BY" THOSE FORCES WHEN "OUTSIDE THE
UNITED STATES" - WHERE OUR CIVIL COURTS HAVE NO JURISDICTION AND DO NOT
EXIST - IN TIMES OF BOTH PEACE AND WAR.  IN THE LIGHT OF ALL THE FACTS,
IT WOULD SEEM CLEAR ENOUGH THAT CONGRESS COULD RATIONALLY FIND THAT
THOSE PERSONS ARE "IN" THOSE FORCES AND, THOUGH THERE BE NO SHOOTING
WAR, THAT THOSE FORCES, IN TURN, ARE "IN THE FIELD"; AND HENCE CONGRESS
COULD AND DID CONSTITUTIONALLY MAKE THOSE EMPLOYEES SUBJECT TO THE
MILITARY POWER.  BOTH THE PRACTICAL NECESSITIES AND THE LACK OF
ALTERNATIVES, SO CLEARLY DEMONSTRATED BY MR. JUSTICE CLARK IN THE
COVERT CASE, 354 U.S., AT 78 (DISSENTING OPINION), STRONGLY BUTTRESS
THIS CONCLUSION, IF, INDEED, IT COULD OTHERWISE BE DOUBTED. 

FOR THESE REASONS, I WOULD AFFIRM NO. 22, THE SINGLETON CASE; REVERSE
NO. 21, THE GUAGLIARDO CASE; AND AFFIRM NOS. 37 AND 58, THE WILSON AND
GRISHAM CASES. 

FN1  THE UNIFORM CODE OF MILITARY JUSTICE, 70A STAT. 36 ET SEQ., WILL
HEREAFTER, FOR BREVITY, BE CALLED THE "CODE." 

FN2  THIS DOES NOT OVERLOOK THE "NECESSARY AND PROPER" CLAUSE, ART.
I, SEC. 8, CL. 18, OF THE CONSTITUTION, BUT, IN MY VIEW, THAT CLAUSE,
THOUGH APPLICABLE, ADDS NOTHING TO CLAUSE 14, BECAUSE THE LATTER
CLAUSE, EMPOWERING CONGRESS "TO MAKE RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES," PLAINLY MEANS ALL NECESSARY
AND PROPER RULES FOR THOSE PURPOSES. 

MR. JUSTICE STEWART IS OF THE VIEW THAT CLAUSE 14 MUST BE READ IN
CONNECTION WITH THE "NECESSARY AND PROPER" CLAUSE, AND AGREES WITH THE
VIEWS EXPRESSED IN MR. JUSTICE HARLAN'S SEPARATE OPINION AS TO THE
APPLICABILITY AND EFFECT OF THAT CLAUSE. 

FN3  ALTHOUGH A MEMBER OF THE COURT WHEN THE OPINIONS IN THE COVERT
CASE WERE HANDED DOWN, I WAS INELIGIBLE TO AND DID NOT PARTICIPATE IN
THE DECISION OF THAT CASE BECAUSE IT HAD BEEN ARGUED, SUBMITTED AND
DECIDED PRIOR TO MY COMING TO THE COURT. 

FN4  WINTHROP, MILITARY LAW AND PRECEDENTS (REPRINT 1920), 947. 

FN5  JOURNALS OF THE CONTINENTAL CONGRESS, VOL. II, P. 111.  THOSE
ARTICLES, WITH ADDITIONAL ARTICLES ENACTED NOVEMBER 7, 1775, ARE
REPRINTED IN WINTHROP 953 ET SEQ. 

FN6  THOSE ARTICLES ARE REPRINTED IN WINTHROP 961-971. 

FN7  THE ARTICLES WERE PREPARED PRINICPALLY BY JOHN ADAMS.  SEE JOHN
ADAMS, WORKS, VOL. 3, PP. 83-84; WINTHROP 22. 

FN8  ARTICLES OF WAR, SEPT. 20, 1776, SEC. IV, ART. 6. 

FN9  ID., SEC. VIII, ART. 1. 

FN10  ID., SEC. XII, ART. 1. 

FN11  ID., SEC. XIII, ART. 9. 

FN12  ID., SEC. XIII, ART. 17. 

FN13  ARTICLES OF WAR, JUNE 30, 1775, ART. XLVIII; WINTHROP 957. 

FN14  ARTICLES OF WAR, SEPT. 20, 1776, SEC. XVI, ART. I; WINTHROP
970. 

FN15  SEE THE REPORT WHICH WASHINGTON MADE TO THE COMMITTEE OF
CONGRESS WITH THE ARMY, ON JANUARY 29, 1778:  "AS IT DOES NOT REQUIRE
MILITARY MEN, TO DISCHARGE THE DUTIES OF COMMISSARIES, FORAGE MASTERS
AND WAGGON MASTERS, WHO ARE ALSO LOOKED UPON AS THE MONEY MAKING PART
OF THE ARMY, NO RANK SHOULD BE ALLOWED TO ANY OF THEM, NOR INDEED TO
ANY IN THE DEPARTMENTS MERELY OF A CIVIL NATURE.  NEITHER IS IT, IN MY
OPINION PROPER, THOUGH IT MAY SEEM A TRIVIAL AND INCONSEQUENTIAL
CIRCUMSTANCE, THAT THEY SHOULD WEAR THE ESTABLISHED UNIFORMS OF THE
ARMY, WHICH OUGHT TO BE CONSIDERED AS A BADGE OF MILITARY
DISTINCTION."  WRITINGS OF WASHINGTON, VOL. 10, AT 379. 

NUMEROUS INSTANCES OF THE EXERCISE OF MILITARY JURISDICTION OVER
CIVILIANS SERVING WITH THE ARMY ARE DETAILED IN WASHINGTON'S WRITINGS. 
A "WAGON MASTER" WAS SO TRIED AND ACQUITTED ON JANUARY 22, 1778.  (VOL.
10, P. 359.)  A "WAGGONER" WAS SO TRIED AND SENTENCED ON MAY 25, 1778
(VOL. 11, P. 487), AND ANOTHER ON SEPTEMBER 2, 1780.  AT THE SAME TIME,
AN "EXPRESS RIDER" WAS SO TRIED AND CONVICTED.  (VOL. 20, PP. 24-25.) 
ON SEPTEMBER 21, 1779, A "COMMISSARY OF ISSUES" AND A "COMMISSARY OF
HIDES" WERE TRIED BY COURT-MARTIAL.  (VOL. 16, PP. 385-386.)  ON
SEPTEMBER 23, 1780, ANOTHER "WAGGONER" WAS SO TRIED AND ACQUITTED. 
(VOL. 20, PP. 96-97.)  ON DECEMBER 6 AND 16, 1780, ANOTHER "COMMISSARY"
AND ALSO A "BARRACK MASTER" WERE SO TRIED.  (VOL. 21, P. 10, AND PP. 22
23.)  NUMEROUS OTHER COURT-MARTIAL TRIALS OF CIVILIANS SERVING WITH THE
ARMY ARE RECITED IN VOL. 10, P. 507; VOL. 12, P. 242; VOL. 13, PP. 54,
314; VOL. 21, P. 190. 

FN16  PRESCOTT, DRAFTING THE FEDERAL CONSTITUTION (1941), PP. 515
525; 5 ELLIOT'S DEBATES 443-445. 

FN17  GLENN AND SCHILLER, THE ARMY AND THE LAW, PP. 14, 18-20. 

FN18  THE BASIS OF THIS CONCLUSION WAS SUMMARIZED BY JAMES MADISON IN
BELOFF, THE FEDERALIST, NO. XLI, P. 207: 

"NEXT TO THE EFFECTUAL ESTABLISHMENT OF THE UNION, THE BEST POSSIBLE
PRECAUTION AGAINST DANGER FROM STANDING ARMIES, IS A LIMITATION OF THE
TERM FOR WHICH REVENUE MAY BE APPROPRIATED TO THEIR SUPPORT.  THIS
PRECAUTION THE CONSTITUTION HAS PRUDENTLY ADDED  ...  ." 

FN19  PRESCOTT, DRAFTING THE FEDERAL CONSTITUTION (1941), P. 526; 5
ELLIOT'S DEBATES 443. 

FN20  HAMILTON, AIDE-DE-CAMP TO WASHINGTON AND A DISTINGUISHED ARMY
OFFICER, UNDOUBTEDLY KNEW THAT CIVILIANS SERVING WITH THE ARMY WERE
COMMONLY SUBJECTED TO COURT-MARTIAL JURISDICTION.  THE SAME MUST BE
PRESUMED TO HAVE BEEN KNOWN BY MOST, IF NOT ALL, OF THE MEMBERS OF THE
CONSTITUTIONAL CONVENTION, FOR SO MANY OF THEM HAD BEEN A PART OF THE
REVOLUTIONARY ARMY WHEREIN THAT PRACTICE WAS COMMONPLACE. 

FN21  ARTICLE 2(D) OF THE 1916 ARTICLES PROVIDED THAT THE FOLLOWING
PERSONS SHOULD BE SUBJECT TO THE ARTICLES OF WAR: 

"(D)  ALL RETAINERS TO THE CAMP AND ALL PERSONS ACCOMPANYING OR
SERVING WITH THE ARMIES OF THE UNITED STATES WITHOUT THE TERRITORIAL
JURISDICTION OF THE UNITED STATES, AND IN TIME OF WAR ALL SUCH
RETAINERS AND PERSONS ACCOMPANYING OR SERVING WITH THE ARMIES OF THE
UNITED STATES IN THE FIELD, BOTH WITHIN AND WITHOUT THE TERRITORIAL
JURISDICTION OF THE UNITED STATES, THOUGH NOT OTHERWISE SUBJECT TO
THESE ARTICLES."  THIS SECTION WAS RE-ENACTED IN 1920, 41 STAT. 787. 

FN22  GENERAL ENOCH H. CROWDER, THEN JUDGE ADVOCATE GENERAL OF THE
ARMY, STATED BEFORE THE HOUSE COMMITTEE ON MILITARY AFFAIRS:  "THERE IS
NOTHING NEW IN THE ARTICLE IN SUBJECTING THESE SEVERAL CLASSES TO THE
PROVISIONS OF ARTICLE 65.  IT IS A JURISDICTION WHICH HAS ALWAYS BEEN
EXERCISED.  WHEN ANY PERSON JOINS AN ARMY IN THE FIELD AND SUBJECTS
HIMSELF BY THAT ACT TO THE DISCIPLINE OF THE CAMP HE ACQUIRES THE
CAPACITY TO IMPERIL THE SAFETY OF THE COMMAND TO THE SAME DEGREE AS A
MAN UNDER THE OBLIGATION OF AN ENLISTMENT CONTRACT OR OF A
COMMISSION."  HEARINGS ON H.R. 23628, 62D CONG., 2D SESS., P. 61. 

FN23  SEE CONG. GLOBE, 37TH CONG., 3D SESS., 995 ET SEQ. 

FN24  ARTICLE XXXII OF AMERICAN ARTICLES OF WAR OF 1775, 2 J. CONT. 
CONG.  111, PROVIDED THAT "ALL SUTTLERS AND RETAILERS TO A CAMP, AND
ALL PERSONS WHATSOEVER, SERVING WITH THE CONTINENTAL ARMY IN THE FIELD
...  " WERE SUBJECT TO COURT-MARTIAL JURISDICTION.    ARTICLE 60 OF THE
AMERICAN ARTICLES OF WAR OF 1806, 2 STAT. 359, 366, PROVIDED THAT "ALL
SUTTLERS AND RETAINERS TO THE CAMP, AND ALL PERSONS WHATSOEVER, SERVING
WITH THE ARMIES OF THE UNITED STATES IN THE FIELD  ...  " WERE SUBJECT
TO COURT-MARTIAL JURISDICTION. 

ARTICLE 63 OF AMERICAN ARTICLES OF WAR OF 1874, R.S. SEC. 1342,
PROVIDED THAT "ALL RETAINERS TO THE CAMP, AND ALL PERSONS SERVING WITH
THE ARMIES OF THE UNITED STATES IN THE FIELD  ...  " WERE WITHIN THE
JURISDICTION OF COURTS-MARTIAL. 

FN25  AT FT. MONROE, VA., IN 1825; FT. WASHINGTON, MD., IN 1825; FT.
GIBSON, IN WHAT IS NOW OKLAHOMA, IN 1833; FT. BROOKE, FLA., IN 1838;
CAMP SCOTT, UTAH TERRITORY, IN 1858; FT. BRIDGER, UTAH TERRITORY, IN
1858. 

FN26  ON NOVEMBER 15, 1866, THE JUDGE ADVOCATE GENERAL OF THE ARMY
FORMULATED THE FOLLOWING OPINION AND DIRECTION: 

"IT IS HELD BY THIS BUREAU AND HAS BEEN THE GENERAL USAGE OF THE
SERVICE IN TIMES OF PEACE, THAT A DETACHMENT OF TROOPS IS AN ARMY 'IN
THE FIELD' WHEN ON THE MARCH, OR AT A POST REMOTE FROM CIVIL
JURISDICTION. 

"IT HAS BEEN THE CUSTOM AND IS HELD TO BE ADVISABLE, THAT CIVIL
EMPLOYEES, SUTLERS AND CAMP FOLLOWERS WHEN GUILTY OF CRIMES KNOWN TO
THE CIVIL LAW, TO TURN THE PARTIES OVER TO THE COURTS OF THE VICINITY
IN WHICH THE CRIMES WERE COMMITTED.  FOR MINOR OFFENCES AGAINST GOOD
ORDERS AND DISCIPLINE, IT HAS BEEN CUSTOMARY TO EXPEL THE PARTIES FROM
THE ARMY:  IF, HOWEVER, IT IS SOUGHT TO PUNISH CIVIL EMPLOYEES IN NEW
MEXICO, FOR CRIMES COMMITTED AT A POST WHERE THERE ARE NO CIVIL COURTS
BEFORE WHICH THEY CAN BE TRIED, IT IS HELD THAT THEY CAN BE BROUGHT TO
TRIAL BEFORE A GENERAL COURT MARTIAL, AS THEY MUST BE CONSIDERED AS
SERVING WITH 'AN ARMY IN THE FIELD' AND, THEREFORE, WITHIN THE
PROVISION OF THE 60TH ARTICLE OF WAR."  OP.  J.A.G. OF THE ARMY, NOV.
15, 1866, 23 LETTERS SENT, 331 (NATIONAL ARCHIVES). 

FN27  WINTHROP, MILITARY LAW AND PRECEDENTS, 101. 

FN28  THE OPINION RESTED PRIMARILY ON THE GROUND THAT THE TERM "IN
THE FIELD" IMPLIES MILITARY OPERATIONS WITH A VIEW TO AN ENEMY, AND
THAT AN ARMY WAS "IN THE FIELD" WHEN "ENGAGED IN OFFENSIVE OR DEFENSIVE
OPERATIONS."  IT ALSO NOTED, P. 24, THAT: 

"POSSIBLY THE FACT THAT TROOPS ARE FOUND IN A REGION OF COUNTRY
CHIEFLY INHABITED BY INDIANS, AND REMOTE FROM THE EXERCISE OF CIVIL
AUTHORITY, MAY ENTER INTO THE DESCRIPTION OF 'AN ARMY IN THE FIELD.'" 
..END :









GRISHAM V. HAGAN 361 U.S. 278 


NO. 58.  ARGUED OCTOBER 22, 1959 - DECIDED JANUARY 18, 1960 - 261 F.2D
204, REVERSED. 


ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE, PROVIDING FOR
THE TRIAL BY COURT-MARTIAL OF "ALL PERSONS SERVING WITH, EMPLOYED BY,
OR ACCOMPANYING THE ARMED FORCES" OF THE UNITED STATES IN FOREIGN
COUNTRIES, CANNOT CONSTITUTIONALLY BE APPLIED IN PEACETIME TO THE TRIAL
OF A CIVILIAN EMPLOYEE OF THE ARMED FORCES SERVING WITH THE ARMED
FORCES IN A FOREIGN COUNTRY AND CHARGED WITH HAVING COMMITTED A CAPITAL
OFFENSE THERE.  REID V. COVERT, 354 U.S. 1.  PP. 278-280. 

GRISHAM V. HAGAN, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE TESTS BY HABEAS CORPUS THE VALIDITY OF ARTICLE 2(11) OF THE
UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. SEC. 802, (FN1) AS APPLIED
TO A CIVILIAN TRIED BY COURT-MARTIAL FOR A CAPITAL OFFENSE WHILE
EMPLOYED OVERSEAS BY THE UNITED STATES ARMY.  IT IS A COMPANION CASE TO
NO. 22, KINSELLA V. SINGLETON, ANTE, P. 234, WHICH INVOLVES THE
APPLICATION OF THE SAME ARTICLE TO NONCAPITAL OFFENSES COMMITTED BY
DEPENDENTS ACCOMPANYING SOLDIERS STATIONED OUTSIDE THE UNITED STATES,
AND TO NO. 21, MCELROY V. GUAGLIARDO, AND NO. 37, WILSON V. BOHLENDER,
POST, P. 281, INVOLVING NONCAPITAL OFFENSES COMMITTED BY ARMED-SERVICES
EMPLOYEES WHILE STATIONED OVERSEAS - ALL OF WHICH CASES ARE DECIDED
TODAY. 

PETITIONER, A CIVILIAN EMPLOYEE OF THE UNITED STATES ARMY ATTACHED TO
AN ARMY INSTALLATION IN FRANCE, WAS TRIED BY A GENERAL COURT-MARTIAL
FOR THE CAPITAL OFFENSE OF PREMEDITATED MURDER AS DEFINED IN ARTICLE
118(1) OF THE UNIFORM CODE OF MILITARY JUSTICE.  HE WAS FOUND GUILTY OF
THE LESSER AND INCLUDED OFFENSE OF UNPREMEDITATED MURDER, AND SENTENCED
TO CONFINEMENT AT HARD LABOR FOR THE TERM OF HIS NATURAL LIFE.  THE
SENTENCE WAS SUBSEQUENTLY REDUCED TO 35 YEARS.  WHILE SERVING THIS
SENTENCE AT THE UNITED STATES PENITENTIARY AT LEWISBURG, PENNSYLVANIA,
HE FILED THIS PETITION FOR A WRIT OF HABEAS CORPUS, CLAIMING THAT
ARTICLE 2(11) WAS UNCONSTITUTIONAL AS APPLIED TO HIM, FOR THE REASON
THAT CONGRESS LACKED THE POWER TO DEPRIVE HIM OF A CIVIL TRIAL
AFFORDING ALL OF THE PROTECTIONS OF ARTICLE III AND THE FIFTH AND SIXTH
AMENDMENTS OF THE CONSTITUTION.  THE WRIT WAS DISMISSED, 161 F. SUPP.
112, AND THE COURT OF APPEALS AFFIRMED, 261 F.2D 204.  IN THE LIGHT OF
THE OPINION OF THIS COURT ON THE REHEARING IN REID V. COVERT, 354 U.S.
1 (1957), AS WELL AS THAT OF THE COURT OF APPEALS ON THE ISSUE OF THE
SEVERABILITY OF ARTICLE 2(11) IN GUAGLIARDO V. MCELROY, 259 F.2D 927,
(FN2) WE GRANTED CERTIORARI.  359 U.S. 978 (1959). 

WE ARE OF THE OPINION THAT THIS CASE IS CONTROLLED BY REID V. COVERT,
SUPRA.  IT DECIDED THAT THE APPLICATION OF THE ARTICLE TO CIVILIAN
DEPENDENTS CHARGED WITH CAPITAL OFFENSES WHILE ACCOMPANYING SERVICEMEN
OUTSIDE THE UNITED STATES WAS UNCONSTITUTIONAL AS VIOLATIVE OF ARTICLE
III AND THE FIFTH AND SIXTH AMENDMENTS.  WE HAVE CAREFULLY CONSIDERED
THE GOVERNMENT'S POSITION AS TO THE DISTINCTIONS BETWEEN CIVILIAN
DEPENDENTS AND CIVILIAN EMPLOYEES, ESPECIALLY ITS VOLUMINOUS HISTORICAL
MATERIALS RELATING TO COURT-MARTIAL JURISDICTION.  HOWEVER, THE
CONSIDERATIONS POINTED OUT IN COVERT HAVE EQUAL APPLICABILITY HERE. 
THOSE WHO CONTROLLED THE MAJORITY THERE HELD THAT THE DEATH PENALTY IS
SO IRREVERSIBLE THAT A DEPENDENT CHARGED WITH A CAPITAL CRIME MUST HAVE
THE BENEFIT OF A JURY.  THE AWESOMENESS OF THE DEATH PENALTY HAS NO
LESS IMPACT WHEN APPLIED TO CIVILIAN EMPLOYEES.  CONTINUED ADHERENCE TO
COVERT REQUIRES CIVILIAN EMPLOYEES TO BE AFFORDED THE SAME RIGHT OF
TRIAL BY JURY.  FURTHERMORE, THE NUMBER OF CIVILIAN EMPLOYEES IS MUCH
SMALLER THAN THE NUMBER OF DEPENDENTS, AND THE ALTERNATIVE PROCEDURES
AVAILABLE FOR CONTROLLING DISCIPLINE AS TO THE FORMER MORE EFFECTIVE. 
SEE MCELROY V. GUAGLIARDO, POST, P. 281.  FOR THE PURPOSES OF THIS
DECISION, WE CANNOT SAY THAT THERE ARE ANY VALID DISTINCTIONS BETWEEN
THE TWO CLASSES OF PERSONS.  THE JUDGMENT IS THEREFORE REVERSED.  IT IS
SO ORDERED. 

FN1  ART. 2.  "THE FOLLOWING PERSONS ARE SUBJECT TO THIS CHAPTER: 

     *     *         *         *         * 

"(11)  SUBJECT TO ANY TREATY OR AGREEMENT TO WHICH THE UNITED STATES
IS OR MAY BE A PARTY OR TO ANY ACCEPTED RULE OF INTERNATIONAL LAW,
PERSONS SERVING WITH, EMPLOYED BY, OR ACCOMPANYING THE ARMED FORCES
OUTSIDE THE UNITED STATES AND OUTSIDE THE FOLLOWING:  THAT PART OF
ALASKA EAST OF LONGITUDE 172 DEGREES WEST, THE CANAL ZONE, THE MAIN
GROUP OF THE HAWAIIAN ISLANDS, PUERTO RICO, AND THE VIRGIN ISLANDS." 

FN2  IN THE LIGHT OF OUR OPINION IN NO. 21, MCELROY V. GUAGLIARDO,
HANDED DOWN TODAY, POST, P. 281, WE DENY THE CONTENTION THAT THE
ARTICLE IS NONSEVERABLE. 

FOR OPINION OF MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE FRANKFURTER,
SEE ANTE, P. 249. 

FOR OPINION OF MR. JUSTICE WHITTAKER, JOINED BY MR. JUSTICE STEWART,
SEE ANTE, P. 259. 
..END :
























MCELROY V. UNITED STATES, GUAGLIARDO 361 U.S. 281 


NO. 21.  ARGUED OCTOBER 21-22, 1959 - DECIDED JANUARY 18, 1960* - 104
U.S. APP. D.C. 112, 259 F.2D 927, AFFIRMED - 167 F. SUPP. 791,
REVERSED. 

*TOGETHER WITH NO. 37, WILSON V. BOHLENDER, ON CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT, ARGUED OCTOBER
22, 1959. 


1.  ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE, PROVIDING
FOR THE TRIAL BY COURT-MARTIAL OF "ALL PERSONS SERVING WITH, EMPLOYED
BY, OR ACCOMPANYING THE ARMED FORCES" OF THE UNITED STATES IN FOREIGN
COUNTRIES, CANNOT CONSTITUTIONALLY BE APPLIED IN PEACETIME TO THE TRIAL
OF A CIVILIAN EMPLOYEE OF THE ARMED FORCES SERVING WITH THE ARMED
FORCES IN A FOREIGN COUNTRY AND CHARGED WITH HAVING COMMITTED A
NONCAPITAL OFFENSE THERE.  KINSELLA V. SINGLETON, ANTE, P. 234; GRISHAM
V. HAGAN, ANTE, P. 278.  PP. 282-287. 

2.  ARTICLE 2(11) IS SEVERABLE, AND LEGAL EFFECT CAN BE GIVEN TO EACH
CATEGORY STANDING ALONE.  P. 283. 

MCELROY, SECRETARY OF DEFENSE, ET AL. V. UNITED STATES EX REL.
GUAGLIARDO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO NO. 22, KINSELLA V. SINGLETON, ANTE, P.
234, AND NO. 58, GRISHAM V. HAGAN, ANTE, P. 278, BOTH DECIDED TODAY. 
ALL THE CASES INVOLVE THE APPLICATION OF ARTICLE 2(11) (FN1) OF THE
UNIFORM CODE OF MILITARY JUSTICE.  HERE ITS APPLICATION TO NONCAPITAL
OFFENSES COMMITTED BY CIVILIAN EMPLOYEES OF THE ARMED FORCES WHILE
STATIONED OVERSEAS IS TESTED. 

IN NO. 21 THE RESPONDENT, A CIVILIAN EMPLOYEE OF THE AIR FORCE
PERFORMING THE DUTIES OF AN ELECTRICAL LINEMAN, WAS CONVICTED BY COURT
MARTIAL AT THE NOUASSEUR AIR DEPOT NEAR CASABLANCA, MOROCCO, OF LARCENY
AND CONSPIRACY TO COMMIT LARCENY FROM THE SUPPLY HOUSE AT THE DEPOT. 
BEFORE BEING TRANSFERRED TO THE UNITED STATES DISCIPLINARY BARRACKS,
NEW CUMBERLAND, PENNSYLVANIA, RESPONDENT FILED A PETITION FOR A WRIT OF
HABEAS CORPUS IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ALLEGING THAT THE MILITARY AUTHORITIES HAD NO JURISDICTION TO TRY HIM
BY COURT-MARTIAL.  THIS PETITION WAS DISMISSED.  158 F. SUPP. 171.  THE
COURT OF APPEALS REVERSED AND ORDERED RESPONDENT DISCHARGED.  IT HELD
THAT REID V. COVERT, 354 U.S. 1 (1957), WAS BINDING AS TO ALL CLASSES
OF PERSONS INCLUDED WITHIN THE SECTION AND THAT EACH CLASS WAS
NONSEVERABLE.  104 U.S. APP. D.C. 112, 259 F.2D 927.  WE GRANTED
CERTIORARI, 359 U.S. 904, IN VIEW OF THE CONFLICT WITH GRISHAM V.
TAYLOR, 261 F.2D 204. 

IN NO. 37, PETITIONER, A CIVILIAN AUDITOR EMPLOYED BY THE UNITED
STATES ARMY AND STATIONED IN BERLIN, WAS CONVICTED BY A GENERAL COURT
MARTIAL ON A PLEA OF GUILTY TO THREE ACTS OF SODOMY.  WHILE SERVING HIS
FIVE-YEAR SENTENCE, PETITIONER FILED A PETITION FOR A WRIT OF HABEAS
CORPUS IN THE UNITED STATES DISTRICT COURT FOR COLORADO.  THE PETITION
WAS DISMISSED, 167 F. SUPP. 791, AND APPEAL WAS PERFECTED TO THE COURT
OF APPEALS FOR THE TENTH CIRCUIT.  PRIOR TO ARGUMENT WE GRANTED
CERTIORARI.  (FN2)  359 U.S. 906. 

WE FIRST TURN TO RESPONDENT GUAGLIARDO'S CONTENTION THAT ARTICLE
2(11) IS NONSEVERABLE.  AS DESIRABLE AS IT IS TO AVOID CONSTITUTIONAL
ISSUES, WE CANNOT DO SO ON THIS GROUND.  THE ACT PROVIDES FOR
SEVERABILITY OF THE REMAINING SECTIONS IF "A PART OF THIS ACT IS
INVALID IN ONE OR MORE OF ITS APPLICATIONS."  70A STAT. 640.  THE
INTENTION OF CONGRESS IN PROVIDING FOR SEVERABILITY IS CLEAR, AND LEGAL
EFFECT CAN BE GIVEN TO EACH CATEGORY STANDING ALONE.  SEE DORCHY V.
KANSAS, 264 U.S. 286, 290 (1924). 

WE BELIEVE THAT THESE CASES INVOLVING THE APPLICABILITY OF ARTICLE
2(11) TO EMPLOYEES OF THE ARMED SERVICES WHILE SERVING OUTSIDE THE
UNITED STATES ARE CONTROLLED BY OUR OPINION IN NO. 22, KINSELLA V.
SINGLETON, ANTE, P. 234, AND NO. 58, GRISHAM V. HAGAN, ANTE, P. 278,
ANNOUNCED TODAY.  IN SINGLETON WE REFUSED, IN THE LIGHT OF REID V.
COVERT, 354 U.S. 1 (1957), TO APPLY THE PROVISIONS OF THE ARTICLE TO
NONCAPITAL OFFENSES COMMITTED BY DEPENDENTS OF SOLDIERS IN THE ARMED
SERVICES WHILE OVERSEAS; IN GRISHAM WE HELD THAT THERE WAS NO
CONSTITUTIONAL DISTINCTION FOR PURPOSES OF COURT-MARTIAL JURISDICTION
BETWEEN DEPENDENTS AND EMPLOYEES INSOFAR AS APPLICATION OF THE DEATH
PENALTY IS CONCERNED.  THE RATIONALE OF THOSE CASES APPLIES HERE. 

ALTHOUGH IT IS TRUE THAT THERE ARE MATERIALS SUPPORTING TRIAL OF
SUTLERS AND OTHER CIVILIANS BY COURTS-MARTIAL, THESE MATERIALS ARE "TOO
EPISODIC, TOO MEAGER, TO FORM A SOLID BASIS IN HISTORY, PRECEDING AND
CONTEMPORANEOUS WITH THE FRAMING OF THE CONSTITUTION, FOR
CONSTITUTIONAL ADJUDICATION."  CONCURRING OPINION, COVERT, 354 U.S., AT
64.  FURTHERMORE, THOSE TRIALS DURING THE REVOLUTIONARY PERIOD, ON
WHICH IT IS CLAIMED THAT COURT-MARTIAL JURISDICTION RESTS, WERE ALL
DURING A PERIOD OF WAR, AND HENCE ARE INAPPLICABLE HERE.  MOREOVER, THE
MATERIALS ARE NOT BY ANY MEANS ONE-SIDED.  THE RECOGNIZED AUTHORITY ON
COURT-MARTIAL JURISDICTION, AFTER A CAREFUL CONSIDERATION OF ALL THE
HISTORICAL BACKGROUND, CONCLUDED:  "THAT A CIVILIAN, ENTITLED AS HE IS,
BY ART. VI OF THE AMENDMENTS TO THE CONSTITUTION, TO TRIAL BY JURY,
CANNOT LEGALLY BE MADE LIABLE TO THE MILITARY LAW AND JURISDICTION, IN
TIME OF PEACE, IS A FUNDAMENTAL PRINCIPLE OF OUR PUBLIC LAW  ...  ." 
(FN3) BUT IT IS CONTENDED THAT EX PARTE REED, 100 U.S. 13 (1897), IS
CONTROLLING BECAUSE THE FORCES COVERED BY ARTICLE 2(11) ARE OVERSEAS
AND THEREFORE "IN THE FIELD."  EXAMINATION OF THAT CASE, AS WELL AS
JOHNSON V. SAYRE, 158 U.S. 109 (1895), HOWEVER, SHOWS THEM TO BE
ENTIRELY INAPPOSITE.  THOSE CASES PERMITTED TRIAL BY COURTS-MARTIAL OF
PAYMASTERS' CLERKS IN THE NAVY.  THE COURT FOUND THAT SUCH A POSITION
WAS "AN IMPORTANT ONE IN THE MACHINERY OF THE NAVY," THE APPOINTMENT
BEING MADE ONLY UPON APPROVAL OF THE COMMANDER OF THE SHIP AND FOR A
PERMANENT TENURE "UNTIL DISCHARGED."  ALSO THE PAYMASTER'S CLERK WAS
REQUIRED TO AGREE IN WRITING "TO SUBMIT TO THE LAWS AND REGULATIONS FOR
THE GOVERNMENT AND DISCIPLINE OF THE NAVY."  MOREOVER, FROM TIME
IMMEMORIAL THE LAW OF THE SEA HAS PLACED THE POWER OF DISCIPLINARY
ACTION IN THE COMMANDER OF THE SHIP WHEN AT SEA OR IN A FOREIGN PORT. 
NONE OF THESE CONSIDERATIONS ARE PRESENT HERE.  AS WE SHALL POINT OUT
SUBSEQUENTLY, A PROCEDURE ALONG THE LINES OF THAT USED BY THE NAVY AS
TO PAYMASTERS' CLERKS MIGHT OFFER A PRACTICAL ALTERNATIVE TO THE USE OF
CIVILIAN EMPLOYEES BY THE ARMED SERVICES.  AS WAS STATED IN THE SECOND
COVERT CASE, SUPRA, AT 23, "THERE MIGHT BE CIRCUMSTANCES WHERE A PERSON
COULD BE 'IN' THE ARMED SERVICES FOR PURPOSES OF CLAUSE 14 EVEN THOUGH
HE HAD NOT FORMALLY BEEN INDUCTED INTO THE MILITARY ...  ." 

THE ONLY OTHER AUTHORITIES CITED IN SUPPORT OF COURT-MARTIAL
JURISDICTION OVER CIVILIANS APPEAR TO BE OPINIONS BY THE ATTORNEY
GENERAL AND THE JUDGE ADVOCATE GENERAL OF THE ARMY.  HOWEVER, THE 1866
OPINION OF THE JUDGE ADVOCATE GENERAL (CITED IN SUPPORT OF THE
GOVERNMENT'S POSITION) WAS REPUDIATED BY SUBSEQUENT JUDGE ADVOCATE
GENERALS.  (FN4)  TO BE SURE, THE 1872 OPINION OF THE ATTORNEY GENERAL,
DEALING WITH CIVILIANS SERVING WITH TROOPS IN THE BUILDING OF DEFENSIVE
EARTHWORKS TO PROTECT AGAINST THREATENED INDIAN UPRISINGS, IS ENTITLED
TO SOME WEIGHT.  HOWEVER, LIKE THE OTHER EXAMPLES OF FRONTIER
ACTIVITIES BASED ON THE LEGAL CONCEPT OF THE TROOPS' BEING "IN THE
FIELD," THEY ARE INAPPOSITE HERE.  THEY WERE IN TIME OF "HOSTILITIES"
WITH INDIAN TRIBES OR WERE IN "TERRITORIES" GOVERNED BY ENTIRELY
DIFFERENT CONSIDERATIONS.  SEE SECOND COVERT, AT 12-13.  SUCH OPINIONS,
HOWEVER, DO NOT HAVE THE FORCE OF JUDICIAL DECISIONS AND, WHERE SO
"EPISODIC," HAVE LITTLE WEIGHT IN THE REVIEWING OF ADMINISTRATIVE
PRACTICE.  MOREOVER, IN THE PERFORMANCE OF SUCH FUNCTIONS AS WERE
INVOLVED THERE, THE MILITARY SERVICE WOULD TODAY USE ENGINEERING CORPS
SUBJECT TO ITS JURISDICTION.  THIS BEING ENTIRELY PRACTICAL, AS WE
HEREAFTER POINT OUT, AS TO ALL CIVILIANS SERVING WITH THE ARMED FORCES
TODAY, WE BELIEVE THE TOTH DOCTRINE, THAT WE MUST LIMIT THE COVERAGE OF
CLAUSE 14 TO "THE LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED,"
350 U.S., AT 23, TO BE CONTROLLING. 

IN THE CONSIDERATION OF THE CONSTITUTIONAL QUESTION HERE WE BELIEVE
IT SHOULD BE POINTED OUT THAT, IN ADDITION TO THE ALTERNATIVE TYPES OF
PROCEDURE AVAILABLE TO THE GOVERNMENT IN THE PROSECUTION OF CIVILIAN
DEPENDENTS AND MENTIONED IN KINSELLA V. SINGLETON, SUPRA, ADDITIONAL
PRACTICAL ALTERNATIVES HAVE BEEN SUGGESTED IN THE CASE OF EMPLOYEES OF
THE ARMED SERVICES.  ONE SOLUTION MIGHT POSSIBLY BE TO FOLLOW A
PROCEDURE ALONG THE LINE OF THAT PROVIDED FOR PAYMASTERS' CLERKS AS
APPROVED IN EX PARTE REED, SUPRA.  ANOTHER WOULD INCORPORATE THOSE
CIVILIAN EMPLOYEES WHO ARE TO BE STATIONED OUTSIDE THE UNITED STATES
DIRECTLY INTO THE ARMED SERVICES, EITHER BY COMPULSORY INDUCTION OR BY
VOLUNTARY ENLISTMENT.  IF A DOCTOR OR DENTIST MAY BE "DRAFTED" INTO THE
ARMED SERVICES, 50 U.S.C. APP. SEC. 454(I), EXTENDED, 73 STAT. 13;
ORLOFF V. WILLOUGHBY, 345 U.S. 83 (1953), THERE SHOULD BE NO LEGAL
OBJECTION TO THE ORGANIZATION AND RECRUITMENT OF OTHER CIVILIAN
SPECIALISTS NEEDED BY THE ARMED SERVICES. 

MOREOVER, THE ARMED SERVICES PRESENTLY HAVE SUFFICIENT AUTHORITY TO
SET UP A SYSTEM FOR THE VOLUNTARY ENLISTMENT OF "SPECIALISTS."  THIS
WAS DONE WITH MUCH SUCCESS DURING THE SECOND WORLD WAR.   "THE NAVY'S
CONSTRUCTION BATTALIONS, POPULARLY KNOWN AS THE SEABEES, WERE
ESTABLISHED TO MEET THE WARTIME NEED FOR UNIFORMED MEN TO PERFORM
CONSTRUCTION WORK IN COMBAT AREAS."  1 BUILDING THE NAVY'S BASES IN
WORLD WAR II (1947) 133.  JUST AS ELECTRICIANS, CLERKS, DRAFTSMEN, AND
SURVEYORS WERE ENLISTED AS "SPECIALISTS" IN THE SEABEES, ID., AT 136,
PROVISIONS CAN BE MADE FOR THE VOLUNTARY ENLISTMENT OF AN ELECTRICIAN
(GUAGLIARDO), AN AUDITOR (WILSON), OR AN ACCOUNTANT (GRISHAM).  IT
LIKEWISE APPEARS ENTIRELY POSSIBLE THAT THE PRESENT "SPECIALIST"
PROGRAM CONDUCTED BY THE DEPARTMENT OF THE ARMY (FN5) COULD BE UTILIZED
TO REPLACE CIVILIAN EMPLOYEES IF DISCIPLINARY PROBLEMS REQUIRE MILITARY
CONTROL.  ALTHOUGH SOME WORKERS MIGHT HESITATE TO GIVE UP THEIR
CIVILIAN STATUS FOR GOVERNMENT EMPLOYMENT OVERSEAS, IT IS UNLIKELY THAT
THE ARMED FORCES WOULD BE UNABLE TO OBTAIN A SUFFICIENT NUMBER OF
VOLUNTEERS TO MEET THEIR REQUIREMENTS.  THE INCREASED COST TO MAINTAIN
THESE EMPLOYEES IN A MILITARY STATUS IS THE PRICE THE GOVERNMENT MUST
PAY IN ORDER TO COMPLY WITH CONSTITUTIONAL REQUIREMENTS. 

THE JUDGMENT IN NO. 21 IS AFFIRMED AND THE JUDGMENT IN NO. 37 IS
REVERSED.  NO. 21, AFFIRMED.  NO. 37, REVERSED. 

FN1  ARTICLE 2.  "THE FOLLOWING PERSONS ARE SUBJECT TO THIS CHAPTER: 

     *         *         *   *         * 

"(11)  SUBJECT TO ANY TREATY OR AGREEMENT TO WHICH THE UNITED STATES
IS OR MAY BE A PARTY OR TO ANY ACCEPTED RULE OF INTERNATIONAL LAW,
PERSONS SERVING WITH, EMPLOYED BY, OR ACCOMPANYING THE ARMED FORCES
OUTSIDE THE UNITED STATES AND OUTSIDE THE FOLLOWING:  THAT PART OF
ALASKA EAST OF LONGITUDE 172 DEGREES WEST, THE CANAL ZONE, THE MAIN
GROUP OF THE HAWAIIAN ISLANDS, PUERTO RICO, AND THE VIRGIN ISLANDS." 

FN2  SINCE THE OFFENSE OCCURRED WITHIN THE UNITED STATES AREA OF
CONTROL OF WEST BERLIN, THE GOVERNMENT NOW CONTENDS THAT PETITIONER
WILSON IS AMENABLE TO THE MILITARY GOVERNMENT JURISDICTION OF AN
OCCUPIED TERRITORY.  HOWEVER THE CHARGES WERE DRAWN IN TERMS OF ARTICLE
2(11) POWER, AND JURISDICTION WAS SUSTAINED ON THAT BASIS.  MOREOVER
THE COURT OF MILITARY APPEALS REFUSED TO CONSIDER THAT ISSUE WHEN
RAISED BY THE GOVERNMENT AND THE TRIAL COURT DID NOT REST ITS DECISION
SUSTAINING MILITARY JURISDICTION OVER PETITIONER ON THAT GROUNDS.  THIS
CONTENTION IS CONSEQUENTLY DENIED. 

FN3  WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED. 1896), 143.  SEE
ALSO, EX PARTE MILLIGAN, 4 WALL.  2, 121, 123 (1866); MALTBY, COURTS
MARTIAL AND MILITARY LAW, 37; RAWLE, CONSTITUTION (2D ED. 1829), 220; 3
OP. ATTY. GEN. 690; 5 ID., AT 736; 13 ID., AT 63. 

FN4  SEE 16 OP. ATTY. GEN. 13; ID., AT 48; DIG.  OP. JAG (1901), 563,
PARA. 2023; ID. (1895), AT 599-600, PARA. 4; ID. (1880), AT 384, PARA.
4. 

FN5  SEE ARMY REGULATIONS 600-201, 20 JUNE 1956, AS CHANGED 15 MARCH
1957, AND ARMY REGULATIONS 624-200, 19 MAY 1958, AS CHANGED 1 JULY
1959. 

FOR OPINION OF MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE FRANKFURTER,
SEE ANTE, P. 249. 

FOR OPINION OF MR. JUSTICE WHITTAKER, JOINED BY MR. JUSTICE STEWART,
SEE ANTE, P. 259. 
..END :








MITCHELL V. ROBERT DEMARIO JEWELRY, INC. 361 U.S. 288 


NO. 39.  ARGUED NOVEMBER 16, 1959 - DECIDED JANUARY 18, 1960 - 260 F.2D
929, REVERSED. 


IN AN ACTION BY THE SECRETARY OF LABOR UNDER SEC. 17 OF THE FAIR LABOR
STANDARDS ACT OF 1938, AS AMENDED, TO RESTRAIN VIOLATIONS OF SEC.
15(A)(3), A DISTRICT COURT HAS JURISDICTION TO ORDER AN EMPLOYER TO
REIMBURSE EMPLOYEES UNLAWFULLY DISCHARGED OR OTHERWISE DISCRIMINATED
AGAINST FOR WAGES LOST BECAUSE OF THAT DISCHARGE OR DISCRIMINATION. 
PP. 289-296. 

(A)  THE JURISDICTION CONFERRED BY SEC. 17 IS NOT TO BE NARROWLY
CONSTRUED AS INCLUDING ONLY THE POWERS EXPRESSLY CONFERRED OR
NECESSARILY IMPLIED FROM ITS LANGUAGE.  THE JURISDICTION IS EQUITABLE
AND INCLUDES THE POWER TO PROVIDE COMPLETE RELIEF IN THE LIGHT OF THE
STATUTORY PURPOSE.  PP. 290-292. 

(B)  BY THE PROSCRIPTION OF RETALIATORY ACTS SET FORTH IN SEC.
15(A)(3) AND ITS ENFORCEMENT IN EQUITY BY THE SECRETARY UNDER SEC. 17,
CONGRESS SOUGHT TO FOSTER A CLIMATE IN WHICH COMPLIANCE WITH THE ACT
WOULD BE ENHANCED.  P. 292. 

(C)  THE ACT SHOULD NOT BE CONSTRUED AS ENABLING EMPLOYEES TO RESORT
TO STATUTORY REMEDIES TO OBTAIN RESTITUTION OF PARTIAL DEFICIENCIES IN
WAGES DUE FOR PAST WORK, ONLY AT THE RISK OF IRREMEDIABLE LOSS OF
ENTIRE PAY FOR AN UNPREDICTABLE FUTURE PERIOD.  PP. 292-293. 

(D)  THE PROVISO ADDED TO SEC. 17 BY THE 1949 AMENDMENT, WHICH
DISABLED COURTS IN ACTIONS UNDER SEC. 17 FROM AWARDING "UNPAID MINIMUM
WAGES OR UNPAID OVERTIME COMPENSATION OR AN ADDITIONAL EQUAL AMOUNT AS
LIQUIDATED DAMAGES," WAS NOT INTENDED TO APPLY TO REIMBURSEMENT OF LOST
WAGES INCIDENT TO WRONGFUL DISCHARGE.  PP. 293-296. 

MITCHELL, SECRETARY OF LABOR, V. ROBERT DEMARIO JEWELRY, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

1068, 29 U.S.C.  SEC. 215(A)(3), MAKES IT UNLAWFUL FOR AN EMPLOYER
COVERED BY THAT ACT: 

"TO DISCHARGE OR IN ANY OTHER MANNER DISCRIMINATE AGAINST ANY
EMPLOYEE BECAUSE SUCH EMPLOYEE HAS FILED ANY COMPLAINT OR INSTITUTED OR
CAUSED TO BE INSTITUTED ANY PROCEEDING UNDER OR RELATED TO THIS ACT
...  ." 

BY SEC. 17 OF THE ACT, 52 STAT. 1069, AS AMENDED, 29 U.S.C. SEC. 217,
THE DISTRICT COURTS ARE GIVEN JURISDICTION: 

"FOR CAUSE SHOWN, TO RESTRAIN VIOLATIONS OF SECTION 15:  (FN1)
PROVIDED, THAT NO COURT SHALL HAVE JURISDICTION, IN ANY ACTION BROUGHT
BY THE SECRETARY OF LABOR TO RESTRAIN SUCH VIOLATIONS, TO ORDER THE
PAYMENT TO EMPLOYEES OF UNPAID MINIMUM WAGES OR UNPAID OVERTIME
COMPENSATION OR AN ADDITIONAL EQUAL AMOUNT AS LIQUIDATED DAMAGES IN
SUCH ACTION." 

THE QUESTION FOR DECISION IS WHETHER, IN AN ACTION BROUGHT BY THE
SECRETARY OF LABOR TO ENJOIN VIOLATIONS OF SEC. 15(A)(3), SECTION 17
EMPOWERS A DISTRICT COURT TO ORDER REIMBURSEMENT FOR LOSS OF WAGES
CAUSED BY AN UNLAWFUL DISCHARGE OR OTHER DISCRIMINATION. 

THE FACTS, AS FOUND BY THE DISTRICT COURT, (FN2) ARE NOT IN DISPUTE. 
SEVERAL OF THE EMPLOYEES OF THE RESPONDENT CORPORATION HAD SOUGHT THE
AID OF THE SECRETARY OF LABOR, PETITIONER HERE, IN SEEKING TO RECOVER
WAGES ALLEGEDLY UNPAID IN VIOLATION OF SECS. 6(A) AND 7(A) OF THE ACT. 
THE SECRETARY INSTITUTED AN ACTION PURSUANT TO SEC. 16(C) OF THE
STATUTE, 63 STAT. 919, 29 U.S.C. SEC. 216(C), ON BEHALF OF THE
AGGRIEVED EMPLOYEES, FOR THE RECOVERY OF THE UNPAID COMPENSATION. 
AFTER THE COMMENCEMENT OF SUCH ACTION, RESPONDENTS COMMENCED A COURSE
OF DISCRIMINATORY CONDUCT AGAINST THREE OF THE COMPLAINING EMPLOYEES,
CULMINATING IN THEIR DISCHARGE.  IN A SECOND ACTION BY THE SECRETARY,
PURSUANT TO SEC. 17, THIS DISCRIMINATION WAS FOUND BY THE DISTRICT
COURT TO HAVE BEEN CAUSED BY RESPONDENTS'"DISPLEASURE" OVER THE ACTIONS
OF THE EMPLOYEES IN AUTHORIZING SUIT. 

FINDING THE EVIDENCE OF UNLAWFUL DISCRIMINATION "CLEAR AND
CONVINCING," THE DISTRICT COURT GRANTED AN INJUNCTION AGAINST FURTHER
DISCRIMINATION AND ORDERED REINSTATEMENT OF THE THREE DISCHARGED
EMPLOYEES, WITHOUT LOSS OF SENIORITY.  AS TO REIMBURSEMENT FOR LOSS OF
WAGES, THE COURT, EXPRESSLY RESERVING THE QUESTION WHETHER IT HAD
JURISDICTION TO ORDER SUCH REIMBURSEMENT, DECLINED IN THE EXERCISE OF
ITS DISCRETION TO DO SO.  ON APPEAL, THE COURT OF APPEALS DID NOT REACH
THE QUESTION OF ABUSE OF DISCRETION, FOR IT HELD THAT THE DISTRICT
COURT LACKED JURISDICTION TO ORDER REIMBURSEMENT OF LOST WAGES
RESULTING FROM AN UNLAWFUL DISCHARGE.  260 F.2D 929.  THE DECISION
BEING IN CONFLICT WITH THAT OF THE COURT OF APPEALS FOR THE SECOND
CIRCUIT IN WALLING V. O'GRADY, 146 F.2D 422, WE GRANTED CERTIORARI. 
359 U.S. 964. 

WE INITIALLY CONSIDER SEC. 17 APART FROM THE EFFECT OF ITS PROVISO,
WHICH WAS ADDED IN 1949.  THE COURT BELOW TOOK AS THE TOUCHSTONE FOR
DECISION THE PRINCIPLE THAT TO BE UPHELD THE JURISDICTION HERE
CONTESTED "MUST BE EXPRESSLY CONFERRED BY AN ACT OF CONGRESS OR BE
NECESSARILY IMPLIED FROM A CONGRESSIONAL ENACTMENT."  260 F.2D, AT
933.  IN THIS THE COURT WAS MISTAKEN.  THE PROPER CRITERION IS THAT
LAID DOWN IN PORTER V. WARNER CO., 328 U.S. 395.  THIS COURT THERE
DEALT WITH AN ACTION BROUGHT BY THE PRICE ADMINISTRATOR UNDER THE
EMERGENCY PRICE CONTROL ACT OF 1942 TO ENJOIN THE COLLECTION OF
EXCESSIVE RENTS AND TO REQUIRE THE LANDLORD TO REIMBURSE ITS TENANTS
FOR MONEYS PAID AS A RESULT OF PAST VIOLATIONS.  WE UPHELD THE IMPLIED
POWER TO ORDER REIMBURSEMENT, IN LANGUAGE OF THE GREATEST RELEVANCE
HERE: 

"THUS THE ADMINISTRATOR INVOKED THE JURISDICTION OF THE DISTRICT
COURT TO ENJOIN ACTS AND PRACTICES MADE ILLEGAL BY THE ACT AND TO
ENFORCE COMPLIANCE WITH THE ACT.  SUCH A JURISDICTION IS AN EQUITABLE
ONE.  UNLESS OTHERWISE PROVIDED BY STATUTE, ALL THE INHERENT EQUITABLE
POWERS OF THE DISTRICT COURT ARE AVAILABLE FOR THE PROPER AND COMPLETE
EXERCISE OF THAT JURISDICTION.  AND SINCE THE PUBLIC INTEREST IS
INVOLVED IN A PROCEEDING OF THIS NATURE, THOSE EQUITABLE POWERS ASSUME
AN EVEN BROADER AND MORE FLEXIBLE CHARACTER THAN WHEN ONLY A PRIVATE
CONTROVERSY IS AT STAKE  ...  . THE COURT MAY GO BEYOND THE MATTERS
IMMEDIATELY UNDERLYING ITS EQUITABLE JURISDICTION  ...  AND GIVE
WHATEVER OTHER RELIEF MAY BE NECESSARY UNDER THE CIRCUMSTANCES  ...  . 

"MOREOVER, THE COMPREHENSIVENESS OF THIS EQUITABLE JURISDICTION IS
NOT TO BE DENIED OR LIMITED IN THE ABSENCE OF A CLEAR AND VALID
LEGISLATIVE COMMAND.  UNLESS A STATUTE IN SO MANY WORDS, OR BY A
NECESSARY AND INESCAPABLE INFERENCE, RESTRICTS THE COURT'S JURISDICTION
IN EQUITY, THE FULL SCOPE OF THAT JURISDICTION IS TO BE RECOGNIZED AND
APPLIED.  'THE GREAT PRINCIPLES OF EQUITY, SECURING COMPLETE JUSTICE,
SHOULD NOT BE YIELDED TO LIGHT INFERENCES, OR DOUBTFUL CONSTRUCTION.' 
BROWN V. SWANN, 10 PET. 497, 503  ...  ."  328 U.S., AT 397-398. 

THE APPLICABILITY OF THIS PRINCIPLE IS NOT TO BE DENIED, EITHER
BECAUSE THE COURT THERE CONSIDERED A WARTIME STATUTE, OR BECAUSE,
HAVING SET FORTH THE GOVERNING INQUIRY, IT WENT ON TO FIND IN THE
LANGUAGE OF THE STATUTE AFFIRMATIVE CONFIRMATION OF THE POWER TO ORDER
REIMBURSEMENT.  ID., AT 399.  WHEN CONGRESS ENTRUSTS TO AN EQUITY COURT
THE ENFORCEMENT OF PROHIBITIONS CONTAINED IN A REGULATORY ENACTMENT, IT
MUST BE TAKEN TO HAVE ACTED COGNIZANT OF THE HISTORIC POWER OF EQUITY
TO PROVIDE COMPLETE RELIEF IN LIGHT OF THE STATUTORY PURPOSES.  AS THIS
COURT LONG AGO RECOGNIZED, "THERE IS INHERENT IN THE COURTS OF EQUITY A
JURISDICTION TO  ...  GIVE EFFECT TO THE POLICY OF THE LEGISLATURE." 
CLARK V. SMITH, 13 PET. 195, 203.  TO THE POLICY OF THE FAIR LABOR
STANDARDS ACT WE THEREFORE NOW TURN. 

THE CENTRAL AIM OF THE ACT WAS TO ACHIEVE, IN THOSE INDUSTRIES WITHIN
ITS SCOPE, CERTAIN MINIMUM LABOR STANDARDS.  SEE SEC. 2 OF THE ACT, 52
STAT. 1060, 29 U.S.C. SEC. 202.  THE PROVISIONS OF THE STATUTE AFFECT
WEEKLY WAGE DEALINGS BETWEEN VAST NUMBERS OF BUSINESS ESTABLISHMENTS
AND EMPLOYEES.  FOR WEIGHTY PRACTICAL AND OTHER REASONS, CONGRESS DID
NOT SEEK TO SECURE COMPLIANCE WITH PRESCRIBED STANDARDS THROUGH
CONTINUING DETAILED FEDERAL SUPERVISION OR INSPECTION OF PAYROLLS. 
RATHER IT CHOSE TO RELY ON INFORMATION AND COMPLAINTS RECEIVED FROM
EMPLOYEES SEEKING TO VINDICATE RIGHTS CLAIMED TO HAVE BEEN DENIED. 
PLAINLY, EFFECTIVE ENFORCEMENT COULD THUS ONLY BE EXPECTED IF EMPLOYEES
FELT FREE TO APPROACH OFFICIALS WITH THEIR GRIEVANCES.  THIS END THE
PROHIBITION OF SEC. 15(A)(3) AGAINST DISCHARGES AND OTHER
DISCRIMINATORY PRACTICES WAS DESIGNED TO SERVE.  FOR IT NEEDS NO
ARGUMENT TO SHOW THAT FEAR OF ECONOMIC RETALIATION MIGHT OFTEN OPERATE
TO INDUCE AGGRIEVED EMPLOYEES QUIETLY TO ACCEPT SUBSTANDARD
CONDITIONS.  CF. HOLDEN V. HARDY, 169 U.S. 366, 397.  BY THE
PROSCRIPTION OF RETALIATORY ACTS SET FORTH IN SEC. 15(A)(3), AND ITS
ENFORCEMENT IN EQUITY BY THE SECRETARY PURSUANT TO SEC. 17, CONGRESS
SOUGHT TO FOSTER A CLIMATE IN WHICH COMPLIANCE WITH THE SUBSTANTIVE
PROVISIONS OF THE ACT WOULD BE ENHANCED. 

IN THIS CONTEXT, THE SIGNIFICANCE OF REIMBURSEMENT OF LOST WAGES
BECOMES APPARENT.  TO AN EMPLOYEE CONSIDERING AN ATTEMPT TO SECURE HIS
JUST WAGE DESERTS UNDER THE ACT, THE VALUE OF SUCH AN EFFORT MAY PALE
WHEN SET AGAINST THE PROSPECT OF DISCHARGE AND THE TOTAL LOSS OF WAGES
FOR THE INDETERMINATE PERIOD NECESSARY TO SEEK AND OBTAIN
REINSTATEMENT.  RESORT TO STATUTORY REMEDIES MIGHT THUS OFTEN TAKE ON
THE CHARACTER OF A CALCULATED RISK, WITH RESTITUTION OF PARTIAL
DEFICIENCIES IN WAGES DUE FOR PAST WORK PERHAPS OBTAINABLE ONLY AT THE
COST OF IRREMEDIABLE ENTIRE LOSS OF PAY FOR AN UNPREDICTABLE PERIOD. 
FACED WITH SUCH ALTERNATIVES, EMPLOYEES UNDERSTANDABLY MIGHT DECIDE
THAT MATTERS HAD BEST BE LEFT AS THEY ARE.  WE CANNOT READ THE ACT AS
PRESENTING THOSE IT SOUGHT TO PROTECT WITH WHAT IS LITTLE MORE THAN A
HOBSON'S CHOICE. 

RESPONDENTS ARGUE THAT, IN THE ABSENCE OF A CONTRARY CONTRACTUAL
PROVISION, AN EMPLOYEE CANNOT RECOVER LOST WAGES OWING TO A
DISCRIMINATORY DISCHARGE, AND THAT THE JURISDICTION HERE INVOKED IS
THEREFORE TO BE REGARDED AS "PUNITIVE," OUTSIDE THE FUNCTION OF EQUITY
UNLESS EXPRESSLY AUTHORIZED BY THE STATUTE.  WE INTIMATE NO VIEW AS TO
THE VALIDITY OF THE PREMISE, FOR IT IN NO WAY SUPPORTS THE CONCLUSION. 
WHATEVER THE RIGHTS OF THE PARTIES MAY BE UNDER TRADITIONAL NOTIONS OF
CONTRACT LAW, IT IS CLEAR THAT UNDER SEC. 15(A)(3) SUCH A DISCHARGE IS
NOT PERMISSIBLE.  EVEN ASSUMING, WITHOUT DECIDING, THAT THE ACT DID NOT
CONTEMPLATE THE PRIVATE VINDICATION OF RIGHTS IT BESTOWED, (FN3) THE
PUBLIC REMEDY IS NOT THEREBY RENDERED PUNITIVE, WHERE THE MEASURE OF
REIMBURSEMENT IS COMPENSATORY ONLY.  RESPONDENTS CANNOT BE HEARD TO
ASSERT THAT WAGES ARE ORDERED TO BE PAID FOR SERVICES WHICH WERE NOT
PERFORMED, FOR IT WAS THE EMPLOYER'S OWN UNLAWFUL CONDUCT WHICH
DEPRIVED THE EMPLOYEES OF THEIR OPPORTUNITY TO RENDER SERVICES. 

IT IS CONTENDED, HOWEVER, THAT EVEN THOUGH EQUITABLE JURISDICTION TO
RESTORE LOST WAGES RESULTING FROM AN UNLAWFUL DISCHARGE MAY ORIGINALLY
HAVE EXISTED UNDER SEC. 17, SUCH JURISDICTION WAS WITHDRAWN BY THE 1949
PROVISO WHICH DISABLED COURTS IN SEC. 17 ACTIONS FROM AWARDING "UNPAID
MINIMUM WAGES OR UNPAID OVERTIME COMPENSATION OR AN ADDITIONAL EQUAL
AMOUNT AS LIQUIDATED DAMAGES  ... ."  ANTE, P. 289.  WHEN CONSIDERED
AGAINST ITS BACKGROUND WE THINK THE PROVISO HAS NO SUCH EFFECT. 

SHORTLY BEFORE THE ENACTMENT OF THIS PROVISO THE COURT OF APPEALS FOR
THE SECOND CIRCUIT HAD DECIDED IN MCCOMB V. FRANK SCERBO & SONS, 177
F.2D 137, THAT IN A SEC. 17 SUIT BROUGHT BY THE SECRETARY TO ENJOIN
VIOLATIONS OF THE MINIMUM WAGE AND OVERTIME PROVISIONS OF THE ACT, THE
COURT HAD POWER TO ORDER REIMBURSEMENT OF UNPAID OVERTIME WAGES.  THE
EFFECT OF THIS DECISION WAS TO ENABLE THE SECRETARY IN SUCH A SUIT TO
RECOVER ON BEHALF OF EMPLOYEES THAT WHICH WOULD OTHERWISE HAVE BEEN
RECOVERABLE ONLY IN AN ACTION BROUGHT BY THE EMPLOYEES THEMSELVES UNDER
SEC. 16(B) OF THE STATUTE, 52 STAT. 1069, 29 U.S.C. SEC. 216(B).  THE
SEC. 17 PROVISO WAS AIMED AT DOING AWAY WITH THIS RESULT.   EVEN SO,
CONGRESS DID NOT SEE FIT TO UNDO THE EFFECTS OF SCERBO ENTIRELY, FOR AT
THE TIME IT ENACTED THE SEC. 17 PROVISO IT ALSO ADDED TO THE ACT SEC.
16(C), WHEREBY THE SECRETARY WAS EMPOWERED TO BRING A REPRESENTATIVE
ACTION ON BEHALF OF EMPLOYEES TO RECOVER UNPAID WAGES IN CASES OTHER
THAN THOSE INVOLVING "AN ISSUE OF LAW WHICH HAS NOT BEEN SETTLED
FINALLY BY THE COURTS."  63 STAT. 919, 29 U.S.C.  SEC. 216(C).  (FN4)
THUS, PRESUMABLY CONGRESS FELT THAT THE SECRETARY SHOULD NOT LEND HIS
WEIGHT TO, NOR BE BURDENED WITH, ACTIONS FOR UNPAID WAGES EXCEPT IN THE
CLEAREST CASES. 

WE FIND NO INDICATION IN THE LANGUAGE OF THE SEC. 17 PROVISO, OR IN
THE LEGISLATIVE HISTORY, THAT CONGRESS INTENDED THE PROVISO TO HAVE A
WIDER EFFECT, THAT IS, THAT IT WAS INTENDED TO APPLY TO REIMBURSEMENT
OF LOST WAGES INCIDENT TO A WRONGFUL DISCHARGE, AS DISTINGUISHED FROM
THE RECOUPMENT OF UNDERPAYMENTS OF THE STATUTORILY PRESCRIBED RATES FOR
THOSE WHILE STILL EMPLOYED.  THE PROVISO SPEAKS ENTIRELY IN TERMS OF
UNPAID MINIMUM WAGES AND OVERTIME.  IN EFFECTUATING THE POLICIES OF THE
ACT THE PROPER REACH OF EQUITY POWER IN SUITS BY THE SECRETARY UNDER
THE WAGE PROVISIONS OF THE STATUTE, AND THAT IN SUITS UNDER THE
DISCHARGE PROVISIONS, ARE ATTENDED BY QUITE DIFFERENT CONSIDERATIONS,
WHICH, IN PASSING THE 1949 AMENDMENTS, CONGRESS EVIDENTLY HAD IN MIND. 
WE ARE NOT PERSUADED BY RESPONDENTS' ARGUMENT THAT BECAUSE THE SECOND
CIRCUIT IN SCERBO PARTIALLY RELIED ON ITS EARLIER DECISION IN WALLING
V. O'GRADY, SUPRA, AND BECAUSE THE HOUSE CONFERENCE REPORT ON THE 1949
AMENDMENTS STATED THAT THE SEC. 17 PROVISO "WILL HAVE THE EFFECT OF
REVERSING SUCH DECISIONS AS MCCOMB V. SCERBO  ...  IN WHICH THE COURT
INCLUDED A RESTITUTION ORDER IN AN INJUNCTION DECREE GRANTED UNDER
THE PROVISO MUST BE TAKEN AS HAVING BEEN INTENDED TO OVERRULE THE
O'GRADY CASE AS WELL.  O'GRADY WAS A DISCRIMINATORY DISCHARGE CASE, NOT
A WAGE CASE AS WAS SCERBO.  AND BEFORE THE 1949 AMENDMENTS EXPRESSIONS
OF OTHER LOWER COURTS HAD INDICATED A POINT OF VIEW SIMILAR TO THAT
ESPOUSED IN SCERBO.  SEE FLEMING V. ALDERMAN, 51 F. SUPP. 800; WALLING
V. MILLER, 138 F.2D 629; FLEMING V. WARSHAWSKY & CO., 123 F.2D 622. 

RATHER THAN EXPRESSING A GENERAL REPUDIATION OF EQUITABLE
JURISDICTION TO ORDER REIMBURSEMENT TO EFFECTUATE THE POLICIES OF THE
ACT, WE THINK THAT THE 1949 AMENDMENTS EVIDENCE A PURPOSE TO MAKE ONLY
LIMITED MODIFICATIONS IN THE NATURE AND EXTENT OF THE SECRETARY'S POWER
TO OBTAIN REIMBURSEMENT OF UNPAID COMPENSATION.  (FN5)  THIS BEING SO,
THERE IS NO WARRANT FOR CONSTRUING THE SEC. 17 PROVISO AS REACHING
BEYOND SUITS TO ENJOIN VIOLATIONS OF THE MINIMUM WAGE AND OVERTIME
PROVISIONS OF THE STATUTE, SO AS WHOLLY TO ERADICATE ANY JURISDICTION
TO RESTORE WAGE LOSSES TO EMPLOYEES DISCHARGED IN VIOLATION OF SEC.
15(A)(3).  TO THE CONTRARY, IN VIEW OF THE RELATED CHARACTER OF THE
ISSUES PRESENTED IN O'GRADY AND SCERBO, THE MODIFICATION IN THE AREA
TREATED BY THE LATTER CASE BESPEAKS AN INTENTION TO LEAVE THE O'GRADY
DECISION INTACT.  THE 1949 AMENDMENTS, THEN, ONLY SERVE TO CONFIRM THE
RESULT WE REACH INDEPENDENTLY OF THEM.    WE HOLD THAT, IN AN ACTION BY
THE SECRETARY TO RESTRAIN VIOLATIONS OF SEC. 15(A)(3), A DISTRICT COURT
HAS JURISDICTION TO ORDER AN EMPLOYER TO REIMBURSE EMPLOYEES,
UNLAWFULLY DISCHARGED OR OTHERWISE DISCRIMINATED AGAINST, FOR WAGES
LOST BECAUSE OF THAT DISCHARGE OR DISCRIMINATION.  THE COURT OF APPEALS
DID NOT REACH THE QUESTION WHETHER THE DISTRICT COURT ABUSED ITS
DISCRETION IN DECLINING TO ORDER REIMBURSEMENT.  WHILE, BECAUSE OF WHAT
WE HAVE FOUND TO BE THE STATUTORY PURPOSES THERE IS DOUBTLESS LITTLE
ROOM FOR THE EXERCISE OF DISCRETION NOT TO ORDER REIMBURSEMENT, SINCE
WE DO NOT HAVE THE ENTIRE RECORD BEFORE US WE SHALL REMAND THE CASE TO
THE COURT OF APPEALS FOR CONSIDERATION OF THAT ISSUE.  REVERSED AND
REMANDED. 

FN1  IN ADDITION TO THE CONDUCT PROHIBITED BY SEC. 15(A)(3), VARIOUS
OTHER ACTIVITIES ARE PROSCRIBED BY PARAGRAPHS (1), (2), (4), AND (5) OF
SUBDIVISION (A) OF THAT SECTION. 

FN2  THE OPINION OF THE DISTRICT COURT IS REPORTED IN 13 WH CASES
709. 

FN3  CF. BONNER V. ELIZABETH ARDEN, INC., 177 F.2D 703, 705; POWELL
V. WASHINGTON POST CO., 105 U.S. APP. D.C. 374, 375, 267 F.2D 651,
652. 

FN4  A FURTHER LIMITATION WAS THAT THERE WOULD BE NO RIGHT TO SEEK
DOUBLE DAMAGES, WHICH ARE RECOVERABLE ONLY IN ACTIONS BROUGHT BY
EMPLOYEES UNDER SEC. 16(B). 

FN5  THE CONFERENCE REPORT MAKES THIS CLEAR:  "THIS PROVISO HAS BEEN
INSERTED  ...  IN VIEW OF THE PROVISION OF THE CONFERENCE AGREEMENT
CONTAINED IN SECTION 16(C) OF THE ACT WHICH AUTHORIZES THE
ADMINISTRATOR IN CERTAIN CASES TO BRING SUITS FOR DAMAGES FOR UNPAID
MINIMUM WAGES AND OVERTIME COMPENSATION OWING TO EMPLOYEES AT THE
WRITTEN REQUEST OF SUCH EMPLOYEES.  UNDER THE CONFERENCE AGREEMENT THE
PROVISO DOES NOT PRECLUDE THE ADMINISTRATOR FROM JOINING IN A SINGLE
COMPLAINT CAUSES OF ACTION ARISING UNDER SECTION 16(C) AND SECTION
17."  H.R. CONF.  REP. NO. 1453, 81ST CONG., 1ST SESS., P. 32; SEE 95
CONG. REC. 14879. 

MR. JUSTICE DOUGLAS, WHILE JOINING IN THIS OPINION, AGREES WITH MUR. 
JUSTICE WHITTAKER THAT OTHER REMEDIES ARE AVAILABLE AND THAT ANY REMEDY
OBTAINED IN THIS EQUITY ACTION IS COMPLEMENTARY TO THEM. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
CLARK JOIN, DISSENTING. 

I CANNOT AGREE WITH THE COURT'S OPINION.  MY DISAGREEMENT RESTS ON
THE BELIEF THAT CONGRESS HAS EXPRESSLY WITHHELD JURISDICTION FROM
DISTRICT COURTS TO MAKE AWARDS AGAINST EMPLOYERS IN FAVOR OF EMPLOYEES
FOR "WAGES" LOST AS A RESULT OF UNLAWFUL DISCHARGES, IN INJUNCTION
ACTIONS, SUCH AS THIS, BROUGHT BY THE SECRETARY OF LABOR UNDER SEC. 17
OF THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1069, AS AMENDED, 29
U.S.C. SEC. 217. 

SEVERAL EMPLOYEES OF THE CORPORATE RESPONDENT, BELIEVING THAT THEY
HAD NOT BEEN PAID THE MINIMUM WAGES AND OVERTIME COMPENSATION
PRESCRIBED BY SECS. 6(A) AND 7(A) OF THE ACT, 29 U.S.C. SECS. 206(A),
207(A), REQUESTED THE SECRETARY OF LABOR, IN WRITING, TO INSTITUTE AN
ACTION AGAINST THE CORPORATE RESPONDENT UNDER SEC. 16(C) OF THE ACT, 29
U.S.C. SEC. 216(C), TO RECOVER THE AMOUNT OF THEIR CLAIMS.  THE
SECRETARY DID SO ON NOVEMBER 16, 1956.  SOON AFTERWARD, THREE OF THESE
EMPLOYEES WERE DISCHARGED.  ON MAY 17, 1957, THE SECRETARY BROUGHT
ANOTHER SUIT AGAINST RESPONDENTS IN THE SAME DISTRICT COURT - THIS TIME
UNDER SEC. 17 OF THE ACT, 29 U.S.C. SEC. 217 - COMPLAINING THAT
RESPONDENTS HAD DISCHARGED THE THREE EMPLOYEES IN VIOLATION OF SEC.
15(A)(3) OF THE ACT, 29 U.S.C. SEC. 215(A)(3), AND PRAYING FOR AN ORDER
ENJOINING RESPONDENTS FROM VIOLATING THE PROVISIONS OF THAT SECTION,
REINSTATING THE THREE EMPLOYEES, AND AWARDING REPARATIONS TO THEM FOR
WAGES LOST BECAUSE OF THEIR WRONGFUL DISCHARGE.  THE DISTRICT COURT
FOUND THAT THE EMPLOYEES HAD BEEN DISCHARGED, IN VIOLATION OF SEC.
15(A)(3), FOR INSTIGATING THE FIRST ACTION, ISSUED AN INJUNCTION
AGAINST RESPONDENTS FROM VIOLATING THAT SECTION, AND ORDERED
RESPONDENTS TO OFFER REINSTATEMENT TO THOSE EMPLOYEES.  BUT THE
DISTRICT JUDGE DOUBTED THAT HE HAD JURISDICTION UNDER SEC. 17 TO AWARD
REPARATIONS TO THE EMPLOYEES FOR THEIR LOST WAGES, AND HELD THAT, EVEN
IF HE DID HAVE JURISDICTION TO DO SO, SUCH AN AWARD OF REPARATIONS
SHOULD BE DENIED AS A MATTER OF DISCRETION.  ON THE SECRETARY'S APPEAL,
THE COURT OF APPEALS AFFIRMED, 260 F.2D 929, HOLDING THAT THE DISTRICT
COURT HAD NO JURISDICTION, IN AN INJUNCTION ACTION BROUGHT BY THE
SECRETARY UNDER SEC. 17, TO AWARD REPARATIONS FOR WAGES LOST BY THE
EMPLOYEES BECAUSE OF THEIR WRONGFUL DISCHARGE.  WE GRANTED CERTIORARI,
359 U.S. 964. 

THE QUESTION BEFORE US, THEN, IS WHETHER A DISTRICT COURT HAS
JURISDICTION IN AN INJUNCTION ACTION BROUGHT BY THE SECRETARY OF LABOR
UNDER SEC. 17 OF THE ACT TO MAKE AN AWARD OF REPARATIONS AGAINST AN
EMPLOYER IN FAVOR OF AN EMPLOYEE, FOUND TO HAVE BEEN WRONGFULLY
DISCHARGED AND ENTITLED TO REINSTATEMENT, FOR THE "WAGES" THAT HE LOST
BY BEING WRONGFULLY EXCLUDED FROM HIS JOB. 

THE COURT, HEAVILY RELYING UPON THE LONG REACH OF UNRESTRICTED
GENERAL EQUITY POWERS, PARTICULARLY AS ELUCIDATED IN PORTER V. WARNER
CO., 328 U.S. 395, 397-398, (FN1) HOLDS THAT A DISTRICT COURT DOES HAVE
SUCH JURISDICTION AND POWER. 

IT IS NOT TO BE DOUBTED THAT AN EQUITY COURT, PROCEEDING UNDER
UNRESTRICTED EQUITY POWERS, MAY DECREE ALL THE RELIEF, INCLUDING
INCIDENTAL LEGAL RELIEF, NECESSARY TO DO COMPLETE JUSTICE BETWEEN THE
PARTIES.  HERE, HOWEVER, THE DISTRICT COURT WAS PROCEEDING, NOT UNDER
UNRESTRICTED GENERAL EQUITY POWERS, BUT UNDER A STATUTE - SEC. 17 OF
THE ACT - THE PROVISO OF WHICH EXPRESSLY DENIES TO ALL COURTS
JURISDICTION AND POWER, IN AN ACTION BROUGHT BY THE SECRETARY FOR AN
INJUNCTION UNDER THAT SECTION, "TO ORDER THE PAYMENT TO EMPLOYEES OF
UNPAID MINIMUM WAGES OR UNPAID OVERTIME COMPENSATION OR AN ADDITIONAL
EQUAL AMOUNT AS LIQUIDATED DAMAGES IN SUCH ACTION." 

THE COURT DOES NOT DISPUTE THE FACT THAT CONGRESS BY THE PROVISO IN
SEC. 17 DEPRIVED THE COURTS OF JURISDICTION TO "ORDER THE PAYMENT TO
EMPLOYEES OF UNPAID MINIMUM WAGES OR UNPAID OVERTIME COMPENSATION  ...
" IN AN INJUNCTION ACTION BROUGHT BY THE SECRETARY UNDER THAT SECTION,
IN A CASE WHERE THE WAGES HAVE BEEN EARNED BY SERVICES RENDERED; BUT
THE COURT SEEMS TO THINK THAT AN AWARD OF REPARATIONS TO AN EMPLOYEE
FOR WAGES LOST BECAUSE OF A WRONGFUL DISCHARGE IS NOT ONE "ORDERING THE
PAYMENT TO EMPLOYEES OF UNPAID MINIMUM WAGES OR UNPAID OVERTIME
COMPENSATION  ...  " AND THAT, THEREFORE, THE COURT IS NOT DEPRIVED BY
THE PORVISO IN SEC. 17 OF JURISDICTION TO MAKE SUCH AN AWARD IN SUCH A
CASE.  HERE, I THINK, LIES THE FALLACY.  THE ONLY POSSIBLE BASIS OR
THEORY UNDER WHICH A WRONGFULLY DISCHARGED EMPLOYEE MIGHT RECOVER HIS
LOST WAGES IS THAT THE ATTEMPTED DISCHARGE, BEING UNLAWFUL, NEVER
BECAME EFFECTIVE, AND SINCE HE WAS UNLAWFULLY EXCLUDED FROM HIS JOB HIS
WAGES CONTINUED TO ACCRUE.  IT WOULD SEEM NECESSARILY TO FOLLOW THAT AN
AWARD FOR THOSE LOST "WAGES" WOULD BE AS MUCH ONE FOR "UNPAID MINIMUM
WAGES OR UNPAID OVERTIME COMPENSATION" AS WOULD AN AWARD FOR "WAGES"
FOR SERVICES ACTUALLY PERFORMED.  IF IT MAY BE THOUGHT THAT AN AWARD
FOR LOST WAGES SHOULD PROPERLY BE CALLED ONE FOR "DAMAGES," THE RESULT
WOULD BE THE SAME, FOR THE SOLE MEASURE OF SUCH "DAMAGES" WOULD BE THE
LOST WAGES.  HENCE, IT SEEMS INESCAPABLE THAT HOWEVER VIEWED AN AWARD
FOR WAGES LOST BECAUSE OF AN UNLAWFUL DISCHARGE IS ONE FOR, OR THAT AT
LEAST EMBRACES, UNPAID MINIMUM WAGES OR UNPAID OVERTIME COMPENSATION OR
BOTH. 

BEFORE CONGRESS ADDED SUBDIVISION (C) TO SEC. 16 AND THE PROVISO TO
SEC. 17 IN 1949, THE SECOND CIRCUIT HAD HELD IN WALLING V. O'GRADY, 146
F.2D 422, THAT A DISTRICT COURT, ACTING UNDER ITS UNRESTRICTED GENERAL
EQUITY POWERS, HAD JURISDICTION, IN A SUIT BROUGHT BY THE SECRETARY
UNDER SEC. 17 OF THE ACT AS IT THEN STOOD, TO ORDER NOT ONLY AN
INJUNCTION AGAINST VIOLATION OF THE PROVISIONS OF SEC. 15(A)(3) OF THE
ACT, AND REINSTATEMENT OF EMPLOYEES WRONGFULLY DISCHARGED, BUT ALSO AN
AWARD OF REPARATIONS FOR WAGES LOST BY EMPLOYEES BECAUSE OF THEIR
WRONGFUL DISCHARGE.  THEREAFTER, FOLLOWING, AS IT SAID, THE PRINCIPLES
IT ANNOUNCED IN THE O'GRADY CASE, THE SECOND CIRCUIT HELD IN MCCOMB V.
FRANK SCERBO & SONS, 177 F.2D 137, THAT A DISTRICT COURT, PROCEEDING
UNDER ITS UNRESTRICTED GENERAL EQUITY POWERS, HAD JURISDICTION, IN AN
INJUNCTION ACTION BROUGHT BY THE SECRETARY UNDER SEC. 17 AS IT THEN
STOOD, TO AWARD REPARATIONS TO EMPLOYEES FOR UNPAID MINIMUM WAGES AND
OVERTIME COMPENSATION TO WHICH THEIR PAST SERVICES ENTITLED THEM. 

EVIDENTLY DISSATISFIED WITH THOSE DECISIONS, CONGRESS PASSED THE ACT
OF OCT. 26, 1949, 63 STAT. 919, BY WHICH IT ADDED SUBSECTION (C) TO
SEC. 16 AND THE PROVISO TO SEC. 17 OF THE ACT.  BY SUBSECTION (C) (FN2)
OF SEC. 16, CONGRESS PROVIDED, IN EFFECT, THAT WHEN AN EMPLOYEE FILES A
WRITTEN REQUEST WITH THE SECRETARY CLAIMING UNPAID MINIMUM WAGES OR
UNPAID OVERTIME COMPENSATION UNDER SEC. 6 OR SEC. 7 OF THE ACT, "THE
SECRETARY MAY BRING AN ACTION IN ANY COURT OF COMPETENT JURISDICTION TO
RECOVER THE AMOUNT OF SUCH CLAIM  ...  ."  IN SUCH AN ACTION THE
SECRETARY, OF COURSE, SUES AS A TRUSTEE OR USE PLAINTIFF FOR THE
BENEFIT OF THE EMPLOYEE, AND THE ACTION IS ONE AT LAW TRIABLE BY A JURY
UNDER THE SEVENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.  THAT IS
THE ONLY REMEDY WHICH CONGRESS HAS PROVIDED FOR THE RECOVERY OF UNPAID
MINIMUM WAGES AND OVERTIME COMPENSATION BY SUIT INSTITUTED AND
PROSECUTED BY THE SECRETARY.  BY THE PROVISO TO SEC. 17, CONGRESS
PROVIDED:  "THAT NO COURT SHALL HAVE JURISDICTION, IN ANY ACTION
BROUGHT BY THE SECRETARY OF LABOR TO RESTRAIN SUCH VIOLATIONS, TO ORDER
THE PAYMENT TO EMPLOYEES OF UNPAID MINIMUM WAGES OR UNPAID OVERTIME
COMPENSATION OR AN ADDITIONAL EQUAL AMOUNT AS LIQUIDATED DAMAGES IN
SUCH ACTION."  THE CONFERENCE REPORT THAT ACCOMPANIED THAT BILL, H.R.
CONF. REP. NO. 1453, 81ST CONG., 1ST SESS., P. 32, SAID, RESPECTING THE
PROVISO, THAT:  "THE PROVISION  ...  WILL HAVE THE EFFECT OF REVERSING
SUCH DECISIONS AS MCCOMB V. SCERBO  ...  , IN WHICH THE COURT INCLUDED
A RESTITUTION ORDER IN AN INJUNCTION DECREE GRANTED UNDER SECTION 17." 
IT SEEMS EVIDENT FROM THAT STATEMENT OF THE CONFERENCE COMMITTEE THAT
CONGRESS INTENDED THE PROVISO TO, IN EFFECT, REVERSE NOT ONLY MCCOMB V.
SCERBO, BUT ALSO ALL OTHER "SUCH DECISIONS." 

NOT ONLY IS IT CLEAR FROM THE OPINIONS THEMSELVES THAT THE SECOND
CIRCUIT APPLIED THE SAME LEGAL PRINCIPLES IN SCERBO THAT IT HAD EARLIER
APPLIED IN O'GRADY, BUT, MOREOVER, THAT COURT SAID THAT IT DID SO.  IN
THE SCERBO CASE THE COURT SAID:  "DEFENDANTS ATTEMPT TO DISTINGUISH THE
O'GRADY CASE BECAUSE THE INDIVIDUAL EMPLOYEE'S RIGHT TO SUE FOR BACK
PAY LOST BY A DISCRIMINATORY DISCHARGE IS NOT EXPLICIT IN THE ACT.  WE
DO NOT AGREE THAT THE CASE IS DISTINGUISHABLE  ...  ."  177 F.2D, AT
138.  AND, IN HIS SEPARATE OPINION CONCURRING ONLY IN THE RESULT, JUDGE
LEARNED HAND'S OPENING SENTENCE WAS:  "I AGREE THAT THE DECISION BELOW
FOLLOWED FROM WHAT HAS BEEN DECIDED BEFORE  ...  ."  177 F.2D, AT 140. 
IT THUS SEEMS QUITE CLEAR, NOT ONLY FROM THE TERMS OF THE PROVISO BUT
ALSO FROM THE LEGISLATIVE HISTORY DECLARING ITS PURPOSE, THAT CONGRESS
INTENDED NOT ONLY TO DENY JURISDICTION TO DISTRICT COURTS, IN
INJUNCTION ACTIONS BROUGHT BY THE SECRETARY UNDER SEC. 17, TO AWARD
REPARATIONS FOR UNPAID MINIMUM WAGES OR OVERTIME COMPENSATION, BUT
ALSO, IN EFFECT, TO REVERSE "SUCH DECISIONS AS MCCOMB V. SCERBO." 
SURELY WALLING V. O'GRADY, SUPRA, WAS "SUCH A DECISION" AS MCCOMB V.
SCERBO.  (FN3) 

THIS REVIEW SEEMS PLAINLY TO SHOW THAT CONGRESS INTENDED BY SEC.
16(C) TO ALLOW RECOVERY OF UNPAID MINIMUM WAGES AND OVERTIME
COMPENSATION AT THE INSTANCE OF THE SECRETARY ONLY IN AN ACTION AT LAW,
BROUGHT UNDER THAT SUBSECTION, AND TRIABLE BY A JURY; AND THAT IT
INTENDED BY THE PROVISO TO SEC. 17 TO DENY JURISDICTION TO DISTRICT
COURTS, IN INJUNCTION ACTIONS BROUGHT BY THE SECRETARY UNDER THAT
WAGES AND UNPAID OVERTIME COMPENSATION," WHETHER EARNED BY THE
RENDITION OF SERVICES OR BY UNLAWFUL DENIAL OF THE OPPORTUNITY TO EARN
THEM. 

I THINK A WRONGFULLY DISCHARGED EMPLOYEE MAY MAINTAIN IN HIS OWN
RIGHT AN ACTION AT LAW, TRIABLE BY A JURY, UNDER EITHER SEC. 16(B) OR
THE COMMON LAW, OR THE SECRETARY MAY DO SO BY AN ACTION AT LAW UNDER
SEC. 16(C), TO RECOVER WAGES LOST BY THE EMPLOYEE AS A RESULT OF HIS
WRONGFUL DISCHARGE.  BUT, FOR THE REASONS HEREINBEFORE STATED, IT SEEMS
TO ME THAT THE COURT OF APPEALS WAS CORRECT IN HOLDING THAT THE
DISTRICT COURT WAS WITHOUT JURISDICTION TO MAKE AN AWARD OF REPARATIONS
FOR LOST WAGES IN THIS INJUNCTION ACTION BROUGHT BY THE SECRETARY UNDER
SEC. 17, AND I WOULD AFFIRM ITS JUDGMENT. 

FN1  PORTER V. WARNER, SUPRA, INVOLVED SEC. 205(A) OF THE EMERGENCY
PRICE CONTROL ACT OF 1942, 56 STAT. 23, 33, WHICH AUTHORIZED STATE AND
FEDERAL COURTS, UPON COMPLAINT OF THE ADMINISTRATOR, TO GRANT "A
PERMANENT OR TEMPORARY INJUNCTION, RESTRAINING ORDER, OR OTHER ORDER,"
TO ENFORCE COMPLIANCE WITH THE ACT AND ITS POLICY.  THERE THE
ADMINISTRATOR HAD SUED A LANDLORD TO ENJOIN COLLECTION OF EXCESSIVE
RENTS AND TO REQUIRE THE LANDLORD TO TENDER TO HIS TENANTS THE EXCESS
RENTS COLLECTED.  THE DISTRICT COURT GRANTED THE RELIEF PRAYED.  THIS
COURT APPROVED THAT ACTION, SAYING THAT "AN ORDER FOR THE RECOVERY AND
RESTITUTION OF ILLEGAL RENTS MAY BE CONSIDERED A PROPER 'OTHER ORDER'
...  ."  328 U.S., AT 399.  IT OBSERVED THAT THE REPORT OF THE SENATE
COMMITTEE, SUBMITTED WITH THE BILL THAT BECAME THE EMERGENCY PRICE
CONTROL ACT, STATED THAT UNDER SEC. 205(A) OF THAT ACT "  ...  SUCH
COURTS ARE GIVEN JURISDICTION TO ISSUE WHATEVER ORDER TO ENFORCE
COMPLIANCE IS PROPER IN THE CIRCUMSTANCES OF EACH PARTICULAR CASE." 
328 U.S., AT 400-401.  IN THE LIGHT OF THE PROVISIONS OF SEC. 205(A)
AND ITS LEGISLATIVE HISTORY, THIS COURT HELD "THAT THE TRADITIONAL
EQUITY POWERS OF A COURT REMAIN UNIMPAIRED IN A PROCEEDING UNDER THAT
400.    FN2  SUBDIVISION (C), ADDED TO SEC. 16 OF THE ACT BY CONGRESS
IN 1949, IN PERTINENT PART, PROVIDES: 

"  ...  WHEN A WRITTEN REQUEST IS FILED BY ANY EMPLOYEE WITH THE
SECRETARY CLAIMING UNPAID MINIMUM WAGES OR UNPAID OVERTIME COMPENSATION
UNDER SECTION 6 OR SECTION 7 OF THIS ACT, THE SECRETARY MAY BRING AN
ACTION IN ANY COURT OF COMPETENT JURISDICTION TO RECOVER THE AMOUNT OF
SUCH CLAIM:  ... THE CONSENT OF ANY EMPLOYEE TO THE BRINGING OF ANY
SUCH ACTION BY THE SECRETARY, UNLESS SUCH ACTION IS DISMISSED WITHOUT
PREJUDICE ON MOTION OF THE SECRETARY, SHALL CONSTITUTE A WAIVER BY SUCH
EMPLOYEE OF ANY RIGHT OF ACTION HE MAY HAVE UNDER SUBSECTION (B) OF
THIS SECTION FOR SUCH UNPAID MINIMUM WAGES OR UNPAID OVERTIME
COMPENSATION AND AN ADDITIONAL EQUAL AMOUNT AS LIQUIDATED DAMAGES ...
."  63 STAT. 919. 

FN3  WHEN, IN 1949, CONGRESS ADOPTED THE PROVISO TO SEC. 17 THERE
WERE ONLY TWO DECISIONS, IN ADDITION TO THE O'GRADY AND SCERBO CASES,
HOLDING THAT A DISTRICT COURT HAD JURISDICTION IN AN INJUNCTION ACTION
BROUGHT BY THE SECRETARY UNDER SEC. 17 TO MAKE AN AWARD OF REPARATIONS
FOR UNPAID WAGES, NAMELY, FLEMING V. WARSHAWSKY & CO., 123 F.2D 622
(C.A. 7TH CIR.), AND FLEMING V. ALDERMAN, 51 F. SUPP. 800 (D.C.D.
CONN.).  IN NEITHER OF THESE CASES DID THE EMPLOYER CONTEST THE
JURISDICTION OF THE DISTRICT COURT TO AWARD REPARATIONS FOR UNPAID
WAGES.  INSTEAD, EACH EMPLOYER APPEARED IN THE DISTRICT COURT AND
AGREED TO THE ENTRY OF A CONSENT DECREE AWARDING BACK PAY TO THE
EMPLOYEES.  IT WAS LARGELY BECAUSE OF THOSE AGREEMENTS THAT THOSE
COURTS HELD THAT THEY HAD JURISDICTION TO ENTER THE CONSENT DECREES. 
THUS, WHEN CONGRESS ADOPTED THE PROVISO TO SEC. 17, THE ONLY CONTESTED
DECISIONS ON THE POINT WERE THE O'GRADY AND SCERBO CASES.  HENCE, THE
REFERENCE IN THE HOUSE CONFERENCE REPORT, SUPRA, TO "SUCH DECISIONS AS
MCCOMB V. SCERBO" SEEMS NECESSARILY TO HAVE BEEN INTENDED TO INCLUDE
THE O'GRADY DECISION AS WELL AS MCCOMB V. SCERBO, FOR IT WAS REALLY THE
ONLY OTHER "SUCH DECISION" IN THE BOOKS.  THE SEPARATE CONCURRING
OPINION OF ONE OF THE JUDGES IN WALLING V. MILLER, 138 F.2D 629 (C.A.
8TH CIR.), SAYING THAT A DISTRICT COURT HAD JURISDICTION UNDER SEC. 17,
AS IT STOOD PRIOR TO THE ADOPTION OF THE 1949 PROVISO, TO MAKE AN AWARD
FOR UNPAID WAGES DID NOT EXPRESS THE VIEWS OF THE COURT. 
..END :







UNITED STATES V. PRICE 361 U.S. 304 


NO. 48.  ARGUED DECEMBER 9, 1959 - DECIDED JANUARY 18, 1960 - 263 F.2D
382, REVERSED. 


UNDER SEC. 272(A)(1) OF THE INTERNAL REVENUE CODE OF 1939, AS AMENDED,
FAILURE OF THE COMMISSIONER OF INTERNAL REVENUE TO SEND TO A TAXPAYER A
90-DAY NOTICE OF A DEFICIENCY IN HIS INCOME TAX RETURN DOES NOT BAR AN
ACTION BY THE UNITED STATES TO COLLECT SUCH DEFICIENCY AND STATUTORY
INTEREST THEREON WHEN THE TAXPAYER HAD EXECUTED AND FILED, UNDER SEC.
272(D), A WAIVER OF THE RESTRICTIONS OF SEC. 272(A) ON THE ASSESSMENT
AND COLLECTION OF DEFICIENCIES, SINCE SEC. 272(D) AUTHORIZES THE FILING
OF SUCH A WAIVER "AT ANY TIME" AND NOT ONLY AFTER THE ISSUANCE OF A 90
DAY NOTICE OF A DEFICIENCY.  PP. 304-313. 

UNITED STATES V. PRICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS ACTION AGAINST THE RESPONDENT TAXPAYER
FOR THE COLLECTION OF A DEFICIENCY IN TAXES FOR THE YEAR 1946, AND
STATUTORY INTEREST THEREON.  THE RESPONDENT DEFENDED ON THE GROUND THAT
THE ACTION COULD NOT BE MAINTAINED BECAUSE THE COMMISSIONER OF INTERNAL
REVENUE HAD NEVER ISSUED TO THE TAXPAYER A NOTICE OF DEFICIENCY
(COMMONLY KNOWN AS A "90-DAY LETTER") FOR THE AMOUNT IN QUESTION.  THIS
DEFENSE WAS BASED ON SEC. 272(A)(1) OF THE INTERNAL REVENUE CODE OF
1939, 53 STAT. 82, AS AMENDED, PROVIDING IN PERTINENT PART AS FOLLOWS: 

"IF IN THE CASE OF ANY TAXPAYER, THE COMMISSIONER DETERMINES THAT
THERE IS A DEFICIENCY IN RESPECT OF THE TAX IMPOSED BY THIS CHAPTER,
THE COMMISSIONER IS AUTHORIZED TO SEND NOTICE OF SUCH DEFICIENCY TO THE
TAXPAYER BY REGISTERED MAIL.  WITHIN NINETY DAYS AFTER SUCH NOTICE IS
MAILED ...  THE TAXPAYER MAY FILE A PETITION WITH THE TAX COURT OF THE
UNITED STATES FOR A REDETERMINATION OF THE DEFICIENCY.  NO ASSESSMENT
OF A DEFICIENCY IN RESPECT OF THE TAX IMPOSED BY THIS CHAPTER AND NO
DISTRAINT OR PROCEEDING IN COURT FOR ITS COLLECTION SHALL BE MADE,
BEGUN, OR PROSECUTED UNTIL SUCH NOTICE HAS BEEN MAILED TO THE TAXPAYER,
NOR UNTIL THE EXPIRATION OF SUCH NINETY-DAY PERIOD, NOR, IF A PETITION
HAS BEEN FILED WITH THE TAX COURT, UNTIL THE DECISION OF THE TAX COURT
HAS BECOME FINAL ...  ." 

THE GOVERNMENT RELIED ON THE ADMITTED FACT THAT RESPONDENT HAD
EXECUTED A TREASURY DEPARTMENT FORM WAIVING THE RESTRICTIONS ON
ASSESSMENT AND COLLECTION OF THE DEFICIENCY SUED FOR, (FN1) AND ON SEC.
272(D) OF THE 1939 CODE, 53 STAT. 83, SAID TO AUTHORIZE SUCH A WAIVER,
WHICH PROVIDES: 

"THE TAXPAYER SHALL AT ANY TIME HAVE THE RIGHT, BY A SIGNED NOTICE IN
WRITING FILED WITH THE COMMISSIONER, TO WAIVE THE RESTRICTIONS PROVIDED
IN SUBSECTION (A) OF THIS SECTION ON THE ASSESSMENT AND COLLECTION OF
THE WHOLE OR ANY PART OF THE DEFICIENCY." 

THE DISTRICT COURT HELD THAT THE WAIVER WAS NOT EFFECTIVE BECAUSE A
90-DAY LETTER HAD NOT BEEN ISSUED, AND THAT SEC. 272(A) THEREFORE
BARRED THE ACTION.  THE COURT OF APPEALS AFFIRMED, 263 F.2D 382, AND IN
VIEW OF CONTRARY DECISIONS IN THE FIRST AND SIXTH CIRCUITS, (FN2) WE
GRANTED CERTIORARI.   359 U.S. 988.  FOR REASONS HEREAFTER STATED WE
THINK THE COURT BELOW WAS IN ERROR. 

WE START WITH THE LANGUAGE OF SEC. 272(D).  BY ITS TERMS, THE RIGHT
OF WAIVER IS TO BE AVAILABLE "AT ANY TIME," AND IS APPLICABLE TO "THE
RESTRICTIONS" CONTAINED IN SEC. 272(A).  THOSE RESTRICTIONS INCLUDE THE
PROHIBITIONS ON ASSESSMENT AND COLLECTION OF A DEFICIENCY PRIOR TO THE
MAILING OF A 90-DAY LETTER, NO LESS THAN THE SAME PROHIBITIONS RELATING
TO THE PERIOD FOLLOWING THE ISSUANCE OF SUCH A LETTER DURING WHICH A
PETITION FOR A REDETERMINATION OF A DEFICIENCY MAY BE FILED OR IS
AWAITING DECISION OF THE TAX COURT. 

RESPONDENT SEEKS TO SUPPORT THE VIEW THAT THESE PROVISIONS SHOULD BE
READ AS APPLYING ONLY TO THE PERIOD FOLLOWING THE ISSUANCE OF THE 90
DAY LETTER BY NOTING THAT SEC. 272(D) IS LIMITED TO WAIVERS OF
RESTRICTIONS ON THE ASSESSMENT AND COLLECTION OF "THE DEFICIENCY," AND
ASSERTING THAT "THE DEFICIENCY" DOES NOT COME INTO EXISTENCE, AS IT
WERE, UNTIL A 90-DAY LETTER HAS BEEN MAILED.  THIS READING OF THE
STATUTE IS SAID TO FOLLOW FROM THE FIRST SENTENCE OF SEC. 272(A)(1): 

"IF IN THE CASE OF ANY TAXPAYER, THE COMMISSIONER DETERMINES THAT
THERE IS A DEFICIENCY IN RESPECT OF THE TAX IMPOSED BY THIS CHAPTER,
THE COMMISSIONER IS AUTHORIZED TO SEND NOTICE OF SUCH DEFICIENCY TO THE
TAXPAYER BY REGISTERED MAIL." 

A DEFICIENCY, IT IS ARGUED, IS NOT "DETERMINED" UNTIL THE STATUTORY
NOTICE HAS BEEN ISSUED.  WE CANNOT ACCEPT ANY SUCH FINE-SPUN
REFINEMENTS.  THE PLAIN SENSE OF THIS PROVISION CONTEMPLATES, FIRST, A
DETERMINATION, AND THEN THE SENDING OF A NOTICE.  NO PERSUASIVE REASON
APPEARS FOR ARTIFICIALLY ENGRAFTING UPON THE STATUTORY TERMS
EXCESSIVELY FORMAL CONDITIONS.  (FN3)  NOR DO WE FIND ANY FORCE IN THE
ARGUMENT THAT BECAUSE A DETERMINATION AND ASSESSMENT OF ADDITIONAL
DEFICIENCIES MAY FOLLOW UPON ONE ALREADY MADE, "THE DEFICIENCY"
REFERRED TO IN SEC. 272(D) MUST BE TAKEN AS LIMITED TO ONE PREVIOUSLY
DETERMINED. 

WAIVER OF THE RESTRICTIONS ON ASSESSMENT AND COLLECTION OF A TAX IS
EFFECTIVE ONLY IF FILED AFTER THE ISSUANCE OF A 90-DAY LETTER.  WE
THINK A SIMILAR CONCLUSION FOLLOWS FROM AN EXAMINATION OF THE
LEGISLATIVE HISTORY OF THE RELEVANT STATUTORY ENACTMENTS. 

IN CREATING THE TAX COURT (ORIGINALLY KNOWN AS THE BOARD OF TAX
APPEALS), CONGRESS PROVIDED A FORUM IN WHICH TAXPAYERS COULD OBTAIN AN
"INDEPENDENT REVIEW OF THE COMMISSIONER OF INTERNAL REVENUE'S
DETERMINATION OF ADDITIONAL INCOME  ...  TAXES BY THE BOARD IN ADVANCE
OF THEIR PAYING THE TAX FOUND BY THE COMMISSIONER TO BE DUE."  OLD
COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716, 721.  SECTION 274(A) OF
THE REVENUE ACT OF 1924, 43 STAT. 297, AND THE REVENUE ACT OF 1926,
SEC. 274(A), 44 STAT. 55 (THE PREDECESSORS OF SEC. 272(A) OF THE 1939
CODE), DISABLED THE COMMISSIONER FROM ASSESSING OR COLLECTING ANY
DEFICIENCY UNTIL A NOTICE OF SUCH DEFICIENCY HAD BEEN ISSUED, AND FOR
60 (LATER AMENDED TO 90) DAYS THEREAFTER, OR, IN THE EVENT THAT A
TAXPAYER TOOK AN APPEAL TO THE BOARD OF TAX APPEALS WITHIN SUCH PERIOD,
UNTIL THAT BODY HAD RENDERED A FINAL DECISION.  HOWEVER, EVEN THOUGH A
TAXPAYER DID NOT WISH TO CONTEST THE COMMISSIONER'S DETERMINATION OF A
DEFICIENCY BEFORE THE BOARD, INTEREST ON SUCH DEFICIENCY CONTINUED TO
ACCRUE FROM THE ORIGINAL DUE DATE OF THE TAX UNTIL THE TIME FOR SEEKING
BOARD REVIEW HAD RUN, SUCH INTEREST BEING THEREAFTER COLLECTIBLE UPON
ASSESSMENT OF THE TAX.  REVENUE ACT OF 1924, SEC. 274(F), 43 STAT.
297. 

TO MEET THIS SITUATION, THE 1926 REVENUE ACT ADDED, IN SEC. 274(D),
44 STAT. 56, THE WAIVER PROVISIONS RE-ENACTED AS SEC. 272(D) OF THE
1939 CODE.  AT THE SAME TIME, CONGRESS PROVIDED, IN SEC. 274(J) (THE
PREDECESSOR OF SEC. 292 OF THE 1939 CODE), THAT THE FILING OF A WAIVER
AS PROVIDED FOR BY SUBSECTION (D) SHOULD STOP THE RUNNING OF INTEREST
ON THE DEFICIENCY UPON THE EXPIRATION OF 30 DAYS FROM SUCH FILING OR
UPON THE ASSESSMENT OF SUCH DEFICIENCY, WHICHEVER THE EARLIER.  (FN4)
THE RELATION BETWEEN THE TWO SECTIONS OF THE 1926 ACT, AND BETWEEN THE
COMPARABLE SECTIONS OF THE 1939 CODE AS WELL, IS CLEAR:  (1) A WAIVER
IS PROVIDED FOR IN SEC. 274(D) 1939 CODE, SEC. 272(D) "IN ORDER TO
PERMIT THE TAXPAYER TO PAY THE TAX AND STOP THE RUNNING OF INTEREST,"
S. REP. NO. 52, 69TH CONG., 1ST SESS., P. 27; (2) THE COMMISSIONER IS
THEREUPON PERMITTED TO ASSESS AND COLLECT THE TAX FREE OF THE
RESTRICTIONS CONTAINED IN SEC. 274(A) 1939 CODE, SEC. 272(A); AND (3)
THE TAXPAYER IS PROTECTED AGAINST THE CONTINUED RUNNING OF INTEREST,
DUE TO DELAY IN ASSESSMENT, BY THE 30-DAY CUTOFF PROVIDED FOR BY SEC.
274(J) 1939 CODE, SEC. 292. 

WE CAN FIND IN THIS HISTORY AND THE PURPOSE IT DISCLOSES NO WARRANT
FOR INFERRING THAT IT WAS INTENDED THAT A TAXPAYER SHOULD BE WITHOUT
POWER TO STOP THE RUNNING OF INTEREST AGAINST HIM UNTIL A FORMAL NOTICE
OF DEFICIENCY HAS BEEN ISSUED.  (FN5)  YET, AS WILL APPEAR, SUCH IS THE
NECESSARY EFFECT OF RESPONDENT'S POSITION.  MAJOR RELIANCE IS PLACED ON
A PASSAGE IN THE SENATE COMMITTEE REPORT ON THE 1926 ACT: 

"IN ORDER TO PERMIT THE TAXPAYER TO PAY THE TAX AND STOP THE RUNNING
OF INTEREST, THE COMMITTEE RECOMMENDS IN SECTION 274(D) OF THE BILL
THAT THE TAXPAYER AT ANY TIME BE PERMITTED TO WAIVE IN WRITING THE
RESTRICTIONS ON THE COMMISSIONER AGAINST ASSESSING AND COLLECTING THE
TAX, BUT WITHOUT TAKING AWAY THE RIGHT OF THE TAXPAYER TO TAKE THE CASE
TO THE BOARD."  S. REP. NO. 52, 69TH CONG., 1ST SESS., P. 27. 

RESPONDENT CLAIMS THAT THE LAST CLAUSE OF THIS PASSAGE SHOULD BE
TAKEN AS INDICATING THAT SEC. 274(D), REENACTED AS SEC. 272(D) OF THE
1939 CODE, DOES NOT SANCTION WAIVERS PRIOR TO THE ISSUANCE OF A 90-DAY
LETTER, BECAUSE IT IS THAT EVENT WHICH BROUGHT THE BOARD'S, AND NOW
BRINGS THE TAX COURT'S, JURISDICTION TO REVIEW DEFICIENCIES INTO PLAY. 
TO READ THE PASSAGE - THE OBSCURITY OF WHICH HAS PREVIOUSLY BEEN
JUDICIALLY NOTED (FN6) - SO AS TO APPLY THE CLAUSE IN QUESTION TO
WAIVERS EXECUTED BEFORE THE ISSUANCE OF A NOTICE OF DEFICIENCY WOULD
REQUIRE A HOLDING THAT, DESPITE A WAIVER, THE ISSUANCE BY THE
COMMISSIONER OF A NOTICE OF DEFICIENCY REMAINS A PREREQUISITE TO
ASSESSMENT AND COLLECTION.  BUT SINCE, AS THE TAXPAYER ACKNOWLEDGES, IT
IS INCONCEIVABLE THAT A WAIVER WOULD BE EFFECTIVE TO STOP THE RUNNING
OF INTEREST, AND AT THE SAME TIME BE INEFFECTIVE TO PERMIT THE
GOVERNMENT IMMEDIATELY TO ASSESS AND COLLECT THE DEFICIENCY TO WHICH
THE WAIVER REFERRED, THE NECESSARY RESULT OF RESPONDENT'S READING OF
THE SENATE COMMITTEE REPORT WOULD BE TO INFER THAT A TAXPAYER WAS TO BE
WITHOUT POWER TO STOP THE RUNNING OF INTEREST UNTIL A FORMAL NOTICE OF
DEFICIENCY HAD ISSUED, OFTEN INVOLVING NOT INCONSIDERABLE PERIODS OF
DELAY.  SUCH AN INFERENCE DOES NOT JIBE EITHER WITH THE "RIGHT" THE
STATUTE GIVES A TAXPAYER TO FILE A WAIVER "AT ANY TIME," OR WITH THE
PURPOSES OF THE WAIVER PROVISIONS.  MOREOVER, HAD CONGRESS DESIRED TO
REQUIRE THE ISSUANCE OF A NOTICE OF DEFICIENCY PRIOR TO ASSESSMENT AND
COLLECTION IN ALL CIRCUMSTANCES, IT MORE LIKELY WOULD HAVE ACCOMPLISHED
THAT RESULT DIRECTLY, AS IT DID IN THE INSTANCE OF JEOPARDY
ASSESSMENTS.  SEE REVENUE ACT OF 1926, SEC. 279(B), 44 STAT. 59 (NOW
SEC. 6861(B) OF THE 1954 CODE). 

NOR DO WE THINK THAT SUBSEQUENT LEGISLATIVE DEVELOPMENTS CHANGE THE
VIEW WE HAVE OF THE STATUTE.  SEVERAL YEARS AFTER THE ENACTMENT OF THE
1926 STATUTE, THE COURT OF APPEALS FOR THE NINTH CIRCUIT EXPRESSED
VIEWS SIMILAR TO THOSE WHICH FORMED THE BASIS FOR THE DECISION BELOW. 
MUTUAL LUMBER CO. V. POE, 66 F.2D 904; MCCARTHY CO. V. COMMISSIONER, 80
F.2D 618.  IN 1938, CONGRESS CONSIDERED VARIOUS SUGGESTED REVISIONS IN
THE REVENUE STATUTES, AND A HOUSE OF REPRESENTATIVES SUBCOMMITTEE
RECOMMENDED AN EXPRESS REPUDIATION OF THOSE DECISIONS.  THIS
RECOMMENDATION WAS NOT ADOPTED, AND FROM THE FAILURE TO ACT, RESPONDENT
WOULD HAVE US INFER AN ACCEPTANCE BY CONGRESS OF THE NINTH CIRCUIT'S
POSITION.  SUCH NONACTION BY CONGRESS AFFORDS THE MOST DUBIOUS
FOUNDATION FOR DRAWING POSITIVE INFERENCES.  MOREOVER, THE
SUBCOMMITTEE'S DISCUSSION, WHICH IS SET OUT IN FULL IN THE MARGIN,
(FN7) DOES NOT SUPPORT THE MEANING SOUGHT TO BE DERIVED FROM IT.  WHILE
CERTAIN ISOLATED PASSAGES CAN BE SO READ, TAKEN AS A WHOLE WHAT THE
SUBCOMMITTEE SAID APPEARS TO US TO ESPOUSE THE POSITION THAT THE
COMMISSIONER'S LONG-STANDING INTERPRETATION OF THE STATUTE WAS CORRECT,
AND THAT CLARIFICATION WAS CALLED FOR ONLY BECAUSE OF THE DOUBTS CAUSED
BY THE NINTH CIRCUIT'S DECISIONS, WHICH THIS COURT HAD DECLINED TO
REVIEW.  290 U.S. 706, 298 U.S. 655.  WHETHER CONGRESS THOUGHT THE
PROPOSAL UNWISE, AS RESPONDENT ARGUES, OR UNNECESSARY, WE CANNOT TELL;
ACCORDINGLY, NO INFERENCE CAN PROPERLY BE DRAWN FROM THE FAILURE OF THE
CONGRESS TO ACT. 

FINALLY, WE ARE SIMILARLY UNABLE TO FIND SUPPORT FOR RESPONDENT'S
POSITION IN THE HISTORY OF THE 1954 CODE.  WHILE THE RECODIFICATION
SETTLED (FOR TAXABLE YEARS COVERED BY THAT ACT) THE QUESTION BEFORE US
BY EXPRESSLY AUTHORIZING A WAIVER PRIOR TO THE ISSUANCE OF A 90-DAY
LETTER, (FN8) THE REPORTS CONTAIN NO CLEAR STATEMENT AS TO CONGRESS'
VIEW OF THEN EXISTING LAW.  WHAT LIGHT THERE IS, HOWEVER, TENDS TO
FAVOR THE GOVERNMENT'S CONTENTIONS.  THE NEW STATUTE AMENDED ANOTHER
SUBSECTION OF THE SECTION CONTAINING THE WAIVER PROVISION, AND THE
REPORTS REFER TO THAT AMENDMENT AS THE "ONLY MATERIAL CHANGE FROM
EXISTING LAW."  (FN9)  RESPONDENT ARGUES THAT THE CHANGE REGARDING
WAIVER WAS PROBABLY THOUGHT NOT "MATERIAL."  INFERENCES FROM
LEGISLATIVE HISTORY CANNOT REST ON SO SLENDER A REED.  MOREOVER, THE
VIEWS OF A SUBSEQUENT CONGRESS FORM A HAZARDOUS BASIS FOR INFERRING THE
INTENT OF AN EARLIER ONE.  SEE UNITED STATES V. UNITED MINE WORKERS,
330 U.S. 258, 282. 

THE LEGISLATIVE HISTORY, THEN, DOES NOT CALL FOR A RESULT CONTRARY TO
THAT INDICATED BY THE LANGUAGE OF THE ACT.  WE HOLD THAT A WAIVER GIVEN
PURSUANT TO SEC. 272(D) OF THE INTERNAL REVENUE CODE OF 1939 OR ITS
PREDECESSOR SECTIONS, ALTHOUGH EXECUTED PRIOR TO THE ISSUANCE OF A
NOTICE OF DEFICIENCY, IS A FULLY EFFECTIVE INSTRUMENT.  REVERSED AND
REMANDED. 

FN1  THE WAIVER WAS EXECUTED ON UNITED STATES TREASURY FORM 870,
ENTITLED "WAIVER OF RESTRICTIONS ON ASSESSMENT AND COLLECTION OF
DEFICIENCY IN TAX," AND READ, IN RELEVANT PART, AS FOLLOWS: 

"PURSUANT TO THE PROVISIONS OF SECTION 272(D) OF THE INTERNAL REVENUE
CODE, AND/OR THE CORRESPONDING PROVISIONS OF PRIOR INTERNAL REVENUE
LAWS, THE RESTRICTIONS PROVIDED IN SECTION 272(A) OF THE INTERNAL
REVENUE CODE, AND/OR THE CORRESPONDING PROVISIONS OF PRIOR INTERNAL
REVENUE LAWS, ARE HEREBY WAIVED AND CONSENT IS GIVEN TO THE ASSESSMENT
AND COLLECTION OF THE FOLLOWING DEFICIENCY OR DEFICIENCIES IN TAX:" 
FN2  ASSOCIATED MUTUALS V. DELANEY, 176 F.2D 179, 182-184; MOORE V.
CLEVELAND R. CO., 108 F.2D 656, 658-660.  SEE ALSO ROOS V. UNITED
STATES, 90 CT. CL. 482, 31 F. SUPP. 144. 

FN3  SEE MOORE V. CLEVELAND R. CO., SUPRA, AT 659, ANALYZING SEC.
271(A) OF THE CODE, 53 STAT. 82, DEFINING A "DEFICIENCY." 

FN4  SECTION 292 OF THE 1939 CODE, 53 STAT. 88, WHICH IS IN ALL
RESPECTS MATERIAL HERE IDENTICAL WITH ITS 1926 COUNTERPART, PROVIDED,
IN PERTINENT PART: 

"INTEREST UPON THE AMOUNT DETERMINED AS A DEFICIENCY SHALL BE
ASSESSED AT THE SAME TIME AS THE DEFICIENCY, SHALL BE PAID UPON NOTICE
AND DEMAND FROM THE COLLECTOR, AND SHALL BE COLLECTED AS A PART OF THE
TAX, AT THE RATE OF 6 PER CENTUM PER ANNUM FROM THE DATE PRESCRIBED FOR
THE PAYMENT OF THE TAX  ...  TO THE DATE THE DEFICIENCY IS ASSESSED,
OR, IN THE CASE OF A WAIVER UNDER SECTION 272(D), TO THE THIRTIETH DAY
AFTER THE FILING OF SUCH WAIVER OR TO THE DATE THE DEFICIENCY IS
ASSESSED WHICHEVER IS THE EARLIER." 

FN5  SEE MOORE V. CLEVELAND R. CO., SUPRA, AT 659-660. 

FN6  ASSOCIATED MUTUALS V. DELANEY, SUPRA, AT 183.  EVEN RESPONDENT'S
INTERPRETATION OF THE PASSAGE WOULD NOT, HOWEVER, GIVE LITERAL EFFECT
TO ITS LANGUAGE, FOR A TAXPAYER WOULD NOT "AT ANY TIME BE PERMITTED TO
WAIVE" THE RESTRICTIONS ON ASSESSMENT AND COLLECTION OF A DEFICIENCY,
BUT COULD DO SO ONLY AFTER THE ISSUANCE OF A NOTICE OF DEFICIENCY. 

FN7  "IN ORDER TO ENABLE THE GOVERNMENT TO COLLECT ADMITTED
DEFICIENCIES IN AN ORDERLY AND EXPEDITIOUS MANNER WITHOUT THE DELAY
NECESSARILY INVOLVED IN THE ISSUANCE OF A FORMAL NOTICE OF DEFICIENCY,
AND ALSO TO ENABLE TAXPAYERS TO CURTAIL THE INTEREST PERIOD ON SUCH
DEFICIENCIES BY PERMITTING THE GOVERNMENT TO MAKE AN EARLIER ASSESSMENT
OF THE TAX THAN OTHERWISE WOULD BE POSSIBLE, THE BUREAU OF INTERNAL
REVENUE HAS ENTERED INTO COOPERATIVE AGREEMENTS WITH TAXPAYERS. 

"IT HAS BEEN A PRACTICE OF LONG STANDING IN THE BUREAU TO ENDEAVOR TO
SECURE THE SIGNED AGREEMENT OF A TAXPAYER TO ADDITIONAL TAXES PROPOSED
BY AN INTERNAL-REVENUE AGENT AS THE RESULT OF A FIELD INVESTIGATION,
AND ALSO TO TAXES PROPOSED IN LETTERS FROM THE COMMISSIONER MAILED AS
PRELIMINARIES TO THE ISSUANCE OF THE FORMAL NOTICE OF DEFICIENCY
AUTHORIZED IN SECTION 272(A), REVENUE ACT OF 1936, AND CORRESPONDING
PROVISIONS OF PRIOR ACTS.  IT HAS FURTHER BEEN THE PRACTICE TO REGARD
SUCH A SIGNED AGREEMENT AS A VALID WAIVER UNDER SECTION 272(D), REVENUE
ACT OF 1936, AND CORRESPONDING PROVISIONS OF PRIOR ACTS, FOR THE
PURPOSE OF COMPUTING INTEREST ON THE DEFICIENCIES AGREED TO IN
ACCORDANCE WITH SECTION 292, REVENUE ACT OF 1936, AND CORRESPONDING
PROVISIONS OF PRIOR ACTS.  THAT IS, INTEREST ON A DEFICIENCY SO AGREED
TO WOULD BE COMPUTED TO THE DATE OF ASSESSMENT OR TO THE THIRTIETH DAY
AFTER THE FILING OF SUCH AGREEMENT, WHICHEVER WAS THE EARLIER.  IN THE
GREAT MAJORITY OF SUCH CASES THE ASSESSMENT IS MADE WITHIN 30 DAYS
AFTER THE AGREEMENT IS PROCURED, THEREBY MAKING COLLECTION OF SUCH
DEFICIENCIES MORE NEARLY CONCURRENT WITH THEIR DISCOVERY THAN WOULD BE
THE CASE IF FORMAL NOTICE WERE REQUIRED TO BE GIVEN. 

"AS A RESULT OF TWO DECISIONS OF THE CIRCUIT COURT OF APPEALS FOR THE
NINTH CIRCUIT (MUTUAL LUMBER CO. V. POE, 66 F.2D 906, CERTIORARI DENIED
JAN. 6, 1936; MCCARTHY CO. V. COMMISSIONER, 80 F.2D 618, CERTIORARI
DENIED APR. 6, 1936), A VALID WAIVER CANNOT BE GIVEN BY A TAXPAYER
PRIOR TO THE FORMAL DETERMINATION BY THE COMMISSIONER, AS EVIDENCED BY
A 60- OR 90-DAY LETTER, THAT THERE IS A DEFICIENCY IN TAX. 

"YOUR SUBCOMMITTEE WHILE FEELING THAT THE LANGUAGE OF THE STATUTE IS
ALREADY SUFFICIENTLY CLEAR, FEELS COMPELLED, IN VIEW OF THE ACTION OF
THE SUPREME COURT IN DENYING CERTIORARI, TO RECOMMEND (RECOMMENDATION
NO. 47) THAT AN AMENDMENT BE INSERTED TO INSURE THE VALIDITY OF WAIVERS
GIVEN BEFORE THE MAILING OF THE DEFICIENCY LETTER, SUCH AMENDMENT TO
PROVIDE THAT THE TAXPAYER SHALL HAVE THE RIGHT AT ANY TIME AFTER A
DEFICIENCY IS PROPOSED IN ANY MANNER THAT THE COMMISSIONER MAY DIRECT,
WHETHER BEFORE OR AFTER THE SENDING OF THE NOTICE OF DEFICIENCY AS
PROVIDED IN SUBSECTION (A) OF THAT SECTION, TO WAIVE BY A SIGNED NOTICE
IN WRITING, ANY AND ALL RESTRICTIONS OR CONDITIONS, HOWEVER IMPOSED, ON
THE IMMEDIATE ASSESSMENT AND COLLECTION OF THE WHOLE OR ANY PART OF THE
DEFICIENCY SO PROPOSED. 

"IT IS BELIEVED THAT THE PROPOSED AMENDMENT WILL FURNISH A CLEAR AND
UNQUESTIONABLE STATUTORY BASIS FOR A LONG-ESTABLISHED AND
SATISFACTORILY FUNCTIONING DEPARTMENTAL PROCEDURE.  IT WILL BE
CONDUCIVE TO THE EARLY SETTLEMENT OF CONTROVERTED ISSUES WITHOUT
NECESSITY FOR LITIGATION, WHILE AT THE SAME TIME RETAINING FOR THE
TAXPAYER HIS PRESENT PRIVILEGE OF PAYING DEFICIENCIES UNDER APPEAL AND
THEREBY TERMINATING THE RUNNING OF DEFICIENCY INTEREST."  REPORT OF A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON WAYS AND MEANS, ON PROPOSED
REVISION OF THE REVENUE LAWS, 1938, 75TH CONG., 3D SESS., PP. 53-54. 

FN8  SECTION 6213(D) OF THE 1954 CODE READS AS FOLLOWS: 

"THE TAXPAYER SHALL AT ANY TIME (WHETHER OR NOT A NOTICE OF
DEFICIENCY HAS BEEN ISSUED) HAVE THE RIGHT, BY A SIGNED NOTICE IN
WRITING FILED WITH THE SECRETARY OR HIS DELEGATE, TO WAIVE THE
RESTRICTIONS PROVIDED IN SUBSECTION (A) ON THE ASSESSMENT AND
COLLECTION OF THE WHOLE OR ANY PART OF THE DEFICIENCY." 

FN9  H.R. REP. NO. 1337, 83D CONG., 2D SESS., P. A405: 

"SECTION 6213.  RESTRICTIONS APPLICABLE TO DEFICIENCIES; PETITION TO
TAX COURT. 

"THE ONLY MATERIAL CHANGE FROM EXISTING LAW IS MADE IN SUBSECTION
(B)(3) OF THIS SECTION, WHICH CONTAINS A NEW PROVISION PROVIDING THAT
ANY AMOUNT PAID AS A TAX, OR IN RESPECT OF A TAX, MAY BE ASSESSED UPON
THE RECEIPT OF SUCH PAYMENT NOTWITHSTANDING THE RESTRICTIONS ON
ASSESSMENT CONTAINED IN SUBSECTION (A)."  SEE ALSO, TO THE SAME EFFECT,
S. REP. NO. 1622, 83D CONG., 2D SESS., P. 573. 

MR. JUSTICE DOUGLAS, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

MUTUAL LUMBER CO. V. POE, 66 F.2D 904, DECIDED IN 1933, STATES IN MY
VIEW THE CORRECT RULE - ONE THAT WAS EARLY CRITICIZED AND CHALLENGED,
YET ONE THAT CONGRESS DID NOT UNDERTAKE TO CHANGE.  I WOULD THEREFORE
AFFIRM THIS JUDGMENT. 
..END :











HESS V. UNITED STATES 361 U.S. 314 


NO. 5.  ARGUED OCTOBER 15, 1959 - DECIDED JANUARY 18, 1960 - 259 F.2D
285, JUDGMENT VACATED AND CAUSE REMANDED. 


IN AN ACTION AGAINST THE UNITED STATES UNDER THE FEDERAL TORT CLAIMS
ACT TO RECOVER FOR THE WRONGFUL DEATH OF AN EMPLOYEE OF AN INDEPENDENT
CONTRACTOR ENGAGED TO PERFORM REPAIRS TO THE BONNEVILLE DAM, WHICH IS
OWNED AND OPERATED BY THE UNITED STATES, IT APPEARED THAT HIS DEATH
RESULTED FROM DROWNING IN NAVIGABLE WATERS OF THE COLUMBIA RIVER WITHIN
THE STATE OF OREGON.  HELD: THE RIGHT OF ACTION FOR WRONGFUL DEATH
CREATED BY THE OREGON EMPLOYERS' LIABILITY LAW MAY BE INVOKED TO
RECOVER FOR A MARITIME DEATH IN THAT STATE WITHOUT CONSTITUTIONAL
INHIBITION.  THE TUNGUS V. SKOVGAARD, 358 U.S. 588.  PP. 314-321. 

HESS, ADMINISTRATOR, V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT AGAINST THE UNITED STATES UNDER THE FEDERAL
TORT CLAIMS ACT (FN1) TO RECOVER FOR THE DEATH OF PETITIONER'S
DECEDENT, GEORGE W. GRAHAM.  GRAHAM WAS DROWNED IN THE COLUMBIA RIVER
WHILE IN THE COURSE OF HIS EMPLOYMENT AS A CARPENTER FOREMAN FOR LARSON
CONSTRUCTION COMPANY, AN INDEPENDENT CONTRACTOR WHICH HAD UNDERTAKEN TO
PERFORM REPAIRS AT BONNEVILLE DAM.  THAT STRUCTURE IS OWNED AND
OPERATED BY THE UNITED STATES. 

AS A PRELIMINARY TO THE JOB IT HAD CONTRACTED TO ACCOMPLISH, LARSON
DECIDED TO SEND A WORKING PARTY BY BOAT TO THE FOOT OF THE SPILLWAY DAM
TO TAKE SOUNDINGS.  LARSON TOLD THE GOVERNMENT INSPECTOR OF THE PLAN
AND ASKED THAT THE OPERATING PERSONNEL OF THE DAM BE REQUESTED TO CLOSE
TWO ADDITIONAL SPILLWAY GATES NEAR THE POINT WHERE THE SOUNDINGS WERE
TO BE TAKEN.  THIS REQUEST WAS COMPLIED WITH.  LARSON THEN DISPATCHED A
GROUP OF EMPLOYEES TO THE AREA IN A TUG-AND-BARGE UNIT.  GRAHAM WAS A
MEMBER OF THIS WORKING PARTY.  APPROACHING THE DAM, THE TUG AND BARGE
VEERED AND STRUCK A PIER, STAVING A HOLE IN THE BARGE.  THE UNIT THEN
WAS CARRIED NORTHWARDLY IN THE RIVER TOWARDS THAT PART OF THE DAM WHERE
THE SPILLWAY GATES WERE OPEN.  THERE IT CAPSIZED IN THE TURBULENT
WATER.  GRAHAM AND ALL BUT ONE OF HIS FELLOW EMPLOYEES WERE KILLED. 
THEIR DEATHS OCCURRED ON NAVIGABLE WATERS WITHIN THE TERRITORIAL LIMITS
OF THE STATE OF OREGON. 

THE THEORY OF THE PETITIONER'S COMPLAINT WAS THAT GRAHAM'S DEATH HAD
BEEN PROXIMATELY CAUSED BY THE FAILURE OF OPERATING PERSONNEL OF THE
DAM TO CLOSE A SUFFICIENT NUMBER OF SPILLWAY GATES NEAR THE AREA WHERE
THE SOUNDINGS WERE TO BE TAKEN.  LIABILITY WAS ASSERTED UNDER THE
GENERAL WRONGFUL DEATH STATUTE OF OREGON, (FN2) AS WELL AS UNDER
ANOTHER STATUTE OF THAT STATE, THE EMPLOYERS' LIABILITY LAW, (FN3)
WHICH ALSO CREATES A RIGHT TO RECOVER FOR DEATH UNDER CERTAIN
CIRCUMSTANCES. 

THE WRONGFUL DEATH STATUTE PERMITS RECOVERY FOR DEATH "CAUSED BY THE
WRONGFUL ACT OR OMISSION OF ANOTHER," LIMITS LIABILITY TO $20,000, AND
MAKES THE DECEDENT'S CONTRIBUTORY NEGLIGENCE AN ABSOLUTE BAR TO
RECOVERY.  (FN4)  IN THE LIMITED AREA WHERE THE EMPLOYERS' LIABILITY
LAW APPLIES, THE ROAD TO RECOVERY IN A DEATH ACTION IS CONSIDERABLY
EASIER.  UNDER THAT STATUTE A DEFENDANT IS LIABLE FOR FAILURE TO "USE
EVERY DEVICE, CARE AND PRECAUTION WHICH IS PRACTICABLE TO USE FOR THE
PROTECTION AND SAFETY OF LIFE AND LIMB  ...  ."  (FN5)  THERE IS NO
MONETARY LIMITATION OF LIABILITY, AND THE DECEDENT'S CONTRIBUTORY
NEGLIGENCE GOES ONLY TO MITIGATE DAMAGES.  (FN6) 

AFTER TRIAL WITHOUT A JURY, THE DISTRICT COURT ENTERED JUDGMENT FOR
THE UNITED STATES.  SINCE GRAHAM'S DEATH HAD OCCURRED ON NAVIGABLE
WATERS, THE COURT RULED THAT THE CASE WAS ONE FOR DECISION UNDER
MARITIME LAW, WHICH IN THIS CASE WOULD APPLY THE GENERAL WRONGFUL DEATH
ACT OF OREGON.  UPON THE BASIS OF DETAILED FINDINGS OF FACT THE COURT
CONCLUDED THAT THERE WAS NO LIABILITY UNDER THAT STATUTE BECAUSE
GRAHAM'S DEATH WAS "NOT CAUSED BY THE NEGLIGENCE OF THE UNITED STATES
OR ITS EMPLOYEES."  AS TO THE EMPLOYERS' LIABILITY LAW, IT WAS THE
COURT'S VIEW THAT "THIS ACT IS NOT APPLICABLE FOR THE REASON THAT THE
GOVERNMENT WAS NOT RESPONSIBLE FOR THE WORK THERE BEING PERFORMED, AND
FOR THE FURTHER REASON THAT THE HIGH STANDARD OF CARE REQUIRED UNDER
THE ACT, IF APPLIED TO THESE CASES, WOULD BE UNCONSTITUTIONAL."  1958
AM. MAR. CAS. 660. 

THE COURT OF APPEALS AFFIRMED, HOLDING THAT THE TRIAL COURT HAD NOT
ERRED IN FINDING THAT NEGLIGENCE HAD NOT BEEN PROVED, AND AGREEING THAT
THE EMPLOYERS' LIABILITY LAW "COULD NOT BE CONSTITUTIONALLY APPLIED TO
THIS CASE."  THE APPELLATE COURT EXPRESSLY REFRAINED FROM DECIDING
"WHETHER THE TRIAL COURT WAS ALSO CORRECT IN RULING THAT, IF THAT ACT
WERE APPLIED, THE UNITED STATES WOULD NOT BE LIABLE THEREUNDER BECAUSE
IT WAS NOT RESPONSIBLE FOR THE WORK BEING PERFORMED BY THE DECEDENT." 
259 F.2D 285, 292.  CERTIORARI WAS GRANTED TO CONSIDER A SEEMINGLY
IMPORTANT QUESTION OF FEDERAL LAW.  359 U.S. 923. 

AS THIS CASE REACHES US, THE PETITIONER NO LONGER CHALLENGES THE
FINDING THAT THE UNITED STATES WAS NOT GUILTY OF SUCH NEGLIGENCE AS
WOULD MAKE IT LIABLE UNDER THE WRONGFUL DEATH STATUTE OF OREGON.  HIS
SOLE CLAIM HERE IS THAT HE WAS ERRONEOUSLY DEPRIVED OF THE OPPORTUNITY
TO INVOKE THE EMPLOYERS' LIABILITY LAW. 

THE FEDERAL TORT CLAIMS ACT GRANTS THE DISTRICT COURTS JURISDICTION
OF CIVIL ACTIONS AGAINST THE UNITED STATES "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."  28 U.S.C. SEC. 1346(B). 

GRAHAM'S DEATH AND THE WRONGFUL ACT OR OMISSION WHICH ALLEGEDLY
CAUSED IT OCCURRED WITHIN THE STATE OF OREGON, AND LIABILITY MUST
THEREFORE BE DETERMINED IN ACCORDANCE WITH THE LAW OF THAT PLACE. 
SINCE DEATH OCCURRED ON NAVIGABLE WATERS, THE CONTROVERSY IS, AS THE
TRIAL COURT CORRECTLY HELD, WITHIN THE REACH OF ADMIRALTY JURISDICTION,
THE PLYMOUTH, 3 WALL.  20; KERMAREC V. COMPAGNIE GENERALE, 358 U.S.
625.  OREGON WOULD BE REQUIRED, THEREFORE, TO LOOK TO MARITIME LAW IN
DECIDING IT.  CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372; CARLISLE
PACKING CO. V. SANDANGER, 259 U.S. 255.  (FN7) 

ALTHOUGH ADMIRALTY LAW ITSELF CONFERS NO RIGHT OF ACTION FOR WRONGFUL
DEATH, THE HARRISBURG, 119 U.S. 199, YET "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.  SEE THE HAMILTON, 207 U.S. 398; LA
BOURGOGNE, 210 U.S. 95; LEVINSON V. DEUPREE, 345 U.S. 648; THE TUNGUS
V. SKOVGAARD, 358 U.S. 588; UNITED PILOTS ASSN. V. HALECKI, 358 U.S.
613.  IN SUCH A CASE THE MARITIME LAW ENFORCES THE STATE STATUTE "AS IT
WOULD ONE ORIGINATING IN ANY FOREIGN JURISDICTION."  LEVINSON V.
DEUPREE, 345 U.S. 648, 652. 

THIS MEANS THAT IN AN ACTION FOR WRONGFUL DEATH IN STATE TERRITORIAL
WATERS THE CONDUCT SAID TO GIVE RISE TO LIABILITY IS TO BE MEASURED NOT
UNDER ADMIRALTY'S STANDARDS OF DUTY, BUT UNDER THE SUBSTANTIVE
STANDARDS OF THE STATE LAW.  UNITED PILOTS ASSN. V. HALECKI, 358 U.S.
613, 615.  SEE ALSO CURTIS V. A. GARCIA Y CIA., 241 F.2D 30 (C.A. 3D
CIR.); THE H.S., INC., 130 F.2D 341 (C.A. 3D CIR.); KLINGSEISEN V.
COSTANZO TRANSP.  CO., 101 F.2D 902 (C.A. 3D CIR.); GRAHAM V. A. LUSI,
LTD., 206 F.2D 223 (C.A. 5TH CIR.); TRUELSON V. WHITNEY & BODDEN
SHIPPING CO., 10 F.2D 412 (C.A. 5TH CIR.); QUINETTE V. BISSO, 136 F.
825 (C.A. 5TH CIR.); LEE V. PURE OIL CO., 218 F.2D 711 (C.A. 6TH CIR.);
FEIGE V. HURLEY, 89 F.2D 575 (C.A. 6TH CIR.); HOLLEY V. THE MANFRED
STANSFIELD, 269 F.2D 317 (C.A. 4TH CIR.).  (FN8)  ADMIRALTY COURTS,
WHEN INVOKED TO PROTECT RIGHTS ROOTED IN STATE LAW, ENDEAVOR TO
DETERMINE THE ISSUES IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE
STATE."  GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239, 245. 

ACCEPTING THIS PRINCIPLE, WE FIND NO CONSTITUTIONAL IMPEDIMENT TO THE
APPLICATION, BY THE MARITIME LAW, OF OREGON'S EMPLOYERS' LIABILITY LAW
TO A DEATH ACTION IN WHICH THE STATUTE WOULD OTHERWISE BY ITS TERMS
APPLY.  WE ARE CONCERNED WITH CONSTITUTIONAL ADJUDICATION, NOT WITH
REACHING PARTICULAR RESULTS IN GIVEN CASES.  WHAT WAS SAID LAST TERM IN
DECIDING THE TUNGUS V. SKOVGAARD, 358 U.S. 588, IS CONTROLLING HERE: 

"THE POLICY EXPRESSED BY A STATE LEGISLATURE IN ENACTING A WRONGFUL
DEATH STATUTE IS NOT MERELY THAT DEATH SHALL GIVE RISE TO A RIGHT OF
RECOVERY, NOR EVEN THAT TORTIOUS CONDUCT RESULTING IN DEATH SHALL BE
ACTIONABLE, BUT THAT DAMAGES SHALL BE RECOVERABLE WHEN CONDUCT OF A
PARTICULAR KIND RESULTS IN DEATH.  IT IS INCUMBENT UPON A COURT
ENFORCING THAT POLICY TO ENFORCE IT ALL; IT MAY NOT PICK OR CHOOSE." 
358 U.S., AT 593. 

"EVEN SOUTHERN PACIFIC CO. V. JENSEN, WHICH FATHERED THE 'UNIFORMITY'
CONCEPT, RECOGNIZED THAT UNIFORMITY IS NOT OFFENDED BY 'THE RIGHT GIVEN
TO RECOVER IN DEATH CASES.'  244 U.S. 205, AT 216.  IT WOULD BE AN
ANOMALY TO HOLD THAT A STATE MAY CREATE A RIGHT OF ACTION FOR DEATH,
BUT THAT IT MAY NOT DETERMINE THE CIRCUMSTANCES UNDER WHICH THAT RIGHT
EXISTS.  THE POWER OF A STATE TO CREATE SUCH A RIGHT INCLUDES OF
NECESSITY THE POWER TO DETERMINE WHEN RECOVERY SHALL BE PERMITTED AND
WHEN IT SHALL NOT.  CF. CALDAROLA V. ECKERT, 332 U.S. 155."  358 U.S.,
AT 594. 

WE LEAVE OPEN THE QUESTION WHETHER A STATE WRONGFUL DEATH ACT MIGHT
CONTAIN PROVISIONS SO OFFENSIVE TO TRADITIONAL PRINCIPLES OF MARITIME
LAW THAT THE ADMIRALTY WOULD DECLINE TO ENFORCE THEM.  THE OREGON
STATUTE HERE IN ISSUE PRESENTS NO SUCH PROBLEM.  INDEED, AS THE
PETITIONER POINTS OUT, THE EMPLOYERS' LIABILITY LAW CONTAINS MANY
PROVISIONS MORE IN CONSONANCE WITH TRADITIONAL PRINCIPLES OF ADMIRALTY
THAN THE STATE'S GENERAL WRONGFUL DEATH STATUTE.  WE HOLD, THEREFORE,
THAT THE RIGHT OF ACTION FOR WRONGFUL DEATH CREATED BY THE OREGON
EMPLOYERS' LIABILITY LAW MAY BE INVOKED TO RECOVER FOR A MARITIME DEATH
IN THAT STATE WITHOUT CONSTITUTIONAL INHIBITION. 

WHETHER THE STATUTE BY ITS TERMS, AND AS CONSTRUED BY THE OREGON
SUPREME COURT, WOULD EXTEND TO THE PRESENT CASE, AND WHETHER, IF THE
STATUTE IS APPLICABLE, THE UNITED STATES VIOLATED THE STANDARD OF CARE
WHICH IT PRESCRIBES, ARE QUESTIONS WHICH WE DO NOT UNDERTAKE TO DECIDE,
AND UPON WHICH WE INTIMATE NO VIEW.  THE DISTRICT COURT MADE AN
ALTERNATIVE RULING THAT THE STATUTE WAS INAPPLICABLE AS A MATTER OF
STATE LAW.  THE COURT OF APPEALS DID NOT REACH THE QUESTION.  ALTHOUGH
THIS ISSUE HAS BEEN ARGUED HERE, WE LEAVE ITS DISPOSITION TO A COURT
MORE AT HOME WITH THE LAW OF OREGON.  (FN9) 

THE JUDGMENT IS SET ASIDE AND THE CASE REMANDED TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT.  SO ORDERED. 

FN1  28 U.S.C. SECS. 1346(B), 2674. 

FN2  ORE.  REV.  STAT. SEC. 30.020. 

FN3  ORE.  REV.  STAT. SEC. 654.305 ET SEQ. 

FN4  "ACTION BY PERSONAL REPRESENTATIVE FOR WRONGFUL DEATH.  WHEN THE
DEATH OF A PERSON IS CAUSED BY THE WRONGFUL ACT OR OMISSION OF ANOTHER,
THE PERSONAL REPRESENTATIVES OF THE DECEDENT, FOR THE BENEFIT OF THE
SURVIVING SPOUSE AND DEPENDENTS AND IN CASE THERE IS NO SURVIVING
SPOUSE OR DEPENDENTS, THEN FOR THE BENEFIT OF THE ESTATE OF THE
DECEDENT, MAY MAINTAIN AN ACTION AGAINST THE WRONGDOER, IF THE DECEDENT
MIGHT HAVE MAINTAINED AN ACTION, HAD HE LIVED, AGAINST THE WRONGDOER
FOR AN INJURY DONE BY THE SAME ACT OR OMISSION.  SUCH ACTION SHALL BE
COMMENCED WITHIN TWO YEARS AFTER THE DEATH, AND DAMAGES THEREIN SHALL
NOT EXCEED $20,000, WHICH MAY INCLUDE A RECOVERY FOR ALL REASONABLE
EXPENSES PAID OR INCURRED FOR FUNERAL, BURIAL, DOCTOR, HOSPITAL OR
NURSING SERVICES FOR THE DECEASED."  ORE.  REV.  STAT. SEC. 30.020. 

FN5  "PROTECTION AND SAFETY OF PERSONS IN HAZARDOUS EMPLOYMENT
GENERALLY.  GENERALLY, ALL OWNERS, CONTRACTORS OR SUBCONTRACTORS AND
OTHER PERSONS HAVING CHARGE OF, OR RESPONSIBLE FOR, ANY WORK INVOLVING
A RISK OR DANGER TO THE EMPLOYES OR THE PUBLIC, SHALL USE EVERY DEVICE,
CARE AND PRECAUTION WHICH IT IS PRACTICABLE TO USE FOR THE PROTECTION
AND SAFETY OF LIFE AND LIMB, LIMITED ONLY BY THE NECESSITY FOR
PRESERVING THE EFFICIENCY OF THE STRUCTURE, MACHINE OR OTHER APPARATUS
OR DEVICE, AND WITHOUT REGARD TO THE ADDITIONAL COST OF SUITABLE
MATERIAL OR SAFETY APPLIANCE AND DEVICES."  ORE.  REV. STAT. SEC.
654.305. 

FN6  "WHO MAY PROSECUTE DAMAGE ACTION FOR DEATH; DAMAGES UNLIMITED. 
IF THERE IS ANY LOSS OF LIFE BY REASON OF VIOLATIONS OF ORS 654.305 TO
654.335 BY ANY OWNER, CONTRACTOR OR SUBCONTRACTOR OR ANY PERSON LIABLE
UNDER ORS 654.305 TO 654.335, THE SURVIVING SPOUSE AND CHILDREN AND
ADOPTED CHILDREN OF THE PERSON SO KILLED AND, IF NONE, THEN HIS OR HER
LINEAL HEIRS AND, IF NONE, THEN THE MOTHER OR FATHER, AS THE CASE MAY
BE, SHALL HAVE A RIGHT OF ACTION WITHOUT ANY LIMIT AS TO THE AMOUNT OF
DAMAGES WHICH MAY BE AWARDED.  IF NONE OF THE PERSONS ENTITLED TO
MAINTAIN SUCH ACTION RESIDE WITHIN THE STATE, THE EXECUTOR OR
ADMINISTRATOR OF THE DECEASED PERSON MAY MAINTAIN SUCH ACTION FOR THEIR
RESPECTIVE BENEFITS AND IN THE ORDER ABOVE NAMED."  ORE.  REV. STAT.
SEC. 654.325. 

"CONTRIBUTORY NEGLIGENCE.  THE CONTRIBUTORY NEGLIGENCE OF THE PERSON
INJURED SHALL NOT BE A DEFENSE, BUT MAY BE TAKEN INTO ACCOUNT BY THE
JURY IN FIXING THE AMOUNT OF THE DAMAGE."  ORE.  REV. STAT. SEC.
654.335. 

FN7  THE PETITIONER ARGUES THAT "THE PLACE WHERE THE ACT OR OMISSION
OCCURRED" WAS ON THE DAM ITSELF, AN EXTENSION OF THE LAND, AND THAT,
THEREFORE, THIS CASE SHOULD BE DECIDED IN ACCORDANCE WITH THE LAW THAT
OREGON WOULD APPLY TO TORTS OCCURRING ON LAND.  IT IS CLEAR, HOWEVER,
THAT THE TERM "PLACE" IN THE FEDERAL TORTS CLAIMS ACT MEANS THE
POLITICAL ENTITY, IN THIS CASE OREGON, WHOSE LAWS SHALL GOVERN THE
ACTION AGAINST THE UNITED STATES "IN THE SAME MANNER AND TO THE SAME
EXTENT AS A PRIVATE INDIVIDUAL UNDER LIKE CIRCUMSTANCES."  28 U.S.C.
SEC. 2674.  THERE CAN BE NO QUESTION BUT THAT OREGON WOULD BE REQURIED
TO APPLY MARITIME LAW IF THIS WERE AN ACTION BETWEEN PRIVATE PARTIES,
SINCE A TORT ACTION FOR INJURY OR DEATH OCCURRING UPON NAVIGABLE WATERS
IS WITHIN THE EXCLUSIVE REACH OF MARITIME LAW.  THE PLYMOUTH, 3 WALL. 
20, 35, 36.  SEE MAGRUDER AND GROUT, WRONGFUL DEATH WITHIN THE
ADMIRALTY JURISDICTION, 35 YALE L.J. 395, 404.  THIS CASE DOES NOT
INVOLVE THE QUESTION THAT WOULD BE PRESENTED IF WRONGFUL CONDUCT
OCCURRING WITHIN THE TERRITORY OF ONE POLITICAL ENTITY CAUSED INJURY OR
DEATH WITHIN A DIFFERENT POLITICAL ENTITY.  CF. EASTERN AIR LINES V.
UNION TRUST CO., 95 U.S. APP. D.C. 189, 221 F.2D 62. 

FN8  WE ARE NOT HERE CONCERNED WITH THOSE RIGHTS CONFERRED BY THE
DEATH ON THE HIGH SEAS ACT, 41 STAT. 537 ET SEQ., 46 U.S.C. SEC. 761 ET
SEQ.; THE JONES ACT, 41 STAT. 1007, 46 U.S.C.  SEC. 688; OR THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 44 STAT. 1424 ET
SEQ., 33 U.S.C. SEC. 901 ET SEQ. 

FN9  IN CONTENDING THAT THE STATUTE IS APPLICABLE, THE PETITIONER
REFERS US TO THE FOLLOWING OREGON DECISIONS, AMONG OTHERS:  BYERS V.
HARDY, 68 ORE.  ADVANCE SHEETS 557, 337 P.2D 806; DREFS V. HOLMAN
TRANSFER CO., 130 ORE.  452, 280 P. 505; RORVIK V. NORTH PACIFIC LUMBER
CO., 99 ORE.  58, 190 P. 331, 195 P. 163; C.D. JOHNSON LUMBER CORP. V.
HUTCHENS, 194 F.2D 574; COOMER V. SUPPLE INVESTMENT CO., 128 ORE.  224,
274 P. 302; MYERS V. STAUB, 201 ORE.  663, 272 P.2D 203; TAMM V.
SAUSET, 67 ORE.  292, 135 P. 868; WARNER V. SYNNES, 114 ORE.  451, 230
P. 362, 235 P. 305; WALTERS V. DOCK COMMISSION, 126 ORE.  487, 245 P.
1117, 266 P. 634, 270 P. 778.  THE UNITED STATES, IN ASSERTING THAT THE
STATUTE IS INAPPLICABLE, CITES MANY OF THE SAME OREGON AUTHORITIES. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR.
JUSTICE BRENNAN JOIN THE OPINION OF THE COURT, BUT SOLELY UNDER
COMPULSION OF THE COURT'S RULING IN THE TUNGUS V. SKOVGAARD, 358 U.S.
588.  THEY BELIEVE THAT AS LONG AS THE VIEW OF THE LAW REPRESENTED BY
THAT RULING PREVAILS IN THE COURT, IT SHOULD BE APPLIED EVENHANDEDLY,
DESPITE THE CONTRARY VIEWS OF SOME OF THOSE ORIGINALLY JOINING IT THAT
STATE LAW IS THE MEASURE OF RECOVERY WHEN IT HELPS THE DEFENDANT, AS IN
TUNGUS, AND IS NOT THE MEASURE OF RECOVERY WHEN IT MILITATES AGAINST
THE DEFENDANT AS IT DOES HERE.  HOWEVER, THEY NOTE THEIR CONTINUED
DISAGREEMENT WITH THE RULING IN THE TUNGUS, AND RESERVE THEIR POSITION
AS TO WHETHER IT SHOULD BE OVERRULED, PARTICULARLY IN THE LIGHT OF THE
CONTROVERSY APPLICATION OF IT HAS ENGENDERED AMONG ITS ORIGINAL
SUBSCRIBERS.  SEE THE VARIOUS SEPARATE OPINIONS IN THIS CASE AND IN
GOETT V. UNION CARBIDE CORP., POST, P. 340. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 
SINCE THE HAMILTON, 207 U.S. 398, IT HAS BEEN SETTLED LAW THAT AN
ACTION IN PERSONAM FOR WRONGFUL DEATH OCCURRING ON NAVIGABLE WATERS,
NOT AVAILABLE UNDER MARITIME LAW, THE HARRISBURG, 119 U.S. 199, MAY BE
BROUGHT UNDER A STATE WRONGFUL DEATH STATUTE.  IN THE TUNGUS V.
SKOVGAARD, 358 U.S. 588, DECIDED LAST TERM, WE HELD THAT SUCH AN ACTION
COULD BE MAINTAINED ONLY IN ACCORDANCE WITH THE LIMITATIONS PLACED UPON
IT BY STATE LAW.  THIS CASE PRESENTS THE FURTHER QUESTION, NOT INVOLVED
IN THE TUNGUS, NAMELY, WHETHER SUCH AN ACTION LIES WHEN THE CONDUCT
SAID TO GIVE RISE TO LIABILITY IS MEASURED UNDER STATE LAW BY GREATER
SUBSTANTIVE STANDARDS OF DUTY THAN THOSE WHICH WOULD HAVE GOVERNED THE
SAME CONDUCT UNDER MARITIME LAW HAD DEATH NOT OCCURRED.  (FN1) 

THE COURT, IF I READ ITS OPINION ARIGHT, HOLDS THAT WHEN A VICTIM OF
A MARITIME TORT DIES AS A RESULT OF SUCH CONDUCT THE LAW OF THE STATE
WHOSE WRONGFUL DEATH STATUTE IS INVOKED WHOLLY GOVERNS LIABILITY. 
(FN2)  AT THE SAME TIME THE COURT LEAVES OPEN THE QUESTION WHETHER A
STATE WRONGFUL DEATH ACT MIGHT CONTAIN "PROVISIONS SO OFFENSIVE TO
TRADITIONAL PRINCIPLES OF MARITIME LAW THAT THE ADMIRALTY WOULD DECLINE
TO ENFORCE THEM," FINDING THAT THIS OREGON STATUTE "PRESENTS NO SUCH
PROBLEM." 

I CANNOT AGREE WITH THE VIEW THAT WRONGFUL DEATH ACTIONS GROWING OUT
OF MARITIME TORTS ARE SO PERVASIVELY CONTROLLED BY STATE LAW, OR WITH
THE CONCLUSION THAT THIS STATE STATUTE IN ITS SUBSTANTIVE PROVISIONS
IS, IN ANY EVENT, NOT OFFENSIVE TO MARITIME LAW.  NOR CAN I SUBSCRIBE
TO THE INTIMATION THAT THE QUESTION WHICH THE COURT RESERVES IS
SERIOUSLY OPEN TO DEBATE.  BECAUSE OF THE IMPORTANCE OF THE ISSUE, A
FULLER STATEMENT OF MY VIEWS IS JUSTIFIED THAN MIGHT BE APPROPRIATE IN
A CASE OF LESSER GENERAL CONCERN. 

I. 

IT IS SURELY BEYOND DISPUTE THAT THE OREGON EMPLOYERS' LIABILITY LAW,
ORE.  REV.  STAT.  SEC. 654.305, IMPOSES A STRICTER STANDARD OF DUTY
THAN THAT IMPOSED BY MARITIME LAW.  UNDER MARITIME LAW THE BASIS OF
LIABILITY IN CASES LIKE THIS IS THE FAILURE TO USE REASONABLE CARE IN
LIGHT OF THE ATTENDANT CIRCUMSTANCES, THAT IS, NEGLIGENCE.  SEE
KERMAREC V. COMPAGNIE GENERALE, 358 U.S. 625, 630, 632.  THE STATE
STATUTE, ON THE OTHER HAND, IMPOSES THE DUTY TO USE: 

"EVERY DEVICE, CARE AND PRECAUTION WHICH IT IS PRACTICABLE TO USE FOR
THE PROTECTION AND SAFETY OF LIFE AND LIMB, LIMITED ONLY BY THE
NECESSITY FOR PRESERVING THE EFFICIENCY OF THE  ...  DEVICE, AND
WITHOUT REGARD TO THE ADDITIONAL COST OF SUITABLE MATERIAL OR SAFETY
APPLIANCE AND DEVICES."  ORE.  REV. STAT. SEC. 654.305. 

OREGON ITSELF HAS RECOGNIZED THAT THIS STATUTE IMPOSES A "MUCH HIGHER
DEGREE OF CARE," HOFFMAN V. BROADWAY HAZELWOOD, 139 ORE.  519, 524, 10
P.2D 349, 351, 11 P.2D 814, THAN THAT GENERALLY REQUIRED OF DEFENDANTS
IN ACCIDENT CASES.  SEE CAMENZIND V. FREELAND FURNITURE CO., 89 ORE. 
158, 172-173, 174 P. 139, 144.  SO MUCH INDEED I DO NOT UNDERSTAND THE
COURT TO DENY. 

                    II. 

HAD THIS ACCIDENT RESULTED IN INJURIES SHORT OF DEATH, IT IS CLEAR
THAT THE UNITED STATES COULD NOT HAVE BEEN HELD LIABLE EXCEPT IN
ACCORDANCE WITH THE STANDARDS OF DUTY IMPOSED BY MARITIME LAW.  THIS
FOLLOWS FROM THE GENERAL CONSTITUTIONAL DOCTRINE OF FEDERAL SUPREMACY
IN MARITIME AFFAIRS, AND MORE PARTICULARLY FROM THE RULE FIRST
UNMISTAKABLY ANNOUNCED IN CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S.
372, WHICH REJECTED THE NOTION THAT THE "SAVING CLAUSE" OF SEC. 9 OF
THE JUDICIARY ACT OF 1789, 1 STAT. 77, PERMITTED THE APPLICATION IN
MARITIME TORT CASES OF STATE SUBSTANTIVE RULES IN DEROGATION OF
MARITIME LAW.  (FN3)  THAT CASE WAS A MARITIME TORT ACTION BROUGHT IN A
STATE COURT BY A SEAMAN, SEEKING COMPENSATORY DAMAGES FOR INJURIES
CLAIMED TO HAVE BEEN CAUSED BY THE NEGLIGENCE OF HIS EMPLOYER. 
HISTORICALLY, MARITIME LAW RECOGNIZED NO SUCH CAUSE OF ACTION.  THE
DUTY OF A SHIPOWNER TO AN INJURED CREWMAN WAS ONLY TO PROVIDE FOR HIS
MAINTENANCE AND CURE, AND THAT IRRESPECTIVE OF NEGLIGENCE; FULL
INDEMNITY WAS OWING ONLY FOR BREACH OF THE WARRANTY OF SEAWORTHINESS. 
(FN4)  THE COURT HELD, FIRST, THAT SEC. 20 OF THE MERCHANT MARINE ACT
OF 1915, 38 STAT. 1185, (FN5) NOTWITHSTANDING, SUCH WAS STILL THE
RULE.  THIS BEING SO, A STATE COURT WAS NOT FREE TO APPLY ANY OTHER
RULE TO A MARITIME TORT: 

"PLAINLY, WE THINK, UNDER THE SAVING CLAUSE A RIGHT SANCTIONED BY THE
MARITIME LAW MAY BE ENFORCED THROUGH ANY APPROPRIATE REMEDY RECOGNIZED
AT COMMON LAW; BUT WE FIND NOTHING THEREIN WHICH REVEALS AN INTENTION
TO GIVE THE COMPLAINING PARTY AN ELECTION TO DETERMINE WHETHER THE
DEFENDANT'S LIABILITY SHALL BE MEASURED BY COMMON-LAW STANDARDS RATHER
THAN THOSE OF THE MARITIME LAW.  UNDER THE CIRCUMSTANCES HERE
PRESENTED, WITHOUT REGARD TO THE COURT WHERE HE MIGHT ASK RELIEF,
PETITIONER'S RIGHTS WERE THOSE RECOGNIZED BY THE LAW OF THE SEA."  ID.,
AT 384. 

THIS RULE WAS SOON REITERATED IN TWO SUBSEQUENT CASES.  THE FIRST WAS
CARLISLE PACKING CO. V. SANDANGER, 259 U.S. 255, WHICH, LIKE CHELENTIS,
WAS A STATE COURT ACTION BY A CREW MEMBER AGAINST THE SHIPOWNER. 
INJURY WAS ALLEGEDLY CAUSED BY MISLABELING OF A CAN OF GASOLINE AND BY
THE NEGLIGENT FAILURE TO STOCK A LIFE PRESERVER ON BOARD.  A JUDGMENT
FOR PLAINTIFF WAS AFFIRMED, BUT ON THE GROUND THAT THE VESSEL WAS
UNSEAWORTHY IN THE RESPECTS NAMED; THE EXISTENCE OF A CAUSE OF ACTION
FOR NEGLIGENCE WAS DENIED.  "THE GENERAL RULES OF THE MARITIME LAW
APPLY WHETHER THE PROCEEDING BE INSTITUTED IN AN ADMIRALTY OR COMMON
LAW COURT."  ID., AT 259.  THE SECOND CASE WAS ROBINS DRY DOCK CO. V.
DAHL, 266 U.S. 449, WHERE THE ACTION, AGAIN IN A STATE COURT FOR
NEGLIGENCE, WAS BY AN EMPLOYEE OF AN INDEPENDENT CONTRACTOR AGAINST HIS
EMPLOYER FOR A SHIPBOARD INJURY.  SUCH A RIGHT OF ACTION EXISTED IN
ADMIRALTY, ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52, AND THE
QUESTION WAS AS TO THE SCOPE OF THE DEFENDANT'S DUTY.  HERE TOO THE
SAME PRINCIPLE OF FEDERAL SUPREMACY WAS UPHELD.  AN INSTRUCTION
PERMITTING THE JURY TO CONSIDER THE REQUIREMENTS OF A STATE SAFETY
STATUTE ON THE ISSUE OF NEGLIGENCE WAS HELD ERRONEOUS.  "THE RIGHTS AND
LIABILITIES OF THE PARTIES AROSE OUT OF AND DEPENDED UPON THE GENERAL
MARITIME LAW AND COULD NOT BE ENLARGED OR IMPAIRED BY THE STATE
STATUTE."  266 U.S., AT 457. 

LARGELY OWING TO THE PASSAGE OF THE JONES ACT, 46 U.S.C. SEC. 688,
(FN6) WHICH BOUND NONADMIRALTY AS WELL AS ADMIRALTY COURTS, (FN7) THE
ISSUE WAS NOT AGAIN RAISED IN LITIGATION HERE FOR SEVERAL DECADES. 
GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239, HOWEVER, DEMONSTRATES THE
PERVASIVE SCOPE GIVEN TO THE SAME PRINCIPLE OF FEDERAL SUPREMACY IN THE
APPLICATION OF THAT ACT.  THERE A STATE WAS DENIED POWER, BY
CHARACTERIZING THE MATTER AS "PROCEDURAL," TO APPLY ITS OWN RULES TO
THE QUESTION OF BURDEN OF PROOF OF FRAUD IN THE OBTAINING OF A RELEASE
FROM AN INJURED SEAMAN.  RATHER THE STATE COURT WAS REQUIRED TO APPLY
THE RULE ADOPTED BY FEDERAL MARITIME LAW.  THE CASE THUS MANIFESTS THE
CONTINUED VITALITY OF THE SUPREMACY PRINCIPLE IN THIS AREA.  317 U.S.,
AT 244, N. 10. 

IT REMAINED FOR POPE & TALBOT, INC., V. HAWN, 346 U.S. 406,
UNMISTAKABLY TO DEMONSTRATE THAT THE PRINCIPLE EMBODIED IN THE
CHELENTIS, SANDANGER, AND ROBINS DRY DOCK DECISIONS HAD NOT WITHERED
WITH TIME.  THERE A SHORE-BASED CARPENTER, EMPLOYED BY AN INDEPENDENT
CONTRACTOR, SOUGHT A RECOVERY AGAINST A SHIPOWNER BASED ON NEGLIGENCE
(FN8) AND UNSEAWORTHINESS.  THE COURT HELD THAT UNDER FEDERAL LAW A
RIGHT OF ACTION WAS AVAILABLE ON BOTH GROUNDS, AND THAT UNDER THE
MARITIME RULE THE EFFECT OF PLAINTIFF'S CONTRIBUTORY NEGLIGENCE WAS TO
DIMINISH, BUT NOT WHOLLY DEFEAT, HIS RECOVERY.  THIS BEING SO, A STATE
WAS DEBARRED FROM APPLYING ANOTHER RULE. 

FINALLY, WHEN, ONLY LAST TERM, THE COURT CAME TO CONSIDER, IN
KERMAREC V. COMPAGNIE GENERALE, 358 U.S. 625, THE SCOPE OF A
SHIPOWNER'S DUTY OF CARE TOWARD A SOCIAL GUEST OF A CREW MEMBER, IT HAD
NO HESITATION ABOUT THE PROPOSITION THAT FEDERAL LAW MUST GOVERN AN
ACTION WITHIN THE JURISDICTION OF ADMIRALTY. 

"THE DISTRICT COURT WAS IN ERROR IN RULING THAT THE GOVERNING LAW IN
THIS CASE WAS THAT OF THE STATE OF NEW YORK.  KERMAREC WAS INJURED
ABOARD A SHIP UPON NAVIGABLE WATERS.  IT WAS THERE THAT THE CONDUCT OF
WHICH HE COMPLAINED OCCURRED.  THE LEGAL RIGHTS AND LIABILITIES ARISING
FROM THAT CONDUCT WERE THEREFORE WITHIN THE FULL REACH OF THE ADMIRALTY
JURISDICTION AND MEASURABLE BY THE STANDARDS OF MARITIME LAW  ...  .
IF THIS ACTION HAD BEEN BROUGHT IN A STATE COURT, REFERENCE TO
ADMIRALTY LAW WOULD HAVE BEEN NECESSARY TO DETERMINE THE RIGHTS AND
LIABILITIES OF THE PARTIES.  CARLISLE PACKING CO. V. SANDANGER, 259
U.S. 255, 259.  WHERE THE PLAINTIFF EXERCISES THE RIGHT CONFERRED BY
DIVERSITY OF CITIZENSHIP TO CHOOSE A FEDERAL FORUM, THE RESULT IS NO
DIFFERENT, EVEN THOUGH HE EXERCISES THE FURTHER RIGHT TO A JURY TRIAL. 
WHATEVER DOUBT MAY ONCE HAVE EXISTED ON THAT SCORE WAS EFFECTIVELY LAID
TO REST BY POPE & TALBOT, INC., V. HAWN, 346 U.S. 406, 410-11."  ID.,
AT 628. 

I THINK IT IS CLEAR, THEN, THAT THE SUPREMACY PRINCIPLE ESTABLISHED
BY THIS LINE OF CASES MAY NOT BE SHRUGGED OFF AS A DISCREDITED RELIC OF
AN EARLIER DAY.  (FN9)  INDEED, THE COURT'S TOTAL DISREGARD OF THAT
PRINCIPLE IN THE PRESENT CASE IS NOT GROUNDED ON THE VIEW THAT IT IS NO
LONGER GENERALLY VIABLE.  RATHER, THE COURT APPEARS TO CONSIDER IT
INAPPLICABLE IN AN ACTION FOR WRONGFUL DEATH.  FOR REASONS NOW TO BE
DISCUSSED I THINK THIS IS A MISTAKEN VIEW. 

                                             III. 

WHAT I SHALL ADDRESS MYSELF TO AT THIS POINT IS THE REASON WHY
MARITIME LAW PERMITS RESORT TO STATE WRONGFUL DEATH STATUTES.  (FN10)
FOR IT IS ONLY THROUGH AN UNDERSTANDING OF THAT REASON THAT LIGHT CAN
BE SHED ON THE PIVOTAL ISSUE IN THIS CASE. 

UNFORTUNATELY SUCH RATIONALIZATION AS HAS BEEN MADE OF THE PROBLEM IN
THE WRONGFUL DEATH CASES IN THIS COURT DOES NOT CARRY US VERY FAR.  MR.
JUSTICE HOLMES IN THE HAMILTON WAS CONTENT TO SAY NO MORE THAN THAT
PERMITTING STATE DEATH STATUTES TO BE USED WOULD NOT PRODUCE "ANY
LAMENTABLE LACK OF UNIFORMITY" IN THE MARITIME LAW.  207 U.S., AT 406. 
MR. JUSTICE MCREYNOLDS IN WESTERN FUEL CO. V. GARCIA, 257 U.S. 233,
SIMPLY OBSERVED THAT THE USE OF SUCH STATUTES WAS "THE LOGICAL RESULT
OF PRIOR DECISIONS," THAT "THE SUBJECT IS MARITIME AND LOCAL IN
CHARACTER," AND THAT THE INNOVATION "WILL NOT WORK MATERIAL PREJUDICE
TO THE CHARACTERISTIC FEATURES OF THE GENERAL MARITIME LAW, NOR
INTERFERE WITH THE PROPER HARMONY AND UNIFORMITY OF THAT LAW IN ITS
INTERNATIONAL AND INTERSTATE RELATIONS."  ID., AT 242.  (FN11) 

OTHER RATIONALIZATIONS OF THE SUBJECT LEAVE MUCH TO BE DESIRED.  IT
HAS BEEN SAID THAT THE APPLICATION OF STATE WRONGFUL DEATH STATUTES IS
PERMITTED TO "FILL A VOID" IN MARITIME LAW.  SEE, E.G., 41 VA. L. REV.
251, 252; 34 B.U.L. REV. 365, 366; CF. THE TUNGUS, SUPRA, AT 592.  BUT
THERE IS A "VOID" ONLY IN THE SENSE THAT THERE IS AN ABSENCE OF A RIGHT
OF ACTION IN SUCH CASES; ADMIRALTY DOES NOT LACK A RULE ON THE
SUBJECT.  IT HAS ALSO BEEN SUGGESTED THAT THE COURT PERMITS THE
APPLICATION OF STATE DEATH ACTS BECAUSE IT REGARDS SUCH STATUTES AS
WISER IN THIS RESPECT THAN MARITIME LAW, ALTHOUGH IT DEEMS ITSELF
UNABLE TO ALTER THE DISFAVORED FEDERAL RULE.  SEE, E.G., NOTE, 73 HARV.
L. REV. 84, 148, 149.  BUT IF THE RULE OF THE HARRISBURG IS SO FIRMLY
ESTABLISHED THAT LEGISLATION IS THE ONLY AVAILABLE MEANS OF REFORM, CF.
THE TUNGUS, SUPRA, AT 590, 599, IT IS SCARCELY LEGITIMATE TO TURN, FOR
THAT VERY REASON, TO STATE LAW.    I THINK THE FAULT WITH SUCH
EXPLANATIONS LIES IN THE EMPHASIS GIVEN TO ADMIRALTY'S ENDEAVOR TO FIND
IN STATE LAW A SUPPLEMENT TO ITS OWN SHORTCOMINGS, SOMETHING WHICH
FEDERAL POWER HAS ALWAYS BEEN FULLY COMPETENT TO REMEDY INTERNALLY ON
ITS OWN ACCOUNT.  INSTEAD, THE PROPER POINT OF DEPARTURE IS, I BELIEVE,
TO RECOGNIZE THAT IN PERMITTING USE OF WRONGFUL DEATH STATUTES
ADMIRALTY IS ENDEAVORING TO ACCOMMODATE ITSELF TO STATE POLICIES
REPRESENTED BY SUCH STATUTES.  THAT INDEED APPEARS TO HAVE BEEN THE
APPROACH OF CONGRESS IN ENACTING THE DEATH ON THE HIGH SEAS ACT, FOR AS
WAS SAID IN THE TUNGUS THE LEGISLATIVE HISTORY OF THAT ACT "DISCLOSES A
CLEAR CONGRESSIONAL PURPOSE TO LEAVE 'UNIMPAIRED THE RIGHTS UNDER STATE
STATUTES AS TO DEATHS ON WATERS WITHIN THE TERRITORIAL JURISDICTION OF
THE STATES'" AND "REFLECTS DEEP CONCERN THAT THE POWER OF THE STATES TO
CREATE ACTIONS FOR WRONGFUL DEATH IN NO WAY BE AFFECTED BY ENACTMENT OF
THE FEDERAL LAW."  358 U.S., AT 593.  AT THE SAME TIME THERE WAS NO
SUGGESTION THAT CONGRESS CONTEMPLATED THAT THE SUPREMACY OF ADMIRALTY
LAW SHOULD BE YIELDED TO THE STATES IN MARITIME DEATH CASES.  CF. ID.,
AT 607-608, SEPARATE OPINION.   IT ONLY CONFUSES THINGS TO SAY, AS HAS
SOMETIMES BEEN LOOSELY REMARKED, THAT IN MARITIME WRONGFUL DEATH CASES
ADMIRALTY ABSORBS STATE LAW, OR THAT THE STATES HAVE EMBRACED MARITIME
LAW.  STATE AND MARITIME SYSTEMS OF LAW STAND SEPARATELY, EVEN THOUGH
THE TWO MAY NOT ALWAYS BE MUTUALLY EXCLUSIVE, AND WHEN A CONFLICT
ARISES THE LATTER YIELDS TO THE FORMER ONLY IN FACE OF A SUPERIOR STATE
INTEREST.  THIS, I THINK, IS WHAT MR. JUSTICE MCREYNOLDS HAD IN MIND
WHEN HE STATED IN GARCIA THAT A WRONGFUL DEATH STATUTE IS A SUBJECT
BOTH "MARITIME AND LOCAL IN CHARACTER."  THE TRUE INQUIRY THUS BECOMES
ONE INVOLVING THE NATURE OF THE STATE INTEREST IN A WRONGFUL DEATH
STATUTE, THE EXTENT TO WHICH SUCH INTEREST INTRUDES UPON FEDERAL
CONCERNS, AND THE BASIS OF THE REASONING THAT LED MR. JUSTICE HOLMES TO
STATE SUMMARILY IN THE HAMILTON THAT RESORT TO SUCH STATUTES WOULD NOT
RESULT IN "ANY LAMENTABLE LACK OF UNIFORMITY" IN MARITIME LAW. 

WHAT NO LESSER AUTHORITY IN ADMIRALTY MATTERS THAN JUDGE ADDISON
BROWN SAID MANY YEARS AGO IN THE CITY OF NORWALK, 55 F. 98, (FN12) IS
HIGHLY ILLUMINATING.  HE GAVE THESE REASONS FOR PERMITTING A STATE
DEATH STATUTE TO APPLY TO A MARITIME TORT: 

"(1)  IT IS A GENERAL LAW OF PERSONAL RIGHTS, NOT SPECIALLY DIRECTED
TO COMMERCE OR NAVIGATION, BUT APPLYING ALIKE ON SEA OR SHORE; (2) IT
IS WITHIN THE POLICE POWER; FOR IT IS 'A STATUTE INTENDED TO PROTECT
LIFE,' (HUNTINGTON V. ATTRILL, 146 U.S. 657, 675  ...  ) THROUGH ONE OF
THE MOST EFFECTUAL OF ALL SANCTIONS, VIZ. BY IMPOSING ON THE OFFENDER A
LIABILITY TO PAY A PECUNIARY INDEMNITY; WHILE IN THE INTEREST OF THE
PUBLIC, IT ALSO TENDS TO AVERT THE DEPENDENCY OR PAUPERISM OF THE
SURVIVORS BY SHIFTING THE BURDEN OF THEIR SUPPORT, IN PART AT LEAST,
FROM THE COMMUNITY TO THE AUTHORS OF THE WRONG; (3) IT IS LOCAL IN ITS
SCOPE AND INTERFERES IN NO WAY WITH ANY NEEDFUL UNIFORMITY IN THE
GENERAL LAW OF THE SEAS, OR WITH INTERNATIONAL OR INTERSTATE
INTERESTS."  ID., AT 108. 

WHERE TORTIOUS CONDUCT CAUSES DEATH, THE DECISION OF A STATE TO
PROVIDE A RIGHT OF ACTION IN FAVOR OF THE VICTIM'S ESTATE OR
BENEFICIARIES REPRESENTS A RESPONSE TO CONSIDERATIONS PECULIARLY WITHIN
TRADITIONAL STATE COMPETENCE:  PROVIDING FOR THE VICTIM'S FAMILY, AND
PREVENTING PAUPERISM BY SHIFTING WHAT WOULD OTHERWISE BE A PUBLIC
RESPONSIBILITY TO THOSE WHO COMMITTED THE WRONG.  THESE ARE MATTERS
INTIMATELY CONCERNED WITH THE STATE'S INTEREST IN REGULATING FAMILIAL
RELATIONSHIPS.  MOREOVER, WHERE THE INJURY IS WRONGFUL UNDER MARITIME
LAW, THIS IS THE PREDOMINANT, IF INDEED NOT THE SOLE, PURPOSE OF THE
STATUTE.  IN SUCH INSTANCES THE STATE IS NOT LEGISLATING IN ORDER TO
AFFECT THE DEFENDANT'S CONDUCT, SINCE BY HYPOTHESIS A FEDERALLY IMPOSED
DUTY ALREADY EXISTS.  FOR MERELY BECAUSE NO FEDERAL ACTION LIES FOR
WRONGFUL DEATH, ONE CAN HARDLY SAY THAT THERE IS NO DUTY NOT TO KILL
THROUGH NEGLIGENCE, BUT THERE IS A DUTY NOT TO INJURE.  THE TORTIOUS
CONDUCT IS THE SAME IN EITHER CASE, AND WRONGFUL UNDER FEDERAL LAW. 
THE STATE STATUTE THEREFORE MAKES NO MEANINGFUL INROADS ON FEDERAL
INTERESTS.  TO QUOTE FURTHER FROM JUDGE BROWN: 

"THE STATE STATUTE DOES NOT CREATE THE CAUSE OF ACTION.  IT DOES,
INDEED, CREATE A NEW RIGHT, AND LIABILITY; BUT IT DOES NOT CREATE A
SINGLE ONE OF THE ELEMENTS THAT MAKE UP THE FUNDAMENTAL CAUSE OF
ACTION, THAT IS, THE ESSENTIAL GROUNDS OF THE DEMAND.  ALL THESE
ELEMENTS EXIST INDEPENDENTLY OF THE STATUTE, AND ARE NOT IN THE LEAST
AFFECTED BY IT.  IT NO MORE CREATES THE WRONG, OR THE DAMAGE, THAN IT
CREATES THE NEGLIGENCE OR THE DEATH; NOR DOES IT, AS IN THE PILOTAGE
AND DOUBLE WHARFAGE CASES, ADD ANYTHING TO THE DAMAGES SUSTAINED.  IT
AUTHORIZES NO RECOVERY EXCEPT FOR 'THE PECUNIARY DAMAGES' ALREADY
EXISTING.  IT IS APPARENT, THEREFORE, THAT, AS SUGGESTED BY MR. JUSTICE
CLIFFORD IN STEAMBOAT CO. V. CHASE, 16 WALL.  532, THE STATUTE DOES NO
MORE THAN 'TAKE THE CASE OUT OF THE OPERATION OF THE COMMON-LAW MAXIM
THAT AN ACTION FOR DEATH DIES WITH THE PERSON.'"  55 F., AT 109. 

"BEFORE THE STATUTE, THE CASE WAS DAMNUM ABSQUE INJURIA; BY THE
STATUTE, IT BECAME AT ONCE A TORT IN THE FULL LEGAL SENSE, AND A MARINE
TORT BY REASON OF ITS PLACE, ITS NATURE, AND ITS CIRCUMSTANCES  ...
."  ID., AT 110. 

THUS, WHERE THE DUTY IMPOSED BY A STATE DEATH ACT IS NO GREATER THAN
THAT ALREADY EXISTING UNDER FEDERAL LAW, THE APPLICATION OF THE STATUTE
IS SOLELY, OR NEARLY SO, A REACTION TO STRONG, LOCALIZED STATE
INTERESTS, AND THERE IS NO REAL ENCROACHMENT ON FEDERAL INTERESTS. 
(FN13) 

FAR DIFFERENT IS THE CASE WHEN A STATE PURPORTS, AS HERE, TO IMPOSE A
DUTY WHICH UNDER FEDERAL LAW A PERSON DOES NOT BEAR.  THEN IT CAN
HARDLY BE SAID THAT THE STATE IS NOT SEEKING TO REGULATE CONDUCT WITHIN
FEDERAL MARITIME JURISDICTION.  THE VERY PURPOSE OF A STATUTE LIKE THE
ONE HERE INVOKED IS TO INDUCE THOSE TO WHOM IT APPLIES TO TAKE THE
PRECAUTIONS REQUIRED BY IT.  IN SUCH A CASE, THE MERE FACT THAT IT IS A
DEATH ACT WHICH IMPOSES THE DUTY CANNOT BE THOUGHT TO RENDER THE IMPORT
OF THE MATTER OF "LOCAL" CONCERN ONLY.  THE STATE INTERESTS GIVEN
EXPRESSION NO LONGER ARE PREDOMINANTLY THOSE PECULIARLY WITHIN STATE
CONCERN.  BY THE SAME TOKEN THE INTRUSION INTO FEDERALLY REGULATED
INTERESTS IS NO LONGER MINIMAL. 

I CAN FIND NO JUSTIFICATION, CONSISTENT WITH THE COURSE OF
ADJUDICATION IN THIS COURT, FOR UPHOLDING STATE POWER HERE, WITHOUT SO
MUCH AS EVEN SUGGESTING THE NEED FOR AN INQUIRY AS TO THE EXTENT OF
FEDERAL INTEREST IN THE ACTIVITY IN QUESTION.  (FN14)

                                            IV. 

NOTHING IN THE WRONGFUL DEATH CASES ON WHICH THE COURT RELIES CALLS
FOR TODAY'S HOLDING.  NONE OF THEM INVOLVED, AS HERE, THE ASSERTION OF
ANY LOCAL RULES OF SUBSTANTIVE LAW GOING BEYOND THOSE APPLICABLE UNDER
FEDERAL STANDARDS.  (FN15)  THE ESSENTIAL FAILING IN THE COURT'S USE OF
THESE CASES IS ITS VIEW THAT, BECAUSE RIGHTS ASSERTED UNDER A STATE
DEATH STATUTE ARE MANIFESTLY RIGHTS CREATED BY THE STATE, NO FEDERAL
ELEMENT IS INVOLVED IN THEIR ASSERTION.  THE TRUTH IS, HOWEVER, THAT,
WHERE THE TORT IS MARITIME AND THE ACTION IS BROUGHT UNDER THE "SAVING
CLAUSE," STATE-CREATED RIGHTS MAY BE ASSERTED ONLY BY FEDERAL
PERMISSION.  THAT IS THE PREMISE ON WHICH THE HAMILTON, AND ITS
OFFSPRING, PROCEEDED.  WHEN SUCH A RIGHT IS ASSERTED, THE PLAINTIFF
MUST, HOWEVER, SHOW MORE THAN THAT A STATE CAN GIVE HIM A RIGHT TO
RECOVER; HE MUST ALSO SHOW THAT IT HAS DONE SO.  THUS, IF A STATE HAS
CHOSEN NOT TO PROVIDE A RIGHT OF ACTION TO ONE WHO DOES NOT SUE WITHIN
A STATED PERIOD, THE HARRISBURG, SUPRA; WESTERN FUEL CO. V. GARCIA,
SUPRA; LEVINSON V. DEUPREE, 345 U.S. 648, 651-652; TO ONE WHO DOES NOT
HAVE A STATED RELATIONSHIP TO THE DECEDENT, ID., AT 651; TO ONE WHOSE
DECEDENT'S NEGLIGENCE CONTRIBUTED TO THE FATAL INJURY, UNITED PILOTS
ASSN. V. HALECKI, 358 U.S. 613, 615; OR TO ONE WHOSE RIGHT OF ACTION IS
BASED ON BREACH OF THE UNIQUELY MARITIME DUTY TO PROVIDE A SEAWORTHY
SHIP, THE TUNGUS V. SKOVGAARD, SUPRA, THERE CAN BE NO RIGHT OF
RECOVERY, FOR NEITHER FEDERAL NOR STATE LAW AFFORDS IT.  (FN16)  FOR
THIS REASON, WHEN ASKING WHETHER A PLAINTIFF HAS MADE OUT A CAUSE OF
ACTION UNDER A STATE DEATH ACT, THE COURT APPROACHES THE STATUTE "AS IT
WOULD ONE ORIGINATING IN ANY FOREIGN JURISDICTION," LEVINSON V.
DEUPREE, SUPRA, AT 652, IN AN "ENDEAVOR TO DETERMINE THE ISSUES IN
ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE STATE," GARRETT V. MOORE
MCCORMACK CO., 317 U.S., AT 245.  THIS, BECAUSE THE STATE HAVING
CREATED THE RIGHT, ONE MUST LOOK TO STATE LAW TO "DETERMINE THE
CIRCUMSTANCES UNDER WHICH THAT RIGHT EXISTS."  THE TUNGUS, SUPRA, AT
594. 

BUT NONE OF THESE CASES IS APPOSITE WHEN THE QUESTION IS NOT WHETHER
A FEDERALLY PERMITTED STATE RIGHT OF ACTION HAS IN FACT BEEN CONFERRED
BY THE STATE, BUT WHETHER FEDERAL MARITIME LAW PERMITS THE STATE TO
CREATE AN ASSERTED RIGHT OF ACTION.  IT IS SURELY FALLACIOUS TO REASON
THAT, BECAUSE THE PRINCIPLE OF THE SUPREMACY OF FEDERAL MARITIME LAW
HAS BEEN HELD NOT TO BAR A RIGHT OF ACTION FOR DEATH CAUSED BY A
DEFENDANT'S FAILURE TO TAKE REASONABLE PRECAUTIONS TO AVOID EXPOSING
THOSE TO WHOM THE DUTY IS OWED TO AN UNDUE RISK OF HARM, IT FOLLOWS
THAT SUCH PRINCIPLE DOES NOT BAR A RIGHT OF ACTION FOR DEATH CAUSED BY
FAILURE TO "USE EVERY DEVICE, CARE AND PRECAUTION WHICH IT IS
PRACTICABLE TO USE," ORE.  REV.  STAT. SEC. 654.305.  WHEN THE COURT,
IN THE HAMILTON AND ITS SUCCESSORS, HELD THAT THE FEDERAL SUPREMACY
PRINCIPLE DID NOT PREVENT A STATE FROM GIVING ANY RIGHT OF ACTION FOR
WRONGFUL DEATH CAUSED BY A MARITIME TORT, IT DID NOT THEREBY ESCHEW
FOREVER ALL FEDERAL LIMITS ON THE CONTENT OF SUBSTANTIVE OBLIGATIONS
APPEARING IN STATUTES BEARING THE LABEL "WRONGFUL DEATH ACT." 

IT MAY BE THAT THE COURT DOES NOT INTEND TO GO SO FAR.  IT ASSERTS,
ALBEIT ALMOST AS AN AFTERTHOUGHT, THAT SOME STATE DOCTRINES MIGHT BE
CONSTITUTIONALLY INAPPLICABLE TO MARITIME TORTS, NOTWITHSTANDING THAT
THEY ARE EMBODIED IN A DEATH STATUTE.  (FN17)  IT THEN SUMMARILY FINDS
THE POSSIBLE RESERVATION INAPPLICABLE IN THIS INSTANCE ON THE GROUND
THAT OTHER PROVISIONS OF THE OREGON EMPLOYERS' LIABILITY LAW, NOT HERE
INVOLVED, RESEMBLE SOME ADMIRALTY DOCTRINES, WITH WHICH ALSO WE ARE NOT
NOW CONCERNED, MORE THAN DO COMPARABLE PROVISIONS IN THE STATE'S
GENERAL WRONGFUL DEATH STATUTE, WHICH PRESUMABLY CAN BE
CONSTITUTIONALLY APPLIED TO A MARITIME TORT.  WITH ALL DEFERENCE, I
MUST SAY THAT THE TOTAL IRRELEVANCE OF THAT FACT SEEMS PLAIN.  WE ARE
NOT REVIEWING THE GENERAL CONSTITUTIONALITY OF THE EMPLOYERS' LIABILITY
LAW; WE ARE CONCERNED ONLY WITH THE CONSTITUTIONALITY OF THE STANDARD
OF-CARE PROVISIONS OF THAT LAW, AS APPLIED TO AN EMPLOYEE OF AN
INDEPENDENT CONTRACTOR INJURED ON NAVIGABLE WATERS AND SEEKING TO
IMPOSE LIABILITY UPON THE OWNER AND OPERATOR OF A DAM.  THE COURT DOES
NOT FIND THAT THE FEDERAL INTEREST IN REGULATING THE CONDUCT OF THE DAM
OWNER IS SO MINIMAL - WHETHER BY REASON OF THE FIXED SITUS OF THE DAM
OR ON SOME OTHER GROUND - THAT THE FEDERAL SUPREMACY PRINCIPLE MAY
REASONABLY BE FOUND INAPPLICABLE.  NEITHER DOES THE COURT ASSERT, FOR
IT COULD SCARCELY DO SO, THAT THE STANDARD OF CARE REQUIRED BY THIS
STATUTE IS NOT SIGNIFICANTLY GREATER THAN THAT IMPOSED BY FEDERAL LAW. 
THUS, IF THE PRINCIPLE OF THE SUPREMACY OF MARITIME LAW CALLS FOR
ANYTHING MORE THAN AN EMPTY NOD, IT CALLS FOR A RESULT CONTRARY TO THAT
REACHED TODAY. 

IT IS SUGGESTED THAT A CONTRARY DECISION WILL LACK "EVENHANDEDNESS,"
APPARENTLY FOR THE REASON THAT, SINCE THOSE INVOKING STATE DEATH
STATUTES MUST SOMETIMES BEAR THE BURDEN OF COMPARATIVELY UNFAVORABLE
PROVISIONS, IT IS ONLY FAIR THAT, WHEN MORE FAVORABLE PROVISIONS
OBTAIN, THEY BE ABLE TO ENJOY THE BENEFITS OF SUCH RULES.  BUT, AS THE
COURT POINTS OUT, "WE ARE CONCERNED WITH CONSTITUTIONAL ADJUDICATION,
NOT WITH REACHING PARTICULAR RESULTS IN GIVEN CASES."  SUCH
UNEVENHANDEDNESS AS THERE MAY BE IN THIS AREA IS THE CONSEQUENCE OF THE
RULE OF THE HARRISBURG, TO WHICH THIS COURT HAS STEADFASTLY ADHERED FOR
NEARLY 75 YEARS, (FN18) AND WHICH CONGRESS, WHEN IT ENACTED THE DEATH
ON THE HIGH SEAS ACT, SAW FIT TO CHANGE ONLY IN A LIMITED WAY.  SEE THE
TUNGUS, SUPRA, AT 592-593.  WHEN FEDERAL LAW PERMITS THE APPLICATION OF
STATE DEATH ACTS, THOSE ON WHOM THE STATE STATUTE CONFERS A RIGHT OF
ACTION MAY ESCAPE THE HARSH CONSEQUENCES OF THAT RULE.  THOSE WHOM THE
STATE LAW HAS DECLINED TO BENEFIT ARE LEFT AS THEY WERE.  CERTAINLY WE
SHOULD NOT, IN THE NAME OF "EVENHANDEDNESS," PERMIT A STATE TO EXCEED
CONSTITUTIONAL LIMITATIONS MERELY BECAUSE IN SOME INSTANCES IT MAY HAVE
CHOSEN NOT TO DO ALL IT MIGHT UNDER THE CONSTITUTION.  (FN19) 

I WOULD AFFIRM. 

FN1  THE COURT IN THE TUNGUS WAS CONCERNED ONLY WITH POSSIBLE
LIMITATIONS IMPOSED BY NEW JERSEY LAW ON THE ASSERTION OF CAUSES OF
ACTION FOR UNSEAWORTHINESS AND NEGLIGENCE, BOTH OF WHICH THE COURT,
ACCEPTING THE VIEWS OF THE COURT OF APPEALS, CONSIDERED WERE EMBRACED
BY THE STATE WRONGFUL DEATH STATUTE.  THE CASE DID NOT PRESENT THE
QUESTION WHETHER SUCH A STATUTE MIGHT CONFER ENLARGED SUBSTANTIVE
RIGHTS NOT AFFORDED BY MARITIME LAW.    FN2  I AGREE WITH THE COURT
THAT THE PROVISION OF THE FEDERAL TORT CLAIMS ACT RENDERING THE UNITED
STATES LIABLE IN ACCORDANCE WITH THE "LAW OF THE PLACE WHERE THE ACT OR
OMISSION OCCURRED," 28 U.S.C. SEC. 1346(B), MANIFESTS NO INTENTION TO
CONVERT A MARITIME TORT INTO A LAND TORT, AND THAT THIS CASE MUST BE
TREATED AS ONE FALLING WITHIN MARITIME JURISDICTION.  SEE P. 318, AND
NOTE 7, ANTE. 

FN3  WHILE DISCUSSIONS OF THE CURRENT MARITIME SUPREMACY DOCTRINE
USUALLY COMMENCE WITH SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, THE
CHELENTIS CASE SEEMS A MORE APPROPRIATE POINT OF BEGINNING IN THIS
INSTANCE.  JENSEN WAS OF COURSE A WORKMEN'S COMPENSATION CASE, AND
MIGHT BE THOUGHT TO HAVE RESTED ON THE VIEW THAT THE "COMMON LAW
REMEDY" PRESERVED BY THE "SAVING CLAUSE" DID NOT EMBRACE THE
COMPENSATION REMEDY, "OF A CHARACTER WHOLLY UNKNOWN TO THE COMMON
LAW."  244 U.S., AT 218.  IT REMAINED FOR LATER CASES TO ESTABLISH THAT
JENSEN REFLECTED A BROADER PRINCIPLE. 

IT SHOULD BE ADDED THAT, WHILE THE RESULTS IN JENSEN AND SOME OF ITS
PROGENY HAVE BEEN WIDELY CRITICIZED, THERE IS GENERAL RECOGNITION OF
THE VALIDITY OF ITS PREMISE.  AS GILMORE AND BLACK PUT IT, THE LAW OF
ADMIRALTY, SEC. 1-17:  "IF THERE IS ANY SENSE AT ALL IN MAKING MARITIME
LAW A FEDERAL SUBJECT, THEN THERE MUST BE SOME LIMIT SET TO THE POWER
OF THE STATES TO INTERFERE IN THE FIELD OF ITS WORKING."  SEE ALSO
STEVENS, ERIE R.R. V. TOMPKINS AND THE UNIFORM GENERAL MARITIME LAW, 64
HARV. L. REV. 246. 

FN4  THE CLASSIC FORMULATION IS THAT FOUND IN THE OSCEOLA, 189 U.S.
158, 175. 

FN5  PROVIDING THAT "SEAMEN HAVING COMMAND SHALL NOT BE HELD TO BE
FELLOW-SERVANTS WITH THOSE UNDER THEIR AUTHORITY." 

FN6  SEE THE ACCOUNT IN GILMORE AND BLACK, OP. CIT., SUPRA, 376-377. 

FN7  SEE SOCONY-VACUUM CO. V. SMITH, 305 U.S. 424; BEADLE V.
SPENCER, 298 U.S. 124; THE ARIZONA V. ANELICH, 298 U.S. 110. 

FN8  THE CAUSE OF ACTION FOR NEGLIGENCE DID NOT OF COURSE REST ON THE
JONES ACT, SINCE HAWN WAS NOT A SEAMAN, BUT ON THE TRADITIONAL
ADMIRALTY DOCTRINE IMPOSING ON A SHIPOWNER A DUTY TO USE REASONABLE
CARE TO AVOID INJURING AN INVITEE.  SEE, E.G., THE MAX MORRIS, 137 U.S.
1. 

FN9  NOTHING IN CALDAROLA V. ECKERT, 332 U.S. 155, MAY PROPERLY BE
TAKEN AS IMPINGING UPON THE CONTINUED VITALITY OF THE SUPREMACY
PRINCIPLE AS ENUNCIATED IN THE CHELENTIS CASE AND ITS SUCCESSORS.  CF.
STEVENS, ERIE R.R. V. TOMPKINS AND THE UNIFORM GENERAL MARITIME LAW, 64
HARV. L. REV. 246, 263.  NOR HAS THIS DOCTRINE OTHERWISE BECOME DILUTED
AS SEEMS TO BE SUGGESTED BY HART AND WECHSLER, THE FEDERAL COURTS AND
THE FEDERAL SYSTEM, 482-483.  ANY DOUBTS WHICH MIGHT HAVE EXISTED ON
THIS SCORE WERE "EFFECTIVELY LAID TO REST BY POPE & TALBOT, INC., V.
HAWN, 346 U.S. 406, 410-411."  KERMAREC V. COMPAGNIE GENERALE, SUPRA,
AT 628. 

FN10  PRIOR TO THE DECISION IN THE HARRISBURG, SUPRA, THE COURT HAD
REJECTED CLAIMS THAT MARITIME TORT ACTIONS IN STATE COURTS BASED UPON A
LOCAL DEATH STATUTE WERE NOT WITHIN THE "SAVING CLAUSE," STEAMBOAT CO.
V. CHASE, 16 WALL.  522, OR WERE OFFENSIVE TO THE COMMERCE CLAUSE,
SHERLOCK V. ALLING, 93 U.S. 99, 102-103.  SUBSEQUENTLY, IN THE
HAMILTON, SUPRA, IT WAS, WITH LITTLE DIFFICULTY, HELD THAT A PLAINTIFF
COULD ASSERT IN ADMIRALTY A RIGHT OF ACTION GROUNDED ON A STATE
WRONGFUL DEATH ACT.   SEE ALSO LA BOURGOGNE, 210 U.S. 95, 138.  JENSEN
RECOGNIZED THE DOCTRINE OF THESE CASES, 244 U.S., AT 216, AND IN
WESTERN FUEL CO. V. GARCIA, 257 U.S. 233, THE POST-JENSEN COURT
EXPRESSLY HELD THAT THE RULE OF THE HAMILTON HAD NOT BEEN DISPLACED. 
SEE ALSO GREAT LAKES CO. V. KIEREJEWSKI, 261 U.S. 479; SPENCER KELLOGG
CO. V. HICKS, 285 U.S. 502, 512-513. 

THE SIGNIFICANCE OF SUCH EARLY CASES AS CHASE AND ALLING IN THE
HISTORY OF THE UNIFORMITY PRINCIPLE HAS NOW BECOME LARGELY ACADEMIC, IN
VIEW OF THE TWENTIETH CENTURY DEVELOPMENTS. 

FN11  THIS ANALYSIS LEAVES UNEXPLAINED THE SENSE IN WHICH WRONGFUL
DEATH ACTIONS ARE LOCAL.  THAT ATTRIBUTE OBTAINS IRRESPECTIVE OF THE
CHARACTER OF THE DECEDENT'S ACTIVITIES, ALTHOUGH THE "MARITIME BUT
LOCAL" DOCTRINE GENERALLY TURNED ON THE NUANCES OF EXACTLY THAT
ELEMENT.  E.G., GRANT SMITH-PORTER CO. V. ROHDE, 257 U.S. 469; SEE
ROBINSON, ADMIRALTY, 103; 2 LARSON, LAW OF WORKMEN'S COMPENSATION, SEC.
89.22.  PUT ANOTHER WAY, AN ACTION FOR WRONGFUL DEATH IS "LOCAL"
ALTHOUGH, HAD THE VICTIM LIVED, HIS ACTION FOR DAMAGES WOULD, BY REASON
OF THE NATURE OF HIS ACTIVITIES, NOT HAVE BEEN "LOCAL."  THUS, IT IS
SOME CHARACTERISTIC OF A WRONGFUL DEATH ACTION ITSELF WHICH PERMITS
APPLICATION OF STATE LAW. 

FN12  THE DECISION WAS AFFIRMED AS TO THIS GROUND SUB NOM.  THE
TRANSFER NO. 4, 61 F. 364, 367-368, CERTIFICATE DISMISSED ON MOTION SUB
NOM. MCCULLOUGH V. NEW YORK, N.H.&H.R. CO., 163 U.S. 693. 

FN13  THIS REASONING HAS FOUND REFLECTION IN MARITIME CASES OUTSIDE
THE REALM OF WRONGFUL DEATH ACTIONS.  JUST V. CHAMBERS, 312 U.S. 383,
PERMITTED THE APPLICATION TO A MARITIME TORT OF A STATE STATUTE
PROVIDING FOR SURVIVAL OF AN ACTION AGAINST A DECEASED TORTFEASOR. 
HERE, TOO, DECEDENT HAD BREACHED A FEDERAL DUTY FOR WHICH, HAD HE
LIVED, HE WOULD HAVE HAD TO ANSWER.  THE STATE'S DECISION TO PROTECT
PLAINTIFFS FROM LOSS IN THIS WAY REFLECTED ONLY LOCAL INTERESTS, AND
MADE NO ENCROACHMENT ON MARITIME INTERESTS. 

RED CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109, A CONTRACT
ACTION, INVOLVED THE QUESTION OF THE VALIDITY, AS APPLIED TO A MARITIME
CONTRACT, OF A STATE STATUTE MAKING AGREEMENTS TO ARBITRATE
SPECIFICALLY ENFORCEABLE.  THE DECISION PROCEEDED FROM THE PREMISE THAT
ARBITRATION AGREEMENTS WERE VALID OBLIGATIONS UNDER MARITIME LAW, AND
THAT THE STATUTE MERELY ADDED THE REMEDY OF SPECIFIC PERFORMANCE TO THE
TRADITIONAL REMEDY OF DAMAGES.  SEE, ID., AT 123-125.  WHILE THERE THE
STATE INTEREST IN ENFORCING SUCH AGREEMENTS WAS NOT AS PECULIARLY LOCAL
AS IS TRUE OF WRONGFUL DEATH CASES, THE FACT THAT ADMIRALTY
ACKNOWLEDGED THE VALIDITY OF ARBITRATION CLAUSES IN CONTRACTS, AND
RECOGNIZED A DUTY TO LIVE UP TO THEM, RENDERED THE INTRUSION INTO
FEDERAL INTERESTS SO MINIMAL AS TO JUSTIFY THE RESULT. 

FN14  IT MAY BE THAT THE EXISTENCE OF AN OVERRIDING FEDERAL INTEREST
IS NOT TO BE INFERRED SOLELY FROM THE FACT THAT THE TORT IS MARITIME,
IN THE SENSE THAT ADMIRALTY HAS JURISDICTION OVER IT. CASES MAY BE PUT
IN WHICH THE CONNECTION WITH MARITIME ACTIVITIES IS SO REMOTE OR
FORTUITOUS THAT STATE LAW SHOULD READILY BE ACCEPTED BY ADMIRALTY WHERE
IT IS OTHERWISE APPLICABLE.  THE COURT DOES NOT PURPORT TO TREAT THIS
CASE ON ANY SUCH BASIS. 

FN15  SEE, IN THIS COURT:  THE HARRISBURG, SUPRA ("NEGLIGENCE" UNDER
MASSACHUSETTS AND PENNSYLVANIA DEATH STATUTES); THE HAMILTON, SUPRA
("NEGLIGENCE" UNDER DELAWARE WRONGFUL DEATH STATUTE); WESTERN FUEL V.
GARCIA, SUPRA ("NEGLIGENCE" UNDER CALIFORNIA WRONGFUL DEATH STATUTE);
LA BOURGOGNE, 210 U.S. 95 ("FAULT" UNDER FRENCH WRONGFUL DEATH LAW);
LEVINSON V. DEUPREE, 345 U.S. 648 ("NEGLIGENCE OR WRONGFUL ACT" UNDER
KENTUCKY WRONGFUL DEATH STATUTE); THE TUNGUS V. SKOVGAARD, SUPRA
("WRONGFUL ACT, NEGLECT OR DEFAULT" UNDER NEW JERSEY WRONGFUL DEATH
STATUTE); UNITED PILOTS ASSN. V. HALECKI, 358 U.S. 613 (SAME NEW JERSEY
STATUTE AS IN THE TUNGUS). 

SEE, IN THE LOWER FEDERAL COURTS:  CURTIS V. A. GARCIA Y CIA., 241
F.2D 30 ("UNLAWFUL VIOLENCE OR NEGLIGENCE" UNDER PENNSYLVANIA WRONGFUL
DEATH STATUTE); THE H.S., INC., NO. 72, 130 F.2D 341 ("WRONGFUL ACT,
NEGLECT OR DEFAULT" UNDER NEW JERSEY WRONGFUL DEATH STATUTE);
KLINGSEISEN V. COSTANZO TRANSP.  CO., 101 F.2D 902 (SAME PENNSYLVANIA
WRONGFUL DEATH STATUTE AS IN THE CURTIS CASE); GRAHAM V. A. LUSI, LTD.,
206 F.2D 223 ("WRONGFUL ACT, NEGLIGENCE, CARELESSNESS OR DEFAULT" UNDER
FLORIDA WRONGFUL DEATH STATUTE); TRUELSON V. WHITNEY & BODDEN SHIPPING
CO., 10 F.2D 412 ("WRONGFUL ACT, NEGLECT, CARELESSNESS, UNSKILFULNESS,
OR DEFAULT" UNDER TEXAS WRONGFUL DEATH STATUTE); QUINETTE V. BISSO, 136
F. 825 ("FAULT" UNDER LOUISIANA WRONGFUL DEATH STATUTE); LEE V. PURE
OIL CO., 218 F.2D 711 ("WRONGFUL ACT, OMISSION, OR KILLING" UNDER
TENNESSEE WRONGFUL DEATH STATUTE); FEIGE V. HURLEY, 89 F.2D 575
("NEGLIGENCE OR WRONGFUL ACT" UNDER KENTUCKY WRONGFUL DEATH STATUTE);
HOLLEY V. THE MANFRED STANSFIELD, 269 F.2D 317 ("WRONGFUL ACT, NEGLECT,
OR DEFAULT" UNDER VIRGINIA WRONGFUL DEATH STATUTE). 

THUS, IN NOT ONE OF THE FOREGOING CASES, EITHER HERE OR IN THE LOWER
COURTS, DID THE STANDARD OF LIABILITY UNDER THE RESPECTIVE STATE LAWS
EXCEED THE STANDARD OF LIABILITY IN ADMIRALTY HAD THE INJURY NOT
RESULTED IN DEATH. 

FN16  SEE ALSO THE H.S., INC., NO. 72, SUPRA, WHERE RECOVERY RESTED
ON THE APPELLATE COURT'S DECISION THAT THE STATE WHOSE WRONGFUL DEATH
STATUTE WAS SOUGHT TO BE MADE THE BASIS OF RECOVERY IMPOSED LIABILITY
UPON THE DEFENDANT, IN THE CIRCUMSTANCES THERE PRESENTED, FOR THE TORT
OF ITS EMPLOYEE.  THERE WAS NO SUGGESTION THAT APPLICATION OF
SUBSTANTIVE FEDERAL MARITIME STANDARDS WOULD HAVE LED TO A DIFFERENT
RESULT. 

THE REMAINING LOWER COURT CASES RELIED ON BY THE COURT, AND REFERRED
TO IN NOTE 15, SUPRA, INVOLVED THE SAME ISSUES AS THOSE PRESENTED IN
THE HALECKI AND TUNGUS CASES. 

FN17  IN SUCH A CASE, OF COURSE, NOT ONLY WOULD "THE ADMIRALTY  ...
DECLINE TO ENFORCE," ANTE, P. 320, THE CHALLENGED PROVISION, BUT
FEDERAL LAW WOULD INHIBIT A COMMON-LAW COURT, STATE OR FEDERAL, FROM
APPLYING IT TO A MARITIME TORT ACTION. 

FN18  SEE CASES CITED, NOTE 15, SUPRA. 

FN19  IT OUGHT NOT TO HAVE BEEN NECESSARY TO SAY EXPLICITLY THAT THIS
OPINION RESTS UPON EVENHANDED APPLICATION OF A RULE OF CONSTITUTIONAL
LAW WHICH PERMITS THE ENFORCEMENT OF STATE-AFFORDED SUBSTANTIVE RIGHTS
UNDER STATE WRONGFUL DEATH STATUTES ONLY SO LONG AS SUCH RIGHTS DO NOT
OFFEND THOSE ESTABLISHED BY THE MARITIME LAW.  FAITHFUL ADHERENCE TO
THAT RULE OF COURSE MAY LEAD TO DIFFERENT RESULTS IN DIFFERENT
SITUATIONS, DEPENDING UPON THE EXTENT OF THE RIGHTS GIVEN BY STATE
LAW.  IN THE TUNGUS, THE RIGHTS ACCORDED BY STATE LAW WERE PERMITTED TO
PREVAIL BECAUSE THEY WERE NOT OFFENSIVE TO THOSE RECOGNIZED BY MARITIME
LAW.  HERE THE STATE-CREATED RIGHT CANNOT PREVAIL BECAUSE IT IS FLATLY
OPPOSED TO THAT EXISTING UNDER MARITIME LAW.  IN SHORT, THESE OPPOSITE
RESULTS ARE NOT ATTRIBUTABLE TO ANY DIFFERENCES IN THE CONSTITUTIONAL
RULE APPLICABLE IN THE TWO CASES - A RULE WHICH REMAINS THE SAME IN ALL
WRONGFUL DEATH CASES - BUT TO DIFFERENCES IN THE CHARACTER OF THE
SUBSTANTIVE RIGHTS AFFORDED BY THE TWO WRONGFUL DEATH STATUTES
INVOLVED. 

MEMORANDUM OF MR. JUSTICE WHITTAKER. 

EXCEPT FOR ITS IMPLICATION, OR CONCLUSION IF IT MAY BE INTENDED TO BE
SUCH, THAT MARITIME TORTS COMMITTED ON THE NAVIGABLE WATERS OF A STATE
WHICH RESULT IN DEATH ARE GOVERNED BY THE GENERAL SUBSTANTIVE TORT LAW
OF THE STATE - NOT BY THE GENERAL FEDERAL MARITIME LAW AS REMEDIALLY
SUPPLEMENTED ONLY BY THE STATE'S WRONGFUL DEATH ACT - WHICH CONFLICTS
WITH MY VIEWS AS EXPRESSED IN MY DISSENT IN GOETT V. UNION CARBIDE
CORP., DECIDED TODAY, POST, P. 345, I JOIN MY BROTHER HARLAN'S
DISSENT. 
..END :









GOETT V. UNION CARBIDE CORP. 361 U.S. 340 


NO. 3.  ARGUED NOVEMBER 12, 1959.  - DECIDED JANUARY 18, 1960.  - 256
F.2D 449, JUDGMENT VACATED AND CAUSE REMANDED. 


BASING HER CLAIM ALTERNATIVELY ON UNSEAWORTHINESS AND ON NEGLIGENCE,
PETITIONER BROUGHT THIS LIBEL IN ADMIRALTY TO RECOVER UNDER THE WEST
VIRGINIA WRONGFUL DEATH ACT FROM THE OWNER OF A RIVER BARGE FOR THE
DEATH OF AN EMPLOYEE OF AN INDEPENDENT CONTRACTOR ENGAGED IN REPAIRING
THE BARGE, WHO FELL OFF THE BARGE AND DROWNED IN NAVIGABLE WATERS IN
WEST VIRGINIA.  THE DISTRICT COURT FOUND THAT THE VESSEL WAS
UNSEAWORTHY AND THAT THE BARGE OWNER WAS NEGLIGENT.  BASING LIABILITY
ON NEGLIGENCE, IT AWARDED PETITIONER THE MAXIMUM AMOUNT OF DAMAGES
ALLOWABLE UNDER THE WEST VIRGINIA WRONGFUL DEATH ACT.  THE COURT OF
APPEALS REVERSED THE DISTRICT COURT'S FINDING OF NEGLIGENCE AND HELD
THAT THE VESSEL WAS NOT UNSEAWORTHY AND THAT THE DECEDENT WAS NOT A
PERSON TO WHOM THE WARRANTY OF SEAWORTHINESS WAS OWED; BUT IT DID NOT
PASS ON THE QUESTION WHETHER UNSEAWORTHINESS WOULD IN ANY EVENT BE
AVAILABLE AS A GROUND FOR RECOVERY IN A WEST VIRGINIA WRONGFUL DEATH
ACTION INVOLVING A MARITIME TORT.  HELD:  THE JUDGMENT IS VACATED AND
THE CAUSE IS REMANDED TO THE COURT OF APPEALS TO DETERMINE:  (A)
WHETHER THE WEST VIRGINIA WRONGFUL DEATH ACT, AS TO THIS MARITIME TORT,
EMPLOYS THE WEST VIRGINIA OR THE GENERAL MARITIME LAW CONCEPT OF
NEGLIGENCE; (B) WHETHER, IN THE LIGHT OF THAT DETERMINATION, THE
DISTRICT COURT'S FINDING AS TO NEGLIGENCE IS CORRECT UNDER THE PROPER
SUBSTANTIVE LAW; AND (C) WHETHER THE WEST VIRGINIA WRONGFUL DEATH ACT
INCORPORATES THE DOCTRINE OF UNSEAWORTHINESS IN DEATH ACTIONS INVOLVING
MARITIME TORTS.  PP. 341-344. 

GOETT, ADMINISTRATRIX, V. UNION CARBIDE CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

PER CURIAM. 

THIS WAS A LIBEL IN ADMIRALTY BROUGHT AGAINST RESPONDENT UNION
CARBIDE CORPORATION BY PETITIONER, THE ADMINISTRATRIX OF MARVIN PAUL
GOETT.  GOETT HAD BEEN AN EMPLOYEE OF RESPONDENT AMHERST BARGE COMPANY,
WHICH WAS ENGAGED IN REPAIRING A RIVER BARGE OWNED BY UNION.  THE
DECEDENT WAS WORKING ON THE BARGE WHEN HE FELL OFF INTO THE WATERS OF
THE KANAWHA RIVER, AND, AFTER FRUITLESS EFFORTS AT RESCUE, WAS
DROWNED.  THE THEORY OF THE LIBEL WAS THAT, ALTERNATIVELY, UNION WAS
NEGLIGENT IN TURNING OVER THE BARGE TO AMHERST WITHOUT ITS BEING
EQUIPPED WITH RESCUE EQUIPMENT, OR THAT THE VESSEL WAS UNSEAWORTHY
WITHOUT SUCH EQUIPMENT; AND THAT THE LACK OF RESCUE EQUIPMENT CAUSED
THE DECEDENT'S DEATH.  THE ACCIDENT HAD TAKEN PLACE IN WEST VIRGINIA
WATERS AND THAT STATE'S WRONGFUL DEATH ACT WAS RELIED UPON.  THE
DISTRICT COURT FOUND THAT THE VESSEL WAS IN FACT UNSEAWORTHY AND THAT
UNION WAS NEGLIGENT IN THE RESPECT CHARGED, CAUSING THE DEATH OF
DECEDENT, AND THAT THE DECEDENT WAS NOT SHOWN TO HAVE BEEN GUILTY OF
CONTRIBUTORY NEGLIGENCE OR TO HAVE ASSUMED THE RISK.  THE DISTRICT
COURT BOTTOMED UNION'S LIABILITY ON NEGLIGENCE, AND AWARDED PETITIONER
$20,000 IN DAMAGES, THE MAXIMUM ALLOWABLE UNDER THE WEST VIRGINIA ACT,
THOUGH FINDING THAT THE ACTUAL DAMAGES WERE SUBSTANTIALLY HIGHER.  ON
UNION'S APPEAL TO THE COURT OF APPEALS, THE JUDGMENT WAS REVERSED.  256
F.2D 449. 

THE COURT OF APPEALS HELD THAT, AS A MATTER OF LAW, UNION OWED NO
DUTY TO THE EMPLOYEES OF AMHERST ONCE THE VESSEL HAD BEEN TURNED OVER
TO THE LATTER.  IT ACCORDINGLY REVERSED THE DISTRICT COURT'S FINDING OF
NEGLIGENCE.  IT FURTHER HELD, CONTRARY TO THE DISTRICT COURT, THAT THE
VESSEL WAS NOT UNSEAWORTHY AT THE TIME OF THE ACCIDENT, AND THAT IN ANY
EVENT THE DECEDENT WAS NOT A PERSON TO WHOM THE WARRANTY OF
SEAWORTHINESS WAS OWED.  IN THE LIGHT OF THIS DETERMINATION, IT DID NOT
PASS ON THE QUESTION WHETHER UNSEAWORTHINESS WOULD BE IN ANY EVENT
AVAILABLE AS A GROUND FOR RECOVERY IN A WEST VIRGINIA WRONGFUL DEATH
ACTION INVOLVING A MARITIME TORT.  WE GRANTED CERTIORARI.  359 U.S.
923. 

THIS CASE WAS DECIDED IN THE LOWER COURTS BEFORE THE DECISION OF THIS
COURT IN THE TUNGUS V. SKOVGAARD, 358 U.S. 588, WHERE IT WAS HELD THAT
IT WAS A QUESTION OF STATE LAW AS TO WHAT IS THE PROPER SUBSTANTIVE LAW
TO BE APPLIED TO MARITIME TORTS WITHIN THE TERRITORIAL JURISDICTIONS OF
THE STATES IN WRONGFUL DEATH CASES.  SEE HESS V. UNITED STATES, ANTE,
P. 314.  UNDER THIS HOLDING, IN A MARITIME TORT DEATH CASE, THE STATE
MIGHT APPLY THE SUBSTANTIVE LAW GENERALLY APPLICABLE TO WRONGFUL DEATH
CASES WITHIN ITS TERRITORY, OR IT MIGHT CHOOSE TO INCORPORATE THE
GENERAL MARITIME LAW'S CONCEPTS OF UNSEAWORTHINESS OR NEGLIGENCE. 
(FN1)  HERE THE COURT OF APPEALS DID NOT DECIDE WHICH STANDARD THE WEST
VIRGINIA ACT ADOPTED.  IT DID NOT ARTICULATE ON WHAT BASIS IT WAS
APPLYING FEDERAL LAW IF IN FACT IT WAS; THERE IS NO INTIMATION THAT IT
BELIEVED THE WEST VIRGINIA ACT INCORPORATED THE MARITIME LAW'S
NEGLIGENCE STANDARD, AND IN FACT IT EXPRESSLY LEFT OPEN THE QUESTION
WHETHER THAT ACT INCORPORATED THE MARITIME STANDARD OF SEAWORTHINESS. 
IT SEEMS MORE LIKELY TO US TO HAVE PASSED ON THE NEGLIGENCE ISSUE AS A
MATTER OF FEDERAL MARITIME LAW; IT CITED ONLY CASES APPLYING THE
GENERAL MARITIME LAW'S AND THE JONES ACT'S CONCEPTS OF NEGLIGENCE, AND
GENERAL TREATISES; NO WEST VIRGINIA AUTHORITY WAS RELIED UPON.  (FN2)
THE LEAST THAT CAN BE SAID IS THAT IT IS HIGHLY DOUBTFUL (FN3) WHICH
LAW THE COURT OF APPEALS APPLIED; (FN4) AND SO IN THE ABSENCE OF ANY
EXPRESSION BY IT OF WHICH STANDARD THE WEST VIRGINIA ACT ADOPTED, WE DO
NOT BELIEVE WE CAN PERMIT ITS JUDGMENT TO STAND AFTER OUR INTERVENING
DECISION IN THE TUNGUS. 

ACCORDINGLY, SO THAT THE COURT OF APPEALS, WHICH IS CLOSER THAN WE TO
MATTERS OF LOCAL LAW, MAY PASS UPON THE QUESTIONS OF WEST VIRGINIA LAW
INVOLVED IN THE LIGHT OF THIS COURT'S HOLDING IN THE TUNGUS, WE VACATE
ITS JUDGMENT AND REMAND THE CAUSE TO IT TO DETERMINE: (A) WHETHER THE
WEST VIRGINIA WRONGFUL DEATH ACT, AS TO THIS MARITIME TORT, EMPLOYS THE
WEST VIRGINIA OR THE GENERAL MARITIME LAW CONCEPT OF NEGLIGENCE; AND,
IN THE LIGHT OF ITS DETERMINATION, (B) WHETHER THE DISTRICT JUDGE'S
FINDING AS TO NEGLIGENCE IS CORRECT UNDER THE PROPER SUBSTANTIVE LAW. 
TO FACILITATE OUR DISCRETIONARY REVIEW OF THE COURT OF APPEALS'
FINDINGS AS TO UNSEAWORTHINESS, IT SHOULD ALSO DETERMINE WHETHER THE
WEST VIRGINIA ACT INCORPORATES THIS STANDARD OF THE GENERAL MARITIME
LAW IN DEATH ACTIONS INVOLVING MARITIME TORTS.  CF. BARR V. MATTEO, 355
U.S. 171.  (FN5)  VACATED AND REMANDED. 

FN1  FOR EXAMPLES OF THE GENERAL MARITIME LAW'S CONCEPT OF
NEGLIGENCE, SEE KERMAREC V. COMPAGNIE GENERALE TRANSATLANTIQUE, 358
U.S. 625; POPE & TALBOT, INC., V. HAWN, 346 U.S. 406, 409; THE MAX
MORRIS, 137 U.S. 1, 14-15. 

FN2  THE RESPONDENT HERE CITES WEST VIRGINIA PRECEDENTS IN AN EFFORT
TO SUSTAIN THE COURT OF APPEALS' DETERMINATION. 

FN3  THE VIEWS OF THE DISSENTING OPINIONS HERE CONFIRM US IN OUR
DOUBTS.  SOME OF THE DISSENTS TAKE THE VIEW THAT THE COURT OF APPEALS
SHOULD BE AFFIRMED BECAUSE IT UNDOUBTEDLY DECIDED THE POINT AS A MATTER
OF STATE LAW, WHILE ANOTHER IS OF THE VIEW THAT THE COURT OF APPEALS
SHOULD BE AFFIRMED BECAUSE IT MADE SUFFICIENTLY CLEAR THAT IT DECIDED
THE POINT AS A MATTER OF FEDERAL LAW.  OUR VIEWS LIE BETWEEN THESE
TWO. 

FN4  WHILE THE COURT OF APPEALS DECLARED THAT "THE RIGHT TO MAINTAIN
SUCH A SUIT CAN BE ENFORCED IN ADMIRALTY ONLY IN ACCORDANCE WITH THE
SUBSTANTIVE LAW OF THE STATE WHOSE STATUTE IS BEING ADOPTED," 256 F.2D,
AT 453, THIS DISCUSSION SEEMS TO US PROBABLY TO HAVE BEEN IN THE
CONTEXT OF THE MONETARY LIMITATION OF THE ACT.  CERTAINLY THERE WAS NO
SPECIFIC IDENTIFICATION OF THIS STATEMENT WITH THE DISCUSSION OF
WHETHER THE NEGLIGENCE FINDING WAS JUSTIFIED.  AND IF THE STATEMENT IS
TAKEN TO MEAN THAT A STATE CANNOT ADOPT THE MARITIME STANDARD, IT IS
NOT CORRECT. 

FN5  THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND
MR. JUSTICE BRENNAN JOIN THIS OPINION, BUT SOLELY UNDER COMPULSION OF
THE COURT'S RULING IN THE TUNGUS V. SKOVGAARD, 358 U.S. 588.  THEY
BELIEVE THAT AS LONG AS THE VIEW OF THE LAW REPRESENTED BY THAT RULING
PREVAILS IN THE COURT, IT SHOULD BE APPLIED EVENHANDEDLY, DESPITE THE
CONTRARY VIEWS OF SOME OF THOSE ORIGINALLY JOINING IT THAT STATE LAW IS
THE MEASURE OF RECOVERY WHEN IT HELPS THE DEFENDANT, AS IN THE TUNGUS,
AND IS NOT THE MEASURE OF RECOVERY WHEN IT MILITATES AGAINST THE
DEFENDANT, AS IN HESS V. UNITED STATES, ANTE, P. 314.  HOWEVER, THEY
NOTE THEIR CONTINUED DISAGREEMENT WITH THE RULING IN THE TUNGUS, AND
RESERVE THEIR POSITION AS TO WHETHER IT SHOULD BE OVERRULED,
PARTICULARLY IN THE LIGHT OF THE CONTROVERSY APPLICATION OF IT HAS
ENGENDERED AMONG ITS ORIGINAL SUBSCRIBERS.  SEE THE VARIOUS SEPARATE
OPINIONS IN THIS CASE AND IN HESS V. UNITED STATES, SUPRA. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

I DISSENT FROM THE COURT'S DISPOSITION OF THIS CASE ON THE FOLLOWING
GROUNDS: 

FIRST.  FOR REASONS ELABORATED IN MY BROTHER STEWART'S DISSENTING
OPINION, THERE IS NO REASONABLE BASIS FOR CONCLUDING THAT THE COURT OF
APPEALS' DISPOSITION OF THE NEGLIGENCE CAUSE OF ACTION DID NOT REST
UPON STATE SUBSTANTIVE LAW, WHICH IN MARITIME WRONGFUL DEATH ACTIONS
CONTROLS, THE TUNGUS V. SKOVGAARD, 358 U.S. 588, IF, AS I EXPRESSED IN
MY DISSENTING OPINION IN HESS V. UNITED STATES, ANTE, P. 322, IT DOES
NOT IMPOSE DUTIES GREATER THAN THOSE CREATED BY MARITIME SUBSTANTIVE
LAW. 

IN ANY EVENT, THERE BEING NO SUGGESTION THAT THE STATE STANDARDS OF
DUTY DIFFER IN ANY WAY FROM THOSE OBTAINING UNDER MARITIME LAW, THE
REMAND OF THE NEGLIGENCE CAUSE OF ACTION TO THE COURT OF APPEALS SEEMS
TO ME TO BE A NEEDLESS AND THEREFORE WASTEFUL PROCEDURE. 

SECOND.  AS TO THE UNSEAWORTHINESS CAUSE OF ACTION, NO ONE SUGGESTS
THAT WEST VIRGINIA HAS SUCH A DOCTRINE OF ITS OWN.  THE COURT OF
APPEALS DELIBERATELY DECIDED (256 F.2D, AT 454) THAT IT NEED NOT REACH
THE DIFFICULT QUESTION OF WHETHER THE WEST VIRGINIA WRONGFUL DEATH
STATUTE EMBRACED A CAUSE OF ACTION FOR UNSEAWORTHINESS BASED ON FEDERAL
CONCEPTS, BECAUSE IT FOUND THAT IN ANY EVENT, UNDER FEDERAL LAW, THE
VESSEL WAS NOT UNSEAWORTHY, AND THAT THE PETITIONER WAS NOT ONE TO WHOM
THE DUTY TO PROVIDE A SEAWORTHY SHIP WAS OWING. 

IN RESTING ITS DECISION ON THESE GROUNDS THE COURT OF APPEALS
EXERCISED THE TRADITIONAL DISCRETION OF ANY COURT TO CHOOSE WHAT
APPEARS TO IT A NARROWER AND CLEARER GROUND OF DECISION IN PREFERENCE
TO A BROADER AND MORE CONTROVERTED ONE.  THE COURT DOES NOT SUGGEST
THAT THE LIMITS OF THIS DISCRETION WERE EXCEEDED IN THIS INSTANCE.  CF.
BARR V. MATTEO, 355 U.S. 171.  IN MY VIEW WE CANNOT PROPERLY REQUIRE
THE COURT OF APPEALS TO DECIDE A QUESTION WHICH IT INTENTIONALLY AND
SENSIBLY LEFT OPEN UNLESS WE FIRST REVERSE THAT COURT ON THE ISSUES
WHICH IT DID DECIDE.  THIS THE COURT DOES NOT DO. HENCE, I BELIEVE
THERE IS NO JUSTIFICATION FOR REMANDING THE CASE ON THIS SCORE. 

MR. JUSTICE WHITTAKER, DISSENTING. 

I AM PERSUADED THAT THE COURT OF APPEALS HAS MADE SUFFICIENTLY CLEAR
THAT IT THOUGHT THIS DIVERSITY, ADMIRALTY, DEATH CASE WAS GOVERNED BY
THE GENERAL MARITIME LAW, AS REMEDIALLY SUPPLEMENTED BY THE WEST
VIRGINIA WRONGFUL DEATH STATUTE, AND PROPERLY DECIDED IT ON THAT
BASIS. 

THE COURT'S OPINION SAYS THAT THE TUNGUS V. SKOVGAARD, 358 U.S. 588,
"DECIDED THAT IT WAS A QUESTION OF STATE LAW AS TO WHAT IS THE PROPER
SUBSTANTIVE LAW TO BE APPLIED TO MARITIME TORTS WITHIN THE TERRITORIAL
JURISDICTION OF THE STATES IN WRONGFUL DEATH CASES AND THAT UNDER THIS
HOLDING, IN A MARITIME TORT DEATH CASE, THE STATE MIGHT APPLY THE
SUBSTANTIVE LAW GENERALLY APPLICABLE TO WRONGFUL DEATH CASES WITHIN ITS
TERRITORY, OR IT MIGHT CHOOSE TO INCORPORATE THE GENERAL MARITIME LAW'S
CONCEPTS OF UNSEAWORTHINESS OR NEGLIGENCE."  I DO NOT UNDERSTAND THE
TUNGUS CASE TO SO HOLD, AND IF SUCH A HOLDING WAS INTENDED BY ITS
AUTHOR OR BY ANY OF THE JUSTICES WHO JOINED IT, IT DOES NOT SAY SO. 

IT SEEMS TO ME THAT THE SUBSTANTIVE LEGAL RIGHTS AND LIABILITIES
INVOLVED IN THIS ADMIRALTY CASE ARE NOT IN ANY TRUE SENSE GOVERNED BY
WEST VIRGINIA LAW, BUT RATHER, ARE WITHIN THE FULL REACH OF EXCLUSIVE
ADMIRALTY JURISDICTION AND ARE TO BE MEASURED BY THE STANDARDS OF THE
GENERAL MARITIME LAW, KERMAREC V. COMPAGNIE GENERALE TRANSATLANTIQUE,
358 U.S. 625, 628, AS REMEDIALLY SUPPLEMENTED BY THE WEST VIRGINIA
WRONGFUL DEATH STATUTE.  SEE THE TUNGUS, SUPRA, AT 592. 

ALTHOUGH STATE WRONGFUL DEATH STATUTES ARE NOT ONES OF SURVIVORSHIP
AND ARE GENERALLY SPOKEN OF AS CREATING A NEW CAUSE OF ACTION FOR
DEATH, IT SEEMS RATHER CLEAR THAT THE WEST VIRGINIA WRONGFUL DEATH
STATUTE, LIKE MOST OTHERS, CREATES A CAUSE OF ACTION ONLY IN THE SENSE
OF PROVIDING A REMEDY FOR DEATH RESULTING FROM AN ACT MADE WRONGFUL BY
OTHER LAWS - WHETHER COMMON, STATUTORY OR MARITIME LAWS - WHICH WOULD
HAVE REDRESSED THE WRONG "IF DEATH HAD NOT ENSUED."  W.VA. CODE, 1955,
SEC. 5474(5).  AND WHEN, IN A CASE ENCOMPASSED BY THE TERMS OF THE
STATE'S WRONGFUL DEATH STATUTE, ADMIRALTY "ADOPTS" SUCH STATUTE, IT
DOES SO ONLY TO AFFORD A REMEDY FOR A SUBSTANTIVE CAUSE OF ACTION
CREATED BY THE MARITIME LAW WHICH, "IF DEATH HAD NOT ENSUED," WOULD
HAVE REDRESSED IT. 

IT IS TRUE THAT WHEN ADMIRALTY "ADOPTS" A STATE'S WRONGFUL DEATH
STATUTE "IT MUST ENFORCE IT AS AN INTEGRATED WHOLE, WITH WHATEVER
CONDITIONS AND LIMITATIONS THE CREATING STATE HAS ATTACHED."  THE
TUNGUS, SUPRA, AT 592.  BUT THE WEST VIRGINIA WRONGFUL DEATH STATUTE,
LIKE MOST SUCH STATE STATUTES, APART FROM PRESCRIBING WHO MAY PROSECUTE
THE ACTION, THE TIME WITHIN WHICH IT MUST BE BROUGHT, AND THE MEASURE
AND LIMIT OF RECOVERY, HAS ATTACHED ONLY THE CONDITION THAT THE
WRONGFUL "ACT, NEGLECT OR DEFAULT, BE SUCH AS WOULD  ...  HAVE ENTITLED
THE PARTY INJURED TO MAINTAIN AN ACTION TO RECOVER DAMAGES IN RESPECT
THEREOF (IF DEATH HAD NOT ENSUED)."  W.VA. CODE, 1955, SEC. 5474(5). 
SURELY THIS MEANS THAT THE ACT, NEGLECT OR DEFAULT, MUST BE SUCH AS
WOULD, UNDER OTHER LAWS - WHETHER COMMON, STATUTORY, OR MARITIME LAWS -
HAVE ENTITLED THE PARTY INJURED TO RECOVER DAMAGES IN RESPECT THEREOF
"IF DEATH HAD NOT ENSUED." 

ADOPTION BY ADMIRALTY OF SUCH A REMEDIAL STATUTE CANNOT BE PERMITTED
TO, AND DOES NOT, SO EXPAND THE ESSENTIAL PURPOSES AND CHARACTERISTIC
FEATURES OF THE GENERAL MARITIME LAW AS TO INTERFERE WITH ITS PROPER
NATION-WIDE HARMONY AND UNIFORMITY, SOUTHERN PACIFIC CO. V. JENSEN, 244
U.S. 205; WESTERN FUEL CO. V. GARCIA, 257 U.S. 233, 242.  BY SUCH
ADOPTION, ADMIRALTY TAKES OVER ONLY THE REMEDY AFFORDED FOR DEATH BY
THE STATE'S WRONGFUL DEATH STATUTE - ALBEIT THE WHOLE THEREOF.  IT DOES
NOT THEREBY ABANDON THE NONCONFLICTING SUBSTANTIVE ADMIRALTY LAW WHICH
GAVE RISE TO THE RIGHT OF ACTION THAT IT WOULD HAVE ENFORCED "IF DEATH
HAD NOT ENSUED."  IN SUCH A CASE, THE REAL AND SUBSTANTIVE RIGHT IN
SUIT IS STILL THE ONE CREATED BY, AND - TO THE EXTENT NOT CONFLICTING
WITH THE ADOPTED STATE WRONGFUL DEATH STATUTE - IS GOVERNED BY, THE
MARITIME LAW.    THAT IS WHAT I UNDERSTOOD THE TUNGUS CASE TO MEAN WHEN
I JOINED IT, AND RE-EXAMINATION OF IT CONFIRMS THAT CONCLUSION.  I
SUBMIT THERE IS NOT A WORD IN IT TO THE CONTRARY.  AND THIS CONCLUSION
IS BUTTRESSED BY THE SEPARATE OPINION OF MY BROTHER BRENNAN IN THAT
CASE.  ALTHOUGH THIS COURT HAS MANY TIMES AND UNIFORMLY HELD THAT THE
MARITIME LAW CREATES NO CAUSE OF ACTION FOR WRONGFUL DEATH, AND THAT,
IN CIRCUMSTANCES LIKE THESE, ADMIRALTY "ADOPTS" THE STATE'S WRONGFUL
DEATH ACT, THE SEPARATE OPINION IN TUNGUS SAID, IN EFFECT, THAT
ADMIRALTY WOULD MERELY LOOK TO SEE WHETHER THE STATE HAD ENACTED A
WRONGFUL DEATH STATUTE AND, IF IT HAD, WOULD NOT "ADOPT" THAT ACT BUT
WOULD PUT IT ASIDE AND FASHION ITS OWN REMEDY FOR WRONGFUL DEATH, 358
U.S., AT 608-609, WHICH, I THOUGHT AND STILL THINK, IS CONTRARY TO THIS
COURT'S CASES HOLDING THAT THE MARITIME LAW DOES NOT CREATE A CAUSE OF
ACTION FOR WRONGFUL DEATH AND THAT, IN ACTIONS FOR WRONGFUL DEATH
ARISING ON THE TERRITORIAL WATERS OF A STATE, ADMIRALTY "ADOPTS" THE
STATE'S WRONGFUL DEATH ACT CUM ONERE. 

I BELIEVE THAT THE OPINION OF THE COURT OF APPEALS MAKES REASONABLY
CLEAR THAT THE COURT REGARDED THIS CASE AS GOVERNED BY, AND THAT IT
APPLIED, THE GENERAL MARITIME LAW AS REMEDIALLY SUPPLEMENTED BY THE
WEST VIRGINIA WRONGFUL DEATH STATUTE.  I ALSO BELIEVE THAT THE COURT
CORRECTLY CONCLUDED THAT THE MARITIME DOCTRINE OF UNSEAWORTHINESS WAS
NOT APPLICABLE, AND THAT RESPONDENT WAS NOT GUILTY OF NEGLIGENCE
CAUSING OR CONTRIBUTING TO CAUSE THE DEATH OF PETITIONER'S DECEDENT,
BECAUSE, AS IT FOUND, THE BARGE WAS BOTH WITHDRAWN FROM NAVIGATION FOR
EXTENSIVE REPAIRS AND COMPLETELY OUT OF RESPONDENT'S CONTROL - POINTS
WE THOROUGHLY EXPLORED AND DECIDED ONLY THE OTHER DAY.  WEST V. UNITED
STATES, ANTE, P. 118.  I WOULD AFFIRM. 

MR. JUSTICE STEWART, DISSENTING. 

                                        I. 

IN THIS WRONGFUL DEATH ACTION IT WAS INCUMBENT UPON THE COURT OF
APPEALS TO APPLY THE SUBSTANTIVE LAW OF WEST VIRGINIA.  THE COURT TODAY
FINDS IT "HIGHLY DOUBTFUL" WHETHER THE COURT OF APPEALS DID SO.  I
ENTERTAIN NO SUCH DOUBT FOR THE FOLLOWING REASONS:  (1) THIS COURT'S
"INTERVENING DECISION" (FN1) IN THE TUNGUS V. SKOVGAARD, 358 U.S. 588,
ANNOUNCED NO NEW PRINCIPLE, BUT SIMPLY RESTATED A DOCTRINE WELL
ESTABLISHED IN THIS COURT.  (2)  LONG BEFORE THE DECISION IN THE
TUNGUS, THIS DOCTRINE HAD BEEN SPECIFICALLY RECOGNIZED AS THE LAW IN
THE FOURTH CIRCUIT.  (3)  THE EXPRESS LANGUAGE OF THE COURT OF APPEALS'
OPINION IN THE PRESENT CASE MAKES CLEAR THAT THE COURT UNDERSTOOD THAT
ITS FUNCTION WAS TO APPLY WEST VIRGINIA LAW, AND THAT IT DID SO. 

OUR DECISION IN THE TUNGUS SIMPLY REAFFIRMED A PRINCIPLE ARTICULATED
IN MANY DECISIONS OF THIS COURT.  THIS PRINCIPLE, COMPENDIOUSLY STATED,
IS THAT ADMIRALTY ENFORCES "THE OBLIGATIO" CREATED BY A STATE WRONGFUL
DEATH ACTION "AS IT WOULD ONE ORIGINATING IN ANY FOREIGN
JURISDICTION."  LEVINSON V. DEUPREE, 345 U.S. 648, 652.  SEE THE
HARRISBURG, 119 U.S. 199; THE HAMILTON, 207 U.S. 398; LA BOURGOGNE, 210
U.S. 95; WESTERN FUEL CO. V. GARCIA, 257 U.S. 233.  (FN2)  UNDER THIS
WEIGHT OF AUTHORITY, IT COULD BE PRESUMED THAT THE COURT OF APPEALS FOR
THE FOURTH CIRCUIT WOULD RECOGNIZE, AS OTHER FEDERAL COURTS HAVE
RECOGNIZED WHENEVER THE SPECIFIC QUESTION HAS ARISEN, THAT THE RIGHT TO
RECOVER FOR WRONGFUL DEATH OCCURRING ON THE NAVIGABLE WATERS OF A STATE
IS TO BE DETERMINED BY REFERENCE TO STATE LAW.  (FN3) 

BUT THERE IS NO NEED TO INDULGE IN SUCH A PRESUMPTION, BECAUSE THE
COURT OF APPEALS FOR THE FOURTH CIRCUIT, SEVERAL YEARS BEFORE THE
PRESENT CASE WAS DECIDED, MANIFESTED A THOROUGH UNDERSTANDING OF THE
CONTROLLING DOCTRINE EXACTLY IN ACCORD WITH THE PRINCIPLES CONFIRMED BY
THIS COURT LAST TERM IN THE TUNGUS.  IN CONTINENTAL CASUALTY CO. V. THE
BENNY SKOU, 200 F.2D 246 (C.A. 4TH CIR. 1952), A SUIT TO RECOVER FOR A
DEATH OCCURRING ON BOARD A SHIP IN THE TERRITORIAL WATERS OF VIRGINIA,
THE COURT HELD THAT THE ACTION WAS BARRED BY THE ONE-YEAR LIMITATION
CONTAINED IN THE VIRGINIA WRONGFUL DEATH ACT.  THE COURT'S REASONING
WAS UNAMBIGUOUS: "THE RIGHT OF ACTION WHICH APPELLANT HAS SOUGHT TO
ENFORCE IS ONE CREATED SOLELY BY THE VIRGINIA STATUTE  ...  .
'VIRGINIA HAS BESTOWED UPON ADMIRALTY A RIGHT TO GRANT A RECOVERY NOT
PREVIOUSLY POSSESSED BY ADMIRALTY.  THE ENDOWMENT MUST BE TAKEN CUM
ONERE.'  AS APPELLANT GROUNDS HIS ACTION UPON THE VIRGINIA STATUTE, HE
IS OBLIGED TO ACCEPT THE STATUTE IN ITS ENTIRETY AS CONSTRUED BY THE
VIRGINIA COURT OF LAST RESORT."  200 F.2D, AT 250. 

EVEN IF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT HAD NOT
PREVIOUSLY EXPRESSED SUCH A CLEAR UNDERSTANDING THAT CASES LIKE THESE
ARE CONTROLLED BY THE SUBSTANTIVE LAW OF THE STATE, I THINK THAT ITS
OPINION IN THE PRESENT CASE, STANDING ALONE, UNAMBIGUOUSLY SHOWS A
RECOGNITION OF THE DUTY TO APPLY THE SUBSTANTIVE LAW OF WEST VIRGINIA. 
WHAT THE COURT SAID SEEMS TO ME QUITE CLEAR:  "THE MARITIME LAW DOES
NOT ALLOW RECOVERY FOR WRONGFUL DEATH  ...  .  THE RIGHT TO MAINTAIN
SUCH A SUIT CAN BE ENFORCED IN ADMIRALTY ONLY IN ACCORDANCE WITH THE
SUBSTANTIVE LAW OF THE STATE WHOSE STATUTE IS BEING ADOPTED.  THE
ENDOWMENT MUST BE TAKEN CUM ONERE."  256 F.2D, AT 453.  THIS COURT'S
SUGGESTION THAT THE ABOVE LANGUAGE WAS CONFINED TO THE ISSUE OF THE
MONETARY LIMITATION UPON DAMAGES IN THE WEST VIRGINIA STATUTE IS TO ME
ENTIRELY UNCONVINCING, BECAUSE THE COURT OF APPEALS NEVER REACHED THE
QUESTION OF DAMAGES. 

             II. 

EVEN IF I WERE ABLE TO AGREE THAT IT IS UNCERTAIN WHETHER THE COURT
OF APPEALS DECIDED THIS CASE UNDER STANDARDS OF STATE OR FEDERAL LAW, I
STILL COULD NOT JOIN IN THE COURT'S JUDGMENT.  FOR EVEN IF THE COURT OF
APPEALS MISTAKENLY APPLIED SUBSTANTIVE STANDARDS OF FEDERAL MARITIME
LAW, NO PURPOSE COULD BE SERVED BY REMANDING THIS CASE UNLESS IT WERE
SHOWN THAT THE STATE LAW IS SOMEHOW MORE FAVORABLE TO THE PETITIONER. 
BUT THERE HAS BEEN NO SHOWING - NOR ANY SUGGESTION - THAT THE LAW OF
WEST VIRGINIA IS IN ANY WAY MORE FAVORABLE TO PLAINTIFFS THAN THE
GENERAL MARITIME LAW.  (FN4) CONTRAST HESS V. UNITED STATES, ANTE, P.
314. 

A REMAND OF THIS CASE IS EQUALLY POINTLESS ON THE ISSUE OF WHETHER,
AS A MATTER OF WEST VIRGINIA LAW, THE STATE DEATH STATUTE INCORPORATES
THE MARITIME DUTY OF PROVIDING A SEAWORTHY VESSEL.  THE DISTRICT JUDGE
FOUND THAT THE BARGE WAS UNSEAWORTHY, BUT WENT ON TO HOLD THAT "THIS
CASE IS NOT ONE FOR THE APPLICABILITY OF THE DOCTRINE OF LIABILITY
WITHOUT FAULT."  THE COURT OF APPEALS EXPRESSLY REFRAINED FROM DECIDING
WHETHER THE WEST VIRGINIA WRONGFUL DEATH STATUTE HAS IMPORTED THE
MARITIME CONCEPT OF UNSEAWORTHINESS, FINDING THAT THE CIRCUMSTANCES OF
THIS CASE WERE NOT SUCH AS TO IMPOSE LIABILITY UNDER THAT CONCEPT, EVEN
IF INCORPORATED IN THE STATE STATUTE.  THE COURT FOUND AS A FACT THAT
THE BARGE WAS NOT UNSEAWORTHY, AND HELD AS A MATTER OF LAW THAT IN ANY
EVENT THERE COULD BE NO WARRANTY OF SEAWORTHINESS WITH RESPECT TO A
VESSEL WITHDRAWN FROM NAVIGATION AND DELIVERED INTO THE SOLE CUSTODY
AND CONTROL OF A DRY DOCK COMPANY FOR THE PURPOSE OF MAJOR REPAIRS. 
ONLY LAST MONTH WE UNANIMOUSLY HELD THAT THIS VIEW OF THE SCOPE OF
UNSEAWORTHINESS LIABILITY IS CORRECT.  WEST V. UNITED STATES, ANTE, P.
118.  THERE IS NO POINT IN REQUIRING THE COURT OF APPEALS TO MAKE WHAT
WOULD THEREFORE BE SO COMPLETELY IRRELEVANT AN INQUIRY INTO AN ELUSIVE
QUESTION OF STATE LAW. 

I WOULD AFFIRM. 

FN1  THE JUDGMENT OF THE COURT OF APPEALS IN THE PRESENT CASE WAS
ENTERED MAY 27, 1958.  THE DECISION OF THIS COURT IN THE TUNGUS WAS
ANNOUNCED FEBRUARY 24, 1959. 

FN2  THE LAW TOOK A DIFFERENT TURN WITH RESPECT TO STATE WORKMEN'S
COMPENSATION LAWS.  SEE SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205. 
SUCH LEGISLATION WAS DIFFERENTIATED FROM STATE WRONGFUL DEATH STATUTES
BECAUSE OF THE GREATER BURDEN IMPOSED ON SHIPOWNERS BY "HEAVY PENALTIES
AND ONEROUS CONDITIONS" OF THE COMPENSATION STATUTES, AND BECAUSE OF
THE "NOVEL REMEDIES INCAPABLE OF ENFORCEMENT BY AN ADMIRALTY COURT." 
KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149, 166.  MORE THAN 15
YEARS AGO THIS COURT POINTED OUT THAT "THE JENSEN CASE HAS ALREADY BEEN
SEVERELY LIMITED, AND HAS NO VITALITY BEYOND THAT WHICH MAY CONTINUE AS
TO STATE WORKMEN'S COMPENSATION LAWS."  STANDARD DREDGING CO. V.
MURPHY, 319 U.S. 306, 309.  CF. DAVIS V. DEPARTMENT OF LABOR, 317 U.S.
249; HAHN V. ROSS ISLAND SAND & GRAVEL CO., 358 U.S. 272. 

FN3  SEE, E.G., TURNER V. WILSON LINE OF MASSACHUSETTS, 242 F.2D 414
(C.A. 1ST CIR.); HALECKI V. UNITED PILOTS ASSN., 251 F.2D 708 (C.A.2D
CIR.), JUDGMENT VACATED AND CAUSE REMANDED, 358 U.S. 613; CURTIS V. A.
GARCIA Y CIA., 241 F.2D 30 (C.A. 3D CIR.); GRAHAM V. A. LUSI, LTD., 206
F.2D 223 (C.A. 5TH CIR.); LEE V. PURE OIL CO., 218 F.2D 711 (C.A.  6TH
CIR.). 

FN4  INDEED THE CASE WAS SUBMITTED TO US UPON THE CONTRARY
ASSUMPTION.  THE PETITIONER'S ARGUMENT WAS PITCHED UPON HIS CONTENTION
THAT WE SHOULD OVERRULE THE HARRISBURG, 119 U.S. 199, SO THAT HIS
RIGHTS COULD BE DETERMINED UNDER FEDERAL LAW.  THE RESPONDENT RELIED
UPON WEST VIRGINIA DECISIONS IN URGING AFFIRMANCE. 
..END :















STATE CORPORATION COMMISSION OF KANSAS V. ARROW TRANSPORTATION CO. 361
U.S. 353 


NO. 526.  DECIDED JANUARY 18, 1960* - 176 F. SUPP. 411, AFFIRMED. 

*TOGETHER WITH NO. 527, ALABAMA GREAT SOUTHERN RAILROAD CO. ET AL. V.
ARROW TRANSPORTATION CO. ET AL., AND NO. 528, INTERSTATE COMMERCE
COMMISSION V. ARROW TRANSPORTATION CO. ET AL., ALSO ON APPEALS FROM THE
SAME COURT. 


STATE CORPORATION COMMISSION OF KANSAS ET AL. V. ARROW TRANSPORTATION
CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :











BLACKBURN V. ALABAMA 361 U.S. 199 


NO. 50.  ARGUED DECEMBER 10, 1959.  - DECIDED JANUARY 11, 1960.  - 40
ALA. APP. - , 109 SO. 2D 736, REVERSED. 


AFTER HAVING BEEN DISCHARGED FROM THE ARMED FORCES BECAUSE OF
PERMANENT MENTAL DISABILITY, AND DURING AN UNAUTHORIZED ABSENCE FROM A
VETERANS' HOSPITAL WHERE HE HAD BEEN CLASSIFIED AS 100% "INCOMPETENT,"
PETITIONER WAS ARRESTED ON A CHARGE OF ROBBERY.  AFTER EIGHT OR NINE
HOURS OF SUSTAINED INTERROGATION IN A SMALL ROOM WHICH WAS AT TIMES
FILLED WITH POLICE OFFICERS, HE SIGNED A CONFESSION WRITTEN FOR HIM BY
A DEPUTY SHERIFF.  SHORTLY THEREAFTER HE EXHIBITED SYMPTOMS OF INSANITY
AND, AFTER PROCEEDINGS PRESCRIBED BY STATE LAW, HE WAS FOUND INSANE AND
COMMITTED TO A STATE MENTAL HOSPITAL.  OVER FOUR YEARS LATER, HE WAS
DECLARED MENTALLY COMPETENT TO STAND TRIAL AND WAS TRIED IN A STATE
COURT ON THE ROBBERY CHARGE.  HIS CONFESSION WAS ADMITTED IN EVIDENCE
OVER HIS OBJECTION AND HE WAS CONVICTED.  HELD:  THE RECORD CLEARLY
ESTABLISHES THAT THE CONFESSION MOST PROBABLY WAS NOT THE PRODUCT OF
ANY MEANINGFUL ACT OF VOLITION; AND ITS USE IN OBTAINING PETITIONER'S
CONVICTION DEPRIVED HIM OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  PP. 200-211. 

(A)  THOUGH IT IS POSSIBLE THAT PETITIONER CONFESSED DURING A PERIOD
OF COMPLETE MENTAL COMPETENCE, THE EVIDENCE HERE ESTABLISHES THE
STRONGEST PROBABILITY THAT HE WAS INSANE AND INCOMPETENT AT THE TIME HE
ALLEGEDLY CONFESSED.  PP. 207-208. 

(B)  ON THE RECORD IN THIS CASE, THERE WAS NOT SUCH A CONFLICT IN THE
EVIDENCE AS TO REQUIRE THIS COURT TO ACCEPT THE TRIAL JUDGE'S
CONCLUSION THAT THE CONFESSION WAS VOLUNTARY.  PP. 208-209. 

(C)  WHERE THE INVOLUNTARINESS OF A CONFESSION IS CONCLUSIVELY
DEMONSTRATED AT ANY STAGE OF A TRIAL, THE DEFENDANT IS DEPRIVED OF DUE
PROCESS BY ITS USE IN OBTAINING HIS CONVICTION - EVEN THOUGH IMPORTANT
EVIDENCE CONCERNING THE INVOLUNTARINESS OF THE CONFESSION WAS NOT
INTRODUCED UNTIL AFTER ADMISSION OF THE CONFESSION INTO EVIDENCE AND
THE DEFENDANT'S COUNSEL DID NOT REQUEST RECONSIDERATION OF THAT
RULING.  PP. 209-211. 

BLACKBURN V. ALABAMA. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

JESSE BLACKBURN WAS TRIED IN THE CIRCUIT COURT OF COLBERT COUNTY,
ALABAMA, ON A CHARGE OF ROBBERY, FOUND GUILTY, AND SENTENCED TO 20
YEARS' IMPRISONMENT.  BY FAR THE MOST DAMAGING PIECE OF EVIDENCE
AGAINST HIM WAS HIS CONFESSION, WHICH HE PERSISTENTLY MAINTAINED HAD
NOT BEEN MADE VOLUNTARILY.  (FN1)  THE RECORD SEEMED TO PROVIDE
SUBSTANTIAL SUPPORT FOR THIS CONTENTION, AND WE GRANTED CERTIORARI
BECAUSE OF A GRAVE DOUBT WHETHER THE JUDGMENT COULD STAND IF MEASURED
AGAINST THE MANDATE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES.  359 U.S. 1010.  PLENARY HEARING HAS HARDENED THIS
DOUBT INTO FIRM CONVICTION: JESSE BLACKBURN HAS BEEN DEPRIVED OF HIS
LIBERTY WITHOUT DUE PROCESS OF LAW. 

THE CRIME WITH WHICH BLACKBURN WAS CHARGED WAS THE ROBBERY OF A
MOBILE STORE ON APRIL 19, 1948.  BY THAT DATE BLACKBURN, A 24-YEAR-OLD
NEGRO, HAD SUFFERED A LENGTHY SIEGE OF MENTAL ILLNESS.  HE HAD SERVED
IN THE ARMED FORCES DURING WORLD WAR II, BUT HAD BEEN DISCHARGED IN
1944 AS PERMANENTLY DISABLED BY A PSYCHOSIS.  HE WAS THEREUPON PLACED
IN AN INSTITUTION AND GIVEN MEDICAL TREATMENT OVER EXTENDED PERIODS
UNTIL FEBRUARY 14, 1948, WHEN HE WAS RELEASED FROM A VETERANS
ADMINISTRATION HOSPITAL FOR A TEN-DAY LEAVE IN THE CARE OF HIS SISTER. 
HE FAILED TO RETURN TO THE HOSPITAL AND CONSEQUENTLY WAS DISCHARGED ON
MAY 24, 1948.  THE ROBBERY OF WHICH HE STANDS CONVICTED OCCURRED DURING
THIS PERIOD OF UNAUTHORIZED ABSENCE FROM A MENTAL WARD.  BLACKBURN'S
MEDICAL RECORDS FURTHER DISCLOSE THAT FROM 1946 HE WAS CLASSIFIED BY
THE VETERANS ADMINISTRATION AS 100 PERCENT "INCOMPETENT" AND THAT AT
THE TIME OF HIS DISCHARGE FROM THE HOSPITAL BOTH HIS DIAGNOSIS OF
"SCHIZOPHRENIC REACTION, PARANOID TYPE" AND HIS CHARACTERIZATION AS
"INCOMPETENT" REMAINED UNCHANGED. 

THIS DOES NOT BY ANY MEANS END THE RECORD OF BLACKBURN'S HISTORY OF
MENTAL ILLNESS.  HE WAS ARRESTED SHORTLY FOLLOWING THE ROBBERY, AND
SOME TIME AFTER HIS CONFESSION ON MAY 8, 1948, THE SHERIFF REPORTED TO
THE CIRCUIT JUDGE THAT BLACKBURN HAD EXHIBITED SYMPTOMS OF INSANITY. 
THE JUDGE THEREUPON HAD BLACKBURN EXAMINED BY THREE PHYSICIANS, AND
AFTER RECEIVING THEIR REPORT HE CONCLUDED THAT THERE WAS "REASONABLE
GROUND TO BELIEVE THAT THE DEFENDANT WAS INSANE EITHER AT THE TIME OF
THE COMMISSION OF (THE) OFFENSE OR AT THE PRESENT TIME."  IN ACCORDANCE
WITH THE PROCEDURE PRESCRIBED BY ALABAMA LAW, (FN2) THE JUDGE THEN
DIRECTED THE SUPERINTENDENT OF THE ALABAMA STATE HOSPITALS TO CONVENE A
LUNACY COMMISSION.  WHEN THE COMMISSION UNANIMOUSLY DECLARED BLACKBURN
INSANE, THE JUDGE COMMITTED HIM TO THE ALABAMA STATE HOSPITAL FOR THE
MENTALLY ILL UNTIL HE SHOULD BE "RESTORED TO HIS RIGHT MIND."  (FN3)
BLACKBURN ESCAPED FROM THE HOSPITAL ONCE, ONLY TO BE APPREHENDED ON
ANOTHER CHARGE, DECLARED INSANE BY A SECOND ALABAMA CIRCUIT JUDGE, AND
SENT BACK TO THE HOSPITAL.  BEFORE HIS RETURN HE WAS EXAMINED BY
ANOTHER SET OF DOCTORS WHO DIAGNOSED HIS MENTAL CONDITION AS
"SCHIZOPHRENIC, REACTION, PARANOID TYPE" AND DECLARED THAT HE WAS
"INSANE, INCOMPETENT, AND SHOULD BE PLACED IN (AN) INSANE HOSPITAL." 
EXCEPT FOR THIS BRIEF INTERLUDE, BLACKBURN REMAINED IN THE HOSPITAL FOR
OVER FOUR YEARS, FROM JULY 1948 TO OCTOBER 1952, AT WHICH TIME HE WAS
DECLARED MENTALLY COMPETENT TO STAND TRIAL. 

AT HIS TRIAL, BLACKBURN ENTERED PLEAS OF NOT GUILTY AND NOT GUILTY BY
REASON OF INSANITY.  HE TESTIFIED THAT HE COULD REMEMBER NOTHING ABOUT
THE ALLEGED CRIME, THE CIRCUMSTANCES SURROUNDING IT, HIS ARREST, HIS
CONFESSION, HIS COMMITMENT TO THE STATE HOSPITAL, OR THE EARLY PERIOD
OF HIS TREATMENT THERE.  HE DENIED THE TRUTH OF THE CONFESSION, BUT
ADMITTED THAT THE SIGNATURE ON IT APPEARED TO BE HIS.  ACCORDING TO A
1944 ARMY MEDICAL REPORT, ONE ASPECT OF BLACKBURN'S ILLNESS WAS
RECURRENT "COMPLETE AMNESIA CONCERNING HIS BEHAVIOUR." 

WHEN THE PROSECUTOR PROPOSED TO INTRODUCE BLACKBURN'S CONFESSION INTO
EVIDENCE, HIS ATTORNEY OBJECTED, AND THE JUDGE HELD A HEARING TO
DETERMINE ITS ADMISSIBILITY.  BLACKBURN'S COUNSEL SUBMITTED TO THE
JUDGE THE DEPOSITIONS OF TWO OF THE THREE DOCTORS WHO HAD SERVED ON THE
LUNACY COMMISSION AND WHO HAD OBSERVED BLACKBURN DURING HIS PERIOD OF
TREATMENT AT THE STATE HOSPITAL.  THESE DEPOSITIONS INCORPORATED COPIES
OF THREE SIGNIFICANT DOCUMENTS.  THE FIRST WAS THE COURT ORDER
DIRECTING EXAMINATION OF BLACKBURN BY A LUNACY COMMISSION.  THIS ORDER
MENTIONED BLACKBURN'S PREVIOUS TREATMENT IN A MENTAL WARD AND TWO OF
HIS PRIOR COMMITMENTS TO MENTAL INSTITUTIONS.  THE SECOND PAPER WAS THE
LUNACY COMMISSION'S REPORT, IN WHICH THREE STATE-EMPLOYED DOCTORS HAD
EXPRESSED THEIR OPINION THAT BLACKBURN WAS INSANE BOTH AT THE TIME OF
HIS ADMISSION TO THE HOSPITAL ON JULY 29, 1948, AND AT THE TIME OF THE
ROBBERY ON APRIL 19, 1948.  FINALLY, THE DEPOSITIONS SET FORTH THE
ORDER WHICH PERMANENTLY COMMITTED BLACKBURN TO THE STATE HOSPITAL.  IN
ADDITION TO ATTESTING TO THE ACCURACY OF THESE DOCUMENTS, THE DEPONENTS
SET FORTH IN DETAIL THEIR OPINION OF BLACKBURN'S MENTAL CONDITION.  DR.
HARRY S. ROWE, THE ASSISTANT SUPERINTENDENT OF THE HOSPITAL, WHO HAD
WORKED SINCE 1923 EXCLUSIVELY WITH PHYCHOPATHIC PATIENTS, STATED THAT
AS A MEMBER OF THE LUNACY COMMISSION HE HAD PARTICIPATED IN ITS
INVESTIGATION AND IN THE SUBMISSION OF ITS REPORT.  DR. ROWE ALSO SAID
THAT HE HAD INTERVIEWED BLACKBURN ON MANY OCCASIONS SINCE HIS
COMMITMENT AND THAT HE NOT ONLY STILL THOUGHT BLACKBURN HAD BEEN INSANE
ON THE DATE OF THE CRIME BUT ALSO BELIEVED HE "MOST PROBABLY (HAD BEEN)
INSANE AND INCOMPETENT" ON MAY 8, 1948, WHEN HE HAD CONFESSED.  THESE
OPINIONS OF DR. ROWE WERE SECONDED BY DR. J.S. TARWATER, A PSYCHIATRIST
WHO WAS SUPERINTENDENT OF THE ALABAMA STATE HOSPITALS. 

TO COUNTER THIS EVIDENCE, THE PROSECUTOR INTRODUCED THE DEPOSITION OF
THE THIRD MEMBER OF THE LUNACY COMMISSION, DR. A.M. RICHARDS, A GENERAL
PRACTITIONER WHO HAD SPENT THE PREVIOUS TWELVE YEARS TREATING MENTAL
PATIENTS AND WHO WAS A STAFF MEMBER OF THE STATE HOSPITAL.  THE
DOCTOR'S ANSWERS TO PETITIONER'S INTERROGATORIES WERE IN HARMONY WITH
THE DEPOSITIONS OF DRS. TARWATER AND ROWE:  DR. RICHARDS ACKNOWLEDGED
THAT HE HAD SERVED ON THE LUNACY COMMISSION, THAT HE HAD SIGNED THE
REPORT, AND THAT HE HAD CONCURRED IN THE FINDING THAT BLACKBURN HAD
BEEN INSANE ON THE DATE OF THE CRIME.  HE DISCLAIMED HAVING ANY OTHER
INFORMATION OF VALUE, AND NOTED IN RESPONSE TO A CROSS-INTERROGATORY
THAT BLACKBURN HAD BEEN "UP ON THE CRIMINAL WARD AND HE WAS SUCH A
NUISANCE UNTIL I DIDN'T SEE HIM OFTEN."  IN HIS ANSWERS TO OTHER CROSS
INTERROGATORIES, HOWEVER, DR. RICHARDS EXECUTED AN ASTONISHING ABOUT
FACE BY OPINING THAT BLACKBURN HAD BEEN "NORMAL" SINCE HE FIRST SAW
HIM, THAT HIS MENTAL CONDITION WAS "NORMAL" ON THE DATE OF THE CRIME
AND "GOOD" ON THE DATE OF THE CONFESSION, AND THAT HE HAD NEVER SEEN
BLACKBURN SUFFER "PSYCHOTIC EPISODES."  EVEN THIS PORTION OF THE
DEPOSITION IS NOT WITHOUT INCONGRUITY, HOWEVER, FOR DR. RICHARDS'
RESPONSE TO ONE CROSS-INTERROGATORY WAS THAT HE DID NOT BELIEVE
BLACKBURN HAD EXPERIENCED LUCID INTERVALS. 

EVIDENCE CONCERNING THE CIRCUMSTANCES SURROUNDING THE MAKING OF THE
CONFESSION WAS SUPPLIED BY THE CHIEF DEPUTY SHERIFF.  HE TESTIFIED THAT
THE INTERROGATION HAD CONSUMED "SOMETHING LIKE, MAYBE FIVE OR SIX
HOURS" ON MAY 8, 1948, AND THAT NO ONE HAD THREATENED BLACKBURN IN ANY
WAY.  THE CHIEF DEPUTY COMPOSED THE STATEMENT IN NARRATIVE FORM ON THE
BASIS OF BLACKBURN'S ANSWERS TO THE VARIOUS QUESTIONS ASKED BY THE
OFFICERS, AND BLACKBURN SIGNED THE CONFESSION TWO DAYS LATER.  WHEN
ASKED ABOUT BLACKBURN'S BEHAVIOR, THE WITNESS RESPONDED THAT BLACKBURN
HAD "ANSWERED LIKE ANY NORMAL PERSON I HAVE EXAMINED."  AFTER THE JUDGE
RULED THAT THE CONFESSION WOULD BE ADMITTED, BUT BEFORE IT WAS ACTUALLY
ADMITTED, THE CHIEF DEPUTY DESCRIBED IN SOMEWHAT GREATER DETAIL - THIS
TIME TO THE JURY - THE MANNER IN WHICH THE CONFESSION HAD BEEN
OBTAINED.  IT DEVELOPED THAT THE EXAMINATION HAD BEGUN AT APPROXIMATELY
ONE O'CLOCK IN THE AFTERNOON AND HAD CONTINUED UNTIL TEN OR ELEVEN
O'CLOCK THAT EVENING WITH ABOUT AN HOUR'S BREAK FOR DINNER.  THUS IT
WAS ESTABLISHED THAT THE QUESTIONING WENT ON FOR EIGHT OR NINE HOURS
RATHER THAN FIVE OR SIX.  APPARENTLY MOST OF THE INTERROGATION TOOK
PLACE IN CLOSELY CONFINED QUARTERS - A ROOM ABOUT FOUR BY SIX OR SIX BY
EIGHT FEET - IN WHICH AS MANY AS THREE OFFICERS HAD AT TIMES BEEN
PRESENT WITH BLACKBURN.  THE CHIEF DEPUTY CONCEDED THAT BLACKBURN SAID
HE HAD BEEN A PATIENT IN A MENTAL INSTITUTION, BUT CLAIMED THAT
BLACKBURN ALSO STATED HE HAD BEEN RELEASED, AND AVOWED THAT BLACKBURN
"TALKED SENSIBLE AND GAVE SENSIBLE ANSWERS," WAS CLEAR-EYED, AND DID
NOT APPEAR NERVOUS. 

BLACKBURN'S COUNSEL AGAIN OBJECTED TO ADMISSION OF THE STATEMENT, BUT
THE OBJECTION WAS OVERRULED AND THE CONFESSION WAS SUBMITTED TO THE
JURY.  AFTER THE ALABAMA COURT OF APPEALS AFFIRMED THE JUDGMENT AND
HELD THAT THE FOURTEENTH AMENDMENT DID NOT REQUIRE EXCLUSION OF THE
CONFESSION, BLACKBURN PETITIONED THIS COURT FOR CERTIORARI.  (FN4)
THUS WAS THE CONSTITUTIONAL ISSUE RAISED, DECIDED, AND PRESENTED TO
THIS COURT FOR REVIEW. 

AFTER ACCORDING ALL OF THE DEFERENCE TO THE TRIAL JUDGE'S DECISION
WHICH IS COMPATIBLE WITH OUR DUTY TO DETERMINE CONSTITUTIONAL
QUESTIONS, (FN5) WE ARE UNABLE TO ESCAPE THE CONCLUSION THAT
BLACKBURN'S CONFESSION CAN FAIRLY BE CHARACTERIZED ONLY AS
INVOLUNTARY.  CONSEQUENTLY THE CONVICTION MUST BE SET ASIDE, SINCE THIS
COURT, IN A LINE OF DECISIONS BEGINNING IN 1936 WITH BROWN V.
MISSISSIPPI, 297 U.S. 278, AND INCLUDING CASES BY NOW TOO WELL KNOWN
AND TOO NUMEROUS TO BEAR CITATION, HAS ESTABLISHED THE PRINCIPLE THAT
THE FOURTEENTH AMENDMENT IS GRIEVOUSLY BREACHED WHEN AN INVOLUNTARY
CONFESSION IS OBTAINED BY STATE OFFICERS AND INTRODUCED INTO EVIDENCE
IN A CRIMINAL PROSECUTION WHICH CULMINATES IN A CONVICTION. 

SINCE CHAMBERS V. FLORIDA, 309 U.S. 227, THIS COURT HAS RECOGNIZED
THAT COERCION CAN BE MENTAL AS WELL AS PHYSICAL, AND THAT THE BLOOD OF
THE ACCUSED IS NOT THE ONLY HALLMARK OF AN UNCONSTITUTIONAL
INQUISITION.  A NUMBER OF CASES HAVE DEMONSTRATED, IF DEMONSTRATION
WERE NEEDED, THAT THE EFFICIENCY OF THE RACK AND THE THUMBSCREW CAN BE
MATCHED, GIVEN THE PROPER SUBJECT, BY MORE SOPHISTICATED MODES OF
"PERSUASION."  (FN6)  A PROLONGED INTERROGATION OF AN ACCUSED WHO IS
IGNORANT OF HIS RIGHTS AND WHO HAS BEEN CUT OFF FROM THE MORAL SUPPORT
OF FRIENDS AND RELATIVES IS NOT INFREQUENTLY AN EFFECTIVE TECHNIQUE OF
TERROR.  THUS THE RANGE OF INQUIRY IN THIS TYPE OF CASE MUST BE BROAD,
AND THIS COURT HAS INSISTED THAT THE JUDGMENT IN EACH INSTANCE BE BASED
UPON CONSIDERATION OF "THE TOTALITY OF THE CIRCUMSTANCES."  FIKES V.
ALABAMA, 352 U.S. 191, 197. 

IT IS ALSO ESTABLISHED THAT THE FOURTEENTH AMENDMENT FORBIDS
"FUNDAMENTAL UNFAIRNESS IN THE USE OF EVIDENCE, WHETHER TRUE OR
FALSE."  LISENBA V. CALIFORNIA, 314 U.S. 219, 236.  CONSEQUENTLY, WE
HAVE REJECTED THE ARGUMENT THAT INTRODUCTION OF AN INVOLUNTARY
CONFESSION IS IMMATERIAL WHERE OTHER EVIDENCE ESTABLISHES GUILT OR
CORROBORATES THE CONFESSION.  E.G., SPANO V. NEW YORK, 360 U.S. 315,
324; PAYNE V. ARKANSAS, 356 U.S. 560, 567-568; WATTS V. INDIANA, 338
U.S. 49, 50, N. 2; HALEY V. OHIO, 332 U.S. 596, 599.  AS IMPORTANT AS
IT IS THAT PERSONS WHO HAVE COMMITTED CRIMES BE CONVICTED, THERE ARE
CONSIDERATIONS WHICH TRANSCEND THE QUESTION OF GUILT OR INNOCENCE. 
THUS, IN CASES INVOLVING INVOLUNTARY CONFESSIONS, THIS COURT ENFORCES
THE STRONGLY FELT ATTITUDE OF OUR SOCIETY THAT IMPORTANT HUMAN VALUES
ARE SACRIFICED WHERE AN AGENCY OF THE GOVERNMENT, IN THE COURSE OF
SECURING A CONVICTION, WRINGS A CONFESSION OUT OF AN ACCUSED AGAINST
HIS WILL.  THIS INSISTENCE UPON PUTTING THE GOVERNMENT TO THE TASK OF
PROVING GUILT BY MEANS OTHER THAN INQUISITION WAS ENGENDERED BY
HISTORICAL ABUSES WHICH ARE QUITE FAMILIAR.  SEE CHAMBERS V. FLORIDA,
SUPRA, AT 235-238; WATTS V. INDIANA, SUPRA, AT 54-55. 

BUT NEITHER THE LIKELIHOOD THAT THE CONFESSION IS UNTRUE NOR THE
PRESERVATION OF THE INDIVIDUAL'S FREEDOM OF WILL IS THE SOLE INTEREST
AT STAKE.  AS WE SAID JUST LAST TERM, "THE ABHORRENCE OF SOCIETY TO THE
USE OF INVOLUNTARY CONFESSIONS  ...  ALSO TURNS ON THE DEEP-ROOTED
FEELING THAT THE POLICE MUST OBEY THE LAW WHILE ENFORCING THE LAW; THAT
IN THE END LIFE AND LIBERTY CAN BE AS MUCH ENDANGERED FROM ILLEGAL
METHODS USED TO CONVICT THOSE THOUGHT TO BE CRIMINALS AS FROM THE
ACTUAL CRIMINALS THEMSELVES."  SPANO V. NEW YORK, SUPRA, AT 320-321. 
THUS A COMPLEX OF VALUES UNDERLIES THE STRICTURE AGAINST USE BY THE
STATE OF CONFESSIONS WHICH, BY WAY OF CONVENIENT SHORTHAND, THIS COURT
TERMS INVOLUNTARY, AND THE ROLE PLAYED BY EACH IN ANY SITUATION VARIES
ACCORDING TO THE PARTICULAR CIRCUMSTANCES OF THE CASE. 

IN THE CASE AT BAR, THE EVIDENCE INDISPUTABLY ESTABLISHES THE
STRONGEST PROBABILITY THAT BLACKBURN WAS INSANE AND INCOMPETENT AT THE
TIME HE ALLEGEDLY CONFESSED.  SURELY IN THE PRESENT STAGE OF OUR
CIVILIZATION A MOST BASIC SENSE OF JUSTICE IS AFFRONTED BY THE
SPECTACLE OF INCARCERATING A HUMAN BEING UPON THE BASIS OF A STATEMENT
HE MADE WHILE INSANE; AND THIS JUDGMENT CAN WITHOUT DIFFICULTY BE
ARTICULATED IN TERMS OF THE UNRELIABILITY OF THE CONFESSION, THE LACK
OF RATIONAL CHOICE OF THE ACCUSED, OR SIMPLY A STRONG CONVICTION THAT
OUR SYSTEM OF LAW ENFORCEMENT SHOULD NOT OPERATE SO AS TO TAKE
ADVANTAGE OF A PERSON IN THIS FASHION.  AND WHEN THE OTHER PERTINENT
CIRCUMSTANCES ARE CONSIDERED - THE EIGHT- TO NINE-HOUR SUSTAINED
INTERROGATION IN A TINY ROOM WHICH WAS UPON OCCASION LITERALLY FILLED
WITH POLICE OFFICERS; THE ABSENCE OF BLACKBURN'S FRIENDS, RELATIVES, OR
LEGAL COUNSEL; THE COMPOSITION OF THE CONFESSION BY THE DEPUTY SHERIFF
RATHER THAN BY BLACKBURN - THE CHANCES OF THE CONFESSION'S HAVING BEEN
THE PRODUCT OF A RATIONAL INTELLECT AND A FREE WILL BECOME EVEN MORE
REMOTE AND THE DENIAL OF DUE PROCESS EVEN MORE EGREGIOUS. 

IT IS, OF COURSE, QUITE TRUE THAT WE ARE DEALING HERE WITH
PROBABILITIES.  IT IS POSSIBLE, FOR EXAMPLE, THAT BLACKBURN CONFESSED
DURING A PERIOD OF COMPLETE MENTAL COMPETENCE.  MOREOVER, THESE
PROBABILITIES ARE GAUGED IN THIS INSTANCE PRIMARILY BY THE OPINION
EVIDENCE OF MEDICAL EXPERTS.  BUT THIS CASE IS NOVEL ONLY IN THE SENSE
THAT THE EVIDENCE OF INSANITY HERE IS COMPELLING, FOR THIS COURT HAS IN
THE PAST REVERSED CONVICTIONS WHERE PSYCHIATRIC EVIDENCE REVEALED THAT
THE PERSON WHO HAD CONFESSED WAS "OF LOW MENTALITY, IF NOT MENTALLY
ILL," FIKES V. ALABAMA, SUPRA, AT 196, OR HAD A "HISTORY OF EMOTIONAL
INSTABILITY," SPANO V. NEW YORK, SUPRA, AT 322.  AND ALTHOUGH FACTS
SUCH AS YOUTH AND LACK OF EDUCATION ARE MORE EASILY ASCERTAINED THAN
THE IMBALANCE OF A HUMAN MIND, (FN7) WE CANNOT SAY THAT THIS HAS ANY
APPRECIABLE BEARING UPON THE DIFFICULTY OF THE ULTIMATE JUDGMENT AS TO
THE EFFECT THESE VARIOUS CIRCUMSTANCES HAVE UPON INDEPENDENCE OF WILL,
A JUDGMENT WHICH MUST BY ITS NATURE ALWAYS BE ONE OF PROBABILITIES. 

OF COURSE, THIS CASE IS NO DIFFERENT FROM OTHER INVOLUNTARY
CONFESSION CASES IN ANOTHER RESPECT - WHERE THERE IS A GENUINE CONFLICT
OF EVIDENCE GREAT RELIANCE MUST BE PLACED UPON THE FINDER OF FACT.   IT
IS THIS PROPOSITION UPON WHICH RESPONDENT'S PRINCIPAL ARGUMENT RESTS,
FOR THE TRIAL JUDGE'S DECISION IS SAID TO BE INVIOLABLE BECAUSE OF AN
ALLEGED CONFLICT BETWEEN THE DEPOSITIONS OF DR. RICHARDS ON THE ONE
HAND AND DRS. TARWATER AND TOWE ON THE OTHER.  WE NEED NOT IN THIS CASE
CONSIDER THE RELEVANCE OF THE FACT THAT THE TRIAL JUDGE, LIKE
OURSELVES, HAD NO OPPORTUNITY TO WITNESS THE DEMEANOR OF THESE
DOCTORS.  IT IS SUFFICIENT TO OBSERVE THAT THE DEPOSITION OF DR.
RICHARDS IS IN SUCH HOPELESS INTERNAL CONFLICT THAT IT RAISES NO
GENUINE ISSUE OF FACT.  IT WOULD BE UNREASONABLE IN THE EXTREME TO BASE
A DETERMINATION UPON THOSE PORTIONS IN WHICH THE DOCTOR PROCLAIMED
BLACKBURN NORMAL WHILE IGNORING THOSE PORTIONS IN WHICH HE JUDGED
BLACKBURN INSANE.  NOR HAVE WE OVERLOOKED THE TESTIMONY OF THE CHIEF
DEPUTY THAT BLACKBURN "TALKED SENSIBLE," WAS CLEAR-EYED, AND DID NOT
APPEAR NERVOUS.  BUT WITHOUT ANY EVIDENCE IN THE RECORD INDICATING THAT
THESE OBSERVED FACTS BORE ANY RELATION TO BLACKBURN'S DISEASE OR WERE
SYMPTOMS OF A REMISSION OF HIS ILLNESS, WE ARE QUITE UNABLE TO CONCLUDE
THAT SUCH AN INFERENCE CAN BE DRAWN.  (FN8)  THE FOURTEENTH AMENDMENT
WOULD BE AN ILLUSORY SAFEGUARD INDEED IF TESTIMONY OF THIS NATURE WERE
HELD TO RAISE A "CONFLICT" WHICH WOULD PRECLUDE APPELLATE REVIEW OF A
CASE WHERE THE EVIDENCE OF INSANITY IS AS COMPELLING AS IT IS HERE. 

WE TAKE NOTE ALSO OF RESPONDENT'S ARGUMENT THAT OUR DECISION MUST BE
PREDICATED SOLELY UPON THE EVIDENCE INTRODUCED BY DEFENDANT BEFORE
ADMISSION OF THE CONFESSION.  AS WE HAVE INDICATED, THIS EVIDENCE
CONSISTED OF THE DEPOSITIONS, THE COPIES OF THE DOCUMENTS INCORPORATED
THEREIN, AND THE TESTIMONY OF THE CHIEF DEPUTY.  THE OTHER RELEVANT
EVIDENCE, WHICH INCLUDED THE DETAILED MEDICAL RECORD OF BLACKBURN'S
MENTAL ILLNESS PRIOR TO HIS ARREST, WAS INTRODUCED AT A LATER STAGE OF
THE TRIAL.  IT IS QUITE TRUE THAT BLACKBURN'S COUNSEL, SO FAR AS THE
RECORD SHOWS, MADE NO REQUEST THAT THE JUDGE RECONSIDER HIS RULING ON
THE BASIS OF THIS ADDITIONAL DATA.  THE ALABAMA COURT OF APPEALS
DECIDED THAT UNDER THESE CIRCUMSTANCES THIS FURTHER DOCUMENTATION OF
BLACKBURN'S INSANITY WAS NOT, UNDER STATE LAW, MATERIAL TO THE
FOURTEENTH AMENDMENT QUESTION. 

EVEN IF RESPONDENT'S ARGUMENT WERE MERITORIOUS OUR DECISION WOULD BE
THE SAME, SINCE THE EVIDENCE INTRODUCED PRIOR TO ADMISSION OF THE
CONFESSION WAS AMPLE TO ESTABLISH ITS INVOLUNTARINESS.  BUT WE REJECT
THE NOTION THAT THE SCOPE OF OUR REVIEW CAN BE THUS RESTRICTED.  WHERE
THE INVOLUNTARINESS OF A CONFESSION IS CONCLUSIVELY DEMONSTRATED AT ANY
STAGE OF A TRIAL, THE DEFENDANT IS DEPRIVED OF DUE PROCESS BY ENTRY OF
JUDGMENT OF CONVICTION WITHOUT EXCLUSION OF THE CONFESSION.  AN
ARGUMENT SIMILAR TO RESPONDENT'S WAS DISPOSED OF IN BROWN V.
MISSISSIPPI, 297 U.S. 278, IN THE FOLLOWING WORDS: 

"THAT CONTENTION RESTS UPON THE FAILURE OF COUNSEL FOR THE ACCUSED,
WHO HAD OBJECTED TO THE ADMISSIBILITY OF THE CONFESSIONS, TO MOVE FOR
THEIR EXCLUSION AFTER THEY HAD BEEN INTRODUCED AND THE FACT OF COERCION
HAD BEEN PROVED.  IT IS A CONTENTION WHICH PROCEEDS UPON A
MISCONCEPTION OF THE NATURE OF PETITIONERS' COMPLAINT.  THAT COMPLAINT
IS NOT OF THE COMMISSION OF MERE ERROR, BUT OF A WRONG SO FUNDAMENTAL
THAT IT MADE THE WHOLE PROCEEDING A MERE PRETENSE OF A TRIAL AND
RENDERED THE CONVICTION AND SENTENCE WHOLLY VOID  ...  . WE ARE NOT
CONCERNED WITH A MERE QUESTION OF STATE PRACTICE, OR WHETHER COUNSEL
ASSIGNED TO PETITIONERS WERE COMPETENT OR MISTAKENLY ASSUMED THAT THEIR
FIRST OBJECTIONS WERE SUFFICIENT  ...  . 

"IN THE INSTANT CASE, THE TRIAL COURT WAS FULLY ADVISED BY THE
UNDISPUTED EVIDENCE OF THE WAY IN WHICH THE CONFESSIONS HAD BEEN
PROCURED.  THE TRIAL COURT KNEW THAT THERE WAS NO OTHER EVIDENCE UPON
WHICH CONVICTION AND SENTENCE COULD BE BASED.  YET IT PROCEEDED TO
PERMIT CONVICTION AND TO PRONOUNCE SENTENCE.  THE CONVICTION AND
SENTENCE WERE VOID FOR WANT OF THE ESSENTIAL ELEMENTS OF DUE PROCESS
...  ."  ID., AT 286-287. 

JUST AS IN BROWN, THE EVIDENCE HERE CLEARLY ESTABLISHES THAT THE
CONFESSION MOST PROBABLY WAS NOT THE PRODUCT OF ANY MEANINGFUL ACT OF
VOLITION.  THEREFORE, THE USE OF THIS EVIDENCE TO CONVICT BLACKBURN
TRANSGRESSED THE IMPERATIVES OF FUNDAMENTAL JUSTICE WHICH FIND THEIR
EXPRESSION IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND
THE JUDGMENT MUST BE REVERSED. 

FN1  THE ONLY OTHER ADVERSE EVIDENCE OF ANY SIGNIFICANCE TENDED TO
PROVE THAT BLACKBURN AND TWO OTHERS HAD TRAVELED TO ALABAMA FROM
ILLINOIS AROUND THE DATE OF THE ROBBERY; THAT THEY WERE DRIVING A
MAROON BUICK; AND THAT THE CRIME WAS COMMITTED BY PERSONS WHO DROVE A
MAROON BUICK WITH AN ILLINOIS LICENSE PLATE. 

FN2  ALA. CODE, 1940, TIT. 15, SEC. 425. 

FN3  WE LATER SET FORTH IN DETAIL THE OPINIONS OF THE MEMBERS OF THIS
LUNACY COMMISSION, DRS. TARWATER, ROWE, AND RICHARDS.  AS WILL APPEAR,
THE EVIDENCE THEY SUPPLIED IS OF CRITICAL IMPORTANCE IN THIS CASE. 

FN4  THE ALABAMA COURT OF APPEALS WROTE TWO OPINIONS IN THIS CASE. 
AFTER THE FIRST, 38 ALA. APP. 143, 88 SO. 2D 199, AND AFTER THE ALABAMA
SUPREME COURT HAD DENIED CERTIORARI, 264 ALA. 694, 88 SO. 2D 205, WE
GRANTED CERTIORARI, 352 U.S. 924, AND LATER VACATED THE JUDGMENT AND
REMANDED THE CASE TO THE COURT OF APPEALS BECAUSE WE WERE UNCERTAIN
WHETHER THAT COURT HAD PASSED UPON THE FEDERAL QUESTION.  354 U.S.
393.  THE COURT OF APPEALS REAFFIRMED THE JUDGMENT OF CONVICTION, 40
ALA. APP. - , 109 SO. 2D 736, AND THE ALABAMA SUPREME COURT AGAIN
DENIED CERTIORARI, 268 ALA. 699, 109 SO. 2D 738.  THE CASE WAS THEN
RIPE FOR OUR REVIEW, AND WE GRANTED CERTIORARI ONCE MORE.  359 U.S.
1010. 

FN5  IT IS WELL ESTABLISHED, OF COURSE, THAT ALTHOUGH THIS COURT WILL
ACCORD RESPECT TO THE CONCLUSIONS OF THE STATE COURTS IN CASES OF THIS
NATURE, WE CANNOT ESCAPE THE RESPONSIBILITY OF SCRUTINIZING THE RECORD
OURSELVES.  E.G., SPANO V. NEW YORK, 360 U.S. 315, 316; PIERRE V.
LOUISIANA, 306 U.S. 354, 358; CHAMBERS V. FLORIDA, 309 U.S. 227, 228
229. 

FN6  E.G., SPANO V. NEW YORK, 360 U.S. 315; FIKES V. ALABAMA, 352
U.S. 191; WATTS V. INDIANA, 338 U.S. 49; TURNER V. PENNSYLVANIA, 338
U.S. 62; HARRIS V. SOUTH CAROLINA, 338 U.S. 68; ASHCRAFT V. TENNESSEE,
322 U.S. 143. 

FN7  LACK OF EDUCATION IS A FACTOR FREQUENTLY PRESENT IN THIS TYPE OF
CASE; AND IN HALEY V. OHIO, SUPRA, THE FACT THAT THE ACCUSED WAS A 15
YEAR-OLD YOUTH WEIGHED HEAVILY IN THE COURT'S JUDGMENT. 

FN8  IT IS INTERESTING TO NOTE THAT BLACKBURN'S MEDICAL RECORDS
DISCLOSE THAT IN 1944 HE WAS GIVEN A DIAGNOSIS OF "PSYCHOSIS, MANIC
DEPRESSIVE, MANIC PHASE," AND YET WAS SAID TO ANSWER QUESTIONS
"RELEVANTLY AND COHERENTLY."  DR. ROWE STATED THAT IT WAS CLEAR
BLACKBURN "WAS SUFFERING FROM SCHIZOPHRENIA OF THE PARANOIC TYPE.  THEY
...  ENTERTAIN DELUSIONS  ...  ." 

MR. JUSTICE CLARK CONCURS IN THE RESULT. 
..END :






















STIRONE V. UNITED STATES 361 U.S. 212 


NO. 35.  ARGUED NOVEMBER 9-10, 1959 - DECIDED JANUARY 11, 1960 - 262
F.2D 571, REVERSED. 


PETITIONER WAS INDICTED AND CONVICTED IN A FEDERAL DISTRICT COURT FOR
INTERFERING WITH INTERSTATE COMMERCE BY EXTORTION, IN VIOLATION OF THE
HOBBS ACT, 18 U.S.C. SEC. 1951.  THE ONLY INTERSTATE COMMERCE MENTIONED
IN THE INDICTMENT WAS THE IMPORTATION INTO PENNSYLVANIA OF SAND TO BE
USED IN BUILDING A STEEL PLANT THERE; BUT THE TRIAL JUDGE PERMITTED THE
INTRODUCTION OF EVIDENCE TO SHOW INTERFERENCE ALSO WITH THE EXPORTATION
FROM PENNSYLVANIA OF STEEL TO BE MANUFACTURED IN THE NEW PLANT, AND HE
INSTRUCTED THE JURY THAT IT COULD BASE A CONVICTION UPON INTERFERENCE
WITH EITHER THE IMPORTATION OF SAND OR THE EXPORTATION OF STEEL.  HELD:
THE CONVICTION IS REVERSED.  PP. 213-219. 

(A)  SINCE THE INDICTMENT DID NOT CHARGE INTERFERENCE WITH THE
EXPORTATION OF STEEL FROM THE STATE, IT WAS PREJUDICIAL ERROR TO SUBMIT
TO THE JURY THE QUESTION WHETHER THE EXTORTION INTERFERED WITH THE
EXPORTATION OF STEEL.  PP. 215-219. 

(B)  THE VARIANCE BETWEEN PLEADING AND PROOF HERE INVOLVED WAS NOT
INSIGNIFICANT AND MAY NOT BE DISMISSED AS HARMLESS ERROR, BECAUSE IT
DEPRIVED PETITIONER OF HIS SUBSTANTIAL RIGHT TO BE TRIED FOR A FELONY
ONLY ON CHARGES PRESENTED IN AN INDICTMENT RETURNED BY A GRAND JURY. 
PP. 217-218. 

(C)  SINCE THE JURY MIGHT HAVE BASED THE CONVICTION ON A FINDING OF
INTERFERENCE WITH THE EXPORTATION OF STEEL, THE CONVICTION MUST BE
REVERSED.  P. 219. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER NICHOLAS STIRONE WAS INDICTED AND CONVICTED IN A FEDERAL
COURT FOR UNLAWFULLY INTERFERING WITH INTERSTATE COMMERCE IN VIOLATION
OF THE HOBBS ACT.  (FN1)  THE CRUCIAL QUESTION HERE IS WHETHER HE WAS
CONVICTED OF AN OFFENSE NOT CHARGED IN THE INDICTMENT. 

SO FAR AS RELEVANT TO THIS QUESTION THE INDICTMENT CHARGED THE
FOLLOWING: 

FROM 1951 UNTIL 1953, A MAN BY THE NAME OF WILLIAM G. RIDER HAD A
CONTRACT TO SUPPLY READY-MIXED CONCRETE FROM HIS PLANT IN PENNSYLVANIA
TO BE USED FOR THE ERECTION OF A STEEL-PROCESSING PLANT AT ALLENPORT,
PENNSYLVANIA.  FOR THE PURPOSE OF PERFORMING THIS CONTRACT RIDER: 

"CAUSED SUPPLIES AND MATERIALS (SAND) TO MOVE IN INTERSTATE COMMERCE
BETWEEN VARIOUS POINTS IN THE UNITED STATES AND THE SITE OF HIS PLANT
FOR THE MANUFACTURE OR MIXING OF READY MIXED CONCRETE, AND MORE
PARTICULARLY, FROM OUTSIDE THE STATE OF PENNSYLVANIA INTO THE STATE OF
PENNSYLVANIA." 

THE INDICTMENT WENT ON TO CHARGE THAT STIRONE, USING HIS INFLUENTIAL
UNION POSITION: 

"DID  ...  UNLAWFULLY OBSTRUCT, DELAY (AND) AFFECT INTERSTATE
COMMERCE BETWEEN THE SEVERAL STATES OF THE UNITED STATES AND THE
MOVEMENT OF THE AFORESAID MATERIALS AND SUPPLIES IN SUCH COMMERCE, BY
EXTORTION  ...  OF $31,274.13  ...  INDUCED BY FEAR AND BY THE WRONGFUL
USE OF THREATS OF LABOR DISPUTES AND THREATS OF THE LOSS OF, AND
OBSTRUCTION AND PREVENTION OF, PERFORMANCE OF HIS CONTRACT TO SUPPLY
READY MIXED CONCRETE." 

THE DISTRICT JUDGE, OVER PETITIONER'S OBJECTION AS TO ITS MATERIALITY
AND RELEVANCY, PERMITTED THE GOVERNMENT TO OFFER EVIDENCE OF AN EFFECT
ON INTERSTATE COMMERCE NOT ONLY IN SAND BROUGHT INTO PENNSYLVANIA FROM
OTHER STATES BUT ALSO IN STEEL SHIPMENTS FROM THE STEEL PLANT IN
PENNSYLVANIA INTO MICHIGAN AND KENTUCKY.  AGAIN OVER PETITIONER'S
OBJECTION THE TRIAL JUDGE CHARGED THE JURY THAT SO FAR AS THE
INTERSTATE COMMERCE ASPECT OF THE CASE WAS CONCERNED, STIRONE'S GUILT
COULD BE RESTED EITHER ON A FINDING THAT (1) SAND USED TO MAKE THE
CONCRETE "HAD BEEN SHIPPED FROM ANOTHER STATE INTO PENNSYLVANIA" OR (2)
"MR. RIDER'S CONCRETE WAS USED FOR CONSTRUCTING A MILL WHICH WOULD
MANUFACTURE ARTICLES OF STEEL TO BE SHIPPED IN INTERSTATE COMMERCE  ...
" FROM PENNSYLVANIA INTO OTHER STATES.  ON MOTION OF PETITIONER FOR
ARREST OF JUDGMENT, ACQUITTAL OR NEW TRIAL, THE DISTRICT COURT HELD
THAT "A SUFFICIENT FOUNDATION FOR INTRODUCTION OF BOTH KINDS OF PROOF
WAS LAID IN THE INDICTMENT."  168 F. SUPP. 490, 495.  THE COURT OF
APPEALS AFFIRMED, ALL THE JUDGES AGREEING THAT INTERFERENCE WITH THE
SAND MOVEMENTS INTO PENNSYLVANIA WAS BARRED BY THE HOBBS ACT.  262 F.2D
571.  JUDGE HASTIE AND CHIEF JUDGE BIGGS DISAGREED WITH THE COURT'S
HOLDING THAT STIRONE COULD BE TRIED AND CONVICTED FOR INTERFERENCE WITH
THE POSSIBLE FUTURE SHIPMENTS OF STEEL FROM PENNSYLVANIA TO MICHIGAN
AND KENTUCKY.  262 F.2D, AT 578, 580.  THEY WERE OF OPINION THAT NO
INTERFERENCE WITH INTERSTATE STEEL SHIPMENTS WAS CHARGED IN THE
INDICTMENT AND THAT IN ANY EVENT IT IS AN UNREASONABLE EXTENSION OF THE
ACT TO MAKE A FEDERAL OFFENSE OUT OF EXTORTION FROM A MAN MERELY
BECAUSE HE IS SUPPLYING CONCRETE TO BUILD A MILL WHICH AFTER
CONSTRUCTION WILL PRODUCE STEEL, A PART OF WHICH MAY, IF PROCESSED,
MOVE IN INTERSTATE COMMERCE. 

WE AGREE WITH THE COURT OF APPEALS THAT RIDER'S DEPENDENCE ON
SHIPMENTS OF SAND FROM OUTSIDE PENNSYLVANIA TO CARRY ON HIS READY-MIXED
CONCRETE BUSINESS ENTITLED HIM TO THE HOBBS ACT'S PROTECTION AGAINST
INTERRUPTION OR STOPPAGE OF HIS COMMERCE IN SAND BY EXTORTION OF THE
KIND THAT THE JURY FOUND THE PETITIONER HAD COMMITTED HERE.  THAT ACT
SPEAKS IN BROAD LANGUAGE, MANIFESTING A PURPOSE TO USE ALL THE
CONSTITUTIONAL POWER CONGRESS HAS TO PUNISH INTERFERENCE WITH
INTERSTATE COMMERCE BY EXTORTION, ROBBERY OR PHYSICAL VIOLENCE.  THE
ACT OUTLAWS SUCH INTERFERENCE "IN ANY WAY OR DEGREE."  18 U.S.C. SEC.
1951(A).  HAD RIDER'S BUSINESS BEEN HINDERED OR DESTROYED, INTERSTATE
MOVEMENTS OF SAND TO HIM WOULD HAVE SLACKENED OR STOPPED.  THE TRIAL
JURY WAS ENTITLED TO FIND THAT COMMERCE WAS SAVED FROM SUCH A BLOCKAGE
BY RIDER'S COMPLIANCE WITH STIRONE'S COERCIVE AND ILLEGAL DEMANDS.  IT
WAS TO FREE COMMERCE FROM SUCH DESTRUCTIVE BURDENS THAT THE HOBBS ACT
WAS PASSED.  UNITED STATES V. GREEN, 350 U.S. 415, 420. 

WHETHER PROSPECTIVE STEEL SHIPMENTS FROM THE NEW STEEL MILLS WOULD BE
ENOUGH, ALONE, TO BRING THIS TRANSACTION UNDER THE ACT IS A MORE
DIFFICULT QUESTION.  WE NEED NOT DECIDE THIS, HOWEVER, SINCE WE AGREE
WITH THE DISSENTING JUDGES IN THE COURT OF APPEALS THAT IT WAS ERROR TO
SUBMIT THAT QUESTION TO THE JURY AND THAT THE ERROR CANNOT BE DISMISSED
AS MERELY AN INSIGNIFICANT VARIANCE BETWEEN ALLEGATION AND PROOF AND
THUS HARMLESS ERROR AS IN BERGER V. UNITED STATES, 295 U.S. 78.  THE
CRIME CHARGED HERE IS A FELONY AND THE FIFTH AMENDMENT REQUIRES THAT
PROSECUTION BE BEGUN BY INDICTMENT. 

EVER SINCE EX PARTE BAIN, 121 U.S. 1, WAS DECIDED IN 1887 IT HAS BEEN
THE RULE THAT AFTER AN INDICTMENT HAS BEEN RETURNED ITS CHARGES MAY NOT
BE BROADENED THROUGH AMENDMENT EXCEPT BY THE GRAND JURY ITSELF.  IN
THAT CASE, THE COURT ORDERED THAT SOME SPECIFIC AND RELEVANT
ALLEGATIONS THE GRAND JURY HAD CHARGED BE STRICKEN FROM THE INDICTMENT
SO THAT BAIN MIGHT BE CONVICTED WITHOUT PROOF OF THOSE PARTICULAR
ALLEGATIONS.  (FN2)  IN HOLDING THAT THIS COULD NOT BE DONE, MR.
JUSTICE MILLER, SPEAKING FOR THE COURT, SAID: 

"IF IT LIES WITHIN THE PROVINCE OF A COURT TO CHANGE THE CHARGING
PART OF AN INDICTMENT TO SUIT ITS OWN NOTIONS OF WHAT IT OUGHT TO HAVE
BEEN, OR WHAT THE GRAND JURY WOULD PROBABLY HAVE MADE IT IF THEIR
ATTENTION HAD BEEN CALLED TO SUGGESTED CHANGES, THE GREAT IMPORTANCE
WHICH THE COMMON LAW ATTACHES TO AN INDICTMENT BY A GRAND JURY, AS A
PREREQUISITE TO A PRISONER'S TRIAL FOR A CRIME, AND WITHOUT WHICH THE
CONSTITUTION SAYS 'NO PERSON SHALL BE HELD TO ANSWER,' MAY BE FRITTERED
AWAY UNTIL ITS VALUE IS ALMOST DESTROYED."  121 U.S. 1, 10. 

THE COURT WENT ON TO HOLD IN BAIN: 

"THAT AFTER THE INDICTMENT WAS CHANGED IT WAS NO LONGER THE
INDICTMENT OF THE GRAND JURY WHO PRESENTED IT.  ANY OTHER DOCTRINE
WOULD PLACE THE RIGHTS OF THE CITIZEN, WHICH WERE INTENDED TO BE
PROTECTED BY THE CONSTITUTIONAL PROVISION, AT THE MERCY OR CONTROL OF
THE COURT OR PROSECUTING ATTORNEY  ...  ."  121 U.S. 1, 13. 

THE BAIN CASE, WHICH HAS NEVER BEEN DISAPPROVED, STANDS FOR THE RULE
THAT A COURT CANNOT PERMIT A DEFENDANT TO BE TRIED ON CHARGES THAT ARE
NOT MADE IN THE INDICTMENT AGAINST HIM.  SEE ALSO UNITED STATES V.
NORRIS, 281 U.S. 619, 622.  CF. CLYATT V. UNITED STATES, 197 U.S. 207,
219, 220.  YET THE COURT DID PERMIT THAT IN THIS CASE.  THE INDICTMENT
HERE CANNOT FAIRLY BE READ AS CHARGING INTERFERENCE WITH MOVEMENTS OF
STEEL FROM PENNSYLVANIA TO OTHER STATES NOR DOES THE COURT OF APPEALS
APPEAR TO HAVE SO READ IT.  THE GRAND JURY WHICH FOUND THIS INDICTMENT
WAS SATISFIED TO CHARGE THAT STIRONE'S CONDUCT INTERFERED WITH
INTERSTATE IMPORTATION OF SAND.  BUT NEITHER THIS NOR ANY OTHER COURT
CAN KNOW THAT THE GRAND JURY WOULD HAVE BEEN WILLING TO CHARGE THAT
STIRONE'S CONDUCT WOULD INTERFERE WITH INTERSTATE EXPORTATION OF STEEL
FROM A MILL LATER TO BE BUILT WITH RIDER'S CONCRETE.  AND IT CANNOT BE
SAID WITH CERTAINTY THAT WITH A NEW BASIS FOR CONVICTION ADDED, STIRONE
WAS CONVICTED SOLELY ON THE CHARGE MADE IN THE INDICTMENT THE GRAND
JURY RETURNED.  ALTHOUGH THE TRIAL COURT DID NOT PERMIT A FORMAL
AMENDMENT OF THE INDICTMENT, THE EFFECT OF WHAT IT DID WAS THE SAME. 
AND THE ADDITION CHARGING INTERFERENCE WITH STEEL EXPORTS HERE IS
NEITHER TRIVIAL, USELESS, NOR INNOCUOUS.  COMPARE FORD V. UNITED
STATES, 273 U.S. 593, 602; GOTO V. LANE, 265 U.S. 393, 402.  WHILE
THERE WAS A VARIANCE IN THE SENSE OF A VARIATION BETWEEN PLEADING AND
PROOF, THAT VARIATION HERE DESTROYED THE DEFENDANT'S SUBSTANTIAL RIGHT
TO BE TRIED ONLY ON CHARGES PRESENTED IN AN INDICTMENT RETURNED BY A
GRAND JURY.  DEPRIVATION OF SUCH A BASIC RIGHT IS FAR TOO SERIOUS TO BE
TREATED AS NOTHING MORE THAN A VARIANCE AND THEN DISMISSED AS HARMLESS
ERROR.  COMPARE BERGER V. UNITED STATES, 295 U.S. 78.  THE VERY PURPOSE
OF THE REQUIREMENT THAT A MAN BE INDICTED BY GRAND JURY IS TO LIMIT HIS
JEOPARDY TO OFFENSES CHARGED BY A GROUP OF HIS FELLOW CITIZENS ACTING
INDEPENDENTLY OF EITHER PROSECUTING ATTORNEY OR JUDGE.  (FN3)  THUS THE
BASIC PROTECTION THE GRAND JURY WAS DESIGNED TO AFFORD IS DEFEATED BY A
DEVICE OR METHOD WHICH SUBJECTS THE DEFENDANT TO PROSECUTION FOR
INTERFERENCE WITH INTERSTATE COMMERCE WHICH THE GRAND JURY DID NOT
CHARGE. 

HERE, AS THE TRIAL COURT CHARGED THE JURY, THERE ARE TWO ESSENTIAL
ELEMENTS OF A HOBBS ACT CRIME: INTERFERENCE WITH COMMERCE, AND
EXTORTION.  BOTH ELEMENTS HAVE TO BE CHARGED.  NEITHER IS SURPLUSAGE
AND NEITHER CAN BE TREATED AS SURPLUSAGE.  THE CHARGE THAT INTERSTATE
COMMERCE IS AFFECTED IS CRITICAL SINCE THE FEDERAL GOVERNMENT'S
JURISDICTION OF THIS CRIME RESTS ONLY ON THAT INTERFERENCE.  IT FOLLOWS
THAT WHEN ONLY ONE PARTICULAR KIND OF COMMERCE IS CHARGED TO HAVE BEEN
BURDENED A CONVICTION MUST REST ON THAT CHARGE AND NOT ANOTHER, EVEN
THOUGH IT BE ASSUMED THAT UNDER AN INDICTMENT DRAWN IN GENERAL TERMS A
CONVICTION MIGHT REST UPON A SHOWING THAT COMMERCE OF ONE KIND OR
ANOTHER HAD BEEN BURDENED.  THE RIGHT TO HAVE THE GRAND JURY MAKE THE
CHARGE ON ITS OWN JUDGMENT IS A SUBSTANTIAL RIGHT WHICH CANNOT BE TAKEN
AWAY WITH OR WITHOUT COURT AMENDMENT.  HERE, AS IN THE BAIN CASE, WE
CANNOT KNOW WHETHER THE GRAND JURY WOULD HAVE INCLUDED IN ITS
INDICTMENT A CHARGE THAT COMMERCE IN STEEL FROM A NONEXISTENT STEEL
MILL HAD BEEN INTERFERED WITH.  YET BECAUSE OF THE COURT'S ADMISSION OF
EVIDENCE AND UNDER ITS CHARGE THIS MIGHT HAVE BEEN THE BASIS UPON WHICH
THE TRIAL JURY CONVICTED PETITIONER.  IF SO, HE WAS CONVICTED ON A
CHARGE THE GRAND JURY NEVER MADE AGAINST HIM.  THIS WAS FATAL ERROR. 
CF. COLE V. ARKANSAS, 333 U.S. 196; DE JONGE V. OREGON, 299 U.S. 353. 
REVERSED. 

FN1  62 STAT. 793, 18 U.S.C. SEC. 1951. 

"(A)  WHOEVER IN ANY WAY OR DEGREE OBSTRUCTS, DELAYS, OR AFFECTS
COMMERCE OR THE MOVEMENT OF ANY ARTICLE OR COMMODITY IN COMMERCE, BY
ROBBERY OR EXTORTION OR ATTEMPTS OR CONSPIRES SO TO DO, OR COMMITS OR
THREATENS PHYSICAL VIOLENCE TO ANY PERSON OR PROPERTY IN FURTHERANCE OF
A PLAN OR PURPOSE TO DO ANYTHING IN VIOLATION OF THIS SECTION SHALL BE
FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TWENTY YEARS,
OR BOTH. 

"(B)  AS USED IN THIS SECTION: 

     *         *         *         * * 

"(2)  THE TERM 'EXTORTION' MEANS THE OBTAINING OF PROPERTY FROM
ANOTHER, WITH HIS CONSENT, INDUCED BY WRONGFUL USE OF ACTUAL OR
THREATENED FORCE, VIOLENCE, OR FEAR, OR UNDER COLOR OF OFFICIAL
RIGHT." 

FN2  BAIN WAS INDICTED FOR MAKING A FALSE STATEMENT "WITH INTENT TO
DECEIVE THE COMPTROLLER OF THE CURRENCY AND THE AGENT APPOINTED TO
EXAMINE THE AFFAIRS OF SAID ASSOCIATION  ...  ."  AFTER SUSTAINING
DEMURRERS OF BAIN TO THE INDICTMENT, THE TRIAL COURT WENT ON TO SAY
THAT "THEREUPON, ON MOTION OF THE UNITED STATES, BY COUNSEL, THE COURT
ORDERS THAT THE INDICTMENT BE AMENDED BY STRIKING OUT THE WORDS 'THE
COMPTROLLER OF THE CURRENCY AND' THEREIN CONTAINED."  BY THIS AMENDMENT
IT WAS INTENDED TO PERMIT CONVICTION OF BAIN WITHOUT PROOF THAT HE HAD
DECEIVED THE COMPTROLLER AS THE GRAND JURY HAD CHARGED. 

FN3  "YET THE INSTITUTION (THE GRAND JURY) WAS ADOPTED IN THIS
COUNTRY, AND IS CONTINUED FROM CONSIDERATIONS SIMILAR TO THOSE WHICH
GIVE TO IT ITS CHIEF VALUE IN ENGLAND, AND IS DESIGNED AS A MEANS, NOT
ONLY OF BRINGING TO TRIAL PERSONS ACCUSED OF PUBLIC OFFENCES UPON JUST
GROUNDS, BUT ALSO AS A MEANS OF PROTECTING THE CITIZEN AGAINST
UNFOUNDED ACCUSATION, WHETHER IT COMES FROM GOVERNMENT, OR BE PROMPTED
BY PARTISAN PASSION OR PRIVATE ENMITY.  NO PERSON SHALL BE REQUIRED,
ACCORDING TO THE FUNDAMENTAL LAW OF THE COUNTRY, EXCEPT IN THE CASES
MENTIONED, TO ANSWER FOR ANY OF THE HIGHER CRIMES UNLESS THIS BODY,
CONSISTING OF NOT LESS THAN SIXTEEN NOR MORE THAN TWENTY-THREE GOOD AND
LAWFUL MEN, SELECTED FROM THE BODY OF THE DISTRICT, SHALL DECLARE, UPON
CAREFUL DELIBERATION, UNDER THE SOLEMNITY OF AN OATH, THAT THERE IS
GOOD REASON FOR HIS ACCUSATION AND TRIAL."  EX PARTE BAIN, 121 U.S. 1,
11.  SEE ALSO COSTELLO V. UNITED STATES, 350 U.S. 359, 362, 363, N. 6. 

..END :







UNITED STATES V. ROBINSON 361 U.S. 220 


NO. 16.  ARGUED DECEMBER 8, 1959 - DECIDED JANUARY 11, 1960 - 104 U.S.
APP. D.C. 200, 260 F.2D 718, REVERSED. 


UNDER THE FEDERAL RULES OF CRIMINAL PROCEDURE, THE FILING OF A NOTICE
OF APPEAL IN A CRIMINAL CASE AFTER EXPIRATION OF THE TIME PRESCRIBED IN
RULE 37(A)(2) DOES NOT CONFER JURISDICTION UPON THE COURT OF APPEALS,
EVEN THOUGH THE DISTRICT COURT, PROCEEDING UNDER RULE 45(B), HAS FOUND
THAT THE LATE FILING OF THE NOTICE OF APPEAL WAS THE RESULT OF
"EXCUSABLE NEGLECT."  PP. 220-230. 

(A)  TO RECOGNIZE A LATE NOTICE OF APPEAL IS ACTUALLY TO "ENLARGE"
THE PERIOD FOR TAKING AN APPEAL, WHICH IS EXPLICITLY FORBIDDEN BY RULE
45(B).  PP. 224-229. 

(B)  THE POLICY QUESTION WHETHER GREATER FLEXIBILITY SHOULD BE
ALLOWED WITH RESPECT TO THE TIME FOR TAKING AN APPEAL MUST BE RESOLVED
THROUGH THE RULE-MAKING PROCESS, NOT BY JUDICIAL DECISION; AND IT
CANNOT BE RESOLVED BY THE COURT OF APPEALS.  PP. 229-230. 

UNITED STATES V. ROBINSON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS WERE INDICTED FOR MURDER IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, AND UPON A TRIAL WERE FOUND GUILTY BY A JURY OF
THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER.  AFTER THEIR MOTIONS FOR A
NEW TRIAL WERE CONSIDERED AND DENIED, THE COURT ENTERED JUDGMENT OF
CONVICTION ON MAY 7, 1958.  TWENTY-ONE DAYS THEREAFTER, ON MAY 28,
RESPONDENTS SEPARATELY FILED IN THE DISTRICT COURT THEIR NOTICES OF
APPEAL.  ON THE SAME DAY THEY EACH ASKED, AND WERE GRANTED BY THE
DISTRICT COURT, LEAVE TO PROSECUTE THEIR APPEALS IN FORMA PAUPERIS.  ON
JUNE 30, THE GOVERNMENT MOVED THE COURT OF APPEALS TO DISMISS
RESPONDENTS' APPEALS FOR WANT OF JURISDICTION, BECAUSE THEIR NOTICES OF
APPEAL WERE NOT FILED WITHIN 10 DAYS AFTER ENTRY OF THE JUDGMENT.  IN
OPPOSITION TO THE MOTION, AFFIDAVITS OF RESPONDENT TRAVIT ROBINSON, AND
OF COUNSEL FOR BOTH RESPONDENTS, WERE FILED IN THE COURT OF APPEALS. 
THEY TENDED TO SHOW THAT THE LATE FILING OF THE NOTICES OF APPEAL WAS
DUE TO A MISUNDERSTANDING AS TO WHETHER THE NOTICES WERE TO BE FILED BY
RESPONDENTS THEMSELVES OR BY THEIR COUNSEL.  (FN1) 

THE COURT OF APPEALS, ONE JUDGE DISSENTING, HELD THAT THE NOTICES OF
APPEAL, ALTHOUGH FILED 11 DAYS AFTER EXPIRATION OF THE TIME PRESCRIBED
IN RULE 37(A)(2) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, (FN2) WERE
SUFFICIENT TO CONFER JURISDICTION OF THE APPEALS IF THE DISTRICT COURT
ACTUALLY HAD FOUND, UNDER RULE 45(B), THAT THE FAILURE TO FILE THE
NOTICES OF APPEAL WITHIN 10 DAYS AFTER ENTRY OF THE JUDGMENT "WAS THE
RESULT OF EXCUSABLE NEGLECT."  BEING UNABLE TO DETERMINE FROM THE
RECORD WHETHER THE DISTRICT COURT HAD SO FOUND, THE COURT OF APPEALS,
ON OCTOBER 2, REMANDED TO THE DISTRICT COURT "FOR SUPPLEMENTATION OF
THE RECORD" ON THAT SCORE, MEANWHILE HOLDING IN ABEYANCE THE
GOVERNMENT'S MOTION TO DISMISS.  ON OCTOBER 8, THE DISTRICT COURT
"ORDERED THAT THE RECORD REFLECT THAT THE APPEALS WERE ALLOWED AND
FAILURE TO ACT WAS DUE TO EXCUSABLE NEGLECT UNDER RULE 45(B) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE."  ON NOVEMBER 5, THE COURT OF
APPEALS EN BANC, TWO JUDGES DISSENTING, DENIED THE GOVERNMENT'S
PETITION FOR REHEARING, 104 U.S. APP. D.C. 200, 260 F.2D 718.  BECAUSE
OF THE IMPORTANCE OF THE QUESTION TO THE PROPER AND UNIFORM
ADMINISTRATION OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, WE GRANTED
CERTIORARI.  358 U.S. 940. 

THE SINGLE QUESTION PRESENTED IS WHETHER THE FILING OF A NOTICE OF
APPEAL IN A CRIMINAL CASE AFTER EXPIRATION OF THE TIME PRESCRIBED IN
RULE 37(A)(2) CONFERS JURISDICTION OF THE APPEAL UPON THE COURT OF
APPEALS IF THE DISTRICT COURT, PROCEEDING UNDER RULE 45(B), HAS FOUND
THAT THE LATE FILING OF THE NOTICE OF APPEAL WAS THE RESULT OF
EXCUSABLE NEGLECT. 

THERE BEING NO DISPUTE ABOUT THE FACT THAT THE NOTICES OF APPEAL WERE
NOT FILED WITHIN THE 10-DAY PERIOD PRESCRIBED BY RULE 37(A)(2), (FN3)
THE ANSWER TO THE QUESTION PRESENTED DEPENDS UPON THE PROPER
INTERPRETATION OF RULE 45(B).  IT PROVIDES: 

"ENLARGEMENT.  WHEN AN ACT IS REQUIRED OR ALLOWED TO BE DONE AT OR
WITHIN A SPECIFIED TIME, THE COURT FOR CAUSE SHOWN MAY AT ANY TIME IN
ITS DISCRETION (1) WITH OR WITHOUT MOTION OR NOTICE, ORDER THE PERIOD
ENLARGED IF APPLICATION THEREFOR IS MADE BEFORE THE EXPIRATION OF THE
PERIOD ORIGINALLY PRESCRIBED OR AS EXTENDED BY A PREVIOUS ORDER OR (2)
UPON MOTION PERMIT THE ACT TO BE DONE AFTER THE EXPIRATION OF THE
SPECIFIED PERIOD IF THE FAILURE TO ACT WAS THE RESULT OF EXCUSABLE
NEGLECT; BUT THE COURT MAY NOT ENLARGE THE PERIOD FOR TAKING ANY ACTION
UNDER RULES 33, 34 AND 35, EXCEPT AS OTHERWISE PROVIDED IN THOSE RULES,
OR THE PERIOD FOR TAKING AN APPEAL." 

IN INTERPRETING THAT RULE, THE COURT OF APPEALS TOOK THE VIEW THAT,
ALTHOUGH "THE DISTRICT COURT HAS NO AUTHORITY TO GRANT A GREATER PERIOD
THAN TEN DAYS FOR TAKING AN (APPEAL, IT) MAY, HOWEVER, IF SATISFIED
THAT THE FAILURE TO NOTE AN APPEAL WITHIN TEN DAYS IS EXCUSABLE, PERMIT
LATE FILING."  IT THOUGHT THAT THERE WAS "AMPLE JUSTIFICATION IN REASON
FOR DIFFERENT TREATMENT OF PRE-EXPIRATION AND POST-EXPIRATION
APPLICATIONS"; THAT IF A DEFENDANT "CAN MAKE A TIMELY APPLICATION FOR
AN EXTENSION OF TIME, HE CAN READILY AND WITH LESS EFFORT FILE THE
NOTICE OF APPEAL ITSELF."  BUT IF, "FOR SOME CAUSE AMOUNTING LEGALLY TO
'EXCUSABLE NEGLECT' THE PARTY FAILS TO TAKE ANY ACTION DURING THE
PRESCRIBED TIME, THE RULE SEEMS PLAINLY TO ALLOW THE DISTRICT COURT
DISCRETION TO PERMIT HIM TO FILE A LATE NOTICE OF APPEAL."  IT THOUGHT
THAT SO DOING WOULD NOT BE TO "ENLARGE" THE PERIOD FOR TAKING AN
APPEAL, BUT RATHER WOULD BE ONLY TO "PERMIT THE ACT TO BE DONE" AFTER
EXPIRATION OF THE SPECIFIED PERIOD.  THIS CONCLUSION HAS, AT LEAST,
ENOUGH SURFACE PLAUSIBILITY TO REQUIRE A DETAILED EXAMINATION OF THE
LANGUAGE, JUDICIAL INTERPRETATIONS, AND HISTORY OF RULE 45(B) AND THE
RELATED FEDERAL RULES OF CRIMINAL PROCEDURE. 

ON ITS FACE, RULE 45(B) APPEARS TO BE QUITE PLAIN AND CLEAR.  IT
SPECIFICALLY SAYS THAT "THE COURT MAY NOT ENLARGE  ...  THE PERIOD FOR
TAKING AN APPEAL."  WE THINK THAT TO RECOGNIZE A LATE NOTICE OF APPEAL
IS ACTUALLY TO "ENLARGE" THE PERIOD FOR TAKING AN APPEAL.  GIVING THE
WORDS OF 45(B) THEIR PLAIN MEANING, IT WOULD SEEM THAT THE CONCLUSION
OF THE COURT OF APPEALS IS IN DIRECT CONFLICT WITH THAT RULE.  NO
AUTHORITY WAS CITED BY THE COURT OF APPEALS IN SUPPORT OF ITS
CONCLUSION, NOR IS ANY SUPPORTING AUTHORITY CITED BY RESPONDENTS HERE. 
THE GOVERNMENT INSISTS, IT APPEARS CORRECTLY, THAT THERE IS NO CASE
THAT SUPPORTS THE COURT OF APPEALS' CONCLUSION.  EVERY OTHER DECISION
TO WHICH WE HAVE BEEN CITED, AND THAT WE HAVE FOUND, HOLDS THAT THE
FILING OF A NOTICE OF APPEAL WITHIN THE 10-DAY PERIOD PRESCRIBED BY
RULE 37(A)(2) IS MANDATORY AND JURISDICTIONAL.  (FN4) 

IT IS QUITE SIGNIFICANT THAT RULE 45(B) NOT ONLY PROHIBITS THE COURT
FROM ENLARGING THE PERIOD FOR TAKING AN APPEAL, BUT, BY THE SAME
LANGUAGE IN THE SAME SENTENCE, ALSO PROHIBITS ENLARGEMENT OF THE PERIOD
FOR TAKING ANY ACTION UNDER RULES 33, 34 AND 35, EXCEPT AS PROVIDED IN
THOSE RULES.  THAT LANGUAGE IS:  "  ...  BUT THE COURT MAY NOT ENLARGE
THE PERIOD FOR TAKING ANY ACTION UNDER RULES 33, 34 AND 35, EXCEPT AS
OTHERWISE PROVIDED IN THOSE RULES, OR THE PERIOD FOR TAKING AN
APPEAL."  IF, AS THE COURT OF APPEALS HAS HELD, THE DELAYED FILING OF A
NOTICE OF APPEAL - FOUND TO HAVE RESULTED FROM "EXCUSABLE NEGLECT" - IS
SUFFICIENT TO CONFER JURISDICTION OF THE APPEAL, IT WOULD CONSISTENTLY
FOLLOW THAT A DISTRICT COURT MAY, UPON A LIKE FINDING, PERMIT DELAYED
FILING OF A MOTION FOR NEW TRIAL UNDER RULE 33, (FN5) OF A MOTION IN
ARREST OF JUDGMENT UNDER RULE 34, (FN6) AND THE REDUCTION OF SENTENCE
UNDER RULE 35, (FN7) AT ANY TIME - MONTHS OR EVEN YEARS - AFTER
EXPIRATION OF THE PERIODS SPECIFICALLY PRESCRIBED IN THOSE RULES. 

THIS IS NOT ONLY CONTRARY TO THE LANGUAGE OF THOSE RULES, BUT ALSO
CONTRARY TO THE DECISIONS OF THIS COURT.  IN UNITED STATES V. SMITH,
331 U.S. 469, IT WAS HELD THAT THE POWER OF THE DISTRICT COURT SUA
SPONTE TO GRANT A NEW TRIAL UNDER RULE 33 IS LIMITED TO THE TIME FIXED
IN THAT RULE.  THERE, QUITE LIKE HERE, IT WAS ARGUED "THAT BECAUSE THE
LITERAL LANGUAGE OF THE RULE PLACES THE FIVE-DAY LIMIT ONLY ON THE
MAKING OF THE MOTION (FOR A NEW TRIAL), IT DOES NOT LIMIT THE POWER OF
THE COURT LATER TO GRANT (A NEW TRIAL)  ...  ."  331 U.S., AT 473. 
THIS COURT REJECTED THE CONTENTION THAT SUCH POWER "LINGERS ON
INDEFINITELY," AND POINTED OUT THAT THE RULES, IN ABOLISHING THE
LIMITATION BASED ON THE COURT TERM, DID NOT SUBSTITUTE INDEFINITENESS,
BUT PRESCRIBED PRECISE TIMES WITHIN WHICH THE POWER OF THE COURTS MUST
BE CONFINED.  331 U.S., AT 474.  SEE ALSO MARION V. UNITED STATES, 171
F.2D 185 (C.A.  9TH CIR.); DROWN V. UNITED STATES, 198 F.2D 999 (C.A.
9TH CIR.). THE SAME RULE MUST APPLY WITH RESPECT TO THE TIME WITHIN
WHICH A MOTION IN ARREST OF JUDGMENT MAY BE FILED UNDER RULE 34. 
SIMILARLY, IT HAS BEEN HELD THAT A DISTRICT COURT MAY NOT REDUCE A
SENTENCE UNDER RULE 35 AFTER EXPIRATION OF THE 60-DAY PERIOD PRESCRIBED
BY THAT RULE REGARDLESS OF EXCUSE.  UNITED STATES V. HUNTER, 162 F.2D
644 (C.A. 7TH CIR.).  CR. AFFRONTI V. UNITED STATES, 350 U.S. 79. 

THE RIGHT OF APPEAL IN CRIMINAL CASES IN FEDERAL COURTS IS OF
RELATIVELY RECENT ORIGIN.  CARROLL V. UNITED STATES, 354 U.S. 394,
400.  BY THE ACT OF FEBRUARY 24, 1933, 47 STAT. 904 (NOW 18 U.S.C. SEC.
3772) CONGRESS FIRST GAVE THIS COURT AUTHORITY TO PROMULGATE RULES
REGULATING THE TIME AND MANNER FOR TAKING APPEALS IN CRIMINAL CASES. 
ONE OF THE PRINCIPAL PURPOSES WAS TO ELIMINATE DELAYS IN SUCH APPEALS. 
H.R. REP. NO. 2047, 72D CONG., 2D SESS., TO ACCOMPANY S. 4020.  THE
FIRST CRIMINAL APPEALS RULES PROMULGATED UNDER THAT ACT WERE THE 13
RULES EFFECTIVE SEPTEMBER 1, 1934.  292 U.S. 661-670.  RULE III
PROVIDED A 5-DAY TIME LIMIT FOR THE TAKING OF AN APPEAL FROM A JUDGMENT
OF CONVICTION.  IT WAS UNIFORMLY HELD THAT RULE III WAS MANDATORY AND
JURISDICTIONAL, AND APPEALS NOT TAKEN WITHIN THAT TIME APPEAR ALWAYS TO
HAVE BEEN DISMISSED REGARDLESS OF EXCUSE.  (FN8) 

FROM THIS REVIEW, IT WOULD SEEM THAT THERE IS NOTHING IN THE LANGUAGE
OF RULE 45(B), OR IN THE JUDICIAL INTERPRETATIONS OF THAT RULE OR ITS
PREDECESSOR, WHICH SUPPORTS THE CONCLUSION OF THE COURT OF APPEALS.  WE
TURN, THEN, TO THE HISTORY OF RULE 45(B) TO SEE WHETHER ANY SUPPORT FOR
THE COURT'S CONCLUSION CAN BE FOUND IN THAT SOURCE. 

UNDER THE ACT OF JUNE 29, 1940, 54 STAT. 688, AS AMENDED (NOW 18
U.S.C. SEC. 3771), THIS COURT WAS AUTHORIZED TO PRESCRIBE RULES OF
CRIMINAL PROCEDURE TO AND INCLUDING VERDICT, WHICH WOULD BECOME
EFFECTIVE UPON PASSIVE ACCEPTANCE BY CONGRESS.  UNDER THAT ACT AND THE
PREVIOUS AUTHORITY (THE ACT OF FEBRUARY 24, 1933, 47 STAT. 904 - NOW 18
U.S.C. SEC. 3772), AND WITH THE AID OF AN ADVISORY COMMITTEE, THIS
COURT PROMULGATED THE FEDERAL RULES OF CRIMINAL PROCEDURE.  RULES 32
THROUGH 39 WERE MADE EFFECTIVE BY ORDER OF THE COURT, 327 U.S. 825, AND
THE REMAINING RULES BECAME EFFECTIVE BY ACCEPTANCE OF CONGRESS.  WHAT
ARE NOW RULES 37(A)(2) AND 45(B) UNDERWENT A NUMBER OF DRAFT CHANGES
BEFORE ADOPTION.  THE FIRST PRELIMINARY DRAFT OF RULE 37(A)(2) CHANGED
FROM 5 DAYS TO 10 DAYS THE TIME LIMIT FOR THE TAKING OF AN APPEAL, BUT
OF MORE SIGNIFICANCE IS THE FACT THAT THE PRELIMINARY DRAFT OF THAT
RULE STATED, IN EFFECT, THAT WHEN A COURT IMPOSES SENTENCE UPON A
DEFENDANT, REPRESENTED BY APPOINTED COUNSEL OR NOT REPRESENTED BY ANY
COUNSEL, THE COURT SHALL ASK THE DEFENDANT WHETHER HE WISHES TO APPEAL
AND, IF HE ANSWERS IN THE AFFIRMATIVE, "THE COURT SHALL DIRECT THE
CLERK FORTHWITH TO PREPARE, FILE, AND SERVE ON BEHALF OF THE DEFENDANT
A NOTICE OF APPEAL OR SHALL EXTEND THE TIME SPECIFIED BY RULE FOR THE
FILING OF A NOTICE OF APPEAL."  (FN9)  IN CONFORMITY WITH THAT DRAFT
PROPOSAL, THE PRELIMINARY DRAFT OF WHAT IS NOW RULE 45(B) (FN10)
STATED: "  ...  BUT IT MAY NOT ENLARGE  ...  THE PERIOD FOR TAKING AN
APPEAL EXCEPT AS PROVIDED IN RULE 35(A)(2)."  THE LIMITED PROVISION FOR
AN EXTENSION OF THE TIME WITHIN WHICH TO APPEAL THAT WAS CONTAINED IN
THE FIRST PRELIMINARY DRAFT OF THOSE RULES WAS ELIMINATED BY THE SECOND
PRELIMINARY DRAFT (FN11) AND NEVER REAPPEARED.  THIS SEEMS ALMOST
CONCLUSIVELY TO SHOW A DELIBERATE INTENTION TO ELIMINATE ANY POWER OF
THE COURTS TO EXTEND THE TIME FOR THE TAKING OF AN APPEAL. 

BUT THERE IS MORE.  THE PROTOTYPE FOR RULE 45(B) WAS RULE 6 OF THE
FEDERAL RULES OF CIVIL PROCEDURE.  (FN12)  WHEN THE ORIGINAL CRIMINAL
RULES WERE BEING PREPARED, THE LIMITING CLAUSE OF RULE 6(B) OF THE
FEDERAL RULES OF CIVIL PROCEDURE STATED:  "  ... BUT IT MAY NOT ENLARGE
THE PERIOD FOR TAKING ANY ACTION UNDER RULE 59, EXCEPT AS STATED IN
SUBDIVISION (C) THEREOF, OR THE PERIOD FOR TAKING AN APPEAL AS PROVIDED
BY LAW."  IT HAD CONSISTENTLY BEEN HELD THAT CIVIL RULE 6(B) WAS
MANDATORY AND JURISDICTIONAL AND COULD NOT BE EXTENDED REGARDLESS OF
EXCUSE.  (FN13)  IT MUST BE PRESUMED THAT THE ADVISORY COMMITTEE AND
THE JUSTICES OF THIS COURT WERE AWARE OF THE LIMITING LANGUAGE OF CIVIL
RULE 6(B) AND OF THE JUDICIAL CONSTRUCTION IT HAD RECEIVED WHEN THEY
PREPARED AND ADOPTED THE FEDERAL RULES OF CRIMINAL PROCEDURE.  NO
SUPPORT FOR THE CONCLUSION OF THE COURT OF APPEALS CAN BE FOUND IN THIS
HISTORY OF RULE 45(B). 

RULE 45(B) SAYS IN PLAIN WORDS THAT "  ...  THE COURT MAY NOT ENLARGE
...  THE PERIOD FOR TAKING AN APPEAL."  THE COURTS HAVE UNIFORMLY HELD
THAT THE TAKING OF AN APPEAL WITHIN THE PRESCRIBED TIME IS MANDATORY
AND JURISDICTIONAL.  THE HISTORY OF RULE 45(B) SHOWS THAT CONSIDERATION
WAS GIVEN TO THE MATTER OF VESTING A LIMITED DISCRETION IN THE COURTS
TO GRANT AN EXTENSION OF TIME FOR THE TAKING OF AN APPEAL, BUT, UPON
FURTHER CONSIDERATION, THE IDEA WAS DELIBERATELY ABANDONED.  IT FOLLOWS
THAT THE PLAIN WORDS, THE JUDICIAL INTERPRETATIONS, AND THE HISTORY, OF
RULE 45(B) NOT ONLY FAIL TO SUPPORT, BUT ACTUALLY OPPOSE, THE
CONCLUSION OF THE COURT OF APPEALS, AND THEREFORE ITS JUDGMENT CANNOT
STAND.    THAT POWERFUL POLICY ARGUMENTS MAY BE MADE BOTH FOR AND
AGAINST GREATER FLEXIBILITY WITH RESPECT TO THE TIME FOR THE TAKING OF
AN APPEAL IS INDEED EVIDENT.  BUT THAT POLICY QUESTION, INVOLVING, AS
IT DOES, MANY WEIGHTY AND CONFLICTING CONSIDERATIONS, MUST BE RESOLVED
THROUGH THE RULE-MAKING PROCESS AND NOT BY JUDICIAL DECISION.  UNITED
STATES V. ISTHMIAN S.S. CO., 359 U.S. 314.  IF, BY THAT PROCESS, THE
COURTS ARE EVER GIVEN POWER TO EXTEND THE TIME FOR THE FILING OF A
NOTICE OF APPEAL UPON A FINDING OF EXCUSABLE NEGLECT, IT SEEMS
REASONABLE TO THINK THAT SOME DEFINITE LIMITATION UPON THE TIME WITHIN
WHICH THEY MIGHT DO SO WOULD BE PRESCRIBED; FOR OTHERWISE, AS UNDER THE
DECISION OF THE COURT BELOW, MANY APPEALS MIGHT - ALMOST SURELY WOULD -
BE INDEFINITELY DELAYED.   CERTAINLY THAT POSSIBILITY WOULD
UNNECESSARILY (FN14) PRODUCE INTOLERABLE UNCERTAINTY AND CONFUSION. 
WHATEVER MAY BE THE PROPER RESOLUTION OF THE POLICY QUESTION INVOLVED,
IT WAS BEYOND THE POWER OF THE COURT OF APPEALS TO RESOLVE IT.
REVERSED. 

FN1  TRAVIT ROBINSON'S AFFIDAVIT WAS, IN ESSENCE, AS FOLLOWS:  ON
"THE DAY OF SENTENCING, I ADVISED MY ATTORNEY THAT I WAS GOING TO
APPEAL THE CASE  ...  .  I HAD TOLD HIM THAT FROM (WHAT) OTHER INMATES
AT THE DISTRICT JAIL (HAD TOLD ME) I KNEW I COULD APPEAL THE JUDGMENT
BUT (I) DID NOT FILE THE NECESSARY APPEAL PAPER, THINKING THAT MY
ATTORNEY WOULD DO IT, WHILE I NOW (UNDERSTAND) HE THOUGHT I WOULD DO IT
... .  WE MISUNDERSTOOD EACH OTHER AND I NOW FIND THAT I GAVE HIM THE
WRONG IMPRESSION AS TO WHAT I WANTED DONE AND THAT HE MISUNDERSTOOD
WHAT I WAS GOING TO DO OR WANTED TO DO." 

THE AFFIDAVIT OF RESPONDENTS' COUNSEL SUBSTANTIALLY CONFORMED TO
TRAVIT ROBINSON'S AFFIDAVIT AND FURTHER RECITED:  "I WAS UNDER THE
IMPRESSION THAT HE WAS GOING TO (FILE THE NOTICE OF APPEAL) WITHOUT ME,
(AND ALSO) I NEGLECTED TO DIFFERENTIATE THE RULES AS TO APPEALING THIS
TYPE OF A CASE (FROM THE RULES APPLYING TO THE APPEAL) OF A CIVIL
CASE." 

FN2  ALL REFERENCES TO RULES ARE TO THE FEDERAL RULES OF CRIMINAL
PROCEDURE UNLESS OTHERWISE STATED. 

FN3  RULE 37(A)(2) OF FED. RULES CRIM. PROC. PROVIDES: 

"TIME FOR TAKING APPEAL.  AN APPEAL BY A DEFENDANT MAY BE TAKEN
WITHIN 10 DAYS AFTER ENTRY OF THE JUDGMENT OR ORDER APPEALED FROM, BUT
IF A MOTION FOR A NEW TRIAL OR IN ARREST OF JUDGMENT HAS BEEN MADE
WITHIN THE 10-DAY PERIOD AN APPEAL FROM A JUDGMENT OF CONVICTION MAY BE
TAKEN WITHIN 10 DAYS AFTER ENTRY OF THE ORDER DENYING THE MOTION.  WHEN
A COURT AFTER TRIAL IMPOSES SENTENCE UPON A DEFENDANT NOT REPRESENTED
BY COUNSEL, THE DEFENDANT SHALL BE ADVISED OF HIS RIGHT TO APPEAL AND
IF HE SO REQUESTS, THE CLERK SHALL PREPARE AND FILE FORTHWITH A NOTICE
OF APPEAL ON BEHALF OF THE DEFENDANT  ...  ." 

FN4  SEE, E.G., MARTIN V. UNITED STATES, 263 F.2D 516 (C.A. 10TH
CIR.); BRYANT V. UNITED STATES, 261 F.2D 229 (C.A. 6TH CIR.); UNITED
STATES V. ISABELLA, 251 F.2D 223 (C.A.2D CIR.); BANKS V. UNITED STATES,
240 F.2D 302 (C.A. 9TH CIR.); WAGNER V. UNITED STATES, 220 F.2D 513
(C.A. 4TH CIR.); KIRKSEY V. UNITED STATES, 94 U.S. APP. D.C. 393, 219
F.2D 499; BRANT V. UNITED STATES, 210 F.2D 470 (C.A. 5TH CIR.);
MCINTOSH V. UNITED STATES, 204 F.2D 545 (C.A.  5TH CIR.); MARION V.
UNITED STATES, 171 F.2D 185 (C.A. 9TH CIR.); SWIHART V. UNITED STATES,
169 F.2D 808 (C.A. 10TH CIR.); UNITED STATES V. FROEHLICH, 166 F.2D 84
(C.A.2D CIR.). 

IT IS THUS MADE TO APPEAR THAT THE COURT BELOW HAS ITSELF RECOGNIZED
AND ENFORCED THIS RULE IN KIRKSEY V. UNITED STATES, SUPRA, AS IT DID
ALSO IN RICHARDS V. UNITED STATES, 89 U.S. APP. D.C. 354, N. 2, AT 356,
192 F.2D 602, N. 2, AT 604. 

FN5  RULE 33 OF FED. RULES CRIM. PROC., IN PERTINENT PART, PROVIDES: 

"  ...  A MOTION FOR A NEW TRIAL BASED ON THE GROUND OF NEWLY
DISCOVERED EVIDENCE MAY BE MADE ONLY BEFORE OR WITHIN TWO YEARS AFTER
FINAL JUDGMENT, BUT IF AN APPEAL IS PENDING THE COURT MAY GRANT THE
MOTION ONLY ON REMAND OF THE CASE.  A MOTION FOR A NEW TRIAL BASED ON
ANY OTHER GROUNDS SHALL BE MADE WITHIN 5 DAYS AFTER VERDICT OR FINDING
OF GUILTY OR WITHIN SUCH FURTHER TIME AS THE COURT MAY FIX DURING THE 5
DAY PERIOD." 

FN6  RULE 34 OF FED. RULES CRIM. PROC. PROVIDES: 

"THE COURT SHALL ARREST JUDGMENT IF THE INDICTMENT OR INFORMATION
DOES NOT CHARGE AN OFFENSE OR IF THE COURT WAS WITHOUT JURISDICTION OF
THE OFFENSE CHARGED.  THE MOTION IN ARREST OF JUDGMENT SHALL BE MADE
WITHIN 5 DAYS AFTER DETERMINATION OF GUILT OR WITHIN SUCH FURTHER TIME
AS THE COURT MAY FIX DURING THE 5-DAY PERIOD." 

FN7  RULE 35 OF FED. RULES CRIM. PROC. PROVIDES: 

"THE COURT MAY CORRECT AN ILLEGAL SENTENCE AT ANY TIME.  THE COURT
MAY REDUCE A SENTENCE WITHIN 60 DAYS AFTER THE SENTENCE IS IMPOSED, OR
WITHIN 60 DAYS AFTER RECEIPT BY THE COURT OF A MANDATE ISSUED UPON
AFFIRMANCE OF THE JUDGMENT OR DISMISSAL OF THE APPEAL, OR WITHIN 60
DAYS AFTER RECEIPT OF AN ORDER OF THE SUPREME COURT DENYING AN
APPLICATION FOR A WRIT OF CERTIORARI." 

FN8  SEE, E.G., NIX V. UNITED STATES, 131 F.2D 857 (C.A. 5TH CIR.);
UNITED STATES V. INFUSINO, 131, F.2D 617 (C.A. 7TH CIR.); MILLER V.
UNITED STATES, 104 F.2D 343 (C.A. 5TH CIR.); UNITED STATES V. TOUSEY,
101 F.2D 892 (C.A. 7TH CIR.); O'GWIN V. UNITED STATES, 90 F.2D 494
(C.A. 9TH CIR.); BURR V. UNITED STATES, 86 F.2D 502 (C.A. 7TH CIR.);
FEWOX V. UNITED STATES, 77 F.2D 699 (C.A. 5TH CIR.).  AND COMPARE
UNITED STATES EX REL. COY V. UNITED STATES, 316 U.S. 342, AND UNITED
STATES V. HARK, 320 U.S. 531, 533. 

FN9  FEDERAL RULES OF CRIMINAL PROCEDURE, PRELIMINARY DRAFT, WITH
NOTES AND FORMS, PREPARED BY THE ADVISORY COMMITTEE ON RULES OF
CRIMINAL PROCEDURE, UNITED STATES GOVERNMENT PRINTING OFFICE, 1943,
APPEAL RULE THEN NO. 35(A)(2), P. 152. 

FN10  WHAT BECAME RULE 45(B) WAS THEN TREATED AS RULE 41(B).  ID., AT
P. 179.  THE NOTE TO THIS PROPOSED RULE STATED THAT IT "  ...  IS AN
ADAPTATION FOR ALL CRIMINAL PROCEEDINGS OF FED. RULES CIV. PROC., RULE
6 (TIME)."  ID., AT P. 180. 

FN11  FEDERAL RULES OF CRIMINAL PROCEDURE, SECOND PRELIMINARY DRAFT,
WITH NOTES AND FORMS, PREPARED BY THE ADVISORY COMMITTEE ON RULES OF
CRIMINAL PROCEDURE, UNITED STATES GOVERNMENT PRINTING OFFICE, FEBRUARY
1944, APPEAL RULE THEN NO. 39(A)(2), P. 135. 

FN12  THE NOTES OF ADVISORY COMMITTEE ON RULES OF CRIMINAL PROCEDURE
(RULE 45), STATE, "THE RULE IS IN SUBSTANCE THE SAME AS RULE 6 OF THE
FEDERAL RULES OF CIVIL PROCEDURE  ...  ." 

FN13  UNITED DRUG CO. V. HELVERING, 108 F.2D 637 (C.A.2D CIR.);
ALEXANDER V. SPECIAL SCHOOL DISTRICT OF BOONEVILLE, 132 F.2D 355 (C.A.
8TH CIR.); TINKOFF V. WEST PUBLISHING CO., 138 F.2D 607 (C.A. 7TH
CIR.); LAMB V. SHASTA OIL CO., 149 F.2D 729 (C.A. 5TH CIR.); FEDERAL
DEPOSIT INSURANCE CORPORATION V. CONGREGATION POILEY TZEDECK, 159 F.2D
163 (C.A.2D CIR.). 

FN14  THE ALLOWANCE OF AN APPEAL MONTHS OR YEARS AFTER EXPIRATION OF
THE PRESCRIBED TIME SEEMS UNNECESSARY FOR THE ACCOMPLISHMENT OF
SUBSTANTIAL JUSTICE, FOR THERE ARE A NUMBER OF COLLATERAL REMEDIES
AVAILABLE TO REDRESS DENIAL OF BASIC RIGHTS.  EXAMPLES ARE:  THE POWER
OF A DISTRICT COURT UNDER RULE 35 TO CORRECT AN ILLEGAL SENTENCE AT ANY
TIME, AND TO REDUCE A SENTENCE WITHIN 60 DAYS AFTER THE JUDGMENT OF
CONVICTION BECOMES FINAL; THE POWER OF A DISTRICT COURT TO ENTERTAIN A
COLLATERAL ATTACK UPON A JUDGMENT OF CONVICTION AND TO VACATE, SET
ASIDE OR CORRECT THE SENTENCE UNDER 28 U.S.C. SEC. 2255; AND
PROCEEDINGS BY WAY OF WRIT OF ERROR CORAM NOBIS. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT, AS THEY SHARE THE
VIEW OF JUDGE BAZELON, 104 U.S. APP. D.C. 200, 201, 260 F.2D 718, 719,
THAT AN EXTENSION OF TIME, GRANTED AFTER THE 10-DAY PERIOD FOR AN
APPEAL HAS PASSED, IS NOT AN "ENLARGEMENT" OF THE TIME IN THE NARROW
SENSE IN WHICH RULE 45(B) USES THE WORD. 
..END :






MITCHELL V. OREGON FROZEN FOODS CO. 361 U.S. 231 


NO. 33.  ARGUED NOVEMBER 17, 1959 - DECIDED JANUARY 11, 1960 - REPORTED
BELOW:  254 F.2D 116. 


IN VIEW OF AMBIGUITIES IN THE RECORD AS TO THE ISSUES, CERTIORARI
DISMISSED AS IMPROVIDENTLY GRANTED. 

MITCHELL, SECRETARY OF LABOR, V. OREGON FROZEN FOODS CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

IN VIEW OF AMBIGUITIES IN THE RECORD AS TO THE ISSUES SOUGHT TO BE
TENDERED, MADE APPARENT IN ORAL ARGUMENT AND THE MEMORANDA OF COUNSEL
SUBSEQUENTLY FILED AT THE COURT'S REQUEST, THE WRIT OF CERTIORARI IS
DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







STUART V. WILSON 361 U.S. 232 


NO. 495.  DECIDED JANUARY 11, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


STUART ET AL. V. WILSON, ATTORNEY GENERAL OF TEXAS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF TEXAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















LEWIS V. MOORE 361 U.S. 232 


NO. 540.  DECIDED JANUARY 11, 1960 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  250 N.C. 77, 108 S.E.2D
26. 


LEWIS V. MOORE ET AL. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















IN RE SARNER 361 U.S. 233 


NO. 490.  DECIDED JANUARY 11, 1960 - APPEAL DISMISSED - REPORTED BELOW:
30 N.J. 566, 154 A.2D 452. 


IN RE SARNER. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO USE THE RECORD IN NO. 803, OCTOBER TERM 1958, IS
GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED
AS MOOT. 
..END :
















IN RE MCDANIEL 361 U.S. 233 


NO. 252, MISC.  DECIDED JANUARY 11, 1960 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


IN RE MCDANIEL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BRAEN V. PFEIFER TRANSPORTATION CO. 361 U.S. 129 


NO. 32.  ARGUED NOVEMBER 16, 1959.  - DECIDED DECEMBER 14, 1959.  - 263
F.2D 147, REVERSED. 


PETITIONER, A MATE ON RESPONDENT'S BARGE, WAS ORDERED TO DO SOME
CARPENTRY WORK ON A RAFT USED TO FACILITATE CHIPPING, PAINTING AND
WELDING ON RESPONDENT'S VESSELS BUT WHICH WAS NOT BEING USED AT THE
TIME TO REPAIR THE BARGE ON WHICH PETITIONER WAS MATE.  WHILE ON A
CATWALK USED TO BOARD OR LEAVE THE BARGE AND WHILE ATTEMPTING TO MOVE
THE RAFT INTO POSITION FOR BOARDING PREPARATORY TO CARRYING OUT THIS
ORDER, PETITIONER WAS INJURED WHEN THE CATWALK GAVE WAY.  HELD:  HE WAS
INJURED WHILE ACTING "IN THE COURSE OF HIS EMPLOYMENT" AND HE WAS
ENTITLED TO RECOVER FROM RESPONDENT UNDER THE JONES ACT.  PP. 129-133. 

(A)  AT THE TIME OF HIS INJURY, PETITIONER HAD A STATUS AS A SEAMAN
AND AS A MEMBER OF THE CREW OF HIS VESSEL.  PP. 131-132. 

(B)  THE FACT THAT HE WAS INJURED WHILE NOT ON HIS VESSEL IS
IMMATERIAL.  PP. 132-133. 

(C)  PETITIONER WAS ACTING "IN THE COURSE OF HIS EMPLOYMENT," WITHIN
THE MEANING OF THE JONES ACT.   P. 133. 

BRAEN V. PFEIFER OIL TRANSPORTATION CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS SUIT UNDER THE JONES ACT, 46 U.S.C. SEC. 688,
AND RECOVERED JUDGMENT AFTER A JURY TRIAL.  HE WAS EMPLOYED AS MATE ON
RESPONDENT'S BARGE.  ON THE DAY PRIOR TO THE INJURY THE BARGE CAME TO
RESPONDENT'S REPAIR YARD TO HAVE A CARGO PUMP FIXED.  AT THIS REPAIR
YARD RESPONDENT MAINTAINED A COVERED LIGHTER, KNOWN AS THE WINISOOK,
WHICH WAS USED AS A WORK BARGE.  ITS INSHORE SIDE WAS CONNECTED WITH
THE DOCK BY A PLANK RUNWAY.  BETWEEN THE WINISOOK AND THE DOCK WAS A
RAFT USED FOR CHIPPING, PAINTING, AND WELDING ON SUCH BARGES AS MIGHT
NEED THAT SERVICE.  THE BARGE ON WHICH PETITIONER WORKED WAS NOT AT
THIS TIME BEING SERVICED BY THE RAFT.  BUT THE RAFT HAD BEEN USED IN
REPAIR WORK ON THE BARGE AT OTHER TIMES AND NOW NEEDED NEW DECKING. 

THE BARGE WAS MOORED TO ADJOIN THE OPEN WATER SIDE OF THE WINISOOK,
THE CREW OF THE BARGE USING A CATWALK AROUND THE SIDES OF THE WINISOOK
WHENEVER THEY LEFT OR BOARDED THE BARGE.  THE MORNING AFTER THE BARGE
WAS MOORED, PETITIONER'S SUPERVISOR ORDERED HIM TO LAY SOME DECKING ON
THE RAFT, AS PETITIONER HAD EXPERIENCE AS A CARPENTER.  PETITIONER
ACCORDINGLY PREPARED TO GO TO WORK ON THIS NEW JOB ASSIGNMENT.  AS HE
WAS STANDING ON THE CATWALK, PREPARATORY TO STARTING HIS WORK,
RELEASING A LINE ON THE RAFT TO PERMIT HIM TO MANEUVER IT INTO PLACE SO
HE COULD BOARD IT, THE CATWALK GAVE WAY, CAUSING THE INJURY.  THE COURT
OF APPEALS REVERSED THE JUDGMENT FOR PETITIONER.  263 F.2D 147.  WE
GRANTED THE PETITION FOR CERTIORARI BECAUSE THAT DECISION SEEMED TO BE
OUT OF LINE WITH THE AUTHORITIES.  359 U.S. 952. 

IN O'DONNELL V. GREAT LAKES CO., 318 U.S. 36, A SEAMAN WAS ALLOWED TO
RECOVER UNDER THE JONES ACT EVEN THOUGH HE WAS INJURED ON SHORE.  THE
SEAMAN WAS A DECKHAND.  THE SHIP WAS DISCHARGING HER CARGO THROUGH A
CONDUIT THAT WAS CONNECTED AT ITS OUTER END TO A LAND PIPE BY MEANS OF
A GASKET.  THE SEAMAN IN QUESTION WAS ORDERED BY THE MASTER TO GO
ASHORE TO ASSIST IN REPAIRING THE GASKET.  WHILE SO ENGAGED, HE WAS
INJURED BY REASON OF THE NEGLIGENCE OF A FELLOW EMPLOYEE.  WE HELD THAT
THE WORDS "IN THE COURSE OF HIS EMPLOYMENT" AS USED IN THE JONES ACT
WERE NOT RESTRICTED TO INJURIES OCCURRING ON NAVIGABLE WATERS, THAT
THEY WERE BROADLY USED BY CONGRESS IN SUPPORT OF "ALL THE
CONSTITUTIONAL POWER IT POSSESSED," ID., AT 39, AND THAT IT WAS
CONSTITUTIONALLY PERMISSIBLE FOR CONGRESS TO SUPPLEMENT THE REMEDY OF
MAINTENANCE AND CURE BY EXTENDING A RIGHT OF RECOVERY IN TRIAL BY JURY
TO A SEAMAN INJURED "WHILE IN THE SERVICE OF HIS VESSEL BY
NEGLIGENCE."  ID., AT 43. 

THE TEST, AS THE O'DONNELL CASE HOLDS, IS NOT WHETHER THE INJURY
OCCURRED ON NAVIGABLE WATERS, FOR THAT HAD BEEN APPLIED BY THE LOWER
COURT, ID., AT 38, WHICH WE REVERSED.  RATHER IT IS WHETHER THE SEAMAN
WAS INJURED BY NEGLIGENCE WHILE "IN THE COURSE OF HIS EMPLOYMENT." 

THE INJURED PARTY MUST OF COURSE HAVE "STATUS AS A MEMBER OF THE
VESSEL" FOR IT IS SEAMEN, NOT OTHERS WHO MAY WORK ON THE VESSEL
(SWANSON V. MARRA BROS., 328 U.S. 1, 4), TO WHOM CONGRESS EXTENDED THE
PROTECTION OF THE JONES ACT.  NICE QUESTIONS OFTEN ARISE CONCERNING THE
STATUS OF PARTICULAR WORKMEN AND WHETHER THEIR DUTIES GIVE THEM THE
STATUS OF "SEAMEN" AS THAT WORD IS USED IN THE ACT.  DESPER V. STARVED
ROCK FERRY CO., 342 U.S. 187.  AND SEE GIANFALA V. TEXAS CO., 350 U.S.
879, REVERSING 222 F.2D 382; SENKO V. LACROSSE DREDGING CORP., 352 U.S.
370; BUTLER V. WHITEMAN, 356 U.S. 271.  THE COURT BELOW APPARENTLY
THOUGHT THAT AT THE MOMENT PETITIONER WAS INJURED HE WAS NOT A
"SEAMAN"; AND THAT CONCLUSION APPARENTLY TURNED ON ITS VIEW THAT TO BE
SUCH HE HAD TO BE ENGAGED AT THE TIME OF THE INJURY IN WORK WHICH WAS
IN FURTHERANCE OF THE NAVIGATION OF THE VESSEL.  THE COURT, INDEED,
HELD IT ERROR NOT TO HAVE GIVEN INSTRUCTIONS TO THAT EFFECT. 

AT TIMES THE WORK DONE BY AN EMPLOYEE WILL BE CRUCIAL IN DETERMINING
WHAT HIS STATUS IS FOR PURPOSES OF RECOVERY.  SOUTH CHICAGO CO. V.
BASSETT, 309 U.S. 251, 260; SWANSON V. MARRA BROS., SUPRA; DESPER V.
STARVED ROCK FERRY CO., SUPRA; PENNSYLVANIA R. CO. V. O'ROURKE, 344
U.S. 334; GRIMES V. RAYMOND CONCRETE PILE CO., 356 U.S. 252; BUTLER V.
WHITEMAN, SUPRA.  THOSE CASES, HOWEVER, ARE NOT RELEVANT TO OUR PRESENT
PROBLEM SINCE THE QUESTION WHETHER PETITIONER'S DUTIES ON THE RAFT
ASSIGNMENT WERE OF THE TYPE TO BRING ONE NOT OTHERWISE A MEMBER OF A
SHIP'S CREW WITHIN THE SCOPE OF THE ACT IS NOT PRESENTED IN THIS CASE. 
HERE WE START WITH AN EMPLOYEE WHO HAD THE STATUS OF MATE.  THE ISSUE
IS WHETHER PETITIONER, A MATE AND THEREFORE A "SEAMAN," WAS INJURED "IN
THE COURSE OF HIS EMPLOYMENT."  WE CONCLUDE THAT HE WAS. 

THE FACT THAT THE INJURY DID NOT OCCUR ON THE VESSEL IS NOT
CONTROLLING, AS SENKO V. LACROSSE DREDGING CORP., SUPRA, 373, HOLDS.  A
"SEAMAN" MAY OFTEN BE SENT OFF SHIP TO PERFORM DUTIES OF HIS
EMPLOYMENT.  O'DONNELL V. GREAT LAKES CO., SUPRA.  IN MARCEAU V. GREAT
LAKES TRANSIT CORP., 146 F.2D 416, A SHIP'S COOK WAS ALLOWED TO RECOVER
UNDER THE JONES ACT WHEN, PURSUANT TO DUTY, HE WAS RETURNING TO THE
SHIP AND WAS INJURED ON THE DOCK WHILE APPROACHING A LADDER USED AS
INGRESS TO THE VESSEL. 

WE HELD THAT A SEAMAN WHO WAS INJURED ON THE DOCK WHILE DEPARTING
FROM THE SHIP ON SHORE LEAVE WAS IN THE SERVICE OF THE VESSEL AND WAS
ENTITLED TO RECOVER FOR MAINTENANCE AND CURE IN AGUILAR V. STANDARD OIL
CO., 318 U.S. 724.  IT WAS THERE RECOGNIZED THAT A SEAMAN IS AS MUCH IN
THE SERVICE OF HIS SHIP WHEN BOARDING IT ON FIRST REPORTING FOR DUTY,
QUITTING IT ON BEING DISCHARGED, OR GOING TO AND FROM THE SHIP WHILE ON
SHORE LEAVE, AS HE IS WHILE ON BOARD AT HIGH SEA.  ID., AT 736-737.  WE
ALSO HELD THAT A SEAMAN INJURED IN A DANCE HALL WHILE ON SHORE LEAVE
WAS IN THE SERVICE OF HIS SHIP IN WARREN V. UNITED STATES, 340 U.S.
523, 529.  THESE TWO CASES WERE NOT BROUGHT UNDER THE JONES ACT BUT
INVOLVED MAINTENANCE AND CURE.  YET THEY MAKE CLEAR THAT THE SCOPE OF A
SEAMAN'S EMPLOYMENT OR THE ACTIVITIES WHICH ARE RELATED TO THE
FURTHERANCE OF THE VESSEL ARE NOT MEASURED BY THE STANDARDS APPLIED TO
LAND-BASED EMPLOYMENT RELATIONSHIPS.  THEY ALSO SUPPLY RELEVANT GUIDES
TO THE MEANING OF THE TERM "COURSE OF EMPLOYMENT" UNDER THE ACT SINCE
IT IS THE EQUIVALENT OF THE "SERVICE OF THE SHIP" FORMULA USED IN
MAINTENANCE AND CURE CASES.  SEE GILMORE AND BLACK, THE LAW OF
ADMIRALTY, P. 284.  AND SEE O'DONNELL V. GREAT LAKES CO., SUPRA, AT 43;
MARCEAU V. GREAT LAKES TRANSIT CORP., SUPRA. 

PETITIONER IN THE PRESENT CASE WAS ORDERED BY A SUPERIOR TO PERFORM
SOME CARPENTRY WORK ON A RAFT WHICH LAY BETWEEN THE LIGHTER AND THE
DOCK.  PETITIONER WAS INJURED, AS WE HAVE SAID, WHILE ON THE CATWALK
ATTEMPTING TO MOVE THE RAFT INTO POSITION FOR BOARDING.  THE RAFT WAS
USED TO FACILITATE CHIPPING, PAINTING AND WELDING ON RESPONDENT'S
VESSELS.  CF.  GRANT SMITH-PORTER CO. V. ROHDE, 257 U.S. 469.  NEW
DECKING WAS TO BE INSTALLED ON THE RAFT.  THE FACT THAT THE RAFT WAS
NOT PRESENTLY BEING USED TO REPAIR RESPONDENT'S BARGE IS IN OUR VIEW
IMMATERIAL.  PETITIONER WAS ACTING "IN THE COURSE OF HIS EMPLOYMENT" AT
THE TIME OF THE INJURY, FOR AT THAT MOMENT HE WAS DOING THE WORK OF HIS
EMPLOYER PURSUANT TO HIS EMPLOYER'S ORDERS.  NO MORE IS REQUIRED BY THE
JONES ACT, AS THE O'DONNELL CASE INDICATES, PETITIONER BEING A SEAMAN
WHO WAS INJURED AS A CONSEQUENCE OF THE NEGLIGENCE OF HIS EMPLOYER. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF
THE DISTRICT COURT IS REINSTATED.  SO ORDERED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

TO ASSERT A RIGHT OF ACTION UNDER THE JONES ACT, A PLAINTIFF MUST NOT
ONLY BY A SEAMAN, THAT IS, A "MEMBER OF A CREW OF ANY VESSEL," BUT MUST
HAVE BEEN INJURED "IN THE COURSE OF HIS EMPLOYMENT."  46 U.S.C. SEC.
688; 33 U.S.C. SEC. 903(A)(1).  PETITIONER WAS CONCEDEDLY A MEMBER OF
THE CREW OF A VESSEL AT THE TIME THE EVENTS IN QUESTION TOOK PLACE. 
THE CONTROVERTED ISSUE IS WHETHER A JURY COULD HAVE FOUND THAT HE WAS
INJURED "IN THE COURSE OF HIS EMPLOYMENT."  I CANNOT AGREE THAT THE
NATURE OF A SEAMAN'S DUTIES AT THE TIME OF INJURY IS IRRELEVANT TO THIS
LATTER ISSUE. 

UNTIL TODAY IT HAS NOT BEEN INTIMATED IN ANY OPINION OF THE COURT
THAT I KNOW OF THAT A SEAMAN MAY RECOVER UNDER THE JONES ACT FOR
INJURIES ARISING OUT OF ACTIVITIES, UNRELATED TO THE MAINTENANCE OR
OPERATION OF HIS VESSEL, AND NOT INCIDENTAL TO ITS AFFAIRS.  IN OTHER
WORDS, THE STATUS OF BEING A SEAMAN DOES NOT ALONE BRING THE JONES ACT
INTO PLAY.  THE CHARACTER OF THE ACTIVITIES GIVING RISE TO THE INJURY
COMPLAINED OF IS ALSO AN INDISPENSABLE ELEMENT TO THE EXISTENCE OF A
FEDERAL RIGHT TO RELIEF UNDER THIS STATUTE.  IN THE O'DONNELL CASE, 318
U.S. 36, CITED BY THE COURT, IT WAS STATED (AT 42-43):  "THE RIGHT OF
RECOVERY IN THE JONES ACT IS GIVEN TO THE SEAMAN AS SUCH, AND  ...
DEPENDS  ...  ON THE NATURE OF THE SERVICE AND ITS RELATIONSHIP TO THE
OPERATION OF THE VESSEL PLYING IN NAVIGABLE WATERS."  THERE A CREW
MEMBER WAS ORDERED TO GO ASHORE MOMENTARILY TO ASSIST IN THE REPAIR OF
A FIXTURE BEING USED IN UNLOADING THE SHIP.  THAT THE WORK WAS BEING
DONE ON THE DOCK WAS HELD IMMATERIAL TO JONES ACT LIABILITY.  BUT THAT
WORK WAS PLAINLY IN AID OF THE OPERATIONS OF THE VESSEL ON WHICH
O'DONNELL WAS EMPLOYED.  SEE SWANSON V. MARRA BROS., 328 U.S. 1, 4. 
(FN1)  IT IS A FAR DIFFERENT MATTER TO SAY, AS THE COURT SEEMS TO SAY
HERE, THAT A CREW MEMBER MAY RECOVER UNDER THE JONES ACT FOR INJURIES
ARISING OUT OF ACTIVITIES NOT DIRECTLY RELATED TO THE AFFAIRS OF THE
VESSEL, AS IN O'DONNELL, AND NOT INCIDENTAL TO HIS SHIPBOARD WORK, SEE
THOMPSON V. EARGLE, 182 F.2D 717; MARCEAU V. GREAT LAKES TRANSIT CORP.,
146 F.2D 416.  "IN THE SERVICE OF THE SHIP" IS SOMETHING QUITE
DIFFERENT THAN "IN THE SERVICE OF THE SHIPOWNER."  (FN2)  IN THIS CASE
THE SEAMAN'S EMPLOYER ALSO HAD A NONSEAMAN-EMPLOYING BUSINESS, THE
REPAIR YARD, FOR WHICH NONSEAMAN ACTIVITIES WERE NEEDED. 

THE JONES ACT EXTENDED TO MARITIME WORKERS THE NEGLIGENCE REMEDY
PROVIDED FOR INTERSTATE RAILROAD WORKERS BY THE FEDERAL EMPLOYERS'
LIABILITY ACT, 45 U.S.C. SEC. 51.  UNDER THE FELA, AND THE UNIFORM
COURSE OF OUR DECISIONS UNDER IT, SEE, E.G., SOUTHERN PACIFIC CO. V.
GILEO, 351 U.S. 493; REED V. PENNSYLVANIA R. CO., 351 U.S. 502, THE
REMEDY GIVEN BY THAT ACT APPLIES ONLY "TO ANY PERSON SUFFERING INJURY
WHILE HE IS EMPLOYED BY SUCH INTERSTATE CARRIER IN SUCH COMMERCE." 
UNDER THE JONES ACT THE REMEDY IS GIVEN TO "ANY SEAMAN WHO SHALL SUFFER
PERSONAL INJURY IN THE COURSE OF HIS EMPLOYMENT."  I THINK THIS MEANS
THAT A SEAMAN'S INJURY MUST HAVE ARISEN OUT OF HIS WORK AS A SEAMAN,
JUST AS A RAILROAD WORKER'S INJURY MUST HAVE ARISEN OUT OF HIS
EMPLOYMENT IN INTERSTATE COMMERCE.  OTHERWISE IT IS DIFFICULT TO SEE
WHAT PURPOSE THE "IN THE COURSE OF HIS EMPLOYMENT" REQUIREMENT OF THE
JONES ACT SERVES.  BOTH THE FELA AND THE JONES ACT GIVE A FEDERAL CAUSE
OF ACTION IN NEGLIGENCE ONLY IN RESPECT OF PARTICULAR KINDS OF INJURIES
- UNDER THE FELA, THOSE SUFFERED IN INTERSTATE COMMERCE, UNDER THE
JONES ACT, THOSE SUFFERED IN WORK AS A SEAMAN. 

THUS, I THINK THE ISSUE OF LIABILITY IN THIS CASE TURNS ON WHETHER
PETITIONER, WHEN HE FELL FROM THE FAULTY CATWALK, WAS ALREADY ENGAGED
IN THE PERFORMANCE OF HIS RAFT ASSIGNMENT, OR WHETHER HE WAS SIMPLY EN
ROUTE TO THAT ASSIGNMENT.  IF THE FORMER, THERE WOULD, IN MY OPINION,
BE NO LIABILITY, FOR THE RECORD CONTAINS NO BASIS FOR AN INFERENCE THAT
PETITIONER'S ASSIGNMENT WAS RELATED TO THE BUSINESS OF THE VESSEL AND,
LACKING SUCH RELATIONSHIP, PETITIONER'S INJURY CANNOT BE DEEMED TO HAVE
OCCURRED "IN THE COURSE OF HIS EMPLOYMENT."  IN THAT EVENT ANY REMEDY
WOULD BE THAT AFFORDED BY LOCAL LAW.  CF. SWANSON V. MARRA BROS.,
SUPRA, AT P. 7; 2 LARSON, LAW OF WORKMEN'S COMPENSATION, SEC. 90.22. 
(FN3) IF, HOWEVER, PETITIONER WAS INJURED EN ROUTE TO HIS RAFT
ASSIGNMENT, THE JONES ACT WOULD APPLY, FOR "THE COURSE OF HIS
EMPLOYMENT," I THINK, CONTINUED UNTIL HE COMMENCED THAT ASSIGNMENT. 
CONSIDERING THAT THE EVIDENCE PRESENTS A JURY ISSUE ON THIS SCORE, I
CONCUR IN THE REVERSAL OF THE JUDGMENT OF THE COURT OF APPEALS
DISMISSING THE COMPLAINT. 

HOWEVER, I DISSENT FROM THE REINSTATEMENT OF THE JUDGMENT OF THE
DISTRICT COURT.  THE RELEVANT PORTION OF THE CHARGE, TO WHICH
RESPONDENT EXCEPTED, WAS VAGUE AND LACKING IN GUIDANCE AS TO THE NATURE
OF THE FACTUAL ISSUE PRESENTED IN THIS RESPECT.  (FN4)  MOREOVER, IN
MAKING LIABILITY TURN ON THE QUESTION WHETHER CREW MEMBERS NORMALLY
PERFORMED WORK OF THIS NATURE, THE CHARGE WAS IN ERROR.  (FN5)  SUCH A
FACTOR MIGHT WELL BE RELEVANT IN A CASE WHERE THERE WAS DOUBT AS TO THE
ULTIMATE ISSUE WHETHER AN INJURY WAS SUFFERED IN THE COURSE OF WORK
(FN6) IN SOME WAY RELATED TO THE VESSEL IN WHICH THE PLAINTIFF SEAMAN
SERVED.  HOWEVER, HERE IT WAS NOT DISPUTED THAT THE PETITIONER'S
ASSIGNMENT TO WORK ON THE RAFT WAS AT THE TIME WHOLLY UNRELATED TO ANY
OF THE AFFAIRS OF HIS VESSEL.    FN1  IN REFERRING TO THE O'DONNELL
CASE, IT WAS STATED IN SWANSON (AT P. 4):  "WE THERE HELD THE SHIP
OWNER LIABLE, UNDER THE JONES ACT, FOR INJURIES CAUSED TO A SEAMAN BY A
FELLOW SERVANT WHILE THE FORMER WAS ON SHORE ENGAGED IN REPAIRING A
CONDUIT WHICH WAS A PART OF THE VESSEL AND USED FOR DISCHARGING ITS
CARGO.  BUT IN THAT CASE WE SUSTAINED THE RECOVERY BECAUSE THE INJURED
PERSON WAS A SEAMAN AND AN EMPLOYEE OF THE VESSEL, ENGAGED IN THE
COURSE OF HIS EMPLOYMENT AS SUCH." 

FN2  THE MAINTENANCE AND CURE DECISIONS RELIED ON BY THE COURT ARE
ALL, LIKE THE MARCEAU CASE, INSTANCES OF INJURIES INCURRED DURING
LEAVETIME ACTIVITIES, AND ARE INAPPOSITE HERE.  WHETHER, ON THE FACTS
IN THE CASE BEFORE US, THE PETITIONER WOULD BE FOUND TO HAVE BEEN
WORKING "IN THE SERVICE OF HIS SHIP" FOR PURPOSES OF THE DOCTRINE OF
MAINTENANCE AND CURE, WE NEED NOT DECIDE, FOR THE COURT ADVANCES NO
REASON FOR ASSIMILATING THE ISSUE OF JONES ACT COVERAGE TO THAT OF THE
AVAILABILITY OF MAINTENANCE AND CURE. 

FN3  I THINK THE COURT OF APPEALS WAS MISTAKEN IN CONSIDERING THAT
THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT WOULD APPLY,
FOR THAT ACT, 33 U.S.C. SECS. 902(3), 903(A)(1), EXCLUDES FROM ITS
COVERAGE A "MEMBER OF A CREW OF ANY VESSEL," WHICH THIS PETITIONER
ADMITTEDLY WAS. 

FN4  THE CHARGE, IN PERTINENT PART, READ AS FOLLOWS: 

"WHILE IT SEEMED AT THE OUTSET TO BE SOME QUESTION AS TO WHEHTER OR
NOT HE WAS A MEMBER OF THE CREW, IT DOES NOT SEEM TO BE SERIOUSLY
DISPUTED THAT AT THE TIME OF THE ACCIDENT HE WAS A MEMBER OF THE CREW. 

"WHETHER OR NOT AT THE TIME OF THE ACCIDENT HE WAS ENGAGED IN
FUNCTIONS WHICH ARE NORMALLY PERFORMED BY A MEMBER OF THE CREW, AND AS
HE STATED, SOME FUNCTIONS HE GAVE IN DETAIL, THAT HE DID PERFORM
VARIOUS FUNCTIONS PRIOR TO THE DATE OF THE ACCIDENT, ARE FOR YOU TO
DETERMINE." 

SUBSEQUENTLY THE COURT AMENDED THE CHARGE IN THIS LANGUAGE: 

"I DID STATE THAT IT IS NOT SERIOUSLY DISPUTED THAT THE PLAINTIFF WAS
NOT A MEMBER OF THE CREW.  APPARENTLY ACCORDING TO THE DEFENDANT'S
STATEMENT, HE SAYS THAT IS A SERIOUS ISSUE. 

"SO I WILL LEAVE THAT AS AN ISSUE." 

FN5  THE TWO LOWER COURTS SEEM TO HAVE FAILED TO COME SHARPLY TO
GRIPS WITH THE DISTINCTION BETWEEN THE TWO SEPARATE REQUIREMENTS OF THE
JONES ACT, NAMELY, THAT THE PLAINTIFF HAVE THE STATUS OF A "SEAMAN,"
AND THAT HIS INJURY MUST HAVE BEEN SUFFERED "IN THE COURSE OF HIS
EMPLOYMENT" AS SUCH.  MOST OF THE JONES ACT CASES DECIDED BY THIS COURT
HAVE INVOLVED ONLY THE "SEAMAN" ISSUE.  SEE, E.G., SENKO V. LACROSSE
DREDGING CORP., 352 U.S. 370; GRIMES V. RAYMOND CONCRETE PILE CO., 356
U.S. 252; BUTLER V. WHITEMAN, 356 U.S. 271.  SUCH DECISIONS ARE ONLY
REMOTELY APPOSITE HERE WHERE THE PETITIONER'S STATUS AS A SEAMAN IS NOT
DISPUTED.  IT ONLY CONFUSES THINGS TO EQUATE THE ISSUE OF BEING A
"SEAMAN" WITH THE ISSUE WHETHER THE INJURIES SUFFERED WERE "IN THE
COURSE OF HIS EMPLOYMENT." 

FN6  SHORE LEAVE CASES SUCH AS MARCEAU, SUPRA, PRESENT A DIFFERENT
PROBLEM. 
..END :



















INMAN V. BALTIMORE & OHIO RAILROAD CO. 361 U.S. 138 


NO. 36.  ARGUED NOVEMBER 12, 1959 - DECIDED DECEMBER 14, 1959 - 168 OHIO
ST. 335, 154 N.E.2D 442, AFFIRMED. 


IN THIS SUIT BY PETITIONER UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
TO RECOVER DAMAGES FROM HIS RAILROAD EMPLOYER FOR PERSONAL INJURIES
SUSTAINED WHEN HE WAS STRUCK BY AN AUTOMOBILE DRIVEN BY A DRUNKEN
DRIVER WHILE PETITIONER WAS SERVING AS CROSSING WATCHMAN AT A HEAVILY
TRAVELED INTERSECTION OF TWO CITY STREETS AND THREE SETS OF RAILROAD
TRACKS, HELD:  THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT THE JURY'S
CONCLUSION THAT NEGLIGENCE OF THE RAILROAD PLAYED A PART IN
PETITIONER'S INJURY, AND A JUDGMENT FOR PETITIONER WAS PROPERLY
REVERSED.  PP. 138-141. 

INMAN V. BALTIMORE & OHIO RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, 35 STAT. 65, 45 U.S.C. SEC. 51, FOR PERSONAL INJURIES SUSTAINED IN
THE COURSE OF HIS EMPLOYMENT.  PETITIONER FOR SOME SEVEN YEARS HAD BEEN
A RAILROAD CROSSING WATCHMAN FOR RESPONDENT AT "BETTES CORNERS" IN
AKRON, OHIO.  HE FILED SUIT CLAIMING DAMAGES FOR AN INJURY HE RECEIVED
WHEN AN INTOXICATED AUTOMOBILE DRIVER RAN INTO HIM ONE MIDNIGHT WHILE
HE WAS ON DUTY FLAGGING TRAFFIC FOR A PASSING TRAIN.  BETTES CORNERS IS
A HEAVILY TRAVELED VEHICULAR INTERSECTION WHERE TALLMADGE AVENUE,
RUNNING EAST AND WEST, IS INTERSECTED BY HOME AVENUE, WHICH RUNS
NORTHEAST AND SOUTHWEST.  THREE SETS OF RAILROAD TRACKS CUT DIAGONALLY
ACROSS THE INTERSECTION IN A NORTHWEST-SOUTHEAST DIRECTION.  THE DRIVER
OF THE AUTOMOBILE, HEADING NORTHEAST ON HOME AVENUE, WAS TURNING LEFT
INTO TALLMADGE AVENUE WHEN THE ACCIDENT OCCURRED.  PETITIONER CLAIMS
THAT THE RAILROAD "WAS NEGLIGENT IN FAILING TO USE ORDINARY CARE TO
PROVIDE  ...  A REASONABLE SAFE PLACE TO WORK" AT THE CROSSING.  HE
SAYS THAT HIS DUTIES - INCLUDING THE FLAGGING OF TRAFFIC, MAINTENANCE
OF A LOOKOUT FOR OTHER TRAINS, AND THE REPORTING OF HOTBOXES ON THE
PASSING ONES - REQUIRED HIM TO FACE THE TRAIN TRACKS AND CREATED A
LIKELIHOOD OF HIS BEING STRUCK BY AUTOMOBILES AT THE INTERSECTION. 

THE EVIDENCE OF THE MANIFOLD DUTIES OF PETITIONER IS CLEAR.  THE
EVIDENCE OF HIS EXPOSURE TO INJURY BY TRAFFIC INCLUDES THE LAYOUT OF
BETTES CORNERS, THE CUT OF THE RAILROAD TRACKS ACROSS IT, AND THE
DUTIES PETITIONER WAS REQUIRED TO PERFORM.  PETITIONER SAYS THAT THE
LAYOUT OF THE CROSSING WAS HAZARDOUS FOR ONE PERFORMING THE DUTIES
ASSIGNED TO HIM.  IN SUPPORT OF THIS, HE POINTS TO THE ANSWER OF ONE
WITNESS AS TO THE ACTION OF THE CAR WHICH STRUCK HIM.  THIS WITNESS
STATED THAT, "LIKE A LOT OF THEM I SEEN THERE, JUMPING THE GUN" AT THE
CROSSING, THE DRIVER OF THIS CAR, ON SEEING THE TAIL LIGHT OF THE TRAIN
APPROACHING, DROVE AROUND THE LINE OF CARS ON THE STREET ADJACENT TO
THE TRAIN AND, AS HE WAS TURNING LEFT ONTO THE OTHER STREET, HIT
PETITIONER, WHO WAS STANDING NEAR THE PASSING TRAIN AND FLAGGING THE
TRAFFIC.  THERE IS NO CLAIM THAT THE INTERSECTION WAS DARK OR THAT THE
REGULAR RAILROAD CROSSING WARNING, LIGHTS, BELLS, ETC., WERE NOT
PROPERLY WORKING AT THE TIME.  NOR IS IT DISPUTED THAT THE PETITIONER
WAS WAVING A LIGHTED LANTERN IN EACH HAND.  LIKEWISE THE INTOXICATED
CONDITION OF THE DRIVER IS NOT IN CONTROVERSY, NOR IS THE FACT THAT HE
PASSED THROUGH A TRAFFIC STOP SIGN IMMEDIATELY BEFORE HITTING
PETITIONER AND VIOLATED OTHER LOCAL TRAFFIC SAFETY MEASURES DESIGNED TO
PROTECT PERSONS FROM INJURY AT THE CROSSING. 

THE TRIAL COURT SUBMITTED THE ISSUE OF NEGLIGENCE TO THE JURY, WHICH
FOUND THE RAILROAD NEGLIGENT "IN PART" BECAUSE IT FAILED TO AFFORD
"ENOUGH PROTECTION."  JUDGMENT FOR PETITIONER WAS ENTERED ON THE
VERDICT FOR $25,000.  THE COURT OF APPEALS OF OHIO REVERSED, FINDING
THAT "THERE WAS A COMPLETE FAILURE OF PROOF TO ESTABLISH THE
NEGLIGENCE."  IT SAID THAT IT WAS NOT "REASONABLY FORESEEABLE" THAT
PETITIONER "WOULD BE INJURED BY THE ACTIONS OF A DRUNKEN DRIVER,
VIOLATING FIVE TRAFFIC STATUTES  ...  ."  108 OHIO APP. 124, 131, 161
N.E.2D 60, 66.  AFTER THE SUPREME COURT OF OHIO DISMISSED THE APPEAL,
168 OHIO ST. 335, 154 N.E.2D 442, WE GRANTED CERTIORARI, 359 U.S. 958. 

IN ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500 (1957), WE LAID
DOWN THE RULE THAT "JUDICIAL APPRAISAL OF THE PROOFS TO DETERMINE
WHETHER A JURY QUESTION IS PRESENTED IS NARROWLY LIMITED TO THE SINGLE
INQUIRY WHETHER, WITH REASON, THE CONCLUSION MAY BE DRAWN THAT
NEGLIGENCE OF THE EMPLOYER PLAYED ANY PART AT ALL IN THE INJURY OR
DEATH."  ID., AT 506-507.  IN MEASURING OHIO'S DISPOSITION OF THE CASE
HERE BY THE ROGERS YARDSTICK, WE MUST AFFIRM.  THE ACT DOES NOT MAKE
THE EMPLOYER AN INSURER.  HERE PETITIONER HAD BEEN WORKING AT BETTES
CORNERS FOR SEVEN YEARS, PERFORMING THESE SAME DUTIES UNDER LIKE
CIRCUMSTANCES AND, FOR SOME THREE YEARS, ON THIS IDENTICAL MIDNIGHT
SHIFT.  NO ACCIDENTS HAD OCCURRED DURING THAT LONG PERIOD.  IN LIGHT OF
THIS BACKGROUND, WE BELIEVE THAT THE EVIDENCE HERE WAS SO THIN THAT, ON
A JUDICIAL APPRAISAL, THE CONCLUSION MUST BE DRAWN THAT NEGLIGENCE ON
THE PART OF THE RAILROAD COULD HAVE PLAYED NO PART IN PETITIONER'S
INJURY. 

THE CONTENTION OF PETITION IS THAT THE WITNESS' REMARK, "LIKE A LOT
OF THEM I SEEN THERE, JUMPING THE GUN," WAS TESTIMONY OF OTHER
OCCURRENCES AT THE CROSSING SIMILAR TO THE ONE HERE INVOLVED.  THE
BURDEN OF PROVING THAT THE CROSSING WAS AN UNSAFE PLACE TO WORK WAS ON
PETITIONER.  IT DEPENDED ON SOME TYPE OF TESTIMONY SHOWING THE HAZARDS
AT THE CROSSING.  THERE IS NO EVIDENCE OF COMPLAINT TO THE RAILROAD,
NOR IS THERE OTHER TESTIMONY OF SIMILAR OCCURRENCES IN THE RECORD.  IN
MAKING THE JUDICIAL APPRAISAL OF THIS TENUOUS PROOF, OHIO'S COURT OF
APPEALS HELD IT NOT SUFFICIENT.  IT FOUND THAT THERE WAS "NO EVIDENCE
OF PRIOR OCCURRENCES OF THE KIND HERE UNDER CONSIDERATION" IN THE
RECORD.  INDEED, UNLESS THESE 11 WORDS OF THE WITNESS CAN BE SAID WITH
REASON TO BE SUFFICIENT, THERE IS NONE.  UNDER SUCH CIRCUMSTANCES, THEY
ARE TOO SLENDER A REED FOR US TO SAY THAT THE DECISION OF OHIO'S COURT
IS ERRONEOUS. 

WE THEREFORE CONCLUDE, IN LIGHT OF THESE CONSIDERATIONS, THAT THE
JUDGMENT MUST BE AFFIRMED. 

MR. JUSTICE FRANKFURTER.   THE OPINION OF MY BROTHER CLARK
DEMONSTRATES, INSOFAR AS DEMONSTRATION IS POSSIBLE IN LAW, THAT THIS
CASE SHOULD NEVER HAVE BEEN BROUGHT HERE.  IN ACCORDANCE WITH THE VIEWS
THAT I EXPRESSED IN ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500,
524 (1957), AND IN WHICH HAVE SINCE PERSISTED, THE APPROPRIATE
DISPOSITION WOULD BE DISMISSAL OF THE WRIT OF CERTIORARI AS
IMPROVIDENTLY GRANTED.  IF THESE VIEWS  WERE ENFORCED UNDER THE SPECIAL
CIRCUMSTANCES OF THIS CASE, AFFIRMANCE BY AN EQUALLY DIVIDED COURT
WOULD RESULT.  THEREBY THIS CASE WOULD BE CAST INTO THE LIMBO OF
UNEXPLAINED ADJUDICATIONS, AND THE LOWER COURTS, AS WELL AS THE
PROFESSION, WOULD BE DEPRIVED OF KNOWING THE CIRCUMSTANCES OF THIS
LITIGATION AND THE BASIS OF OUR DISPOSITION OF IT.  SINCE I HAVE
REGISTERED MY CONVICTION ON WHAT I BELIEVE TO BE THE PROPER DISPOSITION
OF THE CASE, IT IS NOT UNDUE COMPROMISE WITH PRINCIPLE FOR ME TO JOIN
BROTHER CLARK'S OPINION IN ORDER TO MAKE POSSIBLE A COURT OPINION. 

MR. JUSTICE WHITTAKER, CONCURRING. 

I HEARTILY JOIN THE COURT'S OPINION.  BUT I DERIVE NO PLEASURE FROM
IMPLYING, CONTRARY TO THE VIEWS OF MY BROTHERS IN THE MINORITY, THAT
THERE WAS SUCH COMPLETE WANT OF EVIDENCE OF NEGLIGENCE BY RESPONDENT
THAT "REASONABLE MEN" COULD NOT DIFFER ABOUT IT, FOR, AT THE VERY
LEAST, I REGARD MY BROTHERS WHO DISSENT AS REASONABLE MEN. 

NOTWITHSTANDING THIS, IT SEEMS TO ME THAT THE FACTS OF THIS CASE MAKE
IT CRYSTAL CLEAR THAT THE COURT'S OPINION LACKS NOT A WHIT IN FULLY
COMPORTING WITH THE STANDARDS OF CARE OF THE MYTHICAL "REASONABLE MAN,"
FOR, LIKE THE OHIO COURT OF APPEALS, I SIMPLY CANNOT SEE ANY
SUBSTANTIAL EVIDENCE - OR EVEN A SCINTILLA OR AN IOTA OF EVIDENCE - OF
NEGLIGENCE ON THE PART OF RESPONDENT THAT CAUSED, OR DIRECTLY
CONTRIBUTED IN ANY DEGREE TO CAUSE, PETITIONER'S UNFORTUNATE INJURY. 

REDUCED TO SUBSTANCE, THE SIMPLE FACTS ARE THAT PETITIONER, A
CROSSING FLAGMAN, WHILE STANDING IN A WELL-LIGHTED INTERSECTION
ALONGSIDE A PASSING TRAIN IN THE NIGHTTIME AND SWINGING A LIGHTED RED
LANTERN IN EACH HAND, WAS STRUCK, KNOCKED DOWN AND RUN OVER BY A
DRUNKEN DRIVER.  WHAT, I ASK, DID RESPONDENT DO OR OMIT THAT CAUSED OR
CONTRIBUTED TO CAUSE THAT CASUALTY?  HOW COULD IT HAVE PREVENTED THE
CASUALTY?  PETITIONER SAYS THAT RESPONDENT FAILED TO PROVIDE HIM WITH
"ENOUGH PROTECTION."  ABOUT THE ONLY WAY, AS I PERCEIVE, THAT
RESPONDENT COULD PROTECT ITS CROSSING FLAGMEN AGAINST INJURY FROM SUCH
LAWLESS CONDUCT BY THIRD PERSONS WOULD BE TO PROVIDE THEM WITH MILITARY
TANKS AND MAKE SURE THEY STAY IN THEM WHILE WITHIN OR MOVING ABOUT
CROSSING-INTERSECTIONS IN THE PERFORMANCE OF THEIR DUTIES - AND I AM
NOT EVEN SURE THAT THIS METHOD, THOUGH IRONCLAD, WOULD BE CERTAIN
PROTECTION TO A FLAGMAN AGAINST LAWLESS INJURY BY THIRD PERSONS, FOR
SOMEONE MIGHT SHOOT HIM, AN ACT NOT VERY DIFFERENT, IT SEEMS TO ME,
FROM THE DRUNKEN DRIVER'S CONDUCT WHICH INJURED PETITIONER IN THIS
CASE, AND FOR WHICH INJURIES HE INSISTS, AND FOUR MEMBERS OF THIS COURT
AGREE, A JURY SHOULD BE PERMITTED TO REQUIRE RESPONDENT TO PAY
DAMAGES.  HOW THIS CAN BE THOUGHT TO SQUARE WITH ANY KNOWN CONCEPT OF
"NEGLIGENCE" BY RESPONDENT IS BEYOND ME. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

PETITIONER, A NIGHTTIME CROSSING WATCHMAN STATIONED AT RESPONDENT'S
RAILROAD INTERSECTION, WAS SERIOUSLY INJURED ABOUT MIDNIGHT WHEN AN
AUTOMOBILE DRIVEN BY AN INTOXICATED PERSON RAN INTO HIM FROM BEHIND
WHILE HE WAS FLAGGING TRAFFIC FOR A PASSING TRAIN.  THE JURY FOUND ON A
SPECIAL INTERROGATORY THAT RESPONDENT WAS NEGLIGENT IN NOT PROVIDING
"ENOUGH PROTECTION." 

THE CROSSING IS AT TALLMADGE AND HOME AVENUES.  TALLMADGE RUNS EAST
AND WEST; HOME, NORTHEAST AND SOUTHWEST.  THREE OF RESPONDENT'S TRACKS,
RUNNING NORTHWEST AND SOUTHEAST, EXTEND THROUGH THE INTERSECTION OF
THESE TWO STREETS, AND ITS TRAINS MOVE OVER THE PARALLEL TRACKS IN
OPPOSITE DIRECTIONS AND OFTEN NEAR THE SAME TIME. 

THERE WAS EVIDENCE THAT AT THE APPROACH OF A TRAIN PETITIONER HAD
DUTIES OF THE FOLLOWING CHARACTER:  (1) HE WAS SUPPOSED TO FLAG HIGHWAY
TRAFFIC MOVING IN FOUR DIRECTIONS TO A STOP, USING LANTERNS AND A
WHISTLE PROVIDED FOR THAT PURPOSE.  (2) IF A SECOND TRAIN WAS TO PASS
AT OR ABOUT THE TIME OF ANOTHER, HE HAD TO LOOK FOR IT BEFORE CLEARING
THE HIGHWAY TRAFFIC.  (3) HE WAS TO LOOK FOR HOTBOXES ON ALL PASSING
TRAINS AND SIGNAL THE CONDUCTOR IF HE DISCOVERED ANY.  (4) IF A TRAIN
WAS GOING EAST, HE WAS TO STAND ON THE WEST SIDE OF THE TRACKS THE
BETTER TO SEE TRAINS COMING FROM THE WEST. 

ON THE NIGHT IN QUESTION PETITIONER RECEIVED A SIGNAL THAT AN
EASTBOUND TRAIN WAS APPROACHING.  ACCORDINGLY, HE STATIONED HIMSELF A
FEW FEET WEST OF THE TRACKS, BLOWING THE WHISTLE AND SWINGING THE RED
LANTERN FIRST TOWARD TALLMADGE AVENUE TRAFFIC AND THEN TOWARD HOME
AVENUE TRAFFIC.  THEN HE STATIONED HIMSELF FACING THE TRACKS, HIS BACK
TO TALLMADGE AVENUE TRAFFIC. 

ALTHOUGH RESPONDENT'S TRACKS INTERSECT TALLMADGE AND HOME AVENUES
WHERE THOSE TWO STREETS CROSS, IT IS POSSIBLE FOR A CAR GOING NORTH ON
HOME TO MAKE A LEFT TURN INTO TALLMADGE EVEN WHILE A TRAIN IS PASSING. 
THERE IS, HOWEVER, A STOP SIGN ON HOME; AND PETITIONER RIGHTFULLY HAD
HALTED ALL HIGHWAY TRAFFIC.  NEVERTHELESS AN INTOXICATED DRIVER CAME
THROUGH THE STOP SIGN ON HOME AND MADE A SQUEALING LEFT TURN INTO
TALLMADGE, HITTING PETITIONER AND INJURING HIM. 

THERE WAS EVIDENCE THAT AT THE TIME OF THE ACCIDENT (1) THE CABOOSE
OF THE PASSING TRAIN WAS JUST MAKING THE CROSSING; (2) THE RAILROAD
BLOCK SIGNAL COULD NOT BE SEEN FROM WHERE PETITIONER STOOD; (3) ANOTHER
TRAIN FROM THE OPPOSITE DIRECTION ON THE ADJOINING TRACK WAS DUE TO
REACH THE CROSSING AT ANY MOMENT AND PETITIONER WAS LOOKING FOR ITS
HEADLIGHT; (4) PETITIONER REMAINED STANDING WITH HIS BACK TO THE
HIGHWAY TRAFFIC AS HE WAS OBLIGED TO DO IF HE PERFORMED THESE MANIFOLD
DUTIES; (5) THIS TRAFFIC WAS HEAVY IN BOTH STREETS; (6) ON PRIOR
OCCASIONS CARS HAD "JUMPED THE GUN" AT THIS SAME INTERSECTION. 

IT MAY BE THAT IF THE DUTY OF THE PETITIONER HAD BEEN RESTRICTED TO
STOPPING TRAFFIC ON THE APPROACH OF A TRAIN AND WAVING IT ON WHEN THE
TRAIN HAD PASSED, THERE WOULD BE ON THIS RECORD (UNLIKE THAT IN CAHILL
V. NEW YORK, N.H.&H.R. CO., 351 U.S. 183) (FN1) NO EVIDENCE OF
NEGLIGENCE ON RESPONDENT'S PART.  PETITIONER'S DUTIES WERE MUCH
BROADER, AS I HAVE INDICATED.  YET THE COURT HOLDS THERE WAS NO JURY
QUESTION AS TO WHETHER THE PLACE CHOSEN FOR THE PERFORMANCE OF THOSE
SEVERAL DUTIES WAS A REASONABLY SAFE ONE IN LIGHT OF ALL THE
CIRCUMSTANCES, INCLUDING THE VOLUME OF TRAFFIC AT THAT INTERSECTION. 
PLAINLY RESPONDENT IS NOT AN INSURER.  IT IS UNDER NO DUTY TO REMOVE
ALL POSSIBILITIES OF INJURY TO ITS EMPLOYEES OR TO MAKE, AT ANY COST,
THE PLACE OF WORK AS SAFE AS ONE'S LIVING ROOM.  BUT WHETHER A
PARTICULAR HAZARD IS OF SUFFICIENT WEIGHT AND MOMENT TO INDUCE A
REASONABLE PERSON TO GUARD AGAINST IT AND WHETHER THAT DANGER COULD BE
REMOVED OR DIMINISHED BY SAFETY MEASURES REASONABLY AVAILABLE ARE
MATTERS FOR THE JURY TO DETERMINE.  THE JURY MIGHT FIND THAT THE
ASSIGNMENT OF PART OF PETITIONER'S DUTIES TO SOMEONE ELSE OR THE
INSTALLATION OF MECHANICAL DEVICES TO STOP TRAFFIC WOULD HAVE BEEN
UNDERTAKEN BY A REASONABLE PERSON UNDER THE CIRCUMSTANCES.  IT IS NOT
CLEAR BEYOND ARGUMENT OF REASONABLE MEN THAT THE RESPONDENT COULD NOT
HAVE FORESEEN AN INJURY TO PETITIONER BY A RECKLESS MOTORIST OR THAT IT
TOOK EVERY PRECAUTION THAT REASONABLENESS UNDER THE CIRCUMSTANCES
REQUIRED.    THE NATURE OF THIS CONGESTED CROSSING WITH THREE SETS OF
RAILROAD TRACKS CUTTING DIAGONALLY ACROSS ITS FOUR CORNERS AND THE
MULTIPLE DUTIES REQUIRED OF PETITIONER AT THIS HOUR OF THE NIGHT, WERE
SUFFICIENT IN MY VIEW FOR A JURY TO FIND THAT PETITIONER WAS TOO BUSY
TO PROTECT HIMSELF FROM THE VEHICULAR TRAFFIC AND THAT THE EMPLOYER DID
NOT USE REASONABLE CARE IN FURNISHING HIM WITH A SAFE PLACE TO WORK, AS
REQUIRED BY THE ACT.  BAILEY V. CENTRAL VERMONT R. CO., 319 U.S. 350. 
THE VERY CLOSE DIVISION IN THIS COURT ON THAT ISSUE REINFORCES MY
CONCLUSION. 

THERE IS NO REASON WHY A NEGLIGENT ACTOR SHOULD BE INSULATED FROM THE
CONSEQUENCES OF HIS NEGLIGENCE MERELY BECAUSE A THIRD PARTY'S RECKLESS
OR CRIMINAL ACT WAS THE IMMEDIATE CAUSE OF THE INJURY.  ON THE
CONTRARY, WE HAVE UNANIMOUSLY HELD THAT THE FACT THAT THE DANGER TO THE
EMPLOYEE UNDER THE ACT LIES IN INTENTIONAL OR CRIMINAL CONDUCT OF THIRD
PARTIES IS NOT DETERMINATIVE.  IF FORESEEABLE, THERE IS A DUTY TO MAKE
REASONABLE PROVISIONS AGAINST SUCH EVENTS.  LILLIE V. THOMPSON, 332
U.S. 459.  THE INSTRUCTIONS ON THIS POINT SEEM TO ME TO BE ADEQUATE. 
(FN2)  THE COURT APPEARS TO PLACE GREAT STRESS ON THE LACK OF EVIDENCE
OF PRIOR ACCIDENTS AT THIS INTERSECTION AND THE FACT THAT PETITIONER
WORKED THERE FOR SEVEN YEARS BEFORE BEING HIT BY AN AUTOMOBILE.  BUT
CERTAINLY THE DUTY TO MAKE A REASONABLE EFFORT TO PROVIDE A SAFE PLACE
OF WORK IS NOT CONDITIONED UPON AN EMPLOYEE'S FIRST BEING INJURED OR
KILLED.  MOREOVER, THE LIABILITY OF THE RAILROAD UNDER THE ACT ATTACHES
EVEN THOUGH THE INJURY WAS CAUSED ONLY "IN PART" BY ITS NEGLIGENCE. 
SUCH IS THE COMMAND OF SEC. 1 OF THE ACT, AS REPEATEDLY APPLIED.  SEE
ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500, 506-507; CAHILL V. NEW
YORK, N.H.&H.R. CO., SUPRA. 

THOUGH I THINK AFFIRMANCE OF THE JUDGMENT IS ERROR, I AM HAPPY THAT
WE HAVE A FULL COURT TURNING ITS ATTENTION TO AN IMPORTANT QUESTION OF
LAW - WHETHER TRIAL BY JURY, GUARANTEED BY THE SEVENTH AMENDMENT AND AN
INTEGRAL PART OF THE REMEDY PROVIDED BY CONGRESS UNDER THIS ACT, HAS
BEEN HONORED BY THE COURTS.  MOREOVER, AS MY BROTHER FRANKFURTER POINTS
OUT, AFFIRMANCE OF THE JUDGMENT BELOW BY AN EQUALLY DIVIDED COURT WOULD
DEPRIVE THE DECISION OF ALL PRECEDENTIAL VALUE, SO IMPORTANT IN THIS AS
IN OTHER FIELDS.  FURTHERMORE, THE WITHDRAWAL OF A JUSTICE FROM A
DECISION ON THE MERITS AFTER CERTIORARI HAS BEEN GRANTED IMPAIRS THE
INTEGRITY OF THE PRACTICE OF ALLOWING THE VOTE OF FOUR JUSTICES TO
BRING UP ANY CASE ON CERTIORARI.  (FN3)  PARTICIPATION BY THE WHOLE
COURT AT LEAST IN SOME OF THESE CASES (CF.  REYNOLDS V. ATLANTIC COAST
LINE R. CO., 336 U.S. 207, 209) IS PARTIAL PERFORMANCE OF OUR PLEDGE TO
CONGRESS. 

FN1  FOR THE OPINION BELOW SEE 224 F.2D 637. 

FN2  "AFTER AN ACCIDENT HAS HAPPENED IT IS USUALLY EASY TO SEE HOW IT
COULD HAVE BEEN AVOIDED BUT NEGLIGENCE IS NOT A MATTER TO BE JUDGED
AFTER AN OCCURRENCE.  IT IS ALWAYS A QUESTION OF WHAT REASONABLY
PRUDENT PERSONS UNDER LIKE OR SIMILAR CIRCUMSTANCES WOULD OR SHOULD
HAVE ANTICIPATED IN THE EXERCISE OF ORDINARY CARE.  WHERE THERE IS NO
DANGER REASONABLY TO BE ANTICIPATED OR APPREHENDED, THERE IS NO DUTY TO
GUARD AGAINST SOMETHING THAT IN THE MINDS OF REASONABLE MEN DOES NOT
EXIST.  HOWEVER, IF SUCH EXPECTATION CARRIES A REALIZATION THAT A GIVEN
SET OF CIRCUMSTANCES IS SUGGESTIVE OF DANGER, THEN FAILURE TO TAKE
APPROPRIATE SAFETY MEASURES CONSTITUTES NEGLIGENCE." 

FN3  SEE THE LEGISLATIVE HISTORY IN HARRIS V. PENNSYLVANIA R. CO.,
ANTE, P. 15, AT P. 18, NOTE 2 (CONCURRING OPINION). 
..END :























SMITH V. CALIFORNIA 361 U.S. 147 


NO. 9.  ARGUED OCTOBER 20, 1959 - DECIDED DECEMBER 14, 1959 - 161 CAL.
APP. 2D SUPP. 860, 327 P.2D 636, REVERSED. 


APPELLANT, PROPRIETOR OF A BOOKSTORE, WAS CONVICTED OF VIOLATING A
CITY ORDINANCE WHICH WAS CONSTRUED BY THE STATE COURTS AS MAKING HIM
ABSOLUTELY LIABLE CRIMINALLY FOR THE MERE POSSESSION IN HIS STORE OF A
BOOK LATER JUDICIALLY DETERMINED TO BE OBSCENE - EVEN IF HE HAD NO
KNOWLEDGE AS TO THE CONTENTS OF THE BOOK.  HELD:  AS THUS CONSTRUED AND
APPLIED, THE ORDINANCE VIOLATES THE FREEDOM OF THE PRESS WHICH IS
SAFEGUARDED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT FROM
INVASION BY STATE ACTION.  PP. 148-155. 

(A)  THE FREE PUBLICATION AND DISSEMINATION OF BOOKS OBVIOUSLY ARE
WITHIN THE CONSTITUTIONALLY PROTECTED FREEDOM OF THE PRESS, AND A
RETAIL BOOKSELLER PLAYS A MOST SIGNIFICANT ROLE IN THE DISTRIBUTION OF
BOOKS.  P. 150. 

(B)  LEGAL DEVICES AND DOCTRINES, IN MOST APPLICATIONS CONSISTENT
WITH THE CONSTITUTION, MAY NOT BE CONSTITUTIONALLY CAPABLE OF
APPLICATION WHERE SUCH APPLICATION WOULD HAVE THE EFFECT OF INHIBITING
FREEDOM OF EXPRESSION BY MAKING PERSONS RELUCTANT TO EXERCISE IT.  PP.
150-152. 

(C)  OBSCENE EXPRESSION IS NOT CONSTITUTIONALLY PROTECTED; BUT THIS
ORDINANCE IMPOSES AN UNCONSTITUTIONAL LIMITATION ON THE PUBLIC'S ACCESS
TO CONSTITUTIONALLY PROTECTED MATTER.  FOR, IF THE BOOKSELLER BE
CRIMINALLY LIABLE WITHOUT KNOWLEDGE OF THE CONTENTS, HE WILL TEND TO
RESTRICT THE BOOKS HE SELLS TO THOSE HE HAS INSPECTED; AND THUS A
RESTRICTION WILL BE IMPOSED BY THE STATES UPON THE DISTRIBUTION OF
CONSTITUTIONALLY PROTECTED AS WELL AS OBSCENE BOOKS.  PP. 152-154. 

(D)  THE EXISTENCE OF THE STATE'S POWER TO PREVENT THE DISTRIBUTION
OF OBSCENE MATTER DOES NOT MEAN THAT THERE CAN BE NO CONSTITUTIONAL
BARRIER TO ANY FORM OF PRACTICAL EXERCISE OF THAT POWER.  HENCE THAT
THERE MAY BE MORE DIFFICULTY IN ENFORCING A REGULATION AGAINST THE
DISTRIBUTION OF OBSCENE LITERATURE IF BOOKSELLERS MAY NOT BE HELD TO AN
ABSOLUTE CRIMINAL LIABILITY DOES NOT REQUIRE A DIFFERENT RESULT HERE. 
PP. 154-155. 

SMITH V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, LOS ANGELES COUNTY. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

APPELLANT, THE PROPRIETOR OF A BOOKSTORE, WAS CONVICTED IN A
CALIFORNIA MUNICIPAL COURT UNDER A LOS ANGELES CITY ORDINANCE WHICH
MAKES IT UNLAWFUL "FOR ANY PERSON TO HAVE IN HIS POSSESSION ANY OBSCENE
OR INDECENT WRITING, (OR) BOOK  ...  IN ANY PLACE OF BUSINESS WHERE
...  BOOKS  ...  ARE SOLD OR KEPT FOR SALE."  (FN1)  THE OFFENSE WAS
DEFINED BY THE MUNICIPAL COURT, AND BY THE APPELLATE DEPARTMENT OF THE
SUPERIOR COURT, (FN2) WHICH AFFIRMED THE MUNICIPAL COURT JUDGMENT
IMPOSING A JAIL SENTENCE ON APPELLANT, AS CONSISTING SOLELY OF THE
POSSESSION, IN THE APPELLANT'S BOOKSTORE, OF A CERTAIN BOOK FOUND UPON
JUDICIAL INVESTIGATION TO BE OBSCENE.  THE DEFINITION INCLUDED NO
ELEMENT OF SCIENTER - KNOWLEDGE BY THE APPELLANT OF THE CONTENTS OF THE
BOOK - AND THUS THE ORDINANCE WAS CONSTRUED AS IMPOSING A "STRICT" OR
"ABSOLUTE" CRIMINAL LIABILITY.  (FN3)  THE APPELLANT MADE TIMELY
OBJECTION BELOW THAT IF THE ORDINANCE WERE SO CONSTRUED IT WOULD BE IN
CONFLICT WITH THE CONSTITUTION OF THE UNITED STATES.  THIS CONTENTION,
TOGETHER WITH OTHER CONTENTIONS BASED ON THE CONSTITUTION, (FN4) WAS
REJECTED, AND THE CASE COMES HERE ON APPEAL.  28 U.S.C.  SEC. 1257(2);
358 U.S. 926. 

ALMOST 30 YEARS AGO, CHIEF JUSTICE HUGHES DECLARED FOR THIS COURT:
"IT IS NO LONGER OPEN TO DOUBT THAT THE LIBERTY OF THE PRESS, AND OF
SPEECH, IS WITHIN THE LIBERTY SAFEGUARDED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT FROM INVASION BY STATE ACTION.  IT WAS FOUND
IMPOSSIBLE TO CONCLUDE THAT THIS ESSENTIAL PERSONAL LIBERTY OF THE
CITIZEN WAS LEFT UNPROTECTED BY THE GENERAL GUARANTY OF FUNDAMENTAL
RIGHTS OF PERSON AND PROPERTY  ...  ."  NEAR V. MINNESOTA, 283 U.S.
697, 707.   IT IS TOO FAMILIAR FOR CITATION THAT SUCH HAS BEEN THE
DOCTRINE OF THIS COURT, IN RESPECT OF THESE FREEDOMS, EVER SINCE.  AND
IT ALSO REQUIRES NO ELABORATION THAT THE FREE PUBLICATION AND
DISSEMINATION OF BOOKS AND OTHER FORMS OF THE PRINTED WORD FURNISH VERY
FAMILIAR APPLICATIONS OF THESE CONSTITUTIONALLY PROTECTED FREEDOMS.  IT
IS OF COURSE NO MATTER THAT THE DISSEMINATION TAKES PLACE UNDER
COMMERCIAL AUSPICES.  SEE JOSEPH BURSTYN, INC., V. WILSON, 343 U.S.
495; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233.  CERTAINLY A RETAIL
BOOKSELLER PLAYS A MOST SIGNIFICANT ROLE IN THE PROCESS OF THE
DISTRIBUTION OF BOOKS. 

CALIFORNIA HERE IMPOSED A STRICT OR ABSOLUTE CRIMINAL RESPONSIBILITY
ON APPELLANT NOT TO HAVE OBSCENE BOOKS IN HIS SHOP.  "THE EXISTENCE OF
A MENS REA IS THE RULE OF, RATHER THAN THE EXCEPTION TO, THE PRINCIPLES
OF ANGLO-AMERICAN CRIMINAL JURISPRUDENCE."  DENNIS V. UNITED STATES,
341 U.S. 494, 500.  (FN5)  STILL, IT IS DOUBTLESS COMPETENT FOR THE
STATES TO CREATE STRICT CRIMINAL LIABILITIES BY DEFINING CRIMINAL
OFFENSES WITHOUT ANY ELEMENT OF SCIENTER - THOUGH EVEN WHERE NO FREEDOM
OF-EXPRESSION QUESTION IS INVOLVED, THERE IS PRECEDENT IN THIS COURT
THAT THIS POWER IS NOT WITHOUT LIMITATIONS.  SEE LAMBERT V. CALIFORNIA,
355 U.S. 225.  BUT THE QUESTION HERE IS AS TO THE VALIDITY OF THIS
ORDINANCE'S ELIMINATION OF THE SCIENTER REQUIREMENT - AN ELIMINATION
WHICH MAY TEND TO WORK A SUBSTANTIAL RESTRICTION ON THE FREEDOM OF
SPEECH AND OF THE PRESS.  OUR DECISIONS FURNISH EXAMPLES OF LEGAL
DEVICES AND DOCTRINES, IN MOST APPLICATIONS CONSISTENT WITH THE
CONSTITUTION, WHICH CANNOT BE APPLIED IN SETTINGS WHERE THEY HAVE THE
COLLATERAL EFFECT OF INHIBITING THE FREEDOM OF EXPRESSION, BY MAKING
THE INDIVIDUAL THE MORE RELUCTANT TO EXERCISE IT.  THE STATES GENERALLY
MAY REGULATE THE ALLOCATION OF THE BURDEN OF PROOF IN THEIR COURTS, AND
IT IS A COMMON PROCEDURAL DEVICE TO IMPOSE ON A TAXPAYER THE BURDEN OF
PROVING HIS ENTITLEMENT TO EXEMPTIONS FROM TAXATION, BUT WHERE WE
CONCEIVED THAT THIS DEVICE WAS BEING APPLIED IN A MANNER TENDING TO
CAUSE EVEN A SELF-IMPOSED RESTRICTION OF FREE EXPRESSION, WE STRUCK
DOWN ITS APPLICATION.  SPEISER V. RANDALL, 357 U.S. 513.  SEE NEAR V.
MINNESOTA, SUPRA, AT 712-713.  IT HAS BEEN STATED HERE THAT THE USUAL
DOCTRINES AS TO THE SEPARABILITY OF CONSTITUTIONAL AND UNCONSTITUTIONAL
APPLICATIONS OF STATUTES MAY NOT APPLY WHERE THEIR EFFECT IS TO LEAVE
STANDING A STATUTE PATENTLY CAPABLE OF MANY UNCONSTITUTIONAL
APPLICATIONS, THREATENING THOSE WHO VALIDLY EXERCISE THEIR RIGHTS OF
FREE EXPRESSION WITH THE EXPENSE AND INCONVENIENCE OF CRIMINAL
PROSECUTION.  THORNHILL V. ALABAMA, 310 U.S. 88, 97-98.  CF. STAUB V.
CITY OF BAXLEY, 355 U.S. 313.  (FN6)  AND THIS COURT HAS INTIMATED THAT
STRICTER STANDARDS OF PERMISSIBLE STATUTORY VAGUENESS MAY BE APPLIED TO
A STATUTE HAVING A POTENTIALLY INHIBITING EFFECT ON SPEECH; A MAN MAY
THE LESS BE REQUIRED TO ACT AT HIS PERIL HERE, BECAUSE THE FREE
DISSEMINATION OF IDEAS MAY BE THE LOSER.  WINTERS V. NEW YORK, 333 U.S.
507, 509-510, 517-518.  VERY MUCH TO THE POINT HERE, WHERE THE QUESTION
IS THE ELIMINATION OF THE MENTAL ELEMENT IN AN OFFENSE, IS THIS COURT'S
HOLDING IN WIEMAN V. UPDEGRAFF, 344 U.S. 183.  THERE AN OATH AS TO PAST
FREEDOM FROM MEMBERSHIP IN SUBVERSIVE ORGANIZATIONS, EXACTED BY A STATE
AS A QUALIFICATION FOR PUBLIC EMPLOYMENT, WAS HELD TO VIOLATE THE
CONSTITUTION IN THAT IT MADE NO DISTINCTION BETWEEN MEMBERS WHO HAD,
AND THOSE WHO HAD NOT, KNOWN OF THE ORGANIZATION'S CHARACTER.  THE
COURT SAID OF THE ELIMINATION OF SCIENTER IN THIS CONTEXT: "TO THUS
INHIBIT INDIVIDUAL FREEDOM OF MOVEMENT IS TO STIFLE THE FLOW OF
DEMOCRATIC EXPRESSION AND CONTROVERSY AT ONE OF ITS CHIEF SOURCES." 
ID., AT 191. 

THESE PRINCIPLES GUIDE US TO OUR DECISION HERE.  WE HAVE HELD THAT
OBSCENE SPEECH AND WRITINGS ARE NOT PROTECTED BY THE CONSTITUTIONAL
GUARANTEES OF FREEDOM OF SPEECH AND THE PRESS.  ROTH V. UNITED STATES,
354 U.S. 476.  (FN7)  THE ORDINANCE HERE IN QUESTION, TO BE SURE, ONLY
IMPOSES CRIMINAL SANCTIONS ON A BOOKSELLER IF IN FACT THERE IS TO BE
FOUND IN HIS SHOP AN OBSCENE BOOK.  BUT OUR HOLDING IN ROTH DOES NOT
RECOGNIZE ANY STATE POWER TO RESTRICT THE DISSEMINATION OF BOOKS WHICH
ARE NOT OBSCENE; AND WE THINK THIS ORDINANCE'S STRICT LIABILITY FEATURE
WOULD TEND SERIOUSLY TO HAVE THAT EFFECT, BY PENALIZING BOOKSELLERS,
EVEN THOUGH THEY HAD NOT THE SLIGHTEST NOTICE OF THE CHARACTER OF THE
BOOKS THEY SOLD.  THE APPELLEE AND THE COURT BELOW ANALOGIZE THIS
STRICT LIABILITY PENAL ORDINANCE TO FAMILIAR FORMS OF PENAL STATUTES
WHICH DISPENSE WITH ANY ELEMENT OF KNOWLEDGE ON THE PART OF THE PERSON
CHARGED, FOOD AND DRUG LEGISLATION BEING A PRINCIPAL EXAMPLE.  WE FIND
THE ANALOGY INSTRUCTIVE IN OUR EXAMINATION OF THE QUESTION BEFORE US.
THE USUAL RATIONALE FOR SUCH STATUTES IS THAT THE PUBLIC INTEREST IN
THE PURITY OF ITS FOOD IS SO GREAT AS TO WARRANT THE IMPOSITION OF THE
HIGHEST STANDARD OF CARE ON DISTRIBUTORS - IN FACT AN ABSOLUTE STANDARD
WHICH WILL NOT HEAR THE DISTRIBUTOR'S PLEA AS TO THE AMOUNT OF CARE HE
HAS USED.  CF. UNITED STATES V. BALINT, 258 U.S. 250, 252-253, 254. 
HIS IGNORANCE OF THE CHARACTER OF THE FOOD IS IRRELEVANT.  THERE IS NO
SPECIFIC CONSTITUTIONAL INHIBITION AGAINST MAKING THE DISTRIBUTORS OF
FOOD THE STRICTEST CENSORS OF THEIR MERCHANDISE, BUT THE CONSTITUTIONAL
GUARANTEES OF THE FREEDOM OF SPEECH AND OF THE PRESS STAND IN THE WAY
OF IMPOSING A SIMILAR REQUIREMENT ON THE BOOKSELLER.  BY DISPENSING
WITH ANY REQUIREMENT OF KNOWLEDGE OF THE CONTENTS OF THE BOOK ON THE
PART OF THE SELLER, THE ORDINANCE TENDS TO IMPOSE A SEVERE LIMITATION
ON THE PUBLIC'S ACCESS TO CONSTITUTIONALLY PROTECTED MATTER.  FOR IF
THE BOOKSELLER IS CRIMINALLY LIABLE WITHOUT KNOWLEDGE OF THE CONTENTS,
AND THE ORDINANCE FULFILLS ITS PURPOSE, (FN8) HE WILL TEND TO RESTRICT
THE BOOKS HE SELLS TO THOSE HE HAS INSPECTED; AND THUS THE STATE WILL
HAVE IMPOSED A RESTRICTION UPON THE DISTRIBUTION OF CONSTITUTIONALLY
PROTECTED AS WELL AS OBSCENE LITERATURE.  IT HAS BEEN WELL OBSERVED OF
A STATUTE CONSTRUED AS DISPENSING WITH ANY REQUIREMENT OF SCIENTER
THAT:  "EVERY BOOKSELLER WOULD BE PLACED UNDER AN OBLIGATION TO MAKE
HIMSELF AWARE OF THE CONTENTS OF EVERY BOOK IN HIS SHOP.  IT WOULD BE
ALTOGETHER UNREASONABLE TO DEMAND SO NEAR AN APPROACH TO OMNISCIENCE." 
(FN9)  THE KING V. EWART, 25 N.Z.L.R. 709, 729 (C.A.).  AND THE
BOOKSELLER'S BURDEN WOULD BECOME THE PUBLIC'S BURDEN, FOR BY
RESTRICTING HIM THE PUBLIC'S ACCESS TO READING MATTER WOULD BE
RESTRICTED.  IF THE CONTENTS OF BOOKSHOPS AND PERIODICAL STANDS WERE
RESTRICTED TO MATERIAL OF WHICH THEIR PROPRIETORS HAD MADE AN
INSPECTION, THEY MIGHT BE DEPLETED INDEED.  THE BOOKSELLER'S LIMITATION
IN THE AMOUNT OF READING MATERIAL WITH WHICH HE COULD FAMILIARIZE
HIMSELF, AND HIS TIMIDITY IN THE FACE OF HIS ABSOLUTE CRIMINAL
LIABILITY, THUS WOULD TEND TO RESTRICT THE PUBLIC'S ACCESS TO FORMS OF
THE PRINTED WORD WHICH THE STATE COULD NOT CONSTITUTIONALLY SUPPRESS
DIRECTLY.  THE BOOKSELLER'S SELF-CENSORSHIP, COMPELLED BY THE STATE,
WOULD BE A CENSORSHIP AFFECTING THE WHOLE PUBLIC, HARDLY LESS VIRULENT
FOR BEING PRIVATELY ADMINISTERED.  THROUGH IT, THE DISTRIBUTION OF ALL
BOOKS, BOTH OBSCENE AND NOT OBSCENE, WOULD BE IMPEDED. 

IT IS ARGUED THAT UNLESS THE SCIENTER REQUIREMENT IS DISPENSED WITH,
REGULATION OF THE DISTRIBUTION OF OBSCENE MATERIAL WILL BE INEFFECTIVE,
AS BOOKSELLERS WILL FALSELY DISCLAIM KNOWLEDGE OF THEIR BOOKS' CONTENTS
OR FALSELY DENY REASON TO SUSPECT THEIR OBSCENITY.  WE MIGHT OBSERVE
THAT IT HAS BEEN SOME TIME NOW SINCE THE LAW VIEWED ITSELF AS IMPOTENT
TO EXPLORE THE ACTUAL STATE OF A MAN'S MIND.  SEE POUND, THE ROLE OF
THE WILL IN LAW, 68 HARV. L. REV. 1.  CF. AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382, 411.  EYEWITNESS TESTIMONY OF A BOOKSELLER'S
PERUSAL OF A BOOK HARDLY NEED BE A NECESSARY ELEMENT IN PROVING HIS
AWARENESS OF ITS CONTENTS.  THE CIRCUMSTANCES MAY WARRANT THE INFERENCE
THAT HE WAS AWARE OF WHAT A BOOK CONTAINED, DESPITE HIS DENIAL. 

WE NEED NOT AND MOST DEFINITELY DO NOT PASS TODAY ON WHAT SORT OF
MENTAL ELEMENT IS REQUISITE TO A CONSTITUTIONALLY PERMISSIBLE
PROSECUTION OF A BOOKSELLER FOR CARRYING AN OBSCENE BOOK IN STOCK;
WHETHER HONEST MISTAKE AS TO WHETHER ITS CONTENTS IN FACT CONSTITUTED
OBSCENITY NEED BE AN EXCUSE; WHETHER THERE MIGHT BE CIRCUMSTANCES UNDER
WHICH THE STATE CONSTITUTIONALLY MIGHT REQUIRE THAT A BOOKSELLER
INVESTIGATE FURTHER, OR MIGHT PUT ON HIM THE BURDEN OF EXPLAINING WHY
HE DID NOT, AND WHAT SUCH CIRCUMSTANCES MIGHT BE.  DOUBTLESS ANY FORM
OF CRIMINAL OBSCENITY STATUTE APPLICABLE TO A BOOKSELLER WILL INDUCE
SOME TENDENCY TO SELF-CENSORSHIP AND HAVE SOME INHIBITORY EFFECT ON THE
DISSEMINATION OF MATERIAL NOT OBSCENE, BUT WE CONSIDER TODAY ONLY ONE
WHICH GOES TO THE EXTENT OF ELIMINATING ALL MENTAL ELEMENTS FROM THE
CRIME. 

WE HAVE SAID:  "THE FUNDAMENTAL FREEDOMS OF SPEECH AND PRESS HAVE
CONTRIBUTED GREATLY TO THE DEVELOPMENT AND WELL-BEING OF OUR FREE
SOCIETY AND ARE INDISPENSABLE TO ITS CONTINUED GROWTH.  CEASELESS
VIGILANCE IS THE WATCHWORD TO PREVENT THEIR EROSION BY CONGRESS OR BY
THE STATES.  THE DOOR BARRING FEDERAL AND STATE INTRUSION INTO THIS
AREA CANNOT BE LEFT AJAR; IT MUST BE KEPT TIGHTLY CLOSED AND OPENED
ONLY THE SLIGHTEST CRACK NECESSARY TO PREVENT ENCROACHMENT UPON MORE
IMPORTANT INTERESTS."  ROTH V. UNITED STATES, SUPRA, AT 488.  (FN10)
THIS ORDINANCE OPENS THAT DOOR TOO FAR.  THE EXISTENCE OF THE STATE'S
POWER TO PREVENT THE DISTRIBUTION OF OBSCENE MATTER DOES NOT MEAN THAT
THERE CAN BE NO CONSTITUTIONAL BARRIER TO ANY FORM OF PRACTICAL
EXERCISE OF THAT POWER.  CF. DEAN MILK CO. V. CITY OF MADISON, 340 U.S.
349.  IT IS PLAIN TO US THAT THE ORDINANCE IN QUESTION, THOUGH AIMED AT
OBSCENE MATTER, HAS SUCH A TENDENCY TO INHIBIT CONSTITUTIONALLY
PROTECTED EXPRESSION THAT IT CANNOT STAND UNDER THE CONSTITUTION. 
REVERSED. 

FN1  THE ORDINANCE IS SEC. 41.01.1 OF THE MUNICIPAL CODE OF THE CITY
OF LOS ANGELES.  IT PROVIDES:

"INDECENT WRITINGS, ETC. - POSSESSION PROHIBITED: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO HAVE IN HIS POSSESSION ANY
OBSCENE OR INDECENT WRITING, BOOK, PAMPHLET, PICTURE, PHOTOGRAPH,
DRAWING, FIGURE, MOTION PICTURE FILM, PHONOGRAPH RECORDING, WIRE
RECORDING OR TRANSCRIPTION OF ANY KIND IN ANY OF THE FOLLOWING PLACES: 

"1.  IN ANY SCHOOL, SCHOOL-GROUNDS, PUBLIC PARK OR PLAYGROUND OR IN
ANY PUBLIC PLACE, GROUNDS, STREET OR WAY WITHIN 300 YRADS OF ANY
SCHOOL, PARK OR PLAYGROUND. 

"2.  IN ANY PLACE OF BUSINESS WHERE ICE-CREAM, SOFT DRINKS, CANDY,
FOOD, SCHOOL SUPPLIES, MAGAZINES, BOOKS, PAMPHLETS, PAPERS, PICTURES OR
POSTCARDS ARE SOLD OR KEPT FOR SALE. 

"3.  IN ANY TOILET OR RESTROOM OPEN TO THE PUBLIC. 

"4.  IN ANY POOLROOM OR BILLIARD PARLOR, OR IN ANY PLACE WHERE
ALCOHOLIC LIQUOR IS SOLD OR OFFERED FOR SALE TO THE PUBLIC. 

"5. IN ANY PLACE WHERE PHONOGRAPH RECORDS, PHOTOGRAPHS, MOTION
PICTURES, OR TRANSCRIPTIONS OF ANY KIND ARE MADE, USED, MAINTAINED,
SOLD OR EXHIBITED." 

FN2  IN THIS SORT OF PROCEEDING, "THE HIGHEST COURT OF A STATE IN
WHICH A DECISION COULD BE HAD."  28 U.S.C. SEC. 1257.  CAL. CONST.,
ART. VI, SECS. 4, 4B, 5.  SEE EDWARDS V. CALIFORNIA, 314 U.S. 160,
171.    FN3  SEE HALL, GENERAL PRINCIPLES OF CRIMINAL LAW, P. 280.  THE
APPELLATE DEPARTMENT'S OPINION IS AT 161 CAL. APP. 2D SUPP. 860, 327
P.2D 636.  THE ORDINANCE'S ELIMINATION OF SCIENTER WAS, IN FACT, A
REASON ASSIGNED BY THAT COURT FOR UPHOLDING IT AS PERMISSIBLE
SUPPLEMENTARY MUNICIPAL LEGISLATION AGAINST THE CONTENTION THAT THE
FIELD WAS OCCUPIED BY CALIFORNIA PENAL CODE SEC. 311, A STATE-WIDE
OBSCENITY STATUTE WHICH REQUIRES SCIENTER. 

FN4  THESE OTHER CONTENTIONS, WHICH ARE MADE AGAIN HERE, ARE THAT
EVIDENCE OF A NATURE CONSTITUTIONALLY REQUIRED TO BE ALLOWED TO BE
GIVEN FOR THE DEFENSE AS TO THE OBSCENE CHARACTER OF A BOOK WAS NOT
PERMITTED TO BE INTRODUCED; THAT A CONSTITUTIONALLY IMPERMISSIBLE
STANDARD OF OBSCENITY WAS APPLIED BY THE TRIER OF THE FACTS; AND THAT
THE BOOK WAS NOT IN FACT OBSCENE.  IN THE LIGHT OF OUR DETERMINATION AS
TO THE CONSTITUTIONAL PERMISSIBILITY OF A STRICT LIABILITY LAW UNDER
THE CIRCUMSTANCES PRESENTED BY THIS CASE, WE NEED NOT PASS ON THESE
QUESTIONS.  FOR THE PURPOSES OF DISCUSSION, WE SHALL ASSUME WITHOUT
DECIDING THAT THE BOOK WAS CORRECTLY ADJUDGED BELOW TO BE OBSCENE. 

FN5  SEE ALSO WILLIAMS, CRIMINAL LAW - THE GENERAL PART, P. 238 ET
SEQ. 

FN6  SEE NOTE, 61 HARV. L. REV. 1208. 

FN7  IN THE ROTH OPINION THERE WAS ALSO DECIDED ALBERTS V.
CALIFORNIA, WHICH DEALT WITH THE POWER OF THE STATES IN THIS AREA. 

FN8  THE EFFECTIVENESS OF ABSOLUTE CRIMINAL LIABILITY LAWS IN
PROMOTING CAUTION HAS BEEN SUBJECTED TO CRITICISM.  SEE HALL, GENERAL
PRINCIPLES OF CRIMINAL LAW, PP. 300-301.  SEE GENERALLY WILLIAMS,
CRIMINAL LAW - THE GENERAL PART, PP. 267-274; SAYRE, PUBLIC WELFARE
OFFENSES, 33 COL L. REV. 55; MUELLER, ON COMMON LAW MENS REA, 42 MINN.
L. REV. 1043; MORISSETTE V. UNITED STATES, 342 U.S. 246. 

FN9  COMMON-LAW PROSECUTIONS FOR THE DISSEMINATION OF OBSCENE MATTER
STRICTLY ADHERED TO THE REQUIREMENT OF SCIENTER.  SEE THE DISCUSSION IN
ATTORNEY GENERAL V. SIMPSON, 93 IRISH L.T. 33, 37-38 (DIST. CT.).  CF.
OBSCENE PUBLICATIONS ACT, 1959, 7 & 8 ELIZ.  2, C. 66, SEC. 2(5);
AMERICAN LAW INSTITUTE MODEL PENAL CODE SEC. 207.10(7) (TENTATIVE DRAFT
NO. 6, MAY 1957), AND COMMENTS, PP. 49-51. 

THE GENERAL CALIFORNIA OBSCENITY STATUTE, PENAL CODE SEC. 311,
REQUIRES SCIENTER, SEE NOTE 3, AND WAS OF COURSE SUSTAINED BY US IN
ROTH V. UNITED STATES, SUPRA.  SEE NOTE 7. 

FN10  WE EMPHASIZE IN ROTH, AT P. 484, THAT THERE IS A "LIMITED AREA"
WHERE SUCH OTHER INTERESTS PREVAIL, AND WE LISTED REPRESENTATIVE
DECISIONS IN NOTE 14 AT THAT PAGE. 

MR. JUSTICE BLACK, CONCURRING. 

THE APPELLANT WAS SENTENCED TO PRISON FOR POSSESSING IN HIS BOOKSTORE
AN "OBSCENE" BOOK IN VIOLATION OF A LOS ANGELES CITY ORDINANCE.  (FN1)
I CONCUR IN THE JUDGMENT HOLDING THAT ORDINANCE UNCONSTITUTIONAL, BUT
NOT FOR THE REASONS GIVEN IN THE COURT'S OPINION. 

THE COURT INVALIDATES THE ORDINANCE SOLELY BECAUSE IT PENALIZES A
BOOKSELLER FOR MERE POSSESSION OF AN "OBSCENE" BOOK, EVEN THOUGH HE IS
UNAWARE OF ITS OBSCENITY.  THE GROUNDS ON WHICH THE COURT DRAWS A
CONSTITUTIONAL DISTINCTION BETWEEN A LAW THAT PUNISHES POSSESSION OF A
BOOK WITH KNOWLEDGE OF ITS "OBSCENITY" AND A LAW THAT PUNISHES WITHOUT
SUCH KNOWLEDGE ARE NOT PERSUASIVE TO ME.  THOSE GROUNDS ARE THAT
CONVICTION OF A BOOKSELLER FOR POSSESSION OF AN "OBSCENE" BOOK WHEN HE
IS UNAWARE OF ITS OBSCENITY "WILL TEND TO RESTRICT THE BOOKS HE SELLS
TO THOSE HE HAS INSPECTED," AND THEREFORE "MAY TEND TO WORK A
SUBSTANTIAL RESTRICTION ON FREEDOM OF SPEECH."  THE FACT IS, OF COURSE,
THAT PRISON SENTENCES FOR POSSESSION OF "OBSCENE" BOOKS WILL SERIOUSLY
BURDEN FREEDOM OF THE PRESS WHETHER PUNISHMENT IS IMPOSED WITH OR
WITHOUT KNOWLEDGE OF THE OBSCENITY.  THE COURT'S OPINION CORRECTLY
POINTS OUT HOW LITTLE EXTRA BURDEN WILL BE IMPOSED ON PROSECUTORS BY
REQUIRING PROOF THAT A BOOKSELLER WAS AWARE OF A BOOK'S CONTENTS WHEN
HE POSSESSED IT.  AND IF THE CONSTITUTION'S REQUIREMENT OF KNOWLEDGE IS
SO EASILY MET, THE RESULT OF THIS CASE IS THAT ONE PARTICULAR
BOOKSELLER GAINS HIS FREEDOM, BUT THE WAY IS LEFT OPEN FOR STATE
CENSORSHIP AND PUNISHMENT OF ALL OTHER BOOKSELLERS BY MERELY ADDING A
FEW NEW WORDS TO OLD CENSORSHIP LAWS.  OUR CONSTITUTIONAL SAFEGUARDS
FOR SPEECH AND PRESS THEREFORE GAIN LITTLE.  THEIR VICTORY, IF ANY, IS
A PYRRHIC ONE.  CF. BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 267, AT 275
(DISSENTING OPINION). 

THAT IT IS APPARENTLY INTENDED TO LEAVE THE WAY OPEN FOR BOTH FEDERAL
AND STATE GOVERNMENTS TO ABRIDGE SPEECH AND PRESS (TO THE EXTENT THIS
COURT APPROVES) IS ALSO INDICATED BY THE FOLLOWING STATEMENTS IN THE
COURT'S OPINION:  "'THE DOOR BARRING FEDERAL AND STATE INTRUSION INTO
THIS AREA (FREEDOM OF SPEECH AND PRESS) CANNOT BE LEFT AJAR; IT MUST BE
KEPT TIGHTLY CLOSED AND OPENED ONLY THE SLIGHTEST CRACK NECESSARY TO
PREVENT ENCROACHMENT UPON MORE IMPORTANT INTERESTS.'  ...  THIS
ORDINANCE OPENS THAT DOOR TOO FAR." 

THIS STATEMENT RAISES A NUMBER OF QUESTIONS FOR ME.  WHAT ARE THE
"MORE IMPORTANT" INTERESTS FOR THE PROTECTION OF WHICH CONSTITUTIONAL
FREEDOM OF SPEECH AND PRESS MUST BE GIVEN SECOND PLACE?  WHAT IS THE
STANDARD BY WHICH ONE CAN DETERMINE WHEN ABRIDGMENT OF SPEECH AND PRESS
GOES "TOO FAR" AND WHEN IT IS SLIGHT ENOUGH TO BE CONSTITUTIONALLY
ALLOWABLE?  IS THIS MOMENTOUS DECISION TO BE LEFT TO A MAJORITY OF THIS
COURT ON A CASE-BY-CASE BASIS?  WHAT EXPRESS PROVISION OR PROVISIONS OF
THE CONSTITUTION PUT FREEDOM OF SPEECH AND PRESS IN THIS PRECARIOUS
POSITION OF SUBORDINATION AND INSECURITY? 

CERTAINLY THE FIRST AMENDMENT'S LANGUAGE LEAVES NO ROOM FOR INFERENCE
THAT ABRIDGMENTS OF SPEECH AND PRESS CAN BE MADE JUST BECAUSE THEY ARE
SLIGHT.  THAT AMENDMENT PROVIDES, IN SIMPLE WORDS, THAT "CONGRESS SHALL
MAKE NO LAW  ...  ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS."  I
READ "NO LAW  ...  ABRIDGING" TO MEAN NO LAW ABRIDGING.  THE FIRST
AMENDMENT, WHICH IS THE SUPREME LAW OF THE LAND, HAS THUS FIXED ITS OWN
VALUE ON FREEDOM OF SPEECH AND PRESS BY PUTTING THESE FREEDOMS WHOLLY
"BEYOND THE REACH" OF FEDERAL POWER TO ABRIDGE.  (FN2)  NO OTHER
PROVISION OF THE CONSTITUTION PURPORTS TO DILUTE THE SCOPE OF THESE
UNEQUIVOCAL COMMANDS OF THE FIRST AMENDMENT.  CONSEQUENTLY, I DO NOT
BELIEVE THAT ANY FEDERAL AGENCIES, INCLUDING CONGRESS AND THIS COURT,
HAVE POWER OR AUTHORITY TO SUBORDINATE SPEECH AND PRESS TO WHAT THEY
THINK ARE "MORE IMPORTANT INTERESTS."  THE CONTRARY NOTION IS, IN MY
JUDGMENT, COURT-MADE NOT CONSTITUTION-MADE. 

STATE INTRUSION OR ABRIDGMENT OF FREEDOM OF SPEECH AND PRESS RAISES A
DIFFERENT QUESTION, SINCE THE FIRST AMENDMENT BY ITS TERMS REFERS ONLY
TO LAWS PASSED BY CONGRESS.  BUT I ADHERE TO OUR PRIOR DECISIONS
HOLDING THAT THE FOURTEENTH AMENDMENT MADE THE FIRST APPLICABLE TO THE
STATES.  SEE CASES COLLECTED IN THE CONCURRING OPINION IN SPEISER V.
RANDALL, 357 U.S. 513, 530.  IT FOLLOWS THAT I AM FOR REVERSING THIS
CASE BECAUSE I BELIEVE THAT THE LOS ANGELES ORDINANCE SETS UP A
CENSORSHIP IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS. 

IF, AS IT SEEMS, WE ARE ON THE WAY TO NATIONAL CENSORSHIP, I THINK IT
TIMELY TO SUGGEST AGAIN THAT THERE ARE GRAVE DOUBTS IN MY MIND AS TO
THE DESIRABILITY OR CONSTITUTIONALITY OF THIS COURT'S BECOMING A
SUPREME BOARD OF CENSORS - READING BOOKS AND VIEWING TELEVISION
PERFORMANCES TO DETERMINE WHETHER, IF PERMITTED, THEY MIGHT ADVERSELY
AFFECT THE MORALS OF THE PEOPLE THROUGHOUT THE MANY DIVERSIFIED LOCAL
COMMUNITIES IN THIS VAST COUNTRY.  (FN3)  IT IS TRUE THAT THE ORDINANCE
HERE IS ON ITS FACE ONLY APPLICABLE TO "OBSCENE OR INDECENT WRITING." 
IT IS ALSO TRUE THAT THIS PARTICULAR KIND OF CENSORSHIP IS CONSIDERED
BY MANY TO BE "THE OBNOXIOUS THING IN ITS MILDEST AND LEAST REPULSIVE
FORM  ...  ."  BUT "ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET
THEIR FIRST FOOTING IN THAT WAY  ...  .  IT IS THE DUTY OF COURTS TO BE
WATCHFUL FOR THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST ANY
STEALTHY ENCROACHMENTS THEREON."  BOYD V. UNITED STATES, 116 U.S. 616,
635.   WHILE IT IS "OBSCENITY AND INDECENCY" BEFORE US TODAY, THE
EXPERIENCE OF MANKIND - BOTH ANCIENT AND MODERN - SHOWS THAT THIS TYPE
OF ELASTIC PHRASE CAN, AND MOST LIKELY WILL, BE SYNONYMOUS WITH THE
POLITICAL AND MAYBE WITH THE RELIGIOUS UNORTHODOXY OF TOMORROW. 

CENSORSHIP IS THE DEADLY EMENY OF FREEDOM AND PROGRESS.  THE PLAIN
LANGUAGE OF THE CONSTITUTION FORBIDS IT.  I PROTEST AGAINST THE
JUDICIARY GIVING IT A FOOTHOLD HERE. 

FN1  AS SHOWN BY NOTE 1 OF THE COURT'S OPINION, THE ORDINANCE MAKES
IT UNLAWFUL TO POSSESS AT PLACES DEFINED ANY OBSCENE OR INDECENT
WRITING, BOOK, PAMPHLET, PICTURE, PHOTOGRAPH, DRAWING, FIGURE, MOTION
PICTURE FILM, PHONOGRAPH RECORDING, WIRE RECORDING OR TRANSCRIPTION OF
ANY KIND. 

FN2  ANOTHER CONCURRING OPINION HAS SAID THAT IT WOULD WRONG JAMES
MADISON AND THOMAS JEFFERSON TO ATTRIBUTE TO THEM THE VIEW THAT THE
FIRST AMENDMENT PLACES SPEECH WHOLLY BEYOND THE REACH OF THE FEDERAL
GOVERNMENT.  OF COURSE, BOTH MEN MADE MANY STATEMENTS ON THE SUBJECT OF
FREEDOM OF SPEECH AND PRESS DURING THEIR LONG LIVES AND NO ONE CAN
DEFINE THEIR PRECISE VIEWS WITH COMPLETE CERTAINTY.   HOWEVER, SEVERAL
STATEMENTS BY BOTH MADISON AND JEFFERSON INDICATE THAT THEY MAY HAVE
HELD THE VIEW THAT THE CONCURRING OPINION TERMS "DOCTRINAIRE
ABSOLUTISM." 

JAMES MADISON, IN EXPLORING THE SWEEP OF THE FIRST AMENDMENT'S
LIMITATION ON THE FEDERAL GOVERNMENT WHEN HE OFFERED THE BILL OF RIGHTS
TO CONGRESS IN 1789, IS REPORTED AS HAVING SAID, "THE RIGHT OF FREEDOM
OF SPEECH IS SECURED; THE LIBERTY OF THE PRESS IS EXPRESSLY DECLARED TO
BE BEYOND THE REACH OF THIS GOVERNMENT  ... ."  1 ANNALS OF CONG. 738. 
FOR REPORTS OF OTHER DISCUSSIONS BY MR. MADISON SEE PP. 424-449, 660,
704-756.  ELEVEN YEARS LATER HE WROTE:  "WITHOUT TRACING FARTHER THE
EVIDENCE ON THIS SUBJECT, IT WOULD SEEM SCARCELY POSSIBLE TO DOUBT THAT
NO POWER WHATEVER OVER THE PRESS WAS SUPPOSED TO BE DELEGATED BY THE
CONSTITUTION, AS IT ORIGINALLY STOOD, AND THAT THE AMENDMENT WAS
INTENDED AS A POSITIVE AND ABSOLUTE RESERVATION OF IT."  6 MADISON,
WRITINGS (HUNT ED. 1906), 341, 391, AND SEE GENERALLY, 385-393, 399. 

THOMAS JEFFERSON'S VIEWS OF THE BREADTH OF THE FIRST AMENDMENT'S
PROHIBITION AGAINST ABRIDGMENT OF SPEECH AND PRESS BY THE FEDERAL
GOVERNMENT ARE ILLUSTRATED BY THE FOLLOWING STATEMENT HE MADE IN 1798:
"(THE FIRST AMENDMENT) THEREBY GUARDS IN THE SAME SENTENCE, AND UNDER
THE SAME WORDS, THE FREEDOM OF RELIGION, OF SPEECH, AND OF THE PRESS:
INSOMUCH, THAT WHATEVER VIOLATES EITHER, THROWS DOWN THE SANCTUARY
WHICH COVERS THE OTHERS, AND THAT LIBELS, FALSEHOOD, AND DEFAMATION,
EQUALLY WITH HERESY AND FALSE RELIGION, ARE WITHHELD FROM THE
COGNIZANCE OF FEDERAL TRIBUNALS."  8 JEFFERSON, WRITINGS (FORD ED.
1904), 464-465.  FOR ANOTHER EARLY DISCUSSION OF THE SCOPE OF THE FIRST
AMENDMENT AS A COMPLETE BAR TO ALL FEDERAL ABRIDGMENT OF SPEECH AND
PRESS SEE ST. GEORGE TUCKER'S COMMENTS ON THE ADEQUACY OF STATE FORUMS
AND STATE LAWS TO GRANT ALL THE PROTECTION NEEDED AGAINST DEFAMATION
AND LIBEL.  1 BLACKSTONE, COMMENTARIES (TUCKER ED. 1803) 299. 

OF COURSE, NEITHER JEFFERSON NOR MADISON FACED THE PROBLEM BEFORE THE
COURT IN THIS CASE, BECAUSE IT WAS NOT UNTIL THE FOURTEENTH AMENDMENT
WAS PASSED THAT ANY OF THE PROHIBITIONS OF THE FIRST AMENDMENT WERE
HELD APPLICABLE TO THE STATES.  AT THE TIME JEFFERSON AND MADISON
LIVED, BEFORE THE FOURTEENTH AMENDMENT WAS PASSED, THE FIRST AMENDMENT
DID NOT PROHIBIT THE STATES FROM ABRIDGING FREE SPEECH BY THE ENACTMENT
OF DEFAMATION OR LIBEL LAWS.  CF. BARRON V. BALTIMORE, 7 PET. 243.  BUT
THE MEANING OF THE FIRST AMENDMENT, AS IT WAS UNDERSTOOD BY TWO SUCH
RENOWNED CONSTITUTIONAL ARCHITECTS AS JEFFERSON AND MADISON, IS
IMPORTANT IN THIS CASE BECAUSE OF OUR PRIOR CASES HOLDING THAT THE
FOURTEENTH AMENDMENT APPLIES THE FIRST, WITH ALL THE FORCE IT BRINGS TO
BEAR AGAINST THE FEDERAL GOVERNMENT, AGAINST THE STATES.  SEE, E.G.,
WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 639,
AND OTHER CASES COLLECTED IN SPEISER V. RANDALL, 357 U.S. 513, 530
(CONCURRING OPINION).  BUT SEE BEAUHARNAIS V. ILLINOIS, 343 U.S. 250,
288 (COURT AND DISSENTING OPINIONS). 

FN3  KINGSLEY INTERNATIONAL PICTURES CORP. V. REGENTS OF THE
UNIVERSITY OF NEW YORK, 360 U.S. 684, 690-691 (CONCURRING OPINION). 
THE VIEWS OF A CONCURRING OPINION HERE, IF ACCEPTED, WOULD MAKE THIS
COURT A STILL MORE INAPPROPRIATE "BOARD OF CENSORS" FOR THE WHOLE
COUNTRY.  THAT OPINION, CONCEDING THAT "THERE IS NO EXTERNAL MEASURING
ROD OF OBSCENITY," ARGUES THAT THE CONSTITUTION REQUIRES THE ISSUE OF
OBSCENITY TO BE DETERMINED ON THE BASIS OF "CONTEMPORARY COMMUNITY
STANDARDS" - "THE LITERARY, PSYCHOLOGICAL OR MORAL STANDARDS OF A
COMMUNITY."  IF, AS ARGUED IN THE CONCURRING OPINION, IT VIOLATES THE
FEDERAL CONSTITUTION FOR A LOCAL COURT TO REJECT THE EVIDENCE OF
"EXPERTS" ON CONTEMPORARY COMMUNITY STANDARDS OF THE VAGUE WORD
"OBSCENITY," IT SEEMS ODD TO SAY THAT THIS COURT SHOULD HAVE THE FINAL
WORD ON WHAT THOSE COMMUNITY STANDARDS ARE OR SHOULD BE.  I DO NOT
BELIEVE THE WORDS "LIBERTY" AND "DUE PROCESS" IN THE FOURTEENTH
AMENDMENT GIVE THIS COURT THAT MUCH POWER. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE APPELLANT WAS CONVICTED OF VIOLATING THE CITY ORDINANCE OF LOS
ANGELES PROHIBITING POSSESSION OF OBSCENE BOOKS IN A BOOKSHOP.  HIS
CONVICTION WAS AFFIRMED BY THE HIGHEST COURT OF CALIFORNIA TO WHICH HE
COULD APPEAL AND IT IS THE JUDGMENT OF THAT COURT THAT WE ARE ASKED TO
REVERSE.  APPELLANT CLAIMS THREE GROUNDS OF INVALIDITY UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  HE URGES THE INVALIDITY OF
THE ORDINANCE AS AN ABRIDGMENT OF THE FREEDOM OF SPEECH WHICH THE
GUARANTEE OF "LIBERTY" OF THE FOURTEENTH AMENDMENT SAFEGUARDS AGAINST
STATE ACTION, AND THIS FOR THE REASON THAT CALIFORNIA LAW HOLDS A
BOOKSELLER CRIMINALLY LIABLE FOR POSSESSING AN OBSCENE BOOK, WHOLLY
APART FROM ANY SCIENTER ON HIS PART REGARDING THE BOOK'S OBSCENITY. 
THE SECOND CONSTITUTIONAL INFIRMITY URGED BY APPELLANT IS THE EXCLUSION
OF APPROPRIATELY OFFERED TESTIMONY THROUGH DULY QUALIFIED WITNESSES
REGARDING THE PREVAILING LITERARY STANDARDS AND THE LITERARY AND MORAL
CRITERIA BY WHICH BOOKS RELEVANTLY COMPARABLE TO THE BOOK IN
CONTROVERSY ARE DEEMED NOT OBSCENE.  THIS EXCLUSION DEPRIVED THE
APPELLANT, SUCH IS THE CLAIM, OF IMPORTANT RELEVANT TESTIMONY BEARING
ON THE ISSUE OF OBSCENITY AND THEREFORE RESTRICTED HIM IN MAKING HIS
DEFENSE.  THE APPELLANT'S ULTIMATE CONTENTION IS THAT THE QUESTIONED
BOOK IS NOT OBSCENE AND THAT A BOOKSELLER'S POSSESSION OF IT COULD NOT
BE FORBIDDEN.    THE COURT DOES NOT REACH, AND NEITHER DO I, THE ISSUE
OF OBSCENITY.  THE COURT DISPOSES OF THE CASE EXCLUSIVELY BY SUSTAINING
THE APPELLANT'S CLAIM THAT THE "LIBERTY" PROTECTED BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT PRECLUDES A STATE FROM MAKING THE
DISSEMINATION OF OBSCENE BOOKS AN OFFENSE MERELY BECAUSE A BOOK IN A
BOOKSHOP IS FOUND TO BE OBSCENE WITHOUT SOME PROOF OF THE BOOKSELLER'S
KNOWLEDGE TOUCHING THE OBSCENITY OF ITS CONTENTS. 

THE COURT ACCEPTS THE SETTLED PRINCIPLE OF CONSTITUTIONAL LAW THAT
TRAFFIC IN OBSCENE LITERATURE MAY BE OUTLAWED AS A CRIME.  BUT IT HOLDS
THAT ONE CANNOT BE MADE AMENABLE TO SUCH CRIMINAL OUTLAWRY UNLESS HE IS
CHARGEABLE WITH KNOWLEDGE OF THE OBSCENITY.  OBVIOUSLY THE COURT IS NOT
HOLDING THAT A BOOKSELLER MUST FAMILIARIZE HIMSELF WITH THE CONTENTS OF
EVERY BOOK IN HIS SHOP.  NO LESS OBVIOUSLY, THE COURT DOES NOT HOLD
THAT A BOOKSELLER WHO INSULATES HIMSELF AGAINST KNOWLEDGE ABOUT AN
OFFENDING BOOK IS THEREBY FREE TO MAINTAIN AN EMPORIUM FOR SMUT.  HOW
MUCH OR HOW LITTLE AWARENESS THAT A BOOK MAY BE FOUND TO BE OBSCENE
SUFFICES TO ESTABLISH SCIENTER, OR WHAT KIND OF EVIDENCE MAY SATISFY
THE HOW MUCH OR THE HOW LITTLE, THE COURT LEAVES FOR ANOTHER DAY. 

I AM NO FRIEND OF DECIDING A CASE BEYOND WHAT THE IMMEDIATE
CONTROVERSY REQUIRES, PARTICULARLY WHEN THE LIMITS OF CONSTITUTIONAL
POWER ARE AT STAKE.  ON THE OTHER HAND, A CASE BEFORE THIS COURT IS NOT
JUST A CASE.  INEVITABLY ITS DISPOSITION CARRIES IMPLICATIONS AND GIVES
DIRECTIONS BEYOND ITS PARTICULAR FACTS.  WERE THE COURT HOLDING THAT
THIS KIND OF PROSECUTION FOR OBSCENITY REQUIRES PROOF OF THE GUILTY
MIND ASSOCIATED WITH THE CONCEPT OF CRIMES DEEMED INFAMOUS, THAT WOULD
BE THAT AND NO FURTHER ELUCIDATION WOULD BE NEEDED.  BUT IF THE
REQUIREMENT OF SCIENTER IN OBSCENITY CASES PLAYS A ROLE DIFFERENT FROM
THE NORMAL ROLE OF MENS REA IN THE DEFINITION OF CRIME, A DIFFERENT
PROBLEM CONFRONTS THE COURT.  IF, AS I ASSUME, THE REQUIREMENT OF
SCIENTER IS AN OBSCENITY PROSECUTION LIKE THE ONE BEFORE US DOES NOT
MEAN THAT THE BOOKSELLER MUST HAVE READ THE BOOK OR MUST SUBSTANTIALLY
KNOW ITS CONTENTS ON THE ONE HAND, NOR ON THE OTHER THAT HE CAN
EXCULPATE HIMSELF BY STUDIOUS AVOIDANCE OF KNOWLEDGE ABOUT ITS
CONTENTS, THEN, I SUBMIT, INVALIDATING AN OBSCENITY STATUTE BECAUSE A
STATE DISPENSES ALTOGETHER WITH THE REQUIREMENT OF SCIENTER DOES
REQUIRE SOME INDICATION OF THE SCOPE AND QUALITY OF SCIENTER THAT IS
REQUIRED.  IT OUGHT AT LEAST TO BE MADE CLEAR, AND NOT LEFT FOR FUTURE
LITIGATION, THAT THE COURT'S DECISION IN ITS PRACTICAL EFFECT IS NOT
INTENDED TO NULLIFY THE CONCEDED POWER OF THE STATE TO PROHIBIT
BOOKSELLERS FROM TRAFFICKING IN OBSCENE LITERATURE. 

OF COURSE THERE IS AN IMPORTANT DIFFERENCE IN THE SCOPE OF THE POWER
OF A STATE TO REGULATE WHAT FEEDS THE BELLY AND WHAT FEEDS THE BRAIN. 
THE DOCTRINE OF UNITED STATES V. BALINT, 258 U.S. 250, HAS ITS
APPROPRIATE LIMITS.  THE RULE THAT SCIENTER IS NOT REQUIRED IN
PROSECUTIONS FOR SO-CALLED PUBLIC WELFARE OFFENSES IS A LIMITATION ON
THE GENERAL PRINCIPLE THAT AWARENESS OF WHAT ONE IS DOING IS A
PREREQUISITE FOR THE INFLICTION OF PUNISHMENT.  SEE MORISSETTE V.
UNITED STATES, 342 U.S. 246.  THE BALANCE THAT IS STRUCK BETWEEN THIS
VITAL PRINCIPLE AND THE OVERRIDING PUBLIC MENACE INHERENT IN THE
TRAFFICKING IN NOXIOUS FOOD AND DRUGS CANNOT BE CARRIED OVER IN
BALANCING THE VITAL ROLE OF FREE SPEECH AS AGAINST SOCIETY'S INTEREST
IN DEALING WITH PORNOGRAPHY.  ON THE OTHER HAND, THE CONSTITUTIONAL
PROTECTION OF NON-OBSCENE SPEECH CANNOT ABSORB THE CONSTITUTIONAL POWER
OF THE STATES TO DEAL WITH OBSCENITY.  IT WOULD CERTAINLY WRONG THEM TO
ATTRIBUTE TO JEFFERSON OR MADISON A DOCTRINAIRE ABSOLUTISM THAT WOULD
BAR LEGAL RESTRICTION AGAINST OBSCENITY AS A DENIAL OF FREE SPEECH. 
(FN1)  WE HAVE NOT YET BEEN TOLD THAT ALL LAWS AGAINST DEFAMATION AND
AGAINST INCITING CRIME BY SPEECH, SEE FOX V. WASHINGTON, 236 U.S. 273
(1915), ARE UNCONSTITUTIONAL AS IMPERMISSIBLE CURBS UPON UNRESTRICTABLE
UTTERANCE.  WE KNOW THIS WAS NOT JEFFERSON'S VIEW, ANY MORE THAN IT WAS
THE VIEW OF HOLMES AND BRANDEIS, JJ., THE ORIGINATING ARCHITECTS OF OUR
PREVAILING CONSTITUTIONAL LAW PROTECTIVE OF FREEDOM OF SPEECH. 

ACCORDINGLY, THE PROOF OF SCIENTER THAT IS REQUIRED TO MAKE
PROSECUTIONS FOR OBSCENITY CONSTITUTIONAL CANNOT BE OF A NATURE TO
NULLIFY FOR ALL PRACTICAL PURPOSES THE POWER OF THE STATE TO DEAL WITH
OBSCENITY.  OUT OF REGARD FOR THE STATE'S INTEREST, THE COURT SUGGESTS
AN UNGUIDING, VAGUE STANDARD FOR ESTABLISHING "AWARENESS" BY THE
BOOKSELLER OF THE CONTENTS OF A CHALLENGED BOOK IN CONTRADICTION OF HIS
DISCLAIMER OF KNOWLEDGE OF ITS CONTENTS.  A BOOKSELLER MAY, OF COURSE,
BE WELL AWARE OF THE NATURE OF A BOOK AND ITS APPEAL WITHOUT HAVING
OPENED ITS COVER, OR, IN ANY TRUE SENSE, HAVING KNOWLEDGE OF THE BOOK. 
AS A PRACTICAL MATTER THEREFORE THE EXERCISE OF THE CONSTITUTIONAL
RIGHT OF A STATE TO REGULATE OBSCENITY WILL CARRY WITH IT SOME HAZARD
TO THE DISSEMINATION BY A BOOKSELLER OF NON-OBSCENE LITERATURE.  SUCH
DIFFICULTIES OR HAZARDS ARE INHERENT IN MANY DOMAINS OF THE LAW FOR THE
SIMPLE REASON THAT LAW CANNOT AVAIL ITSELF OF FACTORS ASCERTAINED
QUANTITATIVELY OR EVEN WHOLLY IMPERSONALLY. 

THE UNCERTAINTIES PERTAINING TO THE SCOPE OF SCIENTER REQUISITE FOR
AN OBSCENITY PROSECUTION AND THE SPECULATIVE PROOF THAT THE ISSUE IS
LIKELY TO ENTAIL, ARE CONSIDERATIONS THAT REINFORCE THE RIGHT OF ONE
CHARGED WITH OBSCENITY - A RIGHT IMPLICIT IN THE VERY NATURE OF THE
LEGAL CONCEPT OF OBSCENITY - TO ENLIGHTEN THE JUDGMENT OF THE TRIBUNAL,
BE IT THE JURY OR AS IN THIS CASE THE JUDGE, REGARDING THE PREVAILING
LITERARY AND MORAL COMMUNITY STANDARDS AND TO DO SO THROUGH QUALIFIED
EXPERTS.  IT IS IMMATERIAL WHETHER THE BASIS OF THE EXCLUSION OF SUCH
TESTIMONY IS IRRELEVANCE, OR THE INCOMPETENCE OF EXPERTS TO TESTIFY TO
SUCH MATTERS.  THE TWO REASONS COALESCE, FOR COMMUNITY STANDARDS OR THE
PSYCHOLOGICAL OR PHYSIOLOGICAL CONSEQUENCES OF QUESTIONED LITERATURE
CAN AS A MATTER OF FACT HARDLY BE ESTABLISHED EXCEPT THROUGH EXPERTS. 
THEREFORE, TO EXCLUDE SUCH EXPERT TESTIMONY IS IN EFFECT TO EXCLUDE AS
IRRELEVANT EVIDENCE THAT GOES TO THE VERY ESSENCE OF THE DEFENSE AND
THEREFORE TO THE CONSTITUTIONAL SAFEGUARDS OF DUE PROCESS.  THE
DETERMINATION OF OBSCENITY NO DOUBT RESTS WITH JUDGE OR JURY.  OF
COURSE THE TESTIMONY OF EXPERTS WOULD NOT DISPLACE JUDGE OR JURY IN
DETERMINING THE ULTIMATE QUESTION WHETHER THE PARTICULAR BOOK IS
OBSCENE, ANY MORE THAN THE TESTIMONY OF EXPERTS RELATING TO THE STATE
OF THE ART IN PATENT SUITS DETERMINES THE PATENTABILITY OF A
CONTROVERTED DEVICE. 

THERE IS NO EXTERNAL MEASURING ROD FOR OBSCENITY.  NEITHER, ON THE
OTHER HAND, IS ITS ASCERTAINMENT A MERELY SUBJECTIVE REFLECTION OF THE
TASTE OR MORAL OUTLOOK OF INDIVIDUAL JURORS OR INDIVIDUAL JUDGES. 
SINCE THE LAW THROUGH ITS FUNCTIONARIES IS "APPLYING CONTEMPORARY
COMMUNITY STANDARDS" IN DETERMINING WHAT CONSTITUTES OBSCENITY, ROTH V.
UNITED STATES, 354 U.S. 476, 489, IT SURELY MUST BE DEEMED RATIONAL,
AND THEREFORE RELEVANT TO THE ISSUE OF OBSCENITY, TO ALLOW LIGHT TO BE
SHED ON WHAT THOSE "CONTEMPORARY COMMUNITY STANDARDS" ARE.  THEIR
INTERPRETATION OUGHT NOT TO DEPEND SOLELY ON THE NECESSARILY LIMITED,
HIT-OR-MISS, SUBJECTIVE VIEW OF WHAT THEY ARE BELIEVED TO BE BY THE
INDIVIDUAL JUROR OR JUDGE.  IT BEARS REPETITION THAT THE DETERMINATION
OF OBSCENITY IS FOR JUROR OR JUDGE NOT ON THE BASIS OF HIS PERSONAL
UPBRINGING OR RESTRICTED REFLECTION OR PARTICULAR EXPERIENCE OF LIFE,
BUT ON THE BASIS OF "CONTEMPORARY COMMUNITY STANDARDS."  CAN IT BE
DOUBTED THAT THERE IS A GREAT DIFFERENCE IN WHAT IS TO BE DEEMED
OBSCENE IN 1959 COMPARED WITH WHAT WAS DEEMED OBSCENE IN 1859?  THE
DIFFERENCE DERIVES FROM A SHIFT IN COMMUNITY FEELING REGARDING WHAT IS
TO BE DEEMED PRURIENT OR NOT PRURIENT BY REASON OF THE EFFECTS
ATTRIBUTABLE TO THIS OR THAT PARTICULAR WRITING.  CHANGES IN THE
INTELLECTUAL AND MORAL CLIMATE OF SOCIETY, IN PART DOUBTLESS DUE TO THE
VIEWS AND FINDINGS OF SPECIALISTS, AFFORD SHIFTING FOUNDATIONS FOR THE
ATTRIBUTION.  WHAT MAY WELL HAVE BEEN CONSONANT "WITH MID-VICTORIAN
MORALS, DOES NOT SEEM TO ME TO ANSWER TO THE UNDERSTANDING AND MORALITY
OF THE PRESENT TIME."  UNITED STATES, V. KENNERLEY, 209 F. 119, 120. 
THIS WAS THE VIEW OF JUDGE LEARNED HAND DECADES AGO REFLECTING AN
ATMOSPHERE OF PROPRIETY MUCH CLOSER TO MID-VICTORIAN DAYS THAN IS
OURS.  UNLESS WE DISBELIEVE THAT THE LITERARY, PSYCHOLOGICAL OR MORAL
STANDARDS OF A COMMUNITY CAN BE MADE FRUITFUL AND ILLUMINATING SUBJECTS
OF INQUIRY BY THOSE WHO GIVE THEIR LIFE TO SUCH INQUIRIES, IT WAS
VIOLATIVE OF "DUE PROCESS" TO EXCLUDE THE CONSTITUTIONALLY RELEVANT
EVIDENCE PROFFERED IN THIS CASE.  THE IMPORTANCE OF THIS TYPE OF
EVIDENCE IN PROSECUTIONS FOR OBSCENITY HAS BEEN IMPRESSIVELY ATTESTED
BY THE RECENT DEBATES IN THE HOUSE OF COMMONS DEALING WITH THE
INSERTION OF SUCH A PROVISION IN THE ENACTMENT OF THE OBSCENE
PUBLICATIONS ACT, 1959, 7 & 8 ELIZ.  2, CH. 66 (FN2) (SEE 597
PARLIAMENTARY DEBATES, H. COMM., NO. 36 (DECEMBER 16, 1958), COLS. 
1009-1010, 1042-1043; 604 PARLIAMENTARY DEBATES, H. COMM., NO. 100
(APRIL 24, 1959), COL. 803), AS WELL AS BY THE MOST CONSIDERED THINKING
ON THIS SUBJECT IN THE PROPOSED MODEL PENAL CODE OF THE AMERICAN LAW
INSTITUTE.  SEE A.L.I. MODEL PENAL CODE, TENTATIVE DRAFT NO. 6 (1957),
SEC.  207.10.  (FN3)  FOR THE REASONS I HAVE INDICATED, I WOULD MAKE
THE RIGHT TO INTRODUCE SUCH EVIDENCE A REQUIREMENT OF DUE PROCESS IN
OBSCENITY PROSECUTIONS. 

FN1  THE PUBLICATION OF OBSCENE PRINTED MATTER WAS CLEARLY
ESTABLISHED AS A COMMON-LAW OFFENSE IN ENGLAND IN 1727 BY THE CASE OF
REX V. CURL, 2 STR.  788, WHICH OVERRULED REG. V. READ, (1708) 11 MOD.
142, WHERE IT HAD BEEN HELD THAT SUCH OFFENSES WERE EXCLUSIVELY WITHIN
THE JURISDICTION OF THE ECCLESIASTICAL COURTS.  SEE ALSO REX V. WILKES,
(1770) 4 BURR.  2527.  THE COMMON-LAW LIABILITY WAS CARRIED ACROSS THE
ATLANTIC BEFORE THE UNITED STATES WAS ESTABLISHED AND APPEARS EARLY IN
THE STATES.  IN 1786, IN NEW YORK, A COPYRIGHT ACT SPECIFICALLY STATED
THAT "NOTHING IN THIS ACT SHALL ...  AUTHORISE ANY PERSON OR PERSONS TO
...  PUBLISH ANY BOOK  ...  THAT MAY BE PROFANE, TREASONABLE,
DEFAMATORY, OR INJURIOUS TO GOVERNMENT, MORALS, OR RELIGION."  AN ACT
TO PROMOTE LITERATURE, ACT OF APRIL 29, 1786, C. LIV, SEC. IV, 1 LAWS
OF NEW YORK (JONES AND VARICK)(1777-1789) 321.  IN PENNSYLVANIA, IN
1815, A PROSECUTION WAS FOUNDED ON COMMON-LAW LIABILITY.  COMMONWEALTH
V. SHARPLESS, 2 SERG.  & RAWLE, 91.  AND IN MARYLAND, WHEN A STATUTE
REGULATING OBSCENE PUBLICATIONS WAS ENACTED IN 1853, IT WAS RECITED
THAT "ALTHOUGH IN THE JUDGMENT OF THE LEGISLATURE, SUCH ADVERTISEMENTS
AND PUBLICATIONS ARE CONTRA BONOS MORES, AND PUNISHABLE BY THE COMMON
LAW, IT IS DESIRABLE THAT THE COMMON LAW IN THIS REGARD BE RE-ENACTED
AND ENFORCED; ...  ."  ACT OF MAY 16, 1853, MD. LAWS 1853, C. 183. 

MOREOVER, AS EARLY AS THE ELEVENTH YEAR OF THE REIGN OF QUEEN ANNE
(1711-1712), WELL BEFORE THE JURISDICTION AT COMMON LAW EMERGED IN
ENGLAND, MASSACHUSETTS ENACTED A STATUTE WHICH PROVIDED "THAT WHOSOEVER
SHALL BE CONVICTED OF COMPOSING, WRITING, PRINTING OR PUBLISHING, OF
ANY FILTHY OBSCENE OR PROPHANE SONG, PAMPHLET  ...  SHALL BE PUNISHED
...  ."  ACTS OF 1711-1712, C. I, CHARTER OF THE PROVINCE OF THE
MASSACHUSETTS-BAY, P. 172 (1759).  IT IS UNCLEAR WHETHER THE WELL-KNOWN
PROSECUTION IN MASSACHUSETTS IN 1821, COMMONWEALTH V. HOLMES, 17 MASS.
*336, WAS FOUNDED ON THIS STATUTE OR ON COMMON-LAW LIABILITY, ALTHOUGH
IN 1945 THE SUPREME JUDICIAL COURT INDICATED THAT IT REGARDED THIS
EARLY STATUTE AS HAVING BEEN IN EFFECT UNTIL A SUCCESSOR ENACTMENT OF
1835, REVISED STATUTES OF THE COMMONWEALTH OF MASSACHUSETTS, C. 130,
SEC. 10 (1836).  COMMONWEALTH V. ISENSTADT, 318 MASS. 543, 547, 62
N.E.2D 840, 843, N. 1.  SEE ALSO GRANT AND ANGOFF, MASSACHUSETTS AND
CENSORSHIP, III, 10 B.U.L. REV. 147 (1930).  THEREAFTER THE OFFENSE WAS
MADE STATUTORY IN OTHER STATES.  SEE, E.G., ACT OF MARCH 14, 1848, C.
VIII, SEC. 7 (1847-1848), VA. LAWS 111; ACT OF MAY 16, 1853, C. 183
(1853), LAWS OF MARYLAND 212; ACT OF APRIL 28, 1868, C. 430, 7 N.Y.
STAT. AT LARGE (1867-1870) 309. 

FN2  SECTION 4 OF THIS ACT PROVIDES: 

"(1)  A PERSON SHALL NOT BE CONVICTED OF AN OFFENSE AGAINST  ...
THIS ACT  ...  IF IT IS PROVED THAT PUBLICATION OF THE ARTICLE IN
QUESTION IS JUSTIFIED AS BEING FOR THE PUBLIC GOOD ON THE GROUND THAT
IT IS IN THE INTERESTS OF SCIENCE, LITERATURE, ART OR LEARNING, OR OF
OTHER OBJECTS OF GENERAL CONCERN. 

"(2)  IT IS HEREBY DECLARED THAT THE OPINION OF EXPERTS AS TO THE
LITERARY, ARTISTIC, SCIENTIFIC OR OTHER MERITS OF AN ARTICLE MAY BE
ADMITTED IN ANY PROCEEDINGS UNDER THIS ACT EITHER TO ESTABLISH OR TO
NEGATIVE THE SAID GROUND." 

FN3  SUBSECTION (2) OF THIS DRAFT SECTION PROVIDES IN PART: 

"  ...  IN ANY PROSECUTION FOR AN OFFENSE UNDER THIS SECTION EVIDENCE
SHALL BE ADMISSIBLE TO SHOW:

"(A)  THE CHARACTER OF THE AUDIENCE FOR WHICH THE MATERIAL WAS
DESIGNED OR TO WHICH IT WAS DIRECTED.    "(B)  WHAT THE PREDOMINANT
APPEAL OF THE MATERIAL WOULD BE FOR ORDINARY ADULTS OR A SPECIAL
AUDIENCE, AND WHAT EFFECT, IF ANY, IT WOULD PROBABLY HAVE ON BEHAVIOR
OF SUCH PEOPLE. 

"(C)  ARTISTIC, LITERARY, SCIENTIFIC, EDUCATIONAL OR OTHER MERITS OF
THE MATERIAL. 

"(E)  APPEAL TO PRURIENT INTEREST, OR ABSENCE THEREOF, IN ADVERTISING
OR OTHER PROMOTION OF THE MATERIAL. 

     *         *         *         *         * 

"EXPERT TESTIMONY AND TESTIMONY OF THE AUTHOR, CREATOR OR PUBLISHER
RELATING TO FACTORS ENTERING INTO THE DETERMINATION OF THE ISSUE OF
OBSCENITY SHALL BE ADMISSIBLE."    MR. JUSTICE DOUGLAS, CONCURRING. 

I NEED NOT REPEAT HERE ALL I SAID IN MY DISSENT IN ROTH V. UNITED
STATES, 354 U.S. 476, 508, TO UNDERLINE MY CONVICTION THAT NEITHER THE
AUTHOR NOR THE DISTRIBUTOR OF THIS BOOK CAN BE PUNISHED UNDER OUR BILL
OF RIGHTS FOR PUBLISHING OR DISTRIBUTING IT.  THE NOTION THAT OBSCENE
PUBLICATIONS OR UTTERANCES WERE NOT INCLUDED IN FREE SPEECH DEVELOPED
IN THIS COUNTRY MUCH LATER THAN THE ADOPTION OF THE FIRST AMENDMENT, AS
THE JUDICIAL AND LEGISLATIVE DEVELOPMENTS IN THIS COUNTRY SHOW.  OUR
LEADING AUTHORITIES ON THE SUBJECT HAVE SUMMARIZED THE MATTER AS
FOLLOWS: 

"IN THE UNITED STATES BEFORE THE CIVIL WAR THERE WERE FEW REPORTED
DECISIONS INVOLVING OBSCENE LITERATURE.  THIS OF COURSE IS NO
INDICATION THAT SUCH LITERATURE WAS NOT IN CIRCULATION AT THAT TIME;
THE PERSISTENCE OF PORNOGRAPHY IS ENTIRELY TOO STRONG TO WARRANT SUCH
AN INFERENCE.  NOR IS IT AN INDICATION THAT THE PEOPLE OF THE TIME WERE
TOTALLY INDIFFERENT TO THE PROPRIETIES OF THE LITERATURE THEY READ.  IN
1851 NATHANIEL HAWTHORNE'S THE SCARLET LETTER WAS BITTERLY ATTACKED AS
AN IMMORAL BOOK THAT DEGRADED LITERATURE AND ENCOURAGED SOCIAL
LICENTIOUSNESS.  THE LACK OF CASES MERELY MEANS THAT THE PROBLEM OF
OBSCENE LITERATURE WAS NOT THOUGHT TO BE OF SUFFICIENT IMPORTANCE TO
JUSTIFY AROUSING THE FORCES OF THE STATE TO CENSORSHIP."  LOCKHART AND
MCCLURE, LITERATURE, THE LAW OF OBSCENITY, AND THE CONSTITUTION, 38
MINN. L. REV. 295, 324-325. 

NEITHER WE NOR LEGISLATURES HAVE POWER, AS I SEE IT, TO WEIGH THE
VALUES OF SPEECH OR UTTERANCE AGAINST SILENCE.  THE ONLY GROUNDS FOR
SUPPRESSING THIS BOOK ARE VERY NARROW.  I HAVE READ IT; AND WHILE IT IS
REPULSIVE TO ME, ITS PUBLICATION OR DISTRIBUTION CAN BE
CONSTITUTIONALLY PUNISHED ONLY ON A SHOWING NOT ATTEMPTED HERE.  MY
VIEW WAS STATED IN THE ROTH CASE, AT 514: 

"FREEDOM OF EXPRESSION CAN BE SUPPRESSED IF, AND TO THE EXTENT THAT,
IT IS SO CLOSELY BRIGADED WITH ILLEGAL ACTION AS TO BE AN INSEPARABLE
PART OF IT.  GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490, 498; LABOR
BOARD V. VIRGINIA POWER CO., 314 U.S. 469, 477-478.  AS A PEOPLE, WE
CANNOT AFFORD TO RELAX THAT STANDARD.  FOR THE TEST THAT SUPPRESSES A
CHEAP TRACT TODAY CAN SUPPRESS A LITERARY GEM TOMORROW.  ALL IT NEED DO
IS TO INCITE A LASCIVIOUS THOUGHT OR AROUSE A LUSTFUL DESIRE.  THE LIST
OF BOOKS THAT JUDGES OR JURIES CAN PLACE IN THAT CATEGORY IS ENDLESS." 

YET MY VIEW IS IN THE MINORITY; AND RATHER FLUID TESTS OF OBSCENITY
PREVAIL WHICH REQUIRE JUDGES TO READ CONDEMNED LITERATURE AND PASS
JUDGMENT ON IT.  THIS ROLE OF CENSOR IN WHICH WE FIND OURSELVES IS NOT
AN EDIFYING ONE.  BUT SINCE BY THE PREVAILING SCHOOL OF THOUGHT WE MUST
PERFORM IT, I SEE NO HARM, AND PERHAPS SOME GOOD, IN THE RULE FASHIONED
BY THE COURT WHICH REQUIRES A SHOWING OF SCIENTER.  FOR IT RECOGNIZES
IMPLICITLY THAT THESE FIRST AMENDMENT RIGHTS, BY REASON OF THE STRICT
COMMAND IN THAT AMENDMENT - A COMMAND THAT CARRIES OVER TO THE STATES
BY REASON OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT - ARE
PREFERRED RIGHTS.  WHAT THE COURT DOES TODAY MAY POSSIBLY PROVIDE SOME
SMALL DEGREE OF SAFEGUARD TO BOOKSELLERS BY MAKING THOSE WHO PATROL
BOOKSTALLS PROCEED LESS HIGHHANDEDLY THAN HAS BEEN THEIR CUSTOM.* 

*SEE CHAFEE, FREE SPEECH IN THE UNITED STATES (1941), PP. 536-540;
LOCKHART AND MCCLURE, LITERATURE, THE LAW OF OBSCENITY, AND THE
CONSTITUTION, 38 MINN. L. REV. 295, 302-316; DANIELS, THE CENSORSHIP OF
BOOKS (1954), P. 76 ET SEQ.; BLANSHARD, THE RIGHT TO READ (1955), P.
180 ET SEQ.; FELLMAN, THE CENSORSHIP OF BOOKS (1957).  AND SEE NEW
AMERICAN LIBRARY OF WORLD LITERATURE V. ALLEN, 114 F. SUPP. 823. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

THE STRIKING DOWN OF LOCAL LEGISLATION IS ALWAYS SERIOUS BUSINESS FOR
THIS COURT.  IN MY OPINION IN THE ROTH CASE, 354 U.S., AT 503-508, I
EXPRESSED THE VIEW THAT STATE POWER IN THE OBSCENITY FIELD HAS A WIDER
SCOPE THAN FEDERAL POWER.  THE QUESTION WHETHER SCIENTER IS A
CONSTITUTIONALLY REQUIRED ELEMENT IN A CRIMINAL OBSCENITY STATUTE IS
INTIMATELY RELATED TO THE CONSTITUTIONAL SCOPE OF THE POWER TO BAR
MATERIAL AS OBSCENE, FOR THE IMPACT OF SUCH A REQUIREMENT ON EFFECTIVE
PROSECUTION MAY BE ONE THING WHERE THE SCOPE OF THE POWER TO PROSCRIBE
IS BROAD AND QUITE ANOTHER WHERE THE SCOPE IS NARROW.  PROOF OF
SCIENTER MAY ENTAIL NO GREAT BURDEN IN THE CASE OF OBVIOUSLY OBSCENE
MATERIAL; IT MAY, HOWEVER, BECOME VERY DIFFICULT WHERE THE CHARACTER OF
THE MATERIAL IS MORE DEBATABLE.  IN MY VIEW THEN, THE SCIENTER QUESTION
INVOLVES CONSIDERATIONS OF A DIFFERENT ORDER DEPENDING ON WHETHER A
STATE OR A FEDERAL STATUTE IS INVOLVED.  WE HAVE HERE A STATE
ORDINANCE, AND ON THE MEAGRE DATA BEFORE US I WOULD NOT REACH THE
QUESTION WHETHER THE ABSENCE OF A SCIENTER ELEMENT RENDERS THE
ORDINANCE UNCONSTITUTIONAL.  I MUST SAY, HOWEVER, THAT THE GENERALITIES
IN THE COURT'S OPINION STRIKING DOWN THE ORDINANCE LEAVE ME
UNCONVINCED. 

FROM THE POINT OF VIEW OF THE FREE DISSEMINATION OF CONSTITUTIONALLY
PROTECTED IDEAS, THE COURT INVALIDATES THE ORDINANCE ON THE GROUND THAT
ITS EFFECT MAY BE TO INDUCE BOOKSELLERS TO RESTRICT THEIR OFFERINGS OF
NONOBSCENE LITERARY MERCHANDISE THROUGH FEAR OF PROSECUTION FOR
UNWITTINGLY HAVING ON THEIR SHELVES AN OBSCENE PUBLICATION.  FROM THE
POINT OF VIEW OF THE STATE'S INTEREST IN PROTECTING ITS CITIZENS
AGAINST THE DISSEMINATION OF OBSCENE MATERIAL, THE COURT IN EFFECT SAYS
THAT PROVING THE STATE OF A MAN'S MIND IS LITTLE MORE DIFFICULT THAN
PROVING THE STATE OF HIS DIGESTION, BUT ALSO INTIMATES THAT A RELAXED
STANDARD OF MENS REA WOULD SATISFY CONSTITUTIONAL REQUIREMENTS.  THIS
IS FOR ME TOO ROUGH A BALANCING OF THE COMPETING INTERESTS AT STAKE. 
SUCH A BALANCING IS UNAVOIDABLY REQUIRED IN THIS KIND OF CONSTITUTIONAL
ADJUDICATION, NOTWITHSTANDING THAT IT ARISES IN THE DOMAIN OF LIBERTY
OF SPEECH AND PRESS.  A MORE CRITICAL APPRAISAL OF BOTH SIDES OF THE
CONSTITUTIONAL BALANCE, NOT POSSIBLE ON THE MEAGRE MATERIAL BEFORE US,
SEEMS TO ME REQUIRED BEFORE THE ORDINANCE CAN BE STRUCK DOWN ON THIS
GROUND.  FOR, AS THE CONCURRING OPINIONS OF MY BROTHERS BLACK AND
FRANKFURTER SHOW, THE CONCLUSION THAT THIS ORDINANCE, BUT NOT ONE
EMBODYING SOME ELEMENT OF SCIENTER, IS LIKELY TO RESTRICT THE
DISSEMINATION OF LEGITIMATE LITERATURE SEEMS MORE DIALECTICAL THAN
REAL. 

I AM ALSO NOT PERSUADED THAT THE ORDINANCE IN QUESTION WAS
UNCONSTITUTIONALLY APPLIED IN THIS INSTANCE MERELY BECAUSE OF THE STATE
COURT'S REFUSAL TO ADMIT EXPERT TESTIMONY.  I AGREE WITH MY BROTHER
FRANKFURTER THAT THE TRIER OF AN OBSCENITY CASE MUST TAKE INTO ACCOUNT
"CONTEMPORARY COMMUNITY STANDARDS," ROTH V. UNITED STATES, 354 U.S.
476, 489.  THIS MEANS THAT, REGARDLESS OF THE ELEMENTS OF THE OFFENSE
UNDER STATE LAW, THE FOURTEENTH AMENDMENT DOES NOT PERMIT A CONVICTION
SUCH AS WAS OBTAINED HERE (FN1) UNLESS THE WORK COMPLAINED OF IS FOUND
SUBSTANTIALLY TO EXCEED THE LIMITS OF CANDOR SET BY CONTEMPORARY
COMMUNITY STANDARDS.  (FN2)  THE COMMUNITY CANNOT, WHERE LIBERTY OF
SPEECH AND PRESS ARE AT ISSUE, CONDEMN THAT WHICH IT GENERALLY
TOLERATES.  THIS BEING SO, IT FOLLOWS THAT DUE PROCESS - "USING THAT
TERM IN ITS PRIMARY SENSE OF AN OPPORTUNITY TO BE HEARD AND TO DEFEND
(A)  ...  SUBSTANTIVE RIGHT," BRINKERHOFF-FARIS CO. V. HILL, 281 U.S.
673, 678 - REQUIRES A STATE TO ALLOW A LITIGANT IN SOME MANNER TO
INTRODUCE PROOF ON THIS SCORE.  WHILE A STATE IS NOT DEBARRED FROM
REGARDING THE TRIER OF FACT AS THE EMBODIMENT OF COMMUNITY STANDARDS,
COMPETENT TO JUDGE A CHALLENGED WORK AGAINST THOSE STANDARDS, (FN3) IT
IS NOT PRIVILEGED TO REBUFF ALL EFFORTS TO ENLIGHTEN OR PERSUADE THE
TRIER. 

HOWEVER, I WOULD NOT HOLD THAT ANY PARTICULAR KIND OF EVIDENCE MUST
BE ADMITTED, SPECIFICALLY, THAT THE CONSTITUTION REQUIRES THAT ORAL
OPINION TESTIMONY BY EXPERTS BE HEARD.  THERE ARE OTHER WAYS IN WHICH
PROOF CAN BE MADE, AS THIS VERY CASE DEMONSTRATES.  APPELLANT ATTEMPTED
TO COMPARE THE CONTENTS OF THE WORK WITH THAT OF OTHER ALLEGEDLY
SIMILAR PUBLICATIONS WHICH WERE OPENLY PUBLISHED, SOLD AND PURCHASED,
AND WHICH RECEIVED WIDE GENERAL ACCEPTANCE.  WHERE THERE IS A VARIETY
OF MEANS, EVEN THOUGH IT MAY BE CONSIDERED THAT EXPERT TESTIMONY IS THE
MOST CONVENIENT AND PRACTICABLE METHOD OF PROOF, I THINK IT IS GOING
TOO FAR TO SAY THAT SUCH A METHOD IS CONSTITUTIONALLY COMPELLED, AND
THAT A STATE MAY NOT CONCLUDE, FOR REASONS RESPONSIVE TO ITS
TRADITIONAL DOCTRINES OF EVIDENCE LAW, THAT THE ISSUE OF COMMUNITY
STANDARDS MAY NOT BE THE SUBJECT OF EXPERT TESTIMONY.  I KNOW OF NO
CASE WHERE THIS COURT, ON CONSTITUTIONAL GROUNDS, HAS REQUIRED A STATE
TO SANCTION A PARTICULAR MODE OF PROOF. 

IN MY OPINION THIS CONVICTION IS FATALLY DEFECTIVE IN THAT THE TRIAL
JUDGE, AS I READ THE RECORD, TURNED ASIDE EVERY ATTEMPT BY APPELLANT TO
INTRODUCE EVIDENCE BEARING ON COMMUNITY STANDARDS.  THE EXCLUSIONARY
RULINGS WERE NOT LIMITED TO OFFERED EXPERT TESTIMONY.  THIS HAD THE
EFFECT OF DEPRIVING APPELLANT OF THE OPPORTUNITY TO OFFER ANY PROOF ON
A CONSTITUTIONALLY RELEVANT ISSUE.  ON THIS GROUND I WOULD REVERSE THE
JUDGMENT BELOW, AND REMAND THE CASE FOR A NEW TRIAL. 

FN1  WE ARE CONCERNED IN THIS INSTANCE WITH AN OBJECTION TO WHAT A
BOOK PORTRAYS, NOT TO WHAT IT TEACHES.  CF. KINGSLEY PICTURES CORP. V.
REGENTS, 360 U.S. 684. 

FN2  THE MOST NOTABLE EXPRESSION OF THIS LIMITATION IS THAT OF JUDGE
LEARNED HAND, IN UNITED STATES V. KENNERLEY, 209 F. 119, 121:  "IF
THERE BE NO ABSTRACT DEFINITION,  ...  SHOULD NOT THE WORD 'OBSCENE' BE
ALLOWED TO INDICATE THE PRESENT CRITICAL POINT IN THE COMPROMISE
BETWEEN CANDOR AND SHAME AT WHICH THE COMMUNITY MAY HAVE ARRIVED HERE
AND NOW?"  SEE ALSO THE EXPOSITION OF THIS VIEW IN AMERICAN LAW
INSTITUTE, MODEL PENAL CODE (TENTATIVE DRAFT NO. 6), AT P. 30.  IT MAY
BE THAT THE ROTH CASE EMBODIES THIS RESTRICTION, SEE 354 U.S., AT 487,
N. 20; BUT SEE ID., AT 499-500 (SEPARATE OPINION). 

FN3  SUCH A VIEW DOES NOT OF COURSE MEAN THAT THE ISSUE IS TO BE
TRIED ACCORDING TO THE PERSONAL STANDARDS OF THE JUDGE OR JURY. 
..END :

















MINNEAPOLIS & ST. LOUIS RAILWAY CO. V. UNITED STATES 361 U.S. 173 


NO. 12.  ARGUED NOVEMBER 16-17, 1959.  - DECIDED DECEMBER 14, 1959.* -
165 F. SUPP. 893, AFFIRMED. 

*TOGETHER WITH NO. 27, SOUTH DAKOTA ET AL. V. UNITED STATES ET AL.,
AND NO. 28, MINNESOTA ET AL. V. UNITED STATES ET AL., ALSO ON APPEALS
FROM THE SAME COURT. 


UNDER SEC. 5(2) OF THE INTERSTATE COMMERCE ACT, THE COMMISSION WAS
CONFRONTED WITH RIVAL APPLICATIONS BY SEVERAL RAILROADS FOR AUTHORITY
TO ACQUIRE CONTROL OF THE TOLEDO, PEORIA & WESTERN RAILROAD, AN
INDEPENDENT, SHORT-LINE, "BRIDGE CARRIER" OF THROUGH EAST-WEST TRAFFIC
BY-PASSING THE CONGESTED CHICAGO AND ST. LOUIS GATEWAYS AND CONNECTING
WITH 16 OTHER RAILROADS.  AFTER EXTENDED HEARINGS, THE COMMISSION FOUND
THAT THE PLAN FOR JOINT CONTROL OF WESTERN BY THE SANTA FE AND
PENNSYLVANIA RAILROADS CONTEMPLATED THAT WESTERN WOULD CONTINUE TO BE
OPERATED AS A SEPARATE AND INDEPENDENT CARRIER WITH RESPONSIBLE LOCAL
MANAGEMENT AND THAT ALL EXISTING ROUTES VIA WESTERN WOULD BE MAINTAINED
AND KEPT OPEN WITHOUT DISCRIMINATION BETWEEN CONNECTING LINES OF
RAILROADS; BUT THAT THE PLAN OF THE MINNEAPOLIS & ST. LOUIS RAILROAD TO
ACQUIRE SOLE CONTROL OF WESTERN CONTEMPLATED ITS DISAPPEARANCE AS AN
INDEPENDENT AND NEUTRAL CONNECTION FOR 15 OTHER CARRIERS, THAT IT WOULD
BE EXTREMELY HARMFUL TO OTHER CARRIERS AND THAT IT WOULD RESULT IN
TERMINATION OF THE EMPLOYMENT OF MOST OF WESTERN'S 24 EXECUTIVES AND
225 OTHER EMPLOYEES.  THE COMMISSION CONCLUDED THAT THE ACQUISITION AND
PLAN OF OPERATION BY THE SANTA FE AND PENNSYLVANIA, SUBJECT TO STATED
CONDITIONS, WAS WITHIN THE SCOPE OF SEC. 5(2) OF THE ACT, THAT THE
PROPOSED TERMS AND CONDITIONS WERE JUST AND REASONABLE, AND THAT THE
TRANSACTION WOULD BE CONSISTENT WITH THE PUBLIC INTEREST.  IT,
THEREFORE, APPROVED THE SANTA FE-PENNSYLVANIA APPLICATION, DISMISSED
THE MINNEAPOLIS APPLICATION, AND DENIED APPLICATIONS BY SEVERAL
INTERVENING RAILROADS FOR PERMISSION TO PARTICIPATE IN THE ACQUISITION
OF WESTERN'S STOCK.  THE DISTRICT COURT SUSTAINED THE COMMISSION'S
ORDER.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 176-194. 

1.  THE RECORD SHOWS THAT THE COMMISSION'S FINDING THAT CONTINUED
OPERATION OF WESTERN AS A "SEPARATE AND INDEPENDENT CARRIER" WAS
REQUIRED BY THE "PUBLIC INTEREST" DID NOT DEPRIVE THE MINNEAPOLIS & ST.
LOUIS RAILROAD OF "FAIR COMPARATIVE CONSIDERATION" AND THAT IT WAS MADE
AFTER FULL AND FAIR CONSIDERATION; AND THE DISTRICT COURT DID NOT ERR
IN SO HOLDING.  PP. 184-185. 

2.  NOTWITHSTANDING APPELLANTS' CONTENTION THAT ACQUISITION OF
WESTERN BY SANTA FE AND PENNSYLVANIA WOULD CREATE A COMBINATION IN
RESTRAINT OF COMMERCE IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT AND
WOULD LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY IN VIOLATION OF
SEC. 7 OF THE CLAYTON ACT, THE RECORD SHOWS THAT THE COMMISSION FULLY
ESTIMATED THE SCOPE AND APPRAISED THE EFFECTS OF ANY RESULTING
CURTAILMENT OF COMPETITION AND CONCLUDED THAT THE PROPOSED ACQUISITION
AND PLAN OF OPERATION WOULD NOT RESULT IN ANY SIGNIFICANT LESSENING OF
COMPETITION; AND THIS DETERMINATION RESTS UPON ADEQUATE FINDINGS,
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS WELL WITHIN THE LIMITS OF THE
COMMISSION'S DISCRETION UNDER THE ACT.  PP. 185-189. 

(A) ALTHOUGH SEC. 5(11) DOES NOT AUTHORIZE THE COMMISSION TO "IGNORE"
THE ANTITRUST LAWS, IT DOES AUTHORIZE THE COMMISSION TO APPROVE
ACQUISITIONS WHICH MIGHT OTHERWISE VIOLATE THE ANTITRUST LAWS, IF IT
FINDS THAT SUCH ACQUISITIONS ARE IN THE PUBLIC INTEREST, AND, UPON
APPROVAL OF THE ACQUISITIONS BY THE COMMISSION, IT RELIEVES THE
ACQUIRING CARRIERS FROM THE OPERATION OF THE ANTITRUST LAWS.  PP. 185
187. 

(B)  AS RESPECTS RAILROAD ACQUISITIONS, THE COMMISSION IS NOT SO
BOUND BY THE ANTITRUST LAWS THAT IT MUST PERMIT THEM TO OVERBEAR WHAT
IT FINDS TO BE IN THE PUBLIC INTEREST, AND THE WISDOM AND EXPERIENCE OF
THE COMMISSION, NOT OF THE COURTS, MUST DETERMINE WHETHER THE PROPOSED
ACQUISITION IS IN THE PUBLIC INTEREST.  PP. 187-188. 

(C)  THE COMMISSION GAVE EXTENSIVE CONSIDERATION TO THIS CONTENTION
OF APPELLANTS AND DETERMINED THAT THE ACQUISITION OF WESTERN BY SANTA
FE AND PENNSYLVANIA AND THEIR PLAN OF OPERATION OF WESTERN WOULD NOT
RESULT IN ANY SIGNIFICANT LESSENING OF COMPETITION; AND THAT
DETERMINATION WAS BASED UPON ADEQUATE FINDINGS, SUPPORTED BY
SUBSTANTIAL EVIDENCE, AND WAS WELL WITHIN THE LIMITS OF THE
COMMISSION'S DISCRETION UNDER THE ACT.  PP. 188-189. 

3.  NOTWITHSTANDING APPELLANTS' CONTENTION THAT PENNSYLVANIA ACTUALLY
CONTRACTED TO PURCHASE 50% OF WESTERN'S STOCK FROM A TRUST COMPANY
WHICH HAD FOUR COMMON DIRECTORS WITH PENNSYLVANIA AND THAT SUCH
PURCHASE WOULD VIOLATE SEC. 10 OF THE CLAYTON ACT, THE COMMISSION'S
ACTION IN APPROVING PENNSYLVANIA'S ACQUISITION OF THE STOCK, AFTER
FULLY CONSIDERING ALL FACTORS BEARING THEREON, DID NOT EXCEED THE
STATUTORY LIMITS OF THE COMMISSION'S DISCRETION.  PP. 189-191. 

4.  WHETHER OR NOT SEC. 5(11) OPERATES ONLY IN FUTURO IS IMMATERIAL
IN THIS CASE, SINCE THE EXISTING CONTRACTUAL ARRANGEMENTS THROUGH WHICH
PENNSYLVANIA ASKED AUTHORITY TO ACQUIRE 50% OF WESTERN'S STOCK LOOKED
ENTIRELY TO THE FUTURE.  PP. 191-192. 

5.  NOTWITHSTANDING APPELLANTS' CONTENTION THAT THE COMMISSION
VIOLATED SEC. 8(B) OF THE ADMINISTRATIVE PROCEDURE ACT BY FAILING TO
MAKE FINDINGS WHICH, THEY THINK, WERE COMPELLED BY THE EVIDENCE, THE
RECORD DISCLOSES THAT THE COMMISSION MADE ADEQUATE SUBSIDIARY FINDINGS
UPON ALL MATERIAL ISSUES AND MADE THE ULTIMATE FINDINGS REQUIRED BY
SEC. 5(2), THAT THEY SUPPORT THE COMMISSION'S ORDER AND THAT THEY ARE,
IN TURN, SUPPORTED BY SUBSTANTIAL EVIDENCE.  PP. 192-194. 

6.  THE DISTRICT COURT FAIRLY CONSIDERED AND DECIDED ALL OF THE
ISSUES RAISED BY APPELLANTS, ACCORDED TO THEM A FULL AND FAIR JUDICIAL
REVIEW, AND REACHED A RIGHT RESULT.  P. 194. 

MINNEAPOLIS & ST. LOUIS RAILWAY CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS PRESENT QUESTIONS ARISING OUT OF RIVAL APPLICATIONS BY
SEVERAL RAIL CARRIERS TO THE INTERSTATE COMMERCE COMMISSION UNDER SEC.
5(2) OF THE INTERSTATE COMMERCE ACT (FN1) FOR AUTHORITY TO ACQUIRE
CONTROL OF TOLEDO, PEORIA & WESTERN RAILROAD COMPANY. 

"WESTERN" IS AN INDEPENDENT, SHORT-LINE "BRIDGE CARRIER" (FN2) OF
THROUGH EAST-WEST TRAFFIC BY-PASSING THE CONGESTED CHICAGO GATEWAY. 
ITS LINE IS ABOUT 234 MILES LONG, EXTENDING FROM ITS CONNECTION WITH
THE PENNSYLVANIA RAILROAD COMPANY ("PENNSYLVANIA") AT EFFNER, ON THE
ILLINOIS-INDIANA STATE LINE, WESTWARD, THROUGH PEORIA, TO ITS
CONNECTION WITH THE MAIN LINE OF THE ATCHISON, TOPEKA & SANTA FE
RAILWAY COMPANY ("SANTE FE") AT LOMAX, ILLINOIS, AND THENCE
SOUTHWESTERLY A SHORT DISTANCE TO KEOKUK, IOWA.  ITS HEADQUARTERS,
SHOPS AND YARDS ARE LOCATED IN EAST PEORIA WHERE IT HAS 24 EXECUTIVES
AND WHERE, AND ELSEWHERE ALONG ITS LINE, IT HAS ABOUT 225 OTHER
EMPLOYEES.  IT HAS CONNECTIONS FOR THE INTERCHANGE OF TRAFFIC WITH 16
RAILROADS, THE PRINCIPAL ONES BEING WITH THE PENNSYLVANIA AT EFFNER,
WITH THE SANTA FE AT LOMAX, AND WITH THE NEW YORK, CHICAGO & ST. LOUIS
RAILROAD COMPANY ("NICKEL PLATE"), THE ILLINOIS TERMINAL RAILROAD
COMPANY, THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY
("BURLINGTON") AND THE MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY
("MINNEAPOLIS") AT PEORIA.  ITS INTERCHANGE CONNECTIONS WITH THE OTHER
10 RAILROADS ARE AT 17 OTHER TOWNS ALONG ITS LINE. 

WESTERN HAS OUTSTANDING 90,000 SHARES OF COMMON CAPITAL STOCK, 82% OF
WHICH IS OWNED BY THE TESTAMENTARY TRUSTEES OF THE ESTATE OF GEORGE P.
MCNEAR - WILMINGTON TRUST COMPANY AND GUY GLADSON - AND THE REMAINING
18% IS OWNED BY MEMBERS OF THE MCNEAR FAMILY, A BANK AND THE PRESIDENT
OF WESTERN.   IN 1954, THE TRUSTEES DETERMINED TO SELL THEIR WESTERN
STOCK, AND RIVAL EFFORTS WERE COMMENCED BY MINNEAPOLIS, ON THE ONE
HAND, AND BY THE SANTA FE AND PENNSYLVANIA, ON THE OTHER HAND, TO
PURCHASE IT.  (FOUR OF WILMINGTON TRUST COMPANY'S DIRECTORS WERE ALSO
DIRECTORS OF PENNSYLVANIA.)  THOSE NEGOTIATIONS CULMINATED IN A
CONTRACT BETWEEN THE TRUSTEES AND THE SANTA FE, DATED MAY 26, 1955,
PROVIDING FOR THE SALE BY THE FORMER AND PURCHASE BY THE LATTER OF THE
STOCK AT A PRICE OF $135 PER SHARE, SUBJECT TO THE COMMISSION'S
APPROVAL.  (FN3)  SOON AFTERWARD, LIKE AGREEMENTS WERE MADE BY THE
SANTA FE WITH THE HOLDERS OF THE REMAINING 18% OF THE WESTERN STOCK. 

ON JUNE 28, 1955, THE SANTA FE ENTERED INTO A CONTRACT TO SELL TO THE
PENNSYLVANIA COMPANY, A WHOLLY OWNED SUBSIDIARY OF PENNSYLVANIA, 50% OF
THE OUTSTANDING CAPITAL STOCK OF WESTERN AT $135 PER SHARE, (FN4)
SUBJECT TO APPROVAL OF THE COMMISSION. 

ON JULY 8, 1955, THE SANTA FE AND PENNSYLVANIA COMPANY AND ITS
PARENT, PENNSYLVANIA, APPLIED TO THE COMMISSION UNDER SEC. 5(2) OF THE
ACT (FN5) FOR APPROVAL OF THOSE STOCK PURCHASE AGREEMENTS AND THE
CONSEQUENT JOINT CONTROL OF WESTERN.  THE MINNEAPOLIS INTERVENED AND
OBJECTED TO THE APPLICATION, AS DID ALSO THE STATES OF MINNESOTA AND
SOUTH DAKOTA AND THEIR RESPECTIVE PUBLIC SERVICE REGULATORY
COMMISSIONS. 

THEREAFTER, ON OCTOBER 13, 1955, THE MINNEAPOLIS APPLIED TO THE
COMMISSION, UNDER THE SAME SECTION OF THE ACT, FOR AUTHORITY TO ACQUIRE
SOLE CONTROL OF WESTERN, EXPRESSING ITS WILLINGNESS TO ENTER INTO
CONTRACTS WITH WESTERN'S STOCKHOLDERS TO PURCHASE THEIR STOCK AT THE
SAME PRICE AND ON THE SAME TERMS AS SET FORTH IN THEIR EXISTING
CONTRACTS WITH THE SANTA FE.  THE SANTA FE, THE PENNSYLVANIA COMPANY
AND PENNSYLVANIA INTERVENED IN THE LATTER PROCEEDING AND OBJECTED TO
THE MINNEAPOLIS APPLICATION. 

ON MOTION OF MINNEAPOLIS, THE COMMISSION CONSOLIDATED THE TWO
PROCEEDINGS.  THEREAFTER, SEVEN OTHER RAILROADS HAVING INTERCHANGE
CONNECTIONS WITH WESTERN'S LINE INTERVENED.  TWO OF THEM SOUGHT
AUTHORITY, AT ALL EVENTS, (FN6) AND TWO OTHERS OF THEM SOUGHT
AUTHORITY, UNDER STATED CONDITIONS, (FN7) TO PARTICIPATE, UNDER SEC.
5(2)(D) OF THE ACT, IN THE ACQUISITION OF THE WESTERN STOCK ON AN EQUAL
BASIS WITH THE SUCCESSFUL APPLICANT.  THE STATE OF ILLINOIS, 18 CITIES
OR TOWNS AND SEVEN CHAMBERS OF COMMERCE LOCATED ON OR ALONG WESTERN'S
LINE, TWO LABOR ORGANIZATIONS REPRESENTING WESTERN'S EMPLOYEES, AND A
LARGE NUMBER OF SHIPPERS OVER WESTERN'S LINE, INTERVENED IN SUPPORT OF
THE SANTA FE-PENNSYLVANIA APPLICATION AND IN OPPOSITION TO THE
MINNEAPOLIS APPLICATION. 

AFTER AN EXTENDED CONSOLIDATED HEARING BEFORE HIM, THE COMMISSION'S
EXAMINER ISSUED A PROPOSED REPORT RECOMMENDING APPROVAL OF THE SANTA FE
PENNSYLVANIA APPLICATION AND DISMISSAL OF THE MINNEAPOLIS APPLICATION. 
THEREAFTER, UPON EXCEPTIONS, AND BRIEFS AND ARGUMENTS IN THEIR SUPPORT,
DIVISION 4 OF THE COMMISSION ISSUED ITS REPORT.  IT WAS CONFRONTED, AS
IT SAID, WITH FOUR ALTERNATIVE PROPOSALS, (1) FOR AUTHORIZATION OF
JOINT CONTROL OF WESTERN BY THE SANTA FE AND PENNSYLVANIA, (2) FOR
AUTHORIZATION OF SOLE CONTROL BY THE MINNEAPOLIS, (3) FOR AUTHORIZATION
OF TWO OTHER RAILROADS, AT ALL EVENTS, AND OF TWO MORE RAILROADS, UNDER
STATED CONDITIONS, TO PARTICIPATE IN THE ACQUISITION OF THE WESTERN
STOCK ON AN EQUAL BASIS WITH THE SUCCESSFUL APPLICANT, (FN8) AND (4)
DENIAL OF BOTH APPLICATIONS. 

THE COMMISSION OBSERVED THAT "THESE PROCEEDINGS REPRESENT A NEW AND
MORE COMPLICATED PHASE IN THE ADMINISTRATION OF SECTION 5, SINCE THEY
INVOLVE 2 APPLICATIONS FOR AUTHORITY TO CONTROL THE SAME PROPERTY, AND
PETITIONS BY 4 OTHER CARRIERS FOR INCLUSION IN THE TRANSACTION UNDER
VARYING CIRCUMSTANCES."  IT RECOGNIZED THAT, UNDER SEC. 5(2) OF THE ACT
AND THE NATIONAL TRANSPORTATION POLICY, (FN9) IT WAS REQUIRED TO "WEIGH
WHETHER EACH APPLICATION IS CONSISTENT WITH THE PUBLIC INTEREST, WITH
OR WITHOUT INCLUSION OF OTHER RAILROADS, CONSIDERING NOT ONLY OTHER
INTERVENING PETITIONERS SEEKING SUCH INCLUSION BUT ALSO THE OTHER
APPLICANT AND NONPARTICIPATING RAILROADS AS WELL."  IT THOUGHT THAT THE
BURDEN OF PROOF WAS "MOST HEAVY FOR AN APPLICANT IN A PROCEEDING LIKE
THIS, BECAUSE IT MUST NOT ONLY OVER-BALANCE THE CLAIMS OF THOSE SEEKING
TO SHARE IN THE CONTROL BUT ALSO OF THOSE SEEKING TO EXCLUDE IT FROM
THE TRANSACTION."  IT CONCEIVED IT TO BE ITS DUTY, UNDER THE ACT AND
THE NATIONAL TRANSPORTATION POLICY, TO "ARRIVE AT A STANDARD OF PUBLIC
INTEREST AND DETERMINE WHICH OF THE VARIOUS PLANS OF CONTROL MOST
NEARLY APPROXIMATES IT." 

THE COMMISSION FOUND THAT THE SANTA FE-PENNSYLVANIA PLAN CONTEMPLATES
THAT WESTERN "WILL CONTINUE TO BE OPERATED AS A SEPARATE AND
INDEPENDENT CARRIER WITH RESPONSIBLE MANAGEMENT LOCATED ALONG ITS
LINES"; THAT IT "WILL CONTINUE TO MAINTAIN ITS OWN SOLICITATION FORCES
AND WILL BE ENTIRELY FREE TO SOLICIT TRAFFIC IN SUCH MANNER AS BEST TO
SERVE THE INTERESTS OF THE WESTERN," AND THAT ALL "EXISTING ROUTES AND
CHANNELS OF TRADE VIA THE WESTERN WILL BE MAINTAINED AND KEPT OPEN
WITHOUT DISCRIMINATION BETWEEN CONNECTING LINES OF RAILROAD."  IT
FOUND, ON THE OTHER HAND, THAT THE MINNEAPOLIS PLAN "UNEQUIVOCALLY
CONTEMPLATES THE DISAPPEARANCE OF THE WESTERN AS AN INDEPENDENT AND
NEUTRAL CONNECTION FOR THE OTHER 15 CARRIERS WITH WHICH IT PRESENTLY
WORKS"; THAT "FOR ALL PRACTICAL PURPOSES THE WESTERN WOULD BE
INTEGRATED, CONSOLIDATED, AND MERGED INTO THE MINNEAPOLIS FOR
OWNERSHIP, MANAGEMENT, AND OPERATION"; THAT FEATURES OF THE MINNEAPOLIS
PLAN "WOULD BE EXTREMELY HARMFUL TO OTHER CARRIERS"; THAT WESTERN'S
HEADQUARTERS OFFICE AT PEORIA WOULD BE ELIMINATED, LEAVING ONLY A
TRAINMASTER AND A ROADMASTER AT THAT POINT, AND THAT THE EMPLOYMENT OF
MOST OF WESTERN'S 24 EXECUTIVES AND 225 OTHER EMPLOYEES WOULD BE
SEVERED. 

THE COMMISSION FURTHER FOUND THAT "ONLY THE MINNEAPOLIS AND ITS
SUPPORTING INTERVENERS, THE STATES OF MINNESOTA AND SOUTH DAKOTA,
ADVOCATE THE DISAPPEARANCE OF THE WESTERN AS A SEPARATE AND INDEPENDENT
OPERATING CARRIER," AND THAT ALL OTHER PARTIES TO, AND INTERVENORS IN,
THE PROCEEDINGS "INSIST THAT THE SEPARATE AND INDEPENDENT OPERATION OF
THE WESTERN UNDER ITS PRESENT LOCAL MANAGEMENT IS A PUBLIC NECESSITY." 
IT THEN FOUND THAT THE "PUBLIC INTEREST DEMANDS THAT THE PRESENT
POLICIES OF THE WESTERN IN ALL RESPECTS BE CONTINUED."  IT THEREUPON
MADE THE ULTIMATE FINDING, REQUIRED BY SEC. 5(2)(B) OF THE ACT, THAT
THE ACQUISITION AND PLAN OF OPERATION BY THE SANTA FE AND PENNSYLVANIA,
SUBJECT TO STATED CONDITIONS, WAS "WITHIN THE SCOPE OF SECTION 5(2) OF
THE INTERSTATE COMMERCE ACT, AS AMENDED; THAT THE TERMS AND CONDITIONS
PROPOSED BY THEM ARE JUST AND REASONABLE, AND THAT THE TRANSACTION WILL
BE CONSISTENT WITH THE PUBLIC INTEREST."  THE COMMISSION THEN ENTERED
ITS ORDER APPROVING THE SANTA FE-PENNSYLVANIA APPLICATION, DISMISSING
THE MINNEAPOLIS APPLICATION, AND DENYING THE PETITIONS OF THE SEVERAL
INTERVENING RAILROADS WHICH SOUGHT TO PARTICIPATE IN THE ACQUISITION OF
THE WESTERN STOCK.  295 I.C.C. 523. 

THEREAFTER, MINNEAPOLIS PETITIONED THE WHOLE COMMISSION FOR A
RECONSIDERATION, AND ALTERNATIVELY REQUESTED THAT, IF THE APPROVAL OF
THE SANTA FE-PENNSYLVANIA APPLICATION BE PERMITTED TO STAND, IT BE
AUTHORIZED TO PARTICIPATE EQUALLY WITH THOSE RAILROADS IN THE PURCHASE
OF WESTERN'S STOCK ON THE SAME TERMS.  THAT PETITION WAS DENIED. 

MINNEAPOLIS THEN TIMELY FILED A COMPLAINT IN THE DISTRICT COURT FOR
MINNESOTA AGAINST THE UNITED STATES AND THE INTERSTATE COMMERCE
COMMISSION TO VACATE THE COMMISSION'S ORDER.  THE STATES OF MINNESOTA
AND SOUTH DAKOTA AND THEIR RESPECTIVE REGULATORY COMMISSIONS, BEING
INTERESTED IN STRENGTHENING THE MINNEAPOLIS, WHICH OPERATES IN THOSE
STATES, INTERVENED IN SUPPORT OF THE COMPLAINT.  THE DEFENDANTS
ANSWERED, ASSERTING THE FULL LEGALITY OF THE COMMISSION'S ORDER.  THE
SANTA FE, THE PENNSYLVANIA, THE PENNSYLVANIA COMPANY, THE STATE OF
ILLINOIS, THE 18 CITIES AND SEVEN CHAMBERS OF COMMERCE AND THE NUMEROUS
SHIPPERS WHO WERE INTERVENORS BEFORE THE COMMISSION, INTERVENED IN
OPPOSITION TO THE COMPLAINT.  THE NICKEL PLATE INTERVENED, COMPLAINING
THAT THE COMMISSION HAD IMPROPERLY DENIED ITS REQUEST TO PARTICIPATE IN
THE PURCHASE OF THE WESTERN STOCK. 

A THREE-JUDGE COURT WAS CONVENED AND, AFTER HEARING, RENDERED ITS
OPINION AND JUDGMENT SUSTAINING THE COMMISSION'S ORDER.  165 F. SUPP.
893.  ON SEPARATE APPEALS BY THE MINNEAPOLIS, THE STATE OF MINNESOTA
AND ITS REGULATORY COMMISSION, AND THE STATE OF SOUTH DAKOTA AND ITS
REGULATORY COMMISSION, THE CASE WAS BROUGHT HERE AND WE NOTED PROBABLE
JURISDICTION.  359 U.S. 933.  ALL OF THOSE WHO WERE DEFENDANTS AND
INTERVENORS IN OPPOSITION TO THE COMPLAINT IN THE DISTRICT COURT,
EXCEPT THE NICKEL PLATE, ARE APPELLEES IN THIS COURT. 

MINNEAPOLIS, SUPPORTED BY THE STATES OF MINNESOTA AND SOUTH DAKOTA,
CONTENDS, FIRST, THAT THE COMMISSION IMPROPERLY ADOPTED AT THE OUTSET
OF ITS REPORT THE STANDARD OF "SEPARATE AND INDEPENDENT MANAGEMENT" OF
WESTERN AS THE CRITERION GOVERNING THE COMPARATIVE MERITS OF THE RIVAL
PLANS, WHICH WAS ANTITHETIC TO ITS APPLICATION, AND THEREBY DEPRIVED IT
OF "FAIR COMPARATIVE CONSIDERATION," AND THAT THE DISTRICT COURT ERRED
IN APPROVING THE COMMISSION'S ACTION. 

THE RECORD DOES NOT SUPPORT THAT CONTENTION.  RATHER, IT SHOWS THAT
THE COMMISSION'S GOVERNING STANDARD WAS THE "PUBLIC INTEREST," ALTHOUGH
IT ULTIMATELY DID FIND THAT THE PUBLIC INTEREST WOULD BE BEST SERVED BY
WESTERN'S CONTINUED OPERATION AS A "SEPARATE AND INDEPENDENT CARRIER." 
WE BELIEVE THAT THE RECITED FINDINGS SHOW THAT THE COMMISSION CAREFULLY
"WEIGHED" AND CONSIDERED "EACH APPLICATION" IN ITS LABORS TO DETERMINE
WHICH, IF EITHER, OF THEM WAS "CONSISTENT WITH THE PUBLIC INTEREST." 
ITS SUBSIDIARY FINDINGS (A) THAT THE MINNEAPOLIS PLAN "UNEQUIVOCALLY
CONTEMPLATES THE DISAPPEARANCE OF THE WESTERN AS AN INDEPENDENT AND
NEUTRAL CONNECTION FOR THE OTHER 15 CARRIERS WITH WHICH IT PRESENTLY
WORKS," (B) THAT CERTAIN FEATURES OF THE MINNEAPOLIS PLAN "WOULD BE
EXTREMELY HARMFUL TO OTHER CARRIERS," (C) THAT THE MINNEAPOLIS PLAN
CONTEMPLATES THE ELIMINATION OF WESTERN'S OFFICE AND THE SEPARATION OF
ITS EMPLOYEES, AND (D) THAT NUMEROUS WITNESSES INSISTED "THAT THE
SEPARATE AND INDEPENDENT OPERATION OF THE WESTERN UNDER ITS PRESENT
LOCAL MANAGEMENT IS A PUBLIC NECESSITY," FULLY SUPPORT ITS CONCLUSIONAL
FINDING THAT THE "PUBLIC INTEREST DEMANDS THAT THE PRESENT POLICIES OF
THE WESTERN IN ALL RESPECTS BE CONTINUED."  THAT FINDING, THOUGH
ANTITHETIC TO MINNEAPOLIS' APPLICATION, DID NOT DEPRIVE IT OF "FAIR
COMPARATIVE CONSIDERATION," BUT, ON THE CONTRARY, IT SEEMS TO US, WAS
MADE BY THE COMMISSION AFTER FULL AND FAIR CONSIDERATION, AND THE
DISTRICT COURT DID NOT ERR IN SO HOLDING. 

APPELLANTS' PRINCIPAL CONTENTION APPEARS TO BE THAT ACQUISITION OF
CONTROL OF WESTERN BY SANTE FE AND PENNSYLVANIA WILL CREATE A
COMBINATION IN RESTRAINT OF COMMERCE IN VIOLATION OF SEC. 1 OF THE
SHERMAN ACT (FN10) AND WILL LESSEN COMPETITION OR TEND TO CREATE A
MONOPOLY IN VIOLATION OF SEC. 7 OF THE CLAYTON ACT, (FN11) AND THAT THE
COMMISSION'S APPROVAL OF THEIR APPLICATION WAS AN ABUSE OF POWER.    ON
THEIR FACE THESE CONTENTIONS WOULD SEEM TO RUN IN THE TEETH OF THE
LANGUAGE AND PURPOSE OF SEC. 5(11) OF THE INTERSTATE COMMERCE ACT. 
THAT SECTION, IN SUBSTANCE, PROVIDES THAT "THE AUTHORITY CONFERRED BY
THIS SECTION SHALL BE EXCLUSIVE AND PLENARY, AND ANY CARRIER OR
CORPORATION PARTICIPATING IN  ...  ANY TRANSACTION APPROVED BY THE
COMMISSION THEREUNDER, SHALL HAVE FULL POWER ...  TO CARRY SUCH
TRANSACTION INTO EFFECT AND TO OWN AND OPERATE ANY PROPERTIES AND
EXERCISE ANY CONTROL OR FRANCHISES ACQUIRED THROUGH SAID TRANSACTION
...  AND ANY CARRIERS  ...  PARTICIPATING IN A TRANSACTION APPROVED OR
AUTHORIZED UNDER THE PROVISIONS OF THIS SECTION SHALL BE AND THEY ARE
HEREBY RELIEVED FROM THE OPERATIONS OF THE ANTITRUST LAWS AND OF ALL
OTHER RESTRAINTS, LIMITATIONS, AND PROHIBITIONS OF LAW  ...  INSOFAR AS
MAY BE NECESSARY TO ENABLE IT TO CARRY INTO EFFECT THE TRANSACTION SO
APPROVED OR PROVIDED FOR IN ACCORDANCE WITH THE TERMS AND CONDITIONS,
IF ANY, IMPOSED BY THE COMMISSION, AND TO HOLD, MAINTAIN, AND OPERATE
ANY PROPERTIES AND EXERCISE ANY CONTROL OR FRANCHISES ACQUIRED THROUGH
SUCH TRANSACTION."  24 STAT. 380, AS AMENDED, 54 STAT. 908, 49 U.S.C.
SEC. 5(11). 

CONGRESSIONAL POLICY THAN SEC. 1 OF THE SHERMAN ACT AND SEC. 7 OF THE
CLAYTON ACT, AND IN TERMS RELIEVES THE ACQUIRING CARRIER, UPON APPROVAL
BY THE COMMISSION OF THE ACQUISITION, "FROM THE OPERATION OF THE
ANTITRUST LAWS  ...  ."  ALTHOUGH SEC. 5(11) DOES NOT AUTHORIZE THE
COMMISSION TO "IGNORE" THE ANTITRUST LAWS, MCLEAN TRUCKING CO. V.
UNITED STATES, 321 U.S. 67, 80, THERE CAN BE "LITTLE DOUBT THAT THE
COMMISSION IS NOT TO MEASURE PROPOSALS FOR ACQUISITIONS BY THE
STANDARDS OF THE ANTITRUST LAWS."  321 U.S., AT 85-86.  THE PROBLEM IS
ONE OF ACCOMMODATION OF SEC. 5(2) AND THE ANTITRUST LEGISLATION.   THE
COMMISSION REMAINS OBLIGATED TO "ESTIMATE THE SCOPE AND APPRAISE THE
EFFECTS OF THE CURTAILMENT OF COMPETITION WHICH WILL RESULT FROM THE
PROPOSED ACQUISITION AND CONSIDER THEM ALONG WITH THE ADVANTAGES OF
IMPROVED SERVICE AND OTHER MATTERS IN THE PUBLIC INTEREST TO DETERMINE
WHETHER THE ACQUISITION WILL ASSIST IN EFFECTUATING THE OVER-ALL
TRANSPORTATION POLICY."  321 U.S., AT 87. 

EVEN THOUGH SUCH ACQUISITIONS MIGHT OTHERWISE VIOLATE THE ANTITRUST
LAWS, CONGRESS HAS AUTHORIZED THE COMMISSION TO APPROVE THEM, IF IT
FINDS THEY ARE IN THE PUBLIC INTEREST, "BECAUSE IT RECOGNIZED THAT IN
SOME CIRCUMSTANCES THEY WERE APPROPRIATE FOR EFFECTUATION OF THE
NATIONAL TRANSPORTATION POLICY.  IT WAS INFORMED THAT THIS POLICY WOULD
BE FURTHERED BY 'ENCOURAGING THE ORGANIZATION OF STRONGER UNITS' IN THE
...  INDUSTRY.  AND IN AUTHORIZING THOSE ACQUISITIONS IT DID NOT
IMPORT THE GENERAL POLICIES OF THE ANTI-TRUST LAWS AS A MEASURE OF
THEIR PERMISSIBILITY.  IT IN TERMS RELIEVED PARTICIPANTS IN APPROPRIATE
ACQUISITIONS FROM THE REQUIREMENTS OF THOSE LAWS.  SEC. 5(11)."  321
U.S., AT 85.  IT MUST BE PRESUMED THAT, IN ENACTING THIS LEGISLATION,
CONGRESS TOOK ACCOUNT OF THE FACT THAT RAILROADS ARE SUBJECT TO STRICT
REGULATION AND SUPERVISION.  "AGAINST THIS BACKGROUND, NO OTHER
INFERENCE IS POSSIBLE BUT THAT, AS A FACTOR IN DETERMINING THE
PROPRIETY OF RAILROAD ACQUISITIONS THE PRESERVATION OF COMPETITION
AMONG CARRIERS, ALTHOUGH STILL A VALUE, IS SIGNIFICANT CHIEFLY AS IT
AIDS IN THE ATTAINMENT OF THE OBJECTIVES OF THE NATIONAL TRANSPORTATION
POLICY."  321 U.S., AT 85-86. 

AS RESPECTS RAILROAD ACQUISITIONS, THE COMMISSION IS NOT SO BOUND BY
THE ANTITRUST LAWS THAT IT MUST PERMIT THEM TO OVERBEAR WHAT IT FINDS
TO BE IN "THE PUBLIC INTEREST."  A CONTRARY VIEW WOULD, IN EFFECT,
PERMIT THE COMMISSION TO AUTHORIZE ONLY THOSE ACQUISITIONS WHICH WOULD
NOT OFFEND THOSE LAWS.  "AS HAS BEEN SAID, THIS WOULD RENDER
MEANINGLESS THE EXEMPTION RELIEVING THE PARTICIPANTS IN A PROPERLY
APPROVED ACQUISITION OF THE REQUIREMENTS OF THOSE LAWS  ...  ."  321
U.S., AT 86.  RESOLUTION OF THE CONFLICTING CONSIDERATIONS "IS A
COMPLEX TASK WHICH REQUIRES EXTENSIVE FACILITIES, EXPERT JUDGMENT AND
CONSIDERABLE KNOWLEDGE OF THE TRANSPORTATION INDUSTRY.  CONGRESS LEFT
THAT TASK TO THE COMMISSION 'TO THE END THAT THE WISDOM AND EXPERIENCE
OF THAT COMMISSION MAY BE USED NOT ONLY IN CONNECTION WITH THIS FORM OF
TRANSPORTATION, BUT IN ITS COORDINATION OF ALL OTHER FORMS.'  79 CONG.
REC.  12207.  'THE WISDOM AND EXPERIENCE OF THAT COMMISSION,' NOT OF
THE COURTS, MUST DETERMINE WHETHER THE PROPOSED ACQUISITION IS
'CONSISTENT WITH THE PUBLIC INTEREST.'  CF. INTERSTATE COMMERCE
COMMISSION V. ILLINOIS CENTRAL R. CO., 215 U.S. 452; PENNSYLVANIA CO.
V. UNITED STATES, 236 U.S. 351; UNITED STATES V. CHICAGO HEIGHTS
TRUCKING CO., 310 U.S. 344; PURCELL V. UNITED STATES, 315 U.S. 381." 
321 U.S., AT 87-88. 

HERE, THE COMMISSION GAVE EXTENSIVE CONSIDERATION TO THE ANTI
COMPETITIVE CONTENTIONS ADVANCED BY APPELLANTS, DEVOTING MORE THAN FIVE
PAGES OF ITS REPORT TO THAT MATTER.  IT FOUND THAT "ALL THE CARRIERS
ENDEAVORING TO PARTICIPATE IN ITS CONTROL ARE IN COMPETITION WITH
WESTERN"; THAT THE "IMPORTANT THING IS NOT WHETHER THERE IS POSSIBILITY
OF COMPETITION, BUT WHETHER THERE IS PROBABILITY OF EXISTING OR
POTENTIAL COMPETITION BEING DIMINISHED OR STRANGLED BY THE WESTERN
UNDER THE CONTROL OF THE SANTA FE AND THE PENNSYLVANIA."  AFTER AN
EXTENDED ANALYSIS OF THE COMPLEX FACTS AND CONFLICTING EVIDENCE, THE
COMMISSION FOUND THAT CONTROL OF WESTERN BY THE SANTA FE AND
PENNSYLVANIA WOULD NOT RESULT IN ANY SIGNIFICANT LESSENING OF
COMPETITION.  IT POINTED TO THE FACT THAT ALTHOUGH THE SANTA FE'S "LONG
HAUL" IS TO CHICAGO AND THE PENNSYLVANIA'S "NEXT TO LONGEST HAUL" IS
ALSO TO CHICAGO (ITS LONGEST HAUL BEING TO ST. LOUIS) THE SANTA FE HAS
AGREED, AND IS BOUND, "TO PLACE LOMAX ON A PARITY WITH CHICAGO FROM A
SOLICITATION STANDPOINT, AND  ...  THE PENNSYLVANIA WILL RECOGNIZE
EFFNER AS ONE OF ITS PRINCIPAL INTERCHANGES ALONG WITH CHICAGO AND ST.
LOUIS"; THAT "THERE MAY BE SOME DIVERSION OF TRAFFIC, BUT SUCH
DIVERSION WOULD NOT JEOPARDIZE THE MAINTENANCE OF ADEQUATE
TRANSPORTATION SERVICE BY THE OBJECTING INTERVENING CARRIERS." 

THE COMMISSION ALSO POINTED TO THE FACT THAT WESTERN HAD BEEN IN A
PROLONGED RECEIVERSHIP UNTIL 1927 WHEN GEORGE P. MCNEAR ACQUIRED ITS
STOCK AT A RECEIVER'S SALE, TOLEDO, P.&W.R. CO. ACQUISITION, 124 I.C.C.
181.  IT FURTHER FOUND THAT WESTERN'S MODERN EXISTENCE BEGAN AT THAT
TIME AND, UNDER THE GUIDANCE OF MCNEAR, WAS BUILT INTO A FINE RAILROAD;
THAT SINCE MCNEAR'S DEATH, IN 1947, THE PRESENT MANAGEMENT HAS
CONTINUED, WITH MUCH SUCCESS, THE POLICIES HE ESTABLISHED.  THOSE
POLICIES, THE COMMISSION FOUND, WERE, AND ARE "TO MAINTAIN STRICT
NEUTRALITY BETWEEN ALL CONNECTIONS, AND TO PARTICIPATE IN ANY HAUL OF
TRAFFIC NO MATTER HOW SLIGHT (AS A BRIDGE) CARRIER THROUGH PEORIA AS AN
ALTERNATIVE ROUTE, BYPASSING THE CONGESTED TERMINALS OF CHICAGO AND ST.
LOUIS," AND THAT THOSE POLICIES ARE TO BE CONTINUED UNDER THE SANTA FE
PENNSYLVANIA PLAN. 

WE THINK IT IS CLEAR FROM THIS SUMMARY OF ITS ANALYSIS AND FINDINGS
THAT THE COMMISSION FULLY ESTIMATED THE SCOPE AND APPRAISED THE EFFECTS
OF ANY CURTAILMENT OF COMPETITION WHICH MIGHT RESULT FROM THE
ACQUISITION OF WESTERN BY THE SANTA FE AND PENNSYLVANIA, AND, AFTER
HAVING DONE SO, CONCLUDED THAT THEIR ACQUISITION AND PLAN OF OPERATION
OF WESTERN WOULD NOT RESULT IN ANY SIGNIFICANT LESSENING OF
COMPETITION.  CONGRESS HAS LEFT THE TASK OF MAKING THAT DETERMINATION
TO THE WISDOM AND EXPERIENCE OF THE COMMISSION.  THE DETERMINATION IT
HAS MADE RESTS UPON ADEQUATE FINDINGS WHICH ARE, IN TURN, SUPPORTED BY
SUBSTANTIAL EVIDENCE AND IS WELL WITHIN THE LIMITS OF ITS DISCRETION
UNDER THE ACT. 

APPELLANTS ARGUE THAT THE PENNSYLVANIA, IN ACTUALITY, CONTRACTED TO
PURCHASE 50% OF THE WESTERN STOCK FROM WILMINGTON TRUST COMPANY, A CO
TRUSTEE OF THE MCNEAR TRUST, AND THAT, SINCE FOUR PERSONS WERE
DIRECTORS OF BOTH COMPANIES, THAT PROPOSED STOCK PURCHASE VIOLATES SEC.
10 OF THE CLAYTON ACT; THAT THE COMMISSION WAS WITHOUT POWER TO APPROVE
IT; THAT, IN ANY EVENT, ITS ACTION IN "CONDONING" IT WAS AN ABUSE OF
POWER; AND THAT THE DISTRICT COURT, FOR THOSE REASONS ALSO, ERRED IN
UPHOLDING THE COMMISSION'S ORDER. 

THE COMMISSION FOUND THAT THE SANTA FE IN ENTERING INTO THE CONTRACT
OF MAY 26, 1955, WITH THE TRUSTEES OF THE MCNEAR TRUST WAS "ACTING ON
BEHALF OF THAT CARRIER ALONE."  BUT EVEN IF WE ASSUME, FOR PRESENT
PURPOSES, THAT IT WAS ACTING AS WELL FOR THE PENNSYLVANIA, THE RESULT
MUST BE THE SAME.  SECTION 10 OF THE CLAYTON ACT PROHIBITS A COMMON
CARRIER ENGAGED IN COMMERCE FROM HAVING "ANY DEALINGS IN SECURITIES" OF
MORE THAN $50,000, IN THE AGGREGATE, IN ANY ONE YEAR, "WITH ANOTHER
CORPORATION,  ...  WHEN THE SAID COMMON CARRIER SHALL HAVE UPON ITS
BOARD OF DIRECTORS  ...  ANY PERSON WHO IS AT THE SAME TIME A DIRECTOR
OF SUCH OTHER CORPORATION  ...  ,  EXCEPT SUCH PURCHASES AS SHALL BE
MADE  ...  BY COMPETITIVE BIDDING UNDER REGULATIONS TO BE PRESCRIBED BY
THE COMMISSION."   38 STAT. 734, 15 U.S.C.  SEC. 20. 

AND MUCH OF WHAT WE HAVE JUST SAID RELATIVE TO THE PROBLEM OF
ACCOMMODATION OF SEC. 5(2) OF THE INTERSTATE COMMERCE ACT AND THE
ANTITRUST LAWS IS EQUALLY APPLICABLE TO THIS CONTENTION.  THE EVIDENT
PURPOSE OF SEC. 10 OF THE CLAYTON ACT WAS TO PROHIBIT A CORPORATION
FROM ABUSING A CARRIER BY PALMING OFF UPON IT SECURITIES, SUPPLIES AND
OTHER ARTICLES WITHOUT COMPETITIVE BIDDING AND AT EXCESSIVE PRICES
THROUGH OVERREACHING BY, OR OTHER MISFEASANCE OF, COMMON DIRECTORS, TO
THE FINANCIAL INJURY OF THE CARRIER AND THE CONSEQUENT IMPAIRMENT OF
ITS ABILITY TO SERVE THE PUBLIC INTEREST.  (FN13)  BUT, EVEN IF THIS
PURCHASE OF SECURITIES MIGHT, UNDER OTHER CIRCUMSTANCES, VIOLATE SEC.
10 OF THE CLAYTON ACT, CONGRESS, BY SEC. 5(11) OF THE INTERSTATE
COMMERCE ACT, HAS AUTHORIZED THE COMMISSION TO APPROVE IT IF IT FINDS
THAT SO DOING IS IN THE PUBLIC INTEREST.  AND CONGRESS HAS EXPRESSLY
SAID THAT, UPON SUCH APPROVAL, THE CARRIER SHALL BE RELIEVED "FROM THE
OPERATION OF THE ANTI-TRUST LAWS  ... ."  A CONTRARY VIEW WOULD, IN
EFFECT, PERMIT THE COMMISSION TO AUTHORIZE ONLY THOSE STOCK PURCHASES
WHICH WOULD NOT, IN THE ABSENCE OF SEC. 5(11), OFFEND THE ANTITRUST
LAWS.  "AS HAS BEEN SAID, THIS WOULD RENDER MEANINGLESS THE EXEMPTION
RELIEVING THE PARTICIPANTS IN A PROPERLY APPROVED ACQUISITION OF THE
REQUIREMENTS OF THOSE LAWS  ...  ."  MCLEAN TRUCKING CO. V. UNITED
STATES, SUPRA, AT 86. 

HERE, THE COMMISSION FULLY CONSIDERED THE CONTRACTS UNDER WHICH THE
PENNSYLVANIA PROPOSES TO ACQUIRE A 50% INTEREST IN THE WESTERN STOCK
AND ALL OTHER FACTORS BEARING ON THAT MATTER AND, AFTER DOING SO,
APPROVED THEM.  THAT ACTION BY THE COMMISSION DID NOT EXCEED THE
STATUTORY LIMITS WITHIN WHICH CONGRESS HAS CONFINED ITS DISCRETION. 

MINNEAPOLIS CONTENDS THAT SEC. 5(11) OPERATES ONLY IN FUTURO AND
CONFERS "NO AUTHORITY TO PURGE THE TAINT OF A TRANSACTION ILLEGAL AT
THE TIME IT WAS BROUGHT TO THE COMMISSION."  WHETHER THERE IS MERIT IN
THAT CONTENTION, AS A LEGAL ABSTRACTION, WE NEED NOT DECIDE, FOR HERE
THE EXISTING CONTRACTUAL ARRANGEMENTS THROUGH WHICH PENNSYLVANIA ASKS
AUTHORITY TO ACQUIRE 50% OF THE WESTERN STOCK LOOK ENTIRELY TO THE
FUTURE.  NEITHER THE STOCK SALE AND PURCHASE CONTRACT BETWEEN THE
TRUSTEES AND THE SANTA FE NOR THE ONE BETWEEN THE SANTA FE AND THE
PENNSYLVANIA COMPANY IS A CONSUMMATED TRANSACTION, BUT EACH IS
EXPRESSLY SUBJECT TO, AND WILL BECOME EFFECTIVE ONLY UPON, APPROVAL BY
THE COMMISSION.  APART FROM CRIMINAL PROSECUTIONS, WITH WHICH WE ARE
NOT HERE CONCERNED, IT SEEMS PLAIN THAT APPROVAL OF AN ACQUISITION BY
THE COMMISSION OPERATES UNDER SEC. 5(11), AS THAT SECTION SAYS, TO
RELIEVE THE ACQUIRING CARRIER "FROM THE OPERATION OF THE ANTITRUST LAWS
...  ." 

APPELLANTS NEXT CONTEND THAT THE COMMISSION VIOLATED SEC. 8(B) OF THE
ADMINISTRATIVE PROCEDURE ACT BY FAILING TO MAKE FINDINGS WHICH, THEY
THINK, WERE COMPELLED BY THE EVIDENCE. 

THERE CAN BE NO DOUBT THAT THE ADMINISTRATIVE PROCEDURE ACT APPLIES
TO PROCEEDINGS BEFORE THE COMMISSION, RISS & CO. V. UNITED STATES, 341
U.S. 907, AND SEE CHICAGO & EASTERN ILLINOIS R. CO. V. UNITED STATES,
344 U.S. 917. 

THE LAST SENTENCE OF SEC. 8(B) PROVIDES: 

"ALL ADMINISTRATIVE DECISIONS  ...  SHALL BECOME A PART OF THE RECORD
AND INCLUDE A STATEMENT OF (1) FINDINGS AND CONCLUSIONS, AS WELL AS THE
REASONS OR BASIS THEREFOR, UPON ALL THE MATERIAL ISSUES OF FACT, LAW,
OR DISCRETION PRESENTED ON THE RECORD; AND (2) THE APPROPRIATE RULE,
ORDER, SANCTION, RELIEF, OR DENIAL THEREOF."  (FN14) 

UPON THE BASIS OF THAT LANGUAGE, APPELLANTS ARGUE THAT THE COMMISSION
SHOULD HAVE FOUND THAT THE PRICE WHICH THE SANTA FE AGREED TO PAY FOR
THE WESTERN STOCK OF $135 PER SHARE WAS EXCESSIVE.  THOUGH THE
COMMISSION MADE NO EXPRESS FINDING UPON THAT MATTER IT DID DISCUSS IT,
POINTING OUT THAT THE CERTIFIED VALUE OF WESTERN'S PROPERTIES FOR
RATEMAKING PURPOSES WAS MORE THAN $13,500,000; THAT IT HAS NO
OUTSTANDING PREFERRED STOCK AND IS RELATIVELY FREE OF DEBT; THAT IT HAS
A FINE EARNING RECORD; THAT THE TRANSACTION WAS AT ARM'S LENGTH; THAT
MINNEAPOLIS HAD OFFERED $133 PER SHARE FOR THE STOCK WITHIN A FEW DAYS
OF THE TIME WHEN THE SANTA FE CONTRACTED FOR ITS PURCHASE AT $135 PER
SHARE; AND THAT THE MINNEAPOLIS SOUGHT AUTHORITY IN THIS PROCEEDING TO
ACQUIRE THE STOCK AT THE SAME PRICE.  THE COMMISSION CONCLUDED THAT IF
$135 PER SHARE WAS A FAIR PRICE FOR THE ONE IT WAS ALSO FOR THE OTHER. 

UPON THE SAME BASIS, APPELLANTS ALSO ARGUE THAT THE COMMISSION SHOULD
HAVE FOUND THAT THE MINNEAPOLIS APPLICATION WAS IN THE PUBLIC INTEREST
IN THAT ITS ACQUISITION OF WESTERN WOULD GREATLY STRENGTHEN BOTH
MINNEAPOLIS AND WESTERN BY ELIMINATING MANY DUPLICATING FACILITIES AND
BY REDUCING OPERATING EXPENSES BY MORE THAN $1,770,000 ANNUALLY.  THE
COMMISSION DID NOT MAKE A SPECIFIC FINDING UPON THAT MATTER, BUT IT DID
GIVE CONSIDERATION TO IT AND FOUND THAT MOST OF THAT SAVING - MORE THAN
$1,300,000 ANNUALLY - WOULD BE AT THE EXPENSE OF WESTERN'S EMPLOYEES -
A MATTER WHICH, BECAUSE OF THE EXPRESS COMMAND OF CLAUSE 4 OF SEC.
5(2)(C) OF THE INTERSTATE COMMERCE ACT (SEE NOTE 1), IT EVIDENTLY
THOUGHT WAS NOT CONSISTENT WITH THE PUBLIC INTEREST.  APPELLANTS
FURTHER ARGUE THAT THE COMMISSION SHOULD HAVE FOUND THAT THE
MINNEAPOLIS PLAN AFFORDED ADEQUATE PROTECTION TO WESTERN'S EMPLOYEES BY
PROVIDING FOR THEIR ABSORPTION INTO THE MINNEAPOLIS AS ATTRITION AMONG
ITS OWN EMPLOYEES PERMITTED.  AGAIN, ALTHOUGH THE COMMISSION MADE NO
SPECIFIC FINDING UPON THAT CONTENTION IT DID CONSIDER AND DISCUSS IT,
AND WE THINK THE LAW REQUIRED NO MORE.    APPELLANTS CHALLENGE THE
COMMISSION'S FAILURE TO MAKE A NUMBER OF OTHER SUBSIDIARY FINDINGS, ALL
OF WHICH HAVE BEEN CONSIDERED, BUT WE FIND THAT THEY RELATE TO
CONTENTIONS THAT ARE SO COLLATERAL OR IMMATERIAL THAT THE LAW DID NOT
REQUIRE SPECIFIC FINDINGS UPON THEM.  BY THE EXPRESS TERMS OF SEC.
8(B), THE COMMISSION IS NOT REQUIRED TO MAKE SUBORDINATE FINDINGS ON
EVERY COLLATERAL CONTENTION ADVANCED, BUT ONLY UPON THOSE ISSUES OF
FACT, LAW, OR DISCRETION WHICH ARE "MATERIAL."  FROM A THOROUGH
EXAMINATION OF THE RECORD, WE ARE PERSUADED THAT THE COMMISSION HAS
MADE ADEQUATE SUBSIDIARY FINDINGS UPON ALL MATERIAL ISSUES AND HAS MADE
THE ULTIMATE FINDINGS REQUIRED BY SEC. 5(2), THAT THEY SUPPORT THE
COMMISSION'S ORDER, AND ARE, IN TURN, SUPPORTED BY SUBSTANTIAL
EVIDENCE. 

FINALLY, APPELLANTS CONTEND THAT THE DISTRICT COURT, BECAUSE OF
INADEQUATE SUBSIDIARY FINDINGS BY THE COMMISSION, WAS UNABLE TO, OR AT
LEAST DID NOT, AFFORD THEM A PROPER JUDICIAL REVIEW, AND MERELY "RUBBER
STAMPED" THE COMMISSION'S ORDER.  WHETHER OR NOT WE APPROVE ALL OF THE
REASONS AND LEGAL CONCLUSIONS OF THE DISTRICT COURT, IT IS CLEAR THAT
IT FAIRLY CONSIDERED AND DECIDED ALL OF THE ISSUES RAISED BY
APPELLANTS, ACCORDED TO THEM A FULL AND FAIR JUDICIAL REVIEW, AND
REACHED A RIGHT RESULT.  ACCORDINGLY THE JUDGMENT IS AFFIRMED. 

FN1  SECTION 5(2) OF THE INTERSTATE COMMERCE ACT (24 STAT. 380, AS
AMENDED, 54 STAT.  905, 49 U.S.C. SEC. 5(2)) PROVIDES, IN PERTINENT
PART, THAT: 

"(A)  IT SHALL BE LAWFUL, WITH THE APPROVAL AND AUTHORIZATION OF THE
COMMISSION, AS PROVIDED IN SUBDIVISION (B) OF THIS PARAGRAPH: 

"(I)  FOR  ...  TWO OR MORE CARRIERS JOINTLY, TO ACQUIRE CONTROL OF
ANOTHER THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE  ...  . 

     *         *        *         *         * 

"(B)  WHENEVER A TRANSACTION IS PROPOSED UNDER SUBDIVISION (A) OF
THIS PARAGRAPH, THE CARRIER  ...  SEEKING AUTHORITY THEREFOR SHALL
PRESENT AN APPLICATION TO THE COMMISSION, AND THEREUPON THE COMMISSION
SHALL NOTIFY  ...  DESIGNATED PARTIES, AND SHALL AFFORD REASONABLE
OPPORTUNITY FOR INTERESTED PARTIES TO BE HEARD.  IF THE COMMISSION
SHALL CONSIDER IT NECESSARY TO ORDER TO DETERMINE WHETHER THE FINDINGS
SPECIFIED BELOW MAY PROPERLY BE MADE, IT SHALL SET SAID APPLICATION FOR
PUBLIC HEARING; AND A PUBLIC HEARING SHALL BE HELD IN ALL CASES WHERE
CARRIERS BY RAILROAD ARE INVOLVED UNLESS THE COMMISSION DETERMINES THAT
A PUBLIC HEARING IS NOT NECESSARY IN THE PUBLIC INTEREST.  IF THE
COMMISSION FINDS THAT, SUBJECT TO SUCH TERMS AND CONDITIONS AND SUCH
MODIFICATIONS AS IT SHALL FIND TO BE JUST AND REASONABLE, THE PROPOSED
TRANSACTION IS WITHIN THE SCOPE OF SUBDIVISION (A) OF THIS PARAGRAPH
AND WILL BE CONSISTENT WITH THE PUBLIC INTEREST, IT SHALL ENTER AN
ORDER APPROVING AND AUTHORIZING SUCH TRANSACTION, UPON THE TERMS AND
CONDITIONS, AND WITH THE MODIFICATIONS, SO FOUND TO BE JUST AND
REASONABLE  ...  . 

"(C)  IN PASSING UPON ANY PROPOSED TRANSACTION UNDER THE PROVISIONS
OF THIS PARAGRAPH, THE COMMISSION SHALL GIVE WEIGHT TO THE FOLLOWING
CONSIDERATIONS, AMONG OTHERS:  (1) THE EFFECT OF THE PROPOSED
TRANSACTION UPON ADEQUATE TRANSPORTATION SERVICE TO THE PUBLIC; (2) THE
EFFECT UPON THE PUBLIC INTEREST OF THE INCLUSION, OR FAILURE TO
INCLUDE, OTHER RAILROADS IN THE TERRITORY INVOLVED IN THE PROPOSED
TRANSACTION; (3) THE TOTAL FIXED CHARGES RESULTING FROM THE PROPOSED
TRANSACTION; AND (4) THE INTEREST OF THE CARRIER EMPLOYEES AFFECTED. 

"(D)  THE COMMISSION SHALL HAVE AUTHORITY IN THE CASE OF A PROPOSED
TRANSACTION UNDER THIS PARAGRAPH INVOLVING A RAILROAD OR RAILROADS, AS
A PREREQUISITE TO ITS APPROVAL OF THE PROPOSED TRANSACTION, TO REQUIRE,
UPON EQUITABLE TERMS, THE INCLUSION OF ANOTHER RAILROAD OR OTHER
RAILROADS IN THE TERRITORY INVOLVED, UPON PETITION BY SUCH RAILROAD OR
RAILROADS REQUESTING SUCH INCLUSION, AND UPON A FINDING THAT SUCH
INCLUSION IS CONSISTENT WITH THE PUBLIC INTEREST. 

     *         *         *         *        * 

"(F)  AS A CONDITION OF ITS APPROVAL, UNDER THIS PARAGRAPH, OF ANY
TRANSACTION INVOLVING A CARRIER OR CARRIERS BY RAILROAD SUBJECT TO THE
PROVISIONS OF THIS CHAPTER, THE COMMISSION SHALL REQUIRE A FAIR AND
EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS OF THE RAILROAD
EMPLOYEES AFFECTED  ...  ." 

FN2  THE TERM "BRIDGE CARRIER" APPEARS TO MEAN A SHORT-LINE CARRIER
WHICH TRANSPORTS THROUGH TRAFFIC FROM ONE LONG-LINE CARRIER TO
ANOTHER. 

FN3  DURING THE NEGOTIATIONS, MINNEAPOLIS FIRST OFFERED $69.50, AND
LATER $80, PER SHARE FOR THE STOCK.  ON APRIL 15, 1955, THE SANTA FE
AND PENNSYLVANIA EACH OBTAINED LETTER COMMITMENTS FROM THE TRUSTEES FOR
THE SALE TO EACH OF THEM OF 26% OF THE WESTERN STOCK AT A PRICE OF $100
PER SHARE.  (NEAR THE SAME TIME THE ROCK ISLAND MADE A LIKE OFFER TO
THE TRUSTEES FOR 26% OF THE WESTERN STOCK, BUT THAT OFFER WAS NOT
ACCEPTED.)  BUT A DISPUTE AROSE - AND APPARENTLY STILL EXISTS BETWEEN
THE TRUSTEES AND PENNSYLVANIA - WITH RESPECT TO THE VALIDITY OF THOSE
COMMITMENTS.  THEREUPON, MINNEAPOLIS OFFERED THE TRUSTEES $133 PER
SHARE FOR THE WESTERN STOCK, BUT THAT OFFER WAS NOT ACCEPTED, AND ON
MAY 26, 1955, THE SANTA FE, ACTING, AS THE COMMISSION FOUND, "ON BEHALF
OF THAT CARRIER ALONE," AGREED WITH THE TRUSTEES FOR THE SALE BY THE
LATTER AND PURCHASE BY THE FORMER OF ALL THE WESTERN STOCK HELD BY THE
TRUSTEES AT A PRICE OF $135 PER SHARE, AND THOSE PARTIES ON THAT DATE
ENTERED INTO A CONTRACT, ACCORDINGLY, SUBJECT TO APPROVAL OF THE
COMMISSION. 

FN4  THE CONTRACT OF JUNE 28, 1955, BETWEEN THE SANTA FE AND THE
PENNSYLVANIA COMPANY PROVIDED THAT IT WAS WITHOUT PREJUDICE TO ANY
CLAIMS, CAUSES OF ACTION OR RIGHTS WHICH PENNSYLVANIA MAY HAVE AGAINST
THE TRUSTEES OF THE MCNEAR ESTATE WITH RESPECT TO THE LETTER COMMITMENT
OF APRIL 15, 1955, FOR THE SALE BY THE TRUSTEES TO PENNSYLVANIA OF 26%
OF THE WESTERN STOCK; AND THAT, IN THE EVENT PENNSYLVANIA SHOULD
ACQUIRE FROM THE TRUSTEES, UNDER THAT LETTER COMMITMENT, ALL OR ANY
PART OF SUCH SHARES, THE OBLIGATION OF THE SANTA FE UNDER THE CONTRACT
TO SELL WESTERN SHARES TO THE PENNSYLVANIA COMPANY WAS TO BE REDUCED
ACCORDINGLY.  IT APPEARS THAT LITIGATION WAS THEN, AND IS YET, PENDING
BY PENNSYLVANIA AGAINST THE TRUSTEES FOR THE ENFORCEMENT OF THE LETTER
COMMITMENT OF APRIL 15, 1955. 

THE CONTRACT ALSO CONTAINED A COVENANT WHICH, IN ESSENCE, PROVIDED
THAT (1) WESTERN "WILL CONTINUE TO BE OPERATED AS A SEPARATE AND
INDEPENDENT CARRIER WITH RESPONSIBLE MANAGEMENT LOCATED ALONG ITS LINES
IN ORDER TO PRESERVE TO SHIPPERS AND COMMUNITIES THE PRESENT DIRECT
ACCESS TO ITS OFFICIALS," (2) THAT WESTERN'S PROPERTIES WILL BE
MAINTAINED AND IMPROVED, (3) THAT WESTERN "WILL CONTINUE TO MAINTAIN
ITS OWN SOLICITATION FORCES AND WILL BE ENTIRELY FREE TO SOLICIT
TRAFFIC IN SUCH MANNER AS BEST TO SERVE THE INTERESTS OF" WESTERN, (4)
THAT ALL "EXISTING ROUTES AND CHANNELS OF TRADE VIA WESTERN WILL BE
MAINTAINED AND KEPT OPEN WITHOUT DISCRIMINATION BETWEEN CONNECTING
LINES OF RAILROAD," AND (5) THAT THE BOARD OF DIRECTORS OF WESTERN
SHALL CONSIST OF 11 MEMBERS, OF WHOM ONE SHALL BE THE PRESIDENT OF THE
COMPANY, TWO SHALL BE OFFICERS OF THE SANTA FE, TWO SHALL BE OFFICERS
OF THE PENNSYLVANIA COMPANY, OR PENNSYLVANIA, OR BOTH, AND THE
REMAINING SIX SHALL BE PROMINENT CITIZENS NOT CONNECTED WITH EITHER OF
THE PARTIES BUT SELECTED BY THEM THROUGH MUTUAL AGREEMENT. 

FN5  SEE NOTE 1. 

FN6  THE NEW YORK, CHICAGO & ST. LOUIS RAILROAD COMPANY ("NICKEL
PLATE") AND THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY ("ROCK
ISLAND") SOUGHT AUTHORITY, UNDER SEC. 5(2)(D) OF THE ACT (SEE NOTE 1),
TO BE INCLUDED IN THE ACQUISITION OF WESTERN'S STOCK ON AN EQUAL BASIS
WITH THE SUCCESSFUL APPLICANT OR APPLICANTS. 

FN7  THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ("BURLINGTON")
AND THE WABASH RAILROAD COMPANY ("WABASH") DID NOT OBJECT TO APPROVAL
OF THE SANTA FE-PENNSYLVANIA APPLICATION, PROVIDED THE ORDER REQUIRED
CONTINUATION OF PRESENT ROUTES AND CHANNELS OF TRADE VIA EXISTING
JUNCTIONS AND GATEWAYS AND OF ALL EXISTING TRAFFIC AND OPERATING
RELATIONS AND ARRANGEMENTS, BUT THEY ASKED, IN THE EVENT ANY RAILROAD
OTHER THAN THE SANTA FE AND PENNSYLVANIA BE AUTHORIZED TO ACQUIRE AN
INTEREST IN WESTERN'S STOCK, THAT THEY, TOO, BE AUTHORIZED TO
PARTICIPATE THEREIN TO THE SAME EXTENT AS ANY SUCH OTHER RAILROAD. 

THE ILLINOIS CENTRAL RAILROAD COMPANY ("ILLINOIS CENTRAL"), THE GULF,
MOBILE & OHIO RAILROAD COMPANY ("GULF") AND THE CHICAGO & NORTH WESTERN
RAILWAY COMPANY ("NORTH WESTERN") ASKED THAT, IF EITHER APPLICATION BE
APPROVED, THE ORDER BE CONDITIONED TO REQUIRE THE MAINTENANCE OF ALL
ROUTES AND CHANNELS OF TRADE VIA EXISTING GATEWAYS.  THE MONON RAILROAD
COMPANY ASKED THAT IF THE SANTA FE-PENNSYLVANIA APPLICATION BE
APPROVED, THE ORDER CONTAIN A REQUIREMENT THAT PENNSYLVANIA SHALL GRANT
TO IT CERTAIN TRACKAGE RIGHTS, AND, IF NOT DONE, THAT THE SANTA FE
PENNSYLVANIA APPLICATION BE DENIED. 

FN8  SEE NOTES 6 AND 7. 

FN9  49 U.S.C., N. PRECEDING SEC. 1, 54 STAT. 899. 

FN10  15 U.S.C. SEC. 1, 26 STAT. 209. 

FN11  15 U.S.C. SEC. 18, 38 STAT. 731. 

FN12  IT IS CLEAR THAT SEC. 10 OF THE CLAYTON ACT IS INCLUDED IN THE
"ANTI-TRUST LAWS" REFERRED TO IN SEC. 5(11) OF THE INTERSTATE COMMERCE
ACT.  SECTION 1 OF THE CLAYTON ACT, 15 U.S.C. (1952 ED.)  SEC. 12,
PROVIDES THAT "'ANTI-TRUST LAWS,' AS USED IN SECTIONS 12, 13, 14-21,
AND 22-27 OF THIS TITLE, INCLUDES SECTIONS 1-27 OF THIS TITLE." 
MOREOVER, SEC. 5(11) AVOIDS ANY AMBIGUITY BY INCLUDING "ALL OTHER
RESTRAINTS, LIMITATIONS, AND PROHIBITIONS OF LAW, FEDERAL, STATE, OR
MUNICIPAL." 

FN13  THE LEGISLATIVE HISTORY OF SEC. 10 OF THE CLAYTON ACT, THOUGH
MEAGER, SUPPORTS THE VIEW STATED IN THE TEXT.  IN FACT, THE LANGUAGE OF
THE SEVERAL DRAFTS OF SEC. 10, TOGETHER WITH THE TYPES OF ABUSES CITED
IN SUPPORT OF ITS ENACTMENT, SUGGESTS STRONGLY THAT THE WORDS "DEALINGS
IN SECURITIES" WERE INTENDED TO COVER ONLY A CARRIER'S DEALINGS WITH
RELATED PERSONS IN ITS OWN SECURITIES.  SEE H.R. REP. NO. 627, 63D
CONG., 2D SESS., P. 3; S. REP. NO. 698, 63D CONG., 2D SESS., PP. 47-48;
S. DOC. NO. 585, 63D CONG., 2D SESS., PP. 8-9; 51 CONG. REC. 15943. 

FN14  60 STAT. 242, 5 U.S.C. SEC. 1007(B). 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :













PUBLIC SERVICE COMMISSION OF NEW YORK STATE V. FEDERAL POWER COMMISSION
361 U.S. 195 


NO. 459.  DECIDED DECEMBER 14, 1959.* - REPORTED BELOW:  269 F.2D 865. 

*TOGETHER WITH NO. 473, UNITED GAS IMPROVEMENT CO. ET AL. V. FEDERAL
POWER COMMISSION ET AL., ALSO ON PETITION FOR WRIT OF CERTIORARI TO THE
SAME COURT. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASES REMANDED TO THE COURT
OF APPEALS WITH DIRECTIONS TO REMAND TO FEDERAL POWER COMMISSION FOR
RECONSIDERATION IN THE LIGHT OF ATLANTIC REFINING CO. V. PUBLIC SERVICE
COMMISSION OF NEW YORK, 360 U.S. 378. 

PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK V. FEDERAL POWER
COMMISSION ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE MOTION TO SUBSTITUTE HUMBLE OIL & REFINING COMPANY, A DELAWARE
CORPORATION, IN THE PLACE OF HUMBLE OIL & REFINING COMPANY, A TEXAS
CORPORATION, AS A PARTY RESPONDENT, IS GRANTED.  THE MOTIONS OF PUBLIC
SERVICE ELECTRIC AND GAS COMPANY AND THE ALABAMA LEAGUE OF
MUNICIPALITIES FOR LEAVE TO FILE BRIEFS, AS AMICI CURIAE, ARE GRANTED. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF
THE COURT OF APPEALS IS VACATED AND THE CASES ARE REMANDED TO THAT
COURT WITH DIRECTIONS TO REMAND THE CASES TO THE FEDERAL POWER
COMMISSION FOR RECONSIDERATION AND REDETERMINATION IN THE LIGHT OF
ATLANTIC REFINING CO. V. PUBLIC SERVICE COMMISSION OF NEW YORK, 360
U.S. 378. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :















FAUBUS V. AARON 361 U.S. 197 


NO. 458.  DECIDED DECEMBER 14, 1959* - 173 F. SUPP. 944, AFFIRMED. 

*TOGETHER WITH NO. 471, STATE BOARD OF EDUCATION ET AL. V. AARON ET
AL., ALSO ON APPEAL FROM THE SAME COURT. 


FAUBUS, GOVERNOR OF ARKANSAS, V. AARON ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF ARKANSAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE WHITTAKER WOULD NOTE PROBABLE JURISDICTION. 
..END :













KING V. CONSOLIDATED UNDERWRITERS 361 U.S. 198 


NO. 273, MISC.  DECIDED DECEMBER 14, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: - TEX. - , 325 S.W.2D 127. 


KING V. CONSOLIDATED UNDERWRITERS. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WEST V. UNITED STATES 361 U.S. 118 


NO. 11.  ARGUED NOVEMBER 12, 1959 - DECIDED DECEMBER 7, 1959 - 256 F.2D
671, AFFIRMED. 


THIS IS A LIBEL UNDER THE PUBLIC VESSELS ACT TO RECOVER DAMAGES FROM
THE UNITED STATES, AS SHIPOWNER, FOR INJURIES SUFFERED BY A SHORE-BASED
EMPLOYEE OF AN INDEPENDENT CONTRACTOR WHILE WORKING ON A SHIP
UNDERGOING A COMPLETE OVERHAUL AT THE CONTRACTOR'S REPAIR DOCKS.  THE
SHIP HAD BEEN COMPLETELY DEACTIVATED AND STORED FOR SEVERAL YEARS, AND
THE CONTRACTOR HAD BEEN EMPLOYED TO OVERHAUL IT COMPLETELY AND MAKE IT
SEAWORTHY BEFORE IT WAS REACTIVATED.  THE SHIP WAS UNDER THE COMPLETE
CONTROL OF THE CONTRACTOR, AND THE ONLY REPRESENTATIVES OF THE
GOVERNMENT ABOARD WERE THERE SOLELY TO SERVE AS INSPECTORS.  HELD:  THE
UNITED STATES WAS NOT LIABLE.  PP. 118-124. 

1.  THERE COULD BE NO EXPRESS OR IMPLIED WARRANTY OF SEAWORTHINESS TO
ANY PERSON IN THE CIRCUMSTANCES OF THIS CASE.  SEAS SHIPPING CO. V.
SIERACKI, 328 U.S. 85, DISTINGUISHED.  PP. 120-122. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, THE SHIPOWNER COULD NOT BE
CHARGED WITH NEGLIGENCE IN FAILING TO MAINTAIN A SAFE PLACE TO WORK. 
PP. 122-124. 

WEST V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A LIBEL FILED PURSUANT TO THE PUBLIC VESSELS ACT, 46 U.S.C.
SEC. 781 ET SEQ., AND INVOLVING THE LIABILITY OF A SHIPOWNER FOR
INJURIES SUFFERED BY AN EMPLOYEE OF AN INDEPENDENT CONTRACTOR WHILE
WORKING INSIDE THE MAIN ENGINE OF A VESSEL AS IT WAS UNDERGOING A
COMPLETE OVERHAUL AT THE CONTRACTOR'S REPAIR DOCKS IN PHILADELPHIA. 
PETITIONER CLAIMS THE VESSEL WAS UNSEAWORTHY AND THAT RESPONDENT WAS
NEGLIGENT, IN ANY EVENT, IN NOT FURNISHING HIM A SAFE PLACE TO WORK. 
THE DISTRICT COURT DENIED RECOVERY, 143 F. SUPP. 473, AND THE COURT OF
APPEALS AFFIRMED, 256 F.2D 671.  WE GRANTED CERTIORARI.  359 U.S. 924. 
WE AFFIRM THE JUDGMENT.  (FN1) 

THE FINDINGS OF THE TRIAL JUDGE, APPROVED BY THE COURT OF APPEALS,
SHOW THAT THE S.S. MARY AUSTIN IS OWNED BY THE UNITED STATES AND WAS
BUILT DURING WORLD WAR II AS A "LIBERTY" SHIP.  IT HAD BEEN IN THE
"MOTH-BALL FLEET" AT NORFOLK, VIRGINIA, IN TOTAL DEACTIVATION FOR
SEVERAL YEARS, WITH ITS PIPES, BOILERS, AND TANKS COMPLETELY DRAINED,
AND AN OIL PRESERVATIVE INJECTED THROUGH THEM TO PREVENT RUSTING.  IN
1951 THE VESSEL WAS ORDERED REACTIVATED AND A CONTRACTOR, ATLANTIC PORT
CONTRACTORS, INC., WAS SELECTED TO PREPARE HER FOR SEA DUTY.  UNDER THE
SPECIFICATIONS OF THE CONTRACT, ATLANTIC WAS TO OVERHAUL AND REACTIVATE
THE MARY AUSTIN COMPLETELY, "CLEANING AND REPAIRING ALL WATER LINES,
REPLACEMENT OF ALL DEFECTIVE OR MISSING PLUGS AND OTHER PARTS, AND THE
TESTING OF ALL LINES BEFORE CLOSING AND PLACING THEM IN ACTIVE
OPERATING CONDITION."  THE CONTRACTOR WAS TO HAVE COMPLETE
RESPONSIBILITY AND CONTROL OF THE MAKING OF THE REPAIRS, WITH THE RIGHT
IN THE UNITED STATES TO INSPECT THE WORK AND MATERIALS TO INSURE
COMPLIANCE WITH THE CONTRACT.  FOR THIS PURPOSE, THE UNITED STATES
PLACED SIX OF ITS MEN - A CAPTAIN, CHIEF MATE, SECOND MATE, CHIEF
ENGINEER, ASSISTANT ENGINEER, AND STEWARD - ON BOARD THE VESSEL. 
HOWEVER, THEY SIGNED NO SHIPPING ARTICLES AND HAD NO "CONTROL OF THE
SHIP IN THE ORDINARILY ACCEPTED CONTEXT," THEIR SOLE FUNCTION BEING TO
SERVE AS INSPECTORS FOR THE UNITED STATES.  THEREAFTER THE RESPONDENT
TOWED THE MARY AUSTIN TO THE REPAIR DOCKS OF THE CONTRACTOR AT
PHILADELPHIA AND TURNED HER OVER TO IT FOR THE PERFORMANCE OF THE
REPAIR CONTRACT. 

THE PETITIONER, A SHORE-BASED EMPLOYEE OF THE CONTRACTOR, WAS WORKING
INSIDE THE LOW PRESSURE CYLINDER OF THE MAIN ENGINE OF THE SHIP WHEN HE
WAS INJURED.  HE WAS KNEELING ON HIS RIGHT KNEE WHEN AN END PLUG FROM A
ONE-INCH PIPE IN THE WATER SYSTEM WAS PROPELLED THROUGH THE TOP OF THE
OPEN CYLINDER AND HIT HIS LEFT KNEE.  THE FINDINGS INDICATE THAT THE
PLUG WAS LOOSELY FITTED ON AN OVERHEAD WATER PIPE AND THAT, WHEN
ANOTHER EMPLOYEE OF THE CONTRACTOR TURNED ON THE WATER WITHOUT WARNING,
THE PLUG WAS FORCED OFF, HITTING PETITIONER. 

RECOVERY WAS SOUGHT ON THE THEORY THAT THE VESSEL WAS UNSEAWORTHY IN
THAT THE PLUG HAD BEEN FITTED INSECURELY ON THE PIPE AND WAS THEREFORE
INCAPABLE OF WITHSTANDING THE WATER PRESSURE EXERTED UPON IT.  IN
ADDITION, PETITIONER CLAIMED THAT THE UNITED STATES WAS LIABLE FOR
NEGLIGENCE IN NOT MAINTAINING A SAFE PLACE FOR HIM TO WORK, A DUTY
ASSERTED TO BE NONDELEGABLE AND ABSOLUTE. 

                               I. 

PETITIONER CONTENDS THAT HE COMES UNDER THE DOCTRINE OF SEAS SHIPPING
CO. V. SIERACKI, 328 U.S. 85 (1946), AND SUBSEQUENT CASES, HOLDING THAT
THE WARRANTY OF SEAWORTHINESS APPLIES TO SHORE-BASED WORKERS WHILE ON
BOARD SHIP AND PERFORMING WORK TRADITIONALLY DONE BY SEAMEN.  WE DO NOT
THINK SO. IN SIERACKI, THE COURT SAID THAT THE WARRANTY APPLIED BECAUSE
SUCH A SHORE WORKER "IS, IN SHORT, A SEAMAN  ...  DOING A SEAMAN'S WORK
AND INCURRING A SEAMAN'S HAZARDS."  ID., 99.  THE FINDINGS HERE,
HOWEVER, SHOW THAT, FOR SEVERAL YEARS, THE MARY AUSTIN WAS WITHDRAWN
FROM ANY OPERATION WHATEVER WHILE IN STORAGE WITH THE "MOTH-BALL
FLEET."  THE WATER HAD BEEN DRAINED FROM HER WATER SYSTEM AND AN
ANTIRUST PRESERVATIVE WAS INJECTED THEREIN.  HER SUBSEQUENT TOWING TO
PHILADELPHIA WAS FOR THE SPECIFIC PURPOSE OF DELIVERY TO ATLANTIC TO
RENDER HER SEAWORTHY.  THE REPRESENTATION OF THE REPAIR CONTRACT
SPECIFICATIONS WAS THAT SHE WAS NOT SEAWORTHY FOR A VOYAGE AND THAT THE
MAJOR REPAIRS CALLED FOR THEREIN WOULD BE NECESSARY BEFORE ONE WOULD BE
UNDERTAKEN.  IT IS EVIDENT THAT THE SOLE PURPOSE OF THE SHIP'S BEING AT
ATLANTIC'S REPAIR DOCK AT PHILADELPHIA WAS TO MAKE HER SEAWORTHY.  THE
TOTALITY OF THE REPARATION ON THE VESSEL INCLUDED COMPLIANCE WITH THE
HUNDREDS OF SPECIFICATIONS IN THE CONTRACT CALLING FOR THE REPAIRING,
RECONDITIONING, AND REPLACEMENT, WHERE NECESSARY, OF EQUIPMENT SO AS TO
MAKE FIT ALL THE MACHINERY, EQUIPMENT, GEAR, AND EVERY PART OF THE
VESSEL.  STRANGELY ENOUGH, THE DEFECTIVE WATER LINE AND THE METAL PLUG
SPECIFICALLY POINTED TO BY PETITIONER AS BEING DEFECTIVE WERE LISTED IN
THE SPECIFICATIONS FOR "CLEANING AND REPAIRING" AND THE "REPLACEMENT OF
ALL DEFECTIVE OR MISSING PLUGS."  IN SHORT, AS THE TRIAL COURT SAID,
THE WORK TO BE DONE ON THE VESSEL WAS EQUIVALENT TO "HOME PORT
STRUCTURAL REPAIRS." 

ON THE OTHER HAND, THE VESSELS INVOLVED IN THE CASES DEPENDED UPON BY
PETITIONER (FN2) WERE, AT THE TIMES OF THE INJURIES, IN THE HANDS AND
UNDER THE CONTROL OF THE OWNERS OR CHARTERERS AND, INSTEAD OF
UNDERGOING GENERAL REPAIRS, WERE IN ACTIVE MARITIME SERVICE IN THE
COURSE OF LOADING OR UNLOADING CARGO PURSUANT TO VOYAGES.  THE WORKMEN,
LIKE THE SEAMEN, DEPENDED UPON THE SEAWORTHINESS OF THE SHIPS, THEIR
EQUIPMENT, AND GEAR.  THEY WERE OBLIGED TO WORK WITH WHATEVER THE
SHIPOWNERS SUPPLIED AND IT WAS ONLY FAIR FOR THE LATTER TO BE SUBJECTED
TO THE ABSOLUTE WARRANTY THAT THE SHIPS WERE SEAWORTHY.  BUT NO SUCH
SITUATION IS PRESENT HERE.  THE MARY AUSTIN, AS ANYONE COULD SEE, WAS
NOT IN MARITIME SERVICE.  SHE WAS UNDERGOING MAJOR REPAIRS AND COMPLETE
RENOVATION, AS THE PETITIONER KNEW.  FURTHERMORE, HE TOOK HIS ORDERS
FROM THE CONTRACTOR, NOT THE SHIPOWNER.  HE KNEW WHO WAS IN CONTROL. 
THIS UNDERTAKING WAS NOT "SHIP'S WORK" BUT A COMPLETE OVERHAUL OF SUCH
NATURE, MAGNITUDE, AND IMPORTANCE AS TO REQUIRE THE VESSEL TO BE TURNED
OVER TO A SHIP REPAIR CONTRACTOR AND DOCKED AT ITS PIER FOR THE SOLE
PURPOSE OF MAKING HER SEAWORTHY.  IT WOULD BE AN UNFAIR CONTRADICTION
TO SAY THAT THE OWNER HELD THE VESSEL OUT AS SEAWORTHY IN SUCH A CASE. 
IT WOULD APPEAR THAT THE FOCUS SHOULD BE UPON THE STATUS OF THE SHIP,
THE PATTERN OF THE REPAIRS, AND THE EXTENSIVE NATURE OF THE WORK
CONTRACTED TO BE DONE, RATHER THAN THE SPECIFIC TYPE OF WORK THAT EACH
OF THE NUMEROUS SHORE-BASED WORKMEN IS DOING ON SHIPBOARD AT THE MOMENT
OF INJURY.  THE JOB ANALYSIS WHICH THE LATTER WOULD CALL FOR WOULD LEAD
TO FORTUITOUS RESULTS.  WE, THEREFORE, DO NOT BELIEVE THAT THE SIERACKI
LINE OF CASES IS APPLICABLE, WHICH OBVIATES ANY NECESSITY OF OUR
DISCUSSION OF SITUATIONS WHERE THE VESSELS THEMSELVES ARE NOT IN THE
STATUS OF THE MARY AUSTIN.  HERE THERE COULD BE NO EXPRESS OR IMPLIED
WARRANTY OF SEAWORTHINESS TO ANY PERSON. 

                                          II. 

IN PRESENTING HIS ALTERNATIVE GROUND OF RECOVERY, THE PETITIONER HAS
A DUAL THEORY.  HE FIRST SAYS THAT THE DUTY TO FURNISH A SAFE PLACE TO
WORK IS A NONDELEGABLE DUTY, THE VIOLATION OF WHICH DOES NOT DEPEND ON
FAULT.  IF UNSUCCESSFUL IN THIS POSITION, HE INSISTS THAT RESPONDENT'S
FAILURE TO KEEP THE WATER PLUG TIGHT WAS NEGLIGENCE.  (FN3) 

OTHER THAN THE DOCTRINE OF SEAWORTHINESS, WHOSE NONRELEVANCY TO THIS
CASE WE HAVE SET FORTH, OUR DECISIONS ESTABLISH NO BASIS OF LIABILITY
APART FROM FAULT.  OF COURSE, ONE ASPECT OF THE SHIPOWNER'S DUTY TO
REFRAIN FROM NEGLIGENT CONDUCT IS EMBODIED IN HIS DUTY TO EXERCISE
REASONABLE CARE TO FURNISH A SAFE PLACE TO WORK.  BUT WE DO NOT BELIEVE
THAT SUCH A DUTY WAS OWED UNDER THE CIRCUMSTANCES OF THIS CASE. 
PETITIONER OVERLOOKS THAT HERE THE RESPONDENT HAD NO CONTROL OVER THE
VESSEL, OR POWER EITHER TO SUPERVISE OR TO CONTROL THE REPAIR WORK IN
WHICH PETITIONER WAS ENGAGED.  WE BELIEVE THIS TO BE DECISIVE AGAINST
BOTH ASPECTS OF PLAINTIFF'S DUAL THEORY.  THERE WAS NO HIDDEN DEFECT IN
THE WATER SYSTEM.  IT WAS ONE OF THE OBJECTS TO BE REPAIRED AND ITS
PLUGS WERE TO BE REPLACED WHERE NECESSARY.  ITS TESTING WAS TO BE DONE
BY THE CONTRACTOR - NOT BY THE SHIPOWNER.  IT APPEARS MANIFESTLY UNFAIR
TO APPLY THE REQUIREMENT OF A SAFE PLACE TO WORK TO THE SHIPOWNER WHEN
HE HAS NO CONTROL OVER THE SHIP OR THE REPAIRS, AND THE WORK OF REPAIR
IN EFFECT CREATES THE DANGER WHICH MAKES THE PLACE UNSAFE.  THE
RESPONDENT, HAVING HIRED ATLANTIC TO PERFORM THE OVERHAUL AND
RECONDITIONING OF THE VESSEL - INCLUDING THE TESTING - WAS UNDER NO
DUTY TO PROTECT PETITIONER FROM RISKS THAT WERE INHERENT IN THE
CARRYING OUT OF THE CONTRACT.  THE COURTS OF APPEALS SEEM TO HAVE
FOLLOWED THIS RULE.  SEE FILIPEK V. MOORE-MCCORMACK LINES, 258 F.2D
734.  ALTHOUGH SOME OF RESPONDENT'S EMPLOYEES WERE ON BOARD THE SHIP
HERE, THIS WOULD NOT ATTACH LIABILITY SINCE THEY GAVE NO ORDERS, AND
DID NOT PARTICIPATE IN THE WORK OR SUPERVISE ITS PROGRESS, BUT WERE
SIMPLY INSPECTORS OR OBSERVERS.  ID., AT 737. 

PETITIONER CITES CRUMADY V. THE JOACHIM HENDRIK FISSER, 358 U.S. 423
(1959), AS THE CHIEF SUPPORT FOR HIS CONTENTION.  THERE THE VESSEL WAS
BEING UNLOADED OF CARGO AND ITS EMPLOYEES HAD SET THE SAFETY CUTOFF
DEVICE ON ITS WINCH AT TWICE THE TONNAGE LIMIT OF THE RIGGING.  WHEN
THE STEVEDORE, UNAWARE OF THIS SITUATION, BROUGHT THE WINCH INTO PLAY,
THE RIGGING SNAPPED AND THE INJURY RESULTED.   WE FOUND THAT THE SAFETY
CUTOFF HAD BEEN ADJUSTED BY EMPLOYEES OF THE VESSEL IN A WAY THAT MADE
IT UNSAFE AND DANGEROUS, AND THEREFORE THE VESSEL WAS LIABLE.  BUT THAT
SITUATION IS NOT COMPARABLE.  THERE THE VESSEL WAS IN CONTROL OF THE
OWNER, AND HE WAS LIABLE UNDER THE ABSOLUTE WARRANTY OF SEAWORTHINESS,
AS WELL AS FOR THE NEGLIGENCE OF THE SHIP'S EMPLOYEES IN SETTING THE
SHIP'S SAFETY CUTOFF DEVICE.  ANY CULPABILITY HERE COULD BE CHARGEABLE
ONLY TO THE CONTRACTOR, NOT TO THE SHIPOWNER.  NOR WAS UNITED PILOTS
ASSN. V. HALECKI, 358 U.S. 613 (1959), A SIMILAR SITUATION.  IN THAT
CASE THE SHIPOWNER DIRECTED THE USE OF CARBON TETRACHLORIDE IN THE
CONFINED SPACES OF THE ENGINE ROOM.  THE RESULTING FUMES FATALLY
INJURED THE SHORE-BASED WORKMAN, NECESSITATING A REMAND ON THE
NEGLIGENCE QUESTION.  BUT HERE THE OWNER HAD NO CONTROL OF THE SHIP; IT
HAD BEEN TURNED OVER TO A REPAIR CONTRACTOR FOR EXTENSIVE OVERHAUL,
WHICH WAS NOT PERFORMED UNDER THE DIRECTION OF THE SHIPOWNER.  WHILE
THERE MIGHT BE INSTANCES OF HIDDEN OR INHERENT DEFECTS, SOMETIMES
CALLED "LATENT," THAT WOULD MAKE THE OWNER GUILTY OF NEGLIGENCE, EVEN
THOUGH HE HAD NO CONTROL OF THE REPAIRS, WE HOLD THAT UNDER THE
CIRCUMSTANCES HERE THE SHIPOWNER COULD NOT BE SO CHARGEABLE.   THE
JUDGMENT IS THEREFORE AFFIRMED. 

FN1  THIS OBVIATES THE NECESSITY OF DECIDING THE RESPONDENT'S CLAIM
OVER AND AGAINST THE CONTRACTOR. 

FN2  ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52 (1914);
INTERNATIONAL STEVEDORING CO. V. HAVERTY, 272 U.S. 50 (1926); POPE &
TALBOT V. HAWN, 346 U.S. 406 (1953); ALASKA STEAMSHIP CO. V. PETTERSON,
347 U.S. 396 (1954); CRUMADY V. THE JOACHIM HENDRIK FISSER, 358 U.S.
423 (1959). 

FN3  THERE IS NO CLAIM OF NEGLIGENCE IN THE SELECTION OF ATLANTIC TO
PERFORM THE OVERHAUL ON THE MARY AUSTIN. 
..END :














DESIMONE V. UNITED STATES 361 U.S. 125 


NO. 202.  DECIDED DECEMBER 7, 1959 - REPORTED BELOW:  267 F.2D 741. 


CERTIORARI GRANTED; JUDGMENT AND ORDERS BELOW VACATED; AND CAUSE
REMANDED TO DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE PROCEEDINGS
AS MOOT. 

DE SIMONE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  IT APPEARS FROM THE
GOVERNMENT'S SUGGESTION OF MOOTNESS AND THE MEMORANDA FILED IN
CONNECTION THEREWITH THAT THE PETITIONER IS NO LONGER IN CUSTODY OF THE
WARDEN TO WHOM THE WRIT OF HABEAS CORPUS AND TESTIFICANDUM WAS
DIRECTED, AND THAT THE GOVERNMENT WILL TAKE NO FURTHER ACTION UNDER ANY
ORDER PURSUANT TO WHICH PETITIONER MIGHT BE HELD IN CONTEMPT. 
ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS; THE ORDER OF THE
DISTRICT COURT, ISSUED MAY 29, 1959, DIRECTING THE PETITIONER TO APPEAR
BEFORE THE GRAND JURY; THE ORDER TO SHOW CAUSE ISSUED BY THE DISTRICT
COURT ON MAY 19, 1959; AND THE ORDER OF THE DISTRICT COURT, ENTERED
APRIL 3, 1959, DENYING THE PETITIONER'S MOTION TO QUASH THE WRIT OF
HABEAS CORPUS AD TESTIFICANDUM, AND DIRECTING HIM TO APPEAR BEFORE THE
GRAND JURY ON APRIL 9, 1959, ARE VACATED.  THE CAUSE IS REMANDED TO THE
DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE PROCEEDING AS MOOT. 
..END :






















FLETCHER V. BRYAN 361 U.S. 126 


NO. 75, MISC.  DECIDED DECEMBER 7, 1959 - REPORTED BELOW:  266 F.2D 72. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED WITH
DIRECTIONS TO DISMISS THE PETITION FOR WRIT OF MANDAMUS AS MOOT. 

FLETCHER V. BRYAN, JUDGE OF THE UNITED STATES DISTRICT COURT, EASTERN
DISTRICT OF VIRGINIA. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

IN LIGHT OF THE SUGGESTION OF MOOTNESS DUE TO THE DEATH OF THE
PETITIONER, THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE
PETITION FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT
OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THAT COURT WITH
DIRECTIONS TO DISMISS THE PETITION FOR WRIT OF MANDAMUS AS MOOT. 
..END :









WEST TOWNS BUS CO. V. LAU 361 U.S. 127 


NO. 447.  DECIDED DECEMBER 7, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  16 ILL. 2D 442, 158 N.E.2D 63. 


WEST TOWNS BUS CO. V. LAU. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MATTHEWS V. HANDLEY 361 U.S. 127 


NO. 448.  DECIDED DECEMBER 7, 1959 - JUDGMENT AFFIRMED. 


MATTHEWS ET AL. V. HANDLEY, GOVERNOR OF INDIANA, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF INDIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















MACNEIL V. MORTON, JUSTICES OF THE SUPERIOR COURT 361 U.S. 128 


NO. 432.  DECIDED DECEMBER 7, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  339 MASS. - , 158 N.E.2D 671. 


MACNEIL V. MORTON ET AL., JUSTICES OF THE SUPERIOR COURT. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















VERNON V. BENNETT 361 U.S. 128 


NO. 397, MISC.  DECIDED DECEMBER 7, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


VERNON V. BENNETT, WARDEN. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















HENRY V. UNITED STATES 361 U.S. 98 


NO. 17.  ARGUED OCTOBER 20-21, 1959 - DECIDED NOVEMBER 23, 1959 - 259
F.2D 725, REVERSED. 


WITHOUT A WARRANT FOR SEARCH OR ARREST, FEDERAL OFFICERS WHO WERE
INVESTIGATING A THEFT FROM AN INTERSTATE SHIPMENT OF WHISKEY TWICE
OBSERVED CARTONS BEING PLACED IN A MOTORCAR IN A RESIDENTIAL DISTRICT,
FOLLOWED AND STOPPED THE CAR, ARRESTED PETITIONER AND ANOTHER MAN WHO
WERE IN IT, SEARCHED THE CAR, AND FOUND AND SEIZED CARTONS CONTAINING
RADIOS STOLEN FROM AN INTERSTATE SHIPMENT.  AT PETITIONER'S TRIAL FOR
UNLAWFULLY POSSESSING RADIOS STOLEN FROM AN INTERSTATE SHIPMENT, HIS
TIMELY MOTION TO SUPPRESS THE EVIDENCE SO SEIZED WAS OVERRULED AND HE
WAS CONVICTED.  HELD:  ON THE RECORD IN THIS CASE, THE OFFICERS DID NOT
HAVE PROBABLE CAUSE FOR THE ARREST WHEN THEY STOPPED THE CAR; THE
SEARCH WAS ILLEGAL; THE ARTICLES SEIZED WERE NOT ADMISSIBLE IN
EVIDENCE; AND THE CONVICTION IS REVERSED.  PP. 98-104. 

HENRY V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER STANDS CONVICTED OF UNLAWFULLY POSSESSING THREE CARTONS OF
RADIOS VALUED AT MORE THAN $100 WHICH HAD BEEN STOLEN FROM AN
INTERSTATE SHIPMENT.  SEE 18 U.S.C. SEC. 659.  THE ISSUE IN THE CASE IS
WHETHER THERE WAS PROBABLE CAUSE FOR THE ARREST LEADING TO THE SEARCH
THAT PRODUCED THE EVIDENCE ON WHICH THE CONVICTION RESTS.  A TIMELY
MOTION TO SUPPRESS THE EVIDENCE WAS MADE BY PETITIONER AND OVERRULED BY
THE DISTRICT COURT; AND THE JUDGMENT OF CONVICTION WAS AFFIRMED BY THE
COURT OF APPEALS ON A DIVIDED VOTE.  259 F.2D 725.  THE CASE IS HERE ON
A PETITION FOR A WRIT OF CERTIORARI, 359 U.S. 904. 

THERE WAS A THEFT FROM AN INTERSTATE SHIPMENT OF WHISKY AT A TERMINAL
IN CHICAGO.  THE NEXT DAY TWO FBI AGENTS WERE IN THE NEIGHBORHOOD
INVESTIGATING IT.  THEY SAW PETITIONER AND ONE PIEROTTI WALK ACROSS A
STREET FROM A TAVERN AND GET INTO AN AUTOMOBILE.  THE AGENTS HAD BEEN
GIVEN, BY THE EMPLOYER OF PIEROTTI, INFORMATION OF AN UNDISCLOSED
NATURE "CONCERNING THE IMPLICATION OF THE DEFENDANT PIEROTTI WITH
INTERSTATE SHIPMENTS."  BUT, SO FAR AS THE RECORD SHOWS, HE NEVER WENT
SO FAR AS TO TELL THE AGENTS HE SUSPECTED PIEROTTI OF ANY SUCH THEFTS. 
THE AGENTS FOLLOWED THE CAR AND SAW IT ENTER AN ALLEY AND STOP. 
PETITIONER GOT OUT OF THE CAR, ENTERED A GANGWAY LEADING TO RESIDENTIAL
PREMISES AND RETURNED IN A FEW MINUTES WITH SOME CARTONS.  HE PLACED
THEM IN THE CAR AND HE AND PIEROTTI DROVE OFF.  THE AGENTS WERE UNABLE
TO FOLLOW THE CAR.  BUT LATER THEY FOUND IT PARKED AT THE SAME PLACE
NEAR THE TAVERN.  SHORTLY THEY SAW PETITIONER AND PIEROTTI LEAVE THE
TAVERN, GET INTO THE CAR, AND DRIVE OFF.  THE CAR STOPPED IN THE SAME
ALLEY AS BEFORE; PETITIONER ENTERED THE SAME GANGWAY AND RETURNED WITH
MORE CARTONS.  THE AGENTS OBSERVED THIS TRANSACTION FROM A DISTANCE OF
SOME 300 FEET AND COULD NOT DETERMINE THE SIZE, NUMBER OR CONTENTS OF
THE CARTONS.  AS THE CAR DROVE OFF THE AGENTS FOLLOWED IT AND FINALLY,
WHEN THEY MET IT, WAVED IT TO A STOP.  AS HE GOT OUT OF THE CAR,
PETITIONER WAS HEARD TO SAY, "HOLD IT; IT IS THE G'S."  THIS WAS
FOLLOWED BY, "TELL HIM HE (YOU) JUST PICKED ME UP."  THE AGENTS
SEARCHED THE CAR, PLACED THE CARTONS (WHICH BORE THE NAME "ADMIRAL" AND
WERE ADDRESSED TO AN OUT-OF-STATE COMPANY) IN THEIR CAR, TOOK THE
MERCHANDISE AND PETITIONER AND PIEROTTI TO THEIR OFFICE AND HELD THEM
FOR ABOUT TWO HOURS WHEN THE AGENTS LEARNED THAT THE CARTONS CONTAINED
STOLEN RADIOS.  THEY THEN PLACED THE MEN UNDER FORMAL ARREST. 

THE STATUTORY AUTHORITY OF FBI OFFICERS AND AGENTS TO MAKE FELONY
ARRESTS WITHOUT A WARRANT IS RESTRICTED TO OFFENSES COMMITTED "IN THEIR
PRESENCE" OR TO INSTANCES WHERE THEY HAVE "REASONABLE GROUNDS TO
BELIEVE THAT THE PERSON TO BE ARRESTED HAS COMMITTED OR IS COMMITTING"
A FELONY.  18 U.S.C. SEC. 3052.  THE STATUTE STATES THE CONSTITUTIONAL
STANDARD, FOR IT IS THE COMMAND OF THE FOURTH AMENDMENT THAT NO
WARRANTS FOR EITHER SEARCHES OR ARRESTS SHALL ISSUE EXCEPT "UPON
PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED." 

THE REQUIREMENT OF PROBABLE CAUSE HAS ROOTS THAT ARE DEEP IN OUR
HISTORY.  THE GENERAL WARRANT, (FN1) IN WHICH THE NAME OF THE PERSON TO
BE ARRESTED WAS LEFT BLANK, AND THE WRITS OF ASSISTANCE, AGAINST WHICH
JAMES OTIS INVEIGHED, (FN2) BOTH PERPETUATED THE OPPRESSIVE PRACTICE OF
ALLOWING THE POLICE TO ARREST AND SEARCH ON SUSPICION.  POLICE CONTROL
TOOK THE PLACE OF JUDICIAL CONTROL, SINCE NO SHOWING OF "PROBABLE
CAUSE" BEFORE A MAGISTRATE WAS REQUIRED.  THE VIRGINIA DECLARATION OF
RIGHTS, ADOPTED JUNE 12, 1776, REBELLED AGAINST THAT PRACTICE: 

"THAT GENERAL WARRANTS, WHEREBY ANY OFFICER OR MESSENGER MAY BE
COMMANDED TO SEARCH SUSPECTED PLACES WITHOUT EVIDENCE OF A FACT
COMMITTED, OR TO SEIZE ANY PERSON OR PERSONS NOT NAMED, OR WHOSE
OFFENCE IS NOT PARTICULARLY DESCRIBED AND SUPPORTED BY EVIDENCE, ARE
GRIEVOUS AND OPPRESSIVE, AND OUGHT NOT TO BE GRANTED." 

THE MARYLAND DECLARATION OF RIGHTS (1776), ART. XXIII, WAS EQUALLY
EMPHATIC: 

"THAT ALL WARRANTS, WITHOUT OATH OR AFFIRMATION, TO SEARCH SUSPECTED
PLACES, OR TO SEIZE ANY PERSON OR PROPERTY, ARE GRIEVOUS AND
OPPRESSIVE; AND ALL GENERAL WARRANTS - TO SEARCH SUSPECTED PLACES, OR
TO APPREHEND SUSPECTED PERSONS, WITHOUT NAMING OR DESCRIBING THE PLACE,
OR THE PERSON IN SPECIAL - ARE ILLEGAL, AND OUGHT NOT TO BE GRANTED." 

AND SEE NORTH CAROLINA DECLARATION OF RIGHTS (1776), ART. XI;
PENNSYLVANIA CONSTITUTION (1776), ART. X; MASSACHUSETTS CONSTITUTION
(1780), PT. I, ART. XIV. 

THAT PHILOSOPHY LATER WAS REFLECTED IN THE FOURTH AMENDMENT.  AND AS
THE EARLY AMERICAN DECISIONS BOTH BEFORE (FN3) AND IMMEDIATELY AFTER
(FN4) ITS ADOPTION SHOW, COMMON RUMOR OR REPORT, SUSPICION, OR EVEN
"STRONG REASON TO SUSPECT" (FN5) WAS NOT ADEQUATE TO SUPPORT A WARRANT
FOR ARREST.  AND THAT PRINCIPLE HAS SURVIVED TO THIS DAY.  SEE UNITED
STATES V. DI RE, 332 U.S. 581, 593-595; JOHNSON V. UNITED STATES, 333
U.S. 10, 13-15; GIORDENELLO V. UNITED STATES, 357 U.S. 480, 486.  ITS
HIGH WATER WAS JOHNSON V. UNITED STATES, SUPRA, WHERE THE SMELL OF
OPIUM COMING FROM A CLOSED ROOM WAS NOT ENOUGH TO SUPPORT AN ARREST AND
SEARCH WITHOUT A WARRANT.  IT WAS AGAINST THIS BACKGROUND THAT TWO
SCHOLARS RECENTLY WROTE, "ARREST ON MERE SUSPICION COLLIDES VIOLENTLY
WITH THE BASIC HUMAN RIGHT OF LIBERTY."  (FN6) 

EVIDENCE REQUIRED TO ESTABLISH GUILT IS NOT NECESSARY.  BRINEGAR V.
UNITED STATES, 338 U.S. 160; DRAPER V. UNITED STATES, 358 U.S. 307.  ON
THE OTHER HAND, GOOD FAITH ON THE PART OF THE ARRESTING OFFICERS IS NOT
ENOUGH.  PROBABLE CAUSE EXISTS IF THE FACTS AND CIRCUMSTANCES KNOWN TO
THE OFFICER WARRANT A PRUDENT MAN IN BELIEVING THAT THE OFFENSE HAS
BEEN COMMITTED.  STACEY V. EMERY, 97 U.S. 642, 645.  AND SEE DIRECTOR
GENERAL V. KASTENBAUM, 263 U.S. 25, 28; UNITED STATES V. DI RE, SUPRA,
AT 592; GIORDENELLO V. UNITED STATES, SUPRA, AT 486.  IT IS IMPORTANT,
WE THINK, THAT THIS REQUIREMENT BE STRICTLY ENFORCED, FOR THE STANDARD
SET BY THE CONSTITUTION PROTECTS BOTH THE OFFICER AND THE CITIZEN.  IF
THE OFFICER ACTS WITH PROBABLE CAUSE, HE IS PROTECTED EVEN THOUGH IT
TURNS OUT THAT THE CITIZEN IS INNOCENT.  CARROLL V. UNITED STATES, 267
U.S. 132, 156.  AND WHILE A SEARCH WITHOUT A WARRANT IS, WITHIN LIMITS,
PERMISSIBLE IF INCIDENT TO A LAWFUL ARREST, IF AN ARREST WITHOUT A
WARRANT IS TO SUPPORT AN INCIDENTAL SEARCH, IT MUST BE MADE WITH
PROBABLE CAUSE.  CARROLL V.  UNITED STATES, SUPRA, AT 155-156.  THIS
IMMUNITY OF OFFICERS CANNOT FAIRLY BE ENLARGED WITHOUT JEOPARDIZING THE
PRIVACY OR SECURITY OF THE CITIZEN.  WE TURN THEN TO THE QUESTION
WHETHER PRUDENT MEN IN THE SHOES OF THESE OFFICERS (BRINEGAR V. UNITED
STATES, SUPRA, AT 175) WOULD HAVE SEEN ENOUGH TO PERMIT THEM TO BELIEVE
THAT PETITIONER WAS VIOLATING OR HAD VIOLATED THE LAW.  WE THINK NOT. 

THE PROSECUTION CONCEDED BELOW, AND ADHERES TO THE CONCESSION HERE,
(FN7) THAT THE ARREST TOOK PLACE WHEN THE FEDERAL AGENTS STOPPED THE
CAR.  THAT IS OUR VIEW ON THE FACTS OF THIS PARTICULAR CASE.  WHEN THE
OFFICERS INTERRUPTED THE TWO MEN AND RESTRICTED THEIR LIBERTY OF
MOVEMENT, THE ARREST, FOR PURPOSES OF THIS CASE, WAS COMPLETE.  IT IS,
THEREFORE, NECESSARY TO DETERMINE WHETHER AT OR BEFORE THAT TIME THEY
HAD REASONABLE CAUSE TO BELIEVE THAT A CRIME HAD BEEN COMMITTED.  THE
FACT THAT AFTERWARDS CONTRABAND WAS DISCOVERED IS NOT ENOUGH.  AN
ARREST IS NOT JUSTIFIED BY WHAT THE SUBSEQUENT SEARCH DISCLOSES, AS
JOHNSON V. UNITED STATES, SUPRA, HOLDS. 

IT IS TRUE THAT A FEDERAL CRIME HAD BEEN COMMITTED AT A TERMINAL IN
THE NEIGHBORHOOD, WHISKY HAVING BEEN STOLEN FROM AN INTERSTATE
SHIPMENT.  PETITIONER'S FRIEND, PIEROTTI, HAD BEEN SUSPECTED OF SOME
IMPLICATION IN SOME INTERSTATE SHIPMENTS, AS WE HAVE SAID.  BUT AS THIS
RECORD STANDS, WHAT THOSE SHIPMENTS WERE AND THE MANNER IN WHICH HE WAS
IMPLICATED REMAIN UNEXPLAINED AND UNDEFINED.  THE RUMOR ABOUT HIM IS
THEREFORE PRACTICALLY MEANINGLESS.  ON THE RECORD THERE WAS FAR FROM
ENOUGH EVIDENCE AGAINST HIM TO JUSTIFY A MAGISTRATE IN ISSUING A
WARRANT.  SO FAR AS THE RECORD SHOWS, PETITIONER HAD NOT EVEN BEEN
SUSPECTED OF CRIMINAL ACTIVITY PRIOR TO THIS TIME.  RIDING IN THE CAR,
STOPPING IN AN ALLEY, PICKING UP PACKAGES, DRIVING AWAY - THESE WERE
ALL ACTS THAT WERE OUTWARDLY INNOCENT.  THEIR MOVEMENTS IN THE CAR HAD
NO MARK OF FLEEING MEN OR MEN ACTING FURTIVELY.  THE CASE MIGHT BE
DIFFERENT IF THE PACKAGES HAD BEEN TAKEN FROM A TERMINAL OR FROM AN
INTERSTATE TRUCKING PLATFORM.  BUT THEY WERE NOT.  AS WE HAVE SAID, THE
ALLEY WHERE THE PACKAGES WERE PICKED UP WAS IN A RESIDENTIAL SECTION. 
THE FACT THAT PACKAGES HAVE BEEN STOLEN DOES NOT MAKE EVERY MAN WHO
CARRIES A PACKAGE SUBJECT TO ARREST NOR THE PACKAGE SUBJECT TO
SEIZURE.  THE POLICE MUST HAVE REASONABLE GROUNDS TO BELIEVE THAT THE
PARTICULAR PACKAGE CARRIED BY THE CITIZEN IS CONTRABAND.  ITS SHAPE AND
DESIGN MIGHT AT TIMES BE ADEQUATE.  THE WEIGHT OF IT AND THE MANNER IN
WHICH IT IS CARRIED MIGHT AT TIMES BE ENOUGH.  BUT THERE WAS NOTHING TO
INDICATE THAT THE CARTONS HERE IN ISSUE PROBABLY CONTAINED LIQUOR.  THE
FACT THAT THEY CONTAINED OTHER CONTRABAND APPEARED ONLY SOME HOURS
AFTER THE ARREST.  WHAT TRANSPIRED AT OR AFTER THE TIME THE CAR WAS
STOPPED BY THE OFFICERS IS, AS WE HAVE SAID, IRRELEVANT TO THE NARROW
ISSUE BEFORE US.  TO REPEAT, AN ARREST IS NOT JUSTIFIED BY WHAT THE
SUBSEQUENT SEARCH DISCLOSES.  UNDER OUR SYSTEM SUSPICION IS NOT ENOUGH
FOR AN OFFICER TO LAY HANDS ON A CITIZEN.  IT IS BETTER, SO THE FOURTH
AMENDMENT TEACHES, THAT THE GUILTY SOMETIMES GO FREE THAN THAT CITIZENS
BE SUBJECT TO EASY ARREST. 

THE FACT THAT THE SUSPECTS WERE IN AN AUTOMOBILE IS NOT ENOUGH. 
CARROLL V. UNITED STATES, SUPRA, LIBERALIZED THE RULE GOVERNING
SEARCHES WHEN A MOVING VEHICLE IS INVOLVED.  BUT THAT DECISION MERELY
RELAXED THE REQUIREMENTS FOR A WARRANT ON GROUNDS OF PRACTICALITY.  IT
DID NOT DISPENSE WITH THE NEED FOR PROBABLE CAUSE.  REVERSED. 

FN1  DECLARED ILLEGAL BY THE HOUSE OF COMMONS IN 1766.  16 HANSARD,
PARL.  HIST.  ENG. 207. 

FN2  QUINCY'S MASS. REP. 1761-1772, APPENDIX, P. 469. 

FN3  FRISBIE V. BUTLER, KIRBY'S REP. (CONN.) 1785-1788, P. 213. 

FN4  CONNER V. COMMONWEALTH, 3 BINN (PA.)  38; GRUMON V. RAYMOND, 1
CONN. 40; COMMONWEALTH V. DANA, 2 MET.  (MASS.)  329. 

FN5  CONNER V. COMMONWEALTH, SUPRA, NOTE 4, AT 43. 

FN6  HOGAN AND SNEE, THE MCNABB-MALLORY RULE:  ITS RISE, RATIONALE
AND RESCUE, 47 GEO. L.J. 1, 22. 

UNIFORM CRIME REPORTS FOR THE UNITED STATES, COMPILED BY THE FEDERAL
BUREAU OF INVESTIGATION (VOL. XXVIII, NO. 1, SEMIANNUAL BULL., 1957),
PP. 64, 65, SHOWS 1956 ARREST STATISTICS FOR 1,025 CITIES IN THE UNITED
STATES, INCLUDING 26 CITIES OVER 250,000 POPULATION AND 458 CITIES
UNDER 10,000 POPULATION. 

THE REPORT STATES THAT 111,274 WERE ARRESTED ON SUSPICION (BUT NOT IN
CONNECTION WITH ANY SPECIFIC OFFENSE) AND SUBSEQUENTLY RELEASED WITHOUT
PROSECUTION.  THIS WAS AT THE RATE OF 280.4 PER 100,000 INHABITANTS. 

THE GRAND TOTAL OF PERSONS ARRESTED - BOTH FOR A SPECIFIC OFFENSE
(BUT EXCLUDING TRAFFIC OFFENSES) AND ON SUSPICION ALONE - AND RELEASED
WITHOUT BEING HELD FOR PROSECUTION WAS 264,601.  THIS WAS AT THE RATE
OF 666.7 PER 100,000 INHABITANTS. 

FN7  AN ALTERNATIVE THEORY THAT THE ARREST TOOK PLACE AT A SUBSEQUENT
TIME WAS DISCUSSED BY THE GOVERNMENT ONLY TO MAKE CLEAR THAT IT WOULD
PRESS THAT POSITION ON THE FACTS OF ANOTHER CASE NOW PENDING HERE, NO.
52, RIOS V. UNITED STATES. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE CLARK, WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THE COURT DECIDES THIS CASE ON THE NARROW GROUND THAT THE ARREST TOOK
PLACE AT THE MOMENT THE FEDERAL BUREAU OF INVESTIGATION AGENTS STOPPED
THE CAR IN WHICH PETITIONER WAS RIDING AND AT THAT TIME PROBABLE CAUSE
FOR IT DID NOT EXIST.  WHILE THE GOVERNMENT, UNNECESSARILY IT SEEMS TO
ME, CONCEDED THAT THE ARREST WAS MADE AT THE TIME THE CAR WAS STOPPED,
THIS COURT IS NOT BOUND BY THE GOVERNMENT'S MISTAKES.* 

*IT MAY BE THAT THE GOVERNMENT IS DOING SOME WISHFUL THINKING IN
REGARD TO THE RELAXATION OF THE STANDARDS INCIDENT TO THE "PROBABLE
CAUSE" REQUIREMENT BY MAKING THIS A TEST CASE.  WE SHOULD NOT LEND
OURSELVES TO SUCH INDULGENCE. 

THE RECORD SHOWS BEYOND DISPUTE THAT THE AGENTS HAD RECEIVED
INFORMATION FROM CO-DEFENDANT PIEROTTI'S EMPLOYER IMPLICATING PIEROTTI
WITH INTERSTATE SHIPMENTS.  THE AGENTS BEGAN A SURVEILLANCE OF
PETITIONER AND PIEROTTI AFTER RECOGNIZING THEM AS THEY CAME OUT OF A
BAR.  LATER THE AGENTS OBSERVED THEM LOADING CARTONS INTO AN AUTOMOBILE
FROM A GANGWAY UP AN ALLEY IN CHICAGO.  THE AGENTS HAD BEEN TRAILING
THEM, AND AFTER IT APPEARED THAT THEY HAD DELIVERED THE FIRST LOAD OF
CARTONS, THE SUSPECTS RETURNED TO THE SAME PLATFORM BY A CIRCUITOUS
ROUTE THROUGH STREETS AND ALLEYS.  THE AGENTS THEN SAW PETITIONER LOAD
ANOTHER SET OF CARTONS INTO THE CAR AND DRIVE OFF WITH THE SAME.  A FEW
MINUTES LATER THE AGENTS STOPPED THE CAR, ALIGHTED FROM THEIR OWN CAR,
AND APPROACHED THE PETITIONER.  AS THEY DID SO, PETITIONER WAS
OVERHEARD TO SAY:  "HOLD IT; IT IS THE G'S," AND "TELL HIM HE (YOU)
JUST PICKED ME UP."  SINCE THE AGENTS HAD ACTUALLY SEEN THE TWO
SUSPECTS TOGETHER FOR SEVERAL HOURS, IT WAS APPARENT TO THEM THAT THE
STATEMENT WAS UNTRUE.  UPON BEING QUESTIONED, THE DEFENDANTS STATED
THAT THEY HAD BORROWED THE CAR FROM A FRIEND.  DURING THE QUESTIONING
AND AFTER PETITIONER HAD STEPPED OUT OF THE CAR ONE OF THE AGENTS
HAPPENED TO LOOK THROUGH THE DOOR OF THE CAR WHICH PETITIONER HAD LEFT
OPEN AND SAW THREE CARTONS STACKED UP INSIDE WHICH RESEMBLED THOSE
PETITIONER HAD JUST LOADED INTO THE CAR FROM THE GANGWAY.  THE AGENT
SAW THAT THE CARTONS BORE ADMIRAL SHIPPING LABELS AND WERE ADDRESSED TO
A COMPANY IN CINCINNATI, OHIO.  UPON FURTHER QUESTIONING, THE AGENT WAS
TOLD THAT THE CARTONS WERE IN THE CAR WHEN THE DEFENDANTS BORROWED IT.
KNOWING THIS TO BE UNTRUE, THE AGENTS THEN SEARCHED THE CAR, ARRESTED
PETITIONER AND HIS COMPANION, AND SEIZED THE CARTONS. 

THE COURT SEEMS TO SAY THAT THE MERE STOPPING OF THE CAR AMOUNTED TO
AN ARREST OF THE PETITIONER.  I CANNOT AGREE.  THE SUSPICIOUS
ACTIVITIES OF THE PETITIONER DURING THE SOMEWHAT PROLONGED SURVEILLANCE
BY THE AGENTS WARRANTED THE STOPPING OF THE CAR.  THE SIGHTING OF THE
CARTONS WITH THEIR INTERSTATE LABELS IN THE CAR GAVE THE AGENTS
REASONABLE GROUND TO BELIEVE THAT A CRIME WAS IN THE COURSE OF ITS
COMMISSION IN THEIR VERY PRESENCE.  THE SEARCH OF THE CAR AND THE
SUBSEQUENT ARREST WERE THEREFORE LAWFUL AND THE MOTION TO SUPPRESS WAS
PROPERLY OVERRULED. 

IN MY VIEW, THE TIME AT WHICH THE AGENTS WERE REQUIRED TO HAVE
REASONABLE GROUNDS TO BELIEVE THAT PETITIONER WAS COMMITTING A FELONY
WAS WHEN THEY BEGAN THE SEARCH OF THE AUTOMOBILE, WHICH WAS AFTER THEY
HAD SEEN THE CARTONS WITH INTERSTATE LABELS IN THE CAR.  THE EARLIER
EVENTS CERTAINLY DISCLOSED AMPLE GROUNDS TO JUSTIFY THE FOLLOWING OF
THE CAR, THE SUBSEQUENT STOPPING THEREOF, AND THE QUESTIONING OF
PETITIONER BY THE AGENTS.  THIS INTERROGATION, TOGETHER WITH THE
SIGHTING OF THE CARTONS AND THE LABELS, GAVE THE AGENTS INDISPUTABLE
PROBABLE CAUSE FOR THE SEARCH AND ARREST. 

WHEN AN INVESTIGATION PROCEEDS TO THE POINT WHERE AN AGENT HAS
REASONABLE GROUNDS TO BELIEVE THAT AN OFFENSE IS BEING COMMITTED IN HIS
PRESENCE, HE IS OBLIGATED TO PROCEED TO MAKE SUCH SEARCHES, SEIZURES,
AND ARRESTS AS THE CIRCUMSTANCES REQUIRE.  IT IS ONLY BY SUCH ALERTNESS
THAT CRIME IS DISCOVERED, INTERRUPTED, PREVENTED, AND PUNISHED.  WE
SHOULD NOT PLACE ADDITIONAL BURDENS ON LAW ENFORCEMENT AGENCIES. 

I WOULD AFFIRM THE JUDGMENTS ON THE RATIONALE OF BRINEGAR V. UNITED
STATES, 338 U.S. 160 (1949), AND CARROLL V. UNITED STATES, 267 U.S. 132
(1925). 
..END :





















SENTILLES V. INTER-CARIBBEAN SHIPPING CORP. 361 U.S. 107 


NO. 6.  ARGUED OCTOBER 19, 1959 - DECIDED NOVEMBER 23, 1959 - 256 F.2D
156, REVERSED. 


IN THIS SUIT BY A SEAMAN UNDER THE JONES ACT AND THE GENERAL MARITIME
LAW TO RECOVER FROM A SHIPOWNER DAMAGES FOR A SERIOUS TUBERCULAR
ILLNESS ALLEGED TO HAVE BEEN CAUSED BY AN ACCIDENT AT SEA FOR WHICH THE
SHIPOWNER WAS LIABLE, NO MEDICAL WITNESS TESTIFIED THAT THE ACCIDENT IN
FACT CAUSED THE ILLNESS.  HELD:  NEVERTHELESS, THE EVIDENCE WAS
SUFFICIENT TO SUPPORT THE JURY'S CONCLUSION THAT THE ILLNESS WAS CAUSED
BY THE ACCIDENT, AND THE COURT OF APPEALS ERRED IN REVERSING A JUDGMENT
FOR THE SEAMAN.  PP. 107-110. 

(A)  THE LACK OF MEDICAL UNANIMITY AS TO THE RESPECTIVE LIKELIHOOD OF
THE POTENTIAL CAUSES OF THE ILLNESS, AND THE FACT THAT THE OTHER
POTENTIAL CAUSES WERE NOT CONCLUSIVELY NEGATED BY THE PROOFS, DID NOT
BAR THE JURY FROM DRAWING THE INFERENCE WHICH IT DID.  P. 109. 

(B)  THE USE OF A PARTICULAR FORM OF WORDS BY THE MEDICAL WITNESSES
IS NOT DETERMINATIVE, AND THE JURY WAS ENTITLED TO TAKE ALL THE
CIRCUMSTANCES, INCLUDING THE MEDICAL TESTIMONY, INTO CONSIDERATION. 
PP. 109-110. 

SENTILLES V. INTER-CARIBBEAN SHIPPING CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER BROUGHT THIS SUIT AGAINST THE RESPONDENT TO RECOVER
DAMAGES SUSTAINED BY HIM ALLEGEDLY AS A CONSEQUENCE OF A SHIPBOARD
ACCIDENT WHILE SERVING AS A CREW-MEMBER ON THE RESPONDENT'S VESSEL IN
THE CARIBBEAN.  AS THE VESSEL ENCOUNTERED A HEAVY SEA, PETITIONER WAS
PITCHED INTO THE AIR AND FELL  BACK TO THE DECK, WHERE, UPON LANDING, A
WAVE WASHED HIM A CONSIDERABLE DISTANCE.  SHORTLY AFTER THE ACCIDENT,
THE PETITIONER BECAME QUITE ILL AND WAS HOSPITALIZED AND TREATED FOR A
SERIOUS CASE OF TUBERCULOSIS.  THE RESPONDENT'S LIABILITY FOR THE
ACCIDENT WAS PREDICATED ON FAULT UNDER THE JONES ACT, 41 STAT. 1007, 46
U.S.C. SEC. 688, AND ALTERNATIVELY ON BREACH OF THE MARITIME DUTY TO
FURNISH A SEAWORTHY VESSEL.  THE PETITIONER'S THEORY WAS THAT THE
ACCIDENT ACTIVATED OR AGGRAVATED A PREVIOUSLY LATENT TUBERCULAR
CONDITION.  (FN1)  THE CASE WAS SUBMITTED TO A JURY IN THE DISTRICT
COURT, WHERE A VERDICT WAS RETURNED FOR THE PETITIONER, AND JUDGMENT
ENTERED THEREON.  IN THE COURT OF APPEALS, THE RESPONDENT DID NOT ARGUE
THAT THE JURY COULD NOT HAVE WITH REASON FOUND IT LIABLE FOR THE
ACCIDENT, BUT CONTENDED SOLELY THAT THE EVIDENCE DID NOT JUSTIFY THE
JURY'S CONCLUSION THAT THE ACCIDENT CAUSED THE SERIOUS ILLNESS THAT
FOLLOWED IT. THE COURT OF APPEALS AGREED WITH THE RESPONDENT'S
CONTENTION AND REVERSED, 256 F.2D 156.  WE GRANTED CERTIORARI ON A
PETITION IN WHICH IT WAS ASSERTED THAT THE COURT OF APPEALS HAD APPLIED
AN IMPROPER STANDARD IN REVIEWING THE MEDICAL EVIDENCE AND IN EXAMINING
THE JUDGMENT RENDERED ON THE JURY'S VERDICT.  359 U.S. 923. 

THERE WAS EVIDENCE THAT PETITIONER (WHOSE MEDICAL HISTORY WAS AN
ACTIVE ONE) HAD BEEN EXAMINED SEVERAL TIMES BY HIS REGULAR PHYSICIAN IN
THE YEAR PRECEDING THE ACCIDENT, AS RECENTLY AS TWO MONTHS BEFORE IT,
WITH NO APPEARANCE OF TUBERCULOSIS BEING THEN NOTED.  DURING THE
PETITIONER'S ACUTE TUBERCULOSIS SUBSEQUENT TO THE ACCIDENT, A
SPECIALIST RE-EXAMINED X-RAY PICTURES TAKEN IN THE YEARS PRECEDING THE
ACCIDENT, AND CONCLUDED THAT THEY DID IN FACT REVEAL A PULMONARY
LESION, AT FIRST INVOLVING A "SMALL SCARRED INACTIVE AREA."  "IN
RETROSPECT," THE SPECIALIST FELT THAT THE LESION HAD BEEN TUBERCULAR. 
IN RESPONSE TO A HYPOTHETICAL QUESTION AS TO THE EFFECT OF AN ACCIDENT
LIKE PETITIONER'S ON THE AGGRAVATION OR ACTIVATION OF A PRE-EXISTING,
DORMANT TUBERCULAR CONDITION, THE SPECIALIST GAVE AN OPINION THAT
"ACUTE DISSEMINATION OF THE TUBERCULOSIS" MIGHT BE A CONSEQUENCE OF THE
ACCIDENT.  ANOTHER SPECIALIST, WHO HAD TREATED PETITIONER DURING HIS
HOSPITALIZATION AFTER THE ACCIDENT, POSITED THE TRAUMA AND PETITIONER'S
PRE-EXISTING DIABETIC CONDITION AS THE MOST LIKELY CAUSES OF THE
AGGRAVATION OF THE TUBERCULOSIS, THOUGH HE WAS NOT ABLE TO STATE "WHICH
OF THE TWO IT IS MORE LIKELY WAS RESPONSIBLE IN THIS INSTANCE." 
ANOTHER MEDICAL EXPERT, WHO HAD NOT PERSONALLY EXAMINED PETITIONER,
WHEN QUESTIONED HYPOTHETICALLY, WAS OF OPINION THAT THE ACCIDENT
"PROBABLY AGGRAVATED HIS CONDITION," THOUGH HE WOULD NOT SAY
DEFINITELY:  "WE DON'T EVER SELECT ONE ITEM AND SAY THAT IS THE CAUSE
OF ANY PARTICULAR AGGRAVATION." 

THE JURY'S POWER TO DRAW THE INFERENCE THAT THE AGGRAVATION OF
PETITIONER'S TUBERCULAR CONDITION, EVIDENT SO SHORTLY AFTER THE
ACCIDENT, WAS IN FACT CAUSED BY THAT ACCIDENT, WAS NOT IMPAIRED BY THE
FAILURE OF ANY MEDICAL WITNESS TO TESTIFY THAT IT WAS IN FACT THE
CAUSE.  NEITHER CAN IT BE IMPAIRED BY THE LACK OF MEDICAL UNANIMITY AS
TO THE RESPECTIVE LIKELIHOOD OF THE POTENTIAL CAUSES OF THE
AGGRAVATION, OR BY THE FACT THAT OTHER POTENTIAL CAUSES OF THE
AGGRAVATION EXISTED AND WERE NOT CONCLUSIVELY NEGATED BY THE PROOFS. 
THE MATTER DOES NOT TURN ON THE USE OF A PARTICULAR FORM OF WORDS BY
THE PHYSICIANS IN GIVING THEIR TESTIMONY.  THE MEMBERS OF THE JURY, NOT
THE MEDICAL WITNESSES, WERE SWORN TO MAKE A LEGAL DETERMINATION OF THE
QUESTION OF CAUSATION.  (FN2)  THEY WERE ENTITLED TO TAKE ALL THE
CIRCUMSTANCES, INCLUDING THE MEDICAL TESTIMONY, INTO CONSIDERATION. 
SEE SULLIVAN V. BOSTON ELEVATED R. CO., 185 MASS. 602, 71 N.E. 90;
MIAMI COAL CO. V. LUCE, 76 IND. APP. 245, 131 N.E. 824.  (FN3)  THOUGH
THIS CASE INVOLVES A MEDICAL ISSUE, IT IS NO EXCEPTION TO THE
ADMONITION THAT, "IT IS NOT THE FUNCTION OF A COURT TO SEARCH THE
RECORD FOR CONFLICTING CIRCUMSTANTIAL EVIDENCE IN ORDER TO TAKE THE
CASE AWAY FROM THE JURY ON A THEORY THAT THE PROOF GIVES EQUAL SUPPORT
TO INCONSISTENT AND UNCERTAIN INFERENCES.  THE FOCAL POINT OF JUDICIAL
REVIEW IS THE REASONABLENESS OF THE PARTICULAR INFERENCE OR CONCLUSION
DRAWN BY THE JURY  ...  .  THE VERY ESSENCE OF ITS FUNCTION IS TO
SELECT FROM AMONG CONFLICTING INFERENCES AND CONCLUSIONS THAT WHICH IT
CONSIDERS MOST REASONABLE  ...  .  COURTS ARE NOT FREE TO REWEIGH THE
EVIDENCE AND SET ASIDE THE JURY VERDICT MERELY BECAUSE THE JURY COULD
HAVE DRAWN DIFFERENT INFERENCES OR CONCLUSIONS OR BECAUSE JUDGES FEEL
THAT OTHER RESULTS ARE MORE REASONABLE."  TENNANT V. PEORIA & PEKIN
UNION R. CO., 321 U.S. 29, 35.  THE PROOFS HERE JUSTIFIED WITH REASON
THE CONCLUSION OF THE JURY THAT THE ACCIDENT CAUSED THE PETITIONER'S
SERIOUS SUBSEQUENT ILLNESS.  SEE ROGERS V. MISSOURI PACIFIC R. CO., 352
U.S. 500.  REVERSED. 

FN1  MAINTENANCE AND CURE IN RESPECT OF THE ILLNESS WERE ALSO
CLAIMED; THIS WAS VIEWED AS PRESENTING A CAUSATION PROBLEM SIMILAR TO
THAT POSED BY THE CLAIM FOR INDEMNITY DAMAGES. 

FN2  FOR A DISCUSSION OF THE RELUCTANCE OF MEDICAL OPINION TO ASSIGN
TRAUMA AS THE CAUSE OF DISEASE, AND OF THE VARYING MEDICAL AND LEGAL
CONCEPTS OF CAUSATION, SEE SMALL, GAFFING AT A THING CALLED CAUSE:
MEDICO-LEGAL CONFLICTS IN THE CONCEPT OF CAUSATION, 31 TEX. L. REV.
630. 

FN3  THE MEDICAL TESTIMONY IN THE CASE LAST CITED MOVED THE COURT TO
SAY:  "INDEED, IF IT WERE NOT FOR THE SAVING GRACE OF WHAT WE CALL
COMMON SENSE, JUSTICE WOULD BE DEFEATED IN ALMOST EVERY CASE WHERE
OPINION EVIDENCE IS ADMITTED."  ID., AT 249, 131 N.E., AT 826. 

MR. JUSTICE WHITTAKER, FINDING IN THE RECORD DIRECT MEDICAL TESTIMONY
EXPRESSING THE OPINION THAT PETITIONER'S LATENT TUBERCULAR CONDITION
ACTUALLY WAS ACTIVATED BY THE TRAUMA COMPLAINED OF, CONCURS. 

MR. JUSTICE STEWART, CONCURRING. 

CASES LIKE THIS, I AM FIRMLY CONVINCED, DO NOT BELONG IN THIS COURT. 
TO REVIEW INDIVIDUALIZED PERSONAL INJURY CASES, IN WHICH THE SOLE ISSUE
IS SUFFICIENCY OF THE EVIDENCE, SEEMS TO ME NOT ONLY TO DISREGARD THE
COURT'S PROPER FUNCTION, BUT ALSO TO DEFLECT THE COURT'S ENERGIES FROM
THE MASS OF IMPORTANT AND DIFFICULT BUSINESS PROPERLY HERE.  ALL THIS
HAS BEEN ELABORATED IN EXTENSO BY OTHERS, AND THERE IS NO POINT IN
REPEATING OR PARAPHRASING THEIR WORDS.  SUFFICE IT TO NOTE THAT I AGREE
WITH WHAT THEY HAVE SAID.  SEE, E.G., ROGERS V. MISSOURI PACIFIC R.
CO., 352 U.S. 500, 524 (DISSENTING OPINION); DICK V. NEW YORK LIFE INS.
CO., 359 U.S. 437, 447 (DISSENTING OPINION). 

YET UNDER OUR RULE, WHEN FOUR MEMBERS OF THE COURT VOTE TO GRANT A
PETITION FOR CERTIORARI, THE CASE IS TAKEN.  IF THIS RULE IS NOT TO BE
FRUSTRATED, I CAN, AS PRESENTLY ADVISED, SEE NO ESCAPE FROM THE DUTY OF
CONSIDERING A CASE BROUGHT HERE ON THE MERITS, UNLESS CONSIDERATIONS
APPEAR WHICH WERE NOT APPREHENDED AT THE TIME CERTIORARI WAS GRANTED. 
IN SHORT, ON THIS SCORE I AGREE WITH THE VIEWS EXPRESSED BY MR. JUSTICE
HARLAN IN ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500, 559
(DISSENTING OPINION).  SEE MR. CHIEF JUSTICE STONE'S CONCURRING OPINION
IN BAILEY V. CENTRAL VERMONT R. CO., 319 U.S. 350, AT 358. 

UPON AN INDEPENDENT REVIEW OF THE RECORD IN THIS CASE, I CONCUR IN
THE RESULT. 

MR. JUSTICE HARLAN CONCURS IN THIS OPINION. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

"WE DO NOT GRANT A CERTIORARI TO REVIEW EVIDENCE AND DISCUSS SPECIFIC
FACTS."  UNITED STATES V. JOHNSTON, 268 U.S. 220, 227.  THUS MR.
JUSTICE HOLMES, SPEAKING FOR A UNANIMOUS COURT THIRTY-FIVE YEARS AGO,
SUMMARIZED THE PRACTICE OF THE COURT IN ABSTAINING FROM EXERCISING ITS
CERTIORARI JURISDICTION FOR THE PURPOSE OF REVIEWING FACTS AND WEIGHING
EVIDENCE IN RELATION TO THEM.  THIS PRACTICE OBVIOUSLY DERIVED FROM THE
EVARTS ACT OF 1891, BY WHICH CONGRESS ESTABLISHED INTERMEDIATE COURTS
OF APPEALS TO FREE THIS COURT FROM REVIEWING THE GREAT MASS OF FEDERAL
LITIGATION IN ORDER TO ENABLE THE NATION'S ULTIMATE TRIBUNAL ADEQUATELY
TO DISCHARGE ITS RESPONSIBILITY FOR THE WISE ADJUDICATION OF CASES
"INVOLVING PRINCIPLES THE SETTLEMENT OF WHICH IS OF IMPORTANCE TO THE
PUBLIC AS DISTINGUISHED FROM THAT OF THE PARTIES," LAYNE & BOWLER CORP.
V. WESTERN WELL WORKS, INC., 261 U.S. 387, 393.  SINCE MR. CHIEF
JUSTICE TAFT ANNOUNCED THIS FOR THE COURT IN 1923, CASES OF OBVIOUS
PUBLIC IMPORTANCE DEMANDING THE COURT'S ATTENTION HAVE INCREASED IN
NUMBER AND DIFFICULTY.  THE PRACTICE OF NOT TAKING CASES TURNING SOLELY
ON THE EVALUATION OF EVIDENCE HAS BEEN CONSISTENTLY ADHERED TO, BARRING
AN OCCASIONAL SPORT LIKE DICK V. NEW YORK LIFE INSURANCE CO., 359 U.S.
437, EXCEPT IN THE SPECIAL CLASS OF CASES ARISING UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT AND ITS TWIN, THE JONES ACT.  THE FLUCTUATING
INTEREST IN THIS SPECIAL CLASS OF CASES BY THE NECESSARY NUMBER OF
JUSTICES FOR GRANTING CERTIORARI, FIRST ON BEHALF OF EMPLOYERS, SEE
FRANKFURTER AND LANDIS, THE BUSINESS OF THE SUPREME COURT (1928), 207
209, AND MORE RECENTLY ON BEHALF OF EMPLOYEES, HAS DISREGARDED THE
NORMAL PRACTICE. 

THE ORAL ARGUMENT OVERWHELMINGLY CONFIRMED WHAT THE PETITION HAD
ALREADY MADE CLEAR, THAT THIS IS THE KIND OF CASE WHICH, IN THE
LANGUAGE OF MY BROTHER STEWART, DOES NOT "BELONG IN THIS COURT."  TO
ENTERTAIN THE CASE MERELY BECAUSE ARGUMENT HAS BEEN HAD DOES NOT LESSEN
THE DISREGARD OF THE COURT'S PRACTICE, FORMULATED IN RULE 19.  THE
COURT HAS IN SCORES OF CASES DISMISSED THE WRIT OF CERTIORARI EVEN
AFTER ORAL ARGUMENT, WHEN THE TRUE BASIS FOR A CERTIORARI WAS LACKING. 
EVEN IN CRIMINAL CASES INVOLVING SENTENCES OF LIFE IMPRISONMENT THIS
PRACTICE HAS BEEN FOLLOWED.  SEE TRIPLETT V. IOWA, 357 U.S. 217; JOSEPH
V. INDIANA, 359 U.S. 117.  AGAIN TO QUOTE MR. CHIEF JUSTICE TAFT IN
LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, INC., SUPRA, AT 393, "IT IS
VERY IMPORTANT THAT WE BE CONSISTENT IN NOT GRANTING THE WRIT OF
CERTIORARI ...  ."  AS A GENERAL PRACTICE THE COURT DOES NOT REVIEW
CASES INVOLVING MERELY INDIVIDUALIZED CIRCUMSTANCES NOT UNLIKE THE TYPE
OF FACTUAL SITUATIONS ARISING IN THE APPLICATION OF THE FEDERAL
EMPLOYERS' LIABILITY ACT AND THE JONES ACT.  SINCE THIS CASE DOES NOT
"BELONG IN THIS COURT," TO HAVE BROUGHT IT HERE WAS AN UNDUE EXERCISE
OF JUDICIAL DISCRETION.  ACCORDINGLY, I WOULD DISMISS THE WRIT AS
IMPROVIDENTLY GRANTED.  SEE MY OPINION IN ROGERS V. MISSOURI PACIFIC R.
CO., 352 U.S. 500, 524. 
..END :





















SCHWEGMANN BROTHERS GIANT SUPER MARKETS V. MCCRORY 361 U.S. 114 


NO. 423.  DECIDED NOVEMBER 23, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  237 LA. 768, 112 SO.
2D 606. 


SCHWEGMANN BROTHERS GIANT SUPER MARKETS V. MCCRORY, COMMISSIONER OF
AGRICULTURE AND IMMIGRATION OF LOUISIANA, ET AL. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















J. ARON & CO. V. MISSISSIPPI SHIPPING CO. 361 U.S. 115 


NO. 450.  DECIDED NOVEMBER 23, 1959.  - REPORTED BELOW:  270 F.2D 345. 


CONSENT JUDGMENT HAVING BEEN ENTERED BY THE DISTRICT COURT SINCE
JUDGMENT OF REVERSAL BY COURT OF APPEALS, CERTIORARI GRANTED, JUDGMENT
OF THE COURT OF APPEALS VACATED AND CASE REMANDED. 

J. ARON & COMPANY, INC., V. MISSISSIPPI SHIPPING COMPANY, INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM.* 

*REPORTER'S NOTE:  THIS DECISION PER CURIAM IS REPORTED AS AMENDED BY
AN ORDER ENTERED DECEMBER 14, 1959. 

IT APPEARING FROM THE PETITIONER'S SUGGESTION OF MOOTNESS THAT,
SUBSEQUENT TO THE JUDGMENT OF REVERSAL BY THE COURT OF APPEALS OF THE
ORIGINAL INTERLOCUTORY DECREE OF THE DISTRICT COURT AND THE FILING OF
THE PETITION FOR WRIT OF CERTIORARI, A CONSENT JUDGMENT FOR DAMAGES AND
COSTS WAS ENTERED BY THE DISTRICT COURT, THE PETITION FOR WRIT OF
CERTIORARI IS GRANTED, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED
AND THE CASE IS REMANDED TO THE COURT OF APPEALS WITH DIRECTIONS TO
DISMISS THE APPEAL AS MOOT. 
..END :



UNITED STATES V. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS 361 U.S.
116 


NO. 24.  DECIDED NOVEMBER 23, 1959 - CERTIORARI GRANTED AND JUDGMENT
REVERSED.  - REPORTED BELOW: 260 F.2D 884. 


UNITED STATES V. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED.   UNITED STATES V. SEABOARD AIR LINE R.
CO., ANTE, P. 78. 
..END :














LAPORTE V. NEW YORK 361 U.S. 116 


NO. 425.  DECIDED NOVEMBER 23, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  6 N.Y.2D 1, 159 N.E.
540. 


LAPORTE ET AL. V. NEW YORK. 

APPEAL FROM THE COURT OF CLAIMS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















MURPHY V. COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK 361 U.S.
117 


NO. 419.  DECIDED NOVEMBER 23, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  4 N.Y.2D 140, 149 N.E.2D 705. 


MURPHY V. COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















BREATON V. UNITED STATES 361 U.S. 117 


NO. 54, MISC.  DECIDED NOVEMBER 23, 1959. 


CERTIORARI GRANTED; JUDGMENT VACATED AND CASE REMANDED FOR
CONSIDERATION IN LIGHT OF PUBLIC LAW 86-320, 73 STAT. 590. 

BREATON V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER CONSIDERATION IN THE
LIGHT OF PUBLIC LAW 86-320, APPROVED SEPTEMBER 21, 1959, 73 STAT.
590. 
..END :










COMMISSIONER OF INTERNAL REVENUE V. ACKER 361 U.S. 87 


NO. 13.  ARGUED OCTOBER 19, 1959 - DECIDED NOVEMBER 16, 1959 - 258 F.2D
568, AFFIRMED. 


UNDER THE INTERNAL REVENUE CODE OF 1939, THE FAILURE OF A TAXPAYER,
WITHOUT REASONABLE CAUSE, TO FILE A DECLARATION OF ESTIMATED INCOME
TAX, AS REQUIRED BY SEC. 58, SUBJECTS HIM TO THE ADDITION TO THE TAX
PRESCRIBED BY SEC. 294(D)(1)(A) FOR FAILURE TO FILE THE DECLARATION;
BUT IT DOES NOT SUBJECT HIM ALSO TO THE ADDITION TO THE TAX PRESCRIBED
BY SEC. 294(D)(2) FOR THE FILING OF A "SUBSTANTIAL UNDERESTIMATE" OF
HIS TAX.  PP. 87-94. 

COMMISSIONER OF INTERNAL REVENUE V. ACKER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER, UNDER THE INTERNAL REVENUE
CODE OF 1939, THE FAILURE OF A TAXPAYER TO FILE A DECLARATION OF
ESTIMATED INCOME TAX, AS REQUIRED BY SEC. 58, (FN1) NOT ONLY SUBJECTS
HIM TO THE ADDITION TO THE TAX PRESCRIBED BY SEC. 294(D)(1)(A) FOR
FAILURE TO FILE THE DECLARATION, BUT ALSO SUBJECTS HIM TO THE FURTHER
ADDITION TO THE TAX PRESCRIBED BY SEC. 294(D)(2) FOR THE FILING OF A
"SUBSTANTIAL UNDERESTIMATE" OF HIS TAX. 

TO MAKE AND FILE "A DECLARATION OF ESTIMATED TAX," WITHIN THE TIME
PRESCRIBED, THERE SHALL BE ADDED TO THE TAX AN AMOUNT EQUAL TO 5% OF
EACH INSTALLMENT DUE AND UNPAID, PLUS 1% OF SUCH UNPAID INSTALLMENTS
FOR EACH MONTH EXCEPT THE FIRST, NOT EXCEEDING AN AGGREGATE OF 10% OF
SUCH UNPAID INSTALLMENTS.  (FN2) 


"(2)  SUBSTANTIAL UNDERESTIMATE OF ESTIMATED TAX. 

"IF 80 PER CENTUM OF THE TAX (DETERMINED WITHOUT REGARD TO THE
CREDITS UNDER SECTIONS 32 AND 35) ...  EXCEEDS THE ESTIMATED TAX
(INCREASED BY SUCH CREDITS), THERE SHALL BE ADDED TO THE TAX AN AMOUNT
EQUAL TO SUCH EXCESS, OR EQUAL TO 6 PER CENTUM OF THE AMOUNT BY WHICH
SUCH TAX SO DETERMINED EXCEEDS THE ESTIMATED TAX SO INCREASED,
WHICHEVER IS THE LESSER  ...  ."  26 U.S.C.  (1952 ED.)  SEC. 
294(D)(2). 

UNDER THE INTERNAL REVENUE CODE OF 1939, CONTAINS THE STATEMENT THAT: 

"IN THE EVENT OF A FAILURE TO FILE THE REQUIRED DECLARATION, THE
AMOUNT OF THE ESTIMATED TAX FOR THE PURPOSES OF SEC. 294(D)(2) IS
ZERO." 

RESPONDENT, WITHOUT REASONABLE CAUSE, FAILED TO FILE A DECLARATION OF
HIS ESTIMATED INCOME TAX FOR ANY OF THE YEARS 1947 THROUGH 1950.  THE
COMMISSIONER IMPOSED AN ADDITION TO THE TAX FOR EACH OF THOSE YEARS
UNDER SEC. 294(D)(1)(A) FOR FAILURE TO FILE THE DECLARATION, AND ALSO
IMPOSED A FURTHER ADDITION TO THE TAX FOR EACH OF THOSE YEARS UNDER
SEC. 294(D)(2) FOR A "SUBSTANTIAL UNDERESTIMATE" OF THE TAX.  THE TAX
COURT SUSTAINED THE COMMISSIONER'S IMPOSITION OF BOTH ADDITIONS.  THE
COURT OF APPEALS AFFIRMED WITH RESPECT TO THE ADDITION IMPOSED FOR
FAILURE TO FILE THE DECLARATION, BUT REVERSED WITH RESPECT TO THE
ADDITION IMPOSED FOR SUBSTANTIAL UNDERESTIMATION OF THE TAX, HOLDING
THAT SEC. 294(D)(2) DOES NOT AUTHORIZE THE TREATMENT OF A TAXPAYER'S
FAILURE TO FILE A DECLARATION OF ESTIMATED TAX AS THE EQUIVALENT OF A
DECLARATION ESTIMATING NO TAX, AND THAT THE REGULATION, WHICH PURPORTS
TO DO SO, IS NOT SUPPORTED BY THE STATUTE AND IS INVALID.  258 F.2D
568.  BECAUSE OF A CONFLICT AMONG THE CIRCUITS (FN3) WE GRANTED THE
COMMISSIONER'S PETITION FOR CERTIORARI.  358 U.S. 940. 

THE FIRST AND PRIMARY QUESTION THAT WE MUST DECIDE IS WHETHER THERE
IS ANY EXPRESSED OR NECESSARILY IMPLIED PROVISION OR LANGUAGE IN SEC.
294(D)(2) WHICH AUTHORIZES THE TREATMENT OF A TAXPAYER'S FAILURE TO
FILE A DECLARATION OF ESTIMATED TAX AS, OR THE EQUIVALENT OF, A
DECLARATION ESTIMATING HIS TAX TO BE ZERO. 

WE ARE HERE CONCERNED WITH A TAXING ACT WHICH IMPOSES A PENALTY. 
(FN4)  THE LAW IS SETTLED THAT "PENAL STATUTES ARE TO BE CONSTRUED
STRICTLY," FEDERAL COMMUNICATIONS COMM'N V. AMERICAN BROADCASTING CO.,
347 U.S. 284, 296, AND THAT ONE "IS NOT TO BE SUBJECTED TO A PENALTY
UNLESS THE WORDS OF THE STATUTE PLAINLY IMPOSE IT," KEPPEL V. TIFFIN
SAVINGS BANK, 197 U.S. 356, 362.  SEE, E.G., TIFFANY V. NATIONAL BANK
OF MISSOURI, 18 WALL.  409, 410; ELLIOTT V. RAILROAD CO., 99 U.S. 573,
576. 

VIEWING SEC. 294(D)(2) IN THE LIGHT OF THIS RULE, WE FAIL TO FIND ANY
EXPRESSED OR NECESSARILY IMPLIED PROVISION OR LANGUAGE THAT PURPORTS TO
AUTHORIZE THE TREATMENT OF A TAXPAYER'S FAILURE TO FILE A DECLARATION
OF ESTIMATED TAX AS, OR THE EQUIVALENT OF, A DECLARATION ESTIMATING HIS
TAX TO BE ZERO.  THIS SECTION CONTAINS NO WORDS OR LANGUAGE TO THAT
EFFECT, AND ITS IMPLICATIONS LOOK THE OTHER WAY.  BY TWICE MENTIONING,
AND PREDICATING ITS APPLICATION UPON, "THE ESTIMATED TAX" THE SECTION
SEEMS NECESSARILY TO CONTEMPLATE, AND TO APPLY ONLY TO, CASES IN WHICH
A DECLARATION OF "THE ESTIMATED TAX" HAS BEEN MADE AND FILED.  THE FACT
THAT THE SECTION CONTAINS NO BASIS OR MEANS FOR THE COMPUTATION OF ANY
ADDITION TO THE TAX IN A CASE WHERE NO DECLARATION HAS BEEN FILED WOULD
SEEM TO SETTLE THE POINT BEYOND ALL CONTROVERSY.  IF THE SECTION HAD IN
ANY APPROPRIATE WORDS CONVEYED THE THOUGHT EXPRESSED BY THE REGULATION
IT WOULD THEREBY HAVE CLEARLY AUTHORIZED THE COMMISSIONER TO TREAT THE
TAXPAYER'S FAILURE TO FILE A DECLARATION AS THE EQUIVALENT OF A
DECLARATION ESTIMATING HIS TAX AT ZERO AND, HENCE, AS CONSTITUTING A
"SUBSTANTIAL UNDERESTIMATE" OF HIS TAX.  BUT THE SECTION CONTAINS
NOTHING TO THAT EFFECT, AND, THEREFORE, TO UPHOLD THIS ADDITION TO THE
TAX WOULD BE TO HOLD THAT IT MAY BE IMPOSED BY REGULATION, WHICH, OF
COURSE, THE LAW DOES NOT PERMIT.  UNITED STATES V. CALAMARO, 354 U.S.
351, 359; KOSHLAND V. HELVERING, 298 U.S. 441, 446-447; MANHATTAN CO.
V. COMMISSIONER, 297 U.S. 129, 134. 

THE COMMISSIONER POINTS TO THE FACT THAT BOTH THE SENATE REPORT (FN5)
WHICH ACCOMPANIED THE BILL THAT BECAME THE CURRENT TAX PAYMENT ACT OF
1943, (FN6) AND THE CONFERENCE REPORT (FN7) RELATING TO THAT BILL,
CONTAINED THE STATEMENT WHICH WAS LATER EMBODIED IN THE REGULATION.  HE
THEN ARGUES THAT BY READING SEC. 294(D)(2) IN CONNECTION WITH THAT
STATEMENT IN THOSE REPORTS IT BECOMES EVIDENT THAT CONGRESS INTENDED BY
SEC. 294(D)(2) TO TREAT THE FAILURE TO FILE A DECLARATION AS THE
EQUIVALENT OF A DECLARATION ESTIMATING NO TAX.  HE URGES US TO GIVE
EFFECT TO THE CONGRESSIONAL INTENTION WHICH HE THINKS IS THUS
DISCLOSED.  HOWEVER, THESE REPORTS PERTAINED TO THE FORERUNNER OF THE
ITSELF.  BEARING IN MIND THAT WE ARE HERE CONCERNED WITH AN ATTEMPT TO
JUSTIFY THE IMPOSITION OF A SECOND PENALTY FOR THE SAME OMISSION FOR
WHICH CONGRESS HAS SPECIFICALLY PROVIDED A SEPARATE AND VERY
SUBSTANTIAL PENALTY, WE CANNOT SAY THAT THE LEGISLATIVE HISTORY OF THE
INITIAL ENACTMENT IS SO PERSUASIVE AS TO OVERCOME THE LANGUAGE OF SEC.
294(D)(2) WHICH SEEMS CLEARLY TO CONTEMPLATE THE FILING OF AN ESTIMATE
BEFORE THERE CAN BE AN UNDERESTIMATE. 

THE COMMISSIONER NEXT ARGUES THAT THE FACT THAT CONGRESS, WITH
KNOWLEDGE OF THE REGULATION, SEVERAL TIMES AMENDED THE 1939 CODE BUT
LEFT SEC. 294(D)(2) UNCHANGED, SHOWS THAT CONGRESS APPROVED THE
REGULATION, AND THAT WE SHOULD ACCORDINGLY HOLD IT TO BE VALID.  THIS
ARGUMENT IS NOT PERSUASIVE, FOR IT MUST BE PRESUMED THAT CONGRESS ALSO
KNEW THAT THE COURTS, EXCEPT THE TAX COURT, HAD ALMOST UNIFORMLY HELD
THAT SEC. 294(D)(2) DOES NOT AUTHORIZE AN ADDITION TO THE TAX IN A CASE
WHERE NO DECLARATION HAS BEEN FILED, AND THAT THE REGULATION IS
INVALID.  (FN8)  BUT THE POINT IS IMMATERIAL, FOR CONGRESS COULD NOT
ADD TO OR EXPAND THIS STATUTE BY IMPLIEDLY APPROVING THE REGULATION. 

THESE CONSIDERATIONS COMPEL US TO CONCLUDE THAT SEC. 294(D)(2) DOES
NOT AUTHORIZE THE TREATMENT OF A TAXPAYER'S FAILURE TO FILE A
DECLARATION OF ESTIMATED TAX AS THE EQUIVALENT OF A DECLARATION
ESTIMATING HIS TAX TO BE ZERO.  THE QUESTIONED REGULATION MUST
THEREFORE BE REGARDED "AS NO MORE THAN AN ATTEMPTED ADDITION TO THE
STATUTE OF SOMETHING WHICH IS NOT THERE."  UNITED STATES V. CALAMARO,
SUPRA, 354 U.S., AT 359.  AFFIRMED. 

FN1  SECTION 58, AS AMENDED, PROVIDES, IN PERTINENT PART, THAT: 

"EVERY INDIVIDUAL  ...  SHALL, AT THE TIME PRESCRIBED IN SUBSECTION
(D), MAKE A DECLARATION OF HIS ESTIMATED TAX FOR THE TAXABLE YEAR IF
HIS GROSS INCOME FROM WAGES OR OTHER SOURCES CAN REASONABLY BE EXPECTED
TO EXCEED STATED SUMS, SHOWING THE AMOUNT WHICH HE ESTIMATES AS THE
AMOUNT OF TAX UNDER THIS CHAPTER FOR THE TAXABLE YEAR, WITHOUT REGARD
TO ANY CREDITS UNDER SECTIONS 32 AND 35 FOR TAXES WITHHELD AT SOURCE
...  ; THE AMOUNT WHICH HE ESTIMATES AS SUCH CREDITS  ...  ; AND THAT
THE EXCESS OF THE ESTIMATED TAX OVER THE ESTIMATED CREDITS SHALL BE
CONSIDERED THE ESTIMATED TAX FOR THE TAXABLE YEAR."  26 U.S.C. (1952
ED.)  SEC.  58. 

FN2  SECTION 294(D)(1)(A), AS AMENDED, PROVIDES, IN PERTINENT PART,
THAT: 

"(A)  FAILURE TO FILE DECLARATION. 

"IN THE CASE OF A FAILURE TO MAKE AND FILE A DECLARATION OF ESTIMATED
TAX WITHIN THE TIME PRESCRIBED  ...  THERE SHALL BE ADDED TO THE TAX 5
PER CENTUM OF EACH INSTALLMENT DUE BUT UNPAID, AND IN ADDITION, WITH
RESPECT TO EACH SUCH INSTALLMENT DUE BUT UNPAID, 1 PER CENTUM OF THE
UNPAID AMOUNT THEREOF FOR EACH MONTH (EXCEPT THE FIRST) OR FRACTION
THEREOF DURING WHICH SUCH AMOUNT REMAINS UNPAID.  IN NO EVENT SHALL THE
AGGREGATE ADDITION TO THE TAX UNDER THIS SUBPARAGRAPH WITH RESPECT TO
ANY INSTALLMENT DUE BUT UNPAID, EXCEED 10 PER CENTUM OF THE UNPAID
PORTION OF SUCH INSTALLMENT.  FOR THE PURPOSES OF THIS SUBPARAGRAPH THE
AMOUNT AND DUE DATE OF EACH INSTALLMENT SHALL BE THE SAME AS IF A
DECLARATION HAD BEEN FILED WITHIN THE TIME PRESCRIBED SHOWING AN
ESTIMATED TAX EQUAL TO THE CORRECT TAX REDUCED BY THE CREDITS UNDER

FN3  AFTER THE SIXTH CIRCUIT HAD DELIVERED ITS OPINION IN THIS CASE
BUT BEFORE IT HAD DECIDED THE COMMISSIONER'S PETITION FOR REHEARING,
THE THIRD CIRCUIT, IN ABBOTT V. COMMISSIONER, 258 F.2D 537, AND THE
FIFTH CIRCUIT, IN PATCHEN V. COMMISSIONER, 258 F.2D 544, HELD THAT THE
FAILURE OF A TAXPAYER TO FILE A DECLARATION OF ESTIMATED TAX SUBJECTED
HIM NOT ONLY TO THE "ADDITION TO THE TAX" IMPOSED BY SEC. 294(D)(1)(A)
FOR FAILURE TO FILE A DECLARATION, BUT ALSO TO THE "ADDITION TO THE
TAX" IMPOSED BY SEC. 294(D))2) FOR A "SUBSTANTIAL UNDERESTIMATE" OF HIS
TAX.  LESS THAN TWO MONTHS EARLIER, THE NINTH CIRCUIT, TOO, HAD SO HELD
IN HANSEN V. COMMISSIONER, 258 F.2D 585. 

FROM THE BEGINNING OF LITIGATION INVOLVING THE QUESTION HERE
PRESENTED, A LARGE MAJORITY OF THE PUBLISHED OPINIONS OF THE DISTRICT
COURTS HAVE HELD THAT SEC. 294(D)(2) DOES NOT AUTHORIZE THE TREATMENT
OF A TAXPAYER'S FAILURE TO FILE ANY DECLARATION AT ALL AS THE
EQUIVALENT OF A DECLARATION ESTIMATING HIS TAX TO BE ZERO, AND THAT THE
REGULATION ATTEMPTS TO AMEND AND EXTEND THE STATUTE AND IS THEREFORE
INVALID.  SEE, E.G., UNITED STATES V. RIDLEY, 120 F. SUPP. 530, 538;
UNITED STATES V. RIDLEY, 127 F. SUPP. 3, 11; OWEN V. UNITED STATES, 134
F. SUPP. 31, 39, MODIFIED ON ANOTHER POINT SUB NOM. KNOP V. UNITED
STATES, 234 F.2D 760; POWELL V. GRANQUIST, 146 F. SUPP. 308, 312,
AFF'D, 252 F.2D 56; HODGKINSON V. UNITED STATES, 57-1 U.S.T.C. PARA.
9294; JONES V. WOOD, 151 F. SUPP. 678; GLASS V. DUNN, 56-2 U.S.T.C.
PARA. 9840; STENZEL V. UNITED STATES, 150 F. SUPP. 364; TODD V. UNITED
STATES, 57-2 U.S.T.C. PARA. 9768; ERWIN V. GRANQUIST, 57-2 U.S.T.C.
PARA. 9732, AFF'D, 253 F.2D 26; BARNWELL V. UNITED STATES, 164 F. SUPP.
430.  THREE DISTRICT COURT OPINIONS HAVE HELD THE OTHER WAY, PALMISANO
V. UNITED STATES, 159 F. SUPP.  98; FARROW V. UNITED STATES, 150 F.
SUPP. 581; AND PETERSON V. UNITED STATES, 141 F. SUPP. 382; AND THE TAX
COURT HAS CONSISTENTLY SO HELD.  SEE, E.G., BUCKLEY V. COMMISSIONER, 29
T.C. 455; GARSAUD V. COMMISSIONER, 28 T.C. 1086, 1090. 

THE 1954 INTERNAL REVENUE CODE HAS ELIMINATED THE QUESTION HERE
PRESENTED AS RESPECTS TAXABLE YEARS BEGINNING AFTER JANUARY 1, 1955, BY
PROVIDING FOR A SINGLE ADDITION TO THE TAX OF 6% OF THE AMOUNT OF
UNDERPAYMENT, WHETHER FOR FAILURE TO FILE A DECLARATION OF ESTIMATED
TAX OR TIMELY TO PAY THE QUARTERLY INSTALLMENTS OR FOR A SUBSTANTIAL
UNDERESTIMATION OF THE TAX.  26 U.S.C. (1952 ED., SUPP. V) SEC. 6654. 
BUT THE QUESTION IS STILL A LIVE ONE BECAUSE OF THE PENDENCY OF A
SUBSTANTIAL NUMBER OF CASES WHICH AROSE UNDER AND ARE GOVERNED BY THE
1939 CODE. 

FN4  ALTHOUGH THE COMMISSIONER CONCEDES THAT THE ADDITION TO THE TAX
IMPOSED BY SEC. 294(D)(1)(A) FOR FAILURE TO FILE A DECLARATION OF
ESTIMATED TAX IS A PENALTY, HE CONTENDS THAT THE ADDITION TO THE TAX
IMPOSED BY SEC. 294(D)(2) FOR SUBSTANTIAL UNDERESTIMATION OF THE TAX
MAY NOT BE SO REGARDED.   HE ATTEMPTS TO SUPPORT A DISTINCTION UPON THE
GROUND THAT THE AMOUNT OF THE ADDITION IMPOSED BY SEC. 294(D)(1)(A) OF
5%, PLUS 1% PER MONTH OF UNPAID INSTALLMENTS, NOT EXCEEDING AN
AGGREGATE OF 10% OF SUCH UNPAID INSTALLMENTS, DOES NOT REPRESENT A
NORMAL INTEREST RATE, WHEREAS, HE ARGUES, THE ADDITION OF THE MAXIMUM
OF 6% THAT MAY BE IMPOSED UNDER SEC. 294(D)(2) IS A NORMAL INTEREST
RATE AND SHOULD NOT BE REGARDED AS A PENALTY BUT AS INTEREST TO
COMPENSATE THE GOVERNMENT FOR DELAYED PAYMENT. 

WE THINK THIS ARGUMENT IS UNSOUND, FOR BOTH OF THE ADDITIONS ARE
IMPOSED FOR THE BREACH OF STATUTORY DUTY, AND BOTH ARE CHARACTERIZED BY
THE SAME LANGUAGE.  EACH IS STATED IN THE RESPECTIVE SECTIONS TO BE AN
"ADDITION TO THE TAX" ITSELF; AND, BEING SUCH, IT CANNOT BE INTEREST. 
MOREOVER, BEING "ADDITIONS TO THE TAX," BOTH ADDITIONS ARE THEMSELVES
AS SUBJECT TO STATUTORY INTEREST AS THE REMAINDER OF THE TAX.  26
U.S.C. (1952 ED.)  SEC.  292(A).    FN5  S. REP. NO. 221, 78TH CONG.,
1ST SESS., P. 42; 1943 CUM. BULL.  1314, 1345. 

FN6  SECTION 5(B) OF THE CURRENT TAX PAYMENT ACT OF 1943, C. 120, 57
STAT. 126, INTRODUCED INTO THE 1939 CODE WHAT, AS AMENDED, IS NOW SEC.
294(D)(2) OF THAT CODE. 

FN7  H.R. CONF. REP. NO. 510, 78TH CONG., 1ST SESS., P. 56; 1943 CUM.
BULL.  1351, 1372. 

FN8  SEE NOTE 3. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

ENGLISH COURTS WOULD DECIDE THE CASE AS IT IS BEING DECIDED HERE. 
THEY WOULD DO SO BECAUSE ENGLISH COURTS DO NOT RECOGNIZE THE RELEVANCE
OF LEGISLATIVE EXPLANATIONS OF THE MEANING OF A STATUTE MADE IN THE
COURSE OF ITS ENACTMENT.  IF PARLIAMENT DESIRES TO PUT A GLOSS ON THE
MEANING OR ORDINARY LANGUAGE, IT MUST INCORPORATE IT IN THE TEXT OF
LEGISLATION.  SEE PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW (5TH
ED.), 330-336; AMOS, THE INTERPRETATION OF STATUTES, 5 CAMB.  L.J. 163;
DAVIES, THE INTERPRETATION OF STATUTES, 35 COL. L. REV. 519; LORD
HALDANE IN VISCOUNTESS RHONDDA'S CLAIM, (1922) 2 A.C. 339, 383-384. 
QUITE OTHERWISE HAS BEEN THE PROCESS OF STATUTORY CONSTRUCTION
PRACTICED BY THIS COURT OVER THE DECADES IN SCORES AND SCORES OF
CASES.  CONGRESS CAN BE THE GLOSSATOR OF THE WORDS IT LEGISLATIVELY
USES EITHER BY WRITING ITS DESIRED MEANING, HOWEVER, ODD, INTO THE TEXT
OF ITS ENACTMENT, OR BY A CONTEMPORANEOUSLY AUTHORITATIVE EXPLANATION
ACCOMPANYING A STATUTE.  THE MOST AUTHORITATIVE FORM OF SUCH
EXPLANATION IS A CONGRESSIONAL REPORT DEFINING THE SCOPE AND MEANING OF
PROPOSED LEGISLATION.  THE MOST AUTHORITATIVE REPORT IS A CONFERENCE
REPORT ACTED UPON BY BOTH HOUSES AND THEREFORE UNEQUIVOCALLY
REPRESENTING THE WILL OF BOTH HOUSES AS THE JOINT LEGISLATIVE BODY. 

NO DOUBT TO FIND FAILURE TO FILE A DECLARATION OF ESTIMATED INCOME TO
BE A "SUBSTANTIAL UNDERESTIMATE" WOULD BE TO ATTRIBUTE TO CONGRESS A
MOST UNLIKELY MEANING FOR THAT PHRASE IN SEC. 294(D)(2) SIMPLICITER. 
BUT IF CONGRESS CHOOSES BY APPROPRIATE MEANS FOR EXPRESSING ITS PURPOSE
TO USE LANGUAGE WITH AN UNLIKELY AND EVEN ODD MEANING, IT IS NOT FOR
THIS COURT TO FRUSTRATE ITS PURPOSE.  THE COURT'S TASK IS TO CONSTRUE
NOT ENGLISH BUT CONGRESSIONAL ENGLISH.  OUR PROBLEM IS NOT WHAT DO
ORDINARY ENGLISH WORDS MEAN, BUT WHAT DID CONGRESS MEAN THEM TO MEAN. 
"IT IS SAID THAT WHEN THE MEANING OF LANGUAGE IS PLAIN WE ARE NOT TO
RESORT TO EVIDENCE IN ORDER TO RAISE DOUBTS.  THAT IS RATHER AN AXIOM
OF EXPERIENCE THAN A RULE OF LAW, AND DOES NOT PRECLUDE CONSIDERATION
OF PERSUASIVE EVIDENCE IF IT EXISTS."  BOSTON SAND & GRAVEL CO. V.
UNITED STATES, 278 U.S. 41, 48. 

HERE WE HAVE THE MOST PERSUASIVE KIND OF EVIDENCE THAT CONGRESS DID
NOT MEAN THE LANGUAGE IN CONTROVERSY, HOWEVER PLAIN IT MAY BE TO THE
ORDINARY USER OF ENGLISH, TO HAVE THE ORDINARY MEANING.  THESE
PROVISIONS WERE FIRST ENACTED IN THE CURRENT TAX PAYMENT ACT OF 1943,
C. 120, 57 STAT. 126, AS ADDITIONS TO SEC. 294(A) OF THE INTERNAL
REVENUE CODE OF 1939.  THE CONFERENCE REPORT, H.R. CONF. REP. NO. 510,
P. 56, AND THE SENATE REPORT, S. REP. NO. 221, P. 42, BOTH GAVE THE
PROVISION DEALING WITH SUBSTANTIAL UNDERESTIMATION OF TAXES THE
FOLLOWING GLOSS: 

"IN THE EVENT OF A FAILURE TO FILE ANY DECLARATION WHERE ONE IS DUE,
THE AMOUNT OF THE ESTIMATED TAX FOR THE PURPOSES OF THIS PROVISION WILL
BE ZERO." 

THE REVISION OF THE SECTION EIGHT MONTHS LATER BY THE REVENUE ACT OF
1943, C. 63, 58 STAT. 21, DID NOT AFFECT ITS SUBSTANCE, AND THIS
PROVISION, THEREFORE, CONTINUED TO CARRY THE ORIGINAL GLOSS.  WHILE THE
COURT ADVERTS TO THIS CONGRESSIONAL DEFINITION, IT DISREGARDS ITS
CONTROLLING SIGNIFICANCE.* 

*THE ESSENTIAL RELIANCE OF THE COURT IS ON ITS CHARACTERIZATION OF
SEC. 294(D)(2) AS A PENALTY.  NO ADEQUATE JUSTIFICATION FOR THIS
EXISTS.  SECTION 294(D)(2) ON ITS FACE INDICATES THAT IT IS IN THE
NATURE OF AN INTEREST CHARGE, DESIGNED TO COMPENSATE THE TREASURY FOR
DELAY IN RECEIPT OF FUNDS WHICH A REASONABLY ACCURATE ESTIMATE WOULD
HAVE DISCLOSED TO BE DUE AND OWING.  SIGNIFICANTLY, THIS CHARGE IS
IMPOSED REGARDLESS OF FAULT, WHILE SEC. 294(D)(1)(A), A TRUE PENALTY
PROVISION, AUTHORIZES NO ADDITION TO TAX WHEN THE FAILURE TO FILE IS
SHOWN "TO BE DUE TO REASONABLE CAUSE AND NOT TO WILLFUL NEGLECT."  HAD
TAXPAYER HERE HAD REASONABLE CAUSE FOR FAILURE TO FILE, THE 10%
ADDITION UNDER SEC. 294(D)(1)(A) COULD NOT HAVE BEEN IMPOSED.  YET
TAXES WOULD HAVE BEEN WITHHELD BY HIM PENDING THE FILING OF A FINAL
RETURN FOR THE YEAR.  SECTION 294(D)(2) PROVIDES THE GOVERNMENT A
DEFINITE MEANS FOR ASCERTAINING THE COMPENSATION FOR THIS LOSS OF
FUNDS. 

I AGREE WITH THE CONSTRUCTION PLACED UPON THE PROVISION  Y THE THIRD,
FIFTH, AND NINTH CIRCUITS.  ABBOTT V. COMMISSIONER, 258 F.2D 537 (C.A.
3D CIR. 1958); PATCHEN V. COMMISSIONER, 258 F.2D 544 (C.A. 5TH CIR.
1958); HANSEN V. COMMISSIONER, 258 F.2D 585 (C.A. 9TH CIR. 1958). 
..END :








TRI-CITY BROADCASTING CO. V. BOWERS 361 U.S. 97 


NO. 406.  DECIDED NOVEMBER 16, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  169 OHIO ST. 126, 158
N.E.2D 203. 


TRI-CITY BROADCASTING CO. V. BOWERS, TAX COMMISSIONER OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















UNITED STATES V. SEABOARD AIR LINE RAILROAD CO. 361 U.S. 78 


NO. 10.  ARGUED OCTOBER 19, 1959 - DECIDED NOVEMBER 9, 1959 - 258 F.2D
262, REVERSED. 


THE PROVISION OF THE SAFETY APPLIANCE ACT REQUIRING POWER BRAKES ON
RAILROAD "TRAINS" APPLIES TO MOVEMENTS OF AN ASSEMBLED UNIT CONSISTING
OF AN ENGINE AND A SUBSTANTIAL NUMBER OF CARS BETWEEN A CLASSIFICATION
OR ASSEMBLY YARD AND INDUSTRIAL PLANTS ONE OR TWO MILES FROM SUCH YARD,
OVER A TRACK THROUGH A CITY WHICH MAKES AN INTERCHANGE CONNECTION WITH
ANOTHER RAILROAD AND CROSSES AT GRADE FIVE STREETS, TWO PRIVATE ROADS
AND FOUR TRACKS OF ANOTHER RAILROAD, WHEN THE CARS ARE EITHER RECEIVED
FROM A CONSIGNOR OR DELIVERED TO A CONSIGNEE.  PP. 78-83. 

UNITED STATES V. SEABOARD AIR LINE RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR STATUTORY PENALTIES, INSTITUTED BY THE UNITED
STATES, CHARGING RESPONDENT WITH THE OPERATION OF FOUR TRAINS IN
VIOLATION OF THE SAFETY APPLIANCE ACT, 27 STAT. 531, AS AMENDED, 32
STAT. 943, 45 U.S.C. SECS. 1, 6, 9.  THAT ACT REQUIRES EVERY "TRAIN"
MOVING IN INTERSTATE TRAFFIC (FN1) TO HAVE POWER BRAKES ON NOT LESS
THAN 50% OF THE CARS (SECS. 1, 9) - A REQUIREMENT WHICH THE INTERSTATE
COMMERCE COMMISSION BY REGULATION HAS INCREASED TO 85%.  49 CFR SEC.
132.1.  THE PENALTIES ARE $100 FOR EACH VIOLATION.  (FN2)  SEC. 6. 

THE DISTRICT COURT RENDERED JUDGMENT FOR RESPONDENT AND THE COURT OF
APPEALS AFFIRMED BY A DIVIDED VOTE.  258 F.2D 262.  WE GRANTED THE
PETITION FOR A WRIT OF CERTIORARI BECAUSE OF THE SEEMING CONFLICT
BETWEEN THAT RULING AND OUR PRIOR DECISIONS.  358 U.S. 926. 

RESPONDENT HAS A "CLASSIFICATION OR ASSEMBLY YARD" IN HOPEWELL,
VIRGINIA.  TRAINS TO AND FROM HOPEWELL USE IT FOR BREAKING UP INCOMING
TRAINS AND FOR ASSEMBLING CARS INTO OUTGOING TRAINS.  A TRACK EXTENDS
FROM THIS "CLASSIFICATION" YARD FOR ABOUT TWO MILES THROUGH THE CITY. 
IN THIS STRETCH THE TRACKS MAKE AN INTERCHANGE CONNECTION WITH ANOTHER
RAILROAD AND CROSS, AT GRADE, FIVE STREETS, TWO PRIVATE ROADS AND FOUR
TRACKS OF ANOTHER RAILROAD.  NINE SPUR TRACKS BRANCH OFF THESE TRACKS
TO INDUSTRIAL SIDINGS.  ABOUT TWO MILES FROM THE "CLASSIFICATION" YARD
ARE PLANTS OF THE ALLIED CHEMICAL & DYE COMPANY AND CONTINENTAL CAN
COMPANY. 

THE COMPLAINT CHARGED FOUR VIOLATIONS:  FIRST, MOVING A LOCOMOTIVE
AND 26 CARS AS A SINGLE UNIT, WITHOUT STOPS, FROM THE TRACK OF ALLIED
CHEMICAL TO THE "CLASSIFICATION" YARD.  SECOND, MOVING A LOCOMOTIVE AND
28 CARS AS A SINGLE UNIT, WITHOUT STOPS, FROM THE "CLASSIFICATION" YARD
TO THE TRACK OF ALLIED CHEMICAL.  THIRD, MOVING A LOCOMOTIVE AND 29
CARS AS A SINGLE UNIT, WITHOUT STOPS, FROM A TRACK NEAR ALLIED CHEMICAL
FOR ABOUT A MILE TO THE INTERCHANGE TRACK WHERE THE LOCOMOTIVE WAS
DETACHED, COUPLED TO 20 ADDITIONAL CARS, AND THEN RECOUPLED TO THE 29
CARS.  THE 49 CARS WERE THEN HAULED, WITHOUT STOPS, FOR ABOUT A MILE TO
THE "CLASSIFICATION" YARD.  FOURTH, MOVING A LOCOMOTIVE AND 23 CARS AS
A SINGLE UNIT, WITHOUT STOPS, FROM THE "CLASSIFICATION" YARD TO THE
TRACK OF CONTINENTAL CAN.  (FN3) 

THE MEANING OF THE WORD "TRAIN" AS USED IN THE ACT HAS BEEN BEFORE
THE COURT FOUR TIMES.  IN UNITED STATES V. ERIE R. CO., 237 U.S. 402,
IT WAS RECOGNIZED THAT WHILE "SWITCHING OPERATIONS" WERE NOT "TRAIN"
MOVEMENTS WITHIN THE MEANING OF THE ACT, THE MOVEMENT OF CARS FROM ONE
YARD TO ANOTHER YARD OF THE SAME CARRIER WAS COVERED.  IT WAS
EMPHASIZED THAT THIS MOVEMENT, LIKE OTHER MAINLINE MOVEMENTS, TOOK THE
CARS OVER SWITCHES AND OTHER TRACKS WHERE THE TRAFFIC WAS EXPOSED TO
THE HAZARDS AGAINST WHICH THE ACT WAS DESIGNED TO AFFORD PROTECTION. 
THE SAME RESULT WAS REACHED IN UNITED STATES V. CHICAGO, B.&Q.R. CO.,
237 U.S. 410, WHERE THE MOVEMENTS WERE OF TRANSFER TRAINS, SHIFTING
CARS FROM ONE YARD IN KANSAS CITY TO ANOTHER ON THE OPPOSITE SIDE OF
THE MISSOURI RIVER.  IT WAS AGAIN EMPHASIZED THAT THIS WAS "NOT
SHIFTING CARS ABOUT IN A YARD OR ON ISOLATED TRACKS DEVOTED TO
SWITCHING OPERATIONS," BUT MOVING TRAFFIC OVER A LINE WHERE THERE WERE
GREAT HAZARDS IN THE OPERATION.  ID., AT 412.  LOUISVILLE & J. BRIDGE
CO. V. UNITED STATES, 249 U.S. 534, INVOLVED MOVEMENTS OF CARS FOR
ABOUT THREE-QUARTERS OF A MILE FROM ONE COMPANY'S TERMINAL TO THAT OF
ANOTHER, THE CARS PASSING OVER CITY STREETS, AT GRADE, AND ALONG AND
OVER OTHER TRACKS.  THE COURT, IN HOLDING THAT THESE MOVEMENTS WERE
COVERED BY THE ACT, EMPHASIZED THAT THIS WAS NOT "A SORTING, OR
SELECTING, OR CLASSIFYING" OF CARS "INVOLVING COUPLING AND UNCOUPLING,
AND THE MOVEMENT OF ONE OR A FEW AT A TIME FOR SHORT DISTANCES," BUT AN
OPERATION INVOLVING THE TYPICAL HAZARDS WHICH GAVE RISE TO THE NEED FOR
THE ACT.  ID., AT 538.  UNITED STATES V. NORTHERN PACIFIC R. CO., 254
U.S. 251, INVOLVED SO-CALLED TRANSFER TRAINS RUNNING BETWEEN POINTS,
FOUR MILES APART, WITHIN ONE YARD.  THE RAILROAD CONTENDED THAT THE ACT
DID NOT APPLY BECAUSE THE MOVEMENT WAS WITHIN A YARD AND BECAUSE NO
THROUGH OR LOCAL TRAINS MOVED OVER THESE TRACKS.  THE TRACKS DID CROSS
STREETS AND OTHER TRACKS AT GRADE; AND THE TRAINS WERE RUN WITHOUT
STOPS THE FOUR MILES.  IT WAS HELD THAT THESE MOVEMEMTS WERE COVERED BY
THE ACT.  "A MOVING LOCOMOTIVE WITH CARS ATTACHED IS WITHOUT THE
PROVISION OF THE ACT ONLY WHEN IT IS NOT A TRAIN; AS WHERE THE
OPERATION IS THAT OF SWITCHING, CLASSIFYING AND ASSEMBLING CARS WITHIN
RAILROAD YARDS FOR THE PURPOSE OF MAKING UP TRAINS."  ID., AT 254-255. 

WE THINK THIS CASE, JUDGED BY THE PRINCIPLES ANNOUNCED IN THE EARLIER
FOUR, WAS ERRONEOUSLY DECIDED. 

THE END OF EACH TRIP WAS CHARACTERISTIC OF THE USUAL FREIGHT RUN:
CARS WERE EITHER RECEIVED FROM A CONSIGNOR OR DELIVERED TO THE
CONGIGNEE.  THIS WAS NOT "SORTING, OR SELECTING, OR CLASSIFYING" CARS
"INVOLVING COUPLING AND UNCOUPLING, AND THE MOVEMENT OF ONE OR A FEW AT
A TIME FOR SHORT DISTANCES" (LOUISVILLE & J. BRIDGE CO. V. UNITED
STATES, SUPRA, AT 538) NOR ANY OTHER TYPE OF MOVEMENT THAT IS
COMPARABLE TO "SWITCHING."  IN THREE OF THE MOVEMENTS THERE WAS A RUN
OF TWO MILES WITHOUT STOPS.  IN ONE, THERE WAS ONE STOP TO PICK UP
ADDITIONAL CARS; BUT A MILE RUN PRECEDED THAT STOP AND ANOTHER MILE OF
UNINTERRUPTED TRAVEL FOLLOWED IT.  THE PRIOR DECISIONS MAKE CLEAR THAT
IT IS IMMATERIAL THAT THE RUN WAS NOT ON THE MAIN LINE BUT IN A YARD. 
THE FACT THAT SWITCHING PRECEDED OR FOLLOWED THESE MOVEMENTS IS
LIKEWISE IRRELEVANT TO THE STATUTORY TEST.  IT MAY PROPERLY BE SAID
THERE IS NO "TRAIN" IN A TRUE "SWITCHING" OPERATION.  BUT WHEN CARS -
AT LEAST IN SUBSTANTIAL NUMBER - ARE BEING RECEIVED FROM CONSIGNORS OR
DELIVERED TO CONSIGNEES IN AN ASSEMBLED UNIT OF ENGINE AND CARS THAT
MOVES A SUBSTANTIAL DISTANCE, THE OPERATION IS INTRINSICALLY NO
DIFFERENT, FOR PURPOSES OF THE ACT, THAN A MAIN-LINE HAUL. 

THE DISTRICT COURT FOUND THAT "THE MOVEMENTS COMPLAINED OF WOULD NOT
HAVE BEEN LESS HAZARDOUS TO EMPLOYEES OR THE PUBLIC IF AIR BRAKES HAD
BEEN COUPLED AND USED."  YET IT IS NOT FOR COURTS TO DETERMINE IN
PARTICULAR CASES WHETHER THIS SAFETY MEASURE IS OR IS NOT NEEDED. 
CONGRESS DETERMINED THE POLICY THAT GOVERNS US IN APPLYING THE LAW. 
TRADITIONALLY, MOVEMENTS OF ASSEMBLED CARS FOR SUBSTANTIAL DISTANCES
INVOLVED THE HAZARDS OF CROSSING PUBLIC HIGHWAYS AND THE TRACKS OF
OTHER LINES WITH ATTENDANT RISKS TO THE PUBLIC.  MORE IMPORTANT, THEY
INVOLVED RISKS TO THOSE WHO RIDE THE TRAINS, (FN4) PARTICULARLY THE MEN
WHO OPERATE THEM.  HISTORY SHOWED THAT HUNDREDS OF WORKERS HAD BEEN
INJURED OR KILLED BY THE STOPPING OF UNBRAKED CARS, BY THE OPERATION OF
HAND BRAKES, AND BY THE USE OF HAND COUPLERS.  THIS HISTORY, WELL KNOWN
TO CONGRESS, (FN5) WAS THE PRIMARY PURPOSE BEHIND THE LEGISLATION.  THE
ACT, THEREFORE, SHOULD BE LIBERALLY CONSTRUED AS A SAFETY MEASURE. 
MOVEMENTS WHICH, THOUGH MINIATURE WHEN COMPARED WITH MAIN-LINE HAULS,
HAVE THE CHARACTERISTICS OF THE CUSTOMARY "TRAIN" MOVEMENT AND ITS
ATTENDANT RISKS ARE TO BE INCLUDED.  REVERSED. 

FN1  SECTION 1 PROVIDES, IN RELEVANT PART: 

"IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER ENGAGED IN INTERSTATE
COMMERCE BY RAILROAD TO USE ON ITS LINE ANY LOCOMOTIVE ENGINE IN MOVING
INTERSTATE TRAFFIC NOT EQUIPPED WITH  ...  APPLIANCES FOR OPERATING THE
TRAIN-BRAKE SYSTEM, OR TO RUN ANY TRAIN IN SUCH TRAFFIC THAT HAS NOT A
SUFFICIENT NUMBER OF CARS IN IT SO EQUIPPED WITH POWER OR TRAIN BRAKES
THAT THE ENGINEER ON THE LOCOMOTIVE DRAWING SUCH TRAIN CAN CONTROL ITS
SPEED WITHOUT REQUIRING BRAKEMEN TO USE THE COMMON HAND BRAKE FOR THAT
PURPOSE." 

FN2  THE STATUTE WAS AMENDED AUGUST 14, 1957, TO INCREASE THE PENALTY
TO $250 (71 STAT. 352, 45 U.S.C. (SUPP. V) SEC. 6). 

FN3  RESPONDENT SINCE 1951 HAD USED AIR BRAKES ON THE CARS IN THESE
MOVEMENTS AFTER INSPECTORS OF THE INTERSTATE COMMERCE COMMISSION HAD
ADVISED THAT IT WAS NECESSARY TO DO SO.  BUT IT DISCONTINUED THE
PRACTICE IN 1956, JUSTIFYING THE DISCONTINUANCE ON THE GROUND THAT
SWITCHING MOVEMENTS WERE INVOLVED, THAT THE USE OF AIR BRAKES CAUSED A
DELAY OF ABOUT 40 MINUTES IN EACH MOVEMENT, AND THAT THE INCREASED
ANNUAL COST FOR THE USE OF AIR BRAKES WAS $30,000. 

FN4  THE TITLE OF THE ORIGINAL ACT DESCRIBED IT AS "AN ACT TO PROMOTE
THE SAFETY OF EMPLOYEES AND TRAVELERS UPON RAILROADS  ...  " ETC.  27
STAT. 531. 

FN5  SEE H.R. REP. NO. 1678, 52D CONG., 1ST SESS., P. 3, WHERE IT IS
NOTED THAT FOR THE YEARS 1889 AND 1890 "38 PER CENT OF THE TOTAL NUMBER
OF DEATHS AND 46 PER CENT OF THE TOTAL NUMBER OF INJURIES SUSTAINED BY
RAILWAY EMPLOYES RESULTED WHILE COUPLING CARS OR SETTING BRAKES." 

ON PAGE 7 OF A REPORT OF A SUBCOMMITTEE SUBMITTED AS A PART OF S.
REP. NO. 1930, 57TH CONG., 1ST SESS., THE FOLLOWING STATEMENT OF A
WITNESS APPEARING BEFORE THE SUBCOMMITTEE WAS MADE: 

"IF ONLY A PORTION OF THE EQUIPPED CARS ARE OPERATED, TRAINMEN ARE
EXPOSED TO GREAT DANGER ARISING FROM THE BREAKAGE OF AN AIR HOSE, OR A
COUPLING BETWEEN THE CARS SO BRAKED, WHICH CAUSES AN INSTANTANEOUS AND
EXTREMELY POWERFUL APPLICATION OF THE POWER BRAKES, WHICH CAUSES THE
FRONT CARS IN THE TRAIN TO QUICKLY SLACKEN SPEED AND STOP, AND THE
OTHER CARS BEHIND THEM, WHICH ARE NOT BRAKED, TO RUSH FORWARD AGAINST
THEM, THUS CAUSING A SEVERE SHOCK, WHICH OFTEN WRECKS THE TRAIN AND
JARS THE TRAINMEN OFF AND INJURES THEM, AND IN SOME CASES THEY FALL
UNDER THE WHEELS AND ARE KILLED.  IF THE BRAKES ON ALL OF THE CARS WERE
OPERATED THIS WOULD NOT BE SO, FOR THE BRAKES WOULD BE APPLIED EQUALLY
ALL OVER THE TRAIN, AND THE CARS ON THE REAR END WOULD SLACKEN THEIR
SPEED JUST AS QUICKLY AS THOSE ON THE FRONT END, AND THUS PREVENT THEIR
RUNNING FORWARD AGAINST THE FRONT CARS AND PRODUCING THE SHOCK JUST
DESCRIBED.  THERE IS NO WAY FOR TRAINMEN TO ESCAPE THESE INJURIES, FOR
THEY ARE STILL REQUIRED BY THE COMPANIES TO RIDE OUT ON THE TOPS OF
TRAINS, AND WHEN ONE OF THESE SHOCKS COMES, IT COMES TO THEM WITHOUT
WARNING, FOR THE NOISE OF THE RUNNING TRAIN, TOGETHER WITH DARKNESS AT
NIGHT, PREVENTS THEM FROM DETECTING ANY TROUBLE AHEAD. 

"WRECKS CAUSED IN THIS WAY DO NOT ONLY CAUSE INJURY TO THE TRAINMEN
ON THE TRAIN WHICH IS WRECKED, BUT ALSO ON DOUBLE-TRACKED ROADS THE
OPPOSITE TRACK IS IMMEDIATELY BLOCKED WITH WRECKED CARS, THUS
ENDANGERING NOT ONLY THE LIVES AND LIMBS OF TRAINMEN, BUT PASSENGERS AS
WELL, WHO MAY BE ON TRAINS APPROACHING ON THE OPPOSITE TRACK, WHICH CAN
NOT BE STOPPED BEFORE STRIKING THE OBSTRUCTION.  I PERSONALLY KNOW OF
SEVERAL BAD WRECKS OF THIS CHARACTER MYSELF." 
..END :










ST. JOHNS MOTOR EXPRESS CO. V. UNITED STATES 361 U.S. 84 


NO. 337.  DECIDED NOVEMBER 9, 1959 - JUDGMENT AFFIRMED. 


ST. JOHNS MOTOR EXPRESS CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















TAHITI BAR, INC., V. PENNSYLVANIA LIQUOR CONTROL BOARD 361 U.S. 85 


NO. 363.  DECIDED NOVEMBER 9, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  395 PA. 355, 150 A.2D
112. 


TAHITI BAR, INC., V. PENNSYLVANIA LIQUOR CONTROL BOARD ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















LEHIGH CASINO V. PENNSYLVANIA LIQUOR CONTROL BOARD 361 U.S. 85 


NO. 379.  DECIDED NOVEMBER 9, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  395 PA. 355, 150 A.2D
112. 


LEHIGH CASINO, INC., V. PENNSYLVANIA LIQUOR CONTROL BOARD ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SAFEWAY TRAILS, INC., V. UNITED STATES 361 U.S. 86 


NO. 375.  DECIDED NOVEMBER 9, 1959 - 176 F. SUPP. 201, AFFIRMED. 


SAFEWAY TRAILS, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















GLOVER V. MICHIGAN 361 U.S. 86 


NO. 265, MISC.  DECIDED NOVEMBER 9, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


GLOVER V. MICHIGAN. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















UNITED STEELWORKERS OF AMERICA V. UNITED STATES 361 U.S. 39 


NO. 504.  ARGUED NOVEMBER 3, 1959 - DECIDED NOVEMBER 7, 1959 - 271 F.2D
676, AFFIRMED. 


UNDER SEC. 208 OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, THE UNITED
STATES SUED IN A FEDERAL DISTRICT COURT TO ENJOIN THE CONTINUATION OF
AN INDUSTRY-WIDE STRIKE IN THE STEEL INDUSTRY.  AFTER CONSIDERING
AFFIDAVITS FILED BY THE PARTIES AND FINDING THAT THE STRIKE HAD CLOSED
DOWN A SUBSTANTIAL PART OF THE NATION'S STEEL-PRODUCTION CAPACITY AND
THAT ITS CONTINUATION WOULD "IMPERIL THE NATIONAL HEALTH AND SAFETY,"
THE DISTRICT COURT ENJOINED CONTINUATION OF THE STRIKE.  THE COURT OF
APPEALS AFFIRMED.  HELD:  THE JUDGMENT IS SUSTAINED.  PP. 40-44. 

1.  ONCE IT DETERMINED THAT THE STATUTORY CONDITIONS OF BREADTH OF
INVOLVEMENT AND PERIL TO THE NATIONAL HEALTH OR SAFETY EXISTED, THE
DISTRICT COURT PROPERLY ENJOINED CONTINUATION OF THE STRIKE.  CONGRESS
DID NOT INTEND THAT THE ISSUANCE OF AN INJUNCTION SHOULD DEPEND UPON A
JUDICIAL INQUIRY INTO BROAD ISSUES OF NATIONAL LABOR POLICY, THE
AVAILABILITY OF OTHER REMEDIES TO THE EXECUTIVE, THE EFFECT OF AN
INJUNCTION ON THE COLLECTIVE BARGAINING PROCESS, THE CONDUCT OF THE
PARTIES TO THE LABOR DISPUTE IN THEIR NEGOTIATIONS, OR CONJECTURE AS TO
THE COURSE OF THOSE NEGOTIATIONS IN THE FUTURE.  PP. 40-41. 

2.  ON THE RECORD IN THIS CASE, THE JUDGMENT BELOW WAS AMPLY
SUPPORTED ON THE GROUND THAT THE STRIKE IMPERILED THE NATIONAL SAFETY. 
PP. 41-42. 

3. SECTION 208 WAS DESIGNED TO PROVIDE A PUBLIC REMEDY IN TIMES OF
EMERGENCY, AND IT CANNOT BE CONSTRUED TO REQUIRE THAT THE GOVERNMENT
EITHER FORMUALTE A REORGANIZATION OF THE AFFECTED INDUSTRY TO SATISFY
ITS DEFENSE NEEDS WITHOUT THE COMPLETE REOPENING OF CLOSED FACILITIES
OR DEMONSTRATE IN COURT THAT SUCH A REORGANIZATION IS NOT FEASIBLE.  P.
43. 

4.  AS HERE APPLIED, SEC. 208 ENTRUSTS TO THE COURTS ONLY THE
DETERMINATION OF A "CASE OR CONTROVERSY."  IT DOES NOT VIOLATE THE
CONSTITUTION BY ENTRUSTING TO THEM ANY MATTER CAPABLE OF ONLY
LEGISLATIVE OR EXECUTIVE DETERMINATION.  PP. 43-44. 

UNITED STEELWORKERS OF AMERICA V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

THE ATTORNEY GENERAL SOUGHT AND OBTAINED IN THE DISTRICT COURT FOR
THE WESTERN DISTRICT OF PENNSYLVANIA AN INJUNCTION AGAINST THE
CONTINUATION OF AN INDUSTRY-WIDE STRIKE OF WORKERS IN THE BASIC STEEL
INDUSTRY PURSUANT TO SEC. 208 OF THE LABOR MANAGEMENT RELATIONS ACT,
1947, 61 STAT. 155, 29 U.S.C. SEC. 178.  WE GRANTED CERTIORARI, POST,
P. 878, TO REVIEW THE JUDGMENT OF THE COURT OF APPEALS FOR THE THIRD
CIRCUIT, 271 F.2D 676, AFFIRMING THE DISTRICT COURT.  IN PERTINENT
PART, SEC. 208 PROVIDES THAT IF THE DISTRICT COURT: 

"FINDS THAT  ...  A THREATENED OR ACTUAL STRIKE OR LOCK-OUT: 

"(I)  AFFECTS AN ENTIRE INDUSTRY OR A SUBSTANTIAL PART THEREOF
ENGAGED IN TRADE, COMMERCE, TRANSPORTATION, TRANSMISSION, OR
COMMUNICATION AMONG THE SEVERAL STATES OR WITH FOREIGN NATIONS, OR
ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE; AND: 

"(II)  IF PERMITTED TO OCCUR OR TO CONTINUE, WILL IMPERIL THE
NATIONAL HEALTH OR SAFETY, IT SHALL HAVE JURISDICTION TO ENJOIN ANY
SUCH STRIKE OR LOCK-OUT, OR THE CONTINUING THEREOF, AND TO MAKE SUCH
OTHER ORDERS AS MAY BE APPROPRIATE." 

THE ARGUMENTS OF THE PARTIES HERE AND IN THE LOWER COURTS HAVE
ADDRESSED THEMSELVES IN CONSIDERABLE PART TO THE PROPRIETY OF THE
DISTRICT COURT'S EXERCISING ITS EQUITABLE JURISDICTION TO ENJOIN THE
STRIKE IN QUESTION ONCE THE FINDINGS SET FORTH ABOVE HAD BEEN MADE. 
THESE ARGUMENTS HAVE RANGED WIDELY INTO BROAD ISSUES OF NATIONAL LABOR
POLICY, THE AVAILABILITY OF OTHER REMEDIES TO THE EXECUTIVE, THE EFFECT
OF A LABOR INJUNCTION ON THE COLLECTIVE BARGAINING PROCESS,
CONSIDERATION OF THE CONDUCT OF THE PARTIES TO THE LABOR DISPUTE IN
THEIR NEGOTIATIONS, AND CONJECTURE AS TO THE COURSE OF THOSE
NEGOTIATIONS IN THE FUTURE.  WE DO NOT BELIEVE THAT CONGRESS IN PASSING
THE STATUTE INTENDED THAT THE ISSUANCE OF INJUNCTIONS SHOULD DEPEND
UPON JUDICIAL INQUIRIES OF THIS NATURE.  CONGRESS WAS NOT CONCERNED
WITH THE MERITS OF THE PARTIES' POSITIONS OR THE CONDUCT OF THEIR
NEGOTIATIONS.  ITS BASIC PURPOSE SEEMS TO HAVE BEEN TO SEE THAT VITAL
PRODUCTION SHOULD BE RESUMED OR CONTINUED FOR A TIME WHILE FURTHER
EFFORTS WERE MADE TO SETTLE THE DISPUTE.  TO CARRY OUT ITS PURPOSES,
CONGRESS CAREFULLY SURROUNDED THE INJUNCTION PROCEEDINGS WITH DETAILED
PROCEDURAL DEVICES AND LIMITATIONS.  THE PUBLIC REPORT OF A BOARD OF
INQUIRY, THE EXERCISE OF POLITICAL AND EXECUTIVE RESPONSIBILITY
PERSONALLY BY THE PRESIDENT IN DIRECTING THE COMMENCEMENT OF INJUNCTION
PROCEEDINGS, THE STATUTORY PROVISIONS LOOKING TOWARD AN ADJUSTMENT OF
THE DISPUTE DURING THE INJUNCTION'S PENDENCY, AND THE LIMITED DURATION
OF THE INJUNCTION, REPRESENT A CONGRESSIONAL DETERMINATION OF POLICY
FACTORS INVOLVED IN THE DIFFICULT PROBLEM OF NATIONAL EMERGENCY
STRIKES.  THIS CONGRESSIONAL DETERMINATION OF THE POLICY FACTORS IS OF
COURSE BINDING ON THE COURTS. 

THE STATUTE IMPOSES UPON THE COURTS THE DUTY OF FINDING, UPON THE
EVIDENCE ADDUCED, WHETHER A STRIKE OR LOCK-OUT MEETS THE STATUTORY
CONDITIONS OF BREADTH OF INVOLVEMENT AND PERIL TO THE NATIONAL HEALTH
OR SAFETY.  WE HAVE ACCORDINGLY REVIEWED THE CONCURRENT FINDINGS OF THE
TWO LOWER COURTS.  PETITIONER HERE CONTESTS THE FINDINGS THAT THE
CONTINUATION OF THE STRIKE WOULD IMPERIL THE NATIONAL HEALTH AND
SAFETY.  THE PARTIES DISPUTE THE MEANING OF THE STATUTORY TERM
"NATIONAL HEALTH"; THE GOVERNMENT INSISTS THAT THE TERM COMPREHENDS THE
COUNTRY'S GENERAL WELL-BEING, ITS ECONOMIC HEALTH; PETITIONER URGES
THAT SIMPLY THE PHYSICAL HEALTH OF THE CITIZENRY IS MEANT.  WE NEED NOT
RESOLVE THIS QUESTION, FOR WE THINK THE JUDGMENT BELOW IS AMPLY
SUPPORTED ON THE GROUND THAT THE STRIKE IMPERILS THE NATIONAL SAFETY.*
HERE WE RELY UPON THE EVIDENCE OF THE STRIKE'S EFFECT ON SPECIFIC
DEFENSE PROJECTS; WE NEED NOT PASS ON THE GOVERNMENT'S CONTENTION THAT
"NATIONAL SAFETY" IN THIS CONTEXT SHOULD BE GIVEN A BROADER
CONSTRUCTION AND APPLICATION. 

*THE EVIDENCE IN THIS REGARD IS REFLECTED IN THE DISTRICT COURT'S
FINDING OF FACT NOS.  15(A), (B), (C), AND (D), AS FOLLOWS: 

"(A)  CERTAIN ITEMS OF STEEL REQUIRED IN TOP PRIORITY MILITARY
MISSILE PROGRAMS OF THE UNITED STATES ARE NOT MADE BY ANY MILL NOW
OPERATING, NOR AVAILABLE FROM ANY INVENTORY OR FROM IMPORTS.  ANY
FURTHER DELAY IN RESUMPTION OF STEEL PRODUCTION WOULD RESULT IN AN
IRRETRIEVABLE LOSS OF TIME IN THE SUPPLY OF WEAPONS SYSTEMS ESSENTIAL
TO THE NATIONAL DEFENSE PLANS OF THE UNITED STATES AND ITS ALLIES. 

"(B)  THE PLANNED PROGRAM OF SPACE ACTIVITIES UNDER THE DIRECTION OF
THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION HAS BEEN DELAYED BY
THE STRIKE AND WILL BE FURTHER DELAYED IF IT IS CONTINUED. 
SPECIFICALLY, PROJECT MERCURY, THE NATION'S MANNED SATELLITE PROGRAM,
WHICH HAS THE HIGHEST NATIONAL PRIORITY, HAS BEEN DELAYED BY REASON OF
DELAY IN CONSTRUCTION OF BUILDINGS ESSENTIAL TO ITS OPERATION.  THIS
PROGRAM IS IMPORTANT TO THE SECURITY OF THE NATION.  OTHER PLANNED
SPACE PROGRAMS WILL BE DELAYED OR THREATENED WITH DELAY BY A
CONTINUATION OF THE STRIKE. 

"(C)  NUCLEAR SUBMARINES AND THE NAVAL SHIPBUILDING PROGRAM OTHER
THAN SUBMARINES, INCLUDING NEW CONSTRUCTION, MODERNIZATION, AND
CONVERSION, HAVE BEEN AFFECTED BY REASON OF THE INABILITY TO SECURE
BOILERS, COMPRESSORS, AND OTHER COMPONENT PARTS REQUIRING STEEL. 
PRODUCTS OF THE STEEL INDUSTRY ARE INDISPENSABLE TO THE MANUFACTURE OF
SUCH ITEMS AND DELAY IN THEIR PRODUCTION WILL IRREPARABLY INJURE
NATIONAL DEFENSE AND IMPERIL THE NATIONAL SAFETY. 

"(D)  EXPORTED STEEL PRODUCTS ARE VITAL TO THE SUPPORT OF UNITED
STATES BASES OVERSEAS AND FOR THE USE OF NATO ALLIES AND SIMILAR
COLLECTIVE SECURITY GROUPS.  THE STEEL STRIKE, IF PERMITTED TO
CONTINUE, WILL SERIOUSLY IMPAIR THESE PROGRAMS, THUS IMPERILING THE
NATIONAL SAFETY." 

THE PETITIONER SUGGESTS THAT A SELECTIVE REOPENING OF SOME OF THE
STEEL MILLS WOULD SUFFICE TO FULFILL SPECIFIC DEFENSE NEEDS.  THE
STATUTE WAS DESIGNED TO PROVIDE A PUBLIC REMEDY IN TIMES OF EMERGENCY;
WE CANNOT CONSTRUE IT TO REQUIRE THAT THE UNITED STATES EITHER
FORMULATE A REORGANIZATION OF THE AFFECTED INDUSTRY TO SATISFY ITS
DEFENSE NEEDS WITHOUT THE COMPLETE REOPENING OF CLOSED FACILITIES, OR
DEMONSTRATE IN COURT THE UNFEASIBILITY OF SUCH A REORGANIZATION.  THERE
IS NO ROOM IN THE STATUTE FOR THIS REQUIREMENT WHICH THE PETITIONER
SEEKS TO IMPOSE ON THE GOVERNMENT. 

WE ARE OF OPINION THAT THE PROVISION IN QUESTION AS APPLIED HERE IS
NOT VIOLATIVE OF THE CONSTITUTIONAL LIMITATION PROHIBITING COURTS FROM
EXERCISING POWERS OF A LEGISLATIVE OR EXECUTIVE NATURE, POWERS NOT
CAPABLE OF BEING CONFERRED UPON A COURT EXERCISING SOLELY "THE JUDICIAL
POWER OF THE UNITED STATES."  KELLER V. POTOMAC ELEC.  POWER CO., 261
U.S. 428; FEDERAL RADIO COMM'N V. GENERAL ELEC.  CO., 281 U.S. 464. 
PETITIONER CONTENDS THAT THE STATUTE IS CONSTITUTIONALLY INVALID
BECAUSE IT DOES NOT SET UP ANY STANDARD OF LAWFUL OR UNLAWFUL CONDUCT
ON THE PART OF LABOR OR MANAGEMENT.  BUT THE STATUTE DOES RECOGNIZE
CERTAIN RIGHTS IN THE PUBLIC TO HAVE UNIMPEDED FOR A TIME PRODUCTION IN
INDUSTRIES VITAL TO THE NATIONAL HEALTH OR SAFETY.  IT MAKES THE UNITED
STATES THE GUARDIAN OF THESE RIGHTS IN LITIGATION.  CF. UNITED STATES
V. AMERICAN BELL TEL. CO., 128 U.S. 315, 370; SANITARY DISTRICT OF
CHICAGO V. UNITED STATES, 266 U.S. 405.  THE AVAILABILITY OF RELIEF, IN
THE COMMON JUDICIAL FORM OF AN INJUNCTION, DEPENDS ON FINDINGS OF FACT,
TO BE JUDICIALLY MADE.  OF THE MATTERS DECIDED JUDICIALLY, THERE IS NO
REVIEW BY OTHER AGENCIES OF THE GOVERNMENT.  CF. GORDON V. UNITED
STATES, 2 WALL.  561, 117 U.S. 697.  WE CONCLUDE THAT THE STATUTE
ENTRUSTS THE COURTS ONLY WITH THE DETERMINATION OF A "CASE OR
CONTROVERSY," ON WHICH THE JUDICIAL POWER CAN OPERATE, NOT CONTAINING
ANY ELEMENT CAPABLE OF ONLY LEGISLATIVE OR EXECUTIVE DETERMINATION.  WE
DO NOT FIND THAT THE TERMINATION OF THE INJUNCTION AFTER A SPECIFIED
TIME, OR THE MACHINERY ESTABLISHED IN AN ATTEMPT TO OBTAIN A PEACEFUL
SETTLEMENT OF THE UNDERLYING DISPUTE DURING THE INJUNCTION'S PENDENCY,
DETRACTS FROM THIS CONCLUSION. 

THE RESULT IS THAT THE JUDGMENT OF THE COURT OF APPEALS FOR THE THIRD
CIRCUIT, AFFIRMING THAT OF THE DISTRICT COURT, IS AFFIRMED.  OUR
MANDATE SHALL ISSUE FORTHWITH.  IT IS SO ORDERED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE HARLAN:  IN JOINING THE
COURT'S OPINION WE NOTE OUR INTENTION TO FILE IN DUE COURSE AN
AMPLIFICATION OF OUR VIEWS UPON THE ISSUES INVOLVED WHICH COULD NOT BE
PREPARED WITHIN THE TIME LIMITATIONS IMPOSED BY THE NECESSITY OF A
PROMPT ADJUDICATION IN THIS CASE. 

SEPARATE OPINION OF MR. JUSTICE FRANKFURTER AND MR. JUSTICE HARLAN,
CONCURRING IN THE OPINION OF THE COURT DATED NOVEMBER 7, 1959.* 

*REPORTER'S NOTE:  THIS CONCURRING OPINION WAS FILED DECEMBER 7,
1959. 

THIS ACTION BY THE UNITED STATES FOR AN INJUNCTION UNDER SEC. 208 OF
THE LABOR MANAGEMENT RELATIONS ACT, 1947 (61 STAT. 155, 29 U.S.C. SEC.
178) WAS COMMENCED BY THE ATTORNEY GENERAL AT THE DIRECTION OF THE
PRESIDENT OF THE UNITED STATES IN THE DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA ON OCTOBER 20, 1959.  THE STRIKE WHICH WAS THE
CONCERN OF THE ACTION AROSE OUT OF A LABOR DISPUTE BETWEEN PETITIONER,
THE COLLECTIVE BARGAINING AGENT OF THE WORKERS, AND THE STEEL
COMPANIES, AND WAS NATIONWIDE IN SCOPE.  THE STRIKE BEGAN ON JULY 15,
1959, FIFTEEN DAYS AFTER THE CONTRACTS BETWEEN THE STEEL COMPANIES AND
PETITIONER EXPIRED.  ON OCTOBER 9, 1959, THE PRESIDENT CREATED THE
BOARD OF INQUIRY PROVIDED BY SECS. 206 AND 207 OF THE ACT TO INQUIRE
INTO THE ISSUES INVOLVED IN THE DISPUTE.  THE PRESIDENT DEEMED THE
STRIKE TO AFFECT A "SUBSTANTIAL PART OF  ...  AN INDUSTRY," AND
CONCLUDED THAT, IF ALLOWED TO CONTINUE, IT WOULD IMPERIL THE NATIONAL
"HEALTH AND SAFETY."  ON OCTOBER 19 THE BOARD SUBMITTED ITS REPORT,
WHICH CONCLUDED:  "THE PARTIES HAVE FAILED TO REACH AN AGREEMENT AND WE
SEE NO PROSPECTS FOR AN EARLY CESSATION OF THE STRIKE.  THE BOARD
CANNOT POINT TO ANY SINGLE ISSUE OF ANY CONSEQUENCE WHATSOEVER UPON
WHICH THE PARTIES ARE IN AGREEMENT."  THE PRESIDENT FILED THE REPORT
WITH THE FEDERAL MEDIATION AND CONCILIATION SERVICE AND MADE ITS
CONTENTS PUBLIC, IN ACCORDANCE WITH SEC. 206, AND ORDERED THE ATTORNEY
GENERAL TO COMMENCE THIS ACTION, REITERATING HIS FORMER PRONOUNCEMENTS
THAT THE CONTINUANCE OF THE STRIKE CONSTITUTED A THREAT TO THE NATIONAL
HEALTH AND SAFETY. 

PURSUANT TO STIPULATIONS OF THE PARTIES, THE DISTRICT COURT HEARD THE
CASE ON AFFIDAVITS.  ON OCTOBER 21 IT GRANTED THE INJUNCTION.  ITS
ORDER WAS STAYED BY THE COURT OF APPEALS FOR THE THIRD CIRCUIT, PENDING
THAT COURT'S FINAL DETERMINATION OF PETITIONER'S APPEAL.  ON OCTOBER 27
IT AFFIRMED THE DECISION OF THE DISTRICT COURT (ONE JUDGE DISSENTING)
AND GRANTED AN ADDITIONAL STAY TO ENABLE PETITIONER TO SEEK RELIEF
HERE.  ON OCTOBER 28 THIS COURT DENIED THE MOTION OF THE UNITED STATES
TO MODIFY THE STAY.  ON OCTOBER 30 WE GRANTED CERTIORARI, SET THE
ARGUMENT DOWN FOR NOVEMBER 2, AND EXTENDED THE STAY PENDING FINAL
DISPOSITION.  IN A PER CURIAM OPINION ON NOVEMBER 7, THIS COURT
AFFIRMED THE DECISION OF THE COURT OF APPEALS, MR. JUSTICE DOUGLAS
DISSENTING.  WE NOTED OUR INTENTION TO SET FORTH AT A LATER TIME THE
GROUNDS FOR OUR AGREEMENT WITH THE COURT'S DISPOSITION AND NOT DELAY
ANNOUNCEMENT OF THE RESULT UNTIL SUCH A STATEMENT COULD BE PREPARED. 

THE INJUNCTION WAS CHALLENGED ON THREE GROUNDS:  (1) THE LOWER COURTS
WERE NOT ENTITLED TO FIND THAT THE NATIONAL EMERGENCY, UPON WHICH THE
DISTRICT COURT'S JURISDICTION IS DEPENDENT UNDER SEC. 208, EXISTED; (2)
EVEN IF THE EMERGENCY EXISTED, THE DISTRICT COURT FAILED TO EXERCISE
THE DISCRETION, CLAIMED TO BE OPEN TO IT UNDER SEC. 208, WHETHER OR NOT
TO GRANT THE RELIEF SOUGHT BY THE UNITED STATES; (3) EVEN IF THE
INJUNCTION WAS OTHERWISE UNASSAILABLE IT SHOULD HAVE BEEN DENIED
BECAUSE SEC. 208 SEEKS TO CHARGE THE DISTRICT COURTS WITH A DUTY
OUTSIDE THE SCOPE OF "JUDICIAL POWER" EXERCISABLE UNDER ART. III, SEC.
2, OF THE CONSTITUTION. 

TO ENJOIN" A "THREATENED OR ACTUAL STRIKE OR LOCK-OUT" IF THE COURT
FINDS THAT IT "(I) AFFECTS AN ENTIRE INDUSTRY OR A SUBSTANTIAL PART
THEREOF ENGAGED IN  ...  COMMERCE  ...  OR ENGAGED IN THE PRODUCTION OF
GOODS FOR COMMERCE; AND (II) IF PERMITTED TO OCCUR OR TO CONTINUE, WILL
IMPERIL THE NATIONAL HEALTH OR SAFETY ...  . "  THE DISTRICT COURT
FOUND, AND IT WAS NOT CONTESTED HERE, THAT THE STRIKE SATISFIED THE
FIRST CONDITION IN THAT IT AFFECTED A SUBSTANTIAL PORTION OF THE STEEL
INDUSTRY.  PETITIONER URGED, HOWEVER, THAT THE LOWER COURTS HAD NO
BASIS FOR CONCLUDING THAT IT SATISFIED THE SECOND. 

IN ITS FINDING OF FACT NO. 15, THE DISTRICT COURT DESCRIBED FOUR
INSTANCES OF SERIOUS IMPEDIMENT TO NATIONAL DEFENSE PROGRAMS AS A
RESULT OF EXISTING AND PROSPECTIVE PROCUREMENT PROBLEMS DUE TO THE
STRIKE.  THE PROGRAMS AFFECTED INCLUDED THE MISSILE, NUCLEAR SUBMARINE
AND NAVAL SHIPBUILDING, AND SPACE PROGRAMS.  EACH OF THESE FINDINGS
HAD, AS THE COURT OF APPEALS FOUND, AMPLE SUPPORT IN THE AFFIDAVITS
SUBMITTED BY THE UNITED STATES.  ACCORDING TO THE AFFIDAVIT OF THOMAS
S. GATES, JR., ACTING SECRETARY OF DEFENSE, DELAYS IN DELIVERY OF
MATERIALS CRITICAL TO THE CREATION OF THE ATLAS, TITAN AND POLARIS
MISSILE SYSTEMS HAD BECOME SO SEVERE THAT EACH ADDITIONAL DAY OF THE
STRIKE WOULD RESULT IN AN EQUAL DELAY IN PROJECT COMPLETION; AND A
"SIGNIFICANT PORTION OF THE STEEL SPECIFIED IN THE PROCUREMENT
CONTRACTS IS OF A COMPOSITION NOT COMMON TO COMMERCIAL USAGE NOR
AVAILABLE FROM EXISTING CIVILIAN INVENTORIES BY EXERCISE OF ALLOCATION
OR EMINENT DOMAIN POWERS OF THE GOVERNMENT ...  .  THESE PROGRAMS IN
MANY CASES REQUIRE SPECIAL SIZES AND SHAPES, MANY OF WHICH CAN BE
FABRICATED ONLY BY FIRMS HAVING A LONG EXPERIENCE IN THEIR PRODUCTION
AND THE NECESSARY SPECIAL FACILITIES THEREFOR  ...  ." 

THE AFFIDAVIT OF HUGH L. DRYDEN, DEPUTY ADMINISTRATOR OF THE
AERONAUTICS AND SPACE ADMINISTRATION, STATED, IN SOME DETAIL, THAT
SPACE PROJECTS, INCLUDING TRACKING CENTERS, ROCKET ENGINE TEST STANDS,
AND OTHER CRITICAL FACILITIES, WERE, AT THE TIME OF THE HEARING IN THE
DISTRICT COURT, ALREADY SUBJECTED TO DELAYS OF AS MUCH AS SEVEN WEEKS,
WITH LONGER DELAYS ANTICIPATED FROM THE CONTINUATION OF THE STRIKE. 
THE AFFIDAVIT OF A.R. LUEDECKE, THE GENERAL MANAGER OF THE ATOMIC
ENERGY COMMISSION, STATED THAT MINOR DELAYS IN PROJECTS HAD, AT THE
TIME OF ITS MAKING, ALREADY BEEN EXPERIENCED IN CRITICAL PROGRAMS OF
THE ATOMIC ENERGY COMMISSION, AND THAT IF THE STRIKE SHOULD CONTINUE
INTO 1960 "THERE WOULD BE AN APPRECIABLE EFFECT UPON THE WEAPONS
PROGRAM." 

IN VIEW OF SUCH DEMONSTRATED UNAVAILABILITY OF DEFENSE MATERIALS IT
IS IRRELEVANT THAT, AS PETITIONER CONTENDED AND THE UNITED STATES
CONCEDED, SOMEWHAT IN EXCESS OF 15% OF THE STEEL INDUSTRY REMAINED
UNAFFECTED BY THE STOPPAGE, AND THAT ONLY ABOUT 1% OF THE GROSS STEEL
PRODUCT IS ORDINARILY ALLOCATED TO DEFENSE PRODUCTION. 

HOWEVER, PETITIONER ALSO CONTESTED THE SUFFICIENCY OF THE AFFIDAVITS
ON THE GROUND THAT THEY DID NOT PRESENT THE FACTS GIVING RISE TO THE
ASSERTED EMERGENCIES WITH SUFFICIENT PARTICULARITY TO JUSTIFY THE
FINDINGS MADE.  THIS OBJECTION RAISES AN ISSUE WHICH WAS ESSENTIALLY
FOR THE TRIER OF FACT, AND THE TWO LOWER COURTS FOUND THE AFFIDAVITS
SUFFICIENT.  IT IS NOT FOR THE JUDICIARY TO CANVASS THE COMPETENCE OF
OFFICERS OF CABINET RANK, WITH RESPONSIBILITY ONLY BELOW THAT OF THE
PRESIDENT FOR THE MATTERS TO WHICH THEY SPEAK UNDER OATH, TO EXPRESS
THE OPINIONS SET FORTH IN THESE AFFIDAVITS.  FINDINGS BASED DIRECTLY
UPON THEM SURELY CANNOT BE SAID TO BE "CLEARLY ERRONEOUS."  FED. RULES
CIV. PROC., 52(A). 

MOREOVER, UNDER SEC. 208 THE TRIER OF THESE FACTS WAS CALLED UPON TO
MAKE A JUDGMENT ALREADY TWICE MADE BY THE PRESIDENT OF THE UNITED
STATES:  ONCE WHEN HE CONVENED THE BOARD OF INQUIRY; AND ONCE WHEN HE
DIRECTED THE ATTORNEY GENERAL TO COMMENCE THIS ACTION.  HIS REASONED
JUDGMENT WAS PRESUMABLY BASED UPON THE FACTS WE HAVE SUMMARIZED, AND IT
IS NOT FOR US TO SET ASIDE FINDINGS CONSISTENT WITH THEM.  THE
PRESIDENT'S JUDGMENT IS NOT CONTROLLING; SEC. 208 MAKES IT THE COURT'S
DUTY TO "FIND" THE REQUISITE JURISDICTIONAL FACT FOR ITSELF.  BUT IN
THE DISCHARGE OF ITS DUTY A DISTRICT COURT WOULD DISREGARD REASON NOT
TO GIVE DUE WEIGHT TO DETERMINATIONS PREVIOUSLY MADE BY THE PRESIDENT,
WHO IS, AFTER ALL, THE ULTIMATE CONSTITUTIONAL EXECUTIVE REPOSITORY FOR
ASSURING THE SAFETY OF THE NATION, AND UPON WHOSE JUDGMENT THE
INVOCATION OF THE EMERGENCY PROVISIONS DEPENDS. 

THE PETITIONER NEXT ASSERTED THAT THE FINDINGS MADE WERE INSUFFICIENT
AS A MATTER OF LAW TO SUPPORT THE DISTRICT COURT'S JURISDICTION UNDER
SEC. 208.  CONCEDING THAT PERIL TO THE NATIONAL DEFENSE IS PERIL TO THE
NATIONAL SAFETY, IT ASSERTED THAT THE PERIL TO THE NATIONAL SAFETY
WHICH IS MADE AN ELEMENT OF THE COURT'S JURISDICTION BY PART (II) OF
SEC. 208(A) MUST RESULT FROM THE SUBSTANTIAL CHARACTER OF THE EFFECT
UPON AN INDUSTRY REQUIRED BY PART (I), AND THAT IF IT DOES NOT SO
RESULT A DISTRICT COURT IS WITHOUT POWER TO ENJOIN THE STOPPAGE OR ANY
PART OF IT. ALTERNATIVELY, IT URGED THAT THE JURISDICTION WHICH IS
CONFERRED BY THE SECTION IS LIMITED TO RELIEF AGAINST SUCH PART OF THE
TOTAL STOPPAGE AS IS FOUND TO BE THE CAUSE IN FACT OF THE PERIL. 
PETITIONER CLAIMED THAT AS A MATTER OF FACT THE PROCUREMENT
EMBARRASSMENTS FOUND BY THE COURTS BELOW WERE THE RESULT NOT OF THE
ENTIRE STEEL STOPPAGE OR EVEN OF A SUBSTANTIAL PART OF IT, BUT ONLY OF
THE CLOSING OF A "HANDFUL" OF THE HUNDREDS OF PLANTS AFFECTED; AND THAT
THEREFORE THE ENTIRE INDUSTRY-WIDE STRIKE SHOULD NOT HAVE BEEN ENJOINED
UNDER EITHER CONSTRUCTION OF SEC. 208 WHICH IT ASSERTED. 

IN THE FIRST PLACE, THE REQUISITE FACT WAS FOUND AGAINST PETITIONER'S
CONTENTION.  THE COURT OF APPEALS FOUND THAT "THE STEEL INDUSTRY IS TOO
VAST AND TOO COMPLICATED TO BE SEGMENTED" SO AS TO ALLEVIATE THE
EXISTING AND FORESEEABLE PERIL TO THE NATIONAL DEFENSE BY THE MERE
REOPENING OF A FEW PLANTS.  IT EXPRESSLY RELIED UPON THE AFFIDAVIT OF
DR. RAYMOND J. SAULNIER, CHAIRMAN OF THE COUNCIL OF ECONOMIC ADVISERS
OF THE FEDERAL GOVERNMENT, WHICH WAS BEFORE BOTH THE LOWER COURTS.  DR.
SAULNIER STATED THAT: 

"STEEL IS PRODUCED THROUGH CLOSELY INTERRELATED PROCESSES THAT OFTEN
CANNOT BE SEPARATED TECHNICALLY OR ECONOMICALLY TO ALLOW PRODUCTION OF
ITEMS 'NEEDED'  ...  WHILE OMITTING ITEMS 'NOT NEEDED.'  ...  'IN ORDER
TO SATISFY DEFENSE REQUIREMENTS ALONE FROM THE STANDPOINT OF SIZE,
GRADE, AND PRODUCT, IT WOULD BE NECESSARY TO REACTIVATE 25 TO 30 HOT
ROLLING MILLS TOGETHER WITH SUPPORTING BLAST FURNACES, AND BESSEMER,
ELECTRIC, OPEN HEARTH AND VACUUM-MELTING FURNACES.  ADDITIONAL
FACILITIES FOR PICKLING, COATING, HEAT TREATING, COLD FINISHING,
SHEARING, CUTTING, TESTING, AND THE LIKE WOULD ALSO BE REQUIRED.  TO
REOPEN THESE PLANTS FOR THE PRODUCTION OF STEEL PRODUCTS TO MEET ONLY
DEFENSE REQUIREMENTS WOULD BE TOTALLY IMPRACTICABLE.  THE PROBLEMS OF
SCHEDULING THE LIMITED TONNAGES INVOLVED, PLUS THE COST AND TECHNICAL
DIFFICULTY OF START-UPS AND SHUT-DOWNS WOULD APPEAR TO BE
INSURMOUNTABLE.'" 

THE LOWER COURTS HAD BEFORE THEM, AS DID THIS COURT, THE CONFLICTING
AFFIDAVIT OF ROBERT NATHAN, THE ECONOMIST FOR THE STEELWORKERS.  BUT
THE TRIER OF FACT WAS NOT BOUND TO PREFER THE ARGUMENTS, HOWEVER
WEIGHTY, OF PETITIONER'S ECONOMIST, HOWEVER ESTIMABLE, AS AGAINST THE
VIEWS OF THE HIGHEST OFFICERS IN THE LAND AND THEIR ECONOMIC ADVISERS
REGARDING THE MEANS FOR SECURING NECESSARY DEFENSE MATERIALS. 

NOR WAS IT A REFUTATION OF THE FINDING OF THE COURT OF APPEALS TO
SUGGEST, AS PETITIONER DID HERE, THAT "NEEDED" FACILITIES MIGHT BE
OPENED FOR ALL PURPOSES.  THE PROBLEM IS SELF-EVIDENTLY ONE OF
PROGRAMMING MONTHS IN ADVANCE EVERY SPECIALIZED COMMODITY NEEDED FOR
DEFENSE PURPOSES, A PROJECT WHICH ITSELF WOULD REQUIRE MONTHS OF EFFORT
AND THE DELAYS SUCH EFFORT WOULD ENTAIL.  OTHER OBVIOUS DIFFICULTIES
ARE NOT LESS FORMIDABLE.  UPON WHAT BASIS WOULD THE PLANTS TO BE
REOPENED BE CHOSEN, ASSUMING THE NUMBER OF PLANTS NEEDED COULD BE
DETERMINED?  ACCORDING TO WHAT STANDARD WOULD THE PRODUCTION OF
PARTICULAR COMPLEXES OF PLANTS BE REGULATED?  WHAT OF PROBLEMS OF COST
AND OVERHEAD, AND THE COST OF AND TIME REQUIRED FOR INTRA-COMPANY
PLANNING TO DETERMINE THE PRACTICALITY OF PARTIALLY RESTRICTING THE
OPERATION OF GIANT COMPLEXES SUCH AS THOSE OF THE MAJOR PRODUCERS? 

NO DOUBT A DISTRICT COURT IS NORMALLY CHARGED WITH THE DUTY OF
INDEPENDENTLY SHAPING THE DETAILS OF A DECREE WHEN SITTING IN EQUITY IN
CONTROVERSIES THAT INVOLVE SIMPLE AND RELATIVELY FEW FACTORS - FACTORS,
THAT IS, FAR LESS IN NUMBER, LESS COMPLICATED AND LESS INTERRELATED
THAN IN THE CASE BEFORE US.  BUT A COURT IS NOT QUALIFIED TO DEVISE
SCHEMES FOR THE CONDUCT OF AN INDUSTRY SO AS TO ASSURE THE SECURING OF
NECESSARY DEFENSE MATERIALS.  IT IS NOT COMPETENT TO SIT IN JUDGMENT ON
THE EXISTING DISTRIBUTION OF FACTORS IN THE CONDUCT OF AN INTEGRATED
INDUSTRY TO ASCERTAIN WHETHER IT CAN BE SEGMENTED WITH A VIEW TO ITS
REORGANIZATION FOR THE SUPPLY EXCLUSIVELY, OR EVEN PRIMARILY, OF
GOVERNMENT-NEEDED MATERIALS.  NOR IS IT ABLE TO READJUST OR ADEQUATELY
TO REWEIGH THE FORCES OF ECONOMIC COMPETITION WITHIN THE INDUSTRY OR TO
APPRAISE THE RELEVANCE OF SUCH FORCES IN CARRYING OUT A DEFENSE PROGRAM
FOR THE GOVERNMENT.  AGAINST ALL SUCH ASSUMPTIONS OF COMPETENCE, THE
FINDING OF THE COURT OF APPEALS WAS AMPLY SUPPORTED BY THE RECORD. 

EVEN WITHOUT SUCH A FINDING, HOWEVER, PETITIONER'S CONTENTION WOULD
FAIL.  THERE ARE CONTROLLING REASONS FOR CONCLUDING THAT SEC. 208
NEITHER IMPOSES UPON THE UNITED STATES, AS A CONDITION FOR SECURING AN
INJUNCTION, THE BURDEN OF ESTABLISHING THAT THE PERIL SHOWN PROCEEDS
FROM THE UNAVAILABILITY OF A "SUBSTANTIAL NUMBER" OF PARTICULAR
FACILITIES, NOR LIMITS THE SCOPE OF THE COURT'S INJUNCTIVE PROCESS TO
SUCH PART OF THE TOTAL STOPPAGE AS APPEARS TO BE THE CAUSE IN FACT OF
THE PERIL. 

FIRST, ON ITS FACE SEC. 208 STATES TWO SEPARATE CRITERIA, BOTH OF
WHICH MUST BE SATISFIED BEFORE AN INJUNCTION MAY ISSUE AGAINST A
STRIKE, AND IT STATES NO OTHER RELATIONSHIP BETWEEN THEM THAN THAT BOTH
MUST PROCEED FROM "SUCH STRIKE."  NO OTHER RELATIONSHIP IS SUGGESTED BY
THE LEGISLATIVE HISTORY OF THESE EMERGENCY PROVISIONS.  THERE IS,
ACCORDINGLY, NO FOUNDATION FOR THE DRASTIC LIMITATION ON THEIR SCOPE
WHICH WOULD BE IMPOSED IF PETITIONER'S CONTENTION HAD BEEN ADOPTED,
THAT A DISTRICT COURT IS WITHOUT JURISDICTION UNLESS THE ABSTRACT
QUANTITATIVELY SUBSTANTIAL CHARACTER OF THE EFFECT OF THE STOPPAGE IS
FOUND TO BE THE CAUSE IN FACT OF THE PERIL. 

THE LEGISLATIVE HISTORY CONFIRMS WHAT THE PROVISIONS THEMSELVES AMPLY
REVEAL, THAT THIS PORTION OF THE TAFT-HARTLEY ACT CONTAINS A DUAL
PURPOSE, ON THE ONE HAND TO ALLEVIATE, AT LEAST TEMPORARILY, A THREAT
TO THE NATIONAL HEALTH OR SAFETY; AND ON THE OTHER TO PROMOTE
SETTLEMENT OF THE UNDERLYING DISPUTE OF INDUSTRY-WIDE EFFECT.  THE
FORMER PURPOSE IS TO BE ACCOMPLISHED BY THE INJUNCTION, AND BY WHATEVER
ADDITIONAL REMEDIES THE PRESIDENT MAY SEEK AND THE CONGRESS GRANT IN
PURSUANCE OF THE COMMAND OF SEC. 210 OF THE ACT THAT THE MATTER BE
RETURNED TO CONGRESS BY THE PRESIDENT WITH FULL REPORT IN THE EVENT OF
A FAILURE OF SETTLEMENT WITHIN THE INJUNCTION PERIOD.  THE LATTER
PURPOSE IS TO BE ACCOMPLISHED BY THE COMMAND OF SEC. 209 THAT THE
PARTIES TO THE DISPUTE "MAKE EVERY EFFORT TO ADJUST AND SETTLE THEIR
DIFFERENCES"; BY THE SECRET BALLOT OF EMPLOYEES PROVIDED BY SEC. 209
WITH REFERENCE TO THE LAST OFFER OF THE COMPANIES; AND FINALLY BY
FURTHER ACTION BY THE PRESIDENT AND CONGRESS PURSUANT TO SEC. 210.  TO
HOLD, AS PETITIONER ALTERNATIVELY URGED, THAT A DISTRICT COURT MAY
ENJOIN ONLY THAT PART OF THE TOTAL STOPPAGE WHICH IS SHOWN TO BE THE
CAUSE IN FACT OF THE PERIL, WOULD AT BEST SERVE ONLY THE PURPOSE OF
ALLEVIATING THE PERIL, WHILE STULTIFYING THE PROVISIONS DESIGNED TO
EFFECT SETTLEMENT OF THE UNDERLYING DISPUTE. 

SECOND, THE EVIDENTIARY BURDENS UPON THE GOVERNMENT WHICH WOULD HAVE
RESULTED FROM THE ADOPTION OF EITHER OF THE CONSTRUCTIONS URGED BY
PETITIONER WOULD TEND TO CRIPPLE THE DESIGNED EFFECTIVENESS OF THE
ACT.  IT IS EXTREMELY DOUBTFUL WHETHER IN STRIKES OF NATIONAL
PROPORTION INFORMATION WOULD BE AVAILABLE TO THE UNITED STATES WITHIN A
REASONABLE TIME TO ENABLE IT TO SHOW THAT PARTICULAR CRITICAL ORDERS
WERE PLACED WITH PARTICULAR FACILITIES NO LONGER AVAILABLE; OR WHETHER
THE UNITED STATES COULD, WITHIN SUCH TIME, EFFECT A THEORETICAL
REORGANIZATION OF ITS PROCUREMENT PROGRAM SO AS TO DEMONSTRATE TO A
COURT THAT IT CANNOT SUCCESSFULLY BE CONDUCTED WITHOUT THE REOPENING OF
PARTICULAR FACILITIES. 

FINALLY, SEC. 208 IS NOT TO BE CONSTRUED NARROWLY, AS IF IT WERE
MERELY AN EXCEPTION TO THE POLICIES WHICH LED TO THE RESTRICTIONS ON
THE USE OF INJUNCTIONS IN LABOR DISPUTES EMBODIED IN THE NORRIS
LAGUARDIA ACT, 47 STAT. 70 (1932), 29 U.S.C. SECS. 101-115.  TOTALLY
DIFFERENT POLICIES LED TO THE ENACTMENT OF THE NATIONAL EMERGENCY
PROVISIONS OF THE 1947 ACT.  THE LEGISLATIVE HISTORY OF THESE
PROVISIONS IS REPLETE WITH EVIDENCE OF THE CONCERN OF BOTH THE
PROPONENTS AND THE OPPONENTS OF THE BILL TO DEAL EFFECTIVELY WITH LARGE
SCALE WORK STOPPAGES WHICH ENDANGER THE PUBLIC HEALTH OR SAFETY.  TO
STOP OR PREVENT PUBLIC INJURY, BOTH MANAGEMENT AND LABOR WERE BROUGHT
WITHIN THE SCOPE OF THE INJUNCTIVE POWER, AND BOTH WERE SUBJECTED TO
THE COMMAND TO "MAKE EVERY EFFORT TO ADJUST AND SETTLE THEIR
DIFFERENCES  ...  ."  SEC. 209.  THE PREAMBLE TO THE ACT SUCCINCTLY
STATES THIS PURPOSE: 

"INDUSTRIAL STRIFE WHICH INTERFERES WITH THE NORMAL FLOW OF COMMERCE
...  CAN BE AVOIDED OR SUBSTANTIALLY MINIMIZED IF EMPLOYERS, EMPLOYEES,
AND LABOR ORGANIZATIONS EACH  ...  ABOVE ALL RECOGNIZE UNDER LAW THAT
NEITHER PARTY HAS ANY RIGHT IN ITS RELATIONS WITH ANY OTHER TO ENGAGE
IN ACTS OR PRACTICES WHICH JEOPARDIZE THE PUBLIC HEALTH, SAFETY, OR
INTEREST  ...  ."  LABOR MANAGEMENT RELATIONS ACT, 1947, SEC. 1(B), 61
STAT. 136, 29 U.S.C. SEC. 141(B). 

THE NORRIS-LAGUARDIA ACT HAD LIMITED THE POWER OF THE FEDERAL COURTS
TO EMPLOY INJUNCTIONS TO AFFECT LABOR DISPUTES.  THE PURPOSE OF THAT
ACT WAS RIGOROUSLY TO DEFINE THE CONDITIONS UNDER WHICH FEDERAL COURTS
WERE EMPOWERED TO ISSUE INJUNCTIONS IN INDUSTRIAL CONTROVERSIES AS
BETWEEN EMPLOYERS AND EMPLOYEES, AND TO DEVISE A SAFEGUARDING PROCEDURE
FOR THE INTERVENTION OF THE FEDERAL JUDICIARY IN THE COURSE OF PRIVATE
LITIGATION.  IT IS NOT WITHOUT SIGNIFICANCE THAT THIS ACT WAS FOUND NOT
TO DEPRIVE A FEDERAL COURT OF JURISDICTION TO ISSUE AN INJUNCTION AT
THE BEHEST OF THE GOVERNMENT AS INDUSTRIAL OPERATOR.  UNITED STATES V.
UNITED MINE WORKERS OF AMERICA, 330 U.S. 258.  MOREOVER, AS THE
PREAMBLE TO THE NORRIS-LAGUARDIA ACT INDICATED, THE FORMULATION OF
POLICY OF THAT STATUTE WAS MADE IN 1932 "UNDER PREVAILING ECONOMIC
CONDITIONS."  CONGRESS AT DIFFERENT TIMES AND FOR DIFFERENT PURPOSES
MAY GAUGE THE DEMANDS OF "PREVAILING ECONOMIC CONDITIONS" DIFFERENTLY
OR WITH REFERENCE TO CONSIDERATIONS OUTSIDE MERELY "ECONOMIC
CONDITIONS."  HERE CONGRESS HAS MADE THE APPRAISAL THAT THE INTERESTS
OF BOTH PARTIES MUST BE SUBORDINATED TO THE OVERRIDING INTEREST OF THE
NATION.  THE FOLLOWING OBSERVATIONS OF MR. JUSTICE BRANDEIS ARE
APPOSITE:    "BECAUSE I HAVE COME TO THE CONCLUSION THAT BOTH THE
COMMON LAW OF A STATE AND A STATUTE OF THE UNITED STATES DECLARE THE
RIGHT OF INDUSTRIAL COMBATANTS TO PUSH THEIR STRUGGLE TO THE LIMITS OF
THE JUSTIFICATION OF SELF-INTEREST, I DO NOT WISH TO BE UNDERSTOOD AS
ATTACHING ANY CONSTITUTIONAL OR MORAL SANCTION TO THAT RIGHT.  ALL
RIGHTS ARE DERIVED FROM THE PURPOSES OF THE SOCIETY IN WHICH THEY
EXIST; ABOVE ALL RIGHTS RISES DUTY TO THE COMMUNITY.  THE CONDITIONS
DEVELOPED IN INDUSTRY MAY BE SUCH THAT THOSE ENGAGED IN IT CANNOT
CONTINUE THEIR STRUGGLE WITHOUT DANGER TO THE COMMUNITY.  BUT IT IS NOT
FOR JUDGES TO DETERMINE WHETHER SUCH CONDITIONS EXIST, NOR IS IT THEIR
FUNCTION TO SET THE LIMITS OF PERMISSIBLE CONTEST AND TO DECLARE THE
DUTIES WHICH THE NEW SITUATION DEMANDS.  THIS IS THE FUNCTION OF THE
LEGISLATURE WHICH, WHILE LIMITING INDIVIDUAL AND GROUP RIGHTS OF
AGGRESSION AND DEFENSE, MAY SUBSTITUTE PROCESSES OF JUSTICE FOR THE
MORE PRIMITIVE METHOD OF TRIAL BY COMBAT."  DUPLEX PRINTING PRESS CO.
V. DEERING, 254 U.S. 443, 488 (1921)(DISSENT). 

THESE SECTIONS WERE DESIGNED TO PROVIDE MACHINERY FOR SAFEGUARDING
THE COMPREHENSIVE INTEREST OF THE COMMUNITY, AND TO PROMOTE THE
NATIONAL POLICY OF COLLECTIVE BARGAINING.  THEY MUST BE CONSTRUED TO
GIVE FULL EFFECT TO THE PROTECTIONS THEY SEEK TO AFFORD. 

PETITIONER'S FINAL CONTENTION WITH REGARD TO THE STATUTORY STANDARD
OF PERIL TO THE NATIONAL SAFETY APPEARS TO HAVE BEEN THAT THE UNITED
STATES MUST RESORT TO OTHER MODES OF RELIEF THAN THIS ACT TO MEET THE
NATIONAL PERIL CREATED BY A STOPPAGE IN A SUBSTANTIAL PART OF AN
INDUSTRY, BEFORE SUCH PERIL CAN BE SAID TO EXIST OR BE THREATENED.  IN
SUBSTANCE PETITIONER URGED: (1) THAT THE UNITED STATES HAS POWERS UNDER
THE DEFENSE PRODUCTION ACT OF 1950, 64 STAT. 798, 50 U.S.C. APP. SEC.
2061, THE EXERCISE OF WHICH WOULD, EVEN DURING THE COURSE OF THESE
PROCEEDINGS, HAVE PERMITTED IT TO ALLEVIATE THE CRITICAL SHORTAGES
WHICH IN FACT RESULTED OR THREATENED TO RESULT FROM THE STRIKE; AND (2)
THAT THE UNITED STATES FAILED TO REVEAL TO PETITIONER OR TO THE COURTS
WHAT PLANTS MIGHT HAVE BEEN REOPENED SO AS TO REMOVE THE PERIL TO THE
NATIONAL DEFENSE.  IN THE LIGHT OF WHAT WE HAVE ALREADY SAID, IT IS
APPARENT THAT NEITHER OF THESE MATTERS IS RELEVANT TO THE JUDICIAL
DETERMINATION REQUIRED BY SEC. 208.  THE REMEDY AVAILABLE TO THE UNITED
STATES UNDER THESE PROVISIONS IS INDEPENDENT OF OTHER POWERS POSSESSED
BY IT AND IS NOT ENCUMBERED BY ANY BURDEN UPON IT TO SEEK TO PERSUADE
OR ENABLE THE DEFENDANTS TO EFFECT A PIECEMEAL ALTERATION OF THEIR
CONDUCT TO AVOID THE COURT'S JURISDICTION. 

BECAUSE THE DISTRICT COURT'S FINDING OF PERIL TO THE NATIONAL SAFETY
RESULTING FROM IMPEDIMENTS TO THE PROGRAMS FOR NATIONAL DEFENSE WAS
ITSELF SUFFICIENT TO SATISFY THE REQUIREMENT OF SEC. 208(A)(II), IT IS
NOT NECESSARY TO DETERMINE WHETHER PERILS TO DEFENSE EXHAUST THE SCOPE
OF "SAFETY" AS USED IN THIS STATUTE, OR TO CONSIDER ITS FINDINGS WITH
REGARD TO PERIL TO THE NATIONAL HEALTH. 

HAVING DECIDED THAT THE STRIKE WAS ONE WHICH CREATED A NATIONAL
EMERGENCY WITHIN THE TERMS OF THE STATUTE, THE NEXT QUESTION IS
WHETHER, UPON THAT FINDING ALONE, THE "EIGHTY-DAY" INJUNCTION FOR WHICH
THE GOVERNMENT PRAYED SHOULD HAVE ISSUED, OR WHETHER THE DISTRICT COURT
WAS TO EXERCISE THE CONVENTIONAL DISCRETIONARY FUNCTION OF EQUITY IN
BALANCING CONVENIENCES AS A PRELIMINARY TO ISSUING AN INJUNCTION.  THE
PETITIONER ARGUED THAT UNDER THE ACT A DISTRICT COURT HAS "DISCRETION"
WHETHER TO ISSUE AN "EIGHTY-DAY" INJUNCTION, EVEN THOUGH A NATIONAL
EMERGENCY BE FOUND.  IT ARGUED THAT THE DISTRICT JUDGE IN THIS CASE DID
NOT CONSIDER THAT HE HAD SUCH "DISCRETION."  ALTERNATIVELY, IT ARGUED
THAT IF THE DISTRICT JUDGE DID EXERCISE "DISCRETION" HE ABUSED IT, FOR
THE BROAD INJUNCTIVE RELIEF HE GRANTED WAS NOT JUSTIFIABLE IN THIS
CASE.  THE CONTENTION WAS THAT THE RELIEF HAD THE EFFECT OF HINDERING
RATHER THAN PROMOTING A VOLUNTARY SETTLEMENT OF THE DISPUTE, AND OF
UNNECESSARILY COERCING HUNDREDS OF THOUSANDS OF EMPLOYEES, WHEN AN
INJUNCTION OF ONLY A SMALL PART OF THE STRIKE, OR OTHER NON-INJUNCTIVE
REMEDIES, ASSERTEDLY LESS DRASTIC, WERE AVAILABLE, AND WOULD HAVE
EQUALLY WELL AVERTED THE THREAT TO PUBLIC SAFETY.  WE DO NOT THINK IT
NECESSARY TO EMBARK UPON THE SPECULATIVE CONSIDERATION WHETHER THE
DISTRICT JUDGE IN FACT MADE A DISCRETIONARY DETERMINATION, AND, IF HE
DID, WHETHER THAT DETERMINATION WAS JUSTIFIABLE.  WE CONCLUDE THAT
UNDER THE NATIONAL EMERGENCY PROVISIONS OF THE LABOR MANAGEMENT
RELATIONS ACT IT IS NOT FOR JUDGES TO EXERCISE CONVENTIONAL
"DISCRETION" TO WITHHOLD AN "EIGHTY-DAY" INJUNCTION UPON A BALANCING OF
CONVENIENCES. 

"DISCRETIONARY" JURISDICTION IS EXERCISED WHEN A GIVEN INJUNCTIVE
REMEDY IS NOT COMMANDED AS A MATTER OF POLICY BY CONGRESS, BUT IS, AS A
PRESUPPOSITION OF JUDGE-MADE LAW, LEFT TO JUDICIAL DISCRETION.  SUCH IS
NOT THE CASE UNDER THIS STATUTE.  THE PURPOSE OF CONGRESS EXPRESSED BY
THE SCHEME OF THIS STATUTE PRECLUDES ORDINARY EQUITABLE DISCRETION.  IN
THIS RESPECT WE THINK THE ROLE OF THE DISTRICT COURTS UNDER THIS
STATUTE IS LIKE THE ROLE OF THE COURTS OF APPEALS UNDER PROVISIONS FOR
REVIEW BY THEM OF THE ORDERS OF VARIOUS ADMINISTRATIVE AGENCIES, SUCH
AS THE NATIONAL LABOR RELATIONS BOARD.  29 U.S.C. SEC. 160(E).  THIS
COURT HAS HELD THAT IF THE BOARD'S FINDINGS ARE SUSTAINED, THE REMEDY
IT THOUGHT APPROPRIATE MUST BE ENFORCED.  LABOR BOARD V. BRADFORD
DYEING ASSN., 310 U.S. 318. 

IN THE NATIONAL EMERGENCY PROVISIONS OF THE LABOR MANAGEMENT
RELATIONS ACT, CONGRESS HAS WITH PARTICULARITY DESCRIBED THE DURATION
OF THE INJUNCTION TO BE GRANTED AND THE NATURE OF SPECIFIC COLLATERAL
ADMINISTRATIVE PROCEDURES WHICH ARE TO BE SET IN MOTION UPON ITS
ISSUANCE.  WE THINK THE CONCLUSION COMPELLING THAT CONGRESS HAS THEREBY
MANIFESTED THAT A DISTRICT COURT IS NOT TO INDULGE ITS OWN JUDGMENT
REGARDING THE WISDOM OF THE RELIEF CONGRESS HAS DESIGNED.  CONGRESS
EXPRESSED ITS OWN JUDGMENT AND DID NOT LEAVE IT TO A DISTRICT COURT. 
THE STATUTE EMBODIES A LEGISLATIVE DETERMINATION THAT THE PARTICULAR
RELIEF DESCRIBED IS APPROPRIATE TO THE EMERGENCY, WHEN ONE IS FOUND TO
EXIST.  MOREOVER, IT IS A PRIMARY PURPOSE OF THE ACT TO STOP THE
NATIONAL EMERGENCY AT LEAST FOR EIGHTY DAYS, WHICH WOULD BE DEFEATED IF
A COURT WERE LEFT WITH DISCRETION TO WITHHOLD AN INJUNCTION AND THEREBY
PERMIT CONTINUATION OF AN EMERGENCY IT HAS FOUND TO EXIST.  THE HOPE IS
THAT WITHIN THE PERIOD OF THE INJUNCTION VOLUNTARY SETTLEMENT OF THE
LABOR DISPUTE WILL BE REACHED, AND TO THAT END THE STATUTE COMPELS
BARGAINING BETWEEN THE PARTIES DURING THAT TIME.  IF NO VOLUNTARY
SETTLEMENT IS CONCLUDED WITHIN THE PERIOD OF THE INJUNCTION, THE
PRESIDENT IS TO REPORT TO CONGRESS SO THAT THAT BODY MAY FURTHER DRAW
UPON ITS CONSTITUTIONAL LEGISLATIVE POWERS.  HOW ELSE CAN THESE
SPECIFIC DIRECTIONS BE VIEWED BUT THAT THE PROCEDURES PROVIDED ARE, IN
THE VIEW OF CONGRESS, THE WAY TO MEET THE EMERGENCIES WHICH COME WITHIN
THE STATUTE?  IT IS NOT FOR A COURT TO NEGATIVE THE DIRECTION OF
CONGRESS BECAUSE OF ITS OWN CONFIDENT PROPHECY THAT THE "EIGHTY-DAY"
INJUNCTION AND THE ADMINISTRATIVE PROCEDURES WHICH FOLLOW UPON IT WILL
NOT INDUCE VOLUNTARY SETTLEMENT OF THE DISPUTE, OR ARE TOO DRASTIC A
WAY OF DEALING WITH IT. 

WE ARE ALSO PERSUADED BY THE FACT THAT, BEFORE THE STATUTE IS
INVOKED, THERE MUST BE A PRESIDENTIAL DETERMINATION THAT THE "EIGHTY
DAY" INJUNCTION IS THE PROMISING METHOD FOR DEALING WITH THE EMERGENCY
ARISING FROM THE LABOR DISPUTE.  SECTION 206 PROVIDES THAT WHENEVER THE
PRESIDENT IS OF THE "OPINION" THAT A STRIKE OR LOCKOUT WILL CREATE A
NATIONAL EMERGENCY, HE MAY APPOINT A BOARD OF INQUIRY, WHICH SHALL
SUBMIT TO HIM A REPORT CONTAINING THE FACTS RELATING TO THE DISPUTE AND
THE POSITIONS OF THE PARTIES TO IT.  UPON RECEIVING THIS REPORT THE
PRESIDENT "MAY" DIRECT THE ATTORNEY GENERAL TO PETITION TO ENJOIN THE
STRIKE OR LOCKOUT.  IT IS UNDOUBTEDLY ONE OF THE FACTORS IN THE
PRESIDENT'S DECISION TO DIRECT THE ATTORNEY GENERAL TO ACT THAT HE
CONSIDERS SUCH AN INJUNCTION THE BEST AVAILABLE COURSE TO RELIEVE THE
EMERGENCY.  SUCH A DECISION BY THE PRESIDENT TO INVOKE THE COURTS'
JURISDICTION TO ENJOIN, INVOLVING, AS IT DOES, ELEMENTS NOT SUSCEPTIBLE
OF ORDINARY JUDICIAL PROOF NOR WITHIN THE GENERAL RANGE OF JUDICIAL
EXPERIENCE, IS NOT WITHIN THE COMPETENT SCOPE OF THE EXERCISE OF
EQUITABLE "DISCRETION."  IT MAY BE THAT THE ASSUMPTIONS ON THE BASIS OF
WHICH CONGRESS LEGISLATED WERE ILL-FOUNDED OR HAVE BEEN INVALIDATED BY
EXPERIENCE.  IT MAY BE THAT THE CONSIDERATIONS ON THE BASIS OF WHICH
THE PRESIDENT EXERCISED HIS JUDGMENT IN INVOKING THE LEGISLATION WILL
BE FOUND WANTING BY HINDSIGHT.  THESE ARE NOT MATTERS WITHIN THE
COURT'S CONCERN.  THEY ARE NOT RELEVANT TO THE CONSTRUCTION OF SEC. 208
NOR TO ITS JUDICIAL ENFORCEMENT.  THEY CERTAINLY DO NOT WARRANT THE
JUDICIARY'S INTRUSION INTO THE EXERCISE BY CONGRESS AND THE PRESIDENT
OF THEIR RESPECTIVE POWERS AND RESPONSIBILITIES. 

THE HECHT CO. V. BOWLES, 321 U.S. 321, HEAVILY RELIED ON, DEALTY WITH
QUITE A DIFFERENT SITUATION.   THERE WE HELD THAT THE APPLICATION OF
THE ADMINISTRATOR OF THE EMERGENCY PRICE CONTROL ACT OF 1942 FOR AN
INJUNCTION OF VIOLATIONS OF THAT ACT MIGHT BE REFUSED, IN THE EXERCISE
OF THE DISTRICT COURT'S "DISCRETION."  BUT THE SCHEME OF THE STATUTE IN
HECHT V. BOWLES WAS SIGNIFICANTLY DIFFERENT FROM THAT OF THE STATUTE IN
THIS CASE.  THE EMERGENCY PRICE CONTROL ACT OF  1942 PROVIDED THAT THE
DISTRICT COURT SHOULD GRANT, AT THE ADMINISTRATOR'S APPLICATION, "A
PERMANENT OR TEMPORARY INJUNCTION, RESTRAINING ORDER, OR OTHER ORDER." 
THIS COURT EMPHASIZED THE ALTERNATIVE CHARACTER OF THIS PROVISION FOR
AN "OTHER ORDER" AS IMPARTING TO THE DISTRICT COURT DISCRETION TO
WITHHOLD AN INJUNCTION.  321 U.S., AT 328.  UNDER THE LABOR MANAGEMENT
RELATIONS ACT THE DISTRICT COURT IS GIVEN JURISDICTION TO ENJOIN "AND
TO MAKE SUCH OTHER ORDERS AS MAY BE APPROPRIATE."  CONGRESS THUS
PROVIDED A JURISDICTION ADDITIONAL TO THE POWER TO GRANT AN INJUNCTION,
NOT ALTERNATIVE TO IT:  AN "OTHER ORDER" MAY ONLY SUPPLEMENT AN
INJUNCTION, IT MAY NOT SUPPLANT IT.  BEYOND THIS DIFFERENCE ARE THE
CONSIDERATIONS THAT, UNDER THE EMERGENCY PRICE CONTROL ACT OF 1942, AN
INJUNCTION DID NOT, AS IT DOES HERE, BRING INTO PLAY OTHER CAREFULLY
PRESCRIBED RELIEF DESIGNED BY CONGRESS TO ALLEVIATE THE CAUSE OF THE
EVIL WHICH IT WAS THE PURPOSE OF THE STATUTE TO CORRECT, NOR WAS THE
DURATION OF THE INJUNCTION SPECIFICALLY LIMITED AS IN THIS CASE.  THERE
WAS NOT, THEREFORE, IN HECHT V. BOWLES THE STRONG SHOWING WE HAVE HERE
THAT THE CONGRESS HAS RESOLVED THE QUESTION OF THE APPROPRIATE FORM OF
RELIEF FOR THE CONDITION THE STATUTE IS MEANT TO CORRECT, AND THE COURT
THERE CONCLUDED THAT THE ADMINISTRATOR'S APPLICATION FOR JUDICIAL
RELIEF WAS AN APPEAL TO THE ORDINARY EQUITY JURISDICTION AND
"DISCRETION" OF THE DISTRICT COURT.  IN HECHT V. BOWLES ITSELF THE
COURT RECOGNIZED THAT THERE MIGHT BE "OTHER FEDERAL STATUTES GOVERNING
ADMINISTRATIVE AGENCIES WHICH  ...  MAKE IT MANDATORY THAT THOSE
AGENCIES TAKE ACTION WHEN CERTAIN FACTS ARE SHOWN TO EXIST."  321 U.S.,
AT 329.  IN ESSENCE THIS DESCRIBES THE SITUATION UNDER THE LABOR
MANAGEMENT RELATIONS ACT. 

WE COME FINALLY TO THE PETITIONER'S CONTENTION THAT THE GRANT TO THE
DISTRICT COURTS BY SEC. 208(A) OF THE LABOR MANAGEMENT RELATIONS ACT OF
JURISDICTION TO ENJOIN STRIKES SUCH AS THIS ONE IS NOT A GRANT OF
"JUDICIAL POWER" WITHIN THE MEANING OF ART. III, SEC. 2, OF THE
CONSTITUTION, AND WAS THEREFORE BEYOND THE POWER OF CONGRESS TO CONFER
ON THE DISTRICT COURTS.  WHAT PROCEEDINGS ARE "CASES" AND
"CONTROVERSIES" AND THUS WITHIN THE "JUDICIAL POWER" IS TO BE
DETERMINED, AT THE LEAST, BY WHAT PROCEEDINGS WERE RECOGNIZED AT THE
TIME OF THE CONSTITUTION TO BE TRADITIONALLY WITHIN THE POWER OF COURTS
IN THE ENGLISH AND AMERICAN JUDICIAL SYSTEMS.  BOTH BY WHAT THEY SAID
AND BY WHAT THEY IMPLIED, THE FRAMERS OF THE JUDICIARY ARTICLE GAVE
MERELY THE OUTLINES OF WHAT WERE TO THEM THE FAMILIAR OPERATIONS OF THE
ENGLISH JUDICIAL SYSTEM AND ITS MANIFESTATIONS ON THIS SIDE OF THE
OCEAN BEFORE THE UNION.  JUDICIAL POWER COULD COME INTO PLAY ONLY IN
MATTERS SUCH AS WERE THE TRADITIONAL CONCERN OF THE COURTS AT
WESTMINSTER AND ONLY IF THEY AROSE IN WAYS THAT TO THE EXPERT FEEL OF
LAWYERS CONSTITUTED "CASES" OR "CONTROVERSIES." 

BEGINNING AT LEAST AS EARLY AS THE SIXTEENTH CENTURY THE ENGLISH
COURTS HAVE ISSUED INJUNCTIONS TO ABATE PUBLIC NUISANCES.  BOND'S CASE,
MOORE 238 (1587); JACOB HALL'S CASE, 1 VENTRIS 169, 1 MOD. 76 (1671);
THE KING V. BETTERTON, 5 MOD. 142 (1696); BAINES V. BAKER, 3 ATK.  750,
1 AMB.  158 (1752); MAYOR OF LONDON V. BOLT, 5 VES.  129 (1799).  SEE
ALSO EDEN, INJUNCTIONS (3D ED. 1852), VOL. II, 259; BLACKSTONE,
COMMENTARIES (12TH ED.  1795), VOL. IV, 166.  THIS OLD, SETTLED LAW WAS
SUMMARIZED IN 1836 BY THE LORD CHANCELLOR IN THE STATEMENT THAT "THE
COURT OF EXCHEQUER, AS WELL AS THIS COURT, ACTING AS A COURT OF EQUITY,
HAS A WELL ESTABLISHED JURISDICTION, UPON A PROCEEDING BY WAY OF
INFORMATION, TO PREVENT NUISANCES TO PUBLIC HARBOURS AND PUBLIC ROADS;
AND, IN SHORT, GENERALLY, TO PREVENT PUBLIC NUISANCES."  ATTORNEY
GENERAL V. FORBES, 2 M.&C. 123, 133.  AND TWO YEARS LATER THIS COURT
RECOGNIZED THAT "IT IS NOW SETTLED, THAT A COURT OF EQUITY MAY TAKE
JURISDICTION IN CASES OF PUBLIC NUISANCE, BY AN INFORMATION FILED BY
THE ATTORNEY GENERAL."  GEORGETOWN V. ALEXANDRIA CANAL CO., 12 PET. 91,
98 (1838).  SEE ALSO PAYNE V. HOOK, 7 WALL.  425, 430.  SINCE THAT TIME
THIS COURT HAS IMPRESSIVELY ENFORCED THE JUDICIAL POWER TO ABATE PUBLIC
NUISANCES AT THE SUIT OF THE GOVERNMENT.  IN RE DEBS, 158 U.S. 564. 
THE CRUX OF THE DEBS DECISION, THAT THE GOVERNMENT MAY INVOKE JUDICIAL
POWER TO ABATE WHAT IS IN EFFECT A NUISANCE DETRIMENTAL TO THE PUBLIC
INTEREST, HAS REMAINED INTACT.  THE HEART OF THE CASE WAS APPROVINGLY
CITED BY MR. JUSTICE BRANDEIS FOR THE COURT IN JACOB RUPPERT V. CAFFEY,
251 U.S. 264, 301.  THE SCOPE OF THE INJUNCTION IN THE DEBS CASE NO
DOUBT GAVE RISE TO THE MUCH-CRITICIZED EXTENSIVE USE OF THE INJUNCTION
IN ORDINARY EMPLOYER-EMPLOYEE CONTROVERSIES.  SEE FRANKFURTER AND
GREENE, THE LABOR INJUNCTION, PP. 18 ET SEQ., 62-63, AND 190, AND FOR
THE TERMS OF THE DECREE SEE P. 253.  CONGRESS DEALT WITH THIS
PROLIFERATING AND MISCHIEVOUS USE OF THE LABOR INJUNCTION FIRST THROUGH
THE CLAYTON ACT AND LATER THROUGH THE NORRIS-LAGUARDIA ACT.  BUT EVEN
THE SEVEREST CRITICS OF THE DEBS INJUNCTION HAVE RECOGNIZED THAT IT WAS
NOT A "NEW INVENTION."  SEE, ID., P. 20.  THE JUDICIAL POWER TO ENJOIN
PUBLIC NUISANCE AT THE INSTANCE OF THE GOVERNMENT HAS BEEN A
COMMONPLACE OF JURISDICTION IN AMERICAN JUDICIAL HISTORY.  SEE, E.G.,
ATTORNEY GENERAL V. TUDOR ICE CO., 104 MASS. 239, 244 (1870); VILLAGE
OF PINE CITY V. MUNCH, 42 MINN. 342, 343, 44 N.W. 197 (1890); BOARD OF
HEALTH V. VINK, 184 MICH. 688, 151 N.W. 672 (1915). 

THE JURISDICTION GIVEN THE DISTRICT COURTS BY SEC. 208(A) OF THE LABOR
MANAGEMENT RELATIONS ACT TO ENJOIN STRIKES CREATING A NATIONAL
EMERGENCY IS A JURISDICTION OF A KIND THAT HAS BEEN TRADITIONALLY
EXERCISED OVER PUBLIC NUISANCES.  THE CRITERION FOR JUDICIAL ACTION -
PERIL TO HEALTH OR SAFETY - IS MUCH LIKE THOSE UPON WHICH COURTS
ORDINARILY HAVE ACTED.  INJUNCTIVE RELIEF IS TRADITIONALLY GIVEN BY
EQUITY UPON A SHOWING OF SUCH PERIL, AND THE COURT, AS WAS TRADITIONAL,
ACTS AT THE REQUEST OF THE EXECUTIVE.  THERE CAN THEREFORE BE NO DOUBT
THAT, BEING THUS AKIN TO JURISDICTION LONG HISTORICALLY EXERCISED, THE
FUNCTION TO BE PERFORMED BY THE DISTRICT COURTS UNDER SEC. 208(A) IS
WITHIN THE "JUDICIAL POWER" AS CONTEMPLATED BY ART. III, SEC. 2, AND IS
ONE WHICH CONGRESS MAY THUS CONFER UPON THE COURTS.  IT SURELY DOES NOT
TOUCH THE CRITERIA FOR DETERMINING WHAT IS "JUDICIAL POWER" THAT THE
INJUNCTION TO BE ISSUED IS NOT A PERMANENT ONE, AND MAY LAST NO LONGER
THAN EIGHTY DAYS.  GIVEN THE POWER IN CONGRESS TO VEST IN THE FEDERAL
COURTS THE FUNCTION TO ENJOIN ABSOLUTELY, IT DOES NOT CHANGE THE
CHARACTER OF THE POWER GRANTED OR UNDERMINE THE PROFESSIONAL COMPETENCE
OF A COURT FOR ITS EXERCISE THAT CONGRESS HAS DIRECTED THE RELIEF TO BE
TEMPERED. 

THESE CONTROLLING CONSTITUTIONAL CONSIDERATIONS WERE SOUGHT TO BE
DIVERTED BY THE PETITIONER THROUGH ABSTRACT DISCUSSION ABOUT THE
NECESSITY FOR CONGRESS TO DEFINE LEGAL RIGHTS AND DUTIES.  THE POWER OF
CONGRESS TO DEAL WITH THE PUBLIC INTEREST DOES NOT DERIVE FROM, NOR IS
IT LIMITED BY, RIGHTS AND DUTIES AS BETWEEN PARTIES.  CONGRESS MAY
IMPOSE DUTIES AND ENFORCE OBLIGATIONS TO THE NATION AS A WHOLE, AS IT
HAS SO OBVIOUSLY DONE IN THE LABOR MANAGEMENT RELATIONS ACT.  SUCH
CONGRESSIONAL POWER IS NOT TO BE SUBORDINATED TO A STERILE JURISTIC
DIALECTIC. 

MR. JUSTICE DOUGLAS, DISSENTING.* 

*REPORTER'S NOTE:  THIS DISSENTING OPINION WAS FILED NOVEMBER 7,
1959, AND WAS REVISED LATER IN THE LIGHT OF THE CONCURRING OPINION.  IT
IS REPORTED HERE AS REVISED. 

GREAT CASES, LIKE THIS ONE, ARE SO CHARGED WITH IMPORTANCE AND
FEELING THAT, AS MR. JUSTICE HOLMES ONCE REMARKED (NORTHERN SECURITIES
CO. V. UNITED STATES, 193 U.S. 197, 400-401, DISSENTING OPINION), THEY
ARE APT TO GENERATE BAD LAW.  WE NEED, THEREFORE, TO STICK CLOSELY TO
THE LETTER OF THE LAW WE ENFORCE IN ORDER TO KEEP THIS CONTROVERSY FROM
BEING SHAPED BY THE INTENSE INTEREST WHICH THE PUBLIC RIGHTFULLY HAS IN
IT.  THE STATUTE, WHICH CONGRESS HAD AUTHORITY TO PASS, SPEAKS IN
NARROW AND GUARDED TERMS.  SECTION 206 OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, 61 STAT. 155, 29 U.S.C. SEC.  176, GIVES THE
PRESIDENT POWER TO INVOKE THE AID OF A BOARD OF INQUIRY WHENEVER HE IS
OF THE OPINION THAT A STRIKE OR LOCKOUT WILL IMPERIL "THE NATIONAL
HEALTH OR SAFETY."  THE PRESIDENT, IN APPOINTING THE BOARD OF INQUIRY
IN THIS CASE, STATED: 

"THE STRIKE HAS CLOSED 85 PERCENT OF THE NATION'S STEEL MILLS,
SHUTTING OFF PRACTICALLY ALL NEW SUPPLIES OF STEEL.  OVER 500,000 STEEL
WORKERS AND ABOUT 200,000 WORKERS IN RELATED INDUSTRIES, TOGETHER WITH
THEIR FAMILIES, HAVE BEEN DEPRIVED OF THEIR USUAL MEANS OF SUPPORT. 
PRESENT STEEL SUPPLIES ARE LOW AND THE RESUMPTION OF FULL-SCALE
PRODUCTION WILL REQUIRE SOME WEEKS.  IF PRODUCTION IS NOT QUICKLY
RESUMED, SEVERE EFFECTS UPON THE ECONOMY WILL ENDANGER THE ECONOMIC
HEALTH OF THE NATION." 

IT IS PLAIN THAT THE PRESIDENT CONSTRUED THE WORD "HEALTH" TO INCLUDE
THE MATERIAL WELL-BEING OR PUBLIC WELFARE OF THE NATION.  WHEN THE
ATTORNEY GENERAL MOVED UNDER SEC. 208 FOR AN INJUNCTION IN THE DISTRICT
COURT BASED ON THE OPINION OF THE PRESIDENT AND THE CONCLUSIONS OF THE
BOARD OF INQUIRY, THE UNION CHALLENGED THE CONCLUSION THAT "THE
NATIONAL HEALTH OR SAFETY" WAS IMPERILED, AS THOSE WORDS ARE USED IN
THE ACT.  THE DISTRICT COURT FOUND OTHERWISE, STATING FIVE WAYS IN
WHICH THE STRIKE WOULD, IF PERMITTED TO CONTINUE, IMPERIL "THE NATIONAL
HEALTH AND SAFETY": 

"(A)  CERTAIN ITEMS OF STEEL REQUIRED IN TOP PRIORITY MILITARY
MISSILE PROGRAMS OF THE UNITED STATES ARE NOT MADE BY ANY MILL NOW
OPERATING, NOR AVAILABLE FROM ANY INVENTORY OR FROM IMPORTS.  ANY
FURTHER DELAY IN RESUMPTION OF STEEL PRODUCTION WOULD RESULT IN AN
IRRETRIEVABLE LOSS OF TIME IN THE SUPPLY OF WEAPONS SYSTEMS ESSENTIAL
TO THE NATIONAL DEFENSE PLANS OF THE UNITED STATES AND ITS ALLIES. 

"(B)  THE PLANNED PROGRAM OF SPACE ACTIVITIES UNDER THE DIRECTION OF
THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION HAS BEEN DELAYED BY
THE STRIKE AND WILL BE FURTHER DELAYED IF IT IS CONTINUED. 
SPECIFICALLY, PROJECT MERCURY, THE NATION'S MANNED SATELLITE PROGRAM,
WHICH HAS THE HIGHEST NATIONAL PRIORITY, HAS BEEN DELAYED BY REASON OF
DELAY IN CONSTRUCTION OF BUILDINGS ESSENTIAL TO ITS OPERATION.  THIS
PROGRAM IS IMPORTANT TO THE SECURITY OF THE NATION.  OTHER PLANNED
SPACE PROGRAMS WILL BE DELAYED OR THREATENED WITH DELAY BY A
CONTINUATION OF THE STRIKE. 

"(C)  NUCLEAR SUBMARINES AND THE NAVAL SHIPBUILDING PROGRAM OTHER
THAN SUBMARINES, INCLUDING NEW CONSTRUCTION, MODERNIZATION, AND
CONVERSION, HAVE BEEN AFFECTED BY REASON OF THE INABILITY TO SECURE
BOILERS, COMPRESSORS, AND OTHER COMPONENT PARTS REQUIRING STEEL. 
PRODUCTS OF THE STEEL INDUSTRY ARE INDISPENSABLE TO THE MANUFACTURE OF
SUCH ITEMS AND DELAY IN THEIR PRODUCTION WILL IRREPARABLY INJURE
NATIONAL DEFENSE AND IMPERIL THE NATIONAL SAFETY. 

"(D)  EXPORTED STEEL PRODUCTS ARE VITAL TO THE SUPPORT OF THE UNITED
STATES BASES OVERSEAS AND FOR THE USE OF NATO ALLIES AND SIMILAR
COLLECTIVE SECURITY GROUPS.  THE STEEL STRIKE, IF PERMITTED TO
CONTINUE, WILL SERIOUSLY IMPAIR THESE PROGRAMS, THUS IMPERILING THE
NATIONAL SAFETY. 

"(E)  A CONTINUATION OF THE STRIKE WILL HAVE THE ULTIMATE EFFECT OF
ADVERSELY AFFECTING MILLIONS OF SMALL BUSINESS ENTERPRISES, ALMOST ALL
OF WHICH ARE DIRECTLY OR INDIRECTLY DEPENDENT UPON STEEL PRODUCTS AND
MOST OF WHICH LACK THE RESOURCES TO STOCK LARGE INVENTORIES.  IN
ADDITION, IT WILL HAVE THE EFFECT OF IDLING MILLIONS OF WORKERS AND A
LARGE PROPORTION OF THE FACILITIES IN INDUSTRIES DEPENDENT UPON STEEL
FOR THEIR CONTINUED OPERATION.  MANUFACTURING INDUSTRIES DIRECTLY
DEPENDENT ON STEEL MILL PRODUCTS ACCOUNT FOR THE EMPLOYMENT OF
APPROXIMATELY 6,000,000 WORKERS AND NORMAL ANNUAL WAGES AND SALARIES
TOTALLING APPROXIMATELY $34,000,000,000.  THE PRODUCTS OF THESE
INDUSTRIES ARE VALUED AT OVER $125,000,000,000.  THE NATIONAL HEALTH
WILL BE IMPERILED IF THE STRIKE IS PERMITTED TO CONTINUE." 

HERE AGAIN IT IS OBVIOUS THAT "NATIONAL HEALTH" WAS CONSTRUED TO
INCLUDE THE ECONOMIC WELL-BEING OR GENERAL WELFARE OF THE COUNTRY.  THE
COURT OF APPEALS, IN SUSTAINING THE INJUNCTION, WAS APPARENTLY OF THE
SAME VIEW.  THIS SEEMS TO ME TO BE AN ASSUMPTION THAT IS UNWARRANTED. 
I THINK THAT CONGRESS, WHEN IT USED THE WORDS "NATIONAL HEALTH," WAS
SAFEGUARDING THE HEATING OF HOMES, THE DELIVERY OF MILK, THE PROTECTION
OF HOSPITALS, AND THE LIKE.  THE COAL INDUSTRY, CLOSELY IDENTIFIED WITH
PHYSICAL HEALTH OF PEOPLE, WAS THE INDUSTRY PARAMOUNT IN THE DEBATES ON
THIS MEASURE.  THE COAL INDUSTRY IS INDEED CITED ON THE SENATE SIDE IN
ILLUSTRATION OF THE NEED FOR THE MEASURE.  S. REP. NO. 105, 80TH CONG.,
1ST SESS., P. 14.  THERE WERE THOSE IN THE SENATE WHO WANTED TO GO SO
FAR AS TO OUTLAW STRIKES "IN UTILITIES AND KEY NATION-WIDE INDUSTRIES"
IN ORDER TO PROTECT THE "PUBLIC WELFARE."  93 CONG. REC. A1035. 
REFERENCE WAS, INDEED, MADE TO STRIKES IN INDUSTRIES "LIKE COAL OR
STEEL" AMONG THOSE TO BE BARRED IN "THE PUBLIC INTEREST."  IBID.  BUT
THE SENATE DID NOT GO THAT FAR.  THE SENATE BILL REACHED ONLY
SITUATIONS WHERE THERE WAS PERIL TO THE "NATIONAL HEALTH OR SAFETY." 
(FN1)  THE HOUSE BILL WENT FURTHER AND INCLUDED CASES WHERE THERE WAS
PERIL TO "THE PUBLIC HEALTH, SAFETY, OR INTEREST."  (FN2)  THE SENATE
VIEW PREVAILED, ITS VERSION BEING ADOPTED BY THE CONFERENCE.  (FN3)
SOME LIGHT IS THROWN ON THE WIDE DIFFERENCE BETWEEN THOSE TWO STANDARDS
- IF WORDS ARE TO BE TAKEN IN THEIR USUAL SENSE - BY THE FOLLOWING
COLLOQUY ON THE FLOOR OF THE HOUSE: (FN4) 

"MR. KENNEDY.  I BELIEVE THAT THIS COUNTRY SHOULD CERTAINLY BE IN A
POSITION TO COMBAT A STRIKE THAT AFFECTS THE HEALTH AND SAFETY OF THE
PEOPLE.  THEREFORE, I FEEL THAT THE PRESIDENT MUST HAVE THE POWER TO
STEP IN AND STOP THOSE STRIKES.  I AM NOT IN THE POSITION OF OPPOSING
EVERYTHING IN THIS BILL, BUT THERE ARE CERTAIN THINGS IN THE BILL THAT
ARE WRONG.  I DO NOT SEE HOW THE PRESIDENT IS GOING TO HAVE THE POWER
TO STOP STRIKES THAT WILL AFFECT THE HEALTH AND SAFETY OF THE PEOPLE
UNDER THE PROCEDURE LISTED IN SECTION 203.  I THINK HE MUST HAVE THAT
POWER. 

"I AGREE WITH YOU THAT ANY BILL PROVIDING FOR AN INJUNCTION SHOULD
CAREFULLY CONSIDER THE POSITION OF THE STRIKING UNION AND MAKE SURE
THAT THEIR RIGHTS ARE PROTECTED.  I THINK THAT IN THOSE CASES FEDERAL
SEIZURE UNTIL THE DISPUTE IS SETTLED WOULD PERHAPS EQUALIZE THE BURDEN
IN THE FAIREST POSSIBLE MANNER. 

"MR. OWENS.  WILL NOT THE GENTLEMAN ADMIT THAT WE HAVE A THIRD WORD
IN THERE?  IT IS 'INTEREST.'  COULD WE NOT BETTER USE THE WORD
'WELFARE' INSTEAD OF 'INTEREST,' BECAUSE THE WORD 'WELFARE' OCCURS IN
THE CONSTITUTION?  IT IS JUST AS BROAD AS THE WORD 'INTEREST' AND MORE
PRACTICAL. 

"MR. KENNEDY.  THE PROPOSAL EMBRACES TWO SEPARATE THINGS, HEALTH AND
SAFETY.  BECAUSE THE REMEDY IS DRASTIC THESE TWO, IN MY OPINION, ARE
SUFFICIENT.  I BELIEVE WE SHOULD APPLY THIS REMEDY WHEN THE STRIKE
AFFECTS HEALTH OR SAFETY, BUT NOT THE WELFARE AND INTEREST, WHICH MAY
MEAN ANYTHING.  I WOULD NOT INTERFERE IN AN AUTOMOBILE STRIKE BECAUSE
WHILE PERHAPS THAT AFFECTS NATIONAL INTEREST, IT DOES NOT AFFECT HEALTH
AND SAFETY. 

"MR. OWENS.  DOES NOT THE GENTLEMAN AGREE THAT 'WELFARE' IS THE
STRONGER AND IN LINE WITH THE PRESIDENT'S IDEA? 

"MR. KENNEDY.  NO. BOTH 'WELFARE' AND 'INTEREST' ARE TOO INDEFINITE. 
THEY COULD COVER ANYTHING.  I WOULD NOT HAVE THE LAW APPLY EXCEPT IN
CASES WHERE THE STRIKE AFFECTED HEALTH AND SAFETY." 

TO READ "WELFARE" INTO "HEALTH" GIVES THAT WORD SUCH A VAST REACH
THAT WE SHOULD DO IT ONLY UNDER THE MOST COMPELLING NECESSITY.  WE MUST
BE MINDFUL OF THE HISTORY BEHIND THIS LEGISLATION.  IN RE DEBS, 158
U.S. 564, 584, STANDS AS OMINOUS PRECEDENT FOR THE EASY USE OF THE
INJUNCTION IN LABOR DISPUTES.  FREE-WHEELING ATTORNEYS GENERAL USED
COMPELLING PUBLIC DEMANDS TO OBTAIN THE HELP OF COURTS IN STILLING THE
PROTESTS OF LABOR.  THE REVULSION AGAINST THAT PRACTICE WAS DEEP, AND
IT LED ULTIMATELY TO THE ENACTMENT OF THE NORRIS-LAGUARDIA ACT, 47
STAT. 70, 29 U.S.C. SEC. 101.  (FN5)  WE DEAL, OF COURSE, WITH A LATER
CONGRESS AND AN ACT THAT BY SEC. 208(B) SETS ASIDE PRO TANTO THE
EARLIER ACT.  WHAT CONGRESS HAS CREATED CONGRESS CAN REFASHION.  BUT WE
SHOULD HESITATE TO CONCLUDE THAT CONGRESS MEANT TO RESTORE THE USE OF
THE INJUNCTION IN LABOR DISPUTES WHENEVER THAT BROAD AND ALL-INCLUSIVE
CONCEPT OF THE PUBLIC WELFARE IS IMPAIRED.  THE WORDS USED - "NATIONAL
HEALTH OR SAFETY" - ARE MUCH NARROWER. 

CONGRESS IN THE SAME ACT KNEW HOW TO SPEAK WHEN IT SPOKE ALL
INCLUSIVELY.  THE DECLARATION OF POLICY IN THE LABOR MANAGEMENT
RELATIONS ACT, 1947, SPEAKS IN BROAD TERMS.  THERE IS A DECLARATION IN
SEC. 1(B) THAT "NEITHER PARTY HAS ANY RIGHT IN ITS RELATIONS WITH ANY
OTHER TO ENGAGE IN ACTS OR PRACTICES WHICH JEOPARDIZE THE PUBLIC
HEALTH, SAFETY, OR INTEREST."  61 STAT. 136.  THE WORDS "PUBLIC  ...
INTEREST" COVER FIVE TITLES OF A FAR-REACHING REGULATORY MEASURE.  YET,
WHEN CONGRESS CAME TO DEFINE THE JURISDICTION OF COURTS TO INTERVENE IN
STRIKES OR LOCKOUTS, IT SPOKE IN MORE RESTRICTED TERMS, CONFINING THE
JUDICIARY TO INJUNCTIONS WHERE THERE IS IMPENDING PERIL TO "THE
NATIONAL HEALTH OR SAFETY."  THAT NARROW READING IS, INDEED, THE ONLY
ONE THAT CAN BE SQUARED WITH SENATOR TAFT'S EXPLANATION OF THE USE OF
AN INJUNCTION IN A STRIKE SITUATION.  THE STRIKE, HE SAID, MUST NOT
ONLY AFFECT SUBSTANTIALLY "AN ENTIRE INDUSTRY," IT MUST ALSO "IMPERIL
THE NATIONAL HEALTH OR SAFETY, A CONDITION WHICH, IT IS ANTICIPATED,
WILL NOT OFTEN OCCUR."  (FN6)  YET, IF "NATIONAL HEALTH" INCLUDES THE
PUBLIC WELFARE, INJUNCTIONS WILL ISSUE WHENEVER ANY IMPORTANT INDUSTRY
IS INVOLVED - WHETHER IT BE STEEL OR AUTOMOBILES OR COAL OR ANY GROUP
OF INDUSTRIES WHERE ONE UNION MAKES COLLECTIVE AGREEMENTS FOR EACH OF
THE COMPONENT UNIONS. 

IT IS A FACT OF WHICH WE CAN TAKE JUDICIAL NOTICE THAT STEEL
PRODUCTION IN ITS BROADEST REACH MAY HAVE A GREAT IMPACT ON "NATIONAL
HEALTH."  MACHINERY FOR PROCESSING FOOD IS NEEDED; HOSPITALS REQUIRE
SURGICAL INSTRUMENTS; REFRIGERATION IS DEPENDENT ON STEEL; AND SO ON.
WHETHER THERE ARE SUCH SHORTAGES THAT IMPERIL THE "NATIONAL HEALTH" IS
NOT SHOWN BY THIS RECORD.  BUT UNLESS THESE PARTICULARIZED FINDINGS ARE
MADE NO CASE CAN BE MADE OUT FOR FOUNDING THE INJUNCTION ON IMPENDING
PERIL TO THE "NATIONAL HEALTH."    NOR CAN THIS BROAD INJUNCTION BE
SUSTAINED WHEN IT IS RESTED SOLELY ON "NATIONAL SAFETY."  THE HEART OF
THE DISTRICT COURT'S FINDING ON THIS PHASE OF THE CASE IS IN ITS
STATEMENT, "CERTAIN ITEMS OF STEEL REQUIRED IN TOP PRIORITY MILITARY
MISSILE PROGRAMS OF THE UNITED STATES ARE NOT MADE BY ANY MILL NOW
OPERATING, NOR AVAILABLE FROM ANY INVENTORY OR FROM IMPORTS."  ITS
OTHER FINDINGS, ALREADY QUOTED, ARE ALSO GENERALIZED.  ONE CANNOT FIND
IN THE RECORD THE TYPE OR QUANTITY OF THE STEEL NEEDED FOR DEFENSE, THE
NAME OF THE PLANTS AT WHICH THOSE PRODUCTS ARE PRODUCED, OR THE NUMBER
OR THE NAMES OF THE PLANTS THAT WILL HAVE TO BE REOPENED TO FILL THE
MILITARY NEED.  WE DO KNOW THAT FOR ONE AND A HALF YEARS ENDING IN MID
1959 THE SHIPMENTS OF STEEL FOR DEFENSE PURPOSES ACCOUNTED FOR LESS
THAN 1% OF ALL THE SHIPMENTS FROM ALL THE STEEL MILLS.  IF 1,000 MEN,
OR 5,000 MEN, OR 10,000 MEN CAN PRODUCE THE CRITICAL AMOUNT THE DEFENSE
DEPARTMENTS NEED, WHAT AUTHORITY IS THERE TO SEND 500,000 MEN BACK TO
WORK? 

THERE CAN BE NO DOUBT THAT THE STEEL STRIKE AFFECTS A "SUBSTANTIAL"
PORTION OF THE INDUSTRY.  HENCE THE FIRST REQUIREMENT OF SEC. 208(A) OF
THE ACT IS SATISFIED.  (FN7)  BUT WE DO KNOW THAT ONLY A FRACTION OF
THE PRODUCTION OF THE STRUCK INDUSTRY GOES TO DEFENSE NEEDS.  WE DO NOT
KNOW, HOWEVER, WHAT FRACTION OF THE INDUSTRY IS NECESSARY TO PRODUCE
THAT PORTION.  (FN8)  WITHOUT THAT KNOWLEDGE THE DISTRICT COURT IS
INCAPABLE OF FASHIONING A DECREE THAT WILL SAFEGUARD THE NATIONAL
"SAFETY," AND STILL PROTECT THE RIGHTS OF LABOR.  WILL A SELECTIVE
REOPENING OF A FEW MILLS BE ADEQUATE TO MEET DEFENSE NEEDS?  WHICH
MILLS ARE THESE?  WOULD IT BE PRACTICAL TO REOPEN THEM SOLELY FOR
DEFENSE PURPOSES OR WOULD THEY HAVE TO BE REOPENED FOR ALL CIVILIAN
PURPOSES AS WELL?  THIS SEEMS TO ME TO BE THE TYPE OF INQUIRY THAT IS
NECESSARY BEFORE A DECREE CAN BE ENTERED THAT WILL SAFEGUARD THE RIGHTS
OF ALL THE PARTIES.  SECTION 208(A) GIVES THE DISTRICT COURT
"JURISDICTION TO ENJOIN" THE STRIKE.  THERE IS NO COMMAND THAT IT SHALL
ENJOIN 100% OF THE STRIKERS WHEN ONLY 1% OR 5% OR 10% OF THEM ARE
ENGAGED IN ACTS THAT IMPERIL THE NATIONAL "SAFETY."  WE ARE DEALING
HERE WITH EQUITY PRACTICE WHICH HAS SEVERAL HUNDRED YEARS OF HISTORY
BEHIND IT.  WE CANNOT LIGHTLY ASSUME THAT CONGRESS INTENDED TO MAKE THE
FEDERAL JUDICIARY A RUBBER STAMP FOR THE PRESIDENT.  HIS FINDINGS ARE
ENTITLED TO GREAT WEIGHT, AND I ALONG WITH MY BRETHREN ACCEPT THEM
INSOFAR AS NATIONAL "SAFETY" IS CONCERNED.  BUT IT IS THE COURT, NOT
THE PRESIDENT, THAT IS ENTRUSTED BY ARTICLE III OF THE CONSTITUTION TO
SHAPE AND FASHION THE DECREE.  IF A FEDERAL COURT IS TO DO IT, IT MUST
ACT IN ITS TRADITIONAL MANNER, NOT AS A MILITARY COMMANDER ORDERING
PEOPLE TO WORK WILLY-NILLY, NOR AS THE PRESIDENT'S ADMINISTRATIVE
ASSISTANT.  IF THE FEDERAL COURT IS TO BE MERELY AN AUTOMATON STAMPING
THE PAPERS AN ATTORNEY GENERAL PRESENTS, THE JUDICIAL FUNCTION RISES TO
NO HIGHER LEVEL THAN AN IBM MACHINE.  THOSE WHO GREW UP WITH EQUITY AND
KNOW ITS GREAT HISTORY SHOULD NEVER TOLERATE THAT MECHANICAL
CONCEPTION. 

AN APPEAL TO THE EQUITY JURISDICTION OF THE FEDERAL DISTRICT COURT IS
AN APPEAL TO ITS SOUND DISCRETION.  ONE HISTORIC FEATURE OF EQUITY IS
THE MOLDING OF DECREES TO FIT THE REQUIREMENTS OF PARTICULAR CASES. 
SEE BROWN V. BOARD OF EDUCATION, 349 U.S. 294, 300.  EQUITY DECREES ARE
NOT LIKE THE PACKAGED GOODS THIS MACHINE AGE PRODUCES.  THEY ARE
UNIFORM ONLY IN THAT THEY SEEK TO DO EQUITY IN A GIVEN CASE.  (FN9)  WE
SHOULD HESITATE LONG BEFORE WE CONCLUDE THAT CONGRESS INTENDED AN
INJUNCTION TO ISSUE AGAINST 500,000 WORKERS WHEN THE INACTIVITY OF ONLY
5,000 OR 10,000 OF THE TOTAL IMPERILS THE NATIONAL "SAFETY."  THAT
WOULD BE TOO SHARP A BREAK WITH TRADITIONAL EQUITY PRACTICE FOR US TO
ACCEPT, UNLESS THE STATUTORY MANDATE WERE CLEAR AND UNAMBIGUOUS.  IN
SITUATIONS NO MORE CLOUDED WITH DOUBT THAN THE PRESENT ONE WE HAVE
REFUSED TO READ A STATUTORY AUTHORITY TO ISSUE A DECREE AS A COMMAND TO
DO IT.  HECHT CO. V. BOWLES, 321 U.S. 321.  WE THERE SAID, "A GRANT OF
JURISDICTION TO ISSUE COMPLIANCE ORDERS HARDLY SUGGESTS AN ABSOLUTE
DUTY TO DO SO UNDER ANY AND ALL CIRCUMSTANCES."  ID., AT 329.  AND SEE
PORTER V. WARNER CO., 328 U.S. 395, 398.  THE CONCURRING OPINION SEEKS
TO DISTINGUISH THE BOWLES CASE BY LAYING GREAT STRESS ON THE LANGUAGE
OF THE STATUTE THERE IN ISSUE TO THE EFFECT THAT REMEDY BY INJUNCTION
"OR OTHER ORDER" SHALL BE GRANTED, AS DISTINGUISHED FROM THE USE OF THE
WORDS "AND TO MAKE SUCH OTHER ORDERS" IN SEC. 208 PRESENTLY INVOLVED. 
IN THE BOWLES CASE, HOWEVER, WE EXPRESSLY DECLINED TO REACH THE
QUESTION WHETHER IT WAS AN ABUSE OF DISCRETION FOR THE DISTRICT COURT
TO DENY ANY RELIEF, WHICH IS WHAT IT DID IN THAT CASE.  ID., AT 331. 
MOREOVER, THE LANGUAGE OF THE STATUTE IN THE BOWLES CASE STATED THAT AN
INJUNCTION OR OTHER ORDER "SHALL BE GRANTED."  WE HAVE HERE NO SUCH
COMMAND, SINCE SEC.  208 ONLY PROVIDES THAT THE DISTRICT COURT "SHALL
HAVE JURISDICTION" TO ISSUE AN INJUNCTION AND OTHER ORDERS, AS MAY BE
APPROPRIATE. 

PLAINLY THERE IS AUTHORITY IN THE DISTRICT COURT TO PROTECT THE
NATIONAL "SAFETY" BY ISSUANCE OF AN INJUNCTION.  BUT THERE IS NOTHING
IN THIS RECORD TO SUSTAIN THE CONCLUSION THAT IT IS NECESSARY TO SEND
500,000 MEN BACK TO WORK TO GIVE THE DEFENSE DEPARTMENT ALL THE STEEL
IT NEEDS FOR THE NATION'S "SAFETY."  IF MORE MEN ARE SENT BACK TO WORK
THAN ARE NECESSARY TO FILL THE DEFENSE NEEDS OF THE COUNTRY, OTHER
OBJECTIVES ARE BEING SERVED THAN THOSE SPECIFIED IN THE STATUTE.  WHAT
ARE THESE OTHER OBJECTIVES?  WHAT RIGHT DO COURTS HAVE IN SERVING
THEM?  WHAT AUTHORITY DO WE HAVE TO PLACE THE GREAT WEIGHT OF THIS
INJUNCTION ON THE BACKS OF LABOR, WHEN THE GREAT BULK OF THOSE AFFECTED
BY IT HAVE NOTHING TO DO WITH PRODUCTION OF GOODS NECESSARY FOR THE
NATION'S "SAFETY" IN THE MILITARY SENSE OF THAT WORD?  LABOR
INJUNCTIONS WERE LONG USED AS CUDGELS - SO BROAD IN SCOPE, SO
INDISCRIMINATE IN APPLICATION AS ONCE TO BE DUBBED "A 'SCARECROW'
DEVICE FOR CURBING THE ECONOMIC PRESSURE OF THE STRIKE."  SEE
FRANKFURTER AND GREENE, THE LABOR INJUNCTION (1930), PP. 107-108.  THE
CROP OF EVILS THAT GREW UP DURING THOSE REGIMES WAS DIFFERENT IN SOME
RESPECTS FROM THOSE GENERATED BY THIS DECREE.  THE PROBLEMS OF
VAGUENESS, OF UNCERTAINTY, OF DETAILED JUDICIAL SUPERVISION THAT MADE
POLICE COURTS OUT OF EQUITY COURTS ARE NOT PRESENT HERE.  BUT THE SAME
INDISCRIMINATE LEVELING OF THOSE WITHIN AND THOSE WITHOUT THE LAW IS
PRESENT.  THE INJUNCTION APPLIES ALL THE FORCE OF THE FEDERAL
GOVERNMENT AGAINST MEN WHOSE WORK HAS NOTHING TO DO WITH MILITARY
DEFENSE AS WELL AS AGAINST THOSE WHOSE INACTIVITY IMPERILS THE
"NATIONAL SAFETY."  IT IS NOT CONFINED TO THE PRECISE EVIL AT WHICH THE
PRESENT ACT IS AIMED.  LIKE THE OLD LABOR INJUNCTIONS THAT BROUGHT
DISCREDIT TO THE FEDERAL JUDICIARY THIS IS A BLANKET INJUNCTION BROAD
AND ALL-INCLUSIVE, BRINGING WITHIN ITS SCOPE MEN WHOSE WORK HAS NOTHING
WHATSOEVER TO DO WITH THE DEFENSE NEEDS OF THE NATION.  BEING WIDE OF
THE STATUTORY STANDARD IT HAS, TO USE THE WORDS OF MR. JUSTICE
BRANDEIS, ALL THE VICES OF THE INJUNCTION WHICH IS USED "TO ENDOW
PROPERTY WITH ACTIVE, MILITANT POWER WHICH WOULD MAKE IT DOMINANT OVER
MEN."   SEE TRUAX V. CORRIGAN, 257 U.S. 312, 354, 368 (DISSENTING
OPINION).  I CANNOT BELIEVE THAT CONGRESS INTENDED THE FEDERAL COURTS
TO ISSUE INJUNCTIONS THAT BLUDGEON ALL WORKERS MERELY BECAUSE THE LABOR
OF A FEW OF THEM IS NEEDED IN THE INTEREST OF "NATIONAL SAFETY." 

LABOR GOES BACK TO WORK UNDER THE PRESENT INJUNCTION ON TERMS
DICTATED BY THE INDUSTRY, NOT ON TERMS THAT HAVE BEEN FOUND TO BE FAIR
TO LABOR AND TO INDUSTRY.  THE STEEL INDUSTRY EXPLOITS A TREMENDOUS
ADVANTAGE: 

"OUR STEEL MILLS CAN PRODUCE IN NINE MONTHS ALL THE METAL THE COUNTRY
CAN USE IN A YEAR.  THAT MEANS A THREE-MONTH STRIKE COSTS THE COMPANIES
NOTHING IN ANNUAL SALES, AND UNCLE SAM PICKS UP THE TAB FOR HALF OF
THEIR OUT-OF-POCKET STRIKE LOSSES IN THE FORM OF EVENTUAL TAX
ADJUSTMENTS. 

"THE INDUSTRY'S FINAL INSURANCE AGAINST ANY ACUTE FINANCIAL PINCH IS
THE CERTAINTY THAT THE PRESIDENT WILL HAVE TO STEP IN WITH A NATIONAL
EMERGENCY INJUNCTION UNDER THE TAFT-HARTLEY ACT WHENEVER STEEL
STOCKPILES SHRINK TO THE DANGER LEVEL.  THIS TAKES MUCH OF THE BITE OUT
OF THE UNION'S ASSAULT ON THE POCKETBOOKS OF THE STEEL PRODUCERS." 
(FN10) 

THIS IS A MATTER WHICH EQUITY SHOULD TAKE INTO CONSIDERATION.  FOR A
CHANCELLOR SITS TO DO EQUITY. 

SOME YEARS AGO THIS COURT STRUCK DOWN AS UNCONSTITUTIONAL STATE
STATUTES MAKING ARBITRATION OF LABOR DISPUTES MANDATORY.  WOLFF CO. V.
INDUSTRIAL COURT, 262 U.S. 522; DORCHY V. KANSAS, 264 U.S. 286.  THOSE
CASES HELD THAT COMPULSORY ARBITRATION VIOLATED THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  ONE CAN ONLY GUESS AS TO WHAT
INSTITUTIONS OF ADJUDICATION WE MIGHT HAVE IN THIS FIELD TODAY HAD THAT
EXPERIMENT BEEN GIVEN A CHANCE.  THE EXPERIMENT, HOWEVER, DID NOT
SURVIVE, AND WE HAVE HAD LITTLE EXPERIENCE WITH IT.  (FN11)  COLLECTIVE
BARGAINING AND MEDIATION ARE TODAY THE NORM, EXCEPT FOR THE PERIOD OF
TIME IN WHICH AN INJUNCTION IS IN FORCE.  BY THE TERMS OF SEC. 209,
HOWEVER, ANY INJUNCTION RENDERED MAY NOT CONTINUE LONGER THAN 80 DAYS. 
THE ACT THUS PERMITS AN INJUNCTION RESTRICTED IN DURATION AND NARROWLY
CONFINED BY THE REQUIREMENTS OF THE "NATIONAL HEALTH OR SAFETY."  WHEN
WE UPHOLD THIS INJUNCTION WE FORCE MEN BACK TO WORK WHEN THEIR
INACTIVITY HAS NO RELATION TO "NATIONAL HEALTH OR SAFETY."  THOSE WHOSE
INACTIVITY PRODUCES THE PERIL TO "NATIONAL HEALTH OR SAFETY" WHICH THE
ACT GUARDS AGAINST AND ONLY THOSE SHOULD BE COVERED IN THE INJUNCTION. 
THE REST - WHO ARE THE VAST MAJORITY OF THE 500,000 ON STRIKE - SHOULD
BE TREATED AS THE EMPLOYERS ARE TREATED.  THEY SHOULD CONTINUE UNDER
THE REGIME OF COLLECTIVE BARGAINING AND MEDIATION UNTIL THEY SETTLE
THEIR DIFFERENCES OR UNTIL CONGRESS PROVIDES DIFFERENT OR BROADER
REMEDIES.  WHEN WE ASSUME THAT ALL THE STEELWORKERS ARE PRODUCING STEEL
FOR DEFENSE WHEN IN TRUTH ONLY A FRACTION OF THEM ARE, WE ARE
FULFILLING THE DREAMS OF THOSE WHO SPONSORED THE HOUSE BILL AND FAILED
IN THEIR EFFORTS TO HAVE CONGRESS LEGISLATE SO BROADLY. 

THOUGH UNLIKELY, IT IS POSSIBLE THAT, HAD THE DISTRICT COURT GIVEN
THE PROBLEM THE CONSIDERATION THAT IT DESERVES, IT COULD HAVE FOUND
THAT THE ONLY WAY TO REMOVE THE PERIL TO NATIONAL SAFETY CAUSED BY THE
STRIKE WAS TO ISSUE THE BROAD, BLANKET INJUNCTION.  IT MAY BE THAT IT
WOULD BE FOUND IMPRACTICAL TO SEND ONLY PART OF THE STEELWORKERS BACK
TO WORK.  THE RECORD IN THIS CASE, HOWEVER, IS DEVOID OF EVIDENCE TO
SUSTAIN THAT POSITION.  (FN12)  FURTHERMORE, THERE IS NO INDICATION
THAT THE DISTRICT COURT EVER EVEN CONSIDERED SUCH A POSSIBILITY.  I AM
UNWILLING TO TAKE JUDICIAL NOTICE THAT IT REQUIRES 100% OF THE WORKERS
TO PRODUCE THE STEEL NEEDED FOR NATIONAL DEFENSE WHEN 99% OF THE OUTPUT
IS DEVOTED TO PURPOSES ENTIRELY UNCONNECTED WITH DEFENSE PROJECTS. 

THE TRIER OF FACT UNDER OUR FEDERAL JUDICIAL SYSTEM IS THE DISTRICT
COURT - NOT THIS COURT NOR THE COURT OF APPEALS.  NO FINDING WAS MADE
BY THE DISTRICT COURT ON THE FEASIBILITY OF A LIMITED REOPENING OF THE
STEEL MILLS AND IT IS NOT, AS THE CONCURRING OPINION SUGGESTS, THE
PROVINCE OF THE COURT OF APPEALS TO RESOLVE CONFLICTS IN THE EVIDENCE
THAT WAS BEFORE THE DISTRICT COURT. 

I WOULD REVERSE THIS DECREE AND REMAND THE CAUSE TO THE DISTRICT
COURT FOR PARTICULARIZED FINDINGS (FN13) AS TO HOW THE STEEL STRIKE
IMPERILS THE "NATIONAL HEALTH" AND WHAT PLANTS NEED TO BE REOPENED TO
PRODUCE THE SMALL QUANTITY OF STEEL NOW NEEDED FOR THE NATIONAL
"SAFETY."  (FN14)  THERE WOULD ALSO BE OPEN FOR INQUIRY AND FINDINGS
ANY QUESTIONS PERTAINING TO "NATIONAL HEALTH" IN THE NARROW SENSE IN
WHICH THE ACT USES THOSE WORDS. 

FN1  LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947
(G.P.O. 1948), VOL. I, PP. 274, 276. 

FN2  LEGISLATIVE HISTORY, VOL. I, SUPRA, NOTE 1, PP. 214-215. 

FN3  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., P. 64. 

FN4  93 CONG. REC. 3513. 

FN5  FOR DISCUSSION OF THE ABUSIVE USE OF BLANKET INJUNCTIONS IN
LABOR CONTROVERSIES, SEE ALLEN, INJUNCTION AND ORGANIZED LABOR, 28 AM.
L. REV. 828; CHAFEE, THE INQUIRING MIND, P. 198; DUNBAR, GOVERNMENT BY
INJUNCTION, 13 L.Q. REV. 347; FREY, THE LABOR INJUNCTION: AN EXPOSITION
OF GOVERNMENT BY JUDICIAL CONSCIENCE AND ITS MENACE; LANE, CIVIL WAR IN
WEST VIRGINIA; PEPPER, INJUNCTIONS IN LABOR DISPUTES, 49 A.B.A. REP.
174; ROYCE, LABOR, THE FEDERAL ANTI-TRUST LAWS, AND THE SUPREME COURT,
5 N.Y.U.L.Q. REV. 19; STIMSON, THE MODERN USE OF INJUNCTIONS, 10 POL. 
SCI.  Q. 189. 

ON THE NORRIS-LAGUARDIA ACT AND WHAT CONGRESS INTENDED TO ABOLISH BY
IT, SEE NORRIS, INJUNCTIONS IN LABOR DISPUTES, 16 MARQ.  L. REV. 157;
WITTE, THE FEDERAL ANTI-INJUNCTION ACT, 16 MINN. L. REV. 638. 

FN6  93 CONG. REC. 6860. 

SENATOR SMITH SAID IN LIKE VEIN: 

"FURTHERMORE IN TITLE II OF THE BILL WE PROVIDE FOR THE EXTREME CASES
WHICH THREATEN NATIONAL PARALYSIS.  TO MEET AN INDUSTRY-WIDE STOPPAGE
OF SOME KIND WHICH MAY CAUSE INJURY TO THE HEALTH OR SAFETY OF
140,000,000 PEOPLE, SUCH AS A TRANSPORTATION STRIKE, OR A COAL STRIKE,
WE HAVE SET UP SPECIAL MACHINERY WHICH WILL ENABLE THE ATTORNEY
GENERAL, ON HIS OWN INITIATIVE, TO PETITION THE COURTS TO PREVENT
EITHER A SHUT-DOWN OR A WALK-OUT, UNTIL THE MEDIATION PROCESSES HAVE
HAD TIME TO FUNCTION."  93 CONG. REC. 4281. 

FN7  SECTION 208(A) PROVIDES: 

"UPON RECEIVING A REPORT FROM A BOARD OF INQUIRY THE PRESIDENT MAY
DIRECT THE ATTORNEY GENERAL TO PETITION ANY DISTRICT COURT OF THE
UNITED STATES HAVING JURISDICTION OF THE PARTIES TO ENJOIN SUCH STRIKE
OR LOCK-OUT OR THE CONTINUING THEREOF, AND IF THE COURT FINDS THAT SUCH
THREATENED OR ACTUAL STRIKE OR LOCK-OUT:    "(I)  AFFECTS AN ENTIRE
INDUSTRY OR A SUBSTANTIAL PART THEREOF ENGAGED IN TRADE, COMMERCE,
TRANSPORTATION, TRANSMISSION, OR COMMUNICATION AMONG THE SEVERAL STATES
OR WITH FOREIGN NATIONS, OR ENGAGED IN THE PRODUCTION OF GOODS FOR
COMMERCE; AND: 

"(II)  IF PERMITTED TO OCCUR OR TO CONTINUE, WILL IMPERIL THE
NATIONAL HEALTH OR SAFETY, IT SHALL HAVE JURISDICTION TO ENJOIN ANY
SUCH STRIKE OR LOCK-OUT, OR THE CONTINUING THEREOF, AND TO MAKE SUCH
OTHER ORDERS AS MAY BE APPROPRIATE." 

FN8  THE RECORD SHOWS, AS DOES THE PRESIDENT'S STATEMENT, SUPRA, THAT
MILLS ACCOUNTING FOR AT LEAST 15% OF THE NATION'S STEEL PRODUCTION ARE
STILL IN OPERATION AND ARE UNAFFECTED BY THE STRIKE. 

FN9  EQUITY HAS CONTRIVED ITS REMEDIES AND HAS ALWAYS PRESERVED THE
ELEMENTS OF FLEXIBILITY AND EXPANSIVENESS SO THAT NEW ONES MAY BE
INVENTED, OR OLD ONES MODIFIED, TO MEET THE REQUIREMENTS OF EVERY
CASE.  UNION PACIFIC R. CO. V. CHICAGO R.I.&P.R. CO., 163 U.S. 564,
601.  AND THE EXTENT TO WHICH THE COURT MAY GRANT OR WITHHOLD ITS AID,
AND THE MANNER OF MOLDING ITS REMEDIES MAY BE AFFECTED BY THE PUBLIC
INTEREST INVOLVED.  UNITED STATES V. MORGAN, 307 U.S. 183, 194;
SECURITIES & EXCHANGE COMM'N V. UNITED STATES REALTY CO., 310 U.S. 434,
455.  THERE IS IN FACT NO LIMIT TO THE VARIETY OF EQUITABLE REMEDIES
WHICH CAN BE APPLIED TO THE CIRCUMSTANCES OF A PARTICULAR CASE.  1
POMEROY'S EQUITY JURISPRUDENCE (5TH ED.)  SEC.  109. 

AN EQUITY COURT MAY, BY TRIAL FOR A LIMITED TERM, DETERMINE JUST HOW
MUCH RELIEF IS REQUIRED TO MEET THE SITUATION, AND THEREBY AVOID
UNNECESSARY HARDSHIP TO ANY OF THE PARTIES.  MCCLINTOCK ON EQUITY (2D
ED.)  SEC.  30; POMEROY, SUPRA, SECS. 115, 116.  THIS PRINCIPLE HAS
BEEN APPLIED BY THIS COURT SEVERAL TIMES, E.G., WHERE AN INJUNCTION WAS
SOUGHT AGAINST THE POLLUTION OF A STREAM, THE DEFENDANT WAS PERMITTED
TO CONSTRUCT SETTLING BASINS TO ALLEVIATE THE INJURY TO THE PLAINTIFF
AND THE INJUNCTION WAS MODIFIED TO ALLOW EXPERIMENTS TOWARD THAT END. 
ARIZONA COPPER CO. V. GILLESPIE, 230 U.S. 46.  AND WHEN DEFENDANTS'
SMELTERS EMITTED NOXIOUS FUMES AN INJUNCTION WAS WITHHELD TO PERMIT
THEM TO DEVISE A PRACTICAL METHOD OF INSTALLING PURIFYING DEVICES. 
GEORGIA V. TENNESSEE COPPER CO., 237 U.S. 474.  SEE ALSO ALEXANDER V.
HILLMAN, 296 U.S. 222.  A MORE RECENT INSTANCE WHERE AN EQUITY DECREE
WAS FASHIONED TO MEET PROBLEMS FAR MORE COMPLICATED THAN THOSE
PRESENTED HERE WILL BE FOUND IN NEBRASKA V. WYOMING, 325 U.S. 589, 665
672.  THE PROBLEM THERE WAS THE DIVISION OF WATERS AMONG THE STATES
WHERE ENFORCEMENT OF STRICT LEGAL RIGHTS WOULD HAVE RESULTED IN
UNECONOMIC AND INEQUITABLE RESULTS.  THE MULTITUDE OF FACTORS WEIGHED
AND APPRAISED THERE MAKES THE DIFFICULTIES OF THE PRESENT CASE SEEM TO
BE LARGELY THE PRODUCT OF IMAGINATION OR PREJUDICE, NOT REALITIES OF
MODERN PLANT MANAGEMENT. 

FN10  RASKIN, TO PROVE KARL MARX WAS WRONG, N.Y. TIMES MAGAZINE, OCT.
25, 1959, PP. 12, 84. 

FN11  IT WAS STATED IN S. REP. NO. 105, 80TH CONG., 1ST SESS., PP. 13
14, IN REFERENCE TO THE NEW MACHINERY FOR SETTLING LABOR DISPUTES: 

"UNDER THE EXIGENCIES OF WAR THE NATION DID UTILIZE WHAT AMOUNTED TO
COMPULSORY ARBITRATION THROUGH THE INSTRUMENTALITY OF THE WAR LABOR
BOARD.  THIS SYSTEM, HOWEVER, TENDED TO EMPHASIZE UNDULY THE ROLE OF
THE GOVERNMENT, AND UNDER IT EMPLOYERS AND LABOR ORGANIZATIONS TENDED
TO AVOID SOLVING THEIR DIFFICULTIES BY FREE COLLECTIVE BARGAINING.  IT
IS DIFFICULT TO SEE HOW SUCH A SYSTEM COULD BE OPERATED INDEFINITELY
WITHOUT COMPELLING THE GOVERNMENT TO MAKE DECISIONS ON ECONOMIC ISSUES
WHICH IN NORMAL TIMES SHOULD BE SOLVED BY THE FREE PLAY OF ECONOMIC
FORCES."  AND SEE DISHMAN, THE PUBLIC INTEREST IN EMERGENCY LABOR
DISPUTES, 45 AM. POL.  SCI.  REV. 1100 (1951). 

FN12  SUCH AN OPINION WAS STATED IN AN AFFIDAVIT BY THE CHAIRMAN OF
THE COUNCIL OF ECONOMIC ADVISERS; BUT THAT IS CONCLUSIONAL ONLY.  THERE
HAS BEEN NO SIFTING OF THE FACTS TO DETERMINE WHETHER DEFENSE NEEDS CAN
BE SATISFIED BY PRACTICAL MEANS SHORT OF SENDING ALL MEN BACK TO WORK. 

FN13 THE PARTICULARIZED FINDINGS NECESSARY ARE ILLUSTRATED BY THOSE
IN UNITED STATES V. STEELWORKERS, 202 F.2D 132, 134: 

"AT ITS DUNKIRK PLANT THE COMPANY WAS THEN ENGAGED IN COMMERCE AND IN
THE PRODUCTION OF GOODS FOR COMMERCE, PRIMARILY IN THE 'HEAT EXCHANGER,
PRESSURE VESSEL AND PREFABRICATED PIPE INDUSTRY'; THE THREATENED STRIKE
WOULD NOT HAVE AFFECTED ALL, OR A SUBSTANTIAL PART, OF THAT INDUSTRY. 
A MAJOR PART OF THE DUNKIRK PLANT'S PRODUCTION WAS TO CARRY OUT
CONTRACTS THE COMPANY HAD WITH THE ATOMIC ENERGY COMMISSION AND CERTAIN
OF ITS PRIME CONTRACTORS TO FURNISH SPECIALIZED ARTICLES WHICH WERE
ESSENTIAL TO THE COMPLETION OF THE COMMISSION'S PROGRAM FOR
CONSTRUCTION OF FACILITIES NEEDED TO PRODUCE ATOMIC BOMBS FOR THE
NATIONAL DEFENSE.  THESE ESSENTIAL ARTICLES WERE HEAT EXCHANGER SHELLS
USED IN THE PRODUCTION OF HEAVY WATER NEEDED TO OPERATE NUCLEAR
REACTORS CAPABLE OF PRODUCING FISSIONABLE MATERIALS, GAS CONVERTER
ASSEMBLIES AND OTHER CRITICAL ITEMS ALL OF WHICH COULD HAVE BEEN
OBTAINED ELSEWHERE ONLY AFTER OTHER POTENTIAL SOURCES HAD BEEN EQUIPPED
TO PRODUCE THEM.  RESORT TO OTHER SOURCES WOULD, CONSEQUENTLY, HAVE
INVOLVED MONTHS OF DELAY AND SET BACK CORRESPONDINGLY THE CONSTRUCTION
PROGRAM OF THE COMMISSION AND THE PRODUCTION OF FISSIONABLE MATERIALS
AND ATOMIC WEAPONS VITAL TO THE NATIONAL DEFENSE.  THE THREATENED
STRIKE WOULD HAVE AFFECTED A SUBSTANTIAL PART OF THE ATOMIC WEAPON
INDUSTRY AND WOULD HAVE IMPERILED THE NATIONAL SAFETY." 

FN14  THE FACTOR OF "SAFETY" MAY WELL INVOLVE, FOR EXAMPLE, THE NEED
FOR REPLACEMENT OF EQUIPMENT ON RAILROAD TRAINS.  AN AFFIDAVIT OF THE
SECRETARY OF COMMERCE STATES: 

"THE CONTINUING AVAILABILITY OF MOST OF THESE STEEL SUPPLIES IS VITAL
TO THE NATION'S HEALTH AND SAFETY, USED AS THEY ARE FOR THE PRODUCTION
OF PERSONAL NECESSITIES, INCLUDING SURGICAL INSTRUMENTS, HEATING AND
REFRIGERATION EQUIPMENT, AND ARTICLES USED IN THE PREPARATION AND
PRESERVATION OF FOOD.  STEEL IS ALSO ESSENTIAL TO TRANSPORTATION, TO
THE PRODUCTION AND TRANSMISSION OF LIGHT AND POWER, TO THE PROVISION OF
SANITATION SERVICES, AND IN THE CONSTRUCTION AND MINING INDUSTRIES." 

BUT THE GOVERNMENT IN ORAL ARGUMENT CONCEDED THAT NEITHER THAT ASPECT
OF "SAFETY" NOR ANY OTHER ASPECT OF "SAFETY" APART FROM MILITARY
DEFENSE IS PRESENTED BY THIS RECORD, SINCE THERE ARE NO FINDINGS
SHOWING THE EXTENT TO WHICH INVENTORIES FOR THOSE OTHER PURPOSES MAY BE
IN SHORT SUPPLY. 
..END :














SEISMOGRAPH SERVICE CORP. V. MONAGHAN 361 U.S. 35 


NO. 265.  DECIDED OCTOBER 26, 1959.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  236 MISS.  278, 108 SO. 2D 721. 


SEISMOGRAPH SERVICE CORP. V. MONAGHAN, CHAIRMAN, STATE TAX COMMISSION. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















QUICKIE TRANSPORT CO. V. UNITED STATES 361 U.S. 36 


NO. 338.  DECIDED OCTOBER 26, 1959 - 169 F. SUPP. 826, AFFIRMED. 


QUICKIE TRANSPORT CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















WESTON V. SIGLER 361 U.S. 37 


NO. 8, MISC.  DECIDED OCTOBER 26, 1959. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO DISTRICT
COURT WITH INSTRUCTIONS TO HEAR ON MERITS PETITIONER'S APPLICATION FOR
HABEAS CORPUS. 

WESTON V. SIGLER, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO HEAR ON THE MERITS THE PETITIONER'S APPLICATION FOR A
WRIT OF HABEAS CORPUS. 

THE STAY OF EXECUTION HERETOFORE ENTERED BY THE DISTRICT COURT IS
CONTINUED IN EFFECT PENDING SUCH HEARING AND ANY APPEAL TAKEN
THEREFROM. 
..END :





SMITH V. UNITED STATES 361 U.S. 38 


NO. 27, MISC.  DECIDED OCTOBER 26, 1959 - CERTIORARI GRANTED AND
JUDGMENT REVERSED. 


SMITH V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED.  ELLIS
V. UNITED STATES, 356 U.S. 674. 
..END :















WORBETZ V. GOODMAN 361 U.S. 38 


NO. 174, MISC.  DECIDED OCTOBER 26, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


WORBETZ V. GOODMAN, WARDEN. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















HARRIS V. PENNSYLVANIA RAILROAD CO. 361 U.S. 15 


NO. 81.  DECIDED OCTOBER 19, 1959 - 168 OHIO ST. 582, 156 N.E.2D 822,
REVERSED. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
PROOFS JUSTIFIED WITH REASON THE JURY'S CONCLUSION THAT EMPLOYER
NEGLIGENCE PLAYED A PART IN PRODUCING PETITIONER'S INJURY.  THEREFORE,
CERTIORARI IS GRANTED; THE JUDGMENT OF THE SUPREME COURT OF OHIO
SETTING ASIDE A JUDGMENT FOR PETITIONER IS REVERSED; AND THE CAUSE IS
REMANDED. 

HARRIS V. PENNSYLVANIA RAILROAD CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
SUPREME COURT OF OHIO IS REVERSED AND THE CASE IS REMANDED FOR
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  WE HOLD THAT THE PROOFS
JUSTIFIED WITH REASON THE JURY'S CONCLUSION, EMBODIED IN ANSWERS TO
INTERROGATORIES TO JURY NUMBERS I AND II, THAT EMPLOYER NEGLIGENCE
PLAYED A PART IN PRODUCING THE PETITIONER'S INJURY.  ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500.  SEE ALSO MOORE V. TERMINAL RAILROAD
ASSN., 358 U.S. 31, AND CASES CITED THEREIN.  WE THEREFORE FIND IT
UNNECESSARY TO CONSIDER THE PETITIONER'S CHALLENGE TO THE OHIO
PROCEDURE GOVERNING INTERROGATORIES TO THE JURY. 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI IS IMPROVIDENTLY GRANTED. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE SUGGESTION THAT THIS AND RELATED DECISIONS MEAN THAT WE HAVE
ELIMINATED "ALL MEANINGFUL JUDICIAL SUPERVISION OVER JURY VERDICTS" IN
FELA CASES PROMPTS ME TO FILE THIS OPINION AND BRING UP TO DATE THE
COMPILATION WHICH I MADE IN WILKERSON V. MCCARTHY, 336 U.S. 53, 68, 71
73.  THE WILKERSON CASE WAS DECIDED JANUARY 31, 1949.  THE ATTACHED
APPENDIX PRESENTS A STATISTICAL SUMMARY (FN1) OF OUR STEWARDSHIP OF
THESE FELA CASES FROM THAT DATE TO OCTOBER 19, 1959. 

OF THE 110 PETITIONS FOR CERTIORARI FILED DURING THIS PERIOD OF MORE
THAN 10 YEARS, 73 WERE FILED BY EMPLOYEES AND 37 WERE FILED BY
EMPLOYERS.  OF THESE, 33 WERE GRANTED, EACH AT THE INSTANCE OF AN
EMPLOYEE WHO COMPLAINED OF THE LOWER COURT'S WITHHOLDING THE CASE FROM
THE JURY OR OVERTURNING A JURY VERDICT IN HIS FAVOR.  THIRTY CASES WERE
REVERSED FOR USURPATION OF THE JURY FUNCTION; AND IN EACH OF THREE THE
LOWER COURT'S DECISION WAS SUSTAINED. 

OF THE 77 PETITIONS DENIED, 32 WERE BY EMPLOYEES WHO SOUGHT REVERSAL
OF A LOWER COURT'S DECISION TO WITHHOLD THE CASE FROM THE JURY OR TO
UPSET A JURY'S VERDICT.  EIGHT MORE EMPLOYEES WANTED THIS COURT TO
OVERTURN JURY VERDICTS RENDERED IN THE EMPLOYERS' FAVOR. 

OF THE PETITIONS FILED BY EMPLOYERS, 35 ASKED THIS COURT TO REVERSE A
LOWER COURT DECISION UPHOLDING A JURY VERDICT OR HOLDING THAT THE CASE
SHOULD HAVE BEEN SUBMITTED TO A JURY.  EMPLOYERS IN TWO OTHER PETITIONS
COMPLAINED OF THE LOWER COURT'S ACTION IN SETTING ASIDE A JURY VERDICT
AND GRANTING A NEW TRIAL. 

IT IS APPARENT FROM THE DECISIONS WHERE WE REFUSED TO REVIEW CASES IN
WHICH LOWER COURTS WITHHELD CASES FROM THE JURY OR SET ASIDE JURY
VERDICTS (OR WHERE, HAVING GRANTED CERTIORARI, WE SUSTAINED THE LOWER
COURTS IN THAT ACTION) THAT THE SYSTEM OF JUDICIAL SUPERVISION STILL
EXISTS IN THIS AS IN OTHER TYPES OF CASES. 

IT IS SUGGESTED THAT THE COURT HAS CONSUMED TOO MUCH OF ITS TIME IN
REVIEWING THESE FELA CASES.  AN EXAMINATION OF THE 33 CASES IN WHICH
THE COURT HAS GRANTED CERTIORARI DURING THE PERIOD OF OVER 10 YEARS
COVERED BY THE ATTACHED APPENDIX REVEALS THAT 16 OF THESE CASES WERE
SUMMARILY REVERSED WITHOUT ORAL ARGUMENT AND WITHOUT FULL OPINIONS. 
ONLY 17 CASES WERE ARGUED DURING THIS PERIOD OF MORE THAN A DECADE AND,
OF THESE, 5 WERE DISPOSED OF BY BRIEF PER CURIAM OPINIONS.  ONLY 12
CASES IN OVER 10 YEARS WERE ARGUED, BRIEFED AND DISPOSED OF WITH FULL
OPINIONS BY THE COURT.  WE HAVE GRANTED CERTIORARI IN THESE CASES ON AN
AVERAGE OF LESS THAN 3 PER YEAR AND HAVE GIVEN PLENARY CONSIDERATION TO
SLIGHTLY MORE THAN 1 PER YEAR.  WASTAGE OF OUR TIME IS THEREFORE A
FALSE ISSUE. 

THE DIFFERENCE BETWEEN THE MAJORITY AND MINORITY OF THE COURT IN OUR
TREATMENT OF FELA CASES CONCERNS THE DEGREE OF VIGILANCE WE SHOULD
EXERCISE IN SAFEGUARDING THE JURY TRIAL - GUARANTEED BY THE SEVENTH
AMENDMENT AND PART AND PARCEL OF THE REMEDY UNDER THIS FEDERAL ACT WHEN
SUIT IS BROUGHT IN STATE COURTS.  SEE BAILEY V. CENTRAL VERMONT R. CO.,
319 U.S. 350, 354; DICE V. AKRON, C.&Y.R. CO., 342 U.S. 359, 363. 
WHETHER THAT RIGHT HAS BEEN IMPAIRED IN A PARTICULAR INSTANCE OFTEN
PRODUCES A CONTRARIETY OF VIEWS.  YET THE PRACTICE OF THE COURT IN
ALLOWING FOUR OUT OF NINE VOTES TO CONTROL THE CERTIORARI DOCKET IS
WELL ESTABLISHED AND OF LONG DURATION.  (FN2)  WITHOUT IT, THE VAST
DISCRETION WHICH CONGRESS ALLOWED US IN GRANTING OR DENYING CERTIORARI
MIGHT NOT BE TOLERABLE.  EVERY MEMBER OF THE COURT HAS KNOWN INSTANCES
WHERE HE HAS STRONGLY PROTESTED THE ACTION OF THE MINORITY IN BRINGING
A CASE OR TYPE OF CASE HERE FOR ADJUDICATION.  HE MAY THEN FEEL THAT
THERE ARE MORE IMPORTANT AND PRESSING MATTERS TO WHICH THE COURT SHOULD
GIVE ITS ATTENTION.  THAT IS, HOWEVER, A PRICE WE PAY FOR KEEPING OUR
PROMISE TO CONGRESS (FN3) TO LET THE VOTE OF FOUR JUSTICES BRING UP ANY
CASE HERE ON CERTIORARI. 

FN1  CASES IN WHICH PETITIONS FOR CERTIORARI HAVE BEEN GRANTED BUT
WHICH HAVE NOT YET BEEN DECIDED ON THE MERITS HAVE NOT BEEN INCLUDED
NOR HAVE CASES BEEN INCLUDED WHICH DID NOT PRESENT ISSUES OF NEGLIGENCE
OR CAUSATION UNDER THE ACT.  MOREOVER, PETITIONS SEEKING REVIEW OF
JUDGMENTS OF STATE COURTS GRANTING NEW TRIALS ARE NOT INCLUDED BECAUSE
WE USUALLY TREAT THEM AS NOT BEING "FINAL" JUDGMENTS.  SEE 28 U.S.C.
SEC. 1257; BRUCE V. TOBIN, 245 U.S. 18. 

FN2  WHEN THE ACT OF FEBRUARY 13, 1925 (43 STAT. 936), WHICH
BROADENED OUR CERTIORARI JURISDICTION, WAS BEFORE THE CONGRESS, MR.
JUSTICE VAN DEVANTER, SPEAKING FOR THE COURT, MADE EXPLICIT THAT THE
"RULE OF FOUR" GOVERNS THE GRANT OF PETITIONS FOR CERTIORARI.  HE
TESTIFIED BEFORE THE SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE AS
FOLLOWS: 

"  ...  IF THERE WERE FIVE VOTES AGAINST GRANTING THE PETITION AND
FOUR IN FAVOR OF GRANTING IT, IT WOULD BE GRANTED, BECAUSE WE PROCEED
UPON THE THEORY THAT WHEN AS MANY AS FOUR MEMBERS OF THE COURT, AND
EVEN THREE IN SOME INSTANCES, ARE IMPRESSED WITH THE PROPRIETY OF OUR
TAKING THE CASE THE PETITION SHOULD BE GRANTED.  THIS IS THE UNIFORM
WAY IN WHICH PETITIONS FOR WRITS OF CERTIORARI ARE CONSIDERED." 
HEARINGS ON S. 2060, FEB. 2, 1924, 68TH CONG.,  1ST SESS., P. 29.  AND
SEE HEARINGS ON H.R. 8206, DEC. 18, 1924, 68TH CONG., 2D SESS., P. 8. 

FN3  THE "RULE OF FOUR" WAS GIVEN AS ONE OF THE REASONS WHY THE
CONGRESS THOUGHT THAT THE INCREASE OF OUR DISCRETIONARY JURISDICTION
WAS WARRANTED.  THE HOUSE REPORT STATED: 

"LEST IT SHOULD BE THOUGHT THAT THE INCREASE OF DISCRETIONARY
JURISDICTION MIGHT IMPAIR THE ADMINISTRATION OF JUSTICE AND LEAD TO
PARTIAL HEARINGS AND NOT SECURE A DECISION BY THE WHOLE COURT, IT IS
PROPER TO CALL ATTENTION TO THE VERY THOROUGH AND COMPLETE SYSTEM BY
WHICH DISCRETIONARY JURISDICTION IS EXERCISED.  IN GRANTING OR REFUSING
A PRAYER FOR A CERTIORARI THE PETITIONER GETS THE JUDGMENT OF THE WHOLE
COURT.  THE APPLICATION IS NOT DISPOSED OF BY A SINGLE JUSTICE.  THE
LUMINOUS AND INFORMING STATEMENT OF MR. JUSTICE VAN DEVANTER TELLS THE
WHOLE STORY: 

"'WHILE THE AUTHORITY OF THE SUPREME COURT TO TAKE CASES ON PETITION
FOR CERTIORARI IS SPOKEN OF AS A DISCRETIONARY JURISDICTION, THIS DOES
NOT MEAN THAT THE COURT IS AUTHORIZED MERELY TO EXERCISE A WILL IN THE
MATTER BUT RATHER THAT THE PETITION IS TO BE GRANTED OR DENIED
ACCORDING TO A SOUND JUDICIAL DISCRETION.  WHAT ACTUALLY IS DONE MAY
WELL BE STATED HERE WITH SOME PARTICULARITY.  THE PARTY AGGRIEVED BY
THE DECISION OF THE CIRCUIT COURT OF APPEALS AND SEEKING A FURTHER
REVIEW IN THE SUPREME COURT IS REQUIRED TO PRESENT TO IT A PETITION AND
ACCOMPANYING BRIEF, SETTING FORTH THE NATURE OF THE CASE, WHAT
QUESTIONS ARE INVOLVED, HOW THEY WERE DECIDED IN THE CIRCUIT COURT OF
APPEALS, AND WHY THE CASE SHOULD NOT REST ON THE DECISION OF THAT
COURT.  THE PETITION AND BRIEF ARE REQUIRED TO BE SERVED ON THE OTHER
PARTY, AND TIME IS GIVEN FOR THE PRESENTATION OF AN OPPOSING BRIEF. 
WHEN THIS HAS BEEN DONE COPIES OF THE PRINTED RECORD AS IT CAME FROM
THE CIRCUIT COURT OF APPEALS AND OF THE PETITION AND BRIEFS ARE
DISTRIBUTED AMONG THE MEMBERS OF THE SUPREME COURT, AND EACH JUDGE
EXAMINES THEM AND PREPARES A MEMORANDUM OR NOTE INDICATING HIS VIEW OF
WHAT SHOULD BE DONE. 

"'IN CONFERENCE THESE CASES ARE CALLED, EACH IN ITS TURN, AND EACH
JUDGE STATES HIS VIEWS IN EXTENSO OR BRIEFLY AS HE THINKS PROPER; AND
WHEN ALL HAVE SPOKEN ANY DIFFERENCE IN OPINION IS DISCUSSED AND THEN A
VOTE IS TAKEN.  I EXPLAIN THIS AT SOME LENGTH BECAUSE IT SEEMS TO BE
THOUGHT OUTSIDE THAT THE CASES ARE REFERRED TO PARTICULAR JUDGES, AS,
FOR INSTANCE, THAT THOSE COMING FROM A PARTICULAR CIRCUIT ARE REFERRED
TO THE JUSTICE ASSIGNED TO THAT CIRCUIT, AND THAT HE REPORTS ON THEM,
AND THE OTHERS ACCEPT HIS REPORT.  THAT IMPRESSION IS WHOLLY AT
VARIANCE WITH WHAT ACTUALLY OCCURS. 

"'WE DO NOT GRANT OR DENY THESE PETITIONS MERELY ACCORDING TO A
MAJORITY VOTE.  WE ALWAYS GRANT THE PETITION WHEN AS MANY AS FOUR THINK
THAT IT SHOULD BE GRANTED AND SOMETIMES WHEN AS MANY AS THREE THINK
THAT WAY.  WE PROCEED UPON THE THEORY THAT, IF THAT NUMBER OUT OF THE
NINE ARE IMPRESSED WITH THE THOUGHT THAT THE CASE IS ONE THAT OUGHT TO
BE HEARD AND DECIDED BY US, THE PETITION SHOULD BE GRANTED.'"  H.R.
REP. NO. 1075, 68TH CONG., 2D SESS., P. 3. 

NOTE:  FOR DISSENTING OPINION OF MR. JUSTICE HARLAN, JOINED BY MR.
JUSTICE WHITTAKER, SEE POST, P. 25. 

        APPENDIX TO OPINION OF MR. JUSTICE

                   DOUGLAS, CONCURRING. 

        I. CASES IN WHICH CERTIORARI WAS GRANTED 

A. WHERE LOWER COURT WHICH WITHHELD THE CASE FROM THE JURY OR SET
ASIDE A JURY VERDICT FOR THE EMPLOYEE AND ORDERED A NEW TRIAL OR
RENDERED JUDGMENT FOR THE EMPLOYER WAS REVERSED: 

HILL V. ATLANTIC COAST LINE R. CO., 336 U.S. 911. 

URIE V. THOMPSON, 337 U.S. 163. 

BROWN V. WESTERN R. OF ALABAMA, 338 U.S. 294. 

CARTER V. ATLANTIC & ST. ANDREWS BAY R. CO., 338 U.S. 430. 

STONE V. NEW YORK, CHICAGO & ST. LOUIS R. CO., 344 U.S. 407. 

HARSH V. ILLINOIS TERMINAL R. CO., 348 U.S. 940. 

SMALLS ET AL. V. ATLANTIC COAST LINE R. CO., 348 U.S. 946. 

O'NEILL V. BALTIMORE & OHIO R. CO., 348 U.S. 956. 

NEESE V. SOUTHERN R. CO., 350 U.S. 77. 

ANDERSON V. ATLANTIC COAST LINE R. CO., 350 U.S. 807. 

STRICKLAND V. SEABOARD AIR LINE R. CO., 350 U.S. 893 

CAHILL V. NEW YORK, N.H.&H.R. CO., 350 U.S. 898, 351 U.S. 183. 

ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500. 

WEBB V. ILLINOIS CENTRAL R. CO., 352 U.S. 512. 

ARNOLD V. PANHANDLE & SANTA FE R. CO., 353 U.S. 360. 

FUTRELLE V. ATLANTIC COAST LINE R. CO., 353 U.S. 920. 

SHAW V. ATLANTIC COAST LINE R. CO. ET AL., 353 U.S. 920. 

DEEN V. GULF, COLORADO & SANTA FE R. CO., 353 U.S. 925. 

THOMSON V. TEXAS & PACIFIC R. CO., 353 U.S. 926. 

MCBRIDE V. TOLEDO TERMINAL R. CO., 354 U.S. 517. 

RINGHISER V. CHESAPEAKE & OHIO R. CO., 354 U.S. 901. 

GIBSON V. THOMPSON, 355 U.S. 18. 

STINSON V. ATLANTIC COAST LINE R. CO., 355 U.S. 62. 

HONEYCUTT V. WABASH R. CO., 355 U.S. 424. 

FERGUSON V. ST. LOUIS-SAN FRANCISCO R. CO., 356 U.S. 41. 

SINKLER V. MISSOURI PACIFIC R. CO., 356 U.S. 326. 

MOORE V. TERMINAL R. ASSN., 358 U.S. 31. 

BAKER ET AL. V. TEXAS & PACIFIC R. CO., 359 U.S. 227. 

CONNER V. BUTLER, POST, P. 29. 

HARRIS V. PENNSYLVANIA R. CO., ANTE, P. 15. 

B. WHERE LOWER COURT WHICH WITHHELD THE CASE FROM THE JURY OR SET
ASIDE A JURY VERDICT FOR THE EMPLOYEE AND ORDERED A NEW TRIAL OR
RENDERED JUDGMENT FOR THE EMPLOYER WAS SUSTAINED: 

REYNOLDS V. ATLANTIC COAST LINE R. CO., 336 U.S. 207. 

MOORE V. CHESAPEAKE & OHIO R. CO., 340 U.S. 573. 

HERDMAN V. PENNSYLVANIA R. CO., 352 U.S. 518. 

          II.  CASES IN WHICH CERTIORARI WAS DENIED. 

A. WHERE LOWER COURT WITHHELD CASE FROM THE JURY OR OVERTURNED A JURY
VERDICT FOR EMPLOYEE AND RENDERED JUDGMENT FOR THE EMPLOYER: 

SCOCOZZA ET AL. V. ERIE R. CO., 337 U.S. 907. 

KILLIAN V. PENNSYLVANIA R. CO. ET AL., 338 U.S. 819. 

LAVENDER V. ILLINOIS CENTRAL R. CO., 338 U.S. 822. 

ROBERTS V. ALABAMA GREAT SOUTHERN R. CO., 340 U.S. 829. 

EMMICK V. BALTIMORE & OHIO R. CO., 340 U.S. 831. 

ROBERTS V. MISSOURI-KANSAS-TEXAS R. CO., 340 U.S. 832. 

GENTRY V. SEABOARD AIR LINE R. CO., 340 U.S. 853. 

MOLETON V. UNION PACIFIC R. CO., 340 U.S. 932. 

HEALY V. PENNSYLVANIA R. CO., 340 U.S. 935. 

OTTLEY V. ST. LOUIS-SAN FRANCISCO R. CO., 340 U.S. 948. 

CRAVEN V. ATLANTIC COAST LINE R. CO., 340 U.S. 952. 

JAROSZEWSKI V. CENTRAL R. CO., 344 U.S. 839. 

CREAMER V. OGDEN UNION R. & DEPOT CO., 344 U.S. 912. 

FRIZZEL V. WABASH R. CO., 344 U.S. 934. 

GILL V. PENNSYLVANIA R. CO., 346 U.S. 816. 

SMITH V. BALTIMORE & OHIO R. CO., 346 U.S. 838. 

WETHERBEE V. ELGIN, JOLIET & EASTERN R. CO., 346 U.S. 867. 

SHELLHAMMER V. LEHIGH VALLEY R. CO., 347 U.S. 990. 

KEIPER V. NORTHWESTERN PACIFIC R. CO., 350 U.S. 948. 

CLICK V. JACKSONVILLE TERMINAL CO., 350 U.S. 994. 

BARNETT V. TERMINAL R. ASSN. OF ST. LOUIS, 351 U.S. 953. 

LUPO V. NORFOLK & WESTERN R. CO., 352 U.S. 891.    COLLINS V.
ATLANTIC COAST LINE R. CO., 352 U.S. 942. 

BENNETT V. SOUTHERN R. CO., 353 U.S. 958. 

KELLY V. PENNSYLVANIA R. CO., 355 U.S. 892. 

DESSI V. PENNSYLVANIA R. CO., 356 U.S. 967. 

BAUM V. BALTIMORE & OHIO R. CO., 358 U.S. 881. 

B. WHERE LOWER COURT SUSTAINED A JURY VERDICT FOR THE EMPLOYER: 

JONES V. ILLINOIS TERMINAL R. CO., 347 U.S. 956. 

CONSER V. ATCHISON, TOPEKA & SANTA FE R. CO., 348 U.S. 828. 
METRAKOS V. CLEVELAND UNION TERMINALS CO., 348 U.S. 872. 

KANE V. CHICAGO, BURLINGTON & QUINCY R. CORP., 348 U.S. 943. 

DAULTON V. SOUTHERN PACIFIC CO., 352 U.S. 1005. 

BURCH V. READING CO., 353 U.S. 965. 

BRINKLEY V. PENNSYLVANIA R. CO., 358 U.S. 865. 

MASTERSON V. NEW YORK CENTRAL R. CO., POST, P. 832. 

C. WHERE LOWER COURT REVERSED A JURY VERDICT FOR THE EMPLOYEE AND
DIRECTED A NEW TRIAL: 

BANNING V. DETROIT, TOLEDO & IRONTON R. CO., 338 U.S. 815. 

DIXON V. ATLANTIC COAST LINE R. CO., 342 U.S. 830. 

THOMAS V. CHESAPEAKE & OHIO R. CO., 344 U.S. 921. 

MILOM V. NEW YORK CENTRAL R. CO., 355 U.S. 953. 

ANDERSON V. ATLANTIC COAST LINE R. CO., POST, P. 841. 

D. WHERE LOWER COURT SUSTAINED A JURY VERDICT FOR THE EMPLOYEE OR
HELD THAT THE EMPLOYEE'S CASE SHOULD HAVE GONE TO THE JURY: 

ATLANTIC COAST LINE R. CO. V. HASELDEN, 338 U.S. 825. 

ATLANTIC COAST LINE R. CO. V. HILL, 340 U.S. 814. 

NEW YORK, NEW HAVEN & HARTFORD R. CO. V. KORTE, 342 U.S. 868. 

ATCHISON, TOPEKA & SANTA FE R. CO. V. WHITE, 343 U.S. 915. 

PENNSYLVANIA R. CO. V. DONNELLY, 344 U.S. 855. 

DENVER & RIO GRANDE WESTERN R. CO. V. MCGOWAN, 344 U.S. 918. 

TERMINAL RAILROAD ASSN. OF ST. LOUIS V. BARNETT, 345 U.S. 956. 

SOUTHERN PACIFIC CO. V. MILLER, 346 U.S. 909. 

CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC R. CO. V. WOODROW, 347 U.S.
935. 

FORT WORTH & DENVER R. CO. V. PRINE, 348 U.S. 826. 

CHICAGO, BURLINGTON & QUINCY R. CO. V. BONNIER, 348 U.S. 830. 

CHICAGO & NORTH WESTERN R. CO. V. MARGEVICH, 348 U.S. 861. 

LOUISIANA & ARKANSAS R. CO. V. JOHNSON, 348 U.S. 875. 

CHATTANOOGA STATION CO. V. MASSEY, 348 U.S. 896. 

CHICAGO, ROCK ISLAND & PACIFIC R. CO. V. KIFER, 348 U.S. 917. 

ELGIN, JOLIET & EASTERN R. CO. V. CROWLEY ET AL., 348 U.S. 927. 

CHICAGO, ROCK ISLAND & PACIFIC R. CO. V. WRIGHT, 349 U.S. 905. 

ATLANTIC COAST LINE R. CO. V. CHANCEY, 349 U.S. 916. 

GREAT NORTHERN R. CO. V. HALLADA, 350 U.S. 874. 

NEW YORK CENTRAL R. CO. V. RUDDY, 350 U.S. 884. 

NEW YORK, NEW HAVEN & HARTFORD R. CO. V. CERESTE, 351 U.S. 951. 

LOUISIANA & ARKANSAS R. CO. V. MOORE, 351 U.S. 952. 

TEXAS & PACIFIC R. CO. V. BUCKLES ET AL., 351 U.S. 984. 

KANSAS CITY SOUTHERN R. CO. V. JUSTIS, 352 U.S. 833. 

CHICAGO GREAT WESTERN R. CO. V. SCOVEL, 352 U.S. 835. 

NEW YORK, CHICAGO & ST. LOUIS R. CO. V. MASIGLOWA, 352 U.S. 1003. 

ILLINOIS CENTRAL R. CO. V. BOWMAN, 355 U.S. 837. 

ELGIN, JOLIET & EASTERN R. CO. V. GIBSON, 355 U.S. 897. 

MARTIN V. TINDELL, 355 U.S. 959. 

KANSAS CITY SOUTHERN R. CO. V. THOMAS, 356 U.S. 959. 

MISSOURI-KANSAS-TEXAS R. CO. V. BUSH, 358 U.S. 827. 

WABASH R. CO. V. WEHRLI, 358 U.S. 932. 

BUTLER ET AL. V. WATTS, 359 U.S. 926. 

PENNSYLVANIA R. CO. V. BYRNE, 359 U.S. 960. 

ILLINOIS CENTRAL R. CO. V. ANDRE, POST, P. 820. 

E. WHERE LOWER COURT SET ASIDE A JURY VERDICT FOR THE EMPLOYER
BECAUSE OF ERRONEOUS INSTRUCTIONS AND GRANTED A NEW TRIAL: 

WABASH R. CO. V. BYLER, 344 U.S. 826. 

DELAWARE, LACKAWANNA & WESTERN R. CO. V. SIEGRIST, 360 U.S. 917. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITTAKER JOINS, DISSENTING. 

THE OPENING OF A NEW TERM THAT CONFRONTS THE COURT WITH THE USUAL
VOLUME OF IMPORTANT AND EXACTING BUSINESS IMPELS ME TO REITERATE THE
VIEW THAT CASES INVOLVING ONLY FACTUAL ISSUES AND WHICH ARE OF NO
GENERAL IMPORTANCE HAVE NO LEGITIMATE DEMANDS UPON OUR ENERGIES,
ALREADY TAXED TO THE UTMOST.  SEE ROGERS V. MISSOURI PACIFIC R. CO.,
352 U.S. 500, 524, 559 (DISSENTING OPINIONS).  THE EXTREME CHARACTER OF
THE ADJUDICATION WHICH HAS BEEN MADE IN THIS CASE ALSO DESERVES
SOMETHING MORE THAN MERELY NOTING MY DISSENT ON THE MERITS, FOR I DO
NOT THINK THAT THE REVERSAL OF THIS JUDGMENT IS TO BE JUSTIFIED EVEN
UNDER THE PHILOSOPHY OF ROGERS. 

PETITIONER WAS INJURED WHILE ENGAGED, AS A MEMBER OF A "WRECK TRAIN
CREW," IN RETRACKING TWO DERAILED BOXCARS ON THE LINE OF ANOTHER
RAILROAD DURING THE EARLY MORNING OF A "SLEETY, WET AND SLOPPY" DAY. 
THE OPERATION INVOLVED THE USE ON EACH CAR OF A DERRICK AND FOUR
OUTRIGGERS.  EACH OUTRIGGER WAS SUPPORTED FROM BENEATH BY WOODEN
BLOCKS.  THE FIRST DERAILED CAR WAS SUCCESSFULLY RETRACKED.  THE
EQUIPMENT THEN HAD TO BE MOVED FOR A SIMILAR OPERATION ON THE SECOND
CAR.  IN THIS PROCESS PETITIONER WRENCHED HIS BACK WHILE ATTEMPTING TO
REMOVE ONE OF THE WOODEN BLOCKS WHICH HAD BECOME EMBEDDED IN MUD. 
BEING UNABLE TO BRACE HIS RIGHT FOOT ON THE NARROW SURFACE OF THE
GROUND BETWEEN THE BLOCK AND ONE OF THE RAILROAD CROSSTIES, PETITIONER
PLACED THAT FOOT ON THE TIE ITSELF.  IN ANSWER TO INTERROGATORIES THE
JURY FOUND THAT RESPONDENT HAD BEEN NEGLIGENT IN THAT "THE TIE OF THE
TRACK PETITIONER WAS REQUIRED TO WALK WAS ELEVATED A SUBSTANTIAL
DISTANCE ABOVE THE GROUND LEVEL AND WAS COVERED WITH GREASE OR OIL,
THEREBY AFFORDING UNSTABLE FOOTING."  A VERDICT IN THE SUM OF $25,000
WAS RETURNED, WHICH ON REVIEW WAS SET ASIDE BY THE OHIO SUPREME COURT. 

THE COURT DOES NOT REACH THE QUESTION AS TO THE APPLICABILITY OF THE
OHIO RULE THAT THIS SPECIFICATION OF NEGLIGENCE EXCLUDED APPELLATE
CONSIDERATION OF ANY OTHERS ASSERTED BY PETITIONER.  I CAN HARDLY
BELIEVE THAT THE COURT QUARRELS WITH THE STATE COURT'S RULING THAT AS A
MATTER OF LAW THE "POSITION OF THE CROSSTIE, SLIGHTLY ELEVATED ABOVE
THE ROADBED" COULD NOT SUPPORT THE JURY'S FINDING OF NEGLIGENCE BECAUSE
SUCH STATE OF AFFAIRS WAS A COMMON AND NOTORIOUS ONE.  HENCE
JUSTIFICATION FOR THE OVERTURNING OF THIS JUDGMENT MUST REST UPON WHAT
THE RECORD SHOWS AS TO THE PRESENCE OF GREASE ON THE CROSSTIE AND AS TO
THE RESPONDENT'S CULPABILITY FOR THAT ALLEGED CONDITION. 

UNLESS LIABILITY IN FELA CASES MAY BE PREDICATED UPON MERE
CONJECTURE, THIS RECORD FOR ME IS MANIFESTLY DEFICIENT.  THE ONLY
EVIDENCE THAT THERE WAS GREASE ON THE CROSSTIE WAS PETITIONER'S
STATEMENT ON CROSS-EXAMINATION THAT HE FOUND SOME GREASE ON THE SOLE OF
THE SHOE OF HIS RIGHT FOOT, AND THE TESTIMONY OF A SECTION FOREMAN OF
THE OTHER RAILROAD THAT GREASE WAS USED ON THAT RAILROAD'S SWITCHES,
WHICH WERE CUSTOMARILY LUBRICATED AT LEAST TWICE A WEEK.  PETITIONER
HAD NOT MENTIONED ON DIRECT EXAMINATION, IN HIS PRE-TRIAL DEPOSITION,
OR IN A WRITTEN ACCOUNT OF THE ACCIDENT MADE SHORTLY AFTER IT OCCURRED,
THAT HE HAD ENCOUNTERED GREASE AT ANY STAGE OF THE OPERATION, AND EVEN
ON CROSS-EXAMINATION DID NOT CLAIM THAT HE HAD SEEN GREASE ANYWHERE IN
THE VICINITY, STILL LESS ON THE PARTICULAR CROSSTIE WHERE HIS FOOT HAD
RESTED.  WITH RESPECT TO THE FOREMAN'S TESTIMONY, THERE IS NO EVIDENCE
AT ALL IN THE RECORD BEFORE US AS TO THE POSITION OF ANY OF THE
SWITCHES IN RELATION TO THE CROSSTIE IN QUESTION - WHETHER ANY OF THEM
WERE ADJACENT TO IT OR FAR REMOVED. 

BUT EVEN IF THIS EVIDENCE BE CONSIDERED AS JUSTIFYING THE JURY'S
CONCLUSION THAT THERE WAS GREASE ON THIS PARTICULAR CROSSTIE, THERE
WAS, IN THE WORDS OF THE OHIO COURT, NO EVIDENCE WHATEVER THAT
RESPONDENT "PLACED IT THERE, KNEW ABOUT IT, OR, IN THE EXERCISE OF
ORDINARY CARE, SHOULD HAVE KNOWN ABOUT IT."  EVIDENCE AS TO HOW LONG
THE ALLEGED GREASY CONDITION OF THIS CROSSTIE HAD EXISTED WAS WHOLLY
LACKING.  THE TIE ON THE DAY IN QUESTION WAS COVERED WITH MUD.  AND THE
UNTOWARD ABOUT THE CONDITION OF THE AREA WHEN HE INSPECTED IT THE NEXT
MORNING.  HOW IN THESE CIRCUMSTANCES IT COULD "WITH REASON" BE SAID
THAT THE RESPONDENT FAILED IN SOME DUTY OF INSPECTION IS BEYOND ME. 

I CANNOT UNDERSTAND HOW ON THIS RECORD EVEN THE "SCINTILLA" RULE OF
ROGERS AND ITS PROGENY, SEE DISSENTING OPINION IN SINKLER V. MISSOURI
PACIFIC R. CO., 356 U.S. 326, 332, CAN BE THOUGHT TO JUSTIFY THE
OVERTURNING OF THIS JUDGMENT.  I FEAR THAT THIS DECISION CONFIRMS MY
GROWING SUSPICION THAT THE REAL BUT UNARTICULATED MEANING OF ROGERS IS
THAT IN FELA CASES ANYTHING THAT A JURY SAYS GOES, WITH THE CONSEQUENCE
THAT ALL MEANINGFUL JUDICIAL SUPERVISION OVER JURY VERDICTS IN SUCH
CASES HAS BEEN PUT AT AN END.  SEE SEPARATE MEMORANDUM IN GIBSON V.
THOMPSON, 355 U.S. 18, 19.  IF SO, I THINK THE TIME HAS COME WHEN THE
COURT SHOULD FRANKLY SAY SO.  IF NOT, THEN THE COURT SHOULD AT LEAST
GIVE EXPRESSION TO THE STANDARDS BY WHICH THE LOWER COURTS ARE TO BE
GUIDED IN THESE CASES.  CONTINUANCE OF THE PRESENT UNSATISFACTORY STATE
OF AFFAIRS CAN ONLY LEAD TO MUCH WASTE MOTION ON THE PART OF LOWER
COURTS AND DEFENSE LAWYERS. 

I WOULD AFFIRM. 
..END :


















CONNER V. BUTLER 361 U.S. 29 


NO. 328.  DECIDED OCTOBER 19, 1959.  - REPORTED BELOW:  109 SO. 2D 183. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
PROOFS WERE SUFFICIENT TO SUBMIT TO THE JURY THE QUESTION WHETHER
EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING PETITIONER'S INJURY. 
THEREFORE, CERTIORARI IS GRANTED; THE JUDGMENT IS REVERSED; AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS. 

CONNER V. BUTLER ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF
FLORIDA, THIRD DISTRICT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, IS REVERSED AND
THE CASE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  WE HOLD THAT THE PROOFS WERE SUFFICIENT TO SUBMIT TO THE JURY
THE QUESTION WHETHER EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING THE
PETITIONER'S INJURY.  ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500. 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI IS IMPROVIDENTLY GRANTED. 
..END :
























KIRSHBAUM V. CITY OF LOS ANGELES 361 U.S. 30 


NO. 155.  DECIDED OCTOBER 19, 1959* - APPEALS DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  51 CAL. 2D 423, 333 P.2D 745; 51 CAL. 2D 857,
337 P.2D 825. 

*TOGETHER WITH NO. 279, KIRSHBAUM V. CITY OF LOS ANGELES ET AL., AND
NO. 291, RUBEN V. CITY OF LOS ANGELES ET AL., ALSO ON APPEALS FROM THE
SAME COURT. 


KIRSHBAUM ET AL. V. CITY OF LOS ANGELES ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION OF LOUIS KIRSHBAUM FOR LEAVE TO INTERVENE AS APPELLANT IN
NO. 291 IS DENIED.  THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEALS
ARE DISMISSED.  TREATING THE PAPERS WHEREON THE APPEALS WERE TAKEN AS
PETITIONS FOR WRITS OF CERTIORARI, CERTIORARI IS DENIED. 
..END :










MEMORIAL GARDENS ASSOCIATION, INC. V. SMITH 361 U.S. 31 


NO. 288.  DECIDED OCTOBER 19, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  16 ILL. 2D 116, 156
N.E.2D 587. 


MEMORIAL GARDENS ASSOCIATION, INC., ET AL. V. SMITH, AUDITOR OF PUBLIC
ACCOUNTS OF ILLINOIS, ET AL. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















MAGNET COVE BARIUM CORP. V. UNITED STATES 361 U.S. 32 


NO. 296.  DECIDED OCTOBER 19, 1959 - 175 F. SUPP. 473, AFFIRMED. 


MAGNET COVE BARIUM CORP. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















WAGNER V. INTERNATIONAL BROTHERHOOD OF ELECTRICIANS, LOCAL NO. 1305 361
U.S. 33 


NO. 300.  DECIDED OCTOBER 19, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  395 PA. 380, 150 A.2D 530. 


WAGNER V. INTERNATIONAL BROTHERHOOD OF ELECTRICIANS, LOCAL NO. 1305, ET
AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














EX PARTE POWELL 361 U.S. 34 


NO. 58, MISC.  DECIDED OCTOBER 19, 1959 - CERTIORARI GRANTED; JUDGMENT
VACATED AND CASE REMANDED TO THE DISTRICT COURT FOR A FULL HEARING. 


EX PARTE POWELL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR A FULL HEARING.   ELLIS V.
UNITED STATES, 356 U.S. 674. 
..END :














WABASH RAILROAD CO. V. COMMERCIAL TRANSPORT, INC. 361 U.S. 1 


NO. 68.  DECIDED OCTOBER 12, 1959 - JUDGMENT AFFIRMED - REPORTED BELOW:
173 F. SUPP. 524. 


WABASH RAILROAD CO. ET AL. V. COMMERCIAL TRANSPORT, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















FRIEDBERG, HARRISBURG WINDOW CLEANING CO. V. PENNSYLVANIA LABOR
RELATIONS BOARD 361 U.S. 2 


NO. 140.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  395 PA. 294, 148 A.2D 909. 


FRIEDBERG ET AL., DOING BUSINESS AS HARRISBURG WINDOW CLEANING CO., V.
PENNSYLVANIA LABOR RELATIONS BOARD. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE APPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















BERKSHIRE FINE SPINNING ASSOCIATES V. CITY OF NEW YORK 361 U.S. 3 


NO. 272.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  5 N.Y.2D 347, 157
N.E.2D 614. 


BERKSHIRE FINE SPINNING ASSOCIATES, INC., V. CITY OF NEW YORK ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :














BEARD V. OHIO 361 U.S. 4 


NO. 2, MISC.  DECIDED OCTOBER 12, 1959 - CERTIORARI GRANTED AND JUDGMENT
REVERSED. 


BEARD V. OHIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED.  BURNS
V. OHIO, 360 U.S. 252. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













WOMACK V. OHIO 361 U.S. 5 


NO. 12, MISC.  DECIDED OCTOBER 12, 1959 - CERTIORARI GRANTED AND
JUDGMENT REVERSED. 


WOMACK V. OHIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED AND THE JUDGMENT IS REVERSED.  BURNS
V. OHIO, 360 U.S. 252. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













NICHOLS V. MCGEE 361 U.S. 6 


NO. 16, MISC.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED - REPORTED
BELOW:  169 F. SUPP. 721. 


NICHOLS V. MCGEE, DIRECTOR, CALIFORNIA STATE DEPARTMENT OF CORRECTIONS,
ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :
















EASTERN STATES PETROLEUM CORP. V. ROGERS 361 U.S. 7 


NO. 70.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED. 


EASTERN STATES PETROLEUM CORP. V. ROGERS, ATTORNEY GENERAL, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :


















CASTELLANO V. COMMISSION OF INVESTIGATION OF THE STATE OF NEW YORK 361
U.S. 7 


NO. 72.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AS MOOT - REPORTED
BELOW:  5 N.Y.2D 1026, 6 N.Y.2D 753, 878; 158 N.E.2D 250, 159 N.E.2D
201, 160 N.E.2D 125. 


CASTELLANO V. COMMISSION OF INVESTIGATION OF THE STATE OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE SUPPLEMENT TO THE MOTION TO DISMISS IS
GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED
AS MOOT. 
..END :














BROADY V. NEW YORK 361 U.S. 8 


NO. 104.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  5 N.Y.2D 500, 158 N.E.2D 817. 


BROADY V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














KISER V. CLINCHFIELD COAL CORP. 361 U.S. 8 


NO. 106.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED FOR WANT OF A
PROPERLY PRESENTED FEDERAL QUESTION - REPORTED BELOW:  200 VA. 517, 106
S.E.2D 601. 


KISER ET AL. V. CLINCHFIELD COAL CORP. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A PROPERLY PRESENTED FEDERAL QUESTION. 
..END :
















FIRESTONE TIRE & RUBBER CO. V. BOARD OF SUPERVISORS OF LOS ANGELES
COUNTY 361 U.S. 9 


NO. 110.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  166 CAL. APP. 2D 519, 333 P.2D 378. 


FIRESTONE TIRE & RUBBER CO. V. BOARD OF SUPERVISORS OF LOS ANGELES
COUNTY ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














RYALS V. FLORIDA 361 U.S. 9 


NO. 132.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  109 SO. 2D 626. 


RYALS V. FLORIDA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND
DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MANCUSO V. COMMISSION OF INVESTIGATION OF THE STATE OF NEW YORK 361 U.S.
10 


NO. 117.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  5 N.Y.2D 1026, 6 N.Y.2D 753, 878; 158 N.E.2D
250, 159 N.E.2D 201, 160 N.E.2D 125. 


MANCUSO V. COMMISSION OF INVESTIGATION OF THE STATE OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














BIRNEL V. TOWN OF FIRCREST 361 U.S. 10 


NO. 182.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  53 WASH. 2D 830, 335
P.2D 819. 


BIRNEL V. TOWN OF FIRECREST. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















JONES MOTOR CO. V. PENNSYLVANIA PUBLIC UTILITY COMMISSION 361 U.S. 11 


NO. 120.  DECIDED OCTOBER 12, 1959 - CERTIORARI GRANTED AND JUDGMENT
REVERSED - REPORTED BELOW:  188 PA. SUPER.  449, 148 A.2D 491. 


JONES MOTOR CO., INC., V. PENNSYLVANIA PUBLIC UTILITY COMMISSION ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR COURT OF
PENNSYLVANIA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
REVERSED.  SERVICE STORAGE & TRANSFER CO. V. VIRGINIA, 359 U.S. 171. 
..END :
















LEWEY V. JONES 361 U.S. 11 


NO. 210.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


LEWEY V. JONES. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :


















KELEHER V. LASALLE COLLEGE 361 U.S. 12 


NO. 157.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  394 PA. 545, 147 A.2D 835. 


KELEHER V. LASALLE COLLEGE. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















MISSOURI PACIFIC RAILROAD CO. V. DEERING 361 U.S. 12 


NO. 253.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND CERTIORARI
DECIDED - REPORTED BELOW:  184 KAN. 283, 336 P.2D 482. 


MISSOURI PACIFIC RAILROAD CO. V. DEERING, REGISTER OF DEEDS, ET AL. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















SMITH V. UNITED STATES 361 U.S. 13 


NO. 33, MISC.  DECIDED OCTOBER 12, 1959 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


SMITH V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS VACATED AND THE
CASE REMANDED TO THE COURT OF APPEALS FOR RECONSIDERATION IN LIGHT OF
JOHNSON V. UNITED STATES, 352 U.S. 565; FARLEY V. UNITED STATES, 354
U.S. 521; AND ELLIS V. UNITED STATES, 356 U.S. 674. 
..END :













SPIVAK V. CALIFORNIA 361 U.S. 13 


NO. 59, MISC.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


SPIVAK V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















MCCAULEY V. CONSOLIDATED UNDERWRITERS 361 U.S. 14 


NO. 162, MISC.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 320 S.W.2D 60. 


MCCAULEY V. CONSOLIDATED UNDERWRITERS. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, NINTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















JORDAN V. MICHIGAN 361 U.S. 14 


NO. 201, MISC.  DECIDED OCTOBER 12, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


JORDAN V. MICHIGAN. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















GREENE V. MCELROY 360 U.S. 474 


NO. 180.  ARGUED APRIL 1, 1959.  - DECIDED JUNE 29, 1959.  - 103 U.S.
APP. D.C. 87, 254 F.2D 944, REVERSED AND CAUSE REMANDED. 


PETITIONER, AN AERONAUTICAL ENGINEER, WAS GENERAL MANAGER OF A PRIVATE
CORPORATION ENGAGED IN DEVELOPING AND PRODUCING FOR THE ARMED FORCES
GOODS INVOLVING MILITARY SECRETS, UNDER CONTRACTS REQUIRING THE
CORPORATION TO EXCLUDE FROM ITS PREMISES PERSONS NOT HAVING SECURITY
CLEARANCES.  UNDER REGULATIONS PROMULGATED BY THE SECRETARY OF DEFENSE
WITHOUT EXPLICIT AUTHORIZATION BY EITHER THE PRESIDENT OR CONGRESS, AND
AFTER ADMINISTRATIVE HEARINGS IN WHICH HE WAS DENIED ACCESS TO MUCH OF
THE INFORMATION ADVERSE TO HIM AND ANY OPPORTUNITY TO CONFRONT OR CROSS
EXAMINE WITNESSES AGAINST HIM, PETITIONER WAS DEPRIVED OF HIS SECURITY
CLEARANCE ON THE GROUNDS OF ALLEGED COMMUNISTIC ASSOCIATIONS AND
SYMPATHIES.  AS A CONSEQUENCE, THE CORPORATION DISCHARGED HIM AND HE
WAS UNABLE TO OBTAIN OTHER EMPLOYMENT AS AN AERONAUTICAL ENGINEER.  HE
SUED FOR A JUDGMENT DECLARING THAT THE REVOCATION OF HIS SECURITY
CLEARANCE WAS UNLAWFUL AND VOID AND AN ORDER RESTRAINING THE
SECRETARIES OF THE ARMED FORCES FROM ACTING PURSUANT TO IT.  HELD:  IN
THE ABSENCE OF EXPLICIT AUTHORIZATION FROM EITHER THE PRESIDENT OR
CONGRESS, THE SECRETARIES OF THE ARMED FORCES WERE NOT AUTHORIZED TO
DEPRIVE PETITIONER OF HIS JOB IN A PROCEEDING IN WHICH HE WAS NOT
AFFORDED THE SAFEGUARDS OF CONFRONTATION AND CROSS-EXAMINATION.  PP.
475-508. 

(A)  NEITHER EXECUTIVE ORDER NO. 10290 NOR EXECUTIVE ORDER NO. 10501
EMPOWERS ANY EXECUTIVE AGENCY TO FASHION SECURITY PROGRAMS WHEREBY
PERSONS ARE DEPRIVED OF THEIR CIVILIAN EMPLOYMENT AND OF THE
OPPORTUNITY OF CONTINUED ACTIVITY IN THEIR CHOSEN PROFESSIONS WITHOUT
BEING ACCORDED THE CHANCE TO CHALLENGE EFFECTIVELY THE EVIDENCE AND
TESTIMONY UPON WHICH AN ADVERSE SECURITY DETERMINATION MIGHT REST.  PP.
500-502. 

(B)  NEITHER THE NATIONAL SECURITY ACT OF 1947 NOR THE ARMED SERVICES
PROCUREMENT ACT OF 1947, EVEN WHEN READ IN CONJUNCTION WITH 18 U.S.C.
SEC. 798, MAKING IT A CRIME TO COMMUNICATE TO UNAUTHORIZED PERSONS
INFORMATION CONCERNING CRYPTOGRAPHIC OR INTELLIGENCE ACTIVITIES, AND 50
U.S.C. SEC. 783(B), MAKING IT A CRIME FOR AN OFFICER OR EMPLOYEE OF THE
UNITED STATES TO COMMUNICATE CLASSIFIED INFORMATION TO AGENTS OF
FOREIGN GOVERNMENTS OR OFFICERS AND MEMBERS OF "COMMUNIST
ORGANIZATIONS," CONSTITUTES AN AUTHORIZATION TO CREATE AN ELABORATE
CLEARANCE PROGRAM UNDER WHICH PERSONS MAY BE SERIOUSLY RESTRAINED IN
THEIR EMPLOYMENT OPPORTUNITIES THROUGH A DENIAL OF CLEARANCE WITHOUT
THE SAFEGUARDS OF CROSS-EXAMINATION AND CONFRONTATION.  PP. 502-504. 

(C)  CONGRESSIONAL RATIFICATION OF THE SECURITY CLEARANCE PROCEDURES
CANNOT BE IMPLIED FROM THE CONTINUED APPROPRIATION OF FUNDS TO FINANCE
ASPECTS OF THE PROGRAM FASHIONED BY THE DEPARTMENT OF DEFENSE.  PP. 504
505. 

(D)  IN THIS AREA OF QUESTIONABLE CONSTITUTIONALITY, THIS COURT WILL
NOT HOLD THAT A PERSON MAY BE DEPRIVED OF THE RIGHT TO FOLLOW HIS
CHOSEN PROFESSION WITHOUT FULL HEARINGS WHERE ACCUSERS MAY BE
CONFRONTED AND CROSS-EXAMINED, WHEN NEITHER THE PRESIDENT NOR CONGRESS
HAS EXPLICITLY AUTHORIZED SUCH PROCEDURE.  PP. 506-508. 

GREENE V. MCELROY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE VALIDITY OF THE GOVERNMENT'S REVOCATION OF
SECURITY CLEARANCE GRANTED TO PETITIONER, AN AERONAUTICAL ENGINEER
EMPLOYED BY A PRIVATE MANUFACTURER WHICH PRODUCED GOODS FOR THE ARMED
SERVICES.  PETITIONER WAS DISCHARGED FROM HIS EMPLOYMENT SOLELY AS A
CONSEQUENCE OF THE REVOCATION BECAUSE HIS ACCESS TO CLASSIFIED
INFORMATION WAS REQUIRED BY THE NATURE OF HIS JOB.  AFTER HIS
DISCHARGE, PETITIONER WAS UNABLE TO SECURE EMPLOYMENT AS AN
AERONAUTICAL ENGINEER AND FOR ALL PRACTICAL PURPOSES THAT FIELD OF
ENDEAVOR IS NOW CLOSED TO HIM. 

PETITIONER WAS VICE PRESIDENT AND GENERAL MANAGER OF ENGINEERING AND
RESEARCH CORPORATION (ERCO), A BUSINESS DEVOTED PRIMARILY TO DEVELOPING
AND MANUFACTURING VARIOUS MECHANICAL AND ELECTRONIC PRODUCTS.  HE BEGAN
THIS EMPLOYMENT IN 1937 SOON AFTER HIS GRADUATION FROM THE GUGGENHEIM
SCHOOL OF AERONAUTICS AND, EXCEPT FOR A BRIEF LEAVE OF ABSENCE, HE
STAYED WITH THE FIRM UNTIL HIS DISCHARGE IN 1953.  HE WAS FIRST
EMPLOYED AS A JUNIOR ENGINEER AND DRAFTSMAN.  BECAUSE OF THE EXCELLENCE
OF HIS WORK HE EVENTUALLY BECAME A CHIEF EXECUTIVE OFFICER OF THE
FIRM.  DURING HIS CAREER WITH ERCO, HE WAS CREDITED WITH THE EXPEDITED
DEVELOPMENT OF A COMPLICATED ELECTRONIC FLIGHT SIMULATOR AND WITH THE
DESIGN OF A ROCKET LAUNCHER, BOTH OF WHICH WERE PRODUCED BY ERCO AND
LONG USED BY THE NAVY. 

DURING THE POST-WORLD WAR II PERIOD, PETITIONER WAS GIVEN SECURITY
CLEARANCES ON THREE OCCASIONS.  (FN1)  THESE WERE REQUIRED BY THE
NATURE OF THE PROJECTS UNDERTAKEN BY ERCO FOR THE VARIOUS ARMED
SERVICES.  (FN2)  ON NOVEMBER 21, 1951, HOWEVER, THE ARMY-NAVY-AIR
FORCE PERSONNEL SECURITY BOARD (PSB) ADVISED ERCO THAT THE COMPANY'S
CLEARANCES FOR ACCESS TO CLASSIFIED INFORMATION WERE IN JEOPARDY
BECAUSE OF A TENTATIVE DECISION TO DENY PETITIONER ACCESS TO CLASSIFIED
DEPARTMENT OF DEFENSE INFORMATION AND TO REVOKE HIS CLEARANCE FOR
SECURITY REASONS.  (FN3)  ERCO WAS INVITED TO RESPOND TO THIS
NOTIFICATION.  THE CORPORATION, THROUGH ITS PRESIDENT, INFORMED PSB
THAT PETITIONER HAD TAKEN AN EXTENDED FURLOUGH DUE TO THE BOARD'S
ACTION.  THE ERCO EXECUTIVE ALSO STATED THAT IN HIS OPINION PETITIONER
WAS A LOYAL AND DISCREET UNITED STATES CITIZEN AND THAT HIS ABSENCE
DENIED TO THE FIRM THE SERVICES OF AN OUTSTANDING ENGINEER AND
ADMINISTRATIVE EXECUTIVE.  ON DECEMBER 11, 1951, PETITIONER WAS
INFORMED BY THE BOARD THAT IT HAD "DECIDED THAT ACCESS BY YOU TO
CONTRACT WORK AND INFORMATION (AT ERCO)  ...  WOULD BE INIMICAL TO THE
BEST INTERESTS OF THE UNITED STATES."  ACCORDINGLY, THE PSB REVOKED
PETITIONER'S CLEARANCES.  HE WAS INFORMED THAT HE COULD SEEK A HEARING
BEFORE THE INDUSTRIAL EMPLOYMENT REVIEW BOARD (IERB), AND HE TOOK THIS
COURSE.  (FN4)  PRIOR TO THE HEARING, PETITIONER RECEIVED A LETTER
INFORMING HIM THAT THE PSB ACTION WAS BASED ON INFORMATION INDICATING
THAT BETWEEN 1943 AND 1947 HE HAD ASSOCIATED WITH COMMUNISTS, VISITED
OFFICIALS OF THE RUSSIAN EMBASSY, AND ATTENDED A DINNER GIVEN BY AN
ALLEGEDLY COMMUNIST FRONT ORGANIZATION.  (FN5) 

ON JANUARY 23, 1952, PETITIONER, WITH COUNSEL, APPEARED BEFORE THE
IERB.  HE WAS QUESTIONED IN DETAIL CONCERNING HIS BACKGROUND AND THE
INFORMATION DISCLOSED IN THE IERB LETTER.  IN RESPONSE TO NUMEROUS AND
SEARCHING QUESTIONS HE EXPLAINED IN SUBSTANCE THAT SPECIFIC "SUSPECT"
PERSONS WITH WHOM HE WAS SAID TO HAVE ASSOCIATED WERE ACTUALLY FRIENDS
OF HIS EX-WIFE.  HE EXPLAINED IN SOME DETAIL THAT DURING HIS FIRST
MARRIAGE, WHICH LASTED FROM 1942 THROUGH 1947, HIS THEN WIFE HELD VIEWS
WITH WHICH HE DID NOT CONCUR AND WAS FRIENDLY WITH ASSOCIATES AND OTHER
PERSONS WITH WHOM HE HAD LITTLE IN COMMON.  HE STATED THAT THESE BASIC
DISAGREEMENTS WERE THE PRIME REASONS THAT THE MARRIAGE ENDED IN
FAILURE.  HE ATTRIBUTED TO HIS THEN WIFE HIS ATTENDANCE AT THE DINNER,
HIS MEMBERSHIP IN A BOOKSHOP ASSOCIATION WHICH PURPORTEDLY WAS A
"FRONT" ORGANIZATION, AND THE PRESENCE IN HIS HOME OF "COMMUNIST"
PUBLICATIONS.  HE DENIED CATEGORICALLY THAT HE HAD EVER BEEN A
"COMMUNIST" AND HE SPOKE AT LENGTH ABOUT HIS DISLIKE FOR "A THEORY OF
GOVERNMENT WHICH HAS FOR ITS OBJECT THE COMMON OWNERSHIP OF PROPERTY." 
LASTLY, PETITIONER EXPLAINED THAT HIS VISITS TO PERSONS IN VARIOUS
FOREIGN EMBASSIES (INCLUDING THE RUSSIAN EMBASSY) WERE MADE IN
CONNECTION WITH HIS ATTEMPTS TO SELL ERCO'S PRODUCTS TO THEIR
GOVERNMENTS.  PETITIONER'S WITNESSES, WHO INCLUDED TOP-LEVEL EXECUTIVES
OF ERCO AND A NUMBER OF MILITARY OFFICERS WHO HAD WORKED WITH
PETITIONER IN THE PAST, CORROBORATED MANY OF PETITIONER'S STATEMENTS
AND TESTIFIED IN SUBSTANCE THAT HE WAS A LOYAL AND DISCREET CITIZEN. 
THESE TOP-LEVEL EXECUTIVES OF ERCO, WHOSE RIGHT TO CLEARANCE WAS NEVER
CHALLENGED, CORROBORATED PETITIONER'S TESTIMONY CONCERNING HIS REASONS
FOR VISITING THE RUSSIAN EMBASSY. 

THE GOVERNMENT PRESENTED NO WITNESSES.  IT WAS OBVIOUS, HOWEVER, FROM
THE QUESTIONS POSED TO PETITIONER AND TO HIS WITNESSES, THAT THE BOARD
RELIED ON CONFIDENTIAL REPORTS WHICH WERE NEVER MADE AVAILABLE TO
PETITIONER.  THESE REPORTS APPARENTLY WERE COMPILATIONS OF STATEMENTS
TAKEN FROM VARIOUS PERSONS CONTACTED BY AN INVESTIGATORY AGENCY. 
PETITIONER HAD NO OPPORTUNITY TO CONFRONT AND QUESTION PERSONS WHOSE
STATEMENTS REFLECTED ADVERSELY ON HIM OR TO CONFRONT THE GOVERNMENT
INVESTIGATORS WHO TOOK THEIR STATEMENTS.  MOREOVER, IT SEEMED EVIDENT
THAT THE BOARD ITSELF HAD NEVER QUESTIONED THE INVESTIGATORS AND HAD
NEVER SEEN THOSE PERSONS WHOSE STATEMENTS WERE THE SUBJECT OF THEIR
REPORTS. 

ON JANUARY 29, 1952, THE IERB, ON THE BASIS OF THE TESTIMONY GIVEN AT
THE HEARING AND THE CONFIDENTIAL REPORTS, REVERSED THE ACTION OF THE
PSB AND INFORMED PETITIONER AND ERCO THAT PETITIONER WAS AUTHORIZED TO
WORK ON SECRET CONTRACT WORK. 

ON MARCH 27, 1953, THE SECRETARY OF DEFENSE ABOLISHED THE PSB AND
IERB AND DIRECTED THE SECRETARIES OF THE THREE ARMED SERVICES TO
ESTABLISH REGIONAL INDUSTRIAL PERSONNEL SECURITY BOARDS TO COORDINATE
THE INDUSTRIAL SECURITY PROGRAM.  (FN6)  THE SECRETARIES WERE ALSO
INSTRUCTED TO ESTABLISH UNIFORM STANDARDS, CRITERIA, AND PROCEDURES. 
(FN7)  CASES PENDING BEFORE THE PSB AND IERB WERE REFERRED TO THESE NEW
BOARDS.  (FN8)  DURING THE INTERIM PERIOD BETWEEN THE ABOLISHMENT OF
THE OLD PROGRAM AND THE IMPLEMENTATION OF THE NEW ONE, THE SECRETARIES
CONSIDERED THEMSELVES CHARGED WITH ADMINISTERING CLEARANCE ACTIVITIES
UNDER PREVIOUSLY STATED CRITERIA.  (FN9) 

ON APRIL 17, 1953, RESPONDENT ANDERSON, THE SECRETARY OF THE NAVY,
WROTE ERCO THAT HE HAD REVIEWED PETITIONER'S CASE AND HAD CONCLUDED
THAT PETITIONER'S "CONTINUED ACCESS TO NAVY CLASSIFIED SECURITY
INFORMATION WAS INCONSISTENT WITH THE BEST INTERESTS OF NATIONAL
SECURITY."  NO HEARING PRECEDED THIS NOTIFICATION.  HE REQUESTED ERCO
TO EXCLUDE PETITIONER "FROM ANY PART OF YOUR PLANTS, FACTORIES OR SITES
AT WHICH CLASSIFIED NAVY PROJECTS ARE BEING CARRIED OUT AND TO BAR HIM
ACCESS TO ALL NAVY CLASSIFIED INFORMATION."  HE ALSO ADVISED THE
CORPORATION THAT PETITIONER'S CASE WAS BEING REFERRED TO THE SECRETARY
OF DEFENSE WITH THE RECOMMENDATION THAT THE IERB'S DECISION OF JANUARY
29, 1952, BE OVERRULED.  ERCO HAD NO CHOICE BUT TO COMPLY WITH THE
REQUEST.  (FN10)  THIS LED TO PETITIONER'S DISCHARGE.  (FN11)  ERCO
INFORMED THE NAVY OF WHAT HAD OCCURRED AND REQUESTED AN OPPORTUNITY TO
DISCUSS THE MATTER IN VIEW OF PETITIONER'S IMPORTANCE TO THE FIRM. 
(FN12)  THE NAVY REPLIED THAT "AS FAR AS THE NAVY DEPARTMENT IS
CONCERNED, ANY FURTHER DISCUSSION ON THIS PROBLEM AT THIS TIME WILL
SERVE NO USEFUL PURPOSE." 

PETITIONER ASKED FOR RECONSIDERATION OF THE DECISION.  ON OCTOBER 13,
1953, THE NAVY WROTE TO HIM STATING THAT IT HAD REQUESTED THE EASTERN
INDUSTRIAL PERSONNEL SECURITY BOARD (EIPSB) TO ACCEPT JURISDICTION AND
TO ARRIVE AT A FINAL DETERMINATION CONCERNING PETITIONER'S STATUS. 
(FN13)  VARIOUS LETTERS WERE SUBSEQUENTLY EXCHANGED BETWEEN
PETITIONER'S COUNSEL AND THE EIPSB.  THESE RESULTED FINALLY IN
GENERALIZED CHARGES, QUOTED IN THE MARGIN, INCORPORATING THE
INFORMATION PREVIOUSLY DISCUSSED WITH PETITIONER AT HIS 1952 HEARING
BEFORE THE IERB.  (FN14) 

ON APRIL 28, 1954, MORE THAN ONE YEAR AFTER THE SECRETARY TOOK
ACTION, AND FOR THE TWO DAYS THEREAFTER, PETITIONER PRESENTED HIS CASE
TO THE EIPSB AND WAS CROSS-EXAMINED IN DETAIL.  THE HEARING BEGAN WITH
A STATEMENT BY THE CHAIRMAN, WHICH INCLUDED THE FOLLOWING PASSAGE: 

"THE TRANSCRIPT TO BE MADE OF THIS HEARING WILL NOT INCLUDE ALL
MATERIAL IN THE FILE OF THE CASE, IN THAT, IT WILL NOT INCLUDE REPORTS
OF INVESTIGATION CONDUCTED BY THE FEDERAL BUREAU OF INVESTIGATION OR
OTHER INVESTIGATIVE AGENCIES WHICH ARE CONFIDENTIAL.  NEITHER WILL IT
CONTAIN INFORMATION CONCERNING THE IDENTITY OF CONFIDENTIAL INFORMANTS
OR INFORMATION WHICH WILL REVEAL THE SOURCE OF CONFIDENTIAL EVIDENCE. 
THE TRANSCRIPT WILL CONTAIN ONLY THE STATEMENT OF REASONS, YOUR ANSWER
THERETO AND THE TESTIMONY ACTUALLY TAKEN AT THIS HEARING." 

PETITIONER WAS AGAIN ADVISED THAT THE REVOCATION OF HIS SECURITY
CLEARANCE WAS BASED ON INCIDENTS OCCURRING BETWEEN 1942 AND 1947,
INCLUDING HIS ASSOCIATIONS WITH ALLEGED COMMUNISTS, HIS VISITS WITH
OFFICIALS OF THE RUSSIAN EMBASSY, AND THE PRESENCE IN HIS HOUSE OF
COMMUNIST LITERATURE. 

PETITIONER, IN RESPONSE TO A QUESTION, STATED AT THE OUTSET OF THE
HEARING THAT HE WAS THEN EMPLOYED AT A SALARY OF $4,700 PER YEAR AS AN
ARCHITECTURAL DRAFTSMAN AND THAT HE HAD BEEN RECEIVING $18,000 PER YEAR
AS VICE PRESIDENT AND GENERAL MANAGER OF ERCO.  HE LATER EXPLAINED THAT
AFTER HIS DISCHARGE FROM ERCO HE HAD UNSUCCESSFULLY TRIED TO OBTAIN
EMPLOYMENT IN THE AERONAUTICS FIELD BUT HAD BEEN BARRICADED FROM IT
BECAUSE OF LACK OF CLEARANCE.  (FN15) 

PETITIONER WAS SUBJECTED TO AN INTENSE EXAMINATION SIMILAR TO THAT
WHICH HE EXPERIENCED BEFORE THE IERB IN 1952.  DURING THE COURSE OF THE
EXAMINATION, THE BOARD INJECTED NEW SUBJECTS OF INQUIRY AND MADE IT
EVIDENT THAT IT WAS RELYING ON VARIOUS INVESTIGATORY REPORTS AND
STATEMENTS OF CONFIDENTIAL INFORMANTS WHICH WERE NOT MADE AVAILABLE TO
PETITIONER.  (FN16)  PETITIONER REITERATED IN GREAT DETAIL THE
EXPLANATIONS PREVIOUSLY GIVEN BEFORE THE IERB.  HE WAS SUBJECTED TO
INTENSE CROSS-EXAMINATION, HOWEVER, CONCERNING REPORTS THAT HE HAD
AGREED WITH THE VIEWS HELD BY HIS EX-WIFE. 

PETITIONER AGAIN PRESENTED A NUMBER OF WITNESSES WHO TESTIFIED THAT
HE WAS LOYAL, THAT HE HAD SPOKEN APPROVINGLY OF THE UNITED STATES AND
ITS ECONOMIC SYSTEM, THAT HE WAS A VALUABLE ENGINEER, AND THAT HE HAD
MADE VALUABLE AND SIGNIFICANT CONTRIBUTIONS TO THIS COUNTRY'S WAR
EFFORTS DURING WORLD WAR II AND THE KOREAN WAR. 

SOON AFTER THE CONCLUSION OF THE HEARING, THE EIPSB NOTIFIED
PETITIONER THAT IT HAD AFFIRMED THE SECRETARY'S ACTION AND THAT IT HAD
DECIDED THAT THE GRANTING OF CLEARANCE TO PETITIONER FOR ACCESS TO
CLASSIFIED INFORMATION WAS "NOT CLEARLY CONSISTENT WITH THE INTERESTS
OF NATIONAL SECURITY."  PETITIONER REQUESTED THAT HE BE FURNISHED WITH
A DETAILED STATEMENT OF FINDINGS SUPPORTING THE BOARD'S DECISION.  HE
WAS INFORMED, HOWEVER, THAT SECURITY CONSIDERATIONS PROHIBITED SUCH
DISCLOSURE.  (FN17)  ON SEPTEMBER 16, 1955, PETITIONER REQUESTED REVIEW
BY THE INDUSTRIAL PERSONNEL SECURITY REVIEW BOARD.  (FN18)  ON MARCH
12, 1956, ALMOST THREE YEARS AFTER THE SECRETARY'S ACTION AND NEARLY
ONE YEAR AFTER THE SECOND HEARING, HE RECEIVED A LETTER FROM THE
DIRECTOR OF THE OFFICE OF INDUSTRIAL PERSONNEL SECURITY REVIEW
INFORMING HIM THAT THE EIPSB HAD FOUND THAT FROM 1942-1947 PETITIONER
ASSOCIATED CLOSELY WITH HIS THEN WIFE AND HER FRIENDS, KNOWING THAT
THEY WERE ACTIVE IN BEHALF OF AND SYMPATHIZED WITH THE COMMUNIST PARTY,
THAT DURING PART OF THIS PERIOD PETITIONER MAINTAINED A SYMPATHETIC
ASSOCIATION WITH A NUMBER OF OFFICIALS OF THE RUSSIAN EMBASSY, THAT
DURING THIS PERIOD PETITIONER'S POLITICAL VIEWS WERE SIMILAR TO THOSE
OF HIS THEN WIFE, THAT PETITIONER HAD BEEN A MEMBER OF A SUSPECT
BOOKSHOP ASSOCIATION, HAD INVESTED MONEY IN A SUSPECT RADIO STATION,
HAD ATTENDED A SUSPECT DINNER, AND HAD, ON OCCASION, COMMUNIST
PUBLICATIONS IN HIS HOME, AND THAT PETITIONER'S CREDIBILITY AS A
WITNESS IN THE PROCEEDINGS WAS DOUBTFUL.  THE LETTER ALSO STATED THAT
THE DOUBTS CONCERNING PETITIONER'S CREDIBILITY AFFECTED THE BOARD'S
EVALUATION OF HIS TRUSTWORTHINESS AND THAT ONLY TRUSTWORTHY PERSONS
COULD BE AFFORDED ACCESS TO CLASSIFIED INFORMATION.  (FN19)  THE EIPSB
DETERMINATION WAS AFFIRMED. 

AFTER THE EIPSB DECISION IN 1954, PETITIONER FILED A COMPLAINT IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ASKING FOR A
DECLARATION THAT THE REVOCATION WAS UNLAWFUL AND VOID AND FOR AN ORDER
RESTRAINING RESPONDENTS FROM ACTING PURSUANT TO IT.  (FN20)  HE ALSO
ASKED FOR AN ORDER REQUIRING RESPONDENTS TO ADVISE ERCO THAT THE
CLEARANCE REVOCATION WAS VOID.  FOLLOWING THE AFFIRMANCE OF THE EIPSB
ORDER BY THE INDUSTRIAL PERSONNEL REVIEW BOARD, PETITIONER MOVED FOR
SUMMARY JUDGMENT IN THE DISTRICT COURT.  THE GOVERNMENT CROSS-FILED FOR
DISMISSAL OF THE COMPLAINT OR SUMMARY JUDGMENT.  THE DISTRICT COURT
GRANTED THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT, 150 F. SUPP. 958,
AND THE COURT OF APPEALS AFFIRMED THAT DISPOSITION, 103 U.S. APP. D.C.
87, 254 F.2D 944.    THE COURT OF APPEALS RECOGNIZED THAT PETITIONER
HAD SUFFERED SUBSTANTIAL HARM FROM THE CLEARANCE REVOCATION.  (FN21)
BUT IN THAT COURT'S VIEW, PETITIONER'S SUIT PRESENTED NO "JUSTICIABLE
CONTROVERSY" - NO CONTROVERSY WHICH THE COURTS COULD FINALLY AND
EFFECTIVELY DECIDE.  THIS CONCLUSION FOLLOWED FROM THE COURT OF
APPEALS' REASONING THAT THE EXECUTIVE DEPARTMENT ALONE IS COMPETENT TO
EVALUATE THE COMPETING CONSIDERATIONS WHICH EXIST IN DETERMINING THE
PERSONS WHO ARE TO BE AFFORDED SECURITY CLEARANCES.  THE COURT ALSO
REJECTED PETITIONER'S CLAIM THAT HE WAS DEPRIVED OF HIS LIVELIHOOD
WITHOUT THE TRADITIONAL SAFEGUARDS REQUIRED BY "DUE PROCESS OF LAW"
SUCH AS CONFRONTATION OF HIS ACCUSERS AND ACCESS TO CONFIDENTIAL
REPORTS USED TO DETERMINE HIS FITNESS.  CENTRAL TO THIS DETERMINATION
WAS THE COURT'S WILLINGNESS TO ORDER THE GOVERNMENT TO CHOOSE BETWEEN
DISCLOSING THE IDENTITIES OF INFORMANTS OR GIVING PETITIONER
CLEARANCE. 

PETITIONER CONTENDS THAT THE ACTION OF THE DEPARTMENT OF DEFENSE IN
BARRING HIM FROM ACCESS TO CLASSIFIED INFORMATION ON THE BASIS OF
STATEMENTS OF CONFIDENTIAL INFORMANTS MADE TO INVESTIGATORS WAS NOT
AUTHORIZED BY EITHER CONGRESS OR THE PRESIDENT AND HAS DENIED HIM
"LIBERTY" AND "PROPERTY" WITHOUT "DUE PROCESS OF LAW" IN CONTRAVENTION
OF THE FIFTH AMENDMENT.  THE ALLEGED PROPERTY IS PETITIONER'S
EMPLOYMENT; THE ALLEGED LIBERTY IS PETITIONER'S FREEDOM TO PRACTICE HIS
CHOSEN PROFESSION.  RESPONDENTS ADMIT, AS THEY MUST, THAT THE
REVOCATION OF SECURITY CLEARANCE CAUSED PETITIONER TO LOSE HIS JOB WITH
ERCO AND HAS SERIOUSLY AFFECTED, IF NOT DESTROYED, HIS ABILITY TO
OBTAIN EMPLOYMENT IN THE AERONAUTICS FIELD.  ALTHOUGH THE RIGHT TO HOLD
SPECIFIC PRIVATE EMPLOYMENT AND TO FOLLOW A CHOSEN PROFESSION FREE FROM
UNREASONABLE GOVERNMENTAL INTERFERENCE COMES WITHIN THE "LIBERTY" AND
"PROPERTY" CONCEPTS OF THE FIFTH AMENDMENT, DENT V. WEST VIRGINIA, 129
U.S. 114; SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232; PETERS V.
HOBBY, 349 U.S. 331, 352 (CONCURRING OPINION); CF. SLOCHOWER V. BOARD
OF EDUCATION, 350 U.S. 551; TRUAX V. RAICH, 239 U.S. 33, 41; ALLGEYER
V. LOUISIANA, 165 U.S. 578, 589-590; POWELL V. PENNSYLVANIA, 127 U.S.
678, 684, RESPONDENTS CONTEND THAT THE ADMITTED INTERFERENCES WHICH
HAVE OCCURRED ARE INDIRECT BY-PRODUCTS OF NECESSARY GOVERNMENTAL ACTION
TO PROTECT THE INTEGRITY OF SECRET INFORMATION AND HENCE ARE NOT
UNREASONABLE AND DO NOT CONSTITUTE DEPRIVATIONS WITHIN THE MEANING OF
THE AMENDMENT.  ALTERNATIVELY, RESPONDENTS URGE THAT EVEN IF PETITIONER
HAS BEEN RESTRAINED IN THE ENJOYMENT OF CONSTITUTIONALLY PROTECTED
RIGHTS, HE WAS ACCORDED DUE PROCESS OF LAW IN THAT HE WAS PERMITTED TO
UTILIZE THOSE PROCEDURAL SAFEGUARDS CONSONANT WITH AN EFFECTIVE
CLEARANCE PROGRAM, IN THE ADMINISTRATION OF WHICH THE IDENTITY OF
INFORMANTS AND THEIR STATEMENTS ARE KEPT SECRET TO INSURE AN UNIMPAIRED
FLOW TO THE GOVERNMENT OF INFORMATION CONCERNING SUBVERSIVE CONDUCT. 
BUT IN VIEW OF OUR CONCLUSION THAT THIS CASE SHOULD BE DECIDED ON THE
NARROWER GROUND OF "AUTHORIZATION," WE FIND THAT WE NEED NOT DETERMINE
THE ANSWERS TO THESE QUESTIONS.  (FN22) 

THE ISSUE, AS WE SEE IT, IS WHETHER THE DEPARTMENT OF DEFENSE HAS
BEEN AUTHORIZED TO CREATE AN INDUSTRIAL SECURITY CLEARANCE PROGRAM
UNDER WHICH AFFECTED PERSONS MAY LOSE THEIR JOBS AND MAY BE RESTRAINED
IN FOLLOWING THEIR CHOSEN PROFESSIONS ON THE BASIS OF FACT
DETERMINATIONS CONCERNING THEIR FITNESS FOR CLEARANCE MADE IN
PROCEEDINGS IN WHICH THEY ARE DENIED THE TRADITIONAL PROCEDURAL
SAFEGUARDS OF CONFRONTATION AND CROSS-EXAMINATION. 

PRIOR TO WORLD WAR II, ONLY SPORADIC EFFORTS WERE MADE TO CONTROL THE
CLEARANCE OF PERSONS WHO WORKED IN PRIVATE ESTABLISHMENTS WHICH
MANUFACTURED MATERIALS FOR NATIONAL DEFENSE.  REPORT OF THE COMMISSION
ON GOVERNMENT SECURITY, 1957, S. DOC. NO. 64, 85TH CONG., 1ST SESS.
236.  DURING WORLD WAR II THE WAR DEPARTMENT INSTITUTED A FORMALIZED
PROGRAM TO OBTAIN THE DISCHARGE FROM WAR PLANTS OF PERSONS ENGAGED IN
SABOTAGE, ESPIONAGE, AND WILLFUL ACTIVITY DESIGNED TO DISRUPT THE
NATIONAL DEFENSE PROGRAM.  ID., AT 237.  IN 1946, THE WAR DEPARTMENT
BEGAN TO REQUIRE CONTRACTORS, BEFORE BEING GIVEN ACCESS TO CLASSIFIED
INFORMATION, TO SIGN SECRECY AGREEMENTS WHICH REQUIRED CONSENT BEFORE
THEIR EMPLOYEES WERE PERMITTED ACCESS TO TOP SECRET OR SECRET
INFORMATION.  ID., AT 238.  AT THE OUTSET, EACH ARMED SERVICE
ADMINISTERED ITS OWN INDUSTRIAL CLEARANCE PROGRAM.  ID., AT 239. 
LATER, THE PSB AND IERB WERE ESTABLISHED BY THE DEPARTMENT OF DEFENSE
AND THE SECRETARIES OF THE ARMED SERVICES TO ADMINISTER A MORE
CENTRALIZED PROGRAM.  IBID.  CONFUSION EXISTED CONCERNING THE CRITERIA
AND PROCEDURES TO BE EMPLOYED BY THESE BOARDS.  IBID.  EVENTUALLY,
GENERALIZED PROCEDURES WERE ESTABLISHED WITH THE APPROVAL OF THE
SECRETARIES WHICH PROVIDED IN PART THAT BEFORE THE IERB "THE HEARING
WILL BE CONDUCTED IN SUCH MANNER AS TO PROTECT FROM DISCLOSURE
INFORMATION AFFECTING THE NATIONAL SECURITY OR TENDING TO COMPROMISE
INVESTIGATIVE SOURCES OR METHODS  ...  ."  SEE "PROCEDURES GOVERNING
APPEALS TO THE INDUSTRIAL EMPLOYMENT REVIEW BOARD, DATED 7 NOVEMBER
1949," NOTE 4, SUPRA, SEC. 4(C).  AFTER ABOLITION OF THESE BOARDS IN
1953, AND THE ESTABLISHMENT OF THE IPSB, VARIOUS NEW SETS OF PROCEDURES
WERE PROMULGATED WHICH LIKEWISE PROVIDED FOR THE NON-DISCLOSURE OF
INFORMATION "TENDING TO COMPROMISE INVESTIGATIVE SOURCES OR METHODS OR
THE IDENTITY OF CONFIDENTIAL INFORMANTS."  (FN23) 

ALL OF THESE PROGRAMS AND PROCEDURES WERE ESTABLISHED BY DIRECTIVES
ISSUED BY THE SECRETARY OF DEFENSE OR THE SECRETARIES OF THE ARMY,
NAVY, AND AIR FORCE.  NONE WAS THE CREATURE OF STATUTE OR OF AN
EXECUTIVE ORDER ISSUED BY THE PRESIDENT.  (FN24) 

RESPONDENTS MAINTAIN THAT CONGRESSIONAL AUTHORIZATION TO THE
PRESIDENT TO FASHION A PROGRAM WHICH DENIES SECURITY CLEARANCE TO
PERSONS ON THE BASIS OF CONFIDENTIAL INFORMATION WHICH THE INDIVIDUALS
HAVE NO OPPORTUNITY TO CONFRONT AND TEST IS UNNECESSARY BECAUSE THE
PRESIDENT HAS INHERENT AUTHORITY TO MAINTAIN MILITARY SECRETS
INVIOLATE.  AND RESPONDENTS ARGUE THAT IF A STATUTORY GRANT OF POWER IS
NECESSARY, SUCH A GRANT CAN READILY BE INFERRED "AS A NECESSARILY
IMPLICIT AUTHORITY FROM THE GENERALIZED PROVISIONS" OF LEGISLATION
DEALING WITH THE ARMED SERVICES.  BUT THE QUESTION WHICH MUST BE
DECIDED IN THIS CASE IS NOT WHETHER THE PRESIDENT HAS INHERENT POWER TO
ACT OR WHETHER CONGRESS HAS GRANTED HIM SUCH A POWER; RATHER, IT IS
WHETHER EITHER THE PRESIDENT OR CONGRESS EXERCISED SUCH A POWER AND
DELEGATED TO THE DEPARTMENT OF DEFENSE THE AUTHORITY TO FASHION SUCH A
PROGRAM. 

CERTAIN PRINCIPLES HAVE REMAINED RELATIVELY IMMUTABLE IN OUR
JURISPRUDENCE.  ONE OF THESE IS THAT WHERE GOVERNMENTAL ACTION
SERIOUSLY INJURES AN INDIVIDUAL, AND THE REASONABLENESS OF THE ACTION
DEPENDS ON FACT FINDINGS, THE EVIDENCE USED TO PROVE THE GOVERNMENT'S
CASE MUST BE DISCLOSED TO THE INDIVIDUAL SO THAT HE HAS AN OPPORTUNITY
TO SHOW THAT IT IS UNTRUE.  WHILE THIS IS IMPORTANT IN THE CASE OF
DOCUMENTARY EVIDENCE, IT IS EVEN MORE IMPORTANT WHERE THE EVIDENCE
CONSISTS OF THE TESTIMONY OF INDIVIDUALS WHOSE MEMORY MIGHT BE FAULTY
OR WHO, IN FACT, MIGHT BE PERJURERS OR PERSONS MOTIVATED BY MALICE,
VINDICTIVENESS, INTOLERANCE, PREJUDICE, OR JEALOUSY.  WE HAVE
FORMALIZED THESE PROTECTIONS IN THE REQUIREMENTS OF CONFRONTATION AND
CROSS-EXAMINATION.  THEY HAVE ANCIENT ROOTS.  (FN25)  THEY FIND
EXPRESSION IN THE SIXTH AMENDMENT WHICH PROVIDES THAT IN ALL CRIMINAL
CASES THE ACCUSED SHALL ENJOY THE RIGHT "TO BE CONFRONTED WITH THE
WITNESSES AGAINST HIM."  THIS COURT HAS BEEN ZEALOUS TO PROTECT THESE
RIGHTS FROM EROSION.  IT HAS SPOKEN OUT NOT ONLY IN CRIMINAL CASES,
E.G., MATTOX V. UNITED STATES, 156 U.S. 237, 242-244; KIRBY V. UNITED
STATES, 174 U.S. 47; MOTES V. UNITED STATES, 178 U.S. 458, 474; IN RE
OLIVER, 333 U.S. 257, 273, BUT ALSO IN ALL TYPES OF CASES WHERE
ADMINISTRATIVE AND REGULATORY ACTIONS WERE UNDER SCRUTINY.  E.G.,
SOUTHERN R. CO. V. VIRGINIA, 290 U.S. 190; OHIO BELL TELEPHONE CO. V.
PUBLIC UTILITIES COMMISSION, 301 U.S. 292; MORGAN V. UNITED STATES, 304
U.S. 1, 19; CARTER V. KUBLER, 320 U.S. 243; REILLY V. PINKUS, 338 U.S.
269.  NOR, AS IT HAS BEEN POINTED OUT, HAS CONGRESS IGNORED THESE
FUNDAMENTAL REQUIREMENTS IN ENACTING REGULATORY LEGISLATION.  JOINT
ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 168-169 (CONCURRING
OPINION). 

PROFESSOR WIGMORE, COMMENTING ON THE IMPORTANCE OF CROSS-EXAMINATION,
STATES IN HIS TREATISE, 5 WIGMORE ON EVIDENCE (3D ED. 1940) SEC. 1367: 

"FOR TWO CENTURIES PAST, THE POLICY OF THE ANGLO-AMERICAN SYSTEM OF
EVIDENCE HAS BEEN TO REGARD THE NECESSITY OF TESTING BY CROSS
EXAMINATION AS A VITAL FEATURE OF THE LAW.  THE BELIEF THAT NO
SAFEGUARD FOR TESTING THE VALUE OF HUMAN STATEMENTS IS COMPARABLE TO
THAT FURNISHED BY CROSS-EXAMINATION, AND THE CONVICTION THAT NO
STATEMENT (UNLESS BY SPECIAL EXCEPTION) SHOULD BE USED AS TESTIMONY
UNTIL IT HAS BEEN PROBED AND SUBLIMATED BY THAT TEST, HAS FOUND
INCREASING STRENGTH IN LENGTHENING EXPERIENCE." 

LITTLE NEED BE ADDED TO THIS INCISIVE SUMMARY STATEMENT EXCEPT TO
POINT OUT THAT UNDER THE PRESENT CLEARANCE PROCEDURES NOT ONLY IS THE
TESTIMONY OF ABSENT WITNESSES ALLOWED TO STAND WITHOUT THE PROBING
QUESTIONS OF THE PERSON UNDER ATTACK WHICH OFTEN UNCOVER
INCONSISTENCIES, LAPSES OF RECOLLECTION, AND BIAS, (FN26) BUT, IN
ADDITION, EVEN THE MEMBERS OF THE CLEARANCE BOARDS DO NOT SEE THE
INFORMANTS OR KNOW THEIR IDENTITIES, BUT NORMALLY RELY ON AN
INVESTIGATOR'S SUMMARY REPORT OF WHAT THE INFORMANT SAID WITHOUT EVEN
EXAMINING THE INVESTIGATOR PERSONALLY.  (FN27) 

WE MUST DETERMINE AGAINST THIS BACKGROUND, WHETHER THE PRESIDENT OR
CONGRESS HAS DELEGATED TO THE DEPARTMENT OF DEFENSE THE AUTHORITY TO BY
PASS THESE TRADITIONAL AND WELL-RECOGNIZED SAFEGUARDS IN AN INDUSTRIAL
SECURITY CLEARANCE PROGRAM WHICH CAN OPERATE TO INJURE INDIVIDUALS
SUBSTANTIALLY BY DENYING TO THEM THE OPPORTUNITY TO FOLLOW CHOSEN
PRIVATE PROFESSIONS.  RESPONDENTS CITE TWO EXECUTIVE ORDERS WHICH THEY
BELIEVE SHOW PRESIDENTIAL DELEGATION.  THE FIRST, EXEC. ORDER NO.
10290, 16 FED. REG. 9795, WAS ENTITLED "PRESCRIBING REGULATIONS
ESTABLISHING MINIMUM STANDARDS FOR THE CLASSIFICATION, TRANSMISSION,
AND HANDLING, BY DEPARTMENTS AND AGENCIES OF THE EXECUTIVE BRANCH, OF
OFFICIAL INFORMATION WHICH REQUIRES SAFEGUARDING IN THE INTEREST OF THE
SECURITY OF THE UNITED STATES."  IT PROVIDED, IN RELEVANT PART:

                      "PART V - DISSEMINATION OF CLASSIFIED
SECURITY

          INFORMATION 

"29.  GENERAL.  A. NO PERSON SHALL BE ENTITLED TO KNOWLEDGE OR
POSSESSION OF, OR ACCESS TO, CLASSIFIED SECURITY INFORMATION SOLELY BY
VIRTUE OF HIS OFFICE OR POSITION. 

"B.  CLASSIFIED SECURITY INFORMATION SHALL NOT BE DISCUSSED WITH OR
IN THE PRESENCE OF UNAUTHORIZED PERSONS, AND THE LATTER SHALL NOT BE
PERMITTED TO INSPECT OR HAVE ACCESS TO SUCH INFORMATION. 

"C.  THE HEAD OF EACH AGENCY SHALL ESTABLISH A SYSTEM FOR CONTROLLING
THE DISSEMINATION OF CLASSIFIED SECURITY INFORMATION ADEQUATE TO THE
NEEDS OF HIS AGENCY. 

"30.  LIMITATIONS ON DISSEMINATION.  - A. WITHIN THE EXECUTIVE
BRANCH.  THE DISSEMINATION OF CLASSIFIED SECURITY INFORMATION SHALL BE
LIMITED TO PERSONS WHOSE OFFICIAL DUTIES REQUIRE KNOWLEDGE OF SUCH
INFORMATION.  SPECIAL MEASURES SHALL BE EMPLOYED TO LIMIT THE
DISSEMINATION OF 'TOP SECRET' SECURITY INFORMATION TO THE ABSOLUTE
MINIMUM.  ONLY THAT PORTION OF 'TOP SECRET' SECURITY INFORMATION
NECESSARY TO THE PROPER PLANNING AND APPROPRIATE ACTION OF ANY
ORGANIZATIONAL UNIT OR INDIVIDUAL SHALL BE RELEASED TO SUCH UNIT OR
INDIVIDUAL. 

"B.  OUTSIDE THE EXECUTIVE BRANCH.  CLASSIFIED SECURITY INFORMATION
SHALL NOT BE DISSEMINATED OUTSIDE THE EXECUTIVE BRANCH BY ANY PERSON OR
AGENCY HAVING ACCESS THERETO OR KNOWLEDGE THEREOF EXCEPT UNDER
CONDITIONS AND THROUGH CHANNELS AUTHORIZED BY THE HEAD OF THE
DISSEMINATING AGENCY, EVEN THOUGH SUCH PERSON OR AGENCY MAY HAVE BEEN
SOLELY OR PARTLY RESPONSIBLE FOR ITS PRODUCTION." 

THE SECOND, EXEC. ORDER NO. 10501, 18 FED. REG. 7049, WHICH REVOKED
EXEC. ORDER NO. 10290, IS ENTITLED "SAFEGUARDING OFFICIAL INFORMATION
IN THE INTERESTS OF THE DEFENSE OF THE UNITED STATES" AND PROVIDES IN
RELEVANT PART: 

"SEC. 7.  ACCOUNTABILITY AND DISSEMINATION. 

     *         *         *         *         * 

"(B)  DISSEMINATION OUTSIDE THE EXECUTIVE BRANCH.  CLASSIFIED DEFENSE
INFORMATION SHALL NOT BE DISSEMINATED OUTSIDE THE EXECUTIVE BRANCH
EXCEPT UNDER CONDITIONS AND THROUGH CHANNELS AUTHORIZED BY THE HEAD OF
THE DISSEMINATING DEPARTMENT OR AGENCY, EVEN THOUGH THE PERSON OR
AGENCY TO WHICH DISSEMINATION OF SUCH INFORMATION IS PROPOSED TO BE
MADE MAY HAVE BEEN SOLELY OR PARTLY RESPONSIBLE FOR ITS PRODUCTION." 

CLEARLY, NEITHER OF THESE ORDERS EMPOWERS ANY EXECUTIVE AGENCY TO
FASHION SECURITY PROGRAMS WHEREBY PERSONS ARE DEPRIVED OF THEIR PRESENT
CIVILIAN EMPLOYMENT AND OF THE OPPORTUNITY OF CONTINUED ACTIVITY IN
THEIR CHOSEN PROFESSIONS WITHOUT BEING ACCORDED THE CHANCE TO CHALLENGE
EFFECTIVELY THE EVIDENCE AND TESTIMONY UPON WHICH AN ADVERSE SECURITY
DETERMINATION MIGHT REST.  (FN28) 

TURNING TO THE LEGISLATIVE ENACTMENTS WHICH MIGHT BE DEEMED AS
DELEGATING AUTHORITY TO THE DEPARTMENT OF DEFENSE TO FASHION PROGRAMS
UNDER WHICH PERSONS MAY BE SERIOUSLY RESTRAINED IN THEIR EMPLOYMENT
OPPORTUNITIES THROUGH A DENIAL OF CLEARANCE WITHOUT THE SAFEGUARDS OF
CROSS-EXAMINATION AND CONFRONTATION, WE NOTE THE GOVERNMENT'S OWN
ASSERTION, MADE IN ITS BRIEF, THAT "WITH PETITIONER'S CONTENTION THAT
THE INDUSTRIAL SECURITY PROGRAM IS NOT EXPLICITLY AUTHORIZED BY STATUTE
WE MAY READILY AGREE  ...  ."    THE FIRST PROFFERED STATUTE IS THE
NATIONAL SECURITY ACT OF 1947, AS AMENDED, 5 U.S.C. SEC.  171 ET SEQ.
THAT ACT CREATED THE DEPARTMENT OF DEFENSE AND GAVE TO THE SECRETARY OF
DEFENSE AND THE SECRETARIES OF THE ARMED SERVICES THE AUTHORITY TO
ADMINISTER THEIR DEPARTMENTS.  NOWHERE IN THE ACT, OR ITS AMENDMENTS,
IS THERE FOUND SPECIFIC AUTHORITY TO CREATE A CLEARANCE PROGRAM SIMILAR
TO THE ONE NOW IN EFFECT. 

ANOTHER ACT CITED BY RESPONDENTS IS THE ARMED SERVICE PROCUREMENT ACT
OF 1947, AS AMENDED.  IT PROVIDES IN 10 U.S.C. SEC. 2304 THAT: 

"(A)  PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY
THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING.  HOWEVER, THE HEAD OF
AN AGENCY MAY NEGOTIATE SUCH A PURCHASE OR CONTRACT, IF: 

     *         *         *         *         * 

"(12)  THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES WHOSE
PROCUREMENT HE DETERMINES SHOULD NOT BE PUBLICLY DISCLOSED BECAUSE OF
THEIR CHARACTER, INGREDIENTS, OR COMPONENTS." 

IT FURTHER PROVIDES IN 10 U.S.C. SEC. 2306: 

"(A)  THE COST-PLUS-A-PERCENTAGE-OF-COST SYSTEM OF CONTRACTING MAY
NOT BE USED.  SUBJECT TO THIS LIMITATION AND SUBJECT TO SUBSECTIONS (B)
(E), THE HEAD OF AN AGENCY MAY, IN NEGOTIATING CONTRACTS UNDER SECTION
2304 OF THIS TITLE, MAKE ANY KIND OF CONTRACT THAT HE CONSIDERS WILL
PROMOTE THE BEST INTERESTS OF THE UNITED STATES." 

RESPONDENTS ARGUE THAT THESE STATUTES, TOGETHER WITH 18 U.S.C. SEC.
798, WHICH MAKES IT A CRIME WILLFULLY AND KNOWINGLY TO COMMUNICATE TO
UNAUTHORIZED PERSONS INFORMATION CONCERNING CRYPTOGRAPHIC OR
INTELLIGENCE ACTIVITIES, AND 50 U.S.C. SEC. 783(B), WHICH MAKES IT A
CRIME FOR AN OFFICER OR EMPLOYEE OF THE UNITED STATES TO COMMUNICATE
CLASSIFIED INFORMATION TO AGENTS OF FOREIGN GOVERNMENTS OR OFFICERS AND
MEMBERS OF "COMMUNIST ORGANIZATIONS," REFLECT A RECOGNITION BY CONGRESS
OF THE EXISTENCE OF MILITARY SECRETS AND THE NECESSITY OF KEEPING THOSE
SECRETS INVIOLATE. 

ALTHOUGH THESE STATUTES MAKE IT APPARENT THAT CONGRESS RECOGNIZES THE
EXISTENCE OF MILITARY SECRETS, THEY HARDLY CONSTITUTE AN AUTHORIZATION
TO CREATE AN ELABORATE CLEARANCE PROGRAM WHICH EMBODIES PROCEDURES
TRADITIONALLY BELIEVED TO BE INADEQUATE TO PROTECT AFFECTED PERSONS. 
(FN29) 

LASTLY, THE GOVERNMENT URGES THAT IF WE REFUSE TO ADOPT ITS
"INFERRED" AUTHORIZATION REASONING, NEVERTHELESS, CONGRESSIONAL
RATIFICATION IS APPARENT BY THE CONTINUED APPROPRIATION OF FUNDS TO
FINANCE ASPECTS OF THE PROGRAM FASHIONED BY THE DEPARTMENT OF DEFENSE. 
RESPONDENTS REFER US TO HEARINGS BEFORE THE HOUSE COMMITTEE ON
APPROPRIATIONS ON DEPARTMENT OF DEFENSE APPROPRIATIONS FOR 1956, 84TH
CONG., 1ST SESS. 774-781.  AT THOSE HEARINGS, THE COMMITTEE WAS ASKED
TO APPROVE THE APPROPRIATION OF FUNDS TO FINANCE A PROGRAM UNDER WHICH
REIMBURSEMENT FOR LOST WAGES WOULD BE MADE TO EMPLOYEES OF GOVERNMENT
CONTRACTORS WHO WERE TEMPORARILY DENIED, BUT LATER GRANTED, SECURITY
CLEARANCE.  APPARENTLY, SUCH REIMBURSEMENTS HAD BEEN MADE PRIOR TO THAT
TIME OUT OF GENERAL APPROPRIATIONS.  ALTHOUGH A SPECIFIC APPROPRIATION
WAS EVENTUALLY MADE FOR THIS PURPOSE, IT COULD NOT CONCEIVABLY
CONSTITUTE A RATIFICATION OF THE HEARING PROCEDURES, FOR THE PROCEDURES
WERE IN NO WAY INVOLVED IN THE SPECIAL REIMBURSEMENT PROGRAM.  (FN30) 

RESPONDENTS' ARGUMENT ON DELEGATION RESOLVES ITSELF INTO THE
FOLLOWING:  THE PRESIDENT, IN GENERAL TERMS, HAS AUTHORIZED THE
DEPARTMENT OF DEFENSE TO CREATE PROCEDURES TO RESTRICT THE
DISSEMINATION OF CLASSIFIED INFORMATION AND HAS APPARENTLY ACQUIESCED
IN THE ELABORATE PROGRAM ESTABLISHED BY THE SECRETARY OF DEFENSE EVEN
WHERE APPLICATION OF THE PROGRAM RESULTS IN RESTRAINTS ON TRADITIONAL
FREEDOMS WITHOUT THE USE OF LONG-REQUIRED PROCEDURAL PROTECTIONS. 
SIMILARLY, CONGRESS, ALTHOUGH IT HAS NOT ENACTED SPECIFIC LEGISLATION
RELATING TO CLEARANCE PROCEDURES TO BE UTILIZED FOR INDUSTRIAL WORKERS,
HAS ACQUIESCED IN THE EXISTING DEPARTMENT OF DEFENSE PROGRAM AND HAS
RATIFIED IT BY SPECIFICALLY APPROPRIATING FUNDS TO FINANCE ONE ASPECT
OF IT. 

IF ACQUIESCENCE OR IMPLIED RATIFICATION WERE ENOUGH TO SHOW
DELEGATION OF AUTHORITY TO TAKE ACTIONS WITHIN THE AREA OF QUESTIONABLE
CONSTITUTIONALITY, WE MIGHT AGREE WITH RESPONDENTS THAT DELEGATION HAS
BEEN SHOWN HERE.  IN MANY CIRCUMSTANCES, WHERE THE GOVERNMENT'S FREEDOM
TO ACT IS CLEAR, AND THE CONGRESS OR THE PRESIDENT HAS PROVIDED GENERAL
STANDARDS OF ACTION AND HAS ACQUIESCED IN ADMINISTRATIVE
INTERPRETATION, DELEGATION MAY BE INFERRED.  THUS, EVEN IN THE ABSENCE
OF SPECIFIC DELEGATION, WE HAVE NO DIFFICULTY IN FINDING, AS WE DO,
THAT THE DEPARTMENT OF DEFENSE HAS BEEN AUTHORIZED TO FASHION AND APPLY
AN INDUSTRIAL CLEARANCE PROGRAM WHICH AFFORDS AFFECTED PERSONS THE
SAFEGUARDS OF CONFRONTATION AND CROSS-EXAMINATION.  BUT THIS CASE DOES
NOT PRESENT THAT SITUATION.  WE DEAL HERE WITH SUBSTANTIAL RESTRAINTS
ON EMPLOYMENT OPPORTUNITIES OF NUMEROUS PERSONS IMPOSED IN A MANNER
WHICH IS IN CONFLICT WITH OUR LONG-ACCEPTED NOTIONS OF FAIR
PROCEDURES.  (FN31)  BEFORE WE ARE ASKED TO JUDGE WHETHER, IN THE
CONTEXT OF SECURITY CLEARANCE CASES, A PERSON MAY BE DEPRIVED OF THE
RIGHT TO FOLLOW HIS CHOSEN PROFESSION WITHOUT FULL HEARINGS WHERE
ACCUSERS MAY BE CONFRONTED, IT MUST BE MADE CLEAR THAT THE PRESIDENT OR
CONGRESS, WITHIN THEIR RESPECTIVE CONSTITUTIONAL POWERS, SPECIFICALLY
HAS DECIDED THAT THE IMPOSED PROCEDURES ARE NECESSARY AND WARRANTED AND
HAS AUTHORIZED THEIR USE.  CF. WATKINS V. UNITED STATES, 354 U.S. 178;
SCULL V. VIRGINIA, 359 U.S. 344.  SUCH DECISIONS CANNOT BE ASSUMED BY
ACQUIESCENCE OR NON-ACTION.  KENT V. DULLES, 357 U.S. 116; PETERS V.
HOBBY, 349 U.S. 331; EX PARTE ENDO, 323 U.S. 283, 301-302.  THEY MUST
BE MADE EXPLICITLY NOT ONLY TO ASSURE THAT INDIVIDUALS ARE NOT DEPRIVED
OF CHERISHED RIGHTS UNDER PROCEDURES NOT ACTUALLY AUTHORIZED, SEE
PETERS V. HOBBY, SUPRA, BUT ALSO BECAUSE EXPLICIT ACTION, ESPECIALLY IN
AREAS OF DOUBTFUL CONSTITUTIONALITY, REQUIRES CAREFUL AND PURPOSEFUL
CONSIDERATION BY THOSE RESPONSIBLE FOR ENACTING AND IMPLEMENTING OUR
LAWS.  WITHOUT EXPLICIT ACTION BY LAWMAKERS, DECISIONS OF GREAT
CONSTITUTIONAL IMPORT AND EFFECT WOULD BE RELEGATED BY DEFAULT TO
ADMINISTRATORS WHO, UNDER OUR SYSTEM OF GOVERNMENT, ARE NOT ENDOWED
WITH AUTHORITY TO DECIDE THEM. 

WHERE ADMINISTRATIVE ACTION HAS RAISED SERIOUS CONSTITUTIONAL
PROBLEMS, THE COURT HAS ASSUMED THAT CONGRESS OR THE PRESIDENT INTENDED
TO AFFORD THOSE AFFECTED BY THE ACTION THE TRADITIONAL SAFEGUARDS OF
DUE PROCESS.  SEE, E.G., THE JAPANESE IMMIGRANT CASE, 189 U.S. 86, 101;
DISMUKE V. UNITED STATES, 297 U.S. 167, 172; EX PARTE ENDO, 323 U.S.
283, 299-300; AMERICAN POWER CO. V. SECURITIES AND EXCHANGE COMM'N, 329
U.S. 90, 107-108; HANNEGAN V. ESQUIRE, 327 U.S. 146, 156; WONG YANG
SUNG V. MCGRATH, 339 U.S. 33, 49.  CF. ANNISTON MFG. CO. V. DAVIS, 301
U.S. 337; UNITED STATES V. RUMELY, 345 U.S. 41.  THESE CASES REFLECT
THE COURT'S CONCERN THAT TRADITIONAL FORMS OF FAIR PROCEDURE NOT BE
RESTRICTED BY IMPLICATION OR WITHOUT THE MOST EXPLICIT ACTION BY THE
NATION'S LAWMAKERS, EVEN IN AREAS WHERE IT IS POSSIBLE THAT THE
CONSTITUTION PRESENTS NO INHIBITION. 

IN THE INSTANT CASE, PETITIONER'S WORK OPPORTUNITIES HAVE BEEN
SEVERELY LIMITED ON THE BASIS OF A FACT DETERMINATION RENDERED AFTER A
HEARING WHICH FAILED TO COMPORT WITH OUR TRADITIONAL IDEAS OF FAIR
PROCEDURE.  THE TYPE OF HEARING WAS THE PRODUCT OF ADMINISTRATIVE
DECISION NOT EXPLICITLY AUTHORIZED BY EITHER CONGRESS OR THE
PRESIDENT.  WHETHER THOSE PROCEDURES UNDER THE CIRCUMSTANCES COMPORT
WITH THE CONSTITUTION WE DO NOT DECIDE.  NOR DO WE DECIDE WHETHER THE
PRESIDENT HAS INHERENT AUTHORITY TO CREATE SUCH A PROGRAM, WHETHER
CONGRESSIONAL ACTION IS NECESSARY, OR WHAT THE LIMITS ON EXECUTIVE OR
LEGISLATIVE AUTHORITY MAY BE.  WE DECIDE ONLY THAT IN THE ABSENCE OF
EXPLICIT AUTHORIZATION FROM EITHER THE PRESIDENT OR CONGRESS THE
RESPONDENTS WERE NOT EMPOWERED TO DEPRIVE PETITIONER OF HIS JOB IN A
PROCEEDING IN WHICH HE WAS NOT AFFORDED THE SAFEGUARDS OF CONFRONTATION
AND CROSS-EXAMINATION. 

ACCORDINGLY, THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR PROCEEDINGS NOT INCONSISTENT HEREWITH.  IT IS SO
ORDERED. 

FN1  PETITIONER WAS GIVEN A CONFIDENTIAL CLEARANCE BY THE ARMY ON
AUGUST 9, 1949, A TOP SECRET CLEARANCE BY THE ASSISTANT CHIEF OF STAFF
G-2, MILITARY DISTRICT OF WASHINGTON ON NOVEMBER 9, 1949, AND A TOP
SECRET CLEARANCE BY THE AIR MATERIEL COMMAND ON FEBRUARY 3, 1950. 

FN2  ERCO DID CLASSIFIED CONTRACT WORK FOR THE VARIOUS SERVICES.  IN
1951, IN CONNECTION WITH A CLASSIFIED RESEARCH PROJECT FOR THE NAVY, IT
ENTERED INTO A SECURITY AGREEMENT IN WHICH IT UNDERTOOK "TO PROVIDE AND
MAINTAIN A SYSTEM OF SECURITY CONTROLS WITHIN ITS  ...  OWN
ORGANIZATION IN ACCORDANCE WITH THE REQUIREMENTS OF THE DEPARTMENT OF
DEFENSE INDUSTRIAL SECURITY MANUAL  ...  ."  THE MANUAL, IN TURN,
PROVIDED IN PARAGRAPHS 4(E) AND 6: 

"THE CONTRACTOR SHALL EXCLUDE (THIS DOES NOT IMPLY THE DISMISSAL OR
SEPARATION OF ANY EMPLOYEE) FROM ANY PART OF ITS PLANTS, FACTORIES, OR
SITES AT WHICH WORK FOR ANY MILITARY DEPARTMENT IS BEING PERFORMED, ANY
PERSON OR PERSONS WHOM THE SECRETARY OF THE MILITARY DEPARTMENT
CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, IN THE INTEREST OF
SECURITY, MAY DESIGNATE IN WRITING. 

     *         *         *         *     * 

"NO INDIVIDUAL SHALL BE PERMITTED TO HAVE ACCESS TO CLASSIFIED MATTER
UNLESS CLEARED BY THE GOVERNMENT OR THE CONTRACTOR, AS THE CASE MAY BE,
AS SPECIFIED IN THE FOLLOWING SUBPARAGRAPHS AND THEN HE WILL BE GIVEN
ACCESS TO SUCH MATTER ONLY TO THE EXTENT OF HIS CLEARANCE  ...  ." 

FN3  THE PSB WAS CREATED PURSUANT TO AN INTERIM AGREEMENT DATED
OCTOBER 9, 1947, BETWEEN THE ARMY, NAVY, AND AIR FORCE AND PURSUANT TO
A MEMORANDUM OF AGREEMENT BETWEEN THE PROVOST MARSHAL GENERAL AND THE
AIR PROVOST MARSHAL, DATED MARCH 17, 1948.  "IT WAS A THREE-MAN BOARD,
WITH ONE REPRESENTATIVE FROM EACH OF THE MILITARY DEPARTMENTS  ...  .
ITS FUNCTIONS WERE TO GRANT OR DENY CLEARANCE FOR EMPLOYMENT ON
AERONAUTICAL OR CLASSIFIED CONTRACT WORK WHEN SUCH CONSENT WAS
REQUIRED, AND TO SUSPEND INDIVIDUALS, WHOSE CONTINUED EMPLOYMENT WAS
CONSIDERED INIMICAL TO THE SECURITY INTERESTS OF THE UNITED STATES,
FROM EMPLOYMENT ON CLASSIFIED WORK."  REPORT OF THE COMMISSION ON
GOVERNMENT SECURITY, 1957, S. DOC. NO. 64, 85TH CONG., 1ST SESS. 239. 
IT ESTABLISHED ITS OWN PROCEDURES WHICH WERE APPROVED BY THE
SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE.  SEE "PROCEDURES
GOVERNING THE ARMY-NAVY-AIR FORCE PERSONNEL SECURITY BOARD, DATED 19
JUNE 1950." 

FN4  THE IERB WAS A FOUR-MEMBER BOARD WHICH WAS GIVEN JURISDICTION TO
HEAR AND REVIEW APPEALS FROM DECISIONS OF THE PSB.  ITS CHARTER, DATED
7 NOVEMBER 1949 AND SIGNED BY THE SECRETARIES OF THE ARMY, NAVY, AND
AIR FORCE, CONTEMPLATED THAT IT WOULD AFFORD HEARINGS TO PERSONS DENIED
CLEARANCE.  AND SEE "PROCEDURES GOVERNING APPEALS TO THE INDUSTRIAL
EMPLOYMENT REVIEW BOARD, DATED 7 NOVEMBER 1949." 

FN5  THE LETTER READ, IN PART: 

"THAT OVER A PERIOD OF YEARS, 1943-1947, AT OR NEAR WASHINGTON, D.C.,
YOU HAVE CLOSELY AND SYMPATHETICALLY ASSOCIATED WITH PERSONS WHO ARE
REPORTED TO BE OR TO HAVE BEEN MEMBERS OF THE COMMUNIST PARTY; THAT
DURING THE PERIOD 1944-1947 YOU ENTERTAINED AND WERE VISITED AT YOUR
HOME BY MILITARY REPRESENTATIVES OF THE RUSSIAN EMBASSY, WASHINGTON,
D.C.; THAT, FURTHER, YOU ATTENDED SOCIAL FUNCTIONS DURING THE PERIOD
1944-1947 AT THE RUSSIAN EMBASSY, WASHINGTON, D.C.; AND ON 7 APRIL 1947
ATTENDED THE SOUTHERN CONFERENCE FOR HUMAN WELFARE, THIRD ANNUAL
DINNER, STATLER HOTEL, WASHINGTON, D.C. (CITED AS COMMUNIST FRONT
ORGANIZATION, CONGRESSIONAL COMMITTEE ON UN-AMERICAN ACTIVITIES)." 

FN6  THE BOARDS WERE ABOLISHED PURSUANT TO A MEMORANDUM OF MARCH 27,
1953, ISSUED BY THE SECRETARY OF DEFENSE TO THE SECRETARIES OF THE
ARMY, NAVY, AND AIR FORCE AND TO THE CHAIRMAN OF THE MUNITIONS BOARD. 
IT PROVIDED IN PART: 

"5.  THE DEPARTMENT OF THE ARMY, NAVY AND AIR FORCE SHALL ESTABLISH
SUCH NUMBER OF GEOGRAPHICAL REGIONS WITHIN THE UNITED STATES AS SEEMS
APPROPRIATE TO THE WORK-LOAD IN EACH REGION.  THERE SHALL THEN BE
ESTABLISHED WITHIN EACH REGION AN INDUSTRIAL PERSONNEL SECURITY BOARD. 
THIS BOARD SHALL CONSIST OF TWO SEPARATE AND DISTINCT DIVISIONS, A
SCREENING DIVISION AND AN APPEAL DIVISION, WITH EQUAL REPRESENTATION OF
THE DEPARTMENTS OF THE ARMY, NAVY AND AIR FORCE ON EACH SUCH DIVISION. 
THE APPEAL DIVISION SHALL HAVE JURISDICTION TO HEAR APPEALS FROM THE
DECISION OF THE SCREENING DIVISION AND ITS DECISIONS SHALL BE
DETERMINED BY A MAJORITY VOTE WHICH SHALL BE FINAL, SUBJECT ONLY TO
RECONSIDERATION ON ITS OWN MOTION OR AT THE REQUEST OF THE APPELLANT
FOR GOOD CAUSE SHOWN OR AT THE REQUEST OF THE SECRETARY OF ANY MILITARY
DEPARTMENT." 

FN7  THE MEMORANDUM FROM THE SECRETARY OF DEFENSE ALSO PROVIDED: 

"6.  THE SECRETARIES OF THE ARMY, NAVY AND AIR FORCE, SHALL WITHIN
THIRTY DAYS (30), ESTABLISH SUCH GEOGRAPHICAL REGIONS AND DEVELOP JOINT
UNIFORM STANDARDS, CRITERIA, AND DETAILED PROCEDURES TO IMPLEMENT THE
ABOVE-DESCRIBED PROGRAM.  IN DEVELOPING THE STANDARDS, CRITERIA, AND
PROCEDURES, FULL CONSIDERATION SHALL BE GIVEN TO THE RIGHTS OF
INDIVIDUALS, CONSISTENT WITH SECURITY REQUIREMENTS.  AFTER APPROVAL BY
THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE, THE STANDARDS,
CRITERIA, AND PROCEDURES SHALL GOVERN THE OPERATIONS OF THE BOARD." 

FN8  THE MEMORANDUM PROVIDED: 

"7.  ALL CASES PENDING BEFORE THE ARMY-NAVY-AIR FORCE PERSONNEL
SECURITY BOARD AND THE INDUSTRIAL EMPLOYMENT REVIEW BOARD SHALL BE
REFERRED FOR ACTION UNDER THIS ORDER TO THE APPROPRIATE INDUSTRIAL
PERSONNEL SECURITY BOARD."    FN9  THE MEMORANDUM FURTHER PROVIDED: 

"4.  THE CRITERIA GOVERNING ACTIONS BY THE INDUSTRIAL EMPLOYMENT
REVIEW BOARD, DATED 7 NOVEMBER 1949, AS REVISED 10 NOVEMBER 1950, AND
APPROVED BY THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE, SHALL
GOVERN SECURITY CLEARANCES OF INDUSTRIAL FACILITIES AND INDUSTRIAL
PERSONNEL BY THE SECRETARIES OF THE ARMY, NAVY AND AIR FORCE UNTIL SUCH
TIME AS UNIFORM CRITERIA ARE ESTABLISHED IN CONNECTION WITH PARAGRAPH 6
OF THIS MEMORANDUM." 

FN10  SEE NOTE 2, SUPRA. 

FN11  THE CHAIRMAN OF THE BOARD OF ERCO, COLONEL HENRY BERLINER,
LATER TESTIFIED BY AFFIDAVIT AS FOLLOWS: 

"DURING THE YEAR 1953, AND FOR MANY YEARS PREVIOUS THERETO, I WAS THE
PRINCIPAL STOCKHOLDER OF ENGINEERING AND RESEARCH CORPORATION, A
CORPORATION WHICH HAD ITS PRINCIPAL PLACE OF BUSINESS AT RIVERDALE,
MARYLAND.  I WAS ALSO THE CHAIRMAN OF THE BOARD, AND THE PRINCIPAL
EXECUTIVE OFFICER OF THIS CORPORATION. 

"I AM ACQUAINTED WITH WILLIAM LEWIS GREENE.  PRIOR TO THE MONTH OF
APRIL, 1953, MR. GREENE WAS VICE-PRESIDENT IN CHARGE OF ENGINEERING AND
GENERAL MANAGER OF ENGINEERING AND RESEARCH CORPORATION.   HE HAS BEEN
EMPLOYED BY THIS CORPORATION SINCE 1937.  HIS PROGRESS IN THE COMPANY
HAS BEEN CONSISTENT.  HE WAS ONE OF OUR MOST VALUED AND VALUABLE
EMPLOYEES, AND WAS RESPONSIBLE FOR MUCH OF THE WORK WHICH ENGINEERING
AND RESEARCH CORPORATION WAS DOING.  IN APRIL, 1953, THE COMPANY
RECEIVED A LETTER FROM THE SECRETARY OF THE NAVY ADVISING US THAT
CLEARANCE HAD BEEN DENIED TO MR. GREENE AND ADVISING US THAT IT WOULD
BE NECESSARY TO BAR HIM FROM ACCESS TO OUR PLANT.  IN VIEW OF HIS
POSITION WITH THE COMPANY, THERE WAS NO WORK WHICH HE COULD DO IN LIGHT
OF THIS DENIAL OF CLEARANCE BY THE NAVY.  AS A RESULT, IT WAS NECESSARY
FOR THE COMPANY TO DISCHARGE HIM.  THERE WAS NO OTHER REASON FOR MR.
GREENE'S DISCHARGE, AND IN THE ABSENCE OF THE LETTER REFERRED TO, HE
COULD HAVE CONTINUED IN THE EMPLOYMENT OF ENGINEERING AND RESEARCH
CORPORATION INDEFINITELY." 

FN12  THE PRESIDENT OF ERCO WROTE TO THE SECRETARY OF THE NAVY AS
FOLLOWS: 

"THE HONORABLE R.B. ANDERSON. 

"SECRETARY OF THE NAVY. 

"WASHINGTON 25, D.C. 

"MY DEAR MR. SECRETARY: 

"RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF APRIL 17, 1953 IN WHICH
YOU STATE THAT YOU HAVE REVIEWED THE CASE HISTORY FILE ON WILLIAM LEWIS
GREENE AND HAVE CONCLUDED THAT HIS CONTINUED ACCESS TO NAVY CLASSIFIED
SECURITY INFORMATION IS INCONSISTENT WITH THE BEST INTERESTS OF
NATIONAL SECURITY. 

"YOU REQUEST THIS COMPANY TO EXCLUDE MR. GREENE FROM OUR PLANTS,
FACTORIES OR SITES AND TO BAR HIM FROM INFORMATION, IN THE INTERESTS OF
PROTECTING NAVY CLASSIFIED PROJECTS AND CLASSIFIED SECURITY
INFORMATION. 

"IN ACCORDANCE WITH YOUR REQUEST, PLEASE BE ADVISED THAT SINCE
RECEIPT OF YOUR LETTER THIS COMPANY HAS EXCLUDED MR. GREENE FROM ANY
PART OF OUR PLANTS, FACTORIES OR SITES AND BARRED HIM ACCESS TO ALL
CLASSIFIED SECURITY INFORMATION. 

"FOR YOUR FURTHER INFORMATION, MR. GREENE TENDERED HIS RESIGNATION AS
AN OFFICER OF THIS CORPORATION AND HAS LEFT THE PLANT.  WE SHALL HAVE
NO FURTHER CONTACT WITH HIM UNTIL HIS STATUS IS CLARIFIED ALTHOUGH WE
HAVE NOT YET FORMALLY ACCEPTED HIS RESIGNATION. 

"MR. GREENE IS VICE PRESIDENT OF THIS COMPANY IN CHARGE OF
ENGINEERING.  HIS KNOWLEDGE, EXPERIENCE AND EXECUTIVE ABILITY HAVE
PROVEN OF INESTIMABLE VALUE IN THE PAST.  THE LOSS OF HIS SERVICES AT
THIS TIME IS A SERIOUS BLOW TO COMPANY OPERATIONS.  ACCORDINGLY, WE
SHOULD LIKE THE PRIVILEGE OF A PERSONAL CONFERENCE TO DISCUSS THE
MATTER FURTHER. 

"FURTHERMORE, YOU STATE THAT YOU ARE REFERRING THE CASE TO THE
SECRETARY OF DEFENSE RECOMMENDING THAT THE INDUSTRIAL EMPLOYMENT REVIEW
BOARD'S DECISION OF JANUARY 29, 1952 BE OVERRULED.  IF IT IS
APPROPRIATE, WE SHOULD LIKE VERY MUCH TO HAVE THE PRIVILEGE OF
DISCUSSING THE MATTER WITH THE SECRETARY OF DEFENSE. 

"PLEASE ACCEPT OUR THANKS FOR ANY OFFICIAL COURTESIES WHICH YOU ARE
IN A POSITION TO EXTEND. 

                                        "RESPECTFULLY YOURS,

                                              "ENGINEERING AND
RESEARCH CORPORATION

            "BY /S/ L.A. WELLS" 

FN13  ON MAY 4, 1953, PURSUANT TO THE MEMORANDUM OF THE SECRETARY OF
DEFENSE DATED MARCH 27, 1953, SEE NOTE 6, SUPRA, THE SECRETARIES OF THE
MILITARY DEPARTMENTS ESTABLISHED REGIONAL INDUSTRIAL PERSONNEL SECURITY
BOARDS GOVERNED BY GENERALIZED STANDARDS, CRITERIA, AND PROCEDURES. 

FN14  THE SPECIFICATIONS WERE CONTAINED IN A LETTER TO PETITIONER'S
COUNSEL DATED APRIL 9, 1954, WHICH WAS SENT NINETEEN DAYS BEFORE THE
HEARING.  THAT LETTER PROVIDED IN PART: 

"SECURITY CONSIDERATIONS PERMIT DISCLOSURE OF THE FOLLOWING
INFORMATION THAT HAS THUS FAR RESULTED IN THE DENIAL OF CLEARANCE TO
MR. GREENE: 

"1.  DURING 1942 SUBJECT WAS A MEMBER OF THE WASHINGTON BOOK SHOP
ASSOCIATION, AN ORGANIZATION THAT HAS BEEN OFFICIALLY CITED BY THE
ATTORNEY GENERAL OF THE UNITED STATES AS COMMUNIST AND SUBVERSIVE. 

"2.  SUBJECT'S FIRST WIFE, JEAN HINTON GREENE, TO WHOM HE WAS MARRIED
FROM APPROXIMATELY DECEMBER 1942 TO APPROXIMATELY DECEMBER 1947, WAS AN
ARDENT COMMUNIST DURING THE GREATER PART OF THE PERIOD OF THE
MARRIAGE. 

"3.  DURING THE PERIOD OF SUBJECT'S FIRST MARRIAGE HE AND HIS WIFE
HAD MANY COMMUNIST PUBLICATIONS IN THEIR HOME, INCLUDING THE 'DAILY
WORKER'; 'SOVIET RUSSIA TODAY'; 'IN FACT'; AND KARL MARX'S 'DAS
KAPITAL.' 

"4.  MANY APPARENTLY RELIABLE WITNESSES HAVE TESTIFIED THAT DURING
THE PERIOD OF SUBJECT'S FIRST MARRIAGE HIS PERSONAL POLITICAL
SYMPATHIES WERE IN GENERAL ACCORD WITH THOSE OF HIS WIFE, IN THAT HE
WAS SYMPATHETIC TOWARDS RUSSIA; FOLLOWED THE COMMUNIST PARTY 'LINE';
PRESENTED 'FELLOW-TRAVELLER' ARGUMENTS; WAS APPARENTLY INFLUENCED BY
'JEAN'S WILD THEORIES'; ETC.  (NOTHING IN THE RECORD ESTABLISHES THAT
ANY WITNESS "TESTIFIED" AT ANY HEARING ON THESE SUBJECTS AND EVERYTHING
IN THE RECORD INDICATES THAT THEY COULD HAVE DONE NO MORE THAN MAKE
SUCH STATEMENTS TO INVESTIGATIVE OFFICERS.) 

"5.  IN ABOUT 1946 SUBJECT INVESTED APPROXIMATELY $1000.  IN THE
METROPOLITAN BROADCASTING CORPORATION AND LATER BECAME A DIRECTOR OF
ITS RADIO STATION WQQW.  IT HAS BEEN RELIABLY REPORTED THAT MANY OF THE
STOCKHOLDERS OF THE CORPORATION WERE COMMUNISTS OR PRO-COMMUNISTS AND
THAT THE NEWS COVERAGE AND RADIO PROGRAMS OF STATION WQQW FREQUENTLY
PARALLELED THE COMMUNIST PARTY 'LINE.'  (THIS STATION IS NOW STATION
WGMS, WASHINGTON'S "GOOD MUSIC STATION."  PETITIONER STATED THAT HE
INVESTED MONEY IN THE STATION BECAUSE HE LIKED CLASSICAL MUSIC AND HE
CONSIDERED IT A GOOD INVESTMENT.) 

"6.  ON 7 APRIL 1947 SUBJECT AND HIS WIFE JEAN ATTENDED THE THIRD
ANNUAL DINNER OF THE SOUTHERN CONFERENCE FOR HUMAN WELFARE, AN
ORGANIZATION THAT HAS BEEN OFFICIALLY CITED AS A COMMUNIST FRONT. 
(THIS DINNER WAS ALSO ATTENDED BY MANY WASHINGTON NOTABLES, INCLUDING
SEVERAL MEMBERS OF THIS COURT.) 

"7.  BEGINNING ABOUT 1942 AND CONTINUING FOR SEVERAL YEARS THEREAFTER
SUBJECT MAINTAINED SYMPATHETIC ASSOCIATIONS WITH VARIOUS OFFICIALS OF
THE SOVIET EMBASSY, INCLUDING MAJOR CONSTANTINE I. OVCHINNIKOV, COL.
PAVEL F. BEREZIN, MAJOR PAVEL N. ASSEEV, COL. ILIA M. SARAEV, AND COL.
ANATOLY Y. GOLKOVSKY.  (HIGH-LEVEL EXECUTIVES OF ERCO, AS ABOVE NOTED,
TESTIFIED THAT THESE ASSOCIATIONS WERE CARRIED ON TO SECURE BUSINESS
FOR THE CORPORATION.) 

"8.  DURING 1946 AND 1947 SUBJECT HAD FREQUENT SYMPATHETIC
ASSOCIATION WITH DR. VASO SYRZENTIC OF THE YUGOSLAV EMBASSY.  DR.
SYRZENTIC HAS BEEN IDENTIFIED AS AN AGENT OF THE INTERNATIONAL
COMMUNIST PARTY.  (PETITIONER TESTIFIED THAT HE MET THIS INDIVIDUAL
ONCE IN CONNECTION WITH A BUSINESS TRANSACTION.) 

"9.  DURING 1943 SUBJECT WAS IN CONTACT WITH COL. ALEXANDER HESS OF
THE CZECHOSLOVAK EMBASSY, WHO HAS BEEN IDENTIFIED AS AN AGENT OF THE
RED ARMY INTELLIGENCE.  (THIS CHARGE WAS APPARENTLY ABANDONED AS NO
ADVERSE FINDING WAS BASED ON IT.) 

"10.  DURING 1946 AND 1947 SUBJECT MAINTAINED CLOSE AND SYMPATHETIC
ASSOCIATION WITH MR. AND MRS. NATHAN GREGORY SILVERMASTER AND WILLIAM
LUDWIG ULLMAN.  SILVERMASTER AND ULLMAN HAVE BEEN IDENTIFIED AS MEMBERS
OF A SOVIET ESPIONAGE APPARATUS ACTIVE IN WASHINGTON, D.C., DURING THE
1940'S. (SILVERMASTER WAS A TOP ECONOMIST IN THE DEPARTMENT OF
AGRICULTURE AND THE DIRECT SUPERIOR OF PETITIONER'S EX-WIFE WHO THEN
WORKED IN THAT DEPARTMENT.) 

"11.  SUBJECT HAD A SERIES OF CONTACTS WITH LAUGHLIN CURRIE DURING
THE PERIOD 1945-48.  CURRIE HAS ALSO BEEN IDENTIFIED AS A MEMBER OF THE
SILVERMASTER ESPIONAGE GROUP.  (PETITIONER MET CURRIE IN THE EXECUTIVE
OFFICES OF THE PRESIDENT AT A TIME WHEN CURRIE WAS A SPECIAL ASSISTANT
TO THE PRESIDENT.) 

"12.  DURING THE PERIOD BETWEEN 1942 AND 1947 SUBJECT MAINTAINED
FREQUENT AND CLOSE ASSOCIATIONS WITH MANY COMMUNIST PARTY MEMBERS,
INCLUDING R__ S__, AND HIS WIFE E__, B__ W__ AND HIS WIFE M__, M__ P__,
M__ L. D__, R__ N__ AND I__ S__.  (THESE PERSONS WERE APPARENTLY
FRIENDS OF PETITIONER'S EX-WIFE.) 

"13.  DURING SUBSTANTIALLY THE SAME PERIOD SUBJECT MAINTAINED CLOSE
ASSOCIATION WITH MANY PERSONS WHO HAVE BEEN IDENTIFIED AS STRONG
SUPPORTERS OF THE COMMUNIST CONSPIRACY, INCLUDING S__ J. R__, S__ L__,
O__ L__, E__ F__ AND V__ G__.  (THESE PERSONS WERE APPARENTLY FRIENDS
OF HIS EX-WIFE.) 

"IT IS NOTED THAT ALL OF THE ABOVE INFORMATION HAS PREVIOUSLY BEEN
DISCUSSED WITH MR. GREENE AT HIS HEARING BEFORE THE INDUSTRIAL
EMPLOYMENT REVIEW BOARD, AND THAT A COPY OF THE TRANSCRIPT OF THAT
HEARING WAS MADE AVAILABLE TO YOU IN AUGUST OF LAST YEAR." 

FN15  PETITIONER STATED BY AFFIDAVIT IN SUPPORT OF HIS MOTION FOR
SUMMARY JUDGMENT THAT "AFTER MY DISCHARGE FROM ENGINEERING AND RESEARCH
CORPORATION, I MADE EVERY POSSIBLE EFFORT TO SECURE OTHER EMPLOYMENT AT
A SALARY COMMENSURATE WITH MY EXPERIENCE, BUT I WAS UNABLE TO DO SO
BECAUSE ALL OF MY WORK HISTORY HAD BEEN IN THE FIELD OF AERONAUTICS. 
IN SPITE OF EVERYTHING I COULD DO, THE BEST POSITION I COULD OBTAIN WAS
A DRAFTSMAN-ENGINEER IN AN ARCHITECTURAL FIRM.  I WAS OBLIGED TO GO TO
WORK FOR A SALARY OF $4,400 PER YEAR, BECAUSE THE BASIS UPON WHICH A
HIGHER SALARY WOULD BE JUSTIFIED WAS EXPERIENCE IN A FIELD WHICH WAS
NOT PARTICULARLY USEFUL IN THE TYPE OF WORK WHICH I WAS ABLE TO
OBTAIN.  AS A RESULT OF THE ACTIONS OF THE DEFENDANTS COMPLAINED OF,
THE FIELD OF AERONAUTICAL ENGINEERING WAS CLOSED TO ME." 

FN16  FOR INSTANCE, THE FOLLOWING QUESTIONS WERE ASKED IN CONNECTION
WITH THE SO-CALLED "LEFT WING" RADIO STATION IN WHICH PETITIONER OWNED
STOCK, PETITIONER'S ACQUAINTANCESHIP WITH ALLEGED SUBVERSIVES, AND
PETITIONER'S BUSINESS RELATIONSHIPS WITH FOREIGN GOVERNMENTS: 

"Q.  WE HAVE INFORMATION HERE, MR. GREENE, THAT ONE PARTICULAR
INDIVIDUAL SPECIFICALLY CALLED YOUR ATTENTION TO THE FACT THAT
CONGRESSMAN RANKIN AND SENATOR BILBO HAD CHARACTERIZED THIS STATION AS
A COMMUNIST STATION, RUN BY AND FOR COMMUNISTS? 

     *  *         *         *         * 

"Q.  WE HAVE INFORMATION HERE, THIS HAS COME FROM AN INFORMANT
CHARACTERIZED TO BE OF KNOWN RELIABILITY IN WHICH HE REFERS TO
CONVERSATIONS HE HAD WITH YOU ABOUT JANUARY OF 1947 IN WHICH YOU TOLD
HIM THAT YOU HAD VISITED M__ P__ THE PREVIOUS EVENING AND HAD BECOME
RATHER CHUMMY WITH HIM, DO YOU WISH TO COMMENT ON THAT? 

     *  *         *         *         * 

"Q.  CONCERNING YOUR RELATIONSHIP WITH S__ L__, WE HAVE INFORMATION
HERE FROM AN INFORMANT CHARACTERIZED AS BEING ONE OF KNOWN RELIABILITY,
IN WHICH S__ L__ TOLD THIS INFORMANT THAT SHORTLY FOLLOWING HER WESTERN
HIGH SCHOOL SPEECH IN 1947, SHE REMARKED TO YOU THAT PROBABLY MANY
PEOPLE WILL LEARN THINGS ABOUT RUSSIA AND SHE QUOTED YOU AS REPLYING,
'WELL I HOPE THEY LEARN SOMETHING GOOD, AT LEAST.'  DO YOU WISH TO SAY
ANYTHING ABOUT THAT? 

     *         *      *         *         * 

"Q.  INFORMATION WE HAVE, MR. GREENE, INDICATES FIRST OF ALL, THAT
YOU DIDN'T MEET THESE RUSSIANS IN 1942 BUT YOU MET THEM IN EARLY 1943. 

     *  *         *         *         * 

"Q.  NOW, WE HAVE FURTHER INFORMATION, MR. GREENE, INDICATING THAT
THE INITIATIVE OF THESE CONTACTS CAME FROM COL. BEREZIN. 

     *         *    *         *         * 

"Q.  WE HAVE INFORMATION HERE INDICATING THAT AS A MATTER OF FACT,
SIR, WE DO KNOW THAT THE MEETING BETWEEN YOU AND COL. BEREZIN WAS
ARRANGED THROUGH HESS AND HOCHFELD AS YOU INDICATED.  WE ALSO HAVE
INFORMATION FROM A SOURCE IDENTIFIED AS BEING ONE OF KNOWN RELIABILITY
REFERRING TO A CONVERSATION THAT THIS SOURCE HAD WITH HESS IN APRIL
1943 IN WHICH HESS STATED THAT HE HAD BEEN TALKING TO ONE HARRY, NOT
FURTHER IDENTIFIED BUT PRESUMED TO BE HOCHFELD AND THAT HARRY SAID TO
HESS THAT HE HAD A YOUNG ENGINEER WHO IS A GOOD FRIEND OF OURS AND OF
OUR CAUSE AND HARRY WANTED HESS TO SET UP A MEETING BETWEEN BEREZIN AND
YOURSELF.  CAN YOU GIVE US SOME REASON WHY HARRY MIGHT HAVE REFERRED TO
YOU AS A GOOD FRIEND OF OUR CAUSE? 

     *         *         *         *         * 

"Q.  OF COURSE, WE CAN MAKE CERTAIN ASSUMPTIONS AS TO WHY COL.
BEREZIN MIGHT HAVE WANTED TO MEET YOU BACK IN DECEMBER 1942 WHEN WE
LOOK AT A STATEMENT LIKE THIS INDICATING THAT YOU WERE CONSIDERED A
GOOD FRIEND OF THEIR'S AND OF THEIR CAUSE.  OF COURSE, SOME WEIGHT IS
LENT TO THIS ASSUMPTION BY THE FACT THAT YOUR WIFE WAS STRONGLY PRO
COMMUNIST AND AFTER SHE LEFT YOU SHE BECAME VERY ACTIVE IN COMMUNIST
AFFAIRS, IN CASE YOU DON'T KNOW THAT, I'LL PASS IT ON TO YOU."    AND
THE FOLLOWING QUESTIONS WERE ASKED OF VARIOUS WITNESSES PRESENTED BY
PETITIONER EVIDENTLY BECAUSE THE BOARD HAD CONFIDENTIAL INFORMATION
THAT PETITIONER'S EX-WIFE WAS "ECCENTRIC." 

"Q.  NOW YOU WERE IN BILL'S HOME, THAT RED BRICK HOUSE THAT YOU'RE
TALKING ABOUT. 

     *         *         *         *         * 

"Q.  WAS THERE ANYTHING UNUSUAL ABOUT THE HOUSE ITSELF, THE INTERIOR
OF IT, WAS IT DIRTY?           *         *         *         *
* 

"Q.  WERE THERE ANY BEDS IN THEIR HOUSE WHICH HAD NO MATTRESSES ON
THEM? 

     *   *         *         *         * 

"Q.  DID YOU EVER HEAR IT SAID THAT JEAN SLEPT ON A BOARD IN ORDER TO
KEEP THE COMMON TOUCH? 

     *         *         *         *         * 

"Q.  WHEN YOU WERE IN JEAN'S HOME DID SHE DRESS CONVENTIONALLY WHEN
SHE RECEIVED HER GUESTS? 

     *         *         *        *         * 

"Q.  LET ME ASK YOU THIS, CONVENTIONALLY WHEN SOMEBODY WOULD INVITE
YOU FOR DINNER AT THEIR HOME WOULD YOU EXPECT THEM, IF THEY WERE A
WOMAN TO WEAR A DRESS AND SHOES AND STOCKINGS AND THE USUAL CLOTHING OF
THE EVENING OR WOULD YOU EXPECT THEM TO APPEAR IN OVERALLS?" 

FN17  THE NOTIFICATION STATED: 

"SECURITY CONSIDERATIONS PROHIBIT THE FURNISHING TO AN APPELLANT OF A
DETAILED STATEMENT OF THE FINDINGS ON APPEAL INASMUCH AS THE ENTIRE
FILE IS CONSIDERED AND COMMENTS MADE BY THE APPEAL DIVISION PANEL ON
SECURITY MATTERS WHICH COULD NOT FOR SECURITY REASONS FORM THE BASIS OF
A STATEMENT OF REASONS." 

FN18  THIS BOARD WAS CREATED BY THE SECRETARY OF DEFENSE ON FEBRUARY
2, 1955, AND GIVEN POWER TO REVIEW ADVERSE DECISIONS RENDERED BY THE
REGIONAL BOARDS. 

FN19  THIS WAS THE FIRST TIME THAT PETITIONER WAS CHARGED OR FOUND TO
BE UNTRUSTWORTHY. 

FN20  THE COMPLAINT WAS FILED BEFORE THE ESTABLISHMENT OF THE
INDUSTRIAL PERSONNEL SECURITY REVIEW BOARD.  SEE NOTE 18, SUPRA. 

FN21  THE COURT OF APPEALS STATED:  "WE HAVE NO DOUBT THAT GREENE HAS
IN FACT BEEN INJURED.  HE WAS FORCED OUT OF A JOB THAT PAID HIM $18,000
PER YEAR.  HE HAS SINCE BEEN REDUCED, SO FAR AS THIS RECORD SHOWS, TO
WORKING AS AN ARCHITECTURAL DRAFTSMAN AT A SALARY OF SOME $4,400 PER
YEAR.  FURTHER, AS AN AERONAUTICAL ENGINEER OF CONSIDERABLE EXPERIENCE
HE SAYS (WITHOUT REAL CONTRADICTION) THAT HE IS EFFECTIVELY BARRED FROM
PURSUIT OF MANY ASPECTS OF HIS PROFESSION, GIVEN THE CURRENT DEPENDENCE
OF MOST PHASES OF THE AIRCRAFT INDUSTRY ON DEFENSE DEPARTMENT CONTRACTS
NOT ONLY FOR PRODUCTION BUT FOR RESEARCH AND DEVELOPMENT WORK AS WELL
...  .  NOR DO WE DOUBT THAT, FOLLOWING THE GOVERNMENT'S ACTION, SOME
STIGMA, IN GREATER OR LESS DEGREE, HAS ATTACHED TO GREENE."  103 U.S.
APP. D.C. 87, 95-96, 254 F.2D 944, 952-953. 

FN22  WE NOTE OUR AGREEMENT WITH RESPONDENT'S CONCESSION THAT
PETITIONER HAS STANDING TO BRING THIS SUIT AND TO ASSERT WHATEVER
RIGHTS HE MAY HAVE.  RESPONDENTS' ACTIONS, DIRECTED AT PETITIONER AS AN
INDIVIDUAL, CAUSED SUBSTANTIAL INJURIES, JOINT ANTI-FASCIST COMMITTEE
V. MCGRATH, 341 U.S. 123, 152 (CONCURRING OPINION), AND, WERE THEY THE
SUBJECT OF A SUIT BETWEEN PRIVATE PERSONS, THEY COULD BE ATTACKED AS AN
INVASION OF A LEGALLY PROTECTED RIGHT TO BE FREE FROM ARBITRARY
INTERFERENCE WITH PRIVATE CONTRACTUAL RELATIONSHIPS.  MOREOVER,
PETITIONER HAS THE RIGHT TO BE FREE FROM UNAUTHORIZED ACTIONS OF
GOVERNMENT OFFICIALS WHICH SUBSTANTIALLY IMPAIR HIS PROPERTY
INTERESTS.  CF. PHILADELPHIA CO. V. STIMSON, 223 U.S. 605. 

FN23 THE INDUSTRIAL PERSONNEL SECURITY REVIEW REGULATION, 20 FED.
REG. 1553, RECOMMENDED BY THE SECRETARIES OF THE ARMY, NAVY, AND AIR
FORCE, AND APPROVED BY THE SECRETARY OF DEFENSE, PROVIDED: 

"SEC. 67.1-4.  RELEASE OF INFORMATION.  ALL PERSONNEL IN THE PROGRAM
WILL COMPLY WITH APPLICABLE DIRECTIVES PERTAINING TO THE SAFEGUARDING
OF CLASSIFIED INFORMATION AND THE HANDLING OF INVESTIGATIVE REPORTS. 
NO CLASSIFIED INFORMATION, NOR ANY INFORMATION WHICH MIGHT COMPROMISE
INVESTIGATIVE SOURCES OR METHODS OR THE IDENTITY OF CONFIDENTIAL
INFORMANTS, WILL BE DISCLOSED TO ANY CONTRACTOR OR CONTRACTOR EMPLOYEE,
OR TO HIS LAWYER OR REPRESENTATIVES, OR TO ANY OTHER PERSON NOT
AUTHORIZED TO HAVE ACCESS TO SUCH INFORMATION.  IN ADDITION, IN A CASE
INVOLVING A CONTRACTOR EMPLOYEE THE CONTRACTOR CONCERNED WILL BE
ADVISED ONLY OF THE FINAL DETERMINATION IN THE CASE TO GRANT, DENY, OR
REVOKE CLEARANCE, AND OF ANY DECISION TO SUSPEND A CLEARANCE GRANTED
PREVIOUSLY PENDING FINAL DETERMINATION IN THE CASE.  THE CONTRACTOR
WILL NOT BE GIVEN A COPY OF THE STATEMENT OF REASONS ISSUED TO THE
CONTRACTOR EMPLOYEE EXCEPT AT THE WRITTEN REQUEST OF THE CONTRACTOR
EMPLOYEE CONCERNED." 

FN24  SEE "CHARTER OF THE INDUSTRIAL EMPLOYMENT REVIEW BOARD, DATED 7
NOVEMBER 1949," NOTE 4, SUPRA; "CHARTER OF THE ARMY-NAVY-AIR FORCE
PERSONNEL SECURITY BOARD, DATED 19 JUNE 1950," NOTE 3, SUPRA;
MEMORANDUM ISSUED BY THE SECRETARY OF DEFENSE TO THE SECRETARIES OF THE
ARMY, NAVY, AND AIR FORCE AND TO THE CHAIRMAN OF THE MUNITIONS BOARD,
DATED MARCH 27, 1953, NOTES 6, 7, 8 AND 9, SUPRA; "THE INDUSTRIAL
PERSONNEL AND FACILITY SECURITY CLEARANCE PROGRAM," EFFECTIVE MAY 4,
1953, NOTE 13, SUPRA; "THE INDUSTRIAL PERSONNEL SECURITY REVIEW
REGULATION," 20 FED. REG. 1553, 32 CFR PART 67 (1958 SUPP.); INDUSTRIAL
SECURITY MANUAL FOR SAFEGUARDING CLASSIFIED INFORMATION, 20 FED. REG.
6213, 21 FED. REG. 2814. 

FN25  WHEN FESTUS MORE THAN TWO THOUSAND YEARS AGO REPORTED TO KING
AGRIPPA THAT FELIX HAD GIVEN HIM A PRISONER NAMED PAUL AND THAT THE
PRIESTS AND ELDERS DESIRED TO HAVE JUDGMENT AGAINST PAUL, FESTUS IS
REPORTED TO HAVE STATED:  "IT IS NOT THE MANNER OF THE ROMANS TO
DELIVER ANY MAN TO DIE, BEFORE THAT HE WHICH IS ACCUSED HAVE THE
ACCUSERS FACE TO FACE, AND HAVE LICENSE TO ANSWER FOR HIMSELF
CONCERNING THE CRIME LAID AGAINST HIM."  ACTS.  25:16. 

PROFESSOR WIGMORE EXPLAINS IN SOME DETAIL THE EMERGENCE OF THE
PRINCIPLE IN ANGLO-AMERICAN LAW THAT CONFRONTATION AND CROSS
EXAMINATION ARE BASIC INGREDIENTS IN A FAIR TRIAL.  5 WIGMORE ON
EVIDENCE (3D ED. 1940) SEC. 1364.  AND SEE O'BRIAN, NATIONAL SECURITY
AND INDIVIDUAL FREEDOM, 62. 

FN26  FOR INSTANCE, IN THE INSTANT CASE, TO ESTABLISH THE CHARGE THAT
PETITIONER'S "PERSONAL POLITICAL SYMPATHIES WERE IN GENERAL ACCORD WITH
THOSE OF HIS WIFE," THE EIPSB APPARENTLY RELIED ON STATEMENTS MADE TO
INVESTIGATORS BY "OLD" FRIENDS OF PETITIONER.  THUS, THE FOLLOWING
QUESTIONS WERE ASKED PETITIONER: 

"Q.  I'D LIKE TO READ TO YOU A QUOTATION FROM THE TESTIMONY OF A
PERSON WHO HAD IDENTIFIED HIMSELF AS HAVING BEEN A VERY CLOSE FRIEND OF
YOURS OVER A LONG PERIOD OF YEARS.  HE STATES THAT YOU, AS SAYING TO
HIM ONE DAY THAT YOU WERE READING A GREAT DEAL OF PRO-COMMUNIST BOOKS
AND OTHER LITERATURE.  DO YOU WISH TO COMMENT ON THAT? 

     *         *         *         *         * 

"Q.  INCIDENTALLY THIS MAN'S TESTIMONY CONCERNING YOU WAS ENTIRELY
FAVORABLE IN ONE RESPECT.  HE STATED THAT HE DIDN'T THINK YOU WERE A
COMMUNIST BUT HE DID STATE THAT HE THOUGHT THAT YOU HAD BEEN INFLUENCED
BY JEAN'S VIEWPOINTS AND THAT HE HAD RECEIVED IMPRESSIONS DEFINITE THAT
IT WAS YOUR WIFE WHO WAS PARLOR PINK AND THAT YOU WERE GOING ALONG WITH
HER. 

     *         *         *         *         * 

"Q.  THIS SAME FRIEND TESTIFIED THAT HE BELIEVED THAT YOU WERE
INFLUENCED BY JEAN'S WILD THEORIES AND HE DECIDED AT THAT TIME TO HAVE
NO FURTHER ASSOCIATION WITH YOU AND YOUR WIFE  ...  . 

     *         *   *         *         * 

"Q.  ...  HERE'S ANOTHER MAN WHO INDICATES THAT HE HAS BEEN A FRIEND
OF YOURS OVER A LONG PERIOD OF TIME WHO STATES THAT HE WAS A VISITOR IN
YOUR HOME ON OCCASIONS AND THAT REGARDING SOME OF THESE VISITS, HE MET
SOME OF YOUR WIFE'S FRIENDS, THESE PEOPLE WE'VE BEEN TALKING ABOUT IN
THE PAST AND THAT ONE OCCASION, HE MENTIONED IN PARTICULAR, THE TOPIC
OF CONVERSATION WAS CHINA AND THAT YOU SET FORTH IN THE CONVERSATION
AND THERE SEEMED GENERAL AGREEMENT AMONG ALL OF YOU AT THAT TIME THAT
THE REVOLUTIONISTS IN CHINA WERE NOT ACTUALLY COMMUNISTS BUT WERE
AGRARIAN REFORMISTS WHICH AS YOU PROBABLY KNOW IS PART OF THE COMMUNIST
PROPAGANDA LINE OF SEVERAL YEARS BACK  ...  . 

     *         *         *         *         * 

"Q.  MR. GREENE WE'VE GOT SOME INFORMATION HERE INDICATING THAT
DURING THE PERIOD OF YOUR MARRIAGE TO YOUR FIRST WIFE THAT SHE WAS
CONSTANTLY FINDING FAULT WITH THE AMERICAN INSTITUTIONS, OPPOSING THE
AMERICAN CAPITALISTIC SYSTEM AND NEVER HAD ANYTHING BUT PRAISE FOR THE
RUSSIANS AND EVERYTHING THEY ATTEMPTED TO DO.  DID YOU FIND THAT TO BE
THE CASE? 

     * *         *         *         * 

"Q.  WE HAVE A STATEMENT HERE FROM ANOTHER WITNESS WITH RESPECT TO
YOURSELF IN WHICH HE STATES THAT YOU FELT THAT THE MODERN PEOPLE IN
THIS COUNTRY WERE TOO RICH AND POWERFUL, THAT THE CAPITALISTIC SYSTEM
OF THIS COUNTRY WAS TO THE DISADVANTAGE OF THE WORKING PEOPLE AND THAT
THE WORKING PEOPLE WERE EXPLOITED BY THE RICH. 

     *   *         *         *         * 

"Q.  I HAVE A STATEMENT FROM ANOTHER ONE OF YOUR ASSOCIATES TO THE
EFFECT THAT YOU WOULD AT TIMES, PRESENT TO HIM A FELLOW-TRAVELER
ARGUMENT.  THIS MAN INDICATED TO US THAT HE WAS PRETTY WELL VERSED ON
THE COMMUNIST PARTY LINE HIMSELF AT THAT TIME AND FOUND YOU PARROTING
ARGUMENTS WHICH HE ASSUMED THAT YOU GOT FROM YOUR WIFE.  DO YOU WISH TO
COMMENT ON THAT?" 

CONFRONTATION OF THE PERSONS WHO ALLEGEDLY MADE THESE STATEMENTS
WOULD HAVE BEEN OF PRIME IMPORTANCE TO PETITIONER, FOR CROSS
EXAMINATION MIGHT HAVE SHOWN THAT THESE "WITNESSES" WERE HAZY IN
RECOLLECTING LONG-PAST INCIDENTS, OR WERE IRRATIONALLY MOTIVATED BY
BIAS OR VINDICTIVENESS. 

FN27  THIS IS MADE CLEAR BY THE FOLLOWING TESTIMONY OF JEROME D.
FENTON, DIRECTOR, INDUSTRIAL PERSONNEL SECURITY, DEPARTMENT OF DEFENSE,
BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE
JUDICIARY COMMITTEE, GIVEN ON NOVEMBER 23, 1955: 

"Q.  ...  WHAT OTHER TYPE OF EVIDENCE IS RECEIVED BY THE HEARING
BOARDS BESIDES THE EVIDENCE OF PERSONS UNDER OATH? 

"A.  THE REPORTS FROM THE VARIOUS GOVERNMENTAL INVESTIGATIVE
AGENCIES. 

"Q.  AND THE REPORTS OF THE VARIOUS GOVERNMENTAL INVESTIGATIONS
MIGHT, THEMSELVES, BE HEARSAY, MIGHT THEY NOT? 

"A.  I THINK THAT IS A FAIR STATEMENT. 

"Q.  IN FACT, THEY MIGHT BE, AS THE COURT OF APPEALS FOR THE NINTH
CIRCUIT SAID WITH RESPECT TO THE PORT SECURITY PROGRAM, SECOND, OR
THIRD, OR FOURTH-HAND HEARSAY, MIGHT THEY NOT?  (THIS QUESTION REFERS
TO THE OPINION OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN PARKER
V. LESTER, 227 F.2D 708.) 

     *         *         *  *         * 

"A.  THE ANSWER IS 'YES.' 

     *  *         *         *         * 

"Q.  CAN YOU TELL ME WHAT TYPE OF HELP IS GIVEN TO THE HEARING BOARD
IN THESE REPORTS WITH RESPECT TO THE MATTER OF EVALUATION?  WHAT IS THE
NATURE OF THE EVALUATION THAT IS USED FOR THIS PURPOSE? 

"A.  WELL, EACH BOARD HAS A PERSON WHO IS CALLED A SECURITY ADVISER,
WHO IS AN EXPERT IN THAT PARTICULAR AREA.  EACH SCREENING BOARD HAS
ONE, AND THOSE INDIVIDUALS ARE WELL-TRAINED PEOPLE WHO KNOW HOW TO
EVALUATE REPORTS AND EVALUATE INFORMATION.  THEY KNOW HOW TO SEPARATE
THE WHEAT FROM THE CHAFF, AND THEY ASSIST THESE BOARDS. 

"Q.  THIS EXPERT, THEN, HAS TO TAKE THE REPORT AND MAKE HIS OWN
DETERMINATION IN ASSISTING THE BOARD AS TO THE RELIABILITY OF A WITNESS
THAT HE HAS NEVER SEEN, OR PERHAPS HASN'T EVEN HAD THE OPPORTUNITY TO
SEE THE PERSON WHO INTERVIEWED THE WITNESS? 

"A.  WELL, HE HAS NOTHING TO DO WITH THE WITNESS; NO. 

"Q.  WHAT IS THAT? 

"A.  HE HAS NOT INTERVIEWED THE WITNESS; NO." 

HEARINGS BEFORE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS, SENATE
JUDICIARY COMMITTEE, ON S. RES.  94, 84TH CONG., 2D SESS. 623-624.  AND
CF. RICHARDSON, THE FEDERAL EMPLOYEE LOYALTY PROGRAM, 51 COL. L. REV.
546, AND HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE FOREIGN RELATIONS
COMMITTEE ON S. RES. 231, 81ST CONG., 2D SESS. 327-339 (STATEMENT OF J.
EDGAR HOOVER, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION). 

FN28  NO BETTER, FOR THIS PURPOSE, IS EXEC. ORDER NO. 8972, 6 FED.
REG. 6420, FILED ON DECEMBER 12, 1941, WHICH EMPOWERED THE SECRETARY OF
WAR "TO ESTABLISH AND MAINTAIN MILITARY GUARDS AND PATROLS, AND TO TAKE
OTHER APPROPRIATE MEASURES, TO PROTECT FROM INJURY OR DESTRUCTION
NATIONAL-DEFENSE MATERIAL, NATIONAL-DEFENSE PREMISES, AND NATIONAL
DEFENSE UTILITIES  ...  ."  EVEN IF THAT ORDER IS RELEVANT AUTHORITY
FOR PROGRAMS CREATED AFTER WORLD WAR II, WHICH IS DOUBTFUL, IT PROVIDES
NO SPECIFIC AUTHORIZATION FOR NON-CONFRONTATION HEARINGS. 

FN29  AS FAR AS APPEARS, THE MOST SUBSTANTIAL OFFICIAL NOTICE WHICH
CONGRESS HAD OF THE NON-CONFRONTATION PROCEDURES USED IN SCREENING
INDUSTRIAL WORKERS WAS EMBODIED IN S. DOC.  NO. 40, 84TH CONG., 1ST
SESS., A 354-PAGE COMPILATION OF LAWS, EXECUTIVE ORDERS, AND
REGULATIONS RELATING TO INTERNAL SECURITY, PRINTED AT THE REQUEST OF A
SINGLE SENATOR, WHICH REPRODUCED, AMONG OTHER DOCUMENTS AND WITHOUT
SPECIFIC COMMENT, THE INDUSTRIAL PERSONNEL SECURITY REVIEW REGULATION. 

FN30  AT THE HEARINGS TO WHICH WE HAVE BEEN REFERRED, THE FOLLOWING
PASSAGE FROM THE TESTIMONY OF THE DEPARTMENT OF DEFENSE REPRESENTATIVE
CONSTITUTES THE ONLY DESCRIPTION MADE TO THE COMMITTEE CONCERNING THE
PROCEDURES USED IN THE DEPARTMENT'S CLEARANCE PROGRAM: 

"IN CONNECTION WITH THE PROCUREMENT PROGRAMS OF THE DEPARTMENT OF
DEFENSE, REGULATIONS HAVE BEEN PRESCRIBED TO PROVIDE UNIFORM STANDARDS
AND CRITERIA FOR DETERMINING THE ELIGIBILITY OF CONTRACTORS, CONTRACTOR
EMPLOYEES, AND CERTAIN OTHER INDIVIDUALS, TO HAVE ACCESS TO CLASSIFIED
DEFENSE INFORMATION.  THE REGULATIONS ALSO ESTABLISH ADMINISTRATIVE
PROCEDURES GOVERNING THE DISPOSITION OF CASES IN WHICH A MILITARY
DEPARTMENT, OR ACTIVITY THEREOF, HAS MADE A RECOMMENDATION OR
DETERMINATION (A) WITH RESPECT TO THE DENIAL, SUSPENSION, OR REVOCATION
OF A CLEARANCE OF A CONTRACTOR OR CONTRACTOR EMPLOYEE; AND (B) WITH
RESPECT TO THE DENIAL OR WITHDRAWAL OF AUTHORIZATION FOR ACCESS BY
CERTAIN OTHER INDIVIDUALS.    "WHILE THE DEPARTMENT OF DEFENSE ASSUMES,
UNLESS INFORMATION TO THE CONTRARY IS RECEIVED, THAT ALL CONTRACTORS
AND CONTRACTOR EMPLOYEES ARE LOYAL TO THE GOVERNMENT OF THE UNITED
STATES, THE RESPONSIBILITIES OF THE MILITARY ESTABLISHMENT NECESSITATE
VIGOROUS APPLICATION OF POLICIES DESIGNED TO MINIMIZE THE SECURITY RISK
INCIDENT TO THE USE OF CLASSIFIED INFORMATION BY SUCH CONTRACTORS AND
CONTRACTOR EMPLOYEES.  ACCORDINGLY, MEASURES ARE TAKEN TO PROVIDE
CONTINUING ASSURANCE THAT NO CONTRACTOR OR CONTRACTOR EMPLOYEE WILL BE
GRANTED A CLEARANCE IF AVAILABLE INFORMATION INDICATES THAT THE
GRANTING OF SUCH CLEARANCE MAY NOT BE CLEARLY CONSISTENT WITH THE
INTERESTS OF NATIONAL SECURITY.  AT THE SAME TIME, EVERY POSSIBLE
SAFEGUARD WITHIN THE LIMITATIONS OF NATIONAL SECURITY WILL BE PROVIDED
TO ENSURE THAT NO CONTRACTOR OR CONTRACTOR EMPLOYEE WILL BE DENIED A
CLEARANCE WITHOUT AN OPPORTUNITY FOR A FAIR HEARING."  ID., AT 774. 

THIS DESCRIPTION HARDLY CONSTITUTES EVEN NOTICE TO THE COMMITTEE OF
THE NATURE OF THE HEARINGS AFFORDED.  THUS THE APPROPRIATION COULD NOT
"PLAINLY SHOW A PURPOSE TO BESTOW THE PRECISE AUTHORITY WHICH IS
CLAIMED."  EX PARTE ENDO, 323 U.S. 283, 303, N. 24.  LIKEWISE,
APPROPRIATIONS OF SPECIFIC AMOUNTS FOR THE MUNITIONS BOARD OR ITS
SUCCESSORS, AGENCIES WITH MULTIFOLD OBJECTIVES, WITHOUT ANY MENTION OF
THE USES TO WHICH THE FUNDS COULD BE PUT, CANNOT BE CONSIDERED AS A
RATIFICATION OF THE USE OF THE SPECIFIED HEARING PROCEDURES. 

FN31  IT IS ESTIMATED THAT APPROXIMATELY THREE MILLION PERSONS HAVING
ACCESS TO CLASSIFIED INFORMATION ARE COVERED BY THE INDUSTRIAL SECURITY
PROGRAM.  BROWN, LOYALTY AND SECURITY (1958), 179-180; ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK, REPORT OF THE SPECIAL COMMITTEE ON THE
FEDERAL LOYALTY-SECURITY PROGRAM (1956), 64. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER
CONCUR IN THE JUDGMENT ON THE GROUND THAT IT HAS NOT BEEN SHOWN THAT
EITHER CONGRESS OR THE PRESIDENT AUTHORIZED THE PROCEDURES WHEREBY
PETITIONER'S SECURITY CLEARANCE WAS REVOKED, INTIMATING NO VIEWS AS TO
THE VALIDITY OF THOSE PROCEDURES. 

MR. JUSTICE HARLAN, CONCURRING SPECIALLY. 

WHAT HAS BEEN WRITTEN ON BOTH SIDES OF THIS CASE MAKES APPROPRIATE A
FURTHER WORD FROM ONE WHO CONCURS IN THE JUDGMENT OF THE COURT, BUT
CANNOT JOIN ITS OPINION. 

UNLIKE MY BROTHER CLARK WHO FINDS THIS CASE "BOTH CLEAR AND SIMPLE,"
I CONSIDER THE CONSTITUTIONAL ISSUE IT PRESENTS MOST DIFFICULT AND FAR
REACHING.  IN MY VIEW THE COURT QUITE PROPERLY DECLINES TO DECIDE IT IN
THE PRESENT POSTURE OF THE CASE.  MY UNWILLINGNESS TO SUBSCRIBE TO THE
COURT'S OPINION IS DUE TO THE FACT THAT IT UNNECESSARILY DEALS WITH THE
VERY ISSUE IT DISCLAIMS DECIDING.  FOR PRESENT PURPOSES NO MORE NEED BE
SAID THAN THAT WE SHOULD NOT BE DRAWN INTO DECIDING THE
CONSTITUTIONALITY OF THE SECURITY-CLEARANCE REVOCATION PROCEDURES
EMPLOYED IN THIS CASE UNTIL THE USE OF SUCH PROCEDURES IN MATTERS OF
THIS KIND HAS BEEN DELIBERATELY CONSIDERED AND EXPRESSLY AUTHORIZED BY
THE CONGRESS OR THE PRESIDENT WHO ALONE ARE IN A POSITION TO EVALUATE
IN THE FIRST INSTANCE THE TOTALITY OF FACTORS BEARING UPON THE
NECESSITY FOR THEIR USE.  THAT MUCH THE COURTS ARE ENTITLED TO BEFORE
THEY ARE ASKED TO EXPRESS A CONSTITUTIONAL JUDGMENT UPON AN ISSUE
FRAUGHT WITH SUCH IMPORTANT CONSEQUENCES BOTH TO THE GOVERNMENT AND THE
CITIZEN. 

AMPLE JUSTIFICATION FOR ABSTAINING FROM A CONSTITUTIONAL DECISION AT
THIS STAGE OF THE CASE IS AFFORDED BY THE COURT'S TRADITIONAL AND WISE
RULE OF NOT REACHING CONSTITUTIONAL ISSUES UNNECESSARILY OR
PREMATURELY.  THAT RULE INDEED HAS BEEN CONSISTENTLY FOLLOWED BY THIS
COURT WHEN FACED WITH "CONFRONTATION" ISSUES IN OTHER SECURITY OR
LOYALTY CASES.  SEE PETERS V. HOBBY, 349 U.S. 331; VITARELLI V. SEATON,
359 U.S. 535; CF. SERVICE V. DULLES, 354 U.S. 363; KENT V. DULLES, 357
U.S. 116.  ADHERENCE TO THAT RULE IS, AS I UNDERSTAND IT, THE
UNDERLYING BASIS OF TODAY'S DECISION, AND IT IS ON THAT BASIS THAT I
JOIN THE JUDGMENT OF THE COURT. 

IT IS REGRETTABLE THAT MY BROTHER CLARK SHOULD HAVE SO FAR YIELDED TO
THE TEMPTATIONS OF COLORFUL CHARACTERIZATION AS TO DEPICT THE ISSUE IN
THIS CASE AS BEING WHETHER A CITIZEN HAS "A CONSTITUTIONAL RIGHT TO
HAVE ACCESS TO THE GOVERNMENT'S MILITARY SECRETS," AND TO SUGGEST THAT
THE COURT'S ACTION TODAY REQUIRES "THE PRESIDENT'S CABINET MEMBERS TO
REVOKE THEIR REFUSAL TO GIVE" THE PETITIONER "ACCESS TO MILITARY
SECRETS," DESPITE ANY VIEWS THEY MAY HAVE AS TO HIS RELIABILITY.  OF
COURSE THIS DECISION INVOLVES NO SUCH ISSUE OR CONSEQUENCES.  THE BASIC
CONSTITUTIONAL ISSUE IS NOT WHETHER PETITIONER IS ENTITLED TO ACCESS TO
CLASSIFIED MATERIAL, BUT RATHER WHETHER THE PARTICULAR PROCEDURES HERE
EMPLOYED TO DENY CLEARANCE ON SECURITY GROUNDS WERE CONSTITUTIONALLY
PERMISSIBLE.  WITH GOOD REASON WE DO NOT REACH THAT ISSUE AS MATTERS
NOW STAND.  AND CERTAINLY THERE IS NOTHING IN THE COURT'S OPINION WHICH
SUGGESTS THAT PETITIONER MUST BE GIVEN ACCESS TO CLASSIFIED MATERIAL. 

MR. JUSTICE CLARK, DISSENTING. 

TO ME THIS CASE IS BOTH CLEAR AND SIMPLE.  THE RESPONDENTS, ALL
MEMBERS OF THE PRESIDENT'S CABINET, HAVE, AFTER A SERIES OF HEARINGS,
REFUSED TO GIVE GREENE FURTHER ACCESS TO CERTAIN GOVERNMENT MILITARY
INFORMATION WHICH HAS BEEN CLASSIFIED "SECRET."  THE PERTINENT
EXECUTIVE ORDER DEFINES "SECRET" INFORMATION AS: 

"DEFENSE INFORMATION OR MATERIAL THE UNAUTHORIZED DISCLOSURE OF WHICH
COULD RESULT IN SERIOUS DAMAGE TO THE NATION, SUCH AS BY JEOPARDIZING
THE INTERNATIONAL RELATIONS OF THE UNITED STATES, ENDANGERING THE
EFFECTIVENESS OF A PROGRAM OR POLICY OF VITAL IMPORTANCE TO THE
NATIONAL DEFENSE, OR COMPROMISING IMPORTANT MILITARY OR DEFENSE PLANS,
SCIENTIFIC OR TECHNOLOGICAL DEVELOPMENTS IMPORTANT TO NATIONAL DEFENSE,
OR INFORMATION REVEALING IMPORTANT INTELLIGENCE OPERATIONS."  EXEC.
ORDER NO. 10501, NOV. 5, 1953, 18 FED. REG. 7049, 3 CFR (1949-1953
COMP.), P. 979, SEC. 1(B). 

SURELY ONE DOES NOT HAVE A CONSTITUTIONAL RIGHT TO HAVE ACCESS TO THE
GOVERNMENT'S MILITARY SECRETS.  (FN1)  BUT THE COURT SAYS THAT BECAUSE
OF THE REFUSAL TO GRANT GREENE FURTHER ACCESS, HE HAS LOST HIS POSITION
AS VICE PRESIDENT AND GENERAL MANAGER, A CHIEF EXECUTIVE OFFICER, OF
ERCO, WHOSE BUSINESS WAS DEVOTED WHOLLY TO DEFENSE CONTRACTS WITH THE
UNITED STATES, (FN2) AND THAT HIS TRAINING IN AERONAUTICAL ENGINEERING,
TOGETHER WITH THE FACTS THAT ERCO ENGAGES SOLELY IN GOVERNMENT WORK AND
THAT THE GOVERNMENT IS THE COUNTRY'S LARGEST AIRPLANE CUSTOMER, HAS IN
SOME UNACCOUNTABLE FASHION PARLAYED HIS EMPLOYMENT WITH ERCO INTO "A
CONSTITUTIONAL RIGHT."  WHAT FOR ANYONE ELSE WOULD BE CONSIDERED A
PRIVILEGE AT BEST HAS FOR GREENE BEEN ENSHROUDED IN CONSTITUTIONAL
PROTECTION.  THIS SLEIGHT OF HAND IS TOO MUCH FOR ME. 

BUT THIS IS NOT ALL.  AFTER HOLDING THAT GREENE HAS CONSTITUTIONAL
PROTECTION FOR HIS PRIVATE JOB, THE COURT HAS ORDERED THE PRESIDENT'S
CABINET MEMBERS TO REVOKE THEIR REFUSAL TO GIVE GREENE ACCESS TO
MILITARY SECRETS.  (FN3)  IT STRIKES DOWN THE PRESENT REGULATIONS AS
BEING INSUFFICIENTLY AUTHORIZED BY EITHER THE PRESIDENT OR THE CONGRESS
BECAUSE THE PROCEDURES FAIL TO PROVIDE FOR CONFRONTATION OR CROSS
EXAMINATION AT BOARD HEARINGS.  LET US FIRST CONSIDER THAT PROBLEM. 

                                I. THE CONSTITUTIONAL ISSUE. 

AFTER FULL CONSIDERATION THE COURT CONCLUDES "THAT IN THE ABSENCE OF
EXPLICIT AUTHORIZATION FROM EITHER THE PRESIDENT OR CONGRESS THE
RESPONDENTS WERE NOT EMPOWERED TO DEPRIVE PETITIONER OF HIS JOB IN A
PROCEEDING IN WHICH HE WAS NOT AFFORDED THE SAFEGUARDS OF CONFRONTATION
AND CROSS-EXAMINATION."   IN SO DOING, AS I SHALL POINT OUT, IT HOLDS
FOR NAUGHT THE EXECUTIVE ORDERS OF BOTH PRESIDENT ROOSEVELT AND
PRESIDENT TRUMAN AND THE DIRECTIVES PURSUANT THERETO OF EVERY CABINET
OFFICER CONNECTED WITH OUR DEFENSE SINCE 1942 PLUS THE EXPLICIT ORDER
OF GENERAL DWIGHT D. EISENHOWER AS CHIEF OF STAFF IN 1946.  IN
ADDITION, CONTRARY TO THE COURT'S CONCLUSION, THE CONGRESS WAS NOT ONLY
FULLY INFORMED BUT HAD ITSELF PUBLISHED THE VERY PROCEDURES USED IN
GREENE'S CASE. 

I BELIEVE THAT THE COURT IS IN ERROR IN HOLDING, AS IT MUST, IN ORDER
TO REACH THIS "AUTHORIZATION" ISSUE, THAT GREENE'S "RIGHT TO HOLD
SPECIFIC PRIVATE EMPLOYMENT AND TO FOLLOW A CHOSEN PROFESSION FREE FROM
UNREASONABLE GOVERNMENTAL INTERFERENCE" IS PROTECTED BY THE FIFTH
AMENDMENT.  IT CITES FOUR CASES IN SUPPORT OF THIS PROPOSITION AND SAYS
COMPARE FOUR OTHERS.  AS I READ THOSE CASES NOT ONE IS IN POINT.  (FN4)
IN FACT, I CANNOT FIND A SINGLE CASE IN SUPPORT OF THE COURT'S
POSITION.  EVEN A SUIT FOR DAMAGES ON THE GROUND OF INTERFERENCE WITH
PRIVATE CONTRACTS DOES NOT LIE AGAINST THE GOVERNMENT.  THE CONGRESS
SPECIFICALLY EXEMPTED SUCH SUITS FROM THE TORT CLAIMS ACT.  28 U.S.C.
SEC. 2680(H).  BUT THE ACTION TODAY MAY HAVE THE EFFECT OF BY-PASSING
THAT EXEMPTION SINCE GREENE WILL NOW CLAIM, AS HAS VITARELLI, SEE
VITARELLI V. SEATON, 359 U.S. 535 (1959), REIMBURSEMENT FOR HIS LOSS OF
WAGES.  SEE TAYLOR V. MCELROY, POST, P. 709.  THIS WILL DATE BACK TO
1953.  HIS SALARY AT THAT TIME WAS $18,000 A YEAR. 

IN HOLDING THAT THE FIFTH AMENDMENT PROTECTS GREENE THE COURT IGNORES
THE BASIC CONSIDERATION IN THE CASE, NAMELY, THAT NO PERSON, SAVE THE
PRESIDENT, HAS A CONSTITUTIONAL RIGHT TO ACCESS TO GOVERNMENTAL
SECRETS.  EVEN THOUGH SUCH ACCESS IS NECESSARY FOR ONE TO KEEP A JOB IN
PRIVATE INDUSTRY, HE IS STILL NOT ENTITLED TO THE SECRETS.  IT MATTERS
NOT IF AS A CONSEQUENCE HE IS UNABLE TO SECURE A SPECIFIC JOB OR LOSES
ONE HE PRESENTLY ENJOYS.  THE SIMPLE REASON FOR THIS CONCLUSION IS THAT
HE HAS NO CONSTITUTIONAL RIGHT TO THE SECRETS.  IF ACCESS TO ITS
SECRETS IS GRANTED BY THE GOVERNMENT IT IS ENTIRELY PERMISSIVE AND MAY
BE REVOKED AT ANY TIME.  THAT IS ALL THAT THE CABINET OFFICERS DID
HERE.  IT IS DONE EVERY DAY IN GOVERNMENTAL OPERATION.  THE COURT SEEMS
TO HOLD THAT THE ACCESS GRANTED GREENE WAS FOR HIS BENEFIT.  IT WAS
NOT.  ACCESS WAS GRANTED TO SECURE FOR THE GOVERNMENT THE SUPPLIES OR
SERVICES IT NEEDED.  THE CONTRACT WITH ERCO SPECIFICALLY PROVIDED FOR
THE ACTION TAKEN BY THE CABINET OFFICERS.  GREENE AS GENERAL MANAGER OF
ERCO KNEW OF ITS PROVISIONS.  IF EVERY PERSON WORKING ON GOVERNMENT
CONTRACTS HAS THE RIGHTS GREENE IS GIVEN HERE THE GOVERNMENT IS INDEED
IN A BOX.  BUT AS WAS SAID IN PERKINS V. LUKENS STEEL CO., 310 U.S.
113, 127-128 (1940): 

"LIKE PRIVATE INDIVIDUALS AND BUSINESSES, THE GOVERNMENT ENJOYS THE
UNRESTRICTED POWER TO PRODUCE ITS OWN SUPPLIES, TO DETERMINE THOSE WITH
WHOM IT WILL DEAL, AND TO FIX THE TERMS AND CONDITIONS UPON WHICH IT
WILL MAKE NEEDED PURCHASES  ...  .  JUDICIAL RESTRAINT OF THOSE WHO
ADMINISTER THE GOVERNMENT'S PURCHASING WOULD CONSTITUTE A BREAK WITH
SETTLED JUDICIAL PRACTICE AND A DEPARTURE INTO FIELDS HITHERTO WISELY
AND HAPPILY APPORTIONED BY THE GENIUS OF OUR POLITY TO THE
ADMINISTRATION OF ANOTHER BRANCH OF GOVERNMENT." 

THE COURT REFUSES TO PASS ON THE CONSTITUTIONALITY OF THE PROCEDURES
USED IN THE HEARINGS.  IT DOES SAY THAT THE HEARINGS PROVIDED FOR IN
THE PROGRAM PERMIT THE RESTRAINT OF "EMPLOYMENT OPPORTUNITIES THROUGH A
DENIAL OF CLEARANCE WITHOUT THE SAFEGUARDS OF CONFRONTATION AND CROSS
EXAMINATION."  I THINK THE COURT CONFUSES ADMINISTRATIVE ACTION WITH
JUDICIAL TRIALS.  THIS COURT HAS LONG AGO AND REPEATEDLY APPROVED
ADMINISTRATIVE ACTION WHERE THE RIGHTS OF CROSS-EXAMINATION AND
CONFRONTATION WERE NOT PERMITTED.  CHICAGO & SOUTHERN AIR LINES V.
WATERMAN CORP., 333 U.S. 103 (1948); CARLSON V. LANDON, 342 U.S. 524
(1952); UNITED STATES V. NUGENT, 346 U.S. 1 (1953); UNITED STATES V.
REYNOLDS, 345 U.S. 1 (1953); KNAUFF V. SHAUGHNESSY, 338 U.S. 537
(1950); SHAUGHNESSY V. MEZEI, 345 U.S. 206 (1953); AND JAY V. BOYD, 351
U.S. 345 (1956). 

AT NO TIME SINCE THE PROGRAMS NOW IN VOGUE WERE ESTABLISHED IN 1942
HAVE THE RIGHTS OF CROSS-EXAMINATION AND CONFRONTATION OF WITNESSES
BEEN REQUIRED.  IN FACT THE PRESENT REGULATIONS WERE PATTERNED AFTER
THE EMPLOYEE LOYALTY PROGRAM, FIRST INAUGURATED UPON THE PASSAGE OF THE
HATCH ACT IN 1939, IN WHICH THE RIGHTS OF CONFRONTATION AND CROSS
EXAMINATION HAVE NEVER BEEN RECOGNIZED.  EVERY ATTORNEY GENERAL SINCE
THAT TIME HAS APPROVED THESE PROCEDURES, AS HAS EVERY PRESIDENT.  AND
IT SHOULD BE NOTED, THOUGH SEVERAL CASES HERE HAVE ATTACKED THE
REGULATIONS ON THIS GROUND, THIS COURT HAS YET TO STRIKE THEM DOWN. 
(FN5) 

I SHALL NOT LABOR THE POINT FURTHER THAN TO SAY THAT IN MY OPINION
THE PROCEDURES HERE DO COMPORT WITH THAT FAIRNESS REQUIRED OF
ADMINISTRATIVE ACTION IN THE SECURITY FIELD.  A SCORE OF OUR CASES, AS
I HAVE CITED, SUPPORT ME IN THIS POSITION.  NOT ONE IS TO THE
CONTRARY.  AND THE ACTION OF THE COURT IN STRIKING DOWN THE PROGRAM FOR
LACK OF SPECIFIC AUTHORIZATION IS INDEED STRANGE, AND HARD FOR ME TO
UNDERSTAND AT THIS CRITICAL TIME OF NATIONAL EMERGENCY.  THE DEFENSE
ESTABLISHMENT SHOULD KNOW - AND NOW - WHETHER ITS PROGRAM IS
CONSTITUTIONAL AND, IF NOT, WHEREIN IT IS DEFICIENT.  I AM SURE THAT IT
WILL REMEMBER THAT IN OTHER TIMES OF EMERGENCY - NO MORE GRAVE THAN THE
PRESENT - IT WAS PERMITTED, WITHOUT ANY HEARING WHATSOEVER - MUCH LESS
WITH CONFRONTATION AND CROSS-EXAMINATION - TO REMOVE AMERICAN CITIZENS
FROM THEIR HOMES ON THE WEST COAST AND PLACE THEM IN CONCENTRATION
CAMPS.  SEE HIRABAYASHI V. UNITED STATES, 320 U.S. 81 (1943); KOREMATSU
V. UNITED STATES, 323 U.S. 214 (1944).  MY EXAMINATION OF THE JAPANESE
EXCLUSION ORDERS INDICATES CLEARLY THAT THE EXECUTIVE ORDER WAS A
GENERAL AUTHORIZATION JUST AS THE TWO HERE.  CONGRESS AT THE TIME ONLY
CREATED CRIMINAL OFFENSES FOR VIOLATION OF EXCLUSION OR CURFEW ORDERS
OF THE MILITARY COMMANDER.  LIKEWISE WE HAVE CRIMINAL STATUTES HERE. 
AND WHILE THE JAPANESE ORDERS WERE IN TIME OF WAR, THOSE INVOLVED HERE
HAD THEIR INCEPTION IN WAR AND HAVE BEEN CONTINUED DURING THE NATIONAL
EMERGENCY DECLARED BY THE PRESIDENT.  NO ONE INFORMED IN PRESENT WORLD
AFFAIRS WOULD SAY THAT OUR SAFETY IS LESS IN JEOPARDY TODAY.  IN FACT
WE ARE NOW SPENDING NEARLY AS MUCH MONEY TO PROTECT IT AS DURING THE
WAR PERIOD.  IN THIS LIGHT IT IS INESCAPABLE THAT THE EXISTING
AUTHORIZATIONS ARE ENTIRELY SUFFICIENT.  LET US EXAMINE THEM. 
            II.  THE PRESIDENT AND THE CONGRESS HAVE GRANTED

     SUFFICIENT AUTHORITY TO THE CABINET OFFICERS. 

SINCE 1941 THE INDUSTRIAL SECURITY PROGRAM HAS BEEN IN OPERATION
UNDER EXPRESS DIRECTIVES FROM THE PRESIDENT.  WITHIN A WEEK AFTER THE
ATTACK ON PEARL HARBOR, PRESIDENT ROOSEVELT ISSUED EXEC. ORDER NO.
8972, 6 FED. REG. 6420, DEC. 12, 1941, WHICH AUTHORIZED BOTH THE
SECRETARY OF WAR AND THE SECRETARY OF THE NAVY "TO ESTABLISH AND
MAINTAIN MILITARY GUARDS AND PATROLS, AND TO TAKE OTHER APPROPRIATE
MEASURES, TO PROTECT FROM INJURY AND DESTRUCTION NATIONAL-DEFENSE
MATERIAL, NATIONAL-DEFENSE PREMISES, AND NATIONAL-DEFENSE UTILITIES
...  ."  IN 1942, UNDER THE AUTHORITY OF THAT EXECUTIVE ORDER, THE
SECRETARY OF WAR UNDERTOOK THE FORMULATION AND EXECUTION OF A PROGRAM
OF INDUSTRIAL SECURITY.  (FN6)  THE PROCEDURES IN OPERATION FROM 1942
AND 1943 ARE OUTLINED IN A 1946 PUBLICATION OF THE DEPARTMENT OF WAR
ENTITLED "SUSPENSION OF SUBVERSIVES FROM PRIVATELY OPERATED FACILITIES
OF IMPORTANCE TO THE SECURITY OF THE NATION'S ARMY AND NAVY PROGRAMS." 
(FN7) INTERESTINGLY ENOUGH, THE INSTRUCTIONS WERE ISSUED IN TIME OF
PEACE, DID NOT GIVE THE SUSPECT A HEARING, AND WERE SIGNED BY THE THEN
CHIEF OF STAFF - NOW PRESIDENT - DWIGHT D. EISENHOWER. 

IN 1947, THE NATIONAL SECURITY ACT, 61 STAT. 495, EFFECTED A
REORGANIZATION OF THE MILITARY DEPARTMENTS AND PLACED THE SECRETARY OF
DEFENSE AT THE HEAD OF THE NATIONAL MILITARY ESTABLISHMENT.  SECTION
305(A) OF THE ACT TRANSFERRED TO THE NEW ORGANIZATION "ALL LAWS,
ORDERS, REGULATIONS, AND OTHER ACTIONS APPLICABLE WITH RESPECT TO ANY
FUNCTION  ...  TRANSFERRED UNDER THIS ACT  ...  ."  SECTION 213 CREATED
A MUNITIONS BOARD WITH THE MILITARY ESTABLISHMENT AND UNDER THE
SUPERVISION OF THE SECRETARY OF DEFENSE.  AMONG ITS FUNCTIONS WERE: 

"(1) TO COORDINATE THE APPROPRIATE ACTIVITIES WITHIN THE NATIONAL
MILITARY ESTABLISHMENT WITH REGARD TO INDUSTRIAL MATTERS, INCLUDING
PROCUREMENT  ...  PLANS  ...  ; (2) TO PLAN FOR THE MILITARY ASPECTS OF
INDUSTRIAL MOBILIZATION; ...  AND (10) TO PERFORM SUCH OTHER DUTIES AS
THE SECRETARY OF DEFENSE MAY DIRECT."  (FN8) 

IN HIS FIRST REPORT TO THE PRESIDENT IN 1948, SECRETARY OF DEFENSE
FORRESTAL REPORTED THAT: 

"  ...  THE MUNITIONS BOARD IS RESPONSIBLE FOR NECESSARY ACTION TO
COORDINATE INTERNAL SECURITY WITHIN THE NATIONAL MILITARY ESTABLISHMENT
WITH REGARD TO INDUSTRIAL MATTERS.  THIS WORK IS BEING PLANNED AND IN
SOME PHASES CARRIED FORWARD BY THE FOLLOWING PROGRAMS: 

     *     *         *         *         * 

"C.  DEVELOPMENT OF PLANS AND DIRECTIVES TO PROTECT CLASSIFIED ARMED
FORCES INFORMATION IN THE HANDS OF INDUSTRY FROM POTENTIAL ENEMIES. 

"D.  ESTABLISHMENT OF UNIFORM METHODS OF HANDLING OF PERSONNEL
CLEARANCES AND SECRECY AGREEMENTS ...  ."  FIRST REPORT OF THE
SECRETARY OF DEFENSE (1948) 102-103. 

THE FORERUNNER OF THE EXACT PROGRAM NOW IN EFFECT WAS PUT IN
OPERATION IN 1948 UNDER THE SUPERVISION OF THAT BOARD.  AND, IN THE
ANNUAL REPORT TO THE PRESIDENT, IN 1949, THE SECRETARY, THEN LOUIS
JOHNSON, REPORTED THAT: 

"INDUSTRIAL SECURITY.  - A PROGRAM TO COORDINATE AND DEVELOP UNIFORM
PRACTICES TO PROTECT CLASSIFIED MILITARY INFORMATION PLACED IN THE
HANDS OF INDUSTRY UNDER PROCUREMENT AND RESEARCH CONTRACTS WAS
CONTINUED BY THE MUNITIONS BOARD.  CRITERIA WERE DEVELOPED FOR THE
GRANTING OR DENIAL OF PERSONNEL AND FACILITY CLEARANCES IN THE
PERFORMANCE OF CLASSIFIED CONTRACTS.  WORK WAS STARTED TO ESTABLISH A
CENTRAL SECURITY CLEARANCE REGISTER TO CENTRALIZE CLEARANCE DATA FOR
READY REFERENCE BY ALL DEPARTMENTS AND TO PREVENT DUPLICATION IN MAKING
CLEARANCE INVESTIGATIONS.  A JOINT PERSONNEL SECURITY BOARD ADMINISTERS
THIS PROGRAM, AND THE INDUSTRIAL EMPLOYMENT REVIEW BOARD HEARS APPEALS
FROM SECURITY CLEARANCE DENIALS."  SECOND REPORT OF THE SECRETARY OF
DEFENSE, FOR THE FISCAL YEAR 1949 (1950), 85. 

TRANSMITTED WITH THAT REPORT TO THE PRESIDENT WAS THE ANNUAL REPORT
OF THE SECRETARY OF THE ARMY, WHERE THE NUMBER OF SECURITY CASES
PROCESSED BY THE ARMY-NAVY-AIR FORCE PERSONNEL BOARD, AND THE NUMBER OF
APPEALS HANDLED BY THE INDUSTRIAL EMPLOYMENT REVIEW BOARD WERE
DETAILED.  (FN9) 

AGAIN IN 1950 THE SECRETARY OF DEFENSE INFORMED THE PRESIDENT, IN A
REPORT REQUIRED BY LAW, OF THE STATUS OF THE INDUSTRIAL SECURITY
PROGRAM. 

"IN THE PAST 6 MONTHS, THE MUNITIONS BOARD ACTIVATED THE INDUSTRIAL
EMPLOYMENT REVIEW BOARD, ESTABLISHED PROCEDURES UNDER WHICH THE LATTER
WILL OPERATE, AND DEVELOPED A SET OF UNIFORM CRITERIA STIPULATING THE
CIRCUMSTANCES UNDER WHICH SECURITY CLEARANCES WILL BE DENIED.  THE
MUNITIONS BOARD ALSO ESTABLISHED A CENTRAL INDEX SECURITY CLEARANCE
FILE TO SERVE AS A CLEARING HOUSE FOR ALL INDIVIDUAL AND FACILITY
CLEARANCES AND DENIALS, AND DEVELOPED A STANDARD SECURITY REQUIREMENTS
CHECK LIST  ...  .  UNIFORM STANDARDS FOR SECURITY INVESTIGATIONS OF
FACILITY AND CONTRACTORS' PERSONNEL ARE BEING DEVELOPED  ...  .  A
STANDARD MILITARY SECURITY AGREEMENT IS BEING COORDINATED TO BIND
POTENTIAL SUPPLIERS TO SECURITY REGULATIONS BEFORE A CLASSIFIED
CONTRACT IS AWARDED, AND A MANUAL TO GIVE SECURITY GUIDANCE TO INDUSTRY
IS BEING PREPARED."  SEMIANNUAL REPORT OF THE SECRETARY OF DEFENSE,
JULY 1 TO DEC. 31, 1949 (1950), 97. 

THE PRESIDENT, IN 1953, IN REORGANIZATION PLAN NO. 6, 67 STAT. 638,
TRANSFERRED ALL OF THE "FUNCTIONS OF THE MUNITIONS BOARD" TO THE
SECRETARY OF DEFENSE AND DISSOLVED THAT BOARD.  SINCE THEN THE PROGRAM
HAS BEEN IN OPERATION UNDER THE AUTHORITY OF THE SECRETARY.  ALSO IN
1953, THE PRESIDENT ISSUED EXEC. ORDER NO. 10450, APR. 27, 1953, 18
FED. REG. 2489, 3 CFR (1949-1953 COMP.), P. 936.  THAT ORDER DEALT WITH
THE CRITERIA AND PROCEDURES TO BE USED IN THE FEDERAL LOYALTY SECURITY
PROGRAM, WHICH HAD BEEN INSTITUTED UNDER EXEC. ORDER NO. 9835, 12 FED.
REG. 1935, 3 CFR (1943-1948 COMP.), P. 630, MAR. 21, 1947.  THE LATTER
ORDER MADE CLEAR THAT FEDERAL EMPLOYEES SUSPECTED OF DISLOYALTY HAD NO
RIGHT OF CONFRONTATION.  (FN10)  AND THE REGULATIONS PROMULGATED UNDER
THE ORDER PROVIDED NO SUCH RIGHT.  SEE 13 FED. REG. 9365, 5 CFR (1949),
SEC. 210, DEC. 31, 1948.  THESE PROCEDURES WERE REVISED UNDER EXEC.
ORDER NO. 10450, SUPRA, ALTHOUGH AGAIN, CONFRONTATION AND CROSS
EXAMINATION WERE NOT PROVIDED.  SEE 19 FED. REG. 1503, 32 CFR, P. 288,
MAR. 19, 1954.  THUS, IT WAS CLEAR THAT THE PRESIDENT HAD NOT
CONTEMPLATED THAT THERE WOULD BE A RIGHT OF CONFRONTATION IN THE
FEDERAL LOYALTY SECURITY PROGRAM.  AND THE REPORT OF THE SECRETARY OF
THE ARMY - TRANSMITTED TO THE PRESIDENT BY THE SECRETARY OF DEFENSE -
MADE CLEAR THAT THE CRITERIA OF EXEC. ORDER NO. 10450 WERE BEING
UTILIZED NOT ONLY WHERE THE LOYALTY OF A GOVERNMENT EMPLOYEE WAS IN
DOUBT, BUT ALSO IN CARRYING OUT THE INDUSTRIAL SECURITY PROGRAM. 
SEMIANNUAL REPORT OF THE SECRETARY OF THE ARMY, JAN. 1, 1954, TO JUNE
30, 1954, 135-136. 

THUS WE SEE THAT THE PROGRAM HAS FOR 18 YEARS BEEN CARRIED ON UNDER
THE EXPRESS AUTHORITY OF THE PRESIDENT, AND HAS BEEN REGULARLY REPORTED
TO HIM BY HIS HIGHEST CABINET OFFICERS.  HOW THE COURT CAN SAY, DESPITE
THESE FACTS, THAT THE PRESIDENT HAS NOT SUFFICIENTLY AUTHORIZED THE
PROGRAM IS BEYOND ME, UNLESS THE COURT MEANS THAT IT IS NECESSARY FOR
THE PRESIDENT TO WRITE OUT THE INDUSTRIAL SECURITY MANUAL IN HIS OWN
HAND. 

FURTHERMORE, I THINK CONGRESS HAS SUFFICIENTLY AUTHORIZED THE
PROGRAM, AS IT HAS BEEN KEPT FULLY AWARE OF ITS DEVELOPMENT AND HAS
APPROPRIATED MONEY TO SUPPORT IT.  DURING THE FORMATIVE PERIOD OF THE
PROGRAM, 1949-1951, THE CONGRESS, THROUGH APPROPRIATION HEARINGS, WAS
KEPT FULLY INFORMED AS TO THE ACTIVITY.  IN 1949 D.F. CARPENTER,
CHAIRMAN OF THE MUNITIONS BOARD, APPEARED BEFORE A SUBCOMMITTEE OF THE
HOUSE COMMITTEE ON APPROPRIATIONS TO TESTIFY CONCERNING THE REQUESTED
APPROPRIATION FOR THE BOARD.  WHILE THE REPORT INDICATES MUCH OF THE
TESTIMONY WAS "OFF THE RECORD," IT DOES CONTAIN SPECIFIC REFERENCES TO
THE PROGRAM HERE UNDER ATTACK.  (FN11)  SIGNIFICANTLY THE APPROPRIATION
BILL FOR 1950 INCLUDED AN ITEM OF $11,300,000 FOR THE MAINTENANCE,
INTER ALIA, OF THE BOARD. 

AGAIN, IN 1950 GENERAL TIMBERLAKE, A MEMBER OF THE BOARD, TESTIFIED: 

"THEN WE ARE GOING TO INTENSIFY THE INDUSTRIAL MOBILIZATION PLANNING
WITH THE DEPARTMENT OF DEFENSE, WITH PARTICULAR EMPHASIS ON INDUSTRIAL
SECURITY  ...  ."  HOUSE OF REPRESENTATIVES, HEARINGS BEFORE A
SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS ON THE SUPPLEMENTAL
APPROPRIATION FOR 1951, 81ST CONG., 2D SESS. 264. 

WHILE, AGAIN, SOME OF THE TESTIMONY WAS "OFF THE RECORD" IT WAS
SUFFICIENTLY URGENT AND DETAILED FOR THE CONGRESS TO APPROPRIATE
ADDITIONAL FUNDS FOR THE BOARD FOR 1951.  (FN12) 

BY THE 1953 REORGANIZATION PLAN, THE FUNCTIONS OF THE MUNITIONS BOARD
WERE TRANSFERRED TO VARIOUS ASSISTANT SECRETARIES OF DEFENSE.  THE
INDUSTRIAL SECURITY PROGRAM WAS PUT UNDER THE ASSISTANT SECRETARY OF
DEFENSE FOR MANPOWER, PERSONNEL, AND RESERVE FORCES.  OF COURSE, THIS
OFFICE RECEIVED AN APPROPRIATION EACH YEAR.  THESE HEARINGS, TO CITE
BUT TWO, CERTAINLY INDICATE AN AWARENESS ON THE PART OF CONGRESS OF THE
EXISTENCE OF THE INDUSTRIAL SECURITY PROGRAM, AND THE CONTINUED
APPROPRIATIONS HARDLY BESPEAK AN UNWILLINGNESS ON THE PART OF CONGRESS
THAT IT BE CARRIED ON.  IN 1955, THE EIGHTY-FOURTH CONGRESS, ON THE
MOTION OF SENATOR WILEY FOR UNANIMOUS CONSENT, CAUSED TO BE PRINTED THE
SO-CALLED INTERNAL SECURITY MANUAL, S. DOC. NO. 40, 84TH CONG., 1ST
SESS.  IT IS A COMPILATION OF ALL LAWS, REGULATIONS, AND CONGRESSIONAL
COMMITTEES RELATING TO THE NATIONAL SECURITY.  CONTAINED IN THE VOLUME
IS THE "INDUSTRIAL PERSONNEL SECURITY REVIEW REGULATION," I.E., AT
VERBATIM COPY OF THE REGULATIONS SET UP BY THE SECRETARY OF DEFENSE ON
FEBRUARY 2, 1955.  THIS MANUAL OUTLINED IN DETAIL THE HEARING
PROCEDURES WHICH ARE HERE CONDEMNED BY THE COURT.  AND IT IS IMPORTANT
TO NOTE THAT THE FINAL DENIAL OF GREENE'S CLEARANCE WAS BY A BOARD
ACTING UNDER THESE VERY REGULATIONS.  STILL NOT ONE VOICE WAS RAISED
EITHER WITHIN OR WITHOUT THE HALLS OF CONGRESS THAT THE DEFENSE
DEPARTMENT HAD EXCEEDED ITS AUTHORITY OR THAT CONTRACTOR EMPLOYEES WERE
BEING DENIED THEIR CONSTITUTIONAL RIGHTS.  IN OTHER CASES WE HAVE HELD
THAT THE INACTION OF THE CONGRESS, IN CIRCUMSTANCES MUCH LESS SPECIFIC
THAN HERE, WAS A CLEAR RATIFICATION OF A PROGRAM AS IT WAS THEN BEING
CARRIED OUT BY THE EXECUTIVE.  WHY, I ASK, DO WE NOT DO THAT HERE WHERE
IT IS SO VITAL?  WE SHOULD NOT BE "THAT BLIND COURT  ...  THAT DOES NOT
SEE WHAT 'ALL OTHERS CAN SEE AND UNDERSTAND  ...  .'" UNITED STATES V.
RUMELY, 345 U.S. 41, 44 (1953). 

WHILE IT CERTAINLY IS NOT CLEAR TO ME, I SUPPOSE THAT THE PRESENT
FASTIDIOUSNESS OF THE COURT CAN BE SATISFIED BY THE PRESIDENT'S
INCORPORATING THE PRESENT INDUSTRIAL SECURITY PROGRAM INTO A SPECIFIC
EXECUTIVE ORDER OR THE CONGRESS' PLACING IT ON THE STATUTE BOOKS.  TO
ME THIS SEEMS ENTIRELY SUPERFLUOUS IN LIGHT OF THE CLEAR AUTHORIZATION
PRESENTLY EXISTING IN THE CABINET OFFICERS.   IT ALSO SUBJECTS THE
GOVERNMENT TO MULTITUDINOUS ACTIONS - AND PERHAPS LARGE DAMAGES - BY
REASON OF DISCHARGES MADE PURSUANT TO THE PRESENT PROCEDURES. 

AND I MIGHT ADD A NOTA BENE.  EVEN IF THE CABINET OFFICERS ARE GIVEN
THIS SPECIFIC DIRECTION, THE OPINION TODAY, BY DEALING SO COPIOUSLY
WITH THE CONSTITUTIONAL ISSUES, PUTS A CLOUD OVER BOTH THE EMPLOYEE
LOYALTY PROGRAM AND THE ONE HERE UNDER ATTACK.  NEITHER REQUIRES THAT
HEARINGS AFFORD CONFRONTATION OR CROSS-EXAMINATION.  WHILE THE COURT
DISCLAIMS DECIDING THIS CONSTITUTIONAL QUESTION, NO ONE READING THE
OPINION WILL DOUBT THAT THE EXPLICIT LANGUAGE OF ITS BROAD SWEEP SPEAKS
IN PROPHECY.  LET US HOPE THAT THE WINDS MAY CHANGE.  IF THEY DO NOT
THE PRESENT TEMPORARY DEBACLE WILL TURN INTO A ROUT OF OUR INTERNAL
SECURITY. 

FN1  MY BROTHER HARLAN VERY KINDLY CREDITS ME WITH "COLORFUL
CHARACTERIZATION" IN STATING THIS AS THE ISSUE.  WHILE I TAKE GREAT
PRIDE IN AUTHORSHIP, I MUST SAY THAT IN THIS INSTANCE I MERELY AGREED
WITH THE STATEMENT OF THE ISSUE BY THE SOLICITOR GENERAL AND HIS CO
COUNSEL IN FIVE DIFFERENT PLACES IN THE BRIEF FOR THE UNITED STATES. 
SEE PP. 2, 17, 19, 29, 59. 

FN2  ERCO AGREED IN ITS GOVERNMENT CONTRACT, AS WAS WELL KNOWN TO
GREENE, TO EXCLUDE ANY INDIVIDUAL FROM ANY PART OF ITS PLANT AT WHICH
WORK UNDER THE CONTRACT WAS BEING PERFORMED WHO HAD NOT BEEN CLEARED BY
THE NAVY FOR ACCESS TO MILITARY SECRETS. 

FN3  BROTHER HARLAN STATES THAT I SUGGEST "THAT THE COURT'S ACTION
TODAY REQUIRES 'THE PRESIDENT'S CABINET MEMBERS TO REVOKE THEIR REFUSAL
TO GIVE' THE PETITIONER 'ACCESS TO MILITARY SECRETS,' DESPITE ANY VIEWS
THEY MAY HAVE AS TO HIS RELIABILITY  ...  ."  GOVERNMENT OFFICIALS,
WELL VERSED IN THE APPLICATION OF THIS COURT'S JUDGMENTS TO THE
PRACTICALITIES OF GOVERNMENT OPERATION, SAY THAT THE RELIEF WHICH
GREENE SEEKS HERE - AND WHICH THE COURT NOW GRANTS - IS "IN SUBSTANCE,
A MANDATORY INJUNCTION REQUIRING THAT THE GOVERNMENT SHOW HIM (OR, IN
PRACTICE, ALLOW CONTRACTORS TO SHOW HIM) DEFENSE SECRETS,
NOTWITHSTANDING THE JUDGMENT OF THE EXECUTIVE BRANCH THAT SUCH
DISCLOSURE MIGHT JEOPARDIZE THE NATIONAL SAFETY."  BRIEF FOR THE UNITED
STATES, 48.    FN4  DENT V. WEST VIRGINIA, 129 U.S. 114 (1889), HELD
THAT A WEST VIRGINIA STATUTE DID NOT DEPRIVE ONE PREVIOUSLY PRACTICING
MEDICINE OF HIS RIGHTS WITHOUT DUE PROCESS BY REQUIRING HIM TO OBTAIN A
LICENSE UNDER THE ACT.  SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232
(1957), LIKEWISE A LICENSE CASE, DID NOT PASS UPON THE "RIGHT" OR
"PRIVILEGE" TO PRACTICE LAW, MERELY HOLDING THAT ON THE FACTS THE
REFUSAL TO PERMIT SCHWARE TO TAKE THE EXAMINATION WAS "INVIDIOUSLY
DISCRIMINATORY."  IN PETERS V. HOBBY, 349 U.S. 331 (1955), THE COURT
SIMPLY HELD THE ACTION TAKEN VIOLATED THE EXECUTIVE ORDER INVOLVED. 
THE CONCURRING OPINION, DOUGLAS, J., P. 350, WENT FURTHER BUT ALONE ON
THE QUESTION OF "RIGHT."  THE COURT DID NOT DISCUSS THAT QUESTION, MUCH
LESS PASS UPON IT.  SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551
(1956), HELD THAT THE SUMMARY DISMISSAL WITHOUT FURTHER EVIDENCE BY NEW
YORK OF A SCHOOL TEACHER BECAUSE HE HAD PLEADED THE FIFTH AMENDMENT
BEFORE A UNITED STATES SENATE COMMITTEE VIOLATED DUE PROCESS.  THE CASE
MERELY TOUCHED ON THE "RIGHT" TO PLEAD THE FIFTH AMENDMENT, NOT TO
"PROPERTY" RIGHTS.  TRUAX V. RAICH, 239 U.S. 33 (1915); ALLGEYER V.
LOUISIANA, 165 U.S. 578 (1897); AND POWELL V. PENNSYLVANIA, 127 U.S.
678 (1888), WERE EQUAL PROTECTION CASES WHEREIN DISCRIMINATION WAS
CLAIMED.  GREENE ALLEGES NO DISCRIMINATION. 

FN5  SEE BAILEY V. RICHARDSON, 86 U.S. APP. D.C. 248, 182 F.2D 46,
AFFIRMED BY AN EQUALLY DIVIDED COURT, 341 U.S. 918 (1951); PETERS V.
HOBBY, 349 U.S. 331 (1955). 

FN6  REPORT OF THE COMMISSION ON GOVERNMENT SECURITY (1957), S. DOC.
NO. 64, 85TH CONG., 1ST SESS. 237, N. 7. 

FN7  WAR DEPARTMENT PAMPHLET NO. 32-4 (1946) PROVIDED BOTH CRITERIA
AND PROCEDURES FOR REMOVAL OF SUBVERSIVES.  THE BASIC CRITERION WAS
"GOOD CAUSE TO SUSPECT AN EMPLOYEE OF SUBVERSIVE ACTIVITY  ...  ," THE
LATTER BEING DEFINED AS "SABOTAGE, ESPIONAGE, OR ANY OTHER WILFUL
ACTIVITY INTENDED TO DISRUPT THE NATIONAL DEFENSE PROGRAM."  THE BASIC
PROCEDURE FOR REMOVAL WAS SET OUT IN PARA. 10: 

"10.  WHEN ADEQUATE INVESTIGATION HAS REVEALED THAT THERE IS GOOD
CAUSE TO SUSPECT AN EMPLOYEE OF SUBVERSIVE ACTIVITY ON A NATIONAL
DEFENSE PROJECT OF IMPORTANCE TO ARMY OR NAVY PROCUREMENT, THE VITAL
SUCCESS OF THE PROJECT, AS WELL AS THE SECURITY OF THE LOYAL EMPLOYEES,
MAY REQUIRE THAT THE ARMY OR NAVY, WITHOUT REVEALING THE NATURE OR
SOURCE OF ITS EVIDENCE, REQUEST THE IMMEDIATE REMOVAL OF SUCH
INDIVIDUAL FROM THE PROJECT.  TO THIS END THE COOPERATION OF THE
ORGANIZATIONS REPRESENTATIVE OF ORGANIZED LABOR IS SOLICITED FOR THE
FOLLOWING PROGRAM  ...  ." 

CLEARLY THIS PROCEDURE DID NOT ANTICIPATE CONFRONTATION OR CROSS
EXAMINATION. 

FN8  THE NATIONAL SECURITY ACT AMENDMENTS OF 1949, 63 STAT. 578,
AMENDED SEC. 213 SO AS TO DELETE SUBPARAGRAPH 10. 

FN9  ANNUAL REPORT OF THE SECRETARY OF THE ARMY FOR THE FISCAL YEAR
1949 (1950), 192. 

FN10  PART IV, SEC. 2 OF EXEC. ORDER NO. 9835 SPECIFICALLY STATED
THAT:  "  ...  THE INVESTIGATIVE AGENCY MAY REFUSE TO DISCLOSE THE
NAMES OF CONFIDENTIAL INFORMANTS, PROVIDED IT FURNISHES SUFFICIENT
INFORMATION ABOUT SUCH INFORMANTS ON THE BASIS OF WHICH THE REQUESTING
DEPARTMENT OR AGENCY CAN MAKE AN ADEQUATE EVALUATION OF THE INFORMATION
FURNISHED BY THEM, AND PROVIDED IT ADVISES THE REQUESTING DEPARTMENT OR
AGENCY IN WRITING THAT IT IS ESSENTIAL TO THE PROTECTION OF THE
INFORMANTS OR TO THE INVESTIGATION OF OTHER CASES THAT THE IDENTITY OF
THE INFORMANTS NOT BE REVEALED ...  ." 

FN11  HOUSE OF REPRESENTATIVES, HEARINGS BEFORE THE SUBCOMMITTEE OF
THE COMMITTEE ON APPROPRIATIONS ON THE NATIONAL MILITARY ESTABLISHMENT
APPROPRIATION BILL FOR 1950, 81ST CONG., 1ST SESS. 91. 

FN12  THE REASON FOR THE DEARTH OF LEGISLATIVE REFERENCE TO THE
PROGRAM APPEARS IN SOME 1955 HEARINGS ON AN APPROPRIATION BILL.  UNDER
CONSIDERATION AT THE TIME WAS A PROPOSAL FOR A FUND TO REIMBURSE
CONTRACTOR EMPLOYEES WHO HAD BEEN SUSPENDED DURING A SECURITY CHECK AND
SUBSEQUENTLY CLEARED.  GENERAL MOORE TESTIFIED THAT, IN THE PAST, SUCH
REIMBURSEMENT HAD BEEN MADE BY THE SERVICE SECRETARIES OUT OF THEIR
CONTINGENCY FUNDS.  THEN FOLLOWED THIS COLLOQUY: 

"MR. MAHON.  UNDER THAT (THE CONTINGENCY FUND) YOU CAN BUY A BOY A
TOP, OR A TOY, PROVIDED THE SECRETARY OF DEFENSE THINKS IT IS PROPER? 

"GEN. MOORE.  THAT IS RIGHT, AND WE COME DOWN HERE AND EXPLAIN TO
THIS COMMITTEE WITH RESPECT TO THIS IN A VERY SECRET SESSION HOW MUCH
WE HAVE SPENT AND PRECISELY WHAT WE HAVE SPENT IT FOR."  HOUSE OF
REPRESENTATIVES, HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON
APPROPRIATIONS ON DEPARTMENT OF DEFENSE APPROPRIATIONS FOR 1956, 84TH
CONG., 1ST SESS. 780. 
..END :





FARMERS EDUCATIONAL & COOPERATIVE UNION OF AMERICA, NORTH DAKOTA
DIVISION V. WDAY, INC. 360 U.S. 525  


NO. 248.  ARGUED MARCH 23, 1959.  - DECIDED JUNE 29, 1959.  - 89 N.W.2D
102, AFFIRMED. 


EFFECT, THAT, IF ANYONE LICENSED TO OPERATE A RADIO BROADCASTING
STATION SHALL PERMIT ANY PERSON WHO IS A LEGALLY QUALIFIED CANDIDATE
FOR PUBLIC OFFICE TO BROADCAST OVER SUCH STATION, HE SHALL "AFFORD
EQUAL OPPORTUNITIES" TO ALL OTHER SUCH CANDIDATES FOR THAT OFFICE AND
"SHALL HAVE NO POWER OF CENSORSHIP" OVER THE MATERIAL BROADCAST UNDER
THIS SECTION.  HELD: 

1.  SUCH A LICENSEE MAY NOT DELETE MATERIAL FROM A CANDIDATE'S RADIO
SPEECH ON THE GROUND THAT SUCH MATERIAL MAY BE DEFAMATORY.  PP. 527
531. 

2.  REGARDLESS OF STATE LAW, SUCH A LICENSEE IS NOT LIABLE FOR
DEFAMATORY STATEMENTS MADE IN A SPEECH BROADCAST OVER HIS STATION BY A
CANDIDATE FOR PUBLIC OFFICE UNDER SEC. 315(A).  PP. 531-535. 

FARMERS EDUCATIONAL & COOPERATIVE UNION OF AMERICA, NORTH DAKOTA
DIVISION, V. WDAY, INC. 

CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WE MUST DECIDE WHETHER SEC. 315 OF THE FEDERAL COMMUNICATIONS ACT OF
1934 BARS A BROADCASTING STATION FROM REMOVING DEFAMATORY STATEMENTS
CONTAINED IN SPEECHES BROADCAST BY LEGALLY QUALIFIED CANDIDATES FOR
PUBLIC OFFICE, AND IF SO, WHETHER THAT SECTION GRANTS THE STATION A
FEDERAL IMMUNITY FROM LIABILITY FOR LIBELOUS STATEMENTS SO BROADCAST. 

"(A)  IF ANY LICENSEE SHALL PERMIT ANY PERSON WHO IS A LEGALLY
QUALIFIED CANDIDATE FOR ANY PUBLIC OFFICE TO USE A BROADCASTING
STATION, HE SHALL AFFORD EQUAL OPPORTUNITIES TO ALL OTHER SUCH
CANDIDATES FOR THAT OFFICE IN THE USE OF SUCH BROADCASTING STATION:
PROVIDED, THAT SUCH LICENSEE SHALL HAVE NO POWER OF CENSORSHIP OVER THE
MATERIAL BROADCAST UNDER THE PROVISIONS OF THIS SECTION.  NO OBLIGATION
IS IMPOSED UPON ANY LICENSEE TO ALLOW THE USE OF ITS STATION BY ANY
SUCH CANDIDATE."  (FN1) 

THIS SUIT FOR LIBEL AROSE AS A RESULT OF A SPEECH MADE OVER THE RADIO
AND TELEVISION FACILITIES OF RESPONDENT, WDAY, INC., BY A.C. TOWNLEY -
A LEGALLY QUALIFIED CANDIDATE IN THE 1956 UNITED STATES SENATORIAL RACE
IN NORTH DAKOTA.  BECAUSE IT FELT COMPELLED TO DO SO BY THE
REQUIREMENTS OF SEC. 315, WDAY PERMITTED TOWNLEY TO BROADCAST HIS
SPEECH, UNCENSORED IN ANY RESPECT, AS A REPLY TO PREVIOUS SPEECHES MADE
OVER WDAY BY TWO OTHER SENATORIAL CANDIDATES.  TOWNLEY'S SPEECH, IN
SUBSTANCE, ACCUSED HIS OPPONENTS, TOGETHER WITH PETITIONER, FARMERS
EDUCATIONAL AND COOPERATIVE UNION OF AMERICA, OF CONSPIRING TO
"ESTABLISH A COMMUNIST FARMERS UNION SOVIET RIGHT HERE IN NORTH
DAKOTA."  FARMERS UNION THEN SUED TOWNLEY AND WDAY FOR LIBEL IN A NORTH
DAKOTA STATE DISTRICT COURT.   THAT COURT DISMISSED THE COMPLAINT
AGAINST WDAY ON THE GROUND THAT SEC. 315 RENDERED THE STATION IMMUNE
FROM LIABILITY FOR THE DEFAMATION ALLEGED.  THE SUPREME COURT OF NORTH
DAKOTA AFFIRMED, STATING:  "SECTION 315 IMPOSES A MANDATORY DUTY UPON
BROADCASTING STATIONS TO PERMIT ALL CANDIDATES FOR THE SAME OFFICE TO
USE THEIR FACILITIES IF THEY HAVE PERMITTED ONE CANDIDATE TO USE THEM. 
SINCE POWER OF CENSORSHIP OF POLITICAL BROADCASTS IS PROHIBITED IT MUST
FOLLOW AS A COROLLARY THAT THE MANDATE PROHIBITING CENSORSHIP INCLUDES
THE PRIVILEGE OF IMMUNITY FROM LIABILITY FOR DEFAMATORY STATEMENTS MADE
BY THE SPEAKERS."  FOR THIS REASON IT HELD THAT THE STATE LIBEL LAWS
COULD NOT APPLY TO WDAY.  89 N.W.2D 102, 110.  WE GRANTED CERTIORARI
BECAUSE THE QUESTIONS DECIDED ARE IMPORTANT TO THE ADMINISTRATION OF
THE FEDERAL COMMUNICATIONS ACT.  358 U.S. 810. 

                                            I. 

PETITIONER ARGUES THAT SEC. 315'S PROHIBITION AGAINST CENSORSHIP
LEAVES BROADCASTERS FREE TO DELETE LIBELOUS MATERIAL FROM CANDIDATES'
SPEECHES, AND THAT THEREFORE NO FEDERAL IMMUNITY IS GRANTED A
BROADCASTING STATION BY THAT SECTION.  THE TERM CENSORSHIP, HOWEVER, AS
COMMONLY UNDERSTOOD, CONNOTES ANY EXAMINATION OF THOUGHT OR EXPRESSION
IN ORDER TO PREVENT PUBLICATION OF "OBJECTIONABLE" MATERIAL.  WE FIND
NO CLEAR EXPRESSION OF LEGISLATIVE INTENT, NOR ANY OTHER CONVINCING
REASON TO INDICATE CONGRESS MEANT TO GIVE "CENSORSHIP" A NARROWER
MEANING IN SEC.  315.  IN ARRIVING AT THIS VIEW, WE NOTE THAT
PETITIONER'S INTERPRETATION HAS NOT GENERALLY BEEN FAVORED IN PREVIOUS
CONSIDERATIONS OF THE SECTION.  ALTHOUGH THE FIRST, AND FOR YEARS THE
ONLY JUDICIAL DECISION DEALING WITH THE CENSORSHIP PROVISION DID HOLD
THAT A STATION MAY REMOVE DEFAMATORY STATEMENTS FROM POLITICAL
BROADCASTS, (FN2) SUBSEQUENT JUDICIAL INTERPRETATIONS OF SEC. 315 HAVE
WITH CONSIDERABLE UNIFORMITY RECOGNIZED THAT AN INDIVIDUAL LICENSEE HAS
NO SUCH POWER.  (FN3)  AND WHILE FOR SOME YEARS THE FEDERAL
COMMUNICATIONS COMMISSION'S VIEWS ON THIS MATTER WERE NOT CLEARLY
ARTICULATED, (FN4) SINCE 1948 IT HAS CONTINUOUSLY HELD THAT LICENSEES
CANNOT REMOVE ALLEGEDLY LIBELOUS MATTER FROM SPEECHES BY CANDIDATES. 
(FN5)  SIMILARLY, THE LEGISLATIVE HISTORY OF THE MEASURE BOTH PRIOR TO
ITS FIRST ENACTMENT IN 1927, AND SUBSEQUENTLY, SHOWS A DEEP HOSTILITY
TO CENSORSHIP EITHER BY THE COMMISSION OR BY A LICENSEE.  (FN6) 

MORE IMPORTANT, IT IS OBVIOUS THAT PERMITTING A BROADCASTING STATION
TO CENSOR ALLEGEDLY LIBELOUS REMARKS WOULD UNDERMINE THE BASIC PURPOSE
FOR WHICH SEC. 315 WAS PASSED - FULL AND UNRESTRICTED DISCUSSION OF
POLITICAL ISSUES BY LEGALLY QUALIFIED CANDIDATES.  THAT SECTION DATES
BACK TO, AND WAS ADOPTED VERBATIM FROM, THE RADIO ACT OF 1927.  IN THAT
ACT, CONGRESS PROVIDED FOR THE FIRST TIME A COMPREHENSIVE FEDERAL PLAN
FOR REGULATING THE NEW AND EXPANDING ART OF RADIO BROADCASTING. 
RECOGNIZING RADIO'S POTENTIAL IMPORTANCE AS A MEDIUM OF COMMUNICATION
OF POLITICAL IDEAS, CONGRESS SOUGHT TO FOSTER ITS BROADEST POSSIBLE
UTILIZATION BY ENCOURAGING BROADCASTING STATIONS TO MAKE THEIR
FACILITIES AVAILABLE TO CANDIDATES FOR OFFICE WITHOUT DISCRIMINATION,
AND BY INSURING THAT THESE CANDIDATES WHEN BROADCASTING WERE NOT TO BE
HAMPERED BY CENSORSHIP OF THE ISSUES THEY COULD DISCUSS.  THUS,
EXPRESSLY APPLYING THIS COUNTRY'S TRADITION OF FREE EXPRESSION TO THE
FIELD OF RADIO BROADCASTING, CONGRESS HAS FROM THE FIRST EMPHATICALLY
FORBIDDEN THE COMMISSION TO EXERCISE ANY POWER OF CENSORSHIP OVER RADIO
COMMUNICATION.  (FN7)  IT IS IN LINE WITH THIS SAME TRADITION THAT THE
INDIVIDUAL LICENSEE HAS CONSISTENTLY BEEN DENIED "POWER OF CENSORSHIP"
IN THE VITAL AREA OF POLITICAL BROADCASTS. 

THE DECISION A BROADCASTING STATION WOULD HAVE TO MAKE IN CENSORING
LIBELOUS DISCUSSION BY A CANDIDATE IS FAR FROM EASY.  WHETHER A
STATEMENT IS DEFAMATORY IS RARELY CLEAR.  WHETHER SUCH A STATEMENT IS
ACTIONABLY LIBELOUS IS AN EVEN MORE COMPLEX QUESTION, INVOLVING AS IT
DOES, CONSIDERATION OF VARIOUS LEGAL DEFENSES SUCH AS "TRUTH" AND THE
PRIVILEGE OF FAIR COMMENT.  SUCH ISSUES HAVE ALWAYS TROUBLED COURTS. 
YET, UNDER PETITIONER'S VIEW OF THE STATUTE THEY WOULD HAVE TO BE
RESOLVED BY AN INDIVIDUAL LICENSEE DURING THE STRESS OF A POLITICAL
CAMPAIGN, OFTEN, NECESSARILY, WITHOUT ADEQUATE CONSIDERATION OR BASIS
FOR DECISION.  QUITE POSSIBLY, IF A STATION WERE HELD RESPONSIBLE FOR
THE BROADCAST OF LIBELOUS MATERIAL, ALL REMARKS EVENLY FAINTLY
OBJECTIONABLE WOULD BE EXCLUDED OUT OF AN EXCESS OF CAUTION.  MOREOVER,
IF ANY CENSORSHIP WERE PERMISSIBLE, A STATION SO INCLINED COULD
INTENTIONALLY INHIBIT A CANDIDATE'S LEGITIMATE PRESENTATION UNDER THE
GUISE OF LAWFUL CENSORSHIP OF LIBELOUS MATTER.  BECAUSE OF THE TIME
LIMITATION INHERENT IN A POLITICAL CAMPAIGN, ERRONEOUS DECISIONS BY A
STATION COULD NOT BE CORRECTED BY THE COURTS PROMPTLY ENOUGH TO PERMIT
THE CANDIDATE TO BRING IMPROPERLY EXCLUDED MATTER BEFORE THE PUBLIC. 
IT FOLLOWS FROM ALL THIS THAT ALLOWING CENSORSHIP, EVEN OF THE
ATTENUATED TYPE ADVOCATED HERE, WOULD ALMOST INEVITABLY FORCE A
CANDIDATE TO AVOID CONTROVERSIAL ISSUES DURING POLITICAL DEBATES OVER
RADIO AND TELEVISION, AND HENCE RESTRICT THE COVERAGE OF CONSIDERATION
RELEVANT TO INTELLIGENT POLITICAL DECISION.  WE CANNOT BELIEVE, AND WE
CERTAINLY ARE UNWILLING TO ASSUME, THAT CONGRESS INTENDED ANY SUCH
RESULT. 

     II. 

PETITIONER ALTERNATIVELY ARGUES THAT SEC. 315 DOES NOT GRANT A
STATION IMMUNITY FROM LIABILITY FOR DEFAMATORY STATEMENTS MADE DURING A
POLITICAL BROADCAST EVEN THOUGH THE SECTION PROHIBITS THE STATION FROM
CENSORING ALLEGEDLY LIBELOUS MATTER.  AGAIN, WE CANNOT AGREE.  FOR
UNDER THIS INTERPRETATION, UNLESS A LICENSEE REFUSES TO PERMIT ANY
CANDIDATE TO TALK AT ALL, THE SECTION WOULD SANCTION THE UNCONSCIONABLE
RESULT OF PERMITTING CIVIL AND PERHAPS CRIMINAL LIABILITY TO BE IMPOSED
FOR THE VERY CONDUCT THE STATUTE DEMANDS OF THE LICENSEE.  ACCORDINGLY,
JUDICIAL INTERPRETATIONS REACHING THE ISSUE HAVE FOUND AN IMMUNITY
IMPLICIT IN THE SECTION.  (FN8)  AND IN ALL THOSE CASES CONCLUDING THAT
A LICENSEE HAD NO IMMUNITY, SEC. 315 HAD BEEN CONSTRUED - IMPROPERLY AS
WE HOLD - TO PERMIT A STATION TO CENSOR POTENTIALLY ACTIONABLE
MATERIAL.  (FN9)  IN NO CASE HAS A COURT EVEN IMPLIED THAT THE LICENSEE
WOULD NOT BE RENDERED IMMUNE WERE IT DENIED THE POWER TO CENSOR
LIBELOUS MATERIAL. 

PETITIONER CONTENDS, HOWEVER, THAT THE LEGISLATIVE HISTORY OF SEC.
315 SHOWS THAT CONGRESS DID NOT INTEND TO GRANT AN IMMUNITY.  SOME OF
THE HISTORY SUPPORTS SUCH AN INFERENCE.  AS IT REACHED THE SENATE, THE
PROVISION WHICH BECAME SEC. 18 OF THE RADIO ACT OF 1927 PROVIDED IN
PART THAT IF A STATION PERMITTED ONE CANDIDATE TO USE ITS FACILITIES,
IT SHOULD "BE DEEMED A COMMON CARRIER IN INTERSTATE COMMERCE  ...  "
AND COULD NOT DISCRIMINATE AGAINST OTHER POLITICAL CANDIDATES OR CENSOR
MATERIAL BROADCAST BY THEM.  (FN10)  IN THE SENATE, SENATOR DILL - THE
BILL'S FLOOR MANAGER - INTRODUCED AN AMENDMENT TO THIS PROVISION WHICH,
AMONG OTHER THINGS, SPECIFICALLY GRANTED A STATION IMMUNITY FROM CIVIL
AND CRIMINAL LIABILITY FOR "ANY UNCENSORED UTTERANCES THUS BROADCAST." 
(FN11) THE AMENDMENT WAS ADOPTED BY THE SENATE, BUT ITS PROVISION
EXPRESSLY GRANTING IMMUNITY WAS REMOVED BY THE CONFERENCE COMMITTEE
WITHOUT ANY EXPLANATION.  (FN12)  SECTION 18 WAS INCORPORATED INTO THE
COMMUNICATIONS ACT OF 1934 WITH NO EXPLANATORY DISCUSSION. 
SUBSEQUENTLY, A GREAT DEAL OF PRESSURE BUILT UP FOR LEGISLATION TO
REMOVE ALL POSSIBLE DOUBT AS TO BROADCASTERS' LIABILITY FOR LIBEL
EITHER BY GRANTING THEM A POWER TO CENSOR LIBELOUS STATEMENTS OR BY
PROVIDING AN EXPRESS LEGISLATIVE IMMUNITY.  MANY LEGISLATIVE PROPOSALS
WERE MADE TO ACCOMPLISH THESE PURPOSES, (FN13) BUT NO LEGISLATION
PROVIDING EITHER WAS EVER ENACTED.  THUS, WHATEVER ADVERSE INFERENCE
MAY BE DRAWN FROM THE FAILURE OF CONGRESS TO LEGISLATE AN EXPRESS
IMMUNITY IS OFFSET BY ITS REFUSAL TO PERMIT STATIONS TO AVOID LIABILITY
BY CENSORING BROADCASTS.  AND MORE THAN BALANCING ANY ADVERSE
INFERENCES DRAWN FROM CONGRESSIONAL FAILURE TO LEGISLATE AN EXPRESS
IMMUNITY IS THE FACT THAT THE FEDERAL COMMUNICATIONS COMMISSION - THE
BODY ENTRUSTED WITH ADMINISTERING THE PROVISIONS OF THE ACT - HAS LONG
INTERPRETED SEC. 315 AS GRANTING STATIONS AN IMMUNITY.  (FN14)  NOT
ONLY HAS THIS INTERPRETATION BEEN ADHERED TO DESPITE MANY SUBSEQUENT
LEGISLATIVE PROPOSALS TO MODIFY SEC.  315, BUT WITH FULL KNOWLEDGE OF
THE COMMISSION'S INTERPRETATION CONGRESS HAS SINCE MADE SIGNIFICANT
ADDITIONS TO THAT SECTION WITHOUT AMENDING IT TO DEPART FROM THE
COMMISSION'S VIEW.  (FN15)  IN LIGHT OF THIS CONTRADICTORY LEGISLATIVE
BACKGROUND WE DO NOT FEEL COMPELLED TO REACH A RESULT WHICH SEEMS SO IN
CONFLICT WITH TRADITIONAL CONCEPTS OF FAIRNESS. 

PETITIONER NEVERTHELESS URGES THAT BROADCASTERS DO NOT NEED A
SPECIFIC IMMUNITY TO PROTECT THEMSELVES FROM LIABILITY FOR DEFAMATION
SINCE THEY MAY EITHER INSURE AGAINST ANY LOSS, OR IN THE ALTERNATIVE,
DENY ALL POLITICAL CANDIDATES USE OF STATION FACILITIES.  (FN16)  WE
HAVE NO MEANS OF KNOWING TO WHAT EXTENT INSURANCE IS AVAILABLE TO
BROADCASTING STATIONS, OR WHAT IT WOULD COST THEM.  MOREOVER, SINCE
SEC. 315 EXPRESSLY PROHIBITS STATIONS FROM CHARGING POLITICAL
CANDIDATES HIGHER RATES THAN THEY CHARGE FOR COMPARABLE TIME USED FOR
OTHER PURPOSES, ANY COST OF INSURANCE WOULD PROBABLY HAVE TO BE
ABSORBED BY THE STATIONS THEMSELVES.  PETITIONER'S RELIANCE ON THE
STATIONS' FREEDOM FROM OBLIGATION "TO ALLOW USE OF ITS STATION BY ANY
SUCH CANDIDATE," SEEMS EQUALLY MISPLACED.  WHILE DENYING ALL CANDIDATES
USE OF STATIONS WOULD PROTECT BROADCASTERS FROM LIABILITY, IT WOULD
ALSO EFFECTIVELY WITHDRAW POLITICAL DISCUSSION FROM THE AIR.  INSTEAD
THE THRUST OF SEC. 315 IS TO FACILITATE POLITICAL DEBATE OVER RADIO AND
TELEVISION.  RECOGNIZING THIS, THE COMMUNICATIONS COMMISSION CONSIDERS
THE CARRYING OF POLITICAL BROADCASTS A PUBLIC SERVICE CRITERION TO BE
CONSIDERED BOTH IN LICENSE RENEWAL PROCEEDINGS, AND IN COMPARATIVE
CONTESTS FOR A RADIO OR TELEVISION CONSTRUCTION PERMIT.  (FN17)
CERTAINLY CONGRESS KNEW THE OBVIOUS - THAT IF A LICENSEE COULD PROTECT
HIMSELF FROM LIABILITY IN NO OTHER WAY BUT BY REFUSING TO BROADCAST
CANDIDATES' SPEECHES, THE NECESSARY EFFECT WOULD BE TO HAMPER THE
CONGRESSIONAL PLAN TO DEVELOP BROADCASTING AS A POLITICAL OUTLET,
RATHER THAN TO FOSTER IT.  (FN18) 

WE ARE AWARE THAT CAUSES OF ACTION FOR LIBEL ARE WIDELY RECOGNIZED
THROUGHOUT THE STATES.  BUT WE HAVE NOT HESITATED TO ABROGATE STATE LAW
WHERE SATISFIED THAT ITS ENFORCEMENT WOULD STAND "AS AN OBSTACLE TO THE
ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF
CONGRESS."  (FN19)  HERE, PETITIONER IS ASKING US TO ATTRIBUTE TO SEC.
315 A MEANING WHICH WOULD EITHER FRUSTRATE THE UNDERLYING PURPOSES FOR
WHICH IT WAS ENACTED, OR ALTERNATIVELY IMPOSE UNREASONABLE BURDENS ON
THE PARTIES GOVERNED BY THAT LEGISLATION.  IN THE ABSENCE OF CLEAR
EXPRESSION BY CONGRESS WE WILL NOT ASSUME THAT IT DESIRED SUCH A
RESULT.  AGREEING WITH THE STATE COURTS OF NORTH DAKOTA THAT SEC. 315
GRANTS A LICENSEE AN IMMUNITY FROM LIABILITY FOR LIBELOUS MATERIAL IT
BROADCASTS, WE MERELY READ SEC. 315 IN ACCORDANCE WITH WHAT WE BELIEVE
TO BE ITS UNDERLYING PURPOSE.  AFFIRMED.    FN1  48 STAT. 1088, AS
AMENDED, 47 U.S.C. SEC. 315(A).  SEE ALSO, SEC. 18 OF THE RADIO ACT OF
1927, 44 STAT. 1170. 

FN2 SORENSEN V. WOOD, 123 NEB. 348, 243 N.W. 82.  FOLLOWING THIS
DECISION THE CASE WAS REMANDED FOR A NEW TRIAL.  APPEAL FROM A JUDGMENT
FOR PLAINTIFF WAS DISMISSED BY THE SUPREME COURT OF NEBRASKA.  APPEAL
TO THIS COURT WAS DISMISSED SUB NOM. KFAB BROADCASTING CO. V. SORENSEN,
290 U.S. 599, BECAUSE, AS THE RECORDS OF THIS COURT DISCLOSE, THE
SUPREME COURT OF NEBRASKA'S HOLDING HAD BEEN BASED ON ADEQUATE STATE
GROUNDS, NAMELY, THAT THE CASE HAD BECOME MOOT THROUGH SETTLEMENT. 

FN3  SEE LAMB V. SUTTON, 164 F. SUPP. 928; YATES V. ASSOCIATED
BROADCASTERS, INC., 7 PIKE AND FISCHER RADIO REG. 2088; FELIX V.
WESTINGHOUSE RADIO STATIONS, INC., 89 F. SUPP. 740, REV'D ON OTHER
GROUNDS, 186 F.2D 1; CHARLES PARKER CO. V. SILVER CITY CRYSTAL CO., 142
CONN. 605, 116 A.2D 440; JOSEPHSON V. KNICKERBOCKER BROADCASTING CO.,
179 MISC. 787, 38 N.Y.S.2D 985.  BUT SEE DANIELL V. VOICE OF NEW
HAMPSHIRE, INC., 10 PIKE AND FISCHER RADIO REG. 2045; HOUSTON POST CO.
V. UNITED STATES, 79 F. SUPP. 199. 

FN4  SEE IN RE BELLINGHAM BROADCASTING CO., 8 F.C.C. 159, 172. 

FN5  IN RE PORT HURON BROADCASTING CO., 12 F.C.C. 1069; IN RE WDSU
BROADCASTING CORP., 7 PIKE AND FISCHER RADIO REG. 769; PUBLIC NOTICE
(FCC 54-1155), USE OF BROADCAST FACILITIES BY CANDIDATES FOR PUBLIC
OFFICE, 19 FED. REG. 5948, 5951; PUBLIC NOTICE (FCC 58-936), USE OF
BROADCAST FACILITIES BY CANDIDATES FOR PUBLIC OFFICE, 23 FED. REG.
7817, 7820-7821. 

FN6  SEE S. REP. NO. 1567, 80TH CONG., 2D SESS. 13-14 (1948), WHERE,
DISCUSSING S. 1333, THE COMMITTEE REPORT STATED: 

"THE FLAT PROHIBITION AGAINST THE LICENSEE OF ANY STATION EXERCISING
ANY CENSORSHIP AUTHORITY OVER ANY POLITICAL OR PUBLIC QUESTION
DISCUSSION IS RETAINED AND EMPHASIZED.  THIS MEANS THAT THE COMMISSION
CANNOT ITSELF OR BY RULE OR REGULATION REQUIRE THE LICENSEE TO CENSOR,
ALTER, OR IN ANY MANNER AFFECT OR CONTROL THE SUBJECT MATTER OF ANY
SUCH BROADCAST AND THE LICENSEE MAY NOT IN HIS OWN DISCRETION EXERCISE
ANY SUCH CENSORSHIP AUTHORITY  ...  . 

     *         *         *         *         * 

"SECTION 326 OF THE PRESENT ACT, WHICH DEALS WITH THE QUESTION OF
CENSORSHIP OF RADIO COMMUNICATIONS BY THE COMMISSION  ...  MAKES CLEAR
THAT THE COMMISSION HAS ABSOLUTELY NO POWER OF CENSORSHIP OVER RADIO
COMMUNICATIONS AND THAT IT CANNOT IMPOSE ANY REGULATION OR CONDITION
WHICH WOULD INTERFERE WITH THE RIGHT OF FREE SPEECH BY RADIO." 

AND SEE, E.G., H.R. REP. NO. 404, 69TH CONG., 1ST SESS. 17-18
(MINORITY VIEWS); S. REP.  NO. 772, 69TH CONG., 1ST SESS. 4; 67 CONG.
REC. 5480, 5484, 12356; 78 CONG. REC. 10991-10992; HEARINGS BEFORE
SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 1 AND S. 1754, 69TH
CONG., 1ST SESS., PT. 2, 121, 125-134; HEARINGS BEFORE SENATE COMMITTEE
ON INTERSTATE COMMERCE ON H.R.  7716, 72D CONG., 2D SESS., PT. 2, 9-13;
HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 814, 78TH
CONG., 1ST SESS. 59-68, 943-945. 

FN7  SEC. 29 OF THE RADIO ACT OF 1927, 44 STAT. 1172; SEC. 326 OF THE
COMMUNICATIONS ACT OF 1934, 48 STAT. 1091, AS AMENDED, 47 U.S.C. SEC.
326. 

FN8  LAMB V. SUTTON; YATES V. ASSOCIATED BROADCASTERS, INC.;
JOSEPHSON V. KNICKERBOCKER BROADCASTING CO., SUPRA, NOTE 3.  CF. FELIX
V. WESTINGHOUSE RADIO STATIONS, INC.; CHARLES PARKER CO. V. SILVER CITY
CRYSTAL CO., SUPRA, NOTE 3. 

FN9  HOUSTON POST CO. V. UNITED STATES, SUPRA, NOTE 3; SORENSEN V.
WOOD, SUPRA, NOTE 2; DANIELL V. VOICE OF NEW HAMPSHIRE, INC., SUPRA,
NOTE 3. 

FN10  H.R. 9971, 69TH CONG., 1ST SESS., AS REPORTED TO THE FULL
SENATE, MAY 6, 1926, P. 50, SEC. 4. 

FN11  67 CONG. REC. 12501. 

FN12  H.R. REP. NO. 1886, 69TH CONG., 2D SESS. 10, 18. 

FN13  SEE, E.G., H.R. 9230, 74TH CONG., 1ST SESS.; S. 814, 78TH
CONG., 1ST SESS., SECS. 7, 9, 10, 11; S. 1333, 80TH CONG., 1ST SESS.,
SEC. 15; 98 CONG. REC. 7401.  SEE ALSO HEARINGS BEFORE THE SENATE
COMMITTEE ON INTERSTATE COMMERCE ON H.R. 7716, 72D CONG., 2D SESS., PT.
2, 9-11; HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S.
2910, 73D CONG., 2D SESS.  63-67; HEARINGS BEFORE SENATE COMMITTEE ON
INTERSTATE COMMERCE ON S. 814, 78TH CONG., 1ST SESS. 59-68, 162-163,
362-381, 943-945; HEARINGS BEFORE SELECT COMMITTEE OF THE HOUSE TO
INVESTIGATE THE FCC, PURSUANT TO H. RES. NO. 691, 80TH CONG., 2D SESS.
1-109. 

FN14  SEE NOTE 5, SUPRA.  IN PORT HURON ONLY TWO OF THE FIVE
COMMISSIONERS PARTICIPATING IN THE DECISION EXPRESSLY CONCLUDED THAT
SEC. 315 BARRED STATE PROSECUTIONS FOR LIBEL.  TWO OF THE OTHERS
EXPRESSED NO VIEW ON THE SUBJECT.  AND ONE DISSENTED.  THE COMMISSION'S
1948 REPORT TO CONGRESS STATED, HOWEVER, THAT THE COMMISSION HAD
INTERPRETED SEC. 315 TO GRANT A FEDERAL IMMUNITY.  14 F.C.C. ANN. REP.
28 (1948).  AND IN WDSU, RELEASED NOVEMBER 26, 1951, A MAJORITY OF THE
COMMISSION AFFIRMED THE COMMISSION'S PORT HURON DECISION.  7 PIKE AND
FISCHER RADIO REG. 769.  SEE ALSO 24 F.C.C. ANN. REP. 123 (1958); LAMB
V. SUTTON, SUPRA, NOTE 3, AT 932-933; DANIELL V. VOICE OF NEW
HAMPSHIRE, INC., SUPRA, NOTE 3, AT 2047; CHARLES PARKER CO. V. SILVER
CITY CRYSTAL CO., SUPRA, NOTE 3, 142 CONN., AT 619, 116 A.2D, AT 446. 

FN15  THE COMMISSION'S POSITION WITH RESPECT TO SEC. 315 WAS NOT ONLY
REPORTED TO CONGRESS IN AN ANNUAL REPORT OF THE COMMISSION, 14 F.C.C.
ANN. REP. 28 (1948), BUT IT WAS MADE THE SUBJECT OF A SPECIAL
INVESTIGATION BY A SELECT COMMITTEE OF THE HOUSE, EXPRESSLY CONSTITUTED
FOR THAT PURPOSE.  SEE H.R. REP. NO. 2461, 80TH CONG., 2D SESS.  SEE
ALSO IN RE WDSU BROADCASTING CORP., SUPRA, NOTE 5, AT 772-773.  COMPARE
H.R. REP. NO. 2426, 82D CONG., 2D SESS. 20-21.  FOR EXAMPLES OF
LEGISLATIVE PROPOSALS TO MODIFY SEC. 315 SEE, E.G., S. 2539, 82D CONG.,
2D SESS.; H.R. 4814, 84TH CONG., 1ST SESS. 

FN16  A DISSENT HERE SUGGESTS THAT SINCE WDAY'S BROADCAST WAS
REQUIRED BY FEDERAL LAW, THERE IS A "STRONG LIKELIHOOD" THAT THE NORTH
DAKOTA COURTS MIGHT HOLD THAT THE BROADCAST WAS NOT TORTIOUS UNDER
STATE LAW, OR IF TORTIOUS, WAS PRIVILEGED.  THE NORTH DAKOTA DISTRICT
COURT, HOWEVER, STRUCK DOWN A STATE STATUTE WHICH WOULD HAVE GRANTED
WDAY AN IMMUNITY AS IN VIOLATION OF A STATE CONSTITUTIONAL PROVISION
SAYING TO "EVERY MAN" A COURT REMEDY FOR ANY INJURY DONE HIS "PERSON OR
REPUTATION."  IN THIS SITUATION WE DO NOT THINK THAT THE RECORD
JUSTIFIES THE INFERENCE THAT WDAY COULD HAVE OBTAINED AN IMMUNITY BY
CALLING IT A PRIVILEGE.  BUT WHATEVER NORTH DAKOTA MIGHT HOLD, THE
QUESTION FOR US IS WHETHER CONGRESS INTENDED TO SUBJECT A FEDERAL
LICENSEE TO POSSIBLE LIABILITY UNDER THE LAW OF SOME OR ALL OF THE 49
STATES FOR BROADCASTING IN A WAY REQUIRED BY FEDERAL LAW. 

FN17  IN RE CITY OF JACKSONVILLE, 12 PIKE AND FISCHER RADIO REG. 113,
125-126, 180 I-J; IN RE LOYOLA UNIVERSITY, 12 PIKE AND FISCHER RADIO
REG. 1017, 1099.  SEE ALSO IN RE HOMER P. RAINEY, 11 F.C.C. 898.  CF.
F.C.C. REPORT, IN RE EDITORIALIZING BY BROADCAST LICENSEES, 1 PIKE AND
FISCHER RADIO REG., PT. 3, 91:201. 

FN18  SEE, E.G., STATEMENT OF SENATOR FESS, 67 CONG. REC. 12356. 

FN19  BETHLEHEM STEEL CO. V. NEW YORK LABOR BOARD, 330 U.S. 767, 773;
HILL V. FLORIDA, 325 U.S. 538, 542.  SEE ALSO SAN DIEGO BUILDING TRADES
COUNCIL V. GARMON, 359 U.S. 236; CALIFORNIA V. TAYLOR, 353 U.S. 553. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN, MR. JUSTICE
WHITTAKER AND MR. JUSTICE STEWART JOIN, DISSENTING. 

THE LANGUAGE OF SEC. 315 OF THE FEDERAL COMMUNICATIONS ACT, "SUCH
LICENSEE SHALL HAVE NO POWER OF CENSORSHIP OVER THE MATERIAL BROADCAST
UNDER THE PROVISIONS OF THIS SECTION," (FN1) AND THE LEGISLATIVE
HISTORY OF THIS PROVISION CALL FOR THE CONCLUSION REACHED IN PART I OF
THE COURT'S OPINION, NAMELY, THAT WDAY COULD NOT HAVE LAWFULLY DELETED
FROM A.C. TOWNLEY'S BROADCAST HIS DEFAMATION OF PETITIONER.  BUT DUE
REGARD FOR THE PRINCIPLE OF SEPARATION OF POWERS LIMITING THIS COURT'S
FUNCTIONS AND RESPECT FOR THE BINDING PRINCIPLE OF FEDERALISM, LEAVING
TO THE STATES AUTHORITY NOT WITHDRAWN BY THE CONSTITUTION OR ABSORBED
BY THE CONGRESS, ARE MORE COMPELLING CONSIDERATIONS THAN AVOIDANCE OF A
HARDSHIP LEGALLY IMPOSED.  CONSEQUENTLY THE CLAIM THAT WDAY CANNOT BE
HELD LIABLE UNDER CONSTITUTIONALLY ENACTED STATE LIBEL LAWS MUST BE
TESTED NOT BY INQUIRING WHETHER A PARTICULAR RESULT WOULD BE
"UNCONSCIONABLE" BUT WHETHER THE RESULT IS OR IS NOT BARRED BY FEDERAL
LEGISLATION AS CONSTRUED AND APPLIED IN ACCORDANCE WITH SETTLED
PRINCIPLES OF STATUTORY AND CONSTITUTIONAL ADJUDICATION.  WHEN THE
QUESTION IN THIS CASE IS THUS PROPERLY PUT, IT IS NECESSARY TO EXAMINE
THE THREE RELEVANT LEGAL CONCEPTS TO WHICH RESORT MUST BE HAD IN ORDER
TO FIND THAT WDAY IS NOT LIABLE FOR DEFAMATORY REMARKS BROADCAST BY
IT. 

(1)  IF SEC. 315 COULD BE CONSTRUED TO CONTAIN IMPLICITLY, BETWEEN
THE LINES, A GRANT BY CONGRESS OF IMMUNITY FROM STATE LIBEL LAWS, THE
COURT'S RESULT WOULD FOLLOW.  BUT IT IS NOT POSSIBLE TO FIND SUCH
IMPLIED GRANT OF IMMUNITY.  IT IS COMMON GROUND THAT AN EXPRESS
PROVISION GRANTING SUCH IMMUNITY WAS EXCISED FROM THE BILL WHICH LATER
BECAME THE RADIO ACT OF 1927 AND REPEATED ATTEMPTS IN LATER REVISIONS
OF THE ACT TO INTRODUCE SIMILAR PROVISIONS HAVE FAILED. 

(2)  IF THERE WERE CONSISTENT ADMINISTRATIVE RULINGS THAT THE
COMMUNICATIONS ACT REQUIRED THAT IMMUNITY BE GRANTED, AND IF THAT
ADMINISTRATIVE RULING HAD BEEN ACQUIESCED IN BY CONGRESS EVEN BY
IMPLICATION, THE COURT'S RESULT WOULD HAVE SUPPORT. 

(3) IF SEC. 315 ALONE, OR TOGETHER WITH THE REMAINDER OF THE
COMMUNICATIONS ACT, COULD BE SAID TO MANIFEST A CONGRESSIONAL PURPOSE
TO OUST STATE LAW FROM APPLICATION TO LICENSEES, OR IF THE STATE LAW
COULD BE SAID TO BE IN CLEAR CONFLICT WITH SEC. 315 OR THE ACT AS A
WHOLE, THEN, IN EITHER EVENT, IT COULD BE CONCLUDED THAT THE LIBEL LAW
OF THE STATE HAD BEEN PRE-EMPTED INSOFAR AS ITS APPLICABILITY TO A
BROADCASTER ACTING WITHIN SEC. 315 IS CONCERNED. 

BECAUSE I BELIEVE THAT AGREEMENT WITH THE COURT'S CONCLUSION INVOLVES
EITHER DISREGARD OF THE LEGISLATIVE AND ADMINISTRATIVE HISTORY OF SEC.
315 OR DEPARTURE FROM THE PRINCIPLES WHICH HAVE GOVERNED THIS COURT IN
DETERMINING WHEN STATE LAW MUST GIVE WAY TO OVERRIDING FEDERAL LAW, I
DISSENT FROM PART II OF THE OPINION OF THE COURT AND THEREFORE FROM ITS
JUDGMENT. 

AN ADMINISTRATIVE AGENCY CANNOT, OF COURSE, DETERMINE THE
CONSTITUTIONAL ISSUE WHETHER A FEDERAL STATUTE HAS DISPLACED STATE LAW,
CERTAINLY NOT BY WAY OF DETERMINING WHAT CONGRESS HAS IN FACT DONE. 
IN IN RE PORT HURON BROADCASTING CO., 12 F.C.C. 1069, THE CASE IN WHICH
THE FEDERAL COMMUNICATIONS COMMISSION FIRST HELD THAT STATIONS COULD
NOT CENSOR, THE FEDERAL COMMUNICATIONS COMMISSION'S DICTUM THAT
STATIONS WOULD NOT BE LIABLE WAS NOT A RELEVANT ADMINISTRATIVE
INTERPRETATION OF THE MEANING OF SEC. 315 BUT WAS A FINDING THAT THE
STATES WERE PRE-EMPTED FROM THIS AREA.  IT WAS SAID, NOT THAT THE
BROADCASTERS OPERATING UNDER SEC.  315 HAD A FEDERALLY CREATED DEFENSE,
BUT THAT THE STATE LIBEL LAWS HAD BEEN SUPPLANTED.  "THE CONCLUSION IS
INESCAPABLE THAT CONGRESS HAS OCCUPIED THE FIELD IN CONNECTION WITH
RESPONSIBILITY FOR LIBELOUS MATTER IN BROADCASTS UNDER SECTION 315  ...
."  12 F.C.C., AT 1075-1076. 

WE HAVE HERE NOT A COURSE OF ADMINISTRATIVE INTERPRETATION OF AN
AMBIGUOUS STATUTORY PROVISION; IT IS NOT EVEN A CASE OF A SINGLE
ADMINISTRATIVE APPLICATION OF A STATUTE.  THIS IS A RULING OF
CONSTITUTIONAL LAW - THAT THE SUPREMACY CLAUSE REQUIRES THAT THE
EXISTENCE OF THE COMMUNICATIONS ACT OF 1934 OUST THE STATES OF
JURISDICTION TO IMPOSE LIBEL LAWS UPON BROADCASTS MADE UNDER THE
PROVISIONS OF SEC. 315.  SUCH CONSTITUTIONAL RULINGS ARE FOR THIS COURT
AND NOT FOR ADMINISTRATIVE AGENCIES.  I WOULD SUPPOSE THAT A CONSISTENT
ADMINISTRATIVE INSISTENCE ON THE CONSTITUTIONALITY OF SEC. 315, WERE
THAT A QUESTION, WOULD NOT AFFECT THIS COURT'S CONSIDERATION OF ITS
CONSTITUTIONALITY. 

BUT SUPPOSE THAT, EVEN AS TO PRE-EMPTION, WE ARE TO ASSUME THAT
CONGRESS SHOULD BE SAID TO DEFER TO CONSISTENT ADMINISTRATIVE
INTERPRETATION.  THERE WAS NO SUCH CONSISTENCY HERE IN THE FCC.  THE
COMMISSION HAS NEVER ISSUED A REGULATION NOR HELD IN AN ADJUDICATORY
PROCEEDING THAT THERE IS IMMUNITY.  DICTUM IN THE PORT HURON CASE WAS
AFFIRMATIVELY EMBRACED BY ONLY TWO OF THE FIVE COMMISSIONERS WHO
PRESIDED.  SINCE PORT HURON THE COMMISSION HAS REFERRED TO ITS LANGUAGE
IN THAT CASE IN INCREASINGLY TENTATIVE FASHION.  IN IN RE WDSU
BROADCASTING CORP., 7 PIKE AND FISCHER RADIO REG. 769, 770, THE FCC
SAID OF ITS DICTUM IN PORT HURON: 

"WE SAID IN THE PORT HURON CASE THAT IN OUR VIEW THE STATION WAS
RELIEVED FROM LIABILITY, BUT THAT WHETHER OR NOT THIS WAS THE CASE, THE
FACT REMAINED THAT A LICENSEE IS PROHIBITED FROM CENSORING MATERIAL
BROADCAST UNDER THE PROVISIONS OF SEC. 315." 

IN A REGULATION ISSUED IN 1958 THE COMMISSION ANSWERED THE QUESTION
"IF A LEGALLY QUALIFIED CANDIDATE BROADCASTS LIBELOUS OR SLANDEROUS
REMARKS, IS THE STATION LIABLE THEREFOR?"  IN THIS WAY: 

"IN PORT HURON BCTG.  CO., 4 R.R. 1, THE COMMISSION EXPRESSED AN
OPINION THAT LICENSEES NOT DIRECTLY PARTICIPATING IN THE LIBEL MIGHT BE
ABSOLVED FROM ANY LIABILITY THEY MIGHT OTHERWISE INCUR UNDER STATE LAW,
BECAUSE OF THE OPERATION OF SECTION 315, WHICH PRECLUDES THEM FROM
PREVENTING A CANDIDATE'S UTTERANCES."  23 FED. REG. 7820. 

THUS THE FCC HAS DEMONSTRATED APPARENT WANING CONFIDENCE IN ITS PORT
HURON DICTUM - FROM "THE CONCLUSION IS INESCAPABLE" TO "IN OUR VIEW THE
STATION WAS RELIEVED FROM LIABILITY, BUT  ... WHETHER OR NOT THIS WAS
THE CASE" TO "AN OPINION THAT LICENSEES  ...  MIGHT BE ABSOLVED FROM
ANY LIABILITY." 

EVEN IF THE FCC'S POSITION WERE OF A TYPE TO WHICH THE PRINCIPLE OF
DEFERENCE OR ACQUIESCENCE WERE APPLICABLE, EVEN IF THAT POSITION WERE
LONGER HELD THAN JUST THE PAST DECADE, AND WERE TAKEN WITH MORE
CONFIDENCE THAN WAS TRUE HERE, THE HISTORY OF CONGRESSIONAL DEALINGS
WITH THE QUESTION OF LIABILITY OF STATIONS FOR LIBEL WOULD NOT SUPPORT
A CONCLUSION THAT CONGRESS HAD ACQUIESCED IN SUCH A RULING.  FOR WHEN
THE LAST CONGRESSIONAL DISCUSSION OF AN IMMUNITY PROVISION TOOK PLACE
IN 1952, THE CONFERENCE COMMITTEE, IN REPORTING OUT THE REVISED VERSION
OF SEC. 315, STATED IT HAD REJECTED A HOUSE IMMUNITY PROVISION:  (FN2) 
"  ...  BECAUSE THESE SUBJECTS HAVE NOT BEEN ADEQUATELY STUDIED BY
THE COMMITTEES ON INTERSTATE AND FOREIGN COMMERCE OF THE SENATE AND
HOUSE OF REPRESENTATIVES.  THE PROPOSAL WAS ADOPTED IN THE HOUSE AFTER
THE BILL HAD BEEN REPORTED FROM THE HOUSE COMMITTEE.  THE PROPOSAL
INVOLVES MANY DIFFICULT PROBLEMS AND IT IS THE JUDGMENT OF THE
COMMITTEE OF THE CONFERENCE THAT IT SHOULD BE ACTED ON ONLY AFTER FULL
HEARINGS HAVE BEEN HELD."  H.R. REP. NO. 2426, 82D CONG., 2D SESS. 21. 

THIS LANGUAGE NEGATES RATHER THAN SUPPORTS THE CONCLUSION THAT
CONGRESS IN FAILING TO ENACT PROPOSED IMMUNITY MEASURES WAS IN FACT
ACQUIESCING IN THE PORT HURON DICTUM.  (FN3) 

FOR THESE MANY REASONS A CONCLUSION THAT IN FAILING TO CHANGE SEC.
315 AFTER THE PORT HURON DECISION CONGRESS BY ITS INACTION EFFECTED THE
PRE-EMPTION WHICH THE COMMISSION HAD FOUND IS AN ASSUMPTION WHOLLY
UNSUPPORTED IN FACT.  THE ATTEMPT TO USE CONGRESSIONAL ACQUIESCENCE TO
SUPPORT THE CONSTITUTIONAL RULING OF SUPERSESSION OF STATE LAW RAISES
POLITICAL STALEMATE AND LEGISLATIVE INDECISION (FN4) TO THE LEVEL OF
CONSTITUTIONAL DECLARATION.  AS WE SHOULD GO SLOW TO READ INTO WHAT
CONGRESS HAS SAID THE NEGATION OF STATE POWER, UNLESS IT SPEAKS
EXPLICITLY OR THERE IS OBVIOUS COLLISION, WE SHOULD EVEN LESS WILLINGLY
FIND SUCH NEGATION IN WHAT CONGRESS HAS FRANKLY REFUSED TO SAY. 

THE COURT PROCEEDS NOT ONLY FROM AN INSUPPORTABLE FINDING THAT
CONGRESS ACQUIESCED IN THE COMMISSION'S PORT HURON OPINION.  IT ALSO
RELIES UPON A DETERMINATION THAT NORTH DAKOTA'S LIBEL LAW COULD NOT
CONSTITUTIONALLY BE APPLIED TO WDAY IN THIS CASE SINCE THE STATE'S
LIBEL LAWS HAD BEEN SUPERSEDED BY FEDERAL LAW FOR BROADCASTS MADE UNDER
SEC. 315.  A DETERMINATION OF SUPERSESSION OF STATE LAW RESTS ON LEGAL
AND POLITICAL PRESUPPOSITIONS WHICH SHOULD BE MADE EXPLICIT AND NOT
LEFT CLOUDED.  STATES SHOULD NOT BE HELD TO HAVE BEEN OUSTED FROM POWER
TRADITIONALLY HELD IN THE ABSENCE OF EITHER A CLEAR DECLARATION BY
CONGRESS THAT IT INTENDS TO FORBID THE CONTINUED FUNCTIONING OF THE
STATE LAW OR AN OBVIOUS AND UNAVOIDABLE CONFLICT BETWEEN THE FEDERAL
AND STATE DIRECTIVES.  THE FIRST DOES NOT EXIST HERE.  INDEED,
CONGRESSIONAL REFUSAL TO ACT HAS OFTEN BEEN SUGGESTED AS IMPLIED
RECOGNITION OF THE OPPOSITE.  THUS, IT MAY WELL BE URGED THAT REPEATED
REFUSAL TO RELIEVE FROM STATE LIBEL LAWS AMOUNTED TO AN AFFIRMANCE THAT
THE STATE LAWS OF DEFAMATION SHOULD CONTINUE IN OPERATION SINCE THE
CONGRESS DEBATED THE ISSUE IN TERMS OF ERECTING A DEFENSE TO THESE
LAWS, AND THEN DECLINED TO DO SO.  IN ANY EVENT, THE LEGISLATIVE
HISTORY EMPHATICALLY DOES NOT SUPPORT THE AFFIRMATIVE CONCLUSION THAT
CONGRESS INTENDED PRECLUSION OF STATE LAW.  CONGRESS CAN SPEAK WITH
DRASTIC CLARITY WHEN IT SO INTENDS.  IT HAS NOT SO SPOKEN HERE; IT HAS
REFUSED TO SPEAK WITH DRASTIC CLARITY. 

THE NATURE OF THE CONFLICT WHICH NECESSITATES STRIKING DOWN STATE LAW
HAS BEEN CONSIDERED IN NUMEROUS DECISIONS OF THIS COURT.  IN THE MUCH
CITED CASE OF SINNOT V. DAVENPORT, 22 HOW.  227, 243, THIS COURT SAID: 

"WE AGREE, THAT IN THE APPLICATION OF THIS PRINCIPLE OF SUPREMACY OF
AN ACT OF CONGRESS IN A CASE WHERE THE STATE LAW IS BUT THE EXERCISE OF
A RESERVED POWER, THE REPUGNANCE OR CONFLICT SHOULD BE DIRECT AND
POSITIVE, SO THAT THE TWO ACTS COULD NOT BE RECONCILED OR CONSISTENTLY
STAND TOGETHER." 

WHETHER DENYING TO WDAY THE POWER TO ELIMINATE DEFAMATORY MATTER FROM
BROADCASTS MADE UNDER COMPULSION OF SEC. 315 WHILE AT THE SAME TIME
REFUSING TO FIND IN SEC. 315 EITHER IMMUNITY OR A NEGATION OF STATE
POWER TO APPLY LIBEL LAWS TO PROGRAMS REQUIRED BY THE FEDERAL ACT IS OR
IS NOT FAIR, IS NOT THE QUESTION WITH WHICH THIS COURT MUST, CONSISTENT
WITH THE SUPREMACY CLAUSE AND THE LONG HISTORY OF THIS COURT IN
CONSTRUING IT, BEGIN.  WE ARE DEALING WITH POLITICAL POWER, NOT ETHICAL
IMPERATIVES.  THE MOST HARMONIOUS DEDUCTION TO BE DRAWN FROM THE MANY
CASES IN WHICH THE CLAIM HAS BEEN MADE THAT STATE ACTION CANNOT SURVIVE
SOME CONTRADICTORY COMMAND OF CONGRESS IS THAT STATE ACTION HAS NOT
BEEN SET ASIDE ON MERE GENERALITIES ABOUT CONGRESS HAVING "OCCUPIED THE
FIELD," OR ON THE BASIS OF LOOSE TALK INSTEAD OF DEMONSTRATIONS ABOUT
"CONFLICT" BETWEEN STATE AND FEDERAL ACTION.  WE ARE IN THE DOMAIN OF
GOVERNMENT AND PRACTICAL AFFAIRS, AND THIS COURT HAS NOT STIFLED STATE
ACTION UNLESS WHAT THE STATE HAS REQUIRED, IN THE LIGHT OF WHAT
CONGRESS HAS ORDERED, WOULD TRULY ENTAIL CONTRADICTORY DUTIES OR MAKE
ACTUAL, NOT ARGUMENTATIVE, INROADS ON WHAT CONGRESS HAS COMMANDED OR
FORBIDDEN. 

IT IS TO BE NOTED INITIALLY THAT SINCE DEFAMATION IS GENERALLY
REGARDED AS AN INTENTIONAL TORT, IT IS A SOLID LIKELIHOOD THAT THE
NORTH DAKOTA COURTS WOULD CONCLUDE THAT WDAY'S COMPELLED BROADCAST OF
TOWNLEY'S SPEECH LACKED THE NECESSARY INTENT TO COMMUNICATE THE
DEFAMATION, AND THAT THEREFORE WDAY'S CONDUCT WAS NOT TORTIOUS, OR, IF
PRIMA FACIE TORTIOUS, THAT WDAY WAS PRIVILEGED.  (FN5)  IN NO CASE HAS
ANY STATE COURT HELD A STATION LIABLE ON FINDING THAT THE STATION COULD
NOT CENSOR.  SOME FORTY STATES HAVE ENACTED STATUTES GRANTING VARIOUS
DEGREES OF PRIVILEGE.  (FN6)  IN TWO STATES, EXERCISING THE FLEXIBILITY
OF COMMON-LAW PRINCIPLES, THE COURTS HAVE EXTENDED A DEFENSE OF
PRIVILEGE TO BROADCASTERS COMPELLED TO CARRY BROADCASTS BY SEC. 315. 
(FN7)  THUS, THE LARGELY ABSTRACT ASSUMPTION ON THE BASIS OF WHICH THE
COURT MAKES SUCH HEAVY INROAD ON STATE LAWS - THAT BROADCASTERS WILL BE
HELD WITHOUT HAVING COMMITTED A VOLITIONAL ACT - MAY BE ENTIRELY
CONTRADICTED BY EXPERIENCE. 

HOW TREACHEROUS IT IS FOR THIS COURT TO BE SPECULATING ABOUT STATE
LAW IS WELL ILLUSTRATED BY A DETAILED EXAMINATION OF NORTH DAKOTA LAW
IN THE SITUATION PRESENTED BY THIS CASE.  A NORTH DAKOTA STATUTE
EXTENDING GENERAL IMMUNITY TO ALL BROADCASTS BY RADIO AND TELEVISION
STATIONS WAS FOUND BY THE DISTRICT COURT OF NORTH DAKOTA TO VIOLATE THE
NORTH DAKOTA AND UNITED STATES CONSTITUTIONS.  WDAY, THE APPELLEE
BEFORE THE SUPREME COURT OF NORTH DAKOTA, DID NOT EXCEPT TO THIS
FINDING AND THEREFORE THE SUPREME COURT OF NORTH DAKOTA DECLINED TO
RULE ON THE VALIDITY OF THE NORTH DAKOTA STATUTE.  BUT NO INFERENCE MAY
BE DRAWN FROM THE DISTRICT COURT'S CONCLUSIONS THAT A STATION
BROADCASTING UNDER COMPULSION OF SEC. 315 WOULD BE LIABLE UNDER NORTH
DAKOTA LAW.  ON THE CONTRARY, THE DISTRICT COURT FOUND THAT WDAY HAD A
VALID DEFENSE NOT ONLY UNDER SEC. 315 OF THE COMMUNICATIONS ACT BUT
ALSO WITHIN THE PROVISIONS OF CHAPTER 14-02 OF THE NORTH DAKOTA REVISED
STATUTES OF 1943.  ONE SECTION OF THIS CHAPTER EXTENDS A PRIVILEGE TO
"ONE WHO STANDS IN SUCH RELATION TO THE PERSON INTERESTED AS TO AFFORD
A REASONABLE GROUND FOR SUPPOSING THE MOTIVE FOR THE COMMUNICATION
INNOCENT."  AND SO, RATHER THAN BEING JUSTIFICATION FOR A BELIEF THAT
UNDER NORTH DAKOTA LAW WDAY WOULD BE LIABLE FOR DEFAMATION, THE
DISTRICT COURT'S OPINION IS CLEAR EVIDENCE THAT AT LEAST ONE NORTH
DAKOTA COURT BELIEVED THAT NORTH DAKOTA LAW CREATES A PRIVILEGE IN
FAVOR OF BROADCASTERS WHO ARE COMPELLED BY FEDERAL LAW TO BROADCAST THE
DEFAMATORY MATTER.  IN ANY EVENT, THE FINDING OF UNCONSTITUTIONALITY
WAS BY A LOWER COURT AND NOT BY THE NORTH DAKOTA SUPREME COURT WHICH
IS, OF COURSE, THE FINAL INTERPRETER OF NORTH DAKOTA LAW. 

EVEN GRANTING THE COURT'S UNSUPPORTED ASSUMPTION ABOUT STATE LAW,
HOWEVER, THERE IS NOT THAT CONFLICT BETWEEN FEDERAL AND STATE LAW WHICH
JUSTIFIES DISPLACEMENT OF STATE POWER.  CONFLICT BETWEEN THE NORTH
DAKOTA LIBEL LAW AND SEC. 315 MIGHT BE ATTRIBUTED TO THE FACT THAT
BROADCASTERS, TO AVOID BEING HELD LIABLE WITHOUT FAULT, WILL REFRAIN
FROM PERMITTING ANY POLITICAL CANDIDATE TO BUY TIME.  THIS RESULT, THE
ARGUMENT WOULD CONCLUDE, IS CONTRARY TO THE CONGRESSIONAL COMMAND THAT
STATIONS OPERATE IN THE "PUBLIC CONVENIENCE, INTEREST, OR NECESSITY." 
48 STAT. 1083, AS AMENDED, 47 U.S.C. SEC. 307.  THE FEDERAL
COMMUNICATIONS COMMISSION HAS DETERMINED THAT TO FULFILL THIS
CONGRESSIONAL COMMAND STATIONS MUST CARRY SOME POLITICAL BROADCASTS. 
BUT THE STATE LIBEL LAWS DO NOT PROHIBIT THEM FROM AIRING SPEECHES BY
POLITICAL CANDIDATES.  THEY MERELY MAKE SUCH BROADCASTS POTENTIALLY
LESS PROFITABLE (OR UNPROFITABLE) SINCE THE STATION MAY HAVE TO
COMPENSATE SOMEONE LIBELED DURING THE CANDIDATE'S BROADCAST.  THE
FEDERAL ACT WAS INTENDED NOT TO ESTABLISH A MODE OF SUPERVISING THE
INCOME OF BROADCASTERS - NOT OF PROTECTING OR LIMITING THEIR PROFITS -
BUT OF INSURING "A RAPID, EFFICIENT, NATION-WIDE, AND WORLD-WIDE WIRE
AND RADIO COMMUNICATION SERVICE" FOR THE BENEFIT OF "ALL THE PEOPLE OF
THE UNITED STATES."  48 STAT. 1064, AS AMENDED, 47 U.S.C. SEC. 151. 

WE HAVE HELD THAT THE COMMUNICATIONS ACT DOES NOT GOVERN RELATIONS
BETWEEN STATIONS AND THIRD PERSONS.  RADIO STATION WOW, INC., V.
JOHNSON, 326 U.S. 120.  AND WE HAVE PERMITTED A STATE COURT TO AWARD
DAMAGES FOR BREACH OF A CONTRACT DESPITE THE FACT THAT THAT BREACH WAS
ORDERED BY THE FCC AS A CONDITION FOR RENEWAL OF A LICENSE.  REGENTS OF
THE UNIVERSITY SYSTEM OF GEORGIA V. CARROLL, 338 U.S. 586.  IF NORTH
DAKOTA WERE TO RULE THAT ITS LIBEL LAW APPLIES TO BROADCASTS MADE UNDER
COMPULSION OF SEC. 315, IT WOULD RULE THAT BROADCASTERS ARE LIABLE
WITHOUT FAULT.  THERE IS NOTHING IN SUCH LIABILITY WHICH CONFLICTS WITH
THE NECESSITY OF BROADCASTING IMPOSED BY SEC. 315.  IF CONGRESS CAME TO
FEAR IMPAIRMENT OF ITS POLICY ON POLITICAL BROADCASTS, CONGRESS COULD
ACT TO ALTER THE CONDITION WHICH IT HAS CREATED BY DECLINING TO
LEGISLATE IMMUNITY.  THERE MAY BE A BURDEN, EVEN UNFAIRNESS TO THE
STATIONS.  BUT THERE MAY BE UNFAIRNESS TOO, AFTER ALL, IN DEPRIVING A
DEFAMED INDIVIDUAL OF RECOVERY AGAINST THE AGENCY BY WHICH THE
DEFAMATORY COMMUNICATION WAS MAGNIFIED IN ITS DELETERIOUS EFFECT ON HIS
ABILITY TO EARN A LIVELIHOOD.  ADJUSTMENT OF WHAT IS FAIR TO ALL SHOULD
BE DONE BY A CONGRESSIONAL CHANGE IN THE FEDERAL LAW, OR IN THE ABSENCE
OF SUCH ENACTMENT, BY STATE LAW, THROUGH LEGISLATION OR COMMON-LAW
RULINGS THAT THE STATIONS ARE PARTIALLY OR TOTALLY IMMUNE.  AGAIN,
ALLOCATION OF RISK OF LOSS THROUGH DEFAMATION DOES NOT NECESSARILY
IMPLY THE DUTY NOT TO DEFAME.  THE APPLICATION OF LIBEL LAWS BY NORTH
DAKOTA TO WDAY MERELY MEANS THAT SINCE THE HARM COULD NO MORE HAVE BEEN
AVOIDED BY THE PERSON DEFAMED THAN BY WDAY, IN BALANCING THESE
CONFLICTING UNDESIRABLES THE RISK OF LOSS SHOULD FALL UPON WDAY. 
WHETHER OR NOT THIS WOULD BE A WISE DECISION, IT WOULD NOT CONFLICT
WITH SEC. 315'S COMPULSION TO BROADCAST SPEECHES BY OPPOSING CANDIDATES
FOR OFFICE. 

IN DISCUSSING IN THE FEDERALIST PAPERS THE RESPECTIVE AREAS OF
FEDERAL AND STATE CONSTITUTIONAL POWERS, HAMILTON WROTE THAT STATE
POWERS WOULD BE SUPERSEDED BY FEDERAL AUTHORITY IF CONTINUED AUTHORITY
IN THE STATES WOULD BE "ABSOLUTELY AND TOTALLY CONTRADICTORY AND
REPUGNANT."  "I USE THESE TERMS," HE WROTE, "TO DISTINGUISH THIS  ...
CASE FROM ANOTHER WHICH MIGHT APPEAR TO RESEMBLE IT, BUT WHICH WOULD,
IN FACT, BE ESSENTIALLY DIFFERENT; I MEAN WHERE THE EXERCISE OF A
CONCURRENT JURISDICTION MIGHT BE PRODUCTIVE OF OCCASIONAL INTERFERENCES
IN THE POLICY OF ANY BRANCH OF ADMINISTRATION, BUT WOULD NOT IMPLY ANY
DIRECT CONTRADICTION OR REPUGNANCY IN POINT OF CONSTITUTIONAL
AUTHORITY."  THE FEDERALIST, NO. 32, AT 200 (VAN DOREN ED. 1945). 
SINCE THIS CONCURRENT JURISDICTION WAS "CLEARLY ADMITTED BY THE WHOLE
TENOR" OF THE CONSTITUTION IN HAMILTON'S VIEW, "IT IS NOT  ...  A MERE
POSSIBILITY OF INCONVENIENCE IN THE EXERCISE OF POWERS, BUT AN
IMMEDIATE CONSTITUTIONAL REPUGNANCY THAT CAN BY IMPLICATION ALIENATE
AND EXTINGUISH A PREEXISTING RIGHT OF SOVEREIGNTY."  ID., AT 203. 

HAMILTON'S SUGGESTION, EMANATING FROM THE CONTEST OF CONSTITUTIONAL
CREATION, IS DISREGARDED IN THE APPROACH TAKEN BY THE COURT TODAY ON A
PRECISELY ANALOGOUS IF NOT IDENTICAL QUESTION, FOR THERE EXISTS HERE
NOT AN EXPLICIT CONFLICT BUT, AT THE VERY MOST, AN INTERFERENCE WITH
POLICY.  HAMILTON SAID, AND THIS COURT HAS IN THE PAST BEGUN FROM
SIMILAR PRESUPPOSITIONS, THAT ALIENATION OF AN AREA OF STATE
SOVEREIGNTY IS NOT TO BE IMPLIED FROM OCCASIONAL INTERFERENCES BY STATE
LAW WITH FEDERAL POLICY.  PARTICULARLY SHOULD THIS RULE BE ADHERED TO
WHERE THE PRECISE NATURE OF THAT FEDERAL POLICY ON THE ISSUES INVOLVED
RESTS ON THE CONJECTURES OF THE COURT.  WHEN A STATE STATUTE IS
ASSAILED BECAUSE OF ALLEGED CONFLICT WITH A FEDERAL LAW, THE SAME
CONSIDERATIONS OF FORBEARANCE, THE SAME REGARD FOR THE LAWMAKING POWER
OF STATES, SHOULD GUIDE THE JUDICIAL JUDGMENT AS WHEN THIS COURT IS
ASKED TO DECLARE A STATUTE UNCONSTITUTIONAL OUTRIGHT. 

IN THIS DECISION A STATE LAW IS INVALIDATED BY HYPOTHESIZING
CONGRESSIONAL ACQUIESCENCE AND BY SUPPOSING "CONFLICTING" STATE LAW
WHICH WE CANNOT BE CERTAIN EXISTS AND WHICH, IF IT DOES EXIST, IS NOT
INCOMPATIBLE WITH FEDERAL LAW WHEN JUDGED BY THE CONSIDERATIONS
GOVERNING SUPERSESSION IN THE LONG COURSE OF OUR DECISIONS, JUDGED AS A
CORPUS. 

I WOULD REVERSE THE NORTH DAKOTA SUPREME COURT AND REMAND THE CASE TO
IT WITH INSTRUCTIONS THAT SEC. 315 HAS LEFT TO THE STATES THE POWER TO
DETERMINE THE NATURE AND EXTENT OF THE LIABILITY, IF ANY, OF
BROADCASTERS TO THIRD PERSONS. 

FN1  48 STAT. 1088, AS AMENDED, 47 U.S.C. SEC. 315(A). 

FN2  SEE 98 CONG. REC. 7401-7416. 

FN3  THE SITUATION WOULD NOT HAVE APPEARED TO CONGRESS TO BE ONE IN
WHICH ACQUIESCENCE WAS A MEANINGFUL CONCEPT.  IMMEDIATELY AFTER PORT
HURON THE DECISION WAS CRITICIZED AS BEING WITHOUT STATUTORY BASIS. 
HOUSTON POST CO. V. UNITED STATES, 79 F. SUPP. 199.  IN DISCUSSING THE
PORT HURON DECISION BEFORE A HOUSE COMMITTEE, FCC CHAIRMAN COY INSISTED
THAT THAT DECISION "ONLY REPRESENTS THE VIEWS OF THE COMMISSION" AND
THAT HE DID NOT THINK "THIS DECISION CLARIFIES IT AS FAR AS THE
INDUSTRY IS CONCERNED."  HEARINGS BEFORE HOUSE SELECT COMMITTEE TO
INVESTIGATE THE FEDERAL COMMUNICATIONS COMMISSION, 80TH CONG., 2D SESS.
14.  AFTER PORT HURON HAD BEEN ARGUED BUT BEFORE THE DECISION, A BILL,
S. 1333, 80TH CONG., 1ST SESS., SEC. 15, GRANTING IMMUNITY WAS REPORTED
FAVORABLY BY THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
S. REP. NO. 1567, 80TH CONG., 2D SESS. 13, BUT WAS NEVER ENACTED. 
EVERY INDICATION IS PERSUASIVE THAT THE QUESTION WAS REGARDED AS OPEN
AND HIGHLY DEBATABLE.    FN4  BOTH BEFORE AND AFTER PORT HURON, BILLS
TO PERMIT CENSORSHIP OR GRANT TOTAL OR PARTIAL IMMUNITY HAVE BEEN
INTRODUCED.  SEE H.R. 9230, 74TH CONG., 1ST SESS.; H.R. 3038, 75TH
CONG., 1ST SESS.; S. 814, 78TH CONG., 1ST SESS., SEC. 11; S. 1333, 80TH
CONG., 1ST SESS., SEC. 15; H.R. 3595, 80TH CONG., 1ST SESS., SEC. 15;
H.R. 6949, 81ST CONG., 2D SESS., SEC. 202; H.R.  5470, 82D CONG., 1ST
SESS.; S. 2539, 82D CONG., 2D SESS.; H.R. 7062, 82D CONG., 2D SESS.;
H.R.  7756, 82D CONG., 2D SESS.; S. 1208, 84TH CONG., 1ST SESS.; H.R.
4814, 84TH CONG., 1ST SESS.; S. 1437, 85TH CONG., 1ST SESS., SEC. 401. 
THE CONGRESSIONAL DECLINATION TO ACT PARTAKES NOT OF SATISFACTION WITH
THE PORT HURON DECISION BUT OF INDECISION ABOUT THE PROPRIETY AND
CONSTITUTIONALITY OF THE ALTERNATIVE SOLUTIONS TO THE BROADCASTERS'
PLEA OF UNFAIRNESS. 

FN5  SEE DEVELOPMENTS IN THE LAW OF DEFAMATION, 69 HARV. L. REV. 875,
907-910; REMMERS, RECENT LEGISLATIVE TRENDS IN DEFAMATION BY RADIO, 64
HARV. L. REV. 727. 

FN6  FRIEDENTHAL AND MEDALIE, THE IMPACT OF FEDERAL REGULATION ON
POLITICAL BROADCASTING:  SECTION 315 OF THE COMMUNICATIONS ACT, 72
HARV. L. REV. 445, 485. 

FN7  CHARLES PARKER CO. V. SILVER CITY CRYSTAL CO., 142 CONN. 605,
116 A.2D 440; JOSEPHSON V. KNICKERBOCKER BROADCASTING CO., 179 MISC.
787, 38 N.Y.S.2D 985 (SUP. CT.). 
..END :











PENNSYLVANIA RAILROAD CO. V. DAY 360 U.S. 548 


NO. 397.  ARGUED MARCH 26, 1959.  - DECIDED JUNE 29, 1959.  - 258 F.2D
62, REVERSED AND CAUSE REMANDED. 


CLAIMING THAT, UNDER A COLLECTIVE BARGAINING AGREEMENT ENTERED INTO
BETWEEN HIS UNION AND A RAILROAD UNDER THE RAILWAY LABOR ACT OF 1934,
HE WAS ENTITLED TO EXTRA PAY FOR EACH TIME HE HAD PERFORMED SERVICE FOR
HIS EMPLOYER ON THE TRACKS OF ANOTHER RAILROAD, A LOCOMOTIVE ENGINEER
RETIRED FROM RAILROAD SERVICE AND BROUGHT SUIT FOR SUCH ADDITIONAL
COMPENSATION AGAINST HIS FORMER EMPLOYER IN A FEDERAL DISTRICT COURT. 
HELD:  NOTWITHSTANDING HIS RETIREMENT FROM SERVICE, THE NATIONAL
RAILROAD ADJUSTMENT BOARD HAD EXCLUSIVE PRIMARY JURISDICTION OVER THIS
DISPUTE ARISING UNDER A COLLECTIVE BARGAINING AGREEMENT, AND THE
DISTRICT COURT PROPERLY DISMISSED THE COMPLAINT.  PP. 548-554. 

PENNSYLVANIA RAILROAD CO. V. DAY, ADMINISTRATOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN APRIL 1955 CHARLES A. DEPRIEST BEGAN AN ACTION IN THE DISTRICT
COURT FOR THE DISTRICT OF NEW JERSEY, CLAIMING $27,000 IN ADDITIONAL
COMPENSATION FROM THE PENNSYLVANIA RAILROAD.  DEPRIEST HAD BEEN
EMPLOYED AS A LOCOMOTIVE ENGINEER BY THE RAILROAD FROM MAY 1918 TO
MARCH 1955, AT WHICH TIME HE RESIGNED HIS EMPLOYMENT AND APPLIED FOR AN
ANNUITY.  HE ALLEGED THAT UNDER THE TERMS OF A COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE RAILROAD AND BROTHERHOOD OF LOCOMOTIVE ENGINEERS
OF WHICH HE WAS A MEMBER, HE WAS ENTITLED TO AN EXTRA DAY'S PAY FOR
EACH OF THE 1,000-1,500 TIMES HE HAD BEEN ASSIGNED TO LEAVE HIS
SWITCHING LIMITS AND PERFORM SERVICE FOR HIS EMPLOYER ON TRACKS
BELONGING TO THE BALTIMORE AND OHIO RAILROAD CO. HE RELIED ON A
PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDED EXTRA
COMPENSATION FOR ENGINEERS WHO WERE USED BEYOND THEIR SWITCHING LIMITS
UNDER SPECIALLY DEFINED CIRCUMSTANCES.  DEPRIEST FURTHER ALLEGED THAT
HIS CLAIM HAD BEEN REJECTED BY HIS EMPLOYER'S REPRESENTATIVES,
INCLUDING THE RAILROAD'S CHIEF OPERATING OFFICER FOR THE REGION IN
WHICH HE WAS EMPLOYED.  HIS RETIREMENT FROM SERVICE OCCURRED
IMMEDIATELY AFTER THIS ALLEGED REJECTION.  JURISDICTION WAS BASED ON
DIVERSITY OF CITIZENSHIP.  THE DISTRICT COURT STAYED THE PROCEEDINGS
AWAITING THE DISPOSITION OF SIMILAR CLAIMS AGAINST THE PENNSYLVANIA
RAILROAD THEN PENDING BEFORE THE FIRST DIVISION OF THE NATIONAL
RAILROAD ADJUSTMENT BOARD, 145 F. SUPP. 596.  AN APPEAL FROM THIS
INTERLOCUTORY DECISION, NOT ONE GRANTING OR DENYING AN INJUNCTION, WAS
DISMISSED.  243 F.2D 485.  IN THE INTERIM DEPRIEST DIED AND WAS
REPLACED BY AN ADMINISTRATOR.  FOLLOWING A REJECTION BY THE NATIONAL
RAILROAD ADJUSTMENT BOARD OF CLAIMS AGAINST THE PENNSYLVANIA RAILROAD
INVOLVING THE SAME PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT,
THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND THAT THE
BOARD'S INTERPRETATIONS WERE FINAL AND AS SUCH BINDING ON RESPONDENT,
155 F. SUPP. 695.  THE COURT OF APPEALS REVERSED, 258 F.2D 62, HOLDING
THAT THE DETERMINATION BY THE BOARD OF CLAIMS TO WHICH RESPONDENT WAS
NOT A PARTY WAS NOT BINDING ON HIM, AND THAT THE DISTRICT COURT HAD
JURISDICTION OVER THE CLAIM.  WE GRANTED CERTIORARI, 358 U.S. 878,
SINCE THIS DECISION RAISED AN IMPORTANT QUESTION IN THE ADMINISTRATION
OF THE RAILWAY LABOR ACT OF 1934.  THAT ACT, 48 STAT. 1185, 45 U.S.C.
SEC. 151 ET SEQ., ESTABLISHED A BROAD FRAMEWORK FOR THE REGULATION AND
ADJUSTMENT OF INDUSTRIAL CONTROVERSIES INVOLVING RAILROADS. 

THE ACT ESTABLISHES, INTER ALIA, THE NATIONAL RAILROAD ADJUSTMENT
BOARD WITH THE FOLLOWING PURPOSES AND FUNCTIONS: 

"THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER
OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS, INCLUDING CASES PENDING AND UNADJUSTED ON THE DATE OF
APPROVAL OF THIS ACT, SHALL BE HANDLED IN THE USUAL MANNER UP TO AND
INCLUDING THE CHIEF OPERATING OFFICER OF THE CARRIER DESIGNATED TO
HANDLE SUCH DISPUTES; BUT, FAILING TO REACH AN ADJUSTMENT IN THIS
MANNER, THE DISPUTES MAY BE REFERRED BY PETITION OF THE PARTIES OR BY
EITHER PARTY TO THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD WITH A
FULL STATEMENT OF THE FACTS AND ALL SUPPORTING DATA BEARING UPON THE
DISPUTES."  RAILWAY LABOR ACT, SEC. 3, FIRST (I), 45 U.S.C. SEC. 153,
FIRST (I). 

THE CLASH OF ECONOMIC FORCES WHICH LED TO THE PASSAGE OF THIS ACT,
THE HISTORY OF ITS ENACTMENT, AND THE LEGISLATIVE POLICIES WHICH IT
EXPRESSES AND WHICH GUIDE JUDICIAL INTERPRETATION HAVE BEEN TOO
THOROUGHLY AND RECENTLY CANVASSED BY THIS COURT TO NEED REPETITION. 
(FN1)  ON THE BASIS OF THESE GUIDES TO JUDICIAL CONSTRUCTION WE HAVE
HELD THAT THE NATIONAL RAILROAD ADJUSTMENT BOARD HAD EXCLUSIVE PRIMARY
JURISDICTION OVER DISPUTES BETWEEN UNIONS AND CARRIERS BASED ON THE
PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT.  SLOCUM V. DELAWARE,
L.&W.R. CO., 339 U.S. 239.  ON THE SAME DAY, WE ALSO DECIDED ORDER OF
RAILWAY CONDUCTORS V. SOUTHERN R. CO., 339 U.S. 255, HOLDING THAT THE
PRINCIPLES OF SLOCUM WERE FULLY APPLICABLE TO A CLAIM BY A GROUP OF
CONDUCTORS THAT THEY WERE ENTITLED TO EXTRA COMPENSATION FOR CERTAIN
"SIDE TRIPS" UNDER THE TERMS OF THEIR AGREEMENT WITH THE CARRIER.  THAT
CASE, LIKE THE CASE NOW BEFORE US, INVOLVED CLAIMS FOR COMPENSATION
WHICH COULD ONLY BE ADJUDICATED BY A DETERMINATION OF THE RELEVANT
FACTS AND CONSTRUCTION OF THE COLLECTIVE BARGAINING AGREEMENT. 
HOWEVER, HERE, AS WAS NOT THE CASE IN ORDER OF RAILWAY CONDUCTORS, THE
CLAIMANT HAS RETIRED FROM RAILROAD SERVICE.  THE IMMEDIATE QUESTION IS
WHETHER THAT FACTUAL DIFFERENCE MAKES A LEGAL DIFFERENCE. 

THE ACT GRANTS JURISDICTION TO THE BOARD OF "DISPUTES BETWEEN AN
EMPLOYEE  ...  AND A CARRIER  ...  ."  IT DEFINES "EMPLOYEE" AS
INCLUDING:

"  ...  EVERY PERSON IN THE SERVICE OF A CARRIER (SUBJECT TO ITS
CONTINUING AUTHORITY TO SUPERVISE AND DIRECT THE MANNER OF RENDITION OF
HIS SERVICE) WHO PERFORMS ANY WORK DEFINED AS THAT OF AN EMPLOYEE OR
SUBORDINATE OFFICIAL IN THE ORDERS OF THE INTERSTATE COMMERCE
COMMISSION  ...  ." 

THE NATIONAL RAILROAD ADJUSTMENT BOARD WAS ESTABLISHED AS A TRIBUNAL
TO SETTLE DISPUTES ARISING OUT OF THE RELATIONSHIP BETWEEN CARRIER AND
EMPLOYEE.  ALL THE CONSIDERATIONS WHICH LED CONGRESS TO ENTRUST AN
EXPERT ADMINISTRATIVE BOARD WITH THE INTERPRETATION OF COLLECTIVE
BARGAINING AGREEMENTS ARE EQUALLY APPLICABLE WHEN, AS HERE, THE
EMPLOYEE HAS RETIRED FROM SERVICE AFTER INITIATING A CLAIM FOR
COMPENSATION FOR WORK PERFORMED WHILE ON ACTIVE DUTY.  THE NATURE OF
THE PROBLEM AND THE NEED FOR EXPERIENCE AND EXPERT KNOWLEDGE REMAIN THE
SAME.  THE SAME COLLECTIVE BARGAINING AGREEMENT MUST BE CONSTRUED WITH
THE SAME NEED FOR UNIFORMITY OF INTERPRETATION AND ORDERLY ADJUSTMENT
OF DIFFERENCES.  THERE IS NOTHING IN THE ACT WHICH REQUIRES THAT THE
EMPLOYMENT RELATIONSHIP SUBSIST THROUGHOUT THE ENTIRE PROCESS OF
ADMINISTRATIVE SETTLEMENT.  THE PURPOSE OF THE ACT IS FULFILLED IF THE
CLAIM ITSELF ARISES OUT OF THE EMPLOYMENT RELATIONSHIP WHICH CONGRESS
REGULATED.  THE BOARD ITSELF HAS ACCEPTED THIS CONSTRUCTION AND
ADJUDICATES THE CLAIMS OF RETIRED EMPLOYEES.  (FN2)  THIS UNIFORM
ADMINISTRATIVE INTERPRETATION IS OF GREAT IMPORTANCE, REFLECTING, AS IT
DOES, THE NEEDS AND FAIR EXPECTATIONS OF THE RAILROAD INDUSTRY FOR
WHICH CONGRESS HAS PROVIDED WHAT MIGHT BE TERMED A CHARTER FOR ITS
INTERNAL GOVERNMENT.  MOREOVER, THE DISCHARGED EMPLOYEE MAY CHALLENGE
THE VALIDITY OF HIS DISCHARGE BEFORE THE BOARD, SEEKING REINSTATEMENT
AND BACK PAY.  SEE UNION PACIFIC R. CO. V. PRICE, POST, P. 601.  THUS
IT IS PLAIN BOTH FROM A READING OF THE ACT IN LIGHT OF ITS PURPOSE AND
THE NEEDS OF ITS ADMINISTRATION AND FROM THE SETTLED ADMINISTRATIVE
INTERPRETATION THAT THE BOARD HAS JURISDICTION OVER RESPONDENT'S CLAIM
FOR COMPENSATION. 

SINCE THE BOARD HAS JURISDICTION, IT MUST HAVE EXCLUSIVE PRIMARY
JURISDICTION.  ALL THE CONSIDERATIONS OF LEGISLATIVE MEANING AND POLICY
WHICH HAVE COMPELLED THE CONCLUSION THAT AN ACTIVE EMPLOYEE MUST SUBMIT
HIS CLAIMS TO THE BOARD, AND MAY NOT RESORT TO THE COURTS IN THE FIRST
INSTANCE, ARE THE SAME WHEN THE EMPLOYEE HAS RETIRED AND SEEKS
COMPENSATION FOR WORK PERFORMED WHILE HE REMAINED ON ACTIVE SERVICE.  A
CONTRARY CONCLUSION WOULD CREATE A NOT INSUBSTANTIAL CLASS OF PREFERRED
CLAIMANTS.  (FN3)  RETIRED EMPLOYEES WOULD BE ALLOWED TO BYPASS THE
BOARD SPECIALLY CONSTITUTED FOR HEARING RAILROAD DISPUTES WHENEVER THEY
DEEMED IT ADVANTAGEOUS TO DO SO, WHEREAS ALL OTHER EMPLOYEES WOULD BE
REQUIRED TO PRESENT THEIR CLAIMS TO THE BOARD.  THIS CASE FORCEFULLY
ILLUSTRATES THE DIFFICULTIES OF SUCH A CONSTRUCTION.  SEVERAL ACTIVE
WORKERS HAVE HAD CLAIMS SIMILAR TO THAT OF RESPONDENT REJECTED BY THE
BOARD.  TO ALLOW RESPONDENT NOW TO TRY HIS CLAIM IN THE DISTRICT COURT
WOULD ONLY ACCENTUATE THE DANGER OF INEQUALITY OF TREATMENT AND ITS
CONSEQUENT DISCONTENT WHICH IT WAS THE AIM OF THE RAILWAY LABOR ACT TO
ELIMINATE.  WE CAN TAKE JUDICIAL NOTICE OF THE FACT THAT PROVISIONS IN
RAILROAD COLLECTIVE BARGAINING AGREEMENTS ARE OF A SPECIALIZED
TECHNICAL NATURE CALLING FOR SPECIALIZED TECHNICAL KNOWLEDGE IN
ASCERTAINING THEIR MEANING AND APPLICATION.  WHOLLY APART FROM THE
ADAPTABILITY OF JUDGES AND JURIES TO MAKE SUCH DETERMINATIONS, VARYING
JURY VERDICTS WOULD IMBED INTO SUCH JUDGMENTS VARYING CONSTRUCTIONS NOT
SUBJECT TO REVIEW TO SECURE UNIFORMITY.  NOT ONLY WOULD THIS ENGENDER
DIVERSITY OF PROCEEDINGS BUT DIVERSITY THROUGH JUDICIAL CONSTRUCTION
AND THROUGH THE CONSTRUCTION OF THE ADJUSTMENT BOARD.  SINCE NOTHING IS
A GREATER SPUR TO CONFLICTS, AND EVENTUALLY CONFLICTS RESULTING IN
STRIKES, THAN DIFFERENT PAY FOR THE SAME WORK OR UNFAIR DIFFERENTIALS,
NOT TO RESPECT THE CENTRALIZED DETERMINATION OF THESE QUESTIONS THROUGH
THE ADJUSTMENT BOARD WOULD HAMPER IF NOT DEFEAT THE CENTRAL PURPOSE OF
THE RAILWAY LABOR ACT. 

OUR DECISION IN MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630, DOES
NOT STAND IN THE WAY OF THIS.   THE DECISION IN THAT CASE HAS BEEN
GIVEN ITS PROPER, LIMITED SCOPE IN SLOCUM V. DELAWARE, L.&W.R. CO., 339
U.S. 239.  MOORE CARVED OUT FROM THE CONTROLLING DOCTRINE OF PRIMARY
JURISDICTION THE UNUSUAL AND SPECIAL SITUATION OF WRONGFUL DISCHARGE
WHERE THE AGGRIEVED EMPLOYEE HAD BEEN EXPELLED FROM THE EMPLOYMENT
RELATIONSHIP.  MOREOVER, SINCE THE DISCHARGE HAD BEEN ACCEPTED AS FINAL
BY THE EMPLOYEE, IT IS PROBABLE THAT THE DAMAGES ACCRUED PRIMARILY
AFTER THE EMPLOYMENT RELATIONSHIP HAD TERMINATED. 

OUR CONSISTENT REGARD FOR THE IMPORTANCE OF HAVING DISPUTES BETWEEN
RAILROAD EMPLOYEES AND CARRIERS SETTLED BY THE ADMINISTRATIVE BOARD
WHICH CONGRESS ESTABLISHED FOR THAT PURPOSE REQUIRES RESPONDENT TO
RESORT TO THE NRAB FOR ADJUDICATION OF HIS CLAIM. 

THE JUDGMENT IS REVERSED, AND THE CAUSE REMANDED, IN ORDER THAT THE
CASE MAY BE RETURNED TO THE DISTRICT COURT, WITH INSTRUCTIONS TO
DISMISS THE COMPLAINT FOR LACK OF JURISDICTION.  REVERSED AND
REMANDED. 

FN1  SEE, E.G., RAILROAD TRAINMEN V. CHICAGO RIVER & IND. R. CO., 353
U.S. 30; SLOCUM V. DELAWARE, L.&W.R. CO., 339 U.S. 239; ORDER OF
RAILWAY CONDUCTORS V. PITNEY, 326 U.S. 561; ELGIN, J.&E.R. CO. V.
BURLEY, 325 U.S. 711. 

FN2  E.G., NATIONAL RAILROAD ADJUSTMENT BOARD, FIRST DIVISION, AWARD
NO. 15406; ID., AWARDS NOS. 11888 (WITH INTERPRETATION OF THIS AWARD
CONTAINED IN VOLUME 81 OF AWARDS), 12418, 16129. 

FN3  IN THE YEAR 1956-1957 THERE WERE 361,000 RETIRED RAILROAD
EMPLOYEES RECEIVING BENEFITS UNDER THE RAILROAD RETIREMENT ACT.  H.R.
DOC. NO. 278, 85TH CONG., 2D SESS. 

THE INAPPLICABILITY OF UNITED STATES V. INTERSTATE COMMERCE COMM'N,
337 U.S. 426, TO THE PROBLEM OF THIS CASE, LIKE ITS INAPPLICABILITY TO
THE PROBLEM IN UNION PACIFIC R. CO. V. PRICE, POST, P. 601, DECIDED
TODAY, IS DEALT WITH IN THE COURT'S OPINION IN THAT CASE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS FOR TWO REASONS:
I DO NOT AGREE THAT THE RAILWAY LABOR ACT REQUIRES RETIRED RAILROAD
EMPLOYEES TO SUBMIT THEIR BACK-WAGE CLAIMS TO THE NATIONAL RAILROAD
ADJUSTMENT BOARD; I BELIEVE THAT ACT, AS HERE CONSTRUED TO GRANT
RAILROADS COURT TRIALS OF WAGE CLAIMS AGAINST THEM WHILE COMPELLING THE
EMPLOYEES TO SUBMIT THEIR CLAIMS TO THE BOARD FOR FINAL DETERMINATION,
DENIES EMPLOYEES EQUAL PROTECTION OF THE LAW IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  CF. BOLLING V. SHARPE, 347 U.S.
497. 

                    I. 

THE COURT HOLDS THAT THE RAILWAY LABOR ACT GIVES THE NATIONAL
RAILROAD ADJUSTMENT BOARD EXCLUSIVE JURISDICTION OF BACK-PAY DISPUTES
BETWEEN RETIRED RAILROAD EMPLOYEES AND THEIR EX-EMPLOYER RAILROADS.  I
CANNOT READ THE LABOR ACT THAT WAY.  THE CONTROLLING PROVISION, SEC. 3
FIRST (I), CONFERS POWER ON THE BOARD TO ADJUST "DISPUTES BETWEEN AN
EMPLOYEE OR A GROUP OF EMPLOYEES AND A CARRIER OR CARRIERS  ...  ." 
(FN1)  SEEMINGLY TO HIGHLIGHT THE FACT THAT THE ACT IS TO GOVERN ACTIVE
WORKERS ONLY, CONGRESS DEFINED "EMPLOYEE" AS "EVERY PERSON IN THE
SERVICE OF A CARRIER (SUBJECT TO ITS CONTINUING AUTHORITY TO SUPERVISE
AND DIRECT THE MANNER OF RENDITION OF HIS SERVICE) WHO PERFORMS ANY
WORK DEFINED AS THAT OF AN EMPLOYEE ...  ."  (FN2)  THE RAILWAY
ENGINEER WHO BROUGHT THIS SUIT WAS NOT AN EMPLOYEE WITHIN THIS
DEFINITION.  PRIOR TO SUIT HE HAD RESIGNED HIS JOB, AND HAD CLAIMED AN
ANNUITY UNDER THE RAILROAD RETIREMENT ACT OF 1937, WHICH REQUIRES A
WORKER MAKING SUCH A CLAIM TO RELINQUISH ALL RIGHTS TO RETURN TO
RAILROAD SERVICE IN THE FUTURE.  (FN3) UNDER THESE CIRCUMSTANCES, THE
RETIRED EMPLOYEE COULD NOT BE, AND WAS NOT "IN THE SERVICE" OF THE
RAILROAD OR "SUBJECT TO ITS CONTINUING AUTHORITY TO SUPERVISE THE
MANNER OF RENDITION OF HIS SERVICE."  NO OTHER LANGUAGE IN THE ACT
BRINGS RETIRED RAILROAD EMPLOYEES WITHIN THE EXCLUSIVE JURISDICTION OF
THE ADJUSTMENT BOARD.  I THINK THE COURT'S HOLDING REPRESENTS AN
ALTOGETHER UNJUSTIFIABLE INTERPRETATIVE LIBERTY.    THERE ARE PERHAPS
FEW STATUTES PROVIDING LESS OF AN EXCUSE FOR DEPARTING FROM
CONGRESSIONAL LANGUAGE THAN THE RAILWAY LABOR ACT, AT LEAST INSOFAR AS
ITS COVERAGE IS CONCERNED.  IT IS BUT ONE STEP IN A SERIES OF
CONGRESSIONAL EFFORTS TO ESTABLISH MACHINERY FOR PEACEFUL SETTLEMENT OF
QUARRELS BETWEEN RAILROADS AND RAILROAD WORKERS IN ORDER TO AVOID
STRIKES AND RESULTING INTERRUPTION OF RAILROAD SERVICE.  THE ACT AS A
WHOLE IS A PRODUCT OF MANY YEARS OF THOUGHT, STUDY, CONFERENCES,
DISCUSSIONS, AND EXPERIMENTS.  MANY WITNESSES, INCLUDING
REPRESENTATIVES OF RAILROADS AND EMPLOYEES, HAVE TESTIFIED AT MANY
CONGRESSIONAL HEARINGS.  THE HEARINGS SHOW A SOLICITOUS INTEREST BY
BOTH GROUPS IN THE LANGUAGE OF THE LEGISLATION.  THE ACT TOUCHES
SENSITIVE SUBJECTS OF IMPORTANCE TO INDUSTRIAL PEACE, AND REPRESENTED
AS ENACTED A BALANCE OF INTERESTS REASONABLY SATISFACTORY TO ALL
GROUPS.  AS SUCH, THE PLAIN MEANING OF ITS LANGUAGE SHOULD NOT LIGHTLY
BE DISTURBED. 

THE COURT FINDS REASONS OUTSIDE THE LANGUAGE OF THE ACT, HOWEVER, FOR
EXPANDING THE BOARD'S JURISDICTION BEYOND THE BOUNDARIES SET BY THE
DEFINITIONS OF CONGRESS.  THESE REASONS, IN MY JUDGMENT, DO NOT SUPPORT
THE EXPANSION OF THE ACT'S COVERAGE WHICH THE COURT MAKES.  THE COURT
ARGUES THAT "ALL THE CONSIDERATIONS WHICH LED CONGRESS TO ENTRUST AN
EXPERT ADMINISTRATIVE BOARD WITH THE INTERPRETATION OF COLLECTIVE
BARGAINING AGREEMENTS ARE EQUALLY APPLICABLE WHEN, AS HERE, THE
EMPLOYEE HAS RETIRED FROM SERVICE AFTER INITIATING A CLAIM FOR
COMPENSATION FOR WORK PERFORMED WHILE ON ACTIVE DUTY."  I AM AFRAID
THIS STATEMENT ASSUMES A KNOWLEDGE WHICH THE COURT DOES NOT AND CANNOT
HAVE.  OF COURSE SOME OF THE SAME CONSIDERATIONS APPLY.  I AGREE, FOR
EXAMPLE, THAT THE SAME COLLECTIVE BARGAINING AGREEMENT MUST BE
CONSTRUED WHETHER WAGES ARE CLAIMED BY AN EX-EMPLOYEE OR BY AN ACTIVE
EMPLOYEE.  THIS IS EQUALLY TRUE, HOWEVER, WHEN AN EX-EMPLOYEE SUES FOR
WRONGFUL DISCHARGE UNDER A COLLECTIVE BARGAINING AGREEMENT.  YET WE
HAVE NOT HESITATED ON THREE SEPARATE OCCASIONS TO SAY THAT SUCH ACTIONS
FOR WRONGFUL DISCHARGE CAN BE ADJUDICATED IN THE COURTS, AND THAT THE
COURTS THEMSELVES MAY CONSTRUE THE BARGAINING AGREEMENT.  MOORE V.
ILLINOIS CENTRAL R. CO., 312 U.S. 630; SLOCUM V. DELAWARE, L.&W.R. CO.,
339 U.S. 239; TRANSCONTINENTAL & WESTERN AIR, INC., V. KOPPAL, 345 U.S.
653.  SIMILARLY, WHEN THE BOARD MAKES AN AWARD ADVERSE TO THE RAILROAD
AND THE EMPLOYEE IS FORCED TO GO TO THE COURTS TO HAVE THE AWARD
ENFORCED, COURTS HAVE FELT FREE TO INTERPRET COLLECTIVE BARGAINING
AGREEMENTS DIFFERENTLY FROM THE WAY THE BOARD HAD.  (FN4) 

MOREOVER, I DO NOT AGREE WITH THE COURT THAT THE PROBLEMS INVOLVED IN
SUITS BY EX-EMPLOYEES AND ACTIVE EMPLOYEES ARE NECESSARILY THE SAME. 
ONE CANNOT KNOW ALL THE COMPLEX OF CONSIDERATIONS WHICH LED CONGRESS TO
ADOPT THE ACT.  ONE CAN ONLY SURMISE ITS REASONS FOR CAREFULLY LIMITING
THE ACT'S SCOPE TO DISPUTES BETWEEN ACTIVE RAILROAD WORKERS AND THEIR
EMPLOYERS.  IT IS CLEAR, HOWEVER, THAT ACTIVE EMPLOYEES WORK TOGETHER
FROM DAY TO DAY; THEIR WORK FREQUENTLY MAKES THEM LIVE TOGETHER IN THE
SAME NEIGHBORHOOD; THEY, IN FACT, CONSTITUTE ALMOST A SEPARATE FAMILY
OF PEOPLE, DISCUSSING THEIR INTERESTS AND AFFAIRS, AND AIRING AMONG
THEMSELVES THEIR COMPLAINTS AND GRIEVANCES AGAINST THE COMPANY.  IN
SUCH AN ATMOSPHERE INDIVIDUAL DISSATISFACTIONS TEND TO BECOME THOSE OF
THE GROUP, BREEDING INDUSTRIAL DISTURBANCES AND STRIKES.  WE CANNOT
KNOW THAT THIS IS TRUE OF RETIRED EMPLOYEES, AS THE COURT SEEMS TO TAKE
FOR GRANTED.  INSTEAD, THE VERY OPPOSITE WOULD SEEM A MUCH MORE LIKELY
ASSUMPTION.  RETIRED EMPLOYEES GIVE UP THEIR DAILY WORK CONTACT WITH
ACTIVE WORKERS, FREQUENTLY EVEN MOVE A LONG WAY OFF FROM THEIR OLD
WORKING LOCALITIES, AND THEREFORE THEIR PERSONAL GRIEVANCES ARE NOT SO
LIKELY TO BREED GROUP DISSATISFACTION LEADING TO STRIKES. 
CONSEQUENTLY, IT SEEMS WRONG TO INTIMATE THAT THE GRIEVANCES RETIRED
WORKERS MAY HAVE OVER CLAIMS FOR BACK PAY ARE AS LIKELY TO CREATE
STRIFE PRODUCTIVE OF RAILROAD STRIKES AS THE SAME GRIEVANCES WOULD, IF
ENTERTAINED BY ACTIVE RAILROAD WORKERS.  CERTAINLY, THE COURT'S
QUESTIONABLE ASSUMPTION TO THIS EFFECT SUPPLIES A VERY SLIM BASIS FOR
DEPARTING FROM THE CLEAR LANGUAGE OF THE ACT. 

BUT IF EXTERNAL CONSIDERATIONS ARE TO BE USED TO INTERPRET THE
STATUTE, I THINK THAT THE "LOP-SIDED" EFFECT COURTS HAVE GIVEN TO THE
ACT'S PROVISIONS FOR REVIEW OF BOARD AWARDS FURNISHES A VERY WEIGHTY
REASON FOR EXCLUDING RETIRED EMPLOYEES FROM THE EXCLUSIVE JURISDICTION
OF THE BOARD.  THE ACT PROVIDES THAT EITHER A RAILROAD WORKER OR AN
EMPLOYEE CAN INVOKE THE COMPULSORY JURISDICTION OF THE ADJUSTMENT
BOARD.  (FN5)  SECTION 3 FIRST (M) STATES THAT "AWARDS SHALL BE FINAL
AND BINDING UPON BOTH PARTIES TO THE DISPUTE, EXCEPT INSOFAR AS THEY
SHALL CONTAIN A MONEY AWARD."  (FN6)  AS CONSTRUED, THIS PROVISION
PROHIBITS AN EMPLOYEE FROM SEEKING REVIEW OF AN ADVERSE BOARD RULING IN
THE COURTS.  (FN7)  AND COURTS, DETERMINING THAT A BOARD DENIAL OF AN
EMPLOYEE'S MONEY CLAIM IS NOT A "MONEY AWARD" FALLING WITHIN THE
EXCEPTION OF SEC. 3 FIRST (M), HAVE REFUSED WORKERS A JUDICIAL TRIAL OF
THEIR MONEY CLAIMS AGAINST THE RAILWAY AFTER THESE HAVE BEEN REJECTED
BY THE BOARD.  (FN8) TODAY'S DECISION IN UNION PACIFIC R. CO. V. PRICE,
POST, P. 601, APPEARS TO ADOPT THIS POSITION.  IN CONTRAST, HOWEVER, A
RAILROAD MAY OBTAIN A TRIAL SUBSTANTIALLY DE NOVO OF ANY AWARD ADVERSE
TO IT. FOR, UNDER SEC. 3 FIRST (P) OF THE ACT, IF A CARRIER DOES NOT
VOLUNTARILY COMPLY WITH THE BOARD'S AWARD, INCLUDING WAGE AWARDS FOR
MONEY DAMAGES, A WAGE EARNER CAN ENFORCE THE BOARD'S ORDER ONLY BY
BRINGING, IN A UNITED STATES DISTRICT COURT, A SUIT WHICH "SHALL
PROCEED IN ALL RESPECTS AS OTHER CIVIL SUITS, EXCEPT THAT ON THE TRIAL
OF SUCH SUIT THE FINDINGS AND ORDER OF THE DIVISION OF THE ADJUSTMENT
BOARD SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN STATED  ...
."  (FN9) 

CONSTRUED THIS WAY, THE ACT CREATES A GLARING INEQUALITY OF TREATMENT
BETWEEN WORKERS AND RAILROADS.  AFTER DENIAL BY THE ADJUSTMENT BOARD,
WORKERS CAN GET NO JUDICIAL TRIAL OF THEIR CLAIMS; RAILROADS, HOWEVER,
CAN GET PRECISELY THE SAME KIND OF TRIAL THEY WOULD HAVE WERE THERE NO
ADJUSTMENT BOARD, EXCEPT THAT THE BOARD'S FINDINGS CONSTITUTE PRIMA
FACIE EVIDENCE IN THE CASE.  FOR THE REASONS STATED BY MR. JUSTICE
DOUGLAS IN HIS DISSENT IN PRICE, I THINK THE RAILWAY LABOR ACT SHOULD
BE CONSTRUED TO GRANT A RAILROAD EMPLOYEE THE SAME KIND OF
REDETERMINATION BY JUDGE AND JURY OF A BOARD ORDER DENYING HIM A "MONEY
AWARD" THAT THE ACT AFFORDS A RAILROAD FOR A MONEY AWARD AGAINST IT.
THE COURT REJECTED THIS VIEW IN PRICE.  THE UNFAIRNESS OF THE
DISCRIMINATORY PROCEDURE THERE UPHELD SEEMS MANIFEST TO ME.  IN MY
JUDGMENT, IT IS BOUND TO INCITE THE KIND OF BITTER RESENTMENT AMONG
RAILROAD WORKERS WHICH WILL PRODUCE DISCORD AND STRIKES INTERRUPTING
THE FREE FLOW OF COMMERCE AND CREATING THE VERY EVIL CONGRESS SOUGHT TO
AVOID BY THIS ACT.  THESE REASONS SEEM TO ME TO PROVIDE COMPELLING
ARGUMENTS AGAINST JUDICIAL EXPANSION OF THE ACT TO RETIRED RAILROAD
WORKERS PLAINLY NOT COVERED BY ITS LANGUAGE.  SINCE THE COURT REFUSES
TO CONSTRUE THE ACT TO EXCLUDE SUCH WORKERS, HOWEVER, I AM FORCED TO
REACH AND CONSIDER THE CONSTITUTIONAL CONTENTIONS RAISED BY
RESPONDENT. 

                              II. 

RESPONDENT ARGUES THAT GIVING THE ADJUSTMENT BOARD JURISDICTION TO
MAKE A "FINAL AND BINDING" DETERMINATION OF HIS WAGE CLAIM DEPRIVES HIM
OF A JURY TRIAL IN VIOLATION OF THE SEVENTH AMENDMENT SINCE WAGE
DISPUTES WERE "SUITS AT COMMON LAW  ...  ."  (FN10)  HIS CONTENTION IS
ALL THE MORE SERIOUS WHERE, AS HERE, HE IS COMPELLED TO SUBMIT HIS
CLAIM TO THE BOARD AND - AS I UNDERSTAND THE COURT'S HOLDING HERE AND
IN PRICE - IS NEVER ALLOWED TO TAKE IT TO THE COURTS FOR TRIAL.  IN A
COMPARABLE SITUATION, CONGRESS AMENDED THE REPARATION PROVISIONS OF THE
INTERSTATE COMMERCE ACT FOR THE SPECIFIC PURPOSE OF AVOIDING
CONSTITUTIONAL DIFFICULTIES BY GUARANTEEING A RAILROAD A FULL JURY
TRIAL OF MONEY CLAIMS AGAINST IT.  (FN11)  SIGNIFICANTLY, SEC. 3 FIRST
(P) OF THE RAILWAY LABOR ACT, WHICH PROVIDES THE KIND OF COURT TRIAL A
RAILWAY CAN GET BEFORE AN AWARD AGAINST IT CAN BE ENFORCED, IS COPIED
SUBSTANTIALLY VERBATIM FROM SEC. 16(2) OF THE AMENDED COMMERCE ACT. 
(FN12)  THAT SECTION (SEC. 16(2)) HAD BEEN CONSTRUED BY THIS COURT LONG
BEFORE THE RAILWAY LABOR ACT WAS PASSED SO AS TO ASSURE THAT IT DID NOT
"ABRIDGE THE RIGHT OF TRIAL BY JURY OR TAKE AWAY ANY OF ITS
INCIDENTS."  MEEKER V. LEHIGH VALLEY R. CO., 236 U.S. 412, 430.  IT IS
HARD FOR ME TO BELIEVE THAT CONGRESS ENACTED THE RAILWAY LABOR ACT ON
THE ASSUMPTION THAT A RAILROAD WORKER IS ANY LESS ENTITLED TO A JURY
TRIAL UNDER THE CONSTITUTION THAN IS A RAILROAD.  AND I WOULD CONSTRUE
THE ACT ON THE BASIS THAT CONGRESS BELIEVED BOTH ARE ENTITLED TO SUCH A
TRIAL.  SEE UNION PACIFIC R. CO. V. PRICE, POST, P. 617 (DISSENTING
OPINION) DECIDED TODAY.  INSTEAD THE COURT IN PRICE REJECTS THIS
CONSTRUCTION, FROM WHICH IT MUST FOLLOW THAT RESPONDENT HERE IS
DEPRIVED OF A JURY TRIAL, ALTHOUGH THE RAILROAD CAN GET ONE. 

IT WOULD SURELY NOT BE EASY TO UPHOLD THE CONSTITUTIONALITY OF A
PROCEDURE WHICH TAKES AWAY FROM BOTH PARTIES TO A WAGE DISPUTE THEIR
ANCIENT COMMON-LAW RIGHT TO A TRIAL BY COURT AND JURY.  (FN13) IT
SHOULD BE IMPOSSIBLE TO UPHOLD IT WHEN, AS HERE, THE PROCEDURE GRANTS
BOTH PARTIES AN ADMINISTRATIVE HEARING AND THEN GIVES ONE OF THEM A
SECOND CHANCE BEFORE A JUDGE AND JURY WHILE DENYING IT TO THE OTHER. 
SUCH AN UNEQUAL PROCEDURE CANNOT BE A FAIR TRIAL SINCE IT GIVES ONE
SIDE A FAR BETTER CHANCE TO WIN THAN THE OTHER.  ANALOGOUS PRACTICES IN
BOTH CRIMINAL AND CIVIL CASES HAVE BEEN CONSISTENTLY STRUCK DOWN BY
THIS AND MANY OTHER COURTS.  (FN14)  YET TODAY THE COURT UPHOLDS THIS
PROCEDURE WITHOUT SO MUCH AS DISCUSSING IT.  IT DOES THIS ALTHOUGH I
CAN HARDLY THINK OF A CASE WHERE DISCRIMINATION BETWEEN LITIGANTS IS
LESS JUSTIFIED.  INDEED, THE ONLY "JUSTIFICATION" THAT HAS BEEN
ATTEMPTED IS THAT AT THE TIME THE RAILWAY LABOR ACT WAS PASSED CERTAIN
REPRESENTATIVES OF THE RAILROAD BROTHERHOODS WERE WILLING TO FOREGO
THEIR RIGHT TO TRIAL BY JUDGE AND JURY IN EXCHANGE FOR CERTAIN BENEFITS
THE LAW ALLEGEDLY GAVE THEM.  SEE UNION PACIFIC R. CO. V. PRICE, POST,
P. 601.  TAKEN AS A WHOLE I DO NOT READ THE LEGISLATIVE HISTORY OF THE
LAW AS SUPPORTING ANY SUCH CONCESSION BY THE UNIONS.  BUT EVEN IF IT
DID, I WOULD NOT BE ABLE TO UPHOLD THE PROCEDURE HERE INVOLVED.  FOR,
ASSUMING THAT AN INDIVIDUAL CAN CONTRACT AWAY HIS CONSTITUTIONAL RIGHT
TO AN EQUAL TRIAL, AND ASSUMING ADDITIONALLY THE STILL MORE DOUBTFUL
PROPOSITION THAT REPRESENTATIVES OF AN ORGANIZATION CAN, BY CONTRACT,
ESTOP ITS MEMBERS FROM CLAIMING EQUAL TREATMENT IN THE COURTS IN CASES
OR CONTROVERSIES ARISING THEREAFTER, I CANNOT AGREE THAT THE STATEMENTS
OF SOME UNION LEADERS TO CONGRESS WHEN IT ENACTED THIS LAW CAN BE TAKEN
TO HAVE SUCH AN EFFECT.  A FAIR TRIAL IS TOO VALUABLE A SAFEGUARD OF
OUR LIBERTY FOR US TO ALLOW IT TO BE SO EASILY DISCARDED.  I WOULD HOLD
THAT RESPONDENT HAS A RIGHT TO JURY TRIAL EQUAL TO THAT ACCORDED THE
RAILROAD, AND THAT HIS CONSTITUTIONAL CONTENTION IS WELL TAKEN. 

FOR ALL THESE REASONS I WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS. 

FN1  48 STAT. 1191, 45 U.S.C. SEC. 153 FIRST (I). 

FN2  44 STAT. 577, AS AMENDED, 45 U.S.C. SEC. 151 FIFTH. 

FN3  50 STAT. 309, AS AMENDED, 45 U.S.C. SEC. 228B. 

FN4  BROTHERHOOD OF RAILWAY CLERKS V. RAILWAY EXPRESS AGENCY, INC.,
238 F.2D 181; DAHLBERG V. PITTSBURGH & L.E.R. CO., 138 F.2D 121. 

FN5  WE RECENTLY HELD, OVER THE VIGOROUS PROTEST OF THE RAILROAD
WORKERS, THAT THIS JURISDICTION IS NOT ONLY COMPULSORY, BUT THAT A
UNION CAN BE ENJOINED FROM STRIKING WHILE THE BOARD'S JURISDICTION IS
BEING EXERCISED.  BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER &
I.R. CO., 353 U.S. 30. 

FN6  48 STAT. 1191, 45 U.S.C. SEC. 153 FIRST (M). 

FN7  SEE, E.G., NOTE 8, INFRA.  COURTS HAVE INTIMATED, HOWEVER, THAT
REVIEW OF BOARD RULINGS ADVERSE TO THE EMPLOYEE IS PERMISSIBLE TO THE
EXTENT OF INSURING THAT THE EMPLOYEE WAS NOT DEPRIVED OF PROCEDURAL
RIGHTS PROTECTED BY DUE PROCESS.  ELLERD V. SOUTHERN PACIFIC R. CO.,
241 F.2D 541; BARNETT V. PENNSYLVANIA-READING SEASHORE LINES, 245 F.2D
579. 

FN8  E.G., REYNOLDS V. DENVER & R.G.W.R. CO., 174 F.2D 673; PARKER V.
ILLINOIS CENTRAL R. CO., 108 F. SUPP. 186; RAMSEY V. CHESAPEAKE & O.R.
CO., 75 F. SUPP. 740. 

FN9  48 STAT. 1192, 45 U.S.C. SEC. 153 FIRST (P). 

THE COMPARABLE PROVISION IN THE INTERSTATE COMMERCE ACT HAS BEEN
CONSTRUED TO GIVE VERY LIMITED EFFECT TO THE BOARD'S FINDINGS IN SUCH A
SUIT.  MEEKER V. LEHIGH VALLEY R. CO., 236 U.S. 412, 430; UNITED STATES
V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426, 435.  SEE ALSO, DAHLBERG
V. PITTSBURGH & L.E.R. CO., 138 F.2D 121. 

FN10  "IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL
EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED,
AND NO FACT TRIED BY A JURY, SHALL BE OTHERWISE RE-EXAMINED IN ANY
COURT OF THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON
LAW."  U.S. CONST., AMEND. VII. 

FN11  SEE LEHIGH VALLEY R. CO. V. CLARK, 207 F. 717; WESTERN NEW YORK
& P.R. CO. V. PENN REFINING CO., 137 F. 343, 349-350.  SEE ALSO UNITED
STATES V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426, 444, 454-455
(DISSENTING OPINION); COUNCILL V. WESTERN & A.R. CO., 1 I.C.C. 339, 344
345; HECK V. EAST TENNESSEE, V.&G.R. CO., 1 I.C.C. 495, 502.  AND IN
HIS DISSENT IN UNION PACIFIC R. CO. V. PRICE, POST, P. 617, MR. JUSTICE
DOUGLAS CALLS ATTENTION TO THE FACT THAT THE PROVISIONS OF THE
INTERSTATE COMMERCE ACT HAVE BEEN CONSTRUED, IN UNITED STATES V.
INTERSTATE COMMERCE COMM'N, 337 U.S. 426, TO PROVIDE FOR REVIEW OF
COMMISSION REPARATION ORDERS BY SHIPPERS AS WELL AS BY THE RAILWAYS. 
FN12  SECTION 3 FIRST (P) OF THE RAILWAY LABOR ACT READS IN PART:
"SUCH SUIT IN THE DISTRICT COURT OF THE UNITED STATES SHALL PROCEED IN
ALL RESPECTS AS OTHER CIVIL SUITS, EXCEPT THAT ON THE TRIAL OF SUCH
SUIT THE FINDINGS AND ORDER OF THE DIVISION OF THE ADJUSTMENT BOARD
SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN STATED  ...  ."  48
STAT. 1192, 45 U.S.C. SEC. 153 FIRST (P). 

SUIT IN THE DISTRICT COURT OF THE UNITED STATES SHALL PROCEED IN ALL
RESPECTS LIKE OTHER CIVIL SUITS FOR DAMAGES, EXCEPT THAT ON THE TRIAL
OF SUCH SUIT THE FINDINGS AND ORDER OF THE COMMISSION SHALL BE PRIMA
FACIE EVIDENCE OF THE FACTS THEREIN STATED."  34 STAT. 590, AS AMENDED,
49 U.S.C. SEC. 16(2).    "SINCE BOTH ACTS (INTERSTATE COMMERCE ACT AND
RAILWAY LABOR ACT) CAME OUT OF THE SAME CONGRESSIONAL COMMITTEES ONE
FINDS, NATURALLY ENOUGH, THAT THE PROVISIONS FOR ENFORCEMENT AND REVIEW
OF THE ADJUSTMENT BOARD'S AWARDS WERE BASED ON THOSE FOR REPARATION
ORDERS BY THE INTERSTATE COMMERCE COMMISSION."  ELGIN, J.&E.R. CO. V.
BURLEY, 325 U.S. 711, 749, 760 (DISSENTING OPINION). 

FN13  SEE 3 BLACKSTONE COMMENTARIES (15TH ED. 1809) 162; 2 ID., AT
442. 

IF AN EMPLOYEE CAN BE COMPELLED TO SUBMIT HIS WAGE CLAIM TO THE
ADJUSTMENT BOARD FOR FINAL DETERMINATION, THERE WOULD SEEM TO BE NO
REASON, DESPITE THE CLEAR MANDATE OF THE SEVENTH AMENDMENT, WHY HE
COULD NOT ALSO BE COMPELLED TO SUBMIT COMMON-LAW TORT CLAIMS FOR
NEGLIGENT INJURY TO AN ADMINISTRATIVE OR SEMI-ADMINISTRATIVE BOARD. 
CF. BARNETT V. PENNSYLVANIA-READING SEASHORE LINES, 245 F.2D 579 (BOARD
ADJUDICATION OF CONTRACT ACTION BETWEEN RAILROAD AND INJURED RAILROAD
WORKER WHO CLAIMED THAT HE HAD BEEN GIVEN CONTRACT OF EMPLOYMENT FOR
LIFE IN SETTLEMENT OF PRIOR NEGLIGENT INJURY SUIT HELD TO PRECLUDE
COURT SUIT BY EMPLOYEE). 

FN14  E.G., BURNS V. OHIO, ANTE, P. 252 (STATE REQUIRED TO ALLOW
INDIGENT DEFENDANT TO APPEAL IN FORMA PAUPERIS FROM CRIMINAL CONVICTION
WHERE APPEAL AS OF RIGHT ALLOWED OTHER DEFENDANTS); GRIFFIN V.
ILLINOIS, 351 U.S. 12 (SAME); SPARTANBURG V. CUDD, 132 S.C. 264, 128
S.E. 360 (RIGHT TO JURY REDETERMINATION OF ADMINISTRATIVE AWARD IN
CONDEMNATION SUIT MUST BE ALLOWED MUNICIPALITY IF PERMITTED TO PROPERTY
OWNER); GEORGIA POWER CO. V. BROOKS, 207 GA. 406, 62 S.E.2D 183
(STATUTE ALLOWING ONE PARTY TO A CONDEMNATION VALUATION SUIT TO
INTRODUCE EVIDENCE OF "SIMILAR SALES" WHILE OTHER PARTY IS NOT, HELD
INVALID); PEOPLE V. SHOLEM, 238 ILL. 203, 87 N.E. 390 (APPEAL FROM
ADMINISTRATIVE DETERMINATION OF VALUATION OF AN ESTATE FOR TAX PURPOSES
MUST BE ALLOWED STATE IF ALLOWED OTHER PARTY); HECKER V. ILLINOIS
CENTRAL R. CO., 231 ILL.  574, 83 N.E. 456 (STATUTE PROVIDING FOR STATE
SUPREME COURT REVIEW OF FACTS AFTER TRIAL COURT'S FINDINGS REVERSED
WITHOUT GRANT OF NEW TRIAL BY INTERMEDIATE APPELLATE COURT, BUT DENYING
SUCH REVIEW IF TRIAL COURT'S FINDINGS UPHELD, FOUND INVALID). 

IT IS NOT SURPRISING IN VIEW OF THIS LONG HISTORY THAT COURTS AND
JUDGES HAVE QUESTIONED THE CONSTITUTIONALITY OF COMPELLING RAILROAD
WORKERS TO SUBMIT DISPUTES TO THE ADJUSTMENT BOARD WHILE DENYING THEM
THE SAME TRIAL BY JURY WHICH IS ALLOWED A RAILROAD.  SEE WASHINGTON
TERMINAL CO. V. BOSWELL, 75 U.S. APP. D.C. 1, 11, 124 F.2D 235, 245,
AFF'D BY AN EQUALLY DIVIDED COURT, 319 U.S. 732; BARNETT V.
PENNSYLVANIA-READING SEASHORE LINES, 245 F.2D 579, 581.  SEE ALSO
UNITED STATES V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426, 444, 459
(DISSENTING OPINION); ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S. 711, 719. 

..END :






BARR V. MATTEO 360 U.S. 564 


NO. 350.  ARGUED APRIL 20, 1959.  - DECIDED JUNE 29, 1959.  - 103 U.S.
APP. D.C. 176, 256 F.2D 890, REVERSED. 


WHEN PETITIONER WAS ACTING DIRECTOR OF THE OFFICE OF RENT
STABILIZATION AND RESPONDENTS WERE SUBORDINATE OFFICIALS OF THE SAME
OFFICE, PETITIONER CAUSED TO BE ISSUED A PRESS RELEASE ANNOUNCING HIS
INTENTION TO SUSPEND RESPONDENTS BECAUSE OF THE PART WHICH THEY HAD
PLAYED IN FORMULATING A PLAN FOR THE UTILIZATION OF CERTAIN AGENCY
FUNDS.  THE PLAN HAD BEEN SEVERELY CRITICIZED ON THE FLOOR OF CONGRESS,
AND THE CONGRESSIONAL CRITICISM HAD BEEN WIDELY REPORTED IN THE PRESS. 
RESPONDENTS SUED PETITIONER FOR LIBEL, ALLEGING MALICE.  HELD:
PETITIONER'S PLEA OF ABSOLUTE PRIVILEGE IN DEFENSE OF THE ALLEGED LIBEL
MUST BE SUSTAINED.  PP. 564-578. 

FOR JUDGMENT OF THE COURT AND OPINION OF MR. JUSTICE HARLAN, JOINED
BY MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK AND MR. JUSTICE
WHITTAKER, SEE PP. 564-576. 

FOR CONCURRING OPINION OF MR. JUSTICE BLACK, SEE P. 576. 

FOR DISSENTING OPINION OF MR. CHIEF JUSTICE WARREN, JOINED BY MR.
JUSTICE DOUGLAS, SEE P. 578. 

FOR DISSENTING OPINION OF MR. JUSTICE BRENNAN, SEE P. 586. 

FOR DISSENTING OPINION OF MR. JUSTICE STEWART, SEE P. 592. 

BARR V. MATTEO ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN ANNOUNCED THE JUDGMENT OF THE COURT, AND DELIVERED
AN OPINION, IN WHICH MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK, AND
MR. JUSTICE WHITTAKER JOIN. 

WE ARE CALLED UPON IN THIS CASE TO WEIGH IN A PARTICULAR CONTEXT TWO
CONSIDERATIONS OF HIGH IMPORTANCE WHICH NOW AND AGAIN COME INTO SHARP
CONFLICT - ON THE ONE HAND, THE PROTECTION OF THE INDIVIDUAL CITIZEN
AGAINST PECUNIARY DAMAGE CAUSED BY OPPRESSIVE OR MALICIOUS ACTION ON
THE PART OF OFFICIALS OF THE FEDERAL GOVERNMENT; AND ON THE OTHER, THE
PROTECTION OF THE PUBLIC INTEREST BY SHIELDING RESPONSIBLE GOVERNMENTAL
OFFICERS AGAINST THE HARASSMENT AND INEVITABLE HAZARDS OF VINDICTIVE OR
ILL-FOUNDED DAMAGE SUITS BROUGHT ON ACCOUNT OF ACTION TAKEN IN THE
EXERCISE OF THEIR OFFICIAL RESPONSIBILITIES. 

THIS IS A LIBEL SUIT, BROUGHT IN THE DISTRICT COURT OF THE DISTRICT
OF COLUMBIA BY RESPONDENTS, FORMER EMPLOYEES OF THE OFFICE OF RENT
STABILIZATION.  THE ALLEGED LIBEL WAS CONTAINED IN A PRESS RELEASE
ISSUED BY THE OFFICE ON FEBRUARY 5, 1953, AT THE DIRECTION OF
PETITIONER, THEN ITS ACTING DIRECTOR.  (FN1)  THE CIRCUMSTANCES WHICH
GAVE RISE TO THE ISSUANCE OF THE RELEASE FOLLOW. 

IN 1950 THE STATUTORY EXISTENCE OF THE OFFICE OF HOUSING EXPEDITER,
THE PREDECESSOR AGENCY OF THE OFFICE OF RENT STABILIZATION, WAS ABOUT
TO EXPIRE.  RESPONDENT MADIGAN, THEN DEPUTY DIRECTOR IN CHARGE OF
PERSONNEL AND FISCAL MATTERS, AND RESPONDENT MATTEO, CHIEF OF THE
PERSONNEL BRANCH, SUGGESTED TO THE HOUSING EXPEDITER A PLAN DESIGNED TO
UTILIZE SOME $2,600,000 OF AGENCY FUNDS EARMARKED IN THE AGENCY'S
APPROPRIATION FOR THE FISCAL YEAR 1950 EXCLUSIVELY FOR TERMINAL-LEAVE
PAYMENTS.  THE EFFECT OF THE PLAN WOULD HAVE BEEN TO OBVIATE THE
POSSIBILITY THAT THE AGENCY MIGHT HAVE TO MAKE LARGE TERMINAL-LEAVE
PAYMENTS DURING THE NEXT FISCAL YEAR OUT OF GENERAL AGENCY FUNDS,
SHOULD THE LIFE OF THE AGENCY BE EXTENDED BY CONGRESS.  IN ESSENCE, THE
MECHANICS OF THE PLAN WERE THAT AGENCY EMPLOYEES WOULD BE DISCHARGED,
PAID ACCRUED ANNUAL LEAVE OUT OF THE $2,600,000 EARMARKED FOR TERMINAL
LEAVE PAYMENTS, REHIRED IMMEDIATELY AS TEMPORARY EMPLOYEES, AND
RESTORED TO PERMANENT STATUS SHOULD THE AGENCY'S LIFE IN FACT BE
EXTENDED. 

PETITIONER, AT THE TIME GENERAL MANAGER OF THE AGENCY, OPPOSED
RESPONDENTS' PLAN ON THE GROUND THAT IT VIOLATED THE SPIRIT OF THE
THOMAS AMENDMENT, 64 STAT. 768, (FN2) AND EXPRESSED HIS OPPOSITION TO
THE HOUSING EXPEDITER.  THE EXPEDITER DECIDED AGAINST GENERAL ADOPTION
OF THE PLAN, BUT AT RESPONDENT MATTEO'S REQUEST GAVE PERMISSION FOR ITS
USE IN CONNECTION WITH APPROXIMATELY FIFTY EMPLOYEES, INCLUDING BOTH
RESPONDENTS, ON A VOLUNTARY BASIS.  (FN3)  THEREAFTER THE LIFE OF THE
AGENCY WAS IN FACT EXTENDED. 

SOME TWO AND A HALF YEARS LATER, ON JANUARY 28, 1953, THE OFFICE OF
RENT STABILIZATION RECEIVED A LETTER FROM SENATOR JOHN J. WILLIAMS OF
DELAWARE, INQUIRING ABOUT THE TERMINAL-LEAVE PAYMENTS MADE UNDER THE
PLAN IN 1950.  RESPONDENT MADIGAN DRAFTED A REPLY TO THE LETTER, WHICH
HE DID NOT ATTEMPT TO BRING TO THE ATTENTION OF PETITIONER, AND THEN
PREPARED A REPLY WHICH HE SENT TO PETITIONER'S OFFICE FOR HIS SIGNATURE
AS ACTING DIRECTOR OF THE AGENCY.  PETITIONER WAS OUT OF THE OFFICE,
AND A SECRETARY SIGNED THE SUBMITTED LETTER, WHICH WAS THEN DELIVERED
BY MADIGAN TO SENATOR WILLIAMS ON THE MORNING OF FEBRUARY 3, 1953. 

ON FEBRUARY 4, 1953, SENATOR WILLIAMS DELIVERED A SPEECH ON THE FLOOR
OF THE SENATE STRONGLY CRITICIZING THE PLAN, STATING THAT 'TO SAY THE
LEAST IT IS AN UNJUSTIFIABLE RAID ON THE FEDERAL TREASURY, AND HEADS OF
EVERY AGENCY IN THE GOVERNMENT WHO HAVE CONDONED THIS PRACTICE SHOULD
BE CALLED TO TASK."  THE LETTER ABOVE REFERRED TO WAS ORDERED PRINTED
IN THE CONGRESSIONAL RECORD.  OTHER SENATORS JOINED IN THE ATTACK ON
THE PLAN.  (FN4)  THEIR COMMENTS WERE WIDELY REPORTED IN THE PRESS ON
FEBRUARY 5, 1953, AND PETITIONER, IN HIS CAPACITY AS ACTING DIRECTOR OF
THE AGENCY, RECEIVED A LARGE NUMBER OF INQUIRIES FROM NEWSPAPERS AND
OTHER NEWS MEDIA AS TO THE AGENCY'S POSITION ON THE MATTER. 

ON THAT DAY PETITIONER SERVED UPON RESPONDENTS LETTERS EXPRESSING HIS
INTENTION TO SUSPEND THEM FROM DUTY, AND AT THE SAME TIME ORDERED
ISSUANCE BY THE OFFICE OF THE PRESS RELEASE WHICH IS THE SUBJECT OF
THIS LITIGATION, AND THE TEXT OF WHICH APPEARS IN THE MARGIN.  (FN5) 

RESPONDENTS SUED, CHARGING THAT THE PRESS RELEASE, IN ITSELF AND AS
COUPLED WITH THE CONTEMPORANEOUS NEWS REPORTS OF SENATORIAL REACTION TO
THE PLAN, DEFAMED THEM TO THEIR INJURY, AND ALLEGING THAT ITS
PUBLICATION AND TERMS HAD BEEN ACTUATED BY MALICE ON THE PART OF
PETITIONER.  PETITIONER DEFENDED, INTER ALIA, ON THE GROUND THAT THE
ISSUANCE OF THE PRESS RELEASE WAS PROTECTED BY EITHER A QUALIFIED OR AN
ABSOLUTE PRIVILEGE.  THE TRIAL COURT OVERRULED THESE CONTENTIONS, AND
INSTRUCTED THE JURY TO RETURN A VERDICT FOR RESPONDENTS IF IT FOUND THE
RELEASE DEFAMATORY.  THE JURY FOUND FOR RESPONDENTS. 

PETITIONER APPEALED, RAISING ONLY THE ISSUE OF ABSOLUTE PRIVILEGE. 
THE JUDGMENT OF THE TRIAL COURT WAS AFFIRMED BY THE COURT OF APPEALS,
WHICH HELD THAT "IN EXPLAINING HIS DECISION (TO SUSPEND RESPONDENTS) TO
THE GENERAL PUBLIC, (PETITIONER)  ...  WENT ENTIRELY OUTSIDE HIS LINE
OF DUTY" AND THAT THUS THE ABSOULTE PRIVILEGE, ASSUMED OTHERWISE TO BE
AVAILABLE, DID NOT ATTACH.  100 U.S. APP. D.C. 319, 244 F.2D 767.  WE
GRANTED CETIORARI, VACATED THE COURT OF APPEALS' JUDGMENT, AND REMANDED
THE CASE "WITH DIRECTIONS TO PASS UPON PETITIONER'S CLAIM OF A
QUALIFIED PRIVILEGE."  355 U.S. 171, 173.  ON REMAND THE COURT OF
APPEALS HELD THAT PRESS RELEASE WAS PROTECTED BY A QUALIFIED PRIVILEGE,
BUT THAT THERE WAS EVIDENCE FROM WHICH A JURY COULD REASONABLY CONCLUDE
THAT PETITIONER HAD ACTED MALICIOUSLY, OR HAD SPOKEN WITH LACK OF
REASONABLE GROUNDS FOR BELIEVING THAT HIS STATEMENT WAS TRUE, AND THAT
EITHER CONCLUSION WOULD DEFEAT THE QUALIFIED PRIVILEGE.  ACCORDINGLY IT
REMANDED THE CASE TO THE DISTRICT COURT FOR RETRIAL.  103 U.S. APP.
D.C. 176, 256 F.2D 890.  AT THIS POINT PETITIONER AGAIN SOUGHT, AND WE
AGAIN GRANTED CERTIORARI, 358 U.S. 917, TO DETERMINE WHETHER IN THE
CIRCUMSTANCES OF THIS CASE PETITIONER'S CLAIM OF ABSOLUTE PRIVILEGE
SHOULD HAVE STOOD AS A BAR TO MAINTENANCE OF THE SUIT DESPITE THE
ALLEGATIONS OF MALICE MADE IN THE COMPLAINT. 

THE LAW OF PRIVILEGE AS A DEFENSE BY OFFICERS OF GOVERNMENT TO CIVIL
DAMAGE SUITS FOR DEFAMATION AND KINDRED TORTS HAS IN LARGE PART BEEN OF
JUDICIAL MAKING, ALTHOUGH THE CONSTITUTION ITSELF GIVES AN ABSOLUTE
PRIVILEGE TO MEMBERS OF BOTH HOUSES OF CONGRESS IN RESPECT TO ANY
SPEECH, DEBATE, VOTE, REPORT, OR ACTION DONE IN SESSION.  (FN6)  THIS
COURT EARLY HELD THAT JUDGES OF COURTS OF SUPERIOR OR GENERAL AUTHORITY
ARE ABSOLUTELY PRIVILEGED AS RESPECTS CIVIL SUITS TO RECOVER FOR ACTION
TAKEN BY THEM IN THE EXERCISE OF THEIR JUDICIAL FUNCTIONS, IRRESPECTIVE
OF THE MOTIVES WITH WHICH THOSE ACTS ARE ALLEGED TO HAVE BEEN
PERFORMED, BRADLEY V. FISHER, 13 WALL.  335, AND THAT A LIKE IMMUNITY
EXTENDS TO OTHER OFFICERS OF GOVERNMENT WHOSE DUTIES ARE RELATED TO THE
JUDICIAL PROCESS.  YASELLI V. GOFF, 12 F.2D 396, AFF'D PER CURIAM, 275
U.S. 503, INVOLVING A SPECIAL ASSISTANT TO THE ATTORNEY GENERAL.  (FN7)
NOR HAS THE PRIVILEGE BEEN CONFINED TO OFFICERS OF THE LEGISLATIVE AND
JUDICIAL BRANCHES OF THE GOVERNMENT AND EXECUTIVE OFFICERS OF THE KIND
INVOLVED IN YASELLI.  IN SPALDING V. VILAS, 161 U.S. 483, PETITIONER
BROUGHT SUIT AGAINST THE POSTMASTER GENERAL, ALLEGING THAT THE LATTER
HAD MALICIOUSLY CIRCULATED WIDELY AMONG POSTMASTERS, PAST AND PRESENT,
INFORMATION WHICH HE KNEW TO BE FALSE AND WHICH WAS INTENDED TO DECEIVE
THE POSTMASTERS TO THE DETRIMENT OF THE PLAINTIFF.  THIS COURT
SUSTAINED A PLEA BY THE POSTMASTER GENERAL OF ABSOLUTE PRIVILEGE,
STATING THAT (498-499): 

"IN EXERCISING THE FUNCTIONS OF HIS OFFICE, THE HEAD OF AN EXECUTIVE
DEPARTMENT, KEEPING WITHIN THE LIMITS OF HIS AUTHORITY, SHOULD NOT BE
UNDER AN APPREHENSION THAT THE MOTIVES THAT CONTROL HIS OFFICIAL
CONDUCT MAY, AT ANY TIME, BECOME THE SUBJECT OF INQUIRY IN A CIVIL SUIT
FOR DAMAGES.  IT WOULD SERIOUSLY CRIPPLE THE PROPER AND EFFECTIVE
ADMINISTRATION OF PUBLIC AFFAIRS AS ENTRUSTED TO THE EXECUTIVE BRANCH
OF THE GOVERNMENT, IF HE WERE SUBJECTED TO ANY SUCH RESTRAINT.  HE MAY
HAVE LEGAL AUTHORITY TO ACT, BUT HE MAY HAVE SUCH LARGE DISCRETION IN
THE PREMISES THAT IT WILL NOT ALWAYS BE HIS ABSOLUTE DUTY TO EXERCISE
THE AUTHORITY WITH WHICH HE IS INVESTED.  BUT IF HE ACTS, HAVING
AUTHORITY, HIS CONDUCT CANNOT BE MADE THE FOUNDATION OF A SUIT AGAINST
HIM PERSONALLY FOR DAMAGES, EVEN IF THE CIRCUMSTANCES SHOW THAT HE IS
NOT DISAGREEABLY IMPRESSED BY THE FACT THAT HIS ACTION INJURIOUSLY
AFFECTS THE CLAIMS OF PARTICULAR INDIVIDUALS."  (FN8) 

THE REASONS FOR THE RECOGNITION OF THE PRIVILEGE HAVE BEEN OFTEN
STATED.  IT HAS BEEN THOUGHT IMPORTANT THAT OFFICIALS OF GOVERNMENT
SHOULD BE FREE TO EXERCISE THEIR DUTIES UNEMBARRASSED BY THE FEAR OF
DAMAGE SUITS IN RESPECT OF ACTS DONE IN THE COURSE OF THOSE DUTIES -
SUITS WHICH WOULD CONSUME TIME AND ENERGIES WHICH WOULD OTHERWISE BE
DEVOTED TO GOVERNMENTAL SERVICE AND THE THREAT OF WHICH MIGHT
APPRECIABLY INHIBIT THE FEARLESS, VIGOROUS, AND EFFECTIVE
ADMINISTRATION OF POLICIES OF GOVERNMENT.  THE MATTER HAS BEEN
ADMIRABLY EXPRESSED BY JUDGE LEARNED HAND: 

"IT DOES INDEED GO WITHOUT SAYING THAT AN OFFICIAL, WHO IS IN FACT
GUILTY OF USING HIS POWERS TO VENT HIS SPLEEN UPON OTHERS, OR FOR ANY
OTHER PERSONAL MOTIVE NOT CONNECTED WITH THE PUBLIC GOOD, SHOULD NOT
ESCAPE LIABILITY FOR THE INJURIES HE MAY SO CAUSE; AND, IF IT WERE
POSSIBLE IN PRACTICE TO CONFINE SUCH COMPLAINTS TO THE GUILTY, IT WOULD
BE MONSTROUS TO DENY RECOVERY.  THE JUSTIFICATION FOR DOING SO IS THAT
IT IS IMPOSSIBLE TO KNOW WHETHER THE CLAIM IS WELL FOUNDED UNTIL THE
CASE HAS BEEN TRIED, AND THAT TO SUBMIT ALL OFFICIALS, THE INNOCENT AS
WELL AS THE GUILTY, TO THE BURDEN OF A TRIAL AND TO THE INEVITABLE
DANGER OF ITS OUTCOME, WOULD DAMPEN THE ARDOR OF ALL BUT THE MOST
RESOLUTE, OR THE MOST IRRESPONSIBLE, IN THE UNFLINCHING DISCHARGE OF
THEIR DUTIES.  AGAIN AND AGAIN THE PUBLIC INTEREST CALLS FOR ACTION
WHICH MAY TURN OUT TO BE FOUNDED ON A MISTAKE, IN THE FACE OF WHICH AN
OFFICIAL MAY LATER FIND HIMSELF HARD PUT TO IT TO SATISFY A JURY OF HIS
GOOD FAITH.  THERE MUST INDEED BE MEANS OF PUNISHING PUBLIC OFFICERS
WHO HAVE BEEN TRUANT TO THEIR DUTIES; BUT THAT IS QUITE ANOTHER MATTER
FROM EXPOSING SUCH AS HAVE BEEN HONESTLY MISTAKEN TO SUIT BY ANYONE WHO
HAS SUFFERED FROM THEIR ERRORS.  AS IS SO OFTEN THE CASE, THE ANSWER
MUST BE FOUND IN A BALANCE BETWEEN THE EVILS INEVITABLE IN EITHER
ALTERNATIVE.  IN THIS INSTANCE IT HAS BEEN THOUGHT IN THE END BETTER TO
LEAVE UNREDRESSED THE WRONGS DONE BY DISHONEST OFFICERS THAN TO SUBJECT
THOSE WHO TRY TO DO THEIR DUTY TO THE CONSTANT DREAD OF RETALIATION
...  . 

"THE DECISIONS HAVE, INDEED, ALWAYS IMPOSED AS A LIMITATION UPON THE
IMMUNITY THAT THE OFFICIAL'S ACT MUST HAVE BEEN WITHIN THE SCOPE OF HIS
POWERS; AND IT CAN BE ARGUED THAT OFFICIAL POWERS, SINCE THEY EXIST
ONLY FOR THE PUBLIC GOOD, NEVER COVER OCCASIONS WHERE THE PUBLIC GOOD
IS NOT THEIR AIM, AND HENCE THAT TO EXERCISE A POWER DISHONESTLY IS
NECESSARILY TO OVERSTEP ITS BOUNDS.  A MOMENT'S REFLECTION SHOWS,
HOWEVER, THAT THAT CANNOT BE THE MEANING OF THE LIMITATION WITHOUT
DEFEATING THE WHOLE DOCTRINE.  WHAT IS MEANT BY SAYING THAT THE OFFICER
MUST BE ACTING WITHIN HIS POWER CANNOT BE MORE THAN THAT THE OCCASION
MUST BE SUCH AS WOULD HAVE JUSTIFIED THE ACT, IF HE HAD BEEN USING HIS
POWER FOR ANY OF THE PURPOSES ON WHOSE ACCOUNT IT WAS VESTED IN HIM
...  ."  GREGOIRE V. BIDDLE, 177 F.2D 579, 581. 

WE DO NOT THINK THAT THE PRINCIPLE ANNOUNCED IN VILAS CAN PROPERLY BE
RESTRICTED TO EXECUTIVE OFFICERS OF CABINET RANK, AND IN FACT IT NEVER
HAS BEEN SO RESTRICTED BY THE LOWER FEDERAL COURTS.  (FN9)  THE
PRIVILEGE IS NOT A BADGE OR EMOLUMENT OF EXALTED OFFICE, BUT AN
EXPRESSION OF A POLICY DESIGNED TO AID IN THE EFFECTIVE FUNCTIONING OF
GOVERNMENT.  THE COMPLEXITIES AND MAGNITUDE OF GOVERNMENTAL ACTIVITY
HAVE BECOME SO GREAT THAT THERE MUST OF NECESSITY BE A DELEGATION AND
REDELEGATION OF AUTHORITY AS TO MANY FUNCTIONS, AND WE CANNOT SAY THAT
THESE FUNCTIONS BECOME LESS IMPORTANT SIMPLY BECAUSE THEY ARE EXERCISED
BY OFFICERS OF LOWER RANK IN THE EXECUTIVE HIERARCHY.  (FN10) 

TO BE SURE, THE OCCASIONS UPON WHICH THE ACTS OF THE HEAD OF AN
EXECUTIVE DEPARTMENT WILL BE PROTECTED BY THE PRIVILEGE ARE DOUBTLESS
FAR BROADER THAN IN THE CASE OF AN OFFICER WITH LESS SWEEPING
FUNCTIONS.  BUT THAT IS BECAUSE THE HIGHER THE POST, THE BROADER THE
RANGE OF RESPONSIBILITIES AND DUTIES, AND THE WIDER THE SCOPE OF
DISCRETION, IT ENTAILS.  IT IS NOT THE TITLE OF HIS OFFICE BUT THE
DUTIES WITH WHICH THE PARTICULAR OFFICER SOUGHT TO BE MADE TO RESPOND
IN DAMAGES IS ENTRUSTED - THE RELATION OF THE ACT COMPLAINED OF TO
"MATTERS COMMITTED BY LAW TO HIS CONTROL OR SUPERVISION," SPALDING V.
VILAS, SUPRA, AT 498 - WHICH MUST PROVIDE THE GUIDE IN DELINEATING THE
SCOPE OF THE RULE WHICH CLOTHES THE OFFICIAL ACTS OF THE EXECUTIVE
OFFICER WITH IMMUNITY FROM CIVIL DEFAMATION SUITS.    JUDGED BY THESE
STANDARDS, WE HOLD THAT PETITIONER'S PLEA OF ABSOLUTE PRIVILEGE IN
DEFENSE OF THE ALLEGED LIBEL PUBLISHED AT HIS DIRECTION MUST BE
SUSTAINED.  THE QUESTION IS A CLOSE ONE, BUT WE CANNOT SAY THAT IT WAS
NOT AN APPROPRIATE EXERCISE OF THE DISCRETION WITH WHICH AN EXECUTIVE
OFFICER OF PETITIONER'S RANK IS NECESSARILY CLOTHED TO PUBLISH THE
PRESS RELEASE HERE AT ISSUE IN THE CIRCUMSTANCES DISCLOSED BY THIS
RECORD.  PETITIONER WAS THE ACTING DIRECTOR OF AN IMPORTANT AGENCY OF
GOVERNMENT, (FN11) AND WAS CLOTHED BY REDELEGATION WITH "ALL POWERS,
DUTIES, AND FUNCTIONS CONFERRED ON THE PRESIDENT BY TITLE II OF THE
HOUSING AND RENT ACT OF 1947  ...  ."  (FN12)  THE INTEGRITY OF THE
INTERNAL OPERATIONS OF THE AGENCY WHICH HE HEADED, AND THUS HIS OWN
INTEGRITY IN HIS PUBLIC CAPACITY, HAD BEEN DIRECTLY AND SEVERELY
CHALLENGED IN CHARGES MADE ON THE FLOOR OF THE SENATE AND GIVEN WIDE
PUBLICITY; AND WITHOUT HIS KNOWLEDGE CORRESPONDENCE WHICH COULD
REASONABLY BE READ AS IMPLIEDLY DEFENDING A POSITION VERY DIFFERENT
FROM THAT WHICH HE HAD FROM THE BEGINNING TAKEN IN THE MATTER HAD BEEN
SENT TO A SENATOR OVER HIS SIGNATURE AND INCORPORATED IN THE
CONGRESSIONAL RECORD.  THE ISSUANCE OF PRESS RELEASES WAS STANDARD
AGENCY PRACTICE, AS IT HAS BECOME WITH MANY GOVERNMENTAL AGENCIES IN
THESE TIMES.  WE THINK THAT UNDER THESE CIRCUMSTANCES A PUBLICLY
EXPRESSED STATEMENT OF THE POSITION OF THE AGENCY HEAD, ANNOUNCING
PERSONNEL ACTION WHICH HE PLANNED TO TAKE IN REFERENCE TO THE CHARGES
SO WIDELY DISSEMINATED TO THE PUBLIC, WAS AN APPROPRIATE EXERCISE OF
THE DISCRETION WHICH AN OFFICER OF THAT RANK MUST POSSESS IF THE PUBLIC
SERVICE IS TO FUNCTION EFFECTIVELY.  IT WOULD BE AN UNDULY RESTRICTIVE
VIEW OF THE SCOPE OF THE DUTIES OF A POLICY-MAKING EXECUTIVE OFFICIAL
TO HOLD THAT A PUBLIC STATEMENT OF AGENCY POLICY IN RESPECT TO MATTERS
OF WIDE PUBLIC INTEREST AND CONCERN IS NOT ACTION IN THE LINE OF DUTY. 
THAT PETITIONER WAS NOT REQUIRED BY LAW OR BY DIRECTION OF HIS
SUPERIORS TO SPEAK OUT CANNOT BE CONTROLLING IN THE CASE OF AN OFFICIAL
OF POLICY-MAKING RANK, FOR THE SAME CONSIDERATIONS WHICH UNDERLIE THE
RECOGNITION OF THE PRIVILEGE AS TO ACTS DONE IN CONNECTION WITH A
MANDATORY DUTY APPLY WITH EQUAL FORCE TO DISCRETIONARY ACTS AT THOSE
LEVELS OF GOVERNMENT WHERE THE CONCEPT OF DUTY ENCOMPASSES THE SOUND
EXERCISE OF DISCRETIONARY AUTHORITY.  (FN13) 

THE FACT THAT THE ACTION HERE TAKEN WAS WITHIN THE OUTER PERIMETER OF
PETITIONER'S LINE OF DUTY IS ENOUGH TO RENDER THE PRIVILEGE APPLICABLE,
DESPITE THE ALLEGATIONS OF MALICE IN THE COMPLAINT, FOR AS THIS COURT
HAS SAID OF LEGISLATIVE PRIVILEGE: 

"THE CLAIM OF AN UNWORTHY PURPOSE DOES NOT DESTROY THE PRIVILEGE. 
LEGISLATORS ARE IMMUNE FROM DETERRENTS TO THE UNINHIBITED DISCHARGE OF
THEIR LEGISLATIVE DUTY, NOT FOR THEIR PRIVATE INDULGENCE BUT FOR THE
PUBLIC GOOD.  ONE MUST NOT EXPECT UNCOMMON COURAGE EVEN IN
LEGISLATORS.  THE PRIVILEGE WOULD BE OF LITTLE VALUE IF THEY COULD BE
SUBJECTED TO THE COST AND INCONVENIENCE AND DISTRACTIONS OF A TRIAL
UPON A CONCLUSION OF THE PLEADER, OR TO THE HAZARD OF A JUDGMENT
AGAINST THEM BASED UPON A JURY'S SPECULATION AS TO MOTIVES."  TENNEY V.
BRANDHOVE, 341 U.S. 367, 377. 

WE ARE TOLD THAT WE SHOULD FORBEAR FROM SANCTIONING ANY SUCH RULE OF
ABSOLUTE PRIVILEGE LEST IT OPEN THE DOOR TO WHOLESALE OPPRESSION AND
ABUSES ON THE PART OF UNSCRUPULOUS GOVERNMENT OFFICIALS.  IT IS PERHAPS
ENOUGH TO SAY THAT FEARS OF THIS SORT HAVE NOT BEEN REALIZED WITHIN THE
WIDE AREA OF GOVERNMENT WHERE A JUDICIALLY FORMULATED ABSOLUTE
PRIVILEGE OF BROAD SCOPE HAS LONG EXISTED.  IT SEEMS TO US WHOLLY
CHIMERICAL TO SUGGEST THAT WHAT HANGS IN THE BALANCE HERE IS THE
MAINTENANCE OF HIGH STANDARDS OF CONDUCT AMONG THOSE IN THE PUBLIC
SERVICE.  TO BE SURE, AS WITH ANY RULE OF LAW WHICH ATTEMPTS TO
RECONCILE FUNDAMENTALLY ANTAGONISTIC SOCIAL POLICIES, THERE MAY BE
OCCASIONAL INSTANCES OF ACTUAL INJUSTICE WHICH WILL GO UNREDRESSED, BUT
WE THINK THAT PRICE A NECESSARY ONE TO PAY FOR THE GREATER GOOD.  AND
THERE ARE OF COURSE OTHER SANCTIONS THAN CIVIL TORT SUITS AVAILABLE TO
DETER THE EXECUTIVE OFFICIAL WHO MAY BE PRONE TO EXERCISE HIS FUNCTIONS
IN AN UNWORTHY AND IRRESPONSIBLE MANNER.  WE THINK THAT WE SHOULD NOT
BE DETERRED FROM ESTABLISHING THE RULE WHICH WE ANNOUNCE TODAY BY ANY
SUCH REMOTE FOREBODINGS.  REVERSED. 

FN1  PETITIONER WAS APPOINTED ACTING DIRECTOR OF THE AGENCY EFFECTIVE
FEBRUARY 9, 1953.  ON FEBRUARY 5 HE OCCUPIED THAT POSITION BY
DESIGNATION OF THE RETIRING DIRECTOR, WHO WAS ABSENT FROM THE CITY. 

FN2  THIS STATUTE, PART OF THE GENERAL APPROPRIATION ACT OF 1951,
PROVIDED THAT: 

"NO PART OF THE FUNDS OF, OR AVAILABLE FOR EXPENDITURE BY ANY
CORPORATION OR AGENCY INCLUDED IN THIS ACT, INCLUDING THE GOVERNMENT OF
THE DISTRICT OF COLUMBIA, SHALL BE AVAILABLE TO PAY FOR ANNUAL LEAVE
ACCUMULATED BY ANY CIVILIAN OFFICER OR EMPLOYEE DURING THE CALENDAR
YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951  ...
." 

FN3  THE GENERAL ACCOUNTING OFFICE SUBSEQUENTLY RULED THAT THE
PAYMENTS WERE ILLEGAL, AND RESPONDENTS WERE REQUIRED TO RETURN THEM. 
RESPONDENT MADIGAN CHALLENGED THIS DETERMINATION IN THE COURT OF
CLAIMS, WHICH HELD THAT THE PLAN WAS NOT IN VIOLATION OF LAW.  MADIGAN
V. UNITED STATES, 142 CT. CL. 641. 

FN4  THE PLAN WAS REFERRED TO BY VARIOUS SENATORS AS "A HIGHLY
QUESTIONABLE PROCEDURE," A "RAID ON THE FEDERAL TREASURY," "A
CONSPIRACY TO DEFRAUD THE GOVERNMENT OF FUNDS," "A NEW RACKET," AND AS
"DEFINITELY INVOLVING CRIMINAL ACTION."  IT WAS SUGGESTED THAT IT MIGHT
CONSTITUTE "A CONSPIRACY BY THE HEAD OF AN AGENCY TO DEFRAUD THE
GOVERNMENT OF MONEY," AND THAT "IT IS HIGHLY IRREGULAR, IF NOT ACTUALLY
IMMORAL, FOR THE HEADS OF AGENCIES TO USE ANY SUCH DEVICE  ...  ."  99
CONG. REC. 868-871. 

FN5  "WILLIAM G. BARR, ACTING DIRECTOR OF RENT STABILIZATION TODAY
SERVED NOTICE OF SUSPENSION ON THE TWO OFFICIALS OF THE AGENCY WHO IN
JUNE 1950 WERE RESPONSIBLE FOR THE PLAN WHICH ALLOWED 53 OF THE
AGENCY'S 2,681 EMPLOYEES TO TAKE THEIR ACCUMULATED ANNUAL LEAVE IN
CASH. 

"MR. BARR'S APPOINTMENT AS ACTING DIRECTOR BECOMES EFFECTIVE MONDAY,
FEBRUARY 9, 1953, AND THE SUSPENSION OF THESE EMPLOYEES WILL BE HIS
FIRST ACT OF DUTY.  THE EMPLOYEES ARE JOHN J. MADIGAN, DEPUTY DIRECTOR
FOR ADMINISTRATION, AND LINDA MATTEO, DIRECTOR OF PERSONNEL. 

"'IN JUNE 1950,' MR. BARR STATED, 'MY POSITION IN THE AGENCY WAS NOT
ONE OF AUTHORITY WHICH WOULD HAVE PERMITTED ME TO STOP THE ACTION. 
FURTHERMORE, I DID NOT KNOW ABOUT IT UNTIL IT WAS ALMOST COMPLETED. 

"'WHEN I DID LEARN THAT CERTAIN EMPLOYEES WERE RECEIVING CASH ANNUAL
LEAVE SETTLEMENTS AND BEING RETURNED TO AGENCY EMPLOYMENT ON A
TEMPORARY BASIS, I SPECIFICALLY NOTIFIED THE EMPLOYEES UNDER MY
SUPERVISION THAT IF THEY APPLIED FOR SUCH CASH SETTLEMENTS I WOULD
DEMAND THEIR RESIGNATIONS AND THE RECORD WILL SHOW THAT MY IMMEDIATE
EMPLOYEES COMPLIED WITH MY REQUEST. 

"'WHILE I WAS ADVISED THAT THE ACTION WAS LEGAL, I TOOK THE POSITION
THAT IT VIOLATED THE SPIRIT OF THE THOMAS AMENDMENT AND I VIOLENTLY
OPPOSED IT.  MONDAY, FEBRUARY 9TH, WHEN MY APPOINTMENT AS ACTING
DIRECTOR BECOMES EFFECTIVE, WILL BE THE FIRST TIME MY POSITION IN THE
AGENCY HAS PERMITTED ME TO TAKE ANY ACTION ON THIS MATTER, AND THE
SUSPENSION OF THESE EMPLOYEES WILL BE THE FIRST OFFICIAL ACT I SHALL
TAKE.' 

"MR. BARR ALSO REVEALED THAT HE HAS WRITTEN TO SENATOR JOSEPH
MCCARTHY, CHAIRMAN OF THE COMMITTEE ON GOVERNMENT OPERATIONS, AND TO
REPRESENTATIVE JOHN PHILLIPS, CHAIRMAN OF THE HOUSE SUBCOMMITTEE ON
INDEPENDENT OFFICES APPROPRIATIONS, REQUESTING AN OPPORTUNITY TO BE
HEARD ON THE ENTIRE MATTER." 

FN6  U.S. CONST., ART. I, SEC. 6.  SEE KILBOURN V. THOMPSON, 103 U.S.
168. 

FN7  SEE ALSO COOPER V. O'CONNOR, 69 APP. D.C. 100, 99 F.2D 135;
COMPARE BROWN V. SHIMABUKURO, 73 APP. D.C. 194, 118 F.2D 17. 

FN8  THE COMMUNICATION IN SPALDING V. VILAS WAS NOT DISTRIBUTED TO
THE GENERAL PUBLIC, BUT ONLY TO A PARTICULAR SEGMENT THEREOF WHICH HAD
A SPECIAL INTEREST IN THE SUBJECT MATTER.  STATEMENTS ISSUED AT THE
DIRECTION OF CABINET OFFICERS AND DISSEMINATED TO THE PRESS IN THE FORM
OF PRESS RELEASES HAVE ALSO BEEN ACCORDED AN ABSOLUTE PRIVILEGE, SO
LONG AS THEIR CONTENTS AND THE OCCASION FOR THEIR ISSUANCE RELATE TO
THE DUTIES AND FUNCTIONS OF THE PARTICULAR DEPARTMENT.  MELLON V.
BREWER, 57 APP. D.C. 126, 18 F.2D 168; GLASS V. ICKES, 73 APP. D.C. 3,
117 F.2D 273. 

FN9  AS TO SUITS FOR DEFAMATION SEE, E.G., TAYLOR V. GLOTFELTY, 201
F.2D 51; SMITH V. O'BRIEN, 66 APP. D.C. 387, 88 F.2D 769; DE ARNAUD V.
AINSWORTH, 24 APP. D.C. 167; FARR V. VALENTINE, 38 APP. D.C. 413;
UNITED STATES TO USE OF PARRAVICINO V. BRUNSWICK, 63 APP. D.C. 65, 69
F.2D 383; CARSON V. BEHLEN, 136 F. SUPP. 222; TINKOFF V. CAMPBELL, 86
F. SUPP. 331; MILES V. MCGRATH, 4 F. SUPP. 603.  SEE ALSO, AS TO OTHER
TORTS, JONES V. KENNEDY, 73 APP. D.C. 292, 121 F.2D 40; ADAMS V. HOME
OWNERS' LOAN CORP., 107 F.2D 139; GREGOIRE V. BIDDLE, SUPRA; DE BUSK V.
HARVIN, 212 F.2D 143; LANG V. WOOD, 67 APP. D.C. 287, 92 F.2D 211. 

FN10  SEE THE STRIKING DESCRIPTION IN CUMMINGS AND MCFARLAND, FEDERAL
JUSTICE (1937), PP. 80-81, QUOTED IN COOPER V. O'CONNOR, SUPRA, 69 APP.
D.C. 100, 107, 99 F.2D 135, 142, N. 28, OF THE OFFICE OF ATTORNEY
GENERAL OF THE UNITED STATES IN THE EARLY DAYS OF THE REPUBLIC: 

"NOT ONLY WERE THERE NO RECORDS BUT THE GOVERNMENT PROVIDED NEITHER
AN OFFICE NOR CLERICAL ASSISTANCE.  AS FAR BACK AS DECEMBER 1791,
ATTORNEY GENERAL RANDOLPH, THROUGH PRESIDENT WASHINGTON, WITHOUT
SUCCESS HAD URGED CONGRESS TO PROVIDE A CLERK.  PRESIDENT MADISON, WHEN
IT BECAME EVIDENT THAT RESIDENCE AT WASHINGTON HAD GREATLY INCREASED
THE ATTORNEY GENERAL'S LABOR, IN 1816 URGED THAT HE BE SUPPLIED WITH
'THE USUAL APPURTENANCES TO A PUBLIC OFFICE.'  A BILL TO PROVIDE
OFFICES AND A CLERK CAME TO THE SENATE FLOOR ON JANUARY 10, 1817  ...
.  THIRTY YEARS HAD PASSED SINCE THE FEDERAL GOVERNMENT WAS FIRST
ORGANIZED.  NOW, CONGRESS PROVIDED OFFICES IN THE TREASURY AND A CLERK
AT $1,000 A YEAR, WITH AN ADDITIONAL SMALL CONTINGENT FUND OF $500 FOR
SUCH ESSENTIALS AS STATIONERY, FUEL, AND 'A BOY TO ATTEND THE MENIAL
DUTIES.'" 

FN11  THE RECORD INDICATES THAT IN 1950 THE OFFICE OF HOUSING
EXPEDITER HAD SOME 2,500 EMPLOYEES. 

FN12  61 STAT. 193.  SEE 16 FED. REG. 7630. 

FN13  COMPARE UNITED STATES V. MACDANIEL, 7 PET. 1, 14; UNITED STATES
V. BIRDSALL, 233 U.S. 223, 230-231. 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN THE REVERSAL OF THIS JUDGMENT BUT BRIEFLY SUMMARIZE MY
REASONS BECAUSE THEY ARE NOT ALTOGETHER THE SAME AS THOSE STATED IN THE
OPINION OF MR. JUSTICE HARLAN. 

THE PETITIONER BARR, WHILE ACTING AS DIRECTOR OF THE OFFICE OF RENT
STABILIZATION, A UNITED STATES GOVERNMENT AGENCY, ISSUED A PRESS
RELEASE IN WHICH HE GAVE REASONS WHY HE INTENDED TO SUSPEND THE
RESPONDENTS MATTEO AND MADIGAN, WHO WERE ALSO OFFICERS OF THE AGENCY. 
THERE IS SOME INDICATION IN THE RECORD THAT THERE WAS AN AFFIRMATIVE
DUTY ON MR. BARR TO GIVE PRESS RELEASES LIKE THIS, BUT HOWEVER THAT MAY
BE IT IS CLEAR THAT HIS ACTION WAS FORBIDDEN NEITHER BY AN ACT OF
CONGRESS NOR BY ANY GOVERNMENTAL RULE DULY PROMULGATED AND IN FORCE. 
IT IS ALSO CLEAR THAT THE SUBJECT MATTER DISCUSSED IN THE RELEASE WAS
GERMANE TO THE PROPER FUNCTIONING OF THE RENT STABILIZATION AGENCY AND
MR. BARR'S DUTIES IN RELATION TO IT.  IN FACT, AT THE TIME THE RELEASE
WAS ISSUED CONGRESSIONAL INQUIRIES WERE BEING MADE INTO THE OPERATIONS
OF THE AGENCY AND THE CONTROVERSY UPON WHICH THE THREATENED SUSPENSIONS
WERE BASED, AND THE PRESS RELEASE REVEALED THAT BARR HAD REQUESTED AN
OPPORTUNITY TO TESTIFY BEFORE A CONGRESSIONAL COMMITTEE WITH RESPECT TO
THE WHOLE DISPUTE. 

THE EFFECTIVE FUNCTIONING OF A FREE GOVERNMENT LIKE OURS DEPENDS
LARGELY ON THE FORCE OF AN INFORMED PUBLIC OPINION.  THIS CALLS FOR THE
WIDEST POSSIBLE UNDERSTANDING OF THE QUALITY OF GOVERNMENT SERVICE
RENDERED BY ALL ELECTIVE OR APPOINTED PUBLIC OFFICIALS OR EMPLOYEES. 
SUCH AN INFORMED UNDERSTANDING DEPENDS, OF COURSE, ON THE FREEDOM
PEOPLE HAVE TO APPLAUD OR TO CRITICIZE THE WAY PUBLIC EMPLOYEES DO
THEIR JOBS, FROM THE LEAST TO THE MOST IMPORTANT. 

MR. BARR WAS PECULIARLY WELL QUALIFIED TO INFORM CONGRESS AND THE
PUBLIC ABOUT THE RENT STABILIZATION AGENCY.  SUBJECTING HIM TO LIBEL
SUITS FOR CRITICIZING THE WAY THE AGENCY OR ITS EMPLOYEES PERFORM THEIR
DUTIES WOULD CERTAINLY ACT AS A RESTRAINT UPON HIM.  SO FAR AS I AM
CONCERNED, IF FEDERAL EMPLOYEES ARE TO BE SUBJECTED TO SUCH RESTRAINTS
IN REPORTING THEIR VIEWS ABOUT HOW TO RUN THE GOVERNMENT BETTER, THE
RESTRAINT WILL HAVE TO BE IMPOSED EXPRESSLY BY CONGRESS AND NOT BY THE
GENERAL LIBEL LAWS OF THE STATES OR OF THE DISTRICT OF COLUMBIA.*  HOW
FAR THE CONGRESS ITSELF COULD GO IN BARRING FEDERAL OFFICIALS AND
EMPLOYEES FROM DISCUSSING PUBLIC MATTERS CONSISTENTLY WITH THE FIRST
AMENDMENT IS A QUESTION WE NEED NOT REACH IN THIS CASE.  IT IS ENOUGH
FOR ME HERE THAT THE PRESS RELEASE WAS NEITHER UNAUTHORIZED NOR PLAINLY
BEYOND THE SCOPE OF MR. BARR'S OFFICIAL BUSINESS, BUT INSTEAD RELATED
MORE OR LESS TO GENERAL MATTERS COMMITTED BY LAW TO HIS CONTROL AND
SUPERVISION.  SEE SPALDING V. VILAS, 161 U.S. 483, 493, 498-499. 

*THIS CASE CONCERNS DISTRICT OF COLUMBIA LAW.  IN A COMPANION CASE,
HOWARD V. LYONS, POST, P. 593, THE COURT REJECTS AN ATTEMPT TO HOLD A
FEDERAL EMPLOYEE LIABLE UNDER THE LIBEL LAW OF MASSACHUSETTS. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE PRINCIPAL OPINION IN THIS CASE PURPORTS TO LAUNCH THE COURT ON A
BALANCING PROCESS IN ORDER TO RECONCILE THE INTEREST OF THE PUBLIC IN
OBTAINING FEARLESS EXECUTIVE PERFORMANCE AND THE INTEREST OF THE
INDIVIDUAL IN HAVING REDRESS FOR DEFAMATION.  EVEN ACCEPTING FOR THE
MOMENT THAT THESE ARE THE PROPER INTERESTS TO BE BALANCED, THE ULTIMATE
DISPOSITION IS NOT THE RESULT OF A BALANCE.  ON THE ONE HAND, THE
PRINCIPAL OPINION SETS UP A VAGUE STANDARD UNDER WHICH NO GOVERNMENT
EMPLOYEE CAN TELL WITH ANY CERTAINTY WHETHER HE WILL RECEIVE ABSOLUTE
IMMUNITY FOR HIS ACTS.  ON THE OTHER HAND, IT HAS NOT GIVEN EVEN THE
SLIGHTEST CONSIDERATION TO THE INTEREST OF THE INDIVIDUAL WHO IS
DEFAMED.  IT IS A COMPLETE ANNIHILATION OF HIS INTEREST.    I COULD
UNDERSTAND IT - THOUGH I COULD NOT AGREE - IF THE COURT ADOPTED A BROAD
ABSOLUTE PRIVILEGE FOR CERTAIN CLASSES OF GOVERNMENT OFFICIALS, OR
INDEED FOR THE ENTIRE EXECUTIVE, BY BROADLY EXTENDING SPALDING V.
VILAS, 161 U.S. 483.  AT LEAST THAT RESULT WOULD YIELD CERTAINTY BY
ALLOWING GOVERNMENT OFFICIALS TO KNOW IN ADVANCE WHETHER THEY MIGHT
ISSUE ABSOLUTELY PRIVILEGED STATEMENTS.  BUT THE OPINION'S TEST SETS NO
STANDARD TO GUIDE EXECUTIVE CONDUCT.  AS THE GOVERNMENT ACKNOWLEDGED ON
ORAL ARGUMENT, CONGRESS, WHEN IT CREATES EXECUTIVE AGENCIES, ALMOST
NEVER EXPRESSLY AUTHORIZES THE NEW AGENCY TO ISSUE PRESS RELEASES AS
PART OF ITS FUNCTION.  NOR DOES IT DECREE WHICH EMPLOYEES OF THE NEW
AGENCY WILL HAVE SUCH DUTIES AND WHICH WILL NOT.  BY NECESSITY,
THEREFORE, THE DECISION WILL REQUIRE A DE NOVO APPRAISAL OF ALMOST
EVERY CHARGE OF DEFAMATION BY A GOVERNMENT OFFICIAL.  THE RECORDS WILL
PROBABLY BE NO MORE SATISFACTORY THAN THE ONE NOW BEFORE US - WITH
LITTLE MORE THAN BALD ASSERTIONS THAT A SPECIFIC OFFICIAL HAS THE POWER
TO DO WHAT RESULTED IN THE DEFAMATION.  THE PRINCIPAL OPINION CANNOT
EVEN SAY THAT BARR'S POSITION AUTHORIZED THE PRESS RELEASE; THE MOST IT
CAN AND DOES SAY IS THAT IT CANNOT SAY THAT THE RELEASE WAS NOT AN
APPROPRIATE EXERCISE OF DISCRETION BY BARR IN THIS PRECISE SITUATION,
ANTE, P. 574.  THIS CREATES A PRESUMPTION THAT THE CHALLENGED ACTION IS
WITHIN THE OFFICER'S SCOPE OF DUTY UNLESS THE PLAINTIFF CAN PROVE
OTHERWISE.  SINCE IT HAS BEEN ADMITTED THAT, AS IN THIS CASE, THESE
DUTIES ARE RARELY ENUMERATED, AN EXECUTIVE ASSERTION ON THE OFFICIAL'S
BEHALF MAY PLACE AN IMPOSSIBLE BURDEN OF PROOF ON THE PLAINTIFF SEEKING
TO AVOID THE DEFENSE OF ABSOLUTE PRIVILEGE.  BY THIS UNUSUAL APPROACH,
THE TRADITIONAL RULE THAT IT IS THE DEFENDANT WHO MUST SUSTAIN HIS
AFFIRMATIVE DEFENSE OF PRIVILEGE - AND NOT THE PLAINTIFF WHO MUST
NEGATE THAT DEFENSE - IS APPARENTLY DISREGARDED.  (FN1)

                        I. 

THE HISTORY OF THE PRIVILEGES CONFERRED UPON THE THREE BRANCHES OF
GOVERNMENT IS A STORY OF UNEVEN DEVELOPMENT.  ABSOLUTE LEGISLATIVE
PRIVILEGE DATES BACK TO AT LEAST 1399.  (FN2)  THIS PRIVILEGE IS GIVEN
TO CONGRESS IN THE UNITED STATES CONSTITUTION (FN3) AND TO STATE
LEGISLATURES IN THE CONSTITUTIONS OF ALMOST ALL OF THE STATES OF THE
UNION.  (FN4)  THE ABSOLUTE IMMUNITY ARISING OUT OF JUDICIAL
PROCEEDINGS EXISTED AT LEAST AS EARLY AS 1608 IN ENGLAND.  (FN5) 

BUT WHAT OF THE EXECUTIVE PRIVILEGE?  APPARENTLY, THE EARLIEST
ENGLISH CASE PRESENTING THE PROBLEM OF IMMUNITY OUTSIDE THE LEGISLATIVE
AND JUDICIAL BRANCHES OF GOVERNMENT IS SUTTON V. JOHNSTONE, 1 T.R. 493,
DECIDED IN 1786.  THERE, THE PLAINTIFF, CAPTAIN OF A WARSHIP, SUED THE
COMMANDER-IN-CHIEF OF HIS SQUADRON FOR CHARGING PLAINTIFF, MALICIOUSLY
AND WITHOUT PROBABLE CAUSE, WITH DISOBEDIENCE OF ORDERS AND PUTTING HIM
UNDER ARREST AND FORCING HIM TO FACE A COURT-MARTIAL.  THE COURT OF
EXCHEQUER TOOK JURISDICTION OF THE CASE BUT WAS REVERSED, 1 T.R.  510,
ON THE GROUND THAT PURELY MILITARY MATTERS WERE NOT WITHIN THE
COGNIZANCE OF THE CIVIL COURTS.  (FN6)  DURING THE NEXT CENTURY SEVERAL
OTHER MILITARY CASES WERE DECIDED.  (FN7) 

IN CHATTERTON V. SECRETARY OF STATE FOR INDIA, (1895) 2 Q.B. 189, THE
DEFENDANT HAD BEEN APPRISED THAT HIS ACTION WITH RESPECT TO THE
PLAINTIFF WOULD BE MADE THE SUBJECT OF A PARLIAMENTARY INQUIRY.  IN THE
COMMUNICATION ALLEGED TO BE LIBELOUS, THE DEFENDANT TOLD HIS UNDER
SECRETARY WHAT ANSWER SHOULD BE MADE IF THE QUESTION WERE ASKED HIM IN
PARLIAMENT.  THE COURT AFFIRMED DISMISSAL OF THE COMPLAINT RELYING ON
FRASER ON THE LAW OF LIBEL AND SLANDER (1ST ED.), P. 95, WHERE THE
AUTHOR, WITH NO CITATIONS, OBSERVED, AFTER RELATING THE HISTORY OF THE
MILITARY CASES: 

"FOR REASONS OF PUBLIC POLICY THE SAME PROTECTION WOULD, NO DOUBT, BE
GIVEN TO ANYTHING IN THE NATURE OF AN ACT OF STATE, E.G., TO EVERY
COMMUNICATION RELATING TO STATE MATTERS MADE BY ONE MINISTER TO
ANOTHER, OR TO THE CROWN."  (FN8) 

THIS WAS THE ACTUAL BIRTH OF EXECUTIVE PRIVILEGE IN ENGLAND. 

SUCH WAS THE STATE OF ENGLISH LAW WHEN, THE NEXT YEAR, THIS COURT
DECIDED SPALDING V. VILAS, SUPRA.  IN GRANTING THE POSTMASTER GENERAL
ABSOLUTE IMMUNITY FOR "MATTERS COMMITTED BY LAW TO HIS CONTROL OR
SUPERVISION," THIS COURT RELIED EXCLUSIVELY ON THE JUDICIAL PRIVILEGE
CASES AND THE ENGLISH MILITARY CASES.  THUS, LEAVING ASIDE THE MILITARY
CASES, WHICH ARE UNIQUE, THE EXECUTIVE PRIVILEGE IN DEFAMATION ACTIONS
WOULD APPEAR TO BE A JUDICIAL CREATURE OF LESS THAN 65 YEARS'
EXISTENCE.  YET, WITHOUT STATUTE, THIS RELATIVELY NEW PRIVILEGE IS
BEING EXTENDED TO OPEN THE POSSIBILITY OF ABSOLUTE PRIVILEGE FOR
INNUMERABLE GOVERNMENT OFFICIALS. 

IT MAY BE ASSUMED, ARGUENDO, THAT A GOVERNMENT EMPLOYEE SHOULD HAVE
ABSOLUTE IMMUNITY WHEN ACCORDING TO HIS DUTY HE MAKES INTERNAL REPORTS
TO HIS SUPERIOR OR TO ANOTHER UPON HIS SUPERIOR'S ORDER.  CF. TAYLOR V.
GLOTFELTY, 201 F.2D 51; FARR V. VALENTINE, 38 APP. D.C.  413; DEARNAUD
V. AINSWORTH, 24 APP. D.C. 167.  THIS MIGHT BE A PRACTICAL NECESSITY OF
GOVERNMENT THAT WOULD FIND ITS JUSTIFICATION IN THE NEED FOR A FREE
FLOW OF INFORMATION WITHIN EVERY EXECUTIVE DEPARTMENT.  IT MAY NOT BE
UNREASONABLE TO ASSUME THAT IF A MALICIOUSLY FALSE LIBEL IS UTTERED IN
AN INTERNAL REPORT, IT WILL BE RECOGNIZED AS SUCH AND DISCREDITED
WITHOUT FURTHER DISSEMINATION. 

SPALDING V. VILAS, SUPRA, PRESENTS ANOTHER SITUATION IN WHICH
ABSOLUTE PRIVILEGE MAY BE JUSTIFIED.   THERE THE COURT WAS DEALING WITH
THE POSTMASTER GENERAL - A CABINET OFFICER PERSONALLY RESPONSIBLE TO
THE PRESIDENT OF THE UNITED STATES FOR THE OPERATION OF ONE OF THE
MAJOR DEPARTMENTS OF GOVERNMENT.  CF. GLASS V. ICKES, 73 APP. D.C. 3,
117 F.2D 273; MELLON V. BREWER, 57 APP. D.C. 126, 18 F.2D 168.  THE
IMPORTANCE OF THEIR POSITIONS IN GOVERNMENT AS POLICYMAKERS FOR THE
CHIEF EXECUTIVE AND THE FACT THAT THEY HAVE THE EXPRESSED TRUST AND
CONFIDENCE OF THE PRESIDENT WHO APPOINTED THEM AND TO WHOM THEY ARE
PERSONALLY AND DIRECTLY RESPONSIBLE SUGGEST THAT THE ABSOLUTE
PROTECTION PARTAKES OF PRESIDENTIAL IMMUNITY.  PERHAPS THE SPALDING V.
VILAS RATIONALE WOULD REQUIRE THE EXTENSION OF SUCH ABSOLUTE IMMUNITY
TO OTHER GOVERNMENT OFFICIALS WHO ARE APPOINTED BY THE PRESIDENT AND
ARE DIRECTLY RESPONSIBLE TO HIM IN POLICY MATTERS EVEN THOUGH THEY DO
NOT HOLD CABINET POSITIONS.  (FN9)  BUT THIS EXTENSION IS NOT NOW
BEFORE US, SINCE IT IS CLEAR THAT PETITIONER BARR WAS NOT APPOINTED BY
THE PRESIDENT NOR WAS HE DIRECTLY RESPONSIBLE TO THE PRESIDENT.  BARR
WAS EXERCISING POWERS ORIGINALLY DELEGATED BY THE PRESIDENT TO THE
DIRECTOR OF ECONOMIC STABILIZATION WHO REDELEGATED THEM TO THE DIRECTOR
OF RENT STABILIZATION.  (FN10)  AND IT IS NOT CONTENDED THAT PETITIONER
WAS UNDER ANY ORDER TO ISSUE A STATEMENT IN THIS MATTER. 

I WOULD NOT EXTEND SPALDING V. VILAS TO COVER PUBLIC STATEMENTS OF
LESSER OFFICIALS.  RELEASES TO THE PUBLIC FROM THE EXECUTIVE BRANCH OF
GOVERNMENT IMPLY FAR GREATER DANGERS TO THE INDIVIDUAL CLAIMING TO HAVE
BEEN DEFAMED THAN DO INTERNAL LIBELS.  FIRST, OF COURSE, A PUBLIC
STATEMENT - ESPECIALLY ONE ARGUABLY LIBELOUS - IS NORMALLY INTENDED FOR
AND REACHES A LARGER AUDIENCE THAN AN INTERNALLY COMMUNICATED REPORT. 
EVEN IF THE RELEASE CAN LATER BE SHOWN LIBELOUS, IT IS MOST UNUSUAL FOR
A LIBELED PERSON TO OBTAIN THE SAME HEARING THAT WAS AVAILABLE FOR THE
ORIGINAL PRESS RELEASE.  SECOND, A RELEASE IS COMMUNICATED TO A PUBLIC
IN NO POSITION TO EVALUATE ITS ACCURACY; WHERE THE REPORT IS MADE
INTERNALLY, THE SUPERIOR IS USUALLY IN A POSITION TO DO SO.  IF THE
REPORT IS FALSE, THE SUPERIOR CAN UNDO MUCH OF THE HARM OF THE REPORT
BY COUNTERMANDING IT OR HALTING ITS SPREAD. 

GIVING OFFICIALS BELOW CABINET OR EQUIVALENT RANK QUALIFIED PRIVILEGE
FOR STATEMENTS TO THE PUBLIC WOULD IN NO WAY HAMPER THE INTERNAL
OPERATION OF THE EXECUTIVE DEPARTMENT OF GOVERNMENT, NOR WOULD IT
UNDULY SUBORDINATE THE INTEREST OF THE INDIVIDUAL IN OBTAINING REDRESS
FOR THE PUBLIC DEFAMATION UTTERED AGAINST HIM.  CF. COLPOYS V. GATES,
73 APP. D.C. 193, 118 F.2D 16. 

                                             II. 

THE FOREGOING DISCUSSION ACCEPTED FOR THE PURPOSE OF ARGUMENT THE
MAJORITY'S STATEMENT OF THE INTERESTS INVOLVED HERE.  BUT AS SO OFTEN
HAPPENS IN BALANCING CASES, THE WRONG INTERESTS ARE BEING BALANCED. 
CF. BARENBLATT V. UNITED STATES, ANTE, P. 134 (DISSENTING OPINION). 
THIS IS NOT A CASE WHERE THE ONLY INTEREST IS IN PLAINTIFF'S OBTAINING
REDRESS OF A WRONG.  THE PUBLIC INTEREST IN LIMITING LIBEL SUITS
AGAINST OFFICERS IN ORDER THAT THE PUBLIC MIGHT BE ADEQUATELY INFORMED
IS PARALLELED BY ANOTHER INTEREST OF EQUAL IMPORTANCE; THAT OF
PRESERVING THE OPPORTUNITY TO CRITICIZE THE ADMINISTRATION OF OUR
GOVERNMENT AND THE ACTION OF ITS OFFICIALS WITHOUT BEING SUBJECTED TO
UNFAIR - AND ABSOLUTELY PRIVILEGED - RETORTS.  IF IT IS IMPORTANT TO
PERMIT GOVERNMENT OFFICIALS ABSOLUTE FREEDOM TO SAY ANYTHING THEY WISH
IN THE NAME OF PUBLIC INFORMATION, IT IS AT LEAST AS IMPORTANT TO
PRESERVE AND FOSTER PUBLIC DISCUSSION CONCERNING OUR GOVERNMENT AND ITS
OPERATION. 

IT IS CLEAR THAT PUBLIC DISCUSSION OF THE ACTION OF THE GOVERNMENT
AND ITS OFFICIALS IS ACCORDED NO MORE THAN QUALIFIED PRIVILEGE.  IN
MOST STATES, EVEN THAT PRIVILEGE IS FURTHER RESTRICTED TO SITUATIONS IN
WHICH THE SPEAKER IS ACCURATE AS TO HIS FACTS AND WHERE THE CLAIMED
DEFAMATION RESULTS FROM CONCLUSIONS OR OPINIONS BASED ON THOSE FACTS. 
ONLY IN A MINORITY OF STATES IS A PUBLIC CRITIC OF GOVERNMENT EVEN
QUALIFIEDLY PRIVILEGED WHERE HIS FACTS ARE WRONG.  (FN11)  THUS, AT
BEST, A PUBLIC CRITIC OF THE GOVERNMENT HAS A QUALIFIED PRIVILEGE.  YET
HERE THE COURT HAS GIVEN SOME AMORPHOUS GROUP OF OFFICIALS - WHO HAVE
THE MOST DIRECT AND PERSONAL CONTACT WITH THE PUBLIC - AN ABSOLUTE
PRIVILEGE WHEN THEIR AGENCY OR THEIR ACTION IS CRITICIZED.  IN THIS
SITUATION, IT WILL TAKE A BRAVE PERSON TO CRITICIZE GOVERNMENT
OFFICIALS KNOWING THAT IN REPLY THEY MAY LIBEL HIM WITH IMMUNITY IN THE
NAME OF DEFENDING THE AGENCY AND THEIR OWN POSITION.  THIS EXTENSION OF
SPALDING V. VILAS CAN ONLY HAVE THE ADDED EFFECT OF DETERRING THE
DESIRABLE PUBLIC DISCUSSION OF ALL ASPECTS OF OUR GOVERNMENT AND THE
CONDUCT OF ITS OFFICIALS.  IT WILL SANCTIFY THE POWERFUL AND SILENCE
DEBATE.  THIS IS A MUCH MORE SERIOUS DANGER THAN THE POSSIBILITY THAT A
GOVERNMENT OFFICIAL MIGHT OCCASIONALLY BE CALLED UPON TO DEFEND HIS
ACTIONS AND TO RESPOND IN DAMAGES FOR A MALICIOUS DEFAMATION. 

    III. 

THE PRINCIPAL OPINION, WHILE ATTEMPTING TO BALANCE WHAT IT THINKS ARE
THE FACTORS TO BE WEIGHED, HAS NOT EFFECTUATED THE GOAL FOR WHICH IT
ORIGINALLY STROVE.  RATHER, ITS RESULT HAS BEEN AN UNCERTAIN STANDARD
WHOSE EFFECT CAN UNFOLD ONLY ON A CASE-TO-CASE BASIS, AND WHICH DOES
NOT PROVIDE A GUIDE FOR EXECUTIVE CONDUCT.  BUT MORE IMPORTANT, THE
OPINION HAS SET OUT THE WRONG INTERESTS AND BY ITS EXTENSION OF
ABSOLUTE PRIVILEGE IN THIS CASE HAS SERIOUSLY WEAKENED ANOTHER GREAT
PUBLIC INTEREST - HONEST AND OPEN DISCUSSION AND CRITICISM OF OUR
GOVERNMENT. 

I WOULD AFFIRM. 

FN1  SEE, E.G., RESTATEMENT, TORTS, SEC. 613, AND PROSSER, TORTS (2D
ED. 1955), 629 AND CASES CITED. 

FN2  SEE VEEDER, ABSOLUTE IMMUNITY IN DEFAMATION:  LEGISLATIVE AND
EXECUTIVE PROCEEDINGS, 10 COL. L. REV. 131, 132.  SEE ALSO TENNEY V.
BRANDHOVE, 341 U.S. 367, 372. 

FN3  U.S. CONST., ART. I, SEC. 6. 

FN4  SEE TENNEY V. BRANDHOVE, 341 U.S. 367, 375, N. 5. 

HOWEVER, THIS IMMUNITY HAS NOT BEEN EXTENDED TO INFERIOR DELIBERATIVE
BODIES.  AS TO CITY COUNCILS, SEE, E.G., MILLS V. DENNY, 245 IOWA 584,
63 N.W.2D 222; GREENWOOD V. COBBEY, 26 NEB.  449, 42 N.W. 413; IVIE V.
MINTON, 75 ORE.  483, 147 P. 395; BUT CF. TANNER V. GAULT, 20 OHIO APP.
243, 153 N.E. 124.  SEE ALSO WEBER V. LANE, 99 MO. APP. 69, 71 S.W.
1099 (BOARD OF ALDERMEN); BRADFORD V. CLARK, 90 ME. 298, 38 A. 229
(TOWN MEETING); SMITH V. HIGGINS, 16 GRAY (MASS.) 251 (TOWN MEETING). 

FN5  FLOYD V. BARKER, 12 CO. REP. 23.  SEE ALSO THE KING V. SKINNER,
LOFFT 55.  AN EXCELLENT HISTORY OF THE DEVELOPMENT OF THIS PRIVILEGE
MAY BE FOUND IN VEEDER, ABSOLUTE IMMUNITY IN DEFAMATION:  JUDICIAL
PROCEEDINGS, 9 COL. L. REV. 463.  FOR THE DEVELOPMENT OF THIS PRIVILEGE
IN THE UNITED STATES, SEE BRADLEY V. FISHER, 13 WALL.  335. 

FN6  THIS CONCLUSION WAS JUSTIFIED ON THE FOLLOWING BASIS: 

"COMMANDERS, IN A DAY OF BATTLE, MUST ACT UPON DELICATE SUSPICIONS;
UPON THE EVIDENCE OF THEIR OWN EYE; THEY MUST GIVE DESPERATE COMMANDS;
THEY MUST REQUIRE INSTANTANEOUS OBEDIENCE.  IN CASE OF A GENERAL
MISBEHAVIOUR, THEY MAY BE FORCED TO SUSPEND SEVERAL OFFICERS, AND PUT
OTHERS IN THEIR PLACES. 

"A MILITARY TRIBUNAL IS CAPABLE OF FEELING ALL THESE CIRCUMSTANCES,
AND UNDERSTANDING THAT THE FIRST, SECOND, AND THIRD PART OF A SOLDIER
IS OBEDIENCE.  BUT WHAT CONDITION WILL A COMMANDER BE IN, IF, UPON THE
EXERCISING OF HIS AUTHORITY, HE IS LIABLE TO BE TRIED BY A COMMON LAW
JUDICATURE? 

     *         *         *         *         * 

"THE PERSON UNJUSTLY ACCUSED IS NOT WITHOUT HIS REMEDY.  HE HAS THE
PROPEREST AMONG MILITARY MEN.  REPARATION IS DONE TO HIM BY AN
ACQUITTAL.  AND HE WHO ACCUSED HIM UNJUSTLY IS BLASTED FOR EVER, AND
DISMISSED THE SERVICE."  1 T.R., AT 549-550. 

THE HOUSE OF LORDS AFFIRMED.  1 BRO. P.C. 76. 

FN7  IN HOME V. BENTINCK, 2 B.&B. 130 (1820), THE COURT UPHELD A
PRIVILEGE ASSERTED BY THE DEFENDANT AGAINST PRODUCING IN COURT THE
DOCUMENT ALLEGED TO CONTAIN THE LIBEL.  THIS EFFECTIVELY FORECLOSED THE
ACTION.  SEE ALSO DICKSON V. THE EARL OF WILTON, 1 F.&F. 419 (1859);
KEIGHLY V. BELL, 4 F.&F. 763 (1866); DAWKINS V. LORD F. PAULET, L.R. 5
Q.B. 94 (1869); GRANT V. SECRETARY OF STATE FOR INDIA, L.R. 2 C.P.D.
445 (1877).  THOUGH THIS LAST CASE WAS A SUIT AGAINST A CIVIL OFFICER,
IT AROSE OUT OF A MILITARY SITUATION.    FN8  IN 1895 THE SECRETARY OF
STATE FOR INDIA WAS AN IMPORTANT FIGURE IN THE GOVERNMENT AND WAS A
MEMBER OF THE CABINET.  THE STATESMAN'S YEAR-BOOK (1895) 10. 

THROUGHOUT THESE YEARS, SUITS WERE BROUGHT AGAINST MEMBERS OF THE
EXECUTIVE BRANCHES OF THE BRITISH GOVERNMENT BUT WERE DISMISSED ON THE
THEORY THAT THE OFFICER HAD ACTED SOLELY AS AN AGENT FOR THE GOVERNMENT
AND THEREFORE WAS NOT PERSONALLY LIABLE.  E.G., MACBEATH V. HALDIMAND,
1 T.R. 172 (1786); GIDLEY V. LORD PALMERSTON, 3 B.&B. 275 (1822). 

FN9  THIS MIGHT WELL, FOR EXAMPLE, INCLUDE BARR'S SUPERIOR IN 1953 -
THE DIRECTOR OF ECONOMIC STABILIZATION. 

FN10  BARR'S POSITION AS DEPUTY DIRECTOR WAS SUCH, ON THE DATE OF THE
LIBEL, THAT HE RECOGNIZED THAT HE WAS NOT THEN ENTITLED TO SUSPEND OR
FIRE THE RESPONDENTS AND COULD NOT DO SO UNTIL SEVERAL DAYS LATER. 
(THE GOVERNMENT ASSERTED ON ORAL ARGUMENT THAT THE FULL POWERS OF THE
DIRECTOR WOULD DEVOLVE UPON ANYONE WHO - BY VIRTUE OF HIS SUPERIORS'
LEAVING TOWN - WAS IN FACT THE HIGHEST RANKING MEMBER OF THE AGENCY AT
THE MOMENT.  IT WAS IN THIS LIGHT THAT BARR WAS "ACTING" DIRECTOR ON
THE DATE OF THE LIBEL.)  EVEN AFTER BARR OFFICIALLY BECAME ACTING
DIRECTOR ON FEBRUARY 9, 1953, THE GOVERNMENT ADMITTED THAT THE DIRECTOR
OF ECONOMIC STABILIZATION "COULD HAVE" DIRECTED BARR EITHER TO MAKE OR
NOT TO MAKE PRESS RELEASES.  WHEN BARR TOOK ACTION AGAINST RESPONDENTS,
THEY APPEALED THE DECISION TO THE DIRECTOR OF ECONOMIC STABILIZATION
AND ULTIMATELY WERE REINSTATED. 

FN11  AN EXTENSIVE COMPILATION OF WHICH STATES ADHERE TO EACH VIEW
MAY BE FOUND IN NOEL, DEFAMATION OF PUBLIC OFFICERS AND CANDIDATES, 49
COL. L. REV. 875, 896-897, N. 102-106. 

MR. JUSTICE BRENNAN, DISSENTING.* 

*REPORTER'S NOTE:  THIS OPINION APPLIES ALSO TO NO. 57, HOWARD V.
LYONS ET AL., POST, P. 593. 

I THINK IT IS DEMONSTRABLE THAT THE SOLUTION OF MR. JUSTICE HARLAN'S
OPINION TO THE QUESTION WHETHER AN ABSOLUTE PRIVILEGE SHOULD BE ALLOWED
IN THESE CASES IS NOT JUSTIFIED BY THE CONSIDERATIONS OFFERED TO
SUPPORT IT, AND UNNECESSARILY DEPRIVES THE INDIVIDUAL CITIZEN OF ALL
REDRESS AGAINST MALICIOUS DEFAMATION.  SURELY THE OPINION MUST
RECOGNIZE THE EXISTENCE OF THE DEEP-ROOTED POLICY OF THE COMMON LAW
GENERALLY TO PROVIDE REDRESS AGAINST DEFAMATION.  BUT THE OPINION IN
SWEEPING TERMS EXTINGUISHES THAT REMEDY, IF THE DEFAMATION IS COMMITTED
BY A FEDERAL OFFICIAL, BY ERECTING THE BARRIER OF AN ABSOLUTE
PRIVILEGE.  IN MY VIEW, ONLY A QUALIFIED PRIVILEGE IS NECESSARY HERE,
AND THAT IS ALL I WOULD AFFORD THE OFFICIALS.  A QUALIFIED PRIVILEGE
WOULD BE THE MOST THE LAW WOULD ALLOW PRIVATE CITIZENS UNDER COMPARABLE
CIRCUMSTANCES.  (FN1)  IT WOULD PROTECT THE GOVERNMENT OFFICER UNLESS
IT APPEARED ON TRIAL THAT HIS COMMUNICATION WAS (A) DEFAMATORY, (B)
UNTRUE, AND (C) "MALICIOUS."  (FN2)  WE WRITE ON ALMOST A CLEAN SLATE
HERE, AND EVEN IF SPALDING V. VILAS, 161 U.S. 483, ALLOWS A CABINET
OFFICER THE DEFENSE OF AN ABSOLUTE PRIVILEGE IN DEFAMATION SUITS, (FN3)
I SEE NO WARRANT FOR EXTENDING ITS DOCTRINE TO THE EXTENT DONE -
APPARENTLY TO INCLUDE EVERY OFFICIAL HAVING SOME COLOR OF DISCRETION TO
UTTER COMMUNICATIONS TO CONGRESS OR THE PUBLIC.  AS JUDGE MAGRUDER
POINTED OUT BELOW, 250 F.2D 912, 915, PRESENT APPLICATIONS OF THE
DOCTRINE OF ABSOLUTE PRIVILEGE OF PUBLIC OFFICIALS ARE NARROWLY
CONFINED, (FN4) AND I THINK IN THE LIGHT OF THE CONSIDERATIONS INVOLVED
VERY RIGHTLY SO.  BUT MR. JUSTICE HARLAN'S APPROACH SEEMS TO CLOTHE
WITH IMMUNITY THE MOST OBSCURE SUBFOREMAN ON AN ARSENAL PRODUCTION LINE
WHO HAS BEEN DELEGATED AUTHORITY TO HIRE AND FIRE AND WHO MALICIOUSLY
DEFAMES ONE HE DISCHARGES. 

A QUALIFIED PRIVILEGE, AS I HAVE DESCRIBED, WOULD, IN GIVING THE
OFFICIAL PROTECTION AGAINST THE CONSEQUENCES OF HIS HONEST MISTAKES,
GIVE HIM ALL THE PROTECTION HE COULD PROPERLY CLAIM.  AS IS QUOTED, IF
THAT WERE ALL THAT THERE WERE TO THE MATTER, IT WOULD BE INDEED
"MONSTROUS" TO GRANT THE ABSOLUTE DEFENSE AND PRECLUDE ALL EXAMINATION
OF THE MATTER AT THE SUIT OF A CITIZEN CLAIMING LEGAL INJURY.  BUT WHAT
MORE IS INVOLVED?  THE OPINION'S POSITION IS SIMPLY THAT THERE ARE
CERTAIN SOCIETAL INTERESTS IN RELIEVING FEDERAL OFFICIALS FROM JUDICIAL
INQUIRY INTO THEIR MOTIVES THAT OUTWEIGH ALL INTEREST IN AFFORDING
RELIEF.  THERE IS ADOPTED JUDGE LEARNED HAND'S STATEMENT OF THIS ADDED
FACTOR THAT IS SAID TO MAKE AN ABSOLUTE PRIVILEGE IMPERATIVE:  "IT IS
IMPOSSIBLE TO KNOW WHETHER THE CLAIM IS WELL FOUNDED UNTIL THE CASE HAS
BEEN TRIED, AND THAT TO SUBMIT ALL OFFICIALS, THE INNOCENT AS WELL AS
THE GUILTY, TO THE BURDEN OF A TRIAL AND TO THE INEVITABLE DANGER OF
ITS OUTCOME, WOULD DAMPEN THE ARDOR OF ALL BUT THE MOST RESOLUTE, OR
THE MOST IRRESPONSIBLE, IN THE UNFLINCHING DISCHARGE OF THEIR DUTIES." 
GREGOIRE V. BIDDLE, 177 F.2D 579, 581.  IN THE FIRST PLACE, PROFESSORS
HARPER AND JAMES HAVE, I THINK, SQUARELY MET AND REFUTED THAT ARGUMENT
ON ITS OWN TERMS: "WHERE THE CHARGE IS ONE OF HONEST MISTAKE WE EXEMPT
THE OFFICER BECAUSE WE DEEM THAT AN ACTUAL HOLDING OF LIABILITY WOULD
HAVE WORSE CONSEQUENCES THAN THE POSSIBILITY OF AN ACTUAL MISTAKE
(WHICH UNDER THE CIRCUMSTANCES WE ARE WILLING TO CONDONE).  BUT IT IS
STRETCHING THE ARGUMENT PRETTY FAR TO SAY THAT THE MERE INQUIRY INTO
MALICE WOULD HAVE WORSE CONSEQUENCES THAN THE POSSIBILITY OF ACTUAL
MALICE (WHICH WE WOULD NOT, FOR A MINUTE, CONDONE).  SINCE THE DANGER
THAT OFFICIAL POWER WILL BE ABUSED IS GREATEST WHERE MOTIVES ARE
IMPROPER, THE BALANCE HERE MAY WELL SWING THE OTHER WAY."  HARPER AND
JAMES, TORTS (1956), P. 1645.  AND IN THE SECOND PLACE, THE COURTS
SHOULD BE WARY OF ANY ARGUMENT BASED ON THE FEAR THAT SUBJECTING
GOVERNMENT OFFICERS TO THE NUISANCE OF LITIGATION AND THE UNCERTAINTIES
OF ITS OUTCOME MAY PUT AN UNDUE BURDEN ON THE CONDUCT OF THE PUBLIC
BUSINESS.  SUCH A BURDEN IS HARDLY ONE PECULIAR TO PUBLIC OFFICERS;
CITIZENS GENERALLY GO THROUGH LIFE SUBJECT TO THE RISK THAT THEY MAY,
THOUGH IN THE RIGHT, BE SUBJECT TO LITIGATION AND THE POSSIBILITY OF A
MISCARRIAGE OF JUSTICE.  IT IS ONE OF THE GOALS OF A WELL-OPERATING
LEGAL SYSTEM TO KEEP THE BURDEN OF LITIGATION AND THE RISKS OF SUCH
MISCARRIAGES TO A MINIMUM; IN THIS AREA, WHICH IS GOVERNED BY FEDERAL
LAW, PROOF OF MALICE OUTSIDE OF THE BARE FACT OF THE MAKING OF THE
STATEMENT SHOULD BE FORTHCOMING, (FN5) AND SUMMARY JUDGMENT PRACTICE
OFFERS PROTECTION TO THE DEFENDANT; BUT THE WAY TO MINIMIZING THE
BURDENS OF LITIGATION DOES NOT GENERALLY LIE THROUGH THE ABOLITION OF A
RIGHT OF REDRESS FOR AN ADMITTED WRONG.  THE METHOD HAS TOO MUCH OF THE
FLAVOR OF THROWING OUT THE BABY WITH THE BATH - TODAY'S SWEEPING
SOLUTION INSURES THAT GOVERNMENT OFFICIALS OF HIGH AND LOW RANK WILL
NOT BE INVOLVED IN LITIGATION OVER THEIR ALLEGEDLY DEFAMATORY
STATEMENTS, BUT IT ACHIEVES THIS AT THE COST OF LETTING THE CITIZEN WHO
IS DEFAMED EVEN WITH THE WORST MOTIVES GO WITHOUT REMEDY. 

THERE IS AN EVEN MORE BASIC OBJECTION TO THE OPINION.  IT DEALS WITH
LARGE CONCEPTS OF PUBLIC POLICY AND PURPORTS TO BALANCE THE SOCIETAL
INTERESTS INVOLVED IN THEM.  IT DENIES THE DEFAMED CITIZEN A RECOVERY
BY CHARACTERIZING THE POLICY FAVORING ABSOLUTE IMMUNITY AS "AN
EXPRESSION OF A POLICY DESIGNED TO AID IN THE EFFECTIVE FUNCTIONING OF
GOVERNMENT."  THE EXPLANATION IS SAID TO BE THAT IT IS "IMPORTANT THAT
OFFICIALS OF GOVERNMENT SHOULD BE FREE TO EXERCISE THEIR DUTIES
UNEMBARRASSED BY THE FEAR OF DAMAGE SUITS IN RESPECT OF ACTS DONE IN
THE COURSE OF THOSE DUTIES - SUITS WHICH WOULD CONSUME TIME AND
ENERGIES WHICH WOULD OTHERWISE BE DEVOTED TO GOVERNMENTAL SERVICE AND
THE THREAT OF WHICH MIGHT APPRECIABLY INHIBIT THE FEARLESS, VIGOROUS,
AND EFFECTIVE ADMINISTRATION OF POLICIES OF GOVERNMENT."  THIS, I FEAR,
IS A GOSSAMER WEB SELF-SPUN WITHOUT A SCINTILLA OF SUPPORT TO WHICH ONE
CAN POINT.  TO COME TO THIS CONCLUSION, AND TO SHIFT THE LINE FROM THE
ALREADY EXTENSIVE PROTECTION GIVEN THE PUBLIC OFFICER BY THE QUALIFIED
PRIVILEGE DOCTRINE, DEMANDS THE RESOLUTION OF LARGE IMPONDERABLES WHICH
ONE MIGHT HAVE THOUGHT WOULD BE BETTER THE BUSINESS OF THE LEGISLATIVE
BRANCH.  TO WHAT EXTENT IS IT IN THE PUBLIC INTEREST THAT THE EXECUTIVE
BRANCH CARRY ON PUBLICITY CAMPAIGNS IN RELATION TO ITS ACTIVITIES? 
(WITHOUT REVIEWING ALL THE HISTORY, ONE CAN SAY THIS IS A MATTER ON
WHICH CONGRESS AND THE EXECUTIVE HAVE NOT ALWAYS SEEN EYE TO EYE.  SEE
38 STAT. 212, 5 U.S.C. SEC. 54.)  TO WHAT EXTENT DOES FEAR OF
LITIGATION ACTUALLY INHIBIT THE CONDUCT OF OFFICERS IN CARRYING OUT THE
PUBLIC BUSINESS?  TO WHAT EXTENT SHOULD IT? WHERE DOES HEALTHY
ADMINISTRATIVE FRANKNESS AND BOLDNESS SHADE INTO BUREAUCRATIC TYRANNY? 
TO WHAT EXTENT IS SUPERVISION BY AN ADMINISTRATOR'S SUPERIORS EFFECTIVE
IN ASSURING THAT THERE WILL BE LITTLE ABUSE OF A FREEDOM FROM SUIT?  TO
WHAT EXTENT CAN THE REFERRAL OF CONSTITUENT COMPLAINTS BY CONGRESSMEN
TO THE EXECUTIVE AGENCIES (ALREADY MYRIAD IN NUMBER AND QUITE
ROUTINIZED IN PROCESSING) TAKE THE PLACE OF ACTIONS IN THE COURTS OF
LAW IN SECURING THE INJURED CITIZEN REDRESS?  CAN IT BE ASSUMED, AS THE
OPINION APPEARS TO ASSUME, THAT AN ABSOLUTE PRIVILEGE SO BROADLY
ENJOYED WILL NOT BE SUBJECT TO SEVERE ABUSE?  DOES RECENT HISTORY
AFFORD INSTRUCTIVE PARALLELS IN THE EXPERIENCE WITH CONSTITUTIONALLY
RECOGNIZED FORMS OF GOVERNMENTAL PRIVILEGE - SAY THE LEGISLATIVE
PRIVILEGE?  I DO NOT PURPORT TO KNOW THE ANSWERS TO THESE QUESTIONS,
AND I SIMPLY SUBMIT THAT THE NATURE OF THE QUESTIONS THEMSELVES SHOULD
LEAD US TO FORSAKE ANY EFFORT ON OUR OWN TO MODIFY OVER SO WIDE AN AREA
THE LINE THE COMMON LAW GENERALLY INDICATES IS TO BE DRAWN HERE.  THIS
IS PARTICULARLY SO IN AN AREA NOT FORECLOSED BY OUR PREVIOUS CASES, AND
ONE COMBINING THE MAXIMUM EXPOSURE OF THE CITIZEN'S REPUTATION WITH THE
MOST ATTENUATED OF INTEREST IN THE OPERATION OF THE GOVERNMENT. 

THE COURTS, IT MUST BE REMEMBERED, ARE NOT THE ONLY AGENCY FOR
FASHIONING POLICY HERE.  ONE WOULD THINK, IN FACT, IF THE SOLUTION
AFFORDED THROUGH A QUALIFIED PRIVILEGE (WHICH WOULD APPLY BETWEEN
PRIVATE PARTIES UNDER ANALOGOUS CIRCUMSTANCES) (FN6) WERE TO BE
MODIFIED ON THE STRENGTH OF CONSIDERATIONS SUCH AS THOSE DISCUSSED
TODAY, THAT CONGRESS WOULD PROVIDE A MORE APPROPRIATE FORUM FOR THE
DETERMINATION.  THE PRESENCE OF THE IMPONDERABLES I HAVE DISCUSSED,
THEIR POLITICAL FLAVOR, AND THEIR INTIMATE RELATION TO THE
PRACTICALITIES OF GOVERNMENT MANAGEMENT WOULD SUPPORT THIS CONCLUSION. 
IF THE FEARS EXPRESSED MATERIALIZED AND GREAT INCONVENIENCE TO THE
WORKINGS OF THE GOVERNMENT AROSE OUT OF ALLOWING DEFAMATION ACTIONS
SUBJECT TO A SHOWING OF MALICE, CONGRESS MIGHT WELL BE DISPOSED TO
INTERVENE.  AND ITS INTERVENTION MIGHT TAKE A LESS DRASTIC FORM THAN
THE SOLUTION TODAY.  PURSUANT TO AN ACT OF CONGRESS, THE INCONVENIENCE
TO THE GOVERNMENT OFFICIALS MADE DEFENDANTS IN THESE SUITS HAS BEEN
ALLEVIATED THROUGH THE PARTICIPATION OF THE DEPARTMENT OF JUSTICE. 
REV. STAT. SEC. 359, AS AMENDED, 5 U.S.C. SEC. 309; BOOTH V. FLETCHER,
69 APP. D.C. 351, 101 F.2D 676.  CONGRESS MIGHT BE DISPOSED TO
INTERVENE FURTHER AND PAY THE JUDGMENTS RENDERED AGAINST EXECUTIVE
OFFICERS, OR PROVIDE FOR A TORT CLAIMS ACT AMENDMENT TO ENCOMPASS SUCH
ACTIONS, (FN7) ELIMINATING THE OFFICER AS A FORMAL PARTY.  WE OUGHT
NOT, AS I FEAR WE DO TODAY, FOR ALL PRACTICAL PURPOSES FORECLOSE SUCH
CONSIDERATION OF THE PROBLEM BY EXPANDING ON THE COMPARABLE COMMON-LAW
PRIVILEGE AND WHOLLY IMMUNIZING FEDERAL OFFICIALS FROM DEFAMATION SUITS
WHENEVER THEY CAN SHOW THAT THEIR ACT WAS INCIDENTAL TO THEIR JOBS. 
(FN8) 

FN1  PROSSER, TORTS (2D ED. 1955), SEC. 95. 

FN2 ACTUAL "MALICE" IS REQUIRED TO VITIATE A QUALIFIED PRIVILEGE, NOT
SIMPLY THE "CONSTRUCTIVE" MALICE THAT IS INFERRED FROM THE
PUBLICATION.  SEE HARPER AND JAMES, TORTS (1956), SEC. 5.27. 
DEFINITIONS OF ACTUAL "MALICE" ARE ESSAYED IN PROSSER, TORTS (2D ED.
1955), PP. 625-629; HARPER AND JAMES, TORTS (1956), SEC. 5.27.  SEE
RESTATEMENT, TORTS, SECS. 599-605. 

FN3  THE SUIT IN SPALDING SEEMS TO HAVE BEEN AS MUCH, IF NOT MORE, A
SUIT FOR MALICIOUS INTERFERENCE WITH ADVANTAGEOUS RELATIONSHIPS AS A
LIBEL SUIT.  THE COURT REVIEWED THE FACTS AND FOUND NO FALSE
STATEMENT.  SEE 161 U.S., AT 487-493.  THE CASE MAY STAND FOR NO MORE
THAN THE PROPOSITION THAT WHERE A CABINET OFFICER PUBLISHES A
STATEMENT, NOT FACTUALLY INACCURATE, RELATING TO A MATTER WITHIN HIS
DEPARTMENT'S COMPETENCE, HE CANNOT BE CHARGED WITH IMPROPER MOTIVES IN
PUBLICATION.  THE COURT'S OPINION LEANED HEAVILY ON THE FACT THAT THE
CONTENTS OF THE STATEMENT (WHICH WERE NOT ON THEIR FACE DEFAMATORY)
WERE QUITE ACCURATE, IN SUPPORT OF ITS CONCLUSION THAT PUBLISHING THE
STATEMENT WAS WITHIN THE OFFICER'S DISCRETION, FORECLOSING INQUIRY INTO
HIS MOTIVES.  ID., AT 489-493.  DIFFERENT CONSIDERATIONS SUGGEST
THEMSELVES WHERE A STATEMENT IS DEFAMATORY AND UNTRUE; IT IS ONE THING
TO SAY THAT PUBLIC OFFICERS MUST ANSWER AS TO THEIR MOTIVES FOR ANY
OFFICIAL ACTION ADVERSELY AFFECTING PRIVATE INTERESTS AND ANOTHER THAT
THEY MUST AS TO THE PUBLICATION OF DEFAMATORY, UNTRUE MATTER. 

FN4  THE OPINION'S RATIONALE COVERS THE ENTIRE FEDERAL BUREAUCRACY,
AS COMPARED TO THE NUMERICALLY MUCH LESS EXTENSIVE LEGISLATIVE AND
JUDICIAL PRIVILEGES.  AND AS TO THE FORMER, THE CONSTITUTION SPEAKS,
AND THE RESOLUTION OF THE FACTORS INVOLVED IN THE LATTER IS VERY
OBVIOUSLY WITHIN THE COURT'S SPECIAL COMPETENCE.    FN5  SEE NOTE 2,
SUPRA. 

FN6  SEE THE OPINION OF THE COURT BELOW IN NO. 350, 103 U.S. APP.
D.C. 176, 177, 256 F.2D 890, 891. 

FN7  THEY PRESENTLY ARE EXCLUDED.  28 U.S.C. SEC. 2680(H). 

FN8  THERE IS CONTROVERSY AS TO WHETHER IT WAS MANDATORY UPON
PETITIONER IN NO. 57 TO MAKE HIS REPORT TO THE CONGRESSMEN.  IT IS NOT
CONTENDED THAT IT WAS MANDATORY FOR HIM TO USE THE WORDS HE DID, AND
ONLY IF THIS WERE SO, UNDER MY APPROACH, COULD THERE POSSIBLY BE AN
ABSOLUTE DEFENSE.  SEE FARMERS EDUCATIONAL & COOPERATIVE UNION V. WDAY,
INC., ANTE, PP. 525, 531.   MR. JUSTICE STEWART, DISSENTING. 

MY BROTHER HARLAN'S OPINION CONTAINS, IT SEEMS TO ME, A LUCID AND
PERSUASIVE ANALYSIS OF THE PRINCIPLES THAT SHOULD GUIDE DECISION IN
THIS TROUBLESOME AREA OF LAW.  WHERE I PART COMPANY IS IN THE
APPLICATION OF THESE PRINCIPLES TO THE FACTS OF THE PRESENT CASE. 

I CANNOT AGREE THAT THE ISSUANCE BY THE PETITIONER OF THIS PRESS
RELEASE WAS "ACTION IN THE LINE OF DUTY."  THE STATEMENT TO THE PRESS
(SET OUT IN NOTE 5 OF MR. JUSTICE HARLAN'S OPINION) DID NOT SERVE TO
FURTHER ANY AGENCY FUNCTION.  INSTEAD, IT REPRESENTED A PERSONALLY
MOTIVATED EFFORT ON THE PETITIONER'S PART TO DISASSOCIATE HIMSELF FROM
THE ALLEGED CHICANERY WITH WHICH THE AGENCY HAD BEEN CHARGED. 

BY PUBLICIZING THE ACTION WHICH HE INTENDED TO TAKE WHEN HE BECAME
PERMANENT ACTING DIRECTOR, AND HIS PAST ATTITUDE AS A LESSER
FUNCTIONARY, THE PETITIONER WAS SEEKING ONLY TO DEFEND HIS OWN
INDIVIDUAL REPUTATION.  THIS WAS NOT WITHIN, BUT BEYOND "THE OUTER
PERIMETER OF PETITIONER'S LINE OF DUTY." 
..END :














HOWARD V. LYONS 360 U.S. 593 


NO. 57.  ARGUED DECEMBER 8-9, 1958.  - RESTORED TO THE CALENDAR FOR
REARGUMENT DECEMBER 15, 1958.  - REARGUED APRIL 20-21, 1959.  - DECIDED
JUNE 29, 1959.  - 250 F.2D 912, REVERSED. 


WHILE PETITIONER WAS A CAPTAIN IN THE NAVY AND COMMANDER OF THE BOSTON
NAVAL SHIPYARD, HE WITHDREW RECOGNITION OF THE FEDERAL EMPLOYEES
VETERANS ASSOCIATION, OF WHICH RESPONDENTS WERE OFFICERS, AND SENT AN
OFFICIAL REPORT OF HIS ACTION, RECITING HIS DISSATISFACTION WITH THE
ACTIVITIES OF THE ASSOCIATION, TO THE CHIEF OF THE BUREAU OF SHIPS AND
THE CHIEF OF INDUSTRIAL RELATIONS OF THE DEPARTMENT OF THE NAVY.  IN
ACCORDANCE WITH THE POLICY AND USUAL PRACTICE OF THE NAVY, HE ALSO SENT
COPIES OF THE REPORT TO THE MEMBERS OF THE MASSACHUSETTS CONGRESSIONAL
DELEGATION.  RESPONDENTS SUED HIM IN A FEDERAL DISTRICT COURT FOR
LIBEL, ALLEGING MALICE.  IN DEFENSE, HE PLEADED ABSOLUTE PRIVILEGE. 
HELD: 

1.  THE VALIDITY OF PETITIONER'S CLAIM OF ABSOLUTE PRIVILEGE IN THE
PERFORMANCE OF HIS DUTIES AS AN OFFICER OF THE FEDERAL GOVERNMENT MUST
BE JUDGED BY FEDERAL STANDARDS, TO BE FORMULATED BY THE COURTS IN THE
ABSENCE OF LEGISLATIVE ACTION BY CONGRESS.  P. 597. 

2.  ON THE RECORD IN THIS CASE, IT APPEARS THAT THE SENDING OF COPIES
OF THE REPORT TO THE MASSACHUSETTS CONGRESSIONAL DELEGATION, THE ONLY
PUBLICATION BEFORE THIS COURT, WAS IN THE DISCHARGE OF PETITIONER'S
OFFICIAL DUTIES AND IN RELATION TO MATTERS COMMITTED TO HIM FOR
DETERMINATION.  THEREFORE, HIS PLEA OF ABSOLUTE PRIVILEGE MUST BE
SUSTAINED.  BARR V. MATTEO, ANTE, P. 564.  PP. 597-598. 

HOWARD V. LYONS ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO BARR V. MATTEO, ANTE, P. 564, DECIDED
TODAY.  PETITIONER HOWARD IN 1955 WAS A CAPTAIN IN THE UNITED STATES
NAVY AND COMMANDER OF THE BOSTON NAVAL SHIPYARD.  RESPONDENT LYONS WAS
NATIONAL COMMANDER OF THE FEDERAL EMPLOYEES VETERANS ASSOCIATION, INC.,
AND RESPONDENT MCATEER A LOCAL OFFICER OF THAT ASSOCIATION.  BOTH
RESPONDENTS WERE AT ALL MATERIAL TIMES CIVILIAN EMPLOYEES AT THE BOSTON
NAVAL SHIPYARD, AND FOR SEVERAL YEARS BEFORE SEPTEMBER 8, 1955, THE
ASSOCIATION WAS RECOGNIZED BY THE SHIPYARD AS AN EMPLOYEES'
REPRESENTATIVE GROUP.  ON THAT DATE PETITIONER WITHDREW OFFICIAL
RECOGNITION OF THE ASSOCIATION - AN ACTION WHICH IS NOT HERE
CHALLENGED. 

RESPONDENTS BROUGHT SUIT IN THE MASSACHUSETTS DISTRICT COURT,
INVOKING DIVERSITY JURISDICTION, AND MAKING THE FOLLOWING ALLEGATIONS:
THAT ON SEPTEMBER 8, 1955, PETITIONER CIRCULATED A STATEMENT DEFAMING
THEM; THAT THE STATEMENT PURPORTED TO BE AN OFFICIAL MEMORANDUM TO THE
CHIEF OF THE BUREAU OF SHIPS AND THE CHIEF OF NAVY INDUSTRIAL
RELATIONS, BUT WAS RELEASED BY PETITIONER "OUTSIDE OF HIS OFFICIAL
DUTIES" TO VARIOUS NEWSPAPERS AND WIRE SERVICES AND TO THE MEMBERS OF
THE MASSACHUSETTS DELEGATION IN THE CONGRESS OF THE UNITED STATES; THAT
IN CIRCULATING THE STATEMENT PETITIONER ACTED "MALICIOUSLY, WILFULLY,
WICKEDLY, RECKLESSLY AND FALSELY AND WITH MALICE AFORESIGHT"; AND THAT
THE STATEMENT WAS INTENDED TO AND DID INJURE THE REPUTATION OF
RESPONDENTS. 

A COPY OF THE STATEMENT COMPLAINED OF WAS FILED WITH THE COMPLAINT. 
IT IS IN THE FORM OF AN OFFICIAL REPORT DIRECTED TO THE CHIEF OF THE
BUREAU OF SHIPS AND THE CHIEF OF INDUSTRIAL RELATIONS OF THE DEPARTMENT
OF THE NAVY, RECITING PETITIONER'S DISSATISFACTION WITH THE ACTIVITIES
OF THE FEDERAL EMPLOYEES VETERANS ASSOCIATION AT THE SHIPYARD AND
ANNOUNCING HIS INTENTION TO WITHDRAW THE RECOGNITION PREVIOUSLY
ACCORDED IT.  (FN1) 

PETITIONER ANSWERED, STATING THAT THE STATEMENT COMPLAINED OF WAS IN
FACT AN OFFICIAL COMMUNICATION, AND THAT IN SENDING COPIES OF IT TO THE
MASSACHUSETTS CONGRESSIONAL DELEGATION HE WAS ACTING WITHIN THE SCOPE
OF HIS DUTIES AND PURSUANT TO DEPARTMENT OF THE NAVY POLICY; AND
DENYING THAT OUTSIDE OF HIS OFFICIAL DUTIES HE HAD RELEASED COPIES OF
THE COMMUNICATION TO THE NEWSPAPERS.  HE THEREUPON MOVED FOR SUMMARY
JUDGMENT, ATTACHING TO THE MOTION HIS OWN AFFIDAVIT ESSENTIALLY
REPEATING THE STATEMENTS FROM HIS ANSWER ABOVE SUMMARIZED, AND AN
AFFIDAVIT FROM THE COMMANDANT OF THE FIRST NAVAL DISTRICT.  THAT
AFFIDAVIT STATED THAT THE COMMANDANT WAS PETITIONER'S COMMANDING
OFFICER; THAT THE MAKING OF REPORTS TO THE BUREAU OF SHIPS RELATIVE TO
ANY SIGNIFICANT PERSONNEL ACTION AT THE SHIPYARD WAS ONE OF
PETITIONER'S OFFICIAL DUTIES; THAT ALSO AMONG THOSE DUTIES WAS THE
FURNISHING OF COPIES OF SUCH REPORTS TO THE MASSACHUSETTS CONGRESSIONAL
DELEGATION; AND THAT THE DISSEMINATION OF THE REPORT OF SEPTEMBER 8,
1955, TO THE NEWSPAPERS HAD BEEN MADE THROUGH OFFICIAL CHANNELS AND
APPROVED BY THE ACTING COMMANDANT OF THE FIRST NAVAL DISTRICT. 

THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR PETITIONER, HOLDING
THAT THE UNCONTRADICTED AFFIDAVITS CONCLUSIVELY SHOWED THAT THE
STATEMENT COMPLAINED OF WAS PUBLISHED BY PETITIONER "IN THE DISCHARGE
OF HIS OFFICIAL DUTIES AND IN RELATION TO MATTERS COMMITTED TO HIM FOR
DETERMINATION," AND THAT IT WAS THEREFORE ABSOLUTELY PRIVILEGED.  ON
RESPONDENTS' APPEAL, THE COURT OF APPEALS HELD THAT THE SENDING OF THE
OFFICIAL REPORT TO PETITIONER'S SUPERIOR OFFICERS WAS PROTECTED BY AN
ABSOLUTE PRIVILEGE, AND NOTED THAT RELIANCE ON THE DISSEMINATION TO THE
NEWSPAPERS HAD BEEN ABANDONED BY RESPONDENTS ON APPEAL IN THE FACE OF
PETITIONER'S SWORN STATEMENT THAT HE HAD NOT BEEN RESPONSIBLE FOR THAT
PUBLICATION.  AS TO THE PUBLICATION TO THE MASSACHUSETTS CONGRESSIONAL
DELEGATION, HOWEVER, THE COURT, ONE JUDGE DISSENTING, REFUSED TO ALLOW
MORE THAN A QUALIFIED PRIVILEGE, ALTHOUGH RECOGNIZING THAT "IT IS TRUE
THAT THESE MEMBERS OF CONGRESS DID HAVE AN OFFICIAL INTEREST IN BEING
KEPT ADVISED OF IMPORTANT DEVELOPMENTS IN LABOR RELATIONS AT THE BOSTON
NAVAL SHIPYARD," AND THAT "THE COMMANDER OF THE BOSTON NAVAL SHIPYARD
MIGHT HAVE CONCEIVED IT TO BE A PROPER EXERCISE OF HIS OFFICIAL
FUNCTIONS TO SEE TO IT THAT THE MEMBERS OF CONGRESS SHOULD RECEIVE
COPIES OF SUCH OFFICIAL REPORT  ...  ."  ACCORDINGLY, IT REVERSED THE
JUDGMENT OF THE DISTRICT COURT AND REMANDED THE CASE FOR TRIAL.  250
F.2D 912. 

WE GRANTED CERTIORARI TO CONSIDER PETITIONER'S CONTENTION THAT THE
COURT OF APPEALS HAD ERRED IN FAILING TO RECOGNIZE HIS PLEA OF ABSOLUTE
PRIVILEGE IN RESPECT OF THE PUBLICATION TO MEMBERS OF CONGRESS.  357
U.S. 903.  RESPONDENTS DID NOT CROSS-PETITION FOR CERTIORARI. 

AT THE OUTSET, WE TAKE NOTE OF A QUESTION WHICH THE COURT OF APPEALS,
ON ITS VIEW OF THE CASE, DID NOT FIND IT NECESSARY TO RESOLVE - WHETHER
THE EXTENT OF THE PRIVILEGE IN RESPECT OF CIVIL LIABILITY FOR
STATEMENTS ALLEGEDLY DEFAMATORY UNDER STATE LAW WHICH MAY BE CLAIMED BY
OFFICERS OF THE FEDERAL GOVERNMENT, ACTING IN THE COURSE OF THEIR
DUTIES, IS A QUESTION AS TO WHICH THE FEDERAL COURTS ARE BOUND TO
FOLLOW STATE LAW.  WE THINK THAT THE VERY STATEMENT OF THE QUESTION
DICTATES A NEGATIVE ANSWER.  THE AUTHORITY OF A FEDERAL OFFICER TO ACT
DERIVES FROM FEDERAL SOURCES, AND THE RULE WHICH RECOGNIZES A PRIVILEGE
UNDER APPROPRIATE CIRCUMSTANCES AS TO STATEMENTS MADE IN THE COURSE OF
DUTY IS ONE DESIGNED TO PROMOTE THE EFFECTIVE FUNCTIONING OF THE
FEDERAL GOVERNMENT.  NO SUBJECT COULD BE ONE OF MORE PECULIARLY FEDERAL
CONCERN, AND IT WOULD DENY THE VERY CONSIDERATIONS WHICH GIVE THE RULE
OF PRIVILEGE ITS BEING TO LEAVE DETERMINATION OF ITS EXTENT TO THE
VAGARIES OF THE LAWS OF THE SEVERAL STATES.  CF. CLEARFIELD TRUST CO.
V. UNITED STATES, 318 U.S. 363.  WE HOLD THAT THE VALIDITY OF
PETITIONER'S CLAIM OF ABSOLUTE PRIVILEGE MUST BE JUDGED BY FEDERAL
STANDARDS, TO BE FORMULATED BY THE COURTS IN THE ABSENCE OF LEGISLATIVE
ACTION BY CONGRESS. 

OUR DECISION IN BARR V. MATTEO, ANTE, P. 564, GOVERNS THIS CASE.  AS
HAS BEEN OBSERVED, PETITIONER AND HIS COMMANDING OFFICER BOTH STATED IN
UNCONTRADICTED AFFIDAVITS THAT THE SENDING OF COPIES OF THE REPORT HERE
AT ISSUE TO MEMBERS OF THE MASSACHUSETTS CONGRESSIONAL DELEGATION WAS
PART OF PETITIONER'S OFFICIAL DUTIES.  ALTHOUGH OF COURSE SUCH AN
AVERMENT BY THE DEFENDANT CANNOT FORECLOSE THE COURTS FROM EXAMINATION
OF THE QUESTION, WE THINK THAT THE AFFIDAVIT OF PETITIONER'S COMMANDING
OFFICER, AND A MEMORANDUM OF INSTRUCTIONS ISSUED BY THE SECRETARY OF
THE NAVY WHICH PETITIONER HAS WITH OUR LEAVE FILED IN THIS COURT, (FN2)
PLAINLY SHOW THAT THE DISTRICT COURT WAS CORRECT IN FINDING THAT THE
CIRCULATION OF THE REPORT TO THE MASSACHUSETTS CONGRESSIONAL DELEGATION
WAS "IN THE DISCHARGE OF PETITIONER'S  ...  OFFICIAL DUTIES AND IN
RELATION TO MATTERS COMMITTED TO HIM FOR DETERMINATION."  REVERSED. 

FN1 NO PURPOSE WOULD BE SERVED BY SETTING OUT THE ENTIRE, LENGTHY
REPORT.  IT IS ADEQUATELY SUMMARIZED IN THE COURT OF APPEALS' OPINION
AS FOLLOWS: 

"THIS LETTER ALLEGED THAT PLAINTIFF LYONS BY NAME, AND THE OTHER
PLAINTIFF BY DESCRIPTION, 'EXERCISE A PREDOMINANT INFLUENCE IN THE
ORGANIZATIONAL ACTIVITIES; THAT THE ORGANIZATION HAS BEEN GIVING WIDE
DISTRIBUTION TO A NEWSLETTER OR BULLETIN; THAT THIS BULLETIN HAS BECOME
MORE AND MORE UNFAIRLY CRITICAL OF THE SHIPYARD ADMINISTRATION, FOR THE
PURPOSE OF NOT ONLY THWARTING THE AIMS OF THE SHIPYARD ADMINISTRATION
IN THE ACCOMPLISHMENT OF ITS MISSION, BUT ALSO TO FURTHER PERSONAL AIMS
AND SELF-INTERESTS OF THE INDIVIDUALS IN CONTROL OF THE LABOR
ORGANIZATION; THAT THESE 'EDITORIAL EXPLETIVES' HAVE ADVERSELY AFFECTED
THE GENERAL MORALE OF EMPLOYEES OF THE SHIPYARD, WHO ARE ENTITLED TO BE
PROTECTED AGAINST SUCH 'OVERT SUBVERSION' BY ANY LABOR GROUP 'WHOSE
METHODS AND WHOSE MOTIVES ARE UNETHICAL, UNINHIBITED, AND LACK THE
INTEGRITY OF PURPOSE THAT COULD REASONABLY BE EXPECTED.'"  250 F.2D
912, 913. 

FN2  SECNAV INSTRUCTION 5730.5, ISSUED FEBRUARY 3, 1955, PARAGRAPH
12:  "CONGRESSIONAL NOTIFICATION OF ACTIONS OF INTEREST.  MEMBERS OF
CONGRESS ARE VERY ANXIOUS TO KEEP IN TOUCH WITH WHAT IS GOING ON IN
THEIR RESPECTIVE STATES AND DISTRICTS.  NAVY AGENCIES SHALL KEEP THEM
ADVISED, IF POSSIBLE IN ADVANCE, OF ANY NEW ACTIONS OR CURTAILMENT OF
ACTIONS WHICH MAY AFFECT THEM." 

MR. JUSTICE BLACK CONCURS FOR THE REASONS STATED IN HIS CONCURRING
OPINION IN BARR V. MATTEO, ANTE, P. 576. 

FOR DISSENTING OPINION OF MR. JUSTICE BRENNAN, SEE ANTE, P. 586. 

MR. CHIEF JUSTICE WARREN WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

I CANNOT AGREE THAT CAPTAIN HOWARD'S ACTION IN SENDING A COPY OF HIS
REPORT TO THE MASSACHUSETTS CONGRESSIONAL DELEGATION WAS ABSOLUTELY
PRIVILEGED.  (FN1)  IN ITS ARGUMENT IN THIS CASE, THE GOVERNMENT
CONSISTENTLY DISTINGUISHED THIS CASE FROM BARR V. MATTEO, ANTE, P. 564,
DECIDED TODAY, BY CHARACTERIZING CAPTAIN HOWARD AS A MAN WHO WAS ACTING
UNDER STRICT ORDERS AND WHO HAD NO DISCRETION. 

UNTIL REARGUMENT IN THIS COURT, THE ONLY INDICATIONS THAT IT WAS
MANDATORY FOR CAPTAIN HOWARD TO REPORT MATTERS OF THIS SORT TO CONGRESS
WERE THE BALD ASSERTIONS TO THAT EFFECT IN CAPTAIN HOWARD'S AFFIDAVIT
AND IN THE AFFIDAVIT OF HIS SUPERIOR, ADMIRAL SCHNACKENBERG, IN THE
DISTRICT COURT.  NO NAVAL REGULATION WAS CITED AND NO OTHER AUTHORITY
WAS OFFERED.  IT IS SIGNIFICANT THAT, IN THE SAME AFFIDAVIT, WHEN
CAPTAIN HOWARD WAS EXPLAINING WHY HE HAD TRANSMITTED COPIES OF THE
REPORT TO A SUPERIOR, HE WAS ABLE TO CITE CHAPTER AND VERSE OF THE U.S.
NAVY PUBLIC INFORMATION MANUAL AS AUTHORITY FOR THAT ACTION. 

FOR THE FIRST TIME ON REARGUMENT IN THIS COURT, THE GOVERNMENT
PRODUCED THE LETTER FROM THE SECRETARY OF THE NAVY REFERRED TO IN THE
COURT'S OPINION.  THE PARAGRAPH RELIED ON IS NOTHING MORE THAN A
GENERAL POLICY STATEMENT APPLICABLE ONLY TO "NAVY AGENCIES."  (FN2)
THE LETTER WAS IN NO WAY DIRECTED TOWARD LABOR PROBLEMS - AND THE
QUOTED PORTION IS BUT A FEW LINES IN A FIVE-PAGE LETTER SENT TO A
GENERAL DISTRIBUTION LIST AND APPARENTLY NEVER INSERTED IN THE FEDERAL
REGISTER OR ANY NAVY MANUAL.  OBVIOUSLY, THIS LETTER WAS NOT CITED BY
CAPTAIN HOWARD BECAUSE HE WAS UNAWARE OF ITS EXISTENCE - OR ITS
APPLICABILITY. 

THE SHORT EXPLANATION IS THAT THE CAPTAIN THOUGHT THAT SINCE THE
PLAINTIFFS HAD ATTACKED THE ADMINISTRATION OF THE SHIPYARD BY SENDING
COPIES OF THEIR NEWSLETTERS AND CHARGES TO CONGRESS, HE SHOULD SEND
CONGRESS HIS SIDE OF THE STORY.  THIS HE HAD A RIGHT TO DO BUT IN DOING
SO HE SHOULD HAVE NO GREATER PRIVILEGE THAN HIS CRITIC.  THE PLAINTIFFS
IN THIS CASE AT MOST RECEIVED QUALIFIED PRIVILEGE FOR THEIR COMPLAINTS
TO CONGRESS, (FN3) YET THE CAPTAIN'S ANSWER IS GIVEN ABSOLUTE
PRIVILEGE. 

AS MY DISSENT IN BARR V. MATTEO INDICATES, THE BURDEN OF PROOF IS ON
THE DEFENDANT TO SUSTAIN HIS CLAIM OF PRIVILEGE, ANTE, P. 579.  I DO
NOT READ THIS RECORD AS PLACING A MANDATORY DUTY ON CAPTAIN HOWARD TO
MAKE THE REPORT IN QUESTION TO CONGRESS.  (FN4) 

I WOULD AFFIRM. 

FN1  I AGREE WITH THE COURT IN ITS DETERMINATION THAT FEDERAL LAW
CONTROLS THIS MATTER. 

FN2  "NAVY AGENCIES" IS DEFINED IN PARAGRAPH 2B OF THE SAME LETTER AS
FOLLOWS: 

"THIS TERM INCLUDES THE CIVILIAN EXECUTIVE ASSISTANTS TO THE
SECRETARY, THE NAVAL PROFESSIONAL ASSISTANTS TO THE SECRETARY AND THE
HEADS OF OFFICES AND BOARDS OF THE NAVY DEPARTMENT." 

SURELY IT WAS NEVER INTENDED THAT EVERY NAVAL OFFICER WHO THOUGHT
THAT HE KNEW SOMETHING IN WHICH CONGRESS MIGHT BE INTERESTED, WAS
REQUIRED TO CONTACT CONGRESS DIRECTLY. 

FN3  SEE, E.G., SWEENEY V. HIGGINS, 117 ME. 415, 104 A. 791; TYREE V.
HARRISON, 100 VA. 540, 42 S.E. 295; HANCOCK V. MITCHELL, 83 W. VA. 156,
98 S.E. 65. 

FN4  ON THIS RECORD, I CANNOT BELIEVE THAT CAPTAIN HOWARD WOULD HAVE
BEEN DERELICT IN HIS DUTY IF HE HAD NOT SENT THE REPORT TO CONGRESS -
AND IT HAS NEVER BEEN SUGGESTED THAT SUCH ACTION WOULD HAVE WARRANTED
DISCIPLINARY MEASURES. 
..END :






















UNION PACIFIC RAILROAD CO. V. PRICE 360 U.S. 601 


NO. 414.  ARGUED MARCH 31, 1959.  - DECIDED JUNE 29, 1959.  - 255 F.2D
663, REVERSED AND CAUSE REMANDED. 


CLAIMING THAT RESPONDENT HAD BEEN DISCHARGED BY PETITIONER RAILROAD IN
VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT, HIS UNION, ACTING ON
HIS BEHALF AND WITH HIS CONSENT, SUBMITTED THE GRIEVANCE TO THE
NATIONAL RAILROAD ADJUSTMENT BOARD, WHICH FOUND THAT HIS DISMISSAL WAS
JUSTIFIED.  THEREAFTER, RESPONDENT SUED THE RAILROAD IN A FEDERAL
DISTRICT COURT TO RECOVER DAMAGES FOR WRONGFUL DISMISSAL.  HELD:
RESPONDENT'S SUBMISSION OF HIS GRIEVANCES AS TO THE VALIDITY OF HIS
DISMISSAL TO THE BOARD PRECLUDES HIM FROM SEEKING DAMAGES FOR THAT
DISMISSAL IN A COMMON-LAW ACTION.  PP. 602-617. 

(A)  THE BOARD'S DECISION WAS NOT BASED SOLELY ON THE GROUND THAT THE
RAILROAD HAD FOLLOWED THE PROPER PROCEDURE IN DISCHARGING RESPONDENT
BUT ALSO INCLUDED A DETERMINATION THAT HE WAS DISCHARGED FOR GOOD
CAUSE.  PP. 606-607. 

(B)  THE CLEAR LANGUAGE OF SEC. 3 FIRST (M) OF THE RAILWAY LABOR ACT,
THE SCHEME OF THE ACT, AND ITS LEGISLATIVE HISTORY COMPEL THE
CONCLUSION THAT AN AWARD BY THE BOARD, HOLDING THAT AN EMPLOYEE WAS
PROPERLY DISCHARGED, PRECLUDES HIM FROM RELITIGATING THE SAME ISSUE IN
A COMMON-LAW DAMAGE SUIT.   PP. 608-614. 

(C)  ALTHOUGH AN ENFORCEMENT PROCEEDING AGAINST A NON-COMPLYING
CARRIER UNDER SEC. 3 FIRST (P) AFFORDS A DEFEATED CARRIER SOME
OPPORTUNITY TO RELITIGATE ISSUES DECIDED BY THE BOARD, CONGRESS DID NOT
PROVIDE A SIMILAR OPPORTUNITY FOR A DEFEATED EMPLOYEE.  PP. 614-617. 

UNION PACIFIC RAILROAD CO. V. PRICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIVERSITY COMMON-LAW ACTION BROUGHT BY THE RESPONDENT, A
FORMER EMPLOYEE OF PETITIONER RAILROAD, IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEVADA TO RECOVER DAMAGES FROM THE RAILROAD
FOR ALLEGEDLY WRONGFULLY DISCHARGING HIM IN VIOLATION OF THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN IT AND THE BROTHERHOOD OF RAILROAD
TRAINMEN.  THE VALIDITY OF THE DISCHARGE WAS PREVIOUSLY CHALLENGED UPON
THE SAME GROUNDS BEFORE THE NATIONAL RAILROAD ADJUSTMENT BOARD, FIRST
DIVISION, IN A PROCEEDING BROUGHT BY THE BROTHERHOOD ON RESPONDENT'S
BEHALF UNDER SEC. 3 FIRST (I) OF THE RAILWAY LABOR ACT, (FN1) SEEKING
THE RESPONDENT'S REINSTATEMENT WITH BACK PAY.  THE BOARD RENDERED AN
AWARD IN FAVOR OF THE PETITIONER.  THE QUESTION FOR DECISION HERE IS
WHETHER THE RESPONDENT MAY PURSUE A COMMON-LAW REMEDY FOR DAMAGES FOR
HIS ALLEGEDLY WRONGFUL DISMISSAL AFTER HAVING CHOSEN TO PURSUE THE
STATUTORY REMEDY WHICH RESULTED IN A DETERMINATION BY THE NATIONAL
ADJUSTMENT BOARD THAT HIS DISMISSAL WAS JUSTIFIED. 

THE RESPONDENT WAS EMPLOYED BY PETITIONER AS A SWING BRAKEMAN (AN
EXTRA BRAKEMAN WHO IS NOT A REGULARLY ASSIGNED MEMBER OF A TRAIN CREW)
AND WAS A MEMBER OF THE BROTHERHOOD OF RAILROAD TRAINMEN.   THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE BROTHERHOOD AND THE
PETITIONER CONTAINED TWO PROVISIONS INVOLVED IN THE DISPUTE OVER HIS
DISCHARGE.  ONE PROVISION, ARTICLE 32(B), PROVIDED THAT:  "SWING
BRAKEMEN WILL NOT BE TIED UP NOR RELEASED AT POINTS WHERE SLEEPING AND
EATING ACCOMMODATIONS ARE NOT AVAILABLE."  THE OTHER PROVISION, ARTICLE
33(A), PROVIDED THAT:  "WHEN A TRAINMAN IS SUSPENDED FOR AN ALLEGED
FAULT, NO PUNISHMENT WILL BE FIXED WITHOUT A THOROUGH INVESTIGATION, AT
WHICH THE ACCUSED MAY HAVE A TRAINMAN OF HIS CHOICE PRESENT." 

ON JULY 12, 1949, THE RESPONDENT WAS CALLED TO "DEADHEAD" ON TRAIN
NO. 37 FROM LAS VEGAS, NEVADA, TO NIPTON, CALIFORNIA, AT WHICH POINT HE
WAS TO DETRAIN AND AWAIT ASSIGNMENT TO ANOTHER TRAIN TRAVELING TO LAS
VEGAS.  TRAIN NO. 37 ARRIVED AT NIPTON AT 10:30 P.M., AND THE TRAIN
DISPATCHER ASSIGNED RESPONDENT TO TRAIN NO. X 1622E, WHICH WAS DUE TO
ARRIVE AT NIPTON AROUND 4 A.M., EN ROUTE TO LAS VEGAS.  THE RESPONDENT
COMPLAINED THAT THERE WERE NO FACILITIES AVAILABLE IN NIPTON FOR EATING
OR SLEEPING AND TOLD THE DISPATCHER HE WOULD GO BACK TO LAS VEGAS AND
RETURN AFTER GETTING SOMETHING TO EAT.  THE DISPATCHER REFUSED TO
RELEASE HIM AND ORDERED HIM TO WAIT THE ARRIVAL OF TRAIN X 1622E.  THE
RESPONDENT DISOBEYED THIS INSTRUCTION AND DEADHEADED BACK TO LAS VEGAS
ON A TRAIN WHICH LEFT NIPTON AT 11:10 P.M. 

THE RAILROAD SUSPENDED THE RESPONDENT ON THE MORNING OF JULY 13.  ON
JULY 16 HE RECEIVED A NOTICE TO APPEAR AT 10 A.M. ON JULY 17 BEFORE AN
ASSISTANT SUPERINTENDENT OF THE RAILROAD FOR AN INVESTIGATION.  AT THE
RESPONDENT'S REQUEST THE INVESTIGATION WAS POSTPONED TO THE MORNING OF
JULY 18, AT WHICH TIME THE RESPONDENT REQUESTED A FURTHER POSTPONEMENT
UNTIL HIS REPRESENTATIVE, THE BROTHERHOOD'S LOCAL CHAIRMAN, COULD BE
PRESENT.  A POSTPONEMENT WAS AGAIN GRANTED, UNTIL 2:30 P.M. OF THE
18TH, BUT THE RESPONDENT'S LOCAL CHAIRMAN APPARENTLY WAS STILL NOT
AVAILABLE AT THAT TIME.  WHEN RESPONDENT FAILED TO APPEAR FOR THE 2:30
HEARING, THE ASSISTANT SUPERINTENDENT PROCEEDED WITH THE INVESTIGATION
IN HIS ABSENCE.  THE TESTIMONY OF RAILROAD WITNESSES WAS TAKEN
STENOGRAPHICALLY AND TRANSCRIBED; NO EVIDENCE WAS RECEIVED IN
RESPONDENT'S BEHALF.  ON JULY 24 THE RAILROAD NOTIFIED THE RESPONDENT
THAT HE WAS DISCHARGED. 

THE BROTHERHOOD PROCESSED RESPONDENT'S GRIEVANCE THROUGH THE REQUIRED
MANAGEMENT LEVELS, AND WHEN SETTLEMENT COULD NOT BE REACHED, NOR
AGREEMENT ARRIVED AT FOR A JOINT SUBMISSION TO THE NATIONAL RAILROAD
ADJUSTMENT BOARD, THE BROTHERHOOD, IN JANUARY 1951, FILED AN EX PARTE
SUBMISSION WITH THE BOARD'S FIRST DIVISION.  (FN2)  HEARING WAS WAIVED
BY THE PARTIES AND THE SUBMISSION WAS CONSIDERED ON THE PAPERS FILED BY
THEM.  THE ADJUSTMENT BOARD, ON JUNE 25, 1952, RENDERED ITS AWARD
"CLAIM DENIED," WITH SUPPORTING FINDINGS.  (FN3) 

SOME THREE YEARS AFTER THE FILING OF THE AWARD, THE RESPONDENT, ON
JUNE 6, 1955, BROUGHT THE INSTANT SUIT.  HIS COMPLAINT ALLEGES A CAUSE
OF ACTION PREDICATED ON THE SAME GROUNDS OF ALLEGEDLY WRONGFUL
DISMISSAL IN VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT WHICH HAD
BEEN URGED ON THE ADJUSTMENT BOARD, NAMELY, (1) THAT HE "WAS DISMISSED
WITHOUT CAUSE" AND (2) THAT HE WAS DISMISSED WITHOUT A "THOROUGH
INVESTIGATION" BECAUSE NOT "AFFORDED AN OPPORTUNITY TO HAVE A TRAINMAN
OF HIS CHOICE PRESENT AT THE INVESTIGATION HELD" NOR "AFFORDED A
REASONABLE OPPORTUNITY TO PREPARE HIS DEFENSE," "TO PRESENT HIS
DEFENSE," "TO HAVE WITNESSES PRESENT" OR "TO PARTICIPATE IN HIS OWN
DEFENSE."  AFTER FILING AN ANSWER, THE RAILROAD MOVED FOR SUMMARY
JUDGMENT ON AFFIDAVITS AND OTHER PAPERS ON FILE UPON THE GROUND THAT
"ANY JUDICIALLY ENFORCEABLE CAUSE OF ACTION ARISING FROM THE
TERMINATION OF THE EMPLOYMENT RELATIONSHIP  ...  IS NOW BARRED BY THE
ADJUDICATION AND DETERMINATION OF THE VALIDITY OF SUCH TERMINATION BY
THE NATIONAL RAILROAD ADJUSTMENT BOARD UNDER THE TERMS AND CONDITIONS
OF SAID COLLECTIVE BARGAINING AGREEMENT, AND PURSUANT TO AND IN
CONFORMANCE WITH THE RAILWAY LABOR ACT  ...  ."  THE DISTRICT COURT,
WITHOUT OPINION, GRANTED THE MOTION AND ENTERED SUMMARY JUDGMENT IN
FAVOR OF THE PETITIONER.  THE RESPONDENT APPEALED TO THE COURT OF
APPEALS FOR THE NINTH CIRCUIT, ASSIGNING AS THE SINGLE POINT ON THE
APPEAL THAT THE DISTRICT COURT "ERRED IN HOLDING THAT THE AWARD OF THE
NATIONAL RAILROAD ADJUSTMENT BOARD ENTITLED  ...  THE RAILROAD TO
SUMMARY JUDGMENT."  THE COURT OF APPEALS, ONE JUDGE DISSENTING,
REVERSED, 255 F.2D 663.  ALTHOUGH THE COURT OF APPEALS HELD THAT THE
DISTRICT COURT WOULD BE "WITHOUT JURISDICTION TO ENTERTAIN THE ACTION
IF THE BOARD AWARD REPRESENTS A DETERMINATION ON THE MERITS," ID., AT
666, THE COURT CONCLUDED THAT WHILE THE QUESTION WHETHER THE RAILROAD
WAS ENTITLED TO DISCHARGE THE RESPONDENT "WAS ONE OF THE TWO QUESTIONS
WHICH PRICE SUBMITTED FOR BOARD DETERMINATION," "THE BOARD MADE NO
DETERMINATION ON THE MERITS" BUT DETERMINED ONLY THAT IN "THE MANNER IN
WHICH THE INVESTIGATION WAS CONDUCTED BY THE CARRIER  ...  NONE OF
PRICE'S RIGHTS IN THAT REGARD WAS ABRIDGED," AND HELD THAT THE DISTRICT
COURT THEREFORE HAD JURISDICTION TO ENTERTAIN THE ACTION.  ID., AT 666
667.  WE GRANTED CERTIORARI TO DECIDE THE IMPORTANT QUESTION RAISED BY
THE CASE OF THE INTERPRETATION OF THE RAILWAY LABOR ACT.  358 U.S.
892. 

WE DO NOT AGREE WITH THE COURT OF APPEALS' HOLDING THAT THE BOARD'S
AWARD WAS BASED SOLELY ON ITS DECISION THAT ARTICLE 33(A) WAS NOT
VIOLATED BY THE RAILROAD BECAUSE RESPONDENT'S DISMISSAL FOLLOWED A
"THOROUGH INVESTIGATION."  RATHER WE THINK THE AWARD ALSO REFLECTS THE
BOARD'S DETERMINATION THAT RESPONDENT WAS DISCHARGED FOR GOOD CAUSE. 
THUS, WE AGREE WITH JUDGE HEALY, DISSENTING IN THE COURT OF APPEALS,
THAT ON THE FACE OF THE CUSTOMARILY BRIEF FINDINGS OF THE BOARD (FN4)
IT APPEARS "PLAIN THAT THE BOARD WAS OF OPINION, AND IN SUBSTANCE HELD,
THAT THE ASSERTED VIOLATION BY THE COMPANY OF ARTICLE 32, EVEN IF TRUE,
WOULD NOT SERVE TO JUSTIFY AN EMPLOYEE'S VIOLATION OF DIRECT OPERATING
INSTRUCTIONS AND HIS ABANDONMENT OF HIS POST."  255 F.2D, AT 667-668. 
SINCE THE DISCHARGE COULD BE SET ASIDE BY THE BOARD IF EITHER GROUND OF
THE SUBMISSION WAS SUSTAINED, THE UNQUALIFIED DENIAL OF THE CLAIM
NECESSARILY IMPLIED, WE THINK, THAT THE BOARD DECIDED BOTH GROUNDS
SUBMITTED ADVERSELY TO THE RESPONDENT.  EVEN IF THE PROCEDURE FOLLOWED
BY THE RAILROAD CONSTITUTED A PROPER INVESTIGATION, THE BOARD'S
OUTRIGHT DENIAL OF THE CLAIM IS EXPLICABLE ONLY ON THE GROUND THAT THE
BOARD ALSO HELD THAT ARTICLE 32(B) DID NOT JUSTIFY THE RESPONDENT IN
DISOBEYING THE DISPATCHER'S INSTRUCTION TO REMAIN AT NIPTON.  WE
CONCLUDE THAT BOTH ISSUES WERE DECIDED BY THE BOARD AGAINST THE
RESPONDENT, (FN5) AND THEREFORE REACH THE QUESTION WHETHER THE
RESPONDENT, DESPITE THE ADVERSE DETERMINATION OF THE ADJUSTMENT BOARD,
COULD PURSUE THE COMMON-LAW REMEDY FOR DAMAGES IN THE DISTRICT COURT. 
(FN6) 

CONGRESS HAS SAID IN SEC. 3 FIRST (M) OF THE RAILWAY LABOR ACT (FN7)
THAT THE ADJUSTMENT BOARD'S "AWARDS SHALL BE FINAL AND BINDING UPON
BOTH PARTIES TO THE DISPUTE, EXCEPT INSOFAR AS THEY SHALL CONTAIN A
MONEY AWARD."  RESPONDENT DOES NOT ARGUE THAT A "MONEY AWARD" IS
ANYTHING OTHER THAN AN AWARD DIRECTING THE PAYMENT OF MONEY.  INDEED,
IT WOULD DISTORT THE ENGLISH LANGUAGE TO INTERPRET THAT TERM AS
INCLUDING A REFUSAL TO AWARD A MONEY PAYMENT.  THUS, THE PLAIN LANGUAGE
OF SEC. 3 FIRST (M), ON ITS FACE, IMPORTS THAT CONGRESS INTENDED THAT
THE BOARD'S DISPOSITION OF A GRIEVANCE SHOULD PRECLUDE A SUBSEQUENT
COURT ACTION BY THE LOSING PARTY.  FURTHERMORE, WE HAVE SAID OF THE
RAILWAY LABOR ACT THAT "THE SPECIFICATION OF ONE REMEDY NORMALLY
EXCLUDES ANOTHER."  SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320
U.S. 297, 301.  THUS, OUR DUTY TO GIVE EFFECT TO THE CONGRESSIONAL
PURPOSE COMPELS US TO HOLD THAT THE INSTANT COMMON-LAW ACTION IS
PRECLUDED UNLESS THE OVERALL SCHEME ESTABLISHED BY THE RAILWAY LABOR
ACT AND THE LEGISLATIVE HISTORY CLEARLY INDICATE A CONGRESSIONAL
INTENTION CONTRARY TO THAT WHICH THE PLAIN MEANING OF THE WORDS
IMPORTS.  OUR UNDERSTANDING OF THE STATUTORY SCHEME AND THE LEGISLATIVE
HISTORY, HOWEVER, REINFORCES WHAT THE STATUTORY LANGUAGE ALREADY MAKES
CLEAR, NAMELY, THAT CONGRESS BARRED THE EMPLOYEE'S SUBSEQUENT RESORT TO
THE COMMON-LAW REMEDY AFTER AN ADVERSE DETERMINATION OF HIS GRIEVANCE
BY THE ADJUSTMENT BOARD.  (FN8) 

THE PURPOSE OF THE RAILWAY LABOR ACT WAS TO PROVIDE A FRAMEWORK FOR
PEACEFUL SETTLEMENT OF LABOR DISPUTES BETWEEN CARRIERS AND THEIR
EMPLOYEES TO "INSURE TO THE PUBLIC CONTINUITY AND EFFICIENCY OF
INTERSTATE TRANSPORTATION SERVICE, AND TO PROTECT THE PUBLIC FROM THE
INJURIES AND LOSSES CONSEQUENT UPON ANY IMPAIRMENT OR INTERRUPTION OF
INTERSTATE COMMERCE THROUGH FAILURES OF MANAGERS AND EMPLOYEES TO
SETTLE PEACEABLY THEIR CONTROVERSIES."  H.R. REP. NO. 328, 69TH CONG.,
1ST SESS., P. 1.  CONGRESS DID NOT, HOWEVER, IN THE ORIGINAL 1926 ACT,
CREATE THE NATIONAL RAILROAD ADJUSTMENT BOARD OR MAKE THE USE OF SUCH
AN AGENCY COMPULSORY UPON THE PARTIES; RATHER THE ACT CONTEMPLATED THAT
SETTLEMENT OF DISPUTES WOULD BE ACHIEVED THROUGH "MACHINERY FOR
AMICABLE ADJUSTMENT OF LABOR DISPUTES AGREED UPON BY THE PARTIES  ...
."  S. REP. NO. 606, 69TH CONG., 1ST SESS., P. 4.  CONGRESS, THEREFORE,
PROVIDED THAT ADJUSTMENT BOARDS SHOULD BE "CREATED BY AGREEMENT BETWEEN
ANY CARRIER OR GROUP OF CARRIERS, OR THE CARRIERS AS A WHOLE, OR ITS OR
THEIR EMPLOYEES."  SEC. 3 FIRST OF THE RAILWAY LABOR ACT OF 1926, 44
STAT. 578.  THESE ADJUSTMENT BOARDS, INTENDED FOR USE IN SETTLING WHAT
ARE TERMED MINOR DISPUTES IN THE RAILROAD INDUSTRY, PRIMARILY
GRIEVANCES ARISING FROM THE APPLICATION OF COLLECTIVE BARGAINING
AGREEMENTS TO PARTICULAR SITUATIONS, SEE RAILROAD TRAINMEN V. CHICAGO
RIVER & I.R. CO., 353 U.S. 30, WERE THUS TO BE ESTABLISHED BY VOLUNTARY
AGREEMENT.  CONGRESS, EVEN IN 1926 HOWEVER, RECOGNIZED THAT THE BOARDS
WOULD NOT BE USEFUL IN BRINGING ABOUT INDUSTRIAL PEACE UNLESS THEIR
DECISIONS WERE BINDING ON THE PARTIES.  THUS THE 1926 ACT REQUIRED THAT
AGREEMENTS CREATING ADJUSTMENT BOARDS MUST STIPULATE "THAT DECISIONS OF
ADJUSTMENT BOARDS SHALL BE FINAL AND BINDING ON BOTH PARTIES TO THE
DISPUTE; AND IT SHALL BE THE DUTY OF BOTH TO ABIDE BY SUCH DECISIONS
...  ."  SEC. 3 FIRST (E) OF THE RAILWAY LABOR ACT OF 1926, 44 STAT.
579. 

BUT THE 1926 ACT PROVIDED NO SANCTIONS TO FORCE THE CARRIERS AND
THEIR EMPLOYEES TO MAKE AGREEMENTS ESTABLISHING ADJUSTMENT BOARDS AND
MANY RAILROADS REFUSED TO PARTICIPATE ON SUCH BOARDS OR SO LIMITED
THEIR PARTICIPATION THAT THE BOARDS WERE INEFFECTUAL.  (FN9)  MOREOVER,
THE BOARDS WHICH WERE CREATED WERE COMPOSED OF EQUAL NUMBERS OF
MANAGEMENT AND LABOR REPRESENTATIVES AND DEADLOCKS OVER PARTICULAR
CASES BECAME COMMONPLACE.  SINCE NO PROCEDURE FOR BREAKING SUCH
DEADLOCKS WAS PROVIDED, MANY DISPUTES REMAINED UNSETTLED.  AS REPORTED
TO CONGRESS IN 1934 BY MR. EASTMAN, FEDERAL COORDINATOR OF
TRANSPORTATION:  "ANOTHER DIFFICULTY WITH THE PRESENT LAW (THE 1926
ACT), EVEN WHERE AN ADJUSTMENT BOARD HAS BEEN ESTABLISHED, IS THAT,
ALTHOUGH ITS DECISIONS ARE FINAL AND BINDING UPON BOTH PARTIES, THERE
CAN BE NO CERTAINTY THAT THERE WILL BE A DECISION."  HEARINGS BEFORE
SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 3266, 73D CONG., 2D
SESS., P. 17.  STRIKE THREATS BECAME FREQUENT IN AN ATMOSPHERE OF
MUTUAL RECRIMINATIONS WHICH PRESENTED THE DANGER OF CREATING THE VERY
STRIFE WHICH THE STATUTE HAD BEEN DESIGNED TO AVOID.  MR. EASTMAN
REPORTED TO THE HOUSE RULES COMMITTEE:  "GRIEVANCES ON A NUMBER OF
ROADS HAVE IN THE PAST FEW YEARS ACCUMULATED TO SUCH AN EXTENT THAT THE
ONLY REMEDY THE MEN COULD SEE WAS TO THREATEN A STRIKE AND THUS SECURE
APPOINTMENT BY THE PRESIDENT OF A FACT FINDING BOARD WHICH COULD GO
INTO THE WHOLE SITUATION.  THAT HAS HAPPENED ON SEVERAL OCCASIONS. 
SOME OF THESE GRIEVANCES HAVE ACCUMULATED UP INTO THE HUNDREDS ON THE
VARIOUS ROADS AND WHEN THE SITUATION FINALLY BECAME INTOLERABLE THE MEN
WOULD THREATEN A STRIKE  ...  ."  HEARINGS BEFORE THE HOUSE RULES
COMMITTEE, 73D CONG., 2D SESS., P. 25; SEE ALSO P. 14; SEE ALSO
HEARINGS BEFORE THE SENATE INTERSTATE COMMERCE COMMITTEE, 73D CONG., 2D
SESS., P. 17; AND SEE ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S. 711, 725
726.    THE RAILROAD LABOR ORGANIZATIONS WERE PARTICULARLY
DISSATISFIED.  THEY URGED THAT EFFECTIVE ADJUSTMENT OF GRIEVANCES COULD
BE ATTAINED ONLY BY AMENDMENTS TO THE 1926 ACT THAT WOULD ESTABLISH A
NATIONAL ADJUSTMENT BOARD IN WHICH BOTH CARRIERS AND EMPLOYEES WOULD BE
REQUIRED TO PARTICIPATE, THAT WOULD PERMIT AN EMPLOYEE TO COMPEL A
CARRIER TO SUBMIT A GRIEVANCE TO THE BOARD, THAT WOULD PROVIDE FOR A
NEUTRAL PERSON TO BREAK DEADLOCKS OCCURRING WHEN THE LABOR AND
MANAGEMENT REPRESENTATIVES DIVIDED EQUALLY, AND, FINALLY, THAT WOULD
MAKE AWARDS BINDING ON THE PARTIES AND ENFORCEABLE IN THE COURTS, WHEN
FAVORABLE TO THE EMPLOYEES.  (FN10)  THESE VIEWS PREVAILED IN THE
CONGRESS AND RESULTED IN THE 1934 AMENDMENTS WHICH DRASTICALLY CHANGED
THE SCHEME OF THE ACT.  ACT OF JUNE 21, 1934, 48 STAT. 1185.  (FN11)
THE NATIONAL RAILROAD ADJUSTMENT BOARD WAS CREATED AND THE CARRIERS
WERE REQUIRED TO PARTICIPATE THROUGH REPRESENTATIVES SELECTED BY THEM,
SEC. 3 FIRST (A) THROUGH (G).  THE BOARD IS COMPOSED OF FOUR DIVISIONS
EACH HAVING JURISDICTION OVER DIFFERENT EMPLOYEES AND WHOSE PROCEEDINGS
ARE INDEPENDENT OF ONE ANOTHER, SEC. 3 FIRST (H).  DISPUTES BETWEEN AN
EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER OR CARRIERS GROWING OUT OF
GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION OF AGREEMENTS
MUST BE HANDLED IN THE USUAL MANNER UP TO AND INCLUDING THE CHIEF
OPERATING OFFICERS OF THE CARRIER DESIGNATED TO HANDLE SUCH DISPUTES,
BUT FAILING ADJUSTMENT THE DISPUTES MAY BE REFERRED BY THE PARTIES OR
BY EITHER PARTY TO THE APPROPRIATE DIVISION, SEC. 3 FIRST (I).  UPON
FAILURE OF A DIVISION TO AGREE UPON AN AWARD BECAUSE OF A DEADLOCK OR
INABILITY TO SECURE A MAJORITY VOTE OF THE DIVISION MEMBERS, THE
DIVISION MUST APPOINT A NEUTRAL REFEREE TO SIT WITH THE DIVISION AS A
MEMBER THEREOF AND MAKE AN AWARD, SEC. 3 FIRST (L).  AWARDS ARE FINAL
AND BINDING EXCEPT INSOFAR AS THEY CONTAIN A MONEY AWARD; IN CASE OF
DISPUTE INVOLVING AN INTERPRETATION OF THE AWARD EITHER PARTY MAY
REQUEST THE DIVISION TO INTERPRET THE AWARD IN THE LIGHT OF THE
DISPUTE, SEC. 3 FIRST (M).  IN CASE OF AN AWARD FAVORABLE TO THE
PETITIONER, THE DIVISION SHALL MAKE AN ORDER, DIRECTED TO THE CARRIER,
TO MAKE THE AWARD EFFECTIVE AND IF THE PAYMENT OF MONEY IS REQUIRED TO
PAY SUCH SUM TO THE EMPLOYEE, SEC. 3 FIRST (O).  IF THE CARRIER DOES
NOT COMPLY WITH AN ORDER, ENFORCEMENT MAY BE SOUGHT BY A SUIT IN A
DISTRICT COURT OF THE UNITED STATES AS PROVIDED IN SEC. 3 FIRST (P). 

THE LABOR SPOKESMAN FOR THE PROPOSAL MADE IT CRYSTAL CLEAR THAT AN
ESSENTIAL FEATURE OF THE PROPOSAL WAS THAT BOARD AWARDS ON GRIEVANCES
SUBMITTED BY OR ON BEHALF OF EMPLOYEES WERE TO BE FINAL AND BINDING
UPON THE AFFECTED EMPLOYEES.  THE EMPLOYEES WERE WILLING TO GIVE UP
THEIR REMEDIES OUTSIDE OF THE STATUTE PROVIDED THAT A WORKABLE AND
BINDING STATUTORY SCHEME WAS ESTABLISHED TO SETTLE GRIEVANCES.  MR.
GEORGE HARRISON, PRESIDENT OF THE BROTHERHOOD OF RAILROAD CLERKS,
STATED: "GRIEVANCES COME ABOUT BECAUSE THE MEN FILE THEM THEMSELVES. 
RAILROADS DON'T INSTITUTE GRIEVANCES.  GRIEVANCES ARE INSTITUTED
AGAINST RAILROAD OFFICERS' ACTIONS, AND WE ARE WILLING TO TAKE OUR
CHANCES WITH THIS NATIONAL BOARD BECAUSE WE BELIEVE, OUT OF OUR
EXPERIENCE, THAT THE NATIONAL BOARD IS THE BEST AND MOST EFFICIENT
METHOD OF GETTING A DETERMINATION OF THESE MANY CONTROVERSIES  ...  ." 
HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 3266,
73D CONG., 2D SESS., P. 33.  "WE ARE NOW READY TO CONCEDE THAT WE CAN
RISK HAVING OUR GRIEVANCES GO TO A BOARD AND GET THEM DETERMINED  ...
BUT IF WE ARE GOING TO GET A HODGEPODGE ARRANGEMENT BY LAW, RATHER THAN
WHAT IS SUGGESTED BY THIS BILL, THEN WE DON'T WANT TO GIVE UP THAT
RIGHT, BECAUSE WE ONLY GIVE UP THE RIGHT BECAUSE WE FEEL THAT WE WILL
GET A MEASURE OF JUSTICE BY THIS MACHINERY THAT WE SUGGEST HERE."  ID.,
AT 35.  MR. EASTMAN ECHOED THIS THOUGHT:  "DECISIONS OF THE ADJUSTMENT
BOARD  ...  ARE MADE FINAL AND BINDING BY THE TERMS OF THIS ACT, AND AS
I UNDERSTAND IT, THE LABOR ORGANIZATIONS, NONE OF THEM, ARE OBJECTING
TO THAT PROVISION.  THEY HAVE THEIR DAY IN COURT AND THEY HAVE THEIR
MEMBERS ON THE ADJUSTMENT BOARD, AND IF AN AGREEMENT CANNOT BE REACHED
BETWEEN THE PARTIES REPRESENTING BOTH SIDES ON THE ADJUSTMENT BOARD, A
NEUTRAL MAN STEPS IN AND RENDERS THE DECISION, AND THEY WILL BE
REQUIRED TO ACCEPT THAT DECISION WHEN MADE  ...  ."  HEARINGS BEFORE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 7650, 73D
CONG., 2D SESS., P. 59.  SEE ALSO ID., AT 58-65. 

THUS THE EMPLOYEES CONSIDERED THAT THEIR INTERESTS WOULD BE BEST
SERVED BY A WORKABLE STATUTORY SCHEME PROVIDING FOR THE FINAL
SETTLEMENT OF GRIEVANCES BY A TRIBUNAL COMPOSED OF PEOPLE EXPERIENCED
IN THE RAILROAD INDUSTRY.  THE EMPLOYEES' REPRESENTATIVES MADE IT CLEAR
THAT, IF SUCH A STATUTORY SCHEME WERE PROVIDED, THE EMPLOYEES WOULD
ACCEPT THE AWARDS AS TO DISPUTES PROCESSED THROUGH THE SCHEME AS FINAL
SETTLEMENTS OF THOSE DISPUTES WHICH WERE NOT TO BE RAISED AGAIN. 

DESPITE THE CONCLUSION COMPELLED BY THE OVER-ALL SCHEME OF THE
RAILWAY LABOR ACT AND ITS LEGISLATIVE HISTORY, IT IS SUGGESTED THAT
BECAUSE AN ENFORCEMENT PROCEEDING AGAINST A NONCOMPLYING CARRIER UNDER
SEC. 3 FIRST (P) AFFORDS THE DEFEATED CARRIER SOME OPPORTUNITY TO
RELITIGATE THE ISSUES DECIDED BY THE ADJUSTMENT BOARD, (FN12)
UNFAIRNESS RESULTS IF SEC. 3 FIRST (M) IS CONSTRUED SO AS TO DENY THE
EMPLOYEE THE RIGHT TO MAINTAIN THIS COMMON-LAW ACTION.  WE ARE REFERRED
TO THE EMPHASIS UPON THE CONSIDERATION OF AVOIDING UNFAIRNESS EXPRESSED
IN UNITED STATES V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426, WHICH
HELD THAT A DENIAL BY THE INTERSTATE COMMERCE COMMISSION OF A CLAIM OF
A SHIPPER FOR MONEY REPARATIONS IS REVIEWABLE IN THE FEDERAL COURTS,
POINTING OUT THAT A COMMISSION AWARD FAVORABLE TO A SHIPPER WAS NOT
FINAL AND BINDING UPON THE RAILROAD.  BUT THAT HOLDING RESTED UPON AN
INTERPRETATION OF 28 U.S.C. (1946 ED.)  SEC.  41(28) PROVIDING THAT
"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION  ...  OF CASES
BROUGHT TO ENJOIN, SET ASIDE, ANNUL, OR SUSPEND IN WHOLE OR IN PART ANY
ORDER OF THE INTERSTATE COMMERCE COMMISSION."  IN CONTRAST, SEC. 3
FIRST (M) HERE INVOLVED COMMANDS THAT THE ADJUSTMENT BOARD'S "AWARDS
SHALL BE FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE, EXCEPT
INSOFAR AS THEY SHALL CONTAIN A MONEY AWARD."  THE ADJUSTMENT BOARD'S
AWARD IN CONTROVERSY DENIED RESPONDENT'S CLAIM FOR REINSTATEMENT AND
BACK PAY, WHICH, WE HAVE SAID, WAS NOT A "MONEY AWARD."  ALTHOUGH THE
PROVISIONS FOR ENFORCEMENT OF MONEY AWARDS IN THE RAILWAY LABOR ACT,
SEC. 3 FIRST (O) AND (P), ESTABLISH PROCEDURES SIMILAR TO THOSE UNDER
49 U.S.C. SEC. 16(1) AND (2) FOR ENFORCEMENT OF REPARATIONS ORDERS OF
THE INTERSTATE COMMERCE COMMISSION, SEC. 3 FIRST (M) WITH WHICH WE ARE
HERE CONCERNED HAS NO COUNTERPART IN THE INTERSTATE COMMERCE ACT.  THE
DISPARITY IN JUDICIAL REVIEW OF ADJUSTMENT BOARD ORDERS, IF IT CAN BE
SAID TO BE UNFAIR AT ALL, WAS EXPLICITLY CREATED BY CONGRESS, AND IT IS
FOR CONGRESS TO SAY WHETHER IT OUGHT BE REMOVED. 

PLAINLY THE STATUTORY SCHEME AS REVISED BY THE 1934 AMENDMENTS WAS
DESIGNED FOR EFFECTIVE AND FINAL DECISION OF GRIEVANCES WHICH ARISE
DAILY, PRINCIPALLY AS MATTERS OF THE ADMINISTRATION AND APPLICATION OF
THE PROVISIONS OF COLLECTIVE BARGAINING AGREEMENTS.  THIS GRIST OF
LABOR RELATIONS IS SUCH THAT THE STATUTORY SCHEME CANNOT REALISTICALLY
BE SQUARED WITH THE CONTENTION THAT CONGRESS DID NOT PURPOSE TO
FORECLOSE LITIGATION IN THE COURTS OVER GRIEVANCES SUBMITTED TO AND
DISPOSED OF BY THE BOARD, PAST THE ACTION UNDER SEC. 3 FIRST (P)
AUTHORIZED AGAINST THE NONCOMPLYING CARRIER, SEE WASHINGTON TERMINAL
CO. V. BOSWELL, 75 U.S. APP. D.C. 1, 124 F.2D 235, AFF'D BY AN EQUALLY
DIVIDED COURT, 319 U.S. 732, OR THE REVIEW SOUGHT OF AN AWARD CLAIMED
TO RESULT FROM A DENIAL OF DUE PROCESS OF LAW, SEE ELLERD V. SOUTHERN
PACIFIC R. CO., 241 F.2D 541; BARNETT V. PENNSYLVANIA-READING SEASHORE
LINES, 245 F.2D 579, 582.  SO FAR AS APPEARS, ALL OF THE COURTS OF
APPEALS (FN13) AND DISTRICT COURTS (FN14) WHICH HAVE DEALT WITH THIS
PROBLEM HAVE REACHED THE CONCLUSION WE REACH HERE.   TO SAY THAT THE
DISCHARGED EMPLOYEE MAY LITIGATE THE VALIDITY OF HIS DISCHARGE IN A
COMMON-LAW ACTION FOR DAMAGES AFTER FAILING TO SUSTAIN HIS GRIEVANCE
BEFORE THE BOARD IS TO SAY THAT CONGRESS PLANNED THAT THE BOARD SHOULD
FUNCTION ONLY TO RENDER ADVISORY OPINIONS, AND INTENDED THE ACT'S
ENTIRE SCHEME FOR THE SETTLEMENT OF GRIEVANCES TO BE REGARDED "AS
WHOLLY CONCILIATORY IN CHARACTER, INVOLVING NO ELEMENT OF LEGAL
EFFECTIVENESS, WITH THE CONSEQUENCE THAT THE PARTIES ARE ENTIRELY FREE
TO ACCEPT OR IGNORE THE BOARD'S DECISION  ...  A CONTENTION
INCONSISTENT WITH THE ACT'S TERMS, PURPOSES AND LEGISLATIVE HISTORY." 
ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S. 711, 720-721. 

WE THEREFORE HOLD THAT THE RESPONDENT'S SUBMISSION TO THE BOARD OF
HIS GRIEVANCES AS TO THE VALIDITY OF HIS DISCHARGE PRECLUDES HIM FROM
SEEKING DAMAGES IN THE INSTANT COMMON-LAW ACTION. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED WITH DIRECTION TO AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 
IT IS SO ORDERED. 

FN1  SECTION 3 FIRST (I) OF THE RAILWAY LABOR ACT, 48 STAT. 1191, 45
U.S.C. SEC. 153 FIRST (I), PROVIDES: 

"THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER
OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS, INCLUDING CASES PENDING AND UNADJUSTED ON JUNE 21, 1934,
SHALL BE HANDLED IN THE USUAL MANNER UP TO AND INCLUDING THE CHIEF
OPERATING OFFICER OF THE CARRIER DESIGNATED TO HANDLE SUCH DISPUTES;
BUT, FAILING TO REACH AN ADJUSTMENT IN THIS MANNER, THE DISPUTES MAY BE
REFERRED BY PETITION OF THE PARTIES OR BY EITHER PARTY TO THE
APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD WITH A FULL STATEMENT OF
THE FACTS AND ALL SUPPORTING DATA BEARING UPON THE DISPUTES." 

FN2  IT IS CONCEDED THAT RESPONDENT AUTHORIZED THE BROTHERHOOD TO
BRING HIS CLAIM BEFORE THE ADJUSTMENT BOARD.  COMPARE ELGIN, J.&E.R.
CO. V. BURLEY, 325 U.S. 711, AFF'D ON REHEARING, 327 U.S. 661. 

FN3  THE PERTINENT EXCERPTS FROM THE FINDINGS ARE THE FOLLOWING: 

"IF THE CARRIER IS TO HAVE EFFICIENT OPERATIONS ON ITS RAILROAD,
EMPLOYEES MUST BE RELIED ON TO OBEY OPERATING INSTRUCTIONS AND ORDERS. 
CLAIMANT WAS FOUND TO HAVE WILFULLY DISOBEYED HIS ORDERS.  THIS WAS
INSUBORDINATION AND MERITED DISCIPLINE. 

"THE EMPLOYEE  ...  SEEKS COMPLETE VINDICATION ON THE GROUNDS THAT HE
WAS DENIED THE INVESTIGATION PROVIDED BY THE RULES OF AGREEMENT.  THUS,
THE ONLY QUESTION FOR REVIEW IS WHETHER THERE WAS SUBSTANTIAL
COMPLIANCE WITH THE INVESTIGATIVE RULE. 

"BASICALLY, THE COMPLAINT IS THAT THE HEARING WAS HELD WHEN THE
CLAIMANT WAS NOT PRESENT. 

     *      *         *         *         * 

"  ...  THE RIGHT OF THE EMPLOYEE TO BE HEARD BEFORE BEING
DISCIPLINED IS A PERSONAL RIGHT WHICH HE CAN WAIVE BY ACTION, INACTION,
OR FAILURE TO ACT IN GOOD FAITH  ...  . 

"  ...  HIS POSITION HERE WOULD HAVE BEEN STRENGTHENED HAD HE
PERSONALLY APPEARED AT ALL STAGES OF THE PROCEEDING TO LABOR AS BEST HE
COULD TO PRESERVE HIS RECORD AND TO GET HIS STORY TO US FIRST HAND. 
ALL THAT THE TRANSCRIPT REFLECTS DOES CLAIMANT NO CREDIT, BUT LEAVES US
WITH THE FEELING THAT THE THINGS OF WHICH HE NOW COMPLAINS WERE PLANNED
BY HIM THAT WAY." 

FN4  GARRISON, THE NATIONAL RAILROAD ADJUSTMENT BOARD:  A UNIQUE
ADMINISTRATIVE AGENCY, 46 YALE L.J. 567, 584, DESCRIBES THE AWARDS OF
THE FIRST DIVISION OF THE NATIONAL ADJUSTMENT BOARD AS FOLLOWS: 

"IT WILL BE NOTED THAT, EXCEPT FOR THE PURELY JURISDICTIONAL
RECITALS, THE FINDINGS CONSIST OF A SINGLE SENTENCE ('THE EVIDENCE
INDICATES THAT THE MOVEMENTS MADE DID NOT CONSTITUTE SWITCHING UNDER
ARTICLE I-R') WHICH CONSTITUTES THE NUB OF THE WHOLE DECISION.  RARELY
DOES THIS CENTRAL FINDING CONSIST OF MORE THAN A SENTENCE OR TWO.  TO A
LAY READER THE SENTENCE QUOTED ABOVE IS MEANINGLESS.  IN ORDER THAT IT
MAY BE MORE INTELLIGIBLE THE FINDINGS IN THEIR PRINTED FORM ARE
PRECEDED BY THE EMPLOYEES' STATEMENT OF FACTS TAKEN FROM THEIR
SUBMISSION, AND A STATEMENT OF THEIR POSITION (LIKEWISE EXTRACTED FROM
THE SUBMISSION), FOLLOWED BY THE MANAGEMENT'S STATEMENT OF FACTS AND A
STATEMENT OF ITS POSITION DERIVED SIMILARLY FROM ITS SUBMISSION.  FROM
THESE RIVAL STATEMENTS IT IS EASY TO DETERMINE WHAT THE CONTROVERSY IS
ABOUT, BUT IT IS NOT EASY TO DETERMINE FROM THE LACONIC FINDINGS THE
REAL BASIS UPON WHICH THE DECISION WAS REACHED." 

FN5  IN AN INTERPRETATION ANNOUNCED ON NOVEMBER 26, 1958, SOUGHT BY
THE RAILROAD UNDER SEC.  3 FIRST (M) OF THE RAILWAY LABOR ACT, THE
BOARD DECLARED THAT ITS AWARD REFLECTED ITS CONCLUSION THAT THE
RAILROAD WAS JUSTIFIED IN DISCHARGING RESPONDENT.  THIS INTERPRETATION
WAS NOT BEFORE THE COURT OF APPEALS IN THIS CASE, AND WE REFER TO IT
ONLY AS FURTHER SUBSTANTIATION OF OUR CONCLUSION BASED ON THE RECORD IN
THE CASE. 

FN6  SINCE RESPONDENT, INSTEAD OF BRINGING HIS CLAIM IN COURT AS WAS
HIS RIGHT UNDER MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630, CHOSE
TO PURSUE THAT CLAIM BEFORE THE ADJUSTMENT BOARD, HE DOES NOT EVEN
ARGUE THAT A HOLDING THAT THE RAILWAY LABOR ACT PRECLUDES A
RELITIGATION OF THAT CLAIM IN THE COURTS WOULD DEPRIVE HIM OF ANY
CONSTITUTIONAL RIGHT TO A JURY TRIAL. 

FN7  48 STAT. 1191-1192, 45 U.S.C. SEC. 153 FIRST (M).  THAT SECTION
PROVIDES:    "THE AWARDS OF THE SEVERAL DIVISIONS OF THE ADJUSTMENT
BOARD SHALL BE STATED IN WRITING.  A COPY OF THE AWARDS SHALL BE
FURNISHED TO THE RESPECTIVE PARTIES TO THE CONTROVERSY, AND THE AWARDS
SHALL BE FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE, EXCEPT
INSOFAR AS THEY SHALL CONTAIN A MONEY AWARD.  IN CASE A DISPUTE ARISES
INVOLVING AN INTERPRETATION OF THE AWARD THE DIVISION OF THE BOARD UPON
REQUEST OF EITHER PARTY SHALL INTERPRET THE AWARD IN THE LIGHT OF THE
DISPUTE." 

FN8  DESPITE THE CLEAR IMPORT OF THE STATUTORY LANGUAGE AND THE
LEGISLATIVE HISTORY THE RESPONDENT ARGUES THAT THIS COURT'S HOLDING IN
MOORE V. ILLINOIS R. CO., 312 U.S. 630, REQUIRES US TO HOLD THAT THE
INSTANT SUIT IS NOT PRECLUDED.  HOWEVER, THE HOLDING IN MOORE WAS
SIMPLY THAT A COMMON-LAW REMEDY FOR DAMAGES MIGHT BE PURSUED BY A
DISCHARGED EMPLOYEE WHO DID NOT RESORT TO THE STATUTORY REMEDY BEFORE
THE BOARD TO CHALLENGE THE VALIDITY OF HIS DISMISSAL.  A DIFFERENT
QUESTION ARISES HERE WHERE THE EMPLOYEE OBTAINED A DETERMINATION FROM
THE BOARD, AND, HAVING LOST, IS SEEKING TO RELITIGATE IN THE COURTS THE
SAME ISSUE AS TO THE VALIDITY OF HIS DISCHARGE. 

FN9  SEE HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE
ON S. 3266, 73D CONG., 2D SESS., P. 15.  THE CHAIRMAN OF THE UNITED
STATES BOARD OF MEDIATION DESCRIBED SEC. 3 FIRST OF THE 1926 ACT AS
FOLLOWS:  "THE PROVISION IN THE PRESENT (1926) ACT FOR ADJUSTMENT
BOARDS IS IN PRACTICE ABOUT AS NEAR A FOOL PROVISION AS ANYTHING COULD
POSSIBLY BE.  I MEAN THIS - THAT ON THE FACE OF IT THEY SHALL, BY
AGREEMENT, DO SO AND SO.  WELL, YOU CAN DO PRETTY NEARLY ANYTHING BY
AGREEMENT, BUT HOW CAN YOU GET THEM TO AGREE?"  HEARINGS BEFORE THE
SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 3266, 73D CONG., 2D
SESS., P. 137. 

FN10  PROVISION FOR JUDICIAL ENFORCEMENT OF AWARDS AGAINST EMPLOYEES
WAS THOUGHT TO BE UNNECESSARY SINCE GRIEVANCES ARE USUALLY ASSERTED BY
EMPLOYEES CHALLENGING SOME ACTION BY THE CARRIER, AND IF THE GRIEVANCE
IS NOT SUSTAINED BY THE BOARD, THE AWARD SIMPLY DENIES THE CLAIM AND
REQUIRES NO AFFIRMATIVE ACTION BY THE EMPLOYEE.  IF AN UNFAVORABLE
AWARD RESULTS IN A STRIKE THE CARRIER MAY OBTAIN INJUNCTIVE RELIEF. 
RAILROAD TRAINMEN V. CHICAGO RIVER & I.R.  CO., 353 U.S. 30; SEE ALSO
HEARINGS BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON
H.R. 7650, 73D CONG., 2D SESS., PP. 58-65. 

FN11 FOR DISCUSSION OF THE STATUTORY SCHEME ENACTED IN THE RAILWAY
LABOR ACT AND THE 1934 AMENDMENTS THERETO, SEE ELGIN, J.&E.R. CO. V.
BURLEY, 325 U.S. 711; RAILROAD TRAINMEN V. CHICAGO RIVER & I.R. CO.,
353 U.S. 30; WASHINGTON TERMINAL CO. V. BOSWELL, 75 U.S. APP. D.C.  1,
124 F.2D 235, AFF'D BY AN EQUALLY DIVIDED COURT, 319 U.S. 732. 

FN12  SECTION 3 FIRST (P) OF THE RAILWAY LABOR ACT, 48 STAT. 1192, 45
U.S.C. SEC. 153 FIRST (P), PROVIDES: 

"IF A CARRIER DOES NOT COMPLY WITH AN ORDER OF A DIVISION OF THE
ADJUSTMENT BOARD WITHIN THE TIME LIMIT IN SUCH ORDER, THE PETITIONER
...  MAY FILE IN THE DISTRICT COURT OF THE UNITED STATES  ... A
PETITION SETTING FORTH BRIEFLY THE CAUSES FOR WHICH HE CLAIMS RELIEF,
AND THE ORDER OF THE DIVISION OF THE ADJUSTMENT BOARD IN THE PREMISES. 
SUCH SUIT IN THE DISTRICT COURT OF THE UNITED STATES SHALL PROCEED IN
ALL RESPECTS AS OTHER CIVIL SUITS, EXCEPT THAT ON THE TRIAL OF SUCH
SUIT THE FINDINGS AND ORDER OF THE DIVISION OF THE ADJUSTMENT BOARD
SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN STATED, AND EXCEPT
THAT THE PETITIONER SHALL NOT BE LIABLE FOR COSTS IN THE DISTRICT COURT
NOR FOR COSTS AT ANY SUBSEQUENT STAGE OF THE PROCEEDINGS, UNLESS THEY
ACCRUE UPON HIS APPEAL, AND SUCH COSTS SHALL BE PAID OUT OF THE
APPROPRIATION FOR THE EXPENSES OF THE COURTS OF THE UNITED STATES.  IF
THE PETITIONER SHALL FINALLY PREVAIL HE SHALL BE ALLOWED A REASONABLE
ATTORNEY'S FEE, TO BE TAXED AND COLLECTED AS A PART OF THE COSTS OF THE
SUIT.  THE DISTRICT COURTS ARE EMPOWERED, UNDER THE RULES OF THE COURT
GOVERNING ACTIONS AT LAW, TO MAKE SUCH ORDER AND ENTER SUCH JUDGMENT,
BY WRIT OF MANDAMUS OR OTHERWISE, AS MAY BE APPROPRIATE TO ENFORCE OR
SET ASIDE THE ORDER OF THE DIVISION OF THE ADJUSTMENT BOARD." 

FN13  BARNETT V. PENNSYLVANIA-READING SEASHORE LINES, 245 F.2D 579
(C.A. 3D CIR.); BOWER V. EASTERN AIRLINES, INC., 214 F.2D 623 (C.A. 3D
CIR.); MICHEL V. LOUISVILLE & N.R. CO., 188 F.2D 224 (C.A. 5TH CIR.);
REYNOLDS V. DENVER & R.G.W.R. CO., 174 F.2D 673 (C.A. 10TH CIR.);
WASHINGTON TERMINAL CO. V. BOSWELL, 75 U.S. APP. D.C. 1, 10, 124 F.2D
235, 244 (C.A.D.C. CIR.), AFF'D BY AN EQUALLY DIVIDED COURT, 319 U.S.
732. 

FN14  WEAVER V. PENNSYLVANIA R. CO., 141 F. SUPP. 214 (D.C.S.D.N.Y.),
AFF'D PER CURIAM, 240 F.2D 350 (C.A.2D CIR.); BYERS V. ATCHISON,
T.&S.F.R. CO., 129 F. SUPP. 109 (D.C.S.D. CAL.); GREENWOOD V. ATCHISON,
T.&S.F.R. CO., 129 F. SUPP. 105 (D.C.S.D. CAL.); FARRIS V. ALASKA
AIRLINES, INC., 113 F. SUPP. 907 (D.C.W.D. WASH.); PARKER V. ILLINOIS
CENTRAL R. CO., 108 F. SUPP. 186 (D.C.N.D. ILL.); FUTHEY V. ATCHISON,
T.&S.F.R. CO., 96 F. SUPP. 864 (D.C.N.D.  ILL.); KELLY V. NASHVILLE, C.
& ST. L.R. CO., 75 F. SUPP. 737 (D.C.E.D. TENN.); RAMSEY V. CHESAPEAKE
& O.R. CO., 75 SUPP. 740 (D.C.N.D. OHIO); BERRYMAN V. PULLMAN CO., 48
F. SUPP.  542 (D.C.W.D. MO.). 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THE BASIC QUESTION IN THIS CASE IS THE ONE RESERVED IN ELGIN, J.&E.R.
CO. V. BURLEY, 325 U.S. 711, 719, 720.  IT IS WHETHER AN AWARD THAT
DENIES A CLAIM FOR MONEY DAMAGES COMES WITHIN THE EXCEPTION OF SEC. 3
FIRST (M) OF THE RAILWAY LABOR ACT WHICH PROVIDES THAT "THE AWARDS
SHALL BE FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE, EXCEPT
INSOFAR AS THEY SHALL CONTAIN A MONEY AWARD." 

IT WAS POINTED OUT IN THE DISSENT IN THAT CASE (325 U.S., AT 760-761)
THAT THE PROVISION FOR FINALITY OF THESE AWARDS WAS CLOSE IN ORIGIN TO
THE REPARATION ORDERS UNDER THE INTERSTATE COMMERCE ACT. 

"SINCE BOTH ACTS CAME OUT OF THE SAME CONGRESSIONAL COMMITTEES ONE
FINDS, NATURALLY ENOUGH, THAT THE PROVISIONS FOR ENFORCEMENT AND REVIEW
OF THE ADJUSTMENT BOARD'S AWARDS WERE BASED ON THOSE FOR REPARATION
ORDERS BY THE INTERSTATE COMMERCE COMMISSION.  COMPARE RAILWAY LABOR
ACT, SEC. 3, FIRST (P) WITH INTERSTATE COMMERCE ACT, AS AMENDED BY SEC.
5 OF THE HEPBURN ACT, 34 STAT. 584, 590, 49 U.S.C. SEC. 16(1), (2).  IF
A CARRIER FAILS TO COMPLY WITH A REPARATION ORDER, AS IS TRUE OF NON
COMPLIANCE WITH AN ADJUSTMENT BOARD AWARD, THE COMPLAINANT MAY SUE IN
COURT FOR ENFORCEMENT; THE COMMISSION'S ORDER AND FINDINGS AND EVIDENCE
THEN BECOME PRIMA FACIE EVIDENCE OF THE FACTS STATED.  BUT A DENIAL OF
A MONEY CLAIM BY THE INTERSTATE COMMERCE COMMISSION BARS THE DOOR TO
REDRESS IN THE COURTS.  BALTIMORE & OHIO R. CO. V. BRADY, 288 U.S. 448;
I.C.C. V. UNITED STATES, 289 U.S. 385, 388; TERMINAL WAREHOUSE V.
PENNSYLVANIA R. CO., 297 U.S. 500, 507." 

SINCE THE DECISION IN THE BURLEY CASE THE SITUATION DESCRIBED IN THE
DISSENTING OPINION HAS CHANGED.  SUBSEQUENTLY, UNITED STATES V.
INTERSTATE COMMERCE COMM'N, 337 U.S. 426, WAS DECIDED; AND IT HELD,
CONTRARY TO EARLIER PRECEDENTS CITED IN THE DISSENT IN THE BURLEY CASE,
THAT ORDERS IN REPARATIONS CASES WHICH DENIED THE CLAIMS OF SHIPPERS
WERE REVIEWABLE IN THE FEDERAL COURTS.  IT POINTED OUT THAT THE
"NEGATIVE ORDER" DOCTRINE, WHICH WE ABANDONED IN ROCHESTER TEL. CORP.
V. UNITED STATES, 307 U.S. 125, HAD GREATLY INFLUENCED THOSE PRIOR
DECISIONS. 

WE REFUSED TO FOLLOW THAT DISCARDED DOCTRINE THERE; AND IT SHOULD
FIND NO PLACE HERE.  AN AWARD OF NO DAMAGES IS, AS I SEE IT, AS MUCH A
"MONEY AWARD" AS AN AWARD OF 6 CENTS.  THE WORDS "MONEY AWARD" ARE
DESCRIPTIVE OF THE NATURE OF THE CLAIM, SETTING THAT CLASS APART FROM
OTHER SUITS WHICH INVOLVE, FOR EXAMPLE, A DECLARATION OF SENIORITY
RIGHTS. 

TOLERANCE OF JUDICIAL REVIEW HAS BEEN MORE AND MORE THE RULE AS
AGAINST THE CLAIM OF ADMINISTRATIVE FINALITY.  (FN1)  SEE SHIELDS V.
UTAH IDAHO R. CO., 305 U.S. 177, 183; STARK V. WICKARD, 321 U.S. 288,
309-310; HARMON V. BRUCKER, 355 U.S. 579, 581-582; LEEDOM V. KYNE, 358
U.S. 184, 190.  THE WEIGHT OF THE ADMINISTRATIVE PROCEDURE ACT, 60
STAT. 243, 5 U.S.C.  SEC. 1009, IS ON THE SIDE OF JUDICIAL REVIEW, THE
FINALITY OF ADMINISTRATIVE ACTION BEING SANCTIONED ONLY WHERE IT IS
CLEAR FROM THE STATUTORY SCHEME THAT JUDICIAL REVIEW IS PRECLUDED. 

RESPONDENT ARGUES THAT IT WOULD BE GROSSLY UNFAIR TO CONSTRUE SEC. 3
FIRST (M) SO AS TO DENY JUDICIAL REVIEW TO A DEFEATED EMPLOYEE BUT NOT
TO A DEFEATED RAILROAD.  THAT WOULD INDEED BE THE RESULT IF AN EMPLOYEE
ASSERTING A MONEY CLAIM CANNOT GET COURT REVIEW IF HE LOSES, WHILE THE
EMPLOYER CAN OBTAIN IT IF THE EMPLOYEE WINS.  IT IS DIFFICULT FOR ME TO
BELIEVE THAT CONGRESS DESIGNED AND APPROVED SUCH A LOPSIDED,
PREFERENTIAL SYSTEM.  NO RHYME OR REASON IS APPARENT FOR SUCH
DISCRIMINATION.  THE ATTEMPT THROUGHOUT WAS TO EQUALIZE THE ADVANTAGES
OF THE CONTENDING PARTIES, NOT TO PREFER THE EMPLOYER WHO HAD LONG BEEN
DOMINANT.  WASHINGTON TERMINAL CO. V. BOSWELL, 75 U.S. APP. D.C. 1, 6
7, 124 F.2D 235, 240-241.  SOME HAVE SAID THAT AN AWARD DENYING PAYMENT
CANNOT BE A "MONEY AWARD" IN THE INTENDMENT OF THE ACT.  BERRYMAN V.
PULLMAN CO., 48 F. SUPP. 542.  BUT THAT IS A NARROW READING, NOT IN
KEEPING WITH THE HARMONY OF THE ACT.  I WOULD READ SEC. 3 FIRST (M) SO
AS NOT TO PRECLUDE JUDICIAL REVIEW IN ANY SUIT FOR "MONEY AWARDS" NO
MATTER WHICH PARTY WINS. 

IT IS TRUE THAT THE ACT DOES NOT PROVIDE THE METHOD OF REVIEW IN A
CASE OF THIS KIND.  SECTION 3 FIRST (P) ONLY COVERS THE CASE WHERE AN
AWARD HAS BEEN GRANTED AN EMPLOYEE AND THE CARRIER "DOES NOT COMPLY." 
IN THAT CASE THE ORDER OF THE BOARD "SHALL BE PRIMA FACIE EVIDENCE OF
THE FACTS THEREIN STATED."  SEC. 3 FIRST (P).  BUT THIS ACTION IS
PROPERLY MAINTAINABLE IF THE DISTRICT COURT OTHERWISE HAS
JURISDICTION.  NO QUESTION OF ELECTION OF REMEDIES IS INVOLVED BECAUSE
OF THE EXPRESS PROVISION IN THE ACT THAT THE AWARD OF THE BOARD IS NOT
FINAL.  SINCE THERE IS NO PROVISION IN THE ACT THAT SPECIFIES WHAT
JUDICIAL REVIEW MAY BE OBTAINED, THERE ARE PRESERVED WHATEVER JUDICIAL
REMEDIES ARE AVAILABLE.  ONE OF THOSE IS A SUIT FOR DAMAGES FOR
WRONGFUL DISCHARGE.  IN THREE SEPARATE DECISIONS WE HAVE SAID THAT
ACTIONS FOR WRONGFUL DISCHARGE CAN BE MAINTAINED IN THE COURTS BY THE
EMPLOYEE.  MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630; SLOCUM V.
DELAWARE, L.&W.R. CO., 339 U.S. 239, 244; TRANSCONTINENTAL AIR V.
KOPPAL, 345 U.S. 653, 661.  WE STATED IN THE SLOCUM CASE THAT "A COMMON
LAW OR STATUTORY ACTION FOR WRONGFUL DISCHARGE DIFFERS FROM ANY REMEDY
WHICH THE BOARD HAS POWER TO PROVIDE  ...  ."  THE BOARD HAS POWER TO
REINSTATE THE DISCHARGED EMPLOYEE AND AWARD BACK PAY; AND THAT WAS THE
RELIEF WHICH THIS EMPLOYEE SOUGHT BEFORE THE BOARD.  BUT THE COMMON-LAW
ACTION FOR WRONGFUL DISCHARGE MAY INCLUDE OTHER ITEMS OF DAMAGES AS
WELL.  HERE THE EMPLOYEE CLAIMED NOT ONLY LOST EARNINGS BUT FUTURE
EARNINGS, SENIORITY RIGHTS, RETIREMENT RIGHTS, HOSPITALIZATION RIGHTS,
AND TRANSPORTATION RIGHTS.  WHETHER NEVADA LAW THAT GOVERNS THIS
CONTRACT WOULD GRANT AS MUCH IS NOT NOW IMPORTANT.  THE POINT IS THAT
THE MEASURE OF THE RECOVERY IN A SUIT FOR DAMAGES IS NOT NECESSARILY
THE SAME AND MAY IN FACT BE GREATER, INCLUDING AN AWARD OF ATTORNEY
FEES.  (FN2)  IT IS DIFFICULT TO BELIEVE THAT THIS CAUSE OF ACTION
TRIABLE BEFORE A JURY IS LOST, WIPED OUT, OR ABOLISHED MERELY BECAUSE
THE EMPLOYEE LOSES OUT WHEN HE PURSUES THE LESSER OR MORE RESTRICTIVE
REMEDY BEFORE THE BOARD.  IF THERE IS TO BE EQUALITY BETWEEN EMPLOYER
AND EMPLOYEE IN THE ASSERTION OF RIGHTS AND THE ASSUMPTION OF DUTIES
UNDER THE ACT, THE EMPLOYEE CANNOT BE HELD TO HAVE MERELY ONE CHANCE IF
HE PROCEEDS BEFORE THE BOARD, WHILE THE EMPLOYER HAS A REMEDY FIRST
BEFORE THE BOARD AND, IF HE LOSES THERE, ANOTHER ONE BEFORE THE COURT. 

IN MY VIEW THE COURT'S CONTRARY READING OF SEC. 3 RAISES QUESTIONS OF
CONSTITUTIONAL MAGNITUDE.  FOR IF AN EMPLOYEE IS TO BE DENIED ANY
REVIEW OF THE BOARD'S DECISION WHEN THE RAILROAD PREVAILS, WHILE THE
LATTER CAN OBTAIN JUDICIAL REVIEW WITH A JURY TRIAL BEFORE COMPLYING
WITH A BOARD ORDER, THERE WOULD APPEAR TO BE AN UNJUSTIFIABLE
DISCRIMINATION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  IT IS NOT THE USUAL PRACTICE IN THIS COUNTRY TO PERMIT ONE
PARTY TO A LAWSUIT TWO CHANCES TO PREVAIL, WHILE THE OTHER HAS ONLY
ONE, NOR TO PERMIT ONE PARTY BUT NOT THE OTHER TO GET A JURY
DETERMINATION OF HIS CASE.  SEE PENNSYLVANIA R. CO. V. DAY, ANTE, P.
554 (DISSENT). 

THE RESULT IS THAT I WOULD REMAND THE CASE TO THE DISTRICT COURT FOR
TRIAL. 

FN1  CASES LIKE SWITCHMEN'S UNION V. MEDIATION BOARD, 320 U.S. 297,
AND GENERAL COMMITTEE V. M-K-T R. CO., 320 U.S. 323, ARE NO TRUE
EXCEPTION, FOR THOSE CASES INVOLVED MEDIATION, NOT ADJUDICATION -
MEDIATION BEING "THE ANTITHESIS OF JUSTICIABILITY."  320 U.S., AT 337. 
LABOR STANDARDS ACT, SEC. 16(B); 29 U.S.C. SEC. 216(B). 
..END :
























IN RE SAWYER 360 U.S. 622 


NO. 326.  ARGUED MAY 19-20, 1959.  - DECIDED JUNE 29, 1959.  - 260 F.2D
189, REVERSED. 


WHILE ACTIVELY PARTICIPATING AS ONE OF THE DEFENSE COUNSEL IN A
PROTRACTED AND HIGHLY PUBLICIZED TRIAL IN A FEDERAL DISTRICT COURT IN
HAWAII OF SEVERAL DEFENDANTS FOR CONSPIRACY UNDER THE SMITH ACT,
PETITIONER APPEARED WITH ONE OF THE DEFENDANTS AT A PUBLIC MEETING AND
MADE A SPEECH WHICH LED TO CHARGES THAT SHE HAD IMPUGNED THE
IMPARTIALITY AND FAIRNESS OF THE PRESIDING JUDGE IN CONDUCTING THE
TRIAL AND HAD THUS REFLECTED UPON HIS INTEGRITY IN DISPENSING JUSTICE
IN THE CASE.  THESE CHARGES WERE PREFERRED BY THE BAR ASSOCIATION OF
HAWAII BEFORE THE TERRITORIAL SUPREME COURT; THAT COURT REFERRED THE
CHARGES TO THE ETHICS COMMITTEE OF THE BAR ASSOCIATION, WHICH HELD A
HEARING, AND FOUND THE CHARGES SUSTAINED.  THE TERRITORIAL SUPREME
COURT, UPON REVIEW OF THE RECORD, ALSO SUSTAINED THE CHARGES, AND
ORDERED THAT PETITIONER BE SUSPENDED FROM THE PRACTICE OF LAW FOR ONE
YEAR.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED.  HELD:  THE
RECORD DOES NOT SUPPORT THE CHARGE AND THE FINDINGS GROWING OUT OF
PETITIONER'S SPEECH, AND THE JUDGMENT IS REVERSED.  PP. 623-640, 646
647. 

FOR JUDGMENT OF THE COURT AND OPINION OF MR. JUSTICE BRENNAN, JOINED
BY THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, SEE
PP. 623-640. 

FOR APPENDIX TO THE OPINION OF MR. JUSTICE BRENNAN, SEE P. 640. 

FOR CONCURRING OPINION OF MR. JUSTICE BLACK, SEE P. 646. 

FOR OPINION OF MR. JUSTICE STEWART, CONCURRING IN THE RESULT, SEE P.
646. 

FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR.
JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER, SEE P.
647. 

FOR DISSENTING OPINION OF MR. JUSTICE CLARK, SEE P. 669. 

IN RE SAWYER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT, AND
DELIVERED AN OPINION, IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE DOUGLAS JOIN. 

THIS CASE IS HERE ON WRIT OF CERTIORARI, 358 U.S. 892, TO REVIEW
PETITIONER'S SUSPENSION FROM THE PRACTICE OF LAW FOR ONE YEAR, ORDERED
BY THE SUPREME COURT OF THE TERRITORY OF HAWAII, 41 HAW.  403, AND
AFFIRMED ON APPEAL BY THE COURT OF APPEALS FOR THE NINTH CIRCUIT, 260
F.2D 189.  (FN1) 

PETITIONER HAS BEEN A MEMBER OF THE TERRITORIAL BAR IN HAWAII SINCE
1941.  FOR MANY MONTHS BEGINNING IN LATE 1952 SHE PARTICIPATED, IN THE
UNITED STATES DISTRICT COURT AT HONOLULU, AS ONE OF THE DEFENSE COUNSEL
IN THE TRIAL OF AN INDICTMENT AGAINST A NUMBER OF DEFENDANTS FOR
CONSPIRACY UNDER THE SMITH ACT, 18 U.S.C. SEC. 2385.  THE TRIAL WAS
BEFORE FEDERAL DISTRICT JUDGE JON WIIG AND A JURY.  BOTH DISCIPLINARY
CHARGES AGAINST PETITIONER HAD TO DO WITH THE SMITH ACT TRIAL.  ONE
CHARGE RELATED TO A SPEECH SHE MADE ABOUT SIX WEEKS AFTER THE TRIAL
BEGAN.  THE SPEECH WAS MADE ON THE ISLAND OF HAWAII, AT HONOKAA, A
VILLAGE SOME 182 MILES FROM HONOLULU, OAHU, ON A SUNDAY MORNING.   THE
OTHER CHARGE RELATED TO INTERVIEWS SHE HAD WITH ONE OF THE JURORS AFTER
THE TRIAL CONCLUDED. 

THE BAR ASSOCIATION OF HAWAII PREFERRED THE CHARGES (FN2) WHICH WERE
REFERRED BY THE TERRITORIAL SUPREME COURT TO THE ASSOCIATION'S LEGAL
ETHICS COMMITTEE FOR INVESTIGATION.  THE PROSECUTOR WHO REPRESENTED THE
GOVERNMENT AT THE SMITH ACT TRIAL CONDUCTED THE INVESTIGATION AND
PRESENTED THE EVIDENCE BEFORE THE COMMITTEE.  THE COMMITTEE SUBMITTED
THE RECORD AND ITS FINDINGS TO THE TERRITORIAL SUPREME COURT.  BECAUSE
THE SUSPENSION SEEMS TO US TO DEPEND ON IT, SEE PP. 637-638, INFRA, WE
DEAL FIRST WITH THE CHARGE RELATING TO THE SPEECH.  THE GIST OF THE
COMMITTEE'S FINDINGS WAS THAT THE PETITIONER'S SPEECH REFLECTED
ADVERSELY UPON JUDGE WIIG'S IMPARTIALITY AND FAIRNESS IN THE CONDUCT OF
THE SMITH ACT TRIAL AND IMPUGNED HIS JUDICIAL INTEGRITY.  THE COMMITTEE
CONCLUDED THAT PETITIONER "IN IMPUTING TO THE JUDGE UNFAIRNESS IN THE
CONDUCT OF THE TRIAL, IN IMPUGNING THE INTEGRITY OF THE LOCAL FEDERAL
COURTS AND IN OTHER COMMENTS MADE AT HONOKAA, WAS GUILTY OF VIOLATION
OF CANONS 1 AND 22 OF THE CANONS OF PROFESSIONAL ETHICS OF THE AMERICAN
BAR ASSOCIATION (FN3) AND SHOULD BE DISCIPLINED FOR THE SAME."  THE
TERRITORIAL SUPREME COURT HELD THAT "  ...  SHE ENGAGED AND
PARTICIPATED IN A WILLFUL ORAL ATTACK UPON THE ADMINISTRATION OF
JUSTICE IN AND BY THE SAID UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF HAWAII AND BY DIRECT STATEMENT AND IMPLICATION IMPUGNED THE
INTEGRITY OF THE JUDGE PRESIDING THEREIN  ...  AND THUS TENDED TO ALSO
CREATE DISRESPECT FOR THE COURTS OF JUSTICE AND JUDICIAL OFFICERS
GENERALLY  ...  .  SHE HAS THUS COMMITTED WHAT THIS COURT CONSIDERS
GROSS MISCONDUCT."  41 HAW., AT 422-423. 

WE THINK THAT OUR REVIEW MAY BE LIMITED TO THE NARROW QUESTION
WHETHER THE FACTS ADDUCED ARE CAPABLE OF SUPPORTING THE FINDINGS THAT
THE PETITIONER'S SPEECH IMPUGNED JUDGE WIIG'S IMPARTIALITY AND FAIRNESS
IN CONDUCTING THE SMITH ACT TRIAL AND THUS REFLECTED UPON HIS INTEGRITY
IN THE DISPENSATION OF JUSTICE IN THAT CASE.  WE DEAL WITH THE COURT'S
FINDINGS, NOT WITH "MISCONDUCT" IN THE ABSTRACT.  ALTHOUGH THE OPINIONS
IN THE COURT OF APPEALS AND THE ARGUMENT BEFORE US HAVE TENDED IN
VARYING DEGREES TO TREAT THE PETITIONER'S SUSPENSION AS DISCIPLINE
IMPOSED FOR OBSTRUCTING OR ATTEMPTING TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE, IN A WAY TO EMBARRASS OR INFLUENCE THE TRIBUNAL TRYING THE
CASE, SUCH WAS NEITHER THE CHARGE NOR THE FINDING OF PROFESSIONAL
MISCONDUCT UPON WHICH THE SUSPENSION WAS BASED.  SINCE NO OBSTRUCTION
OR ATTEMPT AT OBSTRUCTION OF THE TRIAL WAS CHARGED, AND SINCE IT IS
CLEAR TO US THAT THE FINDING UPON WHICH THE SUSPENSION RESTS IS NOT
SUPPORTABLE BY THE EVIDENCE ADDUCED, WE HAVE NO OCCASION TO CONSIDER
THE APPLICABILITY OF BRIDGES V. CALIFORNIA, 314 U.S. 252; PENNEKAMP V.
FLORIDA, 328 U.S. 331; OR CRAIG V. HARNEY, 331 U.S. 367, WHICH HAVE
BEEN EXTENSIVELY DISCUSSED IN THE BRIEFS.  WE DO NOT REACH OR INTIMATE
ANY CONCLUSION ON THE CONSTITUTIONAL ISSUES PRESENTED. 

PETITIONER'S CLIENT INCLUDED LABOR UNIONS, AMONG THEM THE
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION.  SOME OF THE
DEFENDANTS IN THE SMITH ACT TRIAL WERE OFFICERS AND MEMBERS OF THAT
UNION AND THEIR DEFENSE WAS BEING SUPPORTED BY THE UNION.  THE MEETING
AT HONOKAA WAS SPONSORED BY THE ILWU AND WAS ATTENDED IN LARGE PART BY
ITS MEMBERS.  THE PETITIONER SPOKE EXTEMPORANEOUSLY AND NO TRANSCRIPT
OR RECORDING WAS MADE OF HER SPEECH.  PRECISELY WHAT SHE DID SAY IS A
MATTER OF DISPUTE.  NEITHER THE TERRITORIAL SUPREME COURT NOR THE COURT
OF APPEALS SAW THE WITNESSES, BUT BOTH COURTS, ON READING THE RECORD,
RESOLVED MATTERS OF EVIDENTIARY CONFLICT IN THE FASHION LEAST FAVORABLE
TO THE PETITIONER.  FOR THE PURPOSES OF OUR REVIEW HERE, WE MAY DO THE
SAME.  THE VERSION OF THE PETITIONER'S SPEECH PRINCIPALLY RELIED UPON
BY THE COURT OF APPEALS, 260 F.2D, AT 197-198, IS DERIVED FROM NOTES
MADE BY A NEWSPAPER REPORTER, MATSUOKA, WHO ATTENDED THE MEETING AND
HEARD WHAT THE PETITIONER SAID.  THESE WERE NOT MATSUOKA'S ORIGINAL
NOTES - THE ORIGINALS WERE LOST - BUT AN EXPANDED VERSION PREPARED BY
HIM AT THE DIRECTION OF HIS NEWSPAPER SUPERIORS AFTER INTEREST IN THE
SPEECH WAS AROUSED BY MATSUOKA'S ACCOUNT OF IT IN THE NEWSPAPER.  (FN4)
WE SET FORTH THE NOTES IN FULL AS AN APPENDIX TO THIS OPINION, AND
SUMMARIZE THEM HERE, AS AN ACCOUNT OF WHAT PETITIONER SAID.  THE
SUMMARY WILL ILLUMINE THE BASIS OF OUR CONCLUSION THAT THE FINDING THAT
THE PETITIONER'S SPEECH IMPUGNED THE INTEGRITY OF JUDGE WIIG OR
REFLECTED UPON HIS IMPARTIALITY AND FAIRNESS IN PRESIDING AT THE SMITH
ACT TRIAL IS WITHOUT SUPPORT.  THE FACT FINDING BELOW DOES NOT REMOVE
THIS COURT'S DUTY OF EXAMINING THE EVIDENCE TO SEE WHETHER IT FURNISHES
A RATIONAL BASIS FOR THE CHARACTERIZATION PUT ON IT BY THE LOWER
COURTS.  SEE FISKE V. KANSAS, 274 U.S. 380.  SPECULATION CANNOT TAKE
OVER WHERE THE PROOFS FAIL.  WE CONCLUDE THAT THERE IS NO SUPPORT FOR
ANY FURTHER FACTUAL INFERENCE THAN THAT PETITIONER WAS VOICING STRONG
CRITICISM OF SMITH ACT CASES AND THE GOVERNMENT'S MANNER OF PROVING
THEM, AND THAT HER REFERENCES TO THE HAPPENINGS AT THE HONOLULU TRIAL
WERE ILLUSTRATIVE OF THIS, AND NOT A REFLECTION IN ANY WISE UPON JUDGE
WIIG PERSONALLY OR HIS CONDUCT OF THE TRIAL. 

PETITIONER SAID THAT THE HONOLULU TRIAL WAS REALLY AN EFFORT TO GET
AT THE ILWU.  SHE WANTED TO TELL ABOUT SOME "RATHER SHOCKING AND
HORRIBLE THINGS THAT GO ON AT THE TRIAL."  THE DEFENDANTS, SHE SAID,
WERE BEING TRIED FOR READING BOOKS WRITTEN BEFORE THEY WERE BORN.  JACK
HALL, ONE OF THE DEFENDANTS, SHE SAID, WAS ON TRIAL BECAUSE HE HAD READ
THE COMMUNIST MANIFESTO.  SHE SPOKE OF THE NATURE OF CRIMINAL
CONSPRIACY PROSECUTIONS, AS SHE SAW THEM, AND CHARGED THAT WHEN THE
GOVERNMENT DID NOT HAVE ENOUGH EVIDENCE "IT LUMPS A NUMBER TOGETHER AND
SAYS THEY AGREED TO DO SOMETHING."  "CONSPIRACY MEANS TO CHARGE A LOT
OF PEOPLE FOR AGREEING TO DO SOMETHING YOU HAVE NEVER DONE."  SHE
GENERALLY ATTACKED THE FBI, SAYING THEY SPENT TOO MUCH TIME
INVESTIGATING PEOPLE'S MINDS, AND NEXT DWELT FURTHER ON THE REMOTENESS
OF THE EVIDENCE IN THE CASE AND THE EXTREME YOUTH OF SOME OF THE
DEFENDANTS AT THE TIME TO WHICH THE EVIDENCE DIRECTLY RELATED.  SHE
SAID "NO ONE HAS A MEMORY THAT GOOD, YET THEY USE THIS KIND OF
TESTIMONY.  WHY?  BECAUSE THEY WILL DO ANYTHING AND EVERYTHING
NECESSARY TO CONVICT."  GOVERNMENT PROPAGANDA CARRIED ON FOR 10 YEARS
BEFORE THE JURORS ENTERED THE BOX, SHE CHARGED, MADE IT "ENOUGH TO SAY
A PERSON IS A COMMUNIST TO COOK HIS GOOSE."  SHE CHARGED THAT SOME OF
THE WITNESSES HAD GIVEN PRIOR INCONSISTENT TESTIMONY BUT THAT THE
GOVERNMENT WENT AHEAD AND HAD THEM "SAY THINGS IN ORDER TO CONVICT." 
"WITNESSES TESTIFY WHAT GOVERNMENT TELLS THEM TO."  THE GOVERNMENT, SHE
CLAIMED, READ IN EVIDENCE FOR TWO DAYS COMMUNIST BOOKS BECAUSE ONE OF
THE DEFENDANTS HAD ONCE SEEN THEM IN A DUFFEL BAG.  UNLESS PEOPLE
INFORMED ON SUCH DEFENDANTS, THE FBI WOULD TRY TO MAKE THEM LOSE THEIR
JOBS.  "THERE'S NO SUCH THING AS A FAIR TRAIL IN A SMITH ACT CASE. 
ALL RULES OF EVIDENCE HAVE TO BE SCRAPPED OR THE GOVERNMENT CAN'T MAKE
A CASE."  SHE RELATED HOW IN ANOTHER CASE (IN THE TERRITORIAL COURTS)
SHE WAS NOT ALLOWED TO PUT IN EVIDENCE OF A HEARSAY NATURE TO EXONERATE
A CRIMINAL DEFENDANT SHE WAS REPRESENTING, (FN5) BUT IN THE PRESENT
CASE "A FEDERAL JUDGE SITTING ON A FEDERAL BENCH PERMITS CROUCH (A
WITNESS) TO TESTIFY ABOUT 27 YEARS AGO, WHAT WAS SAID THEN  ...  HERE
THEY PERMIT A WITNESS TO TELL WHAT WAS SAID WHEN A DEFENDANT WAS FIVE
YEARS OLD."  SHE THEN DECLARED, "THERE'S NO FAIR TRIAL IN THE CASE. 
THEY JUST MAKE UP THE RULES AS THEY GO ALONG."  SHE GAVE THE EXAMPLE OF
THE NEW YORK SMITH ACT TRIAL BEFORE JUDGE MEDINA, SEE DENNIS V. UNITED
STATES, 341 U.S. 494, WHERE SHE CLAIMED "THE GOVERNMENT CAN'T MAKE A
CASE IF IT TELLS JUST WHAT THEY DID SO THEY WIDENED THE RULES AND TELL
WHAT OTHER PEOPLE DID YEARS AGO, INCLUDING EVERYTHING INCLUDING THE
KITCHEN SINK."  SHE DECLARED, "UNLESS WE STOP THE SMITH TRIAL IN ITS
TRACKS HERE THERE WILL BE A NEW CRIME.  PEOPLE WILL BE CHARGED WITH
KNOWING WHAT IS INCLUDED IN BOOKS - IDEAS."  PETITIONER SAID IN
CONCLUSION THAT IF THINGS WENT ON THE FREEDOM TO READ AND FREEDOM OF
THOUGHT AND ACTION WOULD BE SUBVERTED.  SHE URGED HER AUDITORS TO GO
OUT AND EXPLAIN WHAT A VICIOUS THING THE SMITH ACT WAS. 

THE SPECIFIC UTTERANCES IN THE SPEECH THAT THE LEGAL ETHICS COMMITTEE
AND THE SUPREME COURT FOUND AS FURNISHING THE BASIS FOR THE FINDINGS
THAT PETITIONER IMPUGNED JUDGE WIIG'S INTEGRITY WERE THE REFERENCES
(WHICH WE HAVE QUOTED IN FULL ABOVE) TO "HORRIBLE AND SHOCKING" THINGS
AT THE TRIAL; THE IMPOSSIBILITY OF A FAIR TRIAL; THE NECESSITY, IF THE
GOVERNMENT'S CASE WERE TO BE PROVED, OF SCRAPPING THE RULES OF
EVIDENCE; AND THE CREATION OF NEW CRIMES UNLESS THE TRIAL WERE STOPPED
AT ONCE.  WE EXAMINE THESE POINTS IN PARTICULAR, THOUGH OF COURSE WE
MUST DO SO IN THE CONTEXT OF THE WHOLE SPEECH.  IN SO DOING WE ACCEPT
AS OBVIOUSLY CORRECT THE RULING OF THE COURTS BELOW THAT PETITIONER'S
REMARKS WERE NOT A MERE GENERALIZED DISCOURSE ON SMITH ACT PROSECUTIONS
BUT INCLUDED PARTICULAR REFERENCES TO THE CASE GOING ON IN HONOLULU. 

I. WE START WITH THE PROPOSITION THAT LAWYERS ARE FREE TO CRITICIZE
THE STATE OF THE LAW.  MANY LAWYERS SAY THAT THE RULES OF EVIDENCE
RELATIVE TO THE ADMISSION OF STATEMENTS BY THOSE ALLEGED TO BE CO
CONSPIRATORS ARE OVERBROAD OR OTHERWISE UNFAIR AND UNWISE; (FN6) THAT
THERE ARE DANGERS TO DEFENDANTS, OF A SORT AGAINST WHICH TRIAL JUDGES
CANNOT PROTECT THEM, IN THE TRIAL OF NUMEROUS PERSONS JOINTLY FOR
CONSPIRACY; (FN7) AND THAT A SMITH ACT TRIAL IS APT TO BECOME A TRIAL
OF IDEAS.  (FN8)  OTHERS DISAGREE.  BUT ALL ARE FREE TO EXPRESS THEIR
VIEWS ON THESE MATTERS, AND NO ONE WOULD SAY THAT THIS SORT OF
CRITICISM CONSTITUTED AN IMPROPER ATTACK ON THE JUDGES WHO ENFORCED
SUCH RULES AND WHO PRESIDED AT THE TRIALS.  THIS IS SO, EVEN THOUGH THE
EXISTENCE OF QUESTIONABLE RULES OF LAW MIGHT BE SAID IN A SENSE TO
PRODUCE UNFAIR TRIALS.  (FN9)  SUCH CRITICISM SIMPLY CANNOT BE EQUATED
WITH AN ATTACK ON THE MOTIVATION OR THE INTEGRITY OR THE COMPETENCE OF
THE JUDGES.  AND SURELY PERMISSIBLE CRITICISM MAY AS WELL BE MADE TO A
LAY AUDIENCE AS TO A PROFESSIONAL; OFTENTIMES THE LAW IS MODIFIED
THROUGH POPULAR CRITICISM; (FN10) BENTHAM'S STRICTURES ON THE STATE OF
THE COMMON LAW AND DICKENS' NOVELS COME TO MIND.  (FN11)  AND NEEDLESS
TO SAY, A LAWYER MAY CRITICIZE THE LAW-ENFORCEMENT AGENCIES OF THE
GOVERNMENT, AND THE PROSECUTION, EVEN TO THE EXTENT OF SUGGESTING
WRONGDOING ON THEIR PART, WITHOUT BY THAT TOKEN IMPUGNING THE
JUDICIARY.  SIMPLY TO CHARGE, FOR EXAMPLE, THE PROSECUTION WITH THE
KNOWING USE OF PERJURED TESTIMONY IN A CASE IS NOT TO IMPLY IN THE
SLIGHTEST ANY COMPLICITY BY THE JUDGE IN SUCH ACTIONS.  TO CHARGE THAT
THE GOVERNMENT MAKES OVERMUCH USE OF THE CONSPIRACY FORM OF CRIMINAL
PROSECUTION, AND THIS TO BOLSTER WEAK CASES, IS NOT TO SUGGEST ANY
UNSEEMLY COMPLICITY BY THE JUDICIARY IN THE PRACTICE.  (FN12) 

IN LARGE PART, IF NOT ENTIRELY, MATSUOKA'S NOTES OF PETITIONER'S
SPEECH DO NOT REVEAL HER AS DOING MORE THAN THIS.  SHE DWELT
EXTENSIVELY ON THE NATURE OF SMITH ACT TRIALS AND ON CONSPRIACY
PROSECUTIONS.  THE HONOLULU TRIAL, TO BE SURE, WAS THE SETTING FOR HER
REMARKS, BUT THEY DO NOT INDICATE MORE THAN THAT SHE REFERRED TO IT AS
A TYPICAL, PRESENT EXAMPLE OF THE EVILS THOUGHT TO BE ATTENDANT ON SUCH
TRIALS.  THE SPECIFIC STATEMENTS FOUND CENSURABLE (WITHOUT WHICH THE
BRINGING OF THE CHARGE WOULD HAVE BEEN INCONCEIVABLE) ARE NOT IN THE
LEAST INCONSISTENT WITH THIS, EVEN THOUGH THEY MUST BE TAKEN TO RELATE
TO THE TRIAL IN PROGRESS.  THESE SPECIFIC STATEMENTS ARE HARDLY DAMNING
BY THEMSELVES, AND CLEARLY CALL FOR THE LIGHT EXAMINATION IN CONTEXT
MAY GIVE THEM; SO EXAMINED, THEY DO NOT FURNISH ANY BASIS FOR A FINDING
OF PROFESSIONAL MISCONDUCT.  SHE SAID THAT THERE WERE "HORRIBLE" AND
"SHOCKING" THINGS GOING ON AT THE TRIAL, BUT THIS REMARK, INTRODUCTORY
TO THE SPEECH, OF COURSE WAS IN THE CONTEXT OF WHAT SHE FURTHER SAID
ABOUT CONSPIRACY PROSECUTIONS, SMITH ACT TRIALS, AND THE PROSECUTION'S
CONDUCT.  PETITIONER'S STATEMENT THAT A FAIR TRIAL WAS IMPOSSIBLE IN
CONTEXT OBVIOUSLY RELATED TO THE STATE OF LAW AND TO THE CONDUCT OF THE
PROSECUTION AND THE FBI, NOT TO ANYTHING THAT JUDGE WIIG PERSONALLY WAS
DOING OR FAILING TO DO.  IT OCCURRED IMMEDIATELY AFTER AN ACCOUNT OF
THE FBI'S ALLEGED PRESSURING OF WITNESSES.  THE SAME SEEMS CLEARLY THE
CASE WITH THE REMARK ABOUT THE NECESSITY OF SCRAPPING THE RULES OF
EVIDENCE.  (FN13)  THE STATEMENT THAT IF THE TRIAL WENT ON TO A
CONVICTION, NEW CRIMES - THOSE OF THOUGHT OR IDEAS - WOULD BE CREATED
(FN14) COULD HARDLY BE THOUGHT TO REFLECT ON THE TRIAL JUDGE'S
INTEGRITY NO MATTER HOW DIVORCED FROM CONTEXT IT BE CONSIDERED.  HOW
ANY OF THIS REFLECTED ON JUDGE WIIG, EXCEPT INSOFAR AS HE MIGHT BE
THOUGHT TO LOSE STATURE BECAUSE HE WAS A JUDGE IN A LEGAL SYSTEM SAID
TO BE FULL OF IMPERFECTIONS, IS NOT SHOWN.  TO SAY THAT "THE LAW IS A
ASS, A IDIOT" IS NOT TO IMPUGN THE CHARACTER OF THOSE WHO MUST
ADMINISTER IT.  TO SAY THAT PROSECUTORS ARE CORRUPT IS NOT TO IMPUGN
THE CHARACTER OF JUDGES WHO MIGHT BE UNAWARE OF IT, OR BE ABLE TO FIND
NO METHOD UNDER THE LAW OF RESTRAINING THEM.  JUDGE WIIG WAS NOT BY
NAME MENTIONED IN THE SPEECH, AND THERE WAS VIRTUALLY NONE OF
PETITIONER'S COMPLAINTS THAT WAS PHRASED IN TERMS OF WHAT "THE JUDGE"
WAS DOING.  FOR AUGHT THAT APPEARS FROM PETITIONER'S SPEECH, JUDGE WIIG
MIGHT HAVE BEEN TOTALLY OUT OF SYMPATHY, AS A PERSONAL MATTER, WITH THE
SMITH ACT, THE PRACTICE OF TRYING CRIMINAL OFFENSES ON A CONSPIRACY
BASIS, AND THE RULES OF EVIDENCE IN CONSPIRACY TRIALS, BUT FELT BOUND
TO APPLY THE LAW AS LAID DOWN BY HIGHER COURTS.  (FN15) 

EVEN IF SOME PASSAGES CAN BE FOUND WHICH GO SO FAR AS TO IMPLY THAT
JUDGE WIIG WAS TAKING AN ERRONEOUS VIEW OF THE LAW - PERHAPS THE
COMPARISON MADE BETWEEN THE CASE IN THE TERRITORIAL COURTS WHERE A
HEARSAY STATEMENT WAS EXCLUDED AND THE ADMISSION OF EVIDENCE IN THE
SMITH ACT CASE MIGHT BE OF THIS NATURE, AND MUCH IS MADE OF IT HERE
THOUGH THE COMMITTEE AND THE COURTS BELOW MADE NOTHING OF IT - WE THINK
THERE WAS STILL NOTHING IN THE SPEECH WARRANTING THE FINDINGS.  IF
JUDGE WIIG WAS SAID TO BE WRONG ON HIS LAW, IT IS NO MATTER; APPELLATE
COURTS AND LAW REVIEWS SAY THAT OF JUDGES DAILY, AND IT IMPUTES NO
DISGRACE.  DISSENTING OPINIONS IN OUR REPORTS ARE APT TO MAKE
PETITIONER'S SPEECH LOOK LIKE TAME STUFF INDEED.  PETITIONER DID NOT
SAY JUDGE WIIG WAS CORRUPT OR VENAL OR STUPID OR INCOMPETENT.  THE
PUBLIC ATTRIBUTION OF HONEST ERROR TO THEJUDICIARY IS NO CAUSE FOR
PROFESSIONAL DISCIPLINE IN THIS COUNTRY.  SEE IN RE ADES, 6 F. SUPP.
467, 481.  IT MAY BE SAID THAT SOME OF THE AUDIENCE WOULD INFER
IMPROPER COLLUSION WITH THE PROSECUTION FROM A CHARGE OF ERROR
PREJUDICING THE DEFENSE.  SOME LAY PERSONS MAY NOT BE ABLE TO IMAGINE
LEGAL ERROR WITHOUT VENALITY OR COLLUSION, BUT IT WILL NOT DO TO SET
OUR STANDARDS BY THEIR REACTIONS.  WE CAN INDULGE IN NO INVOLVED
SPECULATIONS AS TO PETITIONER'S GUILT BY REASON OF THE IMAGINATIONS OF
OTHERS. 

BUT IT IS SAID THAT WHILE IT MAY BE PROPER FOR AN ATTORNEY TO SAY THE
LAW IS UNFAIR OR THAT JUDGES ARE IN ERROR AS A GENERAL MATTER, IT IS
WRONG FOR COUNSEL OF RECORD TO SAY SO DURING A PENDING CASE.   THE
VERBALIZATION IS THAT IT IS IMPERMISSIBLE TO LITIGATE BY DAY AND
CASTIGATE BY NIGHT.  SEE 260 F.2D, AT 202.  THIS LINE SEEMS CENTRAL TO
THE BAR ASSOCIATION'S ARGUMENT, AS IT APPEARS TO HAVE BEEN TO THE
REASONING OF THE COURT BELOW, (FN16) AND THE DISSENT HERE IS MUCH
INFORMED BY IT, BUT TO US IT SEEMS TOTALLY TO IGNORE THE CHARGES MADE
AND THE FINDINGS.  THE FINDINGS WERE THAT PETITIONER IMPUGNED THE
INTEGRITY OF JUDGE WIIG AND MADE AN IMPROPER ATTACK ON HIS
ADMINISTRATION OF JUSTICE IN THE HONOLULU TRIAL.  A LAWYER DOES NOT
ACQUIRE ANY LICENSE TO DO THESE THINGS BY NOT BEING PRESENTLY ENGAGED
IN A CASE.  THEY ARE EQUALLY SERIOUS WHETHER HE CURRENTLY IS ENGAGED IN
LITIGATION BEFORE THE JUDGE OR NOT.  WE CAN CONCEIVE NO GROUND WHEREBY
THE PENDENCY OF LITIGATION MIGHT BE THOUGHT TO MAKE AN ATTORNEY'S OUT
OF-COURT REMARKS MORE CENSURABLE, OTHER THAN THAT THEY MIGHT TEND TO
OBSTRUCT THE ADMINISTRATION OF JUSTICE.  REMARKS MADE DURING THE COURSE
OF A TRIAL MIGHT TEND TO SUCH OBSTRUCTION WHERE REMARKS MADE AFTERWARDS
WOULD NOT.  BUT THIS DISTINCTION IS FOREIGN TO THIS CASE, BECAUSE THE
CHARGES AND FINDINGS IN NO WAY TURN ON AN ALLEGATION OF OBSTRUCTION OF
JUSTICE, OR OF AN ATTEMPT TO OBSTRUCT JUSTICE, IN A PENDING CASE.  TO
THE CHARGES MADE AND FOUND, IT IS IRRELEVANT WHETHER THE SMITH ACT CASE
WAS STILL PENDING.  JUDGE WIIG REMAINED EQUALLY PROTECTED FROM
STATEMENTS IMPUGNING HIM, AND PETITIONER REMAINED EQUALLY FREE TO MAKE
CRITICAL STATEMENTS THAT DID NOT CROSS THAT LINE.  WE FIND THAT HERS
CANNOT BE SAID TO HAVE DONE SO.  ACCORDINGLY, THE SUSPENSION ORDER,
BASED ON THE CHARGE RELATING TO THE SPEECH, CANNOT STAND. 

II.  PETITIONER WAS ALSO CHARGED BY THE COMMITTEE, AND FOUND BY THE
SUPREME COURT, TO HAVE MISCONDUCTED HERESELF BY INTERVIEWING A JUROR
SHORTLY AFTER THE COMPLETION OF THE SMITH ACT TRIAL.  THE JUROR HAD
BECOME MENTALLY UNSETTLED, IN AN OBVIOUS FASHION, VERY SHORTLY AFTER
THE RENDITION OF THE VERDICT AND APPARENTLY AS A RESULT OF HIS
PARTICIPATION ON THE JURY.  IT WAS AT THIS POINT THAT PETITIONER,
HAVING BEEN FIRST REQUESTED BY HIS SISTER, SEVERAL TIMES INTERVIEWED
HIM, AND SPOKE WITH MEMBERS OF HIS FAMILY.  THE SUPREME COURT
RECOGNIZED THAT IT HAD BEEN COMMON PRACTICE FOR ATTORNEYS IN THE
TERRITORY TO INTERROGATE JURORS AFTER THE RENDITION OF THEIR VERDICTS
AND THEIR DISCHARGES.  NEVERTHELESS, IT FOUND HER ACTION PROFESSIONAL
MISCONDUCT.  THE VERSIONS OF THE WITNESSES AS TO EXACTLY WHAT
TRANSPIRED AT THE INTERVIEWS VARIED CONSIDERABLY, BUT THE COURT MADE NO
FINDINGS OF FACT ON THE MATTER, AND IT IS DIFFICULT TO GRASP THE BASIS
ON WHICH IT SINGLED PETITIONER'S JUROR INTERVIEWS OUT FOR CENSURE
AGAINST THE PATTERN OF A COMMON PRACTICE OF SUCH INTERVIEWS IN THE
TERRITORY.  (FN17)  WHILE THERE IS CLEARLY SOME DELICACY INVOLVED IN
APPROACHING A JUROR WHO HAS BECOME MENTALLY UNSETTLED, EVIDENCE THAT A
JUROR WAS INCOMPETENT AT THE TIME OF THE RENDITION OF THE VERDICT MIGHT
BE ADMISSIBLE TO IMPEACH A VERDICT WHERE EVIDENCE OF THE JURY'S MENTAL
AND REASONING PROCESSES IS NOT.  WHILE THE INTERVIEWS WERE UNDERTAKEN
UNDER UNUSUAL CIRCUMSTANCES, IT IS DIFFICULT TO SAY WHETHER THE
CIRCUMSTANCES FURNISH MORE OR LESS JUSTIFICATION THAN IS PRESENT IN THE
AVERGAGE JUROR INTERVIEW - WHICH WE DO NOT READ THE SUPREME COURT'S
OPINION AS HOLDING CENSURABLE, EXCEPT AS TO THE FUTURE.  (FN18)  THE
LEGAL ETHICS COMMITTEE HAD CHARGED PETITIONER WITH CONCEALMENT OF FACTS
IN HER AFFIDAVIT AS TO THE JUROR INTERVIEW FILED WITH JUDGE WIIG IN
SUPPORT OF HER MOTION FOR A NEW TRIAL FOR THE SMITH ACT DEFENDANTS, BUT
WE DO NOT FIND ANYTHING IN THE SUPREME COURT'S OPINION AGREEING WITH
THESE CHARGES. 

BUT WE NEED NOT EXPLORE FUTHER WHAT THE BASIS WAS FOR THE TERRITORIAL
SUPREME COURT'S FINDING ON THIS CHARGE.  AS TO IT, THE COURT SAID THAT
THE SUSPENSION ORDER IT RENDERED ON THE CHARGE RELATING TO THE SPEECH
WOULD SUFFICE.  (FN19)  THE COURT OF APPEALS WAS OF OPINION THAT IF THE
CHARGE AS TO THE SPEECH WERE INSUPPORTABLE, IN THE PRESENT POSTURE OF
THE CASE THE SUSPENSION COULD NOT STAND, 260 F.2D, AT 202, AND WE
AGREE.  WE CANNOT READ THE SUPREME COURT'S OPINION AS IMPOSING ANY
PENALTY SOLELY BY REASON OF THE INTERVIEW WITH THE JUROR.  ACCORDINGLY,
WE DO NOT BELIEVE IT WOULD BE APPROPRIATE IN THE POSTURE OF THE CASE
FOR US FINALLY TO ADJUDICATE THE VALIDITY OF THE FINDING OF MISCONDUCT
BY REASON OF THE INTERVIEWS. 

III.  THE COURT OF APPEALS EXPRESSED DOUBT AS TO ITS JURISDICTION TO
HEAR THE APPEAL FROM THE TERRITORIAL SUPREME COURT, AND RESPONDENT HERE
URGES THAT THAT COURT WAS WITHOUT JURISDICTION.  SINCE OUR JURISDICTION
TO HEAR THE CASE ON THE MERITS MUST STAND OR FALL WITH THAT OF THE
COURT OF APPEALS, WE EXAMINE THE OBJECTIONS.  THEY ARE WITHOUT MERIT. 
THE COURT OF APPEALS FOR THE NINTH CIRCUIT HAS JURISDICTION OF APPEALS
FROM FINAL JUDGMENTS OF THE SUPREME COURT OF THE TERRITORY OF HAWAII,
PURSUANT TO 28 U.S.C. SEC. 1293, IN "CIVIL CASES WHERE THE VALUE IN
CONTROVERSY EXCEEDS $5,000, EXCLUSIVE OF INTEREST AND COSTS."  (FN20)
THE SUSPENSION ORDER WOULD HAVE THE EFFECT OF REMOVING PETITIONER FROM
THE PRACTICE OF LAW FOR AT LEAST ONE YEAR, AND SHE FILED AN
UNCONTROVERTED AFFIDAVIT THAT HER ANNUAL NET INCOME FROM THE PRACTICE
OF LAW HAD BEEN FOR YEARS, AND WOULD CONTINUE FORESEEABLY, IN EXCESS OF
$5,000.  (FN21)  IT IS INSISTED THAT PETITIONER'S RIGHT CANNOT BE
REDUCED TO MONETARY TERMS, BECAUSE IT IS "PRICELESS," AND SO IT IS, IN
A MANNER OF SPEAKING; BUT BESIDES THE PROFESSIONAL ASPECTS OF HER
STATUS, HER CONTINUANCE IN A SPECIFIC FORM OF GAINFUL EMPLOYMENT IS IN
ISSUE, SEE BRADLEY V. FISHER, 13 WALL.  335, 355, AND HENCE THE
JURISDICTIONAL AMOUNT WAS PRESENT. 

FINALLY, WE FIND NO INHIBITION AS TO THE SCOPE OF REVIEW WE HAVE
GIVEN THE JUDGMENT OF THE TERRITORIAL COURT.  THE TERRITORIAL COURT IS
ONE CREATED UNDER THE SOVEREIGNTY OF THE NATIONAL GOVERNMENT,
O'DONOGHUE V. UNITED STATES, 289 U.S. 516, 535, AND HENCE THIS COURT
(ONCE THE JURISDICTIONAL ACT IS SATISFIED) IS NOT LIMITED AS IT WOULD
BE IN REVIEWING THE JUDGMENT OF THE HIGHEST COURT OF A STATE.  OF
COURSE THIS COURT AND THE COURTS OF APPEALS MUST GIVE THE TERRITORIAL
COURTS FREEDOM IN DEVELOPING PRINCIPLES OF LOCAL LAW, AND IN
INTERPRETING LOCAL LEGISLATION.  SEE BONET V. TEXAS CO., 308 U.S. 463;
DECASTRO V. BOARD OF COMMISSIONERS, 322 U.S. 451, 454-458.  BUT IT
HARDLY NEEDS ELABORATION TO MAKE IT CLEAR THAT THE QUESTION OF THE
TOTAL INSUFFICIENCY OF THE EVIDENCE TO SUSTAIN A SERIOUS CHARGE OF
PROFESSIONAL MISCONDUCT, AGAINST A BACKDROP OF THE CLAIMED
CONSTITUTIONAL RIGHTS OF AN ATTORNEY TO SPEAK AS FREELY AS ANOTHER
CITIZEN, IS NOT ONE WHICH CAN BE SUBSUMED UNDER THE HEADINGS OF LOCAL
PRACTICE, CUSTOMS OR LAW.  REVERSED. 

FN1  THE AFFIRMANCE WAS BY A 4-3 VOTE.  THE APPEAL WAS HEARD EN BANC
BY 9 JUDGES BUT WAS DECIDED BY 7 BECAUSE OF THE RETIREMENT OF ONE JUDGE
AND THE DEATH OF ANOTHER. 

FN2  AT THE CONCLUSION OF THE SMITH ACT TRIAL, DISTRICT JUDGE WIIG
REQUESTED THE LOCAL BAR ASSOCIATION TO INVESTIGATE THE CONDUCT OF
PETITIONER.  THE BAR ASSOCIATION TOOK NO ACTION AS THE ATTORNEY GENERAL
OF THE TERRITORY CONDUCTED AN INVESTIGATION.  AS THE RULES OF THE
SUPREME COURT OF THE TERRITORY THEN STOOD, ONLY THE ATTORNEY GENERAL OR
A PERSON AGGRIEVED COULD FILE CHARGES OF UNPROFESSIONAL CONDUCT AGAINST
AN ATTORNEY.  AFTER INVESTIGATING THE MATTER, THE ATTORNEY GENERAL DID
NOT FILE A COMPLAINT.  A COMMITTEE OF THE BAR ASSOCIATION THEN
PROCEEDED TO STUDY THE QUESTION OF BRINGING CHARGES AGAINST PETITIONER,
AND, IN THE WORDS OF THE THEN PRESIDENT OF THE ASSOCIATION: 

"THE COMMITTEE SUBSEQUENTLY MADE A REPORT TO THE EXECUTIVE BOARD OF
THE ASSOCIATION, RULING THAT A COMPLAINT BE FILED AGAINST MRS.
BOUSLOG.  HOWEVER, UNDER THE RULES THEN IN EXISTENCE - THAT IS, THE
RULES OF THE SUPREME COURT, THE BAR ASSOCIATION COULD NOT BE A
COMPLAINANT.  CONSEQUENTLY, THE MATTER WAS AGAIN REFERRED TO THE
COMMITTEE ON LEGAL ETHICS TO STUDY AMENDMENTS TO THE RULES OF THE
SUPREME COURT, AND THE CHAIRMAN OF THE COMMITTEE ON LEGAL ETHICS TOOK
THE MATTER UP WITH THE CHIEF JUSTICE.  AND AS I RECALL, THE AMENDMENT
TO RULE 19 - THAT IS THE RULE ON COMPLAINTS FOR UNPROFESSIONAL CONDUCT
I THINK WAS AMENDED IN APRIL OF 1954. 

"THEREAFTER, THE CHAIRMAN OF THE COMMITTEE ON LEGAL ETHICS SUBMITTED
A PROPOSED DRAFT OF THE COMPLAINT.  THE EXECUTIVE BOARD STUDIED THE
DRAFT, RECOMMENDED CERTAIN CHANGES, AND THEN, FINALLY, THE FORM OF THE
COMPLAINT WAS, AS FILED, AGREED UPON, AND I, AS PRESIDENT OF THE BAR
ASSOCIATION, WAS AUTHORIZED TO FILE THAT COMPLAINT IN THE NAME OF THE
BAR ASSOCIATION." 

FN3  CANON 1 IS ENTITLED "THE DUTY OF THE LAWYER TO THE COURTS."  IT
READS: 

"IT IS THE DUTY OF THE LAWYER TO MAINTAIN TOWARDS THE COURTS A
RESPECTFUL ATTITUDE, NOT FOR THE SAKE OF THE TEMPORARY INCUMBENT OF THE
JUDICIAL OFFICE, BUT FOR THE MAINTENANCE OF ITS SUPREME IMPORTANCE. 
JUDGES, NOT BEING WHOLLY FREE TO DEFEND THEMSELVES, ARE PECULIARLY
ENTITLED TO RECEIVE THE SUPPORT OF THE BAR AGAINST UNJUST CRITICISM AND
CLAMOR.  WHENEVER THERE IS PROPER GROUND FOR SERIOUS COMPLAINT OF A
JUDICIAL OFFICER, IT IS THE RIGHT AND DUTY OF THE LAWYER TO SUBMIT HIS
GRIEVANCES TO THE PROPER AUTHORITIES.  IN SUCH CASES, BUT NOT
OTHERWISE, SUCH CHARGES SHOULD BE ENCOURAGED AND THE PERSON MAKING THEM
SHOULD BE PROTECTED." 

CANON 22 IS ENTITLED "CANDOR AND FAIRNESS."  IT READS: 

"THE CONDUCT OF THE LAWYER BEFORE THE COURT AND WITH OTHER LAWYERS
SHOULD BE CHARACTERIZED BY CANDOR AND FAIRNESS. 

"IT IS NOT CANDID OR FAIR FOR THE LAWYER KNOWINGLY TO MISQUOTE THE
CONTENTS OF A PAPER, THE TESTIMONY OF A WITNESS, THE LANGUAGE OR THE
ARGUMENT OF OPPOSING COUNSEL, OR THE LANGUAGE OF A DECISION OR A
TEXTBOOK; OR WITH KNOWLEDGE OF ITS INVALIDITY, TO CITE AS AUTHORITY A
DECISION THAT HAS BEEN OVERRULED, OR A STATUTE THAT HAS BEEN REPEALED;
OR IN ARGUMENT TO ASSERT AS A FACT THAT WHICH HAS NOT BEEN PROVED, OR
IN THOSE JURISDICTIONS WHERE A SIDE HAS THE OPENING AND CLOSING
ARGUMENTS TO MISLEAD HIS OPPONENT BY CONCEALING OR WITHHOLDING
POSITIONS IN HIS OPENING ARGUMENT UPON WHICH HIS SIDE THEN INTENDS TO
RELY. 

"IT IS UNPROFESSIONAL AND DISHONORABLE TO DEAL OTHER THAN CANDIDLY
WITH THE FACTS IN TAKING THE STATEMENTS OF WITNESSES, IN DRAWING
AFFIDAVITS AND OTHER DOCUMENTS, AND IN THE PRESENTATION OF CAUSES. 

"A LAWYER SHOULD NOT OFFER EVIDENCE WHICH HE KNOWS THE COURT SHOULD
REJECT, IN ORDER TO GET THE SAME BEFORE THE JURY BY ARGUMENT FOR ITS
ADMISSIBILITY, NOR SHOULD HE ADDRESS TO THE JUDGE ARGUMENTS UPON ANY
POINT NOT PROPERLY CALLING FOR DETERMINATION BY HIM.  NEITHER SHOULD HE
INTRODUCE INTO AN ARGUMENT, ADDRESSED TO THE COURT, REMARKS OR
STATEMENTS INTENDED TO INFLUENCE THE JURY OR BYSTANDERS.    "THESE AND
ALL KINDRED PRACTICES ARE UNPROFESSIONAL AND UNWORTHY OF AN OFFICER OF
THE LAW CHARGED, AS IS THE LAWYER, WITH THE DUTY OF AIDING IN THE
ADMINISTRATION OF JUSTICE." 

WE DO NOT PERCEIVE ANY SPECIFICATION BY THE COMMITTEE OF THE RESPECT
IN WHICH CANON 22 WAS THOUGHT TO HAVE BEEN VIOLATED BY PETITIONER'S
SPEECH, AND SUCH A VIOLATION DOES NOT OCCUR TO US. 

FN4  THE PORTION OF THE ARTICLE, IN THE HILO TRIBUNE-HERALD, THAT
DEALS WITH PETITIONER'S SPEECH IS AS FOLLOWS: 

"MRS. SAWYER, SPEAKING FOR A HALF HOUR, SPOKE OF 'SOME RATHER
SHOCKING AND HORRIBLE THINGS THAT GO ON AT THE TRIAL.' 

"THERE'S 'NO SUCH THING AS A FAIR TRIAL IN A SMITH ACT CASE,' SHE
CHARGED.  'ALL RULES OF EVIDENCE HAVE TO BE SCRAPPED OR THE GOVERNMENT
CAN'T MAKE A CASE.' 

"THEY 'JUST MAKE UP THE RULES AS THEY GO ALONG,' SHE TOLD HER
LISTENERS. 

"'UNLESS WE STOP THE SMITH ACT TRIAL IN ITS TRACKS HERE' THERE WILL
BE A 'NEW CRIME' THAT OF KNOWING WHAT'S IN BOOKS AND WILL LEAD TO 'DARK
AGES OF THOUGHT CONTROL,' ASSERTED THE CHIC AND ATTRACTIVE WOMAN
LAWYER. 

"SHE REFERRED TO READING BY THE PROSECUTION OF BOOKS 'SUPPOSED TO
HAVE BEEN IN A DUFFEL BAG' OWNED BY A WITNESS, HENRY JOHNSON.  SHE
URGED HER LISTENERS TO TELL OTHERS 'WHAT A VICIOUS THING THE SMITH ACT
IS.'  PERSONS ARE 'TRIED FOR BOOKS WRITTEN YEARS AGO' BY OTHERS, SHE
SAID." 

FN5  THE CASE WAS APPLICATION OF PALAKIKO AND MAJORS, 39 HAW.  167,
AFF'D SUB NOM. PALAKIKO V. HARPER, 209 F.2D 75.  THE CASE WAS A HABEAS
CORPUS APPLICATION, IN WHICH PETITIONER SOUGHT TO PUT IN EVIDENCE THE
STATEMENT OF A WOMAN THAT A POLICE OFFICER HAD SAID THAT HE HAD BEATEN
A CONFESSION OUT OF PETITIONER'S CLIENT.  THE TERRITORIAL SUPREME COURT
HELD A LENGTHY EVIDENTIARY HEARING ON THE PETITION, WHICH COVERED MANY
OTHER MATTERS, AND AT IT EXCLUDED THE EVIDENCE IN QUESTION.  THE
COURT'S OPINION DOES NOT DISCUSS THE POINT, BUT IT IS MENTIONED IN THE
COURT OF APPEALS' OPINION ON AFFIRMANCE.  209 F.2D, AT 102-103. 

FN6  ONE OF THE CLASSIC STATEMENTS OF THIS POINT OF VIEW IS MR.
JUSTICE JACKSON'S CONCURRING OPINION IN KRULEWITCH V. UNITED STATES,
336 U.S. 440, 453:  "BUT THE ORDER OF PROOF OF SO SPRAWLING A CHARGE AS
CONSPRIACY IS DIFFICULT FOR A JUDGE TO CONTROL.  AS A PRACTICAL MATTER,
THE ACCUSED OFTEN IS CONFRONTED WITH A HODGEPODGE OF ACTS AND
STATEMENTS BY OTHERS WHICH HE MAY NEVER HAVE AUTHORIZED OR INTENDED OR
EVEN KNOWN ABOUT, BUT WHICH HELP TO PERSUADE THE JURY OF THE EXISTENCE
OF THE CONSPIRACY ITSELF.  IN OTHER WORDS, A CONSPIRACY OFTEN IS PROVED
BY EVIDENCE THAT IS ADMISSIBLE ONLY UPON ASSUMPTION THAT CONSPIRACY
EXISTED.  THE NAIVE ASSUMPTION THAT PREJUDICIAL EFFECTS CAN BE OVERCOME
BY INSTRUCTIONS TO THE JURY  ...  ALL PRACTICING LAWYERS KNOW TO BE
UNMITIGATED FICTION." 

FN7  "THE UNAVAILING PROTEST OF COURTS AGAINST THE GROWING HABIT TO
INDICT FOR CONSPIRACY IN LIEU OF PROSECUTING FOR THE SUBSTANTIVE
OFFENSE ITSELF, OR IN ADDITION THERETO, SUGGESTS THAT LOOSE PRACTICE AS
TO THIS OFFENSE CONSTITUTES A SERIOUS THREAT TO FAIRNESS IN OUR
ADMINISTRATION OF JUSTICE  ...  . 

"THE INTERCHANGEABLE USE OF CONSPIRACY DOCTRINE IN CIVIL AS WELL AS
PENAL PROCEEDINGS OPENS IT TO THE DANGER, ABSENT IN THE CASE OF MANY
CRIMES, THAT A COURT HAVING IN MIND ONLY THE CIVIL SANCTIONS WILL
APPROVE LAX PRACTICES WHICH LATER ARE IMPORTED INTO CRIMINAL
PROCEEDINGS  ...  . 

"THE ORDER OF PROOF OF SO SPRAWLING A CHARGE IS DIFFICULT FOR A JUDGE
TO CONTROL  ...  . 

"THERE ARE MANY PRACTICAL DIFFICULTIES IN DEFENDING AGAINST A CHARGE
OF CONSPIRACY WHICH I WILL NOT ENUMERATE  ...  . 

"A SURVEY CONDUCTED WHICH ACCORDS WITH OUR OBSERVATION, WILL HARDLY
CONVINCE ONE THAT A TRIAL OF THIS KIND IS THE HIGHEST EXEMPLIFICATION
OF THE WORKING OF THE JUDICIAL PROCESS."  JACKSON, J., CONCURRING IN
KRULEWITCH V. UNITED STATES, 336 U.S. 440, 445-446, 451-452, 453, 454. 

FN8  THIS IDEA HAS BEEN EXPRESSED IN THIS COURT ALSO.  SEE THE
DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN DENNIS V. UNITED STATES,
341 U.S. 494, 581, 583, AND THE SEPARATE OPINION OF MR. JUSTICE BLACK
IN YATES V. UNITED STATES, 354 U.S. 298, 343-344. 

FN9  "LOOSE PRACTICE AS TO THIS OFFENSE (CONSPIRACY) CONSTITUTES A
SERIOUS THREAT TO FAIRNESS IN OUR ADMINISTRATION OF JUSTICE."  JACKSON,
J., CONCURRING IN KRULEWITCH V. UNITED STATES, 336 U.S. 440, 446. 

FN10  "ENGLAND HAS JUST COMPLETED A CENTURY OF STRUGGLE FOR
PROCEDURAL REFORM, AND IT IS TO THE ENERGY AND DETERMINATION OF THE
PUBLIC, AND NOT TO THE LEADERSHIP OF THE BAR, THAT THE CREDIT FOR THE
PRESENT ENGLISH PRACTICE IS DUE."  SUNDERLAND, THE ENGLISH STRUGGLE FOR
PROCEDURAL REFORM, 39 HARV. L. REV. 725, 727 (1926). 

FN11  BOTH WERE AT THE BAR.  BENTHAM WAS OF LINCOLN'S INN AND DICKENS
OF THE MIDDLE TEMPLE. 

FN12  "IT IS FOR PROSECUTORS RATHER THAN COURTS TO DETERMINE WHEN TO
USE A SCATTER-GUN TO BRING DOWN THE DEFENDANT  ...  ."  JACKSON, J.,
CONCURRING IN KRULEWITCH V. UNITED STATES, 336 U.S. 440, 452. 

FN13  AGAIN CF. JACKSON, J., CONCURRING IN KRULEWITCH V. UNITED
STATES, 336 U.S. 440, 453-454: "THE HAZARD FROM LOOSE APPLICATION OF
RULES OF EVIDENCE IS AGGRAVATED WHERE THE GOVERNMENT INSTITUTES MASS
TRIALS." 

FN14  IN YATES V. UNITED STATES, 354 U.S. 298, 318, THIS COURT SAID:
"WE ARE THUS FACED WITH THE QUESTION OF WHETHER THE SMITH ACT PROHIBITS
ADVOCACY AND TEACHING OF FORCIBLE OVERTHROW AS AN ABSTRACT PRINCIPLE,
DIVORCED FROM ANY EFFORT TO INSTIGATE ACTION TO THAT END, SO LONG AS
SUCH ADVOCACY OR TEACHING IS ENGAGED IN WITH EVIL INTENT.  WE HOLD THAT
IT DOES NOT." 

THE CONVICTIONS OF PETITIONER'S SMITH ACT TRIAL CLIENTS WERE ALL
REVERSED IN THE COURT OF APPEALS ON THE AUTHORITY OF YATES, AND
JUDGMENT ORDERED ENTERED FOR THEM.  FUJIMOTO V. UNITED STATES, 251 F.2D
342. 

FN15  LOWER FEDERAL COURT JUDGES HAVE IN THE PAST QUESTIONED
CONSPIRACY INDICTMENT PRACTICE.  SEE THE STATEMENT OF THE 1925
CONFERENCE OF SENIOR CIRCUIT JUDGES, AS QUOTED IN ANNUAL REPORT OF THE
ATTORNEY GENERAL, 1925, PP. 5-6; L. HAND, J., IN UNITED STATES V.
FALCONE, 109 F.2D 579, 581. 

FN16  FOR EXAMPLE, THE PETITIONER ARGUED IN THE COURT OF APPEALS THAT
A LAW PROFESSOR AT YALE HAD MADE CRITICISMS IN MORE PUNGENT TERMS THAN
HERS.  SAID THE COURT:  "WE WOULD UPHOLD PROFESSOR RODELL'S RIGHT TO
SAY FROM HIS YALE VANTAGE POINT JUST ABOUT WHAT HE WANTS TO SAY.  BUT
WHEN HE SPEAKS HE IS NOT SIMULTANEOUSLY HARASSING THE VERY COURT IN
WHICH HE IS TRYING AN UNFINISHED CASE."  260 F.2D, AT 200. 

FN17  THE COURT SAID:  "IT APPEARS FROM THE TRANSCRIPT WHICH WE HAVE
EXAMINED PURSUANT TO THE PRETRIAL ORDER HEREIN, THAT HER FIRST VISIT TO
SAID DAVID FULLER (THE JUROR) WAS MADE BY THE RESPONDENT LICENSEE UPON
REQUEST BY HIS SISTER.  IT ALSO APPEARS THAT IT HAS NOT BEEN UNCOMMON,
IF NOT IN FACT COMMON PRACTICE, HERETOFORE AND WITHIN THE TERRITORY OF
HAWAII, FOR ATTORNEYS AS WELL AS OTHERS TO INTERROGATE JURORS, AFTER
RENDITION OF VERDICT BY THEM, AS TO WHAT MAY HAVE BEEN DECISIVE IN
REACHING A VERDICT. 

"HOWEVER, EVEN IF SHE RELIED UPON THE REQUEST OF HIS SISTER WHEN SHE
FIRST VISITED DAVID FULLER, AND UPON A BELIEF THAT IT WAS COMMON
PRACTICE, LOCALLY, TO INTERROGATE TRIAL JURORS AFTER VERDICT, SUCH
RELIANCE THEREON IS NOT ACCEPTABLE AS EXCUSE FOR HER REPEATED VISITS TO
AND STUDIED INTERROGATION OF FULLER UNDER THE CIRCUMSTANCES AND AS SET
FORTH IN HER AFFIDAVIT, INCORPORATED IN THE BILL OF PARTICULARS  ...
."  41 HAW., AT 423-424. 

FN18  THE COURT GAVE A WARNING TO THE FUTURE CONDUCT OF THE BAR THAT
INTERROGATION OF JURORS AS TO OCCURRENCES IN THE JURY ROOM AND AS TO
THE REASONS WHY THE JURY REACHED ITS VERDICT WOULD BE AT THE PERIL OF
THE INTERROGATOR.  41 HAW., AT 425. 

FN19  "HOWEVER, IN THE INSTANT MATTER, THIS COURT WILL LET ITS
HEREINBEFORE EXPRESSED DISCIPLINARY ORDER - SUSPENDING THE SAID
RESPONDENT LICENSEE FROM THE PRACTICE OF LAW IN THE TERRITORIAL COURTS
FOR ONE YEAR AND REQUIRING HER TO PAY COSTS - SUFFICE, ALTHOUGH ALSO
DEEMING GROSS MISCONDUCT HER SAID REPEATED INTERVIEWS WITH AND
INTERROGATIONS OF DAVID FULLER."  IBID. 

FN20  "THE COURTS OF APPEALS FOR THE FIRST AND NINTH CIRCUITS SHALL
HAVE JURISDICTION OF APPEALS FROM ALL FINAL DECISIONS OF THE SUPREME
COURTS OF PUERTO RICO AND HAWAII, RESPECTIVELY IN ALL CASES INVOLVING
THE CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES OR ANY
AUTHORITY EXERCISED THEREUNDER, IN ALL HABEAS CORPUS PROCEEDINGS, AND
IN ALL OTHER CIVIL CASES WHERE THE VALUE IN CONTROVERSY EXCEEDS $5,000,
EXCLUSIVE OF INTEREST AND COSTS."  28 U.S.C. SEC. 1293. 

FN21  "WHERE THE POWER OF ANY COURT OF APPEALS TO REVIEW A CASE
DEPENDS ON THE AMOUNT OR VALUE IN CONTROVERSY, SUCH AMOUNT OR VALUE, IF
NOT OTHERWISE SATISFACTORILY DISCLOSED UPON THE RECORD, MAY BE SHOWN
AND ASCERTAINED BY THE OATH OF A PARTY TO THE CASE OR BY OTHER
COMPETENT EVIDENCE."  28 U.S.C. SEC. 2108. 

FOR CONCURRING OPINION OF MR. JUSTICE BLACK, SEE POST, P. 646. 

FOR OPINION OF MR. JUSTICE STEWART, CONCURRING IN THE RESULT, SEE
POST, P. 646. 

FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR.
JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER, SEE POST,
P. 647. 

FOR DISSENTING OPINION OF MR. JUSTICE CLARK, SEE POST, P. 669. 

 APPENDIX TO OPINION OF MR. JUSTICE BRENNAN. 

THE EXPANDED NOTES OF THE REPORTER, MATSUOKA, RELATIVE TO
PETITIONER'S SPEECH. 

"SHE FOLLOWED SAMUEL M. BENTO, WHO SAID HE WANTED TO SAY GOOD MORNING
TO THE TRIBUNE-HERALD, POINTING GENERALLY TOWARD THE PAPER'S REPORTER
FROM HILO AND THE PAPER'S HONOKAA CORRESPONDENT WHO WERE SITTING SIDE
BY SIDE.  MRS. SAWYER PRECEDED JACK W. HALL.  SHE BEGAN SPEAKING AT 11
A.M. AND ENDED 11:30 A.M. 

"NOTES ON WHAT SHE SAID IN THE ORDER OF HOW SHE PROCEEDED:  THE TRIAL
IS REALLY A TRIAL OF JACK HALL TO WHICH HAS BEEN ADDED SIX OTHERS. 
IT'S TO GET AT THE ILWU. 

"SAID SHE WANTED TO TELL ABOUT SOME RATHER SHOCKING AND HORRIBLE
THINGS THAT GO ON AT THE TRIAL. 

"SHE WAS APPOINTED SOME YEARS AGO (3 OR 4 YEARS AGO) BY A COURT TO
DEFEND A MAN WHO HAD NO MONEY TO HIRE HIS OWN COUNSEL.  HE WAS CHARGED
WITH PIMPING AND PROCURING.  THE COMPLAINING WITNESS IN THE CASE WAS A
WOMAN WHO HAD BEEN IN BUSINESS 20 YEARS IN THE TERRITORY WHO CLAIMED
SHE HAD REFORMED AND REPENTED BUT THIS VICIOUS MAN HAD DRIVEN HER BACK
AGAIN INTO THE BUSINESS.  IT TURNED OUT THAT THE HOTEL WHERE HE HAD
KEPT HER HAD 27 DOORS UNLOCKED.  LIKENED THIS TO PUKAS IN THE SMITH
ACT. 

"SAID MEN IN POWER ARE TRYING TO PUT MEN IN JAIL BECAUSE OF THEIR
THOUGHTS.  AND BOOKS WRITTEN BEFORE HE WAS BORN. 

"ONE OF THE REASONS JACK HALL IS ON TRIAL IS BECAUSE IT IS SAID HE
ONCE GOT A BOOK, THE COMMUNIST MANIFESTO, WRITTEN IN 1898, BEFORE JACK
HALL WAS A GLEAM IN HIS FATHER'S EYE. 

"SHE QUOTED FROM MANIFESTO:  A SPECTRE IS HAUNTING EUROPE; THE
SPECTRE IS COMMUNISM.  SHE EXPLAINED SPECTRE MEANS GHOST.  SAID SPECTRE
STILL SEEMS TO BE HAUNTING PEOPLE TODAY. 

"SHE TURNED NEXT TO CONSPIRACY.  NOTED THERE WAS A CONSPIRACY TRIAL
IN 1937 OF FILIPINO BROTHERS.  CONSPIRACY TO ADVOCATE VIOLENCE AND
CRIMINAL SINDICALISM.  EXPLAINED CONSPIRACY MEANS AGREEMENT. 
GOVERNMENT NEVER HAS USED CONSPIRACY WHEN IT HAD A CASE.  WHEN IT
HASN'T GOT ENOUGH EVIDENCE IT LUMPS A NUMBER TOGETHER AND SAYS THEY
AGREED TO DO SOMETHING.  THE GOVERNMENT DOES NOT SAY  ... ADVOCATED
OVERTHROW BUT SAYS THEY AGREED TO.  CONSPIRACY MEANS TO CHARGE A LOT OF
PEOPLE FOR AGREEING TO DO SOMETHING YOU HAVE NEVER DONE. 

"TOUCHED ON MYTH OF AGENTS OF FBI.  THEY'RE SUPPOSED TO BE EXTRA
SPECIAL.  RADIO PROGRAMS, MOVIES, PUBLICITY TELL HOW WONDERFUL THEY
ARE.  BUT WHEN YOU SEE HUNDREDS OF TAX FRAUD CASES GO BY AND WHEN THEY
SPEND MOST OF THEIR TIME INVESTIGATING PEOPLE'S MINDS, IT'S TIME TO CUT
THEM DOWN TO SIZE.  SAID SHE HAD TOLD THIS TO A HONOLULU GATHERING. 
LABOR DAY?  FBI AGENTS SHOULD BE CALLED FEDERAL COPS.  SAID HAS SLOGAN:
PUT AWAY YOUR THOUGHTS HERE COME THE FEDERAL COPS.  COPS PUSH PEOPLE
AROUND. 

"PAUL CROUCH.  DIFFICULT TO UNDERSTAND WHY HE'S WITNESS.  BUT HE WAS
HERE IN 1924; BECAUSE HE WAS ONCE IN HAWAII, SO GUESS THAT'S WHY.  HE
TESTIFIED WHAT HE DID IN RUSSIA IN 1927.  HE TOLD WHAT HE WAS TOLD BY
GENERALS ETC.  USUALLY YOU CANNOT TESTIFY ON WHAT PEOPLE TOLD YOU WHEN
THERE IS NO CHANCE FOR THOSE TO BE CROSS EXAMINED.  AILEEN FUJIMOTO WAS
FOUR YEARS OLD THEN.  WHAT HAS CROUCH'S GALLOPING OVER THE PLAINS OF
RUSSIA GOT ANY BEARING ON HER.  JACK HALL WAS 13.  BUT THE GOVERNMENT
GOES ON WITH TESTIMONY FOR TWO WEEKS ON WHAT CROUCH DID BETWEEN 1927
AND 1941 WITHOUT EVER MENTIONING THE DEFENDANTS.  "HE TOLD OF
INFILTRATION OF THE ARMED FORCES AND PLOTS  ...  IT USED TO BE THE IDEA
THAT A MAN IS RESPONSIBLE FOR WHAT HE DID AND SAID - NOT WHAT SOMEONE
ELSE DID.  NOT A SINGLE ONE OF THE DEFENDANTS WAS OF AGE AT THE TIME
HE'S TALKING ABOUT.  THE JURY IS NOT GOING TO PAY ATTENTION TO WHAT
CROUCH SAYS.  BUT IT'S THE OLD SMEAR.  THE PROSECUTION SAYS CROUCH DID
THIS AND THAT AND WE (PROSECUTION) SAY THE DEFENDANTS ARE COMMUNIST
PARTY MEMBERS SO THEY MUST HAVE DONE THE SAME. 

"BUT GOVERNMENT PROPAGANDA HAS BEEN GOING ON FOR 10 YEARS BEFORE THE
JURORS WENT INTO THE JURY BOX. 

"IT'S ENOUGH TO SAY A PERSON IS A COMMUNIST TO COOK HIS GOOSE.  THE
GOVERNMENT SAYS THERE WAS AN AGREEMENT TO VIOLATE THE SMITH ACT WHICH
WAS PASSED IN 1940.  THEN THE DEFENDANTS AGREED TO VIOLATE IT BEFORE IT
WAS PASSED.  CROUCH SAID HE WAS AT A COMMUNIST MEETING IN 1941 AND SAW
FIVE OR SIX PEOPLE THERE.  IT WAS THE FIRST TIME HE'D SEEN THEM.  BUT
HE WAS SATISFIED WHEN HE CAME TO HONOLULU 12 YEARS LATER THAT ONE WAS
KOJI ARIYOSHI.  SHE URGED AUDIENCE TRY TO RECALL WHAT THEY DID 12 YEARS
AGO.  SAID SHE CAN'T RECALL DETAILS.  GOD KNOWS NO ONE HAS A MEMORY
THAT GOOD.  YET THEY USE THIS KIND OF TESTIMONY.    "WHY?  BECAUSE THEY
WILL DO ANYTHING AND EVERYTHING NECESSARY TO CONVICT. 

"SOME OF THE WITNESSES TESTIFIED DIFFERENTLY FROM WHAT THEY TESTIFIED
PREVIOUSLY.  THE GOVERNMENT KNOWS THIS BUT DELIBERATELY GOES AHEAD AND
HAVE HIM SAY THINGS IN ORDER TO CONVICT.  MENTIONED IZUKA IN REINECKE
TRIAL TESTIMONY.  SAID SOMETHING ABOUT IZUKA SAYING HE DIDN'T KNOW THE
PARTY ADVOCATED OVERTHROW OF GOVERNMENT UNTIL HE GOT OUT OF PARTY. 

"WITNESSES TESTIFY WHAT GOVERNMENT TELLS THEM TO.  JUST AS THEY READ
PORTIONS OF BOOKS LIKE OVERTHROW THE GOVERNMENT AND LEAVE OUT THE REST
WHICH SAYS CZARIST GOVERNMENT SHOWING IT DEALT WITH RUSSIA. 

"JOHNSON TESTIMONY.  SAID HE CAME BACK FROM SAN FRANCISCO WITH
COMMUNIST BOOKS AND LITERATURE IN A DUFFLE BAG.  HE SAID WHEN HE GOT TO
HONOLULU HE TOLD JACK HALL THE NAMES OF SOME OF THE BOOKS.  THEN THE
GOVERNMENT FOR TWO DAYS READS FROM BOOKS SUPPOSED TO HAVE BEEN IN THE
DUFFEL BAG.  THEY'RE NOT DEALING WITH WHAT JACK HALL SAID.  ON CROSS
EXAMINATION JOHNSON SAID HE DID NOT TELL THE NAMES OF THE BOOKS BUT
JUST SHOWED JACK HALL THE DUFFEL BAG.  SO JACK HALL VIOLATED THE SMITH
ACT BECAUSE HE SAW A DUFFEL BAG WITH SOME BOOKS ON OVERTHROWING THE
GOVERNMENT IN IT.  IT'S SILLY.  WHY DOES THE GOVERNMENT USE YOUR MONEY
AND MINE TO PUT PEOPLE IN JAIL FOR THOUGHTS. 

"THE GOVERNMENT HAS CARRIED ON A BARRAGE OF PROPAGANDA FOR MANY YEARS
AND EXPECTS PEOPLE IN THE JURY TO HAVE HYSTERIA JUST HEARING ABOUT
COMMUNIST IS ENOUGH TO JAIL.  SAID HAS A FRIEND WHO WORKED FOR SEARS
ROEBUCK AND HAS FAMILY OF THREE CHILDREN AND WIFE.  HE MADE A TERRIBLE
MISTAKE ONE TIME.  IN 1941 HE LIVED IN THE SAME HOUSE AS JACK HALL. 
THE FBI WANTED HIM TO TESTIFY.  HE SAID I FEEL JACK HALL IS ONE OF THE
FINEST PEOPLE I HAVE KNOWN.  APPARENTLY THE FBI DIDN'T LIKE THIS.  SO
THEY SUGGESTED TO SEARS AND ROEBUCK TO FIRE HIM BECAUSE HE WOULDN'T
COOPERATE WITH THE GOVERNMENT. 

"HE WASN'T FIRED SO THEY WENT TO THE LOS ANGELES AND CHICAGO OFFICES
OF SEARS AND ROEBUCK AND CONVINCED THEM HE HAD TO BE FIRED.  HE WAS
FIRED BECAUSE HE REFUSED TO BE A STOOL PIGEON AND INFORMER.  THE
GOVERNMENT GETS AWAY WITH IT BY MAKING PEOPLE FEAR THAT IF THEY DON'T
DO AS IT WANTS THEY'LL BE BRANDED RED AND LOSE THEIR JOBS. 

"THERE'S NO SUCH THING AS A FAIR TRIAL IN A SMITH ACT CASE.  ALL
RULES OF EVIDENCE HAVE TO BE SCRAPPED OR THE GOVERNMENT CAN'T MAKE A
CASE. 

"REFERRED TO HER HABEAS CORPUS MOVE IN THE PALAKIKO - MAJORS CASE. 

"SAID A WOMAN CAME TO HER WITH REPORT SHE HEARD VERNON STEVENS SAY HE
BEAT A CONFESSION OUT OF ONE OF THEM.  SHE TESTIFIED BUT THE SUPREME
COURT REFUSED TO LET THE EVIDENCE IN BECAUSE VERNON STEVENS WAS NOT
HERE AND HAD NO CHANCE TO DENY THIS.  WITH THE SAME SITUATION A FEDERAL
JUDGE SITTING ON A FEDERAL BENCH PERMITS CROUCH TO TESTIFY ABOUT 27
YEARS AGO.  WHAT WAS SAID THEN.  IN THE PREVIOUS CASE IT WAS THE LIFE
AND DEATH OF ONE.  AND YET HERE THEY PERMIT A WITNESS TO TELL WHAT WAS
SAID WHEN A DEFENDANT WAS FIVE YEARS OLD. 

"THERE'S NO FAIR TRIAL IN THE CASE.  THEY JUST MAKE UP THE RULES AS
THEY GO ALONG.  THE FIRST SMITH ACT CASE WAS IN 1949 OF THE NEW YORK
TOP LEADERS.  ATTORNEYS CONTENDED THEY SHOULD HAVE THE RIGHT TO SAY
WHAT THEY DID FROM 1924.  MEDINA PERMITTED THEM TO SAY WHAT THE
DEFENDANTS THEMSELVES DID FROM 1934 ON.  BUT THE GOVERNMENT CAN'T MAKE
A CASE IF IT TELLS JUST WHAT THEY DID SO THEY WIDENED THE RULES AND
TELL WHAT OTHER PEOPLE DID YEARS AGO, INCLUDING EVERYTHING INCLUDING
THE KITCHEN SINK. 

"UNLESS WE STOP THE SMITH TRIAL IN ITS TRACKS HERE THERE WILL BE A
NEW CRIME.  PEOPLE WILL BE CHARGED WITH KNOWING WHAT IS INCLUDED IN
BOOKS.  IDEAS. 

"MENTIONED LOS ANGELES TRIAL IN WHICH SOMEONE SAID THERE WAS NO
EVIDENCE THAT SOMEONE HAD INSTRUCTED PERSONS NOT TO READ SOME BOOKS. 

"SAID THERE'LL COME A TIME WHEN THE ONLY THING TO DO IS TO KEEP YOUR
CHILDREN FROM LEARNING HOW TO READ.  THEN NOT ONLY WILL UNIONS BE
DESTROYED BUT SO WILL FREEDOM OF THOUGHTS AND ACTION.  THERE'LL BE DARK
AGES OF THOUGHT CONTROL WHEN PEOPLE WON'T BE ABLE TO SPEAK FREELY IN
TAVERNS AND OTHER PLACES. 

"SHE URGED AUDIENCE TO GO OUT AND EXPLAIN WHAT A VICIOUS THING THE
SMITH ACT IS.  PEOPLE ARE TRIED FOR BOOKS WRITTEN YEARS AGO." 

MR. JUSTICE BLACK, CONCURRING. 

ASSUMING THAT THERE IS A SPECIFIC LAW OF SOME KIND IN HAWAII WHICH
PURPORTS TO AUTHORIZE PETITIONER'S SUSPENSION OR DISBARMENT UPON THE
CHARGES AGAINST HER, I AGREE WITH MR. JUSTICE BRENNAN, FOR THE REASONS
HE GIVES, THAT THE CHARGES WERE NOT PROVED.  MY AGREEMENT IS NOT TO BE
CONSIDERED HOWEVER AS INDICATING A BELIEF THAT HAWAII HAS SUCH A LAW,
THAT IT WOULD BE VALID IF IT EXISTED, OR THAT PETITIONER WAS GIVEN THE
KIND OF TRIAL WHICH FEDERAL COURTS MUST CONSTITUTIONALLY AFFORD BEFORE
IMPOSING SUCH A DRASTIC PUNISHMENT AS WAS INFLICTED ON PETITIONER. 

MR. JUSTICE STEWART, CONCURRING IN THE RESULT. 

IF, AS SUGGESTED BY MY BROTHER FRANKFURTER, THERE RUNS THROUGH THE
PRINCIPAL OPINION AN INTIMATION THAT A LAWYER CAN INVOKE THE
CONSTITUTIONAL RIGHT OF FREE SPEECH TO IMMUNIZE HIMSELF FROM EVEN
HANDED DISCIPLINE FOR PROVEN UNETHICAL CONDUCT, IT IS AN INTIMATION IN
WHICH I DO NOT JOIN.  A LAWYER BELONGS TO A PROFESSION WITH INHERITED
STANDARDS OF PROPRIETY AND HONOR, WHICH EXPERIENCE HAS SHOWN NECESSARY
IN A CALLING DEDICATED TO THE ACCOMPLISHMENT OF JUSTICE.  HE WHO WOULD
FOLLOW THAT CALLING MUST CONFORM TO THOSE STANDARDS. 

OBEDIENCE TO ETHICAL PRECEPTS MAY REQUIRE ABSTENTION FROM WHAT IN
OTHER CIRCUMSTANCES MIGHT BE CONSTITUTIONALLY PROTECTED SPEECH.  FOR
EXAMPLE, I DOUBT THAT A PHYSICIAN WHO BROADCAST THE CONFIDENTIAL
DISCLOSURES OF HIS PATIENTS COULD RELY ON THE CONSTITUTIONAL RIGHT OF
FREE SPEECH TO PROTECT HIM FROM PROFESSIONAL DISCIPLINE. 

IN THE PRESENT CASE, IF IT HAD BEEN CHARGED OR IF IT HAD BEEN FOUND
THAT THE PETITIONER ATTEMPTED TO OBSTRUCT OR PREJUDICE THE DUE
ADMINISTRATION OF JUSTICE BY INTERFERING WITH A FAIR TRIAL, THIS WOULD
BE THE KIND OF A CASE TO WHICH THE LANGUAGE OF THE DISSENTING OPINION
SEEMS LARGELY DIRECTED.*  BUT THAT WAS NOT THE CHARGE HERE, AND IT IS
NOT THE GROUND UPON WHICH THE PETITIONER HAS BEEN DISCIPLINED.  BECAUSE
I AGREE WITH THE CONCLUSION THAT THERE IS NOT ENOUGH IN THIS RECORD TO
SUPPORT THE CHARGE AND THE FINDINGS GROWING OUT OF THE PETITIONER'S
SPEECH IN HONOKAA, I CONCUR IN THE COURT'S JUDGMENT. 

*SEE CANON 20 OF THE CANONS OF PROFESSIONAL ETHICS OF THE AMERICAN
BAR ASSOCIATION.  "NEWSPAPER PUBLICATIONS BY A LAWYER AS TO PENDING OR
ANTICIPATED LITIGATION MAY INTERFERE WITH A FAIR TRIAL IN THE COURTS
AND OTHERWISE PREJUDICE THE DUE ADMINISTRATION OF JUSTICE.  GENERALLY
THEY ARE TO BE CONDEMNED.  IF THE EXTREME CIRCUMSTANCES OF A PARTICULAR
CASE JUSTIFY A STATEMENT TO THE PUBLIC, IT IS UNPROFESSIONAL TO MAKE IT
ANONYMOUSLY.  AN EX PARTE REFERENCE TO THE FACTS SHOULD NOT GO BEYOND
QUOTATION FROM THE RECORDS AND PAPERS ON FILE IN THE COURT; BUT EVEN IN
EXTREME CASES IT IS BETTER TO AVOID ANY EX PARTE STATEMENT."  CANONS OF
PROFESSIONAL AND JUDICIAL ETHICS, AMERICAN BAR ASSOCIATION, 1957. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK, MR. JUSTICE HARLAN
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

PETITIONER WAS SUSPENDED FROM THE PRACTICE OF LAW IN THE TERRITORY OF
HAWAII FOR ONE YEAR.  THE CHARGES ON WHICH THE SUSPENSION ORDER WAS
BASED RELATED (1) TO A SPEECH MADE BY PETITIONER AT HONOKAA, HAWAII,
WHILE A CRIMINAL TRIAL WAS IN PROGRESS, IN HONOLULU, IN WHICH SHE WAS
ATTORNEY OF RECORD AND AN ACTIVE LAWYER FOR THE DEFENSE, AND (2) TO
PETITIONER'S INTERVIEW OF A JUROR, AFTER THE TRIAL HAD TERMINATED IN A
VERDICT OF GUILTY.  THE JUDGE PRESIDING AT THE TRIAL REQUESTED THE BAR
ASSOCIATION TO INVESTIGATE MRS. SAWYER'S CONDUCT.  FOLLOWING
INVESTIGATION, CHARGES AND A RECOMMENDATION OF DISCIPLINARY ACTION WERE
FILED WITH THE HAWAII SUPREME COURT WHICH REFERRED THE MATTER TO ITS
LEGAL ETHICS COMMITTEE.  FOLLOWING A FULL HEARING THE COMMITTEE, IN THE
MAIN, AGREED WITH THE CHARGES OF THE BAR ASSOCIATION AND SUBMITTED ITS
CONCLUSION TO THE HAWAII SUPREME COURT WHICH MADE A DE NOVO EXAMINATION
OF THE RECORD, RESULTING IN THE ORDER NOW BEFORE US.  THE SUSPENSION
ORDER WAS BASED UPON THE HONOKAA SPEECH, ALTHOUGH THE HAWAII SUPREME
COURT ALSO FOUND THAT THE INTERVIEW OF THE JUROR, IN VIEW OF THE
CIRCUMSTANCES UNDER WHICH IT WAS MADE, CONSTITUTED PROFESSIONAL
MISCONDUCT.  THE COURT TODAY FINDS THE CONCLUSIONS OF THE HAWAII
SUPREME COURT, ON WHICH THE SUSPENSION ORDER IS BASED, WANTING IN A
REASONABLE FOUNDATION AND DIRECTS THE HAWAII COURT TO READMIT MRS.
SAWYER TO THE PRACTICE OF LAW.  SINCE THIS COURT FINDS THAT THE
SUSPENSION ORDER WAS GROUNDED ON THE SPEECH, IT LEAVES UNREVIEWED THE
FINDING OF PROFESSIONAL MISCONDUCT GROWING OUT OF THE JUROR INTERVIEW. 
WHEN THE CASE GOES BACK TO HAWAII, THE HAWAII SUPREME COURT IS
APPARENTLY FREE TO TAKE FURTHER DISCIPLINARY ACTION.  PUTTING TO ONE
SIDE THE CHARGE OF MISCONDUCT RELATING TO THE INTERVIEW OF THE JUROR, I
THINK THE JUDGMENT BELOW SHOULD STAND SINCE THE SUSPENSION BASED ON THE
MISCONDUCT RELATING TO THE HONOKAA SPEECH IS FULLY SUPPORTED BY THE
RECORD. 

"WE THINK," SAYS THE OPINION OF MR. JUSTICE BRENNAN, "THAT OUR REVIEW
MAY BE LIMITED TO THE NARROW QUESTION WHETHER THE FACTS ADDUCED ARE
CAPABLE OF SUPPORTING THE FINDINGS THAT THE PETITIONER'S SPEECH
IMPUGNED JUDGE WIIG'S IMPARTIALITY AND FAIRNESS IN CONDUCTING THE SMITH
ACT TRIAL AND THUS REFLECTED UPON HIS INTEGRITY IN THE DISPENSATION OF
JUSTICE IN THAT CASE."  THE LIMITED REACH OF THIS QUESTION IS ILLUMINED
BY THE LIMITED USE MADE OF THE EVIDENCE IN THE RECORD IN MR. JUSTICE
BRENNAN'S OPINION.  IF THE RECORD CONTAINED NO MORE THAN THE PORTIONS
OF IT THAT ARE DRAWN UPON IN MR. JUSTICE BRENNAN'S OPINION, ONE WOULD
BE LED TO CONCLUDE THAT THE SOLE QUESTION IN THE CASE WAS WHETHER THE
VERBAL CONTENT OF THE PETITIONER'S SPEECH, IN DISREGARD OF ALL ELSE,
SUPPORTED THE FINDINGS OF THE HAWAII SUPREME COURT ON WHICH
PETITIONER'S SUSPENSION WAS BASED.  SUCH IS NOT THE ISSUE THAT THE
RECORD AS AN ENTIRETY PRESENTS.  IN THE LAW AS ELSEWHERE THE ANSWER TO
A PROBLEM LARGELY DEPENDS ON THE WAY THE QUESTION IT PRESENTS IS PUT. 
A WRONG QUESTION IS NOT LIKELY TO BEGET A RIGHT ANSWER. 

BROTHER BRENNAN'S FORMULATION OF THE PROBLEM BEFORE US AND THE
RESULTING RESTRICTION ON ITS USE OF THE RECORD, MISCONCEIVE THE
FINDINGS UPON WHICH PETITIONER'S SUSPENSION WAS BASED AND NEGLECT
IMPORTANT ASPECTS OF THE RELEVANT EVIDENCE.  AS A RESULT, THE COURT
SERIOUSLY IMPAIRS THE RESPONSIBILITY OF THE BAR AND, MORE PARTICULARLY,
OF CRIMINAL LAWYERS ENGAGED IN THE CONDUCT OF TRIALS, BY ENCOURAGING
CASES TO BE TRIED ON THE HUSTINGS AND IN THE PRESS, INSTEAD OF WITHIN A
COURT-ROOM AND SUBJECT TO ITS CONSTITUTIONALLY CIRCUMSCRIBED
SAFEGUARDS. 

SINCE THE CASE MUST BE SEEN IN ITS TRUE SCOPE AND PERSPECTIVE, IT IS
IMPORTANT TO STATE IN FULL THE FINDINGS OF THE HAWAII SUPREME COURT
RELEVANT TO THE SPEECH: 

"IT IS THE FINDING AND CONCLUSION OF THIS COURT THAT THE ALLEGATIONS
CONTAINED IN THE COMPLAINT OF THE BAR ASSOCIATION OF HAWAII, MORE
PARTICULARLY PARAGRAPHS 'I,' 'II,' AND 'III' THEREOF  ...  HAVE BEEN
SUSTAINED BY CONVINCING PROOF, BY CREDIBLE EVIDENCE OF MORE THAN A MERE
PREPONDERANCE; THAT THE SAID RESPONDENT LICENSEE, A MEMBER OF THE BAR
OF THIS COURT AND AN ATTORNEY AT LAW, DULY LICENSED AND ADMITTED TO
PRACTICE BEFORE ALL OF THE COURTS OF THE TERRITORY OF HAWAII  ...  DID,
AS CHARGED IN SAID PARAGRAPH II, BEING THEN AN ATTORNEY OF RECORD FOR A
DEFENDANT IN A THEN PENDING CASE IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII  ...  DURING THE COURSE OF TRIAL OF SAID
CASE, TO WIT, ON OR ABOUT DECEMBER 14, 1952, SAY DURING A SPEECH TO A
PUBLIC GATHERING IN HONOKAA, HAWAII, THAT HORRIBLE AND SHOCKING THINGS
WERE GOING ON AT SAID TRIAL; THAT A FAIR TRIAL WAS IMPOSSIBLE; THAT ALL
OF THE RULES OF EVIDENCE WERE BEING SCRAPPED SO THE GOVERNMENT COULD
MAKE ITS CASE; THAT THE RULES OF EVIDENCE AND PROCEDURE WERE MADE UP AS
THE CASE PROCEEDED; AND THAT UNLESS THE TRIAL WAS STOPPED IN ITS TRACKS
CERTAIN NEW CRIMES WOULD BE CREATED  ...  . 

"UPON ITS FINDING AND CONCLUSION AS STATED SUPRA, THIS COURT DEEMS
THAT IN SAYING WHAT SHE DID IN HER SPEECH TO A PUBLIC GATHERING AT
HONOKAA, HAWAII, ON DECEMBER 14, 1952  ...  WHEN THERE WAS THEN PENDING
...  A CASE UNDER THE SMITH ACT  ...  SHE ENGAGED AND PARTICIPATED IN
A WILLFUL ORAL ATTACK UPON THE ADMINISTRATION OF JUSTICE IN AND BY THE
SAID UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII AND BY
DIRECT STATEMENT AND IMPLICATION IMPUGNED THE INTEGRITY OF THE JUDGE
PRESIDING THEREIN AND IN THE SAID PENDING CASE  ...  AND THUS TENDED TO
ALSO CREATE DISRESPECT FOR THE COURTS OF JUSTICE AND JUDICIAL OFFICERS
GENERALLY, CONTRA TO THE OBLIGATIONS AND DUTIES ASSUMED, AS INCIDENT TO
THE LICENSE, BY HER AND BY EVERY PERSON TO WHOM A LICENSE HAS OR SHALL
HAVE BEEN ISSUED BY THIS COURT TO PRACTICE IN THE COURTS OF THE
TERRITORY OF HAWAII.  SHE HAS THUS COMMITTED WHAT THIS COURT CONSIDERS
GROSS MISCONDUCT."  41 HAW.  403, AT 421-423. 

THESE CONCLUSIONS, WHICH ESSENTIALLY ADOPTED THE CHARGES AND
CONCLUSIONS OF THE LEGAL ETHICS COMMITTEE, (FN1) RESTED ON A DE NOVO
EXAMINATION OF THE RECORD OF A FULL HEARING BEFORE THE LEGAL ETHICS
COMMITTEE, "UNPREJUDICED" BY THE FINDINGS OF THAT COMMITTEE OR OF THE
BAR ASSOCIATION.  A MAJORITY OF THE COURT OF APPEALS AGREED THAT THE
RECORD SUPPORTED THE CONCLUSIONS.  260 F.2D 189.  OF COURSE WE ARE NOT
A COURT OF FIRST INSTANCE IN REVIEWING THESE FINDINGS.  WE ARE NOT
EMPOWERED TO SET ASIDE THE CONCLUSIONS OF THE SUPREME COURT OF HAWAII,
AFFIRMED BY THE COURT OF APPEALS, IF ITS CONCLUSIONS FIND REASONABLE
SUPPORT - THAT IS, IF CONSCIENTIOUS JUDGES COULD NOT UNREASONABLY HAVE
REACHED SUCH A CONCLUSION ON THE STRENGTH OF THE EVIDENCE DISCLOSED BY
THE RECORD AND THE INFERENCES FAIRLY TO BE DRAWN FROM IT.    THUS, THE
REAL ISSUE BEFORE US IS WHETHER EVIDENCE SUPPORTS THE CONCLUSION THAT
MRS. SAWYER IN HER SPEECH, IN THE FULL SETTING AND IMPLICATIONS OF WHAT
SHE SAID, ENGAGED IN A WILLFUL ATTACK ON THE ADMINISTRATION OF JUSTICE
IN THE PARTICULAR TRIAL IN WHICH SHE WAS THEN ACTIVELY PARTICIPATING,
AND PATENTLY IMPUGNED, EVEN IF BY CLEAR IMPLICATION RATHER THAN BY
BLATANT WORDS, THE INTEGRITY OF THE PRESIDING JUDGE, AND THEREBY
VIOLATED THE OBLIGATIONS OF ONE IN HER IMMEDIATE SITUATION, JUDGED BY
CONVENTIONAL PROFESSIONAL STANDARDS, SO AS TO BE REASONABLY DEEMED TO
HAVE COMMITTED WHAT THE HAWAII SUPREME COURT TERMED "MISCONDUCT." 

ONE OF THE ELEMENTS OF THE MISCONDUCT FOUND BY THE HAWAII SUPREME
COURT AND THE COURT OF APPEALS WAS, WITHOUT DOUBT, THE ATTACK ON THE
INTEGRITY OF THE JUDGE PRESIDING AT THE TRIAL IN WHICH SHE WAS
ENGAGED.  SURELY THAT DOES NOT MEAN SHE MUST HAVE REFERRED TO JUDGE
WIIG BY NAME.  NOR DOES IT MEAN, AS THE OPINION OF MR. JUSTICE BRENNAN
SEEMS TO ASSUME, THAT ANY EVIDENCE WHICH DOES NOT CONSIST OF A DIRECT
ATTACK ON THE JUDGE IS IRRELEVANT TO THE ULTIMATE QUESTION:  COULD THE
HAWAII SUPREME COURT HAVE FOUND PETITIONER GUILTY OF MISCONDUCT AS SET
FORTH IN ITS OPINION? 

BY CAREFULLY ISOLATING VARIOUS PORTIONS OF THE MATSUOKA NOTES, (FN2)
CONCENTRATING ON THEM AS A SELF-CONTAINED, INSULATED DOCUMENT, THE
OPINION OF MR. JUSTICE BRENNAN LABORS TO PUT A NEUTRAL, IF INDEED NOT
AN INNOCENTLY ATTRACTIVE, PATINA ON MRS. SAWYER'S REMARKS.  BUT THE
SPEECH MUST BE INTERPRETED IN ITS ENTIRETY, NOT DISTORTED AS AN
EXERCISE IN DISJOINTED PARSING.  IT MUST BE PLACED IN ITS CONTEXT OF
TIME AND CIRCUMSTANCES.  NOR CAN WE NEGLECT THE FACT THAT WHAT PEOPLE
SAY IS WHAT OTHERS REASONABLY HEAR AND ARE MEANT TO HEAR.  WHEN THIS IS
DONE WHAT EMERGES IS NO ABSTRACT ATTACK ON THE STATE OF THE LAW, NO
ANALYSIS OF THE DUBIETIES OF THE SMITH ACT TRIALS WITH WHICH EVEN
JUDGES MAY AGREE OR, AT ALL EVENTS, WHICH CRITICS HAVE AN UNQUESTIONED
RIGHT TO MAKE, NO DICKENSIAN STRICTURES ON THE INJUSTICES OF LEGAL
PROCEEDINGS, BUT A PLAINLY CONVEYED ATTACK ON THE CONDUCT OF A
PARTICULAR TRIAL, PRESIDED OVER BY A PARTICULAR JUDGE, INVOLVING
PARTICULAR DEFENDANTS IN WHOSE DEFENSE MRS. SAWYER HERSELF WAS
PROFESSIONALLY ENGAGED.  THERE IS AMPLE SUPPORT FOR THE REASONABLE
CONCLUSION THAT, IN MAKING THE FAIRNESS OF THE CONDUCT OF THIS
PARTICULAR TRIAL THE TARGET OF HER APPEAL TO A CROWD OUTSIDE WHILE THE
TRIAL WAS PROCEEDING INSIDE THE COURT-ROOM, MRS. SAWYER WAS INCLUDING
IN HER ASSAULT THE JUDICIAL OFFICER WHO BOTH IN FACT AND IN COMMON
UNDERSTANDING BEARS ULTIMATE RESPONSIBILITY FOR THE FAIRNESS AND
EVENHANDEDNESS OF JUDICIAL PROCEEDINGS - THE PRESIDING JUDGE.  IN
EXAMINING THIS RECORD SIGHT MUST NEVER BE LOST OF THE LIMITED SCOPE OF
OUR REVIEWING POWER.  WE ARE ONLY CONCERNED WITH WHETHER THE FINDINGS
HAVE FAIR SUPPORT IN THE RECORD.  IF THE FINDINGS ARE SO SUPPORTED WE
HAVE THE RIGHT TO STRIKE DOWN THE SUSPENSION ONLY IF IT TRANSGRESSES
CONSTITUTIONAL LIMITS.  WE MUST INDEED HAVE IN MIND, AS THE OPINION OF
MR. JUSTICE BRENNAN REMINDS US, THE ENTIRE "CONTEXT" OF THIS SPEECH. 
WE MUST ENDEAVOR TO UNDERSTAND THE COMPLETE UTTERANCE IN ITS SETTING,
AS IT SOUNDED AND WAS MEANT TO SOUND TO ITS AUDITORS IN HONOKAA,
HAWAII, ON DECEMBER 14, 1952. 

THE HONOKAA MEETING WAS SPONSORED BY A COMMITTEE FOR THE DEFENSE OF
JACK HALL, ONE OF THE PRINCIPAL DEFENDANTS IN THE SMITH ACT TRIAL THEN
UNDER WAY IN HONOLULU, (FN3) IN WHICH MRS. SAWYER WAS ONE OF THE GROUP
OF LAWYERS FOR THE DEFENSE.  IT WAS PUBLICLY ANNOUNCED AND ADVERTISED
THAT THE TOPIC OF THE MEETING WOULD BE THE SMITH ACT TRIAL IN
HONOLULU.  THE GENERAL PUBLIC WAS INVITED AND MEMBERS OF THE PRESS WERE
PRESENT, AS WELL THEY MIGHT BE EXPECTED TO BE AT A MEETING WHERE AMONG
THE PRINCIPAL SPEAKERS WERE A DEFENDANT AND A DEFENSE ATTORNEY IN A
HIGHLY CONTROVERSIAL TRIAL.  IT WAS CONTROVERSIAL, NOT AN OBSCURE, RUN
OF-THE-MILL TRIAL; IT HAD BEEN RECEIVING FRONTPAGE PUBLICITY IN THE
HAWAII PRESS FOR WEEKS.  (FN4)  THE DEFENDANT HALL HIMSELF WAS ONE OF
THE PRINCIPAL SPEAKERS AND MRS. SAWYER WAS ON THE PLATFORM.  HER
FUNCTION WAS, AS STATED BY MR. HALL, "TO EXPLAIN THE LEGAL ASPECTS OF
THE PROSECUTION."  CERTAINLY THIS SETTING PRECLUDES A NAIVE CONCLUSION
THAT MRS. SAWYER WAS DELIVERING HERSELF OF AN ABSTRACT DISSERTATION ON
SMITH ACT TRIALS, USING ILLUSTRATIONS FROM THE HONOLULU TRIAL MERELY AS
"TYPICAL PRESENT EXAMPLES" OF THE EVILS OF SUCH PROSECUTIONS.  THE
ENVELOPING ENVIRONMENT OF HER TALK, INTENSIFIED BY MUCH OTHER EVIDENCE,
GIVES SUBSTANTIAL SUPPORT TO THE CONCLUSION THAT MRS. SAWYER WAS, IN
THE MAIN, DISCUSSING AND ATTACKING THE HONOLULU TRIAL AND THAT HER MORE
GENERAL CONDEMNATIONS WERE DIRECTED TOWARD, AND DESIGNED TO HAVE
PARTICULAR APPLICABILITY TO, THAT TRIAL. 

THE FULLEST ACCOUNT OF THE SPEECH IS FOUND IN THE NOTES MADE BY
MATSUOKA, A NEWSPAPERMAN COVERING THE MEETINGS.  THESE NOTES, THOUGH
NOT THEMSELVES CONTEMPORANEOUS, ARE A SLIGHTLY EXPANDED VERSION OF
HANDWRITTEN CONTEMPORANEOUS NOTES WHICH MATSUOKA TOOK AND USED AS THE
BASIS FOR HIS NEWS STORY OF THE MEETING.  (FN5) MATSUOKA TESTIFIED THAT
THE NOTES WERE FULL AND ACCURATE AND CONTAINED "ALMOST EVERYTHING" OF
WHAT MRS. SAWYER SAID.  IT IS SIGNIFICANT THAT MORE THAN HALF OF THE
NOTES CONTAIN COMMENTS DIRECTLY AND SOLELY RELATING TO THE HONOLULU
TRIAL.  (FN6)  HOWEVER, THESE NOTES WERE NOT THE ONLY EVIDENCE OF THE
CONTENT OF THE SPEECH.  SEVERAL PERSONS WHO HAD BEEN IN THE AUDIENCE AT
HONOKAA TESTIFIED BEFORE THE LEGAL ETHICS COMMITTEE, AND THEIR
TESTIMONY WAS PART OF THE RECORD CONSIDERED BY THE HAWAII SUPREME
COURT.  THIS TESTIMONY LENDS SUBSTANTIAL SUPPORT TO THE FINDING THAT
THE BASIC INTENT AND PURPORT OF THE SPEECH WAS TO ATTACK THE CONDUCT OF
THE TRIAL IN WHICH MRS. SAWYER HAD BEEN ENGAGED ON THE DAY SHE MADE HER
SPEECH AND WOULD AGAIN BE ENGAGED THE NEXT MORNING. 

THUS, MATSUOKA TESTIFIED THAT MRS. SAWYER SPOKE ABOUT:

"THE SMITH ACT TRIAL; THAT WAS UNDER WAY IN HONOLULU.  SHE SAID SHE
WANTED TO TELL THE PEOPLE ABOUT SOME OF THE SHOCKING, HORRIBLE THINGS
THAT WENT ON, AND THAT THE SMITH ACT TRIAL COULD NOT BE A FAIR ONE, AND
THAT THEY JUST HAD TO GO AROUND AND MAKE RULES TO FIT THE SITUATION. 
THAT WAS, I THINK, THE GENERAL TREND." 

ANOTHER WITNESS TESTIFIED THAT: 

"SHE SAID THAT THE TRIAL WAS AGAINST JACK HALL, AND SIX OTHERS WERE
JUST BROUGHT IN, AND THAT IT PURPOSE WAS TO GET AT THE ILWU; SHE SAID
THAT JACK HALL WAS BEING TRIED ON SOMETHING THAT HE READ MANY YEARS
AGO, AND SHE SAID THAT IN THE SMITH ACT TRIAL THERE WERE NO RULES, AND
THAT THEY WERE MAKING UP THE RULES AS THEY WENT ALONG, AND SHE SAID
THAT THE F.B.I. COULD BE CALLED FEDERAL COPS, AND THAT WHEN THE
GOVERNMENT - THEY WERE STRESSING THIS CASE, AND WHEN THE GOVERNMENT -
THAT WITNESSES WERE AFRAID TO TESTIFY, AND THEY TESTIFIED USUALLY WHAT
THE GOVERNMENT WANTED THEM TO TESTIFY." 

HERE IS ANOTHER QUOTATION FROM THE TESTIMONY BEFORE THE HAWAII
COURT: 

"Q.  WILL YOU TELL THE COMMITTEE WHAT MRS. BOUSLOG SAID? 

"A.  WELL, THAT THE DEFENDANT IN THE SMITH ACT TRIAL CANNOT GET A
FAIR TRIAL. 

"Q.  WHAT SMITH ACT TRIAL WAS SHE TALKING ABOUT? 

"A.  THE ONE IN HONOLULU." 

WHEN TO THIS EVIDENCE IS ADDED THE SETTING WE HAVE DESCRIBED, AND THE
FACT THAT TO THOSE WHO READ THE HAWAII PAPERS "THE" SMITH ACT TRIAL,
WAS THE NOTORIOUS, MUCH-EXPLOITED TRIAL OF THE "HAWAII SEVEN," HOW CAN
ONE REASONABLY ESCAPE, ON THE BASIS OF THE RECORD WHICH DETERMINES OUR
ADJUDICATION, THE CONCLUSION THAT MRS. SAWYER WAS DIRECTLY CASTIGATING
THE ADMINISTRATION OF THE VERY TRIAL IN WHICH SHE WAS THEN
PROFESSIONALLY ENGAGED?  (FN7)  SO VIEWED THE SPECIFIC STATEMENTS WHICH
SHE MADE LOSE THE AURA OF INNOCENCE THE COURT HAS CAST ABOUT THEM AND
SUPPORT THE FINDING THAT MRS. SAWYER WAS GUILTY OF PROFESSIONAL
MISCONDUCT IN ATTACKING THE ADMINISTRATION OF JUSTICE IN THE HONOLULU
TRIAL AND IMPUGNING THE INTEGRITY OF ITS PRESIDING JUDGE. 

MATSUOKA'S NOTES REVEAL THAT MRS. SAWYER BEGAN HER SPEECH BY
ANNOUNCING THAT THE HONOLULU TRIAL WAS "TO GET AT THE ILWU
(INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION)."  SHE NEXT
SAID THAT 'SHE WANTED TO TELL ABOUT SOME RATHER SHOCKING AND HORRIBLE
THINGS THAT GO ON AT THE TRIAL."  THE OPINION OF MR. JUSTICE BRENNAN
VIEWS THESE REMARKS AS MERELY "INTRODUCTORY" TO HER LATER "GENERAL"
COMMENTS, NEGLECTING THE FACT THAT MOST OF HER LATER COMMENTS WERE NOT
GENERAL AT ALL BUT RELATED DIRECTLY TO THE TRIAL OF HALL, AND SIMILARLY
NEGLECTING THE ENTIRE MILIEU IN WHICH THE SPEECH WAS DELIVERED.  THE
REMARKS WERE "INTRODUCTORY," BUT INTRODUCTORY IN THAT THEY SET THE TONE
AND TEMPER OF ALL THAT FOLLOWED.  THERE IS AMPLE TESTIMONY THAT HER
AUDIENCE SO UNDERSTOOD THE REMARKS.  THEIR UNDERSTANDING WAS JUSTIFIED
BY WHAT SHE SAID, AND THAT THEY SO REASONABLY UNDERSTOOD WHAT SHE SAID
ESTABLISHES THE REASONABLENESS OF THE CONCLUSION THAT SHE INTENDED THEM
SO TO UNDERSTAND.  THIS IS THE WAY THE SPEECH WAS REMEMBERED BY ONE OF
HER AUDIENCE. 

"I THINK SHE GAVE A VERY EXCELLENT SPEECH, AND WHAT I CAN REMEMBER
QUITE WELL WAS THAT SHE SAID SHE WOULD LIKE TO TELL THE AUDIENCE OF THE
HORRIBLE AND SHOCKING THINGS THAT WENT ON AT THE SMITH ACT TRIAL IN
HONOLULU, AND SHE ALSO GAVE SEVERAL ILLUSTRATIONS, BUT, I AM SORRY, I
CANNOT REMEMBER THEM  ...  ." 

ANOTHER WITNESS WHEN ASKED IF MRS. SAWYER HAD SAID THAT THERE WERE
SHOCKING AND HORRIBLE THINGS GOING ON, RESPONDED THAT THOSE PHRASES HAD
BEEN SPECIFICALLY DIRECTED AT THE "JACK HALL TRIAL."  AGAIN, AFTER
TESTIFYING THAT MRS. SAWYER HAD SAID THE TRIAL AT HONOLULU WAS NOT A
FAIR TRIAL, STILL ANOTHER WITNESS WENT ON TO SAY THAT "SHE GAVE VARIOUS
EXAMPLES OF THINGS, THAT I DON'T RECALL, THAT WERE GOING ON, IN WHAT
SHE CALLED THE HORRIFYING, SHOCKING TRIAL." 

THAT THIS THEME OF "HORRIFYING AND SHOCKING" SO FORCEFULLY IMPRESSED
ITSELF ON THE PEOPLE TO WHOM SHE SPOKE STRIPS THE WORDS OF ANY NEUTRAL
INTERPRETATION, AND CERTAINLY JUSTIFIES, IF IT DOES NOT COMPEL, THE
INFERENCE THAT IT FORMED THE MOTIF FOR THE ENTIRE SPEECH. 

THIS EVIDENCE ESTABLISHES MORE THAN THAT MRS. SAWYER WAS ATTACKING
THE CONDUCT OF THE HONOLULU TRIAL AT LARGE.  IT CLEARLY REFLECTS ON THE
JUDGE WHO WAS PERMITTING OR PARTICIPATING IN THESE "SHOCKING AND
HORRIBLE" THINGS; AT THE LOWEST IT ALLOWS THE INFERENCE TO BE DRAWN, AS
THE HAWAII SUPREME COURT DID DRAW THE INFERENCE, THAT SHE DID SO
REFLECT.  TO SUGGEST THAT THE ONLY REASONABLE INFERENCE WE MAY DRAW
FROM HER SPEECH IS THAT PETITIONER WAS INDICTING THE GENERAL STATE OF
THE LAW OR MERELY REFLECTING ON THE PROSECUTION, IS TO DENY THE OBVIOUS
FACT THAT WHEN A LAWYER HARANGUES A LAY AUDIENCE, WHOLLY UNSKILLED IN
DRAWING SUBTLE DISTINCTIONS FOR EXCULPATORY PURPOSES, ABOUT THE
HORRIBLE AND SHOCKING THINGS GOING ON IN A JUDICIAL PROCEEDING, HE
INEVITABLY REFLECTS UPON THE TOTAL CONDUCT OF THAT TRIAL AND UPON THE
INTEGRITY OF ALL, NOT EXCLUDING THE JUDGE, RESPONSIBLE FOR THE CONDUCT
OF THE TRIAL.  CERTAINLY IF WE, AS LAWYERS, WERE ADDRESSED BY A DOCTOR
ON THE THEME OF THE HORRIBLE AND SHOCKING THINGS THAT GO ON AT X
HOSPITAL, AND THE SPEAKER DWELT ON SPECIFIC EXAMPLES OF CONDUCT AT THAT
PARTICULAR HOSPITAL, WE WOULD NOT ASSUME THAT MERELY THE GENERAL SAD
STATE OF MEDICINE WAS BEING IMPUGNED RATHER THAN THE DOCTORS AND THE
ADMINISTRATORS AT THAT HOSPITAL. 

PETITIONER ALSO DECLARED IN HER SPEECH THAT "THERE'S NO FAIR TRIAL IN
THE CASE.  THEY JUST MAKE UP THE RULES AS THEY GO ALONG."  AND AGAIN,
"THERE'S NO SUCH THING AS A FAIR TRIAL IN A SMITH ACT CASE.   ALL RULES
OF EVIDENCE HAVE TO BE SCRAPPED OR THE GOVERNMENT CAN'T MAKE A CASE." 
BY AN EVAPORATING READING THESE COMMENTS ARE MADE TO SAY THAT THEY
"OBVIOUSLY RELATED TO THE STATE OF THE LAW, AND TO THE CONDUCT OF THE
PROSECUTION AND THE FBI  ...  ."  BUT THE MATERIALS USED TO ILLUSTRATE
THESE CHARGES WERE SPECIFIC EXAMPLES OF THE UNCONSCIONABLE USE OF
EVIDENCE DRAWN FROM THIS PARTICULAR TRIAL, AS THE DEFENDANT HALL
HIMSELF POINTED OUT AT THE HEARING BEFORE THE LEGAL ETHICS COMMITTEE. 
IN FACT, A LARGE PART OF THE SPEECH WAS TAKEN UP WITH SUCH SPECIFIC
EXAMPLES.  TO SAY THAT PETITIONER WAS ATTACKING THE "STATE OF THE LAW,"
OR THE "PROSECUTION," OR, WHAT IS MORE TO THE POINT, TO SUGGEST THAT
THIS IS THE ONLY CONCLUSION THE HAWAII COURT COULD REASONABLY DRAW,
REJECTS THE OBVIOUS FORCE OF THE EVIDENCE THAT HER REFERENCES
THROUGHOUT WERE TO THE MANNER IN WHICH THIS PARTICULAR TRIAL WAS BEING
CONDUCTED (FN8) AND DISREGARDS, IT CANNOT BE TOO OFTEN EMPHASIZED, THE
WHOLE TONE, NATURE AND SETTING OF HER SPEECH. 

TO BE SURE, PETITIONER OFTEN DID NOT SPECIFY WHO WAS GUILTY OF THE
SINS WHICH SHE CHARGED WERE BEING COMMITTED AT THIS TRIAL; THE SINS OF
UNFAIRNESS, OF IGNORING OR MAKING UP THE RULES, OF DOING "ANYTHING AND
EVERYTHING NECESSARY TO CONVICT."  WHEN SUCH BROADSIDE ATTACKS ARE MADE
A COURT IS NOT COMPELLED TO MAKE THE INGENUOUS ASSUMPTION THAT THEY
WERE DIRECTED ONLY AT THOSE WHO ARE LEGITIMATELY SUBJECT TO SUCH
ATTACK, WHEN IT IS MADE BY A TRIAL LAWYER IN THE MIDST OF A CASE IN A
HARANGUING SPEECH TO A PUBLIC GATHERING.  IT TAKES NO MASTER OF
PSYCHOLOGY TO KNOW THAT IF THE SPEAKER DOES NOT DISCRIMINATE NEITHER
WILL THE AUDIENCE.  INEVITABLY THE ACCUSATION COVERS ALL THOSE WHO IN
THE COMMON UNDERSTANDING HAVE RESPONSIBILITY.  WHATEVER SECRET
RESERVATIONS THE SPEAKER MAY HAVE WHEN HE SPEAKS DOES NOT INFUSE WHAT
HE CONVEYS.  EVEN THE MOST SOPHISTICATED AUDIENCE IS NOT SO TRAINED IN
WITHHOLDING JUDGMENT THAT THE HEAVY AND REPEATED CHARGES OF UNFAIRNESS
IN THE CONDUCT OF THIS TRIAL IMPLIEDLY RELIEVED THE PRESIDING JUDGE,
WHO BEARS BASIC RESPONSIBILITY FOR JUDICIAL PROCEEDINGS, OF ALL
RESPONSIBILITY FOR THIS UNFAIRNESS.    MORE THAN THAT, THE ATTACK ON
THE JUDGE PRESIDING AT THE TRIAL DOES NOT REST MERELY ON IMPLICATION. 
IT WAS DIRECT AND CLEAR.  AGAIN THE REMARKS ABOUT UNFAIRNESS AND THE
RULES THAT WERE "MADE UP" MUST BE READ NOT IN ISOLATION BUT IN
CONTEXT.  AFTER OUTLINING SEVERAL EXAMPLES OF WHAT SHE CONSIDERED TO BE
THE OUTRAGEOUS EVIDENCE BEING ADMITTED IN THIS CASE, PETITIONER MADE
HER REMARK THAT THERE WAS "NO SUCH THING AS A FAIR TRIAL IN A SMITH ACT
CASE.  ALL RULES OF EVIDENCE HAVE TO BE SCRAPPED OR THE GOVERNMENT
CAN'T MAKE A CASE."  MATSUOKA'S NOTES REVEAL THAT SHE THEN PROCEEDED TO
ILLUSTRATE THIS REMARK BY RELATING THAT IN AN EARLIER CASE OF HERS, IN
WHICH, THE VOLUNTARINESS OF AN ACCUSED'S CONFESSION HAD BEEN IN ISSUE,
"A WOMAN CAME TO HER WITH REPORT SHE HEARD VERNON STEVENS (STEVENS WAS
A POLICE OFFICER) SAY HE BEAT A CONFESSION OUT OF ONE OF THEM.  SHE
TESTIFIED BUT THE SUPREME COURT (OF HAWAII) REFUSED TO LET THE EVIDENCE
IN BECAUSE VERNON STEVENS WAS NOT HERE AND HAD NO CHANCE TO DENY THIS. 
WITH THE SAME SITUATION A FEDERAL JUDGE SITTING ON A FEDERAL BENCH
PERMITS CROUCH (FN9) TO TESTIFY ABOUT 27 YEARS AGO.  WHAT WAS SAID
THEN.  IN THE PREVIOUS CASE IT WAS THE LIFE AND DEATH OF ONE.  AND YET
HERE THEY PERMIT A WITNESS TO TELL WHAT WAS SAID WHEN A DEFENDANT WAS
FIVE YEARS OLD."  THIS GRAPHIC ILLUSTRATION WAS FOLLOWED BY THE REMARK
THAT "THERE'S NO FAIR TRIAL IN THE CASE.  THEY JUST MAKE UP THE RULES
AS THEY GO ALONG."  CROUCH WAS A WITNESS IN THE HONOLULU TRIAL WHOSE
TESTIMONY HAD BEEN ATTACKED EARLIER IN THE SPEECH, AND THE "FEDERAL
JUDGE" WAS JUDGE WIIG WHO WAS PRESIDING OVER THAT TRIAL.  THIS PORTION
OF THE SPEECH DISPELS ANY ILLUSIONS THAT THE CONDEMNATORY REMARKS MADE
BY PETITIONER COULD NOT REASONABLY BE THOUGHT TO RELATE TO THE CONDUCT
OF THIS TRIAL.  IN THE CONTEXT OF THE ENTIRE SPEECH IT IS INESCAPABLY A
DIRECT REFLECTION ON THE FAIRNESS AND INTEGRITY OF THIS PARTICULAR
JUDGE IN THIS PARTICULAR CASE.  THIS WAS NO ABSTRACT ASSAULT ON THE
RIGORS OF HEARSAY.  PETITIONER ATTACKED THE FAIRNESS OF THE TRIAL AND
THE SCRAPPING OF THE RULES OF EVIDENCE.  SHE THEN POINTED TO A RULING
OF JUDGE WIIG WHICH SHE SAID WAS HIGHLY PREJUDICIAL AND HARDLY LEFT
DOUBT THAT IT WAS MADE IN THIS PARTICULAR TRIAL.  SHE THEN REPEATED HER
CHARGE THAT THE TRIAL WAS UNFAIR AND THE RULES MADE UP.  TO SUGGEST
THAT THE ONLY REASONABLE INFERENCE TO BE DRAWN FROM THESE REMARKS IS
THAT THE CONDUCT OF THE PROSECUTION OR THE LAW OF EVIDENCE IN THE
ABSTRACT WAS IMPUGNED, IS REALLY ASKING TOO MUCH FROM JUDGES, EVEN IF
WE ACCEPT MR. JUSTICE HOLMES' VIEW THAT JUDGES "ARE APT TO BE NAIF,
SIMPLE-MINDED MEN."  HOLMES, COLLECTED LEGAL PAPERS, P. 295.  THE
ATTACKS ON FAIRNESS AND THE MISUSE OF RULES ARE MADE VIVID BY THE
ILLUSTRATION USED - AND THAT ILLUSTRATION DIRECTLY INVOLVED JUDGE
WIIG.  (FN10) 

IT IS TRUE THAT THE CHARGES WHICH WERE FOUND PROVEN AS THE BASIS OF
THE SUSPENSION DID NOT STATE IN TERMS THAT PETITIONER INTENDED TO
OBSTRUCT JUSTICE.  TO REVERSE THE TWO COURTS BELOW ON THIS GROUND IS TO
RESURRECT THE WORST NICETIES OF LONG-INTERRED COMMON-LAW PLEADING.  THE
CHARGES ON THE BASIS OF WHICH THE PETITIONER WAS FOUND GUILTY OF
MISCONDUCT ARE NOT TO BE READ WITH "THE INABILITY OF THE SEVENTEENTH
CENTURY COMMON LAW TO UNDERSTAND OR ACCEPT A PLEADING THAT DID NOT
EXCLUDE EVERY MISINTERPRETATION CAPABLE OF OCCURRING TO INTELLIGENCE
FIRED WITH A DESIRE TO PERVERT."  PARAISO V. UNITED STATES, 207 U.S.
368, 372.  IT WAS FOUND THAT HER ATTACKS ON THE FAIRNESS OF THE TRIAL
AND THE INTEGRITY OF THE JUDGE AT A "PUBLIC" MEETING, WHILE SHE WAS
ACTIVELY ENGAGED IN THE CONDUCT OF THE DEFENSE, ROSE TO THE LEVEL OF
"GROSS MISCONDUCT."  THIS IS NOT A CHARGE OF AN ATTACK MADE IN A
PRIVATE CONVERSATION BETWEEN FRIENDS.  WHETHER THERE HAS BEEN
PROFESSIONAL MISCONDUCT MUST DEPEND UPON THE SITUATION IN WHICH
IMPROPER REMARKS WERE UTTERED.  THUS, WE WOULD HAVE TO IGNORE WHAT THE
HAWAII COURT HAD BEFORE IT AND WAS COMPELLED TO CONSIDER, DID WE NOT
TAKE INTO ACCOUNT THE SEVERELY AGGRAVATING CIRCUMSTANCES UNDER WHICH
THIS SPEECH WAS MADE.  THIS ATTACK WAS MADE AT A PUBLIC GATHERING
ANNOUNCED AS SUCH.  IT WAS ADVERTISED AS A DISCUSSION OF THE SMITH ACT
TRIAL THEN UNDER WAY.  THAT TRIAL WAS A MATTER OF GREAT CONTROVERSY AND
PUBLIC INTEREST AND WAS BEING REPORTED DAILY ON THE FRONT PAGE OF THE
HONOLULU NEWSPAPERS.  (FN11)  IT IS TRUE THAT THE SPEECH WAS MADE ON
THE ISLAND OF HAWAII, NOT ON OAHU WHERE THE TRIAL TOOK PLACE.  HOWEVER,
HAWAII IN 1952 WAS NOT THE INACCESSIBLE WILDS OF AFRICA IN THE TIME OF
DR. LIVINGSTON, BUT PART OF A COMMUNITY BOUND TOGETHER BY MODERN MEANS
OF COMMUNICATION AND TRANSPORTATION, AND NEWS COULD BE, AND WAS IN THIS
VERY CASE, TRANSMITTED INSTANTANEOUSLY BY RADIOPHONE TO HONOLULU.  SEE
THE HONOLULU STAR BULLETIN FOR DEC. 15, 1952, P. 5.  THE NEWS STORY OF
PETITIONER'S SPEECH WAS IN THE HONOLULU NEWSPAPERS THE NEXT DAY.  IBID.
THE SPEECH WAS MADE AT A TIME WHEN MOTIONS CONCERNING THE VERY
EVIDENCE WHICH PETITIONER WAS CASTIGATING WERE STILL SUB JUDICE.  THE
ATTACKS ON FAIRNESS, THE DESCRIPTIONS OF THE TRIAL AS HORRIBLE AND
SHOCKING, WERE MADE WHILE THE JURY WAS OPEN AND RECEPTIVE TO MEDIA OF
COMMUNICATION, TO THE IMPREGNATING ATMOSPHERE TO WHICH JURIES,
CERTAINLY IN THIS COUNTRY, ARE SUBJECTED.  EVEN THOUGH PETITIONER MAY
NOT HAVE HAD A PROVABLE DESIRE, THE SPECIFIC INTENT, TO AFFECT THE
PENDING TRIAL AND ITS OUTCOME, ARE WE REALLY REQUIRED TO ATTRIBUTE TO
THE PETITIONER A CHILD-LIKE UNAWARENESS OF THE INEVITABILITY THAT HER
REMARKS WOULD BE REPORTED AND FIND THEIR WAY TO JUDGE OR JURY, AS THEY
DID?  THE VERY NEXT DAY THE SPEECH CAME TO THE JUDGE'S ATTENTION AND
REGISTERED SO POWERFULLY THAT HE FELT CALLED UPON TO DEFEND HIS CONDUCT
OF THE TRIAL IN OPEN COURT. 

THE RECORD IS THUS REPLETE WITH EVIDENCE TO SUPPORT THE CONCLUSION
THAT VIRTUALLY THE ENTIRE SPEECH CONSTITUTED A DIRECT ATTACK ON THE
JUDICIAL CONDUCT OF THIS TRIAL DURING ITS PROGRESS BY ONE OF THE
LAWYERS FOR THE DEFENSE.  WHEN A LAWYER ATTACKS THE FAIRNESS, THE
EVENHANDEDNESS, AND THE INTEGRITY OF THE PROCEEDINGS IN A TRIAL IN
WHICH HE HIMSELF IS ACTIVELY ENGAGED, IN THE INFLAMMATORY, PUBLIC
FASHION THAT THIS RECORD REVEALS, SUPPLEMENTED WITH SPECIFIC ATTACK ON
THE PRESIDING JUDGE, HOW CAN THE CONCLUSION BE ESCAPED THAT IT WAS NOT
RULES OF LAW IN THE ABSTRACT WHICH WERE ASSAILED, BUT THE MANNER IN
WHICH THE PROCESSES OF JUSTICE IN THE PARTICULAR CASE WERE BEING
CONDUCTED?  MORE PARTICULARLY, SUCH AN ATTACK INESCAPABLY IMPUGNS THE
INTEGRITY OF THE JUDGE.  IT IS HE WHO TRULY EMBODIES THE LAW AS THE
GUARDIAN OF THE RIGHTS OF DEFENDANTS TO JUSTICE UNDER LAW.  IF A RECORD
IS TO BE CONSIDERED IN ITS ENTIRETY, AND NOT TO BE READ THROUGH
EXCULPATORY GLASSES, THE PROOF WILL BE FOUND TO BE CONCLUSIVE THAT THE
FINDINGS OF THE HAWAII SUPREME COURT ARE SUPPORTED BY THE EVIDENCE, AND
THAT, IN RELATION TO A PENDING TRIAL, THOSE FINDINGS CONSTITUTED A FAIR
BASIS FOR THE CONCLUSION THAT PETITIONER HAS "COMMITTED  ...  GROSS
MISCONDUCT." 

HAVING ARRIVED AT THIS CONCLUSION, OUR TASK IS AT AN END, AND THE
ORDER SUSPENDING MRS. SAWYER FROM THE PRACTICE OF LAW FOR ONE YEAR
SHOULD BE AFFIRMED.  BUT THROUGHOUT THE OPINION OF MR. JUSTICE BRENNAN
RUNS THE STRONG INTIMATION THAT IF THE FINDINGS ARE SUPPORTABLE, A
SUSPENSION BASED ON THEM WOULD BE UNCONSTITUTIONAL.  THIS MUST BE THE
IMPORT OF THE OPINION'S DISCUSSION OF A LAWYER'S RIGHT TO CRITICIZE
LAW.  FOR IF WE FIND THAT THE EVIDENCE SUPPORTS THE FINDINGS, NO MATTER
WHAT WE THINK OF THE WISDOM OF SUSPENDING AN ATTORNEY ON THE BASIS OF
SUCH FINDINGS, WE CAN ONLY REVERSE IF THE CONSTITUTION SO COMMANDS. 
NOR DOES IT MATTER WHETHER THE SUSPENSION WAS BASED ON AN ACT OF THE
HAWAII LEGISLATURE OR WAS AN EXERCISE OF THE JUDICIAL POWER OF THE
HAWAII SUPREME COURT.  THE CONTROLLING QUESTION IS THE POWER OF A
TERRITORY, LIKE A STATE, AS A WHOLE, WHATEVER THE ORGAN THROUGH WHICH A
STATE SPEAKS.  RIPPEY V. TEXAS, 193 U.S. 504, 509; CASTILLO V.
MCCONNICO, 168 U.S. 674, 683; MISSOURI V. DOCKERY, 191 U.S. 165, 171;
IOWA-DES MOINES NATIONAL BANK V. BENNETT, 284 U.S. 239, 244; SKIRIOTES
V. FLORIDA, 313 U.S. 69, 79.  (THERE IS NO BASIS FOR SUGGESTING THAT
CONGRESS HAS RESTRICTED THE JUDICIAL POWER OF HAWAII SO AS TO BAR THE
ACTION TAKEN BY THE SUPREME COURT OF HAWAII.) 

THE PROBLEM RAISED BY THIS CASE - IS THE PARTICULAR CONDUCT IN WHICH
THIS PETITIONER ENGAGED CONSTITUTIONALLY PROTECTED FROM THE
DISCIPLINARY PROCEEDINGS OF COURTS OF LAW?  - CANNOT BE DISPOSED OF BY
GENERAL OBSERVATIONS ABOUT FREEDOM OF SPEECH.  OF COURSE, THE FREE PLAY
OF THE HUMAN MIND IS AN INDISPENSABLE PREREQUISITE OF A FREE SOCIETY. 
AND FREEDOM OF THOUGHT IS MEANINGLESS WITHOUT FREEDOM OF EXPRESSION. 
BUT THE TWO GREAT JUSTICES TO WHOM WE MOSTLY OWE THE SHAPING OF THE
CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH, MR. JUSTICE HOLMES AND
MR. JUSTICE BRANDEIS, DID NOT ERECT FREEDOM OF SPEECH INTO A DOGMA OF
ABSOLUTE VALIDITY NOR ENFORCE IT TO DOCTRINAIRE LIMITS.  TIME, PLACE
AND CIRCUMSTANCES DETERMINE THE CONSTITUTIONAL PROTECTION OF
UTTERANCE.  THE FIRST AMENDMENT AND THE FOURTEENTH AMENDMENT, INSOFAR
AS IT PROTECTS FREEDOM OF SPEECH, ARE NO EXCEPTION TO THE LAW OF LIFE
ENUNCIATED BY ECCLESIASTES:  "FOR EVERYTHING THERE IS A SEASON, AND A
TIME FOR EVERY PURPOSE UNDER HEAVEN."  AND ONE OF THE INSTANCES
SPECIFICALLY ENUMERATED BY THE PREACHER CONTROLS OUR SITUATION:  "A
TIME TO KEEP SILENCE, AND A TIME TO SPEAK."  ECCLES.  3:1, 7.  OF
COURSE, A LAWYER IS A PERSON AND HE TOO HAS A CONSTITUTIONAL FREEDOM OF
UTTERANCE AND MAY EXERCISE IT TO CASTIGATE COURTS AND THEIR
ADMINISTRATION OF JUSTICE.  BUT A LAWYER ACTIVELY PARTICIPATING IN A
TRIAL, PARTICULARLY AN EMOTIONALLY CHARGED CRIMINAL PROSECUTION, IS NOT
MERELY A PERSON AND NOT EVEN MERELY A LAWYER.  IF THE PROSECUTOR IN
THIS CASE HAD FELT HAMPERED BY SOME OF THE RULINGS OF THE TRIAL JUDGE,
AND HAD ASSAILED THE JUDGE FOR SUCH RULINGS AT A MASS MEETING, AND A
CONVICTION HAD FOLLOWED, AND THAT PROSECUTOR HAD BEEN DISCIPLINED FOR
SUCH CONDUCT ACCORDING TO THE ORDERLY PROCEDURE FOR SUCH DISCIPLINARY
ACTION, IS IT THINKABLE THAT THIS COURT WOULD HAVE FOUND THAT SUCH
CONDUCT BY THE PROSECUTOR WAS A CONSTITUTIONALLY PROTECTED EXERCISE OF
HIS FREEDOM OF SPEECH, OR, INDEED, WOULD HAVE ALLOWED THE CONVICTION TO
STAND? 

ONLY THE OTHER DAY, THE COURT OF APPEALS FOR THE SECOND CIRCUIT
(SWAN, MADDEN AND HINCKS, JJ.)  SEVERELY REPRIMANDED A UNITED STATES
ATTORNEY FOR A SPEECH IN RESPONSE TO A PRIOR INVITATION BY ALUMNI OF A
LAW SCHOOL BUT MADE WHILE HE WAS CONDUCTING AN IMPORTANT CRIMINAL
TRIAL, ALTHOUGH THE SPEECH CONTAINED NO REFERENCE TO THE PENDING CASE
OR TO ANY OF ITS DEFENDANTS BUT MERELY "EXPATIATED ON THE MENACE OF
ORGANIZED CRIME."  UNITED STATES V. STROMBERG, 268 F.2D 256, DECIDED
JUNE 15, 1959.   EVEN UNDER THE MOST FAVORING CIRCUMSTANCES - AN ABLE,
FEARLESS, AND FASTIDIOUSLY IMPARTIAL JUDGE, COMPETENT AND SCRUPULOUS
LAWYERS, A BEFITTINGLY AUSTERE COURT-ROOM ATMOSPHERE - TRIAL BY JURY OF
A CRIMINAL CASE WHERE PUBLIC FEELING IS DEEPLY ENGAGED IS NO EASY
ACCOMPLISHMENT, AS EVERY EXPERIENCED LAWYER KNOWS, IF DUE REGARD IS TO
BE HAD TO THE LETTER AND SPIRIT OF THE CONSTITUTION FOR SUCH A TRIAL. 
IT IS DIFFICULT ENOUGH TO SEAL THE COURT-ROOM, AS IT WERE, AGAINST
OUTSIDE PRESSURES.  THE DELICATE SCALES OF JUSTICE OUGHT NOT TO BE
WILLFULLY AGITATED FROM WITHOUT BY ANY OF THE PARTICIPANTS RESPONSIBLE
FOR THE FAIR CONDUCT OF THE TRIAL.  TO BE SURE, A PROSECUTOR CARRIES A
SOMEWHAT HEAVIER RESPONSIBILITY IN THE MAINTENANCE OF THE STANDARDS OF
CRIMINAL JUSTICE THAN DOES COUNSEL FOR THE DEFENSE.  BUT THE DIFFERENCE
IN RESPONSIBILITY IS SURELY NOT SO VAST THAT COUNSEL FOR DEFENSE HAS A
CONSTITUTIONALLY GUARDED FREEDOM TO CONDUCT HIMSELF AS THIS PETITIONER
HAS BEEN FOUND TO DO, WHEN THAT SAME CONDUCT WOULD BRING CONDIGN
PUNISHMENT FOR THE PROSECUTOR. 

WHAT WE ARE CONCERNED WITH IS THE SPECIFIC CONDUCT, AS REVEALED BY
THIS RECORD, OF A PARTICULAR LAWYER, AND NOT WHETHER LIKE FINDINGS
APPLIED TO AN ABSTRACT SITUATION RELATING TO AN ABSTRACT LAWYER WOULD
SUPPORT A SUSPENSION.  ALL THE CIRCUMSTANCES WE HAVE SET FORTH MUST
DETERMINE JUDGMENT.   HERE WAS A PUBLIC MEETING ADDRESSED BY COUNSEL
FOR THE DEFENSE, HARANGUING A CROWD ON THE UNFAIRNESS TO THE DEFENDANT
OF THE PROCEEDINGS IN COURT, WITH THE HIGH PROBABILITY INDEED ALMOST
CERTAINTY UNDER MODERN CONDITIONS THAT THE GOINGS-ON OF THE MEETING
WOULD COME TO THE ATTENTION OF THE PRESIDING JUDGE AND THE JURY.  IT
TOOK PLACE IN A CASE IN WHICH PUBLIC INTEREST AND PUBLIC TEMPERS HAD
BEEN AROUSED.  WHEN THE STORY OF THE MEETING CAME TO THE ATTENTION OF
THE JUDGE, HE FELT OBLIGED PUBLICLY TO DEFEND HIS CONDUCT.  IT IS HARD
TO BELIEVE THAT THIS COURT SHOULD HOLD THAT A MEMBER OF THE LEGAL
PROFESSION IS CONSTITUTIONALLY ENTITLED TO REMOVE HIS CASE FROM THE
COURT IN WHICH HE IS AN OFFICER TO THE PUBLIC AND PRESS, AND EXPRESS TO
THEM HIS GRIEVANCES AGAINST THE CONDUCT OF THE TRIAL AND THE JUDGE. 
"LEGAL TRIALS," SAID THIS COURT, "ARE NOT LIKE ELECTIONS, TO BE WON
THROUGH THE USE OF THE MEETING-HALL, THE RADIO, AND THE NEWSPAPER." 
BRIDGES V. CALIFORNIA, 314 U.S. 252, 271. 

EVEN IN THE ABSENCE OF THE SUBSTANTIAL LIKELIHOOD THAT WHAT WAS SAID
AT A PUBLIC GATHERING WOULD REACH THE JUDGE OR JURY, CONDUCT OF THE
KIND FOUND HERE CANNOT BE DEEMED TO BE PROTECTED BY THE CONSTITUTION. 
AN ATTORNEY ACTIVELY ENGAGED IN THE CONDUCT OF A TRIAL IS NOT MERELY
ANOTHER CITIZEN.   HE IS AN INTIMATE AND TRUSTED AND ESSENTIAL PART OF
THE MACHINERY OF JUSTICE, AN "OFFICER OF THE COURT" IN THE MOST
COMPELLING SENSE.  HE DOES NOT LACK FOR A FORUM IN WHICH TO MAKE HIS
CHARGES OF UNFAIRNESS OR FAILURE TO ADHERE TO PRINCIPLES OF LAW; HE HAS
AMPLE CHANCE TO MAKE SUCH CLAIMS TO THE COURTS IN WHICH HE LITIGATES. 
AS LONG AS ANY TRIBUNAL BRED IN THE FUNDAMENTALS OF OUR LEGAL
TRADITION, ULTIMATELY THIS COURT, STILL EXERCISES JUDICIAL POWER THOSE
CLAIMS WILL BE HEARD AND HEEDED.    CERTAINLY COURTS ARE NOT, AND
CANNOT BE, IMMUNE FROM CRITICISM, AND LAWYERS, OF COURSE, MAY INDULGE
IN CRITICISM.  INDEED, THEY ARE UNDER A SPECIAL RESPONSIBILITY TO
EXERCISE FEARLESSNESS IN DOING SO.  BUT WHEN A LAWYER GOES BEFORE A
PUBLIC GATHERING AND FIERCELY CHARGES THAT THE TRIAL IN WHICH HE IS A
PARTICIPANT IS UNFAIR, THAT THE JUDGE LACKS INTEGRITY, THE
CIRCUMSTANCES UNDER WHICH HE SPEAKS NOT ONLY SHARPEN WHAT HE SAYS BUT
HE IMPARTS TO HIS ATTACK INFLAMING AND WARPING SIGNIFICANCE.  HE SAYS
THAT THE VERY COURT-ROOM INTO WHICH HE WALKS TO PLEAD HIS CASE IS A
TRAVESTY, THAT THE PROCEDURES AND REVIEWS ESTABLISHED TO PROTECT HIS
CLIENT FROM SUCH CONDUCT ARE A SHAM.  "WE ARE A SOCIETY GOVERNED BY
LAW, WHOSE INTEGRITY IT IS THE LAWYER'S SPECIAL ROLE TO GUARD AND
CHAMPION."  IN RE HOWELL, 10 N.J. 139, 142, 89 A.2D 652, 653
(CONCURRING OPINION).  NO MATTER HOW NARROWLY CONCEIVED THIS ROLE MAY
BE, IT HAS BEEN BETRAYED BY A LAWYER WHO HAS ENGAGED IN THE KIND OF
CONDUCT HERE FOUND BY THE HAWAII COURT.  CERTAINLY THIS COURT, THE
SUPREME TRIBUNAL CHARGED WITH MAINTAINING THE RULE OF LAW, SHOULD BE
THE LAST PLACE IN WHICH THESE ATTACKS ON THE FAIRNESS AND INTEGRITY OF
A JUDGE AND THE CONDUCT OF A TRIAL SHOULD FIND CONSTITUTIONAL
SANCTION. 

I WOULD AFFIRM THE JUDGMENT. 

FN1  AFTER THE BAR ASSOCIATION HAD FILED A COMPLAINT AGAINST MRS.
SAWYER, A COMPLAINT THAT WAS ESSENTIALLY IN TERMS OF FINDINGS OF FACT
AS TO WHAT SHE HAD SAID AT HONOKAA, A FULL INVESTIGATION WAS MADE BY
THE LEGAL ETHICS COMMITTEE.  THIS COMMITTEE THEN REPORTED ITS FINDINGS
OF FACT, CONCLUSIONS AND CHARGES TO THE HAWAII SUPREME COURT WHICH
HEARD ARGUMENT AND MADE A DE NOVO EXAMINATION OF THE RECORD.  IT IS
CLEAR THAT THESE CHARGES FULL ENCOMPASSED THE BASIS FOR THE HAWAII
SUPREME COURT'S OWN FINDINGS AND THAT MRS. SAWYER WAS FULLY AND FAIRLY
APPRISED OF THE CHARGES AGAINST HER AND THE FACTUAL MATTERS THAT WERE
IN DISPUTE. 

THE REPORT OF THE LEGAL ETHICS COMMITTEE, INSOFAR AS IT WAS RELEVANT
TO THE SPEECH, CHARGED AS FOLLOWS: 

"THE LEGAL ETHICS COMMITTEE  ...  HAS INVESTIGATED A COMPLAINT FILED
BY THE BAR ASSOCIATION OF HAWAII AND MAKES THIS REPORT OF THE CHARGES,
FACTS AND CONCLUSIONS OF THE COMMITTEE PURSUANT TO RULE 19. 

"THE CHARGES: 

"THE TWO CHARGES MADE IN THIS COMPLAINT HAVE TO DO WITH (1) THE
ALLEGED IMPROPER CONDUCT OF MRS. HARRIET BOUSLOG SAWYER, REFERRED TO IN
THIS REPORT AS 'MRS.  BOUSLOG,' IN MAKING A SPEECH AT HONOKAA, HAWAII,
ON DECEMBER 14, 1952, AND (2) THE ALLEGED IMPROPER CONDUCT IN
CONNECTION WITH HER INTERVIEW OF THE JUROR DAVID P. FULLER, AS MORE
FULLY SET FORTH IN THE BILL OF PARTICULARS DATED SEPTEMBER 29, 1954. 

"THE FACTS: 

"THE COMMITTEE FINDS THAT MRS. BOUSLOG WAS ONE OF THE ATTORNEYS
APPEARING FOR CERTAIN DEFENDANTS IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII ENTITLED 'UNITED STATES OF AMERICA,
PLAINTIFF, AGAINST CHARLES KAZUYUKI FUJIMOTO, ET ALS., DEFENDANTS,'
BEING CRIMINAL 10495 IN THAT COURT; THAT ON DECEMBER 14, 1952, DURING
THE COURSE OF THE TRIAL, SHE MADE A SPEECH AT A PUBLIC GATHERING AT
HONOKAA, AT WHICH SHE SAID, AMONG OTHER THINGS, THAT HORRIBLE AND
SHOCKING THINGS WERE GOING ON AT THE TRIAL; THAT THERE WAS NO FAIR
TRIAL IN THE CASE; THAT THEY JUST MADE UP THE RULES AS THEY WENT ALONG;
THAT UNLESS THE SMITH ACT TRIAL WAS STOPPED IN ITS TRACKS IN HONOLULU
THERE WOULD BE A NEW CRIME. 

     *       *         *         *         * 

"CONCLUSIONS AND RECOMMENDATIONS: 

"THE COMMITTEE IS OF THE UNANIMOUS OPINION THAT THE BAR ASSOCIATION
OF HAWAII HAS SUSTAINED THE ALLEGATIONS IN PARAGRAPH II AND III OF ITS
COMPLAINT AND THAT MRS. BOUSLOG, IN IMPUTING TO THE JUDGE UNFAIRNESS IN
THE CONDUCT OF THE TRIAL, IN IMPUGNING THE INTEGRITY OF THE LOCAL
FEDERAL COURTS AND IN OTHER COMMENTS MADE AT HONOKAA, WAS GUILTY OF
VIOLATION OF CANONS 1 AND 22 OF THE CANONS OF PROFESSIONAL ETHICS OF
THE AMERICAN BAR ASSOCIATION AND SHOULD BE DISCIPLINED FOR THE SAME." 

FN2  THE MATSUOKA NOTES ARE REPRINTED AT 260 F.2D 205-207. 

FN3  SEE FUJIMOTO V. UNITED STATES, 251 F.2D 342. 

FN4  SEE, E.G., THE HONOLULU STAR BULLETIN FOR THE MONTH OF
DECEMBER.  IN FACT, THE SAME DAY ON WHICH MRS. SAWYER'S SPEECH WAS
REPORTED, A BANNER, LEAD HEADLINE ANNOUNCED THE LATEST COURT-ROOM
DEVELOPMENTS, WHILE THE STORY OF THE ACTION TAKEN BY THE COURT IN
RESPONSE TO THE SPEECH OCCUPIED THE FRONT PAGE FOR THE NEXT FEW DAYS. 
SEE THE HONOLULU STAR BULLETIN FOR DEC. 15, 1952, ET SEQ. 

FN5  THE NATURE OF THE EXPANSION WAS EXPLAINED IN THE FOLLOWING
COLLOQUY BETWEEN COUNSEL AND MATSUOKA AT THE HEARING BEFORE THE LEGAL
ETHICS COMMITTEE: 

"Q.  YOU STATED THAT THE TRANSCRIPTION OF THESE NOTES WERE SOMEWHAT
EXPANDED FROM YOUR ORIGINAL NOTES? 

"A.  YES. 

"Q.  WOULD THAT ALSO BE TRUE OF THE NEWSPAPER ARTICLE? 

"A.  WHEN I SAY EXPANDED, I MEAN, LIKE, WHEN I TAKE NOTES, I WOULD
NOT SAY, 'ROBERT DODGE YESTERDAY,' I WOULD SAY, 'DODGE,' OR SOMETHING
LIKE THAT, AND EXPAND THAT TO MAKE IT UNDERSTANDABLE TO THE READER. 

"Q.  BY EXPANDING, NOT ADDING TO IT? 

"A.  NO, NOT ADDING TO. 

"Q.  OR AN ADDITION, OR ANYTHING OF THAT KIND, BUT FILLING OUT WHAT
YOUR NOTES INDICATED, IS THAT IT? 

"A.  THAT'S RIGHT, BY EXPANDING ON IT." 

FN6  IT IS FAIR TO SAY THAT APPROXIMATELY 80 OF THE ABOUT 140 LINES
OF THE MATSUOKA NOTES AS REPRINTED IN THE RECORD DEAL SPECIFICALLY WITH
THIS PARTICULAR TRIAL AND THE EVIDENCE WHICH WAS BEING INTRODUCED IN
HONOLULU.  OF COURSE, AS WE HAVE EXPLAINED ABOVE, MANY OF THE MORE
GENERAL COMMENTS COULD, IN THE CONTEXT OF THIS SPEECH, BE REASONABLY
TAKEN TO REFER TO THE HONOLULU TRIAL. 

FN7  PETITIONER'S LAWYER HAD NO DOUBT REGARDING THE MEANING AND
PURPORT OF THE SPEECH. 

"I WILL SAY TO THE COMMITTEE RIGHT NOW - I HAVE READ THESE SPEECHES
AND I WOULD AGREE WITH THE CONCLUSION IMPLICIT IN MR. DODGE'S QUESTION;
NAMELY THAT THIS WAS A TALK ABOUT WHAT WAS GOING ON IN THE SMITH ACT
TRIAL HERE IN HONOLULU.  NOW, LET'S NOT FOOL OURSELVES ABOUT THAT. 
WE'RE LAWYERS HERE." 

FN8  MRS. SAWYER HERSELF, IN EXPLAINING HER REMARKS TO THE COURT,
POINTED OUT THAT PART OF HER SPEECH "WAS DEVOTED TO A DISCUSSION OF THE
EVIDENCE ON WHICH THE PROSECUTION IN THIS CASE IS SEEKING TO CONVICT
JACK HALL AND THE OTHER SIX DEFENDANTS IN THIS CASE  ...  ." 

THE RECORD DISCLOSES THAT OTHER WITNESSES ALSO UNDERSTOOD THAT HER
REFERENCES WERE TO THE "RULES BEING MADE UP AS THEY WENT ALONG" AT THIS
PARTICULAR TRIAL. 

FN9  THE FACT THAT THE NOTORIOUS CROUCH WAS INVOLVED IS, OF COURSE,
WHOLLY IRRELEVANT TO THE ISSUES IN THIS CASE.  ANY GRIEVANCES ARISING
OUT OF CROUCH'S TESTIMONY WERE PROPERLY TO BE PURSUED IN THE ORDERLY
COURSE OF JUSTICE IN TRIAL AND APPELLATE COURTS AND EVENTUALLY HERE. 
SEE COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S.
115. 

FN10  CERTAINLY MRS. SAWYER'S EXPLANATION OF THESE REMARKS DOES NOT
HELP US RATIONALLY TO AVOID HOLMES' CHARACTERIZATION.  AFTER A
DISCUSSION OF THE REFUSAL OF THE HAWAII SUPREME COURT TO ADMIT THE
EVIDENCE IN THE PREVIOUS TRIAL REFERRED TO BY MRS. SAWYER, PETITIONER
WAS ASKED: 

"MR. BARLOW:  IN OTHER WORDS, WOULD IT BE FAIR TO SAY THAT YOU
PARALLELED THAT WITH THE PHRASE THAT MR. MATSUOKA ATTRIBUTES TO YOU:
'WITH THE SAME SITUATION, A FEDERAL JUDGE, SITTING ON A FEDERAL BENCH,
PERMITS CROUCH TO TESTIFY ABOUT 27 YEARS AGO WHAT WAS SAID THEN'? 

"THE WITNESS:  I USED THE PALAKIKO-MAJORS CASE AS A CONTRAST TO MR.
CROUCH'S TESTIMONY AND THE HEARSAY TESTIMONY IN THE CONSPIRACY CASE. 

"Q.  THAT JUDGE WIIG WAS ALLOWING IN THE PRESENT SMITH ACT CASE, IS
THAT RIGHT? 

"A.  THE MOTIONS HADN'T BEEN ARGUED YET. 

"Q.  NO, BUT THAT JUDGE WIIG WAS ALLOWING IN THE PRESENT SMITH ACT
CASE? 

"A.  YES, HE WAS. 

"Q.  THAT IS WHAT YOU WERE CRITICAL ABOUT?  IS THAT RIGHT? 

"A.  I WAS REPORTING.  I LEFT THAT TO THE AUDIENCE." 

FN11  SEE, E.G., THE HONOLULU STAR BULLETIN FOR THE MONTH OF
DECEMBER.  THERE ARE ALSO REFERENCES THROUGHOUT THE RECORD TO THE
NOTORIOUS NATURE OF THE TRIAL. 

MR. JUSTICE CLARK, DISSENTING. 

WHILE I JOIN IN THE DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, I
THINK IT APPROPRIATE TO ADD A FEW WORDS BY WAY OF EMPHASIS.  THREE
DIFFERENT FACT FINDERS, INCLUDING AN ADMINISTRATIVE BODY, THE SUPREME
COURT OF HAWAII, AND A UNITED STATES COURT OF APPEALS, HAVE AGREED ON
THE FACTS AND CONCLUSIONS OF FACT AS SHOWN BY THIS RECORD.  MRS.
SAWYER, WHILE OF COUNSEL IN A SMITH ACT CASE THEN ON TRIAL BEFORE A
JURY, AND JACK HALL, THE CHIEF DEFENDANT IN THE CASE, EACH MADE A
SPEECH BEFORE A LARGE PUBLIC GATHERING SPONSORED BY A COMMITTEE FOR
HALL'S DEFENSE.  IN MRS. SAWYER'S SPEECH, SHE CHARGED "THAT HORRIBLE
AND SHOCKING THINGS WERE GOING ON AT SAID TRIAL; THAT A FAIR TRIAL WAS
IMPOSSIBLE; THAT ALL OF THE RULES OF EVIDENCE WERE BEING SCRAPPED SO
THE GOVERNMENT COULD MAKE ITS CASE; THAT THE RULES OF EVIDENCE AND
PROCEDURE WERE MADE UP AS THE CASE PROCEEDED; AND THAT UNLESS THE TRIAL
WAS STOPPED IN ITS TRACKS CERTAIN NEW CRIMES WOULD BE CREATED."  NO
ONE, LEAST OF ALL MRS. SAWYER, DENIES THAT SHE SAID WHAT SHE WAS
CHARGED WITH SAYING.  HAWAII HAS DECLARED HER ACTION GROSS MISCONDUCT
VIOLATIVE OF THE CANONS OF PROFESSIONAL ETHICS AS ADOPTED BY ITS
COURT. 

BUT THIS COURT SAYS, STRANGELY ENOUGH, THAT THESE FACTS ARE NOT
"CAPABLE OF SUPPORTING THE FINDINGS" THAT IN SO DOING MRS. SAWYER
"IMPUGNED THE INTEGRITY OF THE JUDGE PRESIDING  ...  IN THE SAID
PENDING CASE  ...  AND THUS TENDED TO ALSO CREATE DISRESPECT FOR THE
COURTS OF JUSTICE AND JUDICIAL OFFICERS GENERALLY."  41 HAW., AT 422. 
THE PRINCIPAL OPINION SAYS THAT MRS. SAWYER'S CONDUCT WAS MERELY AN
INNOCENT GENERAL ATTACK ON THE SMITH ACT AND JUDICIAL TRIALS HELD
THEREUNDER. 

BUT THIS BROAD BRUSH LEAVES THE WHITEWASH TOO THIN.  FOR NOT ONLY
MRS. SAWYER'S TESTIMONY BUT ALSO THE STATEMENT OF HER OWN LAWYER STAND
OUT CLEAR AND UNANSWERABLE.  AT THE INITIAL HEARING IN HAWAII, MRS.
SAWYER'S THEN COUNSEL SAID THAT HERS "WAS A TALK ABOUT WHAT WAS GOING
ON IN THE SMITH ACT TRIAL HERE IN HONOLULU.  NOW LET'S NOT FOOL
OURSELVES ABOUT THAT."  HER PRESENT COUNSEL HAS TALKED THE COURT INTO
DOING JUST THAT AND IN SO DOING HAS ALSO MADE A FOOL OF OUR JUDICIAL
PROCESSES. 

TO SAY THAT THERE IS NO REASONABLE SUPPORT IN THE EVIDENCE FOR
HAWAII'S CONCLUSION, AS DISCLOSED BY A FAIR READING OF THE RECORD SOME
SIX AND A HALF YEARS LATER AND SOME 5,000 MILES AWAY, IS ONLY TO SAY
THAT THE 12 CONCURRING OFFICIALS, ALL OF WHOM ARE TRAINED IN THE LAW
AND WHO UNDER OATH MADE AND PASSED UPON THESE FINDINGS AT TRIAL AND ON
APPEAL, ARRIVED AT A CONCLUSION NO REASONABLE MAN COULD REACH.  BY THUS
AT THIS LATE DATE SECOND-GUESSING THOSE CONSTITUTED AUTHORITIES WHO IN
REGULAR COURSE HAVE DECIDED THE FACTS TO THE CONTRARY, THE COURT
IMPUGNS THE INTELLIGENCE OF THE 12 INDIVIDUALS SO PARTICIPATING AND
SCATTERS TO THE WINDS THE SINCERE EFFORT OF THE SUPREME COURT OF HAWAII
TO PRESERVE AND PROTECT ITS OWN INTEGRITY AND RESPECT AS WELL AS THAT
OF THE LAW.  I REGRET THAT THE HIGHEST COURT IN OUR LAND HAS TODAY SET
THESE WINDS INTO MOTION - PARTICULARLY IN OUR FARTHEST OUTPOST - WHEN
RESPECT FOR THE COURTS, THE BAR, AND THE LAW, AS WELL AS FOR ORDERLY
PROCEDURE, IS SO MUCH NEEDED IN THE WORLD. 
..END :




INGRAM V. UNITED STATES 360 U.S. 672 


NO. 457.  ARGUED APRIL 30, 1959.  - DECIDED JUNE 29, 1959.  - 259 F.2D
886, AFFIRMED IN PART AND REVERSED IN PART. 


THE FOUR PETITIONERS AND CERTAIN OTHERS WERE CONVICTED OF VIOLATING 18
U.S.C. SEC. 371 BY CONSPIRING TO EVADE AND DEFEAT THE PAYMENT OF THE
FEDERAL TAXES IMPOSED ON LOTTERY OPERATIONS.  ALL OF THEM HAD
PARTICIPATED IN THE CONDUCT OF, AND IN AN ATTEMPT TO CONCEAL, LOTTERY
OPERATIONS WHICH WERE VIOLATIONS OF STATE LAW.  TWO OF THE PEITIONERS
WERE PROPRIETORS OF THE ENTERPRISE AND WERE LIABLE FOR THE FEDERAL
WAGERING TAXES, AND THEY FAILED TO PAY THEM.  THE OTHER TWO WERE MERE
EMPLOYEES WHO WERE NOT LIABLE FOR THE PAYMENT OF SUCH TAXES, AND THERE
WAS NOTHING IN THE RECORD TO SHOW THAT THEY KNEW THAT THE TAXES HAD NOT
BEEN PAID.  HELD: 

1.  THE EVIDENCE WAS SUFFICIENT TO SUPPORT A CONCLUSION THAT THE TWO
PETITIONERS WHO WERE PROPRIETORS OF THE BUSINESS WERE PARTIES TO AN
AGREEMENT TO ATTEMPT TO DEFEAT OR EVADE PAYMENT OF THE FEDERAL WAGERING
TAXES IMPOSED UPON THEM, AND THEIR CONVICTIONS ARE SUSTAINED.  PP. 676
677. 

2.  SINCE THERE IS NOTHING IN THE RECORD TO SHOW THAT THE TWO
PETITIONERS WHO WERE MERE EMPLOYEES KNEW OF THE PROPRIETORS' LIABILITY
FOR THESE TAXES, THE RECORD IS INSUFFICIENT TO SHOW THAT THEY WERE
PARTIES TO A CONSPIRACY TO EVADE AND DEFEAT THE PAYMENT OF SUCH TAXES,
AND THEIR CONVICTIONS CANNOT STAND.  PP. 677-681. 

INGRAM ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS AND TWENTY-TWO OTHERS WERE INDICTED AND TRIED FOR
CONSPIRACY TO EVADE AND DEFEAT THE PAYMENT OF THE FEDERAL TAXES IMPOSED
ON LOTTERY OPERATIONS.  THE PETITIONERS AND SIX OTHERS WERE CONVICTED. 
(FN1)  THEIR CONVICTIONS WERE AFFIRMED BY THE COURT OF APPEALS.  259
F.2D 886.  CERTIORARI WAS GRANTED TO EXAMINE THE SCOPE OF THE
CONSPIRACY STATUTE IN THE CONTEXT OF THESE PROVISIONS OF THE INTERNAL
REVENUE CODE.  358 U.S. 905. 

AT THE TRIAL IT WAS ESTABLISHED BY OVERWHELMING EVIDENCE THAT THE
PETITIONERS HAD ENGAGED WITH NUMEROUS OTHERS IN A CLOSELY ORGANIZED AND
LARGE-SCALE OPERATION OF THE NUMBERS GAME IN ATLANTA, GEORGIA, DURING
THE YEARS 1954 TO 1957, THE PERIOD COVERED BY THE INDICTMENT.  (FN2)
THAT ACTIVITY IS A CRIMINAL OFFENSE UNDER GEORGIA LAW.  (FN3)  THE
EVIDENCE ALSO ESTABLISHED IN INTRICATE DETAIL THAT THE PARTICIPANTS IN
THIS LARGE-SCALE ENTERPRISE HAD, THROUGH A VARIETY OF CAREFULLY PLANNED
STRATAGEMS, MADE EVERY EFFORT TO CONCEAL ITS OPERATION.  (FN4)
FINALLY, THE EVIDENCE SHOWED THAT NONE OF THE PETITIONERS HAD PAID ANY
OF THE FEDERAL TAXES IN QUESTION.  THERE WAS NO DIRECT EVIDENCE TO SHOW
THAT ANY OF THE PETITIONERS KNEW OF THESE TAXES. 

IN ADDITION TO THE CONSPIRACY COUNT, THE INDICTMENT UNDER WHICH THE
PETITIONERS WERE TRIED ALSO CONTAINED TWO ADDITIONAL COUNTS CHARGING
THEM WITH THE SUBSTANTIVE OFFENSES OF WILLFUL FAILURE TO PAY THE
SPECIAL TAX IMPOSED BY SEC. 4411 OF THE INTERNAL REVENUE CODE, (FN5) IN
VIOLATION OF SEC. 7203 OF THE CODE, (FN6) AND OF FAILURE TO REGISTER AS
REQUIRED BY SEC. 4412 OF THE CODE, (FN7) IN VIOLATION OF SEC. 7272 OF
THE CODE.  (FN8)  THE TRIAL TOOK PLACE SUBSEQUENT TO THE ANNOUNCEMENT
OF THIS COURT'S DECISION IN UNITED STATES V. CALAMARO, 354 U.S. 351,
AND THE DISTRICT JUDGE CORRECTLY INSTRUCTED THE JURY THAT CONVICTION OF
THE SUBSTANTIVE OFFENSES WOULD BE JUSTIFIED ONLY AS TO ANY DEFENDANTS
FOUND TO BE "WRITERS," "BANKERS," OR TO HAVE "A PROPRIETARY INTEREST IN
SUCH LOTTERY OPERATION."  TWO OF THE PETITIONERS, INGRAM AND JENKINS,
WERE FOUND GUILTY ON BOTH SUBSTANTIVE COUNTS AND DO NOT QUESTION THESE
CONVICTIONS, CONCEDING THE SUFFICIENCY OF THE EVIDENCE TO SHOW THAT
INGRAM WAS THE BANKER AND THAT JENKINS HAD A PROPRIETARY INTEREST IN
THE ENTERPRISE.  THE EVIDENCE SHOWED THAT THE OTHER TWO PETITIONERS,
SMITH AND LAW, WERE RELATIVELY MINOR CLERICAL FUNCTIONARIES AT THE
HEADQUARTERS OF THE OPERATION, AND THEY WERE ACQUITTED ON THE
SUBSTANTIVE COUNTS. 

IN SUM, WHAT THIS RECORD PRESENTS THEN IS A PICTURE OF A LARGE-SCALE
AND PROFITABLE GAMBLING BUSINESS CONDUCTED IN ATLANTA OVER A PERIOD OF
SEVERAL YEARS BY PETITIONERS INGRAM AND JENKINS.  THE BUSINESS INVOLVED
MANY PARTICIPANTS, INCLUDING THE PETITIONERS SMITH AND LAW.  IT WAS A
BUSINESS MADE CRIMINAL BY THE LAWS OF GEORGIA, AND EVERYONE IN THE
ORGANIZATION PARTICIPATED IN TRYING TO KEEP ITS OPERATION SECRET. 
INGRAM AND JENKINS WERE LIABLE FOR THE FEDERAL TAXES IMPOSED BY SECS.
4401 AND 4411 OF THE INTERNAL REVENUE CODE AND WILLFULLY FAILED TO PAY
THEM.  THEY WERE REQUIRED BY SEC. 4412 OF THE CODE TO REGISTER WITH THE
OFFICIAL IN CHARGE OF THE INTERNAL REVENUE DISTRICT, AND THEY FAILED TO
DO SO.  SMITH AND LAW WERE NOT THEMSELVES SUBJECT TO ANY OF THE TAXES
HERE INVOLVED.  THE QUESTION PRESENTED IS WHETHER THIS FACTUAL
FOUNDATION IS SUFFICIENT TO SUPPORT A CONVICTION OF THE PETITIONERS, OR
ANY OF THEM, FOR CONSPIRACY TO ATTEMPT TO EVADE OR DEFEAT FEDERAL
TAXES, "THE GRAVEST OF OFFENSES AGAINST THE REVENUES."  SPIES V. UNITED
STATES, 317 U.S. 492, 499.   WE HOLD THAT IT WAS SUFFICIENT AS TO
INGRAM AND JENKINS, AND INSUFFICIENT AS TO SMITH AND LAW. 

AS TO INGRAM AND JENKINS, THE RECORD IS CLEAR.  THEY WERE
ENTREPRENEURS IN A VAST AND PROFITABLE GAMBLING BUSINESS.  THEY WERE
CLEARLY LIABLE FOR THE SPECIAL TAXES AND REGISTRATION REQUIREMENTS THAT
THE FEDERAL GOVERNMENT HAS IMPOSED UPON THE OPERATORS OF THAT KIND OF
BUSINESS.  UNITED STATES V. KAHRIGER, 345 U.S. 22.  NOT ONLY DID THEY
WILLFULLY FAIL AND NEGLECT TO PAY THESE TAXES, BUT THEY CONSPIRED TO
CONCEAL THE OPERATION OF THE BUSINESS AND THE SOURCE OF THE INCOME UPON
WHICH THE TAX IS IMPOSED. 

IN SPIES V. UNITED STATES THIS COURT HAD OCCASION TO CONSIDER THE
QUANTUM AND TYPE OF EVIDENCE REQUIRED TO SUPPORT A CONVICTION FOR THE
SUBSTANTIVE OFFENSE OF ATTEMPTING TO DEFEAT OR EVADE FEDERAL TAXES AS
CONTRASTED WITH THE LESSER PROOF REQUIRED TO CONVICT OF THE MISDEMEANOR
OF WILLFULLY FAILING TO FILE A RETURN OR TO PAY A TAX.  IT WAS THERE
SAID: 

"WILLFUL BUT PASSIVE NEGLECT OF THE STATUTORY DUTY MAY CONSTITUTE THE
LESSER OFFENSE, BUT TO COMBINE WITH IT A WILLFUL AND POSITIVE ATTEMPT
TO EVADE TAX IN ANY MANNER OR TO DEFEAT IT BY ANY MEANS LIFTS THE
OFFENSE TO THE DEGREE OF FELONY. 

"CONGRESS DID NOT DEFINE OR LIMIT THE METHODS BY WHICH A WILLFUL
ATTEMPT TO DEFEAT AND EVADE MIGHT BE ACCOMPLISHED AND PERHAPS DID NOT
DEFINE LEST ITS EFFORT TO DO SO RESULT IN SOME UNEXPECTED LIMITATION. 
NOR WOULD WE BY DEFINITION CONSTRICT THE SCOPE OF THE CONGRESSIONAL
PROVISION THAT IT MAY BE ACCOMPLISHED 'IN ANY MANNER.'  BY WAY OF
ILLUSTRATION, AND NOT BY WAY OF LIMITATION, WE WOULD THINK AFFIRMATIVE
WILLFUL ATTEMPT MAY BE INFERRED FROM CONDUCT SUCH AS KEEPING A DOUBLE
SET OF BOOKS, MAKING FALSE ENTRIES OR ALTERATIONS, OR FALSE INVOICES OR
DOCUMENTS, DESTRUCTION OF BOOKS OR RECORDS, CONCEALMENT OF ASSETS OR
COVERING UP SOURCES OF INCOME, HANDLING OF ONE'S AFFAIRS TO AVOID
MAKING THE RECORDS USUAL IN TRANSACTIONS OF THE KIND, AND ANY CONDUCT,
THE LIKELY EFFECT OF WHICH WOULD BE TO MISLEAD OR TO CONCEAL.  IF THE
TAX-EVASION MOTIVE PLAYS ANY PART IN SUCH CONDUCT THE OFFENSE MAY BE
MADE OUT EVEN THOUGH THE CONDUCT MAY ALSO SERVE OTHER PURPOSES SUCH AS
CONCEALMENT OF OTHER CRIME."  317 U.S., AT 499. 

IN SPIES, THE COURT WAS DEALING WITH THE SUBSTANTIVE OFFENSE, NOT
WITH A CONSPIRACY TO COMMIT IT. BUT THE EVIDENCE OF AGREEMENT BETWEEN
INGRAM AND JENKINS TO OPERATE THIS GAMBLING ENTERPRISE, WHICH OPERATION
MADE THEM LIABLE FOR FEDERAL TAXES, AND TO CONCEAL ITS OPERATION AND
ITS INCOME IS CLEAR ON THIS RECORD, AND IS VIRTUALLY CONCEDED BY THE
PETITIONERS.  THE EVIDENCE WAS SUFFICIENT TO SUPPORT A CONCLUSION THAT
THEY WERE ENGAGED NOT ONLY IN A CONSPIRACY TO OPERATE AND CONCEAL THEIR
GAMBLING ENTERPRISE, BUT THAT THEY WERE ALSO PARTIES TO AN AGREEMENT TO
ATTEMPT TO DEFEAT OR EVADE THE FEDERAL TAXES IMPOSED UPON THE OPERATORS
OF SUCH A BUSINESS. 

AS TO SMITH AND LAW, THE CASE IS QUITE A DIFFERENT ONE.  WHILE THE
RECORD CLEARLY SUPPORTS A FINDING THAT SMITH AND LAW WERE PARTICIPANTS
IN A CONSPIRACY TO OPERATE A LOTTERY AND TO CONCEAL THAT OPERATION FROM
LOCAL LAW ENFORCEMENT AGENCIES, WE FIND NO WARRANT FOR A FINDING THAT
THEY WERE, LIKE INGRAM AND JENKINS, PARTIES TO A CONSPIRACY WITH A
PURPOSE ILLEGAL UNDER FEDERAL LAW.  CERTAINLY THERE IS NOTHING IN THE
RECORD TO SHOW THAT SMITH AND LAW KNEW THAT INGRAM AND JENKINS HAD NOT
PAID THE TAXES, A FACT OBVIOUSLY WITHIN THE KNOWLEDGE OF THE LATTER. 

IT IS FUNDAMENTAL THAT A CONVICTION FOR CONSPIRACY UNDER 18 U.S.C.
SEC. 371 CANNOT BE SUSTAINED UNLESS THERE IS "PROOF OF AN AGREEMENT TO
COMMIT AN OFFENSE AGAINST THE UNITED STATES."  PEREIRA V. UNITED
STATES, 347 U.S. 1, 12.  THERE NEED NOT, OF COURSE, BE PROOF THAT THE
CONSPIRATORS WERE AWARE OF THE CRIMINALITY OF THEIR OBJECTIVE, BUT AN
ESSENTIAL INGREDIENT OF THE PROOF WAS KNOWLEDGE ON THE PART OF SMITH
AND LAW THAT INGRAM AND JENKINS WERE LIABLE FOR FEDERAL TAXES BY REASON
OF THE GAMBLING OPERATION.  "WITHOUT THE KNOWLEDGE, THE INTENT CANNOT
EXIST."  DIRECT SALES CO. V. UNITED STATES, 319 U.S. 703, 711. 

"CONSPIRACY TO COMMIT A PARTICULAR SUBSTANTIVE OFFENSE CANNOT EXIST
WITHOUT AT LEAST THE DEGREE OF CRIMINAL INTENT NECESSARY FOR THE
SUBSTANTIVE OFFENSE ITSELF."  (FN9)  THE SUBSTANTIVE OFFENSE WHICH
SMITH AND LAW WERE ACCUSED OF CONSPIRING TO COMMIT WAS THE WILLFUL
EVASION OF FEDERAL TAXES, AN OFFENSE WHICH, EVEN PRESUMING KNOWLEDGE OF
THE TAX LAW, OBVIOUSLY CANNOT BE COMMITTED IN THE ABSENCE OF KNOWLEDGE
OF WILLFULNESS.  SPIES V. UNITED STATES, SUPRA.  CF.  UNITED STATES V.
FALCONE, 311 U.S. 205. 

INDULGING, AS OF COURSE WE MUST, IN THAT VIEW OF THE EVIDENCE MOST
FAVORABLE TO THE GOVERNMENT, WE SIMPLY CANNOT DISCERN ADEQUATE
FOUNDATION IN THE PRESENT RECORD FOR A FINDING THAT SMITH AND LAW HAD
SUCH KNOWLEDGE OF INGRAM'S AND JENKINS' WAGERING TAX LIABILITY.  THE
RECORD IS COMPLETELY BARREN OF ANY DIRECT EVIDENCE OF SUCH KNOWLEDGE. 
IT WAS NOT SHOWN, FOR EXAMPLE, THAT ANY REFERENCE HAD EVER BEEN MADE BY
ANY OF THE PETITIONERS TO POSSIBLE TAX LIABILITY, OR THAT THEY HAD
FILED A RETURN OR PAID A TAX IN PREVIOUS YEARS.  THE GOVERNMENT RELIED
INSTEAD UPON EVIDENCE WHICH, IT ASSERTS, CIRCUMSTANTIALLY PROVED THE
REQUISITE KNOWLEDGE ON THE PART OF SMITH AND LAW.  THESE CIRCUMSTANCES
WERE SIMPLY THE INTIMATE CONNECTION OF SMITH AND LAW WITH THE OPERATION
OF THE LOTTERY ITSELF, THEIR COOPERATION IN CONDUCTING IT SECRETLY,
(FN10) AND THEIR APPARENT KNOWLEDGE THAT IT WAS CONDUCTED AT A PROFIT. 
THE GOVERNMENT POINTS OUT THAT NOT ONLY WOULD PAYMENT OF THE TAXES HAVE
DECREASED THE PROFITS TO BE DERIVED FROM OPERATION OF THE LOTTERY, BUT
IN ADDITION WOULD HAVE REQUIRED REGISTRATION, INCLUDING THE NAMES AND
ADDRESSES OF THE BANKERS AND WRITERS, WITH THE LOCAL INTERNAL REVENUE
OFFICE AND THE POSTING OF A WAGERING TAX STAMP AT THE PLACE OF
BUSINESS.  26 U.S.C. (SUPP. V) SECS. 4412, 6806(C).  THE INFORMATION
CONTAINED IN THE REGISTRATION WOULD HAVE BEEN AVAILABLE TO LOCAL LAW
ENFORCEMENT OFFICIALS.  26 U.S.C. (SUPP. V) SEC. 6107. 

YET THESE CIRCUMSTANCES ACTUALLY ARE COLORLESS AS TO THE VITAL ISSUE
OF KNOWLEDGE ON THE PART OF SMITH AND LAW THAT THEIR SUPERIORS OWED
FEDERAL WAGERING TAXES.  CERTAINLY THE SECRECY OF THE OPERATION DID NOT
GO TO SHOW THAT KNOWLEDGE.  THIS IS NOT A CASE WHERE EFFORTS AT
CONCEALMENT WOULD BE REASONABLY EXPLAINABLE ONLY IN TERMS OF MOTIVATION
TO EVADE TAXATION.  HERE, THE CRIMINALITY OF THE ENTERPRISE UNDER LOCAL
LAW PROVIDED MORE THAN SUFFICIENT REASON FOR THE SECRECY IN WHICH IT
WAS CONDUCTED.  A CONSPIRACY, TO BE SURE, MAY HAVE MULTIPLE OBJECTIVES,
UNITED STATES V. RABINOWICH, 238 U.S. 78, 86, AND IF ONE OF ITS
OBJECTIVES, EVEN A MINOR ONE, BE THE EVASION OF FEDERAL TAXES, THE
OFFENSE IS MADE OUT, THOUGH THE PRIMARY OBJECTIVE MAY BE CONCEALMENT OF
ANOTHER CRIME.  SEE SPIES V. UNITED STATES, SUPRA, AT 499.  BUT THE
FACT THAT PAYMENT OF THE FEDERAL TAXES BY INGRAM AND JENKINS MIGHT HAVE
RESULTED IN DISCLOSURE OF THE LOTTERY AND SUBSEQUENT PROSECUTION OF
SMITH AND LAW BY LOCAL AUTHORITIES WOULD PERMIT AN INFERENCE THAT
CONCEALMENT OF THE LOTTERY WAS MOTIVATED BY A PURPOSE TO EVADE PAYMENT
OF FEDERAL TAXES ONLY IF, INDEPENDENTLY, THERE WERE PROOF THAT SMITH
AND LAW KNEW OF THE TAX LIABILITY.  EVIDENCE THAT SMITH AND LAW MIGHT
HAVE WANTED THE TAXES TO BE EVADED IF THEY HAD KNOWN OF THEM, AND THAT
THEY ENGAGED IN CONDUCT WHICH COULD HAVE BEEN IN FURTHERANCE OF PLAN TO
EVADE THE TAXES IF THEY HAD KNOWN OF THEM, IS NOT EVIDENCE THAT THEY
DID KNOW OF THEM. 

WHAT WAS SAID IN DIRECT SALES CO. V. UNITED STATES ON BEHALF OF A
UNANIMOUS COURT IS OF PARTICULAR RELEVANCE HERE: 

"WITHOUT THE KNOWLEDGE, THE INTENT CANNOT EXIST  ...  .  FURTHERMORE,
TO ESTABLISH THE INTENT, THE EVIDENCE OF KNOWLEDGE MUST BE CLEAR, NOT
EQUIVOCAL  ...  .  THIS, BECAUSE CHARGES OF CONSPIRACY ARE NOT TO BE
MADE OUT BY PILING INFERENCE UPON INFERENCE, THUS FASHIONING  ...  A
DRAGNET TO DRAW IN ALL SUBSTANTIVE CRIMES."  319 U.S., AT 711. 

SMITH AND LAW WERE NOT LIABLE FOR THE WAGERING TAX.  UNITED STATES V.
CALAMARO, SUPRA.  THEY COULD NOT, THEREFORE, HAVE BEEN CONVICTED OF THE
CRIME WHICH THEY WERE CHARGED WITH HAVING CONSPIRED TO COMMIT.  TO
SUSTAIN THEIR CONVICTION ON THIS RECORD WOULD MAKE OF THE CRIME OF
CONSPIRACY JUST THAT "DRAGNET TO DRAW IN ALL SUBSTANTIVE CRIMES"
AGAINST WHICH THE COURT WARNED IN DIRECT SALES.  CF. GEBARDI V. UNITED
STATES, 287 U.S. 112. 

ACCORDINGLY, WHILE AFFIRMING THE CONVICTIONS OF INGRAM AND JENKINS,
WE HOLD THAT THE MOTIONS FOR ACQUITTAL OF SMITH AND LAW SHOULD HAVE
BEEN SUSTAINED BY THE DISTRICT COURT, AND THAT THE COURT OF APPEALS WAS
IN ERROR IN AFFIRMING THEIR CONVICTIONS.  JUDGMENT ACCORDINGLY. 

FN1  SECTION 4401 OF THE INTERNAL REVENUE CODE OF 1954 PROVIDES: 

"(A)  WAGERS.  - THERE SHALL BE IMPOSED ON WAGERS, AS DEFINED IN

*         *         *         *         * 

"(C)  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."  68A STAT. 525. 

TAX OF $50 PER YEAR TO BE PAID BY EACH PERSON WHO IS LIABLE FOR TAX
UNDER SECTION 4401 OR WHO IS ENGAGED IN RECEIVING WAGERS FOR OR ON
BEHALF OF ANY PERSON SO LIABLE."  68A STAT. 527.    SECTION 4421 OF THE
CODE INCLUDES IN THE DEFINITION OF "WAGER" "ANY WAGER PLACED IN A
LOTTERY CONDUCTED FOR PROFIT" AND INCLUDES IN THE DEFINITION OF
"LOTTERY" "THE NUMBERS GAME, POLICY, AND SIMILAR TYPES OF WAGERING." 
68A STAT. 528. 

ATTEMPTS IN ANY MANNER TO EVADE OR DEFEAT ANY TAX IMPOSED BY THIS TITLE
OR THE PAYMENT THEREOF SHALL  ...  BE GUILTY OF A FELONY  ... ." 68A
STAT. 851.    18 U.S.C. SEC. 371 PROVIDES:  "IF TWO OR MORE PERSONS
CONSPIRE  ...  TO COMMIT ANY OFFENSE AGAINST THE UNITED STATES,  ...
AND ONE OR MORE OF SUCH PERSONS DO ANY ACT TO EFFECT THE OBJECT OF THE
CONSPIRACY, EACH SHALL BE FINED  ...  OR IMPRISONED  ...  ."  62 STAT.
701. 

THESE WERE THE LINKS IN THE STATUTORY CHAIN UNDER WHICH THE
PETITIONERS WERE INDICTED AND CONVICTED. 

FN2  SOME OF THE ITEMS FOUND WHEN THE HEADQUARTERS OF THE OPERATION
WAS RAIDED IN 1957 WERE CLEARLY INDICATIVE OF THE MAGNITUDE OF THE
ENTERPRISE.  AMONG THE ITEMS FOUND ON THAT OCCASION WERE SOME 2,400
SCRATCH PADS OF THE TYPE USED IN NUMBERS OPERATIONS, THOUSANDS OF COIN
WRAPPERS, A POLICE ALARM RADIO, WITH A SECRET CODE OF POLICE CALLS, TWO
HIGH-FREQUENCY RADIOS, AND SIX FICTITIOUS AUTOMOBILE REGISTRATIONS WITH
LICENSE TAGS.  PETITIONER INGRAM WAS ALLEGED TO HAVE STATED IN 1955
THAT THE "BUSINESS IS DOWN TO ABOUT" $3,500 PER DAY. 

FN3  GEORGIA CODE (1953 REVISION), SEC. 26-6502. 

FN4  THERE WAS EXTENSIVE EVIDENCE, FOR EXAMPLE, THAT PARTICIPANTS IN
THE ENTERPRISE USED FALSE LICENSE PLATES ON THEIR AUTOMOBILES, TOOK
EVASIVE ROUTES TO THE "CHECK-UP HEADQUARTERS" OF THE OPERATION, USED
FALSE NAMES ON OCCASION, AND ATTEMPTED TO BRIBE LOCAL LAW ENFORCEMENT
OFFICERS. 

FN5  SEE NOTE 1, SUPRA. 

FN6  THIS SECTION OF THE CODE PROVIDES:  "ANY PERSON REQUIRED UNDER
THIS TITLE TO PAY ANY  ... TAX,  ...  WHO WILLFULLY FAILS TO PAY SUCH
...  TAX,  ...  SHALL  ...  BE GUILTY OF A MISDEMEANOR ...  ."  68A
STAT. 851. 

FN7  THIS SECTION OF THE CODE PROVIDES: "EACH PERSON REQUIRED TO PAY
A SPECIAL TAX UNDER THIS SUBCHAPTER SHALL REGISTER WITH THE OFFICIAL IN
CHARGE OF THE INTERNAL REVENUE DISTRICT -  ...  ."  68A STAT. 527. 

FN8  THIS SECTION OF THE CODE PROVIDES:  "ANY PERSON WHO FAILS TO
REGISTER WITH THE SECRETARY OR HIS DELEGATE AS REQUIRED BY THIS TITLE
...  SHALL BE LIABLE TO A PENALTY OF $50."  68A STAT.  866. 

FN9 SEE "DEVELOPMENTS IN THE LAW - CRIMINAL CONSPIRACY," 72 HARV. L.
REV. 920, AT 939, AND AUTHORITIES THERE CITED. 

FN10  THE COURT'S DECISIONS IN GRUNEWALD V. UNITED STATES, 353 U.S.
391; LUTWAK V. UNITED STATES, 344 U.S. 604; AND KRULEWITCH V. UNITED
STATES, 336 U.S. 440, DO NOT, AS PETITIONERS APPEAR TO CONTEND, PREVENT
THE JURY FROM TREATING THIS SUBSIDIARY OBJECTIVE AS AN ELEMENT OF THE
CONSPIRACY.  THOSE CASES HOLD ONLY THAT THE LIFE OF THE CONSPIRACY
CANNOT BE EXTENDED BY EVIDENCE OF CONCEALMENT AFTER THE CONSPIRACY'S
CRIMINAL OBJECTIVES HAVE BEEN FULLY ACCOMPLISHED.  "  ...  A VITAL
DISTINCTION MUST BE MADE BETWEEN ACTS OF CONCEALMENT DONE IN
FURTHERANCE OF THE MAIN CRIMINAL OBJECTIVES OF THE CONSPIRACY, AND ACTS
OF CONCEALMENT DONE AFTER THESE CENTRAL OBJECTIVES HAVE BEEN ATTAINED,
FOR THE PURPOSE ONLY OF COVERING UP AFTER THE CRIME."  GRUNEWALD V.
UNITED STATES, SUPRA, AT 405. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN
JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

THE CONSTITUTIONAL VALIDITY OF THE OCCUPATIONAL TAX PROVISIONS ON
PERSONS ENGAGED IN THE BUSINESS OF ACCEPTING WAGERS HAS BEEN
ESTABLISHED BY UNITED STATES V. KAHRIGER, 345 U.S. 22.  IN CONSTRUING
THOSE PROVISIONS, HOWEVER, WE HAVE HELD THAT NO WEIGHT CAN BE GIVEN TO
THE SUGGESTION THAT THEY MUST BE INTERPRETED ON THE PREMISE THAT THEIR
ENACTMENT WAS "'IN PART MOTIVATED BY A CONGRESSIONAL DESIRE TO SUPPRESS
WAGERING.'"  UNITED STATES V. CALAMARO, 354 U.S. 351.  IN THAT CASE WE
HELD THAT ONLY "WRITERS," "BANKERS," OR THOSE WHO HAVE "A PROPRIETARY
INTEREST" IN A LOTTERY OPERATION ARE SUBJECT TO THE TAXING STATUTES,
AND THAT THEREFORE ONLY THOSE PERSONS CAN BE HELD FOR VIOLATION OF
THEIR SUBSTANTIVE PROVISIONS. 

IN THIS CASE THE GOVERNMENT HAS IN EFFECT SOUGHT TO BY-PASS CALAMARO
BY THE SIMPLE EXPEDIENT OF INDICTING PERSONS CONNECTED WITH A LOTTERY
OPERATION NOT FOR THE SUBSTANTIVE OFFENSES PROSCRIBED BY THE INTERNAL
REVENUE CODE, BUT INSTEAD FOR CONSPIRING WITH THOSE MEMBERS OF THE
LOTTERY OPERATION WHO ARE PERSONALLY SUBJECT TO THE RELEVANT EXCISE
TAXES TO EVADE PAYMENT OF THOSE TAXES.  TWO ESSENTIAL ELEMENTS OF THE
CRIME, FIRST, KNOWLEDGE THAT THE TAXES ARE DUE, AND, SECOND, A "WILLFUL
AND POSITIVE ATTEMPT TO EVADE TAX IN ANY MANNER OR TO DEFEAT IT BY ANY
MEANS," SPIES V. UNITED STATES, 317 U.S. 492, 499, ARE SOUGHT TO BE
ESTABLISHED HERE BY THE NAKED FACT THAT THE LOTTERY OPERATION WAS
CAREFULLY CONCEALED BY ALL WHO PARTICIPATED IN IT.  SINCE LOTTERIES ARE
UNLAWFUL IN VIRTUALLY EVERY STATE, MORE PARTICULARLY IN GEORGIA WHERE
THIS ENTERPRISE WAS CARRIED ON, AND THEREFORE REQUIRE CONCEALMENT IF
THEY ARE TO CONTINUE TO OPERATE, TO PERMIT A CONVICTION ON SUCH
EVIDENCE ALONE WOULD RELEGATE CALAMARO TO THE STATUS OF AN UNMEANINGFUL
RELIC.  THE OPINION OF THE COURT CONVINCINGLY DEMONSTRATES WHY THE
EVIDENCE IN THE CASE DOES NOT SUPPORT A FINDING BY THE JURY THAT
PETITIONERS SMITH AND LAW KNEW THAT A TAX WAS OWING BY PETITIONERS
INGRAM AND JENKINS, AND THAT THEY UNDERTOOK ACTS OF CONCEALMENT FOR THE
PURPOSE, IN WHOLE OR IN PART, OF AIDING AN EVASION OF THAT TAX. 

BUT I THINK THAT THE VERY CONSIDERATIONS WHICH LEAD THE COURT TO
REVERSE THE CONVICTION OF SMITH AND LAW EQUALLY REQUIRE A REVERSAL AS
TO INGRAM AND JENKINS.  AN INDISPENSABLE ELEMENT OF THE CRIME OF TAX
EVASION IS KNOWLEDGE THAT A TAX IS IMPOSED.  THIS KNOWLEDGE MAY BE
PROVED DIRECTLY OR CIRCUMSTANTIALLY.  HERE THERE IS NO DIRECT PROOF,
AND THE SOLE CIRCUMSTANTIAL EVIDENCE RELIED ON BY THE GOVERNMENT IS THE
FACT OF CONCEALMENT OF THE LOTTERY OPERATION.  BUT IF, AS THE COURT
HOLDS, "CERTAINLY THE SECRECY OF THE OPERATION DID NOT GO TO SHOW  ...
KNOWLEDGE" BY SMITH AND LAW THAT THEIR SUPERIORS WERE LIABLE FOR A
FEDERAL TAX, I AM AT A LOSS TO UNDERSTAND HOW THIS FACTOR CAN AT THE
SAME TIME SUFFICE TO SHOW KNOWLEDGE ON THE PART OF PETITIONERS INGRAM
AND JENKINS THAT THEY THEMSELVES WERE LIABLE FOR A FEDERAL TAX.  THE
LATTER NO LESS THAN THE FORMER MUST BE SHOWN TO HAVE ACTUAL KNOWLEDGE
THAT A TAX IS OWING BEFORE THEY CAN BE CONVICTED OF A CONSPIRACY TO
EVADE THAT TAX, AND THE COURT'S REASONING PLAINLY DEMONSTRATES TO ME
THAT THE GOVERNMENT HAS MADE NO SUCH SHOWING IN THIS CASE. 

I THINK THAT SIGHT HAS BEEN LOST OF THE FACT THAT THIS IS A
PROSECUTION FOR CONSPIRACY TO VIOLATE A FEDERAL TAXING STATUTE, NOT FOR
VIOLATION OF LOCAL GAMBLING LAWS.  AN OVERWHELMING SHOWING HAS BEEN
MADE THAT PETITIONERS WERE PARTICIPANTS IN A LARGE LOTTERY ENTERPRISE,
BUT THAT DOES NOT SUFFICE TO SUPPORT CONVICTION OF THE CRIME WITH WHICH
THEY ARE HERE CHARGED. 
..END :






















KINGSLEY INTERNATIONAL PICTURES CORP. V. REGENTS OF THE UNIVERSITY OF
THE STATE OF NEW YORK 360 U.S. 684 


NO. 394.  ARGUED APRIL 23, 1959.  - DECIDED JUNE 29, 1959.  - 4 N.Y.2D
349, 115 N.E.2D 197, 175 N.Y.S.2D 39, REVERSED. 


UNDER PROVISIONS OF THE NEW YORK EDUCATION LAW WHICH WERE CONSTRUED BY
THE COURT OF APPEALS OF NEW YORK AS REQUIRING THE DENIAL OF A LICENSE
TO SHOW A MOTION PICTURE WHEN "ITS SUBJECT MATTER IS ADULTERY PRESENTED
AS BEING RIGHT AND DESIRABLE FOR CERTAIN PEOPLE UNDER CERTAIN
CIRCUMSTANCES," THAT COURT SUSTAINED DENIAL OF A LICENSE TO SHOW A
MOTION PICTURE WHICH IT FOUND "ALLURINGLY PORTRAYS ADULTERY AS PROPER
BEHAVIOR."  HELD:  AS THUS CONSTRUED AND APPLIED, THE NEW YORK STATUTE
VIOLATES THE FREEDOM TO ADVOCATE IDEAS WHICH IS GUARANTEED BY THE FIRST
AMENDMENT AND PROTECTED BY THE FOURTEENTH AMENDMENT FROM INFRINGEMENT
BY THE STATES.  PP. 684-690. 

KINGSLEY INTERNATIONAL PICTURES CORP. V. REGENTS OF THE UNIVERSITY OF
THE STATE OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN THE COURT IS REQUIRED TO CONSIDER THE IMPACT OF NEW YORK'S
MOTION PICTURE LICENSING LAW UPON FIRST AMENDMENT LIBERTIES, PROTECTED
BY THE FOURTEENTH AMENDMENT FROM INFRINGEMENT BY THE STATES.  CF.
JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495. 

THE NEW YORK STATUTE MAKES IT UNLAWFUL "TO EXHIBIT OR TO SELL, LEASE
OR LEND FOR EXHIBITION AT ANY PLACE OF AMUSEMENT FOR PAY OR IN
CONNECTION WITH ANY BUSINESS IN THE STATE OF NEW YORK, ANY MOTION
PICTURE FILM OR REEL (WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE),
UNLESS THERE IS AT THE TIME IN FULL FORCE AND EFFECT A VALID LICENSE OR
PERMIT THEREFOR OF THE EDUCATION DEPARTMENT  ...  ."  (FN1)  THE LAW
PROVIDES THAT A LICENSE SHALL ISSUE "UNLESS SUCH FILM OR A PART THEREOF
IS OBSCENE, INDECENT, IMMORAL, INHUMAN, SACRILEGIOUS, OR IS OF SUCH A
CHARACTER THAT ITS EXHIBITION WOULD TEND TO CORRUPT MORALS OR INCITE TO
CRIME  ...  ."  (FN2)  A RECENT STATUTORY AMENDMENT PROVIDES THAT, "THE
TERM 'IMMORAL' AND THE PHRASE 'OF SUCH A CHARACTER THAT ITS EXHIBITION
WOULD TEND TO CORRUPT MORALS' SHALL DENOTE A MOTION PICTURE FILM OR
PART THEREOF, THE DOMINANT PURPOSE OR EFFECT OF WHICH IS EROTIC OR
PORNOGRAPHIC; OR WHICH PORTRAYS ACTS OF SEXUAL IMMORALITY, PERVERSION,
OR LEWDNESS, OR WHICH EXPRESSLY OR IMPLIEDLY PRESENTS SUCH ACTS AS
DESIRABLE, ACCEPTABLE OR PROPER PATTERNS OF BEHAVIOR."  (FN3) 

AS THE DISTRIBUTOR OF A MOTION PICTURE ENTITLED "LADY CHATTERLEY'S
LOVER," THE APPELLANT KINGSLEY SUBMITTED THAT FILM TO THE MOTION
PICTURE DIVISION OF THE NEW YORK EDUCATION DEPARTMENT FOR A LICENSE. 
FINDING THREE ISOLATED SCENES IN THE FILM "'IMMORAL' WITHIN THE INTENT
OF OUR LAW," THE DIVISION REFUSED TO ISSUE A LICENSE UNTIL THE SCENES
IN QUESTION WERE DELETED.  THE DISTRIBUTOR PETITIONED THE REGENTS OF
THE UNIVERSITY OF THE STATE OF NEW YORK FOR A REVIEW OF THAT RULING. 
(FN4)  THE REGENTS UPHELD THE DENIAL OF A LICENSE, BUT ON THE BROADER
GROUND THAT "THE WHOLE THEME OF THIS MOTION PICTURE IS IMMORAL UNDER
SAID LAW, FOR THAT THEME IS THE PRESENTATION OF ADULTERY AS A
DESIRABLE, ACCEPTABLE AND PROPER PATTERN OF BEHAVIOR." 

KINGSLEY SOUGHT JUDICIAL REVIEW OF THE REGENTS' DETERMINATION.  (FN5)
THE APPELLATE DIVISION UNANIMOUSLY ANNULLED THE ACTION OF THE REGENTS
AND DIRECTED THAT A LICENSE BE ISSUED.  4 APP.  DIV. 2D 348, 165
N.Y.S.2D 681.  A SHARPLY DIVIDED COURT OF APPEALS, HOWEVER, REVERSED
THE APPELLATE DIVISION AND UPHELD THE REGENTS' REFUSAL TO LICENSE THE
FILM FOR EXHIBITION.  4 N.Y.2D 349, 151 N.E.2D 197, 175 N.Y.S.2D 39. 
(FN6) 

THE COURT OF APPEALS UNANIMOUSLY AND EXPLICITLY REJECTED ANY NOTION
THAT THE FILM IS OBSCENE.  (FN7)  SEE ROTH V. UNITED STATES, 354 U.S.
476.  RATHER, THE COURT FOUND THAT THE PICTURE AS A WHOLE "ALLURINGLY
PORTRAYS ADULTERY AS PROPER BEHAVIOR."  AS CHIEF JUDGE CONWAY'S
PREVAILING OPINION EMPHASIZED, THEREFORE, THE ONLY PORTION OF THE
STATUTE INVOLVED IN THIS CASE IS THAT PART OF SECS. 122 AND 122-A OF
THE EDUCATION LAW REQUIRING THE DENIAL OF A LICENSE TO MOTION PICTURES
"WHICH ARE IMMORAL IN THAT THEY PORTRAY 'ACTS OF SEXUAL IMMORALITY  ...
AS DESIRABLE, ACCEPTABLE OR PROPER PATTERNS OF BEHAVIOR.'"  (FN8)  4
N.Y.2D, AT 351, 151 N.E.2D, AT 197, 175 N.Y.S.2D, AT 40.  A MAJORITY OF
THE COURT OF APPEALS ASCRIBED TO THAT LANGUAGE A PRECISE PURPOSE OF THE
NEW YORK LEGISLATURE TO REQUIRE THE DENIAL OF A LICENSE TO A MOTION
PICTURE "BECAUSE ITS SUBJECT MATTER IS ADULTERY PRESENTED AS BEING
RIGHT AND DESIRABLE FOR CERTAIN PEOPLE UNDER CERTAIN CIRCUMSTANCES." 
(FN9)  4 N.Y.2D, AT 369, 151 N.E.2D, AT 208, 175 N.Y.S.2D, AT 55
(CONCURRING OPINION). 

WE ACCEPT THE PREMISE THAT THE MOTION PICTURE HERE IN QUESTION CAN BE
SO CHARACTERIZED.  WE ACCEPT TOO, AS WE MUST, THE CONSTRUCTION OF THE
NEW YORK LEGISLATURE'S LANGUAGE WHICH THE COURT OF APPEALS HAS PUT UPON
IT.  ALBERTSON V. MILLARD, 345 U.S. 242; UNITED STATES V. BURNISON, 339
U.S. 87; AERO MAYFLOWER TRANSIT CO. V. BOARD OF R.R. COMM'RS, 332 U.S.
495.  THAT CONSTRUCTION, WE EMPHASIZE, GIVES TO THE TERM "SEXUAL
IMMORALITY" A CONCEPT ENTIRELY DIFFERENT FROM THE CONCEPT EMBRACED IN
WORDS LIKE "OBSCENITY" OR "PORNOGRAPHY."  (FN10)  MOREOVER, IT IS NOT
SUGGESTED THAT THE FILM WOULD ITSELF OPERATE AS AN INCITEMENT TO
ILLEGAL ACTION.  RATHER, THE NEW YORK COURT OF APPEALS TELLS US THAT
THE RELEVANT PORTION OF THE NEW YORK EDUCATION LAW REQUIRES THE DENIAL
OF A LICENSE TO ANY MOTION PICTURE WHICH APPROVINGLY PORTRAYS AN
ADULTEROUS RELATIONSHIP, QUITE WITHOUT REFERENCE TO THE MANNER OF ITS
PORTRAYAL. 

WHAT NEW YORK HAS DONE, THEREFORE, IS TO PREVENT THE EXHIBITION OF A
MOTION PICTURE BECAUSE THAT PICTURE ADVOCATES AN IDEA - THAT ADULTERY
UNDER CERTAIN CIRCUMSTANCES MAY BE PROPER BEHAVIOR.  YET THE FIRST
AMENDMENT'S BASIC GUARANTEE IS OF FREEDOM TO ADVOCATE IDEAS.  THE
STATE, QUITE SIMPLY, HAS THUS STRUCK AT THE VERY HEART OF
CONSTITUTIONALLY PROTECTED LIBERTY. 

IT IS CONTENDED THAT THE STATE'S ACTION WAS JUSTIFIED BECAUSE THE
MOTION PICTURE ATTRACTIVELY PORTRAYS A RELATIONSHIP WHICH IS CONTRARY
TO THE MORAL STANDARDS, THE RELIGIOUS PRECEPTS, AND THE LEGAL CODE OF
ITS CITIZENRY.  THIS ARGUMENT MISCONCEIVES WHAT IT IS THAT THE
CONSTITUTION PROTECTS.  ITS GUARANTEE IS NOT CONFINED TO THE EXPRESSION
OF IDEAS THAT ARE CONVENTIONAL OR SHARED BY A MAJORITY.  IT PROTECTS
ADVOCACY OF THE OPINION THAT ADULTERY MAY SOMETIMES BE PROPER, NO LESS
THAN ADVOCACY OF SOCIALISM OR THE SINGLE TAX.  AND IN THE REALM OF
IDEAS IT PROTECTS EXPRESSION WHICH IS ELOQUENT NO LESS THAN THAT WHICH
IS UNCONVINCING. 

ADVOCACY OF CONDUCT PROSCRIBED BY LAW IS NOT, AS MR. JUSTICE BRANDEIS
LONG AGO POINTED OUT, "A JUSTIFICATION FOR DENYING FREE SPEECH WHERE
THE ADVOCACY FALLS SHORT OF INCITEMENT AND THERE IS NOTHING TO INDICATE
THAT THE ADVOCACY WOULD BE IMMEDIATELY ACTED ON."  WHITNEY V.
CALIFORNIA, 274 U.S. 357, AT 376 (CONCURRING OPINION).  "AMONG FREE
MEN, THE DETERRENTS ORDINARILY TO BE APPLIED TO PREVENT CRIME ARE
EDUCATION AND PUNISHMENT FOR VIOLATIONS OF THE LAW, NOT ABRIDGMENT OF
THE RIGHTS OF FREE SPEECH  ...  ."  ID., AT 378.  (FN11) 

THE INFLEXIBLE COMMAND WHICH THE NEW YORK COURT OF APPEALS HAS
ATTRIBUTED TO THE STATE LEGISLATURE THUS CUTS SO CLOSE TO THE CORE OF
CONSTITUTIONAL FREEDOM AS TO MAKE IT QUITE NEEDLESS IN THIS CASE TO
EXAMINE THE PERIPHERY.  SPECIFICALLY, THERE IS NO OCCASION TO CONSIDER
THE APPELLANT'S CONTENTION THAT THE STATE IS ENTIRELY WITHOUT POWER TO
REQUIRE FILMS OF ANY KIND TO BE LICENSED PRIOR TO THEIR EXHIBITION. 
NOR NEED WE HERE DETERMINE WHETHER, DESPITE PROBLEMS PECULIAR TO MOTION
PICTURES, THE CONTROLS WHICH A STATE MAY IMPOSE UPON THIS MEDIUM OF
EXPRESSION ARE PRECISELY COEXTENSIVE WITH THOSE ALLOWABLE FOR
NEWSPAPERS, (FN12) BOOKS, (FN13) OR INDIVIDUAL SPEECH.  (FN14)  IT IS
ENOUGH FOR THE PRESENT CASE TO REAFFIRM THAT MOTION PICTURES ARE WITHIN
THE FIRST AND FOURTEENTH AMENDMENTS' BASIC PROTECTION.  JOSEPH BURSTYN,
INC. V. WILSON, 343 U.S. 495.  REVERSED. 

FN1  MCKINNEY'S N.Y. LAWS, 1953, EDUCATION LAW, SEC. 129. 

FN2  MCKINNEY'S N.Y. LAWS, 1953, EDUCATION LAW, SEC. 122. 

FN3  MCKINNEY'S N.Y. LAWS, 1953 (CUM. SUPP. 1958), EDUCATION LAW,
SEC. 122-A. 

FN4  "AN APPLICANT FOR A LICENSE OR PERMIT, IN CASE HIS APPLICATION
BE DENIED BY THE DIRECTOR OF THE DIVISION OR BY THE OFFICER AUTHORIZED
TO ISSUE THE SAME, SHALL HAVE THE RIGHT OF REVIEW BY THE REGENTS." 
MCKINNEY'S N.Y. LAWS, 1953, EDUCATION LAW, SEC. 124. 

FN5  THE PROCEEDING WAS BROUGHT UNDER ART. 78 OF THE NEW YORK CIVIL
PRACTICE ACT, GILBERT-BLISS' N.Y. CIV. PRAC., VOL. 6B, 1944, 1949
SUPP., SEC. 1283 ET SEQ. SEE ALSO, MCKINNEY'S N.Y.  LAWS, 1953,
EDUCATION LAW, SEC. 124. 

FN6  ALTHOUGH FOUR OF THE SEVEN JUDGES OF THE COURT OF APPEALS VOTED
TO REVERSE THE ORDER OF THE APPELLATE DIVISION, ONLY THREE OF THEM WERE
OF THE CLEAR OPINION THAT DENIAL OF A LICENSE WAS PERMISSIBLE UNDER THE
CONSTITUTION.  CHIEF JUDGE CONWAY WROTE AN OPINION IN WHICH JUDGES
FROESSEL AND BURKE CONCURRED, CONCLUDING THAT DENIAL OF THE LICENSE WAS
CONSTITUTIONALLY PERMISSIBLE.  JUDGE DESMOND WROTE A SEPARATE
CONCURRING OPINION IN WHICH HE STATED:  "I CONFESS DOUBT AS TO THE
VALIDITY OF SUCH A STATUTE BUT I DO NOT KNOW HOW THAT DOUBT CAN BE
RESOLVED UNLESS WE REVERSE HERE AND LET THE SUPREME COURT HAVE THE
FINAL SAY."  4 N.Y.2D, AT 369, 151 N.E.2D, AT 208, 175 N.Y.S.2D, AT
55.  JUDGE DYE, JUDGE FULD, AND JUDGE VAN VOORHIS WROTE SEPARATE
DISSENTING OPINIONS. 

FN7  THE OPINION WRITTEN BY CHIEF JUDGE CONWAY STATED:  "IT IS
CURIOUS INDEED TO SAY IN ONE BREATH, AS SOME DO, THAT OBSCENE MOTION
PICTURES MAY BE CENSORED, AND THEN IN ANOTHER BREATH THAT MOTION
PICTURES WHICH ALLURINGLY PORTRAY ADULTERY AS PROPER AND DESIRABLE MAY
NOT BE CENSORED.  AS STATED ABOVE, 'THE LAW IS CONCERNED WITH EFFECT,
NOT MERELY WITH BUT ONE MEANS OF PRODUCING IT.'  IT MUST BE FIRMLY
BORNE IN MIND THAT TO GIVE OBSCENITY, AS DEFINED, THE STATURE OF THE
ONLY CONSTITUTIONAL LIMITATION IS TO EXTEND AN INVITATION TO CORRUPT
THE PUBLIC MORALS BY METHODS OF PRESENTATION WHICH CRAFT WILL INSURE DO
NOT FALL SQUARELY WITHIN THE DEFINITION OF THAT TERM.  PRECEDENT, JUST
AS SOUND PRINCIPLE, WILL NOT SUPPORT A STATEMENT THAT MOTION PICTURES
MUST BE 'OUT AND OUT' OBSCENE BEFORE THEY MAY BE CENSORED."  4 N.Y.2D,
AT 364, 151 N.E.2D, AT 205, 175 N.Y.S.2D, AT 51. 

JUDGE DESMOND'S CONCURRING OPINION STATED:  "IT IS NOT NECESSARILY
DETERMINATIVE THAT THIS FILM IS NOT OBSCENE IN THE DICTIONARY SENSE
...  ."  4 N.Y.2D, AT 369, 151 N.E.2D, AT 208, 175 N.Y.S.2D, AT 55. 
JUDGE DYE'S DISSENTING OPINION STATED:  "NO ONE CONTENDS THAT THE FILM
IN QUESTION IS OBSCENE WITHIN THE NARROW LEGAL LIMITS OF OBSCENITY AS
RECENTLY DEFINED BY THE SUPREME COURT  ...  ."  4 N.Y.2D, AT 371, 151
N.E.2D, AT 210, 175 N.Y.S.2D, AT 57.  JUDGE VAN VOORHIS' DISSENTING
OPINION STATED:  "IT IS IMPOSSIBLE TO WRITE OFF THIS ENTIRE DRAMA AS
'MERE PORNOGRAPHY'  ...  ."  JUDGE VAN VOORHIS, HOWEVER, WOULD HAVE
REMITTED THE CASE TO THE BOARD OF REGENTS TO CONSIDER WHETHER CERTAIN
"PASSAGES" IN THE FILM "MIGHT HAVE BEEN ELIMINATED AS 'OBSCENE' WITHOUT
DOING VIOLENCE TO CONSTITUTIONAL LIBERTIES."  4 N.Y.2D, AT 375, 151
N.E.2D, AT 212, 175 N.Y.S.2D, AT 60. 

FN8  THIS IS ALSO EMPHASIZED IN THE BRIEF OF COUNSEL FOR THE REGENTS,
WHICH STATES, "THE FULL DEFINITION IS NOT BEFORE THIS COURT - ONLY
THESE PARTS OF THE DEFINITION AS CITED - AND ANY DEBATE AS TO WHETHER
OTHER PARTS OF THE DEFINITION ARE A PROPER STANDARD HAS NO BEARING IN
THIS CASE." 

FN9  IN CONCURRING, JUDGE DESMOND AGREED THAT THIS WAS THE MEANING OF
THE STATUTORY LANGUAGE IN QUESTION, AND THAT "THE THEME AND CONTENT OF
THIS FILM FAIRLY DESERVE THAT CHARACTERIZATION  ...  ."   4 N.Y.2D, AT
366, 151 N.E.2D, AT 206, 175 N.Y.S.2D, AT 52. 

FN10  SEE BY WAY OF CONTRAST, SWEARINGEN V. UNITED STATES, 161 U.S.
446; UNITED STATES V. LIMEHOUSE, 285 U.S. 424. 

FN11  THOMAS JEFFERSON WROTE MORE THAN A HUNDRED AND FIFTY YEARS AGO,
"BUT WE HAVE NOTHING TO FEAR FROM THE DEMORALIZING REASONINGS OF SOME,
IF OTHERS ARE LEFT FREE TO DEMONSTRATE THEIR ERRORS.  AND ESPECIALLY
WHEN THE LAW STANDS READY TO PUNISH THE FIRST CRIMINAL ACT PRODUCED BY
THE FALSE REASONING.  THESE ARE SAFER CORRECTIVES THAN THE CONSCIENCE
OF A JUDGE."  LETTER OF THOMAS JEFFERSON TO ELIJAH BOARDMAN, JULY 3,
1801, JEFFERSON PAPERS, LIBRARY OF CONGRESS, VOL. 115, FOLIO 19761. 

FN12  CF. NEAR V. MINNESOTA, 283 U.S. 697. 

FN13  CF. KINGSLEY BOOKS, INC. V. BROWN, 354 U.S. 436; ALBERTS V.
CALIFORNIA, 354 U.S. 476. 

FN14  CF. THOMAS V. COLLINS, 323 U.S. 516; THORNHILL V. ALABAMA, 310
U.S. 88. 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN THE COURT'S OPINION AND JUDGMENT BUT ADD A FEW WORDS
BECAUSE OF CONCURRING OPINIONS BY SEVERAL JUSTICES WHO RELY ON THEIR
APPRAISAL OF THE MOVIE LADY CHATTERLEY'S LOVER FOR HOLDING THAT NEW
YORK CANNOT CONSTITUTIONALLY BAR IT.  UNLIKE THEM, I HAVE NOT SEEN THE
PICTURE.  MY VIEW IS THAT STATED BY MR. JUSTICE DOUGLAS, THAT PRIOR
CENSORSHIP OF MOVING PICTURES LIKE PRIOR CENSORSHIP OF NEWSPAPERS AND
BOOKS VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS.  IF DESPITE THE
CONSTITUTION, HOWEVER, THIS NATION IS TO EMBARK ON THE DANGEROUS ROAD
OF CENSORSHIP, MY BELIEF IS THAT THIS COURT IS ABOUT THE MOST
INAPPROPRIATE SUPREME BOARD OF CENSORS THAT COULD BE FOUND.  SO FAR AS
I KNOW, JUDGES POSSESS NO SPECIAL EXPERTISE PROVIDING EXCEPTIONAL
COMPETENCY TO SET STANDARDS AND TO SUPERVISE THE PRIVATE MORALS OF THE
NATION.  IN ADDITION, THE JUSTICES OF THIS COURT SEEM ESPECIALLY
UNSUITED TO MAKE THE KIND OF VALUE JUDGMENTS - AS TO WHAT MOVIES ARE
GOOD OR BAD FOR LOCAL COMMUNITIES - WHICH THE CONCURRING OPINIONS
APPEAR TO REQUIRE.  WE ARE TOLD THAT THE ONLY WAY WE CAN DECIDE WHETHER
A STATE OR MUNICIPALITY CAN CONSTITUTIONALLY BAR MOVIES IS FOR THIS
COURT TO VIEW AND APPRAISE EACH MOVIE ON A CASE-BY-CASE BASIS.  UNDER
THESE CIRCUMSTANCES, EVERY MEMBER OF THE COURT MUST EXERCISE HIS OWN
JUDGMENT AS TO HOW BAD A PICTURE IS, A JUDGMENT WHICH IS ULTIMATELY
BASED AT LEAST IN LARGE PART ON HIS OWN STANDARD OF WHAT IS IMMORAL. 
THE END RESULT OF SUCH DECISIONS SEEMS TO ME TO BE A PURELY PERSONAL
DETERMINATION BY INDIVIDUAL JUSTICES AS TO WHETHER A PARTICULAR PICTURE
VIEWED IS TOO BAD TO ALLOW IT TO BE SEEN BY THE PUBLIC.  SUCH AN
INDIVIDUALIZED DETERMINATION CANNOT BE GUIDED BY REASONABLY FIXED AND
CERTAIN STANDARDS.  ACCORDINGLY, NEITHER STATES NOR MOVING PICTURE
MAKERS CAN POSSIBLY KNOW IN ADVANCE, WITH ANY FAIR DEGREE OF CERTAINTY,
WHAT CAN OR CANNOT BE DONE IN THE FIELD OF MOVIE MAKING AND
EXHIBITING.  THIS UNCERTAINTY CANNOT EASILY BE RECONCILED WITH THE RULE
OF LAW WHICH OUR CONSTITUTION ENVISAGES.    THE DIFFERENT STANDARDS
WHICH DIFFERENT PEOPLE MAY USE TO DECIDE ABOUT THE BADNESS OF PICTURES
ARE WELL ILLUSTRATED BY THE CONTRASTING STANDARDS MENTIONED IN THE
OPINION OF THE NEW YORK COURT OF APPEALS AND THE CONCURRING OPINION OF
MR. JUSTICE FRANKFURTER HERE.  AS I READ THE NEW YORK COURT'S OPINION
THIS MOVIE WAS HELD IMMORAL AND BANNED BECAUSE IT MAKES ADULTERY TOO
ALLURING.  MR. JUSTICE FRANKFURTER QUOTES MR. LAWRENCE, AUTHOR OF THE
BOOK FROM WHICH THE MOVIE WAS MADE, AS BELIEVING CENSORSHIP SHOULD BE
APPLIED ONLY TO PUBLICATIONS THAT MAKE SEX LOOK UGLY, THAT IS, AS I
UNDERSTAND IT, LESS ALLURING. 

IN MY JUDGMENT, THIS COURT SHOULD NOT PERMIT ITSELF TO GET INTO THE
VERY CENTER OF SUCH POLICY CONTROVERSIES, WHICH HAVE SO LITTLE IN
COMMON WITH LAWSUITS. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT. 

AS ONE WHOSE TASTE IN ART AND LITERATURE HARDLY QUALIFIES HIM FOR THE
AVANT-GARDE, I AM MORE THAN SURPRISED, AFTER VIEWING THE PICTURE, THAT
THE NEW YORK AUTHORITIES SHOULD HAVE BANNED "LADY CHATTERLEY'S LOVER." 
TO ASSUME THAT THIS MOTION PICTURE WOULD HAVE OFFENDED VICTORIAN MORAL
SENSIBILITIES IS TO RELY ONLY ON THE STUFFIEST OF VICTORIAN
CONVENTIONS.  WHATEVER ONE'S PERSONAL PREFERENCES MAY BE ABOUT SUCH
MATTERS, THE REFUSAL TO LICENSE THE EXHIBITION OF THIS PICTURE, ON THE
BASIS OF THE 1954 AMENDMENT TO THE NEW YORK STATE EDUCATION LAW, CAN
ONLY MEAN THAT THAT ENACTMENT FORBIDS THE PUBLIC SHOWING OF ANY FILM
THAT DEALS WITH ADULTERY EXCEPT BY WAY OF SERMONIZING CONDEMNATION OR
DEPICTS ANY PHYSICAL MANIFESTATION OF AN ILLICIT AMOROUS RELATION. 
SINCE THE DENIAL OF A LICENSE BY THE BOARD OF REGENTS WAS CONFIRMED BY
THE HIGHEST COURT OF THE STATE, I HAVE NO CHOICE BUT TO AGREE WITH THIS
COURT'S JUDGMENT IN HOLDING THAT THE STATE EXCEEDED THE BOUNDS OF FREE
EXPRESSION PROTECTED BY THE "LIBERTY" OF THE FOURTEENTH AMENDMENT.  BUT
I ALSO BELIEVE THAT THE COURT'S OPINION TAKES GROUND THAT EXCEEDS THE
APPROPRIATE LIMITS FOR DECISION.  BY WAY OF REINFORCING MY BROTHER
HARLAN'S OBJECTIONS TO THE SCOPE OF THE COURT'S OPINION, I ADD THE
FOLLOWING. 

EVEN THE AUTHOR OF "LADY CHATTERLEY'S LOVER" DID NOT ALTOGETHER RULE
OUT CENSORSHIP, NOR WAS HIS PASSIONATE ZEAL ON BEHALF OF SOCIETY'S
PROFOUND INTEREST IN THE ENDEAVORS OF TRUE ARTISTS SO DOCTRINAIRE AS TO
BE UNMINDFUL OF THE FACTS OF LIFE REGARDING THE SORDID EXPLOITATION OF
MAN'S NATURE AND IMPULSES.  HE KNEW THERE WAS SUCH A THING AS
PORNOGRAPHY, DIRT FOR DIRT'S SAKE, OR, TO BE MORE ACCURATE, DIRT FOR
MONEY'S SAKE.  THIS IS WHAT D.H. LAWRENCE WROTE: 

"BUT EVEN I WOULD CENSOR GENUINE PORNOGRAPHY, RIGOROUSLY.  IT WOULD
NOT BE VERY DIFFICULT.  IN THE FIRST PLACE, GENUINE PORNOGRAPHY IS
ALMOST ALWAYS UNDERWORLD, IT DOESN'T COME INTO THE OPEN.  IN THE
SECOND, YOU CAN RECOGNIZE IT BY THE INSULT IT OFFERS INVARIABLY, TO
SEX, AND TO THE HUMAN SPIRIT. 

"PORNOGRAPHY IS THE ATTEMPT TO INSULT SEX, TO DO DIRT ON IT.  THIS IS
UNPARDONABLE.  TAKE THE VERY LOWEST INSTANCE, THE PICTURE POST-CARD
SOLD UNDERHAND, BY THE UNDERWORLD, IN MOST CITIES.  WHAT I HAVE SEEN OF
THEM HAVE BEEN OF AN UGLINESS TO MAKE YOU CRY.  THE INSULT TO THE HUMAN
BODY, THE INSULT TO A VITAL HUMAN RELATIONSHIP]  UGLY AND CHEAP THEY
MAKE THE HUMAN NUDITY, UGLY AND DEGRADED THEY MAKE THE SEXUAL ACT,
TRIVIAL AND CHEAP AND NASTY."  (D.H. LAWRENCE, PORNOGRAPHY AND
OBSCENITY, PP. 12-13.) 

THIS TRAFFIC HAS NOT LESSENED SINCE LAWRENCE WROTE.  APPARENTLY IT IS
ON THE INCREASE.  IN THE COURSE OF THE RECENT DEBATE IN BOTH HOUSES OF
PARLIAMENT ON THE OBSCENE PUBLICATIONS BILL, NOW ON ITS WAY TO PASSAGE,
DESIGNED TO FREE BRITISH AUTHORS FROM THE HAZARDS OF TOO RIGOROUS
APPLICATION IN OUR DAY OF LORD COCKBURN'S RULING, IN 1868, IN REGINA V.
HICKLIN, L.R. 3 Q.B.  360, WEIGHTY EXPERIENCE WAS ADDUCED REGARDING THE
EXTENSIVE DISSEMINATION OF PORNOGRAPHIC MATERIALS.  (FN1)  SEE 597
PARLIAMENTARY DEBATES, H.C., NO. 36 (TUESDAY, DECEMBER 16, 1958),
COLS.  992 ET SEQ., AND 216 PARLIAMENTARY DEBATES H.L., NO. 77
(TUESDAY, JUNE 2, 1959), COLS.  489 ET SEQ. NOR IS THERE ANY REASON TO
BELIEVE THAT ON THIS SIDE OF THE OCEAN THERE HAS BEEN A DIMINUTION IN
THE PORNOGRAPHIC BUSINESS WHICH YEARS AGO SOUGHT A FLOURISHING MARKET
IN SOME OF THE LEADING SECONDARY SCHOOLS FOR BOYS, WHO PRESUMABLY HAD
MORE MEANS THAN BOYS IN THE PUBLIC HIGH SCHOOLS. 

IT IS NOT SURPRISING, THEREFORE, THAT THE PERTINACIOUS, ELOQUENT AND
FREE-SPIRITED PROMOTERS OF THE LIBERALIZING LEGISLATION IN GREAT
BRITAIN DID NOT CONCEIVE THE NEEDS OF A CIVILIZED SOCIETY, IN ASSURING
THE UTMOST FREEDOM TO THOSE WHO MAKE LITERATURE AND ART POSSIBLE -
AUTHORS, ARTISTS, PUBLISHERS, PRODUCERS, BOOK SELLERS - EASILY
ATTAINABLE BY SOUNDING ABSTRACT AND UNQUALIFIED DOGMAS ABOUT FREEDOM. 
THEY HAD A KEEN AWARENESS THAT FREEDOM OF EXPRESSION IS NO MORE AN
ABSOLUTE THAN ANY OTHER FREEDOM, AN AWARENESS THAT IS REFLECTED IN THE
OPINIONS OF MR. JUSTICE HOLMES AND MR. JUSTICE BRANDEIS, TO WHOM WE
PREDOMINANTLY OWE THE PRESENT CONSTITUTIONAL SAFEGUARDS ON BEHALF OF
FREEDOM OF EXPRESSION.  AND SEE NEAR V. MINNESOTA, 283 U.S. 697, 715
716, FOR LIMITATIONS ON CONSTITUTIONALLY PROTECTED FREEDOM OF SPEECH. 
(FN2) 

IN SHORT, THERE IS AN EVIL AGAINST WHICH A STATE MAY CONSTITUTIONALLY
PROTECT ITSELF, WHATEVER WE MAY THINK ABOUT THE QUESTIONS OF POLICY
INVOLVED.  THE REAL PROBLEM IS THE FORMULATION OF CONSTITUTIONALLY
ALLOWABLE SAFEGUARDS WHICH SOCIETY MAY TAKE AGAINST EVIL WITHOUT
IMPINGING UPON THE NECESSARY DEPENDENCE OF A FREE SOCIETY UPON THE
FULLEST SCOPE OF FREE EXPRESSION.  ONE CANNOT READ THE DEBATES IN THE
HOUSE OF COMMONS AND THE HOUSE OF LORDS AND NOT REALIZE THE DIFFICULTY
OF RECONCILING THESE CONFLICTING INTERESTS, IN THE FRAMING OF
LEGISLATION ON THE ENDS OF WHICH THERE WAS AGREEMENT, EVEN FOR THOSE
WHO MOST GENEROUSLY ESPOUSE THAT FREEDOM OF EXPRESSION WITHOUT WHICH
ALL FREEDOM GRADUALLY WITHERS. 

IT IS NOT OUR PROVINCE TO MEET THESE RECALCITRANT PROBLEMS OF
LEGISLATIVE DRAFTING.  OURS IS THE VITAL BUT VERY LIMITED TASK OF
SCRUTINIZING THE WORK OF THE DRAFTSMEN IN ORDER TO DETERMINE WHETHER
THEY HAVE KEPT WITHIN THE NARROW LIMITS OF THE KIND OF CENSORSHIP WHICH
EVEN D.H. LAWRENCE DEEMED NECESSARY.  THE LEGISLATION MUST NOT BE SO
VAGUE, THE LANGUAGE SO LOOSE, AS TO LEAVE TO THOSE WHO HAVE TO APPLY IT
TOO WIDE A DISCRETION FOR SWEEPING WITHIN ITS CONDEMNATION WHAT IS
PERMISSIBLE EXPRESSION AS WELL AS WHAT SOCIETY MAY PERMISSIBLY
PROHIBIT.  ALWAYS REMEMBERING THAT THE WIDEST SCOPE OF FREEDOM IS TO BE
GIVEN TO THE ADVENTUROUS AND IMAGINATIVE EXERCISE OF THE HUMAN SPIRIT,
WE HAVE STRUCK DOWN LEGISLATION PHRASED IN LANGUAGE INTRINSICALLY
VAGUE, UNLESS IT BE RESPONSIVE TO THE COMMON UNDERSTANDING OF MEN EVEN
THOUGH NOT SUSCEPTIBLE OF EXPLICIT DEFINITION.  THE ULTIMATE REASON FOR
INVALIDATING SUCH LAWS IS THAT THEY LEAD TO TIMIDITY AND INERTIA AND
THEREBY DISCOURAGE THE BOLDNESS OF EXPRESSION INDISPENSABLE FOR A
PROGRESSIVE SOCIETY. 

THE NEW YORK LEGISLATION OF 1954 WAS THE PRODUCT OF CAREFUL LAWYERS
WHO SOUGHT TO MEET DECISIONS OF THIS COURT WHICH HAD LEFT NO DOUBT THAT
A MOTION-PICTURE LICENSING LAW IS NOT INHERENTLY OUTSIDE THE SCOPE OF
THE REGULATORY POWERS OF A STATE UNDER THE FOURTEENTH AMENDMENT.  THE
COURT DOES NOT STRIKE THE LAW DOWN BECAUSE OF VAGUENESS, AS WE STRUCK
DOWN PRIOR NEW YORK LEGISLATION.  NOR DOES IT REVERSE THE JUDGMENT OF
THE NEW YORK COURT OF APPEALS, AS I WOULD, BECAUSE IN APPLYING THE NEW
YORK LAW TO "LADY CHATTERLEY'S LOVER" IT APPLIED IT TO A PICTURE TO
WHICH IT CANNOT BE APPLIED WITHOUT INVADING THE AREA OF
CONSTITUTIONALLY FREE EXPRESSION.  THE DIFFICULTY WHICH THE COURT FINDS
SEEMS TO DERIVE FROM SOME EXPRESSIONS CULLED HERE AND THERE FROM THE
OPINION OF THE CHIEF JUDGE OF THE NEW YORK COURT OF APPEALS.  THIS
LEADS THE COURT TO GIVE THE PHRASE "ACTS OF SEXUAL IMMORALITY  ...  AS
DESIRABLE, ACCEPTABLE OR PROPER PATTERNS OF BEHAVIOR" AN INNOCENT
CONTENT, MEANING, IN EFFECT, AN ALLOWABLE SUBJECT MATTER FOR
DISCUSSION.  BUT, SURELY, TO ATTRIBUTE THAT RESULT TO THE DECISION OF
THE COURT OF APPEALS, ON THE BASIS OF A FEW DETACHED PHRASES OF CHIEF
JUDGE CONWAY, IS TO BREAK A FAGGOT INTO PIECES, IS TO FORGET THAT THE
MEANING OF LANGUAGE IS TO BE FELT AND ITS PHRASES NOT TO BE TREATED
DISJOINTEDLY.  "SEXUAL IMMORALITY" IS NOT A NEW PHRASE IN THIS BRANCH
OF LAW AND ITS IMPLICATIONS DOMINATE THE CONTEXT.  I HARDLY CONCEIVE IT
POSSIBLE THAT THE COURT WOULD STRIKE DOWN AS UNCONSTITUTIONAL THE
FEDERAL STATUTE AGAINST MAILING LEWD, OBSCENE AND LASCIVIOUS MATTER,
WHICH HAS BEEN THE LAW OF THE LAND FOR NEARLY A HUNDRED YEARS, SEE THE
ACT OF MARCH 3, 1865, 13 STAT. 507, AND MARCH 3, 1873, 17 STAT. 599,
WHATEVER SPECIFIC INSTANCES MAY BE FOUND NOT WITHIN ITS ALLOWABLE
PROHIBITION.  IN SUSTAINING THIS LEGISLATION THIS COURT GAVE THE WORDS
"LEWD, OBSCENE AND LASCIVIOUS" CONCRETENESS BY SAYING THAT THEY CONCERN
"SEXUAL IMMORALITY."  AND ONLY VERY RECENTLY THE COURT SUSTAINED THE
CONSTITUTIONALITY OF THE STATUTE.  ROTH V. UNITED STATES, 354 U.S.
476. 

UNLESS I MISREAD THE OPINION OF THE COURT, IT STRIKES DOWN THE NEW
YORK LEGISLATION IN ORDER TO ESCAPE THE TASK OF DECIDING WHETHER A
PARTICULAR PICTURE IS ENTITLED TO THE PROTECTION OF EXPRESSION UNDER
THE FOURTEENTH AMENDMENT.  SUCH AN EXERCISE OF THE JUDICIAL FUNCTION,
HOWEVER ONEROUS OR UNGRATEFUL, INHERES IN THE VERY NATURE OF THE
JUDICIAL ENFORCEMENT OF THE DUE PROCESS CLAUSE.  WE CANNOT ESCAPE SUCH
INSTANCE-BY-INSTANCE, CASE-BY-CASE APPLICATION OF THAT CLAUSE IN ALL
THE VARIETIES OF SITUATIONS THAT COME BEFORE THIS COURT.  IT WOULD BE
COMFORTABLE IF, BY A COMPREHENSIVE FORMULA, WE COULD DECIDE WHEN A
CONFESSION IS COERCED SO AS TO VITIATE A STATE CONVICTION.  THERE IS NO
SUCH TALISMANIC FORMULA.  EVERY TERM WE HAVE TO EXAMINE THE PARTICULAR
CIRCUMSTANCES OF A PARTICULAR CASE IN ORDER TO APPLY GENERALITIES WHICH
NO ONE DISPUTES.  IT WOULD BE EQUALLY COMFORTABLE IF A GENERAL FORMULA
COULD DETERMINE THE UNFAIRNESS OF A STATE TRIAL FOR WANT OF COUNSEL. 
BUT, EXCEPT IN CAPITAL CASES, WE HAVE TO THREAD OUR WAY, TERM AFTER
TERM, THROUGH THE PARTICULAR CIRCUMSTANCES OF A PARTICULAR CASE IN
RELATION TO A PARTICULAR DEFENDANT IN ORDER TO ASCERTAIN WHETHER DUE
PROCESS WAS DENIED IN THE UNIQUE SITUATION BEFORE US.  WE ARE
CONSTANTLY CALLED UPON TO CONSIDER THE ALLEGED MISCONDUCT OF A
PROSECUTOR AS VITIATING THE FAIRNESS OF A PARTICULAR TRIAL OR THE
INFLAMED STATE OF PUBLIC OPINION IN A PARTICULAR CASE AS UNDERMINING
THE CONSTITUTIONAL RIGHT TO DUE PROCESS.  AGAIN, IN THE SERIES OF CASES
COMING HERE FROM THE STATE COURTS, IN WHICH DUE PROCESS WAS INVOKED TO
ENFORCE SEPARATION OF CHURCH AND STATE, DECISION CERTAINLY TURNED ON
THE PARTICULARITIES OF THE SPECIFIC SITUATIONS BEFORE THE COURT.  IT IS
NEEDLESS TO MULTIPLY INSTANCES.  IT IS THE NATURE OF THE CONCEPT OF DUE
PROCESS, AND, I VENTURE TO BELIEVE, ITS HIGH SERVICEABILITY IN OUR
CONSTITUTIONAL SYSTEM, THAT THE JUDICIAL ENFORCEMENT OF THE DUE PROCESS
CLAUSE IS THE VERY ANTITHESIS OF A PROCRUSTEAN RULE.  THIS WAS
RECOGNIZED IN THE FIRST FULL-DRESS DISCUSSION OF THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT, WHEN THE COURT DEFINED THE NATURE OF THE
PROBLEM AS A "GRADUAL PROCESS OF JUDICIAL INCLUSION AND EXCLUSION, AS
THE CASES PRESENTED FOR DECISION SHALL REQUIRE, WITH THE REASONS ON
WHICH SUCH DECISION MAY BE FOUNDED."  DAVIDSON V. NEW ORLEANS, 96 U.S.
97, 104.  THE TASK IS ONEROUS AND EXACTING, DEMANDING AS IT DOES THE
UTMOST DISCIPLINE IN OBJECTIVITY, THE SEVEREST CONTROL OF PERSONAL
PREDILECTIONS.  BUT IT CANNOT BE ESCAPED, NOT EVEN BY DISAVOWING THAT
SUCH IS THE NATURE OF OUR TASK. 

FN1  "IN THE COURSE OF OUR ENQUIRIES, WE HAVE BEEN IMPRESSED WITH THE
EXISTENCE OF A CONSIDERABLE AND LUCRATIVE TRADE IN PORNOGRAPHY  ...
."  REPORT OF THE SELECT COMMITTEE ON OBSCENE PUBLICATIONS TO THE HOUSE
OF COMMONS, MARCH 20, 1958, P. IV. 

FN2  "THE OBJECTION HAS ALSO BEEN MADE THAT THE PRINCIPLE AS TO
IMMUNITY FROM PREVIOUS RESTRAINT IS STATED TOO BROADLY, IF EVERY SUCH
RESTRAINT IS DEEMED TO BE PROHIBITED.  THAT IS UNDOUBTEDLY TRUE; THE
PROTECTION EVEN AS TO PREVIOUS RESTRAINT IS NOT ABSOLUTELY UNLIMITED. 
BUT THE LIMITATION HAS BEEN RECOGNIZED ONLY IN EXCEPTIONAL CASES  ...
."  283 U.S., AT 715-716. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 

WHILE I JOIN IN THE OPINION OF THE COURT, I ADHERE TO THE VIEWS I
EXPRESSED IN SUPERIOR FILMS V. DEPARTMENT OF EDUCATION, 346 U.S. 587,
588-589, THAT CENSORSHIP OF MOVIES IS UNCONSTITUTIONAL, SINCE IT IS A
FORM OF "PREVIOUS RESTRAINT" THAT IS AS MUCH AT WAR WITH THE FIRST
AMENDMENT, MADE APPLICABLE TO THE STATES THROUGH THE FOURTEENTH, AS THE
CENSORSHIP STRUCK DOWN IN NEAR V. MINNESOTA, 283 U.S. 697.  IF A
PARTICULAR MOVIE VIOLATES A VALID LAW, THE EXHIBITOR CAN BE PROSECUTED
IN THE USUAL WAY.  I CAN FIND IN THE FIRST AMENDMENT NO ROOM FOR ANY
CENSOR WHETHER HE IS SCANNING AN EDITORIAL, READING A NEWS BROADCAST,
EDITING A NOVEL OR A PLAY, OR PREVIEWING A MOVIE. 

REFERENCE IS MADE TO BRITISH LAW AND BRITISH PRACTICE.  BUT THEY HAVE
LITTLE RELEVANCE TO OUR PROBLEM, SINCE WE LIVE UNDER A WRITTEN
CONSTITUTION.  WHAT IS ENTRUSTED TO THE KEEPING OF THE LEGISLATURE IN
ENGLAND IS PROTECTED FROM LEGISLATIVE INTERFERENCE OR REGULATION HERE. 
AS WE STATED IN BRIDGES V. CALIFORNIA, 314 U.S. 252, 265, "NO PURPOSE
IN RATIFYING THE BILL OF RIGHTS WAS CLEARER THAN THAT OF SECURING FOR
THE PEOPLE OF THE UNITED STATES MUCH GREATER FREEDOM OF RELIGION,
EXPRESSION, ASSEMBLY, AND PETITION THAN THE PEOPLE OF GREAT BRITAIN HAD
EVER ENJOYED."  IF WE HAD A PROVISION IN OUR CONSTITUTION FOR
"REASONABLE" REGULATION OF THE PRESS SUCH AS INDIA HAS INCLUDED IN
HERS, (FN1) THERE WOULD BE ROOM FOR ARGUMENT THAT CENSORSHIP IN THE
INTERESTS OF MORALITY WOULD BE PERMISSIBLE.  JUDGES SOMETIMES TRY TO
READ THE WORD "REASONABLE" INTO THE FIRST AMENDMENT OR MAKE THE RIGHTS
IT GRANTS SUBJECT TO REASONABLE REGULATION (SEE BEAUHARNAIS V.
ILLINOIS, 343 U.S. 250, 262; DENNIS V. UNITED STATES, 341 U.S. 494, 523
525), OR APPLY TO THE STATES A WATERED-DOWN VERSION OF THE FIRST
AMENDMENT.  SEE ROTH V. UNITED STATES, 354 U.S. 476, 505-506.  BUT ITS
LANGUAGE, IN TERMS THAT ARE ABSOLUTE, IS UTTERLY AT WAR WITH
CENSORSHIP.  DIFFERENT QUESTIONS MAY ARISE AS TO CENSORSHIP OF SOME
NEWS WHEN THE NATION IS ACTUALLY AT WAR.  BUT ANY POSSIBLE EXCEPTIONS
ARE EXTREMELY LIMITED.  THAT IS WHY THE TRADITION REPRESENTED BY NEAR
V. MINNESOTA, SUPRA, REPRESENTS OUR CONSTITUTIONAL IDEAL. 

HAPPILY GOVERNMENT CENSORSHIP HAS PUT DOWN FEW ROOTS IN THIS
COUNTRY.  THE AMERICAN TRADITION IS REPRESENTED BY NEAR V. MINNESOTA,
SUPRA.  SEE LOCKHART AND MCCLURE, LITERATURE, THE LAW OF OBSCENITY, AND
THE CONSTITUTION, 38 MINN. L. REV. 295, 324-325; ALPERT, JUDICIAL
CENSORSHIP OF OBSCENE LITERATURE, 52 HARV. L. REV. 40, 53 ET SEQ. WE
HAVE IN THE UNITED STATES NO COUNTERPART OF THE LORD CHAMBERLAIN WHO IS
CENSOR OVER ENGLAND'S STAGE.  AS LATE AS 1941 ONLY SIX STATES HAD
SYSTEMS OF CENSORSHIP FOR MOVIES.  CHAFEE, FREE SPEECH IN THE UNITED
STATES (1941), P. 540.  THAT NUMBER HAS NOW BEEN REDUCED TO FOUR (FN2)
KANSAS, MARYLAND, NEW YORK, AND VIRGINIA - PLUS A FEW CITIES.  EVEN IN
THESE AREAS, CENSORSHIP OF MOVIES SHOWN ON TELEVISION GIVES WAY BY
REASON OF THE FEDERAL COMMUNICATIONS ACT.  SEE ALLEN B. DUMONT
LABORATORIES V. CARROLL, 184 F.2D 153.  AND FROM WHAT INFORMATION IS
AVAILABLE, MOVIE CENSORS DO NOT SEEM TO BE VERY ACTIVE.  (FN3)
DELETION OF THE RESIDUAL PART OF CENSORSHIP THAT REMAINS WOULD
CONSTITUTE THE ELIMINATION OF AN INSTITUTION THAT INTRUDES ON FIRST
AMENDMENT RIGHTS. 

FN1  SECTION 19(2) OF THE INDIAN CONSTITUTION PERMITS "REASONABLE
RESTRICTIONS" ON THE EXERCISE OF THE RIGHT OF FREEDOM OF SPEECH AND
EXPRESSION IN THE INTERESTS, INTER ALIA, OF "DECENCY OR MORALITY ...
DEFAMATION OR INCITEMENT TO AN OFFENCE."  THIS LIMITATION IS STRICTLY
CONSTRUED; ANY RESTRICTION AMOUNTING TO AN "IMPOSITION" WHICH WILL
"OPERATE HARSHLY" ON SPEECH OR THE PRESS WILL BE HELD INVALID.  SEE
SESHADRI V. DISTRICT MAGISTRATE, TANGORE, 41 A.I.R. (SUP. CT.)  747,
749. 

FN2  SEE NOTE, 71 HARV. L. REV. 326, 328, N. 14. 

FN3  ID., P. 332. 

MR. JUSTICE CLARK, CONCURRING IN THE RESULT. 

I CAN TAKE THE WORDS OF THE MAJORITY OF THE NEW YORK COURT OF APPEALS
ONLY IN THEIR CLEAR, UNSOPHISTICATED AND COMMON MEANING.  THEY SAY THAT
SECS. 122 AND 122-A OF NEW YORK'S EDUCATION LAW "REQUIRE THE DENIAL OF
A LICENSE TO MOTION PICTURES WHICH ARE IMMORAL IN THAT THEY PORTRAY
'ACTS OF SEXUAL IMMORALITY  ...  AS DESIRABLE, ACCEPTABLE OR PROPER
PATTERNS OF BEHAVIOR.'"  THAT COURT STATES THE ISSUE IN THE CASE IN
THIS LANGUAGE: 

"MOVING PICTURES ARE OUR ONLY CONCERN AND, WHAT IS MORE TO THE POINT,
ONLY THOSE MOTION PICTURES WHICH ALLURINGLY PRESENT ACTS OF SEXUAL
IMMORALITY AS PROPER BEHAVIOR."  4 N.Y.2D 349, 361, 151 N.E.2D 197,
203, 175 N.Y.S.2D 39, 48. 

MOREOVER, IT IS SIGNIFICANT TO NOTE THAT IN ITS 14-PAGE OPINION THAT
COURT SAYS AGAIN AND AGAIN, IN FACT 15 TIMES, THAT THE PICTURE "LADY
CHATTERLEY'S LOVER" IS PROSCRIBED BECAUSE OF ITS "ESPOUSAL" OF SEXUAL
IMMORALITY AS "DESIRABLE" OR AS "PROPER CONDUCT FOR THE PEOPLE OF OUR
STATE."* 

*THE PHRASE IS NOT ALWAYS IDENTICAL BUT VARIES FROM THE WORDS OF THE
STATUTE, "ACTS OF SEXUAL IMMORALITY  ...  AS DESIRABLE, ACCEPTABLE OR
PROPER PATTERNS OF BEHAVIOR," TO SUCH TERMS "AS PROPER CONDUCT FOR THE
PEOPLE OF OUR STATE"; "EXALTATION OF ILLICIT SEXUAL LOVE IN DEROGATION
OF THE RESTRAINTS OF MARRIAGE"; AS "A PROPER PATTERN OF BEHAVIOR"; "THE
ESPOUSAL OF SEXUALLY IMMORAL ACTS"; "WHICH DEBASE FUNDAMENTAL SEXUAL
MORALITY BY PORTRAYING ITS CONVERSE TO THE PEOPLE AS ALLURING AND
DESIRABLE"; "WHICH ALLURINGLY PORTRAYS SEXUALLY IMMORAL ACTS AS PROPER
BEHAVIOR"; "BY PRESENTING ...  ADULTERY IN A CLEARLY APPROBATORY
MANNER"; "WHICH ALLURINGLY PORTRAYS ADULTERY AS PROPER BEHAVIOR";
"WHICH ALLURINGLY PORTRAY ACTS OF SEXUAL IMMORALITY (HERE ADULTERY) AND
RECOMMEND THEM AS A PROPER WAY OF LIFE"; "WHICH ALLURINGLY PORTRAY
ADULTERY AS PROPER AND DESIRABLE"; AND "WHICH ALLURINGLY PORTRAY ACTS
OF SEXUAL IMMORALITY BY ADULTERY AS PROPER BEHAVIOR." 

THE MINORITY OF MY BROTHERS HERE, HOWEVER, TWIST THIS HOLDING INTO
ONE THAT NEW YORK'S ACT REQUIRES "OBSCENITY OR INCITEMENT, NOT JUST
ABSTRACT EXPRESSIONS OF OPINION."  BUT I CANNOT SO OBLITERATE THE
REPEATED DECLARATIONS ABOVE-MENTIONED THAT WERE MADE NOT ONLY 15 TIMES
BY THE COURT OF APPEALS BUT WHICH WERE THE BASIS OF THE BOARD OF
REGENTS' DECISION AS WELL.  SUCH A CONSTRUCTION WOULD RAISE MANY
PROBLEMS, NOT THE LEAST OF WHICH WOULD BE OUR FAILURE TO ACCEPT NEW
YORK'S INTERPRETATION OF THE SCOPE OF ITS OWN ACT.  I FEEL, AS DOES THE
MAJORITY HERE, BOUND BY THEIR HOLDING. 

IN THIS CONTEXT, THE ACT COMES WITHIN THE BAN OF JOSEPH BURSTYN,
INC., V. WILSON, 343 U.S. 495 (1952).  WE HELD THERE THAT "EXPRESSION
BY MEANS OF MOTION PICTURES IS INCLUDED WITHIN THE FREE SPEECH AND FREE
PRESS GUARANTY OF THE FIRST AND FOURTEENTH AMENDMENTS."  ID., AT 502. 
REFERRING TO NEAR V. MINNESOTA, 283 U.S. 697 (1931), WE SAID THAT WHILE
"A MAJOR PURPOSE OF THE FIRST AMENDMENT GUARANTY OF A FREE PRESS WAS TO
PREVENT PRIOR RESTRAINTS UPON PUBLICATION" SUCH PROTECTION WAS NOT
UNLIMITED BUT DID PLACE ON THE STATE "A HEAVY BURDEN TO DEMONSTRATE
THAT THE LIMITATION CHALLENGED" WAS EXCEPTIONAL.  ID., AT 503-504.  THE
STANDARD APPLIED THERE WAS THE WORD "SACRILEGIOUS" AND WE FOUND IT SET
THE CENSOR "ADRIFT UPON A BOUNDLESS SEA AMID A MYRIAD OF CONFLICTING
CURRENTS OF RELIGIOUS VIEWS  ...  ."  ID., AT 504.  WE STRUCK IT DOWN. 

HERE THE STANDARD IS THE PORTRAYAL OF "ACTS OF SEXUAL IMMORALITY  ...
AS DESIRABLE, ACCEPTABLE OR PROPER PATTERNS OF BEHAVIOR."  MOTION
PICTURE PLAYS INVARIABLY HAVE A HERO, A VILLAIN, SUPPORTING CHARACTERS,
A LOCATION, A PLOT, A DIVERSION FROM THE MAIN THEME AND USUALLY A
MORAL.  AS WE SAID IN BURSTYN:  "THEY MAY AFFECT PUBLIC ATTITUDES AND
BEHAVIOR IN A VARIETY OF WAYS, RANGING FROM DIRECT ESPOUSAL OF A
POLITICAL OR SOCIAL DOCTRINE TO THE SUBTLE SHAPING OF THOUGHT WHICH
CHARACTERIZES ALL ARTISTIC EXPRESSION."  343 U.S., AT 501.  WHAT MAY BE
TO ONE VIEWER THE GLORIFICATION OF AN IDEA AS BEING "DESIRABLE,
ACCEPTABLE OR PROPER" MAY TO THE NOTIONS OF ANOTHER BE ENTIRELY DEVOID
OF SUCH A TEACHING.  THE ONLY LIMITS ON THE CENSOR'S DISCRETION IS HIS
UNDERSTANDING OF WHAT IS INCLUDED WITHIN THE TERM "DESIRABLE,
ACCEPTABLE OR PROPER."  THIS IS NOTHING LESS THAN A ROVING COMMISSION
IN WHICH INDIVIDUAL IMPRESSIONS BECOME THE YARDSTICK OF ACTION, AND
RESULT IN REGULATION IN ACCORDANCE WITH THE BELIEFS OF THE INDIVIDUAL
CENSOR RATHER THAN REGULATION BY LAW.  EVEN HERE THREE OF MY BROTHERS
"CANNOT REGARD THIS FILM AS DEPICTING ANYTHING MORE THAN A SOMEWHAT
UNUSUAL, AND RATHER PATHETIC, 'LOVE TRIANGLE.'"  AT LEAST THREE -
PERHAPS FOUR - OF THE MEMBERS OF NEW YORK'S HIGHEST COURT THOUGHT
OTHERWISE.  I NEED ONLY SAY THAT THE OBSCURITY OF THE STANDARD PRESENTS
SUCH A CHOICE OF DIFFICULTIES THAT EVEN THE MOST EXPERIENCED FIND
THEMSELVES AT DAGGER'S POINT. 

IT MAY BE, AS CHIEF JUDGE CONWAY SAID, "THAT OUR PUBLIC MORALITY,
POSSIBLY MORE THAN EVER BEFORE, NEEDS EVERY PROTECTION GOVERNMENT CAN
GIVE."  4 N.Y.2D, AT 363, 151 N.E.2D, AT 204-205, 175 N.Y.S.2D, AT 50. 
AND, AS MY BROTHER HARLAN POINTS OUT, "EACH TIME SUCH A STATUTE IS
STRUCK DOWN, THE STATE IS LEFT IN MORE CONFUSION."  THIS IS TRUE WHERE
BROAD GROUNDS ARE EMPLOYED LEAVING NO INDICATION AS TO WHAT MAY BE
NECESSARY TO MEET THE REQUIREMENTS OF DUE PROCESS.  I SEE NO GROUNDS
FOR CONFUSION, HOWEVER, WERE A STATUTE TO BAN "PORNOGRAPHIC" FILMS, OR
THOSE THAT "PORTRAY ACTS OF SEXUAL IMMORALITY, PERVERSION OR
LEWDNESS."  IF NEW YORK'S STATUTE HAD BEEN SO CONSTRUED BY ITS HIGHEST
COURT I BELIEVE IT WOULD HAVE MET THE REQUIREMENTS OF DUE PROCESS. 
INSTEAD, IT PLACED MORE EMPHASIS ON WHAT THE FILM TEACHES THAN ON WHAT
IT DEPICTS.  THERE IS WHERE THE CONFUSION ENTERS.  FOR THIS REASON, I
WOULD REVERSE ON THE AUTHORITY OF BURSTYN. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, CONCURRING IN THE RESULT. 

I THINK THE COURT HAS MOVED TOO SWIFTLY IN STRIKING DOWN A STATUTE
WHICH IS THE PRODUCT OF A DELIBERATE AND CONSCIENTIOUS EFFORT ON THE
PART OF NEW YORK TO MEET CONSTITUTIONAL OBJECTIONS RAISED BY THIS
COURT'S DECISIONS RESPECTING PREDECESSOR STATUTES IN THIS FIELD.  BUT
ALTHOUGH I DISAGREE WITH THE COURT THAT THE PARTS OF SECS. 122 AND 122
A OF THE NEW YORK EDUCATION LAW, 16 N.Y. LAWS ANN. SEC. 122 (MCKINNEY
1953), 16 N.Y. LAWS ANN. SEC. 122-A (MCKINNEY SUPP. 1958), HERE
PARTICULARLY INVOLVED ARE UNCONSTITUTIONAL ON THEIR FACE, I BELIEVE
THAT IN THEIR APPLICATION TO THIS FILM CONSTITUTIONAL BOUNDS WERE
EXCEEDED. 

                     I. 

THIS COURT'S DECISION IN COMMERCIAL PICTURES CORP. V. REGENTS, 346 U.S.
587, WHICH OVERTURNED THE NEW YORK COURT OF APPEALS' HOLDING IN IN RE
COMMERCIAL PICTURES CORP. V. BOARD OF REGENTS, 305 N.Y. 336, 113 N.E.2D
502, THAT THE FILM LA RONDE COULD BE BANNED AS "IMMORAL" AND AS
"TENDING TO CORRUPT MORALS" UNDER SEC. 122.  (FN1)  THE COURT'S
DECISION IN COMMERCIAL PICTURES WAS BUT A ONE LINE PER CURIAM WITH A
CITATION TO JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495, WHICH IN TURN
HAD HELD FOR NAUGHT NOT THE WORD "IMMORAL" BUT THE TERM "SACRILEGIOUS"
IN THE STATUTE. 

NEW YORK, NEVERTHELESS, SET ABOUT REPAIRING ITS STATUTE.  THIS IT DID
BY ENACTING SEC. 122-A WHICH IN THE RESPECTS EMPHASIZED IN THE PRESENT
OPINION OF CHIEF JUDGE CONWAY AS PERTINENT HERE DEFINES AN "IMMORAL"
MOTION PICTURE FILM AS ONE WHICH PORTRAYS "'ACTS OF SEXUAL IMMORALITY
...  AS DESIRABLE, ACCEPTABLE OR PROPER PATTERNS OF BEHAVIOR.'"  4
N.Y.2D 349, 351, 151 N.E.2D 197, 175 N.Y.S.2D 39.  (FN2)  THE COURT NOW
HOLDS THIS PART OF NEW YORK'S EFFORT UNCONSTITUTIONAL ON ITS FACE UNDER
THE FOURTEENTH AMENDMENT.  I CANNOT AGREE. 

THE COURT DOES NOT SUGGEST THAT THESE PROVISIONS ARE BAD FOR
VAGUENESS.  (FN3)  ANY SUCH SUGGESTION APPEARS TO ME UNTENABLE IN VIEW
OF THE LONG-STANDING USAGE IN THIS COURT OF THE CONCEPT "SEXUAL
IMMORALITY" TO EXPLAIN IN PART THE MEANING OF "OBSCENITY."  SEE, E.G.,
SWEARINGEN V. UNITED STATES, 161 U.S. 446, 451.  (FN4)  INSTEAD, THE
COURT FINDS A CONSTITUTIONAL VICE IN THESE PROVISIONS IN THAT THEY
REQUIRE, SO IT IS SAID, NEITHER "OBSCENITY" NOR INCITEMENT TO "SEXUAL
IMMORALITY," BUT STRIKE OF THEIR OWN FORCE AT THE MERE ADVOCACY OF "AN
IDEA - THAT ADULTERY UNDER CERTAIN CIRCUMSTANCES MAY BE PROPER
BEHAVIOR"; EXPRESSIONS OF "OPINION THAT ADULTERY MAY SOMETIMES BY
PROPER  ...  ."  I THINK THIS CHARACTERIZATION OF THESE PROVISIONS
MISCONCEIVES THE CONSTRUCTION PUT UPON THEM BY THE PREVAILING OPINIONS
IN THE COURT OF APPEALS.  GRANTING THAT THE ABSTRACT PUBLIC DISCUSSION
OR ADVOCACY OF ADULTERY, UNACCOMPANIED BY OBSCENE PORTRAYAL OR ACTUAL
INCITEMENT TO SUCH BEHAVIOR, MAY NOT CONSTITUTIONALLY BE PROSCRIBED BY
THE STATE, I DO NOT READ THOSE OPINIONS TO HOLD THAT THE STATUTE ON ITS
FACE UNDERTAKES ANY SUCH PROSCRIPTION.  CHIEF JUDGE CONWAY'S OPINION,
WHICH WAS JOINED BY TWO OTHERS OF THE SEVEN JUDGES OF THE COURT OF
APPEALS, AND IN THE THRUST OF WHICH ONE MORE CONCURRED, TO BE SURE WITH
SOME DOUBT, STATES (4 N.Y.2D, AT 356, 151 N.E.2D, AT 200, 175 N.Y.S.2D,
AT 44): 

"IT SHOULD FIRST BE EMPHASIZED THAT THE SCOPE OF SECTION 122-A IS NOT
MERE EXPRESSION OF OPINION IN THE FORM, FOR EXAMPLE, OF A FILMED
LECTURE WHOSE SUBJECT MATTER IS THE ESPOUSAL OF ADULTERY.  WE REITERATE
THAT THIS CASE INVOLVES THE ESPOUSAL OF SEXUALLY IMMORAL ACTS (HERE
ADULTERY) PLUS ACTUAL SCENES OF A SUGGESTIVE AND OBSCENE NATURE." 

THE OPINION ELSEWHERE, AS INDEED IS ALSO THE CASE WITH SECS. 122 AND
122-A THEMSELVES WHEN INDEPENDENTLY READ IN THEIR ENTIRETY, IS INSTINCT
WITH THE NOTION THAT MERE ABSTRACT EXPRESSIONS OF OPINION REGARDING THE
DESIRABILITY OF SEXUAL IMMORALITY, UNACCOMPANIED BY OBSCENITY (FN5) OR
INCITEMENT, ARE NOT PROSCRIBED.  SEE 4 N.Y.2D 349, ESPECIALLY AT 351
352, 354, 356-358, 361, 363-364; 151 N.E.2D 197, AT 197, 199, 200-201,
203, 204-205; 175 N.Y.S.2D 39, AT 40, 42, 44-46, 48, 50-51; AND NOTES 1
AND 2, SUPRA.  IT IS THE CORRUPTION OF PUBLIC MORALS, OCCASIONED BY THE
INCITING EFFECT OF A PARTICULAR PORTRAYAL OR BY WHAT NEW YORK HAS
DEEMED THE NECESSARY EFFECT OF OBSCENITY, AT WHICH THE STATUTE IS
AIMED.  IN THE WORDS OF CHIEF JUDGE CONWAY, THERE IS NO DIFFERENCE IN
SUBSTANCE BETWEEN MOTION PICTURES WHICH ARE CORRUPTIVE OF THE PUBLIC
MORALS, AND SEXUALLY SUGGESTIVE, BECAUSE OF A PREDOMINANCE OF
SUGGESTIVE SCENES, AND THOSE WHICH ACHIEVE PRECISELY THE SAME EFFECT BY
PRESENTING ONLY SEVERAL SUCH SCENES IN A CLEARLY APPROBATORY MANNER
THROUGHOUT THE COURSE OF THE FILM.  THE LAW IS CONCERNED WITH EFFECT,
NOT MERELY WITH BUT ONE MEANS OF PRODUCING IT  ...  THE OBJECTION LIES
IN THE CORROSIVE EFFECT UPON THE PUBLIC SENSE OF SEXUAL MORALITY."  4
N.Y.2D, AT 358, 151 N.E.2D, AT 201, 175 N.Y.S.2D, AT 46. 

I DO NOT UNDERSTAND THAT THE COURT WOULD QUESTION THE
CONSTITUTIONALITY OF THE PARTICULAR PORTIONS OF THE STATUTE WITH WHICH
WE ARE HERE CONCERNED IF THE COURT READ, AS I DO, THE MAJORITY OPINIONS
IN THE COURT OF APPEALS AS CONSTRUING THESE PROVISIONS TO REQUIRE
OBSCENITY OR INCITEMENT, NOT JUST MERE ABSTRACT EXPRESSIONS OF
OPINION.  IT IS DIFFICULT TO UNDERSTAND WHY THE COURT SHOULD STRAIN TO
READ THOSE OPINIONS AS IT HAS.  OUR USUAL COURSE IN CONSTITUTIONAL
ADJUDICATION IS PRECISELY THE OPPOSITE. 
             II. 

THE APPLICATION OF THE STATUTE TO THIS FILM IS QUITE A DIFFERENT
MATTER.  I HAVE HERETOFORE VENTURED THE VIEW THAT IN THIS FIELD THE
STATES HAVE WIDER CONSTITUTIONAL LATITUDE THAN THE FEDERAL GOVERNMENT. 
SEE THE WRITER'S SEPARATE OPINION IN ROTH V. UNITED STATES AND ALBERTS
V. CALIFORNIA, 354 U.S. 476, 496.  WITH THAT APPROACH, I HAVE VIEWED
THIS FILM. 

GIVING DESCRIPTIVE EXPRESSION TO WHAT IN MATTERS OF THIS KIND ARE IN
THE LAST ANALYSIS BOUND TO BE BUT INDIVIDUAL SUBJECTIVE IMPRESSIONS,
OBJECTIVELY AS ONE MAY TRY TO DISCHARGE HIS DUTY AS A JUDGE, IS NOT APT
TO BE REPAYING.  I SHALL THEREFORE CONTENT MYSELF WITH SAYING THAT,
ACCORDING FULL RESPECT TO, AND WITH, I HOPE, SYMPATHETIC CONSIDERATION
FOR, THE VIEWS AND CHARACTERIZATIONS EXPRESSED BY OTHERS, I CANNOT
REGARD THIS FILM AS DEPICTING ANYTHING MORE THAN A SOMEWHAT UNUSUAL,
AND RATHER PATHETIC, "LOVE TRIANGLE," LACKING IN ANYTHING THAT COULD
PROPERLY BE TERMED OBSCENE OR CORRUPTIVE OF THE PUBLIC MORALS BY
INCITING THE COMMISSION OF ADULTERY.  I THEREFORE THINK THAT IN BANNING
THIS FILM NEW YORK HAS EXCEEDED CONSTITUTIONAL LIMITS. 

I CONCLUDE WITH ONE FURTHER OBSERVATION.  IT IS SOMETIMES SAID THAT
THIS COURT SHOULD SHUN CONSIDERING THE PARTICULARITIES OF INDIVIDUAL
CASES IN THIS DIFFICULT FIELD LEST THE COURT BECOME A FINAL "BOARD OF
CENSORSHIP."  BUT I CANNOT UNDERSTAND WHY IT SHOULD BE THOUGHT THAT THE
PROCESS OF CONSTITUTIONAL JUDGMENT IN THIS REALM SOMEHOW STANDS APART
FROM THAT INVOLVED IN OTHER FIELDS, PARTICULARLY THOSE PRESENTING
QUESTIONS OF DUE PROCESS.  NOR CAN I SEE, SHORT OF HOLDING THAT ALL
STATE "CENSORSHIP" LAWS ARE CONSTITUTIONALLY IMPERMISSIBLE, A COURSE
FROM WHICH THE COURT IS CAREFULLY ABSTAINING, HOW THE COURT CAN HOPE
ULTIMATELY TO SPARE ITSELF THE NECESSITY FOR INDIVIDUALIZED
ADJUDICATION.  IN THE VERY NATURE OF THINGS THE PROBLEMS IN THIS AREA
ARE ONES OF INDIVIDUAL CASES, SEE ROTH V. UNITED STATES AND ALBERTS V.
CALIFORNIA, SUPRA, AT 496-498, FOR A "CENSORSHIP" STATUTE CAN HARDLY BE
CONTRIVED THAT WOULD IN EFFECT BE SELF-EXECUTING.  AND, LASTLY, EACH
TIME SUCH A STATUTE IS STRUCK DOWN, THE STATE IS LEFT IN MORE
CONFUSION, AS WITNESS NEW YORK'S EXPERIENCE WITH ITS STATUTE. 

BECAUSE I BELIEVE THE NEW YORK STATUTE WAS UNCONSTITUTIONALLY APPLIED
IN THIS INSTANCE I CONCUR IN THE JUDGMENT OF THE COURT. 

FN1  SECTION 122 PROVIDES:  "THE DIRECTOR OF THE MOTION PICTURE
DIVISION OR, WHEN AUTHORIZED BY THE REGENTS, THE OFFICERS OF A LOCAL
OFFICE OR BUREAU SHALL CAUSE TO BE PROMPTLY EXAMINED EVERY MOTION
PICTURE FILM SUBMITTED TO THEM AS HEREIN REQUIRED, AND UNLESS SUCH FILM
OR A PART THEREOF IS OBSCENE, INDECENT, IMMORAL, INHUMAN, SACRILEGIOUS,
OR IS OF SUCH A CHARACTER THAT ITS EXHIBITION WOULD TEND TO CORRUPT
MORALS OR INCITE TO CRIME, SHALL ISSUE A LICENSE THEREFOR.  IF SUCH
DIRECTOR OR, WHEN SO AUTHORIZED, SUCH OFFICER SHALL NOT LICENSE ANY
FILM SUBMITTED, HE SHALL FURNISH TO THE APPLICANT THEREFOR A WRITTEN
REPORT OF THE REASONS FOR HIS REFUSAL AND A DESCRIPTION OF EACH
REJECTED PART OF A FILM NOT REJECTED IN TOTO." 

FN2  SECTION 122-A PROVIDES: 

"1.  FOR THE PURPOSE OF SECTION ONE HUNDRED TWENTY-TWO OF THIS
CHAPTER, THE TERM 'IMMORAL' AND THE PHRASE 'OF SUCH A CHARACTER THAT
ITS EXHIBITION WOULD TEND TO CORRUPT MORALS' SHALL DENOTE A MOTION
PICTURE FILM OR PART THEREOF, THE DOMINANT PURPOSE OR EFFECT OF WHICH
IS EROTIC OR PORNOGRAPHIC; OR WHICH PORTRAYS ACTS OF SEXUAL IMMORALITY,
PERVERSION, OR LEWDNESS, OR WHICH EXPRESSLY OR IMPLIEDLY PRESENTS SUCH
ACTS AS DESIRABLE, ACCEPTABLE OR PROPER PATTERNS OF BEHAVIOR. 

"2.  FOR THE PURPOSE OF SECTION ONE HUNDRED TWENTY-TWO OF THIS
CHAPTER, THE TERM 'INCITE TO CRIME' SHALL DENOTE A MOTION PICTURE THE
DOMINANT PURPOSE OR EFFECT OF WHICH IS TO SUGGEST THAT THE COMMISSION
OF CRIMINAL ACTS OR CONTEMPT FOR LAW IS PROFITABLE, DESIRABLE,
ACCEPTABLE, OR RESPECTABLE BEHAVIOR; OR WHICH ADVOCATES OR TEACHES THE
USE OF, OR THE METHODS OF USE OF, NARCOTICS OR HABIT-FORMING DRUGS." 

FN3  THE BILL THAT BECAME SEC. 122-A WAS INTRODUCED AT THE REQUEST OF
THE STATE EDUCATION DEPARTMENT, WHICH NOTED IN A MEMORANDUM THAT "THE
ISSUE OF CENSORSHIP, AS SUCH, IS NOT INVOLVED IN THIS BILL.  THIS BILL
MERELY ATTEMPTS TO FOLLOW OUT THE CRITICISM OF THE UNITED STATES
SUPREME COURT BY DEFINING THE WORDS 'IMMORAL' AND 'INCITE TO CRIME.'" 
N.Y.S. LEGIS.  ANN., 1954, 36.  IN A MEMORANDUM ACCOMPANYING HIS
APPROVAL OF THE MEASURE, THE THEN GOVERNOR OF NEW YORK, HIMSELF A
LAWYER, WROTE: 

"SINCE 1921, THE EDUCATION LAW OF THIS STATE HAS REQUIRED THE
LICENSING OF MOTION PICTURES AND AUTHORIZED REFUSAL OF A LICENSE FOR A
MOTION PICTURE WHICH IS 'OBSCENE, INDECENT, IMMORAL' OR WHICH WOULD
'TEND TO CORRUPT MORALS OR INCITE TO CRIME.' 

"RECENT SUPREME COURT DECISIONS HAVE INDICATED THAT THE TERM
'IMMORAL' MAY NOT BE SUFFICIENTLY DEFINITE FOR CONSTITUTIONAL
PURPOSES.  THE PRIMARY PURPOSE OF THIS BILL IS TO DEFINE 'IMMORAL' AND
'TEND TO CORRUPT MORALS' IN CONFORMANCE WITH THE APPARENT REQUIREMENTS
OF THESE CASES.  IT DOES SO BY DEFINING THEM IN TERMS OF 'SEXUAL
IMMORALITY.'  THE WORDS SELECTED FOR THIS DEFINITION ARE BASED ON
JUDICIAL OPINIONS WHICH HAVE GIVEN EXHAUSTIVE AND REASONED TREATMENT TO
THE SUBJECT. 

"THE BILL DOES NOT CREATE ANY NEW LICENSING SYSTEM, EXPAND THE SCOPE
OF MOTION PICTURE CENSORSHIP, OR ENLARGE THE AREA OF PERMISSIBLE PRIOR
RESTRAINT.  ITS SOLE PURPOSE IS TO GIVE TO THE SECTION MORE PRECISION
TO MAKE IT CONFORM TO THE TENOR OF RECENT COURT DECISIONS AND PROSCRIBE
THE EXPLOITATION OF 'FILTH FOR THE SAKE OF FILTH.'  IT DOES SO AS
ACCURATELY AS LANGUAGE PERMITS IN 'WORDS WELL UNDERSTOOD THROUGH LONG
USE.'  (PEOPLE V. WINTERS, 333 U.S. 507, 518 (1948)). 

     *         *         *         *         * 

"THE LANGUAGE OF THE SUPREME COURT OF THE UNITED STATES, IN A RECENT
OPINION OF THIS PRECISE PROBLEM, SHOULD BE NOTED: 

"'TO HOLD THAT LIBERTY AND EXPRESSION BY MEANS OF MOTION PICTURES IS
GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS, HOWEVER, IS NOT THE
END OF OUR PROBLEM.  IT DOES NOT FOLLOW THAT THE CONSTITUTION REQUIRES
ABSOLUTE FREEDOM TO EXHIBIT EVERY MOTION PICTURE OF EVERY KIND AT ALL
TIMES AND ALL PLACES.'  (BURSTYN V. WILSON, 343 U.S. 495, AT 502). 

"SO LONG AS THE STATE HAS THE RESPONSIBILITY FOR INTERDICTING MOTION
PICTURES WHICH TRANSGRESS THE BOUNDS OF DECENCY, WE HAVE THE
RESPONSIBILITY FOR FURNISHING GUIDE LINES TO THE AGENCY CHARGED WITH
ENFORCING THE LAW."  ID., AT 408. 

FN4  CERTAINLY IT CANNOT BE CLAIMED THAT ADULTERY IS NOT A FORM OF
"SEXUAL IMMORALITY"; INDEED ADULTERY IS MADE A CRIME IN NEW YORK.  N.Y.
PENAL LAW SECS. 100-103, 39 N.Y. LAWS ANN. SECS. 100-103 (MCKINNEY
1944). 

FN5  NOTHING IN JUDGE DYE'S DISSENTING OPINION, TO WHICH THE COURT
REFERS IN NOTE 7 OF ITS OPINION, CAN BE TAKEN AS MILITATING AGAINST
THIS VIEW OF THE PREVAILING OPINIONS IN THE COURT OF APPEALS.  JUDGE
DYE SIMPLY DISAGREED WITH THE MAJORITY OF THE COURT OF APPEALS AS TO
THE ADEQUACY OF THE SEC. 122-A DEFINITION OF "IMMORAL" TO OVERCOME
PRIOR CONSTITUTIONAL OBJECTIONS TO THAT TERM.  SEE 4 N.Y.2D, AT 371,
151 N.E.2D, AT 209-210, 175 N.Y.S.2D, AT 57; SEE ALSO THE DISSENTING
OPINION OF JUDGE VAN VOORHIS, 4 N.Y.2D, AT 374, 151 N.E.2D, AT 212, 175
N.Y.S.2D, AT 60. 
..END :



















TAYLOR V. MCELROY 360 U.S. 709 


NO. 504.  ARGUED MARCH 31-APRIL 1, 1959.  - DECIDED JUNE 29, 1959.  -
JUDGEMENT VACATED AND CAUSE REMANDED. 


PETITIONER, A LATHE OPERATOR AND TOOL AND DIE MAKER AT A PLANT WHICH
MANUFACTURED AIRCRAFT FOR THE GOVERNMENT, LOST HIS JOB BECAUSE OF
REVOCATION OF HIS SECURITY CLEARANCE IN PROCEEDINGS SIMILAR TO THOSE
INVOLVED IN GREENE V. MCELROY, ANTE, P. 474.  AFTER THIS COURT HAD
GRANTED CERTIORARI TO REVIEW A JUDGMENT SUSTAINING THAT ACTION, HIS
SECURITY CLEARANCE WAS RESTORED AND THE SOLICITOR GENERAL ASSURED THIS
COURT THAT PETITIONER NOW STANDS IN PRECISELY THE SAME POSITION AS ALL
OTHERS WHO HAVE BEEN GRANTED CLEARANCE, THAT THE EVIDENCE IN
PETITIONER'S FILE WILL NOT BE USED AGAINST HIM IN THE FUTURE, AND THAT
THE FINDINGS AGAINST PETITIONER HAVE BEEN EXPUNGED.  HELD:  THE CAUSE
IS MOOT; AND THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE
CAUSE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE
COMPLAINT AS MOOT.  PP. 709-711. 

TAYLOR V. MCELROY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THIS IS A COMPANION CASE TO GREENE V. MCELROY, ANTE, P. 474, DECIDED
TODAY, AND CONCERNS AN INDUSTRIAL WORKER WHO WAS DENIED CLEARANCE TO
CLASSIFIED DEFENSE INFORMATION AND CONSEQUENTLY DISCHARGED FROM HIS
EMPLOYMENT AS A LATHE OPERATOR AND TOOL AND DIE MAKER AT A PLANT WHICH
MANUFACTURED AIRCRAFT FOR THE GOVERNMENT. 

PRIOR TO 1956, PETITIONER HAD A CONFIDENTIAL CLEARANCE.  IN THAT
YEAR, HE WAS DENIED SECRET CLEARANCE AND HIS CONFIDENTIAL CLEARANCE WAS
SUSPENDED.  HE DEMANDED AND WAS ACCORDED A HEARING SIMILAR TO THE ONE
AFFORDED PETITIONER IN GREENE V. MCELROY, SUPRA.  THE HEARING BOARD
CONCLUDED THAT PETITIONER'S ACCESS TO CLASSIFIED DEFENSE INFORMATION
WAS "NOT CLEARLY CONSISTENT WITH THE INTERESTS OF NATIONAL SECURITY." 
LATER, HE WAS AFFORDED ANOTHER HEARING WITH SIMILAR RESULTS. 
PETITIONER THEN FILED AN ACTION ASKING FOR A DECLARATION THAT HE WAS
ENTITLED TO A HEARING AT WHICH HE COULD CONFRONT THE INFORMANTS WHOSE
STATEMENTS WERE USED AGAINST HIM, A DECLARATION THAT THE DENIAL OF
CLEARANCE VIOLATED HIS RIGHTS UNDER THE FIFTH AMENDMENT, AND AN
INJUNCTION RESTRAINING RESPONDENTS FROM ENFORCING THE DECISION DENYING
CLEARANCE.  RESPONDENTS PREVAILED ON A MOTION FOR SUMMARY JUDGMENT AND,
ON DECEMBER 15, 1958, WE GRANTED CERTIORARI TO THE COURT OF APPEALS
BEFORE ARGUMENT WAS HAD IN THAT COURT BECAUSE OF THE PENDENCY HERE OF
GREENE V. MCELROY, SUPRA.  358 U.S. 918. 

ON DECEMBER 31, 1958, THE DEPARTMENT OF DEFENSE NOTIFIED ALL
INTERESTED PARTIES, INCLUDING PETITIONER, HIS COUNSEL, AND HIS EX
EMPLOYER, THAT THE SECRETARY OF DEFENSE HAD DETERMINED "THAT THE
GRANTING OF CLEARANCE TO MR. CHARLES ALLEN TAYLOR FOR ACCESS TO SECRET
DEFENSE INFORMATION IS IN THE NATIONAL INTEREST."  ON JANUARY 9, 1959,
RESPONDENTS FILED A SUGGESTION OF MOOTNESS.  WE POSTPONED CONSIDERATION
OF THAT QUESTION TO THE HEARING OF THE CASE ON THE MERITS.  359 U.S.
901. 

AT THE ORAL ARGUMENT IN THIS CASE, THE SOLICITOR GENERAL MADE THE
FOLLOWING REPRESENTATIONS: 

1.  THE SECRETARY OF DEFENSE IN DETERMINING THAT PEITIONER WAS
ELIGIBLE FOR CLEARANCE TO OBTAIN ACCESS TO INFORMATION CLASSIFIED
"SECRET" DID NOT INTEND BY HIS REFERENCE TO "THE NATIONAL INTEREST" TO
DIFFERENTIATE BETWEEN PETITIONER'S STATUS AND THAT OF OTHER EMPLOYEES
WHOSE ELIGIBILITY FOR CLEARANCE HAS BEEN FOUND TO BE "CLEARLY
CONSISTENT WITH THE INTERESTS OF NATIONAL SECURITY."* 

*THE RESPONDENTS HAVE FILED A LETTER IN THIS COURT FROM THE GENERAL
COUNSEL OF THE DEPARTMENT OF DEFENSE WHICH MAKES AN IDENTICAL
REPRESENTATION. 

2.  THE FINDINGS OF THE VARIOUS HEARING BOARDS WHICH PASSED ON
PETITIONER'S FITNESS FOR CLEARANCE HAVE BEEN EXPUNGED FROM ALL RECORDS
AND NO LONGER HAVE ANY VITALITY OR EFFECT. 

3.  PETITIONER WAS AFFORDED CLEARANCE ON DECEMBER 31, 1958, AFTER
HAVING BEEN DENIED CLEARANCE FOR OVER TWO YEARS, BECAUSE OF A CHANGE IN
APPLICABLE DEPARTMENT OF DEFENSE REGULATIONS. 

4.  PURSUANT TO EXISTING DEPARTMENT OF DEFENSE PROCEDURES, THE
EVIDENCE IN PETITIONER'S FILE WILL NOT BE USED AGAIN AS A BASIS FOR
REVOKING PETITIONER'S CLEARANCE. 

5.  PETITIONER IS ELIGIBLE UNDER APPLICABLE REGULATIONS FOR
COMPENSATION FOR WAGES LOST DURING THE TIME HE WAS UNEMPLOYED DUE TO
THE CLEARANCE REVOCATION AND DENIAL. 

IN VIEW OF THE FACT THAT PETITIONER HAS RECEIVED CLEARANCE, THE
ULTIMATE RELIEF WHICH HE DEMANDED, AND IN VIEW OF THE REPRESENTATIONS
OF THE SOLICITOR GENERAL TO THE EFFECT THAT PETITIONER STANDS IN
PRECISELY THE SAME POSITION AS ALL OTHERS WHO HAVE BEEN GRANTED
CLEARANCE, THAT THE EVIDENCE IN PETITIONER'S FILE WILL NOT BE USED
AGAINST HIM IN THE FUTURE, AND THAT THE FINDINGS AGAINST PETITIONER
HAVE BEEN EXPUNGED, THIS CASE IS MOOT. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE IS
REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE COMPLAINT AS
MOOT.  IT IS SO ORDERED. 
..END :


















ILLINOIS V. MICHIGAN 360 U.S. 712 


NO. 15, ORIGINAL.  ARGUED MAY 21-22, 1959.  - DECIDED JUNE 29, 1959. 


APPLICATION FOR REOPENING OF DECREE OF APRIL 21, 1930, IN NOS. 2, 3
AND 4, ORIGINAL, GRANTED; MOTION FOR LEAVE TO FILE BILL OF COMPLAINT IN
NO. 15, ORIGINAL, GRANTED; SPECIAL MASTER APPOINTED IN EACH OF THESE
CASES. 

ILLINOIS V. MICHIGAN ET AL. 

ON MOTION FOR LEAVE TO FILE COMPLAINT.* 

*TOGETHER WITH NO. 2, ORIGINAL, WISCONSIN ET AL. V. ILLINOIS ET AL.;
NO. 3, ORIGINAL, MICHIGAN V. ILLINOIS ET AL.; AND NO. 4, ORIGINAL, NEW
YORK V. ILLINOIS ET AL., ON APPLICATION FOR REOPENING OF THE DECREE OF
APRIL 21, 1930 - NOT ARGUED. 

PER CURIAM. 

THE MOTION OF CHICAGO ASSOCIATION OF COMMERCE AND INDUSTRY FOR LEAVE
TO FILE BRIEF IN NOS.  2, ORIGINAL, 3, ORIGINAL AND 4, ORIGINAL, AS
AMICUS CURIAE, IS GRANTED.  THE AMENDED APPLICATION OF COMPLAINANTS FOR
A REOPENING OF THE DECREE OF APRIL 21, 1930, IN NOS. 2, ORIGINAL, 3,
ORIGINAL, AND 4, ORIGINAL (281 U.S. 696), IS GRANTED. 

THE MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT IN NO. 15, ORIGINAL,
IS GRANTED. 

IT IS ORDERED THAT HONORABLE ALBERT B. MARIS, UNITED STATES SENIOR
CIRCUIT JUDGE, BE, AND HE IS HEREBY, APPOINTED SPECIAL MASTER IN EACH
OF THESE CAUSES, WITH AUTHORITY TO SUMMON WITNESSES, ISSUE SUBPOENAS,
AND TAKE SUCH EVIDENCE AS MAY BE INTRODUCED AND SUCH AS HE MAY DEEM IT
NECESSARY TO CALL FOR.  THE MASTER IS DIRECTED TO HOLD HEARINGS WITH
ALL CONVENIENT SPEED, AND TO SUBMIT SUCH REPORTS AS HE MAY DEEM
NECESSARY. 

THE MASTER SHALL BE ALLOWED HIS ACTUAL EXPENSES.  THE ALLOWANCES TO
HIM, THE COMPENSATION PAID TO HIS TECHNICAL, STENOGRAPHIC AND CLERICAL
ASSISTANTS, THE COST OF PRINTING HIS REPORT, AND ALL OTHER PROPER
EXPENSES, SHALL BE CHARGED AGAINST AND BE BORNE BY THE PARTIES IN SUCH
PROPORTION AS THE COURT HEREAFTER MAY DIRECT. 
..END :









UNITED STATES V. HINE PONTIAC 360 U.S. 715 


NO. 561.  DECIDED JUNE 29, 1959.  - CERTIORARI GRANTED AND JUDGMENTS
REVERSED. 


UNITED STATES ET AL. V. HINE PONTIAC ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENTS OF THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ARE REVERSED. 
COMMISSIONER OF INTERNAL REVENUE V. HANSEN, ANTE, P. 446; COMMISSIONER
OF INTERNAL REVENUE V. GLOVER, ANTE, P. 446; BAIRD V. COMMISSIONER OF
INTERNAL REVENUE, ANTE, P. 446. 
..END :













UNITED STATES V. COLONIAL CHEVROLET CORP. 360 U.S. 716 


NO. 761.  DECIDED JUNE 29, 1959.  - CERTIORARI GRANTED AND JUDGMENTS
REVERSED. 


UNITED STATES V. COLONIAL CHEVROLET CORP. ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENTS OF THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ARE REVERSED. 
COMMISSIONER OF INTERNAL REVENUE V. HANSEN, ANTE, P. 446; COMMISSIONER
OF INTERNAL REVENUE V. GLOVER, ANTE, P. 446; BAIRD V. COMMISSIONER OF
INTERNAL REVENUE, ANTE, P. 446. 
..END :













KELLEY V. CITY OF RICHMOND 360 U.S. 716 


NO. 858, MISC.  DECIDED JUNE 29, 1959. 


KELLEY V. CITY OF RICHMOND. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :



















HERSHEY MANUFACTURING CO. V. ADAMOWSKI 360 U.S. 717 


NO. 944.  DECIDED JUNE 29, 1959.  - JUDGMENT AFFIRMED. 


HERSHEY MANUFACTURING CO. V. ADAMOWSKI ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  ALTHOUGH THE DISTRICT COURT HAD
JURISDICTION, DOUD V. HODGE, 350 U.S. 485, WE ACCEPT ITS FINDING THAT
THERE WAS NO SHOWING OF IRREPARABLE INJURY. 
..END :
















DEGREGORY V. WYMAN 360 U.S. 717 


NO. 7, MISC.  DECIDED JUNE 29, 1959.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS WOULD
NOTE PROBABLE JURISDICTION.  DEGREGORY V. WYMAN, ATTORNEY GENERAL OF
NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















SPANO V. NEW YORK 360 U.S. 315 


NO. 582.  ARGUED APRIL 27, 1959.  - DECIDED JUNE 22, 1959.  - 4 N.Y.2D
256, 173 N.Y.S.2D 793, 150 N.E.2D 226, REVERSED. 


AFTER PETITIONER, A FOREIGN-BORN YOUNG MAN OF 25 WITH A JUNIOR-HIGH
SCHOOL EDUCATION AND NO PREVIOUS CRIMINAL RECORD, HAD BEEN INDICTED FOR
FIRST-DEGREE MURDER, HE RETAINED COUNSEL AND SURRENDERED TO POLICE AT
7:10 P.M.  HE WAS THEN SUBJECTED TO PERSISTENT AND CONTINUOUS
QUESTIONING BY AN ASSISTANT PROSECUTOR AND NUMEROUS POLICE OFFICERS FOR
VIRTUALLY EIGHT HOURS UNTIL HE CONFESSED, AFTER HE HAD REPEATEDLY
REQUESTED, AND HAD BEEN DENIED, AN OPPORTUNITY TO CONSULT HIS COUNSEL. 
AT HIS TRIAL IN A STATE COURT, HIS CONFESSION WAS ADMITTED IN EVIDENCE
OVER HIS OBJECTION, AND HE WAS CONVICTED AND SENTENCED TO DEATH.  HELD:
ON THE RECORD IN THIS CASE, PETITIONER'S WILL WAS OVERBORNE BY
OFFICIAL PRESSURE, FATIGUE AND SYMPATHY FALSELY AROUSED; HIS CONFESSION
WAS NOT VOLUNTARY; AND ITS ADMISSION IN EVIDENCE VIOLATED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 315-324. 

SPANO V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS ANOTHER IN THE LONG LINE OF CASES PRESENTING THE QUESTION
WHETHER A CONFESSION WAS PROPERLY ADMITTED INTO EVIDENCE UNDER THE
FOURTEENTH AMENDMENT.  AS IN ALL SUCH CASES, WE ARE FORCED TO RESOLVE A
CONFLICT BETWEEN TWO FUNDAMENTAL INTERESTS OF SOCIETY; ITS INTEREST IN
PROMPT AND EFFICIENT LAW ENFORCEMENT, AND ITS INTEREST IN PREVENTING
THE RIGHTS OF ITS INDIVIDUAL MEMBERS FROM BEING ABRIDGED BY
UNCONSTITUTIONAL METHODS OF LAW ENFORCEMENT.  BECAUSE OF THE DELICATE
NATURE OF THE CONSTITUTIONAL DETERMINATION WHICH WE MUST MAKE, WE
CANNOT ESCAPE THE RESPONSIBILITY OF MAKING OUR OWN EXAMINATION OF THE
RECORD.  NORRIS V. ALABAMA, 294 U.S. 587. 

THE STATE'S EVIDENCE REVEALS THE FOLLOWING:  PETITIONER VINCENT
JOSEPH SPANO IS A DERIVATIVE CITIZEN OF THIS COUNTRY, HAVING BEEN BORN
IN MESSINA, ITALY.  HE WAS 25 YEARS OLD AT THE TIME OF THE SHOOTING IN
QUESTION AND HAD GRADUATED FROM JUNIOR HIGH SCHOOL.  HE HAD A RECORD OF
REGULAR EMPLOYMENT.  THE SHOOTING TOOK PLACE ON JANUARY 22, 1957. 

ON THAT DAY, PETITIONER WAS DRINKING IN A BAR.  THE DECEDENT, A
FORMER PROFESSIONAL BOXER WEIGHING ALMOST 200 POUNDS WHO HAD FOUGHT IN
MADISON SQUARE GARDEN, TOOK SOME OF PETITIONER'S MONEY FROM THE BAR. 
PETITIONER FOLLOWED HIM OUT OF THE BAR TO RECOVER IT.  A FIGHT ENSUED,
WITH THE DECEDENT KNOCKING PETITIONER DOWN AND THEN KICKING HIM IN THE
HEAD THREE OR FOUR TIMES.  SHOCK FROM THE FORCE OF THESE BLOWS CAUSED
PETITIONER TO VOMIT.  AFTER THE BARTENDER APPLIED SOME ICE TO HIS HEAD,
PETITIONER LEFT THE BAR, WALKED TO HIS APARTMENT, SECURED A GUN, AND
WALKED EIGHT OR NINE BLOCKS TO A CANDY STORE WHERE THE DECEDENT WAS
FREQUENTLY TO BE FOUND.  HE ENTERED THE STORE IN WHICH DECEDENT, THREE
FRIENDS OF DECEDENT, AT LEAST TWO OF WHOM WERE EX-CONVICTS, AND A BOY
WHO WAS SUPERVISING THE STORE WAS PRESENT.  HE FIRED FIVE SHOTS, TWO OF
WHICH ENTERED THE DECEDENT'S BODY, CAUSING HIS DEATH.  THE BOY WAS THE
ONLY EYEWITNESS; THE THREE FRIENDS OF DECEDENT DID NOT SEE THE PERSON
WHO FIRED THE SHOT.  PETITIONER THEN DISAPPEARED FOR THE NEXT WEEK OR
SO. 

ON FEBRUARY 1, 1957, THE BRONX COUNTY GRAND JURY RETURNED AN
INDICTMENT FOR FIRST-DEGREE MURDER AGAINST PETITIONER.  ACCORDINGLY, A
BENCH WARRANT WAS ISSUED FOR HIS ARREST, COMMANDING THAT HE BE
FORTHWITH BROUGHT BEFORE THE COURT TO ANSWER THE INDICTMENT, OR, IF THE
COURT HAD ADJOURNED FOR THE TERM, THAT HE BE DELIVERED INTO THE CUSTODY
OF THE SHERIFF OF BRONX COUNTY.  SEE N.Y. CODE CRIM. PROC. SEC. 301. 

ON FEBRUARY 3, 1957, PETITIONER CALLED ONE GASPAR BRUNO, A CLOSE
FRIEND OF 8 OR 10 YEARS' STANDING WHO HAD ATTENDED SCHOOL WITH HIM. 
BRUNO WAS A FLEDGLING POLICE OFFICER, HAVING AT THAT TIME NOT YET
FINISHED ATTENDING POLICE ACADEMY.  ACCORDING TO BRUNO'S TESTIMONY,
PETITIONER TOLD HIM "THAT HE TOOK A TERRIFIC BEATING, THAT THE DECEASED
HURT HIM REAL BAD AND HE DROPPED HIM A COUPLE OF TIMES AND HE WAS
DAZED; HE DIDN'T KNOW WHAT HE WAS DOING AND THAT HE WENT AND SHOT AT
HIM."  PETITIONER TOLD BRUNO THAT HE INTENDED TO GET A LAWYER AND GIVE
HIMSELF UP.  BRUNO RELAYED THIS INFORMATION TO HIS SUPERIORS. 

THE FOLLOWING DAY, FEBRUARY 4, AT 7:10 P.M., PETITIONER, ACCOMPANIED
BY COUNSEL, SURRENDERED HIMSELF TO THE AUTHORITIES IN FRONT OF THE
BRONX COUNTY BUILDING, WHERE BOTH THE OFFICE OF THE ASSISTANT DISTRICT
ATTORNEY WHO ULTIMATELY PROSECUTED HIS CASE AND THE COURTROOM IN WHICH
HE WAS ULTIMATELY TRIED WERE LOCATED.  HIS ATTORNEY HAD CAUTIONED HIM
TO ANSWER NO QUESTION, AND LEFT HIM IN THE CUSTODY OF THE OFFICERS.  HE
WAS PROMPTLY TAKEN TO THE OFFICE OF THE ASSISTANT DISTRICT ATTORNEY AND
AT 7:15 P.M. THE QUESTIONING BEGAN, BEING CONDUCTED BY ASSISTANT
DISTRICT ATTORNEY GOLDSMITH, LT. GANNON, DETECTIVES FARRELL, LEHRER AND
MOTTA, AND SGT. CLARKE.  THE RECORD REVEALS THAT THE QUESTIONING WAS
BOTH PERSISTENT AND CONTINUOUS.  PETITIONER, IN ACCORDANCE WITH HIS
ATTORNEY'S INSTRUCTIONS, STEADFASTLY REFUSED TO ANSWER.  DETECTIVE
MOTTA TESTIFIED:  "HE REFUSED TO TALK TO ME."  "HE JUST LOOKED UP TO
THE CEILING AND REFUSED TO TALK TO ME."  DETECTIVE FARRELL TESTIFIED: 

"Q.  AND YOU STARTED TO INTERROGATE HIM? 

"A.  THAT IS RIGHT. 

     *      *         *         *         * 

"Q.  WHAT DID HE SAY? 

"A.  HE SAID 'YOU WOULD HAVE TO SEE MY ATTORNEY.  I TELL YOU NOTHING
BUT MY NAME.' 

     *         *         *   *         * 

"Q.  DID YOU CONTINUE TO EXAMINE HIM? 

"A.  VERBALLY, YES, SIR." 

HE ASKED ONE OFFICER, DETECTIVE CICCONE, IF HE COULD SPEAK TO HIS
ATTORNEY, BUT THAT REQUEST WAS DENIED.  DETECTIVE CICCONE TESTIFED THAT
HE COULD NOT FIND THE ATTORNEY'S NAME IN THE TELEPHONE BOOK.  (FN1)  HE
WAS GIVEN TWO SANDWICHES, COFFEE AND CAKE AT 11 P.M. 

AT 12:15 A.M. ON THE MORNING OF FEBRUARY 5, AFTER FIVE HOURS OF
QUESTIONING IN WHICH IT BECAME EVIDENT THAT PETITIONER WAS FOLLOWING
HIS ATTORNEY'S INSTRUCTIONS, ON THE ASSISTANT DISTRICT ATTORNEY'S
ORDERS PETITIONER WAS TRANSFERRED TO THE 46TH SQUAD, RYER AVENUE POLICE
STATION.  THE ASSISTANT DISTRICT ATTORNEY ALSO WENT TO THE POLICE
STATION AND TO SOME EXTENT CONTINUED TO PARTICIPATE IN THE
INTERROGATION.  PETITIONER ARRIVED AT 12:30 AND QUESTIONING WAS RESUMED
AT 12:40.   THE CHARACTER OF THE QUESTIONING IS REVEALED BY THE
TESTIMONY OF DETECTIVE FARRELL: 

"Q.  WHO DID YOU LEAVE HIM IN THE ROOM WITH? 

"A.  WITH DETECTIVE LEHRER AND SERGEANT CLARKE CAME IN AND MR.
GOLDSMITH CAME IN OR INSPECTOR HALK CAME IN.  IT WAS BACK AND FORTH. 
PEOPLE JUST CAME IN, SPOKE A FEW WORDS TO THE DEFENDANT OR THEY
LISTENED A FEW MINUTES AND THEY LEFT." 

BUT PETITIONER PERSISTED IN HIS REFUSAL TO ANSWER, AND AGAIN
REQUESTED PERMISSION TO SEE HIS ATTORNEY, THIS TIME FROM DETECTIVE
LEHRER.  HIS REQUEST WAS AGAIN DENIED. 

IT WAS THEN THAT THOSE IN CHARGE OF THE INVESTIGATION DECIDED THAT
PETITIONER'S CLOSE FRIEND, BRUNO, COULD BE OF USE.  HE HAD BEEN CALLED
OUT ON THE CASE AROUND 10 OR 11 P.M., ALTHOUGH HE WAS NOT CONNECTED
WITH THE 46TH SQUAD OR PRECINCT IN ANY WAY.  ALTHOUGH, IN FACT, HIS JOB
WAS IN NO WAY THREATENED, BRUNO WAS TOLD TO TELL PETITIONER THAT
PETITIONER'S TELEPHONE CALL HAD GOTTEN HIM "IN A LOT OF TROUBLE," AND
THAT HE SHOULD SEEK TO EXTRACT SYMPATHY FROM PETITIONER FOR BRUNO'S
PREGNANT WIFE AND THREE CHILDREN.  BRUNO DEVELOPED THIS THEME WITH
PETITIONER WITHOUT SUCCESS, AND PETITIONER, ALSO WITHOUT SUCCESS, AGAIN
SOUGHT TO SEE HIS ATTORNEY, A REQUEST WHICH BRUNO RELAYED UNAVAILINGLY
TO HIS SUPERIORS.  AFTER THIS FIRST SESSION WITH PETITIONER, BRUNO WAS
AGAIN DIRECTED BY LT. GANNON TO PLAY ON PETITIONER'S SYMPATHIES, BUT
AGAIN NO CONFESSION WAS FORTHCOMING.  BUT THE LIEUTENANT A THIRD TIME
ORDERED BRUNO FALSELY TO IMPORTUNE HIS FRIEND TO CONFESS, BUT AGAIN
PETITIONER CLUNG TO HIS ATTORNEY'S ADVICE.  INEVITABLY, IN THE FOURTH
SUCH SESSION DIRECTED BY THE LIEUTENANT, LASTING A FULL HOUR,
PETITIONER SUCCUMBED TO HIS FRIEND'S PREVARICATIONS AND AGREED TO MAKE
A STATEMENT.  ACCORDINGLY, AT 3:25 A.M. THE ASSISTANT DISTRICT
ATTORNEY, A STENOGRAPHER, AND SEVERAL OTHER LAW ENFORCEMENT OFFICIALS
ENTERED THE ROOM WHERE PETITIONER WAS BEING QUESTIONED, AND TOOK HIS
STATEMENT IN QUESTION AND ANSWER FORM WITH THE ASSISTANT DISTRICT
ATTORNEY ASKING THE QUESTIONS.  THE STATEMENT WAS COMPLETED AT 4:05
A.M. 

BUT THIS WAS NOT THE END.  AT 4:30 A.M. THREE DETECTIVES TOOK
PETITIONER TO POLICE HEADQUARTERS IN MANHATTAN.  ON THE WAY THEY
ATTEMPTED TO FIND THE BRIDGE FROM WHICH PETITIONER SAID HE HAD THROWN
THE MURDER WEAPON.  THEY CROSSED THE TRIBOROUGH BRIDGE IN MANHATTAN,
ARRIVING AT POLICE HEADQUARTERS AT 5 A.M., AND LEFT MANHATTAN FOR THE
BRONX AT 5:40 A.M. VIA THE WILLIS AVENUE BRIDGE.  WHEN PETITIONER
RECOGNIZED NEITHER BRIDGE AS THE ONE FROM WHICH HE HAD THROWN THE
WEAPON, THEY REENTERED MANHATTAN VIA THE THIRD AVENUE BRIDGE, WHICH
PETITIONER STATED WAS THE RIGHT ONE, AND THEN RETURNED TO THE BRONX
WELL AFTER 6 A.M.  DURING THAT TRIP THE OFFICERS ALSO ELICITED A
STATEMENT FROM PETITIONER THAT THE DECEASED WAS ALWAYS "ON HIS BACK,"
"ALWAYS PUSHING" HIM AND THAT HE WAS "NOT SORRY" HE HAD SHOT THE
DECEASED.  ALL THREE DETECTIVES TESTIFIED TO THAT STATEMENT AT THE
TRIAL. 

COURT OPENED AT 10 A.M. THAT MORNING, AND PETITIONER WAS ARRAIGNED AT
10:15. 

AT THE TRIAL, THE CONFESSION WAS INTRODUCED IN EVIDENCE OVER
APPROPRIATE OBJECTIONS.  THE JURY WAS INSTRUCTED THAT IT COULD RELY ON
IT ONLY IF IT WAS FOUND TO BE VOLUNTARY.  THE JURY RETURNED A GUILTY
VERDICT AND PETITIONER WAS SENTENCED TO DEATH.  THE NEW YORK COURT OF
APPEALS AFFIRMED THE CONVICTION OVER THREE DISSENTS, 4 N.Y.2D 256, 173
N.Y.S.2D 793, 150 N.E.2D 226, AND WE GRANTED CERTIORARI TO RESOLVE THE
SERIOUS PROBLEM PRESENTED UNDER THE FOURTEENTH AMENDMENT.  358 U.S.
919. 

PETITIONER'S FIRST CONTENTION IS THAT HIS ABSOLUTE RIGHT TO COUNSEL
IN A CAPITAL CASE, POWELL V. ALABAMA, 287 U.S. 45, BECAME OPERATIVE ON
THE RETURN OF AN INDICTMENT AGAINST HIM, FOR AT THAT TIME HE WAS IN
EVERY SENSE A DEFENDANT IN A CRIMINAL CASE, THE GRAND JURY HAVING FOUND
SUFFICIENT CAUSE TO BELIEVE THAT HE HAD COMMITTED THE CRIME.  HE ARGUES
ACCRODINGLY THAT FOLLOWING INDICTMENT NO CONFESSION OBTAINED IN THE
ABSENCE OF COUNSEL CAN BE USED WITHOUT VIOLATING THE FOURTEENTH
AMENDMENT.  HE SEEKS TO DISTINGUISH CROOKER V. CALIFORNIA, 357 U.S.
433, AND CICENIA V. LAGAY, 357 U.S. 504, ON THE GROUND THAT IN THOSE
CASES NO INDICTMENT HAD BEEN RETURNED.  WE FIND IT UNNECESSARY TO REACH
THAT CONTENTION, FOR WE FIND USE OF THE CONFESSION OBTAINED HERE
INCONSISTENT WITH THE FOURTEENTH AMENDMENT UNDER TRADITIONAL
PRINCIPLES. 

THE ABHORRENCE OF SOCIETY TO THE USE OF INVOLUNTARY CONFESSION DOES
NOT TURN ALONE ON THEIR INHERENT UNTRUSTWORTHINESS.  IT ALSO TURNS ON
THE DEEP-ROOTED FEELING THAT THE POLICE MUST OBEY THE LAW WHILE
ENFORCING THE LAW; THAT IN THE END LIFE AND LIBERTY CAN BE AS MUCH
ENDANGERED FROM ILLEGAL METHODS USED TO CONVICT THOSE THOUGHT TO BE
CRIMINALS AS FROM THE ACTUAL CRIMINALS THEMSELVES.  ACCORDINGLY, THE
ACTIONS OF THE POLICE IN OBTAINING CONFESSIONS HAVE COME UNDER SCRUTINY
IN A LONG SERIES OF CASES.  (FN2)  THOSE CASES SUGGEST THAT IN RECENT
YEARS LAW ENFORCEMENT OFFICIALS HAVE BECOME INCREASINGLY AWARE OF THE
BURDEN WHICH THEY SHARE, ALONG WITH OUR COURTS, IN PROTECTING
FUNDAMENTAL RIGHTS OF OUR CITZENRY, INCLUDING THAT PORTION OF OUR
CITIZENRY SUSPECTED OF CRIME.  THE FACTS OF NO CASE RECENTLY IN THIS
COURT HAVE QUITE APPROACHED THE BRUTAL BEATINGS IN BROWN V.
MISSISSIPPI, 297 U.S. 278 (1936), OR THE 36 CONSECUTIVE HOURS OF
QUESTIONING PRESENT IN ASHCRAFT V. TENNESSEE, 322 U.S. 143 (1944).  BUT
AS LAW ENFORCEMENT OFFICERS BECOME MORE RESPONSIBLE, AND THE METHODS
USED TO EXTRACT CONFESSIONS MORE SOPHISTICATED, OUR DUTY TO ENFORCE
FEDERAL CONSTITUTIONAL PROTECTIONS DOES NOT CEASE.  IT ONLY BECOMES
MORE DIFFICULT BECAUSE OF THE MORE DELICATE JUDGMENTS TO BE MADE.  OUR
JUDGMENT HERE IS THAT, ON ALL THE FACTS, THIS CONVICTION CANNOT STAND. 

PETITIONER WAS A FOREIGN-BORN YOUNG MAN OF 25 WITH NO PAST HISTORY OF
LAW VIOLATION OR OF SUBJECTION TO OFFICIAL INTERROGATION, AT LEAST
INSOFAR AS THE RECORD SHOWS.  HE HAD PROGRESSED ONLY ONE-HALF YEAR INTO
HIGH SCHOOL AND THE RECORD INDICATES THAT HE HAD A HISTORY OF EMOTIONAL
INSTABILITY.  (FN3)  HE DID NOT MAKE A NARRATIVE STATEMENT, BUT WAS
SUBJECT TO THE LEADING QUESTIONS OF A SKILLFUL PROSECUTOR IN A QUESTION
AND ANSWER CONFESSION.  HE WAS SUBJECTED TO QUESTIONING NOT BY A FEW
MEN, BUT BY MANY.  THEY INCLUDED ASSISTANT DISTRICT ATTORNEY GOLDSMITH,
ONE HYLAND OF THE DISTRICT ATTORNEY'S OFFICE, DEPUTY INSPECTOR HALKS,
(FN4) LIEUTENANT GANNON, DETECTIVE CICCONE, DETECTIVE MOTTA, DETECTIVE
LEHRER, DETECTIVE MARSHAL, DETECTIVE FARRELL, DETECTIVE LEIRA, (FN5)
DETECTIVE MURPHY, DETECTIVE MURTHA, SERGEANT CLARKE, PATROLMAN BRUNO
AND STENOGRAPHER BALDWIN.  ALL PLAYED SOME PART, AND THE EFFECT OF SUCH
MASSIVE OFFICIAL INTERROGATION MUST HAVE BEEN FELT.  PETITIONER WAS
QUESTIONED FOR VIRTUALLY EIGHT STRAIGHT HOURS BEFORE HE CONFESSED, WITH
HIS ONLY RESPITE BEING A TRANSFER TO AN ARENA PRESUMABLY CONSIDERED
MORE APPROPRIATE BY THE POLICE FOR THE TASK AT HAND.  NOR WAS THE
QUESTIONING CONDUCTED DURING NORMAL BUSINESS HOURS, BUT BEGAN IN EARLY
EVENING, CONTINUED INTO THE NIGHT, AND DID NOT BEAR FRUITION UNTIL THE
NOT-TOO-EARLY MORNING.  THE DRAMA WAS NOT PLAYED OUT, WITH THE FINAL
ADMISSIONS OBTAINED, UNTIL ALMOST SUNRISE.  IN SUCH CIRCUMSTANCES
SLOWLY MOUNTING FATIGUE DOES, AND IS CALCULATED TO, PLAY ITS PART.  THE
QUESTIONERS PERSISTED IN THE FACE OF HIS REPEATED REFUSALS TO ANSWER ON
THE ADVICE OF HIS ATTORNEY, AND THEY IGNORED HIS REASONABLE REQUESTS TO
CONTRACT THE LOCAL ATTORNEY WHOM HE HAD ALREADY RETAINED AND WHO HAD
PERSONALLY DELIVERED HIM INTO THE CUSTODY OF THESE OFFICERS IN
OBEDIENCE TO THE BENCH WARRANT. 

THE USE OF BRUNO, CHARACTERIZED IN THIS COURT BY COUNSEL FOR THE
STATE AS A "CHILDHOOD FRIEND" OF PETITIONER'S, IS ANOTHER FACTOR WHICH
DESERVES MENTION IN THE TOTALITY OF THE SITUATION.  BRUNO'S WAS THE ONE
FACT VISIBLE TO PETITIONER IN WHICH HE COULD PUT SOME TRUST.  THERE WAS
A BOND OF FRIENDSHIP BETWEEN THEM GOING BACK A DECADE INTO
ADOLESCENCE.  IT WAS WITH THIS MATERIAL THAT THE OFFICERS FELT THAT
THEY COULD OVERCOME PETITIONER'S WILL.  THEY INSTRUCTED BRUNO FALSELY
TO STATE THAT PETITIONER'S TELEPHONE CALL HAD GOTTEN HIM INTO TROUBLE,
THAT HIS JOB WAS IN JEOPARDY, AND THAT LOSS OF HIS JOB WOULD BE
DISASTROUS TO HIS THREE CHILDREN, HIS WIFE AND HIS UNBORN CHILD.  AND
BRUNO PLAYED THIS PART OF A WORRIED FATHER, HARRIED BY HIS SUPERIORS,
IN NOT ONE, BUT FOUR DIFFERENT ACTS, THE FINAL ONE LASTING AN HOUR. 
CF. LEYRA V. DENNO, 347 U.S. 556.  PETITIONER WAS APPARENTLY UNAWARE OF
JOHN GAY'S FAMOUS COUPLET:                               "AN OPEN FOE
MAY PROVE A CURSE,                             BUT A PRETENDED FRIEND
IS WORSE," AND HE YIELDED TO HIS FALSE FRIEND'S ENTREATIES. 

WE CONCLUDE THAT PETITIONER'S WILL WAS OVERBORNE BY OFFICIAL
PRESSURE, FATIGUE AND SYMPATHY FALSELY AROUSED, AFTER CONSIDERING ALL
THE FACTS IN THEIR POST-INDICTMENT SETTING.  (FN6)  HERE A GRAND JURY
HAD ALREADY FOUND SUFFICIENT CAUSE TO REQUIRE PETITIONER TO FACE TRIAL
ON A CHARGE OF FIRST-DEGREE MURDER, AND THE POLICE HAD AN EYEWITNESS TO
THE SHOOTING.  THE POLICE WERE NOT THEREFORE MERELY TRYING TO SOLVE A
CRIME, OR EVEN TO ABSOLVE A SUSPECT.  COMPARE CROOKER V. CALIFORNIA,
SUPRA, AND CICENIA V. LAGAY, SUPRA.  THEY WERE RATHER CONCERNED
PRIMARILY WITH SECURING A STATEMENT FROM DEFENDANT ON WHICH THEY COULD
CONVICT HIM.  THE UNDEVIATING INTENT OF THE OFFICERS TO EXTRACT A
CONFESSION FROM PETITIONER IS THEREFORE PATENT.  WHEN SUCH AN INTENT IS
SHOWN, THIS COURT HAS HELD THAT THE CONFESSION OBTAINED MUST BE
EXAMINED WITH THE MOST CAREFUL SCRUTINY, AND HAS REVERSED A CONVICTION
ON FACTS LESS COMPELLING THAN THESE.  MALINSKI V. NEW YORK, 324 U.S.
401.  ACCORDINGLY, WE HOLD THAT PETITIONER'S CONVICTION CANNOT STAND
UNDER THE FOURTEENTH AMENDMENT. 

THE STATE SUGGESTS, HOWEVER, THAT WE ARE NOT FREE TO REVERSE THIS
CONVICTION, SINCE THERE IS SUFFICIENT OTHER EVIDENCE IN THE RECORD FROM
WHICH THE JURY MIGHT HAVE FOUND GUILT, RELYING ON STEIN V. NEW YORK,
346 U.S. 156.  BUT PAYNE V. ARKANSAS, 356 U.S. 560, 568,
AUTHORITATIVELY ESTABLISHES THAT STEIN DID NOT HOLD THAT A CONVICTION
MAY BE SUSTAINED ON THE BASIS OF OTHER EVIDENCE IF A CONFESSION FOUND
TO BE INVOLUNTARY BY THIS COURT WAS USED, EVEN THOUGH LIMITING
INSTRUCTIONS WERE GIVEN.  STEIN HELD ONLY THAT WHEN A CONFESSION IS NOT
FOUND BY THIS COURT TO BE INVOLUNTARY, THIS COURT WILL NOT REVERSE ON
THE GROUND THAT THE JURY MIGHT HAVE FOUND IT INVOLUNTARY AND MIGHT HAVE
RELIED ON IT.  THE JUDGMENT MUST BE REVERSED. 

FN1  HOW THIS COULD BE SO WHEN THE ATTORNEY'S NAME, TOBIAS RUSSO, WAS
CONCEDEDLY IN THE TELEPHONE BOOK DOES NOT APPEAR.  THE TRIAL JUDGE
SUSTAINED OBJECTIONS BY THE ASSISTANT DISTRICT ATTORNEY TO QUESTIONS
DESIGNED TO DELVE INTO THIS MYSTERY. 

FN2  E.G., CICENIA V. LAGAY, 357 U.S. 504; CROOKER V. CALIFORNIA, 357
U.S. 433; ASHDOWN V. UTAH, 357 U.S. 426; PAYNE V. ARKANSAS, 356 U.S.
560; THOMAS V. ARIZONA, 356 U.S. 390; FIKES V. ALABAMA, 352 U.S. 191;
LEYRA V. DENNO, 347 U.S. 556; STEIN V. NEW YORK, 346 U.S. 156; BROWN V.
ALLEN, 344 U.S. 443; STROBLE V. CALIFORNIA, 343 U.S. 181; GALLEGOS V.
NEBRASKA, 342 U.S. 55; JOHNSON V. PENNSYLVANIA, 340 U.S. 881; HARRIS V.
SOUTH CAROLINA, 338 U.S. 68; TURNER V. PENNSYLVANIA, 338 U.S. 62; WATTS
V. INDIANA, 338 U.S. 49; LEE V. MISSISSIPPI, 332 U.S. 742; HALEY V.
OHIO, 332 U.S. 596; MALINSKI V. NEW YORK, 324 U.S. 401; LYONS V.
OKLAHOMA, 322 U.S. 596; ASHCRAFT V. TENNESSEE, 322 U.S. 143; WARD V.
TEXAS, 316 U.S. 547; LISENBA V. CALIFORNIA, 314 U.S. 219; VERNON V.
ALABAMA, 313 U.S. 547; LOMAX V. TEXAS, 313 U.S. 544; WHITE V. TEXAS,
310 U.S. 530; CANTY V. ALABAMA, 309 U.S. 629; CHAMBERS V. FLORIDA, 309
U.S. 227; BROWN V. MISSISSIPPI, 297 U.S. 278. 

FN3  MEDICAL REPORTS FROM NEW YORK CITY'S FORDHAM HOSPITAL INTRODUCED
BY DEFENDANT SHOWED THAT HE HAD SUFFERED A CEREBRAL CONCUSSION IN
1955.  HE WAS DESCRIBED BY A PRIVATE PHYSICIAN IN 1951 AS "AN EXTREMELY
NERVOUS TENSE INDIVIDUAL WHO IS EMOTIONALLY UNSTABLE AND MALADJUSTED,"
AND WAS FOUND UNACCEPTABLE FOR MILITARY SERVICE IN 1951, PRIMARILY
BECAUSE OF "PSYCHIATRIC DISORDER."  HE FAILED THE ARMY'S AFQT-1
INTELLIGENCE TEST.  HIS MOTHER HAD BEEN IN MENTAL HOSPITALS ON THREE
SEPARATE OCCASIONS. 

FN4  HIS NAME IS SOMETIMES SPELLED "HAWKS." 

FN5  ALTHOUGH EACH IS REFERRED TO SEPARATELY IN THE RECORD, IT MAY BE
THAT DETECTIVES LEHRER AND LEIRA ARE THE SAME PERSON. 

FN6  LISENBA V. CALIFORNIA, 314 U.S. 219, IS NOT TO THE CONTRARY. 
THERE, WHILE PETITIONER HAD ALREADY BEEN ARRAIGNED ON AN INCEST CHARGE,
HIS LATER QUESTIONING AND CONFESSION CONCERNED A MURDER. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
BRENNAN JOIN, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, I ADD WHAT FOR ME IS AN EVEN
MORE IMPORTANT GROUND OF DECISION. 

WE HAVE OFTEN DIVIDED ON WHETHER STATE AUTHORITIES MAY QUESTION A
SUSPECT FOR HOURS ON END WHEN HE HAD NO LAWYER PRESENT AND WHEN HE HAS
DEMENDED THAT HE HAVE THE BENEFIT OF LEGAL ADVICE.  SEE CROOKER V.
CALIFORNIA, 357 U.S. 433, AND CASES CITED.  BUT HERE WE DEAL NOT WITH A
SUSPECT BUT WITH A MAN WHO HAS BEEN FORMALLY CHARGED WITH A CRIME.  THE
QUESTION IS WHETHER AFTER THE INDICTMENT AND BEFORE THE TRIAL THE
GOVERNMENT CAN INTERROGATE THE ACCUSED IN SECRET WHEN HE ASKED FOR HIS
LAWYER AND WHEN HIS REQUEST WAS DENIED.  THIS IS A CAPITAL CASE; AND
UNDER THE RULE OF POWELL V. ALABAMA, 287 U.S. 45, THE DEFENDANT WAS
ENTITLED TO BE REPRESENTED BY COUNSEL.  THIS REPRESENTATION BY COUNSEL
IS NOT RESTRICTED TO THE TRIAL.  AS STATED IN POWELL V. ALABAMA, SUPRA,
P. 57: 

"DURING PERHAPS THE MOST CRITICAL PERIOD OF THE PROCEEDINGS AGAINST
THESE DEFENDANTS, THAT IS TO SAY, FROM THE TIME OF THEIR ARRAIGNMENT
UNTIL THE BEGINNING OF THEIR TRIAL, WHEN CONSULTATION, THOROUGHGOING
INVESTIGATION AND PREPARATION WERE VITALLY IMPORTANT, THE DEFENDANTS
DID NOT HAVE THE AID OF COUNSEL IN ANY REAL SENSE, ALTHOUGH THEY WERE
AS MUCH ENTITLED TO SUCH AID DURING THAT PERIOD AS AT THE TRIAL
ITSELF." 

DEPRIVING A PERSON, FORMALLY CHARGED WITH A CRIME, OF COUNSEL DURING
THE PERIOD PRIOR TO TRIAL MAY BE MORE DAMAGING THAN DENIAL OF COUNSEL
DURING THE TRIAL ITSELF. 

WE DO NOT HAVE HERE MERE SUSPECTS WHO ARE BEING SECRETLY INTERROGATED
BY THE POLICE AS IN CROOKER V. CALIFORNIA, SUPRA, NOR WITNESSES WHO ARE
BEING QUESTIONED IN SECRET ADMINISTRATIVE OR JUDICIAL PROCEEDINGS AS IN
IN RE GROBAN, 352 U.S. 330, AND ANONYMOUS NOS. 6 & 7 V. BAKER, ANTE, P.
287.  THIS IS A CASE OF AN ACCUSED, WHO IS SCHEDULED TO BE TRIED BY A
JUDGE AND JURY, BEING TRIED IN A PRELIMINARY WAY BY THE POLICE.  THIS
IS A KANGAROO COURT PROCEDURE WHEREBY THE POLICE PRODUCE THE VITAL
EVIDENCE IN THE FORM OF A CONFESSION WHICH IS USEFUL OR NECESSARY TO
OBTAIN A CONVICTION.  THEY IN EFFECT DENY HIM EFFECTIVE REPRESENTATION
BY COUNSEL.  THIS SEEMS TO ME TO BE A FLAGRANT VIOLATION OF THE
PRINCIPLE ANNOUNCED IN POWELL V. ALABAMA, SUPRA, THAT THE RIGHT OF
COUNSEL EXTENDS TO THE PREPARATION FOR TRIAL, AS WELL AS TO THE TRIAL
ITSELF.  AS PROFESSOR CHAFEE ONCE SAID, "A PERSON ACCUSED OF CRIME
NEEDS A LAWYER RIGHT AFTER HIS ARREST PROBABLY MORE THAN AT ANY OTHER
TIME."   CHAFEE, DOCUMENTS ON FUNDAMENTAL HUMAN RIGHTS, PAMPHLET 2
(1951-1952), P. 541.  WHEN HE IS DEPRIVED OF THAT RIGHT AFTER
INDICTMENT AND BEFORE TRIAL, HE MAY INDEED BE DENIED EFFECTIVE
REPRESENTATION BY COUNSEL AT THE ONLY STAGE WHEN LEGAL AID AND ADVICE
WOULD HELP HIM.  THIS SECRET INQUISITION BY THE POLICE WHEN DEFENDANT
ASKED FOR AND WAS DENIED COUNSEL WAS AS SERIOUS AN INVASION OF HIS
CONSTITUTIONAL RIGHTS AS THE DENIAL OF A CONTINUANCE IN ORDER TO EMPLOY
COUNSEL WAS HELD TO BE IN CHANDLER V. FRETAG, 348 U.S. 3, 10.  WHAT WE
SAID IN AVERY V. ALABAMA, 308 U.S. 444, 446, HAS RELEVANCE HERE: 

"  ...  THE DENIAL OF OPPORTUNITY FOR APPOINTED COUNSEL TO CONFER, TO
CONSULT WITH THE ACCUSED AND TO PREPARE HIS DEFENSE, COULD CONVERT THE
APPOINTMENT OF COUNSEL INTO A SHAM AND NOTHING MORE THAN A FORMAL
CONPLIANCE WITH THE CONSTITUTION'S REQUIREMENT THAT AN ACCUSED BE GIVEN
THE ASSISTANCE OF COUNSEL." 

I JOIN WITH JUDGES DESMOND, FULD, AND VAN VOORHIS OF THE NEW YORK
COURT OF APPEALS (4 N.Y.2D 256, 266, 173 N.Y.S.2D 793, 801, 150 N.E.2D
226, 231-232), IN ASKING, WHAT USE IS A DEFENDANT'S RIGHT TO EFFECTIVE
COUNSEL AT EVERY STAGE OF A CRIMINAL CASE IF, WHILE HE IS HELD AWAITING
TRIAL, HE CAN BE QUESTIONED IN THE ABSENCE OF COUNSEL UNTIL HE
CONFESSES?  IN THAT EVENT THE SECRET TRIAL IN THE POLICE PRECINCTS
EFFECTIVELY SUPPLANTS THE PUBLIC TRIAL GUARANTEED BY THE BILL OF
RIGHTS. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN
JOIN, CONCURRING. 

WHILE I CONCUR IN THE OPINION OF THE COURT, IT IS MY VIEW THAT THE
ABSENCE OF COUNSEL WHEN THIS CONFESSION WAS ELICITED WAS ALONE ENOUGH
TO RENDER IT INADMISSIBLE UNDER THE FOURTEENTH AMENDMENT. 

LET IT BE EMPHASIZED AT THE OUTSET THAT THIS IS NOT A CASE WHERE THE
POLICE WERE QUESTIONING A SUSPECT IN THE COURSE OF INVESTIGATING AN
UNSOLVED CRIME.  SEE CROOKER V. CALIFORNIA, 357 U.S. 433; CICENIA V.
LAGAY, 357 U.S. 504.  WHEN THE PETITIONER SURRENDERED TO THE NEW YORK
AUTHORITIES HE WAS UNDER INDICTMENT FOR FIRST DEGREE MURDER. 

UNDER OUR SYSTEM OF JUSTICE AN INDICTMENT IS SUPPOSED TO BE FOLLOWED
BY AN ARRAIGNMENT AND A TRIAL.  AT EVERY STAGE IN THOSE PROCEEDINGS THE
ACCUSED HAS AN ABSOLUTE RIGHT TO A LAWYER'S HELP IF THE CASE IS ONE IN
WHICH A DEATH SENTENCE MAY BE IMPOSED.  POWELL V. ALABAMA, 287 U.S.
45.  INDEED THE RIGHT TO THE ASSISTANCE OF COUNSEL WHOM THE ACCUSED HAS
HIMSELF RETAINED IS ABSOLUTE, WHATEVER THE OFFENSE FOR WHICH HE IS ON
TRIAL.  CHANDLER V. FRETAG, 348 U.S. 3. 

WHAT FOLLOWED THE PETITIONER'S SURRENDER IN THIS CASE WAS NOT
ARRAIGNMENT IN A COURT OF LAW, BUT AN ALL-NIGHT INQUISITION IN A
PROSECUTOR'S OFFICE, A POLICE STATION, AND AN AUTOMOBILE.  THROUGHOUT
THE NIGHT THE PETITIONER REPEATEDLY ASKED TO BE ALLOWED TO SEND FOR HIS
LAWYER, AND HIS REQUESTS WERE REPEATEDLY DENIED.  HE FINALLY WAS
INDUCED TO MAKE A CONFESSION.  THAT CONFESSION WAS USED TO SECURE A
VERDICT SENDING HIM TO THE ELECTRIC CHAIR. 

OUR CONSTITUTION GUARANTEES THE ASSISTANCE OF COUNSEL TO A MAN ON
TRIAL FOR HIS LIFE IN AN ORDERLY COURTROOM, PRESIDED OVER BY A JUDGE,
OPEN TO THE PUBLIC, AND PROTECTED BY ALL THE PROCEDURAL SAFEGUARDS OF
THE LAW.  SURELY A CONSTITUTION WHICH PROMISES THAT MUCH CAN VOUCHSAFE
NO LESS TO THE SAME MAN UNDER MIDNIGHT INQUISITION IN THE SQUAD ROOM OF
A POLICE STATION. 
..END :










UNITED STATES V. 93.970 ACRES OF LAND 360 U.S. 328 


NO. 573.  ARGUED MAY 21, 1959.  - DECIDED JUNE 22, 1959.  - 258 F.2D 17,
REVERSED. 


UNDER A STATUTE AUTHORIZING THE SECRETARY OF THE NAVY TO LEASE NAVAL
LANDS UNDER REVOCABLE LEASES, HE LEASED A NAVAL AIRFIELD IN ILLINOIS TO
A PRIVATE OPERATOR.  THE LEASE CONTAINED A PREAMBLE STATING THAT IT WAS
CONSIDERED ESSENTIAL TO RETAIN THE FIELD IN A STAND-BY STATUS FOR USE
"IN CONNECTION WITH NAVAL AVIATION ACTIVITIES" AND A SUBSTANTIVE
PROVISION THAT "THIS LEASE WILL AT ALL TIMES BE REVOCABLE AT WILL BY
THE GOVERNMENT" UPON GIVEN CERTAIN NOTICE.  SUBSEQUENTLY, THE ARMY
DESIRED TO USE THE LAND FOR AN AERIAL DEFENSE MISSILE SITE, AND THE
SECRETARIES OF THE ARMY AND NAVY JOINTLY SERVED NOTICE OF REVOCATION ON
THE LESSEE.  THE LESSEE DECLINED TO LEAVE THE LAND, CLAIMING THAT THE
LEASE COULD BE REVOKED ONLY WHEN THE LAND WAS NEEDED FOR "NAVAL
AVIATION ACTIVITIES."  IN ORDER TO OBTAIN POSSESSION AS SOON AS
POSSIBLE, THE GOVERNMENT SUED TO CONDEMN WHATEVER POSSESSORY INTEREST
THE LESSEE MIGHT BE ADJUDICATED TO HAVE; BUT THE GOVERNMENT MAINTAINED
THAT IT HAD VALIDLY REVOKED THE LEASE.  HELD: 

1.  THE GOVERNMENT'S RIGHT TO REVOKE THE LEASE WAS NOT RESTRICTED TO
OCCASIONS WHEN IT DESIRED TO USE THE LAND FOR AVIATION PURPOSES, AND
THE REVOCATION WAS VALID AND EFFECTIVE.  PP. 331-332. 

2.  THE DOCTRINE OF "ELECTION OF REMEDIES" DID NOT REQUIRE THE
GOVERNMENT TO ABANDON ITS RIGHT TO REVOKE THE LEASE IN ORDER TO
EXERCISE ITS RIGHT TO OBTAIN IMMEDIATE POSSESSION UNDER THE
CONDEMNATION LAW.  P. 332. 

3.  SINCE ESSENTIAL INTERESTS OF THE FEDERAL GOVERNMENT ARE HERE
INVOLVED AND CONGRESS HAS NOT MADE STATE LAW APPLICABLE, FEDERAL LAW
GOVERNS, EVEN IF THE DOCTRINE OF ELECTION OF REMEDIES IS A PART OF THE
LAW OF ILLINOIS.  PP. 332-333. 

UNITED STATES V. 93.970 ACRES OF LAND ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE BASIC QUESTION PRESENTED IN THIS CASE IS WHETHER THE UNITED
STATES CAN HAVE ADJUDICATED UNDER ONE COMPLAINT (1) THE CLAIM BY A
THIRD PERSON OF VALUABLE POSSESSORY INTEREST IN GOVERNMENT PROPERTY AND
(2) CONDEMNATION AND VALUE OF THAT INTEREST, IF ANY.  IN 1947 THE
UNITED STATES LEASED AN AIRFIELD TO RESPONDENT ILLINOIS AIRCRAFT
SERVICES & SALES CO. THE PREAMBLE TO THE LEASE STATED THAT BECAUSE OF
THE STRATEGIC VALUE OF THE FIELD THE GOVERNMENT CONSIDERED IT ESSENTIAL
TO RETAIN IT "IN A STAND-BY STATUS FOR POST-WAR USE IN CONNECTION WITH
NAVAL AVIATION ACTIVITIES  ...  ."  (FN1)  ONE PARAGRAPH OF THE LEASE
PROVIDED: 

"IT IS UNDERSTOOD AND AGREED THAT THIS LEASE WILL AT ALL TIMES BE
REVOCABLE AT WILL BY THE GOVERNMENT UPON PRESENTATION OF NOTICE OF
CANCELLATION TO THE LESSEE, IN WRITING, SIXTY (60) DAYS PRIOR TO SUCH
TERMINATION,  ...  IN EVENT OF A NATIONAL EMERGENCY AND A DECISION BY
THE SECRETARY OF THE NAVY THAT SUCH REVOCATION IS ESSENTIAL." 

IN 1954 THE ARMY WANTED TO USE THE PROPERTY FOR AN AERIAL DEFENSE
MISSILE (NIKE) SITE.  TIMELY NOTICE OF REVOCATION WAS DELIVERED TO
RESPONDENT UNDER THE SIGNATURES OF THE SECRETARIES OF THE ARMY AND
NAVY, STATING THAT A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT IN
1950 WAS STILL IN EFFECT AND THAT BOTH SECRETARIES DEEMED REVOCATION OF
THE LEASE ESSENTIAL.  RESPONDENT DECLINED TO LEAVE THE LAND, CLAIMING
THAT THE GOVERNMENT HAD GONE BEYOND THE AUTHORITY GRANTED BY THE LEASE
IN ATTEMPTING TO REVOKE IT FOR USE BY THE ARMY RATHER THAN IN
CONNECTION WITH NAVAL AVIATION ACTIVITIES MENTIONED IN THE PREAMBLE TO
THE LEASE. 

IN ORDER TO OBTAIN POSSESSION AND USE OF THE LAND AS SOON AS POSSIBLE
- AND WITHOUT WAITING TO TRY OUT THE VALIDITY OF THE PRIOR REVOCATION
IN A SEPARATE ACTION OR ACTIONS - THE GOVERNMENT FILED A COMPLAINT TO
CONDEMN WHATEVER POSSESSORY INTEREST RESPONDENT MIGHT BE ADJUDICATED TO
HAVE.  ALTHOUGH THE GOVERNMENT'S COMPLAINT ALLEGED THAT IT HAD REVOKED
THE LEASE AND, IN EFFECT, THAT RESPONDENT HAD NO COMPENSABLE INTEREST
IN THE PROPERTY TAKEN, THE DISTRICT COURT RULED THAT BY SUING FOR
CONDEMNATION THE UNITED STATES HAD "ELECTED" TO ABANDON ITS PRIOR
REVOCATION.  ON THIS BASIS THE COURT FOUND THAT RESPONDENT HAD A
COMPENSABLE INTEREST AND LET A JURY DETERMINE ITS VALUE.  UNDER
INSTRUCTIONS THAT THE LEASE WAS REVOCABLE ONLY IF NEEDED FOR "AVIATION
PURPOSES" AND THAT A NIKE SITE WAS NOT SUCH A PURPOSE, THE JURY
RETURNED A $25,000 VERDICT FOR RESPONDENTS.  ON APPEAL THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED THIS VERDICT
BY A DIVIDED COURT.  258 F.2D 17.  IT HELD (1) THAT THE DOCTRINE OF
"ELECTION OF REMEDIES" APPLIED AND BARRED CONSIDERATION OF THE
REVOCATION WHETHER STATE OR FEDERAL LAW GOVERNED AND (2) THAT THE LEASE
ONLY BE VALIDLY REVOKED UNDER ITS TERMS IF THE GOVERNMENT PLANNED TO
USE THE LAND FOR "AVIATION PURPOSES."  TO REVIEW THE SEVERE
RESTRICTIONS THE COURT'S HOLDING PLACES ON THE ABILITY OF THE UNITED
STATES TO GET, QUICKLY, LAND IT MAY NEED FOR GOVERNMENT PURPOSES, WE
GRANTED CERTIORARI.  358 U.S. 945.  (FN2)

WE CANNOT AGREE THAT THE LEASE PERMITTED REVOCATION ONLY IF THE
GOVERNMENT WANTED THE LAND FOR "AVIATION PURPOSES."  IT IS TRUE THAT
THE PREAMBLE TO THE AGREEMENT STATES THAT THE AIRFIELD WAS LEASED,
RATHER THAN SOLD, BECAUSE IT WAS NEEDED IN STAND-BY STATUS FOR NAVAL
AVIATION ACTIVITIES.  IT IS ALSO TRUE THAT IMMEDIATELY FOLLOWING THE
PREAMBLE THERE IS A STATEMENT, COMMON IN MANY CONTRACTS, THAT "NOW
THEREFORE, IN CONSIDERATION OF THE FOREGOING, AND OF THE COVENANTS
HEREINAFTER MENTIONED, THE GOVERNMENT" LEASES THE AIRPORT.  THERE IS NO
INDICATION, HOWEVER, EITHER IN THE LEASE ITSELF OR AS FAR AS WE HAVE
BEEN SHOWN IN THE HISTORY OF THE AGREEMENT, THAT THIS PREAMBLE AND THE
FORMAL LEGAL STATEMENT IMMEDIATELY FOLLOWING IT MEANT TO LIMIT THE
EXPRESS AND UNEQUIVOCAL CLAUSE OF THE LEASE ALLOWING REVOCATION AT THE
WILL OF THE SECRETARY OF THE NAVY IN THE EVENT OF A NATIONAL
EMERGENCY.  INSTEAD THE PREAMBLE CAN BE EASILY UNDERSTOOD, IN VIEW OF
THE SURPLUS PROPERTY ACT OF 1944, WHICH REQUIRED ALL SURPLUS PROPERTY
TO BE DISPOSED OF, AS A MERE STATEMENT OF WHY THE PROPERTY WAS NOT
CONSIDERED SURPLUS.  (FN3)  IN ADDITION THE STATUTE WHICH AUTHORIZED
THE AIRPORT LEASE PROVIDED THAT SUCH LEASES SHALL BE REVOCABLE "AT ANY
TIME, UNLESS THE SECRETARY SHALL DETERMINE THAT THE OMISSION OF SUCH
PROVISION FROM THE LEASE WILL PROMOTE THE NATIONAL DEFENSE OR WILL BE
IN THE PUBLIC INTEREST.  IN ANY EVENT EACH SUCH LEASE SHALL BE
REVOCABLE BY THE SECRETARY  ...  DURING A NATIONAL EMERGENCY DECLARED
BY THE PRESIDENT."  (FN4)  UNDER THE CIRCUMSTANCES, WE CANNOT AND WILL
NOT ASSUME THAT AN EXPLICIT REVOCATION CLAUSE IN THE LEASE MEANS ANY
LESS THAN IT SEEMS TO MEAN.  WE THEREFORE HOLD THAT THE REVOCATION WAS
VALID AND EFFECTIVE. 

IT FOLLOWS NECESSARILY FROM THIS THAT APPLICATION OF THE DOCTRINE OF
"ELECTION OF REMEDIES" WOULD PUT THE GOVERNMENT IN AN IMPOSSIBLE
SITUATION.  FOR UNDER THE DOCTRINE, THE GOVERNMENT MUST CHOOSE EITHER
TO ABANDON ITS POWER TO REVOKE THE LEASE OR TO GIVE UP ITS RIGHT TO
IMMEDIATE POSSESSION UNDER CONDEMNATION LAW, A RIGHT WHICH IS NOT HERE
QUESTIONED.  WE SEE NO REASON EITHER IN JUSTICE OR AUTHORITY WHY SUCH A
HOBSON'S CHOICE SHOULD BE IMPOSED AND WHY THE GOVERNMENT SHOULD BE
FORCED TO PAY FOR PROPERTY WHICH IT RIGHTFULLY OWNS MERELY BECAUSE IT
ATTEMPTED TO AVOID DELAYS WHICH THE APPLICABLE LAWS SEEK TO PREVENT. 
SUCH A STRICT RULE AGAINST COMBINING DIFFERENT CAUSES OF ACTION WOULD
CERTAINLY BE OUT OF HARMONY WITH MODERN LEGISLATION AND RULES DESIGNED
TO MAKE TRIALS AS EFFICIENT, EXPEDITIOUS AND INEXPENSIVE AS FAIRNESS
WILL PERMIT.  (FN5) 

RESPONDENTS ARGUE, HOWEVER, THAT ELECTION OF REMEDIES IS PART OF THE
LAW OF ILLINOIS AND THAT ILLINOIS LAW APPLIES HERE.  WE CANNOT AGREE
WITH THIS VIEW.  CONDEMNATION INVOLVES ESSENTIAL GOVERNMENTAL
FUNCTIONS.  SEE KOHL V. UNITED STATES, 91 U.S. 367.  WE HAVE OFTEN HELD
THAT WHERE ESSENTIAL INTERESTS OF THE FEDERAL GOVERNMENT ARE CONCERNED,
FEDERAL LAW RULES UNLESS CONGRESS CHOOSES TO MAKE STATE LAWS
APPLICABLE.  (FN6)  IT IS APPARENT THAT NO SUCH CHOICE HAS BEEN MADE
HERE.  (FN7) 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  THE PREAMBLE READS: 

"WHEREAS, BECAUSE OF ITS STRATEGIC VALUE, IT IS CONSIDERED ESSENTIAL
THAT THE SAID AIRFIELD AND THE FACILITIES THEREON, COMPRISING THE SAID
UNITED STATES NAVAL OUTLYING AIRFIELD, BE RETAINED IN A STAND-BY STATUS
FOR POST-WAR USE IN CONNECTION WITH NAVAL AVIATION ACTIVITIES; AND: 

     *         *         *    *         * 

"WHEREAS, THE USE OF THE AIRFIELD AND FACILITIES BY THE LESSEE  ...
WILL IN NO WISE BE DETRIMENTAL TO THE PRESENT ACTIVITIES OF THE NAVY
DEPARTMENT, BUT IS ON THE CONTRARY DEEMED TO BE IN THE BEST INTEREST OF
THE GOVERNMENT." 

FN2  THE DECISION OF THE COURT BELOW IS ALSO IN APPARENT CONFLICT
WITH UNITED STATES V. SAN GERONIMO DEV.  CO., 154 F.2D 78 (C.A. 1ST
CIR.), AND UNITED STATES V. TURNER, 175 F.2D 644 (C.A. 5TH CIR.). 

FN3  58 STAT. 767-770, 777, AS AMENDED, 50 U.S.C. APP. (1946 ED.) 
SECS.  1612(E), 1613, 1620, 1632. 

FN4  61 STAT. 774, 34 U.S.C. SEC. 522A.  THE CURRENT VERSION OF THIS
STATUTE IS FOUND IN 10 U.S.C. (SUPP. V) SEC. 2667.  WE ASSUME WITHOUT
DECIDING THAT THIS STATUTE IS APPLICABLE ALTHOUGH AN ARGUMENT CAN BE
MADE FOR THE APPLICABILITY OF A PRIOR STATUTE.  THAT LAW PROVIDED THAT
LEASES MUST BE "REVOCABLE AT ANY TIME."  39 STAT. 559, 34 U.S.C. (1946
ED.)  SEC.  522. 

FN5  CF. CONLEY V. GIBSON, 355 U.S. 41, 48.  SEE ALSO FED. RULES CIV.
PROC., 1, 2, 18. 

FN6  SEE, E.G., KOHL V. UNITED STATES, 91 U.S. 367, 374; UNITED
STATES V. MILLER, 317 U.S. 369, 380; CLEARFIELD TRUST CO. V. UNITED
STATES, 318 U.S. 363; BANK OF AMERICA NAT. T. & S. ASSN. V. PARNELL,
352 U.S. 29. 

FN7  RESPONDENTS RELY ON 26 STAT. 316, AS AMENDED, 50 U.S.C. SEC.
171, WHICH PROVIDED THAT CONDEMNATION PROCEEDINGS LIKE THE ONE HERE
INVOLVED WERE "TO BE PROSECUTED IN ACCORDANCE WITH THE LAWS RELATING TO
SUITS FOR THE CONDEMNATION OF PROPERTY OF THE STATES WHEREIN THE
PROCEEDINGS MAY BE INSTITUTED."  BUT IT IS SETTLED THAT THIS LANGUAGE
REQUIRED CONFORMITY IN PROCEDURAL MATTERS ONLY.  SEE UNITED STATES V.
MILLER, 317 U.S. 369, 379-380 (CITING 25 STAT. 94); KANAKANUI V. UNITED
STATES, 244 F. 923; NEBRASKA V. UNITED STATES, 164 F.2D 866, AFFIRMING
UNITED STATES V. 19,573.59 ACRES OF LAND, 70 F. SUPP. 610.  AND INSOFAR
AS IT REQUIRED SUCH PROCEDURAL CONFORMITY IT WAS CLEARLY REPEALED BY
RULE 71A, FEDERAL RULES OF CIVIL PROCEDURE, AT THE TIME THIS SUIT WAS
BROUGHT.  IT FOLLOWS THAT FEDERAL LAW WAS WHOLLY APPLICABLE TO THIS
CASE.  IN REACHING THIS CONCLUSION WE EXPRESS NO OPINION ON THE
POSSIBLE EFFECT ON OTHER CASES OF THE RE-ENACTMENT OF THIS CONFORMITY
CLAUSE IN 70A STAT. 148, 10 U.S.C. (SUPP. V) SEC. 2663(A) (1956), OR
ITS SUBSEQUENT REPEAL, RETROACTIVE TO THE TIME OF RE-ENACTMENT, BY THE
ACT OF SEPTEMBER 2, 1958.  72 STAT. 1565, 1568. 
..END :







SAFEWAY STORES, INC. V. OKLAHOMA RETAIL GROCERS ASSOCIATION 360 U.S.
334 


NO. 252.  ARGUED MAY 19, 1950.  - DECIDED JUNE 22, 1959.  - 322 P.2D
178, AFFIRMED. 


UNDER THE OKLAHOMA UNFAIR SALES ACT, A STATE COURT ENJOINED APPELLANT
FROM SELLING AT RETAIL ANY ITEMS OF MERCHANDISE AT PRICES LESS THAN
STATUTORY COST, EVEN THOUGH SOME OF APPELLANT'S COMPETITORS WERE
SELLING BELOW COST AT PRICES APPELLANT EITHER KNEW OR HAD REASON TO
KNOW WERE ILLEGAL.  THE OKLAHOMA COURT ALSO REFUSED TO ENJOIN CERTAIN
OF APPELLANT'S COMPETITORS FROM GIVING AWAY TRADING STAMPS WITH GOODS
SOLD AT OR NEAR STATUTORY COST, AND ENJOINED APPELLANT FROM REDUCING
ITS PRICES BELOW COST TO MEET THAT COMPETITION.  HELD:  THE OKLAHOMA
UNFAIR SALES ACT, AS CONSTRUED AND APPLIED IN THIS CASE, DOES NOT
TRANSGRESS THE EQUAL PROTECTION OR DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 334-342. 

SAFEWAY STORES, INC., V. OKLAHOMA RETAIL GROCERS ASSOCIATION, INC., ET
AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR AN INJUNCTION, BROUGHT IN A STATE COURT IN
OKLAHOMA BY APPELLEE, OKLAHOMA RETAIL GROCERS ASSOCIATION, AGAINST
APPELLANT, SAFEWAY STORES, FOR SELLING SEVERAL SPECIFIED ITEMS OF
RETAIL GROCERY MERCHANDISE BELOW "COST" IN VIOLATION OF THE OKLAHOMA
UNFAIR SALES ACT.  OKLA. STAT. TIT. 15, SECS. 598.1-598.11 (1951). 

"IT IS HEREBY DECLARED THAT ANY ADVERTISING, OFFER TO SELL, OR SALE
OF ANY MERCHANDISE EITHER BY RETAILERS OR WHOLESALERS, AT LESS THAN
COST AS DEFINED IN THIS ACT WITH THE INTENT AND PURPOSE OF INDUCING THE
PURCHASE OF OTHER MERCHANDISE OR OF UNFAIRLY DIVERTING TRADE FROM A
COMPETITOR OR OTHERWISE INJURING A COMPETITOR, IMPAIR AND PREVENT FAIR
COMPETITION, INJURE PUBLIC WELFARE, ARE UNFAIR COMPETITION AND CONTRARY
TO PUBLIC POLICY AND THE POLICY OF THIS ACT, WHERE THE RESULT OF SUCH
ADVERTISING, OFFER OR SALE IS TO TEND TO DECEIVE ANY PURCHASER OR
PROSPECTIVE PURCHASER, OR TO SUBSTANTIALLY LESSEN COMPETITION, OR TO
UNREASONABLY RESTRAIN TRADE, OR TO TEND TO CREATE A MONOPOLY IN ANY
LINE OF COMMERCE." 

THE ELEMENTS OF "COST" ARE ENUMERATED IN OTHER SECTIONS OF THE
STATUTE.  SAFEWAY DEFENDED ON THE GROUND, INTER ALIA, THAT ITS
REDUCTIONS WERE PERMITTED BY SEC. 598.7 OF THE UNFAIR SALES ACT WHICH
ALLOWS "ANY RETAILER OR WHOLESALER" TO: 

"  ...  ADVERTISE, OFFER TO SELL, OR SELL MERCHANDISE AT A PRICE MADE
IN GOOD FAITH TO MEET THE PRICE OF A COMPETITOR WHO IS SELLING THE SAME
ARTICLE OR PRODUCTS OF COMPARABLE QUALITY AT COST TO HIM AS A
WHOLESALER OR RETAILER." 

SAFEWAY BY CROSS-PETITION SOUGHT TO ENJOIN SEVERAL NAMED MEMBERS OF
APPELLEE ASSOCIATION, INCLUDING SPEED, ALLEGING THAT THEY WERE SELLING
BELOW COST IN VIOLATION OF THE ACT.  THE TRIAL COURT, WITH SOME
QUALIFICATION, GRANTED THE INJUNCTION AGAINST SAFEWAY AND DENIED RELIEF
AGAINST APPELLEES.  ON APPEAL, THE SUPREME COURT OF OKLAHOMA AFFIRMED,
322 P.2D 179, AND SINCE THE CONSTITUTIONALITY OF THE STATE STATUTE WAS
CHALLENGED UNDER THE FOURTEENTH AMENDMENT, WE NOTED PROBABLE
JURISDICTION, 358 U.S. 807, AND BROUGHT THE CASE HERE UNDER 28 U.S.C.
SEC. 1257(2). 

SAFEWAY MAKES TWO MAIN CLAIMS. 

1.  SAFEWAY JUSTIFIED CUTTING PRICES BELOW COST IN SOME CITIES BY
CLAIMING IT WAS TO MEET THE PRICES OF SOME OF ITS COMPETITIORS WHO WERE
ALSO SELLING BELOW COST.  THE STATUTE ALLOWS A REDUCTION BELOW COST
ONLY WHEN IT IS A GOOD FAITH MEETING OF THE COMPETITION OF A SELLER WHO
IS SELLING AT HIS OWN COST.  THE TRIAL COURT FOUND THAT SAFEWAY'S
REDUCTIONS VIOLATED THE ACT, AND THAT SAFEWAY COULD NOT AVAIL ITSELF OF
THE STATUTORY DEFENSE OF MEETING COMPETITION SINCE ITS REDUCTIONS WERE
NOT IN GOOD FAITH BUT WERE MADE TO MEET PRICES SAFEWAY "EITHER KNEW OR
HAD REASON TO KNOW WERE ILLEGAL  ...  ."  THE COURT ENJOINED SAFEWAY
FROM:

"  ...  SELLING, AT RETAIL, ANY ITEMS OF MERCHANDISE  ...  AT PRICES
WHICH ARE LESS THAN COST TO THE RETAILER AS DEFINED IN THE OKLAHOMA
'UNFAIR SALES ACT' AND IN VIOLATION OF THE PROVISIONS OF SAID 'UNFAIR
SALES ACT', EXCEPT TO MEET IN GOOD FAITH THE PRICES OF COMPETITORS WHO
ARE SELLING THE SAME ARTICLES OR PRODUCTS OF COMPARABLE QUALITY AT COST
TO THEM AS RETAILERS AS DEFINED IN THE OKLAHOMA 'UNFAIR SALES ACT', AND
EXCEPT IN INSTANCES OF OTHER EXEMPTED SALES AS PROVIDED IN SECTION
598.6 OF SAID OKLAHOMA 'UNFAIR SALES ACT.'" 

THE INJUNCTION, PHRASED SUBSTANTIALLY IN THE TERMS OF THE STATUTE,
ALLOWS SAFEWAY TO MEET THE PRICES OF COMPETITORS WHO ARE SELLING "AT
COST TO THEM" IF THE OTHER REQUISITES OF THE GOOD FAITH DEFENSE ARE
MET.  APPELLANT CLAIMS THAT THIS INJUNCTION DEPRIVES IT OF A
CONSTITUTIONAL RIGHT TO COMPETE SINCE IT FORBIDS MEETING THE PRICES OF
COMPETITORS WHO ARE SELLING BELOW COST.  THERE IS NO CONSTITUTIONAL
RIGHT TO EMPLOY RETALIATION AGAINST ACTION OUTLAWED BY A STATE. 
SAFEWAY, THE OKLAHOMA COURT HELD, HAD AMPLE MEANS, UNDER THE STATE
STATUTE, TO ENJOIN THE ILLEGAL METHODS OF ITS COMPETITORS.  IT HAD NO
CONSTITUTIONAL RIGHT TO EMBARK ON THE VERY KIND OF DESTRUCTIVE PRICE
WAR THE ACT WAS DESIGNED TO PREVENT. 

APPELLANT ALSO CLAIMS THAT THERE ARE SITUATIONS IN WHICH A COMPETITOR
MIGHT REDUCE HIS PRICES BELOW COST WITHOUT VIOLATING THE ACT, AND
HENCE, UNDER THE INJUNCTION, SAFEWAY WOULD HAVE NO REMEDY WHATSOEVER
SINCE IT COULD NOT RETALIATE IN KIND AND JUDICIAL RELIEF WOULD NOT BE
AVAILABLE.  THE CONCLUSIVE ANSWER TO THIS CLAIM IS THAT IT IS NOT
BEFORE US FOR ADJUDICATION.  THE COURT BELOW FOUND THAT SAFEWAY WAS
MEETING PRICES IT "KNEW OR HAD REASON TO KNOW" WERE ILLEGAL.  IT THEN
PHRASED ITS INJUNCTION IN THE TERMS OF A STATUTE WHICH HAS YET TO BE
CONSTRUED IN THE ABSTRACT CIRCUMSTANCES PRESENTED BY APPELLANT.  THE
OKLAHOMA SUPREME COURT CAREFULLY NOTED THAT IT WAS INTERPRETING THE
UNFAIR SALES ACT AS APPLIED TO THE PARTICULAR FACTS OF THIS CASE,
POINTING OUT THAT "UNTIL A PROPER FACTUAL CASE IS PRESENTED WHICH
REQUIRES A CLEAR DETERMINATION AND OFFERS A PRACTICAL SITUATION IN
WHICH ALL THE CONFLICTING PROBLEMS AND CONSIDERATIONS OF THE AREA
INVOLVED ARE APPARENT, THIS COURT WILL REFRAIN FROM THEORIZING."  322
P.2D, AT 181.  IF THIS IS A RULE OF WISE RESTRAINT FOR THE COURTS OF
OKLAHOMA IN THIS SITUATION, IT CLEARLY BARS CONSTITUTIONAL ADJUDICATION
HERE.  (FN1) 

2.  APPELLANT'S SECOND CONTENTION INVOLVES ITS COMPETITORS' USE OF
TRADING STAMPS.  TRADING STAMPS, IT HARDLY NEEDS TO BE STATED, ARE,
GENERALLY SPEAKING, COUPONS GIVEN BY DEALERS TO RETAIL PURCHASERS ON
THE BASIS OF THE DOLLAR VALUE OF THE ITEMS PURCHASED, E.G., ONE STAMP
FOR EACH TEN CENTS' WORTH OF GOODS, AND ARE COLLECTED BY THE PURCHASER
UNTIL HE HAS ENOUGH TO REDEEM FOR VARIOUS ITEMS OF MERCHANDISE. 
TRADING STAMPS HAVE HAD A CHECKERED CAREER IN THE UNITED STATES, BUT
SINCE WORLD WAR II THEIR POPULARITY HAS GROWN UNTIL NOW IT IS A
REASONABLE ESTIMATE THAT THESE MULTI-COLORED SCRAPS OF PAPER MAY BE
FOUND IN ALMOST HALF OF AMERICA'S HOMES.  (FN2) 

WHEN THIS SUIT WAS BROUGHT SAFEWAY DID NOT USE TRADING STAMPS.  IN
THE OKLAHOMA CITY-MIDWEST CITY AREA SEVERAL OF ITS COMPETITORS DID. 
THESE STAMPS WERE DEEMED TO BE WORTH APPROXIMATELY 2.5 PERCENT OF THE
PRICE OF THE GOODS WITH WHICH THEY WERE GIVEN.  SAFEWAY CONTENDED IN
THE OKLAHOMA COURTS THAT GIVING A TRADING STAMP WITH GOODS SOLD AT OR
NEAR THE STATUTORY MINIMUM RESULTED IN AN UNLAWFUL REDUCTION BELOW
"COST" TO THE EXTENT OF THE VALUE OF THE TRADING STAMP.  TO BE
SPECIFIC, IF AN ITEM SOLD FOR $1, AND THAT PRICE WAS STATUTORY COST,
THE TRADING STAMPS GIVEN WITH IT WOULD BE WORTH APPROXIMATELY 2.5 CENTS
AND THE NET PRICE WAS THEREFORE $.975, OR 2.5 CENTS BELOW COST. 
SAFEWAY SOUGHT TO RESTRAIN ITS COMPETITORS FROM SELLING BELOW COST IN
THIS MANNER AND ALSO CLAIMED THAT IT WAS JUSTIFIED, IN ORDER TO MEET
COMPETITION, IN REDUCING ITS PRICES TO THE NET OF ITS COMPETITORS'
PRICES, TAKING INTO ACCOUNT THE VALUE OF TRADING STAMPS.  THE OKLAHOMA
COURT FOUND THAT THE GIVING OF TRADING STAMPS WITH ITEMS SOLD AT OR
NEAR STATUTORY COST WAS NOT A VIOLATION OF THE STATUTE AND DENIED
SAFEWAY'S REQUEST FOR AN INJUNCTION.  THE COURT ALSO DECIDED THAT
SAFEWAY COULD NOT REDUCE ITS PRICES TO MEET THE TRADING STAMP
COMPETITION.  IT DID, HOWEVER, PROVIDE THAT SAFEWAY COULD DO WHAT
APPELLEES DID, IT MIGHT ISSUE "TRADING STAMPS, CASH REGISTER RECEIPTS,
OR OTHER EVIDENCE OF CREDIT ISSUED AS A DISCOUNT FOR PROMPT PAYMENT OF
CASH  ...  ," AS LONG AS THE VALUE OF THE DISCOUNT DID NOT EXCEED THREE
PERCENT.  (FN3) 

SAFEWAY CONTENDS THAT SUCH A CONSTRUCTION OF THE UNFAIR SALES ACT
VIOLATES THE FOURTEENTH AMENDMENT.  APPELLANT CLAIMS THAT EVEN THOUGH
THE STATE MAY PROHIBIT SALES BELOW "COST," IT IS BARRED FROM ALLOWING A
MERCHANT TO GIVE TRADING STAMPS WITH GOODS SOLD AT OR NEAR "COST,"
UNLESS IT ALLOWS COMPETING MERCHANTS TO MAKE AN EQUIVALENT PRICE
REDUCTION.  FOR THE STATE TO DIFFERENTIATE BETWEEN THE USE OF TRADING
STAMPS AND PRICE-CUTTING IS, SO THE ARGUMENT RUNS, A CONSTITUTIONALLY
INADMISSIBLE DISCRIMINATION.  (FN4) 

"IT WOULD BE AN IDLE PARADE OF FAMILIAR LEARNING TO REVIEW THE
MULTITUDINOUS CASES IN WHICH THE CONSITUTIONAL ASSURANCE OF THE EQUAL
PROTECTION OF THE LAWS HAS BEEN APPLIED.  THE GENERALITIES ON THIS
SUBJECT ARE NOT IN DISPUTE; THEIR APPLICATION TURNS PECULIARLY ON THE
PARTICULAR CIRCUMSTANCES OF A CASE."  GOESAERT V. CLEARY, 335 U.S. 464,
467. 

THE OKLAHOMA COURT DECIDED THAT, ALTHOUGH PRICE CUTS BELOW COST WERE
PROHIBITED BY THE STATUTE, THE USE OF TRADING STAMPS WAS NOT A PRICE
REDUCTION BUT CONSTITUTED A CASH DISCOUNT, I.E., A REDUCTION GIVEN TO
CUSTOMERS FOR PROMPT PAYMENT OF CASH.  OPPOSING EXPERT ACCOUNTANTS
SUSTAINED AND REJECTED THE VALIDITY OF SUCH A DIFFERENCE.  IN MATTERS
OF THIS SORT WE MIGHT CONTENT OURSELVES IN RESTING ON THE CLASH OF
EXPERT OPINION TO SHOW THAT THE OKLAHOMA DECISION WAS NOT WANTING IN A
FOUNDATION THAT MAY NOT UNJUSTIFIABLY HAVE COMMENDED ITSELF AS A STATE
POLICY.  HOWEVER, WE MAY NOTE SOME READILY APPARENT DIFFERENCES BETWEEN
THE PRACTICES WHICH SUPPORT THE STATE'S DIFFERENTIATION AND THEREBY THE
POWER ASSERTED BY THE STATE. 

TRADING STAMPS ARE GIVEN TO CASH CUSTOMERS "ACROSS THE BOARD,"
NAMELY, THE NUMBER OF STAMPS VARIES DIRECTLY WITH THE TOTAL COST OF
GOODS PURCHASED.  SAFEWAY'S PRICE-CUTTING, HOWEVER, WAS SELECTIVE. 
THIS DIFFERENCE IS VITAL IN THE CONTEXT OF THIS ACT.  ONE OF THE CHIEF
AIMS OF STATE LAWS PROHIBITING SALES BELOW COST WAS TO PUT AN END TO
"LOSS-LEADER" SELLING.  THE SELLING OF SELECTED GOODS AT A LOSS IN
ORDER TO LURE CUSTOMERS INTO THE STORE IS DEEMED NOT ONLY A DESTRUCTIVE
MEANS OF COMPETITION; IT ALSO PLAYS ON THE GULLIBILITY OF CUSTOMERS BY
LEADING THEM TO EXPECT WHAT GENERALLY IS NOT TRUE, NAMELY, THAT A STORE
WHICH OFFERS SUCH AN AMAZING BARGAIN IS FULL OF OTHER SUCH BARGAINS. 
(FN5)  CLEARLY THERE IS A REASONABLE BASIS FOR A CONCLUSION THAT
SELECTIVE PRICE CUTS TEND TO PERPETUATE THIS ABUSE WHEREAS THE USE OF
TRADING STAMPS DOES NOT. 

THIS DIFFERENCE ALONE WOULD BE ENOUGH TO REQUIRE AFFIRMANCE.  IT IS
REINFORCED BY OTHER TENABLE GROUNDS FOR DISTINCTION.  THERE WAS A BASIS
IN EVIDENCE FOR THE VIEW THAT THE USE OF TRADING STAMPS HAS AN ENTIRELY
DIFFERENT IMPACT ON THE CONSUMING MARKET THAN DO PRICE CUTS.  WHEN
PRICES ARE THE SAME CUSTOMERS TEND TO GO TO THE STORE OFFERING TRADING
STAMPS.  BUT WHEN PRICES ARE CUT TO THE EXTENT OF THE VALUE OF THE
TRADING STAMP THE STAMPS LOSE THEIR LURE AND LOWER PRICES PROVE A MORE
POTENT ATTRACTION.  ON THE BASIS OF THIS NOT UNREASONABLE BELIEF AS TO
THE ECONOMICS OF THE HIGHLY COMPETITIVE, LOW-PROFIT-MARGIN RETAIL
GROCERY BUSINESS, OKLAHOMA COULD WELL HAVE CONCLUDED THAT ITS CHOICE
WAS TO PROVIDE THAT ALL USE A CASH DISCOUNT SYSTEM OR NONE COULD DO SO.
(FN6)  SUCH A VIEW OF THE ECONOMIC ASPECTS OF THE PROBLEM AFFORDS AN
AMPLE BASIS FOR THE LEGISLATIVE JUDGMENT ENFORCED BY THE COURT BELOW. 

CERTAINLY THIS COURT WILL NOT INTERPOSE ITS OWN ECONOMIC VIEWS OR
GUESSES WHEN THE STATE HAS MADE ITS CHOICE. 

"THE FOURTEENTH AMENDMENT ENJOINS THE 'EQUAL PROTECTION OF THE LAWS,'
AND LAWS ARE NOT ABSTRACT PROPOSITIONS.  THEY DO NOT RELATE TO ABSTRACT
UNITS A, B, AND C, BUT ARE EXPRESSIONS OF POLICY ARISING OUT OF
SPECIFIC DIFFICULTIES, ADDRESSED TO THE ATTAINMENT OF SPECIFIC ENDS BY
THE USE OF SPECIFIC REMEDIES.  THE CONSTITUTION DOES NOT REQUIRE THINGS
WHICH ARE DIFFERENT IN FACT OR OPINION TO BE TREATED IN LAW AS THOUGH
THEY WERE THE SAME."  TIGNER V. TEXAS, 310 U.S. 141, 147. 

WE ARE NOT CONCERNED WITH THE SOUNDNESS OF THE DISTINCTIONS DRAWN. 
IT IS ENOUGH THAT IT IS OPEN TO OKLAHOMA TO BELIEVE THEM TO BE VALID AS
THE BASIS OF A POLICY FOR ITS PEOPLE.  (FN7)  AFFIRMED. 

FN1  THE OKLAHOMA SUPREME COURT SAID: 

"IN THIS CONNECTION OUR ATTENTION HAS BEEN CALLED TO THE RECENT CASE
(10-4-57) OF STATE BY CLARK V. WOLKOFF, MINN., 85 N.W.2D 401, 403,
WHEREIN IT WAS HELD THAT 'IF A MERCHANT IN GOOD FAITH SETS THE PRICE OF
AN ARTICLE ON THE BASIS OF A COMPETITOR'S PRICE, WHICH PRICE HE IN GOOD
FAITH BELIEVES TO BE A LEGAL PRICE, THERE IS NO VIOLATION,' WHICH
CLEARLY IS NOT THE CASE HEREIN.  IN THE INSTANT CASE, SAFEWAY OBVIOUSLY
AND ADMITTEDLY DID NOT, IN GOOD FAITH, SET THE PRICE OF ITS ARTICLES
WHICH WERE SUBJECT TO THE UNFAIR SALES ACT ON THE BASIS OF ITS
COMPETITORS' PRICES, WHICH IT IN GOOD FAITH BELIEVED TO BE LEGAL PRICES
UNDER THE UNFAIR SALES ACT, BUT ON THE CONTRARY IT SET ILLEGAL PRICES
FOR THE SOLE PURPOSE OF MEETING PRICES OF ITS COMPETITORS, WHICH IT
THOUGHT TO BE ILLEGAL."  322 P.2D, AT 181. 

FN2  THE LATEST CHAPTER IN TRADING STAMP HISTORY WAS RECOUNTED IN THE
LONDON ECONOMIST MAY 30, 1959, AT P. 850: 

"IN COLORADO A PROPOSAL TO TAX THE STAMPS BROUGHT BATTALIONS OF
HOUSEWIVES TO THE STATE CAPITAL.  ONE OF ITS ORIGINAL SPONSORS CHANGED
HIS MIND WHEN HIS OWN MOTHER THREATENED TO CAMPAIGN AGAINST HIS RE
ELECTION IF HE DID NOT ALTER HIS STAND.  THE NEWEST TWIST TO THE
TRADING STAMP STORY IS THAT THEY CAN NOW BE EXCHANGED, IN THE EAST, FOR
A THEATRE SEAT, EVEN, AFTER JULY 12TH, FOR ONE FOR 'MY FAIR LADY.' 
THIS WILL TAKE, HOWEVER THE STAMPS ACCUMULATED ON NEARLY $700 WORTH OF
PURCHASES - ABOUT WHAT IT COSTS TO FEED A FAMILY FOR FIVE MONTHS." 
FN3  SAFEWAY, IN FACT, DID OFFER ITS OWN CASH DISCOUNT COUPONS DURING
THE COURSE OF THIS LITIGATION. 

FN4  THIS COURT IN OTHER CONTEXTS HAS UPHELD, AGAINST A CHALLENGE
BASED ON THE FOURTEENTH AMENDMENT, STATE TAX LAWS WHICH DISCRIMINATE
AGAINST THE USE OF TRADING STAMPS.  RAST V. VAN DEMAN & LEWIS CO., 240
U.S. 342; TANNER V. LITTLE, 240 U.S. 369; PITNEY V. WASHINGTON, 240
U.S. 387. 

FN5  SEE THE ARTICLE BY MR. BRANDEIS, AS HE THEN WAS, IN THE NOVEMBER
15, 1913, ISSUE OF HARPER'S WEEKLY, AT P. 10. 

FN6  THIS WOULD COME ABOUT IF THE DEALER USING TRADING STAMPS WERE
ALLOWED TO MEET THE LOWERED PRICE, OR IF, BY BEING REQUIRED TO DROP
TRADING STAMPS, THE OTHER DEALER WERE FORCED TO RAISE PRICES.  IT IS
CONCEIVABLE THAT A MATHEMATICAL FORMULA MIGHT BE DEVELOPED TO EQUALIZE
THE USE OF TRADING STAMPS AND PRICE CUTS.  BUT CERTAINLY THE
CONSTITUTION DOES NOT PLACE SUCH A COMPLEX AND, AT BEST, UNCERTAIN AND
SPECULATIVE BURDEN ON THE STATES. 

FN7  APPELLANT ALSO CLAIMS THAT THE OKLAHOMA LAW IS PRE-EMPTED BY
FEDERAL ANTITRUST LAWS.  HOWEVER, THIS CLAIM WAS NOT MADE BELOW. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERTAION OR DECISION OF
THIS CASE
..END :



















PALERMO V. UNITED STATES 360 U.S. 343 


NO. 471.  ARGUED APRIL 28, 1959.  - DECIDED JUNE 22, 1959.  - 258 F.2D
397, AFFIRMED. 


DURING THE TRIAL IN A FEDERAL DISTRICT COURT AT WHICH PETITIONER WAS
CONVICTED OF KNOWINGLY AND WILLFULLY EVADING THE PAYMENT OF INCOME
TAXES FOR THE YEARS 1950, 1951 AND 1952, AN IMPORTANT ISSUE WAS WHETHER
HIS HANDWRITTEN RECORD OF DIVIDENDS RECEIVED IN 1951 AND 1952 HAD BEEN
GIVEN TO AN ACCOUNTING FIRM WHILE IT WAS PREPARING HIS RETURNS FOR
THOSE YEARS RATHER THAN IN 1953, AFTER REVENUE AGENTS HAD BEGUN
INVESTIGATING HIS RETURNS.  TO IMPEACH THE TESTIMONY OF A PARTNER IN
THE ACCOUNTING FIRM THAT THEY HAD NOT RECEIVED THIS RECORD UNTIL 1953,
PETITIONER CALLED FOR AND OBTAINED THE PRODUCTION OF CERTAIN DOCUMENTS
IN THE POSSESSION OF THE GOVERNMENT; BUT HE WAS DENIED PRODUCTION OF A
600-WORD MEMORANDUM SUMMARIZING PARTS OF A 3 1/2-HOUR INTERROGATION OF
THE WITNESS BY A GOVERNMENT AGENT.  HELD:  SUCH MEMORANDUM WAS NOT A
"STATEMENT" OF THE KIND REQUIRED TO BE PRODUCED UNDER THE SO-CALLED
JENCKS ACT, 18 U.S.C. SEC. 3500; ITS PRODUCTION WAS PROPERLY DENIED;
AND THE CONVICTION IS SUSTAINED.  PP. 343-356. 

PALERMO V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF KNOWINGLY AND WILLFULLY EVADING THE
PAYMENT OF INCOME TAXES FOR THE YEARS 1950, 1951 AND 1952.  A
SUBSTANTIAL PART OF THE ALLEGED EVASION WAS FAILURE TO REPORT INCOME
FROM DIVIDENDS.  AMONG THE GOVERNMENT'S EXHIBITS AT TRIAL WAS A RECORD,
PRESUMABLY CONTEMPORANEOUS AND IN THE PETITIONER'S HANDWRITING, OF
DIVIDENDS RECEIVED DURING 1951 AND 1952.  THIS RECORD REFLECTED AN
AMOUNT OF DIVIDEND INCOME FOR 1951 SUBSTANTIALLY LARGER THAN THAT
REPORTED ON THE 1951 RETURN.  PETITIONER CONTENDED THAT THIS RECORD HAD
BEEN TURNED OVER TO THE ACCOUNTING FIRM WHICH REGULARLY PREPARED HIS
RETURN, ARTHUR R. SANFILIPPO & CO., IN EARLY 1952 FOR USE IN PREPARING
HIS 1951 RETURN, BUT THAT THE FIGURES HAD NOT BEEN ACCURATELY ENTERED
ON THE RETURN BY THE ACCOUNTANTS.  THE GOVERNMENT'S CONTENTION WAS THAT
THE RECORD HAD NOT BEEN GIVEN TO THE ACCOUNTING FIRM UNTIL EARLY 1953,
SUBSEQUENT TO THE INITIATION OF THE INVESTIGATION OF PETITIONER'S TAX
AFFAIRS AND LONG AFTER THE FILING OF THE 1951 RETURN.  THE TIME AT
WHICH THE RECORD HAD BEEN GIVEN TO THE ACCOUNTANTS THUS BECAME DIRECTLY
RELEVANT TO THE ISSUE OF CRIMINAL INTENT IN THE CHARGE AGAINST THE
PETITIONER.  ARTHUR R. SANFILIPPO, AN IMPORTANT GOVERNMENT WITNESS AND
THE PRINCIPAL PARTNER IN THE ACCOUNTING FIRM, TESTIFIED THAT HIS FIRM
HAD NOT RECEIVED THE HANDWRITTEN RECORD OF DIVIDEND INCOME UNTIL EARLY
1953. 

PRIOR TO THE TRIAL, ON JULY 16, 1956, DURING THE COURT OF AN
INTERROGATION BY AGENTS OF THE INTERNAL REVENUE SERVICE, SANFILIPPO HAD
BEEN UNABLE TO RECALL WHEN THE DIVIDEND RECORD HAD BEEN RECEIVED.  MORE
THAN A MONTH LATER, AUGUST 23, 1956, SANFILIPPO HAD MET WITH REVENUE
AGENTS TO VERIFY AND SIGN THE TRANSCRIPT OF HIS EARLIER TESTIMONY.  AT
THIS MEETING HE EXECUTED A SUPPLEMENTARY AFFIDAVIT RECITING THAT HE
WISHED TO CLARIFY HIS ORIGINAL ANSWERS AND THAT HE REMEMBERED THAT HIS
FIRM HAD NOT RECEIVED THE DIVIDEND RECORD UNTIL AFTER REVENUE AGENTS
HAD BEGUN THEIR INVESTIGATION OF PETITIONER'S TAX RETURNS.  A
MEMORANDUM OF THE CONFERENCE AT WHICH THIS AFFIDAVIT WAS EXECUTED WAS
MADE BY ONE OF THE AGENTS PRESENT.  ON CROSS-EXAMINATION OF SANFILIPPO
THE DEFENSE DEMANDED AND RECEIVED VARIOUS DOCUMENTS INCLUDING THE
TRANSCRIPT OF THE JULY 16 INTERROGATION AND THE AUGUST 23 AFFIDAVIT. 
THE DEFENSE ALSO REQUESTED PRODUCTION OF ANY MEMORANDA, OR OF ANY PART
THEREOF SUMMARIZING WHAT SANFILIPPO HAD SAID, WHICH HAD BEEN MADE OF
THE AUGUST 23 CONFERENCE.  THE TRIAL JUDGE DENIED THIS REQUEST ON THE
GROUND THAT THE ACT OF SEPTEMBER 2, 1957, 71 STAT. 595, 18 U.S.C. SEC.
3500 - THE SO-CALLED "JENCKS" ACT - GOVERNING THE PRODUCTION OF
STATEMENTS MADE TO GOVERNMENT AGENTS BY GOVERNMENT WITNESSES, PRECLUDED
PRODUCTION OF THE REQUESTED MEMORANDUM SINCE IT WAS NOT WITHIN THE
DEFINITION OF "STATEMENT" IN (E) OF THE ACT.  (FN1)  THE COURT OF
APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  258 F.2D 397.  TOGETHER WITH
SEVERAL OTHER CASES RAISING JENCKS ACT PROBLEMS, WE GRANTED CERTIORARI,
358 U.S. 905, TO DETERMINE THE SCOPE AND MEANING OF THIS NEW STATUTE. 

ACCURATE ANALYSIS OF THESE PROBLEMS AS A BASIS OF THEIR APPROPRIATE
SOLUTION REQUIRES DUE APPRECIATION OF THE BACKGROUND AGAINST WHICH THE
STATUTORY TERMS MUST BE PROJECTED. 

EXERCISING OUR POWER, IN THE ABSENCE OF STATUTORY PROVISION, TO
PRESCRIBE PROCEDURES FOR THE ADMINISTRATION OF JUSTICE IN THE FEDERAL
COURTS, THIS COURT, ON JUNE 3, 1957, IN JENCKS V. UNITED STATES, 353
U.S. 657, DECIDED THAT THE DEFENSE IN A FEDERAL CRIMINAL PROSECUTION
WAS ENTITLED, UNDER CERTAIN CIRCUMSTANCES, TO OBTAIN, FOR IMPEACHMENT
PURPOSES, STATEMENTS WHICH HAD BEEN MADE TO GOVERNMENT AGENTS BY
GOVERNMENT WITNESSES.  THESE STATEMENTS WERE THEREFORE TO BE TURNED
OVER TO THE DEFENSE AT THE TIME OF CROSS-EXAMINATION IF THEIR CONTENTS
RELATED TO THE SUBJECT MATTER OF THE WITNESS' DIRECT TESTIMONY, AND IF
A DEMAND HAD BEEN MADE FOR SPECIFIC STATEMENTS WHICH HAD BEEN WRITTEN
BY THE WITNESS OR, IF ORALLY MADE, AS RECORDED BY AGENTS OF THE
GOVERNMENT.  WE ALSO HELD THAT THE TRIAL JUDGE WAS NOT TO EXAMINE THE
STATEMENTS TO DETERMINE IF THEY CONTAINED MATERIAL INCONSISTENT WITH
THE TESTIMONY OF THE WITNESS BEFORE DECIDING WHETHER HE WOULD TURN THEM
OVER TO THE DEFENSE.  ONCE THE STATEMENTS HAD BEEN SHOWN TO CONTAIN
RELATED MATERIAL ONLY THE DEFENSE WAS ADEQUATELY EQUIPPED TO DECIDE
WHETHER THEY HAD VALUE FOR IMPEACHMENT.  THIS DECISION ONLY CONCERNED
PRODUCTION AND THEREFORE DID NOT PURPORT TO MODIFY THE LAWS OF EVIDENCE
GOVERNING THE ADMISSIBILITY OF PRIOR STATEMENTS OF A WITNESS. 

THE DECISION PROMPTLY GAVE RISE TO SHARP CONTROVERSY AND CONCERN. 
THE DAY FOLLOWING OUR OPINION THE HOUSE OF REPRESENTATIVES WAS TOLD
THAT THE DECISION IN JENCKS POSED A SERIOUS PROBLEM OF NATIONAL
SECURITY AND THAT LEGISLATION WOULD BE INTRODUCED.  103 CONG.  REC.
8290.  THE SAME DAY H.R. 7915, THE FIRST OF ELEVEN HOUSE BILLS DEALING
WITH WHAT BECAME OF THE JENCKS PROBLEM, WAS INTRODUCED IN THE HOUSE. 
(FN2)  DEFENDANTS' COUNSEL BEGAN TO INVOKE THE JENCKS DECISION TO
JUSTIFY DEMANDS FOR PRODUCTION FAR MORE SWEEPING THAN THAT INVOLVED IN
JENCKS, AND UNDER CIRCUMSTANCES FAR REMOVED FROM THOSE OF THAT CASE,
AND SOME FEDERAL TRIAL JUDGES ACCEDED TO THOSE EXCESSIVE DEMANDS. 
(FN3)  THE DEPARTMENT OF JUSTICE, CONCERNED OVER THESE RAPID INTRUSIONS
OF JENCKS INTO OFTEN TOTALLY UNRELATED AREAS, DRAFTED LEGISLATION TO
CLARIFY AND DELIMIT THE REACH OF JENCKS.  SEE 103 CONG. REC. 15781.  ON
JUNE 24, 1957, THIS LEGISLATION WAS INTORDUCED INTO THE SENATE BY
SENATOR O'MAHONEY ACTING FOR HIMSELF AND SEVERAL OTHER SENATORS.  103
CONG. REC.  10057.  AFTER STUDY BY A SUBCOMMITTEE OF THE JUDICIARY
COMMITTEE THE BILL WAS REPORTED OUT, 103 CONG. REC. 10601, THEN
WITHDRAWN AND A COMPLETELY NEW MEASURE SUBSTITUTED.  103 CONG. REC.
14913.  WHEN THE BILL REACHED THE FLOOR FOR DEBATE SENATOR O'MAHONEY
PROPOSED AN AMENDMENT IN THE NATURE OF A SUBSTITUTE WHICH WAS ADOPTED,
103 CONG. REC. 15938, AND THE BILL PASSED THE SENATE ON AUGUST 26. 
IBID.  IN THE HOUSE THE ORIGINAL H.R. 7915, AFTER BEING AMENDED IN
COMMITTEE, SEE 103 CONG. REC. 10925, WAS PASSED ON AUGUST 27, 103 CONG.
REC. 16130, AND THEN SUBSTITUTED FOR THE TEXT OF THE SENATE BILL.  103
CONG. REC. 16131.  THE TWO VERSIONS WENT TO CONFERENCE.  THE CONFERENCE
REPORT WAS AGREED TO BY THE SENATE ON AUGUST 29, 103 CONG. REC. 16490,
AND BY THE HOUSE THE NEXT DAY.  103 CONG. REC. 16742.  THE ACT WAS
APPROVED ON SEPTEMBER 2, AND BECAME LAW AS SEC. 3500 OF THE CRIMINAL
CODE, 18 U.S.C.  (FN4) CONGRESS HAD DETERMINED TO EXERCISE ITS POWER TO
DEFINE THE RULES THAT SHOULD GOVERN IN THIS PARTICULAR AREA IN THE
TRIAL OF CRIMINAL CASES INSTEAD OF LEAVING THE MATTER TO THE LAWMAKING
OF THE COURTS. 

IN ALMOST EVERY ENACTMENT THERE ARE GAPS TO BE FILLED AND AMBIGUITIES
TO BE RESOLVED BY JUDICIAL CONSTRUCTION.  THIS STATUTE IS NOT FREE FROM
THEM.  HERE, HOWEVER, THE DETAILED PARTICULARITY WITH WHICH CONGRESS
HAS SPOKEN HAS NARROWED THE SCOPE FOR NEEDFUL JUDICIAL INTERPRETATION
TO AN UNUSUAL DEGREE.  THE STATUTE CLEARLY DEFINES PROCEDURES AND
PLAINLY INDICATES THE CIRCUMSTANCES FOR THEIR APPLICATION.  SINCE THIS
CASE IS THE FIRST CALLING FOR AUTHORITATIVE EXPOSITION OF AN ACT THAT
FREQUENTLY COMES INTO USE IN FEDERAL CRIMINAL PROSECUTIONS WE DEEM IT
APPROPRIATE TO EXPLICATE THE CONSTRUCTION OF THE STATUTE REQUIRED BY
THE CIRCUMSTANCES OF THIS CASE. 

1.  SUBSECTION (A) REQUIRES THAT NO STATEMENT OF A GOVERNMENT WITNESS
MADE TO AN AGENT OF THE GOVERNMENT AND IN THE GOVERNMENT'S POSSESSION
SHALL BE TURNED OVER TO THE DEFENSE UNTIL THE WITNESS HAS TESTIFIED ON
DIRECT EXAMINATION.  THIS SECTION MANIFESTS THE GENERAL STATUTORY AIM
TO RESTRICT THE USE OF SUCH STATEMENTS TO IMPEACHMENT.  SUBSECTIONS
(B), (C) AND (D) PROVIDE PROCEDURES FOR THE PRODUCTION OF "STATEMENTS,"
AND FOR THE CONSEQUENCES TO THE GOVERNMENT OF FAILURE TO PRODUCE. 
SUBSECTION (E) RESTRICTIVELY DEFINES WITH PARTICULARITY THE TERM
"STATEMENT" AS USED IN THE THREE PRECEDING SECTIONS.  THE SUGGESTION
THAT THE DETAILED STATUTORY PROCEDURES RESTRICT ONLY THE PRODUCTION OF
THE TYPE OF STATEMENT DESCRIBED IN SUBSECTION (E), LEAVING ALL OTHER
STATEMENTS, E.G., NON-VERBATIM, NON-CONTEMPORANEOUS RECORDS OF ORAL
STATEMENTS, TO BE PRODUCED UNDER PRE-EXISTING RULES OF PROCEDURE AS IF
THE STATUTE HAD NOT BEEN PASSED AT ALL, FLOUTS THE WHOLE HISTORY AND
PURPOSE OF THE ENACTMENT.  IT WOULD MOCK CONGRESS TO ATTRIBUTE TO IT AN
INTENTION TO SURROUND THE PRODUCTION OF THE CAREFULLY RESTRICTED AND
MOST TRUSTWORTHY CLASS OF STATEMENTS WITH DETAILED PROCEDURAL
SAFEGUARDS, WHILE ALLOWING MORE DUBIOUS AND LESS RELIABLE DOCUMENTS A
MORE FAVORED LEGAL STATUS, FREE FROM SAFEGUARDS IN THE TOURNAMENT OF
TRIALS.  TO STATE SUCH A CONSTRUCTION DEMONSTRATES ITS IRRATIONALITY;
THE AUTHORITATIVE LEGISLATIVE HISTORY PRECLUDES ITS ACCEPTANCE. 

TO BE SURE, THE STATUTE DOES NOT, IN SO MANY WORDS, STATE THAT IT IS
THE EXCLUSIVE, LIMITING MEANS OF COMPELLING FOR CROSS-EXAMINATION
PURPOSES THE PRODUCTION OF STATEMENTS OF A GOVERNMENT WITNESS TO AN
AGENT OF THE GOVERNMENT.  BUT SOME THINGS TOO CLEARLY EVINCE A
LEGISLATIVE ENACTMENT TO CALL FOR A REDUNDANCY OF UTTERANCE.  ONE OF
THE MOST IMPORTANT MOTIVE FORCES BEHIND THE ENACTMENT OF THIS
LEGISLATION WAS THE FEAR THAT AN EXPANSIVE READING OF JENCKS WOULD
COMPEL THE UNDISCRIMINATING PRODUCTION OF AGENT'S SUMMARIES OF
INTERVIEWS REGARDLESS OF THEIR CHARACTER OR COMPLETENESS.  NOT ONLY WAS
IT STRONGLY FEARED THAT DISCLOSURE OF MEMORANDA CONTAINING THE
INVESTIGATIVE AGENT'S INTERPRETATIONS AND IMPRESSIONS MIGHT REVEAL THE
INNER WORKINGS OF THE INVESTIGATIVE PROCESS AND THEREBY INJURE THE
NATIONAL INTEREST, BUT IT WAS FELT TO BE GROSSLY UNFAIR TO ALLOW THE
DEFENSE TO USE STATEMENTS TO IMPEACH A WITNESS WHICH COULD NOT FAIRLY
BE SAID TO BE THE WITNESS' OWN RATHER THAN THE PRODUCT OF THE
INVESTIGATOR'S SELECTIONS, INTERPRETATIONS AND INTERPOLATIONS.  THE
COMMITTEE REPORTS OF BOTH HOUSES AND THE FLOOR DEBATES CLEARLY MANIFEST
THE INTENTION TO AVOID THESE DANGERS BY RESTRICTING PRODUCTION TO THOSE
STATEMENTS SPECIFICALLY DEFINED IN THE BILL.  (FN5) INDEED BOTH THE
HOUSE AND SENATE BILLS AS THEY WENT TO CONFERENCE EXPLICITLY SO
STATED.  SEE 103 CONG. REC. 16130; 103 CONG. REC. 16125.  NOTHING IN
THE CONFERENCE REPORTS OR THE LIMITED DEBATE FOLLOWING CONFERENCE
INTIMATED THE SLIGHTEST INTENTION TO CHANGE THE EXCLUSIVE NATURE OF THE
MEASURE.  INDEED THE REPORTS AND DEBATE PROCEEDED ON THE EXPLICIT
ASSUMPTION THAT THE BILL RETAINED AS A MAJOR PURPOSE THE BARRING OF ALL
STATEMENTS NOT SPECIFICALLY DEFINED.  (FN6)  THE PURPOSE OF THE ACT,
ITS FAIR READING AND ITS OVERWHELMING LEGISLATIVE HISTORY COMPEL US TO
HOLD THAT STATEMENTS OF A GOVERNMENT WITNESS MADE TO AN AGENT OF THE
GOVERNMENT WHICH CANNOT BE PRODUCED UNDER THE TERMS OF 18 U.S.C. SEC.
3500 CANNOT BE PRODUCED AT ALL. 

2.  SINCE THE STATUTORY PROCEDURES ARE EXCLUSIVE THEY CONSTITUTE THE
RULE OF LAW GOVERNING THE PRODUCTION OF THE STATEMENT AT ISSUE IN THIS
CASE AND IT BECOMES NECESSARY TO DETERMINE THE SCOPE AND MEANING OF THE
STATUTORY DEFINITION OF "STATEMENT" CONTAINED IN (E).  CLAUSE (1) OF
(E) PERMITS THE PRODUCTION OF "A WRITTEN STATEMENT MADE BY SAID WITNESS
AND SIGNED OR OTHERWISE ADOPTED OR APPROVED BY HIM  ...  ."  ALTHOUGH
SOME SITUATIONS MAY ARISE, CREATING PERIPHERAL PROBLEMS OF
CONSTRUCTION, ITS IMPORT IS CLEAR.  CLAUSE (2) WIDENS THE DEFINITION OF
"STATEMENT" TO INCLUDE "A STENOGRAPHIC, MECHANICAL, ELECTRICAL, OR
OTHER RECORDING, OR A TRANSCRIPTION THEREOF, WHICH IS A SUBSTANTIALLY
VERBATIM RECITAL OF AN ORAL STATEMENT MADE BY SAID WITNESS TO AN AGENT
OF THE GOVERNMENT AND RECORDED CONTEMPORANEOUSLY WITH THE MAKING OF
SUCH ORAL STATEMENT."  CLEARLY THIS PROVISION ALLOWS THE PRODUCTION OF
MECHANICAL OR STENOGRAPHIC RECORDINGS OF ORAL STATEMENTS, EVEN THOUGH
LATER TRANSCRIBED.  A PRELIMINARY PROBLEM FOR DETERMINING THAT THE
STATEMENT NOW BEFORE US MAY BE PRODUCED IS WHETHER THE STATUTORY PHRASE
"OTHER RECORDING" ALLOWS AN EVEN WIDER SCOPE FOR PRODUCTION.  WE FIND
THE LEGISLATIVE HISTORY PERSUASIVE THAT THE STATUTE WAS MEANT TO
ENCOMPASS MORE THAN MERE AUTOMATIC REPRODUCTIONS OR ORAL STATEMENTS. 
(FN7) 

HOWEVER, SUCH A FINDING IS ONLY THE BEGINNING OF THE TASK OF
CONSTRUCTION.  IT IS CLEAR THAT CONGRESS WAS CONCERNED THAT ONLY THOSE
STATEMENTS WHICH COULD PROPERLY BE CALLED THE WITNESS' OWN WORDS SHOULD
BE MADE AVAILABLE TO THE DEFENSE FOR PURPOSES OF IMPEACHMENT.  (FN8)
IT WAS IMPORTANT THAT THE STATEMENT COULD FAIRLY BE DEEMED TO REFLECT
FULLY AND WITHOUT DISTORTION WHAT HAD BEEN SAID TO THE GOVERNMENT
AGENT.  DISTORTION CAN BE A PRODUCT OF SELECTIVITY AS WELL AS THE
CONSCIOUS OR INADVERTENT INFUSION OF THE RECORDER'S OPINIONS OR
IMPRESSIONS.  IT IS CLEAR FROM THE CONTINUOUS CONGRESSIONAL EMPHASIS ON
"SUBSTANTIALLY VERBATIM RECITAL," AND "CONTINUOUS, NARRATIVE STATEMENTS
MADE BY THE WITNESS RECORDED VERBATIM, OR NEARLY SO  ...  ," SEE
APPENDIX B, POST, P. 358, THAT THE LEGISLATION WAS DESIGNED TO
ELIMINATE THE DANGER OF DISTORTION AND MISREPRESENTATION INHERENT IN A
REPORT WHICH MERELY SELECTS PORTIONS, ALBEIT ACCURATELY, FROM A LENGTHY
ORAL RECITAL.  QUOTING OUT OF CONTEXT IS ONE OF THE MOST FREQUENT AND
POWERFUL MODES OF MISQUOTATION.  WE THINK IT CONSISTENT WITH THIS
LEGISLATIVE HISTORY, (FN9) AND WITH THE GENERALLY RESTRICTIVE TERMS OF
THE STATUTORY PROVISIONS, TO REQUIRE THAT SUMMARIES OF AN ORAL
STATEMENT WHICH EVIDENCE SUBSTANTIAL SELECTION OF MATERIAL, OR WHICH
WERE PREPARED AFTER THE INTERVIEW WITHOUT THE AID OF COMPLETE NOTES,
AND HENCE REST ON THE MEMORY OF THE AGENT, ARE NOT TO BE PRODUCED. 
NEITHER, OF COURSE, ARE STATEMENTS WHICH CONTAIN THE AGENT'S
INTERPRETATIONS OR IMPRESSIONS.  IN EXPOUNDING THIS STANDARD WE DO NOT
WISH TO CREATE THE IMPRESSION OF A "DELUSIVE EXACTNESS."  THE POSSIBLE
PERMUTATIONS OF FACT AND CIRCUMSTANCE ARE MYRIAD.  TRIAL COURTS WILL BE
GUIDED BY THE INDICATED STANDARD, INFORMED BY FIDELITY TO THE
CONGRESSIONAL PURPOSES WE HAVE OUTLINED.  THERE IS NOTHING IMPALPABLE
ABOUT THESE PROVISIONS.  SINCE WE FEEL THE STATUTORY STANDARD HAS
GUIDING DEFINITENESS, IT WOULD BE IDLE TO ATTEMPT A MINUTE ENUMERATION
OF PARTICULAR SITUATIONS TO WHICH IT IS TO BE APPLIED.  SUCH A VAIN
ATTEMPT AT FORECASTING MYRIAD DIVERSITITES WITH MINOR VARIANCE IS AS
FUTILE AND UNCALLED FOR IN THIS AS IN SO MANY OTHER AREAS OF THE LAW. 
THAT IS WHAT THE JUDICIAL PROCESS IS FOR - TO FOLLOW A GENERALLY CLEAR
DIRECTION IN DEALING WITH A NEW DIVERSITY AS IT MAY OCCASIONALLY
ARISE.  FINAL DECISION AS TO PRODUCTION MUST REST, AS IT DOES SO VERY
OFTEN IN PROCEDURAL AND EVIDENTIARY MATTERS, WITHIN THE GOOD SENSE AND
EXPERIENCE OF THE DISTRICT JUDGE GUIDED BY THE STANDARDS WE HAVE
OUTLINED, (FN10) AND SUBJECT TO THE APPROPRIATELY LIMITED REVIEW OF
APPELLATE COURTS.  (FN11) 

3.  THE STATUTE ITSELF PROVIDES NO PROCEDURE FOR MAKING A
DETERMINATION WHETHER A PARTICULAR STATEMENT COMES WITHIN THE TERMS OF
(E) AND THUS MAY BE PRODUCED IF RELATED TO THE SUBJECT MATTER OF THE
WITNESS' TESTIMONY.  ORDINARILY THE DEFENSE DEMAND WILL BE ONLY FOR
THOSE STATEMENTS WHICH SATISFY THE STATUTORY LIMITATIONS.  THUS THE
GOVERNMENT WILL NOT PRODUCE DOCUMENTS CLEARLY BEYOND THE REACH OF THE
STATUTE FOR TO DO SO WOULD NOT BE RESPONSIVE TO THE ORDER OF THE
COURT.  HOWEVER, WHEN IT IS DOUBTFUL WHETHER THE PRODUCTION OF A
PARTICULAR STATEMENT IS COMPELLED BY THE STATUTE, WE APPROVE THE
PRACTICE OF HAVING THE GOVERNMENT SUBMIT THE STATEMENT TO THE TRIAL
JUDGE FOR AN IN CAMERA DETERMINATION.  INDEED, ANY OTHER PROCEDURE
WOULD BE DESTRUCTIVE OF THE STATUTORY PURPOSE.  THE STATUTE GOVERNS THE
PRODUCTION OF DOCUMENTS; IT DOES NOT PURPORT TO AFFECT OR MODIFY THE
RULES OF EVIDENCE REGARDING ADMISSIBILITY AND USE OF STATEMENTS ONCE
PRODUCED.  THE ACT'S MAJOR CONCERN IS WITH LIMITING AND REGULATING
DEFENSE ACCESS TO GOVERNMENT PAPERS, AND IT IS DESIGNED TO DENY SUCH
ACCESS TO THOSE STATEMENTS WHICH DO NOT SATISFY THE REQUIREMENTS OF
(E), OR DO NOT RELATE TO THE SUBJECT MATTER OF THE WITNESS' TESTIMONY. 
IT WOULD INDEED DEFEAT THIS DESIGN TO HOLD THAT THE DEFENSE MAY SEE
STATEMENTS IN ORDER TO ARGUE WHETHER IT SHOULD BE ALLOWED TO SEE THEM. 

IT IS ALSO THE FUNCTION OF THE TRIAL JUDGE TO DECIDE, IN LIGHT OF THE
CIRCUMSTANCES OF EACH CASE, WHAT, IF ANY, EVIDENCE EXTRINSIC TO THE
STATEMENT ITSELF MAY OR MUST BE OFFERED TO PROVE THE NATURE OF THE
STATEMENT.  IN MOST CASES THE ANSWER WILL BE PLAIN FROM THE STATEMENT
ITSELF.  IN OTHERS FURTHER INFORMATION MIGHT BE DEEMED RELEVANT TO
ASSIST THE COURT'S DETERMINATION.  THIS IS A PROBLEM OF THE SOUND AND
FAIR ADMINISTRATION OF A CRIMINAL PROSECUTION AND ITS SOLUTION MUST BE
GUIDED BY THE NEED, REFLECTED IN SO MUCH OF OUR LAW OF EVIDENCE, TO
AVOID NEEDLESS TRIAL OF COLLATERAL AND CONFUSING ISSUES WHILE ASSURING
THE UTMOST FAIRNESS TO A CRIMINAL DEFENDANT.  SEE, E.G., NARDONE V.
UNITED STATES, 308 U.S. 338, 342. 

IN LIGHT OF THESE PRINCIPLES THE CASE BEFORE US IS CLEAR.  BOTH THE
DISTRICT COURT AND THE COURT OF APPEALS CORRECTLY HELD THAT THE SOLE
STANDARD GOVERNING PRODUCTION OF THE AGENT'S MEMORANDUM OF HIS
CONFERENCE WITH SANFILIPPO WAS 18 U.S.C. SEC. 3500.  THE DISTRICT JUDGE
AND A UNANIMOUS COURT OF APPEALS HELD THAT THE STATEMENT WAS NOT WITHIN
THE DEFINITION OF STATEMENT IN (E) AS PROPERLY UNDERSTOOD BY THEM.  WE
HAVE EXAMINED THE STATEMENT AND THE RECORD AND FIND THAT THE
DETERMINATION OF THE TWO COURTS BELOW WAS JUSTIFIED AND THEREFORE MUST
BE SUSTAINED.  (FN12)  IT WOULD BESPEAK A SERIOUS REFLECTION ON THE
CONSCIENCE AND CAPACITY OF THE FEDERAL JUDICIARY IF BOTH A TRIAL JUDGE
AND A COURT OF APPEALS WERE FOUND TO HAVE DISREGARDED THE COMMAND OF
CONGRESS, DULY INTERPRETED, FOR MAKING AVAILABLE A PRIOR STATEMENT OF A
GOVERNMENT WITNESS IN A CASE.  AGAINST SUCH A CONTINGENCY THERE IS
ALWAYS THE SAFEGUARD OF THIS COURT'S REVIEWING POWER.  AFFIRMED. 

FN1  WE REJECT THE GOVERNMENT'S CONTENTION THAT, AT TRIAL, PETITIONER
ASSERTED ONLY THAT THE STATUTE DID NOT COVER HIS REQUEST FOR
PRODUCTION, AND FAILED TO ASSERT THAT, IF THE STATUTE WAS APPLICABLE,
THE MEMORANDUM COULD BE PRODUCED UNDER ITS TERMS.  WE FIND THAT
OBJECTION TO THE INTERPRETATION OF THE STATUTE WAS ADEQUATELY MADE. 

FN2  103 CONG. REC. 8327.  THE OTHER HOUSE BILLS WERE H.R. 8225, 103
CONG. REC. 9572; H.R. 8243, 103 CONG. REC. 9746; H.R. 8335, 103 CONG.
REC. 10181; H.R. NO. 8341, 103 CONG.  REC. 10181; H.R. 8388, 103 CONG.
REC. 10403; H.R. 8393, 103 CONG. REC. 10403; H.R. 8414, 103 CONG. REC.
10547; H.R. 8416, 103 CONG. REC. 10547; H.R. 8423, 103 CONG. REC.
10547; H.R. 8438, 103 CONG. REC. 10589. 

FN3  MANY OF THE CASES IN THE LOWER FEDERAL COURTS AFTER JENCKS AND
PRIOR TO THE ENACTMENT OF THE STATUTE ARE COLLECTED IN THE STATEMENT OF
THE ATTORNEY GENERAL CONTAINED IN H.R. REP. NO. 700, 85TH CONG., 1ST
SESS., AND IN S. REP. NO. 569, 85TH CONG., 1ST SESS.  SEE ALSO S. REP.
NO. 981, 85TH CONG., 1ST SESS.; 103 CONG. REC. 15939-15941. 

FN4  THE STATUTE PROVIDES: 

"(A)  IN ANY CRIMINAL PROSECUTION BROUGHT BY THE UNITED STATES, NO
STATEMENT OR REPORT IN THE POSSESSION OF THE UNITED STATES WHICH WAS
MADE BY A GOVERNMENT WITNESS OR PROSPECTIVE GOVERNMENT WITNESS (OTHER
THAN THE DEFENDANT) TO AN AGENT OF THE GOVERNMENT SHALL BE THE SUBJECT
OF SUBPENA, DISCOVERY, OR INSPECTION UNTIL SAID WITNESS HAS TESTIFIED
ON DIRECT EXAMINATION IN THE TRIAL OF THE CASE. 

"(B)  AFTER A WITNESS CALLED BY THE UNITED STATES HAS TESTIFIED ON
DIRECT EXAMINATION, THE COURT SHALL, ON MOTION OF THE DEFENDANT, ORDER
THE UNITED STATES TO PRODUCE ANY STATEMENT (AS HEREINAFTER DEFINED) OF
THE WITNESS IN THE POSSESSION OF THE UNITED STATES WHICH RELATES TO THE
SUBJECT MATTER AS TO WHICH THE WITNESS HAS TESTIFIED.  IF THE ENTIRE
CONTENTS OF ANY SUCH STATEMENT RELATE TO THE SUBJECT MATTER OF THE
TESTIMONY OF THE WITNESS, THE COURT SHALL ORDER IT TO BE DELIVERED
DIRECTLY TO THE DEFENDANT FOR HIS EXAMINATION AND USE. 

"(C)  IF THE UNITED STATES CLAIMS THAT ANY STATEMENT ORDERED TO BE
PRODUCED UNDER THIS SECTION CONTAINS MATTER WHICH DOES NOT RELATE TO
THE SUBJECT MATTER OF THE TESTIMONY OF THE WITNESS, THE COURT SHALL
ORDER THE UNITED STATES TO DELIVER SUCH STATEMENT FOR THE INSPECTION OF
THE COURT IN CAMERA.  UPON SUCH DELIVERY THE COURT SHALL EXCISE THE
PORTIONS OF SUCH STATEMENT WHICH DO NOT RELATE TO THE SUBJECT MATTER OF
THE TESTIMONY OF THE WITNESS.  WITH SUCH MATERIAL EXCISED, THE COURT
SHALL THEN DIRECT DELIVERY OF SUCH STATEMENT TO THE DEFENDANT FOR HIS
USE.  IF, PURSUANT TO SUCH PROCEDURE, ANY PORTION OF SUCH STATEMENT IS
WITHHELD FROM THE DEFENDANT AND THE DEFENDANT OBJECTS TO SUCH
WITHHOLDING, AND THE TRIAL IS CONTINUED TO AN ADJUDICATION OF THE GUILT
OF THE DEFENDANT, THE ENTIRE TEXT OF SUCH STATEMENT SHALL BE PRESERVED
BY THE UNITED STATES AND, IN THE EVENT THE DEFENDANT APPEALS, SHALL BE
MADE AVAILABLE TO THE APPELLATE COURT FOR THE PURPOSE OF DETERMINING
THE CORRECTNESS OF THE RULING OF THE TRIAL JUDGE.  WHENEVER ANY
STATEMENT IS DELIVERED TO A DEFENDANT PURSUANT TO THIS SECTION, THE
COURT IN ITS DISCRETION, UPON APPLICATION OF SAID DEFENDANT, MAY RECESS
PROCEEDINGS IN THE TRIAL FOR SUCH TIME AS IT MAY DETERMINE TO BE
REASONABLY REQUIRED FOR THE EXAMINATION OF SUCH STATEMENT BY SAID
DEFENDANT AND HIS PREPARATION FOR ITS USE IN THE TRIAL. 

"(D)  IF THE UNITED STATES ELECTS NOT TO COMPLY WITH AN ORDER OF THE
COURT UNDER PARAGRAPH (B) OR (C) HEREOF TO DELIVER TO THE DEFENDANT ANY
SUCH STATEMENT, OR SUCH PORTION THEREOF AS THE COURT MAY DIRECT, THE
COURT SHALL STRIKE FROM THE RECORD THE TESTIMONY OF THE WITNESS, AND
THE TRIAL SHALL PROCEED UNLESS THE COURT IN ITS DISCRETION SHALL
DETERMINE THAT THE INTERESTS OF JUSTICE REQUIRE THAT A MISTRIAL BE
DECLARED. 

"(E)  THE TERM 'STATEMENT,' AS USED IN SUBSECTIONS (B), (C), AND (D)
OF THIS SECTION IN RELATION TO ANY WITNESS CALLED BY THE UNITED STATES,
MEANS: 

"(1)  A WRITTEN STATEMENT MADE BY SAID WITNESS AND SIGNED OR
OTHERWISE ADOPTED OR APPROVED BY HIM; OR: 

"(2)  A STENOGRAPHIC, MECHANICAL, ELECTRICAL, OR OTHER RECORDING, OR
A TRANSCRIPTION THEREOF, WHICH IS A SUBSTANTIALLY VERBATIM RECITAL OF
AN ORAL STATEMENT MADE BY SAID WITNESS TO AN AGENT OF THE GOVERNMENT
AND RECORDED CONTEMPORANEOUSLY WITH THE MAKING OF SUCH ORAL
STATEMENT." 

FN5  SEE, E.G., H.R. REP. NO. 700, 85TH CONG., 1ST SESS.; S. REP. NO.
569, 85TH CONG., 1ST SESS.; S. REP. NO. 981, 85TH CONG., 1ST SESS.  THE
STATEMENTS IN THE REPORTS ARE FREQUENT AND CLEAR.  THERE ARE MANY LIKE
EXPRESSIONS ON THE FLOOR OF BOTH CHAMBERS.  FOR EXAMPLE, THERE WAS A
LENGTHY DEBATE IN THE SENATE OVER AN AMENDMENT WHICH WOULD HAVE
RESTRICTED THE TYPE OF STATEMENT WHICH COULD BE PRODUCED BEYOND THE
LIMITATIONS ALREADY INCORPORATED IN THE SENATE BILL.  THE ENTIRE DEBATE
PROCEEDED ON THE EXPLICIT ASSUMPTION THAT ONLY THOSE STATEMENTS WHICH
WERE ENUMERATED IN THE BILL COULD BE PRODUCED AT ALL.  103 CONG. REC.
15930-15935.  SEE ALSO 103 CONG. REC. 16116.  THERE ARE MANY SIMILAR
EXPRESSIONS DURING THE DEBATES. 

FN6  SEE LEGISLATIVE HISTORY SUMMARIZED IN APPENDIX A, POST, P. 356. 

FN7  SEE LEGISLATIVE HISTORY SUMMARIZED IN APPENDIX B, POST, P. 358. 

FN8  SEE, E.G., 103 CONG. REC. 16739.  SEE ALSO MANY STATEMENTS TO
THE SAME EFFECT IN THE HOUSE AND SENATE REPORTS. 

FN9  SEE LEGISLATIVE MATERIAL CITED AND QUOTED IN APPENDIX B, POST,
P. 358. 

FN10  OF COURSE THE STATUTE DOES NOT PROVIDE THAT INCONSISTENCY
BETWEEN THE STATEMENT AND THE WITNESS' TESTIMONY IS TO BE A RELEVANT
CONSIDERATION.  NEITHER IS IT SIGNIFICANT WHETHER OR NOT THE STATEMENT
IS ADMISSIBLE AS EVIDENCE. 

FN11  THE STATUTE AS INTERPRETED DOES NOT REACH ANY CONSTITUTIONAL
BARRIER.  CONGRESS HAS THE POWER TO PRESCRIBE RULES OF PROCEDURE FOR
THE FEDERAL COURTS, AND HAS FROM THE EARLIEST DAYS EXERCISED THAT
POWER.  SEE 37 HARV. L. REV., AT 1086 AND 1093-1094, FOR A COLLECTION
OF SUCH LEGISLATION.  THE POWER OF THIS COURT TO PRESCRIBE RULES OF
PROCEDURE AND EVIDENCE FOR THE FEDERAL COURTS EXISTS ONLY IN THE
ABSENCE OF A RELEVANT ACT OF CONGRESS.  SEE FUNK V. UNITED STATES, 290
U.S. 371, 382; GORDON V. UNITED STATES, 344 U.S. 414, 418.  MUCH OF THE
LAW OF EVIDENCE AND OF DISCOVERY IS CONCERNED WITH LIMITATIONS ON A
PARTY'S RIGHT TO HAVE ACCESS TO, AND TO ADMIT IN EVIDENCE, MATERIAL
WHICH HAS PROBATIVE FORCE.  IT IS OBVIOUSLY A REASONABLE EXERCISE OF
POWER OVER THE RULES OF PROCEDURE AND EVIDENCE FOR CONGRESS TO
DETERMINE THAT ONLY STATEMENTS OF THE SORT DESCRIBED IN (E) ARE
SUFFICIENTLY RELIABLE OR IMPORTANT FOR PURPOSES OF IMPEACHMENT TO
JUSTIFY A REQUIREMENT THAT THE GOVERNMENT TURN THEM OVER TO THE
DEFENSE. 

FN12  THE STATEMENT CONSISTS OF A BRIEF AGENT'S SUMMARY, OF
APPROXIMATELY 600 WORDS, OF A CONFERENCE LASTING 3 1/2 HOURS.  IT WAS
MADE UP AFTER A CONFERENCE AND CONSISTS OF SEVERAL BRIEF STATEMENTS OF
INFORMATION GIVEN BY SANFILIPPO IN RESPONSE TO QUESTIONS OF THE AGENT. 
THE TYPED AGENT'S MEMORANDUM IS CLEARLY NOT A VIRTUALLY VERBATIM
NARRATIVE OF THE CONFERENCE BUT REPRESENTS THE AGENT'S SELECTION OF
THOSE ITEMS OF INFORMATION DEEMED APPROPRIATE FOR INCLUSION IN THE
MEMORANDUM.  THUS BY APPLYING THE GOVERNING STANDARD SET FORTH AT PP.
352 AND 353, SUPRA, IT IS CLEAR THAT THE LOWER COURTS DID NOT ERR IN
REFUSING TO HAND THE STATEMENT OVER TO THE DEFENSE. 

FOR OPINION OF MR. JUSTICE BRENNAN, JOINED BY THE CHIEF JUSTICE, MR.
JUSTICE BLACK AND MR. JUSTICE DOUGLAS, SEE POST, P. 360. 

                  APPENDIX A TO OPINION OF THE COURT.  SUMMARY OF
LEGISLATIVE HISTORY DEMONSTRATING THE INTENT OF THE CONFERENCE MEASURE
TO RETAIN AS A PRIMARY PURPOSE OF THE ACT A PROHIBITION OF PRODUCTION
OF ALL STATEMENTS NOT DESCRIBED IN SUBSECTION (E).  (SEE PP. 350-351,
ANTE.) 

THE BILLS AS THEY WENT TO CONGRESS CONTAINED EXPLICIT PROVISIONS
MAKING THEM EXCLUSIVE.  FOR EXAMPLE, THE SENATE BILL PROVIDED IN
SUBSECTION (A): 

"IN ANY CRIMINAL PROSECUTION BROUGHT BY THE UNITED STATES, NO
STATEMENT OR REPORT OF A GOVERNMENT WITNESS OR PROSPECTIVE GOVERNMENT
WITNESS (OTHER THAN THE DEFENDANT) MADE TO AN AGENT OF THE GOVERNMENT
WHICH IS IN THE POSSESSION OF THE UNITED STATES SHALL BE THE SUBJECT OF
SUBPENA, OR INSPECTION, EXCEPT, IF PROVIDED IN THE FEDERAL RULES OF
CRIMINAL PROCEDURE, OR AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION." 
103 CONG. REC. 16130. 

THE HOUSE BILL CONTAINED A SIMILAR PROVISION. 

ALTHOUGH THE LAST PHRASE OF THIS SECTION WAS DROPPED OUT WHEN THE
CRIMINAL PROCEDURE, SEE 103 CONG. REC. 16488; H.R. REP. NO. 1271, 85TH
CONG., 1ST SESS., THERE IS NO INDICATION THAT ITS OMISSION WAS INTENDED
TO WORK A SILENT AND RADICAL CHANGE IN THE ENTIRE CONCEPT AND PURPOSE
OF THE ACT.  BOTH THE CONFERENCE REPORT OF THE HOUSE MANAGERS AND THE
FLOOR REMARKS OF THE SENATE CONFEREES ENUMERATE THE PARTICULAR CHANGES
WHICH HAD BEEN MADE TO MEET EARLIER SPECIFIC DIFFERENCES AND
OBJECTIONS.  NO MENTION IS MADE, NOR CAN AN INTIMATION BE FOUND, OF ANY
INTENTION TO CHANGE THE EXCLUSIVE NATURE OF THE MEASURE.  THE HOUSE
CONFERENCE REPORT ENUMERATES THE SPECIFIC CHANGES AND THEN STATES THAT
"TO REMOVE ANY DOUBT AS TO THE KINDS OF STATEMENTS AFFECTED BY THE BILL
AS AGREED TO BY THE CONFEREES, A NEW PARAGRAPH 'E' WAS ADDED  ...
EXPRESSLY DEFINING THE TERM 'STATEMENT.'"  H.R. REP. NO. 1271, 85TH
CONG., 1ST SESS. 3.  IN THE SENATE, SENATOR O'MAHONEY, IN RESPONSE TO A
QUESTION, GAVE THE SPECIFIC CHANGES WHICH HAD BEEN MADE IN THE BILL BY
THE CONFERENCE, AND HE DID NOT GIVE THE SLIGHTEST INDICATION THAT IT
HAD LOST ITS EXCLUSIVE NATURE.  103 CONG. REC. 16487.    WHAT SMALL
DEBATE THERE WAS FOLLOWING THE CONFERENCE REPORTS SUPPORTS THE
CONCLUSION THAT NO CHANGE IN THE EXCLUSIVENESS OF THE BILL WAS
INTENDED.  FOR EXAMPLE, SENATOR O'MAHONEY, INTRODUCING THE CONFERENCE
MEASURE, STATED THAT, "THERE WAS SOME FEAR UPON THE PART OF THE
DEPARTMENT OF JUSTICE THAT THE SENATE BILL WOULD CREATE A GREATER
LATITUDE FOR THE EXAMINATION OF IRRELEVANT REPORTS OF AGENTS.  THE
LANGUAGE WHICH WAS DEVISED BY THE CONFEREES HAS CLEARED UP THE DOUBTS
...  ."  103 CONG. REC. 16487.  SEE ALSO 103 CONG. REC. 16488-16489. 
IN THE HOUSE, REPRESENTATIVE KEATING, ONE OF THE CONFEREES, EXPLAINED
THAT "THE CONFEREES PROVIDED THAT THE ONLY STATEMENTS A DEFENDANT COULD
SEE, AND THEN ONLY IN THE COURTROOM WERE THOSE ACTUALLY SIGNED OR
FORMALLY APPROVED BY THE WITNESS OR A STENOGRAPHIC VERBATIM RECITAL OF
A STATEMENT MADE BY A WITNESS WHICH IS RECORDED CONTEMPORANEOUSLY WITH
THE MAKING OF SUCH ORAL STATEMENT.  IN OTHER WORDS, ONLY THOSE
STATEMENTS NEED BE PRODUCED IN COURT BY THE GOVERNMENT WHICH COULD BE
SHOWN IN COURT TO IMPEACH THE CREDIBILITY OF THE WITNESS."  103 CONG.
REC. 16739.  SEE ALSO 103 CONG. REC. 16742. 

                      APPENDIX B TO OPINION OF THE COURT.  PARTIAL
SUMMARY OF LEGISLATIVE HISTORY BEARING ON THE PROPER CONSTRUCTION OF
SUBSECTION (E).  (SEE PP. 351 AND 352, ANTE.) 

THE ORIGINAL SENATE BILL, AS PASSED BY THE SENATE, ALLOWED THE
PRODUCTION OF "ANY TRANSCRIPTIONS OR RECORDS OF ORAL STATEMENTS MADE BY
THE WITNESS TO AN AGENT OF THE GOVERNMENT  ...  ."  SEE 103 CONG. REC.
16130.  DURING THE COURSE OF THE SENATE DEBATE AN AMENDMENT HAD BEEN
OFFERED TO LIMIT THIS PROVISION TO MECHANICAL TRANSCRIPTIONS OR
RECORDINGS.  SEE 103 CONG. REC. 15930-15931.  THIS AMENDMENT WAS
REJECTED AFTER SENATOR O'MAHONEY, SPONSOR OF THE LEGISLATION, HAD
ARGUED THAT IT WOULD LEAVE THE BILL TOO "LIMITED."  "ALL WE ARE
ASKING," HE STATED, "IS THAT THE RECORDS WHICH ARE RELEVANT AND
COMPETENT, WHICH DEAL WITH THE ORAL STATEMENTS MADE BY GOVERNMENT
WITNESSES WHOM THE GOVERNMENT PUTS ON THE STAND, WITH RESPECT TO THE
MATTERS CONCERNING WHICH THEY TESTIFY, BE MADE AVAILABLE."  103 CONG.
REC. 15932.  THUS THE BILL AS IT LEFT THE SENATE WAS CLEARLY NOT
CONFINED TO AUTOMATIC REPRODUCTIONS OF ORAL STATEMENTS, ALTHOUGH ITS
FURTHER REACH WAS NOT EXPLICITLY DEMARCATED. 

THE HOUSE BILL, AS PASSED, ALLOWED ONLY THE PRODUCTION OF WRITTEN
STATEMENTS SIGNED BY THE WITNESS OR OTHERWISE ADOPTED OR APPROVED.  103
CONG. REC. 16125.  THE PRESENT LANGUAGE EMERGED FROM THE CONFERENCE. 

SENATOR O'MAHONEY, SPONSOR OF THE ORIGINAL SENATE BILL AND ONE OF THE
SENATE CONFEREES, IN SUBMITTING THE CONFERENCE BILL, MADE IT CLEAR THAT
(E) "WOULD INCLUDE A MEMORANDUM MADE BY AN AGENT OF THE GOVERNMENT OF
AN ORAL STATEMENT MADE TO HIM BY A GOVERNMENT WITNESS  ...  ."  103
CONG. REC. 16488.  SENATOR JAVITS THEN ASKED: 

"  ...  WHAT HAS BEEN DONE WITH THE SO-CALLED RECORDS PROVISIONS IS
TO TIE IT DOWN TO THOSE CASES IN WHICH THE AGENT ACTUALLY PRUPORTS TO
MAKE A SUBSTANTIALLY VERBATIM RECITAL OF AN ORAL STATEMENT THAT THE
WITNESS HAS MADE TO HIM - NOT THE AGENT'S OWN COMMENTS OR A RECORDING
OF HIS OWN IDEAS, BUT A SUBSTANTIALLY VERBATIM RECITAL OF AN ORAL
STATEMENT WHICH THE WITNESS HAS MADE TO HIM, AND AS TRANSCRIBED BY HIM;
IS THAT CORRECT?"  IBID. 

SENATOR O'MAHONEY REPLIED, "PRECISELY."  THUS ALTHOUGH THE SENATE
HISTORY INDICATES THAT THE BILL WAS RESTRICTED TO A "SUBSTANTIALLY
VERBATIM RECITAL," IT IS APPARENT THAT THE ACT WAS NOT DESIGNED TO BE
RESTRICTED TO MERE MECHANICAL TRANSCRIPTION. 

THE PROCEEDINGS IN THE HOUSE ARE LESS CLEAR.  IT IS TRUE THAT
REPRESENTATIVE KEATING, ONE OF THE HOUSE CONFEREES, DID SAY THAT ONLY
STENOGRAPHIC VERBATIM RECITALS NEED BE PRODUCED.  103 CONG. REC.
16739.  BUT THIS WAS SAID IN REPLY TO REPRESENTATIVE CELLER'S STATEMENT
THAT THE CONFERENCE MEASURE WAS AS LIBERAL AS THE ORIGINAL SENATE
BILL.  REPRESENTATIVE CELLER WAS ALSO A HOUSE CONFEREE.  THE REPORT OF
THE HOUSE MANAGERS, SIGNED BY ALL THE HOUSE CONFEREES, AFTER POINTING
OUT THAT THE TERM "STATEMENT" HAD BEEN DEFINED IN THE BILL, STATED: 

IT IS BELIEVED THAT THE PROVISIONS OF THE BILL AS AGREED TO BY THE
CONFEREES ARE IN LINE WITH THE STANDARD ENUNCIATED BY JUDGE GEORGE H.
MOORE OF THE EASTERN DISTRICT OF MISSOURI IN  ...  U.S. V. ANDERSON
...  WHICH IS SET FORTH AT PAGE 14552 (SIC) OF THE DAILY CONGRESSIONAL
RECORD OF AUGUST 26, 1957."  H.R. REP. NO. 1271, 85TH CONG., 1ST SESS.
3. 

IN THE OPINION REFERRED TO, JUDGE MOORE HAD EXPLICITLY LIMITED THE
TYPE OF ORAL STATEMENT WHICH COULD BE PRODUCED UNDER THE JENCKS
DECISION TO: 

"  ...  ONLY CONTINUOUS, NARRATIVE STATEMENTS MADE BY THE WITNESS
RECORDED VERBATIM, OR NEARLY SO, AND DOES NOT INCLUDE NOTES MADE DURING
THE COURSE OF AN INVESTIGATION (OR REPORTS COMPILED THEREFROM) WHICH
CONTAIN THE SUBJECTIVE IMPRESSIONS, OPINIONS, OR CONCLUSIONS OF THE
PERSON OR PERSONS MAKING SUCH NOTES."  103 CONG. REC. 15940. 

THIS STANDARD, EXPLICITLY INCORPORATED INTO THE HOUSE REPORT, HAS A
DUAL SIGNIFICANCE.  IT NOT ONLY GOES BEYOND MECHANICAL OR STENOGRAPHIC
STATEMENTS, IN DEFINING THE STATEMENTS WHICH MUST BE MADE AVAILABLE TO
THE DEFENSE, BUT INDICATES THAT ONCE BEYOND THAT POINT A VERY
RESTRICTIVE STANDARD IS TO BE APPLIED. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE DOUGLAS JOIN, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT BUT SEE NO JUSTIFICATION FOR THE COURT'S
RANGING FAR AFIELD OF THE NECESSITIES OF THE CASE IN AN OPINION
ESSAYING OBITER A GENERAL INTERPRETATION OF THE SO-CALLED "JENCKS ACT,"
18 U.S.C. (SUPP. V) SEC. 3500.  MANY MORE CONCRETE CASES MUST BE
ADJUDICATED IN THE DISTRICT COURTS BEFORE WE SHALL BE FAMILIAR WITH ALL
THE PROBLEMS CREATED BY THE STATUTE. 

WE OF THIS COURT, REMOVED AS WE ARE FROM THE TOURNAMENT OF TRIALS,
MUST BE CAREFUL TO GUARD AGAINST PROMULGATING GENERAL PRONOUNCEMENTS
WHICH PREVENT THE TRIAL JUDGES FROM EXERCISING THEIR TRADITIONAL
RESPONSIBILITY.  THE COURT'S OPINION WELL OBSERVES THAT THE HOPE FOR A
FAIR ADMINISTRATION OF THE STATUTE RESTS IN THE FINAL ANALYSIS  WITH
ITS RESPONSIBLE APPLICATION IN THE FEDERAL TRIAL COURTS.  THIS
RESPONSIBILITY OF THE FEDERAL TRIAL JUDGE, IT GOES WITHOUT SAYING, IS
NOT TO BE DELEGATED TO THE PROSECUTOR.  QUESTIONS OF PRODUCTION OF
STATEMENTS ARE NOT TO BE SOLVED THROUGH ONE PARTY'S DETERMINATION THAT
INTERVIEW REPORTS FALL WITHOUT THE STATUTE AND HENCE THAT THEY ARE NOT
TO BE PRODUCED TO DEFENSE COUNSEL OR TO THE TRIAL JUDGE FOR HIS
DETERMINATION AS TO THEIR COVERAGE.  I AM CONFIDENT THAT FEDERAL TRIAL
JUDGES WILL DEVISE PROCEDURAL METHODS WHEREBY THEIR RESPONSIBILITY IS
NOT ABDICATED IN FAVOR OF THE UNILATERAL DETERMINATION OF THE
PROSECUTING ARM OF THE GOVERNMENT. 

CONGRESS HAD NO THOUGHT TO INVADE THE TRADITIONAL DISCRETION OF TRIAL
JUDGES IN EVIDENTIARY MATTERS BEYOND CHECKING EXTRAVAGANT
INTERPRETATIONS OF OUR DECISION IN JENCKS V. UNITED STATES, 353 U.S.
657, WHICH WERE SAID TO HAVE BEEN MADE BY SOME LOWER COURTS.  INDEED
CONGRESS TOOK PARTICULAR PAINS TO MAKE IT CLEAR THAT THE LEGISLATION
"REAFFIRMS" THAT DECISION'S HOLDING THAT A DEFENDANT ON TRIAL IN A
CRIMINAL PROSECUTION IS ENTITLED TO RELEVANT AND COMPETENT REPORTS AND
STATEMENTS IN POSSESSION OF THE GOVERNMENT TOUCHING THE EVENTS AND
ACTIVITIES AS TO WHICH A GOVERNMENT WITNESS HAS TESTIFIED AT THE
TRIAL.  S. REP. NO. 981, 85TH CONG., 1ST SESS., P. 3.  AND SEE H.R.
REP. NO. 700, 85TH CONG., 1ST SESS., PP. 3, 4.  I SEE NO NECESSITY IN
THE CIRCUMSTANCES OF THIS CASE WHICH CALLS FOR A DECISION WHETHER SEC.
3500 IS THE SOLE VEHICLE WHEREBY PRODUCTION OF PRIOR STATEMENTS OF
GOVERNMENT WITNESSES TO GOVERNMENT AGENTS MAY BE MADE TO THE DEFENSE. 
CERTAINLY NOTHING IN THE STATUTE OR ITS LEGISLATIVE HISTORY JUSTIFIES
OUR STRIPPING THE TRIAL JUDGE OF ALL DISCRETION TO MAKE NONQUALIFYING
REPORTS AVAILABLE IN PROPER CASES.  TAKE THE CASE OF A MEMORANDUM OF A
GOVERNMENT AGENT SIMPLY STATING THAT A PERSON INTERROGATED FOR SEVERAL
HOURS AS TO HIS KNOWLEDGE OF THE DEFENDANT'S ALLEGED CRIMINAL
TRANSACTIONS, DENIED ANY KNOWLEDGE OF THEM.  THEN SUPPOSE THAT PERSON
IS CALLED AS A GOVERNMENT WITNESS AT THE TRIAL AND TESTIFIES IN GREAT
DETAIL AS TO THE DEFENDANT'S ALLEGED CRIMINAL CONDUCT.  THE AGENT'S
SUMMARY WOULD NOT BE A DETAILED ACCOUNT OF THE SEVERAL HOURS'
INTERROGATION OF THE WITNESS BY THE GOVERNMENT, AND WOULD NOT MEET THE
DEFINITION OF STATEMENT IN SUBSECTION (E) OF THE STATUTE; BUT IT IS
INCONCEIVABLE THAT CONGRESS INTENDED, BY THE JENCKS STATUTE, TO STRIP
THE TRIAL JUDGE OF DISCRETION TO ORDER SUCH A SUMMARY PRODUCED TO THE
DEFENSE.  EVEN THE GOVERNMENT, IN ORAL ARGUMENT, CONCEDED THAT THE
STATUTE DID NOT STRIP THE DISTRICT JUDGES OF DISCRETION TO ORDER
PRODUCTION OF SUCH A STATEMENT UNDER SOME CIRCUMSTANCES.  (FN1)  THERE
IS AN OBVIOUS CONSTITUTIONAL PROBLEM IN AN INTERPRETATION THAT THE
STATUTE RESTRAINS THE TRIAL JUDGE FROM ORDERING SUCH A STATEMENT
PRODUCED.  LESS SUBSTANTIAL RESTRICTIONS THAN THIS OF THE COMMON-LAW
RIGHTS OF CONFRONTATION OF ONE'S ACCUSERS HAVE BEEN STRUCK DOWN BY THIS
COURT UNDER THE SIXTH AMENDMENT.  SEE KIRBY V. UNITED STATES, 174 U.S.
47.  AND IN SUCH CIRCUMSTANCES, THERE BECOMES PERTINENT THE COMMAND OF
THAT AMENDMENT THAT CRIMINAL DEFENDANTS HAVE COMPULSORY PROCESS TO
OBTAIN WITNESSES FOR THEIR DEFENSE.  SEE UNITED STATES V. SCHNEIDERMAN,
106 F. SUPP. 731, 738.  IT IS TRUE THAT OUR HOLDING IN JENCKS WAS NOT
PUT ON CONSTITUTIONAL GROUNDS, FOR IT DID NOT HAVE TO BE; BUT IT WOULD
BE IDLE TO SAY THAT THE COMMANDS OF THE CONSTITUTION WERE NOT CLOSE TO
THE SURFACE OF THE DECISION; INDEED, THE CONGRESS RECOGNIZED ITS
CONSTITUTIONAL OVERTONES IN THE DEBATES ON THE STATUTE.  (FN2) 

NO EXPRESS LANGUAGE OF THE STATUTE FORBIDS THE PRODUCTION, AFTER A
WITNESS HAS TESTIFIED, OF ANY STATEMENT OUTSIDE THE COVERAGE OF THE
DEFINITION IN SUBSECTION (E), AND CERTAINLY THE LEGISLATIVE HISTORY IS
NO ADEQUATE SUPPORT FOR READING AN ABSOLUTE PROHIBITION INTO IT.  IT IS
TRUE THAT UNTIL THE CONFERENCE REPORT THE BILL CONTAINED A PROVISION
MAKING IT IN TERMS EXCLUSIVE; BUT THIS LANGUAGE WAS DELETED IN
CONFERENCE.  I SHOULD THINK THIS CHANGE WOULD SUPPORT AN INFERENCE
NEGATING ANY ABSOLUTE EXCLUSIVITY.  TO BE SURE, THE CHANGE WAS NOT
EXPLAINED IN THE HURRIED FLOOR DISCUSSIONS WHICH FOLLOWED THE AGREEMENT
IN CONFERENCE, IN THE HECTIC CLOSING DAYS OF THE SESSION, (FN3) BUT THE
ABSENCE OF AN EXPLANATION FOR THE CHANGE CAN ARGUE IN FAVOR OF ITS
BEING TAKEN AT FACE VALUE.  CERTAINLY THIS COURT SHOULD NOT DECIDE THE
CONTRARY AGAINST THE BACKDROP OF A SERIOUS QUESTION OF POTENTIAL
INVASION OF SIXTH AMENDMENT RIGHTS.  THIS IS NOT TO IGNORE THE OBVIOUS
INTENT OF CONGRESS THAT THE STATUTE PROVIDE THE PRIMARY TESTS OF WHAT
THE GOVERNMENT SHOULD PRODUCE; IT IS ONLY TO RECOGNIZE THAT IT IS NOT
INCONSISTENT WITH ACHIEVEMENT OF THE STATUTES' AIM TO REQUIRE THE
PRODUCTION OF STATEMENTS OUTSIDE THE SCOPE OF THE STATUTE WHERE THE
FAIR ADMINISTRATION OF CRIMINAL JUSTICE SO DEMANDS.  AND CERTAINLY THE
STATUTE CANNOT BE SAID TO BE EXCLUSIVE WHERE THE CONSTITUTION DEMANDS
PRODUCTION.  OF COURSE, THE TRIAL JUDGE MAY FASHION PROCEDURAL
SAFEGUARDS AS TO THOSE PRODUCIBLE STATEMENTS LYING OUTSIDE THE
STATUTE'S PURVIEW, PERHAPS BY ANALOGY TO THE STATUTORY PROCEDURES FOR
THE EXCISION OF IRRELEVANT MATTER.  IT IS SUFFICIENT TO SAY IN THIS
CASE THAT THE SUMMARY IN CONTROVERSY DOES NOT APPEAR TO FALL WITHIN THE
CATEGORY OF STATEMENTS, OUTSIDE THE DEFINITION IN SUBSECTION (E), AS TO
WHICH THE TRIAL JUDGE'S DISCRETION MIGHT BE EXERCISED.  (FN4) DECISION
NEED TURN ON NO BROADER GROUND.  CF. LEE V. MADIGAN, 358 U.S. 228, 230
231.  WHAT WAS STATED IN THE AGENT'S SUMMARY WAS ALREADY KNOWN IN EVERY
IMPORTANT DETAIL TO THE DEFENSE FROM THE TRANSCRIPT OF THE INTERVIEW OF
JULY 16 AND THE AFFIDAVIT OF AUGUST 23. 

THE SUMMARY IN THIS CASE DOES NOT PRESENT THE QUESTION WHETHER THE
STATUTE REQUIRES THE PRODUCTION OF A STATEMENT WHICH RECORDS PART OF,
BUT NOT THE ENTIRE INTERVIEW BETWEEN THE WITNESS AND THE GOVERNMENT
AGENT.  THIS IS A PROBLEM WHICH ALSO SHOULD BE LEFT TO THE DEVELOPMENT
OF THE INTERPRETIVE CASE LAW, AND IN FACT I DO NOT READ THE COURT'S
OPINION AS ESSAYING A DEFINITIVE ANSWER.  IT IS A PROBLEM I SUPPOSE
WHICH WOULD BE RAISED BY A STENOGRAPHIC, ELECTRICAL OR MECHANICAL
TRANSCRIPT OF ONLY PART OF AN INTERVIEW.  THERE IS NOTHING IN THE
LEGISLATIVE HISTORY OF THE STATUTE TO INDICATE THAT A STENOGRAPHIC
TRANSCRIPT OF A 10-MINUTE SEGMENT OF AN HOUR'S INTERVIEW WOULD NOT BE
PRODUCIBLE UNDER THE STATUTE.  IF SUCH A TRANSCRIPT WOULD BE
PRODUCIBLE, HOW DISTINGUISH A SUBSTANTIALLY FAITHFUL REPRODUCTION, MADE
BY THE INTERVIEWER FROM HIS NOTES OR FROM MEMORY, OF ANY PART OF THE
INTERVIEW?  SINCE, AS THE COURT'S OPINION CONCEDES, STATEMENTS MADE UP
FROM INTERVIEWER'S NOTES (FN5) ARE NOT PER SE UNPRODUCIBLE, ONE WOULD
SUPPOSE THAT A SUMMARY, PART OF WHICH GAVE A SUBSTANTIAL VERBATIM
ACCOUNT OF PART OF THE INTERVIEW, WOULD, AS TO THAT PART, BE PRODUCIBLE
UNDER THE STATUTE.  CERTAINLY A STATEMENT CAN BE MOST USEFUL FOR
IMPEACHMENT EVEN THOUGH IT DOES NOT EXHAUST ALL THAT WAS SAID UPON THE
OCCASION.  WE MUST NOT FORGET THAT WHEN CONFRONTED WITH HIS PRIOR
STATEMENT UPON CROSS-EXAMINATION THE WITNESS ALWAYS HAS THE OPPORTUNITY
TO OFFER AN EXPLANATION.  THE STATUTE IS TO BE GIVEN A REASONABLE
CONSTRUCTION, AND THE COURTS MUST NOT LOSE SIGHT OF THE FACT THAT THE
STATUTE REGULATES PRODUCTION OF MATERIAL FOR POSSIBLE USE IN CROSS
EXAMINATION, AND DOES NOT REGULATE ADMISSIBILITY INTO EVIDENCE - AS THE
COURT PROPERLY OBSERVES.  HERE TOO, THE CONSTITUTIONAL QUESTION CLOSE
TO THE SURFACE OF OUR HOLDING IN JENCKS MUST BE BORNE IN MIND.    I
REPEAT THAT CONGRESS MADE CRYSTAL CLEAR ITS PURPOSE ONLY TO CHECK
EXTRAVAGANT INTERPRETATIONS OF JENCKS IN THE LOWER COURTS WHILE
REAFFIRMING THE BASIC HOLDING THAT A DEFENDANT ON TRIAL SHOULD BE
ENTITLED TO STATEMENTS HELPFUL IN THE CROSS-EXAMINATION OF GOVERNMENT
WITNESSES WHO TESTIFY AGAINST HIM.  ALTHOUGH IT IS PLAIN THAT SOME
RESTRICTIONS ON PRODUCTION HAVE BEEN INTRODUCED, IT WOULD DO VIOLENCE
TO THE UNDERSTANDING ON WHICH CONGRESS, WORKING AT HIGH SPEED UNDER THE
PRESSURES OF THE END OF A SESSION, PASSED THE STATUTE, IF WE WERE TO
SANCTION APPLICATIONS OF IT EXALTING AND EXAGGERATING ITS RESTRICTIONS,
IN DISREGARD OF THE CONGRESSIONAL AIM OF REAFFIRMING THE BASIC JENCKS
PRINCIPLE OF ASSURING THE DEFENDANT A FAIR OPPORTUNITY TO MAKE HIS
DEFENSE.  EXAMINATION OF THE PAPERS SO SEDULOUSLY KEPT FROM DEFENDANT
IN THIS CASE AND COMPANION CASES DOES NOT INDICATE ANY GOVERNMENTAL
INTEREST, OUTSIDE OF THE PROSECUTION'S INTEREST IN CONVICTION, THAT IS
SERVED BY NONDISCLOSURE, AND ONE MAY WONDER WHETHER THIS IS NOT USUALLY
SO.  THERE INHERES IN AN OVERRIGID INTERPRETATION AND APPLICATION OF
THE STATUTE THE HAZARD OF ENCOURAGING A PRACTICE OF GOVERNMENT AGENTS'
TAKING STATEMENTS IN A FASHION CALCULATED TO INSULATE THEM FROM
PRODUCTION.  I AM CONFIDENT THAT THE DISTRICT COURTS WILL BEAR ALL
THESE FACTORS IN MIND IN DEVISING PRACTICAL SOLUTIONS TO THE PROBLEMS
OF PRODUCTION IN THE MANY AREAS WHICH CANNOT FAIRLY BE SAID TO BE
DETERMINED BY THE AFFIRMANCE OF THE JUDGMENT IN THIS CASE. 

FN1  IN RESPONSE TO A CASE PUT SIMILAR TO THE ONE GIVEN HERE,
GOVERNMENT COUNSEL SUGGESTED THAT THE PRIMARY REMEDY OF THE DEFENDANT
WAS TO CALL THE INTERVIEWER.  OF COURSE THIS WOULD ONLY BE ADEQUATE IF
THE DEFENSE HAD SOME REASON TO BELIEVE THAT AN INTERVIEW OF SUCH
CHARACTER HAD TAKEN PLACE AND IF THE WITNESS RECALLED THE INTERVIEWER'S
NAME.  PRESSED FURTHER AS TO CASES OF THE NONAVAILABILITY OF THE
INTERVIEWER, GOVERNMENT COUNSEL MADE IT CLEAR THAT "I WOULD CERTAINLY
NOT WANT TO CARRY THE BURDEN OF SAYING THAT IN SOME EXTRAORDINARY
SITUATION WHERE THERE WAS NO OTHER POSSIBLE WAY OF GETTING HOLD OF IT
(THE SUMMARY) THAT THERE MIGHT NOT BE EXCEPTIONS READ INTO THE STATUTE
WHAT I AM TALKING ABOUT NOW IS THE NORMAL, ORDINARY CASE." 

FN2  SEE H.R. REP. NO. 700, 85TH CONG., 1ST SESS., P. 4; S. REP. NO.
981, 85TH CONG., 1ST SESS., P. 3; 103 CONG. REC. 15928, 15933, 16489. 

FN3  COPIES OF A STATEMENT ANALYZING THE CONFERENCE VERSION WERE NOT
EVEN AVAILABLE TO THE SENATE DUE TO THE PRESS OF TIME.  SEE 103 CONG.
REC. 16488-16489. 

FN4  OF COURSE IF THE MEMORANDUM HAD BEEN ONE FAILLING WITHIN THE
STATUTE, I NEED HARDLY ADD THAT THE JUDGE WOULD HAVE HAD NO DISCRETION
TO REFUSE TO ORDER ITS PRODUCTION TO THE DEFENSE, IN THE LIGHT OF THE
STATUTE'S AFFIRMATIVE COMMAND. 

FN5  I MIGHT SAY IN PASSING THAT THE COURT'S EMPHASIS ON
INTERVIEWER'S NOTES AS A BASIS OF PRODUCIBLE INTERVIEW RECORDS SEEMS
WHOLLY DEVOID OF ANY REAL SUPPORT IN THE TEXT OF THE STATUTE OR IN THE
LEGISLATIVE MATERIALS CITED BY THE COURT. 
..END :
























ROSENBERG V. UNITED STATES 360 U.S. 367 


NO. 451.  ARGUED APRIL 28, 1959.  - DECIDED JUNE 22, 1959.  - 257 F.2D
760, AFFIRMED. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT OF TRANSPORTING
IN INTERSTATE COMMERCE, IN VIOLATION OF 18 U.S.C. SEC. 2314, A CHECK
OBTAINED BY THE PERPETRATION OF A FRAUD TO WHICH HE HAD BEEN A PARTY. 
UPON HIS DEMAND AT THE TRIAL FOR PRODUCTION FOR INSPECTION OF FEDERAL
BUREAU OF INVESTIGATION FILES, THE UNITED STATES ATTORNEY DELIVERED
NUMEROUS DOCUMENTS FROM THE GOVERNMENT'S FILES TO THE TRIAL JUDGE, WHO
GAVE THEM TO PETITIONER'S COUNSEL.  HOWEVER, THE TRIAL JUDGE WITHHELD A
FEW DOCUMENTS, AND PETITIONER CLAIMED THAT FAILURE TO PERMIT HIM TO
INSPECT THEM REQUIRED REVERSAL OF HIS CONVICTION UNDER JENCKS V. UNITED
STATES, 353 U.S. 657.  HELD:  THE CONVICTION IS SUSTAINED.  PP. 368
371. 

1.  SINCE ITS ENACTMENT, 18 U.S.C. SEC. 3500 - NOT THE JENCKS
DECISION - GOVERNS THE PRODUCTION OF STATEMENTS OF GOVERNMENT WITNESSES
FOR A DEFENDANT'S INSPECTION AT TRIAL.  PALERMO V. UNITED STATES, ANTE,
P. 343.  P. 369. 

2.  TWO REPORTS OF F.B.I. INVESTIGATORS WERE PROPERLY WITHHELD AS NOT
BEING "STATEMENTS" OF THE KIND REQUIRED TO BE PRODUCED BY 18 U.S.C.
SEC. 3500, SINCE THEY WERE NEITHER SIGNED NOR OTHERWISE ADOPTED BY ANY
WITNESS AT THE TRIAL NOR WERE THEY REPRODUCTIONS OF ANY STATEMENT MADE
BY ANY WITNESS AT THE TRIAL.  P. 369. 

3.  A THIRD DOCUMENT DID COMPLY WITH THE REQUIREMENT OF THE STATUTE,
SINCE IT WAS A TYPEWRITTEN COPY OF A STATEMENT GIVEN TO THE F.B.I. BY
PETITIONER'S CONFESSED ASSOCIATE IN THE CRIME, WHO TESTIFIED AGAINST
HIM, IT WAS SIGNED BY THE ASSOCIATE AND IT WAS PERTINENT TO THE TRIAL
OF THE CASE; BUT ITS PRODUCTION WOULD HAVE SERVED NO USEFUL PURPOSE,
SINCE PETITIONER'S COUNSEL HAD BEEN GIVEN THE ORIGINAL STATEMENT OF
WHICH THIS WAS MERELY A COPY.  PP. 369-370. 

4.  AMONG THE DOCUMENTS WITHHELD WERE FIVE LETTERS WRITTEN BY THE
VICTIM TO THE F.B.I.  AND SIGNED BY HER; BUT THEY FAILED TO MEET THE
REQUIREMENT OF 18 U.S.C. SEC. 3500(B) THAT ONLY STATEMENTS WHICH RELATE
TO THE SUBJECT MATTER AS TO WHICH THE WITNESS HAS TESTIFIED NEED BE
PRODUCED.  P. 370. 

5.  A LETTER WRITTEN BY THE VICTIM TO THE UNITED STATES ATTORNEY,
SIGNED BY HER, AND STATING THAT SHE FEARED THAT HER MEMORY WAS POOR AS
TO THE MATTERS SHE TESTIFIED ABOUT SHOULD HAVE BEEN PRODUCED; BUT
FAILURE TO PRODUCE IT WAS HARMLESS ERROR, SINCE THE SAME INFORMATION
WAS REVEALED BY THE VICTIM TO PETITIONER'S COUNSEL UNDER CROSS
EXAMINATION AND UPON QUESTIONING BY THE TRIAL JUDGE. 

ROSENBERG V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA, 146 F. SUPP. 555, FOR TRANSPORTING IN
INTERSTATE COMMERCE A CHECK OBTAINED BY THE PERPETRATION OF A FRAUD TO
WHICH HE HAD BEEN A PARTY.  18 U.S.C. SEC. 2314.  THAT CONVICTION WAS
REVERSED BY THE COURT OF APPEALS FOR THE THIRD CIRCUIT ON THE GROUND
THAT JENCKS V. UNITED STATES, 353 U.S. 657, WHICH HAD BEEN DECIDED
AFTER CONVICTION BUT BEFORE APPEAL, REQUIRED PRODUCTION FOR
PETITIONER'S INSPECTION OF CERTAIN STATEMENTS IN THE PROSECUTOR'S
POSSESSION.  245 F.2D 870.  THE SECOND TRIAL THUS ORDERED ALSO RESULTED
IN A CONVICTION, 157 F. SUPP. 654, WHICH WAS SUSTAINED BY THE COURT OF
APPEALS FOR THE THIRD CIRCUIT, 257 F.2D 760.  WE GRANTED CERTIORARI,
358 U.S. 904, LIMITED TO THE QUESTIONS OF THE APPLICATION OF THE JENCKS
RULE TO THIS PROSECUTION, THE EFFECT OF THE STATUTE ENACTED
ESTABLISHING LEGISLATIVE RULES CONCERNING THE PRODUCTION OF DOCUMENTS,
18 U.S.C. (SUPP. V) SEC. 3500, AND THE PROPRIETY OF THE RULING OF THE
COURT OF APPEALS THAT IF THE TRIAL JUDGE HAD ERRED IN FAILING TO
DELIVER TO PETITIONER CERTAIN DOCUMENTS, THE ERROR WAS HARMLESS AND
THEREFORE NOT GROUNDS FOR REVERSAL. 

IN THE SECOND TRIAL, UPON A DEMAND FOR PRODUCTION FOR INSPECTION OF
FEDERAL BUREAU OF INVESTIGATION FILES, THE UNITED STATES ATTORNEY
DELIVERED TO THE TRIAL JUDGE, AND THE TRIAL JUDGE IN TURN GAVE TO
PETITIONER'S COUNSEL, NUMEROUS DOCUMENTS FROM THE GOVERNMENT'S FILES. 
MANY OF THESE WOULD NOT HAVE BEEN REQUIRED TO BE PROVIDED UNDER EITHER
THE JENCKS DECISION OR THE STATUTE ENACTED SUBSEQUENT TO IT. PETITIONER
COMPLAINS THAT THE FEW DOCUMENTS WITHHELD BY THE TRIAL JUDGE WERE
REQUIRED TO BE SUBMITTED FOR HIS INSPECTION BY OUR OPINION IN JENCKS
AND THAT THE FAILURE TO GIVE HIM THAT OPPORTUNITY REQUIRES A REVERSAL. 
WE HAVE TODAY HELD IN PALERMO V. UNITED STATES, ANTE, P. 343, THAT
SINCE ITS ENACTMENT 18 U.S.C. (SUPP. V) SEC. 3500 AND NOT THE JENCKS
DECISION GOVERNS THE PRODUCTION OF STATEMENTS OF GOVERNMENT WITNESSES
FOR A DEFENDANT'S INSPECTION AT TRIAL. 

IN ACCORDANCE WITH 18 U.S.C. (SUPP. V) SEC. 3500(C), THE MATERIAL
WITHHELD WAS PRESERVED IN THE RECORD TO PERMIT REVIEW OF THE
CORRECTNESS OF THE TRIAL JUDGE'S RULINGS.  AS DID THE COURT OF APPEALS,
WE HAVE REVIEWED THE DOCUMENTS WITHHELD BY THE TRIAL JUDGE.  TWO ARE
REPORTS BY FBI INVESTIGATORS WHICH IN NO SENSE COMPLIED WITH SUBSECTION
(E) OF THE STATUTE.  THEY WERE NEITHER SIGNED NOR OTHERWISE ADOPTED BY
ANY WITNESS AT THE TRIAL.  A THIRD DOCUMENT DID COMPLY WITH SUCH
REQUIREMENT.  IT IS A TYPEWRITTEN COPY OF A STATEMENT GIVEN BY
ROSENBERG'S CONFESSED ASSOCIATE IN THE CRIME, MEIERDIERCKS, TO THE
FBI.  IT IS SIGNED BY MEIERDIERCKS AND ITS CONTENTS WERE PERTINENT TO
THE TRIAL OF THE CASE.  HOWEVER, THE ORIGINAL HANDWRITTEN STATEMENT, OF
WHICH THIS WAS, AS ALREADY STATED, MERELY A COPY, WAS ITSELF GIVEN TO
PETITIONER'S ATTORNEY.  NO RELEVANT PURPOSE COULD HAVE BEEN SERVED BY
GIVING PETITIONER'S COUNSEL A TYPEWRITTEN COPY OF A DOCUMENT WHICH HE
HAD ALREADY BEEN GIVEN IN ITS ORIGINAL FORM, NO ADVANTAGE TO THE
PETITIONER WAS DENIED BY WITHHOLDING IT. 

THE LAST GROUP OF DOCUMENTS IN CONTROVERSY IS A SERIES OF LETTERS
WRITTEN BY THE VICTIM FLORENCE VOSSLER TO THE FBI.  THEY WERE SIGNED BY
HER AND THUS MET THE REQUIREMENT OF SUBSECTION (E).  HOWEVER, OF THE
SIX LETTERS WITHHELD BY THE TRIAL JUDGE, FIVE CLEARLY FAIL TO MEET THE
STATUTORY REQUIREMENT THAT ONLY THAT STATEMENT "WHICH RELATES TO THE
SUBJECT MATTER AS TO WHICH THE WITNESS HAS TESTIFIED" NEED BE
PRODUCED.  18 U.S.C.  (SUPP. V) SEC. 3500(B).  THESE FIVE WERE TOTALLY
IRRELEVANT TO THE PROCEEDINGS.  IN THE SIXTH OF THIS GROUP OF LETTERS,
FLORENCE VOSSLER WROTE TO THE ASSISTANT UNITED STATES ATTORNEY THAT HER
MEMORY HAD DIMMED IN THE THREE YEARS THAT HAD PASSED SINCE THE FRAUD
HAD BEEN PERPETRATED AND THAT TO REFRESH HER FAILING MEMORY SHE WOULD
HAVE TO REREAD THE ORIGINAL STATEMENT SHE HAD GIVEN BEFORE THE FIRST
TRIAL TO THE FBI. 

A STATEMENT BY A WITNESS THAT SHE FEARS HER MEMORY AS TO THE EVENTS
AT ISSUE WAS POOR CERTAINLY "RELATES TO THE SUBJECT MATTER AS TO WHICH
THE WITNESS HAS TESTIFIED" AND SHOULD HAVE BEEN GIVEN TO DEFENDANT. 
THIS WAS RECOGNIZED AS ERROR BY THE COURT OF APPEALS.  257 F.2D 760,
763.  THAT COURT, HOWEVER, FOUND THAT THE SAME INFORMATION WHICH WAS
CONTAINED IN THE LETTER WAS REVEALED TO DEFENDANT'S COUNSEL BY
STATEMENTS MADE BY FLORENCE VOSSLER UNDER CROSS-EXAMINATION AND UPON
QUESTIONING BY THE TRIAL JUDGE.  A REVIEW OF THE RECORD, PORTIONS OF
WHICH ARE REPRODUCED IN AN APPENDIX, PRECLUDES US FROM REJECTING THE
JUDGMENT ON WHICH THE COURT OF APPEALS BASED ITS CONCLUSION THAT THE
FAILURE TO REQUIRE PRODUCTION OF THIS LETTER WAS EMPTY OF CONSEQUENCE. 
SINCE THE SAME INFORMATION THAT WOULD HAVE BEEN AFFORDED HAD THE
DOCUMENT BEEN GIVEN TO DEFENDANT WAS ALREADY IN THE POSSESSION OF THE
DEFENSE BY WAY OF THE WITNESS' ADMISSIONS WHILE TESTIFYING, IT WOULD
DENY REASON TO ENTERTAIN THE BELIEF THAT DEFENDANT COULD HAVE BEEN
PREJUDICED BY NOT HAVING HAD OPPORTUNITY TO INSPECT THE LETTER. 

AN APPELLATE COURT SHOULD NOT CONFIDENTLY GUESS WHAT DEFENDANT'S
ATTORNEY MIGHT HAVE FOUND USEFUL FOR IMPEACHMENT PURPOSES IN WITHHELD
DOCUMENTS TO WHICH THE DEFENSE IS ENTITLED.  HOWEVER, WHEN THE VERY
SAME INFORMATION WAS POSSESSED BY DEFENDANT'S COUNSEL AS WOULD HAVE
BEEN AVAILABLE WERE ERROR NOT COMMITTED, IT WOULD OFFEND COMMON SENSE
AND THE FAIR ADMINISTRATION OF JUSTICE TO ORDER A NEW TRIAL.  THERE IS
SUCH A THING AS HARMLESS ERROR AND THIS CLEARLY WAS SUCH.  THE JUDGMENT
OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT IS THEREFORE AFFIRMED. 

FOR DISSENTING OPINION OF MR. JUSTICE BRENNAN, JOINED BY THE CHIEF
JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, SEE POST, P. 373. 

                      APPENDIX TO OPINION OF THE COURT. 

MR. SINGER.  "MISS VOSSLER, IT HAS BEEN QUITE SOMETIME SINCE YOU HAVE
TESTIFIED.  HAVE YOU HAD AN OPPORTUNITY WITHIN THE LAST SIX MONTHS OR
SO TO GO OVER ANY PREVIOUS TESTIMONY OR STATEMENTS WHICH YOU MIGHT HAVE
GIVEN WITH REFERENCE TO THIS MATTER?  HAVE YOU SPOKEN TO ANYONE  ...
." 

MISS VOSSLER.  "YOU MEAN TESTIMONY THAT I GAVE?" 

MR. SINGER.  "THAT IS CORRECT." 

MISS VOSSLER.  "THE TESTIMONY THAT I GAVE IN THIS COURT?" 

THE COURT.  "YES, IN JUNE, 1956." 

MISS VOSSLER.  "YES.  NO, I HAVEN'T SEEN ANYTHING." 

THE COURT.  "YOU HAVEN'T SEEN  ...  ." 

MISS VOSSLER.  "ANY TESTIMONY." 

THE COURT.  " - THE TRANSCRIPT OF THAT TESTIMONY  ...  ." 

MISS VOSSLER.  "NO, SIR." 

THE COURT.  " - WHICH WAS IN BOOKS LIKE THIS (INDICATING)?" 

MISS VOSSLER.  "NO, NO, YOUR HONOR, NOTHING." 

THE COURT.  "WELL, HAVE YOU SEEN ANY STATEMENT WHICH YOU GAVE TO
AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION?" 

MISS VOSSLER.  "YES, BECAUSE I HAD A COPY OF THE FIRST STATEMENT THAT
I GAVE ON JANUARY 24.  THAT IS THE ONLY STATEMENT I HAD." 

THE COURT.  "HAVE YOU GOT THAT WITH YOU?" 

MISS VOSSLER.  "NO, I HAVEN'T, NOW." 

THE COURT.  "WHEN DID YOU LAST SEE IT?" 

MISS VOSSLER.  "WELL, MR. BECHTLE ASKED THAT I LEAVE IT WITH HIM
UPSTAIRS." 

THE COURT.  "WHEN WAS THAT?" 

MISS VOSSLER.  "MONDAY WHEN I ARRIVED HERE." 

THE COURT.  "IN OTHER WORDS, YOU LOOKED IT OVER MONDAY?" 

MISS VOSSLER.  "WELL, I GLANCED AT IT MONDAY.  I DIDN'T READ IT LINE
FOR LINE." 

THE COURT.  "WELL, WHEN DID YOU LAST READ IT LINE FOR LINE?" 

MISS VOSSLER.  "WELL, LAST WEEK, BECAUSE I HAD IT AT MY HOME." 

THE COURT.  "LAST WEEK YOU READ OVER THE STATEMENT  ...  ." 

MISS VOSSLER.  "YES." 

THE COURT.  " - OF JANUARY 24, YOU SAY, 1955?" 

MISS VOSSLER.  "YES.  THAT IS WHEN THE FBI AGENTS CAME TO MY HOME." 

THE COURT.  "I SEE.  LAST WEEK.  YOU HAVE THAT STATEMENT, DON'T
YOU?" 

MR. SINGER.  "I HAVE IT HERE." 

MISS VOSSLER.  "THAT IS THE ONLY STATEMENT THAT I HAVE SEEN AT ALL,
AT ANY TIME." 

RECORD, PP. 330-332. 

FURTHER EVIDENCE OF FLORENCE VOSSLER'S LOSS OF CLEAR RECOLLECTION
CAME TO DEFENDANT'S ATTORNEY DURING THE COURSE OF THE CROSS
EXAMINATION.  HE ASKED THE WITNESS TO IDENTIFY A MR. MCCOMB. 

MISS VOSSLER.  "WELL, LET ME SEE IF I CAN REMEMBER.  MR. MCCOMB CAME
TO MY HOUSE ONE TIME - YOU SEE, IT IS ALWAYS POSSIBLE TO FIND THE NAMES
OF PEOPLE WHO BUY LEASES OR PURCHASE LEASES  ...  ." 

MR. SINGER.  "MAY I INTERRUPT YOU ONE MOMENT, PLEASE.  IN ALL
FAIRNESS TO THE WITNESS, YOUR HONOR, I FEEL THAT I SHOULD INTRODUCE
THIS REPORT AND PERMIT HER TO REFRESH HER RECOLLECTION." 

THE COURT.  "YES, THANK YOU.  WHAT NUMBER IS IT? 

MR. SINGER.  "THIS IS COURT'S EXHIBIT NO. 10, WHICH IS A SUMMARY OF
VARIOUS STATEMENTS GIVEN BY MISS VOSSLER TO THE FBI.  AND I ASK MISS
VOSSLER TO READ PAGE 2 SO THAT SHE MAY PROPERLY ANSWER THE QUESTIONS." 

RECORD, PP. 345-346. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

THE GOVERNMENT'S CASE AGAINST PETITIONER RESTED ON THE TESTIMONY OF
CHARLES MEIERDIERCKS, A CONFESSED ACCOMPLICE IN THE SWINDLE THAT
CONCERNS US HERE, AND FLORENCE VOSSLER, THE VICTIM.  MEIERDIERCKS
TESTIFIED, IN CONSIDERABLE DETAIL, THAT HE AND THE PETITIONER OBTAINED
MISS VOSSLER'S CHECK BY FRAUD AND THAT PETITIONER TRANSPORTED THAT
CHECK IN INTERSTATE COMMERCE BEFORE CASHING IT. MISS VOSSLER'S
TESTIMONY CORROBORATED THAT OF MEIERDIERCKS TO A CONSIDERABLE EXTENT,
BUT DID NOT IMPLICATE PETITIONER.  SINCE A CONVICTION WOULD HAVE BEEN
IMPOSSIBLE UNLESS THE JURY BELIEVED MEIERDIERCKS, IT SEEMS APPARENT
THAT THE GOVERNMENT PUT MISS VOSSLER ON THE STAND IN THE HOPE THAT HER
DETAILED CORROBORATION OF MEIERDIERCKS' STORY WOULD LEND CREDENCE IN
THE EYES OF THE JURY TO THE TESTIMONY OF THE CONFESSED SWINDLER.  IF
THE DEFENSE COULD HAVE EFFECTIVELY IMPEACHED MISS VOSSLER, THE
GOVERNMENT WOULD HAVE HAD TO RELY ON THE ESSENTIALLY UNCORROBORATED
TESTIMONY OF MEIERDIERCKS FOR A CONVICTION. 

DEFENSE COUNSEL MOVED AT THE END OF MISS VOSSLER'S DIRECT TESTIMONY
FOR PRODUCTION OF "PERTINENT MATERIAL IN THE POSSESSION OF THE
GOVERNMENT CONCERNING THIS PARTICULAR WITNESS."  THE TRIAL JUDGE,
PURSUANT TO THIS MOTION, ORDERED THE DELIVERY OF SOME MATERIAL TO THE
DEFENSE BUT DID NOT INCLUDE A LETTER TO THE ASSISTANT UNITED STATES
ATTORNEY - HANDWRITTEN AND SIGNED BY MISS VOSSLER SHORTLY BEFORE THE
TRIAL - WHICH STATED IN PART:  "AS A MATTER OF FACT, AS TIME GOES ON, I
AM MORE HAZY ABOUT THE WHOLE TRANSACTION AND MIGHT NOT FARE TOO WELL
UNDER A CROSS-EXAMINATION, THOUGH I HAVE HERE MY STATEMENT WITH WHICH
TO REFERSH MY MEMORY.  IT WILL BE 3 YEARS IN JANUARY 1958 SINCE THE
ABOVE SWINDLE TOOK PLACE; THEREFORE; I COULD NOT BE ACCURATE AS TO DAY
TO DAY OCCURRENCES AFTER SUCH A PERIOD, THOUGH, AS STATED, POSSIBLY A
REVIEW OF MY STATEMENT WOULD HELP."  THE COURT OF APPEALS AND THIS
COURT BOTH AGREE THAT THIS LETTER WAS A STATEMENT RELEVANT TO THE
SUBJECT MATTER AS TO WHICH THE WITNESS TESTIFIED ON DIRECT EXAMINATION,
AND THUS SHOULD HAVE BEEN GIVEN TO THE DEFENSE UNDER THE COMMAND OF THE
JENCKS STATUTE, 18 U.S.C. (SUPP. V) SEC. 3500.  THE COURT HOLDS,
HOWEVER, THAT:  "THERE IS SUCH A THING AS HARMLESS ERROR AND THIS
CLEARLY WAS SUCH."  I DISSENT BECAUSE IT PLAINLY APPEARS THAT THE
HARMLESS ERROR DOCTRINE SHOULD NOT BE INVOKED IN THE CIRCUMSTANCES OF
THIS CASE. 

THE PRINCIPLE UNDERLYING OUR DECISION IN JENCKS V. UNITED STATES, 353
U.S. 657, WAS THAT IT IS IMPOSSIBLE FOR A JUDGE TO BE FULLY AWARE OF
ALL THE POSSIBILITIES FOR IMPEACHMENT INHERING IN A PRIOR STATEMENT OF
A GOVERNMENT WITNESS, "BECAUSE ONLY THE DEFENSE IS ADEQUATELY EQUIPPED
TO DETERMINE ITS  ...  EFFECTIVE USE FOR PURPOSE OF DISCREDITING THE
GOVERNMENT'S WITNESS AND THEREBY FURTHERING THE ACCUSED'S DEFENSE  ...
."  353 U.S., AT 668-669. 

THE JENCKS STATUTE WAS CLEARLY DESIGNED TO EFFECTUATE THIS
PRINCIPLE.  THE STATUTE, WHILE DELIMITING THE STATEMENTS WHICH ARE TO
BE TURNED OVER TO THE DEFENSE, OBVIOUSLY COMPREHENDS THAT STATEMENTS
WHICH ARE PRODUCIBLE UNDER IT MUST BE GIVEN TO THE DEFENSE REGARDLESS
OF A JUDGE'S OPINION AS TO HOW USEFUL THEY MIGHT BE ON CROSS
EXAMINATION, FOR ONLY THE DEFENSE CAN FULLY APPRECIATE THEIR POSSIBLE
UTILITY FOR IMPEACHMENT.  THIS IS THE RATIONALE OF THE JENCKS CASE, AND
THIS IS THE RATIONALE OF THE STATUTE.  AS THE SENATE REPORTED:  "THE
PROPOSED LEGISLATION, AS HERE PRESENTED, REAFFIRMS THE DECISION OF THE
SUPREME COURT IN ITS HOLDING THAT A DEFENDANT ON TRIAL IN A CRIMINAL
PROSECUTION IS ENTITLED TO RELEVANT AND COMPETENT REPORTS AND
STATEMENTS IN POSSESSION OF THE GOVERNMENT TOUCHING THE EVENTS AND
ACTIVITIES AS TO WHICH A GOVERNMENT WITNESS HAS TESTIFIED AT THE TRIAL
...  ."  S. REP. NO. 981, 85TH CONG., 1ST SESS., P. 3; AND SEE H.R.
REP. NO. 700, 85TH CONG., 1ST SESS., PP. 3, 4.  ALTHOUGH WE NEED NOT GO
SO FAR AS THOSE COURTS WHICH HAVE SUGGESTED THAT THE HARMLESS ERROR
DOCTRINE CAN NEVER APPLY AS TO STATEMENTS PRODUCIBLE UNDER THE STATUTE,
SEE BERGMAN V. UNITED STATES, 253 F.2D 933; UNITED STATES V. PRINCE,
264 F.2D 850, FIDELITY TO THE PRINCIPLE UNDERLYING JENCKS AND THE
JENCKS STATUTE REQUIRES, I THINK, THAT WHEN THE DEFENSE HAS BEEN DENIED
A STATEMENT PRODUCIBLE UNDER THE STATUTE, AN APPELLATE COURT SHOULD
ORDER A NEW TRIAL UNLESS THE CIRCUMSTANCES JUSTIFY THE CONCLUSION THAT
A FINDING THAT SUCH A DENIAL WAS HARMFUL ERROR WOULD BE CLEARLY
ERRONEOUS.  IN THAT DETERMINATION, APPELLATE COURTS SHOULD BE HESITANT
TO TAKE IT UPON THEMSELVES TO DECIDE THAT THE DEFENSE COULD NOT HAVE
EFFECTIVELY UTILIZED A PRODUCIBLE STATEMENT.  THIS MUST NECESSARILY BE
THE CASE IF THE APPELLATE COURT IS TO GIVE EFFECT TO THE UNDERLYING
PRINCIPLE OF JENCKS, AFFIRMED BY THE STATUTE, WHICH, I REPEAT, IS THAT
"ONLY THE DEFENSE IS ADEQUATELY EQUIPPED TO DETERMINE ITS  ...
EFFECTIVE USE FOR PURPOSE OF DISCREDITING THE GOVERNMENT'S WITNESS  ...
."  INDEED, ANOTHER CONSIDERATION WHICH SHOULD MOVE THE APPELLATE
COURT TO BE ESPECIALLY HESITANT TO SUBSTITUTE ITS JUDGMENT AS TO TRIAL
STRATEGY FOR THAT OF DEFENSE COUNSEL IS THAT, UNDER THE PROCEDURE
ESTABLISHED BY THE STATUTE, THE DEFENSE DOES NOT SEE THE STATEMENT AND
HAS NO OPPORTUNITY TO PRESENT ARGUMENTS SHOWING PREJUDICE FROM ITS
WITHHOLDING. 

IN SHORT, ONLY A VERY STRICT STANDARD IS APPROPRIATE FOR APPLYING THE
HARMLESS ERROR DOCTRINE IN THESE CASES.  UNDER SUCH A STANDARD, I
CANNOT CONCLUDE THAT DEFENSE COUNSEL COULD NOT HAVE PUT MISS VOSSLER'S
LETTER TO EFFECTIVE USE IN IMPEACHING HER.  ALTHOUGH SHE STATED ON
CROSS-EXAMINATION THAT SHE HAD REFRESHED HER MEMORY BEFORE TESTIFYING
BY REFERENCE TO A STATEMENT SHE HAD MADE PREVIOUSLY, THIS ORAL
TESTIMONY WAS OBVIOUSLY NOT AS USEFUL FOR IMPEACHMENT PURPOSES AS HER
WRITTEN ADMISSION SHORTLY BEFORE TRIAL THAT HER MEMORY OF THE EVENTS IN
QUESTION WAS FAILING.  DEFENSE COUNSEL, IF ARMED WITH THE LETTER, MIGHT
WELL HAVE PROBED MORE DEEPLY THAN HE DID IN TESTING HOW HER MEMORY OF
THE EVENTS TO WHICH SHE TESTIFIED WAS REFRESHED.  THE TRIAL STRATEGY OF
DEFENSE COUNSEL, FAMILIAR WITH HIS CASE AND AWARE OF THE VARIOUS
POSSIBLE LINES OF DEFENSE, MIGHT HAVE BEEN ENTIRELY DIFFERENT HAD HE
BEEN IN POSSESSION OF THE LETTER.  AT LEAST I CANNOT BRING MYSELF TO
ASSUME THAT THIS WOULD NOT HAVE BEEN THE CASE. 

THIS IS NOT A CASE IN WHICH THE STATEMENT ERRONEOUSLY WITHHELD FROM
THE DEFENSE MERELY DUPLICATED INFORMATION ALREADY IN THE DEFENSE'S
POSSESSION;* IT IS NOT A CASE IN WHICH THE WITNESS' TESTIMONY WAS
UNIMPORTANT TO THE PROOFS NECESSARY FOR CONVICTION; AND IT IS NOT A
CASE IN WHICH THE WITNESS' STATEMENT WAS WHOLLY VOID OF POSSIBLE USE
FOR IMPEACHMENT.  IN THIS CASE, THE DEFENSE WAS DENIED A LETTER WRITTEN
BY A KEY GOVERNMENT WITNESS SHORTLY BEFORE TRIAL MAKING STATEMENTS
WHICH RAISED SERIOUS QUESTIONS AS TO HER MEMORY OF THE EVENTS ABOUT
WHICH SHE TESTIFIED IN CONSIDERABLE DETAIL AT THE TRIAL.  IN SUCH A
CIRCUMSTANCE, I THINK IT WAS ERROR FOR THE COURT OF APPEALS TO SECOND
GUESS DEFENSE COUNSEL AS TO THE POSSIBLE USE OF THE LETTER ON CROSS
EXAMINATION.  IF WE ARE TO BE FAITHFUL TO THE STANDARDS WE HAVE SET FOR
OURSELVES IN THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL
COURTS WE MUST ORDER A NEW TRIAL IN A CASE SUCH AS THIS WHERE THE
POSSIBLE UTILITY TO THE DEFENSE OF THE ERRONEOUSLY WITHHELD STATEMENT
CANNOT BE DENIED.  "THE INQUIRY CANNOT BE MERELY WHETHER THERE WAS
ENOUGH TO SUPPORT THE RESULT, APART FROM THE PHASE AFFECTED BY THE
ERROR.  IT IS RATHER, EVEN SO, WHETHER THE ERROR ITSELF HAD SUBSTANTIAL
INFLUENCE.  IF SO, OR IF ONE IS LEFT IN GRAVE DOUBT, THE CONVICTION
CANNOT STAND."  KOTTEAKOS V. UNITED STATES, 328 U.S. 750, 765. 

*THE DEFENSE WAS NOT GIVEN A TYPED STATEMENT SIGNED BY MEIERDIERCKS
WHICH WAS DISCOVERABLE UNDER THE STATUTE, BUT THIS WAS HARMLESS ERROR
SINCE THE DEFENSE WAS GIVEN A HANDWRITTEN STATEMENT FROM WHICH THE
TYPED STATEMENT HAD BEEN COPIED. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 
..END :







ATLANTIC REFINING CO. V. PUBLIC SERVICE COMMISSION OF NEW YORK 360 U.S.
378 


NO. 518.  ARGUED MAY 20-21, 1959.  - DECIDED JUNE 22, 1959.* - 257 F.2D
717, AFFIRMED ON DIFFERENT GROUNDS. 

*TOGETHER WITH NO. 536, TENNESSEE GAS TRANSMISSION CO. V. PUBLIC
SERVICE COMMISSION OF NEW YORK ET AL., ALSO ON CERTIORARI TO THE SAME
COURT. 


FOUR INDEPENDENT PRODUCERS APPLIED TO THE FEDERAL POWER COMMISSION
UNDER SEC. 7(E) OF THE NATURAL GAS ACT FOR A CERTIFICATE OF CONVENIENCE
AND NECESSITY AUTHORIZING THE SALE TO AN INTERSTATE PIPELINE COMPANY OF
AN ENORMOUS QUANTITY OF NATURAL GAS FROM WELLS IN THE GULF OF MEXICO
OFF THE SHORE OF LOUISIANA AT A MUCH HIGHER RATE THAN THE PIPELINE
COMPANY WAS THEN PAYING FOR GAS.  THE PIPELINE COMPANY INTERVENED, AS
DID SOME OF ITS DISTRIBUTOR CUSTOMERS AND OTHER INTERESTED PARTIES, THE
LATTER URGING A LOWER RATE.  AFTER TWICE REFUSING TO ISSUE THE
CERTIFICATE ON THE GROUND THAT THE RECORD WAS INSUFFICIENT TO SUPPORT A
FINDING THAT PUBLIC CONVENIENCE AND NECESSITY REQUIRED THE SALE AT THE
PROPOSED RATE, THE COMMISSION WAS TOLD THAT THE PRODUCERS WOULD NOT
DEDICATE THE GAS TO THE INTERSTATE MARKET UNLESS A PERMANENT
CERTIFICATE WAS GRANTED UNCONDITIONALLY AND AT THE RATE PROPOSED.  UPON
HEARING, BUT WITHOUT ADDITIONAL EVIDENCE, THE COMMISSION THEN ISSUED
SUCH A CERTIFICATE.  HELD: 

1.  THE FACTS THAT THE PRODUCERS LIMITED THEIR APPLICATION TO A FIRM
PRICE AGREED UPON BETWEEN THEM AND THE PIPELINE COMPANY, REFUSED TO
ACCEPT CERTIFICATION AT A LOWER PRICE, AND THREATENED TO CANCEL THE
CONTRACT AND WITHHOLD THE GAS FROM INTERSTATE COMMERCE DID NOT DEPRIVE
THE COMMISSION OF JURISDICTION.  PP. 387-388. 

2.  THE ORDER OF THE COMMISSION GRANTING THE CERTIFICATES WAS IN
ERROR, AND IT MUST BE VACATED AND THE CASE REMANDED TO THE COMMISSION
FOR FURTHER PROCEEDINGS.  PP. 382, 388-394. 

(A) IN VIEW OF THE FRAMEWORK IN WHICH THE COMMISSION IS AUTHORIZED
AND DIRECTED TO ACT AND THE INORDINATE DELAY PRESENTLY EXISTING IN
PROCEEDINGS UNDER SEC. 5 TO REVIEW RATES INITIALLY CERTIFICATED, THE
INITIAL CERTIFICATING OF A PROPOSAL UNDER SEC. 7(E) AS BEING REQUIRED
BY PUBLIC CONVENIENCE AND NECESSITY IS CRUCIAL; AND A PERMANENT
CERTIFICATE SHOULD NOT BE ISSUED UNLESS THE PROPOSED RATE HAS BEEN
SHOWN TO BE IN THE PUBLIC INTEREST.  PP. 388-391. 

(B)  WHEN THE PRICE PROPOSED IN AN APPLICATION UNDER SEC. 7(E) IS NOT
IN KEEPING WITH THE PUBLIC INTEREST BECAUSE IT IS OUT OF LINE OR
BECAUSE ITS APPROVAL MIGHT TRIGGER GENERAL PRICE RISES OR AN INCREASE
IN THE APPLICANT'S EXISTING RATES, THE COMMISSION, IN THE EXERCISE OF
ITS DISCRETION, MAY ATTACH SUCH CONDITIONS AS IT MAY DEEM NECESSARY. 
PP. 391. 

(C)  IN GRANTING SUCH CONDITIONAL CERTIFICATES, THE COMMISSION DOES
NOT DETERMINE INITIAL PRICES NOR DOES IT OVERTURN THOSE AGREED UPON BY
THE PARTIES.  RATHER IT SO CONDITIONS THE CERTIFICATES THAT THE
CONSUMING PUBLIC MAY BE PROTECTED WHILE THE JUSTNESS AND REASONABLENESS
OF THE PRICES FIXED BY THE PARTIES ARE BEING DETERMINED UNDER OTHER

(D)  IF UNCONDITIONAL CERTIFICATES ARE ISSUED WHERE THE RATE IS NOT
CLEARLY SHOWN TO BE REQUIRED BY THE PUBLIC CONVENIENCE AND NECESSITY,
RELIEF IS LIMITED TO SEC. 5 PROCEEDINGS, AND FULL PROTECTION OF THE
PUBLIC INTEREST IS NOT AFFORDED.  P. 392. 

(E)  THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING
OF PUBLIC CONVENIENCE AND NECESSITY PREREQUISITE TO THE ISSUANCE OF
PERMANENT CERTIFICATES.  PP.  392-394. 

ATLANTIC REFINING CO. ET AL. V. PUBLIC SERVICE COMMISSION OF NEW YORK ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING TESTS THE JURISDICTION, AS WELL AS THE DISCRETION, OF
THE FEDERAL POWER COMMISSION IN THE CERTIFICATING OF THE SALE OF
NATURAL GAS UNDER SEC. 7(E) OF THE NATURAL GAS ACT OF 1938, 52 STAT.
821, 56 STAT. 84, AS AMENDED, 15 U.S.C. SEC. 717 ET SEQ. (FN1)  THE
COMMISSION HAS ISSUED A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
TO PETITIONERS, PRODUCERS OF NATURAL GAS, (FN2) TO SELL TO PETITIONER
TENNESSEE GAS TRANSMISSION CO. 1.67 TRILLION CUBIC FEET OF NATURAL GAS
AT AN INITIAL PRICE OF 22.4 CENTS PER MCF, INCLUDING A TAX OF 1 CENT
PER MCF.  CONTINENTAL OIL CO., 17 F.P.C. 880.  IN THE SAME PROCEEDING
AND ON THE SAME EVIDENCE IT HAD TWICE REFUSED TO ISSUE SUCH AN
UNCONDITIONAL CERTIFICATE BECAUSE OF INSUFFICIENT EVIDENCE OR TESTIMONY
"ON WHICH TO BASE A FINDING THAT THE PUBLIC CONVENIENCE AND NECESSITY
REQUIRES THE SALE OF THESE VOLUMES OF GAS AT THE PARTICULAR RATE LEVEL
HERE PROPOSED."  ON THE SECOND OCCASION IT PROPOSED TO PETITIONERS THAT
THE CERTIFICATES BE CONDITIONED UPON AN INITIAL PRICE OF 18 CENTS PER
MCF (INCLUDING THE 1-CENT TAX), TO BE INCREASED TO 22.4 CENTS PER MCF
(INCLUDING THE 1-CENT TAX) AFTER THE FIRST 240-HOUR DELIVERY PERIOD,
THE LATTER RATE TO BE SUBJECTED TO THE "JUST AND REASONABLE" PROVISIONS
OF SEC. 4 OF THE ACT, 15 U.S.C. SEC. 717C.  THE PETITIONERS REFUSED
THIS PROPOSAL, AND TENNESSEE ADVISED THE COMMISSION THAT UNLESS THE
CERTIFICATES WERE ISSUED WITHOUT SUCH CONDITIONS, CATCO WOULD NOT
DEDICATE ITS GAS TO THE INTERSTATE MARKET.  UPON REHEARING, AFTER
ARGUMENT BUT WITHOUT ADDITIONAL EVIDENCE, THE COMMISSION ISSUED THE
CERTIFICATES DECLARING "IMPORTANT AS IS THE ISSUE OF PRICE, THAT AS FAR
AS THE PUBLIC IS CONCERNED, THE PRECISE CHARGE THAT IS MADE INITIALLY
IS LESS IMPORTANT THAN THE ASSURANCE OF THIS GREAT SUPPLY OF GAS" FOR
INTERSTATE MARKETS.  17 F.P.C., AT 881. 

THE RESPONDENTS, OTHER THAN THE PUBLIC SERVICE COMMISSION OF THE
STATE OF NEW YORK, ARE PUBLIC UTILITIES IN NEW YORK AND NEW JERSEY. 
THEY BUY GAS FROM PETITIONER TENNESSEE FOR DISTRIBUTION IN THOSE
STATES.  THEY AND THE NEW YORK COMMISSION OPPOSE THE ISSUANCE OF THE
CERTIFICATES ON THE GROUND THAT THEIR ISSUANCE WILL INCREASE THE PRICE
OF GAS TO CONSUMERS IN THOSE STATES, OF WHOM THERE ARE OVER A MILLION,
USING TENNESSEE'S GAS.  UPON THE ISSUANCE OF THE CERTIFICATES THE
RESPONDENTS FILED PETITIONS FOR REVIEW WITH THE COURT OF APPEALS.  IT
HELD THAT "CONGRESS HAS NOT GIVEN THE COMMISSION POWER TO INQUIRE INTO
THE ISSUE OF PUBLIC CONVENIENCE AND NECESSITY WHERE, AS HERE, THE
APPLICANT CIRCUMSCRIBES THE SCOPE OF THAT INQUIRY BY ATTACHING A
CONDITION TO ITS APPLICATION REQUIRING THE COMMISSION TO FOREGO THE
CONSIDERATION OF AN ELEMENT WHICH MAY BE NECESSARY IN THE FORMULATION
OF ITS JUDGMENT."  PUBLIC SERVICE COMM'N OF N.Y. V. FEDERAL POWER
COMM'N, 257 F.2D 717, 723.  CONCLUDING THAT THE COMMISSION HAD NO
JURISDICTION TO CONDUCT SUCH A "LIMITED INQUIRY," IBID., IT VACATED THE
ORDER GRANTING THE CERTIFICATES AND REMANDED THE CASE TO THE
COMMISSION.  THE IMPORTANCE IN THE ADMINISTRATION OF THE ACT OF THE
QUESTIONS THUS POSED REQUIRED THE GRANTING OF CERTIORARI, 358 U.S. 926
(1959).  WE HAVE CONCLUDED THAT THE COURT OF APPEALS WAS IN ERROR IN
DECIDING THAT THE COMMISSION IN GRANTING THE CERTIFICATES WAS IN ERROR
AND WE, THEREFORE, AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

THE NATURAL GAS INVOLVED HERE IS OF A MIOCENE SAND LOCATED BELOW
SEABED OUT IN THE GULF OF MEXICO SOME 15 TO 25 MILES OFFSHORE FROM
CAMERON AND VERMILION PARISHES, LOUISIANA.  THE PETITIONERS IN NO. 518
ARE EACH INDEPENDENT NATURAL GAS PRODUCERS.  THEY JOINTLY OWN OIL AND
GAS LEASES (25% TO EACH COMPANY) WHICH THEY OBTAINED FROM LOUISIANA
COVERING LARGE ACREAGES OF THE CONTINENTAL SHELF OFF THE LOUISIANA
COAST.  JURISDICTION OVER THE CONTINENTAL SHELF IS CLAIMED BY THE
UNITED STATES AND THE QUESTION IS NOW IN LITIGATION.  THE CONGRESS HAS
CONTINUED EXISTING LEASES IN EFFECT PENDING THE OUTCOME OF THE
CONTROVERSY OVER THE TITLE.  67 STAT. 462, 43 U.S.C. (SUPP. I, 1954)
SECS. 1331-1343.  THE FOUR COMPANIES' JOINT VENTURE HAS RESULTED IN THE
DISCOVERY OF HUGE FIELDS OF NATURAL GAS AND THEY HAVE DEDICATED SOME
1.75 TRILLION CUBIC FEET OF GAS FROM 95,000 ACRES OF THEIR LEASES TO
THE PETITIONER TENNESSEE GAS TRANSMISSION COMPANY, A NATURAL GAS
COMPANY SUBJECT TO THE JURISDICTION OF THE COMMISSION.  (FN3)  THE
LATTER IS THE PETITIONER IN NO. 536 WHICH HAS BEEN CONSOLIDATED WITH
NO. 518. 

THE FOUR CONTRACTS DEDICATING THE GAS TO TENNESSEE RUN FROM EACH OF
THE PETITIONER PRODUCERS.  THE CONTRACTS CALL FOR AN INITIAL PRICE OF
22.4 CENTS PER MCF FOR THE GAS, INCLUDING 1-CENT TAX, WITH ESCALATOR
CLAUSES CALLING FOR PERIODIC INCREASES IN SPECIFIC AMOUNTS.  (FN4)  IN
ADDITION, THEY PROVIDE FOR TENNESSEE TO RECEIVE THE GAS AT PLATFORMS ON
THE WELL SITES OUT SOME 15 TO 25 MILES IN THE GULF.  THIS REQUIRES IT
TO BUILD APPROXIMATELY 107 MILES OF PIPELINE FROM ITS NEAREST EXISTING
PIPELINE POINT TO THE OFFSHORE PLATFORMS AT WELLHEAD.  THE ESTIMATED
COST WAS $16,315,412.  IT FURTHER APPEARS THAT THE NECESSITY FOR THE
CERTIFICATES WAS BASED ON AN APPLICATION OF TENNESSEE, DOCKET G-11107,
IN WHICH TENNESSEE REQUESTED CERTIFICATION TO ENLARGE AND EXTEND ITS
FACILITIES.  THIS PROGRAM INCLUDED THE BUILDING OF A PIPELINE FROM
SOUTHEAST LOUISIANA TO PORTLAND, TENNESSEE, WHICH WOULD CARRY A LARGE
PROPORTION OF THE GAS FROM THESE LEASES.  ITS COST WAS ESTIMATED AT
$85,000,000.  IN ADDITION THE CONTRACTS PROVIDE THAT TENNESSEE GIVE
FREE CARRIAGE FROM THE WELLS TO THE SHORE OF ALL CONDENSATE OR
DISTILLATE IN THE GAS FOR THE ACCOUNT OF PRODUCERS WHO HAVE THE OPTION
TO SEPARATE IT FROM THE GAS AT SHORE STATIONS.  WE NEED NOT DISCUSS THE
CONTRACT PROVISIONS MORE MINUTELY, THOUGH RESPONDENTS DO CLAIM THAT
OTHER REQUIREMENTS PLACE A GREATER BURDEN ON TENNESSEE AND IN PRACTICAL
EFFECT INCREASE THE STATED PRICE OF THE GAS TO IT. 

THE PRESIDING EXAMINER ON MARCH 29, 1957, FOUND THAT THE SALES WERE
REQUIRED BY THE PUBLIC CONVENIENCE AND NECESSITY.  CONTINENTAL OIL CO.,
17 F.P.C. 563.  WHILE HE FOUND THAT THE PROPOSED PRICE WAS HIGHER THAN
ANY PRICE TENNESSEE WAS THEN PAYING, HE POINTED TO OTHER PRICES
CURRENTLY PAID FOR ONSHORE SALES "FOR SMALLER RESERVES AND SMALLER
FUTURE POTENTIALS."  ID., AT 571.  THE AVERAGE WEIGHTED COST OF GAS TO
TENNESSEE HE FOUND WOULD BE INCREASED, IF THE CONTRACT PRICE WAS
CERTIFICATED, BY .97 CENTS PER MCF.  (FN5)  HOWEVER, HE SAID THAT NO
SHOWING HAD BEEN MADE THAT THIS WOULD LEAD TO AN INCREASE IN
TENNESSEE'S RATES TO JURISDICTIONAL CUSTOMERS OR RESULT IN AN INCREASE
IN THE PRICE GOVERNING ITS OTHER PURCHASES.  HE REFUSED TO CONDITION
THE CERTIFICATES ON THE ACCEPTANCE OF A LOWER PRICE BY THE PARTIES ON
THE GROUND THAT NO "SHOWING OF IMPRUDENCE OR OF ABUSE OF DISCRETION OF
MANAGEMENT," IBID., HAD BEEN MADE THAT INDICATED THE PROPOSED PRICE
COULD NOT BE ACCEPTED TEMPORARILY AS CONSISTENT WITH THE PUBLIC
CONVENIENCE AND NECESSITY, PENDING REVIEW IN A SEC. 5(A) PROCEEDING. 
HOWEVER, HE DID CONDITION HIS RECOMMENDATION ON THE APPROVAL OF
TENNESSEE'S APPLICATION IN DOCKET G-11107 ABOVE MENTIONED. 

THE COMMISSION, AS WE HAVE INDICATED, TOOK THREE STRIKES AT THE
RECOMMENDATIONS OF THE EXAMINER.  ON APRIL 22 IT REVERSED HIS FINDING
ON PUBLIC CONVENIENCE AND NECESSITY BECAUSE THE EVIDENCE WAS
INSUFFICIENT AS TO PRICE.  IT SAID: 

"THE IMPORTANCE OF THIS ISSUE IN CERTIFICATING THIS SALE CANNOT
EASILY BE OVEREMPHASIZED.  THIS IS THE LARGEST RESERVE EVER COMMITTED
TO ONE SALE.  THIS IS THE FIRST SALE FROM THE NEWLY DEVELOPED OFFSHORE
FIELDS FROM WHICH LARGE PROPORTIONS OF FUTURE GAS SUPPLIES WILL BE
TAKEN.  THIS IS THE HIGHEST PRICE LEVEL AT WHICH THE SALE OF GAS TO
TENNESSEE GAS HAS BEEN PROPOSED. 

"THESE FACTORS MAKE IT ABUNDANTLY EVIDENT THAT, IN THE PUBLIC
INTEREST, THIS CRUCIAL SALE SHOULD NOT BE PERMANENTLY CERTIFICATED
UNLESS THE RATE LEVEL HAS BEEN SHOWN TO BE IN THE PUBLIC INTEREST." 
ID., AT 575. 

THE COMMISSION GRANTED PETITIONERS TEMPORARY CERTIFICATES AND
REMANDED THE PROCEEDING TO THE EXAMINER "TO DETERMINE AT WHAT RATES THE
PUBLIC CONVENIENCE AND NECESSITY REQUIRES THESE SALES" OF NATURAL GAS
TO TENNESSEE UNDER A PERMANENT CERTIFICATE.  ID., AT 576.  THE
PRODUCERS IMMEDIATELY MOVED FOR MODIFICATION, ASSERTING THAT THEY COULD
NOT PRESENT SUFFICIENT EVIDENCE "WITHIN ANY REASONABLE PERIOD IN THE
FUTURE" TO MEET THE NECESSITIES OF THE REMAND AND, FURTHER, COULD NOT
"AFFORD TO COMMENCE CONSTRUCTION UNTIL AT LEAST THE INITIAL RATE
(QUESTION) IS RESOLVED."  THE COMMISSION ON MAY 20, HOWEVER, REITERATED
ITS BELIEF THAT "THE RECORD DOES NOT CONTAIN SUFFICIENT EVIDENCE ON
WHICH TO BASE A FINDING THAT THE PUBLIC CONVENIENCE AND NECESSITY
REQUIRES THE SALE OF THE GAS AT THE PARTICULAR RATE LEVEL."  17 F.P.C.
732, 733-734.  IN AN EFFORT TO AMELIORATE THE SITUATION REPRESENTED BY
THE PRODUCERS, THE COMMISSION DID GRANT THE CERTIFICATES BUT
CONDITIONED THEM UPON THE PRODUCERS' ACCEPTANCE OF AN INITIAL PRICE OF
17 CENTS PER MCF (PLUS 1-CENT TAX), WHICH WAS THE HIGHEST PRICE
THERETOFORE PAID BY TENNESSEE IN THE SOUTHWEST.  IT ALSO AGREED THAT
ONE DAY AFTER THE COMMENCEMENT OF DELIVERIES OF GAS THE 17-CENT PRICE
WOULD BE ESCALATED TO 21.4 CENTS (PLUS 1 CENT FOR TAXES), THE INCREASE
TO BE COLLECTED UNDER BOND, SUBJECT TO PROOF AND REFUND UNDER THE
PROVISIONS OF SEC. 4 OF THE ACT.  THIS TIME TENNESSEE SOUGHT REHEARING
ADVISING THE COMMISSION THAT THE PRODUCERS WOULD NOT ACCEPT THE 17-CENT
INITIAL PRICE ORDER OF MAY 20 AND THAT "THE CONTRACTS WILL BE
TERMINATED" WITH THE CONSEQUENT "LOSS OF NATURAL GAS SUPPLIES" REQUIRED
FOR TENNESSEE'S CUSTOMERS.  THE COMMISSION, AFTER ORAL ARGUMENT, DID
NOT WITHDRAW ITS PREVIOUS FINDINGS IN THE MATTER BUT PREDICATED ITS
THIRD ORDER ON "THE PRIMARY CONSIDERATION THAT THE PUBLIC SERVED
THROUGH THE TENNESSEE GAS SYSTEM IS GREATLY IN NEED OF INCREASED
SUPPLIES OF NATURAL GAS  ...  .  IN VIEW OF THESE CIRCUMSTANCES AND THE
FACT THAT THE RECORD DOES NOT SHOW THAT THE 21.4-CENT (PLUS 1 CENT FOR
TAXES) RATE IS NECESSARILY EXCESSIVE, WE AGREE WITH THE PRESIDING
EXAMINER THAT THIS CERTIFICATE PROCEEDING  ...  SHOULD NOT ASSUME THE
CHARACTER OF A RATE PROCEEDING UNDER SECTION 5(A)."  17 F.P.C. 880,
881.  ASSERTING THAT IT WAS OF THE OPINION THAT IT WOULD BE ABLE "TO
ADEQUATELY PROTECT THE PUBLIC INTEREST WITH RESPECT TO THE MATTER OF
PRICE," IBID., IT ORDERED THE CERTIFICATES ISSUED AND DIRECTED THAT
SINCE THE PRICE "IS HIGHER THAN TENNESSEE GAS IS PAYING UNDER ANY OTHER
CONTRACT, IT SHOULD BE SUBJECT TO PROMPT INVESTIGATION UNDER SECTION
5(A) AS TO ITS REASONABLENESS."  ID., AT 882. 

WE NOTE THAT THE COMMISSION DID NOT SEEK CERTIORARI HERE BUT HAS
FILED A BRIEF AMICUS CURIAE.  (FN6)  IT DOES NOT URGE REVERSAL OF THE
JUDGMENT BUT ATTACKS THE GROUND UPON WHICH THE COURT OF APPEALS
BOTTOMED ITS REMAND, NAMELY, LACK OF COMMISSION JURISDICTION TO
CONSIDER THE LIMITED PROPOSAL OF PETITIONERS.  THE COMMISSION'S BRIEF
SUGGESTS THAT THE COURT NOT REACH THE ISSUE TENDERED BY PETITIONERS,
I.E., MUST THE COMMISSION, IN A SEC. 7 PROCEEDING, DECIDE WHETHER THE
PROPOSED INITIAL RATE IS JUST AND REASONABLE?  INSTEAD, THE COMMISSION
SAYS, IF THE JUDGMENT MUST BE AFFIRMED IT WOULD BE BETTER TO BASE THE
AFFIRMANCE ON THE GROUND THAT ITS ORDER "WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE, AND HENCE CONSTITUTED AN ABUSE OF DISCRETION IN
THE CIRCUMSTANCES OF THE PARTICULAR CASE  ...  ."  BRIEF FOR THE
FEDERAL POWER COMMISSION, P. 31.  PETITIONERS OPPOSE SUCH A
DISPOSITION, CONTENDING THE EVIDENCE WAS QUITE SUBSTANTIAL. 

                      I. JURISDICTION OF THE COMMISSION. 

THE COURT OF APPEALS THOUGHT THAT THE COMMISSION HAD NO JURISDICTION
TO CONSIDER PETITIONERS' PROPOSAL BECAUSE IT WAS LIMITED TO A FIRM
PRICE AGREED UPON BY THE PARTIES APPLICANT.  THEIR REFUSAL TO ACCEPT
CERTIFICATION AT A LOWER PRICE, EVEN TO THE EXTENT OF CANCELING THEIR
CONTRACTS AND WITHHOLDING THE GAS FROM INTERSTATE COMMERCE, THE COURT
HELD, RESULTED IN THE COMMISSION'S LOSING JURISDICTION.  WE DO NOT
BELIEVE THAT THIS FOLLOWS.  NO SALES, INTRASTATE OR INTERSTATE, OF GAS
HAD EVER BEEN MADE FROM THE LEASES INVOLVED HERE.  THE CONTRACTS UNDER
WHICH THE PETITIONERS PROPOSED TO SELL THE GAS IN THE INTERSTATE MARKET
WERE ALL CONDITIONED ON THE ISSUANCE OF CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY.  A FAILURE BY EITHER PARTY TO SECURE SUCH
CERTIFICATES RENDERED THE CONTRACTS SUBJECT TO TERMINATION.  CERTAINLY
THE FILING OF THE APPLICATION FOR A CERTIFICATE DID NOT CONSTITUTE A
DEDICATION TO THE INTERSTATE MARKET OF THE GAS RECOVERABLE UNDER THESE
LEASES.  NOR IS THERE DOUBT THAT THE PRODUCERS WERE AT LIBERTY TO
REFUSE CONDITIONAL CERTIFICATES PROPOSED BY THE COMMISSION'S SECOND
ORDER.  WHILE THE REFUSAL MIGHT HAVE BEEN COUCHED IN MORE DIPLOMATIC
LANGUAGE, IT HAD NO EFFECT ON THE COMMISSION'S POWER TO ACT ON THE
REHEARING REQUESTED.  EVEN THOUGH THE COMMISSION DID MARCH UP THE HILL
ONLY TO MARCH DOWN AGAIN UPON REACHING THE SUMMIT WE CANNOT SAY THAT
THIS ABOUT-FACE DEPRIVED IT OF JURISDICTION.  WE FIND NOTHING ILLEGAL
IN THE PETITIONER'S REJECTION OF THE ALTERNATIVE PRICE PROPOSED BY THE
COMMISSION AND THEIR STANDING FIRM ON THEIR OWN. 
 II.  THE VALIDITY OF THE ORDER. 

THE PURPOSE OF THE NATURAL GAS ACT WAS TO UNDERWRITE JUST AND
REASONABLE RATES TO THE CONSUMERS OF NATURAL GAS.  FEDERAL POWER COMM'N
V. HOPE NATURAL GAS CO., 320 U.S. 591 (1944).  AS THE ORIGINAL SEC.
7(C) PROVIDED, IT WAS "THE INTENTION OF CONGRESS THAT NATURAL GAS SHALL
BE SOLD IN INTERSTATE COMMERCE FOR RESALE FOR ULTIMATE PUBLIC
CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE AT
THE LOWEST POSSIBLE REASONABLE RATE CONSISTENT WITH THE MAINTENANCE OF
ADEQUATE SERVICE IN THE PUBLIC INTEREST."  52 STAT. 825.  (FN7)  THE
ACT WAS SO FRAMED AS TO AFFORD CONSUMERS A COMPLETE, PERMANENT AND
EFFECTIVE BOND OF PROTECTION FROM EXCESSIVE RATES AND CHARGES.  THE
HEART OF THE ACT IS FOUND IN THOSE PROVISIONS REQUIRING INITIALLY THAT
ANY "PROPOSED SERVICE, SALE, OPERATION, CONSTRUCTION, EXTENSION, OR
ACQUISITION  ...  WILL BE REQUIRED BY THE PRESENT OR FUTURE PUBLIC
CONVENIENCE AND NECESSITY," SEC. 7(E), 15 U.S.C. SEC. 717FE), AND THAT
ALL RATES AND CHARGES "MADE, DEMANDED, OR RECEIVED" SHALL BE "JUST AND
REASONABLE," SEC. 4, 15 U.S.C. SEC. 717C.  THE ACT PROHIBITS SUCH
MOVEMENTS UNLESS AND UNTIL THE COMMISSION ISSUES A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY THEREFORE, SEC. 7(C), 15 U.S.C. SEC.
717FC).  SECTION 7(E) VESTS IN THE COMMISSION CONTROL OVER THE
CONDITIONS UNDER WHICH GAS MAY BE INITIALLY DEDICATED TO INTERSTATE
USE.  MOREOVER, ONCE SO DEDICATED THERE CAN BE NO WITHDRAWAL OF THAT
SUPPLY FROM CONTINUED INTERSTATE MOVEMENT WITHOUT COMMISSION APPROVAL. 
THE GAS OPERATOR, ALTHOUGH TO THIS EXTENT A CAPTIVE SUBJECT TO THE
JURISDICTION OF THE COMMISSION, IS NOT WITHOUT REMEDY TO PROTECT
HIMSELF.  HE MAY, UNLESS OTHERWISE BOUND BY CONTRACT, UNITED GAS PIPE
LINE CO. V MOBILE GAS SERVICE CORP., 350 U.S. 332 (1956), FILE NEW RATE
SCHEDULES WITH THE COMMISSION.  THIS RATE BECOMES EFFECTIVE UPON ITS
FILING, SUBJECT TO THE 5-MONTH SUSPENSION PROVISION OF SEC. 4 AND THE
POSTING OF A BOND, WHERE REQUIRED.  THIS NOT ONLY GIVES THE NATURAL GAS
COMPANY OPPORTUNITY TO INCREASE ITS RATES WHERE JUSTIFIED BUT LIKEWISE
GUARANTEES THAT THE CONSUMER MAY RECOVER REFUNDS FOR MONEYS PAID UNDER
EXCESSIVE INCREASES.  THE OVERRIDING INTENT OF THE CONGRESS TO GIVE
FULL PROTECTIVE COVERAGE TO THE CONSUMER AS TO PRICE IS FURTHER
EMPHASIZED IN SEC. 5 OF THE ACT, 15 U.S.C. SEC. 717D, WHICH AUTHORIZES
THE COMMISSION SUA SPONTE, OR OTHERWISE, TO INSTITUTE AN INVESTIGATION
INTO EXISTING RATES AND CHARGES AND TO FIX THEM AT A JUST AND
REASONABLE LEVEL.  UNDER THIS SECTION, HOWEVER, THE RATE FOUND BY THE
COMMISSION TO BE JUST AND REASONABLE BECOMES EFFECTIVE PROSPECTIVELY
ONLY.  GAS PURCHASERS, THEREFORE, HAVE NO PROTECTION FROM EXCESSIVE
CHARGES COLLECTED DURING THE PENDENCY OF A SEC. 5 PROCEEDING. 

IN VIEW OF THIS FRAMEWORK IN WHICH THE COMMISSION IS AUTHORIZED AND
DIRECTED TO ACT, THE INITIAL CERTIFICATING OF A PROPOSAL UNDER SEC.
7(E) OF THE ACT AS BEING REQUIRED BY THE PUBLIC CONVENIENCE AND
NECESSITY BECOMES CRUCIAL.  THIS IS TRUE BECAUSE THE DELAY INCIDENT TO
DETERMINATION IN SEC. 5 PROCEEDINGS THROUGH WHICH INITIAL CERTIFICATED
RATES ARE REVIEWABLE APPEARS NIGH INTERMINABLE.  ALTHOUGH PHILLIPS
PETROLEUM CO. V. WISCONSIN, 347 U.S. 672, WAS DEICDED IN 1954, CASES
INSTITUTED UNDER SEC. 5 ARE STILL IN THE INVESTIGATIVE STAGE.  THIS
LONG DELAY, WITHOUT THE PROTECTION OF REFUND, AS IS POSSIBLE IN A SEC.
4 PROCEEDING, WOULD PROVIDE A WINDFALL FOR THE NATURAL GAS COMPANY WITH
A CONSEQUENT SQUALL FOR THE CONSUMERS.  THIS THE CONGRESS DID NOT
INTEND.  MOREOVER, THE FACT THAT THE COMMISSION WAS NOT GIVEN THE POWER
TO SUSPEND INITIAL RATES UNDER SEC. 7 MAKES IT THE MORE IMPORTANT, AS
THE COMMISSION ITSELF SAYS, THAT "THIS CRUCIAL SALE SHOULD NOT BE
PERMANENTLY CERTIFICATED UNLESS THE RATE LEVEL HAS BEEN SHOWN TO BE IN
THE PUBLIC INTEREST."  17 F.P.C. 563, 575. 

THIS IS ESPECIALLY TRUE WHERE, AS HERE, THE INITIAL PRICE WILL SET A
PATTERN IN AN AREA WHERE ENORMOUS RESERVES OF GAS APPEAR TO BE
PRESENT.  WE NOTE THAT IN PETITIONERS' PROOF A MAP OF THE CONTINENTAL
SHELF AREA OFF OF THE COAST OF LOUISIANA SHOWS THAT THE LEASES HERE
INVOLVED COVER BUT 17 OUT OF A BLOCKED-OUT AREA COVERING SOME 900
BLOCKS OF 5,000 ACRES EACH.  THE POTENTIAL OF THIS VAST ACREAGE, IN
LIGHT OF DISCOVERIES ALREADY MADE AS SHOWN BY THE RECORD, IS
STUPENDOUS.  THE COMMISSION HAS FOUND THAT THE TRANSACTION HERE COVERS
THE LARGEST RESERVE EVER COMMITTED TO INTERSTATE COMMERCE IN A SINGLE
SALE.  INDICATIONS ARE THAT IT IS BUT A PUFF IN COMPARISON TO THE
ENORMOUS POTENTIALS PRESENT UNDER THE SEABED OF THE GULF.  THE PRICE
CERTIFICATED WILL IN EFFECT BECOME THE FLOOR FOR FUTURE CONTRACTS IN
THE AREA.  THIS HAS BEEN PROVEN BY CONDITIONS IN SOUTHERN LOUISIANA
WHERE PRICES HAVE NOW VAULTED FROM 17 CENTS TO OVER 23 CENTS PER MCF. 
NEW PRICE PLATEAUS WILL THUS BE CREATED AS NEW CONTRACTS ARE MADE AND
UNLESS CONTROLLED WILL RESULT IN "EXPLOITATION" AT THE EXPENSE OF THE
CONSUMER, WHO EVENTUALLY PAYS FOR THE INCREASES IN HIS MONTHLY BILL. 

IT IS TRUE THAT THE ACT DOES NOT REQUIRE A DETERMINATION OF JUST AND
REASONABLE RATES IN A SEC. 7 PROCEEDING AS IT DOES IN ONE UNDER EITHER
SEC. 4 OR SEC. 5.  NOR DO WE HOLD THAT A "JUST AND REASONABLE" RATE
HEARING IS A PREREQUISITE TO THE ISSUANCE OF PRODUCER CERTIFICATES. 
WHAT WE DO SAY IS THAT THE INORDINATE DELAY PRESENTLY EXISTING IN THE
PROCESSING OF SEC. 5 PROCEEDINGS REQUIRES A MOST CAREFUL SCRUTINY AND
RESPONSIBLE REACTION TO INITIAL PRICE PROPOSALS OF PRODUCERS UNDER SEC.
7.   THEIR PROPOSALS MUST BE SUPPORTED BY EVIDENCE SHOWING THEIR
NECESSITY TO "THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY"
BEFORE PERMANENT CERTIFICATES ARE ISSUED.  THIS IS NOT TO SAY THAT
RATES ARE THE ONLY FACTOR BEARING ON THE PUBLIC CONVENIENCE AND
NECESSITY, FOR SEC. 7(E) REQUIRES THE COMMISSION TO EVALUATE ALL
FACTORS BEARING ON THE PUBLIC INTEREST.  THE FACT THAT PRICES HAVE
LEAPED FROM ONE PLATEAU TO THE HIGHER LEVELS OF ANOTHER, AS IS
INDICATED HERE, DOES MAKE PRICE A CONSIDERATION OF PRIME IMPORTANCE. 
THIS IS THE MORE IMPORTANT DURING THIS FORMATIVE PERIOD WHEN THE GROUND
RULES OF PRODUCER REGULATION ARE BEING EVOLVED.  WHERE THE APPLICATION
ON ITS FACE OR ON PRESENTATION OF EVIDENCE SIGNALS THE EXISTENCE OF A
SITUATION THAT PROBABLY WOULD NOT BE IN THE PUBLIC INTEREST, A
PERMANENT CERTIFICATE SHOULD NOT BE ISSUED. 

THERE IS, OF COURSE, AVAILABLE IN SUCH A SITUATION, A METHOD BY WHICH
THE APPLICANT AND THE COMMISSION CAN ARRIVE AT A RATE THAT IS IN
KEEPING WITH THE PUBLIC CONVENIENCE AND NECESSITY.  THE CONGRESS, IN
SEC. 7(E), HAS AUTHORIZED THE COMMISSION TO CONDITION CERTIFICATES IN
SUCH MANNER AS THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE.  WHERE
THE PROPOSED PRICE IS NOT IN KEEPING WITH THE PUBLIC INTEREST BECAUSE
IT IS OUT OF LINE OR BECAUSE ITS APPROVAL MIGHT RESULT IN A TRIGGERING
OF GENERAL PRICE RISES OR AN INCREASE IN THE APPLICANT'S EXISTING RATES
BY REASON OF "FAVORED NATION" CLAUSES OR OTHERWISE, THE COMMISSION IN
THE EXERCISE OF ITS DISCRETION MIGHT ATTACH SUCH CONDITIONS AS IT
BELIEVES NECESSARY. 

THIS IS NOT AN ENCROACHMENT UPON THE INITIAL RATE-MAKING PRIVILEGES
ALLOWED NATURAL GAS COMPANIES UNDER THE ACT, UNITED GAS PIPE LINE CO.
V. MOBILE GAS SERVICE CORP., SUPRA, BUT MERELY THE EXERCISE OF THAT
DUTY IMPOSED ON THE COMMISSION TO PROTECT THE PUBLIC INTEREST IN
DETERMINING WHETHER THE ISSUANCE OF THE CERTIFICATE IS REQUIRED BY THE
PUBLIC CONVENIENCE AND NECESSITY, WHICH IS THE ACT'S STANDARD IN SEC. 7
APPLICATIONS.  IN GRANTING SUCH CONDITIONAL CERTIFICATES, THE
COMMISSION DOES NOT DETERMINE INITIAL PRICES NOR DOES IT OVERTURN THOSE
AGREED UPON BY THE PARTIES.  RATHER, IT SO CONDITIONS THE CERTIFICATE
THAT THE CONSUMING PUBLIC MAY BE PROTECTED WHILE THE JUSTNESS AND
REASONABLENESS OF THE PRICE FIXED BY THE PARTIES IS BEING DETERMINED
UNDER OTHER SECTIONS OF THE ACT.  SECTION 7 PROCEDURES IN SUCH
SITUATIONS THUS ACT TO HOLD THE LINE AWAITING ADJUDICATION OF A JUST
AND REASONABLE RATE.  THUS THE PURPOSE OF THE CONGRESS "TO CREATE A
COMPREHENSIVE AND EFFECTIVE REGULATORY SCHEME," PANHANDLE EASTERN PIPE
LINE CO. V. PUBLIC SERVICE COMM'N OF INDIANA, 332 U.S. 507, 520 (1947),
IS GIVEN FULL RECOGNITION.  AND SEC. 7 IS GIVEN ONLY THAT SCOPE
NECESSARY FOR "A SINGLE STATUTORY SCHEME UNDER WHICH ALL RATES ARE
ESTABLISHED INITIALLY BY THE NATURAL GAS COMPANIES, BY CONTRACT OR
OTHERWISE, AND ALL RATES ARE SUBJECT TO BEING MODIFIED BY THE
COMMISSION ...  ."  UNITED GAS PIPE LINE CO. V. MOBILE GAS SERVICE
CORP., SUPRA, AT 341.  ON THE OTHER HAND, IF UNCONDITIONAL CERTIFICATES
ARE ISSUED WHERE THE RATE IS NOT CLEARLY SHOWN TO BE REQUIRED BY THE
PUBLIC CONVENIENCE AND NECESSITY, RELIEF IS LIMITED TO SEC. 5
PROCEEDINGS, AND, AS WE HAVE INDICATED, FULL PROTECTION OF THE PUBLIC
INTEREST IS NOT AFFORDED. 

OUR EXAMINATION OF THE RECORD HERE INDICATES THAT THERE WAS
INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF PUBLIC CONVENIENCE AND
NECESSITY PREREQUISITE TO THE ISSUANCE OF THE PERMANENT CERTIFICATES. 
THE WITNESSES TENDERED DEVELOPED LITTLE MORE INFORMATION THAN WAS
INCLUDED IN THE PRINTED CONTRACTS.  AS THE PROPOSED CONTRACT PRICE WAS
HIGHER THAN ANY PAID BY TENNESSEE, INCLUDING OFFSHORE PRODUCTION IN THE
WEST DELTA AREA OF LOUISIANA, IT IS SURPRISING THAT EVIDENCE, IF
AVAILABLE, WAS NOT INTRODUCED AS TO THE RELATIVE COSTS OF PRODUCTION IN
THE TWO SUBMERGED AREAS.  MOREOVER THE RECORD INDICATES THAT THE
PROPOSED PRICE WAS SOME 70% HIGHER THAN THE WEIGHTED AVERAGE COST OF
GAS TO TENNESSEE; STILL NO EFFORT WAS MADE TO GIVE THE "REASON WHY." 
MORE DAMAGING, WAS THE EVIDENCE THAT THIS PRICE WAS GREATLY IN EXCESS
OF THAT WHICH TENNESSEE PAYS FROM ANY LEASE IN SOUTHERN LOUISIANA. 
LIKEWISE THE $16,000,000 PIPELINE TO THE PRODUCERS' WELLS WAS
UNSUPPORTED BY EVIDENCE OF PRACTICE OR CUSTOM.  RESPONDENTS CONTEND -
AND IT STANDS UNDENIED - THAT THIS ALONE WOULD ADD 2 CENTS PER MCF TO
THE COST OF THE GAS.  AGAIN THE FREE MOVEMENT OF DISTILLATES RETAINED
BY THE PRODUCERS WAS "SHRUGGED OFF" AS BEING DE MINIMIS, WITHOUT ANY
SUPPORTING DATA WHATEVER.  NOR WAS THE EVIDENCE AS TO WHETHER THE
CERTIFICATION OF THIS PRICE WOULD "TRIGGER" INCREASES IN LEASES WITH
"FAVORED NATION" CLAUSES CONVINCING, AND THE CLAIM THAT IT WOULD NOT
LEAD TO AN INCREASE IN RATES BY TENNESSEE WAS NOT ONLY UNSUPPORTED BUT
HAS ALREADY PROVEN UNFOUNDED.  (FN8) 

NOR DO WE FIND ANY SUPPORT WHATEVER IN THE RECORD FOR THE CONCLUSORY
FINDING ON WHICH THE ORDER WAS BASED THAT "THE PUBLIC SERVED THROUGH
TENNESSEE GAS SYSTEM IS GREATLY IN NEED OF INCREASED SUPPLIES OF
NATURAL GAS."  17 F.P.C. 880, 881.  ADMITTEDLY ANY SUCH NEED WAS
WRAPPED UP IN THE COMMISSION'S ACTION IN DOCKET G-11107, WHERE
TENNESSEE WAS ASKING FOR PERMISSION TO ENLARGE ITS FACILITIES. 
HOWEVER, THE TWO DOCKETS WERE NOT CONSOLIDATED AND THE PRESIDING
EXAMINER CONDITIONED HIS APPROVAL HERE ON THE GRANTING OF THE
APPLICATION IN DOCKET G-11107, NO PART OF WHICH RECORD IS HERE. 
NEITHER IS THERE EVIDENCE SUPPORTING THE FINDING THAT THE PRODUCERS
"WOULD SEEK TO DISPOSE OF THEIR GAS ELSEWHERE THAN TO TENNESSEE GAS AND
THE INTERSTATE MARKET," IBID.  WHILE THE COMMISSION SAYS THAT
STATEMENTS WERE MADE IN ARGUMENT, APPARENTLY BY COUNSEL, THAT THIS WAS
THE CASE, WE FIND NO SUCH TESTIMONY.  SINCE SOME 90% OF ALL COMMERCIAL
GAS MOVES INTO THE INTERSTATE MARKET, THE SALE OF SUCH VAST QUANTITIES
AS AVAILABLE HERE WOULD HARDLY BE PROFITABLE EXCEPT INTERSTATE. 

THESE CONSIDERATIONS REQUIRE AN AFFIRMANCE OF THE JUDGMENT WITH
INSTRUCTIONS THAT THE APPLICATIONS BE REMANDED TO THE COMMISSION FOR
FURTHER PROCEEDINGS.  IT IS SO ORDERED. 

FN1  SECTION 7(E), 15 U.S.C. SEC. 717FE), PROVIDES: 

"(E)  EXCEPT IN THE CASES GOVERNED BY THE PROVISOS CONTAINED IN
SUBSECTION (C) OF THIS SECTION, A CERTIFICATE SHALL BE ISSUED TO ANY
QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE WHOLE OR ANY PART OF THE
OPERATION, SALE, SERVICE, CONSTRUCTION, EXTENSION, OR ACQUISITION
COVERED BY THE APPLICATION, IF IT IS FOUND THAT THE APPLICANT IS ABLE
AND WILLING PROPERLY TO DO THE ACTS AND TO PERFORM THE SERVICE PROPOSED
AND TO CONFORM TO THE PROVISIONS OF THE ACT AND THE REQUIREMENTS,
RULES, AND REGULATIONS OF THE COMMISSION THEREUNDER, AND THAT THE
PROPOSED SERVICE, SALE, OPERATION, CONSTRUCTION, EXTENSION, OR
ACQUISITION, TO THE EXTENT AUTHORIZED BY THE CERTIFICATE, IS OR WILL BE
REQUIRED BY THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY;
OTHERWISE SUCH APPLICATION SHALL BE DENIED.  THE COMMISSION SHALL HAVE
THE POWER TO ATTACH TO THE ISSUANCE OF THE CERTIFICATE AND TO THE
EXERCISE OF THE RIGHTS GRANTED THEREUNDER SUCH REASONABLE TERMS AND
CONDITIONS AS THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE." 

FN2  THESE ARE THE ATLANTIC REFINING COMPANY, CITIES SERVICE
PRODUCTION COMPANY, CONTINENTAL OIL COMPANY, AND TIDEWATER OIL COMPANY,
ALL PETITIONERS IN NO. 518 AND SOMETIMES KNOWN AS CATCO. 

FN3  TENNESSEE OPERATES A PIPELINE SYSTEM EXTENDING FROM GAS FIELDS
IN TEXAS AND LOUISIANA THROUGH ARKANSAS, MISSISSIPPI, TENNESSEE,
KENTUCKY, WEST VIRGINIA, OHIO, PENNSYLVANIA, NEW JERSEY, NEW YORK AND
INTO MASSACHUSETTS, NEW HAMPSHIRE, RHODE ISLAND AND CONNECTICUT.  IT
SERVES SOME 80 DISTRIBUTING COMPANIES WHICH IN TURN SERVE MILLIONS OF
CONSUMERS IN THE VARIOUS STATES WHICH ITS PIPELINE TRAVERSES. 

FN4  THESE INCREASES WERE LATER LIMITED TO 2 CENTS PER MCF.  THE
ESCALATOR CLAUSES APPARENTLY WERE INSERTED IN LIEU OF "FAVORED NATION"
CLAUSES, BUT BY LETTER, NOT A PART OF THE CONTRACTS, "FAVORED NATION"
CLAUSES WERE TO BE SUBSTITUTED AT A LATER DATE ON CERTAIN
CONTINGENCIES. 

FN5  THE EXACT FINDING IS AS FOLLOWS:    "INCLUDING THE GAS WHICH
TENNESSEE PROPOSES TO PURCHASE UNDER THESE CONTRACTS, SOME 240,000
M.C.F. PER DAY (14.73 P.S.I.A.), IT IS ESTIMATED THAT THE WEIGHTED
AVERAGE COST OF ALL GAS TO TENNESSEE IN 1958 WILL BE SOME 13.70 CENTS
PER M.C.F., AS COMPARED WITH 12.73 CENTS IF THE GAS HERE PROPOSED TO BE
PURCHASED IS EXCLUDED."  17 F.P.C. 563, 570. 

THUS IS THE .97-CENT FIGURE DERIVED.  IT IS, HOWEVER, A MISLEADING
FIGURE, FOR THE ESTIMATE FOR 1958 INCLUDES THE 22.4-CENT GAS FOR ONLY
TWO MONTHS OF 1958, NOVEMBER AND DECEMBER.  THERE IS NO INDICATION IN
THE RECORD AS TO WHAT THE COST INCREASE WOULD BE IF THE WEIGHTED
AVERAGE WERE CALCULATED BY INCLUDING THE 22.4-CENT GAS FOR THE FULL
YEAR.    FN6  THE BRIEF IS NOT SIGNED BY THE SOLICITOR GENERAL BUT BY
BOTH THE GENERAL COUNSEL AND THE SOLICITOR OF THE FEDERAL POWER
COMMISSION. 

FN7  THE 1942 AMENDMENTS TO SEC. 7, 56 STAT. 83, WERE NOT INTENDED TO
CHANGE THIS DECLARATION OF PURPOSE.  SEE HEARINGS, HOUSE INTERSTATE AND
FOREIGN COMMERCE COMMITTEE, ON H.R. 5249, 77TH CONG., 1ST SESS. 18-19;
H.R. REP. NO. 1290, 77TH CONG., 1ST SESS.; S. REP. NO. 948, 77TH CONG.,
2D SESS. 

FN8  TENNESSEE HAS SUBSEQUENTLY FILED AN APPLICATION WITH THE F.P.C.
REQUESTING HIGHER RATES DESIGNED TO PRODUCE SOME $19,000,000 ADDITIONAL
ANNUAL REVENUE.  TENNESSEE GAS TRANSMISSION CO., DOCKET G-17166. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER JOINS, CONCURRING. 

I AGREE WITH THE JUDGMENT OF THE COURT ON THE GROUND THAT THE
FINDINGS UPON WHICH THE COMMISSION BASED ITS CONCLUSION THAT THE PUBLIC
CONVENIENCE AND NECESSITY REQUIRED THE ISSUANCE TO PETITIONERS OF
UNCONDITIONAL FINAL CERTIFICATES FIND NO SUPPORT IN THE RECORD.  THERE
IS NO EVIDENCE SUPPORTING WHAT APPEAR TO BE THE CRUCIAL FINDINGS IN (1)
"THE PUBLIC SERVED THROUGH THE TENNESSEE GAS SYSTEM IS GREATLY IN NEED
OF INCREASED SUPPLIES OF NATURAL GAS," PARTICULARLY INSOFAR AS THIS
FINDING IMPLIES THAT THIS NEED IS IMMEDIATE AND CANNOT BE SATISFIED
FROM TENNESSEE'S EXISTING RESERVES, AND THAT (2) THERE WAS SERIOUS
DANGER THAT PRODUCER PETITIONERS' GAS WOULD BE PERMANENTLY LOST TO THE
INTERSTATE MARKET UNLESS AN UNCONDITIONAL CERTIFICATE WERE GRANTED ON
THEIR TERMS.  THIS MAKES IT UNNECESSARY TO CONSIDER AT THIS STAGE ANY
OF THE OTHER QUESTIONS SOUGHT TO BE PRESENTED BY THE PARTIES. 
..END :
















PITTSBURGH PLATE GLASS CO. V. UNITED STATES 360 U.S. 395 


NO. 489.  ARGUED APRIL 28, 1959.  - DECIDED JUNE 22, 1959.* - 260 F.2D
397, AFFIRMED. 

*TOGETHER WITH NO. 491, GALAX MIRROR CO., INC., ET AL. V. UNITED
STATES, ALSO ON CERTIORARI TO THE SAME COURT, ARGUED APRIL 29, 1959. 


PETITIONERS WERE CONVICTED IN A FEDERAL DISTRICT COURT OF CONSPIRING
TO FIX PRICES OF PLAIN GLASS MIRRORS IN VIOLATION OF SEC. 1 OF THE
SHERMAN ACT.  AFTER A KEY GOVERNMENT WITNESS HAD TESTIFIED AT THEIR
TRIAL AND HAD ADMITTED THAT HE HAD TESTIFIED ON THE SAME GENERAL
SUBJECT MATTER BEFORE THE GRAND JURY WHICH INDICTED PETITIONERS, THEIR
COUNSEL MOVED FOR PRODUCTION OF THE GRAND JURY MINUTES, NOT ATTEMPTING
TO SHOW ANY PARTICULARIZED NEED FOR THEM BUT CLAIMING AN ABSOLUTE RIGHT
TO THEIR PRODUCTION UNDER JENCKS V. UNITED STATES, 353 U.S. 657.  THIS
MOTION WAS DENIED BY THE TRIAL JUDGE.  HELD:  UNDER RULE 6(E) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE THE QUESTION WHETHER THE GRAND JURY
MINUTES SHOULD BE PRODUCED WAS COMMITTED TO THE SOUND DISCRETION OF THE
TRIAL JUDGE; NO ABUSE OF HIS DISCRETION HAS BEEN SHOWN; AND
PETITIONERS' CONVICTION IS SUSTAINED.  PP. 396-401. 

(A)  NEITHER JENCKS V. UNITED STATES, SUPRA, NOR 18 U.S.C. SEC. 3500,
WHICH SUPERSEDED ITS DOCTRINE, HAS ANY BEARING ON THIS CASE, SINCE
NEITHER OF THEM RELATES TO GRAND JURY MINUTES.  P. 398. 

(B)  UNDER RULE 6(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, THE
QUESTION WHETHER GRAND JURY MINUTES SHOULD BE DISCLOSED IS COMMITTED TO
THE SOUND DISCRETION OF THE TRIAL JUDGE.  PP. 398-399. 

(C)  NO PARTICULARIZED NEED FOR PRODUCTION OF THE GRAND JURY'S
MINUTES HAVING BEEN SHOWN, THE TRIAL JUDGE DID NOT ERR IN DENYING THEIR
PRODUCTION.  UNITED STATES V. PROCTER & GAMBLE, 356 U.S. 677.  PP. 399
401. 

PITTSBURGH PLATE GLASS CO. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS STAND CONVICTED ON A SINGLE-COURT INDICTMENT CHARGING A
CONSPIRACY UNDER SEC. 1 OF THE SHERMAN ACT.  THEY CONTENT THAT THE
TRIAL JUDGE ERRED IN REFUSING TO PERMIT THEM TO INSPECT THE GRAND JURY
MINUTES COVERING THE TESTIMONY BEFORE THAT BODY OF A KEY GOVERNMENT
WITNESS AT THE TRIAL.   THE COURT OF APPEALS AFFIRMED THE CONVICTIONS,
260 F.2D 397.  WITH REFERENCE TO THE PRESENT CLAIM, IT HELD THAT RULE
6(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE (FN1) COMMITTED THE
INSPECTION OR NOT OF GRAND JURY MINUTES TO THE SOUND DISCRETION OF THE
TRIAL JUDGE, AND THAT IN THIS INSTANCE, NO ABUSE OF THAT DISCRETION HAD
BEEN SHOWN.  WE GRANTED CERTIORARI LIMITED TO THE QUESTION POSED BY
THIS RULING.  358 U.S. 917, 918.  WE CONCLUDE THAT IN THE CIRCUMSTANCES
OF THIS CASE THE TRIAL COURT DID NOT ERR IN REFUSING TO MAKE JONAS'
GRAND JURY TESTIMONY AVAILABLE TO PETITIONERS FOR USE IN CROSS
EXAMINATION. 

THE INDICTMENT RETURNED IN THE CASE NAMED AS DEFENDANTS SEVEN
CORPORATIONS, ALL MANUFACTURERS OF MIRRORS, AND THREE OF THEIR
OFFICES.  HOWEVER, ONLY THREE OF THE CORPORATIONS ARE PETITIONERS HERE,
ALONG WITH ONE INDIVIDUAL, J.A. MESSER, SR.  THE INDICTMENT CHARGED A
CONSPIRACY TO FIX THE PRICE OF PLAIN PLATE GLASS MIRRORS SOLD IN
INTERSTATE COMMERCE.  IT IS NOT NECESSARY FOR OUR PURPOSES TO DETAIL
THE FACTS OF THIS LONG TRIAL, THE RECORD OF WHICH COVERS 860 PAGES.  IT
IS SUFFICIENT TO SAY THAT THE GOVERNMENT PROVED ITS CASE THROUGH 10
WITNESSES, THE LAST OF WHOM WAS JONAS.  HE WAS PRESIDENT OF A LARGE
NORTH CAROLINA MIRROR MANUFACTURING COMPANY AND HAD A REPUTATION FOR
INDEPENDENCE IN THE INDUSTRY.  ALTHOUGH NEITHER HE NOR HIS CORPORATION
WAS INDICTED, THE LATTER WAS MADE A CO-CONSPIRATOR.  THE EVIDENCE
INDICATES THAT THE CONSPIRACY WAS CONSUMATED AT TWO MEETINGS HELD ON
SUCCESSIVE DAYS DURING THE WEEK OF THE ANNUAL MEETING OF THE MIRROR
MANUFACTURERS ASSOCIATION IN 1954 AT ASHEVILLE, NORTH CAROLINA.  JONAS,
NOT BEING A MEMBER OF THE ASSOCIATION, DID NOT ATTEND THE CONVENTION. 
TALK AT THE CONVENTION REGARDING PRICES CULMINATED IN TELEPHONE CALLS
BY SEVERAL REPRESENTATIVES OF MIRROR MANUFACTURERS TO JONAS CONCERNING
HIS ATTITUDE ON RAISING PRICES.  ON THE DAY FOLLOWING THESE CALLS JONAS
AND THREE OF THE PARTICIPANTS IN THE CONSPIRACY MET AT AN INN AWAY FROM
THE CONVENTION HEADQUARTERS AND DISCUSSED "PRICES."  WITHIN THREE DAYS
THEREAFTER EACH OF THE MANUFACTURERS ANNOUNCED AN IDENTICAL PRICE
INCREASE, WHICH WAS APPROXIMATELY 10 PERCENT.  JONAS' TESTIMONY, OF
COURSE, WAS CONFINED TO THE TELEPHONE CALLS AND THE MEETING AT THE INN
WHERE THE UNDERSTANDING WAS FINALIZED.  THE GOVERNMENT ADMITS THAT HE
WAS AN "IMPORTANT" WITNESS.  HOWEVER, PROOF OF THE CONSPIRACY WAS
OVERWHELMING ASIDE FROM JONAS' TESTIMONY.  WHILE HE WAS THE ONLY
WITNESS WHO CHARACTERIZED THE OUTCOME OF THE MEETINGS AS AN "AGREEMENT"
ON PRICES, NO WITNESS NEGATIVED THIS CONCLUSION AND THE IDENTICAL PRICE
LISTS THAT FOLLOWED THE MEETING AT THE INN WERE LITTLE LESS THAN PROOF
POSITIVE. 

AFTER THE CONCLUSION OF JONAS' TESTIMONY, DEFENSE COUNSEL
INTERROGATED HIM AS TO THE NUMBER OF TIMES HE APPEARED AND THE SUBJECT
OF HIS TESTIMONY BEFORE THE GRAND JURY.  UPON ASCERTAINING THAT JONAS
HAD TESTIFIED THREE TIMES ON "THE SAME GENERAL SUBJECT MATTER," COUNSEL
MOVED FOR THE DELIVERY OF THE GRAND JURY MINUTES.  HE STATED THAT THE
PETITIONERS HAD "A RIGHT  ...  TO INSPECT THE GRAND JURY RECORD OF THE
TESTIMONY OF THIS WITNESS AFTER HE HAS COMPLETED HIS DIRECT
EXAMINATION" RELATING TO "THE SAME GENERAL SUBJECT MATTER" AS HIS TRIAL
TESTIMONY.  (FN2)  AS AUTHORITY FOR "THE AUTOMATIC DELIVERY OF GRAND
JURY TRANSCRIPTS" UNDER SUCH CIRCUMSTANCES COUNSEL CITED JENCKS V.
UNITED STATES, 353 U.S. 657 (1957).  AS PREVIOUSLY INDICATED, THE
MOTION WAS DENIED. 

IT APPEARS TO US CLEAR THAT JENCKS V. UNITED STATES, SUPRA, IS IN
NONWISE CONTROLLING HERE.  IT HAD NOTHING TO DO WITH GRAND JURY
PROCEEDINGS AND ITS LANGUAGE WAS NOT INTENDED TO ENCOMPASS GRAND JURY
MINUTES.  LIKEWISE, IT IS EQUALLY CLEAR THAT CONGRESS INTENDED TO
EXCLUDE THOSE MINUTES FROM THE OPERATION OF THE SO-CALLED JENCKS ACT,
71 STAT. 595, 18 U.S.C. (SUPP. V, 1958) SEC. 3500.  (FN3)

PETITIONERS CONCEDE, AS THEY MUST, THAT ANY DISCLOSURE OF GRAND JURY
MINUTES IS COVERED BY FED. RULES CRIM. PROC. 6(E) PROMULGATED BY THIS
COURT IN 1946 AFTER THE APPROVAL OF CONGRESS.  IN FACT, THE FEDERAL
TRIAL COURTS AS WELL AS THE COURTS OF APPEALS HAVE BEEN NEARLY
UNANIMOUS IN REGARDING DISCLOSURE AS COMMITTED TO THE DISCRETION OF THE
TRIAL JUDGE.  (FN4)  OUR CASES ANNOUNCE THE SAME PRINCIPLE, (FN5) AND
RULE 6(E) IS BUT DECLARATORY OF IT.  (FN6)  AS RECENTLY AS LAST TERM WE
CHARACTERIZED CASES WHERE GRAND JURY MINUTES ARE USED "TO IMPEACH A
WITNESS, TO REFRESH HIS RECOLLECTION, TO TEST HIS CREDIBILITY AND THE
LIKE" AS INSTANCES OF "PARTICULARIZED NEED WHERE THE SECRECY OF THE
PROCEEDINGS IS LIFTED DISCRETELY AND LIMITEDLY."  UNITED STATES V.
PROCTER & GAMBLE, 356 U.S. 677, 683 (1958). 

PETITIONERS ARGUE, HOWEVER, THAT THE TRIAL JUDGE'S DISCRETION UNDER
RULE 6(E) MUST BE EXERCISED IN ACCORDANCE WITH THE RATIONALE OF JENCKS;
NAMELY, UPON A SHOWING ON CROSS-EXAMINATION THAT A TRIAL WITNESS
TESTIFIED BEFORE THE GRAND JURY - AND NOTHING MORE - THE DEFENSE HAS A
"RIGHT" TO THE DELIVERY TO IT OF THE WITNESS' GRAND JURY TESTIMONY. 

THIS CONCLUSION, HOWEVER, RUNS COUNTER TO "A LONG-ESTABLISHED POLICY"
OF SECRECY, UNITED STATES V. PROCTER & GAMBLE, SUPRA, AT 681, OLDER
THAN OUR NATION ITSELF.  THE REASONS WHEN VIEWED IN THE LIGHT OF THE
HISTORY AND MODUS OPERANDI OF THE GRAND JURY.  ITS ESTABLISHMENT IN THE
CONSTITUTION "AS THE SOLE METHOD FOR PREFERRING CHARGES IN SERIOUS
CRIMINAL CASES" INDEED "SHOWS THE HIGH PLACE IT (HOLDS) AS AN
INSTRUMENT OF JUSTICE."  COSTELLO V. UNITED STATES, 350 U.S. 359, 362
(1956).  EVER SINCE THIS ACTION BY THE FATHERS, THE AMERICAN GRAND
JURY, LIKE THAT OF ENGLAND, "HAS CONVENED AS A BODY OF LAYMEN, FREE
FROM TECHNICAL RULES, ACTING IN SECRET, PLEDGED TO INDICT NO ONE
BECAUSE OF PREJUDICE AND TO FREE NO ONE BECAUSE OF SPECIAL FAVOR." 
IBID.  INDEED, INDICTMENTS MAY BE RETURNED ON HEARSAY, OR FOR THAT
MATTER, EVEN ON THE KNOWLEDGE OF THE GRAND JURORS THEMSELVES.  ID., AT
362, 363.  TO MAKE PUBLIC ANY PART OF ITS PROCEEDINGS WOULD INEVITABLY
DETRACT FROM ITS EFFICACY.  GRAND JURORS WOULD NOT ACT WITH THAT
INDEPENDENCE REQUIRED OF AN ACCUSATORY AND INQUISITORIAL BODY. 
MOREOVER, NOT ONLY WOULD THE PARTICIPATION OF THE JURORS BE CURTAILED,
BUT TESTIMONY WOULD BE PARSIMONIOUS IF EACH WITNESS KNEW THAT HIS
TESTIMONY WOULD SOON BE IN THE HANDS OF THE ACCUSED.  ESPECIALLY IS
THIS TRUE IN ANTITRUST PROCEEDINGS WHERE FEAR OF BUSINESS REPRISAL
MIGHT HAUNT BOTH THE GRAND JUROR AND THE WITNESS.  AND THIS "GO SLOW
SIGN WOULD CONTINUE AS REALISTICALLY AT THE TIME OF TRIAL AS
THERETOFORE. 

IT DOES NOT FOLLOW, HOWEVER, THAT GRAND JURY MINUTES SHOULD NEVER BE
MADE AVAILABLE TO THE DEFENSE.  THIS COURT HAS LONG HELD THAT THERE ARE
OCCASIONS, SEE UNITED STATES V. PROCTER & GAMBLE, SUPRA, AT 683, WHEN
THE TRIAL JUDGE MAY IN THE EXERCISE OF HIS DISCRETION ORDER THE MINUTES
OF A GRAND JURY WITNESS PRODUCED FOR USE ON HIS CROSS-EXAMINATION AT
TRIAL.  CERTAINLY "DISCLOSURE IS WHOLLY PROPER WHERE THE ENDS OF
JUSTICE REQUIRE IT."  UNITED STATES V. SOCONY-VACUUM OIL CO., SUPRA, AT
234. 

THE BURDEN, HOWEVER, IS ON THE DEFENSE TO SHOW THAT "A PARTICULARIZED
NEED" EXISTS FOR THE MINUTES WHICH OUTWEIGHS THE POLICY OF SECRECY.  WE
HAVE NO SUCH SHOWING HERE.  AS WE READ THE RECORD THE PETITIONERS
FAILED TO SHOW ANY NEED WHATEVER FOR THE TESTIMONY OF THE WITNESS
JONAS.  THEY CONTENDED ONLY THAT THEY HAD A "RIGHT" TO THE TRANSCRIPT
BECAUSE IT DEALT WITH SUBJECT MATTER GENERALLY COVERED AT THE TRIAL. 
PETITIONERS INDICATE THAT THE TRIAL JUDGE REQUIRED A SHOWING OF
CONTRADICTION BETWEEN JONAS' TRIAL AND GRAND JURY TESTIMONY.  SUCH A
PRELIMINARY SHOWING WOULD NOT, OF COURSE, BE NECESSARY.  WHILE IN A
COLLOQUY WITH COUNSEL THE JUDGE DID REFER TO SUCH A REQUIREMENT, WE
READ HIS DENIAL AS BEING BASED ON THE BREADTH OF PETITIONERS' CLAIM. 
PETITIONERS ALSO CLAIM ERROR BECAUSE THE TRIAL JUDGE FAILED TO EXAMINE
THE TRANSCRIPT HIMSELF FOR ANY INCONSISTENCIES.  BUT WE NEED NOT
CONSIDER THAT PROBLEM BECAUSE PETITIONERS MADE NO SUCH REQUEST OF THE
TRIAL JUDGE.  THE COURT OF APPEALS APPARENTLY WAS OF THE VIEW THAT EVEN
IF THE TRIAL JUDGE HAD BEEN REQUESTED TO EXAMINE THE TRANSCRIPT HE
WOULD NOT HAVE BEEN ABSOLUTELY REQUIRED TO DO SO.  IT IS CONTENDED HERE
THAT THE COURT OF APPEALS FOR THE SECOND CIRCUIT HAS REACHED A CONTRARY
CONCLUSION.  UNITED STATES V. SPANGELET, 258 F.2D 338.  BE THAT AS IT
MAY, RESOLUTION OF THAT QUESTION MUST AWAIT A CASE WHERE THE ISSUE IS
PRESENTED BY THE RECORD.  THE SHORT OF IT IS THAT IN THE PRESENT CASE
THE PETITIONERS DID NOT INVOKE THE DISCRETION OF THE TRIAL JUDGE, BUT
ASSERTED A SUPPOSED ABSOLUTE RIGHT, A RIGHT WHICH WE HOLD THEY DID NOT
HAVE.  THE JUDGMENT IS THEREFORE AFFIRMED. 

FN1  "RULE 6.  THE GRAND JURY. 

     *         *         *         *         * 

"(E)  SECRECY OF PROCEEDINGS AND DISCLOSURE.  DISCLOSURE OF MATTERS
OCCURRING BEFORE THE GRAND JURY OTHER THAN ITS DELIBERATIONS AND THE
VOTE OF ANY JUROR MAY BE MADE TO THE ATTORNEYS FOR THE GOVERNMENT FOR
USE IN THE PERFORMANCE OF THEIR DUTIES.  OTHERWISE A JUROR, ATTORNEY,
INTERPRETER OR STENOGRAPHER MAY DISCLOSE MATTERS OCCURRING BEFORE THE
GRAND JURY ONLY WHEN SO DIRECTED BY THE COURT PRELIMINARILY TO OR IN
CONNECTION WITH A JUDICIAL PROCEEDING OR WHEN PERMITTED BY THE COURT AT
THE REQUEST OF THE DEFENDANT UPON A SHOWING THAT GROUNDS MAY EXIST FOR
A MOTION TO DISMISS THE INDICTMENT BECAUSE OF MATTERS OCCURRING BEFORE
THE GRAND JURY.  NO OBLIGATION OF SECRECY MAY BE IMPOSED UPON ANY
PERSON EXCEPT IN ACCORDANCE WITH THIS RULE.  THE COURT MAY DIRECT THAT
AN INDICTMENT SHALL BE KEPT SECRET UNTIL THE DEFENDANT IS IN CUSTODY OR
HAS GIVEN BAIL, AND IN THAT EVENT THE CLERK SHALL SEAL THE INDICTMENT
AND NO PERSON SHALL DISCLOSE THE FINDING OF THE INDICTMENT EXCEPT WHEN
NECESSARY FOR THE ISSUANCE AND EXECUTION OF A WARRANT OR SUMMONS." 

FN2  THE FACT THAT THE TRIAL TESTIMONY AND THAT BEFORE THE GRAND JURY
INCLUDED THE SAME "SUBJECTS" OR RELATED TO "THE SAME GENERAL SUBJECT
MATTER" IS NOT CONTESTED. 

FN3  SEE S. REP. NO. 981, 85TH CONG., 1ST SESS.; 103 CONG. REC.
15933. 

FN4  E.G., UNITED STATES V. SPANGELET, 258 F.2D 338; UNITED STATES V.
ANGELET, 255 F.2D 383; UNITED STATES V. ROSE, 215 F.2D 617, 629;
SCHMIDT V. UNITED STATES, 115 F.2D 394; UNITED STATES V. AMERICAN
MEDICAL ASSN., 26 F. SUPP. 429. 

FN5  UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150 (1940). 
AND SEE UNITED STATES V. PROCTER GAMBLE CO., 356 U.S. 677 (1958);
UNITED STATES V. JOHNSON, 319 U.S. 503, 513 (1943). 

FN6  SEE NOTES FOR THE ADVISORY COMMITTEE ON RULES, FOLLOWING RULE 6,
FED. RULES CRIM. PROC. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

IN THE WORDS OF THE COURT OF APPEALS, JONAS WAS THE GOVERNMENT'S
"PRINCIPAL PROSECUTING WITNESS."  (FN1)  HE WAS PRESIDENT OF LENOIR
MIRROR COMPANY WHICH COMPANY WAS A PARTICIPANT IN THE ALLEGED PRICE
FIXING CONSPIRACY, BUT WAS NOT INDICTED.  AFTER JONAS TESTIFIED ON
DIRECT EXAMINATION DEFENSE COUNSEL ASKED FOR THE PRODUCTION OF HIS
RELEVANT GRAND JURY TESTIMONY.  THE TRIAL JUDGE IMMEDIATELY MADE CLEAR
HIS INTENTION NOT TO GRANT THE MOTION:  "UNLESS YOU CAN SHOW SOME SOUND
BASIS THAT CONTRADICTS BETWEEN WHAT HAPPENED IN THE GRAND JURY ROOM AND
HIS TESTIMONY BEFORE THE GRAND JURY AND HIS TESTIMONY IN THIS TRIAL, I
AM NOT GOING TO REQUIRE THE PRODUCTION OF THE GRAND JURY RECORDS.  IT
WOULD BE EASY FOR ANY ATTORNEY TO GET ACCESS TO THE RECORDS OF THE
GRAND JURY BY JUST SUCH A MOTION AS YOU ARE MAKING HERE."  DEFENSE
COUNSEL PROTESTED, "WE ARE NOT ATTEMPTING THAT.  WE WANT JUST A
TRANSCRIPT OF HIS TESTIMONY BEFORE THE GRAND JURY REGARDING THE
SUBJECTS TO WHICH HE HAS TESTIFIED ON DIRECT EXAMINATION."  THIS
REQUEST THUS ENCOMPASSED ALL OF JONAS' GRAND JURY TESTIMONY ONLY IF ALL
OF THAT TESTIMONY COVERED THE SUBJECT MATTER OF JONAS' TRIAL
TESTIMONY.  THE COURT REPLIED, "YOU HAVE STATED WHAT YOU WANT TO ASK
HIM AND I AM DENYING YOUR RIGHT TO DO IT."  PLAINLY DEFENSE COUNSEL
WERE NOT ASKING TO SEE THE MINUTES OF THE ENTIRE GRAND JURY
PROCEEDINGS, NOR EVEN OF ALL OF JONAS' TESTIMONY BEFORE THE GRAND JURY
UNLESS ALL OF IT WAS ON THE SAME SUBJECT MATTER AT HIS TRIAL
TESTIMONY.  THEIR MOTION WAS CAREFULLY LIMITED TO A REQUEST FOR SO MUCH
OF JONAS' GRAND JURY TESTIMONY AS "COVERED THE SUBSTANCE OF HIS
TESTIMONY ON DIRECT EXAMINATION."  THIS REQUEST THAT SECRECY BE "LIFTED
DISCRETELY AND LIMITEDLY," UNITED STATES V. PROCTER & GAMBLE, 356 U.S.
677, 683, NECESSARILY IMPLIED A REQUEST THAT THE TRIAL JUDGE INSPECT
THE GRAND JURY MINUTES AND TURN OVER TO THE DEFENSE ONLY THOSE PARTS
DEALING WITH JONAS' TESTIMONY ON THE SAME SUBJECT MATTER AS HIS TRIAL
TESTIMONY.  IN THIS POSTURE, THEN, THE QUESTION FOR OUR DECISION IS THE
NARROW ONE WHETHER THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE REQUEST
FOR INSPECTION OF THE GRAND JURY TESTIMONY OF A KEY GOVERNMENT WITNESS
WHICH COVERED THE SUBJECT MATTER OF THAT WITNESS' TRIAL TESTIMONY. 
(FN2)  I DISSENT FROM THE COURT'S AFFIRMANCE OF THE TRIAL JUDGE'S
RULING DENYING THIS CAREFULLY CIRCUMSCRIBED REQUEST.    GRAND JURY
SECRECY IS, OF COURSE, NOT AN END IN ITSELF.  GRAND JURY SECRECY IS
MAINTAINED TO SERVE PARTICULAR ENDS.  BUT WHEN SECRECY WILL NOT SERVE
THOSE ENDS OR WHEN THE ADVANTAGES GAINED BY SECRECY ARE OUTWEIGHED BY A
COUNTERVAILING INTEREST IN DISCLOSURE, SECRECY MAY AND SHOULD BE
LIFTED, FOR TO DO SO IN SUCH A CIRCUMSTANCE WOULD FURTHER THE FAIR
ADMINISTRATION OF CRIMINAL JUSTICE.  SEE MCNABB V. UNITED STATES, 318
U.S. 332.  IT IS TRUE THAT SECRECY IS NOT TO BE LIFTED WITHOUT A
SHOWING OF GOOD REASON, BUT IT IS TOO LATE IN THE DAY TO SAY, AS THE
COURT AS A PRACTICAL MATTER DOES HERE, THAT THE GOVERNMENT MAY INSIST
UPON GRAND JURY SECRECY EVEN WHEN THE POSSIBLE PREJUDICE TO THE ACCUSED
IN A CRIMINAL CASE IS CRYSTAL CLEAR AND NONE OF THE REASONS JUSTIFYING
SECRECY IS PRESENT.  "AFTER THE GRAND JURY'S FUNCTIONS ARE ENDED,
DISCLOSURE IS WHOLLY PROPER WHERE THE ENDS OF JUSTICE REQUIRE IT." 
UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 234.  THUS GRAND
JURY MINUTES HAVE BEEN MADE AVAILABLE TO A DEFENDANT ACCUSED OF
COMMITTING PERJURY BEFORE THE GRAND JURY SO THAT HE COULD ADEQUATELY
PREPARE HIS DEFENSE, UNITED STATES V. REMINGTON, 191 F.2D 246; UNITED
STATES V. ROSE, 215 F.2D 617, AND TO A DEFENDANT WHO CAN SHOW AN
INCONSISTENCY BETWEEN THE TRIAL TESTIMONY AND GRAND JURY TESTIMONY OF A
GOVERNMENT WITNESS, UNITED STATES, 175 F.2D 960; HERZOG V. UNITED
STATES, 226 F.2D 561; UNITED STATES V. H.J.K. THEATRE CORP., 236 F.2D
502.  ON OCCASION THE GOVERNMENT ITSELF HAS RECOGNIZED THE FAIRNESS OF
PERMITTING THE DEFENSE ACCESS TO THE GRAND JURY TESTIMONY OF GOVERNMENT
WITNESSES EVEN THOUGH IT CONSIDERED THAT IT WAS NOT BOUND TO DO SO,
UNITED STATES V. GRUNEWALD, 162 F. SUPP. 621.  THIS COURT HAS IMPLIED
THAT GRAND JURY MINUTES WOULD BE DISCOVERABLE BY A DEFENDANT IN A CIVIL
ANTITRUST SUIT INSTITUTED BY THE GOVERNMENT ON A SHOWING OF
"PARTICULARIZED NEED," UNITED STATES V. PROCTER & GAMBLE, 356 U.S. 677,
683.  (FN3)  NOR CAN WE OVERLOOK THAT THE GOVERNMENT USES GRAND JURY
MINUTES TO FURTHER ITS OWN INTERESTS IN LITIGATION.  IT IS APPARENTLY
STANDARD PRACTICE FOR GOVERNMENT ATTORNEYS TO USE GRAND JURY MINUTES IN
PREPARING A CASE FOR TRIAL, SEE UNITED STATES V. PROCTER & GAMBLE, 356
U.S. 677, 678, IN REFRESHING THE RECOLLECTION OF GOVERNMENT WITNESSES
AT TRIAL, SEE UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150,
233, AND, WHEN THE NEED ARISES, IN IMPEACHING WITNESSES AT TRIAL, SEE
UNITED STATES V. COTTER, 60 F.2D 689.  OF COURSE, WHEN THE GOVERNMENT
USES GRAND JURY MINUTES AT TRIAL THE DEFENSE IS ORDINARILY ENTITLED TO
INSPECT THE RELEVANT TESTIMONY IN THOSE MINUTES.  UNITED STATES V.
SOCONY-VACUUM OIL CO., 310 U.S. 150, 233; UNITED STATES V. COTTER, 60
F.2D 689.  INDEED, RULE 6(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
ITSELF RECOGNIZES THAT GRAND JURY TESTIMONY IS DISCOVERABLE UNDER
APPROPRIATE CIRCUMSTANCES.  (FN4) 

THE COURT APPARENTLY AGREES WITH THE CONCLUSION COMPELLED BY THESE
PRECEDENTS, FOR ITS OPINION STATES THAT GRAND JURY MINUTES ARE
DISCOVERABLE WHEN "'A PARTICULARIZED NEED' EXISTS FOR THE MINUTES WHICH
OUTWEIGHS THE POLICY OF SECRECY."  BUT THE COURT PAYS ONLY LIP SERVICE
TO THE PRINCIPLE IN VIEW OF THE RESULT IN THIS CASE.  IT IS CLEAR
BEYOND QUESTION, I THINK, THAT THE APPLICATION OF THAT PRINCIPLE TO
THIS CASE REQUIRES A HOLDING THAT JONAS' GRAND JURY TESTIMONY IS
DISCOVERABLE TO THE LIMITED EXTENT SOUGHT.  SINCE THERE ARE NO VALID
CONSIDERATIONS WHICH MILITATE IN FAVOR OF GRAND JURY SECRECY IN THIS
CASE, SIMPLY JUSTICE REQUIRES THAT THE PETITIONERS BE GIVEN ACCESS TO
THE RELEVANT PORTIONS OF JONAS' GRAND JURY TESTIMONY SO THAT THEY HAVE
A FAIR OPPORTUNITY TO REFUTE THE GOVERNMENT'S CASE. 

ESSENTIALLY FOUR REASONS HAVE BEEN ADVANCED AS JUSTIFICATION FOR
GRAND JURY SECRECY.  (FN5)  (1) TO PREVENT THE ACCUSED FROM ESCAPING
BEFORE HE IS INDICTED AND ARRESTED OR FROM TAMPERING WITH THE WITNESSES
AGAINST HIM.  (2) TO PREVENT DISCLOSURE OF DEROGATORY INFORMATION
PRESENTED TO THE GRAND JURY AGAINST AN ACCUSED WHO HAS NOT BEEN
INDICTED.  (3) TO ENCOURAGE COMPLAINANTS AND WITNESSES TO COME BEFORE
THE GRAND JURY AND SPEAK FREELY WITHOUT FEAR THAT THEIR TESTIMONY WILL
BE MADE PUBLIC THEREBY SUBJECTING THEM TO POSSIBLE DISCOMFORT OR
RETALIATION.  (4) TO ENCOURAGE THE GRAND JURORS TO ENGAGE IN
UNINHIBITED INVESTIGATION AND DELIBERATION BY BARRING DISCLOSURE OF
THEIR VOTES AND COMMENTS DURING THE PROCEEDINGS. 

NONE OF THESE REASONS DICTATES THAT JONAS' GRAND JURY TESTIMONY, TO
THE LIMITED EXTENT IT IS SOUGHT, SHOULD BE KEPT SECRET.  THE COURT,
WHILE MAKING OBEISANCE TO "A LONG-ESTABLISHED POLICY" OF SECRECY, MAKES
NO SHOWING WHATEVER HOW DENIAL OF JONAS' GRAND JURY TESTIMONY SERVES
ANY OF THE PURPOSES JUSTIFYING SECRECY.  CERTAINLY DISCLOSURE AT THIS
STAGE OF THE PROCEEDINGS WOULD NOT ENABLE THE DEFENDANTS TO ESCAPE FROM
CUSTODY OR TO TAMPER WITH THE WITNESS WHO HAS ALREADY TESTIFIED AGAINST
THEM ON DIRECT EXAMINATION.  CERTAINLY, ALSO, PROTECTION OF AN INNOCENT
ACCUSED WHO HAS NOT BEEN INDICTED HAS NO BEARING ON THIS CASE. 
DISCOVERY HAS BEEN SOUGHT ONLY OF JONAS' GRAND JURY TESTIMONY ON THE
SAME SUBJECT MATTER AS HIS TESTIMONY AT TRIAL.  THIS TESTIMONY WILL
HAVE CONDEMNED SOMEONE TO WHOM HE DID NOT REFER AT TRIAL ONLY IF HE HAS
CONCEALED INFORMATION AT THE TRIAL, AND THIS CREATES THE VERY SITUATION
IN WHICH IT IS IMPERATIVE THAT THE DEFENSE HAVE ACCESS TO THE GRAND
JURY TESTIMONY IF WE ARE TO ADHERE TO THE STANDARDS WE HAVE SET FOR
OURSELVES TO ASSURE THE FAIR ADMINISTRATION OF CRIMINAL JUSTICE IN THE
FEDERAL COURTS.  SIMILARLY, DISCLOSURE OF JONAS' RELEVANT GRAND JURY
TESTIMONY COULD NOT PRODUCE THE APPREHENDED RESULTS OF RETALIATION OR
DISCOMFORT WHICH MIGHT INDUCE A RELUCTANCE IN OTHERS TO TESTIFY BEFORE
GRAND JURIES.  JONAS HAS ALREADY TAKEN THE STAND AND TESTIFIED FREELY
IN OPEN COURT AGAINST THE DEFENDANTS.  HIS TESTIMONY HAS BEEN EXTREMELY
DAMAGING.  DISCLOSURE OF HIS TESTIMONY BEFORE THE GRAND JURY IS HARDLY
LIKELY TO RESULT IN ANY EMBARRASSMENT THAT HIS TRIAL TESTIMONY HAS NOT
ALREADY PRODUCED.  "IF HE TELLS THE TRUTH, AND THE TRUTH IS THE SAME AS
HE TESTIFIED BEFORE THE GRAND JURY, THE DISCLOSURE OF THE FORMER
TESTIMONY CANNOT POSSIBLY BRING TO HIM ANY HARM  ...  WHICH HIS
TESTIMONY ON THE OPEN TRIAL DOES NOT EQUALLY TEND TO PRODUCT."  8
WIGMORE, EVIDENCE (3D ED. 1940), SEC. 2362, AT 725.  WITNESSES BEFORE A
GRAND JURY NECESSARILY KNOW THAT ONCE CALLED BY THE GOVERNMENT TO
TESTIFY AT TRIAL THEY CANNOT REMAIN SECRET INFORMANTS QUITE APART FROM
WHETHER THEIR GRAND JURY TESTIMONY IS DISCOVERABLE.  FINALLY, THE
DEFENSE SEEKS NOTHING WHICH WOULD DISCLOSE THE VOTES OR OPINIONS OF ANY
OF THE GRAND JURORS INVOLVED IN THESE PROCEEDINGS.  ALL THAT IS SOUGHT
IS THE RELEVANT TESTIMONY OF JONAS.  IF THERE ARE QUESTIONS BY GRAND
JURORS INTERTWINED WITH JONAS' TESTIMONY DISCLOSURE OF WHICH WOULD
INDICATE THE JURORS' OPINIONS OR BE EMBARRASSING TO THEM, THE NAMES OF
THE GRAND JURORS ASKING THE QUESTIONS CAN BE EXCISED.  CF. UNITED
STATES V. GRUNEWALD, 162 F. SUPP. 621. 

PLAINLY, THEN, NO REASON JUSTIFYING SECRECY OF JONAS' RELEVANT GRAND
JURY TESTIMONY APPEARS.  THE COURT'S INSISTENCE ON SECRECY EXALTS THE
PRINCIPLE OF SECRECY FOR SECRECY'S SAKE IN THE FACE OF OBVIOUS POSSIBLE
PREJUDICE TO THE PETITIONERS' DEFENSE AGAINST JONAS' SERIOUSLY DAMAGING
TESTIMONY ON THE TRIAL.  SURELY "JUSTICE REQUIRES NO LESS," JENCKS V.
UNITED STATES, 353 U.S. 657, 669, THAN THAT THE DEFENSE BE PERMITTED
EVERY REASONABLE OPPORTUNITY TO IMPEACH A GOVERNMENT WITNESS, AND THAT
A CRIMINAL CONVICTION NOT BE BASED ON THE TESTIMONY OF UNTRUTHFUL OR
INACCURATE WITNESSES.  THE INTEREST OF THE UNITED STATES IN A CRIMINAL
PROSECUTION, IT MUST BE EMPHASIZED, "IS NOT THAT IT SHALL WIN A CASE,
BUT THAT JUSTICE SHALL BE DONE."  BERGER V. UNITED STATES, 295 U.S. 78,
88. 

OBVIOUSLY THE IMPEACHMENT OF THE GOVERNMENT'S KEY WITNESS ON THE
BASIS OF PRIOR INCONSISTENT OR CONTRADICTORY STATEMENTS MADE UNDER OATH
BEFORE A GRAND JURY WOULD HAVE AN IMPORTANT EFFECT ON A TRIAL.  THUS IT
HAS LONG BEEN HELD THAT A DEFENDANT MAY HAVE ACCESS TO INCONSISTENT
GRAND JURY TESTIMONY FOR USE IN CROSS-EXAMINATION IF HE CAN SOMEHOW
SHOW THAT AN INCONSISTENCY BETWEEN THE TRIAL AND GRAND JURY TESTIMONY
EXISTS.  UNITED STATES V. ALPER, 156 F.2D 222; BURTON V. UNITED STATES,
175 F.2D 960; HERZOG V. UNITED STATES, 226 F.2D 561; UNITED STATES V.
H.J.K. THEATRE CORP., 236 F.2D 502.  BUT IN AN ANALOGOUS SITUATION WE
HAVE POINTED OUT THE FOLLY OF REQUIRING THE DEFENSE TO SHOW
INCONSISTENCY BETWEEN THE WITNESS' TRIAL TESTIMONY AND HIS PREVIOUS
STATEMENTS ON THE SAME SUBJECT MATTER BEFORE IT CAN OBTAIN ACCESS TO
THOSE VERY STATEMENTS.  IN JENCKS V. UNITED STATES, 353 U.S. 657, WE
SAID THAT IT OFFERS NO PROTECTION TO PERMIT A DEFENDANT TO OBTAIN
INCONSISTENT STATEMENTS TO IMPEACH A WITNESS UNLESS HE MAY INSPECT
STATEMENTS TO DETERMINE IF IN FACT THEY ARE INCONSISTENT WITH THE TRIAL
TESTIMONY.  WE SAID IN JENCKS: 

"REQUIRING THE ACCUSED FIRST TO SHOW CONFLICT BETWEEN THE REPORTS AND
THE TESTIMONY IS ACTUALLY TO DENY THE ACCUSED EVIDENCE RELEVANT AND
MATERIAL TO HIS DEFENSE.  THE OCCASION FOR DETERMINING A CONFLICT
CANNOT ARISE UNTIL AFTER THE WITNESS HAS TESTIFIED, AND UNLESS HE
ADMITS CONFLICT, AS IN GORDON, (GORDON V. UNITED STATES, 344 U.S. 414)
THE ACCUSED IS HELPLESS TO KNOW OR DISCOVER CONFLICT WITHOUT INSPECTING
THE REPORTS.  A REQUIREMENT OF A SHOWING OF CONFLICT WOULD BE CLEARLY
INCOMPATIBLE WITH OUT STANDARDS FOR THE ADMINISTRATION OF CRIMINAL
JUSTICE IN THE FEDERAL COURTS AND MUST THEREFORE BE REJECTED."  353
U.S., AT 667-668. 

THE CONSIDERATIONS WHICH MOVED US TO LAY DOWN THIS PRINCIPLE AS TO
PRIOR STATEMENTS OF GOVERNMENT WITNESSES MADE TO GOVERNMENT AGENTS
OBVIOUSLY APPLY WITH EQUAL FORCE TO THE GRAND JURY TESTIMONY OF A
GOVERNMENT WITNESS.  FOR THE DEFENSE WILL RARELY BE ABLE TO LAY A
FOUNDATION FOR OBTAINING GRAND JURY TESTIMONY BY SHOWING IT IS
INCONSISTENT WITH TRIAL TESTIMONY UNLESS IT CAN INSPECT THE GRAND JURY
TESTIMONY, AND, APPARENTLY IN RECOGNITION OF THIS FACT, THE COURT HOLDS
TODAY THAT A PRELIMINARY SHOWING OF INCONSISTENCY BY THE DEFENSE WOULD
NOT BE NECESSARY IN ORDER FOR IT TO OBTAIN ACCESS TO RELEVANT GRAND
JURY MINUTES.  IT IS SUGGESTED BY THE GOVERNMENT, HOWEVER, THAT RATHER
THAN PERMIT THE DEFENSE TO INSPECT THE RELEVANT GRAND JURY MINUTES FOR
POSSIBLE USE ON CROSS-EXAMINATION, THE TRIAL JUDGE SHOULD INSPECT THEM
AND TURN OVER TO THE DEFENSE ONLY THOSE PORTIONS, IF ANY, THAT THE
JUDGE CONSIDERS WOULD BE USEFUL FOR PURPOSES OF IMPEACHMENT.  THIS
PROCEDURE HAS SOMETIMES BEEN UTILIZED IN THE PAST AS A WAY TO LIMIT
DISCOVERY OF GRAND JURY MINUTES.  SEE UNITED STATES V. ALPER, 156 F.2D
222; UNITED STATES V. CONSOLIDATED LAUNDRIES, 159 F. SUPP. 860.  BUT WE
POINTED OUT IN JENCKS THE SERIOUS DISADVANTAGES OF SUCH A PROCEDURE AND
EXPRESSLY DISAPPROVED OF IT.  WE SAID: 

"FLAT CONTRADICTION BETWEEN THE WITNESS' TESTIMONY AND THE VERSION OF
THE EVENTS GIVEN IN HIS REPORTS IS NOT THE ONLY TEST OF INCONSISTENCY. 
THE OMISSION FROM THE REPORTS OF FACTS RELATED AT THE TRIAL, OR A
CONTRAST IN EMPHASIS UPON THE SAME FACTS, EVEN A DIFFERENT ORDER OF
TREATMENT, ARE ALSO RELEVANT TO THE CROSS-EXAMINING PROCESS OF TESTING
THE CREDIBILITY OF A WITNESS' TRIAL TESTIMONY. 

     *  *         *         *         * 

"  ...  WE HOLD  ...  THAT THE PETITIONER IS ENTITLED TO INSPECT THE
REPORTS TO DECIDE WHETHER TO USE THEM IN HIS DEFENSE.  BECAUSE ONLY THE
DEFENSE IS ADEQUATELY EQUIPPED TO DETERMINE THE EFFECTIVE USE FOR
PURPOSE OF DISCREDITING THE GOVERNMENT'S WITNESS AND THEREBY FURTHERING
THE ACCUSED'S DEFENSE, THE DEFENSE MUST INITIALLY BE ENTITLED TO SEE
THEM TO DETERMINE WHAT USE MAY BE MADE OF THEM.  JUSTICE REQUIRES NO
LESS."  353 U.S., AT 667-669. 

FROM JONAS' OWN ADMISSION IT APPEARS THAT HIS GRAND JURY TESTIMONY
COVERED THE SUBJECT MATTER OF HIS TRIAL TESTIMONY.  THE REASONS FOR
PERMITTING THE DEFENSE COUNSEL RATHER THAN THE TRIAL JUDGE TO DECIDE
WHAT PARTS OF THAT TESTIMONY CAN EFFECTIVELY BE USED ON CROSS
EXAMINATION ARE CERTAINLY NOT LESS COMPELLING THAN IN REGARD TO THE FBI
REPORTS INVOLVED IN JENCKS.  FOR GRAND JURY TESTIMONY IS OFTEN LENGTHY
AND INVOLVED, AND IT WILL BE EXTREMELY DIFFICULT FOR EVEN THE MOST ABLE
AND EXPERIENCED TRIAL JUDGE UNDER THE PRESSURES OF CONDUCTING A TRIAL
TO PICK OUT ALL OF THE GRAND JURY TESTIMONY THAT WOULD BE USEFUL IN
IMPEACHING A WITNESS.  SEE UNITED STATES V. SPANGELET, 258 F.2D 338. 
HIS TASK SHOULD BE COMPLETED WHEN HE HAS SATISFIED HIMSELF WHAT PART OF
THE GRAND JURY TESTIMONY COVERS THE SUBJECT MATTER OF THE WITNESS'
TESTIMONY ON THE TRIAL, AND WHEN HE HAS GIVEN THAT PART TO THE
DEFENSE.  THEN THE DEFENSE MAY UTILIZE THE GRAND JURY TESTIMONY FOR
IMPEACHMENT PURPOSES AS IT MAY DEEM ADVISABLE IN ITS BEST INTERESTS,
SUBJECT OF COURSE TO THE APPLICABLE RULES OF EVIDENCE. 

I WOULD REVERSE THE COURT OF APPEALS AND ORDER A NEW TRIAL FOR FAILURE
OF THE TRIAL JUDGE TO ORDER THE PRODUCTION OF JONAS' RELEVANT GRAND
JURY TESTIMONY. 

FN1  JONAS WAS THE ONLY WITNESS TO TESTIFY THAT THE DEFENDANTS HAD
ACTUALLY AGREED TO A UNIFORM PRICE INCREASE.  FURTHERMORE, HIS
TESTIMONY WAS NECESSARY TO REFUTE OTHER TESTIMONY THAT THE PRESIDENT OF
PETITIONER GALAX MIRROR CO., INC., HAD STATED THAT HE WOULD FOLLOW HIS
PRICING POLICY REGARDLESS OF WHAT THE OTHER MANUFACTURERS DID.  JONAS'
TESTIMONY WAS ALSO INSTRUMENTAL IN CONNECTING PETITIONER PITTSBURGH
PLATE GLASS CO. TO THE PRICE-FIXING AGREEMENT.    FN2  AS THE COURT
POINTS OUT, DISCOVERY OF GRAND JURY MINUTES IS NOT AFFECTED BY THE
JENCKS STATUTE, 18 U.S.C. (SUPP. V) SEC. 3500. 

FN3  UNITED STATES V. PROCTER & GAMBLE, UPON WHICH THE COURT RELIES,
ACTUALLY IS AUTHORITY FOR PERMITTING DISCOVERY IN THIS CASE.  THE COURT
IN THAT CASE RECOGNIZED THAT GRAND JURY MINUTES WERE DISCOVERABLE WHERE
THE NEED OUTWEIGHED THE ADVANTAGES OF SECRECY, BUT HELD THAT SUCH WAS
NOT THE CASE IN THE CIRCUMSTANCES BECAUSE, UNLIKE THIS CASE, PROCTER &
GAMBLE CONCERNED A DEMAND FOR A TRANSCRIPT OF THE ENTIRE GRAND JURY
PROCEEDINGS TO BE USED IN PRETRIAL PREPARATION OF A CIVIL SUIT.  THIS
CASE, OF COURSE, CONCERNS A DEMAND FOR DISCOVERY OF A PARTICULAR
WITNESS' RELEVANT TESTIMONY FOR USE ON CROSS-EXAMINATION AT TRIAL IN A
CRIMINAL PROSECUTION.  THE COURT SPECIFICALLY STATED IN PROCTER &
GAMBLE:  "WE DO NOT REACH IN THIS CASE PROBLEMS CONCERNING THE USE OF
THE GRAND JURY TRANSCRIPT AT THE TRIAL TO IMPEACH A WITNESS, TO REFRESH
HIS RECOLLECTION, TO TEST HIS CREDIBILITY AND THE LIKE.  THOSE ARE
CASES OF PARTICULARIZED NEED WHERE THE SECRECY OF THE PROCEEDINGS IS
LIFTED DISCRETELY AND LIMITEDLY."  356 U.S., AT 683. 

FN4  SEE UNITED STATES V. ALPER, 156 F.2D 222, 226; IN RE BULLOCK,
103 F. SUPP. 639. 

FN5  SEE UNITED STATES V. ROSE, 215 F.2D 617, 628-629; UNITED STATES
V. AMAZON INDUSTRIAL CHEMICAL CORP., 55 F.2D 254, 261, 8 WIGMORE,
EVIDENCE (3D ED. 1940), SEC. 2360. 
..END :











SOUTHWESTERN SUGAR & MOLASSES CO., INC. V. RIVER TERMINALS CORP. 360
U.S. 411 


NO. 155.  ARGUED MARCH 3, 1959.  - DECIDED JUNE 22, 1959.  - 253 F.2D
922, CAUSE REMANDED TO COURT OF APPEALS WITH INSTRUCTIONS. 


ON PETITIONER'S LIBEL AGAINST RESPONDENT, A COMMON CARRIER BY WATER
CERTIFICATED BY THE INTERSTATE COMMERCE COMMISSION, A FEDERAL DISTRICT
COURT HELD RESPONDENT LIABLE TO PETITIONER FOR DAMAGES FOR LOSS OF ITS
CARGO AND FOR EXPENSES INCURRED IN RAISING AND REPAIRING A BARGE
CHARTERED BY PETITIONER AND TOWED BY RESPONDENT FROM LOUISIANA TO
TEXAS, WHERE IT SANK AT DOCKSIDE.  ON APPEAL, RESPONDENT URGED THAT THE
DISTRICT COURT HAD COMMITTED FOUR ERRORS.  ALTHOUGH ALL HAD BEEN FULLY
ARGUED AND WERE RIPE FOR DECISION, THE COURT OF APPEALS DID NOT PASS ON
THREE OF RESPONDENT'S CLAIMS WHICH, IF SUSTAINED, WOULD HAVE DISPOSED
OF THE CASE; BUT IT REVERSED THE JUDGMENT AND REMANDED THE CASE TO THE
DISTRICT COURT WITH DIRECTIONS TO GIVE EFFECT TO AN EXCULPATORY CLAUSE
IN A TARIFF FILED BY RESPONDENT WITH THE INTERSTATE COMMERCE
COMMISSION, UNLESS PETITIONER SHOULD OBTAIN FROM THE COMMISSION WITH A
REASONABLE TIME A RULING THAT SUCH CLAUSE WAS INVALID.  HELD: 

1.  THE COURT OF APPEALS ERRED IN ORDERING WHAT WAS IN SUBSTANCE A
REFERRAL OF THE ISSUE OF THE VALIDITY OF THE EXCULPATORY CLAUSE TO THE
COMMISSION WITHOUT FIRST PASSING ON THE OTHER CLAIMS OF ERROR TENDERED
BY RESPONDENT.  PP. 414-415. 

2.  THE COURT OF APPEALS CORRECTLY RULED THAT THE EXCULPATORY CLAUSE
HERE AT ISSUE SHOULD NOT BE STRUCK DOWN AS A MATTER OF LAW AND THAT THE
PARTIES SHOULD BE AFFORDED A REASONABLE OPPORTUNITY TO OBTAIN THE VIEWS
OF THE COMMISSION, IF NECESSARY TO A DISPOSITION OF THE CASE.  BISSO V.
INLAND WATERWAYS CORP., 349 U.S. 85, DISTINGUISHED.  PP. 415-421. 

3.  THE CASE IS REMANDED TO THE COURT OF APPEALS WITH INSTRUCTIONS TO
PASS ON RESPONDENT'S FIRST THREE ASSIGNMENTS OF ERROR.  SHOULD THE
RESOLUTION OF THOSE ISSUES NOT DISPOSE OF THE CASE, THE COURT OF
APPEALS WILL REMAND THE CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO
HOLD IT IN ABEYANCE WHILE THE PARTIES SEEK THE COMMISSION'S VIEWS AS TO
FACTORS BEARING ON THE VALIDITY OF THE EXCULPATORY CLAUSE.  PP. 421
422. 

SOUTHWESTERN SUGAR & MOLASSES CO., INC., V. RIVER TERMINALS CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

ON SEPTEMBER 24, 1944, THE BARGE PETER B, CARRYING A CARGO OF
MOLASSES, SANK IN 30 FEET OF WATER AT DOCKSIDE IN TEXAS CITY, TEXAS. 
ALTHOUGH THE BARGE WAS EVENTUALLY RAISED, THE CARGO, ALLEGEDLY VALUED
AT SOME $26,000, WAS LARGELY OR TOTALLY LOST. 

PETITIONER, SOUTHWESTERN SUGAR & MOLASSES CO., CHARTERER OF THE BARGE
AND OWNER OF THE CARGO, FILED A LIBEL AGAINST RESPONDENT, RIVER
TERMINALS CORPORATION, A WATER CARRIER CERTIFICATED UNDER PART III OF
THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 901 ET SEQ., SEEKING
RECOVERY OF DAMAGES FOR THE LOSS OF CARGO AND FOR EXPENSES OCCASIONED
IN THE RAISING AND REPAIR OF THE BARGE, WHICH HAD BEEN TOWED BY
RESPONDENT FROM RESERVE, LOUISIANA, TO TEXAS CITY AND THERE BERTHED. 
THE DISTRICT COURT FIRST TRIED THE ISSUE OF LIABILITY, SEPARATING THE
QUESTION OF DAMAGES FOR SUBSEQUENT DETERMINATION, AND HELD THAT THE
BARGE HAD SUNK AND THE CARGO HAD BEEN LOST AS A RESULT OF RESPONDENT'S
NEGLIGENCE IN THE NAVIGATION OR MANAGEMENT OF THE TOW AND THAT
RESPONDENT WAS LIABLE FOR ALL DAMAGE TO THE CARGO AND FOR THE COST OF
RAISING AND REPAIRING THE BARGE.  (FN1)  153 F. SUPP. 923. 

RESPONDENT APPEALED FROM THE INTERLOCUTORY DECREE ADJUDGING
LIABILITY, 28 U.S.C. SEC.  1292(3), URGING THAT THE TRIAL COURT HAD
ERRED IN HOLDING (1) THAT PETITIONER HAD AN INTEREST IN THE PETER B
SUFFICIENT TO ENTITLE IT TO MAINTAIN A LIBEL FOR DAMAGE THERETO, (2)
THAT THE SINKING OF THE BARGE AND LOSS OF CARGO WERE DUE TO
RESPONDENT'S NEGLIGENCE, (3) THAT SEC. 3 OF THE HARTER ACT (FN2) DID
NOT ESTABLISH RESPONDENT'S FREEDOM FROM LIABILITY AS A MATTER OF LAW,
AND (4) THAT CERTAIN PROVISIONS IN TARIFFS FILED BY RESPONDENT WITH THE
INTERSTATE COMMERCE COMMISSION, WHICH PURPORTED TO RELEASE RESPONDENT
FROM LIABILITY FOR ITS NEGLIGENCE, AND WHICH WERE ASSUMED BY THE
DISTRICT COURT TO HAVE BEEN APPLICABLE TO THE TRANSPORTATION HERE
INVOLVED, WERE INVALID AS A MATTER OF LAW AND CONSTITUTED NO DEFENSE TO
THE LIBEL.  (FN3) 

THE COURT OF APPEALS DID NOT CONSIDER ANY OF THE FIRST THREE CLAIMS
OF ERROR, ALTHOUGH IF SUSTAINED THEY WOULD WHOLLY HAVE DISPOSED OF THE
CASE.  INSTEAD, THE COURT DIRECTED ITS ATTENTION TO RESPONDENT'S
CONTENTION THAT THE EXCULPATORY CLAUSE IN RESPONDENT'S TARIFF,
INCORPORATED BY REFERENCE IN THE BILL OF LADING ISSUED IN CONNECTION
WITH THE TRANSPORTATION, MUST BE GIVEN EFFECT.  THE COURT CONCLUDED
THAT BECAUSE THE CLAUSE WAS EMBODIED IN A TARIFF FILED WITH THE I.C.C.
IT COULD NOT IN THE FIRST INSTANCE DECLARE IT INVALID, BUT WAS BOUND TO
GIVE IT EFFECT UNLESS AND UNTIL THE COMMISSION, AFTER APPROPRIATE
INVESTIGATION, REACHED A CONTRARY CONCLUSION.  (FN4)  ACCORDINGLY, IT
REVERSED THE JUDGMENT OF THE DISTRICT COURT "IN ORDER TO AFFORD  ...
(PETITIONER) REASONABLE OPPORTUNITY TO SEEK ADMINISTRATIVE ACTION
BEFORE THE COMMISSION TO TEST THE VALIDITY OF THE CHALLENGED PROVISION,
OTHERWISE TO GIVE FULL EFFECT TO THE EXCULPATORY CLAUSE  ...  ."  253
F.2D 922. 

PETITIONER SOUGHT CERTIORARI, CONTENDING THAT THE REFUSAL OF THE
COURT OF APPEALS TO STRIKE DOWN THE EXCULPATORY CLAUSE AS A MATTER OF
LAW WAS CONTRARY TO THE DECISION OF THIS COURT IN BISSO V. INLAND
WATERWAYS CORPORATION, 349 U.S. 85, WHERE IT WAS HELD THAT A CLAUSE IN
A PRIVATE CONTRACT OF TOWAGE PURPORTING ALTOGETHER TO EXCULPATE THE TUG
FROM LIABILITY FOR ITS OWN NEGLIGENCE WAS VOID AS AGAINST PUBLIC
POLICY.  WE GRANTED THE WRIT.  358 U.S. 811. 

AT THE OUTSET, WE HOLD THAT THE COURT OF APPEALS ERRED IN ORDERING
WHAT WAS IN SUBSTANCE A REFERRAL OF THE ISSUE OF THE VALIDITY OF THE
EXCULPATORY CLAUSE TO THE COMMISSION WITHOUT FIRST PASSING ON THE OTHER
CLAIMS OF ERROR TENDERED BY RESPONDENT BELOW.  AS WE HAVE NOTED, THOSE
OTHER CLAIMS, IF ACCEPTED, WOULD HAVE REQUIRED A REVERSAL OF THE
JUDGMENT OF THE DISTRICT COURT AND THE ENTRY OF JUDGMENT FOR
RESPONDENT.  THE CASE HAD BEEN FULLY ARGUED BEFORE THE COURT OF
APPEALS, AND THOSE CLAIMS WERE PLAINLY RIPE FOR DECISION. 

UNDER THESE CIRCUMSTANCES, WE THINK THAT SOUND EXPEDITIOUS JUDICIAL
ADMINISTRATION SHOULD HAVE LED THE COURT OF APPEALS NOT TO LEAVE THESE
ISSUES UNDECIDED WHILE A COURSE WAS CHARTED REQUIRING THE INSTITUTION
AND LITIGATION OF AN ALTOGETHER SEPARATE PROCEEDING BEFORE THE I.C.C. -
A PROCEEDING WHICH MIGHT WELL ASSUME SUBSTANTIAL DIMENSIONS - TO TEST
THE SUFFICIENCY OF ONLY ONE OF RESPONDENT'S SEVERAL DEFENSES.  IF IN
CONSEQUENCE OF FINDINGS MADE BY THE COMMISSION IN SUCH A PROCEEDING IT
SHOULD BE DETERMINED THAT THE EXCULPATORY CLAUSE CANNOT BE GIVEN
EFFECT, THE COURT OF APPEALS WOULD THEN HAVE TO DECIDE THE VERY
QUESTIONS WHICH IT CAN NOW DECIDE WITHOUT THE NECESSITY FOR ANY
COLLATERAL PROCEEDING.  CONVERSELY, A PRESENT RULING ON THOSE OTHER
QUESTIONS MIGHT ENTIRELY OBVIATE THE NECESSITY FOR PROCEEDINGS IN THE
COMMISSION WHICH WOULD FURTHER DELAY THE FINAL DISPOSITION OF THIS
ALREADY PROTRACTED LITIGATION.  WE CONCLUDE, THEREFORE, THAT THE COURT
OF APPEALS SHOULD HAVE PASSED UPON THOSE ISSUES AS TO WHICH THE EXPERT
ASSISTANCE OF THE I.C.C. IS CONCEDEDLY NOT APPROPRIATE, BEFORE INVOKING
THE PROCESSES OF THE COMMISSION. 

DESPITE THE FACT THAT DISPOSITION OF RESPONDENT'S OTHER CLAIMS BY THE
COURT OF APPEALS MAY ULTIMATELY RENDER MOOT THE QUESTION OF THE
VALIDITY OF THE EXCULPATORY CLAUSE AS A DEFENSE IN THE CIRCUMSTANCES OF
THIS CASE, WE DEEM IT APPROPRIATE NOW TO REVIEW THE HOLDING OF THAT
COURT THAT THE EXCULPATORY CLAUSE WAS NOT VOID AS A MATTER OF LAW. 
WERE THE COURT OF APPEALS ON REMAND TO DECIDE THE OTHER QUESTIONS
TENDERED BY RESPONDENT ADVERSELY TO IT, IT WOULD OTHERWISE THEN BE
NECESSARY FOR PETITIONER ONCE MORE TO SEEK REVIEW HERE ON THIS VERY
QUESTION.  THE ISSUE IS ONE OF IMPORTANCE IN THE DEVELOPMENT OF THE LAW
MARITIME, AS TO WHICH WE HAVE LARGE RESPONSIBILITIES, CONSTITUTIONALLY
CONFERRED; IT IS SQUARELY PRESENTED ON THE RECORD BEFORE US; AND THE
EXIGENCIES OF THIS LITIGATION CLEARLY CALL FOR ITS RESOLUTION AT THIS
STAGE.  ACCORDINGLY, TO THIS QUESTION WE NOW TURN. 

IN BISSO THIS COURT HELD THAT A TOWBOAT OWNER MIGHT NOT, AS A DEFENSE
TO A SUIT ALLEGING LOSS DUE TO NEGLIGENT TOWAGE, RELY ON A CONTRACTUAL
PROVISION WHICH PURPORTED TO EXEMPT THE TOWBOAT ALTOGETHER FROM
LIABILITY FOR NEGLIGENT INJURY TO ITS TOW.  THERE A BARGE, WHILE BEING
TOWED ON THE MISSISSIPPI RIVER BY A STEAM TOWBOAT UNDER A PRIVATE
TOWAGE CONTRACT, WAS CAUSED BY THE NEGLIGENCE OF THOSE OPERATING THE
TOWBOAT TO COLLIDE WITH A BRIDGE PIER AND SINK.  THE COURT REVIEWED
PRIOR CASES IN THE FIELD, AND CONCLUDED THAT THE CONFLICT OF DECISION
FOUND IN THOSE CASES SHOULD BE RESOLVED BY DECLARING PRIVATE
CONTRACTUAL PROVISIONS OF THE KIND THERE INVOLVED ALTOGETHER VOID AS
CONTRARY TO "PUBLIC POLICY."  THE COURT RELIED ON "TWO MAIN REASONS"
FOR ITS CONCLUSIONS, (1) THAT SUCH A RULE WAS NECESSARY "TO DISCOURAGE
NEGLIGENCE," AND (2) THAT THE OWNER OF THE TOW REQUIRED PROTECTION FROM
"OTHERS WHO HAVE POWER TO DRIVE HARD BARGAINS."  AS WAS POINTED OUT
EXPLICITLY IN A CONCURRING OPINION, THE COURT'S DECISION WAS PERFORCE
REACHED WITHOUT CONSIDERATION OF PARTICULARIZED ECONOMIC AND OTHER
FACTORS RELEVANT TO THE ORGANIZATION AND OPERATION OF THE TUGBOAT
INDUSTRY. 

PETITIONER ARGUES THAT BISSO IS DISPOSITIVE OF THIS CASE, ON THE
THEORY THAT AN INHERENTLY ILLEGAL CONDITION GAINS NOTHING FROM BEING
FILED AS PART OF A TARIFF WITH THE COMMISSION.  (FN5)  WE THINK THAT
THIS REASONING BEGS THE TRUE QUESTION HERE PRESENTED, WHICH IS WHETHER
CONSIDERATIONS OF PUBLIC POLICY WHICH MAY BE CALLED UPON BY COURTS TO
STRIKE DOWN PRIVATE CONTRACTUAL ARRANGEMENTS BETWEEN TUG AND TOW ARE
NECESSARILY APPLICABLE TO PROVISIONS OF A TARIFF FILED WITH, AND
SUBJECT TO THE PERVASIVE REGULATORY AUTHORITY OF, AN EXPERT
ADMINISTRATIVE BODY.  IN BISSO THE CLAUSE STRUCK DOWN WAS PART OF A
CONTRACT OVER THE TERMS OF WHICH THE I.C.C., THE BODY PRIMARILY CHARGED
BY CONGRESS WITH THE REGULATION OF THE TERMS AND CONDITIONS UPON WHICH
WATER CARRIERS SUBJECT TO ITS JURISDICTION SHALL OFFER THEIR SERVICES,
HAD NO CONTROL.  IN THE PRESENT CASE THE COURTS BELOW HAVE ASSUMED, AND
PETITIONER DOES NOT CHALLENGE, THE APPLICABILITY TO THE TRANSPORTATION
WHICH RESULTED IN LOSS TO PETITIONER OF A DULY FILED TARIFF CONTAINING
THIS EXCULPATORY CLAUSE. 

IN THESE CIRCUMSTANCES WE WOULD BE MOVING TOO FAST WERE WE
AUTOMATICALLY TO EXTEND THE RULE OF BISSO TO GOVERN THE PRESENT CASE. 
(FN6)  FOR ALL WE KNOW, IT MAY BE THAT THE RATE SPECIFIED IN THE
RELEVANT TARIFF IS COMPUTED ON THE UNDERSTANDING THAT THE EXCULPATORY
CLAUSE SHALL APPLY TO RELIEVE THE TOWBOAT OWNER OF THE EXPENSE OF
INSURING ITSELF AGAINST LIABILITY FOR DAMAGE CAUSED TOWS BY THE
NEGLIGENCE OF ITS SERVANTS, AND IS A REASONABLE RATE SO COMPUTED.  IF
THAT WERE SO, IT MIGHT BE HARD TO SAY THAT PUBLIC POLICY DEMANDS THAT
THE TOW SHOULD AT ONCE HAVE THE BENEFIT OF A RATE SO COMPUTED AND BE
ABLE TO REPUDIATE THE CORRELATIVE OBLIGATION OF PROCURING ITS OWN
INSURANCE WITH KNOWLEDGE THAT THE TOWBOAT MAY BE REQUIRED TO RESPOND
THE DAMAGES FOR ANY INJURY CAUSED BY ITS NEGLIGENCE DESPITE AGREEMENT
TO THE CONTRARY.  FOR SO LONG AS THE TOWBOAT'S RATES ARE AT ALL TIMES
SUBJECT TO REGULATORY CONTROL, PROSPECTIVELY AND BY WAY OF REPARATION,
THE POSSIBILITY OF AN OVERREACHING WHEREBY THE TOWBOAT IS AT ONCE ABLE
TO EXACT HIGH RATES AND DENY THE LIABILITIES WHICH TRANSPORTATION AT
SUCH RATES MIGHT BE FOUND FAIRLY TO IMPOSE UPON IT CAN BE ABORTED BY
THE ACTION OF THE I.C.C.  THE RULE OF BISSO, HOWEVER APPLICABLE WHERE
THE TOWBOAT OWNER HAS "THE POWER TO DRIVE HARD BARGAINS," MAY WELL CALL
FOR MODIFICATION WHEN THAT POWER IS EFFECTIVELY CONTROLLED BY A
PERVASIVE REGULATORY SCHEME.  (FN7) 

FURTHER, IT MAY BE NOTED THAT THE CLAUSE RELIED ON IN THIS CASE IS BY
ITS TERMS RESTRICTED TO THE SITUATION WHERE SHIPMENTS ARE TRANSPORTED
IN BARGES FURNISHED BY OTHERS THAN THE TOWBOAT OWNER.  WHATEVER MAY BE
THE CONSIDERATIONS INVOLVED IN FORBIDDING A TOWBOAT TO CONTRACT FOR
EXEMPTION FROM LIABILITY FOR NEGLIGENCE IN OTHER CIRCUMSTANCES, IT MAY
BE THAT DIFFERENT CONSIDERATIONS APPLY WHEN THE TOWBOAT MOVES BARGES
WHICH ARE DELIVERED TO IT LOADED, SO THAT IT NEVER HAS AN OPPORTUNITY
ADEQUATELY TO INSPECT THEM BELOW THE WATERLINE, AND WHICH, IF
DEFECTIVE, MAY CREATE EMERGENCY SITUATIONS WHERE A SMALL DEGREE OF
NEGLIGENCE CAN READILY LEAD TO VERY SUBSTANTIAL MONETARY LOSS.  (FN8)
IF THE PECULIAR HAZARDS INVOLVED IN TOWING A BARGE SUPPLIED BY THE
SHIPPER ARE GREAT, AND THE METHODS OF GUARDING AGAINST THOSE HAZARDS
UNCERTAIN, IT MAY BE THAT IN AN AREA WHERE CONGRESS HAS NOT, EXPRESSLY
OR BY FAIR IMPLICATION, DECLARED FOR A PARTICULAR RESULT, THE FEDERAL
COURTS SHOULD CREATIVELY EXERCISE THEIR RESPONSIBILITY FOR THE
DEVELOPMENT OF THE LAW MARITIME TO FASHION A PARTICULARIZED RULE TO
DEAL WITH PARTICULARIZED CIRCUMSTANCES.  (FN9) 

WE MAY ASSUME THAT THE QUESTION WHETHER A CLAUSE OF THIS KIND OFFENDS
AGAINST PUBLIC POLICY IS ONE APPROPRIATE ULTIMATELY FOR JUDICIAL RATHER
THAN ADMINISTRATIVE RESOLUTION.  BUT THAT DOES NOT MEAN THAT THE COURTS
MUST THEREFORE DENY THEMSELVES THE ENLIGHTENMENT WHICH MAY BE HAD FROM
A CONSIDERATION OF THE RELEVANT ECONOMIC AND OTHER FACTS WHICH THE
ADMINISTRATIVE AGENCY CHARGED WITH REGULATION OF THE TRANSACTION HERE
INVOLVED IS PECULIARLY WELL EQUIPPED TO MARSHAL AND INITIALLY TO
EVALUATE.  AS WAS SAID IN FAR EAST CONFERENCE V. UNITED STATES, 342
U.S. 570, 574-575, THIS COURT HAS FREQUENTLY RECOGNIZED AND APPLIED: 

"  ...  A PRINCIPLE, NOW FIRMLY ESTABLISHED, THAT IN CASES RAISING
ISSUES OF FACT NOT WITHIN THE CONVENTIONAL EXPERIENCE OF JUDGES OR
CASES REQUIRING THE EXERCISE OF ADMINISTRATIVE DISCRETION, AGENCIES
CREATED BY CONGRESS FOR REGULATING THE SUBJECT MATTER SHOULD NOT BE
PASSED OVER.  THIS IS SO EVEN THOUGH THE FACTS AFTER THEY HAVE BEEN
APPRAISED BY SPECIALIZED COMPETENCE SERVE AS A PREMISE FOR LEGAL
CONSEQUENCES TO BE JUDICIALLY DEFINED.  UNIFORMITY AND CONSISTENCY IN
THE REGULATION OF BUSINESS ENTRUSTED TO A PARTICULAR AGENCY ARE
SECURED, AND THE LIMITED FUNCTIONS OF REVIEW BY THE JUDICIARY ARE MORE
RATIONALLY EXERCISED, BY PRELIMINARY RESORT FOR ASCERTAINING AND
INTERPRETING THE CIRCUMSTANCES UNDERLYING LEGAL ISSUES TO AGENCIES THAT
ARE BETTER EQUIPPED THAN COURT BY SPECIALIZATION, BY INSIGHT GAINED
THROUGH EXPERIENCE, AND BY MORE FLEXIBLE PROCEDURE." 

WE HOLD THAT THE COURT OF APPEALS CORRECTLY RULED THAT THE
EXCULPATORY CLAUSE HERE AT ISSUE SHOULD NOT BE STRUCK DOWN AS A MATTER
OF LAW, AND THAT THE PARTIES SHOULD BE AFFORDED A REASONABLE
OPPORTUNITY TO OBTAIN FROM THE I.C.C., IN AN APPROPRIATE FORM OF
PROCEEDING, A DETERMINATION AS TO THE PARTICULAR CIRCUMSTANCES OF THE
TUGBOAT INDUSTRY WHICH LEND JUSTIFICATION TO THIS FORM OF CLAUSE, IF
ANY THERE BE, OR WHICH MILITATE TOWARD A RULE WHOLLY INVALIDATING SUCH
PROVISIONS REGARDLESS OF THE FACT THAT THE CARRIER WHICH SEEKS TO
INVOKE THEM IS SUBJECT TO PROSPECTIVE AND RETROSPECTIVE RATE
REGULATION.  "CASES ARE NOT DECIDED, NOR THE LAW APPROPRIATELY
UNDERSTOOD, APART FROM AN INFORMED AND PARTICULARIZED INSIGHT INTO THE
FACTUAL CIRCUMSTANCES OF THE CONTROVERSY UNDER LITIGATION."  FEDERAL
MARITIME BOARD V. ISBRANDTSEN CO., 356 U.S. 481, 498.  THIS PRINCIPLE
HAS PARTICULAR FORCE WHEN THE COURTS ARE ASKED TO STRIKE DOWN ON
GROUNDS OF PUBLIC POLICY A CONTRACTUAL ARRANGEMENT ON ITS FACE
CONSENSUAL.    THE CASE IS REMANDED TO THE COURT OF APPEALS WITH
INSTRUCTIONS TO PASS UPON THE FIRST THREE ASSIGNMENTS OF ERROR
SPECIFIED BY RESPONDENT IN ITS APPEAL FROM THE JUDGMENT OF THE DISTRICT
COURT.  SHOULD RESOLUTION OF THOSE ISSUES NOT DISPOSE OF THE CASE, THE
COURT OF APPEALS IS DIRECTED TO REMAND THE CASE TO THE DISTRICT COURT
WITH INSTRUCTIONS TO HOLD IT IN ABEYANCE WHILE THE PARTIES SEEK THE
VIEWS OF THE I.C.C., IN ANY FORM OF PROCEEDING WHICH THAT BODY MAY DEEM
APPROPRIATE, AS TO THE CIRCUMSTANCES BEARING ON THE VALIDITY OF
RESPONDENT'S EXCULPATORY CLAUSE IN THE CONTEXT OF THIS LITIGATION, AND
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  THE DISTRICT COURT FOUND THAT THE SINKING OF THE PETER B WAS
OCCASIONED BY THE SHIPPING OF WATER THROUGH A CRACK IN THE STARBOARD
SHELL PLATE OF ONE OF ITS CARGO TANKS WHICH HAD BEEN DISCOVERED BY
PETITIONER'S LOCAL MANAGER WHILE THE BARGE WAS BEING LOADED WITH
MOLASSES UNDER HIS SUPERVISION, AND THAT RESPONDENT'S EMPLOYEES WERE
NEGLIGENT IN VARIOUS RESPECTS IN FAILING TO TAKE PROPER PRECAUTIONS TO
AVOID THE SINKING AFTER IT SHOULD HAVE BECOME EVIDENT THAT THE BARGE
WAS SHIPPING WATER. 

FN2  46 U.S.C. SEC. 192:  "IF THE OWNER OF ANY VESSEL TRANSPORTING
MERCHANDISE OR PROPERTY TO OR FROM ANY PORT IN THE UNITED STATES OF
AMERICA SHALL EXERCISE DUE DILIGENCE TO MAKE THE SAID VESSEL IN ALL
RESPECTS SEAWORTHY AND PROPERLY MANNED, EQUIPPED, AND SUPPLIED, NEITHER
THE VESSEL, HER OWNER OR OWNERS, AGENT, OR CHARTERERS, SHALL BECOME OR
BE HELD RESPONSIBLE FOR DAMAGE OR LOSS RESULTING FROM FAULTS OR ERRORS
IN NAVIGATION OR IN THE MANAGEMENT OF SAID VESSEL  ...  ." 

FN3  THE PERTINENT PROVISIONS OF THE TARIFF PROVIDED: 

"WHEN SHIPMENTS ARE TRANSPORTED IN BARGES FURNISHED BY OWNERS,
SHIPPERS, CONSIGNEES OR PARTIES OTHER THAN THE CARRIERS PARTIES TO THIS
TARIFF, SUCH BARGES AND (OR) CARGOES WILL BE HANDLED AT OWNER'S RISK
ONLY, WHETHER LOSS OR DAMAGE IS CAUSED BY NEGLIGENCE OR OTHERWISE. 

     *         *     *         *         * 

"PRESENTATION OF SHIPMENT IN BARGE FURNISHED BY SHIPPER, CONSIGNEE OR
OWNER FOR MOVEMENT ON RATES NAMED HEREIN SHALL CONSTITUTE A GUARANTEE
TO THE CARRIERS PARTIES TO THIS TARIFF THAT SUCH BARGE IS SEAWORTHY AND
BARGE AND CARGO ARE IN SUITABLE CONDITION FOR VOYAGE IN PROSPECT  ...
." 

FN4  IN REACHING THIS CONCLUSION THE COURT RELIED ON "THE RULE
FREQUENTLY STATED BY THE SUPREME COURT THAT 'UNTIL CHANGED, TARIFFS
BIND BOTH CARRIERS AND SHIPPERS WITH THE FORCE OF LAW.'  LOWDEN V.
SIMONDS-SHIELDS-LONSDALE GRAIN CO., 306 U.S. 516, 520  ...  ; CRANCER
V. LOWDEN, 315 U.S. 631, 635  ...  ."  253 F.2D 922, 925. 

FN5  COMPARE BOSTON & MAINE R. CO. V. PIPER, 246 U.S. 439, 445, WHERE
THIS COURT HELD A LIMITATION OF LIABILITY CLAUSE VOID ALTHOUGH FILED AS
PART OF A TARIFF WITH THE I.C.C.  BY A RAIL CARRIER, SAYING THAT:
"WHILE THIS PROVISION WAS IN THE BILL OF LADING, THE FORM OF WHICH WAS
FILED WITH THE RAILROAD COMPANY'S TARIFFS WITH THE INTERSTATE COMMERCE
COMMISSION, IT GAINS NOTHING FROM THAT FACT.   THE LEGAL CONDITIONS AND
LIMITATIONS IN THE CARRIER'S BILL OF LADING DULY FILED WITH THE
COMMISSION ARE BINDING UNTIL CHANGED BY THE BODY (CITATION)  ...  BUT
NOT SO OF CONDITIONS AND LIMITATIONS WHICH ARE, AS IS THIS ONE,
ILLEGAL, AND CONSEQUENTLY VOID."  THE DECISIVE DIFFERENCE BETWEEN PIPER
AND THIS CASE IS THAT THERE THE EXCULPATORY CLAUSE WAS SPECIFICALLY
DECLARED ILLEGAL BY THE INTERSTATE COMMERCE ACT ITSELF.  SEE 49 U.S.C.
SEC. 20(11). 

FN6  IT MAY BE NOTED THAT THE TUG-TOW RELATIONSHIP HAS NOT BEEN
ASSIMILATED BY THE LAW TO THAT BETWEEN A COMMON CARRIER AND SHIPPER SO
FAR AS LIABILITY IS CONCERNED.  SEE, E.G., THE STEAMER SYRACUSE, 12
WALL.  167.  THUS ALTHOUGH AT COMMON LAW A COMMON CARRIER WAS LIABLE,
WITHOUT PROOF OF NEGLIGENCE, FOR ALL DAMAGE TO THE GOODS TRANSPORTED BY
IT, UNLESS IT AFFIRMATIVELY SHOWED THAT THE DAMAGE WAS OCCASIONED BY
THE SHIPPER, ACTS OF GOD, THE PUBLIC ENEMY, PUBLIC AUTHORITY, OR THE
INHERENT VICE OR NATURE OF THE COMMODITY, SECRETARY OF AGRICULTURE V.
UNITED STATES, 350 U.S. 162, 165, N. 9, AND CASES CITED, THE DISTRICT
COURT IN THE PRESENT CASE HELD THAT RESPONDENT COULD NOT BE HELD LIABLE
IN THE ABSENCE OF ITS NEGLIGENCE AND PETITIONER DID NOT ASSAIL THAT
DETERMINATION ON APPEAL. 

PART III OF THE INTERSTATE COMMERCE ACT HAS MADE TUGBOATS COMMON
CARRIERS FOR REGULATORY PURPOSES UNDER CERTAIN CIRCUMSTANCES.  SEE
CORNELL STEAMBOAT CO. V. UNITED STATES, 321 U.S. 634.  SECTION 320(D)
OF THAT ACT, 49 U.S.C. SEC. 920(D), EXPLICITLY PROVIDES, HOWEVER, THAT
THE STATUTE IS NOT TO BE CONSTRUED TO AFFECT "LIABILITIES OF VESSELS
AND THEIR OWNERS FOR LOSS OR DAMAGE  ...  ."  THE SETTLED COMMON-LAW
RULE THAT COMMON CARRIERS MAY NOT "BY ANY FORM OF AGREEMENT SECURE
EXEMPTION FROM LIABILITY FOR LOSS OR DAMAGE CAUSED BY THEIR OWN
NEGLIGENCE," SUN OIL CO. V. DALZELL TOWING CO., 287 U.S. 291, 294;
RAILROAD CO. V. LOCKWOOD, 17 WALL.  357; LIVERPOOL & G.W. STEAM CO. V.
PHENIX INS. CO., 129 U.S. 397, THUS HAS NO APPLICATION HERE. 

FN7  UNDER PART III OF THE INTERSTATE COMMERCE ACT ALL "COMMON
CARRIERS BY WATER: AS THEREIN DEFINED (SEE 49 U.S.C. SEC. 902(D)) ARE
REQUIRED TO FILE WITH THE COMMISSION AND KEEP OPEN TO PUBLIC INSPECTION
"TARIFFS SHOWING ALL RATES, FARES, CHARGES, CLASSIFICATIONS, RULES,
REGULATIONS, AND PRACTICES FOR THE TRANSPORTATION  ...  OF  ...
PROPERTY" AND STATING "ANY RULES OR REGULATIONS WHICH IN ANYWISE
CHANGE, AFFECT, OR DETERMINE ANY PART OF THE AGGREGATE OF SUCH RATES,
FARES, OR CHARGES, OR THE VALUE OF THE SERVICE RENDERED TO THE
PASSENGER, SHIPPER, OR CONSIGNEE."  49 U.S.C. SEC. 906(A).  CONTRACT
CARRIERS ARE SUBJECT TO SIMILAR REQUIREMENTS.  49 U.S.C. SEC. 906(E). 
THE COMMISSION MAY SUSPEND NEWLY FILED TARIFFS WHILE IT INVESTIGATES
THEM, 49 U.S.C. SEC. 907(G), (I), AND MAY AT ANY TIME INITIATE ANY
INVESTIGATION, UPON COMPLAINT OR ON ITS OWN INITIATIVE, INTO THE
REASONABLENESS OF FILED TARIFFS.  49 U.S.C. SEC. 907(B), (H). 

FN8  IT IS OF COURSE OPEN TO THE I.C.C. TO CONSIDER ANY OTHER FACTORS
WHICH IT MAY DEEM RELEVANT TO THE QUESTION OF THE PROPRIETY OF
EXCULPATORY CLAUSES IN REGULATED TOWAGE TARIFFS, SUCH AS THE
AVAILABILITY TO SHIPPERS OF ARRANGEMENTS WHEREBY USE OF THE TOWER'S
BARGE, OR PAYMENT OF HIGHER ALTERNATIVE RATE, RESULTS IN AN ASSUMPTION
BY THE TOWER OF LIABILITY FOR ITS NEGLIGENCE, AND THE RELATIVE
PRACTICALITY AND COST OF THE SECURING OF INSURANCE AGAINST THE KIND OF
RISK HERE INVOLVED BY SHIPPER AND BY TOWER.  WE DO NOT INTIMATE ANY
VIEW AS TO THE RELATIVE WEIGHT OF THE FACTORS HEREIN MENTIONED. 

FN9  CONGRESS HAS IN SOME INSTANCES DECLARED BY STATUTE THE
CIRCUMSTANCES UNDER WHICH CARRIERS MAY CONTRACT FOR RELEASE FROM OR
LIMITATION OF LIABILITY, RULES GOVERNING THE LIABILITY OR EXEMPTION
FROM LIABILITY OF CARRIERS IRRESPECTIVE OF CONTRACT.  SEE 46 U.S.C.
SECS. 181-196, 1300-1315 (WATER CARRIERS); 49 U.S.C. SECS. 20(11), 316
(RAIL AND MOTOR CARRIERS).  WHERE SUCH STATUTES APPLY OF COURSE NO
AGREEMENT IN DEROGATION OF THEM, EVEN IF EMBODIED IN A TARIFF, IS
VALID.  SEE, E.G., ADAMS EXPRESS CO. V. CRONINGER, 226 U.S. 491; BOSTON
& MAINE R. CO. V. PIPER, SUPRA. 

AS WE HAVE NOTED ABOVE, RESPONDENT CLAIMS THAT SEC. 3 OF THE HARTER
ACT, 46 U.S.C.  SEC. 192, APPLIES TO EXEMPT IT FROM LIABILITY IN THIS
CASE IRRESPECTIVE OF THE EFFECT GIVEN ITS TARIFF EXCULPATORY CLAUSE. 
BE THAT AS IT MAY, THE CITED PROVISION IS AMPLE DEMONSTRATION THAT
THERE IS NO GENERAL CONGRESSIONAL POLICY REQUIRING WATER CARRIERS TO BE
HELD LIABLE FOR DAMAGE CAUSED BY THE NEGLIGENCE OF THEIR SERVANTS IN
ALL CASES. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS BELIEVE
THAT THE RULE OF LAW ANNOUNCED IN BISSO SHOULD NOT BE CHANGED BY THE
INTERSTATE COMMERCE COMMISSION, AND WOULD THEREFORE REVERSE THIS
JUDGMENT. 
..END :







RALEY V. OHIO 360 U.S. 423 


NO. 175.  ARGUED APRIL 22-23, 1959.  - DECIDED JUNE 22, 1959.* - 167
OHIO ST. 295, 147 N.E.2D 847, AFFIRMED IN PART AND REVERSED IN PART. 

*TOGETHER WITH NO. 463, MORGAN V. OHIO, ALSO ON APPEAL FROM THE SAME
COURT, ARGUED APRIL 23, 1959. 


THE FOUR APPELLANTS WERE CONVICTED IN STATE COURTS FOR REFUSING TO
ANSWER QUESTIONS ABOUT COMMUNISTIC OR SUBVERSIVE ACTIVITIES PUT TO THEM
AT SESSIONS OF THE "UN-AMERICAN ACTIVITIES COMMISSION" ESTABLISHED IN
THE LEGISLATIVE BRANCH OF THE OHIO GOVERNMENT.  EACH WAS LED BY THE
COMMISSION TO BELIEVE THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION
AFFORDED BY THE OHIO CONSTITUTION WAS GENERALLY AVAILABLE TO HIM, AND
EACH RELIED ON THAT PRIVILEGE; BUT THE OHIO SUPREME COURT SUSTAINED
THEIR CONVICTIONS ON THE GROUND THAT THE PRIVILEGE WAS NOT AVAILABLE TO
THEM, BECAUSE A STATE IMMUNITY STATUTE DEPRIVED THEM OF THE PROTECTION
OF THAT PRIVILEGE.  HELD: 

1.  THE APPEALS ARE DISMISSED FOR WANT OF JURISDICTION UNDER 28
U.S.C. SEC. 1257(2), SINCE APPELLANTS HAVE NOT DEMONSTRATED THAT AN
ATTACK WAS MADE BY THEM IN THE STATE COURTS ON THE VALIDITY OF A STATE
STATUTE UNDER THE FEDERAL CONSTITUTION; BUT CERTIORARI IS GRANTED,
SINCE VARIOUS RIGHTS, PRIVILEGES AND IMMUNITIES UNDER THE FEDERAL
CONSTITUTION WERE CLAIMED IN THE STATE COURTS, AS REQUIRED BY 28 U.S.C.
SEC. 1257(3).  PP. 434-437. 

2.  THE CONVICTIONS OF THREE OF THE APPELLANTS VIOLATED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, SINCE THEY WERE ENTRAPPED
BY BEING CONVICTED FOR EXERCISING A PRIVILEGE WHICH THE COMMISSION HAD
LED THEM TO BELIEVE WAS AVAILABLE TO THEM.  PP. 437-440. 

3.  THE CONVICTION OF THE OTHER APPELLANT FOR REFUSING TO STATE WHERE
HE LIVED AFTER BEING DIRECTED BY THE COMMISSION TO DO SO IS AFFIRMED BY
AN EQUALLY DIVIDED COURT.  PP. 440-442, 442-445. 

RALEY ET AL. V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THESE TWO APPEALS INVOLVE CONVICTIONS OF FOUR APPELLANTS FOR REFUSAL
TO ANSWER CERTAIN QUESTIONS PUT TO THEM AT SESSIONS OF THE "UN-AMERICAN
ACTIVITIES COMMISSION" OF THE STATE OF OHIO, ESTABLISHED IN THE
LEGISLATIVE BRANCH OF THE OHIO GOVERNMENT.  (FN1)  THE APPELLANTS HAD
CLAIMED THE PRIVILEGE AGAINST SELF-INCRIMINATION IN REFUSING TO ANSWER
EACH OF THE QUESTIONS.  THE CASES ARE BEFORE US FOR THE SECOND TIME; ON
PRIOR APPEALS THE JUDGMENTS BELOW WERE VACATED AND THE CAUSES REMANDED
FOR RECONSIDERATION IN THE LIGHT OF SWEEZY V. NEW HAMPSHIRE, 354 U.S.
234, AND WATKINS V. UNITED STATES, 354 U.S. 178.  SEE 354 U.S. 929. 
THE REMAND RESULTED IN A REAFFIRMANCE OF THE PRIOR JUDGMENT WITHOUT
DISCUSSION, 167 OHIO ST. 295, 147 N.E.2D 847, AND ON THE PRESENT
APPEALS WE POSTPONED FURTHER CONSIDERATION OF THE JURISDICTIONAL
QUESTIONS PRESENTED UNTIL THE ARGUMENTS ON THE MERITS.  358 U.S. 862,
863. 

THE ISSUES TENDERED BY THE PARTIES RANGE BROADLY AND INVOLVE THE
POWER OF THE OHIO LEGISLATURE, IN VIEW OF EXISTING FEDERAL LEGISLATION,
TO INVESTIGATE ACTIVITIES DEEMED SUBVERSIVE OF THE FORMS OF GOVERNMENT
WITHIN THE NATION, CF. PENNSYLVANIA V. NELSON, 350 U.S. 497; THE POWER
OF THE STATE TO COMPEL DISCLOSURE OF MATTERS INTERCONNECTED WITH THE
PROTECTED FREEDOMS OF SPEECH AND ASSEMBLY, CF. NAACP V. ALABAMA, 357
U.S. 449; SWEEZY V. NEW HAMPSHIRE, SUPRA; THE EXISTENCE OF AN EXPRESSED
LEGISLATIVE INTEREST FOR SUCH AN INQUIRY, AND ITS DEFINITION AND
ARTICULATION TO THE PERSON SUMMONED, CF. WATKINS V. UNITED STATES,
SUPRA; SWEEZY V. NEW HAMPSHIRE, SUPRA; SCULL V. VIRGINIA, 359 U.S. 344;
AND THE EFFECT ON TESTIMONIAL COMPULSION OF STATE IMMUNITY STATUTES NOT
AFFORDING IMMUNITY FROM FEDERAL PROSECUTION, CF. KNAPP V. SCHWEITZER,
357 U.S. 371.  BUT OUR DISPOSITION OF THESE CASES MAKES IT UNNECESSARY
TO CONSIDER THE APPLICATION OF THE PRINCIPLES OF THE CASES JUST CITED. 
THE APPELLANTS WERE INFORMED BY THE COMMISSION THAT THEY HAD A RIGHT TO
RELY ON THE PRIVILEGE AGAINST SELF-INCRIMINATION AFFORDED BY ART. I,
SEC. 10, OF THE OHIO CONSTITUTION.  THE OHIO SUPREME COURT, HOWEVER,
HELD THAT THE APPELLANTS WERE PRESUMED TO KNOW THE LAW OF OHIO - THAT
AN OHIO IMMUNITY STATUTE DEPRIVED THEM OF THE PROTECTION OF THE
PRIVILEGE - AND THAT THEY THEREFORE HAD COMMITTED AN OFFENSE BY NOT
ANSWERING THE QUESTIONS AS TO WHICH THEY ASSERTED THE PRIVILEGE.  WE
HOLD THAT IN THE CIRCUMSTANCES OF THESE CASES, THE JUDGMENTS OF THE
OHIO SUPREME COURT AFFIRMING THE CONVICTIONS VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT AND MUST BE REVERSED EXCEPT AS TO
ONE CONVICTION, AS TO WHICH WE ARE EQUALLY DIVIDED.  AFTER THE
COMMISSION, SPEAKING FOR THE STATE, ACTED AS IT DID, TO SUSTAIN THE
OHIO SUPREME COURT'S JUDGMENT WOULD BE TO SANCTION AS INDEFENSIBLE SORT
OF ENTRAPMENT BY THE STATE - CONVICTING A CITIZEN FOR EXERCISING A
PRIVILEGE WHICH THE STATE HAD CLEARLY TOLD HIM WAS AVAILABLE TO HIM. 
WE AGREE WITH THAT PART OF JUDGE STEWART'S DISSENTING OPINION IN THE
OHIO SUPREME COURT IN WHICH HE SAID:  "SINCE THE DEFENDANTS WERE
APPRISED BY THE COMMISSION AT THE TIME THEY WERE TESTIFYING THAT THEY
HAD A RIGHT TO REFUSE TO ANSWER QUESTIONS WHICH MIGHT INCRIMINATE THEM,
THEY COULD NOT POSSIBLY IN FOLLOWING THE ADMONITION OF THE COMMISSION
BE IN CONTEMPT OF IT  ...  ."  164 OHIO ST., AT 563, 133 N.E.2D, AT
125.  A RATHER DETAILED DESCRIPTION OF THE PROCEEDINGS BELOW MUST BE
MADE TO ILLUMINATE THE BASIS OF DECISION BELOW AND THE TURNING POINT OF
OUR REVIEW OF IT HERE. 

MRS. MORGAN, APPELLANT IN NO. 463, WAS SUMMONED BEFORE THE COMMISSION
AND INTERROGATED MAINLY IN REGARD TO COMMUNIST PARTY ACTIVITIES.  SHE
APPEARED WITHOUT COUNSEL.  TO EACH QUESTION PUT SHE ANSWERED, "I REGRET
THAT I CANNOT ANSWER YOUR QUESTION UNDER THE FIFTH AMENDMENT OF THE
CONSTITUTION, BECAUSE TO DO SO WOULD GIVE YOUR COMMITTEE AN OPPORTUNITY
TO INCRIMINATE ME," OR SOME MORE ABBREVIATED FORM OF WORDS TO THE SAME
EFFECT.  SUCH RESPONSES WERE GIVEN TO VIRTUALLY ALL THE QUESTIONS AND
IN ALMOST EVERY CASE THE COMMISSION PROCEEDED DIRECTLY TO ASK ITS NEXT
QUESTION AFTER RECEIVING THE RESPONSE.  IN NO CASE DID THE COMMISSION
DIRECT THAT SHE ANSWER ITS QUESTION.  IN ONE OR TWO CASES COMMISSION
MEMBERS EXPRESSED SURPRISE THAT SHE MIGHT CONSIDER AN ANSWER
INCRIMINATING, AND ON SUCH AN OCCASION THE CHAIRMAN ASKED HER, "MRS. 
MORGAN, ARE YOU AWARE OF THE FACT THAT YOUR FAILURE TO ANSWER QUESTIONS
- SOME QUESTIONS OF THIS COMMISSION, MIGHT ALSO TEND TO PUT YOU IN AN
EMBARRASSING SITUATION?"  AT ANOTHER POINT, THE CHAIRMAN POSITIVELY
INFORMED HER, "I SHOULD LIKE TO ADVISE YOU UNDER THE FIFTH AMENDMENT,
YOU ARE PERMITTED TO REFUSE TO ANSWER QUESTIONS THAT MIGHT TEND TO
INCRIMINATE YOU  ...  .  BUT YOU ARE NOT PERMITTED TO REFUSE TO ANSWER
QUESTIONS SIMPLY FOR YOUR OWN CONVENIENCE." 

RALEY, STERN, AND BROWN, APPELLANTS IN NO. 175, APPEARED BEFORE THE
COMMISSION SUCCESSIVELY ON ANOTHER OCCASION, ABOUT SIX MONTHS LATER. 
THEY WERE INTERROGATED ABOUT SUBVERSIVE ACTIVITIES IN THE LABOR
MOVEMENT.  RALEY ANSWERED SOME QUESTIONS, BUT TO MOST OF THEM ASSERTED
THE PRIVILEGE AGAINST SELF-INCRIMINATION OF THE FEDERAL AND OHIO
CONSTITUTIONS.  MOST OF HIS ASSERTIONS OF THE PRIVILEGE, INCLUDING HIS
INITIAL ONES, WERE NOT MADE THE SUBJECT OF COMMENT OR QUESTION BY THE
COMMISSION, THE NEXT QUESTION IN THE INQUIRY BEING PUT AT ONCE.  ON
SOME FEW OCCASIONS, WHEN RALEY CLAIMED THE PRIVILEGE, THE COMMISSION
MEMBERS INDICATED THEIR DOUBTS WHETHER ANY ANSWER TO A SPECIFIC
QUESTION PUT COULD BE INCRIMINATING.  ON ONE OCCASION, THE COMMISSION
ASKED RALEY AS TO WHETHER HE RECOLLECTED A CERTAIN INTERVIEW.  RALEY
CLAIMED THE PRIVILEGE.  THE CHAIRMAN TOOK THE VIEW THAT RALEY WAS
REQUIRED TO SPEAK AS TO WHETHER HE RECALLED THE INTERVIEW, BUT ASSURED
HIM THAT THE PRIVILEGE EXISTED AS TO THE DETAILS OF THE INTERVIEW:  "IF
YOU RECALL IT, AND WE ASK YOU AS TO YOUR RECOLLECTION, THEN YOU ARE
PRIVILEGED TO CLAIM YOUR RIGHTS UNDER THE CONSTITUTION  ...  ."  THIS
AND ONE OTHER OCCASION WERE THE ONLY ONES IN WHICH THE COMMISSION EVEN
APPROACHED DIRECTING AN ANSWER TO A QUESTION BY RALEY; BUT IN ONE CASE
THE CHAIRMAN FINALLY ASKED RALEY TO CONFER WITH HIS COUNSEL TO
DETERMINE WHETHER IN HIS OPINION THE PRIVILEGE APPLIED, AND IN ANOTHER
RALEY DID SO OF HIS OWN ACCORD; THEN, UPON AN AFFIRMATIVE REPLY BY
RALEY'S COUNSEL, THE COMMISSION PASSED AT ONCE TO THE NEXT QUESTION. 
(FN2) 

STERN WAS THE NEXT PERSON TO APPEAR AT THE INQUIRY.  AFTER GIVING HIS
NAME, HE CLAIMED THE PRIVILEGE AGAINST SELF-INCRIMINATION AT THE VERY
NEXT QUESTION, WHICH CALLED FOR HIS ADDRESS.  COMMISSION COUNSEL ASKED
HIM, "IS THERE SOMETHING ABOUT THE NATURE OR CHARACTER OF THE HOME IN
WHICH YOU LIVE THAT TO ADMIT YOU LIVE THERE WOULD MAKE YOU SUBJECT TO
CRIMINAL PROSECUTION?"  ON STERN'S CONTINUED REFUSAL TO ANSWER, THE
CHAIRMAN DIRECTED AN ANSWER TO THE QUESTION, WHICH WAS REFUSED.  TO
MOST SUBSEQUENT QUESTIONS, STERN AGAIN CLAIMED THE PRIVILEGE AGAINST
SELF-INCRIMINATION, AND ON THE GREAT MAJORITY OF QUESTIONS, THE
COMMISSION SIMPLY PASSED ON TO THE NEXT QUESTION.  THE CHAIRMAN AND
STERN WORKED OUT A SHORT FORM OF WORDS WHEREBY HE WOULD BE UNDERSTOOD
TO BE CLAIMING THE PRIVILEGE AS TO A PARTICULAR QUESTION.  (FN3)  AT
ONE POINT STERN ASKED THE COMMISSION IF THE COMMISSION HAD THE RIGHT TO
GO INTO HIS OPINIONS AND TO REQUIRE HIM TO SPEAK AS TO THEM.  THE
CHAIRMAN INFORMED HIM, "NOT IF IN YOUR OPINION BY SO DOING, YOU MIGHT
TEND TO INCRIMINATE YOURSELF."  ON A FEW OCCASIONS THE CHAIRMAN
REQUESTED THAT STERN ANSWER A QUESTION, BUT EXCEPT FOR THE QUESTION AS
TO HIS RESIDENCE, THE OCCASIONS WERE THOSE IN WHICH STERN HAD NEITHER
GIVEN A DIRECT ANSWER NOR INVOKED THE PRIVILEGE, AND UPON ASSERTION OF
THE PRIVILEGE IN THESE CASES THE REQUEST WAS NOT RENEWED.  (FN4) 

BROWN THEN WAS SUBJECTED TO INQUIRY.  HE CLAIMED THE PRIVILEGE AS TO
SELF-INCRIMINATION TO MOST OF THE QUESTIONS PUT TO HIM.  WHILE THE
CHAIRMAN NEVER TOLD HIM IN SO MANY WORDS (AS HE HAD TOLD THE OTHER
THREE APPELLANTS) THAT THE PRIVILEGE WAS AVAILABLE, BROWN AND THE
CHAIRMAN ENGAGED IN LONG COLLOQUIES IN AN ATTEMPT BY THE CHAIRMAN TO
CLARIFY THAT BY USING A CERTAIN FORM OF WORDS BROWN WAS CLAIMING THE
PRIVILEGE.  (FN5)  THE CHAIRMAN'S CONCERN IS INEXPLICABLE ON ANY OTHER
BASIS THAN THAT HE DEEMED THE PRIVILEGE AVAILABLE AT THE INQUIRY, AND
HIS STATEMENTS WOULD TEND TO CREATE SUCH AN IMPRESSION IN ONE APPEARING
AT THE INQUIRY.  WHEN ONCE HE MADE IT CLEAR THAT HE WAS CLAIMING THE
PRIVILEGE AS TO A QUESTION, BROWN WAS NEVER DIRECTED TO ANSWER.  HE WAS
ON A COUPLE OF OCCASIONS DIRECTED TO ANSWER A QUESTION WHEN HE WAS
ENGAGING IN A COLLOQUY WITH THE COMMISSION WITHOUT EITHER HAVING
ANSWERED IT DIRECTLY OR HAVING CLAIMED THE PRIVILEGE; UPON HIS CLAIM OF
THE PRIVILEGE, THE NEXT QUESTION WAS AT ONCE PUT.  (FN6) 

THE OHIO IMMUNITY STATUTE EXTENDS, SO FAR AS IS HERE RELEVANT, TO ANY
PERSON APPEARING BEFORE A LEGISLATIVE COMMITTEE AND GRANTS IMMUNITY
FROM STATE PROSECUTIONS OR PENALTIES "ON ACCOUNT OF A TRANSACTION,
MATTER, OR THING, CONCERNING WHICH HE TESTIFIES"; THE STATUTE DECLARES
THAT THE TESTIMONY GIVEN ON SUCH AN APPEARANCE "SHALL NOT BE USED AS
EVIDENCE IN A CRIMINAL PROCEEDING" AGAINST THE PERSON TESTIFYING.  OHIO
REV. CODE SEC. 101.44.  FOR REASONS UNEXPLAINED, THE EXISTENCE OF THIS
IMMUNITY WAS NEVER SUGGESTED BY THE COMMISSION TO ANY OF THE
APPELLANTS, AND IN FACT, AS THE ABOVE STATEMENT MAKES EVIDENT, THE
COMMISSION'S ACTIONS WERE TOTALLY INCONSISTENT WITH A VIEW ON ITS PART
THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION WAS NOT AVAILABLE.  THE
COMMISSION THOUGHT THE PRIVILEGE AVAILABLE, AND IT GAVE POSITIVE ADVICE
THAT IT COULD BE USED.  AS THE CHAIRMAN TESTIFIED IN THE PROCEEDINGS
BELOW:  "IT WAS THE POLICY OF THE COMMISSION NOT TO PRESS QUESTIONS
WHICH WE FELT WOULD BE OF AN INCRIMINATING NATURE.  FOR INSTANCE,
WHENEVER A WITNESS WAS ASKED A QUESTION - I BELIEVE EVERY WITNESS
BEFORE THE COMMISSION WAS ASKED THE QUESTION - ARE YOU OR HAVE YOU EVER
BEEN A MEMBER OF THE COMMUNIST PARTY, AND IF THE WITNESS REFUSED TO
ANSWER THAT QUESTION, WE DID NOT PRESS IT. FREQUENTLY, I MADE
STATEMENTS WHICH INDICATED THE POLICY OF THE COMMISSION." 

INDICTMENTS WERE FOUND AGAINST THE FOUR APPELLANTS FOR FAILURE TO
ANSWER VARIOUS OF THE QUESTIONS PUT TO THEM AT THE INQUIRY.  IN THE
CASES OF RALEY, STERN, AND BROWN - WHO WERE INDICTED AT THE SAME TIME
AND TRIED TOGETHER, BUT IN A DIFFERENT COURT FROM MRS. MORGAN - ONLY A
FEW OF THE QUESTIONS WERE MADE THE SUBJECT OF THE INDICTMENT.  (FN7)
THERE APPEARS TO HAVE BEEN SOME EFFORT TO RESTRICT THEIR INDICTMENTS TO
THOSE QUESTIONS TO WHICH THE PROSECUTION THOUGHT NO ANSWER COULD HAVE
BEEN INCRIMINATING.  ON THE OTHER HAND, VIRTUALLY EVERY QUESTION ASKED
MRS. MORGAN WAS MADE THE SUBJECT OF HER INDICTMENT.  (FN8) 

A JURY WAS WAIVED BY RALEY, STERN, AND BROWN, AND THEY WERE FOUND
GUILTY ON EACH OF THE RELATIVELY FEW COUNTS FOUND AGAINST THEM, THE
TRIAL COURT FILING NO OPINION OR CONCLUSIONS OF LAW.  THE COURT OF
APPEALS AFFIRMED THE CONVICTIONS ON SOME OF THE COUNTS AS TO RALEY, ON
ONE OF THE TWO COUNTS AS TO STERN, AND ON ALL THE COUNTS AS TO BROWN,
AND REVERSED THE CONVICTIONS ON SOME OF THE COUNTS AS TO RALEY AND ON
ONE COUNT AS TO STERN.  (FN9)  100 OHIO APP. 75, 99-100, 136 N.E.2D
295, 315-316.  IT HELD THAT THERE WAS SUFFICIENT DIRECTION TO THE
WITNESSES TO ANSWER THE QUESTIONS INVOLVED, SO THAT THEIR REFUSAL WAS
WILLFUL.  THE TOUCHSTONE BY WHICH IT AFFIRMED SOME OF THE COUNTS OF THE
CONVICTIONS AND REVERSED OTHERS WAS WHETHER, IN THE COURT'S VIEW, AN
ANSWER TO THE QUESTION MIGHT HAVE IN FACT BEEN INCRIMINATING.  WHILE
THE COURT INDICATED THAT THE IMMUNITY STATUTE APPLIED, IT DID NOT RELY
UPON IT IN ITS JUDGMENT - AS IT EXPRESSLY STATED, 100 OHIO APP., AT 99,
136 N.E.2D, AT 315, AND AS ITS REVERSALS OF CERTAIN OF THE COUNTS
INDICATED. 

A JURY WAS ALSO WAIVED BY MRS. MORGAN AND SHE TOO WAS FOUND GUILTY BY
A TRIAL JUDGE.  THE JUDGE ACQUITTED HER ON A FEW COUNTS AS TO QUESTIONS
FOUND NOT PERTINENT TO THE INQUIRY OR DUPLICATIVE OF OTHER QUESTIONS. 
BUT AS TO THE REMAINING COUNTS, HE RULED THAT HER PLEA OF SELF
INCRIMINATION WAS NOT VALID, BECAUSE SHE HAD REFERRED SOLELY TO THE
FIFTH AMENDMENT AND NOT TO THE APPROPRIATE PROVISION OF THE OHIO
CONSTITUTION GUARANTEEING FREEDOM FROM COMPULSORY SELF-INCRIMINATION. 
OHIO CONST., ART. I, SEC. 10.  BECAUSE OF THIS, HE HELD THAT IT WAS
UNNECESSARY TO HAVE DIRECTED MRS. MORGAN TO ANSWER THE QUESTIONS OR TO
HAVE ADVISED HER AT THE INQUIRY THAT HER PLEA OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION WAS REJECTED.  FURTHER CONSTITUTIONAL CLAIMS WERE
SUMMARILY REJECTED.  THE COURT OF APPEALS - A DIFFERENT ONE FROM THAT
WHICH PASSED ON THE APPEAL OF RALEY, STERN, AND BROWN - AFFIRMED THE
JUDGMENT FOR THE REASONS STATED IN THE TRIAL COURT'S OPINION. 

ON APPEAL, THE SUPREME COURT OF OHIO, THOUGH AFFIRMING THE
CONVICTIONS, ABANDONED RELIANCE ON THE THEORIES UNDER WHICH THE
APPELLANTS WERE FOUND GUILTY BY THE COURTS BELOW.  IT RULED THAT A FAIR
REFERENCE TO THE PRIVILEGE AGAINST SELF-INCRIMINATION OF THE UNITED
STATES CONSTITUTION WAS ADEQUATE TO INVOKE THE PRIVILEGE UNDER THE OHIO
CONSTITUTION, FINDING SUCH REFERENCE MADE.  164 OHIO ST., AT 538-539,
133 N.E.2D, AT 111-112.  AND IT DID NOT DISCUSS THE THEORY ON WHICH THE
COURT OF APPEALS RELIED IN THE CASE OF RALEY, STERN, AND BROWN; ITS
BASIS FOR AFFIRMING THE JUDGMENT WAS ENTIRELY INDEPENDENT OF THAT OF
THE COURT OF APPEALS.  THE SUPREME COURT PLACED ITS RELIANCE ENTIRELY
ON THE IMMUNITY STATUTE.  IT HELD THAT THE IMMUNITY UNDER THE STATUTE
WAS AUTOMATICALLY AVAILABLE TO THE APPELLANTS, THAT EVEN THOUGH IT DID
NOT PRECLUDE FEDERAL PROSECUTION IT WAS ADEQUATE TO MAKE ANSWERS
COMPELLABLE, AND THAT SINCE "THE IMMUNITY GRANTED  ...  PRECLUDED THE
POSSIBILITY OF JUSTIFYING A REFUSAL" TO ANSWER ON THE GROUNDS OF SELF
INCRIMINATION, 164 OHIO ST., AT 553, 133 N.E.2D, AT 120, A DIRECTION BY
THE COMMISSION TO THE APPELLANTS TO ANSWER WAS NOT NECESSARY.  VARIOUS
OBJECTIONS TO THE CONVICTIONS UNDER STATE LAW WERE ALSO PASSED ON AND
REJECTED.  AS WE HAVE NOTED, ON REMAND FROM THIS COURT, THE OHIO
SUPREME COURT PASSED ON CONTENTIONS MADE UNDER SWEEZY V. NEW HAMPSHIRE,
SUPRA, AND WATKINS V. UNITED STATES, SUPRA, AND ADHERED TO ITS FORMER
JUDGMENTS. 

FIRST.  WE MUST EXAMINE OUR JURISDICTION OVER THESE APPEALS. 
APPELLANTS ASSERT JURISDICTION UNDER 28 U.S.C. SEC. 1257(2), A GRANT OF
JURISDICTION ON APPEAL, "WHERE IS DRAWN IN QUESTION THE VALIDITY OF A
STATUTE OF ANY STATE ON THE GROUND OF ITS BEING REPUGNANT TO THE
CONSTITUTION, TREATIES OR LAWS OF THE UNITED STATES, AND THE DECISION
IS IN FAVOR OF ITS VALIDITY."  IN THEIR NOTICES OF APPEAL TO THIS
COURT, APPELLANTS HAVE PHRASED SOME OF THEIR FEDERAL CONSTITUTIONAL
CLAIMS AS ATTACKS ON THE CONSTITUTIONALITY OF THE OHIO STATUTE
AUTHORIZING THE COMMISSION AND THE STATUTE PROVIDING FOR IMMUNITY.  BUT
THIS DOES NOT SUFFICE:  "IT IS ESSENTIAL TO OUR JURISDICTION ON APPEAL
...  THAT THERE BE AN EXPLICIT AND TIMELY INSISTENCE IN THE STATE
COURTS THAT A STATE STATUTE, AS APPLIED, IS REPUGNANT TO THE FEDERAL
CONSTITUTION, TREATIES OR LAWS."  CHARLESTON FEDERAL SAVINGS & LOAN
ASSN. V. ALDERSON, 324 U.S. 182, 185.  DESPITE THE IMPORT OF OUR ORDER
POSTPONING THE CONSIDERATION OF JURISDICTION TILL THE HEARING ON THE
MERITS, SEE RULE 16(4) OF THIS COURT, (FN10) APPELLANTS HAVE MADE NO
EFFORT TO SUPPORT THEIR BURDEN OF DEMONSTRATING AN ATTACK MADE BY THEM
ON THE VALIDITY OF A STATE STATUTE IN THE STATE COURTS, AND WE HAVE
FOUND NONE.  ACCORDINGLY THE APPEALS ARE DISMISSED.  SEE SWEEZY V. NEW
HAMPSHIRE, SUPRA, AT 236.  BUT SINCE VARIOUS RIGHTS, PRIVILEGES AND
IMMUNITIES UNDER THE FEDERAL CONSTITUTION WERE CLAIMED BELOW, 28 U.S.C.
SEC. 1257(3), WE CONSIDER THE APPEAL PAPERS AS PETITIONS FOR
CERTIORARI, AND IN VIEW OF THE PUBLIC IMPORTANCE OF THE QUESTIONS
PRESENTED, GRANT CERTIORARI.  28 U.S.C. SEC. 2103. 

THE VIEW WE TAKE OF THE MERITS OF THE CASE REQUIRES US TO EXAMINE
WHETHER THE APPELLANTS MADE A PROPER CHALLENGE TO THEIR CONVICTIONS
BELOW, ON FEDERAL CONSTITUTIONAL GROUNDS, ON THE THEORY THAT THEY WERE
BEING CONVICTED FOR CLAIMING THE PRIVILEGE AGAINST SELF-INCRIMINATION
AFTER NOT BEING GIVEN TO UNDERSTAND AT THE TIME OF THE INQUIRY THAT
SUCH A PRIVILEGE WAS UNAVAILABLE.  IN THE LOWER OHIO COURTS, FEDERAL
CONSTITUTIONAL QUESTIONS AS TO THE ADEQUACY OF THE INSISTENCE OF THE
COMMISSION ON AN ANSWER TO ITS QUESTIONS WERE INVOLVED IN THE LOWER
COURTS' DISCUSSION OF THE CASES.  IN THE APPEAL OF RALEY, STERN AND
BROWN, THE COURT OF APPEALS DISCUSSED THE EXTENT TO WHICH THE
COMMISSION GAVE THE DEFENDANTS TO UNDERSTAND THAT ANSWERS WERE IN FACT
DESIRED TO PARTICULAR QUESTIONS, AND THIS AS PART OF ITS CONSIDERATION
OF CONSTITUTIONAL CLAIMS UNDER BOTH THE FEDERAL AND OHIO
CONSTITUTIONS.  100 OHIO APP., AT 87-90, 136 N.E.2D, AT 308-310.  THE
TRIAL COURT'S OPINION IN MRS. MORGAN'S CASE REFERS TO THE CONTENTION
THAT A DIRECTION TO ANSWER WAS NOT GIVEN TO THE DEFENDANT, AND ALSO
RECITES THAT A DUE PROCESS CLAIM UNDER THE FEDERAL CONSTITUTION WAS
MADE. 

THE ASSIGNMENTS OF ERROR MADE BY MRS. MORGAN IN THE STATE SUPREME
COURT SHOW THAT SHE CLAIMED IN THAT COURT THAT THE JUDGMENT OF
CONVICTION WAS VIOLATIVE OF DUE PROCESS, AS GUARANTEED BY THE FEDERAL
CONSTITUTION, IN THAT WHILE SHE CLAIMED THE PRIVILEGE, SHE WAS NOT
"CHARGED WITH REFUSAL TO ANSWER ANY QUESTIONS ASKED BY MEMBERS OF THE
COMMISSION AND THAT SHE WAS NOT NOTIFIED THAT HER CLAIM OF THE
PRIVILEGE WAS REJECTED BY THE COMMISSION."  THE STATE SUPREME COURT
PASSED ON THIS CLAIM, (FN11) HOLDING THAT A DIRECTION TO ANSWER WAS
UNNECESSARY BECAUSE OF THE IMMUNITY STATUTE, AND STATED GENERALLY THAT
ITS REASONING AND CONCLUSIONS IN HER CASE "APPLY WITH EQUAL FORCE TO
THE APPEAL OF RALEY, STERN AND BROWN."  164 OHIO ST., AT 532, 133
N.E.2D, AT 108.  THERE CAN BE NO QUESTION AS TO THE PROPER PRESENTATION
OF A FEDERAL CLAIM WHEN THE HIGHEST STATE COURT PASSES ON IT.  SEE
MANHATTAN LIFE INS. CO. V. COHEN, 234 U.S. 123, 134.  WE THINK THIS
SUFFICIENT HERE TO SATISFY THE STATUTORY REQUIREMENT THAT THE FEDERAL
RIGHT SOUGHT TO BE VINDICATED IN THIS COURT BE ONE CLAIMED BELOW.  28
U.S.C. SEC.  1257(3).  (FN12) 

SECOND.  WE CONCLUDE THAT THE JUDGMENTS OF CONVICTION RENDERED BELOW
VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, WITH AN
EXCEPTION TO BE LATER NOTED.  WE NEED NOT DECIDE WHETHER THERE IS
DEMANDED OF STATE INVESTIGATING BODIES AS EXPLICIT A REJECTION OF A
CLAIMED PRIVILEGE AGAINST SELF-INCRIMINATION AS HAS BEEN HELD TO BE
NECESSARY UNDER THE STATUTE PUNISHING CONTEMPTS OF CONGRESS.  QUINN V.
UNITED STATES, 349 U.S. 155; EMSPAK V. UNITED STATES, 349 U.S. 190,
202; BART V. UNITED STATES, 349 U.S. 219.  NOR NEED WE DECIDE WHETHER
IT WOULD BE A SUFFICIENT BASIS FOR REVERSAL HERE SIMPLY THAT THE
APPELLANTS WERE NOT GIVEN NOTICE OF THE IMMUNITY LAW AT THE INQUIRY,
THOUGH IN ANALOGOUS CONTEXTS WE HAVE INSISTED THAT STATE INVESTIGATORS
MAKE CLEAR TO THOSE BEFORE THEM THE BASIS ON WHICH AN ANSWER IS
REQUIRED.  SCULL V. VIRGINIA, 359 U.S. 344, 353.  THIS CASE IS MORE
THAN THAT; HERE THE CHAIRMAN OF THE COMMISSION, WHO CLEARLY APPEARED TO
BE THE AGENT OF THE STATE IN A POSITION TO GIVE SUCH ASSURANCES,
APPRISED THREE OF THE APPELLANTS THAT THE PRIVILEGE IN FACT EXISTED,
AND BY HIS BEHAVIOR TOWARD THE FOURTH OBVIOUSLY GAVE THE SAME
IMPRESSION.  OTHER MEMBERS OF THE COMMISSION AND ITS COUNSEL MADE
STATEMENTS WHICH WERE TOTALLY INCONSISTENT WITH ANY BELIEF IN THE
APPLICABILITY OF THE IMMUNITY STATUTE, AND IT IS FAIR TO CHARACTERIZE
THE WHOLE CONDUCT OF THE INQUIRY AS TO THE FOUR AS IDENTICAL WITH WHAT
IT WOULD HAVE BEEN IF OHIO HAD HAD NO IMMUNITY STATUTE AT ALL.  YET
HERE THE CRIME SAID TO HAVE BEEN COMMITTED BY THE APPELLANTS, AS
DEFINED BY THE STATE SUPREME COURT, WAS SIMPLY THAT OF DECLINING TO
ANSWER ANY RELEVANT QUESTION ON THE GROUND OF POSSIBLE SELF
INCRIMINATION.  THIS WAS BECAUSE THE COURT HELD THAT THE OHIO IMMUNITY
STATUTE AUTOMATICALLY REMOVED ANY BASIS FOR A VALID CLAIM OF THE
PRIVILEGE, WHICH GENERALLY EXISTS UNDER OHIO LAW.  (FN13)  OHIO CONST.,
ART. I. SEC. 10.  ACCORDINGLY ANY REFUSAL TO ANSWER, BASED ON A CLAIM
OF THE PRIVILEGE, WAS SAID TO CONSTITUTE THE OFFENSE.  WHILE THERE IS
NO SUGGESTION THAT THE COMMISSION HAD ANY INTENT TO DECEIVE THE
APPELLANTS, WE REPEAT THAT TO SUSTAIN THE JUDGMENT OF THE OHIO SUPREME
COURT ON SUCH A BASIS AFTER THE COMMISSION HAD ACTED AS IT DID WOULD BE
TO SANCTION THE MOST INDEFENSIBLE SORT OF ENTRAPMENT BY THE STATE -
CONVICTING A CITIZEN FOR EXERCISING A PRIVILEGE WHICH THE STATE CLEARLY
HAD TOLD HIM WAS AVAILABLE TO HIM.  CF. SORRELLS V. UNITED STATES, 287
U.S. 435, 442.  A STATE MAY NOT ISSUE COMMANDS TO ITS CITIZENS, UNDER
CRIMINAL SANCTIONS, IN LANGUAGE SO VAGUE AND UNDEFINED AS TO AFFORD NO
FAIR WARNING OF WHAT CONDUCT MIGHT TRANSGRESS THEM.  LANZETTA V. NEW
JERSEY, 306 U.S. 451.  INEXPLICABLY CONTRADICTORY COMMANDS IN STATUTES
ORDAINING CRIMINAL PENALTIES HAVE, IN THE SAME FASHION, JUDICIALLY BEEN
DENIED THE FORCE OF CRIMINAL SANCTIONS.  UNITED STATES V. CARDIFF, 344
U.S. 174.  HERE THERE WERE MORE THAN COMMANDS SIMPLY VAGUE OR EVEN
CONTRADICTORY.  THERE WAS ACTIVE MISLEADING.  CF. JOHNSON V. UNITED
STATES, 318 U.S. 189, 197.  THE STATE SUPREME COURT DISMISSED THE
STATEMENTS OF THE COMMISSION AS LEGALLY ERRONEOUS, BUT THE FACT REMAINS
THAT AT THE INQUIRY THEY WERE THE VOICE OF THE STATE MOST PRESENTLY
SPEAKING TO THE APPELLANTS.  (FN14)  WE CANNOT HOLD THAT THE DUE
PROCESS CLAUSE PERMITS CONVICTIONS TO BE OBTAINED UNDER SUCH
CIRCUMSTANCES. 

WE CANNOT REACH A CONTRARY CONCLUSION BY JOINING WITH THE SPECULATION
OF THE COURT BELOW THAT SOME OF APPELLANTS MIGHT HAVE BEHAVED THE SAME
WAY REGARDLESS OF WHAT THE COMMISSION TOLD THEM.  WE THINK IT
IMPERMISSIBLE IN A CRIMINAL CASE TO EXCUSE FATAL DEFECTS BY ASSUMING
THAT A PERSON SUMMONED TO AN INQUIRY, SIMPLY BECAUSE HE EXPRESSES
DEFIANCE BEFOREHAND, WILL CONTINUE TO BE DEFIANT EVEN IF A PROPER
EXPLANATION IS MADE OF WHAT THE INQUIRY WANTS OF HIM AND THE BASIS ON
WHICH IT IS WANTED.  SEE FLAXER V. UNITED STATES, 358 U.S. 147, 151. 
IT IS ALLEGED THAT THE PERSONAL ATTITUDES OF THE APPELLANTS TOWARD THE
COMMISSION WERE DEFECTIVE IN VARIOUS WAYS BUT OF COURSE THE INDICTMENTS
AND CONVICTIONS WERE HAD SIMPLY FOR REFUSING TO ANSWER QUESTIONS. 
NEITHER CAN WE FIND ANY GROUND FOR AFFIRMANCE IN THE FACT THAT CERTAIN
REFUSALS TO ANSWER OCCURRED BEFORE THE CHAIRMAN'S ASSURANCES TO THE
VARIOUS APPELLANTS THAT THE PRIVILEGE EXISTED BECAME EXPLICIT. 
CERTAINLY SUCH ASSURANCES REMOVED ANY REASON FOR THE APPELLANTS TO
RECONSIDER THEIR PRIOR ASSERTIONS OF THE PRIVILEGE.  AND THE POSITIVE
ASSURANCES GIVEN ONLY MADE EXPLICIT AN ATTITUDE THAT THE COMMISSION HAD
MANIFESTED THROUGHOUT ITS INTERVIEWS WITH THESE APPELLANTS.  WE CANNOT
CARVE THE INQUIRY INTO SEGMENTS; THE RECORD DOES NOT SUGGEST ANY
PICTURE OF THE COMMISSION'S NEGATION OF THE PRIVILEGE FOLLOWED BY AN
ACQUIESCENCE IN ITS USE. 

FINALLY, IT IS ARGUED THAT THE CONVICTIONS MAY BE SUPPORTABLE HERE AS
TO THOSE QUESTIONS WHICH AN APPELLANT WAS DIRECTED TO ANSWER AFTER
CLAIMING THE PRIVILEGE.  AS THE STATEMENT OF THE CASE WE HAVE MADE
INDICATES, IT IS NOT SHOWN THAT THERE WAS SUCH A DIRECTION AS TO ANY
QUESTION EXCEPT ONE PUT TO STERN, (FN15) WHICH STANDS AS THE BASIS FOR
THE SOLE COUNT ON WHICH HIS CONVICTION RESTS.  AS TO THE CONVICTION
BASED ON THIS QUESTION, THE COURT IS EQUALLY DIVIDED.  TO FOUR OF US,
THE MATTER IS PLAIN.  UNDER THE CIRCUMSTANCES OF THE INQUIRY, THE
DIRECTION TO ANSWER GIVEN STERN WAS OBVIOUSLY NOT GIVEN BECAUSE OF THE
IMMUNITY STATUTE, BUT BECAUSE THE COMMISSION TOOK THE POSITION THAT A
GENERALLY AVAILABLE PRIVILEGE DID NOT EXIST AS TO A PARTICULAR
QUESTION, SINCE NO ANSWER TO IT COULD POSSIBLY INCRIMINATE.  STERN MADE
HIS DECISION NOT TO ANSWER, IT MUST BE ASSUMED, IN THE LIGHT OF THE
COMMISSION'S ATTITUDE THAT THE PRIVILEGE GENERALLY APPLIED, AND ON THE
BASIS OF HIS OWN DETERMINATION THAT THE ANSWER WOULD TEND TO
INCRIMINATE HIM.  THE OHIO SUPREME COURT HAS NOT DISAGREED WITH HIM ON
THE ISSUE ON WHICH HE WAS DIRECTED TO ANSWER; IT MADE NO FINDING THAT
THE COMMISSION WAS CORRECT ON THE BASIS ON WHICH IT ORDERED THE ANSWER
THAT NO RESPONSE TO THE QUESTION POSSIBLY COULD INCRIMINATE.  (FN16)
FOUR OF US THINK THAT THE SAME AFFRONT TO THE DUE PROCESS CLAUSE AS IS
GENERALLY PRESENTED IN THIS CASE IS PRESENTED BY A JUDGMENT IGNORING
THE GROUNDS ON WHICH THE COMMISSION'S DIRECTION TO ANSWER WAS GIVEN,
AND AFFIRMING THE CONVICTION BY REASON OF AN IMMUNITY STATUTE WHOSE
EXISTENCE THE COMMISSION NEGATED.  TO FOUR OF US, IT IS OBVIOUS THAT
STERN WAS AS MUCH "ENTRAPPED" AS THE OTHERS.  IT IS HARDLY AN ANSWER,
IN OUR VIEW, TO SAY HE WAS DIRECTED TO ANSWER THE QUESTION.  IN EFFECT,
THE COMMISSION SAID TO STERN:  "WE RECOGNIZE YOUR PRIVILEGE AGAINST
SELF-INCRIMINATION IN THIS INQUIRY, BUT YOU MUST TAKE CARE THAT YOU
CLAIM IT ONLY WHERE YOUR ANSWER MIGHT REALLY TEND TO BE INCRIMINATING. 
WE DO NOT SEE HOW SAYING WHERE YOU LIVE MIGHT INCRIMINATE YOU, SO AS TO
THIS QUESTION WE REJECT YOUR CLAIM OF PRIVILEGE AND ORDER YOU TO
ANSWER."  STERN'S REFUSAL TO ANSWER AFTER THE DIRECTION OPENED HIM TO
THE RISK THAT A COURT MIGHT HOLD THAT HE WAS WRONG AND THAT THE
COMMISSION PROPERLY RULED THAT NO ANSWER COULD BE INCRIMINATORY.   BUT
THE OHIO SUPREME COURT HAS NOT HELD THIS; IT HAS NOT HELD THAT STERN'S
DECISION THAT THE ANSWER WOULD TEND TO INCRIMINATE HIM WAS WRONG, BUT
ONLY THAT THE COMMISSION WAS WRONG IN TELLING HIM THAT THE PRIVILEGE
APPLIED AT ALL.  IT MAY HAVE BEEN AT HIS PERIL THAT STERN MADE HIS
DECISION THAT THE ANSWER WAS INCRIMINATORY, BUT FOUR OF US CANNOT SEE
HOW CONSISTENTLY WITH THE DUE PROCESS CLAUSE IT CAN BE SAID THAT HE
THEREBY ALSO ASSUMED THE VERY DIFFERENT PERIL THAT THE BASIC PREMISE OF
WHAT THE COMMISSION WAS TELLING HIM - THAT THE PRIVILEGE EXISTED - WAS
ONE HUNDRED PERCENT IN ERROR.  WE FOUR REGRET THAT OUR BRETHREN REMAIN
UNPERSUADED ON THIS SCORE, AND THAT ACCORDINGLY AS TO STERN THE
JUDGMENT MUST BE AFFIRMED BY AN EQUALLY DIVIDED COURT.  APPEALS
DISMISSED.  ON WRITS OF CERTIORARI, JUDGMENTS REVERSED AS TO RALEY,
BROWN AND MORGAN; JUDGMENT AFFIRMED AS TO STERN BY AN EQUALLY DIVIDED
COURT. 

FN1  THE THREE APPELLANTS IN NO. 175, RALEY, STERN, AND BROWN, WERE
CONVICTED IN A JOINT TRIAL IN A DIFFERENT COMMON PLEAS COURT FROM THE
ONE IN WHICH APPELLANT IN NO. 463, MRS. MORGAN, WAS CONVICTED.  THE
JUDGMENTS AS TO RALEY, STERN, AND BROWN WERE AFFIRMED IN THE COURT OF
APPEALS FOR HAMILTON COUNTY, 100 OHIO APP. 75, 136 N.E.2D 295, AND THAT
OF MRS. MORGAN IN THE COURT OF APPEALS FOR FRANKLIN COUNTY.  THE CASES
WERE DECIDED BY THE OHIO SUPREME COURT IN A SINGLE OPINION, 164 OHIO
ST. 529, 133 N.E.2D 104, WHICH AFFIRMED THE CONVICTIONS. 

RALEY, STERN, AND BROWN WERE CONVICTED UNDER THE THEN APPLICABLE
PROVISIONS OF OHIO GENERAL CODE SEC. 12137, WHICH PROVIDED THAT "A
FAILURE  ...  TO ANSWER AS A WITNESS, WHEN LAWFULLY REQUIRED" MAY BE
PUNISHED "AS  ...  FOR A CONTEMPT."  MRS. MORGAN WAS CONVICTED UNDER
OHIO GENERAL CODE SEC. 12845, WHICH PUNISHED THOSE, SUMMONED BEFORE A
COMMITTE OF THE STATE LEGISLATURE, WHO REFUSE "TO ANSWER A QUESTION
PERTINENT TO THE MATTER UNDER INQUIRY."    FN2  AFTER THE CHAIRMAN'S
INITIAL STATEMENT QUOTED IN THE TEXT, AND SOME EXCHANGE BETWEEN THE
CHAIRMAN AND RALEY'S COUNSEL, THE FOLLOWING OCCURRED: 

"CHAIRMAN RENNER:  I SHOULD LIKE FOR YOU TO CONSULT WITH COUNSEL TO
DETERMINE WHETHER IN HIS OPINION YOU ARE REQUIRED TO ANSWER THE
QUESTION, WHETHER YOU RECOLLECT HAVING HAD SUCH AN INTERVIEW. 

"THE WITNESS:  I HAVE BEEN ADVISED BY COUNSEL THAT THE PRIVILEGE DOES
APPLY, IF I DESIRE TO USE IT. 

"CHAIRMAN RENNER:  COUNSEL (FOR THE COMMISSION) MAY PROCEED." 

WHEREUPON THE NEXT QUESTION WAS PUT.  IN THE OTHER INSTANCE RALEY
APPEARS TO HAVE CONSULTED WITH COUNSEL OF HIS OWN ACCORD: 

"CHAIRMAN RENNER:  MR. RALEY, WOULD YOU EXPLAIN TO THE COMMISSION HOW
YOU COULD INCRIMINATE YOURSELF BY ACKNOWLEDGING THE LOCATION OF THE
HEADQUARTERS OF LOCAL 766 ON THAT DATE? 

"THE WITNESS:  I DON'T BELIEVE, MR. CHAIRMAN, THAT I HAVE TO GIVE A
REASON FOR ASSERTING THE PRIVILEGES OF THE CONSTITUTION, SO MY ANSWER
WOULD BE THE SAME TO THAT THAT I GAVE MR. ISAACS.  (THE COMMISSION
COUNSEL.)  I WILL ASSERT MY PRIVILEGES. 

"CHAIRMAN RENNER:  I NEVERTHELESS REQUEST AN ANSWER. 

"THE WITNESS:  JUST A SECOND WHILE I CONFER WITH COUNSEL. 

"MR. BERGER (RALEY'S COUNSEL):  I WOULD LIKE TO HEAR THE QUESTION
READ. 

"CHAIRMAN RENNER:  READ THE QUESTION, PLEASE. 

"(SEVERAL QUESTIONS AND ANSWERS READ BY THE REPORTER.) 

"MR. BERGER:  THAT IS WHAT I THOUGHT. 

"(THE WITNESS CONFERRED WITH COUNSEL.) 

"THE WITNESS:  I THINK I WAS CORRECT IN VIEW OF THE LINE OF QUESTIONS
THAT I HAVE TO ASSERT MY PRIVILEGES UNDER THE CONSTITUTION. 

"CHAIRMAN RENNER; COUNSEL WILL PROCEED." 

AND AGAIN THE NEXT QUESTION WAS FORTHWITH PUT. 

FN3  "CHAIRMAN RENNER:  COUNSEL, JUST A MOMENT.  WHEN YOU SAY YOU
CLAIM THE PRIVILEGE, YOU CLAIM THE PRIVILEGE OF NOT REPLYING BY REASON
OF THE FACT THAT YOUR ANSWER MIGHT TEND TO INCRIMINATE YOU? 

"THE WITNESS:  I CLAIM THE PRIVILEGE OF NOT ANSWERING UNDER THE FIFTH
AMENDMENT OF THE UNITED STATES CONSTITUTION, AND SECTION 1, ARTICLE 10
OF THE OHIO CONSTITUTION, AS I UNDERSTAND THEM. 

"CHAIRMAN RENNER:  I DO NOT INSIST THAT YOU RECITE IN FULL THE
PRECISE ARTICLE OR SECTION OF THE BILL OF RIGHTS OF THE STATE OF OHIO,
OR THE FEDERAL CONSTITUTION, BUT IN YOUR REPLY, IF YOU ARE RESORTING TO
THOSE SECTIONS, MAKE IT CLEAR THAT YOU ARE RESORTING TO THOSE SECTIONS,
OR LET US HAVE AN UNDERSTANDING THAT WHEN YOU SAY, 'THE SAME ANSWER,'
THAT THAT IS WHAT IT MEANS. 

"THE WITNESS:  IT MEANS THAT I CLAIM THE PRIVILEGE OF THE FIFTH
AMENDMENT, OF THE UNITED STATES CONSTITUTION, AND ARTICLE 1, SECTION 10
OF THE OHIO CONSTITUTION, AS I UNDERSTAND THEM. 

"CHAIRMAN RENNER:  AND WHEN YOU SAY, 'I CLAIM THE PRIVILEGE,' THAT IS
WHAT YOU MEAN IN FULL; IS THAT CORRECT? 

"THE WITNESS:  THAT IS CORRECT." 

FN4  ONE SUCH EXCHANGE WAS AS FOLLOWS: 

"CHAIRMAN RENNER:  THE CHAIR WILL ASK THE WITNESS TO ANSWER THE
QUESTION THAT HAS BEEN PLACED BY COUNSEL.  IT IS TO BE PRESUMED THAT
THE WITNESS IS EXCUSED FROM ANSWERING THE PREVIOUS QUESTION.  WE ARE
TRYING TO MAKE IT EASIER FOR YOU, MR. STERN. 

"THE WITNESS:  I PLEAD THE PRIVILEGE. 

"BY MR. ISAACS: 

"Q.  I TAKE IT YOU ARE NOT MAKING THE DENIAL THAT YOU STARTED TO MAKE
BEFORE? 

"A.  I INVOKE THE PRIVILEGE." 

WHEREUPON THE NEXT QUESTION WAS PUT. 

FN5  "CHAIRMAN RENNER:  WHAT DO YOU MEAN WHEN YOU SAY 'THE ANSWER IS
THE SAME'? 

"THE WITNESS:  I MEAN WHEN I SAY 'THE ANSWER IS THE SAME,' THE
PRECEDING QUESTION THAT WAS ASKED ME, LINKING UP WITH THE NEXT QUESTION
THAT IS ASKED ME, I ANSWERED THE FIRST QUESTION.  I SAID I INVOKED THE
FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION. 

"CHAIRMAN RENNER:  YOU MEAN YOU REFUSE TO ANSWER? 

"THE WITNESS:  I DID NOT SAY I REFUSE.  I DIDN'T REFUSE AND I DON'T
KNOW WHAT YOU MEAN.  I SAID, 'INVOKED.'  DO YOU KNOW WHAT THE WORD
'INVOKED' MEANS? 

"CHAIRMAN RENNER:  DO YOU REFUSE TO ANSWER? 

"THE WITNESS:  THE ANSWER IS THE SAME." 

LATER, THE CHAIRMAN TRIED AGAIN: 

"CHAIRMAN RENNER:  EACH TIME YOU HAVE REPLIED BY SAYING, 'THE ANSWER
IS THE SAME,' THAT FULL EXPLANATION THAT YOU HAVE GIVEN, IS THAT WHAT
YOU MEAN; IS THAT CORRECT? 

"THE WITNESS:  I UNDERSTAND THIS AMENDMENT TO MEAN THAT I CAN'T BE
FORCED TO TESTIFY AGAINST MYSELF. 

"CHAIRMAN RENNER:  AND EACH TIME THAT YOU SAY THE ANSWER IS THE SAME,
YOU MEAN TO INVOKE THAT RIGHT; IS THAT CORRECT? 

"THE WITNESS:  WHEN A QUESTION IS PROJECTED TO ME  ...  . 

"CHAIRMAN RENNER:  WILL YOU ANSWER MY QUESTION? 

"THE WITNESS: BY YOU, I WILL ANSWER THAT QUESTION ON THE BASIS OF
THAT QUESTION THAT IS PROJECTED AT THAT TIME  ...  . 

"CHAIRMAN RENNER:  I AM SIMPLY TRYING TO CLARIFY FOR THE RECORD WHAT
YOU MEAN EACH TIME YOU SAY, 'THE ANSWER IS THE SAME.'" 

ON ANOTHER OCCASION, THE CHAIRMAN HAD THE MATTER CLEARED UP, AT LEAST
FOR A WHILE: 

"CHAIRMAN RENNER:  WHAT DO YOU MEAN, 'THE ANSWER IS THE SAME'? 

"THE WITNESS:  IN REGARD TO THAT QUESTION, IN THE MANNER IN WHICH
THAT QUESTION WAS PHRASED, I AGAIN INVOKE - SEE - THE FIFTH AMENDMENT
OF THE CONSTITUTION OF THE UNITED STATES, SEE?  DO YOU UNDERSTAND WHAT
THAT MEANS? 

"CHAIRMAN RENNER:  THAT IS WHAT I WANTED." 

FN6  THE FOLLOWING IS ILLUSTRATIVE: 

"Q.  I ASK YOU IF IT IS NOT A FACT THAT IN FEBRUARY OF 1950, YOU
CAUSED TO BE DISTRIBUTED A LEAFLET STATED TO BE ISSUED BY THE WORKERS
CLUB, EMMETT C. BROWN, CHAIRMAN, 1064 FLINT STREET? 

"A.  IS THAT A FACT? 

"Q.  I AM ASKING YOU TO AFFIRM OR DENY THAT FACT. 

"A.  IF YOU KNOW IT, WHY ASK ME TO AFFIRM? 

"CHAIRMAN RENNER:  ANSWER THE QUESTION, MR. BROWN. 

"THE WITNESS:  I INVOKE THE PRIVILEGES OF THE FIFTH AMENDMENT." 

WHEREUPON THE NEXT QUESTION WAS ASKED. 

FN7  SIXTEEN AGAINST RALEY, TWO AGAINST STERN, FOUR AGAINST BROWN. 
THESE WERE MINOR FRACTIONS OF THE NUMBERS OF QUESTIONS PUT THEM TO
WHICH THE PRIVILEGE WAS PLEADED. 

FN8  THE ONLY OMISSIONS APPEAR TO BE IN REGARD TO SEVERAL PLEAS OF
SELF-INCRIMINATION MADE BY MRS. MORGAN, WHEN, IN HANDING A STATEMENT TO
THE COMMISSION FOR THE RECORD, SHE WAS ASKED WHETHER IT WAS HER
STATEMENT. 

FN9  THE STATE DID NOT APPEAL THE REVERSALS. 

FN10  "IF CONSIDERATION OF THE QUESTION OF JURISDICTION IS POSTPONED,
COUNSEL SHOULD ADDRESS THEMSELVES, AT THE OUTSET OF THEIR BRIEFS AND
ORAL ARGUMENT, TO THE QUESTION OF JURISDICTION." 

FN11  SAID THE COURT:  "IT IS ARGUED ALSO THAT THE QUINN CASE, SUPRA,
(QUINN V. UNITED STATES, 349 U.S. 155) IS, IN EFFECT, A MANDATE BY THE
SUPREME COURT OF THE UNITED STATES TO ALL LEGISLATIVE BODIES, BOTH
NATIONAL AND STATE, THAT THEY MUST SPECIFICALLY DIRECT A WITNESS TO
ANSWER BEFORE HE MAY BE CITED FOR CONTEMPT, AND A DIRECTIVE TO ALL
JUDICIAL TRIBUNALS IN THE NATION THAT SUCH MUST BE THE CASE BEFORE A
WITNESS MAY BE CONVICTED OF CONTEMPT."  164 OHIO ST., AT 545, 133
N.E.2D, AT 115.  CLEARLY THIS WAS A DISCUSSION OF WHETHER THE THEORY OF
THE QUINN CASE, THAT A WITNESS MUST BE APPRISED OF THE REJECTION OF THE
PRIVILEGE, WAS BINDING ON THE STATES AS A MATTER OF THE FEDERAL
CONSTITUTION. 

FN12  IT IS TRUE THAT THE ASSERTION OF VIOLATION OF FEDERAL RIGHTS
THROUGH THE LACK OF A DIRECTION TO ANSWER, PASSED ON BELOW, DOES NOT
PRECISELY MATCH THE DISPOSITIVE GROUND OF THE CASE, THAT IS, NOT MERELY
THE ABSENCE OF A DIRECTION TO ANSWER ON THE PART OF THE COMMISSION, BUT
THE POSITIVE ASSURANCES THAT THE PRIVILEGE WAS AVAILABLE.  BUT THIS IS
REALLY ONLY A VARIATION OF THE FORMER THEME, PUT INTO SHARPER FOCUS BY
THE STATE SUPREME COURT'S THEORY OF DECISION.  SEE DEWEY V. DES MOINES,
173 U.S. 193, 198.  THE CLAIM MADE AND PASSED ON WAS, IN ESSENCE, LACK
OF KNOWLEDGE BY THE APPELLANTS, BECAUSE OF THE COMMISSION'S ACTIONS,
THAT THEY WERE BEING CONSIDERED AS UNLAWFULLY REFUSING TO ANSWER THE
QUESTIONS.  THE SUPREME COURT'S CONCLUSION ADDED MORE TO FORCE TO THE
CONTENTION BUT DID NOT CHANGE ITS NATURE. 

FN13  ACCORDINGLY, THE APPLICABILITY OF TWINING V. NEW JERSEY, 211
U.S. 78, TO THE PRESENT CASE NEED NOT BE DISCUSSED. 

FN14  THE STATE SUPREME COURT RELIED ON SINCLAIR V. UNITED STATES,
279 U.S. 263, 299, IN SUPPORT OF ITS HOLDING.  SINCLAIR DEALT WITH A
WITNESS AT AN INVESTIGATION WHO REFUSED TO ANSWER QUESTIONS BY REASON
OF A LEGAL THEORY HE ENTERTAINED, WHERE THE COMMITTEE REJECTED HIS
LEGAL THEORY EXPLICITLY AND ORDERED HIM TO ANSWER.  HE REFUSED AND WAS
CONVICTED.  THE COURT FOUND HIS LEGAL THEORY IN ERROR, AND HELD THAT
UNDER THE CIRCUMSTANCES THE ENTERTAINING OF THIS ERRONEOUS LEGAL THEORY
IN GOOD FAITH WAS NO DEFENSE TO THE WITNESS.  THAT SINCLAIR IS WHOLLY
INAPPOSITE HERE REQUIRES NO FURTHER STATEMENT. 

FN15  IT IS SUGGESTED THAT BROWN DECLINED TO ANSWER ONE QUESTION
OTHER THAN ON GROUNDS OF SELF-INCRIMINATION.  NO SUCH FINDING WAS MADE
BY THE OHIO SUPREME COURT, WHICH TREATED THE ENTIRE CASE AS INVOLVING
PLEAS OF SELF-INCRIMINATION; ACCORDINGLY, SO DO WE.  NO DIRECTION TO
ANSWER AS TO THIS QUESTION WAS GIVEN BY THE COMMISSION.  IT MAY BE WELL
TO QUOTE THE ENTIRE CONTEXT: 

"Q.  AND WHAT HAS BEEN YOUR EDUCATIONAL BACKGROUND? 

"A.  I REFUSE TO ANSWER THAT QUESTION.  I INVOKE MY RIGHTS AND
PRIVILEGES UNDER THE FIFTH AMENDMENT. 

"Q.  IS THERE SOME PARTICULAR ILLEGAL INSTITUTION WHICH YOU ATTENDED
OR SOME COMMUNIST PARTY SCHOOL THAT YOU ATTENDED THAT MAKES YOU
HESITATE TO REVEAL WHERE YOU WERE EDUCATED? 

"A.  NO, I JUST DON'T THINK IT IS YOUR BUSINESS. 

"CHAIRMAN RENNER:  WE WILL DETERMINE THAT, MR. BROWN. 

"BY MR. ISAACS: 

"Q.  DO I UNDERSTAND, FOR THE RECORD, YOU ARE REFUSING TO ANSWER THE
QUESTION BECAUSE YOU FEEL IT IS NOT OUR BUSINESS? 

"A.  THE ANSWER IS THE SAME. 

"MR. ISAACS:  MAY THE RECORD SHOW THAT, PLEASE. 

"Q.  (GOING ON TO THE NEXT QUESTION) WHAT HAS BEEN YOUR EMPLOYMENT
RECORD IN RECENT YEARS, MR. BROWN?" 

FN16  WHILE ONE OF THE OHIO COURTS OF APPEALS PUT ITS AFFIRMANCE OF
SOME OF THE COUNTS ON THIS BASIS, THE ISSUE WHETHER ANY PARTICULAR
QUESTIONS WERE FREE OF THE POSSIBILITY OF AN INCRIMINATING ANSWER WAS
NOT CONSIDERED BY THE OHIO SUPREME COURT, AND WAS IN FACT IRRELEVANT TO
THE COURT, UNDER THE VIEW IT TOOK OF THE CASE.  WE REVIEW ITS JUDGMENT
HERE, AND IT IS BASIC THAT AFTER FINDING CONSTITUTIONAL ERROR IN A
STATE COURT JUDGMENT WE CANNOT AFFIRM IT HERE BY POSTULATING SOME
GROUND OF STATE LAW NOT RELIED ON BELOW.  MURDOCK V. MEMPHIS, 20 WALL. 
590, 636, PROPOSITION 7; CF. BI-METALLIC INVESTMENT CO. V. STATE BOARD
OF EQUALIZATION, 239 U.S. 441, 444. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
HARLAN AND MR. JUSTICE WHITTAKER JOIN. 

WE THINK THE CONVICTION OF STERN MUST BE AFFIRMED.  LIKE OUR BRETHREN
WHO WOULD REVERSE AS TO HIM WE, TOO, AGREE WITH JUDGE STEWART, OF
OHIO'S SUPREME COURT.  BUT, AS WE READ HIS OPINION, HE SWEPT WITH A
WHISK BROOM NOT A CARPET SWEEPER.  OUR BROTHERS TAKE TOO BROAD A
SWATH. 

JUDGE STEWART SAID THAT SINCE OHIO'S COMMISSION ADVISED APPELLANTS
THAT THEY HAD A RIGHT TO REFUSE TO ANSWER QUESTIONS WHICH MIGHT
INCRIMINATE THEM, "THEY COULD NOT POSSIBLY IN FOLLOWING ADMONITION OF
THE COMMISSION BE IN CONTEMPT OF IT" IN REFUSING TO ANSWER ANY SUCH
QUERIES.  BROTHER BRENNAN'S OPINION CHARACTERIZES THE ACTION OF THE
COMMISSION AS AN "INDEFENSIBLE SORT OF ENTRAPMENT  ... CONVICTING A
CITIZEN FOR EXERCISING A PRIVILEGE WHICH THE STATE CLEARLY HAD TOLD HIM
WAS AVAILABLE TO HIM."  WE AGREE THAT SUCH WAS TRUE AS TO THREE OF
THESE APPELLANTS, AND THEREFORE CONCUR IN THE OPINION AS TO BROWN,
RALEY AND MORGAN.  BUT, AS JUDGE STEWART WENT ON TO POINT OUT, THE
RECORD CLEARLY SHOWS THAT STERN WAS NOT SO ENTRAPPED.  (FN1) 

STERN WAS CONVICTED FOR REFUSAL TO ANSWER THE QUESTION, "WHERE DO YOU
RESIDE, MR. STERN?"  THE CHAIRMAN REFUSED TO ACCEPT STERN'S PLEA OF THE
PRIVILEGE (FN2) AND TWICE UNEQUIVOCALLY DIRECTED HIM TO ANSWER THE
QUESTION.  STERN PERSISTED IN HIS REFUSAL.  THE DUE PROCESS GROUND USED
IN OUR BROTHER BRENNAN'S OPINION TO INVALIDATE THE CONVICTIONS OF
BROWN, RALEY AND MORGAN IS, THEREFORE, NOT PRESENT AS TO STERN.  THERE
WAS NO "ENTRAPMENT" IN THE ABOVE QUESTION UPON WHICH HE WAS CONVICTED,
SINCE IT WAS MADE CLEAR, EVEN WITHOUT REFERENCE TO THE OHIO IMMUNITY
STATUTE, THAT AS TO THAT QUESTION THE PRIVILEGE WAS NOT AVAILABLE.  THE
REASON GIVEN BY THE COMMISSION, EXCEPT WHERE BAD FAITH IS NECESSARY
WHICH IS NOT TRUE HERE, (FN3) IS IRRELEVANT.  THE TEST IS WHETHER THE
WITNESS WAS COMMANDED TO ANSWER REGARDLESS.  NEITHER MORGAN NOR RALEY
WAS SO DIRECTED, BUT STERN WAS CATEGORICALLY INSTRUCTED TO DO SO.
(FN4) 

ADMITTING THAT THE DIRECTION TO ANSWER WAS "OBVIOUSLY  ...  GIVEN
BECAUSE THE COMMISSION TOOK THE POSITION THAT A GENERALLY AVAILABLE
PRIVILEGE DID NOT EXIST," FOUR MEMBERS OF THE COURT STILL REFUSE TO
AFFIRM AS TO STERN BECAUSE THE STATE SUPREME COURT DID NOT GO ON THAT
GROUND.  BUT THEY OVERLOOK THE SWEEP OF THEIR OWN OPINION.  IT IS THE
FEDERAL DUE PROCESS CLAUSE THAT IS BEING APPLIED AND THE COURT MUST
TAKE THE FACTS AS SHOWN BY THE RECORD.  IT CLEARLY SHOWS THAT STERN WAS
NOT ENTRAPPED BY THE STATEMENTS OF THE CHAIRMAN AS TO THE AVAILABILITY
OF THE PRIVILEGE FOR THE QUESTION FORMING THE BASIS OF THE ONLY COUNT
OF THE INDICTMENT BEFORE US.  UNLIKE THE OTHERS, HE WAS SPECIFICALLY
ORDERED TO ANSWER.  IN THIS POSTURE OF THE FACTS THERE COULD BE NO
ENTRAPMENT AND HENCE NO LACK OF DUE PROCESS.  WE WOULD THEREFORE AFFIRM
AS TO STERN. 

FN1  JUDGE STEWART SAID THAT THE WITNESSES COULD NOT HAVE BEEN IN
CONTEMPT "EXCEPT AS TO THE FEW QUESTIONS WHICH TWO OF THEM WERE
DIRECTED TO ANSWER."  164 OHIO ST., AT 564, 133 N.E.2D, AT 126.  THE
SECOND WITNESS WHOM JUDGE STEWART HAD IN MIND WOULD SEEM FROM THE
RECORD BEFORE US TO BE BROWN.  THE FIRST COUNT OF BROWN'S INDICTMENT
WAS BASED ON A REFUSAL TO ANSWER THE QUESTION," AND WHAT HAS BEEN YOUR
EDUCATIONAL BACKGROUND?"  AFTER PLEADING THE PRIVILEGE, BROWN WAS
PRESSED FOR AN EXPLANATION AS TO WHY HIS ANSWER WOULD BE
INCRIMINATING.  BROWN RESPONDED "I JUST DON'T THINK IT IS YOUR
BUSINESS."  WHEN PRESSED FURTHER, BROWN REVERTED TO THE PRIVILEGE.  ON
THE RECORD HERE, WE FIND NO SPECIFIC DIRECTION TO BROWN TO ANSWER, AND
THUS WE MUST CONCUR IN THE REVERSAL OF BROWN'S CONVICTION.  THE
QUESTION OF THE SUFFICIENCY OF THE PLEA WILL, OF COURSE, BE OPEN ON
REMAND.    FN2  THE PERTINENT COLLOQUY FOLLOWING STERN'S REFUSAL TO
ANSWER WAS AS FOLLOWS:    "Q.  WHAT IS THERE IN EITHER OF THOSE
CONSTITUTIONS (OHIO AND FEDERAL) THAT PERMITS A WITNESS TO REFUSE TO
STATE WHERE HE RESIDES? 

"A.  I CLAIM THE PRIVILEGE UNDER THE FIFTH AMENDMENT OF THE UNITED
STATES CONSTITUTION, AND SECTION 1, ARTICLE 10 OF THE OHIO
CONSTITUTION. 

"Q.  IS THERE SOMETHING ABOUT THE NATURE OR CHARACTER OF THE HOME IN
WHICH YOU LIVE THAT TO ADMIT YOU LIVE THERE WOULD MAKE YOU SUBJECT TO
CRIMINAL PROSECUTION? 

"A.  THE SAME ANSWER. 

"CHAIRMAN RENNER:  THE CHAIR WILL REQUEST THAT THE WITNESS ANSWER THE
QUESTION. 

"THE WITNESS:  I HAVE ANSWERED THE QUESTION. 

"MR. ISAACS (THE COMMISSION'S COUNSEL):  MR. CHAIRMAN, I ASK THAT THE
WITNESS BE ORDERED AND DIRECTED TO ANSWER THE QUESTION. 

"CHAIRMAN RENNER:  THE CHAIRMAN DIRECTS THE WITNESS TO ANSWER THE
QUESTION RELATING TO HIS ADDRESS, THE ADDRESS OF HIS RESIDENCE IN
CINCINNATI. 

"THE WITNESS:  THE SAME ANSWER. 

*         *         *         *         * 

"Q.  (BY MR. ISAACS):  AS A MATTER OF FACT, MR. STERN, YOU RESIDE AT
3595 WILSON AVENUE IN THE CITY OF CINCINNATI, OHIO; IS THAT NOT
CORRECT? 

"A.  THE SAME ANSWER." 

FN3  UNDER OHIO LAW AS ANNOUNCED IN THE OPINION BELOW IT IS NOT
NECESSARY TO SHOW A "WILLFUL" OR "DELIBERATE" REFUSAL TO ANSWER.  164
OHIO ST., AT 543, 133 N.E.2D, AT 114. 

FN4  AS TO BROWN, SEE NOTE 1, SUPRA.
..END :

















COMMISSIONER OF INTERNAL REVENUE V. HANSEN 360 U.S. 446 


NO. 380.  ARGUED APRIL 29-30, 1959.  - DECIDED JUNE 22, 1959.* - 258
F.2D 585 AND 253 F.2D 735, REVERSED.  - 256 F.2D 918, AFFIRMED. 

*TOGETHER WITH NO. 381, COMMISSIONER OF INTERNAL REVENUE V. GLOVER,
ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT, ARGUED APRIL 29-30, 1959; AND NO. 512, BAIRD ET UX. V.
COMMISSION OF INTERNAL REVENUE, ON CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT, ARGUED APRIL 30, 1959. 


THE TAXPAYERS HERE INVOLVED ARE TWO RETAIL AUTOMOBILE DEALERS AND A
HOUSE TRAILER DEALER WHO KEEP THEIR BOOKS AND MAKE THEIR INCOME TAX
RETURNS ON THE ACCRUAL BASIS.  OBLIGATIONS OF PURCHASERS FOR DEFERRED
PAYMENTS ON INSTALMENT SALES ARE DISCOUNTED OR SOLD BY THEM TO FINANCE
COMPANIES, WHICH PAY THE DEALERS MOST OF THE AMOUNTS IN CASH BUT CREDIT
TO EACH DEALER IN A "RESERVE ACCOUNT" A SMALL PERCENTAGE THEREOF, WHICH
IS RETAINED BY THE FINANCE COMPANY TO SECURE PERFORMANCE OF THE
DEALER'S OBLIGATIONS UNDER HIS GUARANTIES OR ENDORSEMENTS.  HELD:  THE
AMOUNTS THUS CREDITED TO THE DEALERS IN "RESERVE ACCOUNTS" ON THE BOOKS
OF THE FINANCE COMPANIES MUST BE REPORTED AS INCOME ACCRUED DURING THE
TAX YEARS IN WHICH THEY ARE CREDITED TO SUCH RESERVE ACCOUNTS.  PP. 447
469. 

(A)  THE RETAINED PERCENTAGES OF THE PURCHASE PRICE OF THE
INSTALLMENT PAPER, FROM THE TIME THEY ARE ENTERED ON THE BOOKS OF THE
FINANCE COMPANIES AS LIABILITIES TO THE RESPECTIVE DEALERS, WERE VESTED
IN AND BELONGED TO THE RESPECTIVE DEALERS, SUBJECT ONLY TO THEIR
PLEDGES THEREOF TO THE RESPECTIVE FINANCE COMPANIES AS COLLATERAL
SECURITY FOR THE PAYMENT OF THEIR THEN CONTINGENT LIABILITIES TO THE
FINANCE COMPANIES.  PP. 460-463. 

(B)  THE PERCENTAGES OF THE PURCHASE PRICE OF THE INSTALMENT PAPER
THAT WERE WITHHELD BY THE FINANCE COMPANIES CONSTITUTED ACCRUED INCOME
TO THESE DEALERS AT THE TIME THE WITHHELD AMOUNTS WERE ENTERED ON THE
BOOKS OF THE FINANCE COMPANIES AS LIABILITIES TO THE DEALERS, FOR AT
THAT TIME THE DEALERS ACQUIRED A FIXED RIGHT TO RECEIVE THE AMOUNTS SO
RETAINED BY THE FINANCE COMPANIES.  PP. 463-466. 

(C)  THAT THIS HOLDING WILL REQUIRE TAXPAYERS TO PAY TAXES UPON FUNDS
WHICH ARE NOT AVAILABLE TO THEM FOR THAT PURPOSE IS BUT A NORMAL RESULT
OF THE ACCRUAL BASIS OF ACCOUNTING.  PP. 466-467. 

(D)  THE RESPECTIVE TAXPAYERS HERE INVOLVED HAVE WHOLLY FAILED TO
SUSTAIN THE BURDEN OF SHOWING THAT ANY PART OF THE AMOUNTS CREDITED TO
THEM ON THE BOOKS OF THE FINANCE COMPANIES WAS ENTITLED TO SPECIAL
TREATMENT.  PP. 468-469. 

COMMISSIONER OF INTERNAL REVENUE V. HANSEN ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THESE FEDERAL INCOME TAX CASES PRESENT QUESTIONS CONCERNING THE
PROPER AND TIMELY ACCRUAL OF GROSS INCOME DERIVING FROM SALES OF
COMMERCIAL INSTALLMENT PAPER BY RETAIL DEALERS TO FINANCE COMPANIES. 
THE TAXPAYERS INVOLVED IN THESE CASES ARE TWO RETAIL AUTOMOBILE DEALERS
AND A HOUSE TRAILER DEALER.  ALL KEEP THEIR BOOKS ON THE ACCRUAL
BASIS.  MOST OF THEIR SALES ARE "CREDIT SALES."  IT APPEARS THAT THEY
GENERALLY NEGOTIATE, CONSUMMATE, AND FINANCE SUCH SALES IN ACCORDANCE
WITH A COMMON PATTERN.  THE DEALER AND HIS CUSTOMER AGREE UPON A "CASH
DELIVERED PRICE" FOR A PARTICULAR VEHICLE OWNED BY THE DEALER.  IN PART
PAYMENT OF THAT PRICE THE CUSTOMER MAKES A DOWN PAYMENT TO THE DEALER
IN CASH OR "TRADE IN," OR BOTH.  TO THE REMAINING BALANCE OF THAT CASH
PRICE THERE IS ADDED THE COST OF INSURANCE ON THE VEHICLE AND A
"FINANCE CHARGE."  THE AGGREGATE IS SOMETIMES CALLED THE "DEFERRED
BALANCE."  IT IS EVIDENCED AND SECURED BY AN ASSIGNABLE OR NEGOTIABLE
INSTRUMENT RETAINING DEFEASIBLE TITLE TO OR A LIEN ON THE VEHICLE -
GENERALLY ON A FORM SUPPLIED BY THE FINANCE COMPANY WITH WHICH THE
DEALER MAY THEN BE DOING BUSINESS - AND THE INSTRUMENT IS SIGNED BY THE
CUSTOMER, DELIVERED TO THE DEALER, AND MADE PAYABLE TO HIM IN MONTHLY
INSTALLMENTS OVER AN AGREED PERIOD - ONE TO THREE YEARS ON AUTOMOBILES
AND THREE TO FIVE YEARS ON HOUSE TRAILERS.  THEREUPON, THE DEALER
DELIVERS THE VEHICLE TO HIS CUSTOMER, WITH SUCH MEMORANDA OR BILL OF
SALE AS WILL ENABLE HIM TO REGISTER, LICENSE AND USE IT. 

SOON AFTER COMPLETION OF THESE PROCEDURES, THESE DEALERS SELL
(DISCOUNT) THOSE INSTRUMENTS (HEREAFTER CALLED "INSTALLMENT PAPER") TO
FINANCE COMPANIES FOR AN AGREED OR FORMULA FIXED PRICE, AND THE DEALERS
GUARANTEE PAYMENT, IN WHOLE OR IN PART, OF THE INSTALLMENT PAPER. 

UNDER CONTRACTS BETWEEN THE RESPECTIVE DEALERS AND FINANCE COMPANIES
HERE CONCERNED, THE LATTER, UPON RECEIPT AND ACCEPTANCE OF INSTALLMENT
PAPER, ARE OBLIGATED TO PAY IMMEDIATELY TO THE DEALERS A MAJOR
PERCENTAGE OF THE PURCHASE PRICE, BUT THEY ARE THEREBY ALSO AUTHORIZED
TO RETAIN THE REMAINING PERCENTAGE OF THE PRICE AND TO CREDIT IT ON
THEIR BOOKS TO A "DEALERS RESERVE ACCOUNT" IN THE NAME OF THE
PARTICULAR DEALER, FOR THE PURPOSE OF SECURING PERFORMANCE BY HIM OF
HIS GUARANTOR, ENDORSER, AND OTHER LIABILITIES TO THE FINANCE COMPANY. 

THE DEALERS INVOLVED IN THESE CASES RECORDED ON THEIR BOOKS IN THE
YEARS THE INSTALLMENT PAPER WAS SOLD, AND INCLUDED IN THEIR INCOME TAX
RETURNS FOR THOSE YEARS, THE CASH RECEIVED FROM THE FINANCE COMPANIES,
BUT THEY DID NOT ACCRUE ON THEIR BOOKS OR INCLUDE IN THEIR RETURNS THE
PERCENTAGE OF THE PRICE THAT WAS RETAINED BY THE FINANCE COMPANIES AND
CREDITED TO THEIR RESERVE ACCOUNTS. 

THE COMMISSIONER CONTENDS THAT IN THE YEAR OF THEIR SALES OF
INSTALLMENT PAPER TO THE FINANCE COMPANIES, THE TAXPAYERS ACQUIRED A
FIXED RIGHT TO RECEIVE - EVEN THOUGH NOT UNTIL A LATER YEAR - THE
PERCENTAGE OF THE PURCHASE MONEY THAT WAS RETAINED BY THE FINANCE
COMPANIES AND CREDITED ON THEIR BOOKS TO THE DEALERS' RESERVE ACCOUNTS
IN THAT YEAR, AND, HENCE, THOSE AMOUNTS CONSTITUTED ACCRUED INCOME TO
THE TAXPAYERS IN THAT YEAR, AND SHOULD HAVE BEEN ACCRUED ON THEIR BOOKS
AND INCLUDED IN THEIR RETURNS FOR THAT YEAR.  THE TAXPAYERS, ON THE
OTHER HAND, CONTEND THAT THE AMOUNTS SO RETAINED AND CREDITED WERE
NEVER UNDER OR SUBJECT TO THEIR CONTROL, AND WERE ALWAYS SUBJECT TO
SUCH CONTINGENT LIABILITIES OF THE TAXPAYERS TO THE FINANCE COMPANIES
THAT IT COULD NOT HAVE BEEN KNOWN, IN THE YEAR OF THE SALES, HOW MUCH,
IF ANY, OF THE RESERVES WOULD ACTUALLY BE RECEIVED BY THEM IN CASH, AND
HENCE THEY DID NOT ACQUIRE, IN THE YEAR OF ANY OF THE SALES, A FIXED
RIGHT TO RECEIVE - IN A LATER YEAR OR AT ANY TIME - THE AMOUNTS
CREDITED TO THEM IN THE RESERVES, AND, THEREFORE, THE RESERVES DID NOT
CONSTITUTE ACCRUED INCOME TO THEM.  THIS PRESENTS, IN ESSENCE, THE
ISSUE FOR DECISION IN THESE CASES. 

ON THE GROUNDS STATED, THE COMMISSIONER PROPOSED ASSESSMENT OF INCOME
TAX DEFICIENCIES FOR CERTAIN YEARS AGAINST THE RESPECTIVE TAXPAYERS
HERE INVOLVED.  THE TAXPAYERS EACH PETITIONED THE TAX COURT FOR A
REDETERMINATION.  AFTER HEARINGS, THE TAX COURT SUSTAINED THE
COMMISSIONER IN EACH CASE.  THE TAXPAYERS PETITIONED FOR REVIEW.  IN
NO. 380, THE HANSEN CASE, THE NINTH CIRCUIT REVERSED, 258 F.2D 585; IN
NO. 381, THE GLOVER CASE, THE EIGHTH CIRCUIT REVERSED, 253 F.2D 735;
AND IN NO. 512, THE BAIRD CASE, THE SEVENTH CIRCUIT AFFIRMED, 256 F.2D
918.  BECAUSE OF AN ASSERTED CONFLICT BETWEEN THOSE CIRCUITS IN THESE
CASES, AND BETWEEN OTHER CIRCUITS ON THE QUESTION INVOLVED, (FN1) AND
BECAUSE OF THE IMPORTANCE OF THE QUESTION TO THE PROPER ADMINISTRATION
OF THE REVENUE LAWS, WE GRANTED CERTIORARI IN ALL THREE CASES. 

INASMUCH AS THESE CASES TURN ON THE SAME ISSUE, AND THE HANSEN AND
GLOVER CASES WERE CONSOLIDATED FOR ARGUMENT AND ARGUED TOGETHER IN THIS
COURT, AND THE BAIRD CASE WAS ARGUED IMMEDIATELY FOLLOWING, IT WILL BE
CONVENIENT TO DECIDE THE THREE CASES IN ONE OPINION.  ALTHOUGH THE
RELEVANT FACTS IN THE THREE CASES ARE VERY SIMILAR AND FOLLOW THE
PATTERN JUST EXPLAINED, THERE ARE VARIATIONS WHICH WE THINK SHOULD BE
SET FORTH. 

RESPONDENTS IN NO. 380, JOHN R. HANSEN AND SHIRLEY G. HANSEN, ARE
HUSBAND AND WIFE AND FILED JOINT FEDERAL INCOME TAX RETURNS FOR THE
TAXABLE YEARS 1951, 1952 AND 1953 HERE INVOLVED.  DURING THOSE YEARS,
JOHN R. HANSEN ("TAXPAYER"), WAS A MOTORCAR DEALER IN BELLEVUE,
WASHINGTON, AND KEPT HIS BOOKS ON THE ACCRUAL BASIS.  HE FREQUENTLY
SOLD AUTOMOBILES ON "TIME PAYMENTS."  THE TAXPAYER WAS NOT BOUND BY ANY
CONTRACT TO SELL HIS INSTALLMENT PAPER, BUT BECAUSE OF HIS NEEDS FOR
OPERATING CAPITAL HE CONSISTENTLY SOLD IT TO GENERAL MOTORS ACCEPTANCE
CORPORATION ("GMAC"). 

ALTHOUGH BEFORE SELLING INSTALLMENT PAPER TO GMAC THE TAXPAYER DID
NOT HAVE AN EXPRESS CONTRACT WITH THAT COMPANY CONCERNING THE TERMS AND
CONDITIONS OF SUCH SALES AND PURCHASES, HE HAD RECEIVED ITS MANUAL
COVERING ITS POLICIES ON THOSE SUBJECTS AND APPARENTLY ACTED UNDER
THEM.  THAT MANUAL WAS NOT PUT IN EVIDENCE, BUT IT IS INTIMATED IN THE
EVIDENCE AND FINDINGS AND STATED IN THE BRIEFS, WITHOUT CONTRADICTION,
THAT IT CONTAINED PROVISIONS TO THE EFFECT THAT UPON RECEIPT AND
ACCEPTANCE OF A DULY ASSIGNED CONDITIONAL SALE CONTRACT GUARANTEED BY
THE DEALER, GMAC WOULD PAY TO THE DEALER THE MAJOR PERCENTAGE (NOT
SPECIFIED IN THE EVIDENCE OR FINDINGS) OF THE AGREED PRICE THEREFOR,
BUT WOULD RETAIN THE REMAINING PERCENTAGE OF THE PRICE AND CREDIT THE
SAME ON ITS BOOKS TO A "DEALERS RESERVE ACCOUNT" IN THE NAME OF THE
DEALER, AS SECURITY FOR PERFORMANCE OF HIS OBLIGATIONS TO GMAC UNDER
HIS GUARANTY OF PAYMENT OF THE INSTALLMENT PAPER AND FOR THE PAYMENT OF
ANY OTHER OBLIGATION WHICH HE MIGHT INCUR TO GMAC.  ONCE IN EACH YEAR
GMAC WOULD REMIT TO THE DEALER SO MUCH OF HIS ACCUMULATED RESERVE AS
EXCEEDED 5% OF THE THEN AGGREGATE UNPAID BALANCES ON INSTALLMENT PAPER
WHICH GMAC HAD PURCHASED FROM THE DEALER. 

UPON NEGOTIATING A TIME SALE OF AN AUTOMOBILE AND RECEIVING THE DOWN
PAYMENT AND ANY OTHER SUM IMMEDIATELY PAYABLE, THE TAXPAYER PREPARED,
ON FORMS SUPPLIED BY GMAC, A CONDITIONAL SALE CONTRACT SETTING FORTH A
COMPILATION OF THE FIGURES, INCLUDING INSURANCE AND A FINANCE CHARGE,
INVOLVED IN THE TIME SALE AND CONCLUDING WITH A STATEMENT OF THE "TIME
(DEFERRED) BALANCE" WHICH WAS PAYABLE AT THE OFFICE OF GMAC IN FIXED
MONTHLY INSTALLMENTS.  WHEN THE CUSTOMER SIGNED AND DELIVERED TO THE
TAXPAYER THE CONDITIONAL SALE CONTRACT, THE AUTOMOBILE WAS DELIVERED TO
THE CUSTOMER AND, AS RECITED IN THAT CONTRACT, HE ACKNOWLEDGED
"DELIVERY AND ACCEPTANCE OF IT IN GOOD ORDER."  (FN2) 

IT WAS THE TAXPAYER'S CONSISTENT PRACTICE IMMEDIATELY THEREAFTER TO
ASSIGN THE CONDITIONAL SALE CONTRACT (AND GUARANTEE ITS PAYMENT) TO
GMAC BY EXECUTING THE FORM OF ASSIGNMENT PRINTED AT THE FOOT OF THE
FORM AND FORWARDING IT TO GMAC FOR PURCHASE.  (FN3)  UPON RECEIPT AND
ACCEPTANCE OF THE CONDITIONAL SALE CONTRACT AND ASSIGNMENT, GMAC
REMITTED TO THE TAXPAYER THE MAJOR PERCENTAGE OF THE PRICE IT WAS TO
PAY THEREFOR, BUT RETAINED THE REMAINING PERCENTAGE AND CREDITED IT ON
ITS BOOKS TO A "DEALERS RESERVE ACCOUNT" IN THE NAME OF THE TAXPAYER,
FOR THE PURPOSE OF SECURING PERFORMANCE BY HIM OF HIS OBLIGATIONS TO
GMAC. 

THE TAXPAYER RECORDED ON HIS BOOKS IN THE YEAR SUCH INSTALLMENT PAPER
WAS SOLD, AND INCLUDED IN HIS INCOME TAX RETURN FOR THAT YEAR, THE CASH
RECEIVED FROM GMAC, BUT HE DID NOT ACCRUE ON HIS BOOKS, OR INCLUDE IN
HIS RETURN, THE PERCENTAGE OF THE PRICE THAT WAS RETAINED BY GMAC AND
CREDITED TO HIS RESERVE ACCOUNT. 

THE COMMISSIONER PROPOSED THE ASSESSMENT OF DEFICIENCIES IN INCOMING
TAXES AGAINST THE TAXPAYER AND HIS WIFE FOR THE YEARS INVOLVED UPON THE
GROUNDS EARLIER STATED.  THE TAXPAYER SOUGHT A REDETERMINATION OF THE
TAX COURT WHICH, AFTER HEARING, SUSTAINED THE COMMISSIONER, BUT ON
TAXPAYER'S PETITION FOR REVIEW THE NINTH CIRCUIT REVERSED, 258 F.2D
585, AND WE GRANTED CERTIORARI FOR THE REASONS ALREADY STATED, 358 U.S.
879. 

RESPONDENT IN NO. 381, BURL P. GLOVER ("TAXPAYER"), DURING THE YEARS
1949, 1950 AND 1951 HERE INVOLVED, WAS A MOTORCAR DEALER IN PINE BLUFF,
ARKANSAS, AND KEPT HIS BOOKS AND FILED HIS INCOME TAX RETURNS ON A
CALENDAR YEAR ACCRUAL BASIS.  HE FREQUENTLY SOLD AUTOMOBILES ON TIME
PAYMENTS, THE UNPAID BALANCE OF THE PURCHASE PRICE OF EACH AUTOMOBILE,
INCLUDING INSURANCE AND A FINANCE CHARGE, BEING EVIDENCED BY THE
CUSTOMER'S PROMISSORY NOTE PAYABLE TO THE DEALER, OR HIS ORDER, IN
MONTHLY INSTALLMENTS OVER A FIXED PERIOD, AND SECURED BY A CHATTEL
MORTGAGE ON THE AUTOMOBILE. 

BEFORE THE NOTE AND MORTGAGE SALES TRANSACTIONS HERE INVOLVED, THE
TAXPAYER SIGNED A LETTER ADDRESSED TO UNIVERSAL C.I.T. CREDIT
CORPORATION (OBVIOUSLY WRITTEN ON A FORM PREPARED BY THE ADDRESSEE)
PROPOSING TO SELL TO UNIVERSAL C.I.T. CREDIT CORPORATION ("C.I.T.")
SUCH OF HIS NOTES AND MORTGAGES AS HE CHOSE TO SELL AND AS WERE
"ACCEPTABLE TO" C.I.T., AND AGREEING, AMONG OTHER THINGS, TO ENDORSE
WITH "FULL RECOURSE" CERTAIN OF THE NOTES ACCEPTED AND PURCHASED BY
C.I.T., AND TO PURCHASE FROM C.I.T. ANY AUTOMOBILE THAT IT REPOSSESSED
OR RECOVERED UNDER A NOTE AND MORTGAGE BOUGHT FROM HIM, AT A CASH
PRICE, PAYABLE ON DEMAND, EQUAL TO THE THEN UNPAID BALANCE OF THE NOTE
AND MORTGAGE, OR, FAILING IN THAT OBLIGATION, TO PAY TO C.I.T.  THE
AMOUNT OF ANY LOSS INCURRED BY IT IN SELLING SUCH REPOSSESSED
AUTOMOBILE.  THE LETTER ALSO STATED THAT THE PROVISIONS FOR "RESERVES
AS OUTLINED IN C.I.T.'S RESERVE ARRANGEMENT EFFECTIVE AT THE TIME PAPER
WAS PURCHASED BY IT," WOULD APPLY TO SUCH SALES, (FN4) AND THAT 3 TIMES
IN EACH 12-MONTH PERIOD, IF THE DEALER WAS NOT THEN INDEBTED TO C.I.T.,
THE LATTER WOULD PAY TO THE DEALER SO MUCH OF HIS RESERVES AS EXCEEDED
3% OF THE THEN AGGREGATE UNPAID BALANCES ON PAPER PURCHASED FROM THE
DEALER.  (FN5) 

UPON CONSUMMATING A TIME SALE OF AN AUTOMOBILE WITH HIS CUSTOMER IN
THE MANNER STATED, THE TAXPAYER DELIVERED THE AUTOMOBILE TO HIS
CUSTOMER, ALONG WITH A BILL OF SALE, SUBJECT TO THE MORTGAGE, WHICH
ENABLED THE CUSTOMER TO REGISTER, LICENSE AND USE IT. 

SOON AFTERWARD THE TAXPAYER, PURSUANT TO HIS LETTER TO C.I.T. JUST
REFERRED TO, ENDORSED THE NOTE (AND ASSIGNED THE MORTGAGE) TO C.I.T.,
IN SOME CASES WITHOUT RECOURSE AND IN OTHERS WITH FULL RECOURSE, AND
FORWARDED THE SAME TO C.I.T. FOR PURCHASE.  UPON RECEIPT AND ACCEPTANCE
OF THE NOTE AND MORTGAGE, C.I.T. REMITTED TO THE TAXPAYER THE MAJOR
PERCENTAGE (NOT SPECIFIED IN THE EVIDENCE OR FINDINGS) OF THE AGREED
PRICE THEREFOR, BUT RETAINED THE REMAINING PERCENTAGE AND CREDITED IT
ON ITS BOOKS TO A "DEALERS RESERVE ACCOUNT" IN THE NAME OF THE
TAXPAYER, FOR THE PURPOSE OF SECURING PERFORMANCE BY HIM OF HIS
OBLIGATIONS TO C.I.T. 

AS IN THE HANSEN CASE, THE TAXPAYER RECORDED ON HIS BOOKS IN THE YEAR
THE INSTALLMENT PAPER WAS SOLD, AND INCLUDED IN HIS INCOME TAX RETURN
FOR THAT YEAR, THE CASH RECEIVED FROM C.I.T., BUT HE DID NOT ACCRUE ON
HIS BOOKS, OR INCLUDE IN HIS RETURN, THE PERCENTAGE OF THE PRICE THAT
WAS RETAINED BY C.I.T. AND CREDITED TO HIS RESERVE ACCOUNT.  AND, AS IN
THE HANSEN CASE, THE COMMISSIONER PROPOSED THE ASSESSMENT OF
DEFICIENCIES IN INCOME TAXES AGAINST THE TAXPAYER FOR THE YEARS
INVOLVED UPON THE GROUNDS EARLIER STATED.  THE TAXPAYER SOUGHT A
REDETERMINATION IN THE TAX COURT WHICH, AFTER HEARING, SUSTAINED THE
COMMISSIONER, BUT, ON THE TAXPAYER'S PETITION FOR REVIEW, THE EIGHTH
CIRCUIT REVERSED, 253 F.2D 735, AND WE GRANTED CERTIORARI FOR THE
REASONS ALREADY STATED, 358 U.S. 879. 

PETITIONERS IN NO. 512, CLIFTON E. BAIRD AND VIOLET L. BAIRD
("TAXPAYERS"), ARE HUSBAND AND WIFE AND, DURING THE YEARS 1952, 1953
AND 1954 HERE INVOLVED, THEY WERE ALSO PARTNERS IN A FIRM KNOWN AS
"BAIRD TRAILER SALES" ("THE PARTNERSHIP") WHICH WAS ENGAGED PRIMARILY
IN SELLING HOUSE TRAILERS AT SALEM, INDIANA.  THE PARTNERSHIP KEPT ITS
BOOKS AND FILED ITS PARTNERSHIP (INFORMATIONAL) INCOME TAX RETURNS ON A
FISCAL YEAR ACCRUAL BASIS, BUT THE TAXPAYERS KEPT THEIR PERSONAL BOOKS,
AND FILED THEIR RETURNS, ON A CALENDAR YEAR CASH BASIS.  DURING THE
YEARS INVOLVED THE PARTNERSHIP SOLD MANY OF ITS TRAILERS ON "THE
INSTALLMENT BASIS," THE UNPAID PURCHASE PRICE OF EACH TRAILER BEING
EVIDENCED AND SECURED BY AN ASSIGNABLE OR NEGOTIABLE INSTRUMENT,
RETAINING IN THE PARTNERSHIP DEFEASIBLE TITLE TO OR A LIEN ON THE
TRAILER, SIGNED BY THE CUSTOMER, DELIVERED TO THE PARTNERSHIP, AND
PAYABLE TO IT IN MONTHLY INSTALLMENTS OVER AN AGREED PERIOD.    THE
PARTNERSHIP WAS NOT LEGALLY OBLIGATED TO SELL ITS INSTALLMENT PAPER BUT
ITS LIMITED OPERATING CAPITAL MADE IT NECESSARY, AS A PRACTICAL MATTER,
TO DO SO.  PRIOR TO THE TRANSACTIONS HERE INVOLVED THE PARTNERSHIP
ENTERED INTO CONTRACTS WITH MINNEHOMA FINANCIAL COMPANY ("MINNEHOMA"),
OF TULSA, OKLAHOMA, MICHIGAN NATIONAL BANK, OF GRAND RAPIDS, MICHIGAN,
AND MIDLAND DISCOUNT CORPORATION ("MIDLAND"), OF CINCINNATI, OHIO,
PROVIDING FOR THE SALE AND PURCHASE OF SUCH OF THE PARTNERSHIP'S
INSTALLMENT PAPER AS IT OFFERED FOR SALE AND AS THOSE COMPANIES WERE
WILLING TO BUY, AND THROUGHOUT THE YEARS IN QUESTION THE PARTNERSHIP
SOLD INSTALLMENT PAPER TO EACH OF THOSE COMPANIES UNDER THOSE
CONTRACTS. 

IT WAS PROVIDED IN THE MINNEHOMA CONTRACT THAT THE PARTNERSHIP, AMONG
OTHER LIABILITIES ASSUMED BY IT TO MINNEHOMA, WOULD UNCONDITIONALLY
GUARANTEE PAYMENT WHEN DUE OF ALL SUMS CALLED FOR BY ANY INSTALLMENT
PAPER PURCHASED FROM IT, AND THAT MINNEHOMA, UPON RECEIPT AND
ACCEPTANCE OF SUCH INSTALLMENT PAPER, WOULD REMIT TO THE PARTNERSHIP
95% OF THE AGREED PRICE TO BE PAID THEREFOR, BUT WOULD RETAIN THE
REMAINING 5% OF THE PRICE AND CREDIT IT (AND ALSO, IF IT WISHED, A
PORTION OF THE "FINANCE CHARGE") TO A RESERVE ACCOUNT ON ITS BOOKS IN
THE NAME OF THE PARTNERSHIP, AS SECURITY FOR PERFORMANCE OF ALL
ENDORSER, GUARANTOR, AND OTHER LIABILITIES OF THE PARTNERSHIP TO
MINNEHOMA.  (FN6) 

UNDER AN ORAL CONTRACT WITH MICHIGAN NATIONAL BANK, THE BANK AGREED
THAT, UPON RECEIPT AND ACCEPTANCE OF INSTALLMENT PAPER ENDORSED BY THE
PARTNERSHIP WITH FULL RECOURSE, IT WOULD IMMEDIATELY PAY TO THE
PARTNERSHIP A PERCENTAGE (NOT SPECIFIED IN THE EVIDENCE OR FINDINGS) OF
THE PRICE TO BE PAID THEREFOR, BUT THAT THE REMAINING PERCENTAGE OF THE
PRICE WOULD BE RETAINED AND CREDITED TO A "RESERVE ACCOUNT" IN THE BANK
IN THE NAME OF THE PARTNERSHIP.  THAT RESERVE ACCOUNT WAS
CONTEMPORANEOUSLY ASSIGNED TO THE BANK BY THE PARTNERSHIP UNDER THE
"COLLATERAL ASSIGNMENT" SHOWN IN THE MARGIN.  (FN7) 

THE CONTRACT WITH MIDLAND WAS EVIDENCED BY TWO LETTERS.  IN ESSENCE
THEY STATED THAT UPON RECEIPT AND ACCEPTANCE OF INSTALLMENT PAPER,
ENDORSED BY THE PARTNERSHIP WITH FULL RECOURSE, MIDLAND WOULD "ADVANCE"
97% OF THE PRICE TO BE PAID THEREFOR IF ON NEW TRAILERS AND 95% OF THE
PRICE IF ON USED TRAILERS, AND THAT THE "DIFFERENTIALS OF 3% AND 5%"
WOULD BE RETAINED AND CREDITED ON MIDLAND'S BOOKS TO A RESERVE ACCOUNT
IN THE NAME OF THE PARTNERSHIP, FOR THE PURPOSE OF SECURING PERFORMANCE
OF ITS OBLIGATIONS TO MIDLAND.  (FN8)  THEY ALSO STATED THAT, WHEN A
PARTICULAR NOTE HAS BEEN PAID OUT, THE AMOUNT CREDITED TO THE RESERVE
ON ACCOUNT OF THAT NOTE WOULD BE IMMEDIATELY PAID TO THE DEALER, AND
THAT WHEN THE "RESERVE FUND EXCEEDS 10% OF THE PARTNERSHIP'S
OUTSTANDINGS, THE EXCESS WILL BE PAID TO THE PARTNERSHIP
AUTOMATICALLY." 

HERE, AS IN THE HANSEN AND GLOVER CASES, THE PARTNERSHIP DID NOT
ACCRUE ON ITS BOOKS, AND THE TAXPAYERS DID NOT INCLUDE IN THEIR
INDIVIDUAL RETURNS, IN ANY OF THE YEARS HERE INVOLVED, THE AMOUNTS THAT
WERE RETAINED BY MINNEHOMA, MICHIGAN NATIONAL BANK AND MIDLAND AND
CREDITED ON THEIR RESPECTIVE BOOKS TO THE PARTNERSHIP'S RESERVE
ACCOUNTS, AND, AGAIN, AS IN THE HANSEN AND GLOVER CASES, THE
COMMISSIONER PROPOSED ASSESSMENT AGAINST THE TAXPAYERS OF DEFICIENCIES
IN INCOME TAXES FOR THE YEARS INVOLVED UPON THE GROUNDS PREVIOUSLY
STATED.  SIMILARLY, THE TAXPAYERS SOUGHT A REDETERMINATION IN THE TAX
COURT WHICH, AFTER HEARING, SUSTAINED THE COMMISSIONER.  ON THE
TAXPAYERS' PETITION FOR REVIEW, THE SEVENTH CIRCUIT AFFIRMED, 256 F.2D
918, AND WE GRANTED CERTIORARI FOR THE REASONS ALREADY STATED, 358 U.S.
918. 

WE TURN, FIRST, TO THE TAXPAYERS' CONTENTION THAT, IN SUBSTANCE, THE
PURCHASER, NOT THE DEALER, OBTAINS THE LOAN DIRECTLY FROM A FINANCE
COMPANY, AND THAT THE PERCENTAGE OF THE LOAN WHICH IS RETAINED BY THE
FINANCE COMPANY - ALTHOUGH CREDITED ON ITS BOOKS TO A RESERVE ACCOUNT
IN THE NAME OF THE DEALER AS COLLATERAL SECURITY FOR THE PAYMENT OF HIS
LIABILITIES TO THE FINANCE COMPANY - IS THE PROPERTY OF THE PURCHASER
OF THE VEHICLE, NOT THE DEALER, AND THEREFORE MAY NOT BE REGARDED AS
ACCRUED INCOME TO THE DEALER. 

THE BASIS OF THE CONTENTION (FILLING IN THE OMITTED BUT NECESSARILY
INVOLVED STEPS) IS THAT EACH OF THESE TRANSACTIONS IS A SINGLE, "THREE
CORNERED" ONE BETWEEN THE DEALER, THE FINANCE COMPANY AND THE
PURCHASER; THAT, IN SUBSTANCE, THE DEALER AGREES TO SELL THE VEHICLE TO
THE PURCHASER FOR "A DOWN PAYMENT PLUS CASH" (THE TERM "CASH" AS HERE
USED MUST NECESSARILY REFER TO THE UNPAID BALANCE OF THE PURCHASE
PRICE); THAT THE PURCHASER AGREES IMMEDIATELY TO OBTAIN FROM THE
FINANCE COMPANY, AND IT AGREES TO MAKE TO THE PURCHASER, A LOAN, ON THE
SECURITY OF THE VEHICLE, IN AN AMOUNT AT LEAST EQUAL TO THE UNPAID
BALANCE OF THE PURCHASE PRICE OWING BY THE PURCHASER TO THE DEALER FOR
THE VEHICLE; AND THAT THE PURCHASER AGREES IMMEDIATELY TO PAY, OR TO
DIRECT THE FINANCE COMPANY TO PAY, TO THE DEALER, OUT OF THE PROCEEDS
OF THE LOAN, AN AMOUNT EQUAL TO 95% (IN MOST INSTANCES) OF THE UNPAID
BALANCE OF THE PURCHASE PRICE OWING BY THE PURCHASER TO THE DEALER FOR
THE VEHICLE.  ALTHOUGH THIS LEAVES AN UNPAID BALANCE OF THE PURCHASE
PRICE OF THE VEHICLE (5% IN MOST INSTANCES) STILL OWING BY THE
PURCHASER TO THE DEALER, IT ALSO LEAVES IN POSSESSION OF THE FINANCE
COMPANY, OUT OF THE PROCEEDS OF THE LOAN, AN AMOUNT AT LEAST EQUAL TO
THAT 5%.  NEVERTHELESS THE PURCHASER, WITH THE CONSENT OF THE DEALER,
AGREES WITH THE FINANCE COMPANY THAT THE LATTER SHALL RETAIN THAT 5%
AND CREDIT IT ON ITS BOOKS TO A RESERVE ACCOUNT IN THE NAME OF THE
DEALER, AS COLLATERAL SECURITY FOR THE PAYMENT OF HIS CONTINGENT
LIABILITIES TO THE FINANCE COMPANY.  ON THESE ASSUMPTIONS OF FACT THE
TAXPAYERS CONTEND THAT THE RESERVES RETAINED BY THE FINANCE COMPANIES,
THOUGH CREDITED ON THEIR BOOKS TO THE DEALERS' RESERVE ACCOUNTS, ARE
ONLY CONTINGENTLY SO CREDITED AND ARE SUBJECT TO CANCELLATION IF THE
PURCHASER FAILS TO PAY OUT HIS LOAN AND, AT ALL EVENTS, THE RESERVES
BELONG TO THE PURCHASERS, AND SHOULD NOT BE REGARDED AS ACCRUED INCOME
OF THE DEALERS. 

THE NINTH CIRCUIT IN THE HANSEN CASE, HEAVILY RELYING UPON THE
OPINION OF THE FIFTH CIRCUIT IN TEXAS TRAILER-COACH, INC., V.
COMMISSIONER, 251 F.2D 395, ADOPTED THIS THEORY AND LARGELY RESTED ITS
DECISION UPON THAT GROUND, 258 F.2D, AT 588, AND, TO A LESSER EXTENT,
SO DID THE EIGHTH CIRCUIT IN THE GLOVER CASE, 253 F.2D, AT 737.  THE
TAXPAYERS CONTEND HERE THAT SUCH IS THE SUBSTANCE, IF NOT THE FORM, OF
THEIR TRANSACTIONS AND THAT, INASMUCH AS TAXATION DEPENDS ON SUBSTANCE
AND NOT ON FORM, THE HANSEN AND GLOVER CASES SHOULD BE AFFIRMED AND THE
BAIRD CASE SHOULD BE REVERSED ON THIS GROUND ALONE. 

WE AGREE, OF COURSE, THAT THE INCIDENCE OF TAXATION DEPENDS UPON THE
SUBSTANCE, NOT THE FORM, OF THE TRANSACTION, COMMISSIONER V. COURT
HOLDING CO., 324 U.S. 331, 334; HELVERING V. F.&R. LAZARUS & CO., 308
U.S. 252, 255; BOWERS V. KERBAUGH-EMPIRE CO., 271 U.S. 170, 174; WEISS
V. STEARN, 265 U.S. 242, 254; UNITED STATES V. PHELLIS, 257 U.S. 156,
168, BUT WE THINK THAT THE TAXPAYERS HAVE ASSUMED FACTS WHICH ARE
CONTRARY TO THE RECORDS AND ARE WHOLLY WITHOUT SUBSTANCE. 

THESE RECORDS CLEARLY SHOW THAT, IN EVERY INSTANCE, THE INSTALLMENT
PAPER WAS EXECUTED BY THE PURCHASER AND MADE PAYABLE TO THE DEALER
(THOUGH IN THE HANSEN CASE "AT THE OFFICE OF" GMAC, AND IN THE BAIRD
CASE "AT THE OFFICE OF" MINNEHOMA), AND THAT THE SAME WAS LATER
ASSIGNED OR ENDORSED BY THE DEALER AND SENT TO THE FINANCE COMPANY FOR
PURCHASE, UNDER AND SUBJECT TO THE DEALER'S CONTRACTUALLY ASSUMED
CONTINGENT LIABILITIES TO THE FINANCE COMPANY RESPECTING IT, (FN9) AND
THAT, IN EVERY INSTANCE, THE FINANCE COMPANY, UPON RECEIPT AND
ACCEPTANCE OF THE INSTALLMENT PAPER AND OF THE DEALER'S OBLIGATIONS
RESPECTING IT, IMMEDIATELY PAID TO THE DEALER A MAJOR PERCENTAGE OF THE
AGREED OR FORMULA FIXED PRICE FOR THE PAPER; BUT, PURSUANT TO THE TERMS
OF THE DEALER'S CONTRACT WITH THE FINANCE COMPANY, THE LATTER RETAINED
THE REMAINING PERCENTAGE OF THE PRICE AND CREDITED IT ON ITS BOOKS TO
THE DEALER'S RESERVE ACCOUNT, AS COLLATERAL SECURITY FOR THE PAYMENT OF
HIS CONTINGENT LIABILITIES TO THE FINANCE COMPANY ON SUCH INSTALLMENT
PAPER. 

IT IS THEREFORE CLEAR THAT THE RETAINED PERCENTAGES OF THE PURCHASE
PRICE OF THE INSTALLMENT PAPER, FROM THE TIME THEY WERE ENTERED ON THE
BOOKS OF THE FINANCE COMPANIES AS LIABILITIES TO THE RESPECTIVE
DEALERS, WERE VESTED IN AND BELONGED TO THE RESPECTIVE DEALERS, SUBJECT
ONLY TO THEIR SEVERAL PLEDGES THEREOF TO THE RESPECTIVE FINANCE
COMPANIES AS COLLATERAL SECURITY FOR THE PAYMENT OF THEIR THEN
CONTINGENT LIABILITIES TO THE FINANCE COMPANIES. 

THIS BRINGS US TO THE QUESTION WHETHER AMOUNTS OF PURCHASE PRICE
WITHHELD BY FINANCE COMPANIES AS SECURITY TO COVER POSSIBLE LOSSES ON
INSTALLMENT PAPER PURCHASED FROM DEALERS, WHO EMPLOY THE ACCRUAL METHOD
OF ACCOUNTING, CONSTITUTE INCOME TO THEM AT THE TIME THE WITHHELD
AMOUNTS ARE RECORDED ON THE BOOKS OF THE FINANCE COMPANIES AS
LIABILITIES TO THE DEALERS. 

THE PRINCIPLES GOVERNING THE ACCRUAL AND REPORTING OF INCOME BY
TAXPAYERS WHO EMPLOY THE ACCRUAL BASIS HAVE LONG BEEN SETTLED BY THE
OPINIONS OF THIS COURT, SECURITY FLOUR MILLS CO. V. COMMISSIONER, 321
U.S. 281; SPRING CITY FOUNDRY CO. V. COMMISSIONER, 292 U.S. 182, 184;
BROWN V. HELVERING, 291 U.S. 193, 199.  IN SPRING CITY FOUNDRY CO. V.
COMMISSIONER, SUPRA, CHIEF JUSTICE HUGHES, SPEAKING FOR THE COURT,
SAID: 

"KEEPING ACCOUNTS AND MAKING RETURNS ON THE ACCRUAL BASIS, AS
DISTINGUISHED FROM THE CASH BASIS, IMPORT THAT IT IS THE RIGHT TO
RECEIVE AND NOT THE ACTUAL RECEIPT THAT DETERMINES THE INCLUSION OF THE
AMOUNT IN GROSS INCOME.  WHEN THE RIGHT TO RECEIVE AN AMOUNT BECOMES
FIXED, THE RIGHT ACCRUES."  292 U.S., AT 184-185. 

THOSE PRINCIPLES ARE NOT QUESTIONED HERE, BUT THE PARTIES DIFFER
RESPECTING THEIR APPLICATION TO THE FACTS OF THESE CASES.  THE
TAXPAYERS CONTEND, FIRST, THAT THEY CANNOT PRESENTLY COMPEL THE FINANCE
COMPANIES TO PAY TO THEM THE AMOUNTS OF THEIR RESERVE ACCOUNTS, AND
THEREFORE THEY HAVE NOT ACQUIRED A PRESENTLY ENFORCIBLE RIGHT TO
RECOVER THOSE RESERVES, AND, HENCE, THEY SHOULD NOT BE DEEMED TO
CONSTITUTE ACCRUED INCOME TO THEM.  INASMUCH AS THESE RECORDS SHOW THAT
THE PAY-OUT PERIOD FOR AUTOMOBILES VARIES FROM 12 TO 36 MONTHS AND FOR
HOUSE TRAILERS FROM 36 TO 60 MONTHS, IT IS DOUBTLESS TRUE THAT THE
TAXPAYERS, HAVING PLEDGED THEIR RESERVE ACCOUNTS TO THE FINANCE
COMPANIES AS COLLATERAL SECURITY, CANNOT PRESENTLY COMPEL THE FINANCE
COMPANIES TO PAY OVER THEIR RESERVES.  BUT THE QUESTION IS NOT WHETHER
THE TAXPAYERS CAN PRESENTLY RECOVER THEIR RESERVES, FOR, AS STATED, IT
IS THE TIME OF ACQUISITION OF THE FIXED RIGHT TO RECEIVE THE RESERVES
AND NOT THE TIME OF THEIR ACTUAL RECEIPT THAT DETERMINES WHETHER OR NOT
THE RESERVES HAVE ACCRUED AND ARE TAXABLE. 

THE TAXPAYERS NEXT CONTEND THAT THE AMOUNTS THAT WERE RETAINED BY THE
FINANCE COMPANIES AND ENTERED ON THEIR BOOKS AS LIABILITIES TO THE
DEALERS UNDER THEIR RESERVE ACCOUNTS, WERE SUBJECT TO SUCH
CONTINGENCIES THAT IT COULD NOT HAVE BEEN KNOWN, IN THE YEAR OF SUCH
RETENTIONS AND CREDITS, WHAT AMOUNT OF THOSE RESERVES WOULD ACTUALLY BE
RECEIVED BY THEM AND, HENCE, THEY DID NOT ACQUIRE, IN THE YEAR OF SUCH
RETENTIONS AND CREDITS, A FIXED RIGHT TO RECEIVE - IN A LATER YEAR OR
AT ANY TIME - THE AMOUNTS SO WITHHELD AND CREDITED TO THEM, AND
THEREFORE THOSE AMOUNTS DID NOT CONSTITUTE ACCRUED INCOME TO THEM. 

IT IS TRUE THAT THE AMOUNTS RETAINED BY ANY ONE OF THE FINANCE
COMPANIES, AND ENTERED ON ITS BOOKS AS A LIABILITY TO A PARTICULAR
DEALER, ARE SUBJECT TO SUCH LIABILITIES AS THE DEALER MAY HAVE
CONTRACTUALLY ASSUMED TO THE FINANCE COMPANY, BUT ONLY THE OBLIGATIONS
OF THE DEALER TO THE FINANCE COMPANY ARISING FROM THOSE LIABILITIES MAY
BE OFFSET AGAINST A LIKE AMOUNT IN THE DEALER'S RESERVE ACCOUNT. 
HENCE, THOSE LIABILITIES AND OBLIGATIONS PROVIDE THE ONLY CONDITIONS
THAT CAN AFFECT FULL CASH PAYMENT TO THE DEALER OF HIS RESERVE
ACCOUNT.  NO AMOUNT MAY BE CHARGED BY THE FINANCE COMPANY AGAINST THE
DEALER'S RESERVE ACCOUNT WHICH HE HAS NOT THUS AUTHORIZED. 

IT FOLLOWS THAT ONLY ONE OR THE OTHER OF TWO THINGS CAN HAPPEN TO THE
DEALER'S RESERVE ACCOUNT: (1) THE FINANCE COMPANY IS BOUND TO PAY THE
FULL AMOUNT TO THE DEALER IN CASH, OR (2) IF THE DEALER HAS INCURRED
OBLIGATIONS TO THE FINANCE COMPANY UNDER HIS GUARANTY, ENDORSEMENT, OR
CONTRACT OF SALE, OF THE INSTALLMENT PAPER, THE FINANCE COMPANY MAY
APPLY SO MUCH OF THE RESERVE AS IS NECESSARY TO DISCHARGE THOSE
OBLIGATIONS, AND IS BOUND TO PAY THE REMAINDER TO THE DEALER IN CASH. 

DOES THE DEALER "RECEIVE" FUNDS WHICH ARE SO TAKEN FROM HIS RESERVE
ACCOUNT AND APPLIED TO THE PAYMENT OF HIS OBLIGATIONS TO THE FINANCE
COMPANY?  THE DEALER AGREED IN HIS CONTRACT WITH THE FINANCE COMPANY TO
RECEIVE HIS RESERVE IN OFFSET PAYMENT OF HIS OBLIGATIONS TO THE FINANCE
COMPANY AND THE BALANCE IN CASH.  IT WOULD THEREFORE SEEM THAT FUNDS IN
THE DEALER'S RESERVE WHICH ARE APPLIED TO THE PAYMENT OF HIS
OBLIGATIONS TO THE FINANCE COMPANY ARE AS MUCH "RECEIVED" BY HIM AS
THOSE WHICH THE FINANCE COMPANY PAYS TO HIM IN CASH.  THE SEVENTH
CIRCUIT TOOK THAT VIEW IN THE BAIRD CASE, SAYING:    "ULTIMATELY ONLY
TWO THINGS COULD HAPPEN TO THE FUNDS IN THE DEALER'S RESERVE ACCOUNTS:
EITHER THE AMOUNTS WOULD BE PAID TO THE PARTNERSHIP IN CASH OR THEY
WOULD BE USED TO SATISFY THE PARTNERSHIP'S OTHER OBLIGATIONS TO THE
FINANCE COMPANIES."  256 F.2D, AT 924. 

IN ANY REALISTIC VIEW WE THINK THAT THE DEALER HAS "RECEIVED" HIS
RESERVE ACCOUNT WHETHER IT IS APPLIED, AS HE AUTHORIZED, TO THE PAYMENT
OF HIS OBLIGATIONS TO THE FINANCE COMPANY, OR IS PAID TO HIM IN CASH. 
(FN10) 

IT FOLLOWS THAT THE AMOUNTS (OF PURCHASE PRICE OF THE INSTALLMENT
PAPER) THAT WERE WITHHELD BY THE FINANCE COMPANIES CONSTITUTED ACCRUED
INCOME TO THESE ACCRUAL BASIS DEALERS AT THE TIME THE WITHHELD AMOUNTS
WERE ENTERED ON THE BOOKS OF THE FINANCE COMPANIES AS LIABILITIES TO
THE DEALERS, FOR AT THAT TIME THE DEALERS ACQUIRED A FIXED RIGHT TO
RECEIVE THE AMOUNTS SO RETAINED BY THE FINANCE COMPANIES. 

THE TAXPAYERS COMPLAIN THAT SUCH A HOLDING WILL UNFAIRLY REQUIRE THEM
TO PAY TAXES UPON FUNDS WHICH ARE NOT AVAILABLE TO THEM FOR THAT
PURPOSE.  THOUGH THE FUNDS ARE NOT PRESENTLY AVAILABLE TO THE TAXPAYERS
FOR THE PAYMENT OF TAXES, THEY ARE NEVERTHELESS OWNED BY THE TAXPAYERS,
AND THE LATTER CANNOT EXPECT TO COLLATERALIZE THEIR LIABILITIES, FOR
PERIODS RUNNING FROM 1 TO 5 YEARS, BY THE USE OF THEIR ACCRUED BUT
UNTAXED FUNDS.  MOREOVER, IT IS A NORMAL RESULT OF THE ACCRUAL BASIS OF
ACCOUNTING AND REPORTING THAT TAXES FREQUENTLY MUST BE PAID ON ACCRUED
FUNDS BEFORE RECEIPT OF THE CASH WITH WHICH TO PAY THEM, JUST AS THE
NINTH CIRCUIT STATED IN THE HANSEN CASE, 258 F.2D, AT 587.  SEE
SECURITY FLOUR MILLS CO. V. COMMISSIONER, 321 U.S. 281, 284-285. 

TO PERMIT ACCRUAL BASIS TAXPAYERS TO ESCAPE ACCRUAL AND TAXATION, IN
A PARTICULAR YEAR, OF SUCH PORTIONS OF THEIR SALES AS THEY MAY PERMIT
TO BE RETAINED BY BUYERS, AS COLLATERAL SECURITY, WELL MIGHT VIOLATE
SEC. 42(A) OF THE 1939 INTERNAL REVENUE CODE AS AMENDED, (FN11) AND,
MOREOVER, MIGHT WELL AFFORD OPPORTUNITIES TO ACCRUAL BASIS TAXPAYERS TO
ALLOCATE INCOME TO YEARS DEEMED MOST ADVANTAGEOUS. 

THE COMMISSIONER HAS BROAD POWERS IN DETERMINING WHETHER ACCOUNTING
METHODS USED BY A TAXPAYER CLEARLY REFLECT INCOME, LUCAS V. AMERICAN
CODE CO., 280 U.S. 445, 449; AUTOMOBILE CLUB OF MICHIGAN V.
COMMISSIONER, 353 U.S. 180, 189-190, AND UNDER SEC. 41 OF THE INTERNAL
REVENUE CODE OF 1939, 26 U.S.C. (1952 ED.)  SEC.  41, THE COMMISSIONER,
BELIEVING THAT THE ACCOUNTING METHOD EMPLOYED BY A TAXPAYER "DOES NOT
CLEARLY REFLECT THE INCOME," MAY REQUIRE THAT "COMPUTATION SHALL BE
MADE IN ACCORDANCE WITH SUCH METHOD AS IN HIS OPINION  ...  DOES
CLEARLY REFLECT THE INCOME."  SINCE 1931 THE INTERNAL REVENUE SERVICE
HAS CONSISTENTLY MAINTAINED THAT AMOUNTS WITHHELD BY FINANCE COMPANIES
TO COVER POSSIBLE LOSSES ON NOTES PURCHASED FROM DEALERS CONSTITUTE
INCOME TO DEALERS, WHO EMPLOY THE ACCRUAL METHOD OF ACCOUNTING, FROM
THE TIME THE AMOUNTS ARE RECORDED ON THE BOOKS OF THE FINANCE COMPANIES
AS LIABILITIES TO THE DEALERS.  (FN12)  THAT POSITION, IN GENERAL,
ACCORDS WITH OUR VIEW. 

THE TAXPAYERS HAVE ARGUED THAT PORTIONS OF THE DEALERS RESERVE
ACCOUNTS CONSIST OF PERCENTAGES OF "FINANCE CHARGES" (FN13) WHICH THE
FINANCE COMPANIES AGREED TO ALLOW THEM, AND THAT SUCH PERCENTAGES OF
THE "FINANCE CHARGES," NOT BEING A PART OF THE PURCHASE PRICE OF THE
INSTALLMENT PAPER, SHOULD IN NO EVENT BE REGARDED AS ACCRUED INCOME TO
THE DEALERS.  HOWEVER, THE RESPECTIVE TAXPAYERS, EACH OF WHOM HAD THE
BURDEN OF SHOWING THAT HE DID NOT OWE THE TAXES WHICH THE COMMISSIONER
PROPOSED TO ASSESS AGAINST HIM, WHOLLY FAILED TO ADDUCE EVIDENCE TO
SUPPORT THEIR CLAIMS.  THEY FAILED EVEN TO ADDUCE EVIDENCE SHOWING
WHETHER ANY PERCENTAGES OF THE "FINANCE CHARGES" THAT MAY HAVE BEEN
ALLOWED TO THEM BY THE RESPECTIVE FINANCE COMPANIES WERE ENTERED ON THE
BOOKS OF THE FINANCE COMPANIES AS CREDITS TO THE RESPECTIVE "DEALERS
RESERVE ACCOUNTS," AND IF SO, WHETHER SUCH PERCENTAGES OF THE "FINANCE
CHARGES" SO CREDITED HAD BEEN IDENTIFIED AND SEPARATED IN CHARACTER AND
AMOUNT FROM THE PERCENTAGES OF THE PURCHASE PRICE OF THE INSTALLMENT
PAPER THAT WERE RETAINED BY THE FINANCE COMPANIES AND ENTERED ON THEIR
BOOKS AS LIABILITIES TO THE DEALERS IN THEIR RESPECTIVE DEALERS RESERVE
ACCOUNTS.  FOR THESE REASONS THE RESPECTIVE TAXPAYERS HAVE WHOLLY
FAILED TO SUSTAIN THE BURDEN OF SHOWING THAT ANY PART OF THE AMOUNTS
CREDITED ON THE BOOKS OF THE FINANCE COMPANIES TO THE RESPECTIVE
DEALERS RESERVE ACCOUNTS WAS ENTITLED TO SPECIAL TREATMENT. 

THE JUDGMENTS IN NO. 380 AND NO. 381 ARE REVERSED AND THE JUDGMENT IN
NO. 512 IS AFFIRMED. 

FN1  THE SIXTH CIRCUIT IN SCHAEFFER V. COMMISSIONER, 258 F.2D 861,
SUSTAINED THE COMMISSIONER'S POSITION.  ALSO THE TAX COURT SINCE
SHOEMAKER-NASH, INC., V. COMMISSIONER, 41 B.T.A. 417 (1940) HAS BY A
LONG LINE OF DECISIONS CONSISTENTLY SUSTAINED THE COMMISSIONER'S
POSITION. 

ON THE OTHER HAND THE FOURTH CIRCUIT HAS SUSTAINED THE TAXPAYERS'
POSITION IN JOHNSON V. COMMISSIONER, 233 F.2D 952.  AND THE FIFTH
CIRCUIT HAS SUSTAINED THE TAXPAYERS' POSITION IN TEXAS TRAILERCOACH,
INC., V. COMMISSIONER, 251 F.2D 395, WEST PONTIAC, INC., V.
COMMISSIONER, 257 F.2D 810, AND IN SEVERAL JUDGMENTS (WITHOUT OPINIONS)
ENTERED ON STIPULATIONS SPECIFICALLY PRESENTING ANEW THE SAME ISSUE
WHICH THAT COURT HAD DECIDED IN TEXAS TRAILERCOACH, INC., V.
COMMISSIONER, SUPRA.  IN ENTERING THOSE JUDGMENTS (IN UNITED STATES V.
HINES PONTIAC, 2 P-H FED. TAX REP. 2D 5694, UNITED STATES V. MODERN
OLDS, INC., 2 P-H FED. TAX REP. 2D 5713, AND KILBORN V. COMMISSIONER, 2
P-H FED. TAX REP. 2D 5812), THE FIFTH CIRCUIT ADHERED TO ITS DECISION
IN TEXAS TRAILERCOACH, INC., V. COMMISSIONER, SUPRA. 

FN2  AT THE VERY BEGINNING OF THE FORM THERE IS A RECITAL THAT "THE
UNDERSIGNED SELLER (THE DEALER) HEREBY SELLS, AND THE UNDERSIGNED
PURCHASER OR PURCHASERS, JOINTLY AND SEVERALLY, HEREBY PURCHASES),
SUBJECT TO THE TERMS AND CONDITIONS HEREINAFTER SET FORTH, THE
FOLLOWING PROPERTY, DELIVERY AND ACCEPTANCE OF WHICH IN GOOD ORDER ARE
HEREBY ACKNOWLEDGED BY PURCHASER," AND THEN FOLLOWS A DETAILED
DESCRIPTION OF THE AUTOMOBILE, AND A COMPUTATION OF THE AMOUNTS WHICH
SUPPORT THE "TIME (DEFERRED) BALANCE" THAT IS PAYABLE BY THE PURCHASER
IN MONTHLY INSTALLMENTS. 

THE REVERSE SIDE OF THE FORM RECITES THAT "FOR THE PURPOSE OF SECURING
PAYMENT OF THE OBLIGATION HEREUNDER, SELLER RESERVES TITLE, AND SHALL
HAVE A SECURITY INTEREST, IN SAID PROPERTY UNTIL SAID AMOUNT IS FULLY
PAID IN CASH."  IT THEN GOES ON TO SPECIFY THE VARIOUS CONDITIONS TO BE
OBSERVED BY THE PURCHASER, WHICH ARE USUALLY FOUND IN CONDITIONAL SALE
CONTRACTS. 

FN3  THAT ASSIGNMENT, SO FAR AS PERTINENT, PROVIDES: 

"FOR VALUE RECEIVED, UNDERSIGNED (THE DEALER) DOES HEREBY SELL,
ASSIGN AND TRANSFER TO THE GENERAL MOTORS ACCEPTANCE CORPORATION HIS
...  RIGHT, TITLE AND INTEREST IN AND TO THE WITHIN CONTRACT, HEREWITH
SUBMITTED FOR PURCHASE BY IT, AND THE PROPERTY COVERED THEREBY AND
AUTHORIZES SAID GENERAL MOTORS ACCEPTANCE CORPORATION TO DO EVERY ACT
AND THING NECESSARY TO COLLECT AND DISCHARGE THE SAME. 

     *         *         *         *         * 

"IN CONSIDERATION OF YOUR PURCHASE OF THE WITHIN CONTRACT,
UNDERSIGNED (THE DEALER) GUARANTEES PAYMENT OF THE FULL AMOUNT
REMAINING UNPAID HEREON, AND COVENANTS IF DEFAULT BE MADE IN PAYMENT OF
ANY INSTALMENT HEREIN TO PAY THE FULL AMOUNT THEN UNPAID TO GENERAL
MOTORS ACCEPTANCE CORPORATION UPON DEMAND  ...  ." 

FN4  THIS RECORD DOES NOT CONTAIN C.I.T.'S "RESERVE ARRANGEMENT." 

FN5  THE PERTINENT PARTS OF THE TAXPAYER'S LETTER, REFERRED TO IN THE
TEXT, MAY BE MORE FULLY SUMMARIZED AS FOLLOWS:  C.I.T. WAS TO BUY FROM
THE TAXPAYER SUCH OF HIS NOTES AND MORTGAGES AS HE CHOSE TO SELL AND AS
WERE "ACCEPTABLE TO" C.I.T.  SOME OF THE NOTES AND MORTGAGES WERE TO BE
ENDORSED BY THE DEALER TO C.I.T. WITHOUT RECOURSE, BUT "PAPER COVERING
COMMERCIAL CARS USED FOR LONG DISTANCE HAULING, COMMERCIAL CARS OF MORE
THAN TWO TONS CAPACITY, BUSSES, CARS USED FOR TAXI, JITNEY, 'DRIVE
YOURSELF' SERVICE, OR CARS SOLD TO RELATIVES OR EMPLOYEES" WAS TO BEAR
THE DEALER'S "FULL RECOURSE ENDORSEMENT." 

PROVISIONS FOR "RESERVES AS OUTLINED IN C.I.T.'S RESERVE ARRANGEMENT
EFFECTIVE AT THE TIME PAPER WAS PURCHASED BY IT," WERE TO BE APPLICABLE
TO SUCH SALES, BUT AS EARLIER OBSERVED THIS RECORD DOES NOT CONTAIN
C.I.T.'S "RESERVE ARRANGEMENT."  THREE TIMES IN EACH 12-MONTH PERIOD,
IF THE DEALER WAS NOT THEN INDEBTED TO C.I.T., THE LATTER WOULD PAY TO
THE DEALER HIS "ACCUMULATED RESERVES IN EXCESS OF 3% OF THE THEN
AGGREGATE UNPAID BALANCES ON PAPER PURCHASED FROM HIM," BUT IF C.I.T.
STOPPED BUYING INSTALLMENT PAPER FROM THE DEALER THE FORMER WAS
AUTHORIZED TO "HOLD AND APPLY ALL RESERVES UNTIL LIQUIDATION OF ALL
PAPER PURCHASED FROM THE DEALER WAS COMPLETED." 

THE TAXPAYER WAS TO PURCHASE FROM C.I.T. "EACH REPOSSESSED OR
RECOVERED CAR TENDERED AT THE DEALER'S PLACE OF BUSINESS WITHIN 90 DAYS
AFTER MATURITY OF THE EARLIEST INSTALMENT STILL UNPAID," AT A PRICE,
PAYABLE ON DEMAND, EQUAL TO "THE UNPAID BALANCE DUE ON THE CAR," OF, IF
THE DEALER FAILED TO DO SO, HE WAS TO PAY TO C.I.T. THE AMOUNT OF "ANY
DEFICIENCY INCURRED BY C.I.T. IN THE RESALE OF SUCH REPOSSESSED CARS
...  ." 

IF BECAUSE OF PREPAYMENT OF A NOTE BY A MAKER, C.I.T. REFUNDED ANY
PART OF A "SERVICE CHARGE," THE TAXPAYER AGREED TO PAY TO C.I.T. THE
SAME PERCENTAGES, IF ANY, OF THE REFUND AS HAD ORIGINALLY BEEN CREDITED
TO HIS RESERVE ACCOUNT. 

FN6  THE MATERIAL PARTS OF THE CONTRACT BETWEEN THE PARTNERSHIP AND
MINNEHOMA MAY BE SUMMARIZED AS FOLLOWS:  UPON RECEIPT AND ACCEPTANCE OF
INSTALLMENT PAPER FROM THE PARTNERSHIP, MINNEHOMA WOULD REMIT TO THE
PARTNERSHIP 95% OF THE PRICE TO BE PAID THEREFOR, BUT WOULD RETAIN THE
REMAINING 5% OF THE PRICE AND CREDIT IT (AND ALSO, IF IT WISHED, A
PORTION OF THE "FINANCE CHARGE" PAID BY THE MAKER) TO A RESERVE ACCOUNT
ON ITS BOOKS IN THE NAME OF THE PARTNERSHIP.  THE PARTNERSHIP
UNCONDITIONALLY GUARANTEED PAYMENT WHEN DUE OF ALL SUMS CALLED FOR BY
THE INSTALLMENT PAPER, AND GUARANTEED THAT THE MAKERS WOULD PERFORM ALL
OBLIGATIONS ASSUMED BY THEM UNDER THAT PAPER, AND THAT IN THE EVENT THE
MAKERS FAILED TO PAY ANY INSTALLMENT WHEN DUE OR TO KEEP ANY OBLIGATION
ASSUMED BY THEM UNDER THE INSTALLMENT PAPER, THE PARTNERSHIP WOULD
REPURCHASE SUCH INSTALLMENT PAPER FROM MINNEHOMA, UPON DEMAND, AT A
PRICE EQUAL TO THE UNPAID BALANCE THEREON. 

MINNEHOMA WAS AUTHORIZED TO CHARGE AGAINST THE PARTNERSHIP'S RESERVE
ACCOUNT ANY SUMS FOR WHICH THE PARTNERSHIP MIGHT BE OR BECOME INDEBTED
TO MINNEHOMA; AND AT SUCH TIMES AS - AFTER THE PAYMENT OF ALL
CONTINGENT LIABILITIES OF THE PARTNERSHIP TO MINNEHOMA - THE AMOUNT
THEN CREDITED TO THE PARTNERSHIP'S RESERVE ACCOUNT EXCEEDED 15% OF THE
AGGREGATE UNPAID BALANCES OF ALL OUTSTANDING INSTALLMENT PAPER SO SOLD
AND PURCHASED, MINNEHOMA WOULD PAY SUCH EXCESS, ONCE EACH MONTH, TO THE
PARTNERSHIP; AND WHEN ALL INSTALLMENT PAPER PURCHASED BY MINNEHOMA FROM
THE PARTNERSHIP HAD BEEN PAID IN FULL, MINNEHOMA WOULD PAY TO THE
PARTNERSHIP THE BALANCE OF ITS RESERVE ACCOUNT. 

FN7  "COLLATERAL ASSIGNMENT. 

"FOR VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY
ACKNOWLEDGED, THE UNDERSIGNED HEREBY SELLS, ASSIGNS, TRANSFERS, AND
CONVEYS UNTO MICHIGAN NATIONAL BANK, OF GRAND RAPIDS, MICHIGAN, ITS
SUCCESSORS, AND ASSIGNS FOREVER, IRREVOCABLY, ALL OF HIS, ITS, OR THEIR
RIGHT, TITLE AND INTEREST IN CERTAIN SUMS OF MONEY NOW ON DEPOSIT OR
THAT MAY HEREAFTER BE DEPOSITED IN THE MICHIGAN NATIONAL BANK, OF GRAND
RAPIDS, MICHIGAN, AND IDENTIFIED AND REPRESENTED BY RESERVE ACCOUNT IN
THE NAME OF THE UNDERSIGNED IN THE MICHIGAN NATIONAL BANK. 

"THIS ASSIGNMENT AND TRANSFER IS MADE AS COLLATERAL SECURITY FOR THE
PAYMENT OF THE DIRECT AND INDIRECT LIABILITY OF THE UNDERSIGNED TO THE
SAID MICHIGAN NATIONAL BANK, OF GRAND RAPIDS, MICHIGAN, AND TO SECURE
THE PAYMENT OF THE SEVERAL NOTES REPRESENTING SAID DIRECT AND INDIRECT
LIABILITY AND ANY RENEWALS THEREOF, OR ANY INSTALLMENT PAYMENT OR
PAYMENTS AND TO SECURE ANY OBLIGATION  ... WHICH THE UNDERSIGNED MAY
OWE TO SAID MICHIGAN NATIONAL BANK, OF GRAND RAPIDS, MICHIGAN. 

"IN THE EVENT OF DEFAULT IN THE PAYMENT OF SAID LIABILITY OR ANY
INSTALLMENT THEREOF, OR ANY OF THE SEVERAL NOTES AT THE TIME WHEN SAME
SHALL FALL DUE OR IN THE PAYMENT OF THE INTEREST THEREON OR ANY PART OF
THE PRINCIPAL OF SAID LIABILITY THEN THE MICHIGAN NATIONAL BANK, OF
GRAND RAPIDS, MICHIGAN, AT THEIR ELECTION, NOTICE OF SAID ELECTION
BEING HEREBY EXPRESSLY WAIVED, MAY APPLY THE TOTAL OF SAID SUMS OF
MONEY REPRESENTED BY SAID RESERVE ACCOUNT AT THE DATE OF ELECTION OR
ANY PART THEREOF TO MEET THE DEFAULT IN THE LIABILITY. 

"WHENEVER THE INDEBTEDNESS SECURED HEREBY IS PAID IN FULL THE
MICHIGAN NATIONAL BANK, OF GRAND RAPIDS, MICHIGAN, SHALL REASSIGN SAID
SUMS OF MONEY REPRESENTED BY SAID RESERVE ACCOUNT ALONG WITH ALL RIGHT,
TITLE AND INTEREST BACK TO THE UNDERSIGNED. 

"IF IN THE OPINION OF THE BANK THE UNDERSIGNED DEALER'S ACCOUNT IS IN
GOOD STANDING, ALL SUMS IN THIS RESERVE ACCOUNT IN EXCESS OF TEN PER
CENT (10%) OF THE GROSS UNPAID BALANCE OF ALL CONTRACTS OUTSTANDING ON
FEBRUARY 28 OF EACH YEAR WILL PROMPTLY BE RETURNED TO THE UNDERSIGNED
DEALER." 

FN8  MIDLAND'S VICE PRESIDENT WHO HANDLED THESE TRANSACTIONS WITH THE
PARTNERSHIP TESTIFIED RELATIVE TO THE PURPOSE OF THE RESERVE AS
FOLLOWS: 

"A.  WELL, WE BUY THIS PAPER FROM ALL OF OUR DEALERS ON A STRAIGHT
ENDORSED BASIS, IN OTHER WORDS, IT'S FULLY RECOURSED.  IF A TRAILER IS
GIVEN TO A NOTE-MAKER AND THE NOTE-MAKER CAN'T PAY FOR IT, THE DEALER
HAS TO TAKE IT BACK, AND IF HE CAN'T PAY US  ...  THE NET PAY-OFF ON
THE TRAILER, WE WOULD TAKE THE RESERVE MONEY TO LIQUIDATE THE
ACCOUNT." 

FN9  THE RECORD IN THE HANSEN CASE SHOWS THAT THE CONDITIONAL SALE
CONTRACTS WERE MADE BETWEEN THE DEALER AND THE PURCHASER OF THE
VEHICLE, AND THAT THE LATTER ACKNOWLEDGED TO THE DEALER "DELIVERY AND
ACCEPTANCE OF THE AUTOMOBILE IN GOOD ORDER" (SEE NOTE 2); THAT THE
DEALER CONSISTENTLY ASSIGNED HIS CONDITIONAL SALE CONTRACTS TO GMAC BY
EXECUTING THE FORM OF ASSIGNMENT PRINTED AT THE FOOT OF THE FORM AND
SENDING THE SAME TO GMAC FOR PURCHASE, GUARANTEEING PAYMENT OF THE FULL
AMOUNT REMAINING UNPAID THEREON AND COVENANTING THAT IF DEFAULT BE MADE
IN THE PAYMENT OF ANY INSTALLMENT THEREOF TO PAY THE FULL AMOUNT THEN
UNPAID TO GMAC UPON DEMAND (SEE NOTE 3).    THE RECORD IN THE GLOVER
CASE SHOWS THAT THE NOTES AND MORTGAGES WERE PAYABLE TO THE DEALER AND
THAT, UPON A SALE OF THEM, HE ENDORSED THEM, IN SOME CASES WITHOUT
RECOURSE AND IN OTHERS WITH "FULL RECOURSE," AND FORWARDED THEM TO
C.I.T. FOR PURCHASE, SUBJECT, OF COURSE, TO THE VARIOUS OBLIGATIONS HE
HAD UNDERTAKEN TO C.I.T. IN RESPECT THERETO THAT ARE SHOWN IN NOTE 5. 

THE RECORD IN THE BARID CASE SHOWS THAT THE PARTNERSHIP ENTERED INTO
CONTRACTS WITH ITS CUSTOMERS, TAKING ASSIGNABLE OR NEGOTIABLE
INSTRUMENTS RETAINING DEFEASIBLE TITLE TO OR A LIEN ON THE TRAILERS
EVIDENCING AND SECURING THE UNPAID PURCHASE PRICE OF THE TRAILERS; THAT
IT ASSIGNED ITS CONDITIONAL SALE CONTRACTS TO MINNEHOMA WITH THE
GUARANTIES AND COVENANTS SHOWN IN NOTE 6; THAT IT ENDORSED WITH FULL
RECOURSE, SOLD AND DELIVERED TO MICHIGAN NATIONAL BANK CERTAIN OF ITS
NOTES AND MORTGAGES, UNDER THE FURTHER GUARANTIES CONTAINED IN THE
"COLLATERAL ASSIGNMENT" SHOWN IN NOTE 7; AND THAT IT ALSO ENDORSED WITH
FULL RECOURSE, SOLD AND DELIVERED OTHER OF ITS NOTES AND MORTGAGES TO
MIDLAND, AND AUTHORIZED IT TO RETAIN A PERCENTAGE OF THE PURCHASE PRICE
TO SECURE PERFORMANCE OF ITS ENDORSER LIABILITIES TO MIDLAND.  SEE NOTE
8. 

FN10  CF. OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716, 729;
DOUGLAS V. WILLCUTS, 296 U.S. 1, 9; TRESSLER V. COMMISSIONER, 228 F.2D
356, 359, N. 6 (C.A. 9TH CIR.). 

FN11  SECTION 42(A) (AS AMENDED BY SEC. 114, REVENUE ACT OF 1941, C.
412, 55 STAT. 687), 26 U.S.C. (1952 ED.)  SEC.  42, SO FAR AS
PERTINENT, PROVIDES:

"(A)  GENERAL RULE - THE AMOUNT OF ALL ITEMS OF GROSS INCOME SHALL BE
INCLUDED IN THE GROSS INCOME FOR THE TAXABLE YEAR IN WHICH RECEIVED BY
THE TAXPAYER, UNLESS, UNDER METHODS OF ACCOUNTING PERMITTED UNDER
DIFFERENT PERIOD." 

FN12  THE FIRST PUBLICATION OF ITS VIEWS WAS IN G.C.M. 9571, X-2 CUM.
BULL.  153 (1931).  ITS MOST RECENTLY PUBLISHED VIEWS ON THE SUBJECT
ARE CONTAINED IN REV. RUL. 57-2, 1957-1 CUM. BULL.  17, WHICH, SO FAR
AS PERTINENT, PROVIDES: 

"AMOUNTS WITHHELD BY BANKS OR FINANCE COMPANIES TO COVER POSSIBLE
LOSSES ON NOTES PURCHASED FROM DEALERS CONSTITUTE INCOME TO DEALERS
EMPLOYING THE ACCRUAL METHOD OF ACCOUNTING, TO THE EXTENT OF THEIR
INTEREST THEREIN AT THE TIME THE AMOUNTS ARE RECORDED ON THE BOOKS OF
THE BANK OR FINANCE COMPANY AS A LIABILITY TO THE DEALER  ...  ." 

FN13  AS TO THE TERM "FINANCE CHARGES," THE RECORDS AND BRIEFS IN
THESE CASES MAKE ONE THING CLEAR: IT IS NOT A TERM OF ART. ITS MEANING
APPEARS TO BE BOTH ERRATIC AND ELASTIC.  NOR HAVE WE BEEN TOLD BY ANY
ONE OF THESE TAXPAYERS WHAT HE INTENDS TO BE INCLUDED IN HIS USE OF THE
TERM. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :

















LEV V. UNITED STATES 360 U.S. 470 


NO. 435.  ARGUED APRIL 27-28, 1959.  - DECIDED JUNE 22, 1959.* -
JUDGMENT AFFIRMED BY AN EQUALLY DIVIDED COURT.  - REPORTED BELOW:  258
F.2D 9. 

*TOGETHER WITH NO. 436, WOOL V. UNITED STATES, AND NO. 437, RUBIN V.
UNITED STATES, ALSO ON CERTIORARI TO THE SAME COURT. 


LEV V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :










NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. BENNETT
360 U.S. 471 


NO. 757.  DECIDED JUNE 22, 1959. 


CASE CHALLENGING CONSTITUTIONALITY OF STATE STATUTE SHOULD NOT
AUTOMATICALLY BE REFERRED BY FEDERAL DISTRICT COURT TO STATE COURTS FOR
CONSTRUCTION OF STATUTE. 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., V.
BENNETT, ATTORNEY GENERAL OF ARKANSAS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF ARKANSAS. 

PER CURIAM. 

WHEN THE VALIDITY OF A STATE STATUTE, CHALLENGED UNDER THE UNITED
STATES CONSTITUTION, IS PROPERLY FOR ADJUDICATION BEFORE A UNITED
STATES DISTRICT COURT, REFERENCE TO THE STATE COURTS FOR CONSTRUCTION
OF THE STATUTE SHOULD NOT AUTOMATICALLY BE MADE.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS FOR CONSIDERATION IN LIGHT OF
HARRISON V. N.A.A.C.P., ANTE, P. 167. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

WHILE I AGREE THAT THE CASE SHOULD BE REMANDED TO THE DISTRICT COURT,
I THINK THAT COURT SHOULD BE DIRECTED TO PASS ON THE CONSTITUTIONAL
ISSUES PRESENTED WITHOUT PRIOR REFERENCE TO THE STATE COURTS.   MY
REASONS ARE STATED IN MY DISSENT IN HARRISON V. N.A.A.C.P., ANTE, P.
179. 
..END :


















COFIELD V. UNITED STATES 360 U.S. 472 


NO. 677, MISC.  DECIDED JUNE 22, 1959.  - REPORTED BELOW:  263 F.2D
686. 


CERTIORARI GRANTED; SENTENCE VACATED; AND CAUSE REMANDED WITH
INSTRUCTIONS TO ALLOW PETITIONER TO WITHDRAW HIS PLEA OF GUILTY AND
PLEAD ANEW. 

COFIELD V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

IN VIEW OF ALL THE CIRCUMSTANCES UNDER WHICH THIS DEFENDANT ENTERED A
PLEA OF GUILTY AND THE PLEA WAS ACCEPTED, THE PETITION IS GRANTED AND
THE SENTENCE IS VACATED AND THE CAUSE REMANDED WITH INSTRUCTIONS TO
ALLOW PETITIONER TO WITHDRAW HIS PLEA OF GUILTY AND PLEAD ANEW. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT, BELIEVING THAT THIS
CASE SHOULD NOT BE DISPOSED OF WITHOUT PLENARY CONSIDERATION. 
..END :






BELLEW V. MISSISSIPPI 360 U.S. 473 


NO. 806.  DECIDED JUNE 22, 1959.  - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  - MISS.  - , 106 SO. 2D 146. 


BELLEW ET AL. V. MISSISSIPPI. 

APPEAL FROM AND PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT
OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED AND THE PETITION FOR WRIT OF CERTIORARI IS
DENIED. 
..END :
















MCDANIEL V. ROSE 360 U.S. 473 


NO. 830, MISC.  DECIDED JUNE 22, 1959.  - APPEAL DISMISSED.  - REPORTED
BELOW:  315 S.W.2D 368. 


MCDANIEL ET AL. V. ROSE. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, ELEVENTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :

















BURNS V. OHIO 360 U.S. 252 


NO. 581.  ARGUED MAY 18, 1959.  - DECIDED JUNE 15, 1959.  - JUDGMENT
VACATED AND CAUSE REMANDED. 


OHIO ACCORDS TO EACH PERSON WHOSE CONVICTION OF A FELONY HAS BEEN
AFFIRMED BY ITS COURT OF APPEALS THE RIGHT TO APPLY TO ITS SUPREME
COURT FOR LEAVE TO APPEAL, AND THAT COURT HAS JURISDICTION TO GRANT
SUCH LEAVE AND HEAR SUCH APPEALS IN ITS DISCRETION.  AFTER PETITIONER'S
CONVICTION OF A FELONY HAD BEEN AFFIRMED BY THE OHIO COURT OF APPEALS,
HE GAVE NOTICE OF APPEAL AND ATTEMPTED TO FILE IN THE OHIO SUPREME
COURT MOTIONS FOR LEAVE TO APPEAL AND TO PROCEED IN FORMA PAUPERIS,
SUPPORTED BY AN AFFIDAVIT OF POVERTY.  THESE PAPERS WERE RETURNED TO
HIM BY THE CLERK OF THE OHIO SUPREME COURT WITH A LETTER ADVISING HIM,
IN EFFECT, THAT THE COURT HAD DETERMINED ON NUMEROUS OCCASIONS THAT
SUCH PAPERS COULD NOT BE FILED WITHOUT PAYMENT OF A DOCKET FEE.  IN
THIS COURT, COUNSEL FOR THE STATE CONCEDED THAT THE CLERK'S LETTER IS
"IN REALITY AND IN EFFECT" THE JUDGMENT OF THE SUPREME COURT OF OHIO. 
HELD: 

1.  SINCE THE OHIO SUPREME COURT HAD SANCTIONED ITS CLERK'S WELL
PUBLICIZED AND UNIFORM PRACTICE OF RETURNING PAUPER'S APPLICATIONS WITH
FORM LETTERS SUCH AS THAT USED IN THIS CASE, THIS AMOUNTED TO A
DELEGATION TO THE CLERK OF A MATTER INVOLVING NO DISCRETION, AND IT
SUFFICED TO MAKE THE CLERK'S LETTER A "FINAL JUDGMENT" OF OHIO'S
HIGHEST COURT WITHIN THE MEANING OF 28 U.S.C. SEC. 1257.   PP. 256
257. 

2.  SINCE A PERSON WHO IS NOT INDIGENT MAY HAVE THE OHIO SUPREME
COURT CONSIDER HIS APPLICATION FOR LEAVE TO APPEAL FROM A FELONY
CONVICTION, DENIAL OF THE SAME RIGHT TO THIS INDIGENT PETITIONER SOLELY
BECAUSE HE WAS UNABLE TO PAY THE FILING FEE VIOLATED THE FOURTEENTH
AMENDMENT.  GRIFFIN V. ILLINOIS, 351 U.S. 12.  PP. 257-258. 

(A)  THAT PETITIONER HAD ALREADY RECEIVED ONE APPELLATE REVIEW OF HIS
CONVICTION IN OHIO DOES NOT REQUIRE A DIFFERENT RESULT, SINCE OTHERS
SIMILARLY SITUATED WHO COULD PAY THE FILING FEE COULD HAVE THE STATE'S
SUPREME COURT CONSIDER THEIR APPLICATIONS FOR LEAVE TO APPEAL.  P.
257. 

(B)  THAT THE GRANTING OF LEAVE TO APPEAL IS DISCRETIONARY WITH THE
OHIO SUPREME COURT IN A CASE SUCH AS THIS DOES NOT REQUIRE A DIFFERENT
RESULT, SINCE THAT COURT DID NOT PERMIT PETITIONER TO INVOKE ITS
DISCRETION.  PP. 257-258. 

BURNS V. OHIO. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER A STATE MAY
CONSTITUTIONALLY REQUIRE THAT AN INDIGENT DEFENDANT IN A CRIMINAL CASE
PAY A FILING FEE BEFORE PERMITTING HIM TO FILE A MOTION FOR LEAVE TO
APPEAL IN ONE OF ITS COURTS. 

AFTER A TRIAL IN OHIO IN 1953, THE PETITIONER WAS CONVICTED OF
BURGLARY AND SENTENCED TO LIFE IMPRISONMENT.  (FN1)  THAT SAME YEAR HIS
CONVICTION WAS AFFIRMED WITHOUT OPINION BY THE OHIO COURT OF APPEALS. 
PETITIONER IMMEDIATELY FILED A NOTICE OF APPEAL IN THE COURT OF APPEALS
BUT DID NOTHING FURTHER UNTIL 1957, WHEN HE SOUGHT TO FILE A COPY OF
THE EARLIER NOTICE OF APPEAL AND A MOTION FOR LEAVE TO APPEAL IN THE
SUPREME COURT OF OHIO.  (FN2)  TO THESE PAPERS PETITIONER ATTACHED AN
AFFIDAVIT OF POVERTY WHICH DECLARED THAT HE WAS "WITHOUT SUFFICIENT
FUNDS WITH WHICH TO PAY THE COSTS FOR DOCKET AND FILING FEES IN THIS
CAUSE OF ACTION."  HE ALSO ATTACHED A MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS. 

THE CLERK OF THE SUPREME COURT OF OHIO REFUSED TO FILE THE PAPERS. 
HE RETURNED THEM WITH THE FOLLOWING LETTER: 

"THIS WILL SERVE TO ACKNOWLEDGE RECEIPT OF YOUR MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS, MOTION FOR LEAVE TO APPEAL AND NOTICE OF
APPEAL. 

"WE MUST ADVISE THAT THE SUPREME COURT HAS DETERMINED ON NUMEROUS
OCCASIONS THAT THE DOCKET FEE, REQUIRED BY SECTION 1512 OF THE GENERAL
CODE OF OHIO, AND THE RULES OF PRACTICE OF THE SUPREME COURT, TAKES
PRECEDENCE OVER ANY OTHER STATUTE WHICH MAY ALLOW A PAUPER'S AFFIDAVIT
TO BE FILED IN LIEU OF A DOCKET FEE.  FOR THAT REASON WE CANNOT HONOR
YOUR REQUEST. 

"WE ARE RETURNING THE ABOVE MENTIONED PAPERS TO YOU HEREWITH."  (FN3) 

UNDER ART. IV, SEC. 2, OF THE STATE CONSTITUTION, THE SUPREME COURT
OF OHIO HAS APPELLATE JURISDICTION IN MANY TYPES OF CASES INCLUDING
THOSE "INVOLVING QUESTIONS ARISING UNDER THE CONSTITUTION OF THE UNITED
STATES OR OF THIS STATE" AND "CASES OF FELONY ON LEAVE FIRST
OBTAINED."  (FN4)  SINCE BURGLARY IS A FELONY IN OHIO, (FN5) THE
SUPREME COURT HAD JURISDICTION TO REVIEW PETITIONER'S CONVICTION AND
PETITIONER SOUGHT TO FILE HIS MOTION ASKING LEAVE TO APPEAL.  (FN6)
THE FILING FEE REQUIRED BY THE SUPREME COURT ON A MOTION FOR LEAVE TO
APPEAL IS $20 (FN7) AND IF THAT FEE IS PAID, AND THE PAPERS ARE
OTHERWISE PROPER, THE MOTION WILL BE CONSIDERED WITH THE POSSIBILITY
THAT LEAVE TO APPEAL WILL BE GRANTED. 

WE GRANTED CERTIORARI AND LEAVE TO PROCEED IN FORMA PAUPERIS.  358
U.S. 919.  SUBSEQUENTLY, AN ORDER WAS ENTERED, 358 U.S. 943, EXPRESSLY
LIMITING THE GRANT OF CERTIORARI TO THE QUESTION POSED BY PETITIONER IN
HIS PRO SE PETITION WHICH IS RESTATED AT THE OUTSET OF THIS OPINION. 
(FN8) 

THE STATE'S COMMENDABLE FRANKNESS IN THIS CASE HAS SIMPLIFIED THE
ISSUES.  IT HAS ACKNOWLEDGED THAT THE CLERK'S LETTER TO PETITIONER IS
"IN REALITY AND IN EFFECT" THE JUDGMENT OF THE SUPREME COURT.  ONLY
RECENTLY, THAT COURT HAD OCCASION TO COMMENT ON THE FUNCTION OF ITS
CLERK IN THESE WORDS: 

"IT IS THE DUTY OF THE CLERK OF THIS COURT, IN THE ABSENCE OF
INSTRUCTIONS FROM THE COURT TO THE CONTRARY, TO ACCEPT FOR FILING ANY
PAPER PRESENTED TO HIM, PROVIDED SUCH PAPER IS NOT SCURRILOUS OR
OBSCENE, IS PROPERLY PREPARED AND IS ACCOMPANIED BY THE REQUISITE
FILING FEE."  (FN9) 

IN A COMPANION CASE, THE COURT OBSERVED THAT ITS CLERK "ACTS AS THE
COURT IN CARRYING OUT ITS INSTRUCTIONS."  (FN10)  THE STATE REPRESENTED
THAT THE CLERK HAD BEEN INSTRUCTED NOT TO DOCKET ANY PAPERS WITHOUT
FEES AND ALSO THAT THE SUPREME COURT HAD NOT DEVIATED FROM ITS PRACTICE
IN THIS RESPECT.  MOREOVER, THE STATE ASSERTED THAT IT WAS IMPOSSIBLE
FOR PETITIONER TO FILE ANY ACTION AT ALL IN THE SUPREME COURT WITHOUT
PAYING THE FEE IN ADVANCE.  THERE IS NO SHOWING THAT THESE INSTRUCTIONS
HAVE BEEN MODIFIED OR RESCINDED IN ANY WAY AND THE SUPREME COURT HAS
SANCTIONED THE CLERK'S WELL-PUBLICIZED PROCEDURE OF RETURNING PAUPER'S
APPLICATIONS, WITHOUT EXCEPTION, WITH THE ABOVE-QUOTED FORM LETTER. 
THIS DELEGATION TO THE CLERK OF A MATTER INVOLVING NO DISCRETION
CLEARLY SUFFICES TO MAKE THE CLERK'S LETTER A FINAL JUDGMENT OF OHIO'S
HIGHEST COURT, AS REQUIRED BY 28 U.S.C.  SEC. 1257. 

ALTHOUGH THE STATE ADMITS THAT PETITIONER "IN TRUTH AND IN FACT" IS A
PAUPER, IT PRESSES SEVERAL ARGUMENTS WHICH IT CLAIMS DISTINGUISH
GRIFFIN V. ILLINOIS, 351 U.S. 12, AND JUSTIFY THE OHIO PRACTICE. 
FIRST, THE STATE ARGUES THAT PETITIONER RECEIVED ONE APPELLATE REVIEW
OF HIS CONVICTION IN OHIO, WHILE IN GRIFFIN, ILLINOIS HAD LEFT THE
DEFENDANT WITHOUT ANY JUDICIAL REVIEW OF HIS CONVICTION.  THIS IS A
DISTINCTION WITHOUT A DIFFERENCE FOR, AS GRIFFIN HOLDS, ONCE THE STATE
CHOOSES TO ESTABLISH APPELLATE REVIEW IN CRIMINAL CASES, IT MAY NOT
FORECLOSE INDIGENTS FROM ACCESS TO ANY PHASE OF THAT PROCEDURE BECAUSE
OF THEIR POVERTY.  351 U.S., AT 18, 22.  THIS PRINCIPLE IS NO LESS
APPLICABLE WHERE THE STATE HAS AFFORDED AN INDIGENT DEFENDANT ACCESS TO
THE FIRST PHASE OF ITS APPELLATE PROCEDURE BUT HAS EFFECTIVELY
FORECLOSED ACCESS TO THE SECOND PHASE OF THAT PROCEDURE SOLELY BECAUSE
OF HIS INDIGENCY. 

SINCE GRIFFIN PROCEEDED UPON THE ASSUMPTION THAT REVIEW IN THE
ILLINOIS SUPREME COURT WAS A MATTER OF RIGHT, 351 U.S., AT 13, OHIO
SEEKS TO DISTINGUISH GRIFFIN ON THE FURTHER GROUND THAT LEAVE TO APPEAL
TO THE SUPREME COURT OF OHIO IS A MATTER OF DISCRETION.  BUT THIS
ARGUMENT MISSES THE CRUCIAL SIGNIFICANCE OF GRIFFIN.  IN OHIO, A
DEFENDANT WHO IS NOT INDIGENT MAY HAVE THE SUPREME COURT CONSIDER ON
THE MERITS HIS APPLICATION FOR LEAVE TO APPEAL FROM A FELONY
CONVICTION.  BUT AS THAT COURT HAS INTERPRETED SEC. 1512 AND ITS RULES
OF PRACTICE, AN INDIGENT DEFENDANT IS DENIED THAT OPPORTUNITY.  THERE
IS NO RATIONAL BASIS FOR ASSUMING THAT INDIGENTS' MOTIONS FOR LEAVE TO
APPEAL WILL BE LESS MERITORIOUS THAN THOSE OF OTHER DEFENDANTS. 
INDIGENTS MUST, THEREFORE, HAVE THE SAME OPPORTUNITIES TO INVOKE THE
DISCRETION OF THE SUPREME COURT OF OHIO. 

THE STATE'S ACTION IN THIS CASE IN SOME WAYS IS MORE FINAL AND
DISASTROUS FROM THE DEFENDANT'S POINT OF VIEW THAN WAS THE GRIFFIN
SITUATION.  AT LEAST IN GRIFFIN, THE DEFENDANT MIGHT HAVE RAISED IN THE
SUPREME COURT ANY CLAIMS THAT HE HAD THAT WERE APPARENT ON THE BARE
RECORD, THOUGH TRIAL ERRORS COULD NOT BE RAISED.  HERE, THE ACTION OF
THE STATE HAS COMPLETELY BARRED THE PETITIONER FROM OBTAINING ANY
REVIEW AT ALL IN THE SUPREME COURT OF OHIO.  THE IMPOSITION BY THE
STATE OF FINANCIAL BARRIERS RESTRICTING THE AVAILABILITY OF APPELLATE
REVIEW FOR INDIGENT CRIMINAL DEFENDANTS HAS NO PLACE IN OUR HERITAGE OF
EQUAL JUSTICE UNDER LAW. 

WHAT WAS SAID IN GRIFFIN, MIGHT WELL BE SAID HERE:  "WE ARE CONFIDENT
THAT THE STATE WILL PROVIDE CORRECTIVE RULES TO MEET THE PROBLEM WHICH
THIS CASE LAYS BARE."  351 U.S., AT 20.  (FN11) 

THE JUDGMENT BELOW IS VACATED AND THE CAUSE IS REMANDED TO THE
SUPREME COURT OF OHIO FOR FURTHER ACTION NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  PETITIONER WAS ALSO CONVICTED OF LARCENY AND SENTENCED TO A TERM
OF SEVEN YEARS TO BE SERVED CONCURRENTLY WITH THE BURGLARY SENTENCE. 

FN2  DESPITE THE PASSAGE OF YEARS THE APPEAL WAS TIMELY.  STATE V.
GRISAFULLI, 135 OHIO ST. 87, 19 N.E.2D 645. 

FN3  THE RULES OF PRACTICE OF THE SUPREME COURT OF OHIO OBVIOUSLY
REFERRED TO IN THE CLERK'S LETTER ARE RULES VII AND XVII. 

SEC. 1512 (REV. CODE SEC. 2503.17): 

"THE CLERK OF THE SUPREME COURT SHALL CHARGE AND COLLECT THE
FOLLOWING FEES: 

"(A)  FOR EACH CASE ENTERED UPON THE MINUTE BOOK, INCLUDING ORIGINAL
ACTIONS IN SAID COURT, APPEAL PROCEEDINGS FILED AS OF RIGHT,  ...  FOR
EACH MOTION ...  FOR LEAVE TO FILE A NOTICE OF APPEAL IN CRIMINAL CASES
...  TWENTY DOLLARS  ...  . 

"(B)  FOR FILING ASSIGNMENTS OF ERROR  ...  UPON ALLOWANCE OF A
MOTION FOR LEAVE TO APPEAL  ... FIVE DOLLARS  ...  . 

     *         *         *         *         * 

"SUCH FEES MUST BE PAID TO THE CLERK BY THE PARTY INVOKING THE ACTION
OF THE COURT, BEFORE THE CASE OR MOTION IS DOCKETED AND SHALL BE TAXED
AS COSTS AND RECOVERED FROM THE OTHER PARTY, IF THE PARTY INVOKING THE
ACTION SUCCEEDS, UNLESS THE COURT OTHERWISE DIRECTS." 

RULE VII: 

"SECTION 1.  FELONY CASES.  IN FELONY CASES, WHERE LEAVE TO APPEAL IS
SOUGHT, A MOTION FOR LEAVE TO APPEAL SHALL BE FILED WITH THE CLERK OF
THIS COURT ALONG WITH A COPY OF THE NOTICE OF APPEAL WHICH WAS FILED IN
THE COURT OF APPEALS, UPON PAYMENT OF THE DOCKET FEE REQUIRED BY

     *         *         *         *         * 

"SECTION 4.  APPEAL AS OF RIGHT.  IN ANY CRIMINAL CASE, WHETHER
FELONY OR MISDEMEANOR, IF THE NOTICE OF APPEAL SHOWS THAT THE APPEAL
INVOLVES A DEBATABLE QUESTION ARISING UNDER THE CONSTITUTION OF THE
UNITED STATES OR OF THIS STATE, THE APPEAL MAY BE DOCKETED UPON FILING
THE TRANSCRIPT OF THE RECORD AND ANY ORIGINAL PAPERS IN THE CASE, UPON
PAYMENT OF THE FEE REQUIRED BY SECTION 2503.17, REVISED CODE." 

RULE XVII: 

"THE DOCKET FEES FIXED BY SECTION 2503.17, REVISED CODE, MUST BE PAID
IN ADVANCE  ...  ." 

FN4  SEE ALSO OHIO REV. CODE SECS. 2953.02, 2953.08, WHICH IMPLEMENT
THIS CONSTITUTIONAL PROVISION. 

FN5  SEE OHIO REV. CODE SECS. 2907.09, 1.06, 1.05. 

FN6  IN HIS NOTICE OF APPEAL FILED IN THE COURT OF APPEALS,
PETITIONER STATED "THIS APPEAL IS ON QUESTIONS OF LAW AND IS TAKEN ON
CONDITION THAT A MOTION FOR LEAVE TO APPEAL BE ALLOWED."  BUT IN THE
MOTION FOR LEAVE TO APPEAL TO THE SUPREME COURT, PETITIONER STATED,
AMONG OTHER CONTENTIONS, THAT HIS CONVICTION CONFLICTED WITH HIS
"CONSTITUTIONAL GUARANTEES OF THE FOURTEENTH AMENDMENT (14) TO THE
CONSTITUTION OF THE UNITED STATES; AND, ARTICLE I, SECTION 10 OF THE
CONSTITUTION OF THE STATE OF OHIO."  THIS MIGHT INDICATE THAT
PETITIONER WAS CLAIMING AN APPEAL AS OF RIGHT TO THE SUPREME COURT. 
HOWEVER, SINCE PETITIONER HAS CONSISTENTLY CHARACTERIZED HIS APPEAL AS
ONE WHICH REQUIRES LEAVE, WE SO CONSIDER IT HERE. 

FN7  SEE N. 3, SUPRA. 

FN8  AS POSED BY PETITIONER, THE QUESTION WAS: 

"WHETHER IN A PROSECUTION FOR BURGLARY, THE DUE PROCESS CLAUSE, AND
THE EQUAL PROTECTION CLAUSE, OF THE FOURTEENTH (14) AMENDMENT TO THE
UNITED STATES CONSTITUTION ARE VIOLATED BY THE REFUSAL OF THE SUPREME
COURT OF OHIO, TO FILE THE AFOREMENTIONED LEGAL PROCEEDINGS, BECAUSE
PETITIONER WAS UNABLE TO SECURE THE COSTS." 

FN9  STATE EX REL. WANAMAKER V. MILLER, 164 OHIO ST. 176, 177, 128
N.E.2D 110. 

FN10  STATE EX REL. WANAMAKER V. MILLER, 164, OHIO ST. 174, 175, 128
N.E.2D 108, 109. 

FN11 SHORTLY AFTER THIS COURT'S DECISION IN GRIFFIN V. ILLINOIS,
SUPRA, THE ILLINOIS SUPREME COURT PROMULGATED RULE 65-1, WHICH PROVIDES
IN PART THAT ANY PERSON SENTENCED TO IMPRISONMENT WHO IS "WITHOUT
FINANCIAL MEANS WITH WHICH TO OBTAIN THE TRANSCRIPT OF THE PROCEEDINGS
AT HIS TRIAL" WILL RECEIVE A TRANSCRIPT IF IT IS "NECESSARY TO PRESENT
FULLY THE ERRORS RECITED IN THE PETITION  ... ." 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

IT IS THE SPECIAL OBLIGATION OF THIS COURT STRICTLY TO OBSERVE THE
LIMITS OF ITS JURISDICTION.  NO MATTER HOW TEMPTING THE APPEAL OF A
PARTICULAR SITUATION, WE SHOULD NOT INDULGE IN DISREGARD OF THE BOUNDS
BY WHICH CONGRESS HAS DEFINED OUR POWER OF APPELLATE REVIEW.  THERE
WILL BE TIME ENOUGH TO ENFORCE THE CONSTITUTIONAL RIGHT, IF RIGHT IT
BE, WHICH THE COURT NOW FINDS THE PETITIONER TO POSSESS WHEN IT IS DULY
PRESENTED FOR JUDICIAL DETERMINATION HERE, AND THERE ARE AMPLE MODES
OPEN TO THE PETITIONER FOR ASSERTION OF SUCH A CLAIM IN A WAY TO
REQUIRE OUR ADJUDICATION. 

THE APPELLATE POWER OF THIS COURT TO REVIEW LITIGATION ORIGINATING IN
A STATE COURT CAN COME INTO OPERATION ONLY IF THE JUDGMENT TO BE
REVIEWED IS THE FINAL JUDGMENT OF THE HIGHEST COURT OF THE STATE.  THAT
A JUDGMENT IS THE PREREQUISITE FOR THE APPELLATE REVIEW OF THIS COURT
IS AN INGREDIENT OF THE CONSTITUTIONAL REQUIREMENT OF THE "CASES" OR
"CONTROVERSIES" TO WHICH ALONE "THE JUDICIAL POWER SHALL EXTEND."  U.S.
CONST., ART. III, SEC. 2.  THAT IT BE A "FINAL JUDGMENT" WAS MADE A
PREREQUISITE BY THE VERY ACT WHICH ESTABLISHED THIS COURT IN 1789.  ACT
OF SEPTEMBER 24, 1789, SEC. 25, 1 STAT. 85, NOW 28 U.S.C. SEC. 1257. 
"CLOSE OBSERVANCE OF THIS LIMITATION UPON THE COURT IS NOT REGARD FOR A
STRANGLING TECHNICALITY."  REPUBLIC NATURAL GAS CO. V. OKLAHOMA, 334
U.S. 62, 67.  SUCH HAS BEEN THE UNDEVIATING CONSTITUTIONAL, LEGISLATIVE
AND JUDICIAL COMMAND BINDING ON THIS COURT AND RESPECTED BY IT WITHOUT
EXCEPTION OR QUALIFICATION TO THIS VERY DAY. 

THE REQUISITES OF SUCH A FINAL JUDGMENT ARE NOT MET BY WHAT A STATE
COURT MAY DEEM TO BE A CASE OR JUDGMENT IN THE EXERCISE OF THE STATE
COURT'S JURISDICTION.  SEE TYLER V. JUDGES, 179 U.S. 405; DOREMUS V.
BOARD OF EDUCATION, 342 U.S. 429.  NOR CAN CONSENT OF THE PARTIES TO
THE DETERMINATION OF A CAUSE BY THIS COURT OVERLEAP THE JURISDICTIONAL
LIMITATIONS WHICH ARE PART OF THIS COURT'S BEING.  LITIGANTS CANNOT
GIVE THIS COURT POWER WHICH THE CONSTITUTION AND CONGRESS HAVE
WITHHELD.  MANSFIELD, C.&L.M.R. CO. V. SWAN, 111 U.S. 379, 382.  THE
PRESIDENT OF THE UNITED STATES HIMSELF CANNOT SECURE FROM THIS COURT
DETERMINATION OF A LEGAL QUESTION EXCEPT WHEN SUCH A QUESTION DULY
ARISES IN THE COURSE OF ADJUDICATION OF A CASE OR CONTROVERSY, EVEN
THOUGH HE ASKS FOR NEEDED HELP IN A GREAT NATIONAL EMERGENCY.  SEE
PRESIDENT WASHINGTON'S QUESTIONS IN 33 WRITINGS OF WASHINGTON
(FITZPATRICK ED. 1940) 15-19, 28, AND THE CORRESPONDENCE BETWEEN
SECRETARY OF STATE THOMAS JEFFERSON AND CHIEF JUSTICE JAY, IN 3
CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY (JOHNSTON ED. 1891) 486
489.    AS THE IMPORTANCE OF THE INTERROGATOR AND THE SIGNIFICANCE OF
THE QUESTION CONFER NO POWER UPON THIS COURT TO RENDER ADVISORY
OPINIONS, A COMPASSIONATE APPEAL CANNOT ENDOW IT WITH JURISDICTION TO
REVIEW A JUDGMENT WHICH IS NOT FINAL.  ONE'S SYMPATHY, HOWEVER DEEP,
WITH PETITIONER'S CLAIM CANNOT DISPENSE WITH THE PRECONDITION OF A
FINAL JUDGMENT FOR EXERCISING OUR JUDICIAL POWER.  IF THE HISTORY OF
THIS COURT TEACHES ONE LESSON AS IMPORTANT AS ANY, IT IS THE REGRETFUL
CONSEQUENCES OF STRAYING OFF THE CLEAR PATH OF ITS JURISDICTION TO
REACH A DESIRED RESULT.  THIS COURT CANNOT JUSTIFY A YIELDING TO THE
TEMPTATION TO CUT CORNERS IN DISREGARD OF WHAT THE CONSTITUTION AND
CONGRESS COMMAND.  BURNS HAS OTHER PATHS TO THIS COURT TO ASSERT WHAT,
FORSOOTH, ALL OF US MAY DEEM A FAILURE BY OHIO TO ACCORD HIM - A
CONSTITUTIONAL RIGHT - OTHER PATHS BESIDES OUR INDIFFERENCE TO THE
RULES BY WHICH WE ARE BOUND.  SPECIFICALLY, HE HAS FOUR OBVIOUS
REMEDIES FOR SECURING AN ASCERTAINMENT AND ENFORCEMENT OF HIS
CONSTITUTIONAL CLAIM BY THIS COURT WITHOUT HAVING THIS COURT TREAT THE
LETTER OF A CLERK OF A COURT AS A COURT'S JUDGMENT.  FOR ALTHOUGH THE
CAPTION OF THE CASE WOULD INDICATE THAT OUR REVIEW WAS OF THE SUPREME
COURT OF OHIO, IN FACT THE REVIEW CAN ONLY BE OF THE REFUSAL OF THE
CLERK OF THAT COURT TO DOCKET PETITIONER'S PAPERS UNTIL A TWENTY-DOLLAR
DOCKET FEE WAS PAID.  THE SUPREME COURT OF OHIO WAS NOT ASKED TO
CONSIDER THE APPEAL, NOR DID IT ITSELF REFUSE TO DO SO.  THE DECISIONS
IN STATE EX REL. DAWSON V. ROBERTS, 165 OHIO ST. 341, 135 N.E.2D 409,
AND STATE EX REL. WANAMAKER V. MILLER, 164 OHIO ST. 174 AND 176, 128
N.E.2D 108 AND 110, MANDAMUS DENIED SUB NOM.  WANAMAKER V. SUPREME
COURT OF OHIO, 350 U.S. 881, DEMONSTRATE CONCLUSIVELY THAT THE OHIO
COURT HAS RETAINED THE ULTIMATE POWER TO DETERMINE WHAT PAPERS WILL BE
PERMITTED TO BE FILED.  THERE IS NOT THE REMOTEST INDICATION IN THE
RECORD THAT THIS PETITIONER'S CLAIM TO FILE HIS APPEAL WITHOUT PAYING
THE CUSTOMARY FILING FEE, BECAUSE OF INDIGENCE, WAS BROUGHT TO THE
ATTENTION OF THE OHIO SUPREME COURT, NOR IS THERE ANY SHOWING IN THE
RECORD THAT IN WRITING HIS LETTER THE CLERK WAS ACTING AT THE SPECIFIC
BEHEST OF THAT COURT IN THIS CASE. 

(1)  PETITIONER MAY MAKE A DIRECT APPLICATION ADDRESSED IN TERMS TO
THE JUDGES OF THE SUPREME COURT OF OHIO.  SUCH APPLICATIONS INFORMALLY
EXPRESSED BY WAY OF LETTERS ARE FREQUENTLY ADDRESSED TO THIS COURT, AND
ARE ACCEPTED HERE AS THE BASIS FOR JUDGMENTS BY THIS COURT.  WE ARE NOT
TO ASSUME THAT AN APPLICATION SO ADDRESSED TO THE JUDGES OF THE OHIO
SUPREME COURT WILL NOT BE TRANSMITTED TO THAT COURT AND ACTED UPON BY
IT.  THIS IS NOT MERELY AN APPROPRIATE ASSUMPTION ABOUT THE FUNCTIONING
OF COURTS.  IT IS AN ASSUMPTION ONE CAN CONFIDENTLY MAKE BASED UPON THE
RECORDS IN THIS COURT.  SEE WANAMAKER V. SUPREME COURT OF OHIO, SUPRA.
(PAPERS FILED HERE IN CONNECTION WITH THE WANAMAKER CASE MAKE IT CLEAR
THAT THE SUPREME COURT OF OHIO DOES CONSIDER LETTERS ASKING THAT THAT
COURT INSTRUCT ITS CLERK TO ACCEPT PETITIONS FOR FILING.)  THE SUPREME
COURT OF OHIO MIGHT WELL YIELD TO THIS CLAIM OF BURNS AS OTHER COURTS
IN LIKE SITUATIONS HAVE YIELDED SINCE GRIFFIN V. ILLINOIS, 351 U.S.
12.  BUT IN ANY EVENT, A DENIAL OF BURNS' APPLICATION OR REFUSAL TO
ENTERTAIN IT WOULD CONSTITUTE A JUDGMENT OF THAT COURT AS AN
APPROPRIATE PREREQUISITE FOR REVIEW HERE. 

(2)  EVER SINCE SEC. 13 OF THE ACT OF SEPTEMBER 24, 1789, 1 STAT. 81,
AS AMENDED, 28 U.S.C. SEC. 1651, THIS COURT HAS HAD POWER TO ISSUE
MANDAMUS IN PROTECTION OF ITS APPELLATE JURISDICTION IN ORDER TO AVOID
FRUSTRATION OF IT.  THIS IS AN EXERCISE OF ANTICIPATORY REVIEW BY
BRINGING HERE DIRECTLY A CASE WHICH COULD BE BROUGHT TO THIS COURT IN
DUE COURSE. 

(3)  UNDER THE CIVIL RIGHTS ACT, R.S. SEC. 1979, 42 U.S.C. SEC. 1983,
BURNS, LIKE OTHERS BEFORE HIM WHO HAVE ALLEGEDLY BEEN DENIED
CONSTITUTIONAL RIGHTS UNDER COLOR OF ANY STATUTE OF A STATE, MAY HAVE
HIS CONSTITUTIONAL RIGHTS DETERMINED AND, INCIDENTALLY, SECURE HEAVY
DAMAGES FOR ANY DENIAL OF CONSTITUTIONAL RIGHTS.  SEE LANE V. WILSON,
307 U.S. 268. 

(4)  BURNS' CLAIM, IN ESSENCE, IS UNLAWFUL DETENTION BECAUSE OF A
DENIAL OF A CONSTITUTIONAL RIGHT UNDER THE FOURTEENTH AMENDMENT.  THAT
LAYS THE FOUNDATION FOR A HABEAS CORPUS PROCEEDING IN THE UNITED STATES
DISTRICT COURT.  SEE JOHNSON V. ZERBST, 304 U.S. 458.  TO BE SURE, IF
THE RIGHT HE CLAIMS BE RECOGNIZED IN HABEAS CORPUS PROCEEDINGS, HE
WOULD NOT BE RELEASED AS A MATTER OF COURSE BUT MERELY CONDITIONALLY ON
THE STATE SUPREME COURT'S ENTERTAINING HIS PETITION FOR REVIEW AS AN
INDIGENT INCAPABLE OF MEETING COURT COSTS.  THE CONTINGENT NATURE OF
THE RELEASE WOULD NOT IMPAIR THE AVAILABILITY OF HABEAS CORPUS.  SEE
CHIN YOW V. UNITED STATES, 208 U.S. 8. 

THUS, IT CANNOT BE URGED THAT NECESSITY COMPELS WHAT THE CONSTITUTION
AND STATUTES FORBID - ADJUDICATION HERE OF A CLAIM WHICH HAS NOT BEEN
REJECTED IN A FINAL JUDGMENT OF A STATE COURT.  ADHERENCE TO THE
DICTATES OF THE LAWS WHICH GOVERN OUR JURISDICTION, THOUGH IT MAY
RESULT IN POSTPONEMENT OF OUR DETERMINATION OF PETITIONER'S RIGHTS, IS
THE BEST ASSURANCE OF THE VINDICATION OF JUSTICE UNDER LAW THROUGH THE
POWER OF THE COURTS.  WE SHOULD DISMISS THE WRIT OF CERTIORARI INASMUCH
AS THERE HAS BEEN NO FINAL JUDGMENT OVER WHICH WE HAVE APPELLATE
POWER. 
..END :




NAPUE V. ILLINOIS 360 U.S. 264 


NO. 583.  ARGUED APRIL 30, 1959.  - DECIDED JUNE 15, 1959.  - 13 ILL. 2D
566, 150 N.E.2D 613, REVERSED. 


AT PETITIONER'S TRIAL IN A STATE COURT IN WHICH HE WAS CONVICTED OF
MURDER, THE PRINCIPAL STATE WITNESS, AN ACCOMPLICE THEN SERVING A 199
YEAR SENTENCE FOR THE SAME MURDER, TESTIFIED IN RESPONSE TO A QUESTION
BY THE ASSISTANT STATE'S ATTORNEY THAT HE HAD RECEIVED NO PROMISE OF
CONSIDERATION IN RETURN FOR HIS TESTIMONY.  THE ASSISTANT STATE'S
ATTORNEY HAD IN FACT PROMISED HIM CONSIDERATION, BUT HE DID NOTHING TO
CORRECT THE WITNESS' FALSE TESTIMONY.  THE JURY WAS APPRISED, HOWEVER,
THAT A PUBLIC DEFENDER HAD PROMISED "TO DO WHAT HE COULD" FOR THE
WITNESS.  HELD:  THE FAILURE OF THE PROSECUTOR TO CORRECT THE TESTIMONY
OF THE WITNESS WHICH HE KNEW TO BE FALSE DENIED PETITIONER DUE PROCESS
OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  PP. 265-272. 

(A)  THE ESTABLISHED PRINCIPLE THAT A STATE MAY NOT KNOWINGLY USE
FALSE TESTIMONY TO OBTAIN A TAINTED CONVICTION DOES NOT CEASE TO APPLY
MERELY BECAUSE THE FALSE TESTIMONY GOES ONLY TO THE CREDIBILITY OF THE
WITNESS.  PP. 269-270. 

(B)  THE FACT THAT THE JURY WAS APPRISED OF OTHER GROUNDS FOR
BELIEVING THAT THE WITNESS MAY HAVE HAD AN INTEREST IN TESTIFYING
AGAINST PETITIONER WAS NOT SUFFICIENT TO TURN WHAT WAS OTHERWISE A
TAINTED TRIAL INTO A FAIR ONE.  PP. 270-271. 

(C)  SINCE PETITIONER CLAIMS DENIAL OF HIS RIGHTS UNDER THE FEDERAL
CONSTITUTION, THIS COURT WAS NOT BOUND BY THE FACTUAL CONCLUSION
REACHED BY THE ILLINOIS SUPREME COURT, BUT REEXAMINED FOR ITSELF THE
EVIDENTIARY BASIS ON WHICH THAT CONCLUSION WAS FOUNDED.  PP. 271-272. 

NAPUE V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

AT THE MURDER TRIAL OF PETITIONER THE PRINCIPAL STATE WITNESS, THEN
SERVING A 199-YEAR SENTENCE FOR THE SAME MURDER, TESTIFIED IN RESPONSE
TO A QUESTION BY THE ASSISTANT STATE'S ATTORNEY THAT HE HAD RECEIVED NO
PROMISE OF CONSIDERATION IN RETURN FOR HIS TESTIMONY.  THE ASSISTANT
STATE'S ATTORNEY HAD IN FACT PROMISED HIM CONSIDERATION, BUT DID
NOTHING TO CORRECT THE WITNESS' FALSE TESTIMONY.  THE JURY WAS
APPRISED, HOWEVER, THAT A PUBLIC DEFENDER HAD PROMISED "TO DO WHAT HE
COULD" FOR THE WITNESS.  THE QUESTION PRESENTED IS WHETHER ON THESE
FACTS THE FAILURE OF THE PROSECUTOR TO CORRECT THE TESTIMONY OF THE
WITNESS WHICH HE KNEW TO BE FALSE DENIED PETITIONER DUE PROCESS OF LAW
IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES. 

THE RECORD IN THIS COURT CONTAINS TESTIMONY FROM WHICH THE FOLLOWING
FACTS COULD HAVE BEEN FOUND.  THE MURDER IN QUESTION OCCURRED EARLY IN
THE MORNING OF AUGUST 21, 1938, IN A CHICAGO, ILLINOIS, COCKTAIL
LOUNGE.  PETITIONER HENRY NAPUE, THE WITNESS GEORGE HAMER, ONE POE AND
ONE TOWNSEND ENTERED THE DIMLY LIGHTED LOUNGE AND ANNOUNCED THEIR
INTENTION TO ROB THOSE PRESENT.  AN OFF-DUTY POLICEMAN, PRESENT IN THE
LOUNGE, DREW HIS SERVICE REVOLVER AND BEGAN FIRING AT THE FOUR MEN.  IN
THE MELEE THAT FOLLOWED TOWNSEND WAS KILLED, THE OFFICER WAS FATALLY
WOUNDED, AND THE WITNESS HAMER WAS SERIOUSLY WOUNDED.  NAPUE AND POE
CARRIED HAMER TO THE CAR WHERE A FIFTH MAN, ONE WEBB, WAS WAITING.   IN
DUE COURSE HAMER WAS APPREHENDED, TRIED FOR MURDER OF THE POLICEMAN,
CONVICTED ON HIS PLEA OF GUILTY AND SENTENCED TO 199 YEARS. 
SUBSEQUENTLY, POE WAS APPREHENDED, TRIED, CONVICTED, SENTENCED TO DEATH
AND EXECUTED.  HAMER WAS NOT USED AS A WITNESS. 

THEREAFTER, PETITIONER NAPUE WAS APPREHENDED.  HE WAS PUT ON TRIAL
WITH HAMER BEING THE PRINCIPAL WITNESS FOR THE STATE.  HAMER'S
TESTIMONY WAS EXTREMELY IMPORTANT BECAUSE THE PASSAGE OF TIME AND THE
DIM LIGHT IN THE COCKTAIL LOUNGE MADE EYEWITNESS IDENTIFICATION VERY
DIFFICULT AND UNCERTAIN, AND BECAUSE SOME PERTINENT WITNESSES HAD LEFT
THE STATE.  ON THE BASIS OF THE EVIDENCE PRESENTED, WHICH CONSISTED
LARGELY OF HAMER'S TESTIMONY, THE JURY RETURNED A GUILTY VERDICT AND
PETITIONER WAS SENTENCED TO 199 YEARS. 

FINALLY, THE DRIVER OF THE CAR, WEBB, WAS APPREHENDED.  HAMER ALSO
TESTIFIED AGAINST HIM.  HE WAS CONVICTED OF MURDER AND SENTENCED TO 199
YEARS. 

FOLLOWING THE CONVICTION OF WEBB, THE LAWYER WHO, AS FORMER ASSISTANT
STATE'S ATTORNEY, HAD PROSECUTED THE HAMER, POE AND NAPUE CASES FILED A
PETITION IN THE NATURE OF A WRIT OF ERROR CORAM NOBIS ON BEHALF OF
HAMER.  IN THE PETITION HE ALLEGED THAT AS PROSECUTING ATTORNEY HE HAD
PROMISED HAMER THAT IF HE WOULD TESTIFY AGAINST NAPUE, "A
RECOMMENDATION FOR A REDUCTION OF HIS (HAMER'S) SENTENCE WOULD BE MADE
AND, IF POSSIBLE, EFFECTUATED."  (FN1)  THE ATTORNEY PRAYED THAT THE
COURT WOULD EFFECT "CONSUMMATION OF THE COMPACT ENTERED INTO BETWEEN
THE DULY AUTHORIZED REPRESENTATIVES OF THE STATE OF ILLINOIS AND GEORGE
HAMER." 

THIS CORAM NOBIS PROCEEDING CAME TO THE ATTENTION OF NAPUE, WHO
THEREAFTER FILED A POST-CONVICTION PETITION, IN WHICH HE ALLEGED THAT
HAMER HAD FALSELY TESTIFIED THAT HE HAD BEEN PROMISED NO CONSIDERATION
FOR HIS TESTIMONY, (FN2) AND THAT THE ASSISTANT STATE'S ATTORNEY
HANDLING THE CASE HAD KNOWN THIS TO BE FALSE.  A HEARING WAS ULTIMATELY
HELD AT WHICH THE FORMER ASSISTANT STATE'S ATTORNEY TESTIFIED THAT HE
HAD ONLY PROMISED TO HELP HAMER IF HAMER'S STORY "ABOUT BEING A
RELUCTANT PARTICIPANT" IN THE ROBBERY WAS BORNE OUT, AND NOT MERELY IF
HAMER WOULD TESTIFY AT PETITIONER'S TRIAL.  HE TESTIFIED THAT IN HIS
CORAM NOBIS PETITION ON HAMER'S BEHALF HE "PROBABLY USED SOME LANGUAGE
THAT HE SHOULD NOT HAVE USED" IN HIS "ZEAL TO DO SOMETHING FOR HAMER"
TO WHOM HE "FELT A MORAL OBLIGATION."  THE LOWER COURT DENIED
PETITIONER RELIEF ON THE BASIS OF THE ATTORNEY'S TESTIMONY. 

ON APPEAL, THE ILLINOIS SUPREME COURT AFFIRMED ON DIFFERENT GROUNDS
OVER TWO DISSENTS.  13 ILL. 2D 566, 150 N.E.2D 613.  IT FOUND, CONTRARY
TO THE TRIAL COURT, THAT THE ATTORNEY HAD PROMISED HAMER CONSIDERATION
IF HE WOULD TESTIFY AT PETITIONER'S TRIAL, A FINDING WHICH THE STATE
DOES NOT CONTEST HERE.  IT FURTHER FOUND THAT THE ASSISTANT STATE'S
ATTORNEY KNEW THAT HAMER HAD LIED IN DENYING THAT HE HAD BEEN PROMISED
CONSIDERATION.  IT HELD, HOWEVER, THAT PETITIONER WAS ENTITLED TO NO
RELIEF SINCE THE JURY HAD ALREADY BEEN APPRISED THAT SOMEONE WHOM HAMER
HAD TENTATIVELY IDENTIFIED AS BEING A PUBLIC DEFENDER "WAS GOING TO DO
WHAT HE COULD" IN AID OF HAMER, AND "WAS TRYING TO GET SOMETHING DID"
FOR HIM.  (FN3)  WE GRANTED CERTIORARI TO CONSIDER THE QUESTION POSED
IN THE FIRST PARAGRAPH OF THIS OPINION.  358 U.S. 919. 

FIRST, IT IS ESTABLISHED THAT A CONVICTION OBTAINED THROUGH USE OF
FALSE EVIDENCE, KNOWN TO BE SUCH BY REPRESENTATIVES OF THE STATE, MUST
FALL UNDER THE FOURTEENTH AMENDMENT, MOONEY V. HOLOHAN, 294 U.S. 103;
PYLE V. KANSAS, 317 U.S. 213; CURRAN V. DELAWARE, 259 F.2D 707.  SEE
NEW YORK EX REL. WHITMAN V. WILSON, 318 U.S. 688, AND WHITE V. RAGEN,
324 U.S. 760.  COMPARE JONES V. COMMONWEALTH, 97 F.2D 335, 338, WITH IN
RE SAWYER'S PETITION, 229 F.2D 805, 809.  CF. MESAROSH V. UNITED
STATES, 352 U.S. 1.  THE SAME RESULT OBTAINS WHEN THE STATE, ALTHOUGH
NOT SOLICITING FALSE EVIDENCE, ALLOWS IT TO GO UNCORRECTED WHEN IT
APPEARS.  ALCORTA V. TEXAS, 355 U.S. 28; UNITED STATES EX REL. THOMPSON
V. DYE, 221 F.2D 763; UNITED STATES EX REL. ALMEIDA V. BALDI, 195 F.2D
815; UNITED STATES EX REL. MONTGOMERY V. RAGEN, 86 F. SUPP. 382.  SEE
GENERALLY ANNOTATION, 2 L. ED. 2D 1575. 

THE PRINCIPLE THAT A STATE MAY NOT KNOWINGLY USE FALSE EVIDENCE,
INCLUDING FALSE TESTIMONY, TO OBTAIN A TAINTED CONVICTION, IMPLICIT IN
ANY CONCEPT OF ORDERED LIBERTY, DOES NOT CEASE TO APPLY MERELY BECAUSE
THE FALSE TESTIMONY GOES ONLY TO THE CREDIBILITY OF THE WITNESS.  THE
JURY'S ESTIMATE OF THE TRUTHFULNESS AND RELIABILITY OF A GIVEN WITNESS
MAY WELL BE DETERMINATIVE OF GUILT OR INNOCENCE, AND IT IS UPON SUCH
SUBTLE FACTORS AS THE POSSIBLE INTEREST OF THE WITNESS IN TESTIFYING
FALSELY THAT A DEFENDANT'S LIFE OR LIBERTY MAY DEPEND.  AS STATED BY
THE NEW YORK COURT OF APPEALS IN A CASE VERY SIMILAR TO THIS ONE,
PEOPLE V. SAVVIDES, 1 N.Y.2D 554, 557; 136 N.E.2D 853, 854-855; 154
N.Y.S.2D 885, 887: 

"IT IS OF NO CONSEQUENCE THAT THE FALSEHOOD BORE UPON THE WITNESS'
CREDIBILITY RATHER THAN DIRECTLY UPON DEFENDANT'S GUILT.  A LIE IS A
LIE, NO MATTER WHAT ITS SUBJECT, AND, IF IT IS IN ANY WAY RELEVANT TO
THE CASE, THE DISTRICT ATTORNEY HAS THE RESPONSIBILITY AND DUTY TO
CORRECT WHAT HE KNOWS TO BE FALSE AND ELICIT THE TRUTH  ...  .  THAT
THE DISTRICT ATTORNEY'S SILENCE WAS NOT THE RESULT OF GUILE OR A DESIRE
TO PREJUDICE MATTERS LITTLE, FOR ITS IMPACT WAS THE SAME, PREVENTING,
AS IT DID, A TRIAL THAT COULD IN ANY REAL SENSE BE TERMED FAIR." 

SECOND, WE DO NOT BELIEVE THAT THE FACT THAT THE JURY WAS APPRISED OF
OTHER GROUNDS FOR BELIEVING THAT THE WITNESS HAMER MAY HAVE HAD AN
INTEREST IN TESTIFYING AGAINST PETITIONER TURNED WHAT WAS OTHERWISE A
TAINTED TRIAL INTO A FAIR ONE.  AS MR. JUSTICE SCHAEFER, JOINED BY
CHIEF JUSTICE DAVIS, RIGHTLY PUT IT IN HIS DISSENTING OPINION BELOW, 13
ILL. 2D 566, 571, 150 N.E.2D 613, 616: 

"WHAT IS OVERLOOKED HERE IS THAT HAMER CLEARLY TESTIFIED THAT NO ONE
HAD OFFERED TO HELP HIM EXCEPT AN UNIDENTIFIED LAWYER FROM THE PUBLIC
DEFENDER'S OFFICE." 

HAD THE JURY BEEN APPRISED OF THE TRUE FACTS, HOWEVER, IT MIGHT WELL
HAVE CONCLUDED THAT HAMER HAD FABRICATED TESTIMONY IN ORDER TO CURRY
THE FAVOR OF THE VERY REPRESENTATIVE OF THE STATE WHO WAS PROSECUTING
THE CASE IN WHICH HAMER WAS TESTIFYING, FOR HAMER MIGHT HAVE BELIEVED
THAT SUCH A REPRESENTATIVE WAS IN A POSITION TO IMPLEMENT (AS HE
ULTIMATELY ATTEMPTED TO DO) ANY PROMISE OF CONSIDERATION.  THAT THE
ASSISTANT STATE'S ATTORNEY HIMSELF THOUGHT IT IMPORTANT TO ESTABLISH
BEFORE THE JURY THAT NO OFFICIAL SOURCE HAD PROMISED HAMER
CONSIDERATION IS MADE CLEAR BY HIS REDIRECT EXAMINATION, WHICH WAS THE
LAST TESTIMONY OF HAMER'S HEARD BY THE JURY: 

"Q.  MR. HAMER, HAS JUDGE PRYSTALSKI (THE TRIAL JUDGE) PROMISED YOU
ANY REDUCTION OF SENTENCE? 

"A.  NO, SIR. 

"Q.  HAVE I PROMISED YOU THAT I WOULD RECOMMEND ANY REDUCTION OF
SENTENCE TO ANYBODY? 

"A.  YOU DID NOT.  (THAT ANSWER WAS FALSE AND KNOWN TO BE SO BY THE
PROSECUTOR.) 

"Q.  HAS ANY JUDGE OF THE CRIMINAL COURT PROMISED THAT HE WOULD
REDUCE YOUR SENTENCE? 

"A.  NO, SIR. 

"Q. HAS ANY REPRESENTATIVE OF THE PAROLE BOARD BEEN TO SEE YOU AND
PROMISED YOU A REDUCTION OF SENTENCE? 

"A.  NO, SIR. 

"Q.  HAS ANY REPRESENTATIVE OF THE GOVERNOR OF THE STATE OF ILLINOIS
PROMISED YOU A REDUCTION OF SENTENCE? 

"A.  NO, SIR." 

WE ARE THEREFORE UNABLE TO AGREE WITH THE ILLINOIS SUPREME COURT THAT
"THERE WAS NO CONSTITUTIONAL INFIRMITY BY VIRTUE OF THE FALSE
STATEMENT." 

THIRD, THE STATE ARGUES THAT WE ARE NOT FREE TO REACH A FACTUAL
CONCLUSION DIFFERENT FROM THAT REACHED BY THE ILLINOIS SUPREME COURT,
AND THAT WE ARE BOUND BY ITS DETERMINATION THAT THE FALSE TESTIMONY
COULD NOT IN ANY REASONABLE LIKELIHOOD HAVE AFFECTED THE JUDGMENT OF
THE JURY.  THE STATE RELIES ON HYSLER V. FLORIDA, 315 U.S. 411.  BUT IN
THAT CASE THE COURT HELD ONLY THAT A STATE STANDARD OF SPECIFICITY AND
SUBSTANTIALITY IN MAKING ALLEGATIONS OF FEDERAL CONSTITUTIONAL
DEPRIVATIONS WOULD BE RESPECTED, AND THIS COURT MADE ITS OWN
"INDEPENDENT EXAMINATION" OF THE ALLEGATIONS THERE TO DETERMINE IF THEY
HAD IN FACT MET THE FLORIDA STANDARD.  THE DUTY OF THIS COURT TO MAKE
ITS OWN INDEPENDENT EXAMINATION OF THE RECORD WHEN FEDERAL
CONSTITUTIONAL DEPRIVATIONS ARE ALLEGED IS CLEAR, RESTING, AS IT DOES,
ON OUR SOLEMN RESPONSIBILITY FOR MAINTAINING THE CONSTITUTION
INVIOLATE.  MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304; COOPER V. AARON,
358 U.S. 1.  THIS PRINCIPLE WAS WELL STATED IN NIEMOTKO V. MARYLAND,
340 U.S. 268, 271: 

"IN CASES IN WHICH THERE IS A CLAIM OF DENIAL OF RIGHTS UNDER THE
FEDERAL CONSTITUTION, THIS COURT IS NOT BOUND BY THE CONCLUSIONS OF
LOWER COURTS, BUT WILL REEXAMINE THE EVIDENTIARY BASIS ON WHICH THOSE
CONCLUSIONS ARE FOUNDED." 

IT IS NOW SO WELL SETTLED THAT THE COURT WAS ABLE TO SPEAK IN KERN
LIMERICK, INC., V. SCURLOCK, 347 U.S. 110, 121, OF THE "LONG COURSE OF
JUDICIAL CONSTRUCTION WHICH ESTABLISHES AS A PRINCIPLE THAT THE DUTY
RESTS ON THIS COURT TO DECIDE FOR ITSELF FACTS OR CONSTRUCTIONS UPON
WHICH FEDERAL CONSTITUTIONAL ISSUES REST."  (FN4)  AS PREVIOUSLY
INDICATED, OUR OWN EVALUATION OF THE RECORD HERE COMPELS US TO HOLD
THAT THE FALSE TESTIMONY USED BY THE STATE IN SECURING THE CONVICTION
OF PETITIONER MAY HAVE HAD AN EFFECT ON THE OUTCOME OF THE TRIAL. 
ACCORDINGLY, THE JUDGMENT BELOW MUST BE REVERSED. 

FN1  IN RELEVANT PART, HIS PETITION READ AS FOLLOWS: 

"AFTER HAMER WAS SENTENCED YOUR PETITIONER (THE ASSISTANT STATE'S
ATTORNEY) WELL KNOWING THAT IDENTIFICATION OF POE, NAPUE AND WEBB IF
AND WHEN APPREHENDED WOULD BE OF AN UNSATISFACTORY CHARACTER AND NOT
THE KIND OF EVIDENCE UPON WHICH A JURY COULD BE ASKED TO INFLICT A
PROPER, SEVERE PENALTY, AND BEING UNABLE TO DETERMINE IN ADVANCE
WHETHER POE, NAPUE AND WEBB WOULD MAKE CONFESSIONS OF THEIR
PARTICIPATION IN THE CRIME, REPRESENTED TO HAMER THAT IF HE WOULD BE
WILLING TO COOPERATE WITH LAW ENFORCING OFFICIALS UPON THE TRIALS OF
POE, NAPUE AND WEBB WHEN THEY WERE APPREHENDED, THAT A RECOMMENDATION
FOR A REDUCTION OF HIS SENTENCE WOULD BE MADE AND, IF POSSIBLE,
EFFECTUATED. 

     *      *         *         *         * 

"BEFORE TESTIFYING ON BEHALF OF THE STATE AND AGAINST NAPUE, HAMER
EXPRESSED TO YOUR PETITIONER A RELUCTANCE TO COOPERATE ANY FURTHER
UNLESS HE WERE GIVEN DEFINITE ASSURANCE THAT A RECOMMENDATION FOR
REDUCTION OF HIS SENTENCE WOULD BE MADE.  YOUR PETITIONER, FEELING THAT
THE INTERESTS OF JUSTICE REQUIRED HAMER'S TESTIMONY, AGAIN ASSURED
HAMER THAT EVERY POSSIBLE EFFORT WOULD BE MADE TO CONFORM TO THE
PROMISE PREVIOUSLY MADE TO HIM." 

FN2  THE ALLEGED FALSE TESTIMONY OF HAMER FIRST OCCURRED ON HIS CROSS
EXAMINATION: 

"Q.  DID ANYBODY GIVE YOU A REWARD OR PROMISE YOU A REWARD FOR
TESTIFYING? 

"A.  THERE AIN'T NOBODY PROMISED ME ANYTHING." 

ON REDIRECT EXAMINATION THE ASSISTANT STATE'S ATTORNEY AGAIN ELICITED
THE SAME FALSE ANSWER. 

"Q.  (BY THE ASSISTANT STATE'S ATTORNEY) HAVE I PROMISED YOU THAT I
WOULD RECOMMEND ANY REDUCTION OF SENTENCE TO ANYBODY? 

"A.  YOU DID NOT." 

FN3  THE FOLLOWING IS HAMER'S TESTIMONY ON THE SUBJECT: 

"Q.  (ON CROSS-EXAMINATION) AND DIDN'T YOU TELL HIM (ONE OF NAPUE'S
ATTORNEYS) THAT YOU WOULDN'T TESTIFY IN THIS CASE UNLESS YOU GOT SOME
CONSIDERATION FOR IT? 

"A.  ...  YES, I DID; I TOLD HIM THAT. 

     *         *         *         *         * 

"Q.  WHAT ARE YOU SENTENCED FOR? 

"A.  ONE HUNDRED AND NINETY-NINE YEARS. 

"Q.  YOU HOPE TO HAVE THAT REDUCED, DON'T YOU? 

"A.  WELL, IF ANYBODY WOULD HELP ME OR DO ANYTHING FOR ME, WHY
CERTAINLY I WOULD.    "Q.  WEREN'T YOU EXPECTING THAT WHEN YOU CAME
HERE TODAY? 

"A.  THERE HAVEN'T NO ONE TOLD ME ANYTHING, NO MORE THAN THE LAWYER. 
THE LAWYER COME IN AND TALKED TO ME A WHILE AGO AND SAID HE WAS GOING
TO DO WHAT HE COULD. 

"Q.  WHICH LAWYER WAS THAT? 

"A.  I DON'T KNOW; IT WAS A PUBLIC DEFENDER.  I DON'T SEE HIM IN
HERE. 

"Q.  YOU MEAN HE WAS FROM THE PUBLIC DEFENDER'S OFFICE? 

"A.  I IMAGINE THAT IS WHERE HE WAS FROM, I DON'T KNOW. 

"Q.  AND HE WAS THE ONE WHO TOLD YOU THAT?    "A.  YES, HE TOLD ME HE
WAS TRYING TO GET SOMETHING DID FOR ME. 

"Q.  ...  AND HE TOLD YOU HE WAS GOING TO DO SOMETHING FOR YOU? 

"A.  HE SAID HE WAS GOING TO TRY TO. 

     *    *         *         *         * 

"Q.  AND YOU TOLD THEM (POLICE OFFICERS) YOU WOULD (TESTIFY AT THE
TRIAL OF NAPUE) BUT YOU EXPECTED SOME CONSIDERATION FOR IT? 

"A.  I ASKED THEM WAS THERE ANY CHANCE OF ME GETTING ANY.  THE MAN
TOLD ME HE DIDN'T KNOW, THAT HE COULDN'T PROMISE ME ANYTHING. 

"Q.  THEN YOU SPOKE TO A LAWYER TODAY WHO SAID HE WOULD TRY TO GET
YOUR TIME CUT? 

"A.  THAT WAS THIS PUBLIC DEFENDER.  I DON'T EVEN KNOW HIS NAME  ...
." 

FN4  SEE, E.G., PAYNE V. ARKANSAS, 356 U.S. 560, 562; LEYRA V. DENNO,
347 U.S. 556, 558; AVERY V. GEORGIA, 345 U.S. 559, 561; FEINER V. NEW
YORK, 340 U.S. 315, 322, 323, NOTE 4 (DISSENTING OPINION); CASSELL V.
TEXAS, 339 U.S. 282, 283; HALEY V. OHIO, 332 U.S. 596, 599; MALINSKI V.
NEW YORK, 324 U.S. 401, 404; ASHCRAFT V. TENNESSEE, 322 U.S. 143, 149;
WARD V. TEXAS, 316 U.S. 547, 550; SMITH V. TEXAS, 311 U.S. 128, 130;
SOUTH CAROLINA V. BAILEY, 289 U.S. 412, 420.  SEE ALSO, E.G., ROTH V.
UNITED STATES, 354 U.S. 476, 497 (DISSENTING OPINION); STROBLE V.
CALIFORNIA, 343 U.S. 181, 190; STERLING V. CONSTANTIN, 287 U.S. 378,
398; SOUTHERN PACIFIC CO. V. SCHUYLER, 227 U.S. 601, 611; CRESWILL V.
GRAND LODGE KNIGHTS OF PYTHIAS, 225 U.S. 246, 261. 

MR. JUSTICE HOLMES, WRITING FOR THE COURT, RECOGNIZED THE PRINCIPLE
OVER 35 YEARS AGO IN DAVIS V. WECHSLER, 263 U.S. 22, 24: 

"IF THE CONSTITUTION AND LAWS OF THE UNITED STATES ARE TO BE
ENFORCED, THIS COURT CANNOT ACCEPT AS FINAL THE DECISION OF A STATE
TRIBUNAL AS TO WHAT ARE THE FACTS ALLEGED TO GIVE RISE TO THE RIGHT OR
TO BAR THE ASSERTION OF IT EVEN UPON LOCAL GROUNDS." 
..END :










MAGENAU V. AETNA FREIGHT LINES, INC. 360 U.S. 273 


NO. 439.  ARGUED MAY 18, 1959.  - DECIDED JUNE 15, 1959.  - 257 F.2D
445, REVERSED AND CAUSE REMANDED. 


BASING JURISDICTION ON DIVERSITY OF CITIZENSHIP, PETITIONER SUED IN A
FEDERAL DISTRICT COURT TO RECOVER FOR THE WRONGFUL DEATH OF HIS
DECEDENT, WHO WAS KILLER WHEN A TRACTOR-TRAILER LEASED BY RESPONDENT
CRASHED OFF A PENNSYLVANIA HIGHWAY.  THE CASE WAS TRIED TO A JURY ON A
NEGLIGENCE THEORY AND JUDGMENT WENT FOR PETITIONER.  THE COURT OF
APPEALS REVERSED ON THE GROUND THAT THE DECEDENT WAS AN EMPLOYEE OF
RESPONDENT AND THE PENNSYLVANIA WORKMAN'S COMPENSATION ACT PROVIDED THE
EXCLUSIVE REMEDY.  BOTH COURTS TREATED THE QUESTION WHETHER THE
DECEDENT WAS RESPONDENT'S EMPLOYEE WITHIN THE MEANING OF THE
PENNSYLVANIA STATUTE AS A QUESTION OF LAW FOR DETERMINATION BY THE
JUDGE, INSTEAD OF THE JURY.  HELD:  THE JUDGMENT IS REVERSED AND THE
CAUSE IS REMANDED FOR A NEW TRIAL.  PP. 274-279. 

(A)  IN A FEDERAL DISTRICT COURT, ALL DISPUTED ISSUES OF FACT
NECESSARY TO A DETERMINATION AS TO WHETHER THE DECEDENT WAS
RESPONDENT'S EMPLOYEE WITHIN THE MEANING OF THE PENNSYLVANIA WORKMAN'S
COMPENSATION ACT WERE FOR JURY DETERMINATION, REGARDLESS OF THE
PRACTICE IN THE STATE COURTS, UNLESS THE STATE'S ASSIGNMENT OF THOSE
FACTUAL ISSUES TO THE JUDGE RATHER THAN THE JURY HAS BEEN "ANNOUNCED AS
AN INTEGRAL PART OF THE SPECIAL RELATIONSHIP CREATED BY THE STATUTE." 
BYRD V. BLUE RIDGE ELECTRICAL COOPERATIVE, 356 U.S. 525.  P. 278. 

(B)  NO SUCH REASON FOR THE DISTINCTION HAS BEEN SHOWN HERE, AND, ON
THE RECORD IN THIS CASE, NOT ALL OF THE DISPUTED ISSUES OF FACT
NECESSARY TO A DETERMINATION AS TO WHETHER THE DECEDENT WAS
RESPONDENT'S EMPLOYEE WITHIN THE MEANING OF THE PENNSYLVANIA STATUTE
WERE SUBMITTED TO, OR PASSED ON BY, THE JURY.  THEREFORE, A NEW TRIAL
IS NECESSARY.  PP.  276-279. 

MAGENAU, ADMINISTRATOR, V. AETNA FREIGHT LINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIVERSITY CASE FOR WRONGFUL DEATH OF PETITIONER'S DECEDENT,
WHO WAS KILLED WHEN A TRACTOR-TRAILER LEASED BY RESPONDENT CRASHED OFF
A PENNSYLVANIA HIGHWAY.  THE ACTION WAS TRIED TO A JURY ON A NEGLIGENCE
THEORY AND JUDGMENT WENT FOR PETITIONER.  161 F. SUPP. 875.  THE COURT
OF APPEALS REVERSED, FINDING THAT UNDER PENNSYLVANIA LAW THE DECEDENT
WAS AN EMPLOYEE OF RESPONDENT AND THAT THE PENNSYLVANIA WORKMEN'S
COMPENSATION ACT, PURDON'S PA. STAT. ANN., 1952, TIT. 77, PROVIDED THE
EXCLUSIVE REMEDY.  257 F.2D 445.  WE GRANTED CERTIORARI, 358 U.S. 927,
ON THE QUESTION WHETHER, IN THE LIGHT OF BYRD V. BLUE RIDGE RURAL
ELECTRIC COOPERATIVE, INC., 356 U.S. 525 (1958)(DECIDED AFTER THIS CASE
WAS ARGUED IN THE COURT OF APPEALS), THE MATTER OF THE RELATIONSHIP OF
THE DECEDENT TO RESPONDENT WAS A JURY QUESTION.  WE HAVE CONCLUDED THAT
BYRD DOES CONTROL THAT ISSUE AND THAT THE JUDGMENT MUST THEREFORE BE
REVERSED. 

RESPONDENT IS AN INTERSTATE MOTOR CARRIER OF FREIGHT CERTIFICATED
UNDER THE INTERSTATE COMMERCE ACT.  IT HAD LEASED A TRACTOR-TRAILER,
COMPLETE WITH DRIVER, FROM ONE FIDLER, AN INDEPENDENT CONTRACTOR.  ITS
LEASE CONTRACT, WHICH HAD BEEN IN EFFECT FOR FOUR YEARS, REQUIRED
FIDLER TO FURNISH THE DRIVER AS WELL AS TO KEEP THE LEASED EQUIPMENT IN
REPAIR.  IN THIS CONNECTION THE EVIDENCE INDICATES THAT FIDLER HAD
AUTHORIZED HIS DRIVER, WHERE CIRCUMSTANCES REQUIRED, TO HIRE SERVICES
AND PURCHASE NECESSITIES ON TRIPS OF THIS KIND.  THE VEHICLE AND DRIVER
LEASED BY RESPONDENT WERE ENROUTE FROM SYRACUSE, N.Y., TO MIDLAND, PA.,
WITH 36,000 POUNDS OF STEEL WHEN THE MISHAP LEADING TO DECEDENT'S DEATH
OCCURRED.  THE TRIP FROM SYRACUSE HAD BEEN SO BESET WITH DIFFICULTIES,
SUCH AS TIRE REPLACEMENTS, BATTERY TROUBLE AND BRAKE FAILURE, AS WELL
AS BAD WEATHER, THAT IT HAD ALREADY CONSUMED 7 DAYS' TIME.  UNDER
ORDINARY CONDITIONS 20 HOURS OF ELAPSED TIME WOULD HAVE BEEN
SUFFICIENT.  DURING A STOP AT A TAVERN NEAR WATERFORD, PA., THE DRIVER,
SCHROYER, WAS TALKING TO THE TAVERN KEEPER ABOUT HIS TRUCK TROUBLES
WHEN DECEDENT AND HIS COUSIN ENTERED THE PLACE.  SCHROYER OFFERED THE
COUSIN $25 TO ACCOMPANY HIM FOR THE REMAINDER OF THE TRIP AND, UPON
REFUSAL, MADE THE SAME OFFER TO DECEDENT.  THE LATTER ACCEPTED.  WHILE
THE EVIDENCE IS WEAK ON THE POINT, THE INDICATIONS ARE THAT DECEDENT'S
JOB WAS TO AID THE DRIVER IN THE EVENT FURTHER TROUBLE WITH THE TRUCK
WAS ENCOUNTERED.  DECEDENT WAS EXPERIENCED WITH CARS AND HAD WORKED FOR
A SHORT TIME AS A MECHANIC.  SCHROYER AND DECEDENT PROCEEDED IN THE
TRUCK-TRAILER TOWARD THEIR DESTINATION, WITH THE FORMER DRIVING.  SOME
HOURS LATER THE VEHICLE WAS FOUND OFF THE ROAD ON THE DOWNSIDE OF AN
EMBANKMENT.  BOTH MEN WERE DEAD. 

THIS ACTION ENSUED, IN WHICH PETITIONER ALLEGED NEGLIGENCE ON THE
PART OF FIDLER AND RESPONDENT FOR CONTINUING TO OPERATE THE VEHICLE
WITH KNOWLEDGE OF ITS DEFECTIVE BRAKES.  LIABILITY OF RESPONDENT WAS
RESTED UPON THE RULE THAT ITS STATUS AS A CERTIFICATED CARRIER MADE IT
LIABLE FOR THE NEGLIGENCE OF FIDLER, ITS INDEPENDENT CONTRACTOR, WHOSE
MOTOR EQUIPMENT WAS OPERATED UNDER THE FORMER'S I.C.C. CERTIFICATE. 
THIS IS THE LAW OF PENNSYLVANIA, KISSELL V. MOTOR AGE TRANSIT LINES,
357 PA. 204, 209, 53 A.2D 593, 597.  (FN1)  PETITIONER'S THEORY WAS
THAT HIS DECEDENT WAS AN INVITEE ON THE TRACTOR-TRAILER AND THAT FIDLER
AND HIS DRIVER, SCHROYER, THEREFORE, OWNED DECEDENT A DUTY OF DUE CARE
FOR BREACH OF WHICH RESPONDENT WAS LIABLE UNDER ITS I.C.C.
CERTIFICATE.  RESPONDENT CLAIMED THAT DECEDENT WAS A TRESPASSER AND,
UNDER PENNSYLVANIA LAW, THAT IT WAS THEREFORE LIABLE ONLY FOR WANTON
MISCONDUCT.  AFTER DISCOVERY HAD BEEN EXHAUSTED, RESPONDENT MOVED FOR
SUMMARY JUDGMENT ON THE GROUND THAT THE CIRCUMSTANCES OF DECEDENT'S
ENGAGEMENT BY SCHROYER CREATED AN EMPLOYER-EMPLOYEE RELATIONSHIP
BETWEEN IT AND DECEDENT UNDER THE STATE WORKMAN'S COMPENSATION
STATUTE.  THE MOTION WAS DENIED AND THE CASE WENT TO TRIAL.  IT WAS
SUBMITTED TO THE JURY ON SPECIAL INTERROGATORIES COVERING THE ISSUES AS
TO LIABILITY AND A GENERAL CHARGE AS TO THE DAMAGES.  THE TRIAL JUDGE
ENTERED JUDGMENT ON THE SPECIAL ISSUES AND THE DAMAGE VERDICT FOR
$76,500. 

INTERROGATORY NO. 1, (FN2) THE MEANING OF WHICH IS NOW IN
CONTROVERSY, INQUIRED AS TO WHETHER IT WAS "REASONABLY NECESSARY FOR
THE PROTECTION OF DEFENDANT'S (RESPONDENT'S) INTERESTS" TO ENGAGE
DECEDENT.  THE COURT OF APPEALS HELD THAT THE AFFIRMATIVE ANSWER OF THE
JURY CLASSIFIED DECEDENT AS RESPONDENT'S EMPLOYEE BRINGING HIM WITHIN
THE GENERAL DEFINITION OF SEC. 104 OF THE PENNSYLVANIA WORKMAN'S
COMPENSATION ACT.  (FN3)  IT NOTED THAT RESPONDENT HAD CONCEDED THAT
DECEDENT WAS ITS "CASUAL" EMPLOYEE BUT THAT THIS WAS NOT ENOUGH TO TAKE
HIM OUT OF THE ACT'S COVERAGE FOR, IN ADDITION, SUCH CASUAL EMPLOYMENT
MUST "NOT BE IN THE REGULAR COURSE OF BUSINESS" OF RESPONDENT.  THIS,
THE COURT OF APPEALS SAID, WAS A QUESTION OF LAW UNDER PENNSYLVANIA
PRACTICE AND OPEN TO REVIEW.  IT HELD THAT THE FINDING UNDER
INTERROGATORY NO. 1 PUT DECEDENT "INTO THE REGULAR BUSINESS" OF
RESPONDENT.  THIS HOLDING WOULD CALL FOR THE DISMISSAL OF THIS SUIT, AS
PETITIONER'S EXCLUSIVE REMEDY WOULD BE UNDER THE PENNSYLVANIA WORKMEN'S
COMPENSATION ACT. 

SINCE THE KEYSTONE OF THE COURT OF APPEALS' HOLDING DEPENDS ON ITS
INTERPRETATION OF SPECIAL INTERROGATORY NO. 1, WE NOTE THE VIEWS OF THE
TRIAL JUDGE ON THAT ISSUE.  IN HIS OPINION ON THE MOTION OF RESPONDENT
FOR JUDGMENT NON OBSTANTE VERDICTO, HE OBSERVED THAT "THE INTERROGATORY
... WAS NOT SO PHRASED AS TO REQUIRE THE JURY TO DETERMINE WHETHER
DECEDENT WAS AN EMPLOYEE OF AETNA."  RATHER, IT "WAS SIMPLY TO SECURE A
FINDING FROM THE JURY AS TO THE REASONABLE NECESSITY OF SCHROYER
ENGAGING DECEDENT."  161 F. SUPP., AT 878.  LIKEWISE DURING THE TRIAL,
IN A COLLOQUY WITH COUNSEL AS TO THIS INTERROGATORY, HE ADVISED:  "YOU
NOTICE THERE I REFRAIN FROM SAYING JUST WHAT HIS (DECEDENT'S) STATUS
IS.  I DON'T THINK IT NECESSARY TO HAVE THE JURY FIND WHETHER HE WAS
EMPLOYED OR NOT; I THINK THAT IS A QUESTION FOR THE LAW."  ON BALANCE
WE BELIEVE THAT AN EXAMINATION OF THE RECORD SUPPORTS THIS
INTERPRETATION OF INTERROGATORY NO. 1, ALTHOUGH IT MUST BE ADMITTED
THAT THE APPARENTLY INADVERTENT USE OF THE WORDS IN "PROTECTION OF THE
DEFENDANT'S INTEREST" IN THE INTERROGATORY MAY HAVE BEEN TAKEN IN A
DIFFERENT LIGHT BY THE JURY. 

BE THIS AS IT MAY, HOWEVER, NOT ONLY THE QUESTION OF THE RELATIONSHIP
OF THE DECEDENT TO RESPONDENT SHOULD HAVE BEEN SUBMITTED TO THE JURY
BUT, IN ORDER TO MEET SEC. 104'S DEFINITION, IT SHOULD LIKEWISE HAVE
PASSED UPON WHETHER THE EMPLOYMENT, IF ANY, WAS "CASUAL" AND NOT "IN
THE REGULAR COURSE" OF RESPONDENT'S BUSINESS.  OUR OPINION IN BYRD CAME
DOWN SUBSEQUENT TO ARGUMENT IN THE COURT OF APPEALS.  AS WE SAID IN
THAT CASE "AN ESSENTIAL CHARACTERISTIC OF (THE FEDERAL SYSTEM) IS THE
MANNER IN WHICH, IN CIVIL COMMON-LAW ACTIONS, IT DISTRIBUTES TRIAL
FUNCTIONS BETWEEN JUDGE AND JURY  ...  (ASSIGNING THE DECISIONS OF
DISPUTED QUESTIONS OF FACT TO THE JURY."  BYRD V. BLUE RIDGE RURAL
ELECTRIC COOP., SUPRA, AT 537.  WE FOUND THERE THAT THE SOUTH CAROLINA
RULE IN COMPENSATION CASES, PERMITTING COURTS TO DECIDE SUCH FACTUAL
ISSUES WITHOUT THE AID OF JURIES, WAS NOT "ANNOUNCED AS AN INTEGRAL
PART OF THE SPECIAL RELATIONSHIP CREATED BY THE STATUTE."  ID., AT
536.  WE HELD THAT UNDER SUCH CIRCUMSTANCES "THE FEDERAL COURT SHOULD
NOT FOLLOW THE STATE RULE."  ID., AT 538.  THE SAME REASONING APPLIES
HERE.  WE HAVE BEEN GIVEN NO REASON FOR THE DISTINCTION IN THE
PENNSYLVANIA PRACTICE OF TRYING SUCH DISPUTED FACTUAL ISSUES TO THE
COURT.  RESPONDENT DOES NOT CLAIM THAT THE RULE IS AN "INTEGRAL PART OF
THE SPECIAL RELATIONSHIP" CREATED BY ITS STATUTE BUT RATHER THAT THE
DISPUTED ISSUE OF EMPLOYMENT WAS IN FACT SUBMITTED TO THE JURY.  IT
CANNOT BE GAINSAID THAT ALL OF THE DISPUTED ISSUES WERE NOT SO
SUBMITTED.  IN ORDER TO DETERMINE WHETHER THE PENNSYLVANIA ACT BARS
RECOVERY HERE THE COURT MUST HAVE A FULL ANSWER AS TO THE STATUS OF THE
DECEDENT AS AN EMPLOYEE UNDER SEC. 104 OF THE ACT.  IF THE JURY, UNDER
PROPER INSTRUCTIONS, FINDS FACTS WHICH SHOW THAT, UNDER SEC. 104, THE
DECEDENT WAS RESPONDENT'S EMPLOYEE AND THAT SUCH EMPLOYMENT WAS
"CASUAL" AND NOT "IN THE REGULAR COURSE" OF RESPONDENT'S BUSINESS, THEN
IT CAN FIND FOR PETITIONER. 

WE ARE THEREFORE OF THE OPINION THAT A NEW TRIAL ON THE WHOLE CASE IS
NECESSARY, SINCE THESE DISPUTED ISSUES ARE SO INTERRELATED WITH THE
ULTIMATE ISSUES OF LIABILITY AND DAMAGES THAT A LIMITED HEARING WOULD
NOT BE IN THE INTEREST OF FAIRNESS AND EFFICIENCY IN JUDICIAL
ADMINISTRATION.  IF THE EVIDENCE ON THAT TRIAL IS SUCH AS TO JUSTIFY
WITH REASON DIFFERENT CONCLUSIONS ON THE FACTUAL ISSUES AS TO THE
RELATIONSHIP OF DECEDENT AS AN EMPLOYEE, UNDER SEC. 104 OF
PENNSYLVANIA'S ACT, OF EITHER RESPONDENT OR ITS CONTRACTOR FIDLER,
RESOLUTION OF THOSE ISSUES, ALONG WITH OTHERS THAT ARISE FROM THE
EVIDENCE, WILL BE FOR THE JURY.  THE JURY'S VERDICT AT THE TRIAL WILL
DETERMINE IF AS WELL AS IN WHAT AMOUNT PETITIONER MAY RECOVER IN THIS
ACTION.  REVERSED AND REMANDED. 

FN1  ALSO SEE 49 STAT. 557, AS AMENDED, 49 U.S.C. SEC. 315, WHICH
PROVIDES THAT A CERTIFICATE HOLDER MUST CARRY INSURANCE TO SATISFY ANY
FINAL JUDGMENT FOR INJURIES DUE TO THE "NEGLIGENT  ... USE OF MOTOR
VEHICLES UNDER SUCH CERTIFICATE." 

FN2  "INTERROGATORY NUMBER 1.  UNDER THE EVIDENCE IN THIS CASE, DO
YOU FIND THAT AN UNFORESEEN CONTINGENCY AROSE WHICH MADE IT REASONABLY
NECESSARY FOR THE PROTECTION OF THE DEFENDANT'S INTERESTS THAT THE
DRIVER CHARLES SCHROYER ENGAGE THE DECEDENT NORMAN ORMSBEE, JR. TO
ACCOMPANYING HIM FOR THE REMAINDER OF THE TRIP?" 

FN3  SECTION 104 OF THE PENNSYLVANIA WORKMEN'S COMPENSATION ACT,
PURDON'S PA. STAT.  ANN., 1952, TIT. 77, SEC. 22, CUM. SUPP.,
PROVIDES: 

"THE TERM 'EMPLOYEE,' AS USED IN THIS ACT IS DECLARED TO BE
SYNONYMOUS WITH SERVANT, AND INCLUDES:

"ALL NATURAL PERSONS WHO PERFORM SERVICES FOR ANOTHER FOR A VALUABLE
CONSIDERATION, EXCLUSIVE OF PERSONS WHOSE EMPLOYMENT IS CASUAL IN
CHARACTER AND NOT IN THE REGULAR COURSE OF THE BUSINESS OF THE
EMPLOYER, AND EXCLUSIVE OF PERSONS TO WHOM ARTICLES OR MATERIALS ARE
GIVEN OUT TO BE MADE UP, CLEANED, WASHED, ALTERED, ORNAMENTED, FINISHED
OR REPAIRED, OR ADAPTED FOR SALE IN THE WORKER'S OWN HOME, OR ON OTHER
PREMISES, NOT UNDER THE CONTROL OR MANAGEMENT OF THE EMPLOYER.  EVERY
EXECUTIVE OFFICER OF A CORPORATION ELECTED OR APPOINTED IN ACCORDANCE
WITH THE CHARTER AND BY-LAWS OF THE CORPORATION, EXCEPT ELECTED
OFFICERS OF THE COMMONWEALTH OR ANY OF ITS POLITICAL SUBDIVISIONS,
SHALL BE AN EMPLOYEE OF THE CORPORATION." 

MR JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

THE ISSUES IN THIS CASE HAVE HAD A SHIFTING HISTORY.  TODAY THE
PROBLEM OF THE CASE APPEARS TO BE CAST INTO THESE QUESTIONS:  WAS THE
ISSUE OF DECEDENT ORMSBEE'S EMPLOYMENT SUBMITTED TO THE JURY AND, IF
NOT, SHOULD IT HAVE BEEN?  BUT AT TRIAL THE EVIDENCE MASSED ON BOTH
SIDES WAS TO PROVE OR DISPROVE THAT DECEDENT WAS A TRESPASSER.  IN THE
COURSE OF SHOWING HE WAS SOMETHING OTHER THAN A TRESPASSER, PETITIONER
INTRODUCED EVIDENCE WHICH TENDED TO PROVE THAT DECEDENT WAS IN FACT A
TEMPORARY EMPLOYEE OF RESPONDENT, HIRED BY THE TRUCK DRIVER TO AID IN
AN EMERGENCY.  RESPONDENT COUNTERED BY URGING THAT THE EVIDENCE
INTRODUCED BY PETITIONER, IF BELIEVED, PROVIDED DECEDENT WAS AN
EMPLOYEE OF AETNA AND THEREFORE, UNDER APPLICABLE PENNSYLVANIA LAW,
DEPRIVED PETITIONER OF A COMMON-LAW REMEDY AGAINST AETNA.  THE TRIAL
JUDGE, BELIEVING EMPLOYMENT TO BE A QUESTION OF LAW, RESERVED UNTIL
AFTER THE VERDICT A RULING ON THE EFFECT OF THE PENNSYLVANIA WORKMEN'S
COMPENSATION ACT, PURDON'S PA. STAT. ANN., 1952, TIT. 77, SECS.  22,
52, 462.  AND SO, PUTTING ASIDE THIS QUESTION, AND KEEPING THE ORIGINAL
ISSUE REGARDING THE STATUS OF DECEDENT AS A TRESPASSER IN MIND, THE
JUDGE FRAMED ONE OF THE FOUR INTERROGATORIES SUBMITTED TO THE JURY TO
ELICIT ITS OPINION WHETHER DECEDENT WAS OR WAS NOT A TRESPASSER.  THE
JURY FOUND THAT HE WAS NOT BY ANSWERING THE FOLLOWING INTERROGATORY IN
THE AFFIRMATIVE: 

"UNDER THE EVIDENCE IN THIS CASE, DO YOU FIND THAT AN UNFORESEEN
CONTINGENCY AROSE WHICH MADE IT REASONABLY NECESSARY FOR THE PROTECTION
OF THE DEFENDANT'S INTERESTS THAT THE DRIVER CHARLES SCHROYER ENGAGE
THE DECEDENT NORMAN ORMSBEE, JR. TO ACCOMPANY HIM FOR THE REMAINDER OF
THE TRIP?" 

THE JURY ALSO RETURED A GENERAL VERDICT FOR PETITIONER. 

IN HIS OPINION REFUSING AETNA'S MOTIONS FOR A NEW TRIAL OR JUDGMENT
NOTWITHSTANDING THE VERDICT, THE TRIAL JUDGE REASONED THAT THE
PENNSYLVANIA ACT DID NOT BAR PETITIONER'S RECOVERY AT COMMON LAW
BECAUSE THE NATURE OF DECEDENT'S EMPLOYMENT DID NOT, UNDER THE
PENNSYLVANIA DECISIONS, BRING HIM UNDER THE WORKMAN'S COMPENSATION
ACT.  161 F. SUPP.  875.  THE COURT OF APPEALS DISAGREED WITH THE TRIAL
JUDGE'S INTERPRETATION OF THE INTERROGATORY, OF THE PENNSYLVANIA
STATUTE AND OF THE DECISIONS THEREUNDER.  REVIEWING THE JURY'S VERDICT
FOR DECEDENT'S ADMINISTRATOR, THAT COURT HELD THAT THE AFFIRMATIVE
ANSWER TO THE INTERROGATORY NECESSITATED A FINDING THAT DECEDENT WAS AN
EMPLOYEE OF AETNA WITHIN THE DEFINITION OF THAT STATUS IN THE
PENNSYLVANIA ACT AND THAT THEREFORE THE ONLY REMEDY WAS UNDER THAT
ACT.  257 F.2D 445.  IN SO DOING, THE COURT WAS APPLYING TO FACTS AS
FOUND BY A JURY THE LAW MADE APPLICABLE TO THE PARTIES TO THIS ACTION
BY ERIE R. CO. V. TOMPKINS, 304 U.S. 64, AND THE RULES OF DECISION ACT,
28 U.S.C. SEC. 1652.    PETITIONER NOW ASSERTS THAT OUR OPINION IN BYRD
V. BLUE RIDGE RURAL ELECTRIC COOPERATIVE, INC., 356 U.S. 525, REQUIRED
THE JURY IN THE FEDERAL COURTS TO DECIDE THE ISSUE OF EMPLOYMENT AND
THAT THE JURY DID NOT MAKE THAT DETERMINATION HERE.  TO AGREE WITH THIS
SECOND PROPOSITION WE MUST EITHER FIND THAT THE COURT OF APPEALS
TOTALLY MISINTERPRETED THE ANSWER OF THE JURY TO THE INTERROGATORY OR
THAT THE RULE STATED IN BYRD REQUIRES NOT ONLY THAT DISPUTED QUESTIONS
OF FACT BE SUBMITTED TO THE JURY BUT ALSO THAT THE APPLICATION OF LAW
TO FACTS LIKEWISE RESTS WITH THE JURY.  THE FORMER RULING WOULD DEVIATE
FROM THE SETTLED PRACTICE OF THIS COURT OT ACCEPT THE INTERPRETATION OF
PROCEEDINGS BELOW ADOPTED BY THE COURT OF APPEALS UNLESS THAT
INTERPRETATION IS BASELESS.  (FN1)  MOREOVER, THE RULING OF THE COURT
OF APPEALS WAS BASED PRIMARILY ON AN INTERPRETATION OF PENNYSLVANIA LAW
AND NOT ON AN EXTRAPOLATION FROM THE JURY'S FINDING.  JUDGE GOODRICH
HELD THAT "WE CANNOT ESCAPE THE CONCLUSION THAT THE JURY FINDING THAT
AUTHORIZED THE HIRING OF ORMSBEE PUT HIM INTO THE REGULAR BUSINESS OF
THE DEFENDANT, NAMELY, TRANSPORTATION OF GOODS BY TRUCK.  IF THAT WAS
NOT WHAT HE WAS DOING, HE HAD NO BUSINESS RIDING WITH SCHROYER AT
ALL."  257 F.2D, AT 448.  THUS THE COURT OF APPEALS APPLIED THE JURY
FOUND FACTS TO THE COURT-INTERPRETED STATUTE AND SAID THAT THE
PENNSYLVANIA LAW BARRED A COMMON-LAW REMEDY.  WE SHOULD NOT REVIEW HERE
THE FINDING OF THE COURT OF APPEALS ON THE MEANING OF THE PENNSYLVANIA
STATUTE.  THIS COURT HAS REPEATEDLY DEFERRED TO DECISIONS ON LOCAL LAW
REACHED BY THE LOWER FEDERAL COURTS.  (FN2)  WHAT REASON IS THERE TO
DEVIATE FROM THAT PRACTICE IN THIS CASE?  THE MEANING GIVEN TO THE
PENNSYLVANIA STATUTORY LANGUAGE AND TO THE CASES INTERPRETING IT WAS
THE DETERMINATION OF THREE UNCOMMONLY EXPERIENCED PENNSYLVANIA CIRCUIT
JUDGES.  FINALLY, NO PRIOR FEDERAL CASE WOULD JUSTIFY A RULING THAT IN
THE FEDERAL COURTS APPLICATION OF LAW TO FACT IS A JURY FUNCTION. 
(FN3)  NOR DOES HISTORICAL ANALYSIS SUPPORT THE ASSUMPTION THAT SUCH
WAS THE CASE AT THE TIME OF THE ADOPTION OF THE SEVENTH AMENDMENT. 
(FN4)  WHETHER A GIVEN SET OF FACTS CONSTITUTES AN EMPLOYMENT
RELATIONSHIP IS A PURE QUESTION OF LAW AND AS SUCH NOT WITHIN A JURY'S
PROVINCE.  THE CHARGE, INTERROGATORY, AND ANSWER THERETO, AS REASONABLY
INTERPRETED BY THE COURT OF APPEALS, DO NOT PERMIT THE CONCLUSION THAT
ISSUES WERE WITHHELD FROM THE JURY WHICH WERE WITHIN ITS SPHERE OF
POWER, DUTY, AND CAPABILITY. 

BUT SUPPOSE IT BE CORRECT TO CONCLUDE THAT THE COURT OF APPEALS ERRED
IN ITS OPINION THAT THE JURY RESOLVED ALL RELEVANT FACTUAL INQUIRIES. 
STILL THE PETITIONER HAS NO CASE THAT SHOULD PREVAIL HERE.   FOR NOT
ONLY DID THE PETITIONER FAIL AT TRIAL TO REQUEST THE QUESTION OF
EMPLOYMENT TO BE SUBMITTED TO A JURY, HE HIMSELF STATED DURING THE
COURSE OF THE TRIAL THAT EMPLOYMENT WAS A QUESTION OF LAW.  (FN5)  AND
WHEN THE TRIAL JUDGE SAID THAT HE BELIEVED THAT AS A QUESTION OF LAW IT
OUGHT NOT TO BE SUBMITTED TO A JURY, THE PETITIONER DID NOT CLAIM
OTHERWISE.  (FN6)  INDEED IT WAS THE RESPONDENT WHO REQUESTED THAT THE
QUESTION BE SUBMITTED TO THE JURY AND WHO OBJECTED WHEN THIS REQUEST
WAS REFUSED.  I SHALL CONTINUE TO BELIEVE IT TO BE LAW IN CIVIL CASES
IN THE FEDERAL COURTS THAT, BARRING SOME EXTRAORDINARY CIRCUMSTANCES
NOT HERE PRESENT, FAILURE TO REQUEST A GIVEN ISSUE TO BE SUBMITTED TO A
JURY CONSTITUTES A WAIVER OF ANY RIGHT TO SUCH SUBMISSION.  (FN7)  THE
LEAST REQUISITE FOR RAISING SUCH FAILURE ON APPEAL IS NOTICE TO THE
TRIAL COURT BY WAY OF AN OBJECTION.  (FN8) 

CERTIORARI WAS GRANTED UPON A PETITION WHICH URGED THAT THE COURT OF
APPEALS HAD SO RULED AS TO DEPRIVE PETITIONER OF THE RIGHT TO A JURY
DETERMINATION OF EMPLOYMENT STATUS AND THUS THAT THE CASE RAISED THE
SAME BASIC QUESTION AS THAT DEALT WITH BY THIS COURT IN BYRD.  MORE
PARTICULAR CONSIDERATION THAN COULD BE EXPECTED TO BE GIVEN TO THE
PETITION FOR CERTIORARI (FN9) HAS MADE IT APPARENT THAT NEITHER
STATEMENT IS CORRECT.  THE BRIEFS ON THE MERITS AND ORAL ARGUMENT MADE
IT INESCAPABLY CLEAR THAT PETITIONER FAILED TO PRESENT A CASE WHICH
QUALIFIES FOR OUR CONSIDERATION IN THE LIGHT OF THE HISTORICAL
DEVELOPMENT OF OUR CERTIORARI JURISIDCTION (FN10) AND THE RULE WHICH WE
HAVE PROMULGATED TO GUIDE ITS EXERCISE.  (FN11)  THIS IS AN ORDINARY
DIVERSITY CASE TURNING SOLELY ON THE APPLICATION OF PENNSYLVANIA LAW TO
A UNIQUE SET OF FACTS AND INVOLVING NO QUESTION WHICH JUSTIFIES REVIEW
UNDER OUR DISCRETIONARY JURISDICTION.  WHEN THE COURT HAS DISCOVERED,
EVEN AFTER ARGUMENT, THAT THERE EXISTED NO QUESTION SUITABLE FOR THIS
COURT'S DETERMINATION, CERTIORARI HAS BEEN DISMISSED AS IMPROVIDENTLY
GRANTED.  (FN12)  THE REASONS FOR SUCH A DISPOSITION OF A CASE EVEN
AFTER ARGUMENT - ACTION SO OFTEN TAKEN AS FAIRLY TO BE PART OF THE
SETTLED PRACTICE OF THE COURT - WERE THUS EXPOUNDED BY MR. CHIEF
JUSTICE TAFT: 

"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."  (FN13) 

AND SO, SINCE UPON FULL CONSIDERATION OF THIS CASE IT BECOMES CLEAR
THAT THE COMPLAINED-OF ERROR WAS PROBABLY NOT COMMITTED AND THAT IN ANY
EVENT PETITIONER IS NOT IN A POSITION TO ASSERT IT, DUE REGARD FOR THE
CONTROLLING IMPORTANCE OF OBSERVING THE CONDITIONS FOR THE PROPER
EXERCISE OF OUR DISCRETIONARY JURISDICTION REQUIRES THAT THE WRIT OF
CERTIORARI SHOULD BE DISMISSED AS IMPROVIDENTLY GRANTED. 

FN1  SEE, E.G., LABOR BOARD V. PITTSBURG S.S. CO., 340 U.S. 498, 502
503; FEDERAL TRADE COMM'N V. AMERICAN TOBACCO CO., 274 U.S. 543. 

FN2  RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496, 499; REITZ V.
MEALEY, 314 U.S. 33, 39; MACGREGOR V. STATE MUTUAL LIFE ASSURANCE CO.,
315 U.S. 280, 281; HELVERING V. STUART, 317 U.S. 154, 162-163, MODIFIED
ON OTHER GROUNDS, 317 U.S. 602; PALMER V. HOFFMAN, 318 U.S. 109, 118;
HUDDLESTON V. DWYER, 322 U.S. 232, 237; HILLSBOROUGH V. CROMWELL, 326
U.S. 620, 630; STEELE V. GENERAL MILLS, INC., 329 U.S. 433, 438-439;
GARDNER V. NEW JERSEY, 329 U.S. 565, 575; FRANCIS V. SOUTHERN PACIFIC
CO., 333 U.S. 445, 447-448; ESTATE OF SPEIGEL V. COMMISSIONER OF
INTERNAL REVENUE, 335 U.S. 701, 707-708; PROPPER V. CLARK, 337 U.S.
472, 486-487; RAGAN V. MERCHANTS TRANSFER & WAREHOUSE CO., 337 U.S.
530, 534; SKELLY OIL CO. V. PHILLIPS PETROLEUM CO., 339 U.S. 667, 674;
UNITED STATES V. GERLACH LIVE STOCK CO., 339 U.S. 725, 755; WILLIAMS V.
UNITED STATES, 341 U.S. 97, 100; SUTTON V. LEIB, 342 U.S. 402, 411;
BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198, 204-205; ID., AT 209, 212
(CONCURRING OPINIONS); GENERAL BOX CO. V. UNITED STATES, 351 U.S. 159,
165; ID., AT 169-170 (DISSENTING OPINION). 

FN3  CF. EX PARTE PETERSON, 253 U.S. 300, 310:  "THE LIMITATION
IMPOSED BY THE SEVENTH AMENDMENT IS MERELY THAT ENJOYMENT OF THE RIGHT
OF TRIAL BY JURY BE NOT OBSTRUCTED, AND THAT THE ULTIMATE DETERMINATION
OF ISSUES OF FACT BY THE JURY BE NOT INTERFERED WITH." 

FN4  SEE SCOTT, TRIAL BY JURY AND THE REFORM OF CIVIL PROCEDURE, 31
HARV. L. REV. 669, 684-686 (1918). 

FN5  "THE COURT:  IN OTHER WORDS, THE FINDING OF TRESPASSER IS A
CONCLUSION OF LAW. 

"MR. KNOX (ATTORNEY FOR PETITIONER):  THE SAME AS EMPLOYEES." 
TRANSCRIPT OF RECORD, P. 173A. 

FN6  "THE COURT:  I DON'T THINK IT IS NECESSARY TO HAVE THE JURY FIND
WHETHER HE WAS EMPLOYED OR NOT; I THINK THAT IS A QUESTION FOR THE
LAW."  TRANSCRIPT OF RECORD, P. 169A. 

FN7  SEE, E.G., PENNSYLVANIA R. CO. V. MINDS, 250 U.S. 368, 375;
SHUTTE V. THOMPSON, 15 WALL.  151, 164. 

FN8  FED. RULES CIV. PROC., 49, 51. 

FN9  "WE ARE NOT AIDED BY ORAL ARGUMENTS AND NECESSARILY RELY IN AN
ESPECIAL WAY UPON PETITIONS, REPLIES AND SUPPORTING BRIEFS.  UNLESS
THESE ARE CAREFULLY PREPARED, CONTAIN APPROPRIATE REFERENCES TO THE
RECORD AND PRESENT WITH STUDIED ACCURACY, BREVITY AND CLEARNESS
WHATEVER IS ESSENTIAL TO READY AND ADEQUATE UNDERSTANDING OF POINTS
REQUIRING OUR ATTENTION, THE RIGHTS OF INTERESTED PARTIES MAY BE
PREJUDICED AND THE COURT WILL BE IMPEDED IN ITS EFFORTS PROPERLY TO
DISPOSE OF THE CAUSES WHICH CONSTANTLY CROWD ITS DOCKET."  FURNESS,
WITHY & CO. V. YANG-TSZE INS. ASSN., 242 U.S. 430, 434. 

FN10  SEE DICK V. NEW YORK LIFE INS. CO., 359 U.S. 437, 447
(DISSENTING OPINION). 

FN11  RULES OF THE SUPREME COURT OF THE UNITED STATES, RULE 19. 

FN12  LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, INC., 261 U.S.
387. 

FN13  ID., AT 393. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING. 

PLENARY CONSIDERATION OF THIS CASE, AND INDEED THE OPINION OF THE
MAJORITY OF THIS COURT, HAVE MADE IT CLEAR THAT THE COURT OF APPEALS
DEALT WITH THE FACTUAL ISSUES INVOLVED ON THE BASIS OF A CONCESSION BY
THE RESPONDENT AND THE JURY'S ANSWER TO INTERROGATORY NO. 1.  IT IS
THEREFORE NOW APPARENT THAT THIS CASE PRESENTS NO QUESTION CONCERNING
THE CLASSIFICATION OF THESE ISSUES AS FOR THE COURT OR FOR THE JURY
UNDER THE DECISION IN BYRD V. BLUE RIDGE RURAL COOPERATIVE, INC., 356
U.S. 525, AND THAT THE PREMISE ON WHICH WE GRANTED CERTIORARI WAS
ACCORDINGLY A MISTAKEN ONE.  AND WHETHER OR NOT THE COURT OF APPEALS IN
ACTING AS IT DID WAS CORRECT IN ITS ASSESSMENT OF THE TRIAL RECORD IS
CERTAINLY NOT A MATTER JUSTIFYING THE EXERCISE OF OUR CERTIORARI POWER
WITHIN THE CRITERIA OF RULE 19.  I THEREFORE AGREE WITH MY BROTHER
FRANKFURTER THAT THE WRIT OF CERTIORARI SHOULD BE DISMISSED AS
IMPROVIDENTLY GRANTED, AND JOIN IN HIS DISSENTING OPINION. 

EVEN IF A BYRD ISSUE COULD BE CONSIDERED AS PROPERLY PRESENTED, THE
MOST THAT SHOULD BE DONE IS TO REMAND THE CASE TO THE COURT OF APPEALS
FOR FURTHER CONSIDERATION IN LIGHT OF THAT DECISION.  A RETRIAL OF THIS
CASE WOULD BE JUSTIFIED UNDER BYRD ONLY IF THE PENNSYLVANIA PRACTICE
TREATING FACTUAL ISSUES UNDER SEC. 104 OF THE WORKMAN'S COMPENSATION
ACT AS FOR THE COURT, INSTEAD OF FOR THE JURY, SEE PERSING V. CITIZENS
TRACTION CO., 294 PA. 230, 144 A. 97; VESCIO V. PENNSYLVANIA ELECTRIC
CO., 336 PA. 502, 9 A.2D 546, IS MERELY A "FORM AND MODE" OF PROCEDURE
RATHER THAN "AN INTEGRAL PART" OF THE RIGHTS CREATED BY THE ACT. 
BEFORE DECIDING SUCH A DIFFICULT AND SUBTLE QUESTION OF LOCAL LAW, THIS
COURT SHOULD HAVE THE AID OF THE COURT OF APPEALS WHOSE MEMBERS ARE
MORE COMPETENT THAN WE TO SPEAK ON PENNSYLVANIA LAW. 
..END :






















ANONYMOUS NOS. 6 AND 7 V. BAKER 360 U.S. 287 


NO. 378.  ARGUED MARCH 25, 1959.  - DECIDED JUNE 15, 1959.  - 4 N.Y.2D
1034, 1035, 152 N.E.2D 651, AFFIRMED. 


APPELLANTS, WHO ARE LICENSED PRIVATE DETECTIVES AND PRIVATE
INVESTIGATORS, BUT NOT ATTORNEYS, WERE CONVICTED OF CONTEMPT FOR
REFUSAL TO ANSWER PERTINENT QUESTIONS PUT TO THEM AS WITNESSES SUMMONED
BEFORE A NEW YORK JUDGE WHO, PURSUANT TO COURT ORDER, WAS CONDUCTING A
NON-ADVERSARY, NON-PROSECUTORIAL, PRELIMINARY FACT-FINDING INQUIRY,
ANALOGOUS TO A GRAND JURY PROCEEDING, INTO ALLEGED UNETHICAL PRACTICES
OF ATTORNEYS AND OTHERS ACTING IN CONCERT WITH THEM.  APPELLANTS DID
NOT PLEAD THE STATE PRIVILEGE AGAINST SELF-INCRIMINATION BUT BASED
THEIR REFUSAL TO TESTIFY SOLELY ON THE FACT THAT THEIR COUNSEL WAS
REQUIRED TO REMAIN OUTSIDE THE HEARING ROOM WHILE THEY WERE BEING
INTERROGATED, THOUGH THE JUDGE HAD EXPRESSED HIS READINESS TO SUSPEND
THE QUESTIONING WHENEVER APPELLANTS WISHED TO CONSULT WITH COUNSEL.  IT
WAS CUSTOMARY FOR SUCH PROCEEDINGS TO BE KEPT SECRET, LIKE GRAND JURY
PROCEEDINGS, AND THIS PRACTICE WAS SANCTIONED BY NEW YORK STATUTE AND
BY THE COURT ORDER AUTHORIZING THE INQUIRY.  HELD: 

1.  SINCE THE VALIDITY UNDER THE FEDERAL CONSTITUTION OF THE STATE
STATUTE PERTAINING TO SUCH PROCEEDINGS WAS NOT "DRAWN INTO QUESTION" OR
PASSED UPON BY THE STATE COURTS IN THIS CASE, THIS COURT LACKS
JURISDICTION OF THIS APPEAL UNDER 28 U.S.C. SEC. 1257(2); BUT
CERTIORARI IS GRANTED.  P. 290. 

2.  PETITIONER'S CONVICTION OF CONTEMPT FOR REFUSAL TO TESTIFY IN
THESE CIRCUMSTANCES DID NOT OFFEND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  IN RE GROBAN, 352 U.S. 330.  PP. 290-298. 

(A)  THE REQUIREMENT OF THE AUTHORIZING COURT ORDER THAT THE INQUIRY
BE PRIVATE AND THE EXCLUSION OF COUNSEL FOR THE WITNESSES FROM THE
HEARING ROOM WERE NOT PROCEDURAL INNOVATIONS, BUT WERE IN ACCORDANCE
WITH ESTABLISHED STATE POLICY.  PP. 290-294. 

(B)  TO DECLARE SUCH A POLICY UNCONSTITUTIONAL WOULD NECESSITATE
IGNORING WEIGHTY CONSIDERATIONS SUPPORTING IT AND WOULD REQUIRE GOING
FAR BEYOND ANYTHING INDICATED BY THIS COURT'S PAST "RIGHT TO COUNSEL"
DECISIONS UNDER THE FOURTEENTH AMENDMENT.  PP. 294-296. 

(C)  NOTWITHSTANDING AN INFORMAL STATEMENT MADE BY A STAFF ASSISTANT,
THE RECORD IN THIS CASE DOES NOT WARRANT A CONCLUSION THAT APPELLANTS
WERE BEING QUESTIONED NOT MERELY AS WITNESSES BUT WITH AN EYE TO THEIR
FUTURE PROSECUTION.  PP. 296-298. 

ANONYMOUS NOS. 6 AND 7 V. BAKER, JUSTICE OF THE SUPREME COURT OF NEW
YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS HAVE BEEN CONVICTED OF CONTEMPT  FOR REFUSAL TO ANSWER
PERTINENT QUESTIONS PUT TO THEM AS WITNESSES SUMMONED IN A STATE
JUDICIAL INQUIRY INTO ALLEGED IMPROPER PRACTICES AT THE LOCAL BAR.  THE
SOLE ISSUE BEFORE US IS WHETHER THIS CONVICTION OFFENDED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION
BY REASON OF THE FACT THAT THE JUSTICE IN CHARGE OF THE INQUIRY HAD
REQUIRED COUNSEL RETAINED BY APPELLANTS TO REMAIN OUTSIDE THE HEARING
ROOM WHILE THEY WERE BEING INTERROGATED, EVEN THOUGH HE EXPRESSED HIS
READINESS TO SUSPEND THE COURSE OF QUESTIONING WHENEVER APPELLANTS
WISHED TO CONSULT WITH COUNSEL.  NO CLAIM IS MADE THAT APPELLANTS WERE
NOT FULLY REPRESENTED BY COUNSEL IN THE CONTEMPT PROCEEDINGS THEMSELVES
OR THAT SUCH PROCEEDINGS WERE OTHERWISE LACKING IN DUE PROCESS. 

ON JANUARY 21, 1957, THE APPELLATE DIVISION OF THE SUPREME COURT OF
THE STATE OF NEW YORK, SECOND DEPARTMENT, ACTING PURSUANT TO SEC. 90 OF
THE STATE JUDICIARY LAW, 29 N.Y. LAWS ANN. SEC. 90 (MCKINNEY 1948), AND
IN RESPONSE TO A PETITION OF THE BROOKLYN BAR ASSOCIATION CHARGING
"AMBULANCE CHASING" AND RELATED UNETHICAL PRACTICES AMONG SEGMENTS OF
THE KINGS COUNTY BAR, (FN1) ORDERED AN INVESTIGATION INTO THESE ALLEGED
CONDTITIONS BY AN ADDITIONAL SPECIAL TERM OF THE SUPREME COURT, MR.
JUSTICE ARKWRIGHT PRESIDING.  (FN2)

APPELLANTS, LICENSED PRIVATE DETECTIVES AND INVESTIGATORS, BUT NOT
ATTORNEYS, APPEARED BEFORE THE SPECIAL TERM PURSUANT TO WITNESS
SUBPOENAS, ACCOMPANIED BY COUNSEL.  THE PRESIDING JUSTICE, ACTING UPON
THE AUTHORITY OF AN APPELLATE DECISION MADE DURING THE COURSE OF THIS
SAME INQUIRY, MATTER OF M. ANONYMOUS V. ARKWRIGHT, 5 APP. DIV. 2D 790,
170 N.Y.S.2D 535, LEAVE TO APPEAL DENIED, 4 N.Y.2D 676, 173 N.Y.S.2D
1025, 149 N.E.2D 538, INFORMED APPELLANTS THAT THEIR COUNSEL WOULD NOT
BE ALLOWED IN THE HEARING ROOM WHILE THEY WERE BEING QUESTIONED, BUT
THAT THEY WOULD BE FREE TO CONSULT WITH HIM AT ANY TIME DURING THEIR
INTERROGATION.  SOLELY BECAUSE OF THAT LIMITATION UPON THE
PARTICIPATION OF COUNSEL, APPELLANTS THEREAFTER REFUSED TO ANSWER ALL
MANNER OF QUESTIONS PUT TO THEM.  THEIR CONVICTION FOR CONTEMPT,
CARRYING A SENTENCE OF 30 DAYS' IMPRISONMENT, FOLLOWED.  (FN3)  THE
APPELLATE DIVISION AFFIRMED, 6 APP. DIV. 2D 719, 176, N.Y.S.2D 227, AND
THE NEW YORK COURT OF APPEALS, FINDING THAT "NO SUBSTANTIAL
CONSTITUTIONAL QUESTION IS INVOLVED," DISMISSED ENSUING APPEALS.  4
N.Y.2D 1034, 1035, 152 N.E.2D 651, 177 N.Y.2D 687.  APPELLANTS,
PROCEEDING UNDER 28 U.S.C. SEC. 1257(2), (FN4) THEN APPEALED TO THIS
COURT, AND WE POSTPONED FURTHER CONSIDERATION OF JURISDICTION TO A
HEARING ON THE MERITS.  358 U.S. 891. 

DEALING FIRST WITH THE QUESTION OF OUR JURISDICTION, WE THINK IT
CLEAR THAT THIS APPEAL MUST BE DISMISSED.  IT IS PREDICATED ON THE
GROUND THAT THE STATE COURTS HELD VALID UNDER THE FEDERAL CONSTITUTION
SEC. 90(10) OF NEW YORK'S JUDICIARY LAW (SEE NOTE 6, INFRA), SAID TO BE
THE BASIS OF THE SPECIAL TERM PROCEDURE HERE ATTACKED.  HOWEVER, IT
APPEARS THAT THE FEDERAL CONSTITUTIONALITY OF SEC. 90(10) WAS NEVER
"DRAWN IN QUESTION" OR PASSED UPON IN THE STATE COURTS; THE APPELLATE
DIVISION, FROM WHOSE DECISION THE COURT OF APPEALS DENIED LEAVE TO
APPEAL, SIMPLY RELIED ON THE EARLIER CASES OF MATTER OF M. ANONYMOUS V.
ARKWRIGHT, SUPRA, AND MATTER OF S. ANONYMOUS, V. ARKWRIGHT, 5 APP.
DIV. 2D 792, 170 N.Y.S.2D 538, WHICH IN TURN APPEAR NOT TO HAVE
INVOLVED SUCH AN ADJUDICATION.  IN THESE CIRCUMSTANCES WE MUST HOLD
THAT WE LACK JURISDICTION UNDER 28 U.S.C. SEC. 1257(2)   NEVERTHELESS,
TREATING THE APPEAL AS A PETITION FOR WRIT OF CERTIORARI, WE GRANT THE
WRIT.   28 U.S.C. SEC. 2103. 

WE TURN TO THE MERITS.  AN UNDERSTANDING OF THE NATURE OF THE
PROCEEDINGS BEFORE THE SPECIAL TERM IS FIRST NECESSARY.  IN NEW YORK
THE TRADITIONAL POWERS OF THE COURTS OVER THE ADMISSION, DISCIPLINE,
AND REMOVAL OF MEMBERS OF THE BAR IS PLACED BY LAW IN THE APPELLATE
DIVISION OF THE STATE SUPREME COURT.  N.Y. JUDICIARY LAW SEC. 90.  WHEN
THE APPELLATE DIVISION IS APPRISED OF CONDITIONS CALLING FOR GENERAL
INQUIRY IT USUALLY APPOINTS, AS HERE, A JUSTICE OF THE SUPREME COURT,
SITTING AT SPECIAL TERM, TO MAKE A PRELIMINARY INVESTIGATION.  THE
DUTIES OF SUCH A JUSTICE ARE PURELY INVESTIGATORY AND ADVISORY,
CULMINATING IN ONE OR MORE REPORTS TO THE APPELLATE DIVISION UPON WHICH
FUTURE ACTION MAY THEN BE BASED.  IN THE WORDS OF MR. JUSTICE CARDOZO,
THEN CHIEF JUDGE OF THE NEW YORK COURT OF APPEALS, THE PROCEEDINGS AT
SPECIAL TERM THUS SIMPLY CONSTITUTE A "PRELIMINARY INQUISITION, WITHOUT
ADVERSARY PARTIES, NEITHER ENDING IN ANY DECREE NOR ESTABLISHING ANY
RIGHT  ...  A QUASI-ADMINISTRATIVE REMEDY WHEREBY THE COURT IS GIVEN
INFORMATION THAT MAY MOVE IT TO OTHER ACTS THEREAFTER  ...  ."  PEOPLE
EX REL. KARLIN V. CULKIN, 248 N.Y. 465, 479, 162 N.E. 487, 492. 

CUSTOMARILY THE PROCEEDINGS AT SPECIAL TERM ARE CONDUCTED IN PRIVATE,
FOR REASONS WHICH MR. JUSTICE CARDOZO EXPLAINED IN THE KARLIN CASE AS
FOLLOWS (248 N.Y., AT 478-479, 162 N.E., AT 492): 

"THE ARGUMENT IS PRESSED THAT IN CONCEDING TO THE COURT A POWER OF
INQUISITION WE PUT INTO ITS HANDS A WEAPON WHEREBY THE FAIR FAME OF A
LAWYER, HOWEVER INNOCENT OF WRONG, IS AT THE MERCY OF THE TONGUE OF
IGNORANCE OR MALICE.  REPUTATION IN SUCH A CALLING IS A PLANT OF TENDER
GROWTH, AND ITS BLOOM, ONCE LOST, IS NOT EASILY RESTORED.  THE MERE
SUMMONS TO APPEAR AT SUCH A HEARING AND MAKE REPORT AS TO ONE'S
CONDUCT, MAY BECOME A SLUR AND A REPROACH.  DANGERS ARE INDEED HERE,
BUT NOT WITHOUT A REMEDY.  THE REMEDY IS TO MAKE THE INQUISITION A
SECRET ONE IN ITS PRELIMINARY STAGES.  THIS HAS BEEN DONE IN THE FIRST
JUDICIAL DEPARTMENT, AT LEAST IN MANY INSTANCES, BY THE ORDER OF THE
JUSTICE PRESIDING AT THE HEARING.  IT HAS BEEN DONE IN THE SECOND
JUDICIAL DEPARTMENT  ...  BY ORDER OF THE APPELLATE DIVISION DIRECTING
THE INQUIRY.  A PRELIMINARY INQUISITION  ...  IS NOT A SITTING OF A
COURT WITHIN THE FAIR INTENDMENT OF SECTION 4 OF THE JUDICIARY LAW
WHEREBY SITTINGS OF A COURT ARE REQUIRED TO BE PUBLIC  ...  .  THE
CLOSEST ANALOGUE IS AN INQUISITION BY THE GRAND JURY FOR THE DISCOVERY
OF CRIME." 

BY ANALOGY TO GRAND JURY PROCEEDINGS COUNSEL ARE NOT PERMITTED TO
ATTEND THE EXAMINATION OF WITNESSES CALLED IN SUCH AN INVESTIGATION,
CF. PEOPLE EX REL. MCDONALD V. KEELER, 99 N.Y. 463, 485, 2 N.E. 615,
626-627, (FN5) ALTHOUGH THE NEW YORK COURTS HAVE HELD THAT THE SPECIAL
TERM MAY IN ITS DISCRETION PERMIT SUCH ATTENDANCE WHERE IT APPEARS THAT
THE WITNESS HIMSELF IS A TARGET OF THE INQUIRY.  SEE MATTER OF M.
ANONYMOUS V. ARKWRIGHT, SUPRA, 5 APP. DIV. 2D, AT 791, 170 N.Y.S.2D, AT
538. 

THESE PRACTICES HAVE RECEIVED LEGISLATIVE APPROVAL, EVIDENCED BY SEC.
90(10) OF THE STATE JUDICIARY LAW, QUOTED IN THE MARGIN, (FN6) AND BY
THE LEGISLATURE'S REFUSAL IN 1958 TO AMEND THE STATE CIVIL RIGHTS LAW,
8 N.Y. LAWS ANN. SEC. 1-242 (MCKINNEY 1948), SO AS TO REQUIRE THAT
COUNSEL BE ALLOWED TO ATTEND THE INTERROGATION OF WITNESSES IN
PROCEEDINGS OF THIS CHARACTER.  (FN7) 

THUS, WHAT WE HAVE HERE IN THE APPELLATE DIVISION'S ORDER THAT THE
INQUIRY BE PRIVATE (FN8) AND IN THE SPECIAL TERM'S EXCLUSION OF COUNSEL
FROM THE HEARING ROOM IS NOT A PROCEDURAL INNOVATION BY A PARTICULAR
COURT OR JUDGE IN A PARTICULAR CASE, BUT AN EXPRESSION OF ESTABLISHED
STATE POLICY.  WE ARE NOT ASKED TO DECLARE THAT POLICY
UNCONSTITUTIONAL. 

TO DO SO WOULD NOT ONLY NECESSITATE OUR IGNORING THE WEIGHTY
CONSIDERATIONS WHICH SUPPORT NEW YORK'S POLICY, BUT WOULD REQUIRE US TO
LIMIT STATE POWER IN THIS AREA OF INVESTIGATION FAR BEYOND ANYTHING
INDICATED BY THIS COURT'S PAST "RIGHT TO COUNSEL" DECISIONS UNDER THE
FOURTEENTH AMENDMENT.   ALTHOUGH WE HAVE HELD THAT IN STATE CRIMINAL
PROCEEDINGS, WHICH THESE ARE NOT, MATTER OF M. ANONYMOUS V. ARKWRIGHT,
SUPRA, A DEFENDANT HAS AN UNQUALIFIED RIGHT TO BE REPRESENTED AT TRIAL
BY RETAINED COUNSEL, CHANDLER V. FRETAG, 348 U.S. 3, WE HAVE NOT
EXTENDED THAT RIGHT TO THE INVESTIGATION STAGES OF SUCH PROCEEDINGS. 
SEE CICENIA V. LAGAY, 357 U.S. 504; SEE ALSO CROOKER V. CALIFORNIA, 357
U.S. 433.  AGAIN, WHILE IT HAS BEEN DECIDED THAT THERE IS A
CONSTITUTIONAL RIGHT TO COUNSEL IN A CRIMINAL CONTEMPT PROCEEDING,
GROWING OUT OF A STATE INVESTIGATION, CONDUCTED BEFORE A JUDGE SITTING
AS A "ONE MAN GRAND JURY," IN RE OLIVER, 333 U.S. 257, (FN9) WE HAVE
HELD THAT A WITNESS EXAMINED IN A STATE INVESTIGATION CONDUCTED IN
PRIVATE IS NOT CONSTITUTIONALLY ENTITLED TO THE ASSISTANCE OF COUNSEL
WHILE BEING INTERROGATED.  IN RE GROBAN, 352 U.S. 330. 

IN THE GROBAN CASE WE UPHELD THE CONSTITUTIONALITY OF AN OHIO STATUTE
(FN10) WHICH, AS CONSTRUED BY THE OHIO COURTS, AUTHORIZED THE FIRE
MARSHAL TO EXCLUDE FROM THE HEARING ROOM COUNSEL REPRESENTING THOSE
SUMMONED TO TESTIFY BEFORE HIM IN AN INVESTIGATION INTO THE CAUSES OF A
FIRE.  WE THERE SAID (AT 332-333): 

"THE FACT THAT APPELLANTS WERE UNDER A LEGAL DUTY TO SPEAK AND THAT
THEIR TESTIMONY MIGHT PROVIDE A BASIS FOR CRIMINAL CHARGES AGAINST THEM
DOES NOT MEAN THAT THEY HAD A CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF
THEIR COUNSEL.  APPELLANTS HERE ARE WITNESSES FROM WHOM INFORMATION WAS
SOUGHT AS TO THE CAUSE OF THE FIRE.  A WITNESS BEFORE A GRAND JURY
CANNOT INSIST, AS A MATTER OF CONSTITUTIONAL RIGHT, ON BEING
REPRESENTED BY HIS COUNSEL, NOR CAN A WITNESS BEFORE OTHER
INVESTIGATORY BODIES.  THERE IS NO MORE REASON TO ALLOW THE PRESENCE OF
COUNSEL BEFORE A FIRE MARSHAL TRYING IN THE PUBLIC INTEREST TO
DETERMINE THE CAUSE OF A FIRE.  OBVIOUSLY IN THESE SITUATIONS EVIDENCE
OBTAINED MAY POSSIBLY LAY A WITNESS OPEN TO CRIMINAL CHARGES.  WHEN
SUCH CHARGES ARE MADE IN A CRIMINAL PROCEEDING, HE THEN MAY DEMAND THE
PRESENCE OF HIS COUNSEL FOR HIS DEFENSE.  UNTIL THEN HIS PROTECTION IS
THE PRIVILEGE AGAINST SELF-INCRIMINATION."  (FOOTNOTES OMITTED.) 

THE GROBAN CASE IS CONTROLLING HERE AND REQUIRES REJECTION OF
APPELLANTS' CONSTITUTIONAL CLAIMS.  AS DID OHIO IN GROBAN, NEW YORK HAS
A PRIVILEGE AGAINST SELF-INCRIMINATION, N.Y. CONST., ART. I, SEC. 6,
WHICH WAS FREELY EXERCISED BY OTHER WITNESSES IN THIS INVESTIGATION,
(FN11) AND WAS FULLY AVAILABLE TO THESE APPELLANTS.  MOREOVER, THE
CIRCUMSTANCE THAT THIS INVESTIGATION WAS CONDUCTED BY AN EXPERIENCED
JUDGE, RATHER THAN AN ADMINISTRATIVE OFFICIAL, AND THE FACT THAT
APPELLANTS THROUGHOUT THEIR INTERROGATION WERE FREELY GIVEN THE RIGHT
TO CONSULT COUNSEL, NOTWITHSTANDING HIS EXCLUSION FROM THE HEARING
ROOM, MAKE THE CONSTITUTIONAL CLAIM HERE FAR LESS TENABLE THAN THAT
FOUND WANTING IN GROBAN. 

APPELLANTS SEEK TO ESCAPE FROM GROBAN BY ARGUING THAT THEY WERE
SUMMONED BEFORE THE SPECIAL TERM NOT AS MERE WITNESSES BUT WITH AN EYE
TO THEIR FUTURE PROSECUTION.  THIS CONTENTION RESTS UPON AN INFORMAL
"OFF THE RECORD" CONVERSATION WHICH APPELLANTS AND THEIR COUNSEL HAD
WITH AN ASSISTANT ON THE INQUIRY'S STAFF SOME FOUR MONTHS BEFORE
APPELLANTS WERE ACTUALLY EXAMINED.  IN RESPONSE TO COUNSEL'S INQUIRY AS
TO "WHAT WAS WANTED OF HIS CLIENTS IN THIS MATTER," THE ASSISTANT MADE
THE REPLIES SET FORTH IN THE MARGIN.  (FN12) 

WE THINK THAT THE ROLE IN WHICH THESE APPELLANTS WERE SUMMONED TO THE
INQUIRY IS TO BE JUDGED BY THE ACTIONS OF THE SPEICAL TERM, NOT BY THE
STATEMENTS OF A SUBORDINATE STAFF MEMBER, EVIDENTLY MOTIVATED BY
NOTHING MORE THAN A DESIRE TO AVOID A PLEA OF SELF-INCRIMINATION WHICH
WOULD HAVE BLOCKED THE INQUIRY FROM OBTAINING POSSIBLY HELPFUL
INFORMATION.  THE RECORD SHOWS THAT THE SPECIAL TERM, AWARE OF THE
CLAIMS AS TO THIS OCCURRENCE, WHICH IT CAUSED TO BE FULLY EXPLORED IN
THE PRESENCE OF APPELLANTS AND THEIR COUNSEL, REPEATEDLY ASSURED
APPELLANTS THAT THEY WERE BEFORE THE INQUIRY SOLELY AS WITNESSES. 
(FN13)  THAT THEY MIGHT LATER BE FACED WITH CRIMINAL CHARGES, ADDS
NOTHING TO THEIR PRESENT CONSTITUTIONAL CLAIM.  IN RE GORBAN, SUPRA, AT
322-333. 

THE FINAL ORDER OF THE COURT OF APPEALS OF THE STATE OF NEW YORK MUST
BE AFFIRMED. 

FN1  THE PETITION OF THE BAR ASSOCIATION ALLEGED, AMONG OTHER THINGS:
"THAT SUCH PRACTICES RESULT IN THE FOLLOWING:  UNFAIR AGREEMENTS OF
RETAINER; MAINTENANCE BY LAWYERS OF SOME SYSTEM OF OBTAINING PROMPT
INFORMATION OF ACCIDENTS; CONGESTION OF COURT CALENDARS BY UNWORTHY
CAUSES WHICH ARE NEVER INTENDED TO BE BROUGHT TO TRIAL; A FALSE
CONCEPTION BY LAWYERS ENGAGED IN THIS PRACTICE THAT THE RELATIONSHIP
BETWEEN ATTORNEY AND CLIENT IS A COMMERCIAL TRANSACTION IN WHICH THE
INTEREST OF THE CLIENT PLAYS AN UNIMPORTANT PART; IMPAIRMENT OF PUBLIC
CONFIDENCE IN THE COURTS; AND DELAY IN THE ADMINISTRATION OF JUSTICE." 

FN2  UPON MR. JUSTICE ARKWRIGHT'S RETIREMENT ON DECEMBER 31, 1958,
THE APPELLATE DIVISION DESIGNATED MR. JUSTICE EDWARD G. BAKER OF THE
NEW YORK SUPREME COURT AS HIS SUCCESSOR. 

FN3  EACH APPELLANT WAS ENLARGED ON BAIL AFTER SERVING TWO DAYS OF
HIS SENTENCE. 

FN4  "FINAL JUDGMENTS OR DECREES RENDERED BY THE HIGHEST COURT OF A
STATE IN WHICH A DECISION COULD BE HAD, MAY BE REVIEWED BY THE SUPREME
COURT AS FOLLOWS:           *         *         *         *         * 

"(2)  BY APPEAL, WHERE IS DRAWN IN QUESTION THE VALIDITY OF A STATUTE
OF ANY STATE ON THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION,
TREATIES OR LAWS OF THE UNITED STATES, AND THE DECISION IS IN FAVOR OF
ITS VALIDITY." 

FN5  IN INVESTIGATIONS OF THIS KIND NEW YORK HAS DEEMED "THE PRESENCE
OF LAWYERS  ...  NOT CONDUCIVE TO THE ECONOMICAL AND THOROUGH
ASCERTAINMENT OF THE FACTS."  IN RE GROBAN, 352 U.S. 330, 335, 336
(CONCURRING OPINION).  IN AN INTERIM REPORT, RELEASE OF WHICH WAS
AUTHORIZED BY THE APPELLATE DIVISION, MR. JUSTICE ARKWRIGHT STATED THAT
FROM MARCH OF 1957 TO JUNE OF 1958 THE INQUIRY ISSUED 4,875 "REQUEST"
SUBPOENAS, 2,150 WITNESS AND DUCES TECUM SUBPOENAS, AND EXAMINED THE
RECORDS OF APPROXIMATELY 5,000 INSURANCE COMPANIES.  DURING THE SAME
PERIOD THE INQUIRY'S STAFF EXAMINED INFORMALLY ABOUT 2,500 PERSONS, AND
FROM MAY OF 1957 TO JUNE OF 1958 SOME 726 WITNESSES WERE INTERROGATED
BEFORE THE SPECIAL TERM ITSELF. 

FN6  "ANY STATUTE OR RULE TO THE CONTRARY NOTWITHSTANDING, ALL
PAPERS, RECORDS AND DOCUMENTS UPON THE APPLICATION OR EXAMINATION OF
ANY PERSON FOR ADMISSION AS AN ATTORNEY AND COUNSELLOR AT LAW AND UPON
ANY COMPLAINT, INQUIRY, INVESTIGATION OR PROCEEDING RELATING TO THE
CONDUCT OR DISCIPLINE OF AN ATTORNEY OR ATTORNEYS, SHALL BE SEALED AND
BE DEEMED PRIVATE AND CONFIDENTIAL.  HOWEVER, UPON GOOD CAUSE BEING
SHOWN, THE JUSTICES OF THE APPELLATE DIVISION HAVING JURISDICTION ARE
EMPOWERED, IN THEIR DISCRETION, BY WRITTEN ORDER, TO PERMIT TO BE
DIVULGED ALL OR ANY PART OF SUCH PAPERS, RECORDS AND DOCUMENTS.  IN THE
DISCRETION OF THE PRESIDING OR ACTING PRESIDING JUSTICE OF SAID
APPELLATE DIVISION, SUCH ORDER MAY BE MADE EITHER WITHOUT NOTICE TO THE
PERSONS OR ATTORNEYS TO BE AFFECTED THEREBY OR UPON SUCH NOTICE TO THEM
AS HE MAY DIRECT.  IN FURTHERANCE OF THE PURPOSE OF THIS SUBDIVISION,
SAID JUSTICES ARE ALSO EMPOWERED, IN THEIR DISCRETION, FROM TIME TO
TIME TO MAKE SUCH RULES AS THEY MAY DEEM NECESSARY.  WITHOUT REGARD TO
THE FOREGOING, IN THE EVENT THAT CHARGES ARE SUSTAINED BY THE JUSTICES
OF THE APPELLATE DIVISION HAVING JURISDICTION IN ANY COMPLAINT,
INVESTIGATION OR PROCEEDING RELATING TO THE CONDUCT OR DISCIPLINE OF
ANY ATTORNEY, THE RECORDS AND DOCUMENTS IN RELATION THERETO SHALL BE
DEEMED PUBLIC RECORDS." 

FN7  A PROPOSED BILL WOULD HAVE ADDED TO THE CIVIL RIGHTS LAW A NEW
SEC. 12-A, PROVIDING AS FOLLOWS:  "RIGHT OF REPRESENTATION BY COUNSEL
OF PERSONS CALLED AS WITNESSES IN CERTAIN INQUIRIES AND
INVESTIGATIONS.  ANY PERSON CALLED AS A WITNESS BY OR BEFORE ANY  ...
JUDICIAL INVESTIGATING COMMITTEE,  ...  OR BEFORE ANY JUDGE,  ...
AUTHORIZED OR DIRECTED TO CONDUCT ANY INQUIRY OR INVESTIGATION, WHOSE
TESTIMONY MAY TEND TO INVOLVE HIMSELF OR ANY OTHER PERSON IN ANY
SUBSEQUENT CRIMINAL OR QUASI-CRIMINAL PROSECUTION OR IN ANY SUBSEQUENT
DISCIPLINARY PROCEEDING FOR PROFESSIONAL MISCONDUCT,  ...  OR THE
REVOCATION OR SUSPENSION OF ANY LICENSE TO ENGAGE IN A PROFESSION,
TRADE OR BUSINESS, SHALL HAVE THE RIGHT TO BE ACCOMPANIED BY HIS
COUNSEL WHO SHALL BE ENTITLED ON BEHALF OF HIS CLIENT TO (A) OBJECT TO
THE JURISDICTION OF THE  ...  INQUIRY  ...  AND TO ARGUE BREIFLY
THEREON; (B) TO CONFER PRIVATELY WITH HIS CLIENT TO ADVISE HIM OF HIS
LEGAL RIGHTS WHENEVER HIS CLIENT REQUESTS SUCH A CONFERENCE; (C) TO
OBJECT TO PROCEDURES DEEMED BY HIM TO VIOLATE HIS CLIENT'S LEGAL
RIGHTS; AND (D) QUESTION THE WITNESS ON HIS BEHALF, AT THE CONCLUSION
OF HIS DIRECT TESTIMONY, ON ANY MATTER RELEVANT TO THE SUBJECT OF THE
INQUIRY OR INVESTIGATION, SUBJECT TO SUCH REASONABLE LIMITATIONS AS MAY
BE IMPOSED BY THE OFFICER PRESIDING AT SUCH INQUIRY OR INVESTIGATION." 

FN8  THE APPELLATE DIVISION'S ORDER ESTABLISHING THE SPECIAL TERM
PROVIDED "THAT, FOR THE PURPOSE OF PROTECTING THE REPUTATION OF
INNOCENT PERSONS, THE SAID INQUIRY AND INVESTIGATION SHALL BE CONDUCTED
IN PRIVATE, PURSUANT TO THE PROVISIONS OF THE JUDICIARY LAW (SECTION
90, SUBDIVISION 10); THAT ALL THE FACTS, TESTIMONY AND INFORMATION
ADDUCED, AND ALL PAPERS RELATING TO THIS INQUIRY AND INVESTIGATION,
EXCEPT THIS ORDER, SHALL BE SEALED AND BE DEEMED CONFIDENTIAL; AND THAT
NONE OF SUCH FACTS, TESTIMONY AND INFORMATION AND NONE OF THE PAPERS
AND PROCEEDINGS HEREIN, EXCEPT THIS ORDER, SHALL BE MADE PUBLIC OR
OTHERWISE DIVULGED UNTIL THE FURTHER ORDER OF THIS COURT; AND  ...
THAT UPON THE CONCLUSION OF SAID INQUIRY AND INVESTIGATION THE SAID
JUSTICE SHALL MAKE AND FILE WITH THIS COURT HIS REPORT SETTING FORTH
HIS PROCEEDINGS, HIS FINDINGS AND HIS RECOMMENDATIONS." 

FN9  SEE P. 288, SUPRA; NOTE 13, INFRA. 

FN10  PAGE'S OHIO REV. CODE, 1954, SEC. 3737.13. 

FN11  IN THE INTERIM REPORT ALREADY MENTIONED, NOTE 5, SUPRA, MR.
JUSTICE ARKWRIGHT STATED: 

"WE HAVE BEEN SCRUPULOUS IN APPRISING ALL ATTORNEYS OF THE STATED
PURPOSES OF THE INQUIRY AS LAID DOWN BY THE APPELLATE DIVISION, AND
WITNESSES, WHENEVER REQUIRED, HAVE BEEN ADVISED OF THEIR CONSTITUTIONAL
RIGHTS. 

"AS MANY AS 30 PERSONS SWORN AS WITNESSES BEFORE THE ADDITIONAL
SPECIAL TERM HAVE, AS IS THEIR UNQUESTIONED RIGHT, INVOKED THEIR
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION, INCLUDING 11
ATTORNEYS AND 10 DOCTORS.  FACED WITH THIS ROADBLOCK, COUNSEL FOR THE
INQUIRY HAS BEEN FORCED TO DEVELOP AND TO PRESENT INDEPENDENT EVIDENCE
OF THE FACTS." 

FN12  "  ...  I INDICATED THAT WE DID NOT INTEND TO PUSSYFOOT WITH
THEM, WE WERE NOT TRYING TO TRAP THEM IN ANY MANNER, BUT THAT TESTIMONY
AND EVIDENCE HAD COME BEFORE US IN THE COURSE OF OUR INVESTIGATION THAT
SOMEONE IN THE EMPLOY OF THE GOTHAM CLAIMS SERVICE (APPELLANTS'
PARTNERSHIP) HAD, WITH SOME FREQUENCY, OBTAINED STATEMENTS FROM
DEFENDANTS (IN PENDING OR PROSPECTIVE NEGLIGENCE ACTIONS), HOLDING
THEMSELVES OUT TO BE FROM DEFENDANT'S INSURANCE CARRIER AND ALSO
HOLDING THEMSELVES OUT TO BE FROM OTHER AGENCIES, AND IN ONE INSTANCE
THE DISTRICT ATTORNEY'S OFFICE.  THAT OUR INVESTIGATION HAD DISCLOSED
THAT THESE STATEMENTS HAD BEEN TAMPERED WITH, AND THAT IT WAS RELATIVE
TO THIS THAT WE WISHED TO SPEAK TO THEM TO FIND OUT IF THESE STATEMENTS
WERE ACTUALLY TAKEN BY THE GOTHAM CLAIMS SERVICE, FOR WHAT ATTORNEYS
THESE STATEMENTS WERE TAKEN, AND WHETHER THE TAMPERING WAS DONE BY THEM
OR THEIR EMPLOYEES OR AT THE DIRECTION OF SOME ATTORNEY. 

"I TOLD MR. ZANGARA (APPELLANTS' COUNSEL) THAT THE INTERESTS OF THE
JUDICIAL INQUIRY WAS PRIMARILY DIRECTED AT THE ATTORNEYS THAT THEY HAD
DONE BUSINESS WITH, THAT IF THEY COOPERATED FULLY I FELT THAT THE COURT
WOULD TAKE THAT INTO CONSIDERATION IF SOMETHING UNETHICAL HAD BEEN
DONE. 

"I FURTHER STATED THAT IN MY OPINION THERE WAS PRIMA FACIE EVIDENCE
IN THE EVENT THAT THE CLIENTS DECIDED TO PLEAD THE FIFTH AMENDMENT, TO
REFER THIS MATTER TO THE DISTRICT ATTORNEY. 

"I STATED IT WAS MY OPINION, I DID NOT INDICATE THAT THAT WOULD BE
DONE, I DID NOT INDICATE THAT IT WAS EVEN BEING CONSIDERED AT THE
TIME.  I WAS MERELY GIVING MY OPINION FOR WHICH THEY HAD ASKED.  I MADE
IT QUITE CLEAR THAT THIS WAS ALL OFF THE RECORD, THAT THEY WERE ASKING
WHAT AMOUNTED TO A FAVOR, AND I WAS BEING VERY FRANK AND HONEST WITH
THEM.  AND I WAS THANKED FOR INDICATING TO THEM WHAT THE PICTURE WAS. 

     *         *         *         *     * 

"IN FACT, I REMEMBER INDICATING THAT ANY FINAL ACTION ON THE MATTER
WOULD HAVE TO BE ON THE PART OF YOUR HONOR (THE JUSTICE IN CHARGE OF
THE INQUIRY) AND THAT THE APPELLATE DIVISION WOULD FINALLY RULE AS TO
WHAT WOULD ACTUALLY BE DONE." 

FN13  THE RECORD SHOWS THAT WHEN APPELLANTS PERSISTED IN THEIR
RECALCITRANCE DESPITE THE COURT'S DIRECTIONS TO ANSWER, IT CALLED IN
COUNSEL, INFORMED HIM THAT IT CONSIDERED APPELLANTS' REFUSALS
CONTEMPTUOUS AND DIRECTED HIM AND APPELLANTS TO REAPPEAR TWO DAYS
THEREAFTER.  AT THAT TIME, THE COURT HEARD ARGUMENT BY COUNSEL WHY
APPELLANTS SHOULD NOT BE HELD IN CONTEMPT.  IT THEN AGAIN TOLD COUNSEL
THAT EACH APPELLANT WAS "HERE MERELY AS A WITNESS, NOT AS A DEFENDANT,
NOT AS A RESPONDENT.  YOU UNDERSTAND WHAT I AM TALKING ABOUT.  YOU CAN
EXPLAIN THAT TO HIM."  THE COURT NEXT EXPLAINED THE PROCEDURE IT WOULD
FOLLOW AS TO EACH APPELLANT: 

"WE ARE GOING TO ASK HIM SOME OF THE QUESTIONS THAT WERE ASKED BEFORE
AND IF HE WISHES TO CONSULT YOU, WE WILL GIVE HIM EVERY OPPORTUNITY TO
DO SO AT ANY TIME DURING THE QUESTIONING OR ANY TIME THAT I DIRECT. 

"  ...  IF YOU WILL RETIRE FROM THE COURTROOM WE WILL CALL  ...  HIM
TO THE STAND." 

APPELLANTS CONTINUED IN REFUSING TO ANSWER.  THE COURT HELD THEM IN
CONTEMPT AND RECALLED COUNSEL FOR A HEARING ON THE CONTENTION THAT
THEIR CORRIDOR CONVERSATION WITH THE STAFF ASSISTANT ESTABLISHED THEIR
STATUS AS DEFENDANTS.  IT THEN HEARD ARGUMENT BY COUNSEL ON PUNISHMENT,
AND IMPOSED THE CHALLENGED SENTENCE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

IN RE GROBAN, 352 U.S. 330, DECIDED TWO YEARS AGO, UPHELD AS
CONSTITUTIONAL THE ACTION OF A STATE FIRE MARSHAL IN COMPELLING PERSONS
SUSPECTED OF BURNING A BUILDING TO TESTIFY ABOUT THE FIRE IN SECRET AND
WITHOUT BENEFIT OF THE PRESENCE OF THEIR COUNSEL.  FOUR OF US DISSENTED
ON THE GROUND THAT SUCH SECRET INQUISITIONS VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  IN THIS CASE THE COURT UPHOLDS THE
ACTION OF A STATE JUDGE IN COMPELLING TESTIMONY FROM PERSONS SUSPECTED
OF GETTING STATEMENTS OF DEFENDANTS IN NEGLIGENCE CASES UNDER FALSE
PRETENSES AND LATER "TAMPERING" WITH THESE STATEMENTS.*  I THINK IT
VIOLATES DUE PROCESS FOR A JUDGE NO LESS THAN FOR A FIRE MARSHAL TO
COMPEL TESTIMONY TO BE GIVEN INCOMMUNICADO.  IN FACT IT WAS STAR
CHAMBER JUDGES WHO HELPED TO MAKE CLOSED-DOOR COURT PROCEEDINGS SO
OBNOXIOUS IN THIS COUNTRY THAT THE BILL OF RIGHTS GUARANTEES PUBLIC
TRIALS AND THE ASSISTANCE OF COUNSEL.  AND SECRETLY COMPELLED TESTIMONY
DOES NOT LOSE ITS HIGHLY DANGEROUS POTENTIALITIES MERELY BECAUSE IT
REPRESENTS ONLY A "PRELIMINARY INQUISITION  ... WHEREBY THE COURT IS
GIVEN INFORMATION THAT MAY MOVE IT TO OTHER ACTS THEREAFTER."  NOR DOES
THIS RECORD JUSTIFY A HOLDING THAT THIS INQUISITION ADOPTED THE MANTLE
OF SECRECY AND BARRED COUNSEL FROM THE ROOM OUT OF TENDER SOLICITUDE
FOR THE REPUTATION OF THE DEFENDANTS IN THIS CONTEMPT CASE.  DOUBTLESS
THE DEFENDANTS' LAWYER AND THE DEFENDANTS THEMSELVES ARE AT LEAST AS
CAPABLE AND PERHAPS AS MUCH INTERESTED IN SAVING THEIR REPUTATIONS AS
THE JUDGE WHO IS SENDING THEM TO JAIL. 

*DESPITE THE JUDGE'S REPEATED STATEMENTS THAT THESE PERSONS WERE
"WITNESSES" NOT DEFENDANTS, THE STATEMENT OF A MEMBER OF THE JUDGE'S
INQUIRY STAFF, SET OUT IN NOTE 12 OF THE COURT'S OPINION, MAKES IT
CLEAR THAT THEY WERE SUSPECTED AND UNDER INVESTIGATION FOR CRIMINAL
CONDUCT. 

THE NAKED, STARK ISSUE HERE IS WHETHER A JUDGE, WHO MUST ACTUALLY TRY
CASES IN PUBLIC - OR ANY OTHER GOVERNMENT OFFICIAL FOR THAT MATTER -
CAN CONSISTENTLY WITH DUE PROCESS COMPEL PERSONS TO TESTIFY AND PERHAPS
TO LAY THE GROUNDWORK FOR THEIR LATER CONVICTION OF CRIME, IN SECRET
CHAMBERS, WHERE COUNSEL FOR THE STATE CAN BE PRESENT BUT WHERE COUNSEL
FOR THE SUSPECT CANNOT.  IN UPHOLDING SUCH SECRET INQUISITIONS THE
COURT ONCE AGAIN RETREATS FROM WHAT I CONCEIVE TO BE ITS HIGHEST DUTY,
THAT OF MAINTAINING UNIMPAIRED THE RIGHTS AND LIBERTIES GUARANTEED BY
THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS.  CF. BARTKUS V.
ILLINOIS, 359 U.S. 121; FRANK V. MARYLAND, 359 U.S. 360; BARENBLATT V.
UNITED STATES, ANTE, P. 109; UPHAUS V. WYMAN, ANTE, P. 72.  HERE AS IN
GROBAN MY ANSWER WOULD BE THAT NO PUBLIC OFFICIAL CAN CONSTITUTIONALLY
EXERCISE SUCH A DANGEROUS POWER OVER ANY INDIVIDUAL.  I WOULD THEREFORE
REVERSE THIS CONVICTION. 
..END :

















NATIONAL LABOR RELATIONS BOARD V. FANT MILLING CO. 360 U.S. 301 


NO. 482.  ARGUED MAY 20, 1959.  - DECIDED JUNE 15, 1959.  - 258 F.2D
851, REVERSED. 


A UNION WHICH HAD BEEN CERTIFIED BY THE NATIONAL LABOR RELATIONS BOARD
AS THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE FOR A UNIT OF
RESPONDENT'S EMPLOYEES FILED A CHARGE WITH THE BOARD ALLEGING THAT
RESPONDENT HAD VIOLATED SEC. 8(A)(5) OF THE ACT BY REFUSING TO BARGAIN
COLLECTIVELY WITH THE UNION; BUT THE REGIONAL DIRECTOR DECLINED TO
ISSUE A COMPLAINT ON THE GROUND THAT THE EVIDENCE WAS INSUFFICIENT. 
LATER RESPONDENT UNILATERALLY GRANTED A GENERAL WAGE INCREASE AND
NOTIFIED THE UNION THAT IT WAS WITHDRAWING ITS RECOGNITION AND WOULD
NOT BARGAIN FURTHER WITH IT. IN THE LIGHT OF THESE ADDITIONAL FACTS AND
ALTHOUGH NO AMENDED CHARGE WAS FILED, THE BOARD ISSUED A COMPLAINT,
HELD HEARINGS, FOUND THAT RESPONDENT HAD REFUSED TO BARGAIN
COLLECTIVELY, AND ISSUED AN APPROPRIATE ORDER.  HELD:  IN FINDING A
REFUSAL TO BARGAIN COLLECTIVELY, THE BOARD WAS NOT PRECLUDED FROM
CONSIDERING CONDUCT ON THE PART OF THE EMPLOYER WHICH WAS RELATED TO
THAT ALLEGED IN THE CHARGE AND GREW OUT OF IT WHILE THE PROCEEDING WAS
PENDING BEFORE THE BOARD.  NATIONAL LICORICE CO. V. LABOR BOARD, 309
U.S. 350.  PP. 301-309. 

NATIONAL LABOR RELATIONS BOARD V. FANT MILLING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS ACT MAKES IT AN UNFAIR LABOR PRACTICE
FOR AN EMPLOYER TO REFUSE TO BARGAIN IN GOOD FAITH WITH THE
REPRESENTATIVE OF HIS EMPLOYEES.  (FN1)  THE QUESTION PRESENTED BY THIS
CASE IS THE EXTENT TO WHICH THE LABOR BOARD MAY, IN FORMULATING A
COMPLAINT AND IN FINDING A VIOLATION OF THIS SECTION OF THE ACT, TAKE
COGNIZANCE OF EVENTS OCCURRING SUBSEQUENT TO THE FILING OF THE CHARGE
UPON WHICH THE COMPLAINT IS BASED. 

PURSUANT TO AN ELECTION A UNION WAS CERTIFIED IN JUNE 1963 AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE FOR AN APPROPRIATE UNIT OF THE
RESPONDENT'S EMPLOYEES AT ITS PLANT IN SHERMAN, TEXAS.   DURING THE
ENSUING MONTHS AGENTS OF THE UNION AND OF THE RESPONDENT MET ON SEVERAL
OCCASIONS FOR THE SUPPOSED PURPOSE OF WORKING OUT A COLLECTIVE
BARGAINING CONTRACT.  BY MAY 20, 1954, SEVERAL SUCH MEETINGS HAD TAKEN
PLACE, BUT NO AGREEMENT HAD BEEN REACHED. 

ON THAT DATE THE UNION FILED A CHARGE WITH THE REGIONAL DIRECTOR OF
THE BOARD, ALLEGING THAT THE RESPONDENT HAD VIOLATED SEC. 8(A)(5) OF
THE ACT BY REFUSING TO BARGAIN COLLECTIVELY WITH THE UNION.  TWO MONTHS
LATER THE REGIONAL DIRECTOR ADVISED THE UNION THAT HE WAS REFUSING TO
ISSUE A COMPLAINT ON THE GROUND THAT "IT DOES NOT APPEAR THAT THERE IS
SUFFICIENT EVIDENCE OF VIOLATIONS TO WARRANT FURTHER PROCEEDINGS AT
THIS TIME."  THE UNION REQUESTED THE GENERAL COUNSEL OF THE BOARD TO
REVIEW THIS REFUSAL.  (FN2) 

IN THE MEANTIME AND UNTIL OCTOBER 1954 MORE THAN A DOZEN FURTHER
MEETINGS WERE HELD BETWEEN REPRESENTATIVES OF THE UNION AND OF THE
RESPONDENT.  NO REAL PROGRESS TOWARDS REACHING AN AGREEMENT WAS MADE. 
IN OCTOBER, WHILE NEGOTIATIONS WERE STILL GOING ON, THE RESPONDENT
UNILATERALLY PUT INTO EFFECT A GENERAL WAGE INCREASE WITHOUT PRIOR
NOTICE TO THE UNION.  A FEW WEEKS LATER THE RESPONDENT ADVISED THE
UNION THAT IT WAS WITHDRAWING RECOGNITION AND THAT IT WOULD REFUSE ANY
FURTHER BARGAINING CONFERENCES. 

THEREAFTER, IN JANUARY 1955, THE REGIONAL DIRECTOR INFORMED THE UNION
THAT "UPON RECONSIDERATION OF THE FACTS AND CIRCUMSTANCES, AND
ADDITIONAL EVIDENCE FURNISHED US IN CONNECTION WITH OUR INVESTIGATION
IN THE ABOVE MATTER, WE HAVE DECIDED TO AND ARE HEREBY WITHDRAWING OUR
REFUSAL TO ISSUE COMPLAINT WITH RESPECT TO THE 8(A)(5) ALLEGATION OF
REFUSAL TO BARGAIN  ...  .  WE SHALL PROCEED WITH OUR INVESTIGATION IN
DUE COURSE."  LATER THE BOARD'S GENERAL COUNSEL ADVISED THE UNION AS
FOLLOWS:  "WITH RESPECT TO THE 8(A)(5) ALLEGATION OF REFUSAL TO
BARGAIN; THE REGIONAL DIRECTOR ADVISED THE PARTIES BY LETTER DATED
JANUARY 24, 1955, THAT HE WAS WITHDRAWING HIS DISMISSAL OF THE 8(A)(5)
PORTION OF THE CHARGE AND WAS CONTINUING WITH THE INVESTIGATION
THEREOF.  ALL FURTHER INQUIRIES WITH RESPECT TO THE 8(A)(5) ALLEGATION
SHOULD BE ADDRESSED TO THE REGIONAL DIRECTOR."  FIVE DAYS AFTERWARDS
THE REGIONAL DIRECTOR ISSUED A COMPLAINT, ALLEGING THAT "ON OR ABOUT
NOVEMBER 21, 1953, AND AT ALL TIMES THEREAFTER, RESPONDENT DID REFUSE
AND CONTINUES TO REFUSE TO BARGAIN COLLECTIVELY.  ...  "; THAT "ON OR
ABOUT OCTOBER 7, 1954, RESPONDENT, WITHOUT NOTICE TO THE UNION, PUT
INTO EFFECT A GENERAL WAGE INCREASE.  ...  "; AND THAT BY THOSE ACTS
"RESPONDENT DID ENGAGE IN AND IS HEREBY ENGAGING IN AN UNFAIR LABOR
PRACTICE WITHIN THE MANING OF SECTION 8(A), SUBSECTION (5) OF THE
ACT."  (FN3) 

THE BOARD, AGREEING WITH ITS TRIAL EXAMINER, HELD THAT THE RESPONDENT
HAD REFUSED TO BARGAIN COLLECTIVELY WITH THE UNION WITHIN THE MEANING
OF THE ACT, FINDING THAT "AFTER NOVEMBER 21, 1953, ...  THE RESPONDENT
WAS MERELY GOING THROUGH THE MOTIONS OF COLLECTIVE BARGAINING WITHOUT A
GENUINE INTENTION OF TRYING TO NEGOTIATE AN AGREEMENT WITH THE UNION AS
REQUIRED BY THE PROVISIONS OF THE ACT."  AN APPROPRIATE ORDER WAS
ACCORDINGLY ISSUED.  117 N.L.R.B. 1277.  (FN4)  THE BOARD EXPRESSLY
HELD THAT THE RESPONDENT'S UNILATERAL GRANT OF A GENERAL WAGE INCREASE
IN OCTOBER OF 1954, ALTHOUGH OCCURRING SUBSEQUENT TO THE ORIGINAL
CHARGE AND NOT THE SUBJECT OF THE COMPLAINT.  MOREOVER, ITS FINDING OF
A REFUSAL TO BARGAIN WAS LARGELY INFLUENCED BY THIS SPECIFIC CONDUCT ON
THE PART OF THE RESPONDENT.  (FN5)  ONE MEMBER OF THE BOARD DISSENTED
UPON THE GROUND THAT THE OCTOBER WAGE INCREASE COULD NOT LAWFULLY BE
MADE THE BASIS OF A FINDING THAT THE RESPONDENT HAD VIOLATED THE ACT. 

THE COURT OF APPEALS DENIED THE BOARD'S PETITION FOR ENFORCEMENT. 
258 F.2D 851.  SUBSTANTIALLY AGREEING WITH THE REASONING OF THE
DISSENTING BOARD MEMBER, THE COURT HELD THAT SEC. 10(B) OF THE ACT
REQUIRES "THAT A CHARGE MUST SET UP FACTS SHOWING AN UNFAIR LABOR
PRACTICE  ...  , AND THE FACTS MUST BE PREDICATED ON ACTIONS WHICH HAVE
ALREADY BEEN TAKEN."  (FN6) IT FURTHER HELD THAT "THE COMPLAINT MUST
FAITHFULLY REFLECT THE FACTS CONSTITUTING THE UNFAIR LABOR PRACTICES AS
PRESENTED IN THE CHARGE."  (FN7) 

TO ATTRIBUTE SO TIGHTLY RESTRICTED A FUNCTION TO A BOARD COMPLAINT
IS, AS THIS COURT POINTED OUT IN NATIONAL LICORICE CO. V. LABOR BOARD,
309 U.S. 350, NOT CONSONANT WITH THE BASIC SCHEME OF THE ACT.  ONE OF
THE ISSUES IN THAT CASE WAS SUBSTANTIALLY IDENTICAL TO THE ISSUE
PRESENTED HERE - "WHETHER THE JURISIDICTION OF THE BOARD IS LIMITED TO
SUCH UNFAIR LABOR PRACTICES AS ARE SET UP IN THE CHARGE PRESENTED TO
THE BOARD SO AS TO PRECLUDE ITS DETERMINATION THAT (CERTAIN ACTIONS ON
THE PART OF THE EMPLOYER) INVOLVED UNFAIR LABOR PRACTICES, SINCE BOTH
OCCURRED AFTER THE CHARGE WAS LODGED WITH THE BOARD  ...  ."  309 U.S.,
AT 357.  THE COURT'S RESOLUTION OF THE ISSUE WAS UNAMBIGUOUS: 

"IT IS UNNECESSARY FOR US TO CONSIDER NOW HOW FAR THE STATUTORY
REQUIREMENT OF A CHARGE AS A CONDITION PRECEDENT TO A COMPLAINT
EXCLUDES FROM THE SUBSEQUENT PROCEEDINGS MATTERS EXISTING WHEN THE
CHARGE WAS FILED, BUT INCLUDED IN IT.  WHATEVER RESTRICTIONS THE
REQUIREMENT OF A CHARGE MAY BE THOUGHT TO PLACE UPON SUBSEQUENT
PROCEEDINGS BY THE BOARD, WE CAN FIND NO WARRANT IN THE LANGUAGE OR
PURPOSES OF THE ACT FOR SAYING THAT IT PRECLUDES THE BOARD FROM DEALING
ADEQUATELY WITH UNFAIR LABOR PRACTICES WHICH ARE RELATED TO THOSE
ALLEGED IN THE CHARGE AND WHICH GROW OUT OF THEM WHILE THE PROCEEDING
IS PENDING BEFORE THE BOARD.  THE VIOLATIONS ALLEGED IN THE COMPLAINT
AND FOUND BY THE BOARD WERE BUT A PROLONGATION OF THE ATTEMPT TO FORM
THE COMPANY UNION AND TO SECURE THE CONTRACTS ALLEGED IN THE CHARGE. 
ALL ARE OF THE SAME CLASS OF VIOLATIONS AS THOSE SET UP IN THE CHARGE
AND WERE CONTINUATIONS OF THEM IN PURSUANCE OF THE SAME OBJECTS.  THE
BOARD'S JURISDICTION HAVING BEEN INVOKED TO DEAL WITH THE FIRST STEPS,
IT HAD AUTHORITY TO DEAL WITH THOSE WHICH FOLLOWED AS A CONSEQUENCE OF
THOSE ALREADY TAKEN.  WE THINK THE COURT BELOW CORRECTLY HELD THAT 'THE
BOARD WAS WITHIN ITS POWER IN TREATING THE WHOLE SEQUENCE AS ONE.'" 
309 U.S. 350, AT 369. 

IN THE PRESENT CASE, AS IN NATIONAL LICORICE, THE UNILATERAL WAGE
INCREASE WAS "OF THE SAME CLASS OF VIOLATIONS AS THOSE SET UP IN THE
CHARGE  ...  ."  THE WAGE INCREASE WAS "RELATED TO" THE CONDUCT ALLEGED
IN THE CHARGE AND DEVELOPED AS ONE ASPECT OF THAT CONDUCT "WHILE THE
PROCEEDING WAS PENDING BEFORE THE BOARD." 

A CHARGE FILED WITH THE LABOR BOARD IS NOT TO BE MEASURED BY THE
STANDARDS APPLICABLE TO A PLEADING IN A PRIVATE LAWSUIT.  ITS PURPOSE
IS MERELY TO SET IN MOTION THE MACHINERY OF AN INQUIRY.  LABOR BOARD V.
I.&M. ELECTRIC CO., 318 U.S. 9, 18.  THE RESPONSIBILITY OF MAKING THAT
INQUIRY, AND OF FRAMING THE ISSUES IN THE CASE IS ONE THAT CONGRESS HAS
IMPOSED UPON THE BOARD, NOT THE CHARGING PARTY.  THE CONFINE THE BOARD
IN ITS INQUIRY AND IN FRAMING THE COMPLAINT TO THE SPECIFIC MATTERS
ALLEGED IN THE CHARGE WOULD REDUCE THE STATUTORY MACHINERY TO A VEHICLE
FOR THE VINDICATION OF PRIVATE RIGHTS.  THIS WOULD BE ALIEN TO THE
BASIC PURPOSE OF THE ACT.  THE BOARD WAS CREATED NOT TO ADJUDICATE
PRIVATE CONTROVERSIES BUT TO ADVANCE THE PUBLIC INTEREST IN ELIMINATING
OBSTRUCTIONS TO INTERSTATE COMMERCE, AS THIS COURT HAS RECOGNIZED FROM
THE BEGINNING.  LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1. 

ONCE ITS JURISDICTION IS INVOKED THE BOARD MUST BE LEFT FREE TO MAKE
FULL INQUIRY UNDER ITS BROAD INVESTIGATORY POWER (FN8) INORDER PROPERLY
TO DISCHARGE THE DUTY OF PROTECTING PUBLIC RIGHTS WHICH CONGRESS HAS
IMPOSED UPON IT.  THERE CAN BE NO JUSTIFICATION FOR CONFINING SUCH AN
INQUIRY TO THE PRECISE PARTICULARIZATIONS OF A CHARGE.  FOR THESE
REASONS WE ADHERE TO THE VIEWS EXPRESSED IN NATIONAL LICORICE CO. V.
LABOR BOARD.  (FN9) 

WHAT HAS BEEN SAID IS NOT TO IMPLY THAT THE BOARD IS, IN THE WORDS OF
THE COURT OF APPEALS, TO BE LEFT "CARTE BLANCHE TO EXPAND THE CHARGE AS
THEY MIGHT PLEASE, OR TO IGNORE IT ALTOGETHER."  258 F.2D, AT 856. 
HERE WE HOLD ONLY THAT THE BOARD IS NOT PRECLUDED FROM "DEALING
ADEQUATELY WITH UNFAIR LABOR PRACTICES WHICH ARE RELATED TO THOSE
ALLEGED IN THE CHARGE AND WHICH GROWN OUT OF THEM WHILE THE PROCEEDING
IS PENDING BEFORE THE BOARD."  NATIONAL LICORICE CO. V. LABOR BOARD,
309 U.S. 350, AT 369.  IT FOLLOWS IN THE PRESENT CASE THAT THE OCTOBER
WAGE INCREASE WAS A PROPER SUBJECT OF THE BOARD'S COMPLAINT AND WAS
PROPERLY CONSIDERED BY THE BOARD IN REACHING ITS DECISION.  (FN10)
REVERSED. 

FN1  "SEC.  8(A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER -  ...  (5) TO REFUSE TO BARGAIN COLLECTIVELY WITH THE
REPRESENTATIVES OF HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION
9(A)  ...  .  (D) FOR THE PURPOSES OF THIS SECTION, TO BARGAIN
COLLECTIVELY IS THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE
EMPLOYER AND THE REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER
TERMS AND CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT,
OR ANY QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN
CONTRACT INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY EITHER
PARTY, BUT SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A
PROPOSAL OR REQUIRE THE MAKING OF A CONCESSION  ...  ."  29 U.S.C. SEC.
158(A). 

FN2  THE RESPONDENT CONTINUES HERE TO PRESS THE CLAIM THAT THIS
REQUEST WAS NOT TIMELY UNDER SEC. 102.19 OF THE BOARD'S RULES AND
REGULATIONS, ALTHOUGH THE UNCONTROVERTED EVIDENCE SHOWS THAT THE
REQUEST WAS FILED WITHIN AN EXTENSION OF TIME THAT HAD BEEN GRANTED. 

FN3  THE CHRONOLOGY OF THESE EVENTS REFUTES THE RESPONDENT'S CLAIM
THAT THE REGIONAL DIRECTOR ACTED WHILE THE MATTER WAS UNDER REVIEW BY
THE GENERAL COUNSEL.  THE GENERAL COUNSEL HAD EXERCISED HIS REVIEWING
AUTHORITY PRIOR TO THE TIME THE COMPLAINT ISSUED. 

FN4  THE BOARD ORDERED THE RESPONDENT TO CEASE AND DESIST FROM
REFUSING TO BARGAIN; TO REFRAIN FROM INTERFERING WITH THE UNION'S
EFFORTS TO BARGAIN; UPON REQUEST, TO BARGAIN COLLECTIVELY WITH THE
UNION; AND TO POST APPROPRIATE NOTICES. 

FN5  THE LANGUAGE OF THE BOARD'S DECISION MAKES CLEAR HOW STRONGLY IT
RELIED UPON THE OCTOBER 1954 WAGE INCREASE IN REACHING ITS CONCLUSION,
E.G.:  "WE HAVE NO DIFFICULTY IN DETERMINING THE RESPONDENT'S BAD FAITH
THROUGHOUT THESE PROTRACTED NEGOTIATIONS, PARTICULARLY IN VIEW OF THE
RESPONDENT'S UNILATERAL EFFECTUATION OF A GENERAL WAGE INCREASE EARLY
IN OCTOBER 1954, WHILE THE NEGOTIATIONS WERE STILL IN PROGRESS BUT
WITHOUT CONSULTATION WITH OR EVEN NOTICE TO THE UNION  ... 

     *         *         *         *         * 

"WE FIND, RATHER, THAT THE GIVING OF THIS GENERAL INCREASE WHILE
NEGOTIATIONS WERE STILL CONTINUING, AND IN COMPLETE DISREGARD OF THE
UNION'S REPRESENTATIVE STATUS, PROVIDES THE FINAL INSIGHT INTO THE
RESPONDENT'S CONDUCT OF NEGOTIATIONS WITH THE UNION." 

FN6  SECTION 19(B) OF THE ACT PROVIDES:  "WHENEVER IT IS CHARGED THAT
ANY PERSON HAS ENGAGED IN OR IS ENGAGING IN ANY SUCH UNFAIR LABOR
PRACTICE, THE BOARD, OR ANY AGENT OR AGENCY DESIGNATED BY THE BOARD FOR
SUCH PURPOSES, 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 OR A MEMBER THEREOF, OR
BEFORE A DESIGNATED AGENT OR AGENCY, AT A PLACE THEREIN FIXED, NOT LESS
THAN FIVE DAYS AFTER THE SERVICE OF SAID COMPLAINT:  PROVIDED, THAT NO
COMPLAINT SHALL ISSUE BASED UPON ANY UNFAIR LABOR PRACTICE OCCURRING
MORE THAN SIX MONTHS PRIOR TO THE FILING OF THE CHARGE WITH THE BOARD
AND THE SERVICE OF A COPY THEREOF UPON THE PERSON AGAINST WHOM SUCH
CHARGE IS MADE, UNLESS THE PERSON AGGRIEVED THEREBY WAS PREVENTED FROM
FILING SUCH CHARGE BY REASON OF SERVICE IN THE ARMED FORCES, IN WHICH
EVENT THE SIX-MONTH PERIOD SHALL BE COMPUTED FROM THE DAY OF HIS
DISCHARGE.  ANY SUCH COMPLAINT MAY BE AMENDED BY THE MEMBER AGENT, OR
AGENCY CONDUCTING THE HEARING OR THE BOARD IN ITS DISCRETION AT ANY
TIME PRIOR TO THE ISSUANCE OF AN ORDER BASED THEREON."  29 U.S.C. SEC.
160(B). 

FN7  JUDGE CAMERON WROTE THE PREVAILING OPINION FOR THE COURT.  CHIEF
JUDGE HUTCHESON WROTE A SEPARATE CONCURRING OPINION IN WHICH HE AGREED
WITH JUDGE CAMERON'S VIEW:  "IN SHORT, WHAT HAS HAPPENED HERE IS THAT
BY THE DEVICE OF INJECTING INTO THE CASE ENTIRELY NEW MATTER COMPLETELY
UNRELATED TO THE CHARGE, THE REGIONAL DIRECTOR, IN VIOLATION OF THE
PROVISIONS OF THE ACT, THAT NO COMPLAINT CAN BE FILED EXCEPT ONE BASED
UPON A CHARGE, HAS FILED A COMPLAINT, AND THE BOARD HAS HEARD AND
CONDEMNED THE RESPONDENT IN RESPECT OF MATTERS WHICH, BECAUSE OF THE
LACK OF CHARGE, WERE NOT BEFORE IT."  JUDGE RIVES DISSENTED, EXPRESSING
THE VIEW THAT "THE  ...  CONSTRUCTION  ...  BY THE MAJORITY SEEMS TO ME
EXCESSIVELY TECHNICAL AND RESTRICTIVE, AND, IF SUSTAINED, I BELIEVE
THAT IT WILL SERIOUSLY CRIPPLE THE BOARD IN ANY EFFECTIVE ENFORCEMENT
OF THE ACT."    FN8  SECTION 11 OF THE ACT PROVIDES:  "INVESTIGATORY
POWERS OF BOARD.  FOR THE PURPOSE OF ALL HEARINGS AND INVESTIGATIONS,
WHICH, IN THE OPINION OF THE BOARD, ARE NECESSARY AND PROPER FOR THE
EXERCISE OF THE POWERS VESTED IN IT BY SECTION 9 AND SECTION 10-(1)
DOCUMENTARY EVIDENCE; SUMMONING WITNESSES AND TAKING TESTIMONY. 

"THE BOARD, OR ITS DULY AUTHORIZED AGENTS OR AGENCIES, SHALL AT ALL
REASONABLE TIMES HAVE ACCESS TO, FOR THE PURPOSE OF EXAMINATION, AND
THE RIGHT TO COPY ANY EVIDENCE OF ANY PERSON BEING INVESTIGATED OR
PROCEEDED AGAINST THAT RELATES TO ANY MATTER UNDER INVESTIGATION OR IN
QUESTION.  THE BOARD, OR ANY MEMBER THEREOF, SHALL UPON APPLICATION OF
ANY PARTY TO SUCH PROCEEDINGS, FORTHWITH ISSUE TO SUCH PARTY SUBPOENAS
REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES OR THE PRODUCTION
OF ANY EVIDENCE IN SUCH PROCEEDING OR INVESTIGATION REQUESTED IN SUCH
APPLICATION.  WITHIN FIVE DAYS AFTER THE SERVICE OF A SUBPENA ON ANY
PERSON REQUIRING THE PRODUCTION OF ANY EVIDENCE IN HIS POSSESSION OR
UNDER HIS CONTROL, SUCH PERSON MAY PETITION THE BOARD TO REVOKE, AND
THE BOARD SHALL REVOKE, SUCH SUBPENA IF IN ITS OPINION THE EVIDENCE
WHOSE PRODUCTION IS REQUIRED DOES NOT RELATE TO ANY MATTER UNDER
INVESTIGATION, OR ANY MATTER IN QUESTION IN SUCH PROCEEDINGS, OR IF IN
ITS OPINION SUCH SUBPENA DOES NOT DESCRIBE WITH SUFFICIENT
PARTICULARITY THE EVIDENCE WHOSE PRODUCTION IS REQUIRED.  ANY MEMBER OF
THE BOARD, OR ANY AGENY OR AGENCY DESIGNATED BY THE BOARD FOR SUCH
PURPOSES, MAY ADMINISTER OATHS AND AFFIRMATIONS, EXAMINE WITNESSES, AND
RECEIVE EVIDENCE.  SUCH ATTENDANCE OF WITNESSES AND THE PRODUCTION OF
SUCH EVIDENCE MAY BE REQUIRED FROM ANY PLACE IN THE UNITED STATES OR
ANY TERRITORY OR POSSESSION THEREOF, AT ANY DESIGNATED PLACE OF
HEARING."  29 U.S.C. SEC. 161. 

FN9  THE 1947 AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT MADE NO
CHANGE WITH RESPECT TO THE RESPECTIVE FUNCTIONS OF A CHARGE AND A
COMPLAINT.  THE ONLY CHANGE IN SEC. 10(B) WAS THE ADDITION OF THE
PROVISIONS THAT "NO COMPLAINT SHALL ISSUE BASED UPON ANY UNFAIR LABOR
PRACTICE OCCURRING MORE THAN SIX MONTHS PRIOR TO THE FILING OF THE
CHARGE, ETC."  SEE NOTE 6, SUPRA.  THIS LIMITATION EXTINGUISHES
LIABILITY FOR UNFAIR LABOR PRACTICES COMMITTED MORE THAN SIX MONTHS
PRIOR TO THE FILING OF THE CHARGE.  IT DOES NOT RELATE TO CONDUCT
SUBSEQUENT TO THE FILING OF THE CHARGE. 

FN10  THE BOARD URGES THAT WE INSTRUCT THE COURT OF APPEALS TO
ENFORCE THE BOARD'S ORDER.  WE DECLINE TO DO SO.  CF. LABOR BOARD V.
PITTSBURGH S.S. CO., 340 U.S. 498.  HOWEVER, WE THINK IT APPROPRIATE TO
STATE THAT IF THE FACTUAL SUMMARY CONTAINED IN JUDGE RIVES' DISSENTING
OPINION FINDS SUPPORT IN THE RECORD AS A WHOLE, THE BOARD'S ORDER
SHOULD BE ENFORCED "EVEN THOUGH THE COURT WOULD JUSTIFIABLY HAVE MADE A
DIFFERENT CHOICE HAD THE MATTER BEEN BEFORE IT DE NOVO."  UNIVERSAL
CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 488. 
..END :












MARSHALL V. UNITED STATES 360 U.S. 310 


NO. 383.  ARGUED MARCH 25-26, 1959.  - DECIDED JUNE 15, 1959.  - 258
F.2D 94, REVERSED. 


AT A JURY TRIAL IN A FEDERAL DISTRICT COURT IN WHICH PETITIONER WAS
CONVICTED OF UNLAWFULLY DISPENSING CERTAIN DRUGS WITHOUT A PRESCRIPTION
FROM A LICENSED PHYSICIAN, IN VIOLATION OF 21 U.S.C. SEC. 331(K), THE
JUDGE REFUSED TO PERMIT THE GOVERNMENT TO INTRODUCE EVIDENCE THAT
PETITIONER HAD PREVIOUSLY PRACTICED MEDICINE WITHOUT A LICENSE; BUT
SOME OF THE JURORS SAW AND READ NEWSPAPER ARTICLES ALLEGING THAT HE HAD
A RECORD OF TWO PREVIOUS FELONY CONVICTIONS AND RECITING OTHER
DEFAMATORY MATTERS ABOUT HIM.  UPON BEING QUESTIONED, EACH OF THESE
JURORS ASSURED THE JUDGE THAT HE WOULD NOT BE INFLUENCED BY THE NEWS
ARTICLES AND THAT HE COULD DECIDE THE CASE ONLY ON THE EVIDENCE OF
RECORD.  HELD:  THE HARM TO PETITIONER THAT RESULTED WHEN PREJUDICIAL
INFORMATION DENIED ADMISSION INTO EVIDENCE WAS BROUGHT BEFORE JURORS
THROUGH NEWSPAPERS REQUIRES THAT A NEW TRIAL BE GRANTED.  PP. 310-313. 

MARSHALL V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PER CURIAM. 

PETITIONER WAS CONVICTED OF UNLAWFULLY DISPENSING A NUMBER OF DEXTRO
AMPHETAMINE SULFATE TABLETS, A DRUG WITHIN THE SCOPE OF 21 U.S.C. SEC.
353(B)(1)(B), WITHOUT A PRESCRIPTION FROM A LICENSED PHYSICIAN, WHICH
RESULTED IN MISBRANDING AND VIOLATION OF 21 U.S.C. SEC.  331(K).  THE
COURT OF APPEALS AFFIRMED, ONE JUDGE DISSENTING, 258 F.2D 94.  THE CASE
IS HERE ON A PETITION FOR CERTIORARI, 28 U.S.C. SEC. 1254(1), WHICH WE
GRANTED BECAUSE OF DOUBTS WHETHER EXPOSURE OF SOME OF THE JURORS TO
NEWSPAPER ARTICLES ABOUT PETITIONER WAS SO PREJUDICIAL IN THE SETTING
OF THE CASE AS TO WARRANT THE EXERCISE OF OUR SUPERVISORY POWER TO
ORDER A NEW TRIAL.  358 U.S. 892. 

PETITIONER NEVER TOOK THE STAND; NOR DID HE OFFER ANY EVIDENCE.  A
GOVERNMENT AGENT TESTIFIED THAT HE WAS INTRODUCED TO PETITIONER AS A
SALESMAN WHO HAD DIFFICULTY STAYING AWAKE ON LONG AUTOMOBILE TRIPS AND
THAT ON TWO OCCASIONS HE OBTAINED THESE TABLETS FROM PETITIONER. 
PETITIONER ASKED THE TRIAL JUDGE TO RULE THERE WAS ENTRAPMENT AS A
MATTER OF LAW.  THE JUDGE REFUSED SO TO HOLD AND SUBMITTED THE ISSUE OF
ENTRAPMENT WITH APPROPRIATE INSTRUCTIONS TO THE JURY.  CF. MASCIALE V.
UNITED STATES, 356 U.S. 386.  THE GOVERNMENT ASKED TO BE ALLOWED TO
PROVE THAT PETITIONER HAD PREVIOUSLY PRACTICED MEDICINE WITHOUT A
LICENSE, AS TENDING TO REFUTE THE DEFENSE OF ENTRAPMENT.  THE TRIAL
JUDGE REFUSED THIS OFFER SAYING, "IT WOULD BE JUST LIKE OFFERING
EVIDENCE THAT HE PICKED POCKETS OR WAS A PETTY THIEF OR SOMETHING OF
THAT SORT WHICH WOULD HAVE NO BEARING ON THE ISSUE AND WOULD TEND TO
RAISE A COLLATERAL ISSUE AND I THINK WOULD BE PREJUDICIAL TO THE
DEFENDANT." 

YET DURING THE TRIAL TWO NEWSPAPERS CONTAINING SUCH INFORMATION GOT
BEFORE A SUBSTANTIAL NUMBER OF JURORS.  ONE NEWS ACCOUNT SAID: 

"MARSHALL HAS A RECORD OF TWO PREVIOUS FELONY CONVICTIONS. 

"IN 1953, WHILE SERVING A FORGERY SENTENCE IN THE STATE PENITENTIARY
AT MCALESTER, OKLA., MARSHALL TESTIFIED BEFORE A STATE LEGISLATIVE
COMMITTEE STUDYING NEW DRUG LAWS FOR OKLAHOMA. 

"AT THAT TIME, HE TOLD THE COMMITTEE THAT ALTHOUGH HE HAD ONLY A HIGH
SCHOOL EDUCATION, HE PRACTICED MEDICINE WITH A $25 DIPLOMA HE RECEIVED
THROUGH THE MAILS.  HE TOLD IN DETAIL OF THE EASE IN WHICH HE WROTE AND
PASSED PRESCRIPTIONS FOR DANGEROUS DRUGS." 

THE OTHER NEWS ACCOUNT SAID: 

"THE DEFENDANT WAS HOWARD R. (TOBEY) MARSHALL, ONCE IDENTIFIED BEFORE
A COMMITTEE OF THE OKLAHOMA LEGISLATURE AS A MAN WHO ACTED AS A
PHYSICIAN AND PRESCRIBED RESTRICTED DRUGS FOR HANK WILLIAMS BEFORE THE
COUNTRY SINGER'S DEATH IN DECEMBER, 1953. 

     *         *      *         *         * 

"MARSHALL WAS ARRESTED WITH HIS WIFE, EDITH EVERY MARSHALL, 56, IN
JUNE, 1956.  SHE WAS CONVICTED ON THE DRUG CHARGES IN FEDERAL DISTRICT
COURT HERE IN NOVEMBER AND WAS SENTENCED TO 60 DAYS IN JAIL. 

"RECORDS SHOW THAT MARSHALL ONCE SERVICE A TERM IN THE OKLAHOMA
PENITENTIARY FOR FORGERY.  THERE IS NO EVIDENCE HE IS A DOCTOR, COURT
ATTACHES SAID." 

THE TRIAL JUDGE ON LEARNING THAT THESE NEWS ACCOUNTS HAD REACHED THE
JURORS SUMMONED THEM INTO HIS CHAMBER ONE BY ONE AND INQUIRED IF THEY
HAD SEEN THE ARTICLES.  THREE HAD READ THE FIRST OF THE TWO WE HAVE
LISTED ABOVE AND ONE HAD READ BOTH.  THREE OTHERS HAD SCANNED THE FIRST
ARTICLE AND ONE OF THOSE HAD ALSO SEEN THE SECOND.  EACH OF THE SEVEN
TOLD THE TRIAL JUDGE THAT HE WOULD NOT BE INFLUENCED BY THE NEWS
ARTICLES, THAT HE COULD DECIDE THE CASE ONLY ON THE EVIDENCE OF RECORD,
AND THAT HE FELT NO PREJUDICE AGAINST PETITIONER AS A RESULT OF THE
ARTICLES.  THE TRIAL JUDGE, STATING HE FELT THERE WAS NO PREJUDICE TO
PETITIONER, DENIED THE MOTION FOR MISTRIAL. 

THE TRIAL JUDGE HAS A LARGE DISCRETION IN RULING ON THE ISSUE OF
PREJUDICE RESULTING FROM THE READING BY JURORS OF NEWS ARTICLES
CONCERNING THE TRIAL.  HOLD V. UNITED STATES, 218 U.S. 245, 251. 
GENERALIZATIONS BEYOND THAT STATEMENT ARE NOT PROFITABLE, BECAUSE EACH
CASE MUST TURN ON ITS SPECIAL FACTS.  WE HAVE HERE THE EXPOSURE OF
JURORS TO INFORMATION OF A CHARACTER WHICH THE TRIAL JUDGE RULED WAS SO
PREJUDICIAL IT COULD NOT BE DIRECTLY OFFERED AS EVIDENCE.  THE
PREJUDICE TO THE DEFENDANT IS ALMOST CERTAIN TO BE AS GREAT WHEN THAT
EVIDENCE REACHES THE JURY THROUGH NEWS ACCOUNTS AS WHEN IT IS A PART OF
THE PROSECUTION'S EVIDENCE.  CF. MICHELSON V. UNITED STATES, 335 U.S.
469, 475.  IT MAY INDEED BE GREATER FOR IT IS THEN NOT TEMPERED BY
PROTECTIVE PROCEDURES. 

IN THE EXERCISE OF OUR SUPERVISORY POWER TO FORMULATE AND APPLY
PROPER STANDARDS FOR ENFORCEMENT OF THE CRIMINAL LAW IN THE FEDERAL
COURTS (BRUNO V. UNITED STATES, 308 U.S. 287; MCNABB V. UNITED STATES,
318 U.S. 332) WE THINK A NEW TRIAL SHOULD BE GRANTED.  REVERSED. 

MR. JUSTICE BLACK DISSENTS. 
..END :



PETERSEN V. CALIFORNIA 360 U.S. 314 


NO. 830.  DECIDED JUNE 15, 1959.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  51 CAL. 2D 177, 331
P.2D 24. 


PETERSEN V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















ORTEGA V. BIBB 360 U.S. 314 


NO. 790, MISC.  DECIDED JUNE 15, 1959. 


ORTEGA V. BIBB, DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















SMITH V. UNITED STATES 360 U.S. 1 


NO. 90.  ARGUED JANUARY 21, 1959.  - DECIDED JUNE 8, 1959.  - 250 F.2D
842, REVERSED. 


SINCE A VIOLATION OF THE FEDERAL KIDNAPPING ACT, 18 U.S.C. SEC. 1201,
MAY BE PUNISHABLE BY DEATH, IF THE VICTIM WAS NOT LIBERATED UNHARMED
AND IF THE JURY SO RECOMMENDS, PETITIONER'S PROSECUTION FOR A VIOLATION
OF THAT ACT BY INFORMATION, INSTEAD OF INDICTMENT, VIOLATED RULE 7(A)
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, WHICH PROVIDES THAT "AN
OFFENSE WHICH MAY BE PUNISHABLE BY DEATH SHALL BE PROSECUTED BY
INDICTMENT," AND HIS CONVICTION WAS INVALID - EVEN THOUGH HE WAIVED
INDICTMENT AND IT WAS NOT ALLEGED OR PROVED THAT THE VICTIM WAS
HARMED.  PP. 2-10. 

(A)  THE STATUTE, 18 U.S.C. SEC. 1201, CREATES THE SINGLE OFFENSE OF
TRANSPORTING A KIDNAPPING VICTIM ACROSS STATE LINES, WHICH MAY BE
PUNISHED BY DEATH IF SUFFICIENT EVIDENCE OF HARM TO THE VICTIM IS
INTRODUCED AT THE TRIAL; AND SUCH AN OFFENSE MUST BE PROSECUTED BY
INDICTMENT.  PP. 8-9. 

(B)  THE SUBSTANTIAL SAFEGUARDS TO THE ACCUSED PROVIDED BY THE
REQUIREMENT THAT SUCH AN OFFENSE BE PROSECUTED BY INDICTMENT CANNOT BE
ERADICATED ON THE THEORY THAT NONCOMPLIANCE IS A MERE TECHNICAL
DEPARTURE FROM THE RULES.  P. 9. 

(C)  UNDER RULE 7(A), THE UNITED STATES ATTORNEY DID NOT HAVE
AUTHORITY TO FILE AN INFORMATION IN THIS CASE, AND THE WAIVERS MADE BY
PETITIONER WERE NOT BINDING AND DID NOT CONFER POWER ON THE CONVICTING
COURT TO HEAR THE CASE.  P. 10. 

SMITH V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER SEEKS RELIEF UNDER 28 U.S.C. SEC. 2255 FROM HIS
CONVICTION AND SENTENCE FOR VIOLATION OF THE FEDERAL KIDNAPPING ACT, 18
U.S.C. SEC. 1201.  BRIEFLY, THE KIDNAPPING CHARGE GREW OUT OF THE
FOLLOWING FACTS:  PETITIONER, A YOUNG MAN OF TWENTY-SIX, AND TWO
SEVENTEEN-YEAR-OLD BOYS, WHILE IN CUSTODY UNDER STATE CHARGES, ESCAPED
FROM A FLORIDA JAIL ON NOVEMBER 12, 1949.  THEY WERE ALMOST IMMEDIATELY
PURSUED BY MEN AND BLOODHOUNDS THROUGH SWAMPY EVERGLADE TERRAIN.  ON
NOVEMBER 14, 1949, THEY ALLEGEDLY PRE-EMPTED AN AUTOMOBILE AND SEIZED
ITS OWNER FORCING HIM TO ACCOMPANY THEM INTO THE STATE OF ALABAMA WHERE
THEY RELEASED THE VICTIM WITHOUT HARMING HIM AND SUBSEQUENTLY ABANDONED
THE CAR.  ON NOVEMBER 18, 1949, THE DEFENDANTS WERE ARRESTED BY FEDERAL
AUTHORITIES IN A HIDING PLACE UNDER THE FLOOR OF A BUILDING. 
PETITIONER CLAIMED THAT HE WAS WEAK FROM LACK OF FOOD AND SLEEP AND
THAT HIS BACK HAD BEEN INJURED IN THE COURSE OF THE ESCAPE.  THE
DEFENDANTS WERE TAKEN PROMPTLY BEFORE THE UNITED STATES COMMISSIONER
WHERE THEY WERE CHARGED WITH TRANSPORTING A KIDNAPPING VICTIM ACROSS
STATE BOUNDARIES. 

ON THE FOLLOWING DAY, PETITIONER WAS INTERVIEWED AT LENGTH BY A
GOVERNMENT AGENT CONCERNING BOTH THE KIDNAPPING OFFENSE AND HIS PRIOR
RECORD.  THERE WAS A CONFLICT IN THE EVIDENCE CONCERNING WHAT
TRANSPIRED AT THIS INTERVIEW.  THE PETITIONER TESTIFIED THAT HE WAS
PROMISED LENIENCY IF HE WOULD PLEAD GUILTY AND THAT HE WAS ASSURED THAT
THE JUVENILES WOULD BE GIVEN NO MORE THAN FOUR YEARS' IMPRISONMENT IF
THEY PLEADED GUILTY.  THE GOVERNMENT OFFERED EVIDENCE TO THE EFFECT
THAT NO PROMISES WERE MADE.  IN ANY EVENT, ON MONDAY MORNING, NOVEMBER
21, 1949, PETITIONER AND HIS CODEFENDANTS WERE BROUGHT BY THE
GOVERNMENT AGENT TO THE OFFICE OF THE UNITED STATES ATTORNEY WHERE A
DISCUSSION ENSUED CONCERNING WAIVERS OF INDICTMENTS, COUNSEL, AND
VENUE, AND PLEAS OF GUILTY TO AN INFORMATION WHICH THE UNITED STATES
ATTORNEY PROPOSED TO FILE. 

WHILE THAT CONFERENCE WAS PROCEEDING, THE GOVERNMENT AGENT WHO HAD
PREVIOUSLY INTERVIEWED PETITIONER HAD A PRIVATE OUT-OF-COURT AUDIENCE
AND CONFERENCE WITH THE DISTRICT JUDGE IN HIS CHAMBERS AT WHICH, IN THE
ABSENCE OF THE DEFENDANTS, HE DISCUSSED THE CONTEMPLATED PROCEEDINGS
WITH THE JUDGE AND INFORMED HIM ABOUT THE ALLEGED KIDNAPPING OFFENSE
AND OTHER ALLEGED CRIMES OF PETITIONER.  SOON THEREAFTER, AND, IN THE
WORDS OF THE COURT OF APPEALS, "AFTER THE JUDGE'S MIND HAD BECOME
THOROUGHLY CONDITIONED BY THIS INTERVIEW WITH, AND THE DISCLOSURES MADE
TO HIM BY, (THE GOVERNMENT AGENT) REGARDING THE DEFENDANTS," THERE
FOLLOWED IN OPEN COURT "A STILTED AND FORMAL COLLOQUY CONSISTING OF
BRIEF AND DIDACTIC STATEMENTS BY THE JUDGE" THAT THE DEFENDANTS COULD
HAVE A LAWYER IF THEY WISHED AND COULD HAVE THEIR CASES SUBMITTED TO A
GRAND JURY.  238 F.2D 925, 927, N. 5.  THE DEFENDANTS, INCLUDING
PETITIONER, STATED THAT THEY DID NOT WISH TO HAVE AN ATTORNEY AND WERE
WILLING TO WAIVE INDICTMENT AND BE PROSECUTED UNDER AN INFORMATION TO
BE FILED BY THE PROSECUTOR.  THE INFORMATION WAS IMMEDIATELY FILED AND
THE DEFENDANTS WAIVED COUNSEL AND VENUE.  (FN1)  THEY THEN IMMEDIATELY
PLEADED GUILTY TO THE INFORMATION AND STATED THAT THEY WANTED TO BE
SENTENCED PROMPTLY BEFORE THEIR PARENTS KNEW OF THEIR PREDICAMENTS. 
THE JUDGE THEN SENTENCED PETITIONER TO THIRTY YEARS IN THE PENITENTIARY
AND THE TWO SEVENTEEN-YEAR-OLD ACCOMPLICES TO FIFTEEN YEARS EACH.  NO
APPEALS WERE TAKEN.  (FN2) 

BECAUSE OF THESE PRECIPITOUS AND TELESCOPED PROCEEDINGS, THE CASE HAS
HAD A LONG AND TROUBLESOME HISTORY IN THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT.  IT HAS BEEN THREE TIMES BEFORE THAT COURT.  SOON AFTER
THE SENTENCE WAS IMPOSED, PETITIONER FILED HIS INITIAL APPLICATION
UNDER SEC. 2255 TO VACATE THE JUDGMENT.  THE APPLICATION WAS DENIED
WITHOUT A HEARING AND NO APPEAL WAS TAKEN.  IN MARCH 1954 PETITIONER
FILED A SECOND, SIMILAR APPLICATION WHICH WAS LIKEWISE DENIED WITHOUT A
HEARING, BUT ON APPEAL THE COURT OF APPEALS DETERMINED THAT
PETITIONER'S ALLEGATIONS REQUIRED A HEARING.  SMITH V. UNITED STATES,
223 F.2D 750.  AFTER THE HEARING WAS HELD, THE DISTRICT COURT AGAIN
DISMISSED THE APPLICATION.  137 F. SUPP.  222.  AGAIN THE COURT OF
APPEALS REVERSED, THIS TIME FINDING THAT PETITIONER HAD BEEN DEPRIVED
OF DUE PROCESS BY THE SUMMARY MANNER IN WHICH THE GOVERNMENT HAD
PROCEEDED AGAINST HIM.  (FN3)  SMITH V. UNITED STATES, 238 F.2D 925,
930.  FIRST THE COURT REMANDED THE CAUSE "WITH DIRECTIONS TO GRANT THE
MOTION, TO SET ASIDE THE CONVICTION AND SENTENCE, AND TO PROCEED
FURTHER AND NOT INCONSISTENTLY" WITH THE OPINION.  238 F.2D, AT 931. 
ON REHEARING, HOWEVER, THE COURT MODIFIED ITS DIRECTIONS AS FOLLOWS: 

"THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED WITH DIRECTIONS TO
SET ASIDE THE CONVICTION AND SENTENCE AND TO PROCEED FURTHER AND NOT
INCONSISTENTLY HEREWITH, INCLUDING, IF THE DISTRICT JUDGE IS OF THE
OPINION THAT THE ENDS OF JUSTICE REQUIRE IT, PERMITTING THE DEFENDANT
TO WITHDRAW HIS WAIVER OF COUNSEL AND HIS PLEA OF GUILTY AND TO STAND
TRIAL."  240 F.2D 347. 

ON THE REMANDED PROCEEDINGS, THE DISTRICT COURT RESENTENCED
PETITIONER, BUT REFUSED HIM PERMISSION TO WITHDRAW HIS WAIVERS AND
GUILTY PLEA.  THE COURT OF APPEALS AFFIRMED THIS DECISION, SMITH V.
UNITED STATES, 250 F.2D 842, OVER THE DISSENT OF JUDGE RIVERS WHO
BELIEVED THAT THE COURT'S ACTION IN SETTING ASIDE THE CONVICTION ON
JUSTIFIED DUE PROCESS GROUNDS NECESSARILY REQUIRED THE VACATION OF THE
PLEA OF GUILTY.  250 F.2D 842, 843-844.  HE ALSO DISSENTED ON THE
GROUND THAT KIDNAPPING UNDER 18 U.S.C. SEC. 1201 IS A CAPITAL OFFENSE,
WHICH, PURSUANT TO THE FEDERAL RULES OF CRIMINAL PROCEDURE, RULE 7(A),
REQUIRES PROSECUTION BY INDICTMENT REGARDLESS OF A DEFENDANT'S WAIVER,
AND THAT PROSECUTION BY INFORMATION IN THE INSTANT PROCEEDING HAD NOT
CONFERRED ON THE CONVICTING COURT JURISDICTION TO TRY PETITIONER'S
CASE.  WE GRANTED CERTIORARI BECAUSE OF THE SERIOUS DUE PROCESS AND
STATUTORY QUESTIONS RAISED.  357 U.S. 904.  BUT IN VIEW OF OUR BELIEF
THAT THE INDICTMENT POINT IS DISPOSITIVE OF THE CASE IN PETITIONER'S
FAVOR, WE FIND IT UNNECESSARY TO REACH THE DUE PROCESS QUESTIONS
PRESENTED. 

THE PRECISE QUESTION AT ISSUE, THEREFORE, IS WHETHER PETITIONER'S
ALLEGED VIOLATION OF THE KIDNAPPING ACT HAD TO BE PROSECUTED BY
INDICTMENT.  A NUMBER OF STATUTORY AND CONSTITUTIONAL PROVISIONS AND
THE INFORMATION CHARGING PETITIONER ARE RELEVANT TO THIS INQUIRY.  THE
FIFTH AMENDMENT PROVIDES IN PART THAT "NO PERSON SHALL BE HELD TO
ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A
PRESENTMENT OR INDICTMENT OF A GRAND JURY," EXCEPT IN CASES NOT
PERTINENT HERE.  BUT THE COMMAND OF THE AMENDMENT MAY BE WAIVED UNDER
CERTAIN CIRCUMSTANCES, (FN4) AND THE FEDERAL RULES OF CRIMINAL
PROCEDURE, RULE 7(A), PROVIDE AS FOLLOWS: 

"AN OFFENSE WHICH MAY BE PUNISHED BY DEATH SHALL BE PROSECUTED BY
INDICTMENT.  AN OFFENSE WHICH MAY BE PUNISHED BY IMPRISONMENT FOR A
TERM EXCEEDING ONE YEAR OR AT HARD LABOR SHALL BE PROSECUTED BY
INDICTMENT OR, IF INDICTMENT IS WAIVED, IT MAY BE PROSECUTED BY
INFORMATION.  ANY OTHER OFFENSE MAY BE PROSECUTED BY INDICTMENT OR BY
INFORMATION.  AN INFORMATION MAY BE FILED WITHOUT LEAVE OF COURT." 

THESE ENACTMENTS BECOME PARTICULARLY PERTINENT IN VIEW OF THE
LANGUAGE OF 18 U.S.C. SEC. 1201, THE STATUTE UNDER WHICH PETITIONER WAS
CONVICTED, WHICH PROVIDES IN PART THAT: 

"(A)  WHOEVER KNOWINGLY TRANSPORTS IN INTERSTATE  ...  COMMERCE, ANY
PERSON WHO HAS BEEN UNLAWFULLY  ...  KIDNAPPED  ...  SHALL BE PUNISHED
(1) BY DEATH IF THE KIDNAPPED PERSON HAS NOT BEEN LIBERATED UNHARMED,
AND IF THE VERDICT OF THE JURY SHALL SO RECOMMEND, OR (2) BY
IMPRISONMENT FOR ANY TERM OF YEARS OR FOR LIFE, IF THE DEATH PENALTY IS
NOT IMPOSED. 

THE CHARGING PART OF THE INFORMATION AGAINST PETITIONER STATED THAT
HE "DID KNOWINGLY TRANSPORT IN INTERSTATE COMMERCE  ...  A PERSON, TO
WIT, ALAN W. SPEARMAN, JR., WHO HAD BEEN UNLAWFULLY SEIZED, KIDNAPPED,
ABDUCTED, AND CARRIED AWAY AND HELD FOR THE SAFE CONDUCT OF THE THREE
DEFENDANTS  ...  ."   THE CHARGE DID NOT STATE WHETHER SPEARMAN WAS
RELEASED HARMED OR UNHARMED. 

IT HAS BEEN HELD BY TWO COURTS OF APPEALS THAT INDICTMENTS SIMILAR IN
TERMS TO THE CHARGE HERE WERE SUFFICIENT TO SUPPORT CAPITAL PUNISHMENTS
DESPITE THE ABSENCE OF ALLEGATIONS THAT THE KIDNAPPING VICTIMS WERE
RELEASED HARMED.  UNITED STATES V. PARRINO, 180 F.2D 613; ROBINSON V.
UNITED STATES, 144 F.2D 392.  CF. UNITED STATES V. PARKER, 103 F.2D
857.  PETITIONER CONTENDS THAT THESE HOLDINGS DISPOSE OF HIS CASE
BECAUSE THEY MAKE CLEAR THAT THE STATUTE CREATES A SINGLE OFFENSE OF
KIDNAPPING WHICH MAY BE PUNISHED BY DEATH IF THE PROSECUTION, AT TRIAL,
SHOWS THAT THE VICTIM WAS RELEASED IN A HARMED CONDITION.  THE
GOVERNMENT CLAIMS, HOWEVER, THAT WHETHER A SPECIFIC KIDNAPPING
CONSTITUTES A CAPITAL OFFENSE REQUIRES EXAMINATION OF THE EVIDENCE TO
DETERMINE WHETHER THE VICTIM WAS RELEASED HARMED OR UNHARMED; IN OTHER
WORDS, THAT THE STATUTE CREATES TWO OFFENSES:  KIDNAPPING WITHOUT HARM,
WHICH IS PUNISHABLE BY A TERM OF YEARS, AND KIDNAPPING WITH HARM, WHICH
IS PUNISHABLE BY DEATH.  FURTHER, THE GOVERNMENT CONTENDS THAT THE MERE
FILING OF AN INFORMATION BY THE UNITED STATES ATTORNEY ELIMINATED THE
CAPITAL ELEMENT OF THE CRIME. 

THE COURTS OF APPEALS WHICH HAVE BEEN CONCERNED WITH THE STATUTE HAVE
UNIFORMLY CONSTRUED IT TO CREATE THE SINGLE OFFENSE OF TRANSPORTING A
KIDNAPPING VICTIM ACROSS STATE LINES.  WE AGREE WITH THIS
CONSTRUCTION.  UNDER THE STATUTE, THAT OFFENSE IS PUNISHABLE BY DEATH
IF CERTAIN PROOF IS INTRODUCED AT TRIAL.  WHEN AN ACCUSED IS CHARGED,
AS HERE, WITH TRANSPORTING A KIDNAPPING VICTIM ACROSS STATE LINES, HE
IS CHARGED AND WILL BE TRIED FOR AN OFFENSE WHICH MAY BE PUNISHED BY
DEATH.  ALTHOUGH THE IMPOSITION OF THAT PENALTY WILL DEPEND ON WHETHER
SUFFICIENT PROOF OF HARM IS INTRODUCED DURING THE TRIAL, THAT
CIRCUMSTANCE DOES NOT ALTER THE FACT THAT THE OFFENSE ITSELF IS ONE
WHICH MAY BE PUNISHED BY DEATH AND THUS MUST BE PROSECUTED BY
INDICTMENT.  IN OTHER WORDS, WHEN THE OFFENSE AS CHARGED IS
SUFFICIENTLY BROAD TO JUSTIFY A CAPITAL VERDICT, THE TRIAL MUST PROCEED
ON THAT BASIS, EVEN THOUGH THE EVIDENCE LATER ESTABLISHES THAT SUCH A
VERDICT CANNOT BE SUSTAINED BECAUSE THE VICTIM WAS RELEASED UNHARMED. 
IT IS NEITHER PROCEDURALLY CORRECT NOR PRACTICAL TO AWAIT THE
CONCLUSION OF THE EVIDENCE TO DETERMINE WHETHER THE ACCUSED IS BEING
PROSECUTED FOR A CAPITAL OFFENSE.  FOR THE TRIAL JUDGE MUST MAKE
INFORMED DECISIONS PRIOR TO TRIAL WHICH WILL DEPEND ON WHETHER THE
OFFENSE MAY BE SO PUNISHED.  HE MUST DECIDE, AMONG OTHER THINGS,
WHETHER THE ACCUSED HAS THE RIGHT TO OBTAIN A LIST OF VENIREMEN AND
GOVERNMENT WITNESSES, 18 U.S.C. SEC. 3432, WHETHER VENUE IS PROPERLY
SET, 18 U.S.C. SEC. 3235, WHETHER THE ACCUSED HAS THE BENEFIT OF TWENTY
RATHER THAN TEN PEREMPTORY CHALLENGES, FEDERAL RULES OF CRIMINAL
PROCEDURE, RULE 24(B), WHETHER INDICTMENT RATHER THAN INFORMATION IS
NECESSARY, FEDERAL RULES OF CRIMINAL PROCEDURE, RULE 7, AND WHO MAY
BAIL THE ACCUSED.  18 U.S.C. SEC. 3141. 

THIS COURT HAS, IN RECENT YEARS, UPHELD MANY CONVICTIONS IN THE FACE
OF QUESTIONS CONCERNING THE SUFFICIENCY OF THE CHARGING PAPERS. 
CONVICTIONS ARE NO LONGER REVERSED BECAUSE OF MINOR AND TECHNICAL
DEFICIENCIES WHICH DID NOT PREJUDICE THE ACCUSED.  E.G., HAGNER V.
UNITED STATES, 285 U.S. 427; WILLIAMS V. UNITED STATES, 341 U.S. 97;
UNITED STATES V. DEBROW, 346 U.S. 374.  THIS HAS BEEN A SALUTARY
DEVELOPMENT IN THE CRIMINAL LAW.  BUT THE SUBSTANTIAL SAFEGUARDS TO
THOSE CHARGED WITH SERIOUS CRIMES CANNOT BE ERADICATED UNDER THE GUISE
OF TECHNICAL DEPARTURES FROM THE RULES.  THE USE OF INDICTMENTS IN ALL
CASES WARRANTING SERIOUS PUNISHMENT WAS THE RULE AT COMMON LAW.  EX
PARTE WILSON, 114 U.S. 417; MACKIN V. UNITED STATES, 117 U.S. 348.  THE
FIFTH AMENDMENT MADE THE RULE MANDATORY IN FEDERAL PROSECUTIONS IN
RECOGNITION OF THE FACT THAT THE INTERVENTION OF A GRAND JURY WAS A
SUBSTANTIAL SAFEGUARD AGAINST OPPRESSIVE AND ABRITRARY PROCEEDINGS.  EX
PARTE BAIN, 121 U.S. 1; HALE V. HENKEL, 201 U.S. 43; TOTH V. QUARLES,
350 U.S. 11, 16.  RULE 7(A) RECOGNIZES THAT THIS SAFEGUARD MAY BE
WAIVED, BUT ONLY IN THOSE PROCEEDINGS WHICH ARE NONCAPITAL.  TO
CONSTRUE THE PROVISIONS OF THE RULE LOOSELY TO PERMIT THE USE OF
INFORMATIONS WHERE, AS HERE, THE CHARGE STATES A CAPITAL OFFENSE, WOULD
DO VIOLENCE TO THAT RULE AND WOULD MAKE VULNERABLE TO SUMMARY TREATMENT
THOSE ACCUSED OF ONE OF OUR MOST SERIOUS CRIMES.  WE CANNOT DO THIS IN
VIEW OF THE TRADITIONAL CANON OF CONSTRUCTION WHICH CALLS FOR THE
STRICT INTERPRETATION OF CRIMINAL STATUTES AND RULES IN FAVOR OF
DEFENDANTS WHERE SUBSTANTIAL RIGHTS ARE INVOLVED. 

IT IS URGED THAT THIS RESULT WILL FAIL TO PROTECT SUBSTANTIAL RIGHTS
OF DEFENDANTS IN OTHER CASES.   WE SEE NO MERIT IN THAT CONTENTION,
PARTICULARLY WHERE THE OPPOSITE CONCLUSION WOULD DEPRIVE DEFENDANTS OF
THE PROTECTION OF A GRAND JURY INDICTMENT AS REQUIRED BY THE
CONSTITUTION AND RULE 7(A).  UNDER OUR HOLDING, THERE IS NO REASON TO
BELIEVE THAT A DEFENDANT IN A CASE SUCH AS THIS WOULD BE SURPRISED ON
HIS TRIAL BY ANY POSSIBLE TRICKERY OF THE PROSECUTION.  IF THERE IS NO
ALLEGATION OF HARM IN THE INDICTMENT, THE DISCOVERY PROCEEDINGS
AFFORDED IN CAPITAL CASES AND THE PROVISIONS OF RULE 7(F) AUTHORIZING
BILLS OF PARTICULARS WILL ENABLE THE DEFENDANT TO ACQUAINT HIMSELF WITH
THE SCOPE OF THE TRIAL AND THE CRIMINAL TRANSACTION TO BE PROVED.  IT
IS FURTHER SUGGESTED THAT IT MIGHT BE IN THE INTERESTS OF THE DEFENDANT
TO HAVE THE BENEFIT OF THE SPEED THAT CAN BE MUSTERED BY THE FILING OF
AN INFORMATION INSTEAD OF AN INDICTMENT.  WHILE JUSTICE SHOULD BE
ADMINISTERED WITH DISPATCH, THE ESSENTIAL INGREDIENT IS ORDERLY
EXPEDITION AND NOT MERE SPEED.  IT IS WELL TO NOTE THAT IN THIS VERY
CASE THE INORDINATE SPEED THAT WAS GENERATED THROUGH THE FILING OF THE
INFORMATION CAUSED MANY OF THE DIFFICULTIES WHICH LED THE COURT BELOW
TO CONCLUDE THAT PETITIONER HAD BEEN DEPRIVED OF DUE PROCESS OF LAW. 
MOREOVER, IF, CONTRARY TO SOUND JUDICIAL ADMINISTRATION IN OUR FEDERAL
SYSTEM, ARREST AND INCARCERATION ARE FOLLOWED BY INORDINATE DELAY PRIOR
TO INDICTMENT, A DEFENDANT MAY, UNDER APPROPRIATE CIRCUMSTANCES, INVOKE
THE PROTECTION OF THE SIXTH AMENDMENT. 

UNDER OUR VIEW OF RULE 7(A), THE UNITED STATES ATTORNEY DID NOT HAVE
AUTHORITY TO FILE AN INFORMATION IN THIS CASE AND THE WAIVERS MADE BY
PETITIONER WERE NOT BINDING AND DID NOT CONFER POWER ON THE CONVICTING
COURT TO HEAR THE CASE.  CF. EX PARTE WILSON, SUPRA.  THE JUDGMENT AND
CONVICTION ARE REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT
WITH INSTRUCTIONS TO DISMISS THE INFORMATION.  IT IS SO ORDERED. 

FN1  18 U.S.C. SEC. 3235 PROVIDES: 

"THE TRIAL OF OFFENSES PUNISHABLE WITH DEATH SHALL BE HAD IN THE
COUNTY WHERE THE OFFENSE WAS COMMITTED, WHERE THAT CAN BE DONE WITHOUT
GREAT INCONVENIENCE." 

THE FEDERAL RULES OF CRIMINAL PROCEDURE, RULE 18, PROVIDE: 

"EXCEPT AS OTHERWISE PERMITTED BY STATUTE OR BY THESE RULES, THE
PROSECUTION SHALL BE HAD IN A DISTRICT IN WHICH THE OFFENSE WAS
COMMITTED, BUT IF THE DISTRICT CONSISTS OF TWO OR MORE DIVISIONS THE
TRIAL SHALL BE HAD IN A DIVISION IN WHICH THE OFFENSE WAS COMMITTED." 

THE OFFENSE OF WHICH PETITIONER WAS ACCUSED WAS COMMITTED IN DOTHAN,
ALABAMA, WHICH WAS WITHIN THE SOUTHERN DIVISION OF THE DISTRICT COURT. 
THE PROCEEDINGS AGAINST PETITIONER WERE HELD IN MONTGOMERY, ALABAMA,
WHICH IS LOCATED IN ANOTHER COUNTY IN ALABAMA IN THE NORTHERN DIVISION
OF THAT COURT. 

FN2  THIS LEFT PETITIONER WITH A SUBSTANTIAL SENTENCE STILL PENDING
IN FLORIDA UNDER THE CHARGE FOR WHICH HE WAS IN CUSTODY WHEN HE
ESCAPED.  IN ADDITION, PETITIONER WAS APPARENTLY STILL IN JEOPARDY OF
STATE PROSECUTION FOR ESCAPING. 

FN3  THE COURT OF APPEALS STATED, AT 238 F.2D 930: 

"WHEN IT COMES TO THE CONTROLLING QUESTION, HOWEVER, WHICH THE MOTION
PRESENTS, WHETHER UNDER THE UNDISPUTED FACTS THE DEFENDANT WAS DENIED
DUE PROCESS IN THE TAKING OF WAIVERS AND PLEA, AND THE IMPOSITION OF
SENTENCE THE MATTER STANDS QUITE DIFFERENTLY, AND BECAUSE IT IS CLEAR
THAT IT WAS NOT ACCORDED TO HIM, THE JUDGMENT APPEALED FROM MUST BE
REVERSED. 

"THIS IS SO, BECAUSE, CONSIDERING THE INORDINATE SPEED, THE
INCONTINENT HASTE, WITH WHICH THE DEFENDANTS WERE BROUGHT UP FOR
HEARING AND THE TRIAL MOVED ON APACE, THE FACT THAT THE GOVERNMENT
PROSECUTING AGENT AND THE DISTRICT JUDGE, BEFORE THE DEFENDANT HAD MADE
ANY WAIVERS OR PLEADED IN THE CAUSE, CONFERRED PRIVATELY IN CHAMBERS
WITH REGARD TO DEFENDANTS' GUILT AND THE PUNISHMENT TO BE IMPOSED
THEREFOR, IN CONNECTION WITH BOTH WHAT WAS SAID AND DONE AND WHAT WAS
LEFT UNSAID AND UNDONE BY THE JUDGE IN TAKING THE WAIVERS AND THE PLEA
AND SENTENCING THE DEFENDANT, WE ARE LEFT IN NO DOUBT THAT THE MOVANT
WAS NOT ACCORDED, BUT WAS DENIED, DUE PROCESS, AND THAT THE JUDGMENT
AGAINST, AND SENTENCE IMPOSED UPON HIM MAY NOT STAND." 

FN4  BARKMAN V. SANFORD, 162 F.2D 592; UNITED STATES V. GILL, 55 F.2D
399. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

JOHNNY RAY SMITH, PRESENTLY AN INMATE OF ALCATRAZ, BEGAN HIS CAREER
OF CRIME AS A JUVENILE.  SOON THEREAFTER HE ESCAPED FROM THE FEDERAL
CORRECTIONAL INSTITUTION AT TALLAHASSEE, FLORIDA.  AT AGE 26 HE HAD
TWICE BEEN CONVICTED OF VIOLATIONS OF THE DYER ACT, 18 U.S.C. SEC.
2312, WAS SERVING 25 YEARS IN A FLORIDA PRISON FOR ARMED ROBBERY, AND
HAD SERIOUSLY WOUNDED AN OFFICER WHILE FLEEING FROM THE SCENE OF THE
LATTER CRIME.  HE, WITH TWO JUVENILE INMATES, ESCAPED THE FLORIDA
PRISON, BURGLARIZED A HOUSE, STOLE A SHOTGUN, AND ALLEGEDLY KIDNAPED
ALAN W. SPEARMAN, JR., AT SHOTGUN POINT, WHILE THE LATTER WAS SITTING
IN HIS COMPANY'S AUTOMOBILE.  THEY FORCED SPEARMAN TO ACCOMPANY THEM IN
THE CAR ACROSS THE FLORIDA LINE INTO ALABAMA.  THERE, AFTER THE RELEASE
OF SPEARMAN, THEY ABANDONED THE CAR AND WERE LATER ARRESTED IN THEIR
HIDING PLACE UNDER A BUILDING.  EACH ADMITTED GUILT AND ASKED FOR A
SPEEDY TRIAL.  SMITH ADVISED THE UNITED STATES COMMISSIONER, THE
FEDERAL BUREAU OF INVESTIGATION, THE PROSECUTOR AND THE DISTRICT JUDGE
THAT HE DID NOT WANT A LAWYER; HE WAIVED INDICTMENT AND VENUE, PLEADED
GUILTY TO AN INFORMATION CHARGING KIDNAPING AND THREW HIMSELF ON THE
MERCY OF THE COURT IN THESE WORDS: 

"WELL, YOUR HONOR, I WOULD LIKE FOR YOU TO TAKE UNDER CONSIDERATION
THAT THERE WAS NO VICIOUSNESS IN CONNECTION WITH THIS ABDUCTION OF THIS
BOY.  WE WERE NICE TO HIM AND DID NOT HARM HIM ANY WAY AND WE WANTED
TRANSPORTATION AND DID NOT HARM HIM ANY AT ALL." 

SMITH RECEIVED A 30-YEAR SENTENCE; THE JUVENILES 15 YEARS EACH.  HE
WAS SENT TO ALCATRAZ AND FROM THERE HAS PROSECUTED A SERIES OF MOTIONS
UNDER 28 U.S.C. SEC. 2255, APPEARING TWICE TO TESTIFY IN THE DISTRICT
COURT OF FLORIDA.  THE COURT OF APPEALS HAS CONSIDERED HIS CASE THREE
TIMES AND HE IS NOW HERE ATTACKING HIS SENTENCE ON TWO POINTS:  (1) CAN
A KIDNAPING CHARGE, WHERE THE KIDNAPED PERSON IS RELEASED UNHARMED, BE
PROSECUTED BY INFORMATION; AND, (2) IS DUE PROCESS VIOLATED WHEN THE
TRIAL JUDGE, BEFORE A GUILTY PLEA IS ENTERED AND OUTSIDE THE PRESENCE
OF THE ACCUSED OR HIS COUNSEL, CONFERS WITH AN FBI AGENT CONCERNING THE
FACTS OF THE CHARGE AND THE PRIOR RECORD OF THE ACCUSED?  THE COURT,
WITHOUT REACHING THE SECOND QUESTION, SAYS THAT KIDNAPING CAN BE
PROSECUTED ONLY BY INDICTMENT AND THAT A CHARGE IN THE GENERAL WORDS OF
THE STATUTE IS SUFFICIENT. 

IN ATTEMPTING TO DO WHAT IT BELIEVES TO BE A GREAT RIGHT THE COURT IN
REALITY DOES A GREAT WRONG TO THE ADMINISTRATION OF JUSTICE.  THE MOST
SERIOUS RESULT IS THAT THE COURT'S PROCEDURE ALLOWS THE UNITED STATES
ATTORNEY TO SECURE AN INDICTMENT FOR A CAPITAL OFFENSE WITHOUT THE
GRAND JURY'S KNOWING THAT HE IS DOING SO.  THIS DEPRIVES KIDNAPING
DEFENDANTS OF THE VERY PROTECTION OF THE FIFTH AMENDMENT THAT THE COURT
PROFESSES TO BE ENFORCING.  THE COURT ALSO CLOUDS THE MEANING OF RULE
7(B) AS TO WAIVER OF INDICTMENT BY CARVING NONCAPITAL KIDNAPING
OFFENSES OUT OF ITS SPECIFIC PERMISSIVE TERMS. 

BOTH THE FIFTH AMENDMENT AND RULE 7(A) REQUIRE CAPITAL OFFENSES TO BE
PROSECUTED BY INDICTMENT.  KIDNAPING IS NOT SUCH AN OFFENSE UNLESS "THE
KIDNAPED PERSON HAS NOT BEEN LIBERATED UNHARMED."  18 U.S.C. SEC.
1201(A).  IT IS REASONABLE TO SAY THAT BEFORE ONE CAN BE PROSECUTED FOR
THE CAPITAL OFFENSE HE MUST BE CHARGED WITH IT, NAMELY, KIDNAPING WHERE
"THE KIDNAPED PERSON HAS NOT BEEN LIBERATED UNHARMED."  TO DO OTHERWISE
DOES NOT PLACE HIM ON NOTICE OF THE OFFENSE FOR WHICH HE IS TO BE
TRIED.  THE COURT, HOWEVER, HOLDS THAT SEC. 1201(A) CREATES A "SINGLE
OFFENSE  ...  (WHICH) IS PUNISHABLE BY DEATH IF CERTAIN PROOF IS
INTRODUCED AT TRIAL."  IT REASONS THAT THIS MAKES EVERY KIDNAPING A
CAPITAL CASE REQUIRING GRAND JURY ACTION.  BUT IT DOES NOT REQUIRE THAT
THE GRAND JURY CONSIDER WHETHER "THE KIDNAPED PERSON HAS NOT BEEN
LIBERATED UNHARMED" AND SO ALLEGE IN THE INDICTMENT.  THUS THE GRAND
JURY IS DEPRIVED OF ANY KNOWLEDGE OF THE ELEMENT OF THE OFFENSE THAT
MAKES IT CAPITAL.  HENCE A GRAND JURY IN COMPLETE IGNORANCE OF THE
FACTS AS TO HARM SUFFERED BY THE VICTIM AT THE TIME OF RELEASE IS
REQUIRED TO RETURN AN INDICTMENT WHICH WILL SUPPORT THE DEATH PENALTY
IF PROOF OF SUCH HARM IS SHOWN AT THE TRIAL.  THIS PUTS THE LAW AS TO
CAPITAL CASES INTO THE HANDS OF THE PROSECUTOR, NOT THE GRAND JURY,
WHERE BOTH THE FIFTH AMENDMENT AND RULE 7(A) HAVE LODGED IT.  NOR DOES
IT STRENGTHEN THE GRAND JURY, TO USE THE WORDS OF THE COURT, AS A
"SUBSTANTIAL SAFEGUARD AGAINST OPPRESSIVE AND ARBITRARY PROCEEDINGS." 
ON THE CONTRARY, THE COURT'S REFERENCE TO DISCOVERY PROCEEDINGS AFTER
INDICTMENT AS A MEANS FOR ACQUAINTING A DEFENDANT "WITH THE SCOPE OF
THE TRIAL AND THE CRIMINAL TRANSACTION TO BE PROVED" CLEARLY SHOWS THE
FALLACY OF ITS POSITION.  THE GRAND JURY SHOULD HAVE THIS INFORMATION
BEFORE IT RETURNS A CAPITAL CHARGE, OTHERWISE, NONE SHOULD EXIST UNDER
THE INDICTMENT.  BY THIS REASONING, THE COURT DEPRIVES THE DEFENDANT OF
THE SAFEGUARD OF PROPER GRAND JURY PROCEEDINGS AS REQUIRED BY THE
CONSTITUTION IN CAPITAL CASES. 

MOREOVER, AS THE COURT SAYS, "IT IS NEITHER PROCEDURALLY CORRECT NOR
PRACTICAL TO AWAIT THE CONCLUSION OF THE EVIDENCE TO DETERMINE WHETHER
THE ACCUSED IS BEING PROSECUTED FOR A CAPITAL OFFENSE."  DESPITE THIS
LANGUAGE, THE OPINION REQUIRES JUST THAT SINCE IT DOES NOT COMPEL THE
INDICTMENT TO CHARGE "A CAPITAL OFFENSE."  I WOULD REQUIRE CAPITAL
KIDNAPING CASES TO BE PROSECUTED BY INDICTMENT CHARGING SPECIFICALLY
THAT THE KIDNAPED PERSON WAS NOT LIBERATED UNHARMED. 

TURNING TO THE PROCEDURAL POINT UNDER RULE 7(A) AND (B) WE SHOULD
REMEMBER IT WAS THIS COURT THAT ADOPTED THESE RULES OF CRIMINAL
PROCEDURE, CERTIFIED THEM TO THE CONGRESS, WHICH ADDED ITS SANCTION,
AND THEN PROMULGATED THEM.  THEY ARE SIMPLE AND CLEAR.  RULE 7(A)
PROVIDES THAT AN OFFENSE "WHICH MAY" BE PUNISHED BY DEATH MUST BEGIN BY
INDICTMENT, WHILE A NONCAPITAL OFFENSE MAY BE PROSECUTED BY
INFORMATION, IF INDICTMENT IS WAIVED.  RULE 7(B) REPEATS THAT AN
OFFENSE "WHICH MAY" RECEIVE A SENTENCE FOR A TERM OF YEARS "MAY BE"
BEGUN BY INFORMATION "IF THE DEFENDANT, AFTER HE HAS BEEN ADVISED OF
THE NATURE OF THE CHARGE AND OF HIS RIGHTS, WAIVES IN OPEN COURT
PROSECUTION BY INDICTMENT."  IN FILING THE INFORMATION UNDER THE
KIDNAPING ACT, THE GOVERNMENT FORECLOSES ITSELF FROM SEEKING THE DEATH
PENALTY.  THE FIFTH AMENDMENT, AS WELL AS RULE 7(A), WOULD PREVENT IT
FROM RENEGING ON THIS BARGAIN.  THE ONLY POSSIBLE SENTENCE WOULD,
THEREFORE, BE ONE FOR A TERM OF YEARS.  MOREOVER, SMITH KNEW THIS FULL
WELL, AS IS SHOWN BY HIS OWN TESTIMONY.  NOT ONLY HAD THE UNITED STATES
ATTORNEY SO ADVISED BUT THE UNITED STATES COMMISSIONER AND THE DISTRICT
JUDGE HAD CLEARLY TOLD SMITH OF THE LAW IN THE MATTER.  HIS REQUEST AT
SENTENCING POINTS UP HIS UNDERSTANDING THEREOF.   THE RECORD ALSO
INDICATES THAT THE REQUIREMENTS OF RULE 7(B) WERE SCRUPULOUSLY
FOLLOWED. 

THE COURT, HOWEVER, SUPERIMPOSES A NEW RULE IN KIDNAPING CASES BY
REQUIRING THAT THEY BE BEGUN ONLY BY INDICTMENT.  THIS DEPRIVES SUCH
DEFENDANTS NOT ONLY OF THE BENEFICENT PROVISIONS OF RULE 7(B) BUT
SUBJECTS THEM TO GREATER JEOPARDY IN THAT THE UNITED STATES ATTORNEY
MAY INSIST ON THE DEATH PENALTY AT TRIAL.  THIS LEAVES OPEN FOR PLAY
ALL OF THE EVILS THAT FLESH IS HEIR TO, INCLUDING THE AMBITIONS OR
DISFAVOR OF THE PROSECUTOR, THE ANIMOSITY OF THE VICTIM OR HIS
MALINGERINGS FROM THE KIDNAPING AS WELL AS OTHER POSTINDICTMENT
SPECULATIONS.  IN RURAL DISTRICTS WHERE THE GRAND JURY ONLY MEETS TWICE
A YEAR IT WOULD ALSO PLACE CONSIDERABLE HARDSHIP ON A DEFENDANT WAITING
FOR A GRAND JURY TO BE EMPANELED.  (FN1)  HE RECEIVES NO CREDIT FOR THE
TIME SO SERVED AND PUTS THE FEDERAL GOVERNMENT TO THE EXPENSE OF
INCARCERATION IN THE LOCAL JAIL ON A PER DIEM BASIS.  NOR WOULD THE
CALLING OF A SPECIAL GRAND JURY SOLVE THE PROBLEM.  IT WOULD NOT ONLY
BE VERY EXPENSIVE TO THE GOVERNMENT BUT BURDENSOME TO THOSE CALLED TO
SERVE, LIKEWISE TAKING THE TIME OF THE COURT FROM OTHER PRESSING
MATTERS, EITHER IN ITS OWN DISTRICT OR IN OTHERS THAT SUFFER FROM
CONGESTED DOCKETS.  ON THE OTHER HAND, FOLLOWING RULE 7(B) WOULD FULLY
PROTECT SOCIETY.  THE DEFENDANT WOULD BE ON NOTICE OF THE CHARGE
AGAINST HIM AND WOULD RECEIVE THE FULL ENJOYMENT OF ALL OF HIS RIGHTS. 
(FN2)  AND, FINALLY, THE PROSECUTOR WOULD NOT BE ABLE, AT HIS WHIM, TO
SUPERINDUCE THE DEATH PENALTY ON AN OTHERWISE NONCAPITAL CASE.  IN
SHORT, JUSTICE WOULD BE DONE. 

IT IS TRUE THAT THREE COURTS OF APPEALS HAVE PASSED ON THIS STATUTE. 
HOWEVER, NONE OF THOSE CASES IS DISPOSITIVE OF THE ISSUE HERE.  IN
ROBINSON V. UNITED STATES, 144 F.2D 392, 396, THE INDICTMENT ALLEGED
THAT THE ACCUSED DID "BEAT, INJURE, BRUISE AND HARM (MRS. STOLL)  ...
AND DID NOT LIBERATE HER UNHARMED."  IT IS, THEREFORE, ENTIRELY
INAPPOSITE SINCE THE INDICTMENT SPECIFICALLY ALLEGED A CAPITAL
OFFENSE.  UNITED STATES V. PARKER, 103 F.2D 857, IN CONSTRUING THE THEN
SEC. 40 OF THE JUDICIAL CODE REQUIRING TRIAL OF CAPITAL CASES TO BE
"HAD IN THE COUNTY WHERE THE OFFENSE WAS COMMITTED, WHERE THAT CAN BE
DONE WITHOUT GREAT INCONVENIENCE," ONLY DECIDED THAT THE APPLICATION
FOR CHANGE OF VENUE WAS ADDRESSED TO THE SOUND DISCRETION OF THE COURT,
WHICH "WAS NOT ABUSED."  IT SPECIFICALLY HELD THAT "WHETHER SUCH
AVERMENTS (THAT THE VICTIM HAD BEEN RELEASED IN A HARMED CONDITION)
WERE NECESSARY (IN THE INDICTMENT) TO SUPPORT A DEMAND FOR THE
IMPOSITION OF THE DEATH PENALTY WE NEED NOT DECIDE  ...  ."  ID., AT
861.  THE COURT CONCLUDED THAT "SINCE THE EVIDENCE TAKEN AT THE TRIAL
ESTABLISHED THAT HE WAS LIBERATED  ...  IN A SOUND AND UNHARMED
CONDITION," IBID., THE CASE, IN ANY EVENT, WAS NOT ONE IN WHICH THE
DEATH PENALTY COULD BE IMPOSED.  THE LAST CASE MENTIONED BY THE
MAJORITY IS UNITED STATES V. PARRINO, 180 F.2D 613.  THAT CASE INVOLVED
THE STATUTE OF LIMITATIONS AND THE ISSUE INVOLVED HERE WAS NOT, AS THE
COURT SAID, "RELEVANT TO  ... WHETHER THE SECOND INDICTMENT WAS FOUND
IN TIME."  ID., AT 615.  THE GOVERNMENT CONTENDED THAT IF THE CASE WAS
"CAPITAL" THE INDICTMENT MIGHT BE RETURNED AT ANY TIME.  THE COURT HELD
THAT THERE WAS NO INFORMATION IN THE RECORD AS TO THE CONDITION OF THE
VICTIM AT THE TIME OF HIS RELEASE.  ALTHOUGH IT AGREED WITH THE
GOVERNMENT "THAT IT WAS NOT NECESSARY TO ALLEGE THAT THE VICTIM WAS NOT
RELEASED 'UNHARMED' IN ORDER THAT THE JURY MIGHT RECOMMEND THE DEATH
PENALTY," IT HELD THAT "THE ACCUSED HAS TO BE ADEQUATELY ADVISED OF IT
(AND THAT) IT WILL BE ENOUGH IF HE GETS THE INFORMATION IN SEASON FROM
ANY SOURCE."  IBID.  CERTAINLY THE CASE IS NOT DISPOSITIVE OF THE ISSUE
HERE.  IN FACT IT SUPPORTS THE PROPOSITION THAT "THE ACCUSED MUST BE
ADEQUATELY ADVISED  ...  IN SEASON" IF THE GOVERNMENT CLAIMS THE VICTIM
WAS RELEASED "HARMED."  I SAY THAT "ADEQUATELY ADVISED IN SEASON" WOULD
BE CERTAIN ONLY IF SUCH AN ALLEGATION WAS MADE IN THE INDICTMENT. 
WHETHER FROM A TECHNICAL STANDPOINT THAT MAKES TWO OFFENSES OF THE
CRIME OF "KIDNAPING" IS, THEREFORE, NOT MATERIAL.  IN MY VIEW, IT DOES
CREATE TWO SUCH OFFENSES, (1) WHERE THE KIDNAPED PERSON HAS NOT BEEN
RELEASED UNHARMED, AND (2) WHERE HE HAS BEEN LIBERATED UNHARMED.  IN
EITHER EVENT WE SHOULD FOLLOW THE MANDATE OF THE FIFTH AMENDMENT AND
RULE 7 AND UNDER OUR POWER OF SUPERVISION OVER FEDERAL COURTS REQUIRE
IN THE FUTURE SUCH PROCEDURAL SAFEGUARDS AS ARE OUTLINED HEREIN. 

THIS BRINGS ME TO THE SECOND CONTENTION.  I SHALL DISCUSS THE FACTS
BRIEFLY.  THE "INORDINATE SPEED" WHICH THE COURT SAYS WAS PRESENT HERE
WAS NOT GENERATED BY THE GOVERNMENT BUT BY THE PETITIONER HIMSELF.  THE
RECORD CLEARLY SHOWS HIS ANXIETY TO HAVE THE CASE CONCLUDED AND FAILS
TO INDICATE ANY OBJECTION ON HIS PART TO THE IMMEDIATE IMPOSITION OF
SENTENCE.  THE DISPOSITION OF CASES ON INFORMATION AND PLEA IN FOUR TO
FIVE DAYS, AS OCCURRED HERE, IS NORMAL IN THE FEDERAL SYSTEM.  I
THEREFORE PUT NO CREDENCE IN THIS CLAIM.  HOWEVER, THE RECORD DOES
INDICATE THAT AT THE INSTANCE OF AN ASSISTANT UNITED STATES ATTORNEY A
SPECIAL AGENT OF THE FEDERAL BUREAU OF INVESTIGATION CALLED UPON THE
TRIAL JUDGE IN HIS CHAMBERS AND TALKED AT SOME LENGTH ABOUT SMITH'S
BACKGROUND AS WELL AS HIS CONNECTION WITH THE KIDNAPING.  THIS WAS
BEFORE SMITH HAD SIGNED ANY WAIVERS OR ENTERED ANY PLEA.  NEITHER SMITH
NOR ANY ONE REPRESENTING HIM WAS PRESENT AT THE INTERVIEW.  THE RECORD
SHOWS THIS CONTACT NOT TO HAVE BEEN COVERTLY MADE, FOR AT THE TIME OF
SENTENCE THE TRIAL JUDGE IN OPEN COURT TOLD SMITH THAT IT HAD
OCCURRED.  I DO NOT REACH THE DUE PROCESS CONTENTION, FOR IT APPEARS TO
ME THAT OUR DUTY OF SUPERVISION OVER THE ADMINISTRATION OF JUSTICE IN
THE FEDERAL COURTS, MCNABB V. UNITED STATES, 318 U.S. 332 (1943),
REQUIRES REVERSAL BECAUSE OF THIS INTERVIEW.  IN A CRIMINAL CASE, SUCH
A PRIVATE CONFERENCE MUST BE DEEMED PRESUMPTIVELY PREJUDICIAL WHERE, IN
VIOLATION OF FED. RULES CRIM. PROC., 32(C)(1), (FN3) IT WAS CONDUCTED
PRIOR TO THE PLEA. 

FOR THESE REASONS I WOULD REVERSE THE JUDGMENT WITH INSTRUCTIONS THAT
SMITH BE ALLOWED TO WITHDRAW HIS GUILTY PLEA AND STAND TRIAL ON THE
INFORMATION. 

FN1  THE COURT SAYS THAT "A DEFENDANT MAY, UNDER APPROPRIATE
CIRCUMSTANCES, INVOKE THE PROTECTION OF THE SIXTH AMENDMENT" WHERE
"ARREST AND INCARCERATION ARE FOLLOWED BY INORDINATE DELAY PRIOR TO
INDICTMENT  ...  ."  SUCH HAS NEVER BEEN THE CASE HERETOFORE WHERE
CAPITAL CASES ARE HELD AWAITING THE STATUTORY MEETING OF THE NEXT GRAND
JURY.  THIS STRANGE DOCTRINE CAN ONLY CAUSE ADDITIONAL CONFUSION IN THE
EFFECTIVE ENFORCEMENT OF THE KIDNAPING STATUTE. 

FN2  THE COURT IN HOLDING THAT PROCEEDING BY INFORMATION "WOULD
DEPRIVE DEFENDANTS OF THE PROTECTION OF A GRAND JURY INDICTMENT AS
REQUIRED BY THE CONSTITUTION AND RULE 7(A)" OVERLOOKS THE FACT THAT
NEITHER THE CONSTITUTION NOR THAT RULE REQUIRES KIDNAPING TO BE CHARGED
BY INDICTMENT WHERE THE VICTIM IS RELEASED UNHARMED. 

FN3  RULE 32(C)(1), FED. RULES CRIM. PROC., PROVIDES: 

"(C)  PRESENTENCE INVESTIGATION: 

"(1)  WHEN MADE.  THE PROBATION SERVICE OF THE COURT SHALL MAKE A
PRESENTENCE INVESTIGATION AND REPORT TO THE COURT BEFORE THE IMPOSITION
OF SENTENCE OR THE GRANTING OF PROBATION UNLESS THE COURT OTHERWISE
DIRECTS.  THE REPORT SHALL NOT BE SUBMITTED TO THE COURT OR ITS
CONTENTS DISCLOSED TO ANYONE UNLESS THE DEFENDANT HAS PLEADED GUILTY OR
HAS BEEN FOUND GUILTY." 
..END :



UNITED STATES V. ATLANTIC REFINING CO. 360 U.S. 19 


NO. 210.  ARGUED APRIL 22, 1959.  - DECIDED JUNE 8, 1959.  - AFFIRMED. 


A SUIT BY THE GOVERNMENT UNDER THE INTERSTATE COMMERCE ACT AND THE
ELKINS ACT AGAINST APPELLEES AND SEVERAL OTHER MAJOR OIL COMPANIES AND
THEIR COMMON CARRIER PIPELINE SUBSIDIARIES, CHARGING THAT THE PIPELINES
WERE GRANTING ILLEGAL TRANSPORTATION REBATES TO THEIR SHIPPER-OWNERS
UNDER THE GUISE OF PAYING DIVIDENDS, WAS SETTLED IN 1941 BY A CONSENT
DECREE WHICH ALLOWED EACH SHIPPER-OWNER TO RECEIVE ONLY A DIVIDEND
EQUAL TO "ITS SHARE OF 7 PERCENTUM (7%) OF THE VALUATION" OF THE COMMON
CARRIER PIPELINE'S PROPERTY.  FROM THEN UNTIL 1957 APPELLEES, WITH THE
ACQUIESCENCE OF THE GOVERNMENT, COMPUTED ALLOWABLE DIVIDENDS BY TAKING
7% OF THE TOTAL VALUATION OF THE PIPELINE'S PROPERTY AND GIVING EACH
OWNER A PROPORTION OF THIS SUM EQUAL TO THE PERCENTAGE OF STOCK IT
OWNED.  IN 1957 THE GOVERNMENT BROUGHT THIS SUIT, CONTENDING THAT,
DESPITE THE LANGUAGE OF THE DECREE, ONLY 7% OF THAT PART OF THE
VALUATION OF A PIPELINE'S PROPERTY WHICH REMAINED AFTER DEDUCTING THE
AMOUNT OWED TO CREDITORS COULD BE PAID AS DIVIDENDS TO STOCKHOLDERS. 
THE TRIAL COURT REJECTED THE GOVERNMENT'S INTERPRETATION.  HELD: THE
JUDGMENT IS AFFIRMED.  PP. 20-24. 

UNITED STATES V. ATLANTIC REFINING CO. ET AL 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE ELKINS ACT, 32 STAT. 847, AS AMENDED, 49 U.S.C. SECS. 41, 43, AND
THE INTERSTATE COMMERCE ACT, 24 STAT. 380, AS AMENDED, 49 U.S.C. SEC.
6(7), MAKE IT UNLAWFUL FOR A COMMON CARRIER TO GRANT REBATES TO
INDIVIDUAL SHIPPERS BY ANY DEVICE WHATSOEVER, OR TO DISCRIMINATE IN
FAVOR OF ANY SHIPPER DIRECTLY OR INDIRECTLY.  IN 1941 THE UNITED STATES
BROUGHT A COMPLAINT AGAINST APPELLEES AND SEVERAL OTHER MAJOR OIL
COMPANIES AND THEIR COMMON CARRIER PIPELINE SUBSIDIARIES CLAIMING THAT
THE PIPELINES WERE GRANTING ILLEGAL TRANSPORTATION REBATES TO THEIR
SHIPPER-OWNERS UNDER THE GUISE OF PAYING DIVIDENDS.  ALTHOUGH THE
GOVERNMENT CHARGED THAT NO DIVIDENDS AT ALL COULD LAWFULLY BE GRANTED
IN THE SAME YEAR IN WHICH A SHIPPER-OWNER SENT PRODUCTS OVER A
PIPELINE, THE SUIT WAS SETTLED IN LATE 1941 BY A CONSENT DECREE
CONTAINING A PROVISION WHICH ALLOWED A SHIPPER-OWNER TO RECEIVE A
DIVIDEND EQUAL TO "ITS SHARE OF 7 PERCENTUM (7%) OF THE VALUATION" OF
THE COMMON CARRIER PIPELINE'S PROPERTY.   ANY DIVIDEND IN EXCESS OF
THIS FIGURE, HOWEVER, WAS FORBIDDEN.  (FN1)  THAT PROVISION OF THE
DECREE IS BEFORE US FOR INTERPRETATION TODAY. 

FROM 1941 TO 1957 APPELLEES COMPUTED ALLOWABLE DIVIDENDS BY TAKING 7%
OF THE VALUATION OF PIPELINE PROPERTY AND THEN GIVING EACH OWNER A
PROPORTION OF THIS SUM EQUAL TO THE PERCENTAGE OF STOCK IT OWNED.  IN
1957, HOWEVER, THE GOVERNMENT BROUGHT THIS SUIT AGAINST APPELLEES
CLAIMING THAT THE PIPELINES WERE GIVING, AND THE SHIPPER-OWNERS WERE
RECEIVING, DIVIDENDS IN EXCESS OF THOSE ALLOWED BY THE DECREE.  THE
GOVERNMENT DID NOT CONTEST THE VALUATION FIGURES USED, BUT ARGUED,
DESPITE THE LANGUAGE OF THE DECREE, THAT ONLY A PART OF 7% OF THE
VALUATION COULD ACTUALLY BE MADE AVAILABLE AS DIVIDENDS TO
STOCKHOLDERS.  THE TOTAL ALLOWABLE "DIVIDENDS," IT CLAIMED, WOULD HAVE
TO BE SHARED BETWEEN STOCKHOLDERS AND CREDITORS.  THE STOCKHOLDER'S
(SHIPPER-OWNER'S) "SHARE" OF THE CARRIER VALUATION, SO THE ARGUMENT
RAN, WAS TO BE THE PROPORTION WHICH STOCK-INVESTMENT IN THE CARRIER
BORE TO THE CARRIER'S TOTAL INVESTED CAPITAL (INCLUDING DEBT OWED TO
THIRD PERSONS).  SEVEN PERCENT STOCK-HOLDER-DIVIDENDS COULD ONLY BE
COMPUTED OUT OF THIS "SHARE" OF THE SUM, AND COULD THEN BE DISTRIBUTED
TO EACH SHIPPER-OWNER IN PROPORTION TO ITS INDIVIDUAL STOCK INTEREST. 
ONLY IN THIS WAY, THE GOVERNMENT CONTENDED, COULD THE CONSENT DECREE'S
AIM OF PREVENTING DISGUISED REBATES BE ACCOMPLISHED.  FOR ONLY IN THIS
WAY WOULD DIVIDENDS BE LIMITED TO A "FAIR" SUM:  7% OF THE CURRENT
VALUE OF WHAT EACH OWNER HAD INVESTED IN ITS SUBSIDIARY.  THE TRIAL
COURT REJECTED THE GOVERNMENT'S INTERPRETATION, AND THE UNITED STATES
BROUGHT A DIRECT APPEAL UNDER 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC.
29, 49 U.S.C. SEC. 45. 

ON CONSIDERATION OF THE LANGUAGE AND THE HISTORY OF THIS DECREE WE
AGREE WITH THE TRIAL COURT.  IF THE DECREE HAD MEANT TO LIMIT DIVIDENDS
TO 7% OF THE CURRENT VALUE OF A PARENT COMPANY'S ACTUAL INVESTMENT IN A
SUBSIDIARY, AS THE GOVERNMENT CLAIMS, ONE CAN HARDLY THINK OF LESS
APPROPRIATE LANGUAGE IN WHICH TO COUCH THE RESTRICTION.  ADMITTEDLY, BY
READING THE WORD "SHARE" TO REFER TO A PROPORTION OF TOTAL
CAPITALIZATION RATHER THAN TO THE PERCENTAGE OF STOCK OWNED BY A PARENT
COMPANY, THE LANGUAGE CAN BE MADE TO SUPPORT THE UNITED STATES'
CONTENTION.  (FN2)  BUT THAT IS SURELY A STRAINED CONSTRUCTION, AND
CANNOT BE RECONCILED WITH THE CONSISTENT READING GIVEN TO THE DECREE,
BY BOTH THE UNITED STATES AND APPELLEES, FROM THE DATE IT WAS ENTERED
UNTIL 1957 - ABOUT 16 YEARS. 

IN 1942, LESS THAN A YEAR AFTER THE DECREE WAS ISSUED, THE UNITED
STATES CONSENTED TO A SUPPLEMENTAL ORDER AFFECTING ONE OF THE PIPELINE
COMPANIES.  THIS ORDER APPROVED A PLAN OF RECAPITALIZATION FOR THE
PIPELINE WHICH WOULD AT LEAST HAVE BEEN HIGHLY SUSPECT UNDER THE
READING THE GOVERNMENT TODAY GIVES THE DECREE.  SIGNIFICANTLY THE
SUPPLEMENTAL ORDER, WHICH WAS AGREED TO BY THE OFFICIAL WHO HAD
REPRESENTED THE GOVERNMENT IN DRAFTING THE ORIGINAL DECREE, EXPRESSLY
STATED THAT THE PLAN DID NOT VIOLATE THAT JUDGMENT. 

THERE ARE ALSO OTHER INDICATIONS THAT THE GOVERNMENT'S INTERPRETATION
OF THE DECREE DID NOT, ORIGINALLY, DIFFER FROM THE ONE APPELLEES URGE
TODAY.  FOR EXAMPLE, THE 1941 DECREE REQUIRED ANNUAL REPORTS FROM EACH
PIPELINE SHOWING TOTAL EARNINGS AVAILABLE TO OWNERS OR STOCKHOLDERS AND
ACTUAL DIVIDENDS PAID.  FOR 16 YEARS THE REPORTS MADE BY THE PIPELINES
INDICATED THAT THE DIVIDENDS WERE NOT COMPUTED ON THE BASIS OF 7% OF
THE CURRENT VALUE OF THE OWNERS' INVESTMENT BUT ON THE TOTAL VALUATION
OF THE CARRIERS' PROPERTIES.  FOR THAT 16 YEARS THE GOVERNMENT ACCEPTED
THIS INTERPRETATION WITHOUT CHALLENGE.  YET TODAY IT RENOUNCES THIS
LONG-STANDING ACQUIESCENCE AND CLAIMS THAT THE DECREE IMPOSED LIMITS IT
HAD NOT PREVIOUSLY SOUGHT TO ENFORCE. 

THE GOVERNMENT CONTENDS THAT THE INTERPRETATION IT NOW OFFERS WOULD
MORE NEARLY EFFECTUATE "THE BASIC PURPOSE OF THE ELKINS AND INTERSTATE
COMMERCE ACTS THAT CARRIERS ARE TO TREAT ALL SHIPPERS ALIKE."  THIS MAY
BE TRUE.  BUT IT DOES NOT WARRANT OUR SUBSTANTIALLY CHANGING THE TERMS
OF A DECREE TO WHICH THE PARTIES CONSENTED WITHOUT ANY ADJUDICATION OF
THE ISSUES.  (FN3)  AND WE AGREE WITH THE DISTRICT COURT THAT ACCEPTING
THE GOVERNMENT'S PRESENT INTERPRETATION WOULD DO JUST THAT.  CF. HUGHES
V. UNITED STATES, 342 U.S. 353. 

WE DO NOT DECIDE THE CASE ON ANY QUESTION OF LACHES OR ESTOPPEL, NOR
DO WE COMMENT ON ANY POSSIBLE MODIFICATIONS OF THE DECREE WHICH MIGHT
APPROPRIATELY BE MADE UNDER CLAUSE X OF THE JUDGMENT, WHICH CONTINUES
THE JURISDICTION OF THE DISTRICT COURT.  WE MERELY HOLD THAT WHERE THE
LANGUAGE OF A CONSENT DECREE IN ITS NORMAL MEANING SUPPORTS AN
INTERPRETATION; WHERE THAT INTERPRETATION HAS BEEN ADHERED TO OVER MANY
YEARS BY ALL THE PARTIES, INCLUDING THOSE GOVERNMENT OFFICIALS WHO DREW
UP AND ADMINISTERED THE DECREE FROM THE START; (FN4) AND WHERE THE
TRIAL COURT CONCLUDES THAT THIS INTERPRETATION IS IN FACT THE ONE THE
PARTIES INTENDED, WE WILL NOT REJECT IT SIMPLY BECAUSE ANOTHER READING
MIGHT SEEM MORE CONSISTENT WITH THE GOVERNMENT'S REASONS FOR ENTERING
INTO THE AGREEMENT IN THE FIRST PLACE.  ACCORDINGLY, THE JUDGMENT BELOW
IS AFFIRMED. 

FN1  THIS CONSENT DECREE IS DISCUSSED IN DETAIL IN HEARINGS,
ANTITRUST SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY, 85TH
CONG., 1ST SESS., PART I. 

FN2  ASSUMING A CARRIER HAS AN I.C.C. "VALUATION" OF $10,000,000,
$2,000,000 OF WHICH REPRESENTS STOCK INVESTMENTS OF $1,000,000 BY EACH
OF TWO SHIPPER OIL COMPANIES, AND $8,000,000 OF WHICH REPRESENTS DEBT
BECAUSE OF MONEY BORROWED BY THE CARRIER FROM OTHERS, ON THE APPELLEE
COMPANIES' INTERPRETATION OF THE DECREE, EACH OF THE TWO SHIPPER-OWNERS
WOULD BE ENTITLED TO "DIVIDENDS" OF ONE-HALF ($1,000,000/$2,000,000) OF
7% OF $10,000,000 OR $350,000.  ON THE GOVERNMENT'S NEW INTERPRETATION
INSTEAD, EACH SHIPPER-OWNER'S "SHARE" WOULD BE ONE-TENTH
($1,000,000/$10,000,000) OF 7% OF $10,000,000 OR $70,000, THIS BEING 7%
OF EACH ONE'S ACTUAL INVESTMENT OF $1,000,000 IN THE COMPANY. 

FN3  THE CONSENT DECREE READS: "ALL PARTIES HERETO (HAVE) SEVERALLY
CONSENTED TO THE ENTRY OF THIS FINAL JUDGMENT HEREIN AND WITHOUT
ADMISSION BY ANY PARTY IN RESPECT OF ANY SUCH ISSUE AND IN FINAL
SETTLEMENT OF ALL CLAIMS HEREIN IN ISSUE  ...  ." 

FN4  CF. FAWCUS MACHINE CO. V. UNITED STATES, 282 U.S. 375, 378;
"CONTEMPORANEOUS CONSTRUCTION BY THOSE CHARGED WITH THE ADMINISTRATION
OF THE ACT  ...  ARE  ...  ENTITLED TO RESPECTFUL CONSIDERATION, AND
WILL NOT BE OVERRULED EXCEPT FOR WEIGHTY REASONS." 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :



LOUISIANA POWER & LIGHT CO. V. CITY OF THIBODAUX 360 U.S. 25 


NO. 398.  ARGUED APRIL 2, 1959.  - DECIDED JUNE 8, 1959.  - 255 F.2D
774, REVERSED. 


THE AUTHORITY OF RESPONDENT CITY OF THIBODAUX TO EXPROPRIATE THE
PROPERTY OF PETITIONER POWER AND LIGHT COMPANY WAS CHALLENGED IN AN
EMINENT DOMAIN PROCEEDING IN THE DISTRICT COURT, WHICH HAD JURISDICTION
BASED ON DIVERSITY OF CITIZENSHIP.  PETITIONER ANSWERED RESPONDENT'S
RELIANCE UPON A LOUISIANA STATUTE BY CITING AN OPINION OF THE LOUISIANA
ATTORNEY GENERAL ADVISING THAT A LOUISIANA CITY WAS WITHOUT POWER TO
EFFECT A SIMILAR EXPROPRIATION.  THE DISTRICT JUDGE, ON HIS OWN MOTION,
ORDERED THAT FURTHER PROCEEDINGS BE STAYED UNTIL THE LOUISIANA SUPREME
COURT HAD BEEN AFFORDED AN OPPORTUNITY TO INTERPRET THE THERETOFORE
JUDICIALLY UNINTERPRETED ACT.  HELD:  THE DISTRICT COURT PROPERLY
EXERCISED THE POWER IT HAD IN THIS CASE TO STAY PROCEEDINGS PENDING A
PROMPT STATE COURT CONSTRUCTION OF A STATE STATUTE OF DUBIOUS MEANING. 
PP. 25-31. 

LOUISIANA POWER & LIGHT CO. V. CITY OF THIBODAUX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CITY OF THIBODAUX, LOUISIANA, FILED A PETITION FOR EXPROPRIATION
IN ONE OF THE LOUISIANA DISTRICT COURTS, ASSERTING A TAKING OF THE
LAND, BUILDINGS, AND EQUIPMENT OF PETITIONER POWER AND LIGHT COMPANY. 
PETITIONER, A FLORIDA CORPORATION, REMOVED THE CASE TO THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ON THE
BASIS OF DIVERSITY OF CITIZENSHIP.  AFTER A PRE-TRIAL CONFERENCE IN
WHICH VARIOUS ASPECTS OF THE CASE WERE DISCUSSED, THE DISTRICT JUDGE,
ON HIS OWN MOTION, ORDERED THAT "FURTHER PROCEEDINGS HEREIN, THEREFORE,
WILL BE STAYED UNTIL THE SUPREME COURT OF LOUISIANA HAS BEEN AFFORDED
AN OPPORTUNITY TO INTERPRET ACT 111 OF 1900," THE AUTHORITY ON WHICH
THE CITY'S EXPROPRIATION ORDER WAS BASED.  153 F. SUPP. 515, 517-518. 
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED, HOLDING THAT THE
PROCEDURE ADOPTED BY THE DISTRICT JUDGE WAS NOT AVAILABLE IN AN
EXPROPRIATION PROCEEDING, AND THAT IN ANY EVENT NO EXCEPTIONAL
CIRCUMSTANCES WERE PRESENT TO JUSTIFY THE PROCEDURE EVEN IF AVAILABLE. 
255 F.2D 774.  WE GRANTED CERTIORARI, 358 U.S. 893, BECAUSE OF THE
IMPORTANCE OF THE QUESTION IN THE JUDICIAL ENFORCEMENT OF THE POWER OF
EMINENT DOMAIN UNDER DIVERSITY JURISDICTION.  (FN1) 

IN CONNECTION WITH THE FIRST DECISION IN WHICH A CLOSELY DIVIDED
COURT CONSIDERED AND UPHELD JURISDICTION OVER AN EMINENT DOMAIN
PROCEEDING REMOVED TO THE FEDERAL COURTS ON THE BASIS OF DIVERSITY OF
CITIZENSHIP, MADISONVILLE TRACTION CO. V. ST. BERNARD MINING CO., 196
U.S. 239, 257, MR. JUSTICE HOLMES MADE THE FOLLOWING OBSERVATION: 

"THE FUNDAMENTAL FACT IS THAT EMINENT DOMAIN IS A PREROGATIVE OF THE
STATE, WHICH ON THE ONE HAND MAY BE EXERCISED IN ANY WAY THAT THE STATE
THINKS FIT, AND ON THE OTHER MAY NOT BE EXERCISED EXCEPT BY AN
AUTHORITY WHICH THE STATE CONFERS." 

WHILE THIS WAS SAID IN THE DISSENTING OPINION, THE DISTINCTION
BETWEEN EXPROPRIATION PROCEEDINGS AND ORDINARY DIVERSITY CASES, THOUGH
FOUND INSUFFICIENT TO RESTRICT DIVERSITY JURISDICTION, REMAINS A
RELEVANT AND IMPORTANT CONSIDERATION IN THE APPROPRIATE JUDICIAL
ADMINISTRATION OF SUCH ACTIONS IN THE FEDERAL COURTS. 

WE HAVE INCREASINGLY RECOGNIZED THE WISDOM OF STAYING ACTIONS IN THE
FEDERAL COURTS PENDING DETERMINATION BY A STATE COURT OF DECISIVE
ISSUES OF STATE LAW.  THUS IN RAILROAD COMM'N V. PULLMAN CO., 312 U.S.
496, 499, IT WAS SAID: 

"HAD WE OR THEY (THE LOWER COURT JUDGES) NO CHOICE IN THE MATTER BUT
TO DECIDE WHAT IS THE LAW OF THE STATE, WE SHOULD HESITATE LONG BEFORE
REJECTING THEIR FORECAST OF TEXAS LAW.  BUT NO MATTER HOW SEASONED THE
JUDGMENT OF THE DISTRICT COURT MAY BE, IT CANNOT ESCAPE BEING A
FORECAST RATHER THAN A DETERMINATION." 

ON THE OTHER HAND, WE HAVE HELD THAT THE MERE DIFFICULTY OF STATE LAW
DOES NOT JUSTIFY A FEDERAL COURT'S RELINQUISHMENT OF JURISDICTION IN
FAVOR OF STATE COURT ACTION.  MEREDITH V. WINTER HAVEN, 320 U.S. 228,
236.  (FN2)  BUT WHERE THE ISSUE TOUCHED UPON THE RELATIONSHIP OF CITY
TO STATE, CHICAGO V. FIELDCREST DAIRIES, INC., 316 U.S. 168, OR
INVOLVED THE SCOPE OF A PREVIOUSLY UNINTERPRETED STATE STATUTE WHICH,
IF APPLICABLE, WAS OF QUESTIONABLE CONSTITUTIONALITY, LEITER MINERALS,
INC., V. UNITED STATES, 352 U.S. 220, 229, WE HAVE REQUIRED DISTRICT
COURTS, AND NOT MERELY SANCTIONED AN EXERCISE OF THEIR DISCRETIONARY
POWER, TO STAY THEIR PROCEEDINGS PENDING THE SUBMISSION OF THE STATE
LAW QUESTION TO STATE DETERMINATION. 

THESE PRIOR CASES HAVE BEEN CASES IN EQUITY, BUT THEY DID NOT APPLY A
TECHNICAL RULE OF EQUITY PROCEDURE.  THEY REFLECT A DEEPER POLICY
DERIVED FROM OUR FEDERALISM.  WE HAVE DRAWN UPON THE JUDICIAL
DISCRETION OF THE CHANCELLOR TO DECLINE JURISDICTION OVER A PART OR ALL
OF A CASE BROUGHT BEFORE HIM.  SEE RAILROAD COMM'N V. PULLMAN CO.,
SUPRA.  ALTHOUGH AN EMINENT DOMAIN PROCEEDING IS DEEMED FOR CERTAIN
PURPOSES OF LEGAL CLASSIFICATION A "SUIT AT COMMON LAW," KOHL V. UNITED
STATES, 91 U.S. 367, 375-376, IT IS OF A SPECIAL AND PECULIAR NATURE. 
MR. JUSTICE HOLMES SET FORTH ONE DIFFERENTIATING CHARACTERISTIC OF
EMINENT DOMAIN:  IT IS INTIMATELY INVOLVED WITH SOVEREIGN PREROGATIVE. 
AND WHEN, AS HERE, A CITY'S POWER TO CONDEMN IS CHALLENGED, A FURTHER
ASPECT OF SOVEREIGNTY IS INTRODUCED.  A DETERMINATION OF THE NATURE AND
EXTENT OF DELEGATION OF THE POWER OF EMINENT DOMAIN CONCERNS THE
APPORTIONMENT OF GOVERNMENTAL POWERS BETWEEN CITY AND STATE.  THE
ISSUES NORMALLY TURN ON LEGISLATION WITH MUCH LOCAL VARIATION
INTERPRETED IN LOCAL SETTINGS.  THE CONSIDERATIONS THAT PREVAILED IN
CONVENTIONAL EQUITY SUITS FOR AVOIDING THE HAZARDS OF SERIOUS
DISRUPTION BY FEDERAL COURTS OF STATE GOVERNMENT OR NEEDLESS FRICTION
BETWEEN STATE AND FEDERAL AUTHORITIES ARE SIMILARLY APPROPRIATE IN A
STATE EMINENT DOMAIN PROCEEDING BROUGHT IN, OR REMOVED TO, A FEDERAL
COURT. 

THE SPECIAL NATURE OF EMINENT DOMAIN JUSTIFIES A DISTRICT JUDGE, WHEN
HIS FAMILIARITY WITH THE PROBLEMS OF LOCAL LAW SO COUNSELS HIM, TO
ASCERTAIN THE MEANING OF A DISPUTED STATE STATUTE FROM THE ONLY
TRIBUNAL EMPOWERED TO SPEAK DEFINITIVELY - THE COURTS OF THE STATE
UNDER WHOSE STATUTE EMINENT DOMAIN IS SOUGHT TO BE EXERCISED - RATHER
THAN HIMSELF MAKE A DUBIOUS AND TENTATIVE FORECAST.  THIS COURSE DOES
NOT CONSTITUTE ABNEGATION OF JUDICIAL DUTY.  ON THE CONTRARY, IT IS A
WISE AND PRODUCTIVE DISCHARGE OF IT.  THERE IS ONLY POSTPONEMENT OF
DECISION FOR ITS BEST FRUITION.  EVENTUALLY THE DISTRICT COURT WILL
AWARD COMPENSATION IF THE TAKING IS SUSTAINED.  IF FOR SOME REASON A
DECLARATORY JUDGMENT IS NOT PROMPTLY SOUGHT FROM THE STATE COURTS AND
OBTAINED WITHIN A REASONABLE TIME, THE DISTRICT COURT, HAVING RETAINED
COMPLETE CONTROL OF THE LITIGATION, WILL DOUBTLESS ASSERT IT TO DECIDE
ALSO THE QUESTION OF THE MEANING OF THE STATE STATUTE.  THE
JUSTIFICATION FOR THIS POWER, TO BE EXERCISED WITHIN THE INDICATED
LIMITS, LIES IN REGARD FOR THE RESPECTIVE COMPETENCE OF THE STATE AND
FEDERAL COURT SYSTEMS AND FOR THE MAINTENANCE OF HARMONIOUS FEDERAL
STATE RELATIONS IN A MATTER CLOSE TO THE POLITICAL INTERESTS OF A
STATE. 

IT WOULD IMPLY AN UNWORTHY CONCEPTION OF THE FEDERAL JUDICIARY TO
GIVE WEIGHT TO THE SUGGESTION THAT ACKNOWLEDGMENT OF THIS POWER WILL
TEMPT SOME OTIOSE OR TIMID JUDGE TO SHUFFLE OFF RESPONSIBILITY.  "SUCH
APPREHENSION IMPLIES A LACK OF DISCIPLINE AND OF DISINTERESTEDNESS ON
THE PART OF THE LOWER COURTS, HARDLY A WORTHY OR WISE BASIS FOR
FASHIONING RULES OF PROCEDURE."  KEROTEST MFG. CO. V. C-O-TWO FIRE
EQUIPMENT CO., 342 U.S. 180, 185.  PROCEDURES FOR EFFECTIVE JUDICIAL
ADMINISTRATION PRESUPPOSE A FEDERAL JUDICIARY COMPOSED OF JUDGES WELL
EQUIPPED AND OF STURDY CHARACTER IN WHOM MAY SAFELY BE VESTED, AS IS
ALREADY, A WIDE RANGE OF JUDICIAL DISCRETION, SUBJECT TO APPROPRIATE
REVIEW ON APPEAL. 

IN LIGHT OF THESE CONSIDERATIONS, THE IMMEDIATE SITUATION QUICKLY
FALLS INTO PLACE.  IN PROVIDING ON HIS OWN MOTION FOR A STAY IN THIS
CASE, AN EXPERIENCED DISTRICT JUDGE WAS RESPONDING IN A SENSIBLE WAY TO
A QUANDARY ABOUT THE POWER OF THE CITY OF THIBODAUX INTO WHICH HE WAS
PLACED BY AN OPINION OF THE ATTORNEY GENERAL OF LOUISIANA IN WHICH IT
WAS CONCLUDED THAT IN A STRIKINGLY SIMILAR CASE A LOUISIANA CITY DID
NOT HAVE THE POWER HERE CLAIMED BY THE CITY.  A LOUISIANA STATUTE
APPARENTLY SEEMS TO GRANT SUCH A POWER.  BUT THAT STATUTE HAS NEVER
BEEN INTERPRETED, IN RESPECT TO A SITUATION LIKE THAT BEFORE THE JUDGE,
BY THE LOUISIANA COURTS AND IT WOULD NOT BE THE FIRST TIME THAT THE
AUTHORITATIVE TRIBUNAL HAS FOUND IN A STATUTE LESS THAN MEETS THE
OUTSIDER'S EYE.  INFORMED LOCAL COURTS MAY FIND MEANING NOT DISCERNIBLE
TO THE OUTSIDER.  THE CONSEQUENCE OF ALLOWING THIS TO COME TO PASS
WOULD BE THAT THIS CASE WOULD BE THE ONLY CASE IN WHICH THE LOUISIANA
STATUTE IS CONSTRUED AS WE WOULD CONSTRUE IT, WHEREAS THE RIGHTS OF ALL
OTHER LITIGANTS WOULD BE THEREAFTER GOVERNED BY A DECISION OF THE
SUPREME COURT OF LOUISIANA QUITE DIFFERENT FROM OURS. 

CAUGHT BETWEEN THE LANGUAGE OF AN OLD BUT UNINTERPRETED STATUTE AND
THE PRONOUNCEMENT OF THE ATTORNEY GENERAL OF LOUISIANA, THE DISTRICT
JUDGE DETERMINED TO SOLVE HIS CONSCIENTIOUS PERPLEXITY BY DIRECTING
UTILIZATION OF THE LEGAL RESOURCES OF LOUISIANA FOR A PROMPT
ASCERTAINMENT OF MEANING THROUGH THE ONLY TRIBUNAL WHOSE INTERPRETATION
COULD BE CONTROLLING - THE SUPREME COURT OF LOUISIANA.  THE DISTRICT
COURT WAS THUS EXERCISING A FAIR AND WELL-CONSIDERED JUDICIAL
DISCRETION IN STAYING PROCEEDINGS PENDING THE INSTITUTION OF A
DECLARATORY JUDGMENT ACTION AND SUBSEQUENT DECISION BY THE SUPREME
COURT OF LOUISIANA. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE STAY ORDER
OF THE DISTRICT COURT REINSTATED.  WE ASSUME THAT BOTH PARTIES WILL
COOPERATE IN TAKING PROMPT AND EFFECTIVE STEPS TO SECURE A DECLARATORY
JUDGMENT UNDER THE LOUISIANA DECLARATORY JUDGMENT ACT, LA.  REV. STAT.,
1950, TIT. 13, SECS. 4231-4246, AND A REVIEW OF THAT JUDGMENT BY THE
SUPREME COURT OF LOUISIANA.  BY RETAINING THE CASE THE DISTRICT COURT,
OF COURSE, RESERVES POWER TO TAKE SUCH STEPS AS MAY BE NECESSARY FOR
THE JUST DISPOSITION OF THE LITIGATION SHOULD ANYTHING PREVENT A PROMPT
STATE COURT DETERMINATION.  REVERSED. 

FN1  IN THE PETITION FOR CERTIORARI THERE WAS ALSO RAISED THE
QUESTION OF THE APPEALABILITY OF THE DISTRICT COURT'S ORDER.  IN OUR
GRANT OF THE WRIT WE ELIMINATED THIS QUESTION BY LIMITING THE SCOPE OF
REVIEW.  358 U.S. 893. 

FN2  THE ISSUE IN MEREDITH V. WINTER HAVEN, 320 U.S. 228, IS, OF
COURSE, DECISIVELY DIFFERENT FROM THE ISSUE NOW BEFORE THE COURT.  HERE
THE ISSUE IS WHETHER AN EXPERIENCED DISTRICT JUDGE, ESPECIALLY
CONVERSANT WITH LOUISIANA LAW, WHO, WHEN TROUBLED WITH THE CONSTRUCTION
WHICH LOUISIANA COURTS MAY GIVE TO A LOUISIANA STATUTE, HIMSELF
INITIATES THE TAKING OF APPROPRIATE MEASURES FOR SECURING CONSTRUCTION
OF THIS DOUBTFUL AND UNSETTLED STATUTE (AND NOT AT ALL IN RESPONSE TO
ANY ALLEGED ATTEMPT BY PETITIONER TO DELAY A DECISION BY THAT JUDGE),
SHOULD BE JURISDICTIONALLY DISABLED FROM SEEKING THE CONTROLLING LIGHT
OF THE LOUISIANA SUPREME COURT.  THE ISSUE IN WINTER HAVEN WAS NOT
THAT.  IT WAS WHETHER JURISDICTION MUST BE SURRENDERED TO THE STATE
COURT.  AT THE VERY OUTSET OF HIS OPINION MR. CHIEF JUSTICE STONE
STATED THIS ISSUE: 

"THE QUESTION IS WHETHER THE CIRCUIT COURT OF APPEALS, ON APPEAL FROM
THE JUDGMENT OF THE DISTRICT COURT, RIGHTLY DECLINED TO EXERCISE ITS
JURISDICTION ON THE GROUND THAT DECISION OF THE CASE ON THE MERITS
TURNED ON QUESTIONS OF FLORIDA CONSTITUTIONAL AND STATUTORY LAW WHICH
THE DECISIONS OF THE FLORIDA COURTS HAD LEFT IN A STATE OF
UNCERTAINTY."  320 U.S., AT 229. 

IN WINTER HAVEN THE COURT OF APPEALS DIRECTED THE ACTION TO BE
DISMISSED.  IN THIS CASE THE COURT OF APPEALS DENIED A CONSCIENTIOUS
EXERCISE BY THE FEDERAL DISTRICT JUDGE OF HIS DISCRETIONARY POWER
MERELY TO STAY DISPOSITION OF A RETAINED CASE UNTIL HE COULD GET
CONTROLLING LIGHT FROM THE STATE COURT. 

MR. JUSTICE STEWART, CONCURRING. 

IN A CONSCIENTIOUS EFFORT TO DO JUSTICE THE DISTRICT COURT DEFERRED
IMMEDIATE ADJUDICATION OF THIS CONTROVERSY PENDING AUTHORITATIVE
CLARIFICATION OF A CONTROLLING STATE STATUTE OF HIGHLY DOUBTFUL
MEANING.  UNDER THE CIRCUMSTANCES PRESENTED, I THINK THE COURSE PURSUED
WAS CLEARLY WITHIN THE DISTRICT COURT'S ALLOWABLE DISCRETION.  FOR THAT
REASON I CONCUR IN THE JUDGMENT. 

THIS CASE IS TOTALLY UNLIKE COUNTY OF ALLEGHENY V. MASHUDA CO.,
DECIDED TODAY, POST, P. 185, EXCEPT FOR THE COINCIDENCE THAT BOTH CASES
INVOLVE EMINENT DOMAIN PROCEEDINGS.  IN MASHUDA THE COURT HOLDS THAT IT
WAS ERROR FOR THE DISTRICT COURT TO DISMISS THE COMPLAINT.  THE COURT
FURTHER HOLDS IN THAT CASE THAT, SINCE THE CONTROLLING STATE LAW IS
CLEAR AND ONLY FACTUAL ISSUES NEED BE RESOLVED, THERE IS NO OCCASION IN
THE INTEREST OF JUSTICE TO REFRAIN FROM PROMPT ADJUDICATION. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

UNTIL TODAY, THE STANDARDS FOR TESTING THIS ORDER OF THE DISTRICT
COURT SENDING THE PARTIES TO THIS DIVERSITY ACTION TO A STATE COURT FOR
DECISION OF A STATE LAW QUESTION MIGHT HAVE BEEN SAID TO HAVE BEEN
REASONABLY CONSISTENT WITH THE IMPERATIVE DUTY OF A DISTRICT COURT,
IMPOSED BY CONGRESS UNDER 28 U.S.C. SECS. 1332 AND 1441, TO RENDER
PROMPT JUSTICE IN CASES BETWEEN CITIZENS OF DIFFERENT STATES.  TO ORDER
THESE SUITORS OUT OF THE FEDERAL COURT AND INTO A STATE COURT IN THE
CIRCUMSTANCES OF THIS CASE PASSES BEYOND DISRESPECT FOR THE DIVERSITY
JURISDICTION TO PLAIN DISREGARD OF THIS IMPERATIVE DUTY.  THE DOCTRINE
OF ABSTENTION, IN PROPER PERSPECTIVE, IS AN EXTRAORDINARY AND NARROW
EXCEPTION TO THIS DUTY, AND ABDICATION OF THE OBLIGATION TO DECIDE
CASES CAN BE JUSTIFIED UNDER THIS DOCTRINE ONLY IN THE EXCEPTIONAL
CIRCUMSTANCES WHERE THE ORDER TO THE PARTIES TO REPAIR TO THE STATE
COURT WOULD CLEARLY SERVE ONE OF TWO IMPORTANT COUNTERVAILING
INTERESTS:  EITHER THE AVOIDANCE OF A PREMATURE AND PERHAPS UNNECESSARY
DECISION OF A SERIOUS FEDERAL CONSTITUTIONAL QUESTION, OR THE AVOIDANCE
OF THE HAZARD OF UNSETTLING SOME DELICATE BALANCE IN THE AREA OF
FEDERAL-STATE RELATIONSHIPS.    THESE EXCEPTIONAL CIRCUMSTANCES
PROVIDED UNTIL NOW A VERY NARROW CORRIDOR THROUGH WHICH A DISTRICT
COURT COULD ESCAPE FROM ITS OBLIGATION TO DECIDE STATE LAW QUESTIONS
WHEN FEDERAL JURISDICTION WAS PROPERLY INVOKED.  THE DOCTRINE OF
ABSTENTION ORIGINATED IN THE AREA OF THE FEDERAL COURTS' DUTY TO AVOID,
IF POSSIBLE, DECISION OF A FEDERAL CONSTITUTIONAL QUESTION.  THIS WAS
RAILROAD COMM'N OF TEXAS V. PULLMAN CO., 312 U.S. 496.  THERE THIS
COURT HELD THAT THE DISTRICT COURT SHOULD HAVE STAYED ITS HAND WHILE
STATE ISSUES WERE RESOLVED IN A STATE COURT WHEN AN INJUNCTION WAS
SOUGHT TO RESTRAIN THE ENFORCEMENT OF THE ORDER OF A STATE
ADMINISTRATIVE BODY ON THE GROUND THAT THE ORDER WAS NOT AUTHORIZED BY
THE STATE LAW AND WAS VIOLATIVE OF THE FEDERAL CONSTITUTION.  THE COURT
REASONED THAT IF THE STATE COURTS HELD THAT THE ORDER WAS NOT
AUTHORIZED UNDER STATE LAW THERE COULD BE AVOIDED "THE FRICTION OF A
PREMATURE CONSTITUTIONAL ADJUDICATION."  312 U.S., AT 500.  NUMEROUS
DECISIONS SINCE THEN HAVE SANCTIONED ABSTENTION FROM DECIDING CASES
INVOLVING A FEDERAL CONSTITUTIONAL ISSUE WHERE A STATE COURT
DETERMINATION OF STATE LAW MIGHT MOOT THE ISSUE OR PUT THE CASE IN A
DIFFERENT POSTURE.  SEE, E.G., CITY OF MERIDIAN V. SOUTHERN BELL TEL. &
TEL. CO., 358 U.S. 639; GOVERNMENT EMPLOYEES ORGANIZING COMM. V.
WINDSOR, 353 U.S. 364; LEITER MINERALS, INC., V. UNITED STATES, 352
U.S. 220; ALBERTSON V. MILLARD, 345 U.S. 242; SHIPMAN V. DUPRE, 339
U.S. 321; STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368; AMERICAN
FEDERATION OF LABOR V. WATSON, 327 U.S. 582; ALABAMA STATE FEDERATION
OF LABOR V. MCADORY, 325 U.S. 450; SPECTOR MOTOR SERVICE, INC., V.
MCLAUGHLIN, 323 U.S. 101; CHICAGO V. FIELDCREST DAIRIES, INC., 316 U.S.
168.  (FN1)  ABSTENTION HAS ALSO BEEN SANCTIONED ON GROUNDS OF COMITY
WITH THE STATES - TO AVOID A RESULT IN "NEEDLESS FRICTION WITH STATE
POLICIES."  RAILROAD COMM'N OF TEXAS V. PULLMAN CO., 312 U.S. 496,
500.  THUS THIS COURT HAS UPHELD AN ABSTENTION WHEN THE EXERCISE BY THE
FEDERAL COURT OF JURISDICTION WOULD DISRUPT A STATE ADMINISTRATIVE
PROCESS, BURFORD V. SUN OIL CO., 319 U.S. 315; PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176, INTERFERE WITH THE COLLECTION OF STATE TAXES,
TOOMER V. WITSELL, 334 U.S. 385, 392; GREAT LAKES DREDGE & DOCK CO. V.
HUFFMAN, 319 U.S. 293, OR OTHERWISE CREATE NEEDLESS FRICTION BY
UNNECESSARILY ENJOINING STATE OFFICIALS FROM EXECUTING DOMESTIC
POLICIES, ALABAMA PUBLIC SERVICE COMM'N V. SOUTHERN R. CO., 341 U.S.
341; HAWKS V. HAMILL, 288 U.S. 52. 

BUT NEITHER OF THE TWO RECOGNIZED SITUATIONS JUSTIFYING ABSTENTION IS
PRESENT IN THE CASE BEFORE US.  THE SUGGESTION THAT FEDERAL
CONSTITUTIONAL QUESTIONS LURK IN THE BACKGROUND IS SO PATENTLY
FRIVOLOUS THAT NEITHER THE DISTRICT COURT, THE COURT OF APPEALS, NOR
THIS COURT CONSIDERS IT TO BE WORTHY OF EVEN PASSING REFERENCE.  THE
POWER AND LIGHT COMPANY'S ONLY CONTENTION UNDER THE FEDERAL
CONSTITUTION IS THAT THE EXPROPRIATION OF ITS PROPERTY WOULD VIOLATE
THE DUE PROCESS AND IMPAIRMENT OF THE OBLIGATION OF CONTRACT CLAUSES,
EVEN THOUGH JUST COMPENSATION IS PAID FOR IT, BECAUSE THE PROPERTY
SOUGHT TO BE TAKEN IS OPERATED BY THE COMPANY UNDER A FRANCHISE GRANTED
BY THE PARISH AND CONFIRMED BY THE CITY.  THIS CLAIM IS UTTERLY WITHOUT
SUBSTANCE.  LONG ISLAND WATER SUPPLY CO. V. BROOKLYN, 166 U.S. 685;
WEST RIVER BRIDGE CO. V. DIX, 6 HOW.  507.  CERTAINLY THE AVOIDANCE OF
SUCH A CONSTITUTIONAL ISSUE CANNOT JUSTIFY A FEDERAL COURT'S FAILURE TO
EXERCISE ITS JURISDICTION.  TO HOLD THE CONTRARY WOULD MEAN THAT A
PARTY COULD DEFEAT HIS ADVERSARY'S RIGHT TO A FEDERAL ADJUDICATION
SIMPLY BY ALLEGING A FRIVOLOUS CONSTITUTIONAL ISSUE.  FURTHERMORE, NO
COUNTERVAILING INTEREST WOULD BE SERVED BY AVOIDING DECISION OF SUCH AN
ISSUE. 

THE COURT THEREFORE TURNS THE HOLDING ON THE PURPORTED EXISTENCE OF
THE OTHER SITUATION JUSTIFYING ABSTENTION, STATING THE BALD CONCLUSION
THAT:  "THE CONSIDERATIONS THAT PREVAILED IN CONVENTIONAL EQUITY SUITS
FOR AVOIDING THE HAZARDS OF SERIOUS DISRUPTION BY FEDERAL COURTS OF
STATE GOVERNMENT OR NEEDLESS FRICTION BETWEEN STATE AND FEDERAL
AUTHORITIES ARE SIMILARLY APPROPRIATE IN A STATE EMINENT DOMAIN
PROCEEDING BROUGHT IN, OR REMOVED TO, A FEDERAL COURT."  BUT THE FACT
OF THE MATTER IS THAT THIS CASE DOES NOT INVOLVE THE SLIGHTEST HAZARD
OF FRICTION WITH A STATE, THE INDISPENSABLE INGREDIENT FOR UPHOLDING
ABSTENTION ON GROUNDS OF COMITY, AND ONE WHICH HAS BEEN PRESENT IN ALL
OF THE PRIOR CASES IN WHICH ABSTENTION HAS BEEN APPROVED BY THIS COURT
ON THAT GROUND.  FIRST OF ALL, UNLIKE ALL PRIOR CASES IN WHICH
ABSTENTION HAS BEEN SANCTIONED ON GROUNDS OF COMITY, THE DISTRICT COURT
HAS NOT BEEN ASKED TO GRANT INJUNCTIVE RELIEF WHICH WOULD PROHIBIT
STATE OFFICIALS FROM ACTING.  THIS CASE INVOLVES AN ACTION AT LAW,
(FN2) INITIATED BY THE CITY AND REMOVED TO THE DISTRICT COURT UNDER 28
U.S.C. SEC. 1441.  CLEARLY DECISION OF THIS CASE, IN WHICH THE CITY
ITSELF IS THE PARTY SEEKING AN INTERPRETATION OF ITS AUTHORITY UNDER
STATE LAW, WILL NOT ENTAIL THE FRICTION IN FEDERAL-STATE RELATIONS THAT
WOULD RESULT FROM DECISION OF A SUIT BROUGHT BY ANOTHER PARTY TO ENJOIN
THE CITY FROM ACTING.  SECONDLY, THIS CASE DOES NOT INVOLVE THE
POTENTIAL FRICTION THAT RESULTS WHEN A FEDERAL COURT APPLIES PARAMOUNT
FEDERAL LAW TO STRIKE DOWN STATE ACTION.  ASIDE FROM THE PATENTLY
FRIVOLOUS CONSTITUTIONAL QUESTION RAISED BY THE POWER COMPANY, THE
DISTRICT COURT IN ADJUDICATING THIS CASE WOULD BE APPLYING STATE LAW
PRECISELY AS WOULD A STATE COURT.  FAR FROM DISRUPTING STATE POLICY,
THE DISTRICT COURT WOULD BE APPLYING STATE POLICY, AS EMBODIED IN THE
STATE STATUTE, TO THE FACTS OF THIS CASE.  THERE IS NO MORE POSSIBILITY
OF CONFLICT WITH THE STATE IN THIS SITUATION THAN THERE IS IN THE
ORDINARY NEGLIGENCE OR CONTRACT CASE IN WHICH A DISTRICT COURT APPLIES
STATE LAW UNDER ITS DIVERSITY JURISDICTION.  A DECISION BY THE DISTRICT
COURT IN THIS CASE WOULD NOT INTERFERE WITH LOUISIANA ADMINISTRATIVE
PROCESSES, PROHIBIT THE COLLECTION OF STATE TAXES, OR OTHERWISE
FRUSTRATE THE EXECUTION OF STATE DOMESTIC POLICIES.  QUITE THE REVERSE,
THIS ACTION IS PART OF THE PROCESS WHICH THE CITY MUST FOLLOW IN ORDER
TO CARRY OUT THE STATE'S POLICY OF EXPROPRIATING PRIVATE PROPERTY FOR
PUBLIC USES.  FINALLY, IN THIS CASE THE STATE OF LOUISIANA, REPRESENTED
BY ITS CONSTITUENT ORGAN THE CITY OF THIBODAUX, URGES THE DISTRICT
COURT TO ADJUDICATE THE STATE LAW ISSUE.  HOW, CONCEIVABLY, CAN THE
COURT JUSTIFY THE ABDICATION OF RESPONSIBILITY TO EXERCISE JURISDICTION
ON THE GROUND OF AVOIDING INTERFERENCE AND CONFLICT WITH THE STATE WHEN
THE STATE ITSELF DESIRES THE FEDERAL COURT'S ADJUDICATION?  IT IS
OBVIOUS THAT THE ABSTENTION IN THIS CASE WAS FOR THE CONVENIENCE OF THE
DISTRICT COURT, NOT FOR THE STATE.  THE COURT FORGETS, IN UPHOLDING
THIS ABSTENTION, THAT "THE DIVERSITY JURISDICTION WAS NOT CONFERRED FOR
THE BENEFIT OF THE FEDERAL COURTS OR TO SERVE THEIR CONVENIENCE." 
MEREDITH V. WINTER HAVEN, 320 U.S. 228, 234. 

THE COURT OF APPEALS, IN MY VIEW, CORRECTLY CONSIDERED, IN REVERSING
THE ACTION OF THE DISTRICT COURT, THAT THERE IS NOT SHOWN A SEMBLANCE
OF A COUNTERVAILING INTEREST WHICH MEETS THE STANDARDS PERMITTING
ABSTENTION.  THE STANDARD UTILIZED BY THE COURT OF APPEALS IN REVIEWING
THE DISTRICT COURT'S ORDER WAS NOT WHETHER THE DISTRICT JUDGE ABUSED
HIS DISCRETION IN STAYING THE PROCEEDINGS; RATHER IT WAS WHETHER HE HAD
ANY DISCRETION TO ABSTAIN FROM DECIDING THIS CASE IN WHICH THE FEDERAL
COURT'S JURISDICTION WAS PROPERLY INVOKED.  THIS APPROACH WAS CORRECT
IN LIGHT OF THE TEACHING OF ALL PRIOR CASES, WHICH DELIMIT THE NARROW
AREA IN WHICH ABSTENTION IS PERMISSIBLE AND HOLD THAT JURISDICTION MUST
BE EXERCISED IN ALL OTHER SITUATIONS.  IT WOULD OBVIOUSLY WREAK HAVOC
WITH FEDERAL JURISDICTION IF THE EXERCISE OF THAT JURISDICTION WAS A
MATTER FOR THE AD HOC DISCRETION OF THE DISTRICT COURT IN EACH
PARTICULAR CASE. 

DESPITE THE COMPLETE ABSENCE OF THE NECESSARY SHOWING TO JUSTIFY
ABSTENTION, THE COURT SUPPORTS ITS HOLDING SIMPLY BY A REFERENCE TO A
DISSENTING OPINION IN WHICH IT WAS SAID "THAT EMINENT DOMAIN IS A
PREROGATIVE OF THE STATE."  (FN3)  THUS THE COURT ATTEMPTS TO CARVE OUT
A NEW AREA IN WHICH, EVEN THOUGH AN ADJUDICATION BY THE FEDERAL COURT
WOULD NOT REQUIRE THE DECISION OF FEDERAL CONSTITUTIONAL QUESTIONS, NOR
CREATE FRICTION WITH THE STATE, THE FEDERAL COURTS ARE ENCOURAGED TO
ABNEGATE THEIR RESPONSIBILITIES IN DIVERSITY CASES.  IN DOING SO THE
COURT VERY PLAINLY HAS NOT MADE A RESPONSIBLE USE OF PRECEDENT.  FIRST
OF ALL, NOT ONLY DOES THE COURT CITE NO CASES WHERE ABSTENTION HAS BEEN
APPROVED IN THE ABSENCE OF A SHOWING OF ONE OF THE ONLY TWO
COUNTERVAILING INTERESTS HERETOFORE REQUIRED TO JUSTIFY ABSTENTION, BUT
THE COURT IGNORES CASES IN WHICH THIS COURT HAS REFUSED TO REFER STATE
LAW QUESTIONS TO STATE COURTS EVEN THOUGH THAT COURSE REQUIRED A
FEDERAL CONSTITUTIONAL DECISION WHICH RESULTED IN AFFIRMATIVE
PROHIBITIONS AGAINST THE STATE FROM CARRYING OUT SOVEREIGN ACTIVITIES. 
SURELY EMINENT DOMAIN IS NO MORE MYSTICALLY INVOLVED WITH "SOVEREIGN
PREROGATIVE" THAN A CITY'S POWER TO LICENSE MOTOR VEHICLES, CHICAGO V.
ATCHISON, T.&S.F.R. CO., 357 U.S. 77, A STATE'S POWER TO REGULATE
FISHING IN ITS WATERS, TOOMER V. WITSELL, 334 U.S. 385, ITS POWER TO
REGULATE INTRASTATE TRUCKING RATES, PUBLIC UTILITIES COMM'N OF
CALIFORNIA V. UNITED STATES, 355 U.S. 534, AND A HOST OF OTHER
GOVERMENTAL ACTIVITIES CARRIED ON BY THE STATES AND THEIR SUBDIVISIONS
WHICH HAVE BEEN BROUGHT INTO QUESTION IN THE FEDERAL DISTRICT COURTS
WITHOUT A PRIOR STATE COURT DETERMINATION OF THE RELEVANT STATE LAW. 
FURTHERMORE, THE DECISION IN MEREDITH V. WINTER HAVEN, 320 U.S. 228,
LONG RECOGNIZED AS A LANDMARK IN THIS FIELD, IS SQUARELY CONTRARY TO
TODAY'S HOLDING.  FOR THERE THE PETITIONERS SOUGHT IN A FEDERAL
DISTRICT COURT AN INJUNCTION PROHIBITING THE CITY OF WINTER HAVEN FROM
REDEEMING CERTAIN BONDS WITHOUT PAYING DEFERRED INTEREST CHARGES ON
THEM.  THE ONLY ISSUES IN THE CASE WERE WHETHER THE CITY WAS AUTHORIZED
UNDER THE FLORIDA CONSTITUTION AND STATUTES TO ISSUE THE BONDS WITHOUT
A REFERENDUM, AND, IF THE BONDS WERE NOT VALIDLY ISSUED, WHAT RECOVERY
THE BOUNDHOLDERS WERE ENTITLED TO RECEIVE.  FEDERAL JURISDICTION WAS
BASED SOLELY ON DIVERSITY OF CITIZENSHIP.  ALTHOUGH THERE WAS PRESENT
THE OBVIOUS IRRITANT TO STATE-FEDERAL RELATIONS OF A FEDERAL COURT
INJUNCTION AGAINST CITY OFFICIALS, WHICH IS NOT PRESENT IN THIS CASE,
THIS COURT IN WINTER HAVEN HELD THAT IT WAS INCUMBENT ON THE FEDERAL
DISTRICT COURT TO PERFORM ITS DUTY AND ADJUDICATE THE CASE.  I AM
UNABLE TO SEE A DISTINCTION, SO FAR AS CONCERNS NONINTERFERENCE WITH
THE EXERCISE OF STATE SOVEREIGNTY, BETWEEN DECISION AS TO THE CITY OF
WINTER HAVEN'S AUTHORITY UNDER FLORIDA'S STATUTES AND CONSTITUTION TO
ISSUE DEFERRED-INTEREST BONDS WITHOUT A REFERENDUM, AND DECISION AS TO
THE CITY OF THIBODAUX'S AUTHORITY UNDER LOUISIANA'S STATUTES AND
CONSTITUTION TO EXPROPRIATE THE POWER AND LIGHT COMPANY'S PROPERTY. 
SINCE THE COURT SUGGESTS NO ADEQUATE BASIS OF DISTINCTION BETWEEN THE
TWO CASES, IT SHOULD FRANKLY ANNOUNCE THAT MEREDITH V. WINTER HAVEN IS
OVERRULED, FOR NO OTHER CONCLUSION IS REASONABLE.  (FN4) 

IN THE SECOND PLACE, THE COURT, IN ITS OPINION, OMITS MENTION OF THE
HOST OF CASES, MANY IN THIS COURT, WHICH HAVE APPROVED THE DECISION BY
A FEDERAL COURT OF PRECISELY THE SAME KIND OF STATE EMINENT DOMAIN
QUESTION WHICH THE DISTRICT COURT WAS ASKED BY THE CITY OF THIBODAUX TO
DECIDE IN THIS CASE.  YEARS OF EXPERIENCE IN FEDERAL COURT ADJUDICATION
OF STATE EMINENT DOMAIN CASES HAVE CONCLUSIVELY DEMONSTRATED THAT THIS
PRACTICE DOES NOT ENTAIL THE HAZARD OF FRICTION IN FEDERAL-STATE
RELATIONS.  SEE COUNTY OF ALLEGHENY V. MASHUDA CO., POST, P. 185.  THE
COURT, DESPITE THE LESSON TAUGHT BY THIS EXPERIENCE AND DESPITE THE
FACT THAT IT IS IMPOSSIBLE TO SHOW ANY ACTUAL FRICTION THAT MIGHT
DEVELOP FROM A FEDERAL COURT ADJUDICATION IN THIS CASE, RESTS ITS
HOLDING ON A CONCLUSIVE PRESUMPTION THAT FRICTION WILL DEVELOP BECAUSE
OF "THE SPECIAL NATURE OF EMINENT DOMAIN."  THIS PRESUMPTION IS TOTALLY
AT WAR WITH THE COURT'S HOLDING TODAY IN COUNTY OF ALLEGHENY V. MASHUDA
CO., WHICH ORDERS A DISTRICT COURT TO EXERCISE ITS DIVERSITY
JURISDICTION EVEN THOUGH SUCH A COURSE WILL REQUIRE DECISION AS TO THE
POWER OF A COUNTY UNDER THE STATE LAW OF EMINENT DOMAIN TO EXPROPRIATE
CERTAIN PROPERTY.  THUS THE COURT'S DECISION IS EXPLICABLE TO ME FOR
TWO OTHER REASONS, NEITHER OF WHICH IS ARTICULATED IN THE COURT'S
OPINION, PROBABLY BECAUSE BOTH ARE WHOLLY UNTENABLE. 

THE FIRST IS THAT THE ONLY REAL ISSUE OF LAW IN THE CASE, THE
INTERPRETATION OF ACT 111, PRESENTS A DIFFICULT QUESTION OF STATE LAW. 
IT IS TRUE THAT THERE ARE NO LOUISIANA DECISIONS INTERPRETING ACT 111,
AND THAT THERE IS A CONFUSING OPINION OF THE STATE'S ATTORNEY GENERAL
ON THE QUESTION.  BUT MERE DIFFICULTY OF CONSTRUING THE STATE STATUTE
IS NOT JUSTIFICATION FOR RUNNING AWAY FROM THE TASK.   "QUESTIONS MAY
OCCUR WHICH WE WOULD GLADLY AVOID; BUT WE CANNOT AVOID THEM.  ALL WE
CAN DO IS, TO EXERCISE OUR BEST JUDGMENT, AND CONSCIENTIOUSLY TO
PERFORM OUR DUTY."  COHENS V. VIRGINIA, 6 WHEAT.  264, 404.  DIFFICULT
QUESTIONS OF STATE LAW TO WHICH THE FEDERAL COURTS CANNOT GIVE
DEFINITIVE ANSWERS ARISE EVERY DAY IN FEDERAL COURTS THROUGHOUT THE
LAND.  CHIEF JUSTICE STONE, IN HIS OPINION FOR THE COURT IN MEREDITH V.
WINTER HAVEN, 320 U.S. 228, SETTLED THAT THIS DIFFICULTY CAN NEVER
JUSTIFY A FAILURE TO EXERCISE JURISDICTION.  THE CHIEF JUSTICE SAID: 

"BUT WE ARE OF OPINION THAT THE DIFFICULTIES OF ASCERTAINING WHAT THE
STATE COURTS MAY HEREAFTER DETERMINE THE STATE LAW TO BE DO NOT IN
THEMSELVES AFFORD A SUFFICIENT GROUND FOR A FEDERAL COURT TO DECLINE TO
EXERCISE ITS JURISDICTION TO DECIDE A CASE WHICH IS PROPERLY BROUGHT TO
IT FOR DECISION.    "THE DIVERSITY JURISDICTION WAS NOT CONFERRED FOR
THE BENEFIT OF THE FEDERAL COURTS OR TO SERVE THEIR CONVENIENCE.  ITS
PURPOSE WAS GENERALLY TO AFFORD TO SUITORS AN OPPORTUNITY IN SUCH
CASES, AT THEIR OPTION, TO ASSERT THEIR RIGHTS IN THE FEDERAL RATHER
THAN IN THE STATE COURTS.  IN THE ABSENCE OF SOME RECOGNIZED PUBLIC
POLICY OR DEFINED PRINCIPLE GUIDING THE EXERCISE OF THE JURISDICTION
CONFERRED, WHICH WOULD IN EXCEPTIONAL CASES WARRANT ITS NON-EXERCISE,
IT HAS FROM THE FIRST BEEN DEEMED TO BE THE DUTY OF THE FEDERAL COURTS,
IF THEIR JURISDICTION IS PROPERLY INVOKED, TO DECIDE QUESTIONS OF STATE
LAW WHENEVER NECESSARY TO THE RENDITION OF A JUDGMENT  ...  .  WHEN
SUCH EXCEPTIONAL CIRCUMSTANCES ARE NOT PRESENT, DENIAL OF THAT
OPPORTUNITY BY THE FEDERAL COURTS MERELY BECAUSE THE ANSWERS TO THE
QUESTIONS OF STATE LAW ARE DIFFICULT OR UNCERTAIN OR HAVE NOT YET BEEN
GIVEN BY THE HIGHEST COURT OF THE STATE, WOULD THWART THE PURPOSE OF
THE JURISDICTIONAL ACT."  320 U.S., AT 234-235. 

THE CASES ARE LEGION, SINCE ERIE R. CO. V. TOMPKINS, 304 U.S. 64, IN
WHICH THE FEDERAL COURTS HAVE ADJUDICATED DIVERSITY CASES BY DECIDING
ISSUES OF STATE LAW, DIFFICULT AND EASY, WITHOUT RELEVANT STATE COURT
DECISIONS ON THE POINT IN ISSUE.  AND THIS COURT HAS MANY TIMES, OFTEN
OVER DISSENTS URGING ABSTENTION, DECIDED DOUBTFUL QUESTIONS OF STATE
LAW WHEN PROPERLY BEFORE US.  PROPPER V. CLARK, 337 U.S. 472;
COMMISSIONER V. ESTATE OF CHURCH, 335 U.S. 632; ESTATE OF SPIEGEL V.
COMMISSIONER, 335 U.S. 701; WILLIAMS V. GREEN BAY & WESTERN R. CO., 326
U.S. 549, 553-554; MARKHAM V. ALLEN, 326 U.S. 490; RISTY V. CHICAGO,
R.I.&P.R. CO., 270 U.S. 378; MCCLELLAN V. CARLAND, 217 U.S. 268. 

THE SECOND POSSIBLE REASON EXPLAINING THE COURT'S HOLDING IS THAT IT
REFLECTS A DISTASTE FOR THE DIVERSITY JURISDICTION.  BUT DISTASTE FOR
DIVERSITY JURISDICTION CERTAINLY CANNOT BE REASON TO LICENSE DISTRICT
JUDGES TO RETREAT FROM THEIR RESPONSIBILITY.  THE ROOTS OF THAT
JURISDICTION ARE INEXTRICABLY INTERTWINED WITH THE ROOTS OF OUR FEDERAL
SYSTEM.  THEY STEM FROM ART. III, SEC. 2 OF THE CONSTITUTION AND THE
FIRST JUDICIARY ACT, THE ACT OF 1789, 1 STAT. 73, 78.  (FN5)  I CONCEDE
THE LIVELINESS OF THE CONTROVERSY OVER THE UTILITY OR DESIRABILITY OF
DIVERSITY JURISDICTION, BUT IT HAS STUBBORNLY OUTLASTED THE MANY AND
PERSISTENT ATTACKS AGAINST IT AND THE ATTEMPTS IN THE CONGRESS TO
CURTAIL OR ELIMINATE IT.  (FN6)  UNTIL CONGRESS SPEAKS OTHERWISE, THE
FEDERAL JUDICIARY HAS NO CHOICE BUT CONSCIENTIOUSLY TO RENDER JUSTICE
FOR LITIGANTS FROM DIFFERENT STATES ENTITLED TO HAVE THEIR
CONTROVERSIES ADJUDICATED IN THE FEDERAL COURTS.  "WHETHER IT IS A
SOUND THEORY, WHETHER DIVERSITY JURISDICTION IS NECESSARY OR DESIRABLE
IN ORDER TO AVOID POSSIBLE UNFAIRNESS BY STATE COURTS, STATE JUDGES AND
JURIES, AGAINST OUTSIDERS, WHETHER THE FEDERAL COURTS OUGHT TO BE
RELIEVED OF THE BURDEN OF DIVERSITY LITIGATION, - THESE ARE MATTERS
WHICH ARE NOT MY CONCERN AS A JUDGE.  THEY ARE THE CONCERN OF THOSE
WHOSE BUSINESS IT IS TO LEGISLATE, NOT MINE."  BURFORD V. SUN OIL CO.,
319 U.S. 315, 337 (DISSENTING OPINION). 

NOT ONLY HAS THE COURT DEPARTED FROM ANY PRECEDENTIAL BASIS FOR ITS
ACTION, BUT THE DECISION ENCOURAGES INEFFICIENCY IN ADMINISTRATION OF
THE FEDERAL COURTS AND LEADS TO UNNECESSARY DELAY, WASTE AND ADDED
EXPENSE FOR THE PARTIES.  THIS IS PARTICULARLY THE STARK TRUTH IN THE
INSTANT CASE.  THE CITY OF THIBODAUX BROUGHT THIS PROCEEDING IN A
LOUISIANA COURT TO EXPROPRIATE LANDS OF THE POWER AND LIGHT COMPANY FOR
PUBLIC PURPOSES.  THE POWER AND LIGHT COMPANY, A FLORIDA CORPORATION,
REMOVED THE ACTION TO THE DISTRICT COURT, AS WAS ITS PRIVILEGE UNDER 28
U.S.C. SEC. 1441.  THE CRUCIAL ISSUE IN THIS CASE IS WHETHER LOUISIANA
ACT 111 OF 1900 EMPOWERS THE CITY TO EXERCISE THE STATE'S RIGHT OF
EMINENT DOMAIN.  (FN7)  BECAUSE THE DISTRICT COURT REBUFFED THE CITY'S
PLEA TO DECIDE ITS AUTHORITY UNDER ACT 111, AND THIS COURT SUSTAINS THE
DISTRICT COURT, THE CITY MUST GO BACK TO THE STATE COURT, NOT IN THE
ACTION ORIGINALLY BROUGHT THERE BY THE CITY, BUT IN A NEW ACTION TO BE
INITIATED UNDER LOUISIANA'S DECLARATORY JUDGMENT LAW.  THE POWER AND
LIGHT COMPANY, WHICH ESCAPED A STATE COURT DECISION BY REMOVING THE
CITY'S ACTION TO THE DISTRICT COURT, IS NOW WHOLLY CONTENT WITH THE SUA
SPONTE ACTION OF THE DISTRICT COURT.  THIS IS UNDERSTANDABLE SINCE THE
LONGER DECISION IS PUT OFF AS TO THE CITY'S POWER TO EXPROPRIATE ITS
PROPERTY, THE LONGER THE POWER AND LIGHT COMPANY WILL ENJOY THE
POSSESSION OF IT.  RESOLUTION OF THE LEGAL QUESTION OF THE CITY'S
AUTHORITY, ALREADY DELAYED OVER TWO YEARS DUE TO NO FAULT OF THE CITY,
WILL BE DELAYED, ACCORDING TO THE CITY'S ESTIMATE IN ITS BRIEF, A
MINIMUM OF TWO ADDITIONAL YEARS BEFORE A DECISION MAY BE OBTAINED FROM
THE STATE SUPREME COURT IN THE DECLARATORY JUDGMENT ACTION.  EVEN IF
THE CITY OBTAINS A FAVORABLE DECISION, THE CITY MUST SUFFER STILL
FURTHER DELAY WHILE THE CASE COMES BACK TO THE DISTRICT COURT FOR A
DECISION UPON THE AMOUNT OF DAMAGES TO BE PAID THE POWER AND LIGHT
COMPANY.  THUS AT BEST THE DISTRICT COURT WILL FINALLY DISPOSE OF THIS
CASE ONLY AFTER PROLONGED DELAY AND CONSIDERABLE ADDITIONAL EXPENSE FOR
THE PARTIES.  MOREOVER, IT IS POSSIBLE THAT THE STATE SUPREME COURT
WILL, FOR ONE REASON OR ANOTHER, CONCLUDE THAT IT WILL NOT RENDER THE
PARTIES THIS ADVISORY OPINION.  ALL OF THIS DELAY SHOULD HAVE BEEN
AVOIDED, AND WOULD HAVE BEEN, HAD THE DISTRICT COURT PERFORMED WHAT I
THINK WAS ITS PLAIN DUTY, AND DECIDED THE QUESTION OF THE CITY'S POWER
WHEN THAT QUESTION WAS RIPE FOR DECISION A FEW MONTHS AFTER THE CASE
WAS REMOVED TO THE DISTRICT COURT.  I THINK IT IS MORE THAN COINCIDENCE
THAT BOTH IN THIS CASE AND IN MASHUDA THE PARTY SUPPORTING ABSTENTION
IS THE ONE PRESENTLY IN POSSESSION OF THE PROPERTY IN QUESTION.  I
CANNOT ESCAPE THE CONCLUSION IN THESE CASES THAT DELAY IN THE REACHING
OF A DECISION IS MORE IMPORTANT TO THOSE PARTIES THAN THE TRIBUNAL
WHICH ULTIMATELY RENDERS THE DECISION.  THE COURT TODAY UPHOLDS A
PROCEDURE WHICH ENCOURAGES SUCH DELAY AND PREVENTS "THAT PROMPTNESS OF
DECISION WHICH IN ALL JUDICIAL ACTIONS IS ONE OF THE ELEMENTS OF
JUSTICE."  FORSYTH V. HAMMOND, 166 U.S. 506, 513.  ONE MUST REGRET THAT
THIS COURT'S DEPARTURE FROM THE LONG-SETTLED CRITERIA GOVERNING
ABSTENTION SHOULD SO RICHLY FERTILIZE THE POWER AND LIGHT COMPANY'S
STRATEGY OF DELAY WHICH NOW HAS SUCCEEDED, I DARE SAY, PAST THE FONDEST
EXPECTATION OF COUNSEL WHO CONCEIVED IT.  IT IS ESPECIALLY UNFORTUNATE
IN THAT DEPARTURE FROM THESE CRITERIA FASHIONS AN OPENING WEDGE FOR
DISTRICT COURTS TO REFER HARD CASES OF STATE LAW TO STATE COURTS IN
EVEN THE ROUTINE DIVERSITY NEGLIGENCE AND CONTRACT ACTIONS. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  BUT WHEN QUESTIONS OF STATE LAW ARE NOT CLOUDY THE DISTRICT
COURT SHOULD DECIDE THEM, EVEN THOUGH SUCH A COURSE NECESSITATES
DECISION OF A FEDERAL CONSTITUTIONAL ISSUE.  CHICAGO V. ATCHISON,
T.&S.F.R. CO., 357 U.S. 77; PUBLIC UTILITIES COMM'N OF CALIFORNIA V.
UNITED STATES, 355 U.S. 534; TOOMER V. WITSELL, 334 U.S. 385. 

FN2  EXPROPRIATION PROCEEDINGS SUCH AS THIS ONE ARE RECOGNIZED TO BE
SUITS AT LAW.  KOHL V. UNITED STATES, 91 U.S. 367, 376. 

FN3  MADISONVILLE TRACTION CO. V. ST. BERNARD MINING CO., 196 U.S.
239, 257.  THE DISTRICT COURT DID NOT REST ITS ACTIONS ON THIS THEORY,
BUT RELIED UPON LEITER MINERALS, INC., V. UNITED STATES, 352 U.S. 220,
AS AUTHORITY FOR THE STAY ORDER.  THAT DECISION, WHICH CAME DOWN
SHORTLY BEFORE THE DISTRICT COURT'S ORDER IN THIS CASE, MODIFIED AN
ORDER OF THE SAME DISTRICT JUDGE AND PROVIDED FOR A REFERENCE TO THE
LOUISIANA COURTS OF A QUESTION OF LOUISIANA LAW BECAUSE THE STATE
COURT'S INTERPRETATION OF STATE LAW MIGHT WELL HAVE MOOTED A FEDERAL
CONSTITUTIONAL ISSUE OR CAST IT IN A DIFFERENT POSTURE.  THE SIMPLE
FACT THAT THERE IS NO CONSTITUTIONAL QUESTION OF ANY SUBSTANCE TO AVOID
IN THIS CASE MAKES LEITER INAPPOSITE. 

FN4  IT IS TRUE THAT THIS COURT IN MEREDITH V. WINTER HAVEN WAS
REVIEWING AN ORDER DISMISSING FEDERAL JURISDICTION, WHEREAS THE
DISTRICT COURT ORDER IN THIS CASE RETAINS JURISDICTION PENDING THE
STATE COURT DETERMINATION.  HOWEVER, IT IS SIGNIFICANT THAT THE COURT
IN WINTER HAVEN, RATHER THAN REMANDING THE CASE WITH INSTRUCTIONS THAT
THE DISTRICT COURT RETAIN JURISDICTION BUT ABSTAIN FROM DECIDING THE
STATE LAW ISSUES, ORDERED THE DISTRICT COURT TO ADJUDICATE THOSE
ISSUES.  IT IS PERFECTLY CLEAR THAT WINTER HAVEN DID NOT TURN ON ANY
DIFFERENCE BETWEEN AN ABSTENTION AND A DISMISSAL, NOR ON THE FACT THAT
IT WAS A COURT OF APPEALS RATHER THAN A DISTRICT COURT WHICH INITIALLY
DECIDED TO REFRAIN FROM ADJUDICATING THE STATE ISSUES.  NEITHER DID IT
TURN ON THIS COURT'S IDEAS ABOUT THE COMPETENCE OR EXPERIENCE OF THE
JUDGES BELOW.  MEREDITH V. WINTER HAVEN RESTED SQUARELY ON THE COURT'S
CONCLUSION THAT, NO MATTER HOW INTIMATELY RELATED TO A STATE'S
SOVEREIGNTY A CASE IS, THE DISTRICT COURT MUST ADJUDICATE IT IF
JURISDICTION IS PROPERLY INVOKED AND THAT ADJUDICATION WOULD NOT ENTAIL
DECISION OF A SERIOUS CONSTITUTIONAL QUESTION OR DISRUPTION OF STATE
POLICY. 

FN5  SEE, FOR A DISCUSSION OF THIS SUBJECT, FRIENDLY, THE HISTORIC
BASIS OF DIVERSITY JURISDICTION, 41 HARV. L. REV. 483; YNTEMA AND
JAFFIN, PRELIMINARY ANALYSIS OF CONCURRENT JURISDICTION, 79 U. OF PA.
L. REV. 869, 873-876; FRANK, HISTORICAL BASIS OF THE FEDERAL JUDICIAL
SYSTEM, 13 LAW & CONTEMP.  PROB.  3, 22-28. 

FN6  SEE BURFORD V. SUN OIL CO., 319 U.S. 315, 337-338 (DISSENTING
OPINION); HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM,
893-894. 

FN7  THE ACT, NOW SEC. 101 OF PART III OF TITLE 19 OF THE LOUISIANA
REVISED STATUTES OF 1950, PROVIDES IN PERTINENT PART: 

"ANY MUNICIPAL CORPORATION OF LOUISIANA MAY EXPROPRIATE ANY ELECTRIC
LIGHT, GAS, OR WATERWORKS PLANT OR PROPERTY WHENEVER SUCH A COURSE IS
THOUGHT NECESSARY FOR THE PUBLIC INTEREST BY THE MAYOR AND COUNCIL OF
THE MUNICIPALITY.  WHEN THE MUNICIPAL COUNCIL CANNOT AGREE WITH THE
OWNER THEREOF FOR ITS PURCHASE, THE MUNICIPAL CORPORATION THROUGH THE
PROPER OFFICERS MAY PETITION THE JUDGE OF THE DISTRICT COURT IN WHICH
THE PROPERTY IS SITUATED, DESCRIBING THE PROPERTY NECESSARY FOR THE
MUNICIPAL PURPOSE, WITH A DETAILED STATEMENT OF THE BUILDINGS,
MACHINERY, APPURTENANCES, FIXTURES, IMPROVEMENTS, MAINS, PIPES, SEWERS,
WIRES, LIGHTS, POLES AND PROPERTY OF EVERY KIND, CONNECTED THEREWITH,
AND PRAYING THAT THE PROPERTY DESCRIBED BE ADJUDGED TO THE MUNICIPALITY
UPON PAYMENT TO THE OWNER OF THE VALUE OF THE PROPERTY PLUS ALL DAMAGES
SUSTAINED IN CONSEQUENCE OF THE EXPROPRIATION.  WHERE THE SAME PERSON
IS THE OWNER OF BOTH GAS, ELECTRIC LIGHT, AND WATER WORKS PLANTS, OR OF
MORE THAN ONE OF ANY ONE KIND OF PLANT, THE MUNICIPAL CORPORATION MAY
NOT EXPROPRIATE ANY ONE OF THE PLANTS WITHOUT EXPROPRIATING ALL OF THE
PLANTS OWNED BY THE SAME PERSON." 
..END :













LASSITER V. NORTHAMPTON COUNTY BOARD OF ELECTION 360 U.S. 45 


NO. 584.  ARGUED MAY 18-19, 1959.  - DECIDED JUNE 8, 1959.  - 248 N.C.
102, 102 S.E.2D 853, AFFIRMED. 


1.  A STATE MAY, CONSISTENTLY WITH THE FOURTEENTH AND SEVENTEENTH
AMENDMENTS, APPLY A LITERACY TEST TO ALL VOTERS IRRESPECTIVE OF RACE OR
COLOR.  GUINN V. UNITED STATES, 238 U.S. 347.  PP. 50-53. 

2.  THE NORTH CAROLINA REQUIREMENT HERE INVOLVED, WHICH IS APPLICABLE
TO MEMBERS OF ALL RACES AND REQUIRES THAT THE PROSPECTIVE VOTER "BE
ABLE TO READ AND WRITE ANY SECTION OF THE CONSTITUTION OF NORTH
CAROLINA IN THE ENGLISH LANGUAGE," DOES NOT ON ITS FACE VIOLATE THE
FIFTEENTH AMENDMENT.  PP. 53-54. 

LASSITER V. NORTHAMPTON COUNTY BOARD OF ELECTIONS. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY STARTED IN A FEDERAL DISTRICT COURT.  APPELLANT, A
NEGRO CITIZEN OF NORTH CAROLINA, SUED TO HAVE THE LITERACY TEST FOR
VOTERS PRESCRIBED BY THAT STATE DECLARED UNCONSTITUTIONAL AND VOID.  A
THREE-JUDGE COURT WAS CONVENED.  THAT COURT NOTED THAT THE LITERACY
TEST WAS PART OF A PROVISION OF THE NORTH CAROLINA CONSTITUTION THAT
ALSO INCLUDED A GRANDFATHER CLAUSE.  IT SAID THAT THE GRANDFATHER
CLAUSE PLAINLY WOULD BE UNCONSTITUTIONAL UNDER GUINN V. UNITED STATES,
238 U.S. 347.  IT NOTED, HOWEVER, THAT THE NORTH CAROLINA STATUTE WHICH
ENFORCED THE REGISTRATION REQUIREMENTS CONTAINED IN THE STATE
CONSTITUTION HAD BEEN SUPERSEDED BY A 1957 ACT AND THAT THE 1957 ACT
DOES NOT CONTAIN THE GRANDFATHER CLAUSE OR ANY REFERENCE TO IT.  BUT
BEING UNCERTAIN AS TO THE SIGNIFICANCE OF THE 1957 ACT AND DEEMING IT
WISE TO HAVE ALL ADMINISTRATIVE REMEDIES UNDER THAT ACT EXHAUSTED
BEFORE THE FEDERAL COURT ACTED, IT STAYED ITS ACTION, RETAINING
JURISDICTION FOR A REASONABLE TIME TO ENABLE APPELLANT TO EXHAUST HER
ADMINISTRATIVE REMEDIES AND OBTAIN FROM THE STATE COURTS AN
INTERPRETATION OF THE STATUTE IN LIGHT OF THE STATE CONSTITUTION.  152
F. SUPP. 295. 

THEREUPON THE INSTANT CASE WAS COMMENCED.  IT STARTED AS AN
ADMINISTRATIVE PROCEEDING.  APPELLANT APPLIED FOR REGISTRATION AS A
VOTER.  HER REGISTRATION WAS DENIED BY THE REGISTRAR BECAUSE SHE
REFUSED TO SUBMIT TO A LITERACY TEST AS REQUIRED BY THE NORTH CAROLINA
STATUTE.  (FN1)  SHE APPEALED TO THE COUNTY BOARD OF ELECTIONS.  ON THE
DE NOVO HEARING BEFORE THAT BOARD APPELLANT AGAIN REFUSED TO TAKE THE
LITERACY TEST AND SHE WAS AGAIN DENIED REGISTRATION FOR THAT REASON. 
SHE APPEALED TO THE SUPERIOR COURT WHICH SUSTAINED THE BOARD AGAINST
THE CLAIM THAT THE REQUIREMENT OF THE LITERACY TEST VIOLATED THE
FOURTEENTH, FIFTEENTH, AND SEVENTEENTH AMENDMENTS OF THE FEDERAL
CONSTITUTION.  PRESERVING HER FEDERAL QUESTION, SHE APPEALED TO THE
NORTH CAROLINA SUPREME COURT WHICH AFFIRMED THE LOWER COURT.  248 N.C.
102, S.E.2D 853.  THE CASE CAME HERE BY APPEAL, 28 U.S.C. SEC. 1257(2),
AND WE NOTED PROBABLE JURISDICTION.  358 U.S. 916. 

THE LITERACY TEST IS A PART OF SEC. 4 OF ART. VI OF THE NORTH
CAROLINA CONSTITUTION.  THAT TEST IS CONTAINED IN THE FIRST SENTENCE OF
SEC. 4.  THE SECOND SENTENCE CONTAINS A SO-CALLED GRANDFATHER CLAUSE. 
THE ENTIRE SEC. 4 READS AS FOLLOWS: 

"EVERY PERSON PRESENTING HIMSELF FOR REGISTRATION SHALL BE ABLE TO
READ AND WRITE ANY SECTION OF THE CONSTITUTION IN THE ENGLISH
LANGUAGE.  BUT NO MALE PERSON WHO WAS, ON JANUARY 1, 1867, OR AT ANY
TIME PRIOR THERETO, ENTITLED TO VOTE UNDER THE LAWS OF ANY STATE IN THE
UNITED STATES WHEREIN HE THEN RESIDED, AND NO LINEAL DESCENDANT OF ANY
SUCH PERSON, SHALL BE DENIED THE RIGHT TO REGISTER AND VOTE AT ANY
ELECTION IN THIS STATE BY REASON OF HIS FAILURE TO POSSESS THE
EDUCATIONAL QUALIFICATIONS HEREIN PRESCRIBED:  PROVIDED, HE SHALL HAVE
REGISTERED IN ACCORDANCE WITH THE TERMS OF THIS SECTION PRIOR TO
DECEMBER 1, 1908.  THE GENERAL ASSEMBLY SHALL PROVIDE FOR THE
REGISTRATION OF ALL PERSONS ENTITLED TO VOTE WITHOUT THE EDUCATIONAL
QUALIFICATIONS HEREIN PRESCRIBED, AND SHALL, ON OR BEFORE NOVEMBER 1,
1908, PROVIDE FOR THE MAKING OF A PERMANENT RECORD OF SUCH
REGISTRATION, AND ALL PERSONS SO REGISTERED SHALL FOREVER THEREAFTER
HAVE THE RIGHT TO VOTE IN ALL ELECTIONS BY THE PEOPLE IN THIS STATE,
UNLESS DISQUALIFIED UNDER SECTION 2 OF THIS ARTICLE." 

ORIGINALLY ART. VI CONTAINED IN SEC. 5 THE FOLLOWING PROVISION: 

"THAT THIS AMENDMENT TO THE CONSTITUTION IS PRESENTED AND ADOPTED AS
ONE INDIVISIBLE PLAN FOR THE REGULATION OF THE SUFFRAGE, WITH THE
INTENT AND PURPOSE TO SO CONNECT THE DIFFERENT PARTS, AND TO MAKE THEM
SO DEPENDENT UPON EACH OTHER, THAT THE WHOLE SHALL STAND OR FALL
TOGETHER." 

BUT THE NORTH CAROLINA SUPREME COURT IN THE INSTANT CASE HELD THAT A
1945 AMENDMENT TO ARTICLE VI FREED IT OF THE INDIVISIBILITY CLAUSE. 
THAT AMENDMENT REPHRASED SEC. 1 OF ART. VI TO READ AS FOLLOWS: 

"EVERY PERSON BORN IN THE UNITED STATES, AND EVERY PERSON WHO HAS
BEEN NATURALIZED, TWENTY-ONE YEARS OF AGE, AND POSSESSING THE
QUALIFICATIONS SET OUT IN THIS ARTICLE, SHALL BE ENTITLED TO VOTE ...
." 

THAT COURT SAID THAT "ONE OF THOSE QUALIFICATIONS" WAS THE LITERACY
TEST CONTAINED IN SEC. 4 OF ART. VI; AND THAT THE 1945 AMENDMENT "HAD
THE EFFECT OF INCORPORATING AND ADOPTING ANEW THE PROVISIONS AS TO THE
QUALIFICATIONS REQUIRED OF A VOTER AS SET OUT IN ARTICLE VI, FREED OF
THE INDIVISIBILITY CLAUSE OF THE 1902 AMENDMENT.  AND THE WAY WAS MADE
CLEAR FOR THE GENERAL ASSEMBLY TO ACT."  248 N.C., AT 112, 102 S.E.2D
860, 861. 

IN 1957 THE LEGISLATURE REWROTE GENERAL STATUTES SEC. 163-28 AS WE
HAVE NOTED.  (FN2)  PRIOR TO THAT 1957 AMENDMENT SEC. 163-28
PERPETUATED THE GRANDFATHER CLAUSE CONTAINED IN SEC. 4 OF ART. VI OF
THE CONSTITUTION AND SEC. 163-32 ESTABLISHED A PROCEDURE FOR
REGISTRATION TO EFFECTUATE IT.  (FN3) BUT THE 1957 AMENDMENT CONTAINED
A PROVISION THAT "ALL LAWS AND CLAUSES OF LAWS IN CONFLICT WITH THIS
ACT ARE HEREBY REPEALED."  (FN4)  THE FEDERAL THREE-JUDGE COURT RULED
THAT THIS 1957 AMENDMENT ELIMINATED THE GRANDFATHER CLAUSE FROM THE
STATUTE.  152.  F. SUPP., AT 296. 

THE ATTORNEY GENERAL OF NORTH CAROLINA, IN AN AMICUS BRIEF, AGREES
THAT THE GRANDFATHER CLAUSE CONTAINED IN ART. VI IS IN CONFLICT WITH
THE FIFTEENTH AMENDMENT.  APPELLEE MAINTAINS THAT THE NORTH CAROLINA
SUPREME COURT RULED THAT THE INVALIDITY OF THAT PART OF ART. VI DOES
NOT IMPAIR THE REMAINDER OF ART. VI SINCE THE 1945 AMENDMENT TO ART. VI
WOULD IMPOSE THE SAME LITERACY TEST AS THAT IMPOSED BY THE 1957 STATUTE
AND NEITHER WOULD BE LINKED WITH THE GRANDFATHER CLAUSE WHICH, THOUGH
PRESENT IN PRINT, IS SEPARABLE FROM THE REST AND VOID.  WE SO READ THE
OPINION OF THE NORTH CAROLINA SUPREME COURT. 

APPELLANT ARGUES THAT THAT IS NOT THE END OF THE PROBLEM PRESENTED BY
THE GRANDFATHER CLAUSE.  THERE IS A PROVISION IN THE GENERAL STATUTES
FOR PERMANENT REGISTRATION IN SOME COUNTIES.  (FN5) APPELLANT POINTS
OUT THAT ALTHOUGH THE CUT-OFF DATE IN THE GRANDFATHER CLAUSE WAS
DECEMBER 1, 1908, THOSE WHO REGISTERED BEFORE THEN MIGHT STILL BE
VOTING.  IF THEY WERE ALLOWED TO VOTE WITHOUT TAKING A LITERACY TEST
AND IF APPELLANT WERE DENIED THE RIGHT TO VOTE UNLESS SHE PASSED IT,
MEMBERS OF THE WHITE RACE WOULD RECEIVE PREFERENTIAL PRIVILEGES OF THE
BALLOT CONTRARY TO THE COMMAND OF THE FIFTEENTH AMENDMENT.  THAT WOULD
BE ANALOGOUS TO THE PROBLEM POSED IN THE CLASSIC CASE OF YICK WO V.
HOPKINS, 118 U.S. 356, WHERE AN ORDINANCE UNIMPEACHABLE ON ITS FACE WAS
APPLIED IN SUCH A WAY AS TO VIOLATE THE GUARANTEE OF EQUAL PROTECTION
CONTAINED IN THE FOURTEENTH AMENDMENT.  BUT THIS ISSUE OF
DISCRIMINATION IN THE ACTUAL OPERATION OF THE BALLOT LAWS OF NORTH
CAROLINA HAS NOT BEEN FRAMED IN THE ISSUES PRESENTED FOR THE STATE
COURT LITIGATION.  CF. WILLIAMS V. MISSISSIPPI, 170 U.S. 213, 225.  SO
WE DO NOT REACH IT.  BUT WE MENTION IT IN PASSING SO THAT IT MAY BE
CLEAR THAT NOTHING WE SAY OR DO HERE WILL PREJUDICE APPELLANT IN
TENDERING THAT ISSUE IN THE FEDERAL PROCEEDINGS WHICH AWAIT THE
TERMINATION OF THIS STATE COURT LITIGATION. 

WE COME THEN TO THE QUESTION WHETHER A STATE MAY CONSISTENTLY WITH
THE FOURTEENTH AND SEVENTEENTH AMENDMENTS APPLY A LITERACY TEST TO ALL
VOTERS IRRESPECTIVE OF RACE OR COLOR.  THE COURT IN GUINN V. UNITED
STATES, SUPRA, AT 366, DISPOSED OF THE QUESTION IN A FEW WORDS, "NO
TIME NEED BE SPENT ON THE QUESTION OF THE VALIDITY OF THE LITERACY TEST
CONSIDERED ALONE SINCE AS WE HAVE SEEN ITS ESTABLISHMENT WAS BUT THE
EXERCISE BY THE STATE OF A LAWFUL POWER VESTED IN IT NOT SUBJECT TO OUR
SUPERVISION, AND INDEED, ITS VALIDITY IS ADMITTED." 

THE STATES HAVE LONG BEEN HELD TO HAVE BROAD POWERS TO DETERMINE THE
CONDITIONS UNDER WHICH THE RIGHT OF SUFFRAGE MAY BE EXERCISED, POPE V.
WILLIAMS, 193 U.S. 621, 633; MASON V. MISSOURI, 179 U.S. 328, 335,
ABSENT OF COURSE THE DISCRIMINATION WHICH THE CONSTITUTION CONDEMNS. 
ARTICLE I, SEC. 2 OF THE CONSTITUTION IN ITS PROVISION FOR THE ELECTION
OF MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE SEVENTEENTH
AMENDMENT IN ITS PROVISION FOR THE ELECTION OF SENATORS PROVIDE THAT
OFFICIALS WILL BE CHOSEN "BY THE PEOPLE."  EACH PROVISION GOES ON TO
STATE THAT "THE ELECTORS IN EACH STATE SHALL HAVE THE QUALIFICATIONS
REQUISITE FOR ELECTORS OF THE MOST NUMEROUS BRANCH OF THE STATE
LEGISLATURE."  SO WHILE THE RIGHT OF SUFFRAGE IS ESTABLISHED AND
GUARANTEED BY THE CONSTITUTION (EX PARTE YARBROUGH, 110 U.S. 651, 663
665; SMITH V. ALLWRIGHT, 321 U.S. 649, 661-662) IT IS SUBJECT TO THE
IMPOSITION OF STATE STANDARDS WHICH ARE NOT DISCRIMINATORY AND WHICH DO
NOT CONTRAVENE ANY RESTRICTION THAT CONGRESS, ACTING PURSUANT TO ITS
CONSTITUTIONAL POWERS, HAS IMPOSED.  SEE UNITED STATES V. CLASSIC, 313
U.S. 299, 315.  WHILE SEC. 2 OF THE FOURTEENTH AMENDMENT, WHICH
PROVIDES FOR APPORTIONMENT OF REPRESENTATIVES AMONG THE STATES
ACCORDING TO THEIR RESPECTIVE NUMBERS COUNTING THE WHOLE NUMBER OF
PERSONS IN EACH STATE (EXCEPT INDIANS NOT TAXED), SPEAKS OF "THE RIGHT
TO VOTE," THE RIGHT PROTECTED "REFERS TO THE RIGHT TO VOTE AS
ESTABLISHED BY THE LAWS AND CONSTITUTION OF THE STATE."  MCPHERSON V.
BLACKER, 146 U.S. 1, 39. 

WE DO NOT SUGGEST THAT ANY STANDARDS WHICH A STATE DESIRES TO ADOPT
MAY BE REQUIRED OF VOTERS.  BUT THERE IS WIDE SCOPE FOR EXERCISE OF ITS
JURISDICTION.  RESIDENCE REQUIREMENTS, AGE, PREVIOUS CRIMINAL RECORD
(DAVIS V. BEASON, 133 U.S. 333, 345-347) ARE OBVIOUS EXAMPLES
INDICATING FACTORS WHICH A STATE MAY TAKE INTO CONSIDERATION IN
DETERMINING THE QUALIFICATIONS OF VOTERS.  THE ABILITY TO READ AND
WRITE LIKEWISE HAS SOME RELATION TO STANDARDS DESIGNED TO PROMOTE
INTELLIGENT USE OF THE BALLOT.  LITERACY AND ILLITERACY ARE NEUTRAL ON
RACE, CREED, COLOR, AND SEX, AS REPORTS AROUND THE WORLD SHOW.  (FN6)
LITERACY AND INTELLIGENCE ARE OBVIOUSLY NOT SYNONYMOUS.  ILLITERATE
PEOPLE MAY BE INTELLIGENT VOTERS.  YET IN OUR SOCIETY WHERE NEWSPAPERS,
PERIODICALS, BOOKS, AND OTHER PRINTED MATTER CANVASS AND DEBATE
CAMPAIGN ISSUES, A STATE MIGHT CONCLUDE THAT ONLY THOSE WHO ARE
LITERATE SHOULD EXERCISE THE FRANCHISE.  CF. FRANKLIN V. HARPER, 205
GA. 779, 55 S.E.2D 221, APPEAL DISMISSED 339 U.S. 946.  IT WAS SAID
LAST CENTURY IN MASSACHUSETTS THAT A LITERACY TEST WAS DESIGNED TO
INSURE AN "INDEPENDENT AND INTELLIGENT" EXERCISE OF THE RIGHT OF
SUFFRAGE.  (FN7)  STONE V. SMITH, 159 MASS. 413-414, 34 N.E. 521. 
NORTH CAROLINA AGREES.  WE DO NOT SIT IN JUDGMENT ON THE WISDOM OF THAT
POLICY.  WE CANNOT SAY, HOWEVER, THAT IT IS NOT AN ALLOWABLE ONE
MEASURED BY CONSTITUTIONAL STANDARDS. 

OF COURSE A LITERACY TEST, FAIR ON ITS FACE, MAY BE EMPLOYED TO
PERPETUATE THAT DISCRIMINATION WHICH THE FIFTEENTH AMENDMENT WAS
DESIGNED TO UPROOT.  NO SUCH INFLUENCE IS CHARGED HERE.  ON THE OTHER
HAND, A LITERACY TEST MAY BE UNCONSTITUTIONAL ON ITS FACE.  IN DAVIS V.
SCHNELL, 81 F. SUPP. 872, AFF'D 336 U.S. 933, THE TEST WAS THE
CITIZEN'S ABILITY TO "UNDERSTAND AND EXPLAIN AN ARTICLE OF THE FEDERAL
CONSTITUTION.  THE LIGISLATIVE SETTING OF THAT PROVISION AND THE GREAT
DISCRETION IT VESTED IN THE REGISTRAR MADE CLEAR THAT A LITERACY
REQUIREMENT WAS MERELY A DEVICE TO MAKE RACIAL DISCRIMINATION EASY.  WE
CANNOT MAKE THE SAME INFERENCE HERE.  THE PRESENT REQUIREMENT,
APPLICABLE TO MEMBERS OF ALL RACES, IS THAT THE PROSPECTIVE VOTER "BE
ABLE TO READ AND WRITE ANY SECTION OF THE CONSTITUTION OF NORTH
CAROLINA IN THE ENGLISH LANGUAGE."  THAT SEEMS TO US TO BE ONE FAIR WAY
OF DETERMINING WHETHER A PERSON IS LITERATE, NOT A CALCULATED SCHEME TO
LAY SPRINGES FOR THE CITIZEN.  CERTAINLY WE CANNOT CONDEMN IT ON ITS
FACE AS A DEVICE UNRELATED TO THE DESIRE OF NORTH CAROLINA TO RAISE THE
STANDARDS FOR PEOPLE OF ALL RACES WHO CAST THE BALLOT.  AFFIRMED. 

FN1  THIS ACT, PASSED IN 1957, PROVIDES IN SEC. 163-28 AS FOLLOWS: 

"EVERY PERSON PRESENTING HIMSELF FOR REGISTRATION SHALL BE ABLE TO
READ AND WRITE ANY SECTION OF THE CONSTITUTION OF NORTH CAROLINA IN THE
ENGLISH LANGUAGE.  IT SHALL BE THE DUTY OF EACH REGISTRAR TO ADMINISTER
THE PROVISIONS OF THIS SECTION." 

REMEDIES PURSUED IN THIS CASE. 

FN2  NOTE 1, SUPRA. 

FN3  SECTION 163-32 PROVIDED: 

"EVERY PERSON CLAIMING THE BENEFIT OF SECTION FOUR OF ARTICLE SIX OF
THE CONSTITUTION OF NORTH CAROLINA, AS RATIFIED AT THE GENERAL ELECTION
ON THE SECOND DAY OF AUGUST, ONE THOUSAND NINE HUNDRED, AND WHO SHALL
BE ENTITLED TO REGISTER UPON THE PERMANENT RECORD FOR REGISTRATION
PROVIDED FOR UNDER SAID SECTION FOUR, SHALL PRIOR TO DECEMBER FIRST,
ONE THOUSAND NINE HUNDRED AND EIGHT, APPLY FOR REGISTRATION TO THE
OFFICER CHARGED WITH THE REGISTRATION OF VOTERS AS PRESCRIBED BY LAW IN
EACH REGULAR ELECTION TO BE HELD IN THE STATE FOR MEMBERS OF THE
GENERAL ASSEMBLY, AND SUCH PERSONS SHALL TAKE AND SUBSCRIBE BEFORE SUCH
OFFICER AN OATH IN THE FOLLOWING FORM, VIZ.: 

"I AM A CITIZEN OF THE UNITED STATES AND OF THE STATE OF NORTH
CAROLINA; I AM ..... YEARS OF AGE.  I WAS, ON THE FIRST DAY OF JANUARY,
A.D. ONE THOUSAND EIGHT HUNDRED AND SIXTY-SEVEN, OR PRIOR TO SAID DATE,
ENTITLED TO VOTE UNDER THE CONSTITUTION AND LAWS OF THE STATE OF .....
, IN WHICH I THEN RESIDED (OR, I AM A LINEAL DESCENDANT OF ..... , WHO
WAS, ON JANUARY ONE, ONE THOUSAND EIGHT HUNDRED AND SIXTY-SEVEN, OR
PRIOR TO THAT DATE, ENTITLED TO VOTE UNDER THE CONSTITUTION AND LAWS OF
THE STATE OF ..... , WHEREIN HE THEN RESIDED."    FN4  N.C. LAWS 1957,
C. 287, PP. 277, 278. 

FN5  SECTION 163-31.2 PROVIDES: 

"IN COUNTIES HAVING ONE OR MORE MUNICIPALITIES WITH A POPULATION IN
EXCESS OF 10,000 AND IN WHICH A MODERN LOOSE-LEAF AND VISIBLE
REGISTRATION SYSTEM HAS BEEN ESTABLISHED AS PERMITTED BY G.S. 163-43,
WITH A FULL TIME REGISTRATION AS AUTHORIZED BY G.S. 163-31, SUCH
REGISTRATION SHALL BE A PERMANENT PUBLIC RECORD OF REGISTRATION AND
QUALIFICATION TO VOTE, AND THE SAME SHALL NOT THEREAFTER BE CANCELLED
AND A NEW REGISTRATION ORDERED, EITHER BY PRECINCT OR COUNTYWIDE,
UNLESS SUCH REGISTRATION HAS BEEN LOST OR DESTROYED BY THEFT, FIRE OR
OTHER HAZARD." 

FN6  WORLD ILLITERACY AT MID-CENTURY, UNESCO (1957). 

FN7  NINETEEN STATES, INCLUDING NORTH CAROLINA, HAVE SOME SORT OF
LITERACY REQUIREMENT AS A PREREQUISITE TO ELIGIBILITY FOR VOTING.  FIVE
REQUIRE THAT THE VOTER BE ABLE TO READ A SECTION OF THE STATE OR
FEDERAL CONSTITUTION AND WRITE HIS OWN NAME.  ARIZONA REV. STAT.  SEC.
16-101; CAL. ELECTION CODE SEC. 220; DEL. CODE ANN., TIT. 15 SEC. 1701;
ME. REV. STAT., C. 3, SEC. 2; MASS. GEN. L. ANN., C. 51, SEC. 1.  FIVE
REQUIRE THAT THE ELECTOR BE ABLE TO READ AND WRITE A SECTION OF THE
FEDERAL OR STATE CONSTITUTION.  ALA. CODE, 1940, TIT.  17, SEC. 32;
N.H. REV. STAT. ANN. SECS. 55:10-55:12; N.C. GEN. STAT. SEC. 163-28;
OKLA.  STAT. ANN., TIT. 26, SEC. 61; S.C. CODE SEC. 23-62.   ALABAMA
ALSO REQUIRES THAT THE VOTER BE OF "GOOD CHARACTER" AND "EMBRACE THE
DUTIES AND OBLIGATIONS OF CITIZENSHIP" UNDER THE FEDERAL AND STATE
CONSTITUTIONS.  ALA. CODE, TIT. 17, SEC. 32 (1955 SUPP.). 

TWO STATES REQUIRE THAT THE VOTER BE ABLE TO READ AND WRITE ENGLISH. 
N.Y. ELECTION CODE SEC. 150; ORE.  REV.  STAT. SEC. 247.131.  WYOMING
(WYO. COMP. STAT. ANN. SEC 31-113) AND CONNECTICUT (CONN. GEN. STAT.
SEC. 9-12) REQUIRE THAT THE VOTER READ A CONSTITUTIONAL PROVISION IN
ENGLISH, WHILE VIRGINIA (VA. CODE SEC. 24-68) REQUIRES THAT THE VOTING
APPLICATION BE WRITTEN IN THE APPLICANT'S HAND BEFORE THE REGISTRAR AND
WITHOUT AID, SUGGESTION OR MEMORANDA.  WASHINGTON (WASH. REV. CODE SEC.
29.07.070) HAS THE REQUIREMENT THAT THE VOTER BE ABLE TO READ AND SPEAK
THE ENGLISH LANGUAGE. 

GEORGIA REQUIRES THAT THE VOTER READ INTELLIGIBLY AND WRITE LEGIBLY A
UNABLE TO DO SO, HE MAY QUALIFY IF HE CAN GIVE A REASONABLE
INTERPRETATION OF A SECTION READ TO HIM.  AN ALTERNATIVE MEANS OF
QUALIFYING IS PROVIDED:  IF ONE HAS GOOD CHARACTER AND UNDERSTANDS THE
DUTIES AND OBLIGATIONS OF CITIZENSHIP UNDER A REPUBLICAN GOVERNMENT,
AND HE CAN ANSWER CORRECTLY 20 OF 30 QUESTIONS LISTED IN THE STATUTE
(E.G., HOW DOES THE CONSTITUTION OF GEORGIA PROVIDE THAT A COUNTY SITE
MAY BE CHANGED?, WHAT IS TREASON AGAINST THE STATE OF GEORGIA?, WHO ARE
THE SOLICITOR GENERAL AND THE JUDGE OF THE STATE JUDICIAL CIRCUIT IN
WHICH YOU LIVE?)  HE IS ELIGIBLE TO VOTE.  GEO. CODE ANN. SECS. 34-117,
34-120. 

IN LOUISIANA ONE QUALIFIES IF HE CAN READ AND WRITE ENGLISH OR HIS
MOTHER TONGUE, IS OF GOOD CHARACTER, AND UNDERSTANDS THE DUTIES AND
OBLIGATIONS OF CITIZENSHIP UNDER A REPUBLICAN FORM OF GOVERNMENT.  IF
HE CANNOT READ AND WRITE, HE CAN QUALIFY IF HE CAN GIVE A REASONABLE
INTERPRETATION OF A SECTION OF THE STATE OR FEDERAL CONSTITUTION WHEN
READ TO HIM, AND IF HE IS ATTACHED TO THE PRINCIPLES OF THE FEDERAL AND
STATE CONSTITUTIONS.  LA. REV. STAT., TIT. 18, SEC. 31. 

IN MISSISSIPPI THE APPLICANT MUST BE ABLE TO READ AND WRITE A SECTION
OF THE STATE CONSTITUTION AND GIVE A REASONABLE INTERPRETATION OF IT.
HE MUST ALSO DEMONSTRATE TO THE REGISTRAR A REASONABLE UNDERSTANDING OF
THE DUTIES AND OBLIGATIONS OF CITIZENSHIP UNDER A CONSTITUTIONAL FORM
OF GOVERNMENT.  MISS.  CODE ANN. SEC. 3213. 
..END :






















FEDERAL TRADE COMMISSION V. SIMPLICITY PATTERN CO., INC. 360 U.S. 55 


NO. 406.  ARGUED APRIL 21, 1959.  - DECIDED JUNE 8, 1959.* - 103 U.S.
APP. D.C. 373, 258 F.2D 673, AFFIRMED IN PART AND REVERSED IN PART. 

*TOGETHER WITH NO. 447, SIMPLICITY PATTERN CO., INC., V. FEDERAL
TRADE COMMISSION, ALSO ON CERTIORARI TO THE SAME COURT. 


IN THIS CASE THE FEDERAL TRADE COMMISSION FOUND THAT ONE OF THE
NATION'S LARGEST MANUFACTURERS OF DRESS PATTERNS DISCRIMINATED IN FAVOR
OF ITS LARGER CUSTOMERS BY FURNISHING TO THEM SERVICES AND FACILITIES
NOT ACCORDED TO COMPETING SMALLER CUSTOMERS ON PROPORTIONALLY EQUAL
TERMS, IN VIOLATION OF SEC. 2(E) OF THE CLAYTON ACT, AS AMENDED BY THE
ROBINSON-PATMAN ACT, AND IT ORDERED THE MANUFACTURER TO CEASE AND
DESIST FROM DOING SO.  HELD:  THE COMMISSION'S ORDER IS SUSTAINED.  PP.
56-71. 

(A)  THOUGH THE MANUFACTURER'S LARGER CUSTOMERS SOLD THE PATTERNS FOR
A PROFIT WHILE ITS SMALLER CUSTOMERS SOLD THEM AS AN ACCOMMODATION TO
PURCHASERS OF THEIR FABRICS, AND NO SPECIFIC INJURY TO COMPETITION IN
PATTERNS WAS SHOWN, THE RECORD JUSTIFIED THE COMMISSION'S FINDING THAT
THEY WERE COMPETITORS.  PP. 62-64. 

(B)  GIVEN COMPETITION BETWEEN THE TWO CLASSES OF CUSTOMERS, NEITHER
ABSENCE OF COMPETITIVE INJURY NOR THE PRESENCE OF "COST-JUSTIFICATION"
IS AVAILABLE AS A DEFENSE TO A CHARGE OF VIOLATING SEC. 2(E) OF THE
ACT.  PP. 64-71. 

FEDERAL TRADE COMMISSION V. SIMPLICITY PATTERN CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS, FOR THE FIRST TIME IN THIS COURT, ISSUES RELATING
TO THE AVAILABILITY OF CERTAIN DEFENSES TO A PRIMA FACIE VIOLATION OF
SEC. 2(E) OF THE CLAYTON ACT, 38 STAT.  730, AS AMENDED BY THE ROBINSON
PATMAN ACT, 49 STAT. 1526.  (FN1)  THE FEDERAL TRADE COMMISSION HAS
FOUND THAT SIMPLICITY PATTERN CO., INC., ONE OF THE NATION'S LARGEST
DRESS PATTERN MANUFACTURERS, DISCRIMINATED IN FAVOR OF ITS LARGER
CUSTOMERS BY FURNISHING TO THEM SERVICES AND FACILITIES NOT ACCORDED TO
COMPETING SMALLER CUSTOMERS ON PROPORTIONALLY EQUAL TERMS.  THE
COMMISSION HELD THAT NEITHER THE PRESENCE OF "COST JUSTIFICATION" NOR
THE ABSENCE OF COMPETITIVE INJURY MAY CONSTITUTE A DEFENSE TO A SEC.
2(E) VIOLATION. 

THE COURT OF APPEALS FOUND THAT COMPETITION EXISTED BETWEEN THE
LARGER AND SMALLER CUSTOMERS OF SIMPLICITY AND, WITH ONE JUDGE
DISSENTING, HELD THAT AN ABSENCE OF COMPETITIVE INJURY WOULD NOT
CONSTITUTE A "JUSTIFICATION" REBUTTING A PRIMA FACIE SHOWING OF A SEC.
2(E) VIOLATION.  THROUGH A DIFFERENT MAJORITY, (FN2) HOWEVER, IT
REMANDED THE CASE ON THE "COST JUSTIFICATION" DEFENSE UNDER SEC. 2(B),
HOLDING THAT SIMPLICITY MIGHT REBUT THE PRIMA FACIE CASE BY SHOWING
THAT THE DISCRIMINATIONS IN SERVICES AND FACILITIES WERE JUSTIFIED BY
DIFFERENCES IN SIMPLICITY'S COSTS IN DEALING WITH THE TWO CLASSES OF
CUSTOMERS.  103 U.S. APP. D.C. 373, 258 F.2D 673.  THE COMMISSION, IN
NO. 406, AND SIMPLICITY, IN NO. 447, FILED CROSS-PETITIONS FOR
CERTIORARI WHICH WE CONSIDER TOGETHER.  WE GRANTED BOTH PETITIONS
BECAUSE OF THE FUNDAMENTAL SIGNIFICANCE OF THESE ISSUES IN THE
APPLICATION OF AN IMPORTANT ACT OF CONGRESS.  358 U.S. 897.  WE HAVE
CONCLUDED THAT, GIVEN COMPETITION BETWEEN THE TWO CLASSES OF CUSTOMERS,
NEITHER ABSENCE OF COMPETITIVE INJURY NOR THE PRESENCE OF "COST
JUSTIFICATION" DEFEATS ENFORCEMENT OF THE PROVISIONS OF SEC. 2(E) OF
THE ACT.  THE ACTION OF THE COMMISSION IN ISSUING THE CEASE-AND-DESIST
ORDER IS, THEREFORE, AFFIRMED. 

SIMPLICITY MANUFACTURES AND SELLS TISSUE PATTERNS WHICH ARE USED IN
THE HOME FOR MAKING WOMEN'S AND CHILDREN'S WEARING APPAREL.  ITS VOLUME
OF PATTERN SALES, IN TERMS OF SALES UNITS, IS GREATER THAN THAT
RESULTING FROM THE COMBINED EFFORT OF ALL OTHER MAJOR PRODUCERS.  (FN3)
THE PATTERNS ARE SOLD TO SOME 12,300 RETAILERS, WITH 17,200 OUTLETS. 
FOR PRESENT PURPOSES, THESE CUSTOMERS CAN BE DIVIDED ROUGHLY INTO TWO
CATEGORIES.  ONE, CONSISTING LARGELY OF DEPARTMENT AND VARIETY STORES,
COMPRISES ONLY 18% OF THE TOTAL NUMBER OF CUSTOMERS, BUT ACCOUNTS FOR
70% OF THE TOTAL SALES VOLUME.   THE REMAINING 82% OF THE CUSTOMERS ARE
SMALL STORES WHOSE PRIMARY BUSINESS IS THE SALE OF YARDGOOD FABRICS. 

ABOUT 600 DIFFERENT PATTERNS ARE MADE AVAILABLE TO SIMPLICITY'S
CUSTOMERS.  NEW PATTERNS ARE ADDED AT THE RATE OF 40 PER MONTH, WHILE
THREE TIMES ANNUALLY THE OBSOLETE DESIGNS ARE DISCONTINUED SO AS TO
MAINTAIN THE NUMBER OF DESIGNS AT A RELATIVELY CONSTANT LEVEL.  THE
DIFFERENT DESIGNS ARE DISPLAYED IN A CATALOGUE WHICH IS CHANGED MONTHLY
IN ORDER TO REFLECT THE CHANGES IN AVAILABLE DESIGNS.  THE PATTERNS
THEMSELVES ARE STORED AND DISPLAYED IN STEEL CABINETS.  THE CATALOGUES
AND STORAGE CABINETS ARE BOTH FURNISHED BY SIMPLICITY. 

THE VARIETY STORES HANDLE AND SELL A MULTITUDE OF RELATIVELY LOW
PRICED ARTICLES.  EACH ARTICLE, INCLUDING DRESS PATTERNS, IS SOLD FOR
THE PURPOSE OF RETURNING A PROFIT AND WOULD BE DROPPED IF IT FAILED TO
DO SO.  THE FABRIC STORES, ON THE OTHER HAND, ARE PRIMARILY INTERESTED
IN SELLING YARD GOODS; THEY HANDLE PATTERNS AT NO PROFIT OR EVEN AT A
LOSS AS AN ACCOMMODATION TO THEIR FABRIC CUSTOMERS AND FOR THE PURPOSE
OF STIMULATING FABRIC SALES.  THESE DIFFERENCES IN MOTIVE ARE REFLECTED
IN THE MANNER IN WHICH EACH TYPE OF STORE HANDLES ITS PATTERNS.  THE
VARIETY STORES DEVOTE THE MINIMUM AMOUNT OF DISPLAY SPACE CONSISTENT
WITH ADEQUATE MERCHANDISING - CONSISTING USUALLY OF NOTHING MORE THAN A
PLACE ON THE COUNTER FOR THE CATALOGUES, WITH THE PATTERNS THEMSELVES
STORED UNDERNEATH THE COUNTER IN THE STEEL CABINETS FURNISHED BY
SIMPLICITY.  IN CONTRAST, THE FABRIC STORES USUALLY PROVIDE TABLES AND
CHAIRS WHERE THE CUSTOMERS MAY PERUSE THE CATALOGUES IN COMFORT AND AT
THEIR LEISURE. 

THE RETAIL PRICES OF SIMPLICITY PATTERNS ARE UNIFORM AT 25 CENTS, 35
CENTS, OR 50 CENTS.  SIMILARLY, SIMPLICITY CHARGES A UNIFORM PRICE, TO
ALL ITS CUSTOMERS, OF 60% OF THE RETAIL PRICE.  HOWEVER, IN THE
FURNISHING OF CERTAIN SERVICES AND FACILITIES SIMPLICITY DOES NOT
FOLLOW THIS UNIFORMITY.  IT FURNISHES PATTERNS TO THE VARIETY STORES ON
A CONSIGNMENT BASIS, REQUIRING PAYMENT ONLY AS AND WHEN PATTERNS ARE
SOLD - THUS AFFORDING THEM AN INVESTMENT-FREE INVENTORY.  THE FABRIC
STORES ARE REQUIRED TO PAY CASH FOR THEIR PATTERNS IN REGULAR COURSE. 
IN ADDITION, THE CABINETS AND THE CATALOGUES ARE FURNISHED TO VARIETY
STORES FREE WHILE THE FABRIC STORES ARE CHARGED THEREFOR, THE
CATALOGUES AVERAGING FROM $2 TO $3 EACH.  FINALLY, ALL TRANSPORTATION
COSTS IN CONNECTION WITH ITS BUSINESS WITH VARIETY STORES ARE PAID BY
SIMPLICITY BUT NONE IS PAID ON FABRIC-STORE TRANSACTIONS. 

THE FREE SERVICES AND FACILITIES THUS FURNISHED VARIETY STORE CHAINS
ARE SUBSTANTIAL IN VALUE.  AS TO FOUR VARIETY STORE CHAINS, THE
CATALOGUES WHICH SIMPLICITY FURNISHED FREE IN 1954 WERE VALUED AT
$128,904; THE CABINETS FURNISHED FREE WHICH THOSE STORES HAD ON HAND AT
THE END OF 1954 WERE VALUED AT OVER $500,000; AND THEIR INVENTORY OF
SIMPLICITY'S PATTERNS AT THE END OF 1954 WAS VALUED AT MORE THAN
$1,775,000, EACH OF THESE VALUES BEING BASED ON SIMPLICITY'S USUAL
SALES PRICE.  SIMPLICITY'S PRESIDENT TESTIFIED THAT IT WOULD COST OVER
$2,000,000 ANNUALLY TO GIVE ITS OTHER CUSTOMERS THE FREE
TRANSPORTATION, FREE CATALOGUES, AND FREE CABINETS FURNISHED TO VARIETY
STORES.  (FN4). 

SIMPLICITY DOES NOT DISPUTE THESE FINDINGS.  ASSUMING THAT THE
EXISTENCE OF COMPETITION BETWEEN PURCHASERS IS A NECESSARY ELEMENT IN A
SEC. 2(E) PROSECUTION, IT INSISTS THAT NO REAL COMPETITION IN PATTERNS
EXISTS BETWEEN THE VARIETY AND THE FABRIC STORES.  IT ALSO CONTENDS
THAT EVEN IF COMPETITION IS PRESENT ITS CONDUCT MAY BE JUSTIFIED BY A
SHOWING THAT NO COMPETITIVE INJURY RESULTED OR, ALTERNATIVELY, THAT THE
DISCRIMINATIONS ARE NOT UNLAWFUL IF IT COULD BE SHOWN THAT THE
DIFFERENTIAL TREATMENT WAS ONLY REFLECTIVE OF THE DIFFERENCES IN ITS
COSTS IN DEALING WITH THE TWO TYPES OF CUSTOMERS. 

1.  EXISTENCE OF COMPETITION. 

THE UNANIMOUS CONCLUSION OF THE EXAMINER, THE COMMISSION, AND THE
COURT OF APPEALS ON THIS POINT WAS, AS STATED BY THE COURT OF APPEALS,
THAT THE VARIETY AND FABRIC STORES, "OPERATING IN THE SAME CITIES AND
IN THE SAME SHOPPING AREA, OFTEN SIDE BY SIDE, WERE COMPETITORS,
PURCHASING FROM SIMPLICITY AT THE SAME PRICE AND THEN AT LIKE PRICES
RETAILING THE IDENTICAL PRODUCT TO SUBSTANTIALLY THE SAME SEGMENT OF
THE PUBLIC."  103 U.S. APP. D.C., AT 377, 258 F.2D, AT 677.  SIMPLICITY
ARGUES THAT "MOTIVATION" CONTROLS AND THAT SINCE THE VARIETY STORE
SELLS FOR A PROFIT AND THE FABRIC STORE FOR ACCOMMODATION THAT THE
COMPETITION IS MINUSCULE.  BUT THE EXISTENCE OF COMPETITION DOES NOT
DEPEND ON MOTIVES.  REGARDLESS OF THE NECESSITY THE FABRIC STORES FIND
IN THE HANDLING OF PATTERNS IT DOES NOT REMOVE THEIR INCENTIVE TO SELL
THOSE ON HAND, ESPECIALLY WHEN CASH IS TIED UP IN KEEPING PATTERNS ON
THE SHELVES.  THE DISCRIMINATORY TERMS UNDER WHICH THEY ARE OBLIGED TO
HANDLE THEM INCREASE THEIR LOSSES.  FURTHERMORE, SIMPLICITY NOT ONLY
TAKES ADVANTAGE OF THE CAPTIVE NATURE OF THE FABRIC STORES IN NOT
GRANTING THEM THESE ADVANTAGES BUT COMPOUNDS THE DAMAGE BY CREATING A
SALES OUTLET IN THE VARIETY STORES THROUGH THE GRANTING OF THESE
SUBSTANTIAL INCENTIVES TO ENGAGE IN THE PATTERN BUSINESS.  WITHOUT SUCH
PARTIAL SUBSIDIZATION THE VARIETY STORES MIGHT NOT ENTER INTO THE
PATTERN TRADE AT ALL. 

NOR DOES IT FOLLOW THAT THE FAILURE HERE TO SHOW SPECIFIC INJURY TO
COMPETITION IN PATTERNS IS INCONSISTENT WITH A FINDING THAT COMPETITION
IN FACT EXISTS.  (FN5)  IT MAY BE, AS SIMPLICITY ARGUES, THAT THE SALE
OF PATTERNS IS MINUSCULE IN THE OVER-ALL BUSINESS OF A VARIETY STORE,
BUT THE SAME IS TRUE OF THOUSANDS OF OTHER ITEMS.  WHILE THE GIVING OF
DISCRIMINATORY CONCESSIONS TO A VARIETY STORE ON ANY ONE ISOLATED ITEM
MIGHT CAUSE NO INJURY TO COMPETITION WITH A FABRIC STORE IN ITS OVER
ALL OPERATION, THAT FACT DOES NOT RENDER NONEXISTENT THE ACTUAL
COMPETITION BETWEEN THEM IN PATTERNS.  IT REMAINS, AND, BECAUSE OF THE
DISCRIMINATORY CONCESSIONS, CAUSES FURTHER LOSSES TO THE FABRIC STORE. 
AS THIS COURT SAID IN FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S.
37, 49 (1948): 

"THERE ARE MANY ARTICLES IN A GROCERY STORE THAT, CONSIDERED
SEPARATELY, ARE COMPARATIVELY SMALL PARTS OF A MERCHANT'S STOCK. 
CONGRESS INTENDED TO PROTECT A MERCHANT FROM COMPETITIVE INJURY
ATTRIBUTABLE TO DISCRIMINATORY PRICES ON ANY OR ALL GOODS SOLD IN
INTERSTATE COMMERCE, WHETHER THE PARTICULAR GOODS CONSTITUTED A MAJOR
OR MINOR PORTION OF HIS STOCK.  SINCE A GROCERY STORE CONSISTS OF MANY
COMPARATIVELY SMALL ARTICLES, THERE IS NO POSSIBLE WAY EFFECTIVELY TO
PROTECT A GROCER FROM DISCRIMINATORY PRICES EXCEPT BY APPLYING THE
PROHIBITIONS OF THE ACT TO EACH INDIVIDUAL ARTICLE IN THE STORE." 

       2.  APPLICATION OF THE JUSTIFICATION DEFENSES OF SEC. 2(B). 

SIMPLICITY CONTENDS THAT AN ABSENCE OF COMPETITIVE INJURY CONSTITUTES
A DEFENSE UNDER THE JUSTIFICATION PROVISIONS OF SEC. 2(B) AND FURTHER
THAT IT SHOULD HAVE BEEN PERMITTED, UNDER THAT SUBSECTION, TO DISPEL
ITS DISCRIMINATION IN SERVICES AND FACILITIES BY A SHOWING OF LOWER
COSTS IN ITS TRANSACTIONS WITH THE VARIETY STORES.  WE AGREE WITH THE
COMMISSION THAT THE LANGUAGE OF THE ACT, WHEN CONSIDERED IN ITS
ENTIRETY, WILL NOT SUPPORT THIS CONSTRUCTION. 


"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  ...  ." 

THIS PRICE DISCRIMINATION PROVISION IS HEDGED WITH QUALIFICATIONS. 
AN EXCEPTION IS MADE FOR PRICE DIFFERENTIALS "WHICH MAKE ONLY DUE
ALLOWANCE FOR DIFFERENCES IN THE COST OF MANUFACTURE, SALE, OR
DELIVERY."  CARE WAS TAKEN THAT PRICE CHANGES ARE NOT OUTLAWED WHERE
MADE IN RESPONSE TO CHANGING MARKET CONDITIONS.  FINALLY, SEC. 2(A)
CODIFIES THE RULE OF UNITED STATES V. COLGATE & CO., 250 U.S. 300
(1919), PROTECTING THE RIGHT OF A PERSON IN COMMERCE TO SELECT HIS "OWN
CUSTOMERS IN BONA FIDE TRANSACTIONS AND NOT IN RESTRAINT OF TRADE." 

SUBSECTIONS (C), (D), AND (E), ON THE OTHER HAND, UNQUALIFIEDLY MAKE
UNLAWFUL CERTAIN BUSINESS PRACTICES OTHER THAN PRICE DISCRIMINATIONS. 
(FN6)  SUBSECTION (C) APPLIES TO THE PAYMENT OR RECEIPT OF COMMISSIONS
OR BROKERAGE ALLOWANCES "EXCEPT FOR SERVICES RENDERED."  SUBSECTION (D)
PROHIBITS THE PAYMENT BY A SELLER TO A CUSTOMER FOR ANY SERVICES OR
FACILITIES FURNISHED BY THE LATTER, UNLESS "SUCH PAYMENT  ...  IS
AVAILABLE ON PROPORTIONALLY EQUAL TERMS TO ALL OTHER COMPETING
CUSTOMERS."  SUBSECTION (E), WHICH AS NOTED IS THE PROVISION APPLICABLE
IN THIS CASE, MAKES IT UNLAWFUL FOR A SELLER: 

"TO DISCRIMINATE IN FAVOR OF ONE PURCHASER AGAINST ANOTHER PURCHASER
OR PURCHASERS OF A COMMODITY BOUGHT FOR RESALE  ...  BY  ...
FURNISHING  ...  ANY SERVICES OR FACILITIES CONNECTED WITH THE
PROCESSING, HANDLING, SALE, OR OFFERING FOR SALE OF SUCH COMMODITY SO
PURCHASED UPON TERMS NOT ACCORDED TO ALL PURCHASERS ON PROPORTIONALLY
EQUAL TERMS." 

IN TERMS, THE PROSCRIPTIONS OF THESE THREE SUBSECTIONS ARE ABSOLUTE. 
UNLIKE SEC.  2(A), NONE OF THEM REQUIRES, AS PROOF OF A PRIMA FACIE
VIOLATION, A SHOWING THAT THE ILLICIT PRACTICE HAS HAD AN INJURIOUS OR
DESTRUCTIVE EFFECT ON COMPETITION.  (FN7)  SIMILARLY, NONE HAS ANY
BUILT-IN DEFENSIVE MATTER, AS DOES SEC. 2(A).  SIMPLICITY'S CONTENTIONS
BOIL DOWN TO AN ARGUMENT THAT THE EXCULPATORY PROVISIONS WHICH CONGRESS
HAS MADE EXPRESSLY APPLICABLE ONLY TO PRICE DISCRIMINATIONS ARE SOMEHOW
INCLUDED AS "JUSTIFICATIONS" FOR DISCRIMINATIONS IN SERVICES OR
FACILITIES BY SEC. 2(B), (FN8) WHICH PROVIDES THAT: 

"UPON PROOF BEING MADE, AT ANY HEARING ON A COMPLAINT UNDER THIS
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."    WE HOLD THAT THE KEY WORD
"JUSTIFICATION" CAN BE READ NO MORE BROADLY THAN TO ALLOW REBUTTAL OF
THE RESPECTIVE OFFENSES IN ONE OF THE WAYS EXPRESSLY MADE AVAILABLE BY
CONGRESS.  THUS, A DISCRIMINATION IN PRICES MAY BE REBUTTED BY A
SHOWING UNDER ANY OF THE SEC. 2(A) PROVISOS, OR UNDER THE SEC. 2(B)
PROVISO (FN9) - ALL OF WHICH BY THEIR TERMS APPLY TO PRICE
DISCRIMINATIONS.  ON THE OTHER HAND, THE ONLY ESCAPE CONGRESS HAS
PROVIDED FOR DISCRIMINATIONS IN SERVICES OR FACILITIES IS THE
PERMISSION TO MEET COMPETITION AS FOUND IN THE SEC. 2(B) PROVISO.  WE
CANNOT SUPPLY WHAT CONGRESS HAS STUDIOUSLY OMITTED.  (FN10) 

SIMPLICITY'S ARGUMENTS TO THE CONTRARY ARE BASED ESSENTIALLY ON THE
GROUND THAT IT WOULD BE "BAD LAW AND BAD ECONOMICS" TO MAKE
DISCRIMINATIONS UNLAWFUL EVEN WHERE THEY MAY BE ACCOUNTED FOR BY COST
DIFFERENTIALS OR WHERE THERE IS NO COMPETITIVE INJURY.  (FN11)
ENTIRELY ASIDE FROM THE FACT THAT THIS COURT IS NOT IN A POSITION TO
REVIEW THE ECONOMIC WISDOM OF CONGRESS, WE CANNOT SAY THAT THE
LEGISLATIVE DECISION TO TREAT PRICE AND OTHER DISCRIMINATIONS
DIFFERENTLY IS WITHOUT A RATIONAL BASIS.  IN ALLOWING A "COST
JUSTIFICATION" FOR PRICE DISCRIMINATIONS AND NOT FOR OTHERS, CONGRESS
COULD VERY WELL HAVE FELT THAT SELLERS WOULD BE FORCED TO CONFINE THEIR
DISCRIMINATORY PRACTICES TO PRICE DIFFERENTIALS, WHERE THEY COULD BE
MORE READILY DETECTED AND WHERE IT WOULD BE MUCH EASIER TO MAKE
ACCURATE COMPARISONS WITH ANY ALLEGED COST SAVINGS.  (FN12)  BIDDLE
PURCHASING CO. V. FEDERAL TRADE COMM'N, 96 F.2D 687, 692 (C.A.2D CIR.
1938).  AND, WITH RESPECT TO THE ABSENCE OF COMPETITIVE INJURY
REQUIREMENTS, IT SUFFICES TO SAY THAT THE ANTITRUST LAWS ARE NOT
STRANGERS TO THE POLICY OF NIPPING POTENTIALLY DESTRUCTIVE PRACTICES
BEFORE THEY REACH FULL BLOOM.  CF. KLOR'S, INC., V. BROADWAY-HALE
STORES, 359 U.S. 207 (1959).  (FN13) 

OUR CONCLUSIONS ARE FURTHER CONFIRMED BY THE HISTORICAL SETTING OF
THE ROBINSON-PATMAN AMENDMENTS TO SEC. 2 OF THE CLAYTON ACT.  AS
ORIGINALLY WORDED IN 1914 (38 STAT. 730), SEC. 2 APPLIED ONLY TO PRICE
DISCRIMINATIONS, AND THEN ONLY WHERE THE EFFECT OF SUCH DISCRIMINATION
WAS "TO SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY
IN ANY LINE OF COMMERCE."  (FN14)  FURTHERMORE, A PROVISO EXCEPTED
PRICE DISCRIMINATIONS BASED ON "DIFFERENCES IN THE  ...  QUANTITY OF
THE COMMODITY SOLD," REGARDLESS OF WHETHER THE DIFFERENCES IN QUANTITY
RESULTED IN CORRESPONDING COST DIFFERENTIALS. 

A LENGTHY INVESTIGATION CONDUCTED IN THE 1930'S BY THE FEDERAL TRADE
COMMISSION DISCLOSED THAT SEVERAL LARGE CHAIN BUYERS WERE EFFECTIVELY
AVOIDING SEC. 2 BY TAKING ADVANTAGE OF GAPS IN ITS COVERAGE.  BECAUSE
OF THEIR ENORMOUS PURCHASING POWER, THESE CHAINS WERE ABLE TO EXACT
PRICE CONCESSIONS, BASED ON DIFFERENCES IN QUANTITY, WHICH FAR EXCEEDED
ANY RELATED COST SAVINGS TO THE SELLER.  CONSEQUENTLY, THE SELLER WAS
FORCED TO RAISE PRICES EVEN FURTHER ON SMALLER QUANTITY LOTS IN ORDER
TO COVER THE CONCESSIONS MADE TO THE LARGE PURCHASERS.  COMPARABLE
COMPETITIVE ADVANTAGES WERE OBTAINED BY THE LARGE PURCHASERS IN SEVERAL
WAYS OTHER THAN DIRECT PRICE CONCESSIONS.  REBATES WERE INDUCED FOR
"BROKERAGE FEES," EVEN THOUGH NO BROKERAGE SERVICES HAD BEEN
PERFORMED.  "ADVERTISING ALLOWANCES" WERE PAID BY THE SELLERS TO THE
LARGE BUYERS IN RETURN FOR CERTAIN PROMOTIONAL SERVICES UNDERTAKEN BY
THE LATTER.  SOME SELLERS FURNISHED SPECIAL SERVICES OR FACILITIES TO
THE CHAIN BUYERS.  LACKING THE PURCHASING POWER TO DEMAND COMPARABLE
ADVANTAGES, THE SMALL INDEPENDENT STORES WERE AT A HOPELESS COMPETITIVE
DISADVANTAGE.  (FN15) 

THE ROBINSON-PATMAN AMENDMENTS WERE ENACTED TO ELIMINATE THESE
INEQUITIES.  THE EXCEPTION TO PRICE DISCRIMINATIONS BASED ON
QUANTITATIVE DIFFERENCES WAS LIMITED TO THOSE MAKING "ONLY DUE
ALLOWANCE FOR DIFFERENCES IN  ...  COST."  AS NOTED ABOVE, FALSE
BROKERAGE ALLOWANCES AND THE PAYING FOR OR FURNISHING OF
NONPROPORTIONAL SERVICES OR FACILITIES WERE BANNED OUTRIGHT.  THE
PORTION OF SEC. 2(B) PRECEDING THE PROVISO, ON WHICH SIMPLICITY RELIES,
WAS INSERTED IN THE HOUSE BILL FOR THE SOLE PURPOSE OF LAYING DOWN
"DIRECTIONS WITH REFERENCE TO PROCEDURE INCLUDING A STATEMENT WITH
RESPECT TO BURDEN OF PROOF."  (FN16)  IT WAS CLEARLY NOT INTENDED TO
HAVE ANY INDEPENDENT SUBSTANTIVE WEIGHT OF ITS OWN.  (FN17) 

WE HOLD, THEREFORE, THAT NEITHER "COST-JUSTIFICATION" NOR AN ABSENCE
OF COMPETITIVE INJURY MAY CONSTITUTE "JUSTIFICATION" OF A PRIMA FACIE
SEC. 2(E) VIOLATION.  (FN18)  THE JUDGMENT OF THE COURT OF APPEALS MUST
ACCORDINGLY BE REVERSED INSOFAR AS IT SET ASIDE AND REMANDED THE
COMMISSION'S ORDER AND AFFIRMED AS TO THE REMAINDER.  IT IS SO
ORDERED. 

FN1  THE COMPLAINT WAS IN TWO COUNTS, THE FIRST BEING UNDER THE
FEDERAL TRADE COMMISSION ACT.  THIS COUNT WAS DISMISSED.  THE SECOND
COUNT, WHICH IS THE ONLY ONE BEFORE US, INVOLVES CERTAIN SUBSECTIONS OF
SEC. 2 OF THE CLAYTON ACT, 15 U.S.C. SEC. 13.  FOR READY REFERENCE WE
QUOTE SEC. 2 IN ITS ENTIRETY: 

"(A)  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE,
IN THE COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO
DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF
LIKE GRADE AND QUALITY, WHERE EITHER OR ANY OF THE PURCHASES INVOLVED
IN SUCH DISCRIMINATION ARE IN COMMERCE, WHERE SUCH COMMODITIES ARE SOLD
FOR USE, CONSUMPTION, OR RESALE WITHIN THE UNITED STATES OR ANY
TERRITORY THEREOF OR THE DISTRICT OF COLUMBIA OR ANY INSULAR POSSESSION
OR OTHER PLACE UNDER THE JURISDICTION OF THE UNITED STATES, AND WHERE
THE EFFECT OF SUCH DISCRIMINATION MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE, OR TO
INJURE, DESTROY, OR PREVENT COMPETITION WITH ANY PERSON WHO EITHER
GRANTS OR KNOWINGLY RECEIVES THE BENEFIT OF SUCH DISCRIMINATION, OR
WITH CUSTOMERS OF EITHER OF THEM: 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:  PROVIDED, HOWEVER, THAT THE
FEDERAL TRADE COMMISSION MAY, AFTER DUE INVESTIGATION AND HEARING TO
ALL INTERESTED PARTIES, FIX AND ESTABLISH QUANTITY LIMITS, AND REVISE
THE SAME AS IT FINDS NECESSARY, AS TO PARTICULAR COMMODITIES OR CLASSES
OF COMMODITIES, WHERE IT FINDS THAT AVAILABLE PURCHASERS IN GREATER
QUANTITIES ARE SO FEW AS TO RENDER DIFFERENTIALS ON ACCOUNT THEREOF
UNJUSTLY DISCRIMINATORY OR PROMOTIVE OF MONOPOLY IN ANY LINE OF
COMMERCE; AND THE FOREGOING SHALL THEN NOT BE CONSTRUED TO PERMIT
DIFFERENTIALS BASED ON DIFFERENCES IN QUANTITIES GREATER THAN THOSE SO
FIXED AND ESTABLISHED:  AND PROVIDED FURTHER, THAT NOTHING HEREIN
CONTAINED SHALL PREVENT PERSONS ENGAGED IN SELLING GOODS, WARES, OR
MERCHANDISE IN COMMERCE FROM SELECTING THEIR OWN CUSTOMERS IN BONA FIDE
TRANSACTIONS AND NOT IN RESTRAINT OF TRADE:  AND PROVIDED FURTHER, THAT
NOTHING HEREIN CONTAINED SHALL PREVENT PRICE CHANGES FROM TIME TO TIME
WHERE IN RESPONSE TO CHANGING CONDITIONS AFFECTING THE MARKET FOR OR
THE MARKETABILITY OF THE GOODS CONCERNED, SUCH AS BUT NOT LIMITED TO
ACTUAL OR IMMINENT DETERIORATION OF PERISHABLE GOODS, OBSOLESCENCE OF
SEASONAL GOODS, DISTRESS SALES UNDER COURT PROCESS, OR SALES IN GOOD
FAITH IN DISCONTINUANCE OF BUSINESS IN THE GOODS CONCERNED. 

"(B)  UPON PROOF BEING MADE, AT ANY HEARING ON A COMPLAINT UNDER THIS
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. 

"(C)  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE,
IN THE COURSE OF SUCH COMMERCE, TO PAY OR GRANT, OR TO RECEIVE OR
ACCEPT, ANYTHING OF VALUE AS A COMMISSION, BROKERAGE, OR OTHER
COMPENSATION, OR ANY ALLOWANCE OR DISCOUNT IN LIEU THEREOF, EXCEPT FOR
SERVICES RENDERED IN CONNECTION WITH THE SALE OR PURCHASE OF GOODS,
WARES, OR MERCHANDISE, EITHER TO THE OTHER PARTY TO SUCH TRANSACTION OR
TO AN AGENT, REPRESENTATIVE, OR OTHER INTERMEDIARY THEREIN WHERE SUCH
INTERMEDIARY IS ACTING IN FACT FOR OR IN BEHALF, OR IS SUBJECT TO THE
DIRECT OR INDIRECT CONTROL, OF ANY PARTY TO SUCH TRANSACTION OTHER THAN
THE PERSON BY WHOM SUCH COMPENSATION IS SO GRANTED OR PAID. 

"(D)  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE TO
PAY OR CONTRACT FOR THE PAYMENT OF ANYTHING OF VALUE TO OR FOR THE
BENEFIT OF A CUSTOMER OF SUCH PERSON IN THE COURSE OF SUCH COMMERCE AS
COMPENSATION OR IN CONSIDERATION FOR ANY SERVICES OR FACILITIES
FURNISHED BY OR THROUGH SUCH CUSTOMER IN CONNECTION WITH THE
PROCESSING, HANDLING, SALE, OR OFFERING FOR SALE OF ANY PRODUCTS OR
COMMODITIES MANUFACTURED, SOLD, OR OFFERED FOR SALE BY SUCH PERSON,
UNLESS SUCH PAYMENT OR CONSIDERATION IS AVAILABLE ON PROPORTIONALLY
EQUAL TERMS TO ALL OTHER CUSTOMERS COMPETING IN THE DISTRIBUTION OF
SUCH PRODUCTS OR COMMODITIES. 

"(E)  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON TO DISCRIMINATE IN
FAVOR OF ONE PURCHASER AGAINST ANOTHER PURCHASER OR PURCHASERS OF A
COMMODITY BOUGHT FOR RESALE, WITH OR WITHOUT PROCESSING, BY CONTRACTING
TO FURNISH OR FURNISHING, OR BY CONTRIBUTING TO THE FURNISHING OF, ANY
SERVICES OR FACILITIES CONNECTED WITH THE PROCESSING, HANDLING, SALE,
OR OFFERING FOR SALE OF SUCH COMMODITY SO PURCHASED UPON TERMS NOT
ACCORDED TO ALL PURCHASERS ON PROPORTIONALLY EQUAL TERMS. 

"(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." 

FN2  JUDGE WASHINGTON DISSENTED ON THE "COST-JUSTIFICATION" ISSUE,
WHILE JUDGE BURGER WAS IN DISSENT ON THE COMPETITIVE INJURY QUESTION. 

FN3  IN DOLLAR VOLUME, SIMPLICITY'S PERCENTAGE-OF-INDUSTRY TOTAL IS
SOMEWHAT LOWER, DUE TO THE FACT THAT ITS PRICES ARE AMONG THE LOWEST IN
THE INDUSTRY. 

FN4  IT SHOULD BE NOTED THAT SIMPLICITY HAS APPARENTLY ACTED ENTIRELY
IN GOOD FAITH.  WHILE THE SERVICES AND FACILITIES DESCRIBED IN THE BODY
OF THE OPINION ARE ADMITTEDLY FURNISHED FREE ONLY TO THE VARIETY
STORES, SIMPLICITY ASSERTS THAT OTHER SERVICES AND FACILITIES ARE
FURNISHED ONLY TO THE SMALLER CUSTOMERS.  THESE CLAIMED SERVICES
INCLUDE:  A STAFF OF 12 YOUNG LADIES TRAVELS THROUGHOUT THE COUNTRY
GIVING FASHION SHOWS AND SEWING DEMONSTRATIONS IN SCHOOLS, 4-H CLUBS
AND THE LIKE.  THESE DEMONSTRATIONS ARE COORDINATED THROUGH THE LOCAL
FABRIC STORES TO ASSIST THE LATTER IN PUSHING SALES BOTH OF PATTERNS
AND OF FABRICS.  LARGE PROMOTIONAL POSTERS, PORTRAYING FABRICS AND
FASHION TRENDS, ARE FURNISHED MONTHLY TO THE FABRIC STORES.  "FLYERS,"
OR BROCHURES, DESIGNED, PRINTED AND DISTRIBUTED BY SIMPLICITY SOLELY
FOR THE SMALL MERCHANT, TELL HIM (IN THE WORDS OF SIMPLICITY'S
PRESIDENT) "WHAT THE PROPER SOURCES OF SUPPLY ARE IN NEW YORK, WHAT THE
TRENDS ARE, HOW TO TRIM HIS WINDOWS, HOW TO RUN CERTAIN ASPECTS OF HIS
DEPARTMENT AND A GREAT DEAL OF OTHER MATERIAL."  A MONTHLY PUBLICATION
CALLED THE "SIMPLICITY PATTERN BOOK" IS SOLD THROUGH FABRIC STORES AT
AN ANNUAL LOSS TO SIMPLICITY OF OVER $100,000.  THE PUBLICATION IS
DESIGNED TO "GLAMORIZE AND DRAMATIZE FOR THE CONSUMER AND FOR THE
MERCHANT THE TEXTILES AND TRENDS THROUGHOUT THE COUNTRY." 

THESE SERVICES AND FACILITIES ARE APPARENTLY AVAILABLE TO THE VARIETY
STORES, BUT ARE NOT USED BY THEM BECAUSE OF THEIR METHOD OF DOING
BUSINESS.  THUS, SIMPLICITY CLAIMS THAT THE FABRIC STORES RECEIVE
SERVICES AND FACILITIES, VALUED BY SIMPLICITY AT MORE THAN $1,000,000
ANNUALLY, WHICH IN FACT IF NOT IN LAW ARE NOT USED BY THE VARIETY
STORES.  THE PARTIES DID NOT EXPLORE, BEFORE THE COMMISSION, THE
POSSIBILITY THAT THIS TAILORING OF SERVICES AND FACILITIES TO MEET THE
DIFFERENT NEEDS OF TWO CLASSES OF CUSTOMERS IN FACT CONSTITUTED
"PROPORTIONALLY EQUAL TERMS."  AND, OF COURSE, THIS POINT WAS NOT
RAISED IN THE COURT OF APPEALS OR IN THIS COURT.  WE NOTE IN PASSING,
HOWEVER, THAT THE COMMISSION HAS INDICATED A WILLINGNESS TO GIVE A
RELATIVELY BROAD SCOPE TO THE STANDARD OF PROPORTIONAL EQUALITY UNDER
SECS. 2(D) AND 2(E).  SEE LEVER BROTHERS CO., 50 F.T.C. 494, 512
(1953).   ("SEC.  2(D) DOES NOT PROHIBIT A SELLER FROM PAYING FOR
SERVICES OF VARIOUS TYPES."  A "PLAN PROVIDING PAYMENT FOR PROMOTIONAL
SERVICES AND FACILITIES  ...  MUST BE HONEST IN ITS PURPOSE AND FAIR
AND REASONABLE IN ITS APPLICATION.")  SEE ALSO PROCTER & GAMBLE
DISTRIBUTING CO., 50 F.T.C. 513 (1953); COLGATE-PALMOLIVE-PEET CO., 50
F.T.C. 525 (1953); REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE
TO STUDY THE ANTITRUST LAWS 189-190 (1955).  SINCE THE ISSUE IS NOT
PROPERLY BEFORE US, WE OF COURSE DO NOT PASS ON IT. 

FN5  SIMPLICITY ARGUES THAT THE EXAMINER "AFFIRMATIVELY FOUND AN
ABSENCE OF COMPETITIVE INJURY."  THIS VIEW WAS APPARENTLY ADOPTED BY
THE COURT OF APPEALS.  103 U.S. APP. D.C., AT 378, 258 F.2D, AT 678. 
WE DO NOT SO READ THE RECORD, HOWEVER.  WHAT THE EXAMINER SAID WAS THAT
"THERE IS NO SHOWING OF COMPETITIVE INJURY." 

FN6  SUBSECTION (F) IS A COROLLARY TO SEC. 2(A), MAKING IT UNLAWFUL
"KNOWINGLY TO INDUCE OR RECEIVE" A PRICE DISCRIMINATION BARRED BY THE
LATTER.  SEE AUTOMATIC CANTEEN CO. V. FEDERAL TRADE COMM'N, 346 U.S. 61
(1953).    FN7  SIMPLICITY CONCEDES THIS, IN EFFECT, BUT ARGUES THAT IT
SHOULD BE ALLOWED UNDER SEC. 2(B) TO "JUSTIFY" THE SEC. 2(E) VIOLATION
BY MAKING AN AFFIRMATIVE SHOWING OF ABSENCE OF COMPETITIVE INJURY. 

FN8  IN ALLOWING A SHOWING OF "COST-JUSTIFICATION" UNDER SEC. 2(B),
THE COURT OF APPEALS NEGATED ANY INFERENCE THAT IT WAS THEREBY
IMPORTING "SEC.  2(A) CRITERIA AS MATTERS OF DEFENSE TO A SECTION 2(E)
CHARGE."  RATHER, IT HELD THAT "THE JUSTIFICATION TO BE SHOWN UNDER THE
FIRST CLAUSE OF SEC. 2(B) AS TO A SEC. 2(E) CHARGE OF DISCRIMINATION IN
'FACILITIES FURNISHED' TO VARIOUS CUSTOMERS, WOULD DEPEND UPON THE
FACTS IN A PARTICULAR CASE."  103 U.S. APP. D.C., AT 381, 258 F.2D, AT
681.  ON THIS THEORY, THE LIMITS OF THE JUSTIFICATION WHICH COULD BE
SHOWN WOULD BE ESTABLISHED BY LITIGATION, ON A CASE-TO-CASE BASIS. 

FN9  SEE STANDARD OIL CO. V. FEDERAL TRADE COMM'N, 340 U.S. 231
(1951). 

FN10  THE COURTS OF APPEALS, PRIOR TO THIS CASE, HAD UNIFORMLY
REJECTED THE ARGUMENT THAT SEC. 2(E) VIOLATIONS WERE SUBJECT TO A COST
JUSTIFICATION DEFENSE OR REQUIRED A SHOWING OF ADVERSE EFFECT ON
COMPETITION.  ELIZABETH ARDEN, INC., V. FEDERAL TRADE COMM'N, 156 F.2D
132 (C.A.2D CIR. 1946)(COMPETITIVE INJURY); CORN PRODUCTS REFINING CO.
V. FEDERAL TRADE COMM'N, 144 F.2D 211, 219 (C.A. 7TH CIR. 1944), AFF'D
ON OTHER GROUNDS 324 U.S. 726 (COMPETITIVE INJURY); SOUTHGATE BROKERAGE
CO. V. FEDERAL TRADE COMM'N, 150 F.2D 607, 610 (C.A. 4TH CIR.
1945)(DICTUM AS TO COMPETITIVE INJURY); GREAT ATLANTIC & PACIFIC TEA
CO. V. FEDERAL TRADE COMM'N, 106 F.2D 667 (C.A. 3D CIR. 1939)(DICTUM AS
TO COST-JUSTIFICATION); OLIVER BROS., INC., V. FEDERAL TRADE COMM'N,
102 F.2D 763, 767 (C.A. 4TH CIR. 1939)(DICTUM AS TO COMPETITIVE
INJURY).  IT DOES NOT APPEAR THAT ANY COURT OF APPEALS HAD PREVIOUSLY
BEEN ASKED TO DECIDE WHETHER AN ABSENCE OF COMPETITIVE INJURY COULD
CONSTITUTE A "JUSTIFICATION" UNDER SEC. 2(B). 

FN11  COMPARE THE REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE
TO STUDY THE ANTITRUST LAWS (1955).  THE COMMITTEE RECOGNIZED THAT AS
OF THAT DATE SUBSECTIONS (C), (D) AND (E) HAD BEEN UNIFORMLY
INTERPRETED AS NOT REQUIRING A SHOWING OF COMPETITIVE INJURY, AND AS
NOT ALLOWING A COST-JUSTIFICATION DEFENSE.  PP. 187-193.  IT EXPRESSED
DISAGREEMENT WITH THE DESIRABILITY OF THIS RESULT, IN VIEW OF WHAT IT
DEEMED THE "BROADER ANTITRUST OBJECTIVES," AND RECOMMENDED THAT SEC.
2(C) BE CHANGED BY LEGISLATION AND SEC.  2(D) AND (E) BY "INTERPRETIVE
REFORM."  P. 193. 

FN12  DURING CONGRESSIONAL DEBATES ON THE BILL, THERE WERE CONTINUAL
REFERENCES TO THE SUBSECTION (C), (D) AND (E) PRACTICES AS "SECRET"
DISCRIMINATIONS.  SEE, E.G., 80 CONG.  REC. 8126, 8127, 8132, 8135,
8137, 8226. 

FN13  COMPARE NORTHERN PACIFIC R. CO. V. UNITED STATES, 356 U.S. 1
(1958); UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150 (1940),
WHICH CONTAIN EXAMPLES OF PER SE VIOLATIONS UNDER THE SHERMAN ACT.  IT
IS NOT WITHOUT SIGNIFICANCE THAT EARLIER VERSIONS OF BOTH THE HOUSE AND
SENATE BILLS WOULD HAVE OUTLAWED EVEN PRICE DISCRIMINATIONS WITHOUT
REGARD TO THEIR EFFECT UPON COMPETITION.  H.R. 8442, 74TH CONG., 1ST
SESS.; S. 3154, 74TH CONG., 1ST SESS. 

FN14  THIS LANGUAGE WAS RETAINED IN SEC. 2(A) UNDER THE ROBINSON
PATMAN ACT AMENDMENT, AND THE FOLLOWING WAS ADDED, "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." 

FN15  FINAL REPORT ON THE CHAIN-STORE INVESTIGATION, S. DOC. NO. 4,
74TH CONG., 1ST SESS. 

FN16  H.R. REP. NO. 2287, 74TH CONG., 2D SESS., P. 16. 

FN17  AS REPORTED OUT OF COMMITTEE, THE EQUIVALENT OF SEC. 2(B)
(WHICH WAS SEC. 2(E) IN THE HOUSE BILL) APPLIED ONLY TO PRICE
DISCRIMINATIONS.  DURING THE FLOOR DEBATE, CONGRESSMAN MCLAUGHLIN
INTRODUCED AN AMENDMENT WHICH WOULD ADD "OR SERVICES OR FACILITIES
FURNISHED" AT APPROPRIATE PLACES IN THE SUBSECTION.  HE SAID, "MR.
CHAIRMAN, THIS IS A COMMITTEE AMENDMENT AGREED TO UNANIMOUSLY BY THE
COMMITTEE  ...  .  IT SIMPLY ALLOWS A SELLER TO MEET NOT ONLY
COMPETITION IN PRICE OF OTHER COMPETITORS BUT ALSO COMPETITION IN
SERVICES AND FACILITIES FURNISHED."  80 CONG. REC. 8225.  THE AMENDMENT
WAS ADOPTED WITHOUT FURTHER COMMENT.  THROUGHOUT THE DEBATE, WHAT
REFERENCE THERE WAS TO THIS SUBSECTION (OTHER THAN TO THE PROVISO) WAS
TO THE EFFECT THAT IT WAS A "PROCEDURAL" OR "BURDEN OF PROOF"
PROVISION.  SEE, E.G., 80 CONG. REC. 8110, 9414, 9418.  CONGRESSMAN
PATMAN, REFERRING TO IT AS A "BURDEN OF PROOF" PROVISION, SAID "LET ME
ANALYZE THAT FOR YOU.  WHAT DOES THAT MEAN?  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."  80 CONG.
REC.  8231.  THIS STATEMENT, COMING FROM ONE OF THE AUTHORS OF THE
BILL, MAKES IT CLEAR BEYOND PERADVENTURE THAT THE PROVISION IN QUESTION
WAS NOT INTENDED TO OPERATE AS A SOURCE OF SUBSTANTIVE DEFENSES.  SEE
ALSO AUTOMATIC CANTEEN CO. V. FEDERAL TRADE COMM'N, SUPRA, 346 U.S., AT
78. 

THE HISTORY OF THE SENATE BILL IS NOT HELPFUL.  AS REPORTED OUT OF
COMMITTEE, IT CONTAINED NEITHER A PROVISION COMPARABLE TO SEC. 2(B) NOR
ONE COMPARABLE TO SEC. 2(E).  S. REP. NO. 1502, 74TH CONG., 2D SESS.  A
PROVISION IDENTICAL TO SEC. 2(B) WAS ADOPTED AS A FLOOR AMENDMENT AT A
TIME WHEN THE BILL DID NOT IN TERMS EVEN COVER THE FURNISHING OF
SERVICES AND FACILITIES.  80 CONG. REC. 6435-6436.  THE SHORT DEBATE ON
THE AMENDMENT IS NOT ENLIGHTENING. 

FN18  WHILE BOTH OF THESE QUESTIONS HAVE BEEN PRESENTED TO US IN
TERMS OF THE "JUSTIFICATION" CLAUSE OF SEC. 2(B), WE ARE EQUALLY
CONVINCED THAT THE COMPETITIVE INJURY AND COST-DIFFERENTIAL CLAUSES OF
SEC. 2(A) CANNOT BE READ DIRECTLY INTO SEC. 2(E).  ELIZABETH ARDEN,
INC., V. FEDERAL TRADE COMM'N, SUPRA, NOTE 10; CORN PRODUCTS REFINING
CO. V. FEDERAL TRADE COMM'N, SUPRA, NOTE 10; GREAT ATLANTIC & PACIFIC
TEA CO. V. FEDERAL TRADE COMM'N, SUPRA, NOTE 10.  IT IS TRUE THAT, IN
REFERENCE TO THE COST-DIFFERENTIAL CLAUSE, WE HAVE SAID, "TIME AND
AGAIN THERE WAS RECOGNITION IN CONGRESS OF A FREEDOM TO ADOPT AND PASS
ON TO BUYERS THE BENEFITS OF MORE ECONOMICAL PROCESSES."  AUTOMATIC
CANTEEN CO. V. FEDERAL TRADE COMM'N, SUPRA, 346 U.S., AT 72.  BUT THE
CONTEXTS OF THE STATEMENTS REFERRED TO SHOW THAT THE BENEFITS WERE TO
BE MADE AVAILABLE IN PRICE DIFFERENTIALS OR NOT AT ALL.  SEE, E.G., 80
CONG. REC. 8106-8107, 8111-8112, 8114, 8127-8128, 8137, 9415; H.R. REP.
NO. 2287, 74TH CONG., 2D SESS.  SEE ALSO NOTES 12 AND 13, SUPRA.
..END :













UPHAUS V. WYMAN 360 U.S. 72 


NO. 34.  ARGUED NOVEMBER 17-18, 1958 - DECIDED JUNE 8, 1959 - 101 N.H.
139, 136 A.2D 221, AFFIRMED. 


IN AN INVESTIGATION CONDUCTED BY THE ATTORNEY GENERAL OF NEW HAMPSHIRE
ON BEHALF OF THE STATE LEGISLATURE UNDER A RESOLUTION DIRECTING HIM TO
INVESTIGATE VIOLATIONS OF THE STATE SUBVERSIVE ACTIVITIES ACT AND TO
DETERMINE WHETHER "SUBVERSIVE PERSONS" WERE THEN IN THE STATE,
APPELLANT, WHO IS EXECUTIVE DIRECTOR OF A CORPORATION ORGANIZED UNDER
THE LAWS OF THE STATE AND OPERATING A SUMMER CAMP IN THE STATE,
TESTIFIED CONCERNING HIS OWN ACTIVITIES BUT REFUSED TO COMPLY WITH
SUBPOENAS DUCES TECUM CALLING FOR THE PRODUCTION OF THE NAMES OF ALL
PERSONS WHO ATTENDED THE CAMP DURING 1954 AND 1955.  PURSUANT TO STATE
PROCEDURE, HE WAS BROUGHT BEFORE A STATE COURT.  THERE HE DID NOT PLEAD
THE PRIVILEGE AGAINST SELF-INCRIMINATION BUT CLAIMED THAT THE
INVESTIGATION WAS BEYOND THE POWER OF THE STATE, THAT THE RESOLUTION
WAS TOO VAGUE, THAT THE DOCUMENTS SOUGHT WERE NOT RELEVANT TO THE
INQUIRY, AND THAT TO COMPEL HIM TO PRODUCE THEM WOULD VIOLATE HIS
RIGHTS OF FREE SPEECH AND ASSOCIATION.  THESE CLAIMS WERE DECIDED
AGAINST HIM AND, PERSISTING IN HIS REFUSAL, HE WAS ADJUDGED GUILTY OF
CIVIL CONTEMPT AND ORDERED COMMITTED TO JAIL UNTIL HE COMPLIED WITH THE
ORDER.  HELD:  THE JUDGMENT AND SENTENCE ARE SUSTAINED.  PP. 73-82. 

(A)  THE NEW HAMPSHIRE SUBVERSIVE ACTIVITIES ACT OF 1951 AND THE
RESOLUTION AUTHORIZING AND DIRECTING THE STATE ATTORNEY GENERAL TO
INVESTIGATE VIOLATIONS THEREOF HAVE NOT BEEN SUPERSEDED BY THE SMITH
ACT, AS AMENDED.  PENNSYLVANIA V. NELSON, 350 U.S. 497, DISTINGUISHED. 
PP. 76-77. 

(B)  THE RIGHT OF THE STATE TO REQUIRE THE PRODUCTION OF CORPORATE
PAPERS OF A STATE-CHARTERED CORPORATION TO DETERMINE WHETHER CORPORATE
ACTIVITIES VIOLATE STATE POLICY STANDS UNIMPAIRED EITHER BY THE SMITH
ACT OR BY PENNSYLVANIA V. NELSON, SUPRA.  P. 77. 

(C)  ON THE RECORD IN THIS CASE, THE NEXUS BETWEEN THE CORPORATION,
ITS SUMMER CAMP AND SUBVERSIVE ACTIVITIES WHICH MIGHT THREATEN THE
SECURITY OF THE STATE JUSTIFIES THE INVESTIGATION; THE STATE'S
INTERESTS IN SELF-PRESERVATION OUTWEIGH INDIVIDUAL RIGHTS IN
ASSOCIATIONAL PRIVACY; AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT DOES NOT PRECLUDE THE STATE FROM COMPELLING PRODUCTION OF THE
NAMES OF THE GUESTS.  SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, AND
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. ALABAMA,
357 U.S. 449, DISTINGUISHED.  PP. 77-81. 

(D)  SINCE THE DEMAND FOR THE DOCUMENTS WAS A LEGITIMATE ONE, THE
JUDGMENT OF CONTEMPT FOR REFUSAL TO PRODUCE THEM IS VALID; AND THE
SENTENCE OF IMPRISONMENT UNTIL APPELLANT PRODUCES THEM DOES NOT
CONSTITUTE SUCH CRUEL AND UNUSUAL PUNISHMENT AS TO BE A DENIAL OF DUE
PROCESS.  PP. 81-82. 

UPHAUS V. WYMAN, ATTORNEY GENERAL OF NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE AGAIN ON APPEAL FROM A JUDGMENT OF CIVIL CONTEMPT
ENTERED AGAINST APPELLANT BY THE MERRIMACK COUNTY COURT AND AFFIRMED BY
THE SUPREME COURT OF NEW HAMPSHIRE.  IT ARISES OUT OF APPELLANT'S
REFUSAL TO PRODUCE CERTAIN DOCUMENTS BEFORE A NEW HAMPSHIRE LEGISLATIVE
INVESTIGATING COMMITTEE WHICH WAS AUTHORIZED AND DIRECTED TO DETERMINE,
INTER ALIA, WHETHER THERE WERE SUBVERSIVE PERSONS OR ORGANIZATIONS
PRESENT IN THE STATE OF NEW HAMPSHIRE.  UPON THE FIRST APPEAL FROM THE
NEW HAMPSHIRE COURT, 100 N.H. 436, 130 A.2D 278, WE VACATED THE
JUDGMENT AND REMANDED THE CASE TO IT, 355 U.S. 16, FOR CONSIDERATION IN
THE LIGHT OF SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234 (1957).  THAT COURT
REAFFIRMED ITS FORMER DECISION, 101 N.H. 139, 136 A.2D 221, DEEMING
SWEEZY NOT TO CONTROL THE ISSUES IN THE INSTANT CASE.  FOR REASONS
WHICH WILL APPEAR, WE AGREE WITH THE SUPREME COURT OF NEW HAMPSHIRE. 

AS IN SWEEZY, THE ATTORNEY GENERAL OF NEW HAMPSHIRE, WHO HAD BEEN
CONSTITUTED A ONE-MAN LEGISLATIVE INVESTIGATING COMMITTEE BY JOINT
RESOLUTION OF THE LEGISLATURE, (FN1) WAS CONDUCTING A PROBE OF
SUBVERSIVE ACTIVITIES IN THE STATE.  IN THE COURSE OF HIS INVESTIGATION
THE ATTORNEY GENERAL CALLED APPELLANT, EXECUTIVE DIRECTOR OF WORLD
FELLOWSHIP, INC., A VOLUNTARY CORPORATION ORGANIZED UNDER THE LAWS OF
NEW HAMPSHIRE AND MAINTAINING A SUMMER CAMP IN THE STATE.  APPELLANT
TESTIFIED CONCERNING HIS OWN ACTIVITIES, BUT REFUSED TO COMPLY WITH TWO
SUBPOENAS DUCES TECUM WHICH CALLED FOR THE PRODUCTION OF CERTAIN
CORPORATE RECORDS FOR THE YEARS 1954 AND 1955.  THE INFORMATION SOUGHT
CONSISTED OF:  (1) A LIST OF THE NAMES OF ALL THE CAMP'S
NONPROFESSIONAL EMPLOYEES FOR THOSE TWO SUMMER SEASONS; (2) THE
CORRESPONDENCE WHICH APPELLANT HAD CARRIED ON WITH AND CONCERNING THOSE
PERSONS WHO CAME TO THE CAMP AS SPEAKERS; AND (3) THE NAMES OF ALL
PERSONS WHO ATTENDED THE CAMP DURING THE SAME PERIODS OF TIME.  MET
WITH APPELLANT'S REFUSAL, THE ATTORNEY GENERAL, IN ACCORDANCE WITH
STATE PROCEDURE, N.H. REV. STAT. ANN., C. 491, SECS. 19, 20, PETITIONED
THE MERRIMACK COUNTY COURT TO CALL APPELLANT BEFORE IT AND REQUIRE
COMPLIANCE WITH THE SUBPOENAS. 

IN COURT, APPELLANT AGAIN REFUSED TO PRODUCE THE INFORMATION.  HE
CLAIMED THAT BY THE SMITH ACT, (FN2) AS CONSTRUED BY THIS COURT IN
PENNSYLVANIA V. NELSON, 350 U.S. 497 (1956), CONGRESS HAD SO COMPLETELY
OCCUPIED THE FIELD OF SUBVERSIVE ACTIVITIES THAT THE STATES WERE
WITHOUT POWER TO INVESTIGATE IN THAT AREA.  ADDITIONALLY, HE CONTENDED
THAT THE DUE PROCESS CLAUSE PRECLUDED ENFORCEMENT OF THE SUBPOENAS,
FIRST, BECAUSE THE RESOLUTION UNDER WHICH THE ATTORNEY GENERAL WAS
AUTHORIZED TO OPERATE WAS VAGUE AND, SECOND, BECAUSE THE DOCUMENTS
SOUGHT WERE NOT RELEVANT TO THE INQUIRY.  FINALLY, APPELLANT ARGUED
THAT ENFORCEMENT WOULD VIOLATE HIS RIGHTS OF FREE SPEECH AND
ASSOCIATION. 

THE MERRIMACK COUNTY COURT SUSTAINED APPELLANT'S OBJECTION TO THE
PRODUCTION OF THE NAMES OF THE NONPROFESSIONAL EMPLOYEES.  THE ATTORNEY
GENERAL TOOK NO APPEAL FROM THAT RULING, AND IT IS NOT BEFORE US.
APPELLANT'S OBJECTIONS TO THE PRODUCTION OF THE NAMES OF THE CAMP'S
GUESTS WERE OVERRULED, AND HE WAS ORDERED TO PRODUCE THEM.  UPON HIS
REFUSAL, HE WAS ADJUDGED IN CONTEMPT OF COURT AND ORDERED COMMITTED TO
JAIL UNTIL HE SHOULD HAVE COMPLIED WITH THE COURT ORDER.  ON THE DEMAND
FOR THE CORRESPONDENCE AND THE OBJECTION THERETO, THE TRIAL COURT MADE
NO RULING BUT TRANSFERRED THE QUESTION TO THE SUPREME COURT OF NEW
HAMPSHIRE.  THAT COURT AFFIRMED THE TRIAL COURT'S ACTION IN REGARD TO
THE GUEST LIST.  CONCERNING THE REQUESTED PRODUCTION OF THE
CORRESPONDENCE, THE SUPREME COURT ENTERED NO ORDER, BUT DIRECTED THAT
ON REMAND THE TRIAL COURT "MAY EXERCISE ITS DISCRETION WITH RESPECT TO
THE ENTRY OF AN ORDER TO ENFORCE THE COMMAND OF THE SUBPOENA FOR THE
PRODUCTION OF CORRESPONDENCE."  100 N.H., AT 448, 130 A.2D, AT 287.  NO
REMAND HAVING YET BEEN EFFECTED, THE TRIAL COURT HAS NOT ACTED UPON
THIS PHASE OF THE CASE, AND THERE IS NO FINAL JUDGMENT REQUIRING THE
APPELLANT TO PRODUCE THE LETTERS.  WE THEREFORE DO NOT TREAT WITH THAT
QUESTION.  28 U.S.C. SEC. 1257.  SEE RADIO STATION WOW V. JOHNSON, 326
U.S. 120, 123-124 (1945).  WE NOW PASS TO A CONSIDERATION OF THE SOLE
QUESTION BEFORE US, NAMELY, THE VALIDITY OF THE ORDER OF CONTEMPT FOR
REFUSAL TO PRODUCE THE LIST OF GUESTS AT WORLD FELLOWSHIP, INC., DURING
THE SUMMER SEASONS OF 1954 AND 1955.  IN ADDITION TO THE ARGUMENTS
APPELLANT MADE TO THE TRIAL COURT, HE URGES HERE THAT THE "INDEFINITE
SENTENCE" IMPOSED UPON HIM CONSTITUTES SUCH CRUEL AND UNUSUAL
PUNISHMENT AS TO BE A DENIAL OF DUE PROCESS. 

APPELLANT VIGOROUSLY CONTENDS THAT THE NEW HAMPSHIRE SUBVERSIVE
ACTIVITIES ACT OF 1951 (FN3) AND THE RESOLUTION CREATING THE COMMITTEE
HAVE BEEN SUPERSEDED BY THE SMITH ACT, AS AMENDED.  (FN4) IN SUPPORT OF
THIS POSITION APPELLANT CITES PENNSYLVANIA V. NELSON, SUPRA.  THE
ARGUMENT IS THAT NELSON, WHICH INVOLVED A PROSECUTION UNDER A STATE
SEDITION LAW, HELD THAT "CONGRESS HAS INTENDED TO OCCUPY THE FIELD OF
SEDITION."  THIS RULE OF DECISION, IT IS CONTENDED, SHOULD EMBRACE
LEGISLATIVE INVESTIGATIONS MADE PURSUANT TO AN EFFORT BY THE
LEGISLATURE TO INFORM ITSELF OF THE PRESENCE OF SUBVERSIVES WITHIN THE
STATE AND POSSIBLY TO ENACT LAWS IN THE SUBVERSIVE FIELD.  THE
APPELLANT'S ARGUMENT SWEEPS TOO BROAD.  IN NELSON ITSELF WE SAID THAT
THE "PRECISE HOLDING OF THE COURT  ...  IS THAT THE SMITH ACT  ...
WHICH PROHIBITS THE KNOWING ADVOCACY OF THE OVERTHROW OF THE GOVERNMENT
OF THE UNITED STATES BY FORCE AND VIOLENCE, SUPERSEDES THE
ENFORCEABILITY OF THE PENNSYLVANIA SEDITION ACT WHICH PROSCRIBED THE
SAME CONDUCT."  350 U.S., AT 499.  THE BASIS OF NELSON THUS REJECTS THE
NOTION THAT IT STRIPPED THE STATES OF THE RIGHT TO PROTECT THEMSELVES. 
ALL THE OPINION PROSCRIBED WAS A RACE BETWEEN FEDERAL AND STATE
PROSECUTORS TO THE COURTHOUSE DOOR.  THE OPINION MADE CLEAR THAT A
STATE COULD PROCEED WITH PROSECUTIONS FOR SEDITION AGAINST THE STATE
ITSELF; THAT IT CAN LEGITIMATELY INVESTIGATE IN THIS AREA FOLLOWS A
FORTIORI.  IN SWEEZY V. NEW HAMPSHIRE, SUPRA, WHERE THE SAME CONTENTION
WAS MADE AS TO THE IDENTICAL STATE ACT, IT WAS DENIED SUB SILENTIO. 
NOR DID OUR OPINION IN NELSON HOLD THAT THE SMITH ACT HAD PROSCRIBED
STATE ACTIVITY IN PROTECTION OF ITSELF EITHER FROM ACTUAL OR THREATENED
"SABOTAGE OR ATTEMPTED VIOLENCE OF ALL KINDS."  IN FOOTNOTE 8 OF THE
OPINION IT IS POINTED OUT THAT THE STATE HAD FULL POWER TO DEAL WITH
INTERNAL CIVIL DISTURBANCES.  THUS REGISTRATION STATUTES, QUO WARRANTO
PROCEEDINGS AS TO SUBVERSIVE CORPORATIONS, THE SUBVERSIVE INSTIGATION
OF RIOTS AND A HOST OF OTHER SUBJECTS DIRECTLY AFFECTING STATE SECURITY
FURNISH GRIST FOR THE STATE'S LEGISLATIVE MILL.  MOREOVER, THE RIGHT OF
THE STATE TO REQUIRE THE PRODUCTION OF CORPORATE PAPERS OF A STATE
CHARTERED CORPORATION IN AN INQUIRY TO DETERMINE WHETHER CORPORATE
ACTIVITY IS VIOLATIVE OF STATE POLICY IS, OF COURSE, NOT TOUCHED UPON
IN NELSON AND TODAY STANDS UNIMPAIRED, EITHER BY THE SMITH ACT OR THE
NELSON OPINION. 

APPELLANT'S OTHER OBJECTIONS CAN BE CAPSULED INTO THE SINGLE QUESTION
OF WHETHER NEW HAMPSHIRE, UNDER THE FACTS HERE, IS PRECLUDED FROM
COMPELLING THE PRODUCTION OF THE DOCUMENTS BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  LET US FIRST CLEAR AWAY SOME OF THE
UNDERBRUSH NECESSARILY SURROUNDING THE CASE BECAUSE OF ITS SETTING. 

FIRST, THE ACADEMIC AND POLITICAL FREEDOMS DISCUSSED IN SWEEZY V. NEW
HAMPSHIRE, SUPRA, ARE NOT PRESENT HERE IN THE SAME DEGREE, SINCE WORLD
FELLOWSHIP IS NEITHER A UNIVERSITY NOR A POLITICAL PARTY.  NEXT, SINCE
QUESTIONS CONCERNING THE AUTHORITY OF THE COMMITTEE TO ACT AS IT DID
ARE QUESTIONS OF STATE LAW, DREYER V. ILLINOIS, 187 U.S. 71, 84 (1902),
WE ACCEPT AS CONTROLLING THE NEW HAMPSHIRE SUPREME COURT'S CONCLUSION
THAT "THE LEGISLATIVE HISTORY MAKES IT CLEAR BEYOND A REASONABLE DOUBT
THAT IT (THE LEGISLATURE) DID AND DOES DESIRE AN ANSWER TO THESE
QUESTIONS."  101 N.H., AT 140, 136 A.2D, AT 221-222.  FINALLY, WE
ASSUME, WITHOUT DECIDING, THAT UPHAUS HAD SUFFICIENT STANDING TO ASSERT
ANY RIGHTS OF THE GUESTS WHOSE IDENTITY THE COMMITTEE SEEKS TO
DETERMINE.  SEE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE V. ALABAMA, 357 U.S. 449 (1958).  THE INTEREST OF THE GUESTS AT
WORLD FELLOWSHIP IN THEIR ASSOCIATIONAL PRIVACY HAVING BEEN ASSERTED,
WE HAVE FOR DECISION THE FEDERAL QUESTION OF WHETHER THE PUBLIC
INTERESTS OVERBALANCE THESE CONFLICTING PRIVATE ONES.  WHETHER THERE
WAS "JUSTIFICATION" FOR THE PRODUCTION ORDER TURNS ON THE
"SUBSTANTIALITY" OF NEW HAMPSHIRE'S INTERESTS IN OBTAINING THE IDENTITY
OF THE GUESTS WHEN WEIGHED AGAINST THE INDIVIDUAL INTERESTS WHICH THE
APPELLANT ASSERTS.  NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE V. ALABAMA, SUPRA. 

WHAT WAS THE INTEREST OF THE STATE?  THE ATTORNEY GENERAL WAS
COMMISSIONED (FN5) TO DETERMINE IF THERE WERE ANY SUBVERSIVE PERSONS
(FN6) WITHIN NEW HAMPSHIRE.  THE OBVIOUS STARTING POINT OF SUCH AN
INQUIRY WAS TO LEARN WHAT PERSONS WERE WITHIN THE STATE.  IT IS
THEREFORE CLEAR THAT THE REQUESTS RELATE DIRECTLY TO THE LEGISLATURE'S
AREA OF INTEREST, I.E., THE PRESENCE OF SUBVERSIVES IN THE STATE, AS
ANNOUNCED IN ITS RESOLUTION.  NOR WAS THE DEMAND OF THE SUBPOENA
BURDENSOME; AS TO TIME, ONLY A FEW MONTHS OF EACH OF THE TWO YEARS WERE
INVOLVED; AS TO PLACE, ONLY THE CAMP CONDUCTED BY THE CORPORATION; NOR
AS TO THE LISTS OF NAMES, WHICH INCLUDED ABOUT 300 EACH YEAR. 

MOREOVER, THE ATTORNEY GENERAL HAD VALID REASON TO BELIEVE THAT THE
SPEAKERS AND GUESTS AT WORLD FELLOWSHIP MIGHT BE SUBVERSIVE PERSONS
WITHIN THE MEANING OF THE NEW HAMPSHIRE ACT.  THE SUPREME COURT OF NEW
HAMPSHIRE FOUND UPHAUS' CONTRARY POSITION "UNRELATED TO REALITY." 
ALTHOUGH THE EVIDENCE AS TO THE NEXUS BETWEEN WORLD FELLOWSHIP AND
SUBVERSIVE ACTIVITIES MAY NOT BE CONCLUSIVE, WE BELIEVE IT SUFFICIENTLY
RELEVANT TO SUPPORT THE ATTORNEY GENERAL'S ACTION.  THE NEW HAMPSHIRE
DEFINITION OF SUBVERSIVE PERSONS WAS BORN OF THE LEGISLATIVE
DETERMINATION THAT THE COMMUNIST MOVEMENT POSED A SERIOUS THREAT TO THE
SECURITY OF THE STATE.  THE RECORD REVEALS THAT APPELLANT HAD
PARTICIPATED IN "COMMUNIST FRONT" ACTIVITIES AND THAT "NOT LESS THAN
NINETEEN SPEAKERS INVITED BY UPHAUS TO TALK AT WORLD FELLOWSHIP HAD
EITHER BEEN MEMBERS OF THE COMMUNIST PARTY OR HAD CONNECTIONS OR
AFFILIATIONS WITH IT OR WITH ONE OR MORE OF THE ORGANIZATIONS CITED AS
SUBVERSIVE OR COMMUNIST CONTROLLED IN THE UNITED STATES ATTORNEY
GENERAL'S LIST."  100 N.H., AT 442, 130 A.2D, AT 283.  WHILE THE
ATTORNEY GENERAL'S LIST IS DESIGNED FOR THE LIMITED PURPOSE OF
DETERMINING FITNESS FOR FEDERAL EMPLOYMENT, WIEMAN V. UPDEGRAFF, 344
U.S. 183 (1952), AND GUILT BY ASSOCIATION REMAINS A THOROUGHLY
DISCREDITED DOCTRINE, IT IS WITH A LEGISLATIVE INVESTIGATION - NOT A
CRIMINAL PROSECUTION - THAT WE DEAL HERE.  CERTAINLY THE INVESTIGATORY
POWER OF THE STATE NEED NOT BE CONSTRICTED UNTIL SUFFICIENT EVIDENCE OF
SUBVERSION IS GATHERED TO JUSTIFY THE INSTITUTION OF CRIMINAL
PROCEEDINGS. 

THE NEXUS BETWEEN WORLD FELLOWSHIP AND SUBVERSIVE ACTIVITIES
DISCLOSED BY THE RECORD FURNISHED ADEQUATE JUSTIFICATION FOR THE
INVESTIGATION WE HERE REVIEW.  THE ATTORNEY GENERAL SOUGHT TO LEARN IF
SUBVERSIVE PERSONS WERE IN THE STATE BECAUSE OF THE LEGISLATIVE
DETERMINATION THAT SUCH PERSONS, STATUTORILY DEFINED WITH A VIEW TOWARD
THE COMMUNIST PARTY, POSED A SERIOUS THREAT TO THE SECURITY OF THE
STATE.  THE INVESTIGATION WAS, THEREFORE, UNDERTAKEN IN THE INTEREST OF
SELF-PRESERVATION, "THE ULTIMATE VALUE OF ANY SOCIETY," DENNIS V.
UNITED STATES, 341 U.S. 494, 509 (1951).  THIS GOVERNMENTAL INTEREST
OUTWEIGHS INDIVIDUAL RIGHTS IN AN ASSOCIATIONAL PRIVACY WHICH, HOWEVER
REAL IN OTHER CIRCUMSTANCES, CF. NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE V. ALABAMA, SUPRA, WERE HERE TENUOUS AT
BEST.  THE CAMP WAS OPERATING AS A PUBLIC ONE, FURNISHING BOTH BOARD
AND LODGING TO PERSONS APPLYING THEREFOR.  AS TO THEM, NEW HAMPSHIRE
LAW REQUIRES THAT WORLD FELLOWSHIP, INC., MAINTAIN A REGISTER, OPEN TO
INSPECTION OF SHERIFFS AND POLICE OFFICERS.  (FN7)  IT IS CONTENDED
THAT THE LIST MIGHT BE "CIRCULATED THROUGHOUT THE STATES AND THE
ATTORNEY GENERALS THROUGHOUT THE STATES HAVE CROSS-INDEXED FILES, SO
THAT ANY GUEST WHOSE NAME IS MENTIONED IN THAT KIND OF PROCEEDING
IMMEDIATELY BECOMES SUSPECT, EVEN IN HIS OWN PLACE OF RESIDENCE." 
RECORD, P. 7.  THE RECORD BEFORE US, HOWEVER, ONLY REVEALS A REPORT TO
THE LEGISLATURE OF NEW HAMPSHIRE MADE BY THE ATTORNEY GENERAL IN
ACCORDANCE WITH THE REQUIREMENTS OF THE RESOLUTION.  WE RECOGNIZE, OF
COURSE, THAT COMPLIANCE WITH THE SUBPOENA WILL RESULT IN EXPOSING THE
FACT THAT THE PERSONS THEREIN NAMED WERE GUESTS AT WORLD FELLOWSHIP. 
BUT SO LONG AS A COMMITTEE MUST REPORT TO ITS LEGISLATIVE PARENT,
EXPOSURE - IN THE SENSE OF DISCLOSURE - IS AN INESCAPABLE INCIDENT OF
AN INVESTIGATION INTO THE PRESENCE OF SUBVERSIVE PERSONS WITHIN A
STATE.  AND THE GOVERNMENTAL INTEREST IN SELF-PRESERVATION IS
SUFFICIENTLY COMPELLING TO SUBORDINATE THE INTEREST IN ASSOCIATIONAL
PRIVACY OF PERSONS WHO, AT LEAST TO THE EXTENT OF THE GUEST
REGISTRATION STATUTE, MADE PUBLIC AT THE INCEPTION THE ASSOCIATION THEY
NOW WISH TO KEEP PRIVATE.  IN THE LIGHT OF SUCH A RECORD WE CONCLUDE
THAT THE STATE'S INTEREST HAS NOT BEEN "PRESSED, IN THIS INSTANCE, TO A
POINT WHERE IT HAS COME INTO FATAL COLLISION WITH THE OVERRIDING"
CONSTITUTIONALLY PROTECTED RIGHTS OF APPELLANT AND THOSE HE MAY
REPRESENT.  CANTWELL V. CONNECTICUT, 310 U.S. 296, 307 (1940).    WE
NOW REACH THE QUESTION OF THE VALIDITY OF THE SENTENCE.  THE JUDGMENT
OF CONTEMPT ORDERS THE APPELLANT CONFINED UNTIL HE PRODUCES THE
DOCUMENTS CALLED FOR IN THE SUBPOENAS.  HE HIMSELF ADMITTED TO THE
COURT THAT ALTHOUGH THEY WERE AT HAND, NOT ONLY HAD HE FAILED TO BRING
THEM WITH HIM TO COURT, BUT THAT, FURTHER, HE HAD NO INTENTION OF
PRODUCING THEM.  IN VIEW OF APPELLANT'S UNJUSTIFIED REFUSAL WE THINK
THE ORDER A PROPER ONE.  AS WAS SAID IN GREEN V. UNITED STATES, 356
U.S. 165, 197 (1958) (DISSENTING OPINION): 

"BEFORE GOING ANY FURTHER, PERHAPS IT SHOULD BE EMPHASIZED THAT WE
ARE NOT AT ALL CONCERNED WITH THE POWER OF COURTS TO IMPOSE CONDITIONAL
IMPRISONMENT FOR THE PURPOSE OF COMPELLING A PERSON TO OBEY A VALID
ORDER.  SUCH COERCION, WHERE THE DEFENDANT CARRIES THE KEYS TO FREEDOM
IN HIS WILLINGNESS TO COMPLY WITH THE COURT'S DIRECTIVE, IS ESSENTIALLY
A CIVIL REMEDY DESIGNED FOR THE BENEFIT OF OTHER PARTIES AND HAS QUITE
PROPERLY BEEN EXERCISED FOR CENTURIES TO SECURE COMPLIANCE WITH
JUDICIAL DECREES." 

WE HAVE CONCLUDED THAT THE COMMITTEE'S DEMAND FOR THE DOCUMENTS WAS A
LEGITIMATE ONE; IT FOLLOWS THAT THE JUDGMENT OF CONTEMPT FOR REFUSAL TO
PRODUCE THEM IS VALID.  WE DO NOT IMPUGN APPELLANT'S GOOD FAITH IN THE
ASSERTION OF WHAT HE BELIEVED TO BE HIS RIGHTS.  BUT THREE COURTS HAVE
DISAGREED WITH HIM IN INTERPRETING THOSE RIGHTS.  IF APPELLANT CHOOSES
TO ABIDE BY THE RESULT OF THE ADJUDICATION AND OBEY THE ORDER OF NEW
HAMPSHIRE'S COURTS, HE NEED NOT FACE JAIL.  IF, HOWEVER, HE CONTINUES
TO DISOBEY, WE FIND ON THIS RECORD NO CONSTITUTIONAL OBJECTION TO THE
EXERCISE OF THE TRADITIONAL REMEDY OF CONTEMPT TO SECURE COMPLIANCE. 
AFFIRMED. 

FN1  "RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES IN GENERAL
COURT CONVENED: 

"THAT THE ATTORNEY GENERAL IS HEREBY AUTHORIZED AND DIRECTED TO MAKE
FULL AND COMPLETE INVESTIGATION WITH RESPECT TO VIOLATIONS OF THE
SUBVERSIVE ACTIVITIES ACT OF 1951 AND TO DETERMINE WHETHER SUBVERSIVE
PERSONS AS DEFINED IN SAID ACT ARE PRESENTLY LOCATED WITHIN THIS STATE
...  ."  N.H. LAWS, 1953, C. 307. 

THE INVESTIGATION AUTHORIZED BY THIS RESOLUTION WAS CONTINUED BY N.H.
LAWS, 1955, C. 197. 

FN2  18 U.S.C. SEC. 2385 (1956). 

FN3  N.H. REV. STAT. ANN., 1955, C. 588, SECS. 1-16. 

FN4  NOTE 2, SUPRA. 

FN5  NOTE 1, SUPRA. 

FN6  SECTION 1 OF THE SUBVERSIVE ACTIVITIES ACT, N.H. REV. STAT.
ANN., 1955, C. 588, SECS. 1-16, DEFINES "SUBVERSIVE PERSON": 

"'SUBVERSIVE PERSON' MEANS ANY PERSON WHO COMMITS, ATTEMPTS TO
COMMIT, OR AIDS IN THE COMMISSION, OR ADVOCATES, ABETS, ADVISES OR
TEACHES, BY ANY MEANS ANY PERSON TO COMMIT, ATTEMPT TO COMMIT, OR AID
IN THE COMMISSION OF ANY ACT INTENDED TO OVERTHROW, DESTROY OR ALTER,
OR TO ASSIST IN THE OVERTHROW, DESTRUCTION OR ALTERATION OF, THE
CONSTITUTIONAL FORM OF THE GOVERNMENT OF THE UNITED STATES, OR OF THE
STATE OF NEW HAMPSHIRE, OR ANY POLITICAL SUBDIVISION OF EITHER OF THEM,
BY FORCE, OR VIOLENCE; OR WHO IS A MEMBER OF A SUBVERSIVE ORGANIZATION
OR A FOREIGN SUBVERSIVE ORGANIZATION." 

FN7  SINCE 1927, THERE HAS BEEN IN EFFECT THE FOLLOWING STATUTE IN
NEW HAMPSHIRE: 

"ALL HOTEL KEEPERS AND ALL PERSONS KEEPING PUBLIC LODGING HOUSES,
TOURIST CAMPS, OR CABINS SHALL KEEP A BOOK OR CARD SYSTEM AND CAUSE
EACH GUEST TO SIGN THEREIN HIS OWN LEGAL NAME OR NAME BY WHICH HE IS
COMMONLY KNOWN.  SAID BOOK OR CARD SYSTEM SHALL AT ALL TIMES BE OPEN TO
THE INSPECTION OF THE SHERIFF OR HIS DEPUTIES AND TO ANY POLICE OFFICER
...  ."  N.H. REV. STAT. ANN., 1955, C. 353, SEC. 3.

THE ATTORNEY GENERAL REPRESENTS THAT THE PUBLIC CAMP OF WORLD
FELLOWSHIP, INC., IS CLEARLY WITHIN THE PURVIEW OF THIS STATUTE. 
ALTHOUGH THE LISTS SOUGHT WERE MORE EXTENSIVE THAN THOSE REQUIRED BY
THE STATUTE, IT APPEARS THAT MOST OF THE NAMES WERE RECORDED PURSUANT
TO IT. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

THE COURT HOLDS TODAY THAT THE CONSTITUTIONALLY PROTECTED RIGHTS OF
SPEECH AND ASSEMBLY OF APPELLANT AND THOSE WHOM HE MAY REPRESENT ARE TO
BE SUBORDINATED TO NEW HAMPSHIRE'S LEGISLATIVE INVESTIGATION BECAUSE,
AS APPLIED IN THE DEMANDS MADE ON HIM, THE INVESTIGATION IS RATIONALLY
CONNECTED WITH A DISCERNIBLE LEGISLATIVE PURPOSE.  WITH DUE RESPECT FOR
MY BROTHERS' VIEWS, I DO NOT AGREE THAT A SHOWING OF ANY REQUISITE
LEGISLATIVE PURPOSE OR OTHER STATE INTEREST THAT CONSTITUTIONALLY CAN
SUBORDINATE APPELLANT'S RIGHTS IS TO BE FOUND IN THIS RECORD.  EXPOSURE
PURELY FOR THE SAKE OF EXPOSURE IS NOT SUCH A VALID SUBORDINATING
PURPOSE.  WATKINS V. UNITED STATES, 354 U.S. 178, 187, 200; SWEEZY V.
NEW HAMPSHIRE, 354 U.S. 234, NAACP V. ALABAMA, 357 U.S. 449.  THIS
RECORD, I THINK, NOT ONLY FAILS TO REVEAL ANY INTEREST OF THE STATE
SUFFICIENT TO SUBORDINATE APPELLANT'S CONSTITUTIONALLY PROTECTED
RIGHTS, BUT AFFIRMATIVELY SHOWS THAT THE INVESTIGATORY OBJECTIVE WAS
THE IMPERMISSIBLE ONE OF EXPOSURE FOR EXPOSURE'S SAKE.  I THEREFORE
DISSENT FROM THE JUDGMENT OF THE COURT. 

I FULLY APPRECIATE THE DELICACY OF THE JUDICIAL TASK OF QUESTIONING
THE WORKINGS OF A LEGISLATIVE INVESTIGATION.  A PROPER REGARD FOR THE
PRIMACY OF THE LEGISLATIVE FUNCTION IN ITS OWN FIELD, AND FOR THE BROAD
SCOPE OF THE INVESTIGATORY POWER TO ACHIEVE LEGISLATIVE ENDS,
NECESSARILY SHOULD CONSTRAIN THE JUDICIARY TO INDULGE EVERY REASONABLE
INTENDMENT IN FAVOR OF THE VALIDITY OF LEGISLATIVE INQUIRY.  HOWEVER,
OUR FRAME OF GOVERNMENT ALSO IMPOSES ANOTHER INESCAPABLE DUTY UPON THE
JUDICIARY, THAT OF PROTECTING THE CONSTITUTIONAL RIGHTS OF FREEDOM OF
SPEECH AND ASSEMBLY FROM IMPROPER INVASION, WHETHER BY THE NATIONAL OR
THE STATE LEGISLATURES.  SEE WATKINS V. UNITED STATES, SUPRA; SWEEZY V.
NEW HAMPSHIRE, SUPRA; NAACP V. ALABAMA, SUPRA.  WHERE THAT INVASION IS
AS CLEAR AS I THINK THIS RECORD DISCLOSES, THE APPELLANT IS ENTITLED TO
OUR JUDGMENT OF REVERSAL. 

JUDICIAL CONSIDERATION OF THE COLLISION OF THE INVESTIGATORY FUNCTION
WITH CONSTITUTIONALLY PROTECTED RIGHTS OF SPEECH AND ASSEMBLY IS A
RECENT DEVELOPMENT IN OUR CONSTITUTIONAL LAW.  THE COURT HAS OFTEN
EXAMINED THE VALIDITY UNDER THE FEDERAL CONSTITUTION OF FEDERAL AND
STATE STATUTES AND EXECUTIVE ACTION IMPOSING CRIMINAL AND OTHER
TRADITIONAL SANCTIONS ON CONDUCT ALLEGED TO BE PROTECTED BY THE
GUARANTEES OF FREEDOM OF SPEECH AND OF ASSEMBLY.  THE ROLE OF THE STATE
IMPOSED SANCTIONS OF IMPRISONMENT, FINES AND PROHIBITORY INJUNCTIONS
DIRECTED AGAINST ASSOCIATION OR SPEECH AND THEIR LIMITATIONS UNDER THE
FIRST AND FOURTEENTH AMENDMENTS HAS BEEN CANVASSED QUITE FULLY,
BEGINNING AS EARLY AS GITLOW V. NEW YORK, 268 U.S. 652, AND NEAR V.
MINNESOTA, 283 U.S. 697.  AND OTHER STATE ACTION, SUCH AS DEPRIVATION
OF PUBLIC EMPLOYMENT AND THE DENIAL OF ADMISSION TO A PROFESSION, HAS
ALSO BEEN RECOGNIZED AS BEING SUBJECT TO THE RESTRAINTS OF THE
CONSTITUTION.  SEE, E.G., WIEMAN V. UPDEGRAFF, 344 U.S. 183; CF.
SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232. 

BUT ONLY RECENTLY HAS THE COURT BEEN REQUIRED TO BEGIN A FULL
EXPLORATION OF THE IMPACT OF THE GOVERNMENTAL INVESTIGATORY FUNCTION ON
THESE FREEDOMS.  (FN1)  HERE IS INTRODUCED THE WEIGHTY CONSIDERATION
THAT THE POWER OF INVESTIGATION, WHETHER EXERCISED IN AID OF THE
GOVERNMENTAL LEGISLATIVE POWER, SEE WATKINS V. UNITED STATES, SUPRA, OR
IN AID OF THE GOVERNMENTAL POWER TO ADJUDICATE DISPUTES, SEE NAACP V.
ALABAMA, SUPRA, IS VITAL TO THE FUNCTIONING OF FREE GOVERNMENTS AND IS
THEREFORE NECESSARILY BROAD.  BUT WHERE THE EXERCISE OF THE
INVESTIGATORY POWER COLLIDES WITH CONSTITUTIONALLY GUARANTEED FREEDOMS,
THAT POWER TOO HAS INEVITABLE LIMITATIONS, AND THE DELICATE AND ALWAYS
DIFFICULT ACCOMMODATION OF THE TWO WITH MINIMUM SACRIFICE OF EITHER IS
THE HARD TASK OF THE JUDICIARY AND ULTIMATELY OF THIS COURT. 

IT WAS LOGICAL THAT THE ADVERSE EFFECTS OF UNWANTED PUBLICITY - OF
EXPOSURE - AS CONCOMITANTS OF THE EXERCISE OF THE INVESTIGATORY POWER,
SHOULD COME TO BE RECOGNIZED, IN CERTAIN CIRCUMSTANCES, AS INVADING
PROTECTED FREEDOMS AND OFFENDING CONSTITUTIONAL INHIBITIONS UPON
GOVERNMENTAL ACTIONS.  FOR IN AN ERA OF MASS COMMUNICATIONS AND MASS
OPINION, AND OF INTERNATIONAL TENSIONS AND DOMESTIC ANXIETY, EXPOSURE
AND GROUP IDENTIFICATION BY THE STATE OF THOSE HOLDING UNPOPULAR AND
DISSIDENT VIEWS ARE FRAUGHT WITH SUCH SERIOUS CONSEQUENCES FOR THE
INDIVIDUAL AS INEVITABLY TO INHIBIT SERIOUSLY THE EXPRESSION OF VIEWS
WHICH THE CONSTITUTION INTENDED TO MAKE FREE.  CF. SPEISER V. RANDALL,
357 U.S. 513, 526.  WE GAVE EXPRESSION TO THIS TRUISM IN NAACP V.
ALABAMA:  "THIS COURT HAS RECOGNIZED THE VITAL RELATIONSHIP BETWEEN
FREEDOM TO ASSOCIATE AND PRIVACY IN ONE'S ASSOCIATIONS ...  .
INVIOLABILITY OF PRIVACY IN GROUP ASSOCIATION MAY IN MANY CIRCUMSTANCES
BE INDISPENSABLE TO PRESERVATION OF FREEDOM OF ASSOCIATION,
PARTICULARLY WHERE A GROUP ESPOUSES DISSIDENT BELIEFS."  357 U.S., AT
462. 

OF COURSE, THE CONSIDERATIONS ENTERING INTO THE WEIGHING OF THE
INTERESTS CONCERNED ARE DIFFERENT WHERE THE PROBLEM IS ONE OF STATE
EXPOSURE IN THE AREA OF ASSEMBLY AND EXPRESSION FROM WHERE THE PROBLEM
IS THAT OF EVALUATING A STATE CRIMINAL OR REGULATORY STATUTE IN THESE
AREAS.  GOVERNMENT MUST HAVE FREEDOM TO MAKE AN APPROPRIATE
INVESTIGATION WHERE THERE APPEARS A RATIONAL CONNECTION WITH THE
LAWMAKING PROCESS, THE PROCESSES OF ADJUDICATION, OR OTHER ESSENTIAL
GOVERNMENTAL FUNCTIONS.  IN THE INVESTIGATORY STAGE OF THE LEGISLATIVE
PROCESS, FOR EXAMPLE, THE SPECIFIC INTEREST OF THE STATE AND THE FINAL
LEGISLATIVE MEANS TO BE CHOSEN TO IMPLEMENT IT ARE ALMOST BY DEFINITION
NOT PRECISELY DEFINED AT THE START OF THE INQUIRY, AND DUE ALLOWANCE
MUST ACCORDINGLY BE MADE.  ALSO, WHEN EXPOSURE IS EVALUATED JUDICIALLY
AS A GOVERNMENTAL SANCTION, THERE SHOULD BE TAKEN INTO ACCOUNT THE
DIFFERENCES BETWEEN IT AND THE MORE TRADITIONAL STATE-INFLICTED PAINS
AND PENALTIES.  TRUE IT IS, THEREFORE, THAT ANY LINE OTHER THAN A
UNIVERSAL SUBORDINATION OF FREE EXPRESSION AND ASSOCIATION TO THE
ASSERTED INTERESTS OF THE STATE IN INVESTIGATION AND EXPOSURE WILL BE
DIFFICULT OF DEFINITION; BUT THIS COURT HAS RIGHTLY TURNED ITS BACK ON
THE ALTERNATIVE OF UNIVERSAL SUBORDINATION OF PROTECTED INTERESTS, AND
WE MUST DEFINE RIGHTS IN THIS AREA THE BEST WE CAN.  THE PROBLEM IS ONE
IN ITS NATURE CALLING FOR TRADITIONAL CASE-BY-CASE DEVELOPMENT OF
PRINCIPLES IN THE VARIOUS PERMUTATIONS OF CIRCUMSTANCES WHERE THE
CONFLICT MAY APPEAR.  BUT GUIDE LINES MUST BE MARKED OUT BY THE
COURTS.  "THIS IS THE INESCAPABLE JUDICIAL TASK IN GIVING SUBSTANTIVE
CONTENT, LEGALLY ENFORCED, TO THE DUE PROCESS CLAUSE, AND IT IS A TASK
ULTIMATELY COMMITTED TO THIS COURT."  SWEEZY V. NEW HAMPSHIRE, 354 U.S.
234, 267 (CONCURRING OPINION).  ON THE FACTS OF THIS CASE I THINK THAT
NEW HAMPSHIRE'S INVESTIGATION, AS APPLIED TO THE APPELLANT, WAS
DEMONSTRABLY AND CLEARLY OUTSIDE THE WIDE LIMITS OF THE POWER WHICH
MUST BE CONCEDED TO THE STATE EVEN THOUGH IT BE ATTENDED BY SOME
EXPOSURE.  IN DEMONSTRATION OF THIS I TURN TO THE DETAILED EXAMINATION
OF THE FACTS WHICH THIS CASE REQUIRES. 

THE APPELLANT, UPHAUS, IS EXECUTIVE DIRECTOR OF A GROUP CALLED WORLD
FELLOWSHIP WHICH RUNS A DISCUSSION PROGRAM AT A SUMMER CAMP IN NEW
HAMPSHIRE, AT WHICH THE PUBLIC IS INVITED TO STAY.  VARIOUS SPEAKERS
COME TO THE CAMP PRIMARILY FOR DISCUSSION OF POLITICAL, ECONOMIC AND
SOCIAL MATTERS.  THE APPELLEE REPORTS THAT UPHAUS AND SOME OF THE
SPEAKERS HAVE BEEN SAID BY THIRD PERSONS TO HAVE A HISTORY OF
ASSOCIATION WITH "COMMUNIST FRONT" MOVEMENTS, TO HAVE FOLLOWED THE
"COMMUNIST LINE," SIGNED AMNESTY PETITIONS AND AMICUS CURIAE BRIEFS,
AND CARRIED ON SIMILAR ACTIVITIES OF A SORT WHICH HAVE RECENTLY BEEN
VIEWED HOSTILELY AND SUSPICIOUSLY BY MANY AMERICANS.  A STRAIN OF
PACIFISM RUNS THROUGH THE APPELLANT'S THINKING, AND THE APPELLEE
APPARENTLY WOULD SEEK TO DETERMINE WHETHER THERE SHOULD BE DRAWN
THEREFROM AN INFERENCE OF HARM FOR OUR INSTITUTIONS; HE CONJECTURES,
OFFICIALLY, WHETHER "THE ADVOCACY OF THIS SO-CALLED PEACE CRUSADE IS
FOR THE PURPOSE OF ACHIEVING A QUICKER AND A CHEAPER OCCUPATION BY THE
SOVIET UNION AND COMMUNISM."  THERE IS NO EVIDENCE THAT ANY ACTIVITY OF
A SORT THAT VIOLATES THE LAW OF NEW HAMPSHIRE OR COULD IN FACT BE
CONSTITUTIONALLY PUNISHED WENT ON AT THE CAMP.  WHAT IS CLEAR IS THAT
THERE WAS SOME SORT OF ASSEMBLAGE AT THE CAMP THAT WAS ORIENTED TOWARD
THE DISCUSSION OF POLITICAL AND OTHER PUBLIC MATTERS.  THE ACTIVITIES
GOING ON WERE THOSE OF PRIVATE CITIZENS.  THE VIEWS EXPOUNDED OBVIOUSLY
WERE MINORITY VIEWS.  BUT THE ASSEMBLAGE WAS, ON ITS FACE, FOR PURPOSES
TO WHICH THE FIRST AND FOURTEENTH AMENDMENTS GIVE CONSTITUTIONAL
PROTECTION AGAINST INCURSION BY THE POWERS OF GOVERNMENT.  CF. SWEEZY
V. NEW HAMPSHIRE, SUPRA, AT 249-251. 

THE INVESTIGATION WITH WHICH THIS CASE IS CONCERNED WAS UNDERTAKEN
UNDER AUTHORITY OF A 1953 RESOLUTION OF THE NEW HAMPSHIRE GENERAL
COURT, N.H. LAWS 1953, C. 307, AND EXTENDED BY AN ENACTMENT IN 1955,
N.H. LAWS, 1955, C. 197.  THE RESOLUTION DIRECTED THE ATTORNEY GENERAL
OF THE STATE (APPELLEE HERE) TO MAKE A "FULL AND COMPLETE
INVESTIGATION" OF "VIOLATIONS OF THE SUBVERSIVE ACTIVITIES ACT OF 1951"
(FN2) AND TO DETERMINE WHETHER "SUBVERSIVE PERSONS AS DEFINED IN SAID
ACT ARE PRESENTLY LOCATED WITHIN THE STATE."  UNDER NEW HAMPSHIRE LAW,
THIS CONSTITUTED THE ATTORNEY GENERAL (WHO IS ORDINARILY THE CHIEF LAW
ENFORCEMENT OFFICIAL OF THE STATE) A ONE-MAN LEGISLATIVE COMMITTEE. 
THE SANCTIONS OF PROSECUTION OF INDIVIDUALS AND DISSOLUTION OF
ORGANIZATIONS FOR VIOLATION OF THE 1951 LAW SEEM TO HAVE BEEN
DISCARDED, WITH THE PASSAGE OF THE RESOLUTION, IN FAVOR OF THE SANCTION
OF EXPOSURE.  A PROVISION OF THE 1951 ACT PROVIDING FOR CONFIDENTIAL
TREATMENT OF MATERIAL REFLECTING ON INDIVIDUALS' LOYALTY WAS MADE
INAPPLICABLE TO THE INVESTIGATION THE ATTORNEY GENERAL WAS DIRECTED TO
CONDUCT, AND THE ATTORNEY GENERAL WAS AUTHORIZED IN SWEEPING TERMS TO
GIVE PUBLICITY TO THE DETAILS OF HIS INVESTIGATION.  A REPORT TO THE
LEGISLATURE OF THE FRUITS OF THE INVESTIGATION WAS TO BE MADE ON THE
FIRST DAY OF THE 1955 LEGISLATIVE SESSION; THE 1955 EXTENSION CALLED
FOR A SIMILAR REPORT TO THE 1957 SESSION.  (FN3)  EFFORTS TO OBTAIN
FROM THE APPELLANT THE DISCLOSURES RELATIVE TO WORLD FELLOWSHIP IN
CONTROVERSY HERE BEGAN DURING THE PERIOD COVERED BY THE 1953
RESOLUTION, BUT HIS FINAL REFUSAL AND THE PROCEEDING FOR CONTEMPT UNDER
REVIEW HERE OCCURRED DURING THE EXTENSION. 

THE FRUITS OF THE FIRST TWO YEARS OF THE INVESTIGATION WERE DELIVERED
TO THE LEGISLATURE IN A COMPREHENSIVE VOLUME ON JANUARY 5, 1955.  THE
ATTORNEY GENERAL URGES THIS REPORT ON OUR CONSIDERATION AS EXTREMELY
RELEVANT TO A CONSIDERATION OF THE INVESTIGATION AS IT RELATES TO
APPELLANT.  I THINK THAT THIS IS QUITE THE CASE; THE REPORT IS AN
OFFICIAL INDICATION OF THE NATURE OF THE INVESTIGATION AND IS, IN FACT,
THE STATED OBJECTIVE OF THE DUTY ASSIGNED BY THE RESOLUTION TO THE
ATTORNEY GENERAL.  IT WAS WITH THIS REPORT BEFORE IT THAT THE
LEGISLATURE RENEWED THE INVESTIGATION, AND IT MUST BE TAKEN AS
CHARACTERIZING THE NATURE OF THE INVESTIGATION BEFORE US. THE REPORT
PROPER IS DIVIDED INTO NUMEROUS SECTIONS.  FIRST IS A SERIES OF GENERAL
AND INTRODUCTORY ESSAYS BY VARIOUS AUTHORS ENTITLED "PERTINENT ASPECTS
OF WORLD COMMUNISM TODAY."  ESSAYS DISCUSS "THE NATURE OF THE RUSSIAN
THREAT"; "THE ROLE OF THE COMMUNIST FRONT ORGANIZATIONS"; "SOME
IMPORTANT ASPECTS OF MARXISM AND MARXISM-LENINISM"; "THE TEST OF A
FRONT ORGANIZATION"; AND "COMMUNISM VS. RELIGION."  GENERAL DESCRIPTIVE
MATTER ON THE COMMUNIST PARTY IN NEW HAMPSHIRE FOLLOWS.  IT HARDLY
NEEDS TO BE SAID THAT THIS INTRODUCTORY MATERIAL WOULD FOCUS ATTENTION
ON THE WHOLE REPORT IN TERMS OF "COMMUNISM" REGARDLESS OF WHAT WAS SAID
ABOUT THE INDIVIDUALS LATER NAMED.  NEXT COMES A GENERAL SECTION TITLED
"COMMUNIST INFLUENCE IN A FIELD OF EDUCATION" WHICH IS REPLETE WITH
NAMES AND BIOGRAPHICAL MATERIAL OF INDIVIDUALS; A SIMILAR SECTION ON
"COMMUNIST INFLUENCE IN THE FIELD OF LABOR"; AND ONE MORE GENERICALLY
CAPTIONED "ORGANIZATIONS," IN WHICH VARIOUS DETAILS AS TO THE
APPELLANT, HIS ORGANIZATION, AND OTHERS ASSOCIATED IN IT ARE
PRESENTED.  LAST COMES A SECTION ENTITLED "INDIVIDUALS" IN WHICH
BIOGRAPHICAL SKETCHES OF 23 PERSONS ARE PRESENTED. 

THE INTRODUCTORY MATTER IN THE VOLUME, TO PUT THE MATTER MILDLY,
SHOWED CONSCIOUSNESS OF THE PRACTICAL EFFECT OF THE CHANGE OF POLICY
FROM JUDICIAL PROSECUTION TO EXPOSURE BY THE ATTORNEY GENERAL OF
PERSONS REPORTED TO BE CONNECTED WITH GROUPS CHARGED TO BE "SUBVERSIVE"
OR "SUBSTANTIALLY COMMUNIST-INFLUENCED."  VIRTUALLY THE ENTIRE "LETTER
OF TRANSMITTAL" OF THE ATTORNEY GENERAL ADDRESSED ITSELF TO DISCUSSING
THE POLICY USED IN THE REPORT IN DISCLOSING THE NAMES OF INDIVIDUALS. 
THE ATTORNEY GENERAL DREW A SIGNIFICANT DISTINCTION AS TO THE NAMES HE
WOULD DISCLOSE:  "PERSONS WITH PAST MEMBERSHIP OR AFFILIATION WITH THE
COMMUNIST PARTY OR SUBSTANTIALLY COMMUNIST-INFLUENCED GROUPS HAVE NOT
BEEN DISCLOSED IN THIS REPORT WHERE THOSE PERSONS HAVE PROVIDED
ASSISTANCE TO THE INVESTIGATION.  IT IS FELT THAT NO GOOD REASONS EXIST
REQUIRING A LISTING OF NAMES OF COOPERATIVE WITNESSES IN THESE
CATEGORIES."  A "FOREWORD" DECLARED THAT "THIS REPORT DEALS WITH A
CONTROVERSIAL SUBJECT," AND, CONCENTRATING ON THE FACT THAT THE REPORT
CONTAINED AN EXTENSIVE LIST OF PERSONS, THEIR ADDRESSES, AND
MISCELLANEOUS ACTIVITIES AND ASSOCIATIONS ATTRIBUTED TO THEM, MADE
SEVERAL DISCLAIMERS.  THE REPORT WAS NOT TO BE CONSIDERED AN INDICTMENT
OF ANY INDIVIDUAL, THE ATTORNEY GENERAL SUITABLY POINTING OUT THAT A
GRAND JURY WAS THE ONLY AUTHORITY IN NEW HAMPSHIRE HAVING THE FORMAL
POWER OF INDICTMENT.  NOR WAS IT "THE RESULT OF AN INQUISITION.  NO
WITNESS IN THIS INVESTIGATION HAS EVER, AT ANY TIME, BEEN TREATED OTHER
THAN COURTEOUSLY."  FINALLY, THE ATTORNEY GENERAL STRESSED THAT "THE
REPORTING OF FACTS HEREIN DOES NOT (NOR SHOULD IT BE TAKEN TO BY ANY
READER) CONSTITUTE A CHARGE AGAINST ANY WITNESS."  HE OBSERVED THAT
"FACTS ARE FACTS  ...  . CONCLUSIONS OF OPPROBRIUM RELATIVE TO ANY
INDIVIDUAL, WHILE WITHIN THE PRIVILEGE OF PERSONAL OPINION, ARE NEITHER
RECOMMENDED NOR INTENDED TO BE ENCOURAGED BY ANY PHRASEOLOGY OF THIS
REPORT."  IN FACT, THE LISTING OF NAMES MIGHT WELL CONTAIN THE NAMES OF
MANY INNOCENT PEOPLE, IMPLIED THE ATTORNEY GENERAL.  THIS WAS
PERMISSIBLE, HE BELIEVED, BECAUSE, AS INTERPRETED IN THE COURTS OF NEW
HAMPSHIRE, "THE SCOPE OF RELEVANT QUESTIONING IN THE INVESTIGATION GOES
FAR BEYOND THE REQUIREMENTS OF INDIVIDUAL FELONIOUS INTENTION.  IN
FACT, THE GENERAL COURT HAS DIRECTED THAT INQUIRY BE MADE TO DETERMINE
THE EXTENT OF INNOCENT OR IGNORANT MEMBERSHIP, AFFILIATION OR SUPPORT
OF SUBVERSIVE ORGANIZATIONS  ...  ." 

THE REPORT CERTAINLY IS ONE THAT WOULD BE SUGGESTED BY THE QUOTED
PARTS OF THE FOREWORD.  NO OPINION WAS, AS A MATTER OF COURSE,
EXPRESSED BY THE ATTORNEY GENERAL AS TO WHETHER ANY PERSON NAMED
THEREIN WAS IN FACT A "SUBVERSIVE PERSON" WITHIN THE MEANING OF THE
STATUTE.  THE REPORT DID NOT DISCLOSE WHETHER ANY INDICTMENTS UNDER THE
1951 ACT WOULD BE SOUGHT AGAINST ANY PERSON.  ITS SOLE RECOMMENDATIONS
FOR LEGISLATION WERE FOR A BROAD EVIDENTIARY STATUTE TO BE APPLIED IN
TRIALS OF PERSONS UNDER THE STATE ACT AS "SUBVERSIVE," WHICH CANNOT
REALLY BE SAID TO HAVE BEEN THE FRUIT OF THE INVESTIGATION, BEING
COPIED FROM A THEN RECENT ACT OF CONGRESS, (FN4) AND WHICH MADE
APPARENTLY NO CHANGE IN THE 1951 LAW'S STANDARD OF GUILT, AND FOR AN
IMMUNITY MEASURE CALCULATED TO FACILITATE FUTURE INVESTIGATIONS.  THE
REPORT, ONCE THE INTRODUCTORY MATERIAL ON COMMUNISM IS DONE WITH,
CONTAINS PRIMARILY AN ASSORTED LIST OF NAMES WITH DESCRIPTIONS OF WHAT
HAD BEEN SAID ABOUT THE NAMED PERSONS.  IN MOST CASES, THE CAVEAT OF
THE ATTORNEY GENERAL THAT THE INFORMATION SHOULD NOT BE UNDERSTOOD AS
INDICATING A VIOLATION OF THE NEW HAMPSHIRE SUBVERSIVE ACTIVITIES ACT
WAS, TO SAY THE LEAST, WELL-TAKEN, IN THE LIGHT OF THE CONDUCT ASCRIBED
TO THEM.  MANY OF THE BIOGRAPHICAL SUMMARIES WOULD STRIKE A DISCERNING
ANALYST AS VERY MILD STUFF INDEED.  IN MANY CASES, A POSITIVE DILIGENCE
WAS DEMONSTRATED IN EFFORTS TO ADD THE NAMES OF INDIVIDUALS TO A LIST
AND THEN RENDER A SCOTCH VERDICT OF "NOT PROVEN" IN REGARD TO THEM. 
THE MOST VIVID EXAMPLE OF THIS IS THE MATERIAL RELATING TO THE
APPELLANT'S GROUP, WORLD FELLOWSHIP.  AFTER SOME INTRODUCTORY PAGES,
THERE COMES EXTENSIVE BIOGRAPHICAL MATERIAL RELATING TO THE REPORTED
MEMBERSHIPS, ASSOCIATIONS, ADVOCACIES, AND SIGNINGS OF OPEN LETTERS ON
THE PART OF CERTAIN SPEAKERS AT THE WORLD FELLOWSHIP CAMP.  A VERY FEW
HAD ADMITTED MEMBERSHIP IN THE COMMUNIST PARTY, OR HAD BEEN
"IDENTIFIED" AS BEING MEMBERS BY THIRD PERSONS GENERALLY NOT NAMED. 
OTHERS WERE SAID TO BE OR TO HAVE BEEN MEMBERS OF "COMMUNIST
INFLUENCED," "FRONT," OR "OFFICIALLY CITED" GROUPS.  SOME WERE SAID TO
HAVE SIGNED OPEN LETTERS AND PETITIONS AGAINST DEPORTATIONS, TO HAVE
CRITICIZED THE FEDERAL BUREAU OF INVESTIGATION, TO HAVE GIVEN FREE
MEDICAL TREATMENT TO COMMUNIST PARTY OFFICIALS, AND THE LIKE.  FINALLY
THE REPORT ADDRESSES ITSELF TO THE REMAINDER OF THE SPEAKERS:
"INFORMATION EASILY AVAILABLE TO THIS OFFICE DOES NOT INDICATE RECORDS
OF AFFILIATION WITH OR SUPPORT OF COMMUNIST CAUSES ON THE PART OF THESE
PEOPLE.  HOWEVER, DUE TO THE BURDEN OF WORK IMPOSED ON THE STAFF OF THE
HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES BY THOUSANDS OF SUCH REQUESTS
RECEIVED FROM ALL OVER THE COUNTRY, IT HAS NOT BEEN POSSIBLE TO CHECK
EACH OF THESE PERSONS THOROUGHLY.  INASMUCH AS NO COMMITTEE OR PUBLIC
AGENCY CAN HOPE TO HAVE ALL THE INFORMATION IN ITS FILES CONCERNING ALL
SUBVERSIVE ACTIVITY ALL OVER THIS COUNTRY, IT IS NOT POSSIBLE FOR THIS
OFFICE TO GUARANTEE THAT THE FOLLOWING INDIVIDUALS DO NOT HAVE SUCH
ACTIVITY IN THEIR BACKGROUNDS.  THEREFORE, IT IS NECESSARY TO REPORT
THEIR IDENTITIES TO THE GENERAL COURT, WITH THE EXPLANATION THAT BASED
UPON WHAT INFORMATION WE HAVE BEEN ABLE TO ASSEMBLE, THE FOLLOWING
INDIVIDUALS WOULD APPEAR AT THIS TIME TO BE THE USUAL CONTINGENT OF
'DUPES' AND UNSUSPECTING PERSONS THAT SURROUND ALMOST EVERY VENTURE
THAT IS INSTIGATED OR PROPELLED BY THE 'PERENNIALS' AND ARTICULATE
APOLOGISTS FOR COMMUNISTS AND SOVIET CHICANERY, BUT OF THIS FACT WE ARE
NOT CERTAIN.  THIS LIST DOES NOT INCLUDE THE MANY PERSONS WHO WERE
MERELY GUESTS  ...  ."  THE NAMES OF 36 PERSONS WITH THEIR ADDRESSES
THEN FOLLOWED.  (FN5) 

THE EMPHASIS OF THE ENTIRE REPORT IS ON INDIVIDUAL GUILT, INDIVIDUAL
NEAR-GUILT, AND INDIVIDUAL QUESTIONABLE BEHAVIOR.  ITS FLAVOR AND TONE,
REGARDLESS OF ITS INTRODUCTORY DISCLAIMERS, CANNOT HELP BUT STIMULATE
READERS TO ATTACH A "BADGE OF INFAMY," WIEMAN V. UPDEGRAFF, 344 U.S.
183, 190-191, TO THE PERSONS NAMED IN IT.  THE AUTHORIZING RESOLUTION
REQUESTED THAT THE ATTORNEY GENERAL ADDRESS HIMSELF TO ASCERTAINING
WHETHER THERE WERE "SUBVERSIVE PERSONS" IN NEW HAMPSHIRE, AND THE
REPORT INDICATES THAT THIS WAS INTERPRETED AS THE MAKING OF LISTS OF
PERSONS WHO WERE EITHER CLASSIFIABLE IN THIS AMORPHOUS CATEGORY, OR
ALMOST SO, AND THE PRESENTING OF THE RESULT, AS A PUBLIC, OFFICIAL
DOCUMENT, TO THE LEGISLATURE, AND TO THE PUBLIC GENERALLY.  THE MAIN
THRUST OF THE RESOLUTION ITSELF WAS IN TERMS OF INDIVIDUAL BEHAVIOR -
VIOLATION OF THE 1951 ACT AND THE PRESENCE, IN THE STATE, OF
"SUBVERSIVE PERSONS," WERE THE OBJECTS OF INVESTIGATION.  THE
COLLECTION OF SUCH DATA, AND OF DATA HAVING SOME PERIPHERAL REFERENCE
TO IT, WITH EXPLICIT DETAIL AS TO NAMES AND PLACES, WAS WHAT THE
ATTORNEY GENERAL SET HIMSELF TO DOING IN RESPONSE TO IT. AS THE REPORT
ITSELF STATED, "A VERY CONSIDERABLE AMOUNT OF QUESTIONING IS ABSOLUTELY
ESSENTIAL TO SEPARATE THE WHEAT FROM THE CHAFF IN APPLYING THE
LEGISLATIVE FORMULA TO INDIVIDUAL CONDUCT WHICH INVOLVES THAT PART OF
THE SPECTRUM VERY CLOSE TO THE LINE OF SUBVERSIVE CONDUCT.  ONLY
THROUGH SUCH QUESTIONING IS IT POSSIBLE TO BE ABLE TO REPORT TO THE
LEGISLATURE WHETHER THE ACTIVITY OF A GIVEN INDIVIDUAL HAS BEEN
SUBVERSIVE OR NOT SUBVERSIVE; WHETHER OR NOT INTENTIONALLY SO OR
KNOWINGLY SO ON HIS PART."  ONE MUST FEEL, ON READING THE REPORT, THAT
THE FIRST SENTENCE - "A VERY CONSIDERABLE AMOUNT OF QUESTIONING IS
ABSOLUTELY ESSENTIAL  ...  IN APPLYING THE LEGISLATIVE FORMULA TO
INDIVIDUAL CONDUCT WHICH INVOLVES THAT PART OF THE SPECTRUM VERY CLOSE
TO THE LINE OF SUBVERSIVE CONDUCT" - IS A SERIOUS OVERSTATEMENT,
BECAUSE IN THE USUAL CITATION OF A PERSON IN THE REPORT NO EXPRESSION
OF HIS INNOCENCE OR GUILT, OR HIS PRECISE COLORATION IN THE ATTORNEY
GENERAL'S SPECTRUM WAS GIVEN.  BUT STILL THE REPORT WAS MADE IN TERMS
OF THE ACTIVITY OF NAMED INDIVIDUALS.  OF COURSE, IF THE ATTORNEY
GENERAL HAD INFORMATION RELATING TO GUILT UNDER THE STATUTE, HE WAS
EMPOWERED TO SEEK INDICTMENT AND CONVICTION OF THE OFFENDERS IN
CRIMINAL PROCEEDINGS, IN WHICH OF COURSE THE NORMAL RIGHTS AFFORDED
CRIMINAL DEFENDANTS AND THE NORMAL LIMITATIONS ON STATE PROSECUTION FOR
CONDUCT RELATED TO POLITICAL ASSOCIATION AND EXPRESSION, UNDER THE
CONSTITUTION, WOULD APPLY.  THE CITATION OF NAMES IN THE BOOK DOES NOT
APPEAR TO HAVE ANY RELATION TO THE POSSIBILITY OF AN ORTHODOX OR
TRADITIONAL CRIMINAL PROSECUTION, AND THE ATTORNEY GENERAL SEEMS TO
ACKNOWLEDGE THIS.  THE INVESTIGATION IN QUESTION HERE WAS NOT ONE
ANCILLARY TO A PROSECUTION - TO GRAND JURY OR TRIAL PROCEDURE.  IF IT
HAD BEEN, IF A DEFINITE PROSECUTION WERE UNDERTAKEN, WE WOULD HAVE THAT
NARROWED CONTEXT IN WHICH TO RELATE THE STATE'S DEMAND FOR EXPOSURE. 
CF. NAACP V. ALABAMA, SUPRA, AT 464-465.  THIS PROCESS OF RELATION IS
PART AND PARCEL OF EXAMINING THE "SUBSTANTIALITY" OF THE STATE'S
INTEREST IN THE CONCRETE CONTEXT IN WHICH IT IS ALLEGED.  BUT HERE WE
ARE WITHOUT THE AID OF SUCH A PRECISE ISSUE AND OUR TASK REQUIRES THAT
WE LOOK FURTHER TO ASCERTAIN WHETHER THIS LEGISLATIVE INVESTIGATION, AS
APPLIED IN THE DEMANDS MADE UPON THE APPELLANT, IS CONNECTED RATIONALLY
WITH A DISCERNIBLE GENERAL LEGISLATIVE END TO WHICH THE RIGHTS OF THE
APPELLANT AND THOSE WHOM HE MAY REPRESENT CAN CONSTITUTIONALLY BE
SUBORDINATED. 

THE LEGISLATURE, UPON RECEIVING THE REPORT, EXTENDED THE
INVESTIGATION FOR A FURTHER TWO YEARS.  IT WAS DURING THIS PERIOD THAT
THE REFUSALS OF THE APPELLANT TO FURNISH INFORMATION WITH WHICH WE ARE
NOW CONCERNED TOOK PLACE.  THE ATTORNEY GENERAL HAD ALREADY PUBLISHED
THE NAMES OF SPEAKERS AT THE WORLD FELLOWSHIP CAMP.  NOW HE WANTED THE
CORRESPONDENCE BETWEEN UPHAUS AND THE SPEAKERS.  THE ATTORNEY GENERAL
ADMITTED THAT IT WAS UNLIKELY THAT THE CORRESPONDENCE BETWEEN UPHAUS
AND THE SPEAKERS WAS GOING TO CONTAIN A DAMNING ADMISSION OF A PURPOSE
TO ADVOCATE THE OVERTHROW OF THE GOVERNMENT (PRESUMABLY OF NEW
HAMPSHIRE) BY FORCE AND VIOLENCE.  HE SAID THAT IT MIGHT INDICATE A
SINISTER PURPOSE BEHIND THE ADVOCACY OF PACIFISM - "THE PURPOSE OF
ACHIEVING A QUICKER AND A CHEAPER OCCUPATION BY THE SOVIET UNION AND
COMMUNISM."  THE GUEST LIST, THE NONAVAILABILITY OF WHICH TO THE
ATTORNEY GENERAL WAS COMMENTED ON IN THE PASSAGE FROM THE 1955 REPORT
QUOTED ABOVE, (FN6) WAS ALSO DESIRED.  APPELLANT'S COUNSEL, AT THE
HEARING IN COURT GIVING RISE TO THE CONTEMPT FINDING UNDER REVIEW,
PROTESTED THAT APPELLANT DID NOT WANT TO ALLOW THE ATTORNEY GENERAL TO
HAVE THE NAMES TO EXPOSE THEM.  THE ATTORNEY GENERAL ALSO WISHED THE
NAMES OF THE NONPROFESSIONAL HELP AT THE CAMP - THE COOKS AND
DISHWASHERS AND THE LIKE.  IT WAS OBJECTED THAT THE COOKS AND
DISHWASHERS WERE HIRED FROM THE LOCAL LABOR POOL AND THAT IF SUCH
EMPLOYMENT WERE ATTENDED BY A TRIP TO THE ATTORNEY GENERAL'S OFFICE AND
THE POSSIBILITY OF PUBLIC EXPOSURE, HELP MIGHT BECOME HARD TO FIND AT
THE CAMP.   THIS LAST OBJECTION WAS SUSTAINED IN THE TRIAL COURT, BUT
THE OTHER TWO INQUIRIES WERE ALLOWED AND APPELLANT'S FAILURE TO RESPOND
TO THE ONE RELATING TO THE GUEST LIST WAS FOUND CONTEMPTUOUS.    FIRST.
THE COURT SEEMS TO EXPERIENCE DIFFICULTY IN DISCERNING THAT APPELLANT
HAS ANY STANDING TO PLEAD THE RIGHTS OF FREE SPEECH AND ASSOCIATION HE
DOES BECAUSE THE MATERIAL HE SEEKS TO WITHHOLD MAY TECHNICALLY BELONG
TO WORLD FELLOWSHIP, INC., A CORPORATION, AND MAY RELATE TO THE
PROTECTED ACTIVITIES OF OTHER PERSONS, RATHER THAN THOSE OF HIMSELF. 
IN NAACP V. ALABAMA, SUPRA, A CORPORATION WAS PERMITTED TO REPRESENT
ITS MEMBERSHIP IN PLEADING THEIR RIGHTS TO FREEDOM OF ASSOCIATION FOR
PUBLIC PURPOSES.  HERE APPELLANT, AS A CORPORATE OFFICER IF ONE WILL,
SEEKS TO PROTECT A LIST OF THOSE WHO HAVE ASSEMBLED TOGETHER FOR PUBLIC
DISCUSSION ON THE CORPORATION'S PREMISES.  OF COURSE THIS IS NOT
TECHNICALLY A MEMBERSHIP LIST, BUT TO DISTINGUISH NAACP V. ALABAMA ON
THIS GROUND IS TO MISS ITS POINT.  THE POINT IS THAT IF THE MEMBERS OF
THE ASSEMBLAGE COULD ONLY PLEAD THEIR ASSEMBLY RIGHTS THEMSELVES, THE
VERY INTEREST BEING SAFEGUARDED BY THE CONSTITUTION HERE COULD NEVER BE
PROTECTED MEANINGFULLY, SINCE TO REQUIRE THAT THE GUESTS CLAIM THIS
RIGHT THEMSELVES WOULD "RESULT IN NULLIFICATION OF THE RIGHT AT THE
VERY MOMENT OF ITS ASSERTION."  ID., AT 459.  I DO NOT THINK IT LIKELY
THAT ANYONE WOULD DENY THE RIGHT OF A BOOKSELLER (INCLUDING A CORPORATE
BOOKSELLER) TO DECLINE TO PRODUCE THE NAMES OF THOSE WHO HAD PURCHASED
HIS BOOKS.  CF. UNITED STATES V. RUMELY, 345 U.S. 41, 57 (CONCURRING
OPINION), AND THE OPINION BELOW IN THAT CASE, 90 U.S. APP. D.C. 382,
197 F.2D 166, 172.  (FN7) 

SECOND.  IN EXAMINING THE RIGHT OF THE STATE TO OBTAIN THIS
INFORMATION FROM THE APPELLANT BY COMPULSORY PROCESS, WE MUST RECOLLECT
WHAT WE SO RECENTLY SAID IN NAACP V. ALABAMA: 

"EFFECTIVE ADVOCACY OF BOTH PUBLIC AND PRIVATE POINTS OF VIEW,
PARTICULARLY CONTROVERSIAL ONES, IS UNDENIABLY ENHANCED BY GROUP
ASSOCIATION, AS THIS COURT HAS MORE THAN ONCE RECOGNIZED BY REMARKING
UPON THE CLOSE NEXUS BETWEEN THE FREEDOMS OF SPEECH AND ASSEMBLY.  DE
JONGE V. OREGON, 299 U.S. 353, 364; THOMAS V. COLLINS, 323 U.S. 516,
530.  IT IS BEYOND DEBATE THAT FREEDOM TO ENGAGE IN ASSOCIATION FOR THE
ADVANCEMENT OF BELIEFS AND IDEAS IS AN INSEPARABLE ASPECT OF THE
'LIBERTY' ASSURED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, WHICH EMBRACES FREEDOM OF SPEECH.  SEE GITLOW V. NEW YORK,
268 U.S. 652, 666; PALKO V. CONNECTICUT, 302 U.S. 319, 324; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303; STAUB V. CITY OF BAXLEY, 355 U.S. 313,
321.  OF COURSE, IT IS IMMATERIAL WHETHER THE BELIEFS SOUGHT TO BE
ADVANCED BY ASSOCIATION PERTAIN TO POLITICAL, ECONOMIC, RELIGIOUS OR
CULTURAL MATTERS, AND STATE ACTION WHICH MAY HAVE THE EFFECT OF
CURTAILING THE FREEDOM TO ASSOCIATE IS SUBJECT TO THE CLOSEST
SCRUTINY."  357 U.S., AT 460-461. 

AND IN EXAMINING THE STATE'S INTEREST IN CARRYING OUT A LEGISLATIVE
INVESTIGATION, AS WAS SAID IN A SIMILAR CONTEXT IN UNITED STATES V.
RUMELY, SUPRA, AT 44, WE MUST STRIVE NOT TO BE "THAT 'BLIND' COURT,
AGAINST WHICH MR. CHIEF JUSTICE TAFT ADMONISHED IN A FAMOUS PASSAGE,
...  THAT DOES NOT SEE WHAT 'ALL OTHERS CAN SEE AND UNDERSTAND.'"  THE
PROBLEM OF PROTECTING THE CITIZEN'S CONSTITUTIONAL RIGHTS FROM
LEGISLATIVE INVESTIGATION AND EXPOSURE IS A PRACTICAL ONE, AND WE MUST
TAKE A PRACTICAL, REALISTIC APPROACH TO IT. 

MOST LEGISLATIVE INVESTIGATIONS UNAVOIDABLY INVOLVE EXPOSURE OF SOME
SORT OR ANOTHER.  BUT IT IS QUITE CLEAR THAT EXPOSURE WAS THE VERY
CORE, AND DELIBERATELY AND PURPOSEFULLY SO, OF THE LEGISLATIVE
INVESTIGATION WE ARE CONCERNED WITH HERE.  THE LEGISLATURE HAD PASSED A
BROAD AND COMPREHENSIVE STATUTE, WHICH INCLUDED CRIMINAL SANCTIONS. 
THAT STATUTE WAS, TO SAY THE LEAST, READILY SUSCEPTIBLE OF MANY
APPLICATIONS IN WHICH IT MIGHT ENTER A CONSTITUTIONAL DANGER ZONE.  SEE
YATES V. UNITED STATES, 354 U.S. 298, 319.  AND IT COULD NOT BE APPLIED
AT ALL INSOFAR AS IT AMOUNTED TO A SANCTION FOR BEHAVIOR DIRECTED
AGAINST THE UNITED STATES.  PENNSYLVANIA V. NELSON, 350 U.S. 497. 
THEREFORE, INDICTMENT WOULD BE FRAUGHT WITH CONSTITUTIONAL AND
EVIDENTIARY PROBLEMS OF AN OBVIOUS AND HARDLY SUBTLE NATURE.  THIS MAY
SUGGEST THE REASON WHY THE PATTERN OF APPLICATION OF THE SUBVERSIVE
ACTIVITIES STATUTE IN NEW HAMPSHIRE WAS NOT THROUGH THE PROCESSES OF
INDICTMENT.  THE RESOLUTION WAS CAST IN TERMS OF AN INVESTIGATION OF
CONDUCT RESTRICTED BY THIS EXISTING STATUTE.  THE RESOLUTION AND THE
ATTORNEY GENERAL'S IMPLEMENTATION OF IT REVEAL THE MAKING OF A CHOICE. 
THE CHOICE WAS TO REACH THE END OF EXPOSURE THROUGH THE PROCESS OF
INVESTIGATION, BACKED WITH THE CONTEMPT POWER AND THE MAKING OF REPORTS
TO THE LEGISLATURE, OF PERSONS AND GROUPS THOUGHT TO BE SOMEHOW RELATED
TO OFFENSES UNDER THE STATUTE OR, FURTHER, TO AN UNCERTAIN PENUMBRA OF
CONDUCT ABOUT THE PROSCRIBED AREA OF THE STATUTE.  AND, AS WAS SAID OF
THE SAME INVESTIGATION IN SWEEZY V. NEW HAMPSHIRE, SUPRA, AT 248:  "THE
PROGRAM FOR THE ROOTING OUT OF SUBVERSION  ...  WAS DRAWN WITHOUT
REGARD TO THE PRESENCE OR ABSENCE OF GUILTY KNOWLEDGE IN THOSE
AFFECTED."  THE SANCTION OF EXPOSURE WAS APPLIED MUCH MORE WIDELY THAN
ANYONE COULD REMOTELY SUGGEST THAT EVEN TRADITIONAL JUDICIAL SANCTIONS
MIGHT BE APPLIED IN THIS AREA. 

ONE MAY ACCEPT THE COURT'S TRUISM THAT PRESERVATION OF THE STATE'S
EXISTENCE IS UNDOUBTEDLY A PROPER PURPOSE FOR LEGISLATION.  BUT, IN
DESCENDING FROM THIS PEAK OF ABSTRACTION TO THE FACTS OF THIS CASE, ONE
MUST ASK THE QUESTION:  WHAT RELATION DID THIS INVESTIGATION OF
INDIVIDUAL CONDUCT HAVE TO LEGISLATIVE ENDS HERE?  IF BILLS OF
ATTAINDER WERE STILL A LEGITIMATE LEGISLATIVE END, IT IS CLEAR THAT THE
INVESTIGATIONS AND REPORTS MIGHT NATURALLY HAVE FURNISHED THE STARTING
POINT (THOUGH ONLY THAT) FOR A LEGISLATIVE ADJUDICATION OF GUILT UNDER
THE 1951 ACT.  BUT WHAT OTHER LEGISLATIVE PURPOSE WAS ACTUALLY BEING
FULFILLED BY THE COURSE TAKEN BY THIS INVESTIGATION, WITH ITS
OVERWHELMING EMPHASIS ON INDIVIDUAL ASSOCIATIONS AND CONDUCT? 

THE INVESTIGATION, AS REVEALED BY THE REPORT, WAS OVERWHELMINGLY AND
PREDOMINANTLY A ROVING, SELF-CONTAINED INVESTIGATION OF INDIVIDUAL AND
GROUP BEHAVIOR, AND BEHAVIOR IN A CONSTITUTIONALLY PROTECTED AREA.  ITS
WHOLE APPROACH WAS TO NAME NAMES, DISCLOSE INFORMATION ABOUT THOSE
NAMED, AND OBSERVE THAT "FACTS ARE FACTS."  THE NEW HAMPSHIRE SUPREME
COURT HAS UPHELD THE INVESTIGATION AS BEING A PROPER LEGISLATIVE
INQUIRY, IT IS TRUE.  IN NELSON V. WYMAN, 99 N.H. 33, 38, 105 A.2D 756,
763, IT SAID:  "NO SOUND BASIS CAN EXIST FOR DENYING TO THE LEGISLATURE
THE POWER TO SO INVESTIGATE THE EFFECTIVENESS OF ITS 1951 ACT EVEN
THOUGH, AS AN INCIDENT TO THAT GENERAL INVESTIGATION, IT MAY BE
NECESSARY TO INQUIRE AS TO WHETHER A PARTICULAR PERSON HAS VIOLATED THE
ACT  ...  .  WHEN THE INVESTIGATION PROVIDED FOR IS A GENERAL ONE, THE
DISCOVERY OF A SPECIFIC, INDIVIDUAL VIOLATION OF LAW IS COLLATERAL AND
SUBORDINATE TO THE MAIN OBJECT OF THE INQUIRY."  IN EVALUATING THIS, IT
MUST BE ADMITTED THAT MAINTENANCE OF THE SEPARATION OF POWERS IN THE
STATES IS NOT, IN AND OF ITSELF, A CONCERN OF THE FEDERAL
CONSTITUTION.  SWEEZY V. NEW HAMPSHIRE, SUPRA, AT 255; CROWELL V.
BENSON, 285 U.S. 22, 57.  BUT FOR AN INVESTIGATION IN THE FIELD OF THE
CONSTITUTIONALLY PROTECTED FREEDOMS OF SPEECH AND ASSEMBLAGE TO BE
UPHELD BY THE BROAD STANDARDS OF RELEVANCE PERMISSIBLE IN A LEGISLATIVE
INQUIRY, SOME RELEVANCE TO A VALID LEGISLATIVE PURPOSE MUST BE SHOWN,
AND CERTAINLY THE RULING MADE BELOW, THAT UNDER THE STATE LAW THE
LEGISLATURE HAS AUTHORIZED THE INQUIRY, WYMAN V. UPHAUS, 100 N.H. 436,
445, 130 A.2D 278, 285, DOES NOT CONCLUDE THE ISSUE HERE.  THE BARE
FACT THAT THE LEGISLATURE HAS AUTHORIZED THE INQUIRY DOES NOT MEAN THAT
THE INQUIRY IS FOR A VALID LEGISLATIVE END WHEN VIEWED IN THE LIGHT OF
THE FEDERAL CONSTITUTIONAL TEST WE MUST APPLY.  NOR, WHILE IT IS
ENTITLED TO WEIGHT, IS THE DETERMINATION BY A STATE COURT THAT THE
INQUIRY RELATES TO A VALID LEGISLATIVE END CONCLUSIVE.  IT IS THE TASK
OF THIS COURT, AS THE COURT RECOGNIZES IN THEORY TODAY, TO EVALUATE THE
FACTS TO DETERMINE IF THERE ACTUALLY HAS BEEN DEMONSTRATED A VALID
LEGISLATIVE END TO WHICH THE INQUIRY IS RELATED.  WITH ALL DUE RESPECT,
THE QUOTED OBSERVATIONS OF THE NEW HAMPSHIRE SUPREME COURT IN THE CASE
OF NELSON V. WYMAN BEAR LITTLE RELATIONSHIP TO THE COURSE OF THE
INQUIRY, AS REVEALED BY THE REPORT PUBLISHED AFTER THAT DECISION.  THE
REPORT DISCLOSES AN INVESTIGATION IN WHICH THE PROCESSES OF LAW-MAKING
AND LAW-EVALUATING WERE SUBMERGED ENTIRELY IN EXPOSURE OF INDIVIDUAL
BEHAVIOR - IN ADJUDICATION, OF A SORT, HOWEVER MUCH DISCLAIMED, THROUGH
THE EXPOSURE PROCESS.  (FN8)  IF AN INVESTIGATION OR TRIAL, CONDUCTED
BY ANY ORGAN OF THE STATE, WHICH IS AIMED AT THE APPLICATION OF
SANCTIONS TO INDIVIDUAL BEHAVIOR IS TO BE UPHELD, IT MUST MEET THE
TRADITIONAL STANDARDS THAT THE COMMON LAW IN THIS COUNTRY HAS
ESTABLISHED FOR THE APPLICATION OF SANCTIONS TO THE INDIVIDUAL, OR A
CONSTITUTIONALLY PERMISSIBLE MODIFICATION OF THEM.  CF. KILBOURN V.
THOMPSON, 103 U.S. 168, 195.  AS A BARE MINIMUM THERE MUST BE GENERAL
STANDARDS OF CONDUCT, SUBSTANTIVELY CONSTITUTIONALLY PROPER, APPLIED TO
THE INDIVIDUAL IN A FAIR PROCEEDING WITH DEFINED ISSUES RESULTING IN A
BINDING, FINAL DETERMINATION.  I HAD NOT SUPPOSED THAT A LEGISLATIVE
INVESTIGATION OF THE SORT PRACTICED HERE PROVIDED SUCH A FRAMEWORK
UNDER THE CONSTITUTION. 

IT IS NOT ENOUGH TO SAY, AS THE COURT'S POSITION I FEAR MAY AMOUNT
TO, THAT WHAT WAS TAKING PLACE WAS AN INVESTIGATION AND UNTIL THE
ATTORNEY GENERAL AND THE LEGISLATURE HAD IN ALL THE DATA, THE PRECISE
SHAPE OF THE LEGISLATIVE ACTION TO BE TAKEN WAS NECESSARILY UNKNOWN. 
INVESTIGATION AND EXPOSURE, IN THE AREA WHICH WE ARE HERE CONCERNED
WITH, ARE NOT RECOGNIZED AS SELF-CONTAINED LEGISLATIVE POWERS IN
THEMSELVES.  SEE WATKINS V. UNITED STATES, SUPRA, AT 200.  CF. NAACP V.
ALABAMA, SUPRA.  SINCE THIS IS SO, IT HARDLY FULFILLS THE
RESPONSIBILITY WITH WHICH THIS COURT IS CHARGED, OF PROTECTING THE
CONSTITUTIONAL RIGHTS OF FREEDOM OF SPEECH AND ASSEMBLY, TO ADMIT THAT
AN INVESTIGATION GOING ON INDEFINITELY IN TIME, ROVING IN SUBJECT
MATTER, AND CUMULATIVE IN DETAIL IN THIS AREA CAN BE IN AID OF A VALID
LEGISLATIVE END, ON THE THEORY THAT SOME DAY IT MAY COME TO SOME
POINT.  EVEN THE MOST ABUSIVE INVESTIGATION, THE ONE MOST TOTALLY
COMMITTED TO THE CONSTITUTIONALLY IMPERMISSIBLE END OF INDIVIDUAL
ADJUDICATION THROUGH PUBLICATION, COULD PASS SUCH A TEST.  AT THE STAGE
OF THIS INVESTIGATION THAT WE ARE CONCERNED WITH, IT CONTINUED TO BE A
CUMULATIVE, BROAD INQUIRY INTO THE SPECIFIC DETAILS OF PAST INDIVIDUAL
AND ASSOCIATIONAL BEHAVIOR IN THE POLITICAL AREA.  IT APPEARS TO HAVE
BEEN A CLASSIC EXAMPLE OF "A FRUITLESS INVESTIGATION INTO THE PERSONAL
AFFAIRS OF INDIVIDUALS."  KILBOURN V. THOMPSON, SUPRA, AT 195. 
INVESTIGATION APPEARS TO HAVE BEEN A SATISFACTORY END PRODUCT FOR THE
STATE, BUT IT CANNOT BE SO FOR US IN THIS CASE AS WE EVALUATE THE
DEMANDS OF THE CONSTITUTION.  NOR CAN WE ACCEPT THE LEGISLATIVE RENEWAL
OF THE INVESTIGATION, OR THE TAKING OF OTHER LEGISLATIVE MEASURES TO
FACILITATE THE INVESTIGATION, AS BEING THEMSELVES THE LEGISLATIVE
JUSTIFICATION OF THE INQUIRY.  THE REPORT INDICATES THAT IT SO VIEWED
THEM; IN REQUESTING LEGISLATION RENEWING THE INVESTIGATION AND AN
INVESTIGATION IMMUNITY STATUTE, THE ATTORNEY GENERAL SIGNIFICANTLY
STATED THAT IF THE RENEWAL LEGISLATION OR SOME INVESTIGATORY SUBSTITUTE
WERE NOT PASSED, IT "WOULD MEAN NO FURTHER INVESTIGATION, NO CONTINUING
CHECK UPON COMMUNIST ACTIVITIES  ...  ."  THIS IS JUST TO ADMIT THE
CONTINUING EXISTENCE OF THE INVESTIGATION AS A SELF-CONTAINED
JUSTIFICATION FOR THE INQUIRY.  HOWEVER MUCH THE STATE MAY BE CONTENT
TO RELY ON THE INVESTIGATION AS ITS OWN SANCTION, I THINK IT PERFECTLY
PLAIN THAT IT CANNOT BE REGARDED AS A JUSTIFICATION HERE.  NOR CAN THE
FAINT POSSIBILITY THAT AN ALREADY QUESTIONABLY BROAD CRIMINAL STATUTE
MIGHT BE FURTHER BROADENED, IF CONSTITUTIONALLY PERMISSIBLE, BE
CONSIDERED THE SUBORDINATING LEGISLATIVE PURPOSE HERE, PARTICULARLY IN
THE LIGHT OF WHAT THE INVESTIGATION WAS IN FACT AS REVEALED BY ITS
REPORT.  OF COURSE, AFTER FURTHER INVESTIGATION AND FURTHER REPORTS,
LEGISLATION OF SOME SORT MIGHT EVENTUATE, OR AT LEAST BE CONSIDERED. 
PERHAPS IT MIGHT BE REJECTED BECAUSE OF SERIOUS DOUBTS AS TO ITS
CONSTITUTIONALITY - WHICH WOULD, I THINK, UNDERLINE THE POINT I AM
MAKING.  BUT ON SUCH AIRY SPECULATION, I DO NOT SEE HOW WE CAN SAY THAT
THE STATE HAS MADE ANY SHOWING THAT THIS INVESTIGATION, WHICH ON ITS
SURFACE HAS AN OVERWHELMING APPEARANCE OF A SIMPLE, WIDE-RANGING
EXPOSURE CAMPAIGN, PRESENTS AN IMPLEMENTATION OF A SUBORDINATING
LAWMAKING INTEREST THAT, AS THE COURT CONCEDES, THE STATE MUST BE SHOWN
TO HAVE. 

THIS COURT'S APPROACH TO A VERY SIMILAR PROBLEM IN NAACP V. ALABAMA,
SUPRA, SHOULD FURNISH A GUIDE TO THE PROPER COURSE OF DECISION HERE. 
THERE THE STATE DEMONSTRATED A DEFINITE PURPOSE WHICH WAS ADMITTEDLY
WITHIN ITS COMPETENCE.  THAT PURPOSE WAS THE ASCERTAINMENT WHETHER A
FOREIGN CORPORATION WAS UNLAWFULLY CARRYING ON LOCAL ACTIVITIES WITHIN
ALABAMA'S BORDERS, BECAUSE NOT QUALIFIED TO DO BUSINESS IN THE MANNER
REQUIRED BY STATE LAW.  IN A JUDICIAL PROCEEDING HAVING THIS AS ITS
EXPRESS STATED PURPOSE, THE STATE SOUGHT TO OBTAIN THE MEMBERSHIP LIST
OF THE CORPORATION.  THIS COURT CAREFULLY RECOGNIZED THE CURBING OF
ASSOCIATIONAL FREEDOM THAT THE DISCLOSURE CALLED FOR BY THIS INQUIRY
WOULD ENTAIL.  IT THEN ANALYZED THE RELATIONSHIP BETWEEN THE INQUIRY
AND THIS PURPOSE, AND, CONCLUDING THAT THERE WAS NO RATIONAL
CONNECTION, IT HELD THE INQUIRY CONSTITUTIONALLY IMPERMISSIBLE.  HERE
THE SITUATION IS EVEN MORE EXTREME; THERE IS NO DEMONSTRATION AT ALL OF
WHAT THE LEGISLATIVE PURPOSE IS, OUTSIDE OF THE INVESTIGATION OF
VIOLATIONS, SUSPICIONS OF VIOLATIONS, AND CONDUCT RAISING SOME QUESTION
OF VIOLATION, OF AN EXISTING STATUTE.  (FN9)  IT IS ANOMALOUS TO SAY,
AS I FEAR THE COURT SAYS TODAY, THAT THE VAGUER THE STATE'S INTEREST
IS, THE MORE LAXLY WILL THE COURT VIEW THE MATTER AND INDULGE A
PRESUMPTION OF THE EXISTENCE OF A VALID SUBORDINATING STATE INTEREST. 
IN EFFECT, A ROVING INVESTIGATION AND EXPOSURE OF PAST ASSOCIATIONS AND
EXPRESSIONS IN THE POLITICAL FIELD IS UPHELD BECAUSE IT MIGHT LEAD TO
SOME SORT OF LEGISLATION WHICH MIGHT BE SUSTAINED AS CONSTITUTIONAL,
AND THE ENTIRE PROCESS IS SAID TO BECOME THE MORE DEFENSIBLE RATHER
THAN THE LESS BECAUSE OF THE VAGUENESS OF THE ISSUES.  THE COURT SAYS
THAT THE APPELLANT CANNOT ARGUE AGAINST THE EXPOSURE BECAUSE THIS IS AN
INVESTIGATION AND THE EXPOSURE MAY MAKE THE INVESTIGATION LEAD
SOMEWHERE, POSSIBLY TO LEGISLATIVE ACTION.  BUT THIS IS JUST TO SAY
THAT AN INVESTIGATION, ONCE UNDER STATE LAW IT IS CLASSIFIED AS
"LEGISLATIVE," NEEDS NO SHOWING OF PURPOSE BEYOND ITS OWN EXISTENCE.  A
START MUST BE MADE SOMEWHERE, AND IF THE PRINCIPLES THIS COURT HAS
ANNOUNCED, AND TO WHICH THE COURT TODAY MAKES SOME DEFERENCE, ARE TO
HAVE ANY MEANING, IT MUST BE UP TO THE STATE TO MAKE SOME AT LEAST
PLAUSIBLE DISCLOSURE OF ITS LAWMAKING INTEREST SO THAT THE RELEVANCE OF
ITS INQUIRIES TO IT MAY BE TESTED.  THEN THE COURTS COULD BEGIN TO
EVALUATE THE JUSTIFICATION FOR THE IMPACT ON THE INDIVIDUAL'S RIGHTS OF
FREEDOM OF SPEECH AND ASSEMBLY.  BUT HERE NOT ONLY HAS THE STATE FAILED
TO BEGIN TO ELUCIDATE SUCH AN INTEREST; IT HAS POSITIVELY DEMONSTRATED,
IT APPEARS TO ME, THROUGH ITS RESOLUTION, THE ATTORNEY GENERAL'S AND
THE STATE COURTS' INTERPRETATION OF IT, AND THE RESOLUTION'S RE
ENACTMENT, THAT WHAT IT IS INTERESTED IN IS EXPOSURE, IN LIEU OF
PROSECUTION, AND NOTHING DEFINABLE ELSE. 

THE PRECISE DETAILS OF THE INQUIRY WE ARE CONCERNED WITH HERE
UNDERLINES THIS.  THE ATTORNEY GENERAL HAD WORLD FELLOWSHIP'S SPEAKER
LIST AND HAD ALREADY MADE PUBLICATION OF IT IN THE FASHION TO WHICH I
HAVE ALLUDED.  HE HAD CONSIDERABLE OTHER DATA ABOUT WORLD FELLOWSHIP,
INC., WHICH HE HAD ALREADY PUBLISHED.  WHAT REASON HAS BEEN
DEMONSTRATED, IN TERMS OF A LEGISLATIVE INQUIRY, FOR GOING INTO THE
MATTER IN FURTHER DEPTH?  OUTSIDE OF THE FACT THAT IT MIGHT AFFORD SOME
FURTHER EVIDENCE AS TO THE EXISTENCE OF "SUBVERSIVE PERSONS" WITHIN THE
STATE, WHICH I HAVE ENDEAVORED TO SHOW WAS NOT IN ITSELF A MATTER
RELATED TO ANY LEGISLATIVE FUNCTION EXCEPT SELF-CONTAINED INVESTIGATION
AND EXPOSURE THEMSELVES, THE RELEVANCE OF FURTHER DETAIL IS NOT
DEMONSTRATED.  BUT ITS DAMAGING EFFECT ON THE PERSONS TO BE NAMED IN
THE GUEST LIST IS OBVIOUS.  AND SINCE THE ONLY DISCERNIBLE PURPOSE OF
THE INVESTIGATION ON THIS RECORD IS REVEALED TO BE INVESTIGATION AND
EXPOSURE PER SE, AND THE RELEVANCE OF THE NAMES TO THAT PURPOSE ALONE
IS QUITE APPARENT, THIS DISCLOSES THE CONSTITUTIONAL INFIRMITY IN THE
INQUIRY WHICH REQUIRES US TO STRIKE DOWN THE ADJUDICATION OF CONTEMPT
IN QUESTION HERE. 

THE COURT DESCRIBES THE INQUIRY WE MUST MAKE IN THIS MATTER AS A
BALANCING OF INTERESTS.  I THINK I HAVE INDICATED THAT THERE HAS BEEN
NO VALID LEGISLATIVE INTEREST OF THE STATE ACTUALLY DEFINED AND SHOWN
IN THE INVESTIGATION AS IT OPERATED, SO THAT THERE IS REALLY NOTHING
AGAINST WHICH THE APPELLANT'S RIGHTS OF ASSOCIATION AND EXPRESSION CAN
BE BALANCED.  BUT IF SOME PROPER LEGISLATIVE END OF THE INQUIRY CAN BE
SURMISED, THROUGH WHAT MUST BE A PROCESS OF SPECULATION, I THINK IT IS
PATENT THAT THERE IS REALLY NO SUBORDINATING INTEREST IN IT
DEMONSTRATED ON THE PART OF THE STATE.  THE EVIDENCE INQUIRED ABOUT WAS
SIMPLY AN EFFORT TO GET FURTHER DETAILS ABOUT AN ACTIVITY AS TO WHICH
THERE ALREADY WERE CONSIDERABLE DETAILS IN THE HANDS OF THE ATTORNEY
GENERAL.  I CAN SEE NO SERIOUS AND SUBSTANTIAL RELATIONSHIP BETWEEN THE
FURNISHING OF THESE FURTHER MINUTIAE ABOUT WHAT WAS GOING ON AT THE
WORLD FELLOWSHIP CAMP AND THE PROCESS OF LEGISLATION, AND IT IS THE
PROCESS OF LEGISLATION, THE CONSIDERATION OF THE ENACTMENT OF LAWS,
WITH WHICH ULTIMATELY WE ARE CONCERNED.  WE HAVE A DETAILED INQUIRY
INTO AN ASSEMBLAGE THE GENERAL CONTOURS OF WHICH WERE ALREADY KNOWN ON
THE ONE HAND, AND ON THE OTHER THE REMOTE AND SPECULATIVE POSSIBILITY
OF SOME SORT OF LEGISLATION - ALBEIT LEGISLATION IN A FIELD WHERE THERE
ARE SERIOUS CONSTITUTIONAL LIMITATIONS.  WE HAVE THIS IN THE CONTEXT OF
AN INQUIRY WHICH WAS IN PRACTICE BEING CONDUCTED IN ITS OVERWHELMING
THRUST AS A VEHICLE OF EXPOSURE, AND WHERE THE PRACTICE HAD BEEN
FOLLOWED OF PUBLISHING NAMES ON THE BASIS OF A "NOT PROVEN" VERDICT. 
WE ARE NOT ASKED TO HOLD THAT THE STATE CANNOT CARRY ON SUCH FACT
FINDING AT ALL, WITH OR WITHOUT COMPULSORY PROCESS.  NOR ARE WE ASKED
TO HOLD THAT AS A GENERAL MATTER COMPULSORY PROCESS CANNOT BE USED TO
AMASS FACTS WHOSE INITIAL RELEVANCE TO AN ULTIMATE LEGISLATIVE INTEREST
MAY BE REMOTE.  CF. MCGRAIN V. DAUGHERTY, 273 U.S. 135, 176-180. 
(FN10)  WE DEAL WITH A NARROW AND MORE SUBTLE PROBLEM.  WE DEAL HERE
WITH INQUIRIES INTO THE AREAS OF FREE SPEECH AND ASSEMBLAGE WHERE THE
PROCESS OF COMPULSORY DISCLOSURE ITSELF TENDS TO HAVE A REPRESSIVE
EFFECT.  CF. SPEISER V. RANDALL, SUPRA.  WE DEAL ONLY WITH THE POWER OF
THE STATE TO COMPEL SUCH A DISCLOSURE.  WE ARE ASKED, IN THIS NARROW
CONTEXT, ONLY TO GIVE MEANING TO OUR STATEMENT IN WATKINS V. UNITED
STATES, SUPRA, AT 198, "THAT THE MERE SEMBLANCE OF A LEGISLATIVE
PURPOSE WOULD NOT JUSTIFY AN INQUIRY IN THE FACE OF THE BILL OF
RIGHTS."  HERE WE MUST DEMAND SOME INITIAL SHOWING BY THE STATE
SUFFICIENT TO COUNTERBALANCE THE INTEREST IN PRIVACY AS IT RELATES TO
FREEDOM OF SPEECH AND ASSEMBLY.  ON ANY BASIS THAT HAS PRACTICAL
MEANING, NEW HAMPSHIRE HAS NOT MADE SUCH A SHOWING HERE.  I WOULD
REVERSE THE JUDGMENT OF THE NEW HAMPSHIRE SUPREME COURT. 

FN1  THE TWO LEADING EARLIER CASES RELATE GENERALLY TO THE
CONGRESSIONAL POWER TO INVESTIGATE, AND WERE NOT REQUIRED TO EXPLORE IT
IN THE CONTEXTS OF FREEDOM OF SPEECH AND OF ASSEMBLY.  KILBOURN V.
THOMPSON, 103 U.S. 168; MCGRAIN V. DAUGHERTY, 273 U.S. 135.  SEE THE
OPINION IN THE LATTER CASE, IBID., AT 175-176. 

FN2  THE ACT WAS C. 193 OF THE LAWS OF NEW HAMPSHIRE, 1951.  AFTER AN
EXTENSIVE PREAMBLE, SEC. 1 PROVIDED VARIOUS DEFINITIONS, INCLUDING
DEFINITIONS OF "SUBVERSIVE ORGANIZATION" AND "FOREIGN SUBVERSIVE
ORGANIZATION"; THE DEFINITION OF "SUBVERSIVE PERSON," ALSO PROVIDED,
WAS:  "ANY PERSON WHO COMMITS, ATTEMPTS TO COMMIT, OR AIDS IN THE
COMMISSION, OR ADVOCATES, ABETS, ADVISES OR TEACHES, BY ANY MEANS ANY
PERSON TO COMMIT, ATTEMPT TO COMMIT, OR AID IN THE COMMISSION OF ANY
ACT INTENDED TO OVERTHROW, DESTROY OR ALTER, OR TO ASSIST IN THE
OVERTHROW, DESTRUCTION OR ALTERATION OF, THE CONSTITUTIONAL FORM OF THE
GOVERNMENT OF THE UNITED STATES, OR OF THE STATE OF NEW HAMPSHIRE, OR
ANY POLITICAL SUBDIVISION OF EITHER OF THEM, BY FORCE, OR VIOLENCE; OR
WHO IS A MEMBER OF A SUBVERSIVE ORGANIZATION OR A FOREIGN SUBVERSIVE
ORGANIZATION."  FOR A DISCUSSION OF THE BREADTH OF THIS DEFINITION, SEE
SWEEZY V. NEW HAMPSHIRE, SUPRA, AT 246-247. 

IS BASED ON THE QUOTED DEFINITION OF "SUBVERSIVE PERSON," EXCEPT THAT
THE FINAL "MEMBERSHIP CLAUSE" IS OMITTED AND A "CLEAR AND PRESENT
DANGER" TEST IS INTRODUCED IN REGARD TO ADVOCACY, ABETTING, ADVISING
AND TEACHING.  ASSISTING IN THE FORMATION OF A SUBVERSIVE ORGANIZATION
OR FOREIGN SUBVERSIVE ORGANIZATION, MANAGING ONE, CONTRIBUTING TO ITS
SUPPORT, DESTROYING ITS PAPERS, OR HIDING ITS FUNDS, "KNOWING SAID
ORGANIZATION TO BE A SUBVERSIVE ORGANIZATION OR A FOREIGN SUBVERSIVE
ORGANIZATION" ALSO CONSTITUTES THE OFFENSE, WHICH IS PUNISHABLE BY
TWENTY YEARS' IMPRISONMENT OR A FINE OF $20,000, OR BOTH.  THOSE WHO
BECOME OR REMAIN MEMBERS OF A SUBVERSIVE ORGANIZATION OR A FOREIGN
SUBVERSIVE ORGANIZATION, AFTER CERTAIN DATES, "KNOWING SAID
ORGANIZATION TO BE A SUBVERSIVE ORGANIZATION OR A FOREIGN SUBVERSIVE
ORGANIZATION," UNDER SEC. 3, ARE LIABLE TO FIVE YEARS' IMPRISONMENT OR
A $5,000 FINE, OR BOTH.  SECTION 4 DISQUALIFIES THOSE CONVICTED UNDER
SEC. 2 OR SEC. 3 FROM PUBLIC OFFICE OR EMPLOYMENT, AND SEC. 9 ERECTS A
SIMILAR DISQUALIFICATION IN THE CASE OF ALL "SUBVERSIVE PERSONS." 
FOREIGN SUBVERSIVE ORGANIZATIONS FUNCTIONING IN NEW HAMPSHIRE. 

FN3  NONE APPEARS TO HAVE BEEN MADE. 

FN4  THE COMMUNIST CONTROL ACT OF 1954, SEC. 5, C. 886, 68 STAT. 776,
50 U.S.C. SEC. 844. 

FN5  ALTHOUGH THE NATURE OF THE INVESTIGATION OF INDIVIDUALS IS
DIFFICULT TO CONVEY WITHOUT REPRODUCTION OF THE FULL REPORT, TWO
INDIVIDUAL WRITE-UPS FROM OTHER SECTIONS OF THE BOOK (THE NAMES ARE
USED IN THE REPORT BUT NOT HERE) ARE ILLUSTRATIVE. 

A TWO-PAGE ITEM IS ENTITLED "THE MATTER OF  ...  X."  IT BEGINS: 

"IN RECENT YEARS THERE HAS BEEN OPPOSITION TO LEGISLATIVE
INVESTIGATIONS IN SOME ACADEMIC CIRCLES.   CHARGES HAVE BEEN MADE,
USUALLY WITHOUT AN ACCOMPANYING SCINTILLA OF EVIDENCE, THAT 'HYSTERIA'
RULES THE COUNTRY AND THAT TEACHERS ARE AFRAID TO TEACH 'THE TRUTH'
BECAUSE OF THE 'WITCH HUNTERS.'  THIS LINE IS REPEATED AD INFINITUM IN
THE COMMUNIST 'DAILY WORKER.' 

"IN NEW HAMPSHIRE, DURING THE COURSE OF THIS INVESTIGATION, A CASE
DID ARISE WHERE RUMORS WERE CIRCULATED CONCERNING A TEACHER  ...  ." 

THE REPORT PROCEEDS:  "THE TEACHER CONCERNING WHOM THE RUMORS WERE
CIRCULATED WAS (X), A TEACHER IN THE (Y CITY) PUBLIC SCHOOL SYSTEM. 
WHEN THE RUMORS CONCERNING MR. (X) CAME TO THE ATTENTION OF THIS
OFFICE, HE WAS INVITED TO TESTIFY  ...  ." 

THE REPORT RELATES THAT X APPEARED "VOLUNTARILY" AND TESTIFIED
"FULLY" THAT HE WAS NOT A MEMBER OF ANY ORGANIZATION ON THE ATTORNEY
GENERAL'S LIST, AND NEVER HAD BEEN.  "THIS OFFICE WAS PREPARED TO MAKE
FULL INVESTIGATION OF THE FACTS AND TO MAKE PUBLIC THE RESULTS OF SUCH
AN INVESTIGATION IF IT WOULD EFFECTUATE THE PURPOSES OF THE CURRENT
PROBE.  (X) RESIGNED AND SECURED EMPLOYMENT OUTSIDE THE STATE.  HAD (X)
NOT DECIDED TO SUBMIT HIS RESIGNATION, SUCH A COURSE OF ACTION WOULD
HAVE BEEN TAKEN, BUT FACILITIES WERE NOT AVAILABLE FOR INQUIRING INTO
MOOT PROBLEMS  ...  ." 

THE REPORT, AFTER NOTING THAT NONE OF ITS AVAILABLE USUAL INFORMANTS
HAD ANYTHING DAMAGING TO SAY ABOUT X, CONCLUDES ITS DISCUSSION OF THIS
"MATTER":  "IT SHOULD BE CLEAR TO FACTIONS WHO OPPOSE PER SE ANY
LEGISLATIVE INVESTIGATION INTO SUBVERSION THAT SUCH INVESTIGATIONS CAN
SERVE THE PURPOSE OF INSURING LEGITIMATE ACADEMIC INTERESTS AGAINST
UNFOUNDED RUMOR OR GOSSIP."  WE ARE LEFT TO CONJECTURE WHETHER MR. X
WOULD SUBSCRIBE TO THE ATTORNEY GENERAL'S CONCLUSION. 

AN 11-PAGE WRITE-UP IS THE STORY OF Y, A CHIEF OF POLICE IN A NEW
HAMPSHIRE MUNICIPALITY.  Y ADMITTED HAVING BEEN A COMMUNIST FROM 1936
TILL 1944, BUT SAID THAT HE WITHDREW THEN, AND CURRENTLY REGARDED THE
COMMUNIST PARTY AS SOMETHING ON A PAR WITH HITLER.  A WITNESS SAID THAT
Y'S NAME WAS ON A SECRET COMMUNIST PARTY LIST AFTER THEN.  PAGES OF THE
DETAILS OF INCONCLUSIVE STATEMENTS AND COUNTERSTATEMENTS IN THIS REGARD
FOLLOW, INCLUDING A "CONFRONTATION" OF CHIEF Y AND A WITNESS IN THE
ATTORNEY GENERAL'S OFFICE, AT WHICH WERE PRESENT THE BOARD OF SELECTMEN
OF THE TOWN FOR WHICH HE WAS POLICE CHIEF.  THE REPORT THEN LISTS
VARIOUS "SITUATIONS IN WHICH CHIEF (Y) WAS NOT ABLE TO BE OF ASSISTANCE
TO THIS INVESTIGATION" AND FINALLY COMES TO THE "CONCLUSION":  "DUE TO
THE CONSPIRATORIAL, CLANDESTINE, AND CURRENTLY UNDERGROUND NATURE OF
THE COMMUNIST PARTY, AS WELL AS THE INABILITY TO FORCE WITNESSES TO
TESTIFY CONCERNING SUBVERSIVE ACTIVITIES, THE ABOVE CONFLICTS IN
TESTIMONY HERE HAVE NOT BEEN RESOLVED AND ARE PRESENTED AS THEY EXIST
ON THE RECORD, WITHOUT FURTHER COMMENT  ...  ." 

THE USUAL INDIVIDUAL BIOGRAPHY IS SHORTER AND LESS DETAILED THAN
THIS; MANY JUST STATE THE INDIVIDUAL'S NAME AND STREET ADDRESS, SET
FORTH A REFERENCE TO HIM IN THE DAILY WORKER OR AN "IDENTIFICATION"
WITH THE COMMUNIST PARTY AT SOME DATE OR WITH A "FRONT" GROUP, AND
STATE THAT THE SUBJECT INVOKED OR TOOK REFUGE IN THE PRIVILEGE AGAINST
SELF-INCRIMINATION WHEN QUESTIONED BEFORE THE ATTORNEY GENERAL. 

FN6  SEE P. 92, SUPRA. 

FN7  THE COURT, APPARENTLY, DRAWS SOME SUPPORT FROM THE NEW HAMPSHIRE
LODGING HOUSE REGISTRATION STATUTE FOR ITS CONCLUSIONS ABOUT THE LACK
OF SUBSTANTIALITY OF THE GUESTS' INTERESTS IN NONDISCLOSURE.  SINCE THE
STATUTE ADMITTEDLY WOULD NOT COVER WHAT THE ATTORNEY GENERAL DESIRED TO
OBTAIN AND SINCE THE NEW HAMPSHIRE COURTS THEMSELVES DID NOT REST ON
IT, IT IS DIFFICULT TO FIND ANY BASIS FOR THIS RELIANCE.  IT WOULD BE
TIME ENOUGH TO DEAL WITH A PRODUCTION ORDER BASED ON THAT STATUTE WHEN
IT AROSE. 

FN8  WHILE AS A GENERAL MATTER IT IS TRUE THAT A STATE CAN DISTRIBUTE
ITS GOVERNMENTAL POWERS AS IT SEES FIT, AS FAR AS THE FEDERAL
CONSTITUTION IS CONCERNED, IT IS ALSO TRUE THAT (REGARDLESS OF WHAT
ORGAN EXERCISES THE FUNCTIONS) DIFFERENT CONSTITUTIONAL TESTS APPLY IN
EXAMINING STATE LEGISLATIVE AND STATE ADJUDICATORY POWERS.  SEE BI
METALLIC INVESTMENT CO. V. STATE BOARD OF EQUALIZATION, 239 U.S. 441. 

FN9  CF. THE ADDRESS OF MR. WILLIAM T. GOSSETT, VICE-PRESIDENT AND
GENERAL COUNSEL OF FORD MOTOR COMPANY AT THE ANNUAL BROTHERHOOD DINNER,
DETROIT, MICHIGAN, NOVEMBER 20, 1958, IN WHICH HE SAID: 

"WE MUST URGE UPON OUR LAW-MAKERS A SCRUPULOUS EXACTNESS,
PARTICULARLY IN THE EXERCISE OF THEIR INVESTIGATIVE POWERS.  WHEN WE
ARE FRUSTRATED BY THE FEELING THAT CERTAIN PEOPLE - SUSPECTED
SUBVERSIVES, GANGSTERS OR LABOR RACKETEERS, FOR EXAMPLE - HAVE FLAUNTED
SOCIETY WITH IMPUNITY, IT IS TEMPTING TO PILLORY THEM THROUGH PROLONGED
PUBLIC EXPOSURE TO HEARSAY TESTIMONY, INTEMPERATE INVECTIVE AND OTHER
FORMS OF ABUSE.  BUT TO TRY BY SUCH MEANS TO DESTROY THOSE WHOM WE ARE
UNABLE TO CONVICT BY DUE PROCESS OF LAW MAY DESTROY INSTEAD THE VERY
SAFEGUARDS THAT PROTECT US ALL AGAINST TYRANNY AND ARBITRARY POWER." 
FN10  MCGRAIN V. DAUGHERTY FOUND LEGISLATIVE JUSTIFICATION IN A
CONGRESSIONAL INQUIRY WHICH PRESENTED A RATHER STRONG ELEMENT OF
EXPOSURE OF PAST WRONGDOING, TO BE SURE.  BUT THE POSSIBILITY OF
LEGISLATION WAS MUCH MORE REAL THAN IS THE CASE HERE, AND THE
LEGISLATIVE SUBJECT MATTER - CONTROL AND REGULATION OF THE STRUCTURE
AND WORKINGS OF AN EXECUTIVE DEPARTMENT - WAS ONE NOT FRAUGHT WITH THE
CONSTITUTIONAL PROBLEMS PRESENTED BY LEGISLATION IN THE FIELD OF
POLITICAL ADVOCACY AND ASSEMBLY.  AND THE INQUIRY ITSELF, MOST
SIGNIFICANTLY, WAS NOT DIRECTED AT PRIVATE ASSEMBLY AND DISCUSSION, BUT
AT THE CONDUCT OF A PUBLIC OFFICIAL IN OFFICE; IT DID NOT HAVE THE
INHIBITORY EFFECT ON BASIC POLITICAL FREEDOMS THAT THE INQUIRY WE ARE
HERE CONCERNED WITH PRESENTS.  CF. WATKINS V. UNITED STATES, SUPRA, AT
200, N. 33.  THE DAUGHERTY CASE IS BASICALLY, THEN, ONE RELATING TO THE
DISTRIBUTION OF POWERS AMONG BRANCHES OF THE FEDERAL GOVERNMENT. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS WOULD DECIDE THIS CASE ON
THE GROUND THAT APPELLANT IS BEING DEPRIVED OF RIGHTS UNDER THE FIRST
AND FOURTEENTH AMENDMENTS, FOR THE REASONS DEVELOPED IN ADLER V. BOARD
OF EDUCATION, 342 U.S. 485, 508 (DISSENTING OPINION); BEAUHARNAIS V.
ILLINOIS, 343 U.S. 250, 267, 284 (DISSENTING OPINIONS).  BUT THEY JOIN
MR. JUSTICE BRENNAN'S DISSENT BECAUSE HE MAKES CLEAR TO THEM THAT NEW
HAMPSHIRE'S LEGISLATIVE PROGRAM RESULTING IN THE INCARCERATION OF
APPELLANT FOR CONTEMPT VIOLATES ART. I, SEC. 10 OF THE CONSTITUTION
WHICH PROVIDES THAT "NO STATE SHALL  ...  PASS ANY BILL OF ATTAINDER." 
SEE UNITED STATES V. LOVETT, 328 U.S. 303, 315-318, AND CASES CITED;
JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 142-149
(CONCURRING OPINION). 
..END :













BARENBLATT V. UNITED STATES 360 U.S. 109 


NO. 35.  ARGUED NOVEMBER 18, 1958.  - DECIDED JUNE 8, 1959.  - 102 U.S.
APP. D.C. 217, 252 F.2D 129, AFFIRMED. 


SUMMONED TO TESTIFY BEFORE A SUBCOMMITTEE OF THE HOUSE OF
REPRESENTATIVES COMMITTEE ON UN-AMERICAN ACTIVITIES, WHICH WAS
INVESTIGATING ALLEGED COMMUNIST INFILTRATION INTO THE FIELD OF
EDUCATION, PETITIONER, FORMERLY A GRADUATE STUDENT AND TEACHING FELLOW
AT THE UNIVERSITY OF MICHIGAN, REFUSED TO ANSWER QUESTIONS AS TO
WHETHER HE WAS THEN OR HAD EVER BEEN A MEMBER OF THE COMMUNIST PARTY. 
HE DISCLAIMED RELIANCE UPON THE PRIVILEGE AGAINST SELF-INCRIMINATION,
BUT OBJECTED GENERALLY TO THE RIGHT OF THE SUBCOMMITTEE TO INQUIRE INTO
HIS "POLITICAL" AND "RELIGIOUS" BELIEFS OR ANY "OTHER PERSONAL OR
PRIVATE AFFAIRS" OR "ASSOCIATIONAL ACTIVITIES" UPON GROUNDS SET FORTH
IN A PREVIOUSLY PREPARED MEMORANDUM, WHICH WAS BASED ON THE FIRST,
NINTH, AND TENTH AMENDMENTS, THE PROHIBITION AGAINST BILLS OF ATTAINDER
AND THE DOCTRINE OF SEPARATION OF POWERS.  FOR SUCH REFUSAL HE WAS
CONVICTED OF A VIOLATION OF 2 U.S.C. SEC. 192, WHICH MAKES IT A
MISDEMEANOR FOR ANY PERSON SUMMONED AS A WITNESS BY EITHER HOUSE OF
CONGRESS OR A COMMITTEE THEREOF TO REFUSE TO ANSWER ANY QUESTION
PERTINENT TO THE QUESTION UNDER INQUIRY.  HE WAS FINED AND SENTENCED TO
IMPRISONMENT FOR SIX MONTHS.   HELD:  PETITIONER'S CONVICTION IS
SUSTAINED.  PP. 111-134. 

1.  IN THE LIGHT OF THE COMMITTEE'S HISTORY AND THE REPEATED
EXTENSIONS OF ITS LIFE, AS WELL AS THE SUCCESSIVE APPROPRIATIONS BY THE
HOUSE OF REPRESENTATIVES FOR THE CONDUCT OF ITS ACTIVITIES, ITS
LEGISLATIVE AUTHORITY AND THAT OF THE SUBCOMMITTEE TO CONDUCT THE
INQUIRY UNDER CONSIDERATION HERE IS UNASSAILABLE; AND HOUSE RULE XI,
83D CONGRESS, WHICH DEFINES THE COMMITTEE'S AUTHORITY, CANNOT BE SAID
TO BE CONSTITUTIONALLY INFIRM ON THE SCORE OF VAGUENESS.  WATKINS V.
UNITED STATES, 354 U.S. 178, DISTINGUISHED.  PP. 116-123. 

(A)  RULE XI HAS A "PERSUASIVE GLOSS OF LEGISLATIVE HISTORY" WHICH
SHOWS BEYOND DOUBT THAT, IN PURSUANCE OF ITS LEGISLATIVE CONCERNS IN
THE DOMAIN OF "NATIONAL SECURITY," THE HOUSE OF REPRESENTATIVES HAS
CLOTHED THE COMMITTEE WITH PERSUASIVE AUTHORITY TO INVESTIGATE
COMMUNIST ACTIVITIES IN THIS COUNTRY.  PP. 117-121. 

(B)  IN THE LIGHT OF THE LEGISLATIVE HISTORY, RULE XI CANNOT BE
CONSTRUED SO AS TO EXCLUDE THE FIELD OF EDUCATION FROM THE COMMITTEE'S
COMPULSORY AUTHORITY.  PP. 121-123. 

2.  THE RECORD IN THIS CASE REFUTES PETITIONER'S CONTENTION THAT HE
WAS NOT ADEQUATELY APPRISED OF THE PERTINENCY OF THE SUBCOMMITTEE'S
QUESTIONS TO THE SUBJECT MATTER OF THE INQUIRY.  WATKINS V. UNITED
STATES, SUPRA, DISTINGUISHED.  PP. 123-125. 

3.  ON THE RECORD IN THIS CASE, THE BALANCE BETWEEN THE INDIVIDUAL
AND THE GOVERNMENTAL INTERESTS HERE AT STAKE MUST BE STRUCK IN FAVOR OF
THE LATTER, AND, THEREFORE, THE PROVISIONS OF THE FIRST AMENDMENT WERE
NOT TRANSGRESSED BY THE SUBCOMMITTEE'S INQUIRY INTO PETITIONER'S PAST
OR PRESENT MEMBERSHIP IN THE COMMUNIST PARTY.  PP. 125-134. 

(A)  WHERE FIRST AMENDMENT RIGHTS ARE ASSERTED TO BAR GOVERNMENTAL
INTERROGATION, RESOLUTION OF THE ISSUE ALWAYS INVOLVES A BALANCING BY
THE COURTS OF THE COMPETING PRIVATE AND PUBLIC INTERESTS AT STAKE IN
THE PARTICULAR CIRCUMSTANCES SHOWN.  PP. 126-127. 

(B)  THE INVESTIGATION HERE INVOLVED WAS RELATED TO A VALID
LEGISLATIVE PURPOSE, SINCE CONGRESS HAS WIDE POWER TO LEGISLATE IN THE
FIELD OF COMMUNIST ACTIVITY IN THIS COUNTRY AND TO CONDUCT APPROPRIATE
INVESTIGATIONS IN AID THEREOF.  PP. 127-129. 

(C)  INVESTIGATORY POWER IN THIS DOMAIN IS NOT TO BE DENIED CONGRESS
SOLELY BECAUSE THE FIELD OF EDUCATION IS INVOLVED, AND THE RECORD IN
THIS CASE DOES NOT INDICATE ANY ATTEMPT BY THE COMMITTEE TO INQUIRE
INTO THE CONTENT OF ACADEMIC LECTURES OR DISCUSSIONS, BUT ONLY TO
INVESTIGATE THE EXTENT TO WHICH THE COMMUNIST PARTY HAD SUCCEEDED IN
INFILTRATING INTO OUR EDUCATIONAL INSTITUTIONS PERSONS AND GROUPS
COMMITTED TO FURTHERING THE PARTY'S ALLEGED OBJECTIVE OF VIOLENT
OVERTHROW OF THE GOVERNMENT.  SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234,
DISTINGUISHED.  PP. 129-132. 

(D)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE TRUE
OBJECTIVE OF THE COMMITTEE AND OF THE CONGRESS WAS PURELY "EXPOSURE,"
RATHER THAN FURTHERANCE OF A VALID LEGISLATIVE PURPOSE.  PP. 132-133. 

(E)  THE RECORD IS BARREN OF OTHER FACTORS WHICH IN THEMSELVES MIGHT
LEAD TO THE CONCLUSION THAT THE INDIVIDUAL INTERESTS AT STAKE WERE NOT
SUBORDINATE TO THOSE OF THE GOVERNMENT.  P. 134. 

BARENBLATT V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

ONCE MORE THE COURT IS REQUIRED TO RESOLVE THE CONFLICTING
CONSTITUTIONAL CLAIMS OF CONGRESSIONAL POWER AND OF AN INDIVIDUAL'S
RIGHT TO RESIST ITS EXERCISE.  THE CONGRESSIONAL POWER IN QUESTION
CONCERNS THE INTERNAL PROCESS OF CONGRESS IN MOVING WITHIN ITS
LEGISLATIVE DOMAIN; IT INVOLVES THE UTILIZATION OF ITS COMMITTEES TO
SECURE "TESTIMONY NEEDED TO ENABLE IT EFFICIENTLY TO EXERCISE A
LEGISLATIVE FUNCTION BELONGING TO IT UNDER THE CONSTITUTION."  MCGRAIN
V. DAUGHERTY, 273 U.S. 135, 160.  THE POWER OF INQUIRY HAD BEEN
EMPLOYED BY CONGRESS THROUGHOUT OUR HISTORY, OVER THE WHOLE RANGE OF
THE NATIONAL INTERESTS CONCERNING WHICH CONGRESS MIGHT LEGISLATE OR
DECIDE UPON DUE INVESTIGATION NOT TO LEGISLATE; IT HAS SIMILARLY BEEN
UTILIZED IN DETERMINING WHAT TO APPROPRIATE FROM THE NATIONAL PURSE, OR
WHETHER TO APPROPRIATE.  THE SCOPE OF THE POWER OF INQUIRY, IN SHORT,
IS AS PENETRATING AND FAR-REACHING AS THE POTENTIAL POWER TO ENACT AND
APPROPRIATE UNDER THE CONSTITUTION. 

BROAD AS IT IS, THE POWER IS NOT, HOWEVER, WITHOUT LIMITATIONS. 
SINCE CONGRESS MAY ONLY INVESTIGATE INTO THOSE AREAS IN WHICH IT MAY
POTENTIALLY LEGISLATE OR APPROPRIATE, IT CANNOT INQUIRE INTO MATTERS
WHICH ARE WITHIN THE EXCLUSIVE PROVINCE OF ONE OF THE OTHER BRANCHES OF
THE GOVERNMENT.   LACKING THE JUDICIAL POWER GIVEN TO THE JUDICIARY, IT
CANNOT INQUIRE INTO MATTERS THAT ARE EXCLUSIVELY THE CONCERN OF THE
JUDICIARY.  NEITHER CAN IT SUPPLANT THE EXECUTIVE IN WHAT EXCLUSIVELY
BELONGS TO THE EXECUTIVE.  AND THE CONGRESS, IN COMMON WITH ALL
BRANCHES OF THE GOVERNMENT, MUST EXERCISE ITS POWERS SUBJECT TO THE
LIMITATIONS PLACED BY THE CONSTITUTION ON GOVERNMENTAL ACTION, MORE
PARTICULARLY IN THE CONTEXT OF THIS CASE THE RELEVANT LIMITATIONS OF
THE BILL OF RIGHTS. 

THE CONGRESSIONAL POWER OF INQUIRY, ITS RANGE AND SCOPE, AND AN
INDIVIDUAL'S DUTY IN RELATION TO IT, MUST BE VIEWED IN PROPER
PERSPECTIVE.  MCGRAIN V. DAUGHERTY, SUPRA; LANDIS, CONSTITUTIONAL
LIMITATIONS ON THE CONGRESSIONAL POWER OF INVESTIGATION, 40 HARV. L.
REV. 153, 214; BLACK, INSIDE A SENATE INVESTIGATION, 172 HARPERS
MONTHLY 275 (FEBRUARY 1936).  THE POWER AND THE RIGHT OF RESISTANCE TO
IT ARE TO BE JUDGED IN THE CONCRETE, NOT ON THE BASIS OF ABSTRACTIONS. 
IN THE PRESENT CASE CONGRESSIONAL EFFORTS TO LEARN THE EXTENT OF A
NATION-WIDE, INDEED WORLD-WIDE, PROBLEM HAVE BROUGHT ONE OF ITS
INVESTIGATING COMMITTEES INTO THE FIELD OF EDUCATION.  OF COURSE,
BROADLY VIEWED, INQUIRIES CANNOT BE MADE INTO THE TEACHING THAT IS
PURSUED IN ANY OF OUR EDUCATIONAL INSTITUTIONS.  WHEN ACADEMIC TEACHING
FREEDOM AND ITS COROLLARY LEARNING-FREEDOM, SO ESSENTIAL TO THE WELL
BEING OF THE NATION, ARE CLAIMED, THIS COURT WILL ALWAYS BE ON THE
ALERT AGAINST INTRUSION BY CONGRESS INTO THIS CONSTITUTIONALLY
PROTECTED DOMAIN.  BUT THIS DOES NOT MEAN THAT THE CONGRESS IS
PRECLUDED FROM INTERROGATING A WITNESS MERELY BECAUSE HE IS A TEACHER. 
AN EDUCATIONAL INSTITUTION IS NOT A CONSTITUTIONAL SANCTUARY FROM
INQUIRY INTO MATTERS THAT MAY OTHERWISE BE WITHIN THE CONSTITUTIONAL
LEGISLATIVE DOMAIN MERELY FOR THE REASON THAT INQUIRY IS MADE OF
SOMEONE WITHIN ITS WALLS. 

IN THE SETTING OF THIS FRAMEWORK OF CONSTITUTIONAL HISTORY, PRACTICE
AND LEGAL PRECEDENTS, WE TURN TO THE PARTICULARITIES OF THIS CASE. 

WE HERE REVIEW PETITIONER'S CONVICTION UNDER 2 U.S.C. SEC. 192 (FN1)
FOR CONTEMPT OF CONGRESS, ARISING FROM HIS REFUSAL TO ANSWER CERTAIN
QUESTIONS PUT TO HIM BY A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES DURING THE COURSE OF AN INQUIRY CONCERNING ALLEGED
COMMUNIST INFILTRATION INTO THE FIELD OF EDUCATION. 

THE CASE IS BEFORE US FOR THE SECOND TIME.  PETITIONER'S CONVICTION
WAS ORIGINALLY AFFIRMED IN 1957 BY A UNANIMOUS PANEL OF THE COURT OF
APPEALS, 100 U.S. APP. D.C. 13, 240 F.2D 875.  THIS COURT GRANTED
CERTIORARI, 354 U.S. 930, VACATED THE JUDGMENT OF THE COURT OF APPEALS,
AND REMANDED THE CASE TO THAT COURT FOR FURTHER CONSIDERATION IN LIGHT
OF WATKINS V. UNITED STATES, 354 U.S. 178, WHICH HAD REVERSED A
CONTEMPT OF CONGRESS CONVICTION, AND WHICH WAS DECIDED AFTER THE COURT
OF APPEALS' DECISION HERE HAD ISSUED.  THEREAFTER THE COURT OF APPEALS,
SITTING EN BANC, REAFFIRMED THE CONVICTION BY A DIVIDED COURT.  102
U.S. APP. D.C. 217, 252 F.2D 129.  WE AGAIN GRANTED CERTIORARI, 356
U.S. 929, TO CONSIDER PETITIONER'S STATUTORY AND CONSTITUTIONAL
CHALLENGES TO HIS CONVICTION, AND PARTICULARLY HIS CLAIM THAT THE
JUDGMENT BELOW CANNOT STAND UNDER OUR DECISION IN THE WATKINS CASE. 

PURSUANT TO A SUBPOENA, AND ACCOMPANIED BY COUNSEL, PETITIONER ON
JUNE 28, 1954, APPEARED AS A WITNESS BEFORE THIS CONGRESSIONAL
SUBCOMMITTEE.  AFTER ANSWERING A FEW PRELIMINARY QUESTIONS AND
TESTIFYING THAT HE HAD BEEN A GRADUATE STUDENT AND TEACHING FELLOW AT
THE UNIVERSITY OF MICHIGAN FROM 1947 TO 1950 AND AN INSTRUCTOR IN
PSYCHOLOGY AT VASSAR COLLEGE FROM 1950 TO SHORTLY BEFORE HIS APPEARANCE
BEFORE THE SUBCOMMITTEE, PETITIONER OBJECTED GENERALLY TO THE RIGHT OF
THE SUBCOMMITTEE TO INQUIRE INTO HIS "POLITICAL" AND "RELIGIOUS"
BELIEFS OR ANY "OTHER PERSONAL AND PRIVATE AFFAIRS" OR "ASSOCIATIONAL
ACTIVITIES," UPON GROUNDS SET FORTH IN A PREVIOUSLY PREPARED MEMORANDUM
WHICH HE WAS ALLOWED TO FILE WITH THE SUBCOMMITTEE.  (FN2) THEREAFTER
PETITIONER SPECIFICALLY DECLINED TO ANSWER EACH OF THE FOLLOWING FIVE
QUESTIONS: 

"ARE YOU NOW A MEMBER OF THE COMMUNIST PARTY?  (COUNT ONE.) 

"HAVE YOU EVER BEEN A MEMBER OF THE COMMUNIST PARTY?  (COUNT TWO.) 

"NOW, YOU HAVE STATED THAT YOU KNEW FRANCIS CROWLEY.  DID YOU KNOW
FRANCIS CROWLEY AS A MEMBER OF THE COMMUNIST PARTY?  (COUNT THREE.) 

"WERE YOU EVER A MEMBER OF THE HALDANE CLUB OF THE COMMUNIST PARTY
WHILE AT THE UNIVERSITY OF MICHIGAN?  (COUNT FOUR.) 

"WERE YOU A MEMBER WHILE A STUDENT OF THE UNIVERSITY COUNCIL OF ARTS,
SCIENCES, AND PROFESSIONS?"  (COUNT FIVE.) 

IN EACH INSTANCE THE GROUNDS OF REFUSAL WERE THOSE SET FORTH IN THE
PREPARED STATEMENT.  PETITIONER EXPRESSLY DISCLAIMED RELIANCE UPON "THE
FIFTH AMENDMENT."  (FN3) 

FOLLOWING RECEIPT OF THE SUBCOMMITTEE'S REPORT OF THESE OCCURRENCES
THE HOUSE DULY CERTIFIED THE MATTER TO THE DISTRICT OF COLUMBIA UNITED
STATES ATTORNEY FOR CONTEMPT PROCEEDINGS.  AN INDICTMENT IN FIVE
COUNTS, EACH EMBRACING ONE OF THE PETITIONER'S SEVERAL REFUSALS TO
ANSWER, ENSUED.  WITH THE CONSENT OF BOTH SIDES THE CASE WAS TRIED TO
THE COURT WITHOUT A JURY, AND UPON CONVICTION UNDER ALL COUNTS A
GENERAL SENTENCE OF SIX MONTHS' IMPRISONMENT AND A FINE OF $250 WAS
IMPOSED. 

SINCE THIS SENTENCE WAS LESS THAN THE MAXIMUM PUNISHMENT AUTHORIZED
BY THE STATUTE FOR CONVICTION UNDER ANY ONE COUNT, (FN4) THE JUDGMENT
BELOW MUST BE UPHELD IF THE CONVICTION UPON ANY OF THE COUNTS IS
SUSTAINABLE.  SEE CLAASSEN V. UNITED STATES, 142 U.S. 140, 147; ROVIARO
V. UNITED STATES, 353 U.S. 53; WHITFIELD V. OHIO, 297 U.S. 431.  AS WE
CONCEIVE THE ULTIMATE ISSUE IN THIS CASE TO BE WHETHER PETITIONER COULD
PROPERLY BE CONVICTED OF CONTEMPT FOR REFUSING TO ANSWER QUESTIONS
RELATING TO HIS PARTICIPATION IN OR KNOWLEDGE OF ALLEGED COMMUNIST
PARTY ACTIVITIES AT EDUCATIONAL INSTITUTIONS IN THIS COUNTRY, WE FIND
IT UNNECESSARY TO CONSIDER THE VALIDITY OF HIS CONVICTION UNDER THE
THIRD AND FIFTH COUNTS, THE ONLY ONES INVOLVING QUESTIONS WHICH ON
THEIR FACE DO NOT DIRECTLY RELATE TO SUCH PARTICIPATION OR KNOWLEDGE. 

PETITIONER'S VARIOUS CONTENTIONS RESOLVE THEMSELVES INTO THREE
PROPOSITIONS:  FIRST, THE COMPELLING OF TESTIMONY BY THE SUBCOMMITTEE
WAS NEITHER LEGISLATIVELY AUTHORIZED NOR CONSTITUTIONALLY PERMISSIBLE
BECAUSE OF THE VAGUENESS OF RULE XI OF THE HOUSE OF REPRESENTATIVES,
EIGHTY-THIRD CONGRESS, THE CHARTER OF AUTHORITY OF THE PARENT
COMMITTEE.  (FN5)  SECOND, PETITIONER WAS NOT ADEQUATELY APPRISED OF
THE PERTINENCY OF THE SUBCOMMITTEE'S QUESTIONS TO THE SUBJECT MATTER OF
THE INQUIRY.  THIRD, THE QUESTIONS PETITIONER REFUSED TO ANSWER
INFRINGED RIGHTS PROTECTED BY THE FIRST AMENDMENT. 

          SUBCOMMITTEE'S AUTHORITY TO COMPEL TESTIMONY. 

AT THE OUTSET IT SHOULD BE NOTED THAT RULE XI AUTHORIZED THIS
SUBCOMMITTEE TO COMPEL TESTIMONY WITHIN THE FRAMEWORK OF THE
INVESTIGATIVE AUTHORITY CONFERRED ON THE UN-AMERICAN ACTIVITIES
COMMITTEE.  (FN6)  PETITIONER CONTENDS THAT WATKINS V. UNITED STATES,
SUPRA, NEVERTHELESS HELD THE GRANT OF THIS POWER IN ALL CIRCUMSTANCES
INEFFECTIVE BECAUSE OF THE VAGUENESS OF RULE XI IN DELINEATING THE
COMMITTEE JURISDICTION TO WHICH ITS EXERCISE WAS TO BE APPURTENANT. 
THIS VIEW OF WATKINS WAS ACCEPTED BY TWO OF THE DISSENTING JUDGES
BELOW.  102 U.S. APP. D.C., AT 124, 252 F.2D, AT 136. 

THE WATKINS CASE CANNOT PROPERLY BE READ AS STANDING FOR SUCH A
PROPOSITION.  A PRINCIPAL CONTENTION IN WATKINS WAS THAT THE REFUSALS
TO ANSWER WERE JUSTIFIED BECAUSE THE REQUIREMENT OF 2 U.S.C. SEC. 192
THAT THE QUESTIONS ASKED BE "PERTINENT TO THE QUESTION UNDER INQUIRY"
HAD NOT BEEN SATISFIED.  354 U.S., AT 208-209.  THIS COURT REVERSED THE
CONVICTION SOLELY ON THAT GROUND, HOLDING THAT WATKINS HAD NOT BEEN
ADEQUATELY APPRISED OF THE SUBJECT MATTER OF THE SUBCOMMITTEE'S
INVESTIGATION OR THE PERTINENCY THERETO OF THE QUESTIONS HE REFUSED TO
ANSWER.  ID., AT 206-209, 214-215; AND SEE THE CONCURRING OPINION IN
THAT CASE, ID., AT 216.  IN SO DECIDING THE COURT DREW UPON RULE XI
ONLY AS ONE OF THE FACETS IN THE TOTAL MISE EN SCENE IN ITS SEARCH FOR
THE "QUESTION UNDER INQUIRY" IN THAT PARTICULAR INVESTIGATION.  ID., AT
209-215.  THE COURT, IN OTHER WORDS, WAS NOT DEALING WITH RULE XI AT
LARGE, AND INDEED IN EFFECT STATED THAT NO SUCH ISSUE WAS BEFORE IT,
ID., AT 209.  THAT THE VAGUENESS OF RULE XI WAS NOT ALONE DETERMINATIVE
IS ALSO SHOWN BY THE COURT'S FURTHER STATEMENT THAT ASIDE FROM THE RULE
"THE REMARKS OF THE CHAIRMAN OR MEMBERS OF THE COMMITTEE, OR EVEN THE
NATURE OF THE PROCEEDINGS THEMSELVES, MIGHT SOMETIMES MAKE THE TOPIC
UNDER INQUIRY CLEAR."  IBID.  IN SHORT, WHILE WATKINS WAS CRITICAL OF
RULE XI, IT DID NOT INVOLVE THE BROAD AND INFLEXIBLE HOLDING PETITIONER
NOW ATTRIBUTES TO IT.  (FN7) 

PETITIONER ALSO CONTENDS, INDEPENDENTLY OF WATKINS, THAT THE
VAGUENESS OF RULE XI DEPRIVED THE SUBCOMMITTEE OF THE RIGHT TO COMPEL
TESTIMONY IN THIS INVESTIGATION INTO COMMUNIST ACTIVITY.  WE CANNOT
AGREE WITH THIS CONTENTION, WHICH IN ITS FURTHEST REACH WOULD MEAN THAT
THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE UNDER ITS EXISTING AUTHORITY
HAS NO RIGHT TO COMPEL TESTIMONY IN ANY CIRCUMSTANCES.  GRANTING THE
VAGUENESS OF THE RULE, WE MAY NOT READ IT IN ISOLATION FROM ITS LONG
HISTORY IN THE HOUSE OF REPRESENTATIVES.  JUST AS LEGISLATION IS OFTEN
GIVEN MEANING BY THE GLOSS OF LEGISLATIVE REPORTS, ADMINISTRATIVE
INTERPRETATION, AND LONG USAGE, SO THE PROPER MEANING OF AN
AUTHORIZATION TO A CONGRESSIONAL COMMITTEE IS NOT TO BE DERIVED ALONE
FROM ITS ABSTRACT TERMS UNRELATED TO THE DEFINITE CONTENT FURNISHED
THEM BY THE COURSE OF CONGRESSIONAL ACTIONS.  THE RULE COMES TO US WITH
A "PERSUASIVE GLOSS OF LEGISLATIVE HISTORY," UNITED STATES V.
WITKOVICH, 353 U.S. 194, 199, WHICH SHOWS BEYOND DOUBT THAT IN
PURSUANCE OF ITS LEGISLATIVE CONCERNS IN THE DOMAIN OF "NATIONAL
SECURITY" THE HOUSE HAS CLOTHED THE UN-AMERICAN ACTIVITIES COMMITTEE
WITH PERVASIVE AUTHORITY TO INVESTIGATE COMMUNIST ACTIVITIES IN THIS
COUNTRY. 

THE ESSENCE OF THAT HISTORY CAN BE BRIEFLY STATED.  THE UN-AMERICAN
ACTIVITIES COMMITTEE, ORIGINALLY KNOWN AS THE DIES COMMITTEE, WAS FIRST
ESTABLISHED BY THE HOUSE IN 1938.  (FN8)  THE COMMITTEE WAS PRINCIPALLY
A CONSEQUENCE OF CONCERN OVER THE ACTIVITIES OF THE GERMAN-AMERICAN
BUND, WHOSE MEMBERS WERE SUSPECTED OF ALLEGIANCE TO HITLER GERMANY, AND
OF THE COMMUNIST PARTY, SUPPOSED BY MANY TO BE UNDER THE DOMINATION OF
THE SOVIET UNION.  (FN9)  FROM THE BEGINNING, WITHOUT INTERRUPTION TO
THE PRESENT TIME, AND WITH UNDOUBTED KNOWLEDGE AND APPROVAL OF THE
HOUSE, THE COMMITTEE HAS DEVOTED A MAJOR PART OF ITS ENERGIES TO THE
INVESTIGATION OF COMMUNIST ACTIVITIES.  (FN10)  MORE PARTICULARLY, IN
1947 THE COMMITTEE ANNOUNCED A WIDE-RANGE PROGRAM IN THIS FIELD, (FN11)
PURSUANT TO WHICH DURING THE YEARS 1948 TO 1952 IT CONDUCTED DIVERSE
INQUIRIES INTO SUCH ALLEGED COMMUNIST ACTIVITIES AS ESPIONAGE; EFFORTS
TO LEARN ATOM BOMB SECRETS; INFILTRATION INTO LABOR, FARMER, VETERAN,
PROFESSIONAL, YOUTH, AND MOTION PICTURE GROUPS; AND IN ADDITION HELD A
NUMBER OF HEARINGS UPON VARIOUS LEGISLATIVE PROPOSALS TO CURB COMMUNIST
ACTIVITIES.  (FN12) 

IN THE CONTEXT OF THESE UNREMITTING PURSUITS, THE HOUSE HAS STEADILY
CONTINUED THE LIFE OF THE COMMITTEE AT THE COMMENCEMENT OF EACH NEW
CONGRESS; (FN13) IT HAS NEVER NARROWED THE POWERS OF THE COMMITTEE,
WHOSE AUTHORITY HAS REMAINED THROUGHOUT IDENTICAL WITH THAT CONTAINED
IN RULE XI; AND IT HAS CONTINUINGLY SUPPORTED THE COMMITTEE'S
ACTIVITIES WITH SUBSTANTIAL APPROPRIATIONS.  (FN14) BEYOND THIS, THE
COMMITTEE WAS RAISED TO THE LEVEL OF A STANDING COMMITTEE OF THE HOUSE
IN 1945, IT HAVING BEEN BUT A SPECIAL COMMITTEE PRIOR TO THAT TIME. 
(FN15)    IN LIGHT OF THIS LONG AND ILLUMINATING HISTORY IT CAN HARDLY
BE SERIOUSLY ARGUED THAT THE INVESTIGATION OF COMMUNIST ACTIVITIES
GENERALLY, AND THE ATTENDANT USE OF COMPULSORY PROCESS, WAS BEYOND THE
PURVIEW OF THE COMMITTEE'S INTENDED AUTHORITY UNDER RULE XI. 

WE ARE URGED, HOWEVER, TO CONSTRUE RULE XI SO AS AT LEAST TO EXCLUDE
THE FIELD OF EDUCATION FROM THE COMMITTEE'S COMPULSORY AUTHORITY.  TWO
OF THE FOUR DISSENTING JUDGES BELOW RELIED ENTIRELY, THE OTHER TWO
ALTERNATIVELY, ON THIS GROUND.  102 U.S. APP. D.C., AT 224, 226, 252
F.2D, AT 136, 138.  THE CONTENTION IS PREMISED ON THE COURSE WE TOOK IN
UNITED STATES V. RUMELY, 345 U.S. 41, WHERE IN ORDER TO AVOID
CONSTITUTIONAL ISSUES WE CONSTRUED NARROWLY THE AUTHORITY OF THE
CONGRESSIONAL COMMITTEE THERE INVOLVED.  WE CANNOT FOLLOW THAT ROUTE
HERE, FOR THIS IS NOT A CASE WHERE RULE XI HAS TO "SPEAK FOR ITSELF,
SINCE CONGRESS PUT NO GLOSS UPON IT AT THE TIME OF ITS PASSAGE," NOR
ONE WHERE THE SUBSEQUENT HISTORY OF THE RULE HAS THE "INFIRMITY OF POST
LITEM MOTAM, SELF-SERVING DECLARATIONS."  SEE UNITED STATES V. RUMELY,
SUPRA, AT 44-45, 48. 

TO THE CONTRARY, THE LEGISLATIVE GLOSS OF RULE XI IS AGAIN
COMPELLING.  NOT ONLY IS THERE NO INDICATION THAT THE HOUSE EVER VIEWED
THE FIELD OF EDUCATION AS BEING OUTSIDE THE COMMITTEE'S AUTHORITY UNDER
RULE XI, BUT THE LEGISLATIVE HISTORY AFFIRMATIVELY EVINCES HOUSE
APPROVAL OF THIS PHASE OF THE COMMITTEE'S WORK.  DURING THE FIRST YEAR
OF ITS ACTIVITIES, 1938, THE COMMITTEE HEARD TESTIMONY ON ALLEGED
COMMUNIST ACTIVITIES AT BROOKLYN COLLEGE, N.Y.  (FN16)  THE FOLLOWING
YEAR IT CONDUCTED SIMILAR HEARINGS RELATING TO THE AMERICAN STUDENT
UNION AND THE TEACHERS UNION.  (FN17) THE FIELD OF "COMMUNIST
INFLUENCES IN EDUCATION" WAS ONE OF THE ITEMS CONTAINED IN THE
COMMITTEE'S 1947 PROGRAM.  (FN18)  OTHER INVESTIGATIONS INCLUDING
EDUCATION TOOK PLACE IN 1952 AND 1953.  (FN19)  AND IN 1953, AFTER THE
COMMITTEE HAD INSTITUTED THE INVESTIGATION INVOLVED IN THIS CASE, THE
DESIRABILITY OF INVESTIGATING COMMUNISM IN EDUCATION WAS SPECIFICALLY
DISCUSSED DURING CONSIDERATION OF ITS APPROPRIATION FOR THAT YEAR,
WHICH AFTER CONTROVERSIAL DEBATE WAS APPROVED.  (FN20) 

IN THIS FRAMEWORK OF THE COMMITTEE'S HISTORY WE MUST CONCLUDE THAT
ITS LEGISLATIVE AUTHORITY TO CONDUCT THE INQUIRY PRESENTLY UNDER
CONSIDERATION IS UNASSAILABLE, AND THAT INDEPENDENTLY OF WHATEVER
BEARING THE BROAD SCOPE OF RULE XI MAY HAVE ON THE ISSUE OF
"PERTINENCY" IN A GIVEN INVESTIGATION INTO COMMUNIST ACTIVITIES, AS IN
WATKINS, THE RULE CANNOT BE SAID TO BE CONSTITUTIONALLY INFIRM ON THE
SCORE OF VAGUENESS.  THE CONSTITUTIONAL PERMISSIBILITY OF THAT
AUTHORITY OTHERWISE IS A MATTER TO BE DISCUSSED LATER. 

                       PERTINENCY CLAIM. 

UNDENIABLY A CONVICTION FOR CONTEMPT UNDER 2 U.S.C. SEC. 192 CANNOT
STAND UNLESS THE QUESTIONS ASKED ARE PERTINENT TO THE SUBJECT MATTER OF
THE INVESTIGATION.  WATKINS V. UNITED STATES, SUPRA, AT 214-215.  BUT
THE FACTORS WHICH LED US TO REST DECISION ON THIS GROUND IN WATKINS
WERE VERY DIFFERENT FROM THOSE INVOLVED HERE. 

IN WATKINS THE PETITIONER HAD MADE SPECIFIC OBJECTION TO THE
SUBCOMMITTEE'S QUESTIONS ON THE GROUND OF PERTINENCY; THE QUESTION
UNDER INQUIRY HAD NOT BEEN DISCLOSED IN ANY ILLUMINATING MANNER; AND
THE QUESTIONS ASKED THE PETITIONER WERE NOT ONLY AMORPHOUS ON THEIR
FACE, BUT IN SOME INSTANCES CLEARLY FOREIGN TO THE ALLEGED SUBJECT
MATTER OF THE INVESTIGATION - "COMMUNISM IN LABOR."  ID., AT 185, 209
215. 

IN CONTRAST, PETITIONER IN THE CASE BEFORE US RAISED NO OBJECTIONS ON
THE GROUND OF PERTINENCY AT THE TIME ANY OF THE QUESTIONS WERE PUT TO
HIM.  IT IS TRUE THAT THE MEMORANDUM WHICH PETITIONER BROUGHT WITH HIM
TO THE SUBCOMMITTEE HEARING CONTAINED THE STATEMENT, "TO ASK ME WHETHER
I AM OR HAVE BEEN A MEMBER OF THE COMMUNIST PARTY MAY HAVE DIRE
CONSEQUENCES.  I MIGHT WISH TO  ... CHALLENGE THE PERTINENCY OF THE
QUESTION TO THE INVESTIGATION," AND AT ANOTHER POINT QUOTED FROM THIS
COURT'S OPINION IN JONES V. SECURITIES & EXCHANGE COMM'N, 298 U.S. 1,
LANGUAGE RELATING TO A WITNESS' RIGHT TO BE INFORMED OF THE PERTINENCY
OF QUESTIONS ASKED HIM BY AN ADMINISTRATIVE AGENCY.  (FN21)  THESE
STATEMENTS CANNOT, HOWEVER, BE ACCEPTED AS THE EQUIVALENT OF A
PERTINENCY OBJECTION.  AT BEST THEY CONSTITUTED BUT A CONTEMPLATED
OBJECTION TO QUESTIONS STILL UNASKED, AND BURIED AS THEY WERE IN THE
CONTEXT OF PETITIONER'S GENERAL CHALLENGE TO THE POWER OF THE
SUBCOMMITTEE THEY CAN HARDLY BE CONSIDERED ADEQUATE, WITHIN THE MEANING
OF WHAT WAS SAID IN WATKINS, SUPRA, AT 214-215, TO TRIGGER WHAT WOULD
HAVE BEEN THE SUBCOMMITTEE'S RECIPROCAL OBLIGATION HAD IT BEEN FACED
WITH A PERTINENCY OBJECTION. 

WE NEED NOT, HOWEVER, REST DECISION ON PETITIONER'S FAILURE TO OBJECT
ON THIS SCORE, FOR HERE "PERTINENCY" WAS MADE TO APPEAR "WITH
UNDISPUTABLE CLARITY."  ID., AT 214.  FIRST OF ALL, IT GOES WITHOUT
SAYING THAT THE SCOPE OF THE COMMITTEE'S AUTHORITY WAS FOR THE HOUSE,
NOT A WITNESS, TO DETERMINE, SUBJECT TO THE ULTIMATE REVIEWING
RESPONSIBILITY OF THIS COURT.  WHAT WE DEAL WITH HERE IS WHETHER
PETITIONER WAS SUFFICIENTLY APPRISED OF "THE TOPIC UNDER INQUIRY" THUS
AUTHORIZED "AND THE CONNECTIVE REASONING WHEREBY THE PRECISE QUESTIONS
ASKED RELATED TO IT."  ID., AT 215.  IN LIGHT OF HIS PREPARED
MEMORANDUM OF CONSTITUTIONAL OBJECTIONS THERE CAN BE NO DOUBT THAT THIS
PETITIONER WAS WELL AWARE OF THE SUBCOMMITTEE'S AUTHORITY AND PURPOSE
TO QUESTION HIM AS IT DID.  SEE P. 123, SUPRA.  IN ADDITION THE OTHER
SOURCES OF THIS INFORMATION WHICH WE RECOGNIZED IN WATKINS, SUPRA, AT
209-215, LEAVE NO ROOM FOR A "PERTINENCY" OBJECTION ON THIS RECORD. 
THE SUBJECT MATTER OF THE INQUIRY HAD BEEN IDENTIFIED AT THE
COMMENCEMENT OF THE INVESTIGATION AS COMMUNIST INFILTRATION INTO THE
FIELD OF EDUCATION.  (FN22)  JUST PRIOR TO PETITIONER'S APPEARANCE
BEFORE THE SUBCOMMITTEE, THE SCOPE OF THE DAY'S HEARINGS HAD BEEN
ANNOUNCED AS "IN THE MAIN COMMUNISM IN EDUCATION AND THE EXPERIENCES
AND BACKGROUND IN THE PARTY BY FRANCIS X. T. CROWLEY.  IT WILL DEAL
WITH ACTIVITIES IN MICHIGAN, BOSTON, AND IN SOME SMALL DEGREE, NEW
YORK."  PETITIONER HAD HEARD THE SUBCOMMITTEE INTERROGATE THE WITNESS
CROWLEY ALONG THE SAME LINES AS HE, PETITIONER, WAS EVIDENTLY TO BE
QUESTIONED, AND HAD LISTENED TO CROWLEY'S TESTIMONY IDENTIFYING HIM AS
A FORMER MEMBER OF AN ALLEGED COMMUNIST STUDENT ORGANIZATION AT THE
UNIVERSITY OF MICHIGAN WHILE THEY BOTH WERE IN ATTENDANCE THERE. 
(FN23)  FURTHER, PETITIONER HAD STOOD MUTE IN THE FACE OF THE
CHAIRMAN'S STATEMENT AS TO WHY HE HAD BEEN CALLED AS A WITNESS BY THE
SUBCOMMITTEE.  (FN24)  AND, LASTLY, UNLIKE WATKINS, ID., AT 182-185,
PETITIONER REFUSED TO ANSWER QUESTIONS AS TO HIS OWN COMMUNIST PARTY
AFFILIATIONS, WHOSE PERTINENCY OF COURSE WAS CLEAR BEYOND DOUBT. 

PETITIONER'S CONTENTIONS ON THIS ASPECT OF THE CASE CANNOT BE
SUSTAINED. 

                         CONSTITUTIONAL CONTENTIONS. 

OUR FUNCTION, AT THIS POINT, IS PURELY ONE OF CONSTITUTIONAL
ADJUDICATION IN THE PARTICULAR CASE AND UPON THE PARTICULAR RECORD
BEFORE US, NOT TO PASS JUDGMENT UPON THE GENERAL WISDOM OR EFFICACY OF
THE ACTIVITIES OF THIS COMMITTEE IN A VEXING AND COMPLICATED FIELD. 

THE PRECISE CONSTITUTIONAL ISSUE CONFRONTING US IS WHETHER THE
SUBCOMMITTEE'S INQUIRY INTO PETITIONER'S PAST OR PRESENT MEMBERSHIP IN
THE COMMUNIST PARTY (FN25) TRANSGRESSED THE PROVISIONS OF THE FIRST
AMENDMENT, (FN26) WHICH OF COURSE REACH AND LIMIT CONGRESSIONAL
INVESTIGATIONS.  WATKINS, SUPRA, AT 197. 

THE COURT'S PAST CASES ESTABLISH SURE GUIDES TO DECISION. 
UNDENIABLY, THE FIRST AMENDMENT IN SOME CIRCUMSTANCES PROTECTS AN
INDIVIDUAL FROM BEING COMPELLED TO DISCLOSE HIS ASSOCIATIONAL
RELATIONSHIPS.  HOWEVER, THE PROTECTIONS OF THE FIRST AMENDMENT, UNLIKE
A PROPER CLAIM OF THE PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE
FIFTH AMENDMENT, DO NOT AFFORD A WITNESS THE RIGHT TO RESIST INQUIRY IN
ALL CIRCUMSTANCES.  WHERE FIRST AMENDMENT RIGHTS ARE ASSERTED TO BAR
GOVERNMENTAL INTERROGATION RESOLUTION OF THE ISSUE ALWAYS INVOLVES A
BALANCING BY THE COURTS OF THE COMPETING PRIVATE AND PUBLIC INTERESTS
AT STAKE IN THE PARTICULAR CIRCUMSTANCES SHOWN.  THESE PRINCIPLES WERE
RECOGNIZED IN THE WATKINS CASE, WHERE, IN SPEAKING OF THE FIRST
AMENDMENT IN RELATION TO CONGRESSIONAL INQUIRIES, WE SAID (AT P. 198):
"IT IS MANIFEST THAT DESPITE THE ADVERSE EFFECTS WHICH FOLLOW UPON
COMPELLED DISCLOSURE OF PRIVATE MATTERS, NOT ALL SUCH INQUIRIES ARE
BARRED  ...  .  THE CRITICAL ELEMENT IS THE EXISTENCE OF, AND THE
WEIGHT TO BE ASCRIBED TO, THE INTEREST OF THE CONGRESS IN DEMANDING
DISCLOSURES FROM AN UNWILLING WITNESS."  SEE ALSO AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 399-400; UNITED STATES V.
RUMELY, SUPRA, AT 43-44.  MORE RECENTLY IN NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE V. ALABAMA, 357 U.S. 449, 463-466, WE
APPLIED THE SAME PRINCIPLES IN JUDGING STATE ACTION CLAIMED TO INFRINGE
RIGHTS OF ASSOCIATION ASSURED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, AND STATED THAT THE "'SUBORDINATING INTEREST OF
THE STATE MUST BE COMPELLING'" IN ORDER TO OVERCOME THE INDIVIDUAL
CONSTITUTIONAL RIGHTS AT STAKE.  SEE SWEEZY V. NEW HAMPSHIRE, 354 U.S.
234, 255, 265 (CONCURRING OPINION).  IN LIGHT OF THESE PRINCIPLES WE
NOW CONSIDER PETITIONER'S FIRST AMENDMENT CLAIMS. 

THE FIRST QUESTION IS WHETHER THIS INVESTIGATION WAS RELATED TO A
VALID LEGISLATIVE PURPOSE, FOR CONGRESS MAY NOT CONSTITUTIONALLY
REQUIRE AN INDIVIDUAL TO DISCLOSE HIS POLITICAL RELATIONSHIPS OR OTHER
PRIVATE AFFAIRS EXCEPT IN RELATION TO SUCH A PURPOSE.  SEE WATKINS V.
UNITED STATES, SUPRA, AT 198. 

THAT CONGRESS HAS WIDE POWER TO LEGISLATE IN THE FIELD OF COMMUNIST
ACTIVITY IN THIS COUNTRY, AND TO CONDUCT APPROPRIATE INVESTIGATIONS IN
AID THEREOF, IS HARDLY DEBATABLE.  THE EXISTENCE OF SUCH POWER HAS
NEVER BEEN QUESTIONED BY THIS COURT, AND IT IS SUFFICIENT TO SAY,
WITHOUT PARTICULARIZATION, THAT CONGRESS HAS ENACTED OR CONSIDERED IN
THIS FIELD A WIDE RANGE OF LEGISLATIVE MEASURES, NOT A FEW OF WHICH
HAVE STEMMED FROM RECOMMENDATIONS OF THE VERY COMMITTEE WHOSE ACTIONS
HAVE BEEN DRAWN IN QUESTION HERE.  (FN27)  IN THE LAST ANALYSIS THIS
POWER RESTS ON THE RIGHT OF SELF-PRESERVATION, "THE ULTIMATE VALUE OF
ANY SOCIETY," DENNIS V. UNITED STATES, 341 U.S. 494, 509. 
JUSTIFICATION FOR ITS EXERCISE IN TURN RESTS ON THE LONG AND WIDELY
ACCEPTED VIEW THAT THE TENETS OF THE COMMUNIST PARTY INCLUDE THE
ULTIMATE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE, A VIEW WHICH HAS BEEN GIVEN FORMAL EXPRESSION BY THE
CONGRESS.  (FN28) 

ON THESE PREMISES, THIS COURT IN ITS CONSTITUTIONAL ADJUDICATIONS HAS
CONSISTENTLY REFUSED TO VIEW THE COMMUNIST PARTY AS AN ORDINARY
POLITICAL PARTY, AND HAS UPHELD FEDERAL LEGISLATION AIMED AT THE
COMMUNIST PROBLEM WHICH IN A DIFFERENT CONTEXT WOULD CERTAINLY HAVE
RAISED CONSTITUTIONAL ISSUES OF THE GRAVEST CHARACTER.  SEE, E.G.,
CARLSON V. LANDON, 342 U.S. 524; GALVAN V. PRESS, 347 U.S. 522.  ON THE
SAME PREMISES THIS COURT HAS UPHELD UNDER THE FOURTEENTH AMENDMENT
STATE LEGISLATION REQUIRING THOSE OCCUPYING OR SEEKING PUBLIC OFFICE TO
DISCLAIM KNOWING MEMBERSHIP IN ANY ORGANIZATION ADVOCATING OVERTHROW OF
THE GOVERNMENT BY FORCE AND VIOLENCE, WHICH LEGISLATION NONE CAN AVOID
SEEING WAS AIMED AT MEMBERSHIP IN THE COMMUNIST PARTY.  SEE GERENDE V.
BOARD OF SUPERVISORS, 341 U.S. 56; GARNER V. BOARD OF PUBLIC WORKS, 341
U.S. 716.  SEE ALSO BEILAN V. BOARD OF PUBLIC EDUCATION, 357 U.S. 399;
LERNER V. CASEY, 357 U.S. 468; ADLER V. BOARD OF EDUCATION, 342 U.S.
485.  SIMILARLY, IN OTHER AREAS, THIS COURT HAS RECOGNIZED THE CLOSE
NEXUS BETWEEN THE COMMUNIST PARTY AND VIOLENT OVERTHROW OF GOVERNMENT. 
SEE DENNIS V. UNITED STATES, SUPRA; AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, SUPRA.  TO SUGGEST THAT BECAUSE THE COMMUNIST PARTY MAY ALSO
SPONSOR PEACEABLE POLITICAL REFORMS THE CONSTITUTIONAL ISSUES BEFORE US
SHOULD NOW BE JUDGED AS IF THAT PARTY WERE JUST AN ORDINARY POLITICAL
PARTY FROM THE STANDPOINT OF NATIONAL SECURITY, IS TO ASK THIS COURT TO
BLIND ITSELF TO WORLD AFFAIRS WHICH HAVE DETERMINED THE WHOLE COURSE OF
OUR NATIONAL POLICY SINCE THE CLOSE OF WORLD WAR II, AFFAIRS TO WHICH
JUDGE LEARNED HAND GAVE VIVID EXPRESSION IN HIS OPINION IN UNITED
STATES V. DENNIS, 183 F.2D 201, 213, AND TO THE VAST BURDENS WHICH
THESE CONDITIONS HAVE ENTAILED FOR THE ENTIRE NATION. 

WE THINK THAT INVESTIGATORY POWER IN THIS DOMAIN IS NOT TO BE DENIED
CONGRESS SOLELY BECAUSE THE FIELD OF EDUCATION IS INVOLVED.  NOTHING IN
THE PREVAILING OPINIONS IN SWEEZY V. NEW HAMPSHIRE, SUPRA, STANDS FOR A
CONTRARY VIEW.  THE VICE EXISTING THERE WAS THAT THE QUESTIONING
CONNECTED WITH THE COMMUNIST PARTY, AS TO THE CONTENTS OF A LECTURE HE
HAD GIVEN AT THE UNIVERSITY OF NEW HAMPSHIRE, AND AS TO HIS CONNECTIONS
WITH THE PROGRESSIVE PARTY, THEN ON THE BALLOT AS A NORMAL POLITICAL
PARTY IN SOME 26 STATES, WAS TOO FAR REMOVED FROM THE PREMISES ON WHICH
THE CONSTITUTIONALITY OF THE STATE'S INVESTIGATION HAD TO DEPEND TO
WITHSTAND ATTACK UNDER THE FOURTEENTH AMENDMENT.  SEE THE CONCURRING
OPINION IN SWEEZY, SUPRA, AT 261, 265, 266, N. 3.  THIS IS A VERY
DIFFERENT THING FROM INQUIRING INTO THE EXTENT TO WHICH THE COMMUNIST
PARTY HAS SUCCEEDED IN INFILTRATING INTO OUR UNIVERSITIES, OR
ELSEWHERE, PERSONS AND GROUPS COMMITTED TO FURTHERING THE OBJECTIVE OF
OVERTHROW.  SEE NOTE 20, SUPRA.  INDEED WE DO NOT UNDERSTAND PETITIONER
HERE TO SUGGEST THAT CONGRESS IN NO CIRCUMSTANCES MAY INQUIRE INTO
COMMUNIST ACTIVITY IN THE FIELD OF EDUCATION.  (FN29)  RATHER, HIS
POSITION IS IN EFFECT THAT THIS PARTICULAR INVESTIGATION WAS AIMED NOT
AT THE REVOLUTIONARY ASPECTS BUT AT THE THEORETICAL CLASSROOM
DISCUSSION OF COMMUNISM. 

IN OUR OPINION THIS POSITION RESTS ON A TOO CONSTRICTED VIEW OF THE
NATURE OF THE INVESTIGATORY PROCESS, AND IS NOT SUPPORTED BY A FAIR
ASSESSMENT OF THE RECORD BEFORE US.  AN INVESTIGATION OF ADVOCACY OF OR
PREPARATION FOR OVERTHROW CERTAINLY EMBRACES THE RIGHT TO IDENTIFY A
WITNESS AS A MEMBER OF THE COMMUNIST PARTY, SEE BARSKY V. UNITED
STATES, 83 U.S. APP. D.C. 127, 167 F.2D 241, AND TO INQUIRE INTO THE
VARIOUS MANIFESTATIONS OF THE PARTY'S TENETS.  THE STRICT REQUIREMENTS
OF A PROSECUTION UNDER THE SMITH ACT, (FN30) SEE DENNIS V. UNITED
STATES, SUPRA, AND YATES V. UNITED STATES, 354 U.S. 298, ARE NOT THE
MEASURE OF THE PERMISSIBLE SCOPE OF A CONGRESSIONAL INVESTIGATION INTO
"OVERTHROW," FOR OF NECESSITY THE INVESTIGATORY PROCESS MUST PROCEED
STEP BY STEP.  NOR CAN IT FAIRLY BE CONCLUDED THAT THIS INVESTIGATION
WAS DIRECTED AT CONTROLLING WHAT IS BEING TAUGHT AT OUR UNIVERSITIES
RATHER THAN AT OVERTHROW.  THE STATEMENT OF THE SUBCOMMITTEE CHAIRMAN
AT THE OPENING OF THE INVESTIGATION EVINCES NO SUCH INTENTION, (FN31)
AND SO FAR AS THIS RECORD REVEALS NOTHING THEREAFTER TRANSPIRED WHICH
WOULD JUSTIFY OUR HOLDING THAT THE THRUST OF THE INVESTIGATION LATER
CHANGED.  THE RECORD DISCLOSES CONSIDERABLE TESTIMONY CONCERNING THE
FOREIGN DOMINATION AND REVOLUTIONARY PURPOSES AND EFFORTS OF THE
COMMUNIST PARTY.  (FN32)  THAT THERE WAS ALSO TESTIMONY ON THE ABSTRACT
PHILOSOPHICAL LEVEL DOES NOT DETRACT FROM THE DOMINANT THEME OF THIS
INVESTIGATION - COMMUNIST INFILTRATION FURTHERING THE ALLEGED ULTIMATE
PURPOSE OF OVERTHROW.  AND CERTAINLY THE CONCLUSION WOULD NOT BE
JUSTIFIED THAT THE QUESTIONING OF PETITIONER WOULD HAVE EXCEEDED
PERMISSIBLE BOUNDS HAD HE NOT SHUT OFF THE SUBCOMMITTEE AT THE
THRESHOLD. 

NOR CAN WE ACCEPT THE FURTHER CONTENTION THAT THIS INVESTIGATION
SHOULD NOT BE DEEMED TO HAVE BEEN IN FURTHERANCE OF A LEGISLATIVE
PURPOSE BECAUSE THE TRUE OBJECTIVE OF THE COMMITTEE AND OF THE CONGRESS
WAS PURELY "EXPOSURE."  SO LONG AS CONGRESS ACTS IN PURSUANCE OF ITS
CONSTITUTIONAL POWER, THE JUDICIARY LACKS AUTHORITY TO INTERVENE ON THE
BASIS OF THE MOTIVES WHICH SPURRED THE EXERCISE OF THAT POWER.  ARIZONA
V. CALIFORNIA, 283 U.S. 423, 455, AND CASES THERE CITED.  "IT IS, OF
COURSE, TRUE," AS WAS SAID IN MCCRAY V. UNITED STATES, 195 U.S. 27, 55,
"THAT IF THERE BE NO AUTHORITY IN THE JUDICIARY TO RESTRAIN A LAWFUL
EXERCISE OF POWER BY ANOTHER DEPARTMENT OF THE GOVERNMENT, WHERE A
WRONG MOTIVE OR PURPOSE HAS IMPELLED TO THE EXERTION OF THE POWER, THAT
ABUSES OF A POWER CONFERRED MAY BE TEMPORARILY EFFECTUAL.  THE REMEDY
FOR THIS, HOWEVER, LIES, NOT IN THE ABUSE BY THE JUDICIAL AUTHORITY OF
ITS FUNCTIONS, BUT IN THE PEOPLE, UPON WHOM, AFTER ALL, UNDER OUR
INSTITUTIONS, RELIANCE MUST BE PLACED FOR THE CORRECTION OF ABUSES
COMMITTED IN THE EXERCISE OF A LAWFUL POWER."  THESE PRINCIPLES OF
COURSE APPLY AS WELL TO COMMITTEE INVESTIGATIONS INTO THE NEED FOR
LEGISLATION AS TO THE ENACTMENTS WHICH SUCH INVESTIGATIONS MAY
PRODUCE.  CF. TENNEY V. BRANDHOVE, 341 U.S. 367, 377-378.  THUS, IN
STATING IN THE WATKINS CASE, P. 200, THAT "THERE IS NO CONGRESSIONAL
POWER TO EXPOSE FOR THE SAKE OF EXPOSURE," WE AT THE SAME TIME DECLINED
TO INQUIRE INTO THE "MOTIVES OF COMMITTEE MEMBERS," AND RECOGNIZED THAT
THEIR "MOTIVES ALONE WOULD NOT VITIATE AN INVESTIGATION WHICH HAD BEEN
INSTITUTED BY A HOUSE OF CONGRESS IF THAT ASSEMBLY'S LEGISLATIVE
PURPOSE IS BEING SERVED."  HAVING SCRUTINIZED THIS RECORD WE CANNOT SAY
THAT THE UNANIMOUS PANEL OF THE COURT OF APPEALS WHICH FIRST CONSIDERED
THIS CASE WAS WRONG IN CONCLUDING THAT "THE PRIMARY PURPOSES OF THE
INQUIRY WERE IN AID OF LEGISLATIVE PROCESSES."  240 F.2D, AT 881. 
(FN33)  CERTAINLY THIS IS NOT A CASE LIKE KILBOURN V. THOMPSON, 103
U.S. 168, 192, WHERE "THE HOUSE OF REPRESENTATIVES NOT ONLY EXCEEDED
THE LIMIT OF ITS OWN AUTHORITY, BUT ASSUMED A POWER WHICH COULD ONLY BE
PROPERLY EXERCISED BY ANOTHER BRANCH OF THE GOVERNMENT, BECAUSE IT WAS
IN ITS NATURE CLEARLY JUDICIAL."  SEE MCGRAIN V. DAUGHERTY, 273 U.S.
135, 171.  THE CONSTITUTIONAL LEGISLATIVE POWER OF CONGRESS IN THIS
INSTANCE IS BEYOND QUESTION. 

FINALLY, THE RECORD IS BARREN OF OTHER FACTORS WHICH IN THEMSELVES
MIGHT SOMETIMES LEAD TO THE CONCLUSION THAT THE INDIVIDUAL INTERESTS AT
STAKE WERE NOT SUBORDINATE TO THOSE OF THE STATE.  THERE IS NO
INDICATION IN THIS RECORD THAT THE SUBCOMMITTEE WAS ATTEMPTING TO
PILLORY WITNESSES.  NOR DID PETITIONER'S APPEARANCE AS A WITNESS FOLLOW
FROM INDISCRIMINATE DRAGNET PROCEDURES, LACKING IN PROBABLE CAUSE FOR
BELIEF THAT HE POSSESSED INFORMATION WHICH MIGHT BE HELPFUL TO THE
SUBCOMMITTEE.  (FN34)  AND THE RELEVANCY OF THE QUESTIONS PUT TO HIM BY
THE SUBCOMMITTEE IS NOT OPEN TO DOUBT. 

WE CONCLUDE THAT THE BALANCE BETWEEN THE INDIVIDUAL AND THE
GOVERNMENTAL INTERESTS HERE AT STAKE MUST BE STRUCK IN FAVOR OF THE
LATTER, AND THAT THEREFORE THE PROVISIONS OF THE FIRST AMENDMENT HAVE
NOT BEEN OFFENDED. 

WE HOLD THAT PETITIONER'S CONVICTION FOR CONTEMPT OF CONGRESS
DISCLOSES NO INFIRMITY, AND THAT THE JUDGMENT OF THE COURT OF APPEALS
MUST BE AFFIRMED. 

FN1  "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 JOINT
COMMITTEE ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO
HOUSES OF CONGRESS, 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 JAIL FOR NOT LESS THAN
ONE MONTH NOR MORE THAN TWELVE MONTHS." 

FN2  IN THE WORDS OF THE PANEL OF THE COURT OF APPEALS WHICH FIRST
HEARD THE CASE THIS MEMORANDUM "CAN BEST BE DESCRIBED AS A LENGTHY
LEGAL BRIEF ATTACKING THE JURISDICTION OF THE COMMITTEE TO ASK
APPELLANT ANY QUESTIONS OR TO CONDUCT ANY INQUIRY AT ALL, BASED ON THE
FIRST, NINTH AND TENTH AMENDMENTS, THE PROHIBITION AGAINST BILLS OF
ATTAINDER, AND THE DOCTRINE OF SEPARATION OF POWERS."  100 U.S. APP.
D.C., AT 17, N. 4, 240 F.2D, AT 879, N. 4. 

FN3  WE TAKE THIS TO MEAN THE PRIVILEGE AGAINST SELF-INCRIMINATION. 

FN4  SEE NOTE 1, SUPRA. 

FN5  H. RES. 5, 83D CONG., 1ST SESS., 99 CONG. REC. 15, 18, 24.  THE
COMMITTEE'S CHARTER APPEARS AS PARAGRAPH 17(B) OF RULE XI.  REFERENCES
TO THE RULE THROUGHOUT THIS OPINION ARE INTENDED TO SIGNIFY THAT
PARAGRAPH. 

FN6  "THE COMMITTEE ON UN-AMERICAN ACTIVITIES, AS A WHOLE OR BY
SUBCOMMITTEE, IS AUTHORIZED TO MAKE FROM TIME TO TIME INVESTIGATIONS OF
(1) THE EXTENT, CHARACTER, AND OBJECTS OF UN-AMERICAN PROPAGANDA
ACTIVITIES IN THE UNITED STATES, (2) THE DIFFUSION WITHIN THE UNITED
STATES OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT IS INSTIGATED FROM
FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN AND ATTACKS THE PRINCIPLE OF
THE FORM OF GOVERNMENT AS GUARANTEED BY OUR CONSTITUTION, AND (3) ALL
OTHER QUESTIONS IN RELATION THERETO THAT WOULD AID CONGRESS IN ANY
NECESSARY REMEDIAL LEGISLATION."  H. RES. 5, 83D CONG., 1ST SESS., 99
CONG. REC. 15, 18, 24.  THE RULE REMAINS CURRENT IN THE SAME FORM.  H.
RES. 7, 86TH CONG., 1ST SESS., CONG. REC., JAN. 7, 1959, P. 13. 

FN7  HAD WATKINS REACHED TO THE EXTENT NOW CLAIMED BY PETITIONER A
REVERSAL OF THE JUDGMENT OF THE COURT OF APPEALS, NOT A REMAND FOR
FURTHER CONSIDERATION, WOULD HAVE BEEN REQUIRED WHEN THIS CASE FIRST
CAME TO US. 

FN8  H. RES. 282, 75TH CONG., 3D SESS., 83 CONG. REC. 7568, 7586. 

FN9  SEE DEBATE ON THE ORIGINAL AUTHORIZING RESOLUTION, 75TH CONG.,
3D SESS., 83 CONG.  REC. 7567, 7572-7573, 7577, 7583-7586. 

FN10  H.R. REP. NO. 2, 76TH CONG., 1ST SESS.; H.R. REP. NO. 1476,
76TH CONG., 3D SESS.; H.R. REP. NO. 1, 77TH CONG., 1ST SESS.; H.R. REP.
NO. 2277, 77TH CONG., 2D SESS.; H.R.  REP. NO. 2748, 77TH CONG., 2D
SESS.; H.R. REP. NO. 2233, 79TH CONG., 2D SESS.; H.R. REP.  NO. 2742,
79TH CONG., 2D SESS.; REPORT OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES
TO THE UNITED STATES HOUSE OF REPRESENTATIVES, 80TH CONG., 2D SESS.,
DECEMBER 31, 1948 (COMMITTEE PRINT); H.R. REP. NO. 1950, 81ST CONG., 2D
SESS.; H.R. REP. NO. 3249, 81ST CONG., 2D SESS.; H.R. REP. NO. 2431,
82D CONG., 2D SESS.; H.R. REP. NO. 2516, 82D CONG., 2D SESS.; H.R. REP.
NO. 1192, 83D CONG., 2D SESS.; H.R. REP. NO. 57, 84TH CONG., 1ST SESS.;
H.R. REP. NO. 1648, 84TH CONG., 2D SESS.; H.R. REP. NO. 53, 85TH CONG.,
1ST SESS.; H.R. REP. NO. 1360, 85TH CONG., 2D SESS. 

FN11  THE SCOPE OF THE PROGRAM WAS AS FOLLOWS: 

"1.  TO EXPOSE AND FERRET OUT THE COMMUNISTS AND COMMUNIST
SYMPATHIZERS IN THE FEDERAL GOVERNMENT. 

"2.  TO SPOTLIGHT THE SPECTACLE OF HAVING OUTRIGHT COMMINISTS
CONTROLLING AND DOMINATING SOME OF THE MOST VITAL UNIONS IN AMERICAN
LABOR. 

"3.  TO INSTITUTE A COUNTEREDUCATIONAL PROGRAM AGAINST THE SUBSERVISE
PROPAGANDA WHICH HAS BEEN HURLED AT THE AMERICAN PEOPLE. 

"4.  INVESTIGATION OF THOSE GROUPS AND MOVEMENTS WHICH ARE TRYING TO
DISSIPATE OUR ATOMIC BOMB KNOWLEDGE FOR THE BENEFIT OF A FOREIGN
POWER. 

"5.  INVESTIGATION OF COMMINIST INFLUENCES IN HOLLYWOOD. 

"6.  INVESTIGATION OF COMMUNIST INFLUENCES IN EDUCATION. 

"7.  ORGANIZATION OF THE RESEARCH STAFF SO AS TO FURNISH REFERENCE
SERVICE TO MEMBERS OF CONGRESS AND TO KEEP THEM CURRENTLY INFORMED ON
ALL SUBJECTS RELATING TO SUBVERSIVE AND UN-AMERICAN ACTIVITIES IN THE
UNITED STATES. 

"8.  CONTINUED ACCUMULATION OF FILES AND RECORDS TO BE PLACED AT THE
DISPOSAL OF THE INVESTIGATIVE UNITS OF THE GOVERNMENT AND ARMED
SERVICES."  REPORT OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES TO THE
UNITED STATES HOUSE OF REPRESENTATIVES, 80TH CONG., 2D SESS., DEC. 31,
1948, 2-3 (COMMITTEE PRINT). 

FN12  REPORT OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES TO THE UNITED
STATES HOUSE OF REPRESENTATIVES, 80TH CONG., 2D SESS., DECEMBER 31,
1948, 15-21 (COMMITTEE PRINT); H.R. REP. NO. 1950, 81ST CONG., 2D SESS.
1-10; H.R. REP. NO. 3249, 81ST CONG., 2D SESS.  5-6, 27-29; H.R. REP.
NO. 2431, 82D CONG., 2D SESS. 6-9; H.R. REP. NO. 2516, 82D CONG., 2D
SESS. 7-67, 69-73. 

FN13  H. RES. 26, 76TH CONG., 1ST SESS., 84 CONG. REC. 1098, 1128; H.
RES. 321, 76TH CONG., 3D SESS., 86TH CONG. REC. 532, 605; H. RES. 90,
77TH CONG., 1ST SESS., 87 CONG.  REC. 886, 899; H. RES. 420, 77TH
CONG., 2D SESS., 88 CONG. REC. 2282, 2297; H. RES. 65, 78TH CONG., 1ST
SESS., 89 CONG. REC. 795, 810.  SEE NOTE 15, INFRA. 

FN14  SEE, E.G., H. RES. 510, 75TH CONG., 3D SESS., 83 CONG. REC.
8637, 8638 (1938); H. RES. 91, 77TH CONG., 1ST SESS., 87 CONG. REC. 899
(1941); H. RES. 415, 78TH CONG., 2D SESS., 90 CONG. REC. 763 (1944); H.
RES. 77, 80TH CONG., 1ST SESS., 93 CONG. REC. 699, 700 (1947); H. RES.
152, 80TH CONG., 1ST SESS., 93 CONG.  REC. 3074 (1947); H. RES. 482,
81ST CONG., 2D SESS., 96 CONG. REC. 3941, 3944 (1950); H. RES. 119, 83D
CONG., 1ST SESS., 99 CONG. REC. 1358-1359, 1361-1362 (1953); H. RES.
352, 84TH CONG., 2D SESS., 102 CONG. REC. 1585, 1718-1719 (1956); H.
RES. 137, 86TH CONG., 1ST SESS., CONG. REC., JAN. 29, 1959, P. 1286. 

FN15  H. RES. 5, 79TH CONG., 1ST SESS., 91 CONG. REC. 10, 15.  IN
1946 THE COMMITTEE'S CHARTER WAS EMBODIED IN THE LEGISLATIVE
REORGANIZATION ACT OF 1946, 60 STAT. 812, 828.  SINCE THEN THE HOUSE
HAS CONTINUED THE LIFE OF THE COMMITTEE BY MAKING THE CHARTER
PROVISIONS OF THE ACT PART OF THE HOUSE RULES FOR EACH NEW CONGRESS. 
H. RES. 5, 80TH CONG., 1ST SESS., 93 CONG. REC. 38; H. RES. 5, 81ST
CONG., 1ST SESS., 95 CONG. REC. 10, 11; H. RES.  7, 82D CONG., 1ST
SESS., 97 CONG. REC. 9, 17, 19; H. RES. 5, 83D CONG., 1ST SESS., 99
CONG. REC. 15, 18, 24; H. RES. 5, 84TH CONG., 1ST SESS., 101 CONG. REC.
11; H. RES. 5, 85TH CONG., 1ST SESS., 103 CONG. REC. 47; H. RES. 7,
86TH CONG., 1ST SESS., CONG. REC., JAN. 7, 1959, P. 13. 

FN16  HEARINGS BEFORE HOUSE SPECIAL COMMITTEE ON UN-AMERICAN
ACTIVITIES ON H. RES.  282, 75TH CONG., 3D SESS. 943-973. 

FN17  HEARINGS BEFORE HOUSE SPECIAL COMMITTEE ON UN-AMERICAN
ACTIVITIES ON H. RES.  282, 76TH CONG., 1ST SESS. 6827-6911. 

FN18  SEE NOTE 11, SUPRA. 

FN19  DEFENSE AREA HEARINGS AT DETROIT IN 1952 INVOLVED INQUIRIES
INTO COMMUNIST ACTIVITIES AMONG THE STUDENTS AND TEACHERS IN MICHIGAN
SCHOOLS AND UNIVERSITIES.  H.R.  REP. NO. 2516, 82D CONG., 2D SESS.
10.  SIMILAR INVESTIGATIONS WERE CONDUCTED BY THE COMMITTEE THE SAME
YEAR IN THE CHICAGO DEFENSE AREA.  ID., AT 28.  IN 1953 THE COMMITTEE
INVESTIGATED ALLEGED COMMUNIST INFILTRATION INTO THE PUBLIC SCHOOL
SYSTEMS IN PHILADELPHIA AND NEW YORK, H.R. REP. NO. 1192, 83D CONG., 2D
SESS. 2, 4. 

FN20  IN THE COURSE OF THAT DEBATE A MEMBER OF THE UN-AMERICAN
ACTIVITIES COMMITTEE, REPRESENTATIVE JACKSON, COMMENTED:  "SO FAR AS
EDUCATION IS CONCERNED, IF THE AMERICAN EDUCATORS, AND IF THE GENTLEMEN
WHO ARE OBJECTING TO THE INVESTIGATION OF COMMUNISM AND COMMUNISTS IN
EDUCATION, WILL RECOGNIZE A VALID DISTINCTION, I WANT TO POINT OUT THIS
IS NOT A BLUNDERBUSS APPROACH TO THE PROBLEM OF COMMUNISM IN
EDUCATION.  WE ARE NOT INTERESTED IN TEXTBOOKS.  WE ARE NOT INTERESTED
IN THE CLASSROOM OPERATIONS OF THE UNIVERSITIES.  WE ARE INTERESTED
INSTEAD IN FINDING OUT WHO THE COMMUNISTS ARE AND WHAT THEY ARE DOING
TO FURTHER THE COMMUNIST CONSPIRACY.  I MAY SAY IN THAT CONNECTION THAT
WE HAVE SWORN TESTIMONY IDENTIFYING INDIVIDUALS PRESENTLY ON THE
CAMPUSES OF THIS COUNTRY, MEN WHO HAVE BEEN IDENTIFIED UNDER OATH AS
ONE-TIME MEMBERS OF THE COMMUNIST PARTY.  IS THERE ANY MEMBER OF THIS
BODY WHO WOULD SAY WE SHOULD NOT INVESTIGATE THIS SITUATION?"  83D
CONG., 1ST SESS., 99 CONG. REC. 1360. 

FN21  "THE CITIZEN, WHEN INTERROGATED ABOUT HIS PRIVATE AFFAIRS, HAS
A RIGHT BEFORE ANSWERING TO KNOW WHY THE INQUIRY IS MADE; AND IF THE
PURPOSE DISCLOSED IS NOT A LEGITIMATE ONE, HE MAY NOT BE COMPELLED TO
ANSWER."  298 U.S., AT 26. 

FN22  EXCERPTS FROM THE CHAIRMAN'S STATEMENT AT THE OPENING OF THE
INVESTIGATION ON FEBRUARY 25, 1953, AS TO THE NATURE OF THIS INQUIRY
ARE SET FORTH IN NOTE 31, INFRA. 

FN23  CROWLEY IMMEDIATELY PRECEDED PETITIONER ON THE WITNESS STAND. 
IT APPEARS TO BE UNDISPUTED THAT PETITIONER WAS IN THE HEARING ROOM AT
THE TIME THIS STATEMENT WAS MADE AND DURING CROWLEY'S TESTIMONY.  IN
HIS OWN EXAMINATION PETITIONER ACKNOWLEDGED KNOWING CROWLEY.    FN24
THE CHAIRMAN STATED AT THE HEARING, JUST BEFORE PETITIONER WAS
EXCUSED: 

"THAT THE EVIDENCE OR INFORMATION CONTAINED IN THE FILES OF THIS
COMMITTEE, SOME OF THEM IN THE NATURE OF EVIDENCE, SHOWS CLEARLY THAT
THE WITNESS HAS INFORMATION ABOUT COMMUNIST ACTIVITIES IN THE UNITED
STATES OF AMERICA, PARTICULARLY WHILE HE ATTENDED THE UNIVERSITY OF
MICHIGAN. 

"THAT INFORMATION WHICH THE WITNESS HAS WOULD BE VERY VALUABLE TO
THIS COMMITTEE AND ITS WORK." 

FN25  BECAUSE THE SUSTAINING OF PETITIONER'S CONVICTION ON ANY ONE OF
THE FIVE COUNTS OF THE INDICTMENT SUFFICES FOR AFFIRMANCE OF THE
JUDGMENT UNDER REVIEW, WE STATE THE CONSTITUTIONAL ISSUE ONLY IN TERMS
OF PETITIONER'S REFUSALS TO ANSWER THE QUESTIONS INVOLVED IN COUNTS ONE
AND TWO IN ORDER TO SHARPEN DISCUSSION.  HOWEVER, WE CONSIDER HIS
REFUSAL TO ANSWER THE QUESTION EMBRACED IN COUNT FOUR WOULD REQUIRE THE
SAME CONSTITUTIONAL RESULT.  AS TO COUNTS THREE AND FIVE, SEE P. 115,
SUPRA. 

FN26  "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." 

FN27  SEE, LEGISLATIVE RECOMMENDATIONS BY HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES, SUBSEQUENT ACTION TAKEN BY CONGRESS OR EXECUTIVE
AGENCIES (A RESEARCH STUDY BY LEGISLATIVE REFERENCE SERVICE OF THE
LIBRARY OF CONGRESS), COMMITTEE ON UN-AMERICAN ACTIVITIES, HOUSE OF
REPRESENTATIVES, 85TH CONG., 2D SESS., JUNE 1958. 

FN28  SEE, SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, TITLE I OF THE
INTERNAL SECURITY ACT OF 1950, SEC. 2, 64 STAT. 987-989.  SEE ALSO
CARLSON V. LANDON, 342 U.S. 524, 535, N. 21. 

FN29  THE AMICUS BRIEF OF THE AMERICAN ASSOCIATION OF UNIVERSITY
PROFESSORS STATES AT PAGE 24: "THE CLAIMS OF ACADEMIC FREEDOM CANNOT BE
ASSERTED UNQUALIFIEDLY.  THE SOCIAL INTEREST IT EMBODIES IS BUT ONE OF
A LARGER SET, WITHIN WHICH THE INTEREST IN NATIONAL SELF-PRESERVATION
AND ENLIGHTENED AND WELL-INFORMED LAW-MAKING ALSO PROMINENTLY APPEAR. 
WHEN TWO MAJOR INTERESTS COLLIDE, AS THEY DO IN THE PRESENT CASE,
NEITHER THE ONE NOR THE OTHER CAN CLAIM A PRIORI SUPREMACY.  BUT IT IS
IN THE NATURE OF OUR SYSTEM OF LAWS THAT THERE MUST BE DEMONSTRABLE
JUSTIFICATION FOR AN ACTION BY THE GOVERNMENT WHICH ENDANGERS OR DENIES
A FREEDOM GUARANTEED BY THE CONSTITUTION." 

FN30  54 STAT. 670, 18 U.S.C. SEC. 2385. 

FN31  THE FOLLOWING ARE EXCERPTS FROM THAT STATEMENT: 

"  ...  IN OPENING THIS HEARING, IT IS WELL TO MAKE CLEAR TO YOU AND
OTHERS JUST WHAT THE NATURE OF THIS INVESTIGATION IS. 

"FROM TIME TO TIME, THE COMMITTEE HAS INVESTIGATED COMMUNISTS AND
COMMUNIST ACTIVITIES WITHIN THE ENTERTAINMENT, NEWSPAPER, AND LABOR
FIELDS, AND ALSO WITHIN THE PROFESSIONS AND THE GOVERNMENT.  IN NO
INSTANCE HAS THE WORK OF THE COMMITTEE TAKEN ON THE CHARACTER OF AN
INVESTIGATION OF ENTERTAINMENT ORGANIZATIONS, NEWSPAPERS, LABOR UNIONS,
THE PROFESSIONS, OR THE GOVERNMENT, AS SUCH, AND IT IS NOT NOW THE
PURPOSE OF THIS COMMITTEE TO INVESTIGATE EDUCATION OR EDUCATIONAL
INSTITUTIONS, AS SUCH  ...  . 

     *         *         *         *      * 

"THE PURPOSE OF THE COMMITTEE IN INVESTIGATING COMMUNISTS AND
COMMUNIST ACTIVITIES WITHIN THE FIELD OF EDUCATION IS NO GREATER AND NO
LESS THAN ITS PURPOSE IN INVESTIGATING COMMUNISTS AND COMMUNIST
ACTIVITIES WITHIN THE FIELD OF LABOR OR ANY OTHER FIELD. 

"THE COMMITTEE IS CHARGED BY THE CONGRESS WITH THE RESPONSIBILITY OF
INVESTIGATING THE EXTENT, CHARACTER, AND OBJECTS OF UN-AMERICAN
PROPAGANDA ACTIVITIES IN THE UNITED STATES, THE DIFFUSION WITHIN THE
UNITED STATES OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT IS
INSTIGATED FROM FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN AND ATTACKS
THE PRINCIPLE OF THE FORM OF GOVERNMENT AS GUARANTEED BY OUR
CONSTITUTION AND ALL OTHER QUESTIONS IN RELATION THERETO THAT WOULD AID
CONGRESS IN ANY NECESSARY REMEDIAL LEGISLATION. 

"IT HAS BEEN FULLY ESTABLISHED IN TESTIMONY BEFORE CONGRESSIONAL
COMMITTEES AND BEFORE THE COURTS OF OUR LAND THAT THE COMMUNIST PARTY
OF THE UNITED STATES IS PART OF AN INTERNATIONAL CONSPIRACY WHICH IS
BEING USED AS A TOOL OR WEAPON BY A FOREIGN POWER TO PROMOTE ITS OWN
FOREIGN POLICY AND WHICH HAS FOR ITS OBJECT THE OVERTHROW OF THE
GOVERNMENTS OF ALL NON-COMMUNIST COUNTRIES, RESORTING TO THE USE OF
FORCE AND VIOLENCE, IF NECESSARY  ...  .  COMMUNISM AND COMMUNIST
ACTIVITIES CANNOT BE INVESTIGATED IN A VACUUM.  THE INVESTIGATION MUST,
OF NECESSITY, RELATE TO INDIVIDUALS AND, THEREFORE, THIS MORNING THE
COMMITTEE IS CALLING YOU (ONE, DAVIS) AS A PERSON KNOWN BY THIS
COMMITTEE TO HAVE BEEN AT ONE TIME A MEMBER OF THE COMMUNIST PARTY. 

     *         *         *  *         * 

"THE COMMITTEE IS EQUALLY CONCERNED WITH THE OPPORTUNITIES THAT THE
COMMUNIST PARTY HAS TO WIELD ITS INFLUENCE UPON MEMBERS OF THE TEACHING
PROFESSION AND STUDENTS THROUGH COMMUNISTS WHO ARE MEMBERS OF THE
TEACHING PROFESSION.  THEREFORE, THE OBJECTIVE OF THIS INVESTIGATION IS
TO ASCERTAIN THE CHARACTER, EXTENT AND OBJECTS OF COMMUNIST PARTY
ACTIVITIES WHEN SUCH ACTIVITIES ARE CARRIED ON BY MEMBERS OF THE
TEACHING PROFESSION WHO ARE SUBJECT TO THE DIRECTIVES AND DISCIPLINE OF
THE COMMUNIST PARTY."  THE FULL STATEMENT IS PRINTED AS THE APPENDIX TO
THE ORIGINAL COURT OF APPEALS OPINION, 100 U.S. APP. D.C. 22-24, 240
F.2D 884-886. 

FN32  THUS, EARLY IN THE INVESTIGATION ONE OF THE WITNESSES, HICKS,
TESTIFIED IN RESPONSE TO A QUESTION AS TO "THE GENERAL PURPOSE OF THE
COMMUNIST PARTY IN ENDEAVORING TO ORGANIZE A CELL OR UNIT AMONG THE
TEACHING PROFESSION" AT THE VARIOUS UNIVERSITIES THAT CONTRARY TO HIS
ORIGINAL VIEW: 

"  ...  IT IS VERY OBVIOUS TO ME THAT THE POPULAR FRONT (COMMUNIST
PROTECTION OF DEMOCRACY AGAINST FASCISM) WAS SIMPLY A DODGE THAT
HAPPENED IN THOSE PARTICULAR YEARS TO SERVE THE FOREIGN POLICY OF THE
SOVIET UNION; SO IT SEEMS TO ME THAT THE PARTY, IN ORGANIZING BRANCHES
IN THE COLLEGES, HAD TWO PURPOSES.  ONE WAS TO CARRY OUT THE EXISTING
LINE WHICH THEY WANTED TO MAKE A SHOW OF ADVANCING, AND THEN, OF
COURSE, THE OTHER WAS TO TRY TO HAVE A CORPS OF DISCIPLINED
REVOLUTIONARIES WHOM THEY COULD USE FOR OTHER PURPOSES WHEN THE TIME
CAME." 

FN33  WE AGREE WITH THE COURT OF APPEALS THAT THE ONE SENTENCE
APPEARING IN THE COMMITTEE'S REPORT FOR 1954, UPON WHICH PETITIONER
LARGELY PREDICATES HIS EXPOSURE ARGUMENT, BEARS LITTLE SIGNIFICANCE
WHEN READ IN THE CONTEXT OF THE FULL REPORT AND IN LIGHT OF THE ENTIRE
RECORD.  THIS SENTENCE READS:  "THE 1954 HEARINGS WERE SET UP BY THE
COMMITTEE IN ORDER TO DEMONSTRATE TO THE PEOPLE OF MICHIGAN THE FIELDS
OF CONCENTRATION OF THE COMMUNIST PARTY IN THE MICHIGAN AREA, AND THE
IDENTITY OF THOSE INDIVIDUALS RESPONSIBLE FOR ITS SUCCESS." 

FN34  SEE P. 124 AND NOTE 24, SUPRA. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

ON MAY 28, 1954, PETITIONER LLOYD BARENBLATT, THEN 31 YEARS OLD, AND
A TEACHER OF PSYCHOLOGY AT VASSAR COLLEGE, WAS SUMMONED TO APPEAR
BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON UN-AMERICAN
ACTIVITIES.  AFTER SERVICE OF THE SUMMONS, BUT BEFORE BARENBLATT
APPEARED ON JUNE 28, HIS FOUR-YEAR CONTRACT WITH VASSAR EXPIRED AND WAS
NOT RENEWED.  HE, THEREFORE, CAME TO THE COMMITTEE AS A PRIVATE CITIZEN
WITHOUT A JOB.  EARLIER THAT DAY, THE COMMITTEE'S INTEREST IN
BARENBLATT HAD BEEN AROUSED BY THE TESTIMONY OF AN EX-COMMUNIST NAMED
CROWLEY.  WHEN CROWLEY HAD FIRST APPEARED BEFORE THE UN-AMERICAN
ACTIVITIES COMMITTEE HE HAD STEADFASTLY REFUSED TO ADMIT OR DENY
COMMUNIST AFFILIATIONS OR TO IDENTIFY OTHERS AS COMMUNISTS.  AFTER THE
HOUSE REPORTED THIS REFUSAL TO THE UNITED STATES ATTORNEY FOR
PROSECUTION, CROWLEY "VOLUNTARILY" RETURNED AND ASKED TO TESTIFY.  HE
WAS SWORN IN AND INTERROGATED, BUT NOT BEFORE HE WAS MADE AWARE BY
VARIOUS COMMITTEE MEMBERS OF COMMITTEE POLICY TO "MAKE AN APPROPRIATE
RECOMMENDATION TO PROTECT ANY WITNESS WHO "FULLY COOPERATES WITH THE
COMMITTEE."  HE THEN TALKED AT LENGTH, IDENTIFYING BY NAME, ADDRESS AND
OCCUPATION, WHENEVER POSSIBLE, PEOPLE HE CLAIMED HAD BEEN COMMUNISTS. 
ONE OF THESE WAS BARENBLATT, WHO, ACCORDING TO CROWLEY, HAD BEEN A
COMMUNIST DURING 1947-1950 WHILE A GRADUATE STUDENT AND TEACHING FELLOW
AT THE UNIVERSITY OF MICHIGAN.  THOUGH CROWLEY TESTIFIED IN GREAT
DETAIL ABOUT THE SMALL GROUP OF COMMUNISTS WHO HAD BEEN AT MICHIGAN AT
THAT TIME AND THOUGH THE COMMITTEE WAS VERY SATISFIED WITH HIS
TESTIMONY, IT SOUGHT REPETITION OF MUCH OF THE INFORMATION FROM
BARENBLATT.  BARENBLATT, HOWEVER, REFUSED TO ANSWER THEIR QUESTIONS AND
FILED A LONG STATEMENT OUTLINING HIS CONSTITUTIONAL OBJECTIONS.  HE
ASSERTED THAT THE COMMITTEE WAS VIOLATING THE CONSTITUTION BY ABRIDGING
FREEDOM OF SPEECH, THOUGHT, PRESS, AND ASSOCIATION, AND BY CONDUCTING
LEGISLATIVE TRIALS OF KNOWN OR SUSPECTED COMMUNISTS WHICH TRESPASSED ON
THE EXCLUSIVE POWER OF THE JUDICIARY.  HE ARGUED THAT HOWEVER HE
ANSWERED QUESTIONS RELATING TO MEMBERSHIP IN THE COMMUNIST PARTY HIS
POSITION IN SOCIETY AND HIS ABILITY TO EARN A LIVING WOULD BE SERIOUSLY
JEOPARDIZED; THAT HE WOULD, IN EFFECT, BE SUBJECTED TO A BILL OF
ATTAINDER DESPITE THE TWICE-EXPRESSED CONSTITUTIONAL MANDATE AGAINST
SUCH LEGISLATIVE PUNISHMENTS.  (FN1)  THIS WOULD OCCUR, HE POINTED OUT,
EVEN IF HE DID NO MORE THAN INVOKE THE PROTECTION OF CLEARLY APPLICABLE
PROVISIONS OF THE BILL OF RIGHTS AS A REASON FOR REFUSING TO ANSWER. 

HE REPEATED THESE, AND OTHER OBJECTIONS, IN THE DISTRICT COURT AS A
REASON FOR DISMISSING AN INDICTMENT FOR CONTEMPT OF CONGRESS.  HIS
POSITION, HOWEVER, WAS REJECTED AT THE TRIAL AND IN THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OVER THE STRONG DISSENTS
OF CHIEF JUDGE EDGERTON AND JUDGES BAZELON, FAHY AND WASHINGTON.  THE
COURT TODAY AFFIRMS, AND THEREBY SANCTIONS THE USE OF THE CONTEMPT
POWER TO ENFORCE QUESTIONING BY CONGRESSIONAL COMMITTEES IN THE REALM
OF SPEECH AND ASSOCIATION.  I CANNOT AGREE WITH THIS DISPOSITION OF THE
CASE FOR I BELIEVE THAT THE RESOLUTION ESTABLISHING THE HOUSE UN
AMERICAN ACTIVITIES COMMITTEE AND THE QUESTIONS THAT COMMITTEE ASKED
BARENBLATT VIOLATE THE CONSTITUTION IN SEVERAL RESPECTS.  (1)  RULE XI
CREATING THE COMMITTEE AUTHORIZES SUCH A SWEEPING, UNLIMITED, ALL
INCLUSIVE AND UNDISCRIMINATING COMPULSORY EXAMINATION OF WITNESSES IN
THE FIELD OF SPEECH, PRESS, PETITION AND ASSEMBLY THAT IT VIOLATES THE
PROCEDURAL REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  (2) COMPELLING AN ANSWER TO THE QUESTIONS ASKED BARENBLATT
ABRIDGES FREEDOM OF SPEECH AND ASSOCIATION IN CONTRAVENTION OF THE
FIRST AMENDMENT.  (3) THE COMMITTEE PROCEEDINGS WERE PART OF A
LEGISLATIVE PROGRAM TO STIGMATIZE AND PUNISH BY PUBLIC IDENTIFICATION
AND EXPOSURE ALL WITNESSES CONSIDERED BY THE COMMITTEE TO BE GUILTY OF
COMMUNIST AFFILIATIONS, AS WELL AS ALL WITNESSES WHO REFUSED TO ANSWER
COMMITTEE QUESTIONS ON CONSTITUTIONAL GROUNDS; THE COMMITTEE WAS THUS
IMPROPERLY SEEKING TO TRY, CONVICT, AND PUNISH SUSPECTS, A TASK WHICH
THE CONSTITUTION EXPRESSLY DENIES TO CONGRESS AND GRANTS EXCLUSIVELY TO
THE COURTS, TO BE EXERCISED BY THEM ONLY AFTER INDICTMENT AND IN FULL
COMPLIANCE WITH ALL THE SAFEGUARDS PROVIDED BY THE BILL OF RIGHTS. 

                                  I. 

IT GOES WITHOUT SAYING THAT A LAW TO BE VALID MUST BE CLEAR ENOUGH TO
MAKE ITS COMMANDS UNDERSTANDABLE.  FOR OBVIOUS REASONS, THE STANDARD OF
CERTAINTY REQUIRED IN CRIMINAL STATUTES IS MORE EXACTING THAN IN
NONCRIMINAL STATUTES.  (FN2)  THIS IS SIMPLY BECAUSE IT WOULD BE
UNTHINKABLE TO CONVICT A MAN FOR VIOLATING A LAW HE COULD NOT
UNDERSTAND.  THIS COURT HAS RECOGNIZED THAT THE STRICTER STANDARD IS AS
MUCH REQUIRED IN CRIMINAL CONTEMPT CASES AS IN ALL OTHER CRIMINAL
CASES, (FN3) AND HAS EMPHASIZED THAT THE "VICE OF VAGUENESS" IS
ESPECIALLY PERNICIOUS WHERE LEGISLATIVE POWER OVER AN AREA INVOLVING
SPEECH, PRESS, PETITION AND ASSEMBLY IS INVOLVED.  (FN4)  IN THIS AREA
THE STATEMENT THAT A STATUTE IS VOID IF IT "ATTEMPTS TO COVER SO MUCH
THAT IT EFFECTIVELY COVERS NOTHING," SEE MUSSER V. UTAH, 333 U.S. 95,
97, TAKES ON DOUBLE SIGNIFICANCE.  FOR A STATUTE BROAD ENOUGH TO
SUPPORT INFRINGEMENT OF SPEECH, WRITINGS, THOUGHTS, AND PUBLIC
ASSEMBLIES, AGAINST THE UNEQUIVOCAL COMMAND OF THE FIRST AMENDMENT
NECESSARILY LEAVES ALL PERSONS TO GUESS JUST WHAT THE LAW REALLY MEANS
TO COVER, AND FEAR OF A WRONG GUESS INEVITABLY LEADS PEOPLE TO FOREGO
THE VERY RIGHTS THE CONSTITUTION SOUGHT TO PROTECT ABOVE ALL OTHERS. 
(FN5)  VAGUENESS BECOMES EVEN MORE INTOLERABLE IN THIS AREA IF ONE
ACCEPTS, AS THE COURT TODAY DOES, A BALANCING TEST TO DECIDE IF FIRST
AMENDMENT RIGHTS SHALL BE PROTECTED.  IT IS DIFFICULT AT BEST TO MAKE A
MAN GUESS - AT THE PENALTY OF IMPRISONMENT - WHETHER A COURT WILL
CONSIDER THE STATE'S NEED FOR CERTAIN INFORMATION SUPERIOR TO SOCIETY'S
INTEREST IN UNFETTERED FREEDOM.  IT IS UNCONSCIONABLE TO MAKE HIM
CHOOSE BETWEEN THE RIGHT TO KEEP SILENT AND THE NEED TO SPEAK WHEN THE
STATUTE SUPPOSEDLY ESTABLISHING THE "STATE'S INTEREST" IS TOO VAGUE TO
GIVE HIM GUIDANCE.  CF.  SCULL V. VIRGINIA, 359 U.S. 344. 

MEASURED BY THE FOREGOING STANDARDS, RULE XI CANNOT SUPPORT ANY
CONVICTION FOR REFUSAL TO TESTIFY.   IN SUBSTANCE IT AUTHORIZES THE
COMMITTEE TO COMPEL WITNESSES TO GIVE EVIDENCE ABOUT ALL "UN-AMERICAN
PROPAGANDA," WHETHER INSTIGATED IN THIS COUNTRY OR ABROAD.  (FN6)  THE
WORD "PROPAGANDA" SEEMS TO MEAN ANYTHING THAT PEOPLE SAY, WRITE, THINK
OR ASSOCIATE TOGETHER ABOUT.  THE TERM "UN-AMERICAN" IS EQUALLY VAGUE. 
AS WAS SAID IN WATKINS V. UNITED STATES, 354 U.S. 178, 202, "WHO CAN
DEFINE ITS MEANING  ...  ?  WHAT IS THAT SINGLE, SOLITARY 'PRINCIPLE OF
THE FORM OF GOVERNMENT AS GUARANTEED BY OUR CONSTITUTION'?"  I THINK IT
CLEAR THAT THE BOUNDARIES OF THE COMMITTEE ARE, TO SAY THE LEAST,
"NEBULOUS."  INDEED, "IT WOULD BE DIFFICULT TO IMAGINE A LESS EXPLICIT
AUTHORIZING RESOLUTION."  IBID.    THE COURT - WHILE NOT DENYING THE
VAGUENESS OF RULE XI - NEVERTHELESS DEFENDS ITS APPLICATION HERE
BECAUSE THE QUESTIONS ASKED CONCERNED COMMUNISM, A SUBJECT OF
INVESTIGATION WHICH HAD BEEN REPORTED TO THE HOUSE BY THE COMMITTEE ON
NUMEROUS OCCASIONS.  IF THE ISSUE WERE MERELY WHETHER CONGRESS INTENDED
TO ALLOW AN INVESTIGATION OF COMMUNISM, OR EVEN OF COMMUNISM IN
EDUCATION, IT MAY WELL BE THAT WE COULD HOLD THE DATA CITED BY THE
COURT SUFFICIENT TO SUPPORT A FINDING OF INTENT.  BUT THAT IS EXPRESSLY
NOT THE ISSUE.  ON THE COURT'S OWN TEST, THE ISSUE IS WHETHER
BARENBLATT CAN KNOW WITH SUFFICIENT CERTAINTY, AT THE TIME OF HIS
INTERROGATION, THAT THERE IS SO COMPELLING A NEED FOR HIS REPLIES THAT
INFRINGEMENT OF HIS RIGHTS OF FREE ASSOCIATION IS JUSTIFIED.  THE
RECORD DOES NOT DISCLOSE WHERE BARENBLATT CAN FIND WHAT THAT NEED IS.
THERE IS CERTAINLY NO CLEAR CONGRESSIONAL STATEMENT OF IT IN RULE XI.
PERHAPS IF BARENBLATT HAD HAD TIME TO READ ALL THE REPORTS OF THE
COMMITTEE TO THE HOUSE, AND IN ADDITION HAD EXAMINED THE APPROPRIATIONS
MADE TO THE COMMITTEE HE, LIKE THE COURT, COULD HAVE DISCERNED AN
INTENT BY CONGRESS TO ALLOW AN INVESTIGATION OF COMMUNISM IN
EDUCATION.  EVEN SO HE WOULD BE HARD PUT TO DECIDE WHAT THE NEED FOR
THIS INVESTIGATION IS SINCE CONGRESS EXPRESSED IT NEITHER WHEN IT
ENACTED RULE XI NOR WHEN IT ACQUIESCED IN THE COMMITTEE'S ASSERTIONS OF
POWER.  YET IT IS KNOWLEDGE OF THIS NEED - WHAT IS WANTED FROM HIM AND
WHY IT IT WANTED - THAT A WITNESS MUST HAVE IF HE IS TO BE IN A
POSITION TO COMPLY WITH THE COURT'S RULE THAT HE BALANCE INDIVIDUAL
RIGHTS AGAINST THE REQUIREMENTS OF THE STATE.  I CANNOT SEE HOW THAT
KNOWLEDGE CAN EXIST UNDER RULE XI. 

BUT EVEN IF BARENBLATT COULD EVALUATE THE IMPORTANCE TO THE
GOVERNMENT OF THE INFORMATION SOUGHT, RULE XI WOULD STILL BE TOO BROAD
TO SUPPORT HIS CONVICTION.  FOR WE ARE DEALING HERE WITH GOVERNMENTAL
PROCEDURES WHICH THE COURT ITSELF ADMITS REACH TO THE VERY FRINGES OF
CONGRESSIONAL POWER.  IN SUCH CASES MORE IS REQUIRED OF LEGISLATURES
THAN A VAGUE DELEGATION TO BE FILLED IN LATER BY MUTE ACQUIESCENCE. 
(FN7)  IF CONGRESS WANTS IDEAS INVESTIGATED, IF IT EVEN WANTS THEM
INVESTIGATED IN THE FIELD OF EDUCATION, IT MUST BE PREPARED TO SAY SO
EXPRESSLY AND UNEQUIVOCALLY.  AND IT IS NOT ENOUGH THAT A COURT THROUGH
EXHAUSTIVE RESEARCH CAN ESTABLISH, EVEN CONCLUSIVELY, THAT CONGRESS
WISHED TO ALLOW THE INVESTIGATION.  I CAN FIND NO SUCH UNEQUIVOCAL
STATEMENT HERE. 

FOR ALL THESE REASONS, I WOULD HOLD THAT RULE XI IS TOO BROAD TO BE
MEANINGFUL AND CANNOT SUPPORT PETITIONER'S CONVICTION.  (FN8)

                                  II. 

THE FIRST AMENDMENT SAYS IN NO EQUIVOCAL LANGUAGE THAT CONGRESS SHALL
PASS NO LAW ABRIDGING FREEDOM OF SPEECH, PRESS, ASSEMBLY OR PETITION. 
(FN9)  THE ACTIVITIES OF THIS COMMITTEE, AUTHORIZED BY CONGRESS, DO
PRECISELY THAT, THROUGH EXPOSURE, OBLOQUY AND PUBLIC SCORN.  SEE
WATKINS V. UNITED STATES, 354 U.S. 178, 197-198.  THE COURT DOES NOT
REALLY DENY THIS FACT BUT RELIES ON A COMBINATION OF THREE REASONS FOR
PERMITTING THE INFRINGEMENT:  (A) THE NOTION THAT DESPITE THE FIRST
AMENDMENT'S COMMAND CONGRESS CAN ABRIDGE SPEECH AND ASSOCIATION IF THIS
COURT DECIDES THAT THE GOVERNMENTAL INTEREST IN ABRIDGING SPEECH IS
GREATER THAN AN INDIVIDUAL'S INTEREST IN EXERCISING THAT FREEDOM, (B)
THE GOVERNMENT'S RIGHT TO "PRESERVE ITSELF," (C) THE FACT THAT THE
COMMITTEE IS ONLY AFTER COMMUNISTS OR SUSPECTED COMMUNISTS IN THIS
INVESTIGATION. 

(A)  I DO NOT AGREE THAT LAWS DIRECTLY ABRIDGING FIRST AMENDMENT
FREEDOMS CAN BE JUSTIFIED BY A CONGRESSIONAL OR JUDICIAL BALANCING
PROCESS.  THERE ARE, OF COURSE, CASES SUGGESTING THAT A LAW WHICH
PRIMARILY REGULATES CONDUCT BUT WHICH MIGHT ALSO INDIRECTLY AFFECT
SPEECH CAN BE UPHELD IF THE EFFECT ON SPEECH IS MINOR IN RELATION TO
THE NEED FOR CONTROL OF THE CONDUCT.  WITH THESE CASES I AGREE. 
TYPICAL OF THEM ARE CANTWELL V. CONNECTICUT, 310 U.S. 296, AND
SCHNEIDER V. IRVINGTON, 308 U.S. 147.  BOTH OF THESE INVOLVED THE RIGHT
OF A CITY TO CONTROL ITS STREETS.  IN CANTWELL, A MAN HAD BEEN
CONVICTED OF BREACH OF THE PEACE FOR PLAYING A PHONOGRAPH ON THE
STREET.  HE DEFENDED ON THE GROUND THAT HE WAS DISSEMINATING RELIGIOUS
VIEWS AND COULD NOT, THEREFORE, BE STOPPED.  WE UPHELD HIS DEFENSE, BUT
IN SO DOING WE POINTED OUT THAT THE CITY DID HAVE SUBSTANTIAL POWER
OVER CONDUCT ON THE STREETS EVEN WHERE THIS POWER MIGHT TO SOME EXTENT
AFFECT SPEECH.  A STATE, WE SAID, MIGHT "BY GENERAL AND NON
DISCRIMINATORY LEGISLATION REGULATE THE TIMES, THE PLACES, AND THE
MANNER OF SOLICITING UPON ITS STREETS AND HOLDING MEETINGS THEREON." 
310 U.S., AT 304.  BUT EVEN SUCH LAWS GOVERNING CONDUCT, WE EMPHASIZED,
MUST BE TESTED, THOUGH ONLY BY A BALANCING PROCESS, IF THEY INDIRECTLY
AFFECT IDEAS.  ON ONE SIDE OF THE BALANCE, WE POINTED OUT, IS THE
INTEREST OF THE UNITED STATES IN SEEING THAT ITS FUNDAMENTAL LAW
PROTECTING FREEDOM OF COMMUNICATION IS NOT ABRIDGED; ON THE OTHER THE
OBVIOUS INTEREST OF THE STATE TO REGULATE CONDUCT WITHIN ITS
BOUNDARIES.  IN CANTWELL WE HELD THAT THE NEED TO CONTROL THE STREETS
COULD NOT JUSTIFY THE RESTRICTION MADE ON SPEECH.  WE STRESSED THE FACT
THAT WHERE A MAN HAD A RIGHT TO BE ON A STREET, "HE HAD A RIGHT
PEACEFULLY TO IMPART HIS VIEWS TO OTHERS."  310 U.S., AT 308.  SIMILAR
VIEWS WERE EXPRESSED IN SCHNEIDER, WHICH CONCERNED ORDINANCES
PROHIBITING THE DISTRIBUTION OF HANDBILLS TO PREVENT LITTERING.  WE
FORBADE APPLICATION OF SUCH ORDINANCES WHEN THEY AFFECTED LITERATURE
DESIGNED TO SPREAD IDEAS.  THERE WERE OTHER WAYS, WE SAID, TO PROTECT
THE CITY FROM LITTERING WHICH WOULD NOT SACRIFICE THE RIGHT OF THE
PEOPLE TO BE INFORMED.  IN SO HOLDING, WE, OF COURSE, FOUND IT
NECESSARY TO "WEIGH THE CIRCUMSTANCES."  308 U.S., AT 161.  BUT WE DID
NOT IN SCHNEIDER, ANY MORE THAN IN CANTWELL, EVEN REMOTELY SUGGEST THAT
A LAW DIRECTLY AIMED AT CURTAILING SPEECH AND POLITICAL PERSUASION
COULD BE SAVED THROUGH A BALANCING PROCESS.  NEITHER THESE CASES, NOR
ANY OTHERS, CAN BE READ AS ALLOWING LEGISLATIVE BODIES TO PASS LAWS
ABRIDGING FREEDOM OF SPEECH, PRESS AND ASSOCIATION MERELY BECAUSE OF
HOSTILITY TO VIEWS PEACEFULLY EXPRESSED IN A PLACE WHERE THE SPEAKER
HAD A RIGHT TO BE.  RULE XI, ON ITS FACE AND AS HERE APPLIED, SINCE IT
ATTEMPTS INQUIRY INTO BELIEFS, NOT ACTION - IDEAS AND ASSOCIATIONS, NOT
CONDUCT - DOES JUST THAT.  (FN10) 

TO APPLY THE COURT'S BALANCING TEST UNDER SUCH CIRCUMSTANCES IS TO
READ THE FIRST AMENDMENT TO SAY "CONGRESS SHALL PASS NO LAW ABRIDGING
FREEDOM OF SPEECH, PRESS, ASSEMBLY AND PETITION, UNLESS CONGRESS AND
THE SUPREME COURT REACH THE JOINT CONCLUSION THAT ON BALANCE THE
INTEREST OF THE GOVERNMENT IN STIFLING THESE FREEDOMS IS GREATER THAN
THE INTEREST OF THE PEOPLE IN HAVING THEM EXERCISED."  THIS IS CLOSELY
AKIN TO THE NOTION THAT NEITHER THE FIRST AMENDMENT NOR ANY OTHER
PROVISION OF THE BILL OF RIGHTS SHOULD BE ENFORCED UNLESS THE COURT
BELIEVES IT IS REASONABLE TO DO SO.  NOT ONLY DOES THIS VIOLATE THE
GENIUS OF OUR WRITTEN CONSTITUTION, BUT IT RUNS EXPRESSLY COUNTER TO
THE INJUNCTION TO COURT AND CONGRESS MADE BY MADISON WHEN HE INTRODUCED
THE BILL OF RIGHTS.  "IF THEY (THE FIRST TEN AMENDMENTS) ARE
INCORPORATED INTO THE CONSTITUTION, INDEPENDENT TRIBUNALS OF JUSTICE
WILL CONSIDER THEMSELVES IN A PECULIAR MANNER THE GUARDIANS OF THOSE
RIGHTS; THEY WILL BE AN IMPENETRABLE BULWARK AGAINST EVERY ASSUMPTION
OF POWER IN THE LEGISLATIVE OR EXECUTIVE; THEY WILL BE NATURALLY LED TO
RESIST EVERY ENCROACHMENT UPON RIGHTS EXPRESSLY STIPULATED FOR IN THE
CONSTITUTION BY THE DECLARATION OF RIGHTS."  (FN11)  UNLESS WE RETURN
TO THIS VIEW OF OUR JUDICIAL FUNCTION, UNLESS WE ONCE AGAIN ACCEPT THE
NOTION THAT THE BILL OF RIGHTS MEANS WHAT IT SAYS AND THAT THIS COURT
MUST ENFORCE THAT MEANING, I AM OF THE OPINION THAT OUR GREAT CHARTER
OF LIBERTY WILL BE MORE HONORED IN THE BREACH THAN IN THE OBSERVANCE. 

BUT EVEN ASSUMING WHAT I CANNOT ASSUME, THAT SOME BALANCING IS PROPER
IN THIS CASE, I FEEL THAT THE COURT AFTER STATING THE TEST IGNORES IT
COMPLETELY.  AT MOST IT BALANCES THE RIGHT OF THE GOVERNMENT TO
PRESERVE ITSELF, AGAINST BARENBLATT'S RIGHT TO REFRAIN FROM REVEALING
COMMUNIST AFFILIATIONS.  SUCH A BALANCE, HOWEVER, MISTAKES THE FACTORS
TO BE WEIGHED.  IN THE FIRST PLACE, IT COMPLETELY LEAVES OUT THE REAL
INTEREST IN BARENBLATT'S SILENCE, THE INTEREST OF THE PEOPLE AS A WHOLE
IN BEING ABLE TO JOIN ORGANIZATIONS, ADVOCATE CAUSES AND MAKE POLITICAL
"MISTAKES" WITHOUT LATER BEING SUBJECTED TO GOVERNMENTAL PENALTIES FOR
HAVING DARED TO THINK FOR THEMSELVES.  IT IS THIS RIGHT, THE RIGHT TO
ERR POLITICALLY, WHICH KEEPS US STRONG AS A NATION.  FOR NO NUMBER OF
LAWS AGAINST COMMUNISM CAN HAVE AS MUCH EFFECT AS THE PERSONAL
CONVICTION WHICH COMES FROM HAVING HEARD ITS ARGUMENTS AND REJECTED
THEM, OR FROM HAVING ONCE ACCEPTED ITS TENETS AND LATER RECOGNIZED
THEIR WORTHLESSNESS.  INSTEAD, THE OBLOQUY WHICH RESULTS FROM
INVESTIGATIONS SUCH AS THIS NOT ONLY STIFLES "MISTAKES" BUT PREVENTS
ALL BUT THE MOST COURAGEOUS FROM HAZARDING ANY VIEWS WHICH MIGHT AT
SOME LATER TIME BECOME DISFAVORED.  THIS RESULT, WHOSE IMPORTANCE
CANNOT BE OVERESTIMATED, IS DOUBLY CRUCIAL WHEN IT AFFECTS THE
UNIVERSITIES, ON WHICH WE MUST LARGELY RELY FOR THE EXPERIMENTATION AND
DEVELOPMENT OF NEW IDEAS ESSENTIAL TO OUR COUNTRY'S WELFARE.  IT IS
THESE INTERESTS OF SOCIETY, RATHER THAN BARENBLATT'S OWN RIGHT TO
SILENCE, WHICH I THINK THE COURT SHOULD PUT ON THE BALANCE AGAINST THE
DEMANDS OF THE GOVERNMENT, IF ANY BALANCING PROCESS IS TO BE
TOLERATED.  INSTEAD THEY ARE NOT MENTIONED, WHILE ON THE OTHER SIDE THE
DEMANDS OF THE GOVERNMENT ARE VASTLY OVERSTATED AND CALLED "SELF
PRESERVATION."  IT IS ADMITTED THAT THIS COMMITTEE CAN ONLY SEEK
INFORMATION FOR THE PURPOSE OF SUGGESTING LAWS, AND THAT CONGRESS'
POWER TO MAKE LAWS IN THE REALM OF SPEECH AND ASSOCIATION IS QUITE
LIMITED, EVEN ON THE COURT'S TEST.  ITS INTEREST IN MAKING SUCH LAWS IN
THE FIELD OF EDUCATION, PRIMARILY A STATE FUNCTION, IS CLEARLY NARROWER
STILL.  YET THE COURT STYLES THIS ATTENUATED INTEREST SELF-PRESERVATION
AND ALLOWS IT TO OVERCOME THE NEED OUR COUNTRY HAS TO LET US ALL THINK,
SPEAK, AND ASSOCIATE POLITICALLY AS WE LIKE AND WITHOUT FEAR OF
REPRISAL.  SUCH A RESULT REDUCES "BALANCING" TO A MERE PLAY ON WORDS
AND IS COMPLETELY INCONSISTENT WITH THE RULES THIS COURT HAS PREVIOUSLY
GIVEN FOR APPLYING A "BALANCING TEST," WHERE IT IS PROPER:  "THE COURTS
SHOULD BE ASTUTE TO EXAMINE THE EFFECT OF THE CHALLENGED LEGISLATION. 
MERE LEGISLATIVE PREFERENCES OR BELIEFS  ...  MAY WELL SUPPORT
REGULATION DIRECTED AT OTHER PERSONAL ACTIVITIES, BUT BE INSUFFICIENT
TO JUSTIFY SUCH AS DIMINISHES THE EXERCISE OF RIGHTS SO VITAL TO THE
MAINTENANCE OF DEMOCRATIC INSTITUTIONS."  SCHNEIDER V. IRVINGTON, 308
U.S. 147, 161. 

(B)  MOREOVER, I CANNOT AGREE WITH THE COURT'S NOTION THAT FIRST
AMENDMENT FREEDOMS MUST BE ABRIDGED IN ORDER TO "PRESERVE" OUR
COUNTRY.  THAT NOTION RESTS ON THE UNARTICULATED PREMISE THAT THIS
NATION'S SECURITY HANGS UPON ITS POWER TO PUNISH PEOPLE BECAUSE OF WHAT
THEY THINK, SPEAK OR WRITE ABOUT, OR BECAUSE OF THOSE WITH WHOM THEY
ASSOCIATE FOR POLITICAL PURPOSES.  THE GOVERNMENT, IN ITS BRIEF,
VIRTUALLY ADMITS THIS POSITION WHEN IT SPEAKS OF THE "COMMUNICATION OF
UNLAWFUL IDEAS."  I CHALLENGE THIS PREMISE, AND DENY THAT IDEAS CAN BE
PROSCRIBED UNDER OUR CONSTITUTION.  I AGREE THAT DESPOTIC GOVERNMENTS
CANNOT EXIST WITHOUT STIFLING THE VOICE OF OPPOSITION TO THEIR
OPPRESIVE PRACTICES.  THE FIRST AMENDMENT MEANS TO ME, HOWEVER, THAT
THE ONLY CONSTITUTIONAL WAY OUR GOVERNMENT CAN PRESERVE ITSELF IS TO
LEAVE ITS PEOPLE THE FULLEST POSSIBLE FREEDOM TO PRAISE, CRITICIZE OR
DISCUSS, AS THEY SEE FIT, ALL GOVERNMENTAL POLICIES AND TO SUGGEST, IF
THEY DESIRE, THAT EVEN ITS MOST FUNDAMENTAL POSTULATES ARE BAD AND
SHOULD BE CHANGED; "THEREIN LIES THE SECURITY OF THE REPUBLIC, THE VERY
FOUNDATION OF CONSTITUTIONAL GOVERNMENT."  (FN12)  ON THAT PREMISE THIS
LAND WAS CREATED, AND ON THAT PREMISE IT HAS GROWN TO GREATNESS.  OUR
CONSTITUTION ASSUMES THAT THE COMMON SENSE OF THE PEOPLE AND THEIR
ATTACHMENT TO OUR COUNTRY WILL ENABLE THEM, AFTER FREE DISCUSSION, TO
WITHSTAND IDEAS THAT ARE WRONG.  TO SAY THAT OUR PATRIOTISM MUST BE
PROTECTED AGAINST FALSE IDEAS BY MEANS OTHER THAN THESE IS, I THINK, TO
MAKE A BASELESS CHARGE.  UNLESS WE CAN RELY ON THESE QUALITIES - IF, IN
SHORT, WE BEGIN TO PUNISH SPEECH - WE CANNOT HONESTLY PROCLAIM
OURSELVES TO BE A FREE NATION AND WE HAVE LOST WHAT THE FOUNDERS OF
THIS LAND RISKED THEIR LIVES AND THEIR SACRED HONOR TO DEFEND. 

(C)  THE COURT IMPLIES, HOWEVER, THAT THE ORDINARY RULES AND
REQUIREMENTS OF THE CONSTITUTION DO NOT APPLY BECAUSE THE COMMITTEE IS
MERELY AFTER COMMUNISTS AND THEY DO NOT CONSTITUTE A POLITICAL PARTY
BUT ONLY A CRIMINAL GANG.  "THE LONG AND WIDELY ACCEPTED VIEW," THE
COURT SAYS, IS "THAT THE TENETS OF THE COMMUNIST PARTY INCLUDE THE
ULTIMATE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE."  (FN13)  THIS JUSTIFIES THE INVESTIGATION UNDERTAKEN.  BY
ACCEPTING THIS CHARGE AND ALLOWING IT TO SUPPORT TREATMENT OF THE
COMMUNIST PARTY AND ITS MEMBERS WHICH WOULD VIOLATE THE CONSTITUTION IF
APPLIED TO OTHER GROUPS, THE COURT, IN EFFECT, DECLARES THAT PARTY
OUTLAWED.  IT HAS BEEN ONLY A FEW YEARS SINCE THERE WAS PRACTICALLY
UNANIMOUS FEELING THROUGHOUT THE COUNTRY AND IN OUR COURTS THAT THIS
COULD NOT BE DONE IN OUR FREE LAND.  OF COURSE IT HAS ALWAYS BEEN
RECOGNIZED THAT MEMBERS OF THE PARTY WHO, EITHER INDIVIDUALLY OR IN
COMBINATION, COMMIT ACTS IN VIOLATION OF VALID LAWS CAN BE PROSECUTED. 
BUT THE PARTY AS A WHOLE AND INNOCENT MEMBERS OF IT COULD NOT BE
ATTAINTED MERELY BECAUSE IT HAD SOME ILLEGAL AIMS AND BECAUSE SOME OF
ITS MEMBERS WERE LAWBREAKERS.  THUS IN DE JONGE V. OREGON, 299 U.S.
353, 357 (1937), ON STIPULATED FACTS THAT THE COMMUNIST PARTY ADVOCATED
CRIMINAL SYNDICALISM - "CRIME, PHYSICAL VIOLENCE, SABOTAGE OR ANY
UNLAWFUL ACTS OR METHODS AS A MEANS OF ACCOMPLISHING OR EFFECTING
INDUSTRIAL OR POLITICAL CHANGE OR REVOLUTION" - A UNANIMOUS COURT,
SPEAKING THROUGH CHIEF JUSTICE HUGHES, HELD THAT A COMMUNIST ADDRESSING
A COMMUNIST RALLY COULD BE FOUND GUILTY OF NO OFFENSE SO LONG AS NO
VIOLENCE OR CRIME WAS URGED AT THE MEETING.  THE COURT ABSOLUTELY
REFUSED TO CONCEDE THAT EITHER DE JONGE OR THE COMMUNIST PARTY
FORFEITED THE PROTECTIONS OF THE FIRST AND FOURTEENTH AMENDMENTS
BECAUSE ONE OF THE PARTY'S PURPOSES WAS TO EFFECT A VIOLENT CHANGE OF
GOVERNMENT.  SEE ALSO HERNDON V. LOWRY, 301 U.S. 242. 

LATER, IN 1948, WHEN VARIOUS BILLS WERE PROPOSED IN THE HOUSE AND
SENATE TO HANDICAP OR OUTLAW THE COMMUNIST PARTY, LEADERS OF THE BAR
WHO HAD BEEN ASKED TO GIVE THEIR VIEWS ROSE UP TO CONTEST THE
CONSTITUTIONALITY OF THE MEASURES.  THE LATE CHARLES EVANS HUGHES, JR.,
QUESTIONED THE VALIDITY UNDER BOTH THE FIRST AND FIFTH AMENDMENTS OF
ONE OF THESE BILLS, WHICH IN EFFECT OUTLAWED THE PARTY.   THE LATE JOHN
W. DAVIS ATTACKED IT AS LACKING AN ASCERTAINABLE STANDARD OF GUILT
UNDER MANY OF THIS COURT'S CASES.  (FN14)  AND THE ATTORNEY GENERAL OF
THE UNITED STATES NOT ONLY INDICATED THAT SUCH A MEASURE WOULD BE
UNCONSTITUTIONAL BUT DECLARED IT TO BE UNWISE EVEN IF VALID.  HE
BUTTRESSED HIS POSITION BY CITING A STATEMENT BY J. EDGAR HOOVER,
DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, AND THE DECLARATION OF
THIS COURT IN WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S.
624, 642, THAT: 

"IF THERE IS ANY FIXED STAR IN OUR CONSTITUTIONAL CONSTELLATION, IT
IS THAT NO OFFICIAL, HIGH OR PETTY, CAN PRESCRIBE WHAT SHALL BE
ORTHODOX IN POLITICS, NATIONALISM, RELIGION, OR OTHER MATTERS OF
OPINION OR FORCE CITIZENS TO CONFESS BY WORD OR ACT THEIR FAITH
THEREIN."  (FN15) 

EVEN THE PROPONENT OF THE BILL DISCLAIMED ANY AIM TO OUTLAW THE
COMMUNIST PARTY AND POINTED OUT THE "DISADVANTAGES" OF SUCH A MOVE BY
STATING THAT "THE COMMUNIST PARTY WAS ILLEGAL AND OUTLAWED IN RUSSIA
WHEN IT TOOK OVER CONTROL OF THE SOVIET UNION."  (FN16)  AGAIN, WHEN
THE ATTORNEY GENERAL TESTIFIED ON A PROPOSAL TO BAR THE COMMUNIST PARTY
FROM THE BALLOT HE SAID, "AN ORGANIZED GROUP, WHETHER YOU CALL IT
POLITICAL OR NOT, COULD HARDLY BE BARRED FROM THE BALLOT WITHOUT
JEOPARDIZING THE CONSTITUTIONAL GUARANTEES OF ALL OTHER POLITICAL
GROUPS AND PARTIES."  (FN17) 

ALL THESE STATEMENTS INDICATE QUITE CLEARLY THAT NO MATTER HOW OFTEN
OR HOW QUICKLY WE REPEAT THE CLAIM THAT THE COMMUNIST PARTY IS NOT A
POLITICAL PARTY, WE CANNOT OUTLAW IT, AS A GROUP, WITHOUT ENDANGERING
THE LIBERTY OF ALL OF US.  THE REASON IS NOT HARD TO FIND, FOR MIXED
AMONG THOSE AIMS OF COMMUNISM WHICH ARE ILLEGAL ARE PERFECTLY NORMAL
POLITICAL AND SOCIAL GOALS.  AND MUDDLED WITH ITS REVOLUTIONARY TENETS
IS A DRIVE TO ACHIEVE POWER THROUGH THE BALLOT, IF IT CAN BE DONE. 
THESE THINGS NECESSARILY MAKE IT A POLITICAL PARTY WHATEVER OTHER,
ILLEGAL, AIMS IT MAY HAVE.  CF. GERENDE V. BOARD OF SUPERVISORS, 341
U.S. 56.  SIGNIFICANTLY UNTIL RECENTLY THE COMMUNIST PARTY WAS ON THE
BALLOT IN MANY STATES.  WHEN THAT WAS SO, MANY COMMUNISTS UNDOUBTEDLY
HOPED TO ACCOMPLISH ITS LAWFUL GOALS THROUGH SUPPORT OF COMMUNIST
CANDIDATES.  EVEN NOW SOME SUCH MAY STILL REMAIN.  (FN18)  TO ATTRIBUTE
TO THEM, AND TO THOSE WHO HAVE LEFT THE PARTY, THE TAINT OF THE GROUP
IS TO IGNORE BOTH OUR TRADITIONS THAT GUILT LIKE BELIEF IS "PERSONAL
AND NOT A MATTER OF MERE ASSOCIATION" AND THE OBVIOUS FACT THAT "MEN
ADHERING TO A POLITICAL PARTY OR OTHER ORGANIZATION NOTORIOUSLY DO NOT
SUBSCRIBE UNQUALIFIEDLY TO ALL OF ITS PLATFORMS OR ASSERTED
PRINCIPLES."  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 136.  SEE
ALSO DENNIS V. UNITED STATES, 341 U.S. 494, 579, 581 (DISSENTING
OPINIONS). 

THE FACT IS THAT ONCE WE ALLOW ANY GROUP WHICH HAS POLITICAL AIMS OR
IDEAS TO BE DRIVEN FROM THE BALLOT AND FROM THE BATTLE FOR MEN'S MINDS
BECAUSE SOME OF ITS MEMBERS ARE BAD AND SOME OF ITS TENETS ARE ILLEGAL,
NO GROUP IS SAFE.  TODAY WE DEAL WITH COMMUNISTS OR SUSPECTED
COMMUNISTS.  IN 1920, INSTEAD, THE NEW YORK ASSEMBLY SUSPENDED DULY
ELECTED LEGISLATORS ON THE GROUND THAT, BEING SOCIALISTS, THEY WERE
DISLOYAL TO THE COUNTRY'S PRINCIPLES.  (FN19)  IN THE 1830'S THE MASONS
WERE HUNTED AS OUTLAWS AND SUBVERSIVES, AND ABOLITIONISTS WERE
CONSIDERED REVOLUTIONARIES OF THE MOST DANGEROUS KIND IN BOTH NORTH AND
SOUTH.  (FN20)  EARLIER STILL, AT THE TIME OF THE UNIVERSALLY
UNLAMENTED ALIEN AND SEDITION LAWS, THOMAS JEFFERSON'S PARTY WAS
ATTACKED AND ITS MEMBERS WERE DERISIVELY CALLED "JACOBINS."  FISHER
AMES DESCRIBED THE PARTY AS A "FRENCH FACTION" GUILTY OF "SUBVERSION"
AND "OFFICERED, REGIMENTED AND FORMED TO SUBORDINATION."  ITS MEMBERS,
HE CLAIMED, INTENDED TO "TAKE ARMS AGAINST THE LAWS AS SOON AS THEY
DARE."  (FN21)  HISTORY SHOULD TEACH US THEN, THAT IN TIMES OF HIGH
EMOTIONAL EXCITEMENT MINORITY PARTIES AND GROUPS WHICH ADVOCATE
EXTREMELY UNPOPULAR SOCIAL OR GOVERNMENTAL INNOVATIONS WILL ALWAYS BE
TYPED AS CRIMINAL GANGS AND ATTEMPTS WILL ALWAYS BE MADE TO DRIVE THEM
OUT.  (FN22)  IT WAS KNOWLEDGE OF THIS FACT, AND OF ITS GREAT DANGERS,
THAT CAUSED THE FOUNDERS OF OUR LAND TO ENACT THE FIRST AMENDMENT AS A
GUARANTEE THAT NEITHER CONGRESS NOR THE PEOPLE WOULD DO ANYTHING TO
HINDER OR DESTROY THE CAPACITY OF INDIVIDUALS AND GROUPS TO SEEK
CONVERTS AND VOTES FOR ANY CAUSE, HOWEVER, RADICAL OR UNPALATABLE THEIR
PRINCIPLES MIGHT SEEM UNDER THE ACCEPTED NOTIONS OF THE TIME.  WHATEVER
THE STATES WERE LEFT FREE TO DO, THE FIRST AMENDMENT SOUGHT TO LEAVE
CONGRESS DEVOID OF ANY KIND OR QUALITY OF POWER TO DIRECT ANY TYPE OF
NATIONAL LAWS AGAINST THE FREEDOM OF INDIVIDUALS TO THINK WHAT THEY
PLEASE, ADVOCATE WHATEVER POLICY THEY CHOOSE, AND JOIN WITH OTHERS TO
BRING ABOUT THE SOCIAL, RELIGIOUS, POLITICAL AND GOVERNMENTAL CHANGES
WHICH SEEM BEST TO THEM.  (FN23)  TODAY'S HOLDING, IN MY JUDGMENT,
MARKS ANOTHER MAJOR STEP IN THE PROGRESSIVELY INCREASING RETREAT FROM
THE SAFEGUARDS OF THE FIRST AMENDMENT. 

IT IS, SADLY, NO ANSWER TO SAY THAT THIS COURT WILL NOT ALLOW THE
TREND TO OVERWHELM US; THAT TODAY'S HOLDING WILL BE STRICTLY CONFINED
TO "COMMUNISTS," AS THE COURT'S LANGUAGE IMPLIES.  THIS DECISION CAN NO
MORE BE CONTAINED THAN COULD THE HOLDING IN AMERICAN COMMUNICATIONS
ASSN. V. DOUDS, 339 U.S. 382.  IN THAT CASE THE COURT SUSTAINED AS AN
EXERCISE OF THE COMMERCE POWER AN ACT WHICH REQUIRED LABOR UNION
OFFICIALS TO TAKE AN OATH THAT THEY WERE NOT MEMBERS OF THE COMMUNIST
PARTY.  THE COURT REJECTED THE IDEA THAT THE DOUDS HOLDING MEANT THAT
THE PARTY AND ALL ITS MEMBERS COULD BE ATTAINTED BECAUSE OF THEIR
COMMUNIST BELIEFS.  IT WENT TO GREAT LENGTHS TO EXPLAIN THAT THE ACT
HELD VALID "TOUCHES ONLY A RELATIVE HANDFUL OF PERSONS, LEAVING THE
GREAT MAJORITY OF PERSONS OF THE IDENTIFIED AFFILIATIONS AND BELIEFS
COMPLETELY FREE FROM RESTRAINT."  "WHILE THIS COURT SITS," THE COURT
PROCLAIMED, NO WHOLESALE PROSCRIPTION OF COMMUNISTS OR THEIR PARTY CAN
OCCUR.  339 U.S., AT 404, 410.  I DISSENTED AND SAID: 

"UNDER SUCH CIRCUMSTANCES, RESTRICTIONS IMPOSED ON PROSCRIBED GROUPS
ARE SELDOM STATIC, EVEN THOUGH THE RATE OF EXPANSION MAY NOT MOVE IN
GEOMETRIC PROGRESSION FROM DISCRIMINATION TO ARM-BAND TO GHETTO AND
WORSE.  THUS I CANNOT REGARD THE COURT'S HOLDING AS ONE WHICH MERELY
BARS COMMUNISTS FROM HOLDING UNION OFFICE AND NOTHING MORE.  FOR ITS
REASONING WOULD APPLY JUST AS FORCIBLY TO STATUTES BARRING COMMUNISTS
AND THEIR RESPECTIVE SYMPATHIZERS FROM ELECTION TO POLITICAL OFFICE,
MERE MEMBERSHIP IN UNIONS, AND IN FACT FROM GETTING OR HOLDING ANY JOB
WHEREBY THEY COULD EARN A LIVING."  339 U.S., AT 449. 

MY PREDICTION WAS ALL TOO ACCURATE.  TODAY, COMMUNISTS OR SUSPECTED
COMMUNISTS HAVE BEEN DENIED AN OPPORTUNITY TO WORK AS GOVERNMENT
EMPLOYEES, LAWYERS, DOCTORS, TEACHERS, PHARMACISTS, VETERINARIANS,
SUBWAY CONDUCTORS, INDUSTRIAL WORKERS AND IN JUST ABOUT ANY OTHER JOB. 
SEE SPEISER V. RANDALL, 357 U.S. 513, 531 (CONCURRING OPINION).  CF.
BARSKY V. BOARD OF REGENTS, 347 U.S. 442, 456, 467, 472 (DISSENTING
OPINIONS).  IN TODAY'S HOLDING THEY ARE SINGLED OUT AND, AS A CLASS,
ARE SUBJECTED TO INQUISITIONS WHICH THE COURT SUGGESTS WOULD BE
UNCONSTITUTIONAL BUT FOR THE FACT OF "COMMUNISM."  NEVERTHELESS, THIS
COURT STILL SITS]  (FN24)

  III. 

FINALLY, I THINK BARENBLATT'S CONVICTION VIOLATES THE CONSTITUTION
BECAUSE THE CHIEF AIM, PURPOSE AND PRACTICE OF THE HOUSE UN-AMERICAN
ACTIVITIES COMMITTEE, AS DISCLOSED BY ITS MANY REPORTS, IS TO TRY
WITNESSES AND PUNISH THEM BECAUSE THEY REFUSE TO ADMIT OR DENY
COMMUNIST AFFILIATIONS.  THE PUNISHMENT IMPOSED IS GENERALLY PUNISHMENT
BY HUMILIATION AND PUBLIC SHAME.  THERE IS NOTHING STRANGE OR NOVEL
ABOUT THIS KIND OF PUNISHMENT.  IT IS IN FACT ONE OF THE OLDEST FORMS
OF GOVERNMENTAL PUNISHMENT KNOWN TO MANKIND; BRANDING, THE PILLORY,
OSTRACISM AND SUBJECTION TO PUBLIC HATRED BEING BUT A FEW EXAMPLES OF
IT.  (FN25)  NOR IS THERE ANYTHING STRANGE ABOUT A COURT'S REVIEWING
THE POWER OF A CONGRESSIONAL COMMITTEE TO INFLICT PUNISHMENT.  IN 1880
THIS COURT NULLIFIED THE ACTION OF THE HOUSE OF REPRESENTATIVES IN
SENTENCING A WITNESS TO JAIL FOR FAILURE TO ANSWER QUESTIONS OF A
CONGRESSIONAL COMMITTEE.  KILBOURN V. THOMPSON, 103 U.S. 168.  THE
COURT HELD THAT THE COMMITTEE IN ITS INVESTIGATION OF THE JAY COOKE
BANKRUPTCY WAS SEEKING TO EXERCISE JUDICIAL POWER, AND THIS, IT
EMPHATICALLY SAID, NO COMMITTEE COULD DO.  IT SEEMS TO ME THAT THE
PROOF THAT THE UN-AMERICAN ACTIVITIES COMMITTEE IS HERE UNDERTAKING A
PURELY JUDICIAL FUNCTION IS OVERWHELMING, FAR STRONGER, IN FACT, THAN
IT WAS IN THE JAY COOKE INVESTIGATION WHICH, MOREOVER, CONCERNED ONLY
BUSINESS TRANSACTIONS, NOT FREEDOM OF ASSOCIATION. 

THE UN-AMERICAN ACTIVITIES COMMITTEE WAS CREATED IN 1938.  IT
IMMEDIATELY CONCEIVED OF ITS FUNCTION ON A GRAND SCALE AS ONE OF
FERRETING OUT "SUBVERSIVES" AND ESPECIALLY OF HAVING THEM REMOVED FROM
GOVERNMENT JOBS.  (FN26)  IT MADE MANY REPORTS TO THE HOUSE URGING
REMOVAL OF SUCH EMPLOYEES.  (FN27)  FINALLY, AT THE INSTIGATION OF THE
COMMITTEE, THE HOUSE PUT A RIDER ON AN APPROPRIATION BILL TO BAR THREE
GOVERNMENT WORKERS FROM COLLECTING THEIR SALARIES.  (FN28)  THE HOUSE
ACTION WAS BASED ON COMMITTEE FINDINGS THAT EACH OF THE THREE EMPLOYEES
WAS A MEMBER OF, OR ASSOCIATED WITH, ORGANIZATIONS DEEMED UNDESIRABLE
AND THAT THE "VIEWS AND PHILOSOPHIES" OF THESE WORKERS "AS EXPRESSED IN
VARIOUS STATEMENTS AND WRITINGS CONSTITUTE SUBVERSIVE ACTIVITY WITHIN
THE DEFINITION ADOPTED BY YOUR COMMITTEE, AND THAT THEY ARE, THEREFORE,
UNFIT FOR THE PRESENT TO CONTINUE IN GOVERNMENT EMPLOYMENT."  (FN29)
THE SENATE AND THE PRESIDENT AGREED TO THE RIDER, THOUGH NOT WITHOUT
PROTEST.  WE HELD THAT STATUTE VOID AS A BILL OF ATTAINDER IN UNITED
STATES V. LOVETT, 328 U.S. 303 (1946), STATING THAT ITS "EFFECT WAS TO
INFLICT PUNISHMENT WITHOUT THE SAFEGUARDS OF A JUDICIAL TRIAL" AND THAT
THIS "CANNOT BE DONE EITHER BY A STATE OR BY THE UNITED STATES."  328
U.S., AT 316-317. 

EVEN AFTER OUR LOVETT HOLDING, HOWEVER, THE COMMITTEE CONTINUED TO
VIEW ITSELF AS THE "ONLY AGENCY OF GOVERNMENT THAT HAS THE POWER OF
EXPOSURE," AND TO WORK UNCEASINGLY AND SINCERELY TO IDENTIFY AND EXPOSE
ALL SUSPECTED COMMUNISTS AND "SUBVERSIVES" IN ORDER TO ELIMINATE THEM
FROM VIRTUALLY ALL FIELDS OF EMPLOYMENT.  (FN30)  HOW WELL IT HAS
SUCCEEDED IN ITS DECLARED PROGRAM OF "PITILESS PUBLICITY AND EXPOSURE"
IS A MATTER OF PUBLIC RECORD.  IT IS ENOUGH TO CITE THE EXPERIENCE OF A
MAN WHO MASQUERADED AS A COMMUNIST FOR THE F.B.I. AND WHO REPORTED TO
THIS SAME COMMITTEE THAT SINCE 1952 WHEN HIS "MEMBERSHIP" BECAME KNOWN
HE HAS BEEN UNABLE TO HOLD ANY JOB.  (FN31)  TO ACCOMPLISH THIS KIND OF
RESULT, THE COMMITTEE HAS CALLED WITNESSES WHO ARE SUSPECTED OF
COMMUNIST AFFILIATION, HAS SUBJECTED THEM TO SEVERE QUESTIONING AND HAS
INSISTED THAT EACH TELL THE NAME OF EVERY PERSON HE HAS EVER KNOWN AT
ANY TIME TO HAVE BEEN A COMMUNIST, AND, IF POSSIBLE, TO GIVE THE
ADDRESSES AND OCCUPATIONS OF THE PEOPLE NAMED.  THESE NAMES ARE THEN
INDEXED, PUBLISHED, AND REPORTED TO CONGRESS, AND OFTEN TO THE PRESS. 
(FN32)  THE SAME TECHNIQUE IS EMPLOYED TO CRIPPLE THE JOB OPPORTUNITIES
OF THOSE WHO STRONGLY CRITICIZE THE COMMITTEE OR TAKE OTHER ACTIONS IT
DEEMS UNDESIRABLE.  (FN33) THUS, IN 1949, THE COMMITTEE REPORTED THAT
IT THAT IT HAD INDEXED AND PRINTED SOME 335,000 NAMES OF PEOPLE WHO HAD
SIGNED "COMMUNIST" PETITIONS OF ONE KIND OR ANOTHER.  (FN34)  ALL THIS
THE COMMITTEE DID AND DOES TO PUNISH BY EXPOSURE THE MANY PHASES OF "UN
AMERICAN" ACTIVITIES THAT IT REPORTS CANNOT BE REACHED BY LEGISLATION,
BY ADMINISTRATIVE ACTION, OR BY ANY OTHER AGENCY OF GOVERNMENT, WHICH,
OF COURSE, INCLUDES THE COURTS. 

THE SAME INTENT TO EXPOSE AND PUNISH IS MANIFEST IN THE COMMITTEE'S
INVESTIGATION WHICH LED TO BARENBLATT'S CONVICTION.  THE DECLARED
PURPOSE OF THE INVESTIGATION WAS TO IDENTIFY TO THE PEOPLE OF MICHIGAN
THE INDIVIDUALS RESPONSIBLE FOR THE, ALLEGED, COMMUNIST SUCCESS THERE. 
(FN35)  THE COMMITTEE CLAIMED THAT ITS INVESTIGATION "UNCOVERED"
MEMBERS OF THE COMMUNIST PARTY HOLDING POSITIONS IN THE SCHOOL SYSTEMS
IN MICHIGAN; THAT MOST OF THE TEACHERS SUBPOENAED BEFORE THE COMMITTEE
REFUSED TO ANSWER QUESTIONS ON THE GROUND THAT TO DO SO MIGHT RESULT IN
SELF-INCRIMINATION, AND THAT MOST OF THESE TEACHERS HAD LOST THEIR
JOBS.  IT THEN STATED THAT "THE COMMITTEE ON UN-AMERICAN ACTIVITIES
APPROVES OF THIS ACTION  ...  ."  (FN36)  SIMILARLY, AS A RESULT OF ITS
MICHIGAN INVESTIGATION, THE COMMITTEE CALLED UPON AMERICAN LABOR UNIONS
TO AMEND THEIR CONSTITUTIONS, IF NECESSARY, IN ORDER TO DENY MEMBERSHIP
TO ANY COMMUNIST PARTY MEMBER.  (FN37) THIS WOULD, OF COURSE, PREVENT
MANY WORKERS FROM GETTING OR HOLDING THE ONLY KIND OF JOBS THEIR
PARTICULAR SKILLS QUALIFIED THEM FOR.  THE COURT, TODAY, BARELY
MENTIONS THESE STATEMENTS, WHICH, ESPECIALLY WHEN READ IN THE CONTEXT
OF PAST REPORTS BY THE COMMITTEE, SHOW UNMISTAKABLY WHAT THE COMMITTEE
WAS DOING.  I CANNOT UNDERSTAND WHY THESE REPORTS ARE DEEMED RELEVANT
TO A DETERMINATION OF A CONGRESSIONAL INTENT TO INVESTIGATE COMMUNISM
IN EDUCATION, BUT IRRELEVANT TO ANY FINDING OF CONGRESSIONAL INTENT TO
BRING ABOUT EXPOSURE FOR ITS OWN SAKE OR FOR THE PURPOSES OF
PUNISHMENT.    I DO NOT QUESTION THE COMMITTEE'S PATRIOTISM AND
SINCERITY IN DOING ALL THIS.  (FN38)  I MERELY FEEL THAT IT CANNOT BE
DONE BY CONGRESS UNDER OUR CONSTITUTION.  FOR, EVEN ASSUMING THAT THE
FEDERAL GOVERNMENT CAN COMPEL WITNESSES TO TESTIFY AS TO COMMUNIST
AFFILIATIONS IN ORDER TO SUBJECT THEM TO RIDICULE AND SOCIAL AND
ECONOMIC RETALIATION, I CANNOT AGREE THAT THIS IS A LEGISLATIVE
FUNCTION.  SUCH PUBLICITY IS CLEARLY PUNISHMENT, AND THE CONSTITUTION
ALLOWS ONLY ONE WAY IN WHICH PEOPLE CAN BE CONVICTED AND PUNISHED.  AS
WE SAID IN LOVETT, "THOSE WHO WROTE OUR CONSTITUTION WELL KNEW THE
DANGER INHERENT IN SPECIAL LEGISLATIVE ACTS WHICH TAKE AWAY THE LIFE,
LIBERTY OR PROPERTY OF PARTICULAR NAMED PERSONS BECAUSE THE LEGISLATURE
THINKS THEM GUILTY OF CONDUCT WHICH DESERVES PUNISHMENT.  THEY INTENDED
TO SAFEGUARD THE PEOPLE OF THIS COUNTRY FROM PUNISHMENT WITHOUT TRIAL
BY DULY CONSTITUTED COURTS."  328 U.S., AT 317.  THUS IF COMMUNISM IS
TO BE MADE A CRIME, AND COMMUNISTS ARE TO BE SUBJECTED TO "PAINS AND
PENALTIES," I WOULD STILL HOLD THIS CONVICTION BAD, FOR THE CRIME OF
COMMUNISM, LIKE ALL OTHERS, CAN BE PUNISHED ONLY BY COURT AND JURY
AFTER A TRIAL WITH ALL JUDICIAL SAFEGUARDS. 

IT IS NO ANSWER TO ALL THIS TO SUGGEST THAT LEGISLATIVE COMMITTEES
SHOULD BE ALLOWED TO PUNISH IF THEY GRANT THE ACCUSED SOME RULES OF
COURTESY OR ALLOW HIM COUNSEL.  FOR THE CONSTITUTION PROSCRIBES ALL
BILLS OF ATTAINDER BY STATE OR NATION, NOT MERELY THOSE WHICH LACK
COUNSEL OR COURTESY.  IT DOES THIS BECAUSE THE FOUNDERS BELIEVED THAT
PUNISHMENT WAS TOO SERIOUS A MATTER TO BE ENTRUSTED TO ANY GROUP OTHER
THAN AN INDEPENDENT JUDICIARY AND A JURY OF TWELVE MEN ACTING ON
PREVIOUSLY PASSED, UNAMBIGUOUS LAWS, WITH ALL THE PROCEDURAL SAFEGUARDS
THEY PUT IN THE CONSTITUTION AS ESSENTIAL TO A FAIR TRIAL - SAFEGUARDS
WHICH INCLUDED THE RIGHT TO COUNSEL, COMPULSORY PROCESS FOR WITNESSES,
SPECIFIC INDICTMENTS, CONFRONTATION OF ACCUSERS, AS WELL AS PROTECTION
AGAINST SELF-INCRIMINATION, DOUBLE JEOPARDY AND CRUEL AND UNUSUAL
PUNISHMENT - IN SHORT, DUE PROCESS OF LAW.  CF. CHAMBERS V. FLORIDA,
309 U.S. 227.  THEY BELIEVED THIS BECAUSE NOT LONG BEFORE WORTHY MEN
HAD BEEN DEPRIVED OF THEIR LIBERTIES, AND INDEED THEIR LIVES, THROUGH
PARLIAMENTARY TRIALS WITHOUT THESE SAFEGUARDS.  THE MEMORY OF ONE OF
THESE, JOHN LILBURNE - BANISHED AND DISGRACED BY A PARLIAMENTARY
COMMITTEE ON PENALTY OF DEATH IF HE RETURNED TO HIS COUNTRY - WAS
PARTICULARLY VIVID WHEN OUR CONSTITUTION WAS WRITTEN.  HIS ATTACK ON
TRIALS BY SUCH COMMITTEES AND HIS WARNING THAT "WHAT IS DONE UNTO ANY
ONE, MAY BE DONE UNTO EVERY ONE" (FN39) WERE PART OF THE HISTORY OF THE
TIMES WHICH MOVED THOSE WHO WROTE OUR CONSTITUTION TO DETERMINE THAT NO
SUCH ARBITRARY PUNISHMENTS SHOULD EVER OCCUR HERE.  IT IS THE
PROTECTION FROM ARBITRARY PUNISHMENTS THROUGH THE RIGHT TO A JUDICIAL
TRIAL WITH ALL THESE SAFEGUARDS WHICH OVER THE YEARS HAS DISTINGUISHED
AMERICA FROM LANDS WHERE DRUMHEAD COURTS AND OTHER SIMILAR "TRIBUNALS"
DEPRIVE THE WEAK AND THE UNORTHODOX OF LIFE, LIBERTY AND PROPERTY
WITHOUT DUE PROCESS OF LAW.  IT IS THIS SAME RIGHT WHICH IS DENIED TO
BARENBLATT, BECAUSE THE COURT TODAY FAILS TO SEE WHAT IS HERE FOR ALL
TO SEE - THAT EXPOSURE AND PUNISHMENT IS THE AIM OF THIS COMMITTEE AND
THE REASON FOR ITS EXISTENCE.  TO DENY THIS IS TO IGNORE THE
COMMITTEE'S OWN CLAIMS AND THE REPORTS IT HAS ISSUED EVER SINCE IT WAS
ESTABLISHED.  I CANNOT BELIEVE THAT THE NATURE OF OUR JUDICIAL OFFICE
REQUIRES US TO BE SO BLIND, AND MUST CONCLUDE THAT THE UN-AMERICAN
ACTIVITIES COMMITTEE'S "IDENTIFICATION" AND "EXPOSURE" OF COMMUNISTS
AND SUSPECTED COMMUNISTS, LIKE THE ACTIVITIES OF THE COMMITTEE IN
KILBOURN V. THOMPSON, AMOUNT TO AN ENCROACHMENT ON THE JUDICIARY WHICH
BODES ILL FOR THE LIBERTIES OF THE PEOPLE OF THIS LAND. 

ULTIMATELY ALL THE QUESTIONS IN THIS CASE REALLY BOIL DOWN TO ONE -
WHETHER WE AS A PEOPLE WILL TRY FEARFULLY AND FUTILELY TO PRESERVE
DEMOCRACY BY ADOPTING TOTALITARIAN METHODS, OR WHETHER IN ACCORDANCE
WITH OUR TRADITIONS AND OUR CONSTITUTION WE WILL HAVE THE CONFIDENCE
AND COURAGE TO BE FREE. 

I WOULD REVERSE THIS CONVICTION. 

FN1  BILLS OF ATTAINDER ARE AMONG THE FEW MEASURES EXPLICITLY
FORBIDDEN TO BOTH STATE AND FEDERAL GOVERNMENTS BY THE BODY OF THE
CONSTITUTION ITSELF.  U.S. CONST., ART. I, SEC. 9, CL. 3, STATES "NO
BILL OF ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED."  U.S. CONST.,
ART. I, SEC. 10, CL. 1, READS IN PART "NO STATE SHALL  ... PASS ANY
BILL OF ATTAINDER OR EX POST FACTO LAW  ...  ." 

FN2  E.G., LANZETTA V. NEW JERSEY, 306 U.S. 451; WINTERS V. NEW YORK,
333 U.S. 507, 515; JORDAN V. DE GEORGE, 341 U.S. 223, 230-231. 

FN3  E.G., WATKINS V. UNITED STATES, 354 U.S. 178, 207-208; FLAXER V.
UNITED STATES, 358 U.S. 147; SCULL V. VIRGINIA, 359 U.S. 344. 

FN4  SEE, E.G., HERNDON V. LOWRY, 301 U.S. 242; WINTERS V. NEW YORK,
333 U.S. 507; WATKINS V. UNITED STATES, 354 U.S. 178; SCULL V.
VIRGINIA, 359 U.S. 344. 

FN5  THORNHILL V. ALABAMA, 310 U.S. 88, 97-98.  CF. HERNDON V. LOWRY,
301 U.S. 242. 

FN6  RULE XI IN RELEVANT PART READS, "THE COMMITTEE ON UN-AMERICAN
ACTIVITIES, AS A WHOLE OR BY SUBCOMMITTEE, IS AUTHORIZED TO MAKE FROM
TIME TO TIME INVESTIGATIONS OF (1) THE EXTENT, CHARACTER, AND OBJECTS
OF UN-AMERICAN PROPAGANDA ACTIVITIES IN THE UNITED STATES, (2) THE
DIFFUSION WITHIN THE UNITED STATES OF SUBVERSIVE AND UN-AMERICAN
PROPAGANDA THAT IS INSTIGATED FROM FOREIGN COUNTRIES OR OF A DOMESTIC
ORIGIN AND ATTACKS THE PRINCIPLE OF THE FORM OF GOVERNMENT AS
GUARANTEED BY OUR CONSTITUTION, AND (3) ALL OTHER QUESTIONS IN RELATION
THERETO THAT WOULD AID CONGRESS IN ANY NECESSARY REMEDIAL
LEGISLATION."  H. RES. 5, 83D CONG., 1ST SESS., 99 CONG. REC. 15, 18,
24.  SEE ALSO H. RES. 7, 86TH CONG., 1ST SESS., CONG. REC., JAN. 7,
1959, P. 13. 

FN7  SEE, E.G., PANAMA REFINING CO. V. RYAN, 293 U.S. 388; SCHECHTER
POULTRY CORP. V. UNITED STATES, 295 U.S. 495; ID., AT 551 (CONCURRING
OPINION); BERRA V. UNITED STATES, 351 U.S. 131, 135 (DISSENTING
OPINION); WATKINS V. UNITED STATES, 354 U.S. 178, 203-205; SWEEZY V.
NEW HAMPSHIRE, 354 U.S. 234.  CF. UNITED STATES V. RUMELY, 345 U.S. 41;
KENT V. DULLES, 357 U.S. 116.  THESE CASES SHOW THAT WHEN THIS COURT
CONSIDERED THAT THE LEGISLATIVE MEASURES INVOLVED WERE OF DOUBTFUL
CONSTITUTIONALITY SUBSTANTIVELY, IT REQUIRED EXPLICIT DELEGATIONS OF
POWER. 

FN8  IT IS OF COURSE NO ANSWER TO BARENBLATT'S CLAIM THAT RULE XI IS
TOO VAGUE, TO SAY THAT IF IT HAD BEEN TOO VAGUE IT WOULD HAVE BEEN SO
HELD IN WATKINS V. UNITED STATES, 354 U.S. 178.  IT WOULD BE A STRANGE
RULE, INDEED, WHICH WOULD IMPLY THE INVALIDITY OF A BROAD GROUND OF
DECISION FROM THE FACT THAT THIS COURT DECIDED AN EARLIER CASE ON A
NARROWER BASIS. 

FN9  THE FIRST AMENDMENT READS:  "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."  THERE CAN BE NO DOUBT THAT
THE SAME AMENDMENT PROTECTS THE RIGHT TO KEEP SILENT.  SEE WEST
VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624; N.A.A.C.P. V.
ALABAMA, 357 U.S. 449, 460-466; SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234,
255 (CONCURRING OPINION); WATKINS V. UNITED STATES, 354 U.S. 178; SCULL
V. VIRGINIA, 359 U.S. 344.  CF. UNITED STATES V. RUMELY, 345 U.S. 41. 

FN10  I DO NOT UNDERSTAND THE COURT'S OPINION IN WATKINS V. UNITED
STATES, 354 U.S. 178, 198, TO APPROVE THE TYPE OF BALANCING PROCESS
ADOPTED IN THE COURT'S OPINION HERE.  WE DID DISCUSS IN THAT CASE "THE
WEIGHT TO BE ASCRIBED TO  ...  THE INTEREST OF THE CONGRESS IN
DEMANDING THE DISCLOSURES FROM AN UNWILLING WITNESS."  AS I READ, AND
STILL READ, THE COURT'S DISCUSSION OF THIS PROBLEM IN WATKINS IT WAS
REFERRING TO THE PROBLEMS RAISED BY KILBOURN V. THOMPSON, 103 U.S. 168,
WHICH HELD THAT LEGISLATIVE COMMITTEES COULD NOT MAKE ROVING INQUIRIES
INTO THE PRIVATE BUSINESS AFFAIRS OF WITNESSES.  THE COURT, IN
KILBOURN, HELD THAT THE COURTS MUST BE CAREFUL TO INSURE THAT, ON
BALANCE, CONGRESS DID NOT UNJUSTIFIABLY ENCROACH ON AN INDIVIDUAL'S
PRIVATE BUSINESS AFFAIRS.  NEEDLESS TO SAY, AN INDIVIDUAL'S RIGHT TO
SILENCE IN SUCH MATTERS IS QUITE A DIFFERENT THING FROM THE PUBLIC'S
INTEREST IN FREEDOM OF SPEECH AND THE TEST APPLICABLE TO ONE HAS
LITTLE, IF ANYTHING, TO DO WITH THE TEST APPLICABLE TO THE OTHER. 

FN11  1 ANNALS OF CONG. 439 (1789). 

FN12  "THE GREATER THE IMPORTANCE OF SAFEGUARDING THE COMMUNITY FROM
INCITEMENTS TO THE OVERTHROW OF OUR INSTITUTIONS BY FORCE AND VIOLENCE,
THE MORE IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE AND
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN
ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE
END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND
THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN
LIES THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF
CONSTITUTIONAL GOVERNMENT."  DE JONGE V. OREGON, 299 U.S. 353, 365. 

FN13  CF. STATEMENT OF SIR RICHARD NAGLE PRESENTING A BILL OF
ATTAINDER AGAINST BETWEEN TWO AND THREE THOUSAND PERSONS FOR POLITICAL
OFFENSES, "'MANY OF THE PERSONS HERE ATTAINTED,' SAID HE, 'HAVE BEEN
PROVED TRAITORS BY SUCH EVIDENCE AS SATISFIES US.  AS TO THE REST WE
HAVE FOLLOWED COMMON FAME.'"  CITED IN JOINT ANTI-FASCIST COMMITTEE V.
MCGRATH, 341 U.S. 123, 142, 148 (CONCURRING OPINION). 

FN14  SEE HEARINGS, SENATE COMMITTEE ON THE JUDICIARY ON H.R. 5852,
80TH CONG., 2D SESS. 415-420, 420-422. 

FN15  ID., AT 422-425.  SEE ALSO HEARINGS, SUBCOMMITTEE ON
LEGISLATION OF THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES ON H.R.
4422, H.R. 4581, 80TH CONG., 2D SESS. 16-37. 

FN16  HEARINGS, SUBCOMMITTEE ON LEGISLATION OF THE COMMITTEE ON UN
AMERICAN ACTIVITIES ON H.R. 4422, H.R. 4581, 80TH CONG., 2D SESS. 13. 
THIS STATEMENT WAS RELIED ON BY THE HONORABLE THOMAS E. DEWEY, THEN A
CANDIDATE FOR THE PRESIDENCY OF THE UNITED STATES, IN A SPEECH GIVEN IN
PORTLAND, OREGON, IN MAY, 1948.  MR. DEWEY WENT ON TO SAY, IN OPPOSING
OUTLAWRY OF THE COMMUNIST PARTY: 

"I AM AGAINST IT BECAUSE IT IS A VIOLATION OF THE CONSTITUTION OF THE
UNITED STATES AND OF THE BILL OF RIGHTS, AND CLEARLY SO.  I AM AGAINST
IT BECAUSE IT IS IMMORAL AND NOTHING BUT TOTALITARIANISM ITSELF.  I AM
AGAINST IT BECAUSE I KNOW FROM A GREAT MANY YEARS' EXPERIENCE IN THE
ENFORCEMENT OF THE LAW THAT THE PROPOSAL WOULDN'T WORK, AND INSTEAD IT
WOULD RAPIDLY ADVANCE THE CAUSE OF COMMUNISM IN THE UNITED STATES AND
ALL OVER THE WORLD. 

     *         *         *      *         * 

"THERE IS AN AMERICAN WAY TO DO THIS JOB, A PERFECTLY SIMPLE AMERICAN
WAY  ...  OUTLAWING EVERY CONCEIVABLE ACT OF SUBVERSION AGAINST THE
UNITED STATES  ...  . 

*         *         *         *         * 

"NOW, TIMES ARE TOO GRAVE TO TRY ANY EXPEDIENTS AND FAIL.  THIS
EXPEDIENT HAS FAILED, THIS EXPEDIENT OF OUTLAWING HAS FAILED IN
RUSSIA.  IT FAILED IN EUROPE, IT FAILED IN ITALY, IT FAILED IN CANADA
...  . 

"LET US NOT MAKE SUCH A TERRIFIC BLUNDER IN THE UNITED STATES  ...  .
LET US GO FORWARD AS FREE AMERICANS.  LET US HAVE THE COURAGE TO BE
FREE."  XIV VITAL SPEECHES OF THE DAY, 486-487. 

FN17  HEARINGS, SUBCOMMITTEE ON LEGISLATION OF THE COMMITTEE ON UN
AMERICAN ACTIVITIES ON H.R. 4422, H.R. 4581, 80TH CONG., 2D SESS. 20. 
COMPARE STATEMENT OF JOHN LILBURNE, "WHAT IS DONE UNTO ANY ONE, MAY BE
DONE UNTO EVERY ONE."  NOTE 39, INFRA. 

FN18  S. DOC. NO. 97, 85TH CONG., 2D SESS. 149, LISTS THE STATES WITH
LAWS RELATING TO THE COMMUNIST PARTY AND THE BALLOT.  SEE ALSO, FUND
FOR THE REPUBLIC, DIGEST OF THE PUBLIC RECORD OF COMMUNISM IN THE
UNITED STATES, 324-343.  FOR A DISCUSSION OF STATE LAWS REQUIRING A
MINIMUM PERCENTAGE OF THE VOTES CAST TO REMAIN ON THE BALLOT, SEE NOTE,
57 YALE L.J. 1276. 

FN19  SEE O'BRIAN, LOYALTY TESTS AND GUILT BY ASSOCIATION, 61 HARV.
L. REV. 592, 593.  SIGNIFICANTLY THE ACTION OF THE NEW YORK ASSEMBLY
WAS STRONGLY CONDEMNED BY CHARLES EVANS HUGHES, THEN A FORMER ASSOCIATE
JUSTICE OF THIS COURT, AND LATER ITS CHIEF JUSTICE. 

FN20  SEE GENERALLY, MCCARTHY, THE ANTIMASONIC PARTY:  A STUDY OF
POLITICAL ANTIMASONRY IN THE UNITED STATES, 1827-1840.  H.R. DOC. NO.
461, 57TH CONG., 2D SESS. 365.  NYE, WILLIAM LLOYD GARRISON, 88-105;
KORNGOLD, TWO FRIENDS OF MAN, 82-104.  CF. ST. GEORGE TUCKER, APPENDIX,
1 BLACKSTONE (TUCKER ED. 1803) 315, DISCUSSING ENGLISH LAWS "FOR
SUPPRESSING ASSEMBLIES OF FREE-MASONS" AND POINTING OUT THAT SIMILAR
LAWS CANNOT BE ENACTED UNDER OUR CONSTITUTION. 

FN21  AMES, LAOCOON, PRINTED IN WORKS OF FISHER AMES (1809 ED.), 94,
97, 101, 106.  SEE ALSO AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382, 445 (DISSENTING OPINION). 

FN22  CF. MILL, ON LIBERTY (1885 ED.), 30 (CRITICIZING LAWS
RESTRICTING THE RIGHT TO ADVOCATE TYRANNICIDE). 

FN23  CF. ST. GEORGE TUCKER, APPENDIX, 1 BLACKSTONE COMMENTARIES
(TUCKER ED. 1803) 299.  "THE JUDICIAL COURTS OF THE RESPECTIVE STATES
ARE OPEN TO ALL PERSONS ALIKE, FOR THE REDRESS OF INJURIES OF THIS
NATURE (LIBEL); ...  .  BUT THE GENIUS OF OUR GOVERNMENT WILL NOT
PERMIT THE FEDERAL LEGISLATURE TO INTERFERE WITH THE SUBJECT; AND THE
FEDERAL COURTS ARE, I PRESUME, EQUALLY RESTRAINED BY THE PRINCIPLES OF
THE CONSTITUTION, AND THE AMENDMENTS WHICH HAVE SINCE BEEN ADOPTED." 
FN24  THE RECORD IN THIS VERY CASE INDICATES HOW EASILY SUCH
RESTRICTIONS SPREAD.  DURING THE TESTIMONY OF ONE WITNESS AN
ORGANIZATION KNOWN AS THE AMERICANS FOR DEMOCRATIC ACTION WAS
MENTIONED.   DESPITE TESTIMONY THAT THIS ORGANIZATION DID NOT ADMIT
COMMUNISTS, ONE MEMBER OF THE COMMITTEE INSISTED THAT IT WAS A
COMMUNIST FRONT BECAUSE "IT FOLLOWED A PARTY LINE, ALMOST IDENTICAL IN
MANY PARTICULARS WITH THE COMMUNIST PARTY LINE."  PRESUMABLY IF THIS
ACCUSATION WERE REPEATED FREQUENTLY AND LOUDLY ENOUGH THAT
ORGANIZATION, OR ANY OTHER, WOULD ALSO BE CALLED A "CRIMINAL GANG." 
CF. FEINER V. NEW YORK, 340 U.S. 315, 321, 329 (DISSENTING OPINIONS). 
FN25  SEE GENERALLY, XII ENCYCLOPEDIA OF THE SOCIAL SCIENCES 714;
BARNES, THE STORY OF PUNISHMENT, 62-64; LOWIE, PRIMITIVE SOCIETY, 398;
ANDREWS, OLD-TIME PUNISHMENTS (1890 ED.), 1-145, 164-187; IV PLUTARCH'S
LIVES (CLOUGH, NEW NAT. ED. 1914) 43-44. 

FN26  IN ITS VERY FIRST REPORT IT STATED, "THE COMMITTEE HAS FELT
THAT IT IS ITS SWORN DUTY AND SOLEMN OBLIGATION TO THE PEOPLE OF THIS
COUNTRY TO FOCUS THE SPOTLIGHT OF PUBLICITY UPON EVERY INDIVIDUAL AND
ORGANIZATION ENGAGED IN SUBVERSIVE ACTIVITIES REGARDLESS OF POLITICS OR
PARTISANSHIP."  IT FURTHER CLAIMED THAT, "WHILE CONGRESS DOES NOT HAVE
THE POWER TO DENY TO CITIZENS THE RIGHT TO BELIEVE IN, TEACH, OR
ADVOCATE, COMMUNISM, FASCISM, AND NAZISM, IT DOES HAVE THE RIGHT TO
FOCUS THE SPOTLIGHT OF PUBLICITY UPON THEIR ACTIVITIES  ...  ."  H.R.
REP. NO. 2, 76TH CONG., 1ST SESS. 9-10, 13.  SEE ALSO THE STATEMENT OF
THE COMMITTEE'S FIRST CHAIRMAN, "I AM NOT IN A POSITION TO SAY WHETHER
WE CAN LEGISLATE EFFECTIVELY IN REFERENCE TO THIS MATTER, BUT I DO KNOW
THAT EXPOSURE IN A DEMOCRACY OF SUBVERSIVE ACTIVITIES IS THE MOST
EFFECTIVE WEAPON THAT WE HAVE IN OUR POSSESSION."  83 CONG. REC. 7570
(1938). 

FN27  SEE, E.G., H.R. REP. NO. 2748, 77TH CONG., 2D SESS. 5.  "ON
SEPTEMBER 6, 1941, THE CHAIRMAN OF THIS COMMITTEE WROTE THE PRESIDENT A
LETTER, ACCOMPANIED BY 43 EXHIBITS, DETAILING THE COMMUNIST AFFILIATION
AND BACKGROUND OF THE FOLLOWING OFFICIALS ...  AND SUGGESTED THAT THEY
BE DISMISSED FROM THEIR POSITIONS."  "ON NOVEMBER 28, 1941  ...  THE
CHAIRMAN CALLED THE ATTENTION OF THE MEMBERS TO THE CASE OF THE
PRINCIPAL ENONOMIST IN THE DEPARTMENT OF AGRICULTURE"; "ON JANUARY 15,
1942, THE CHAIRMAN OF THE COMMITTEE  ...  CALLED ATTENTION TO  ...  ONE
MALCOLM COWLEY  ...  .  SEVERAL WEEKS LATER MR. COWLEY RESIGNED HIS
POSITION WITH THE FEDERAL GOVERNMENT"; "ON MARCH 28, 1942, THE CHAIRMAN
WROTE A LETTER TO THE  ...  CHAIRMAN OF THE BOARD OF ECONOMIC WELFARE,
AND CALLED ATTENTION TO  ...  EIGHT OF ITS EMPLOYEES AND MADE
PARTICULAR REFERENCE TO ONE MAURICE PARMELEE  ...  .  THE FOLLOWING
WEEK, MR. PARMELEE WAS DISMISSED  ...  ."  ID., AT 6.  "IN THE
CHAIRMAN'S SPEECH OF SEPTEMBER 24 (1942) HE ALSO PRESENTED TO THE HOUSE
THE NAMES OF 19 OFFICIALS OF THE GOVERNMENT  ... .  YET, TO THE
COMMITTEE'S KNOWLEDGE, NO ACTION HAS BEEN TAKEN IN THE CASES OF THE 19
OFFICIALS."  ID., AT 8. 

FN28  SECTION 304 OF THE URGENT DEFICIENCY APPROPRIATION ACT, 1943,
57 STAT. 431, 450.  THE HISTORY OF THIS RIDER IS DETAILED IN UNITED
STATES V. LOVETT, 328 U.S. 303. 

FN29  SEE, E.G., H.R. REP. NO. 448, 78TH CONG., 1ST SESS. 6, 8.  THE
UN-AMERICAN ACTIVITIES COMMITTEE DID NOT ACTUALLY UNDERTAKE THE TRIALS
OF THESE GOVERNMENT EMPLOYEES.  THAT TASK FELL TO A SPECIAL
SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS WHICH WAS CREATED IN
RESPONSE TO A SPEECH BY THE CHAIRMAN OF THE UN-AMERICAN ACTIVITIES
COMMITTEE.  ID., AT 3. 

FN30  VIRTUALLY EVERY REPORT OF THE COMMITTEE EMPHASIZES THAT ITS
PRINCIPAL FUNCTION IS EXPOSURE AND THAT ONCE EXPOSED SUBVERSIVES MUST
BE DRIVEN OUT.  SPACE, HOWEVER, PREVENTS LISTING MORE THAN A RANDOM
SAMPLING OF STATEMENTS BY THE COMMITTEE.  THESE ARE GIVEN IN AN
APPENDIX TO THIS OPINION, POST, P. 163.  FOR OTHER SIMILAR STATEMENTS
BY THE COMMITTEE AND ITS MEMBERS SEE, E.G., NOTES 26, 27, SUPRA; 31-37,
INFRA; WATKINS V. UNITED STATES, 354 U.S. 178; UNITED STATES V.
JOSEPHSON, 165 F.2D 82, 93 (DISSENTING OPINION); BARSKY V. UNITED
STATES, 83 U.S. APP. D.C. 127, 138, 167 F.2D 241, 252 (DISSENTING
OPINION). 

FN31  THIS EVIDENCE WAS GIVEN BEFORE THE COMMITTEE ON MAY 7, 1959, IN
CHICAGO, ILL.  IT HAS NOT YET BEEN PUBLISHED. 

EVEN THOSE THE COMMITTEE DOES NOT WISH TO INJURE ARE OFTEN HURT BY
ITS TACTICS, SO ALL-PERVASIVE IS THE EFFECT OF ITS INVESTIGATIONS. 

"IT HAS BEEN BROUGHT TO THE ATTENTION OF THE COMMITTEE THAT MANY
PERSONS SO SUBPENAED  ...  HAVE BEEN SUBJECTED TO RIDICULE AND
DISCRIMINATION AS A RESULT OF HAVING RECEIVED SUCH SUBPENAS"; "THE
COMMITTEE  ...  HAS MET WITH MANY OBSTACLES AND DIFFICULTIES.  NOT THE
LEAST OF THESE HAS BEEN THE RELUCTANCE OF FORMER COMMUNISTS TO GIVE
TESTIMONY BEFORE THE COMMITTEE WHICH MIGHT BRING UPON THEM PUBLIC
CENSURE AND ECONOMIC RETALIATION"; "TO DENY TO THESE COOPERATIVE
WITNESSES A FULL OPPORTUNITY FOR SOCIAL, ECONOMIC, AND POLITICAL
REHABILITATION  ...  WILL  ...  RENDER MORE DIFFICULT THE OBTAINING OF
AUTHENTIC  ...  INFORMATION."  H.R. REP. NO. 2431, 82D CONG., 2D SESS.
5. 

"WHILE THE AMERICAN PEOPLE  ...  WERE FORTUNATE TO HAVE THIS
TESTIMONY, SOME OF THE WITNESSES THEMSELVES WERE NOT.  INSTANCES HAVE
COME TO THE COMMITTEE'S ATTENTION WHERE SEVERAL OF THESE WITNESSES HAVE
BEEN FORCED FROM GAINFUL EMPLOYMENT WHICH THEY COMPETENTLY HELD FOR
YEARS PRIOR TO THEIR TESTIMONY."  H.R. REP. NO. 2516, 82D CONG., 2D
SESS. 3. 

FN32  DESCRIPTIONS OF THE SIZE AND AVAILABILITY OF COMMITTEE'S FILES
AS WELL AS THE EFFICIENCY OF ITS CROSS-INDEXING SYSTEM CAN BE FOUND IN
MOST OF ITS REPORTS.  SEE, E.G., H.R. REP. NO. 2742, 79TH CONG., 2D
SESS. 16-17; H.R. REP. NO. 1950, 81ST CONG., 2D SESS.  18-23; H.R. REP.
NO. 2431, 82D CONG., 2D SESS. 24-28. 

FN33  IT IS IMPOSSIBLE EVEN TO BEGIN TO CATALOGUE PEOPLE WHO HAVE
BEEN STIGMATIZED BY THE COMMITTEE FOR CRITICIZING IT.  IN 1942 THE
COMMITTEE REPORTED "HENRY LUCE'S TIME MAGAZINE HAS BEEN DRAWN SUCKER
FASHION INTO THIS MOVEMENT TO ALTER OUR FORM OF GOVERNMENT  ...  ." 
H.R. REP. NO. 2277, 77TH CONG., 2D SESS. 2.  IN 1946 HAROLD LASKI AND
SOCIALISTS GENERALLY WERE ATTACKED FOR THEIR "IMPERTINENCE IN
SUGGESTING THAT THE UNITED STATES SHOULD TRADE ITS SYSTEM OF FREE
ECONOMY FOR SOME BRAND OF SOCIALISM."  THE COMMITTEE DEEMED IT
"IMPERATIVE" THAT IT ASCERTAIN THE "METHODS USED TO ENABLE MR. LASKI TO
BROADCAST TO A RALLY."  H.R. REP. NO. 2233, 79TH CONG., 2D SESS. 46
47.  IN 1951 A FULL REPORT WAS ISSUED ON A "COMMUNIST LOBBY" - A
COMMITTEE FORMED TO URGE DEFEAT OF A COMMUNIST CONTROL BILL BEFORE
CONGRESS.  AMONG THE DISTINGUISHED SPONSORS OF THE GROUP LISTED BY THE
COMMITTEE WAS THE LATE PROF. ZECHARIAH CHAFEE.  THE COMMITTEE,
NEVERTHELESS, ADVISED "THE AMERICAN PUBLIC THAT INDIVIDUALS WHO
KNOWINGLY AND ACTIVELY SUPPORT SUCH A PROPAGANDA OUTLET  ...  ARE
ACTUALLY AIDING AND ABETTING THE COMMUNIST PROGRAM IN THE UNITED
STATES."  H.R. REP. NO. 3248, 81ST CONG., 2D SESS. 1, 11-12, 15.  SEE
ALSO, GELLHORN, REPORT ON A REPORT OF THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES, 60 HARV. L. REV. 1193. 

FN34  H.R. REP. NO. 1950, 81ST CONG., 2D SESS. 19. 

FN35  "THE 1954 HEARINGS WERE SET UP BY THE COMMITTEE IN ORDER TO
DEMONSTRATE TO THE PEOPLE OF MICHIGAN THE FIELDS OF CONCENTRATION OF
THE COMMUNIST PARTY IN THE MICHIGAN AREA, AND THE IDENTITY OF THOSE
INDIVIDUALS RESPONSIBLE FOR ITS SUCCESS."  H.R. REP.  NO. 57, 84TH
CONG., 1ST SESS. 15. 

FN36  ID., AT 17. 

FN37  "THE COMMITTEE ON UN-AMERICAN ACTIVITIES CALLS UPON THE
AMERICAN LABOR MOVEMENT  ...  TO AMEND ITS CONSTITUTIONS WHERE
NECESSARY IN ORDER TO DENY MEMBERSHIP TO A MEMBER OF THE COMMUNIST
PARTY OR ANY OTHER GROUP WHICH DEDICATES ITSELF TO THE DESTRUCTION OF
AMERICA'S WAY OF LIFE."  IBID.

FN38  SINCERITY AND PATRIOTISM DO NOT, UNFORTUNATELY, INSURE AGAINST
UNCONSTITUTIONAL ACTS.  INDEED, SOME OF THE MOST LAMENTABLE AND TRAGIC
DEATHS OF HISTORY WERE INSTIGATED BY ABLE, PATRIOTIC AND SINCERE MEN. 
SEE GENERALLY MILL, ON LIBERTY (1885 ED.), 43-48. 

FN39  "FOR CERTAINLY IT CANNOT BE DENIED, BUT IF HE BE REALLY AN
OFFENDER, HE IS SUCH BY THE BREACH OF SOME LAW, MADE AND PUBLISHED
BEFORE THE FACT, AND OUGHT BY DUE PROCESS OF LAW, AND VERDICT OF 12
MEN, TO BE THEREOF CONVICT, AND FOUND GUILTY OF SUCH CRIME; UNTO WHICH
THE LAW ALSO HATH PRESCRIBED SUCH A PUNISHMENT AGREEABLE TO THAT OUR
FUNDAMENTAL LIBERTY; WHICH ENJOINETH THAT NO FREEMAN OF ENGLAND SHOULD
BE ADJUDGED OF LIFE, LIMB, LIBERTY, OR ESTATE, BUT BY JURIES; A FREEDOM
WHICH PARLIAMENTS IN ALL AGES CONTENDED TO PRESERVE FROM VIOLATION; AS
THE BIRTHRIGHT AND CHIEF INHERITANCE OF THE PEOPLE, AS MAY APPEAR MOST
REMARKABLY IN THE PETITION OF RIGHT, WHICH YOU HAVE STILED THAT MOST
EXCELLENT LAW. 

"AND THEREFORE WE TRUST UPON SECOND THOUGHTS, BEING THE PARLIAMENT OF
ENGLAND, YOU WILL BE SO FAR FROM BEREAVING US, WHO HAVE NEVER FORFEITED
OUR RIGHT, OF THIS OUR NATIVE RIGHT, AND WAY OF TRIALS BY JURIES, (FOR
WHAT IS DONE UNTO ANY ONE, MAY BE DONE UNTO EVERY ONE), THAT YOU WILL
PRESERVE THEM ENTIRE TO US, AND TO POSTERITY, FROM THE ENCROACHMENTS OF
ANY THAT WOULD INNOVATE UPON THEM  ...  . 

"AND IT IS BELIEVED, THAT  ...  HAD THE CAUSE AT ANY TIME EITHER AT
FIRST OR LAST BEEN ADMITTED TO A TRIAL AT LAW, AND HAD PASSED ANY WAY
BY VERDICT OF TWELVE SWORN MEN:  ALL THE TROUBLE AND INCONVENIENCES
ARISING THEREUPON HAD BEEN PREVENTED:  THE WAY OF DETERMINATION BY
MAJOR VOTES OF COMMITTEES, BEING NEITHER SO CERTAIN NOR SO SATISFACTORY
IN ANY CASE AS BY WAY OF JURIES, THE BENEFIT OF CHALLENGES AND
EXCEPTIONS, AND UNANIMOUS CONSENT, BEING ALL ESSENTIAL PRIVILEGES IN
THE LATTER; WHEREAS COMMITTEES ARE TIED TO NO SUCH RULES, BUT ARE AT
LIBERTY TO BE PRESENT OR ABSENT AT PLEASURE.  BESIDES, JURIES BEING
BIRTHRIGHT, AND THE OTHER BUT NEW AND TEMPORARY, MEN DO NOT, NOR, AS WE
HUMBLY CONCEIVE, EVER WILL ACQUIESCE IN THE ONE AS IN THE OTHER; FROM
WHENCE IT IS NOT ALTOGETHER SO MUCH TO BE WONDERED AT, IF UPON
DISSATISFACTIONS, THERE HAVE BEEN SUCH FREQUENT PRINTING OF MEN'S
CASES, AND DEALINGS OF COMMITTEES, AS THERE HAVE BBEN; AND SUCH HARSH
AND INORDINATE HEATS AND EXPRESSIONS BETWEEN PARTIES INTERESTED, SUCH
SUDDEN AND IMPORTUNATE APPEALS TO YOUR AUTHORITY, BEING INDEED ALL
ALIKE OUT OF THE TRUE ENGLISH ROAD, AND LEADING INTO NOTHING BUT
TROUBLE AND PERPLEXITY, BREEDING HATRED AND ENMITIES BETWEEN WORTHY
FAMILIES, AFFRONTS AND DISGUST BETWEEN PERSONS OF THE SAME PUBLIC
AFFECTION AND INTEREST AND TO THE REJOICING OF NONE BUT PUBLIC
ADVERSARIES.  ALL WHICH, AND MANY MORE INCONVENIENCES, CAN ONLY BE
AVOIDED, BY REFERRING ALL SUCH CASES TO THE USUAL TRIALS AND FINAL
DETERMINATIONS OF LAW."  5 HOWELL'S STATE TRIALS 411-412, STATEMENT OF
JOHN LILBURNE (1653). 

          APPENDIX TO OPINION OF MR. JUSTICE BLACK, DISSENTING. 

RANDOM SELECTION OF STATEMENTS BY THE HOUSE UN-AMERICAN ACTIVITIES
COMMITTEE ON EXPOSURE AND PUNISHMENT OF "SUBVERSIVES." 

"TO INFORM THE AMERICAN PEOPLE OF THE ACTIVITIES OF ANY SUCH
ORGANIZATIONS  ... IS THE REAL PURPOSE OF THE HOUSE COMMITTEE."  "THE
PURPOSE OF THIS COMMITTEE IS THE TASK OF PROTECTING OUR CONSTITUTIONAL
DEMOCRACY BY TURNING THE LIGHT OF PITILESS PUBLICITY ON THESE
ORGANIZATIONS."  H.R. REP. NO. 1476, 76TH CONG., 3D SESS. 1-2, 24. 

"THE VERY FIRST EXPOSURE WHICH OUR COMMITTEE UNDERTOOK IN THE SUMMER
OF 1938 WAS THAT OF THE GERMAN-AMERICAN BUND."  "OTHER ORGANIZATIONS
...  HAVE BEEN GREATLY CRIPPLED  ...  AS A RESULT OF OUR EXPOSURES. 
THE AMERICAN YOUTH CONGRESS ONCE ENJOYED A VERY CONSIDERABLE PRESTIGE
...  .  TODAY MANY OF ITS DISTINGUISHED FORMER SPONSORS REFUSE TO BE
FOUND IN ITS COMPANY  ...  .  WE KEPT THE SPOTLIGHT OF PUBLICITY
FOCUSED UPON THE AMERICAN YOUTH CONGRESS, AND TODAY IT IS CLEAR TO ALL
THAT, IN SPITE OF A DEGREE OF PARTICIPATION IN ITS ACTIVITIES BY MANY
FINE YOUNG PEOPLE, IT WAS NEVER AT ITS CORE ANYTHING LESS THAN A TOOL
OF MOSCOW."  "THIS COMMITTEE IS THE ONLY AGENCY OF GOVERNMENT THAT HAS
THE POWER OF EXPOSURE  ...  .  THERE ARE MANY PHASES OF UN-AMERICAN
ACTIVITIES THAT CANNOT BE REACHED BY LEGISLATION OR ADMINISTRATIVE
ACTION.  WE BELIEVE THAT THE COMMITTEE HAS SHOWN THAT FEARLESS EXPOSURE
...  IS THE  ...  ANSWER."  H.R. REP. NO. 1, 77TH CONG., 1ST SESS. 21
22, 24. 

"OUR INVESTIGATION HAS SHOWN THAT A STEADY BARRAGE AGAINST CONGRESS
COMES  ...  FROM THE NEW REPUBLIC, ONE OF WHOSE EDITORS  ...  WAS
RECENTLY FORCED OUT OF AN $8,000 GOVERNMENT JOB BY THE EXPOSURE OF HIS
COMMUNIST ACTIVITIES."  H.R. REP. NO. 2277, 77TH CONG., 2D SESS. 3. 

"THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES IS EMPOWERED TO
EXPLORE AND EXPOSE ACTIVITIES BY UN-AMERICAN INDIVIDUALS AND
ORGANIZATIONS WHICH, WHILE SOMETIMES BEING LEGAL, ARE NONETHELESS
INIMICAL TO OUR AMERICAN CONCEPTS."  THE COMMITTEE RECOMMENDS THAT
CONGRESS "DISCHARGE  ...  ANY EMPLOYEE OR OFFICIAL OF THE FEDERAL
GOVERNMENT WHOSE LOYALTY TO THE UNITED STATES IS FOUND TO BE IN
DOUBT."  H.R. REP. NO. 2742, 79TH CONG., 2D SESS. 16, 17. 

"INDEX OF PERSONS AND ORGANIZATIONS."  (SIX PAGES OF NAMES FOLLOW.) 
H.R. REP. NO. 2233, 79TH CONG., 2D SESS. III-VIII. 

"EARLY IN 1947 THE COMMITTEE ADOPTED THE FOLLOWING EIGHT POINT
PROGRAM  ...  . 

"1.  TO EXPOSE AND FERRET OUT THE COMMUNISTS AND COMMUNIST
SYMPATHIZERS IN THE FEDERAL GOVERNMENT. 

"2.  TO SPOTLIGHT THE SPECTACLE OF  ...  COMMUNISTS  ...  IN AMERICAN
LABOR." 

"IN A SENSE THE STORM OF OPPOSITION TO THE ACTIVITIES OF THE
COMMITTEE IS A TRIBUTE TO ITS ACHIEVEMENTS IN THE FIELD OF EXPOSURE
...  ."  REPORT OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES TO THE
UNITED STATES HOUSE OF REPRESENTATIVES, 80TH CONG., 2D SESS., DEC. 31,
1948, 2, 3 (COMMITTEE PRINT).    "THE COMMITTEE WOULD LIKE TO REMIND
THE CONGRESS THAT ITS WORK IS PART OF AN 11-YEAR CONTINUITY OF EFFORT
THAT BEGAN  ...  IN AUGUST 1938.  THE COMMITTEE WOULD ALSO LIKE TO
RECALL THAT AT NO TIME IN THOSE 11 YEARS HAS IT EVER WAVERED FROM A
RELENTLESS PURSUIT AND EXPOSURE."  "IN THE COURSE OF ITS INVESTIGATIONS
...  THE COMMITTEE HAS MADE AVAILABLE A LARGE, COMPLETELY INDEXED, AND
READILY ACCESSIBLE REFERENCE COLLECTION OF LISTS OF SIGNERS OF
COMMUNIST PARTY ELECTION PETITIONS."  H.R. REP. NO. 1950, 81ST CONG.,
2D SESS.  15, 19. 

"TO CONDUCT THE EXPOSE  ...  IT WAS NECESSARY FOR THE INVESTIGATIVE
STAFF TO INTERVIEW OVER 100 PERSONS  ...  .    "THE SAME TEDIOUS
INVESTIGATION OF DETAILS WAS NECESSARY PRIOR TO THE SUCCESSFUL EXPOSURE
...  IN THE TERRITORY OF HAWAII."  "AS A RESULT OF THE INVESTIGATION
AND HEARINGS HELD BY THE COMMITTEE, DOLIVET'S CONTRACT WITH THE UNITED
NATIONS HAS NOT BEEN RENEWED, AND IT IS THE COMMITTEE'S UNDERSTANDING
THAT HE WAS REMOVED FROM EDITORSHIP OF THE UNITED NATIONS WORLD."  H.R.
REP. NO. 3249, 81ST CONG., 2D SESS. 4, 5. 

"DURING 1951 THE COMMITTEE'S HEARINGS DISCLOSED THE POSITIVE
IDENTIFICATION OF MORE INDIVIDUALS ...  THAN DURING ANY PRECEDING
YEAR."  "IF COMMUNISM IN HOLLYWOOD IS NOW MYTHICAL, IT IS ONLY BECAUSE
THIS COMMITTEE CONDUCTED THREE INVESTIGATIONS TO BRING IT ABOUT.  THE
INDUSTRY ITSELF CERTAINLY DID NOT ACCOMPLISH THIS."  "THE COMMITTEE'S
INVESTIGATION  ...  WAS CONCERNED ALMOST ENTIRELY WITH THE PROBLEM OF
EXPOSURE OF THE ACTUAL MEMBERS OF THE COMMUNIST PARTY AND DID NOT DEAL,
EXCEPT IN A FEW INSTANCES, WITH  ...  FELLOW TRAVELERS."  "ON THE
QUESTION OF FELLOW TRAVELERS, SUFFICE IT TO SAY  ...  'THE TIME HAS
COME NOW WHEN EVEN THE FELLOW TRAVELER MUST GET OUT.'"  "DR. STRUIK WAS
IDENTIFIED AS A COMMUNIST TEACHER  ...  .  NEVERTHELESS, HE WAS
PERMITTED TO TEACH  ... UNTIL THIS YEAR."  "WITH INDIVIDUALS LIKE  ...
STRUIK  ...  TEACHING IN OUR LEADING UNIVERSITIES, YOUR COMMITTEE
WONDERS WHO THE PROFESSOR STRUIKS WERE  ...  WHO LED ALGER HISS ALONG
THE ROAD OF COMMUNISM."  H.R. REP. NO. 2431, 82D CONG., 2D SESS.  6, 8
9, 16-17. 

"IN THIS ANNUAL REPORT, THE COMMITTEE FEELS THAT THE CONGRESS AND THE
AMERICAN PEOPLE WILL HAVE A MUCH CLEARER AND FULLER PICTURE  ...  BY
HAVING SET FORTH THE NAMES AND, WHERE POSSIBLE, THE POSITIONS OCCUPIED
BY INDIVIDUALS WHO HAVE BEEN IDENTIFIED AS COMMUNISTS, OR FORMER
COMMUNISTS, DURING THE PAST YEAR."  "THE COMMITTEE CONSIDERS THE
FAILURE OF CERTAIN TRADE-UNIONISTS TO RID THEMSELVES OF COMMUNISTS TO
BE A NATIONAL DISGRACE."  "THE FOLLOWING PERSONS WERE IDENTIFIED." 
(APPROXIMATELY FIFTY PAGES OF NAMES FOLLOW.)  H.R. REP. NO. 2516, 82D
CONG., 2D SESS. 6-7, 12-27, 28-34, 36-40, 41-56, 58-67 (SIMILAR LISTS
CAN BE FOUND IN VARIOUS OTHER REPORTS). 

"THE FOCAL POINT OF THE INVESTIGATION INTO THE GENERAL AREA OF
EDUCATION WAS TO THE INDIVIDUAL WHO HAD BEEN IDENTIFIED."  "THE
QUESTION HAS BEEN ASKED AS TO WHAT PURPOSE IS SERVED BY THE DISCLOSURE
OF THE NAMES OF INDIVIDUALS WHO MAY LONG AGO HAVE LEFT THE
CONSPIRACY."  "THE COMMITTEE HAS NO WAY OF KNOWING THE STATUS OF HIS
MEMBERSHIP AT PRESENT UNTIL HE IS PLACED UNDER OATH AND THE INFORMATION
IS SOUGHT TO BE ELICITED."  H.R. REP.  NO. 1192, 83D CONG., 2D SESS.
1,7. 

MR. JUSTICE BRENNAN, DISSENTING. 

I WOULD REVERSE THIS CONVICTION.  IT IS SUFFICIENT THAT I STATE MY
COMPLETE AGREEMENT WITH MY BROTHER BLACK THAT NO PURPOSE FOR THE
INVESTIGATION OF BARENBLATT IS REVEALED BY THE RECORD EXCEPT EXPOSURE
PURELY FOR THE SAKE OF EXPOSURE.  THIS IS NOT A PURPOSE TO WHICH
BARENBLATT'S RIGHTS UNDER THE FIRST AMENDMENT CAN VALIDLY BE
SUBORDINATED.  AN INVESTIGATION IN WHICH THE PROCESSES OF LAWMAKING AND
LAW-EVALUATING ARE SUBMERGED ENTIRELY IN EXPOSURE OF INDIVIDUAL
BEHAVIOR - IN ADJUDICATION, OF A SORT, THROUGH THE EXPOSURE PROCESS -
IS OUTSIDE THE CONSTITUTIONAL PALE OF CONGRESSIONAL INQUIRY.  WATKINS
V. UNITED STATES, 354 U.S. 178, 187, 200; SEE ALSO SWEEZY V. NEW
HAMPSHIRE, 354 U.S. 234; NAACP V. ALABAMA, 357 U.S. 449; UPHAUS V.
WYMAN, ANTE, P. 82 (DISSENTING OPINION). 
..END :



HARRISON V. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
360 U.S. 167 


NO. 127.  ARGUED MARCH 23-24, 1959.  - DECIDED JUNE 8, 1959.  - 159 F.
SUPP. 503, JUDGMENT VACATED AND CAUSE REMANDED. 


APPELLEES SUED IN A THREE-JUDGE FEDERAL DISTRICT COURT FOR A
DECLARATORY JUDGMENT THAT FIVE VIRGINIA STATUTES ENACTED IN 1956 AND
NEVER CONSTRUED BY THE VIRGINIA COURTS WERE UNCONSTITUTIONAL AND TO
ENJOIN THEIR ENFORCEMENT.  APPELLANTS MOVED TO DISMISS THE ACTION ON
THE GROUND THAT THE DISTRICT COURT SHOULD NOT EXERCISE ITS JURISDICTION
TO ENJOIN THE ENFORCEMENT OF STATE STATUTES THAT HAVE NOT BEEN
AUTHORITATIVELY CONSTRUED BY THE STATE COURTS.  THE DISTRICT COURT
FOUND TWO OF THE STATUTES VAGUE AND AMBIGUOUS AND WITHHELD JUDGMENT ON
THEM, RETAINING JURISDICTION, PENDING CONSTRUCTION BY THE STATE COURTS;
BUT IT DECLARED THE OTHER THREE UNCONSTITUTIONAL AND ENJOINED THEIR
ENFORCEMENT AGAINST APPELLEES.  HELD:  AS TO THE THREE STATUTES WHICH
IT HELD UNCONSTITUTIONAL, THE DISTRICT COURT SHOULD HAVE ABSTAINED FROM
DECIDING THE MERITS OF THE ISSUES TENDERED TO IT AND SHOULD HAVE
RETAINED JURISDICTION UNTIL THE VIRGINIA COURTS HAD BEEN AFFORDED A
REASONABLE OPPORTUNITY TO CONSTRUE THEM.  PP. 168-179. 

(A)  THE FEDERAL COURTS SHOULD NOT ADJUDICATE THE CONSTITUTIONALITY
OF STATE ENACTMENTS FAIRLY OPEN TO INTERPRETATION UNTIL THE STATE
COURTS HAVE BEEN AFFORDED A REASONABLE OPPORTUNITY TO PASS UPON THEM. 
PP. 176-177. 

(B)  THE THREE STATUTES HERE INVOLVED LEAVE REASONABLE ROOM FOR A
CONSTRUCTION BY THE VIRGINIA COURTS WHICH MIGHT AVOID IN WHOLE OR IN
PART THE NECESSITY FOR FEDERAL CONSTITUTIONAL ADJUDICATION, OR AT LEAST
MATERIALLY CHANGE THE NATURE OF THE PROBLEM.  PP. 177-178. 

(C)  THESE ENACTMENTS SHOULD BE EXPOSED TO STATE CONSTRUCTION OR
LIMITING INTERPRETATION BEFORE THE FEDERAL COURTS ARE ASKED TO DECIDE
UPON THEIR CONSTITUTIONALITY, SO THAT FEDERAL JUDGMENT WILL BE BASED ON
SOMETHING THAT IS A COMPLETE PRODUCT OF THE STATE, EACH ENACTMENT AS
PHRASED BY ITS LEGISLATURE AND AS CONSTRUED BY ITS HIGHEST COURT.  P.
178. 

(D)  APPELLANTS HAVING REPRESENTED TO THIS COURT THAT THEY WOULD
NEVER PROSECUTE APPELLEES FOR CONDUCT ENGAGED IN DURING THE PENDENCY OF
THESE PROCEEDINGS, THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND
THE CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFORD APPELLEES A
REASONABLE OPPORTUNITY TO BRING APPROPRIATE PROCEEDINGS IN THE VIRGINIA
COURTS, MEANWHILE RETAINING ITS OWN JURISDICTION OF THE CASE, AND FOR
FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT.  P.
179. 

HARRISON, ATTORNEY GENERAL OF VIRGINIA, ET AL. V. NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE A THREE-JUDGE DISTRICT COURT WAS CONVENED PURSUANT TO 28
U.S.C. SEC. 2281 TO HEAR FEDERAL CONSTITUTIONAL CHALLENGES AGAINST FIVE
VIRGINIA STATUTES.  IT DECLARED THREE INVALID UNDER THE FOURTEENTH
AMENDMENT, AND PERMANENTLY ENJOINED THE APPELLANTS FROM ENFORCING THEM
AGAINST THE APPELLEES; THE OTHER TWO STATUTES IT FOUND VAGUE AND
AMBIGUOUS AND ACCORDINGLY RETAINED JURISDICTION PENDING A CONSTRUCTION
BY THE STATE COURTS.  159 F. SUPP. 503.  ONLY THE FORMER DISPOSITION
WAS APPEALED.  THE APPEAL RAISES TWO QUESTIONS:  FIRST, WHETHER IN THE
CIRCUMSTANCES OF THIS CASE THE DISTRICT COURT SHOULD HAVE ABSTAINED
FROM A CONSTITUTIONAL ADJUDICATION, RETAINING THE CAUSE WHILE THE
PARTIES, THROUGH APPROPRIATE PROCEEDINGS, AFFORDED THE VIRGINIA COURTS
AN OPPORTUNITY TO CONSTRUE THE THREE STATUTES IN LIGHT OF STATE AND
FEDERAL CONSTITUTIONAL REQUIREMENTS.  SECOND, IF SUCH AN ABSTENTION WAS
NOT CALLED FOR, WHETHER THE DISTRICT COURT'S CONSTITUTIONAL HOLDINGS
WERE CORRECT.  BECAUSE OF OUR VIEWS UPON THE FIRST QUESTION WE DO NOT
REACH THE SECOND. 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP)
AND NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INCORPORATED (FUND),
APPELLEES HEREIN, ARE ORGANIZATIONS ENGAGED IN FURTHERING THE RIGHTS OF
COLORED CITIZENS.  BOTH ARE MEMBERSHIP CORPORATIONS ORGANIZED UNDER THE
LAWS OF NEW YORK, AND HAVE REGISTERED UNDER THE LAWS OF VIRGINIA AS
FOREIGN CORPORATIONS DOING BUSINESS WITHIN THE STATE.  NAACP'S
PRINCIPAL RELEVANT ACTIVITIES IN VIRGINIA ARE APPEARING BEFORE
LEGISLATIVE BODIES AND COMMISSIONS IN SUPPORT OF, OR OPPOSITION TO,
MEASURES AFFECTING THE STATUS OF THE NEGRO RACE WITHIN THE STATE, AND
FURNISHING ASSISTANCE TO NEGROES CONCERNED IN LITIGATION INVOLVING
THEIR CONSTITUTIONAL RIGHTS.  FUND PERFORMS FUNCTIONS SIMILAR TO THOSE
OF NAACP IN THE FIELD OF LITIGATION, BUT IS PRECLUDED BY ITS CHARTER
FROM ATTEMPTING TO INFLUENCE LEGISLATION.  THE REVENUES OF NAACP ARE
DERIVED BOTH FROM MEMBERSHIP DUES AND GENERAL CONTRIBUTIONS, THOSE OF
FUND ENTIRELY FROM CONTRIBUTIONS. 

NAACP AND FUND BROUGHT THIS ACTION AGAINST THE ATTORNEY GENERAL OF
VIRGINIA AND A NUMBER OF OTHER COMMONWEALTH OFFICIALS, APPELLANTS
HEREIN, FOR DECLARATORY AND INJUNCTIVE RELIEF WITH RESPECT TO CHAPTERS
31, 32, 33, 35 AND 36 OF THE ACTS OF THE VIRGINIA ASSEMBLY, PASSED IN
1956.  4 VA. CODE, 1958 SUPP., SECS. 18-349.9 TO 18-349.37; 7 VA. CODE,
1958, SECS. 54-74, 54-78, 54-79.  THE COMPLAINT, ALLEGING IRREPARABLE
INJURY ON ACCOUNT OF THESE ENACTMENTS, SOUGHT A DECLARATION THAT EACH
INFRINGED RIGHTS ASSURED UNDER THE FOURTEENTH AMENDMENT AND AN
INJUNCTION AGAINST ITS ENFORCEMENT.  JURISDICTION WAS PREDICATED UPON
THE CIVIL RIGHTS STATUTES, 42 U.S.C. SECS. 1981, 1983, 28 U.S.C. SEC.
1343, DIVERSITY OF CITIZENSHIP, 28 U.S.C. SEC. 1332, AND THE PRESENCE
OF A FEDERAL QUESTION, 28 U.S.C. SEC. 1331. 

THE ATTORNEY GENERAL AND HIS CODEFENDANTS MOVED TO DISMISS THE ACTION
ON THE GROUND, AMONG OTHERS, THAT THE DISTRICT COURT SHOULD NOT
"EXERCISE ITS JURISDICTION TO ENJOIN THE ENFORCEMENT OF STATE STATUTES
WHICH HAVE NOT BEEN AUTHORITATIVELY CONSTRUED BY THE STATE COURTS." 
THE DISTRICT COURT, RECOGNIZING "THE NECESSITY OF MAINTAINING THE
DELICATE BALANCE BETWEEN STATE AND FEDERAL COURTS UNDER THE CONCEPT OF
SEPARATE SOVEREIGNS," STATED THAT "THE CONSTITUTIONALITY OF STATE
STATUTES REQUIRING SPECIAL COMPETENCE IN THE INTERPRETATION OF LOCAL
LAW SHOULD NOT BE DETERMINED BY FEDERAL COURTS IN ADVANCE OF A
REASONABLE OPPORTUNITY AFFORDED THE PARTIES TO SEEK AN ADJUDICATION BY
THE STATE COURT," BUT CONSIDERED THAT RELIEF SHOULD BE GRANTED WHERE
"THE STATUTE IS FREE FROM AMBIGUITY AND THERE REMAINS NO REASONABLE
INTERPRETATION WHICH WILL RENDER IT CONSTITUTIONAL  ...  ."  159 F.
SUPP., AT 522, 523.  ON THIS BASIS, THE COURT, ONE JUDGE DISSENTING,
HELD CHAPTERS 31, 32, AND 35 UNCONSTITUTIONAL, AND PERMANENTLY ENJOINED
THEIR ENFORCEMENT AGAINST NAACP AND FUND.  CHAPTERS 33 AND 36, ON THE
OTHER HAND, THE COURT UNANIMOUSLY FOUND VAGUE AND AMBIGUOUS.  IT
ACCORDINGLY RETAINED JURISDICTION AS TO THOSE CHAPTERS, WITHOUT
REACHING THEIR CONSTITUTIONALITY, ALLOWING THE COMPLAINING PARTIES A
REASONABLE TIME WITHIN WHICH TO OBTAIN A STATE INTERPRETATION. 

THE COMMONWEALTH DEFENDANTS, PROCEEDING UNDER 28 U.S.C. SEC. 1253,
APPEALED TO THIS COURT THE LOWER COURT'S DISPOSITION OF CHAPTERS 31,
32, AND 35.  WE NOTED PROBABLE JURISDICTION.  358 U.S. 807.  NAACP AND
FUND DID NOT APPEAL THE DISPOSITION OF CHAPTERS 33 AND 36. 

THE THREE VIRGINIA STATUTES BEFORE US ARE LENGTHY, DETAILED, AND
SWEEPING.  CHAPTERS 31 AND 32 ARE REGISTRATION STATUTES.  CHAPTER 31
DEALS WITH THE RENDERING OF FINANCIAL ASSISTANCE IN LITIGATION.  IT
PROSCRIBES THE PUBLIC SOLICITATION OF FUNDS, AND THE EXPENDITURE OF
FUNDS FROM WHATEVER SOURCE DERIVED, FOR THE COMMENCEMENT OR FURTHER
PROSECUTION OF AN "ORIGINAL PROCEEDING," BY ANY PERSON, BROADLY DEFINED
TO INCLUDE CORPORATIONS AND OTHER ENTITIES, WHICH IS NEITHER A PARTY
NOR POSSESSED OF A "PECUNIARY RIGHT OR LIABILITY" IN SUCH PROCEEDING,
UNLESS A DETAILED ANNUAL FILING IS MADE WITH THE STATE CORPORATION
COMMISSION.  IF SUCH PERSON IS A CORPORATION, THE FILING MUST INCLUDE
AMONG OTHER THINGS, (1) CERTIFIED COPIES OF ITS CHARTER AND BY-LAWS;
(2) "A CERTIFIED LIST OF THE NAMES AND ADDRESSES OF THE OFFICERS,
DIRECTORS, STOCKHOLDERS, MEMBERS, AGENTS AND EMPLOYEES OR OTHER PERSONS
ACTING FOR OR IN ITS BEHALF;" (3) A CERTIFIED STATEMENT OF THE SOURCES
OF ITS INCOME, HOWEVER DERIVED, INCLUDING THE NAMES AND ADDRESSES OF
CONTRIBUTORS OR DONORS IF REQUIRED BY THE COMMISSION; (4) A DETAILED
CERTIFIED STATEMENT OF THE CORPORATION'S EXPENDITURES FOR THE PRECEDING
YEAR, THE OBJECTS THEREOF, AND WHATEVER OTHER INFORMATION RELATIVE
THERETO MAY BE REQUIRED BY THE COMMISSION; AND (5) A CERTIFIED
STATEMENT OF THE "COUNTIES AND CITIES IN WHICH IT PROPOSES TO OR DOES
FINANCE OR MAINTAIN LITIGATION TO WHICH IT IS NOT A PARTY." 
CORRESPONDINGLY BROAD DISCLOSURES ARE REQUIRED OF INDIVIDUALS WHO FALL
WITHIN THE STATUTORY PROSCRIPTION. 

VIOLATION OF THIS CHAPTER IS PUNISHABLE AS A MISDEMEANOR FOR
INDIVIDUALS, AND BY A FINE OF NOT MORE THAN $10,000 FOR CORPORATIONS,
PLUS A MANDATORY DENIAL OR REVOCATION OF AUTHORITY TO DO BUSINESS
WITHIN THE STATE IN THE CASE OF A FOREIGN CORPORATION.  AN INDIVIDUAL
"ACTING AS AN AGENT OR EMPLOYEE" OF A CORPORATION OR OTHER ENTITY WITH
RESPECT TO ACTIVITY VIOLATIVE OF THE CHAPTER IS DEEMED GUILTY OF A
MISDEMEANOR.  AND DIRECTORS, OFFICERS, AND "THOSE PERSONS RESPONSIBLE
FOR THE MANAGEMENT OR CONTROL OF THE AFFAIRS" OF A CORPORATION OR OTHER
ENTITY ARE MADE JOINTLY AND SEVERALLY LIABLE FOR WHATEVER FINES MIGHT
BE IMPOSED ON IT. 

CHAPTER 32 DEALS WITH ACTIVITIES RELATING TO THE PASSAGE OF RACIAL
LEGISLATION, WITH ADVOCACY OF "RACIAL INTEGRATION OR SEGREGATION," AND
ALSO WITH THE RAISING AND EXPENDITURE OF FUNDS IN CONNECTION WITH
RACIAL LITIGATION.  DECLARING THAT THE "CONTINUED HARMONIOUS RELATIONS
BETWEEN THE RACES ARE  ...  ESSENTIAL TO THE WELFARE, HEALTH AND SAFETY
OF THE PEOPLE OF VIRGINIA," THE CHAPTER FINDS IT "VITAL TO THE PUBLIC
INTEREST" THAT REGISTRATION BE MADE WITH THE STATE CORPORATION
COMMISSION BY "PERSONS, FIRMS, PARTNERSHIPS, CORPORATIONS AND
ASSOCIATIONS WHOSE ACTIVITIES ARE CAUSING OR MAY CAUSE INTERRACIAL
TENSION AND UNREST."  SPECIFICALLY, UNDER SEC. 2 OF THIS CHAPTER,
ANNUAL FILINGS ARE REQUIRED OF: 

"EVERY PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION, WHETHER
BY OR THROUGH ITS AGENTS, SERVANTS, EMPLOYEES, OFFICERS, OR VOLUNTARY
WORKERS OR ASSOCIATES, WHO OR WHICH ENGAGES AS ONE OF ITS PRINCIPAL
FUNCTIONS OR ACTIVITIES IN THE PROMOTING OR OPPOSING IN ANY MANNER THE
PASSAGE OF LEGISLATION BY THE GENERAL ASSEMBLY IN BEHALF OF ANY RACE OR
COLOR, OR WHO OR WHICH HAS AS ONE OF ITS PRINCIPAL FUNCTIONS OR
ACTIVITIES THE ADVOCATING OF RACIAL INTEGRATION OR SEGREGATION OR WHOSE
ACTIVITIES CAUSE OR TEND TO CAUSE RACIAL CONFLICTS OR VIOLENCE, OR WHO
OR WHICH IS ENGAGED OR ENGAGES IN RAISING OR EXPENDING FUNDS FOR THE
EMPLOYMENT OF COUNSEL OR PAYMENT OF COSTS IN CONNECTION WITH LITIGATION
IN BEHALF OF ANY RACE OR COLOR, IN THIS STATE  ...  ." 

THE EXTENT OF SUCH FILING IS COMPARABLE TO THAT REQUIRED BY CHAPTER
31.  THE INFORMATION SO FURNISHED IS A MATTER OF PUBLIC RECORD, TO "BE
OPEN TO THE INSPECTION OF ANY CITIZEN AT ANY TIME DURING THE REGULAR
BUSINESS HOURS OF" THE STATE CORPORATION COMMISSION. 

FAILURE TO REGISTER SUBJECTS INDIVIDUALS TO PUNISHMENT AS FOR A
MISDEMEANOR, AND CORPORATIONS TO A FINE NOT EXCEEDING $10,000.  LIKE
CHAPTER 31, CHAPTER 32 ALSO MAKES "RESPONSIBLE" PERSONS LIABLE JOINTLY
AND SEVERALLY FOR CORPORATE FINES.  FURTHER, "EACH DAY'S FAILURE TO
REGISTER AND FILE THE INFORMATION REQUIRED  ...  SHALL CONSTITUTE A
SEPARATE OFFENSE AND BE PUNISHED AS SUCH."  THE CHAPTER IS NOT
APPLICABLE TO PERSONS OR ORGANIZATIONS WHICH CARRY ON THE PROSCRIBED
ACTIVITIES THROUGH MATTER WHICH MAY QUALIFY AS SECOND-CLASS MAIL IN THE
UNITED STATES MAILS, OR BY RADIO OR TELEVISION, NOR TO PERSONS OR
ORGANIZATIONS ACTING IN CONNECTION WITH ANY POLITICAL CAMPAIGN. 

CHAPTER 35 IS A "BARRATRY" STATUTE.  BARRATRY IS DEFINED AS "THE
OFFENSE OF STIRRING UP LITIGATION."  A "BARRATOR" IS THUS A PERSON OR
ORGANIZATION WHICH "STIRS UP LITIGATION."  STIRRING UP LITIGATION MEANS
"INSTIGATING," WHICH IN TURN "MEANS BRINGING IT ABOUT THAT ALL OR PART
OF THE EXPENSES OF THE LITIGATION ARE PAID BY THE BARRATOR," OR BY
THOSE, OTHER THAN THE PLAINTIFFS, ACTING IN CONCERT WITH HIM, "UNLESS
THE INSTIGATION IS JUSTIFIED."  AN INSTIGATION IS "JUSTIFIED" WHEN "THE
INSTIGATOR IS RELATED BY BLOOD OR MARRIAGE TO THE PLAINTIFF WHOM HE
INSTIGATES, OR  ...  IS ENTITLED BY LAW TO SHARE WITH THE PLAINTIFF IN
MONEY OR PROPERTY THAT IS THE SUBJECT OF THE LITIGATION OR ...  HAS A
DIRECT INTEREST ("PERSONAL RIGHT OR A PECUNIARY RIGHT OR LIABILITY") IN
THE SUBJECT MATTER OF THE LITIGATION OR OCCUPIES A POSITION OF TRUST IN
RELATION TO THE PLAINTIFF; OR  ...  IS ACTING ON BEHALF OF A DULY
CONSTITUTED LEGAL AID SOCIETY APPROVED BY THE VIRGINIA STATE BAR WHICH
OFFERS ADVICE OR ASSISTANCE IN ALL KINDS OF LEGAL MATTERS TO ALL
MEMBERS OF THE PUBLIC WHO COME TO IT FOR ADVICE OR ASSISTANCE AND ARE
UNABLE BECAUSE OF POVERTY TO PAY LEGAL FEES." 

INDIVIDUALS GUILTY OF BARRATRY AS DEFNIED IN THE CHAPTER ARE
PUNISHABLE AS FOR A MISDEMEANOR AND "SHALL" HAVE THEIR LICENSES "TO
PRACTICE LAW OR ANY OTHER PROFESSION  ...  REVOKED FOR SUCH PERIOD AS
PROVIDED BY LAW."  CORPORATIONS ARE SUBJECT TO A FINE OF NOT MORE THAN
$10,000 AND, IF THEY ARE FOREIGN, MANDATORY REVOCATION OF THEIR
AUTHORITY TO DO BUSINESS WITHIN THE STATES.  MOREOVER, A "PERSON WHO
AIDS AND ABETS A BARRATOR BY GIVING MONEY OR RENDERING SERVICES TO OR
FOR THE USE OR BENEFIT OF THE BARRATOR FOR COMMITTING BARRATRY SHALL BE
GUILTY OF BARRATRY AND PUNISHED  ...  ."  A HOST OF EXCEPTIONS TO WHICH
THE CHAPTER IS NOT APPLICABLE IS PROVIDED; (FN1) NONE OF THESE HAS THUS
FAR BEEN ASSERTED TO INCLUDE, OR TO BE CAPABLE OF INCLUDING,
APPELLEES. 

THE MAJORITY BELOW HELD CHAPTERS 31 AND 32 (FN2) UNCONSTITUTIONAL ON
SIMILAR GROUNDS, CENTERING ITS TREATMENT OF BOTH AROUND SEC. 2 OF
CHAPTER 32, THE MATERIAL PROVISIONS OF WHICH HAVE ALREADY BEEN SET
FORTH, P. 172, SUPRA.  IN ESSENCE SEC. 2 WAS FOUND TO INFRINGE RIGHTS
ASSURED UNDER THE FOURTEENTH AMENDMENT, IN THAT, TAKEN IN CONJUNCTION
WITH THE REGISTRATION REQUIREMENTS OF THE STATUTE, (1) THE CLAUSE
RELATING TO THE PROMOTING OR OPPOSING OF RACIAL LEGISLATION INVADED
RIGHTS OF FREE SPEECH BECAUSE IT WAS NOT RESTRICTED TO LOBBYING
ACTIVITIES; (FN3) (2) THE CLAUSE DIRECTED AT ADVOCACY OF RACIAL
"INTEGRATION OR SEGREGATION" HAD THE SAME INFIRMITY BECAUSE IT WAS NOT
SUPPORTED BY A COMPELLING STATE INTEREST OR SOME CLEAR AND PRESENT
DANGER; (FN4) (3) THE CLAUSE REFERRING TO ACTIVITIES CAUSING OR TENDING
TO CAUSE RACIAL CONFLICTS OR VIOLENCE WAS TOO VAGUE AND INDEFINITE TO
SATISFY CONSTITUTIONAL REQUIREMENTS; (FN5) AND (4) THE CLAUSE AIMED AT
THE RAISING AND EXPENDING OF FUNDS IN CONNECTION WITH RACIAL LITIGATION
UNDULY BURDENED THE RIGHT OF ACCESS TO THE COURTS, AND DID NOT SERVE AN
INTEREST WHICH COULD SUPPORT A DISCLOSURE AS BROAD AS THE ONE
DEMANDED.   (FN6) 

CHAPTER 35, THE "BARRATRY" STATUTE, WAS HELD TO OFFEND DUE PROCESS,
IN THAT IT WAS FOUND TO BE AIMED NOT AT THE LEGITIMATE REGULATION OF
THE PRACTICE OF LAW BUT AT PREVENTING NAACP AND FUND FROM CONTINUING
"THEIR LEGAL OPERATIONS."  IN ADDITION, THE COURT HELD THE CHAPTER TO
VIOLATE EQUAL PROTECTION BY UNJUSTIFIABLY DISCRIMINATING BETWEEN THE
RACIAL LITIGATION ACTIVITIES OF THE APPELLEES AND THE GENERAL
LITIGATION EFFORTS OF "APPROVED" LEGAL AID SOCIETIES. 

THESE CONSTITUTIONAL HOLDINGS WERE MADE IN THE CONTEXT OF FINDINGS
THAT CHAPTERS 31, 32, AND 35, AS WELL AS CHAPTERS 33 AND 36 NOT
PRESENTLY BEFORE US, WERE PASSED BY THE VIRGINIA LEGISLATURE "TO
NULLIFY AS FAR AS POSSIBLE THE EFFECT OF THE DECISION OF THE SUPREME
COURT IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483  ...  AS PARTS OF
THE GENERAL PLAN OF MASSIVE RESISTANCE TO THE INTEGRATION OF SCHOOLS OF
THE STATE UNDER THE SUPREME COURT'S DECREES."  159 F. SUPP., AT 511,
515.  IN THE VIEW WE TAKE OF THIS CASE WE DO NOT REACH APPELLANTS'
OBJECTIONS TO THESE FINDINGS.    ACCORDING EVERY CONSIDERATION TO THE
OPINION OF THE MAJORITY BELOW, WE ARE NEVERTHELESS OF THE VIEW THAT THE
DISTRICT COURT SHOULD HAVE ABSTAINED FROM DECIDING THE MERITS OF THE
ISSUES TENDERED IT, SO AS TO AFFORD THE VIRGINIA COURTS A REASONABLE
OPPORTUNITY TO CONSTRUE THE THREE STATUTES IN QUESTION.  IN OTHER
WORDS, WE THINK THAT THE DISTRICT COURT IN DEALING WITH CHAPTERS 31,
32, AND 35 SHOULD HAVE FOLLOWED THE SAME COURSE THAT IT DID WITH
RESPECT TO CHAPTERS 33 AND 36. 

THIS NOW WELL-ESTABLISHED PROCEDURE IS AIMED AT THE AVOIDANCE OF
UNNECESSARY INTERFERENCE BY THE FEDERAL COURTS WITH PROPER AND VALIDLY
ADMINISTERED STATE CONCERNS, A COURSE SO ESSENTIAL TO THE BALANCED
WORKING OF OUR FEDERAL SYSTEM.  TO MINIMIZE THE POSSIBILITY OF SUCH
INTERFERENCE A "SCRUPULOUS REGARD FOR THE RIGHTFUL INDEPENDENCE OF
STATE GOVERNMENTS  ...  SHOULD AT ALL TIMES ACTUATE THE FEDERAL
COURTS," MATTHEWS V. RODGERS, 284 U.S. 521, 525, AS THEIR "CONTRIBUTION
...  IN FURTHERING THE HARMONIOUS RELATION BETWEEN STATE AND FEDERAL
AUTHORITY  ...  ."  RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496, 501. 
IN THE SERVICE OF THIS DOCTRINE, WHICH THIS COURT HAS APPLIED IN MANY
DIFFERENT CONTEXTS, NO PRINCIPLE HAS FOUND MORE CONSISTENT OR CLEAR
EXPRESSION THAN THAT THE FEDERAL COURTS SHOULD NOT ADJUDICATE THE
CONSTITUTIONALITY OF STATE ENACTMENTS FAIRLY OPEN TO INTERPRETATION
UNTIL THE STATE COURTS HAVE BEEN AFFORDED A REASONABLE OPPORTUNITY TO
PASS UPON THEM.   SEE, E.G., RAILROAD COMM'N V. PULLMAN CO., SUPRA;
CHICAGO V. FIELDCREST DAIRIES, INC., 316 U.S. 168; SPECTOR MOTOR
SERVICE, INC., V. MCLAUGHLIN, 323 U.S. 101; AMERICAN FEDERATION OF
LABOR V. WATSON, 327 U.S. 582; SHIPMAN V. DUPRE, 339 U.S. 321;
ALBERTSON V. MILLARD, 345 U.S. 242; GOVERNMENT & CIVIC EMPLOYEES V.
WINDSOR, 353 U.S. 364.  THIS PRINCIPLE DOES NOT, OF COURSE, INVOLVE THE
ABDICATION OF FEDERAL JURISDICTION, BUT ONLY THE POSTPONEMENT OF ITS
EXERCISE; IT SERVES THE POLICY OF COMITY INHERENT IN THE DOCTRINE OF
ABSTENTION; AND IT SPARES THE FEDERAL COURTS OF UNNECESSARY
CONSTITUTIONAL ADJUDICATION.  SEE CHICAGO V. FIELDCREST DAIRIES, INC.,
SUPRA, AT 172-173. 

THE PRESENT CASE, IN OUR VIEW, IS ONE WHICH CALLS FOR THE APPLICATION
OF THIS PRINCIPLE, SINCE WE ARE UNABLE TO AGREE THAT THE TERMS OF THESE
THREE STATUTES LEAVE NO REASONABLE ROOM FOR A CONSTRUCTION BY THE
VIRGINIA COURTS WHICH MIGHT AVOID IN WHOLE OR IN PART THE NECESSITY FOR
FEDERAL CONSTITUTIONAL ADJUDICATION, OR AT LEAST MATERIALLY CHANGE THE
NATURE OF THE PROBLEM. 

IT CERTAINLY CANNOT BE SAID THAT CHAPTER 35 DOES NOT REQUIRE A
CONSTRUCTION BY THE STATE COURTS.  AS APPELLANTS ASSERTED HERE AND IN
THE COURT BELOW, THE CHAPTER MIGHT WELL BE READ AS REQUIRING A
"STIRRING UP" OF LITIGATION IN THE CONVENTIONAL COMMON-LAW SENSE, IN
ADDITION TO THE "UNJUSTIFIED" PAYMENT OF LITIGATION EXPENSES.  WERE IT
TO BE SO READ, THE STATUTE MIGHT THEN NOT EVEN APPLY TO THESE APPELLEES
SINCE THE LOWER COURT FOUND THE EVIDENCE "UNCONTRADICTED THAT THE
INITIAL STEPS WHICH HAVE LED TO THE INSTITUTION AND PROSECUTION OF
RACIAL SUITS IN VIRGINIA WITH THE ASSISTANCE OF THE ASSOCIATION AND THE
FUND HAVE NOT BEEN TAKEN UNTIL THE PROSPECTIVE PLAINTIFFS MADE
APPLICATION TO ONE OR THE OTHER OF THE CORPORATIONS FOR HELP."  159 F.
SUPP., AT 533.  FURTHER THE "PERSONAL RIGHT" COMPONENT OF "DIRECT
INTEREST" IN THE STATUTORY DEFINITION OF "JUSTIFIED" INSTIGATION (SEE
P. 173, SUPRA) MIGHT LEND ITSELF TO A CONSTRUCTION WHICH WOULD EMBRACE
NONPARTY NEGRO CONTRIBUTORS TO LITIGATION EXPENSE, INCLUDING NAACP
BECAUSE OF THE RELATIONSHIP OF THAT ORGANIZATION TO ITS MEMBERS.   CF.
NAACP V. ALABAMA, 357 U.S. 449. 

THE POSSIBILITY OF LIMITING INTERPRETATION, CHARACTERISTIC OF
CONSTITUTIONAL ADJUDICATION, ALSO CANNOT BE IGNORED.  GOVERNMENT &
CIVIC EMPLOYEES V. WINDSOR, SUPRA.  THE "ADVOCACY" CLAUSE OF CHAPTER
32, FOR EXAMPLE, MIGHT BE CONSTRUED AS REACHING ONLY THAT DIRECTED AT
THE INCITEMENT OF VIOLENCE.  CF. YATES V. UNITED STATES, 354 U.S. 298. 
SIMILAR CONSTRUCTION MIGHT BE EMPLOYED WITH RESPECT TO THE CLAUSE IN
THAT CHAPTER RELATING TO THE INFLUENCING OF LEGISLATION "IN ANY
MANNER," CF. UNITED STATES V. HARRISS, SUPRA; UNITED STATES V. RUMELY,
345 U.S. 41.  AND, IN CONNECTION WITH THESE AND THE MEMBERSHIP AND
CONTRIBUTOR LIST REQUIREMENTS OF CHAPTERS 31 AND 32, CF. NAACP V.
ALABAMA, SUPRA, WE NOTE THAT CHAPTER 32 CONTAINS A SEPARABILITY CLAUSE,
AND THAT THE SUPREME COURT OF APPEALS OF VIRGINIA TREATS LEGISLATIVE
ACTS AS SEPARABLE, WHERE POSSIBLE, EVEN IN THE ABSENCE OF SUCH AN
EXPRESS PROVISION.  SEE WOOLFOLK V. DRIVER, 186 VA. 174, 41 S.E.2D
463. 

WE DO NOT INTIMATE THE SLIGHTEST VIEW AS TO WHAT EFFECT ANY SUCH
DETERMINATIONS MIGHT HAVE UPON THE VALIDITY OF THESE STATUTES.  ALL WE
HOLD IS THAT THESE ENACTMENTS SHOULD BE EXPOSED TO STATE CONSTRUCTION
OR LIMITING INTERPRETATION BEFORE THE FEDERAL COURTS ARE ASKED TO
DECIDE UPON THEIR CONSTITUTIONALITY, SO THAT FEDERAL JUDGMENT WILL BE
BASED ON SOMETHING THAT IS A COMPLETE PRODUCT OF THE STATE, THE
ENACTMENT AS PHRASED BY ITS LEGISLATURE AND AS CONSTRUED BY ITS HIGHEST
COURT.  THE VIRGINIA DECLARATORY JUDGMENT PROCEDURE, 2 VA. CODE, 1950,
SECS. 8-578 TO 8-585, WHICH THE APPELLEES ARE NOW PURSUING WITH
REFERENCE TO CHAPTERS 33 AND 36, ALSO PROVIDES AN EXPEDITIOUS AVENUE
HERE.  AND OF COURSE WE SHALL NOT ASSUME THAT THE VIRGINIA COURTS WILL
NOT DO THEIR FULL DUTY IN JUDGING THESE STATUTES IN LIGHT OF STATE AND
FEDERAL CONSTITUTIONAL REQUIREMENTS. 

BECAUSE OF ITS FINDINGS, AMPLY SUPPORTED BY THE EVIDENCE, THAT THE
EXISTENCE AND THREATENED ENFORCEMENT OF THESE STATUTES WORKED GREAT AND
IMMEDIATE IRREPARABLE INJURY ON APPELLEES, THE DISTRICT COURT'S
ABSTENTION WITH RESPECT TO CHAPTERS 33 AND 36 PROCEEDED ON THE
ASSUMPTION "THAT THE DEFENDANTS WILL CONTINUE TO COOPERATE, AS THEY
HAVE IN THE PAST, IN WITHHOLDING ACTION UNDER THE AUTHORITY OF THE
STATUTES UNTIL A FINAL DECISION IS REACHED  ...  ."  159 F. SUPP., AT
534.  IN THIS COURT COUNSEL FOR THE APPELLANTS HAS GIVEN SIMILAR
ASSURANCES WITH RESPECT TO THE THREE STATUTES PRESENTLY BEFORE US,
ASSURANCES WHICH WE UNDERSTAND EMBRACE ALSO THE INTENTION OF THESE
APPELLANTS NEVER TO PROCEED AGAINST APPELLEES UNDER ANY OF THESE
ENACTMENTS WITH RESPECT TO ACTIVITIES ENGAGED IN DURING THE FULL
PENDENCY OF THIS LITIGATION.  WHILE THERE IS NO REASON TO SUPPOSE THAT
SUCH ASSURANCES WILL NOT BE HONORED BY THESE OR OTHER VIRGINIA
OFFICIALS NOT PARTIES TO THIS LITIGATION, THE DISTRICT COURT OF COURSE
POSSESSES AMPLE AUTHORITY IN THIS ACTION, OR IN SUCH SUPPLEMENTAL
PROCEEDINGS AS MAY BE INITIATED, TO PROTECT THE APPELLEES WHILE THIS
CASE GOES FORWARD. 

ACCORDINGLY, THE JUDGMENT BELOW WILL BE VACATED AND THE CASE REMANDED
TO THE DISTRICT COURT, WITH INSTRUCTIONS TO AFFORD THE APPELLEES A
REASONABLE OPPORTUNITY TO BRING APPROPRIATE PROCEEDINGS IN THE VIRGINIA
COURTS, MEANWHILE RETAINING ITS OWN JURISDICTION OF THE CASE, AND FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  "THIS ARTICLE SHALL NOT BE APPLICABLE TO ATTORNEYS WHO ARE
PARTIES TO CONTINGENT FEE CONTRACTS WITH THEIR CLIENTS WHERE THE
ATTORNEY DOES NOT PROTECT THE CLIENT FROM PAYMENT OF THE COSTS AND
EXPENSE OF LITIGATION, NOR SHALL THIS ARTICLE APPLY TO ANY MATTER
INVOLVING ANNEXATION, ZONING, BOND ISSUES, OR THE HOLDING OR RESULTS OF
ANY ELECTION OR REFERENDUM, NOR SHALL THIS ARTICLE APPLY TO SUITS
PERTAINING TO OR AFFECTING POSSESSION OF OR TITLE TO REAL OR PERSONAL
PROPERTY, REGARDLESS OF OWNERSHIP, NOR SHALL THIS ARTICLE APPLY TO
SUITS INVOLVING THE LEGALITY OF ASSESSMENT OR COLLECTION OF TAXES OR
THE RATES THEREOF, NOR SHALL THIS ARTICLE APPLY TO SUITS INVOLVING
RATES OR CHARGES OR SERVICES BY COMMON CARRIERS OR PUBLIC UTILITIES,
NOR SHALL THIS ARTICLE APPLY TO CRIMINAL PROSECUTIONS, NOR TO THE
PAYMENT OF ATTORNEYS BY LEGAL AID SOCIETIES APPROVED BY THE VIRGINIA
STATE BAR, NOR TO PROCEEDINGS TO ABATE NUISANCES.  NOTHING HEREIN SHALL
BE CONSTRUED TO BE IN DEROGATION OF THE CONSTITUTIONAL RIGHTS OF REAL
PARTIES IN INTEREST TO EMPLOY COUNSEL OR TO PROSECUTE ANY AVAILABLE
LEGAL REMEDY UNDER THE LAWS OF THIS STATE." 

FN2  CHIEF JUDGE HUTCHESON, THE DISSENTING JUDGE, DID NOT REACH THE
CONSTITUTIONALITY OF ANY OF THESE STATUTES, BECAUSE OF HIS VIEWS ON THE
"ABSTENTION" ISSUE. 

FN3  IN THIS, THE DISTRICT COURT RELIED ON UNITED STATES V. HARRISS,
347 U.S. 612. 

FN4  THE LOWER COURT CITED, AMONG OTHER CASES, AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382; SCHENCK V. UNITED STATES,
249 U.S. 47; DENNIS V. UNITED STATES, 341 U.S. 494; BUCHANAN V. WARLEY,
245 U.S. 60; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; THOMAS V.
COLLINS, 323 U.S. 516; AND DISTINGUISHED BRYANT V. ZIMMERMAN, 278 U.S.
63. 

FN5  CITING UNITED STATES V. HARRISS, SUPRA. 

FN6  ON THE LATTER GROUND, THE COURT DISTINGUISHED SUCH CASES AS
CANTWELL V. CONNECTICUT, 310 U.S. 296, AND BURROUGHS V. UNITED STATES,
290 U.S. 534; AND CITED THOMAS V. COLLINS, SUPRA.

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

THE RULE INVOKED BY THE COURT TO REQUIRE THE FEDERAL DISTRICT COURT
TO KEEP HANDS OFF THIS LITIGATION UNTIL THE STATE COURT HAS CONSTRUED
THESE LAWS IS A JUDGE-MADE RULE.  IT WAS FASHIONED IN 1941 IN THE
DECISION OF RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496, AS A DEVICE
TO AVOID NEEDLESS DECISIONS UNDER THE FEDERAL CONSTITUTION WHERE A
RESOLUTION OF STATE LAW QUESTIONS MIGHT MAKE THOSE ADJUDICATIONS
UNNECESSARY.  SINCE THAT TIME, THE RULE OF THE PULLMAN CASE HAS BEEN
GREATLY EXPANDED.   IT HAS INDEED BEEN EXTENDED SO FAR AS TO MAKE THE
PRESENCE IN FEDERAL COURT LITIGATION OF A STATE LAW QUESTION A
CONVENIENT EXCUSE FOR REQUIRING THE FEDERAL COURT TO HOLD ITS HAND
WHILE A SECOND LITIGATION IS UNDERTAKEN IN THE STATE COURT.  THIS IS A
DELAYING TACTIC THAT MAY INVOLVE YEARS OF TIME AND THAT INEVITABLY
DOUBLES THE COST OF LITIGATION.  WHEN USED WIDESPREAD, IT DILUTES THE
STATURE OF THE FEDERAL DISTRICT COURTS, MAKING THEM SECONDARY TRIBUNALS
IN THE ADMINISTRATION OF JUSTICE UNDER THE FEDERAL CONSTITUTION. 

WITH ALL DUE DEFERENCE, THIS CASE SEEMS TO ME TO BE THE MOST
INAPPROPRIATE ONE OF ALL IN WHICH TO WITHHOLD THE HAND OF THE FEDERAL
DISTRICT COURT.  CONGRESS HAS ORDAINED IN THE CIVIL RIGHTS ACT THAT
"ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES SHALL HAVE
THE SAME RIGHT IN EVERY STATE ...  TO SUE, BE PARTIES, GIVE EVIDENCE
...  AS IS ENJOYED BY WHITE CITIZENS  ...  ."  42 U.S.C. SECS. 1981. 
IT HAS SUBJECTED TO SUIT "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE,
...  SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED
STATES OR OTHER PERSON  ...  TO THE DEPRIVATION OF ANY RIGHTS  ...
SECURED BY THE CONSTITUTION AND LAWS  ...  " 42 U.S.C. SEC. 1983; AND
HAS GIVEN THE DISTRICT COURTS "ORIGINAL JURISDICTION" OF ACTIONS "TO
REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,  ...  OF ANY
RIGHT  ...  SECURED BY THE CONSTITUTION OF THE UNITED STATES OR ANY ACT
OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF CITIZENS  ...  ."  28 U.S.C.
SEC. 1343.  THE LATTER SECTION WAS INVOKED HERE.  FROM THE TIME WHEN
CONGRESS FIRST IMPLEMENTED THE FOURTEENTH AMENDMENT BY THE
COMPREHENSIVE CIVIL RIGHTS ACT OF 1871 THE THOUGHT HAS PREVAILED THAT
THE FEDERAL COURTS ARE THE UNIQUE TRIBUNALS WHICH ARE TO BE UTILIZED TO
PRESERVE THE CIVIL RIGHTS OF THE PEOPLE.  REPRESENTATIVE DAWES, IN THE
DEBATE ON THE 1871 BILL, ASKED "WHAT IS THE PROPER METHOD OF THUS
SECURING THE FREE AND UNDISTURBED ENJOYMENT OF THESE RIGHTS?"  LOOKING
TO THE ACT WHICH EVENTUALLY BECAME LAW HE ANSWERED, "THE FIRST REMEDY
PROPOSED BY THIS BILL IS A RESORT TO THE COURTS OF THE UNITED STATES.*
IS THAT A PROPER PLACE IN WHICH TO FIND REDRESS FOR ANY SUCH WRONGS? 
IF THERE BE POWER TO CALL INTO THE COURTS OF THE UNITED STATES AN
OFFENDER AGAINST THESE RIGHTS, PRIVILEGES AND IMMUNITIES; AND HOLD HIM
TO ACCOUNT THERE,  ...  I SUBMIT  ...  THAT THERE IS NO TRIBUNAL SO
FITTED, WHERE EQUAL AND EXACT JUSTICE WOULD BE MORE LIKELY TO BE METED
OUT IN TEMPER, IN MODERATION, IN SEVERITY, IF NEED BE, BUT ALWAYS
ACCORDING TO THE LAW AND FACT, AS THAT GREAT TRIBUNAL OF THE
CONSTITUTION."  CONG.  GLOBE, 42D CONG., 1ST SESS. 476 (1871). 

*IT WAS NOT UNTIL 1875 THAT CONGRESS GAVE THE FEDERAL COURTS GENERAL
JURISDICTION OVER FEDERAL-QUESTION CASES.  18 STAT. 470.  THE CHOICE
MADE IN THE CIVIL RIGHTS ACTS OF 1870 AND 1871 TO UTILIZE THE FEDERAL
COURTS TO INSURE THE EQUAL RIGHTS OF THE PEOPLE WAS A DELIBERATE ONE,
REFLECTING A BELIEF THAT SOME STATE COURTS, WHICH WERE CHARGED WITH
ORIGINAL JURISDICTION IN THE NORMAL FEDERAL-QUESTION CASE, MIGHT NOT BE
HOSPITABLE TO CLAIMS OF DEPRIVATION OF CIVIL RIGHTS.  WHETHER OR NOT
THAT PREMISE IS TRUE TODAY, THE FACT REMAINS THAT THERE HAS BEEN NO
ALTERATION OF THE CONGRESSIONAL INTENT TO MAKE THE FEDERAL COURTS THE
PRIMARY PROTECTOR OF THE LEGAL RIGHTS SECURED BY THE FOURTEENTH AND
FIFTEENTH AMENDMENTS AND THE CIVIL RIGHTS ACTS. 

IT SEEMS PLAIN TO ME THAT IT WAS THE DISTRICT COURT'S DUTY TO PROVIDE
THIS REMEDY, IF THE APPELLEES, WHO INVOKED THAT COURT'S JURISDICTION
UNDER THE CIVIL RIGHTS ACT, PROVED THEIR CHARGE THAT THE APPELLANTS,
UNDER THE COLOR OF THE VIRGINIA STATUTES, HAD DEPRIVED THEM OF CIVIL
RIGHTS SECURED BY THE FEDERAL CONSTITUTION.  SEE HAGUE V. C.I.O., 307
U.S. 496, 530-532. 

JUDGE SOPER, SPEAKING FOR THE THREE-JUDGE DISTRICT COURT, SAID THAT
THE FIVE STATUTES AGAINST WHICH THE SUITS WERE DIRECTED "WERE ENACTED
FOR THE EXPRESS PURPOSE OF IMPEDING THE INTEGRATION OF THE RACES IN THE
PUBLIC SCHOOLS" OF VIRGINIA.  159 F. SUPP. 503, 511.  HE REVIEWED AT
LENGTH THE LEGISLATIVE HISTORY OF THE FIVE VIRGINIA STATUTES (ID., 511
515) CONCLUDING THAT "THEY WERE PASSED TO NULLIFY AS FAR AS POSSIBLE
THE EFFECT OF THE DECISIONS" OF THIS COURT IN BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, 349 U.S. 294.  ID., 511.  THEY WERE INDEED
"PARTS OF THE GENERAL PLAN OF MASSIVE RESISTANCE" WHICH VIRGINIA
INAUGURATED AGAINST THOSE DECISIONS.  ID., 515.    OF COURSE VIRGINIA
COURTS WERE NOT PARTIES TO THE FORMULATION OF THAT LEGISLATIVE
PROGRAM.  BUT THEY ARE INTERPRETERS OF VIRGINIA LAWS AND BOUND TO
CONSTRUE THEM, IF POSSIBLE, SO THAT THE LEGISLATIVE PURPOSE IS NOT
FRUSTRATED.  WHERE STATE LAWS MAKE SUCH AN ASSAULT AS THESE DO ON OUR
DECISIONS AND A STATE HAS SPOKEN DEFIANTLY AGAINST THE CONSTITUTIONAL
RIGHTS OF THE CITIZENS, REASONS FOR SHOWING DEFERENCE TO LOCAL
INSTITUTIONS VANISH.  THE CONFLICT IS PLAIN AND APPARENT; AND THE
FEDERAL COURTS STAND AS THE ONE AUTHORITATIVE BODY FOR ENFORCING THE
CONSTITUTIONAL RIGHT OF THE CITIZENS. 

THIS COURT HAS HAD BEFORE IT OTHER STATE SCHEMES INTENDED TO
EMASCULATE CONSTITUTIONAL PROVISIONS OR CIRCUMVENT OUR CONSTITUTIONAL
DECISIONS.  IN GUINN V. UNITED STATES, 238 U.S. 347, A "GRANDFATHER
CLAUSE" IN AN OKLAHOMA SUFFRAGE STATUTE, EXEMPTING CITIZENS WHO WERE
QUALIFIED TO VOTE ON JANUARY 1, 1866, AND THEIR LINEAL DESCENDANTS,
FROM THE REQUIREMENTS OF A LITERACY TEST WAS SAID TO HAVE "NO
DISCERNIBLE REASON OTHER THAN THE PURPOSE TO DISREGARD THE PROHIBITIONS
OF THE FIFTEENTH AMENDMENT," AND WAS STRUCK DOWN BECAUSE IN "DIRECT AND
POSITIVE DISREGARD" OF THAT AMENDMENT.  ID., PP. 363, 365.  OKLAHOMA
SOUGHT TO AVOID THE EFFECTS OF THAT DECISION (RENDERED IN 1915) BY
REQUIRING ALL QUALIFIED VOTERS IN 1916 TO REGISTER WITHIN A NAMED 12
DAY PERIOD, ELSE THE RIGHT TO VOTE WOULD BE LOST TO THEM PERMANENTLY. 
PERSONS WHO VOTED IN THE 1914 ELECTION WERE, HOWEVER, EXEMPT FROM THE
REQUIREMENT.  THE NEW STATUTE WAS INVALIDATED, THIS COURT NOTING THAT
THE FIFTEENTH AMENDMENT BARRED "SOPHISTICATED AS WELL AS SIMPLE-MINDED"
CONTRIVANCES BY A STATE TO THWART EQUALITY IN THE ENJOYMENT OF THE
RIGHT TO VOTE."  LANE V. WILSON, 307 U.S. 268, 275.  THE BOSWELL
AMENDMENT TO THE ALABAMA CONSTITUTION REQUIRED PROSPECTIVE VOTERS TO
UNDERSTAND AND EXPLAIN A SECTION OF THE ALABAMA CONSTITUTION TO THE
SATISFACTION OF A REGISTRAR.  A THREE-JUDGE COURT FOUND IT TO BE A
DEVICE IN PURPOSE AND IN PRACTICE TO PERPETUATE RACIAL DISTINCTIONS IN
REGULATION OF SUFFRAGE.  WE AFFIRMED THE JUDGMENT WITHOUT REQUIRING ANY
SUBMISSION OF THE AMENDMENT TO THE STATE COURTS TO SEE HOW THEY MIGHT
NARROW IT.  SCHNELL V. DAVIS, 336 U.S. 933, AFFIRMING 81 F. SUPP. 872. 
ALL THESE CASES ORIGINATED IN FEDERAL COURTS AND IMPLICATED STATE LAWS
EVASIVE OF OUR DECISIONS; AND WE DECIDED THEM WITHOUT REROUTING THEM
THROUGH THE STATE COURTS. 

A SIMILAR HISTORY IS EVIDENCED BY THE "WHITE PRIMARY" CASES.  IT
STARTS WITH NIXON V. HERNDON, 273 U.S. 536, WHERE A TEXAS STATUTE
PROHIBITING NEGROES FROM PARTICIPATING IN DEMOCRATIC PARTY PRIMARY
ELECTIONS WAS CHARACTERIZED AS A "DIRECT AND OBVIOUS INFRINGEMENT" OF
THE FOURTEENTH AMENDMENT'S EQUAL PROTECTION CLAUSE.  AS A RESULT OF
THAT DECISION, THE TEXAS LEGISLATURE ENACTED A NEW STATUTE AUTHORIZING
THE STATE EXECUTIVE COMMITTEE OF A POLITICAL PARTY TO PRESCRIBE THE
QUALIFICATIONS FOR VOTERS IN ITS PRIMARY ELECTIONS.  PURSUANT THERETO
THE DEMOCRATIC PARTY COMMITTEE ADOPTED A RESOLUTION LIMITING THE VOTING
PRIVILEGE TO WHITE DEMOCRATS.  FINDING THAT THE COMMITTEE WAS AN ARM OF
THE STATE, AND THAT IT DISCHARGED ITS POWER IN SUCH A WAY AS TO
"DISCRIMINATE INVIDIOUSLY BETWEEN WHITE CITIZENS AND BLACK" THIS COURT
OVERTURNED THE RESTRICTION.  NIXON V. CONDON, 286 U.S. 73, 89.  IN
SMITH V. ALLWRIGHT, 321 U.S. 649, WE HELD THAT APPROVAL BY THE STATE
PARTY CONVENTION OF THE DISCRIMINATING PROHIBITION DID NOT SAVE IT.
AND SEE TERRY V. ADAMS, 345 U.S. 461.  THESE CASES TOO ORIGINATED IN
FEDERAL COURTS AND WERE AIMED AT STATE LAWS AT WAR WITH OUR DECISIONS. 
HERE, AGAIN, WE DECIDED THEM WITHOUT MAKING THE PARTIES FIRST REPAIR TO
THE STATE COURTS FOR A CONSTRUCTION OF THE STATE STATUTES. 

WE NEED NOT - WE SHOULD NOT - GIVE DEFERENCE TO A STATE POLICY THAT
SEEKS TO UNDERMINE PARAMOUNT FEDERAL LAW.  WE FAIL TO PERFORM THE DUTY
EXPRESSLY ENJOINED BY CONGRESS ON THE FEDERAL JUDICIARY IN THE CIVIL
RIGHTS ACTS WHEN WE DO SO. 

TO RETURN TO THE PRESENT CASE:  THE ERROR, IF ANY, OF THE DISTRICT
COURT WAS NOT IN PASSING ON THE CONSTITUTIONALITY OF THREE OF THE FIVE
VIRGINIA STATUTES NOW BEFORE US BUT IN REMITTING THE PARTIES TO THE
VIRGINIA COURTS FOR A CONSTRUCTION OF THE OTHER TWO. 
..END :










COUNTY OF ALLEGHENY V. FRANK MASHUDA CO. 360 U.S. 185 


NO. 347.  ARGUED APRIL 2, 1959.  - DECIDED JUNE 8, 1959.  - 256 F.2D
241, AFFIRMED. 


1.  A FEDERAL DISTRICT COURT MAY NOT ABSTAIN FROM EXERCISING ITS
PROPERLY INVOKED DIVERSITY JURISDICTION IN A STATE EMINENT DOMAIN CASE
IN WHICH THE EXERCISE OF THAT JURISDICTION WOULD NOT ENTAIL THE
POSSIBILITY OF A PREMATURE AND PERHAPS UNNECESSARY DECISION OF A
SERIOUS FEDERAL CONSTITUTIONAL QUESTION, WOULD NOT CREATE THE HAZARD OF
UNSETTLING SOME DELICATE BALANCE IN THE AREA OF FEDERAL-STATE
RELATIONSHIPS, AND WOULD NOT EVEN REQUIRE THE DISTRICT COURT TO GUESS
AT THE RESOLUTION OF UNCERTAIN AND DIFFICULT ISSUES OF STATE LAW.  PP.
186-198. 

2.  WHILE A PROCEEDING TO ASSESS DAMAGES FOR THE CONDEMNATION OF LAND
FOR AN AIRPORT WAS PENDING IN A PENNSYLVANIA STATE COURT, THE
LANDOWNERS, PROPERLY INVOKING JURISDICTION ON THE GROUND OF DIVERSITY
OF CITIZENSHIP, SUED IN A FEDERAL DISTRICT COURT FOR A JUDGMENT OF
OUSTER, ON THE GROUND THAT THE TAKING WAS FOR PRIVATE USE AND THEREFORE
CONTRARY TO STATE LAW.  THERE WAS NO FEDERAL CONSTITUTIONAL QUESTION
INVOLVED; THE STATE LAW ON THE POINT WAS CLEAR AND WELL SETTLED; THE
CASE TURNED ON THE PURELY FACTUAL QUESTION WHETHER THE TAKING WAS FOR
PRIVATE RATHER THAN PUBLIC USE; AND UNDER STATE PROCEDURE THE ISSUE OF
THE VALIDITY OF THE TAKING COULD BE LITIGATED IN A SEPARATE SUIT. 
HOWEVER, THE DISTRICT COURT DISMISSED THE SUIT ON THE GROUND THAT IT
SHOULD NOT INTERFERE WITH THE ADMINISTRATION OF THE AFFAIRS OF A
POLITICAL SUBDIVISION ACTING UNDER COLOR OF STATE LAW IN A CONDEMNATION
PROCEEDING.  HELD:  NO EXCEPTIONAL CIRCUMSTANCES JUSTIFYING ABSTENTION
APPEAR IN THIS CASE, AND THE DISTRICT COURT SHOULD HAVE ADJUDICATED THE
CLAIM.  PP. 186-198. 

(A)  THE DOCTRINE OF ABSTENTION, UNDER WHICH A DISTRICT COURT MAY
DECLINE TO EXERCISE OR POSTPONE THE EXERCISE OF ITS JURISDICTION, IS AN
EXTRAORDINARY AND NARROW EXCEPTION TO THE DUTY OF A DISTRICT COURT TO
ADJUDICATE A CONTROVERSY PROPERLY BEFORE IT.  P. 188. 

(B)  ABDICATION OF THE OBLIGATION TO DECIDE CASES CAN BE JUSTIFIED
UNDER THIS DOCTRINE ONLY IN THE EXCEPTIONAL CIRCUMSTANCES WHERE THE
ORDER TO THE PARTIES TO REPAIR TO THE STATE COURT WOULD CLEARLY SERVE
AN IMPORTANT CONTERVAILING INTEREST.  PP. 188-189. 

(C)  AN ORDER TO THE PARTIES TO REPAIR TO THE STATE COURT IN THIS
CASE WOULD NOT ENTAIL THE POSSIBILITY OF MOOTING A FEDERAL
CONSTITUTIONAL ISSUE OR CHANGING ITS POSTURE.  P. 189. 

(D)  ADJUDICATION OF THE ISSUES IN THIS CASE BY THE DISTRICT COURT
WOULD PRESENT NO HAZARD OF DISRUPTING FEDERAL-STATE RELATIONS, SINCE
THE DISTRICT COURT WOULD BE ACTING TOWARD THE PENDING STATE
CONDEMNATION PROCEEDING IN THE SAME MANNER AS WOULD A STATE COURT.  PP.
189-191. 

(E)  THE FACT THAT THIS CASE CONCERNS THE EXERCISE OF A STATE'S POWER
OF EMINENT DOMAIN DID NOT JUSTIFY THE DISTRICT COURT IN ABSTAINING FROM
EXERCISING ITS JURISDICTION.  PP. 191-196. 

(F)  THIS CASE ILLUSTRATES THE UNNECESSARY DELAY AND EXPENSE THAT
RESULTS FROM REFUSAL OF THE DISTRICT COURT TO EXERCISE ITS PROPERLY
INVOKED JURISDICTION.  PP. 196-197. 

(G)  REFUSAL TO EXERCISE JURISDICTION COULD NOT BE JUSTIFIED ON THE
GROUND THAT THE STATE COURT HAD ASSUMED JURISDICTION OVER THE RES,
SINCE THE PENDING STATE PROCEEDING WAS SIMPLY AN IN PERSONAM SUIT TO
DETERMINE THE AMOUNT THE STATE SHOULD PAY FOR THE PROPERTY.  P. 197. 

(H)  A DECISION BY THE DISTRICT COURT HOLDING THAT THE TAKING WAS
INVALID WOULD NOT BE BARRED BY 28 U.S.C. SEC. 2283, WHICH PROVIDES THAT
A FEDERAL COURT MAY NOT GRANT AN INJUNCTION TO STAY PROCEEDINGS IN A
STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF CONGRESS OR WHERE
NECESSARY IN AID OF ITS JURISDICTION OR TO PROTECT OR EFFECTUATE ITS
JUDGMENTS, SINCE RESPONDENTS DO NOT SEEK AN INJUNCTION IN THIS CASE. 
PP. 197-198. 

COUNTY OF ALLEGHENY V. FRANK MASHUDA CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER A DISTRICT COURT MAY ABSTAIN
FROM EXERCISING ITS PROPERLY INVOKED DIVERSITY JURISDICTION IN A STATE
EMINENT DOMAIN CASE IN WHICH THE EXERCISE OF THAT JURISDICTION WOULD
NOT ENTAIL THE POSSIBILITY OF A PREMATURE AND PERHAPS UNNECESSARY
DECISION OF A SERIOUS FEDERAL CONSTITUTIONAL QUESTION, WOULD NOT CREATE
THE HAZARD OF UNSETTLING SOME DELICATE BALANCE IN THE AREA OF FEDERAL
STATE RELATIONSHIPS, AND WOULD NOT EVEN REQUIRE THE DISTRICT COURT TO
GUESS AT THE RESOLUTION OF UNCERTAIN AND DIFFICULT ISSUES OF STATE
LAW.  WE HOLD THAT IN SUCH CIRCUMSTANCES A DISTRICT COURT CANNOT REFUSE
TO DISCHARGE THE RESPONSIBILITY, IMPOSED BY CONGRESS UNDER 28 U.S.C.
SEC.  1332 AND 1441, TO RENDER PROMPT JUSTICE IN CASES WHERE ITS
DIVERSITY JURISDICTION HAS BEEN PROPERLY INVOKED. 

THE BOARD OF COUNTY COMMISSIONERS OF ALLEGHENY COUNTY, PENNSYLVANIA,
INVOKED THE APPLICABLE EMINENT DOMAIN STATUTES OF THE STATE TO
APPROPRIATE CERTAIN PROPERTY OF RESPONDENTS, CITIZENS OF WISCONSIN, FOR
THE ALLEGED PURPOSE OF IMPROVING AND ENLARGING THE GREATER PITTSBURGH
AIRPORT.  THE BOARD ADOPTED THE REQUIRED RESOLUTION OF TAKING, AND
THEREAFTER PETITIONED THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY FOR
APPOINTMENT OF A BOARD OF VIEWERS TO ASSESS DAMAGES FOR THE TAKING.  A
BOARD OF VIEWERS WAS CONVENED AND AWARDED THE RESPONDENTS $52,644 IN
COMPENSATION FOR THEIR PROPERTY.  BOTH PARTIES APPEALED THIS AWARD TO
THE COMMON PLEAS COURT PURSUANT TO THE STATE PROCEDURE, AND THAT
PROCEEDING IS NOW PENDING.  SUBSEQUENT TO THE TIME WHEN THE COUNTY
OBTAINED POSSESSION RESPONDENTS LEARNED THAT THEIR PROPERTY HAD BEEN
LEASED TO MARTIN W. WISE, INC., ALLEGEDLY FOR ITS PRIVATE BUSINESS
USE.  THE APPLICABLE PENNSYLVANIA SUBSTANTIVE LAW IS CLEAR:  "IT IS
SETTLED LAW IN PENNSYLVANIA THAT PRIVATE PROPERTY CANNOT BE TAKEN FOR A
PRIVATE USE UNDER THE POWER OF EMINENT DOMAIN."  PHILADELPHIA CLAY CO.
V. YORK CLAY CO., 241 PA.  305, 308, 88 A. 487; SEE ALSO WINGER V.
AIRES, 371 PA. 242, 89 A.2D 521; LANCE'S APPEAL 55 PA. 16. 

ON THE BASIS OF THIS SETTLED LAW RESPONDENTS BROUGHT SUIT IN THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA,
ALLEGING THAT "AT THE TIME OF THE TAKING THE ONLY DEFINITE PLAN AND
PURPOSE OF THE COUNTY WITH REGARD TO SAID LAND WAS THAT THE SAME WOULD
BE LEASED TO DEFENDANT MARTIN W. WISE, INC. FOR THE BENEFIT OF THE SAID
LESSEE AND FOR NO PUBLIC USE," AND SEEKING A JUDGMENT OF OUSTER AGAINST
THE COUNTY AND MARTIN W. WISE, INC., DAMAGES, AND, IN THE ALTERNATIVE,
AN INJUNCTION RESTRAINING THE COUNTY FROM PROCEEDING FURTHER IN THE
PENDING STATE COURT DAMAGE PROCEEDING.  (FN1)  THE DISTRICT COURT,
ALTHOUGH RECOGNIZING THAT ITS DIVERSITY JURISDICTION HAD BEEN PROPERLY
INVOKED, DISMISSED THE SUIT ON THE GROUND THAT IT "SHOULD NOT INTERFERE
WITH THE ADMINISTRATION OF THE AFFAIRS OF A POLITICAL SUBDIVISION
ACTING UNDER COLOR OF STATE LAW IN A CONDEMNATION PROCEEDING."  154 F.
SUPP. 628, 629.  THE COURT OF APPEALS REVERSED, HOLDING THAT A
CHALLENGE TO THE VALIDITY OF A TAKING SUCH AS RESPONDENTS MAKE IN THIS
CASE MAY, AND PERHAPS MUST, BE BROUGHT IN AN INDEPENDENT SUIT DIFFERENT
FROM THE BOARD OF VIEWERS PROCEEDING TO ASSESS DAMAGES, AND THAT SUCH
AN INDEPENDENT SUIT BASED ON DIVERSITY OF CITIZENSHIP COULD THEREFORE
BE MAINTAINED IN THE DISTRICT COURT.  256 F.2D 241.  WE GRANTED
CERTIORARI BECAUSE OF THE IMPORTANT QUESTION PRESENTED AS TO WHETHER
THE DISTRICT COURT HAD DISCRETION TO ABSTAIN FROM THE EXERCISE OF
JURISDICTION IN THE CIRCUMSTANCES OF THIS CASE.  358 U.S. 872. 

THE DOCTRINE OF ABSTENTION, UNDER WHICH A DISTRICT COURT MAY DECLINE
TO EXERCISE OR POSTPONE THE EXERCISE OF ITS JURISDICTION, IS AN
EXTRAORDINARY AND NARROW EXCEPTION TO THE DUTY OF A DISTRICT COURT TO
ADJUDICATE A CONTROVERSY PROPERLY BEFORE IT.  ABDICATION OF THE
OBLIGATION TO DECIDE CASES CAN BE JUSTIFIED UNDER THIS DOCTRINE ONLY IN
THE EXCEPTIONAL CIRCUMSTANCES WHERE THE ORDER TO THE PARTIES TO REPAIR
TO THE STATE COURT WOULD CLEARLY SERVE AN IMPORTANT COUNTERVAILING
INTEREST.  SINCE NO EXCEPTIONAL CIRCUMSTANCES JUSTIFYING ABSTENTION
APPEAR IN THIS CASE WE THINK THAT THE COURT OF APPEALS WAS CORRECT IN
HOLDING THAT THE DISTRICT COURT SHOULD HAVE ADJUDICATED THE
RESPONDENTS' CLAIM. 

THIS COURT HAS SANCTIONED A FEDERAL COURT'S POSTPONEMENT OF THE
EXERCISE OF ITS JURISDICTION IN CASES PRESENTING A FEDERAL
CONSTITUTIONAL ISSUE WHICH MIGHT BE MOOTED OR PRESENTED IN A DIFFERENT
POSTURE BY A STATE COURT DETERMINATION OF PERTINENT STATE LAW.  SEE,
E.G., CITY OF MERIDIAN V. SOUTHERN BELL TEL. & TEL. CO., 358 U.S. 639;
GOVERNMENT EMPLOYEES ORGANIZING COMM. V. WINDSOR, 353 U.S. 364; LEITER
MINERALS, INC., V. UNITED STATES, 352 U.S. 220; ALBERTSON V. MILLARD,
345 U.S. 242; SHIPMAN V. DUPRE, 339 U.S. 321; STAINBACK V. MO HOCK KE
LOK PO, 336 U.S. 368; AMERICAN FEDERATION OF LABOR V. WATSON, 327 U.S.
582; ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450;
SPECTOR MOTOR SERVICE, INC., V. MCLAUGHLIN, 323 U.S. 101; CHICAGO V.
FIELDCREST DAIRIES, INC., 316 U.S. 168; RAILROAD COMM'N OF TEXAS V.
PULLMAN CO., 312 U.S. 496.  BUT THERE ARE NO FEDERAL CONSTITUTIONAL
QUESTIONS RAISED IN THIS CASE. 

THIS COURT HAS ALSO UPHELD AN ABSTENTION ON GROUNDS OF COMITY WITH
THE STATES WHEN THE EXERCISE OF JURISDICTION BY THE FEDERAL COURT WOULD
DISRUPT A STATE ADMINISTRATIVE PROCESS, BURFORD V. SUN OIL CO., 319
U.S. 315; PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, INTERFERE WITH THE
COLLECTION OF STATE TAXES, TOOMER V. WITSELL, 334 U.S. 385, 392; GREAT
LAKES DREDGE & DOCK CO. V. HUFFMAN, 319 U.S. 293, OR OTHERWISE CREATE
NEEDLESS FRICTION BY UNNECESSARILY ENJOINING STATE OFFICIALS FROM
EXECUTING DOMESTIC POLICIES, ALABAMA PUBLIC SERVICE COMM'N V. SOUTHERN
R. CO., 341 U.S. 341; HAWKS V. HAMILL, 288 U.S. 52.  BUT ADJUDICATION
OF THE ISSUES IN THIS CASE BY THE DISTRICT COURT WOULD PRESENT NO
HAZARD OF DISRUPTING FEDERAL-STATE RELATIONS.  THE RESPONDENTS DID NOT
ASK THE DISTRICT COURT TO APPLY PARAMOUNT FEDERAL LAW TO PROHIBIT STATE
OFFICIALS FROM CARRYING OUT STATE DOMESTIC POLICIES, NOR DO THEY SEEK
THE OBVIOUS IRRITANT TO STATE-FEDERAL RELATIONS OF AN INJUNCTION
AGAINST STATE OFFICIALS.  THE ONLY QUESTION FOR DECISION IS THE PURELY
FACTUAL QUESTION WHETHER THE COUNTY EXPROPRIATED THE RESPONDENTS' LAND
FOR PRIVATE RATHER THAN FOR PUBLIC USE.  THE DISTRICT COURT WOULD
SIMPLY BE ACTING AS WOULD A COURT OF THE STATE IN APPLYING TO THE FACTS
OF THIS CASE THE SETTLED STATE POLICY THAT A COUNTY MAY NOT TAKE A
PRIVATE CITIZEN'S LAND UNDER THE STATE'S POWER OF EMINENT DOMAIN EXCEPT
FOR PUBLIC USE. 

IT IS TRUE THAT A DECISION BY THE DISTRICT COURT RETURNING THE LAND
TO RESPONDENTS ON THE GROUND THAT THE TAKING WAS INVALID WOULD
INTERFERE WITH THE PROCEEDING TO ASSESS DAMAGES NOW PENDING IN THE
STATE COURT IN THE SENSE THAT THE DAMAGE PROCEEDING WOULD BE MOOTED
SINCE THE COUNTY WOULD NO LONGER HAVE THE LAND.  BUT THIS INTERFERENCE,
IF PROPERLY CALLED INTERFERENCE AT ALL, CANNOT JUSTIFY ABSTENTION SINCE
EXACTLY THE SAME SUIT TO CONTEST THE VALIDITY OF THE TAKING COULD BE
BROUGHT IN A STATE COURT DIFFERENT FROM THE ONE IN WHICH THE DAMAGE
PROCEEDING IS NOW PENDING.  IT IS PERFECTLY CLEAR UNDER PENNSYLVANIA
LAW THAT THE RESPONDENTS COULD HAVE CHALLENGED THE VALIDITY OF THE
TAKING, ON THE GROUND THAT IT WAS NOT FOR PUBLIC PURPOSES, IN A SUIT
BROUGHT IN A COURT OF COMMON PLEAS INDEPENDENT OF THE DAMAGE
PROCEEDINGS PENDING ON APPEAL FROM THE BOARD OF VIEWERS.  THE COURT OF
APPEALS' OPINION INSTRUCTS US AS TO THE STATE PROCEDURE WHICH WOULD
HAVE APPLIED IF RESPONDENTS HAD CHOSEN THE STATE FORUM:  "THESE
PENNSYLVANIA AUTHORITIES ESTABLISH THE PROPRIETY, IF NOT THE NECESSITY,
OF TESTING THE VALIDITY OF A CONDEMNATION IN A PROCEEDING IN THE
PENNSYLVANIA COURTS INDEPENDENT OF THAT IN WHICH COMPENSATION IS
AWARDED."  256 F.2D, AT 243.  AGAIN THE COURT OF APPEALS STATED:  "THE
QUESTION INVOLVED BEFORE THE FEDERAL COURT NEED NOT, AND PERHAPS
CANNOT, BE RAISED IN THE PENDING STATE ACTION  ...  ."  IBID.  WE, OF
COURSE, USUALLY ACCEPT STATE LAW AS FOUND BY THE COURT OF APPEALS, SEE
PROPPER V. CLARK, 337 U.S. 472; THE TUNGUS V. SKOVGAARD, 358 U.S. 588,
596, AND WE HAVE NO HESITANCY IN DOING SO HERE WHERE THERE IS NO
INDICATION THAT ITS CONCLUSION AS TO THE STATE LAW IS NOT CORRECT. 
(FN2)  THE ISSUES OF VALIDITY AND DAMAGE ARE TRIABLE SEPARATELY NOT
BECAUSE FEDERAL JURISDICTION HAS BEEN INVOKED, BUT BECAUSE THEY ARE
TRIABLE SEPARATELY UNDER THE PENNSYLVANIA LAW.  RESPONDENTS, IT BEARS
REPETITION, COULD HAVE BROUGHT THIS VERY SUIT IN A STATE COURT
DIFFERENT FROM THE ONE IN WHICH THE DAMAGE PROCEEDING IS PENDING AND AN
ADJUDICATION OF THAT VALIDITY SUIT BY THE STATE COURT WOULD HAVE THE
SAME EFFECT ON THE PENDING DAMAGE PROCEEDING AS WILL THE FEDERAL COURT
ADJUDICATION.  INSTEAD OF BRINGING SUCH A SUIT IN THE STATE COURT,
RESPONDENTS EXERCISED THEIR RIGHT UNDER 28 U.S.C. SEC. 1332 TO
INSTITUTE THE EQUIVALENT SUIT IN THE DISTRICT COURT BASED ON DIVERSITY
OF CITIZENSHIP.  CERTAINLY CONSIDERATIONS OF COMITY ARE SATISFIED IF
THE DISTRICT COURT ACTS TOWARD THE PENDING STATE DAMAGE PROCEEDING IN
THE SAME MANNER AS WOULD A STATE COURT. 

IT IS SUGGESTED, HOWEVER, THAT ABSTENTION IS JUSTIFIED ON GROUNDS OF
AVOIDING THE HAZARD OF FRICTION IN FEDERAL-STATE RELATIONS ANY TIME A
DISTRICT COURT IS CALLED ON TO ADJUDICATE A CASE INVOLVING THE STATE'S
POWER OF EMINENT DOMAIN, EVEN THOUGH, AS IN THIS CASE, THE DISTRICT
COURT WOULD SIMPLY BE APPLYING STATE LAW IN THE SAME MANNER AS WOULD A
STATE COURT.  BUT THE FACT THAT A CASE CONCERNS A STATE'S POWER OF
EMINENT DOMAIN NO MORE JUSTIFIES ABSTENTION THAN THE FACT THAT IT
INVOLVES ANY OTHER ISSUE RELATED TO SOVEREIGNTY.  SURELY EMINENT DOMAIN
IS NO MORE MYSTICALLY INVOLVED WITH "SOVEREIGN PREROGATIVE" THAN A
STATE'S POWER TO REGULATE FISHING IN ITS WATERS, TOOMER V. WITSELL, 334
U.S. 385, ITS POWER TO REGULATE INTRASTATE TRUCKING RATES, PUBLIC
UTILITIES COMM'N OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, A CITY'S
POWER TO ISSUE CERTAIN BONDS WITHOUT A REFERENDUM, MEREDITH V. WINTER
HAVEN, 320 U.S. 228, ITS POWER TO LICENSE MOTOR VEHICLES, CHICAGO V.
ATCHISON, T.&S.F.R. CO., 357 U.S. 77, AND A HOST OF OTHER GOVERNMENTAL
ACTIVITIES CARRIED ON BY THE STATES AND THEIR SUBDIVISIONS WHICH HAVE
BEEN BROUGHT INTO QUESTION IN THE FEDERAL DISTRICT COURTS DESPITE
SUGGESTIONS THAT THOSE COURTS SHOULD HAVE STAYED THEIR HAND PENDING
PRIOR STATE COURT DETERMINATION OF STATE LAW. 

FURTHERMORE, THE FEDERAL COURTS HAVE BEEN ADJUDICATING CASES
INVOLVING ISSUES OF STATE EMINENT DOMAIN LAW FOR MANY YEARS, WITHOUT
ANY SUGGESTION THAT THERE WAS ENTAILED A HAZARD OF FRICTION IN FEDERAL
STATE RELATIONS.  A HOST OF CASES, MANY IN THIS COURT, HAVE APPROVED
THE DECISION BY A FEDERAL COURT OF PRECISELY THE SAME KIND OF STATE
EMINENT DOMAIN QUESTION WHICH THE DISTRICT COURT WAS ASKED TO DECIDE IN
THIS CASE.  THIS COURT APPROVED SUCH A DECISION AS EARLY AS 1878, (FN3)
IN BOOM CO. V. PATTERSON, 98 U.S. 403.  THERE THE PETITIONER, A PRIVATE
CORPORATION AUTHORIZED TO UTILIZE THE STATE'S POWER OF EMINENT DOMAIN,
MOVED IN A STATE COURT TO CONDEMN RESPONDENT'S LAND.  BOTH PARTIES
APPEALED FROM AN AWARD BY COMMISSIONERS, AS PROVIDED BY THE RELEVANT
STATE STATUTE, TO A STATE COURT FOR A TRIAL DE NOVO.  AT THIS POINT,
RESPONDENT REMOVED THE CASE TO A FEDERAL COURT ON THE BASIS OF
DIVERSITY OF CITIZENSHIP.  THIS COURT, WHILE RECOGNIZING THAT EMINENT
DOMAIN IS "AN EXERCISE BY THE STATE OF ITS SOVEREIGN RIGHT  ...  AND
WITH ITS EXERCISE THE UNITED STATES  ...  HAS NO RIGHT TO INTERFERE
...  ," HELD THAT THE REMOVAL WAS PROPER AND THAT THE FEDERAL COURT
CORRECTLY ADJUDICATED THE ISSUES INVOLVED.  THE COURT CONCLUDED:  "BUT
NOTWITHSTANDING THE RIGHT IS ONE THAT APPERTAINS TO SOVEREIGNTY, WHEN
THE SOVEREIGN POWER ATTACHES CONDITIONS TO ITS EXERCISE, THE INQUIRY
WHETHER THE CONDITIONS HAVE BEEN OBSERVED IS A PROPER MATTER FOR
JUDICIAL COGNIZANCE.  IF THAT INQUIRY TAKE THE FORM OF A PROCEEDING
BEFORE THE COURTS BETWEEN PARTIES,  ...  THERE IS A CONTROVERSY WHICH
IS SUBJECT TO THE ORDINARY INCIDENTS OF A CIVIL SUIT, AND ITS
DETERMINATION DEROGATES IN NO RESPECT FROM THE SOVEREIGNTY OF THE
STATE."  98 U.S., AT 406.  THIS RATIONALE WAS SUBSEQUENTLY APPLIED BY
THIS COURT TO UPHOLD ADJUDICATION OF STATE EMINENT DOMAIN PROCEEDINGS
INVOLVING SUITS BETWEEN DIVERSE PARTIES IN THE FEDERAL COURTS EVEN
THOUGH THE PROCEDURES AVAILABLE WOULD NOT BE THE SAME AS THOSE PROVIDED
BY THE STATE PRACTICE, SEARL V. SCHOOL DISTRICT NO. 2, 124 U.S. 197,
AND EVEN THOUGH THE CASE INVOLVED THE POWER OF THE CONDEMNING AUTHORITY
TO TAKE THE PROPERTY, PACIFIC RAILROAD REMOVAL CASES, 115 U.S. 1, 17
23. 

IT IS NOW SETTLED PRACTICE FOR FEDERAL DISTRICT COURTS TO DECIDE
STATE CONDEMNATION PROCEEDINGS IN PROPER CASES DESPITE CHALLENGES TO
THE POWER OF THE CONDEMNING AUTHORITY TO TAKE THE PROPERTY.  THIS COURT
HAS APPROVED OF THE PRACTICE MANY TIMES.  EAST TENNESSEE, VA. & GA. R.
CO. V. SOUTHERN TELEGRAPH CO., 112 U.S. 306; CLINTON V. MISSOURI P.R.
CO., 122 U.S. 469; UPSHUR COUNTY V. RICH, 135 U.S.  467, 475-477
(DICTUM); MARTIN'S ADM'R V. BALTIMORE & OHIO R. CO., 151 U.S. 673, 683
(DICTUM); MADISONVILLE TRACTION CO. V. ST. BERNARD MINING CO., 196 U.S.
239; MASON CITY AND FORT DODGE R. CO. V. BOYNTON, 204 U.S. 570;
COMMISSIONERS OF LAFAYETTE COUNTY V. ST. LOUIS SOUTHWESTERN R. CO., 257
U.S. 547 (DICTUM); CINCINNATI V. VESTER, 281 U.S. 439.  CF. RISTY V.
CHICAGO, R.I.&P.R. CO., 270 U.S. 378.  TRIAL OF STATE EMINENT DOMAIN
CASES HAS BECOME A COMMON PRACTICE IN THE FEDERAL COURTS.  (FN4)
INDEED, RULE 71A OF THE FEDERAL RULES OF CIVIL PROCEDURE, ADOPTED BY
THE COURT IN 1951, PROVIDES A DETAILED PROCEDURE FOR USE IN EMINENT
DOMAIN CASES IN THE FEDERAL DISTRICT COURTS AND SPECIFICALLY PROVIDES,
IN SUBSECTION (K), "THE PRACTICE AS HEREIN PRESCRIBED GOVERNS IN
ACTIONS INVOLVING THE EXERCISE OF THE POWER OF EMINENT DOMAIN UNDER THE
LAW OF A STATE, PROVIDED THAT IF THE STATE LAW MAKES PROVISION FOR
TRIAL OF ANY ISSUE BY JURY, OR FOR TRIAL OF THE ISSUE OF COMPENSATION
BY JURY OR COMMISSION OR BOTH, THAT PROVISION SHALL BE FOLLOWED."  THIS
RULE MAKES PERFECTLY CLEAR, AS DO THE NOTES OF THE ADVISORY COMMITTEE
ON RULES PERTAINING TO IT, (FN5) THAT THIS COURT, WHEN IT ADOPTED THE
RULE, INTENDED THAT STATE EMINENT DOMAIN CASES, INCLUDING THOSE WHICH
RAISED QUESTIONS OF AUTHORITY TO TAKE LAND, WOULD BE TRIED IN THE
FEDERAL DISTRICT COURTS IF JURISDICTION WAS PROPERLY INVOKED.  THIS WAS
CONFIRMED BY THIS COURT'S OPINION IN CHICAGO, R.I.&P.R.  CO. V. STUDE,
346 U.S. 574.  ALTHOUGH HOLDING THAT THE RESPONDENT COULD NOT REMOVE A
STATE CONDEMNATION CASE TO THE FEDERAL DISTRICT COURT ON DIVERSITY
GROUNDS BECAUSE HE WAS THE PLAINTIFF IN THE STATE PROCEEDING, THE COURT
CLEARLY RECOGNIZED THAT THE DEFENDANT IN SUCH A PROCEEDING COULD REMOVE
IN ACCORDANCE WITH SEC. 1441 AND OBTAIN A FEDERAL ADJUDICATION OF THE
ISSUES INVOLVED. 

THERE IS NO SUGGESTION THAT THE STATE EMINENT DOMAIN PROCEEDINGS
TRIED IN THE FEDERAL COURTS, BOTH BEFORE AND AFTER PROMULGATION OF THE
RULE 71A PROCEDURES, HAVE RESULTED IN MISAPPLICATION OF STATE LAW,
INCONVENIENCE, OR FRICTION WITH THE STATES.  RULE 71A WAS ADOPTED ONLY
AFTER A THOROUGH INVESTIGATION OF EMINENT DOMAIN PRACTICE IN THE
FEDERAL COURTS, (FN6) AND ITS PROVISION FOR TRYING STATE EMINENT DOMAIN
CASES IN THE DISTRICT COURTS NECESSARILY REFLECTS A CONCLUSION THAT
THIS PRACTICE IS UNOBJECTIONABLE. 

ASIDE FROM THE COMPLETE ABSENCE OF ANY POSSIBILITY THAT A DISTRICT
COURT ADJUDICATION IN THIS CASE WOULD NECESSITATE DECISION OF A FEDERAL
CONSTITUTIONAL ISSUE OR CONFLICT WITH STATE POLICY, THE STATE LAW THAT
THE DISTRICT COURT WAS ASKED TO APPLY IS CLEAR AND CERTAIN.  ALL THAT
WAS NECESSARY FOR THE DISTRICT COURT TO DISPOSE OF THIS CASE WAS TO
DETERMINE WHETHER, AS A MATTER OF FACT, THE RESPONDENTS' PROPERTY WAS
TAKEN FOR THE PRIVATE USE OF MARTIN W. WISE, INC. THE PROPRIETY OF A
FEDERAL ADJUDICATION IN THIS CASE FOLLOWS A FORTIORI FROM THE
ESTABLISHED PRINCIPLE THAT FEDERAL DISTRICT COURTS SHOULD APPLY SETTLED
STATE LAW WITHOUT ABSTAINING FROM THE EXERCISE OF JURISDICTION EVEN
THOUGH THIS COURSE WOULD REQUIRE DECISION OF DIFFICULT FEDERAL
CONSTITUTIONAL QUESTIONS.  CHICAGO V. ATCHISON, T.&S.F.R. CO., 357 U.S.
77; PUBLIC UTILITIES COMM'N OF CALIFORNIA V. UNITED STATES, 355 U.S.
534, TOOMER V. WITSELL, 334 U.S. 385. 

THE UNDESIRABILITY OF A REFUSAL TO EXERCISE JURISDICTION IN THE
ABSENCE OF EXCEPTIONAL CIRCUMSTANCES WHICH CLEARLY JUSTIFY AN
ABSTENTION IS DEMONSTRATED BY THE FACTS OF THIS CASE.  RESPONDENTS HAVE
CONSUMED CONSIDERABLE TIME AND EXPENSE IN PURSUING THEIR CLAIM THAT
THEIR PROPERTY HAS BEEN UNLAWFULLY TAKEN.  TO ORDER THEM OUT OF THE
FEDERAL COURT WOULD ACCOMPLISH NOTHING EXCEPT TO REQUIRE STILL ANOTHER
LAWSUIT, WITH ADDED DELAY AND EXPENSE FOR ALL PARTIES.  THIS WOULD BE A
PARTICULAR HARDSHIP FOR THE RESPONDENTS, WHO, BESIDES INCURRING THE
ADDED EXPENSE, WOULD ALSO SUFFER A FURTHER PROLONGED UNLAWFUL DENIAL OF
THE POSSESSION OF THEIR PROPERTY IF ULTIMATELY THEY PREVAIL AGAINST THE
COUNTY AND ITS LESSEE.  IT EXACTS A SEVERE PENALTY FROM CITIZENS FOR
THEIR ATTEMPT TO EXERCISE RIGHTS OF ACCESS TO THE FEDERAL COURTS
GRANTED THEM BY CONGRESS TO DENY THEM "THAT PROMPTNESS OF DECISION
WHICH IN ALL JUDICIAL ACTIONS IS ONE OF THE ELEMENTS OF JUSTICE." 
FORSYTH V. HAMMOND, 166 U.S. 506, 513. 

TWO OTHER CONTENTIONS RAISED BY THE COUNTY CAN BE DISPOSED OF
QUICKLY.  THE COUNTY ARGUES THAT THE BOARD OF VIEWERS HAS ESTABLISHED
JURISDICTION OVER THE LAND IN QUESTION AND THUS THE RULE APPLIES THAT
WHEN ONE COURT HAS ASSUMED JURISDICTION OVER A RES, NO OTHER COURT WILL
UNDERTAKE TO ENTER A JUDGMENT WHICH MIGHT BE INCOMPATIBLE WITH THE
DISPOSITION ULTIMATELY TO BE MADE BY THE FIRST COURT.  THE SHORT ANSWER
TO THIS CONTENTION IS THAT THE BOARD OF VIEWERS UNDER PENNSYLVANIA LAW
DOES NOT HAVE IN REM JURISDICTION OVER PROPERTY.  THIS IS APPARENT FROM
THE FACT THAT AN INDEPENDENT PROCEEDING LIES TO QUESTION THE VALIDITY
OF THE TAKING OF PROPERTY WHICH IS THE SUBJECT OF A BOARD OF VIEWERS'
PROCEEDING.  THE "DAMAGE" PROCEEDING IS SIMPLY AN IN PERSONAM SUIT TO
DETERMINE WHAT THE STATE MUST PAY FOR PROPERTY IT APPROPRIATES; IT DOES
NOT REQUIRE OR CONTEMPLATE CONTROL OF THE RES BY THE BOARD OF VIEWERS. 

THE COUNTY ALSO URGES THAT A DECISION BY THE DISTRICT COURT HOLDING
THE TAKING TO BE INVALID WOULD BE BARRED BY 28 U.S.C. SEC. 2283.  THAT

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

THE COUNTY'S THEORY IS THAT A HOLDING THAT THE TAKING WAS INVALID AND
AN ORDER RECONVEYING THE LAND TO RESPONDENTS WOULD BE RES JUDICATA ON
THE PARTIES IN THE BOARD OF VIEWERS' PROCEEDINGS.  SINCE THE COUNTY
WOULD NO LONGER HAVE THE LAND, THAT PROCEEDING TO DETERMINE THE
COMPENSATION DUE FOR THE TAKING OF THE LAND WOULD BE MOOTED.  BUT IT
HAS BEEN FIRMLY ESTABLISHED UNDER THE LANGUAGE OF SEC. 2283, WHICH HAS,
IN SUBSTANCE, BEEN IN FORCE SINCE FIRST ENACTED IN SEC. 5 OF THE ACT OF
MARCH 2, 1793, (FN7) THAT A FEDERAL SUIT IS NOT BARRED MERELY BECAUSE A
HOLDING IN THE CASE MIGHT BE RES JUDICATA ON THE SAME PARTIES
LITIGATING THE SAME ISSUE IN A STATE COURT AND THEREBY MOOT THE STATE
PROCEEDING.  KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, SETTLED THE
GOVERNING PRINCIPLE.  IN THAT CASE DIVERSITY JURISDICTION HAD BEEN
INVOKED TO ADJUDICATE AN ALLEGED BREACH OF CONTRACT.  THE DEFENDANT IN
THE FEDERAL COURT PROCEEDING HAD INITIATED A SUIT IN A STATE COURT TO
ADJUDICATE THE SAME ISSUE.  THE COURT OF APPEALS RULED THAT THE FEDERAL
DISTRICT COURT SHOULD HAVE ISSUED A REQUESTED INJUNCTION TO STAY THE
STATE COURT PROCEEDINGS.  THIS COURT HELD THAT A STATUTE SIMILAR TO
PRESENT SEC. 2283 BARRED THE INJUNCTION, BUT THAT THE DISTRICT COURT
COULD ADJUDICATE THE BREACH OF CONTRACT ISSUE EVEN THOUGH ITS HOLDING
WOULD BE DECISIVE OF THE STATE CASE.  THE COURT STATED THAT "THE RULE
...  HAS BECOME GENERALLY ESTABLISHED THAT WHERE THE ACTION FIRST
BROUGHT IS IN PERSONAM AND SEEKS ONLY A PERSONAL JUDGMENT, ANOTHER
ACTION FOR THE SAME CAUSE IN ANOTHER JURISDICTION IS NOT PRECLUDED." 
260 U.S., AT 230.  CONGRESS IN ENACTING SEC. 2283 EXPRESSED NO
INTENTION TO MODIFY THIS FIRMLY ESTABLISHED PRINCIPLE.  THUS THERE IS
NO REASON TO EXPAND THE PLAIN WORDING OF SEC. 2283 WHICH BARS ONLY
INJUNCTIONS DESIGNED TO STAY STATE COURT PROCEEDINGS.  THE RESPONDENTS'
SUIT IN THE DISTRICT COURT WAS FOR A JUDGMENT OF OUSTER.  THEY
ABANDONED THE CLAIM FOR AN INJUNCTION AGAINST THE STATE COURT AND
AGAINST THE COUNTY.  IT FOLLOWS THAT SEC. 2283 WOULD NOT BAR THE RELIEF
REQUESTED IN THE DISTRICT COURT.  AFFIRMED. 

FN1  THE PRAYER FOR INJUNCTIVE RELIEF WAS EXPRESSLY ABANDONED IN ORAL
ARGUMENT BEFORE THIS COURT. 

FN2  THE COURT OF APPEALS' CONCLUSION AS TO THE PENNSYLVANIA LAW IS
AMPLY SUPPORTED BY PENNSYLVANIA AUTHORITIES.  E.G., SPANN V. JOINT
BOARDS OF SCHOOL DIRECTORS, 381 PA.  338, 113 A.2D 281; PIONEER COAL
CO. V. CHERRYTREE & D.R. CO., 272 PA. 43, 116 A. 45; PHILADELPHIA CLAY
CO. V. YORK CLAY CO. 241 PA. 305, 88 A. 487.  SEE ALSO 14 STANDARD PA.
PRACTICE, C. 71, SECS. 230, 231, 233, 235. 

FN3  THE BASIS FOR FEDERAL COURT ADJUDICATION OF STATE EMINENT DOMAIN
PROCEEDINGS WAS ESTABLISHED EVEN BEFORE THIS.  IN SUYDAM V. BROADNAX,
14 PET. 67; UNION BANK V. JOLLY'S ADM'RS, 18 HOW.  503; AND HYDE V.
STONE, 20 HOW.  170, THIS COURT HELD THAT THE FEDERAL COURTS WOULD
DECIDE DIVERSITY CASES EVEN THOUGH THEY INVOLVED ISSUES, SUCH AS THE
VALIDITY OF A WILL, WHICH WERE PECULIARLY WITHIN THE STATE'S COMPETENCE
TO REGULATE.  THE PRINCIPLES WERE CLEARLY SETTLED IN GAINES V. FUENTES,
92 U.S. 10.  THAT CASE CONCERNED A SUIT "TO ANNUL A WILL  ...  AS A
MUNIMENT OF TITLE, AND TO LIMIT THE OPERATION OF THE DECREE ADMITTING
IT TO PROBATE."  92 U.S., AT 20.  THE CASE, ORIGINALLY BROUGHT IN STATE
COURT, WAS REMOVED TO A FEDERAL COURT ON THE BASIS OF DIVERSITY OF
CITIZENSHIP.  THIS COURT UPHELD THE REMOVAL ON THE GROUND THAT,
ALTHOUGH THE STATE HAD AUTHORITY TO ESTABLISH THE SUBSTANTIVE LAW
RELEVANT TO THE VALIDITY OF WILLS AND THE PROCEDURE BY WHICH WILLS WERE
TO BE CONTESTED, IF, UNDER THE SCHEME DEVELOPED BY THE STATE, A
CONTROVERSY AROSE BETWEEN CITIZENS OF DIFFERENT STATES, THE FEDERAL
COURTS WOULD ADJUDICATE THAT CONTROVERSY.  THESE PRINCIPLES WERE
FURTHER ARTICULATED IN CHICOT COUNTY V. SHERWOOD, 148 U.S. 529.  THIS
COURT HAS OFTEN UPHELD FEDERAL COURT DETERMINATIONS OF STATE LAW
CONCERNING WILLS, E.G., ELLIS V. DAVIS, 109 U.S. 485; HESS V. REYNOLDS,
113 U.S. 73, EVEN WHEN THE STATE ITSELF CLAIMED THE DECEDENT'S PROPERTY
BY ESCHEAT, MCCLELLAN V. CARLAND, 217 U.S. 268. 

FN4  E.G., WABASH R. CO. V. DUNCAN, 170 F.2D 38; FRANZEN V. CHICAGO,
M. & ST. P.R.  CO. 278 F. 370; IN RE BENSEL, 206 F. 369; BROADMOOR LAND
CO. V. CURR, 142 F. 421; SOUTH DAKOTA CENT. R. CO. V. CHICAGO, M. & ST.
P.R. CO., 141 F. 578; CHICAGO, R.I.&P.R.  CO. V. 10 PARCELS OF REAL
ESTATE LOCATED IN MADISON COUNTY, IOWA, 159 F. SUPP. 140; WILLIAMS LIVE
STOCK CO. V. DELAWARE, L.&W.R. CO., 285 F. 795; DEEPWATER R. CO. V.
WESTERN POCAHONTAS COAL & LUMBER CO., 152 F. 824; UNION TERMINAL R. CO.
V. CHICAGO, B.&Q.R. CO., 119 F. 209; KIRBY V. CHICAGO & N.W.R. CO., 106
F. 551; SUGAR CREEK, P.B.&P.C.R. CO. V. MCKELL, 75 F. 34; KANSAS CITY &
T.R. CO. V. INTERSTATE LUMBER CO., 37 F. 2; MINERAL RANGE R. CO. V.
DETROIT & LAKE SUPERIOR COPPER CO., 25 F. 515; CITY OF CHICAGO V.
HUTCHISON, 15 F. 129.  CF. KAW VALLEY DRAINAGE DISTRICT V. METROPOLITAN
WATER CO., 186 F. 315; FISHBLATT V. ATLANTIC CITY, 174 F. 196; ADAMS V.
CITY OF WOBURN, 174 F. 192; KANSAS CITY V. HENNEGAN, 152 F. 249.   SEE
ALSO 7 MOORE'S FEDERAL PRACTICE (2D ED.)  SEC.  71A.11; 6 NICHOLS ON
EMINENT DOMAIN (3D ED.)  SEC.  27.8(2). 

FN5  NOTE TO SUBDIVISION (K), NOTES TO RULE 71A OF ADVISORY COMMITTEE
ON RULES, PRINTED AT 28 U.S.C.A. RULE 71A (1958 POCKET PART). 

FN6  SEE NOTES TO RULE 71A OF ADVISORY COMMITTEE ON RULES, NOTE 8,
SUPRA; SEE ALSO 7 MOORE'S FEDERAL PRACTICE (2D ED.)  SEC.  71A.120; 64
YALE L.J. 600. 

FN7  THE LANGUAGE OF 28 U.S.C. SEC. 2283 HAS BEEN RETAINED
SUBSTANTIALLY UNCHANGED FROM ITS ORIGINAL FORM IN SEC. 5 OF THE ACT OF
MARCH 2, 1793, 1 STAT. 334-335.  FOR A DISCUSSION OF ITS ORIGIN AND
HISTORY, SEE TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
FRANKFURTER, AND MR. JUSTICE HARLAN JOIN, DISSENTING. 

THE COURT SAYS THAT UNDER THE PECULIAR FACTS OF THIS CASE THE TRIAL
JUDGE HAS ABUSED HIS DISCRETION IN ABSTAINING FROM TRYING THE ISSUE
INVOLVED HERE, WHICH IS PRESENTLY PENDING IN A PREVIOUSLY FILED STATE
CASE BETWEEN THE SAME PARTIES.  I SEE NOTHING IN THE FACTS THAT REVEALS
ANY CLEAR ABUSE OF DISCRETION.  IN FACT, THE DISRUPTION OF THE STATE'S
PROCESSES BY THE REFUSAL OF THE COURT IN THE CIRCUMSTANCES OF THIS CASE
TO PERMIT THE APPLICATION OF MODERN BUSINESSLIKE PROCEDURES IN THE
ADMINISTRATION OF THE FEDERAL DIVERSITY JURISDICTION REQUIRES MY
DISSENT. 

ALLEGHENY COUNTY, A SUBDIVISION OF THE STATE OF PENNSYLVANIA, TOOK
ACTION UNDER ITS STATE LAW TO ACQUIRE PROPERTY OWNED BY RESPONDENTS
WHICH WAS ALLEGEDLY NECESSARY FOR THE ENLARGEMENT OF ITS GREATER
PITTSBURGH AIRPORT.  THE RESPONDENTS MADE NO EFFORT TO REMOVE THAT
ACTION TO THE FEDERAL COURT.  IF THAT HAD BEEN DONE, THE ENTIRE CASE
WOULD HAVE BEEN SUBJECT TO TRIAL IN THE FEDERAL COURT.  INSTEAD,
HOWEVER, THE RESPONDENTS APPEARED IN THE STATE CASE AND CONTESTED THE
ISSUE OF DAMAGES FOR THE TAKING, BUT RAISED NO OBJECTION WHATEVER TO
ITS VALIDITY.  BOTH PARTIES APPEALED FROM AN AWARD OF $52,644 IN
DAMAGES AND DEMANDED A TRIAL DE NOVO IN THE STATE'S COURT OF COMMON
PLEAS.  THE COUNTY THEREUPON ENTERED UPON THE PROPERTY AND BEGAN ITS
IMPROVEMENT.  A YEAR LATER RESPONDENTS FILED THIS SUIT IN THE FEDERAL
COURT ATTACKING THE VALIDITY OF THE COUNTY'S TAKING IN THE STATE SUIT. 
(FN1)  THE COURT REQUIRES THE COUNTY TO LITIGATE THAT SOLE ISSUE IN THE
FEDERAL COURT WHILE THE STATE COURT HOLDS IN ABEYANCE THE ORIGINAL CASE
INVOLVING THE TAKING AS WELL AS THE DAMAGES THEREFOR. 

THUS THE STATE SUIT IS SPLIT; THE VALIDITY OF THE TAKING BEING
INVOLVED IN THE FEDERAL COURT AS WELL AS THE STATE PROCEEDING, WHILE
THE AMOUNT OF DAMAGES REMAINS FOR THE STATE COURT ALONE.  ADMITTEDLY
THE FEDERAL COURT CANNOT OBTAIN JURISDICTION OVER THE LATTER.  AS A
RESULT, THE COUNTY NOW HAS TWO LAWSUITS ON ITS HANDS, ONE, INVOLVING
HALF OF ITS STATE CASE, WILL BE TRIED IN THE FEDERAL COURT, WHILE THE
REMAINDER PENDS IN THE STATE COURT.  IF IT FINALLY PREVAILS IN THE
FEDERAL COURT, AFTER TWO OR THREE MORE YEARS OF DELAY INCIDENT TO TRIAL
AND APPEAL, STILL IT MUST GO BACK TO ITS STATE CASE AND TRY THE ISSUE
OF DAMAGES.  IF THE COUNTY LOSES IN THE FEDERAL COURT, IT MUST
NEVERTHELESS GO BACK TO THE STATE COURT AND START ALL OVER AGAIN WITH A
NEW ACTION OR AN AMENDMENT OF THE OLD ONE.  THIS IS TRUE BECAUSE THE
PLANS, AS SHOWN IN THE RECORD, INDICATE CLEARLY THAT THE COUNTY WILL BE
OBLIGED TO TAKE RESPONDENTS' PROPERTY BECAUSE IT IS SITUATED ADJACENT
TO THE OLD ENTRANCE TO THE AIRPORT AND WOULD BE NECESSARY FOR THE
PROPOSED ENLARGEMENT.  THE LATTER COURSE WOULD INEVITABLY LEAD TO
GREATER DAMAGES, AS WELL AS ADDITIONAL YEARS OF DELAY, ALL OF WHICH
WOULD BE OCCASIONED BY THE ACTION TODAY.    THE COURT DESCRIBES THIS
NEEDLESS MERRY-GO-ROUND OF TECHNICAL PROCEDURES AS PREVENTING "ADDED
EXPENSE AND  ...  FURTHER PROLONGED UNLAWFUL DENIAL OF THE POSSESSION
OF THEIR (RESPONDENTS') PROPERTY  ...  ."  OBVIOUSLY JUST THE OPPOSITE
IS TRUE.  THE RESPONDENTS, BY NOT REMOVING THE CASE TO THE FEDERAL
COURT, BUT RATHER BY WAITING A YEAR BEFORE FILING THE PRESENT SUIT,
HAVE NOW DELAYED THE COUNTY FOR OVER THREE YEARS, (FN2) AND BID FAIR TO
EXTEND THAT PERIOD FOR AT LEAST TWO MORE UNDER THE RULING OF THIS
COURT.  ON THE OTHER HAND, IF THE COURT REQUIRED RESPONDENTS TO PROCEED
IN THE STATE SUIT, ALL OF THE ISSUES BETWEEN THE PARTIES WOULD BE
SETTLED IN THE ONE SUIT, EVEN IF RESPONDENTS PERSISTED - AS THE COURT
HOLDS IS THEIR RIGHT - IN FILING A SEPARATE SUIT IN THE STATE COURT
OVER THE VALIDITY OF THE TAKING.  THAT SUIT COULD EASILY BE
CONSOLIDATED WITH THE ORIGINAL CASE, AND THE VALIDITY OF THE TAKING AS
WELL AS THE DAMAGES THEREFOR COULD BE SETTLED AT ONE TRIAL.  THIS, OF
COURSE, CANNOT BE DONE WHEN ONE OF THE CASES IS IN THE FEDERAL COURT
AND THE OTHER IN THE STATE.  THIS POINTS UP THE FALLACY OF THE COURT'S
CONCLUSION THAT "CONSIDERATIONS OF COMITY ARE SATISFIED IF THE FEDERAL
DISTRICT COURT ACTS TOWARD THE PENDING STATE DAMAGE PROCEEDING IN THE
SAME MANNER AS WOULD A STATE COURT."  IT IS, INDEED, A POOR WAY TO
ADMINISTER JUSTICE, ESPECIALLY WHERE A SUBDIVISION OF THE STATE IS
INVOLVED. 

IN SHORT, I SAY THAT UNDER THE PECULIAR FACTS OF THIS CASE THE
"EXCEPTIONAL CIRCUMSTANCES" OF WHICH THE MAJORITY SPEAKS ARE PRESENT. 
AN "ORDER TO THE PARTIES TO REPAIR TO THE STATE COURT WOULD CLEARLY
SERVE AN IMPORTANT COUNTERVAILING INTEREST," NAMELY, THE ORDERLY AND
BUSINESSLIKE ADMINISTRATION OF JUSTICE, AS WELL AS THE COMITY DUE
PENNSYLVANIA'S COURTS. 

AS TO THE LATTER CONSIDERATION, THE COURT BOTTOMS ITS DECISION TO
MAKE THE COUNTY SPLIT ITS CASE BETWEEN THE TWO JURISDICTIONS ON THE
PROPOSITION THAT RESPONDENTS "ABANDONED THE CLAIM FOR AN INJUNCTION
AGAINST THE STATE COURT AND AGAINST THE COUNTY."  BUT THE REALITY OF
THE SITUATION IS THAT THE STATE COURT, WHICH HAS ALREADY ABSTAINED FOR
THREE YEARS AT THE URGING OF RESPONDENTS MAY NOW DEICDE THAT IT SHOULD
PROCEED TO HEAR AND DETERMINE BOTH THE ISSUES OF VALIDITY AND DAMAGES
WHICH ARE AND HAVE BEEN PENDING IN THE STATE CASE.  IF IT DID SO, THERE
WOULD RESULT AN UNSEEMLY RACE BETWEEN THE FORUMS AND A HEAD-ON
COLLISION BETWEEN THE STATE AND FEDERAL COURTS.  THE LATTER WOULD BE
MOVING BY WAY OF EJECTMENT AND THE FORMER BY WAY OF CONDEMNATION OVER
THE SAME PROPERTY AND INVOLVING THE SAME PARTIES.  STILL, SINCE, AS THE
MAJORITY SAYS, "THE PLAIN WORDING OF SEC. 2283 ...  BARS  ...
INJUNCTIONS," THIS UNSEEMLY SPECTACLE COULD NOT BE STOPPED AND WOULD
RESULT IN "NEEDLESS FRICTION WITH STATE POLICIES."  RAILROAD COMM'N V.
PULLMAN CO., 312 U.S. 496, 500 (1941).  IN VIEW OF THESE CIRCUMSTANCES,
PECULIAR TO THIS CASE, THERE IS NOTHING HERE TO SHOW THAT THE TRIAL
COURT CLEARLY ABUSED ITS DISCRETION AND I WOULD THEREFORE REVERSE THE
COURT OF APPEALS AND REINSTATE THE JUDGMENT OF THE TRIAL JUDGE. 

FN1  THE GROUNDS ARE OBVIOUSLY FRIVOLOUS.  RESPONDENTS URGE THAT THE
COUNTY'S LEASING TO ITS CONTRACTOR OF A STRIP 75' X 150' OUT OF THE 8
ACRES CONDEMNED AMOUNTS TO AN ABANDONMENT OF ITS TAKING FOR "PUBLIC
USE."  THE RECORD SHOWS THAT THE LEASE WAS MADE IN ORDER TO PERMIT THE
CONTRACTOR TO USE THIS SMALL STRIP FOR STORAGE AND CONCENTRATION OF
SUPPLIES OF THE CONTRACTOR IN THE PERFORMANCE OF HIS DUTIES UNDER THE
CONTRACT WITH THE COUNTY FOR THE IMPROVEMENT AND ENLARGEMENT OF THE
GREATER PITTSBURGH AIRPORT. 

FN2  THE RECORD DOES NOT REVEAL WHETHER THE COUNTY HAS PROCEEDED WITH
ITS IMPROVEMENTS OR NOT.  IF IT HAS NOT, THE RESPONDENTS' ACTION IN
FILING THIS SUIT, AND WHICH THE COURT APPROVES, HAS DELAYED A MUCH
NEEDED IMPROVEMENT FOR OVER THREE YEARS.  IF IT HAS PROCEEDED TO
COMPLETE THE IMPROVEMENT, THE COUNTY HAS STILL BEEN DELAYED IN
OBTAINING FINAL TITLE TO THE PROPERTY FOR ALL THESE YEARS, ALL BECAUSE
OF THIS FRIVOLOUS ACTION OF THE RESPONDENTS. 
..END :




















NATIONAL LABOR RELATIONS BOARD V. CABOT CARBON CO. 360 U.S. 203 


NO. 329.  ARGUED MARCH 24, 1959.  - DECIDED JUNE 8, 1959.  - 256 F.2D
281, REVERSED. 


RESPONDENTS ORGANIZED AN "EMPLOYEE COMMITTEE" AT EACH OF THEIR
NUMEROUS PLANTS FOR THE STATED PURPOSES OF MEETING REGULARLY WITH
MANAGEMENT TO CONSIDER AND DISCUSS PROBLEMS OF MUTUAL INTEREST,
INCLUDING GRIEVANCES, AND OF HANDLING GRIEVANCES AT NONUNION PLANTS AND
DEPARTMENTS.  IN PRACTICE, SUCH COMMITTEES ALSO MADE PROPOSALS AND
REQUESTS RESPECTING SUCH MATTERS AS SENIORITY, JOB CLASSIFICATION, JOB
BIDDING, WORKING SCHEDULES, HOLIDAYS, VACATIONS, SICK LEAVE, A MERIT
SYSTEM, WAGE CORRECTIONS, AND IMPROVEMENT OF WORKING CONDITIONS AND
FACILITIES.  A "CENTRAL COMMITTEE" CONSISTING OF THE CHAIRMEN OF THE
SEVERAL PLANT COMMITTEES ALSO MET ANNUALLY AT THE HEAD OFFICE WITH
RESPONDENTS' DIRECTOR OF INDUSTRIAL RELATIONS AND MADE PROPOSALS AND
REQUESTS WITH RESPECT TO MATTERS COVERING NEARLY THE WHOLE SCOPE OF THE
EMPLOYMENT RELATIONSHIP WHICH ARE COMMONLY CONSIDERED AND DEALT WITH IN
COLLECTIVE BARGAINING.  AFTER APPROPRIATE ADMINISTRATIVE PROCEEDINGS,
THE NATIONAL LABOR RELATIONS BOARD FOUND THAT BOTH THE "EMPLOYEE
COMMITTEES" AND THE "CENTRAL COMMITTEE" WERE "LABOR ORGANIZATIONS"
WITHIN THE MEANING OF SEC. 2(5) OF THE NATIONAL LABOR RELATIONS ACT AND
THAT RESPONDENTS HAD DOMINATED, INTERFERED WITH, AND SUPPORTED THEM IN
VIOLATION OF SEC. 8(A)(2); AND IT ISSUED AN APPROPRIATE CEASE AND
DESIST ORDER.  HELD:  THE ORDER IS SUSTAINED.  PP. 204-218. 

1.  SUCH COMMITTEES ARE "LABOR ORGANIZATIONS" WITHIN THE MEANING OF
SEC. 2(5) OF THE ACT.  PP. 210-218. 

(A)  SINCE SUCH COMMITTEES EXIST, IN PART AT LEAST, FOR THE PURPOSE
OF "DEALING WITH EMPLOYERS CONCERNING GRIEVANCES  ...  OR CONDITIONS OF
WORK," THEY ARE NOT EXCLUDED FROM THE DEFINITION OF "LABOR
ORGANIZATIONS" IN SEC. 2(5) SIMPLY BECAUSE THEY DO NOT "BARGAIN WITH"
EMPLOYERS IN THE USUAL CONCEPT OF COLLECTIVE BARGAINING.  PP. 210-213. 

(B)  CONSIDERATION OF THE DECLARED PURPOSES AND ACTUAL FUNCTIONS OF
THESE COMMITTEES SHOWS THAT THEY EXISTED FOR THE PURPOSE, IN PART AT
LEAST, OF "DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR
DISPUTES, WAGES, RATES OF PAY, HOURS OF WORK, OR CONDITIONS OF WORK,"
AND THAT, THEREFORE, THEY ARE "LABOR ORGANIZATIONS" WITHIN THE MEANING
OF SEC.  2(5).  PP. 213-215. 

(C)  THERE IS NOTHING IN THE 1947 AMENDMENT OF SEC. 9(A) OR ITS
LEGISLATIVE HISTORY TO INDICATE THAT CONGRESS THEREBY ELIMINATED, OR
INTENDED TO ELIMINATE, SUCH EMPLOYEE COMMITTEES FROM THE TERM "LABOR
ORGANIZATION" AS DEFINED IN SEC. 2(5) AND USED IN SEC.  8(A)(2), OR
THAT AUTHORIZES AN EMPLOYER TO ENGAGE IN "DEALING WITH" AN EMPLOYER
DOMINATED "LABOR ORGANIZATION" AS THE REPRESENTATIVE OF HIS EMPLOYEES
CONCERNING THEIR GRIEVANCES.  PP. 215-218. 

2.  SINCE THE BOARD'S ORDER DOES NOT FORBID EMPLOYERS AND EMPLOYEES
FROM DISCUSSING MATTERS OF MUTUAL INTEREST CONCERNING THE EMPLOYMENT
RELATIONSHIP BUT MERELY PRECLUDES THE EMPLOYERS FROM DOMINATING,
INTERFERING WITH OR SUPPORTING THE EMPLOYEE COMMITTEES, IT DOES NOT
ABRIDGE FREEDOM OF SPEECH IN VIOLATION OF THE FIRST AMENDMENT.  P.
218. 

NATIONAL LABOR RELATIONS BOARD V. CABOT CARBON CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IN THIS CASE IS WHETHER "EMPLOYEE
COMMITTEES" ESTABLISHED AND SUPPORTED BY RESPONDENTS AT EACH OF THEIR
SEVERAL PLANTS FOR THE STATED PURPOSES OF MEETING REGULARLY WITH
MANAGEMENT TO CONSIDER AND DISCUSS PROBLEMS OF MUTUAL INTEREST,
INCLUDING GRIEVANCES, AND OF HANDLING "GRIEVANCES AT NONUNION PLANTS
AND DEPARTMENTS," ARE, IN THE LIGHT OF THEIR DECLARED PURPOSES AND
ACTUAL PRACTICES, "LABOR ORGANIZATIONS" WITHIN THE MEANING OF SEC. 2(5)
OF THE NATIONAL LABOR RELATIONS ACT.  (FN1) 

RESPONDENTS ARE AFFILIATED CORPORATIONS UNDER THE SAME GENERAL
MANAGEMENT AND MAINTAIN THEIR PRINCIPAL OFFICE AT PAMPA, TEXAS.  THEY
ARE, AND FOR MANY YEARS HAVE BEEN, ENGAGED IN OPERATING A NUMBER OF
PLANTS, PRINCIPALLY IN TEXAS AND LOUISIANA, PRIMARILY FOR THE PURPOSES
OF MANUFACTURING AND SELLING CARBON BLACK AND OIL FIELD EQUIPMENT. 
PURSUANT TO A SUGGESTION OF THE WAR PRODUCTION BOARD IN 1943,
RESPONDENTS DECIDED TO ESTABLISH AN EMPLOYEE COMMITTEE AT EACH OF THEIR
PLANTS.  TO THAT END, RESPONDENTS PREPARED, IN COLLABORATION WITH
EMPLOYEE REPRESENTATIVES FROM THEIR SEVERAL PLANTS, A SET OF BYLAWS,
STATING THE PURPOSES, DUTIES AND FUNCTIONS OF THE PROPOSED EMPLOYEE
COMMITTEES, FOR TRANSMITTAL TO AND ADOPTION BY THE EMPLOYEES IN
ESTABLISHING SUCH COMMITTEES.  THE BYLAWS WERE ADOPTED BY A MAJORITY OF
EMPLOYEES AT EACH PLANT AND BY RESPONDENTS, AND, THUS, THE EMPLOYEE
COMMITTEES WERE ESTABLISHED.  THOSE BYLAWS, AND CERTAIN RELATED COMPANY
RULES, WERE LATER PUBLISHED BY RESPONDENTS IN A COMPANY MANUAL CALLED
"THE GUIDE," AND ARE STILL IN EFFECT. 

IN ESSENCE, THE BYLAWS STATE:  THAT THE PURPOSE OF THE COMMITTEES IS
TO PROVIDE A PROCEDURE FOR CONSIDERING EMPLOYEES' IDEAS AND PROBLEMS OF
MUTUAL INTEREST TO EMPLOYEES AND MANAGEMENT; (FN2) THAT EACH PLANT
COMMITTEE SHALL CONSIST OF A STATED NUMBER OF EMPLOYEES (RANGING FROM 2
TO 3) WHOSE TERMS SHALL BE ONE YEAR, AND THAT RETIRING MEMBERS WITH THE
HELP OF PLANT CLERKS, WILL CONDUCT THE NOMINATION AND ELECTION OF THEIR
SUCCESSORS; THAT EACH PLANT COMMITTEE SHALL MEET WITH THE PLANT
MANAGEMENT AT REGULAR MONTHLY MEETINGS AND AT ALL SPECIAL MEETINGS
CALLED BY MANAGEMENT, SHALL ASSIST THE PLANT MANAGEMENT IN SOLVING
PROBLEMS OF MUTUAL INTEREST, AND THAT TIME SO SPENT WILL BE CONSIDERED
TIME WORKED; AND THAT "IT SHALL BE THE COMMITTEE'S RESPONSIBILITY TO:
...  HANDLE GRIEVANCES AT NONUNION PLANTS AND DEPARTMENTS ACCORDING TO
PROCEDURE SET UP FOR THESE PLANTS AND DEPARTMENTS."  (FN3) 

IN NOVEMBER 1954, INTERNATIONAL CHEMICAL WORKERS UNION, AFL-CIO,
FILED WITH THE NATIONAL LABOR RELATIONS BOARD, AND LATER SEVERAL TIMES
AMENDED, AN UNFAIR LABOR PRACTICE CHARGE AGAINST RESPONDENTS, ALLEGING,
IN PART, THAT RESPONDENTS WERE UNLAWFULLY DOMINATING, INTERFERING WITH
AND SUPPORTING LABOR ORGANIZATIONS, CALLED EMPLOYEE COMMITTEES, AT
THEIR SEVERAL PLANTS.  THEREAFTER THE BOARD, IN APRIL 1956, ISSUED A
COMPLAINT AGAINST RESPONDENTS UNDER SEC. 10(B) OF THE ACT (29 U.S.C.
SEC. 160(B)) ALLEGING, INTER ALIA, THAT THE EMPLOYEE COMMITTEES WERE
LABOR ORGANIZATIONS WITHIN THE MEANING OF SEC. 2(5) (SEE NOTE 1), AND
THAT RESPONDENTS, SINCE MAY 1954, HAD DOMINATED, INTERFERED WITH, AND
SUPPORTED THE COMMITTEES IN VIOLATION OF SEC. 8(A)(2) OF THE ACT. 
(FN4) 

AFTER A HEARING, THE TRIAL EXAMINER ISSUED HIS INTERMEDIATE REPORT
CONTAINING DETAILED FINDINGS OF FACT.  THE RELEVANT FINDINGS, MAINLY
BASED ON UNDISPUTED EVIDENCE, MAY BE SUMMARIZED AS FOLLOWS: THE
COMMITTEES' BYLAWS WERE PREPARED AND ADOPTED IN THE MANNER, AND CONTAIN
THE PROVISIONS, ABOVE STATED.  DURING THE PERIOD HERE INVOLVED (FROM
MAY 1954 TO THE DATE OF THE HEARING BEFORE THE BOARD IN JUNE 1956), THE
EMPLOYEE COMMITTEES, IN ADDITION TO CONSIDERING AND DISCUSSING WITH
RESPONDENTS' PLANT OFFICIALS PROBLEMS OF THE NATURE COVERED BY THE
BYLAWS, MADE AND DISCUSSED PROPOSALS AND REQUESTS RESPECTING MANY OTHER
ASPECTS OF THE EMPLOYEE RELATIONSHIP, INCLUDING SENIORITY, JOB
CLASSIFICATIONS, JOB BIDDING, MAKEUP TIME, OVERTIME RECORDS, TIME
CARDS, A MERIT SYSTEM, WAGE CORRECTIONS, WORKING SCHEDULES, HOLIDAYS,
VACATIONS, SICK LEAVE, AND IMPROVEMENT OF WORKING FACILITIES AND
CONDITIONS.  RESPONDENTS' PLANT OFFICIALS PARTICIPATED IN THOSE
DISCUSSIONS AND IN SOME INSTANCES GRANTED THE COMMITTEES' REQUESTS. 
(FN5)  ALTHOUGH NOT PROVIDED FOR IN THE BYLAWS, A "CENTRAL COMMITTEE,"
CONSISTING OF THE CHAIRMAN OF THE SEVERAL PLANT COMMITTEES, MET
ANNUALLY WITH RESPONDENTS' DIRECTOR OF INDUSTRIAL RELATIONS IN PAMPA,
TEXAS, WHERE, DURING THE 1955 AND 1956 MEETINGS, THE CENTRAL COMMITTEE
MADE PROPOSALS AND REQUESTS WITH RESPECT TO MANY MATTERS COVERING
NEARLY THE WHOLE SCOPE OF THE EMPLOYMENT RELATIONSHIP.  (FN6)  THE
DIRECTOR OF INDUSTRIAL RELATIONS DISCUSSED THOSE PROPOSALS AND
REQUESTS, THEIR FEASIBILITY AND ECONOMIC CONSEQUENCES FROM RESPONDENTS'
POINT OF VIEW, AND SOUGHT TO REACH SOME SOLUTION.  IN SOME INSTANCES HE
EXPRESSED APPROVAL OF REQUESTS OR PROMISED TO SEE WHAT COULD BE DONE
TOWARD MEETING THEM, IN OTHER INSTANCES HE SUGGESTED THAT THE MATTER BE
TAKEN UP WITH LOCAL MANAGEMENT, AND IN STILL OTHER INSTANCES HE
REJECTED THE PROPOSALS AND REQUESTS AND EXPLAINED HIS REASONS FOR DOING
SO. 

THE TRIAL EXAMINER ALSO FOUND THAT THE EMPLOYEE COMMITTEES HAVE NO
MEMBERSHIP REQUIREMENTS, COLLECT NO DUES AND HAVE NO FUNDS; THAT PLANT
CLERKS ASSIST THE COMMITTEES IN CONDUCTING THEIR ELECTIONS AND DO ALL
OF THEIR CLERICAL WORK; AND THAT RESPONDENTS PAY ALL OF THE NECESSARY
EXPENSES OF THE COMMITTEES.  NONE OF THE COMMITTEES HAS EVER ATTEMPTED
TO NEGOTIATE A COLLECTIVE BARGAINING CONTRACT WITH RESPONDENTS.  FROM
TIME TO TIME THE BOARD HAS CERTIFIED INDEPENDENT LABOR ORGANIZATIONS AS
THE EXCLUSIVE BARGAINING AGENTS FOR CERTAIN BARGAINING UNITS OF
EMPLOYEES IN APPROXIMATELY ONE-THIRD OF RESPONDENTS' PLANTS, AND, AS
SUCH AGENTS FOR THOSE BARGAINING UNITS, THE RESPECTIVE CERTIFIED LABOR
ORGANIZATIONS HAVE ENTERED INTO COLLECTIVE BARGAINING CONTRACTS WITH
RESPONDENTS WHICH, AS THEY MAY HAVE BEEN AMENDED, ARE STILL IN EFFECT. 
SINCE THE RESPECTIVE DATES OF THOSE COLLECTIVE BARGAINING CONTRACTS THE
CERTIFIED LABOR ORGANIZATIONS AND THE EMPLOYEE COMMITTEES HAVE
COEXISTED IN THOSE PLANTS, BUT THE FUNCTIONS OF THOSE EMPLOYEE
COMMITTEES HAVE GENERALLY BEEN REDUCED TO PLANT EFFICIENCY, PRODUCTION
PROMOTION AND THE HANDLING OF GRIEVANCES FOR EMPLOYEES WHO ARE NOT
INCLUDED IN THE BARGAINING UNITS. 

UPON THESE FINDINGS THE TRIAL EXAMINER CONCLUDED IN HIS INTERMEDIATE
REPORT THAT THE EMPLOYEE COMMITTEES AND THE CENTRAL COMMITTEE ARE LABOR
ORGANIZATIONS WITHIN THE MEANING OF SEC. 2(5), AND THAT DURING THE
PERIOD HERE INVOLVED RESPONDENTS DOMINATED, INTERFERED WITH, AND
SUPPORTED THOSE LABOR ORGANIZATIONS IN VIOLATION OF SEC. 8(A)(2) (SEE
NOTE 4).  HE THEREFORE RECOMMENDED THAT RESPONDENTS BE ORDERED TO CEASE
SUCH CONDUCT, AND TO WITHDRAW ALL RECOGNITION FROM, AND COMPLETELY
DISESTABLISH, THE COMMITTEES "AS THE REPRESENTATIVE OF ANY OF THEIR
EMPLOYEES FOR THE PURPOSE OF DEALING WITH RESPONDENTS CONCERNING
GRIEVANCES, LABOR DISPUTES, WAGES, RATES OF PAY, HOURS OF EMPLOYMENT,
OR CONDITIONS OF WORK."  THE BOARD ADOPTED THE FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS OF THE TRIAL EXAMINER AND ENTERED ITS ORDER
ACCORDINGLY.  117 N.L.R.B. 1633. 

RESPONDENTS THEN PETITIONED THE COURT OF APPEALS TO REVIEW AND VACATE
THE BOARD'S FINDINGS AND ORDER, AND THE BOARD'S ANSWER SOUGHT
ENFORCEMENT OF ITS ORDER.  THE COURT OF APPEALS DENIED ENFORCEMENT OF
THE BOARD'S ORDER AND SET IT ASIDE.  256 F.2D 281.  IT FOUND THAT
RESPONDENTS DOMINATED AND SUPPORTED THE COMMITTEES BUT HELD THAT THEY
WERE NOT "LABOR ORGANIZATIONS" WITHIN THE MEANING OF SEC. 2(5) (SEE
NOTE 1) BECAUSE IT THOUGHT (A) THAT THE TERM "DEALING WITH," AS USED IN
THAT SECTION, MEANS "BARGAINING WITH," AND THAT THESE COMMITTEES
"AVOIDED THE USUAL CONCEPT OF COLLECTIVE BARGAINING," AND (B) THAT THE
PROVISIONS AND LEGISLATIVE HISTORY OF THE 1947 AMENDMENT OF SEC. 9(A)
OF THE ACT SHOW THAT CONGRESS, IN EFFECT, EXCLUDED SUCH EMPLOYEE
COMMITTEES FROM THE DEFINITION OF "LABOR ORGANIZATION" CONTAINED IN
SEC. 2(5).  256 F.2D, AT 285-289.  BECAUSE OF AN ASSERTED CONFLICT OF
THAT DECISION WITH THE DECISIONS OF OTHER COURTS OF APPEALS, AND OF THE
IMPORTANCE OF THE MATTER TO THE PROPER ADMINISTRATION OF THE NATIONAL
LABOR RELATIONS ACT, WE GRANTED CERTIORARI.  358 U.S. 863. 

WE TURN FIRST TO THE COURT OF APPEALS' HOLDING THAT AN EMPLOYEE
COMMITTEE WHICH DOES NOT "BARGAIN WITH" EMPLOYERS IN "THE USUAL CONCEPT
OF COLLECTIVE BARGAINING" DOES NOT ENGAGE IN "DEALING WITH" EMPLOYERS,
AND IS THEREFORE NOT A "LABOR ORGANIZATION" WITHIN THE MEANING OF SEC.
2(5).  OUR STUDY OF THE MATTER HAS CONVINCED US THAT THERE IS NOTHING
IN THE PLAIN WORDS OF SEC. 2(5), IN ITS LEGISLATIVE HISTORY, OR IN THE
DECISIONS CONSTRUING IT, THAT SUPPORTS THAT CONCLUSION. 

"EMPLOYEE REPRESENTATION COMMITTEE OR PLAN  ...  WHICH EXISTS FOR THE
PURPOSE, IN WHOLE OR IN PART, OF DEALING WITH EMPLOYERS CONCERNING
GRIEVANCES, LABOR DISPUTES, WAGES, RATES OF PAY, HOURS OF EMPLOYMENT,
OR CONDITIONS OF WORK."  (FN7)  CERTAINLY NOTHING IN THAT SECTION
INDICATES THAT THE BROAD TERM "DEALING WITH" IS TO BE READ AS
SYNONYMOUS WITH THE MORE LIMITED TERM "BARGAINING WITH."  SEE, E.G.,
LABOR BOARD V. JAS. H. MATTHEWS & CO., 156 F.2D 706, 708, AND INDIANA
METAL PRODUCTS CORP. V. LABOR BOARD, 202 F.2D 613, 620-621.  THE
LEGISLATIVE HISTORY OF SEC. 2(5) STRONGLY CONFIRMS THAT CONGRESS DID
NOT UNDERSTAND OR INTEND THOSE TERMS TO BE SYNONYMOUS.  WHEN THE
ORIGINAL PRINT OF THE WAGNER BILL (S. 1958) WAS BEING CONSIDERED IN THE
SENATE, THE THEN SECRETARY OF LABOR PROPOSED AN AMENDMENT TO SEC. 2(5)
WHICH, IF ADOPTED, WOULD HAVE GIVEN THAT SECTION THE MEANING NOW
ASCRIBED TO IT BY THE COURT OF APPEALS.  THE PROPOSAL WAS THAT THE TERM
"BARGAINING COLLECTIVELY" BE SUBSTITUTED FOR THE TERM "DEALING."  (FN8)
BUT THE PROPOSAL WAS NOT ADOPTED.  (FN9)  IT IS THEREFORE QUITE CLEAR
THAT CONGRESS, BY ADOPTING THE BROAD TERM "DEALING" AND REJECTING THE
MORE LIMITED TERM "BARGAINING COLLECTIVELY," DID NOT INTEND THAT THE
BROAD TERM "DEALING WITH" SHOULD BE LIMITED TO AND MEAN ONLY
"BARGAINING WITH" AS HELD BY THE COURT OF APPEALS.  (FN10)  CONSTRUING
SEC. 2(5) OF THE ORIGINAL WAGNER ACT, THE COURTS OF APPEALS UNIFORMLY
HELD THAT EMPLOYEE COMMITTEES OR PLANS, UNDER WHATEVER NAME CALLED,
THAT FUNCTIONED SIMILARLY TO THOSE HERE, WERE "LABOR ORGANIZATIONS" AS
DEFINED IN THAT STATUTE.  (FN11) WITH FULL KNOWLEDGE OF THE TERMS OF
SEC. 2(5) OF THE ORIGINAL WAGNER ACT, (FN12) AND OF ITS LEGISLATIVE
HISTORY AND JUDICIAL INTERPRETATION, CONGRESS IN THE TAFT-HARTLEY ACT
RE-ENACTED THE SECTION WITHOUT CHANGE.  (FN13)  SINCE THAT TIME, AS
BEFORE, THE SEVERAL COURTS OF APPEALS HAVE UNIFORMLY HELD THAT EMPLOYEE
COMMITTEES OR PLANS, FUNCTIONING SIMILARLY TO THOSE HERE, WERE "LABOR
ORGANIZATIONS" WITHIN THE DEFINITION OF SEC. 2(5).  (FN14) 

THE COURT OF APPEALS WAS THEREFORE IN ERROR IN HOLDING THAT COMPANY
DOMINATED EMPLOYEE COMMITTEES, WHICH EXIST FOR THE PURPOSE, IN PART AT
LEAST, "OF DEALING WITH EMPLOYERS CONCERNING GRIEVANCES  ...  OR
CONDITIONS OF WORK," ARE NOT "LABOR ORGANIZATIONS," WITHIN THE MEANING
OF SEC. 2(5), SIMPLY BECAUSE THEY DO NOT "BARGAIN WITH" EMPLOYERS IN
"THE USUAL CONCEPT OF COLLECTIVE BARGAINING." 

CONSIDERATION OF THE DECLARED PURPOSES AND ACTUAL FUNCTIONS OF THESE
COMMITTEES SHOWS THAT THEY EXISTED FOR THE PURPOSE, IN PART AT LEAST,
"OF DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR DISPUTES,
WAGES, RATES OF PAY, HOURS OF EMPLOYMENT, OR CONDITIONS OF WORK."  IT
CANNOT BE, AND IS NOT, DISPUTED THAT, BY THE TERMS OF THE BYLAWS, WHICH
WERE ACCEPTED BOTH BY THE EMPLOYEES AND BY RESPONDENTS, THE EMPLOYEE
COMMITTEES UNDERTOOK THE "RESPONSIBILITY TO," AND DID, "HANDLE
GRIEVANCES (WITH RESPONDENTS ON BEHALF OF EMPLOYEES) AT NONUNION PLANTS
AND DEPARTMENTS ACCORDING TO GRIEVANCE PROCEDURE SET UP BY RESPONDENTS
FOR THESE PLANTS AND DEPARTMENTS" (SEE NOTE 3).  IT IS THEREFORE AS
PLAIN AS WORDS CAN EXPRESS THAT THESE COMMITTEES EXISTED, AT LEAST IN
PART, FOR THE PURPOSE "OF DEALING WITH EMPLOYERS CONCERNING GRIEVANCES
...  ."  THIS ALONE BRINGS THESE COMMITTEES SQUARELY WITHIN THE
STATUTORY DEFINITION OF "LABOR ORGANIZATIONS." 

MOREOVER, ALTHOUGH NONE OF THE EMPLOYEE COMMITTEES ATTEMPTED TO
NEGOTIATE ANY FORMAL BARGAINING CONTRACT WITH RESPONDENTS, THE EMPLOYEE
COMMITTEES, AT THE REGULAR EMPLOYEE COMMITTEE-MANAGEMENT MEETINGS HELD
DURING THE PERIOD HERE INVOLVED, MADE PROPOSALS AND REQUESTS RESPECTING
SUCH MATTERS AS SENIORITY, JOB CLASSIFICATION, JOB BIDDING, WORKING
SCHEDULES, HOLIDAYS, VACATIONS, SICK LEAVE, A MERIT SYSTEM, WAGE
CORRECTIONS, AND IMPROVEMENT OF WORKING FACILITIES AND CONDITIONS. 
RESPONDENTS' PLANT OFFICIALS PARTICIPATED IN THE DISCUSSION OF THESE
MATTERS AND FREQUENTLY GRANTED THE COMMITTEES' REQUESTS (SEE NOTE 5). 
ALSO, DURING THE 1955 AND 1956 MEETINGS OF THE CENTRAL COMMITTEE WITH
RESPONDENTS' DIRECTOR OF INDUSTRIAL RELATIONS IN PAMPA, TEXAS, THE
CENTRAL COMMITTEE MADE PROPOSALS AND REQUESTS WITH RESPECT TO MATTERS
COVERING NEARLY THE WHOLE SCOPE OF THE EMPLOYMENT RELATIONSHIP AND
WHICH ARE COMMONLY CONSIDERED AND DEALT WITH IN COLLECTIVE BARGAINING
(SEE NOTE 6).  THE DIRECTOR OF INDUSTRIAL RELATIONS DISCUSSED THOSE
PROPOSALS AND REQUESTS WITH THE CENTRAL COMMITTEE, AND SOUGHT TO REACH
SOME SOLUTION.  HE GRANTED SOME OF THEM AND REJECTED OTHERS, EXPLAINING
HIS REASONS FOR DOING SO.  RESPONDENTS SAY THAT THESE ACTIVITIES BY THE
COMMITTEES AND RESPONDENTS' OFFICIALS DO NOT MEAN THAT THE COMMITTEES
WERE "DEALING WITH" RESPONDENTS IN RESPECT TO THOSE MATTERS, BECAUSE,
THEY ARGUE, THE PROPOSALS AND REQUESTS AMOUNTED ONLY TO RECOMMENDATIONS
AND THAT FINAL DECISION REMAINED WITH RESPONDENTS.  BUT THIS IS TRUE OF
ALL SUCH "DEALING," WHETHER WITH AN INDEPENDENT OR A COMPANY-DOMINATED
"LABOR ORGANIZATION."  THE PRINCIPAL DISTINCTION LIES IN THE UNFETTERED
POWER OF THE FORMER TO INSIST UPON ITS REQUESTS.  LABOR BOARD V. JAS.
H. MATTHEWS & CO., 156 F.2D 706, 708.  (FN15)  WHETHER THOSE PROPOSALS
AND REQUESTS BY THE COMMITTEES, AND RESPONDENTS' CONSIDERATION OF AND
ACTION UPON THEM, DO OR DO NOT CONSTITUTE "THE USUAL CONCEPT OF
COLLECTIVE BARGAINING" (256 F.2D, AT 285), WE THINK THAT THOSE
ACTIVITIES ESTABLISH THAT THE COMMITTEES WERE "DEALING WITH"
RESPONDENTS, WITH RESPECT TO THOSE SUBJECTS, WITHIN THE MEANING OF SEC.
2(5). 

WE THEREFORE CONCLUDE THAT UNDER THE DECLARED PURPOSES AND ACTUAL
PRACTICES OF THESE COMMITTEES THEY ARE LABOR ORGANIZATIONS UNLESS, AS
THE COURT OF APPEALS HELD AND AS RESPONDENTS CONTEND, CONGRESS BY THE
1947 AMENDMENT OF SEC. 9(A), IN LEGAL EFFECT, ELIMINATED SUCH
COMMITTEES FROM THE TERM "LABOR ORGANIZATION" AS DEFINED IN SEC. 2(5)
AND USED IN SEC. 8(A)(2) (SEE NOTE 4).  WE NOW TURN TO THAT
CONTENTION. 

IN 1947 THE HOUSE PASSED H.R. 3020, KNOWN AS THE HARTLEY BILL,"
WHICH, AMONG OTHER THINGS, PROPOSED A NEW SECTION, TO BE DESIGNATED
8(D)(3), PROVIDING: 

"(D)  NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE
FOLLOWING SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR
PRACTICE UNDER ANY OF THE PROVISIONS OF THIS ACT: 

     *         *         *         *    * 

"(3)  FORMING OR MAINTAINING BY AN EMPLOYER OF A COMMITTEE OF
EMPLOYEES AND DISCUSSING WITH IT MATTERS OF MUTUAL INTEREST, INCLUDING
GRIEVANCES, WAGES, HOURS OF EMPLOYMENT, AND OTHER WORKING CONDITIONS,
IF THE BOARD HAS NOT CERTIFIED OR THE EMPLOYER HAS NOT RECOGNIZED A
REPRESENTATIVE AS THEIR REPRESENTATIVE UNDER SECTION 9."  (FN16) 

THE SENATE AMENDED H.R. 3020 BY SUBSTITUTING ITS OWN BILL, S. 1126,
KNOWN AS THE "TAFT BILL."  (FN17)  THE SENATE BILL CONTAINED NO
PROVISION CORRESPONDING TO THE NEW SEC.  8(D)(3) PROPOSED BY THE HOUSE,
BUT IT DID PROPOSE AN AMENDMENT TO SEC. 9(A) OF THE ORIGINAL WAGNER ACT
(49 STAT. 453) BY ADDING TO THE PROVISO OF THAT SECTION WHICH READ: 

"PROVIDED, THAT ANY INDIVIDUAL EMPLOYEE OR A GROUP OF EMPLOYEES SHALL
HAVE THE RIGHT AT ANY TIME TO PRESENT GRIEVANCES TO THEIR EMPLOYER  ...
." 

THE WORDS: 

"AND TO HAVE SUCH GRIEVANCES ADJUSTED, WITHOUT THE INTERVENTION OF
THE BARGAINING REPRESENTATIVE, AS LONG AS THE ADJUSTMENT IS NOT
INCONSISTENT WITH THE TERMS OF A COLLECTIVE-BARGAINING CONTRACT OR
AGREEMENT THEN IN EFFECT:  PROVIDED FURTHER, THAT THE BARGAINING
REPRESENTATIVE HAS BEEN GIVEN OPPORTUNITY TO BE PRESENT AT SUCH
ADJUSTMENT."  (FN18) 

THEREUPON THE SENATE REQUESTED A CONFERENCE.  (FN19)  THE CONFEREES
LATER REPORTED A NEW MEASURE, TAKEN PARTLY FROM THE HOUSE BILL AND
PARTLY FROM THE SENATE BILL AND CONTAINING SOME ENTIRELY NEW
PROVISIONS.  (FN20)  THAT BILL AS FINALLY AGREED UPON BY THE CONFEREES
DID NOT CONTAIN THE HOUSE'S PROPOSED NEW SEC. 8(D)(3) OR ANY SIMILAR
LANGUAGE, BUT IT DID CONTAIN THE SENATE'S PROPOSED AMENDMENT TO SEC.
9(A). 

IN REPORTING TO THE HOUSE, THE HOUSE CONFEREES STATED WITH RESPECT TO
THE ELIMINATION OF ITS PROPOSED NEW SEC. 8(D)(3) THAT: 

"SECTION 8(D)(3)  ...  IN THE HOUSE BILL PROVIDED THAT NOTHING IN THE
ACT WAS TO BE CONSTRUED AS PROHIBITING AN EMPLOYER FROM FORMING OR
MAINTAINING A COMMITTEE OF EMPLOYEES AND DISCUSSING WITH IT MATTERS OF
MUTUAL INTEREST, IF THE EMPLOYEES DID NOT HAVE A BARGAINING
REPRESENTATIVE.  THIS PROVISION IS OMITTED FROM THE CONFERENCE
AGREEMENT SINCE THE ACT BY ITS TERMS PERMITS INDIVIDUAL EMPLOYEES AND
GROUPS OF EMPLOYEES TO MEET WITH THE EMPLOYER AND SECTION 9(A) OF THE
CONFERENCE AGREEMENT PERMITS EMPLOYERS TO ANSWER THEIR GRIEVANCES." 
(FN21) 

THE BILL SO AGREED UPON BY THE CONFEREES WAS PASSED BY BOTH HOUSES
AND EVENTUALLY BECAME THE LAW.  (FN22) 

NOTWITHSTANDING THE FACT THAT CONGRESS REJECTED THE HOUSE PROPOSAL OF
A NEW SECTION, TO BE DESIGNATED SEC. 8(D)(3), WHICH, IF ADOPTED, WOULD
HAVE PERMITTED AN EMPLOYER TO FORM OR MAINTAIN A COMMITTEE OF EMPLOYEES
AND TO DISCUSS WITH IT MATTERS OF MUTUAL INTEREST, INCLUDING
GRIEVANCES, WAGES, HOURS OF EMPLOYMENT, AND OTHER WORKING CONDITIONS,
IF THERE WAS NO EMPLOYEE REPRESENTATIVE, RESPONDENTS CONTEND THAT
CONGRESS INTENDED TO ACCOMPLISH THE SAME PURPOSES BY ITS AMENDMENT TO
SEC. 9(A), AND THAT, IN CONSEQUENCE, AN EMPLOYER, WHOSE EMPLOYEES HAVE
NO BARGAINING REPRESENTATIVE, MAY NOW LEGALLY FORM OR MAINTAIN A
COMMITTEE OF EMPLOYEES AND DISCUSS WITH IT THE MATTERS REFERRED TO IN
THE PROPOSED SEC. 8(D)(3) ADVOCATED BY THE HOUSE. 

THIS ARGUMENT TREATS THE AMENDMENT TO SEC. 9(A) AS THOUGH CONGRESS
HAD ADOPTED, RATHER THAN REJECTED AS IT DID, THE PROPOSED SEC. 8(D)(3)
ADVOCATED BY THE HOUSE.  AND IT OVERLOOKS THE FACTS THAT THE HOUSE
CONFERENCE REPORT ITSELF DECLARED THAT "THE CONFERENCE AGREEMENT DOES
NOT MAKE ANY CHANGE" IN THE DEFINITION OF "LABOR ORGANIZATION," (FN23)
AND THAT, AS POINTED OUT BY SENATOR TAFT, THE CONFEREES SPECIFICALLY
REJECTED ALL ATTEMPTS TO "AMEND  ...  THE PROVISIONS IN SUBSECTION 8(2)
(OF THE ORIGINAL WAGNER ACT) RELATING TO COMPANY-DOMINATED UNIONS" AND
HAD LEFT ITS PROHIBITIONS "UNCHANGED."  (FN24)  THE AMENDMENT TO SEC.
9(A) DOES NOT SAY THAT AN EMPLOYER MAY FORM OR MAINTAIN AN EMPLOYEE
COMMITTEE FOR THE PURPOSE OF "DEALING WITH" THE EMPLOYER, ON BEHALF OF
EMPLOYEES, CONCERNING GRIEVANCES.  ON THE CONTRARY THE AMENDMENT TO
SEC. 9(A) SIMPLY PROVIDES, IN SUBSTANCE, THAT ANY INDIVIDUAL EMPLOYEE
OR GROUP OF EMPLOYEES SHALL HAVE THE RIGHT PERSONALLY TO PRESENT THEIR
OWN GRIEVANCES TO THEIR EMPLOYER, AND TO HAVE SUCH GRIEVANCES ADJUSTED,
WITHOUT THE INTERVENTION OF ANY BARGAINING REPRESENTATIVE, AS LONG AS
THE ADJUSTMENT IS NOT INCONSISTENT WITH THE TERMS OF ANY COLLECTIVE
BARGAINING CONTRACT THEN IN EFFECT, PROVIDED THAT THE BARGAINING
REPRESENTATIVE, IF THERE IS ONE, HAS BEEN GIVEN AN OPPORTUNITY TO BE
PRESENT.  IT IS THUS EVIDENT THAT THERE IS NOTHING IN THE AMENDMENT OF
SEC. 9(A) THAT AUTHORIZES AN EMPLOYER TO ENGAGE IN "DEALING WITH" AN
EMPLOYER-DOMINATED "LABOR ORGANIZATION" AS THE REPRESENTATIVE OF HIS
EMPLOYEES CONCERNING THEIR GRIEVANCES. 

WE THEREFORE CONCLUDE THAT THERE IS NOTHING IN THE AMENDMENT OF SEC.
9(A), OR IN ITS LEGISLATIVE HISTORY, TO INDICATE THAT CONGRESS THEREBY
ELIMINATED OR INTENDED TO ELIMINATE SUCH EMPLOYEE COMMITTEES FROM THE
TERM "LABOR ORGANIZATION" AS DEFINED IN SEC. 2(5) AND USED IN SEC.
8(A)(2). 

RESPONDENTS ARGUE THAT TO HOLD THESE EMPLOYEE COMMITTEES TO BE LABOR
ORGANIZATIONS WOULD PREVENT EMPLOYERS AND EMPLOYEES FROM DISCUSSING
MATTERS OF MUTUAL INTEREST CONCERNING THE EMPLOYMENT RELATIONSHIP, AND
WOULD THUS ABRIDGE FREEDOM OF SPEECH IN VIOLATION OF THE FIRST
AMENDMENT OF THE CONSTITUTION.  BUT THE BOARD'S ORDER DOES NOT IMPOSE
ANY SUCH BAR; IT MERELY PRECLUDES THE EMPLOYERS FROM DOMINATING,
INTERFERING WITH OR SUPPORTING SUCH EMPLOYEE COMMITTEES WHICH CONGRESS
HAS DEFINED TO BE LABOR ORGANIZATIONS. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  SECTION 2(5) OF THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 138,
29 U.S.C. SEC.  152(5) PROVIDES: 

"THE TERM 'LABOR ORGANIZATION' MEANS ANY ORGANIZATION OF ANY KIND, OR
ANY AGENCY OR EMPLOYEE REPRESENTATION COMMITTEE OR PLAN, IN WHICH
EMPLOYEES PARTICIPATE AND WHICH EXISTS FOR THE PURPOSE, IN WHOLE OR IN
PART, OF DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR DISPUTES,
WAGES, RATES OF PAY, HOURS OF EMPLOYMENT, OR CONDITIONS OF WORK." 

FN2  EXAMPLES OF THE PROBLEMS OF MUTUAL INTEREST TO EMPLOYEES AND
MANAGEMENT TO BE CONSIDERED AT THE COMMITTEE-MANAGEMENT MEETINGS WERE
STATED IN THE BYLAWS TO BE, BUT WERE NOT LIMITED TO, SAFETY; INCREASED
EFFICIENCY AND PRODUCTION; CONSERVATION OF SUPPLIES, MATERIALS, AND
EQUIPMENT; ENCOURAGEMENT OF INGENUITY AND INITIATIVE; AND GRIEVANCES AT
NONUNION PLANTS OR DEPARTMENTS. 

FN3  AS PUBLISHED IN THE GUIDE THE ESTABLISHED GRIEVANCE PROCEDURE
APPLICABLE TO NONUNION PLANTS AND DEPARTMENTS PROVIDES, IN SUMMARY,
THAT IN HANDLING AN EMPLOYEE'S GRIEVANCE IT SHALL BE THE COMMITTEE'S
DUTY TO CONSULT WITH THE FOREMAN, THE ASSISTANT PLANT SUPERINTENDENT
AND THE PLANT SUPERINTENDENT, AND CONSIDER ALL THE FACTS.  IF, AFTER
HAVING DONE SO, THE COMMITTEE BELIEVES THAT THE EMPLOYEE HAS A JUST
GRIEVANCE IT SHALL PREPARE IN WRITING A FORMAL STATEMENT OF ITS
SUPPORTING REASONS AND PRESENT IT TO THE PLANT SUPERINTENDENT, WHO
SHALL SEND COPIES OF IT, ATTACHING HIS OWN REPORT AND RECOMMENDATIONS,
TO THE DISTRICT SUPERINTENDENT, THE DEPARTMENT HEAD AND INDUSTRIAL
RELATIONS DEPARTMENT OF THE COMPANY.  WITHIN FIVE DAYS AFTER RECEIPT OF
SUCH GRIEVANCE THE DISTRICT SUPERINTENDENT OR THE DEPARTMENT HEAD, OR
BOTH, SHALL MEET WITH THE COMMITTEE AND PLANT MANAGEMENT AND DISCUSS
THE PROBLEM AND ANNOUNCE THEIR DECISION.  IF THE COMMITTEE STILL FEELS
THAT THE GRIEVANCE HAS NOT BEEN FAIRLY SETTLED IT MAY APPEAL TO THE
GENERAL MANAGER WHO, WITHIN FIVE DAYS, SHALL MEET WITH THE COMMITTEE
AND PLANT MANAGEMENT AND ANNOUNCE HIS DECISION. 

FN4  SECTION 8(A)(2) OF THE ACT, 61 STAT. 140, 29 U.S.C. SEC.
158(A)(2), PROVIDES: 

"(A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER: 

     *         *         *     *         * 

"(2)  TO DOMINATE OR INTERFERE WITH THE FORMATION OR ADMINISTRATION
OF ANY LABOR ORGANIZATION OR CONTRIBUTE FINANCIAL OR OTHER SUPPORT TO
IT; PROVIDED, THAT SUBJECT TO RULES AND REGULATIONS MADE AND PUBLISHED
BY THE BOARD PURSUANT TO SECTION 6, AN EMPLOYER SHALL NOT BE PROHIBITED
FROM PERMITTING EMPLOYEES TO CONFER WITH HIM DURING WORKING HOURS
WITHOUT LOSS OF TIME OR PAY  ...  ." 

FN5  AMONG OTHER THINGS, RESPONDENTS' PLANT OFFICIALS AGREED TO
EMPLOYEE COMMITTEE REQUESTS TO CHANGE FROM A COMPANY TO A PLANT
SENIORITY SYSTEM IN SEVERAL PLANTS WHERE EMPLOYEES DESIRED THE CHANGE;
TO PROVIDE LONGER NOTICE PERIODS CONCERNING JOBS UP FOR BID; TO PERMIT
EMPLOYEES TO REPORT EARLY AND LEAVE EARLY ON WEEK ENDS; TO ESTABLISH AN
ANNUAL BASIS FOR ALLOCATING OVERTIME; AND TO INSTALL VENTS IN THE ROOFS
OF WAREHOUSES. 

FN6  THE SUBJECTS DISCUSSED BY THE CENTRAL COMMITTEE WITH
RESPONDENTS' DIRECTOR OF INDUSTRIAL RELATIONS AT THOSE MEETINGS
INCLUDED COMMITTEE PROPOSALS AND REQUESTS FOR: A VACATION OF 3 WEEKS
FOR EMPLOYEES WITH 10 YEARS' SERVICE; ANNUAL SICK LEAVE; A DISABILITY
BENEFIT PLAN; AMENDMENTS IN THE PRACTICE OF WORKING ON HOLIDAYS; THE
ESTABLISHMENT AND FINANCING BY RESPONDENTS OF AN EMPLOYEE EDUCATIONAL
PROGRAM; THE GRANTING OF LEAVES OF ABSENCE TO EMPLOYEES WISHING TO
ATTEND COLLEGE; THE FURNISHING TO CERTAIN EMPLOYEES OF WORK CLOTHING; A
CHANGE IN POLICY TO PERMIT SHIFTMEN TO MAKE UP WORK DAYS LOST; THE
CREATION OF MORE JOB CLASSIFICATIONS, WITH RESULTING HIGHER WAGES; MORE
OPPORTUNITIES FOR EMPLOYEES TO TRANSFER FROM ONE PLANT OR DEPARTMENT TO
ANOTHER; PAYMENT OF WAGES TO EMPLOYEES WHILE ATTENDING NATIONAL GUARD
CAMPS; MAKING THE WORKING DAY OF SHIFTWORKERS THE SAME AS THAT OF THE
GANGS WITH WHICH THEY WORK; AND A GENERAL WAGE INCREASE. 

FN7  "THE TERM 'LABOR ORGANIZATION' IS PHRASED VERY BROADLY IN ORDER
THAT THE INDEPENDENCE OF ACTION GUARANTEED BY SECTION 7  ...  AND
PROTECTED BY SECTION 8 SHALL EXTEND TO ALL ORGANIZATIONS OF EMPLOYEES
THAT DEAL WITH EMPLOYERS IN REGARD TO 'GRIEVANCES, LABOR DISPUTES,
WAGES, RATES OF PAY, HOURS OF EMPLOYMENT, OR CONDITIONS OF WORK.'  THIS
DEFINITION INCLUDES EMPLOYEE-REPRESENTATIVE COMMITTEES AND PLANS IN
ORDER THAT THE EMPLOYERS' ACTIVITIES IN CONNECTION THEREWITH SHALL BE
EQUALLY SUBJECT TO THE APPLICATION OF SECTION 8."  S. REP. NO. 573,
74TH CONG., 1ST SESS. 7, REPRINTED IN 2 LEGISLATIVE HISTORY OF THE
NATIONAL LABOR RELATIONS ACT, 1935, P. 2306.  (THE LATTER PUBLICATION
WILL HEREAFTER BE CITED, FOR EXAMPLE, AS 2 LEG.  HIST.  (1935) 2306.) 

FN8  HEARINGS BEFORE SENATE COMMITTEE ON EDUCATION AND LABOR ON S.
1958, 74TH CONG., 1ST SESS. 66-67, REPRINTED IN 1 LEG.  HIST.  (1935)
1442-1443. 

FN9  S. 1958 (2D PRINT), 74TH CONG., 1ST SESS. 4, REPRINTED IN 2
LEG.  HIST.  (1935) 2287. 

FN10  SEE COMPARISON OF S. 2926 (73D CONG.) AND S. 1958 (74TH CONG.),
PP. 1, 22-23, REPRINTED IN 1 LEG.  HIST.  (1935) 1320, 1347. 

FN11  LABOR BOARD V. AMERICAN FURNACE CO., 158 F.2D 376, 378 (C.A.
7TH CIR.); LABOR BOARD V. JAS. H. MATTHEWS & CO., 156 F.2D 706, 707-708
(C.A. 3D CIR.); LABOR BOARD V. C. NELSON MFG. CO., 120 F.2D 444, 445
(C.A. 8TH CIR.).  COMPARE LABOR BOARD V. PENNSYLVANIA GREYHOUND LINES,
303 U.S. 261, 268-269; LABOR BOARD V. NEWPORT NEWS SHIPBUILDING & DRY
DOCK CO., 308 U.S. 241, 246-248. 

FN12  49 STAT. 450. 

FN13  61 STAT. 138, 29 U.S.C. SEC. 152(5). 

FN14  PACEMAKER CORP. V. LABOR BOARD, 260 F.2D 880, 883 (C.A. 7TH
CIR.)(WHERE THE SEVENTH CIRCUIT EXPRESSLY DISAGREED WITH THE RULING
BELOW); LABOR BOARD V. STANDARD COIL PRODUCTS CO., 224 F.2D 465, 467
468 (C.A. 1ST CIR.); LABOR BOARD V. STOW MFG. CO., 217 F.2D 900, 903
904 (C.A.2D CIR.); LABOR BOARD V. SHARPLES CHEMICALS, INC., 209 F.2D
645, 651-652 (C.A. 6TH CIR.); INDIANA METAL PRODUCTS CORP. V. LABOR
BOARD, 202 F.2D 613, 621 (C.A. 7TH CIR.); HARRISON SHEET STEEL CO. V.
LABOR BOARD, 194 F.2D 407, 410 (C.A.  7TH CIR.); LABOR BOARD V. GENERAL
SHOE CORP., 192 F.2D 504, 507 (C.A. 6TH CIR.).  BUT SEE LABOR BOARD V.
ASSOCIATED MACHINES, 219 F.2D 433 (C.A. 6TH CIR.).    FN15  IN LABOR
BOARD V. JAS. H. MATTHEWS & CO., THE COURT SAID:  "RESPONDENTS SAY THAT
THIS JUNIOR BOARD DID NOT DEAL, IT ONLY RECOMMENDED AND THAT FINAL
DECISION WAS WITH MANAGEMENT.  FINAL DECISION IS ALWAYS WITH
MANAGEMENT, ALTHOUGH WHEN A CLAIM IS MADE BY A WELL ORGANIZED, GOOD
SIZED UNION, MANAGEMENT IS DOUBTLESS MORE STRONGLY INFLUENCED IN ITS
DECISION THAN IT WOULD BE BY A RECOMMENDATION OF A BOARD WHICH IT,
ITSELF, HAS SELECTED AND WHICH HAS BEEN PROVIDED WITH NO FIGHTING
ARMS."  156 F.2D, AT 708. 

FN16  H.R. 3020, 80TH CONG., 1ST SESS. 26, REPRINTED IN 1 LEG. 
HIST.  (1947) 183. 

FN17  S. 1126, 80TH CONG., 1ST SESS., REPRINTED IN 1 LEG.  HIST. 
(1947) 99. 

FN18  H.R. 3020, AS AMENDED BY THE SENATE, 80TH CONG., 1ST SESS. 86,
REPRINTED IN 1 LEG.  HIST.  (1947) 244; NOW 61 STAT. 143, 29 U.S.C.
SEC. 159(A). 

FN19  93 CONG. REC. 5298, REPRINTED IN 2 LEG.  HIST.  (1947) 1522. 

FN20  H.R. CONG. REP. NO. 510, 80TH CONG., 1ST SESS., REPRINTED IN 1
LEG.  HIST.  (1947) 505. 

FN21  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 45, REPRINTED IN
1 LEG.  HIST.  (1947) 549. 

FN22  61 STAT. 136 ET SEQ., 29 U.S.C. SEC. 151 ET SEQ. 

FN23  H.R. CONG. REP. NO. 510, 80TH CONG., 1ST SESS. 33, 1 LEG. 
HIST.  (1947) 537. 

FN24  93 CONG. REC. 6600, REPRINTED IN 2 LEG.  HIST.  (1947) 1539. 
..END :


















MARTIN V. CREASY 360 U.S. 219 


NO. 157.  ARGUED APRIL 2, 1959.  - DECIDED JUNE 8, 1959.  - 160 F. SUPP.
404, REVERSED. 


RESPONDENTS OWNED PROPERTY ABUTTING A SECTION OF HIGHWAY IN
PENNSYLVANIA WHICH WAS ABOUT TO BE DESIGNATED AS A "LIMITED ACCESS
HIGHWAY" UNDER AUTHORITY OF A PENNSYLVANIA STATUTE WHICH PROVIDES THAT
THE OWNERS OF PROPERTY AFFECTED BY THE DESIGNATION OF A "LIMITED ACCESS
HIGHWAY" SHALL BE ENTITLED "ONLY TO DAMAGES ARISING FROM AN ACTUAL
TAKING OF PROPERTY" AND NOT FOR "CONSEQUENTIAL DAMAGES WHERE NO
PROPERTY IS TAKEN."  THEY SUED IN A FEDERAL DISTRICT COURT FOR
INJUNCTIVE RELIEF AND A JUDGMENT DECLARING THE STATUTE
UNCONSTITUTIONAL.  THE DISTRICT COURT STAYED ITS PROCEEDINGS TO PERMIT
THE PARTIES TO SEEK A DETERMINATION OF THEIR RIGHTS UNDER THE ACT IN
THE STATE COURTS.  THEY BROUGHT AN EQUITY SUIT IN A STATE COURT, WHICH
HELD THAT THE ACT PROVIDES A METHOD BY WHICH EVERY PROPERTY OWNER MAY
HAVE IT DECIDED WHETHER HE IS ENTITLED TO COMPENSATION, AND, IF SO, FOR
WHAT AND IN WHAT AMOUNTS, AND THAT THEIR CONSTITUTIONAL RIGHTS,
WHATEVER THEY MAY BE, WILL BE PROTECTED.  THE STATE SUPREME COURT
AFFIRMED.  THEREAFTER, THE DISTRICT COURT CONCLUDED THAT THE STATE
LEGISLATURE DID NOT INTEND TO COMPENSATE ABUTTING LANDOWNERS WHOSE
RIGHTS OF ACCESS TO AN EXISTING HIGHWAY ARE DESTROYED BY ITS
DESIGNATION AS A LIMITED ACCESS HIGHWAY, AND THAT THE ACT VIOLATED THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT; AND IT PERMANENTLY
ENJOINED THE GOVERNOR AND THE SECRETARY OF HIGHWAYS FROM PROCEEDING
FURTHER.  HELD:  THE CIRCUMSTANCES WERE SUCH THAT THE DISTRICT COURT
SHOULD HAVE DECLINED TO ADJUDICATE THIS CONTROVERSY.  PP. 220-225. 

(A)  THE DESIRABILITY OF AVOIDING UNSEEMLY CONFLICT BETWEEN TWO
SOVEREIGNTIES, THE UNNECESSARY IMPAIRMENT OF STATE FUNCTIONS, AND THE
PREMATURE DETERMINATION OF CONSTITUTIONAL QUESTIONS SHOULD HAVE LED THE
DISTRICT COURT TO STAY ITS HAND.  PP. 223-224. 

(B)  ANOTHER REASON WHY THE DISTRICT COURT SHOULD HAVE STAYED ITS
HAND IS TO BE FOUND IN THE COMPLEX AND VARYING EFFECTS WHICH THE
CONTEMPLATED STATE ACTION MAY HAVE UPON DIFFERENT LANDOWNERS.  PP. 224
225. 

(C)  THERE IS NO REASON TO SUPPOSE THAT THE STATE WILL NOT ACCORD
FULL CONSTITUTIONAL SCOPE TO THE STATUTORY PHRASE "ACTUAL TAKING OF
PROPERTY"; BUT, SHOULD IT FAIL TO DO SO, RECOURSE MAY BE HAD TO THIS
COURT.  P. 225. 

MARTIN, SUCCESSOR TO LAWLER, SECRETARY OF HIGHWAYS OF PENNSYLVANIA, ET
AL. V. CREASY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF PENNSYLVANIA. 

OPINION OF THE COURT BY MR. JUSTICE STEWART, ANNOUNCED BY MR. JUSTICE
WHITTAKER. 

THIS ACTION WAS INSTITUTED IN THE DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA BY OWNERS OF PROPERTY ABUTTING A SECTION OF
HIGHWAY WHICH RUNS BETWEEN DOWNTOWN PITTSBURGH AND THE GREATER
PITTSBURGH AIRPORT.  THE COMPLAINT STATED THAT THE SECRETARY OF
HIGHWAYS AND THE GOVERNOR OF PENNSYLVANIA WERE ABOUT TO DESIGNATE THAT
PENNSYLVANIA STATUTE.  CLAIMING THAT SUCH ACTION WOULD DEPRIVE THEM OF
THEIR PROPERTY WITHOUT DUE PROCESS OF LAW, SINCE THE PENNSYLVANIA
STATUTE ALLEGEDLY DID NOT PROVIDE COMPENSATION FOR LOSS OF ACCESS TO
THE HIGHWAY, THE PLAINTIFFS ASKED FOR INJUNCTIVE RELIEF AND FOR A
JUDGMENT DECLARING THE STATUTE UNCONSTITUTIONAL. 

THE LEGISLATION UNDER WHICH IT WAS ASSERTED THE STATE OFFICIALS WERE
PLANNING TO ACT IS THE PENNSYLVANIA LIMITED ACCESS HIGHWAYS ACT OF
1945.  (FN1)  THE ACT DEFINES A LIMITED ACCESS HIGHWAY AS "A PUBLIC
HIGHWAY TO WHICH OWNERS OR OCCUPANTS OF ABUTTING PROPERTY OR THE
TRAVELING PUBLIC HAVE NO RIGHT OF INGRESS OR EGRESS TO, FROM OR ACROSS
SUCH HIGHWAY, EXCEPT AS MAY BE PROVIDED BY THE AUTHORITIES RESPONSIBLE
THEREFOR."  (FN2)  IT AUTHORIZES THE SECRETARY OF HIGHWAYS, WITH THE
APPROVAL OF THE GOVERNOR, TO DECLARE ANY HIGHWAY, OR PART THEREOF, TO
BE A LIMITED ACCESS HIGHWAY.  (FN3)  SECTION 8 OF THE STATUTE, AS
AMENDED IN 1947, PROVIDES: 

"THE OWNER OR OWNERS OF PRIVATE PROPERTY AFFECTED BY THE CONSTRUCTION
OR DESIGNATION OF A LIMITED ACCESS HIGHWAY  ...  SHALL BE ENTITLED ONLY
TO DAMAGES ARISING FROM AN ACTUAL TAKING OF PROPERTY.  THE COMMONWEALTH
SHALL NOT BE LIABLE FOR CONSEQUENTIAL DAMAGES WHERE NO PROPERTY IS
TAKEN  ...  ." 

THE LATTER SECTION WAS SPECIFICALLY ATTACKED BY THE PLAINTIFFS, WHO
CLAIMED THAT IN THE LIGHT OF THE PENNSYLVANIA COURTS' INTERPRETATION OF
OTHER STATUTES, THIS PROVISION WOULD BE CONSTRUED TO MEAN THAT
COMPENSATION WAS TO BE PAID ONLY IF LAND WERE TAKEN.  THE LIMITED
ACCESS HIGHWAYS ACT ITSELF HAD NEVER BEEN CONSTRUED BY THE COURTS OF
PENNSYLVANIA. 

THE DISTRICT JUDGE ISSUED A TEMPORARY RESTRAINING ORDER.  THEREAFTER
A THREE-JUDGE COURT WAS CONVENED PURSUANT TO 28 U.S.C. SECS. 2281 AND
2284.  AFTER STIPULATIONS OF FACT WERE FILED, THE DISTRICT COURT
ENTERED AN ORDER STAYING PROCEEDINGS TO PERMIT THE PARTIES TO SEEK A
DETERMINATION OF THEIR RIGHTS UNDER THE STATUTE IN THE COURTS OF
PENNSYLVANIA. 

THEREUPON THE PLAINTIFFS FILED AN EQUITABLE PROCEEDING IN THE COMMON
PLEAS COURT OF DAUPHIN COUNTY, PENNSYLVANIA.  THAT COURT POINTED OUT
THAT THE PLAINTIFFS WERE ASKING FOR A DETERMINATION OF "WHETHER OR NOT
A TAKING OF PROPERTY HAS OCCURRED AND WHAT DAMAGES SHALL BE AWARDED
THEREFOR, AND THAT, IF THE DEPRIVING THEM OF ACCESS IS FOUND TO BE A
TAKING OF A COMPENSABLE PROPERTY RIGHT, THE PLAINTIFFS' LEGITIMATE
INTERESTS WILL BE CONSTITUTIONALLY SAFEGUARDED BY A RESORT TO VIEWERS
PROCEEDINGS AND, IF NECESSARY, BY LATER APPEALS TO THE COURTS."  CREASY
V. LAWLER, 8 PA. D.&C.2D 535, 537. 

AS A COURT OF EQUITY, THE COUNTY COURT FOUND IT PROPER TO DETERMINE
ONLY THE LAST OF THESE QUESTIONS, AND ITS ANSWER WAS UNEQUIVOCAL: 

"ALL OF PLAINTIFFS' RIGHTS CAN BE PROTECTED AND SECURED IN A
PROCEEDING BEFORE VIEWERS, AS IS PROVIDED IN SECTION 8 OF THE LIMITED
ACCESS HIGHWAY ACT OF MAY 29, 1945  ...  .  HERE THE LEGISLATURE, IN
THE LIMITED ACCESS HIGHWAYS ACT,  ...  HAS PROVIDED A WAY IN WHICH
EVERY PROPERTY OWNER MAY HAVE IT DECIDED WHETHER HE IS ENTITLED TO
COMPENSATION AND, IF SO, WHEN, FOR WHAT, AND IN WHAT AMOUNTS  ...  .
SHOULD THE COMMONWEALTH PROCEED, THEN AT THAT TIME PLAINTIFFS WILL HAVE
THE RIGHT TO PROCEED BEFORE VIEWERS ON THE QUESTION OF THEIR RIGHT TO
DAMAGES.  IN THE ORDERLY COURSE OF THE PROCEDURE PROVIDED BY THE
LIMITED ACCESS HIGHWAYS ACT, THEY WILL HAVE A RIGHT OF APPEAL TO THE
COMMON PLEAS COURT AND A JURY TRIAL, AND STILL LATER TO HAVE THEIR
RIGHTS ADJUDICATED IN THE APPELLATE COURTS.  AT ALL TIMES THEIR
CONSTITUTIONAL RIGHTS, WHATEVER THEY MAY BE, WILL BE GUARDED AND
PROTECTED."  8 PA. D.&C.2D, AT 538-539. 

THIS DECISION WAS AFFIRMED PER CURIAM BY THE SUPREME COURT OF
PENNSYLVANIA, WHICH EXPLICITLY ADOPTED THE LOWER COURT'S OPINION.  389
PA. 635, 133 A.2D 178. 

FURTHER PROCEEDINGS WERE THEN HAD IN THE DISTRICT COURT.  ALTHOUGH
STATING ITS AWARENESS "THAT THE FEDERAL COURTS SHOULD BE RELUCTANT TO
EXERCISE JURISDICTION IN CASES WHERE THE PLAINTIFFS' CONSTITUTIONAL
RIGHTS WILL BE PROPERLY PROTECTED IN THE STATE TRIBUNAL AND WHERE THE
STATUTE UNDER ATTACK HAS NOT YET BEEN CONSTRUED BY THE STATE COURTS,"
NEVERTHELESS THE DISTRICT COURT PROCEEDED TO ADJUDICATE THE MERITS OF
THE CONTROVERSY, BELIEVING THAT THE PLAINTIFFS MIGHT BE IRREPARABLY
HARMED DURING THE PERIOD REQUIRED TO DETERMINE THEIR RIGHTS IN THE
STATE COURTS.  "WITHOUT VENTURING TO PREDICT THE ULTIMATE DECISION OF
THE PENNSYLVANIA COURTS ON THE ISSUE OF COMPENSATION," THE DISTRICT
COURT WAS OF THE VIEW THAT THE PENNSYLVANIA LEGISLATURE DID NOT INTEND
TO COMPENSATE ABUTTING LANDOWNERS "WHOSE RIGHT OF ACCESS TO AN EXISTING
HIGHWAY IS DESTROYED BY THE DESIGNATION OF THAT HIGHWAY AS A LIMITED
ACCESS HIGHWAY."  FOR THAT REASON THE COURT FOUND THE STATUTE REPUGNANT
TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  A FINAL DECREE
WAS ISSUED, PERMANENTLY ENJOINING, IN THE MOST SWEEPING TERMS, THE
SECRETARY OF HIGHWAYS AND THE GOVERNOR FROM PROCEEDING.  CREASY V.
STEVENS, 160 F. SUPP. 404.  (FN4)  THE CASE IS HERE BY WAY OF A DIRECT
APPEAL, 28 U.S.C. SEC. 1253, OF WHICH THIS COURT NOTED PROBABLE
JURISDICTION.  358 U.S. 807. 

IT WAS THE CLEAR PRONOUNCEMENT OF THE PENNSYLVANIA COURTS THAT THE
STATE STATUTE PROVIDES A COMPLETE PROCEDURE TO GUARD AND PROTECT THE
PLAINTIFFS' CONSTITUTIONAL RIGHTS "AT ALL TIMES."  IN THE LIGHT OF THIS
PRONOUNCEMENT IT IS DIFFICULT TO PERCEIVE THE BASIS FOR THE DISTRICT
COURT'S CONCLUSION THAT THE PLAINTIFFS WOULD BE IRREPARABLY HARMED
UNLESS THE STATE OFFICERS WERE ENJOINED FROM PROCEEDING UNDER THE
STATUTE.  THERE IS NO QUESTION HERE OF THE STATE'S RIGHT TO CREATE OR
DESIGNATE A LIMITED ACCESS HIGHWAY.  THE ONLY QUESTION IS THE
PLAINTIFFS' RIGHT TO COMPENSATION.  IT MUST BE ASSUMED THAT THE COURTS
OF PENNSYLVANIA MEANT WHAT THEY SAID IN STATING THAT THE PLAINTIFFS
WILL BE AFFORDED A PROCEDURE THROUGH WHICH THE FULL MEASURE OF THEIR
RIGHTS UNDER THE UNITED STATES CONSTITUTION WILL BE PRESERVED. 
ASSUMING, HOWEVER, THAT THERE WAS A BASIS TO SUPPORT INTERVENTION BY A
COURT OF EQUITY, THE DISTRICT COURT, WE THINK, SHOULD NEVERTHELESS HAVE
DECLINED TO ADJUDICATE THIS CONTROVERSY. 

THE CIRCUMSTANCES WHICH SHOULD IMPEL A FEDERAL COURT TO ABSTAIN FROM
BLOCKING THE EXERCISE BY STATE OFFICIALS OF THEIR APPROPRIATE FUNCTIONS
ARE PRESENT HERE IN A MARKED DEGREE.  THE CONSIDERATIONS WHICH SUPPORT
THE WISDOM OF SUCH ABSTENTION HAVE BEEN SO THOROUGHLY AND REPEATEDLY
DISCUSSED BY THIS COURT AS TO REQUIRE LITTLE ELABORATION.  RAILROAD
COMM'N V. PULLMAN CO., 312 U.S. 496; CHICAGO V. FIELDCREST DAIRIES, 316
U.S. 168; SPECTOR MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101; AMERICAN
FEDERATION OF LABOR V. WATSON, 327 U.S. 582; GOVERNMENT EMPLOYEES V.
WINDSOR, 353 U.S. 364.  SEE ALSO ALABAMA COMM'N V. SOUTHERN R. CO., 341
U.S. 341.  REFLECTED AMONG THE CONCERNS WHICH HAVE TRADITIONALLY
COUNSELED A FEDERAL COURT TO STAY ITS HAND ARE THE DESIRABILITY OF
AVOIDING UNSEEMLY CONFLICT BETWEEN TWO SOVEREIGNTIES, THE UNNECESSARY
IMPAIRMENT OF STATE FUNCTIONS, AND THE PREMATURE DETERMINATION OF
CONSTITUTIONAL QUESTIONS.  ALL THOSE FACTORS ARE PRESENT HERE. 

AT LEAST ONE ADDITIONAL REASON FOR ABSTENTION IN THE PRESENT CASE IS
TO BE FOUND IN THE COMPLEX AND VARYING EFFECTS WHICH THE CONTEMPLATED
STATE ACTION MAY HAVE UPON THE DIFFERENT LANDOWNERS.  SOME OF THEM MAY
BE COMPLETELY DEPRIVED OF ACCESS; OTHERS MAY HAVE ACCESS TO EXISTING
ROADS OR SERVICE ROADS TO BE CONSTRUCTED; STILL OTHERS MAY HAVE ACCESS
TO THE HIGHWAY ITSELF THROUGH POINTS OF INGRESS AND EGRESS ESTABLISHED
UNDER THE STATUTE.  IN THE STATE COURT PROCEEDINGS THE CASE OF EACH
LANDOWNER WILL BE CONSIDERED SEPARATELY, WITH WHATEVER PARTICULAR
PROBLEMS EACH CASE MAY PRESENT. 

THERE IS NO REASON TO SUPPOSE THAT THE COMMONWEALTH OF PENNSYLVANIA
WILL NOT AFFORD FULL CONSTITUTIONAL SCOPE TO THE STATUTORY PHRASE
"ACTUAL TAKING OF PROPERTY."  (FN5)  IF, AFTER ALL IS SAID AND DONE IN
THE PENNSYLVANIA COURTS, ANY OF THE PLAINTIFFS BELIEVE THAT THE
COMMONWEALTH HAS DEPRIVED THEM OF THEIR PROPERTY WITHOUT DUE PROCESS OF
LAW, THIS COURT WILL BE HERE.  REVERSED. 

FN1  PA. LAWS 1945, NO. 402, SEC. 1 ET SEQ., AS AMENDED, PA. LAWS
1947, NO. 213 AND PA. LAWS 1957, NO. 112.  36 PURDON'S PA. STAT. ANN.
SEC. 2391.1 ET SEQ. 

FN2  36 PURDON'S PA. STAT. ANN. SEC. 2391.1. 

FN3  36 PURDON'S PA. STAT. ANN. SEC. 2391.2. 

FN4  THE LANGUAGE OF THE COURT'S ORDER WAS AS FOLLOWS:  "NOW,
THEREFORE, IT IS FINALLY DETERMINED, ORDERED, ADJUDGED AND DECREED THAT
THE DEFENDANTS, LEWIS M. STEVENS, SECRETARY OF HIGHWAYS OF THE
COMMONWEALTH OF PENNSYLVANIA, AND GEORGE M. LEADER, GOVERNOR OF THE
COMMONWEALTH OF PENNSYLVANIA, BE AND THEY HEREBY ARE PERMANENTLY
ENJOINED FROM ENFORCING OR OTHERWISE COMPLYING WITH THE PENNSYLVANIA
'LIMITED-ACCESS HIGHWAYS ACT', 1945, MAY 29, P.L. 1108, SEC. 1, ET
SEQ., AS AMENDED, 36 PURDON'S PA. STAT. ANN. SEC. 2391.1 ET SEQ., SO AS
TO INTERFERE WITH OR DEPRIVE THE PLAINTIFFS OF THEIR RIGHT OF INGRESS
OR EGRESS TO, FROM OR ACROSS THE 'AIRPORT PARKWAY' IN ALLEGHENY COUNTY,
PENNSYLVANIA." 

FN5  SEE BOWIE, LIMITING HIGHWAY ACCESS, 4 MD. L. REV. 219 (1940);
CLARKE, THE LIMITED-ACCESS HIGHWAY, 27 WASH. L. REV. 111 (1952);
CUNNYNGHAM, THE LIMITED-ACCESS HIGHWAY FROM A LAWYER'S VIEWPOINT, 13
MO. L. REV. 19 (1948); DUHAIME, LIMITING ACCESS TO HIGHWAYS, 33 ORE. 
L. REV.  16 (1953); ENFIELD AND MCLEAN, CONTROLLING THE USE OF ACCESS,
NATIONAL ACADEMY OF SCIENCES, NATIONAL RESEARCH COUNCIL, HIGHWAY
RESEARCH BOARD BULLETIN NO. 101 (1955), P. 70; AND REESE, LEGAL ASPECTS
OF LIMITING HIGHWAY ACCESS, NATIONAL ACADEMY OF SCIENCES, NATIONAL
RESEARCH COUNCIL, HIGHWAY RESEARCH BOARD BULLETIN NO. 77 (1953), P.
36. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

A DISTRICT COURT'S ABSTENTION FROM THE EXERCISE OF ITS PROPERLY
INVOKED JURISDICTION IS JUSTIFIED, IN MY VIEW, "ONLY IN THE EXCEPTIONAL
CIRCUMSTANCES WHERE THE ORDER TO THE PARTIES TO REPAIR TO THE STATE
COURT WOULD CLEARLY SERVE ONE OF TWO IMPORTANT COUNTERVAILING
INTERESTS:  EITHER THE AVOIDANCE OF A PREMATURE AND PERHAPS UNNECESSARY
DECISION OF A SERIOUS FEDERAL CONSTITUTIONAL QUESTION, OR THE AVOIDANCE
OF THE HAZARD OF UNSETTLING SOME DELICATE BALANCE IN THE AREA OF
FEDERAL-STATE RELATIONSHIPS."  LOUISIANA POWER & LIGHT CO. V. CITY OF
THIBODAUX, ANTE, P. 32 (DISSENTING OPINION).   BOTH OF THESE
CIRCUMSTANCES IN WHICH ABSTENTION IS JUSTIFIED ARE PRESENT IN THIS
CASE.  IF THE DISTRICT COURT DIRECTS THE PARTIES TO THE PENNSYLVANIA
COURTS, THOSE COURTS MAY INTERPRET THE CUTTING OFF OF ACCESS RIGHTS AS
A TAKING OF PROPERTY REQUIRING THE PAYMENT OF COMPENSATION UNDER
PENNSYLVANIA LAW.  SUCH AN INTERPRETATION WOULD OBVIATE ANY NEED FOR
DETERMINATION OF THE SERIOUS CONSTITUTIONAL ISSUE RAISED IN THE
DISTRICT COURT. 

FURTHERMORE, THE DISTRICT COURT'S ACTION HAS HALTED AT THE THRESHOLD
THE CARRYING OUT OF A LARGE-SCALE HIGHWAY PROGRAM BEFORE THE STATE
COURTS HAVE HAD AN OPPORTUNITY TO INTERPRET THE STATUTE CREATING THAT
PROGRAM.  THIS CONSTITUTES AN UNNECESSARY INTERFERENCE WITH STATE
DOMESTIC POLICY CREATING UNDESIRABLE FRICTION IN FEDERAL-STATE
RELATIONSHIPS. 

THEREFORE, I CONCUR IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

WE ARE ALL AGREED THAT THE DISTRICT COURT IMPROPERLY ENJOINED THE
ENFORCEMENT OF THE PENNSYLVANIA STATUTE.  BUT I BELIEVE THAT THESE
PROPERTY OWNERS ARE ENTITLED TO A DECLARATORY JUDGMENT BY THE FEDERAL
COURT, DETERMINING WHETHER ACCESS TO A HIGHWAY IS A PROPERTY RIGHT,
COMPENSABLE UNDER THE FIFTH AMENDMENT (AND MADE APPLICABLE TO THE
STATES THROUGH THE FOURTEENTH, CHICAGO, B.&Q.R. CO. V. CHICAGO, 166
U.S. 226). 

CONGRESS HAS GRANTED THE DISTRICT COURTS JURISDICTION OVER CASES
ARISING "UNDER THE CONSTITUTION," 28 U.S.C. SEC. 1331, AS THIS ONE
DOES.  THAT JURISDICTION NEED NOT BE EXERCISED WHERE IT WOULD BE
OBSTRUCTIVE OF STATE ACTION AND LEAD TO NEEDLESS INTERFERENCE WITH
STATE AGENCIES.  ALABAMA COMM'N V. SOUTHERN R. CO., 341 U.S. 341.  IT
LIKEWISE NEED NOT BE EXERCISED WHERE THE RESOLUTION OF STATE LAW
QUESTIONS - WHICH ARE COMPLEX OR UNSETTLED - MAY MAKE IT UNNECESSARY TO
REACH A FEDERAL CONSTITUTIONAL QUESTION.  SPECTOR MOTOR CO. V.
MCLAUGHLIN, 323 U.S. 101; CHICAGO V. FIELDCREST DAIRIES, 316 U.S. 168;
AMERICAN FEDERATION OF LABOR V. WATSON, 327 U.S. 582.  AND THESE
PRINCIPLES ARE APPLICABLE IN THE MAIN TO DECLARATORY JUDGMENT ACTIONS
AS WELL AS TO THOSE WHERE INJUNCTIONS ARE SOUGHT.  GREAT LAKES CO. V.
HUFFMAN, 319 U.S. 293.    IN MY VIEW THESE CASES ARE IRRELEVANT HERE. 
WE HAVE AT BOTTOM IN THIS CASE A QUESTION WHETHER ACCESS TO A HIGHWAY
IS A PROPERTY RIGHT WHICH IS COMPENSABLE UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS.  IF IT IS COMPENSABLE, AS THE DISTRICT COURT RULED, SEE 160
F. SUPP. 404, 410-412, THIS IS THE MOST APPROPRIATE TIME TO MAKE THE
ANNOUNCEMENT.  PARTICULARLY IS THIS SO WHEN APPELLEES IN THIS CASE
SOUGHT A DECLARATION BY THE STATE COURT OF THEIR RIGHTS UNDER THE
STATUTE AND WERE TOLD THAT "THEIR CONSTITUTIONAL RIGHTS, WHATEVER THEY
MAY BE, WILL BE GUARDED AND PROTECTED."  SUCH A RULING BY THE DISTRICT
COURT WOULD NOT HALT THE HIGHWAY PROGRAM.  BUT IT MIGHT HAVE AN EFFECT
ON ENGINEERING DESIGNS FOR NEW LOCAL SERVICE ROADS TO PROVIDE
SUBSTITUTE MEANS OF ACCESS TO THE HIGHWAYS; AND IT WOULD MAKE CLEAR TO
THE LOCAL AUTHORITIES WHAT THE SCOPE OF THEIR FINANCIAL COMMITMENTS IN
THE UNDERTAKING IS. 

A DETERMINATION OF APPELLEES' PROPERTY RIGHTS WOULD NOT BE A
PREMATURE DECISION BECAUSE OF THE INABILITY TO FORECAST HOW THE STATE
WILL EFFECT ITS GOAL OF LIMITING ACCESS TO ITS HIGHWAY.  WHETHER OR NOT
THE LANDOWNERS WILL BE LEFT LANDLOCKED OR GIVEN ACCESS TO SUBSTITUTE
SERVICE ROADS GOES ONLY TO THE QUESTION OF THE AMOUNT OF PROPERTY
"TAKEN," IF ANY.  IT HAS NOTHING TO DO WITH THE QUESTION OF THE
LANDOWNER'S PROPERTY RIGHT IN ACCESS TO A HIGHWAY ABUTTING HIS LAND. 

WE HAVE WITNESSED IN RECENT TIMES A HOSTILITY TO THE EXERCISE BY
FEDERAL COURTS OF THEIR POWER TO DECLARE WHAT A CITIZEN'S RIGHTS ARE
UNDER LOCAL LAW IN DIVERSITY CASES (LOUISIANA POWER & LIGHT CO. V.
THIBODAUX, ANTE, P. 25) AND IN CASES WHERE FEDERAL RIGHTS ARE INVOKED. 
PUBLIC SERVICE COMM'N V. WYCOFF CO., 344 U.S. 237; HARRISON V. NAACP,
ANTE, P. 167.  I THINK THE FEDERAL COURTS, CREATED BY THE FIRST
CONGRESS, ARE TODAY A HAVEN WHERE RIGHTS CAN SOMETIMES BE ADJUDICATED
EVEN MORE DISPASSIONATELY THAN IN STATE TRIBUNALS.  AT LEAST CONGRESS
IN ITS WISDOM HAS PROVIDED SINCE 1875 (18 STAT.  470) THAT THE LOWER
FEDERAL COURTS SHOULD BE THE GUARDIAN OF FEDERAL RIGHTS.  THE JUDICIAL
INTOLERANCE OF DIVERSITY JURISDICTION, NOTED BY MY BROTHER BRENNAN IN
HIS DISSENT IN LOUISIANA POWER & LIGHT CO. V. THIBODAUX, SUPRA, SEEMS
TO BE SPREADING TO OTHER HEADS OF FEDERAL JURISDICTION AS THE DECISIONS
IN THIS CASE AND IN HARRISON V. NAACP, (FN1) SUPRA, SUGGEST.  TRUE IT
IS, THAT THE EXERCISE OF THAT POWER IN SOME CASES WOULD BE SO UTTERLY
DISRUPTIVE OF STATE-FEDERAL RELATIONS AS TO MAKE IT UNDESIRABLE.  AS A
GENERAL RULE, HOWEVER, THE FEDERAL COURTS SHOULD BE RESPONSIBLE FOR THE
EXPOSITION OF FEDERAL LAW.  IT SHOULD BE THEIR RESPONSIBILITY IN CASES
PROPERLY BEFORE THEM UNDER HEADS OF JURISDICTION PRESCRIBED BY CONGRESS
TO CONSTRUE FEDERAL STATUTES AND THE FEDERAL CONSTITUTION.  THERE IS NO
MORE APPROPRIATE OCCASION FOR THE EXERCISE OF THAT JURISDICTION THAN
THE PRESENT CASE WHICH INVOLVES THE QUESTION WHETHER OR NOT ACCESS
RIGHTS CONSTITUTE "PROPERTY" IN THE CONSTITUTIONAL SENSE.  (FN2)  THAT
QUESTION CONCERNS NOT STATE LAW BUT A CONCEPT IMBEDDED IN THE BILL OF
RIGHTS.  IT IS IN NO WAY ENTANGLED WITH LOCAL LAW.  THE SUPREMACY
CLAUSE OF THE CONSTITUTION MAKES ALL LOCAL PROJECTS BOW TO THAT CONCEPT
OF "PROPERTY."  AND IN MY VIEW THERE IS NO MORE APPROPRIATE TRIBUNAL
FOR AN ADJUDICATION OF THAT ISSUE THAN THE FEDERAL DISTRICT COURT,
WHICH IN THIS CASE ACTED AT THE VERY THRESHOLD OF THIS ENGINEERING
PROJECT AND MADE A RULING THAT INFORMS THE LOCAL AUTHORITIES OF THE
FULL REACH OF THEIR RESPONSIBILITIES.  THIS IS NOT INTERMEDDLING IN
STATE AFFAIRS NOR CREATING NEEDLESS FRICTION.  IT IS AN AUTHORITATIVE
PRONOUNCEMENT AT THE BEGINNING OF A CONTROVERSY WHICH SAVES COUNTLESS
DAYS IN THE SLOW, PAINFUL, AND COSTLY LITIGATION OF SEPARATE INDIVIDUAL
LAWSUITS IN STATE VIEWERS PROCEEDINGS. 

FN1  THE HARRISON CASE INVOKED FEDERAL JURISDICTION NOT ONLY UNDER 28
U.S.C. SEC. 1331 AND SEC. 1332 (DIVERSITY) BUT ALSO UNDER SEC. 1343
(CIVIL RIGHTS). 

FN2  TITLE 28 U.S.C. SEC. 2201 PERMITS A FEDERAL COURT TO DECLARE A
PARTY'S RIGHTS IN THE CASE OF AN ACTUAL CONTROVERSY.  THERE IS SUCH A
CONTROVERSY HERE.  APPELLANTS HAVE EXPRESSED THEIR INTENTION TO DECLARE
THE HIGHWAY ON WHICH APPELLEES' PROPERTIES ABUT TO BE A LIMITED ACCESS
HIGHWAY, AND HAVE CONSISTENTLY ARGUED THAT APPELLEES HAVE NO RIGHT TO
COMPENSATION, ALTHOUGH THEY MAY BE DENIED ACCESS TO THE HIGHWAY WHICH
THEY PREVIOUSLY HAD.  THIS IS ENOUGH TO CREATE AN ACTUAL CONTROVERSY
WHICH A FEDERAL COURT MAY SETTLE IF ITS PROCESSES ARE, AS HERE,
PROPERLY INVOKED. 
..END :









MILLS V. LOUISIANA 360 U.S. 230 


NO. 74.  ARGUED APRIL 22, 1959.  - DECIDED JUNE 8, 1959.* - AFFIRMED. 

*TOGETHER WITH NO. 75, MILLS V. LOUISIANA, ALSO ON CERTIORARI TO THE
SAME COURT. 


REFUSING AN OFFER OF FULL IMMUNITY FROM STATE PROSECUTION AND CLAIMING
THE FEDERAL PRIVILEGE AGAINST SELF-INCRIMINATION, PETITIONERS WERE
CONVICTED OF CONTEMPT IN A STATE COURT FOR REFUSING TO ANSWER BEFORE A
STATE GRAND JURY QUESTIONS THE ANSWERS TO WHICH THEY CLAIMED WOULD
EXPOSE THEM TO FEDERAL PROSECUTION FOR VIOLATION OF THE INCOME TAX
LAWS.  THERE WAS EVIDENCE OF CLOSE COOPERATION BETWEEN STATE AND
FEDERAL AUTHORITIES.  HELD:  THE JUDGMENTS ARE AFFIRMED ON THE
AUTHORITY OF KNAPP V. SCHWEITZER, 357 U.S. 371. 

MILLS ET AL. V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE JUDGMENTS ARE AFFIRMED.  KNAPP V. SCHWEITZER, 357 U.S. 371. 

MR. JUSTICE BRENNAN JOINS THE COURT'S OPINION, REITERATING HIS
BELIEF, EXPRESSED IN KNAPP V. SCHWEITZER, 357 U.S. 371, 381, THAT
RECONSIDERATION OF THE HOLDING IN FELDMAN V. UNITED STATES, 322 U.S.
487, IS INAPPROPRIATE IN THIS CASE.  HE ALSO REITERATES HIS BELIEF THAT
NOTHING IN THIS DECISION FORECLOSES RECONSIDERATION OF THE FELDMAN
HOLDING IN A CASE PRESENTING THE ISSUE PRESENTED BY FELDMAN. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

IN KNAPP V. SCHWEITZER, 357 U.S. 371, THE COURT LEFT OPEN THE
QUESTION WHETHER IN THE CASE OF COLLABORATION BETWEEN STATE AND FEDERAL
OFFICERS A WITNESS COULD SUCCESSFULLY ASSERT THE FEDERAL PRIVILEGE
AGAINST SELF-INCRIMINATION IN A STATE PROCEEDING.  IN MY VIEW, THAT
QUESTION SHOULD BE ANSWERED HERE, FOR THE RECORDS IN THESE CASES SHOW
SUCH COLLABORATION.  YET THE MAJORITY OF THE COURT IGNORES THE QUESTION
IN AFFIRMING WITHOUT OPINION.  THEREFORE, ALTHOUGH I AGREE WITH AND
JOIN THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS, I ADD THESE
ADDITIONAL VIEWS. 

THE PETITIONERS IN THESE CASES WERE HELD IN CONTEMPT FOR FAILURE TO
ANSWER QUESTIONS BEFORE A STATE GRAND JURY INVESTIGATING THE BRIBERY OF
POLICE OFFICIALS OF NEW ORLEANS BY PERSONS CONDUCTING LOTTERY
OPERATIONS WITHIN THAT CITY.  FROM THE NATURE OF THE QUESTIONS ASKED
PETITIONERS, IT IS EVIDENT THAT THEY WERE SUSPECTED OF ENGAGING IN
LOTTERIES AND GIVING BRIBES.  THE DISTRICT ATTORNEY OF THE PARISH
OFFERED PETITIONERS FULL IMMUNITY FROM STATE PROSECUTION FOR CRIMES,
OTHER THAN PERJURY, UNCOVERED BY THE QUESTIONING.  NEVERTHELESS,
PETITIONERS REFUSED TO ANSWER QUESTIONS RELATING TO BRIBERY AND THEIR
CONNECTIONS WITH LOTTERY OPERATIONS, PLEADING IN JUSTIFICATION OF THIS
REFUSAL THE FEDERAL PRIVILEGE AGAINST SELF-INCRIMINATION. 

THE CONTEMPT PROCEEDINGS AND THE STATE COURT REVIEWS WERE HAD UPON AN
AGREED STATEMENT OF FACTS.  THESE STIPULATIONS RECITED THAT DURING THE
PENDENCY OF THE STATE GRAND JURY INVESTIGATION "THE INTELLIGENCE
DIVISION, INTERNAL REVENUE SERVICE OF THE UNITED STATES, THE UNITED
STATES ATTORNEY FOR THE EASTERN DISTRICT OF LOUISIANA AND THE UNITED
STATES GRAND JURY HAD BEEN FOR SEVERAL MONTHS AND WERE THEN ENGAGED IN
INVESTIGATING SOME OF THE MEMBERS OF THE NEW ORLEANS POLICE DEPARTMENT
FOR INCOME TAX EVASION, A FELONY UNDER THE LAWS OF THE UNITED STATES." 
IN ADDITION, THE PARTIES AGREED THAT THESE INVESTIGATIONS WERE WELL
PUBLICIZED AND THAT, AT THE TIME OF THE INSTANT PROCEEDINGS, A NUMBER
OF FEDERAL INCOME TAX INDICTMENTS HAD BEEN RETURNED AGAINST POLICE
OFFICERS.  FURTHER, IT WAS ESTABLISHED THAT EACH OF THE PETITIONERS HAD
BEEN REQUESTED TO EXECUTE, AND HAD EXECUTED, WAIVERS OF THE STATUTE OF
LIMITATIONS ON HIS FEDERAL TAX LIABILITIES FOR MOST OF THE YEARS IN
QUESTION.  LASTLY, THE PARTIES STIPULATED: 

"THAT THERE HAS EXISTED, AND NOW EXISTS (AT THE TIME OF THE STATE
PROCEEDING), COOPERATION AND COLLABORATION BETWEEN THE DISTRICT
ATTORNEY FOR THE PARISH OF ORLEANS AND THE UNITED STATES ATTORNEY FOR
THE EASTERN DISTRICT OF LOUISIANA AND THE INTERNAL REVENUE SERVICE OF
THE UNITED STATES OF AMERICA AND ITS INVESTIGATORS, AS WELL AS WITH THE
POLICE BUREAU OF INVESTIGATION OF THE CITY OF NEW ORLEANS IN REFERENCE
TO MEMBERS OF THE NEW ORLEANS POLICE DEPARTMENT REGARDING PUBLIC
BRIBERY AND INCOME TAX EVASION AND THAT THE HONORABLE LEON D. HUBERT,
JR., DISTRICT ATTORNEY FOR THE PARISH OF ORLEANS, HAS HELD CONFERENCES
WITH THE UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF LOUISIANA
REGARDING PUBLIC BRIBERY ON THE PART OF CERTAIN MEMBERS OF THE NEW
ORLEANS POLICE DEPARTMENT AND INCOME TAX EVASION, FELONIES UNDER THE
LAW OF THE UNITED STATES OF AMERICA AND THE STATE OF LOUISIANA." 

IN KNAPP V. SCHWEITZER, SUPRA, WHICH DECIDED THAT THE FEDERAL
PRIVILEGE AGAINST SELF-INCRIMINATION MAY NOT ORDINARILY BE RAISED IN A
STATE PROCEEDING, THE COURT SAID: 

"OF COURSE THE FEDERAL GOVERNMENT MAY NOT TAKE ADVANTAGE OF THIS
RECOGNITION OF THE STATES' AUTONOMY IN ORDER TO EVADE THE BILL OF
RIGHTS.  IF A FEDERAL OFFICER SHOULD BE A PARTY TO THE COMPULSION OF
TESTIMONY BY STATE AGENCIES, THE PROTECTION OF THE FIFTH AMENDMENT
WOULD COME INTO PLAY.  SUCH TESTIMONY IS BARRED IN A FEDERAL
PROSECUTION, SEE BYARS V. UNITED STATES, 273 U.S. 28.  WHETHER, IN A
CASE OF SUCH COLLABORATION BETWEEN STATE AND FEDERAL OFFICERS, THE
DEFENDANT COULD SUCCESSFULLY ASSERT HIS PRIVILEGE IN THE STATE
PROCEEDING, WE NEED NOT NOW DECIDE, FOR THE RECORD BEFORE US IS BARREN
OF EVIDENCE THAT THE STATE WAS USED AS AN INSTRUMENT OF FEDERAL
PROSECUTION OR INVESTIGATION.  PETITIONER'S ASSERTION THAT A FEDERAL
PROSECUTING ATTORNEY ANNOUNCED HIS INTENTION OF COOPERATING WITH STATE
OFFICIALS IN THE PROSECUTION OF CASES IN A GENERAL FIELD OF CRIMINAL
LAW PRESENTS A SITUATION DEVOID OF LEGAL SIGNIFICANCE AS A JOINT STATE
AND FEDERAL ENDEAVOR."  357 U.S., AT 380. 

I DISSENTED FROM THAT DECISION ON THE GROUND THAT THE STATE COURT HAD
DECIDED THAT THE FEDERAL PRIVILEGE DID NOT OBTAIN ON THE SEEMINGLY
FALSE PREMISE THAT INFORMATION ADDUCED IN THE STATE PROCEEDING COULD
NOT BE USED AGAINST THE PETITIONER IN A SUBSEQUENT FEDERAL
PROSECUTION.  BUT EVEN ACCEPTING, FOR THE PURPOSE OF ARGUMENT, THE
VALIDITY OF THE KNAPP RESULT, I AM OF THE VIEW THAT THE QUESTION WHICH
WAS NOT ANSWERED THERE SHOULD BE CONSIDERED HERE AND RESOLVED IN FAVOR
OF THE PETITIONERS. 

THE KNAPP DECISION WHEN TAKEN IN CONJUNCTION WITH FELDMAN V. UNITED
STATES, 322 U.S. 487, MEANS THAT A PERSON CAN BE CONVICTED OF A FEDERAL
CRIME ON THE BASIS OF TESTIMONY WHICH HE IS COMPELLED TO GIVE IN A
STATE INVESTIGATION.  THIS OPENS VAST OPPORTUNITIES FOR CALCULATED
EFFORTS BY STATE AND FEDERAL OFFICIALS WORKING TOGETHER TO FORCE A
DISCLOSURE IN A STATE PROCEEDING AND TO CONVICT ON THE BASIS OF THAT
DISCLOSURE IN A FEDERAL PROCEEDING.  SUCH OPPORTUNITIES WILL NOT GO
UNUSED UNLESS THE COURTS ARE VIGILANT TO PROTECT THE RIGHTS OF PERSONS
WHO FIND THEMSELVES FACED WITH SUCH COACTION OF FEDERAL AND STATE
PROSECUTING AGENCIES.  SUCH VIGILANCE BECOMES INCREASINGLY REQUIRED AS
THE FEDERAL GOVERNMENT, THROUGH PROSECUTIONS FOR TAX EVASION, MOVES
INTO THE CRIMINAL AREAS REGULATED BY THE STATES.* 

*CF. COMMISSIONER V. WILCOX, 327 U.S. 404; RUTKIN V. UNITED STATES,
343 U.S. 130; UNITED STATES V. CALAMARO, 354 U.S. 351; ROLLINGER V.
UNITED STATES, 208 F.2D 109; BERRA V. UNITED STATES, 221 F.2D 590;
SCHIRA V. COMMISSIONER, 240 F.2D 672; UNITED STATES V. WAMPLER, 5 F.
SUPP. 796; UNITED STATES V. IOZIA, 104 F. SUPP. 846. 

IN THE INSTANT CASE THE RECORD SHOWS CLEARLY THAT STATE AND FEDERAL
AUTHORITIES HAD LAUNCHED A COORDINATED INVESTIGATION INTO THE SUSPECTED
BRIBERY BY GAMBLERS OF NEW ORLEANS' POLICE OFFICERS.  THE STATE WAS
INTERESTED PRIMARILY IN THE ENFORCEMENT OF ITS PUBLIC BRIBERY
STATUTES.  THE FEDERAL GOVERNMENT SOUGHT TO APPREHEND TAX EVADERS.  THE
STATE AND FEDERAL AGENCIES INVOLVED IN THIS TWO-FOLD INVESTIGATION
COLLABORATED TO OBTAIN DESIRED ENDS.  POLICEMEN SUSPECTED OF TAKING
BRIBES AND GAMBLERS SUSPECTED OF GIVING THEM WERE CALLED FOR
QUESTIONING.  BOTH WERE IN JEOPARDY OF PROSECUTION:  THE POLICE UNDER
STATE STATUTE FOR TAKING BRIBES AND UNDER FEDERAL STATUTE FOR INCOME
TAX EVASION; THE GAMBLERS UNDER STATE STATUTE FOR GIVING BRIBES AND
UNDER FEDERAL STATUTES FOR INCOME TAX EVASION AND FOR FAILURE TO PAY
THE SPECIAL STAMP AND EXCISE TAXES LEVIED ON GAMBLING OPERATIONS. 
DOUBT WHICH MIGHT HAVE EXISTED CONCERNING FEDERAL INTEREST IN
PETITIONERS' POSSIBLE TAX EVASIONS WAS REMOVED WHEN PETITIONERS WERE
INDUCED TO WAIVE THE STATUTE OF LIMITATIONS FOR RELEVANT TAX YEARS. 

THE OPINION IN THE KNAPP CASE STATES THAT THE PROTECTION OF THE FIFTH
AMENDMENT COMES INTO PLAY IF A FEDERAL OFFICER IS A PARTY TO THE
COMPULSION OF TESTIMONY BY A STATE AGENCY.  357 U.S. 371, 380.  THE
THRESHOLD QUESTION THEN IS WHETHER THE REQUISITE RELATIONSHIP EXISTED
BETWEEN THE STATE DISTRICT ATTORNEY AND THE UNITED STATES ATTORNEY AND
INTERNAL REVENUE AGENTS.  THE STIPULATION, WHEN READ IN THE LIGHT OF
THE KNOWN FACTS, ADEQUATELY SHOWS THAT FEDERAL OFFICERS PARTICIPATED IN
THE STATE ACTION WHICH SOUGHT TO COMPEL THE TESTIMONY OF PETITIONERS. 
THAT STIPULATION, SIGNED BY THE STATE PROSECUTOR, ADMITS OF
"COOPERATION," "COLLABORATION," AND "CONFERENCES."  THESE TERMS VIEWED
AGAINST THE BACKGROUND OF CONTEMPORANEOUS INVESTIGATIONS BY A FEDERAL
GRAND JURY, A STATE GRAND JURY, THE POLICE BUREAU OF INVESTIGATION OF
THE CITY OF NEW ORLEANS, AND THE INTELLIGENCE DIVISION OF THE INTERNAL
REVENUE SERVICE, ALL POINTED AT A GROUP OF PERSONS WHICH INCLUDED
PETITIONERS, REQUIRE THE CONCLUSION THAT THE STATE WAS USED AS AN
INSTRUMENT OF FEDERAL INVESTIGATION. 

I COME THEN TO THE QUESTION LEFT OPEN IN THE KNAPP CASE:  WHETHER,
WHERE, AS HERE, A STATE IS USED AS AN INSTRUMENT OF FEDERAL
INVESTIGATION, WITNESSES CAN SUCCESSFULLY ASSERT THEIR FEDERAL
PRIVILEGE AGAINST SELF-INCRIMINATION IN STATE PROCEEDINGS.  KNAPP V.
SCHWEITZER, SUPRA, SUGGESTS THAT WHERE TESTIMONY IS COMPELLED IN SUCH
CIRCUMSTANCES, THE TESTIMONY WOULD BE INADMISSIBLE IN A SUBSEQUENT
FEDERAL PROSECUTION.  SEE BYARS V. UNITED STATES, 273 U.S. 28.  SEE
ALSO FELDMAN V. UNITED STATES, 322 U.S. 487, 494.  BUT THIS IS ONLY
PARTIAL PROTECTION.  TO COMPEL TESTIMONY IN A FEDERAL INVESTIGATION, A
WITNESS MUST BE ASSURED AT THE OUTSET COMPLETE IMMUNITY FROM ANY
PROSECUTION WHICH MIGHT RESULT FROM HIS COMPELLED DISCLOSURES. 
COUNSELMAN V. HITCHCOCK, 142 U.S. 547; BROWN V. WALKER, 161 U.S. 591;
BLAU V. UNITED STATES, 340 U.S. 159; ULLMANN V. UNITED STATES, 350 U.S.
422, 430.  THERE IS NO INDICATION THAT SUCH PROTECTION OBTAINS HERE -
THAT PETITIONERS ARE PROTECTED FROM FEDERAL PROSECUTIONS WHICH MIGHT
RESULT FROM THEIR TESTIMONY EVEN THOUGH THAT TESTIMONY IS NOT
ADMISSIBLE IN THE SUBSEQUENT PROCEEDING.  BYARS V. UNITED STATES,
SUPRA, MERELY PROHIBITS THE INTRODUCTION OF ILLEGALLY SEIZED EVIDENCE
AND KNAPP V. SCHWEITZER, SUPRA, AND FELDMAN V. UNITED STATES, SUPRA,
SPEAK MERELY OF THE NON-USE OF THE COMPELLED TESTIMONY IN A SUBSEQUENT
FEDERAL PROSECUTION.  NONE OF THESE CASES DEALS WITH THE FRUITS OF THE
COMPELLED TESTIMONY, AND DEFENDANTS, LIKE PETITIONERS, WHO ARE FORCED
TO TESTIFY UNDER CIRCUMSTANCES SIMILAR TO THOSE HERE PRESENT, ARE LEFT
WITHOUT THE PROTECTION AGAINST SELF-INCRIMINATION INTENDED BY THE
CONSTITUTION.  THESE CASES, IN MY OPINION, SHOULD BE EXTENDED TO
PROHIBIT ANY PROSECUTION RESULTING FROM DISCLOSURES COMPELLED UNDER
CIRCUMSTANCES SIMILAR TO THOSE WHICH EXIST HERE.  BUT THIS IS NOT AN
ESTABLISHED PRINCIPLE AND A WITNESS IS ENTITLED TO MORE THAN HOPES OF
IMMUNITY WHEN FEDERAL AGENCIES SEEK TO COMPEL INCRIMINATORY TESTIMONY. 
THEREFORE, IN MY VIEW, PETITIONERS PROPERLY INVOKED THEIR FEDERAL
PRIVILEGE AGAINST SELF-INCRIMINATION IN THE PRESENT PROCEEDING AND THE
CONTEMPTS SHOULD BE DISCHARGED.  CF. REA V. UNITED STATES, 350 U.S.
214; BARTKUS V. ILLINOIS, 359 U.S. 121, 164 (DISSENTING OPINION). 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

PETITIONERS IN THESE CASES WERE SUMMONED BEFORE A STATE GRAND JURY IN
NEW ORLEANS AND INTERROGATED CONCERNING BRIBERY OF PUBLIC OFFICIALS AND
INCOME TAX EVASION.  THEY WERE AT THE TIME BEING INVESTIGATED BY THE
FEDERAL INTERNAL REVENUE SERVICE.  ACCORDINGLY, THEY OBJECTED TO THE
QUESTIONS, INVOKING THE FIFTH AMENDMENT AND STATING THAT THE ANSWERS TO
THE QUESTIONS WOULD TEND TO INCRIMINATE THEM.  THEIR OBJECTIONS WERE
OVERRULED AND THEY WERE HELD IN CONTEMPT FOR REFUSAL TO ANSWER.  THE
SUPREME COURT OF LOUISIANA REFUSED WRITS OF CERTIORARI, MANDAMUS, AND
PROHIBITION, FINDING "NO ERROR OF LAW IN THE RULING COMPLAINED OF." 
THE CASES ARE HERE ON CERTIORARI.  358 U.S. 810. 

IT HAS BEEN THE PREVAILING VIEW SINCE TWINING V. NEW JERSEY, 211 U.S.
78, THAT THE GUARANTY OF THE FIFTH AMENDMENT THAT NO PERSON "SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF" IS NOT
MADE APPLICABLE TO THE STATES THROUGH THE FOURTEENTH AMENDMENT. 
ADAMSON V. CALIFORNIA, 332 U.S. 46.  UNDER THE TWINING RULE, THE
LOUISIANA COURTS, THEREFORE, NEED NOT BOW TO THE FIFTH AMENDMENT AS A
REQUIREMENT READ INTO STATE LAW BY THE BILL OF RIGHTS. 

THAT IS NOT, HOWEVER, THE END OF OUR PROBLEM.  FOR THE QUESTION
REMAINS WHETHER A STATE COURT CAN OVERRIDE A CLAIM OF FEDERAL RIGHT
SEASONABLY RAISED IN THE STATE PROCEEDING, WHEN THE FAILURE TO
RECOGNIZE THE FEDERAL RIGHT WILL RESULT IN ITS DESTRUCTION OR
NULLIFICATION. 

THE CLASSICAL CASE INVOLVES A FEDERAL RIGHT IN THE CONDUCT OF A
BUSINESS, AS IN THE CASE OF THE CONTRACTOR IN LESLIE MILLER, INC. V.
ARKANSAS, 352 U.S. 187, WHO, HAVING BEEN THE SUCCESSFUL BIDDER FOR
FEDERAL CONSTRUCTION WORK, COULD NOT BE SUBJECTED TO CONFLICTING STATE
LICENSING REQUIREMENTS.  RELATED CASES ARE IN THE CLASS OF SERVICE
STORAGE & TRANSFER CO. V. VIRGINIA, 359 U.S. 171, AND CASTLE V. HAYES
FREIGHT LINES, 348 U.S. 61, WHICH HOLD THAT AN INTERSTATE MOTOR CARRIER
CERTIFICATE ISSUED BY THE INTERSTATE COMMERCE COMMISSION COULD NOT BE
OVERRIDDEN IN STATE PROCEEDINGS.  LITIGANTS ASSERTING FEDERAL RIGHTS AS
THE BASIS OF A CLAIM (TESTA V. KATT, 330 U.S. 386) OR AS A DEFENSE TO A
CLAIM UNDER STATE LAW (MILES V. ILLINOIS CENTRAL R. CO., 315 U.S. 698)
MAY DO SO IN STATE COURTS WHICH MUST RECOGNIZE AND PROTECT THE FEDERAL
RIGHTS.  CHIEF JUSTICE WHITE STATED IT AS THE "DUTY RESTING UPON" STATE
AND FEDERAL COURTS "TO PROTECT AND ENFORCE RIGHTS LAWFULLY CREATED,
WITHOUT REFERENCE TO THE PARTICULAR GOVERNMENT FROM WHOSE EXERCISE OF
LAWFUL POWER THE RIGHT AROSE."   MINNEAPOLIS & ST. LOUIS R. CO. V.
BOMBOLIS, 241 U.S. 211, 223.  LITIGANTS, RESTING ON A FEDERAL RIGHT,
NEED NOT RESORT TO FEDERAL COURTS TO PROTECT THOSE RIGHTS WHERE THOSE
RIGHTS ARE PUT IN JEOPARDY IN STATE PROCEEDINGS. 

THERE IS NO MORE APT ILLUSTRATION OF THAT PRINCIPLE THAN THE PRESENT
CASE.  THE FIFTH AMENDMENT TO THE CONSTITUTION RESERVES A TWOFOLD
FEDERAL GUARANTEE FOR EVERY CITIZEN.  IT PROTECTS HIM FROM BEING FORCED
TO GIVE TESTIMONY IN ANY FEDERAL PROCEEDING, CRIMINAL OR CIVIL
(COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562; MCCARTHY V. ARNDSTEIN, 262
U.S. 355, 266 U.S. 34), JUDICIAL, INVESTIGATIVE OR ADMINISTRATIVE
(QUINN V. UNITED STATES, 349 U.S. 155, 161; SMITH V. UNITED STATES, 337
U.S. 137), WHICH MIGHT TEND TO INCRIMINATE HIM.  AND IT ALSO ASSURES
THAT NO INCRIMINATING INFORMATION ADDUCED FROM A DEFENDANT
INVOLUNTARILY BY ANYONE, ANYWHERE, MAY BE ADMITTED INTO EVIDENCE
AGAINST HIM IN ANY FEDERAL PROSECUTION.  BRAM V. UNITED STATES, 168
U.S. 532; WAN V. UNITED STATES, 266 U.S. 1.  IT WAS TO THIS SECOND
PRINCIPLE THAT THE RULING OF THIS COURT IN FELDMAN V. UNITED STATES,
322 U.S. 487, WAS UNFAITHFUL.  AS LONG AS THAT DECISION IS ADHERED TO,
THE EVIDENCE OBTAINED IN A STATE PROCEEDING SUCH AS THE ONE IN THIS
CASE CAN BE USED IN A FEDERAL PROSECUTION.  IT IS, THEREFORE, TOO LATE
TO PROTECT THE FEDERAL RIGHT IF ONE WAITS FOR ACTION BY THE FEDERAL
COURT.  THE FEDERAL RIGHT IS LOST IRRETRIEVABLY, IF IT IS NOT SAVED BY
THE STATE COURT.  AS STATED BY THE SUPREME COURT OF MICHIGAN IN PEOPLE
V. DENUYL, 318 MICH. 645, 651, 29 N.W.2D 284, 287: 

"IT SEEMS LIKE A TRAVESTY ON VERITY TO SAY THAT ONE IS NOT SUBJECTED
TO SELF-INCRIMINATION WHEN COMPELLED TO GIVE TESTIMONY IN A STATE
JUDICIAL PROCEEDING WHICH TESTIMONY MAY FORTHWITH BE USED AGAINST HIM
IN A FEDERAL CRIMINAL PROSECUTION." 

IF THE DISSENT IN FELDMAN V. UNITED STATES, SUPRA, HAD PREVAILED AND
TESTIMONY COMPELLED FROM A WITNESS IN A STATE PROCEEDING HAD BEEN
BARRED FROM USE AGAINST HIM WHEN HE BECAME A DEFENDANT IN A FEDERAL
PROCEEDING, PROTECTION OF THE FEDERAL RIGHT AGAINST SELF-INCRIMINATION
COULD BE LEFT TO THE FEDERAL COURTS.  BUT FELDMAN, UNTIL IT IS
OVERRULED, CONTROLS THE REGIMES UNDER WHICH STATE INVESTIGATIONS ARE
MADE AND FEDERAL PROSECUTIONS CONDUCTED.  AS LONG AS IT IS ON THE BOOKS
THE ONLY PLACE A WITNESS, WHO IS BEING EXAMINED IN STATE PROCEEDINGS
ABOUT MATTERS THAT MAY INCRIMINATE HIM UNDER FEDERAL LAWS, CAN PROTECT
HIS RIGHTS AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT IS IN
THE STATE COURTS. 

KNAPP V. SCHWEITZER, 357 U.S. 371, IS CONTRARY TO THE DISPOSITION I
WOULD MAKE OF THE PRESENT CASES.  BUT IT IS NOT A PRINCIPLED DECISION
THAT ADDRESSED ITSELF TO THE PROPOSITION THAT UNLESS THE FEDERAL RIGHT
IS PROTECTED IN THE STATE PROCEEDING IT IS LOST FOREVER.  THE OPINION
IN THAT CASE WAS CONCERNED WITH MAINTAINING THE VITALITY OF STATE
INVESTIGATIONS.  NOT ONCE DID IT MENTION FELDMAN V. UNITED STATES,
SUPRA, NOR ADDRESS ITSELF TO THE DILEMMA CREATED BY THAT DECISION. 
NOWHERE DOES IT EXPLAIN HOW IN LIGHT OF FELDMAN V. UNITED STATES THE
FEDERAL RIGHT CAN BE PROTECTED AND THE VITALITY OF STATE INVESTIGATIONS
ALSO MAINTAINED.  I HAVE SAID ENOUGH TO INDICATE THAT BOTH CANNOT BE
DONE BY AFFIRMING THESE JUDGMENTS.  AS LONG AS FELDMAN V. UNITED STATES
STANDS ON THE BOOKS, THE STATE COURTS SHOULD BE REQUIRED TO RECOGNIZE
THE FEDERAL RIGHT AGAINST SELF-INCRIMINATION - LEST IT BE LOST
FOREVER. 
..END :













NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. ALABAMA,
PATTERSON 360 U.S. 240 


NO. 753.  DECIDED JUNE 8, 1959.* - 268 ALA. 53, 109 SO. 2D 138,
REVERSED. 

*TOGETHER WITH NO. 674, MISC., NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE V. LIVINGSTON, CHIEF JUSTICE OF THE
SUPREME COURT OF ALABAMA, ET AL., ON MOTION FOR LEAVE TO FILE AND
PETITION FOR WRIT OF MANDAMUS. 


HAVING BEEN LED BY BOTH PARTIES AND THE STATE OF THE RECORD TO TREAT
AS THE SOLE ISSUE BEFORE IT ON THE MERITS THE QUESTION WHETHER ALABAMA
COULD CONSTITUTIONALLY COMPEL PETITIONER TO PRODUCE ITS MEMBERSHIP
LISTS IN COURT, THIS COURT REVERSED A DECISION OF THE SUPREME COURT OF
ALABAMA SUSTAINING A CONVICTION OF CONTEMPT FOR FAILING TO DO SO.  357
U.S. 449.  ON REMAND OF THE CASE TO THE SUPREME COURT OF ALABAMA FOR
PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT, THE STATE
SUPREME COURT "AGAIN AFFIRMED" THE CONTEMPT CONVICTION AND FINE WHICH
THIS COURT HAD SET ASIDE - ON THE GROUND THAT THIS COURT WAS "MISTAKEN"
IN CONSIDERING THAT PETITIONER HAD COMPLIED WITH THE PRODUCTION ORDER
EXCEPT AS TO ITS MEMBERSHIP LISTS.  HELD: 

1.  CERTIORARI GRANTED.  P. 241. 

2.  THE JUDGMENT OF THE STATE SUPREME COURT IS REVERSED, SINCE IT IS
NOW TOO LATE FOR THE STATE TO CLAIM THAT PETITIONER HAD FAILED TO
COMPLY WITH THE PRODUCTION ORDER IN OTHER RESPECTS, THAT ISSUE BEING
FORECLOSED BY THIS COURT'S PRIOR DISPOSITION OF THE CASE.  PP. 244
245. 

3.  UPON FURTHER PROCEEDINGS, THE TRIAL COURT MAY REQUIRE PETITIONER
TO PRODUCE ANY SUCH ADDITIONAL ITEMS, NOT INCONSISTENT WITH THIS AND
THE EARLIER OPINION OF THIS COURT, THAT MAY BE APPROPRIATE, REASONABLE
AND CONSTITUTIONAL UNDER THE CIRCUMSTANCES THEN APPEARING.  P. 245. 

4.  ASSUMING THAT THE STATE SUPREME COURT WILL NOT FAIL TO PROCEED
PROMPTLY WITH THE DISPOSITION OF THE MATTERS LEFT OPEN UNDER THIS
COURT'S MANDATE FOR FURTHER PROCEEDINGS, PETITIONER'S APPLICATION FOR A
WRIT OF MANDAMUS IS DENIED.  P. 245. 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. ALABAMA EX
REL. PATTERSON. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED. 

IN OUR ORIGINAL OPINION IN THIS CASE, 357 U.S. 449, WE HELD THE
ALABAMA JUDGMENT OF CIVIL CONTEMPT AGAINST THIS PETITIONER, TOGETHER
WITH THE $100,000 FINE WHICH IT CARRIED, CONSTITUTIONALLY IMPERMISSIBLE
IN THE CIRCUMSTANCES DISCLOSED BY THE RECORD.  WE DECLINED, HOWEVER, TO
REVIEW THE TRIAL COURT'S RESTRAINING ORDER PROHIBITING PETITIONER FROM
ENGAGING IN FURTHER ACTIVITIES IN THE STATE, THAT ORDER THEN NOT BEING
PROPERLY BEFORE US.  357 U.S., AT 466-467.  OUR MANDATE, ISSUED ON
AUGUST 1, 1958, ACCORDINGLY REMANDED THE CASE TO THE SUPREME COURT OF
ALABAMA "FOR PROCEEDINGS NOT INCONSISTENT WITH" OUR OPINION. 

IN DUE COURSE THE PETITIONER MOVED IN THE SUPREME COURT OF ALABAMA
THAT OUR MANDATE BE FORWARDED TO THE CIRCUIT COURT OF MONTGOMERY COUNTY
FOR THE FURTHER PROCEEDINGS WHICH WERE LEFT OPEN BY OUR DECISION. 
AFTER THE MOTION HAD BEEN TWICE RENEWED (FN1) THE SUPREME COURT OF
ALABAMA ON FEBRUARY 12, 1959, "AGAIN AFFIRMED" THE CONTEMPT
ADJUDICATION AND $100,000 FINE WHICH THIS COURT HAD SET ASIDE.  (FN2)
FINDING THAT THE CIRCUIT COURT HAD DETERMINED THAT PETITIONER HAD
FAILED TO "PRODUCE THE DOCUMENTS DESCRIBED" IN ITS PRODUCTION ORDER,
THE STATE SUPREME COURT CONCLUDED THAT THIS COURT WAS "MISTAKEN" IN
CONSIDERING THAT, EXCEPT FOR THE REFUSAL TO PROVIDE ITS MEMBERSHIP
LISTS, PETITIONER HAD COMPLIED, OR TENDERED SATISFACTORY COMPLIANCE,
WITH SUCH ORDER.  THIS CONCLUSION WAS CONSIDERED AS "NECESSITATING
ANOTHER AFFIRMANCE OF THE (CONTEMPT) JUDGMENT," INVOLVING, SO THE STATE
COURT THOUGHT, MATTERS NOT COVERED BY THE OPINION AND MANDATE OF THIS
COURT. 

WE HAVE REVIEWED THE PETITION, THE RESPONSE OF THE STATE AND ALL OF
THE BRIEFS AND THE RECORD FILED HERE IN THE FORMER PROCEEDINGS. 
PETITIONER THERE CLAIMED THAT IT HAD SATISFACTORILY COMPLIED WITH THE
PRODUCTION ORDER, EXCEPT AS TO ITS MEMBERSHIP LISTS, AND THIS THE STATE
DID NOT DENY.  IN FACT, ASIDE FROM THE PROCEDURAL POINT, BOTH THE STATE
AND PETITIONER IN THE CERTIORARI PAPERS POSED ONE IDENTICAL QUESTION,
NAMELY, HAD THE PETITIONER "THE CONSTITUTIONAL RIGHT TO REFUSE TO
PRODUCE RECORDS OF ITS MEMBERSHIP IN ALABAMA, RELEVANT TO ISSUES IN A
JUDICIAL PROCEEDING TO WHICH IT IS A PARTY, ON THE MERE SPECULATION
THAT THESE MEMBERS MAY BE EXPOSED TO ECONOMIC AND SOCIAL SANCTIONS BY
PRIVATE CITIZENS OF ALABAMA BECAUSE OF THEIR MEMBERSHIP?"  (STATE'S
BRIEF IN OPPOSITION TO PETITION FOR CERTIORARI, P. 2.)  (FN3)  THE
STATE MADE NOT EVEN AN INDICATION THAT OTHER PORTIONS OF THE PRODUCTION
ORDER HAD NOT BEEN COMPLIED WITH AND, THEREFORE, REQUIRED ITS
AFFIRMANCE.  ON THE CONTRARY, THE STATE ON THIS PHASE OF THE CASE
RELIED ENTIRELY ON PETITIONER'S REFUSAL TO FURNISH THE "RECORDS OF ITS
MEMBERSHIP."  THAT WAS ALSO THE BASIS ON WHICH THE ISSUE WAS BRIEFED
AND ARGUED BEFORE US BY BOTH SIDES AFTER CERTIORARI HAD BEEN GRANTED. 
THAT WAS THE VIEW OF THE RECROD WHICH UNDERLAY THIS COURT'S CONCLUSION
THAT PETITIONER HAD "APPARENTLY COMPLIED SATISFACTORILY WITH THE
PRODUCTION ORDER, EXCEPT FOR THE MEMBERSHIP LISTS," 357 U.S., AT 465. 
(FN4)  AND THAT WAS THE PREMISE ON WHICH THE COURT DISPOSED OF THE
CASE.  THE STATE PLAINLY ACCEPTED THIS VIEW OF THE ISSUE PRESENTED BY
THE RECORD AND BY ITS ARGUMENT ON IT, FOR IT DID NOT SEEK A REHEARING
OR SUGGEST A CLARIFICATION OR CORRECTION OF OUR OPINION IN THAT
REGARD. 

IT NOW FOR THE FIRST TIME HERE SAYS THAT IT "HAS NEVER AGREED, AND
DOES NOT NOW AGREE, THAT THE PETITIONER HAS COMPLIED WITH THE TRIAL
COURT'S ORDER TO PRODUCE WITH THE EXCEPTION OF MEMBERSHIP.  THE
RESPONDENT, IN FACT, SPECIFICALLY DENIES THAT THE PETITIONER HAS
PRODUCED OR OFFERED TO PRODUCE IN ALL ASPECTS EXCEPT FOR LISTS OF
MEMBERSHIP."  THIS DENIAL COMES TOO LATE.  THE STATE IS BOUND BY ITS
PREVIOUSLY TAKEN POSITION, NAMELY, THAT DECISION OF THE SOLE QUESTION
REGARDING THE MEMBERSHIP LISTS, IS DISPOSITIVE OF THE WHOLE CASE. 

WE TAKE IT FROM THE RECORD NOW BEFORE US THAT THE SUPREME COURT OF
ALABAMA EVIDENTLY WAS NOT ACQUAINTED WITH THE DETAILED BASIS OF THE
PROCEEDINGS HERE AND THE CONSEQUENT GROUND FOR OUR DEFINED
DISPOSITION.  PETITIONER WAS, AS THE SUPREME COURT OF ALABAMA HELD,
OBLIGED TO PRODUCE THE ITEMS INCLUDED IN THE CIRCUIT COURT'S ORDER.  IT
HAVING CLAIMED HERE ITS SATISFACTORY COMPLIANCE WITH THE ORDER, EXCEPT
AS TO ITS MEMBERSHIP LISTS, AND THE STATE HAVING NOT DENIED THIS CLAIM,
IT WAS TAKEN AS TRUE.  (FN5) 

IN THESE CIRCUMSTANCES THE ALABAMA SUPREME COURT IS FORECLOSED FROM
RE-EXAMINING THE GROUNDS OF OUR DISPOSITION.  "WHATEVER WAS BEFORE THE
COURT, AND IS DISPOSED OF, IS CONSIDERED AS FINALLY SETTLED."  SIBBALD
V. UNITED STATES, 12 PET. 488, 492.  SEE ALSO MARTIN V. HUNTER'S
LESSEE, 1 WHEAT.  304; TYLER V. MAGWIRE, 17 WALL.  253. 

THIS REQUIRES THAT THE JUDGMENT OF THE SUPREME COURT OF ALABAMA BE
REVERSED.  UPON FURTHER PROCEEDINGS IN THE CIRCUIT COURT, IF IT APPEARS
THAT FURTHER PRODUCTION IS NECESSARY, THAT COURT MAY, OF COURSE,
REQUIRE THE PETITIONER TO PRODUCE SUCH FURTHER ITEMS, NOT INCONSISTENT
WITH THIS AND OUR EARLIER OPINION, THAT MAY BE APPROPRIATE, REASONABLE
AND CONSTITUTIONAL UNDER THE CIRCUMSTANCES THEN APPEARING. 

WE ASSUME THAT THE STATE SUPREME COURT, THUS ADVISED, WILL NOT FAIL
TO PROCEED PROMPTLY WITH THE DISPOSITION OF THE MATTERS LEFT OPEN UNDER
OUR MANDATE FOR FURTHER PROCEEDINGS, 357 U.S., AT 466-467, AND,
THEREFORE, DENY PETITIONER'S APPLICATION IN NO. 674, MISC., FOR A WRIT
OF MANDAMUS.  IT IS SO ORDERED. 

FN1  PETITIONER'S MOTION WAS FIRST MADE ON NOVEMBER 5, 1958, AND WAS
RENEWED, ON NOVEMBER 19, 1958, AND ON DECEMBER 1, 1958, BY MAILING TO
THE ATTORNEY GENERAL AND FILING WITH THE ALABAMA SUPREME COURT COPIES
OF THE ORIGINAL. 

FN2  IN ITS PREVIOUS ORDER, ON WHICH THE FORMER PROCEEDING HERE WAS
BASED, THE ALABAMA SUPREME COURT HELD THAT CERTIORARI DID NOT LIE TO
REVIEW THE MERITS OF THE CONTEMPT ADJUDICATION, AND DISMISSED THE
ORIGINAL PETITION FOR CERTIORARI ON THAT GROUND, 265 ALA. 349, 91 SO.
2D 214.  ITS OPINION ON WHICH THE PRESENT PROCEEDINGS ARE BASED
INCLUDES THIS STATEMENT:  "LEST THERE BE NO MISAPPREHENSION ON THE PART
OF THE BENCH AND BAR OF ALABAMA, WE HERE AFFIRM THE WELL RECOGNIZED AND
UNIFORM PRONOUNCEMENTS OF THIS COURT WITH RESPECT TO THE FUNCTIONS AND
LIMITATIONS OF COMMON-LAW CERTIORARI, AND THE DISTINCTIONS BETWEEN THAT
AND OTHER METHODS OF REVIEW.  265 ALA. 349, 91 SO. 2D 214, SUPRA.  AS
WE STATED IN AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES V. DAWKINS, 268 ALA. 13, 104 SO. 2D 827, 834:  'WE CANNOT
HURDLE OR MAKE SHIPWRECK OF WELL-KNOWN RULES OF PROCEDURE IN ORDER TO
ACCOMMODATE A SINGLE CASE.'"  268 ALA. 531, 532, 109 SO. 2D 138-139. 

FN3  QUESTION I IN THE PETITION FOR CERTIORARI WAS AS FOLLOWS:
"WHETHER THE REFUSAL OF PETITIONER TO PRODUCE NAMES AND ADDRESSES OF
ITS ALABAMA MEMBERS WAS PROTECTED BY THE FOURTEENTH AMENDMENT'S
INTERDICTION AGAINST STATE INTERFERENCE WITH FIRST AMENDMENT RIGHTS.?" 

FN4  SEE NOTE 5, INFRA. 

FN5  INDEED HAD THE STATE DENIED THIS CLAIM IT WOULD HAVE RAISED
ADDITIONAL SERIOUS CONSTITUTIONAL ISSUES.  AS WE NOTED IN OUR ORIGINAL
OPINION THE CONTEMPT ADJUDICATION NOT ONLY CARRIED A FINE OF SERIOUS
PROPORTIONS, BUT UNDER ALABAMA LAW IT HAD THE EFFECT OF FORECLOSING
"PETITIONER FROM OBTAINING A HEARING ON THE MERITS OF THE UNDERLYING
OUSTER ACTION, OR FROM TAKING ANY STEPS TO DISSOLVE THE TEMPORARY
RESTRAINING ORDER WHICH HAD BEEN ISSUED EX PARTE, UNTIL IT PURGED
ITSELF OF CONTEMPT."  357 U.S., AT 454.  YET UPON THE FACTS DISCLOSED
BY THE RECORD, THE VALIDITY OF A CONTEMPT DECREE CARRYING THESE
CONSEQUENCES WOULD, APART FROM THE REFUSAL TO PRODUCE THE MEMBERSHIP
LISTS, HAVE DEPENDED UPON NOTHING MORE SUBSTANTIAL THAN THE
REASONABLENESS OF THE DEGREE OF PETITIONER'S TENDERED COMPLIANCE.  FOR
EXAMPLE, ITEM "5" OF THE PRODUCTION ORDER CALLED FOR:  "ALL FILES,
LETTERS, COPIES OF LETTERS, TELEGRAMS AND OTHER CORRESPONDENCE, DATED
OR OCCURRING WITHIN THE LAST TWELVE MONTHS NEXT PRECEDING THE DATE OF
FILING THE PETITION FOR INJUNCTION, PERTAINING TO OR BETWEEN THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., AND
PERSONS, CORPORATIONS, ASSOCIATIONS, GROUPS, CHAPTERS AND PARTNERSHIPS
WITHIN THE STATE OF ALABAMA."  PETITIONER'S TENDER WAS THIS:  "THE
FILES IN THE OFFICES OF RESPONDENT (PETITIONER) ARE FILED UNDER SUBJECT
MATTER HEADINGS.  THEREFORE, TO COMPLY WITH THIS PARAGRAPH WOULD
REQUIRE RESPONDENT TO SEARCH ALL OF ITS FILES IN ORDER TO SECURE ALL
INFORMATION REQUESTED.  RESPONDENT RECEIVES CORRESPONDENCE IN ITS
OFFICES AT THE RATE OF 50,000 LETTERS ALONE PER YEAR AND FILES ARE
MAINTAINED FOR A PERIOD OF TEN YEARS.  RESPONDENT PRODUCES, HOWEVER,
ALL MEMORANDA TO BRANCHES DURING THE TWELVE MONTHS PERIOD NEXT
PRECEDING JUNE 1, 1956, WHICH WOULD INCLUDE ITS BRANCHES IN THE STATE
OF ALABAMA." 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







OHIO, EATON V. PRICE 360 U.S. 246 


NO. 699.  DECIDED JUNE 8, 1959.  - REPORTED BELOW:  168 OHIO ST. 123,
151 N.E.2D 523. 


BY A VOTE OF FOUR TO FOUR, THE COURT NOTED PROBABLE JURISDICTION OF
THE APPEAL IN THIS CASE, WHICH WAS BELIEVED BY THE FOUR MEMBERS VOTING
AGAINST SUCH ACTION TO TURN ON THE SAME QUESTION AS THAT DECIDED BY A
FIVE-TO-FOUR VOTE ON MAY 4, 1959, IN FRANK V. MARYLAND, 359 U.S. 360. 

OHIO EX REL. EATON V. PRICE, CHIEF OF POLICE. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

PROBABLE JURISDICTION IS NOTED. 

MR. JUSTICE BRENNAN, WHO VOTED TO NOTE PROBABLE JURISDICTION, FILED A
SEPARATE MEMORANDUM. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, AND
MR. JUSTICE WHITTAKER, WHO VOTED AGAINST NOTING PROBABLE JURISDICTION,
FILED A SEPARATE MEMORANDUM. 

MR. JUSTICE CLARK, WHO VOTED AGAINST NOTING PROBABLE JURISDICTION,
FILED A SEPARATE MEMORANDUM. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS APPLICATION. 

MR. JUSTICE BRENNAN. 

THE COURT'S PRACTICE, WHEN CONSIDERING A JURISDICTIONAL STATEMENT
WHEREBY A LITIGANT ATTEMPTS TO INVOKE THE COURT'S JURISDICTION ON
APPEAL, IS QUITE SIMILAR TO ITS WELL-KNOWN ONE ON APPLICATIONS FOR
WRITS OF CERTIORARI.  THAT IS, IF FOUR JUSTICES OR MORE ARE OF OPINION
THAT THE QUESTIONS PRESENTED BY THE APPEAL SHOULD BE FULLY BRIEFED AND
ARGUED ORALLY, AN ORDER NOTING PROBABLE JURISDICTION OR POSTPONING
FURTHER CONSIDERATION OF THE JURISDICTIONAL QUESTIONS TO A HEARING ON
THE MERITS IS ENTERED.  EVEN THOUGH THIS ACTION IS TAKEN ON THE VOTES
OF ONLY A MINORITY OF FOUR OF THE JUSTICES, THE COURT THEN APPROACHES
PLENARY CONSIDERATION OF THE CASE ANEW AS A COURT; VOTES PREVIOUSLY
CAST IN CONFERENCE THAT THE JUDGMENT OF THE COURT APPEALED FROM BE
SUMMARILY AFFIRMED, OR THAT THE APPEAL BE DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION, DO NOT CONCLUDE THE JUSTICES CASTING
THEM, AND EVERY MEMBER OF THE COURT BRINGS TO THE ULTIMATE DISPOSITION
OF THE CASE HIS JUDGMENT BASED ON THE FULL BRIEFS AND THE ORAL
ARGUMENTS.  BECAUSE OF THIS, DISAGREEING JUSTICES DO NOT ORDINARILY
MAKE A PUBLIC NOTATION, WHEN AN ORDER SETTING AN APPEAL FOR ARGUMENT IS
ENTERED, THAT THEY WOULD HAVE SUMMARILY AFFIRMED THE JUDGMENT BELOW, OR
HAVE DISMISSED THE APPEAL FROM IT FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION.  RESEARCH HAS NOT DISCLOSED ANY INSTANCES OF SUCH NOTATIONS
UNTIL TODAY.  (FN1) 

THE REASONS FOR SUCH FORBEARANCE ARE OBVIOUS.  VOTES TO AFFIRM
SUMMARILY, AND TO DISMISS FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION,
IT HARDLY NEEDS COMMENT, ARE VOTES ON THE MERITS OF A CASE, AND PUBLIC
EXPRESSION OF VIEWS ON THE MERITS OF A CASE BY A JUSTICE BEFORE
ARGUMENT AND DECISION MAY WELL BE MISUNDERSTOOD; THE USUAL PRACTICE IN
JUDICIAL ADJUDICATION IN THIS COUNTRY, WHERE HEARINGS ARE HELD, IS THAT
JUDGMENT FOLLOW, AND NOT PRECEDE THEM.  PUBLIC RESPECT FOR THE
JUDICIARY MIGHT WELL SUFFER IF ANY BASIS WERE GIVEN FOR AN ASSUMPTION,
HOWEVER WRONG IN FACT, THAT THIS WERE NOT SO.  THUS, THE PRACTICE OF
NOT NOTING DISSENTS FROM SUCH ORDERS HAS BEEN FOLLOWED, REGARDLESS OF
HOW STRONGLY JUSTICES MAY HAVE FELT AS TO THE MERITS OF A CASE OR HOW
CLEARLY THEY HAVE THOUGHT DECISION IN IT CONTROLLED BY PAST PRECEDENT. 
(FN2)  A PRECEDENT WHICH APPEARS TO SOME JUSTICES, UPON THE PRELIMINARY
CONSIDERATION GIVEN A JURISDICTIONAL STATEMENT, TO BE COMPLETELY
CONTROLLING MAY NOT APPEAR TO BE SO TO OTHER JUSTICES.  PLENARY
CONSIDERATION CAN CHANGE VIEWS STRONGLY HELD, AND ON CLOSE, REFLECTIVE
ANALYSIS PRECEDENTS MAY APPEAR INAPPLICABLE TO VARYING FACT
SITUATIONS.  I BELIEVE THAT THIS APPROACH WILL OBTAIN IN THIS CASE
DESPITE THE UNUSUAL NOTATION MADE TODAY BY FOUR OF MY COLLEAGUES. 

FN1  LIKEWISE, DISSENTS FROM ORDERS GRANTING CERTIORARI ARE
ORDINARILY NOT PUBLICLY NOTED, EVEN THOUGH THE GRANT OR DENIAL OF
CERTIORARI, AS WE HAVE OFTEN SAID, EXPRESSES NO INTIMATION AS TO THE
MERITS OF A CASE.  THE SOLE EXCEPTION FOUND APPEARS TO BE YOUNGSTOWN
SHEET & TUBE CO. V. SAWYER, 343 U.S. 937, WHERE THE EXTRAORDINARY POWER
TO GRANT CERTIORARI BEFORE JUDGMENT IN THE COURT OF APPEALS WAS
EXERCISED, AND TWO JUSTICES EXPRESSED THEIR VIEW THAT JUDGMENT IN THAT
COURT SHOULD HAVE BEEN OBTAINED BEFORE THIS COURT REVIEWED THE CASE. 
OF COURSE, IN THESE CIRCUMSTANCES, THE NOTATION COULD NOT POSSIBLY HAVE
IMPLIED OR HAVE BEEN TAKEN TO IMPLY ANY VIEW OF THE CASE ON THE
MERITS. 

FN2  NOTATION OF DISSENT FROM A DENIAL OF CERTIORARI, OR FROM A
SUMMARY DISPOSITION OF AN APPEAL, IS A COMPLETELY DIFFERENT MATTER. 
SUCH NOTATIONS OCCUR WITH SOME FREQUENCY AND I HAVE MADE THEM MYSELF. 
THEY ARE EXPRESSIONS OF A JUSTICE'S VIEW THAT A CASE SHOULD BE HEARD
WHEN THE COURT DECIDES NOT TO HAVE A HEARING.  OBVIOUSLY SUCH NOTATIONS
DO NOT TEND TO FORECLOSE OR EMBARRASS CONSIDERATION OF THE CASE WHEN IT
IS LATER HEARD, SINCE BY DEFINITION IT IS NOT TO BE HEARD. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, AND
MR. JUSTICE WHITTAKER ARE OF THE VIEW THAT THIS CASE IS CONTROLLED BY,
AND SHOULD BE AFFIRMED ON THE AUTHORITY OF, FRANK V. MARYLAND, 359 U.S.
360. 

THE FRANK CASE WAS DECIDED ON MAY 4.  APPLICATION TO REVIEW THIS CASE
CAME BEFORE US WITHIN TWO WEEKS OF THE FRANK DECISION.  SINCE WE DEEM
THE DECISION IN THE MARYLAND CASE TO BE COMPLETELY CONTROLLING UPON THE
OHIO DECISION, WE ARE OF THE OPINION THAT IT WOULD MANIFEST DISRESPECT
BY THE COURT FOR ITS OWN PROCESS TO INDICATE ITS WILLINGNESS TO CREATE
AN OPPORTUNITY TO OVERRULE A CASE DECIDED ONLY A FORTNIGHT AGO AFTER
THOROUGH DISCUSSION AT THE BAR AND IN THE BRIEFS AND AFTER THE
WEIGHTIEST DELIBERATION WITHIN THE COURT. 

MR. JUSTICE CLARK. 

THIS CASE CANNOT BE CONSIDERED IN ISOLATION.  IN HIS JURISDICTIONAL
STATEMENT FILED FEBRUARY 12, 1959, APPELLANT STATED THAT NO. 278, FRANK
V. MARYLAND, "IS SIMILAR TO THE FACTS IN THIS CASE AT BAR AND INVOLVES
THE SAME CONSTITUTIONAL QUESTIONS," THUS RAISING "SUBSTANTIALLY THE
SAME PROBLEMS PRESENTED BY THIS APPEAL."  WE, THEREFORE, HELD THIS CASE
AWAITING THE DECISION IN NO. 278, FRANK V. MARYLAND.  IT WAS DECIDED
MAY 4, 1959, BY A 5-4 VOTE.  359 U.S. 360.  THEREAFTER THIS CASE WAS
AGAIN CONSIDERED AND BROTHER STEWART, WHO WAS WITH THE MAJORITY IN
FRANK RECUSED HIMSELF BECAUSE THE CASE CAME FROM OHIO'S SUPREME COURT,
WHERE HIS FATHER THEN SERVED.  AFTER A STUDY OF THE TWO CASES I AGREED
WITH APPELLANT THAT THIS CASE WAS "SIMILAR TO THE FACTS," INVOLVED THE
SAME CONSTITUTIONAL QUESTIONS AND RAISED "SUBSTANTIALLY THE SAME
PROBLEMS" AS THE FRANK CASE.  IN FACT, AS PRESENTED HERE, THE CASES
APPEARED TO BE ON ALL FOURS, EXCEPT THAT THE PENALTY PROVISION IN
MARYLAND'S ACT IS $20, WHILE THAT OF OHIO'S LAW IS A MAXIMUM OF $200,
OR A JAIL SENTENCE NOT EXCEEDING 30 DAYS.  I THEREFORE VOTED TO
AFFIRM.  MY BROTHERS IN THE MAJORITY IN FRANK VOTED LIKEWISE.  HOWEVER,
THE FOUR DISSENTERS IN FRANK VOTED TO NOTE PROBABLE JURISDICTION AND
BRING THE CASE ON FOR ARGUMENT.  THE RESULT, FOR ALL PRACTICAL
PURPOSES, IS A RECONSIDERATION OF THE CONSTITUTIONAL QUESTION DECIDED
IN FRANK BY A FULL COURT.  THIS FLIES IN THE FACE OF THE REAL PURPOSE,
AS WELL AS THE INTENDED EFFECT, OF OUR RULE 58 WHICH PERMITS REHEARINGS
ONLY "AT THE INSTANCE OF A JUSTICE WHO CONCURRED IN THE JUDGMENT OR
DECISION  ...  ."  IT LIKEWISE IS, IN MY VIEW, VERY POOR JUDICIAL
ADMINISTRATION, ESPECIALLY SINCE FRANK WAS DECIDED LESS THAN FOUR WEEKS
AGO AND ONLY AN EIGHT-MAN COURT CAN SIT TO REVIEW THE QUESTION DECIDED
THERE. 

BELIEVING THAT THE BAR WILL BE CONFUSED BY THIS ACTION TODAY, WHICH
BEYOND DOUBT WILL BE CHARACTERIZED AS A RECONSIDERATION OF THE FRANK
HOLDING, I HAVE NOTED MY ADHERENCE TO FRANK.  OTHERWISE MY SILENCE
WOULD BE CONSTRUED AS ACQUIESCENCE IN A RECONSIDERATION OF THAT CASE. 
WHILE I HAVE FOLLOWED A POLICY OF NOT NOTING MY VOTE IN CONFERENCE,
EXCEPT ON THE MERITS, OUR REPORTS ARE FULL OF SUCH NOTATIONS. 
..END :
















FORD MOTOR CO. V. PARK 360 U.S. 251 


NO. 831.  DECIDED JUNE 8, 1959.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  355 MICH. 103, 94
N.W.2D 407. 


FORD MOTOR CO. V. PARK ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















VITARELLI V. SEATON 359 U.S. 535 


NO. 101.  ARGUED APRIL 1-2, 1959 - DECIDED JUNE 1, 1959 - 102 U.S. APP.
D.C. 316, 253 F.2D 338, REVERSED. 


PETITIONER WAS AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR IN A
POSITION NOT DESIGNATED AS "SENSITIVE."  HE WAS NOT A VETERAN, HAD NO
PROTECTED CIVIL SERVICE STATUS, AND COULD HAVE BEEN DISCHARGED
SUMMARILY WITHOUT CAUSE.  PURPORTING TO PROCEED UNDER THE ACT OF AUGUST
26, 1950, EXECUTIVE ORDER NO. 10450 AND DEPARTMENTAL REGULATIONS
PRESCRIBING THE PROCEDURE TO BE FOLLOWED IN "SECURITY RISK" CASES, THE
SECRETARY SUSPENDED HIM AND SERVED HIM WITH WRITTEN CHARGES THAT HIS
"SYMPATHETIC ASSOCIATION" WITH COMMUNISTS OR COMMUNIST SYMPATHIZERS,
AND OTHER SIMILAR ALLEGED ACTIVITIES, TENDED TO SHOW THAT HIS CONTINUED
EMPLOYMENT MIGHT BE "CONTRARY TO THE BEST INTERESTS OF NATIONAL
SECURITY."  AT A SUBSEQUENT HEARING BEFORE A SECURITY HEARING BOARD, NO
EVIDENCE WAS ADDUCED IN SUPPORT OF THESE CHARGES AND NO WITNESS
TESTIFIED AGAINST PETITIONER; BUT HE AND FOUR WITNESSES WHO TESTIFIED
FOR HIM WERE SUBJECTED TO AN EXTENSIVE CROSS-EXAMINATION WHICH WENT FAR
BEYOND THE ACTIVITIES SPECIFIED IN THE CHARGES.  SUBSEQUENTLY, HE WAS
SENT A NOTICE OF DISMISSAL, EFFECTIVE SEPTEMBER 10, 1954, "IN THE
INTEREST OF NATIONAL SECURITY" AND FOR THE REASONS SET FORTH IN THE
CHARGES.  IN 1956, HE SUED FOR A DECLARATORY JUDGMENT THAT HIS
DISCHARGE WAS ILLEGAL AND AN INJUNCTION DIRECTING HIS REINSTATEMENT. 
WHILE THE CASE WAS PENDING, A COPY OF A "NOTIFICATION OF PERSONNEL
ACTION," DATED SEPTEMBER 21, 1954, AND RECITING THAT IT WAS "A REVISION
OF AND REPLACES THE ORIGINAL BEARING THE SAME DATE," WAS FILED IN THE
COURT AND A COPY WAS DELIVERED TO PETITIONER.  THIS NOTIFICATION WAS
IDENTICAL WITH ONE ISSUED SEPTEMBER 21, 1954, EXCEPT THAT IT OMITTED
ANY REFERENCE TO THE REASON FOR PETITIONER'S DISCHARGE AND TO THE
AUTHORITY UNDER WHICH IT WAS CARRIED OUT.  HELD:  PETITIONER'S
DISMISSAL WAS ILLEGAL AND HE IS ENTITLED TO REINSTATEMENT.  PP. 536
546. 

(A)  HAVING CHOSEN TO PROCEED AGAINST PETITIONER ON SECURITY GROUNDS,
THE SECRETARY WAS BOUND BY THE REGULATIONS WHICH HE HAD PROMULGATED FOR
DEALING WITH SUCH CASES, EVEN THOUGH PETITIONER COULD HAVE BEEN
DISCHARGED SUMMARILY AND WITHOUT CAUSE INDEPENDENTLY OF THOSE
REGULATIONS.  PP. 539-540. 

(B)  THE RECORD SHOWS THAT THE PROCEEDINGS LEADING TO PETITIONER'S
DISMISSAL FROM GOVERNMENT SERVICE ON GROUNDS OF NATIONAL SECURITY
VIOLATED PETITIONER'S PROCEDURAL RIGHTS UNDER THE APPLICABLE
DEPARTMENTAL REGULATIONS.  THEREFORE, HIS DISMISSAL WAS ILLEGAL AND OF
NO EFFECT.  PP. 540-545. 

(C)  DELIVERY TO PETITIONER IN 1956 OF THE REVISED "NOTIFICATION OF
PERSONNEL ACTION" DATED SEPTEMBER 21, 1954, WHICH WAS PLAINLY INTENDED
ONLY AS A GRANT OF RELIEF TO PETITIONER BY EXPURGING THE GROUNDS OF THE
1954 DISCHARGE, CANNOT BE TREATED AS AN EXERCISE OF THE SECRETARY'S
SUMMARY DISMISSAL POWER AS OF THE DATE OF ITS DELIVERY TO PETITIONER. 
PP. 545-546. 

(D)  PETITIONER IS ENTITLED TO REINSTATEMENT, SUBJECT TO ANY LAWFUL
EXERCISE OF THE SECRETARY'S AUTHORITY HEREAFTER TO DISMISS HIM FROM
EMPLOYMENT.  P. 546. 

VITARELLI V. SEATON, SECRETARY OF THE INTERIOR, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE LEGALITY OF PETITIONER'S DISCHARGE AS AN
EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR.  VITARELLI, AN EDUCATOR
HOLDING A DOCTOR'S DEGREE FROM COLUMBIA UNIVERSITY, WAS APPOINTED IN
1952 BY THE DEPARTMENT OF THE INTERIOR AS AN EDUCATION AND TRAINING
SPECIALIST IN THE EDUCATION DEPARTMENT OF THE TRUST TERRITORY OF THE
PACIFIC ISLANDS, AT KOROR IN THE PALAU DISTRICT, A MANDATED AREA FOR
WHICH THIS COUNTRY HAS RESPONSIBILITY. 

BY A LETTER DATED MARCH 30, 1954, RESPONDENT SECRETARY'S PREDECESSOR
IN OFFICE NOTIFIED PETITIONER OF HIS SUSPENSION FROM DUTY WITHOUT PAY,
EFFECTIVE APRIL 2, 1954, ASSIGNING AS GROUND THEREFOR VARIOUS CHARGES. 
ESSENTIALLY, THE CHARGES WERE THAT PETITIONER FROM 1941 TO 1945 HAD
BEEN IN "SYMPATHETIC ASSOCIATION" WITH THREE NAMED PERSONS ALLEGED TO
HAVE BEEN MEMBERS OF OR IN SYMPATHETIC ASSOCIATION WITH THE COMMUNIST
PARTY, AND HAD CONCEALED FROM THE GOVERNMENT THE TRUE EXTENT OF THESE
ASSOCIATIONS AT THE TIME OF A PREVIOUS INQUIRY INTO THEM; THAT HE HAD
REGISTERED AS A SUPPORTER OF THE AMERICAN LABOR PARTY IN NEW YORK CITY
IN 1945, HAD SUBSCRIBED TO THE USSR INFORMATION BULLETIN, AND HAD
PURCHASED COPIES OF THE DAILY WORKER AND NEW MASSES; AND THAT BECAUSE
SUCH ASSOCIATIONS AND ACTIVITIES TENDED TO SHOW THAT PETITIONER WAS
"NOT RELIABLE OR TRUSTWORTHY" HIS CONTINUED EMPLOYMENT MIGHT BE
"CONTRARY TO THE BEST INTERESTS OF NATIONAL SECURITY." 

PETITIONER FILED A WRITTEN ANSWER TO THE STATEMENT OF CHARGES, AND
APPEARED BEFORE A SECURITY HEARING BOARD ON JUNE 22 AND JULY 1, 1954. 
AT THIS HEARING NO EVIDENCE WAS ADDUCED BY THE DEPARTMENT IN SUPPORT OF
THE CHARGES, NOR DID ANY WITNESS TESTIFY AGAINST PETITIONER. 
PETITIONER TESTIFIED AT LENGTH, AND PRESENTED FOUR WITNESSES, AND HE
AND THE WITNESSES WERE EXTENSIVELY CROSS-EXAMINED BY THE SECURITY
OFFICER AND THE MEMBERS OF THE HEARING BOARD.  ON SEPTEMBER 2, 1954, A
NOTICE OF DISMISSAL EFFECTIVE SEPTEMBER 10, 1954, WAS SENT PETITIONER
OVER THE SIGNATURE OF THE SECRETARY, RECITING THAT THE DISMISSAL WAS
"IN THE INTEREST OF NATIONAL SECURITY FOR THE REASONS SPECIFICALLY SET
FORTH IN THE LETTER OF CHARGES DATED MARCH 30, 1954."  THIS WAS
FOLLOWED ON SEPTEMBER 21, 1954, WITH THE FILING OF A "NOTIFICATION OF
PERSONNEL ACTION" SETTING FOR THE SECRETARY'S ACTION.  THE RECORD DOES
NOT SHOW THAT A COPY OF THIS DOCUMENT WAS EVER SENT TO PETITIONER. 

AFTER HAVING FAILED TO OBTAIN REINSTATEMENT BY A DEMAND UPON THE
SECRETARY, PETITIONER FILED SUIT IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA SEEKING A DECLARATION THAT HIS DISMISSAL
HAD BEEN ILLEGAL AND INEFFECTIVE AND AN INJUNCTION REQUIRING HIS
REINSTATEMENT.  ON OCTOBER 10, 1956, WHILE THE CASE WAS PENDING IN THE
DISTRICT COURT, A COPY OF A NEW "NOTIFICATION OF PERSONNEL ACTION,"
DATED SEPTEMBER 21, 1954, AND RECITING THAT IT WAS "A REVISION OF AND
REPLACES THE ORIGINAL BEARING THE SAME DATE," WAS FILED IN THE DISTRICT
COURT, AND ANOTHER COPY OF THIS DOCUMENT WAS DELIVERED TO PETITIONER
SHORTLY THEREAFTER.  THIS NOTIFICATION WAS IDENTICAL WITH THE ONE
ALREADY MENTIONED, EXCEPT THAT IT OMITTED ANY REFERENCE TO THE REASON
FOR PETITIONER'S DISCHARGE AND TO THE AUTHORITY UNDER WHICH IT WAS
CARRIED OUT.  (FN1)  THEREAFTER THE DISTRICT COURT GRANTED SUMMARY
JUDGMENT FOR THE RESPONDENT.  THAT JUDGMENT WAS AFFIRMED BY THE COURT
OF APPEALS, ONE JUDGE DISSENTING.  102 U.S. APP. D.C. 316, 253 F.2D
338.  WE GRANTED CERTIORARI TO CONSIDER THE VALIDITY OF PETITIONER'S
DISCHARGE.  358 U.S. 871. 

THE SECRETARY'S LETTER OF MARCH 30, 1954, AND NOTICE OF DISMISSAL OF
SEPTEMBER 2, 1954, BOTH RELIED UPON EXEC. ORDER NO. 10450, 18 FED. REG.
2489 (1953), THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. SEC. 22
1 ET SEQ., AND DEPARTMENT OF THE INTERIOR ORDER NO. 2738, ALL RELATING
TO DISCHARGES OF GOVERNMENT EMPLOYEES ON SECURITY OR LOYALTY GROUNDS,
AS THE AUTHORITY FOR PETITIONER'S DISMISSAL.  IN COLE V. YOUNG, 351
U.S. 536, THIS COURT HELD THAT THE STATUTE REFERRED TO DID NOT APPLY TO
GOVERNMENT EMPLOYEES IN POSITIONS NOT DESIGNATED AS "SENSITIVE." 
RESPONDENT TAKES THE POSITION THAT SINCE PETITIONER'S POSITION IN
GOVERNMENT SERVICE HAS AT NO TIME BEEN DESIGNATED AS SENSITIVE THE
EFFECT OF COLE, WHICH WAS DECIDED AFTER THE 1954 DISMISSAL OF
PETITIONER, WAS TO RENDER ALSO INAPPLICABLE TO PETITIONER DEPARTMENT OF
THE INTERIOR ORDER NO. 2738, UNDER WHICH THE PROCEEDINGS RELATING TO
PETITIONER'S DISMISSAL WERE HAD.  IT IS URGED THAT IN THIS STATE OF
AFFAIRS PETITIONER, WHO CONCEDEDLY WAS AT NO TIME WITHIN THE PROTECTION
OF THE CIVIL SERVICE ACT, VETERANS' PREFERENCE ACT, OR ANY OTHER
STATUTE RELATING TO EMPLOYMENT RIGHTS OF GOVERNMENT EMPLOYEES, AND WHO,
AS A "SCHEDULE A" EMPLOYEE, COULD HAVE BEEN SUMMARILY DISCHARGED BY THE
SECRETARY AT ANY TIME WITHOUT THE GIVING OF A REASON, UNDER NO
CIRCUMSTANCES COULD BE ENTITLED TO MORE THAN THAT WHICH HE HAS ALREADY
RECEIVED - NAMELY, AN "EXPUNGING" FROM THE RECORD OF HIS 1954 DISCHARGE
OF ANY REFERENCE TO THE AUTHORITY OR REASONS THEREFOR. 

RESPONDENT MISCONCEIVES THE EFFECT OF OUR DECISION IN COLE.  IT IS
TRUE THAT THE ACT OF AUGUST 26, 1950, AND THE EXECUTIVE ORDER DID NOT
ALTER THE POWER OF THE SECRETARY TO DISCHARGE SUMMARILY AN EMPLOYEE IN
PETITIONER'S STATUS, WITHOUT THE GIVING OF ANY REASON.  NOR DID THE
DEPARTMENT'S OWN REGULATIONS PRECLUDE SUCH A COURSE.  SINCE, HOWEVER,
THE SECRETARY GRATUITOUSLY DECIDED TO GIVE A REASON, AND THAT REASON
WAS NATIONAL SECURITY, HE WAS OBLIGATED TO CONFORM TO THE PROCEDURAL
STANDARDS HE HAD FORMULATED IN ORDER NO. 2738 FOR THE DISMISSAL OF
EMPLOYEES ON SECURITY GROUNDS.  SERVICE V. DULLES, 354 U.S. 363.  THAT
ORDER ON ITS FACE APPLIES TO ALL SECURITY DISCHARGES IN THE DEPARTMENT
OF THE INTERIOR, INCLUDING SUCH DISCHARGES OF SCHEDULE A EMPLOYEES. 
COLE V. YOUNG ESTABLISHED THAT THE ACT OF AUGUST 26, 1950, DID NOT
PERMIT THE DISCHARGE OF NONSENSITIVE EMPLOYEES PURSUANT TO PROCEDURES
AUTHORIZED BY THAT ACT IF THOSE PROCEDURES WERE MORE SUMMARY THAN THOSE
TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED BY VIRTUE OF ANY PRE
EXISTING STATUTE OR REGULATION.  THAT DECISION CANNOT, HOWEVER, JUSTIFY
NONCOMPLIANCE BY THE SECRETARY WITH REGULATIONS PROMULGATED BY HIM IN
THE DEPARTMENTAL ORDER, WHICH AS TO PETITIONER AFFORD GREATER
PROCEDURAL PROTECTIONS IN THE CASE OF A DISMISSAL STATED TO BE FOR
SECURITY REASONS THAN IN THE CASE OF DISMISSAL WITHOUT ANY STATEMENT OF
REASONS.  HAVING CHOSEN TO PROCEED AGAINST PETITIONER ON SECURITY
GROUNDS, THE SECRETARY HERE, AS IN SERVICE, WAS BOUND BY THE
REGULATIONS WHICH HE HIMSELF HAD PROMULGATED FOR DEALING WITH SUCH
CASES, EVEN THOUGH WITHOUT SUCH REGULATIONS HE COULD HAVE DISCHARGED
PETITIONER SUMMARILY. 

PETITIONER MAKES VARIOUS CONTENTIONS AS TO THE CONSTITUTIONAL
INVALIDITY OF THE PROCEDURES PROVIDED BY ORDER NO. 2738.  HE FURTHER
URGES THAT EVEN ASSUMING THE VALIDITY OF THE GOVERNING PROCEDURES, HIS
DISMISSAL CANNOT STAND BECAUSE THE NOTICE OF SUSPENSION AND HEARING
GIVEN HIM DID NOT COMPLY WITH THE ORDER.  WE FIND IT UNNECESSARY TO
REACH THE CONSTITUTIONAL ISSUES, FOR WE THINK THAT PETITIONER'S SECOND
POSITION IS WELL TAKEN AND MUST BE SUSTAINED. 

PRELIMINARILY, IT SHOULD BE SAID THAT DEPARTURES FROM DEPARTMENTAL
REGULATIONS IN MATTERS OF THIS KIND INVOLVE MORE THAN MERE
CONSIDERATION OF PROCEDURAL IRREGULARITIES.  FOR IN PROCEEDINGS OF THIS
NATURE, IN WHICH THE ORDINARY RULES OF EVIDENCE DO NOT APPLY, IN WHICH
MATTERS INVOLVING THE DISCLOSURE OF CONFIDENTIAL INFORMATION ARE
WITHHELD, AND WHERE IT MUST BE RECOGNIZED THAT COUNSEL IS UNDER
PRACTICAL CONSTRAINTS IN THE MAKING OF OBJECTIONS AND IN THE TACTICAL
HANDLING OF HIS CASE WHICH WOULD NOT OBTAIN IN A CAUSE BEING TRIED IN A
COURT OF LAW BEFORE TRAINED JUDGES, SCRUPULOUS OBSERVANCE OF
DEPARTMENTAL PROCEDURAL SAFEGUARDS IS CLEARLY OF PARTICULAR
IMPORTANCE.  (FN2)  IN THIS INSTANCE AN EXAMINATION OF THE RECORD, AND
OF THE TRANSCRIPT OF THE HEARING BEFORE THE DEPARTMENTAL SECURITY
BOARD, DISCLOSES THAT PETITIONER'S PROCEDURAL RIGHTS UNDER THE
APPLICABLE REGULATIONS WERE VIOLATED IN AT LEAST THREE MATERIAL
RESPECTS IN THE PROCEEDINGS WHICH TERMINATED IN THE FINAL NOTICE OF HIS
DISMISSAL. 

FIRST, SEC. 15(A) OF ORDER NO. 2738 REQUIRES THAT THE STATEMENT OF
CHARGES SERVED UPON AN EMPLOYEE AT THE TIME OF HIS SUSPENSION ON
SECURITY GROUNDS "SHALL BE AS SPECIFIC AND DETAILED AS SECURITY
CONSIDERATIONS, INCLUDING THE NEED FOR PROTECTION OF CONFIDENTIAL
SOURCES OF INFORMATION, PERMIT ...  AND SHALL BE SUBJECT TO AMENDMENT
WITHIN 30 DAYS OF ISSUANCE."  ALTHOUGH THE STATEMENT OF CHARGES
FURNISHED PETITIONER APPEARS ON ITS FACE TO BE REASONABLY SPECIFIC,
(FN3) THE TRANSCRIPT OF HEARING ESTABLISHES THAT THE STATEMENT, WHICH
WAS NEVER AMENDED, CANNOT CONCEIVABLY BE SAID IN FACT TO BE AS SPECIFIC
AND DETAILED AS "SECURITY CONSIDERATIONS  ...  PERMIT."  FOR PETITIONER
WAS QUESTIONED BY THE SECURITY OFFICER AND BY THE HEARING BOARD IN
GREAT DETAIL CONCERNING HIS ASSOCIATION WITH AND KNOWLEDGE OF VARIOUS
PERSONS AND ORGANIZATIONS NOWHERE MENTIONED IN THE STATEMENT OF
CHARGES, (FN4) AND AT LENGTH CONCERNING HIS ACTIVITIES IN BUCKS COUNTY,
PENNSYLVANIA, AND ELSEWHERE AFTER 1945, ACTIVITIES AS TO WHICH THE
CHARGES ARE ALSO COMPLETELY SILENT.  THESE QUESTIONS WERE PRESUMABLY
ASKED BECAUSE THEY WERE DEEMED RELEVANT TO THE INQUIRY BEFORE THE
BOARD, AND THE VERY FACT THAT THEY WERE ASKED AND THUS SPREAD ON THE
RECORD IS CONCLUSIVE INDICATION THAT "SECURITY CONSIDERATIONS" COULD
NOT HAVE JUSTIFIED THE OMISSION OF ANY STATEMENT CONCERNING THEM IN THE
CHARGES FURNISHED PETITIONER. 

SECOND, SECS. 21(A) AND (E) REQUIRE THAT HEARINGS BEFORE SECURITY
HEARING BOARDS SHALL BE "ORDERLY" AND THAT "REASONABLE RESTRICTIONS
SHALL BE IMPOSED AS TO RELEVANCY, COMPETENCY, AND MATERIALITY OF
MATTERS CONSIDERED."  THE MATERIAL SET FORTH IN THE MARGIN, TAKEN FROM
THE TRANSCRIPT, AND ILLUSTRATIVE RATHER THAN EXHAUSTIVE, SHOWS THAT
THESE INDISPENSABLE INDICIA OF A MEANINGFUL HEARING WERE NOT OBSERVED. 
(FN5)  IT IS NOT AN OVERCHARACTERIZATION TO SAY THAT AS THE HEARING
PROCEEDED IT DEVELOPED INTO A WIDE-RANGING INQUISITION INTO THIS MAN'S
EDUCATIONAL, SOCIAL, AND POLITICAL BELIEFS, ENCOMPASSING EVEN A
QUESTION AS TO WHETHER HE WAS "A RELIGIOUS MAN." 

THIRD, SEC. 21(C)(4) GIVES THE EMPLOYEE THE RIGHT "TO CROSS-EXAMINE
ANY WITNESS OFFERED IN SUPPORT OF THE CHARGES."  IT IS APPARENT FROM AN
OVER-ALL READING OF THE REGULATIONS THAT IT WAS NOT CONTEMPLATED THAT
THIS PROVISION SHOULD REQUIRE THE DEPARTMENT TO CALL WITNESSES TO
TESTIFY IN SUPPORT OF ANY OR ALL OF THE CHARGES, BECAUSE IT WAS
EXPECTED THAT CHARGES MIGHT REST ON INFORMATION GATHERED FROM OR BY
"CONFIDENTIAL INFORMANTS."  WE THINK, HOWEVER, THAT SEC. 21(C)(4) DID
CONTEMPLATE THE CALLING BY THE DEPARTMENT OF ANY INFORMANT NOT PROPERLY
CLASSIFIABLE AS "CONFIDENTIAL," IF INFORMATION FURNISHED BY THAT
INFORMANT WAS TO BE USED BY THE BOARD IN ASSESSING AN EMPLOYEE'S
STATUS.  (FN6)  THE TRANSCRIPT SHOWS THAT THIS PROVISION WAS VIOLATED
ON AT LEAST ONE OCCASION AT PETITIONER'S HEARING, FOR THE SECURITY
OFFICER IDENTIFIED BY NAME A PERSON WHO HAD GIVEN INFORMATION
APPARENTLY CONSIDERED DETRIMENTAL TO PETITIONER, THUS NEGATING ANY
POSSIBLE INFERENCE THAT THAT PERSON WAS CONSIDERED A "CONFIDENTIAL
INFORMANT" WHOSE IDENTITY IT WAS NECESSARY TO KEEP SECRET, AND
QUESTIONED PETITIONER AT SOME LENGTH CONCERNING THE INFORMATION
SUPPLIED FROM THIS SOURCE WITHOUT CALLING THE INFORMANT AND AFFORDING
PETITIONER THE RIGHT TO CROSS-EXAMINE.  (FN7) 

BECAUSE THE PROCEEDINGS ATTENDANT UPON PETITIONER'S DISMISSAL FROM
GOVERNMENT SERVICE ON GROUNDS OF NATIONAL SECURITY FELL SUBSTANTIALLY
SHORT OF THE REQUIREMENTS OF THE APPLICABLE DEPARTMENTAL REGULATIONS,
WE HOLD THAT SUCH DISMISSAL WAS ILLEGAL AND OF NO EFFECT. 

RESPONDENT URGES THAT EVEN IF THE DISMISSAL OF SEPTEMBER 10, 1954,
WAS INVALID, PETITIONER IS NOT ENTITLED TO REINSTATEMENT BY REASON OF
THE FACT THAT HE WAS AT ALL EVENTS VALIDLY DISMISSED IN OCTOBER 1956,
WHEN A COPY OF THE SECOND "NOTIFICATION OF PERSONNEL ACTION," OMITTING
ALL REFERENCE TO ANY STATUTE, ORDER, OR REGULATION RELATING TO SECURITY
DISCHARGES, WAS DELIVERED TO HIM.  GRANTING THAT THE SECRETARY COULD AT
ANY TIME AFTER SEPTEMBER 10, 1954, HAVE VALIDLY DISMISSED PETITIONER
WITHOUT ANY STATEMENT OF REASONS, AND INDEPENDENTLY OF THE PROCEEDINGS
TAKEN AGAINST HIM UNDER ORDER NO. 2738, WE CANNOT VIEW THE DELIVERY OF
THE NEW NOTIFICATION TO PETITIONER AS AN EXERCISE OF THAT SUMMARY
DISMISSAL POWER.  RATHER, THE FACT THAT IT WAS DATED "9-21-54,"
CONTAINED A TERMINATION OF EMPLOYMENT DATE OF "9-10-54," WAS DESIGNATED
AS "A REVISION" OF THE 1954 NOTIFICATION, AND WAS EVIDENTLY FILED IN
THE DISTRICT COURT BEFORE ITS DELIVERY TO PETITIONER INDICATES THAT ITS
SOLE PURPOSE WAS AN ATTEMPT TO MOOT PETITIONER'S SUIT IN THE DISTRICT
COURT BY AN "EXPUNGING" OF THE GROUNDS FOR THE DISMISSAL WHICH BROUGHT
ORDER NO. 2738 INTO PLAY.  (FN8)  IN THESE CIRCUMSTANCES, WE WOULD NOT
BE JUSTIFIED IN NOW TREATING THE 1956 ACTION, PLAINLY INTENDED BY THE
SECRETARY AS A GRANT OF RELIEF TO PETITIONER IN CONNECTION WITH THE
FORM OF THE 1954 DISCHARGE, AS AN EXERCISE OF THE SECRETARY'S SUMMARY
REMOVAL POWER AS OF THE DATE OF ITS DELIVERY TO PETITIONER.  (FN9) 
IT FOLLOWS FROM WHAT WE HAVE SAID THAT PETITIONER IS ENTITLED TO THE
REINSTATEMENT WHICH HE SEEKS, SUBJECT, OF COURSE TO ANY LAWFUL EXERCISE
OF THE SECRETARY'S AUTHORITY HEREAFTER TO DISMISS HIM FROM EMPLOYMENT
IN THE DEPARTMENT OF THE INTERIOR.  REVERSED. 

FN1  AN AFFIDAVIT OF THE CUSTODIAN OF RECORDS OF THE CIVIL SERVICE
COMMISSION, FILED IN THE DISTRICT COURT TOGETHER WITH THIS REVISED
NOTIFICATION, STATES "THAT ALL RECORDS OF THE SAID COMMISSION HAVE BEEN
EXPUNGED OF ALL ADVERSE FINDINGS MADE WITH RESPECT TO MR. WILLIAM
VINCENT VITARELLI UNDER EXECUTIVE ORDER 10450." 

FN2  AS ALREADY NOTED, WE DO NOT REACH THE QUESTION OF THE
CONSTITUTIONAL PERMISSIBILITY OF AN ADMINISTRATIVE ADJUDICATION BASED
ON "CONFIDENTIAL INFORMATION" NOT DISCLOSED TO THE EMPLOYEE. 

FN3  THE SUBSTANCE OF THE CHARGES HAS BEEN STATED ON PP. 536-537,
SUPRA. 

FN4  THE STATEMENT OF THE CHARGES REFERRED TO PETITIONER'S ALLEGED
ASSOCIATIONS WITH ONLY THREE NAMED PERSONS, "F - , W - , AND W - ." 
DURING THE COURSE OF THE HEARING THE SECURITY OFFICER, HOWEVER, ASKED
"HOW WELL DID YOU KNOW L - B - ?  ...  DID YOU EVER MEET H - B - C - ?
...  DID YOU EVER REMEMBER MEETING A J - L - ?"  FURTHER, PETITIONER
WAS QUESTIONED AS TO HIS KNOWLEDGE OF AND RELATIONSHIPS WITH A WIDE
VARIETY OF ORGANIZATIONS NOT MENTIONED IN THE STATEMENT OF CHARGES. 
THUS HE WAS ASKED:  "DO YOU KNOW WHAT BLACK MOUNTAIN TRANSCENDENTALISM
IS?  ...  DO YOU RECALL AN ORGANIZATION BY THE NAME OF NATIONAL COUNCIL
FOR SOVIET-AMERICAN FRIENDSHIP?  ...  HOW ABOUT THE SOUTHERN CONFERENCE
FOR HUMAN WELFARE?  ...  WHAT IS THE ORGANIZATION CALLED THE JOINT
ANTIFASCIST REFUGEE COMMITTEE?  ...  HAVE YOU EVER HAD ANY CONTACT WITH
THE NEGRO YOUTH CONGRESS?  ...  HOW ABOUT ABRAHAM LINCOLN BRIGADE?  ...
HAVE YOU EVER HEARD OF A MAGAZINE CALLED 'COOPERATIVE UNION'?  ...  I
WAS WONDERING WHETHER YOU HAD EVER HEARD OF CONSUMERS UNION?" 

FN5  "MR. ARMSTRONG (THE DEPARTMENTAL SECURITY OFFICER, INQUIRING
ABOUT PETITIONER'S ACTIVITIES AS A TEACHER IN A GEORGIA COLLECT):  WERE
THESE ACTIVITIES DESIGNED TO BE PUT INTO EFFECT BY BOTH THE WHITE AND
THE COLORED RACES?  ...  WHAT WERE YOUR FEELINGS AT THAT TIME
CONCERNING RACE EQUALITY?  ...  HOW ABOUT CIVIL RIGHTS?  DID THAT ENTER
INTO A DISCUSSION IN YOUR SEMINAR GROUPS?" 

"MR. ARMSTRONG:  DO I INTERPRET YOUR STATEMENT CORRECTLY THAT MAYBE
NEGROES AND JEWS ARE DENIED SOME OF THEIR CONSTITUTIONAL RIGHTS AT
PRESENT? 

"MR. VITARELLI:  YES. 

"MR. ARMSTRONG:  IN WHAT WAY? 

"MR. VITARELLI:  I SAW IT IN THE SOUTH WHERE CERTAIN JOBS WERE OPEN
TO WHITE PEOPLE AND NOT OPEN TO NEGROES BECAUSE THEY WERE NEGROES  ...
.  IN OUR OWN UNIVERSITY, THERE WAS A QUOTA AT COLUMBIA COLLEGE FOR THE
MEDICAL STUDENTS.  BECAUSE THEY WERE JEWISH, THEY WOULD PERMIT ONLY SO
MANY.  I THOUGHT THAT WAS WRONG. 

"CHAIRMAN TOWNSON:  DOCTOR, ISN'T IT ALSO TRUE THAT COLUMBIA COLLEGE
HAD QUOTAS BY STATES AND OTHER CLASSIFICATIONS AS WELL? 

"MR. VITARELLI:  I DON'T REMEMBER THAT.  IT MAY BE TRUE. 

"MR. ARMSTRONG:  IN OTHER WORDS, WASN'T THERE A QUOTA ON GENTILES AS
WELL AS JEWS? 

"MR. VITARELLI:  ...  I HAD REMEMBERED THAT SOME JEWS SEEMED TO FEEL,
AND I FELT, TOO, AT THE TIME, THAT THEY WERE BEING PERSECUTED
SOMEWHAT. 

"CHAIRMAN TOWNSON:  DID YOU EVER TAKE THE TROUBLE TO INVESTIGATE
WHETHER OR NOT THEY WERE OR DID YOU JUST ACCEPT THEIR WORD? 

"MR. VITARELLI:  NO, I DIDN'T INVESTIGATE IT. 

"CHAIRMAN TOWNSON:  YOU ACCEPTED THEIR WORD FOR IT. 

"MR. VITARELLI:  I ACCEPTED THE GENERAL OPINION OF THE GROUP OF
PROFESSORS WITH WHOM I ASSOCIATED AND WAS TAUGHT  ...  . 

"CHAIRMAN TOWNSON:  I AM SIMPLY ASKING YOU TO VERIFY THE VAGUE
IMPRESSION I HAVE THAT COLUMBIA COLLEGE PUTS A SEVERE QUOTA ON
RESIDENTS OF NEW YORK CITY, WHATEVER THEIR RACE, CREED OR COLOR MAY
BE. 

"MR. VITARELLI:  I THINK THAT IS TRUE  ...  . 

"CHAIRMAN TOWNSON:  OTHERWISE THERE WOULD BE NO STUDENTS AT COLUMBIA
COLLEGE EXCEPT RESIDENTS OF NEW YORK CITY. 

"MR. VITARELLI:  THERE MAY BE A FEW OTHERS, BUT MOSTLY NEW YORK
CITY. 

"CHAIRMAN TOWNSON:  ISN'T IT TRUE THAT THE QUOTA SYSTEM IS DESIGNED
BY THE COLLEGE IN ORDER TO MAKE IT AVAILABLE TO PERSONS OTHER THAN LIVE
IN NEW YORK CITY? 

"MR. VITARELLI:  I BELIEVE THAT IS THE REASON. 

"CHAIRMAN TOWNSON:  AND ANY EXCLUSION OF A RESIDENT OF NEW YORK CITY
WOULD BE FOR THAT REASON, RATHER THAN THE RACE, CREED OR COLOR? 

"MR. VITARELLI:  I THINK THAT IS THE WAY THE POLICY IS STATED. 

"CHAIRMAN TOWNSON:  IS IT NOT A FACT? 

"MR. VITARELLI:  I DON'T THINK SO  ...  . 

"CHAIRMAN TOWNSON:  EXCUSE ME. MR. ARMSTRONG. 

"MR. ARMSTRONG:  I WENT TO COLUMBIA LAW SCHOOL FOR TWO YEARS AND
CERTAINLY THERE WAS NOT ANY QUOTA SYSTEM THERE AT THAT TIME, AND THAT
IS A LONG TIME AGO.  ALL RIGHT, WE ARE GETTING AFIELD." 

PETITIONER WAS ALSO ASKED THE FOLLOWING QUESTIONS BY THE SECURITY
OFFICER DURING THE COURSE OF THE HEARING: 

"MR. ARMSTRONG:  I THINK YOU INDICATED IN AN ANSWER OR A REPLY TO AN
INTERROGATORY THAT YOU AT TIMES VOTED FOR AND SPONSORED THE PRINCIPLES
OF FRANKLIN DELANO ROOSEVELT, NORMAN A. THOMAS, AND HENRY WALLACE?  ...
HOW MANY TIMES DID YOU VOTE FOR  ...  THOMAS IF YOU CARE TO SAY?  ...
HOW ABOUT HENRY WALLACE?  ...  HOW ABOUT NORMAN THOMAS?  DID HIS
PLATFORM COINCIDE MORE NEARLY WITH YOUR IDEAS OF DEMOCRACY?  ...  AT
ONE TIME, OR TWO, YOU WERE A STRONG ADVOCATE OF THE UNITED NATIONS. 
ARE YOU STILL?  ...  THE FILE INDICATES, TOO, THAT YOU WERE QUITE
HEPPED UP OVER THE ONE WORLD IDEA AT ONE TIME; IS THAT RIGHT?" 

WITNESSES PRESENTED BY PETITIONER WERE ASKED BY THE SECURITY OFFICER
AND BOARD MEMBERS SUCH QUESTIONS AS: 

"THE DOCTOR INDICATED THAT HE WAS ACQUAINTED WITH AND TALKED TO
NORMAN THOMAS ON OCCASIONS.  DID YOU KNOW ABOUT THAT?  ...  HOW ABOUT
DR. VITARELLI?  IS HE SCHOLARLY?  ...  A GOOD ADMINISTRATOR?  ...  WAS
HE CARELESS WITH HIS LANGUAGE AROUND THE STUDENTS OR CAREFUL?  ...  DID
YOU CONSIDER DR. VITARELLI AS A RELIGIOUS MAN?  ...  WAS HE AN
EXTREMIST ON EQUALITY OF RACES?  ...  IN CONNECTION WITH THE ACTIVITIES
THAT DR. VITARELLI WORKED ON THAT YOU KNOW ABOUT, EITHER IN THE FORM OF
PROJECTS OR IN CONNECTION WITH THE EDUCATIONAL ACTIVITIES THAT YOU HAVE
MENTIONED, DID THEY EXTEND TO THE NEGRO POPULATION OF THE COUNTRY?  IN
OTHER WORDS, WERE THEY CONTACTS WITH NEGRO GROUPS, WITH NEGRO
INSTRUCTORS, WITH NEGRO STUDENTS, AND SO ON?" 

IT IS NOT APPARENT HOW ANY OF THE ABOVE MATTERS COULD BE MATERIAL TO
A CONSIDERATION OF THE QUESTION WHETHER PETITIONER'S RETENTION IN
GOVERNMENT SERVICE WOULD BE CONSISTENT WITH NATIONAL SECURITY. 

FN6  THIS READING OF THE PROVISION IS SUPPORTED BY SEC. 21(E) OF THE
ORDER, WHICH PROVIDES IN PART THAT "IF THE EMPLOYEE IS OR MAY BE
HANDICAPPED BY THE NONDISCLOSURE TO HIM OF CONFIDENTIAL INFORMATION OR
BY LACK OF OPPORTUNITY TO CROSS-EXAMINE CONFIDENTIAL INFORMANTS, THE
HEARING BOARD SHALL TAKE THAT FACT INTO CONSIDERATION," THUS IMPLYING
THAT THE EMPLOYEE IS TO HAVE THE RIGHT TO CROSS-EXAMINE NONCONFIDENTIAL
INFORMANTS WHO PROVIDE MATERIAL TAKEN INTO CONSIDERATION BY THE BOARD. 

FN7  THE INFORMATION WAS TO THE EFFECT THAT PETITIONER HAD CRITICIZED
AS "BOURGEOIS" THE PURCHASE OF A HOUSE BY A WOMAN ASSOCIATE IN
GEORGIA.  PETITIONER FLATLY DENIED THAT HE HAD MADE THE REMARK
ATTRIBUTED TO HIM, AND SAID THAT HE COULD NEVER HAVE MADE SUCH A
STATEMENT EXCEPT IN A SPIRIT OF LEVITY. 

FN8  THE SECRETARY SUCCESSFULLY TOOK THE POSITION IN THE COURTS BELOW
THAT THE ONLY POSSIBLE DEFECT IN THE 1954 DISCHARGE WAS THE
ARTICULATION OF THE "NATIONAL SECURITY" GROUNDS THEREFOR, AND THAT
SINCE THAT DEFECT DID NOT VOID THE DISMISSAL AS SUCH, AN "EXPUNGING" OF
THESE GROUNDS GAVE PETITIONER THE MAXIMUM RELIEF TO WHICH HE COULD
POSSIBLY BE ENTITLED. 

FN9  RESPONDENT'S BRIEF IN THIS COURT REFERS TO THE 1956 NOTICE AS
PART OF "CORRECTIVE ADMINISTRATIVE ACTION WHICH HAS BEEN TAKEN," AND AS
"RELIEF VOLUNTARILY ACCORDED PETITIONER."  THE PREMISE UPON WHICH THE
DISSENTING OPINION ESSENTIALLY RESTS - THAT THE 1956 ACTION WAS AN
ATTEMPT "TO DISCHARGE VITARELLI RETROACTIVELY" - THUS IS CONTRARY TO
THE SECRETARY'S OWN POSITION AS TO THE REASON FOR THAT ACTION. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK, MR. JUSTICE
WHITTAKER AND MR. JUSTICE STEWART JOIN, CONCURRING IN PART AND
DISSENTING IN PART. 

AN EXECUTIVE AGENCY MUST BE RIGOROUSLY HELD TO THE STANDARDS BY WHICH
IT PROFESSES ITS ACTION TO BE JUDGED.  SEE SECURITIES & EXCHANGE COMM'N
V. CHENERY CORP., 318 U.S. 80, 87-88.  ACCORDINGLY, IF DISMISSAL FROM
EMPLOYMENT IS BASED ON A DEFINED PROCEDURE, EVEN THOUGH GENEROUS BEYOND
THE REQUIREMENTS THAT BIND SUCH AGENCY, THAT PROCEDURE MUST BE
SCRUPULOUSLY OBSERVED.  SEE SERVICE V. DULLES, 354 U.S. 363.  THIS
JUDICIALLY EVOLVED RULE OF ADMINISTRATIVE LAW IS NOW FIRMLY ESTABLISHED
AND, IF I MAY ADD, RIGHTLY SO.  HE THAT TAKES THE PROCEDURAL SWORD
SHALL PERISH WITH THAT SWORD.  THEREFORE, I UNRESERVEDLY JOIN IN THE
COURT'S MAIN CONCLUSION, THAT THE ATTEMPTED DISMISSAL OF VITARELLI IN
SEPTEMBER 1954 WAS ABORTIVE AND OF NO VALIDITY BECAUSE THE PROCEDURE
UNDER DEPARTMENT OF THE INTERIOR ORDER NO. 2738 WAS INVOKED BUT NOT
OBSERVED. 

BUT WHEN AN EXECUTIVE AGENCY DRAWS ON THE FREEDOM THAT THE LAW VESTS
IN IT, THE JUDICIARY CANNOT DENY OR CURTAIL SUCH FREEDOM.  THE
SECRETARY OF THE INTERIOR CONCEDEDLY HAD UNTRAMMELLED RIGHT TO DISMISS
VITARELLI OUT OF HAND, SINCE HE HAD NO PROTECTED EMPLOYMENT RIGHTS.  HE
COULD DO SO AS FREELY AS A PRIVATE EMPLOYER WHO IS NOT BOUND BY
PROCEDURAL RESTRICTIONS OF A COLLECTIVE BARGAINING CONTRACT.  THE
SECRETARY WAS UNDER NO LAW-IMPOSED OR SELF-IMPOSED RESTRICTION IN
DISCHARGING AN EMPLOYEE IN VITARELLI'S POSITION WITHOUT STATEMENT OF
REASONS AND WITHOUT A HEARING.  AND SO THE QUESTION IS, DID THE
SECRETARY TAKE ACTION, AFTER THE ABORTIVE DISCHARGE IN 1954, DISMISSING
VITARELLI? 

IN OCTOBER 1956 THERE WAS SERVED UPON VITARELLI A COPY OF A NEW
NOTICE OF DISMISSAL WHICH HAD BEEN INSERTED IN THE DEPARTMENT'S
PERSONNEL RECORDS IN PLACE OF THE FIRST NOTICE.  ANOTHER COPY WAS FILED
WITH THE DISTRICT COURT IN THIS PROCEEDING.  THIS SECOND NOTICE
CONTAINED NO MENTION OF GROUNDS OF DISCHARGE.  IF, INSTEAD OF SENDING
THIS SECOND NOTICE TO VITARELLI, THE SECRETARY HAD TELEPHONED VITARELLI
TO CONVEY THE CONTENTS OF THE SECOND NOTICE, HE WOULD HAVE SAID:  "I
NOTE THAT YOU ARE CONTESTING THE VALIDITY OF THE DISMISSAL.  I WANT TO
MAKE THIS VERY CLEAR TO YOU.  IF I DID NOT SUCCEED IN DISMISSING YOU
BEFORE, I NOW DISMISS YOU, AND I DISMISS YOU RETROACTIVELY, EFFECTIVE
SEPTEMBER 1954." 

THE COURT DISALLOWS THIS SIGNIFICANCE TO THE SECOND NOTICE OF
DISCHARGE BECAUSE IT FINDS CONTROLLING MEANING IN THE SUGGESTION OF THE
GOVERNMENT THAT THE EXPUNGING FROM THE RECORD OF ANY ADVERSE COMMENT,
AND THE SECOND NOTICE OF DISCHARGE, SIGNIFIED A REASSERTION OF THE
EFFECTIVENESS OF THE FIRST ATTEMPT AT DISMISSAL.  AND SO, THE COURT
CONCLUDES, NO INTENTION OF SEVERANCE FROM SERVICE IN 1956 COULD LEGALLY
BE FOUND SINCE THE SECRETARY EXPRESSED NO DOUBT THAT THE FIRST
DISMISSAL HAD BEEN EFFECTIVE.  BUT THIS DOCUMENT OF 1956 WAS NOT A MERE
PIECE OF PAPER IN A DIALECTIC.  THE PAPER WAS A RECORD OF A PROCESS, A
MANIFISTATION OF PURPOSE AND ACTION.  THE INTENDMENT OF THE SECOND
NOTICE, TO BE SURE, WAS TO DISCHARGE VITARELLI RETROACTIVELY, RESTING
THIS ATTEMPTED DISMISSAL ON VALID AUTHORITY - THE SUMMARY POWER TO
DISMISS WITHOUT REASON.  THOUGH THE SECOND NOTICE COULD NOT PRE-DATE
THE SUMMARY DISCHARGE BECAUSE THE SECRETARY RESTED HIS 1954 DISCHARGE
ON AN UNSUSTAINABLE GROUND, AND VITARELLI COULD NOT BE DEPRIVED OF
RIGHTS ACCRUED DURING TWO YEARS OF UNLAWFUL DISCHARGE, THE PRIOR
WRONGFUL ACTION DID NOT DEPRIVE THE SECRETARY OF THE POWER IN HIM TO
FIRE VITARELLI PROSPECTIVELY.  AND IF THE INTENT OF THE SECRETARY BE
MANIFESTED IN FACT BY WHAT HE DID, HOWEVER THAT INTENT BE EXPRESSED -
HERE, THE INTENT TO BE RID OF VITARELLI - THE COURT SHOULD NOT
FRUSTRATE THE SECRETARY'S RIGHTFUL EXERCISE OF THIS POWER AS OF OCTOBER
1956.  THE FACT THAT HE WISHED TO ACCOMPLISH MORE DOES NOT MEAN HE
ACCOMPLISHED NOTHING. 

TO CONSTRUE THE SECOND NOTICE TO MEAN ADMINISTRATIVELY NOTHING IS TO
ATTRIBUTE TO THE SECRETARY THE PURPOSE OF A MERE DIARIST, THE CORRECTOR
OF ENTRIES IN THE DEPARTMENT'S ARCHIVES.  THIS WHOLLY DISREGARDS THE
ACTUALITIES IN THE CONDUCT OF A DEPARTMENT CONCERNED WITH TERMINATING
THE SERVICES OF AN UNDESIRED EMPLOYEE AS COMPLETELY AND BY WHATEVER
MEANS THAT MAY LEGALLY BE ACCOMPLISHED.  IF AN EMPLOYER SUMMONS BEFORE
HIM AN EMPLOYEE OVER WHOM HE HAS UNFETTERED POWER OF DISMISSAL AND SAYS
TO HIM:  "YOU ARE NO LONGER EMPLOYED HERE BECAUSE I FIRED YOU LAST
WEEK," CAN ONE REASONABLY ESCAPE THE CONCLUSION THAT THOUGH THE
EMPLOYER WAS IN ERROR AND HAD NOT EFFECTIVELY CARRIED OUT HIS PURPOSE
TO FIRE THE EMPLOYEE LAST WEEK, THE EMPLOYER'S STATEMENT CLEARLY
MANIFESTS A PRESENT BELIEF THAT THE EMPLOYEE IS DISMISSED AND AN
INTENTION THAT HE BE FOREVERAFTER DISMISSED?  CERTAINLY THE EMPLOYEE
WOULD HAVE NO DOUBT HIS EMPLOYMENT WAS NOT AT AN END.  OF COURSE IF
SOME SPECIAL FORMAL DOCUMENT WERE REQUIRED TO BRING ABOUT A SEVERANCE
OF A RELATIONSHIP, CF.  FELTER V. SOUTHERN PACIFIC CO., 359 U.S. 326,
BECAUSE OF NON-COMPLIANCE WITH THE FORMALITY THE SEVERANCE WOULD NOT
COME INTO BEING.  BUT NO SUCH FORMALITY WAS REQUISITE TO VITARELLI'S
DISMISSAL. 

THIS IS THE COMMON SENSE OF IT:  IN 1956 THE SECRETARY SAID TO
VITARELLI:  "THIS DOCUMENT TELLS YOU WITHOUT ANY IFS, ANDS, OR BUTS,
YOU HAVE BEEN FIRED RIGHT ALONG AND OF COURSE THAT MEANS YOU ARE NOT
PRESENTLY EMPLOYED BY THIS DEPARTMENT."  SINCE HE HAD NOT BEEN FIRED
SUCCESSFULLY IN 1954, THE COURT CONCLUDES HE MUST STILL BE EMPLOYED.  I
CANNOT JOIN IN AN UNREAL INTERPRETATION WHICH ATTRIBUTES TO
GOVERNMENTAL ACTION THE EMPTY MEANING OF CONFETTI THROWING. 
..END :




















NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. WILLIAMS
359 U.S. 550 


NO. 783.  DECIDED JUNE 1, 1959. 


SINCE THE STATE REPRESENTS THAT NO FINE AGAINST PETITIONER HAS BEEN
FINALLY DETERMINED AND ASSESSED, CERTIORARI TO REVIEW THE CONTEMPT
JUDGMENT AGAINST PETITIONER IS DENIED, LEAVING PETITIONER FREE TO TAKE
FURTHER PROCEEDINGS HERE WHEN THE JUDGMENT BELOW BECOMES FINAL OR THE
JURISDICTION OF THIS COURT MAY OTHERWISE BE APPROPRIATELY INVOKED. 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE ET AL. V.
WILLIAMS, REVENUE COMMISSIONER. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE MOTION TO SUBSTITUTE DIXON OXFORD IN THE PLACE OF T.V. WILLIAMS
AS THE PARTY RESPONDENT IS GRANTED.  THE STATE REPRESENTS TO US THAT NO
FINE AGAINST PETITIONER HAS BEEN FINALLY DETERMINED AND ASSESSED. 
ACCORDINGLY, THE PETITION FOR A WRIT OF CERTIORARI IS DENIED, LEAVING
PETITIONER FREE TO TAKE FURTHER PROCEEDINGS HERE WHEN THE JUDGMENT
BELOW BECOMES FINAL OR THE JURISDICTION OF THIS COURT MAY OTHERWISE BE
APPROPRIATELY INVOKED. 

MR. JUSTICE DOUGLAS. 

WITH SOME DOUBTS I BOW TO THE CONCLUSION THAT THIS JUDGMENT IS NOT
FINAL WITHIN THE MEANING OF THE JURISDICTIONAL STATUTE, 28 U.S.C. SEC.
1257.  IT ORDERED THE PETITIONER TO "PRODUCE ALL ITS BOOKS, RECORDS AND
OTHER DATA BEARING ON SAID CORPORATION'S INCOME, DISBURSEMENTS AND
EXPENSES PREPARED OR USED BY SAID CORPORATION IN THE CONDUCT OF ITS
BUSINESS DURING SAID TAXABLE YEARS WHEREVER SAID BUSINESS WAS
TRANSACTED, WHETHER WITHIN OR WITHOUT THIS STATE (EXCEPT SUCH AS MAY BE
OTHERWISE THERETOFORE PRODUCED HEREUNDER)  ...  WITHIN THIRTY-FIVE DAYS
...  AND THAT SAID CORPORATION FORTHWITH PAY INTO THE REGISTRY OF THE
CLERK OF THIS COURT A FINE OF TWENTY-FIVE THOUSAND DOLLARS, TO BE
HEREAFTER ASSESSED AND APPORTIONED REMEDIALLY AND PUNITIVELY, AS SHALL
APPEAR JUST AND APPROPRIATE TO THE COURT, THE COURT RESERVING
JURISDICTION, AFTER THE PRODUCTION OF THE BOOKS, RECORDS AND DATA
HEREBY ORDERED, TO REDUCE THE AMOUNT OF SAID FINE IF SUCH SHOULD BE
JUST UNDER THE CIRCUMSTANCES THEN EXISTING." 

BY THE TERMS OF THIS JUDGMENT, THE GEORGIA COURT RESERVES THE POWER
TO REDUCE THE AMOUNT OF THE FINE.  ONE QUESTION TENDERED BY THE
PETITIONER WOULD TURN ON THE AMOUNT OF THE FINE.  IT IS THE ISSUE OF
"CRUEL AND UNUSUAL PUNISHMENTS" WHICH IS OUTLAWED BY THE EIGHTH
AMENDMENT THAT IS IN TURN MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH, FRANCIS V. RESWEBER, 329 U.S. 459, 463.  THAT IS A
SUBSIDIARY QUESTION AND ONE THAT THE STATE CONTENDS IS NOT PROPERLY
HERE BECAUSE, IT IS SAID, NO SUCH ASSIGNMENT OF ERROR WAS INCLUDED IN
THE BILL OF EXCEPTIONS. 

THE CENTRAL ISSUE IN THE CASE HAS NOTHING TO DO WITH THE AMOUNT OF
THE FINE.  IT SEEMS THAT THE ORDER TO PRODUCE THE RECORDS AND THE
CITATION FOR CONTEMPT FOLLOWED EACH OTHER IN A MATTER OF A FEW HOURS. 
THE BASIC QUESTION IS WHETHER HOLDING PETITIONER IN CONTEMPT AND
IMPOSING ANY FINE COMPORTED WITH THAT DUE PROCESS REQUIRED OF EVERY
GOVERNMENT UNDER OUR BILL OF RIGHTS.  WERE THAT QUESTION HERE ALONE, I
WOULD THINK THE JUDGMENT WAS FINAL.  BUT SINCE THE ISSUE OF "CRUEL AND
UNUSUAL PUNISHMENT" IS ALSO TENDERED AND SINCE A REDUCTION OF THE FINE
MAY ELIMINATE IT FROM THE CASE, I ACQUIESCE IN THE DENIAL OF CERTIORARI
AT THIS STAGE OF THE PROCEEDINGS. 
..END :









SIEGEL V. ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 359 U.S. 552 


NO. 773.  DECIDED JUNE 1, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  5 N.Y.2D 707, 708. 


SIEGEL ET AL. V. ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















OHIO, KLAPP V. DAYTON POWER & LIGHT CO. 359 U.S. 552 


NO. 851.  DECIDED JUNE 1, 1959 - CERTIORARI GRANTED AND JUDGMENT
REVERSED - REPORTED BELOW: 263 F.2D 909. 


OHIO EX REL. KLAPP, PROSECUTING ATTORNEY, V. DAYTON POWER & LIGHT CO. ET
AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT IS REVERSED. 
STRAWBRIDGE V. CURTISS, 3 CRANCH 267; REMOVAL CASES, 100 U.S. 457;
INDIANAPOLIS V. CHASE NATIONAL BANK, 314 U.S. 63. 
..END :













BEACON THEATRES, INC. V. WESTOVER 359 U.S. 500 


NO. 45.  ARGUED DECEMBER 10, 1958 - DECIDED MAY 25, 1959 - 252 F.2D 864,
REVERSED. 


IN ANTICIPATION OF A SUIT BY PETITIONER FOR TREBLE DAMAGES UNDER THE
SHERMAN AND CLAYTON ACTS, THE PROSPECTIVE DEFENDANT BROUGHT SUIT
AGAINST PETITIONER IN A FEDERAL DISTRICT COURT FOR A DECLARATORY
JUDGMENT WHICH WOULD HAVE SETTLED SOME OF THE KEY ISSUES IN SUCH AN
ANTITRUST SUIT AND PRAYED THAT THE BRINGING OF SUCH A SUIT BE ENJOINED
PENDING OUTCOME OF THE DECLARATORY JUDGMENT LITIGATION.  PETITIONER
FILED A COUNTERCLAIM RAISING THE ISSUES WHICH WOULD HAVE BEEN RAISED IN
THE ANTITRUST SUIT FOR TREBLE DAMAGES AND DEMANDED A JURY TRIAL. 
PURPORTING TO ACT IN THE EXERCISE OF ITS DISCRETION UNDER RULES 42(B)
AND 57 OF THE FEDERAL RULES OF CIVIL PROCEDURE, THE DISTRICT COURT
RULED THAT IT WOULD TRY IN EQUITY WITHOUT A JURY THE ISSUES COMMON TO
BOTH PROCEEDINGS BEFORE TRYING PETITIONER'S COUNTERCLAIM.  THE COURT OF
APPEALS HELD THAT THE DISTRICT COURT HAD ACTED WITHIN THE PROPER SCOPE
OF ITS DISCRETION, AND IT DENIED PETITIONER'S APPLICATION FOR A WRIT OF
MANDAMUS REQUIRING THE DISTRICT COURT TO SET ASIDE ITS RULING.  HELD:
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.  PP. 501-511. 

1.  THE DISTRICT COURT'S FINDING THAT THE COMPLAINT FOR DECLARATORY
RELIEF PRESENTED BASICALLY EQUITABLE ISSUES DRAWS NO SUPPORT FROM THE
DECLARATORY JUDGMENT ACT, WHICH SPECIFICALLY PRESERVES THE RIGHT TO A
JURY TRIAL FOR BOTH PARTIES.  P. 504. 

2.  IF PETITIONER WOULD HAVE BEEN ENTITLED TO A JURY TRIAL IN A
TREBLE DAMAGE SUIT, HE CANNOT BE DEPRIVED OF THAT RIGHT MERELY BECAUSE
THE PROSPECTIVE DEFENDANT TOOK ADVANTAGE OF THE AVAILABILITY OF
DECLARATORY RELIEF TO SUE PETITIONER FIRST.  P. 504. 

3.  SINCE THE RIGHT TO TRIAL BY JURY APPLIES TO TREBLE DAMAGE SUITS
UNDER THE ANTITRUST LAWS AND IS AN ESSENTIAL PART OF THE CONGRESSIONAL
PLAN FOR MAKING COMPETITION RATHER THAN MONOPOLY THE RULE OF TRADE, THE
ANTITRUST ISSUES RAISED IN THE DECLARATORY JUDGMENT SUIT WERE
ESSENTIALLY JURY QUESTIONS.  P. 504. 

4.  ASSUMING THAT THE PLEADINGS CAN BE CONSTRUED TO SUPPORT A REQUEST
FOR AN INJUNCTION AGAINST THREATS OF LAWSUITS AND AS ALLEGING THE KIND
OF HARASSMENT BY A MULTIPLICITY OF LAWSUITS WHICH WOULD TRADITIONALLY
HAVE JUSTIFIED EQUITY IN TAKING JURISDICTION AND SETTLING THE CASE IN
ONE SUIT, NEVERTHELESS, UNDER THE DECLARATORY JUDGMENT ACT AND THE
FEDERAL RULES OF CIVIL PROCEDURE, NEITHER CLAIM CAN JUSTIFY DENYING
PETITIONER A TRIAL BY JURY OF ALL THE ISSUES IN THE ANTITRUST
CONTROVERSY.   PP. 506-511. 

(A)  TODAY THE EXISTENCE OF IRREPARABLE HARM AND INADEQUACY OF LEGAL
REMEDIES AS A BASIS OF INJUNCTIVE RELIEF MUST BE DETERMINED, NOT BY
PRECEDENTS UNDER DISCARDED PROCEDURES, BUT IN THE LIGHT OF THE REMEDIES
NOW MADE AVAILABLE BY THE DECLARATORY JUDGMENT ACT AND THE FEDERAL
RULES OF CIVIL PROCEDURE.  PP. 506-510. 

(B)  VIEWED IN THIS MANNER, THE USE OF DISCRETION BY THE DISTRICT
COURT UNDER RULE 42(B) TO DEPRIVE PETITIONER OF A FULL JURY TRIAL OF
THE ISSUES IN THE ANTITRUST CONTROVERSY CANNOT BE JUSTIFIED.  P. 508. 

5.  MANDAMUS IS AVAILABLE UNDER THE ALL WRITS ACT, 28 U.S.C. SEC.
1651, TO REQUIRE JURY TRIAL WHERE IT HAS BEEN IMPROPERLY DENIED.  P.
511. 

BEACON THEATRES, INC., V. WESTOVER, U.S. DISTRICT JUDGE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, BEACON THEATRES, INC., SOUGHT BY MANDAMUS TO REQUIRE A
DISTRICT JUDGE IN THE SOUTHERN DISTRICT OF CALIFORNIA TO VACATE CERTAIN
ORDERS ALLEGED TO DEPRIVE IT OF A JURY TRIAL OF ISSUES ARISING IN A
SUIT BROUGHT AGAINST IT BY FOX WEST COAST THEATRES, INC. THE COURT OF
APPEALS FOR THE NINTH CIRCUIT REFUSED THE WRIT, HOLDING THAT THE TRIAL
JUDGE HAD ACTED WITHIN HIS PROPER DISCRETION IN DENYING PETITIONER'S
REQUEST FOR A JURY.  252 F.2D 864.  WE GRANTED CERTIORARI, 356 U.S.
956, BECAUSE "MAINTENANCE OF THE JURY AS A FACT-FINDING BODY IS OF SUCH
IMPORTANCE AND OCCUPIES SO FIRM A PLACE IN OUR HISTORY AND
JURISPRUDENCE THAT ANY SEEMING CURTAILMENT OF THE RIGHT TO A JURY TRIAL
SHOULD BE SCRUTINIZED WITH THE UTMOST CARE."  DIMICK V. SCHIEDT, 293
U.S. 474, 486. 

FOX HAD ASKED FOR DECLARATORY RELIEF AGAINST BEACON ALLEGING A
CONTROVERSY ARISING UNDER THE SHERMAN ANTITRUST ACT, 26 STAT. 209, AS
AMENDED, 15 U.S.C. SECS. 1, 2, AND UNDER THE CLAYTON ACT, 38 STAT. 731,
15 U.S.C. SEC. 15, WHICH AUTHORIZES SUITS FOR TREBLE DAMAGES AGAINST
SHERMAN ACT VIOLATORS.  ACCORDING TO THE COMPLAINT FOX OPERATES A MOVIE
THEATRE IN SAN BERNARDINO, CALIFORNIA, AND HAS LONG BEEN EXHIBITING
FILMS UNDER CONTRACTS WITH MOVIE DISTRIBUTORS.  THESE CONTRACTS GRANT
IT THE EXCLUSIVE RIGHT TO SHOW "FIRST RUN" PICTURES IN THE "SAN
BERNARDINO COMPETITIVE AREA" AND PROVIDE FOR "CLEARANCE" - A PERIOD OF
TIME DURING WHICH NO OTHER THEATRE CAN EXHIBIT THE SAME PICTURES. 
AFTER BUILDING A DRIVE-IN THEATRE ABOUT 11 MILES FROM SAN BERNARDINO,
BEACON NOTIFIED FOX THAT IT CONSIDERED CONTRACTS BARRING SIMULTANEOUS
EXHIBITIONS OF FIRST-RUN FILMS IN THE TWO THEATRES TO BE OVERT ACTS IN
VIOLATION OF THE ANTITRUST LAWS.  (FN1)  FOX'S COMPLAINT ALLEGED THAT
THIS NOTIFICATION, TOGETHER WITH THREATS OF TREBLE DAMAGE SUITS AGAINST
FOX AND ITS DISTRIBUTORS, GAVE RISE TO "DURESS AND COERCION" WHICH
DEPRIVED FOX OF A VALUABLE PROPERTY RIGHT, THE RIGHT TO NEGOTIATE FOR
EXCLUSIVE FIRST-RUN CONTRACTS.  UNLESS BEACON WAS RESTRAINED, THE
COMPLAINT CONTINUED, IRREPARABLE HARM WOULD RESULT.  ACCORDINGLY, WHILE
ITS PLEADING WAS STYLED A "COMPLAINT FOR DECLARATORY RELIEF," FOX
PRAYED BOTH FOR A DECLARATION THAT A GRANT OF CLEARANCE BETWEEN THE FOX
AND BEACON THEATRES IS REASONABLE AND NOT IN VIOLATION OF THE ANTITRUST
LAWS, AND FOR AN INJUNCTION, PENDING FINAL RESOLUTION OF THE
LITIGATION, TO PREVENT BEACON FROM INSTITUTING ANY ACTION UNDER THE
ANTITRUST LAWS AGAINST FOX AND ITS DISTRIBUTORS ARISING OUT OF THE
CONTROVERSY ALLEGED IN THE COMPLAINT.  (FN2)  BEACON FILED AN ANSWER, A
COUNTERCLAIM AGAINST FOX, AND A CROSS-CLAIM AGAINST AN EXHIBITOR WHO
HAD INTERVENED.  THESE DENIED THE THREATS AND ASSERTED THAT THERE WAS
NO SUBSTANTIAL COMPETITION BETWEEN THE TWO THEATRES, THAT THE
CLEARANCES GRANTED WERE THEREFORE UNREASONABLE, AND THAT A CONSPIRACY
EXISTED BETWEEN FOX AND ITS DISTRIBUTORS TO MANIPULATE CONTRACTS AND
CLEARANCES SO AS TO RESTRAIN TRADE AND MONOPOLIZE FIRST-RUN PICTURES IN
VIOLATION OF THE ANTITRUST LAWS.  TREBLE DAMAGES WERE ASKED. 

BEACON DEMANDED A JURY TRIAL OF THE FACTUAL ISSUES IN THE CASE AS
PROVIDED BY FEDERAL RULE OF CIVIL PROCEDURE 38(B).  THE DISTRICT COURT,
HOWEVER, VIEWED THE ISSUES RAISED BY THE "COMPLAINT FOR DECLARATORY
RELIEF," INCLUDING THE QUESTION OF COMPETITION BETWEEN THE TWO
THEATRES, AS ESSENTIALLY EQUITABLE.  ACTING UNDER THE PURPORTED
AUTHORITY OF RULES 42(B) AND 57, IT DIRECTED THAT THESE ISSUES BE TRIED
TO THE COURT BEFORE JURY DETERMINATION OF THE VALIDITY OF THE CHARGES
OF ANTITRUST VIOLATIONS MADE IN THE COUNTERCLAIM AND CROSS-CLAIM. 
(FN3)  A COMMON ISSUE OF THE "COMPLAINT FOR DECLARATORY RELIEF," THE
COUNTERCLAIM, AND THE CROSS-CLAIM WAS THE REASONABLENESS OF THE
CLEARANCES GRANTED TO FOX, WHICH DEPENDED, IN PART, ON THE EXISTENCE OF
COMPETITION BETWEEN THE TWO THEATRES.  THUS THE EFFECT OF THE ACTION OF
THE DISTRICT COURT COULD BE, AS THE COURT OF APPEALS BELIEVED, "TO
LIMIT THE PETITIONER'S OPPORTUNITY FULLY TO TRY TO A JURY EVERY ISSUE
WHICH HAS A BEARING UPON ITS TREBLE DAMAGE SUIT," FOR DETERMINATION OF
THE ISSUE OF CLEARANCES BY THE JUDGE MIGHT "OPERATE EITHER BY WAY OF
RES JUDICATA OR COLLATERAL ESTOPPEL SO AS TO CONCLUDE BOTH PARTIES WITH
RESPECT THERETO AT THE SUBSEQUENT TRIAL OF THE TREBLE DAMAGE CLAIM." 
252 F.2D, AT 874. 

THE DISTRICT COURT'S FINDING THAT THE COMPLAINT FOR DECLARATORY
RELIEF PRESENTED BASICALLY EQUITABLE ISSUES DRAWS NO SUPPORT FROM THE
DECLARATORY JUDGMENT ACT, 28 U.S.C. SECS. 2201, 2202; FED. RULES CIV.
PROC., 57.  SEE ALSO 48 STAT. 955, 28 U.S.C. (1940 ED.)  SEC.  400.
THAT STATUTE, WHILE ALLOWING PROSPECTIVE DEFENDANTS TO SUE TO ESTABLISH
THEIR NONLIABILITY, SPECIFICALLY PRESERVES THE RIGHT TO JURY TRIAL FOR
BOTH PARTIES.  (FN4)  IT FOLLOWS THAT IF BEACON WOULD HAVE BEEN
ENTITLED TO A JURY TRIAL IN A TREBLE DAMAGE SUIT AGAINST FOX IT CANNOT
BE DEPRIVED OF THAT RIGHT MERELY BECAUSE FOX TOOK ADVANTAGE OF THE
AVAILABILITY OF DECLARATORY RELIEF TO SUE BEACON FIRST.  SINCE THE
RIGHT TO TRIAL BY JURY APPLIES TO TREBLE DAMAGE SUITS UNDER THE
ANTITRUST LAWS, AND IS, IN FACT, AN ESSENTIAL PART OF THE CONGRESSIONAL
PLAN FOR MAKING COMPETITION RATHER THAN MONOPOLY THE RULE OF TRADE, SEE
FLEITMANN V. WELSBACH STREET LIGHTING CO., 240 U.S. 27, 29, THE SHERMAN
AND CLAYTON ACT ISSUES ON WHICH FOX SOUGHT A DECLARATION WERE
ESSENTIALLY JURY QUESTIONS. 

NEVERTHELESS THE COURT OF APPEALS REFUSED TO UPSET THE ORDER OF THE
DISTRICT JUDGE.  IT HELD THAT THE QUESTION OF WHETHER A RIGHT TO JURY
TRIAL EXISTED WAS TO BE JUDGED BY FOX'S COMPLAINT READ AS A WHOLE.  IN
ADDITION TO SEEKING A DECLARATORY JUDGMENT, THE COURT SAID, FOX'S
COMPLAINT CAN BE READ AS MAKING OUT A VALID PLEA FOR INJUNCTIVE RELIEF,
THUS STATING A CLAIM TRADITIONALLY COGNIZABLE IN EQUITY.  A PARTY WHO
IS ENTITLED TO MAINTAIN A SUIT IN EQUITY FOR AN INJUNCTION, SAID THE
COURT, MAY HAVE ALL THE ISSUES IN HIS SUIT DETERMINED BY THE JUDGE
WITHOUT A JURY REGARDLESS OF WHETHER LEGAL RIGHTS ARE INVOLVED.  THE
COURT THEN REJECTED THE ARGUMENT THAT EQUITABLE RELIEF, TRADITIONALLY
AVAILABLE ONLY WHEN LEGAL REMEDIES ARE INADEQUATE, WAS RENDERED
UNNECESSARY IN THIS CASE BY THE FILING OF THE COUNTERCLAIM AND CROSS
CLAIM WHICH PRESENTED ALL THE ISSUES NECESSARY TO A DETERMINATION OF
THE RIGHT TO INJUNCTIVE RELIEF.  RELYING ON AMERICAN LIFE INS. CO. V.
STEWART, 300 U.S. 203, 215, DECIDED BEFORE THE ENACTMENT OF THE FEDERAL
RULES OF CIVIL PROCEDURE, IT INVOKED THE PRINCIPLE THAT A COURT SITTING
IN EQUITY COULD RETAIN JURISDICTION EVEN THOUGH LATER A LEGAL REMEDY
BECAME AVAILABLE.  IN SUCH INSTANCES THE EQUITY COURT HAD DISCRETION TO
ENJOIN THE LATER LAWSUIT IN ORDER TO ALLOW THE WHOLE DISPUTE TO BE
DETERMINED IN ONE CASE IN ONE COURT.  (FN5)  REASONING BY ANALOGY, THE
COURT OF APPEALS HELD IT WAS NOT AN ABUSE OF DISCRETION FOR THE
DISTRICT JUDGE, ACTING UNDER FEDERAL RULE OF CIVIL PROCEDURE 42(B), TO
TRY THE EQUITABLE CAUSE FIRST EVEN THOUGH THIS MIGHT, THROUGH
COLLATERAL ESTOPPEL, PREVENT A FULL JURY TRIAL OF THE COUNTERCLAIM AND
CROSS-CLAIM WHICH WERE AS EFFECTIVELY STOPPED AS BY AN EQUITY
INJUNCTION.  (FN6) 

BEACON TAKES ISSUE WITH THE HOLDING OF THE COURT OF APPEALS THAT THE
COMPLAINT STATED A CLAIM UPON WHICH EQUITABLE RELIEF COULD BE GRANTED. 
AS INITIALLY FILED THE COMPLAINT ALLEGED THAT THREATS OF LAWSUITS BY
PETITIONER AGAINST FOX AND ITS DISTRIBUTORS WERE CAUSING IRREPARABLE
HARM TO FOX'S BUSINESS RELATIONSHIPS.  THE PRAYER FOR RELIEF, HOWEVER,
MADE NO MENTION OF THE THREATS BUT ASKED ONLY THAT PENDING LITIGATION
OF THE CLAIM FOR DECLARATORY JUDGMENT, BEACON BE ENJOINED FROM
BEGINNING ANY LAWSUITS UNDER THE ANTITRUST LAWS AGAINST FOX AND ITS
DISTRIBUTORS ARISING OUT OF THE CONTROVERSY ALLEGED IN THE COMPLAINT. 
EVIDENTLY OF THE OPINION THAT THIS PRAYER DID NOT STATE A GOOD CLAIM
FOR EQUITABLE RELIEF, THE COURT OF APPEALS CONSTRUED IT TO INCLUDE A
REQUEST FOR AN INJUNCTION AGAINST THREATS OF LAWSUITS.  THIS LIBERAL
CONSTRUCTION OF A PLEADING IS IN LINE WITH RULE 8 OF THE FEDERAL RULES
OF CIVIL PROCEDURE.  SEE CONLEY V. GIVSON, 355 U.S. 41, 47-48.  BUT
THIS FACT DOES NOT SOLVE OUR PROBLEM.  ASSUMING THAT THE PLEADINGS CAN
BE CONSTRUED TO SUPPORT SUCH A REQUEST AND ASSUMING ADDITIONALLY THAT
THE COMPLAINT CAN BE READ AS ALLEGING THE KIND OF HARASSMENT BY A
MULTIPLICITY OF LAWSUITS WHICH WOULD TRADITIONALLY HAVE JUSTIFIED
EQUITY TO TAKE JURISDICTION AND SETTLE THE CASE IN ONE SUIT, (FN7) WE
ARE NEVERTHELESS OF THE OPINION THAT, UNDER THE DECLARATORY JUDGMENT
ACT AND THE FEDERAL RULES OF CIVIL PROCEDURE, NEITHER CLAIM CAN JUSTIFY
DENYING BEACON A TRIAL BY JURY OF ALL THE ISSUES IN THE ANTITRUST
CONTROVERSY. 

THE BASIS OF INJUNCTIVE RELIEF IN THE FEDERAL COURTS HAS ALWAYS BEEN
IRREPARABLE HARM AND INADEQUACY OF LEGAL REMEDIES.  (FN8)  AT LEAST AS
MUCH IS REQUIRED TO JUSTIFY A TRIAL COURT IN USING ITS DISCRETION UNDER
THE FEDERAL RULES TO ALLOW CLAIMS OF EQUITABLE ORIGINS TO BE TRIED
AHEAD OF LEGAL ONES, SINCE THIS HAD THE SAME EFFECT AS AN EQUITABLE
INJUNCTION OF THE LEGAL CLAIMS.  AND IT IS IMMATERIAL, IN JUDGING IF
THAT DISCRETION IS PROPERLY EMPLOYED, THAT BEFORE THE FEDERAL RULES AND
THE DECLARATORY JUDGMENT ACT WERE PASSED, COURTS OF EQUITY, EXERCISING
A JURISDICTION SEPARATE FROM COURTS OF LAW, WERE, IN SOME CASES,
ALLOWED TO ENJOIN SUBSEQUENT LEGAL ACTIONS BETWEEN THE SAME PARTIES
INVOLVING THE SAME CONTROVERSY.  THIS WAS BECAUSE THE SUBSEQUENT LEGAL
ACTION, THOUGH PROVIDING AN OPPORTUNITY TO TRY THE CASE TO A JURY,
MIGHT NOT PROTECT THE RIGHT OF THE EQUITY PLAINTIFF TO A FAIR AND
ORDERLY ADJUDICATION OF THE CONTROVERSY.  SEE, E.G., NEW YORK LIFE INS.
CO. V.  SEYMOUR, 45 F.2D 47.  UNDER SUCH CIRCUMSTANCES THE LEGAL REMEDY
COULD QUITE NATURALLY BE DEEMED INADEQUATE.  INADEQUACY OF REMEDY AND
IRREPARABLE HARM ARE PRACTICAL TERMS, HOWEVER.  AS SUCH THEIR EXISTENCE
TODAY MUST BE DETERMINED, NOT BY PRECEDENTS DECIDED UNDER DISCARDED
PROCEDURES, BUT IN THE LIGHT OF THE REMEDIES NOW MADE AVAILABLE BY THE
DECLARATORY JUDGMENT ACT AND THE FEDERAL RULES.  (FN9) 

VIEWED IN THIS MANNER, THE USE OF DISCRETION BY THE TRIAL COURT UNDER
RULE 42(B) TO DEPRIVE BEACON OF A FULL JURY TRIAL ON ITS COUNTERCLAIM
AND CROSS-CLAIM, AS WELL AS ON FOX'S PLEA FOR DECLARATORY RELIEF,
CANNOT BE JUSTIFIED.  UNDER THE FEDERAL RULES THE SAME COURT MAY TRY
BOTH LEGAL AND EQUITABLE CAUSES IN THE SAME ACTION.  FED. RULES CIV.
PROC., 1, 2, 18.  THUS ANY DEFENSES, EQUITABLE OR LEGAL, FOX MAY HAVE
TO CHARGES OF ANTITRUST VIOLATIONS CAN BE RAISED EITHER IN ITS SUIT FOR
DECLARATORY RELIEF OR IN ANSWER TO BEACON'S COUNTERCLAIM.  ON PROPER
SHOWING, HARASSMENT BY THREATS OF OTHER SUITS, OR OTHER SUITS ACTUALLY
BROUGHT, INVOLVING THE ISSUES BEING TRIED IN THIS CASE, COULD BE
TEMPORARILY ENJOINED PENDING THE OUTCOME OF THIS LITIGATION.  WHATEVER
PERMANENT INJUNCTIVE RELIEF FOX MIGHT BE ENTITLED TO ON THE BASIS OF
THE DECISION IN THIS CASE COULD, OF COURSE, BE GIVEN BY THE COURT AFTER
THE JURY RENDERS ITS VERDICT.  IN THIS WAY THE ISSUES BETWEEN THESE
PARTIES COULD BE SETTLED IN ONE SUIT GIVING BEACON A FULL JURY TRIAL OF
EVERY ANTITRUST ISSUE.   CF. RING V. SPINA, 166 F.2D 546.  BY CONTRAST,
THE HOLDING OF THE COURT BELOW WHILE GRANTING FOX NO ADDITIONAL
PROTECTION UNLESS THE AVOIDANCE OF JURY TRIAL BE CONSIDERED AS SUCH,
WOULD COMPEL BEACON TO SPLIT HIS ANTITRUST CASE, TRYING PART TO A JUDGE
AND PART TO A JURY.  (FN10)  SUCH A RESULT, WHICH INVOLVES THE
POSTPONEMENT AND SUBORDINATION OF FOX'S OWN LEGAL CLAIM FOR DECLARATORY
RELIEF AS WELL AS OF THE COUNTERCLAIM WHICH BEACON WAS COMPELLED BY THE
FEDERAL RULES TO BRING, (FN11) IS NOT PERMISSIBLE. 

OUR DECISION IS CONSISTENT WITH THE PLAN OF THE FEDERAL RULES AND THE
DECLARATORY JUDGMENT ACT TO EFFECT SUBSTANTIAL PROCEDURAL REFORM WHILE
RETAINING A DISTINCTION BETWEEN JURY AND NONJURY ISSUES AND LEAVING
SUBSTANTIVE RIGHTS UNCHANGED.  (FN12)  SINCE IN THE FEDERAL COURTS
EQUITY HAS ALWAYS ACTED ONLY WHEN LEGAL REMEDIES WERE INADEQUATE,
(FN13) THE EXPANSION OF ADEQUATE LEGAL REMEDIES PROVIDED BY THE
DECLARATORY JUDGMENT ACT AND THE FEDERAL RULES NECESSARILY AFFECTS THE
SCOPE OF EQUITY.  THUS, THE JUSTIFICATION FOR EQUITY'S DECIDING LEGAL
ISSUES ONCE IT OBTAINS JURISDICTION, AND REFUSING TO DISMISS A CASE,
MERELY BECAUSE SUBSEQUENTLY A LEGAL REMEDY BECOMES AVAILABLE, MUST BE
RE-EVALUATED IN THE LIGHT OF THE LIBERAL JOINDER PROVISIONS OF THE
FEDERAL RULES WHICH ALLOW LEGAL AND EQUITABLE CAUSES TO BE BROUGHT AND
RESOLVED IN ONE CIVIL ACTION.  (FN14)  SIMILARLY THE NEED FOR, AND
THEREFORE, THE AVAILABILITY OF SUCH EQUITABLE REMEDIES AS BILLS OF
PEACE, QUIA TIMET AND INJUNCTION MUST BE RECONSIDERED IN VIEW OF THE
EXISTENCE OF THE DECLARATORY JUDGMENT ACT AS WELL AS THE LIBERAL
JOINDER PROVISION OF THE RULES.  (FN15)  THIS IS NOT ONLY IN ACCORD
WITH THE SPIRIT OF THE RULES AND THE ACT BUT IS REQUIRED BY THE
PROVISION IN THE RULES THAT "THE RIGHT TO TRIAL BY JURY AS DECLARED BY
THE SEVENTH AMENDMENT TO THE CONSTITUTION OR AS GIVEN BY A STATUTE OF
THE UNITED STATES SHALL BE PRESERVED  ...  INVIOLATE."  (FN16)    IF
THERE SHOULD BE CASES WHERE THE AVAILABILITY OF DECLARATORY JUDGMENT OR
JOINDER IN ONE SUIT OF LEGAL AND EQUITABLE CAUSES WOULD NOT IN ALL
RESPECTS PROTECT THE PLAINTIFF SEEKING EQUITABLE RELIEF FROM
IRREPARABLE HARM WHILE AFFORDING A JURY TRIAL IN THE LEGAL CAUSE THE
TRIAL COURT WILL NECESSARILY HAVE TO USE ITS DISCRETION IN DECIDING
WHETHER THE LEGAL OR EQUITABLE CAUSE SHOULD BE TRIED FIRST.  SINCE THE
RIGHT TO JURY TRIAL IS A CONSTITUTIONAL ONE, HOWEVER, WHILE NO SIMILAR
REQUIREMENT PROTECTS TRIALS BY THE COURT, (FN17) THAT DISCRETION IS
VERY NARROWLY LIMITED AND MUST, WHEREVER POSSIBLE, BE EXERCISED TO
PRESERVE JURY TRIAL.  AS THIS COURT SAID IN SCOTT V. NEELY, 140 U.S.
106, 109-110:  "IN THE FEDERAL COURTS THIS (JURY) RIGHT CANNOT BE
DISPENSED WITH, EXCEPT BY THE ASSENT OF THE PARTIES ENTITLED TO IT, NOR
CAN IT BE IMPAIRED BY ANY BLENDING WITH A CLAIM, PROPERLY COGNIZABLE AT
LAW, OF A DEMAND FOR EQUITABLE RELIEF IN AID OF THE LEGAL ACTION OR
DURING ITS PENDENCY."  (FN18)  THIS LONG-STANDING PRINCIPLE OF EQUITY
DICTATES THAT ONLY UNDER THE MOST IMPERATIVE CIRCUMSTANCES,
CIRCUMSTANCES WHICH IN VIEW OF THE FLEXIBLE PROCEDURES OF THE FEDERAL
RULES WE CANNOT NOW ANTICIPATE, (FN19) CAN THE RIGHT TO A JURY TRIAL OF
LEGAL ISSUES BE LOST THROUGH PRIOR DETERMINATION OF EQUITABLE CLAIMS. 
SEE LEIMER V. WOODS, 196 F.2D 828, 833-836.  AS WE HAVE SHOWN, THIS IS
FAR FROM BEING SUCH A CASE. 

RESPONDENT CLAIMS MANDAMUS IS NOT AVAILABLE UNDER THE ALL WRITS ACT,
28 U.S.C. SEC. 1651.  WHATEVER DIFFERENCES OF OPINION THERE MAY BE IN
OTHER TYPES OF CASES, WE THINK THE RIGHT TO GRANT MANDAMUS TO REQUIRE
JURY TRIAL WHERE IT HAS BEEN IMPROPERLY DENIED IS SETTLED.  (FN20) 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  BEACON ALLEGEDLY STATED THAT THE CLEARANCES GRANTED VIOLATED
BOTH THE ANTITRUST LAWS AND THE DECREES ISSUED IN UNITED STATES V.
PARAMOUNT PICTURES, INC., 66 F. SUPP. 323, 70 F. SUPP. 53, AFFIRMED IN
PART AND REVERSED IN PART, 334 U.S. 131, SUBSEQUENT PROCEEDINGS IN THE
DISTRICT COURT, 85 F. SUPP. 881.  THE DECREES IN THAT CASE SET LIMITS
ON WHAT CLEARANCES COULD BE GIVEN WHEN THEATRES WERE IN COMPETITION
WITH EACH OTHER AND HELD THAT THERE SHOULD BE NO CLEARANCES BETWEEN
THEATRES NOT IN SUBSTANTIAL COMPETITION.  NEITHER BEACON NOR FOX,
HOWEVER, APPEARS TO HAVE BEEN A PARTY TO THOSE DECREES.  THEIR
RELEVANCE, THEREFORE, SEEMS TO BE ONLY THAT OF SIGNIFICANT PRECEDENTS. 

FN2  OTHER PRAYERS ASIDE FROM THE GENERAL EQUITABLE PLEA FOR "SUCH
FURTHER RELIEF AS THE COURT DEEMS PROPER" ADDED NOTHING MATERIAL TO
THOSE SET OUT. 

FN3  FED. RULES CIV. PROC., 42(B) READS:  "THE COURT IN FURTHERANCE
OF CONVENIENCE OR TO AVOID PREJUDICE MAY ORDER A SEPARATE TRIAL OF ANY
CLAIM, CROSS-CLAIM, COUNTERCLAIM, OR THIRD-PARTY CLAIM, OR OF ANY
SEPARATE ISSUE OR OF ANY NUMBER OF CLAIMS, CROSS-CLAIMS, COUNTERCLAIMS,
THIRD-PARTY CLAIMS, OR ISSUES."  RULE 57 READS IN PART:  "THE COURT MAY
ORDER A SPEEDY HEARING OF AN ACTION FOR A DECLARATORY JUDGMENT AND MAY
ADVANCE IT ON THE CALENDAR." 

FN4  SEE, E.G., (AMERICAN) LUMBERMENS MUT. CAS. CO. V. TIMMS &
HOWARD, INC., 108 F.2D 497; HARGROVE V. AMERICAN CENT. INS. CO., 125
F.2D 225; JOHNSON V. FIDELITY & CASUALTY CO., 238 F.2D 322.   SEE FED.
RULES CIV. PROC., 57, 38, 39. 

FN5  COMPARE ENELOW V. NEW YORK LIFE INS. CO., 293 U.S. 379, WITH
AMERICAN LIFE INS.  CO. V. STEWART, 300 U.S. 203.  SEE ALSO CITY OF
MORGANTOWN V. ROYAL INS. CO., 337 U.S. 254; PEAKE V. LINCOLN NAT. LIFE
INS. CO., 15 F.2D 303. 

FN6  252 F.2D, AT 874.  IN ETTELSON V. METROPOLITAN LIFE INS. CO.,
317 U.S. 188, 192, THIS COURT RECOGNIZED THAT ORDERS ENABLING EQUITABLE
CAUSES TO BE TRIED BEFORE LEGAL ONES HAD THE SAME EFFECT AS
INJUNCTIONS.  IN CITY OF MORGANTOWN V. ROYAL INS. CO., 337 U.S. 254,
THE COURT DENIED AT LEAST SOME SUCH ORDERS THE STATUS OF INJUNCTIONS
FOR THE PURPOSES OF APPEALABILITY.  IT DID NOT, OF COURSE, IMPLY THAT
WHEN THE ORDERS CAME TO BE REVIEWED THEY WOULD BE EXAMINED ANY LESS
STRICTLY THAN INJUNCTIONS.  337 U.S., AT 258. 

FN7  SEE, E.G., SMYTH V. AMES, 169 U.S. 466, 515; DETROIT V. DETROIT
CITIZENS' STREET R. CO., 184 U.S. 368, 378-382; CF. MATTHEWS V.
RODGERS, 284 U.S. 521. 

FN8  E.G., PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., 13 HOW. 
518, 561; PARKER V. WINNIPISEOGEE LAKE COTTON & WOOLLEN CO., 2 BLACK
545, 551; ENELOW V. NEW YORK LIFE INS.  CO., 293 U.S. 379. 

FN9  SEE, E.G., COOK, CASES ON EQUITY (4TH ED.), 18; 4 POMEROY,
EQUITY JURISPRUDENCE (5TH ED), SEC. 1370; 5 MOORE, FEDERAL PRACTICE,
154-158; MORRIS, JURY TRIAL UNDER THE FEDERAL FUSION OF LAW AND EQUITY,
20 TEX. L. REV. 427, 441-443.  CF. MARYLAND THEATER CORP. V. BRENNAN,
180 MD. 377, 389, 24 A.2D 911; HASSELBRING V. KOEPKE, 263 MICH. 466,
248 N.W. 869.  BUT CF. 1 POMEROY, EQUITY JURISPRUDENCE (5TH ED.), SECS.
182, 183.  SIGNIFICANTLY THE COURT OF APPEALS ITSELF RELIED ON THE
PROCEDURAL CHANGES BROUGHT ABOUT BY THE FEDERAL RULES WHEN IT FOUND THE
PLEA FOR EQUITABLE RELIEF VALID, FOR IT DID SO BY RELYING ON CONLEY V.
GIBSON, 355 U.S. 41, WHICH EMPHASIZED THE LIBERAL CONSTRUCTION POLICIES
OF THE RULES. 

FN10  SINCE THE ISSUE OF VIOLATION OF THE ANTITRUST LAWS OFTEN TURNS
ON THE REASONABLENESS OF A RESTRAINT ON TRADE IN THE LIGHT OF ALL THE
FACTS, SEE, E.G., STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 60, IT
IS PARTICULARLY UNDESIRABLE TO HAVE SOME OF THE RELEVANT CONSIDERATIONS
TRIED BY ONE FACT FINDER AND SOME BY ANOTHER. 

FN11  FED. RULES CIV. PROC., 13(A). 

FN12  SEE 28 U.S.C. SEC. 2072; FED. RULES CIV. PROC., 39(A), 57.  SEE
ALSO STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368, 382, N. 26; UNITED
STATES V. YELLOW CAB CO., 340 U.S. 543, 555-556. 

FN13  SEE 36 STAT. 1163, DERIVED FROM ACT OF SEPT. 24, 1789, SEC. 16,
1 STAT. 82.  THIS PROVISION, WHICH ANTEDATES THE SEVENTH AMENDMENT, IS
DISCUSSED IN 5 MOORE, FEDERAL PRACTICE, 32.  SEE, E.G., HIPP V. BABIN,
19 HOW.  271, 277-278; INSURANCE CO. V. BAILEY, 13 WALL.  616, 620-621;
GRAND CHUTE V. WINEGAR, 15 WALL, 373; BUZARD V. HOUSTON, 119 U.S. 347,
351-352. 

FN14  SEE FED. RULES CIV. PROC., 1, 2, 18.  CF. PRUDENTIAL INS. CO.
V. SAXE, 134 F.2D 16, 31-34; MORRIS, JURY TRIAL UNDER THE FEDERAL
FUSION OF LAW AND EQUITY, 20 TEX. L. REV. 427, 441-443. 

FN15  SEE 1 POMEROY, EQUITY JURISPRUDENCE (5TH ED.), SECS. 251 3/4,
254, 264(B); 5 MOORE, FEDERAL PRACTICE, 32; BUT CF. ID., 209-211.  SEE
ALSO, NOTE, THE JOINDER RULES AND EQUITY JURISDICTION IN THE AVOIDANCE
OF A MULTIPLICITY OF SUITS, 12 MD. L. REV. 88.  OF COURSE, UNLESS THERE
IS AN ISSUE OF A RIGHT TO JURY TRIAL OR OF OTHER RIGHTS WHICH DEPEND ON
WHETHER THE CAUSE IS A "LEGAL" OR "EQUITABLE" ONE, THE QUESTION OF
ADEQUACY OF LEGAL REMEDIES IS PURELY ACADEMIC AND NEED NOT ARISE. 

FN16  FED. RULES CIV. PROC., 38(A).  IN DELEGATING TO THE SUPREME
COURT RESPONSIBILITY FOR DRAWING UP RULES, CONGRESS DECLARED THAT:
"SUCH RULES SHALL NOT ABRIDGE, ENLARGE OR MODIFY ANY SUBSTANTIVE RIGHT
AND SHALL PRESERVE THE RIGHT OF TRIAL BY JURY AS AT COMMON LAW AND AS
DECLARED BY THE SEVENTH AMENDMENT TO THE CONSTITUTION."  28 U.S.C. SEC.
2072.  THE SEVENTH AMENDMENT READS:  "IN SUITS AT COMMON LAW, WHERE THE
VALUE IN CONTROVERSY SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY
JURY SHALL BE PRESERVED, AND NO FACT TRIED BY A JURY, SHALL BE
OTHERWISE RE-EXAMINED IN ANY COURT OF THE UNITED STATES, THAN ACCORDING
TO THE RULES OF THE COMMON LAW." 

FN17  SEE HURWITZ V. HURWITZ, 78 U.S. APP. D.C. 66, 136 F.2D 796, 798
799; CF. THE GENESEE CHIEF V. FITZHUGH, 12 HOW.  443, 459-460. 

FN18  THIS COURT HAS LONG EMPHASIZED THE IMPORTANCE OF THE JURY
TRIAL.  SEE PARSONS V. BEDFORD, 3 PET. 433, 446.  SEE ALSO GALLOWAY V.
UNITED STATES, 319 U.S. 372.  ID., AT 396 (DISSENTING OPINION). 

FN19  FOR AN EXAMPLE OF THE FLEXIBILE PROCEDURES AVAILABLE UNDER THE
FEDERAL RULES, SEE RING V. SPINA, 166 F.2D 546, 550. 

FN20  E.G., EX PARTE SIMONS, 247 U.S. 231, 239-240; EX PARTE
PETERSON, 253 U.S. 300, 305-306; BERESLAVSKY V. CAFFEY, 161 F.2D 499
(C.A.2D CIR.); CANISTER CO. V. LEAHY, 191 F.2D 255 (C.A. 3D CIR.);
BLACK V. BOYD, 248 F.2D 156, 160-161 (C.A. 6TH CIR.).  CF.  BRUCKMAN V.
HOLLZER, 152 F.2D 730 (C.A. 9TH CIR.).  BUT CF. IN RE CHAPPELL & CO.,
201 F.2D 343 (C.A. 1ST CIR.).  SEE ALSO LA BUY V. HOWES LEATHER CO.,
352 U.S. 249. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
WHITTAKER CONCUR, DISSENTING. 

THERE CAN BE NO DOUBT THAT A LITIGANT IS ENTITLED TO A WRIT OF
MANDAMUS TO PROTECT A CLEAR CONSTITUTIONAL OR STATUTORY RIGHT TO A JURY
TRIAL.  BUT THERE WAS NO DENIAL OF SUCH A RIGHT HERE.  THE DISTRICT
JUDGE SIMPLY EXERCISED HIS INHERENT DISCRETION, HOW EXPLICITLY
CONFIRMED BY THE FEDERAL RULES OF CIVIL PROCEDURE, TO SCHEDULE THE
TRIAL OF AN EQUITABLE CLAIM IN ADVANCE OF AN ACTION AT LAW.  EVEN AN
ABUSE OF SUCH DISCRETION COULD NOT, I THINK, BE ATTACKED BY THE
EXTRAORDINARY WRIT OF MANDAMUS.  (FN1)  IN ANY EVENT NO ABUSE OF
DISCRETION IS APPARENT IN THIS CASE. 

THE COMPLAINT FILED BY FOX STATED A CLAIM TRADITIONALLY COGNIZABLE IN
EQUITY.  THAT CLAIM, IN BRIEF, WAS THAT BEACON HAD WRONGFULLY
INTERFERED WITH THE RIGHT OF FOX TO COMPETE FREELY WITH BEACON AND
OTHER DISTRIBUTORS FOR THE LICENSING OF FILMS FOR FIRST-RUN EXHIBITION
IN THE SAN BERNARDINO AREA.  THE COMPLAINT ALLEGED THAT THE PLAINTIFF
WAS WITHOUT AN ADEQUATE REMEDY AT LAW AND WOULD BE IRREPARABLY HARMED
UNLESS THE DEFENDANT WERE RESTRAINED FROM CONTINUING TO INTERFERE - BY
COERCION AND THREATS OF LITIGATION - WITH THE PLAINTIFF'S LAWFUL
BUSINESS RELATIONSHIPS. 

THE COURT OF APPEALS FOUND THAT THE COMPLAINT, ALTHOUGH
INARTISTICALLY DRAWN, CONTAINED ALLEGATIONS ENTITLING THE PETITIONER TO
EQUITABLE RELIEF.  (FN2)  THAT FINDING IS ACCEPTED IN THE PREVAILING
OPINION TODAY.  IF THE COMPLAINT HAD BEEN ANSWERED SIMPLY BY A GENERAL
DENIAL, THEREFORE, THE ISSUES WOULD UNDER TRADITIONAL PRINCIPLES HAVE
BEEN TRIABLE AS A PROCEEDING IN EQUITY.  INSTEAD OF JUST PUTTING IN
ISSUE THE ALLEGATIONS OF THE COMPLAINT, HOWEVER, BEACON FILED PLEADINGS
WHICH AFFIRMATIVELY ALLEGED THE EXISTENCE OF A BROAD CONSPIRACY AMONG
THE PLAINTIFF AND OTHER THEATRE OWNERS TO MONOPOLIZE THE FIRST-RUN
EXHIBITION OF FILMS IN THE SAN BERNARDINO AREA, TO REFRAIN FROM
COMPETING AMONG THEMSELVES, AND TO DISCRIMINATE AGAINST BEACON IN
GRANTING FILM LICENSES.  BASED UPON THESE ALLEGATIONS, BEACON ASKED
DAMAGES IN THE AMOUNT OF $300,000.  CLEARLY THESE CONSPIRACY
ALLEGATIONS STATED A CAUSE OF ACTION TRIABLE AS OF RIGHT BY A JURY. 
WHAT WAS DEMANDED BY BEACON, HOWEVER, WAS A JURY TRIAL NOT ONLY OF THIS
CAUSE OF ACTION, BUT ALSO OF THE ISSUES PRESENTED BY THE ORIGINAL
COMPLAINT. 

UPON MOTION OF FOX THE TRIAL JUDGE ORDERED THE ORIGINAL ACTION FOR
DECLARATORY AND EQUITABLE RELIEF TO BE TRIED SEPARATELY TO THE COURT
AND IN ADVANCE OF THE TRIAL OF THE DEFENDANT'S COUNTERCLAIM AND CROSS
CLAIM FOR DAMAGES.  THE COURT'S ORDER, WHICH CAREFULLY PRESERVED THE
RIGHT TO TRIAL BY JURY UPON THE CONSPIRACY AND DAMAGE ISSUES RAISED BY
THE COUNTERCLAIM AND CROSS-CLAIM, WAS IN CONFORMITY WITH THE SPECIFIC
PROVISIONS OF THE FEDERAL RULES OF CIVIL PROCEDURE.  (FN3)  YET IT IS
DECIDED TODAY THAT THE COURT OF APPEALS MUST COMPEL THE DISTRICT JUDGE
TO RESCIND IT. 

ASSUMING THE EXISTENCE OF A FACTUAL ISSUE COMMON BOTH TO THE
PLAINTIFF'S ORIGINAL ACTION AND THE DEFENDANT'S COUNTERCLAIM FOR
DAMAGES, I CANNOT AGREE THAT THE DISTRICT COURT MUST BE COMPELLED TO
TRY THE COUNTERCLAIM FIRST.  (FN4)  IT IS, OF COURSE, A MATTER OF NO
GREAT MOMENT IN WHAT ORDER THE ISSUES BETWEEN THE PARTIES IN THE
PRESENT LITIGATION ARE TRIED.  WHAT IS DISTURBING IS THE PROCESS BY
WHICH THE COURT ARRIVES AT ITS DECISION - A PROCESS WHICH APPEARS TO
DISREGARD THE HISTORIC RELATIONSHIP BETWEEN EQUITY AND LAW. 

            I. 

THE COURT SUGGESTS THAT "THE EXPANSION OF ADEQUATE LEGAL REMEDIES
PROVIDED BY THE DECLARATORY JUDGMENT ACT  ...  NECESSARILY AFFECTS THE
SCOPE OF EQUITY."  DOES THE COURT MEAN TO SAY THAT THE MERE
AVAILABILITY OF AN ACTION FOR A DECLARATORY JUDGMENT OPERATES TO
FURNISH "AN ADEQUATE REMEDY AT LAW" SO AS TO DEPRIVE A COURT OF EQUITY
OF THE POWER TO ACT?  THAT NOVEL LINE OF REASONING IS AT LEAST IMPLIED
IN THE COURT'S OPINION.  BUT THE DECLARATORY JUDGMENT ACT DID NOT
"EXPAND" THE SUBSTANTIVE LAW.  THAT ACT MERELY PROVIDED A NEW STATUTORY
REMEDY, NEITHER LEGAL NOR EQUITABLE, BUT AVAILABLE IN THE AREAS OF BOTH
EQUITY AND LAW.  WHEN DECLARATORY RELIEF IS SOUGHT, THE RIGHT TO TRIAL
BY JURY DEPENDS UPON THE BASIC CONTEXT IN WHICH THE ISSUES ARE
PRESENTED.  SEE MOORE'S FEDERAL PRACTICE (2D ED.)  SECS.  38.29, 57.30;
BORCHARD, DECLARATORY JUDGMENTS (2D ED.), 399-404.  IF THE BASIC ISSUES
IN AN ACTION FOR DECLARATORY RELIEF ARE OF A KIND TRADITIONALLY
COGNIZABLE IN EQUITY, E.G., A SUIT FOR CANCELLATION OF WRITTEN
INSTRUMENT, THE DECLARATORY JUDGMENT IS NOT A "REMEDY AT LAW."  (FN5)
IF, ON THE OTHER HAND, THE ISSUES ARISE IN A CONTEXT TRADITIONALLY
COGNIZABLE AT COMMON LAW, THE RIGHT TO A JURY TRIAL OF COURSE REMAINS
UNIMPAIRED, EVEN THOUGH THE ONLY RELIEF DEMANDED IS A DECLARATORY
JUDGMENT.  (FN6) 

THUS, IF IN THIS CASE THE COMPLAINT HAD ASKED MERELY FOR A JUDGMENT
DECLARING THAT THE PLAINTIFF'S SPECIFIED MANNER OF BUSINESS DEALINGS
WITH DISTRIBUTORS AND OTHER EXHIBITORS DID NOT RENDER IT LIABLE TO
BEACON UNDER THE ANTITRUST LAWS, THIS WOULD HAVE BEEN SIMPLY A
"JUXTAPOSITION OF PARTIES" CASE IN WHICH BEACON COULD HAVE DEMANDED A
JURY TRIAL.  (FN7)  BUT THE COMPLAINT IN THE PRESENT CASE, AS THE COURT
RECOGNIZES, PRESENTED ISSUES OF EXCLUSIVELY EQUITABLE COGNIZANCE, GOING
WELL BEYOND A MERE DEFENSE TO ANY SUBSEQUENT ACTION AT LAW.  FOX SOUGHT
FROM THE COURT PROTECTION AGAINST BEACON'S ALLEGEDLY UNLAWFUL
INTERFERENCE WITH ITS BUSINESS RELATIONSHIPS - PROTECTION WHICH THIS
COURT SEEMS TO RECOGNIZE MIGHT NOT HAVE BEEN AFFORDED BY A DECLARATORY
JUDGMENT, UNSUPPLEMENTED BY EQUITABLE RELIEF.  THE AVAILABILITY OF A
DECLARATORY JUDGMENT DID NOT, THEREFORE, OPERATE TO CONFER UPON BEACON
THE RIGHT TO TRIAL BY JURY WITH RESPECT TO THE ISSUES RAISED BY THE
COMPLAINT.                                             II. 

THE COURT'S OPINION DOES NOT, OF COURSE, HOLD OR EVEN SUGGEST THAT A
COURT OF EQUITY MAY NEVER DETERMINE "LEGAL RIGHTS."  FOR INDEED IT IS
PRECISELY SUCH RIGHTS WHICH THE CHANCELLOR, WHEN HIS JURISDICTION HAS
BEEN PROPERLY INVOKED, HAS OFTEN BEEN CALLED UPON TO DECIDE.  ISSUES OF
FACT ARE RARELY EITHER "LEGAL" OR "EQUITABLE."  ALL DEPENDS UPON THE
CONTEXT IN WHICH THEY ARISE.  THE EXAMPLES CITED BY CHIEF JUDGE POPE IN
HIS THOROUGH OPINION IN THE COURT OF APPEALS IN THIS CASE ARE
ILLUSTRATIVE:  "  ...  IN A SUIT BY ONE IN POSSESSION OF REAL PROPERTY
TO QUIET TITLE, OR TO REMOVE A CLOUD ON TITLE, THE COURT OF EQUITY MAY
DETERMINE THE LEGAL TITLE.  IN A SUIT FOR SPECIFIC PERFORMANCE OF A
CONTRACT, THE COURT MAY DETERMINE THE MAKING, VALIDITY AND THE TERMS OF
THE CONTRACT INVOLVED.  IN A SUIT FOR AN INJUNCTION AGAINST TRESPASS TO
REAL PROPERTY THE COURT MAY DETERMINE THE LEGAL RIGHT OF THE PLAINTIFF
TO THE POSSESSION OF THAT PROPERTY.  CF.  POMEROY, EQUITY
JURISPRUDENCE, 5TH ED., SECS. 138-221A, 221B, 221D, 250."  252 F.2D
864, 874. 

THOUGH APPARENTLY NOT DISPUTING THESE PRINCIPLES, THE COURT HOLDS,
QUITE APART FROM ITS RELIANCE UPON THE DECLARATORY JUDGMENT ACT, THAT
BEACON BY FILING ITS COUNTERCLAIM AND CROSS-CLAIM ACQUIRED A RIGHT TO
TRIAL BY JURY OF ISSUES WHICH OTHERWISE WOULD HAVE BEEN PROPERLY
TRIABLE TO THE COURT.  SUPPORT FOR THIS POSITION IS FOUND IN THE
PRINCIPLE THAT, "IN THE FEDERAL COURTS EQUITY HAS ALWAYS ACTED ONLY
WHEN LEGAL REMEDIES WERE INADEQUATE  ...  ."  YET THAT PRINCIPLE IS NOT
EMPLOYED IN ITS TRADITIONAL SENSE AS A LIMITATION UPON THE EXERCISE OF
POWER BY A COURT OF EQUITY.  THIS IS APPARENT IN THE COURT'S
RECOGNITION THAT THE ALLEGATIONS OF THE COMPLAINT ENTITLED FOX TO
EQUITABLE RELIEF - RELIEF TO WHICH FOX WOULD NOT HAVE BEEN ENTITLED IF
IT HAD HAD AN ADEQUATE REMEDY AT LAW.  INSTEAD, THE PRINCIPLE IS
EMPLOYED TODAY TO MEAN THAT BECAUSE IT IS POSSIBLE UNDER THE
COUNTERCLAIM TO HAVE A JURY TRIAL OF THE FACTUAL ISSUE OF SUBSTANTIAL
COMPETITION, THAT ISSUE MUST BE TRIED BY A JURY, EVEN THOUGH THE ISSUE
WAS PRIMARILY PRESENTED IN THE ORIGINAL CLAIM FOR EQUITABLE RELIEF. 
THIS IS A MARKED DEPARTURE FROM LONG-SETTLED PRINCIPLES. 

IT HAS BEEN AN ESTABLISHED RULE "THAT EQUITABLE JURISDICTION EXISTING
AT THE FILING OF A BILL IS NOT DESTROYED BECAUSE AN ADEQUATE LEGAL
REMEDY MAY HAVE BECOME AVAILABLE THEREAFTER."  (FN8) AMERICAN LIFE INS.
CO. V. STEWART, 300 U.S. 203, 215.  SEE DAWSON V. KENTUCKY DISTILLERIES
CO., 255 U.S. 288, 296.  IT HAS ALSO BEEN LONG SETTLED THAT THE
DISTRICT COURT IN ITS DISCRETION MAY ORDER THE TRIAL OF A SUIT IN
EQUITY IN ADVANCE OF AN ACTION AT LAW BETWEEN THE SAME PARTIES, EVEN IF
THERE IS A FACTUAL ISSUE COMMON TO BOTH.  IN THE WORDS OF MR. JUSTICE
CARDOZO, WRITING FOR A UNANIMOUS COURT IN AMERICAN LIFE INS. CO. V.
STEWART, SUPRA: 

"A COURT HAS CONTROL OVER ITS OWN DOCKET  ...  .  IN THE EXERCISE OF
A SOUND DISCRETION IT MAY HOLD ONE LAWSUIT IN ABEYANCE TO ABIDE THE
OUTCOME OF ANOTHER, ESPECIALLY WHERE THE PARTIES AND THE ISSUES ARE THE
SAME  ...  .  IF REQUEST HAD BEEN MADE BY THE RESPONDENTS TO SUSPEND
THE SUITS IN EQUITY TILL THE OTHER CAUSES WERE DISPOSED OF, THE
DISTRICT COURT COULD HAVE CONSIDERED WHETHER JUSTICE WOULD NOT BE DONE
BY PURSUING SUCH A COURSE, THE REMEDY IN EQUITY BEING EXCEPTIONAL AND
THE OUTCOME OF NECESSITY  ...  .  THERE WOULD BE MANY CIRCUMSTANCES TO
BE WEIGHED, AS, FOR INSTANCE, THE CONDITION OF THE COURT CALENDAR,
WHETHER THE INSURER HAD BEEN PRECIPITATE OR ITS ADVERSARIES DILATORY,
AS WELL AS OTHER FACTORS.  IN THE END, BENEFIT AND HARDSHIP WOULD HAVE
TO BE SET OFF, THE ONE AGAINST THE OTHER, AND A BALANCE ASCERTAINED." 
300 U.S. 203, 215-216.  (FN9)

        III. 

THE COURT TODAY SWEEPS AWAY THESE BASIC PRINCIPLES AS "PRECEDENTS
DECIDED UNDER DISCARDED PROCEDURES."  IT SUGGESTS THAT THE FEDERAL
RULES OF CIVIL PROCEDURE HAVE SOMEHOW WORKED AN "EXPANSION OF ADEQUATE
LEGAL REMEDIES" SO AS TO OUST THE DISTRICT COURTS OF EQUITABLE
JURISDICTION, AS WELL AS TO DEPRIVE THEM OF THEIR TRADITIONAL POWER TO
CONTROL THEIR OWN DOCKETS.  BUT OBVIOUSLY THE FEDERAL RULES COULD NOT
AND DID NOT "EXPAND" THE SUBSTANTIVE LAW ONE WHIT.  (FN10) 

LIKE THE DECLARATORY JUDGMENT ACT, THE FEDERAL RULES PRESERVE
INVIOLATE THE RIGHT TO TRIAL BY JURY IN ACTIONS HISTORICALLY COGNIZABLE
AT COMMON LAW, AS UNDER THE CONSTITUTION THEY MUST.  (FN11)  THEY DO
NOT CREATE A RIGHT OF TRIAL BY JURY WHERE THAT RIGHT "DOES NOT EXIST
UNDER THE CONSTITUTION OR STATUTES OF THE UNITED STATES."  RULE 39(A). 
SINCE BEACON'S COUNTERCLAIM WAS COMPULSORY UNDER THE RULES, SEE RULE
13(A), IT IS APPARENT THAT BY FILING IT BEACON COULD NOT BE HELD TO
HAVE WAIVED ITS JURY RIGHTS.  (FN12)  COMPARE AMERICAN MILLS CO. V.
AMERICAN SURETY CO., 260 U.S. 360.  BUT NEITHER CAN THE COUNTERCLAIM BE
HELD TO HAVE TRANSFORMED FOX'S ORIGINAL COMPLAINT INTO AN ACTION AT
LAW.  (FN13)  SEE BENDIX AVIATION CORP. V. GLASS, 81 F. SUPP. 645. 

THE RULES MAKE POSSIBLE THE TRIAL OF LEGAL AND EQUITABLE CLAIMS IN
THE SAME PROCEEDING, BUT THEY EXPRESSLY AFFIRM THE POWER OF A TRIAL
JUDGE TO DETERMINE THE ORDER IN WHICH CLAIMS SHALL BE HEARD.  RULE
42(B).  CERTAINLY THE FEDERAL RULES WERE NOT INTENDED TO UNDERMINE THE
BASIC STRUCTURE OF EQUITY JURISPRUDENCE, DEVELOPED OVER THE CENTURIES
AND EXPLICITLY RECOGNIZED IN THE UNITED STATES CONSTITUTION.  (FN14) 

FOR THESE REASONS I THINK THE PETITION FOR A WRIT OF MANDAMUS SHOULD
HAVE BEEN DISMISSED. 

FN1  COMPARE BLACK V. BOYD, 248 F.2D 156, WITH BLACK V. BOYD, 251
F.2D 843. 

FN2  CF. DE GROOT V. PETERS, 124 CAL. 406; CALIFORNIA G.C. BD. V.
CALIFORNIA P. CORP., 4 CAL. APP. 2D 242, 244, 40 P.2D 846.  COMPARE
KESSLER V. ELDRED, 206 U.S. 285; INTERNATIONAL NEWS SERV. V. ASSOCIATED
PRESS, 248 U.S. 215, 236; TRUAX V. RAICH, 239 U.S. 33, 38. 

FN3  RULE 42(B) PROVIDES:  "(B)  SEPARATE TRIALS.  THE COURT IN
FURTHERANCE OF CONVENIENCE OR TO AVOID PREJUDICE MAY ORDER A SEPARATE
TRIAL OF ANY CLAIM, CROSS-CLAIM, COUNTERCLAIM, OR THIRD-PARTY CLAIM, OR
OF ANY SEPARATE ISSUE OR OF ANY NUMBER OF CLAIMS, CROSS-CLAIMS,
COUNTERCLAIMS, THIRD-PARTY CLAIMS, OR ISSUES." 

THE NOTE TO RULE 39 OF THE ADVISORY COMMITTEE ON RULES STATES THAT,
"WHEN CERTAIN OF THE ISSUES ARE TO BE TRIED BY JURY AND OTHERS BY THE
COURT, THE COURT MAY DETERMINE THE SEQUENCE IN WHICH SUCH ISSUES SHALL
BE TRIED."  THIS LANGUAGE WAS AT ONE TIME CONTAINED IN A DRAFT OF THE
RULES, BUT WAS DELETED BECAUSE "THE POWER IS ADEQUATELY GIVEN BY RULE
42(B)  ...  ."  MOORE'S FEDERAL PRACTICE (2D ED.)  SEC.  39.12, N. 8. 

SEE ALSO RULE 57, WHICH PROVIDES, INTER ALIA, THAT, "THE COURT MAY
ORDER A SPEEDY HEARING OF AN ACTION FOR A DECLARATORY JUDGMENT AND MAY
ADVANCE IT ON THE CALENDAR." 

FN4  IT IS NOT ALTOGETHER CLEAR AT THIS STAGE OF THE PROCEEDINGS
WHETHER THE EXISTENCE OF SUBSTANTIAL COMPETITION BETWEEN FOX AND BEACON
IS ACTUALLY A MATERIAL ISSUE OF FACT COMMON TO BOTH THE EQUITABLE CLAIM
AND THE COUNTERCLAIM FOR DAMAGES.  THE RESPONDENT INGENIOUSLY ARGUES
THAT DETERMINATION IN THE EQUITABLE SUIT OF THE ISSUE OF COMPETITION
BETWEEN THE THEATRES WOULD BE DETERMINATIVE OF LITTLE OR NOTHING IN THE
COUNTERCLAIM FOR DAMAGES.  "THE FACT ISSUE IN THE ACTION FOR EQUITABLE
AND DECLARATORY RELIEF IS WHETHER THE FOX WEST COAST CALIFORNIA THEATRE
AND THE PETITIONER'S DRIVE-IN ARE SUBSTANTIALLY COMPETITIVE WITH EACH
OTHER.  THE FACT ISSUE IN THE COUNTERCLAIM IS WHETHER THE CROSS
DEFENDANTS AND CO-CONSPIRATORS THEREIN NAMED CONSPIRED TOGETHER IN
RESTRAINT OF TRADE AND TO MONOPOLIZE IN THE MANNER ALLEGED IN THE
COUNTERCLAIM.  ABSENT CONSPIRACY, WHETHER OR NOT THE DISTRIBUTORS
LICENSED A SINGLE FIRST RUN PICTURE TO PETITIONER'S DRIVE-IN, BE IT IN
SUBSTANTIAL COMPETITION OR NOT IN SUBSTANTIAL COMPETITION WITH OTHER
FIRST RUN THEATRES IN THE SAN BERNARDINO AREA, PETITIONER WILL NOT HAVE
MADE OUT A CASE ON ITS COUNTERCLAIM  ...  .  IF PETITIONER ON ITS
COUNTERCLAIM SHOULD FAIL TO PROVE CONSPIRACY THE ISSUE OF COMPETITION
BETWEEN THE THEATRES IS MEANINGLESS.  IF PETITIONER ON THE OTHER HAND
SUCCEEDS IN PROVING THE ALLEGATIONS OF ITS COUNTERCLAIM, THE CONSPIRACY
TO MONOPOLIZE FIRST RUN AND TO DISCRIMINATE AGAINST THE NEW DRIVE-IN,
THE EXISTENCE OR NON-EXISTENCE OF COMPETITION BETWEEN THE THEATRES
WOULD EXCULPATE NONE OF THE ALLEGED WRONGDOERS, ALTHOUGH IF THERE WAS
AN ABSENCE OF COMPETITION BETWEEN THE DRIVE-IN AND THE OTHER FIRST RUN
THEATRES, AS PETITIONER CONTENDED IN ITS ANSWER TO THE COMPLAINT, IT
MIGHT HAVE SOME DIFFICULTY PROVING INJURY TO ITS BUSINESS." 

FN5  STATE FARM MUT. AUTO.  INS.  CO. V. MOSSEY, 195 F.2D 56;
CONNECTICUT GENERAL LIFE INS. CO. V. CANDIMAT CO., 83 F. SUPP. 1. 

FN6  DICKINSON V. GENERAL ACCIDENT F.&L. ASSUR.  CORP., 147 F.2D 396;
HARGROVE V. AMERICAN CENT. INS. CO., 125 F.2D 225; PACIFIC INDEMNITY
CO. V. MCDONALD, 107 F.2D 446. 

FN7  MOORE'S FEDERAL PRACTICE (2D ED.)  SEC.  57.31(2). 
"TRANSPOSITION OF PARTIES" WOULD PERHAPS BE A MORE ACCURATE
DESCRIPTION.  A TYPICAL SUCH CASE IS ONE IN WHICH A PLAINTIFF USES THE
DECLARATORY JUDGMENT PROCEDURE TO SEEK A DETERMINATION OF NONLIABILITY
TO A LEGAL CLAIM ASSERTED BY THE DEFENDANT.  THE DEFENDANT IN SUCH A
CASE IS, OF COURSE, ENTITLED TO A JURY TRIAL. 

FN8  THE SUGGESTION BY THE COURT THAT "THIS WAS BECAUSE THE
SUBSEQUENT LEGAL ACTION, THOUGH PROVIDING AN OPPORTUNITY TO TRY THE
CASE TO A JURY, MIGHT NOT PROTECT THE RIGHT OF THE EQUITY PLAINTIFF TO
A FAIR AND ORDERLY ADJUDICATION OF THE CONTROVERSY" IS PLAINLY
INCONSISTENT WITH MANY OF THE CASES IN WHICH THE RULE HAS BEEN
APPLIED.  SEE E.G., BEEDLE V. BENNETT, 122 U.S. 71; CLARK V. WOOSTER,
119 U.S. 322. 

FN9  IT IS ARGUABLE THAT IF A CASE FACTUALLY SIMILAR TO AMERICAN LIFE
INS. CO. V. STEWART WERE TO ARISE UNDER THE DECLARATORY JUDGMENT ACT,
THE DEFENDANT WOULD BE ENTITLED TO A JURY TRIAL.  SEE FOOTNOTE 7.  BUT
CF. 5 MOORE'S FEDERAL PRACTICE (2D ED.), P. 158. 

FN10  CONGRESSIONAL AUTHORIZATION OF THE RULES EXPRESSLY PROVIDED
THAT "SAID RULES SHALL NEITHER ABRIDGE, ENLARGE NOR MODIFY THE
SUBSTANTIVE RIGHTS OF ANY LITIGANT."  48 STAT. 1064.  SEE 28 U.S.C.
SEC. 2072. 

FN11  "IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL
EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED,
AND NO FACT TRIED BY A JURY, SHALL BE OTHERWISE RE-EXAMINED IN ANY
COURT OF THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON
LAW."  U.S. CONST., AMEND. VII.  SEE RULES 38, 39, FED. RULES CIV.
PROC. 

FN12  THIS IS NOT, OF COURSE, TO SUGGEST THAT THE FILING OF A
PERMISSIVE "LEGAL" COUNTERCLAIM TO AN "EQUITABLE" COMPLAINT WOULD
AMOUNT TO A WAIVER OF JURY RIGHTS ON THE ISSUES RAISED BY THE
COUNTERCLAIM. 

FN13  DETERMINATION OF WHETHER A CLAIM STATED BY THE COMPLAINT IS
TRIABLE BY THE COURT OR BY A JURY WILL NORMALLY NOT BE DEPENDENT UPON
THE "LEGAL" OR "EQUITABLE" CHARACTER OF THE COUNTERCLAIM.  SEE
BORCHARD, DECLARATORY JUDGMENTS (2D ED.), P. 404.  THERE ARE
SITUATIONS, HOWEVER, SUCH AS A CASE IN WHICH THE PLAINTIFF SEEKS A
DECLARATION OF INVALIDITY OR NONINFRINGEMENT OF A PATENT, IN WHICH THE
RELIEF SOUGHT BY THE COUNTERCLAIM WILL DETERMINE THE NATURE OF THE
ENTIRE CASE.  SEE MOORE'S FEDERAL PRACTICE (2D ED.)  SEC.  38.29. 

FN14  "THE JUDICIAL POWER SHALL EXTEND TO ALL CASES, IN LAW AND
EQUITY  ...  ."  ART. III, SEC. 2. 
..END :












BIBB V. NAVAJO FREIGHT LINES, INC. 359 U.S. 520 


NO. 94.  ARGUED MARCH 30-31, 1959 - DECIDED MAY 25, 1959 - 159 F. SUPP.
385, AFFIRMED. 


AS APPLIED TO INTERSTATE MOTOR CARRIERS OPERATING UNDER CERTIFICATES
OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE INTERSTATE COMMERCE
COMMISSION, THE ILLINOIS STATUTE HERE INVOLVED, WHICH REQUIRES TRUCKS
AND TRAILERS OPERATING ON THAT STATE'S HIGHWAYS TO BE EQUIPPED WITH A
SPECIFIED TYPE OF REAR FENDER MUDGUARD WHICH WOULD BE ILLEGAL IN
ARKANSAS, WHICH IS DIFFERENT FROM THOSE PERMITTED IN AT LEAST 45 OTHER
STATES, AND WHICH WOULD SERIOUSLY INTERFERE WITH THE "INTERLINE"
OPERATIONS OF MOTOR CARRIERS, IS INVALID BECAUSE IT UNDULY AND
UNREASONABLY BURDENS INTERSTATE COMMERCE IN VIOLATION OF ART. I, SEC. 8
OF THE CONSTITUTION.  PP. 521-530. 

(A)  EVEN STATE SAFETY REGULATIONS MUST YIELD WHEN THEY RUN AFOUL OF
THE POLICY OF FREE TRADE REFLECTED IN THE COMMERCE CLAUSE.  PP. 523
524, 528-529. 

(B)  INTERCHANGING MUDGUARDS ON TRUCKS AND TRAILERS AT THE BORDER OF
ILLINOIS IS A TIME-CONSUMING TASK; AND THE NECESSITY TO USE WELDING
MIGHT MEAN THAT SOME TRUCKS OR TRAILERS WOULD HAVE TO BE UNLOADED AND
LOADED AGAIN - ALL OF WHICH ADDS UP TO A SERIOUS BURDEN ON INTERSTATE
COMMERCE NOT JUSTIFIED BY A COMPELLING NEED FOR THIS NEW SAFETY
MEASURE.  PP. 527-528. 

(C)  THE RECORD IN THIS CASE SHOWS THAT THIS IS ONE OF THOSE
EXCEPTIONAL CASES WHERE A STATE SAFETY REGULATION IN THE EXERCISE OF
THE POLICE POWER PLACES SUCH A HEAVY BURDEN ON INTERSTATE COMMERCE,
UNCOMPENSATED BY COMPELLING ADVANTAGES OF SAFETY, THAT IT VIOLATES THE
COMMERCE CLAUSE.  PP. 529-530. 

BIBB, DIRECTOR, DEPARTMENT OF PUBLIC SAFETY OF ILLINOIS, ET AL. V.
NAVAJO FREIGHT LINES, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED IN THIS CASE TO HOLD THAT AN ILLINOIS STATUTE (FN1)
REQUIRING THE USE OF A CERTAIN TYPE OF REAR FENDER MUDGUARD ON TRUCKS
AND TRAILERS OPERATED ON THE HIGHWAYS OF THAT STATE CONFLICTS WITH THE
COMMERCE CLAUSE OF THE CONSTITUTION.  THE STATUTORY SPECIFICATION FOR
THIS TYPE OF MUDGUARD PROVIDES THAT THE GUARD SHALL CONTOUR THE REAR
WHEEL, WITH THE INSIDE SURFACE BEING RELATIVELY PARALLEL TO THE TOP 90
DEGREES OF THE REAR 180 DEGREES OF THE WHOLE SURFACE.  (FN2)  THE
SURFACE OF THE GUARD MUST EXTEND DOWNWARD TO WITHIN 10 INCHES FROM THE
GROUND WHEN THE TRUCK IS LOADED TO ITS MAXIMUM LEGAL CAPACITY.  THE
GUARDS MUST BE WIDE ENOUGH TO COVER THE WIDTH OF THE PROTECTED TIRE,
MUST BE INSTALLED NOT MORE THAN 6 INCHES FROM THE TIRE SURFACE WHEN THE
VEHICLE IS LOADED TO MAXIMUM CAPACITY, AND MUST HAVE A LIP OR FLANGE ON
ITS OUTER EDGE OF NOT LESS THAN 2 INCHES.  (FN3) 

APPELLEES, INTERSTATE MOTOR CARRIERS HOLDING CERTIFICATES FROM THE
INTERSTATE COMMERCE COMMISSION, CHALLENGED THE CONSTITUTIONALITY OF THE
ILLINOIS ACT.  A SPECIFICALLY CONSTITUTED THREE-JUDGE DISTRICT COURT
CONCLUDED THAT IT UNDULY AND UNREASONABLY BURDENED AND OBSTRUCTED
INTERSTATE COMMERCE, BECAUSE IT MADE THE CONVENTIONAL OR STRAIGHT
MUDFLAP, WHICH IS LEGAL IN AT LEAST 45 STATES, ILLEGAL IN ILLINOIS, AND
BECAUSE THE STATUTE, TAKEN TOGETHER WITH A RULE OF THE ARKANSAS
COMMERCE COMMISSION (FN4) REQUIRING STRAIGHT MUDFLAPS, RENDERED THE USE
OF THE SAME MOTOR VEHICLE EQUIPMENT IN BOTH STATES IMPOSSIBLE.  THE
STATUTE WAS DECLARED TO BE VIOLATIVE OF THE COMMERCE CLAUSE AND
APPELLANTS WERE ENJOINED FROM ENFORCING IT.  159 F. SUPP. 385.  AN
APPEAL WAS TAKEN AND WE NOTED PROBABLE JURISDICTION.  358 U.S. 808. 

THE POWER OF THE STATE TO REGULATE THE USE OF ITS HIGHWAYS IS BROAD
AND PERVASIVE.  WE HAVE RECOGNIZED THE PECULIARLY LOCAL NATURE OF THIS
SUBJECT OF SAFETY, AND HAVE UPHELD STATE STATUTES APPLICABLE ALIKE TO
INTERSTATE AND INTRASTATE COMMERCE, DESPITE THE FACT THAT THEY MAY HAVE
AN IMPACT ON INTERSTATE COMMERCE.  SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177; MAURER V. HAMILTON, 309 U.S. 598; SPROLES
V. BINFORD, 286 U.S. 374.  THE REGULATION OF HIGHWAYS "IS AKIN TO
QUARANTINE MEASURES, GAME LAWS, AND LIKE LOCAL REGULATIONS OF RIVERS,
HARBORS, PIERS, AND DOCKS, WITH RESPECT TO WHICH THE STATE HAS
EXCEPTIONAL SCOPE FOR THE EXERCISE OF ITS REGULATORY POWER, AND WHICH,
CONGRESS NOT ACTING HAVE BEEN SUSTAINED EVEN THOUGH THEY MATERIALLY
INTERFERE WITH INTERSTATE COMMERCE."  SOUTHERN PACIFIC CO. V. ARIZONA,
325 U.S. 761, 783. 

THESE SAFETY MEASURES CARRY A STRONG PRESUMPTION OF VALIDITY WHEN
CHALLENGED IN COURT.  IF THERE ARE ALTERNATIVE WAYS OF SOLVING A
PROBLEM, WE DO NOT SIT TO DETERMINE WHICH OF THEM IS BEST SUITED TO
ACHIEVE A VALID STATE OBJECTIVE.  POLICY DECISIONS ARE FOR THE STATE
LEGISLATURE, ABSENT FEDERAL ENTRY INTO THE FIELD.  (FN5)  UNLESS WE CAN
CONCLUDE ON THE WHOLE RECORD THAT "THE TOTAL EFFECT OF THE LAW AS A
SAFETY MEASURE IN REDUCING ACCIDENTS AND CASUALTIES IS SO SLIGHT OR
PROBLEMATICAL AS NOT TO OUTWEIGH THE NATIONAL INTEREST IN KEEPING
INTERSTATE COMMERCE FREE FROM INTERFERENCES WHICH SERIOUSLY IMPEDE IT"
(SOUTHERN PACIFIC CO. V. ARIZONA, SUPRA, PP. 775-776) WE MUST UPHOLD
THE STATUTE. 

THE DISTRICT COURT FOUND THAT "SINCE IT IS IMPOSSIBLE FOR A CARRIER
OPERATING IN INTERSTATE COMMERCE TO DETERMINE WHICH OF ITS EQUIPMENT
WILL BE USED IN A PARTICULAR AREA, OR ON A PARTICULAR DAY, OR DAYS,
CARRIERS OPERATING INTO OR THROUGH ILLINOIS  ...  WILL BE REQUIRED TO
EQUIP ALL THEIR TRAILERS IN ACCORDANCE WITH THE REQUIREMENTS OF THE
ILLINOIS SPLASH GUARD STATUTE."  WITH TWO POSSIBLE EXCEPTIONS THE
MUDFLAPS REQUIRED IN THOSE STATES WHICH HAVE MUDGUARD REGULATIONS WOULD
NOT MEET THE STANDARDS REQUIRED BY THE ILLINOIS STATUTE.  THE COST OF
INSTALLING THE CONTOUR MUDGUARDS IS $30 OR MORE PER VEHICLE.  THE
DISTRICT COURT FOUND THAT THE INITIAL COST OF INSTALLING THOSE
MUDGUARDS ON ALL THE TRUCKS OWNED BY THE APPELLEES RANGED FROM $4,500
TO $45,840.  THERE WAS ALSO EVIDENCE IN THE RECORD TO INDICATE THAT THE
COST OF MAINTENANCE AND REPLACEMENT OF THESE GUARDS IS SUBSTANTIAL. 

ILLINOIS INTRODUCED EVIDENCE SEEKING TO ESTABLISH THAT CONTOUR
MUDGUARDS HAD A DECIDED SAFETY FACTOR IN THAT THEY PREVENTED THE
THROWING OF DEBRIS INTO THE FACES OF DRIVERS OF PASSING CARS AND INTO
THE WINDSHIELDS OF A FOLLOWING VEHICLE.  BUT THE DISTRICT COURT IN ITS
OPINION STATED THAT IT WAS "CONCLUSIVELY SHOWN THAT THE CONTOUR MUD
FLAP POSSESSES NO ADVANTAGES OVER THE CONVENTIONAL OR STRAIGHT MUD FLAP
PREVIOUSLY REQUIRED IN ILLINOIS AND PRESENTLY REQUIRED IN MOST OF THE
STATES" (159 F. SUPP., AT 388) AND THAT "THERE IS RATHER CONVINCING
TESTIMONY THAT USE OF THE CONTOUR FLAP CREATES HAZARDS PREVIOUSLY
UNKNOWN TO THOSE USING THE HIGHWAYS."  ID., AT 390.  THESE HAZARDS WERE
FOUND TO BE OCCASIONED BY THE FACT THAT THIS NEW TYPE OF MUDGUARD
TENDED TO CAUSE AN ACCUMULATION OF HEAT IN THE BRAKE DRUM, THUS
DECREASING THE EFFECTIVENESS OF BRAKES, AND BY THE FACT THAT THEY WERE
SUSCEPTIBLE OF BEING HIT AND BUMPED WHEN THE TRUCKS WERE BACKED UP AND
OF FALLING OFF ON THE HIGHWAY. 

THESE FINDINGS ON COST AND ON SAFETY ARE NOT THE END OF OUR PROBLEM. 
LOCAL REGULATION OF THE WEIGHT OF TRUCKS USING THE HIGHWAYS UPHELD IN
SPROLES V. BINFORD, SUPRA, ALSO INVOLVED INCREASED FINANCIAL BURDENS
FOR INTERSTATE CARRIERS.  STATE CONTROL OF THE WIDTH AND WEIGHT OF
MOTOR TRUCKS AND TRAILERS SUSTAINED IN SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., SUPRA, INVOLVED NICE QUESTIONS OF JUDGMENT CONCERNING
THE NEED OF THOSE REGULATIONS SO FAR AS THE ISSUE OF SAFETY WAS
CONCERNED.  THAT CASE ALSO PRESENTED THE PROBLEM WHETHER INTERSTATE
MOTOR CARRIERS, WHO WERE REQUIRED TO REPLACE ALL EQUIPMENT OR KEEP OUT
OF THE STATE, SUFFERED AN UNCONSTITUTIONAL RESTRAINT ON INTERSTATE
COMMERCE.  THE MATTER OF SAFETY WAS SAID TO BE ONE ESSENTIALLY FOR THE
LEGISLATIVE JUDGMENT; AND THE BURDEN OF REDESIGNING OR REPLACING
EQUIPMENT WAS SAID TO BE A PROPER PRICE TO EXACT FROM INTERSTATE AND
INTRASTATE MOTOR CARRIERS ALIKE.  AND THE SAME CONCLUSION WAS REACHED
IN MAURER V. HAMILTON, SUPRA, WHERE A STATE LAW PROHIBITED ANY MOTOR
CARRIER FROM CARRYING ANY OTHER VEHICLE ABOVE THE CAB OF THE CARRIER
VEHICLE OR OVER THE HEAD OF THE OPERATOR OF THAT VEHICLE.  COST TAKEN
INTO CONSIDERATION WITH OTHER FACTORS MIGHT BE RELEVANT IN SOME CASES
TO BE THE ISSUE OF BURDEN ON COMMERCE.  BUT IT HAS ASSUMED NO SUCH
PROPORTIONS HERE.  IF WE HAD HERE ONLY A QUESTION WHETHER THE COST OF
ADJUSTING AN INTERSTATE OPERATION TO THESE NEW LOCAL SAFETY REGULATIONS
PRESCRIBED BY ILLINOIS UNDULY BURDENED INTERSTATE COMMERCE, WE WOULD
HAVE TO SUSTAIN THE LAW UNDER THE AUTHORITY OF THE SPROLES, BARNWELL,
AND MAURER CASES.  THE SAME RESULT WOULD OBTAIN IF WE HAD TO RESOLVE
THE MUCH DISCUSSED ISSUES OF SAFETY PRESENTED IN THIS CASE. 

THIS CASE PRESENTS A DIFFERENT ISSUE.  THE EQUIPMENT IN THE SPROLES,
BARNWELL, AND MAURER CASES COULD PASS MUSTER IN ANY STATE, SO FAR AS
THE RECORDS IN THOSE CASES REVEAL.  WE WERE NOT FACED THERE WITH THE
QUESTION WHETHER ONE STATE COULD PRESCRIBE STANDARDS FOR INTERSTATE
CARRIERS THAT WOULD CONFLICT WITH THE STANDARDS OF ANOTHER STATE,
MAKING IT NECESSARY, SAY, FOR AN INTERSTATE CARRIER TO SHIFT ITS CARGO
TO DIFFERENTLY DESIGNED VEHICLES ONCE ANOTHER STATE LINE WAS REACHED. 
WE HAD A RELATED PROBLEM IN SOUTHERN PACIFIC CO. V. ARIZONA, SUPRA,
WHERE THE COURT INVALIDATED A STATUTE OF ARIZONA PRESCRIBING A MAXIMUM
LENGTH OF 70 CARS FOR FREIGHT TRAINS MOVING THROUGH THAT STATE.  MORE
CLOSELY IN POINT IS MORGAN V. VIRGINIA, 328 U.S. 373, WHERE A LOCAL LAW
REQUIRED A RESEATING OF PASSENGERS ON INTERSTATE BUSSES ENTERING
VIRGINIA IN ORDER TO COMPLY WITH A LOCAL SEGREGATION LAW.  DIVERSE
SEATING ARRANGEMENTS FOR PEOPLE OF DIFFERENT RACES IMPOSED BY SEVERAL
STATES INTERFERED, WE CONCLUDED, WITH "THE NEED FOR NATIONAL UNIFORMITY
IN THE REGULATIONS FOR INTERSTATE TRAVEL."  ID., AT 386.  THOSE CASES
INDICATE THE DIMENSIONS OF OUR PRESENT PROBLEM. 

AN ORDER OF THE ARKANSAS COMMERCE COMMISSION, ALREADY MENTIONED,
(FN6) REQUIRES THAT TRAILERS OPERATING IN THAT STATE BE EQUIPPED WITH
STRAIGHT OR CONVENTIONAL MUDFLAPS.  VEHICLES EQUIPPED TO MEET THE
STANDARDS OF THE ILLINOIS STATUTE WOULD NOT COMPLY WITH ARKANSAS
STANDARDS, AND VICE VERSA.   THUS IF A TRAILER IS TO BE OPERATED IN
BOTH STATES, MUDGUARDS WOULD HAVE TO BE INTERCHANGED, CAUSING A
SIGNIFICANT DELAY IN AN OPERATION WHERE PROMPT MOVEMENT MAY BE OF THE
ESSENCE.  IT WAS FOUND THAT FROM TWO TO FOUR HOURS OF LABOR ARE
REQUIRED TO INSTALL OR REMOVE A CONTOUR MUDGUARD.  MOREOVER, THE
CONTOUR GUARD IS ATTACHED TO THE TRAILER BY WELDING AND IF THE TRAILER
IS CONVEYING A CARGO OF EXPLOSIVES (E.G., FOR THE UNITED STATES
GOVERNMENT) IT WOULD BE EXCEEDINGLY DANGEROUS TO ATTEMPT TO WELD ON A
CONTOUR MUDGUARD WITHOUT UNLOADING THE TRAILER. 

IT WAS ALSO FOUND THAT THE ILLINOIS STATUTE SERIOUSLY INTERFERES WITH
THE "INTERLINE" OPERATIONS OF MOTOR CARRIERS - THAT IS TO SAY, WITH THE
INTERCHANGING OF TRAILERS BETWEEN AN ORIGINATING CARRIER AND ANOTHER
CARRIER WHEN THE LATTER SERVES AN AREA NOT SERVED BY THE FORMER.  THESE
"INTERLINE" OPERATIONS PROVIDE A SPEEDY THROUGH-SERVICE FOR THE
SHIPPER.  INTERLINING CONTEMPLATES THE PHYSICAL TRANSFER OF THE ENTIRE
TRAILER; THERE IS NO UNLOADING AND RELOADING OF THE CARGO.  THE
INTERLINING PROCESS IS PARTICULARLY VITAL IN CONNECTION WITH SHIPMENT
OF PERISHABLES, WHICH WOULD SPOIL IF UNLOADED BEFORE REACHING THEIR
DESTINATION, OR WITH THE MOVEMENT OF EXPLOSIVES CARRIED UNDER SEAL.  OF
COURSE, IF THE ORIGINATING CARRIER NEVER OPERATED IN ILLINOIS, IT WOULD
NOT BE EXPECTED TO EQUIP ITS TRAILERS WITH CONTOUR MUDGUARDS.  YET IF
AN INTERCHANGED TRAILER OF THAT CARRIER WERE HAULED TO OR THROUGH
ILLINOIS, THE STATUTE WOULD REQUIRE THAT IT CONTAIN CONTOUR GUARDS. 
SINCE CARRIERS WHICH OPERATE IN AND THROUGH ILLINOIS CANNOT COMPEL THE
ORIGINATING CARRIERS TO EQUIP THEIR TRAILERS WITH CONTOUR GUARDS, THEY
MAY BE FORCED TO CEASE INTERLINING WITH THOSE WHO DO NOT MEET THE
ILLINOIS REQUIREMENTS.  OVER 60 PERCENT OF THE BUSINESS OF 5 OF THE 6
PLAINTIFFS IS INTERLINE TRAFFIC.  FOR THE OTHER IT CONSTITUTES 30
PERCENT.  ALL OF THE PLAINTIFFS OPERATE EXTENSIVELY IN INTERSTATE
COMMERCE, AND THE ANNUAL MILEAGE IN ILLINOIS OF NONE OF THEM EXCEEDS 7
PERCENT OF TOTAL MILEAGE. 

THIS IN SUMMARY IS THE RATHER MASSIVE SHOWING OF BURDEN ON INTERSTATE
COMMERCE WHICH APPELLEES MADE AT THE HEARING. 

APPELLANTS DID NOT ATTEMPT TO REBUT THE APPELLEES' SHOWING THAT THE
STATUTE IN QUESTION SEVERELY BURDENS INTERSTATE COMMERCE.  APPELLANTS'
SHOWING WAS AIMED AT ESTABLISHING THAT CONTOUR MUDGUARDS PREVENTED THE
THROWING OF DEBRIS INTO THE FACES OF DRIVERS OF PASSING CARS AND INTO
THE WINDSHIELDS OF A FOLLOWING VEHICLE.  THEY CONCLUDE THAT, BECAUSE
THE ILLINOIS STATUTE IS A REASONABLE EXERCISE OF THE POLICE POWER, A
FEDERAL COURT IS PRECLUDED FROM WEIGHING THE RELATIVE MERITS OF THE
CONTOUR MUDGUARD AGAINST ANY OTHER KIND OF MUDGUARD AND MUST SUSTAIN
THE VALIDITY OF THE STATUTE NOTWITHSTANDING THE EXTENT OF THE BURDEN IT
IMPOSES ON INTERSTATE COMMERCE.  THEY RELY IN THE MAIN ON SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., SUPRA.  THERE IS LANGUAGE IN
THAT OPINION WHICH, READ IN ISOLATION FROM SUCH LATER DECISIONS AS
SOUTHERN PACIFIC CO. V. ARIZONA, SUPRA, AND MORGAN V. VIRGINIA, SUPRA,
WOULD SUGGEST THAT NO SHOWING OF BURDEN ON INTERSTATE COMMERCE IS
SUFFICIENT TO INVALIDATE LOCAL SAFETY REGULATIONS IN ABSENCE OF SOME
ELEMENT OF DISCRIMINATION AGAINST INTERSTATE COMMERCE. 

THE VARIOUS EXERCISES BY THE STATES OF THEIR POLICE POWER STAND,
HOWEVER, ON AN EQUAL FOOTING.  ALL ARE ENTITLED TO THE SAME PRESUMPTION
OF VALIDITY WHEN CHALLENGED UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  LINCOLN UNION V. NORTHWESTERN CO., 335 U.S. 525;
DAY-BRITE LIGHTING, INC., V. MISSOURI, 342 U.S. 421; WILLIAMSON V. LEE
OPTICAL CO., 348 U.S. 483.  SIMILARLY THE VARIOUS STATE REGULATORY
STATUTES ARE OF EQUAL DIGNITY WHEN MEASURED AGAINST THE COMMERCE
CLAUSE.  LOCAL REGULATIONS WHICH WOULD PASS MUSTER UNDER THE DUE
PROCESS CLAUSE MIGHT NONETHELESS FAIL TO SURVIVE OTHER CHALLENGES TO
CONSTITUTIONALITY THAT BRING THE SUPREMACY CLAUSE INTO PLAY.  LIKE ANY
LOCAL LAW THAT CONFLICTS WITH FEDERAL REGULATORY MEASURES.  (CALIFORNIA
COMM'N V. UNITED STATES, 355 U.S. 534; SERVICE STORAGE & TRANSFER CO.
V. VIRGINIA, 359 U.S. 171), STATE REGULATIONS THAT RUN AFOUL OF THE
POLICY OF FREE TRADE REFLECTED IN THE COMMERCE CLAUSE MUST ALSO BOW. 

THIS IS ONE OF THOSE CASES - FEW IN NUMBER - WHERE LOCAL SAFETY
MEASURES THAT ARE NONDISCRIMINATORY PLACE AN UNCONSTITUTIONAL BURDEN ON
INTERSTATE COMMERCE.  THIS CONCLUSION IS ESPECIALLY UNDERLINED BY THE
DELETERIOUS EFFECT WHICH THE ILLINOIS LAW WILL HAVE ON THE "INTERLINE"
OPERATION OF INTERSTATE MOTOR CARRIERS.  THE CONFLICT BETWEEN THE
ARKANSAS REGULATION AND THE ILLINOIS REGULATION ALSO SUGGESTS THAT THIS
REGULATION OF MUDGUARDS IS NOT ONE OF THOSE MATTERS "ADMITTING OF
DIVERSITY OF TREATMENT, ACCORDING TO THE SPECIAL REQUIREMENTS OF LOCAL
CONDITIONS," TO USE THE WORDS OF CHIEF JUSTICE HUGHES IN SPROLES V.
BINFORD, SUPRA, AT 390.  A STATE WHICH INSISTS ON A DESIGN OUT OF LINE
WITH THE REQUIREMENTS OF ALMOST ALL THE OTHER STATES MAY SOMETIMES
PLACE A GREAT BURDEN OF DELAY AND INCONVENIENCE ON THOSE INTERSTATE
MOTOR CARRIERS ENTERING OR CROSSING ITS TERRITORY.  SUCH A NEW SAFETY
DEVICE - OUT OF LINE WITH THE REQUIREMENTS OF THE OTHER STATES - MAY BE
SO COMPELLING THAT THE INNOVATING STATE NEED NOT BE THE ONE TO GIVE
WAY.  BUT THE PRESENT SHOWING - BALANCED AGAINST THE CLEAR BURDEN ON
COMMERCE - IS FAR TOO INCONCLUSIVE TO MAKE THIS MUDGUARD MEET THAT
TEST. 

WE DEAL NOT WITH ABSOLUTES BUT WITH QUESTIONS OF DEGREE.  THE STATE
LEGISLATURES PLAINLY HAVE GREAT LEEWAY IN PROVIDING SAFETY REGULATIONS
FOR ALL VEHICLES - INTERSTATE AS WELL AS LOCAL.  OUR DECISIONS SO
HOLD.  YET THE HEAVY BURDEN WHICH THE ILLINOIS MUDGUARD LAW PLACES ON
THE INTERSTATE MOVEMENT OF TRUCKS AND TRAILERS SEEMS TO US TO PASS THE
PERMISSIBLE LIMITS EVEN FOR SAFETY REGULATIONS.  AFFIRMED. 

FN1  THE STATE STATUTE (EFFECTIVE JULY 8, 1957) IN RELEVANT PART
PROVIDES: 

"IT IS UNLAWFUL FOR ANY PERSON TO OPERATE ANY MOTOR VEHICLE OF THE
SECOND DIVISION UPON THE HIGHWAYS OF THIS STATE OUTSIDE THE CORPORATE
LIMITS OF A CITY, VILLAGE OR INCORPORATED TOWN UNLESS SUCH VEHICLE IS
EQUIPPED WITH REAR FENDER SPLASH GUARDS WHICH SHALL COMPLY WITH THE
SPECIFICATIONS HEREINAFTER PROVIDED IN THIS SECTION; EXCEPT THAT ANY
MOTOR VEHICLE OF THE SECOND DIVISION WHICH IS OR HAS BEEN PURCHASED,
NEW OR USED, PRIOR TO AUGUST 1, 1957 SHALL BE EQUIPPED WITH REAR FENDER
SPLASH GUARDS WHICH ARE SO ATTACHED AS TO PREVENT THE SPLASHING OF MUD
OR WATER UPON THE WINDSHIELD OF OTHER MOTOR VEHICLES AND SUCH SPLASH
GUARDS ON SUCH VEHICLE SHALL NOT BE REQUIRED TO COMPLY WITH THE
SPECIFICATIONS HEREINAFTER PROVIDED IN THIS SECTION UNTIL JANUARY 1,
1958. 

"THE REAR FENDER SPLASH GUARDS SHALL CONTOUR THE WHEEL IN SUCH A
MANNER THAT THE RELATIONSHIP OF THE INSIDE SURFACE OF ANY SUCH SPLASH
GUARD TO THE TREAD SURFACE OF THE TIRE OR WHEEL SHALL BE RELATIVELY
PARALLEL, BOTH LATERALLY OR ACROSS THE WHEEL, AT LEAST THROUGHOUT THE
TOP 90 DEGREES OF THE REAR 180 DEGREES OF THE WHEEL SURFACE; PROVIDED
HOWEVER, ON VEHICLES WHICH HAVE A CLEARANCE OF LESS THAN 5 INCHES
BETWEEN THE TOP OF THE TIRE OR WHEEL AND THAT PART OF THE BODY OF THE
VEHICLE DIRECTLY ABOVE THE TIRE OR WHEEL WHEN THE VEHICLE IS LOADED TO
MAXIMUM LEGAL CAPACITY, THE CURVED PORTION OF THE SPLASH GUARD NEED
ONLY EXTEND FROM A POINT DIRECTLY BEHIND THE CENTER OF THE REAR AXLE
AND TO THE REAR OF THE WHEEL SURFACE UPWARDS TO WITHIN AT LEAST 2
INCHES OF THE BOTTOM LINE OF THE BODY WHEN THE VEHICLE IS LOADED TO
MAXIMUM LEGAL CAPACITY.  ON ALL VEHICLES TO WHICH THIS SECTION APPLIES,
THERE SHALL BE A DOWNWARD EXTENSION OF THE CURVED SURFACE WHICH SHALL
END NOT MORE THAN 10 INCHES FROM THE GROUND WHEN THE VEHICLE IS LOADED
TO MAXIMUM LEGAL CAPACITY.  THIS DOWNWARD EXTENSION SHALL BE PART OF
THE CURVED SURFACE OR ATTACHED DIRECTLY TO SAID CURVED SURFACE, BUT IT
NEED NOT CONTOUR THE WHEEL. 

"THE SPLASH GUARDS SHALL BE WIDE ENOUGH TO COVER THE FULL TREAD OR
TREADS OF THE TIRES BEING PROTECTED AND SHALL BE INSTALLED NOT MORE
THAN 6 INCHES FROM THE TREAD SURFACE OF THE TIRE OR WHEEL WHEN THE
VEHICLE IS LOADED TO MAXIMUM LEGAL CAPACITY.  THE SPLASH GUARD SHALL
HAVE A LIP OR FLANGE ON ITS OUTSIDE EDGE TO MINIMIZE SIDE THROW AND
SPLASH.  THE LIP OR FLANGE SHALL EXTEND TOWARD THE CENTER OF THE WHEEL,
AND SHALL BE PERPENDICULAR TO AND EXTEND NOT LESS THAN 2 INCHES BELOW
THE INSIDE OR BOTTOM SURFACE LINE OR PLANE OF THE GUARD. 

"THE SPLASH GUARDS MAY BE CONSTRUCTED OF A RIGID OR FLEXIBLE
MATERIAL, BUT SHALL BE ATTACHED IN SUCH A MANNER THAT, REGARDLESS OF
MOVEMENT, EITHER BY THE SPLASH GUARDS OR THE VEHICLE, THE SPLASH GUARDS
WILL RETAIN THEIR GENERAL PARALLEL RELATIONSHIP TO THE TREAD SURFACE OF
THE TIRE OR WHEEL UNDER ALL ORDINARY OPERATING CONDITIONS."  ILL. REV.
STAT., 1957, C. 95 1/2, SEC. 218B. 

MOTOR VEHICLES OF THE SECOND DIVISION ARE DEFINED AS "THOSE VEHICLES
WHICH ARE DESIGNED AND USED FOR PULLING OR CARRYING FREIGHT AND ALSO
THOSE VEHICLES OR MOTOR CARS WHICH ARE DESIGNED AND USED FOR THE
CARRYING OF MORE THAN SEVEN PERSONS."  ILL. REV. STAT., 1957, C. 95
1/2, SEC. 99(B). 

FN2  THE SPECIFICATIONS ARE SOMEWHAT MODIFIED IF THE CLEARANCE
BETWEEN THE TOP OF THE TIRE AND THE BODY OF THE VEHICLE DIRECTLY ABOVE
IT IS LESS THAN 5 INCHES WHEN THE VEHICLE IS LOADED TO ITS MAXIMUM
LEGAL CAPACITY. 

FN3  THERE ARE CERTAIN EXEMPTIONS FROM THE STATUTE, BUT THEIR
VALIDITY OR THE VALIDITY OF THE STATUTE IN LIGHT OF THEM IS NOT
QUESTIONED HERE.  BUT SEE RUDOLPH EXPRESS CO. V. BIBB, 15 ILL. 2D 76,
153 N.E.2D 820.  NO CONTENTION IS HERE MADE THAT THE STATUTE
DISCRIMINATES AGAINST INTERSTATE COMMERCE, AND IT IS CLEAR THAT ITS
PROVISIONS APPLY ALIKE TO VEHICLES IN INTRASTATE AS WELL AS IN
INTERSTATE COMMERCE.  NOR IS IT CONTENDED THAT THE STATUTE VIOLATES THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  CF. PEOPLE V. WARREN,
11 ILL. 2D 420, 143 N.E.2D 28. 

FN4  ARKANSAS COMMERCE COMMISSION RULE 100, DECEMBER 13, 1957. 

FN5  IT IS NOT ARGUED THAT THERE HAS BEEN A PRE-EMPTION OF THE FIELD
BY FEDERAL REGULATION.  WHILE THE INTERSTATE COMMERCE COMMISSION HAS,
PURSUANT TO SEC. 204(A) OF THE INTERSTATE COMMERCE ACT (49 STAT. 546,
49 U.S.C. SEC. 304(A)), PROMULGATED ITS MOTOR CARRIER SAFETY
REGULATIONS TO GOVERN VEHICLES OPERATING IN INTERSTATE OR FOREIGN
COMMERCE (SEE 49 CFR, PTS.  190-197), IT HAS EXPRESSLY DECLINED TO
ESTABLISH ANY REQUIREMENTS CONCERNING WHEEL FLAPS, AND HAS DISCLAIMED
ANY INTENTION TO OCCUPY THE FIELD OR ABROGATE STATE REGULATIONS NOT
INCONSISTENT WITH ITS STANDARDS.  54 M.C.C. 337, 354, 358. 

FN6  NOTE 4, SUPRA. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, CONCURRING. 

THE OPINION OF THE COURT CLEARLY DEMONSTRATES THE HEAVY BURDEN, IN
TERMS OF COST AND INTERFERENCE WITH "INTERLINING," WHICH THE ILLINOIS
STATUTE HERE INVOLVED IMPOSES ON INTERSTATE COMMERCE.  IN VIEW OF THE
FINDINGS OF THE DISTRICT COURT, SUMMARIZED ON PAGE 525 OF THE COURT'S
OPINION AND FULLY JUSTIFIED BY THE RECORD, TO THE EFFECT THAT THE
CONTOUR MUDFLAP "POSSESSES NO ADVANTAGES" IN TERMS OF SAFETY OVER THE
CONVENTIONAL FLAP PERMITTED IN ALL OTHER STATES, AND INDEED CREATES
CERTAIN SAFETY HAZARDS, THIS HEAVY BURDEN CANNOT BE JUSTIFIED ON THE
THEORY THAT THE ILLINOIS STATUTE IS A NECESSARY, APPROPRIATE, OR
HELPFUL LOCAL SAFETY MEASURE.  ACCORDINGLY, I CONCUR IN THE JUDGMENT OF
THE COURT. 
..END :
















CROWN ZELLERBACH CORP. V. WASHINGTON 359 U.S. 531 


NO. 805.  DECIDED MAY 25, 1959 - APPEAL DISMISSED AND CERTIORARI DENIED
REPORTED BELOW: 53 WASH. 2D 813, 328 P.2D 884. 


CROWN ZELLERBACH CORP. V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :













SOUTHERN PACIFIC CO. V. CORPORATION COMMISSION OF ARIZONA 359 U.S. 532 


NO. 763.  DECIDED MAY 25, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  84 ARIZ. 365, 329 P.2D
883. 


SOUTHERN PACIFIC CO. V. CORPORATION COMMISSION OF ARIZONA ET AL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















RODGERS V. UTAH 359 U.S. 532 


NO. 695, MISC.  DECIDED MAY 25, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  8 UTAH 2D 156, 329 P.2D
1075. 


RODGERS V. UTAH. 

APPEAL FROM THE SUPREME COURT OF UTAH. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















STATE ATHLETIC COMMISSION V. DORSEY 359 U.S. 533 


NO. 787.  DECIDED MAY 25, 1959 - 168 F. SUPP. 149, AFFIRMED. 


STATE ATHLETIC COMMISSION V. DORSEY. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















IN RE SARNER 359 U.S. 533 


NO. 803.  DECIDED MAY 25, 1959 - APPEAL DISMISSED AND CERTIORARI DENIED
REPORTED BELOW: 28 N.J. 519, 147 A.2D 244. 


IN RE SARNER. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















LAMAR BATH HOUSE CO. V. CITY OF HOT SPRINGS 359 U.S. 534 


NO. 791.  DECIDED MAY 25, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW: - ARK. - , 315 S.W.2D
884. 


LAMAR BATH HOUSE CO. ET AL. V. CITY OF HOT SPRINGS ET AL. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. V. ILLINOIS 359 U.S.
534 


NO. 793.  DECIDED MAY 25, 1959 - 168 F. SUPP. 706, AFFIRMED. 


CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. V. ILLINOIS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















DICK V. NEW YORK LIFE INSURANCE 359 U.S. 437 


NO. 58.  ARGUED JANUARY 12, 1959 - DECIDED MAY 18, 1959 - 252 F.2D 43,
REVERSED. 


IN THIS CASE FEDERAL JURISDICTION WAS BASED ON DIVERSITY OF
CITIZENSHIP AND THE ISSUE WAS WHETHER AN INSURED DIED AS A RESULT OF
SUICIDE OR ACCIDENT.  HE WAS ALONE WHEN HE MET HIS DEATH FROM TWO
WOUNDS FROM HIS DOUBLE-BARRELED SHOTGUN.  IN SUCH CIRCUMSTANCES
APPLICABLE STATE LAW PRESUMES THAT DEATH WAS ACCIDENTAL AND PLACES ON
THE INSURER THE BURDEN OF PROVING THAT DEATH RESULTED FROM SUICIDE.  SO
INSTRUCTED, THE JURY FOUND THAT DEATH WAS ACCIDENTAL AND RETURNED A
VERDICT FOR THE BENEFICIARY.  THE EVIDENCE WAS ENTIRELY CIRCUMSTANTIAL
AND COULD SUPPORT SUCH A VERDICT.  THE DISTRICT COURT DENIED THE
INSURER'S MOTIONS FOR A DIRECTED VERDICT, JUDGMENT NOTWITHSTANDING THE
VERDICT AND A NEW TRIAL AND ENTERED JUDGMENT FOR THE BENEFICIARY. 
AFTER REVIEWING THE RECORD, THE COURT OF APPEALS CONCLUDED THAT THE GUN
COULD NOT HAVE BEEN FIRED WITHOUT SOMEONE OR SOMETHING PULLING OR
PUSHING THE TRIGGER AND THAT THE EVIDENCE DID NOT JUSTIFY SUBMITTING
THE ISSUE TO THE JURY, AND IT REVERSED WITH DIRECTIONS TO DISMISS THE
COMPLAINT.  HELD:  THE DISTRICT COURT PROPERLY SUBMITTED THE ISSUE TO
THE JURY, AND THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.  PP.
437-447. 

DICK V. NEW YORK LIFE INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT, UNDER THE APPLICABLE PRINCIPLES HEREINAFTER DISCUSSED,
PROPERLY HELD THAT IT WAS ERROR TO SUBMIT TO A JURY'S DETERMINATION
WHETHER AN INSURED DIED AS A RESULT OF SUICIDE OR ACCIDENT. 

PETITIONER IS THE BENEFICIARY OF TWO POLICIES ISSUED BY RESPONDENT IN
1944 AND 1949 INSURING THE LIFE OF HER NOW DECEASED HUSBAND, WILLIAM
DICK.  EACH POLICY CONTAINED A CLAUSE WHICH PROVIDED THAT DOUBLE
INDEMNITY WOULD BE PAYABLE UPON RECEIPT OF PROOF THAT THE DEATH OF THE
INSURED "RESULTED DIRECTLY, AND INDEPENDENTLY OF ALL OTHER CAUSES, FROM
BODILY INJURY EFFECTED SOLELY THROUGH EXTERNAL VIOLENT AND ACCIDENTAL
MEANS," BUT THAT THE DOUBLE INDEMNITY WOULD NOT BE PAYABLE IF THE
INSURED'S DEATH RESULTED FROM "SELF-DESTRUCTION, WHETHER SANE OR
INSANE." 

MR. DICK MET HIS DEATH WHILE ALONE IN THE SILAGE SHED OF HIS FARM. 
THE DEATH RESULTED FROM TWO WOUNDS CAUSED BY THE DISCHARGE OF HIS
SHOTGUN.  (FN1)  PETITIONER FILED PROOFS OF DEATH BUT RESPONDENT
REJECTED HER CLAIM FOR DOUBLE INDEMNITY PAYMENTS ON THE GROUND THAT MR.
DICK HAD COMMITTED SUICIDE.  PETITIONER THEN FILED SUIT IN THE NORTH
DAKOTA COURTS.  HER COMPLAINT SET FORTH THE POLICIES IN ISSUE, THE
FACTS SURROUNDING HER HUSBAND'S DEATH, AN ALLEGATION THAT THE DEATH WAS
ACCIDENTAL, AND A DEMAND FOR PAYMENT.  RESPONDENT REMOVED THE CASE TO
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA ON
THE GROUNDS OF DIVERSITY OF CITIZENSHIP AND JURISDICTIONAL AMOUNT.  IT
THEN FILED AN ANSWER TO THE COMPLAINT IN WHICH IT SET UP SUICIDE AS AN
AFFIRMATIVE DEFENSE TO THE DEMAND FOR DOUBLE INDEMNITY PAYMENTS. 
RESPONDENT ADMITTED LIABILITY FOR THE FACE AMOUNTS OF THE POLICIES
($7,500) AND NO ISSUE IS PRESENTED CONCERNING THOSE AMOUNTS. 

TRIAL PROCEEDED BEFORE THE DISTRICT JUDGE AND JURY.  THE EVIDENCE
SHOWED THAT THE DICKS, WHO HAD BEEN HAPPILY MARRIED SINCE 1926, LIVED
ON A FARM NEAR LISBON, NORTH DAKOTA, WHERE THEY RAISED SHEEP, CATTLE
AND FIELD CROPS.  FIVE OF THE SIX QUARTER SECTIONS OF THE FARM WERE
UNMORTGAGED AND MR. DICK, WHO WAS NOT KNOWN TO HAVE ANY FINANCIAL
PROBLEMS, HAD NEARLY $1,000 IN THE BANK.  HE WAS KNOWN AS A "HUSKY,"
"STRONG," "JOLLY" MAN WHO WAS SELDOM MOODY.  "IF HE HAD ANYTHING ON HIS
CHEST, HE WOULD GET IT OFF AND FORGET ABOUT IT."  DICK GOT ALONG WELL
WITH HIS NEIGHBORS AND WAS WELL LIKED IN THE COMMUNITY.  HE WAS 47 AT
THE TIME OF HIS DEATH.  HE WAS FIVE FEET SEVEN INCHES TALL, WEIGHED
APPROXIMATELY 165 POUNDS, AND WAS GENERALLY HEALTHY.  THE CORONER, WHO
WAS ALSO DICK'S PERSONAL DOCTOR, TESTIFIED THAT DICK WAS A MATURE,
MUSCULAR, PHYSICALLY ABLE WORKMAN WHO, THREE WEEKS BEFORE HIS DEATH,
WAS BRIGHT AND CHEERFUL.  ABOUT A YEAR AND A HALF BEFORE HIS DEATH, MR.
DICK VISITED THE DOCTOR AND COMPLAINED THAT HE FELT TIRED AND PEPLESS. 
HIS CONDITION WAS DIAGNOSED AS MILD TO MODERATE NON-SPECIFIC
PROSTATITIS FOR WHICH HE RECEIVED SULFA TREATMENTS AND HORMONE SHOTS. 
BUT THE RECORD IS DEVOID OF EVIDENCE THAT THE CONDITION WAS SERIOUS OR
PARTICULARLY PAINFUL OR THAT MR. DICK WAS ESPECIALLY CONCERNED WITH IT.
THE DICKS REARED FIVE CHILDREN.  ONE DAUGHTER STILL LIVED WITH THEM
AND ATTENDED HIGH SCHOOL IN NEARBY ELLIOTT.  DICK GOT ALONG WELL WITH
HIS WHOLE FAMILY. 

THE EVENING BEFORE HE DIED, THE FAMILY RETURNED FROM ELLIOTT AND ATE
ICE CREAM AND WATCHED TELEVISION TOGETHER.  MR. DICK HELPED HIS
DAUGHTER WITH A SCHOOL PROBLEM IN GENERAL SCIENCE EXPLAINING TO HER THE
INTRICACIES OF A TRANSFORMER.  HE SLEPT SOUNDLY THAT NIGHT.  HE
INTENDED TO HELP HIS COUSIN - A NEIGHBOR - MAKE SAUSAGE THE FOLLOWING
DAY.  HE AROSE THE NEXT MORNING, MILKED THE COWS, ATE A HEARTY
BREAKFAST, AND SPOKE WITH HIS WIFE ABOUT THEIR PLANS FOR THE DAY.  HE
SAID NOTHING TO INDICATE THAT HE CONTEMPLATED DOING ANYTHING OUT OF THE
ORDINARY.  ABOUT 8:30 A.M., MRS. DICK DROVE THEIR DAUGHTER TO SCHOOL. 
MR. DICK BACKED THE CAR OUT OF THE GARAGE FOR HIS WIFE AND SAID GOODBYE
IN A NORMAL WAY.  HE WAS THEN IN THE PROCESS OF FEEDING MILK TO THE
PIGS AND SILAGE TO THE CATTLE. 

MRS. DICK RETURNED IN ABOUT A HALF HOUR AND PROCEEDED TO WORK IN THE
HOUSE.  LATER, WHEN SHE THOUGHT IT WAS TIME TO LEAVE FOR THE COUSIN'S
HOUSE, SHE WENT TO LOCATE MR. DICK.  SHE WALKED TO THE BARN AND CALLED
FOR HIM BUT THERE WAS NO ANSWER.  SHE THEN WENT TO THE LITTLE 8 FOOT BY
12 FOOT SILAGE SHED ADJACENT TO THE BARN AND SAW MR. DICK LYING ON THE
FLOOR.  HE WAS FULLY CLOTHED FOR THE ZERO WEATHER LISBON WAS THEN
EXPERIENCING AND HE WORE BULKY GLOVES AND A HEAVY JACKET WHICH WAS
FULLY ZIPPED UP.  NEAR HIM LAY HIS SHOTGUN.  A GOOD PART OF HIS HEAD
APPEARED BLOWN OFF AND SHE KNEW FROM HIS APPEARANCE THAT HE WAS DEAD. 
SHE HURRIEDLY RETURNED TO THE HOUSE AND CALLED MR. DICK'S BROTHER WHO
LIVED NEARBY.  HE CAME IMMEDIATELY AND AT MRS. DICK'S DIRECTION WENT TO
THE SILAGE SHED.   THERE HE SAW MR. DICK LYING WITH HIS HEAD TO THE
NORTHWEST AND HIS FEET TO THE SOUTHEAST OF THE SHED.  THE BODY WAS
ALONG THE SOUTH WALL WITH THE FEET NEAR THE CORNER.  LATER, WHEN HE
EXAMINED THE SHED MORE CLOSELY, HE FOUND A CONCENTRATION OF SHOTGUN
PELLETS HIGH IN THE NORTHWEST CORNER OF THE SHED AND OTHER PELLETS FOUR
TO FIVE FEET FROM THE FLOOR IN THE SOUTHEAST CORNER.  HE ALSO NOTICED A
SPRINKLE OF FROZEN SILAGE ON THE FLOOR OF THE SHED AND ON THE STEPS
LEADING TO THE DOOR FROM THE SHED. 

JAMES DICK, THE DECEASED'S NEPHEW, ALSO RESPONDED TO MRS. DICK'S
CALL.  HE STATED THAT UPON ARRIVING AT THE DICKS' HOUSE, HE SAW A TUB
NEWLY FILLED WITH GROUND CORN IN THE SILAGE YARD AND THAT NORMALLY HIS
UNCLE FED SILAGE WITH A TOPPING OF GROUND CORN TO THE CATTLE.  HE ALSO
STATED THAT THE CATTLE WERE JUST THEN FINISHING THE SILAGE PRESUMABLY
LAID OUT BY MR. DICK BEFORE HIS DEATH. 

AT ABOUT 11 A.M., THE SHERIFF ARRIVED.  MR. DICK WAS STILL LYING
WHERE HE HAD DIED.  THE SHERIFF EXAMINED MR. DICK'S SHOTGUN AND FOUND
TWO DISCHARGED SHELLS IN ITS CHAMBER.  THE GUN WAS DRY AND CLEAN AND
THERE WERE NO BLOODSTAINS ON IT OR ON THE GLOVES WHICH DICK WAS STILL
WEARING.  THE SHERIFF ALSO NOTICED SOME OF THE SHOT PATTERNS FOUND BY
DICK'S BROTHER AND SAW SOME BRAIN TISSUE SPLATTERED ON THE SOUTHEAST
CORNER.  HE FOUND A SCREWDRIVER LYING ON THE FLOOR ABOUT A FOOT FROM
THE GUN.  THE DICKS USED THE SCREWDRIVER TO OPEN AND CLOSE THE DOOR TO
THE SILAGE SHED BECAUSE THE DOORKNOB WAS MISSING. 

SOON THEREAFTER THE CORONER ARRIVED.  HE TESTIFIED THAT MR. DICK'S
BODY CONTAINED A SHOTGUN WOUND ON THE LEFT SIDE AND ONE ON THE HEAD. 
THE BODY WOUND WAS MORTAL, BUT NOT IMMEDIATELY FATAL.  IT CONSISTED OF
A GOUGED OUT WOUND ON THE LEFT LATERAL CHEST WALL WHICH REMOVED SKIN,
FAT, RIB MUSCLES AND PORTIONS OF RIB FROM THE BODY.  IN ADDITION, OTHER
RIBS WERE FRACTURED AND DICK'S LEFT LUNG WAS COLLAPSED.  IN THE
CORONER'S OPINION, IT WAS THE TYPE OF WOUND WHICH WOULD HAVE HAD TO
RESULT IN IMMENSE PAIN, ALTHOUGH IT PROBABLY WOULD NOT HAVE MADE IT
IMPOSSIBLE FOR DICK AGAIN TO DISCHARGE THE GUN.  THE WOUND TO THE HEAD
CAUSED IMMEDIATE DEATH.  ACCORDING TO THE TESTIMONY OF THE SHERIFF AND
A MEMBER OF THE FARGO POLICE DEPARTMENT, BOTH WOUNDS WERE RECEIVED FROM
THE FRONT.  IN THE SHERIFF'S OPINION, THE CHEST WOUND WAS RECEIVED FROM
AN UPWARD SHOT INTO DICK'S BODY, BUT THIS TESTIMONY CONFLICTED WITH
ANOTHER STATEMENT OF THE SHERIFF INDICATING THAT THE WOUND WAS RECEIVED
FROM A DOWNWARD SHOT. 

IT WAS CLEAR FROM THE TESTIMONY THAT MR. DICK WAS AN EXPERIENCED
HUNTER.  PETITIONER TESTIFIED THAT HE KEPT THE SHOTGUN IN THE BARN
BECAUSE OF ATTACKS ON HIS SHEEP BY VICIOUS DOGS DURING THE PRECEDING
YEAR.  A NUMBER OF THE SHEEP HAD BEEN KILLED IN THIS MANNER.  IN
ADDITION, DICK HAD MENTIONED SEEING FOXES NEAR THE BARN.  MRS. DICK
TESTIFIED THAT WHEN HER HUSBAND WENT HUNTING, HE SOMETIMES BORROWED HIS
FATHER'S GUN BECAUSE HE DIDN'T TRUST HIS OWN.  SHE WAS WITH HIM ONCE
WHEN THE GUN WOULDN'T FIRE AND HAD BEEN TOLD THAT OCCASIONALLY IT FIRED
ACCIDENTALLY.  IN ADDITION, DICK'S BROTHER TESTIFIED THAT WHILE HUNTING
WITH DICK HE HEARD A SHOT AT AN UNEXPECTED TIME WHICH DICK EXPLAINED AS
AN ACCIDENTAL DISCHARGE THAT OCCURRED "ONCE IN A WHILE."  THE GUN WAS
OVER 26 YEARS OLD. 

THE SHERIFF TESTIFIED THAT AFTER THE DEATH HE TESTED DICK'S GUN BY
COCKING AND DROPPING IT A NUMBER OF TIMES.  (FN2)  THE TRIGGERS DID NOT
RELEASE ON ANY OF THESE OCCASIONS.  THE SHERIFF ALSO EXPLAINED THAT THE
GUN HAD A SAFETY AND COULD NOT DISCHARGE WITH THE SAFETY ON.  THE
SAFETY WAS OFF DURING EACH OF HIS TESTS.  FINALLY, THE SHERIFF STATED
THAT EACH TRIGGER HAD APPROXIMATELY A SEVEN-POUND TRIGGER PULL. 

NO SUICIDE NOTES WERE FOUND.  MR. DICK HAD SAID NOTHING TO HIS
RELATIVES OR FRIENDS CONCERNING SUICIDE.  HE LEFT NO WILL. 

AT THE CONCLUSION OF THE EVIDENCE, RESPONDENT UNSUCCESSFULLY MOVED
FOR A DIRECTED VERDICT.  THE COURT CHARGED THE JURY THAT UNDER STATE
LAW ACCIDENTAL DEATH SHOULD BE PRESUMED AND THAT RESPONDENT HAD THE
BURDEN TO SHOW BY A FAIR PREPONDERANCE OF THE EVIDENCE THAT DICK
COMMITTED SUICIDE.  THE JURY RETURNED A VERDICT OF $7,500 FOR
PETITIONER.  RESPONDENT'S MOTIONS FOR JUDGMENT NOTWITHSTANDING THE
VERDICT AND FOR NEW TRIAL WERE DENIED. 

IN THIS COURT AND BEFORE THE COURT OF APPEALS, BOTH PARTIES ASSUMED
THAT THE PROPRIETY OF THE DISTRICT COURT'S REFUSAL TO GRANT
RESPONDENT'S MOTIONS WAS A MATTER OF NORTH DAKOTA LAW.  UNDER THAT LAW,
IT IS CLEAR THAT UNDER THE CIRCUMSTANCES PRESENT IN THIS CASE A
PRESUMPTION ARISES, WHICH HAS THE WEIGHT OF AFFIRMATIVE EVIDENCE, THAT
DEATH WAS ACCIDENTAL.  SVIHOVEC V. WOODMEN ACCIDENT CO., 69 N.D. 259,
285 N.W. 447.  SEE PAULSEN V. MODERN WOODMEN OF AMERICA, 21 N.D. 235,
130 N.W. 231; CLEMENS V. ROYAL NEIGHBORS OF AMERICA, 14 N.D. 116, 103
N.W. 402; STEVENS V. CONTINENTAL CASUALTY CO., 12 N.D. 463, 97 N.W.
862.  (FN3)  PROOF OF COVERAGE AND OF DEATH BY GUNSHOT WOUND SHIFTS THE
BURDEN TO THE INSURER TO ESTABLISH THAT THE DEATH OF THE INSURED WAS
DUE TO HIS SUICIDE.  SVIHOVEC V. WOODMEN ACCIDENT CO., SUPRA.  UNDER
NORTH DAKOTA LAW, THIS PRESUMPTION DOES NOT DISAPPEAR ONCE THE INSURER
PRESENTS ANY EVIDENCE OF SUICIDE.  IBID.  RATHER, THE PRESUMED FACT
(ACCIDENTAL DEATH) CONTINUES AND A PLAINTIFF IS ENTITLED TO AFFIRMATIVE
INSTRUCTIONS TO THE JURY CONCERNING ITS EXISTENCE AND WEIGHT.  (FN4)
THIS IS NOT TO SAY THAT UNDER NORTH DAKOTA LAW THE PRESUMPTION OF
ACCIDENTAL DEATH MAY NOT BE OVERCOME BY SO MUCH EVIDENCE THAT THE
INSURER IS ENTITLED TO A DIRECTED VERDICT.  FOR IT IS CLEAR THAT WHERE
"THERE IS NO EVIDENCE IN THE RECORD THAT CAN BE SAID TO BE INCONSISTENT
WITH THE CONCLUSION OF DEATH BY SUICIDE," OR "THE FACTS AND
CIRCUMSTANCES SURROUNDING THE DEATH CAN NOT BE RECONCILED WITH ANY
REASONABLE THEORY OF ACCIDENTAL OR NONINTENTIONAL INJURY," THE STATE
COURT MAY DIRECT A VERDICT FOR THE INSURER EVEN THOUGH THE INSURER IS
CHARGED WITH THE BURDEN OF PROVING THAT DEATH WAS CAUSED BY SUICIDE. 
(FN5)  THESE STATE RULES DETERMINE WHEN THE EVIDENCE IN A "SUICIDE"
CASE IS SUFFICIENT TO GO TO A JURY.  THEY ARE NOT DIRECTED AT
DETERMINING WHEN THE PRESUMPTION OF ACCIDENTAL DEATH IS REBUTTED, AND
THUS EXCISED FROM THE CASE, BECAUSE, AS STATED ABOVE, THE PRESUMED FACT
OF ACCIDENTAL DEATH CONTINUES THROUGHOUT THE TRIAL AND HAS THE WEIGHT
OF AFFIRMATIVE EVIDENCE. 

THE COURT OF APPEALS, IN ITS OPINION, REVIEWED THE EVIDENCE IN DETAIL
AND RESOLVED AT LEAST ONE DISPUTED POINT IN RESPONDENT'S FAVOR.  IT
FOUND, AS "DEFINITELY ESTABLISHED BY THE EVIDENCE," THAT "NEITHER
BARREL OF THE SHOTGUN COULD HAVE BEEN FIRED UNLESS SOMEONE OR SOMETHING
EITHER PULLED OR PUSHED ONE OF THE TRIGGERS."  IT STATED THAT  "ONE CAN
BELIEVE THAT EVEN AN EXPERIENCED HUNTER MIGHT ACCIDENTALLY SHOOT
HIMSELF ONCE, BUT THE ASSERTED THEORY THAT HE COULD ACCIDENTALLY SHOOT
HIMSELF FIRST WITH ONE BARREL AND THEN WITH THE OTHER STRETCHES
CREDULITY BEYOND THE BREAKING POINT."  (FN6) AND IT CONCLUDED THAT THE
FACTS AND CIRCUMSTANCES COULD NOT "BE RECONCILED WITH ANY REASONABLE
THEORY OF ACCIDENT, AND THAT, UNDER THE EVIDENCE, THE QUESTION WHETHER
THE DEATH WAS ACCIDENTAL WAS NOT A QUESTION OF FACT FOR THE JURY." 
JUDGMENT WAS REVERSED WITH DIRECTIONS TO DISMISS THE COMPLAINT.  252
F.2D 43.  WE GRANTED CERTIORARI, 357 U.S. 925. 

LURKING IN THIS CASE IS THE QUESTION WHETHER IT IS PROPER TO APPLY A
STATE OR FEDERAL TEST OF SUFFICIENCY OF THE EVIDENCE TO SUPPORT A JURY
VERDICT WHERE FEDERAL JURISDICTION IS RESTED ON DIVERSITY OF
CITIZENSHIP.  ON THIS QUESTION, THE LOWER COURTS ARE NOT IN AGREEMENT. 
COMPARE ROWE V. PENNSYLVANIA GREYHOUND LINES, 231 F.2D 922; COOPER V.
BROWN, 126 F.2D 874; LOVAS V. GENERAL MOTORS CORP., 212 F.2D 805, WITH
DAVIS FROZEN FOODS V. NORFOLK SOUTHERN R. CO., 204 F.2D 839; REUTER V.
EASTERN AIR LINES, 226 F.2D 443; DIEDERICH V. AMERICAN NEWS CO., 128
F.2D 144.  AND SEE MORGAN, CHOICE OF LAW GOVERNING PROOF, 58 HARV. L.
REV. 153, 174, AND 5 MOORE'S FEDERAL PRACTICE (2D ED. 1951) SEC.
38.10.  BUT THE QUESTION IS NOT PROPERLY HERE FOR DECISION BECAUSE, IN
THE BRIEFS AND ARGUMENTS IN THIS COURT, BOTH PARTIES ASSUMED THAT THE
NORTH DAKOTA STANDARD APPLIED.  (FN7) MOREOVER, ALTHOUGH THE COURT OF
APPEALS APPEARS TO HAVE APPLIED THE STATE STANDARD, THAT COURT DID NOT
DISCUSS THE ISSUE.  UNDER THESE CIRCUMSTANCES, WE WILL NOT REACH OUT TO
DECIDE THIS IMPORTANT QUESTION PARTICULARLY WHERE, IN THE CONTEXT OF
THIS CASE, THE TWO STANDARDS ARE SUBSTANTIALLY THE SAME.  (FN8)  A
DECISION AS TO WHICH STANDARD SHOULD BE APPLIED CAN WELL BE LEFT TO
ANOTHER CASE WHERE THE QUESTION IS BRIEFED AND ARGUED.  THIS CASE CAN
BE DECIDED ON THE SIMPLE ISSUE STATED AT THE OUTSET OF THE OPINION. 
IN OUR VIEW, THE COURT OF APPEALS IMPROPERLY REVERSED THE JUDGMENT OF
THE DISTRICT COURT.  IT COMMITTED ITS BASIC ERROR IN RESOLVING A
FACTUAL DISPUTE IN FAVOR OF RESPONDENT THAT THE SHOTGUN WOULD NOT FIRE
UNLESS SOMEONE OR SOMETHING PULLED THE TRIGGERS.  PETITIONER'S EVIDENCE
ON THIS SCORE, DESPITE THE "TESTS" PERFORMED BY THE SHERIFF, COULD
SUPPORT A JURY CONCLUSION THAT THE GUN MIGHT HAVE FIRED ACCIDENTALLY
FROM OTHER CAUSES.  ONCE AN ACCIDENTAL DISCHARGE IS POSSIBLE, A JURY
COULD RATIONALLY CONCEIVE OF A NUMBER OF EXPLANATIONS OF ACCIDENTAL
DEATH WHICH WERE CONSISTENT WITH EVIDENCE WHICH THE JURY MIGHT WELL
HAVE BELIEVED SHOWED THE OVERWHELMING IMPROBABILITY OF SUICIDE.  THE
RECORD INDISPUTABLY SHOWS LACK OF MOTIVE - IN FACT THERE IS AFFIRMATIVE
EVIDENCE FROM WHICH THE JURY COULD INFER THAT DICK WAS A MOST UNLIKELY
SUICIDE PROSPECT.  HE WAS RELATIVELY HEALTHY, FINANCIALLY SECURE,
HAPPILY MARRIED, WELL LIKED, AND APPARENTLY EMOTIONALLY STABLE.  HE
LEFT NOTHING BEHIND TO INDICATE THAT HE HAD COMMITTED SUICIDE AND
NOTHING IN HIS CONDUCT BEFORE DEATH INDICATED AN INTENTION TO DESTROY
HIMSELF.  THE TIMING OF THE DEATH, WHILE IN THE MIDST OF NORMAL CHORES
AND IMMEDIATELY PRECEDING A PLANNED APPOINTMENT WITH NEIGHBORS,
MILITATES AGAINST SUCH A CONCLUSION.  DICK'S PRESENCE IN THE SHED AND
THE ACCESSIBILITY OF THE GUN ARE EXPLICABLE IN VIEW OF THE FACT THAT
DOGS HAD PREVIOUSLY ATTACKED HIS SHEEP AND THE FACT THAT THE DOOR IN
THE SHED PROVIDED A CONVENIENT EXIT TO THE ADJOINING FIELDS.  AND A
JURY COULD WELL BELIEVE IT IMPROBABLE THAT A MAN WOULD NOT EVEN BOTHER
TO REMOVE HIS BULKY GLOVES, OR THICK JACKET, WHEN HE INTENDED TO COMMIT
SUICIDE EVEN THOUGH THOSE ARTICLES OF CLOTHING MADE IT DIFFICULT TO
TURN THE GUN ON HIMSELF. 

IN A CASE LIKE THIS ONE, NORTH DAKOTA PRESUMES THAT DEATH WAS
ACCIDENTAL AND PLACES ON THE INSURER THE BURDEN OF PROVING THE DEATH
RESULTED FROM SUICIDE.  STEVENS V. CONTINENTAL CASUALTY CO., SUPRA;
PAULSEN V. MODERN WOODMEN OF AMERICA, SUPRA.  UNDER THE ERIE RULE,
(FN9) PRESUMPTIONS (AND THEIR EFFECTS) AND BURDEN OF PROOF ARE
"SUBSTANTIVE" AND HENCE RESPONDENT WAS REQUIRED TO SHOULDER THE BURDEN
DURING THE INSTANT TRIAL.  PALMER V. HOFFMAN, 318 U.S. 109; CITIES
SERVICE OIL CO. V. DUNLAP, 308 U.S. 208.  AND SEE BALCHUNAS V. PALMER,
151 F.2D 842; SYLVANIA ELECTRIC PRODUCTS V. BARKER, 228 F.2D 842;
MATSUMOTO V. CHICAGO & N.W.R. CO., 168 F.2D 496.  AFTER ALL THE
EVIDENCE WAS IN, THE DISTRICT JUDGE, WHO WAS INTIMATELY CONCERNED WITH
THE TRIAL AND WHO HAS A FIRST-HAND KNOWLEDGE OF THE APPLICABLE STATE
PRINCIPLES, BELIEVED THAT THE CASE SHOULD GO TO THE JURY.  UNDER ALL
THE CIRCUMSTANCES, WE BELIEVE THAT HE WAS CORRECT AND THAT REASONABLE
MEN COULD CONCLUDE THAT THE RESPONDENT FAILED TO SATISFY ITS BURDEN OF
SHOWING THAT DEATH RESULTED FROM SUICIDE.  REVERSED. 

FN1  THE GUN WAS A STEVENS, 12 GAUGE, DOUBLE BARRELED SHOTGUN WITH
TWO TRIGGERS PLACED ONE BEHIND THE OTHER.  IT WEIGHED APPROXIMATELY
SEVEN POUNDS.  IT HAD AN OVER-ALL LENGTH OF 46 INCHES AND MEASURED 32
INCHES FROM MUZZLE TO TRIGGERS. 

FN2  THE SHERIFF STATED THAT HE DID NOT "PRETEND TO BE AN EXPERT AS
FAR AS SHOTGUNS ARE CONCERNED."  HIS TESTS CONSISTED OF DROPPING THE
GUN WITH THE MUZZLE DOWN TEN TIMES FROM A HEIGHT OF TEN INCHES AND
HOLDING THE GUN WITH THE BUTT DOWN ABOUT TEN INCHES FROM THE FLOOR AND
DROPPING IT ON A BOARD EIGHT OR TEN TIMES.  HE ALSO PLACED THE GUN IN A
NORMAL SHOOTING POSITION AGAINST HIS SHOULDER AND SWUNG THE BARREL
AGAINST AN OBSTACLE THREE OR FOUR TIMES. 

FN3  THIS STATEMENT OF THE PRESUMPTION AND ITS WEIGHT ACCORDS WITH
THE REQUIREMENTS OF N.D.  REV. CODE, 1943, SEC. 31-1101, WHICH
PROVIDES: 

"A PRESUMPTION, UNLESS DECLARED BY LAW TO BE CONCLUSIVE, MAY BE
CONTROVERTED BY OTHER DIRECT OR INDIRECT EVIDENCE BUT UNLESS SO
CONTROVERTED, THE JURORS ARE BOUND TO FIND ACCORDING TO THE
PRESUMPTION." 

FN4  RESPONDENT'S ARGUMENT BELOW THAT THE COURT SHOULD ADOPT THE
"MODERN" RULE ON THE EFFECT OF PRESUMPTIONS, SEE, E.G., 9 WIGMORE ON
EVIDENCE (3D ED. 1940) SEC. 2491, WAS REJECTED.  THE "MODERN" RULE WAS
APPLIED BY THIS COURT IN NEW YORK LIFE INS. CO. V. GAMER, 303 U.S. 161,
A DECISION PREDATING ERIE R. CO. V. TOMPKINS, 304 U.S. 64.  FOR THE
SUBSEQUENT HISTORY OF THE GAMER CASE, SEE 106 F.2D 375. 

FN5  SVIHOVEC V. WOODMEN ACCIDENT CO., SUPRA; CLEMENS V. ROYAL
NEIGHBORS OF AMERICAN, SUPRA. 

FN6  THE COURT OF APPEALS ADMITTED THE IMPROBABILITY OF DICK'S BEING
ABLE TO PULL THE TRIGGERS WITH BULKY GLOVES ON BUT BELIEVED THAT THIS
WAS OFFSET BY THE PROBABILITY THAT HE USED THE SCREWDRIVER TO PUSH THE
TRIGGERS.  THIS RESOLUTION OF THE FACTS SEEMS STRAINED INDEED.  THE
PRESENCE OF THE SCREWDRIVER WAS ACCOUNTED FOR BY TESTIMONY INDICATING
THAT IT WAS USED TO OPEN THE SILAGE SHED DOOR.  AND THE JURY COULD
REJECT AS IMPROBABLE THE COURT'S IMPLICIT THEORY THAT A MAN MORTALLY
WOUNDED IN THE CHEST AND BULKILY CLOTHED COULD HOLD A HEAVY SHOTGUN AT
ARM'S LENGTH AND SHOOT OFF HIS HEAD PARTICULARLY WHEN HE WAS WEARING
HEAVY GLOVES THAT COULD ONLY BE INSERTED IN THE TRIGGER GUARD WITH
DIFFICULTY. 

FN7  RESPONDENT ARGUED THAT THE NORTH DAKOTA RULE ON PRESUMPTIONS
SHOULD BE ABANDONED IN FAVOR OF THE "MODERN" RULE, SEE NOTE 4, SUPRA,
BUT THE RECORD DOES NOT SHOW THAT IT ARGUED FOR THE APPLICATION OF THE
FEDERAL STANDARD OF SUFFICIENCY OF THE EVIDENCE. 

FN8  COMPARE BRADY V. SOUTHERN R. CO., 320 U.S. 476, 479-480, AND
BAILEY V. CENTRAL VERMONT R. CO., 319 U.S. 350, 353, WITH SVIHOVEC V.
WOODMEN ACCIDENT CO., SUPRA. 

FN9  ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STEWART, CONCURRING. 

I CONCUR IN THE JUDGMENT, BELIEVING THAT THE DISTRICT JUDGE CORRECTLY
FOLLOWED APPLICABLE NORTH DAKOTA LAW IN SUBMITTING THIS CASE TO THE
JURY.  NOT HAVING BEEN A MEMBER OF THE COURT WHEN THE PETITION FOR
CERTIORARI WAS GRANTED, 357 U.S. 925, I CONSIDER IT INAPPROPRIATE NOW
TO EXPRESS A VIEW AS TO THE WISDOM OF BRINGING HERE A CASE LIKE THIS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE WHITTAKER JOINS,
DISSENTING. 

ON SEVERAL OCCASIONS I HAVE STATED THE REASONS FOR MY ADHERENCE TO
THE TRADITIONAL PRACTICE OF THE COURT NOT TO NOTE DISSENT FROM THE
COURT'S DISPOSITION OF PETITIONS FOR CERTIORARI.  (FN1) DIFFERENT
CONSIDERATIONS APPLY ONCE A CASE IS DECIDED. 

ESTABLISHMENT OF INTERMEDIATE APPELLATE COURTS IN 1891 (FN2) WAS
DESIGNED BY CONGRESS TO RELIEVE THE OVERBURDENED DOCKET OF THE COURT. 
(FN3)  THE CIRCUIT COURTS OF APPEALS WERE TO BE EQUAL IN DIGNITY TO THE
SUPREME COURTS OF THE SEVERAL STATES.  (FN4)  THE ESSENTIAL PURPOSE OF
THE EVARTS ACT WAS TO ENABLE THE SUPREME COURT TO DISCHARGE ITS
INDISPENSABLE FUNCTIONS IN OUR FEDERAL SYSTEM BY RELIEVING IT OF THE
DUTY OF ADJUDICATION IN CASES THAT ARE IMPORTANT ONLY TO THE
LITIGANTS.  (FN5) THE LEGISLATIVE HISTORY OF THE EVARTS ACT
DEMONSTRATES THAT IT WAS CLEAR IN 1891 NO LESS THAN TODAY THAT
LITIGATION ALLOWED TO BE BROUGHT INTO THE FEDERAL COURTS SOLELY ON THE
BASIS OF DIVERSITY OF CITIZENSHIP IS RARELY OF MOMENT EXCEPT TO THE
PARTIES.  (FN6)  THE ACT PROVIDED, THEREFORE, THAT IN DIVERSITY CASES
"THE JUDGMENTS OR DECREES OF THE CIRCUIT COURTS OF APPEALS SHALL BE
FINAL."  (FN7) IN A PROVISION WHICH SENATOR EVARTS REFERRED TO AS A
"WEAKNESS" IN THE ACT, (FN8) THIS COURT WAS GIVEN THE DISCRETIONARY
POWER TO GRANT CERTIORARI IN THESE CASES, TO BE EXERCISED IF SOME
QUESTION OF GENERAL INTEREST, OUTSIDE THE LIMITED SCOPE OF AN ORDINARY
DIVERSITY LITIGATION, WAS ALSO INVOLVED.  (FN9) 

ANY HESITANCE WHICH SENATOR EVARTS MAY HAVE FELT WAS NOT JUSTIFIED BY
THE EARLY HISTORY OF USE OF THIS CERTIORARI POWER.  THE COURT, MINDFUL
OF THE REASONS FOR THE RESTRICTION, SO LONG AND EAGERLY SOUGHT BY THE
COURT ITSELF, ON ITS OBLIGATORY JURISDICTION, AND FAITHFUL TO THE
COMPLEMENTARY OBLIGATION IMPOSED UPON IT BY ITS NEWLY CONFERRED POWER
TO CONTROL ITS DOCKET, EXERCISED THE GREATEST RESTRAINT AND CAUTION IN
GRANTING CERTIORARI IN CASES RESTING SOLELY ON DIVERSITY OF
CITIZENSHIP.  (FN10) 

TIME AND AGAIN IN THE YEARS IMMEDIATELY FOLLOWING THE PASSAGE OF THE
EVARTS ACT THIS COURT STATED THAT IT WAS ONLY IN CASES OF "GRAVITY AND
GENERAL IMPORTANCE" OR "TO SECURE UNIFORMITY OF DECISION" THAT THE
CERTIORARI POWER SHOULD BE EXERCISED.  (FN11)  MR. JUSTICE BREWER
EXPLAINED THE COURT'S WARINESS IN GRANTING CERTIORARI IN TERMS OF THE
PURPOSE OF THE ACT: 

"OBVIOUSLY, A POWER SO BROAD AND COMPREHENSIVE, IF CARELESSLY
EXERCISED, MIGHT DEFEAT THE VERY THOUGHT AND PURPOSE OF THE ACT
CREATING THE COURTS OF APPEAL.  SO EXERCISED IT MIGHT BURDEN THE DOCKET
OF THIS COURT WITH CASES WHICH IT WAS THE INTENT OF CONGRESS TO
TERMINATE IN THE COURTS OF APPEAL, AND WHICH, BROUGHT HERE, WOULD
SIMPLY PREVENT THAT PROMPTNESS OF DECISION WHICH IN ALL JUDICIAL
ACTIONS IS ONE OF THE ELEMENTS OF JUSTICE."  (FN12) 

IN ORDER TO JUSTIFY THE ESTABLISHMENT OF THE CIRCUIT COURTS OF
APPEALS IT WAS NECESSARY TO VIEW CERTIORARI AS: 

"A POWER WHICH WILL BE SPARINGLY EXERCISED, AND ONLY WHEN THE
CIRCUMSTANCES OF THE CASE SATISFY US THAT THE IMPORTANCE OF THE
QUESTION INVOLVED, THE NECESSITY OF AVOIDING CONFLICT BETWEEN TWO OR
MORE COURTS OF APPEAL, OR BETWEEN COURTS OF APPEAL AND THE COURTS OF A
STATE, OR SOME MATTER AFFECTING THE INTERESTS OF THIS NATION IN ITS
INTERNAL OR EXTERNAL RELATIONS, DEMANDS SUCH EXERCISE."  (FN13) 

THESE CONSIDERATIONS HAVE LED THE COURT IN SCORES OF CASES TO DISMISS
THE WRIT OF CERTIORARI EVEN AFTER ORAL ARGUMENT WHEN IT BECAME MANIFEST
THAT THE WRIT WAS GRANTED UNDER A MISAPPREHENSION OF THE TRUE ISSUES. 
(FN14)  CASES WHICH RAISED AS THEIR SOLE QUESTION THE SUFFICIENCY OF
EVIDENCE FOR SUBMISSION TO A JURY WERE NOT REGARDED AS COMPLYING WITH
THE STANDARDS NECESSITATED BY THE PURPOSES OF THE EVARTS ACT FOR
LIMITING THE POWER OF REVIEW BY CERTIORARI.  (FN15) 

TO STRENGTHEN FURTHER THIS COURT'S CONTROL OVER ITS DOCKET AND TO
AVOID REVIEW OF CASES WHICH IN THE MAIN RAISE ONLY FACTUAL
CONTROVERSIES, CONGRESS IN 1916 MADE CASES ARISING UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT FINAL IN THE COURTS OF APPEALS, REVIEWABLE BY
THIS COURT ONLY WHEN REQUIRED BY THE GUIDING STANDARDS FOR EXERCISING
ITS CERTIORARI JURISDICTION.  (FN16)  THE SENATE REPORT WHICH
ACCOMPANIED THIS BILL TO THE FLOOR OF THE SENATE SUGGESTED THAT THIS
CHANGE WOULD ALLOW THE SUPREME COURT MORE TIME FOR "EXPEDITIOUS
DETERMINATION OF THOSE CASES HAVING REAL SUBSTANCE."  (FN17) 

IN 1925 CONGRESS ENACTED THE "JUDGES' BILL," (FN18) CALLED SUCH
BECAUSE IT WAS DRAFTED BY A COMMITTEE OF THIS COURT COMPOSED OF VAN
DEVANTER, MCREYNOLDS, AND SUTHERLAND, JJ.  (FN19)  AT THE HEARINGS ON
THE BILL THESE JUSTICES AND MR. CHIEF JUSTICE TAFT EXPLAINED THE BILL
AND ALSO THE COURT'S PAST PRACTICE IN RESPECTING THE LIMITATIONS OF ITS
CERTIORARI JURISDICTION.  (FN20)  THESE AUTHORITATIVE EXPOSITIONS AND
ASSURANCES TO CONGRESS, ON THE BASIS OF WHICH CONGRESS SHARPLY
RESTRICTED THE COURT'S OBLIGATORY JURISDICTION, ADMIT OF NO DOUBT,
CONTAIN NO AMBIGUITY.  MR. CHIEF JUSTICE TAFT SAID: 

"NO LITIGANT IS ENTITLED TO MORE THAN TWO CHANCES, NAMELY, TO THE
ORIGINAL TRIAL AND TO A REVIEW, AND THE INTERMEDIATE COURTS OF REVIEW
ARE PROVIDED FOR THAT PURPOSE.  WHEN A CASE GOES BEYOND THAT, IT IS NOT
PRIMARILY TO PRESERVE THE RIGHTS OF THE LITIGANTS.  THE SUPREME COURT'S
FUNCTION IS FOR THE PURPOSE OF EXPOUNDING AND STABILIZING PRINCIPLES OF
LAW FOR THE BENEFIT OF THE PEOPLE OF THE COUNTRY, PASSING UPON
CONSTITUTIONAL QUESTIONS AND OTHER IMPORTANT QUESTIONS OF LAW FOR THE
PUBLIC BENEFIT.  IT IS TO PRESERVE UNIFORMITY OF DECISION AMONG THE
INTERMEDIATE COURTS OF APPEAL."  (FN21)

THE HOUSE REPORT, IN RECOMMENDING TO THE HOUSE OF REPRESENTATIVES
PASSAGE OF THE BILL, STATED THE MATTER SUCCINCTLY: 

"THE PROBLEM IS WHETHER THE TIME AND ATTENTION AND ENERGY OF THE
COURT SHALL BE DEVOTED TO MATTERS OF LARGE PUBLIC CONCERN, OR WHETHER
THEY SHALL BE CONSUMED BY MATTERS OF LESS CONCERN, WITHOUT ESPECIAL
GENERAL INTEREST, AND ONLY BECAUSE THE LITIGANT WANTS TO HAVE THE COURT
OF LAST RESORT PASS UPON HIS RIGHT."  (FN22) 

THOUGH VARIOUS OBJECTIONS TO CERTAIN JURISDICTIONAL CHANGES WORKED BY
THE BILL WERE VOICED ON THE FLOOR OF THE SENATE, EVEN CRITICAL SENATORS
RECOGNIZED THE GREAT DIFFERENCE BETWEEN THE SUPREME COURT AND OTHER
APPELLATE TRIBUNALS.  THUS SENATOR COPELAND: 

"THE UNITED STATES SUPREME COURT IS ONE OF THE THREE GREAT COORDINATE
BRANCHES OF THE GOVERNMENT, AND ITS TIME AND LABOR SHOULD, GENERALLY
SPEAKING, BE DEVOTED TO MATTERS OF GENERAL INTEREST AND IMPORTANCE AND
NOT TO DECIDING PRIVATE CONTROVERSIES BETWEEN CITIZENS INVOLVING NO
QUESTIONS OF GENERAL PUBLIC IMPORTANCE."  (FN23) 

IN CORRESPONDENCE BETWEEN SENATOR COPELAND AND MR. CHIEF JUSTICE
TAFT, THE LATTER WROTE: "THE APPEAL TO US SHOULD NOT BE BASED ON THE
RIGHT OF A LITIGANT TO HAVE A SECOND APPEAL."  (FN24) 

THIS UNDERSTANDING OF THE ROLE OF THE SUPREME COURT AND THE WAY IN
WHICH IT IS TO BE MAINTAINED IN OBSERVING THE SCOPE OF CERTIORARI
JURISDICTION, ARE CLEARLY SET FORTH IN A CONTEMPORARY EXPOSITION BY MR.
CHIEF JUSTICE TAFT OF THE PURPOSES OF THE JUDICIARY ACT OF 1925: 

"THE SOUND THEORY OF THAT ACT (ACT OF 1891) AND OF THE NEW ACT IS
THAT LITIGANTS HAVE THEIR RIGHTS SUFFICIENTLY PROTECTED BY A HEARING OR
TRIAL IN THE COURTS OF FIRST INSTANCE, AND BY ONE REVIEW IN AN
INTERMEDIATE APPELLATE FEDERAL COURT.  THE FUNCTION OF THE SUPREME
COURT IS CONCEIVED TO BE, NOT THE REMEDYING OF A PARTICULAR LITIGANT'S
WRONG, BUT THE CONSIDERATION OF CASES WHOSE DECISION INVOLVES
PRINCIPLES, THE APPLICATION OF WHICH ARE OF WIDE PUBLIC OR GOVERNMENTAL
INTEREST, AND WHICH SHOULD BE AUTHORITATIVELY DECLARED BY THE FINAL
COURT."  (FN25)    QUESTIONS OF FACT HAVE TRADITIONALLY BEEN DEEMED TO
BE THE KIND OF QUESTIONS WHICH OUGHT NOT TO BE RECANVASSED HERE UNLESS
THEY ARE ENTANGLED IN THE PROPER DETERMINATION OF CONSTITUTIONAL OR
OTHER IMPORTANT LEGAL ISSUES.  IN NEWELL V. NORTON, 3 WALL.  257, MR.
JUSTICE GRIER STATED THE CONSIDERATIONS WEIGHING AGAINST SUPREME COURT
REVIEW OF FACTUAL DETERMINATIONS:  "IT WOULD BE A VERY TEDIOUS AS WELL
AS A VERY UNPROFITABLE TASK TO AGAIN EXAMINE AND COMPARE THE
CONFLICTING STATEMENTS OF THE WITNESSES IN THIS VOLUME OF DEPOSITIONS. 
AND, EVEN IF WE COULD MAKE OUR OPINION INTELLIGIBLE, THE CASE COULD
NEVER BE A PRECEDENT FOR ANY OTHER CASE, OR WORTH THE TROUBLE OF
UNDERSTANDING."  3 WALL., AT 267.  AND HE ISSUED THIS CAVEAT:  "PARTIES
OUGHT NOT TO EXPECT THIS COURT TO REVISE THEIR DECREES MERELY ON A
DOUBT RAISED IN OUR MINDS AS TO THE CORRECTNESS OF THEIR JUDGMENT, ON
THE CREDIBILITY OF WITNESSES, OR THE WEIGHT OF CONFLICTING TESTIMONY." 
3 WALL., AT 268.  IN HOUSTON OIL CO. V. GOODRICH, 245 U.S. 440,
CERTIORARI WAS DISMISSED AS IMPROVIDENTLY GRANTED AFTER IT BECAME
APPARENT THAT THE ONLY QUESTION IN THE CASE WAS THE "PROPRIETY OF
SUBMITTING" CERTAIN QUESTIONS TO THE JURY AND THIS "DEPENDED
ESSENTIALLY UPON AN APPRECIATION OF THE EVIDENCE."  245 U.S., AT 441. 
TESTIFYING BEFORE THE SENATE JUDICIARY COMMITTEE IN HEARINGS CONCERNING
THE JUDGES' BILL, MR. JUSTICE VAN DEVANTER RELATED A SIMILAR INCIDENT. 
(FN26)  THE PROPER USE OF THE DISCRETIONARY CERTIORARI JURISDICTION WAS
ON A LATER OCCASION THUS EXPOUNDED BY MR. CHIEF JUSTICE HUGHES: 

"RECORDS ARE REPLETE WITH TESTIMONY AND EVIDENCE OF FACTS.  BUT THE
QUESTIONS ON CERTIORARI ARE QUESTIONS OF LAW.  SO MANY CASES TURN ON
THE FACTS, PRINCIPLES OF LAW NOT BEING IN CONTROVERSY.  IT IS ONLY WHEN
THE FACTS ARE INTERWOVEN WITH THE QUESTIONS OF LAW WHICH WE SHOULD
REVIEW THAT THE EVIDENCE MUST BE EXAMINED AND THEN ONLY TO THE EXTENT
THAT IT IS NECESSARY TO DECIDE THE QUESTIONS OF LAW. 

"THIS AT ONCE DISPOSES OF A VAST NUMBER OF FACTUAL CONTROVERSIES
WHERE THE PARTIES HAVE BEEN FULLY HEARD IN THE COURTS BELOW AND HAVE NO
RIGHT TO BURDEN THE SUPREME COURT WITH THE DISPUTE WHICH INTERESTS NO
ONE BUT THEMSELVES."  (FN27) 

WHAT ARE THE QUESTIONS WHICH PETITIONER HERE PRESSES UPON US?  THE
PETITION FOR CERTIORARI SETS FORTH AS THE QUESTIONS PRESENTED:  (1) WAS
PETITIONER DEPRIVED OF HER CONSTITUTIONAL RIGHT TO A JURY TRIAL
GUARANTEED BY THE SEVENTH AMENDMENT?  (2) DID THE COURT OF APPEALS
REFUSE TO FOLLOW NORTH DAKOTA LAW AS IT WAS REQURIED TO DO UNDER ERIE
R. CO. V. TOMPKINS, 304 U.S. 64?  IF THIS CASE RAISES A QUESTION UNDER
THE SEVENTH AMENDMENT, SO DOES EVERY GRANTED MOTION FOR DISMISSAL OF A
COMPLAINT CALLING FOR TRIAL BY JURY, EVERY DIRECTION OF VERDICT, EVERY
JUDGMENT NOTWITHSTANDING THE VERDICT.  FABULOUS INFLATION CANNOT TURN
THESE CONVENTIONAL MOTIONS TURNING ON APPRECIATION OF EVIDENCE INTO
CONSTITUTIONAL ISSUES, NOR CAN THE MANY DIVERSITY CASES SOUGHT TO BE
BROUGHT HERE ON CONTESTED QUESTIONS OF EVIDENTIARY WEIGHT BE SIMILARLY
TRANSFORMED BY INSISTING BEFORE THIS COURT THAT THE CONSTITUTION HAS
BEEN VIOLATED.  THIS VERBAL SMOKE SCREEN CANNOT OBSCURE THE TRUTH THAT
ALL THAT IS INVOLVED IS AN APPRAISAL OF THE FAIR INFERENCES TO BE DRAWN
FROM THE EVIDENCE.  CHIEF JUDGE MAGRUDER HAS EXPRESSED THE COMMON SENSE
OF THE MATTER: 

"IF AN APPELLATE COURT IS OF THE VIEW THAT THE TRIAL COURT MADE AN
ERROR OF JUDGMENT IN WITHDRAWING A CASE FROM THE JURY, OR IN ENTERING
JUDGMENT FOR THE DEFENDANT NOTWITHSTANDING A PLAINTIFF'S VERDICT, A
REVERSAL BY A COURT OF APPEALS IS NO DOUBT CALLED FOR; BUT WE CANNOT
SEE THAT ANYTHING IS GAINED BY BLOWING UP THAT ERROR OF JUDGMENT INTO A
DENIAL OF THE CONSTITUTIONAL RIGHT TO A JURY TRIAL AS GUARANTEED BY THE
SEVENTH AMENDMENT."  (FN28) 

PETITIONER'S INSISTENCE THAT THE COURT OF APPEALS IGNORED OR ACTED AT
VARIANCE WITH THE LAW OF NORTH DAKOTA IS DISPROVED BY THE CITATION AND
DISCUSSION OF THE RELEVANT NORTH DAKOTA DECISION IN THE OPINION BELOW. 
SEE 252 F.2D 43, 46.  THE TEST OF SUFFICIENCY APPLIED BY THE COURT OF
APPEALS BELOW IS THE SAME TEST WHICH PETITIONER ASKS US TO APPLY, AND
IS THE TEST ESTABLISHED BY THE NORTH DAKOTA SUPREME COURT IN SVIHOVEC
V. WOODMEN ACC.  CO., 69 N.D. 259, 285 N.W. 447.  "OUR CONCLUSION," THE
OPINION BELOW ANNOUNCED, "IS THAT THE INFLICTION OF TWO WOUNDS IN
SUCCESSION, ONE IN THE LEFT SIDE IN CLOSE PROXIMITY TO THE HEART, AND
THE OTHER IN THE HEAD, CANNOT BE RECONCILED WITH ANY REASONABLE THEORY
OF ACCIDENT, AND THAT, UNDER THE EVIDENCE, THE QUESTION WHETHER THE
DEATH WAS ACCIDENTAL WAS NOT A QUESTION OF FACT FOR THE JURY."  252
F.2D 43, 47.  THUS, AS THE RECORD WAS INTERPRETED BY THE COURT OF
APPEALS THE EVIDENCE FELL SHORT OF THE REQUIREMENTS OF NORTH DAKOTA LAW
FOR SUBMISSION TO A JURY.  IT MIGHT BE NOTED THAT ITS INTERPRETATION OF
THE RECORD WOULD HAVE REQUIRED THE SAME RESULT WERE FEDERAL LAW TO
DETERMINE SUFFICIENCY.  WE HAVE HELD THAT "WHATEVER MAY BE THE GENERAL
FORMULATION, THE ESSENTIAL REQUIREMENT IS THAT MERE SPECULATION BE NOT
ALLOWED TO DO DUTY FOR PROBATIVE FACTS, AFTER MAKING DUE ALLOWANCE FOR
ALL REASONABLY POSSIBLE INFERENCES FAVORING THE PARTY WHOSE CASE IS
ATTACKED."  (FN29) 

ALIKE IN CONGRESS AND HERE IT HAS BEEN REPEATEDLY INSISTED THAT A
QUESTION LIKE THAT RAISED BY PETITIONER - WAS THERE SUFFICIENT EVIDENCE
FOR SUBMISSION TO A JURY - IS NOT PROPER FOR REVIEW IN THIS COURT.  THE
CIRCUMSTANCES IN THE TYPE OF SITUATION BEFORE US ARE INFINITE IN THEIR
VARIETY.  JUDICIAL JUDGMENTS UPON SUCH CIRCUMSTANCES ARE BOUND TO VARY
WITH THE PARTICULARITIES OF THE INDIVIDUAL SITUATION.  THE DECISION IN
EACH CASE IS A STRICTLY PARTICULAR ADJUDICATION - A UNIQUE CASE SINCE
IT TURNS ON UNIQUE FACTS - AND CANNOT HAVE PRECEDENTIAL VALUE.  OF
COURSE IT IS OF INTEREST, PERHAPS OF GREAT IMPORTANCE TO THE PARTIES,
BUT ONLY AS SUCH AND NOT INDEPENDENTLY OF ANY GENERAL PUBLIC INTEREST. 

THE CONSIDERATIONS THAT DEMAND STRICT ADHERENCE BY THE COURT TO THE
RULES IT HAS LAID DOWN FOR THE BAR IN APPLYING FOR THE EXERCISE OF THE
COURT'S "SOUND JUDICIAL DISCRETION" IN GRANTING A WRIT OF CERTIORARI
ARE NOT TECHNICAL, IN THE INVIDIOUS SENSE OF THE TERM.  THEY GO TO THE
VERY HEART OF THE EFFECTIVE DISCHARGE OF THIS COURT'S FUNCTIONS.  TO
BRING A CASE HERE WHEN THERE IS NO "SPECIAL AND IMPORTANT" (FN30)
REASON FOR DOING SO, WHEN THERE IS NO REASON OTHER THAN THE INTEREST OF
A PARTICULAR LITIGANT, ESPECIALLY WHEN THE DECISION TURNS SOLELY ON A
VIEW OF CONFLICTING EVIDENCE OR THE APPLICATION OF A PARTICULAR LOCAL
DOCTRINE DECIDED ONE WAY RATHER THAN ANOTHER BY A COURT OF APPEALS
BETTER VERSED IN THE FIELD OF SUCH LOCAL LAW THAN WE CAN POSSIBLY BE,
WORKS INROADS ON THE TIME AVAILABLE FOR DUE STUDY AND REFLECTION OF
THOSE CLASSES OF CASES FOR THE ADJUDICATION OF WHICH THIS COURT
EXISTS. 

THE CONDITIONS THAT ARE INDISPENSABLE FOR ENABLING THIS COURT
ADEQUATELY TO DISCHARGE THE DUTIES IN ITS SPECIAL KEEPING CANNOT BE TOO
CONSCIOUSLY AND TOO PERSISTENTLY KEPT IN MIND.  THE FAR-REACHING AND
DELICATE PROBLEMS THAT CALL FOR THE ULTIMATE JUDGMENT OF THE NATION'S
HIGHEST TRIBUNAL REQUIRE VIGOR OF THOUGHT AND HIGH EFFORT, AND THEIR
CONSERVATION, EVEN FOR THE ABLEST JUDGES.  LISTENING TO ARGUMENTS,
EXAMINING RECORDS AND BRIEFS, ANALYZING THE ISSUES, INVESTIGATING
MATERIALS BEYOND WHAT PARTISAN COUNSEL OFFER, CONSTITUTE ONLY A
FRACTION OF WHAT GOES INTO THE JUDICIAL PROCESS OF THIS COURT. 

FOR ONE THING, THE TYPES OF CASES THAT NOW COME BEFORE THE COURT (AS
THE PRESENT UNITED STATES REPORTS COMPARED WITH THOSE OF EVEN A
GENERATION AGO BEAR AMPLE TESTIMONY) REQUIRE TO A CONSIDERABLE EXTENT
STUDY OF MATERIALS OUTSIDE THE LEGAL LITERATURE.  MORE IMPORTANT,
HOWEVER, THE JUDGMENTS OF THIS COURT ARE COLLECTIVE JUDGMENTS.  SUCH
JUDGMENTS PRESUPPOSE AMPLE TIME AND FRESHNESS OF MIND FOR PRIVATE STUDY
AND REFLECTION IN PREPARATION FOR DISCUSSION AT CONFERENCE.  WITHOUT
ADEQUATE STUDY THERE CANNOT BE ADEQUATE REFLECTION; WITHOUT ADEQUATE
REFLECTION THERE CANNOT BE ADEQUATE DISCUSSION; WITHOUT ADEQUATE
DISCUSSION THERE CANNOT BE THAT FRUITFUL INTERCHANGE OF MINDS WHICH IS
INDISPENSABLE TO THOUGHTFUL, UNHURRIED DECISION AND ITS FORMULATION IN
LEARNED AND IMPRESSIVE OPINIONS.  IT IS THEREFORE IMPERATIVE THAT THE
DOCKET OF THE COURT BE KEPT DOWN SO THAT ITS VOLUME DOES NOT PRECLUDE
WISE ADJUDICATION.  THIS CAN BE AVOIDED ONLY IF THE COURT RIGOROUSLY
EXLCUDES ANY CASE FROM COMING HERE THAT DOES NOT RISE TO THE
SIGNIFICANCE OF INESCAPABILITY IN MEETING THE RESPONSIBILITIES VESTED
IN THIS COURT. 

ADJUDICATION IS, OF COURSE, THE MOST EXACTING AND MOST TIME-CONSUMING
OF THE COURT'S LABORS; IT IS BY NO MEANS THE WHOLE STORY.  IN 1925 THE
CONGRESS, BY WITHDRAWING ALL BUT A FEW CATEGORIES OF CASES WHICH CAN
COME TO THE COURT AS A MATTER OF RIGHT, GAVE TO THE COURT POWER TO
CONTROL ITS DOCKET, TO CONTROL, THAT IS, THE VOLUME OF ITS BUSINESS. 
CONGRESS CONFERRED THIS DISCRETIONARY POWER ON THE COURT'S OWN URGING
THAT THIS WAS NECESSARY IF THE PROPER DISCHARGE OF THE COURT'S
INDISPENSABLE FUNCTIONS WERE TO BE RENDERED FEASIBLE.  THE PROCESS OF
SCREENING THOSE CASES WHICH ALONE JUSTIFY ADJUDICATION BY THE SUPREME
COURT IS IN ITSELF A VERY DEMANDING ASPECT OF THE COURT'S WORK.  THE
LITIGIOUS TENDENCY OF OUR PEOPLE AND THE UNWILLINGNESS OF LITIGANTS TO
REST CONTENT WITH ADVERSE DECISIONS AFTER THEIR CAUSE HAS BEEN
LITIGATED IN TWO AND OFTEN IN THREE COURTS, LEAD TO ATTEMPTS TO GET A
FINAL REVIEW BY THE SUPREME COURT IN LITERALLY THOUSANDS OF CASES WHICH
SHOULD NEVER REACH THE HIGHEST COURT OF THE LAND.  (FN31)  THE
EXAMINATION OF THE PAPERS IN THESE CASES, TO SIFT OUT THE FEW THAT
PROPERLY BELONG IN THIS COURT FROM THE VERY MANY THAT HAVE NO BUSINESS
HERE, IS A LABORIOUS PROCESS IN A COURT IN WHICH EVERY MEMBER IS
CHARGED AND PROPERLY CHARGED WITH MAKING AN INDEPENDENT EXAMINATION OF
THE RIGHT OF ACCESS TO THE COURT.  (FN32) 

EVERY TIME THE COURT GRANTS CERTIORARI IN DISREGARD OF ITS OWN
PROFESSED CRITERIA, IT INVITES DISREGARD OF THE RESPONSIBILITY OF
LAWYERS ENJOINED UPON THE BAR BY THE COURT'S OWN FORMAL RULES AND
PRONOUNCEMENTS.  IT IS IDLE TO PREACH OBEDIENCE TO THE JUSTIFYING
CONSIDERATIONS FOR FILING PETITIONS FOR CERTIORARI, WHICH MR. CHIEF
JUSTICE TAFT AND HIS SUCCESSORS AND OTHER MEMBERS OF THE COURT HAVE
IMPRESSIVELY ADDRESSED TO THE BAR YEAR AFTER YEAR, IF THE COURT ITSELF
DISREGARDS THE CODE OF CONDUCT BY WHICH IT SEEKS TO BIND THE
PROFESSION.  LAWYERS NOT UNNATURALLY HOPE TO DRAW A PRIZE IN THE
LOTTERY AND EVEN CONSCIENTIOUS LAWYERS WHO FEEL IT THEIR DUTY, AS
OFFICERS OF THE COURT, TO OBEY THE PAPER REQUIREMENTS OF A PETITION FOR
CERTIORARI, MAY FEEL OBLIGATED TO THEIR CLIENTS NOT TO ABSTAIN WHERE
OTHERS HAVE SUCCEEDED.  NO DOUBT THE MOST RIGOROUS ADHERENCE TO THE
CRITERIA FOR GRANTING CERTIORARI WILL NOT PREVENT TOO MANY HOPELESS
PETITIONS FOR CERTIORARI FROM BEING FILED.  BUT LAXITY BY THE COURT IN
RESPECTING ITS OWN RULES IS BOUND TO STIMULATE PETITIONS FOR CERTIORARI
WITH WHICH THE COURT SHOULD NEVER BE BURDENED. 

THEREFORE, EVER SINCE CONGRESS, IN 1891, ESTABLISHED THE COURTS OF
APPEALS AS THE CUSTOMARY TRIBUNAL FOR FINAL ADJUDICATION OF THE CLASS
OF CASES TO WHICH THE PRESENT BELONGS, THIS COURT HAS, AS A RULE, BEEN
RESOLUTE IN GUARDING AGAINST ABUSE OF ITS CLOSELY RESTRICTED
DISCRETIONARY CERTIORARI JURISDICITON.  DUE REGARD FOR OUR PRACTICE AND
FOR THE VITAL JURISDICTIONAL PRINCIPLE WHICH UNDERLIES IT, COMPELS THE
CONCLUSION THAT THIS WRIT OF CERTIORARI SHOULD NEVER HAVE ISSUED. 

HOWEVER, IF WE ARE TO REVIEW FACTS, WE MUST ESTABLISH AND ADHERE TO A
RATIONAL STANDARD OF REVIEW.   IN SO DOING WE CANNOT IGNORE THE
RELEVANCE TO THIS TASK OF THE MANY EXPRESSIONS OF THE IMPROPRIETY OF
SUCH REVIEW.  IF IT IS UNWISE FOR THIS COURT TO GRANT REVIEW OF CASES
TURNING SOLELY ON QUESTIONS OF FACT, HOW MUCH LESS WISE TO UNDERTAKE TO
REASSESS THE RECORD IN DISREGARD OF THE REASONED ASSESSMENT OF THE
EVIDENCE BY THE COURT OF APPEALS. 

"THE SAME CONSIDERATIONS THAT SHOULD LEAD US TO LEAVE UNDISTRUBED, BY
DENYING CERTIORARI, DECISIONS OF COURTS OF APPEALS INVOLVING SOLELY A
FAIR ASSESSMENT OF A RECORD ON THE ISSUE OF UNSUBSTANTIALITY, OUGHT TO
LEAD US TO DO NO MORE THAN DECIDE THAT THERE WAS SUCH A FAIR ASSESSMENT
WHEN THE CASE IS HERE, AS THIS IS, ON OTHER LEGAL ISSUES. 

"THIS IS NOT THE PLACE TO REVIEW A CONFLICT OF EVIDENCE NOR TO
REVERSE A COURT OF APPEALS BECAUSE WERE WE IN ITS PLACE WE WOULD FIND
THE RECORD TILTING ONE WAY RATHER THAN THE OTHER, THOUGH FAIR-MINDED
JUDGES COULD FIND IT TILTING EITHER WAY."  (FN33) 

IT IS THE STAPLE BUSINESS OF COURTS OF APPEALS TO EXAMINE RECORDS FOR
THE SUFFICIENCY OF EVIDENCE.   TO UNDERTAKE AN INDEPENDENT REVIEW OF
THE REVIEW BY THE COURT OF APPEALS OF EVIDENCE IS NEITHER OUR FUNCTION
NOR WITHIN OUR SPECIAL APTITUDE THROUGH CONSTANT PRACTICE.  SUCH
DISREGARD OF SOUND JUDICIAL ADMINISTRATION IS EMPHASIZED BY THE FACT
THAT THE JUDGES OF THE COURT OF APPEALS ARE, BY THE VERY NATURE OF THE
BUSINESS WITH WHICH THEY DEAL, FAR MORE EXPERIENCED THAN WE IN DEALING
WITH EVIDENCE, ASCERTAINING THE FACTS, AND DETERMINING THE SUFFICIENCY
OF EVIDENCE TO GO TO A JURY.  (FN34)  IF DUE REGARD BE PAID TO THE
WEIGHING OF CONFLICTING EVIDENCE AND INFERENCES DRAWN THEREFROM BY
THESE EXPERIENCED JUDGES, CAN IT BE FAIRLY SAID THAT THERE WAS NO
REASONED JUSTIFICATION FOR THEIR CONCLUSION AND THAT THEIR JUDGMENT WAS
BASELESS?  IF NOT, WE SHOULD LEAVE UNDISTURBED THE JUDGMENT BELOW. 
(FN35)  AFTER ALL, WE ARE REVIEWING THE JUDGMENT OF THE COURT OF
APPEALS, AND IT IS ITS JUDGMENT THAT MUST BE SUBJECTED TO THE RULE OF
REASON.  COMPARISON OF THE COURT OF APPEALS' OPINION WITH THE RECORD
MADE AT THE TRIAL MANIFESTS SCRUPULOUS DEFERENCE TO THE LOCAL LAW OF
NORTH DAKOTA, AS PRONOUNCED BY ITS SUPREME COURT, AND UNMISTAKABLE CARE
BY THE COURT OF APPEALS IN CONSIDERING ALL THE EVIDENCE AND THE
INFERENCES WHICH THE EVIDENCE REASONABLY YIELDS.  WHETHER WE AGREE OR
DISAGREE WITH ITS EVALUATION OF THE EVIDENCE, A TOLERANT JUDGMENT CAN
SURELY NOT CONCLUDE THAT IT DOES NOT REPRESENT A FAIR, JUDICIAL
DETERMINATION.  IF WE ARE TO CONSIDER THE MERITS OF THE CASE, I WOULD
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS.    FN1  E.G., MARYLAND V.
BALTIMORE RADIO SHOW, INC., 338 U.S. 912; BONDHOLDERS, INC., V. POWELL,
342 U.S. 921; CHEMICAL BANK & TRUST CO. V. GROUP OF INSTITUTIONAL
INVESTORS, 343 U.S. 982; ROSENBERG V. UNITED STATES, 344 U.S. 889. 

FN2  ACT OF MARCH 3, 1891, 26 STAT. 826 (COMMONLY KNOWN AS THE EVARTS
OR CIRCUIT COURTS OF APPEALS ACT). 

FN3 H.R. REP. NO. 1295, 51ST CONG., 1ST SESS. 3. 

FN4  IBID. 

FN5  SEE 21 CONG. REC. 3403-3405, 10220-10222; 22 CONG. REC. 3585. 

FN6  IBID. 

FN7  26 STAT. 828. 

FN8  21 CONG. REC. 10221. 

FN9  26 STAT. 828. 

FN10  SEE THE EXPRESSIONS OF THE NECESSITY OF RESTRAINT IN GRANTING
WRITS OF CERTIORARI WHICH THE COURT VOICED IN LAU OW BEW, 141 U.S. 583;
IN RE WOODS, 143 U.S. 202; LAU OW BEW V. UNITED STATES, 144 U.S. 47;
AMERICAN CONSTRUCTION CO. V. JACKSONVILLE, T.&K.W.R. CO., 148 U.S. 372;
FORSYTH V. HAMMOND, 166 U.S. 506; FIELDS V. UNITED STATES, 205 U.S.
292; UNITED STATES V. RIMER, 220 U.S. 547.  ON MARCH 27, 1893, TWO
YEARS AFTER THE ENACTMENT OF THE EVARTS ACT, THE COURT COULD WRITE THAT
ONLY TWO PETITIONS FOR CERTIORARI HAD BEEN GRANTED.  AMERICAN
CONSTRUCTION CO. V. JACKSONVILLE, T.&K.W.R. CO., SUPRA, AT 383. 

FN11  SEE CASES CITED, NOTE 10, SUPRA. 

FN12  FORSYTH V. HAMMOND, 166 U.S. 506, 513. 

FN13  ID., AT 514-515. 

FN14  IN RICE V. SIOUX CITY MEMORIAL PARK CEMETERY, INC., 349 U.S.
70, AFTER LISTING SOME SIXTY RELEVANT CASES, THIS COURT SAID: 

"ONLY IN THE LIGHT OF ARGUMENT ON THE MERITS DID IT BECOME CLEAR IN
THESE NUMEROUS CASES THAT THE PETITIONS FOR CERTIORARI SHOULD NOT HAVE
BEEN GRANTED.  IN SOME INSTANCES AN ASSERTED CONFLICT TURNED OUT TO BE
ILLUSORY; IN OTHERS, A FEDERAL QUESTION WAS WANTING OR DECISION COULD
BE RESTED ON A NON-FEDERAL GROUND; IN A NUMBER, IT BECAME MANIFEST THAT
THE QUESTION WAS OF IMPORTANCE MERELY TO THE LITIGANTS AND DID NOT
PRESENT AN ISSUE OF IMMEDIATE PUBLIC SIGNIFICANCE."  349 U.S., AT 79,
NOTE 2. 

IN AN EARLIER CASE MR. JUSTICE STONE, IN A DISSENT JOINED BY MR.
JUSTICE BRANDEIS, HAD WRITTEN: 

"IT THUS APPEARS THAT THE CONSTRUCTION OF THE STATUTE WHICH WE WERE
ASKED TO REVIEW IS NOT IN THE CASE, AND EVEN IF IT WERE, IT IS OF LOCAL
SIGNIFICANCE ONLY.  THE CONFLICT OF DECISIONS ASSERTED IS NOT SHOWN. 
PLAINLY THE QUESTION IS NOT OF SUCH GENERAL INTEREST OR IMPORTANCE AS
UNDER THE RULES AND PRACTICE OF THIS COURT WARRANTS ITS REVIEW UPON
CERTIORARI.  FOR THESE REASONS IT IS THE DUTY OF THIS COURT TO DISMISS
THE WRIT AS IMPROVIDENTLY GRANTED."  WASHINGTON FIDELITY NATIONAL INS.
CO. V. BURTON, 287 U.S. 97, 100, 101-102.  SEE ALSO UNITED STATES V.
KNIGHT, 336 U.S. 505, 509 (DISSENTING OPINION).  NOR NEED WE RUMMAGE IN
THE RECESSES OF OUR MEMORIES:  SEE TRIPLETT V. IOWA, 357 U.S. 217;
HINKLE V. NEW ENGLAND MUTUAL INS. CO., 358 U.S. 65; JOSEPH V. INDIANA,
359 U.S. 117. 

FN15  SEE HOUSTON OIL CO. V. GOODRICH, 245 U.S. 440.  IN LUTCHER &
MOORE LUMBER CO. V. KNIGHT, 217 U.S. 257, 267-268, THE COURT SAID:
"THE GREAT PURPOSE OF THE ACT OF 1891, HOWEVER, TO WHICH ALL ITS
PROVISIONS ARE SUBSERVIENT, IS TO DISTRIBUTE THE JURISDICTION OF THE
COURTS OF THE UNITED STATES, AND THUS TO RELIEVE THE DOCKET OF THIS
COURT BY CASTING UPON THE CIRCUIT COURTS OF APPEAL THE DUTY OF FINALLY
DECIDING THE CASES OVER WHICH THE JURISDICTION OF THOSE COURTS IS BY
THE ACT MADE FINAL.  THE POWER TO CERTIORARI IN ACCORDANCE WITH THE
ACT, IN ITS ESSENCE, IS ONLY A MEANS TO THE END THAT THIS IMPERATIVE
AND RESPONSIBLE DUTY MAY BE ADEQUATELY PERFORMED." 

FN16  ACT OF SEPT. 6, 1916, SEC. 3, 39 STAT. 727. 

FN17 S. REP. NO. 775, 64TH CONG., 1ST SESS. 3.  SEE ALSO H.R. REP.
NO. 794, 64TH CONG., 1ST SESS. 3.

FN18  ACT OF FEB. 13, 1925, 43 STAT. 936. 

FN19  FOR A SUMMARY OF THE HISTORY OF THE BILL SEE FRANKFURTER AND
LANDIS, THE BUSINESS OF THE SUPREME COURT, 273-280.  THE AUTHORS ALSO
ANALYZE THE ACT.  ID., AT 280-294. 

FN20  HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES ON H.R. 10479, 67TH CONG., 2D SESS.; HEARING BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY ON S. 2060 AND S.
2061, 68TH CONG., 1ST SESS.; HEARING BEFORE THE COMMITTEE ON THE
JUDICIARY OF THE HOUSE OF REPRESENTATIVES ON H.R. 8206, 68TH CONG., 2D
SESS. 

FN21  HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES ON H.R. 10479, 67TH CONG., 2D SESS. 2.  WRITING FOR THE
COURT IN MAGNUM IMPORT CO. V. COTY, 262 U.S. 159, 163, MR. CHIEF
JUSTICE TAFT SAID:  "THE JURISDICTION TO REVIEW DECISIONS OF THE COURTS
OF APPEALS WAS NOT CONFERRED UPON THIS COURT MERELY TO GIVE THE
DEFEATED PARTY IN THE CIRCUIT COURT OF APPEALS ANOTHER HEARING." 

FN22  H.R. REP. NO. 1075, 68TH CONG., 2D SESS. 2. 

FN23  66 CONG. REC. 2755. 

FN24  ID., AT 2920. 

FN25  TAFT, THE JURISDICTION OF THE SUPREME COURT UNDER THE ACT OF
FEBRUARY 13, 1925, 35 YALE L.J. 1, 2 (1925). 

FN26  HEARING BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY ON S. 2060 AND S. 2061, 68TH CONG., 1ST SESS. 31. 

FN27  PRINTED IN S. REP. NO. 711, 75TH CONG., 1ST SESS. 40. 

FN28  SMITH V. REINAUER OIL TRANSPORT, INC., 256 F.2D 646, 649. 

NEGLIGENCE LITIGATION OCCUPIES A SUBSTANTIAL PORTION OF THE TIME OF
FEDERAL DISTRICT JUDGES.  "DURING THE LAST YEAR I MYSELF HAVE
CALCULATED WITH SOME CARE THAT OVER HALF THE DAYS WHEN I WAS TAKING
EVIDENCE, I WAS TAKING EVIDENCE IN CASES INVOLVING NEGLIGENCE, EITHER
DIVERSITY JURISDICTION CASES, JONES ACT, FELA, FEDERAL TORT CLAIM, OR
THE LOT."  JUDGE CHARLES E. WYZANSKI, JR., PROCEEDINGS OF THE ATTORNEY
GENERAL'S CONFERENCE ON COURT CONGESTION (1958), 137.  EVERY NEGLIGENCE
CASE, WHEN TRIED BEFORE A JURY, NECESSITATES A DECISION ON SUFFICIENCY
OF EVIDENCE FOR SUBMISSION TO A JURY.  IN MANY CASES IT IS THE ONLY
ISSUE.  WE OUGHT NOT, WITH DUE REGARD TO OUR SPECIAL FUNCTIONS,
ENCOURAGE THE BRINGING OF SUCH CASES HERE.  WE COULD NOT POSSIBLY
REVIEW ALL THE CASES SOUGHT TO BE BROUGHT HERE.  BUT IF WE OCCASIONALLY
REVIEW SUCH A CASE, WE DISCRIMINATE AGAINST THE OTHERS, SINCE NO
RATIONAL CLASSIFICATION CAN JUSTIFY TAKING ONE BUT NOT ALL.  THAT IS
WHY ALL ARE APPEALABLE TO THE COURTS OF APPEALS. 

FN29  GALLOWAY V. UNITED STATES, 319 U.S. 372, 395. 

FN30  RULE 19, RULES OF THE SUPREME COURT OF THE UNITED STATES. 

FN31  IN THE LAST THREE TERMS OF COURT PRECEDING THE CURRENT TERM
THERE WERE FILED, RESPECTIVELY, 1,382, 1,473, AND 1,407 PETITIONS FOR
CERTIORARI ON THE APPELLATE AND MISCELLANEOUS DOCKETS. 

FN32  "WE HAVE TO CONSIDER THE CERTIORARI BECAUSE IT WAS ONLY AFTER
EFFORT THAT WE GOT A BILL PASSED THAT MAKES AN APPEAL TO OUR COURT
DEPENDENT UPON OUR DISCRETION IN MANY CASES IN WHICH UNTIL LATELY IT
WAS MATTER OF RIGHT.  LET IT EVER BE UNDERSTOOD THAT THE PRELIMINARY
JUDGMENT WAS DELEGATED, I SHOULD EXPECT THE LAW TO BE CHANGED BACK
AGAIN VERY QUICKLY WITH THE RESULT THAT WE SHOULD HAVE TO HEAR MANY
CASES THAT HAVE NO RIGHT TO OUR TIME; AS IT IS WE BARELY KEEP UP WITH
THE WORK."  MR. JUSTICE HOLMES, WRITING UNDER DATE OF AUGUST 30, 1929,
TO SIR FREDERICK POLLOCK, 2 HOLMES-POLLOCK LETTERS (HOWE ED 1941) 251. 

FN33  LABOR BOARD V. PITTSBURGH S.S. CO., 340 U.S. 498, 502-503.  SEE
ALSO LABOR BOARD V. AMERICAN NATIONAL INS. CO., 343 U.S. 395, 409-410;
MCALLISTER V. UNITED STATES, 348 U.S. 19, 24 (SEPARATE OPINION). 

FN34  THE CIRCUIT JUDGES WHO DECIDED THIS CASE HAVE HAD THE FOLLOWING
JUDICIAL EXPERIENCE: 

JUDGE SANBORN:  DISTRICT COURT OF MINNESOTA, 1922-1925; UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MINNESOTA, 1925-1932; UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT, SINCE 1932. 

JUDGE WOODROUGH:  COUNTY COURT, WARD COUNTY, TEXAS, 1894-1896; UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA, 1916-1933; UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, SINCE 1933. 

JUDGE JOHNSEN:  SUPREME COURT OF NEBRASKA, 1939-1940; UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT, SINCE 1940. 

IF A CLAIM WERE MADE THAT THE COURT OF APPEALS HAD "DEPARTED FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS," RULE 19, RULES OF
THE SUPREME COURT OF THE UNITED STATES, THAT IT HAD, FOR INSTANCE,
MANIFESTED A STRONG BIAS FOR OR AGAINST A PARTICULAR CLASS OF
LITIGANTS, A PROPER CASE WOULD BE PRESENTED FOR "AN EXERCISE OF THIS
COURT'S POWER OF SUPERVISION."  RULE 19, RULES OF THE SUPREME COURT OF
THE UNITED STATES.  NO SUGGESTION HAS BEEN MADE THAT THE DECISION OF
THE COURT OF APPEALS REFLECTED A BIAS IN FAVOR OF AN INSURANCE
COMPANY.  ON THE CONTRARY, ANIMADVERSION AGAINST THE COMPLETE
DISINTERESTEDNESS OF THE COURT WAS DISAVOWED AT THE BAR. 

FN35  SEE FEDERAL TRADE COMM'N V. AMERICAN TOBACCO CO., 274 U.S.
543. 
..END :





T.I.M.E. INCORPORATED V. UNITED STATES 359 U.S. 464 


NO. 68.  ARGUED JANUARY 20, 1959 - DECIDED MAY 18, 1959* - 252 F.2D 178
AND 104 U.S. APP. D.C. 72, 259 F.2D 802, REVERSED. 

*TOGETHER WITH NO. 96, DAVIDSON TRANSFER & STORAGE CO., INC., V.
UNITED STATES, ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT. 


A SHIPPER OF GOODS BY A MOTOR CARRIER CERTIFICATED BY THE INTERSTATE
COMMERCE COMMISSION UNDER THE MOTOR CARRIER ACT OF 1935 CANNOT
CHALLENGE IN POST-SHIPMENT LITIGATION THE REASONABLENESS OF THE
CARRIER'S PAST CHARGES, WHICH WERE MADE IN ACCORDANCE WITH THE
APPLICABLE TARIFFS FILED UNDER SEC. 217 OF THE ACT.  PP. 465-480. 

(A)  THE STRUCTURE AND HISTORY OF PART II OF THE INTERSTATE COMMERCE
ACT (THE MOTOR CARRIER ACT) - WHEN COMPARED WITH PARTS I AND III, WHICH
EXPRESSLY GRANT SUCH RIGHTS TO SHIPPERS BY RAIL AND WATER - LEAD TO THE
CONCLUSION THAT SECS. 216(B) AND (D) WERE NOT INTENDED TO GIVE SHIPPERS
BY MOTOR CARRIERS A STATUTORY CAUSE OF ACTION FOR RECOVERY OF PAST
CHARGES AT ALLEGEDLY UNREASONABLE RATES OR TO ENABLE THEM TO ASSERT
"UNREASONABLENESS" AS A DEFENSE IN SUITS BY MOTOR CARRIERS TO RECOVER
PAST CHARGES AT APPLICABLE TARIFF RATES.  PP. 468-472. 

(B)  THE MOTOR CARRIER ACT DOES NOT CONTEMPLATE THAT SHIPPERS SHALL
HAVE A RIGHT AT COMMON LAW TO DISPUTE IN COURT LITIGATION THE
REASONABLENESS OF PAST CHARGES AT APPLICABLE TARIFF RATES SUBJECT TO
DETERMINATION OF THE ISSUE OF REASONABLENESS BY REFERRAL TO THE
COMMISSION.  PP. 472-480. 

T.I.M.E. INCORPORATED V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE INTERSTATE MOTOR COMMON CARRIERS, CERTIFICATED BY THE
INTERSTATE COMMERCE COMMISSION (I.C.C.)  UNDER THE MOTOR CARRIER ACT OF
1935.  (FN1)  SECTION 217 OF THAT ACT, 49 U.S.C. SEC. 317, REQUIRES
SUCH CARRIERS TO FILE THEIR TRANSPORTATION CHARGES AS TARIFFS WITH THE
I.C.C. THESE TARIFFS REMAIN EFFECTIVE UNTIL SUSPENDED OR CHANGED IN
ACCORDANCE WITH SPECIFIED PROCEDURES, AND SO LONG AS THEY ARE EFFECTIVE
CARRIERS ARE FORBIDDEN TO CHARGE OR COLLECT ANY RATE OTHER THAN THAT
PROVIDED IN THE APPLICABLE TARIFF.  (FN2) 

THESE CASES PRESENT IN COMMON A SINGLE QUESTION UNDER THE MOTOR
CARRIER ACT:  CAN A SHIPPER OF GOODS BY A CERTIFICATED MOTOR CARRIER
CHALLENGE IN POST-SHIPMENT LITIGATION THE REASONABLENESS OF THE
CARRIER'S CHARGES WHICH WERE MADE IN ACCORDANCE WITH THE TARIFF
GOVERNING THE SHIPMENT? 

IN NO. 68, T.I.M.E. TRANSPORTED SEVERAL SHIPMENTS OF SCIENTIFIC
INSTRUMENTS FOR THE UNITED STATES FROM OKLAHOMA TO CALIFORNIA.  ONE OF
THE SHIPMENTS, ILLUSTRATIVE OF ALL INVOLVED IN THIS LITIGATION,
ORIGINATED AT MARION, OKLAHOMA, AND WAS CARRIED OVER THE LINES OF
PETITIONER AND A CONNECTING CARRIER TO PLANEHAVEN, CALIFORNIA.  AT THE
TIME, THE PETITIONING CARRIER HAD ON FILE WITH THE I.C.C. A TARIFF
RELATING TO SUCH SHIPMENTS WHICH SPECIFIED A THROUGH RATE FROM MARION
TO PLANEHAVEN OF $10.74 PER HUNDREDWEIGHT.  PETITIONER WAS ALSO SUBJECT
TO TARIFFS WHICH PROVIDED A RATE OF $2.56 PER HUNDREDWEIGHT FROM MARION
TO EL PASO, TEXAS, AND OF $4.35 PER HUNDREDWEIGHT FROM EL PASO TO
PLANEHAVEN.  THE THROUGH RATE THUS EXCEEDED THE COMBINATION RATE BY
$3.38.  T.I.M.E. CHARGED AND COLLECTED ON THE BASIS OF THE THROUGH
RATE.  ON POSTPAYMENT AUDIT BY THE GENERAL ACCOUNTING OFFICE UNDER SEC.
322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, 49 U.S.C. SEC. 66,
THAT OFFICE CONCLUDED THAT THE COMBINATION RATHER THAN THE THROUGH RATE
WAS APPLICABLE TO THIS SHIPMENT AND REQUIRED T.I.M.E. TO REFUND THE
DIFFERENCE BETWEEN THE SUM COLLECTED UNDER THE THROUGH TARIFF AND THAT
WHICH WOULD HAVE BEEN DUE UNDER THE COMBINATION TARIFFS.  THIS T.I.M.E.
DID UNDER PROTEST. 

THEREAFTER T.I.M.E. BROUGHT SUIT UNDER THE TUCKER ACT, 28 U.S.C. SEC.
1346(A)(2), CLAIMING THAT THE THROUGH TARIFF WAS APPLICABLE TO THE
SHIPMENT AND THAT IT WAS THUS ENTITLED TO RECOVER THE DIFFERENCE
BETWEEN THE THROUGH AND COMBINATION RATES.  THE GOVERNMENT DEFENDED ON
THE GROUND THAT THE COMBINATION RATE WAS APPLICABLE, AND ALTERNATIVELY
CONTENDED THAT IF THE THROUGH TARIFF WERE APPLICABLE THE RATE SPECIFIED
THEREIN WAS UNREASONABLY HIGH INSOFAR AS IT EXCEEDED THE COMBINATION
RATE.  IT ASKED THAT T.I.M.E.'S SUIT BE STAYED TO PERMIT THE GOVERNMENT
TO BRING A PROCEEDING BEFORE THE I.C.C. TO DETERMINE THE REASONABLENESS
OF THE THROUGH RATE.  THE DISTRICT COURT IN AN UNREPORTED OPINION HELD
THAT THE THROUGH RATE WAS APPLICABLE, AND THAT NEITHER IT NOR THE
I.C.C. HAD POWER TO PASS UPON THE GOVERNMENT'S CONTENTION THAT SUCH
RATE WAS AS TO THE PAST UNREASONABLE.  ACCORDINGLY, THE DISTRICT COURT
ENTERED SUMMARY JUDGMENT FOR T.I.M.E. 

THE GOVERNMENT APPEALED, ACCEPTING THE DISTRICT COURT'S DETERMINATION
AS TO THE APPLICABILITY OF THE THROUGH RATE, BUT CONTENDING THAT THE
DISTRICT COURT HAD ERRED IN REFUSING TO REFER TO THE I.C.C. THE ISSUE
OF THE REASONABLENESS OF THAT RATE AS TO PAST SHIPMENTS.  THE COURT OF
APPEALS REVERSED, HOLDING THAT THE GOVERNMENT WAS ENTITLED TO AN I.C.C.
DETERMINATION UPON THE QUESTION OF REASONABLENESS, AND THAT THE FACT
THAT THE MOTOR CARRIER ACT GIVES THE I.C.C.  NO POWER TO AWARD
REPARATIONS AS TO ADMITTEDLY GOVERNING PAST RATES DOES NOT PREVENT THAT
BODY FROM PASSING ON THE QUESTION OF PAST REASONABLENESS WHEN THAT
ISSUE ARISES IN LITIGATION IN THE COURTS.  252 F.2D 178. 

IN NO. 96, PETITIONER DAVIDSON TRANSPORTED FOUR SHIPMENTS OF GOODS
FOR THE UNITED STATES FROM POUGHKEEPSIE, N.Y., TO BELLBLUFF, VA., AND
BILLED THE UNITED STATES ON THE BASIS OF CONCEDEDLY APPLICABLE FILED
TARIFFS.  ON POSTPAYMENT AUDIT THE GENERAL ACCOUNTING OFFICE CONCLUDED
THAT A PART OF THESE CHARGES WAS UNREASONABLE AND SHOULD BE REFUNDED TO
THE UNITED STATES.  (FN3)  DAVIDSON REFUNDED UNDER PROTEST THE SUM
DEMANDED, WHICH AMOUNTED TO $18.34, AND THEN BROUGHT SUIT UNDER THE
TUCKER ACT TO RECOVER THE REFUND.  THE GOVERNMENT DEFENDED ON THE SOLE
GROUND THAT THE APPLICABLE RATE HAD BEEN UNREASONABLE.  THE DISTRICT
COURT, WITHOUT OPINION, GRANTED DAVIDSON SUMMARY JUDGMENT, BUT ON THE
GOVERNMENT'S APPEAL THE JUDGMENT WAS REVERSED, THE COURT OF APPEALS
HOLDING THAT THE GOVERNMENT COULD DEFEND ON "UNREASONABLENESS" GROUNDS,
AND DIRECTING A REFERRAL TO THE I.C.C. OF THE ISSUE AS TO THE
REASONABLENESS OF THE RATE IN QUESTION.  104 U.S. APP. D.C. 72, 259
F.2D 802. 

WE GRANTED CERTIORARI IN BOTH CASES BECAUSE OF THE SUGGESTION THAT
THE RESULT REACHED BY THE COURTS OF APPEALS CONFLICTED WITH THIS
COURT'S DECISION IN MONTANA-DAKOTA UTILITIES CO. V. NORTHWESTERN PUB.
SERV. CO., 341 U.S. 246, AND IN ORDER TO SETTLE THE QUESTIONS OF
STATUTORY INTERPRETATION INVOLVED.  (FN4)  358 U.S. 810. 

THE COURTS BELOW HELD THAT THE RIGHT OF THE UNITED STATES TO RESIST
ON THE GROUND OF UNREASONABLENESS THE PAYMENT OF THE CHARGES INCURRED
BY IT WAS ONE DERIVING FROM THE COMMON LAW AND PRESERVED BY SEC. 216(J)
OF THE MOTOR CARRIER ACT.  (FN5)  IN THIS COURT THE GOVERNMENT,
ALTHOUGH DEFENDING THIS GROUND OF DECISION, RELIES PRIMARILY ON THE
PROPOSITION THAT THE MOTOR CARRIER ACT ITSELF CREATES A JUDICIALLY
ENFORCEABLE RIGHT IN A SHIPPER TO BE FREE FROM THE EXACTION OF
UNREASONABLE CHARGES AS TO PAST SHIPMENTS EVEN THOUGH SUCH CHARGES
REFLECT APPLICABLE RATES DULY FILED WITH THE I.C.C.  THE GOVERNMENT
CONCEDES THAT WHATEVER THE SOURCE OF THE ASSERTED RIGHT MAY BE, THE
QUESTION OF THE REASONABLENESS OF PAST RATES CANNOT ITSELF BE DECIDED
IN THE COURTS, BUT TAKES THE POSITION THAT WHEN SUCH QUESTION ARISES IN
COURT LITIGATION IT MAY PROPERLY BE REFERRED TO THE I.C.C. FOR
DECISION, AND THE RESULTS OF THAT ADJUDICATION USED TO DETERMINE THE
RESPECTIVE RIGHTS OF THE LITIGANTS. 

I. 

THE CONTENTION THAT THE MOTOR CARRIER ACT ITSELF CREATES A CAUSE OF
ACTION OR AFFORDS A DEFENSE WITH RESPECT TO THE RECOVERY OF
UNREASONABLE RATES RESTS ON THE PROVISIONS OF SECS. 216(B) AND (D) OF
THE ACT, 49 U.S.C. SECS. 316(B), (D), WHICH PROVIDE AS TO INTERSTATE
MOTOR CARRIERS: 

"(B)  IT SHALL BE THE DUTY OF EVERY (SUCH) COMMON CARRIER  ...  TO
ESTABLISH, OBSERVE, AND ENFORCE JUST AND REASONABLE RATES, CHARGES, AND
CLASSIFICATIONS, AND JUST AND REASONABLE REGULATIONS AND PRACTICES
RELATING THERETO  ...  . 

     *         *         *   *         * 

"(D)  ALL CHARGES MADE FOR ANY SERVICE RENDERED OR TO BE RENDERED BY
ANY (SUCH) COMMON CARRIER ...  SHALL BE JUST AND REASONABLE, AND EVERY
UNJUST AND UNREASONABLE CHARGE FOR SUCH SERVICE OR ANY PART THEREOF, IS
PROHIBITED AND DECLARED TO BE UNLAWFUL  ...  ." 

THE GOVERNMENT URGES THAT THIS LANGUAGE IMPOSES A STATUTORY DUTY ON
MOTOR CARRIERS NOT TO CHARGE OR COLLECT OTHER THAN "REASONABLE" RATES,
AND ASKS US TO IMPLY A CAUSE OF ACTION UNDER THE MOTOR CARRIER ACT FOR
ANY SHIPPER INJURED BY VIOLATION OF THAT DUTY.  WE CANNOT AGREE. 

AS THIS COURT RECOGNIZED IN MONTANA-DAKOTA UTILITIES CO. V.
NORTHWESTERN PUB. SERV. CO., 341 U.S. 246, 251, LANGUAGE OF THIS SORT
IN A STATUTE WHICH ENTRUSTS RATE REGULATION TO AN ADMINISTRATIVE AGENCY
IN ITSELF CREATES ONLY A "CRITERION FOR ADMINISTRATIVE APPLICATION IN
DETERMINING A LAWFUL RATE" RATHER THAN A "JUSTICIABLE LEGAL RIGHT."  IN
MONTANA-DAKOTA IT WAS HELD THAT THE FEDERAL POWER ACT, WHICH LIKE THE
MOTOR CARRIER ACT EXPRESSLY DECLARES UNREASONABLE RATES TO BE
"UNLAWFUL," (FN6) DOES NOT CREATE A CAUSE OF ACTION FOR THE RECOVERY OF
ALLEGEDLY UNREASONABLE PAST RATES.  IN THE ABSENCE OF ANY INDICATION
THAT CONGRESS INTENDED THAT DESPITE THE ABSENCE OF ANY REPARATIONS
POWER IN THE FEDERAL POWER COMMISSION THE FEDERAL COURTS SHOULD
ENTERTAIN SUITS FOR REPARATION OF UNREASONABLE RATES, AND REFER TO THE
COMMISSION THE CONTROLLING ISSUE OF PAST UNREASONABLENESS, THE COURT
DECLINED TO PERMIT THE COMMISSION TO ACCOMPLISH INDIRECTLY THROUGH SUCH
A PROCEEDING THAT WHICH CONGRESS DID NOT ALLOW IT TO ACCOMPLISH
DIRECTLY. 

IT IS TRUE THAT UNDER PARTS I AND III OF THE INTERSTATE COMMERCE ACT,
RELATING RESPECTIVELY TO RAIL AND WATER CARRIERS, A SHIPPER MAY
LITIGATE AS TO THE REASONABLENESS OF PAST CHARGES EVEN IF THOSE CHARGES
WERE BASED ON THE APPLICABLE AND EFFECTIVE FILED RATES.  THE STRUCTURE
AND HISTORY OF PART II (THE MOTOR CARRIER ACT), HOWEVER, LEAD TO THE
CONCLUSION THAT HERE, AS IN THE FEDERAL POWER ACT, CONGRESS DID NOT
INTEND TO GIVE SHIPPERS A STATUTORY CAUSE OF ACTION FOR THE RECOVERY OF
ALLEGEDLY UNREASONABLE PAST RATES, OR TO ENABLE THEM TO ASSERT
"UNREASONABLENESS" AS A DEFENSE IN CARRIER SUITS TO RECOVER APPLICABLE
TARIFF RATES. 

THE VERY PROVISIONS OF PART I, AND THEIR COUNTERPARTS IN PART III,
WHICH GIVE A RIGHT OF ACTION TO SHIPPERS AGAINST CARRIERS FOR DAMAGES
INCURRED BY CARRIER VIOLATIONS OF THE ACT AND PROVIDE THE MECHANICS FOR
THE ENFORCEMENT OF THAT RIGHT ARE CONSPICUOUSLY ABSENT IN THE MOTOR
CARRIER ACT.  THUS, WHEREAS SEC. 8 OF PART I (FN7) PROVIDES THAT "ANY
COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS CHAPTER (WHO) SHALL DO
...  ANY ACT  ...  IN THIS CHAPTER  ...  DECLARED TO BE UNLAWFUL  ...
SHALL BE LIABLE TO THE PERSON OR PERSONS INJURED THEREBY FOR THE FULL
AMOUNT OF THE DAMAGES SUSTAINED  ... ," PART II HAS NO COMPARABLE
PROVISION.  AGAIN, WHEREAS SEC. 9 OF PART I (FN8) GIVES AN INJURED
SHIPPER THE RIGHT TO SUE IN THE I.C.C. OR IN THE FEDERAL DISTRICT
COURT, PART II CONTAINS NO COMPARABLE PROVISION.  IN ADDITION, SECS.
13(1) AND 16 OF PART I (FN9) GIVE A SHIPPER CLAIMING REPARATION THE
RIGHT TO PROCEED IN THE COMMISSION AND TO ENFORCE HIS REPARATION AWARD
IN THE COURTS, AND PART II CONTAINS NO COMPARABLE PROVISIONS. 

TO HOLD THAT THE MOTOR CARRIER ACT NEVERTHELESS GIVES SHIPPERS A
RIGHT OF REPARATION WITH RESPECT TO ALLEGEDLY UNREASONABLE PAST FILED
TARIFF RATES WOULD REQUIRE A COMPLETE DISREGARD OF THESE SIGNIFICANT
OMISSIONS IN PART II OF THE VERY PROVISIONS WHICH ESTABLISH AND
IMPLEMENT A SIMILAR RIGHT AS AGAINST RAIL CARRIERS IN PART I. WE FIND
IT IMPOSSIBLE TO IMPUTE TO CONGRESS AN INTENTION TO GIVE SUCH A RIGHT
TO SHIPPERS UNDER THE MOTOR CARRIER ACT WHEN THE VERY SECTIONS WHICH
ESTABLISHED THAT RIGHT IN PART I WERE WHOLLY OMITTED IN THE MOTOR
CARRIER ACT. 

FURTHER, THE I.C.C. ITSELF HAS CONSISTENTLY RECOGNIZED THAT NOTHING
IN PART II CREATES A STATUTORY LIABILITY ON THE PART OF THE CARRIER FOR
PAST ALLEGEDLY UNREASONABLE FILED RATES.  IN THE HEARINGS WHICH
PRECEDED THE PASSAGE OF LEGISLATION IN 1949 ADDING TO THE MOTOR CARRIER
ACT A STATUTE OF LIMITATIONS ON SUITS TO RECOVER AMOUNTS PAID TO
CARRIERS IN EXCESS OF APPLICABLE FILED RATES, PROPOSALS WERE ALSO MADE
TO AMEND THE STATUTE BY ADDING TO IT PROVISIONS SIMILAR TO THOSE
ALREADY FOUND IN SECS. 8, 9, 13, AND 16 OF PART I. THE COMMISSION NOTED
THAT THE PROPOSAL "WOULD ADD TO THE INTERSTATE COMMERCE ACT A NUMBER OF
NEW SECTIONS WHICH WOULD MAKE COMMON CARRIERS BY MOTOR VEHICLE ...
LIABLE FOR THE PAYMENT OF DAMAGES TO PERSONS INJURED BY THEM THROUGH
VIOLATIONS OF THE ACT.  AT PRESENT THIS LIABILITY EXISTS ONLY IN
RESPECT OF CARRIERS SUBJECT TO PARTS I AND III  ...  ."  (FN10)  THE
SUGGESTED CHANGES WERE NOT ADOPTED.  AND IN 1957 THE COMMISSION AGAIN
RECOMMENDED AMENDMENT OF THE MOTOR CARRIER ACT TO PROVIDE A REMEDY FOR
VIOLATION OF THE STATUTE TO PERSONS INJURED THEREBY, (FN11) AND ONCE
MORE THE MEASURE FAILED OF ADOPTION. 

IN LIGHT OF THE STATUTE AND ITS HISTORY, IT IS PLAIN THAT IF A
SHIPPER HAS A "JUSTICIABLE LEGAL RIGHT" TO RECOVER OR RESIST PAST MOTOR
CARRIER CHARGES ALLEGED TO HAVE BEEN UNREASONABLE, IT IS NECESSARY TO
LOOK BEYOND THE MOTOR CARRIER ACT FOR THE SOURCE OF THAT RIGHT. 

                                       II. 

THE GOVERNMENT URGES THAT EVEN IF THE MOTOR CARRIER ACT DOES NOT
GRANT THE RIGHT WHICH IS CLAIMED HERE, THE ACT MUST AT LEAST BE READ TO
PRESERVE A PRE-EXISTING COMMON-LAW RIGHT OF THAT KIND.  IT RELIES ON
SEC. 216(J) OF THE STATUTE, 49 U.S.C. SEC. 316(J), AS SHOWING A
CONGRESSIONAL INTENTION TO CONFIRM SUCH A RIGHT IN ITS STATEMENT THAT
NOTHING IN SEC. 216 "SHALL BE HELD TO EXTINGUISH ANY REMEDY OR RIGHT OF
ACTION NOT INCONSISTENT HEREWITH."  THE CONTENTION IS THAT THE COMMON
LAW RECOGNIZED THE RIGHT OF A SHIPPER BY COMMON CARRIER TO RECOVER
EXORBITANT RATES PAID UNDER PROTEST, (FN12) AND THAT ALTHOUGH THE
DOCTRINE OF PRIMARY JURISDICTION REQUIRES THAT THE ISSUE OF WHETHER
RATES WHICH ARE RETROSPECTIVELY CHALLENGED WERE IN FACT "UNREASONABLE"
BE DETERMINED BY THE I.C.C., THE COMMON-LAW RIGHT MAY BE VINDICATED IN
A SUIT IN THE COURTS THROUGH REFERRAL OF THE ISSUE OF
"UNREASONABLENESS" TO THE COMMISSION.    THE SAVING CLAUSE OF SEC.
216(J) MUST BE READ IN LIGHT OF THE JUDICIAL DECISIONS INTERPRETING
PART I OF THE INTERSTATE COMMERCE ACT BEFORE 1935, FOR THE COURSE OF
THOSE DECISIONS ILLUMINATES THE SIGNIFICANCE OF THE STRIKING
DIFFERENCES WHICH CONGRESS SAW FIT TO MAKE BETWEEN THE PROVISIONS OF
PART I AND THOSE OF THE MOTOR CARRIER ACT.  THE LANDMARK CASE IS TEXAS
& PACIFIC R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426.  THERE A
SHIPPER SUED IN A STATE COURT TO RECOVER THE DIFFERENCE BETWEEN AN
ALLEGEDLY UNREASONABLE CHARGE EXACTED FROM IT BY A RAIL CARRIER
PURSUANT TO TARIFFS FILED BY THE CARRIER WITH THE I.C.C. AND WHAT WAS
CLAIMED WOULD HAVE BEEN A JUST AND REASONABLE CHARGE.  ONE OF THE
ISSUES BEFORE THIS COURT WAS WHETHER ANY COMMON-LAW RIGHT TO RECOVER AN
EXORBITANT COMMON CARRIER FREIGHT CHARGE PAID UNDER PROTEST SURVIVED
THE PASSAGE OF THE INTERSTATE COMMERCE ACT.  THE COURT HELD, DESPITE
THE EXISTENCE IN PART I OF A SAVING CLAUSE MUCH BROADER IN SCOPE THAN
THAT HERE INVOLVED, (FN13) THAT BECAUSE UNDER THE STATUTORY SCHEME ONLY
THE I.C.C. COULD DECIDE IN THE FIRST INSTANCE WHETHER ANY FILED RATE
WAS "UNREASONABLE" EITHER AS TO THE PAST OR FUTURE, ANY COMMON-LAW
RIGHT WAS NECESSARILY EXTINGUISHED AS "ABSOLUTELY INCONSISTENT" WITH
RECOGNITION OF THE COMMISSION'S PRIMARY JURISDICTION.  IT IS IMPORTANT
TO NOTE THAT THIS CONCLUSION DID NOT REST UPON THE FACT THAT UNDER PART
I THE I.C.C. HAD REPARATIONS AUTHORITY WITH RESPECT TO UNREASONABLE
CHARGES PAID BY SHIPPERS, BUT INSTEAD WAS EVIDENTLY DICTATED BY THE
BROADER CONCLUSION THAT THE CRUCIAL QUESTION OF REASONABLENESS COULD
NOT BE DECIDED BY THE COURTS. 

SINCE THE GOVERNMENT CONCEDES THAT UNDER PART II, AS UNDER PART I,
THE ISSUE OF THE UNREASONABLENESS OF RATES CANNOT BE ADJUDICATED IN THE
COURTS, IT WOULD SEEM TO FOLLOW THAT THE COMMON-LAW RIGHT WHICH THE
GOVERNMENT URGES AS SURVIVING UNDER SEC. 216(J) CANNOT IN FACT SURVIVE,
SINCE THAT CLAUSE PRESERVES ONLY "ANY REMEDY OR RIGHT OF ACTION NOT
INCONSISTENT" WITH THE STATUTORY SCHEME.  THE GOVERNMENT URGES,
HOWEVER, THAT THERE IS NOTHING ACTUALLY INCONSISTENT WITH THE
COMMISSION'S PRIMARY JURISDICTION IN RECOGNIZING THE SURVIVAL OF A
COMMON-LAW RIGHT, BECAUSE THE DEMANDS OF PRIMARY JURISDICTION CAN BE
SATISFIED BY REFERRAL OF THE QUESTION OF THE REASONABLENESS OF THE
ASSAILED RATE TO THE I.C.C., AND THAT ALTHOUGH THE COMMISSION
CONCEDEDLY HAS NO INDEPENDENT AUTHORITY TO ENTERTAIN AND ADJUDICATE A
CLAIM FOR REPARATIONS, IT NEVERTHELESS SHOULD BE PERMITTED IN EFFECT TO
EXERCISE SUCH AN AUTHORITY AS AN ADJUNCT TO A JUDICIAL PROCEEDING. 

THE QUESTION IS, OF COURSE, ONE OF STATUTORY INTENT.  WE DO NOT THINK
THAT CONGRESS, WHICH WE CANNOT ASSUME WAS UNAWARE OF THE HOLDING OF THE
ABILENE CASE THAT A COMMON-LAW RIGHT OF ACTION TO RECOVER UNREASONABLE
COMMON CARRIER CHARGES IS INCOMPATIBLE WITH A STATUTORY SCHEME IN WHICH
THE COURTS HAVE NO AUTHORITY TO ADJUDICATE THE PRIMARY QUESTION IN
ISSUE, INTENDED BY THE SAVING CLAUSE OF SEC. 216(J) TO SANCTION A
PROCEDURE SUCH AS THAT HERE PROPOSED.  IT WOULD BE ANOMALOUS TO HOLD
THAT CONGRESS INTENDED THAT THE SOLE EFFECT OF THE OMISSION OF
REPARATIONS PROVISIONS IN THE MOTOR CARRIER ACT WOULD BE TO REQUIRE THE
SHIPPER IN EFFECT TO BRING TWO LAWSUITS INSTEAD OF ONE, WITH THE
PARTIES REQUIRED TO FILE THEIR COMPLAINT AND ANSWER IN A COURT OF
COMPETENT JURISDICTION AND THEN IMMEDIATELY PROCEED TO THE I.C.C. TO
LITIGATE WHAT WOULD ORDINARILY BE THE SOLE CONTROVERTED ISSUE IN THE
SUIT.  NO CONVINCING REASON HAS BEEN SUGGESTED TO US WHY CONGRESS WOULD
HAVE WISHED TO OMIT A DIRECT REPARATIONS PROCEDURE, AS IT CONCEDEDLY
HERE DONE, AND YET LEAVE OPEN TO THE SHIPPER THE CIRCUITOUS ROUTE
CONTENDED FOR. 

TO PERMIT A UTILIZATION OF THE PROCEDURE HERE SOUGHT BY THE
GOVERNMENT WOULD BE TO ENGAGE IN THE VERY "IMPROVISATION" AGAINST WHICH
THIS COURT CAUTIONED IN MONTANA-DAKOTA, SUPRA, IN ORDER TO PERMIT THE
I.C.C. TO ACCOMPLISH INDIRECTLY WHAT CONGRESS HAS NOT CHOSEN TO GIVE IT
THE AUTHORITY TO ACCOMPLISH DIRECTLY.  IN THE ABSENCE OF THE CLEAREST
INDICATION THAT CONGRESS INTENDED THAT THE MOTOR CARRIER ACT SHOULD
PRESERVE RIGHTS WHICH COULD BE VINDICATED ONLY BY SUCH AN
IMPROVISATION, WE MUST DECLINE TO CONSIDER A DEFENSE WHICH "INVOLVES
ONLY ISSUES WHICH A FEDERAL COURT CANNOT DECIDE AND CAN ONLY REFER TO A
BODY WHICH ALSO WOULD HAVE NO INDEPENDENT JURISDICTION TO DECIDE  ...
."  (FN14)  MONTANA-DAKOTA, SUPRA, AT P. 255.  THE GOVERNMENT'S
RELIANCE UPON UNITED STATES V. WESTERN PACIFIC R. CO., 352 U.S. 59, IS
MISPLACED, FOR IN THAT CASE, INVOLVING PART I OF THE INTERSTATE
COMMERCE ACT, THE AUTHORITY OF THE I.C.C. TO DETERMINE THE
REASONABLENESS OF PAST FILED RATES IN AID OF COURT LITIGATION WAS
UNDOUBTED.  THE CASE DECIDED NO MORE THAN THAT REFERRAL TO THE I.C.C.
OF THE ISSUE OF "UNREASONABLENESS" INVOLVED IN THE SHIPPER'S DEFENSE TO
THE CARRIER'S TIMELY TUCKER ACT SUIT WAS NOT FORECLOSED BY THE FACT
THAT AFFIRMATIVE REPARATIONS RELIEF BEFORE THE COMMISSION WOULD HAVE
BEEN BARRED BY LIMITATIONS.  IT HAS NO BEARING ON THE QUESTION WHETHER
A JUDICIAL REMEDY IN RESPECT OF ALLEGEDLY UNREASONABLE PAST RATES
SURVIVED THE PASSAGE OF THE MOTOR CARRIER ACT. 

IT IS POINTED OUT THAT THE I.C.C. HAS LONG CLAIMED THE AUTHORITY TO
MAKE FINDINGS AS TO THE REASONABLENESS OF PAST MOTOR CARRIER RATES
EMBODIED IN TARIFFS DULY FILED WITH THE COMMISSION.  IT IS TRUE THAT IN
A SERIES OF CASES BEGINNING WITH BARROWS PORCELAIN ENAMEL CO. V.
CUSHMAN MOTOR DELIVERY CO., 11 M.C.C. 365, DECIDED IN 1939, DIVISIONS
OF THE COMMISSION, AND EVENTUALLY THE COMMISSION ITSELF, BELL POTATO
CHIP CO. V. ABERDEEN TRUCK LINE, 43 M.C.C.  337, ANNOUNCED THAT THE
I.C.C. POSSESSED SUCH AUTHORITY.  BUT IN THESE CASES THE ANTERIOR
QUESTION NOW BEFORE US, WHETHER A SHIPPER HAS A RIGHT, DERIVED FROM
OUTSIDE THE STATUTE, TO PUT THE QUESTION OF THE REASONABLENESS OF PAST
RATES IN ISSUE IN JUDICIAL PROCEEDINGS, WAS GIVEN ONLY CURSORY
CONSIDERATION OR ELSE WHOLLY IGNORED.  (FN15)  THE CASES DEVOTED
THEMSELVES TO SEARCHING OUT AUTHORIZATION IN THE ACT FOR I.C.C.
PARTICIPATION, BY ADJUDICATION AS TO PAST UNREASONABLENESS, IN THE
VINDICATION OF WHATEVER REPARATION RIGHTS MIGHT EXIST.  (FN16)  THE
GOVERNMENT IS ABLE TO POINT TO ONLY TWO CASES IN ADDITION TO THE
PRESENT ONES, IN THE 24 YEARS SINCE PASSAGE OF THE MOTOR CARRIER ACT,
IN WHICH COURTS HAVE APPEARED TO ASSUME THAT THE ISSUE OF
REASONABLENESS OF PAST MOTOR CARRIER RATES WAS LITIGABLE, (FN17) AND IN
NEITHER OF THESE CASES WAS THE QUESTION GIVEN OTHER THAN THE MOST
CURSORY ATTENTION.  UNDER THESE CIRCUMSTANCES THE ISSUE BEFORE US
CANNOT FAIRLY BE SAID TO BE FORECLOSED BY LONG-STANDING INTERPRETATION
AND UNDERSTANDING. 

WE ARE TOLD THAT CONGRESS HAS LONG BEEN AWARE THAT THE COMMISSION WAS
OF THE VIEW THAT A COMMON-LAW ACTION FOR RECOVERY OF UNREASONABLE RATES
PAID TO A MOTOR CARRIER, WITH REFERRAL TO THE COMMISSION OF THE ISSUE
OF UNREASONABLENESS, WOULD LIE, AND THAT ITS FAILURE TO LEGISLATE IN
DEROGATION OF THIS VIEW IMPLIES AN APPROVAL AND ACCEPTANCE OF IT.  BUT
IT APPEARS THAT EACH TIME THE COMMISSION'S VIEWS IN THIS REGARD WERE
COMMUNICATED TO COMMITTEES OF CONGRESS, IT WAS IN CONNECTION WITH A
REQUEST BY THE COMMISSION FOR LEGISLATION WHICH WOULD HAVE GIVEN TO
SHIPPERS A CAUSE OF ACTION UNDER THE STATUTE AND GRANTED TO THE
COMMISSION THE AUTHORITY TO AWARD REPARATIONS, AND EACH TIME THAT
REQUEST WAS REJECTED.  (FN18)  HAD CONGRESS BEEN ASKED LEGISLATIVELY TO
OVERRULE THE DOCTRINES ENUNCIATED IN BELL POTATO CHIP, SUPRA, AND
DECLINED TO DO SO, THAT FACT WOULD NO DOUBT HAVE BEEN ENTITLED TO SOME
WEIGHT IN OUR INTERPRETATION OF THE ACT.  BUT WE DO NOT THINK THAT FROM
THE FAILURE OF CONGRESS TO GRANT A NEW AUTHORITY ANY RELIABLE INFERENCE
CAN PERMISSIBLY BE DRAWN TO THE EFFECT THAT ANY AUTHORITY PREVIOUSLY
CLAIMED WAS RECOGNIZED AND CONFIRMED. 

FINALLY, IT IS CONTENDED THAT DENIAL OF A REMEDY TO THE SHIPPER WHO
HAS PAID UNREASONABLE RATES IS TO SANCTION INJUSTICE.  (FN19)  THE FACT
THAT DURING THE 24-YEAR HISTORY OF THE MOTOR CARRIER ACT SHIPPERS HAVE
SOUGHT TO SECURE ADJUDICATIONS IN THE I.C.C. AS TO THE REASONABLENESS
OF PAST RATES ON ONLY A HANDFUL OF OCCASIONS, DESPITE THE COMMISSION'S
INVITATION TO SHIPPERS TO PURSUE THAT COURSE IN THE LINE OF CASES
CULMINATING IN BELL POTATO CHIP, SUPRA, STRONGLY SUGGESTS THAT A FEW
OCCASIONS HAVE ARISEN WHERE THE APPLICATION OF FILED RATES HAS
AGGRIEVED SHIPPERS BY MOTOR CARRIER.  (FN20) FURTHERMORE, THIS
CONTENTION OVERLOOKS THE FACT THAT CONGRESS HAS IN THE MOTOR CARRIER
ACT APPARENTLY SOUGHT TO STRIKE A BALANCE BETWEEN THE INTERESTS OF THE
SHIPPER AND THOSE OF THE CARRIER, AND THAT THE STATUTE CUT
SIGNIFICANTLY INTO PRE-EXISTING RIGHTS OF THE CARRIER TO SET HIS OWN
RATES AND PUT THEM INTO IMMEDIATE EFFECT, AT LEAST SO LONG AS THEY WERE
WITHIN THE "ZONE OF REASONABLENESS."  UNDER THE ACT A TRUCKER CAN RAISE
ITS RATES ONLY ON 30 DAYS' PRIOR NOTICE, AND THE I.C.C.  MAY, ON ITS
OWN INITIATIVE OR ON COMPLAINT, SUSPEND THE EFFECTIVENESS OF THE
PROPOSED RATE FOR AN ADDITIONAL SEVEN MONTHS WHILE ITS REASONABLENESS
IS SCRUTINIZED.  (FN21)  EVEN IF THE NEW RATE IS EVENTUALLY DETERMINED
TO BE REASONABLE, THE CARRIER CONCEDEDLY HAS NO AVENUE WHEREBY TO
COLLECT THE INCREMENT OF THAT RATE OVER THE PREVIOUS ONE FOR THE NOTICE
OR SUSPENSION PERIOD.  THUS ALTHOUGH UNDER THE STATUTORY SCHEME IT IS
POSSIBLE THAT A SHIPPER WILL FOR A TIME BE FORCED TO PAY A RATE WHICH
HE HAS CHALLENGED AND WHICH IS EVENTUALLY DETERMINED TO BE UNREASONABLE
AS TO THE FUTURE, AS WHEN THE SUSPENSION PERIOD EXPIRES BEFORE THE
I.C.C. HAS ACTED ON THE CHALLENGE, IT IS ORDINARILY THE CARRIER, RATHER
THAN THE SHIPPER, WHICH IS MADE TO SUFFER BY ANY PERIOD OF
ADMINISTRATIVE "LAG."  (FN22) 

FOR THE FOREGOING REASONS THE JUDGMENT OF THE COURT OF APPEALS IN
EACH OF THESE CASES MUST FALL.  REVERSED. 

FN1  INTERSTATE COMMERCE ACT, PART II, 49 STAT. 543, AS AMENDED, 49
U.S.C. SEC. 301 ET SEQ. 

FN2  SEE MOTOR CARRIER ACT SECS. 216(E), (G), 217(B), (C), 49 U.S.C.
SECS. 316(E), (G), 317 (B), (C). 

FN3  THIS PART OF THE CHARGES WAS THAT REPRESENTED BY A "NEW YORK
STATE SURCHARGE," INCLUDED BY DAVIDSON IN ITS RATE TO RECOUP THE COST
OF A NEW YORK TON-MILE TRUCK TAX.  THE TARIFF INCLUDING THE SURCHARGE
HAD BEEN FILED TO BECOME EFFECTIVE OCTOBER 8, 1951.  THE I.C.C. HAD
SUSPENDED THE TARIFF FOR THE MAXIMUM PERIOD PERMITTED BY THE ACT, BUT
SINCE THE INQUIRY AS TO ITS REASONABLENESS WAS NOT COMPLETED WITHIN THE
SUSPENSION PERIOD IT WENT INTO EFFECT ON MAY 8, 1952, AND WAS IN EFFECT
AT THE TIME OF SHIPMENT.  THE I.C.C. SUBSEQUENTLY FOUND THE SURCHARGE
TO BE UNREASONABLE AND ORDERED ITS EXCISION FROM DAVIDSON'S RATES, 62
M.C.C. 117.  THIS ORDER WAS PURELY PROSPECTIVE AND DID NOT AFFECT THE
SHIPMENTS INVOLVED HERE. 

FN4  IN OUR VIEW OF THESE CASES IT BECOMES UNNECESSARY TO CONSIDER
DAVIDSON'S ALTERNATIVE CONTENTION THAT IN ANY EVENT THE GENERAL
ACCOUNTING OFFICE HAD NO RIGHT UNDER SEC. 322 OF THE TRANSPORTATION ACT
OF 1940 TO DEDUCT FROM THE CARRIER'S CHARGES THE AMOUNT CLAIMED BY THE
UNITED STATES TO HAVE BEEN UNREASONABLE. 

FN5  SECTION 216(J), 49 U.S.C. SEC. 316(J), PROVIDES THAT "NOTHING IN
THIS SECTION SHALL BE HELD TO EXTINGUISH ANY REMEDY OR RIGHT OF ACTION
NOT INCONSISTENT HEREWITH." 

FN6  SECTION 205(A) OF THE POWER ACT, 49 STAT. 851, 16 U.S.C. SEC.
824DA), PROVIDES THAT "ALL RATES AND CHARGES  ...  AND ALL RULES AND
REGULATIONS AFFECTING OR PERTAINING TO SUCH RATES OR CHARGES SHALL BE
JUST AND REASONABLE, AND ANY SUCH RATE OR CHARGE THAT IS NOT JUST AND
REASONABLE IS HEREBY DECLARED TO BE UNLAWFUL." 

FN7  49 U.S.C. SEC. 8. 

FN8  49 U.S.C. SEC. 9. 

FN9  49 U.S.C. SECS. 13(1), 16. 

FN10  HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON S. 1194, 80TH CONG., 2D SESS., PP. 1, 5, 11-12. 

FN11  SEE HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON S. 378, 85TH CONG., 2D SESS., PP. 3, 12. 

FN12  SUCH A RIGHT WAS ASSUMED BY THIS COURT TO HAVE EXISTED AT
COMMON LAW IN TEXAS & PACIFIC R. CO. V. ABILENE COTTON OIL CO., 204
U.S. 426, 436, AND ARIZONA GROCERY CO. V. ATCHISON, T. & S.F.R. CO.,
284 U.S. 370.  BUT SEE AITCHISON, FAIR REWARD AND JUST COMPENSATION,
COMMON CARRIER SERVICE, P. 10, SUGGESTING THAT THE COMMON-LAW RIGHT IS
ONE TO BE FREE FROM UNDUE DISCRIMINATION, RATHER THAN FROM MERE
EXORBITANCE. 

FN13 SECTION 22 OF THE INTERSTATE COMMERCE ACT PROVIDED AT THE TIME
OF THE ABILENE CASE, AND CONTINUES IN SUBSTANCE TO PROVIDE, THAT:
"NOTHING IN THIS ACT CONTAINED SHALL IN ANY WAY ABRIDGE OR ALTER THE
REMEDIES NOW EXISTING AT COMMON LAW OR BY STATUTE, BUT THE PROVISIONS
OF THIS ACT ARE IN ADDITION TO SUCH REMEDIES." 

FN14  IT IS NOTEWORTHY THAT IN 1949, WHEN CONGRESS ADDED TO THE MOTOR
CARRIER ACT A STATUTE OF LIMITATIONS PROVISION GOVERNING SUITS BY AND
AGAINST CARRIERS INVOLVING CHARGES, SUCH PROVISION WAS MADE APPLICABLE
ONLY TO SUITS FOR "OVERCHARGES," DEFINED TO MEAN "CHARGES FOR
TRANSPORTATION SERVICES IN EXCESS OF THOSE APPLICABLE THERETO UNDER THE
TARIFFS LAWFULLY ON FILE WITH THE COMMISSION."  49 U.S.C. SEC. 304A. 
IT WOULD BE SURPRISING, GIVEN THE POLICY OF UNIFORMITY REFLECTED IN
THIS PROVISION, FOR CONGRESS NOT TO HAVE ALSO ADDED A STATUTE OF
LIMITATIONS PROVISION APPLICABLE TO SUITS ON ACCOUNT OF UNREASONABLE
RATES, HAD A CAUSE OF ACTION WITH RESPECT TO SUCH RATES BEEN DEEMED TO
EXIST.  COMPARE 49 U.S.C. SEC. 16(3)(B), PROVIDING A LIMITATIONS
PROVISION FOR COMPLAINTS FOR THE RECOVERY OF DAMAGES "NOT BASED ON
OVERCHARGES" FROM RAIL CARRIERS.    FN15  SEE, E.G., UNITED STATES V.
DAVIDSON TRANSFER & STORAGE CO., INC., 302 I.C.C. 87, 90-91, INVOLVING
THE SAME PARTIES AS THOSE NOW BEFORE US IN NO. 96.  BARROWS, RELIED ON
HEAVILY IN THE DISSENTING OPINION BECAUSE IT WAS DECIDED BY A DIVISION
OF THE I.C.C. OF WHICH COMMISSIONER EASTMAN, PREVIOUSLY FEDERAL
COORDINATOR OF TRANSPORTATION AND A PRINCIPAL ARCHITECT OF THE MOTOR
CARRIER ACT, WAS A MEMBER, DOES NOT EVEN SUGGEST THAT A COMMON-LAW
ACTION TO RECOVER UNREASONABLE RATES MIGHT BE MAINTAINABLE.  RATHER IT
REFERRED TO FINDINGS AS TO THE REASONABLENESS OF PAST RATES ONLY AS
"VALUABLE FUTURE GUIDES TO SHIPPERS AND CARRIERS."  11 M.C.C., AT 367. 

FN16  THE BELL CASE PURPORTED TO FIND SUCH AUTHORIZATION IN SECS.
216(E) AND 204(C) (49 U.S.C. SECS. 316(E), 304(C)), ALTHOUGH BOTH THESE
PROVISIONS APPEAR IN TERMS DIRECTED ONLY TO THE AUTHORIZATION OF
FINDINGS AND ORDERS OPERATING SOLELY PROSPECTIVELY.  IT RELIED ALSO ON
THE PROVISIONS OF THE STATUTE WHICH IMPOSE ON THE CARRIER THE DUTY OF
MAINTAINING REASONABLE AND NONDISCRIMINATORY RATES.  49 U.S.C. SEC.
316(B), (D).  BUT SEE MONTANA-DAKOTA UTILITIES CO. V. NORTHWESTERN PUB.
SERV. CO., SUPRA. 

FN17  NEW YORK & NEW BRUNSWICK AUTO EXPRESS CO. V. UNITED STATES, 130
CT. CL. 339, 126 F. SUPP. 215; UNITED STATES V. GARNER, 134 F. SUPP. 16
(D.C.E.D.N.C.). 

FN18  SEE NOTES 10, 11, SUPRA. 

IT IS SUGGESTED THAT CONGRESS WAS FULLY INFORMED AT THE TIME OF
PASSAGE OF THE TRANSPORTATION ACT OF 1940 OF "AN EXISTING
INTERPRETATION" OF THE MOTOR CARRIER ACT WHICH WOULD ALLOW COMMON-LAW
ACTIONS FOR THE RECOVERY OF UNREASONABLE RATES.  WE DO NOT SO READ THE
LEGISLATIVE HISTORY RELIED UPON.  ON THE CONTRARY, COMMISSIONER
EASTMAN, TESTIFYING BEFORE THE SENATE COMMITTEE, APPEARED TO
DISTINGUISH BETWEEN THE AVAILABILITY OF A JUDICIAL REMEDY IN RESPECT OF
INAPPLICABLE TARIFF RATES AND THE UNAVAILABILITY OF SUCH A REMEDY IN
RESPECT OF RATES CLAIMED TO BE "UNREASONABLE" THOUGH EMBODIED IN A
FILED TARIFF.  THE COMMISSIONER SAID: 

"SO FAR AS REPARATION IS CONCERNED, THERE IS NO REASON WHY THESE
PROVISIONS SHOULD NOT BE APPLIED TO MOTOR CARRIERS AS WELL AS TO
RAILROADS.  THEY WERE OMITTED FROM THE MOTOR CARRIER ACT ONLY BECAUSE
OF THE DESIRE TO LIGHTEN THE BURDENS OF THE MOTOR CARRIERS IN THE EARLY
STAGES OF REGULATION, IN THE ABSENCE OF ANY STRONG INDICATION OF PUBLIC
NEED.  MOTOR CARRIERS HAVE PRACTICALLY NO TRAFFIC WHICH IS
NONCOMPETITIVE, AND THERE IS LITTLE DANGER THAT THEY WILL EXACT
EXORBITANT CHARGES.  SINCE THE MOTOR CARRIER ACT BECAME EFFECTIVE IN
1935, THE COMMISSION HAS NOT ONCE HAD OCCASION TO CONDEMN MOTOR-CARRIER
RATES AS UNREASONABLY HIGH.  I DON'T THINK WE HAVE HAD ANY COMPLAINTS
TO THAT EFFECT.  IT FOLLOWS THAT THERE IS NOTHING TO INDICATE THAT
SHIPPERS NEED PROVISIONS TO ENABLE THE COMMISSION TO AWARD REPARATION
FOR DAMAGES SUFFERED BECAUSE OF UNREASONABLE CHARGES. 

"THE OCCASION FOR REPARATION FROM MOTOR CARRIERS WOULD CHIEFLY ARISE,
THEREFORE, IN THE EVENT OF OVERCHARGES ABOVE PUBLISHED TARIFF RATES. 
SHIPPERS CAN RECOVER SUCH OVERCHARGES IN COURT AS THE LAW NOW STANDS." 
HEARINGS BEFORE SENATE INTERSTATE COMMERCE COMMITTEE ON S. 1310, S.
2016, S. 1869, AND S. 2009, 76TH CONG., 1ST SESS., PP. 791-792. 

SEE ALSO HEARINGS AT P. 132, WHERE SENATOR REED ASKED A TRUCKERS'
REPRESENTATIVE OPPOSING THE ADDITION OF REPARATIONS PROVISIONS TO THE
MOTOR CARRIER ACT "IF A SHIPPER BY RAILROAD, WHICH IS ONE FORM OF
COMMON CARRIER, NOW HAS A REMEDY AT LAW IN THE WAY OF DAMAGES WHICH HE
MAY HAVE SUFFERED THROUGH A COLLECTION OF AN UNREASONABLE RATE, AND IF
WE ARE TRYING TO MAKE UNIFORM REGULATIONS, WHY SHOULD A COMMON CARRIER
BY TRUCK BE EXEMPTED FROM THE RIGHT OR REMEDY OF THE SHIPPER AGAINST AN
UNREASONABLE CHARGE ANY MORE THAN ANY OTHER FORM OF COMMON CARRIER?" 
THE REPARATIONS PROVISION WAS SUBSEQUENTLY STRICKEN FROM THE BILL. 

FN19  BUT SEE JAFFE, PRIMARY JURISDICTION RECONSIDERED, 102 U. OF PA.
L. REV. 577, 589, COMMENTING ON BELL POTATO CHIP, SUPRA:  "IT IS, TO BE
SURE, DOUBTFUL THAT REPARATIONS IN SUCH A CASE SERVE A USEFUL
FUNCTION.  RATES ARE UNDER CONTINUOUS SCRUTINY.  ADMINISTRATIVE
CONDEMNATION IMPLIES NEW CIRCUMSTANCES OR NEW UNDERSTANDING RATHER THAN
SERIOUS PAST INJUSTICE.  AND, AS MR. JUSTICE JACKSON OBSERVES IN THE
MONTANA-DAKOTA CASE, THE OVERCHARGE HAS USUALLY BEEN PASSED ALONG BY
THE ONE WHO PAID IT TO SOME UNDISCOVERABLE AND UNREIMBURSABLE
CONSUMER." 

FN20  IT WAS RECOGNIZED AT THE TIME OF PASSAGE OF THE MOTOR CARRIER
ACT THAT COMPETITIVE CONDITIONS IN THE TRUCKING INDUSTRY WERE SUCH THAT
THE POSSIBILITY OF UNREASONABLY HIGH RATES PRESENTED NO PROBLEM. 
COMMISSIONER EASTMAN, WHO HAD CONDUCTED AN INQUIRY INTO THE MOTOR
CARRIER INDUSTRY, STATED DURING THE HEARINGS PRECEDING PASSAGE OF THE
ACT THAT "I DO NOT RECALL THAT THERE WERE ANY COMPLAINTS BASED UPON
EXCESSIVE CHARGES."  HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 5262, 6016, 74TH
CONG., 1ST SESS., P. 32.  SEE ALSO HIS 1939 STATEMENT BEFORE THE
INTERSTATE COMMERCE COMMITTEE OF THE SENATE, QUOTED AT NOTE 18, SUPRA. 

FN21  SEE MOTOR CARRIER ACT.  SECS.  217(C), 216(G), 49 U.S.C. SECS.
317(C), 316(G). 

FN22  COUNSEL FOR THE GOVERNMENT STATED ON ORAL ARGUMENT THAT THE
SITUATION PRESENTED IN NO. 96, WHERE THE SUSPENSION PERIOD EXPIRED
BEFORE THE ADJUDICATION OF THE REASONABLENESS OF THE CHALLENGED RATE
HAD BEEN COMPLETED, ARISES VERY INFREQUENTLY, SINCE THE SUSPENSION
PERIOD IS ORDINARILY AMPLE TO PERMIT SUCH ADJUDICATION. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE CLARK JOIN, DISSENTING. 

THERE CAN BE NO SERIOUS DOUBT THAT AT COMMON LAW A CAUSE OF ACTION
EXISTED AGAINST CARRIERS WHO CHARGED UNREASONABLE RATES.  SEE TEXAS &
P.R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, 436; ARIZONA GROCERY
CO. V. ATCHISON, T.&.S.F.R. CO., 284 U.S. 370, 383.  (FN1)  NOR CAN IT
BE QUESTIONED THAT THE MOTOR CARRIER ACT CONFIRMED THE COMMON-LAW
POLICY AGAINST UNREASONABLE RATES AND IN FACT EXPRESSLY MADE SUCH RATES
ILLEGAL.  (FN2)  IT IS ALSO CLEAR THAT THE ACT ATTEMPTED TO PRESERVE
ALL PRE-EXISTING REMEDIES WHICH DID NOT DIRECTLY CONFLICT WITH ITS
AIMS.  (FN3)  NEVERTHELESS THE COURT TODAY HOLDS THAT THE STATUTE
ABOLISHED THE COMMON-LAW REMEDY BY IMPLICATION AND LEFT SHIPPERS
HELPLESS AGAINST CARRIERS WHO HAVE CHARGED UNREASONABLE AND THEREFORE
ILLEGAL RATES.  TO ACCOMPLISH THIS RESULT THE COURT RELIES ESSENTIALLY
ON TWO PRIOR DECISIONS OF THIS COURT; MONTANA-DAKOTA UTILITIES CO. V.
NORTHWESTERN PUB. SERV. CO., 341 U.S. 246, WHICH I BELIEVE HAS
VIRTUALLY NOTHING TO DO WITH THE ISSUE, AND TEXAS & P.R. CO. V. ABILENE
COTTON OIL CO., 204 U.S. 426, WHICH, I THINK, SUPPORTS A HOLDING
OPPOSITE TO THAT WHICH THE COURT MAKES TODAY.  MOREOVER, IN REACHING
ITS CONCLUSION, THE COURT OVERTURNS A LONG-STANDING AND CONSISTENT
I.C.C. INTERPRETATION OF THE MOTOR CARRIER ACT - AN INTERPRETATION
WHICH WAS BASED IN LARGE PART ON THE ABILENE CASE, WHICH WAS FIRST
FORMULATED BY MEN WHO HELPED DRAFT THE ACT, AND WHICH HAS BEEN
GENERALLY ACCEPTED BY SHIPPERS, CARRIERS, AND CONGRESS ALIKE.  I AM
UNABLE TO UNDERSTAND WHY THE COURT STRAINS SO HARD TO REACH SO BAD A
RESULT. 

THE MOTOR CARRIER ACT, THOUGH LARGELY PATTERNED AFTER THE INTERSTATE
COMMERCE ACT OF 1887 REGULATING RAILROADS, HAD NO COUNTERPART OF SECS.
8, 9, 13 AND 16 OF THAT ACT.  (FN4)  THESE SECTIONS PROVIDED TWO
REMEDIES EITHER OF WHICH A SHIPPER COULD PURSUE TO RECOVER DAMAGES
SUFFERED AS A RESULT OF UNLAWFUL CARRIER RATES OR PRACTICES.  ONE
REMEDY WAS BY COMPLAINT TO THE COMMISSION THE OTHER BY SUIT BROUGHT IN
AN APPROPRIATE DISTRICT COURT OF THE UNITED STATES.  BOTH THESE
REMEDIES AUTHORIZED IMPOSITION OF REASONABLE ATTORNEYS' FEES ON A
CARRIER SHOULD A CLAIM REACH THE COURT AND BE DECIDED IN THE SHIPPER'S
FAVOR.  SEE MEEKER V. LEHIGH VALLEY R. CO., 236 U.S. 412, 432-433. 

IN TEXAS & P.R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, THIS
COURT CONSIDERED THE EFFECT OF THESE REPARATION SECTIONS ON COMMON-LAW
ACTIONS BY SHIPPERS FOR DAMAGES CAUSED BY RATES ALLEGED TO BE UNLAWFUL
BECAUSE UNREASONABLE.  THE COURT IMPLIED THAT THE STATE COURT IN WHICH
THE SHIPPER HAD SUED HAD NO JURISDICTION SINCE THE CONGRESSIONAL
REMEDIES IN THE REPARATION SECTIONS WERE COMPLETE AND EXCLUSIVE IN
THEMSELVES AND SUPPLANTED THE PRE-EXISTING COMMON-LAW RIGHT OF SHIPPERS
TO SUE FOR DAMAGES CAUSED BY UNREASONABLE RATES, THIS RIGHT BEING
DEEMED INCONSISTENT WITH THE STATUTORY REMEDIES; AND HELD THAT THE
POWER TO DETERMINE THE REASONABLENESS OF RATES WAS PRIMARILY AND
EXCLUSIVELY VESTED BY THE ACT IN THE COMMISSION.  IT DID NOT HOLD, AS
THE COURT NOW ASSUMES, THAT THE EXISTENCE OF PRIMARY JURISDICTION ALONE
DESTROYED ALL COURT REMEDIES.  ACCORDINGLY, SINCE THE ABILENE CASE,
WHEN THE QUESTION OF UNREASONABLENESS HAS ARISEN IN COURT PROCEEDINGS
COURTS HAVE OFTEN REFUSED TO DISMISS THE CAUSE BUT HAVE STAYED THE
ACTION PENDING I.C.C. DETERMINATION OF THAT ISSUE.  SEE, E.G., MITCHELL
COAL & COKE CO. V. PENNSYLVANIA R. CO., 230 U.S. 247; GENERAL AM. TANK
CAR CORP. V. EL DORADO TERMINAL CO., 308 U.S. 422, 432-433; UNITED
STATES V. WESTERN P.R. CO., 352 U.S. 59, 62-70.  (FN5)  THE COURT TODAY
SEEMS TO DECIDE INSTEAD THAT PRIMARY JURISDICTION IS INCONSISTENT WITH
COURT REMEDIES OF ANY KIND, AND THAT THE MERE OMISSION OF REPARATIONS
PROVISIONS IN THE MOTOR CARRIER ACT SHOWED A CONGRESSIONAL PURPOSE TO
DEPRIVE SHIPPERS OF THE COMMON-LAW RIGHT TO OBTAIN DAMAGES RESULTING
FROM UNREASONABLE RATES.  IT REACHES THIS CONCLUSION ALTHOUGH TO DO SO
LEAVES SHIPPERS WITH NO REMEDY AT ALL HOWEVER UNREASONABLE AND UNLAWFUL
A PAST RATE MAY HAVE BEEN, AND ALTHOUGH THERE IS NOT A WORD IN THE ACT,
AND NOTHING TO WHICH WE HAVE BEEN DIRECTED IN ITS HISTORY, THAT SHOWS
ANY CONGRESSIONAL PURPOSE TO TAKE AWAY THE PRE-EXISTING REMEDY. 

ON THE CONTRARY, SINCE PASSAGE OF THE MOTOR CARRIER ACT IN 1935, A
STEADY LINE OF DECISIONS BY THE I.C.C. HAS INTERPRETED THAT ACT AS
LEAVING SHIPPERS THE RIGHT TO SUE IN THE COURTS FOR DAMAGES RESULTING
FROM UNLAWFUL RATES.  THIS ACTION LAY ONLY WHERE THE RATES HAD NOT
PREVIOUSLY BEEN HELD REASONABLE BY THE COMMISSION, CF. ARIZONA GROCERY
CO. V. ATCHISON, T.&S.F.R. CO., 284 U.S. 370, 387-388, AND CONSISTED OF
TWO PARTS, (1) A SUIT BY A SHIPPER IN A COURT, (2) A DETERMINATION BY
THE COMMISSION THAT THE RATES SUED ON HAD, IN FACT, BEEN UNREASONABLE
OR OTHERWISE UNLAWFUL WHEN CHARGED.  THE FIRST CASE OF THIS KIND,
BARROWS PORCELAIN ENAM.  CO. V. CUSHMAN MOTOR DELIV.  CO., 11 M.C.C.
365, WAS SUBMITTED TO THE COMMISSION IN APRIL 1938, AND HANDED DOWN IN
FEBRUARY 1939.  IT WAS DECIDED BY DIVISION 5 WHICH WAS SPECIALLY
CHARGED WITH THE ADMINISTRATION OF THE MOTOR CARRIER ACT AND WAS
CONCURRED IN BY COMMISSIONER EASTMAN WHO HAD BY THEN SERVED ON THE
COMMISSION OR AS COORDINATOR OF THE TRANSPORTATION SYSTEM OF THE
COUNTRY FOR 17 YEARS.  HE HAD DRAFTED THE 1935 ACT AND PROBABLY KNEW
MORE ABOUT WHAT IT MEANT THAN ANYBODY ON THIS COURT THEN OR NOW.  (FN6)
ADMITTING THAT THE COMMISSION COULD NOT ITSELF AWARD REPARATIONS,
DIVISION 5 HELD, IN BARROWS, THAT IT DID HAVE AUTHORITY TO PASS ON THE
REASONABLENESS OF PAST RATES SINCE UNREASONABLE RATES WERE UNLAWFUL
UNDER THE ACT.  SIGNIFICANTLY DIVISION 5 STATED, "THIS CONCLUSION IS,
WE BELIEVE, SUPPORTED BY THE REASONING OF THE UNITED STATES SUPREME
COURT IN TEXAS & P. RY. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426." 
11 M.C.C., AT 367.  BARROWS WAS REAFFIRMED IN EARLY 1940 WITH
COMMISSIONER EASTMAN AGAIN ON THE PANEL.  (FN7) 

IN SEPTEMBER 1940, AFTER VERY EXTENSIVE HEARINGS, THE INTERSTATE
COMMERCE ACT WAS AMENDED AND BROADENED IN MANY RESPECTS.  (FN8)  AT THE
SAME TIME, WATER CARRIERS WERE BROUGHT UNDER COMMISSION REGULATION.  TO
ACHIEVE UNIFORMITY BETWEEN THE DIFFERENT PARTS OF THE ACT, EFFORTS WERE
MADE TO SUBJECT MOTOR CARRIERS TO REPARATION PROCEEDINGS BEFORE THE
COMMISSION.  (FN9)  THE REPRESENTATIVE OF THE MOTOR CARRIERS
STRENUOUSLY OBJECTED.  THE HEARINGS BEFORE THE SENATE COMMITTEE ON
INTERSTATE COMMERCE SHOW THAT THE OBJECTIONS WERE DIRECTED AGAINST
SUBJECTION OF MOTOR CARRIERS TO COMMISSION REPARATIONS NOT TO COMMON
LAW ACTIONS IN THE COURTS.  COMMISSION ACTIONS, IT WAS STATED, MIGHT
RESULT IN THE TAXING OF ATTORNEYS' FEES IN ADDITION TO DAMAGES AND
MIGHT THEREBY ENCOURAGE "CLAIM CHASERS."  (FN10)  THE COMMITTEE MEMBERS
AND THE WITNESSES BEFORE CONGRESS ALL APPEARED TO RECOGNIZE THAT SUITS
COULD BE FILED IN COURT.  THUS THE CHAIRMAN OF THE COMMITTEE STATED "HE
HAS THAT RIGHT NOW.  IT DOES NOT ADD ANYTHING, AS A MATTER OF FACT, TO
THE RIGHTS OF THE SHIPPER  ...  .  IF YOU WERE AFRAID THAT THE RAILROAD
MIGHT GO AND STIR UP A CLAIM AGAINST (THE TRUCKERS), THEY CAN DO THAT
NOW."  (FN11)  AND THE REPRESENTATIVE OF THE TRUCKERS ANSWERED "WE ARE
NOT FEARFUL OF THAT, BUT WE ARE FEARFUL OF PRACTICES OCCURRING WHERE
(THE TRUCKERS) WILL BE CONSTANTLY HARASSED."  TO WHICH A MEMBER OF THE
COMMITTEE ADDED "THE OBJECTION IS THAT UNDER THE EXISTING LAW YOU HAVE
TO GO TO THE COURT TO GET RELIEF AND UNDER THE PROPOSED LAW THE
INTERSTATE COMMERCE COMMISSION COULD GIVE YOU RELIEF?"  (FN12)
COMMISSIONER EASTMAN ALSO APPEARED BEFORE THE COMMITTEE, TWO MONTHS
AFTER THE BARROWS OPINION CAME DOWN, AND STATED: 

"MOTOR CARRIER TARIFFS HAVE BEEN, BY AND LARGE, VERY IMPERFECT
PRODUCTS, AND WHILE THE SITUATION IS IMPROVING CONTINUALLY, MUCH ROOM
FOR IMPROVEMENT REMAINS. 

"WHERE TARIFFS ARE POORLY WORDED AND IMPERFECTLY CONSTRUCTED,
EXPERIENCED TRAFFIC EXPERTS CAN OFTEN RAISE TROUBLESOME QUESTIONS AS TO
THE APPLICABILITY OF THE RATES CHARGED, AND THERE ARE THOSE WHO MAKE
THIS THEIR BUSINESS, OBTAINING THEIR COMPENSATION FROM SUCH REPARATION
AWARDS AS THEY ARE SUCCESSFUL IN SECURING.           *         *
*         *         * 

"IN THE EARLY STAGES OF THEIR REGULATION AND TARIFF DEVELOPMENT, IT
WAS THOUGHT THAT THE MOTOR CARRIERS MIGHT WELL BE SPARED THE BURDEN OF
DEFENDING SUCH CLAIMS BEFORE THE COMMISSION."  (FN13) 

ACCORDINGLY THE COMMITTEE REPORT ON THE 1940 ACT STATED THAT THE
PARAGRAPH OF THE BILL WHICH WOULD HAVE SUBJECTED THE MOTOR CARRIERS TO
REPARATION CLAIMS BEFORE THE COMMISSION WAS CHANGED: 

"BECAUSE OF MOTOR CARRIER OBJECTIONS TO AWARDS OF REPARATION BY THE
COMMISSION.  SHIPPERS HAVE THE RIGHT TO RECOVER IN COURT ANY DAMAGES
RESULTING FROM VIOLATIONS OF THE LAW BY MOTOR CARRIERS OR CARRIERS BY
WATER."  S. REP. NO. 433, 76TH CONG., 1ST SESS. 18.  (FN14) 

IT SEEMS CLEAR, THEREFORE, THAT WHEN THE 1940 MOTOR CARRIER ACT WAS
ADOPTED, AT LEAST THE SENATE COMMITTEE WAS FULLY INFORMED OF AN
EXISTING INTERPRETATION OF THE 1935 ACT UNDER WHICH SHIPPERS COULD SUE
FOR DAMAGES ON THE BASIS OF UNREASONABLE RATES. 

AFTER THE PASSAGE OF THE 1940 ACT, DIVISIONS OF THE COMMISSION
CONTINUED TO CONSTRUE THE MOTOR CARRIER LAW TO ALLOW DETERMINATIONS OF
THE REASONABLENESS OF PAST RATES.  IN 1942, FOR EXAMPLE, THE COMMISSION
DID THIS IN A CASE INVOLVING THE SAME QUESTION PRESENTED BY THE
GOVERNMENT IN T.I.M.E., NO. 68 - THE REASONABLENESS OF A JOINT THROUGH
RATE WHICH EXCEEDS THE AGGREGATE OF INTERMEDIATE RATES BETWEEN THE SAME
POINTS.  THE COMMISSION HELD THAT ON THE FACTS PRESENTED THE RATES
"WERE UNREASONABLE  ...  TO THE EXTENT THAT THEY EXCEEDED THE
CORRESPONDING AGGREGATE  ...  ."  KINGAN & CO. V. OLSON TRANS.  CO., 32
M.C.C.  10, 12.  FINALLY IN BELL POTATO CHIP CO. V. ABERDEEN TRUCK
LINE, 43 M.C.C. 337, THE WHOLE COMMISSION REVIEWED THE QUESTION TO
PROVIDE A "PRECEDENT FOR FUTURE GUIDANCE" AND EMPHATICALLY APPROVED THE
BARROWS LINE OF CASES.  IT ESTABLISHED SAFEGUARDS AGAINST FRIVOLOUS OR
MOOT COMPLAINTS BUT REAFFIRMED THE EXISTENCE OF COURT REMEDIES FOR
UNREASONABLE RATES AND THE NEED FOR COMMISSION DETERMINATIONS OF THE
FACT OF UNREASONABLENESS BEFORE THE COURTS COULD AWARD DAMAGES. 

BOTH THE BELL CASE AND THE BARROWS CASE HAVE BEEN CITED TO
CONGRESSIONAL COMMITTEES TIME AND AGAIN.  IN 1947 AND 1948 EXTENDED
HEARINGS WERE HELD BEFORE SENATE AND HOUSE COMMITTEES ON BILLS TO
ESTABLISH UNIFORM STATUTES OF LIMITATIONS FOR COURT ACTIONS ARISING OUT
OF VIOLATIONS OF THE COMMERCE ACT AND TO SUBJECT MOTOR CARRIERS AND
FREIGHT FORWARDERS TO COMMISSION REPARATIONS.  (FN15) MEMBERS OF THE
I.C.C. IN WRITTEN STATEMENTS, BRIEFS AND TESTIMONY, STRESSED TO THE
COMMITTEES CONSIDERING THE BILLS BOTH THE EXISTENCE OF THE COURT
REMEDIES DESCRIBED IN THE BELL CASE AND THE FACT THAT FEW COMMON-LAW
ACTIONS WERE IN FACT UNDERTAKEN BECAUSE OF THE EXPENSE INVOLVED IN A
SPLIT PROCEDURE.  (FN16)  WITNESSES FOR AND AGAINST THE BILLS ACCEPTED
THE RULE OF THE BELL CASE.  (FN17) THUS THE REPRESENTATIVE OF THE
FREIGHT FORWARDERS, WHOSE STATUS UNDER THE ACT IS THE SAME AS THAT OF
MOTOR CARRIERS, REFERRING TO THE BELL CASE SAID "IT IS THE LAW TODAY,"
AND THEN ADDED "IF THE COMMISSION FINDS THAT THE RATES HAVE BEEN
UNREASONABLE IN THE PAST, DAMAGES MAY BE OBTAINED UNDER THE LAW AS IT
STANDS TODAY."  (FN18)  HE OPPOSED THE PROPOSED CHANGE BECAUSE HE FELT
THAT IT WOULD MAKE IT EASIER FOR SHIPPERS TO OBTAIN REPARATIONS WHERE
NO DAMAGES WERE ACTUALLY SUFFERED.  (FN19) WHEN THE BILLS WERE REPORTED
BY THE COMMITTEES THE PROVISIONS FOR REPARATIONS BEFORE THE COMMISSION
WERE EXCLUDED.  THE REPORT OF THE HOUSE COMMITTEE EXPLAINED THAT
REPARATIONS BEFORE THE COMMISSION WERE NOT AVAILABLE UNDER THE LAW AS
IT STOOD.  AFTER STATING THAT THE BILLS ORIGINALLY HAD INCLUDED
REPARATION PROVISIONS BEFORE THE COMMISSION SIMILAR TO THOSE APPLIED TO
RAIL CARRIERS AND THAT THESE HAD BEEN DROPPED, THE REPORT INCORPORATED
A LETTER FROM THE I.C.C. EXPLAINING THE EXISTENCE OF THE COURT REMEDY
AND POINTING OUT THE WEAKNESSES OF THIS REMEDY.  THE COMMITTEE THEN
STATED THAT LEGISLATION MAKING ADDITIONAL REPARATIONS PROVISIONS
APPLICABLE TO MOTOR CARRIERS AND FREIGHT FORWARDERS WAS NOT AT THAT
TIME DEEMED DESIRABLE.  IT CONCLUDED THAT THE OTHER PROVISIONS,
INCLUDING A UNIFORM STATUTE OF LIMITATIONS IN CASES ARISING FROM THE
CHARGING OF TARIFFS DIFFERENT FROM THOSE ON FILE, SHOULD BE ENACTED. 
(FN20)  WHILE CONGRESS DID NOT ENACT THESE MEASURES BEFORE ADJOURNMENT,
(FN21) THEY WERE PASSED IN THE FOLLOWING CONGRESS AFTER COMMITTEE
REPORTS WHICH REFERRED TO THE HEARINGS OF THE PRIOR TWO YEARS.  (FN22) 

ONCE MORE, AS LATE AS 1957, AFTER THIS COURT'S DECISION IN MONTANA
DAKOTA UTILITIES CO. V. NORTHWESTERN PUB. SERV. CO., 341 U.S. 246, THE
I.C.C. SOUGHT TO HAVE REPARATIONS BEFORE THE COMMISSION ESTABLISHED. 
AGAIN HEARINGS WERE HELD; IN THESE THE CHAIRMAN OF THE I.C.C., THE
UNDER SECRETARY OF COMMERCE, A REPRESENTATIVE OF THE FREIGHT FORWARDERS
AND OTHERS UNEQUIVOCALLY TESTIFIED THAT A REMEDY FOR UNREASONABLE PAST
RATES WAS AVAILABLE THROUGH THE COURTS.  (FN23)  THIS TESTIMONY BY THE
REPRESENTATIVE OF THE FREIGHT FORWARDERS CAUSED THE PRESIDING MEMBER OF
THE SUBCOMMITTEE TO ASK "WHAT DOES THIS BILL PROPOSE THAT IS DIFFERENT
FROM WHAT WE NOW HAVE?  THAT IS WHAT I AM TRYING TO DETERMINE."  TO
WHICH THE REPRESENTATIVE, OPPOSING COMMISSION REPARATIONS, REPLIED:
"IT JUST ADDS SOME CUMBERSOME MACHINERY THAT WE THINK WILL CAUSE
LITIGATION."  (FN24) 

THIS COURT HAS FREQUENTLY HAD OCCASION TO SAY THAT INTERPRETATIONS OF
STATUTES BY AGENCIES CHARGED WITH THEIR ADMINISTRATION ARE ENTITLED TO
VERY GREAT WEIGHT.  (FN25)  MOREOVER, THE LEGISLATIVE HISTORY OF BILLS
ATTEMPTING TO GRANT THE I.C.C. POWER TO AWARD REPARATIONS GOES FAR, IN
VIEW OF THE ARGUMENTS MADE AGAINST THEM, TOWARD APPROVING THE ORIGINAL
INTERPRETATION OF THE MOTOR CARRIER ACT MADE BY DIVISION 5 OF THE
I.C.C. AND COMMISSIONER EASTMAN.  RECENTLY, THE COMMISSION HAS
REAFFIRMED ITS INTERPRETATION WHICH HAS STOOD FOR MORE THAN 20 YEARS. 
(FN26)  AGAINST REAFFIRMANCE A DISSENT WAS WRITTEN BASED ON THE BELIEF
THAT THIS COURT'S HOLDING IN MONTANA-DAKOTA UTILITIES CO. V.
NORTHWESTERN PUB. SERV.  CO., 341 U.S. 246, REQUIRED A NEW
INTERPRETATION.  THE COURT SEEMS TO STRESS THE SAME CONTENTION HERE. 
QUITE APART FROM THE FACT THAT THE QUESTION ACTUALLY UP FOR DECISION IN
MONTANA-DAKOTA WAS WHETHER THE FEDERAL POWER ACT CREATED A FEDERAL
CAUSE OF ACTION AND NOT WHETHER IT DESTROYED COMMON-LAW RIGHTS, I
BELIEVE THAT THERE ARE IMPORTANT DIFFERENCES BETWEEN THE POWER ACT AND
THE MOTOR CARRIER ACT WHICH MAKE THE MONTANA-DAKOTA CASE WHOLLY
INAPPLICABLE HERE. 

ADMITTEDLY MONTANA-DAKOTA AND THE STATUTE IT INTERPRETED HAVE SOME
SIMILARITIES TO THESE CASES AND THIS STATUTE.  BUT UNLIKE THE CARRIER
ACT THE PROVISIONS OF THE POWER ACT UNDER CONSIDERATION IN MONTANA
DAKOTA REGULATED WHOLESALE RATES, THAT IS RATES CHARGED PURCHASERS FOR
RESALE, NOT RATES CHARGED RETAIL CUSTOMERS.  (FN27)  THE PURPOSE OF
THAT ACT WAS, NEVERTHELESS, TO BENEFIT CONSUMERS BY HOLDING DOWN
WHOLESALE PRICES.  WHOLESALERS WHOSE PURCHASE PRICE WAS REDUCED
PROSPECTIVELY COULD PASS THE REDUCTION ON TO THEIR CUSTOMERS, THE
CONSUMERS.  IN MONTANA-DAKOTA THE COURT INDICATED THAT THE CONSUMERS
WOULD NOT BE HELPED BY EX POST FACTO DETERMINATIONS OF UNREASONABLENESS
RESULTING IN A REFUND TO WHOLESALERS.  341 U.S., AT 254.  THE FACTS OF
THE CASE LENT THEMSELVES TO SUCH A FINDING.  DAMAGES WERE ASKED FOR A
BACK PERIOD OF MANY YEARS; CONSUMERS HAD LONG SINCE PAID THEIR RATES ON
THE BASIS OF THE UNREASONABLE PRICES CHARGED THE WHOLESALERS; AND THERE
WAS NO REASON TO BELIEVE THAT ANY CONSUMERS WHO BENEFITED FROM WHATEVER
LOWER PRICES THE REFUND MIGHT ALLOW WOULD BE THE SAME ONES WHO HAD PAID
THE EXCESSIVE RATES.  THE FEDERAL POWER COMMISSION, IN AN AMICUS BRIEF,
STRESSED THESE FACTS AND ARGUED THAT ANY REFUND WOULD LIKELY BE A
WINDFALL PROVIDING AN UNJUST ENRICHMENT TO THE WHOLESALER.  CITING THIS
BRIEF THE COURT ACCEPTED THE F.P.C. ARGUMENT, 341 U.S., AT 254, N. 11,
OVER A VIGOROUS DISSENT WHICH INDICATED THAT PERHAPS WAYS OF REFUNDING
THE EXCESS TO CONSUMERS MIGHT BE FOUND.  341 U.S., AT 265, 266.  NO
SIMILAR PROBLEM EXISTS UNDER THE MOTOR CARRIER ACT.  THE RELEVANT
IN FACT THE SHIPPERS ARE, IN MANY INSTANCES, THE ULTIMATE PARTIES ON
WHOM THE BURDEN FALLS.  BOTH THESE CASES ARE, OF COURSE, SUCH
INSTANCES.  AND EVEN WHEN THE SHIPPERS ARE NOT NECESSARILY THE ULTIMATE
PARTIES, THE ECONOMICS OF THE INDUSTRY IS SUCH THAT WINDFALLS TO THEM
ARE UNLIKELY. 

SIMILARLY, OTHER REASONS WHICH INDUCED THIS COURT'S HOLDING IN
MONTANA-DAKOTA ARE INAPPLICABLE HERE.  IN REFUSING TO INCLUDE IN THE
POWER ACT PROVISIONS AUTHORIZING WHOLESALERS TO SEEK REPARATIONS BEFORE
THE FEDERAL POWER COMMISSION, THE SENATE COMMITTEE WHICH REPORTED THE
BILL SAID, "THEY ARE APPROPRIATE SECTIONS FOR A STATE UTILITY LAW, BUT
THE COMMITTEE DOES NOT CONSIDER THEM APPLICABLE TO ONE GOVERNING MERELY
WHOLESALE TRANSACTIONS."  (FN29)  THIS REPORT, UNLIKE ANY IN THE MOTOR
CARRIER ACT, IS EASILY UNDERSTOOD WHEN READ IN THE LIGHT OF EVIDENCE
PRESENTED TO THE COMMITTEE CONSIDERING THE POWER ACT.  THE REPARATION
PROVISIONS OF THAT ACT WERE OPPOSED BY THE NATIONAL ASSOCIATION OF
RAILROAD AND UTILITIES COMMISSIONERS, WHOSE GENERAL SOLICITOR TOLD THE
COMMITTEE: 

"THAT IS AN ENTIRELY PROPER PROVISION IN A RAILROAD STATUTE.  WHEN A
MAN GOES TO THE RAILROAD STATION WITH A LOAD OF GOODS TO SHIP SOMEWHERE
HE HAS TO SHIP AT THE RATE THAT IS FIXED IN THE TARIFF.  HE MUST MAKE
THE SHIPMENT THEN; AND HE OUGHT TO BE ABLE TO COME THEREAFTER TO THE
COMMISSION AND SHOW THAT HE WAS REQUIRED TO PAY AN UNREASONABLE RATE,
IF IT WAS UNREASONABLE, AND TO ASK FOR A DETERMINATION OF A REASONABLE
RATE AND GET REPARATION THAT IS DUE HIM FOR ANY OVERPAYMENT.  THAT IS
PERFECTLY PROPER.  BUT THIS BILL RELATES ONLY TO SERVICE BETWEEN THE
WHOLESALE GENERATING OR PRODUCING COMPANY AND THE DISTRIBUTING
UTILITY.  WE QUESTION WHETHER THE PUBLIC INTEREST WILL BE SERVED BY
GIVING ANY COMPANY THE RIGHT TO GO AHEAD RECEIVING SERVICE AT THE
ESTABLISHED RATE FOR 2 YEARS, AND THEN TO BRING A COMPLAINT BEFORE THE
FEDERAL COMMISSION THAT THE RATE HAS BEEN UNREASONABLE."  (FN30) 

THE TESTIMONY WAS EMPHASIZED, AS SHOWN ABOVE, IN THE BRIEFS IN
MONTANA-DAKOTA.  (FN31)  DOUBTLESS THIS HISTORY LED THE MINORITY AS
WELL AS THE MAJORITY IN THAT CASE TO THE VIEW THAT "CONGRESS DID NOT
INTEND EITHER COURT OR COMMISSION TO HAVE THE POWER TO AWARD
REPARATIONS ON THE GROUND THAT A PROPERLY FILED RATE OR CHARGE HAS IN
FACT BEEN UNREASONABLY HIGH OR LOW."  341 U.S., AT 258.  SINCE THE
HISTORY OF THE MOTOR CARRIER ACT POINTS IN THE OPPOSITE DIRECTION THERE
IS NO REASON TO APPLY THE MONTANA-DAKOTA CASE TO THE MOTOR CARRIER
ACT. 

MOREOVER, IF MOTOR CARRIER SHIPPERS ARE DEPRIVED OF COURT ACTIONS TO
RECOVER FOR UNREASONABLE RATES, THEY ARE PLACED IN A MUCH WORSE
POSITION THAN WHOLESALE POWER PURCHASERS.  16 U.S.C. SEC. 824DE)
AUTHORIZES THE POWER COMMISSION TO SUSPEND RATES FOR FIVE MONTHS AND,
IF A HEARING ON THOSE RATES IS NOT CONCLUDED BY THAT TIME, TO ORDER THE
POWER COMPANY TO KEEP AN ACCURATE ACCOUNT OF THE AMOUNT AND SOURCE OF
ALL MONEY RECEIVED.  SHOULD THE RATES BE FOUND UNREASONABLE, THE
COMMISSION CAN ORDER THE EXCESS REFUNDED WITH INTEREST.  THE MOTOR
CARRIER ACT, ON THE OTHER HAND, WHILE AUTHORIZING SUSPENSION OF RATES,
HAS NO PROVISION FOR REFUNDS IF HEARINGS ARE NOT COMPLETED WHEN THE
SUSPENSION EXPIRES.  SEC. 216(G), 49 U.S.C. SEC. 316(G).  HAD THERE
BEEN SUCH A PROVISION IN THE CARRIER ACT THE GOVERNMENT WOULD HAVE BEEN
FULLY PROTECTED FROM THE RATES CHARGED IN THE DAVIDSON CASE, NO. 96. 

THE POWER ACT AND THE MOTOR CARRIER ACT ARE QUITE DIFFERENT IN
LANGUAGE, SCOPE, PURPOSE AND MEANING.  THE COURT IN MONTANA-DAKOTA
CAREFULLY LIMITED ITS HOLDING TO THE POWER ACT, E.G., 341 U.S., AT
254.  THE ARGUMENTS ADVANCED IN THAT CONTEXT FOR THE CONCLUSIVE EFFECT
OF POWER RATES ONCE FILED ARE WHOLLY INAPPLICABLE TO RATES UNDER THE
MOTOR CARRIER ACT.  IN THESE MOTOR CARRIER CASES WE HAVE 20 YEARS OF
COMMISSION INTERPRETATION, IN PART BY MEN WHO HELPED WRITE THE ACT AND
WHO ADMINISTERED IT FROM THE TIME IT FIRST WENT INTO EFFECT, TO HELP US
IN DECIDING THE QUESTION.  CONGRESS PASSED THE 1940 REVISION OF THE
MOTOR CARRIER ACT, APPARENTLY WITH FULL KNOWLEDGE OF THE COMMISSION
RULINGS WHICH INDICATED THAT SHIPPERS COULD CHALLENGE, IN THE COURTS,
CARRIER-FIXED RATES SO LONG AS THESE RATES HAD NOT BEEN EXPRESSLY HELD
REASONABLE BY THE COMMISSION.  CF. ARIZONA GROCERY CO. V. ATCHISON,
T.&S.F.R. CO., 284 U.S. 370.  THE CHANGES MADE IN 1949, AND THOSE NOT
MADE IN 1957, AGAIN INDICATE A RELIANCE ON THE COMMISSION'S
INTERPRETATION.  I BELIEVE THAT INTERPRETATION SHOULD GOVERN HERE, AND
THEREFORE WOULD AFFIRM THE JUDGMENTS OF THE COURTS OF APPEALS IN BOTH
THESE CASES. 

FN1  "THE EXACTION OF UNREASONABLE RATES BY A PUBLIC CARRIER WAS
FORBIDDEN BY THE COMMON LAW.  ... THE PUBLIC POLICY WHICH UNDERLAY THIS
RULE COULD  ...  BE VINDICATED  ...  IN AN ACTION BROUGHT BY HIM WHO
PAID THE EXCESSIVE CHARGE, TO RECOVER DAMAGES THUS SUSTAINED."  284
U.S., AT 383. 

FN2  49 STAT. 543, AS AMENDED, 49 U.S.C. SECS. 301-327.  SECTION
216(D) OF THE ACT, AS AMENDED, 49 U.S.C. SEC. 316(D), READS IN PART:
"ALL CHARGES MADE FOR ANY SERVICE RENDERED OR TO BE RENDERED BY ANY
COMMON CARRIER BY MOTOR VEHICLE ENGAGED IN INTERSTATE OR FOREIGN
COMMERCE IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY  ...  SHALL BE
JUST AND REASONABLE, AND EVERY UNJUST AND UNREASONABLE CHARGE FOR SUCH
SERVICE OR ANY PART THEREOF, IS PROHIBITED AND DECLARED TO BE
UNLAWFUL."  SEE ALSO SEC. 216(B), 49 U.S.C. SEC. 316(B).    FN3
SHALL BE HELD TO EXTINGUISH ANY REMEDY OR RIGHT OF ACTION NOT
INCONSISTENT HEREWITH." 

FN4  SEE 24 STAT. 382-384, AS AMENDED, 49 U.S.C. SECS. 8, 9, 13, 16. 

FN5  CONVERSELY MANY INSTANCES HAVE BEEN CITED OF SHIPPERS SEEKING
ONLY A DETERMINATION OF THE REASONABLENESS OF A PAST PRACTICE FROM THE
I.C.C. AND RESERVING THEIR RIGHTS TO OBTAIN DAMAGES LATER IN THE
COURTS.  SEE GENERALLY THE DISCUSSION OF THIS PROBLEM IN UNITED STATES
V. INTERSTATE COMMERCE COMM'N, 337 U.S. 426, 464-466 (DISSENTING
OPINION).  SEE ALSO UNITED STATES V. INTERSTATE COMMERCE COMM'N, 337
U.S. 426 (OPINION OF THE COURT).    FN6  SEE HEARINGS, SENATE COMMITTEE
ON INTERSTATE COMMERCE ON S. 1310, S. 2016, S. 1869, S. 2009, 76TH
CONG., 1ST SESS. 756-757, 762, 785. 

FN7  DIXIE MERCERIZING CO. V. ET & WNC MOTOR TRANSP.  CO., 21 M.C.C.
491.  THE COURT SUGGESTS THAT THIS LINE OF CASES GAVE ONLY CURSORY
TREATMENT TO THE QUESTION OF WHETHER A COURT REMEDY EXISTED.  BUT IN
BELL POTATO CHIP CO. V. ABERDEEN TRUCK LINE, 43 M.C.C. 337, 341-343,
THE I.C.C. STATED IN PART: 

"TO HOLD THAT A MOTOR CARRIER WHICH HAS VIOLATED ANY OF THESE
PRESCRIBED DUTIES IS IMMUNE TO CIVIL LIABILITY TO ONE INJURED THEREBY
WHILE RAIL AND WATER CARRIERS SIMILARLY OFFENDING MUST RESPOND IN
DAMAGES WOULD BE NOT ONLY AT VARIANCE WITH THE FUNDAMENTAL RULE OF UBI
JUS IBI REMEDIUM BUT WOULD ALSO DISREGARD THE PROVISIONS OF SECTIONS
216(J), 217(B), AND 22, WHICH PRESERVE ALL COMMON-LAW AND STATUTORY
REMEDIES.  THE STATUTE, BY DECLARING UNLAWFUL AND PROHIBITING
UNREASONABLE AND DISCRIMINATORY RATES, HAS SUPERSEDED THE COMMON-LAW
RIGHT BUT HAS NOT ABROGATED REMEDIES HERETOFORE RECOGNIZED.  SEE TEXAS
& P. RY. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, MITCHELL COAL &
COKE CO. V. PENNSYLVANIA R. CO., 230 U.S. 247, 258  ...  . 

"HOW, THEN, IS A SHIPPER WHO HAS BEEN INJURED BY THE EXACTION OF AN
UNLAWFUL MOTOR-CARRIER RATE TO OBTAIN REDRESS AGAINST AN UNWILLING
CARRIER?  THE ANSWER IS, IN THE COURTS  ...  . 

     *         *        *         *         * 

"  ...  IN THIS CONNECTION, IT MAY BE NOTED THAT IT IS A RECOGNIZED
PRACTICE TO HOLD IN ABEYANCE COURT PROCEEDINGS PENDING THE
DETERMINATION BY THE COMMISSION OF ADMINISTRATIVE QUESTIONS.  EASTERN
CENTRAL MOTOR CARRIERS ASSN. V. UNITED STATES, 321 U.S. 194; GENERAL
AMERICAN TANK CAR CORP. V. EL DORADO TERM.  CO., 308 U.S. 422; MITCHELL
COAL & COKE CO. V. PENNSYLVANIA R. CO., SUPRA; MORRISDALE COAL CO. V.
PENNSYLVANIA R. CO., 230 U.S. 304, 314; SOUTHERN RY. CO. V. TIFT, 206
U.S. 428, 434." 

FN8  54 STAT. 898. 

FN9  SEE, E.G., STATEMENT OF SENATOR REED, HEARINGS, SENATE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE ON S. 1310, S. 2016, S. 1869, S.
2009, 76TH CONG., 1ST SESS. 132. 

FN10  ID., AT 129-133. 

FN11  ID., AT 130. 

FN12  IBID. 

FN13  ID., AT 792. 

FN14  THE STATUTE EXPRESSLY DECLARES UNREASONABLE RATES UNLAWFUL. 
SEE NOTE 2, SUPRA.  BARROWS PORCELAIN ENAM.  CO. V. CUSHMAN MOTOR
DELIV.  CO., 11 M.C.C. 365, CONFIRMED THIS FACT AS TO PAST UNREASONABLE
RATES. 

FN15  SEE HEARINGS, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.R. 2324, H.R. 2295, 80TH CONG., 1ST SESS.; HEARINGS,
SENATE SUBCOMMITTEE OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
ON S. 571-H.R. 2759, S. 935, S. 1194, S. 290-2426, 80TH CONG., 2D
SESS. 

FN16  HEARINGS, HOUSE COMMITTEE, SUPRA, N. 15, AT 5-6; HEARINGS,
SENATE SUBCOMMITTEE, SUPRA, N. 15, AT 8-16. 

FN17  SEE, E.G., HEARINGS, HOUSE COMMITTEE, SUPRA, N. 15, AT 41-47,
52. 

FN18  ID., AT 41, 42. 

FN19  ID., AT 42-47. 

FN20  H.R. REP. NO. 208, 80TH CONG., 1ST SESS. 3, 4. 

FN21  THE BILL PASSED THE HOUSE OF REPRESENTATIVES BUT THE SENATE DID
NOT DEBATE IT BEFORE ADJOURNMENT.  SEE H.R. REP. NO. 766, 81ST CONG.,
1ST SESS. 1; S. REP. NO. 83, 81ST CONG., 1ST SESS. 2. 

FN22  63 STAT. 280.  SEE H.R. REP NO. 766, 81ST CONG., 1ST SESS.; S.
REP. NO. 83, 81ST CONG., 1ST SESS. 

FN23  HEARINGS, SENATE SUBCOMMITTEE OF COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE ON S. 377, S. 378, S. 937, S. 939, S. 943, 85TH CONG.,
1ST SESS. 3, 12, 49, 116-117, 137. 

FN24  ID., AT 1, 117. 

FN25  SEE, E.G., FAWCUS MACHINE CO. V. UNITED STATES, 282 U.S. 375,
378; SKIDMORE V. SWIFT & CO., 323 U.S. 134, 140; CF. CAMMARANO V.
UNITED STATES, 358 U.S. 498. 

FN26  UNITED STATES V. DAVIDSON TRANSFER & STORAGE CO., 302 I.C.C.
87. 

FN27  41 STAT. 1063, AS AMENDED, 16 U.S.C. SECS. 791A-825R. 

FN28  SEE TESTIMONY OF COMMISSIONER EASTMAN IN HEARINGS, SENATE
SUBCOMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON S. 1310, S. 2016, S.
1869, S. 2009, 76TH CONG., 1ST SESS. 792. 

FN29  S. REP. NO. 621, 74TH CONG., 1ST SESS. 20. 

FN30  HEARINGS, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON
H.R. 5423, 74TH CONG., 1ST SESS. 1685. 

FN31  SEE BRIEF OF RESPONDENT NORTHWESTERN PUB. SERV. CO., PP. 26-27;
BRIEF OF THE FEDERAL POWER COMMISSION AS AMICUS CURIAE, P. 13. 
..END :

















PATTERSON V. UNITED STATES 359 U.S. 495. 


NO. 429.  ARGUED APRIL 21, 1959 - DECIDED MAY 18, 1959 - 258 F.2D 702,
AFFIRMED. 


CIVILIAN EMPLOYEES OF THE UNITED STATES WHO ARE ENTITLED TO THE
BENEFITS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT AND WHO ARE INJURED
IN THE PERFORMANCE OF DUTY AS SEAMEN ON VESSELS OWNED AND OPERATED BY
THE GOVERNMENT AND ENGAGED IN MERCHANT SERVICE DO NOT HAVE A RIGHT OF
ACTION AGAINST THE GOVERNMENT UNDER THE SUITS IN ADMIRALTY ACT.  PP.
495-497. 

PATTERSON, GENERAL ADMINISTRATOR, ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

PETITIONERS, MELVIN A. HAYS, STERLING E. DUNCAN, AND LEONARD L.
SULLIVAN, WERE INJURED IN THE COURSE OF THEIR EMPLOYMENT WITH THE
UNITED STATES WHILE ABOARD VESSELS OPERATED BY THE GOVERNMENT AND
ENGAGED IN MERCHANT SERVICE.  PETITIONER PATTERSON IS THE ADMINISTRATOR
OF THE ESTATE OF EDGAR A. DOODY, JR., WHO DIED AS A RESULT OF INJURIES
SUSTAINED BY HIM WHILE HE WAS SIMILARLY EMPLOYED.  EACH OF THE
PETITIONERS FILED A LIBEL IN PERSONAM AGAINST THE UNITED STATES UNDER
THE SUITS IN ADMIRALTY ACT, 41 STAT. 525 ET SEQ., 46 U.S.C. SEC.  741
ET SEQ. THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED DISMISSAL
OF THE LIBELS ON THE GROUND THAT PETITIONERS' EXCLUSIVE REMEDY WAS
UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, 39 STAT. 742 ET SEQ., 5
U.S.C. SEC. 751 ET SEQ., 258 F.2D 702.  WE GRANTED CERTIORARI, 358 U.S.
898, TO RESOLVE A CONFLICT BETWEEN THE DECISION BELOW AND THAT OF THE
COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN INLAND WATERWAYS CORP. V.
DOYLE, 204 F.2D 874. 

IN JOHANSEN V. UNITED STATES, 343 U.S. 427, 441, THE COURT HELD "THAT
THE FEDERAL EMPLOYEES COMPENSATION ACT IS THE EXCLUSIVE REMEDY FOR
CIVILIAN  ...  " EMPLOYEES OF THE UNITED STATES ON GOVERNMENT VESSELS
ENGAGED IN PUBLIC SERVICE AND THAT THE UNITED STATES WAS THEREFORE NOT
LIABLE TO SUCH EMPLOYEES UNDER THE PUBLIC VESSELS ACT.  43 STAT. 1112
ET SEQ., 46 U.S.C. SEC. 781 ET SEQ. THE CONSIDERATIONS WHICH LED TO
THAT CONCLUSION ARE EQUALLY APPLICABLE TO CASES WHERE THE GOVERNMENT
VESSEL IS ENGAGED IN MERCHANT SERVICE.  THE UNITED STATES "HAS
ESTABLISHED BY THE COMPENSATION ACT A METHOD OF REDRESS FOR ITS
EMPLOYEES.  THERE IS NO REASON TO HAVE TWO SYSTEMS OF REDRESS."  343
U.S., AT 439.  (FN1) 

THE MAJOR PORTION OF PETITIONERS' ARGUMENT, HOWEVER, IS ADDRESSED TO
THE PROPOSITION THAT JOHANSEN WAS INCORRECTLY DECIDED AND THAT WE
SHOULD AVAIL OURSELVES OF THIS OPPORTUNITY TO RECONSIDER IT.  WE
DECLINE TO DO SO.  NO ARGUMENTS ARE PRESENTED BY PETITIONERS WHICH WERE
NOT FULLY CONSIDERED IN JOHANSEN AND REJECTED.  "WHEN THE QUESTIONS ARE
OF STATUTORY CONSTRUCTION, NOT OF CONSTITUTIONAL IMPORT, CONGRESS CAN
RECTIFY OUR MISTAKE, IF SUCH IT WAS, OR CHANGE ITS POLICY AT ANY TIME,
AND IN THESE CIRCUMSTANCES REVERSAL IS NOT READILY TO BE MADE."  UNITED
STATES V. SOUTH BUFFALO R. CO., 333 U.S. 771, 774-775.  IF CIVILIAN
SEAMEN EMPLOYED BY THE GOVERNMENT ARE TO BE ACCORDED RIGHTS DIFFERENT
FROM OR GREATER THAN THOSE WHICH THEY ENJOY UNDER THE COMPENSATION ACT,
IT IS FOR CONGRESS TO PROVIDE THEM.  (FN2) 

ACCORDINGLY, THE JUDGMENTS OF DISMISSAL ENTERED AGAINST PETITIONERS
HAYS, DUNCAN, SULLIVAN, AND PATTERSON ARE AFFIRMED.  WE ALSO AFFIRM
DISMISSAL OF THE LIBEL FILED BY PETITIONER VALLEBUONA, WHO HAS CONCEDED
THAT HE COULD PREVAIL ONLY IF JOHANSEN WERE OVERRULED.  AFFIRMED. 

FN1  IT IS WORTHY OF NOTE THAT IN JOHANSEN THE COURT EXPRESSLY
DISAPPROVED THE DECISION IN UNITED STATES V. MARINE, 155 F.2D 456, IN
WHICH A CIVILIAN EMPLOYEE OF THE GOVERNMENT WAS AWARDED DAMAGES UNDER
THE SUITS IN ADMIRALTY ACT FOR INJURIES SUSTAINED BY HIM WHILE ABOARD A
VESSEL OPERATED BY THE UNITED STATES IN THE MERCHANT SERVICE. 

FN2  THE CLARIFICATION ACT OF 1943, 57 STAT. 45, 50 U.S.C. APP. SEC.
1291, INDICATES THAT CONGRESS HAS CHOSEN WITH CARE THE REMEDIES WHICH
IT HAS MADE AVAILABLE TO CIVILIAN SEAMEN EMPLOYED BY THE UNITED
STATES.  THAT LEGISLATION PROVIDED THAT "OFFICERS AND MEMBERS OF CREWS
...  EMPLOYED ON UNITED STATES OR FOREIGN FLAG VESSELS AS EMPLOYEES OF
THE UNITED STATES THROUGH THE WAR SHIPPING ADMINISTRATION,  ...
BECAUSE OF THE TEMPORARY WARTIME CHARACTER OF THEIR EMPLOYMENT BY THE
WAR SHIPPING ADMINISTRATION, SHALL NOT BE CONSIDERED AS OFFICERS OR
EMPLOYEES OF THE UNITED STATES FOR THE PURPOSES OF THE UNITED STATES
EMPLOYEES COMPENSATION ACT, AS AMENDED  ...  ." 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :












DEVRIES V. BAUMGARTNER'S ELECTRIC CONSTRUCTION CO. 359 U.S. 498 


NO. 551.  DECIDED MAY 18, 1959 - CERTIORARI GRANTED AND JUDGMENT
REVERSED - REPORTED BELOW:  77 S.D. - 91 N.W.2D 663. 


DEVRIES ET AL. V. BAUMGARTNER'S ELECTRIC CONSTRUCTION CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH
DAKOTA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
REVERSED.  SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, ANTE, P. 236. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE WHITTAKER, AND MR.
JUSTICE STEWART DISSENT FOR THE REASONS SET FORTH IN THE CONCURRING
OPINION IN SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, ANTE, PP. 236,
249. 
..END :











ANDERSON V. CITY OF CEDAR RAPIDS 359 U.S. 498 


NO. 786.  DECIDED MAY 18, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  250 IOWA - , 93 N.W.2D
216. 


ANDERSON ET AL. V. CITY OF CEDAR RAPIDS. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















DYER V. SECURITIES AND EXCHANGE COMMISSION 359 U.S. 499 


NO. 67.  DECIDED MAY 18, 1959 - REPORTED BELOW:  251 F.2D 512. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED FOR FURTHER
CONSIDERATION. 

DYER ET AL. V. SECURITIES AND EXCHANGE COMMISSION ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT IS VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR FURTHER CONSIDERATION IN THE
LIGHT OF ITS DECISION IN DYER V. SECURITIES & EXCHANGE COMM'N, NO.
15989, DECIDED APRIL 10, 1959, 266 F.2D 33. 
..END :










CADY V. IOWA 359 U.S. 499 


NO. 718, MISC.  DECIDED MAY 18, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CADY V. IOWA. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















SCULL V. VIRGINIA, COMMITTEE ON LAW REFORM AND RACIAL ACTIVITIES 359
U.S. 344 


NO. 51.  ARGUED NOVEMBER 18, 1958 - DECIDED MAY 4, 1959 - REVERSED. 


PETITIONER WAS CONVICTED IN A STATE COURT OF CONTEMPT AND SENTENCED TO
FINE AND IMPRISONMENT FOR REFUSING TO OBEY AN ORDER OF THAT COURT TO
ANSWER CERTAIN QUESTIONS PUT TO HIM BY AN INVESTIGATING COMMITTEE OF
THE STATE LEGISLATURE.  THE EVENTS LEADING TO HIS SUBPOENA, AS WELL AS
THE QUESTIONS ASKED HIM, MADE IT CLEAR THAT THE COMMITTEE'S
INVESTIGATION TOUCHED THE AREA OF FREE SPEECH, PRESS AND ASSOCIATION;
AND THE RECORD SHOWED THAT THE PURPOSES OF OF THE INQUIRY, AS ANNOUNCED
BY THE CHAIRMAN OF THE COMMITTEE, WERE SO UNCLEAR AND CONFLICTING THAT
PETITIONER DID NOT HAVE A FAIR OPPORTUNITY OF UNDERSTANDING THE BASIS
OF THE QUESTIONS OR ANY JUSTIFICATION ON THE COMMITTEE'S PART FOR
SEEKING THE INFORMATION HE REFUSED TO GIVE.  HELD:  HIS CONVICTION
VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, SINCE HE
WAS NOT GIVEN A FAIR OPPORTUNITY, AT THE PERIL OF CONTEMPT, TO
DETERMINE WHETHER HE WAS WITHIN HIS RIGHTS IN REFUSING TO ANSWER.  HE
CANNOT BE SENT TO JAIL FOR A CRIME HE COULD NOT WITH REASONABLE
CERTAINTY KNOW HE WAS COMMITTING.  PP. 344-353. 

SCULL V. VIRGINIA EX REL. COMMITTEE ON LAW REFORM AND RACIAL
ACTIVITIES. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
HARLAN. 

DAVID H. SCULL WAS CONVICTED OF CONTEMPT IN THE CIRCUIT COURT OF
ARLINGTON COUNTY, VIRGINIA, FOR REFUSING TO OBEY A DECISION OF THAT
COURT ORDERING HIM TO ANSWER A NUMBER OF QUESTIONS PUT TO HIM BY A
LEGISLATIVE INVESTIGATIVE COMMITTEE OF THE VIRGINIA GENERAL ASSEMBLY. 
ON APPEAL THE VIRGINIA SUPREME COURT OF APPEALS AFFIRMED WITHOUT
OPINION.  SCULL CONTENDED AT THE COMMITTEE HEARINGS, IN THE COURTS
BELOW, AND IN THIS COURT THAT THE VIRGINIA STATUTE AUTHORIZING THE
INVESTIGATION, BOTH ON ITS FACE AND AS APPLIED, VIOLATED THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.  HE CLAIMED, AMONG OTHER
THINGS, THAT:  (1) THE COMMITTEE WAS "ESTABLISHED AND GIVEN
INVESTIGATIVE AUTHORITY, AS PART OF A LEGISLATIVE PROGRAM OF 'MASSIVE
RESISTANCE' TO THE UNITED STATES CONSTITUTION AND THE SUPREME COURT'S
DESEGREGATION DECISIONS, IN ORDER TO HARASS, VILIFY, AND PUBLICLY
EMBARRASS MEMBERS OF THE NAACP AND OTHERS WHO ARE ATTEMPTING TO SECURE
INTEGRATED PUBLIC SCHOOLING IN VIRGINIA."  (2) THE QUESTIONS ASKED HIM
VIOLATED HIS RIGHTS OF FREE SPEECH, ASSEMBLY AND PETITION BY
CONSTITUTING AN UNJUSTIFIED RESTRAINT UPON HIS ASSOCIATIONS WITH OTHERS
IN "LEGAL AND LAUDABLE POLITICAL AND HUMANITARIAN CAUSES."  (3) "THE
INFORMATION SOUGHT FROM HIM WAS NEITHER INTENDED TO, NOR COULD
REASONABLY BE EXPECTED TO, ASSIST THE LEGISLATURE IN ANY PROPER
LEGISLATIVE FUNCTION."  (4) DESPITE HIS REQUESTS, REPEATED AT EVERY
STAGE OF THE PROCEEDINGS, THE COMMITTEE FAILED TO INFORM HIM "IN WHAT
RESPECT ITS QUESTIONS WERE PERTINENT TO THE SUBJECT UNDER INQUIRY  ...
."  WE GRANTED CERTIORARI TO CONSIDER THESE CONSTITUTIONAL CHALLENGES
TO THE VALIDITY OF PETITIONER'S CONTEMPT CONVICTION.  357 U.S. 903. 
AFTER CAREFUL CONSIDERATION, WE FIND IT UNNECESSARY TO PASS ON ANY OF
THESE CONSTITUTIONAL QUESTIONS EXCEPT THE LAST ONE BECAUSE WE THINK THE
RECORD DISCLOSES AN UNMISTAKABLE CLOUDINESS IN THE TESTIMONY OF THE
COMMITTEE CHAIRMAN AS TO WHAT WAS SOUGHT OF SCULL, AS WELL AS WHY IT
WAS SOUGHT.  SCULL WAS THEREFORE NOT GIVEN A FAIR OPPORTUNITY, AT THE
PERIL OF CONTEMPT, TO DETERMINE WHETHER HE WAS WITHIN HIS RIGHTS IN
REFUSING TO ANSWER AND CONSEQUENTLY HIS CONVICTION MUST FALL UNDER THE
PROCEDURAL REQUIREMENTS OF THE FOURTEENTH AMENDMENT. 

SCULL IS A PRINTER AND CALENDAR PUBLISHER IN ANNANDALE, VIRGINIA,
WHERE HE HAS BEEN A LONG-TIME RESIDENT ACTIVE IN RELIGIOUS, CIVIC AND
WELFARE GROUPS.  SOON AFTER THIS COURT'S DECISION IN BROWN V. BOARD OF
EDUCATION, 347 U.S. 483, HOLDING SEGREGATION IN THE PUBLIC SCHOOLS TO
BE UNCONSTITUTIONAL, SCULL BEGAN TO ADVOCATE COMPLIANCE WITH THE
REQUIREMENTS OF THE BROWN CASE.  IN DECEMBER OF 1954, SCULL AND A GROUP
OF OTHER CITIZENS MET AT A CHURCH IN ALEXANDRIA TO CONSIDER AND DISCUSS
"THE PART WHICH CONCERNED AND CONSCIENTIOUS CITIZENS CAN BEST PLAY IN
HELPING TO ACHIEVE THE COMMUNITY ADJUSTMENTS NECESSARY TO PROTECT THE
EDUCATIONAL AND CONSTITUTIONAL RIGHTS OF ALL CITIZENS AS RECENTLY
DEFINED AND AND INTERPRETED BY THE SUPREME COURT OF THE UNITED
STATES."  THE GROUP DECIDED TO PREPARE AND PUBLISH THROUGH A "CITIZENS
CLEARING HOUSE ON PUBLIC EDUCATON" INFORMATION ABOUT THE VIRGINIA
EDUCATIONAL PROGRAM AND TO REPORT ON THE PROGRESS MADE BY VARIOUS
PARENT-TEACHER ASSOCIATIONS IN NORTHERN VIRGINIA IN DEVELOPING PROGRAMS
FOR "ORDERLY INTEGRATION." 

ONE OF THE NEWSLETTERS PUBLISHED BY THE CLEARING HOUSE WAS OBTAINED
BY THE FAIRFAX CITIZENS' COUNCIL, A GROUP WHICH VIGOROUSLY OPPOSED ANY
DESEGREGATION OF VIRGINIA SCHOOLS.  THE COUNCIL REPUBLISHED A LARGE
PART OF THE LETTER IN A PAMPHLET ENTITLED "THE SHOCKING TRUTH]"   IT
CALLED ATTENTION TO THE FACT THAT THE NEWSLETTER WAS BEING
"DISSEMINATED THROUGH BOX 218, ANNANDALE, VA. (DAVID SCULL)," AND
STATED THAT "COMMUNICATIONS WITH THE N.A.A.C.P., SOUTHERN REGIONAL
COUNCIL, CLEARING HOUSE, B'NAI B'RITH, COUNCIL ON HUMAN RELATIONS,
AMERICAN FRIENDS AND MANY OTHER PRO-INTEGRATION GROUPS ARE FUNNELED
THROUGH BOX 218, ANNANDALE, VA., AND MEMBERSHIP ISENCOURAGED IF NOT
ACTUALLY SUGGESTED BY THE P.T.A.  FEDERATION." 

THE PAMPHLET CAME TO THE ATTENTION OF DELEGATE JAMES M. THOMSON,
CHAIRMAN OF THE VIRGINIA COMMITTEE ON LAW REFORM AND RACIAL ACTIVITIES,
WHO PROMPTLY SUBPOENAED SCULL TO APPEAR AND TESTIFY.  THIS GROUP,
COMMONLY CALLED THE "THOMSON COMMITTEE," WAS ESTABLISHED A FEW MONTHS
AFTER THE VIRGINIA GENERAL ASSEMBLY ADOPTED A RESOLUTION ATTACKING THE
BROWN DECISION AND PLEDGING THAT THE LEGISLATURE WOULD TAKE ALL
CONSTITUTIONALLY AVAILABLE MEASURES TO RESIST DESEGREGATION IN THE
PUBLIC SCHOOLS.  (FN1)  THE BILL SETTING UP THE "THOMSON COMMITTEE" WAS
ONE OF A SERIES RELATING TO SEGREGATION PASSED ON THE SAME DAY.  AMONG
THESE WERE BILLS ESTABLISHING A PUPIL-ASSIGNMENT PLAN, PROVIDING FOR
THE WITHDRAWAL OF STATE FUNDS FROM INTEGRATED SCHOOLS AND FORBIDDING
BARRATRY, CHAMPERTY AND MAINTENANCE.  (FN2)  WHILE THEY DID NOT MENTION
THE NAACP BY NAME, CHAIRMAN THOMSON TESTIFIED BELOW THAT IN THE COURSE
OF THE "LEGISLATIVE BATTLE" OVER THEM HE HAD STATED THAT WITH "THIS SET
OF BILLS ...  'WE CAN BUST THAT ORGANIZATION  ...  WIDE OPEN.'" 

SCULL APPEARED BEFORE THE THOMSON COMMITTEE, AS ORDERED.  HE ANSWERED
SEVERAL QUESTIONS ABOUT HIS PUBLISHING BUSINESS, AND THEN WAS ASKED
WHETHER HE BELONGED "TO AN ORGANIZATION KNOWN AS THE FAIRFAX COUNTY
COUNCIL ON HUMAN RELATIONS."  HE REPLIED THAT "ON ADVICE OF COUNSEL I
WISH TO STATE THAT THE LANGUAGE OF THE SUBPOENA DELIVERED TO ME WAS SO
BROAD AND VAGUE  ...  THAT BEFORE GOING FURTHER I WISH TO ASK YOU TO
TELL ME THE SPECIFIC SUBJECT OF YOUR INQUIRY TODAY, SO THAT I MAY JUDGE
WHICH OF YOUR QUESTIONS ARE PERTINENT."  CHAIRMAN THOMSON TOLD HIM THAT
THE GENERAL SUBJECTS UNDER INQUIRY WERE "THREEFOLD":  (1) THE TAX
STATUS OF RACIAL ORGANIZATIONS AND OF CONTRIBUTIONS TO THEM; (2) THE
EFFECT OF INTEGRATION OR ITS THREAT ON THE PUBLIC SCHOOLS OF VIRGINIA
AND ON THE STATE'S GENERAL WELFARE; AND (3) THE VIOLATION OF CERTAIN
STATUTES AGAINST "CHAMPERTY, BARRATRY, AND MAINTENANCE, OR THE
UNAUTHORIZED PRACTICE OF THE LAW."  (FN3)  HE TOLD SCULL, HOWEVER, THAT
SEVERAL OF THESE SUBJECTS "PRIMARILY DO NOT DEAL WITH YOU."  SCULL THEN
FILED A STATEMENT OF HIS OBJECTIONS TO THE QUESTIONING AND EMPHASIZED
THAT HE HAD NOT BEEN "PROPERLY INFORMED OF THE SUBJECT OF INQUIRY." 
WITHOUT CLARIFYING CHAIRMAN THOMSON'S AMBIGUOUS STATEMENT OR SPECIFYING
WHICH OF THE "SEVERAL" SUBJECTS DID NOT APPLY TO SCULL, THE COMMITTEE
PROCEEDED TO ASK THE 31 QUESTIONS LISTED IN THE FOOTNOTE BELOW.  (FN4) 

IT IS DIFFICULT TO SEE HOW SOME OF THESE QUESTIONS HAVE ANY
RELATIONSHIP TO THE SUBJECTS THE COMMITTEE WAS AUTHORIZED TO
INVESTIGATE, OR HOW SCULL COULD POSSIBLY DISCOVER ANY SUCH RELATIONSHIP
FROM THE CHAIRMAN'S STATEMENT.  (FN5)  IT DOES SEEM THAT SEVERAL OF THE
QUESTIONS ASKED WERE AIMED AT CONNECTING SCULL WITH BARRATRY OR
CHAMPERTY, BUT IT WAS NEVER MADE WHOLLY CLEAR TO SCULL, EITHER BEFORE
OR AFTER THE QUESTIONING, THAT THIS WAS ONE OF THE SUBJECTS UNDER
INQUIRY AS FAR AS HE WAS CONCERNED.  NEVERTHELESS, SCULL WAS CITED TO
APPEAR BEFORE THE CIRCUIT COURT TO SHOW CAUSE WHY HE SHOULD NOT BE
COMPELLED TO ANSWER. 

IN THE CIRCUIT COURT THE CHAIRMAN SOUGHT TO EXPLAIN HIS AMBIGUOUS
STATEMENTS ABOUT THE SCOPE OF THE INVESTIGATION.  FAR FROM CLARIFYING
THE MATTER, HOWEVER, HIS TESTIMONY ADDED TO THE CONFUSION, SINCE HE
SUCCESSIVELY RULED OUT AS INAPPLICABLE TO SCULL EACH OF THE SUBJECTS
WHICH THE LEGISLATURE HAD AUTHORIZED THE COMMITTEE TO INVESTIGATE.  ON
FIRST BEING ASKED WHICH OF THE THREE SUBJECTS APPLIED TO SCULL, HE
TESTIFIED: 

"FOR MY PERSONAL STANDPOINT, I WOULD SAY THAT THE ONE DEALING WITH
THE TAXABLE STATUS DOES NOT AFFECT HIM HERE, AND LIKEWISE THE ONE - I
HAVE FORGOTTEN WHETHER I STATE IT OR NOT, BUT I WOULD THINK THAT THE
INTEGRATION OR THE THREAT OF INTEGRATION ON PUBLIC SCHOOL SYSTEMS, ON
THE GENERAL WELFARE, WOULD APPLY. 

"LOOKING AT IT IN RETROSPECT, THE OTHER ONE CHAMPERTY, BARRATRY, AND
MAINTENANCE WOULD NOT APPLY.  I DON'T RECALL WHETHER I DID SAY OR DID
NOT SAY.  WE DID SPECIFICALLY WITH THE THIRD ONE: CHAMPERTY, BARRATRY,
AND MAINTENANCE." 

LATER THE FOLLOWING COLLOQUY TOOK PLACE: 

COUNSEL FOR SCULL:  "Q.  NOW, IS IT ALSO CORRECT THAT YOU SAID
SEVERAL WHICH PRIMARILY DO NOT DEAL WITH YOU?" 

CHAIRMAN THOMSON:  "A.  IF THE TRANSCRIPT SAYS IT THERE, I SAID IT. 

"Q.  WHICH OF THOSE THREE WERE YOU REFERRING TO WHEN YOU SAID,
'SEVERAL WHICH PRIMARILY DO NOT DEAL WITH YOU'? 

"A.  I THINK IT IS THE LAST MENTIONED THERE.  THE LAST MENTIONED WAS
BARRATRY. 

"Q.  WOULD YOU JUST STATE FOR THE RECORD SO THAT IT IS CLEAR ON THE
RECORD WHICH ONES YOU WERE REFERRING TO THAT DID NOT DEAL WITH MR.
SCULL? 

"A.  THE VIOLATION OF THOSE STATUTES DEALING WITH CHAMPERTY,
BARRATRY, AND MAINTENANCE, AND GENERAL UNAUTHORIZED PRACTICE OF THE
LAW. 

"Q.  THOSE DID NOT DEAL WITH MR. SCULL? 

"A.  NO, NO; I THINK IN THE CONNECTION THAT WE ARE DEALING WITH HERE,
THAT THE ONES SPOKEN OF FIRST DID NOT APPLY; ONLY THE LATTER ONE DID
APPLY THAT I WAS MAKING. 

     *         *         *         *         * 

"Q. NOW I AM CONFUSED." 

SUBSEQUENTLY, CHAIRMAN THOMSON STATED THAT BARRATRY APPLIED TO A
CERTAIN "SECTION OF THE TESTIMONY" BUT DID NOT IDENTIFY WHICH SECTION. 
STILL LATER HE UNDERTOOK TO SPECIFY THE SECTION BUT INSTEAD OF DOING SO
HE MADE WHAT MAY HAVE BEEN A GENERAL RETRACTION AND SAID, "THE WHOLE
STATEMENT WOULD BE APPLICABLE TO THE ENTIRE TRANSCRIPT AND THE FACT
THAT HE WAS ADVISED OF EACH ONE OF THEM WOULD BE APPLICABLE TO THE
ENTIRE TRANSCRIPT." 

THE JUDGE WHO ORDERED SCULL TO ANSWER THE QUESTIONS MADE NO CLEARER
STATEMENT OF THEIR PERTINENCE TO THE INVESTIGATION OR TO BASIC STATE
INTERESTS THAN HAD THE COMMITTEE CHAIRMAN.  HIS HOLDING WAS MERELY THAT
"THE QUESTIONS ARE OF A PRELIMINARY NATURE AND IN DEVELOPING THE
INQUIRY TO SECURE THE INFORMATION WHICH THE COMMITTEE IS AFTER APPEARS
TO THE COURT TO BE PERFECTLY PROPER LINE OF INQUIRY."  HE AT NO TIME
ANALYZED THE INDIVIDUAL QUESTIONS ASKED, NOR EXPLAINED TO SCULL WHAT IT
WAS THAT THE COMMITTEE WANTED FROM HIM AND HOW THE QUESTIONS PUT TO HIM
RELATED TO THESE DESIRES. 

THE EVENTS LEADING TO SCULL'S SUBPOENA, AS WELL AS THE QUESTIONS
ASKED HIM, MAKE IT UNMISTAKABLY CLEAR THAT THE COMMITTEE'S
INVESTIGATION TOUCHED AN AREA OF SPEECH, PRESS, AND ASSOCIATION OF
VITAL PUBLIC IMPORTANCE.  (FN6)  IN NAACP V. ALABAMA, 357 U.S. 449, 460
466, THIS COURT HELD THAT SUCH AREAS OF INDIVIDUAL LIBERTY CANNOT BE
INVADED UNLESS A COMPELLING STATE INTEREST IS CLEARLY SHOWN.  (FN7)
BUT WE DO NOT REACH THAT QUESTION BECAUSE THE RECORD SHOWS THAT THE
PURPOSES OF THE INQUIRY, AS ANNOUNCED BY THE CHAIRMAN, WERE SO UNCLEAR,
IN FACT CONFLICTING, THAT SCULL DID NOT HAVE AN OPPORTUNITY OF
UNDERSTANDING THE BASIS FOR THE QUESTIONS OR ANY JUSTIFICATION ON THE
PART OF THE COMMITTEE FOR SEEKING THE INFORMATION HE REFUSED TO GIVE. 
SEE WATKINS V. UNITED STATES, 354 U.S. 178, 208-209, 214-215.  TO
SUSTAIN HIS CONVICTION FOR CONTEMPT UNDER THESE CIRCUMSTANCES WOULD BE
TO SEND HIM TO JAIL FOR A CRIME HE COULD NOT WITH REASONABLE CERTAINTY
KNOW HE WAS COMMITTING.  THIS COURT HAS OFTEN HELD THAT FUNDAMENTAL
FAIRNESS REQUIRES THAT SUCH REASONABLE CERTAINTY EXIST.  SEE LANZETTA
V. NEW JERSEY, 306 U.S. 451, 453; JORDAN V. DE GEORGE, 341 U.S. 223,
230; WATKINS V. UNITED STATES, 354 U.S. 178, 208-209, 214-215, 217;
FLAXER V. UNITED STATES, 358 U.S. 147, 151.  CERTAINTY IS ALL THE MORE
ESSENTIAL WHEN VAGUENESS MIGHT INDUCE INDIVIDUALS TO FOREGO THEIR
RIGHTS OF SPEECH, PRESS, AND ASSOCIATION FOR FEAR OF VIOLATING AN
UNCLEAR LAW.  WINTERS V. NEW YORK, 333 U.S. 507.  SUCH IS PLAINLY THE
CASE HERE.  THE INFORMATION GIVEN TO SCULL WAS FAR TOO WAVERING,
CONFUSED AND CLOUDY TO SUSTAIN HIS CONVICTION. 

THE CASE IS REVERSED AND REMANDED TO THE VIRGINIA SUPREME COURT OF
APPEALS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  SEE VA. ACTS 1956, S.J. RES. 3. 

FN2  SEE GENERALLY, VA. ACTS, E.S. 1956, CC. 31-37, 56-71. 

FN3  THE COMMITTEE WAS AUTHORIZED TO:  "MAKE A THOROUGH INVESTIGATION
OF THE ACTIVITIES OF CORPORATIONS, ORGANIZATIONS, ASSOCIATIONS AND
OTHER LIKE GROUPS WHICH SEEK TO INFLUENCE, ENCOURAGE OR PROMOTE
LITIGATION RELATING TO RACIAL ACTIVITIES IN THIS STATE.  THE COMMITTEE
SHALL CONDUCT ITS INVESTIGATION SO AS TO COLLECT EVIDENCE AND
INFORMATION WHICH SHALL BE NECESSARY OR USEFUL IN: 

"(1)  DETERMINING THE NEED, OR LACK OF NEED, FOR LEGISLATION WHICH
WOULD ASSIST IN THE INVESTIGATION OF SUCH ORGANIZATIONS, CORPORATIONS
AND ASSOCIATIONS RELATIVE TO THE STATE INCOME TAX LAWS: 

"(2)  DETERMINING THE NEED, OR LACK OF NEED, FOR LEGISLATION
REDEFINING THE TAXABLE STATUS OF SUCH CORPORATIONS, ASSOCIATIONS,
ORGANIZATIONS AND OTHER GROUPS, AS ABOVE REFERRED TO, AND FURTHER
DEFINING THE STATUS OF DONATIONS TO SUCH ORGANIZATIONS OR CORPORATIONS
FROM A TAXATION STANDPOINT; AND:    "(3)  DETERMINING THE EFFECT WHICH
INTEGRATION OR THE THREAT OF INTEGRATION COULD HAVE ON THE OPERATION OF
THE PUBLIC SCHOOLS IN THE STATE OR THE GENERAL WELFARE OF THE STATE AND
WHETHER THE LAWS OF BARRATRY, CHAMPERTY AND MAINTENANCE ARE BEING
VIOLATED IN CONNECTION THEREWITH."  VA. ACTS, E.S. 1956, C. 37. 

FN4  (1)  "ARE YOU A MEMBER OF THE FAIRFAX COUNTY COUNCIL ON HUMAN
RELATIONS?" 

(2)  "ARE YOU A MEMBER OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE?' 

(3)  "HAVE YOU CONTRIBUTED TO ANY OF THE SUITS, CONTRIBUTED
FINANCIALLY TO ANY OF THE SUITS DESIGNED TO BRING ABOUT RACIAL
INTEGRATION IN THE PUBLIC SCHOOLS?'    (4)  "HAVE YOU PAID COURT COSTS
IN ANY OF THE SUITS DESIGNED TO BRING ABOUT RACIAL INTEGRATION IN THE
STATE OF VIRGINIA?" 

(5)  "HAVE YOU PAID ATTORNEYS' FEES TO ANY ATTORNEYS IN REGARD TO
RACIAL LITIGATION INVOLVED IN THE INTEGRATION OF THE PUBLIC SCHOOLS IN
VIRGINIA?' 

(6)  "HAVE YOU ATTENDED ANY MEETINGS AT WHICH THE FORMULATION OF
SUITS AGAINST THE STATE OF VIRGINIA IN RACIAL INTEGRATION SUITS IN THE
PUBLIC SCHOOLS HAVE BEEN DISCUSSED?" 

(7)  "I NOTICE IN YOUR STATEMENT THAT YOU SAY THAT YOU THINK YOU HAVE
A MORAL DUTY TO COUNSEL WITH A FELLOW CITIZEN AS TO HIS LEGAL RIGHTS IF
HE IS IGNORANT OF THEM.  DO YOU FEEL QUALIFIED TO COUNSEL WITH HIM AS
TO HIS LEGAL RIGHTS?' 

(8)  "WHO ELSE USES THAT BOX NUMBER (NO. 218 IN ANNANDALE, VA.) 
BESIDES YOURSELF?" 

(9)  "DOES THE FAIRFAX COUNTY COUNCIL ON HUMAN RELATIONS USE THAT
BOX?" 

(10)  "HAS THE NAACP USED THAT NUMBER FROM TIME TO TIME?" 

(11)  "HAS THE ORGANIZATION KNOWN AS THE CITIZENS CLEARING HOUSE USED
THAT BOX NUMBER?" 

(12)  "HAS THE FAIRFAX COUNTY FEDERATION OF PTA'S USED THAT NUMBER?" 

(13)  "HAS THE FAIRFAX COUNTY FEDERATION OF P-TA WORKSHOPS ON SUPREME
COURT DECISIONS ON THE PUBLIC SCHOOLS USED THAT BOX NUMBER?" 

(14)  "HAS MISS CAROLINE H. PLANCK OR MRS. BARBARA MARX USED THAT BOX
NUMBER?" 

(15)  "DO YOU KNOW MRS. PLANCK OR MRS. MARX?" 

(16)  "HAS DR. E.B. HENDERSON USED THAT BOX NUMBER?" 

(17)  "HAS THE NATIONAL CONFERENCE OF CHRISTIANS AND JEWS USED THAT
BOX NUMBER?" 

(18)  "HAS THE SAVE OUR SCHOOLS COMMITTEE OF FAIRFAX COUNTY USED THAT
BOX NUMBER?" 

(19)  "HAS MR. WARREN D. QUENSTEDT USED THAT BOX?" 

(20)  "HAS MR. E.A. PRICHARD USED THAT NUMBER?" 

(21)  "HAS THE AMERICAN CIVIL LIBERTIES UNION USED THAT SAME BOX
NUMBER?" 

(22)  "HAS THE AMERICANS FOR DEMOCRATIC ACTION, KNOWN AS ADA, USED
THAT BOX NUMBER?" 

(23)  "HAS THE JAPANESE-AMERICAN CITIZENS LEAGUE USED THAT BOX
NUMBER?" 

(24)  "HAS THE WASHINGTON INTER-RACIAL WORKSHOP USED THAT SAME
NUMBER?" 

(25)  "HAS THE AMERICAN FRIENDS SERVICE COMMITTEE USED THAT BOX
NUMBER?" 

(26)  "DOES THE COMMUNITY COUNCIL FOR SOCIAL PROGRESS USE THE SAME
BOX NUMBER?" 

(27)  "DOES B'NAI BRITH USE THAT SAME BOX NUMBER?" 

(28)  "DOES THE COMMUNIST PARTY USE THAT BOX NUMBER?" 

(29)  "DO YOU BELONG TO ANY RACIAL ORGANIZATION, AND BY 'RACIAL' I
MEAN ORGANIZATIONS WHOSE MEMBERSHIP IS INTERRACIAL IN CHARACTER OR
ORGANIZATIONS THAT ARE INSTITUTING OR FOSTERING RACIAL LITIGATION?" 

(30)  "HAVE YOU EVER BEEN CALLED AS A WITNESS BEFORE ANY
CONGRESSIONAL COMMITTEE?" 

(31)  "HAS YOUR NAME EVER BEEN CITED BY ANY CONGRESSIONAL COMMITTEE
AS BEING ON ANY LIST OF MEMBERS OF ANY ORGANIZATIONS THAT ARE CITED AS
SUBVERSIVE?" 

FN5  QUESTION 28 ASKED IF THE COMMUNIST PARTY USED BOX 218; QUESTION
30 ASKED IF SCULL HAD EVER BEEN CALLED AS A WITNESS BEFORE A
CONGRESSIONAL COMMITTEE; QUESTION 31 ASKED IF HIS NAME HAD EVER BEEN
CITED BY ANY ORGANIZATIONS THAT ARE CITED AS SUBVERSIVE.  NOTHING IN
THE LANGUAGE OF THE ACT AUTHORIZING THE COMMITTEE OR IN THE STATEMENT
OF CHAIRMAN THOMSON ABOUT THE SUBJECTS UNDER INQUIRY COULD LEAD SCULL
TO THINK THAT IT WAS THE COMMITTEE'S DUTY TO INVESTIGATE COMMUNIST OR
SUBVERSIVE ACTIVITIES. 

FN6  SEE NAACP V. ALABAMA, 357 U.S. 449, 460-466; UNITED STATES V.
RUMELY, 345 U.S. 41.  AMONG THE QUESTIONS ASKED WERE SEVERAL DEALING
DIRECTLY WITH THE POLITICAL ACTIVITY.  QUESTION 19, FOR EXAMPLE ASKED
IF MR. WARREN D. QUENSTEDT, A CANDIDATE FOR CONGRESS HAD USED SCULL'S
POST-OFFICE BOX. 

FN7  FOUR MEMBERS OF THIS COURT ADHERE TO THE VIEW THEY EXPRESSED IN
SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 251, AND "DO NOT NOW CONCEIVE OF
ANY CIRCUMSTANCES WHEREIN A STATE INTEREST WOULD JUSTIFY INFRINGEMENT
OF RIGHTS IN THESE FIELDS." 
..END :








PLUMBERS, STEAMFITTERS, REFRIGERATION, PETROLEUM FITTERS, AND
APPRENTICES OF LOCAL 298, A.F. OF L. V. COUNTY OF DOOR 359 U.S. 354 


NO. 396.  ARGUED MARCH 26, 1959 - DECIDED MAY 4, 1959 - 4 WIS. 2D 142,
89 N.W.2D 920, REVERSED. 


A COUNTY, A GENERAL CONTRACTOR AND A PLUMBING CONTRACTOR SUED IN A
STATE COURT TO ENJOIN PICKETING BY A PLUMBERS' UNION, BECAUSE OF THE
EMPLOYMENT OF NONUNION PLUMBERS, WHICH HAD STOPPED WORK ON AN ADDITION
TO THE COUNTY COURTHOUSE, ABOUT HALF OF THE TOTAL COST OF WHICH WAS THE
COST OF MATERIALS BROUGHT FROM OUTSIDE THE STATE.  HELD:  THE
CONTROVERSY WAS EXCLUSIVELY WITHIN THE JURISDICTION OF THE NATIONAL
LABOR RELATIONS BOARD, AND THE STATE COURT HAD NO JURISDICTION.  PP.
355-359. 

(A)  SINCE ABOUT HALF THE COST OF THE ENTIRE PROJECT WAS THE COST OF
MATERIALS BROUGHT FROM OUTSIDE THE STATE, THE CONTROVERSY HAD
SUFFICIENT EFFECT ON INTERSTATE COMMERCE TO GIVE THE NATIONAL LABOR
RELATIONS BOARD JURISDICTION.  P. 356. 

(B)  THE DISPUTE INVOLVED IS THE KIND OVER WHICH THE BOARD NORMALLY
HAS EXCLUSIVE POWER.  PP. 356-357. 

(C)  THAT ONE OF THE PARTIES IS A COUNTY AND THAT POLITICAL
SUBDIVISIONS ARE EXPRESSLY EXCLUDED FROM THE DEFINITION OF "EMPLOYER"
IN THE NATIONAL LABOR RELATIONS ACT DOES NOT PREVENT THE BOARD FROM
HAVING JURISDICTION.  TEAMSTERS UNION V. NEW YORK, N.H. & H.R. CO., 350
U.S. 155.  PP. 357-359. 

PLUMBERS, STEAMFITTERS, REFRIGERATION, PETROLEUM FITTERS, AND
APPRENTICES OF LOCAL 298, A.F. OF L., ET AL. V. COUNTY OF DOOR ET AL. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
DOUGLAS. 

RESPONDENT, COUNTY OF DOOR, WISCONSIN, IS A MUNICIPAL CORPORATION;
PETITIONERS ARE A PLUMBERS' UNION LOCAL AND A COUNCIL OF TRADE UNIONS. 
THE COUNTY HIRED RESPONDENT OUDENHOVEN TO DO THE GENERAL CONTRACTING
WORK ON AN ADDITION TO THE DOOR COUNTY COURTHOUSE.  AT THE SAME TIME
SOME EIGHT CONTRACTS COVERING SPECIFIC ITEMS OF CONSTRUCTION WERE
ENTERED INTO BY THE COUNTY WITH VARIOUS OTHER FIRMS.  AMONG THE
CONTRACTORS WAS RESPONDENT ZAHN WHO HAD SUCCESSFULLY BID FOR THE
PLUMBING WORK IN THE PROJECT.  UNLIKE THE OTHER SUCCESSFUL BIDDERS,
HOWEVER, ZAHN EMPLOYED NONUNION LABOR.  THIS DISTURBED THE PLUMBERS'
UNION WHICH ATTEMPTED TO INDUCE HIM TO SIGN A UNION AGREEMENT.  AFTER
ZAHN REFUSED, A PICKET WAS ASSIGNED TO WALK AROUND THE COURTHOUSE
CARRYING A PLACARD WHICH STATED THAT NONUNION WORKERS WERE EMPLOYED ON
THE PROJECT.  THE PICKETING, THOUGH PEACEFUL, EFFECTIVELY STOPPED ALL
THE WORK SINCE UNION MEMBERS EMPLOYED BY OTHER CONTRACTORS REFUSED TO
CROSS THE PICKET LINE. 

TO END THE INTERRUPTION RESPONDENTS DOOR COUNTY, ZAHN, AND OUDENHOVEN
SOUGHT AN INJUNCTION IN THE LOCAL CIRCUIT COURT.  PETITIONERS DEFENDED
BY CLAIMING, AMONG OTHER THINGS, THAT UNDER THE NATIONAL LABOR
RELATIONS ACT (FN1) THE STATE COURTS HAD NO JURISDICTION AND THAT THE
CONTROVERSY WAS EXCLUSIVELY SUBJECT TO NATIONAL LABOR RELATIONS BOARD
CONTROL.  THE TRIAL COURT, BELIEVING THAT INTERSTATE COMMERCE WAS NOT
AFFECTED BY THE DISPUTE, DENIED THAT THE BOARD HAD JURISDICTION AND
HELD THAT STATE POWER EXISTED.  IT FOUND THAT STATE LAW HAD BEEN
VIOLATED BY THE PICKETING AND ISSUED AN INJUNCTION.  ON APPEAL THE
WISCONSIN SUPREME COURT AFFIRMED.  4 WIS. 2D 142, 89 N.W.2D 920.  IT
APPARENTLY DISAGREED WITH THE BASIS OF THE LOWER COURT'S HOLDING AND
ASSUMED THAT THE DISPUTE DID AFFECT INTERSTATE COMMERCE, BUT HELD THAT
THE N.L.R.B. HAD NO JURISDICTION BECAUSE DOOR COUNTY, A GOVERNMENTAL
SUBDIVISION, WAS AMONG THOSE SEEKING RELIEF.  SINCE THE N.L.R.B. HAD NO
POWER, THE COURT RULED, STATE LAWS WERE NOT PRE-EMPTED AND THE
INJUNCTION COULD STAND.  UNDER SIMILAR CIRCUMSTANCES BOTH THE NATIONAL
LABOR RELATIONS BOARD AND THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT HAVE CONCLUDED THAT THE N.L.R.B. HAS JURISDICTION.  (FN2)
WE GRANTED CERTIORARI TO RESOLVE THIS CONFLICT.  358 U.S. 878. 

THERE CAN BE NO DOUBT THAT WERE DOOR COUNTY NOT A PARTY TO THE
LITIGATION STATE COURTS WOULD HAVE NO POWER OVER THE DISPUTE.  THE
STIPULATED FACTS SHOW THAT THE TOTAL COST OF THE PROJECT WAS ABOUT
$450,000.  ROUGHLY HALF OF THIS WAS THE COST OF MATERIALS BROUGHT FROM
OUTSIDE WISCONSIN.  ON SIMILAR FACTS THIS COURT HAS OFTEN FOUND A
SUFFICIENT EFFECT ON COMMERCE TO GIVE THE N.L.R.B. JURISDICTION.  SEE,
E.G., LABOR BOARD V. DENVER BLDG. & CONSTR.  TRADES COUNCIL, 341 U.S.
675, 683-684.  WE SEE NO REASON TO DEVIATE FROM THOSE HOLDINGS.  IT IS
ALSO ADMITTED THAT THE DISPUTE HERE INVOLVED IS THE KIND OVER WHICH THE
LABOR BOARD NORMALLY HAS EXCLUSIVE POWER.  RESPONDENTS ALLEGE AN
ATTEMPT TO FORCE ZAHN AND THE COUNTY TO STOP DOING BUSINESS WITH EACH
OTHER OR, ALTERNATIVELY, TO COERCE ZAHN INTO MAKING HIS EMPLOYEES
ORGANIZE A UNION SHOP.  BOTH OF THESE ALLEGATIONS, IF PROVED, WOULD
CONSTITUTE UNFAIR LABOR PRACTICES UNDER SEC. 8(B)(4) OF THE NATIONAL
LABOR RELATIONS ACT.  (FN3)  IF THE CHARGES ARE NOT PROVED THE CONDUCT
MIGHT WELL BE "PROTECTED" UNDER SEC. 7 OF THE LABOR ACT.  (FN4)  IN
EITHER CASE THIS COURT HAS HELD THAT THE DETERMINATION MUST BE MADE BY
THE N.L.R.B. AND THAT "STATE COURTS MUST DECLINE JURISDICTION IN
DEFERENCE TO THE TRIBUNAL WHICH CONGRESS HAS SELECTED.  ..."  (FN5) 

IT IS CLAIMED, HOWEVER, THAT THE PRESENCE OF DOOR COUNTY SOMEHOW
DEPRIVES THE BOARD OF JURISDICTION AND RE-ESTABLISHES STATE POWER. 
THIS CONTENTION IS BASED ON THE FACT THAT POLITICAL SUBDIVISIONS ARE
EXPRESSLY EXCLUDED FROM THE DEFINITION OF "EMPLOYER" IN THE LABOR
RELATIONS ACT AND THEREFORE ARE NOT SUBJECT TO MANY OF ITS PROVISIONS. 
(FN6)  TO ALLOW THE COUNTY TO FILE A COMPLAINT AGAINST THE UNION WOULD,
IT HAS BEEN ARGUED, GIVE THE COUNTY THE ADVANTAGES OF THE LABOR
RELATIONS ACT WITHOUT SUBJECTING IT TO THE CORRELATIVE RESPONSIBILITIES
THE STATUTE IMPOSES. 

IN LOCAL 25, INT'L BRO. OF TEAMSTERS V. NEW YORK, N.H.&H.R. CO., 350
U.S. 155, WE DECIDED THAT A RAILROAD COULD SEEK RELIEF BEFORE THE BOARD
ALTHOUGH RAILROADS, LIKE POLITICAL SUBDIVISIONS, ARE EXPRESSLY EXCLUDED
FROM THE TERM "EMPLOYER" IN THE ACT.  (FN7)  OUR OPINION POINTED OUT
THAT "THE N.L.R.B. IS EMPOWERED TO ISSUE COMPLAINTS WHENEVER 'IT IS
CHARGED' THAT ANY PERSON SUBJECT TO THE ACT IS ENGAGED IN ANY
PROSCRIBED UNFAIR LABOR PRACTICE," AND THAT BOARD REGULATIONS ALLOW
SUCH A CHARGE TO BE FILED BY "ANY PERSON" AS DEFINED IN THE ACT, 350
U.S., AT 160.  (FN8)  "SINCE RAILROADS ARE NOT EXCLUDED FROM THE ACT'S
DEFINITION OF 'PERSON'  ...  "  (FN9) WE HELD THAT "THEY ARE ENTITLED
TO BOARD PROTECTION FROM THE KIND OF UNFAIR LABOR PRACTICE PROSCRIBED
BY SEC. 8(B)(4)(A)," REASONING THAT THIS RESULT WOULD BEST EFFECTUATE
CONGRESSIONAL POLICIES OF UNIFORM CONTROL OVER LABOR ABUSES AND
PROTECTION OF THE PARTIES INJURED BY SUCH PRACTICES.  IBID. 

THE POSITION OF A COUNTY AND A RAILROAD WOULD SEEM TO BE IDENTICAL
UNDER THE ACT, AND THE POLICY CONSIDERATIONS WHICH GUIDED US IN LOCAL
25, LIKE THE STATUTORY LANGUAGE THERE CONSTRUED, WOULD SEEM TO APPLY
EQUALLY HERE.  (FN10)  RESPONDENTS ATTEMPT TO DISTINGUISH THE CASE BY
CLAIMING THAT A POLITICAL SUBDIVISION MUST BE EXPRESSLY INCLUDED IN A
STATUTE IF IT IS TO BE CONSIDERED WITHIN THE LAW'S COVERAGE AND THAT
ESSENTIAL STATE FUNCTIONS WILL BE IMPAIRED IF THE COUNTY IS SUBJECTED
TO N.L.R.B. COVERAGE.  BUT THIS COURT HAS MANY TIMES HELD THAT
GOVERNMENT BODIES NOT EXPRESSLY INCLUDED IN A FEDERAL STATUTE MAY,
NEVERTHELESS, BE SUBJECT TO THE LAW.  (FN11)  AND BOARD JURISDICTION TO
GRANT RELIEF, FAR FROM INTERFERING WITH COUNTY FUNCTIONS, SERVES TO
SAFEGUARD THE INTERESTS OF SUCH POLITICAL SUBDIVISIONS.  ACCORDINGLY,
WE FIND NEITHER OF RESPONDENTS' CONTENTIONS CONVINCING. 

WE DO NOT, OF COURSE, ATTEMPT TO DECIDE WHETHER THE UNION'S CONDUCT
IN THIS DISPUTE VIOLATES SEC. 8(B)(4), IS PROTECTED BY SEC. 7, OR IS
COVERED BY NEITHER PROVISION OF THE LABOR ACT.  THOSE ARE QUESTIONS FOR
THE BOARD TO DETERMINE IN A PROPER PROCEEDING BROUGHT BEFORE IT.  SEE,
E.G., WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, 481.  WE MERELY HOLD
THAT THE BOARD HAS JURISDICTION IN THIS CASE AND THAT, THEREFORE, IT
WAS ERROR FOR THE WISCONSIN COURTS TO EXERCISE JURISDICTION. 

THE JUDGMENT OF THE SUPREME COURT OF WISCONSIN IS REVERSED AND THE
CAUSE IS REMANDED TO THAT COURT FOR ACTION NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  61 STAT. 136, AS AMENDED, 29 U.S.C. SECS. 151-168. 

FN2  LABOR BOARD V. LOCAL 313, INT'L BRO. OF ELECT.  WORKERS, 254
F.2D 221, AFFIRMING PETER D. FURNESS, 117 N.L.R.B. 437.  SEE ALSO NEW
MEXICO BLDG. BRANCH, ASSOC. GEN.  CONTRACTORS, CCH 1957-1958 LABOR L.
REP. (4TH ED.)  PARA.  55,304; FREEMAN CONSTR.  CO., CCH 1957-1958
LABOR L. REP. (4TH ED.)  PARA.  55,353. 

FN3  SECTION 8(B)(4) PROVIDES IN PART:  "IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS  ...  TO ENGAGE IN, OR
TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY EMPLOYER TO ENGAGE IN  ...
A STRIKE  ...  WHERE AN OBJECT THEREOF IS:  (A) FORCING OR REQUIRING
...  ANY EMPLOYER OR OTHER PERSON TO CEASE USING, SELLING, HANDLING,
TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY OTHER
PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING BUSINESS WITH
ANY OTHER PERSON; (B) FORCING OR REQUIRING ANY OTHER EMPLOYER TO
RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE REPRESENTATIVE OF
HIS EMPLOYEES UNLESS SUCH LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE
REPRESENTATIVE OF SUCH EMPLOYEES  ...  ."  61 STAT. 141, 29 U.S.C. SEC.
158(B)(4). 

FN4  SECTION 7 READS:  "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  ...  ."  61 STAT. 140, 29
U.S.C. SEC. 157. 

FN5  WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, 481.  THERE IS IN
THIS CASE NO QUESTION OF VIOLENCE OR OF THE POWER OF STATE COURTS TO
AWARD DAMAGES.  SEE GENERALLY, SAN DIEGO BLDG. TRADES COUNCIL V.
GARMON, ANTE, P. 236. 

FN6  "THE TERM 'EMPLOYER'  ...  SHALL NOT INCLUDE THE UNITED STATES
OR ANY WHOLLY OWNED GOVERNMENT CORPORATION, OR ANY FEDERAL RESERVE
BANK, OR ANY STATE OR POLITICAL SUBDIVISION THEREOF  ...  ."  61 STAT.
137, 29 U.S.C. SEC. 152(2). 

FN7  "THE TERM 'EMPLOYER' ...  SHALL NOT INCLUDE  ...  ANY PERSON
SUBJECT TO THE RAILWAY LABOR ACT  ...  ."  61 STAT. 137, 29 U.S.C. SEC.
152(2).  SEE 44 STAT. 577, AS AMENDED, 45 U.S.C. SEC. 151. 

FN8  29 CFR, 1958 CUM. SUPP., SEC. 102.9, STATES "A CHARGE THAT ANY
PERSON HAS ENGAGED IN OR IS ENGAGING IN ANY UNFAIR LABOR PRACTICE
AFFECTING COMMERCE MAY BE MADE BY ANY PERSON  ...  ."  THE DEFINITION
OF "PERSON" IN THE REGULATIONS IS THE SAME AS THAT IN THE ACT ITSELF. 
29 CFR, 1958 CUM. SUPP., SEC. 102.1. 

FN9  AS DEFINED IN THE ACT, "THE TERM 'PERSON' INCLUDES ONE OR MORE
INDIVIDUALS, LABOR ORGANIZATIONS, PARTNERSHIPS, ASSOCIATIONS,
CORPORATIONS, LEGAL REPRESENTATIVES, TRUSTEES, TRUSTEES IN BANKRUPTCY,
OR RECEIVERS."  61 STAT. 137, 29 U.S.C. SEC. 152(1). 

FN10  SIGNIFICANTLY, BEFORE THIS COURT'S DECISION IN LOCAL 25, INT'L
BRO. OF TEAMSTERS V. NEW YORK, N.H. & H.R. CO., 350 U.S. 155, THE
N.L.R.B. AGREED WITH RESPONDENTS THAT POLITICAL SUBDIVISIONS WERE NOT
"PERSONS" UNDER THE LABOR ACT, BUT SHORTLY AFTER LOCAL 25 THE BOARD
REVERSED ITSELF SINCE IT FELT THE BASIS OF ITS PRIOR RULINGS HAD BEEN
COMPLETELY UNDERCUT BY LOCAL 25.  COMPARE AL J. SCHNEIDER CO., 87
N.L.R.B. 99; 89 N.L.R.B. 221; VICTOR M. SPRYS, 104 N.L.R.B. 1128, WITH
PETER D. FURNESS, 117 N.L.R.B. 437; NEW MEXICO BLDG. BRANCH, ASSOC.
GEN. CONTRACTORS, CCH 1957-1958 LABOR L. REP. (4TH ED.)  PARA. 
55,304. 

FN11  SEE, E.G., OHIO V. HELVERING, 292 U.S. 360, 370-371 (A STATE IS
A "PERSON" WITHIN THE MEANING OF A FEDERAL LAW TAXING PERSONS ENGAGED
IN THE SALE OF LIQUOR); UNITED STATES V. CALIFORNIA, 297 U.S. 175, 186
(A FEDERAL STATUTE REGULATING COMMON CARRIERS BY RAIL APPLIES TO A
STATE); GEORGIA V. EVANS, 316 U.S. 159 (A STATE IS A "PERSON" WITHIN
THE MEANING OF THE SHERMAN ACT, AND MAY SEEK RELIEF UNDER THAT
STATUTE). 
..END :












FRANK V. MARYLAND 359 U.S. 360 


NO. 278.  ARGUED MARCH 5, 1959 - DECIDED MAY 4, 1959 - AFFIRMED. 


A BALTIMORE CITY HEALTH INSPECTOR SEEKING THE SOURCE OF A RAT
INFESTATION DISCOVERED EVIDENCE OF SUCH AN INFESTATION IN THE REAR OF
APPELLANT'S HOME, AND, HAVING NO SEARCH WARRANT, REQUESTED APPELLANT'S
PERMISSION TO INSPECT HIS BASEMENT IN THE DAY TIME.   FOR REFUSING SUCH
PERMISSION, APPELLANT WAS CONVICTED AND FINED FOR A VIOLATION OF SEC.
120 OF ART. 12 OF THE BALTIMORE CITY CODE, WHICH PROVIDES THAT,
"WHENEVER THE COMMISSIONER OF HEALTH SHALL HAVE CAUSE TO SUSPECT THAT A
NUISANCE EXISTS IN ANY HOUSE, CELLAR OR ENCLOSURE, HE MAY DEMAND ENTRY
THEREIN IN THE DAY TIME, AND IF THE OWNER OR OCCUPIER SHALL REFUSE OR
DELAY TO OPEN THE SAME AND ADMIT A FREE EXAMINATION, HE SHALL FORFEIT
AND PAY FOR EVERY SUCH REFUSAL THE SUM OF TWENTY DOLLARS."  HELD:
INSPECTION OF HIS HOUSE WITHOUT A WARRANT DID NOT VIOLATE THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 361-373. 

FRANK V. MARYLAND. 

APPEAL FROM THE CRIMINAL COURT OF BALTIMORE, MARYLAND. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ACTING ON A COMPLAINT FROM A RESIDENT OF THE 4300 BLOCK OF
REISTERSTOWN ROAD, BALTIMORE, MARYLAND, THAT THERE WERE RATS IN HER
BASEMENT, GENTRY, AN INSPECTOR OF THE BALTIMORE CITY HEALTH DEPARTMENT,
BEGAN AN INSPECTION OF THE HOUSES IN THE VICINITY LOOKING FOR THE
SOURCE OF THE RATS.  IN THE MIDDLE OF THE AFTERNOON OF FEBRUARY 27,
1958, GENTRY KNOCKED ON THE DOOR OF APPELLANT'S DETACHED FRAME HOME AT
4335 REISTERSTOWN ROAD.  AFTER RECEIVING NO RESPONSE HE PROCEEDED TO
INSPECT THE AREA OUTSIDE THE HOUSE.  THIS INSPECTION REVEALED THAT THE
HOUSE WAS IN AN "EXTREME STATE OF DECAY," AND THAT IN THE REAR OF THE
HOUSE THERE WAS A PILE LATER IDENTIFIED AS "RODENT FECES MIXED WITH
STRAW AND TRASH AND DEBRIS TO APPROXIMATELY HALF A TON."  DURING THIS
INSPECTION APPELLANT CAME AROUND THE SIDE OF THE HOUSE AND ASKED GENTRY
TO EXPLAIN HIS PRESENCE.  GENTRY RESPONDED THAT HE HAD EVIDENCE OF
RODENT INFESTATION AND ASKED APPELLANT FOR PERMISSION TO INSPECT THE
BASEMENT AREA.  APPELLANT REFUSED.  AT NO TIME DID GENTRY HAVE A
WARRANT AUTHORIZING HIM TO ENTER.  THE NEXT FORENOON GENTRY, IN THE
COMPANY OF TWO POLICE OFFICERS, RETURNED TO APPELLANT'S HOUSE.  AFTER
RECEIVING NO RESPONSE TO HIS KNOCK, HE REINSPECTED THE EXTERIOR OF THE
PREMISES.  HE THEN SWORE OUT A WARRANT FOR APPELLANT'S ARREST ALLEGING
A VIOLATION OF SEC. 120 OF ART. 12 OF THE BALTIMORE CITY CODE.  THAT

"WHENEVER THE COMMISSIONER OF HEALTH SHALL HAVE CAUSE TO SUSPECT THAT
A NUISANCE EXISTS IN ANY HOUSE, CELLAR OR ENCLOSURE, HE MAY DEMAND
ENTRY THEREIN IN THE DAY TIME, AND IF THE OWNER OR OCCUPIER SHALL
REFUSE OR DELAY TO OPEN THE SAME AND ADMIT A FREE EXAMINATION, HE SHALL
FORFEIT AND PAY FOR EVERY SUCH REFUSAL THE SUM OF TWENTY DOLLARS." 

APPELLANT WAS ARRESTED ON MARCH 5, AND THE NEXT DAY WAS FOUND GUILTY
OF THE OFFENSE ALLEGED IN THE WARRANT BY A POLICE JUSTICE FOR THE
NORTHERN DISTRICT OF BALTIMORE AND FINED TWENTY DOLLARS.  ON APPEAL,
THE CRIMINAL COURT OF BALTIMORE, IN A DE NOVO PROCEEDING, ALSO FOUND
APPELLANT GUILTY.  THE MARYLAND COURT OF APPEALS DENIED CERTIORARI. 
THE CASE CAME HERE UNDER A CHALLENGE, 28 U.S.C. SEC. 1257(2), TO THE
VALIDITY OF SEC. 120 TO DETERMINE WHETHER APPELLANT'S CONVICTION FOR
RESISTING AN INSPECTION OF HIS HOUSE WITHOUT A WARRANT WAS OBTAINED IN
VIOLATION OF THE FOURTEENTH AMENDMENT. 

THE HEALTH CODE OF THE CITY OF BALTIMORE, OF WHICH SEC. 120 IS AN
IMPORTANT PART, DEALS WITH MANY OF THE MULTIFORM ASPECTS OF HYGIENE IN
MODERN URBAN AREAS.  A VITAL PORTION CONCERNS THE HYGIENE OF HOUSING. 
TYPICAL OF THE CONTENT AND METHOD OF ENFORCING ITS PROVISIONS IS THE
KEPT CLEAN AND FREE FROM ANY ACCUMULATION OF DIRT, FILTH, RUBBISH,
GARBAGE OR SIMILAR MATTER, AND SHALL BE KEPT FREE FROM VERMIN OR RODENT
INFESTATION."  BALTIMORE CITY CODE, ART. 12, SEC. 112.  IF THE OCCUPANT
OF A BUILDING FAILS TO MEET THIS STANDARD, HE IS NOTIFIED BY THE
COMMISSIONER OF HEALTH TO ABATE THE SUBSTANDARD CONDITIONS.  (FN1)
FAILURE TO REMOVE THESE HAZARDS TO COMMUNITY HEALTH GIVES RISE TO
CRIMINAL PROSECUTION.  IBID.  THE ATTEMPTED INSPECTION OF APPELLANT'S
HOME WAS MERELY TO ASCERTAIN THE EXISTENCE OF EVILS TO BE CORRECTED
UPON DUE NOTIFICATION OR, IN DEFAULT OF SUCH CORRECTION, TO BE MADE THE
BASIS OF PUNISHMENT. 

WE HAVE SAID THAT "THE SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY
INTRUSION BY THE POLICE" IS FUNDAMENTAL TO A FREE SOCIETY AND AS SUCH
PROTECTED BY THE FOURTEENTH AMENDMENT.  WOLF V. COLORADO, 338 U.S. 25,
27.  APPLICATION OF THE BROAD RESTRAINTS OF DUE PROCESS COMPELS INQUIRY
INTO THE NATURE OF THE DEMAND BEING MADE UPON INDIVIDUAL FREEDOM IN A
PARTICULAR CONTEXT AND THE JUSTIFICATION OF SOCIAL NEED ON WHICH THE
DEMAND RESTS. 

THE HISTORY OF THE CONSTITUTIONAL PROTECTION AGAINST OFFICIAL
INVASION OF THE CITIZEN'S HOME MAKES EXPLICIT THE HUMAN CONCERNS WHICH
IT WAS MEANT TO RESPECT.  IN YEARS PRIOR TO THE REVOLUTION LEADING
VOICES IN ENGLAND AND THE COLONIES PROTESTED AGAINST THE RANSACKING BY
CROWN OFFICERS OF THE HOMES OF CITIZENS IN SEARCH OF EVIDENCE OF CRIME
OR OF ILLEGALLY IMPORTED GOODS.  THE VIVID MEMORY BY THE NEWLY
INDEPENDENT AMERICANS OF THESE ABUSES PRODUCED THE FOURTH AMENDMENT AS
A SAFEGUARD AGAINST SUCH ARBITRARY OFFICIAL ACTION BY OFFICERS OF THE
NEW UNION, AS LIKE PROVISIONS HAD ALREADY FOUND THEIR WAY INTO STATE
CONSTITUTIONS. 

IN 1765, IN ENGLAND, WHAT IS PROPERLY CALLED THE GREAT CASE OF ENTICK
V. CARRINGTON, 19 HOWELL'S STATE TRIALS, COL. 1029, ANNOUNCED THE
PRINCIPLE OF ENGLISH LAW WHICH BECAME PART OF THE BILL OF RIGHTS AND
WHOSE BASIC PROTECTION HAS BECOME IMBEDDED IN THE CONCEPT OF DUE
PROCESS OF LAW.  IT WAS THERE DECIDED THAT ENGLISH LAW DID NOT ALLOW
OFFICERS OF THE CROWN TO BREAK INTO A CITIZEN'S HOME, UNDER COVER OF A
GENERAL EXECUTIVE WARRANT, TO SEARCH FOR EVIDENCE OF THE UTTERANCE OF
LIBEL.  AMONG THE REASONS GIVEN FOR THAT DECISION WERE THESE: 

"IT IS VERY CERTAIN, THAT THE LAW OBLIGETH NO MAN TO ACCUSE HIMSELF;
BECAUSE THE NECESSARY MEANS OF COMPELLING SELF-ACCUSATION, FALLING UPON
THE INNOCENT AS WELL AS THE GUILTY, WOULD BE BOTH CRUEL AND UNJUST; AND
IT SHOULD SEEM, THAT SEARCH FOR EVIDENCE IS DISALLOWED UPON THE SAME
PRINCIPLE.  THERE TOO THE INNOCENT WOULD BE CONFOUNDED WITH THE
GUILTY."  ID., AT COL.  1073. 

THESE WERE NOT NOVEL PRONOUNCEMENTS TO THE COLONISTS.  A FEW YEARS
EARLIER, IN BOSTON, REVENUE OFFICERS HAD BEEN AUTHORIZED TO USE WRITS
OF ASSISTANCE, EMPOWERING THEM TO SEARCH SUSPECTED PLACES, INCLUDING
PRIVATE HOUSES, FOR SMUGGLED GOODS.  IN 1761 THE VALIDITY OF THE USE OF
THE WRITS WAS CONTESTED IN THE HISTORIC PROCEEDINGS IN BOSTON.  JAMES
OTIS ATTACKED THE WRIT OF ASSISTANCE BECAUSE ITS USE PLACED "THE
LIBERTY OF EVERY MAN IN THE HANDS OF EVERY PETTY OFFICER."  (FN2)  HIS
POWERFUL ARGUMENT SO IMPRESSED ITSELF FIRST ON HIS AUDIENCE AND LATER
ON THE PEOPLE OF ALL THE COLONIES THAT PRESIDENT ADAMS WAS IN
RETROSPECT MOVED TO SAY THAT "AMERICAN INDEPENDENCE WAS THEN AND THERE
BORN."   (FN3)  MANY YEARS LATER THIS COURT, IN BOYD V. UNITED STATES,
116 U.S. 616, CAREFULLY REVIEWED THIS HISTORY AND POINTED OUT, AS DID
LORD CAMDEN IN ENTICK V. CARRINGTON, THAT: 

"  ...  THE 'UNREASONABLE SEARCHES AND SEIZURES' CONDEMNED IN THE
FOURTH AMENDMENT ARE ALMOST ALWAYS MADE FOR THE PURPOSE OF COMPELLING A
MAN TO GIVE EVIDENCE AGAINST HIMSELF, WHICH IN CRIMINAL CASES IS
CONDEMNED IN THE FIFTH AMENDMENT; AND COMPELLING A MAN 'IN A CRIMINAL
CASE TO BE A WITNESS AGAINST HIMSELF,' WHICH IS CONDEMNED IN THE FIFTH
AMENDMENT, THROWS LIGHT ON THE QUESTION AS TO WHAT IS AN 'UNREASONABLE
SEARCH AND SEIZURE' WITHIN THE MEANING OF THE FOURTH AMENDMENT."  116
U.S., AT 633. 

AGAINST THIS BACKGROUND TWO PROTECTIONS EMERGE FROM THE BROAD
CONSTITUTIONAL PROSCRIPTION OF OFFICIAL INVASION.  THE FIRST OF THESE
IS THE RIGHT TO BE SECURE FROM INTRUSION INTO PERSONAL PRIVACY, THE
RIGHT TO SHUT THE DOOR ON OFFICIALS OF THE STATE UNLESS THEIR ENTRY IS
UNDER PROPER AUTHORITY OF LAW.  THE SECOND, AND INTIMATELY RELATED
PROTECTION, IS SELF-PROTECTION:  THE RIGHT TO RESIST UNAUTHORIZED ENTRY
WHICH HAS AS ITS DESIGN THE SECURING OF INFORMATION TO FORTIFY THE
COERCIVE POWER OF THE STATE AGAINST THE INDIVIDUAL, INFORMATION WHICH
MAY BE USED TO EFFECT A FURTHER DEPRIVATION OF LIFE OR LIBERTY OR
PROPERTY.  THUS, EVIDENCE OF CRIMINAL ACTION MAY NOT, SAVE IN VERY
LIMITED AND CLOSELY CONFINED SITUATIONS, BE SEIZED WITHOUT A JUDICIALLY
ISSUED SEARCH WARRANT.  IT IS THIS ASPECT OF THE CONSTITUTIONAL
PROTECTION TO WHICH THE QUOTED PASSAGES FROM ENTICK V. CARRINGTON AND
BOYD V. UNITED STATES REFER.  CERTAINLY IT IS NOT NECESSARY TO ACCEPT
ANY PARTICULAR THEORY OF THE INTERRELATIONSHIP OF THE FOURTH AND FIFTH
AMENDMENTS (FN4) TO REALIZE WHAT HISTORY MAKES PLAIN, THAT IT WAS ON
THE ISSUE OF THE RIGHT TO BE SECURE FROM SEARCHES FOR EVIDENCE TO BE
USED IN CRIMINAL PROSECUTIONS OR FOR FORFEITURES THAT THE GREAT BATTLE
FOR FUNDAMENTAL LIBERTY WAS FOUGHT.  WHILE THESE CONCERNS FOR
INDIVIDUAL RIGHTS WERE THE HISTORIC IMPULSES BEHIND THE FOURTH
AMENDMENT AND ITS ANALOGUES IN STATE CONSTITUTIONS, THE APPLICATION OF
THE FOURTH AMENDMENT AND THE EXTENT TO WHICH THE ESSENTIAL RIGHT OF
PRIVACY IS PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT ARE OF COURSE NOT RESTRICTED WITHIN THESE HISTORIC BOUNDS. 

BUT GIVING THE FULLEST SCOPE TO THIS CONSTITUTIONAL RIGHT TO PRIVACY,
ITS PROTECTION CANNOT BE HERE INVOKED.  THE ATTEMPTED INSPECTION OF
APPELLANT'S HOME IS MERELY TO DETERMINE WHETHER CONDITIONS EXIST WHICH
THE BALTIMORE HEALTH CODE PROSCRIBES.  IF THEY DO APPELLANT IS NOTIFIED
TO REMEDY THE INFRINGING CONDITIONS.  NO EVIDENCE FOR CRIMINAL
PROSECUTION IS SOUGHT TO BE SEIZED.  APPELLANT IS SIMPLY DIRECTED TO DO
WHAT HE COULD HAVE BEEN ORDERED TO DO WITHOUT ANY INSPECTION, AND WHAT
HE CANNOT PROPERLY RESIST, NAMELY, ACT IN A MANNER CONSISTENT WITH THE
MAINTENANCE OF MINIMUM COMMUNITY STANDARDS OF HEALTH AND WELL-BEING,
INCLUDING HIS OWN.  APPELLANT'S RESISTANCE CAN ONLY BE BASED, NOT ON
ADMISSIBLE SELF-PROTECTION, BUT ON A RARELY VOICED DENIAL OF ANY
OFFICIAL JUSTIFICATION FOR SEEKING TO ENTER HIS HOME.  THE
CONSTITUTIONAL "LIBERTY" THAT IS ASSERTED IS THE ABSOLUTE RIGHT TO
REFUSE CONSENT FOR AN INSPECTION DESIGNED AND PURSUED SOLELY FOR THE
PROTECTION OF THE COMMUNITY'S HEALTH, EVEN WHEN THE INSPECTION IS
CONDUCTED WITH DUE REGARD FOR EVERY CONVENIENCE OF TIME AND PLACE. 

THE POWER OF INSPECTION GRANTED BY THE BALTIMORE CITY CODE IS
STRICTLY LIMITED, MORE EXACTING THAN THE ANALOGOUS PROVISIONS OF MANY
OTHER MUNICIPAL CODES.  VALID GROUNDS FOR SUSPICION OF THE EXISTENCE OF
A NUISANCE MUST EXIST.  CERTAINLY THE PRESENCE OF A PILE OF FILTH IN
THE BACK YARD COMBINED WITH THE RUN-DOWN CONDITION OF THE HOUSE GAVE
ADEQUATE GROUNDS FOR SUCH SUSPICION.  THE INSPECTION MUST BE MADE IN
THE DAY TIME.  HERE WAS NO MIDNIGHT KNOCK ON THE DOOR, BUT AN ORDERLY
VISIT IN THE MIDDLE OF THE AFTERNOON WITH NO SUGGESTION THAT THE HOUR
WAS INCONVENIENT.  MOREOVER, THE INSPECTOR HAS NO POWER TO FORCE ENTRY
AND DID NOT ATTEMPT IT.  A FINE IS IMPOSED FOR RESISTANCE, BUT
OFFICIALS ARE NOT AUTHORIZED TO BREAK PAST THE UNWILLING OCCUPANT. 

THUS, NOT ONLY DOES THE INSPECTION TOUCH AT MOST UPON THE PERIPHERY
OF THE IMPORTANT INTERESTS SAFEGUARDED BY THE FOURTEENTH AMENDMENT'S
PROTECTION AGAINST OFFICIAL INTRUSION, BUT IT IS HEDGED ABOUT WITH
SAFEGUARDS DESIGNED TO MAKE THE LEAST POSSIBLE DEMAND ON THE INDIVIDUAL
OCCUPANT, AND TO CAUSE ONLY THE SLIGHTEST RESTRICTION ON HIS CLAIMS OF
PRIVACY.  SUCH A DEMAND MUST BE ASSESSED IN THE LIGHT OF THE NEEDS
WHICH HAVE PRODUCED IT. 

INSPECTION WITHOUT A WARRANT, AS AN ADJUNCT TO A REGULATORY SCHEME
FOR THE GENERAL WELFARE OF THE COMMUNITY AND NOT AS A MEANS OF
ENFORCING THE CRIMINAL LAW, HAS ANTECEDENTS DEEP IN OUR HISTORY.  FOR
MORE THAN 200 YEARS MARYLAND HAS EMPOWERED ITS OFFICERS TO ENTER UPON
SHIPS, CARRIAGES, SHOPS, AND HOMES IN THE SERVICE OF THE COMMON
WELFARE.  IN PRE-REVOLUTIONARY DAYS TRADE, ON WHICH THE VIABILITY OF
THE STRUGGLING COLONIES DEPENDED, WAS OF PRIMARY CONCERN.  THUS, AT A
TIME WHEN THE TOBACCO TRADE WAS A VITAL PART OF MARYLAND'S ECONOMY,
INSPECTIONS OF SHIPS AND CARRIAGES WITHOUT A WARRANT COULD BE MADE TO
ENFORCE UNIFORM STANDARDS FOR PACKING AND SHIPPING TOBACCO.  (FN5)
SIMILARLY, SUSPECTED EVASION OF IMPORT DUTIES ON LIQUOR AND OTHER GOODS
COULD BE FOUND OUT BY INSPECTION OF STORES AND HOMES.  (FN6)  GENERALLY
THE POWER OF ENTRY WAS CAREFULLY LIMITED, REQUIRING THAT GROUND FOR
SUSPICION MUST EXIST AND THAT THE INSPECTION BE CONDUCTED BETWEEN "THE
RISING AND THE SETTING OF THE SUN."  (FN7) 

IN 1776 THE NEWLY INDEPENDENT STATE OF MARYLAND INCORPORATED, AS PART
OF ITS BASIC DECLARATION OF RIGHTS, THE PRINCIPLE: 

"THAT ALL WARRANTS, WITHOUT OATH OR AFFIRMATION, TO SEARCH SUSPECTED
PLACES, OR TO SEIZE ANY PERSON OR PROPERTY, ARE GRIEVOUS AND
OPPRESSIVE; AND ALL GENERAL WARRANTS - TO SEARCH SUSPECTED PLACES, OR
TO APPREHEND SUSPECTED PERSONS, WITHOUT NAMING OR DESCRIBING THE PLACE,
OR THE PERSON IN SPECIAL - ARE ILLEGAL, AND OUGHT NOT TO BE GRANTED." 
SEE 3 THORPE, FEDERAL AND STATE CONSTITUTIONS (1909), 1688. 

THIS PROVISION WAS A PRODUCT OF THE SAME HISTORY OF ABUSE AND PROTEST
THAT GAVE BIRTH TO THE FOURTH AMENDMENT.  (FN8)  IT REMAINS TODAY AS AN
ESSENTIAL PART OF MARYLAND'S CONSTITUTION.  YET, THE YEARS FOLLOWING
ITS PROCLAMATION SAW NOT A DECLINE BUT A MARKED INCREASE IN STATUTORY
AUTHORIZATION FOR INSPECTION OF THE CITIZEN'S HOME.  NOT ONLY WERE THE
OLD REGULATIONS CONTINUED, BUT THE POWER OF INSPECTION WAS EXTENDED TO
NEW COMMUNITY CONCERNS.  IN 1782, COMMISSIONERS WERE EMPOWERED TO
"ENTER UPON THE LOTS, GROUNDS, AND POSSESSIONS, OF ANY PERSON OR
PERSONS  ...  " IN ORDER TO REGULATE AND KEEP IN REPAIR THE COMMON
SEWERAGE SYSTEMS.  (FN9)  FIVE YEARS LATER SIMILAR ENTRIES ON PRIVATE
PROPERTY WERE ALLOWED FOR THE PURPOSE OF KEEPING THE PUBLIC ROADS IN
REPAIR.  (FN10)  TYPICAL OF THE REGULATORY STATUTES ENACTED IN THIS
PERIOD WAS AN ACT PERMITTING THE CLERK OF THE MARKET "TO EXAMINE AND
WEIGH ALL SUCH BREAD, AND TO SEIZE, FOR THE USE OF THE POOR OF THE
COUNTY, ALL SUCH AS THEY SHALL FIND DEFICIENT IN WEIGHT OR FINENESS,
AND NOT BAKED OR MARKED AS AFORESAID  ...  ."  (FN11)  THE PENALTY FOR
RESISTING THE ENTRY OF THE CLERK WAS "FIVE POUNDS CURRENT MONEY."  AND
SO, WHEN, IN 1801, THE POWER OF INSPECTION WITHOUT A WARRANT BECAME AN
INSTRUMENT OF THE ENFORCEMENT OF THE BALTIMORE HEALTH LAWS, NO NOVEL OR
UNTRIED PROCEDURES WERE BEING INVOKED.  THE ORDINANCE NOW CHALLENGED
DERIVES FROM THIS 1801 ORDINANCE.  IT PROVIDED:    "AND BE IT ENACTED
AND ORDAINED, THAT WHEN, AND AS OFTEN AS THE SAID COMMISSIONERS OF
HEALTH, OR ANY OF THEM, SHALL HAVE CAUSE TO SUSPECT A NUISANCE
DANGEROUS TO THE HEALTH OF THE CITY EXISTS IN ANY HOUSE, CELLAR OR
INCLOSURE SHUT UP FROM PUBLIC VIEW, THEY, OR ANY ONE OF THEM, MAY
DEMAND ENTRY THEREIN IN THE DAY TIME FOR THE PURPOSE OF EXAMINING THE
SAME, AND IF THE OWNER OR OCCUPIER THEREOF SHALL REFUSE OR DELAY TO
OPEN THE SAME AND TO ADMIT A FREE EXAMINATION, HE SHALL FORFEIT AND PAY
FOR EVERY SUCH REFUSAL THE SUM OF TWENTY DOLLARS, FOR THE USE OF THE
CORPORATION."  (FN12) 

FROM THE PASSAGE OF THIS ORDINANCE TO THE PRESENT THE PREVENTION AND
ABATEMENT OF "NUISANCES" ON PRIVATE PROPERTY HAS BEEN ONE OF THE CHIEF
CONCERNS OF THE BALTIMORE CITY HEALTH DEPARTMENT.  (FN13)  IN THE
LATTER HALF OF THE NINETEENTH CENTURY, IN THE YEARS FOLLOWING THE
RATIFICATION OF THE FOURTEENTH AMENDMENT, THOUSANDS UPON THOUSANDS OF
INSPECTIONS WERE MADE UNDER AUTHORITY OF THIS ORDINANCE.  (FN14)  THUS
THE SYSTEM OF INSPECTION HERE UNDER ATTACK, HAVING ITS BEGINNING IN
MARYLAND'S COLONIAL HISTORY, HAS BEEN AN INTEGRAL PART OF THE
ENFORCEMENT OF BALTIMORE'S HEALTH LAWS FOR MORE THAN A CENTURY AND A
HALF.  THE LEGAL SIGNIFICANCE OF SUCH A LONG AND CONSISTENT HISTORY OF
STATE PRACTICE HAS BEEN ILLUMINATED FOR US BY MR. JUSTICE HOLMES: 

"THE FOURTEENTH AMENDMENT, ITSELF A HISTORICAL PRODUCT, DID NOT
DESTROY HISTORY FOR THE STATES AND SUBSTITUTE MECHANICAL COMPARTMENTS
OF LAW ALL EXACTLY ALIKE.  IF A THING HAS BEEN PRACTISED FOR TWO
HUNDRED YEARS BY COMMON CONSENT, IT WILL NEED A STRONG CASE FOR THE
FOURTEENTH AMENDMENT TO AFFECT IT,  ...  ."  JACKMAN V. ROSENBAUM CO.,
260 U.S. 22, 31.  (AS TO THE CONSTITUTIONAL SIGNIFICANCE OF A "TIME
HONORED PROCEDURE" SEE MURRAY'S LESSEE V. HOBOKEN LAND AND IMPROVEMENT
CO., 18 HOW.  272, AND OWNBEY V. MORGAN, 256 U.S. 94.) 

OF COURSE, THIS WISE REMINDER, THAT WHAT FREE PEOPLE HAVE FOUND
CONSISTENT WITH THEIR ENJOYMENT OF FREEDOM FOR CENTURIES IS HARDLY TO
BE DEEMED TO VIOLATE DUE PROCESS, DOES NOT FREEZE DUE PROCESS WITHIN
THE CONFINES OF HISTORICAL FACTS OR DISCREDITED ATTITUDES.  (FN15)  "IT
IS OF THE VERY NATURE OF A FREE SOCIETY TO ADVANCE IN ITS STANDARDS OF
WHAT IS DEEMED REASONABLE AND RIGHT.  REPRESENTING AS IT DOES A LIVING
PRINCIPLE, DUE PROCESS IS NOT CONFINED WITHIN A PERMANENT CATALOGUE OF
WHAT MAY AT A GIVEN TIME BE DEEMED THE LIMITS OR THE ESSENTIALS OF
FUNDAMENTAL RIGHTS."  WOLF V. COLORADO, 338 U.S. 25, 27. 

THE POWER HERE CHALLENGED RESTS NOT ONLY ON A LONG HISTORY OF ITS
EXERCISE.  IT IS A POWER WHICH WAS CONTINUALLY STRENGTHENED AND APPLIED
TO WIDER CONCERNS THROUGH THOSE VERY YEARS WHEN THE RIGHT OF
INDIVIDUALS TO BE FREE FROM PEREMPTORY OFFICIAL INVASION RECEIVED
INCREASING LEGISLATIVE AND JUDICIAL PROTECTION.  NOR IS THIS A
SITUATION WHERE A NEW BODY OF KNOWLEDGE DISPLACES PREVIOUS PREMISES OF
ACTION.  THERE IS A TOTAL WANT OF IMPORTANT MODIFICATION IN THE
CIRCUMSTANCES OR THE STRUCTURE OF SOCIETY WHICH CALLS FOR A DISREGARD
OF SO MUCH HISTORY.  ON THE CONTRARY, THE PROBLEMS WHICH GAVE RISE TO
THESE ORDINANCES HAVE MULTIPLIED MANIFOLD, AS HAVE THE DIFFICULTIES OF
ENFORCEMENT.  THE NEED TO MAINTAIN BASIC, MINIMAL STANDARDS OF HOUSING,
TO PREVENT THE SPREAD OF DISEASE AND OF THAT PERVASIVE BREAKDOWN IN THE
FIBER OF A PEOPLE WHICH IS PRODUCED BY SLUMS AND THE ABSENCE OF THE
BAREST ESSENTIALS OF CIVILIZED LIVING, HAS MOUNTED TO A MAJOR CONCERN
OF AMERICAN GOVERNMENT.  THE GROWTH OF CITIES, THE CROWDING OF
POPULATIONS, THE INCREASED AWARENESS OF THE RESPONSIBILITY OF THE STATE
FOR THE LIVING CONDITIONS OF ITS CITIZENS, ALL HAVE COMBINED TO CREATE
PROBLEMS OF THE ENFORCEMENT OF MINIMUM STANDARDS OF FAR GREATER
MAGNITUDE THAN THE WRITERS OF THESE ANCIENT INSPECTION LAWS EVER
DREAMED.  TIME AND EXPERIENCE HAVE FORCEFULLY TAUGHT THAT THE POWER TO
INSPECT DWELLING PLACES, EITHER AS A MATTER OF SYSTEMATIC AREA-BY-AREA
SEARCH OR, AS HERE, TO TREAT A SPECIFIC PROBLEM, IS OF INDISPENSABLE
IMPORTANCE TO THE MAINTENANCE OF COMMUNITY HEALTH; A POWER THAT WOULD
BE GREATLY HOBBLED BY THE BLANKET REQUIREMENT OF THE SAFEGUARDS
NECESSARY FOR A SEARCH OF EVIDENCE OF CRIMINAL ACTS.  THE NEED FOR
PREVENTIVE ACTION IS GREAT, AND CITY AFTER CITY HAS SEEN THIS NEED AND
GRANTED THE POWER OF INSPECTION TO ITS HEALTH OFFICIALS; AND THESE
INSPECTIONS ARE APPARENTLY WELCOMED BY ALL BUT AN INSIGNIFICANT FEW. 
(FN16)  CERTAINLY, THE NATURE OF OUR SOCIETY HAS NOT VITIATED THE NEED
FOR INSPECTIONS FIRST THOUGHT NECESSARY 158 YEARS AGO, NOR HAS
EXPERIENCE REVEALED ANY ABUSE OR INROAD ON FREEDOM IN MEETING THIS NEED
BY MEANS THAT HISTORY AND DOMINANT PUBLIC OPINION HAVE SANCTIONED. 

THAT THERE IS "A TOTAL UNLIKENESS" BETWEEN "OFFICIAL ACTS AND
PROCEEDINGS," BOYD V. UNITED STATES, 116 U.S. 616, 624, FOR WHICH THE
LEGAL PROTECTION OF PRIVACY REQUIRES A SEARCH WARRANT UNDER THE
FOURTEENTH AMENDMENT, AND THE SITUATION NOW UNDER CONSIDERATION IS LAID
BARE BY THE SUGGESTION THAT THE KIND OF AN INSPECTION BY A HEALTH
OFFICIAL WITH WHICH WE ARE CONCERNED MAY BE SATISFIED BY WHAT IS, IN
EFFECT, A SYNTHETIC SEARCH WARRANT, AN AUTHORIZATION "FOR PERIODIC
INSPECTIONS."  IF A SEARCH WARRANT BE CONSTITUTIONALLY REQUIRED, THE
REQUIREMENT CANNOT BE FLEXIBLY INTERPRETED TO DISPENSE WITH THE
RIGOROUS CONSTITUTIONAL RESTRICTIONS FOR ITS ISSUE.  A LOOSE BASIS FOR
GRANTING A SEARCH WARRANT FOR THE SITUATION BEFORE US IS TO ENTER BY
WAY OF THE BACK DOOR TO A RECOGNITION OF THE FACT THAT BY REASON OF
THEIR INTRINSIC ELEMENTS, THEIR HISTORIC SANCTIONS, AND THEIR
SAFEGUARDS, THE MARYLAND PROCEEDINGS REQUESTING PERMISSION TO MAKE A
SEARCH WITHOUT INTRUDING WHEN PERMISSION IS DENIED, DO NOT OFFEND THE
PROTECTION OF THE FOURTEENTH AMENDMENT. 

IN LIGHT OF THE LONG HISTORY OF THIS KIND OF INSPECTION AND OF MODERN
NEEDS, WE CANNOT SAY THAT THE CAREFULLY CIRCUMSCRIBED DEMAND WHICH
MARYLAND HERE MAKES ON APPELLANT'S FREEDOM HAS DEPRIVED HIM OF DUE
PROCESS OF LAW.  AFFIRMED. 

FN1  IF THE NUISANCE CONSTITUTES AN ACTUAL MENACE TO HEALTH THE
COMMISSIONER MAY ABATE IT FORTHWITH.  BALTIMORE CITY CODE, ART. 12,
SEC. 112. 

FN2  TUDOR, LIFE OF JAMES OTIS (1823), 66.  NO COMPLETE TEXT OF THE
OTIS SPEECH IS EXTANT, BUT SEE NOTES OF HORACE GRAY, JR. IN QUINCY'S
MASSACHUSETTS REPORTS FOR 1761-1762, APP. I, PP. 469 ET SEQ. TUDOR'S
LIFE CONTAINS AN ACCOUNT OF IT AS WELL AS OF THE EVENTS LEADING TO THE
SPEECH AND THE REACTION TO IT. 

FN3  ID., AT 61.  ADAMS SAID: 

"OTIS WAS A FLAME OF FIRE; WITH A PROMPTITUDE OF CLASSICAL ALLUSIONS,
A DEPTH OF RESEARCH, A RAPID SUMMARY OF HISTORICAL EVENTS AND DATES, A
PROFUSION OF LEGAL AUTHORITIES, A PROPHETIC GLANCE OF HIS EYES INTO
FUTURITY, AND A RAPID TORRENT OF IMPETUOUS ELOQUENCE, HE HURRIED AWAY
ALL BEFORE HIM.  AMERICAN INDEPENDENCE WAS THEN AND THERE BORN.  THE
SEEDS OF PATRIOTS AND HEROES, TO DEFEND THE NON SINE DIIS ANIMOSUS
INFANS; TO DEFEND THE VIGOROUS YOUTH, WERE THEN AND THERE SOWN.  EVERY
MAN OF AN IMMENSE CROUDED AUDIENCE APPEARED TO ME TO GO AWAY AS I DID,
READY TO TAKE ARMS AGAINST WRITS OF ASSISTANCE.  THEN AND THERE, WAS
THE FIRST SCENE OF THE FIRST ACT OF OPPOSITION, TO THE ARBITRARY CLAIMS
OF GREAT BRITAIN.  THEN AND THERE, THE CHILD INDEPENDENCE WAS BORN.  IN
FIFTEEN YEARS, I.E. IN 1776, HE GREW UP TO MANHOOD AND DECLARED HIMSELF
FREE."  ID., AT 60-61. 

FN4  THE COURT IN BOYD V. UNITED STATES, 116 U.S. 616, RELIED HEAVILY
ON THE INTERRELATIONSHIP BETWEEN THE FOURTH AND FIFTH AMENDMENTS, A
VIEW CHALLENGED BY PROFESSOR WIGMORE.  SEE 8 WIGMORE, EVIDENCE (3D ED.
1940), SEC. 2264. 

FN5  NEARLY ALL THE EARLY MARYLAND STATUTES ARE CONTAINED IN RECORDS
OF THE STATES OF THE UNITED STATES OF AMERICA, A COLLECTION COMPILED BY
THE LIBRARY OF CONGRESS IN ASSOCIATION WITH THE UNIVERSITY OF NORTH
CAROLINA IN 1949.  THIS COLLECTION IS ON MICROFILM.  MANY VOLUMES OF
THE EARLY MARYLAND SESSION LAWS ARE AVAILABLE IN VARIOUS LIBRARY
COLLECTIONS THROUGHOUT THE COUNTRY.  NO COMPLETE COLLECTION IS KNOWN TO
EXIST.  A TYPICAL TOBACCO INSPECTION STATUTE IS MARYLAND LAWS, NOVEMBER
1773, C. 1, SECS. LXXIV, LXXX.  AT TIMES A WARRANT WAS REQUIRED FOR
INSPECTIONS OF HOMES.  ID., SEC. LXXIII.  SEE ALSO MARYLAND LAWS, 1717,
C. VII.  OTHER COLONIES ALSO HAD STATUTES ALLOWING INSPECTION TO
ENFORCE STANDARDS FOR THE MANUFACTURE OR SHIPPING OF VARIOUS ITEMS OF
TRADE.  SEE, E.G., VIRGINIA LAWS, 15 GEO. II (1742), C. IV (PORK AND
BEEF); VIRGINIA LAWS, 12 GEO. III (1772), C. II (FLOUR AND BREAD);
PENNSYLVANIA LAWS, 1722, C. CCLII (FLOUR AND BREAD); PENNSYLVANIA LAWS,
1727, C. CCXCV (BEEF AND PORK); PENNSYLVANIA LAWS, 1729-1730, C. CCCXVI
(HEMP). 

FN6  SEE, E.G., MARYLAND LAWS, 1715, C. XLVI (TOBACCO); MARYLAND
LAWS, MAY 1756, P. 5, SEC. XLVI; MARYLAND LAWS, MARCH 1758, P. 3, SEC.
X. 

FN7  IBID. 

FN8  SEE GIVNER V. STATE, 210 MD. 484, 492-494, 124 A.2D 764, 768
769.  THE MARYLAND COURT OF APPEALS HAS SAID THAT THIS PROVISION OF ITS
DECLARATION OF RIGHTS (ORIGINALLY ARTICLE 23, NOW ARTICLE 26) IS "IN
PARI MATERIA" WITH THE FOURTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.  ID., AT 492. 

FN9  MARYLAND LAWS, NOV. 1782, C. XVII, SEC. VII.  A SIMILAR LAW HAD
BEEN IN FORCE IN PENNSYLVANIA SINCE 1761.  PENNSYLVANIA LAWS, 1761
1762, C. CCCCLXXX. 

FN10  MARYLAND LAWS, APRIL 1787, C. XXIII.  SEE ALSO PENNSYLVANIA
LAWS, 1782, C. MXXXI. 

FN11  MARYLAND LAWS, NOV. 1789, C. VIII, SEC. 5.  SEE ALSO MARYLAND
LAWS, NOV. 1792, C. LXV, SEC. VII; MARYLAND LAWS, 1793, C. LVI;
MARYLAND LAWS, 1784, C. VII. 

FN12  BALTIMORE ORDINANCES, 1801-1802, NO. 23, SEC. 6.  THE BALTIMORE
CITY HEALTH DEPARTMENT MAY BE THE OLDEST IN THE COUNTRY.  SEE 35 AM. J.
OF PUBLIC HEALTH (JAN. 1945), 49. 

FN13  SEE HOWARD, PUBLIC HEALTH ADMINISTRATION AND THE NATURAL
HISTORY OF DISEASE IN BALTIMORE, MARYLAND, 1797-1920 (1924), 140. 

FN14  SEE, ID., AT 145-146.  FOR EXAMPLE, IN 1880 THERE WERE 4,292
NUISANCES INSPECTED BY SANITARY INSPECTORS.  IN 1890 THERE WERE 34,138
SUCH INSPECTIONS.  IBID. 

FN15  COMPARE KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS, 330 U.S.
552, AND OWNBEY V. MORGAN, 256 U.S. 94, WITH BROWN V. BOARD OF
EDUCATION, 347 U.S. 483. 

FN16  THE BALTIMORE HEALTH DEPARTMENT KEEPS A RECORD OF THE NUMBER OF
INSPECTIONS MADE ANNUALLY.  ALL BUT A FEW OF THESE ARE INSPECTIONS OF
DWELLINGS.  THE FIGURES FOR THE LAST FIVE YEARS ARE AS FOLLOWS:  1954,
28,081 INSPECTIONS; 1955, 25,021 INSPECTIONS; 1956, 35,120 INSPECTIONS;
1957, 33,573 INSPECTIONS; 1958, 36,119 INSPECTIONS.  MEMORANDUM OF
APPELLEE AT REQUEST OF COURT 2.  THE HEALTH COMMISSIONER OF BALTIMORE
ESTIMATES THAT THE NUMBER OF PROSECUTIONS UNDER SEC. 120 AVERAGE ONE
PER YEAR. 

OF 57 CITIES WHOSE HEALTH CODES WERE STUDIED BY THE URBAN RENEWAL
ADMINISTRATION, 36 EMPOWERED THEIR OFFICERS TO ENTER AND INSPECT FOR
VIOLATIONS.  SEE PROVISIONS OF HOUSING CODES IN VARIOUS AMERICAN
CITIES, URBAN RENEWAL BULLETIN NO. 3 (PUBLISHED BY URBAN RENEWAL
ADMINISTRATION OF THE HOUSING AND HOME FINANCE AGENCY 1956). 

FOR A DISCUSSION OF SOME OF THE PROBLEMS OF URBAN RENEWAL, SEE NOTE,
72 HARV. L. REV. 504. 

MR. JUSTICE WHITTAKER, CONCURRING. 

THE CORE OF THE FOURTH AMENDMENT PROHIBITING UNREASONABLE SEARCHES
APPLIES TO THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  WOLF V. COLORADO, 338 U.S. 25.  I UNDERSTAND THE COURT'S
OPINION TO ADHERE FULLY TO THAT PRINCIPLE.  AND BEING CONVINCED THAT
THE HEALTH INSPECTOR'S REQUEST FOR PERMISSION TO ENTER PETITIONER'S
PREMISES IN MIDDAY FOR THE SOLE PURPOSE OF ATTEMPTING TO LOCATE THE
HABITAT OF DISEASE-CARRYING RODENTS KNOWN TO BE SOMEWHERE IN THE
IMMEDIATE AREA WAS NOT A REQUEST FOR PERMISSION TO MAKE, AND THAT THE
CODE PROCEDURES FOLLOWED DID NOT AMOUNT TO ENFORCEMENT OF, AN
UNREASONABLE SEARCH WITHIN THE MEANING OF THE FOURTH AND FOURTEENTH
AMENDMENTS, I JOIN THE OPINION OF THE COURT. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

THE DECISION TODAY GREATLY DILUTES THE RIGHT OF PRIVACY WHICH EVERY
HOMEOWNER HAD THE RIGHT TO BELIEVE WAS PART OF OUR AMERICAN HERITAGE. 
WE WITNESS INDEED AN INQUEST OVER A SUBSTANTIAL PART OF THE FOURTH
AMENDMENT. 

THE QUESTION IN THIS CASE IS WHETHER A SEARCH WARRANT IS NEEDED TO
ENTER A CITIZEN'S HOME TO INVESTIGATE SANITARY CONDITIONS.  THE COURT
HOLDS THAT NO SEARCH WARRANT IS NEEDED, THAT A KNOCK ON THE DOOR IS ALL
THAT IS REQUIRED, THAT FOR FAILURE OF THE CITIZEN TO OPEN THE DOOR HE
CAN BE PUNISHED.  FROM THESE CONCLUSIONS I AM FORCED TO DISSENT. 

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ENJOINS UPON THE
STATES THE GUARANTEE OF PRIVACY EMBODIED IN THE FOURTH AMENDMENT (WOLF
V. COLORADO, 338 U.S. 25) - WHATEVER MAY BE THE MEANS ESTABLISHED UNDER
THE FOURTH AMENDMENT TO ENFORCE THAT GUARANTEE.  THE COURT NOW CASTS A
SHADOW OVER THAT GUARANTEE AS RESPECTS SEARCHES AND SEIZURES IN CIVIL
CASES.  ANY SUCH CONCLUSION WOULD REQUIRE CONSIDERABLE EDITING AND
REVISION OF THE FOURTH AMENDMENT.  FOR BY ITS TERMS IT PROTECTS THE
CITIZEN AGAINST UNREASONABLE SEARCHES AND SEIZURES BY GOVERNMENT,
WHATEVER MAY BE THE COMPLAINT.  THE WORDS ARE BROAD AND INCLUSIVE: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED."    THE COURT
SAID IN WOLF V. COLORADO, SUPRA, AT 27, THAT "THE SECURITY OF ONE'S
PRIVACY AGAINST ARBITRARY INTRUSION BY THE POLICE - WHICH IS AT THE
CORE OF THE FOURTH AMENDMENT - IS BASIC TO A FREE SOCIETY."  NOW THAT
RESOUNDING PHRASE IS WATERED DOWN TO EMBRACE ONLY CERTAIN INVASIONS OF
ONE'S PRIVACY.  IF OFFICIALS COME TO INSPECT SANITARY CONDITIONS, THEY
MAY COME WITHOUT A WARRANT AND DEMAND ENTRY AS OF RIGHT.  THIS IS A
STRANGE DELETION TO MAKE FROM THE FOURTH AMENDMENT.  IN SOME STATES THE
HEALTH INSPECTORS ARE NONE OTHER THAN THE POLICE THEMSELVES.  IN SOME
STATES THE PRESENCE OF UNSANITARY CONDITIONS GIVES RISE TO CRIMINAL
PROSECUTIONS.  BALTIMORE CITY CODE, ART. 12, SECS. 112 AND 119 - THE
ONE INVOLVED IN THE PRESENT CASE - MAKES THE FAILURE TO ABATE A
NUISANCE A MISDEMEANOR.  THE KNOCK ON THE DOOR IN ANY HEALTH INSPECTION
CASE MAY THUS LAY THE GROUNDWORK FOR A CRIMINAL PROSECUTION.  THE
RESISTANCE OF THE CITIZEN IN THE PRESENT CASE LED TO THE IMPOSITION OF
A FINE.  IF A FINE MAY BE IMPOSED, WHY NOT A PRISON TERM? 

IT IS SAID, HOWEVER, THAT THIS FINE IS SO SMALL AS TO AMOUNT ONLY TO
AN ASSESSMENT TO COVER THE COSTS OF THE INSPECTION.  YET IF THIS FINE
CAN BE IMPOSED, THE PREMISES CAN BE REVISITED WITHOUT A WARRANT AND
REPEATED FINES IMPOSED.  THE TRUTH IS THAT THE AMOUNT OF THE FINE IS
NOT THE MEASURE OF THE RIGHT.  THE RIGHT IS THE GUARANTEE AGAINST
INVASION OF THE HOME BY OFFICERS WITHOUT A WARRANT.  NO OFFICER OF
GOVERNMENT IS AUTHORIZED TO PENALIZE THE CITIZEN BECAUSE HE INVOKES HIS
CONSTITUTIONAL PROTECTION. 

MOREOVER, THE PROTECTION OF THE FOURTH AMENDMENT HAS HERETOFORE BEEN
THOUGHT TO PROTECT PRIVACY WHEN CIVIL LITIGATION, AS WELL AS CRIMINAL
PROSECUTIONS, WAS IN THE OFFING.  WHY OTHERWISE THE GREAT CARE
EXERCISED BY THE COURT IN RESTRICTING AGENCIES LIKE THE FEDERAL TRADE
COMMISSION IN MAKING INVESTIGATIONS IN SUPPORT OF THEIR POWER TO ISSUE
CEASE AND DESIST ORDERS?  FEAR OF TRESPASSING ON FOURTH AMENDMENT
RIGHTS WAS EXPRESSLY MADE THE GROUND FOR A NARROW READING OF STATUTORY
POWERS IN FEDERAL TRADE COMM'N V. AMERICAN TOBACCO CO., 264 U.S. 298,
307.  THE "FISHING EXPEDITIONS" THERE CONDEMNED, ID., AT 306, LED NO
MORE DIRECTLY TO POSSIBLE CRIMINAL PROSECUTIONS THAN THE KNOCK ON THE
DOOR IN THE PRESENT CASE. 

THE COURT MISREADS HISTORY WHEN IT RELATES THE FOURTH AMENDMENT
PRIMARILY TO SEARCHES FOR EVIDENCE TO BE USED IN CRIMINAL
PROSECUTIONS.  THAT CERTAINLY IS NOT THE TEACHING OF ENTICK V.
CARRINGTON, 19 HOWELL'S ST. TR. COL. 1029.  AT THAT TIME - 1765 - IT
WAS THE SEARCH FOR THE NONCONFORMIST THAT LED BRITISH OFFICIALS TO
RANSACK PRIVATE HOMES.  THE COMMANDS OF OUR FIRST AMENDMENT (AS WELL AS
THE PROHIBITIONS OF THE FOURTH AND THE FIFTH) REFLECT THE TEACHINGS OF
ENTICK V. CARRINGTON, SUPRA. THESE THREE AMENDMENTS ARE INDEED CLOSELY
RELATED, SAFEGUARDING NOT ONLY PRIVACY AND PROTECTION AGAINST SELF
INCRIMINATION BUT "CONSCIENCE AND HUMAN DIGNITY AND FREEDOM OF
EXPRESSION AS WELL."  SEE ULLMANN V. UNITED STATES, 350 U.S. 422, 445
ET SEQ. (DISSENT); FELDMAN V. UNITED STATES, 322 U.S. 487, 499
(DISSENT).  IT IS ONLY IN THAT SETTING THAT ENTICK V. CARRINGTON,
SUPRA, CAN BE UNDERSTOOD, AS EVIDENCED BY LORD CAMDEN'S LONG REVIEW OF
THE OPPRESSIVE PRACTICES DIRECTED AT THE PRESS BY THE STAR CHAMBER, THE
LONG PARLIAMENT, AND THE LICENSING ACTS.  19 HOWELL'S ST. TR. COLS. 
1069-1072.  IT WAS IN THE SETTING OF FREEDOM OF EXPRESSION THAT LORD
CAMDEN DENOUNCED THE GENERAL WARRANTS.  TAYLOR, THE AMERICAN
CONSTITUTION (1911), P. 234, GIVES THE CORRECT INTERPRETATION OF THAT
HISTORICAL EPISODE: 

"IN THE EFFORT TO DESTROY THE FREEDOM OF THE PRESS, BY A STRAINED
EXERCISE OF THE PREROGATIVE A GENERAL WARRANT WAS ISSUED IN 1763 FOR
THE DISCOVERY AND APPREHENSION OF THE AUTHORS AND PRINTERS (NOT NAMED)
OF THE OBNOXIOUS NO. 45 OF THE NORTH BRITON, WHICH COMMENTED IN SEVERE
AND OFFENSIVE TERMS ON THE KING'S SPEECH AT THE PROROGATION OF
PARLIAMENT AND UPON THE UNPOPULAR PEACE OF PARIS RECENTLY (FEBRUARY 10,
1763) CONCLUDED.  FORTY-NINE PERSONS, INCLUDING WILKES, WERE ARRESTED
UNDER THE GENERAL WARRANT; AND WHEN IT WAS ASCERTAINED THAT WILKES WAS
THE AUTHOR, AN INFORMATION FOR LIBEL WAS FILED AGAINST HIM ON WHICH A
VERDICT WAS OBTAINED.  IN SUITS AFTERWARD BROUGHT AGAINST THE UNDER
SECRETARY OF STATE WHO HAD ISSUED THE GENERAL WARRANT, WILKES, AND
DRYDEN LEACH, ONE OF THE PRINTERS ARRESTED ON SUSPICION, OBTAINED
VERDICTS FOR DAMAGES.  WHEN THE MATTER CAME BEFORE THE KING'S BENCH IN
1765, LORD MANSFIELD AND THE OTHER THREE JUDGES PRONOUNCED THE GENERAL
WARRANT ILLEGAL, DECLARING THAT 'NO DEGREE OF ANTIQUITY COULD GIVE
SANCTION TO A USAGE BAD IN ITSELF.'"  AND SEE 2 PATERSON, LIBERTY OF
THE SUBJECT (1877), PP. 129-132. 

THIS HISTORY, ALSO RECOUNTED IN BOYD V. UNITED STATES, 116 U.S. 616,
625-626, WAS, IN THE WORDS OF MR. JUSTICE BRADLEY, "FRESH IN THE
MEMORIES OF THOSE WHO ACHIEVED OUR INDEPENDENCE AND ESTABLISHED OUR
FORM OF GOVERNMENT."  THE FOURTH AMENDMENT THUS HAS A MUCH WIDER FRAME
OF REFERENCE THAN MERE CRIMINAL PROSECUTIONS. 

THE FALLACY IN MAINTAINING THAT THE FOURTH AMENDMENT WAS DESIGNED TO
PROTECT CRIMINALS ONLY WAS EMPHASIZED BY JUDGE PRETTYMAN IN DISTRICT OF
COLUMBIA V. LITTLE, 178 F.2D 13, 16-17, AFF'D ON OTHER GROUNDS, 339
U.S. 1: 

"THE ARGUMENT IS WHOLLY WITHOUT MERIT, PREPOSTEROUS IN FACT.  THE
BASIC PREMISE OF THE PROHIBITION AGAINST SEARCHES WAS NOT PROTECTION
AGAINST SELF-INCRIMINATION; IT WAS THE COMMON-LAW RIGHT OF A MAN TO
PRIVACY IN HIS HOME, A RIGHT WHICH IS ONE OF THE INDISPENSABLE ULTIMATE
ESSENTIALS OF OUR CONCEPT OF CIVILIZATION.  IT WAS FIRMLY ESTABLISHED
IN THE COMMON LAW AS ONE OF THE BRIGHT FEATURES OF THE ANGLO-SAXON
CONTRIBUTIONS TO HUMAN PROGRESS.  IT WAS NOT RELATED TO CRIME OR TO
SUSPICION OF CRIME.  IT BELONGED TO ALL MEN, NOR MERELY TO CRIMINALS,
REAL OR SUSPECTED.  SO MUCH IS CLEAR FROM ANY EXAMINATION OF HISTORY,
WHETHER SLIGHT OR EXHAUSTIVE.  THE ARGUMENT MADE TO US HAS NOT THE
SLIGHTEST BASIS IN HISTORY.  IT HAS NO GREATER JUSTIFICATION IN
REASON.  TO SAY THAT A MAN SUSPECTED OF CRIME HAS A RIGHT TO PROTECTION
AGAINST SEARCH OF HIS HOME WITHOUT A WARRANT, BUT THAT A MAN NOT
SUSPECTED OF CRIME HAS NO SUCH PROTECTION, IS A FANTASTIC ABSURDITY." 

JUDGE PRETTYMAN ADDED THAT THE FOURTH AMENDMENT APPLIED ALIKE TO
HEALTH INSPECTORS AS WELL AS TO POLICE OFFICERS - INDEED TO EVERY AND
ANY OFFICIAL OF GOVERNMENT SEEKING ADMISSION TO ANY HOME IN THE
COUNTRY: 

"WE EMPHASIZE THAT NO MATTER WHO THE OFFICER IS OR WHAT HIS MISSION,
A GOVERNMENT OFFICIAL CANNOT INVADE A PRIVATE HOME, UNLESS (1) A
MAGISTRATE HAS AUTHORIZED HIM TO DO SO OR (2) AN IMMEDIATE MAJOR CRISIS
IN THE PERFORMANCE OF DUTY AFFORDS NEITHER TIME NOR OPPORTUNITY TO
APPLY TO A MAGISTRATE.  THIS RIGHT OF PRIVACY IS NOT CONDITIONED UPON
THE OBJECTIVE, THE PREROGATIVE OR THE STATURE OF THE INTRUDING
OFFICER.  HIS UNIFORM, BADGE, RANK, AND THE BUREAU FROM WHICH HE
OPERATES ARE IMMATERIAL.  IT IS IMMATERIAL WHETHER HE IS MOTIVATED BY
THE HIGHEST PUBLIC PURPOSE OR BY THE LOWEST PERSONAL SPITE."  ID., AT
17.  AND SEE 44 ILL. L. REV. 845. 

THE WELL-KNOWN PROTEST OF THE ELDER PITT AGAINST INVASION OF THE HOME
BY THE POLICE, HAD NOTHING TO DO WITH CRIMINAL PROCEEDINGS. 

"THE POOREST MAN MAY IN HIS COTTAGE BID DEFIANCE TO ALL THE FORCE OF
THE CROWN.  IT MAY BE FRAIL - ITS ROOF MAY SHAKE - THE WIND MAY BLOW
THROUGH IT - THE STORM MAY ENTER, THE RAIN MAY ENTER - BUT THE KING OF
ENGLAND CANNOT ENTER - ALL HIS FORCE DARES NOT CROSS THE THRESHOLD OF
THE RUINED TENEMENT]" 

WHILE THIS STATEMENT DID NOT SPECIFICALLY REFER TO THE GENERAL
WARRANT, IT WAS SAID IN REFERENCE TO THE DANGER OF EXCISE OFFICERS
ENTERING PRIVATE HOMES TO LEVY THE "CYDER TAX."  15 HANSARD,
PARLIAMENTARY HISTORY OF ENGLAND (1753-1765) P. 1307. 

SOME OF THE STATUTES WHICH JAMES OTIS DENOUNCED DID NOT INVOLVE
CRIMINAL PROCEEDINGS.  THEY IN THE MAIN REGULATED CUSTOMS AND ALLOWED
FORFEITURES OF GOODS SHIPPED INTO THE COLONIES IN VIOLATION OF ENGLISH
SHIPPING REGULATIONS.  (FN1)  THE TWENTY-DOLLAR FORFEITURE INVOLVED
HERE IS NO DIFFERENT IN SUBSTANCE FROM THE ONES THAT OTIS AND THE
COLONISTS FOUND SO OBJECTIONABLE.  FOR THEIR OBJECTION WENT NOT TO THE
AMOUNT OR SIZE OF THE FORFEITURE BUT TO THE LAWLESS MANNER IN WHICH IT
WAS COLLECTED.  "EVERY MAN PROMPTED BY REVENGE, ILL HUMOUR, OR
WANTONNESS TO INSPECT THE INSIDE OF HIS NEIGHBOUR'S HOUSE, MAY GET A
WRIT OF ASSISTANCE."  TUDOR, LIFE OF JAMES OTIS (1823), P. 68.  IT WAS
NOT THE SEARCH THAT WAS VICIOUS.  IT WAS THE ABSENCE OF A WARRANT
ISSUED ON A SHOWING OF PROBABLE CAUSE THAT OTIS DENOUNCED - THE PRECISE
SITUATION WE HAVE HERE: 

"NOW ONE OF THE MOST ESSENTIAL BRANCHES OF ENGLISH LIBERTY IS THE
FREEDOM OF ONE'S HOUSE.  A MAN'S HOUSE IS HIS CASTLE; AND WHILST HE IS
QUIET, HE IS AS WELL GUARDED AS A PRINCE IN HIS CASTLE.  THIS WRIT, IF
IT SHOULD BE DECLARED LEGAL, WOULD TOTALLY ANNIHILATE THIS PRIVILEGE. 
CUSTOM-HOUSE OFFICERS MAY ENTER OUR HOUSES WHEN THEY PLEASE; WE ARE
COMMANDED TO PERMIT THEIR ENTRY.  THEIR MENIAL SERVANTS MAY ENTER, MAY
BREAK LOCKS, BARS, AND EVERY THING IN THEIR WAY: AND WHETHER THEY BREAK
THROUGH MALICE OR REVENGE, NO MAN, NO COURT, CAN INQUIRE.  BARE
SUSPICION WITHOUT OATH IS SUFFICIENT."  ID., AT 66-67. 

THE PHILOSOPHY OF THE FOURTH AMENDMENT WAS WELL EXPRESSED BY MR.
JUSTICE BUTLER SPEAKING FOR THE COURT IN AGNELLO V. UNITED STATES, 269
U.S. 20, 32.  "THE SEARCH OF A PRIVATE DWELLING WITHOUT A WARRANT IS IN
ITSELF UNREASONABLE AND ABHORRENT TO OUR LAWS."  WE HAVE EMPHASIZED
OVER AND AGAIN THAT A SEARCH WITHOUT A WARRANT CAN BE MADE ONLY IN
EXCEPTIONAL CIRCUMSTANCES.  IF A HOUSE IS ON FIRE OR IF THE POLICE SEE
A FUGITIVE ENTER A BUILDING, ENTRY WITHOUT A SEARCH WARRANT CAN OF
COURSE BE MADE.  YET ABSENT SUCH EXTRAORDINARY SITUATIONS, THE RIGHT OF
PRIVACY MUST YIELD ONLY WHEN A JUDICIAL OFFICER ISSUES A WARRANT FOR A
SEARCH ON A SHOWING OR PROBABLE CAUSE.  JOHNSON V. UNITED STATES, 333
U.S. 10, 14; TRUPIANO V. UNITED STATES, 334 U.S. 699, 705; MCDONALD V.
UNITED STATES, 335 U.S. 451, 454-455.  AS WE SAID IN MCDONALD V. UNITED
STATES, SUPRA, 455-456: 

"THE PRESENCE OF A SEARCH WARRANT SERVES A HIGH FUNCTION.  ABSENT
SOME GRAVE EMERGENCY, THE FOURTH AMENDMENT HAS INTERPOSED A MAGISTRATE
BETWEEN THE CITIZEN AND THE POLICE.  THIS WAS DONE NOT TO SHIELD
CRIMINALS NOR TO MAKE THE HOME A SAFE HAVEN FOR ILLEGAL ACTIVITIES.  IT
WAS DONE SO THAT AN OBJECTIVE MIND MIGHT WEIGH THE NEED TO INVADE THAT
PRIVACY IN ORDER TO ENFORCE THE LAW.  THE RIGHT OF PRIVACY WAS DEEMED
TOO PRECIOUS TO ENTRUST TO THE DISCRETION OF THOSE WHOSE JOB IS THE
DETECTION OF CRIME AND THE ARREST OF CRIMINALS.  POWER IS A HEADY
THING; AND HISTORY SHOWS THAT THE POLICE ACTING ON THEIR OWN CANNOT BE
TRUSTED.  AND SO THE CONSTITUTION REQUIRES A MAGISTRATE TO PASS ON THE
DESIRES OF THE POLICE BEFORE THEY VIOLATE THE PRIVACY OF THE HOME.  WE
CANNOT BE TRUE TO THAT CONSTITUTIONAL REQUIREMENT AND EXCUSE THE
ABSENCE OF A SEARCH WARRANT WITHOUT A SHOWING BY THOSE WHO SEEK
EXEMPTION FROM THE CONSTITUTIONAL MANDATE THAT THE EXIGENCIES OF THE
SITUATION MADE THAT COURSE IMPERATIVE." 

IN THE PRESENT CASE, THE HOMEOWNER AGREED TO LET THE INSPECTOR IN, IF
HE GOT A SEARCH WARRANT.  BUT NONE WAS EVER SOUGHT.  NO EXCUSE EXISTS
HERE FOR NOT GETTING A SEARCH WARRANT.  A WHOLE DAY ELAPSED BETWEEN THE
FIRST INSPECTION AND THE ARREST.  THE ONLY REASON GIVEN FOR NOT GETTING
A WARRANT WAS THE OFFICER'S CONVENIENCE: 

"Q.  COULD YOU NOT JUST AS WELL HAVE MADE YOUR INSPECTION ONE HOUR OR
TWO HOURS LATER THAN AT THE TIME YOU DEMANDED ENTRY? 

"A.  I COULD NOT.  I HAD TWO STUDENTS I HAD TO RELEASE AT THREE
O'CLOCK.  I HAVE TO BE IN THE OFFICE AT THREE-THIRTY EVERY DAY TO TAKE
CARE OF MY REPORTS." 

THIS IS INDEED FLIMSY GROUND FOR DENYING THIS HOMEOWNER THE
CONSTITUTIONAL PROTECTION AFFORDED BY A SEARCH WARRANT. 

WE HAVE AS LITTLE REASON FOR EXCLUDING THIS SEARCH FROM THE FOURTH
AMENDMENT AS WE WOULD FOR LIMITING THAT AMENDMENT TO THE KINDS OF
WARRANTS JAMES OTIS INVEIGHED AGAINST - THE WRITS OF ASSISTANCE AND THE
GENERAL WARRANTS.  CF. ON LEE V. UNITED STATES, 343 U.S. 747, 762;
SCHWARTZ V. TEXAS, 344 U.S. 199, 205.  FOR AS CHIEF JUSTICE VINSON
WROTE IN NUESLEIN V. DISTRICT OF COLUMBIA, 73 APP. D.C. 85, 87, 115
F.2D 690, 692, WHILE THE FOURTH AMENDMENT "WAS WRITTEN AGAINST THE
BACKGROUND OF THE GENERAL WARRANTS IN ENGLAND AND THE WRITS OF
ASSISTANCE IN THE AMERICAN COLONIES," IT "GIVES A PROTECTION WIDER THAN
THESE ABUSES."  SEE 2 ALA. L. REV. 314; 3 VAND.  L. REV. 820; 63 HARV.
L. REV. 349.  IT WAS DESIGNED TO PROTECT THE CITIZEN AGAINST
UNCONTROLLED INVASION OF HIS PRIVACY.  IT DOES NOT MAKE THE HOME A
PLACE OF REFUGE FROM THE LAW.  IT ONLY REQUIRES THE SANCTION OF THE
JUDICIARY RATHER THAN THE EXECUTIVE BEFORE THAT PRIVACY MAY BE
INVADED.  HISTORY SHOWS THAT ALL OFFICERS TEND TO BE OFFICIOUS; AND
HEALTH INSPECTORS, MAKING OUT A CASE FOR CRIMINAL PROSECUTION OF THE
CITIZEN, ARE NO EXCEPTION. 

WE LIVE IN AN ERA "WHEN POLITICALLY CONTROLLED OFFICIALS HAVE GROWN
POWERFUL THROUGH AN EVER INCREASING SERIES OF MINOR INFRACTIONS OF
CIVIL LIBERTIES."  17 U. OF CHI.  L. REV. 733, 740.  ONE INVASION OF
PRIVACY BY AN OFFICIAL OF GOVERNMENT CAN BE AS OPPRESSIVE AS ANOTHER. 
HEALTH INSPECTIONS ARE IMPORTANT.  BUT THEY ARE HARDLY MORE IMPORTANT
THAN THE SEARCH FOR NARCOTIC PEDDLERS, RAPISTS, KIDNAPPERS, MURDERERS,
AND OTHER CRIMINAL ELEMENTS.  AS WE HAVE SEEN, SEARCHES WERE ONCE IN
THEIR HEYDAY WHEN THE GOVERNMENT WAS OUT TO SUPPRESS THE
NONCONFORMISTS.  THAT IS THE TRUE EXPLANATION OF ENTICK V. CARRINGTON,
SUPRA.  MANY TODAY WOULD THINK THAT THE SEARCH FOR SUBVERSIVES WAS EVEN
MORE IMPORTANT THAN THE SEARCH FOR UNSANITARY CONDITIONS.  IT WOULD
SEEM THAT THE PUBLIC INTEREST IN PROTECTING PRIVACY IS EQUALLY AS GREAT
IN ONE CASE AS IN ANOTHER.  THE FEAR THAT HEALTH INSPECTIONS WILL
SUFFER IF CONSTITUTIONAL SAFEGUARDS ARE APPLIED IS STRONGLY HELD BY
SOME.  LIKE NOTIONS OBTAIN BY SOME LAW ENFORCEMENT OFFICIALS WHO TAKE
SHORTCUTS IN PURSUIT OF CRIMINALS.  THE SAME PATTERN APPEARS OVER AND
AGAIN WHENEVER GOVERNMENT SEEKS TO USE ITS COMPULSIVE FORCE AGAINST THE
CITIZEN.  LEGISLATIVE COMMITTEES (WATKINS V. UNITED STATES, 354 U.S.
178; SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234), ONE-MAN GRAND JURIES (IN
RE OLIVER, 333 U.S. 257), FIRE MARSHALS (IN RE GROBAN, 352 U.S. 330,
337), POLICE (ROCHIN V. CALIFORNIA, 342 U.S. 165; ON LEE V. UNITED
STATES, SUPRA, 762; LEYRA V. DENNO, 347 U.S. 556), SOMETIMES SEEK TO
PLACE THEIR REQUIREMENTS ABOVE THE CONSTITUTION.  THE OFFICIAL'S
MEASURE OF HIS OWN NEED OFTEN DOES NOT SQUARE WITH THE BILL OF RIGHTS. 

CERTAINLY THIS IS A POOR CASE FOR DISPENSING WITH THE NEED FOR A
SEARCH WARRANT.  EVIDENCE TO OBTAIN ONE WAS ABUNDANT.  THE HOUSE WAS IN
A STATE OF EXTREME DECAY; AND IN THE REAR OF THE HOUSE WAS A PILE OF
"RODENT FECES MIXED WITH STRAW AND DEBRIS TO APPROXIMATELY HALF A
TON."  THIS IS NOT TO SUGGEST THAT A HEALTH OFFICIAL NEED SHOW THE SAME
KIND OF PROOF TO A MAGISTRATE TO OBTAIN A WARRANT AS ONE MUST WHO WOULD
SEARCH FOR THE FRUITS OF INSTRUMENTALITIES OF CRIME.  WHERE
CONSIDERATIONS OF HEALTH AND SAFETY ARE INVOLVED, THE FACTS THAT WOULD
JUSTIFY AN INFERENCE OF "PROBABLE CAUSE" TO MAKE AN INSPECTION ARE
CLEARLY DIFFERENT FROM THOSE THAT WOULD JUSTIFY SUCH AN INFERENCE WHERE
A CRIMINAL INVESTIGATION HAS BEEN UNDERTAKEN.  EXPERIENCE MAY SHOW THE
NEED FOR PERIODIC INSPECTIONS OF CERTAIN FACILITIES WITHOUT A FURTHER
SHOWING OF CAUSE TO BELIEVE THAT SUBSTANDARD CONDITIONS DANGEROUS TO
THE PUBLIC ARE BEING MAINTAINED.  THE PASSAGE OF A CERTAIN PERIOD
WITHOUT INSPECTION MIGHT OF ITSELF BE SUFFICIENT IN A GIVEN SITUATION
TO JUSTIFY THE ISSUANCE OF A WARRANT.  THE TEST OF "PROBABLE CAUSE"
REQUIRED BY THE FOURTH AMENDMENT CAN TAKE INTO ACCOUNT THE NATURE OF
THE SEARCH THAT IS BEING SOUGHT.  THIS IS NOT TO SANCTION SYNTHETIC
SEARCH WARRANTS BUT TO RECOGNIZE THAT THE SHOWING OF PROBABLE CAUSE IN
A HEALTH CASE MAY HAVE QUITE DIFFERENT REQUIREMENTS THAN THE ONE
REQUIRED IN GRAVER SITUATIONS.  IT CAN HARDLY BE DENIED, UNLESS HISTORY
IS IGNORED, THAT THE POLICEMAN'S OR THE INSPECTOR'S KNOCK ON THE DOOR
IS ONE OF THESE "OFFICIAL ACTS AND PROCEEDINGS" WHICH BOYD V. UNITED
STATES, SUPRA, 624, BROUGHT SQUARELY WITHIN THE FOURTH AMENDMENT.  THAT
BEING TRUE, IT SEEMS TO US PLAIN THAT THERE IS NOTHING IN THE FOURTH
AMENDMENT THAT RELIEVES THE HEALTH INSPECTOR ALTOGETHER FROM MAKING AN
APPROPRIATE SHOWING TO A MAGISTRATE IF HE WOULD ENTER A PRIVATE
DWELLING WITHOUT THE OWNER'S CONSENT. 

THAT PROBLEM, WHILE IMPORTANT OVERALL, IS NOT IMPORTANT TO THE
SITUATION WITH WHICH WE DEAL.  FIGURES SUBMITTED BY THE BALTIMORE
HEALTH DEPARTMENT SHOW THAT CITIZENS ARE MOSTLY COOPERATIVE IN GRANTING
ENTRANCE TO INSPECTORS.  (FN2)  THERE WERE 28,081 INSPECTIONS IN 1954;
25,021 IN 1955; 35,120 IN 1956; 33,573 IN 1957; AND 36,119 IN 1958. 
AND IN ALL THESE INSTANCES THE NUMBER OF PROSECUTIONS WAS ESTIMATED TO
AVERAGE ONE A YEAR.  SUBMISSION BY THE OVERWHELMING MAJORITY OF THE
POPULACE INDICATES THERE IS NO PERIL TO THE HEALTH PROGRAM.  ONE REBEL
A YEAR (CF. WHYTE, THE ORGANIZATION MAN) IS NOT TOO GREAT A PRICE TO
PAY FOR MAINTAINING OUR GUARANTEE OF CIVIL RIGHTS IN FULL VIGOR. 

ENGLAND - A NATION NO LESS MINDFUL OF PUBLIC HEALTH THAN WE AND
KEENLY CONSCIOUS OF CIVIL LIBERTIES - HAS LONG PROCEEDED ON THE BASIS
THAT WHERE THE CITIZEN DENIES ENTRANCE TO A HEALTH INSPECTOR, A SEARCH
WARRANT IS NEEDED.  PUBLIC HEALTH ACT OF 1936, 26 GEO. 5 & 1 EDW.  8,
C. 49, SECS. 285-287; VINES V. GOVERNORS, 63 J.P. 244 (Q.B. 1899);
ROBINSON V. CORPORATION OF SUTHERLAND, (1899) 1 Q.B. 751; WIMBLEDON
URBAN DISTRICT COUNSEL V. HASTINGS, 87 L.T. REP.  (5 N.S.)  118 (K.B.
1902); CONSETT URBAN DISTRICT COUNCIL V. CRAWFORD, (1903) 2 K.B. 183;
24 HALSBURY'S LAWS (2D ED. 1937), P. 102, NOTE M. 

WE CANNOT DO LESS AND STILL BE TRUE TO THE COMMAND OF THE FOURTH
AMENDMENT WHICH PROTECTS EVEN THE LOWLIEST HOME IN THE LAND FROM
INTRUSION ON THE MERE SAY-SO OF AN OFFICIAL. 

FN1  6 GEO. 2, C. 13 (1733); 13 & 14 CAR.  2, C. 11 (1662); 15 CAR. 
2, C. 7 (1663); 7 & 8 WILL.  3, C. 22 (1696). 

FN2  WE ARE POINTED TO NO BODY OF JUDICIAL OPINION WHICH PURPORTS TO
AUTHORIZE ENTRIES INTO PRIVATE DWELLINGS WITHOUT WARRANTS IN SEARCH OF
UNSANITARY CONDITIONS.  WHAT IS DEVELOPED IN THE COURT'S OPINION
CONCERNING MARYLAND'S LONG-STANDING HEALTH MEASURES MAY BE ONLY A
HISTORY OF ACQUIESCENCE OR A POLICY OF ENFORCEMENT WHICH NEVER TESTED
THE PROCEDURE IN A DEFINITIVE AND AUTHORITATIVE WAY.  PLAINLY WE ARE
NOT FACED WITH A SITUATION OF CONSTITUTIONAL ADJUDICATIONS OF LONG
DURATION, WHERE CHANGE IS RESISTED BECAUSE COMMUNITY PATTERNS HAVE BEEN
BUILT AROUND THEM. 
..END :





















FEDERAL TRADE COMMISSION V. MANDEL BROTHERS 359 U.S. 385 


NO. 234.  ARGUED MARCH 23, 1959 - DECIDED MAY 4, 1959 - 254 F.2D 18,
REVERSED. 


1.  THE PROVISIONS OF THE FUR PRODUCTS LABELING ACT WHICH PROHIBIT
FALSE AND DECEPTIVE INVOICING APPLY TO RETAIL SALES, AND A RETAIL SALES
SLIP IS AN "INVOICE" AS THAT TERM IS DEFINED IN SEC. 2(F) OF THE ACT. 
PP. 388-391. 

2.  IN A PROCEEDING CHARGING A RETAIL DEPARTMENT STORE WITH
MISBRANDING ITS FUR PRODUCTS IN VIOLATION OF THE FUR PRODUCTS LABELING
ACT, THE FEDERAL TRADE COMMISSION FOUND THAT IT HAD COMMITTED NUMEROUS
VIOLATIONS OF THREE OF THE SIX DISCLOSURE REQUIREMENTS OF SEC. 4(2),
BUT THAT THERE WAS NO EVIDENCE OF VIOLATIONS OF THE OTHER THREE, AND
THE COMMISSION ISSUED A CEASE-AND-DESIST ORDER AGAINST "MISBRANDING"
FUR PRODUCTS BY FAILING TO AFFIX LABELS SHOWING EACH OF THE SIX
CATEGORIES OF INFORMATION REQUIRED BY SEC. 4(2).  HELD:  THE COMMISSION
DID NOT ABUSE ITS DISCRETION BY MAKING ITS ORDER APPLY TO ALL SIX
CATEGORIES.  PP. 391-393. 

3.  THE COMMISSION'S ORDER IS TO BE REPHRASED SO AS NOT TO SUGGEST
THAT THE STORE HAD SOLD GARMENTS CONTRARY TO THE DISCLOSURE
REQUIREMENTS NOT FOUND TO HAVE BEEN VIOLATED HERE.  P. 393. 

FEDERAL TRADE COMMISSION V. MANDEL BROTHERS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER ISSUED A COMPLAINT CHARGING RESPONDENT, A RETAIL
DEPARTMENT STORE, WITH VIOLATIONS OF THE FUR PRODUCTS LABELING ACT, 65
STAT. 175, 15 U.S.C. SEC. 69.  VIOLATIONS WERE FOUND AND A CEASE-AND
DESIST ORDER WAS ISSUED.  ONE OF THE PRINCIPAL VIOLATIONS FOUND WAS
THAT MANY OF RESPONDENT'S RETAIL SALES WERE FALSELY "INVOICED" IN
VIOLATION OF SEC. 3 OF THE ACT.  (FN1)  THE TERM "INVOICE" IS DEFINED
IN SEC. 2(F) AS "A WRITTEN ACCOUNT, MEMORANDUM, LIST, OR CATALOG, WHICH
IS ISSUED IN CONNECTION WITH ANY COMMERCIAL DEALING IN FUR PRODUCTS OR
FURS, AND DESCRIBES THE PARTICULARS OF ANY FUR PRODUCTS OR FURS,
TRANSPORTED OR DELIVERED TO A PURCHASER, CONSIGNEE, FACTOR, BAILEE,
CORRESPONDENT, OR AGENT, OR ANY OTHER PERSON WHO IS ENGAGED IN DEALING
COMMERCIALLY IN FUR PRODUCTS OR FURS."  SECTION 5(B) PROVIDES THAT A
FUR PRODUCT OR FUR IS FALSELY "INVOICED" IF IT IS NOT "INVOICED" TO
SHOW (A) THE NAME OF THE ANIMAL THAT PRODUCED THE FUR; AND, WHERE
APPLICABLE, THAT THE PRODUCT (B) CONTAINS USED FUR, (C) CONTAINS
BLEACHED, DYED, OR OTHERWISE ARTIFICIALLY COLORED FUR, (D) IS COMPOSED
IN WHOLE OR SUBSTANTIAL PART OF PAWS, TAILS, BELLIES, OR WASTE FUR; (E)
THE NAME AND ADDRESS OF THE PERSON ISSUING THE "INVOICE"; AND (F) THE
COUNTRY OF ORIGIN OF ANY IMPORTED FURS. 

THE COMMISSION FOUND THAT RESPONDENT HAD VIOLATED THE "INVOICE"
PROVISIONS OF THE ACT BY FAILURE TO INCLUDE IN MANY OF ITS RETAIL SALES
SLIPS OF FUR PRODUCTS, (A) ITS ADDRESS, (B) WHETHER THE FUR WAS
BLEACHED, DYED, OR OTHERWISE ARTIFICIALLY COLORED, AND (C) THE CORRECT
NAME OF THE ANIMAL PRODUCING THE FUR. 

THE ACT IN SEC. 4 ALSO PROVIDES (FN2) THAT A FUR PRODUCT IS
MISBRANDED (1) IF IT IS "FALSELY OR DECEPTIVELY LABELED  ...  OR
IDENTIFIED," (2) IF THERE IS NOT AFFIXED A LABEL SETTING FORTH
SUBSTANTIALLY THE SAME SIX ITEMS OF INFORMATION REQUIRED FOR AN
"INVOICE," OR (3) IF THE LABEL DESIGNATES THE ANIMAL THAT PRODUCED THE
FUR BY SOME NAME OTHER THAN THAT PRESCRIBED IN THE FUR PRODUCTS NAME
GUIDE.  (FN3)  THE COMMISSION FOUND THAT THE LABELS ON RESPONDENT'S FUR
PRODUCTS WERE FALSE IN NUMEROUS INSTANCES BY REASON OF THE FAILURE TO
INCLUDE INFORMATION IN THREE OF THE CATEGORIES LISTED UNDER THE SECOND
PART OF SEC. 4.  IT HELD, HOWEVER, THAT THERE WAS NO EVIDENCE THAT THE
LABELS WERE DEFICIENT IN THE OTHER THREE CATEGORIES OF INFORMATION. 
NEVERTHELESS, IT ISSUED A CEASE-AND-DESIST ORDER AGAINST MISBRANDING BY
FAILURE TO INCLUDE IN THE LABELS THE REQUIRED SIX CATEGORIES OF
INFORMATION, ALL OF WHICH WERE LISTED. 

ON APPEAL, THE COURT OF APPEALS FIRST ELIMINATED THE PROHIBITIONS
RELATING TO INVOICING ON THE GROUND THAT A RETAIL SALES SLIP WAS NOT AN
"INVOICE" WITHIN THE MEANING OF THE ACT; AND SECOND, IT STRUCK FROM THE
ORDER THE PROHIBITION AGAINST MISBRANDING THROUGH OMISSION OF THE THREE
CATEGORIES AS TO WHICH NO VIOLATIONS WERE FOUND.  254 F.2D 18.  THE
CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI.  358 U.S. 812. 

                   I. 

FIRST, AS TO INVOICING.  WE START WITH AN ACT WHOSE AVOWED PURPOSE,
INTER ALIA, WAS TO PROTECT "CONSUMERS  ...  AGAINST DECEPTION  ...
RESULTING FROM THE MISBRANDING, FALSE OR DECEPTIVE ADVERTISING, OR
FALSE INVOICING OF FUR PRODUCTS AND FURS."  S. REP. NO. 78, 82D CONG.,
1ST SESS., P. 1.  THE HOUSE REPORT ALSO EMPHASIZES THAT THE BILL WAS
"DESIGNED TO PROTECT CONSUMERS AND OTHERS FROM WIDESPREAD ABUSES"
ARISING OUT OF FALSE AND MISLEADING MATTER IN ADVERTISEMENTS AND
OTHERWISE.  H.R. REP. NO. 546, 82D CONG., 1ST SESS., P. 1.  THE TITLE
OF THE ACT (WHICH, THOUGH NOT LIMITING THE PLAIN MEANING OF THE TEXT,
IS NONETHELESS A USEFUL AID IN RESOLVING AN AMBIGUITY (SEE MAGUIRE V.
COMMISSIONER, 313 U.S. 1, 9)), STATES THAT ITS PURPOSE WAS TO "PROTECT
CONSUMERS AND OTHERS AGAINST ...  FALSE INVOICING OF FUR PRODUCTS AND
FURS."  65 STAT. 175.  SO WE HAVE AN AVOWED PURPOSE TO PROTECT RETAIL
PURCHASERS AGAINST IMPROPER "INVOICING."  WE THEREFORE SHOULD READ SEC.
2(F) WHICH CONTAINS THE DEFINITION OF "INVOICE" HOSPITABLY WITH THAT
END IN VIEW.  SECTION 2(F) IS NOT UNAMBIGUOUS.  YET WE DO NOT HAVE HERE
THE PROBLEM OF A PENAL STATUTE THAT DESERVES STRICT CONSTRUCTION.  WE
DEAL WITH REMEDIAL LEGISLATION OF A REGULATORY NATURE WHERE OUR TASK IS
TO FIT, IF POSSIBLE, ALL PARTS INTO AN HARMONIOUS WHOLE.  BLACK V.
MAGNOLIA LIQUOR CO., 355 U.S. 24, 26. 

"MEMORANDUM."  SO FAR A RETAIL SALES SLIP IS INCLUDED.  SECTION 2(F)
REQUIRES THE "INVOICE" TO BE ISSUED "IN CONNECTION WITH ANY COMMERCIAL
DEALING" IN FURS.  A RETAIL SALE IS PLAINLY A "COMMERCIAL DEALING." 
AGAIN A CUSTOMER OF A RETAILER IS A "PURCHASER."  THE CASE FOR
INCLUSION OF A RETAIL SALES SLIP IN "INVOICE," AS THAT TERM IS USED IN
THE ACT, WOULD THEREFORE SEEM TO BE COMPLETE.  WHAT TURNED THE COURT OF
APPEALS THE OTHER WAY WAS THE LAST PHRASE IN SEC. 2(F) - "OR ANY OTHER
PERSON WHO IS ENGAGED IN DEALING COMMERCIALLY IN FUR PRODUCTS OR
FURS."   IT HELD THAT "ENGAGED IN DEALING COMMERCIALLY" MODIFIES NOT
ONLY "ANY OTHER PERSON" BUT ALSO ALL THE OTHER PRECEDING TERMS IN THE
SUBSECTION INCLUDING "PURCHASER."  CF. UNITED STATES V. STANDARD
BREWERY, 251 U.S. 210, 218.  THAT IS A POSSIBLE CONSTRUCTION.  WE
CONCLUDE, HOWEVER, THAT THIS LIMITING CLAUSE IS TO BE APPLIED ONLY TO
THE LAST ANTECEDENT.  (FN4)  WE THINK IT WOULD BE A PARTIAL MUTILATION
OF THIS ACT TO CONSTRUE IT SO THAT THE "INVOICE" PROVISIONS WERE
INAPPLICABLE TO RETAIL SALES.  IN THE FIRST PLACE, THE LANGUAGE OF SEC.
2(F) SPECIFIES IN SWEEPING LANGUAGE THE CATEGORIES OF PERSONS FOR WHOSE
BENEFIT THE INVOICING REQUIREMENTS WERE IMPOSED, VIZ., PURCHASER,
CONSIGNEE, FACTOR, BAILEE, CORRESPONDENT, OR AGENT.  THEN AS A GENERAL
CATCH-ALL "ANY OTHER PERSON WHO IS ENGAGED IN DEALING COMMERCIALLY IN
FUR PRODUCTS OR FURS" WAS ADDED.  IN THE SECOND PLACE, ONLY BY
CONSTRUING "INVOICE" TO INCLUDE RETAIL SALES SLIPS CAN THE FULL
PROTECTION OF THE ACT BE ACCORDED CONSUMERS.  WE DO NOT AGREE WITH THE
POINT STRESSED BY RESPONDENT THAT THE CONSUMER'S PROTECTION IS TO BE
FOUND SOLELY IN THE LABEL ON THE FUR PRODUCT AND THAT INVOICES ARE
REQUIRED ONLY AT EACH ANTECEDENT STEP OF DELIVERY OR TRANSFER TO A
PERSON DEALING COMMERCIALLY IN EITHER FURS OR FUR PRODUCTS.  THE
ADVERTISING AND MISLABELING PROHIBITIONS IN SEC. 3(B) OF THE ACT (FN5)
ARE PLAINLY APPLICABLE TO RETAIL SALES.  YET THE PROHIBITION OF FALSE
INVOICES IS CONTAINED IN THE SAME CLAUSE.  IF WE HELD THAT CONGRESS, IN
SPITE OF ITS DESIRE TO PROTECT CONSUMERS, WITHHELD FROM THEM THE
BENEFITS OF RELIABLE INVOICES, WE WOULD HAVE TO READ THE CLAUSES OF
SEC. 3 DISTRIBUTIVELY, MAKING ONLY SOME OF THEM APPLICABLE TO RETAIL
SALES.  THAT WOULD BE A REFASHIONING OF SEC. 3, AN UNDERTAKING MORE
CONSONANT WITH THE TASK OF A CONGRESSIONAL COMMITTEE THAN WITH JUDICIAL
CONSTRUCTION. 

MOREOVER, FUR PRODUCT "LABELS," WE ARE ADVISED, ARE NOT PIECES OF
CLOTH SEWN INTO GARMENTS BUT TAGS WHICH THE PURCHASER IS LIKELY TO
THROW AWAY AFTER THE PURCHASE.  THE "INVOICE" IS THE ONLY PERMANENT
RECORD OF THE TRANSACTION THAT THE RETAIL PURCHASER HAS.  ITS
IMPORTANCE WAS EMPHASIZED BY THE COMMISSION: 

"INASMUCH AS THE INVOICE MAY SERVE AS A DOCUMENTARY LINK CONNECTING
THE SALE OF SPECIFIC FUR PRODUCTS BACK THROUGH THE RETAILER'S RECORDS
WITH ADVERTISEMENTS THEREFOR, THE APPLICATION OF THE INVOICING
PROVISIONS OF THE ACT TO TRANSACTIONS BETWEEN RETAILERS AND CONSUMERS
REPRESENTS A KEY IMPLEMENT FOR EFFECTIVE ADMINISTRATION OF THE ACT." 

THE INCLUSION OF RETAIL SALES SLIPS IN INVOICES HAS BEEN THE
CONSISTENT ADMINISTRATIVE CONSTRUCTION OF THE ACT.  (FN6)  THIS
CONTEMPORANEOUS CONSTRUCTION IS ENTITLED TO GREAT WEIGHT (UNITED STATES
V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 549; BLACK V. MAGNOLIA
LIQUOR CO., SUPRA; FEDERAL HOUSING ADM'N V. DARLINGTON, INC., 358 U.S.
84, 90) EVEN THOUGH IT WAS APPLIED IN CASES SETTLED BY CONSENT RATHER
THAN IN LITIGATION. 

FINALLY RESPONDENT URGES THAT A RETAILER'S SALE IS A LOCAL
TRANSACTION NOT SUBJECT TO THE EXERCISE BY CONGRESS OF THE COMMERCE
POWER.  MISBRANDING A DRUG HELD FOR SALE AFTER SHIPMENT IN INTERSTATE
COMMERCE WAS HELD TO BE WITHIN THE COMMERCE POWER IN UNITED STATES V.
SULLIVAN, 332 U.S. 689.  THAT DECISION AND ITS PREDECESSORS SANCTION
WHAT IS DONE HERE. 

WE CONCLUDE THAT A RETAIL SALES SLIP IS AN "INVOICE" WITHIN THE
MEANING OF THE ACT AND ACCORDINGLY THE JUDGMENT OF THE COURT OF APPEALS
SETTING ASIDE THE PART OF THE CEASE-AND-DESIST ORDER WHICH REQUIRES
THIS RETAILER TO GIVE A PROPER "INVOICE" TO EACH PURCHASER IS
REVERSED. 

                                   II. 

SECOND, AS TO FALSE LABELING.  THE COMMISSION, AS WE HAVE NOTED,
FOUND THAT RESPONDENT HAD COMMITTED NUMEROUS VIOLATIONS OF THREE OF THE
SIX DISCLOSURE REQUIREMENTS CONTAINED IN SEC. 4(2) OF THE ACT, (FN7)
NOTING THAT THERE WAS NO EVIDENCE THAT IT HAD NOT COMPLIED WITH THE
OTHER THREE DISCLOSURE REQUIREMENTS OF SEC. 4(2).  THE CEASE-AND-DESIST
ORDER OF THE COMMISSION WAS HOWEVER DIRECTED AGAINST "MISBRANDING FUR
PRODUCTS BY:  1.  FAILING TO AFFIX LABELS TO FUR PRODUCTS SHOWING" EACH
OF THE SIX CATEGORIES OF INFORMATION REQUIRED BY SEC. 4(2).  THE COURT
OF APPEALS STRUCK FROM THE ORDER THE PROHIBITION WITH RESPECT TO THE
THREE CATEGORIES AS TO WHICH THERE WAS NO EVIDENCE OF VIOLATION. 

WE DO NOT BELIEVE THE COMMISSION ABUSED THE "WIDE DISCRETION" THAT IT
HAS IN A CHOICE OF A REMEDY "DEEMED ADEQUATE TO COPE WITH THE UNLAWFUL
PRACTICES" DISCLOSED BY THE RECORD.  JACOB SIEGEL CO. V. FEDERAL TRADE
COMM'N, 327 U.S. 608, 611.  IT IS NOT LIMITED TO PROHIBITING "THE
ILLEGAL PRACTICE IN THE PRECISE FORM" EXISTING IN THE PAST.  FEDERAL
TRADE COMM'N V. RUBEROID CO., 343 U.S. 470, 473.  THIS AGENCY, LIKE
OTHERS, MAY FASHION ITS RELIEF TO RESTRAIN "OTHER LIKE OR RELATED
UNLAWFUL ACTS."  LABOR BOARD V. EXPRESS PUB. CO., 312 U.S. 426, 436. 
THE PRACTICE OUTLAWED BY SEC. 4 IS "MISBRANDING."  THE DISCLOSURE
REQUIRED FOR A PROPERLY BRANDED GARMENT IS SPECIFIED.  THESE DISCLOSURE
REQUIREMENTS ARE SO CLOSELY INTERRELATED THAT THE COMMISSION MIGHT WELL
CONCLUDE THAT A RETAILER WHO FOR EXAMPLE FAILED TO DISCLOSE THAT THE
FUR WAS BLEACHED OR DYED MIGHT WELL DEFAULT WHEN IT CAME TO DISCLOSURE
OF THE FACT THAT USED FUR WAS CONTAINED IN THE GARMENT.  ONE CANNOT
GENERALIZE AS TO THE PROPER SCOPE OF THESE ORDERS.  IT DEPENDS ON THE
FACTS OF EACH CASE AND A JUDGMENT AS TO THE EXTENT TO WHICH A
PARTICULAR VIOLATOR SHOULD BE FENCED IN.  HERE, AS IN SHERMAN ACT
DECREES (LOCAL 167 V. UNITED STATES, 291 U.S. 293, 299; INTERNATIONAL
SALT CO. V. UNITED STATES, 332 U.S. 392, 400-401; INTERNATIONAL BOXING
CLUB V. UNITED STATES, 358 U.S. 242, 253), THE QUESTION OF THE EXTENT
TO WHICH RELATED ACTIVITY SHOULD BE ENJOINED IS ONE OF KIND AND
DEGREE.  WE SIT ONLY TO DETERMINE IF THE TRIER OF FACTS HAS EXERCISED
AN ALLOWABLE DISCRETION.  WHERE THE EPISODES OF MISBRANDING HAVE BEEN
SO EXTENSIVE AND SO SUBSTANTIAL IN NUMBER AS THEY WERE HERE, (FN8) WE
THINK IT PERMISSIBLE FOR THE COMMISSION TO CONCLUDE THAT LIKE AND
RELATED ACTS OF MISBRANDING SHOULD ALSO BE ENJOINED AS A PROPHYLACTIC
AND PREVENTIVE MEASURE. 

RESPONDENT OBJECTS TO THE WORDING OF THE CEASE-AND-DESIST ORDER
SAYING IT SUGGESTS THAT THE STORE HAS SOLD GARMENTS CONTRARY TO THE
DISCLOSURE REQUIREMENTS NOT FOUND TO HAVE BEEN VIOLATED HERE.  THE
COMMISSION BOWS TO THE SUGGESTION THAT PART A, PAR. 1 OF THE CEASE-AND
DESIST ORDER BE REPHRASED TO ENJOIN "MISBRANDING FUR PRODUCTS BY
FAILING TO AFFIX LABELS TO FUR PRODUCTS SHOWING EACH ELEMENT OF
INFORMATION REQUIRED BY THE ACT."  WE SO ORDER. 

ON THIS PHASE OF THE CASE THE JUDGMENT OF THE COURT OF APPEALS IS
ALSO REVERSED, THE CEASE-AND-DESIST ORDER TO BE REPHRASED AS WE HAVE
INDICATED.  IT IS SO ORDERED. 

FN1  SECTION 3 PROVIDES IN PART: 

"(A)  THE INTRODUCTION, OR MANUFACTURE FOR INTRODUCTION, INTO
COMMERCE, OR THE SALE, ADVERTISING OR OFFERING FOR SALE IN COMMERCE, OR
THE TRANSPORTATION OR DISTRIBUTION IN COMMERCE, OF ANY FUR PRODUCT
WHICH IS MISBRANDED OR FALSELY OR DECEPTIVELY ADVERTISED OR INVOICED,
WITHIN THE MEANING OF THIS ACT OR THE RULES AND REGULATIONS PRESCRIBED
UNDER SECTION 8(B), IS UNLAWFUL AND SHALL BE AN UNFAIR METHOD OF
COMPETITION, AND AN UNFAIR AND DECEPTIVE ACT OR PRACTICE, IN COMMERCE
UNDER THE FEDERAL TRADE COMMISSION ACT. 

"(B)  THE MANUFACTURE FOR SALE, SALE, ADVERTISING, OFFERING FOR SALE,
TRANSPORTATION OR DISTRIBUTION, OF ANY FUR PRODUCT WHICH IS MADE IN
WHOLE OR IN PART OF FUR WHICH HAS BEEN SHIPPED AND RECEIVED IN
COMMERCE, AND WHICH IS MISBRANDED OR FALSELY OR DECEPTIVELY ADVERTISED
OR INVOICED, WITHIN THE MEANING OF THIS ACT OR THE RULES AND
REGULATIONS PRESCRIBED UNDER SECTION 8(B), IS UNLAWFUL AND SHALL BE AN
UNFAIR METHOD OF COMPETITION, AND AN UNFAIR AND DECEPTIVE ACT OR
PRACTICE, IN COMMERCE UNDER THE FEDERAL TRADE COMMISSION ACT."    FN2

"FOR THE PURPOSES OF THIS ACT, A FUR PRODUCT SHALL BE CONSIDERED TO
BE MISBRANDED: 

"(1)  IF IT IS FALSELY OR DECEPTIVELY LABELED OR OTHERWISE FALSELY OR
DECEPTIVELY IDENTIFIED, OR IF THE LABEL CONTAINS ANY FORM OF
MISREPRESENTATION OR DECEPTION, DIRECTLY OR BY IMPLICATION, WITH
RESPECT TO SUCH FUR PRODUCT. 

"(2)  IF THERE IS NOT AFFIXED TO THE FUR PRODUCT A LABEL SHOWING IN
WORDS AND FIGURES PLAINLY LEGIBLE: 

"(A)  THE NAME OR NAMES (AS SET FORTH IN THE FUR PRODUCTS NAME GUIDE)
OF THE ANIMAL OR ANIMALS THAT PRODUCED THE FUR, AND SUCH QUALIFYING
STATEMENT AS MAY BE REQUIRED PURSUANT TO SECTION 7(C) OF THIS ACT. 

"(B)  THAT THE FUR PRODUCT CONTAINS OR IS COMPOSED OF USED FUR, WHEN
SUCH IS THE FACT. 

"(C)  THAT THE FUR PRODUCT CONTAINS OR IS COMPOSED OF BLEACHED, DYED,
OR OTHERWISE ARTIFICIALLY COLORED FUR, WHEN SUCH IS THE FACT. 

"(D)  THAT THE FUR PRODUCT IS COMPOSED IN WHOLE OR IN SUBSTANTIAL
PART OF PAWS, TAILS, BELLIES, OR WASTE FUR, WHEN SUCH IS THE FACT. 

"(E)  THE NAME, OR OTHER IDENTIFICATION ISSUED AND REGISTERED BY THE
COMMISSION, OF ONE OR MORE OF THE PERSONS WHO MANUFACTURE SUCH FUR
PRODUCT FOR INTRODUCTION INTO COMMERCE, INTRODUCE IT INTO COMMERCE,
SELL IT IN COMMERCE, ADVERTISE OR OFFER IT FOR SALE IN COMMERCE, OR
TRANSPORT OR DISTRIBUTE IT IN COMMERCE. 

"(F)  THE NAME OF THE COUNTRY OF ORIGIN OF ANY IMPORTED FURS USED IN
THE FUR PRODUCT. 

"(3)  IF THE LABEL REQUIRED BY PARAGRAPH (2)(A) OF THIS SECTION SETS
FORTH THE NAME OR NAMES OF ANY ANIMAL OR ANIMALS OTHER THAN THE NAME OR
NAMES PROVIDED FOR IN SUCH PARAGRAPH." 

FN3  THIS IS A REGISTER OF THE NAMES OF HAIR, FLEECE, AND FUR-BEARING
ANIMALS WHICH SEC. 7 OF THE ACT REQUIRES THE COMMISSION TO MAINTAIN. 

FN4  CF. UNITED STATES V. HUGHES, 116 F.2D 613, 616; PUGET SOUND
ELECTRIC R. CO. V. BENSON, 253 F. 710, 711; 2 SUTHERLAND, STATUTORY
CONSTRUCTION (3D ED. 1943), SEC. 4921. 

FN5  NOTE 1, SUPRA. 

FN6  SEE ED HAMILTON FURS, INC., 51 F.T.C. 186.  WE ARE ADVISED THAT
SINCE THAT CASE, DECIDED IN 1954, THE COMMISSION HAS ISSUED 137
COMPLAINTS CHARGING VIOLATIONS OF THE ACT INVOLVING FALSE AND DECEPTIVE
RETAIL INVOICING.  THERE ARE PRESENTLY OUTSTANDING 110 CEASE-AND-DESIST
ORDERS RELATING TO RETAIL INVOICING.  IN 92 OTHER CASES FURRIERS HAVE
AGREED TO DISCONTINUE FALSE AND DECEPTIVE RETAIL INVOICING. 

FN7  SEE NOTE 2, SUPRA. 

FN8  THE COMMISSION FOUND 12 INSTANCES OF FAILURE TO LABEL THE
PRODUCT WITH THE CORRECT NAME OF THE ANIMAL PRODUCING THE FUR, 15
INSTANCES OF FAILURE TO DISCLOSE THAT THE PRODUCT WAS BLEACHED, DYED OR
OTHERWISE ARTIFICIALLY COLORED, AND 58 INSTANCES OF FAILURE TO SHOW THE
COUNTRY OR ORIGIN OF IMPORTED FURS.  THERE WERE IN ADDITION 187 OTHER
VIOLATIONS OF THE RULES OF THE COMMISSION WHICH PROVIDE ADDITIONAL
LABELING REQUIREMENTS AND STANDARDS.  SEE 16 CFR, PT. 301. 
..END :




IRVIN V. DOWD 359 U.S. 394 


NO. 63.  ARGUED JANUARY 15, 1959 - DECIDED MAY 4, 1959 - 251 F.2D 548,
REVERSED. 


IN AN INDIANA STATE COURT, PETITIONER WAS CONVICTED OF MURDER AND
SENTENCED TO DEATH.  HE ESCAPED FROM CUSTODY AND, WHILE HE WAS STILL AT
LARGE, HIS COUNSEL MADE A TIMELY MOTION FOR A NEW TRIAL, SPECIFYING 415
GROUNDS OF ERROR CONSTITUTING AN ALLEGED DENIAL OF FEDERAL
CONSTITUTIONAL RIGHTS.  THE TRIAL COURT, IN DENYING THE MOTION, NOTED
THAT PETITIONER WAS AN ESCAPEE WHEN THE MOTION WAS MADE AND DECIDED. 
AFTER HIS RETURN TO CUSTODY, PETITIONER FILED A TIMELY APPEAL TO THE
STATE SUPREME COURT FROM THE JUDGMENT OF CONVICTION, ASSIGNING AS THE
ONLY ERROR THE DENIAL OF THE MOTION FOR A NEW TRIAL.  UNDER INDIANA
LAW, THE APPEAL PRESENTED THE STATE SUPREME COURT WITH TWO ISSUES: (1)
WHETHER THE MOTION FOR A NEW TRIAL WAS CORRECTLY DENIED BECAUSE
PETITIONER WAS AN ESCAPEE AT THE TIME IT WAS MADE, OR (2) WHETHER IT
WAS CORRECTLY DENIED BECAUSE THE TRIAL DID NOT, AS PETITIONER ALLEGED,
DEPRIVE HIM OF HIS CONSTITUTIONAL RIGHTS.  THE INDIANA SUPREME COURT
DISCUSSED BOTH ISSUES IN ITS OPINION AFFIRMING THE DENIAL OF THE MOTION
FOR A NEW TRIAL.  SUBSEQUENTLY, PETITIONER APPLIED TO A FEDERAL
DISTRICT COURT FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. SEC. 2241. 
THE DISTRICT COURT DISMISSED THE WRIT ON THE GROUND THAT PETITIONER HAD
NOT EXHAUSTED HIS STATE REMEDIES, AS REQUIRED BY 28 U.S.C. SEC. 2254,
AND THE COURT OF APPEALS AFFIRMED.  BOTH COURTS CONSIDERED THAT THE
JUDGMENT OF THE INDIANA SUPREME COURT RESTED ON A HOLDING THAT
PETITIONER'S MOTION FOR A NEW TRIAL WAS PROPERLY DENIED BECAUSE HE WAS
AN ESCAPEE AT THE TIME IT WAS MADE.  HELD: 

1.  THE OPINION OF THE INDIANA SUPREME COURT IS MORE REASONABLY READ
AS RESTING THE JUDGMENT ON THE HOLDING THAT THE PETITIONER'S
CONSTITUTIONAL CLAIM IS WITHOUT MERIT.  IN THIS WAY, THE STATE SUPREME
COURT DISCHARGED ITS OBLIGATION TO "GUARD, ENFORCE, AND PROTECT EVERY
RIGHT GRANTED OR SECURED BY THE CONSTITUTION OF THE UNITED STATES." 
ROBB V. CONNOLLY, 111 U.S. 624, 637.  PP. 403-404. 

2.  THE DOCTRINE OF EXHAUSTION OF STATE REMEDIES, WHICH WAS CODIFIED
IN 28 U.S.C. SEC.  2254, DOES NOT BAR RESORT TO FEDERAL HABEAS CORPUS
IF THE PETITIONER HAS OBTAINED A DECISION ON HIS CONSTITUTIONAL CLAIMS
FROM THE HIGHEST COURT OF A STATE, EVEN THOUGH, AS HERE, THAT COURT
COULD HAVE BASED ITS DECISION ON ANOTHER GROUND.  BROWN V. ALLEN, 344
U.S. 443, DISTINGUISHED.  PP. 404-406. 

3.  THE QUESTION IS NOT REACHED WHETHER FEDERAL HABEAS CORPUS WOULD
HAVE BEEN AVAILABLE TO PETITIONER HAD THE INDIANA SUPREME COURT RESTED
ITS DECISION ON THE ESCAPE GROUND.  P. 406. 

4.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT, WHICH MAY DECIDE THE MERITS OF PETITIONER'S
CONSTITUTIONAL CLAIM OR REMAND TO THE DISTRICT COURT FOR FURTHER
CONSIDERATION OF THAT CLAIM.  PP. 406-407. 

IRVIN V. DOWD, WARDEN, INDIANA STATE PRISON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.  MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS HABEAS CORPUS PROCEEDING IN THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF INDIANA UNDER 28 U.S.C. SEC. 2241,
(FN1) CLAIMING THAT HIS CONVICTION FOR MURDER IN THE CIRCUIT COURT OF
GIBSON COUNTY, INDIANA, WAS OBTAINED IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  THE DISTRICT COURT DISMISSED THE WRIT, 153 F. SUPP. 531,
UNDER THE PROVISION OF 28 U.S.C. SEC. 2254 THAT HABEAS CORPUS "SHALL
NOT BE GRANTED UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE
REMEDIES AVAILABLE IN THE COURTS OF THE STATE  ...  ."  (FN2)  THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED.  251 F.2D 548.  WE
GRANTED CERTIORARI, 356 U.S. 948.  (FN3) 

THE CONSTITUTIONAL CLAIM ARISES IN THIS WAY.  SIX MURDERS WERE
COMMITTED IN THE VICINITY OF EVANSVILLE, INDIANA, TWO IN DECEMBER 1954,
AND FOUR IN MARCH 1955.  THE CRIMES, EXTENSIVELY COVERED BY NEWS MEDIA
IN THE LOCALITY, AROUSED GREAT EXCITEMENT AND INDIGNATION THROUGHOUT
VANDERBURGH COUNTY, WHERE EVANSVILLE IS LOCATED, AND ADJOINING GIBSON
COUNTY, A RURAL COUNTY OF APPROXIMATELY 30,000 INHABITANTS.  THE
PETITIONER WAS ARRESTED ON APRIL 8, 1955.  SHORTLY THEREAFTER, THE
PROSECUTOR OF VANDERBURGH COUNTY AND EVANSVILLE POLICE OFFICIALS ISSUED
PRESS RELEASES, WHICH WERE INTENSIVELY PUBLICIZED, STATING THAT THE
PETITIONER HAD CONFESSED TO THE SIX MURDERS.  THE VANDERBURGH COUNTY
GRAND JURY SOON INDICTED THE PETITIONER FOR THE MURDER WHICH RESULTED
IN HIS CONVICTION.  THIS WAS THE MURDER OF WHITNEY WESLEY KERR
ALLEGEDLY COMMITTED IN VANDERBURGH COUNTY ON DECEMBER 23, 1954. 
COUNSEL APPOINTED TO DEFEND PETITIONER IMMEDIATELY SOUGHT A CHANGE OF
VENUE FROM VANDERBURGH COUNTY, WHICH WAS GRANTED, BUT TO ADJOINING
GIBSON COUNTY.  ALLEGING THAT THE WIDESPREAD AND INFLAMMATORY PUBLICITY
HAD ALSO HIGHLY PREJUDICED THE INHABITANTS OF GIBSON COUNTY AGAINST THE
PETITIONER, COUNSEL, ON OCTOBER 29, 1955, SOUGHT ANOTHER CHANGE OF
VENUE, FROM GIBSON COUNTY TO A COUNTY SUFFICIENTLY REMOVED FROM THE
EVANSVILLE LOCALITY THAT A FAIR TRIAL WOULD NOT BE PREJUDICED.  THE
MOTION WAS DENIED, APPARENTLY BECAUSE THE PERTINENT INDIANA STATUTE
ALLOWS ONLY A SINGLE CHANGE OF VENUE.  (FN4) 

THE VOIR DIRE EXAMINATIONS OF PROSPECTIVE JURORS BEGAN IN GIBSON
COUNTY ON NOVEMBER 14, 1955.  THE AVERMENTS AS TO THE PREJUDICE BY
WHICH THE TRIAL WAS ALLEGEDLY ENVIRONED FIND CORROBORATION IN THE FACT
THAT FROM THE FIRST DAY OF THE VOIR DIRE CONSIDERABLE DIFFICULTY WAS
EXPERIENCED IN SELECTING JURORS WHO DID NOT HAVE FIXED OPINIONS THAT
THE PETITIONER WAS GUILTY.  THE PETITIONER'S COUNSEL THEREFORE RENEWED
HIS MOTION FOR A CHANGE OF VENUE, WHICH MOTION WAS DENIED.  HE RENEWED
THE MOTION A SECOND TIME, ON DECEMBER 7, 1955, RECITING IN HIS MOVING
PAPERS:  "IN THE VOIR DIRE EXAMINATION OF 355 JURORS CALLED IN THIS
CASE TO QUALIFY AS JURORS 233 HAVE EXPRESSED AND FORMED THEIR OPINION
AS STATED IN SAID VOIR DIRE, THAT THE DEFENDANT IS GUILTY  ... ." 
AGAIN THE MOTION WAS DENIED.  ALTERNATIVELY, ON EACH OF EIGHT DAYS OVER
THE FOUR WEEKS REQUIRED TO SELECT A JURY, COUNSEL SOUGHT A CONTINUANCE
OF THE TRIAL ON THE GROUND THAT A FAIR TRIAL AT THAT TIME WAS NOT
POSSIBLE IN THE PREVAILING ATMOSPHERE OF HOSTILITY TOWARD THE
PETITIONER.  ALL OF THE MOTIONS FOR A CONTINUANCE WERE DENIED.  THE
STATE PROSECUTOR, IN A RADIO BROADCAST DURING THE SECOND WEEK OF THE
VOIR DIRE EXAMINATION, STATED THAT "THE UNUSUAL COVERAGE GIVEN TO THE
CASE BY THE NEWSPAPERS AND RADIO" CAUSED "TROUBLE IN GETTING A JURY OF
PEOPLE WHO ARE UNBIASED AND UNPREJUDICED IN THE CASE." 

THE PETITIONER'S COUNSEL EXHAUSTED ALL 20 OF HIS PEREMPTORY
CHALLENGES, AND WHEN 12 JURORS WERE ULTIMATELY ACCEPTED BY THE COURT
ALSO UNSUCCESSFULLY CHALLENGED ALL OF THEM FOR ALLEGED BIAS AND
PREJUDICE AGAINST THE PETITIONER, COMPLAINING PARTICULARLY THAT FOUR OF
THE JURORS, IN THEIR VOIR DIRE EXAMINATIONS, STATED THAT THEY HAD AN
OPINION THAT PETITIONER WAS GUILTY OF THE MURDER CHARGED.   (FN5) 

ALSO, AT THE TRIAL, THE STATE'S PROSECUTING ATTORNEY TOOK THE STAND
AS PART OF HIS PRESENTATION OF THE STATE'S CASE, AND OVER PETITIONER'S
OBJECTION WAS ALLOWED TO TESTIFY THAT THE PETITIONER, FIVE DAYS AFTER
HIS ARREST, ON APRIL 13, 1955, HAD ORALLY CONFESSED THE MURDER OF KERR
TO HIM.  THE PROSECUTING ATTORNEY WAS ALSO PERMITTED IN SUMMATION,
AGAIN OVER PETITIONER'S OBJECTION, TO VOUCH HIS OWN TESTIMONY BY
COMMENTING TO THE JURY, "I TESTIFIED MYSELF WHAT WAS TOLD ME." 

THE OPINIONS OF THE INDIANA SUPREME COURT AND THE DISTRICT COURT HELD
THE CONSTITUTIONAL CLAIM TO BE WITHOUT MERIT.  IRVIN V. STATE, 236 IND.
384, 392-394, 139 N.E.2D 898, 902; IRVIN V. DOWD, 153 F. SUPP. 531, 535
539.  ON THE OTHER HAND, CHIEF JUDGE DUFFY OF THE COURT OF APPEALS,
CONCURRING IN THE AFFIRMANCE OF THE DISMISSAL BY THE DISTRICT COURT,
REACHED A CONTRARY CONCLUSION:  "IRVIN WAS NOT ACCORDED DUE PROCESS OF
LAW IN THE TRIAL WHICH RESULTED IN HIS CONVICTION AND DEATH SENTENCE. 
IN MY JUDGMENT, HE DID NOT RECEIVE A FAIR TRIAL BECAUSE SOME OF THE
JURY HAD PRECONCEIVED OPINIONS AS TO DEFENDANT'S GUILT, AND ALSO
BECAUSE OF THE CONDUCT OF THE PROSECUTING ATTORNEY."  251 F.2D 548,
554. 

THE GIBSON COUNTY JURY RETURNED ITS VERDICT ON DECEMBER 20, 1955, AND
ASSESSED THE DEATH PENALTY.  INDIANA LAW ALLOWS 30 DAYS FROM THE DATE
OF THE VERDICT WITHIN WHICH TO FILE A MOTION FOR A NEW TRIAL IN THE
TRIAL COURT.  BURNS' IND. STAT. ANN., 1956 REPLACEMENT VOL., SEC. 9
1903.  THE PETITIONER'S COUNSEL, ON JANUARY 19, 1956, THE 30TH DAY,
FILED SUCH A MOTION SPECIFYING 415 GROUNDS OF ERROR CONSTITUTING THE
ALLEGED DENIAL OF CONSTITUTIONAL RIGHTS.  HOWEVER, THE PETITIONER HAD
ESCAPED FROM CUSTODY THE NIGHT BEFORE, JANUARY 18, 1956, AND ON JANUARY
23, 1956, THE TRIAL COURT OVERRULED THE MOTION, NOTING THAT THE
PETITIONER HAD BEEN AN ESCAPEE WHEN THE MOTION WAS FILED AND WAS STILL
AT LARGE.  THE PETITIONER WAS CAPTURED IN CALIFORNIA ABOUT THREE WEEKS
LATER AND, ON FEBRUARY 17, 1956, WAS CONFINED IN THE INDIANA STATE
PRISON. 

UNDER INDIANA LAW THE DENIAL OF THE NEW TRIAL WAS NOT APPEALABLE, BUT
WAS REVIEWABLE BY THE INDIANA SUPREME COURT ONLY IF ASSIGNED AS ERROR
IN THE EVENT OF AN APPEAL FROM THE JUDGMENT OF CONVICTION.  THE STATE
SUPREME COURT HAS HELD: 

"THE STATUTE PROVIDING FOR APPEAL DOES NOT AUTHORIZE AN APPEAL FROM
EVERY RULING WHICH A COURT MAY MAKE AGAINST A DEFENDANT IN A CRIMINAL
ACTION, BUT ONLY AUTHORIZES AN APPEAL 'FROM ANY JUDGMENT  ...  AGAINST
HIM,' AND PROVIDES FOR REVIEW, UPON SUCH APPEAL, OF DECISIONS AND
RULINGS OF THE COURT MADE IN THE PROGRESS OF THE CASE.  THIS COURT HAS
CONSTRUED THE STATUTE AS AUTHORIZING AN APPEAL ONLY FROM A FINAL
JUDGMENT IN A CRIMINAL ACTION.  THE ACTION OF A TRIAL COURT IN
OVERRULING A MOTION FOR A NEW TRIAL MAY BE REVIEWED UPON AN APPEAL FROM
A JUDGMENT OF CONVICTION RENDERED AGAINST A DEFENDANT, BUT THE
OVERRULING OF A MOTION FOR A NEW TRIAL MUST BE ASSIGNED AS ERROR.  IN
SUCH CASE THE APPEAL IS FROM THE JUDGMENT OF CONVICTION AND NOT FROM
THE RULING UPON THE MOTION FOR A NEW TRIAL.  THE OVERRULING OF A MOTION
FOR A NEW TRIAL DOES NOT CONSTITUTE A JUDGMENT AND AN APPEAL DOES NOT
LIE FROM THE COURT'S ACTION IN OVERRULING SUCH MOTION."  SELKE V.
STATE, 211 IND. 232, 234, 6 N.E.2D 570, 571. 

THE JUDGMENT OF CONVICTION IMPOSING THE DEATH SENTENCE WAS ENTERED
JANUARY 9, 1956.  THE PETITIONER WAS ENTITLED TO APPEAL, AS A MATTER OF
RIGHT, FROM THAT JUDGMENT, PROVIDED, IN COMPLIANCE WITH A STATE SUPREME
COURT RULE, (FN6) THE APPEAL WAS PERFECTED BY FILING WITH THE CLERK OF
THE SUPREME COURT A TRANSCRIPT OF THE TRIAL RECORD AND AN ASSIGNMENT OF
ERRORS WITHIN 90 DAYS OF THE JUDGMENT.  THE SUPREME COURT MAY, IN ITS
DISCRETION, EXTEND THE TIME ON PROPER MOTION MADE WITHIN THE 90-DAY
PERIOD.  THE QUESTIONS BEFORE THE SUPREME COURT ARE THOSE RAISED BY THE
APPELLANT IN HIS ASSIGNMENT OF ERRORS. 

ON MARCH 22, 1956, THE PETITIONER APPLIED FOR AN EXTENSION OF TIME
WITHIN WHICH TO FILE THE TRIAL TRANSCRIPT AND HIS ASSIGNMENT OF
ERRORS.  THIS WAS AFTER HE WAS RETURNED TO THE CUSTODY OF THE STATE AND
WELL WITHIN 90 DAYS FROM JANUARY 9, 1956, THE DATE OF THE JUDGMENT OF
CONVICTION.  WE WERE ADVISED ON ORAL ARGUMENT THAT THE STATE OBJECTED
TO THIS MOTION "BECAUSE HE (PETITIONER) HAD ESCAPED," AND A HEARING WAS
HELD ON THE OBJECTION BY THE STATE SUPREME COURT.  PETITIONER'S MOTION
WAS GRANTED AND THE TIME WAS EXTENDED TO JUNE 1, 1956.  THE ASSIGNMENT
OF ERRORS, TIMELY FILED WITH THE TRIAL TRANSCRIPT OF SOME 5,000 PAGES,
ASSIGNED ONLY ONE GROUND OF ERROR - THAT "THE TRIAL COURT ERRED IN
OVERRULING APPELLANT'S MOTION FOR NEW TRIAL."  THE PETITIONER'S BRIEF
OF OVER 700 PAGES OPENED BY ADVISING THE STATE SUPREME COURT THAT
"UNDER THIS SINGLE ASSIGNMENT OF ERROR, THE APPELLANT HAS COMBINED ALL
ERRORS ALLEGED TO HAVE BEEN COMMITTED PRIOR TO THE FILING OF THE MOTION
FOR A NEW TRIAL."  IN SHORT, THE FORM OF THE ASSIGNMENT WAS A SHORTHAND
WAY OF SPECIFYING THE 415 GROUNDS STATED IN THE MOTION FOR NEW TRIAL AS
CONSTITUTING THE CLAIMED DENIAL OF CONSTITUTIONAL RIGHTS.  INDEED THE
ONLY ARGUEMNTS MADE IN THE LENGTHY BRIEF RELATED TO THE CONSTITUTIONAL
CLAIM.  THE STATE'S BRIEF DEVOTED SOME 70 PAGES TO ANSWERING THESE
CONTENTIONS, AND IN 7 ADDITIONAL PAGES ARGUED THAT IN ANY EVENT THE
CIRCUIT COURT HAD NOT ERRED IN DENYING THE MOTION FOR A NEW TRIAL
BECAUSE THE PETITIONER WAS AN ESCAPEE AT THE TIME IT WAS FILED AND
DECIDED. 

THE CASE BEFORE THE INDIANA SUPREME COURT WAS THUS AN APPEAL
PERFECTED IN FULL COMPLIANCE WITH INDIANA PROCEDURE; THEREFORE, THE
COURT WAS REQUIRED UNDER INDIANA LAW TO PASS ON THE MERITS OF THE
PETITIONER'S ASSIGNMENT OF ERROR.  THAT THE ASSIGNMENT OF ERROR WAS
SUFFICIENT TO PRESENT THE CONSTITUTIONAL CLAIM IS EVIDENT FROM THE
COURT'S ACCEPTANCE OF IT AS THE BASIS FOR CONSIDERING THE 415 GROUNDS
OF ALLEGED ERROR CONSTITUTING THAT CLAIM.  HOWEVER, UNDER THE SINGLE
ASSIGNMENT OF ERROR, THE JUDGMENT OF CONVICTION COULD BE AFFIRMED BY
THE STATE SUPREME COURT IF, FOR ANY REASON FINDING SUPPORT IN THE
RECORD, THE MOTION FOR A NEW TRIAL WAS PROPERLY OVERRULED.  THE STATE
ARGUED THAT THE OVERRULING SHOULD BE UPHELD ON EITHER OF TWO GROUNDS:
ONE, BECAUSE THE PETITIONER WAS AN ESCAPEE AT THE TIME THE MOTION WAS
MADE AND DECIDED, AND, TWO, BECAUSE THE TRIAL ITSELF WAS FAIR AND
WITHOUT ERROR.  PETITIONER'S APPEAL CLEARLY RAISED BOTH OF THESE ISSUES
AND THE INDIANA SUPREME COURT DISCUSSED BOTH IN ITS OPINION. 

WE THINK THAT THE DISTRICT COURT AND COURT OF APPEALS ERRED IN
CONCLUDING THAT THE STATE SUPREME COURT DECISION RESTED ON THE GROUND
THAT THE PETITIONER WAS AN ESCAPEE WHEN HIS MOTION FOR A NEW TRIAL WAS
MADE AND DECIDED.  ON THE CONTRARY, THE OPINION TO US IS MORE
REASONABLY TO BE READ AS RESTING THE JUDGMENT ON THE HOLDING THAT THE
PETITIONER'S CONSTITUTIONAL CLAIM IS WITHOUT MERIT.  AS WE HAVE SHOWN,
UNDER THE STATE PROCEDURE, THE STATE SUPREME COURT COULD HAVE RESTED
ITS DECISION SOLELY ON THE FEDERAL CONSTITUTIONAL CLAIM.  (FN7)  THIS,
WE THINK, IS WHAT THE INDIANA HIGH COURT DID.  THE OPINION DISCUSSES
BOTH ISSUES.  THE DISCUSSION OF THE ESCAPE ISSUE CONCLUDES WITH THE
STATEMENT, "NO ERROR COULD HAVE BEEN COMMITTED IN OVERRULING THE MOTION
FOR A NEW TRIAL UNDER THE CIRCUMSTANCES."  236 IND., AT 392, 139
N.E.2D, AT 902.  BUT THE OPINION PROCEEDS:  "OUR DECISION ON THE POINT
UNDER EXAMINATION MAKES IT UNNECESSARY FOR US TO CONSIDER THE OTHER
CONTENTIONS OF THE APPELLANT; HOWEVER, BECAUSE OF THE FINALITY OF THE
SENTENCE IN THE CASE WE HAVE REVIEWED THE EVIDENCE TO SATISFY OURSELVES
THAT THERE IS NO MISCARRIAGE OF JUSTICE IN THE CASE."  236 IND., AT 392
393, 139 N.E.2D, AT 902.  THE CONCLUSION REACHED AFTER DISCUSSION OF
THE MERITS IS:  "IT DOES NOT APPEAR FROM THE RECORD AND ARGUMENT HAD,
THAT THE APPELLANT WAS DENIED DUE PROCESS OF LAW UNDER THE FOURTEENTH
AMENDMENT  ...  ."  236 IND., AT 394, 139 N.E.2D, AT 902.  THE COURT'S
STATEMENT THAT ITS CONCLUSION ON THE ESCAPE POINT MADE IT "UNNECESSARY"
TO CONSIDER THE CONSTITUTIONAL CLAIM WAS NOT A HOLDING THAT THE
JUDGMENT WAS RESTED ON THAT GROUND.  RATHER THE COURT PROCEEDED TO
DETERMINE THE MERITS "BECAUSE OF THE FINALITY OF THE SENTENCE" AND "TO
SATISFY OURSELVES THAT THERE IS NO MISCARRIAGE OF JUSTICE."  IN THIS
WAY, IN OUR VIEW, THE STATE SUPREME COURT DISCHARGED THE OBLIGATION
WHICH RESTS UPON "THE STATE COURTS, EQUALLY WITH THE COURTS OF THE
UNION,  ...  TO GUARD, ENFORCE, AND PROTECT EVERY RIGHT GRANTED OR
SECURED BY THE CONSTITUTION OF THE UNITED STATES  ... ."  ROBB V.
CONNOLLY, 111 U.S. 624, 637.  WE THUS BELIEVE THAT THE OPINION IS TO BE
READ AS RESTED UPON THE STATE SUPREME COURT'S CONSIDERED CONCLUSION
THAT THE CONVICTION RESULTING IN THE DEATH SENTENCE WAS NOT OBTAINED IN
DISREGARD OF THE PROTECTIONS SECURED TO THE PETITIONER BY THE
CONSTITUTION OF THE UNITED STATES. 

IN THIS POSTURE, 28 U.S.C. SEC. 2254 DOES NOT BAR THE PETITIONER'S
RESORT TO FEDERAL HABEAS CORPUS.  THE DOCTRINE OF EXHAUSTION OF STATE
REMEDIES IN FEDERAL HABEAS CORPUS WAS JUDICIALLY FASHIONED AFTER THE
CONGRESS, BY THE ACT OF FEBRUARY 5, 1867, GREATLY EXPANDED THE HABEAS
CORPUS JURISDICTION OF THE FEDERAL COURTS TO EMBRACE "ALL CASES WHERE
ANY PERSON MAY BE RESTRAINED OF HIS ...  LIBERTY IN VIOLATION OF THE
CONSTITUTION, OR OF ANY TREATY OR LAW OF THE UNITED STATES  ...  ." 
14 STAT. 385.  ALTHOUGH THE STATUTE HAS BEEN RE-ENACTED WITH MINOR
CHANGES AT VARIOUS TIMES THE SWEEP OF THE JURISDICTION GRANTED BY THIS
BROAD PHRASING HAS REMAINED UNCHANGED.  (FN8)    SINCE THERE INHERED IN
THIS EXPANDED GRANT OF POWER, BESIDE THE ADDED BURDEN ON THE FEDERAL
COURTS, THE POTENTIALITY OF CONFLICT BETWEEN FEDERAL AND STATE COURTS,
THIS COURT, STARTING WITH THE DECISION IN EX PARTE ROYALL, 117 U.S.
241, DEVELOPED THE DOCTRINE OF EXHAUSTION OF STATE REMEDIES, A "RULE
...  THAT THE  ...  COURTS OF THE UNITED STATES, WHILE THEY HAVE POWER
TO GRANT WRITS OF HABEAS CORPUS FOR THE PURPOSE OF INQUIRING INTO THE
CAUSE OF RESTRAINT OF LIBERTY OF ANY PERSON IN CUSTODY UNDER THE
AUTHORITY OF A STATE IN VIOLATION OF THE CONSTITUTION,  ...  YET,
EXCEPT IN CASES OF PECULIAR URGENCY, OUGHT NOT TO EXERCISE THAT
JURISDICTION BY A DISCHARGE OF THE PERSON IN ADVANCE OF A FINAL
DETERMINATION OF HIS CASE IN THE COURTS OF THE STATE,  ...  "  TINSLEY
V. ANDERSON, 171 U.S. 101, 104-105.  THE PRINCIPLES ARE NOW REASONABLY
CLEAR.  "ORDINARILY AN APPLICATION FOR HABEAS CORPUS BY ONE DETAINED
UNDER A STATE COURT JUDGMENT OF CONVICTION FOR CRIME WILL BE
ENTERTAINED BY A FEDERAL COURT ONLY AFTER ALL STATE REMEDIES AVAILABLE,
INCLUDING ALL APPELLATE REMEDIES IN THE STATE COURTS AND IN THIS COURT
BY APPEAL OR WRIT OF CERTIORARI, HAVE BEEN EXHAUSTED."  EX PARTE HAWK,
321 U.S. 114, 116-117.  THE PRINCIPLES OF THE DOCTRINE HAVE BEEN
EMBODIED IN 28 U.S.C. SEC. 2254 WHICH WAS ENACTED BY CONGRESS TO CODIFY
THE EXISTING HABEAS CORPUS PRACTICE.  SEE DARR V. BURFORD, 339 U.S.
200, 210-214; YOUNG V. RAGEN, 337 U.S. 235, 238, NOTE 1; BROWN V.
ALLEN, 344 U.S. 443, 447-450.   AS IS STATED IN THE REVISER'S NOTE:
"THIS NEW SECTION IS DECLARATORY OF EXISTING LAW AS AFFIRMED BY THE
SUPREME COURT."  (FN9) 

THE PETITIONER IN THIS CASE PLAINLY INVOKED "ALL STATE REMEDIES
AVAILABLE" AND OBTAINED "A FINAL DETERMINATION" OF HIS CONSTITUTIONAL
CLAIM FROM THE INDIANA SUPREME COURT.  CERTAINLY BROWN V. ALLEN, 344
U.S. 443, RELIED UPON BY THE COURT OF APPEALS, DOES NOT BEAR ON HIS
SITUATION.  IN THAT CASE THE TWO PETITIONERS IN DANIELS V. ALLEN HAD 60
DAYS IN WHICH TO MAKE AND SERVE A STATEMENT OF THE CASE ON APPEAL FROM
A CONVICTION IN THE STATE TRIAL COURT.  COUNSEL FAILED TO SERVE THIS
STATEMENT UNTIL 61 DAYS HAD EXPIRED, AND THE TRIAL JUDGE STRUCK THE
APPEAL AS OUT OF TIME.  THE PERTINENT NORTH CAROLINA RULE PROVIDED THAT
THE TIME LIMITATION WAS "MANDATORY," AND PRECLUDED AN APPEAL TO THE
STATE SUPREME COURT.  THE STATE SUPREME COURT DISMISSED PETITIONERS'
ATTEMPTED APPEAL ON THE GROUND THAT NO APPEAL HAD BEEN FILED.  THIS
COURT HELD THAT UNDER THE DOCTRINE OF EXHAUSTION OF STATE REMEDIES
HABEAS CORPUS OUGHT NOT TO BE GRANTED SINCE PETITIONERS HAD SOUGHT TOO
LATE TO INVOKE NORTH CAROLINA'S "ADEQUATE AND EASILY-COMPLIED-WITH
METHOD OF APPEAL."  344 U.S., AT 485.  IN CONTRAST, THE PETITIONER'S
APPEAL FROM HIS JUDGMENT OF CONVICTION TO THE INDIANA SUPREME COURT
RAISING THE CONSTITUTIONAL CLAIM WAS TIMELY AND WAS ACCEPTED BY THAT
COURT AS FULLY COMPLYING WITH ALL PERTINENT PROCEDURAL REQUIREMENTS. 
FURTHERMORE, THE STATE SUPREME COURT DID REACH AND DECIDE PETITIONER'S
FEDERAL CONSTITUTIONAL CLAIM. 

WE THEREFORE HOLD THAT THE CASE IS GOVERNED BY THE PRINCIPLE THAT THE
DOCTRINE OF EXHAUSTION OF STATE REMEDIES EMBODIED IN 28 U.S.C. SEC.
2254 DOES NOT BAR RESORT TO FEDERAL HABEAS CORPUS IF THE PETITIONER HAS
OBTAINED A DECISION ON HIS CONSTITUTIONAL CLAIMS FROM THE HIGHEST COURT
OF THE STATE, EVEN THOUGH, AS HERE, THAT COURT COULD HAVE BASED ITS
DECISION ON ANOTHER GROUND.  WADE V. MAYO, 334 U.S. 672.  IN THIS VIEW,
WE DO NOT REACH THE QUESTION WHETHER FEDERAL HABEAS CORPUS WOULD HAVE
BEEN AVAILABLE TO THE PETITIONER HAD THE INDIANA SUPREME COURT RESTED
ITS DECISION ON THE ESCAPE GROUND. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT.  THE COURT OF APPEALS MAY DECIDE THE MERITS OF
PETITIONER'S CONSTITUTIONAL CLAIM, OR REMAND TO THE DISTRICT COURT FOR
FURTHER CONSIDERATION OF THAT CLAIM, AS THE COURT OF APPEALS MAY
DETERMINE.  IT IS SO ORDERED. 

FN1  SECTION 2241 PROVIDES IN PERTINENT PART: 

"(A)  WRITS OF HABEAS CORPUS MAY BE GRANTED BY THE  ...  DISTRICT
COURTS  ...  WITHIN THEIR RESPECTIVE JURISDICTIONS. 

     *         *         *         *       * 

"(C)  THE WRIT OF HABEAS CORPUS SHALL NOT BE EXTENDED TO A PRISONER
UNLESS  ...  . 

     *         * *         *         * 

"(3)  HE IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS OR
TREATIES OF THE UNITED STATES ...  ."  FN2  THE FULL TEXT OF SEC. 2254
IS AS FOLLOWS: 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PERSON IN
CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT BE GRANTED
UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER AN
ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER. 

"AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

FN3  THE CASE WAS HERE PREVIOUSLY ON IRVIN'S PETITION SEEKING DIRECT
REVIEW ON CERTIORARI TO THE INDIANA SUPREME COURT FROM THAT COURT'S
DECISION IN IRVIN V. STATE, 236 IND. 384, 139 N.E.2D 898.  CERTIORARI
WAS DENIED "WITHOUT PREJUDICE TO FILING FOR FEDERAL HABEAS CORPUS AFTER
EXHAUSTING STATE REMEDIES."  353 U.S. 948.  THE INDIANA ASSISTANT
ATTORNEY GENERAL, ON THE ORAL ARGUMENT HERE, ADVISED THAT THERE WAS NOT
THEN, NOR IS THERE NOW, ANY STATE PROCEDURE AVAILABLE FOR THE
PETITIONER TO OBTAIN A DETERMINATION OF HIS CONSTITUTIONAL CLAIM. 

FN4  BURNS' IND. STAT. ANN., 1956 REPLACEMENT VOL., SEC. 9-1305,
PROVIDES: 

"WHEN AFFIDAVITS FOR A CHANGE OF VENUE ARE FOUNDED UPON EXCITEMENT OR
PREJUDICE IN THE COUNTY AGAINST THE DEFENDANT, THE COURT, IN ALL CASES
NOT PUNISHABLE BY DEATH, MAY, IN ITS DISCRETION, AND IN ALL CASES
PUNISHABLE BY DEATH, SHALL GRANT A CHANGE OF VENUE TO THE MOST
CONVENIENT COUNTY.  THE CLERK MUST THEREUPON IMMEDIATELY MAKE A
TRANSCRIPT OF THE PROCEEDINGS AND ORDERS OF COURT, AND, HAVING SEALED
UP THE SAME WITH THE ORIGINAL PAPERS, SHALL DELIVER THEM TO THE
SHERIFF, WHO MUST, WITHOUT DELAY, DEPOSIT THEM IN THE CLERK'S OFFICE OF
THE PROPER COUNTY, AND MAKE HIS RETURN ACCORDINGLY:  PROVIDED, HOWEVER,
THAT ONLY ONE (1) CHANGE OF VENUE FROM THE JUDGE AND ONLY ONE (1)
CHANGE FROM THE COUNTY SHALL BE GRANTED." 

FN5  THE TRIAL JUDGE QUALIFIED THE JURORS IN QUESTION UNDER THE
AUTHORITY OF BURNS' IND.  STAT. ANN., 1956 REPLACEMENT VOL., SEC. 9
1504, WHICH PROVIDES: 

"THE FOLLOWING SHALL BE GOOD CAUSES FOR CHALLENGE TO ANY PERSON
CALLED AS A JUROR IN ANY CRIMINAL TRIAL: 

     *         *         *         *         * 

"SECOND.  THAT HE HAS FORMED OR EXPRESSED AN OPINION AS TO THE GUILT
OR INNOCENCE OF THE DEFENDANT.  BUT IF A PERSON CALLED AS A JUROR
STATES THAT HE HAS FORMED OR EXPRESSED AN OPINION AS TO THE GUILT OR
INNOCENCE OF THE DEFENDANT, THE COURT OF THE PARTIES SHALL THEREUPON
PROCEED TO EXAMINE SUCH JUROR ON OATH AS TO THE GROUND OF SUCH OPINION;
AND IF IT APPEARS TO HAVE BEEN FOUNDED UPON READING NEWSPAPER
STATEMENTS, COMMUNICATIONS, COMMENTS OR REPORTS, OR UPON RUMORS OR
HEARSAY, AND NOT UPON CONVERSATION WITH WITNESSES OF THE TRANSACTION,
OR READING REPORTS OF THEIR TESTIMONY, OR HEARING THEM TESTIFY, AND THE
JUROR STATES ON OATH THAT HE FEELS ABLE, NOTWITHSTANDING SUCH OPINION,
TO RENDER AN IMPARTIAL VERDICT UPON THE LAW AND EVIDENCE, THE COURT, IF
SATISFIED THAT HE IS IMPARTIAL AND WILL RENDER SUCH VERDICT, MAY, IN
ITS DISCRETION, ADMIT HIM AS COMPETENT TO SERVE IN SUCH CASE." 

FN6  RULE 2-2 OF THE SUPREME COURT OF INDIANA, BURNS' IND. STAT.
ANN., 1946 REPLACEMENT VOL. 2, PT. I, P. 8, PROVIDES: 

"TIME FOR APPEAL OR REVIEW.  - IN ALL APPEALS AND REVIEWS THE
ASSIGNMENT OF ERRORS AND TRANSCRIPT OF THE RECORD MUST BE FILED IN THE
OFFICE OF THE CLERK OF THE SUPREME COURT WITHIN 90 DAYS FROM THE DATE
OF THE JUDGMENT OR THE RULING ON THE MOTION FOR A NEW TRIAL, UNLESS THE
STATUTE UNDER WHICH THE APPEAL OR REVIEW IS TAKEN FIXES A SHORTER TIME,
IN WHICH LATTER EVENT THE STATUTE SHALL CONTROL.  IF WITHIN THE TIME
FOR FILING THE ASSIGNMENT OF ERRORS AND TRANSCRIPT, AS ABOVE PROVIDED,
IT IS MADE TO APPEAR TO THE COURT TO WHICH AN APPEAL OR REVIEW IS
SOUGHT, NOTICE HAVING BEEN GIVEN TO THE ADVERSE PARTIES, THAT
NOTWITHSTANDING DUE DILIGENCE ON THE PART OF THE PARTIES SEEKING AN
APPEAL OR REVIEW, IT HAS BEEN AND WILL BE IMPOSSIBLE TO PROCURE A BILL
OF EXCEPTIONS OR TRANSCRIPT TO PERMIT THE FILING OF THE TRANSCRIPT
WITHIN THE TIME ALLOWED, THE COURT TO WHICH THE APPEAL OR REVIEW IS
SOUGHT MAY, IN ITS DISCRETION, GRANT A REASONABLE EXTENSION OF TIME
WITHIN WHICH TO FILE SUCH TRANSCRIPT AND ASSIGNMENT OF ERRORS.  WHEN
THE APPELLANT IS UNDER LEGAL DISABILITY AT THE TIME THE JUDGMENT IS
RENDERED, HE MAY FILE THE TRANSCRIPT AND ASSIGNMENT OF ERRORS WITHIN 90
DAYS AFTER THE REMOVAL OF THE DISABILITY." 

THE STATUTORY PROVISION FOR APPEAL IS BURNS' IND. STAT. ANN., 1956
REPLACEMENT VOL., SEC. 9-2301, WHICH PROVIDES: 

"APPEAL BY DEFENDANT - DECISIONS AND ORDERS REVIEWED.  - AN APPEAL TO
THE SUPREME COURT  ...  MAY BE TAKEN BY THE DEFENDANT AS A MATTER OF
RIGHT, FROM ANY JUDGMENT IN A CRIMINAL ACTION AGAINST HIM, IN THE
MANNER AND IN THE CASES PRESCRIBED HEREIN; AND, UPON THE APPEAL, ANY
DECISION OF THE COURT OR INTERMEDIATE ORDER MADE IN THE PROGRESS OF THE
CASE MAY BE REVIEWED." 

FN7  THIS CONCLUSION WAS ALSO EXPRESSED ON THE ORAL ARGUMENT IN THIS
COURT BY THE STATE'S ASSISTANT ATTORNEY GENERAL. 

FN8  THE SUBSTANCE OF THE ORIGINAL ACT OF 1867 IS NOW FOUND IN 28
U.S.C. SEC. 2241, SEE NOTE 1, SUPRA. 

FN9  FOR THE LEGISLATIVE HISTORY, SEE H.R. REP. NO. 2646, 79TH CONG.,
2D SESS., P. A172; H.R. 3214, 80TH CONG., 1ST SESS.; H.R. REP. NO. 308,
80TH CONG., 1ST SESS., P. A180; S. REP.  NO. 1559, 80TH CONG., 2D
SESS., PP. 9-10. 

MR. JUSTICE STEWART CONCURS IN THE JUDGMENT AND THE OPINION OF THE
COURT, WITH THE UNDERSTANDING THAT THE COURT DOES NOT HERE DEPART FROM
THE PRINCIPLES ANNOUNCED IN BROWN V. ALLEN, 344 U.S. 443. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE PROBLEM REPRESENTED BY THIS CASE IS AS OLD AS THE UNION AND WILL
PERSIST AS LONG AS OUR SOCIETY REMAINS A CONSTITUTIONAL FEDERALISM.  IT
CONCERNS THE RELATION OF THE UNITED STATES AND THE COURTS OF THE UNITED
STATES TO THE STATES AND THE COURTS OF THE STATES.  THE FEDERAL
JUDICIARY HAS NO POWER TO SIT IN JUDGMENT UPON A DETERMINATION OF A
STATE COURT UNLESS IT IS FOUND THAT IT MUST REST ON DISPOSITION OF A
CLAIM UNDER FEDERAL LAW.*  THIS IS SO WHETHER A STATE ADJUDICATION
COMES DIRECTLY UNDER REVIEW IN THIS COURT OR REACHES US BY WAY OF THE
LIMITED SCOPE OF HABEAS CORPUS JURISDICTION ORIGINATING IN A DISTRICT
COURT.  (JUDICIAL POWER IS NOT SO RESTRICTIVELY DISTRIBUTED IN OTHER
FEDERALISMS COMPARABLE TO OURS.  NEITHER THE CANADIAN SUPREME COURT NOR
THE AUSTRALIAN HIGH COURT IS RESTRICTED TO REVIEWING DOMINION AND
COMMONWEALTH ISSUES RESPECTIVELY.  THE FORMER REVIEWS DECISIONS OF
PROVINCIAL COURTS TURNING EXCLUSIVELY ON PROVINCIAL LAW AND THE LATTER
MAY REVIEW STATE DECISIONS RESTING EXCLUSIVELY ON STATE LAW.)  TO SUCH
AN EXTENT IS IT BEYOND OUR POWER TO REVIEW STATE ADJUDICATIONS TURNING
ON STATE LAW THAT EVEN IN THE HIGH TIDE OF NATIONALISM FOLLOWING THE
CIVIL WAR, THIS COURT FELT COMPELLED TO RESTRICT ITSELF TO REVIEW OF
FEDERAL QUESTIONS, IN CASES COMING FROM STATE COURTS, BY LIMITING
BROADLY PHRASED LEGISLATION THAT SEEMINGLY GAVE THIS COURT POWER TO
REVIEW ALL QUESTIONS, STATE AND FEDERAL, IN CASES JURISDICTIONALLY
BEFORE IT.  IT REFUSED TO IMPUTE TO CONGRESS SUCH A "RADICAL AND
HAZARDOUS CHANGE OF A POLICY VITAL IN ITS ESSENTIAL NATURE TO THE
INDEPENDENCE OF THE STATE COURTS  ...  ."  MURDOCK V. MEMPHIS, 20
WALL.  590, 630.  THIS DECISION HAS NOT UNJUSTIFIABLY BEEN CALLED ONE
OF "THE TWIN PILLARS" (THE OTHER IS MARTIN V. HUNTER'S LESSEE, 1
WHEAT.  304) ON WHICH HAVE BEEN BUILT "THE MAIN LINES OF DEMARCATION
BETWEEN THE AUTHORITY OF THE STATE LEGAL SYSTEMS AND THAT OF THE
FEDERAL SYSTEM."  HART, THE RELATIONS BETWEEN STATE AND FEDERAL LAW, 54
COL. L. REV. 489, 503-504. 

*THE FORMULATION BY MR. CHIEF JUSTICE FULLER, FOR THE COURT, OF THIS
JURISDICTIONAL SINE QUA NON IN CALIFORNIA POWDER WORKS V. DAVIS, 151
U.S. 389, 393, REPRESENTS THE UNDEVIATING PRACTICE OF THE COURT UNTIL
TODAY: 

"IT IS AXIOMATIC THAT, IN ORDER TO GIVE THIS COURT JURISDICTION ON
WRIT OF ERROR TO THE HIGHEST COURT OF A STATE IN WHICH A DECISION IN
THE SUIT COULD BE HAD, IT MUST APPEAR AFFIRMATIVELY NOT ONLY THAT A
FEDERAL QUESTION WAS PRESENTED FOR DECISION BY THE HIGHEST COURT OF THE
STATE HAVING JURISDICTION, BUT THAT ITS DECISION WAS NECESSARY TO THE
DETERMINATION OF THE CAUSE, AND THAT IT WAS ACTUALLY DECIDED OR THAT
THE JUDGMENT AS RENDERED COULD NOT HAVE BEEN GIVEN WITHOUT DECIDING IT.
AND WHERE THE DECISION COMPLAINED OF RESTS ON AN INDEPENDENT GROUND,
NOT INVOLVING A FEDERAL QUESTION AND BROAD ENOUGH TO MAINTAIN THE
JUDGMENT, THE WRIT OF ERROR WILL BE DISMISSED BY THIS COURT WITHOUT
CONSIDERING ANY FEDERAL QUESTION THAT MAY ALSO HAVE BEEN PRESENTED." 

SOMETHING THAT THUS GOES TO THE VERY STRUCTURE OF OUR FEDERAL SYSTEM
IN ITS DISTRIBUTION OF POWER BETWEEN THE UNITED STATES AND THE STATES
IS NOT A MERE BIT OF RED TAPE TO BE CUT, ON THE ASSUMPTION THAT THIS
COURT HAS GENERAL DISCRETION TO SEE JUSTICE DONE.  NOR IS IT ONE OF
THOSE "TECHNICAL" MATTERS THAT LAYMEN, WITH MORE CONFIDENCE THAN
UNDERSTANDING OF OUR CONSTITUTIONAL SYSTEM, SO OFTEN DISDAIN.    IN
VIEW OF SO VITAL A LIMITATION ON OUR JURISDICTION, THIS COURT HAS,
UNTIL RELATIVELY RECENTLY, BEEN VERY STRICT ON INSISTING ON AN
AFFIRMATIVE SHOWING ON THE RECORD, WHEN REVIEW IS HERE SOUGHT, THAT IT
CLEARLY APPEAR THAT THE JUDGMENT COMPLAINED OF RESTED ON THE
CONSTRUCTION OF FEDERAL LAW AND WAS NOT SUPPORTABLE ON A RULE OF LOCAL
LAW BEYOND OUR POWER TO QUESTION.  PARTICULARLY IN CASES WHERE LIFE OR
LIBERTY IS AT STAKE, THE COURT HAS RELAXED THIS INSISTENCE TO THE
EXTENT OF GIVING STATE COURTS AN OPPORTUNITY TO CLARIFY A DECISION THAT
COULD FAIRLY BE SAID TO BE OBSCURE OR AMBIGUOUS IN ESTABLISHING THAT IT
RESTED OR COULD REST ON AN INTERPRETATION OF STATE LAW.  NO DOUBT THIS
PROCEDURE MAKES FOR DELAY IN ULTIMATE DECISION.  BUT IT ENSURES THAT
THERE IS NO DENIAL OF THE RIGHT TO RESORT TO THIS COURT FOR THE
VINDICATION OF A FEDERAL RIGHT WHEN A STATE COURT'S ADJUDICATION LEAVES
FAIR GROUND FOR DOUBT WHETHER A FEDERAL RIGHT CONTROLLED THE ISSUE. 
EXPERIENCE SHOWS THAT THIS PROCEDURE FOR CLARIFICATION AT TIMES
ESTABLISHES THAT IT WAS, IN FACT, FEDERAL LAW ON WHICH THE STATE
DECISION RESTED, WHILE IN OTHER INSTANCES THE STATE COURT REMOVED ALL
DOUBT THAT STATE LAW SUPPORTED ITS DECISION, AND THERE WAS AN END OF
THE MATTER.  COMPARE WHITNEY V. CALIFORNIA, 274 U.S. 357, AND HERB V.
PITCAIRN, 324 U.S. 117, 325 U.S. 77, WITH STATE TAX COMM'N V. VAN COTT,
306 U.S. 511, AND VAN COTT V. STATE TAX COMM'N, 98 UTAH 264, 96 P.2D
740; MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551, AND NATIONAL TEA CO.
V. STATE, 208 MINN. 607, 294 N.W. 230; WILLIAMS V. GEORGIA, 349 U.S.
375, AND WILLIAMS V. STATE, 211 GA. 763, 88 S.E.2D 376. 

EVEN THE MOST BENIGN OR LATITUDINARIAN ATTITUDE IN READING STATE
COURT OPINIONS PRECLUDES TODAY'S DECISION.  IT IS NOT QUESTIONED THAT
THE INDIANA SUPREME COURT DISCUSSED TWO ISSUES, ONE INDISPUTABLY A RULE
OF LOCAL LAW AND THE OTHER A CLAIM UNDER THE FOURTEENTH AMENDMENT. 
THAT COURT DISCUSSED THE CLAIM UNDER THE FOURTEENTH AMENDMENT RATHER
SUMMARILY, AFTER IT HAD DEALT EXTENSIVELY WITH THE PROBLEM OF LOCAL
LAW.  IF THE INDIANA COURT'S OPINION HAD STOPPED WITH ITS LENGTHY
DISCUSSION OF THE LOCAL LAW AND HAD NOT GONE ON TO CONSIDER THE FEDERAL
ISSUE, PREFACING ITS CONSIDERATION WITH THE INTRODUCTORY SENTENCE THAT
"OUR DECISION ON THE POINT UNDER EXAMINATION MAKES IT UNNECESSARY FOR
US TO CONSIDER THE OTHER CONTENTIONS OF THE APPELLANT; HOWEVER, BECAUSE
OF THE FINALITY OF THE SENTENCE IN THE CASE WE HAVE REVIEWED THE
EVIDENCE TO SATISFY OURSELVES THAT THERE IS NO MISCARRIAGE OF JUSTICE
IN THIS CASE  ...  ."  (IRVIN V. STATE, 236 IND. 384, 392-393, 139
N.E.2D 898, 902), IT IS INCONCEIVABLE THAT, ON THE PROCEEDING BEFORE
US, WE WOULD ENTERTAIN JURISDICTION.  WHAT THIS COURT IS THEREFORE
SAYING, IN EFFECT, IS THAT IT INTERPRETS THE DISCUSSION OF THE
FOURTEENTH AMENDMENT PROBLEM WHICH FOLLOWS THE ELABORATE AND
POTENTIALLY CONCLUSIVE DISCUSSION OF THE STATE ISSUE NOT AS RESTING THE
CASE ON TWO GROUNDS, STATE AND FEDERAL, BUT AS A TOTAL ABANDONMENT OF
THE STATE GROUND, A LEGAL ERASING OF THE SEVEN-PAGE DISCUSSION OF STATE
LAW.  CONCEDEDLY, IF A STATE COURT RESTS A DECISION ON BOTH AN ADEQUATE
STATE GROUND AND A FEDERAL GROUND, THIS COURT IS WITHOUT JURISDICTION
TO REVIEW THE SUPERFLUOUS FEDERAL GROUND.  FOR WHILE STATE COURTS ARE
SUBJECT TO THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION (ART.
VI, SEC. 2), THEY ARE SO SUBJECT ONLY IF THAT CLAUSE BECOMES OPERATIVE,
AND THEY NEED NOT PASS ON A FEDERAL ISSUE IF A RELEVANT RULE OF STATE
LAW CAN DISPOSE OF THE LITIGATION. 

IT MAY BE THAT IT IS THE UNWRITTEN PRACTICE OF THE INDIANA SUPREME
COURT TO HAVE AN "UNNECESSARY" CONSIDERATION OF A FEDERAL ISSUE WIPE
OUT OR DISPLACE A PRIOR FULL DISCUSSION OF A CONTROLLING STATE GROUND. 
MAYBE SO.  BUT IT IS SURELY NOT A SELF-EVIDENT PROPOSITION THAT
DISCUSSION OF A FEDERAL CLAIM CONSTITUTES ABANDONMENT OF A PRIOR
DISPOSITION OF A CASE ON A RELEVANT AND CONCLUSIVE STATE GROUND.  THE
FREQUENCY WITH WHICH STATE COURT OPINIONS INDULGE IN THE SUPERFLUITY OF
DEALING WITH A FEDERAL ISSUE, AFTER RESTING A CASE ON A STATE GROUND,
AFFORDS ABUNDANT PROOF THAT WE CANNOT TAKE JUDICIAL NOTICE OF AN
INFERENCE THAT A FEDERAL QUESTION DISCUSSION FOLLOWING A STATE-GROUND
DISPOSITION SPELLS ABANDONMENT OF THE LATTER.  PERHAPS IF COUNSEL HAD
DOCUMENTED SUCH AN INDIANA PRACTICE, HAD SUPPLIED US WITH A BASIS FOR
DRAWING THAT CONCLUSION REGARDING THE APPROPRIATE WAY OF READING
INDIANA OPINIONS, THIS COURT ITSELF WOULD BE ENTITLED TO FIND THAT SUCH
IS THE WAY IN WHICH INDIANA DECISIONS MUST BE READ.  BUT WE CANNOT
EXTEMPORIZE THE EXISTENCE OF SUCH AN INDIANA PRACTICE AS A BASIS FOR
OUR JURISDICTION.  RESTRICTED, AS WE ARE RESTRICTED, TO THE TEXT OF
WHAT THE SUPREME COURT OF INDIANA WROTE IN 236 IND. 384, 139 N.E.2D
898, IN ASCERTAINING WHAT IT IS THAT THE INDIANA SUPREME COURT MEANT TO
DO WHEN IT FIRST ENLARGED UPON A CONTROLLING STATE GROUND AND THEN, EX
GRATIA, DEALT WITH AN "UNNECESSARY" FEDERAL GROUND, WE ARE NOT FREE TO
PLUCK FROM THE AIR AN UNDOCUMENTED STATE PRACTICE ON THE STRENGTH OF
WHICH WE ARE TO IGNORE THE BULK OF THE STATE COURT'S OPINION AND TREAT
IT AS THOUGH IT HAD NOT BEEN WRITTEN OR ITS SIGNIFICANCE HAD BEEN
DISCREDITED BY THE INDIANA SUPREME COURT. 

IN THE MOST COMPASSIONATE MOOD, ALL WE ARE ENTITLED TO DO IN A CASE
LIKE THIS, WHERE LIFE IS AT STAKE, IS TO AFFORD AN OPPORTUNITY FOR THE
INDIANA SUPREME COURT TO TELL US WHETHER, IN FACT, IT ABANDONED ITS
STATE GROUND AND RESTED ITS DECISION SOLELY ON THE "UNNECESSARY"
FEDERAL GROUND.  THUS ONLY COULD THIS COURT ACQUIRE JURISDICTION OVER
THE FEDERAL QUESTION.  SUCH A REMISSION TO THE INDIANA SUPREME COURT,
BY AN APPROPRIATE PROCEDURE, FOR A CLARIFICATION OF ITS INTENTION IN
WRITING THIS DOUBLE-BARRELED OPINION WOULD BE IN FULL ACCORD WITH THE
SERIES OF CASES IN WHICH THE STATE COURT WAS GIVEN OPPORTUNITY TO
CLARIFY ITS PURPOSE.  TO ASSUME, AS THE COURT DOES, THAT THE INDIANA
SUPREME COURT THREW INTO THE DISCARD AN ELABORATELY CONSIDERED LOCAL
LAW RULE IS, I MOST RESPECTFULLY SUBMIT, TO ASSUME A JURISDICTION THAT
WE DO NOT HAVE.  THIS ASSUMPTION OF JURISDICTION CANNOT HELP BUT CALL
TO MIND THE ADMONITION OF BENJAMIN R. CURTIS, ONE OF THE NOTABLE
MEMBERS IN THE COURT'S HISTORY, THAT "QUESTIONS OF JURISDICTION WERE
QUESTIONS OF POWER AS BETWEEN THE UNITED STATES AND THE SEVERAL
STATES."  2 CLIFF.  614 (1ST CIR.). 

WITH DUE REGARD TO THE LIMITS OF OUR JURISDICTION THERE IS ONLY ONE
OTHER MODE OF READING THE OPINION OF THE INDIANA SUPREME COURT, ONE
OTHER MODE, THAT IS, BY WHICH THE MEANING OF ITS OPINION IS TO BE
DECIDED BY THAT COURT AND NOT THIS.  THAT IS THE MODE WHICH MY BROTHER
HARLAN HAS EXPLICATED, AND IT IS ENTIRELY CONSISTENT WITH THE GOVERNING
CONSIDERATIONS WHICH I HAVE TRIED TO SET FORTH FOR ME ALSO TO JOIN, AS
I DO JOIN, HIS DISSENTING OPINION. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK,
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

ALTHOUGH I AGREE THAT FEDERAL CONSIDERATION OF PETITIONER'S
CONSTITUTIONAL CLAIMS IS NOT FORECLOSED BY THE DECISION OF THE SUPREME
COURT OF INDIANA, I THINK THAT THE COURT'S DISPOSITION OF THE MATTER,
WHICH CONTEMPLATES THE OVERTURNING OF PETITIONER'S CONVICTION WITHOUT
THE NECESSITY OF FURTHER PROCEEDINGS IN THE STATE COURTS IF HIS
CONSTITUTIONAL CONTENTIONS ARE ULTIMATELY FEDERALLY SUSTAINED, RESTS
UPON AN IMPERMISSIBLE INTERPRETATION OF THE OPINION OF THE STATE
SUPREME COURT (236 IND. 384, 139 N.E.2D 898), AND THAT A DIFFERENT
PROCEDURAL COURSE IS REQUIRED IF STATE AND FEDERAL CONCERNS IN THIS
SITUATION ARE TO BE KEPT IN PROPER BALANCE. 

IT IS CLEAR THAT THE FEDERAL COURTS WOULD BE WITHOUT JURISDICTION TO
CONSIDER PETITIONER'S CONSTITUTIONAL CLAIMS ON HABEAS CORPUS IF THE
SUPREME COURT OF INDIANA REJECTED THOSE CLAIMS BECAUSE, IRRESPECTIVE OF
THEIR POSSIBLE MERIT, THEY WERE NOT PRESENTED TO IT IN COMPLIANCE WITH
THE STATE'S "ADEQUATE AND EASILY-COMPLIED-WITH METHOD OF APPEAL." 
BROWN V. ALLEN, 344 U.S. 443, 485.  THE FIRST QUESTION THAT CONCERNS
US, THEREFORE, IS WHETHER THE STATE COURT'S JUDGMENT AFFIRMING THE
CONVICTION RESTS INDEPENDENTLY ON SUCH A STATE GROUND. 

AT THE OUTSET WE MUST KEEP IN MIND SEVERAL ASPECTS OF INDIANA
CRIMINAL PROCEDURE, AND THE MANNER IN WHICH PETITIONER'S ATTORNEYS
PRESENTED HIS APPEAL TO THE INDIANA SUPREME COURT, ALL AS NOTED IN THIS
COURT'S OPINION.  THE PROCEDURAL ASPECTS ARE (1) THAT NO APPEAL LIES
FROM AN ORDER DENYING A NEW TRIAL AS SUCH, THAT KIND OF AN ORDER BEING
REVIEWABLE ONLY IN CONNECTION WITH AN APPEAL FROM THE FINAL JUDGMENT IN
THE CASE; (2) AN ESCAPEE, SUCH AS THIS PETITIONER WAS, HAS NO STANDING
TO MAKE A MOTION FOR A NEW TRIAL, AT LEAST IF HE IS AT LARGE THROUGHOUT
THE PERIOD AVAILABLE FOR THE MAKING OF SUCH A MOTION, 236 IND., AT 386
392, 139 N.E.2D, AT 898-902; AND (3) AN APPELLANT MUST PERFECT HIS
APPEAL BY FILING ASSIGNMENTS OF ERROR AND A TRANSCRIPT OF THE RECORD. 
IN THE TAKING OF PETITIONER'S APPEAL FROM THE JUDGMENT OF CONVICTION
THE ONLY ASSIGNMENT OF ERROR FILED RELATED TO THE TRIAL COURT'S DENIAL
OF THE MOTION FOR A NEW TRIAL.  WHILE THAT ASSIGNMENT WAS SUPPORTED BY
A DETAILED SPECIFICATION OF PETITIONER'S CONSTITUTIONAL CLAIMS, NONE OF
SUCH CLAIMS WAS INDEPENDENTLY FILED AS AN ASSIGNMENT OF ERROR. 

HAD THE STATE SUPREME COURT DECLINED WITHOUT MORE TO REACH
PETITIONER'S CONSTITUTIONAL CONTENTIONS BECAUSE (1) HIS MOTION FOR A
NEW TRIAL HAD BEEN FORFEITED BY REASON OF ESCAPE, AND (2) SUCH CLAIMS
HAD NOT INDEPENDENTLY BEEN ASSIGNED AS ERROR, THE FEDERAL COURTS WOULD
NOT, AS HAD BEEN SAID, BE ENTITLED TO CONSIDER THEM.  THE DIFFICULTY
HERE IS THAT THE STATE COURT DID NOT STOP AT THIS JUNCTURE, BUT, AFTER
POINTING OUT THAT PETITIONER HAD ASSIGNED AS ERROR ONLY THE DENIAL OF
HIS MOTION FOR A NEW TRIAL AND HOLDING THAT SUCH DENIAL WAS NOT ERROR
BECAUSE OF PETITIONER'S ESCAPE, WENT ON TO CONSIDER AND FIND WITHOUT
MERIT PETITIONER'S CONSTITUTIONAL CLAIMS. 

THIS COURT INFERS FROM THE FACT THAT THE INDIANA COURT CONSIDERED
PETITIONER'S CONSTITUTIONAL CONTENTIONS THAT ITS AFFIRMANCE OF HIS
CONVICTION RESTED ENTIRELY ON THE DENIAL OF THOSE CLAIMS.  IT READS THE
STATE COURT'S OPINION AS SAYING THAT ALTHOUGH THAT COURT COULD UNDER
STATE LAW PROPERLY REST ITS AFFIRMANCE OF THE CONVICTION ON
PETITIONER'S FAILURE TO ASSIGN AS ERROR ANYTHING BUT THE DENIAL OF HIS
MOTION FOR A NEW TRIAL, WHICH, AS WE HAVE SEEN, WAS HELD TO HAVE BEEN
PROPERLY DENIED UNDER THE STATE'S "ESCAPEE" RULE, IT WOULD NOT DO SO
BUT WOULD TREAT PETITIONER'S CONSTITUTIONAL CLAIMS AS IF THEY HAD
THEMSELVES BEEN PRESENTED AS ASSIGNMENTS OF ERROR, RATHER THAN ONLY AS
GROUNDS SUPPORTING THE ERROR ASSIGNED TO THE TRIAL COURT'S ORDER
DENYING A NEW TRIAL.  I THINK THIS READING OF THE STATE COURT'S OPINION
DEFIES ITS PLAIN LANGUAGE. 

THE STATE COURT DEVOTES NO LESS THAN SEVEN PAGES OF ITS NINE-PAGE
OPINION TO AN EXHAUSTIVE DISCUSSION OF THE RULE OF STATE LAW WHICH
REQUIRES DENIAL OF A NEW TRIAL MOTION MADE BY AN ESCAPEE STILL AT
LARGE.  AT THE CLOSE OF THIS DISCUSSION IT SAYS: 

"THE ACTION UPON WHICH THE APPELLANT PREDICATES ERROR IN THIS APPEAL
IS BASED SOLELY UPON THE OVERRULING OF A MOTION FOR A NEW TRIAL.  THERE
IS NO OTHER ERROR CLAIMED.  SINCE APPELLANT HAD NO STANDING IN COURT AT
THE TIME HE FILED A MOTION FOR A NEW TRIAL THE SITUATION IS THE SAME AS
IF NO MOTION FOR A NEW TRIAL HAD BEEN FILED, OR HE HAD VOLUNTARILY
PERMITTED THE TIME TO EXPIRE FOR SUCH FILING.  HIS LETTER REVEALS HE
WAS AWARE OF THIS RIGHT, AND HAD TALKED WITH HIS ATTORNEYS ABOUT A NEW
TRIAL AND AN APPEAL. 

"NO ERROR COULD HAVE BEEN COMMITTED IN OVERRULING THE MOTION FOR A
NEW TRIAL UNDER THE CIRCUMSTANCES. 

"OUR DECISION ON THE POINT UNDER EXAMINATION MAKES IT UNNECESSARY FOR
US TO CONSIDER THE OTHER CONTENTIONS OF THE APPELLANT; HOWEVER, BECAUSE
OF THE FINALITY OF THE SENTENCE IN THE CASE WE HAVE REVIEWED THE
EVIDENCE TO SATISFY OURSELVES THAT THERE IS NO MISCARRIAGE OF JUSTICE
IN THIS CASE  ...  ."  236 IND., AT 392-393, 139 N.E.2D, AT 901-902. 

THE OPINION THEN REVIEWS THE PETITIONER'S CONSTITUTIONAL CONTENTIONS,
AND CONCLUDES WITH THE STATEMENT: 

"IT DOES NOT APPEAR FROM THE RECORD AND ARGUMENT HAD, THAT THE
APPELLANT WAS DENIED DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT,
OR DUE COURSE OF LAW UNDER THE BILL OF RIGHTS, OR THAT THERE WAS ANY
MISCARRIAGE OF JUSTICE WHEN HE WAS CONVICTED AND GIVEN THE DEATH
PENALTY."  236 IND., AT 394, 139 N.E.2D, AT 902. 

THIS COURT'S READING OF THE INDIANA OPINION MAKES THE EXHAUSTIVE
DISCUSSION IN THAT OPINION OF THE STATUS OF AN ESCAPEE UNDER INDIANA
LAW ENTIRELY UNNECESSARY AND MEANINGLESS.  WHILE I AGREE WITH THE COURT
THAT THE INDIANA SUPREME COURT REACHED A "CONSIDERED CONCLUSION THAT
THE CONVICTION RESULTING IN THE DEATH SENTENCE WAS NOT OBTAINED IN
DISREGARD OF THE PROTECTIONS SECURED TO THE PETITIONER BY THE
CONSTITUTION OF THE UNITED STATES," IT IS FULLY APPARENT THAT THE STATE
COURT ULTIMATELY RESTED ITS JUDGMENT OF AFFIRMANCE SQUARELY ON THE
GROUND THAT THE PETITIONER'S SOLE ASSIGNMENT OF ERROR, THE DENIAL OF
HIS MOTION FOR A NEW TRIAL, WAS WITHOUT MERIT BECAUSE HE WAS AN ESCAPEE
WHEN THAT MOTION WAS MADE, AND WHEN IT WAS DENIED.  THE FACT THAT THE
INDIANA COURT ALSO REACHED A CONCLUSION THAT PETITIONER'S CLAIMS OF
CONSTITUTIONAL DEPRIVATION WERE NOT MADE OUT DOES NOT ENTITLE US TO
IGNORE THE FACT THAT IT WAS ON A POINT OF STATE PROCEDURE THAT IT
ULTIMATELY RESTED. 

NEVERTHELESS, I DO NOT THINK THAT IN THE CIRCUMSTANCES OF THIS CASE
THE STATE'S CONTENTION THAT THE FEDERAL COURTS LACK JURISDICTION TO
DEAL WITH PETITIONER'S CONSTITUTIONAL POINTS CAN BE ACCEPTED.  THE
STATE HAS CONCEDED THAT ITS SUPREME COURT WAS EMPOWERED IN ITS
DISCRETION TO DISREGARD THE PROCEDURAL DEFECTS IN PETITIONER'S APPEAL. 
THAT BEING SO, THE STATE COURT'S CONSTITUTIONAL DISCUSSION TAKES ON,
FOR ME, A VITAL SIGNIFICANCE IN CONNECTION WITH ITS PROCEDURAL HOLDING
UNDER STATE LAW, NAMELY, THAT AFFIRMANCE OF PETITIONER'S CONVICTION WAS
RESTED ON THIS STATE GROUND ONLY AFTER THE INDIANA COURT, DISPLAYING A
METICULOUS CONCERN THAT STATE PROCEDURAL REQUIREMENTS SHOULD NOT BE
ALLOWED TO WORK A "MISCARRIAGE OF JUSTICE," PARTICULARLY IN VIEW OF
"THE FINALITY OF THE SENTENCE," HAD SATISFIED ITSELF THAT PETITIONER'S
CONSTITUTIONAL CONTENTIONS WERE UNTENABLE.  SUCH A READING OF THE STATE
COURT'S OPINION IS REQUIRED TO GIVE MEANING TO ITS CONSTITUTIONAL
DISCUSSION, FOR IF PETITIONER'S PROCEDURAL FAILURES INEXORABLY
PREVENTED THE STATE APPELLATE COURT FROM REACHING HIS CONSTITUTIONAL
CLAIMS THEIR DISCUSSION IN ITS OPINION WOULD APPEAR TO HAVE BEEN WHOLLY
POINTLESS.  AT THE SAME TIME THIS VIEW OF THE OPINION DEPRIVES
INDIANA'S PROCEDURAL HOLDING OF VITALITY AS A BAR TO CONSIDERATION OF
PETITIONER'S CONSTITUTIONAL CLAIMS BY THE FEDERAL COURTS ON HABEAS
CORPUS, FOR THE DECISION AS TO THOSE CLAIMS WAS INEXTRICABLY A PART OF
THAT HOLDING.  I THEREFORE THINK THAT THE TWO COURTS BELOW SHOULD HAVE
DEALT WITH THE MERITS OF PETITIONER'S CONSTITUTIONAL POINTS. 

HOWEVER, EVEN WERE THE FEDERAL COURTS ULTIMATELY TO HOLD THAT
PETITIONER WAS DENIED DUE PROCESS, IT WOULD NOT BE WITHIN THEIR
PROVINCE THEREUPON TO ORDER HIS RELEASE.  AT THAT POINT IT WOULD
UNMISTAKABLY BE THE PREROGATIVE OF THE INDIANA SUPREME COURT TO DECIDE
WHETHER ON DIFFERENT POSTULATES OF FEDERAL CONSTITUTIONAL LAW IT WOULD
NEVERTHELESS HOLD THAT UNDER INDIANA LAW PETITIONER WOULD STILL BE
BARRED FROM BEING HEARD BECAUSE OF HIS FAILURE TO COMPLY WITH THE
STATE'S PROCEDURAL RULES.  FOR JUST AS IT IS THE FEDERAL COURTS'
RESPONSIBILITY AND DUTY FINALLY TO DECIDE THE FEDERAL QUESTIONS
PRESENTED IN THIS CASE, IT BELONGS TO THE INDIANA SUPREME COURT FINALLY
TO DECIDE THE STATE QUESTIONS PRESENTED IN THE LIGHT OF FEDERAL
DECISION AS TO THE COMMANDS OF THE FOURTEENTH AMENDMENT.  HENCE IF
PETITIONER ULTIMATELY PREVAILS ON HIS CONSTITUTIONAL CLAIMS, FURTHER
PROCEEDINGS IN THE STATE COURTS WILL BE UNAVOIDABLE. 

IN THIS STATE OF AFFAIRS I THINK OUR PROPER COURSE SHOULD BE TO
PROCEED OURSELVES TO A DECISION OF THE CONSTITUTIONAL ISSUES, RATHER
THAN REMAND THE CASE TO THE COURT OF APPEALS.  IF THE JUDGMENT OF THE
INDIANA SUPREME COURT IS POTENTIALLY GOING TO BE CALLED INTO QUESTION
BECAUSE OF A FEDERAL COURT'S CONCLUSION THAT IT IS BASED IN PART ON
ERRONEOUS CONSTITUTIONAL POSTULATES, I BELIEVE THAT INDIANA IS ENTITLED
TO HAVE THAT CONCLUSION AUTHORITATIVELY PRONOUNCED BY THIS COURT. 
MOREOVER, THE DISTRICT COURT, AND ONE JUDGE OF THE COURT OF APPEALS,
HAVE ALREADY GIVEN CLEAR (AND CONFLICTING) STATEMENTS OF THEIR VIEWS AS
TO THE MERITS OF SUCH ISSUES.  THE QUESTIONS HAVE BEEN EXHAUSTIVELY
BRIEFED AND FULLY ARGUED BEFORE US.  AND THIS COURSE WOULD AVOID
FURTHER PROTRACTED DELAY. 

WERE WE TO CONCLUDE THAT THE INDIANA SUPREME COURT WAS CORRECT IN ITS
PREMISE THAT PETITIONER'S CONSTITUTIONAL POINTS ARE WITHOUT MERIT, THE
JUDGMENT OF THE COURT OF APPEALS DISMISSING THE WRIT OF HABEAS CORPUS
SHOULD OF COURSE BE AFFIRMED.  IF, ON THE OTHER HAND, WE SHOULD DECIDE
THAT PETITIONER WAS IN FACT DEPRIVED OF DUE PROCESS AT TRIAL, I WOULD
HOLD THE CASE AND GIVE PETITIONER A REASONABLE OPPORTUNITY TO SEEK,
THROUGH SUCH AVENUES AS MAY BE OPEN TO HIM, A DETERMINATION BY THE
INDIANA SUPREME COURT AS TO WHETHER, IN LIGHT OF SUCH A DECISION, IT
WOULD NEVERTHELESS HOLD THAT PETITIONER'S FAILURE TO COMPLY WITH THE
STATE'S PROCEDURAL RULES REQUIRED AFFIRMANCE OF HIS CONVICTION.  CF.
PATTERSON V. ALABAMA, 294 U.S. 600; WILLIAMS V. GEORGIA, 349 U.S. 375. 
SHOULD NO SUCH AVENUES BE OPEN TO PETITIONER IN INDIANA, IT WOULD THEN
BE TIME ENOUGH TO DECIDE WHAT FINAL DISPOSITION SHOULD BE MADE OF THIS
CASE. 

FOR THESE REASONS I CONCUR IN THE VIEW THAT FEDERAL CONSIDERATION OF
PETITIONER'S CONSTITUTIONAL CLAIMS IS NOT PRECLUDED, AND IN ALL OTHER
RESPECTS DISSENT FROM THE COURT'S OPINION. 
..END :




















ARROYO V. UNITED STATES 359 U.S. 419 


NO. 246.  ARGUED MARCH 2, 1959 - DECIDED MAY 4, 1959 - 256 F.2D 549,
REVERSED. 


UNLAWFUL FOR A REPRESENTATIVE OF ANY EMPLOYEES SUBJECT TO THE ACT "TO
RECEIVE OR ACCEPT  ...  FROM THE EMPLOYER OF SUCH EMPLOYEES ANY MONEY
...  ."; BUT SEC. 302(C) MAKES THIS PROHIBITION INAPPLICABLE "(5) WITH
RESPECT TO MONEY ...  PAID TO A TRUST FUND ESTABLISHED BY SUCH
REPRESENTATIVE, FOR THE SOLE AND EXCLUSIVE BENEFIT OF THE EMPLOYEES OF
SUCH EMPLOYER  ...  ."  EMPLOYERS OF MEMBERS OF A UNION REPRESENTED BY
PETITIONER ISSUED AND DELIVERED TO PETITIONER CHECKS INTENDED AND
DESIGNATED AS CONTRIBUTIONS TO A UNION WELFARE FUND OF THE KIND
DESCRIBED IN SEC. 302(C); BUT PETITIONER APPROPRIATED THE FUNDS TO HIS
OWN USE.  HELD:  PETITIONER'S CONDUCT WAS REPREHENSIBLE AND IMMORAL AND
MAY BE ASSUMED TO HAVE VIOLATED LOCAL CRIMINAL LAW; BUT IT DID NOT
CONSTITUTE A VIOLATION OF SEC. 302(B) OF THE ACT.  PP. 420-427. 

(A)  ON THE RECORD IN THIS CASE, IT IS CLEAR THAT WHAT PETITIONER
RECEIVED WERE CHECKS "PAID TO A TRUST FUND" WITHIN THE MEANING OF SEC.
302(C)(5); AND, THEREFORE, THE RECEIPT OF SUCH CHECKS WAS NOT A
VIOLATION OF SEC. 302(B).  PP. 421-424. 

(B)  ITS LEGISLATIVE HISTORY SHOWS THAT SEC. 302(B) WAS NOT INTENDED
TO DUPLICATE STATE CRIMINAL LAWS BUT WAS CONCERNED WITH CORRUPTION OF
COLLECTIVE BARGAINING THROUGH BRIBERY OF EMPLOYEE REPRESENTATIVES BY
EMPLOYERS, WITH EXTORTION BY EMPLOYEE REPRESENTATIVES, AND WITH
POSSIBLE ABUSE BY UNION OFFICERS OF THE POWER THAT THEY MIGHT ACHIEVE
IF WELFARE FUNDS WERE LEFT TO THEIR SOLE CONTROL.  PP. 424-427. 

ARROYO V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

PROVIDES:  "(B) IT SHALL BE UNLAWFUL FOR ANY REPRESENTATIVE OF ANY
EMPLOYEES WHO ARE EMPLOYED IN AN INDUSTRY AFFECTING COMMERCE TO RECEIVE
OR ACCEPT, OR TO AGREE TO RECEIVE OR ACCEPT, FROM THE EMPLOYER OF SUCH
EMPLOYEES ANY MONEY OR OTHER THING OF VALUE."  UNDER SEC. 302(C) OF THE
ACT THIS BROAD PROHIBITION IS MADE INAPPLICABLE IN FIVE SITUATIONS, ONE
BEING, "WITH RESPECT TO MONEY OR OTHER THING OF VALUE PAID TO A TRUST
FUND ESTABLISHED BY SUCH REPRESENTATIVE, FOR THE SOLE AND EXCLUSIVE
BENEFIT OF THE EMPLOYEES OF SUCH EMPLOYER  ...  ."  PROVIDED THAT THE
TRUST FUND MEETS CERTAIN STANDARDS SPECIFIED IN THAT SUBSECTION. 
(FN1) 

THE PETITIONER, A REPRESENTATIVE OF EMPLOYEES IN AN INDUSTRY
AFFECTING COMMERCE, WAS CONVICTED IN THE UNITED STATES DISTRICT COURT
FOR PUERTO RICO OF VIOLATING SEC. 302(B) OF THE ACT BY RECEIVING
$15,000 FROM TWO OF THEIR EMPLOYERS.  (FN2)  THE JUDGMENT OF CONVICTION
WAS AFFIRMED BY THE COURT OF APPEALS FOR THE FIRST CIRCUIT.  256 F.2D
549.  CERTIORARI WAS GRANTED BECAUSE THE CASE PRESENTS AN IMPORTANT
QUESTION AS TO THE SCOPE OF THIS PROVISION OF THE LABOR MANAGEMENT
RELATIONS ACT OF 1947.  358 U.S. 812. 

THE FACTS ARE SUBSTANTIALLY UNDISPUTED.  IN 1953 THE PETITIONER WAS
PRESIDENT OF A UNION WHICH REPRESENTED THE EMPLOYEES OF TWO AFFILIATED
CORPORATIONS.  IN THAT CAPACITY HE NEGOTIATED A COLLECTIVE BARGAINING
AGREEMENT WITH THE EMPLOYERS.  THIS AGREEMENT PROVIDED FOR THE
ESTABLISHMENT OF A WELFARE FUND, WHICH, IT IS UNQUESTIONED, MET THE
REQUISITE CRITERIA OF SEC. 302(C)(5) OF THE ACT.  IT WAS AGREED THAT
THE PETITIONER WOULD BE THE UNION REPRESENTATIVE ON THE JOINT COMMITTEE
WHICH WAS TO ADMINISTER THE FUND.  (FN3)  AFTER THE AGREEMENT WAS
SIGNED, THE PETITIONER TOLD THE EMPLOYERS' REPRESENTATIVE THAT THERE
WAS TO BE A UNION MEETING THAT EVENING, AND THAT HE WANTED TO EXHIBIT
THE WELFARE FUND CHECKS TO THE UNION MEMBERS.  ACCORDINGLY, THE
PETITIONER WAS GIVEN TWO CHECKS FOR $7,500.  ATTACHED VOUCHERS
IDENTIFIED THE CHECKS AS THE EMPLOYERS' CONTRIBUTIONS TO THE WELFARE
FUND. 

INSTEAD OF SUBSEQUENTLY DEPOSITING THE CHECKS IN THE EXISTING WELFARE
FUND BANK ACCOUNT, HOWEVER, THE PETITIONER USED THEM TO OPEN AN ACCOUNT
IN THE NAME OF THE FUND IN ANOTHER BANK.  A FEW DAYS THEREAFTER, HE
GAVE THE BANK A PURPORTED RESOLUTION FROM THE UNION'S BOARD OF
DIRECTORS AUTHORIZING WITHDRAWALS FROM THIS ACCOUNT UPON HIS SIGNATURE
ALONE.  AS SOON AS THE EMPLOYERS LEARNED WHAT HAD HAPPENED, THEY
ATTEMPTED TO SECURE PERFORMANCE OF THE AGREEMENT FOR JOINT
ADMINISTRATION OF THE FUND.  OVER A PERIOD OF SEVERAL MONTHS, HOWEVER,
THE PETITIONER USED THE MONEY FOR HIS OWN PERSONAL PURPOSES AND, AFTER
TRANSFERRING THE FUNDS TO ANOTHER ACCOUNT, FOR NONWELFARE UNION
PURPOSES AS WELL. 

THE GOVERNMENT DOES NOT MAINTAIN THAT EMBEZZLEMENT BY AN EMPLOYEE
REPRESENTATIVE FROM AN EMPLOYER-FINANCED WELFARE FUND WOULD VIOLATE THE
FEDERAL STATUTE UNDER WHICH THE PETITIONER WAS CONVICTED.  (FN4)  IT
CONTENDS, HOWEVER, THAT IN THIS CASE THE JURY COULD PROPERLY FIND THAT
THE PETITIONER WHEN HE ACCEPTED THE TWO CHECKS INTENDED TO USE THE
FUNDS FOR HIS PERSONAL PURPOSES, AND THAT HE WAS THEREFORE GUILTY NOT
OF EMBEZZLEMENT, BUT OF CONDUCT AMOUNTING TO LARCENY BY TRICK.  WE
AGREE THAT THE EVIDENCE COULD PROPERLY SUPPORT AN INFERENCE THAT THE
PETITIONER'S PURPOSE FROM THE OUTSET WAS TO APPROPRIATE THE TWO CHECKS
FOR HIS OWN USE.  WE CANNOT AGREE, HOWEVER, THAT THIS CONDUCT VIOLATED
SEC. 302(B) OF THE ACT. 

EMPLOYERS, WHICH PROVIDES THAT "(A) IT SHALL BE UNLAWFUL FOR ANY
EMPLOYER TO PAY OR DELIVER, OR TO AGREE TO PAY OR DELIVER, ANY MONEY OR
OTHER THING OF VALUE TO ANY REPRESENTATIVE OF ANY OF HIS EMPLOYEES WHO
ARE EMPLOYED IN AN INDUSTRY AFFECTING COMMERCE."  THE GOOD FAITH OF THE
EMPLOYERS IN DELIVERING THE TWO CHECKS TO THE PETITIONER - THEIR INTENT
THAT THE MONEY GO TO THE WELFARE FUND CREATED BY THE COLLECTIVE
BARGAINING AGREEMENT - WAS NOT QUESTIONED THROUGHOUT THE TRIAL AND IS
NOT QUESTIONED HERE.  (FN5)  THE SOLE PURPOSE OF THE DELIVERY OF THE
CHECKS, THEREFORE, WAS TO MAKE A LAWFUL PAYMENT.  WHAT THE PETITIONER
RECEIVED WERE CHECKS "PAID TO A TRUST FUND."  THE TRANSACTION,
THEREFORE, WAS WITHIN THE PRECISE LANGUAGE OF SEC. 302(C), AND THUS WAS
NOT A VIOLATION OF SEC. 302(B). 

THIS IS NOT TO SAY THAT THE STATUTE REQUIRES MUTUALITY OF GUILT FOR
THE CONVICTION OF EITHER THE EMPLOYER OR THE REPRESENTATIVE OF
EMPLOYEES.  AN EMPLOYER MIGHT BE GUILTY UNDER SUBSECTION (A) IF HE PAID
MONEY TO A REPRESENTATIVE OF EMPLOYEES EVEN THOUGH THE LATTER HAD NO
INTENTION OF ACCEPTING.  CF. LUNSFORD V. UNITED STATES, 200 F.2D 237;
SCHNEIDER V. UNITED STATES, 192 F.2D 498.  A REPRESENTATIVE MIGHT BE
GUILTY IF HE COERCED PAYMENTS FROM AN INNOCENT AND UNWILLING EMPLOYER. 
CF. UNITED STATES V. WALDIN, 149 F. SUPP. 912, AFF'D 253 F.2D 551. 
BOTH WOULD BE GUILTY IF THE PAYMENT WERE OSTENSIBLY MADE FOR ONE OF THE
LAWFUL PURPOSES SPECIFIED IN SEC. 302(C) IF BOTH KNEW THAT SUCH A
PURPOSE WAS MERELY A SHAM. 

THE PRESENT CASE, HOWEVER, IS NOT AN ANALOGUE TO ANY OF THESE
SITUATIONS.  THE CHECKS WERE DRAWN BY THE EMPLOYERS AND DELIVERED TO
THE PETITIONER AS PAYMENT TO A UNION WELFARE FUND.  THEIR RECEIPT BY
HIM, THEREFORE, WAS NOT A VIOLATION OF THE FEDERAL STATUTE, WHETHER HIS
INTENT TO MISAPPROPRIATE EXISTED AT THE TIME OF RECEIPT OR WAS FORMED
LATER. 

WE CONSTRUE A CRIMINAL STATUTE.  "IT IS THE LEGISLATURE, NOT THE
COURT, WHICH IS TO DEFINE A CRIME, AND ORDAIN ITS PUNISHMENT."  UNITED
STATES V. WILTBERGER, 5 WHEAT.  76, 95; UNITED STATES V. HALSETH, 342
U.S. 277; KRICHMAN V. UNITED STATES, 256 U.S. 363.  WE ARE MINDFUL, OF
COURSE, THAT, "THOUGH PENAL LAWS ARE TO BE CONSTRUED STRICTLY, THEY ARE
NOT TO BE CONSTRUED SO STRICTLY AS TO DEFEAT THE OBVIOUS INTENTION OF
THE LEGISLATURE."  UNITED STATES V. WILTBERGER, SUPRA, AT 95.  AS MR.
JUSTICE HOLMES PUT IT, "WE AGREE TO ALL THE GENERALITIES ABOUT NOT
SUPPLYING CRIMINAL LAWS WITH WHAT THEY OMIT, BUT THERE IS NO CANON
AGAINST USING COMMON SENSE IN CONSTRUING LAWS AS SAYING WHAT THEY
OBVIOUSLY MEAN."  ROSCHEN V. WARD, 279 U.S. 337, 339. 

AN EXAMINATION OF THE LEGISLATIVE HISTORY CONFIRMS THAT A LITERAL
CONSTRUCTION OF THIS STATUTE DOES NO VIOLENCE TO COMMON SENSE.  WHEN
CONGRESS ENACTED SEC. 302 ITS PURPOSE WAS NOT TO ASSIST THE STATES IN
PUNISHING CRIMINAL CONDUCT TRADITIONALLY WITHIN THEIR JURISDICTION, BUT
TO DEAL WITH PROBLEMS PECULIAR TO COLLECTIVE BARGAINING.  THE PROVISION
WAS ENACTED AS PART OF A COMPREHENSIVE REVISION OF FEDERAL LABOR POLICY
IN THE LIGHT OF EXPERIENCE ACQUIRED DURING THE YEARS FOLLOWING PASSAGE
OF THE WAGNER ACT, AND WAS AIMED AT PRACTICES WHICH CONGRESS CONSIDERED
INIMICAL TO THE INTEGRITY OF THE COLLECTIVE BARGAINING PROCESS. 

THROUGHOUT THE DEBATES IN THE SEVENTY-NINTH AND EIGHTIETH CONGRESSES
THERE WAS NOT THE SLIGHTEST INDICATION THAT SEC. 302 WAS INTENDED TO
DUPLICATE STATE CRIMINAL LAWS.  (FN6)  THOSE MEMBERS OF CONGRESS WHO
SUPPORTED THE AMENDMENT WERE CONCERNED WITH CORRUPTION OF COLLECTIVE
BARGAINING THROUGH BRIBERY OF EMPLOYEE REPRESENTATIVES BY EMPLOYERS,
(FN7) WITH EXTORTION BY EMPLOYEE REPRESENTATIVES, (FN8) AND WITH THE
POSSIBLE ABUSE BY UNION OFFICERS OF THE POWER WHICH THEY MIGHT ACHIEVE
IF WELFARE FUNDS WERE LEFT TO THEIR SOLE CONTROL.  CONGRESSIONAL
ATTENTION WAS FOCUSSED PARTICULARLY UPON THE LATTER PROBLEM BECAUSE OF
THE DEMANDS WHICH HAD THEN RECENTLY BEEN MADE BY A LARGE INTERNATIONAL
UNION FOR THE ESTABLISHMENT OF A WELFARE FUND TO BE FINANCED BY
EMPLOYERS' CONTRIBUTIONS AND ADMINISTERED EXCLUSIVELY BY UNION
OFFICIALS.  SEE UNITED STATES V. RYAN, 350 U.S. 299. 

CONGRESS BELIEVED THAT IF WELFARE FUNDS WERE ESTABLISHED WHICH DID
NOT DEFINE WITH SPECIFICITY THE BENEFITS PAYABLE THEREUNDER, A
SUBSTANTIAL DANGER EXISTED THAT SUCH FUNDS MIGHT BE EMPLOYED TO
PERPETUATE CONTROL OF UNION OFFICERS, FOR POLITICAL PURPOSES, OR EVEN
FOR PERSONAL GAIN.  SEE 92 CONG. REC. 4892-4894, 4899, 5181, 5345-5346;
S. REP. NO. 105, 80TH CONG., 1ST SESS., AT 52; 93 CONG. REC. 4678, 4746
4747.  TO REMOVE THESE DANGERS, SPECIFIC STANDARDS WERE ESTABLISHED TO
ASSURE THAT WELFARE FUNDS WOULD BE ESTABLISHED ONLY FOR PURPOSES WHICH
CONGRESS CONSIDERED PROPER AND EXPENDED ONLY FOR THE PURPOSES FOR WHICH
THEY WERE ESTABLISHED.  SEE COX, SOME ASPECTS OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, 61 HARV. L. REV. 274, 290.  CONTINUING COMPLIANCE
WITH THESE STANDARDS IN THE ADMINISTRATION OF WELFARE FUNDS WAS MADE
EXPLICITLY ENFORCEABLE IN FEDERAL DISTRICT COURTS BY CIVIL PROCEEDINGS
UNDER SEC. 302(E).  (FN9)  THE LEGISLATIVE HISTORY IS DEVOID OF ANY
SUGGESTION THAT DEFALCATING TRUSTEES WERE TO BE HELD ACCOUNTABLE UNDER
FEDERAL LAW, EXCEPT BY WAY OF THE INJUNCTIVE REMEDY PROVIDED IN THAT
SUBSECTION. 

WITHOUT DOUBT THE PETITIONER'S CONDUCT WAS REPREHENSIBLE AND
IMMORAL.  IT CAN BE ASSUMED ALSO THAT HE OFFENDED LOCAL CRIMINAL LAW. 
BUT, FOR THE REASONS STATED, WE HOLD THAT HE DID NOT CRIMINALLY VIOLATE
SEC. 302(B) OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947.  REVERSED. 

FN1  THE RELEVANT TEXT OF SEC. 302(C), AS IT APPEARS IN 29 U.S.C.
SEC. 186(C) IS AS FOLLOWS: "(C) THE PROVISIONS OF THIS SECTION SHALL
NOT BE APPLICABLE  ...  (5) WITH RESPECT TO MONEY OR OTHER THING OF
VALUE PAID TO A TRUST FUND ESTABLISHED BY SUCH REPRESENTATIVE, FOR THE
SOLE AND EXCLUSIVE BENEFIT OF THE EMPLOYEES OF SUCH EMPLOYER, AND THEIR
FAMILIES AND DEPENDENTS (OR OF SUCH EMPLOYEES, FAMILIES, AND DEPENDENTS
JOINTLY WITH THE EMPLOYEES OF OTHER EMPLOYERS MAKING SIMILAR PAYMENTS,
AND THEIR FAMILIES AND DEPENDENTS):  PROVIDED, THAT (A) SUCH PAYMENTS
ARE HELD IN TRUST FOR THE PURPOSE OF PAYING, EITHER FROM PRINCIPAL OR
INCOME OR BOTH, FOR THE BENEFIT OF EMPLOYEES, THEIR FAMILIES AND
DEPENDENTS, FOR MEDICAL OR HOSPITAL CARE, PENSIONS ON RETIREMENT OR
DEATH OF EMPLOYEES, COMPENSATION FOR INJURIES OR ILLNESS RESULTING FROM
OCCUPATIONAL ACTIVITY OR INSURANCE TO PROVIDE ANY OF THE FOREGOING, OR
UNEMPLOYMENT BENEFITS OR LIFE INSURANCE, DISABILITY AND SICKNESS
INSURANCE, OR ACCIDENT INSURANCE; (B) THE DETAILED BASIS ON WHICH SUCH
PAYMENTS ARE TO BE MADE IS SPECIFIED IN A WRITTEN AGREEMENT WITH THE
EMPLOYER, AND EMPLOYEES AND EMPLOYERS ARE EQUALLY REPRESENTED IN THE
ADMINISTRATION OF SUCH FUND, TOGETHER WITH SUCH NEUTRAL PERSONS AS THE
REPRESENTATIVES OF THE EMPLOYERS AND THE REPRESENTATIVES OF THE
EMPLOYEES MAY AGREE UPON AND IN THE EVENT THE EMPLOYER AND EMPLOYEE
GROUPS DEADLOCK ON THE ADMINISTRATION OF SUCH FUND AND THERE ARE NO
NEUTRAL PERSONS EMPOWERED TO BREAK SUCH DEADLOCK, SUCH AGREEMENT
PROVIDES THAT THE TWO GROUPS SHALL AGREE ON AN IMPARTIAL UMPIRE TO
DECIDE SUCH DISPUTE, OR IN EVENT OF THEIR FAILURE TO AGREE WITHIN A
REASONABLE LENGTH OF TIME, AN IMPARTIAL UMPIRE TO DECIDE SUCH DISPUTE
SHALL, ON PETITION OF EITHER GROUP, BE APPOINTED BY THE DISTRICT COURT
OF THE UNITED STATES FOR THE DISTRICT WHERE THE TRUST FUND HAS ITS
PRINCIPAL OFFICE, AND SHALL ALSO CONTAIN PROVISIONS FOR AN ANNUAL AUDIT
OF THE TRUST FUND, A STATEMENT OF THE RESULTS OF WHICH SHALL BE
AVAILABLE FOR INSPECTION BY INTERESTED PERSONS AT THE PRINCIPAL OFFICE
OF THE TRUST FUND AND AT SUCH OTHER PLACES AS MAY BE DESIGNATED IN SUCH
WRITTEN AGREEMENT; AND (C) SUCH PAYMENTS AS ARE INTENDED TO BE USED FOR
THE PURPOSE OF PROVIDING PENSIONS OR ANNUITIES FOR EMPLOYEES ARE MADE
TO A SEPARATE TRUST WHICH PROVIDES THAT THE FUNDS HELD THEREIN CANNOT
BE USED FOR ANY PURPOSE OTHER THAN PAYING SUCH PENSIONS OR ANNUITIES." 

FN2  SENTENCE WAS IMPOSED UNDER AUTHORITY OF SEC. 302(D) OF THE ACT,
WHICH PROVIDES: "(D) ANY PERSON WHO WILLFULLY VIOLATES ANY OF THE
PROVISIONS OF THIS SECTION SHALL, UPON CONVICTION THEREOF, BE GUILTY OF
A MISDEMEANOR AND BE SUBJECT TO A FINE OF NOT MORE THAN $10,000 OR TO
IMPRISONMENT FOR NOT MORE THAN ONE YEAR, OR BOTH  ...  ." 

FN3  THE FUND WAS TO BE IDENTICAL IN AMOUNT AND PURPOSE TO A WELFARE
FUND WHICH HAD BEEN CREATED IN 1952 UNDER A PREVIOUS COLLECTIVE
BARGAINING AGREEMENT.  THE PETITIONER HAD ALSO BEEN THE UNION
REPRESENTATIVE ON THE COMMITTEE WHICH ADMINISTERED THAT FUND. 

FN4  COMPARE S. 3974, SEC. 109(A) 85TH CONG., 2D SESS., THE SO-CALLED
KENNEDY-IVES BILL, WHICH WOULD HAVE PROVIDED CRIMINAL PENALTIES OF UP
TO FIVE YEARS' IMPRISONMENT AND A FINE OF $10,000 FOR "ANY PERSON WHO
EMBEZZLES, STEALS, OR UNLAWFULLY AND WILLFULLY ABSTRACTS OR CONVERTS TO
HIS OWN USE OR THE USE OF ANOTHER ANY OF THE MONEYS, FUNDS, SECURITIES,
PROPERTY, OR OTHER ASSETS OF AN ORGANIZATION WHICH IS EXEMPT FROM
TAXATION UNDER SECTION 501(A) OF THE INTERNAL REVENUE CODE OF 1954 OF
WHICH HE IS AN OFFICER OR BY WHOM HE IS EMPLOYED DIRECTLY OR INDIRECTLY
...  ." 

FN5  IN ARGUMENT TO THE TRIAL COURT, GOVERNMENT COUNSEL MADE THE
FOLLOWING STATEMENT: "THE EMPLOYER IN THIS CASE, I WOULD LIKE TO SAY,
COMPLIED WITH THE LAW.  THE EMPLOYER SET UP A WELFARE FUND IN
ACCORDANCE WITH THE LAW, AND IN ACCORDANCE WITH THE TESTIMONY BY MR.
GOYCO AND OTHER DOCUMENTARY EVIDENCE, THE LETTER TO THE BANCO DE PONCE,
THE EMPLOYER DID ALL IT COULD TO MAKE COMPLIANCE WITH THE LAW, BECAUSE
THERE COULD BE A LAWFUL WELFARE FUND, SO THAT'S AS FAR AS THE EMPLOYER
IS CONCERNED."    FN6  SECTION 302 HAD ITS ORIGIN IN AN AMENDMENT TO
THE CASE BILL, H.R. 4908, 79TH CONG., 2D SESS., PROPOSED BY SENATOR
BYRD, 92 CONG. REC. 4809, WHICH PROHIBITED PAYMENT BY AN EMPLOYER, OR
RECEIPT BY A REPRESENTATIVE, OF ANY MONEY OR OTHER THING OF VALUE
UNLESS THE PAYMENT WAS FOR WAGES OR FOR UNION DUES WITHHELD BY THE
EMPLOYER UNDER A CHECKOFF AGREEMENT.  AFTER SEVERAL MODIFICATIONS,
INCLUDING ONE SUBSTANTIALLY SIMILAR TO SUBSECTION (C)(5) WHICH WAS
PROPOSED BY SENATORS TAFT AND BALL, THE AMENDMENT WAS AGREED TO BY THE
SENATE, 92 CONG. REC. 5521-5522, AND THE CASE BILL PASSED.  92 CONG.
REC. 5739.  THE HOUSE ACCEPTED THE SENATE AMENDMENT, 92 CONG. REC.
5946, BUT THE PRESIDENT VETOED THE BILL, 92 CONG. REC.  6674-6678, AND
IT FAILED OF PASSAGE OVER HIS VETO.  92 CONG. REC. 6678. 

IN THE EIGHTIETH CONGRESS THE SENATE COMMITTEE ON LABOR AND PUBLIC
WELFARE REPORTED OUT AN ORIGINAL BILL, S. 1126, CONTAINING NO REFERENCE
TO PAYMENTS BY AN EMPLOYER TO A REPRESENTATIVE OTHER THAN THAT WHICH
HAD BEEN CONTAINED IN SEC. 8(2) OF THE WAGNER ACT.  A MINORITY OF THE
COMMITTEE, INCLUDING SENATORS TAFT AND BALL, FILED THEIR "SUPPLEMENTAL
VIEWS" IN WHICH THEY STATED THEIR INTENTION TO OFFER FROM THE FLOOR "AN
AMENDMENT REINSERTING IN THE BILL A PROVISION REGARDING SO-CALLED
WELFARE FUNDS SIMILAR TO THE SECTION IN THE CASE BILL APPROVED BY THE
SENATE AT THE LAST SESSION."  S. REP. NO. 105, 80TH CONG., 1ST SESS.,
P. 52.  THE AMENDMENT WAS ADOPTED BY THE SENATE, 93 CONG. REC. 4754,
ACCEPTED BY THE CONFERENCE COMMITTEE, H.R. REP. NO. 510, 80TH CONG.,
1ST SESS., PP. 24-25, 67, AND ENACTED AS SEC. 302 OF THE LABOR
MANAGEMENT RELATIONS ACT. 

FN7  IN EXPLAINING THE NECESSITY FOR ADOPTION OF THE AMENDMENT WHICH
HE OFFERED TO THE CASE BILL, SENATOR BYRD STATED:  "MY AMENDMENT WOULD
PREVENT AN EMPLOYER FROM PAYING A ROYALTY TO THE REPRESENTATIVE OF A
UNION.  HE WOULD BE CLEARLY LIABLE, UNDER THE PROVISIONS OF THIS
AMENDMENT, IF HE PAID A ROYALTY OR OTHER MONEY TO THE REPRESENTATIVE OF
A LABOR UNION, THE PURPOSE OF WHICH WAS TO BRIBE THAT REPRESENTATIVE." 
92 CONG. REC. 4893.  SEE ALSO 92 CONG. REC. 5428; 93 CONG. REC. 4678. 

FN8  SENATOR TAFT, IN SPEAKING FOR THE AMENDMENT TO S. 1126 WHICH HAD
PREVIOUSLY BEEN PROPOSED ON THE FLOOR OF THE SENATE BY SENATOR BALL,
STATED THAT IT WAS INTENDED TO DEAL WITH "EXTORTION OR A CASE WHERE THE
UNION REPRESENTATIVE IS SHAKING DOWN THE EMPLOYER."  93 CONG. REC.
4746. 

FN9  "(E) THE DISTRICT COURTS OF THE UNITED STATES AND THE UNITED
STATES COURTS OF THE TERRITORIES AND POSSESSIONS SHALL HAVE
JURISDICTION, FOR CAUSE SHOWN, AND SUBJECT TO THE PROVISIONS OF SECTION
381 OF TITLE 28 (RELATING TO NOTICE TO OPPOSITE PARTY) TO RESTRAIN
VIOLATIONS OF THIS SECTION, WITHOUT REGARD TO THE PROVISIONS OF SECTION
17 OF TITLE 15 AND SECTION 52 OF THIS TITLE, AND THE PROVISIONS OF

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
DOUGLAS AND MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

THE COURT SETS PETITIONER FREE.  IN SO DOING, IT ASSUMES THAT HE
VIOLATED LOCAL CRIMINAL LAW, BUT HOLDS THAT HE DID NOT OFFEND SEC.
302(B) OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947.  IT IS ADMITTED
THAT THE PETITIONER, AS A REPRESENTATIVE OF EMPLOYEES WHO ARE EMPLOYED
IN AN INDUSTRY AFFECTING COMMERCE, ACCEPTED TWO CHECKS FOR $7,500 EACH
FROM EMPLOYERS.  INSTEAD OF SUBSEQUENTLY DEPOSITING THESE CHECKS IN THE
EXISTING WELFARE FUND BANK ACCOUNT, WITHDRAWALS FROM WHICH REQUIRED THE
JOINT SIGNATURES OF THE PETITIONER AND A REPRESENTATIVE OF THE
EMPLOYERS, HE DEPOSITED THE CHECKS IN ANOTHER BANK.  SIX DAYS
THEREAFTER HE PRESENTED TO THE LATTER BANK A SPURIOUS RESOLUTION
AUTHORIZING WITHDRAWALS FROM THIS ACCOUNT UPON PETITIONER'S SIGNATURE
ALONE.  ADMITTEDLY PETITIONER USED THE MONEY IN THIS ACCOUNT FOR HIS
OWN PERSONAL PURPOSES.  SEVERAL MONTHS THEREAFTER THE BALANCE IN THE
ACCOUNT WAS TRANSFERRED TO ANOTHER ACCOUNT IN ANOTHER BANK AND THE
FUNDS THEREFROM WERE LIKEWISE USED FOR NONWELFARE PURPOSES.  THE THEORY
OF THE COURT SEEMS TO BE THAT SINCE THE EMPLOYERS ISSUED THE TWO CHECKS
IN GOOD FAITH, WITH THE INTENT THAT THE MONEY GO TO THE WELFARE FUND OF
THE UNION, THE RECEIPT OF THE CHECKS WAS THERFORE FOR THE SOLE PURPOSE
OF COMPLETING THIS LAWFUL PAYMENT.  HENCE, THE COURT REASONS, "WHAT THE
PETITIONER RECEIVED WERE CHECKS 'PAID TO A TRUST FUND.'  THE
TRANSACTION, THEREFORE, WAS WITHIN THE PRECISE LANGUAGE OF SEC. 302(C),
AND THUS WAS NOT A VIOLATION OF SEC. 302(B)."  THE COURT FURTHER STATES
THAT THIS CONCLUSION WOULD FOLLOW "WHETHER HIS (PETITIONER'S) INTENT TO
MISAPPROPRIATE EXISTED AT THE TIME OF RECEIPT OR WAS FORMED LATER." 

IT IS TRUE THAT THE EMPLOYERS HAD WRITTEN ON THE VOUCHERS ATTACHED TO
THE CHECKS, "COVERING: WELFARE FUND FOR THE YEAR 1953, IN ACCORDANCE
WITH CONTRACT SIGNED ON FEB. 21, 1953."  THE COURT SAYS THAT BY THESE
TAGS YOU SHALL KNOW THE NATURE OF THIS FUND.  I THINK THE COURT HAS
REACHED THE WRONG RESULT BY A FAILURE TO DISTINGUISH BETWEEN THE LAWFUL
FUND SET UP UNDER THE COLLECTIVE BARGAINING AGREEMENT, AND THE SPURIOUS
FUND SET UP BY PETITIONER. 

IT IS WELL THAT WE REVIEW THE UNCONTRADICTED EVIDENCE.  THE
BARGAINING AGREEMENT PROVIDED THAT EACH EMPLOYER SHOULD ESTABLISH A
$15,000 WELFARE FUND WHICH "SHALL BE USED TO FURNISH AND PROVIDE THE
WORKERS OF THE EMPLOYER COVERED BY THIS AGREEMENT AND THE MEMBERS OF
THEIR DIRECT FAMILY" WITH CERTAIN WELFARE BENEFITS.  IT FURTHER
PROVIDED THAT THE FUND SHOULD BE ADMINISTERED BY A COMMITTEE APPOINTED
BY MUTUAL AGREEMENT.  THIS COMMITTEE WAS COMPOSED OF THE PETITIONER AND
THE REPRESENTATIVE OF THE EMPLOYERS.  THE EVIDENCE SHOWED THAT THE FUND
WAS TO BE IDENTICAL IN AMOUNT AND PURPOSE TO A WELFARE FUND WHICH HAD
BEEN CREATED IN 1952 IN A PREVIOUS COLLECTIVE BARGAINING AGREEMENT.  AN
EXISTING BANK ACCOUNT AT THE BANCO DE PONCE CONTAINED THE BALANCE LEFT
OVER FROM THE 1952 WELFARE FUND.  IN PREVIOUS YEARS THE EMPLOYER
CONTRIBUTIONS TO THE WELFARE FUND HAD BEEN DEPOSITED DIRECTLY BY THE
EMPLOYERS INTO THIS WELFARE ACCOUNT.  IT WAS A JOINT ACCOUNT
AUTHORIZING WITHDRAWAL OF FUNDS ONLY ON THE JOINT SIGNATURE OF THE
EMPLOYER REPRESENTATIVE AS WELL AS THE PETITIONER. 

IT APPEARS, HOWEVER, THAT AFTER THE SIGNING OF THE 1953 AGREEMENT THE
PETITIONER REQUESTED THE EMPLOYERS TO ISSUE THE CHECKS AND GIVE THEM TO
HIM ON THE RUSE THAT HE WOULD LIKE TO EXHIBIT THEM TO THE UNION MEETING
WHICH WAS TO BE HELD THAT EVENING.  THE EMPLOYERS ISSUED AND DELIVERED
THE CHECKS TO THE PETITIONER FOR DEPOSIT IN THE EXISTING TRUST FUND. 
THE CHECKS WERE MADE PAYABLE, HOWEVER, TO THE UNION, RATHER THAN TO THE
WELFARE FUND; AND, AS I HAVE STATED, THE PETITIONER OPENED UP A NEW
BANK ACCOUNT IN THE NATIONAL CITY BANK INSTEAD OF DEPOSITING THE CHECKS
IN THE OLD TRUST FUND ACCOUNT.  THIS NEW ACCOUNT WAS IN THE NAME OF THE
UNION, AND, WHILE IT WAS LABELED AS A WELFARE FUND, WITHDRAWALS
THEREFROM COULD BE MADE ON THE SIGNATURE OF THE PETITIONER ALONE. 
AFTER SO ESTABLISHING THE ACCOUNT UNDER HIS EXCLUSIVE CONTROL,
PETITIONER THEN WITHDREW LARGE SUMS OF MONEY FOR HIS PERSONAL USE. 

THE INDICTMENT CHARGED PETITIONER WITH RECEIVING THE $15,000 FOR HIS
OWN USE AND SPECIFICALLY CHARGED "NOR WAS SUCH SUM OF MONEY RECEIVED AS
A PAYMENT TO A TRUST FUND."  AS THE COURT SAYS, THE EVIDENCE PROPERLY
SUPPORTS "AN INFERENCE THAT THE PETITIONER'S PURPOSE FROM THE OUTSET
WAS TO APPROPRIATE THE TWO CHECKS FOR HIS OWN USE."  THE FACT OF THE
MATTER IS THAT THE EVIDENCE SHOWS THAT THE PETITIONER'S ACTION IN SO
RECEIVING THE CHECKS WAS CONTRARY TO THE AGREEMENT BETWEEN THE PARTIES
AND IN NO WISE COMPLIED WITH PROVISIONS OF SEC. 302(C)(5).  IN THE
LIGHT OF THE CIRCUMSTANCES, AS THE JURY FOUND, THERE WAS NO PAYMENT TO
A TRUST FUND AS SPECIFICALLY REQUIRED BY THE PROVISIONS OF THE ACT. 

I AM SURE THAT THE COURT AGREES THAT THE PETITIONER'S CONDUCT CAME
WITHIN THE "BROAD PROHIBITION" OF SEC. 302(B).  THE ONLY QUESTION,
THEREFORE, IS WHETHER HE MAY PROPERLY BE EXCULPATED BY THE PROVISIONS
OF SUBSECTION (C)(5), WHICH IS QUOTED IN FULL IN THE MARGIN.  (FN1)
TWO CONCLUSIONS, IMPLICITLY DRAWN BY THE JURY, EMERGE AS INDISPUTABLE
WHEN THE EVIDENCE IS COMPARED WITH THIS SUBSECTION.  IN THE FIRST
PLACE, THE STATUTORY EXCEPTION APPLIES ONLY WHEN THE MONEY OR OTHER
THING OF VALUE IS "PAID TO A TRUST FUND," AND IT IS CLEAR THAT INSOFAR
AS A LAWFUL FUND WAS IN EXISTENCE THE CHECKS WERE NOT "PAID" TO IT.
THEY WERE MADE OUT PAYABLE TO THE UNION.  NEITHER THE CHECKS NOR THE
MONEY FROM THEM EVER CAME NEAR THE BONA FIDE TRUST FUND ACCOUNT AT THE
BANCO DE PONCE.  FROM THE MOMENT THEY WERE RECEIVED BY PETITIONER, HE
HAD COMPLETE CONTROL OVER THEM.  (FN2) 

SECONDLY, EVEN A CASUAL READING OF THE SUBSECTION SHOWS, AS I AM SURE
THE COURT ITSELF WOULD AGREE, THAT THE SPURIOUS FUND ESTABLISHED BY THE
PETITIONER IN THE NATIONAL CITY BANK FAILED TO COMPLY WITH THE STATUTE
IN ALMOST EVERY RESPECT.  SINCE THE CHECKS WERE DEPOSITED IN A UNION
ACCOUNT AND SUBJECT TO THE CONTROL OF PETITIONER, THE PAYMENTS WERE NOT
HELD IN TRUST, AS REQUIRED BY THE SUBSECTION.  MOREOVER, THE FUND WHICH
HE CREATED BY DEPOSITING THE CHECKS WAS NOT SUBJECT TO THE
ADMINISTRATION OF BOTH THE EMPLOYEES AND THE EMPLOYERS, BUT WAS SUBJECT
TO THE SOLE CONTROL OF THE PETITIONER.  AS THE JUDGE INSTRUCTED THE
JURY, "A PLAN DOES NOT EXIST, LAWFULLY EXIST, UNTIL IT MEETS ALL THOSE
REQUIREMENTS" OF THE SUBSECTION.  SINCE THE SOLE PURPOSE OF THE
EXCEPTION AS SET OUT IN THE ACT WAS TO PERMIT THE CREATION OF A BONA
FIDE TRUST FUND, IT IS OBVIOUS THAT THE PURPOSES OF THE ACT WERE NOT
COMPLIED WITH HERE BECAUSE PETITIONER ESTABLISHED NO TRUST FUND
WHATSOEVER.  ON THE CONTRARY, THE CHECKS WERE MADE PAYABLE TO, AND
DEPOSITED IN THE NAME OF, THE UNION OF WHICH THE PETITIONER WAS THE
PRESIDENT.  HIS WAS THE ONLY AUTHORIZED SIGNATURE PERMITTING
WITHDRAWALS FROM THE FUND.  IN FACT, THE RECEIPT OF THE CHECKS BY THE
PETITIONER AS TRUST FUND MONEYS WAS MERELY A SHAM.  IT DOES NOT MATTER
WHAT THE INTENT OF THE EMPLOYERS WAS IN DELIVERING THE CHECKS SINCE, AS
THE COURT ITSELF SAYS, THE STATUTE DOES NOT REQUIRE MUTUALITY OF
GUILT.  (FN3)  THE PETITIONER, BY RECEIVING THE CHECKS FROM THE
EMPLOYERS AND THROUGH ARTIFICE AND DECEIT, HAS DEPRIVED THE EMPLOYEES
OF THEIR BENEFITS AND STANDS GUILTY UNDER SEC. 302(B) OF THE ACT. 

MOREOVER, THE LEGISLATIVE HISTORY SHOWS THAT THAT WAS THE SPECIFIC
INTENT OF THE CONGRESS.  I NEED ONLY QUOTE ONE STATEMENT OF THE
MANAGERS OF THE BILL IN THE SENATE: 

"UNLESS WE MAKE SURE THAT SUCH TRUST FUNDS, WHEN THEY ARE
ESTABLISHED, ARE REALLY TRUST FUNDS  ...  FOR THE BENEFIT TO EMPLOYEES
SPECIFIED IN THE AGREEMENT, THERE IS VERY GRAVE DANGER THAT THE FUNDS
WILL BE USED FOR THE PERSONAL GAIN OF UNION LEADERS  ...  ."  93 CONG.
REC. 4678. 

FURTHERMORE, THE COURT ITSELF RECOGNIZES THIS TO BE THE PURPOSE OF
THE CONGRESS IN ENACTING THE SUBSECTION.  AS THE COURT SAYS: 

"CONGRESS BELIEVED THAT IF WELFARE FUNDS WERE ESTABLISHED WHICH DID
NOT DEFINE WITH SPECIFICITY THE BENEFITS PAYABLE THEREUNDER, A
SUBSTANTIAL DANGER EXISTED THAT SUCH FUNDS MIGHT BE EMPLOYED TO
PERPETUATE CONTROL OF UNION OFFICERS, FOR POLITICAL PURPOSES, OR EVEN
FOR PERSONAL GAIN  ...  .  TO REMOVE THESE DANGERS, SPECIFIC STANDARDS
WERE ESTABLISHED TO ASSURE THAT WELFARE FUNDS WOULD BE ESTABLISHED ONLY
FOR PURPOSES WHICH CONGRESS CONSIDERED PROPER AND EXPENDED ONLY FOR
PURPOSES FOR WHICH THEY WERE ESTABLISHED." 

UNFORTUNATELY, THE COURT HAS CONVERTED THE "SUBSTANTIAL DANGER" INTO
AN IMMUNITY BATH.  SECTION 302(B) IS IN ALL PRACTICAL EFFECT REPEALED. 
ALL THAT LABOR RACKETEERS, OR, FOR THAT MATTER, EMPLOYERS AS WELL, NEED
DO IS TO NEGOTIATE AN AGREEMENT CONTAINING A QUALIFYING "WELFARE FUND"
AND THEN MAKE SURE THAT THE VOUCHERS ON THE EMPLOYER CHECKS CONTAIN
SOME KIND OF NOTATION THAT THE MONEY IS PAID FOR THAT FUND.  ALTHOUGH
THE COURT SAYS, "BOTH WOULD BE GUILTY IF THE PAYMENT WERE OSTENSIBLY
MADE FOR ONE OF THE LAWFUL PURPOSES SPECIFIED IN SEC. 302(C) IF BOTH
KNEW THAT SUCH A PURPOSE WAS MERELY A SHAM," IT IS CLEAR THAT THE
INJECTION OF THIS SUBTLE AND ELUSIVE MENTAL ELEMENT OF DUPLICITY IS
ENOUGH TO MAKE SUCCESSFUL PROSECUTION NEXT TO IMPOSSIBLE. 

NOR IS THE FACT THAT THE PETITIONER MIGHT BE PROSECUTED UNDER STATE
LAW ANY ANSWER TO THE PROBLEM.   IN A LONG LINE OF CASES COMING TO THIS
COURT INVOLVING INDUSTRIAL CONTROVERSIES WHERE THE STATE EXERCISED
AUTHORITY, IT HAS BEEN HELD THAT THE AREA INVOLVED HAD BEEN PRE-EMPTED
BY THE NATIONAL LABOR RELATIONS ACT AND THE LABOR MANAGEMENT RELATIONS
ACT.  SEE WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468 (1955).  IT IS A
STRANGE CONTRADICTION HERE FOR THE COURT TO FORCE EMPLOYEES TO GO TO
THE STATE COURTS FOR REDRESS OF THIS MOST IMPORTANT SANCTION OF THE
LABOR MANAGEMENT RELATIONS ACT.  PETITIONER ARGUES, AND THE COURT
SUSTAINS HIM, THAT HE CAN ONLY BE PROSECUTED FOR EMBEZZLEMENT, A FELONY
UNDER THE LAWS OF PUERTO RICO; (FN4) THAT HE CANNOT BE CONVICTED OF
THIS MISDEMEANOR UNDER THE TAFT-HARTLEY LAW.  (FN5)  THE OPINION TODAY
MAY MAKE THIS COMMON, BUT IT DOES NOT MAKE IT SENSE.   I WOULD AFFIRM. 

FN1  "(C)  THE PROVISIONS OF THIS SECTION SHALL NOT BE APPLICABLE
...  (5) WITH RESPECT TO MONEY OR OTHER THING OF VALUE PAID TO A TRUST
FUND ESTABLISHED BY SUCH REPRESENTATIVE, FOR THE SOLE AND EXCLUSIVE
BENEFIT OF THE EMPLOYEES OF SUCH EMPLOYER, AND THEIR FAMILIES AND
DEPENDENTS (OR OF SUCH EMPLOYEES, FAMILIES, AND DEPENDENTS JOINTLY WITH
THE EMPLOYEES OF OTHER EMPLOYERS MAKING SIMILAR PAYMENTS, AND THEIR
FAMILIES AND DEPENDENTS):  PROVIDED, THAT (A) SUCH PAYMENTS ARE HELD IN
TRUST FOR THE PURPOSE OF PAYING, EITHER FROM PRINCIPAL OR INCOME OR
BOTH, FOR THE BENEFIT OF EMPLOYEES, THEIR FAMILIES AND DEPENDENTS, FOR
MEDICAL OR HOSPITAL CARE, PENSIONS ON RETIREMENT OR DEATH OF EMPLOYEES,
COMPENSATION FOR INJURIES OR ILLNESS RESULTING FROM OCCUPATIONAL
ACTIVITY OR INSURANCE TO PROVIDE ANY OF THE FOREGOING, OR UNEMPLOYMENT
BENEFITS OR LIFE INSURANCE, DISABILITY AND SICKNESS INSURANCE, OR
ACCIDENT INSURANCE; (B) THE DETAILED BASIS ON WHICH SUCH PAYMENTS ARE
TO BE MADE IS SPECIFIED IN A WRITTEN AGREEMENT WITH THE EMPLOYER, AND
EMPLOYEES AND EMPLOYERS ARE EQUALLY REPRESENTED IN THE ADMINISTRATION
OF SUCH FUND, TOGETHER WITH SUCH NEUTRAL PERSONS AS THE REPRESENTATIVES
OF THE EMPLOYERS AND THE REPRESENTATIVES OF THE EMPLOYEES MAY AGREE
UPON AND IN THE EVENT THE EMPLOYER AND EMPLOYEE GROUPS DEADLOCK ON THE
ADMINISTRATION OF SUCH FUND AND THERE ARE NO NEUTRAL PERSONS EMPOWERED
TO BREAK SUCH DEADLOCK, SUCH AGREEMENT PROVIDES THAT THE TWO GROUPS
SHALL AGREE ON AN IMPARTIAL UMPIRE TO DECIDE SUCH DISPUTE, OR IN THE
EVENT OF THEIR FAILURE TO AGREE WITHIN A REASONABLE LENGTH OF TIME, AN
IMPARTIAL UMPIRE TO DECIDE SUCH DISPUTE SHALL, ON PETITION OF EITHER
GROUP, BE APPOINTED BY THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT WHERE THE TRUST FUND HAS ITS PRINCIPAL OFFICE, AND SHALL ALSO
CONTAIN PROVISIONS FOR AN ANNUAL AUDIT OF THE TRUST FUND, A STATEMENT
OF THE RESULTS OF WHICH SHALL BE AVAILABLE FOR INSPECTION BY INTERESTED
PERSONS AT THE PRINCIPAL OFFICE OF THE TRUST FUND AND AT SUCH OTHER
PLACES AS MAY BE DESIGNATED IN SUCH WRITTEN AGREEMENT; AND (C) SUCH
PAYMENTS AS ARE INTENDED TO BE USED FOR THE PURPOSE OF PROVIDING
PENSIONS OR ANNUITIES FOR EMPLOYEES ARE MADE TO A SEPARATE TRUST WHICH
PROVIDES THAT THE FUNDS HELD THEREIN CANNOT BE USED FOR ANY PURPOSE
OTHER THAN PAYING SUCH PENSIONS OR ANNUITIES." 

FN2  IF THE VOUCHER HAD SAID "IN PAYMENT OF 1952 FEDERAL INCOME
TAXES," AND PETITIONER HAD PUT THE CHECKS IN A BANK ACCOUNT LABELED
"UNITED STATES TREASURY," QUERY:  WOULD THE COMPANIES' INCOME TAXES
HAVE BEEN "PAID"? 

FN3  WE IN NOWISE INTIMATE OR SUGGEST THAT THESE EMPLOYERS VIOLATED
THE ACT. 

FN4  LAWS OF PUERTO RICO ANN., TIT. 33, SECS. 1721, 1731, 1683. 

FN5  PETITIONER'S ARGUMENT IN THIS REGARD ALSO SHOWS THAT THIS IS NOT
AN INSTANCE WHERE, EVEN IN THE ABSENCE OF BAD FAITH, A MAN IS SENT TO
JAIL FOR AN INADVERTENT FAILURE TO COMPLY WITH RIGID BOOKKEEPING
REQUIREMENTS.  CF. SAYRE, THE PRESENT SIGNIFICATION OF MENS REA IN THE
CRIMINAL LAW, HARVARD LEGAL ESSAYS (1934), 399, 409. 
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GROCERY DRIVERS UNION LOCAL 848 V. SEVEN UP BOTTLING CO. OF LOS ANGELES
359 U.S. 434 


NO. 169.  DECIDED MAY 4, 1959 - REPORTED BELOW:  49 CAL. 2D 645, 320
P.2D 492. 


APPEAL DISMISSED; CERTIORARI GRANTED; JUDGMENT VACATED AND CAUSE
REMANDED FOR MODIFICATION. 

GROCERY DRIVERS UNION LOCAL 848 ET AL. V. SEVEN UP BOTTLING CO. OF LOS
ANGELES, INC. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS GRANTED.  THE JUDGMENT OF THE SUPREME
COURT OF CALIFORNIA IS VACATED AND THE CAUSE REMANDED FOR MODIFICATION
IN LIGHT OF SAN DIEGO BUILDING TRADES COUNCIL V. GARMON, ANTE, P. 236. 
VACATED AND REMANDED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




ST. PETER'S ROMAN CATHOLIC PARISH V. URBAN REDEVELOPMENT AUTHORITY 359
U.S. 435 


NO. 749.  DECIDED MAY 4, 1959 - APPEAL DISMISSED AND CERTIORARI DENIED -
REPORTED BELOW:  394 PA. 194, 146 A.2D 724. 


ST. PETER'S ROMAN CATHOLIC PARISH V. URBAN REDEVELOPMENT AUTHORITY OF
PITTSBURGH ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, WESTERN DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














MILWAUKIE COMPANY OF JEHOVAH'S WITNESSES V. MULLEN 359 U.S. 436 


NO. 767.  DECIDED MAY 4, 1959 - APPEAL DISMISSED AND CERTIORARI DENIED -
REPORTED BELOW: - ORE.  - , 330 P.2D 5. 


MILWAUKIE COMPANY OF JEHOVAH'S WITNESSES V. MULLEN ET AL. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















MINNEY V. CITY OF AZUSA 359 U.S. 436 


NO. 768.  DECIDED MAY 4, 1959 - APPEAL DISMISSED FOR WANT OF A PROPERLY
PRESENTED FEDERAL QUESTION - REPORTED BELOW:  164 CAL. APP. 2D 12, 330
P.2D 255. 


MINNEY V. CITY OF AZUSA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A PROPERLY PRESENTED FEDERAL
QUESTION. 
..END :















UNITED STATES V. ISTHMIAN STEAMSHIP CO. 359 U.S. 314 


NO. 285.  ARGUED FEBRUARY 25, 1959 - DECIDED APRIL 27, 1959 - 255 F.2D
816, AFFIRMED IN PART AND REVERSED IN PART. 


1.  UNDER THE SUITS IN ADMIRALTY ACT, AS AMENDED, 46 U.S.C. SEC. 741
ET SEQ., RESPONDENT FILED A LIBEL AGAINST THE UNITED STATES IN A
FEDERAL DISTRICT COURT, ALLEGING THAT THE UNITED STATES OWED RESPONDENT
$116,511.44 FOR CARGO TRANSPORTED ON ONE OF RESPONDENT'S SHIPS; THAT
RESPONDENT HAD PRESENTED A BILL FOR THAT AMOUNT; AND THAT THE UNITED
STATES HAD FAILED AND REFUSED TO PAY $115,203.76 WHICH WAS DUE AND
PAYABLE.  THE UNITED STATES FILED AN ANSWER ADMITTING THAT RESPONDENT
HAD SUBMITTED A CLAIM FOR $116,511.44; DENYING THAT THE UNITED STATES
HAD NOT PAID $115,203.76; AND FURTHER ALLEGING THAT THIS SUM HAD BEEN
"PAID" BY APPLICATION AGAINST AN INDEBTEDNESS OF RESPONDENT TO THE
UNITED STATES FOR ADDITIONAL CHARTER HIRE.  RESPONDENT EXCEPTED ON THE
GROUND THAT THE DEFENSIVE MATTER PLEADED DID NOT ARISE "OUT OF THE SAME
CONTRACT, CAUSE OF ACTION OR TRANSACTION FOR WHICH THE LIBEL WAS
FILED," AND MOVED THAT THE EXCEPTED MATTER BE STRICKEN AND THAT
RESPONDENT BE AWARDED "JUDGMENT ON THE PLEADINGS."  THIS MOTION WAS
GRANTED AND RESPONDENT WAS AWARDED A DECREE PRO CONFESSO.  HELD:  THIS
PORTION OF THE JUDGMENT IS SUSTAINED.  PP. 315-319. 

(A)  THE GOVERNMENT'S DEFENSE IS NOT PROPERLY ONE OF "PAYMENT" BUT
ONE OF SETOFF ARISING OUT OF A TRANSACTION UNRELATED TO THE CAUSE OF
ACTION ON WHICH THE LIBEL WAS FILED.  PP. 318-319. 

(B)  IN AN ACTION UNDER THE SUITS IN ADMIRALTY ACT, THE UNITED STATES
MAY NOT DEFEND BY PLEADING AGAINST THE LIBELANT A CLAIM ARISING OUT OF
A SEPARATE AND UNRELATED TRANSACTION BETWEEN THE SAME PARTIES.  PP. 319
322. 

(C) IF THE LAW ON THIS POINT IN ADMIRALTY IS TO BE CHANGED, IT SHOULD
BE BY RULEMAKING OR LEGISLATION AND NOT BY DECISION.  PP. 322-324. 

2.  IN THE FINAL DECREE, THE DISTRICT COURT AWARDED RESPONDENT
INTEREST AT 4% PER ANNUM FROM THE FILING OF THE LIBEL UNTIL THE ENTRY
OF THE DECREE AND AT 4% FROM THE ENTRY OF THE DECREE UNTIL
SATISFACTION, WITH THIS LATTER INTEREST TO BE COMPUTED UPON THE ENTIRE
DECREE, INCLUDING THE INTEREST UP TO THE DATE OF THE DECREE.  HELD:
INSOFAR AS THIS JUDGMENT AWARDED COMPOUND INTEREST FROM THE DATE OF THE
DECREE UNTIL THE DATE OF SATISFACTION, IT WAS IMPROPER AND IS
REVERSED.  PP. 324-325. 

UNITED STATES V. ISTHMIAN STEAMSHIP CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION PRESENTED IN THIS CASE IS WHETHER IN AN ACTION
UNDER THE SUITS IN ADMIRALTY ACT, 41 STAT. 525, AS AMENDED, 46 U.S.C.
SEC. 741 ET SEQ., THE UNITED STATES MAY DEFEND BY PLEADING AGAINST THE
LIBELANT A CLAIM ARISING OUT OF AN UNRELATED TRANSACTION. 

IN 1953, THE S.S. STEELWORKER, A SHIP BELONGING TO THE RESPONDENT,
ISTHMIAN STEAMSHIP COMPANY ("ISTHMIAN"), CARRIED CERTAIN CARGO FOR THE
UNITED STATES.  ISTHMIAN SUBMITTED A BILL OF $116,511.44 FOR THIS
SERVICE.  THE UNITED STATES PAID $1,307.68 BUT WITHHELD THE REMAINING
$115,203.76.  THIS SUM WAS SAID TO HAVE BEEN APPLIED TO AN ALLEGED
INDEBTEDNESS OF ISTHMIAN TO THE UNITED STATES WHICH WAS CLAIMED TO HAVE
ARISEN IN 1946, WHEN THE UNITED STATES, ACTING THROUGH THE WAR SHIPPING
ADMINISTRATION, CHARTERED OUT TO ISTHMIAN EIGHT VESSELS ON A BARE BOAT
BASIS.  SOME DISAGREEMENT AROSE OVER THE AMOUNT OF CHARTER HIRE DUE AND
THE UNITED STATES ASSERTED THAT ISTHMIAN OWED $115,203.76 FOR
ADDITIONAL CHARTER HIRE FOR THE PERIOD FROM MAY 1, 1946, TO JULY 31,
1948.  THE S.S. STEELWORKER WAS NOT ONE OF THE BOATS INVOLVED IN THE
1946 TRANSACTION. 

ISTHMIAN FILED A LIBEL IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK ALLEGING THAT THE UNITED STATES OWED
ISTHMIAN $116,511.44 FOR CARGO TRANSPORTED ON THE S.S. STEELWORKER;
THAT ISTHMIAN HAD PRESENTED A BILL FOR THAT AMOUNT; AND THAT THE UNITED
STATES HAD FAILED AND REFUSED TO PAY $115,203.76 WHICH WAS DUE AND
PAYABLE.  (FN1)  ISTHMIAN MADE NO REFERENCE WHATSOEVER TO THE PARTIES'
DISPUTE OVER ADDITIONAL CHARTER HIRE FOR THE 1946-1948 PERIOD. 

THE UNITED STATES FILED AN ANSWER ADMITTING THAT ISTHMIAN HAD
SUBMITTED A CLAIM FOR $116,511.44; DENYING THAT THE UNITED STATES HAD
NOT PAID $115,203.76; AND FURTHER ALLEGING THAT THIS SUM HAD BEEN
"PAID" BY APPLICATION AGAINST AN INDEBTEDNESS OF ISTHMIAN TO THE UNITED
STATES FOR ADDITIONAL CHARTER HIRE.  SHORTLY BEFORE THIS ANSWER WAS
FILED, THE UNITED STATES FILED A CROSS-LIBEL AGAINST ISTHMIAN SEEKING
RECOVERY OF THE ADDITIONAL CHARTER HIRE OF $115,203.76.  AFTER FILING
THE ANSWER, THE UNITED STATES MOVED TO CONSOLIDATE ITS CROSS-LIBEL WITH
THE ORIGINAL LIBEL ON THE GROUND THAT THE ADDITIONAL CHARTER-HIRE CLAIM
WAS DISPOSITIVE OF BOTH LIBELS. 

ISTHMIAN EXCEPTED TO THE ANSWER OF THE UNITED STATES ON THE GROUND
THAT THE DEFENSIVE MATTER PLEADED THEREIN DID NOT ARISE "OUT OF THE
SAME CONTRACT, CAUSE OF ACTION OR TRANSACTION FOR WHICH THE LIBEL WAS
FILED."  ISTHMIAN MOVED THAT THE EXCEPTED MATTER BE STRICKEN AND ASKED
"JUDGMENT ON THE PLEADINGS." 

THE DISTRICT COURT HELD THAT THE ANSWER SETTING FORTH THE WITHHOLDING
AND APPLICATION OF THE $115,203.76 DID NOT SET FORTH A DEFENSE OF
PAYMENT BUT RATHER WAS A CLAIM OF SETOFF ARISING FROM A SEPARATE
TRANSACTION.  (FN2)  THE DISTRICT COURT THEN HELD THAT SETOFFS ARISING
FROM DISTINCT TRANSACTIONS COULD NOT BE ASSERTED IN ADMIRALTY AND
SUSTAINED ISTHMIAN'S EXCEPTIONS.  SINCE THERE WAS NO LONGER ANY COMMON
ISSUE, CONSOLIDATION OF THE LIBEL AND CROSS-LIBEL WAS DENIED AND
ISTHMIAN WAS AWARDED A DECREE PRO CONFESSO.  134 F. SUPP. 854.  THE
GOVERNMENT'S CROSS-LIBEL IS STILL PENDING. 

THE DISTRICT COURT'S FINAL DECREE AWARDED INTEREST AT 4% PER ANNUM ON
$115,203.76 FROM THE DATE OF THE FILING OF THE LIBEL TO THE DAY OF
DECREE.  THE DISTRICT COURT FURTHER ORDERED THAT INTEREST AT 4% SHOULD
RUN FROM THE DATE OF THE DECREE UNTIL IT WAS PAID.  THIS SECOND 4% WAS
TO BE COMPUTED ON A SUM WHICH INCLUDED THE BASIC RECOVERY, THE COSTS
AWARDED AND THE INTEREST WHICH HAD RUN FROM THE DATE OF THE LIBEL TO
THE DATE OF THE DECREE. 

ON APPEAL, THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  255
F.2D 816.  THE COURT OF APPEALS RELIED ON THE AUTHORITY OF A CASE
DECIDED AT THE SAME TIME AS THE INSTANT CASE, GRACE LINE, INC., V.
UNITED STATES, 255 F.2D 810, WHEREIN IT WAS HELD THAT WITHHOLDING AND
APPLYING DID NOT CONSTITUTE "PAYMENT," BUT, RATHER, SETOFF.  SINCE THE
WITHHOLDING AND APPLYING IN THE INSTANT CASE DID NOT ARISE OUT OF THE
SAME TRANSACTION ON WHICH THE LIBEL WAS BASED, THE COURT OF APPEALS
HELD IT WAS NOT COGNIZABLE IN ADMIRALTY.  THE AWARD OF INTEREST WAS
ALSO UPHELD.  WE GRANTED CERTIORARI PRINCIPALLY TO CONSIDER THE
QUESTION POSED AT THE OUTSET OF THIS OPINION.  358 U.S. 813. 

THE GOVERNMENT PRESSES A THRESHOLD ARGUMENT WHICH, IF ACCEPTED, WOULD
OBVIATE THE NEED TO REACH THE QUESTION POSED AT THE OUTSET OF THIS
OPINION.  WHILE ADMITTING THE CORRECTNESS OF ISTHMIAN'S BILL, THE
GOVERNMENT CLAIMS THAT THE BILL HAS BEEN "PAID" AND ARGUES THAT THE
TRUE NATURE OF THE DISPUTE BETWEEN THE PARTIES CONCERNS CHARTER HIRE
DESPITE THE FACT THAT ISTHMIAN'S LIBEL DOES NOT MENTION THE CHARTER
HIRE DISPUTE.  WE AGREE WITH THE COURTS BELOW THAT THE GOVERNMENT'S
DEFENSE IS NOT PROPERLY ONE OF PAYMENT. 

THE GOVERNMENT RELIES UPON THE ACT OF MARCH 3, 1817, 3 STAT. 366,
WHICH NOW APPEARS IN SIMILAR FORM AS SECTION 305 OF THE BUDGET AND
ACCOUNTING ACT OF 1921, 42 STAT. 24, 31 U.S.C. SEC. 71.  THIS SECTION
PROVIDES THAT THE GENERAL ACCOUNTING OFFICE SHALL SETTLE AND ADJUST ALL
CLAIMS AND DEMANDS BY OR AGAINST THE GOVERNMENT.  THIS IS SAID TO MEAN
THAT WHEN THE GENERAL ACCOUNTING OFFICE ADMINISTRATIVELY SETS ONE CLAIM
OFF AGAINST ANOTHER THAT IS THE SAME AS PAYMENT.  BUT RECOGNIZING THE
GOVERNMENT'S LONG-STANDING POWER TO SET OFF IS FAR DIFFERENT FROM
FINDING THAT THE GOVERNMENT'S SETOFF IS "PAYMENT" WHICH ENABLES THE
GOVERNMENT TO PLEAD IN ADMIRALTY FOREIGN AND UNRELATED TRANSACTIONS. 
SEE UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234, 239; MCKNIGHT V.
UNITED STATES, 13 CT. CL. 292, 306, AFFIRMED, 98 U.S. 179; CLIMATIC
RAINWEAR CO. V. UNITED STATES, 115 CT. CL. 520, 88 F. SUPP. 415, 418. 
IN OTHER SITUATIONS, THE CLAIM OF WITHHOLDING AND APPLYING HAS
TRADITIONALLY BEEN TREATED AS SETOFF.  VIRGINIA-CAROLINA CHEMICAL CO.
V. KIRVEN, 215 U.S. 252, 257-258; MERCHANTS HEAT & LIGHT CO. V. CLOW &
SONS, 204 U.S. 286, 289-290 (A RECOUPMENT CASE); SCAMMON V. KIMBALL, 92
U.S. 362, 367; UNITED STATES V. ECKFORD, 6 WALL.  484.  SEE ALSO 3
WILLISTON, CONTRACTS (REV. ED. 1936), SEC. 887E.  IN THIS CONTEXT,
"PAYMENT" CONNOTES TENDER BY THE DEBTOR WITH THE INTENTION TO SATISFY
THE DEBT COUPLED WITH ITS ACCEPTANCE AS SATISFACTION BY THE CREDITOR. 
SEE LUCKENBACH V. MCCAHAN SUGAR CO., 248 U.S. 139, 149; BRONSON V.
RODES, 7 WALL.  229, 250; SHEEHY V. MANDEVILLE, 6 CRANCH 253, 264;
UNITED STATES V. J.A.J. CONST. CO., 137 F.2D 584, 586. 

TO CONSIDER WITHHOLDING AND APPLYING THE EQUIVALENT OF "PAYMENT"
WOULD HAVE STRANGE CONSEQUENCES.  IN GRACE LINE, INC., V. UNITED
STATES, SUPRA, FOR EXAMPLE, THE GOVERNMENT HAD A CLAIM AGAINST THE
CARRIER WHICH HAD BECOME TIME-BARRED.  THE CARRIER PERFORMED SOME
UNRELATED SERVICES FOR THE UNITED STATES AND THEN BROUGHT SUIT TO
COLLECT.  THE GOVERNMENT CLAIMED THAT IT HAD "PAID" BY WITHHOLDING THE
MONEY AND APPLYING IT TO THE TIME-BARRED CLAIM.  THUS, THE GOVERNMENT
ATTEMPTED TO USE ITS UNIQUE CONCEPT OF "PAYMENT" TO REVIVE A TOTALLY
UNRELATED TIME-BARRED CLAIM. 

WE CAN UNDERSTAND THE GOVERNMENT'S DESIRE TO LITIGATE ALL OF ITS
DISPUTES WITH ISTHMIAN IN ONE LAWSUIT, BUT THAT IS NO WARRANT FOR
ABANDONING THE TRADITIONAL MEANING OF THE DEFENSE OF PAYMENT.  (FN3) 

WE THEREFORE REACH THE QUESTION POSED AT THE OUTSET.  SECTION 3 OF
THE SUITS IN ADMIRALTY ACT, 46 U.S.C. SEC. 743, PROVIDES THAT SUITS
AGAINST THE UNITED STATES UNDER THE ACT SHALL "PROCEED AND SHALL BE
HEARD AND DETERMINED ACCORDING TO THE PRINCIPLES OF LAW AND TO THE
RULES OF PRACTICE OBTAINING IN LIKE CASES BETWEEN PRIVATE PARTIES." 
WITH THIS EXPRESS COMMAND BEFORE US, WE MUST ASCERTAIN WHETHER
ADMIRALTY PRACTICE PERMITS PRIVATE PARTIES TO DEFEND BY SETTING UP
CLAIMS ARISING OUT OF SEPARATE AND UNRELATED TRANSACTIONS BETWEEN THE
PARTIES. 

TRADITIONALLY, ADMIRALTY HAS NARROWLY CIRCUMSCRIBED THE FILING OF
UNRELATED CROSS-LIBELS AND DEFENSES.  THE FIRST AMERICAN CASE
CONSIDERING THIS PROBLEM APPEARS TO BE WILLARD V. DORR, 29 FED. CAS.
NO. 17,680 (1823), IN WHICH JUSTICE STORY SITTING AS CIRCUIT JUSTICE
REFUSED TO PERMIT THE ATTEMPTED SETOFF.  SINCE THAT EARLY HOLDING
VARIOUS REASONS HAVE BEEN OFFERED FOR REFUSAL TO ENTERTAIN UNRELATED
DEFENSES:  PROTECTION OF THE SEAMAN'S WAGE CLAIMS; (FN4) PRESERVATION
OF RELATIVELY SIMPLE PROCEEDINGS NOT AFFECTING THIRD-PARTY RIGHTS;
(FN5) AND THE RECOGNITION THAT ALLOWING CROSS-LIBELS MIGHT DEPRIVE
LITIGANTS OF JURY TRIALS TO WHICH THEY WOULD OTHERWISE BE ENTITLED IF
THE CROSS-LIBEL WERE PRESSED IN AN INDEPENDENT PROCEEDING.  (FN6)  BUT
FOR WHATEVER REASON, THE DOCTRINE GAINED GENERAL ACCEPTANCE.  (FN7) 

THIS CONSISTENT PATTERN OF THE CASES IN ADMIRALTY ON THIS POINT WAS
REFLECTED IN THE PROMULGATION OF RULE 54 OF THE ADMIRALTY RULES BY THIS
COURT AT DECEMBER TERM, 1868, 7 WALL.  V: 

"WHENEVER A CROSS-LIBEL IS FILED UPON ANY COUNTER CLAIM ARISING OUT
OF THE SAME CAUSE OF ACTION FOR WHICH THE ORIGINAL LIBEL WAS FILED, THE
RESPONDENTS IN THE CROSS-LIBEL SHALL GIVE SECURITY IN THE USUAL AMOUNT
AND FORM, TO RESPOND IN DAMAGES AS CLAIMED IN SAID CROSS-LIBEL, UNLESS
THE COURT ON CAUSE SHOWN, SHALL OTHERWISE DIRECT; AND ALL PROCEEDINGS
UPON THE ORIGINAL LIBEL SHALL BE STAYED UNTIL SUCH SECURITY SHALL BE
GIVEN." 

THAT RULE HAS REMAINED IN THE ADMIRALTY RULES (FN8) EVER SINCE WITH
ONLY SLIGHT CHANGE AND NOW APPEARS AS RULE 50 IN THE FOLLOWING FORM
WHICH STILL REFLECTS THE UNDERLYING SETTLED STATE OF THE LAW: 

"WHENEVER A CROSS-LIBEL IS FILED UPON ANY COUNTERCLAIM ARISING OUT OF
THE SAME CONTRACT OR CAUSE OF ACTION FOR WHICH THE ORIGINAL LIBEL WAS
FILED, AND THE RESPONDENT OR CLAIMANT IN THE ORIGINAL SUIT SHALL HAVE
GIVEN SECURITY TO RESPOND IN DAMAGES, THE RESPONDENT IN THE CROSS-LIBEL
SHALL GIVE SECURITY IN THE USUAL AMOUNT AND FORM TO RESPOND IN DAMAGES
TO THE CLAIMS SET FORTH IN SAID CROSS-LIBEL, UNLESS THE COURT FOR CAUSE
SHOWN, SHALL OTHERWISE DIRECT; AND ALL PROCEEDINGS ON THE ORIGINAL
LIBEL SHALL BE STAYED UNTIL SUCH SECURITY BE GIVEN UNLESS THE COURT
OTHERWISE DIRECTS."  (FN9) 

BUT THE GOVERNMENT URGES THE COURT IN THIS PARTICULAR CASE TO APPLY
THE MORE FLEXIBLE PROCEDURE UTILIZED IN CIVIL CASES IN FEDERAL COURTS. 
(FN10)  THE GOVERNMENT CONTENDS THAT NONE OF THE REASONS FOR LIMITED
CROSS-LIBELS SUGGESTED ABOVE HAS ANY APPLICATION TO THE PARTICULAR
FACTS OF THIS CASE AND THAT, MOREOVER, THE RULE HAS BECOME AN
ANACHRONISM AND IS OUT OF LINE WITH THE PRACTICE IN SPECIFIC COURTS
(FN11) AND WITH THE GENERAL RULES OF PRACTICE FOR FEDERAL COURTS. 
(FN12)  BUT IT SHOULD BE OBSERVED THAT WHERE THE PROCEDURE HAS BEEN
CHANGED IN THIS REGARD IT HAS BEEN THE RESULT OF LEGISLATION OR
RULEMAKING AND NOT THE DECISIONAL PROCESS.  (FN13) 

THE LAW ON THIS POINT IN ADMIRALTY HAS BEEN SETTLED BEYOND DOUBT IN
THE LOWER COURTS FOR MANY YEARS AND AN ADMIRALTY RULE OF THIS COURT
RECOGNIZES THIS CASE LAW.  WE THINK THAT IF THE LAW IS TO CHANGE IT
SHOULD BE BY RULEMAKING OR LEGISLATION AND NOT BY DECISION. 

WHETHER THE SETOFF AND CROSS-LIBEL PROCEDURE NOW OPERATIVE IN
ADMIRALTY IS ANACHRONISTIC, IS NOT A MATTER BEST CONSIDERED BY THIS
COURT IN A LITIGATION WITHOUT THE BENEFITS WHICH NORMALLY ACCOMPANY
INTELLIGENT RULEMAKING - INCLUDING HEARINGS AND OPPORTUNITIES TO SUBMIT
DATA.  IN ADDITION TO THIS COURT'S RESPONSIBILITY FOR RULEMAKING, THE
JUDICIAL CONFERENCE OF THE UNITED STATES (FN14) HAS BEEN GIVEN CERTAIN
RESPONSIBILITIES IN THIS AREA BY THE ACT OF JULY 11, 1958, 72 STAT.
356: 

"THE CONFERENCE SHALL ALSO CARRY ON A CONTINUOUS STUDY OF THE
OPERATION AND EFFECT OF THE GENERAL RULES OF PRACTICE AND PROCEDURE NOW
OR HEREAFTER IN USE AS PRESCRIBED BY THE SUPREME COURT FOR THE OTHER
COURTS OF THE UNITED STATES PURSUANT TO LAW.  SUCH CHANGES IN AND
ADDITIONS TO THOSE RULES AS THE CONFERENCE MAY DEEM DESIRABLE TO
PROMOTE SIMPLICITY IN PROCEDURE, FAIRNESS IN ADMINISTRATION, THE JUST
DETERMINATION OF LITIGATION, AND THE ELIMINATION OF UNJUSTIFIABLE
EXPENSE AND DELAY SHALL BE RECOMMENDED BY THE CONFERENCE FROM TIME TO
TIME TO THE SUPREME COURT FOR ITS CONSIDERATION AND ADOPTION,
MODIFICATION OR REJECTION, IN ACCORDANCE WITH LAW. 

THE RESULT IN THIS CASE DOES NOT CAUSE IRREPARABLE LOSS TO THE UNITED
STATES NOR INDEED REQUIRE ANY EXPENDITURE OF GOVERNMENT FUNDS PRIOR TO
THE COMPLETE DISPOSITION OF ALL CLAIMS.  THE GOVERNMENT IS AUTHORIZED
TO WITHHOLD PAYMENT OF ISTHMIAN'S JUDGMENT IN THIS CASE TO THE EXTENT
THE GOVERNMENT HAS CLAIMS OUTSTANDING AGAINST ISTHMIAN.  (FN15)  THE
ONLY REQUIREMENT IS THAT THE GOVERNMENT PRESS THE LIBEL NOW PENDING IN
THE DISTRICT COURT.  IN OTHER SITUATIONS WHERE NO SUIT IS PENDING, THE
UNITED STATES MAY HAVE TO COMMENCE A SEPARATE SUIT RATHER THAN SET UP
AN UNRELATED DEFENSE IN THE ORIGINAL SUIT.  THIS MAY BE AN
INCONVENIENCE TO THE UNITED STATES BUT IT MUST BE REMEMBERED THAT
CONGRESS HAS EXPRESSLY DECLARED THAT WHEN SUED UNDER THE SUITS IN
ADMIRALTY ACT THE UNITED STATES IS TO HAVE ITS PROCEDURAL RIGHTS
DETERMINED AND GOVERNED IN THE SAME MANNER AS PRIVATE PARTIES.    THE
GOVERNMENT ALSO COMPLAINS THAT THE DISTRICT COURT IMPROPERLY AWARDED
COMPOUND INTEREST.  THIS RESULTED FROM THE DECREE'S DIRECTION THAT
INTEREST BE COMPUTED AT 4% FROM THE FILING OF THE LIBEL UNTIL THE ENTRY
OF THE DECREE, AND THAT INTEREST RUN AT 4% FROM DECREE UNTIL
SATISFACTION WITH THIS LATTER INTEREST TO BE COMPUTED UPON THE ENTIRE
DECREE INCLUDING THE INTEREST UP TO DECREE. 

PROVIDES: 

"A DECREE AGAINST THE UNITED STATES  ...  MAY INCLUDE COSTS OF SUIT,
AND WHEN THE DECREE IS FOR A MONEY JUDGMENT, INTEREST AT THE RATE OF 4
PER CENTUM PER ANNUM UNTIL SATISFIED, OR AT ANY HIGHER RATE WHICH SHALL
BE STIPULATED IN ANY CONTRACT UPON WHICH SUCH DECREE SHALL BE BASED. 
INTEREST SHALL RUN AS ORDERED BY THE COURT  ...  ." 

CONGRESS' DEMONSTRATED CONCERN WITH THE PROBLEM OF INTEREST UNDER THE
SUITS IN ADMIRALTY ACT INDICATES THAT IT INTENDED TO COVER THESE AWARDS
AFFIRMATIVELY AND NOT HAVE THEM CONTROLLED BY THE GENERAL COMMAND THAT
THE SUIT "SHALL PROCEED AND SHALL BE HEARD AND DETERMINED ACCORDING TO
THE PRINCIPLES OF LAW" APPLICABLE TO PRIVATE PARTIES.  SECTION 3
PROVIDES FOR BUT ONE AWARD OF INTEREST IN THE DECREE AND THAT AWARD IS
LIMITED TO 4% UNTIL SATISFACTION.  WE FIND NOTHING IN THE RATHER
AMBIGUOUS STATUTE AUTHORIZING THE ACCUMULATION OF INTEREST UP TO THE
DECREE AND THEN A SECOND INDEPENDENT AWARD OF INTEREST WHICH OPERATES
UPON THE FIRST INTEREST.  COMPOUND INTEREST IS NOT PRESUMED TO RUN
AGAINST THE UNITED STATES.  SEE CHEROKEE NATION V. UNITED STATES, 270
U.S. 476, 490. 

THE JUDGMENT IS AFFIRMED AS TO ENTRY OF THE DECREE PRO CONFESSO.  THE
AWARD OF COMPOUND INTEREST WAS IMPROPER AND THE JUDGMENT IS REVERSED
AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED. 

FN1  ISTHMIAN FIRST ATTEMPTED TO RECOFER THE UNPAID PORTION OF THE
FREIGHT BILL BY A SUIT IN THE COURT OF CLAIMS.  THE UNITED STATES MOVED
TO DISMISS THAT SUIT BECAUSE ISTHMIAN'S CLAIM WAS SAID TO HAVE BEEN
MARITIME IN NATURE, THUS GIVING THE DISTRICT COURTS EXCLUSIVE
JURISDICTION UNDER THE SUITS IN ADMIRALTY ACT.  46 U.S.C. SEC. 741 ET
SEQ. THE COURT OF CLAIMS DISMISSED ISTHMIAN'S SUIT.  ISTHMIAN STEAMSHIP
CO. V. UNITED STATES, 131 CT. CL. 472, 130 F. SUPP. 336.  BEFORE THAT
DISMISSAL, ISTHMIAN FILED THE INSTANT PROCEEDING. 

FN2  SEE GENERALLY, AS TO THE NATURE OF SETOFF, LOYD, THE DEVELOPMENT
OF SET-OFF, 64 U. OF PA. L. REV. 541 (1916).  AS TO THE DISTINCTIONS
BETWEEN SETOFF AND RECOUPMENT SEE SHIPMAN, COMMON LAW PLEADING (3D ED.
1923), SECS. 209, 210; WATERMAN ON SET-OFF, RECOUPMENT, AND COUNTER
CLAIM (2D ED. 1872), SEC. 464. 

FN3  THE GOVERNMENT CITES SEVERAL CASES, E.G., UNITED STATES V. NEW
YORK, N.H.&H.R. CO., 355 U.S. 253; ALCOA STEAMSHIP CO. V. UNITED
STATES, 338 U.S. 421, AND WABASH R. CO. V. UNITED STATES, 59 CT. CL.
322, AFFIRMED SUB NOM. UNITED STATES V. ST. LOUIS, S.F.&T.R. CO., 270
U.S. 1, IN WHICH THE COURTS ADJUDICATED DISPUTES WHICH WERE NOT THE
BASES OF THE ORIGINAL COMPLAINTS.  NONE OF THE CASES CITED WAS BROUGHT
UNDER THE SUITS IN ADMIRALTY ACT.  THE FIRST TWO SUITS INVOKED THE
TUCKER ACT, NOW 28 U.S.C. SEC. 1346, WHILE WABASH WAS BROUGHT IN THE
COURT OF CLAIMS.  THE CONTROLLING STATUTES CONTAIN EXPRESS AUTHORITY
FOR ENTERTAINING UNRELATED SETOFFS.  SEE N. 11, INFRA.  ON THIS POINT,
THESE CASES INDICATE NO MORE THAN THAT WHEN THE PLEADINGS PROPERLY IN
THE CASE, TAKEN TOGETHER, INDICATE THERE ARE DISPUTES AS TO ISSUES NOT
RAISED IN THE COMPLAINT, THOSE ISSUES WILL BE DETERMINED. 

FN4  SEE, E.G., THE HUDSON, 12 FED. CAS. NO. 6,831; WILLARD V. DORR,
29 FED. CAS. NO. 17,680; SHILMAN V. UNITED STATES, 164 F.2D 649.  SEE
ALSO ISBRANDTSEN CO. V. JOHNSON, 343 U.S. 779. 

FN5  SEE, E.G., HOWARD V. 9,889 BAGS OF MALT, 255 F. 917; THE PING-ON
V. BLETHEN, 11 F. 607, 611-612.  IN BRITISH TRANSPORT COMM'N V. UNITED
STATES, 354 U.S. 129, THE RIGHTS OF THE VARIOUS PARTIES AROSE FROM THE
SAME COLLISION.  CF. POWELL V. UNITED STATES, 300 U.S. 276, 290. 

FN6  SEE, E.G., THE YANKEE, 37 F. SUPP. 512; BAINS V. THE JAMES AND
CATHERINE, 2 FED. CAS. NO. 756. 

FN7  THE FOLLOWING CASES AROSE IN THE SECOND CIRCUIT:  THE HUDSON, 12
FED. CAS. NO. 6,831; EMERY CO. V. TWEEDIE TRADING CO., 143 F. 144, 146;
THE OCEANO, 148 F. 131, 132; UNITED TRANSPORTATION & LIGHTERAGE CO. V.
NEW YORK & B.T. LINE, 185 F. 386; THE JANE PALMER, 270 F. 609; THE
YANKEE, 37 F. SUPP. 512; CIOFFI V. NEW ZEALAND SHIPPING CO., 73 F.
SUPP. 1015, 1016; OZANIC V. UNITED STATES, 188 F.2D 228, 231. 

CASES ARISING IN OTHER CIRCUITS INCLUDE:  WILLARD V. DORR, 29 FED.
CAS. NO. 17,680; BAINS V. THE JAMES AND CATHERINE, 2 FED. CAS. NO. 756;
THE TWO BROTHERS, 4 F. 158; THE ZOUAVE, 29 F. 296; ANDERSON V. PACIFIC
COAST CO., 99 F. 109; HOWARD V. 9,889 BAGS OF MALT, 255 F. 917;
MONONGAHELA & OHIO DREDGING CO. V. RODGERS SAND CO., 296 F. 916;
SUSQUEHANNA S.S. CO. V. A.O. ANDERSON & CO., 6 F.2D 858, 859;
HILDEBRAND V. GENEVA MILL CO., 32 F.2D 343, 347. 

FN8  PRESENT AUTHORITY FOR THIS COURT'S PROMULGATION OF ADMIRALTY
RULES IS FOUND IN 28 U.S.C. SEC. 2073.  ORIGINAL AUTHORITY IS FOUND IN
THE ACT OF AUGUST 23, 1842, 5 STAT. 516, 518. 

FN9  IT IS INTERESTING TO NOTE THAT THE LOCAL RULES OF SEVERAL OF THE
DISTRICT COURTS HAVE RECOGNIZED THE SAME PRINCIPLE.  SEE, E.G., RULE 16
OF THE ADMIRALTY RULES OF THE UNITED STATES DISTRICT COURTS FOR THE
SOUTHERN AND EASTERN DISTRICTS OF NEW YORK. 

FN10  SEE FED. RULES CIV. PROC., 13(B): 

"A PLEADING MAY STATE AS A COUNTERCLAIM ANY CLAIM AGAINST AN OPPOSING
PARTY NOT ARISING OUT OF THE TRANSACTION OR OCCURRENCE THAT IS THE
SUBJECT MATTER OF THE OPPOSING PARTY'S CLAIM." 

RULE 13(C): 

"A COUNTERCLAIM MAY OR MAY NOT DIMINISH OR DEFEAT THE RECOVERY SOUGHT
BY THE OPPOSING PARTY.  IT MAY CLAIM RELIEF EXCEEDING IN AMOUNT OR
DIFFERENT IN KIND FROM THAT SOUGHT IN THE PLEADING OF THE OPPOSING
PARTY."  SEE GENERALLY, 3 MOORE, FEDERAL PRACTICE (2D ED.), SEC. 13.01
ET SEQ. 

FN11  THE JURISDICTIONAL STATUTE OF THE COURT OF CLAIMS, 28 U.S.C.
SEC. 1503, PROVIDES: 

"THE COURT OF CLAIMS SHALL HAVE JURISDICTION TO RENDER JUDGMENT UPON
ANY SET-OFF OR DEMAND BY THE UNITED STATES AGAINST ANY PLAINTIFF IN
SUCH COURT." 

RULE 17(B) OF THE COURT OF CLAIMS PROVIDES: 

"THE ANSWER MAY STATE AS A COUNTERCLAIM ANY CLAIM AGAINST A PLAINTIFF
NOT ARISING OUT OF THE TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT
MATTER OF THE PETITION." 

SEE ALSO 28 U.S.C. SEC. 1346(C) RELATING TO JURISDICTION OF THE
DISTRICT COURTS OVER CERTAIN CLAIMS AGAINST THE UNITED STATES: 

"THE JURISDICTION CONFERRED BY THIS SECTION INCLUDES JURISDICTION OF
ANY SET-OFF, COUNTERCLAIM, OR OTHER CLAIM OR DEMAND WHATEVER ON THE
PART OF THE UNITED STATES AGAINST ANY PLAINTIFF COMMENCING AN ACTION
UNDER THIS SECTION." 

FN12  SEE N. 10, SUPRA.  BUT SEE SEC. 3 OF THE PUBLIC VESSELS ACT, 43
STAT. 1112, 46 U.S.C. SEC. 783, PROVIDING THAT WHEN THE UNITED STATES
FILES A LIBEL AGAINST A PRIVATE PARTY, THE PRIVATE PARTY MAY ONLY SET
OFF OR COUNTERCLAIM FOR DAMAGES "ARISING OUT OF THE SAME SUBJECT MATTER
OR CAUSE OF ACTION  ...  ." 

FN13  SEE CLARK, CODE PLEADING (2D ED.), SECS. 100, 101. 

FN14  FOR THE COMPOSITION AND FUNCTION OF THE JUDICIAL CONFERENCE OF
THE UNITED STATES SEE 28 U.S.C. SEC. 331, AS AMENDED BY THE ACT OF JULY
11, 1958, 72 STAT. 356, QUOTED IN THE TEXT. 

FN15  ACT OF MARCH 3, 1875, 18 STAT. 481, AS AMENDED, 31 U.S.C. SEC.
227. 

THE INTEREST PROVISIONS OF THIS SECTION INDICATE THAT ISTHMIAN MAY
WELL BE PREJUDICED IF THE PRIOR LAW IS DISREGARDED IN THIS CASE BECAUSE
THE OTHER REASONS FOR THE RULE MAY NOT EXIST.  IF THE GOVERNMENT WERE
PERMITTED TO RAISE ITS CROSS-LIBEL IN THIS CASE AND SHOULD LOSE ON THE
MERITS, THEN AT BEST ISTHMIAN MIGHT BE AWARDED 4% INTEREST ON
$115,203.76 TO RUN FROM THE DATE OF THE LIBEL UNTIL SATISFACTION. 

BUT IF THE GOVERNMENT'S CROSS-LIBEL IS NOT PERMITTED IN THIS CASE,
ISTHMIAN IS ENTITLED TO A DECREE PRO CONFESSO.  THE COMPTROLLER GENERAL
THEN WILL WITHHOLD PAYMENT OF THE JUDGMENT UNTIL THE GOVERNMENT'S
ACTION IS TERMINATED AND IF THE GOVERNMENT SHOULD LOSE ON THE MERITS OF
ITS CLAIM, SEC. 227 REQUIRES THE GOVERNMENT PAY THE WITHHELD AMOUNT
WITH INTEREST AT 6% "FOR THE TIME IT HAS BEEN WITHHELD FROM" ISTHMIAN. 
THE DIFFERENCE IN RATES IS OF NO MEAN SIGNIFICANCE WHEN THE AMOUNT IN
DISPUTE IS AS LARGE AS IT IS HERE. 
..END :













FELTER V. SOUTHERN PACIFIC CO. 359 U.S. 326 


NO. 269.  ARGUED MARCH 24, 1959 - DECIDED APRIL 27, 1959 - 256 F.2D 429,
REVERSED. 


THE RAILWAY LABOR ACT, AS AMENDED, AUTHORIZES LABOR ORGANIZATIONS
REPRESENTING EMPLOYEES OF CARRIERS TO MAKE "CHECKOFF" AGREEMENTS WITH
THE CARRIERS FOR THE DEDUCTION FROM EMPLOYEES' WAGES OF PERIODIC DUES,
INITIATION FEES AND ASSESSMENTS; BUT IT PROVIDES THAT "NO SUCH
AGREEMENT SHALL BE EFFECTIVE WITH RESPECT TO ANY INDIVIDUAL EMPLOYEE
UNTIL HE SHALL HAVE FURNISHED THE EMPLOYER WITH A WRITTEN ASSIGNMENT TO
THE LABOR ORGANIZATION  ...  WHICH SHALL BE REVOCABLE IN WRITING AFTER
THE EXPIRATION OF ONE YEAR."  THE BROTHERHOOD OF RAILROAD TRAINMEN AND
A RAILROAD ENTERED INTO, AND ATTEMPTED TO ENFORCE AGAINST AN EMPLOYEE
OF THE RAILROAD, AN AGREEMENT THAT THERE BE USED, AS A NECESSARY FORM
FOR REVOKING AN ASSIGNMENT, NOTHING OTHER THAN A WRITING EXECUTED ON A
FORM FURNISHED BY THE BROTHERHOOD AND FORWARDED BY THE BROTHERHOOD TO
THE RAILROAD.  HELD:  SUCH A REQUIREMENT MAY NOT BE ENFORCED AGAINST AN
INDIVIDUAL EMPLOYEE, BECAUSE IT WOULD RESTRICT HIS STATUTORY RIGHT TO
REVOKE AN ASSIGNMENT AFTER ONE YEAR.  PP. 326-338. 

FELTER V. SOUTHERN PACIFIC CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE RAILWAY LABOR ACT (FN1) WAS AMENDED IN 1951 TO AUTHORIZE LABOR
ORGANIZATIONS REPRESENTING EMPLOYEES OF CARRIERS TO MAKE "CHECKOFF"
AGREEMENTS WITH THE CARRIERS FOR THE DEDUCTION FROM EMPLOYEES' WAGES OF
PERIODIC DUES, INITIATION FEES AND ASSESSMENTS.  SECTION 2 ELEVENTH
(B), AS ADDED BY 64 STAT. 1238, 45 U.S.C. SEC. 152 ELEVENTH (B).  (FN2)
THE AMENDMENT CONTAINS A PROVISO "THAT NO SUCH AGREEMENT SHALL BE
EFFECTIVE WITH RESPECT TO ANY INDIVIDUAL EMPLOYEE UNTIL HE SHALL HAVE
FURNISHED THE EMPLOYER WITH A WRITTEN ASSIGNMENT TO THE LABOR
ORGANIZATION  ...  WHICH SHALL BE REVOCABLE IN WRITING AFTER THE
EXPIRATION OF ONE YEAR  ...  ."  IN THIS CASE THE DUES DEDUCTION
AGREEMENT BETWEEN RESPONDENTS BROTHERHOOD OF RAILROAD TRAINMEN AND
SOUTHERN PACIFIC COMPANY REQUIRED THAT THERE BE USED, AS A NECESSARY
FORM FOR REVOKING AN ASSIGNMENT, NOTHING OTHER THAN A WRITING EXECUTED
ON A FORM FURNISHED BY THE BROTHERHOOD OF RAILROAD TRAINMEN AND
FORWARDED BY THAT ORGANIZATION TO THE EMPLOYER.  (FN3)  THE PETITIONER
CHALLENGES THIS CONTRACTUAL REGULATION AS VIOLATIVE OF THE EMPLOYEE'S
STATUTORY RIGHT TO REVOKE THE ASSIGNMENT.  THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA HELD THAT THE REQUIREMENT WAS VALID,
REASONING THAT ALTHOUGH IT "MAY SEEM A BIT ARBITRARY" TO ALLOW
REVOCATION ONLY BY MEANS OF THE FORM PROVIDED BY THE TRAINMEN, IT WAS
"NO BURDEN" AND WAS "EASILY COMPLIED WITH."  155 F. SUPP. 315, 317. 
THE COURT OF APPEALS FOR THE NINTH CIRCUIT ADOPTED THE DISTRICT COURT'S
REASONING AND AFFIRMED.  256 F.2D 429.  WE GRANTED CERTIORARI TO
CONSIDER THE IMPORTANT QUESTION OF THE SCOPE OF THE PROVISO OF SEC. 2
ELEVENTH (B).  358 U.S. 812. 

THE PETITIONER IS EMPLOYED BY RESPONDENT, SOUTHERN PACIFIC COMPANY,
AND THROUGH MARCH 1957 WAS A MEMBER OF RESPONDENT BROTHERHOOD OF
RAILROAD TRAINMEN.  HE HAD EXECUTED AN INDIVIDUAL ASSIGNMENT
AUTHORIZING THE CHECKOFF IN HIS CASE.  IN MARCH 1957, MORE THAN A YEAR
AFTER HIS ASSIGNMENT HAD BEEN IN EFFECT, PETITIONER DECIDED TO JOIN THE
ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN.  HE NOTIFIED THE TRAINMEN OF
HIS RESIGNATION BY LETTER DATED MARCH 30, 1957, ADVISING THEM THAT HE
WAS REVOKING THE AUTHORIZATION TO CHECK OFF HIS DUES AND THAT HE HAD
SENT A REVOCATION FORM TO THE COMPANY.  THE SAME DAY A REPRESENTATIVE
OF THE CONDUCTORS SENT PETITIONER'S EXECUTED REVOCATION FORM TO THE
COMPANY AND HANDED AN EXECUTED DUPLICATE REVOCATION FORM TO THE
SECRETARY-TREASURER OF PETITIONER'S LODGE OF THE TRAINMEN. 

THE COMPANY AND THE TRAINMEN, RELYING ON THE PROVISIONS OF THE DUES
DEDUCTION AGREEMENT, DECLINED TO HONOR THE REVOCATION FORMS EXECUTED BY
THE PETITIONER, THOUGH THEY WERE IDENTICAL WITH THE FORM WHICH THE DUES
DEDUCTION AGREEMENT PROVIDED SHOULD BE OBTAINED FROM THE TRAINMEN.  THE
COMPANY ADVISED THAT "THIS MATTER IS BEING DIRECTED TO THE ATTENTION OF
THE APPROPRIATE OFFICER OF THE BROTHERHOOD OF RAILROAD TRAINMEN FOR
HANDLING IN ACCORDANCE WITH THE AGREEMENT."  THE TRAINMEN'S LOCAL
SECRETARY-TREASURER IN TURN WROTE THE PETITIONER THAT THE FORMS HE HAD
EXECUTED AND SUBMITTED WERE NOT ACCEPTABLE.  HE SAID THAT "THE ONLY WAY
THAT YOU CAN BE RELEASED FROM WAGE ASSIGNMENT AUTHORIZATION IS BY
SIGNING A REGULATION A-2 CARD FURNISHED BY ME AND FORWARDED BY ME TO
THE COMPANY."  HE ENCLOSED SUCH A CARD FOR THE PETITIONER'S SIGNATURE
AND NOTED "WE WOULD BE SORRY TO LOSE YOU AS A MEMBER OF THE BRT AND
HOPE THAT YOU MAY RECONSIDER."  AS A RESULT OF THE REFUSAL OF THE
COMPANY AND THE TRAINMEN TO TREAT THE PETITIONER'S FORMS A VALID, IT
WAS TOO LATE TO STOP THE CHECKOFF OF PETITIONER'S APRIL 1957 WAGES. 

THE PETITIONER DECLINED TO EXECUTE ANY FURTHER FORMS AND COMMENCED
THIS SUIT IN THE DISTRICT COURT AGAINST THE COMPANY AND THE TRAINMEN. 
HIS COMPLAINT ALLEGED THAT THE ACTION WAS BROUGHT UNDER THE RAILWAY
LABOR ACT, AN "ACT OF CONGRESS REGULATING COMMERCE"; IN THIS POSTURE
THE JURISDICTION OF THE DISTRICT COURT WAS PROPERLY INVOKED UNDER 28
U.S.C. SEC.  1337.  (FN4)  THE COMPLAINT ALLEGED THAT THE ACTION WAS
BROUGHT ON BEHALF OF PETITIONER AND OTHERS SIMILARLY SITUATED; THE
PARTIES ARE IN DISPUTE AS TO HOW MANY OTHER EMPLOYEES WERE IN FACT
SIMILARLY SITUATED WITH PETITIONER, BUT, WITH THE COURTS BELOW, WE DO
NOT FIND IT NECESSARY TO RESOLVE THE DISPUTE, (FN5) AND WITH THEM, WE
DECIDE THIS CASE ON THE MERITS.  THE COMPLAINT PRAYED FOR A DECLARATION
THAT THE PETITIONER, UNDER THE PROVISO, HAD COMPLIED WITH THE
REQUIREMENTS FOR EFFECTING REVOCATION AND HAD TERMINATED ALL AUTHORITY
OF THE COMPANY TO CHECK OFF HIS WAGES IN FAVOR OF THE TRAINMEN. 
INJUNCTIVE RELIEF WAS ALSO SOUGHT.  THE COMPANY AND THE TRAINMEN
ADMITTED THAT THEY WERE CONTINUING TO TREAT THE PETITIONER'S ASSIGNMENT
AS UNREVOKED, CONTENDING THAT THE COLLECTIVE BARGAINING AUTHORITY UNDER
THE 1951 AMENDMENT TO MAKE CHECKOFF AGREEMENTS INCLUDED AUTHORITY TO
AGREE UPON THE CHALLENGED PROVISIONS OF THE DUES DEDUCTION AGREEMENT. 
WE DISAGREE WITH THE DISTRICT COURT AND THE COURT OF APPEALS AND HOLD
THAT THE RESTRICTIVE PROVISIONS OF THE DUES DEDUCTION AGREEMENT ARE
VIOLATIVE OF THE 1951 AMENDMENT. 

FIRST.  THE 1951 AMENDMENT RELAXED PROVISIONS OF THE RAILWAY LABOR
ACT DATING FROM 1934 WHICH HAD FORBIDDEN CARRIERS AND LABOR
ORGANIZATIONS FROM MAKING EITHER "UNION-SHOP" ARRANGEMENTS, (FN6) OR
ARRANGEMENTS WHEREBY CARRIERS WOULD CHECK OFF FROM EMPLOYEE WAGES
AMOUNTS OWED TO A LABOR ORGANIZATION FOR DUES, INITIATION FEES AND
ASSESSMENTS.  (FN7)  IT THUS BECAME LAWFUL TO BARGAIN COLLECTIVELY FOR
"UNION-SHOP" AND "CHECKOFF" ARRANGEMENTS; BUT THIS POWER WAS MADE
SUBJECT TO LIMITATIONS.  THE LIMITATION HERE PERTINENT IS THAT, BY
FORCE OF THE PROVISO, THE AUTHORITY TO MAKE CHECKOFF ARRANGEMENTS DOES
NOT INCLUDE AUTHORITY TO BIND INDIVIDUAL EMPLOYEES TO SUBMIT TO THE
CHECKOFF.  ANY AGREEMENT WAS TO BE INEFFECTIVE AS TO AN EMPLOYEE WHO
DID NOT FURNISH THE EMPLOYER WITH A WRITTEN ASSIGNMENT IN FAVOR OF THE
LABOR ORGANIZATION, AND ANY ASSIGNMENT MADE WAS TO BE "REVOCABLE IN
WRITING AFTER THE EXPIRATION OF ONE YEAR  ...  ."  THIS FAILURE TO
AUTHORIZE AGREEMENTS BINDING EMPLOYEES TO SUBMIT TO THE CHECKOFF WAS
DELIBERATE ON THE PART OF CONGRESS.  PROPOSALS TO THAT END WERE
EXPRESSLY REJECTED.  THE BILLS ORIGINALLY INTRODUCED IN THE HOUSE AND
SENATE, AND FAVORABLY REPORTED BY THE RESPECTIVE HOUSE AND SENATE
COMMITTEES, WOULD SIMPLY HAVE AUTHORIZED CARRIERS AND LABOR
ORGANIZATIONS "TO MAKE AGREEMENTS PROVIDING FOR THE DEDUCTION BY SUCH
CARRIER OR CARRIERS FROM THE WAGES OF ITS OR THEIR EMPLOYEES IN A CRAFT
OR CLASS AND PAYMENT TO THE LABOR ORGANIZATION REPRESENTING THE CRAFT
OR CLASS OF SUCH EMPLOYEES, OF ANY DUES, INITIATION FEES OR ASSESSMENTS
WHICH MAY BE PAYABLE TO SUCH LABOR ORGANIZATION."  H.R. REP. NO. 2811,
P. 1, AND S. REP. NO. 2262, PP. 1-2, 81ST CONG., 2D SESS.  INDEED THE
HOUSE REPORT REVEALS THAT THE CHOICE FINALLY MADE OF MAKING
IMPLEMENTATION OF THE CHECKOFF A MATTER OF INDIVIDUAL EMPLOYEE
ASSIGNMENT WAS AT FIRST CONSIDERED AND REJECTED; "THE COMMITTEE THOUGHT
THAT THE MAKING OF SUCH ASSIGNMENTS  ... SHOULD REMAIN A SUBJECT FOR
COLLECTIVE BARGAINING."  (FN8)  BUT THE MATTER HAD BEEN A RECURRENT
SUBJECT OF CONCERN PARTICULARLY AT THE SENATE HEARINGS, AND BETWEEN THE
TIME OF THE COMMITTEE REPORTS AND THE CONSIDERATION OF THE BILL ON THE
SENATE FLOOR, THE SENATE COMMITTEE REVERSED ITS VIEW AND DEVELOPED THE
PROVISO (FN9) ALLOWING THE INDIVIDUAL EMPLOYEE TO DECIDE FOR HIMSELF
WHETHER TO SUBMIT TO THE CHECKOFF, AND WHETHER TO REVOKE AN
AUTHORIZATION AFTER THE EXPIRATION OF ONE YEAR.  SEE 96 CONG. REC.
15735, 16268.  (FN10)  IN THIS FORM THE BILL WAS PASSED BY BOTH HOUSES
AND APPROVED. 

THE STRUCTURE OF SEC. 2 ELEVENTH (B) THEN IS SIMPLE:  CARRIERS AND
LABOR ORGANIZATIONS ARE AUTHORIZED TO BARGAIN FOR ARRANGEMENTS FOR A
CHECKOFF BY THE EMPLOYER ON BEHALF OF THE ORGANIZATION.   LATITUDE IS
ALLOWED IN THE TERMS OF SUCH ARRANGEMENTS, BUT NOT PAST THE POINT SUCH
TERMS IMPINGE UPON THE FREEDOM EXPRESSLY RESERVED TO THE INDIVIDUAL
EMPLOYEE TO DECIDE WHETHER HE WILL AUTHORIZE THE CHECKOFF IN HIS CASE. 
SIMILARLY CONGRESS CONSCIOUSLY AND DELIBERATELY CHOSE TO DENY CARRIERS
AND LABOR ORGANIZATIONS AUTHORITY TO REACH TERMS WHICH WOULD RESTRICT
THE EMPLOYEE'S COMPLETE FREEDOM TO REVOKE AN ASSIGNMENT BY A WRITING
DIRECTED TO THE EMPLOYER AFTER ONE YEAR.  CONGRESS WAS SPECIFICALLY
CONCERNED WITH KEEPING THESE AREAS OF INDIVIDUAL CHOICE OFF THE
BARGAINING TABLE.  IT IS PLAINLY OUR DUTY TO EFFECTUATE THIS OBVIOUS
INTENTION OF CONGRESS, AND WE MUST THEREFORE BE CAREFUL NOT TO ALLOW
THE EMPLOYEE'S FREEDOM OF DECISION TO BE ERODED IN THE NAME OF
PROCEDURE, OR OTHERWISE.  WE SEE NO AUTHORITY GIVEN BY THE ACT TO
CARRIERS AND LABOR ORGANIZATIONS TO RESTRICT THE EMPLOYEE'S INDIVIDUAL
FREEDOM OF DECISION BY SUCH REGULATIONS AS WERE AGREED UPON IN THE DUES
DEDUCTION AGREEMENT.  THE QUESTION IS NOT WHETHER THESE RESTRICTIONS
MIGHT ABSTRACTLY BE CALLED "REASONABLE" OR NOT. 

SECOND.  IT IS ARGUED THAT THE REQUIREMENT THAT THE REVOCATION NOTICE
BE ON A FORM PROVIDED BY THE TRAINMEN IS NECESSARY IN THE INTERESTS OF
ORDERLY PROCEDURE, AND THAT THE COLLECTIVE AGREEMENT PROVISION WAS AN
APPROPRIATE PLACE TO SPECIFY THIS PROCEDURE.  WE MIGHT NOTE THAT THE
ORIGINAL COMMITTEE REJECTION OF THE CONCEPT OF INDIVIDUAL AUTHORIZATION
AND REVOCATION WAS SUPPORTED FOR MUCH THE SAME REASONS - THAT IT WAS
INCONSISTENT WITH ORDERLY PROCEDURE - BUT THIS VIEW DID NOT PREVAIL
FINALLY IN THE ACT.  (FN11)  OF COURSE, THE PARTIES MAY ACT TO MINIMIZE
THE PROCEDURAL PROBLEMS CAUSED BY CONGRESS' CHOICE.  CARRIERS AND LABOR
ORGANIZATIONS MAY SET UP PROCEDURES THROUGH THE COLLECTIVE AGREEMENT
FOR PROCESSING, BETWEEN THEMSELVES, INDIVIDUAL ASSIGNMENTS AND
REVOCATIONS RECEIVED, AND CARRIERS MAY MAKE REASONABLE DESIGNATIONS, IN
OR OUT OF COLLECTIVE BARGAINING CONTRACTS, OF AGENTS TO WHOM
REVOCATIONS MAY BE SENT.  REVOCATIONS, AFTER ALL, MUST BE SENT
SOMEWHERE.  AND DOUBTLESS FORMS MAY BE ESTABLISHED, BY WAY OF
SUGGESTION, AND MEANS FOR MAKING THEM AVAILABLE SET UP.  BUT HERE A
SPECIFIC PROCEDURE WAS ESTABLISHED AND MADE MANDATORY, IMPOSING
REQUIREMENTS OVER AND ABOVE WHAT WE CAN PERCEIVE TO BE FAIRLY THOSE OF
THE STATUTE - WHICH ARE SIMPLY THAT THERE BE A WRITING, ATTRIBUTABLE TO
THE EMPLOYEE AND FAIRLY EXPRESSING A REVOCATION OF HIS ASSIGNMENT,
FURNISHED THE CARRIER. 

THE RESPONDENTS URGE THAT THE REQUIREMENT IS NECESSARY IN THE
INTERESTS OF PREVENTING FRAUD AND FORGERY, AND OF OBVIATING DISPUTES AS
TO THE AUTHENTICITY OF REVOCATION INSTRUMENTS.  SUCH PROBLEMS ARE
HARDLY PECULIAR TO THIS SETTING.  IF THE COMPANY SUSPECTS FRAUD OR
FORGERY IN A REVOCATION, IT IS WITHIN ITS POWER INFORMALLY TO CHECK THE
MATTER WITH THE EMPLOYEE.  BUT WE THINK IT HAS NO POWER, WHETHER
PURSUANT TO ACTION TAKEN JOINTLY WITH THE LABOR ORGANIZATION IN THE
COLLECTIVE BARGAINING AGREEMENT OR TO UNILATERAL DECLARATION, TO TREAT
AS NULLITIES REVOCATION NOTICES WHICH ARE CLEARLY INTENDED AS SUCH AND
ABOUT WHOSE AUTHENTICITY THERE IS NO DISPUTE. 

THE TRAINMEN NEXT JUSTIFY THE PROCEDURE AS A NECESSARY PROTECTION TO
THE EMPLOYEE FROM HIMSELF - THAT IS, FROM HIS DESIRE TO REVOKE THE
CHECKOFF - AND FROM OUTSIDE UNDUE INFLUENCE TO DO SO, PRESUMABLY THAT
OF A RIVAL ORGANIZATION OR OF MANAGEMENT.  BUT CONGRESS APPARENTLY
FORESAW AND DISCOUNTED ANY NECESSITY FOR THIS PROTECTION WHEN IT TOOK
THE MATTER OUT OF THE HANDS OF THE CARRIERS AND LABOR ORGANIZATIONS AND
LEFT IT TO THE EMPLOYEE'S INDIVIDUAL CHOICE.  IT DID NOT MAKE ANY
PROVISION FOR PRELIMINARY CORRESPONDENCE OR DEALINGS BETWEEN THE
EMPLOYEE AND THE ORGANIZATION WHEN THE EMPLOYEE WANTED TO STOP THE
CHECKOFF, WHETHER INCIDENT TO TERMINATING HIS AFFILIATION OR NOT.  THE
COMPLETE FREEDOM OF INDIVIDUAL CHOICE IN THIS AREA, UNDAMPENED BY THE
NECESSITY OF SUCH PRELIMINARY DEALINGS WITH THE LABOR ORGANIZATION TO
MAKE IT EFFECTIVE, MAY SEEM UNFORTUNATE TO LABOR ORGANIZATIONS, BUT IT
IS A PROBLEM WITH WHICH WE THINK CONGRESS INTENDED THEM TO LIVE. 

THIRD.  THERE IS SOME SUGGESTION THAT, POSSIBLY APART FROM THE
PROVISIONS OF THE ACT, BECAUSE PETITIONER WAS A MEMBER OF THE TRAINMEN
AND REPRESENTED BY THEM IN THE NEGOTIATION OF THE BARGAINING AGREEMENT,
HE IS BOUND HERE BY THE ACTION OF HIS AGENT, AS IT WERE, IN
ESTABLISHING THIS PROVISION.  BUT THE SHORT ANSWER IS THAT THE PROVISO
MAKES IT CLEAR THAT THE ORGANIZATION WAS NOT TO FUNCTION AS ITS
MEMBERS' AGENT IN WAIVING THEIR STATUTORY REVOCATION RIGHTS; WE DOUBT
WHETHER THE RIGHT TO REVOKE COULD BE WAIVED AT ALL IN ADVANCE OF THE
TIME FOR ITS EXERCISE, BUT IN ANY EVENT, A WAIVER THROUGH THE
COLLECTIVE AGREEMENT WOULD, UNDER THE STATUTE, BE THE LAST CONCEIVABLY
PERMISSIBLE.  AND EQUALLY LACKING IN MERIT IS THE SUGGESTION THAT THE
REQUIREMENT OF A TRAINMEN-FURNISHED FORM IS SO TRIVIAL AS TO MAKE THE
WHOLE CONTROVERSY DE MINIMIS AND PERHAPS DENY PETITIONER AND THOSE IN
HIS POSITION JUDICIAL REDRESS.  ADDITIONAL PAPER WORK OR
CORRESPONDENCE, AFTER HE ONCE HAS INDICATED HIS DESIRE TO REVOKE IN
WRITING, MIGHT WELL BE SOME DETERRENT, SO CONGRESS MIGHT THINK, TO THE
EXERCISE OF FREE CHOICE BY AN INDIVIDUAL WORKER.  WHEN ONE CONSIDERS
THE PROBLEM IN ITS INDUSTRIAL SETTING AND RECALLS THE FACT THAT
INDIVIDUAL WORKMEN ARE NOT AS EQUIPPED FOR AND INCLINED TO
CORRESPONDENCE AS ARE BUSINESS OFFICES, ANY COMPLICATION OF THE
PROCEDURE NECESSARY TO WITHDRAW OR THE ADDITION OF ANY EXTRA STEPS TO
IT MAY BE BURDENSOME.  THAT INVOLVED HERE MAY DETER EMPLOYEES FROM
TAKING AN ACTION THEY MIGHT HAVE TAKEN IF NO PRELIMINARY CONTACT WITH
THEIR LODGE WAS NECESSARY.  AND WITHIN THE AREA THAT THE ACT LEAVES
OPEN FOR SOLICITATION BY RIVAL ORGANIZATIONS - AS WHERE NO UNION SHOP
HAS BEEN ESTABLISHED, (FN12) OR WITHIN THE AREA WHERE EVEN A WORKER
UNDER A UNION-SHOP ARRANGEMENT CAN CHANGE AFFILIATIONS, SEE
PENNSYLVANIA R. CO. RYCHLIK, 352 U.S. 480, 492-494 - THE MATTER MAY BE
FAR FROM TRIVIAL, AS THE FACTS IN THIS CASE SUGGEST.  ORGANIZATIONAL
EFFORTS ARE ATTENDED BY PERSUADING THE RECRUIT TO DROP HIS MEMBERSHIP
IN HIS PRESENT UNION AND TERMINATE ANY CHECKOFF OF HIS WAGES IN ITS
FAVOR.  (FN13)  THERE MAY WELL BE A DIFFERENCE IN THE WEIGHT OF
PERSUASION NECESSARY TO ENLIST THE WORKER IF HE CANNOT AT ONCE
EFFECTUATE HIS INTENTIONS THROUGH PAPERS FURNISHED HIM ON THE SPOT BY
THE RECRUITING ORGANIZATION.  WE DO NOT SAY WHETHER THE "COOLING OFF"
PERIOD WHICH THE PROCEDURE INSISTED UPON HERE CREATES WOULD BE WISE OR
UNWISE AS A MATTER OF POLICY.  IT IS ENOUGH TO SAY THAT WE BELIEVE THE
ACT HAS NOT LEFT ANY PLACE FOR IT.  WE THINK THE ADDED REQUIREMENT
INVOLVED HERE IS MEANINGFULLY BURDENSOME WHEN CONSIDERED IN CONTEXT;
BUT IN ANY EVENT, WE DO NOT THINK THE ACT EMPOWERED CARRIERS AND LABOR
ORGANIZATIONS TO BARGAIN FOR ANY RESTRICTIONS ON THE INDIVIDUAL'S RIGHT
TO REVOKE HIS ASSIGNMENT, EVEN IF LATER, WHILE INSISTING ON THEM, THEY
CHOOSE TO DESCRIBE THEM AS PETTY.  REVERSED. 

FN1  THE ACT IS C. 347, 44 STAT. 577, C. 691, 48 STAT. 1185, AS
AMENDED, 45 U.S.C.  SECS. 151-163.   THE ACT WAS ORGINALLY ENACTED IN
1926 AND CONSIDERABLY REWRITTEN IN 1934. 

FN2  THE AMENDMENT ADDED A NEW PARAGRAPH TO SEC. 2 OF THE ACT, SEC. 2
ELEVENTH. 

FN3  THE CONTRACT PROVISION IS AS FOLLOWS:  "BOTH THE AUTHORIZATION
FORMS AND THE REVOCATION OF AUTHORIZATION FORMS SHALL BE REPRODUCED AND
FURNISHED AS NECESSARY BY THE ORGANIZATION WITHOUT COST TO THE
COMPANY.  THE ORGANIZATION SHALL ASSUME FULL RESPONSIBILITY FOR THE
PROCUREMENT AND EXECUTION OF THE FORMS BY EMPLOYEES AND FOR THE
DELIVERY OF SUCH FORMS TO THE COMPANY." 

THE TRAINMEN'S POSITION, CONCURRED IN BY THE COMPANY, IS THAT THIS
PROVISION MEANS THAT NO REVOCATION CARDS ARE TO BE RECOGNIZED "EXCEPT
THOSE REPRODUCED BY OUR ORGANIZATION."  WHILE THIS CONSTRUCTION OF THE
AGREEMENT IS HARDLY AN OBVIOUS ONE, IT IS THE CONSTRUCTION PUT ON THE
AGREEMENT BY THE PARTIES TO IT, THE SOUTHERN PACIFIC AND THE TRAINMEN,
AND SINCE PETITIONER IN THIS SUIT DOES NOT QUESTION IT AS A MATTER OF
CONSTRUCTION, WE OF COURSE ACCEPT IT HERE. 

SINCE THERE WAS NO QUESTION OF INTERPRETATION OR APPLICATION OF THE
COLLECTIVE AGREEMENT, BUT RATHER ONLY ONE OF ITS VALIDITY UNDER THE
STATUTE, THE CASE IS NOT ONE IN WHICH RESORT TO THE GRIEVANCE AND
ADJUSTMENT BOARD MACHINERY PROVIDED BY THE RAILWAY LABOR ACT WAS
REQUIRED.  "THIS DISPUTE INVOLVES THE VALIDITY OF THE CONTRACT, NOT ITS
MEANING."  BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768,
774.  CF. SLOCUM V. DELAWARE, L.&W.R. CO., 339 U.S. 239, 242-244.  THE
CASE PRESENTS AN EMPLOYEE DISPUTE AS MUCH, IF NOT MORE, WITH THE LABOR
ORGANIZATION AS WITH THE EMPLOYER.   CF. STEELE V. LOUISVILLE & N.R.
CO., 323 U.S. 192, 205. 

FN4  "THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY
CIVIL ACTION OR PROCEEDING ARISING UNDER ANY ACT OF CONGRESS REGULATING
COMMERCE OR PROTECTING TRADE AND COMMERCE AGAINST RESTRAINTS AND
MONOPOLIES."  THIS JURISDICTIONAL PROVISION, UNLIKE THE GENERAL
"ARISING UNDER" STATUTE, 28 U.S.C. SEC. 1331, REQUIRES NO MONETARY
JURISDICTIONAL AMOUNT.  SEE MULFORD V. SMITH, 307 U.S. 38, 46; TURNER,
DENNIS & LOWRY LUMBER CO. V. CHICAGO, M. & ST. P.R. CO., 271 U.S. 259,
261. 

FN5  PETITIONER ORIGINALLY LISTED 24 OTHERS AS BEING SIMILARLY
SITUATED WITH HIM.  THE RESPONDENTS STATED THAT 11 OF THESE WERE IN
FACT NOT SO SITUATED.  AFTER THIS, PETITIONER LISTED OTHERS.  IF IT
APPEARS IN FACT NECESSARY ON REMAND, THE DISTRICT COURT MAY CONDUCT
SUCH FURTHER INVESTIGATION OF THE MATTER AS WILL ALLOW IT TO ENTER AN
APPROPRIATE JUDGMENT. 

FN6  SECTION 2 FIFTH, AS ADDED BY SEC. 2, C. 691, 48 STAT. 1188, 45
U.S.C. SEC. 152 FIFTH, PROVIDED THAT "NO CARRIER, ITS OFFICERS, OR
AGENTS SHALL REQUIRE ANY PERSON SEEKING EMPLOYMENT TO SIGN ANY CONTRACT
OR AGREEMENT PROMISING TO JOIN OR NOT TO JOIN A LABOR ORGANIZATION  ...
"; SEC. 2 FOURTH, AS ADDED BY SEC. 2, 48 STAT. 1187, 45 U.S.C. SEC.
152 FOURTH, PROVIDED THAT "IT SHALL BE UNLAWFUL FOR ANY CARRIER  ...
TO INFLUENCE OR COERCE EMPLOYEES IN AN EFFORT TO INDUCE THEM TO JOIN OR
REMAIN OR NOT TO JOIN OR REMAIN MEMBERS OF ANY LABOR ORGANIZATION  ...
." 

THE 1951 AMENDMENT PERMITTED CARRIERS AND LABOR ORGANIZATIONS "TO
MAKE AGREEMENTS, REQUIRING, AS A CONDITION OF CONTINUED EMPLOYMENT,
THAT WITHIN SIXTY DAYS FOLLOWING THE BEGINNING OF SUCH EMPLOYMENT, OR
THE EFFECTIVE DATE OF SUCH AGREEMENTS, WHICHEVER IS THE LATER, ALL
EMPLOYEES SHALL BECOME MEMBERS OF THE LABOR ORGANIZATION REPRESENTING
THEIR CRAFT OR CLASS  ...  ."  SECTION 2 ELEVENTH (A), AS ADDED BY 64
STAT. 1238. 

FN7  SECTION 2 FOURTH, AS ADDED BY SEC. 2, C. 691, 48 STAT. 1187, 45
U.S.C. SEC. 152 FOURTH, PROVIDED THAT "IT SHALL BE UNLAWFUL FOR ANY
CARRIER  ...  TO DEDUCT FROM THE WAGES OF EMPLOYEES ANY DUES, FEES,
ASSESSMENTS, OR OTHER CONTRIBUTIONS PAYABLE TO LABOR ORGANIZATIONS, OR
TO COLLECT OR TO ASSIST IN THE COLLECTION OF ANY SUCH DUES, FEES,
ASSESSMENTS, OR OTHER CONTRIBUTIONS  ...  ." 

THE 1951 AMENDMENT PERMITTED CARRIERS AND LABOR ORGANIZATIONS,
SUBJECT TO THE PROVISO IN THE TEXT, "TO MAKE AGREEMENTS PROVIDING FOR
THE DEDUCTION BY SUCH CARRIER OR CARRIERS FROM THE WAGES OF ITS OR
THEIR EMPLOYEES IN A CRAFT OR CLASS AND PAYMENT TO THE LABOR
ORGANIZATION REPRESENTING THE CRAFT OR CLASS OF SUCH EMPLOYEES, OF ANY
PERIODIC DUES, INITIATION FEES, AND ASSESSMENTS (NOT INCLUDING FINES
AND PENALTIES), UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR
RETAINING MEMBERSHIP  ...  ."  SECTION 2 ELEVENTH (B), AS ADDED BY 64
STAT. 1238. 

THE 1951 AMENDMENT PROVIDED THAT "ANY PROVISIONS IN PARAGRAPHS FOURTH
AND FIFTH OF SECTION 2 OF THIS ACT IN CONFLICT HEREWITH ARE TO BE THE
EXTENT OF SUCH CONFLICT AMENDED."  SECTION 2 ELEVENTH (D), AS ADDED BY
64 STAT. 1239. 

FN8  H.R. REP. NO. 2811, 81ST CONG., 2D SESS., P. 6. 

FN9  THE PROVISO WAS INSERTED BY WAY OF AN AMENDMENT WHICH WAS
SUBMITTED BY SENATOR HILL ON BEHALF OF HIMSELF AND SENATOR TAFT, WITH
THE AGREEMENT OF THE COMMITTEE.  SEE 96 CONG. REC. 15735.  FOR THE
RESERVATIONS OF THE COMMITTEE MEMBERS WHICH DOUBTLESS LED TO THIS, SEE
NOTE 10, INFRA. 

FN10  AT THE TIME OF THE RENDITION OF THE SENATE COMMITTEE REPORT, S.
REP. NO. 2262, 81ST CONG., 2D SESS., SENATORS TAFT, H. ALEXANDER SMITH,
AND DONNELL ATTACHED A STATEMENT OF SUPPLEMENTARY VIEWS BY WHICH THEY
RESERVED THE RIGHT TO INTRODUCE AND SUPPORT ON THE FLOOR AMENDMENTS,
INTER ALIA, WHICH WOULD "CAUSE THE  ...  CHECK-OFF CONDITIONS OF
EMPLOYEES OF INDUSTRY COVERED BY THE RAILWAY LABOR ACT TO BE IN GENERAL
ACCORD WITH THE  ...  CHECK-OFF CONDITIONS OF EMPLOYEES OF OTHER
INDUSTRY."  ID., AT 5.  THESE THREE SENATORS HAD BEEN AMONG THOSE
RESPONSIBLE FOR PRESSING AN AMENDMENT TO THE SENATE COMMITTEE VERSION
OF THE TAFT-HARTLEY ACT WHICH RESTORED TO THE SENATE VERSION OF THAT
ACT THE PROVISION FOR INDIVIDUAL OPTION ON THE CHECKOFF WHICH THEY HAD
DESIRED DURING COMMITTEE DELIBERATION, AND NOW FOUND IN SEC. 302 (C)(4)
OF THAT ACT, 61 STAT. 157, 29 U.S.C. SEC. 186(C)(4).  SEE S. REP. NO.
105, 80TH CONG., 1ST SESS., P. 53.  THE PROVISION FINALLY ENACTED IN
THE RAILWAY LABOR AMENDMENT WAS QUITE SIMILAR TO THAT OF THE TAFT
HARTLEY ACT. 

FOR THE CONCERN WITH THE MATTER AT THE SENATE HEARINGS, SEE HEARINGS
BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON LABOR AND PUBLIC WELFARE,
UNITED STATES SENATE, ON S. 3295, 81ST CONG., 2D SESS., PP. 74, 86, 94,
173, 188, 208.  SENATOR DONNELL WAS PRIMARILY CONCERNED WITH THE
POINT.  ID., AT 74, 86, 94, 188. 

THERE WERE A FEW REFERENCES TO THE MATTER AT THE HOUSE HEARINGS.  SEE
HEARINGS BEFORE THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, HOUSE
OF REPRESENTATIVES, ON H.R. 7789, 81ST CONG., 2D SESS., PP. 33, 91,
261. 

FN11  THE HOUSE REPORT, NOTE 8, SUPRA, AT 6, HAD ARGUED:  "THERE IS A
STABILITY OF EMPLOYMENT RELATIONSHIPS IN THE RAILROAD INDUSTRY NOT
FOUND IN INDUSTRY GENERALLY.  THE COMMITTEE FELT THAT IF AN EMPLOYEE IS
REQUIRED TO BECOME AND REMAIN A MEMBER OF A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT WITH A RESULTING OBLIGATION TO PAY DUES,
INITIATION FEES, AND ASSESSMENTS, AND WITH THE SLIGHT PROSPECT OF
CHANGING EMPLOYMENT OF HIS UNION AFFILIATION WITHIN THE INDUSTRY, NO
STATUTORY REQUIREMENT FOR INDIVIDUAL ASSIGNMENTS SEEMED NECESSARY. 
FURTHERMORE, THE PHYSICAL NATURE OF RAILROAD AND AIRLINE OPERATIONS
WOULD MAKE A MANDATORY REQUIREMENT OF INDIVIDUAL ASSIGNMENTS AN
EXCEEDINGLY CUMBERSOME PROCEDURE.  EMPLOYEES OF A SINGLE CARRIER ARE
SCATTERED OVER THOUSANDS OF MILES OF TERRITORY AND MANY ARE LOCATED IN
ISOLATED SPOTS WHERE FEW OTHER PERSONS ARE EMPLOYED.  IT WOULD SEEM
THAT A MANDATORY REQUIREMENT FOR ASSIGNMENTS FROM INDIVIDUAL EMPLOYEES
WOULD RESULT IN CONFUSION AND LACK OF STABILITY  ...  ." 

FN12  THE ACT MAKES NO FORMAL RELATIONSHIP BETWEEN A UNION-SHOP
ARRANGEMENT AND A CHECKOFF ARRANGEMENT; UNDER IT THE PARTIES CAN
NEGOTIATE EITHER ONE WITHOUT THE OTHER, IF THEY ARE SO DISPOSED.  AND
OF COURSE, A LABOR ORGANIZATION MEMBER WHO IS SUBJECT TO A UNION-SHOP
ARRANGEMENT NEED NOT SUBSCRIBE TO THE CHECKOFF; HE CAN MAINTAIN HIS
STANDING BY PAYING HIS DUES PERSONALLY. 

FN13  THE RESPONDENTS MAKE SOME SUGGESTION THAT PETITIONER WAS NOT
HARMED BECAUSE IN ANY EVENT THE CARRIER COULD NOT CONTINUE A CHECKOFF
IN FAVOR OF THE TRAINMEN AFTER IT LEARNED THAT HE WAS NO LONGER A
MEMBER.  SECTION 2 ELEVENTH (C) PROVIDES THAT "NO CHECKOFF AGREEMENT
MADE PURSUANT TO SUBPARAGRAPH (B) SHALL PROVIDE FOR DEDUCTIONS FROM HIS
(AN EMPLOYEE WITHIN SPECIFIED CATEGORIES) WAGES FOR PERIODIC DUES,
INITIATION FEES, OR ASSESSMENTS PAYABLE TO ANY LABOR ORGANIZATION OTHER
THAN THAT IN WHICH HE HOLDS MEMBERSHIP."  64 STAT. 1238.  BUT THERE IS
NO SHOWING WHEN THE CARRIER RECEIVED NOTICE OF PETITIONER'S CHANGE OF
MEMBERSHIP; THE PAPERS USED BY HIM TO REVOKE THE CHECKOFF AND FURNISHED
THE CARRIER DID NOT REFER TO SUCH A CHANGE.  AND OF COURSE A WORKER
COULD REVOKE HIS CHECKOFF AUTHORIZATION AND REMAIN A MEMBER OF THE SAME
LABOR ORGANIZATION.  IT IS CLEAR THAT CONGRESS MEANT TO MAKE THE
CHECKOFF MACHINERY STAND ON ITS OWN FEET AND BE INDEPENDENT OF ANY
MACHINERY FOR CHANGING LABOR ORGANIZATIONS - NOTICE OF WHICH WOULD
ORDINARILY BE SENT ONLY TO THE ORGANIZATIONS INVOLVED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

I WOULD AFFIRM THE ACTION OF THE DISTRICT COURT AND THE COURT OF
APPEALS IN DISMISSING THIS PETITION FOR DECLARATORY JUDGMENT AND
INJUNCTION.  I AGREE, OF COURSE, THAT THE PROVISIONS OF THE RAILWAY
LABOR ACT AUTHORIZING RAILROAD WORKERS TO REVOKE THEIR PREVIOUSLY
EXECUTED "CHECKOFF" AGREEMENTS "AFTER THE EXPIRATION OF ONE YEAR" GRANT
WORKERS A RIGHT WHICH NEITHER UNION, NOR RAILROAD, NOR BOTH TOGETHER,
CAN TAKE AWAY IN WHOLE OR IN PART.  I AM OF THE OPINION, HOWEVER, THAT
THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE BROTHERHOOD OF RAILROAD
TRAINMEN (B.R.T.)  AND THE SOUTHERN PACIFIC COMPANY PROVIDES A
PROCEDURE WHICH SUBSTANTIALLY AIDS IN THE PRESERVATION OF THE
EMPLOYEES' STATUTORY RIGHT TO REVOKE THEIR ASSIGNMENTS AT WILL.  SINCE
THE CHECKOFF PROVISIONS OF THE ACT WERE NOT DESIGNED PRIMARILY TO AID
THE RAILROAD, IT IS NATURAL THAT THE GOVERNING CONTRACT BETWEEN
RAILROAD AND UNION SHOULD RELIEVE THE RAILROAD, AS MUCH AS POSSIBLE, OF
BURDENS AND EXPENSES.  NECESSARILY, CONGRESS IN AUTHORIZING CHECKOFF
ARRANGEMENTS CONTEMPLATED THAT THEY COULD BE ADMINISTERED IN A
BUSINESSLIKE MANNER, WITHOUT IMPOSITION OF UNDUE BURDEN ON THE
RAILROADS.  IT SEEMS PLAIN TO ME THAT THE PROVISION OF THE CONTRACT
REQUIRING THAT REVOCATION BE MADE THROUGH THE B.R.T. TO THE RAILROAD,
ON FORMS SUPPLIED BY THE B.R.T. IS, ON THE WHOLE, JUST AND PRACTICAL AS
APPLIED TO THE RAILROAD, THE UNION AND ITS MEMBERS. 

BUT IN ANY EVENT, THE CIRCUMSTANCES EXISTING HERE CALL FOR NO EXERCISE
OF A COURT'S DISCRETIONARY POWER EITHER TO ENTER A DECLARATORY JUDGMENT
OR TO GRANT AN INJUNCTION.  THIS SUIT WAS FILED APRIL 12, 1957 - 10
DAYS AFTER B.R.T. IN RESPONSE TO PETITIONER'S LETTER TERMINATING HIS
MEMBERSHIP AND REVOKING HIS WAGE ASSIGNMENT AUTHORIZATION MAILED TO
PETITIONER FOR HIS SIGNATURE THE REVOCATION FORM PROVIDED FOR IN THE
COLLECTIVE BARGAINING CONTRACT.  AT THE TIME OF FILING SUIT PETITIONER
HAD NO MORE THAN A HIGHLY QUESTIONABLE CLAIM FOR ONE MONTH'S DUES -
SEVERAL DOLLARS.  HE ALSO HAD IN HIS POSSESSION THE B.R.T. FORM WHICH
WOULD HAVE BEEN RECOGNIZED BOTH BY THE B.R.T. AND THE RAILROAD. 
PETITIONER THEREFORE COULD HAVE AVOIDED ANY FUTURE DEDUCTIONS, AND ANY
POSSIBLE DAMAGE TO HIMSELF, MERELY BY SIGNING AND MAILING THAT FORM. 
AND HE COULD HAVE RECOVERED THE ONE MONTH'S DUES, IF ILLEGALLY
DEDUCTED, BY SUIT AGAINST THE RAILROAD. 

EQUITY'S EXTRAORDINARY POWER TO GRANT INJUNCTIVE RELIEF TO PREVENT
IRREPARABLE DAMAGE, AND IN FACT, DID NOT EVEN ALLEGE IT.  SIMILARLY, HE
COULD NOT CLAIM HE LACKED AN ADEQUATE REMEDY AT LAW.  NOR WOULD
DECLARATORY RELIEF BE APPROPRIATE, FOR AS WE HAVE SAID: 

"THE DECLARATORY JUDGMENT PROCEDURE MAY BE RESORTED TO ONLY IN THE
SOUND DISCRETION OF THE COURT AND WHERE THE INTERESTS OF JUSTICE WILL
BE ADVANCED AND AN ADEQUATE AND EFFECTIVE JUDGMENT MAY BE RENDERED." 
ALABAMA FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 462.    THE
QUESTION WE FINALLY HAVE HERE, THEREFORE, IS WHETHER THE DISTRICT COURT
AND THE COURT OF APPEALS SHOULD BE REVERSED BECAUSE THEY REFUSED TO USE
THE COURT'S PROCESS IN A CONTROVERSY WHICH, IN REALITY, IS BETWEEN TWO
UNIONS OVER WHICH ONE'S PRINTED FORM SHALL BE USED TO REVOKE AN
ASSIGNMENT.  PERHAPS JUDICIAL HISTORY CAN PRODUCE NO OTHER CASE IN
WHICH THE EXTRAORDINARY RELIEF THE COURT NOW ORDERS GRANTED HAS BEEN
ACCORDED UNDER COMPARABLE CIRCUMSTANCES.  FOR ANY POSSIBLE INJURY TO
PETITIONER WOULD HAVE BEEN AVOIDED EXCEPT FOR HIS STUBBORN REFUSAL TO
SIGN A SIMPLE, 11-LINE FORM IDENTICAL TO ONE HE HAD ALREADY SIGNED. 
THE FEDERAL COURTS HAVE TOO MUCH WORK TO DO IN ADJUDICATING REAL,
GENUINE, MEANINGFUL CASES OR CONTROVERSIES TO HAVE THEIR TIME CONSUMED
IN CONSIDERATION OF TRIVIAL DISPUTES LIKE THIS ONE.  I WOULD AFFIRM THE
DECISIONS BELOW. 
..END :






COMMERCIAL COMMUNICATIONS, INC. V. PUBLIC UTILITIES COMMISSION OF
CALIFORNIA 359 U.S. 341 


NO. 719.  DECIDED APRIL 27, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  50 CAL. 2D 512, 327 P.2D 513. 


COMMERCIAL COMMUNICATIONS, INC., ET AL. V. PUBLIC UTILITIES COMMISION OF
CALIFORNIA ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE BRENNAN TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :











COMMERCIAL BARGE LINES V. UNITED STATES 359 U.S. 342 


NO. 721.  DECIDED APRIL 27, 1959 - 166 F. SUPP. 867, AFFIRMED. 


COMMERCIAL BARGE LINES, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















DON MCCULLAGH, INC. V. MICHIGAN, DEPARTMENT OF REVENUE 359 U.S. 343 


NO. 756.  DECIDED APRIL 27, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  354 MICH. 413, 93
N.W.2D 252. 


DON MCCULLAGH, INC., V. MICHIGAN, DEPARTMENT OF REVENUE. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















GLUS V. BROOKLYN EASTERN DISTRICT TERMINAL 359 U.S. 231 


NO. 446.  ARGUED MARCH 2, 1959 - DECIDED APRIL 20, 1959 - 253 F.2D 957,
REVERSED. 


CLAIMING THAT RESPONDENT WAS ESTOPPED FROM PLEADING THE STATUTE OF
LIMITATIONS BECAUSE IT HAD INDUCED DELAY BY REPRESENTING TO PETITIONER
THAT HE HAD SEVEN YEARS IN WHICH TO SUE, PETITIONER BROUGHT ACTION
AGAINST RESPONDENT IN A FEDERAL DISTRICT COURT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, AFTER EXPIRATION OF THE THREE-YEAR STATUTORY
PERIOD OF LIMITATION, TO RECOVER DAMAGES FOR AN INDUSTRIAL DISEASE HE
ALLEGEDLY CONTRACTED WHILE WORKING FOR RESPONDENT.  HELD:  IF
PETITIONER CAN PROVE THAT RESPONDENT'S RESPONSIBLE AGENTS CONDUCTED
THEMSELVES IN SUCH A WAY THAT HE WAS JUSTIFIABLY MISLED INTO A GOOD
FAITH BELIEF THAT HE COULD BEGIN HIS ACTION AT ANY TIME WITHIN SEVEN
YEARS AFTER IT ACCRUED, HE IS ENTITLED TO HAVE HIS CASE TRIED ON THE
MERITS, AND THE DISTRICT COURT ERRED IN DISMISSING THE CASE ON THE
GROUND THAT IT WAS BARRED BY THE THREE-YEAR LIMITATION.  PP. 231-235. 

GLUS V. BROOKLYN EASTERN DISTRICT TERMINAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1957 PETITIONER BROUGHT THIS ACTION UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT TO RECOVER DAMAGES FOR AN INDUSTRIAL DISEASE HE ALLEGEDLY
CONTRACTED IN 1952 WHILE WORKING FOR RESPONDENT.  (FN1)  ALTHOUGH SEC.
6 OF THE ACT PROVIDES THAT "NO ACTION SHALL BE MAINTAINED UNDER THIS
CHAPTER UNLESS COMMENCED WITHIN THREE YEARS FROM THE DAY THE CAUSE OF
ACTION ACCRUED," PETITIONER CLAIMED THAT RESPONDENT WAS ESTOPPED FROM
RAISING THIS LIMITATION BECAUSE IT HAD INDUCED THE DELAY BY
REPRESENTING TO PETITIONER THAT HE HAD SEVEN YEARS IN WHICH TO SUE. 
(FN2)  RESPONDENT CONTENDED THAT WHILE ESTOPPEL OFTEN PREVENTS
DEFENDANTS FROM RELYING ON STATUTES OF LIMITATIONS IT CAN HAVE NO SUCH
EFFECT IN FELA CASES FOR THERE THE TIME LIMITATION IS AN INTEGRAL PART
OF A NEW CAUSE OF ACTION AND THAT CAUSE IS IRRETRIEVABLY LOST AT THE
END OF THE STATUTORY PERIOD.  THE DISTRICT COURT, AFTER DISCUSSING TWO
LINES OF CASES "IN SHARP CONFLICT," ONE SUPPORTING RESPONDENT (FN3) AND
ONE SUPPORTING PETITIONER, (FN4) CONCLUDED WITH APPARENT RELUCTANCE
THAT IT WAS REQUIRED BY PRIOR DECISIONS OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT TO DISMISS PETITIONER'S SUIT.  (FN5)  THE COURT OF
APPEALS AFFIRMED, SAYING "FOR THE REASONS WELL STATED BY THE DISTRICT
COURT WE SHOULD NOT ATTEMPT TO RETRACE OUR FOOTSTEPS NOW, BUT MAY WELL
AWAIT RESOLUTION OF THE CONFLICT BY THE SUPREME COURT."  253 F.2D 957,
958.  SINCE THE QUESTION IS IMPORTANT AND RECURRING WE GRANTED
CERTIORARI.  358 U.S. 814. 

TO DECIDE THE CASE WE NEED LOOK NO FURTHER THAN THE MAXIM THAT NO MAN
MAY TAKE ADVANTAGE OF HIS OWN WRONG.  DEEPLY ROOTED IN OUR
JURISPRUDENCE THIS PRINCIPLE HAS BEEN APPLIED IN MANY DIVERSE CLASSES
OF CASES BY BOTH LAW AND EQUITY COURTS (FN6) AND HAS FREQUENTLY BEEN
EMPLOYED TO BAR INEQUITABLE RELIANCE ON STATUTES OF LIMITATIONS.  (FN7)
IN SCHROEDER V. YOUNG, 161 U.S. 334, THIS COURT ALLOWED A DEBTOR TO
REDEEM PROPERTY SOLD TO SATISFY A JUDGMENT, AFTER THE STATUTORY TIME
FOR REDEMPTION HAD EXPIRED ALTHOUGH THE STATUTE GRANTING THE RIGHT TO
REDEEM ALSO LIMITED THAT RIGHT AS TO TIME.  (FN8)  THE COURT HELD THAT
THE PURCHASERS COULD NOT RELY ON THE LIMITATION BECAUSE ONE OF THEM HAD
TOLD THE DEBTOR "THAT HE WOULD NOT BE PUSHED, THAT THE STATUTORY TIME
TO REDEEM WOULD NOT BE INSISTED UPON, AND THE DEBTOR BELIEVED AND
RELIED UPON SUCH ASSURANCE."  THE COURT POINTED OUT THAT IN "SUCH
CIRCUMSTANCES THE COURTS HAVE HELD WITH GREAT UNANIMITY THAT THE
PURCHASER IS ESTOPPED TO INSIST UPON THE STATUTORY PERIOD,
NOTWITHSTANDING THE ASSURANCES WERE NOT IN WRITING AND WERE MADE
WITHOUT CONSIDERATION, UPON THE GROUND THAT THE DEBTOR WAS LULLED INTO
A FALSE SECURITY."  161 U.S., AT 344.  (FN9)  AS MR. JUSTICE MILLER
EXPRESSED IT IN INSURANCE CO. V. WILKINSON, 13 WALL.  222, 233, "THE
PRINCIPLE IS THAT WHERE ONE PARTY HAS BY HIS REPRESENTATIONS OR HIS
CONDUCT INDUCED THE OTHER PARTY TO A TRANSACTION TO GIVE HIM AN
ADVANTAGE WHICH IT WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE FOR HIM
TO ASSERT, HE WOULD NOT IN A COURT OF JUSTICE BE PERMITTED TO AVAIL
HIMSELF OF THAT ADVANTAGE.  AND ALTHOUGH THE CASES TO WHICH THIS
PRINCIPLE IS TO BE APPLIED ARE NOT AS WELL DEFINED AS COULD BE WISHED,
THE GENERAL DOCTRINE IS WELL UNDERSTOOD AND IS APPLIED BY COURTS OF LAW
AS WELL AS EQUITY WHERE THE TECHNICAL ADVANTAGE THUS OBTAINED IS SET UP
AND RELIED ON TO DEFEAT THE ENDS OF JUSTICE OR ESTABLISH A DISHONEST
CLAIM." 

WE HAVE BEEN SHOWN NOTHING IN THE LANGUAGE OR HISTORY OF THE FEDERAL
EMPLOYERS' LIABILITY ACT TO INDICATE THAT THIS PRINCIPLE OF LAW, OLDER
THAN THE COUNTRY ITSELF, WAS NOT TO APPLY IN SUITS ARISING UNDER THAT
STATUTE.  (FN10)  NOR HAS COUNSEL MADE ANY CONVINCING ARGUMENTS WHICH
MIGHT LEAD US TO MAKE AN EXCEPTION TO THE DOCTRINE OF ESTOPPEL IN THIS
CASE.  TO BE SURE LANGUAGE IN SOME DECISIONS OF THIS COURT CAN BE TAKEN
AS SUPPORTING SUCH AN EXCEPTION.  (FN11)  BUT THAT LANGUAGE IS IN DICTA
AND IS NEITHER BINDING NOR PERSUASIVE.  ACCORDINGLY, WE HOLD THAT IT
WAS ERROR TO DISMISS THIS CASE.  DESPITE THE DELAY IN FILING HIS SUIT
PETITIONER IS ENTITLED TO HAVE HIS CAUSE TRIED ON THE MERITS IF HE CAN
PROVE THAT RESPONDENT'S RESPONSIBLE AGENTS, AGENTS WITH SOME AUTHORITY
IN THE PARTICULAR MATTER, CONDUCTED THEMSELVES IN SUCH A WAY THAT
PETITIONER WAS JUSTIFIABLY MISLED INTO A GOOD-FAITH BELIEF THAT HE
COULD BEGIN HIS ACTION AT ANY TIME WITHIN SEVEN YEARS AFTER IT HAD
ACCRUED. 

IT IS NO ANSWER TO SAY, AS RESPONDENT DOES, THAT THE REPRESENTATIONS
ALLEGED WERE OF LAW AND NOT OF FACT AND THEREFORE COULD NOT JUSTIFIABLY
BE RELIED ON BY PETITIONER.  WHETHER THEY COULD OR COULD NOT DEPENDS ON
WHO MADE THEM AND THE CIRCUMSTANCES IN WHICH THEY WERE MADE.  SEE
SCARBOROUGH V. ATLANTIC COAST LINE R. CO., 190 F.2D 935.  SUCH
QUESTIONS CANNOT BE DECIDED AT THIS STAGE OF THE PROCEEDINGS. 

IT MAY WELL BE THAT PETITIONER'S COMPLAINT AS NOW DRAWN IS TOO VAGUE,
BUT THAT IS NO GROUND FOR DISMISSING HIS ACTION.  CF. CONLEY V. GIBSON,
355 U.S. 41, 47-48.  HIS ALLEGATIONS ARE SUFFICIENT FOR THE PRESENT. 
WHETHER PETITIONER CAN IN FACT MAKE OUT A CASE CALLING FOR APPLICATION
OF THE DOCTRINE OF ESTOPPEL MUST AWAIT TRIAL.  REVERSED. 

FN1  35 STAT. 65, AS AMENDED, 45 U.S.C. SECS. 51-60. 

FN2  PARAGRAPH 9 OF PETITIONER'S COMPLAINT STATES, "SUBSEQUENT
THERETO DEFENDANT'S AGENTS, SERVANTS AND EMPLOYEES FRAUDULENTLY OR
UNINTENTIONALLY MISSTATED TO PLAINTIFF THAT HE HAD SEVEN YEARS WITHIN
WHICH TO BRING AN ACTION AGAINST SAID DEFENDANT AS A RESULT OF HIS
INDUSTRIAL DISEASE AND IN RELIANCE THEREON PLAINTIFF WITHHELD SUIT
UNTIL THE PRESENT TIME." 

FN3  AMERICAN R. CO. V. CORONAS, 230 F. 545; BELL V. WABASH R. CO.,
58 F.2D 569; DAMIANO V. PENNSYLVANIA R. CO., 161 F.2D 534; AHERN V.
SOUTH BUFFALO R. CO., 303 N.Y. 545, 563, 104 N.E.2D 898, 908, AFF'D ON
OTHER GROUNDS, 344 U.S. 367. 

FN4  SCARBOROUGH V. ATLANTIC COAST LINE R. CO., 178 F.2D 253, 190
F.2D 935, 202 F.2D 84; FRAVEL V. PENNSYLVANIA R. CO., 104 F. SUPP. 84;
TORAN V. NEW YORK, N.H.&H.R. CO., 108 F. SUPP. 564. 

FN5  THE DISTRICT COURT NOTED, "THE REASONING OF PETITIONER'S CASES
IS NOT UNPERSUASIVE.  BUT I FEEL THAT I AM BOUND BY THE DECISIONS OF
THE COURT OF APPEALS OF THIS CIRCUIT  ...  ."  154 F. SUPP. 863, 866. 

FN6  SEE, E.G., THE ARROGANTE BARCELONES, 7 WHEAT.  496, 519; SPRIGG
V. BANK OF MOUNT PLEASANT, 10 PET. 257, 264-265; VAN RENSSELAER V.
KEARNEY, 11 HOW.  297, 322-329; GREGG V. VON PHUL, 1 WALL.  274, 280
281; MORGAN V. RAILROAD CO., 96 U.S. 716, 720-722; REYNOLDS V. UNITED
STATES, 98 U.S. 145, 158-160; DICKERSON V. COLGROVE, 100 U.S. 578; KIRK
V. HAMILTON, 102 U.S. 68, 76-79; DANIELS V. TEARNEY, 102 U.S. 415, 420
422. 

FN7  SEE, E.G., HOWARD V. WEST JERSEY & S.R. CO., 102 N.J. EQ. 517,
141 A. 755, AFF'D ON OPINION BELOW, 104 N.J. EQ. 201, 144 A. 919.  SEE
ALSO DAWSON, ESTOPPEL AND STATUTES OF LIMITATION, 34 MICH. L. REV. 1;
CASES COLLECTED IN 77 A.L.R. 1044; 130 A.L.R. 8; 15 A.L.R.2D 500; 24
A.L.R.2D 1413. 

FN8  COMPARE 2 UTAH COMP. LAWS (1888), TIT. IX, SECS. 3442-3445
(DERIVED FROM ACT OF FEB. 1870, UTAH LAWS 1870, P. 17, SECS. 229-232)
WITH 2 UTAH COMP. LAWS (1888), TIT. II, SECS. 3129-3168.  SEE ALSO ACT
OF JAN. 18, 1867, UTAH LAWS 1867, P. 32. 

FN9  SEE ALSO GRAFFAM V. BURGESS, 117 U.S. 180, WHERE A JUDGMENT
DEBTOR WHO HAD BEEN DECEIVED BY HIS CREDITORS WAS ALLOWED TO REDEEM
LAND SOLD ON EXECUTION EVEN THOUGH THE TIME LIMITATION ON REDEMPTIONS
HAD EXPIRED AND DESPITE A DISSENT WHICH ARGUED THAT IT WAS "OF THE
UTMOST IMPORTANCE ...  THAT THE RIGHT THUS GRANTED SHOULD BE STRICTLY
EXERCISED ACCORDING TO THE STATUTE.  FOR  ... THE FAVOR OF ALLOWING THE
DEBTOR ONE YEAR MORE TO SAVE HIS LAND  ...  ONLY ADDS TO HIS OBLIGATION
TO EXERCISE THE RIGHT THUS GRANTED IN STRICT ACCORDANCE WITH ITS
TERMS."  ID., AT 196. 

FN10  SEE DICKERSON V. COLGROVE, 100 U.S. 578, 582 (CITING
DUSCUSSIONS OF THE DOCTRINE BY COKE AND LITTLETON).  SEE ALSO SPRIGG V.
BANK OF MOUNT PLEASANT, 10 PET. 257, 265; VAN RENSSELAER V. KEARNEY, 11
HOW, 297, 322-325. 

FN11  SEE, E.G., PHILLIPS CO. V. GRAND TRUNK W.R. CO., 236 U.S. 622,
666-668; ATLANTIC COAST LINE R. CO. V. BURNETTE, 239 U.S. 199; DANZER &
CO. V. GULF & S.I.R. CO., 268 U.S. 633, 637.  BUT CF. THE HARRISBURG,
119 U.S. 199, 214, "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.  NO QUESTIONS ARISES IN THIS CASE
AS TO THE POWER OF A COURT OF ADMIRALTY TO ALLOW AN EQUITABLE EXCUSE
FOR DELAY IN SUING, BECAUSE NO EXCUSE OF ANY KIND HAS BEEN SHOWN." 
..END :











SAN DIEGO BUILDING TRADES COUNCIL V. GARMON 359 U.S. 236 


NO. 66.  ARGUED JANUARY 20, 1959 - DECIDED APRIL 20, 1959 - 49 CAL. 2D
595, 320 P.2D 473, REVERSED. 


ALTHOUGH THE NATIONAL LABOR RELATIONS BOARD HAD DECLINED TO EXERCISE
JURISDICTION, A CALIFORNIA STATE COURT WAS PRECLUDED BY THE NATIONAL
LABOR RELATIONS ACT FROM AWARDING DAMAGES TO RESPONDENTS UNDER STATE
LAW FOR ECONOMIC INJURIES RESULTING FROM THE PEACEFUL PICKETING OF
THEIR PLANT BY LABOR UNIONS WHICH HAD NOT BEEN SELECTED BY A MAJORITY
OF RESPONDENTS' EMPLOYEES AS THEIR BARGAINING AGENTS.  PP. 237-248. 

(A)  WHEN AN ACTIVITY IS ARGUABLY SUBJECT TO SEC. 7 OR SEC. 8 OF THE
NATIONAL LABOR RELATIONS ACT, AS WAS THE PICKETING HERE INVOLVED, THE
STATES AS WELL AS THE FEDERAL COURTS MUST DEFER TO THE EXCLUSIVE
COMPETENCE OF THE NATIONAL LABOR RELATIONS BOARD.  P. 245. 

(B)  FAILURE OF THE NATIONAL LABOR RELATIONS BOARD TO ASSUME
JURISDICTION DOES NOT LEAVE THE STATES FREE TO REGULATE ACTIVITIES THEY
WOULD OTHERWISE BE PRECLUDED FROM REGULATING.  PP. 245-246. 

(C)  SINCE THE NATIONAL LABOR RELATIONS BOARD HAS NOT ADJUDICATED THE
STATUS OF THE CONDUCT HERE INVOLVED, AND SINCE SUCH ACTIVITY IS
ARGUABLY WITHIN THE COMPASS OF SEC. 7 OR SEC. 8 OF THE ACT, THE STATE'S
JURISDICTION IS DISPLACED.  P. 246. 

(D)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT ALL THAT
IS INVOLVED HERE IS AN ATTEMPT BY THE STATE TO AWARD DAMAGES, SINCE
STATE REGULATION CAN BE AS EFFECTIVELY EXERTED THROUGH AN AWARD OF
DAMAGES AS THROUGH SOME FORM OF PREVENTIVE RELIEF.  PP. 246-247. 

(E)  UNITED AUTOMOBILE WORKERS V. RUSSELL, 356 U.S. 634, AND UNITED
CONSTRUCTION WORKERS V. LABURNUM CORP., 347 U.S. 656, DISTINGUISHED. 
PP. 247-248. 

SAN DIEGO BUILDING TRADES COUNCIL ET AL. V. GARMON ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS BEFORE US FOR THE SECOND TIME.  THE PRESENT LITIGATION
BEGAN WITH A DISPUTE BETWEEN THE PETITIONING UNIONS AND RESPONDENTS, CO
PARTNERS IN THE BUSINESS OF SELLING LUMBER AND OTHER MATERIALS IN
CALIFORNIA.  RESPONDENTS BEGAN AN ACTION IN THE SUPERIOR COURT FOR THE
COUNTY OF SAN DIEGO, ASKING FOR AN INJUNCTION AND DAMAGES.  UPON
HEARING, THE TRIAL COURT FOUND THE FOLLOWING FACTS.  IN MARCH OF 1953
THE UNIONS SOUGHT FROM RESPONDENTS AN AGREEMENT TO RETAIN IN THEIR
EMPLOY ONLY THOSE WORKERS WHO WERE ALREADY MEMBERS OF THE UNIONS, OR
WHO APPLIED FOR MEMBERSHIP WITHIN THIRTY DAYS.  RESPONDENTS REFUSED,
CLAIMING THAT NONE OF THEIR EMPLOYEES HAD SHOWN A DESIRE TO JOIN A
UNION, AND THAT, IN ANY EVENT, THEY COULD NOT ACCEPT SUCH AN
ARRANGEMENT UNTIL ONE OF THE UNIONS HAD BEEN DESIGNATED BY THE
EMPLOYEES AS A COLLECTIVE BARGAINING AGENT.  THE UNIONS BEGAN AT ONCE
PEACEFULLY TO PICKET THE RESPONDENTS' PLACE OF BUSINESS, AND TO EXERT
PRESSURE ON CUSTOMERS AND SUPPLIERS IN ORDER TO PERSUADE THEM TO STOP
DEALING WITH RESPONDENTS.  THE SOLE PURPOSE OF THESE PRESSURES WAS TO
COMPEL EXECUTION OF THE PROPOSED CONTRACT.  THE UNIONS CONTESTED THIS
FINDING, CLAIMING THAT THE ONLY PURPOSE OF THEIR ACTIVITIES WAS TO
EDUCATE THE WORKERS AND PERSUADE THEM TO BECOME MEMBERS.  ON THE BASIS
OF ITS FINDINGS, THE COURT ENJOINED THE UNIONS FROM PICKETING AND FROM
THE USE OF OTHER PRESSURES TO FORCE AN AGREEMENT, UNTIL ONE OF THEM HAD
BEEN PROPERLY DESIGNATED AS A COLLECTIVE BARGAINING AGENT.  THE COURT
ALSO AWARDED $1,000 DAMAGES FOR LOSSES FOUND TO HAVE BEEN SUSTAINED. 

AT THE TIME THE SUIT IN THE STATE COURT WAS STARTED, RESPONDENTS HAD
BEGUN A REPRESENTATION PROCEEDING BEFORE THE NATIONAL LABOR RELATIONS
BOARD.  THE REGIONAL DIRECTOR DECLINED JURISDICTION, PRESUMABLY BECAUSE
THE AMOUNT OF INTERSTATE COMMERCE INVOLVED DID NOT MEET THE BOARD'S
MONETARY STANDARDS IN TAKING JURISDICTION. 

ON APPEAL, THE CALIFORNIA SUPREME COURT SUSTAINED THE JUDGMENT OF THE
SUPERIOR COURT, 45 CAL. 2D 657, 291 P.2D 1, HOLDING THAT, SINCE THE
NATIONAL LABOR RELATIONS BOARD HAD DECLINED TO EXERCISE ITS
JURISDICTION, THE CALIFORNIA COURTS HAD POWER OVER THE DISPUTE.  THEY
FURTHER DECIDED THAT THE CONDUCT OF THE UNION CONSTITUTED AN UNFAIR
LABOR PRACTICE UNDER SEC. 8(B)(2) OF THE NATIONAL LABOR RELATIONS ACT,
AND HENCE WAS NOT PRIVILEGED UNDER CALIFORNIA LAW.  AS THE CALIFORNIA
COURT ITSELF LATER POINTED OUT THIS DECISION DID NOT SPECIFY WHAT LAW,
STATE OR FEDERAL, WAS THE BASIS OF THE RELIEF GRANTED.  BOTH STATE AND
FEDERAL LAW PLAYED A PART BUT, "ANY DISTINCTION AS BETWEEN THOSE LAWS
WAS NOT THOROUGHLY EXPLORED."  GARMON V. SAN DIEGO BLDG. TRADES
COUNCIL, 49 CAL. 2D 595, 602, 320 P.2D 473, 477. 

WE GRANTED CERTIORARI, 351 U.S. 923, AND DECIDED THE CASE TOGETHER
WITH GUSS V. UTAH LABOR RELATIONS BOARD, 353 U.S. 1, AND AMALGAMATED
MEAT CUTTERS V. FAIRLAWN MEATS, INC., 353 U.S. 20.  IN THOSE CASES, WE
HELD THAT THE REFUSAL OF THE NATIONAL LABOR RELATIONS BOARD TO ASSERT
JURISDICTION DID NOT LEAVE WITH THE STATES POWER OVER ACTIVITIES THEY
OTHERWISE WOULD BE PRE-EMPTED FROM REGULATING.  BOTH GUSS AND FAIRLAWN
INVOLVED RELIEF OF AN EQUITABLE NATURE.  IN VACATING AND REMANDING THE
JUDGMENT OF THE CALIFORNIA COURT IN THIS CASE, WE POINTED OUT THAT
THOSE CASES CONTROLLED THIS ONE, "IN ITS MAJOR ASPECTS."  353 U.S., AT
28.  HOWEVER, SINCE IT WAS NOT CLEAR WHETHER THE JUDGMENT FOR DAMAGES
WOULD BE SUSTAINED UNDER CALIFORNIA LAW, WE REMANDED TO THE STATE COURT
FOR CONSIDERATION OF THAT LOCAL LAW ISSUE.  THE FEDERAL QUESTION,
NAMELY, WHETHER THE NATIONAL LABOR RELATIONS ACT PRECLUDED CALIFORNIA
FROM GRANTING AN AWARD FOR DAMAGES ARISING OUT OF THE CONDUCT IN
QUESTION, COULD NOT BE APPROPRIATELY DECIDED UNTIL THE ANTECEDENT STATE
LAW QUESTION WAS DECIDED BY THE STATE COURT. 

ON REMAND, THE CALIFORNIA COURT, IN ACCORDANCE WITH OUR DECISION IN
GUSS, SET ASIDE THE INJUNCTION, BUT SUSTAINED THE AWARD OF DAMAGES. 
GARMON V. SAN DIEGO BLDG. TRADES COUNCIL, 49 CAL. 2D 595, 320 P.2D 473
(THREE JUDGES DISSENTING).  AFTER DECIDING THAT CALIFORNIA HAD
JURISDICTION TO AWARD DAMAGES FOR INJURIES CAUSED BY THE UNION'S
ACTIVITIES, THE CALIFORNIA COURT HELD THAT THOSE ACTIVITIES CONSTITUTED
A TORT BASED ON AN UNFAIR LABOR PRACTICE UNDER STATE LAW.  IN SO
HOLDING THE COURT RELIED ON GENERAL TORT PROVISIONS OF THE CALIFORNIA
CIVIL CODE, SECS. 1677, 1708, AS WELL AS STATE ENACTMENTS DEALING
SPECIFICALLY WITH LABOR RELATIONS, CALIF. LABOR CODE, SEC. 923 (1937);
IBID., SECS. 1115-1118 (1947). 

WE AGAIN GRANTED CERTIORARI, 357 U.S. 925, TO DETERMINE WHETHER THE
CALIFORNIA COURT HAD JURISDICTION TO AWARD DAMAGES ARISING OUT OF
PEACEFL UNION ACTIVITY WHICH IT COULD NOT ENJOIN. 

THE ISSUE IS A VARIANT OF A FAMILIAR THEME.  IT BEGAN WITH ALLEN
BRADLEY V. WISCONSIN BOARD, 315 U.S. 740, WAS GREATLY INTENSIFIED BY
LITIGATION FLOWING FROM THE TAFT-HARTLEY ACT, AND HAS RECURRED HERE IN
ALMOST A SCORE OF CASES DURING THE LAST DECADE.  THE COMPREHENSIVE
REGULATION OF INDUSTRIAL RELATIONS BY CONGRESS, NOVEL FEDERAL
LEGISLATION TWENTY-FIVE YEARS AGO BUT NOW AN INTEGRAL PART OF OUR
ECONOMIC LIFE, INEVITABLY GAVE RISE TO DIFFICULT PROBLEMS OF FEDERAL
STATE RELATIONS.  TO BE SURE, IN THE ABSTRACT THESE PROBLEMS CAME TO US
AS ORDINARY QUESTIONS OF STATUTORY CONSTRUCTION.  BUT THEY INVOLVED A
MORE COMPLICATED AND PERCEPTIVE PROCESS THAN IS CONVEYED BY THE
DELUSIVE PHRASE, "ASCERTAINING THE INTENT OF THE LEGISLATURE."  MANY OF
THESE PROBLEMS PROBABLY COULD NOT HAVE BEEN, AT ALL EVENTS WERE NOT,
FORSEEN BY THE CONGRESS.  OTHERS WERE ONLY DIMLY PERCEIVED AND THEIR
PRECISE SCOPE ONLY VAGUELY DEFINED.  THIS COURT WAS CALLED UPON TO
APPLY A NEW AND COMPLICATED LEGISLATIVE SCHEME, THE AIMS AND SOCIAL
POLICY OF WHICH WERE DRAWN WITH BROAD STROKES WHILE THE DETAILS HAD TO
BE FILLED IN, TO NO SMALL EXTENT, BY THE JUDICIAL PROCESS.  RECENTLY WE
INDICATED THE TASK THAT WAS THUS CAST UPON THIS COURT IN CARRYING OUT
WITH FIDELITY THE PURPOSES OF CONGRESS, BUT DOING SO BY GIVING
APPLICATION TO CONGRESSIONAL INCOMPLETION.  WHAT WE SAID IN WEBER V.
ANHEUSER-BUSCH, INC., 348 U.S. 468, DESERVES REPETITION, BECAUSE THE
CONSIDERATIONS THERE OUTLINED GUIDE THIS DAY'S DECISION: 

"BY THE TAFT-HARTLEY ACT, CONGRESS DID NOT EXHAUST THE FULL SWEEP OF
LEGISLATIVE POWER OVER INDUSTRIAL RELATIONS GIVEN BY THE COMMERCE
CLAUSE.  CONGRESS FORMULATED A CODE WHEREBY IT OUTLAWED SOME ASPECTS OF
LABOR ACTIVITIES AND LEFT OTHERS FREE FOR THE OPERATION OF ECONOMIC
FORCES.  AS TO BOTH CATEGORIES, THE AREAS THAT HAVE BEEN PRE-EMPTED BY
FEDERAL AUTHORITY AND THEREBY WITHDRAWN FROM STATE POWER ARE NOT
SUSCEPTIBLE OF DELIMITATION BY FIXED METES AND BOUNDS.  OBVIOUS
CONFLICT, ACTUAL OR POTENTIAL, LEADS TO EASY JUDICIAL EXCLUSION OF
STATE ACTION.  SUCH WAS THE SITUATION IN GARNER V. TEAMSTERS UNION,
SUPRA.  BUT AS THE OPINION IN THAT CASE RECALLED, THE LABOR MANAGEMENT
RELATIONS ACT 'LEAVES MUCH TO THE STATES, THOUGH CONGRESS HAS REFRAINED
FROM TELLING US HOW MUCH.'  346 U.S., AT 488.  THIS PENUMBRAL AREA CAN
BE RENDERED PROGRESSIVELY CLEAR ONLY BY THE COURSE OF LITIGATION."  348
U.S., AT 480-481. 

THE CASE BEFORE US CONCERNS ONE OF THE MOST TEASING AND FREQUENTLY
LITIGATED AREAS OF INDUSTRIAL RELATIONS, THE MULTITUDE OF ACTIVITIES
REGULATED BY SECS. 7 AND 8 OF THE NATIONAL LABOR RELATIONS ACT.  61
STAT. 140, 29 U.S.C. SECS. 157, 158.  THESE BROAD PROVISIONS GOVERN
BOTH PROTECTED "CONCERTED ACTIVITIES" AND UNFAIR LABOR PRACTICES.  THEY
REGULATE THE VITAL, ECONOMIC INSTRUMENTS OF THE STRIKE AND THE PICKET
LINE, AND IMPINGE ON THE CLASH OF THE STILL UNSETTLED CLAIMS BETWEEN
EMPLOYERS AND LABOR UNIONS.  THE EXTENT TO WHICH THE VARIEGATED LAWS OF
THE SEVERAL STATES ARE DISPLACED BY A SINGLE, UNIFORM, NATIONAL RULE
HAS BEEN A MATTER OF FREQUENT AND RECURRING CONCERN.  AS WE POINTED OUT
THE OTHER DAY, "THE STATUTORY IMPLICATIONS CONCERNING WHAT HAS BEEN
TAKEN FROM THE STATES AND WHAT HAS BEEN LEFT TO THEM ARE OF A DELPHIC
NATURE, TO BE TRANSLATED INTO CONCRETENESS BY THE PROCESS OF LITIGATING
ELUCIDATION."  INTERNATIONAL ASSN. OF MACHINISTS V. GONZALES, 356 U.S.
617, 619. 

IN THE AREA OF REGULATION WITH WHICH WE ARE HERE CONCERNED, THE
PROCESS THUS DESCRIBED HAS CONTRACTED INITIAL AMBIGUITY AND DOUBT AND
ESTABLISHED GUIDES FOR JUDGMENT BY INTERESTED PARTIES AND CERTAINLY
GUIDES FOR DECISION.  WE STATE THESE PRINCIPLES IN FULL REALIZATION
THAT, IN THE COURSE OF A PROCESS OF TENTATIVE, FRAGMENTARY ILLUMINATION
CARRIED ON OVER MORE THAN A DECADE DURING WHICH THE WRITERS OF OPINIONS
ALMOST INEVITABLY, BECAUSE UNCONSCIOUSLY, FOCUS THEIR PRIMARY ATTENTION
ON THE FACTS OF PARTICULAR SITUATIONS, LANGUAGE MAY HAVE BEEN USED OR
VIEWS IMPLIED WHICH DO NOT COMPLETELY HARMONIZE WITH THE CLEAR PATTERN
WHICH THE DECISIONS HAVE EVOLVED.  BUT IT MAY SAFELY BE CLAIMED THAT
THE BASIS AND PURPORT OF A LONG SERIES OF ADJUDICATIONS HAVE
"TRANSLATED INTO CONCRETENESS" THE CONSISTENTLY APPLIED PRINCIPLES
WHICH DECIDE THIS CASE. 

IN DETERMINING THE EXTENT TO WHICH STATE REGULATION MUST YIELD TO
SUBORDINATING FEDERAL AUTHORITY, WE HAVE BEEN CONCERNED WITH DELIMITING
AREAS OF POTENTIAL CONFLICT; POTENTIAL CONFLICT OF RULES OF LAW, OF
REMEDY, AND OF ADMINISTRATION.  THE NATURE OF THE JUDICIAL PROCESS
PRECLUDES AN AD HOC INQUIRY INTO THE SPECIAL PROBLEMS OF LABOR
MANAGEMENT RELATIONS INVOLVED IN A PARTICULAR SET OF OCCURRENCES IN
ORDER TO ASCERTAIN THE PRECISE NATURE AND DEGREE OF FEDERAL-STATE
CONFLICT THERE INVOLVED, AND MORE PARTICULARLY WHAT EXACT MISCHIEF SUCH
A CONFLICT WOULD CAUSE.  NOR IS IT OUR BUSINESS TO ATTEMPT THIS.  SUCH
DETERMINATIONS INEVITABLY DEPEND UPON JUDGMENTS ON THE IMPACT OF THESE
PARTICULAR CONFLICTS ON THE ENTIRE SCHEME OF FEDERAL LABOR POLICY AND
ADMINISTRATION.  OUR TASK IS CONFINED TO DEALING WITH CLASSES OF
SITUATIONS.  TO THE NATIONAL LABOR RELATIONS BOARD AND TO CONGRESS MUST
BE LEFT THOSE PRECISE AND CLOSELY LIMITED DEMARCATIONS THAT CAN BE
ADEQUATELY FASHIONED ONLY BY LEGISLATION AND ADMINISTRATION.  WE HAVE
NECESSARILY BEEN CONCERNED WITH THE POTENTIAL CONFLICT OF TWO LAW
ENFORCING AUTHORITIES, WITH THE DISHARMONIES INHERENT IN TWO SYSTEMS,
ONE FEDERAL THE OTHER STATE, OF INCONSISTENT STANDARDS OF SUBSTANTIVE
LAW AND DIFFERING REMEDIAL SCHEMES.  BUT THE UNIFYING CONSIDERATION OF
OUR DECISIONS HAS BEEN REGARD TO THE FACT THAT CONGRESS HAS ENTRUSTED
ADMINSTRATION OF THE LABOR POLICY FOR THE NATION TO A CENTRALIZED
ADMINISTRATIVE AGENCY, ARMED WITH ITS OWN PROCEDURES, AND EQUIPPED WITH
ITS SPECIALIZED KNOWLEDGE AND CUMULATIVE EXPERIENCE: 

"CONGRESS DID NOT MERELY LAY DOWN A SUBSTANTIVE RULE OF LAW TO BE
ENFORCED BY ANY TRIBUNAL COMPETENT TO APPLY LAW GENERALLY TO THE
PARTIES.  IT WENT ON TO CONFIDE PRIMARY INTERPRETATION AND APPLICATION
OF ITS RULES TO A SPECIFIC AND SPECIALLY CONSTITUTED TRIBUNAL AND
PRESCRIBED A PARTICULAR PROCEDURE FOR INVESTIGATION, COMPLAINT AND
NOTICE, AND HEARING AND DECISION, INCLUDING JUDICIAL RELIEF PENDING A
FINAL ADMINISTRATIVE ORDER.  CONGRESS EVIDENTLY CONSIDERED THAT
CENTRALIZED ADMINISTRATION OF SPECIALLY DESIGNED PROCEDURES WAS
NECESSARY TO OBTAIN UNIFORM APPLICATION OF ITS SUBSTANTIVE RULES AND TO
AVOID THESE DIVERSITIES AND CONFLICTS LIKELY TO RESULT FROM A VARIETY
OF LOCAL PROCEDURES AND ATTITUDES TOWARDS LABOR CONTROVERSIES  ...  .
A MULTIPLICITY OF TRIBUNALS AND A DIVERSITY OF PROCEDURES ARE QUITE AS
APT TO PRODUCE INCOMPATIBLE OR CONFLICTING ADJUDICATIONS AS ARE
DIFFERENT RULES OF SUBSTANTIVE LAW  ...  ."  GARNER V. TEAMSTERS UNION,
346 U.S. 485, 490-491. 

ADMINISTRATION IS MORE THAN A MEANS OF REGULATION; ADMINISTRATION IS
REGULATION.  WE HAVE BEEN CONCERNED WITH CONFLICT IN ITS BROADEST
SENSE; CONFLICT WITH A COMPLEX AND INTERRELATED FEDERAL SCHEME OF LAW,
REMEDY, AND ADMINISTRATION.  THUS, JUDICIAL CONCERN HAS NECESSARILY
FOCUSED ON THE NATURE OF THE ACTIVITIES WHICH THE STATES HAVE SOUGHT TO
REGULATE, RATHER THAN ON THE METHOD OF REGULATION ADOPTED.  WHEN THE
EXERCISE OF STATE POWER OVER A PARTICULAR AREA OF ACTIVITY THREATENED
INTERFERENCE WITH THE CLEARLY INDICATED POLICY OF INDUSTRIAL RELATIONS,
IT HAS BEEN JUDICIALLY NECESSARY TO PRECLUDE THE STATES FROM ACTING. 
(FN1)  HOWEVER, DUE REGARD FOR THE PRESUPPOSITIONS OF OUR EMBRACING
FEDERAL SYSTEM, INCLUDING THE PRINCIPLE OF DIFFUSION OF POWER NOT AS A
MATTER OF DOCTRINAIRE LOCALISM BUT AS A PROMOTER OF DEMOCRACY, HAS
REQUIRED US NOT TO FIND WITHDRAWAL FROM THE STATES OF POWER TO REGULATE
WHERE THE ACTIVITY REGULATED WAS A MERELY PERIPHERAL CONCERN OF THE
LABOR MANAGEMENT RELATIONS ACT.  SEE INTERNATIONAL ASSN. OF MACHINISTS
V. GONZALES, 356 U.S. 617.  OR WHERE THE REGULATED CONDUCT TOUCHED
INTERESTS SO DEEPLY ROOTED IN LOCAL FEELING AND RESPONSIBILITY THAT, IN
THE ABSENCE OF COMPELLING CONGRESSIONAL DIRECTION, WE COULD NOT INFER
THAT CONGRESS HAD DEPRIVED THE STATES OF THE POWER TO ACT.  (FN2) 

WHEN IT IS CLEAR OR MAY FAIRLY BE ASSUMED THAT THE ACTIVITIES WHICH A
STATE PURPORTS TO REGULATE ARE PROTECTED BY SEC. 7 OF THE NATIONAL
LABOR RELATIONS ACT, OR CONSTITUTE AN UNFAIR LABOR PRACTICE UNDER SEC.
8, DUE REGARD FOR THE FEDERAL ENACTMENT REQUIRES THAT STATE
JURISDICTION MUST YIELD.  TO LEAVE THE STATES FREE TO REGULATE CONDUCT
SO PLAINLY WITHIN THE CENTRAL AIM OF FEDERAL REGULATION INVOLVES TOO
GREAT A DANGER OF CONFLICT BETWEEN POWER ASSERTED BY CONGRESS AND
REQUIREMENTS IMPOSED BY STATE LAW.  NOR HAS IT MATTERED WHETHER THE
STATES HAVE ACTED THROUGH LAWS OF BROAD GENERAL APPLICATION RATHER THAN
LAWS SPECIFICALLY DIRECTED TOWARDS THE GOVERNANCE OF INDUSTRIAL
RELATIONS.  (FN3)  REGARDLESS OF THE MODE ADOPTED, TO ALLOW THE STATES
TO CONTROL CONDUCT WHICH IS THE SUBJECT OF NATIONAL REGULATION WOULD
CREATE POTENTIAL FRUSTRATION OF NATIONAL PURPOSES.    AT TIMES IT HAS
NOT BEEN CLEAR WHETHER THE PARTICULAR ACTIVITY REGULATED BY THE STATES
WAS GOVERNED BY SEC. 7 OR SEC. 8 OR WAS, PERHAPS, OUTSIDE BOTH THESE
ISSUES.  IT IS ESSENTIAL TO THE ADMINISTRATION OF THE ACT THAT THESE
DETERMINATIONS BE LEFT IN THE FIRST INSTANCE TO THE NATIONAL LABOR
RELATIONS BOARD.  WHAT IS OUTSIDE THE SCOPE OF THIS COURT'S AUTHORITY
CANNOT REMAIN WITHIN A STATE'S POWER AND STATE JURISDICTION TOO MUST
YIELD TO THE EXCLUSIVE PRIMARY COMPETENCE OF THE BOARD.  SEE, E.G.,
GARNER V. TEAMSTERS UNION, 346 U.S. 485, ESPECIALLY AT 489-491; WEBER
V. ANHEUSER-BUSCH, INC., 348 U.S. 468. 

THE CASE BEFORE US IS SUCH A CASE.  THE ADJUDICATION IN CALIFORNIA
HAS THROUGHOUT BEEN BASED ON THE ASSUMPTION THAT THE BEHAVIOR OF THE
PETITIONING UNIONS CONSTITUTED AN UNFAIR LABOR PRACTICE.  THIS
CONCLUSION WAS DERIVED BY THE CALIFORNIA COURTS FROM THE FACTS AS WELL
AS FROM THEIR VIEW OF THE ACT.  IT IS NOT FOR US TO DECIDE WHETHER THE
NATIONAL LABOR RELATIONS BOARD WOULD HAVE, OR SHOULD HAVE, DECIDED
THESE QUESTIONS IN THE SAME MANNER.  WHEN AN ACTIVITY IS ARGUABLY
SUBJECT TO SEC. 7 OR SEC. 8 OF THE ACT, THE STATES AS WELL AS THE
FEDERAL COURTS MUST DEFER TO THE EXCLUSIVE COMPETENCE OF THE NATIONAL
LABOR RELATIONS BOARD IF THE DANGER OF STATE INTERFERENCE WITH NATIONAL
POLICY IS TO BE AVERTED. 

TO REQUIRE THE STATES TO YIELD TO THE PRIMARY JURISDICTION OF THE
NATIONAL BOARD DOES NOT ENSURE BOARD ADJUDICATION OF THE STATUS OF A
DISPUTED ACTIVITY.  IF THE BOARD DECIDES, SUBJECT TO APPROPRIATE
FEDERAL JUDICIAL REVIEW, THAT CONDUCT IS PROTECTED BY SEC. 7, OR
PROHIBITED BY SEC. 8, THEN THE MATTER IS AT AN END, AND THE STATES ARE
OUSTED OF ALL JURISDICTION.  OR, THE BOARD MAY DECIDE THAT AN ACTIVITY
IS NEITHER PROTECTED NOR PROHIBITED, AND THEREBY RAISE THE QUESTION
WHETHER SUCH ACTIVITY MAY BE REGULATED BY THE STATES.  (FN4)  HOWEVER,
THE BOARD MAY ALSO FAIL TO DETERMINE THE STATUS OF THE DISPUTED CONDUCT
BY DECLINING TO ASSERT JURISDICTION, OR BY REFUSAL OF THE GENERAL
COUNSEL TO FILE A CHARGE, OR BY ADOPTING SOME OTHER DISPOSITION WHICH
DOES NOT DEFINE THE NATURE OF THE ACTIVITY WITH UNCLOUDED LEGAL
SIGNIFICANCE.  THIS WAS THE BASIC PROBLEM UNDERLYING OUR DECISION IN
GUSS V. UTAH LABOR RELATIONS BOARD, 353 U.S. 1.  IN THAT CASE WE HELD
THAT THE FAILURE OF THE NATIONAL LABOR RELATIONS BOARD TO ASSUME
JURISDICTION DID NOT LEAVE THE STATES FREE TO REGULATE ACTIVITIES THEY
WOULD OTHERWISE BE PRECLUDED FROM REGULATING.  IT FOLLOWS THAT THE
FAILURE OF THE BOARD TO DEFINE THE LEGAL SIGNIFICANCE UNDER THE ACT OF
A PARTICULAR ACTIVITY DOES NOT GIVE THE STATES THE POWER TO ACT.  IN
THE ABSENCE OF THE BOARD'S CLEAR DETERMINATION THAT AN ACTIVITY IS
NEITHER PROTECTED NOR PROHIBITED OR OF COMPELLING PRECEDENT APPLIED TO
ESSENTIALLY UNDISPUTED FACTS, IT IS NOT FOR THIS COURT TO DECIDE
WHETHER SUCH ACTIVITIES ARE SUBJECT TO STATE JURISDICTION.  THE
WITHDRAWAL OF THIS NARROW AREA FROM POSSIBLE STATE ACTIVITY FOLLOWS
FROM OUR DECISIONS IN WEBER AND GUSS.  THE GOVERNING CONSIDERATION IS
THAT TO ALLOW THE STATES TO CONTROL ACTIVITIES THAT ARE POTENTIALLY
SUBJECT TO FEDERAL REGULATION INVOLVES TOO GREAT A DANGER OF CONFLICT
WITH NATIONAL LABOR POLICY.  (FN5) 

IN THE LIGHT OF THESE PRINCIPLES THE CASE BEFORE US IS CLEAR.  SINCE
THE NATIONAL LABOR RELATIONS BOARD HAS NOT ADJUDICATED THE STATUS OF
THE CONDUCT FOR WHICH THE STATE OF CALIFORNIA SEEKS TO GIVE A REMEDY IN
DAMAGES, AND SINCE SUCH ACTIVITY IS ARGUABLY WITHIN THE COMPASS OF SEC.
7 OR SEC. 8 OF THE ACT, THE STATE'S JURISDICTION IS DISPLACED. 

NOR IS IT SIGNIFICANT THAT CALIFORNIA ASSERTED ITS POWER TO GIVE
DAMAGES RATHER THAN TO ENJOIN WHAT THE BOARD MAY RESTRAIN THOUGH IT
COULD NOT COMPENSATE.  OUR CONCERN IS WITH DELIMITING AREAS OF CONDUCT
WHICH MUST BE FREE FROM STATE REGULATION IF NATIONAL POLICY IS TO BE
LEFT UNHAMPERED.  SUCH REGULATION CAN BE AS EFFECTIVELY EXERTED THROUGH
AN AWARD OF DAMAGES AS THROUGH SOME FORM OF PREVENTIVE RELIEF.  THE
OBLIGATION TO PAY COMPENSATION CAN BE, INDEED IS DESIGNED TO BE, A
POTENT METHOD OF GOVERNING CONDUCT AND CONTROLLING POLICY.  EVEN THE
STATES' SALUTARY EFFORT TO REDRESS PRIVATE WRONGS OR GRANT COMPENSATION
FOR PAST HARM CANNOT BE EXERTED TO REGULATE ACTIVITIES THAT ARE
POTENTIALLY SUBJECT TO THE EXCLUSIVE FEDERAL REGULATORY SCHEME.  SEE
GARNER V. TEAMSTERS UNION, 346 U.S. 485, 492-497.  IT MAY BE THAT AN
AWARD OF DAMAGES IN A PARTICULAR SITUATION WILL NOT, IN FACT, CONFLICT
WITH THE ACTIVE ASSERTION OF FEDERAL AUTHORITY.  THE SAME MAY BE TRUE
OF THE INCIDENCE OF A PARTICULAR STATE INJUNCTION.  TO SANCTION EITHER
INVOLVES A CONFLICT WITH FEDERAL POLICY IN THAT IT INVOLVES ALLOWING
TWO LAW-MAKING SOURCES TO GOVERN.  IN FACT, SINCE REMEDIES FORM AN
INGREDIENT OF ANY INTEGRATED SCHEME OF REGULATION, TO ALLOW THE STATE
TO GRANT A REMEDY HERE WHICH HAS BEEN WITHHELD FROM THE NATIONAL LABOR
RELATIONS BOARD ONLY ACCENTUATES THE DANGER OF CONFLICT. 

IT IS TRUE THAT WE HAVE ALLOWED THE STATES TO GRANT COMPENSATION FOR
THE CONSEQUENCES, AS DEFINED BY THE TRADITIONAL LAW OF TORTS, OF
CONDUCT MARKED BY VIOLENCE AND IMMINENT THREATS TO THE PUBLIC ORDER. 
UNITED AUTOMOBILE WORKERS V. RUSSELL, 356 U.S. 634; UNITED CONSTRUCTION
WORKERS V. LABURNUM CORP., 347 U.S. 656.  WE HAVE ALSO ALLOWED THE
STATES TO ENJOIN SUCH CONDUCT.  YOUNGDAHL V. RAINFAIR, 355 U.S. 131;
AUTO WORKERS V. WISCONSIN BOARD, 351 U.S. 266.  STATE JURISDICTION HAS
PREVAILED IN THESE SITUATIONS BECAUSE THE COMPELLING STATE INTEREST, IN
THE SCHEME OF OUR FEDERALISM, IN THE MAINTENANCE OF DOMESTIC PEACE IS
NOT OVERRIDDEN IN THE ABSENCE OF CLEARLY EXPRESSED CONGRESSIONAL
DIRECTION.  WE RECOGNIZE THAT THE OPINION IN UNITED CONSTRUCTION
WORKERS V. LABURNUM CORP., 347 U.S. 656, FOUND SUPPORT IN THE FACT THAT
THE STATE REMEDY HAD NO FEDERAL COUNTERPART.  BUT THAT DECISION WAS
DETERMINED, AS IT DEMONSTRATED BY THE QUESTION TO WHICH REVIEW WAS
RESTRICTED, BY THE "TYPE OF CONDUCT" INVOLVED, I.E., "INTIMIDATION AND
THREATS OF VIOLENCE."  (FN6)  IN THE PRESENT CASE THERE IS NO SUCH
COMPELLING STATE INTEREST. 

THE JUDGMENT BELOW IS REVERSED. 

FN1  E.G., GUSS V. UTAH LABOR RELATIONS BOARD, 353 U.S. 1; YOUNGDAHL
V. RAINFAIR, 355 U.S. 131; TEAMSTERS UNION V. NEW YORK, N.H.&H.R. CO.,
350 U.S. 155; WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468; GARNER V.
TEAMSTERS UNION, 346 U.S. 485; AUTOMOBILE WORKERS V. O'BRIEN, 339 U.S.
454; AMALGAMATED ASSN. OF STREET, ELECTRIC R. & MOTOR COACH EMPLOYEES
V. WISCONSIN BOARD, 340 U.S. 383; HILL V. FLORIDA, 325 U.S. 538.  SEE
TEAMSTERS UNION V. OLIVER, 358 U.S. 283.  THE CASES UP TO THAT TIME ARE
SUMMARIZED IN WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468. 

FN2  UNITED AUTOMOBILE WORKERS V. RUSSELL, 356 U.S. 634; YOUNGDAHL V.
RAINFAIR, 355 U.S. 131; AUTO WORKERS V. WISCONSIN BOARD, 351 U.S. 266;
UNITED CONSTRUCTION WORKERS V. LABURNUM CORP., 347 U.S. 656. 

FN3  SEE WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, IN WHICH IT WAS
POINTED OUT THAT THE STATE COURT HAD RELIED ON A GENERAL RESTRAINT OF
TRADE STATUTE.  CF. AUTO WORKERS V. WISCONSIN BOARD, 351 U.S. 266.  THE
CASE BEFORE US INVOLVES BOTH TORT LAW OF GENERAL APPLICATION AND
SPECIALIZED LABOR RELATIONS STATUTES.  SEE P. 239, SUPRA. 

FN4  SEE AUTO WORKERS V. WISCONSIN BOARD, 336 U.S. 245.  THE APPROACH
TAKEN IN THAT CASE, IN WHICH THE COURT UNDERTOOK FOR ITSELF TO
DETERMINE THE STATUS OF THE DISPUTED ACTIVITY, HAS NOT BEEN FOLLOWED IN
LATER DECISIONS, AND IS NO LONGER OF GENERAL APPLICATION. 

FN5  "WHEN CONGRESS HAS TAKEN THE PARTICULAR SUBJECT-MATTER IN HAND
COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION  ...  ."  CHARLESTON &
WEST.  CAROLINA R. CO. V. VARNVILLE FURNITURE CO., 237 U.S. 597, 604. 

FN6  THE CONDUCT INVOLVED IN LABURNUM WAS SO CHARACTERIZED IN UNITED
AUTOMOBILE WORKERS V. RUSSELL, 356 U.S. 634, 640, IN AN OPINION BY MR.
JUSTICE BURTON, WHO ALSO WROTE THE OPINION OF THE COURT IN LABURNUM. 
WHEN THIS VERY CASE WAS BEFORE US FOR THE FIRST TIME WE NOTED THAT
"LABURNUM SUSTAINED AN AWARD OF DAMAGES UNDER STATE TORT LAW FOR
VIOLENT CONDUCT.  WE CANNOT KNOW THAT THE CALIFORNIA COURT WOULD HAVE
INTERPRETED ITS OWN STATE LAW TO ALLOW AN AWARD OF DAMAGES IN THIS
SITUATION."  353 U.S., AT 29. 

IN LABURNUM THIS COURT ITSELF EXPRESSLY PHRASED ITS GRANT OF
CERTIORARI TO INCLUDE ONLY THE LIMITED QUESTION OF THE STATE'S
JURISDICTION TO AWARD DAMAGES "IN VIEW OF THE TYPE OF CONDUCT FOUND BY
THE SUPREME COURT OF APPEALS OF VIRGINIA TO HAVE BEEN CARRIED OUT BY
PETITIONERS  ...  ," 346 U.S. 936, DESPITE THE FACT THAT PETITIONERS
HAD URGED UPON US A QUESTION NOT LIMITED TO THE PARTICULAR CONDUCT
INVOLVED.  PETITION FOR CERTIORARI, P. 6. 

THROUGHOUT, THE OPINION OF THE COURT MAKES IT CLEAR THAT THE HOLDING
IN FAVOR OF STATE JURISDICTION WAS LIMITED TO A SITUATION INVOLVING
VIOLENCE AND THREATS OF VIOLENCE.  THUS THE FINDINGS OF THE VIRGINIA
COURT AS TO THE FLAGRANT AND VIOLENT ACTIVITIES OF PETITIONERS WERE SET
OUT AT LENGTH.  347 U.S., AT 660-662, N. 4.  THE COURT RELIES ON
STATEMENTS BY SENATOR TAFT, THE ACT'S SPONSOR, AND FROM A SENATE REPORT
WHICH POINT OUT THAT "MASS PICKETING," "VIOLENCE," "THREATS OF
VIOLENCE," MAY BE A VIOLATION OF STATE LAW, AS WELL AS UNFAIR LABOR
PRACTICES UNDER THE ACT.  347 U.S., AT 668. 

THE COURT IN LABURNUM POINTS OUT THAT IT WOULD BE INCONSISTENT WITH
THE PROVISIONS OF THE ACT WHICH ALLOW RECOVERY FOR DAMAGES CAUSED BY
SECONDARY BOYCOTTS, NOT TO ALLOW AN INJURED PARTY "TO RECOVER DAMAGES
CAUSED MORE DIRECTLY AND FLAGRANTLY THROUGH SUCH CONDUCT AS IS BEFORE
US."  347 U.S. 666.  THE COURT ALSO PLACED RELIANCE ON A QUOTATION FROM
INTERNATIONAL UNION V. WISCONSIN BOARD, 336 U.S. 245, 253, WHICH POINTS
OUT THAT THE "POLICING OF  ...  CONDUCT  ...  ," WHICH CONSISTS OF
"ACTUAL OR THREATENED VIOLENCE TO PERSONS OR DESTRUCTION OF PROPERTY,"
IS LEFT TO THE STATES.  IN ITS CONCLUDING PARAGRAPH THE COURT AGAIN
STRESSES THAT VIRGINIA HAS JURISDICTION OVER "COERCION OF THE TYPE
FOUND HERE  ...  ." 

THE DAMAGES AWARDED WERE EXTENSIVE, CONSISTING PRIMARILY OF LOSS OF
PROFITS CAUSED BY THE DISRUPTION OF RESPONDENTS' BUSINESS RESULTING
FROM THE VIOLENCE.  THESE DAMAGES WERE RESTRICTED TO THE "DAMAGES
DIRECTLY AND PROXIMATELY CAUSED BY WRONGFUL CONDUCT CHARGEABLE TO THE
DEFENDANTS  ... " AS DEFINED BY THE TRADITIONAL LAW OF TORTS.  UNITED
CONSTRUCTION WORKERS V. LABURNUM CORP., 194 VA. 872, 887, 75 S.E.2D
694, 704.  THUS THERE IS NOTHING IN THE MEASURE OF DAMAGES TO INDICATE
THAT STATE POWER WAS EXERTED TO COMPENSATE FOR ANYTHING MORE THAN THE
DIRECT CONSEQUENCES OF THE VIOLENT CONDUCT. 

ALL THESE FACTORS MAKE IT PLAIN THAT OUR DECISION IN LABURNUM RESTED
ON THE NATURE OF THE ACTIVITIES THERE INVOLVED, AND THE INTEREST OF THE
STATE IN REGULATING THEM.  THE CASE HAS BEEN SO INTERPRETED IN LATER
DECISIONS OF THIS COURT.  SEE WEBER V. ANHEUSER-BUSCH, 348 U.S. 468,
477; AND THE PHRASES QUOTED FROM RUSSELL, SUPRA.  IN RUSSELL WE AGAIN
ALLOWED THE STATE TO AWARD DAMAGES FOR INJURIES CAUSED BY "MASS
PICKETING AND THREATS OF VIOLENCE  ...  ,"  356 U.S., AT 638.  THAT
OPINION ALSO CONTINUALLY STRESSES THE VIOLENT NATURE OF THE CONDUCT AND
LIMITS ITS DECISION TO THE "KIND OF TORTIOUS CONDUCT" THERE INVOLVED. 
356 U.S., AT 646.  SEE ALSO 356 U.S., AT 642; AND 356 U.S., AT 640,
WHERE THE COURT POINTS OUT THAT ALABAMA COULD HAVE ENJOINED THE
ACTIVITIES OF THE UNION. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK, MR. JUSTICE WHITTAKER AND
MR. JUSTICE STEWART JOIN, CONCURRING. 

I CONCUR IN THE RESULT UPON THE NARROW GROUND THAT THE UNIONS'
ACTIVITIES FOR WHICH THE STATE HAS AWARDED DAMAGES MAY FAIRLY BE
CONSIDERED PROTECTED UNDER THE TAFT-HARTLEY ACT, AND THAT THEREFORE
STATE ACTION IS PRECLUDED UNTIL THE NATIONAL LABOR RELATIONS BOARD HAS
MADE A CONTRARY DETERMINATION RESPECTING SUCH ACTIVITIES.  AS THE COURT
POINTS OUT, IT MAKES NO DIFFERENCE THAT THE BOARD HAS DECLINED TO
EXERCISE ITS JURISDICTION.  SEE GUSS V. UTAH LABOR RELATIONS BOARD, 353
U.S. 1; MEAT CUTTERS V. FAIRLAWN MEATS, INC., 353 U.S. 20; AND OUR
EARLIER OPINION IN THE PRESENT CASE WHEN IT WAS FIRST BEFORE US, 353
U.S. 26. 

WERE NOTHING MORE THAN THIS PARTICULAR CASE INVOLVED, I WOULD BE
CONTENT TO REST MY CONCURRENCE AT THIS POINT WITHOUT MORE.  BUT AS
TODAY'S DECISION WILL STAND AS A LANDMARK IN FUTURE "PRE-EMPTION" CASES
IN THE LABOR FIELD, I FEEL JUSTIFIED IN PARTICULARIZING WHY I CANNOT
JOIN THE COURT'S OPINION. 

IF IT WERE CLEAR THAT THE UNIONS' CONDUCT HERE WAS UNPROTECTED
ACTIVITY UNDER TAFT-HARTLEY, I THINK THAT UNITED CONSTR.  WORKERS V.
LABURNUM CONSTR.  CORP., 347 U.S. 656, AND AUTOMOBILE WORKERS V.
RUSSELL, 356 U.S. 634, WOULD REQUIRE THAT THE CALIFORNIA JUDGMENT BE
SUSTAINED, EVEN THOUGH SUCH CONDUCT MIGHT BE DEEMED TO BE FEDERALLY
PROHIBITED.  IN BOTH THESE CASES STATE TORT DAMAGE JUDGMENTS AGAINST
UNIONS WERE UPHELD IN RESPECT OF CONDUCT WHICH THIS COURT ASSUMED WAS
PROHIBITED ACTIVITY UNDER THE FEDERAL LABOR ACT.  THE COURT NOW SAYS,
HOWEVER, THAT THOSE DECISIONS ARE NOT APPLICABLE HERE BECAUSE THEY WERE
PREMISED ON VIOLENCE, WHICH THE STATES COULD ALSO HAVE ENJOINED,
AUTOMOBILE WORKERS V. WISCONSIN BOARD, 351 U.S. 266, WHEREAS IN THIS
CASE THE UNIONS' ACTS WERE PEACEFUL.  IN THIS I THINK THE COURT
MISTAKEN.    THE THRESHOLD QUESTION IN EVERY LABOR PRE-EMPTION CASE IS
WHETHER THE CONDUCT WITH RESPECT TO WHICH A STATE HAS SOUGHT TO ACT IS,
OR MAY FAIRLY BE REGARDED AS, FEDERALLY PROTECTED ACTIVITY.  BECAUSE
CONFLICT IS THE TOUCHSTONE OF PRE-EMPTION, SUCH ACTIVITY IS OBVIOUSLY
BEYOND THE REACH OF ALL STATE POWER.  HILL V. FLORIDA, 325 U.S. 538;
AUTOMOBILE WORKERS V. O'BRIEN, 339 U.S. 454; MOTOR COACH EMPLOYEES V.
WISCONSIN BOARD, 340 U.S. 383.  THAT THRESHOLD QUESTION WAS SQUARELY
FACED IN THE RUSSELL CASE, WHERE THE COURT, AT PAGE 640, SAID:  "AT THE
OUTSET, WE NOTE THAT THE UNION'S ACTIVITY IN THIS CASE CLEARLY WAS NOT
PROTECTED BY FEDERAL LAW."  THE SAME QUESTION WAS, IN MY VIEW,
NECESSARILY FACED IN LABURNUM. 

IN BOTH CASES IT WAS POSSIBLE TO DECIDE THAT QUESTION WITHOUT PRIOR
REFERENCE TO THE NATIONAL LABOR RELATIONS BOARD BECAUSE THE UNION
CONDUCT INVOLVED WAS VIOLENT, AND AS SUCH WAS OF COURSE NOT PROTECTED
BY THE FEDERAL ACT.  THUS IN LABURNUM, THE PRE-EMPTION ISSUE WAS
LIMITED TO THE "TYPE OF CONDUCT" BEFORE THE COURT.  347 U.S. AT 658. 
SIMILARLY IN RUSSELL, WHICH WAS DECIDED ON LABURNUM PRINCIPLES, THE
COURT STATED THAT THE UNION'S ACTIVITY "CLEARLY WAS NOT PROTECTED," AND
IMMEDIATELY WENT ON TO SAY (CITING PRIOR "VIOLENCE" CASES) (FN1) THAT
"THE STRIKE WAS CONDUCTED IN SUCH A MANNER THAT IT COULD HAVE BEEN
ENJOINED" BY THE STATE.  356 U.S., AT 640.  IN BOTH INSTANCES THE
COURT, IN RELIANCE ON FORMER "VIOLENCE" CASES INVOLVING INJUNCTIONS,
(FN2) MIGHT HAVE GONE ON TO HOLD, AS THE COURT NOW IN EFFECT SAYS IT
DID, THAT THE STATE POLICE POWER WAS NOT DISPLACED BY THE FEDERAL ACT,
AND THUS DISPOSED OF THE CASES ON THE GROUND THAT STATE DAMAGE AWARDS,
LIKE STATE INJUNCTIONS, BASED ON VIOLENT CONDUCT DID NOT CONFLICT WITH
THE FEDERAL STATUTE.  THE COURT DID NOT DO THIS, HOWEVER, 

INSTEAD THE RELEVANCE OF VIOLENCE WAS MANIFESTLY DEEMED CONFINED TO
RENDERING THE LABURNUM AND RUSSELL ACTIVITIES FEDERALLY UNPROTECTED. 
SO RENDERED, THEY COULD THEN ONLY HAVE BEEN CLASSIFIED AS PROHIBITED OR
"NEITHER PROTECTED NOR PROHIBITED."  IF THE LATTER, STATE JURISDICTION
WAS BEYOND CHALLENGE.  AUTOMOBILE WORKERS V. WISCONSIN BOARD, 336 U.S.
245.  (FN3)  CONVERSELY, IF THE ACTIVITIES COULD HAVE BEEN CONSIDERED
PROHIBITED, PRIMARY DECISION BY THE BOARD WOULD HAVE BEEN NECESSARY, IF
STATE DAMAGE AWARDS WERE INCONSISTENT WITH FEDERAL PROHIBITIONS. 
GARNER V. TEAMSTERS UNION, 346 U.S. 485.  TO DETERMINE THE NEED FOR
INITIAL REFERENCE TO THE BOARD, THE COURT ASSUMED THAT THE ACTIVITIES
WERE UNFAIR LABOR PRACTICES PROHIBITED BY THE FEDERAL ACT.  LABURNUM,
SUPRA, AT 660-663; RUSSELL, SUPRA, AT 641.  IT THEN CONSIDERED THE
POSSIBILITY OF CONFLICT AND HELD THAT THE STATE DAMAGE REMEDIES WERE
NOT PRE-EMPTED BECAUSE THE FEDERAL ACT AFFORDED NO REMEDY AT ALL FOR
THE PAST CONDUCT INVOLVED IN LABURNUM, AND LESS THAN FULL REDRESS FOR
THAT INVOLVED IN RUSSELL.  THE ESSENCE OF THE COURT'S HOLDING, WHICH
MADE RESORT TO PRIMARY JURISDICTION UNNECESSARY, IS CONTAINED IN THE
FOLLOWING PASSAGE FROM THE OPINION IN LABURNUM, SUPRA, AT 665 (ALSO
QUOTED IN RUSSELL, SUPRA, AT 644): 

"TO THE EXTENT THAT CONGRESS PRESCRIBED PREVENTIVE PROCEDURE AGAINST
UNFAIR LABOR PRACTICES, THAT CASE (GARNER V. TEAMSTERS UNION, SUPRA,)
RECOGNIZED THAT THE ACT EXCLUDED CONFLICTING STATE PROCEDURE TO THE
SAME END.  TO THE EXTENT, HOWEVER, THAT CONGRESS HAS NOT PRESCRIBED
PROCEDURE FOR DEALING WITH THE CONSEQUENCES OF TORTIOUS CONDUCT ALREADY
COMMITTED, THERE IS NO GROUND FOR CONCLUDING THAT EXISTING CRIMINAL
PENALTIES OR LIABILITIES FOR TORTIOUS CONDUCT HAVE BEEN ELIMINATED. 
THE CARE WE TOOK IN THE GARNER CASE TO DEMONSTRATE THE EXISTING
CONFLICT BETWEEN STATE AND FEDERAL ADMINISTRATIVE REMEDIES IN THAT CASE
WAS, ITSELF, A RECOGNITION THAT IF NO CONFLICT HAD EXISTED, THE STATE
PROCEDURE WOULD HAVE SURVIVED." 

UNTIL TODAY THIS HOLDING OF LABURNUM HAS BEEN RECOGNIZED BY
SUBSEQUENT CASES.  SEE WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468,
477; AUTOMOBILE WORKERS V. RUSSELL, SUPRA, AT 640, 641, 644;
INTERNATIONAL ASSN. OF MACHINISTS V. GONZALES, 356 U.S. 617, 621,
SIMILARLY CHARACTERIZING RUSSELL; SEE ALSO THE DISSENTING OPINION IN
GONZALES, ESPECIALLY AT 624-626.  (FN4) 

THE COURT'S OPINION IN THIS CASE CUTS DEEPLY INTO THE ABILITY OF
STATES TO FURNISH AN EFFECTIVE REMEDY UNDER THEIR OWN LAWS FOR THE
REDRESS OF PAST NONVIOLENT TORTIOUS CONDUCT WHICH IS NOT FEDERALLY
PROTECTED, BUT WHICH MAY BE DEEMED TO BE, OR IS, FEDERALLY PROHIBITED. 
HENCEFORTH THE STATES MUST WITHHOLD ACCESS TO THEIR COURTS UNTIL THE
NATIONAL LABOR RELATIONS BOARD HAS DETERMINED THAT SUCH UNPROTECTED
CONDUCT IS NOT AN UNFAIR LABOR PRACTICE, OF COURSE WHICH, BECAUSE OF
UNAVOIDABLE BOARD DELAYS, MAY RENDER STATE REDRESS INEFFECTIVE.  AND IN
INSTANCES IN WHICH THE BOARD DECLINES TO EXERCISE ITS JURISDICTION, THE
STATES ARE ENTIRELY DEPRIVED OF POWER TO AFFORD ANY RELIEF.  MOREOVER,
SINCE THE REPARATION POWERS OF THE BOARD, AS WE OBSERVED IN RUSSELL,
ARE NARROWLY CIRCUMSCRIBED, THOSE INJURED BY NONVIOLENT CONDUCT WILL
OFTEN GO REMEDILESS EVEN WHEN THE BOARD DOES ACCEPT JURISDICTION. 

I AM, FURTHER, AT LOSS TO UNDERSTAND, AND CAN FIND NO BASIS ON
PRINCIPLE OR IN PAST DECISIONS FOR, THE COURT'S INTIMATION THAT THE
STATES MAY EVEN BE POWERLESS TO ACT WHEN THE UNDERLYING ACTIVITIES ARE
CLEARLY "NEITHER PROTECTED NOR PROHIBITED" BY THE FEDERAL ACT.  SURELY
THAT SUGGESTION IS FORECLOSED BY AUTOMOBILE WORKERS V. WISCONSIN BOARD,
336 U.S., SUPRA, (FN5) AS WELL AS BY THE APPROACH TAKEN TO FEDERAL PRE
EMPTION IN SUCH CASES AS ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, SUPRA,
BETHLEHEM STEEL CO. V. NEW YORK BOARD, 330 U.S. 767, 773, AND ALGOMA
PLYWOOD CO. V. WISCONSIN BOARD, 336 U.S. 301, NOT TO MENTION LABURNUM
AND RUSSELL AND THE PRIMARY JURISDICTION DOCTRINE ITSELF.  (FN6)
SHOULD WHAT THE COURT NOW INTIMATES EVER COME TO PASS, THEN INDEED
STATE POWER TO REDRESS WRONGFUL ACTS IN THE LABOR FIELD WILL BE REDUCED
TO THE VANISHING POINT. 

IN DETERMINING PRE-EMPTION IN ANY GIVEN LABOR CASE, I WOULD ADHERE TO
THE LABURNUM AND RUSSELL DISTINCTION BETWEEN DAMAGES AND INJUNCTIONS
AND TO THE PRINCIPLE THAT STATE POWER IS NOT PRECLUDED WHERE THE
CHALLENGED CONDUCT IS NEITHER PROTECTED NOR PROHIBITED UNDER THE
FEDERAL ACT.  SOLELY BECAUSE IT IS FAIRLY DEBATABLE WHETHER THE CONDUCT
HERE INVOLVED IS FEDERALLY PROTECTED, I CONCUR IN THE RESULT OF TODAY'S
DECISION. 

FN1  YOUNGDAHL V. RAINFAIR, INC., 355 U.S. 131; AUTOMOBILE WORKERS V.
WISCONSIN BOARD, 351 U.S. 266. 

FN2  SEE ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740; CASES
CITED AT NOTE 1, SUPRA. 

FN3  SEE TEXT AT PP. 253-254, INFRA. 

FN4  THE SAME VIEW IS TAKEN OF LABURNUM AND RUSSELL IN THE AMICI
BRIEFS FILED IN THE PRESENT CASE BY THE GOVERNMENT AND THE AMERICAN
FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, THE
LATTER STATING THAT "WE HOPE TO ARGUE IN AN APPROPRIATE CASE THAT THE
RUSSELL DECISION SHOULD BE OVERRULED." 

FN5  THE COURT MAY BE CORRECT IN STATING THAT "THE APPROACH TAKEN IN
THAT CASE, IN WHICH THE COURT UNDERTOOK FOR ITSELF TO DETERMINE THE
STATUS OF THE DISPUTED ACTIVITY, HAS NOT BEEN FOLLOWED IN LATER
DECISIONS, AND IS NO LONGER OF GENERAL APPLICATION."  THAT, HOWEVER,
HAS NOTHING TO DO WITH THE VITALITY OF THE HOLDING THAT THERE IS NO PRE
EMPTION WHEN THE CONDUCT CHARGED IS IN FACT NEITHER PROTECTED NOR
PROHIBITED.  TO THE CONTRARY, THAT HOLDING HAS REMAINED FULLY INTACT,
AND, AS ALREADY NOTED, UNDERLAY THE DECISIONS IN LABURNUM AND RUSSELL. 

FN6 IF THE "NEITHER PROTECTED NOR PROHIBITED" CATEGORY WERE ONE OF
PRE-EMPTION, THERE WOULD BE NO POINT IN REFERRING ANY INJUNCTION CASE
INITIALLY TO THE BOARD SINCE THE PRE-EMPTION ISSUE WOULD BE PLAIN
HOWEVER THE CHALLENGED ACTIVITIES MIGHT BE CLASSIFIED FEDERALLY.  THE
SAME IS TRUE OF DAMAGE CASES UNDER THE COURT'S PREMISE OF CONFLICT. 
STATE POWER WOULD THUS BE CONFINED TO ACTIVITIES WHICH WERE VIOLENT OR
OF MERELY PERIPHERAL FEDERAL CONCERN, SEE INTERNATIONAL ASSN. OF
MACHINISTS V. GONZALES, 356 U.S. 617. 
..END :









UNITED STATES V. SHIREY 359 U.S. 255 


NO. 72.  ARGUED JANUARY 19, 1959 - DECIDED APRIL 20, 1959 - 168 F. SUPP.
382, REVERSED. 


ALLEGING THAT HE HAD OFFERED TO A CONGRESSMAN TO DONATE $1,000 A YEAR
TO THE REPUBLICAN PARTY IF THE CONGRESSMAN WOULD USE HIS INFLUENCE TO
PROCURE FOR HIM A CERTAIN POSTMASTERSHIP, AN INFORMATION WAS FILED IN A
FEDERAL DISTRICT COURT CHARGING APPELLEE WITH A VIOLATION OF 18 U.S.C.
SEC. 214, WHICH PROVIDES THAT, "WHOEVER  ...  OFFERS OR PROMISES ANY
MONEY OR THING OF VALUE, TO ANY PERSON, FIRM OR CORPORATION IN
CONSIDERATION OF THE USE OR PROMISE TO USE ANY INFLUENCE TO PROCURE ANY
APPOINTIVE OFFICE OR PLACE UNDER THE UNITED STATES FOR ANY PERSON"
SHALL BE FINED OR IMPRISONED OR BOTH.  HELD:  THE INFORMATION STATES
FACTS SUFFICIENT TO CONSTITUTE AN OFFENSE UNDER THE STATUTE, SINCE THE
WORD "PERSON" IS BROAD ENOUGH TO INCLUDE THE REPUBLICAN PARTY AND THE
LEGISLATIVE HISTORY OF THE STATUTE SHOWS THAT IT WAS INTENDED TO COVER
CASES SUCH AS THAT ALLEGED.  PP. 255-262. 

UNITED STATES V. SHIREY. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF PENNSYLVANIA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON JULY 23, 1954, AN INFORMATION WAS FILED IN THE DISTRICT COURT FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA CHARGING APPELLEE WITH A VIOLATION
OF 18 U.S.C. SEC. 214 (ORIGINALLY SEC.  1 OF THE ACT OF DECEMBER 11,
1926, 44 STAT. 918).  THAT STATUTE PROVIDES: 

"WHOEVER PAYS OR OFFERS OR PROMISES ANY MONEY OR THING OF VALUE, TO
ANY PERSON, FIRM, OR CORPORATION IN CONSIDERATION OF THE USE OR PROMISE
TO USE ANY INFLUENCE TO PROCURE ANY APPOINTIVE OFFICE OR PLACE UNDER
THE UNITED STATES FOR ANY PERSON, SHALL BE FINED NOT MORE THAN $1,000
OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 

THE INFORMATION ALLEGED THAT APPELLEE HAD OFFERED S. WALTER STAUFFER,
A MEMBER OF CONGRESS FROM PENNSYLVANIA, TO CONTRIBUTE $1,000 A YEAR TO
THE REPUBLICAN PARTY IN CONSIDERATION OF STAUFFER'S USE OF INFLUENCE TO
PROCURE FOR APPELLEE THE POSTMASTERSHIP OF YORK, PENNSYLVANIA.  THE
DISTRICT COURT GRANTED A MOTION TO DISMISS FOR FAILURE TO STATE FACTS
SUFFICIENT TO CONSTITUTE AN OFFENSE AGAINST THE UNITED STATES.  168
F.SUPP.  382.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT, 18
U.S.C. SEC. 3731, AND WE NOTED PROBABLE JURISDICTION, 358 U.S. 806, TO
DETERMINE WHETHER THE ALLEGATIONS OF THE INFORMATION CONSTITUTED A
VIOLATION OF 18 U.S.C. SEC. 214.  (FN1) 

WE TURN FIRST TO THE LANGUAGE OF THE STATUTE.  THERE ARE ALTERNATIVE
CONSTRUCTIONS OF ITS LANGUAGE.  ONE SENSIBLE READING IS TO SAY THAT
EVEN THOUGH THE REPUBLICAN PARTY WAS TO BE THE ULTIMATE RECIPIENT OF
THE MONEY, THIS WAS A PROMISE TO STAUFFER OF MONEY (WHICH IT PLAINLY
WAS) IN CONSIDERATION OF HIS USE OF INFLUENCE.  SINCE STAUFFER IS A
"PERSON," THE STATUTE COVERS THE ALLEGED OFFENSE.  IT MAY BE URGED THAT
ALTHOUGH A PROMISE WAS MADE TO STAUFFER IT WAS NOT A PROMISE OF MONEY
TO HIM.  SINCE THE WORD "TO" IMMEDIATELY FOLLOWS THE WORDS "MONEY OR
THING OF VALUE" AND NOT THE WORD "PROMISES," IT IS POSSIBLE TO READ THE
STATUTE AS REQUIRING THAT THE RECIPIENT OF THE MONEY OR THING OF VALUE
BE THE "PERSON, FIRM, OR CORPORATION" WHICH THE STATUTE DESCRIBES.  BUT
EITHER CONSTRUCTION OF THE STATUTE COVERS THE CLASSIC THREE-PARTY CASE:
E.G., A TELLS X HE WILL GIVE $1,000 TO Y IF X WILL USE INFLUENCE TO
GET HIM A JOB.  UNDER THE FIRST CONSTRUCTION THIS IS A PROMISE OF
$1,000 TO X IN CONSIDERATION OF THE USE OF INFLUENCE.  UNDER THE SECOND
CONSTRUCTION THIS IS A PROMISE TO GIVE MONEY TO Y IN CONSIDERATION OF A
PROMISE TO USE INFLUENCE; A STANDARD THIRD-PARTY BENEFICIARY
SITUATION.  THE ONLY DIFFICULTY WITH THIS SECOND CONSTRUCTION IN THE
CONTEXT OF THIS CASE IS THE NECESSITY OF FINDING THAT THE REPUBLICAN
PARTY IS A "PERSON, FIRM, OR CORPORATION," AS THOSE WORDS ARE USED IN
THE STATUTE.  THE REPUBLICAN PARTY IS NOT A LEGAL ENTITY.  IT IS AN
AMORPHOUS GROUP OF INDIVIDUALS THAT ACTS AND ONLY CAN ACT THROUGH
PERSONS.  CERTAINLY THE WORD "PERSON" IN THE STATUTE IS BROAD ENOUGH TO
INCLUDE THE REPUBLICAN PARTY, AND SINCE THE CONTENT AND MANIFEST
PURPOSE OF THE STATUTE CONFIRM, AS WE SHALL SEE, SUCH A CONSTRUCTION,
IT WOULD UNJUSTIFIABLY CONTRACT THE LAW TO WITHDRAW GIFTS TO THE
REPUBLICAN PARTY FROM ITS SCOPE.  (FN2) THUS, NO MATTER HOW THE STATUTE
IS READ, ONE THING IS CLEAR - ITS TERMS COVER THIS CASE.  SHIREY'S
ENDEAVOR TO PURCHASE HIMSELF A POSTMASTERSHIP AS ALLEGED HAS BEEN
INTERDICTED BY THE CONGRESS.  AWKWARDNESS IS NOT AMBIGUITY, NOR DO
DEFINED MULTIPLE MEANINGS, EACH OF WHICH IS SATISFIED BY THE
ALLEGATIONS OF THE INFORMATION, CONSTITUTE A WANT OF DEFINITENESS. 

NOT ONLY DOES THE COMPULSION OF LANGUAGE WITHIN THE STATUTORY
FRAMEWORK SEEM CLEAR, BUT THE PURPOSE AND HISTORY OF THE ENACTMENT
POWERFULLY REAFFIRM THE MEANING YIELDED BY ITS LANGUAGE.  THE BILL WAS
FIRST INTRODUCED IN CONGRESS WITH A COMMITTEE REPORT WHICH STATED: 

"THIS BILL SEEKS TO PUNISH THE PURCHASE AND SALE OF PUBLIC OFFICES. 
CERTAIN MEMBERS OF CONGRESS HAVE BROUGHT TO THE ATTENTION OF THE HOUSE
BOTH BY SPEECHES ON THE FLOOR AND STATEMENTS BEFORE THE JUDICIARY
COMMITTEE A GRAVE SITUATION, DISCLOSING CORRUPTION IN CONNECTION WITH
POSTAL APPOINTMENTS IN MISSISSIPPI AND SOUTH CAROLINA.  IT IS BELIEVED
THAT THIS BILL WILL PREVENT CORRUPT PRACTICES IN CONNECTION WITH
PATRONAGE APPOINTMENTS IN THE FUTURE."  H.R. REP. NO. 1366, 69TH CONG.,
1ST SESS. 

THE INFORMATION IN THIS CASE DEALS WITH THE VERY KIND OF SITUATION
THAT GAVE RISE TO THE PROVISION UNDER SCRUTINY.  IN THE YEARS PRECEDING
THE ENACTMENT OF THIS LEGISLATION MEMBERS OF CONGRESS REFERRED TO
CONTRIBUTIONS TO PARTY TREASURIES AND TO CAMPAIGN FUNDS, AS WELL AS
DIRECT PAYMENTS TO THOSE IN CHARGE OF PATRONAGE, AS AMONG THE CORRUPT
METHODS OF OBTAINING POSTMASTERSHIPS.  (FN3) SEE, E.G., 65 CONG. REC.
1408-1413.  THESE REVELATIONS ON THE FLOOR OF THE CONGRESS, AS
DISCLOSED BY THE AUTHORITATIVE HISTORY OF ENACTMENT, INDICATE THE AIM
OF CONGRESS TO PROSCRIBE PAYMENTS TO POLITICAL PARTIES IN RETURN FOR
INFLUENCE.  INDEED THIS FORM OF PAYMENT WAS A MAJOR CONCERN OF
CONGRESS.  CERTAINLY WE CANNOT INFER THAT CONGRESS EXPRESSED THIS
CONCERN IN SELF-DEFEATING TERMS.  (FN4) 

STATUTES, INCLUDING PENAL ENACTMENTS, ARE NOT INERT EXERCISES IN
LITERARY COMPOSITION.  THEY ARE INSTRUMENTS OF GOVERNMENT, AND IN
CONSTRUING THEM "THE GENERAL PURPOSE IS A MORE IMPORTANT AID TO THE
MEANING THAN ANY RULE WHICH GRAMMAR OR FORMAL LOGIC MAY LAY DOWN." 
UNITED STATES V. WHITRIDGE, 197 U.S. 135, 143.  THIS IS SO BECAUSE THE
PURPOSE OF AN ENACTMENT IS EMBEDDED IN ITS WORDS EVEN THOUGH IT IS NOT
ALWAYS PEDANTICALLY EXPRESSED IN WORDS.  SEE UNITED STATES V. WURZBACH,
280 U.S. 396, 399.  STATUTORY MEANING, IT IS TO BE REMEMBERED, IS MORE
TO BE FELT THAN DEMONSTRATED, SEE UNITED STATES V. JOHNSON, 221 U.S.
488, 496, OR, AS JUDGE LEARNED HAND HAS PUT IT, THE ART OF
INTERPRETATION IS "THE ART OF PROLIFERATING A PURPOSE."  BROOKLYN NAT.
CORP. V. COMM'R, 157 F.2D 450, 451.  IN ASCERTAINING THIS PURPOSE IT IS
IMPORTANT TO REMEMBER THAT NO MATTER HOW ELASTIC IS THE USE TO WHICH
THE TERM SCIENTIFIC MAY BE PUT, IT CANNOT BE USED TO DESCRIBE THE
LEGISLATIVE PROCESS.  THAT IS A CRUDE BUT PRACTICAL PROCESS OF THE
ADAPTATION BY THE ORDINARY CITIZEN OF MEANS TO AN END, EXCEPT WHEN IT
CONCERNS TECHNICAL PROBLEMS BEYOND THE KEN OF THE AVERAGE MAN. 

APPLYING THESE GENERALITIES TO THE IMMEDIATE OCCASION, IT IS CLEAR
THAT THE TERMS, THE HISTORY, AND THE MANIFEST PURPOSE OF 18 U.S.C. SEC.
214 COALESCE IN A CONSTRUCTION OF THAT STATUTE WHICH VALIDATES THE
INFORMATION AGAINST SHIREY.  (FN5)  THE EVIL WHICH CONGRESS SOUGHT TO
CHECK AND THE MISCHIEF WROUGHT BY WHAT IT PROSCRIBED ARE THE SAME WHEN
THE TRANSACTION IS TRIANGULAR AS WHEN ONLY TWO PARTIES ARE INVOLVED. 
(FN6)  IT IS INCREDIBLE TO SUPPOSE THAT CONGRESS MEANT TO PROHIBIT
SHIREY FROM GIVING $1,000 TO STAUFFER, TO BE PASSED ON BY THE LATTER TO
THE PARTY FUND, BUT THAT SHIREY WAS OUTSIDE THE CONGRESSIONAL
PROHIBITION FOR SECURING THE SAME INFLUENCE BY A PROMISE TO DEPOSIT
$1,000 DIRECTLY IN THE PARTY'S FUND.  THAT IS NOT THE KIND OF FINESSING
BY WHICH THIS COURT HAS HERETOFORE ALLOWED PENAL LEGISLATION TO BE
CONSTRUED.  SEE, E.G., UNITED STATES V. MOSLEY, 238 U.S. 383, AND
UNITED STATES V. SAYLOR, 322 U.S. 385. 

THE JUDGMENT IS REVERSED. 

FN1  THE INFORMATION CHARGES AS FOLLOWS: 

"ON OR ABOUT THE 5TH DAY OF DECEMBER 1953, IN THE CITY OF YORK,
MIDDLE DISTRICT OF PENNSYLVANIA, AND WITHIN THE JURISDICTION OF THIS
COURT, GEORGE DONALD SHIREY, IN VIOLATION OF THE ACT OF CONGRESS, JUNE
25, 1948, C. 645, SEC. 1, 62 STAT. 694, 18 U.S.C. SEC. 214, DID
KNOWINGLY, WILFULLY AND UNLAWFULLY OFFER OR PROMISE TO S. WALTER
STAUFFER, A MEMBER OF CONGRESS OF THE 19TH CONGRESSIONAL DISTRICT OF
PENNSYLVANIA, TO DONATE $1,000 A YEAR TO THE REPUBLICAN PARTY TO BE
USED AS THEY SEE FIT, IN CONSIDERATION OF THE USE OR THE PROMISE TO USE
ANY INFLUENCE TO PROCURE FOR HIM THE APPOINTIVE OFFICE, UNDER THE
UNITED STATES, OF POSTMASTER OF YORK, PENNSYLVANIA." 

FN2  WHETHER THE WORD "PERSON" IN A PARTICULAR STATUTE INCLUDES A
PARTICULAR BODY, A CORPORATION, OR ASSOCIATION IS ESSENTIALLY A MATTER
OF CONSTRUCTION OF THAT STATUTE, AIDED, WHERE POSSIBLE, BY GENERAL
STATUTORY DEFINITIONS.  IF THE PURPOSE OF A STATUTE IS SUCH AS TO
DICTATE THE INCLUSION OF A PARTICULAR BODY WITHIN ITS SCOPE THEN THE
STATUTE IS GENERALLY SO INTERPRETED.  SINCE 18 U.S.C. SEC. 214 WAS
AIMED AT PROHIBITING THE PURCHASE OF INFLUENCE, IT IS DIFFICULT TO
CONCLUDE THAT CONGRESS WOULD PROHIBIT PAYMENTS TO FIRMS AND
CORPORATIONS AND NOT PROSCRIBE PAYMENTS TO POLITICAL ORGANIZATIONS,
SINCE THE INFLUENCE OF POLITICAL PARTIES IN SECURING JOBS AND THEIR
INVOLVEMENT IN THE PATRONAGE PROCESS IS GREATER THAN THAT OF PRIVATE
COMPANIES.  WE MUST BE BLIND NOT TO KNOW THAT AMONG THE ABUSES WHICH
LED TO THE LEGISLATION WERE GIFTS TO POLITICAL PARTIES AND CAMPAIGN
TREASURIES, ETC.  ALTHOUGH THESE MOSTLY TOOK THE FORM OF PAYMENTS TO
LOCAL CHAIRMEN, ETC., THERE IS NO REASON TO ASSUME THAT CONGRESS MEANT
TO PROSCRIBE THE PAYMENT TO THE OFFICER OF THE PARTY BUT IF A CHECK
WERE MADE OUT TO THE PARTY ITSELF, A CHECK WHICH COULD BE CASHED AND
USED BY THE OFFICERS OF THE PARTY, IT WAS NOT OUTLAWED. 

IN GEORGIA V. EVANS, 316 U.S. 159, THE COURT DECIDED THAT SEC. 7 OF
THE SHERMAN ACT ALLOWING "ANY PERSON" TO BRING A TREBLE DAMAGE ACTION,
ALLOWED THE STATE OF GEORGIA TO BRING SUCH AN ACTION.  THIS WAS IN THE
FACE OF AN EARLIER CASE HOLDING THAT THE SAME ACT DID NOT ALLOW THE
UNITED STATES TO SUE.  IN RECONCILING THE CASES THE COURT POINTED OUT
THAT THE SCOPE OF THE WORD "PERSON" DEPENDED ON ITS "LEGISLATIVE
ENVIRONMENT," AND POINTED TO THE DIFFERENCES IN CONSIDERATIONS WHICH
LED TO THE EXCLUSION OF THE UNITED STATES AND THE INCLUSION OF
GEORGIA. 

IN OHIO V. HELVERING, 292 U.S. 360, A STATUTE TAXED "PERSONS" SELLING
LIQUOR.  PERSON WAS DEFINED TO INCLUDE "PARTNERSHIP, ASSOCIATION,
COMPANY OR CORPORATION, AS WELL AS A NATURAL PERSON."  THE COURT
DECIDED THIS ALLOWED A STATE TO BE TAXED, SAYING THAT THE MEANING OF
THE WORD PERSON "DEPENDS UPON THE CONNECTION IN WHICH THE WORD IS
FOUND." 

IN STANLEY V. SCHWALBY, 147 U.S. 508, THE COURT SAID THAT THE WORD
"PERSON" IN A TEXAS STATUTE OF LIMITATIONS INCLUDED THE UNITED STATES,
AND THUS THE UNITED STATES COULD CLAIM THE BENEFIT OF THE STATUTE.  THE
COURT SAID THAT "THE WORD 'PERSON' IN THE STATUTE WOULD INCLUDE THEM AS
A BODY POLITIC AND CORPORATE." 

UNDER THESE PRINCIPLES THE STATUTORY CONTEXT HERE CLEARLY CALLS FOR
INCLUDING THE REPUBLICAN PARTY WITHIN THE TERM "PERSON." 

FN3  THE BILL WAS INTRODUCED BY CONGRESSMAN STEVENSON.  67 CONG. REC.
6419.  TWO YEARS BEFORE, IN DESCRIBING THE "CORRUPTION IN CONNECTION
WITH POSTAL APPOINTMENTS IN  ...  SOUTH CAROLINA" TO WHICH THE
COMMITTEE REPORT REFERS, CONGRESSMAN STEVENSON SAID, IN RESPONSE TO THE
QUESTION "WHERE DID THIS MONEY FINALLY FIND ITS HOME?": 

"I DO NOT KNOW.  AS I SAID HERE ONCE BEFORE, I DOUBT IF MUCH OF IT
GETS TO THE REPUBLICAN EXECUTIVE COMMITTEE, BUT I DO NOT CARE WHERE IT
GOES.  EITHER IT GOES INTO HIS POCKET AND THE POCKETS OF HIS MACHINE OR
IT GOES INTO THE COFFERS OF THE REPUBLICAN PARTY.  IF IT DOES, IT IS
THE MOST BLATANT DEFIANCE OF THE CIVIL SERVICE LAW THAT ANY PARTY HAS
EVER HAD THE HARDIHOOD TO PUT OVER, AND IT IS AS DISGRACEFUL AS THE
TEAPOT DOME PROPOSITION ANY DAY."  65 CONG. REC. 1410. 

FN4  WHEN THE BILL WHICH BECAME SEC. 1 OF THE ACT OF DECEMBER 11,
1926 (NOW 18 U.S.C.  SEC. 214), WAS INTRODUCED IN THE HOUSE, IT WAS
COUPLED WITH A BILL REQUIRING THE FILING OF AN AFFIDAVIT BY CERTAIN
OFFICERS OF THE UNITED STATES.  (THIS BILL, WITH CHANGES FROM ITS
ORIGINAL WORDING, IS NOW 5 U.S.C. SEC. 21A.)  MR. GRAHAM, INTRODUCING
BOTH BILLS, SAID:  "THEY ARE CORRELATIVE.  I PROMISED THE COMMITTEE AND
THE GENTLEMEN WHO ARE PROPONENTS OF THE BILL THAT I WOULD TRY TO GET
UNANIMOUS CONSENT TO CONSIDER BOTH BILLS TOGETHER."  67 CONG. REC.
10840. 

THE TEXT OF THIS "CORRELATIVE" BILL WAS AS FOLLOWS: 

"BE IT ENACTED, ETC., THAT EACH INDIVIDUAL HEREAFTER APPOINTED AS AN
OFFICER OF THE UNITED STATES BY THE PRESIDENT, BY AND WITH THE ADVICE
AND CONSENT OF THE SENATE, OR BY THE PRESIDENT ALONE, OR BY A COURT OF
LAW, OR BY THE HEAD OF A DEPARTMENT, SHALL, WITHIN 30 DAYS AFTER THE
EFFECTIVE DATE OF HIS APPOINTMENT, FILE WITH THE COMPTROLLER GENERAL OF
THE UNITED STATES AN AFFIDAVIT UNDER OATH STATING THAT NEITHER HE NOR
ANYONE ACTING IN HIS BEHALF HAS GIVEN, TRANSFERRED, OR PAID ANY
CONSIDERATION FOR OR IN THE EXPECTATION OR HOPE OF RECEIVING ASSISTANCE
IN SECURING SUCH APPOINTMENT. 

     *         *         *         *         * 

"SEC. 3.  WHEN USED IN THIS ACT THE TERM 'CONSIDERATION' INCLUDES A
PAYMENT, DISTRIBUTION, GIFT, SUBSCRIPTION, LOAN, ADVANCE, OR DEPOSIT OF
MONEY, OR ANYTHING OF VALUE, OR A CONTRACT, PROMISE, OR AGREEMENT,
WHETHER OR NOT LEGALLY ENFORCEABLE, TO MAKE SUCH A PAYMENT,
DISTRIBUTION, GIFT, SUBSCRIPTION, LOAN, ADVANCE, OR DEPOSIT."  IBID. 

THIS ACT HAS BEEN SINCE AMENDED, BUT THE PORTIONS HERE RELEVANT - THE
LAST PHRASES OF SEC. 1 - REMAIN UNCHANGED.  THIS IS THE AFFIDAVIT
SHIREY WOULD HAVE TO FILE WERE HE APPOINTED POSTMASTER OF YORK.  IT IS
CLEAR THAT HE COULD NOT TRUTHFULLY FILE SUCH AN AFFIDAVIT IF THE
ALLEGATIONS OF THE INFORMATION ARE TRUE.  THE FACT THAT THE SPONSOR OF
BOTH BILLS EXPRESSLY DECLARED THEM TO BE CORRELATIVE IS PERSUASIVE
EVIDENCE THAT AN ACT WHICH WOULD MAKE THE OATH IMPOSSIBLE TO TAKE IS A
VIOLATION OF SEC. 214.    FN5  THIS COURT REVIEWS JUDGMENTS, NOT
ARGUMENTS ASSAILING THEM OR SEEKING TO SUSTAIN THEM.  SEE WILLIAMS V.
UNITED STATES, 168 U.S. 382, 389.  THE JUDGMENT WHICH THE GOVERNMENT
BROUGHT HERE FOR REVIEW UNDER THE CRIMINAL APPEALS ACT OF 1907 IS THAT
"THE INFORMATION DOES NOT STATE FACTS SUFFICIENT TO CONSTITUTE AN
OFFENSE AGAINST THE UNITED STATES."  THE CORRECTNESS OF THIS JUDGMENT
DEPENDS ON THE CONSTRUCTION OF 18 U.S.C. SEC. 214 AND MORE PARTICULARLY
WHETHER THAT SECTION SUPPORTS THE ALLEGATIONS OF THE INFORMATION. 
ARGUMENTS INVOKED BY THE GOVERNMENT DO NOT DETERMINE THE MEANING OF A
STATUTE NOR DO THEY DEFINE THE SCOPE OF OUR INQUIRY INTO ITS MEANING. 
IF SEC. 214 BRINGS THE ALLEGATIONS OF THIS INFORMATION WITHIN ITS
SCOPE, AN OFFENSE IS CHARGED AND THE COURSE OF THE GOVERNMENT'S
REASONING IS BESIDE THE POINT. 

FN6  IT IS CLAIMED THAT BECAUSE SEC. 2 OF THE ACT OF DECEMBER 11,
1926, 44 STAT. 918, WHICH DEALS WITH THE USER OF INFLUENCE, IS
RESTRICTED IN SCOPE TO THE "PAYEE" OF THE MONEY OR THING OF VALUE, A
SIMILAR RESTRICTION MUST BE READ INTO SEC. 1.  THERE IS NOT ONE SHRED
OF EVIDENCE IN THE LEGISLATIVE HISTORY OR IN THE STATUTES THEMSELVES TO
INDICATE THAT THE TWO SECTIONS ARE IN ANY WAY TO BE READ "IN PARI
MATERIA."  IN FACT, NORMAL PRINCIPLES OF STATUTORY CONSTRUCTION TELL US
THAT THE USE OF THE WORD "PAYEE" IN SEC.  2, AND ITS ABSENCE IN SEC. 1,
IS CONVINCING EVIDENCE THAT THE PROVISIONS ARE DIFFERENT IN SCOPE AND
NOT CONGRUENT.  A LOOK AT THE OTHER STATUTES IN THE BRIBERY AND GRAFT
THE RECEIPT AND OFFER OF BRIBES, ETC., IS NOT IDENTICAL IN THE STATUTE
DIRECTED TO OFFER AND THAT DIRECTED TO RECEIPT.  WHETHER THIS WOULD
MEAN A DIFFERENCE IN ULTIMATE CONSTRUCTION IS NOT NOW OUR CONCERN. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE ARGUMENT THAT SEC. 214 REQUIRES THE PAYMENT OF MONEY OR OTHER
THING OF VALUE BE MADE TO THE PERSON WHO IS TO USE HIS INFLUENCE "TO
PROCURE" AN "APPOINTIVE OFFICE" IS NOT FRIVOLOUS.  THE LEGISLATIVE
HISTORY SHOWS THAT THAT WAS ONE OF THE EVILS AGAINST WHICH CONGRESS
ACTED.  BUT I AM ALSO CONVINCED THAT CONGRESS MOVED AGAINST THE OTHER
EVIL AS WELL - PAYMENT TO A POLITICAL PARTY FOR THE USE OF "INFLUENCE
TO PROCURE ANY APPOINTIVE OFFICE."  THE ABUSE IN APPOINTING POSTMASTERS
DURING THE COOLIDGE ADMINISTRATION WAS THE OCCASION FOR THE LAW; AND
THEN AS NOW (IF THE ALLEGATIONS IN THE INFORMATION ARE TO BE BELIEVED)
PAYMENTS FOR THOSE OFFICES SOMETIMES WENT TO THE PARTY, SOMETIMES TO A
POLITICIAN.  AS CONGRESSMAN STEVENSON, WHO LATER INTRODUCED THE MEASURE
IN THE HOUSE, SAID IN ANSWERING A QUESTION AS TO WHO GETS THE MONEY
PAID FOR "THE APPOINTIVE OFFICE": 

"EITHER IT GOES INTO HIS POCKET AND THE POCKETS OF HIS MACHINE OR IT
GOES INTO THE COFFERS OF THE REPUBLICAN PARTY.  IF IT DOES, IT IS THE
MOST BLATANT DEFIANCE OF THE CIVIL SERVICE LAW THAT ANY PARTY HAS EVER
HAD THE HARDIHOOD TO PUT OVER, AND IT IS AS DISGRACEFUL AS THE TEAPOT
DOME PROPOSITION ANY DAY."  65 CONG. REC. 1410. 

THE WORDS USED IN SEC. 214 ARE BROAD ENOUGH TO INCLUDE BOTH EVILS. 

I HAVE SOMETIMES FELT, AS MY DISSENTS SHOW (SEE UNITED STATES V.
CLASSIC, 313 U.S. 299, 331; ROSENBERG V. UNITED STATES, 346 U.S. 273,
310; UNITED STATES V. A&P TRUCKING CO., 358 U.S. 121, 127), THAT THE
COURT HAS NOT ALWAYS CONSTRUED A CRIMINAL STATUTE SO AS TO RESOLVE
DOUBTS IN FAVOR OF THE CITIZEN.  BUT THAT PRINCIPLE - AS HIGHLY
PREFERRED AS ANY IN A GOVERNMENT OF LAWS - DOES NO SERVICE HERE.  TO
HOLD THE CONDUCT CHARGED IN THIS INFORMATION OUTSIDE THE ACT IS TO FIND
AMBIGUITIES AND DOUBTS NOT OBVIOUS ON THE FACE OF THE LEGISLATION, NOR
JUSTIFIABLY IMPUTED FROM THE LEGISLATIVE HISTORY.  THE INCLUSION IN THE
ORIGINAL VERSION OF SEC. 215 OF LIMITING WORDS CAN INDICATE NO MORE
THAN THAT CONGRESS INTENDED A NARROWER SCOPE FOR THAT SECTION THAN FOR
SEC. 214.  IT DOES NOT SHOW THAT SEC. 214 WAS TO BE SIMILARLY
NARROWED. 

ACCORDINGLY I JOIN THE OPINION OF THE COURT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BLACK, MR. JUSTICE WHITTAKER,
AND MR. JUSTICE STEWART JOIN, DISSENTING. 

THE GOVERNMENT'S PRIMARY CONTENTION IN THIS CASE IS THAT AN OFFER TO
A CONGRESSMAN TO MAKE CONTRIBUTIONS OF MONEY TO HIS POLITICAL PARTY IS
AN OFFER OF A "THING OF VALUE" TO THAT CONGRESSMAN WITHIN THE MEANING
OF 18 U.S.C. SEC. 214.  THE COURT, IN IGNORING THIS CONTENTION, APPEARS
TO BELIEVE THAT IT IS NOT SUPPORTABLE.  THE COURT HOLDS, HOWEVER, THAT
THE INFORMATION HERE INVOLVED NEVERTHELESS STATES AN OFFENSE UNDER SEC.
214 ON EITHER OF TWO THEORIES, (1) THAT THE OFFER ALLEGED IS AN OFFER
OF MONEY TO CONGRESSMAN STAUFFER (A THEORY NOT EVEN ADVANCED BY THE
GOVERNMENT), OR (2) THAT THE REPUBLICAN PARTY IS A "PERSON" WITHIN THE
MEANING OF SEC. 214, AND THAT THE OFFER ALLEGED IS AN OFFER OF MONEY TO
THAT "PERSON."  IN LIGHT OF THE HISTORY OF SEC. 214, AND WITH PROPER
REGARD FOR THE PRINCIPLE THAT AN ESSENTIALLY AMBIGUOUS CRIMINAL STATUTE
IS TO BE STRICTLY CONSTRUED, I CANNOT AGREE THAT THIS INFORMATION
STATES AN OFFENSE UNDER SEC. 214. 

DEALING WITH THE GOVERNMENT'S PRINCIPAL CONTENTION, WHICH THE COURT
BY-PASSES, THE INFORMATION DOES NOT CHARGE THAT CONGRESSMAN STAUFFER
WOULD HAVE RECEIVED ANY DIRECT, TANGIBLE BENEFIT FROM THE PAYMENT OF
MONEY TO THE REPUBLICAN PARTY.  THE INITIAL PROBLEM, THEREFORE, IS TO
DECIDE WHETHER THE TERM "THING OF VALUE" IS SUFFICIENTLY BROAD TO
EMBRACE ANY ACT WHICH MIGHT CONSTITUTE AN INDUCEMENT TO THE PERSON TO
WHOM THE OFFER TO DO THE ACT IS MADE.  THE HISTORY OF THE STATUTE OF
WHICH SEC. 214 WAS PASSED AS A PART SHEDS CLARIFYING LIGHT ON THIS
PROBLEM. 

TITLE 18 U.S.C. SEC. 214 WAS ORIGINALLY ENACTED AS SEC. 1 OF A
STATUTE (44 STAT. 918) DESIGNED TO "PUNISH THE PURCHASE AND SALE OF
PUBLIC OFFICES."  SEE H.R. REP. NO. 1366, 69TH CONG., 1ST SESS. SECTION
2 OF THAT STATUTE READ ON THE "SELLER" OF INFLUENCE AS OPPOSED TO THE
"PURCHASER," AND IN THE 1948 CODIFICATION BECAME WHAT IS NOT THE FIRST
PARAGRAPH OF 18 U.S.C. SEC. 215.  (FN1)  AS ORIGINALLY ENACTED SEC. 2
PROVIDED: 

"IT SHALL BE UNLAWFUL TO SOLICIT OR RECEIVE FROM ANYONE WHATSOEVER,
EITHER AS A POLITICAL CONTRIBUTION, OR FOR PERSONAL EMOLUMENT, ANY SUM
OF MONEY OR THING OF VALUE, WHATSOEVER, IN CONSIDERATION OF THE PROMISE
OF SUPPORT, OR USE OF INFLUENCE, OR FOR THE SUPPORT OR INFLUENCE OF THE
PAYEE, IN BEHALF OF THE PERSON PAYING THE MONEY, OR ANY OTHER PERSON,
IN OBTAINING ANY APPOINTIVE OFFICE UNDER THE GOVERNMENT OF THE UNITED
STATES." 

I THINK IT PLAIN THAT THIS LANGUAGE WOULD NOT HAVE REACHED ONE WHO
SOLICITED, IN CONSIDERATION OF THE PROMISE OF HIS INFLUENCE, A GENERAL
POLITICAL CONTRIBUTION OF MONEY TO BE PAID DIRECTLY TO HIS PARTY. 
UNDER SUCH CIRCUMSTANCES THE POLITICAL PARTY WOULD BE THE "PAYEE" OF
THE MONEY, BUT IT WOULD BE THE INFLUENCE OF THE SOLICITOR, AS OPPOSED
TO THAT OF THE PARTY, WHICH WAS PROMISED.  AND ALTHOUGH THE PAYMENT OF
MONEY TO THE SOLICITOR'S PARTY MIGHT WELL BE "VALUABLE" TO HIM IN THE
SENSE THAT IT WOULD INDUCE HIM TO EXERT INFLUENCE, THE USE OF THE WORD
"PAYEE," AN EXTREMELY UNCONVENTIONAL TERM TO DESCRIBE THE RECIPIENT OF
INDEFINITE AND INTANGIBLE BENEFITS WHICH MIGHT FLOW FROM THE PAYMENT OF
MONEY TO ANOTHER, SHOWS THAT IT WAS NOT CONTEMPLATED THAT SUCH AN
INDIRECT INDUCEMENT SHOULD BE CONSIDERED A "THING OF VALUE" IN THE
STATUTORY SENSE. 

CONFIRMATION FOR THIS VIEW IS FOUND IN A LETTER OF ATTORNEY GENERAL
CLARK WRITTEN TO THE SENATE ON FEBRUARY 19, 1946, IN CONNECTION WITH AN
AMENDMENT TO 44 STAT. 918 PROPOSED TO DEAL WITH THE SOLICITATION OF
FEES BY PRIVATE EMPLOYMENT AGENCIES FOR REFERRING PERSONS TO FEDERAL
EMPLOYMENT OPENINGS.  IN CONTRASTING THE LANGUAGE OF THE PROPOSED
AMENDMENT WITH THAT OF SEC. 2 OF 44 STAT. 918 THE ATTORNEY GENERAL WAS
OF THE OPINION THAT THE SOLICITATION PROVISIONS OF THE EXISTING STATUTE
REACHED ONLY THE SOLICITATION OF POLITICAL CONTRIBUTIONS OR EMOLUMENTS
"ON BEHALF OF THE SOLICITOR HIMSELF."  (FN2) 

THIS PROPOSED AMENDMENT WAS ENACTED INTO LAW IN 1951.  65 STAT. 320. 
ITS EFFECT WAS MERELY TO ADD TO PRESENT SEC. 215 WHAT IS NOW THE SECOND
PARAGRAPH OF THAT SECTION.  (FN3)  THE AMENDMENT DID NOT DISTURB THE
FIRST PARAGRAPH OF SEC. 215, WHICH ALONE IS RELEVANT IN THE "USE OF
INFLUENCE" CONTEXT, AND WHICH, AS IT HAD FORMERLY STOOD IN 44 STAT.
918, HAD BEEN CONSTRUED BY THE ATTORNEY GENERAL AS ALREADY INDICATED. 

IN THE 1948 CODIFICATION THE REVISERS, IN CARRYING OVER INTO SEC. 215
OF THE PRESENT CODE SEC. 2 OF 44 STAT. 918, OMITTED THE LANGUAGE WHICH
HAD EXPRESSLY RESTRICTED ITS SCOPE TO A SITUATION WHERE THE INFLUENCE
OF THE "PAYEE" IS PROMISED.  (FN4)  BUT IT IS APPARENT THAT THIS
OMISSION WAS NOT INTENDED TO WORK A SUBSTANTIVE CHANGE IN THE STATUTE. 
(FN5)  UNDER THESE CIRCUMSTANCES THE SOLICITATION PROVISIONS OF PRESENT
SEC. 215 MUST BE READ IN THE LIGHT OF THEIR HISTORY, AND SO READ THEY
REQUIRE THE CONCLUSION THAT THEIR IMPACT IS RESTRICTED TO "THE
SOLICITATION OR RECEIPT OF COMPENSATION  ...  ON BEHALF OF THE
SOLICITOR HIMSELF."  (FN6) 

GIVEN THIS CONCLUSION, I TURN ONCE MORE TO SEC. 214, THE PROVISION
DIRECTLY INVOLVED IN THIS CASE.   THE GOVERNMENT HAS STRONGLY URGED, IN
AN EFFORT TO AVOID THE DISTRICT COURT'S HOLDING THAT THE SPECIFIC
MENTION OF "POLITICAL CONTRIBUTION" IN SEC. 215 IMPLIED ITS EXCLUSION
FROM THE TERM "THING OF VALUE" IN SEC. 214, THAT THE TWO SECTIONS ARE
PLAINLY RECIPROCAL AND MUST BE CONSTRUED IN PARI MATERIA.  I AGREE. 
THERE IS NOT THE SLIGHTEST INDICATION IN THE SPARSE LEGISLATIVE HISTORY
THAT CONGRESS INTENDED THAT THE "PURCHASE" AND "SALE" PROVISIONS OF THE
STATUTE SHOULD HAVE DIFFERENT SCOPE, NOR HAS ANY REASON WHICH WOULD
REASONABLY SUPPORT A DIFFERENCE IN SCOPE BEEN SUGGESTED TO US. (FN7)  I
CANNOT BELIEVE THAT CONGRESS INTENDED THAT ALTHOUGH A CONGRESSMAN
SOLICITING THE KIND OF PARTY CONTRIBUTION CHARGED IN THIS INFORMATION
IN RETURN FOR HIS INFLUENCE WOULD NOT BE COVERED UNDER SEC. 215 (AS THE
COURT APPEARS TO CONCEDE IS SO), NEVERTHELESS THE INDIVIDUAL FROM WHOM
THE CONTRIBUTION WAS SOLICITED WOULD, BY PROMISING TO MAKE IT, BECOME
GUILTY OF A CRIME AGAINST THE UNITED STATES UNDER SEC. 214 (AS THE
COURT NOW HOLDS).  FOR SURELY CONGRESS COULD NOT HAVE BEEN LESS EAGER
TO REACH CORRUPTION ON THE PART OF GOVERNMENT OFFICIALS THAN ATTEMPTS
BY INDIVIDUALS TO TAKE ADVANTAGE OF THAT CORRUPTION.  IT FOLLOWS THAT
JUST AS THE SOLICITATION OF POLITICAL CONTRIBUTIONS TO BE PAID DIRECTLY
TO A PARTY TREASURY IN RETURN FOR THE PROMISE OF THE SOLICITOR'S
INFLUENCE IS NOT INTERDICTED BY SEC. 215, THE CONVERSE OF THAT
SITUATION, THE OFFERING TO A CONGRESSMAN OF A CONTRIBUTION PAYABLE
DIRECTLY TO HIS PARTY'S TREASURY, IN RETURN FOR THE PROMISE OF HIS
INFLUENCE, IS NOT REACHED BY SEC. 214.  (FN8) 

GIVEN THESE CONSIDERATIONS, EVEN IF THE COURT WERE RIGHT IN HOLDING
THAT THE CONDUCT HERE ALLEGED IS AN OFFER OF MONEY TO CONGRESSMAN
STAUFFER I WOULD THINK IT WRONG IN GOING ON TO DECIDE THAT THE
INFORMATION STATES AN OFFENSE UNDER SEC. 214.  ENTIRELY APART FROM THE
STATUTORY HISTORY, HOWEVER, I THINK IT A REMARKABLE CONSTRUCTION OF THE
LANGUAGE OF SEC. 214 TO FIND THAT AN OFFER TO X TO PAY MONEY TO Y, WITH
WHOM X IS NOT CLAIMED TO HAVE ANY FINANCIAL RELATIONSHIP, IS AN OFFER
OF MONEY TO X.  UNDER THESE CIRCUMSTANCES THERE IS AN OFFER TO X, BUT
IT IS PLAINLY AN OFFER TO PERFORM AN ACT (PAY MONEY TO Y) RATHER THAN
AN OFFER OF MONEY TO X. THE STATUTE DOES NOT SAY THAT ANY OFFER TO A
PERSON INVOLVING MONEY IS RENDERED CRIMINAL IF THE OTHER STATUTORY
CRITERIA ARE MET, BUT ONLY THAT AN OFFER OF MONEY TO A PERSON MAY BE. 

MY READING OF THE STATUTE MAKES IT UNNECESSARY TO DECIDE WHETHER, AS
THE GOVERNMENT FURTHER CONTENDS AND THE COURT HOLDS, THE REPUBLICAN
PARTY IS A "PERSON" WITHIN THE MEANING OF SEC. 214, ALTHOUGH I WOULD
HAVE CONSIDERABLE DIFFICULTY IN HOLDING THAT WHAT IS CHARACTERIZED BY
THE COURT AS AN "AMORPHOUS GROUP OF INDIVIDUALS" FITS WITHIN THIS TERM,
PARTICULARLY WHEN CONGRESS SAW FIT EXPLICITLY TO ADD REFERENCES TO
"FIRM" AND "CORPORATION" TO SECURE THE INCLUSION OF THESE ENTITIES. 
(FN9)  I THINK THAT THE USE OF THE WORDS "OF THE PAYEE" IN WHAT IS NOW
SEC. 215 MERELY MADE EXPLICIT WHAT WAS INTENDED TO BE IMPLICIT IN SEC.
214 - THAT THE "INFLUENCE" SOUGHT MUST BE THAT OF THE "PERSON, FIRM, OR
CORPORATION" TO WHOM ANY MONEY OR THING OF VALUE IS PROMISED OR PAID. 
(FN10)  AND ALTHOUGH THE INFORMATION DOES NOT CHARGE IN TERMS THAT IT
WAS THE INFLUENCE OF CONGRESSMAN STAUFFER, AS OPPOSED TO THAT OF THE
REPUBLICAN PARTY, WHICH WAS SOUGHT BY APPELLEE, IT IS CLEAR FROM THE
BRIEF AND ARGUMENT OF THE GOVERNMENT IN THIS COURT THAT IT STANDS ON
THE FORMER CONSTRUCTION OF THE INFORMATION. 

IT IS OF COURSE TRUE, AS THE GOVERNMENT ARGUES, THAT RELATIVELY
INDIRECT AND SUBTLE INDUCEMENTS MAY CONTAIN THE SEEDS OF THE SAME
MISCHIEF AS THE CRUDEST BRIBERY.  BUT "IT WOULD BE DANGEROUS, INDEED,
TO CARRY THE PRINCIPLE, THAT A CASE WHICH IS WITHIN THE REASON OR
MISCHIEF OF A STATUTE, IS WITHIN ITS PROVISIONS, SO FAR AS TO PUNISH A
CRIME NOT ENUMERATED IN THE STATUTE, BECAUSE IT IS OF EQUAL ATROCITY,
OR OF KINDRED CHARACTER, WITH THOSE WHICH ARE ENUMERATED."  UNITED
STATES V. WILTBERGER, 5 WHEAT.  76, 96.  IN LIGHT OF THE CONSIDERATIONS
DISCUSSED ABOVE IT CANNOT BE SAID THAT CONGRESS IN 18 U.S.C. SEC. 214
HAS UNEQUIVOCALLY SEEN FIT TO OUTLAW CONDUCT OF THE KIND CHARGED IN
THIS INFORMATION.  (FN11)  THE MOST THAT CAN BE SAID IN FAVOR OF THE
GOVERNMENT'S POSITION IS THAT THE STATUTE IS HIGHLY AMBIGUOUS IN THE
RESPECT INVOLVED HERE, AND THIS IN ANY EVENT SHOULD REQUIRE REJECTION
OF THE GOVERNMENT'S POSITION UNDER PRINCIPLES DISCUSSED IN BELL V.
UNITED STATES, 349 U.S. 81.  I WOULD AFFIRM.    FN1  SEE NOTE 4,
INFRA. 

FN2  THE ATTORNEY GENERAL WROTE:  "FURTHER, UNDER THE PROPOSED
LANGUAGE, THE SOLICITATION OR RECEIPT OF COMPENSATION, EITHER ON BEHALF
OF THE SOLICITOR OR ANOTHER, WOULD BE PROHIBITED, WHEREAS THE EXISTING
LAW MERELY PROHIBITS THE SOLICITATION OR RECEIPT OF COMPENSATION,
EITHER AS A POLITICAL CONTRIBUTION OR PERSONAL EMOLUMENT ON BEHALF OF
THE SOLICITOR HIMSELF."    THE ATTORNEY GENERAL'S LETTER FIRST APPEARS
IN S. REP. NO. 1036, 79TH CONG., 2D SESS., AND WAS CARRIED OVER INTO A
SERIES OF SENATE REPORTS ON BILLS EMBODYING THE PROPOSED AMENDMENT.  S.
REP. NO. 2, 80TH CONG., 1ST SESS.; S. REP. NO. 7, 81ST CONG., 1ST
SESS.; S. REP. NO. 3, 82D CONG., 1ST SESS.

FN3  THAT PARAGRAPH PROVIDES: 

"WHOEVER SOLICITS OR RECEIVES ANY THING OF VALUE IN CONSIDERATION OF
AIDING A PERSON TO OBTAIN EMPLOYMENT UNDER THE UNITED STATES EITHER BY
REFERRING HIS NAME TO AN EXECUTIVE DEPARTMENT OR AGENCY OF THE UNITED
STATES OR BY REQUIRING THE PAYMENT OF A FEE BECAUSE SUCH PERSON HAS
SECURED SUCH EMPLOYMENT SHALL BE FINED NOT MORE THAN $1,000, OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH.  THIS SECTION SHALL NOT
APPLY TO SUCH SERVICES RENDERED BY AN EMPLOYMENT AGENCY PURSUANT TO THE
WRITTEN REQUEST OF AN EXECUTIVE DEPARTMENT OR AGENCY OF THE UNITED
STATES." 

FN4  THE RELEVANT PORTION OF 18 U.S.C. SEC. 215 READS: 

"WHOEVER SOLICITS OR RECEIVES, EITHER AS A POLITICAL CONTRIBUTION, OR
FOR PERSONAL EMOLUMENT, ANY MONEY OR THING OF VALUE, IN CONSIDERATION
OF THE PROMISE OF SUPPORT OR USE OF INFLUENCE IN OBTAINING FOR ANY
PERSON ANY APPOINTIVE OFFICE OR PLACE UNDER THE UNITED STATES, SHALL BE
FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR
BOTH." 

FN5  THE REVISER'S NOTE REFERS EXPRESSLY TO OTHER SUBSTANTIVE CHANGES
MADE IN THE SECTION AT THE TIME OF CODIFICATION, AND APPEARS TO CLASS
THE OMISSION OF THE "PAYEE" LANGUAGE UNDER "CHANGES IN STYLE." 

IT IS ALSO NOTEWORTHY THAT THE SENATE REPORT ON THE BILL WHICH BECAME
THE "EMPLOYMENT AGENCY" AMENDMENT TO SEC. 215 IN THE 82D CONGRESS,
THREE YEARS AFTER THE CODIFICATION OF TITLE 18, CONTAINED THE LETTER OF
THE ATTORNEY GENERAL CONSTRUING THE PRECODIFICATION LANGUAGE WITH NO
SUGGESTION THAT THE MEANING OF THAT LANGUAGE HAD BEEN ALTERED BY THE
CHANGES MADE AT THE TIME OF CODIFICATION.  SEE S. REP. NO. 3, 82D
CONG., 1ST SESS. 

FN6  SEE NOTE 2, SUPRA. 

FN7  THAT THE TWO PROVISIONS ARE RECIPROCAL IS FURTHER SHOWN BY THE
FACT THAT THE SAME SUBSTANTIVE AND STYLISTIC CHANGES WERE MADE IN BOTH
OF THEM IN 1948, THE REVISER'S NOTE UNDER SEC. 215 MERELY INCORPORATING
THAT UNDER SEC. 214 BY REFERENCE. 

IT IS ARGUED THAT THIS CONCLUSION IS CONTROVERTED BY THE CIRCUMSTANCE
THAT ON THE SAME DAY AS 44 STAT. 918 WAS INTRODUCED, ANOTHER BILL, ALSO
44 STAT. 918 (NOW 5 U.S.C. SEC.  21A), WAS ALSO INTRODUCED REQUIRING
THOSE APPOINTED TO PUBLIC OFFICE UNDER THE UNITED STATES TO FILE
AFFIDAVITS THAT THEY HAD NOT PAID ANY CONSIDERATION TO ANYONE IN THE
EXPECTATION OF RECEIVING APPOINTMENT, AND THAT THE TWO BILLS WERE
DESCRIBED AS "CORRELATIVE."  THERE IS NO REASON TO TAKE THE WORD
"CORRELATIVE" TO IMPLY AN IDENTITY OF SCOPE BETWEEN THE TWO BILLS,
SINCE THE WORD EQUALLY WELL BEARS THE INTERPRETATION THAT 5 U.S.C. SEC.
21A WAS INTENDED TO BE MERELY SUPPLEMENTARY TO THE CRIMINAL PROVISIONS
OF SECS. 214 AND 215.  INDEED, IT IS ON ITS FACE BROADER THAN SEC. 214
IN ITS REFERENCE TO MERE "ASSISTANCE" AS OPPOSED TO "INFLUENCE." 

FN8  THIS IS NOT, OF COURSE, TO SUGGEST THAT AN OFFER OF A "POLITICAL
CONTRIBUTION" TO A CONGRESSMAN'S PERSONAL CAMPAIGN FUND IN RETURN FOR
HIS PROMISE OF INFLUENCE WOULD BE WITHOUT THE SCOPE OF SEC. 214, OR
THAT THE SOLICITATION OF SUCH A CONTRIBUTION WOULD NOT FALL WITHIN SEC.
215. 

FN9  ALL OF THE CASES CITED BY THE COURT IN THIS CONNECTION INVOLVE
CLEARLY DEFINED ENTITIES - NOT "AMORPHOUS" GROUPS. 

FN10  IT IS APPARENT THAT THE REVISERS BELIEVED THAT THE OMISSION OF
THE WORDS "OF THE PAYEE" IN THE RECODIFICATION OF 44 STAT. 918 ADDED
NOTHING TO THE MEANING OF SEC. 215.  SEE P. 266, SUPRA. 

FN11  THE COURT DERIVES SUPPORT FOR ITS HOLDING FROM VARIOUS
STATEMENTS CONCERNING OFFICIAL CORRUPTION IN OFFICE SELLING MADE ON THE
FLOOR OF THE HOUSE OF REPRESENTATIVES SOME TWO YEARS BEFORE THE PASSAGE
OF THE BILL WHICH IS NOW SECS. 214 AND 215.  SINCE THESE STATEMENTS
WERE DIRECTED EXCLUSIVELY TO REVELATIONS OF CORRUPTION ON THE PART OF
SELLERS OF INFLUENCE AND THE COURT APPEARS TO CONCEDE THAT THE SELLER
OF INFLUENCE IS NOT COVERED BY SEC. 215 UNLESS HE IS A "PAYEE," IT IS
DIFFICULT TO SEE HOW THESE STATEMENTS CAN BE UTILIZED TO SUPPORT A
BROADER READING OF SEC. 214. 
..END :













MELROSE DISTILLERS V. UNITED STATES 359 U.S. 271 


NO. 404.  ARGUED MARCH 30, 1959 - DECIDED APRIL 20, 1959 - 258 F.2D 726,
AFFIRMED. 


PETITIONERS, TWO MARYLAND CORPORATIONS AND A DELAWARE CORPORATION,
WERE INDICTED IN A FEDERAL DISTRICT COURT FOR RESTRAINING TRADE AND
CONSPIRING AND ATTEMPTING TO MONOPOLIZE COMMERCE IN VIOLATION OF SECS.
1 AND 2 OF THE SHERMAN ACT.  THEY WERE DISSOLVED UNDER THEIR RESPECTIVE
STATE STATUTES AND MOVED TO DISMISS THE INDICTMENT ON THE GROUND THAT
THEIR DISSOLUTION ABATED THE PROCEEDING.  HELD:  UNDER THE APPLICABLE
MARYLAND AND DELAWARE STATUTES, THEIR CORPORATE LIVES WERE SUFFICIENTLY
CONTINUED TO MAKE THEM "EXISTING" CORPORATIONS WITHIN THE MEANING OF
SEC. 8 OF THE SHERMAN ACT, SO THAT THE PROCEEDING DID NOT ABATE.  PP.
271-274. 

MELROSE DISTILLERS, INC., ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE CORPORATIONS - TWO ORGANIZED UNDER MARYLAND LAW AND
ONE UNDER DELAWARE LAW - AND WHOLLY OWNED SUBSIDIARIES OF SCHENLEY
INDUSTRIES, INC. THEY WERE INDICTED WITH OTHERS FOR RESTRAINING TRADE,
CONSPIRING TO MONOPOLIZE AND ATTEMPTING TO MONOPOLIZE COMMERCE IN
VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C.
SECS. 1, 2.  SHORTLY AFTER THE INDICTMENT WAS RETURNED, PETITIONERS
WERE DISSOLVED UNDER THEIR RESPECTIVE STATE STATUTES AND BECAME
SEPARATE DIVISIONS OF A NEW CORPORATION UNDER THE SAME ULTIMATE
OWNERSHIP.  THEY THEN MOVED TO DISMISS THE INDICTMENT ON THE GROUND
THAT THEIR DISSOLUTION ABATED THE PROCEEDING.  THE DISTRICT COURT
DENIED THE MOTIONS, HOLDING THAT UNDER THE APPLICABLE MARYLAND AND
DELAWARE STATUTES THE EXISTENCE OF THE DISSOLVED CORPORATIONS CONTINUED
SO FAR AS PROSECUTION OF THIS CRIMINAL PROCEEDING WAS CONCERNED.  138
F. SUPP.  685.  PETITIONERS THEN PLEADED NOLO CONTENDERE AND THE
DISTRICT COURT LEVIED FINES AGAINST THEM.  THE COURT OF APPEALS
AFFIRMED, 258 F.2D 726.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI WHICH WE GRANTED BECAUSE OF A CONFLICT AMONG THE CIRCUITS. 
(FN1)  358 U.S. 878. 

WE START FROM THE PREMISE THAT IN THE FEDERAL DOMAIN PROSECUTIONS
ABATE BOTH ON THE DEATH OF AN INDIVIDUAL DEFENDANT (LIST V.
PENNSYLVANIA, 131 U.S. 396; SCHREIBER V. SHARPLESS, 110 U.S. 76) AND ON
THE DISSOLUTION OF A CORPORATE DEFENDANT (DEFENSE SUPPLIES CORP. V.
LAWRENCE WAREHOUSE CO., 336 U.S. 631, 634), UNLESS THE ACTION IS SAVED
BY STATUTE.  WE NEED NOT DECIDE WHETHER FEDERAL LAW ALONE WOULD BE
SUFFICIENT TO SAVE A FEDERAL CAUSE OF ACTION AGAINST A CORPORATION
DISSOLVED UNDER STATE LAW.  WE HAVE HERE A SITUATION WHERE THE
INTERPLAY OF FEDERAL AND STATE LAW MAKES IT CLEAR THAT PETITIONERS DID
NOT ESCAPE CRIMINAL RESPONSIBILITY UNDER THE SHERMAN ACT BY THE KIND OF
DISSOLUTION DECREED UNDER MARYLAND AND DELAWARE LAW. 

THE SHERMAN LAW IN SEC. 8 DEFINES "PERSON" TO INCLUDE CORPORATIONS
"EXISTING" UNDER THE LAWS OF ANY STATE.  THE QUESTION WHETHER A
CORPORATION "EXISTS" FOR ANY PURPOSE IS THUS DETERMINED BY REFERENCE TO
STATE LAW.  WE CONCLUDE THAT UNDER BOTH MARYLAND AND DELAWARE LAW THE
LIVES OF THESE CORPORATIONS WERE NOT CUT SHORT, AS IS SOMETIMES DONE ON
DISSOLUTION, CF. CHICAGO T.&T. CO. V. WILCOX BLDG. CORP., 302 U.S. 120,
BUT WERE SUFFICIENTLY CONTINUED SO THAT THIS PROCEEDING DID NOT ABATE. 

IN MARYLAND, DURING THE PERIOD RELEVANT HERE, THOUGH THE DISSOLUTION
OF THE CORPORATION WAS EFFECTIVE WHEN THE ARTICLES OF DISSOLUTION HAD
BEEN ACCEPTED, THE CORPORATION CONTINUED "IN EXISTENCE FOR THE PURPOSE
OF PAYING, SATISFYING AND DISCHARGING ANY EXISTING DEBTS AND
OBLIGATIONS ...  ."  (FLACK'S MD. ANN. CODE, 1951, ART. 23, SEC.
72(B).)  IT WAS ALSO PROVIDED IN SEC. 78(A) THAT "SUCH DISSOLUTION"
SHALL NOT "ABATE ANY PENDING SUIT OR PROCEEDING BY OR AGAINST THE
CORPORATION  ...  ."  WE HAVE FOUND NO MARYLAND DECISIONS INTERPRETING
THESE SECTIONS; BUT WE ARE SATISFIED THAT THE TERM "PROCEEDING," NO
MATTER HOW THE STATE COURT MAY CONSTRUE IT, (FN2) IMPLIES ENOUGH
VITALITY TO MAKE THE CORPORATION AN "EXISTING" ENTERPRISE FOR THE
PURPOSES OF SEC. 8 OF THE SHERMAN ACT. 

THE DELAWARE STATUTE SEEMS EQUALLY CLEAR, THOUGH AGAIN THERE IS NO
AUTHORITATIVE INTERPRETATION OF IT.  IT PROVIDES THAT ANY "PROCEEDING"
BEGUN BY OR AGAINST A CORPORATION BEFORE OR WITHIN THREE YEARS AFTER
DISSOLUTION SHALL CONTINUE "UNTIL ANY JUDGMENTS, ORDERS, OR DECREES
THEREIN SHALL BE FULLY EXECUTED."  DEL. CODE ANN., 1953, TIT. 8, SEC.
278; ADDY V. SHORT, 47 DEL. 157, 89 A.2D 136, 139.  THE TERM
"PROCEEDING" IS ELSEWHERE USED IN THE DELAWARE CODE AS INCLUDING
CRIMINAL PROSECUTIONS; (FN3) AND THAT SEEMS TO US TO BE CONSISTENT WITH
ITS NORMAL CONSTRUCTION.  (FN4)  WE CONCLUDE THAT IRRESPECTIVE OF HOW
THE DELAWARE STATUTE MAY BE CONSTRUED BY THE DELAWARE COURTS, IT
SUFFICIENTLY CONTINUED THE EXISTENCE OF THIS CORPORATION FOR THE
PURPOSE OF SEC. 8 OF THE SHERMAN ACT. 

POLICY REASONS LOOK TO THE SAME RESULT.  PETITIONERS WERE WHOLLY
OWNED SUBSIDIARIES OF SCHENLEY INDUSTRIES, INC. AFTER DISSOLUTION THEY
SIMPLY BECAME DIVISIONS OF A NEW CORPORATION UNDER THE SAME ULTIMATE
OWNERSHIP.  IN THIS SITUATION THERE IS NO MORE REASON FOR ALLOWING THEM
TO ESCAPE CRIMINAL PENALTIES THAN DAMAGES IN CIVIL SUITS.  AS THE COURT
OF APPEALS NOTED, A CORPORATION CANNOT BE SENT TO JAIL.  THE DISCHARGE
OF ITS LIABILITIES WHETHER CRIMINAL OR CIVIL CAN BE EFFECTED ONLY BY
THE PAYMENT OF MONEY.  AFFIRMED. 

FN1  SEE UNITED STATES V. LINE MATERIAL CO., 202 F.2D 929; UNITED
STATES V. UNITED STATES VANADIUM CORP., 230 F.2D 646.  CF. UNITED
STATES V. P.F. COLLIER & SON, 208 F.2D 936. 

FN2  A MEMORANDUM FILED BY THE ATTORNEY GENERAL'S OFFICE STATES THAT
WHILE THERE ARE NO RULINGS ON THE POINT BY THE MARYLAND COURT OF
APPEALS OR BY THE ATTORNEY GENERAL, "THE ISSUE HAS BEEN FULLY COVERED
IN OPINIONS OF THE DISTRICT COURT AND THE FOURTH CIRCUIT COURT OF
APPEALS."  AND IT ADDS, "WE WISH TO EXPRESS, HOWEVER, OUR CONCURRENCE
WITH THE RULINGS OF THE LOWER COURTS IN THE PENDING LITIGATION." 

FN3  "WHENEVER A CORPORATION IS INFORMED AGAINST IN A CRIMINAL
PROCEEDING  ...  ."  TIT. 11, SEC. 1702. 

FN4  AN ARGUMENT TO THE CONTRARY IS PREMISED ON DEL. CODE ANN., 1953,
TIT. 8, SEC. 281, WHICH PROVIDES THAT THE TRUSTEES OF A DISSOLVED
CORPORATION SHALL, AFTER PAYMENT OF ALLOWANCES, EXPENSES, AND COSTS,
PAY "THE OTHER DEBTS DUE FROM THE CORPORATION."  IT IS URGED THAT
"DEBTS" IN THIS SETTING MEANS EXISTING DEBTS.  BUT THAT SEEMS TO US TOO
NARROW A READING IN LIGHT OF THE PROVISION IN SEC. 279 WHICH
CONTEMPLATES THE ENTRY OF JUDGMENTS AGAINST THE CORPORATION. 
..END :





















PETTY V. TENNESSEE-MISSOURI BRIDGE COMMISSION 359 U.S. 275 


NO. 233.  ARGUED MARCH 4, 1959 - DECIDED APRIL 20, 1959 - 254 F.2D 857,
REVERSED. 


PETITIONER SUED IN A FEDERAL DISTRICT COURT TO RECOVER UNDER THE JONES
ACT FOR THE DEATH OF HER HUSBAND WHILE WORKING ABOARD A MISSISSIPPI
RIVER FERRYBOAT OWNED BY RESPONDENT, AN AGENCY OF THE STATES OF
TENNESSEE AND MISSOURI CREATED BY A COMPACT ENTERED INTO BETWEEN THEM
WITH THE CONSENT OF CONGRESS.  THE COMPACT AUTHORIZES RESPONDENT "TO
SUE AND BE SUED," AND THE ACT OF CONGRESS APPROVING IT PROVIDES THAT IT
SHALL NOT BE CONSTRUED "TO AFFECT, IMPAIR, OR DIMINISH ANY RIGHT, POWER
OR JURISDICTION OF  ...  ANY COURT  ...  OF THE UNITED STATES, OVER OR
IN REGARD TO ANY NAVIGABLE WATERS, OR ANY COMMERCE BETWEEN THE
STATES."  HELD: 

1.  BY ENTERING INTO THE COMPACT AND ACTING UNDER IT AFTER
CONGRESSIONAL APPROVAL, THE STATES WAIVED WHATEVER IMMUNITY FROM A SUIT
SUCH AS THIS IN A FEDERAL COURT RESPONDENT, AS THEIR AGENCY, MIGHT HAVE
ENJOYED UNDER THE ELEVENTH AMENDMENT.  PP. 276-282. 

(A)  THE CONSTRUCTION OF A COMPACT SANCTIONED BY CONGRESS UNDER ART.
I, SEC. 10, CL. 3, OF THE CONSTITUTION PRESENTS A FEDERAL QUESTION OVER
WHICH THIS COURT HAS THE FINAL SAY.  PP. 278-279. 

(B)  CONGRESS APPROVED THE SUE-AND-BE-SUED CLAUSE IN THE COMPACT HERE
INVOLVED UNDER CONDITIONS THAT MAKE IT CLEAR THAT THE STATES ACCEPTING
IT WAIVED ANY IMMUNITY FROM SUIT WHICH THEY OTHERWISE MIGHT HAVE HAD. 
PP. 279-280. 

(C)  THE ABOVE-QUOTED PROVISO IN THE ACT OF CONGRESS APPROVING THE
COMPACT, READ IN THE LIGHT OF THE SUE-AND-BE-SUED CLAUSE IN THE
COMPACT, RESERVES THE JURISDICTION OF THE FEDERAL COURTS TO ACT IN ANY
MATTER ARISING UNDER THE COMPACT OVER WHICH THEY WOULD HAVE
JURISDICTION BY VIRTUE OF THE FACT THAT THE MISSISSIPPI IS A NAVIGABLE
STREAM AND THAT INTERSTATE COMMERCE IS INVOLVED.  PP. 280-282. 

2.  RESPONDENT, AS A BI-STATE CORPORATION, IS NOT EXCEPTED FROM THE
TERM "EMPLOYER" AS USED IN THE JONES ACT.  PP. 282-283. 

PETTY, ADMINISTRATRIX, V. TENNESSEE-MISSOURI BRIDGE COMMISSION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WHEN THE COURT IN 1793 HELD THAT A STATE COULD BE SUED IN THE FEDERAL
COURTS BY A CITIZEN OF ANOTHER STATE (FN1) (CHISHOLM V. GEORGIA, 2
DALL.  419), THE ELEVENTH AMENDMENT (FN2) WAS PASSED PRECLUDING IT.
BUT THIS IS AN IMMUNITY WHICH A STATE MAY WAIVE AT ITS PLEASURE
(MISSOURI V. FISKE, 290 U.S. 18, 24) AS BY A GENERAL APPEARANCE IN
LITIGATION IN A FEDERAL COURT (CLARK V. BARNARD, 108 U.S. 436, 447-448)
OR BY STATUTE.  FORD MOTOR CO. V. DEPARTMENT OF TREASURY, 323 U.S. 459,
468-470.  THE CONCLUSION THAT THERE HAS BEEN A WAIVER OF IMMUNITY WILL
NOT BE LIGHTLY INFERRED.  MURRAY V. WILSON DISTILLING CO., 213 U.S.
151, 171.  NOR WILL A WAIVER OF IMMUNITY FROM SUIT IN STATE COURTS DO
SERVICE FOR A WAIVER OF IMMUNITY WHERE THE LITIGATION IS BROUGHT IN THE
FEDERAL COURT.  CHANDLER V. DIX, 194 U.S. 590, 591-592.  AND WHERE A
PUBLIC INSTRUMENTALITY IS CREATED WITH THE RIGHT "TO SUE AND BE SUED"
THAT WAIVER OF IMMUNITY IN THE PARTICULAR SETTING MAY BE RESTRICTED TO
SUITS OR PROCEEDINGS OF A SPECIAL CHARACTER IN THE STATE, NOT THE
FEDERAL, COURTS.  CF. DELAWARE RIVER COMM'N V. COLBURN, 310 U.S. 419. 
SUITS AGAINST AGENCIES OF A STATE BASED ON MARITIME TORTS ARE NO
EXCEPTION TO THESE RULES.  EX PARTE NEW YORK, 256 U.S. 490. 

THE QUESTION HERE IS WHETHER TENNESSEE AND MISSOURI HAVE WAIVED THEIR
IMMUNITY UNDER THE FACTS OF THIS CASE. 

CONGRESS, UNDER CONDITIONS SPECIFIED IN 33 U.S.C. SEC. 525 ET SEQ.,
GAVE ITS CONSENT TO THE CONSTRUCTION OF BRIDGES OVER THE NAVIGABLE
WATERS IN THE UNITED STATES.  RESPONDENT IS A "BODY CORPORATE AND
POLITIC" CREATED BY MISSOURI (13 VERNON'S ANN. STAT., TIT. 14, SEC.
234.360) AND TENNESSEE (P.L. 1949, CC. 167, 168) ACTING PURSUANT TO THE
COMPACT CLAUSE OF THE CONSTITUTION.  ART. I, SEC. 10, CL. 3.  (FN3)
THE COMPACT PREPARED BY THE TWO STATES AND SUBMITTED TO THE CONGRESS
PROVIDED IN ART. I, SECS. 1 AND 2, THAT RESPONDENT SHOULD HAVE THE
POWER TO BUILD A BRIDGE AND OPERATE FERRIES ACROSS THE MISSISSIPPI AT
SPECIFIED POINTS AND IN ART. I, SEC. 3, THAT IT SHOULD HAVE THE POWER
"TO CONTRACT, TO SUE AND BE SUED IN ITS OWN NAME."  CONGRESS GRANTED
ITS CONSENT TO THE COMPACT, 63 STAT. 930, STATING IN A PROVISO: 

"THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO AFFECT, IMPAIR,
OR DIMINISH ANY RIGHT, POWER, OR JURISDICTION OF THE UNITED STATES OR
OF ANY COURT, DEPARTMENT, BOARD, BUREAU, OFFICER, OR OFFICIAL OF THE
UNITED STATES, OVER OR IN REGARD TO ANY NAVIGABLE WATERS, OR ANY
COMMERCE BETWEEN THE STATES OR WITH FOREIGN COUNTRIES, OR ANY BRIDGE,
RAILROAD, HIGHWAY, PIER, WHARF, OR OTHER FACILITY OR IMPROVEMENT, OR
ANY OTHER PERSON, MATTER, OR THING, FORMING THE SUBJECT MATTER OF THE
AFORESAID COMPACT OR AGREEMENT OR OTHERWISE AFFECTED BY THE TERMS
THEREOF." 

THE FACTS ARE THAT PETITIONER'S HUSBAND WAS EMPLOYED ON A FERRYBOAT
OPERATED BY RESPONDENT AS A COMMON CARRIER ACROSS THE MISSISSIPPI
BETWEEN A POINT IN MISSOURI AND ONE IN TENNESSEE.  HE MET HIS DEATH
WHEN HE WAS TRAPPED IN THE PILOTHOUSE OF THE FERRYBOAT AS IT SANK,
FOLLOWING A COLLISION WITH ANOTHER BOAT.  SUIT WAS BROUGHT UNDER THE
JONES ACT, 46 U.S.C. SEC. 688, CHARGING RESPONDENT WITH NEGLIGENCE. 

THE DISTRICT COURT GRANTED THE MOTION TO DISMISS, HOLDING THAT
RESPONDENT IS AN AGENCY OF THE STATES OF TENNESSEE AND MISSOURI AND
IMMUNE FROM SUIT IN TORT.  153 F. SUPP. 512.  THE COURT OF APPEALS,
AGREEING WITH THAT VIEW, AFFIRMED.  254 F.2D 857.  THE CASE IS HERE ON
CERTIORARI.  358 U.S. 811. 

THE CONSTRUCTION OF A COMPACT SANCTIONED BY CONGRESS UNDER ART. I,
SEC. 10, CL. 3, OF THE CONSTITUTION PRESENTS A FEDERAL QUESTION. 
DELAWARE RIVER COMM'N V. COLBURN, SUPRA, AT 427.  MOREOVER, THE MEANING
OF A COMPACT IS A QUESTION ON WHICH THIS COURT HAS THE FINAL SAY. 
(FN4)  DYER V. SIMS, 341 U.S. 22, 28.  THE RULE IS NO DIFFERENT WHEN
THE CONTENTION IS THAT A STATE HAS, BY COMPACT, WAIVED ITS IMMUNITY
FROM SUIT.  OF COURSE, WHEN THE ALLEGED BASIS OF WAIVER OF THE ELEVENTH
AMENDMENT'S IMMUNITY IS A STATE STATUTE, THE QUESTION TO BE ANSWERED IS
WHETHER THE STATE HAS INTENDED TO WAIVE ITS IMMUNITY.  CHANDLER V. DIX,
SUPRA.  BUT WHERE THE WAIVER IS, AS HERE, CLAIMED TO ARISE FROM A
COMPACT BETWEEN SEVERAL STATES, THE COURT IS CALLED ON TO INTERPRET NOT
UNILATERAL STATE ACTION BUT THE TERMS OF A CONSENSUAL AGREEMENT, THE
MEANING OF WHICH, BECAUSE MADE BY DIFFERENT STATES ACTING UNDER THE
CONSTITUTION AND WITH CONGRESSIONAL APPROVAL, IS A QUESTION OF FEDERAL
LAW.  DELAWARE RIVER COMM'N V. COLBURN, SUPRA.  IN MAKING THAT
INTERPRETATION WE MUST TREAT THE COMPACT AS A LIVING INTERSTATE
AGREEMENT WHICH PERFORMS HIGH FUNCTIONS IN OUR FEDERALISM, (FN5)
INCLUDING THE OPERATION OF VAST INTERSTATE ENTERPRISES.  (FN6) 

THE COURT OF APPEALS LAID EMPHASIS ON THE LAW OF MISSOURI, WHICH, IT
SAID, CONSTRUES A SUE-AND-BE-SUED PROVISION AS NOT AUTHORIZING A SUIT
FOR NEGLIGENCE AGAINST A PUBLIC CORPORATION.  IT LIKEWISE CITED
TENNESSEE DECISIONS STRICTLY CONSTRUING STATUTES PERMITTING SUITS
AGAINST THE STATE.  WE ASSUME ARGUENDO THAT THIS SUIT MUST BE
CONSIDERED AS ONE AGAINST THE STATES SINCE THIS BI-STATE CORPORATION IS
A JOINT OR COMMON AGENCY OF TENNESSEE AND MISSOURI.  BUT WE DISAGREE
WITH THE CONSTRUCTION GIVEN BY THE COURT OF APPEALS TO THE SUE-AND-BE
SUED CLAUSE.  FOR THE RESOLUTION OF THAT QUESTION WE TURN TO FEDERAL
NOT STATE LAW.  CONGRESS MIGHT OF COURSE ADOPT AS FEDERAL LAW THE LAW
OF EITHER OR BOTH OF THE STATES.  DELAWARE RIVER COMM'N V. COLBURN,
SUPRA.  CF. COMMISSIONER V. STERN, 357 U.S. 39; HELVERING V. STUART,
317 U.S. 154; MYERS V. MATLEY, 318 U.S. 622.  BUT CONGRESS TOOK NO SUCH
STEP HERE.  IT APPROVED A SUE-AND-BE-SUED CLAUSE IN A COMPACT UNDER
CONDITIONS THAT MAKE IT CLEAR THAT THE STATES ACCEPTING IT WAIVED ANY
IMMUNITY FROM SUIT WHICH THEY OTHERWISE MIGHT HAVE. 

THIS COMPACT, APPROVED BY CONGRESS IN 1949, WAS MADE IN AN ERA WHEN
THE IMMUNITY OF CORPORATIONS PERFORMING GOVERNMENTAL FUNCTIONS WAS NOT
IN FAVOR IN THE FEDERAL FIELD.  IN KEIFER & KEIFER V. RECONSTRUCTION
FINANCE CORP., 306 U.S. 381, DECIDED NEARLY 10 YEARS BEFORE THE PRESENT
COMPACT WAS MADE, THE AUTHORITY TO SUE AND BE SUED CONTAINED IN A
FEDERAL CHARTER GRANTED A GOVERNMENT CORPORATION WAS HELD TO BE BROAD
ENOUGH TO INCLUDE SUITS IN TORTS, AT LEAST WHERE THE DUTIES RELIED UPON
"HAVE THEIR SOURCE IN CONTRACT EVEN THOUGH THE GUILTY AGENTS MAY BE
MERELY TORT-FEASORS."  ID., AT 395.  THERE THE UNDERLYING CONTRACT WAS
A BAILMENT; HERE IT IS EMPLOYMENT.  TO DRAW A DISTINCTION IN EITHER THE
KEIFER CASE OR IN THIS CASE BETWEEN TORT AND CONTRACT WOULD BE TO "MAKE
APPLICATION OF A STEADILY GROWING POLICY OF GOVERNMENTAL LIABILITY
CONTINGENT UPON IRRELEVANT PROCEDURAL FACTORS.  THESE, IN OUR LAW, ARE
STILL DEEPLY ROOTED IN HISTORICAL ACCIDENTS TO WHICH THE EXPANDING
CONCEPTIONS OF PUBLIC MORALITY REGARDING GOVERNMENTAL RESPONSIBILITY
SHOULD NOT BE SUBORDINATED."  ID., AT 396. 

THIS CASE, LIKE THE KEIFER CASE, INVOLVES THE LAUNCHING OF A
GOVERNMENTAL CORPORATION INTO AN INDUSTRIAL OR BUSINESS FIELD.  IN VIEW
OF THE FEDERAL CLIMATE OF OPINION WHICH BY THAT TIME HAD GROWN UP
AROUND THE SUE-AND-BE-SUED CLAUSE, WE CANNOT BELIEVE THAT CONGRESS
INTENDED TO CONFINE IT MORE NARROWLY HERE THAN IN THE KEIFER CASE.  BUT
WE NEED NOT REST ON THAT ALONE.  CONGRESS, WHEN IT APPROVED THIS
COMPACT, ATTACHED A CONDITION THAT "NOTHING HEREIN CONTAINED SHALL BE
CONSTRUED TO AFFECT, IMPAIR, OR DIMINISH ANY RIGHT, POWER, OR
JURISDICTION OF  ...  ANY COURT  ...  OF THE UNITED STATES OVER OR IN
REGARD TO ANY NAVIGABLE WATERS OR ANY COMMERCE BETWEEN THE STATES  ...
."  WE NEED NOT STOP TO CATALOGUE ALL THE ENDS THAT MAY BE SERVED BY
THIS PROVISO.  SEE S. REP. NO. 1198, 81ST CONG., 1ST SESS.; H.R. REP.
NO. 1429, 81ST CONG., 1ST SESS.  IT IS ARGUED THAT THE PROVISO WAS
INCLUDED TO MAKE PLAIN THAT THE BONDS ISSUED BY THE AGENCY WERE TAXABLE
BY THE UNITED STATES.  WE MUST GO FURTHER, HOWEVER, TO FIND A RATIONAL
PURPOSE SINCE ANOTHER PROVISO OF THE ACT OF CONGRESS SPECIFICALLY
STATED:  "THAT ANY OBLIGATIONS ISSUED AND OUTSTANDING, INCLUDING THE
INCOME DERIVED THEREFROM, UNDER THE TERMS OF THE COMPACT OR AGREEMENT,
AND ANY AMENDMENTS THERETO, SHALL BE SUBJECT TO THE TAX LAWS OF THE
UNITED STATES."  WHATEVER MAY BE THE SEVERAL EFFECTS OF THE OTHER
PROVISO WITH WHICH WE ARE PRESENTLY CONCERNED, ONE RESULT SEEMS TO US
CLEAR.  THIS PROVISO, READ IN LIGHT OF THE SUE-AND-BE-SUED CLAUSE IN
THE COMPACT, RESERVES THE JURISDICTION OF THE FEDERAL COURTS TO ACT IN
ANY MATTER ARISING UNDER THE COMPACT OVER WHICH THEY WOULD HAVE
JURISDICTION BY VIRTUE OF THE FACT THAT THE MISSISSIPPI IS A NAVIGABLE
STREAM AND THAT INTERSTATE COMMERCE IS INVOLVED.  THERE IS NO MORE APT
ILLUSTRATION OF THE INVOLVEMENT OF THE COMMERCE POWER AND THE POWER
OVER MARITIME MATTERS THAN THE JONES ACT.  O'DONNELL V. GREAT LAKES
DREDGE & DOCK CO., 318 U.S. 36, 39-43.  THIS IS NOT ENLARGING THE
JURISDICTION OF THE FEDERAL COURTS BUT ONLY RECOGNIZING AS ONE OF ITS
APPROPRIATE APPLICATIONS THE BUSINESS ACTIVITIES OF AN AGENCY ACTIVE IN
COMMERCE AND MARITIME MATTERS. 

THE STATES WHO ARE PARTIES TO THE COMPACT BY ACCEPTING IT AND ACTING
UNDER IT ASSUME THE CONDITIONS THAT CONGRESS UNDER THE CONSTITUTION
ATTACHED.  (FN7)  SO IF THERE BE DOUBT AS TO THE MEANING OF THE SUE-AND
BE-SUED CLAUSE IN THE SETTING OF THE COMPACT PRIOR TO APPROVAL BY
CONGRESS, THE DOUBT DISSIPATES WHEN THE CONDITION ATTACHED BY CONGRESS
IS ACCEPTED AND ACTED UPON BY THE TWO STATES. 

FINALLY WE CAN FIND NO MORE REASON FOR EXCEPTING STATE OR BI-STATE
CORPORATIONS FROM "EMPLOYER" AS USED IN THE JONES ACT THAN WE COULD FOR
EXCEPTING THEM EITHER FROM THE SAFETY APPLIANCE ACT (UNITED STATES V.
CALIFORNIA, 297 U.S. 175) OR THE RAILWAY LABOR ACT (CALIFORNIA V.
TAYLOR, 353 U.S. 553).  IN THE LATTER CASE WE REVIEWED AT LENGTH
FEDERAL LEGISLATION GOVERNING EMPLOYER-EMPLOYEE RELATIONSHIPS AND SAID,
"WHEN CONGRESS WISHED TO EXCLUDE STATE EMPLOYEES, IT EXPRESSLY SO
PROVIDED."   353 U.S., AT 564.  THE JONES ACT (46 U.S.C. SEC. 688) HAS
NO EXCEPTIONS FROM THE BROAD SWEEP OF THE WORDS "ANY SEAMAN WHO SHALL
SUFFER PERSONAL INJURY IN THE COURSE OF HIS EMPLOYMENT MAY" ETC.  THE
RATIONALE OF UNITED STATES V. CALIFORNIA, SUPRA, AND CALIFORNIA V.
TAYLOR, SUPRA, MAKES IT IMPOSSIBLE FOR US TO MARK A DISTINCTION HERE
AND HOLD THAT THIS BI-STATE AGENCY IS NOT AN EMPLOYER UNDER THE JONES
ACT.  REVERSED. 

FN1  "WHEN CHISHOLM DARED TO SUE THE 'SOVEREIGN STATE' OF GEORGIA,
ALL THE STATES WERE SO INDIGNANT THAT CONGRESS MOVED WITH VEHEMENT
SPEED TO PREVENT SUBSEQUENT AFFRONTS TO THE DIGNITY OF STATES.  MORE
THAN THE DIGNITY OF A SOVEREIGN STATE WAS PROBABLY AT ISSUE, HOWEVER. 
WHEN THE ELEVENTH AMENDMENT WAS PROPOSED MANY STATES WERE IN FINANCIAL
DIFFICULTIES AND HAD DEFAULTED ON THEIR DEBTS.  THE STATES COULD
THEREFORE USE THE NEW AMENDMENT NOT ONLY IN DEFENSE OF THEORETICAL
SOVEREIGNTY BUT ALSO IN A MORE PRACTICAL WAY TO FORESTALL SUITS BY
INDIVIDUAL CREDITORS]"  IRISH AND PROTHRO, THE POLITICS OF AMERICAN
DEMOCRACY (1959), P. 123. 

FN2  "THE JUDICIAL POWER OF THE UNITED STATES SHALL NOT BE CONSTRUED
TO EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED AGAINST
ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER STATE, OR BY CITIZENS
OR SUBJECTS OF ANY FOREIGN STATE." 

FN3  "NO STATE SHALL, WITHOUT THE CONSENT OF CONGRESS,  ...  ENTER
INTO ANY AGREEMENT OR COMPACT WITH ANOTHER STATE  ...  ." 

FN4  THAT IS TRUE EVEN THOUGH THE MATTER IN DISPUTE CONCERNS A
QUESTION OF STATE LAW ON WHICH THE COURTS OR OTHER AGENCIES OF THE
STATE HAVE SPOKEN.  DYER V. SIMS, 341 U.S. 22, 30-32.  WHILE WE SHOW
DEFERENCE TO STATE LAW IN CONSTRUING A COMPACT, STATE LAW AS PRONOUNCED
IN PRIOR ADJUDICATIONS AND RULINGS IS NOT BINDING.  IBID. 

FN5  THE COURT IN HINDERLIDER V. LA PLATA CO., 304 U.S. 92, 104,
SPOKE OF TWO METHODS UNDER OUR CONSTITUTION OF SETTLING CONTROVERSIES
BETWEEN STATES.  ONE IS OUR ORIGINAL JURISDICTION DEFINED IN ART. III,
SEC. 2.  THE OTHER IS THE COMPACT:  "THE COMPACT - THE LEGISLATIVE
MEANS - ADAPTS TO OUR UNION OF SOVEREIGN STATES THE AGE-OLD TREATY
MAKING POWER OF INDEPENDENT SOVEREIGN NATIONS.  ADJUSTMENT BY COMPACT
WITHOUT A JUDICIAL OR QUASI-JUDICIAL DETERMINATION OF EXISTING RIGHTS
HAD BEEN PRACTICED IN THE COLONIES, WAS PRACTICED BY THE STATES BEFORE
THE ADOPTION OF THE CONSTITUTION, AND HAD BEEN EXTENSIVELY PRACTICED IN
THE UNITED STATES FOR NEARLY HALF A CENTURY BEFORE THIS COURT FIRST
APPLIED THE JUDICIAL MEANS IN SETTLING THE BOUNDARY DISPUTE IN RHODE
ISLAND V. MASSACHUSETTS, 12 PET. 657, 723-25." 

FN6  SEE PORT OF NEW YORK AUTHORITY, 42 STAT. 174; NEW YORK AND NEW
JERSEY TUNNEL AGREEMENT, 41 STAT. 158; KANSAS CITY WATER WORKS
AGREEMENT, 42 STAT. 1058; NEW YORK-VERMONT BRIDGE AGREEMENT, 45 STAT.
120; DELAWARE RIVER TOLL BRIDGE COMPACT, 61 STAT. 752; MENOMINEE RIVER
BRIDGE COMPACT, 45 STAT. 300. 

FN7  "HISTORICALLY THE CONSENT OF CONGRESS, AS A PREREQUISITE TO THE
VALIDITY OF AGREEMENTS BY STATES, APPEARS AS THE REPUBLICAN
TRANSFORMATION OF THE NEEDED APPROVAL BY THE CROWN.  BUT THE
CONSTITUTION PLAINLY HAD TWO VERY PRACTICAL OBJECTIVES IN VIEW IN
CONDITIONING AGREEMENT BY STATES UPON CONSENT OF CONGRESS.  FOR ONLY
CONGRESS IS THE APPROPRIATE ORGAN FOR DETERMINING WHAT ARRANGEMENTS
BETWEEN STATES MIGHT FALL WITHIN THE PROHIBITED CLASS OF 'TREATY,
ALLIANCE, OR CONFEDERATION', AND WHAT ARRANGEMENTS COME WITHIN THE
PERMISSIVE CLASS OF 'AGREEMENT OR COMPACT.'  BUT EVEN THE PERMISSIVE
AGREEMENTS MAY AFFECT THE INTERESTS OF STATES OTHER THAN THOSE PARTIES
TO THE AGREEMENT:  THE NATIONAL, AND NOT MERELY A REGIONAL, INTEREST
MAY BE INVOLVED.  THEREFORE, CONGRESS MUST EXERCISE NATIONAL
SUPERVISION THROUGH ITS POWER TO GRANT OR WITHHOLD CONSENT, OR TO GRANT
IT UNDER APPROPRIATE CONDITIONS.  THE FRAMERS THUS ASTUTELY CREATED A
MECHANISM OF LEGAL CONTROL OVER AFFAIRS THAT ARE PROJECTED BEYOND STATE
LINES AND YET MAY NOT CALL FOR, NOR BE CAPABLE OF, NATIONAL TREATMENT. 
THEY ALLOWED INTERSTATE ADJUSTMENTS BUT DULY SAFEGUARDED THE NATIONAL
INTEREST."  FRANKFURTER AND LANDIS, THE COMPACT CLAUSE OF THE
CONSTITUTION - A STUDY IN INTERSTATE ADJUSTMENTS, 34 YALE L.J. 685, 694
695. 

MR. JUSTICE BLACK, MR. JUSTICE CLARK AND MR. JUSTICE STEWART CONCUR
IN THE JUDGMENT AND OPINION OF THE COURT WITH THE UNDERSTANDING THAT WE
DO NOT REACH THE CONSTITUTIONAL QUESTION AS TO WHETHER THE ELEVENTH
AMENDMENT IMMUNIZES FROM SUIT AGENCIES CREATED BY TWO OR MORE STATES
UNDER STATE COMPACTS WHICH THE CONSTITUTION REQUIRES TO BE APPROVED BY
CONGRESS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

THE COURT, ACKNOWLEDGING THE APPLICABILITY OF THE PROVISIONS OF THE
ELEVENTH AMENDMENT TO THE TENNESSEE-MISSOURI BRIDGE COMMISSION, STATES:
"THE QUESTION HERE IS WHETHER TENNESSEE AND MISSOURI HAVE WAIVED THEIR
IMMUNITY UNDER THE FACTS OF THIS CASE."  ANTE, P. 277.  THE COURT FINDS
SUCH A WAIVER IN THE WORDS "SUE AND BE SUED" INCLUDED IN ART. I, SEC.
3, OF THE COMPACT CREATING RESPONDENT COMMISSION.  THE SUPREME COURT OF
MISSOURI HAS SAID:  "A STATUTORY PROVISION THAT SUCH A PUBLIC
CORPORATION 'MAY SUE AND BE SUED' DOES NOT AUTHORIZE A SUIT AGAINST IT
FOR NEGLIGENCE."  TODD V. CURATORS OF THE UNIVERSITY OF MISSOURI, 347
MO. 460, 465, 147 S.W.2D 1063, 1064.  THE TENNESSEE COURTS HAVE NOT
RULED ON THE SIGNIFICANCE OF THIS CLAUSE, BUT THE SUPREME COURT OF
TENNESSEE HAS BEEN EMPHATIC IN ITS HOLDING THAT WAIVERS OF SOVEREIGN
IMMUNITY FROM SUIT ARE TO BE NARROWLY CONSTRUED.  HILL V. BEELER, 199
TENN. 325, 286 S.W.2D 868.  THE COURT OF APPEALS BELOW HELD THAT IN
NEITHER MISSOURI NOR TENNESSEE WOULD THE LANGUAGE "SUE AND BE SUED"
RENDER A PUBLIC CORPORATION LIABLE FOR SUIT IN TORT.  254 F.2D 857. 
THREE TIMES DURING THIS TERM THE COURT FOLLOWED ITS SETTLED PRACTICE IN
DEALING WITH A DOUBTFUL STATE STATUTE BY DEFERRING TO INTERPRETATIONS
OF LOCAL LAW RENDERED BY THE LOWER FEDERAL COURTS.  (FN1)  WE SHOULD
NOT NOW DISREGARD THIS SETTLED PRACTICE BUT SHOULD ACCEPT THE
INTERPRETATION OF MISSOURI AND TENNESSEE LAW AS FOUND BY THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

DESPITE THE FACT THAT IT HAS BEEN AUTHORITATIVELY HELD THAT NEITHER
STATE WAIVES SOVEREIGN IMMUNITY BY THE "SUE AND BE SUED" PROVISION,
THIS COURT FINDS THAT THOSE WORDS CONSTITUTE A WAIVER BY THE STATES OF
THE IMMUNITY FROM SUIT, IN THE FEDERAL COURTS, AFFORDED THEM BY THE
ELEVENTH AMENDMENT. 

THE LEGAL CONSEQUENCES OF THE TERMS OF A COMPACT ARE NOT, AS A
GENERALIZED PROPOSITION, FOR THE ORIGINATING CONSTRUCTION OF THIS
COURT.  WHAT WAS HELD IN DYER V. SIMS, 341 U.S. 22, DOES NOT SUPPORT
SUCH A CLAIM.  THAT CASE AROSE UNDER A COMPACT AMONG EIGHT STATES TO
CONTROL POLLUTION IN THE OHIO RIVER SYSTEM.  SEVEN OF THE STATES
ASSERTED THAT UNDER THE COMPACT WEST VIRGINIA WAS OBLIGATED TO
APPROPRIATE FUNDS FOR ADMINISTRATIVE EXPENSES OF THE JOINT COMMISSION
FORMED UNDER THE COMPACT.  BY A SELF-SERVING CONSTRUCTION OF ITS DUTY
UNDER THE COMPACT, WEST VIRGINIA RESISTED THE CLAIMS OF THE OTHER
STATES TO THE COMPACT.  HERE WAS A TYPICAL CONTROVERSY AMONG STATES, A
CONTROVERSY AS TO THE UNDERTAKING OF A COMPACT AMONG STATES, FOR THE
PEACEFUL SOLUTION OF WHICH THE CONSTITUTION DESIGNED ART. III, SEC. 2. 
THE VERY NATURE OF THE CONTROVERSY MADE IT NECESSARY FOR THIS COURT TO
CONSTRUE THE TERMS OF THE COMPACT, THAT IS, THE CONTRACTUAL OBLIGATIONS
ASSUMED BY WEST VIRGINIA VIS-A-VIS THE OTHER PARTIES OF THE COMPACT. 
THE PROBLEM PRESENTED BY THIS CASE HAS NO KINSHIP WITH THAT PRESENTED
BY DYER V. SIMS.  THIS IS A SUIT BY AN INDIVIDUAL AGAINST THE STATES
OVER WHICH THE FEDERAL COURTS HAVE JURISDICTION ONLY IF THE STATES HAVE
AUTHORIZED SUCH SUITS.  BOTH STATES DENY HAVING GIVEN SUCH
AUTHORIZATION AND THE COURT OF APPEALS HAS JUSTIFIED THEIR DENIAL IN
ITS FINDING OF THEIR LAW.  SINCE A COMPACT COMES INTO BEING THROUGH AN
ACT OF CONGRESS, ITS CONSTRUCTION GIVES RISE TO A FEDERAL QUESTION. 
DELAWARE RIVER COMM'N V. COLBURN, 310 U.S. 419, 427.   BUT A FEDERAL
QUESTION DOES NOT REQUIRE A FEDERAL ANSWER BY WAY OF A BLANKET,
NATIONWIDE SUBSTANTIVE DOCTRINE WHERE ESSENTIALLY LOCAL INTERESTS ARE
AT STAKE.  SEE, E.G., BOARD OF COUNTY COMM'RS V. UNITED STATES, 308
U.S. 343.  A COMPACT IS, AFTER ALL, A CONTRACT.  ORDINARILY, IN THE
INTERPRETATION OF A CONTRACT, THE MEANING THE PARTIES ATTRIBUTE TO THE
WORDS GOVERNS THE OBLIGATIONS ASSUMED IN THE AGREEMENT.  SIMILARLY,
SINCE THESE STATES HAD THE FREEDOM TO WAIVE OR TO REFUSE TO WAIVE
IMMUNITY GRANTED BY THE ELEVENTH AMENDMENT, THE LANGUAGE THEY EMPLOYED
IN THE COMPACT, NOT MODIFIED BY CONGRESS, SHOULD BE LIMITED TO THE
LEGAL SIGNIFICANCE THAT THESE STATES HAVE PLACED UPON SUCH LANGUAGE,
NOT TO AVOID THE OBLIGATIONS THEY UNDERTOOK, BUT TO ENFORCE THE MEANING
OF CONVENTIONAL LANGUAGE USED IN THEIR LAW. 

THIS COURT, HOWEVER, FINDS THAT CONGRESS, IN GRANTING THE NECESSARY
CONSENT TO THE COMPACT, IMPOSED SUABILITY IN THE FEDERAL COURTS UPON
THE STATES AS A CONDITION TO ITS CONSENT.  NO DOUBT CONGRESS COULD HAVE
INSISTED UPON A PROVISION WAIVING IMMUNITY FROM SUIT IN THE FEDERAL
COURTS AS THE PRICE OF OBTAINING ITS CONSENT TO THE COMPACT.  THE FACT
THAT THIS COURT IN KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP., 306
U.S. 381, 389-391, INDICATED THAT GOVERNMENTAL IMMUNITY FROM SUIT HAD
FALLEN INTO DISFAVOR MAY WELL HAVE BEEN A GOOD REASON WHY CONGRESS
SHOULD HAVE DONE JUST THIS IN PASSING UPON THE TENNESSEE-MISSOURI
COMPACT.  IT IS A BAD REASON FOR THIS COURT TO WRITE IN SUCH A WAIVER
WHEN CONGRESS HAS NOT DONE SO.  SURELY THE DOCTRINE OF SOVEREIGN
IMMUNITY WAS NOT SO OBSOLETE THAT A WAIVER OF IMMUNITY DID NOT REQUIRE
A CLEAR INDICATION THAT CONGRESS HAD EXACTED A WAIVER BY THE STATES AS
THE PRICE OF CONSENT.  THE DISFAVOR WHICH WAS REFERRED TO BY THIS COURT
IN KEIFER HAS NOT ATTAINED SUCH ACCEPTANCE AS TO LEAD THIS COURT TO
DISREGARD THE STRICTNESS WITH WHICH STATES CONTINUE TO ENFORCE IT.  SEE
GREAT NORTHERN LIFE INS. CO. V. READ, 322 U.S. 47.  MOREOVER, THE
COURT'S CONCLUSION THAT CONGRESS MUST HAVE UNDERSTOOD THE "SUE AND BE
SUED" CLAUSE TO BE A WAIVER OF THE ELEVENTH AMENDMENT AND THAT
THEREFORE THEIR CONSENT MUST HAVE BEEN PREDICATED ON THAT UNDERSTANDING
FINDS NO SUPPORT IN THE LEGISLATIVE HISTORY.  (FN2) 

AS THE EVIDENCE FROM WHICH THE COURT FINDS AN IMPLIED IMPOSED
WITHDRAWAL OF THE STATES' IMMUNITY FROM SUIT IS TENUOUS, THE BASIS FOR
ITS FINDING OF AN EXPLICIT IMPOSITION OF WAIVER IS NON-EXISTENT.   SUCH
AN EXPLICIT IMPOSITION IS DEEMED TO LIE IN THE LANGUAGE IN THE ACT
WHICH STATES THAT NOTHING IN THE COMPACT "SHALL BE CONSTRUED TO AFFECT,
IMPAIR, OR DIMINISH ANY RIGHT, POWER, OR JURISDICTION OF THE UNITED
STATES OR OF ANY COURT,  ...  OVER OR IN REGARD TO ANY NAVIGABLE
WATERS, OR ANY COMMERCE BETWEEN THE STATES  ...  ."  READ AS THIS
SHOULD BE READ ON THE NATURAL UNDERSTANDING OF THE PHRASING, THERE IS
NOTHING TO INDICATE THAT THE SUBJECT OF IMMUNITY FROM SUIT WAS IN
CONTEMPLATION.  IN ADDITION, THIS CLAUSE HAS A HISTORY OF MORE THAN ONE
HUNDRED YEARS WHICH CONFIRMS AND EMPHASIZES THE PLAIN INTENDMENT OF THE
LANGUAGE. 

THE USE OF CLAUSES PRESERVING "JURISDICTION  ...  OF ANY COURT" DATES
BACK TO A COMPACT BETWEEN NEW YORK AND NEW JERSEY APPROVED BY CONGRESS
IN 1834:  "PROVIDED, THAT NOTHING THEREIN CONTAINED SHALL BE CONSTRUED
TO IMPAIR OR IN ANY MANNER AFFECT, ANY RIGHT OF JURISDICTION OF THE
UNITED STATES IN AND OVER THE ISLANDS OR WATERS WHICH FORM THE SUBJECT
OF THE SAID AGREEMENT."  (FN3) SUBSTANTIALLY THIS SAME LANGUAGE MAY BE
FOUND IN OTHER EARLY CONGRESSIONAL ACTS CONSENTING TO INTERSTATE
COMPACTS.  (FN4)  AN ALTERNATE BUT SIMILAR PROVISION REGARDING FEDERAL
JURISDICTION IS FOUND IN SOME OTHER CONGRESSIONAL CONSENTS:  "NOTHING
HEREIN CONTAINED SHALL BE CONSTRUED TO AFFECT THE RIGHT OF THE UNITED
STATES TO REGULATE COMMERCE, OR THE JURISDICTION OF THE UNITED STATES
OVER NAVIGABLE WATERS."  (FN5)  A THIRD VARIATION HAS BEEN"  "PROVIDED,
THAT NOTHING THEREIN CONTAINED SHALL BE CONSTRUED AS IMPAIRING OR IN
ANY MANNER AFFECTING ANY RIGHT OR JURISDICTION OF THE UNITED STATES IN
AND OVER THE REGION WHICH FORMS THE SUBJECT OF SAID AGREEMENT."  (FN6)
IN NOT ONE OF THE TEN CITED COMPACTS THUS APPROVED WAS THERE ANY
LANGUAGE WHICH COULD BE CONSTRUED AS A WAIVER OF THE CONSTITUTIONAL
IMMUNITY GRANTED TO STATES FROM SUITS IN THE FEDERAL COURTS.  AND YET
THE LANGUAGE BEFORE US, IN ESSENCE CONVEYING THE SAME MEANING, IS SAID
TO HAVE THAT EFFECT.  (FN7)  INDEED, THE IDENTICAL CLAUSE UPON WHICH
THE COURT TODAY RESTS ITS FINDING OF AN IMPOSED WAIVER OF THE ELEVENTH
AMENDMENT HAS APPEARED IN AT LEAST TWO PRIOR CONSENTS TO COMPACTS.  ONE
OF THESE COMPACTS CONTAINED A "SUE AND BE SUED" PROVISION, (FN8) BUT
THE OTHER DID NOT.  (FN9)  THE HISTORY OF THESE FEDERAL JURISDICTION
PROVISIONS DEMONSTRATES BEYOND PERADVENTURE THAT THE CLAUSE WAS
UNRELATED TO THE QUESTION OF WAIVER OF ELEVENTH AMENDMENT IMMUNITY. 

THE CONCLUSION THAT WHAT THE LANGUAGE IN THE ACT ALONE WOULD NOT DO
IT ACCOMPLISHES WHEN "READ IN LIGHT OF THE SUE-AND-BE-SUED CLAUSE,"
ANTE, P. 281, VIOLATES THE VERY CONGRESSIONAL LANGUAGE ON WHICH IT
RELIES.  HAD THERE BEEN NO "SUE AND BE SUED" CLAUSE IN THE COMPACT,
THIS BRIDGE COMMISSION COULD NOT HAVE BEEN SUED IN THE FEDERAL COURTS
DESPITE THE FACT THAT IT WAS OPERATING A VESSEL ON NAVIGABLE WATER AND
IN INTERSTATE COMMERCE.  THE ELEVENTH AMENDMENT WOULD NOT HAVE
PERMITTED IT.  BY FINDING THAT LANGUAGE IN THE COMPACT PERMITS THIS
SUIT, THE COURT IS CONSTRUING THE COMPACT TO "AFFECT," BY ENLARGING,
THE JURISDICTION OF THE UNITED STATES COURTS OVER ACTIVITIES CONDUCTED
IN INTERSTATE COMMERCE. 

THE CONSTITUTIONAL REQUIREMENT OF CONSENT BY CONGRESS TO A COMPACT
BETWEEN THE STATES WAS DESIGNED FOR THE PROTECTION OF NATIONAL
INTERESTS BY THE POWER TO WITHHOLD CONSENT OR TO GRANT IT ON CONDITION
OF APPROPRIATE SAFEGUARDS OF THOSE INTERESTS.  THE COMPACT MAY IMPAIR
THE COURSE OF INTERSTATE COMMERCE IN A WAY FOUND UNDESIRABLE BY
CONGRESS.  OR THE NATIONAL INTEREST MAY DERIVE FROM THE NECESSITY OF
MAINTAINING A PROPERLY BALANCED FEDERAL SYSTEM BY VETOING A COMPACT
WHICH WOULD ADVERSELY AFFECT STATES NOT PARTIES TO THE COMPACT.  TO
IMPLY FROM A CONGRESSIONAL CONSENT CHANGES IN THE LAW OF THE COMPACT
STATES OF MERELY LOCAL CONCERN, SUCH AS DISLODGING A STATE'S POLICY ON
SUABILITY FOR TORTS ATTRIBUTABLE TO THE ADMINISTRATIOON OF THE BRIDGE
(WHILE NECESSARILY LEAVING UNAFFECTED THE STATE'S SUABILITY FOR TORTS
NOT ATTRIBUTABLE TO ITS ADMINISTRATION), WOULD CONSTITUTE A COMPLETE
DISREGARD OF THE PURPOSE OF THE CONSTITUTION IN REQUIRING CONGRESSIONAL
CONSENT TO COMPACTS.  SUCH DISREGARD WOULD INTRODUCE A WHOLLY
IRRATIONAL DISHARMONY IN THE APPLICATION OF LOCAL POLICY. 

IN VIEW OF THE AUTHORITIES CITED BY THE COURT FOR THE PROPOSITION
THAT THE JONES ACT APPLIES TO THE COMMISSION, (FN10) I ASSUME THAT THE
COURT IS REFERRING SOLELY TO THE SUBSTANTIVE APPLICABILITY OF THAT
ACT.  BELIEVING AS I DO THAT THE FEDERAL COURTS HAVE NO JURISDICTION
OVER THIS SUIT, I DO NOT REACH THAT SUBSTANTIVE QUESTION. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

FN1  SIMS V. UNITED STATES, 359 U.S. 108; THE TUNGUS V. SKOVGAARD, 358
U.S. 588; UNITED PILOTS ASSN. V. HALECKI, 358 U.S. 613. 

FN2  SEE S. REP. NO. 1198, 81ST CONG., 1ST SESS.; H.R. REP. NO. 1429,
81ST CONG., 1ST SESS.; 95 CONG. REC. 14589-14590, 14982-14983.  IN
LETTERS TO THE HOUSE AND SENATE COMMITTEES CONSIDERING THE BILL
CONSENTING TO THIS TENNESSEE-MISSOURI COMPACT, ACTING SECRETARY OF
COMMERCE THOMAS C. BLAISDELL, JR., EXPRESSED HIS BELIEF THAT "THIS
PROVISION IS INTENDED TO AVOID THE APPLICATION TO THE FEDERAL
GOVERNMENT OF THE SPECIFIC PROVISION FOUND IN THE COMPACT THAT 'SUCH
BONDS SHALL BE THE NEGOTIABLE BONDS OF THE COMMISSION, THE INCOME FROM
WHICH SHALL BE TAX FREE'  ...  ."  S. REP. NO. 1198, SUPRA, AT 3; H.R.
REP. NO. 1429, SUPRA, AT 3.  TO AVOID THE POSSIBILITY THAT THE
PROVISION WAS NOT SUFFICIENTLY CLEAR, CONGRESS ADDED SPECIFIC LANGUAGE
STATING THAT THE BONDS ISSUED BY THE COMMISSION WERE TAXABLE BY THE
UNITED STATES.  63 STAT. 930. 

FN3  4 STAT. 711. 

FN4  20 STAT. 483; 21 STAT. 352 (ADDED "JURISDICTION OF ITS COURTS");
25 STAT. 553 (ADDED "JURISDICTION OF ITS COURTS"); 34 STAT. 861. 

FN5  40 STAT. 515.  SIMILAR LANGUAGE IS FOUND IN 41 STAT. 158. 

FN6  42 STAT. 180.  SEE SIMILAR LANGUAGE IN 45 STAT. 301; 45 STAT.
121. 

FN7  IN SOME COMPACTS THERE HAVE BEEN SIMILAR THOUGH NOT IDENTICAL
FEDERAL JURISDICTION CLAUSES IN THE COMPACTS THEMSELVES, ALTHOUGH THOSE
COMPACTS DID NOT CONTAIN SUABILITY PROVISIONS.  66 STAT. 74, 77-78; 68
STAT. 690, 697.  IN THE RECENTLY APPROVED COMPACT BETWEEN CALIFORNIA
AND OREGON INVOLVING THE KLAMATH RIVER BASIN, 71 STAT. 497, THE COMPACT
ITSELF CONTAINS CLAUSES RENDERING SUITS POSSIBLE AGAINST STATE AGENCIES
AND ALSO A CLAUSE RESERVING FEDERAL JURISDICTION, IN ITS TERMS SIMILAR
TO THE PROVISIONS IN PRIOR CONGRESSIONAL CONSENTS TO COMPACTS.  YET
ANOTHER PROVISION STATES THAT NOTHING IN THE COMPACT SHALL BE CONSTRUED
AS "ENLARGING, DIMINISHING OR OTHERWISE AFFECTING THE JURISDICTION OF
THE COURTS OF THE UNITED STATES."  71 STAT. 508.  IT WAS, CLEARLY
ENOUGH, NOT BELIEVED THAT THESE PROVISIONS WERE INCONSISTENT WITH EACH
OTHER.    FN8  49 STAT. 1058, 1060. 

FN9  64 STAT. 568, 571. 

FN10  SUIT IN UNITED STATES V. CALIFORNIA, 297 U.S. 175, WAS
INSTITUTED BY THE UNITED STATES, AND JURISDICTION OVER SUCH AN ACTION
IS NOT WITHIN THE PROSCRIPTION OF THE ELEVENTH AMENDMENT.  IN
CALIFORNIA V. TAYLOR, 353 U.S. 553, THE STATE INTERVENED IN AN ACTION
BROUGHT AGAINST THE NATIONAL RAILROAD ADJUSTMENT BOARD, HENCE
VOLUNTARILY SUBMITTED ITSELF TO THE JURISDICTION OF THE FEDERAL
COURTS. 
..END :









MITCHELL V. KENTUCKY FINANCE CO. 359 U.S. 290 


NO. 161.  ARGUED MARCH 3, 1959 - DECIDED APRIL 20, 1959 - 254 F.2D 8,
REVERSED. 


THE BUSINESS OF MAKING SMALL PERSONAL LOANS AND PURCHASING CONDITIONAL
SALES CONTRACTS FROM DEALERS IN FURNITURE AND APPLIANCES DOES NOT
CONSTITUTE "SALES OF  ...  SERVICES" BY A "RETAIL OR SERVICE
ESTABLISHMENT," WITHIN THE MEANING OF THE EXEMPTION PROVIDED IN SEC.
13(A)(2) OF THE FAIR LABOR STANDARDS ACT, AS AMENDED IN 1949.  PP. 290
296. 

MITCHELL, SECRETARY OF LABOR, V. KENTUCKY FINANCE CO., INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER, THE SECRETARY OF LABOR, BROUGHT SUIT TO ENJOIN
RESPONDENTS FROM VIOLATING THE OVERTIME AND RECORD-KEEPING PROVISIONS
OF THE FAIR LABOR STANDARDS ACT, 52 STAT. 1060, AS AMENDED, 29 U.S.C.
SEC. 201 ET SEQ. RESPONDENTS, TWO CLOSELY AFFILIATED SUBSIDIARIES OF A
COMMON CORPORATE PARENT, SHARE AN OFFICE IN LOUISVILLE, KENTUCKY.  THEY
ARE ENGAGED IN THE BUSINESS OF MAKING PERSONAL LOANS, IN AMOUNTS UP TO
$300, TO INDIVIDUALS, AND IN PURCHASING CONDITIONAL SALES CONTRACTS
FROM DEALERS IN FURNITURE AND APPLIANCES.  RESPONDENTS SHARE THE
SERVICES OF A COMMON MANAGER AND NINE FULL-TIME AND TWO PART-TIME
EMPLOYEES. 

BY PRETRIAL STIPULATION AND CONCESSIONS AT TRIAL, RESPONDENTS IN
EFFECT CONCEDED THAT AN INJUNCTION SHOULD ISSUE UNLESS THEIR EMPLOYEES
ARE EXEMPTED FROM THE OVERTIME AND RECORD-KEEPING PROVISIONS OF THE
STATUTE BY SEC. 13(A)(2) THEREOF, WHICH PROVIDES THAT SUCH REQUIREMENTS
SHALL NOT APPLY TO: 

"  ...  ANY EMPLOYEE EMPLOYED BY ANY RETAIL OR SERVICE ESTABLISHMENT,
MORE THAN 50 PER CENTUM OF WHICH ESTABLISHMENT'S ANNUAL DOLLAR VOLUME
OF SALES OF GOODS OR SERVICES IS MADE WITHIN THE STATE IN WHICH THE
ESTABLISHMENT IS LOCATED.  A 'RETAIL OR SERVICE ESTABLISHMENT' SHALL
MEAN AN ESTABLISHMENT 75 PER CENTUM OF WHOSE ANNUAL DOLLAR VOLUME OF
SALES OF GOODS OR SERVICES (OR OF BOTH) IS NOT FOR RESALE AND IS
RECOGNIZED AS RETAIL SALES OR SERVICES IN THE PARTICULAR INDUSTRY; ...
." 

AS CONCEDEDLY MORE THAN 50 PERCENT OF RESPONDENTS' LOAN AND DISCOUNT
BUSINESS IS WITH KENTUCKY RESIDENTS AND NONE OF IT INVOLVES "RESALE"
TRANSACTIONS, THE SOLE QUESTION INVOLVED IN THIS LITIGATION IS WHETHER
RESPONDENTS SHOULD BE CONSIDERED AS "RETAIL OR SERVICE ESTABLISHMENTS,"
ENGAGED IN THE MAKING OF "SALES OF GOODS OR SERVICES," WITHIN THE
MEANING OF SEC. 13(A)(2).  THE BURDEN IS, OF COURSE, UPON RESPONDENTS
TO ESTABLISH THAT THEY ARE ENTITLED TO THE BENEFIT OF THE SEC. 13
EXEMPTION, SINCE COVERAGE APART FROM THE EXEMPTION IS ADMITTED. 

AFTER TRIAL THE DISTRICT COURT FOUND THAT RESPONDENTS HAD NOT PROVED
THAT THEY ARE A "RETAIL OR SERVICE ESTABLISHMENT" WITHIN THE MEANING OF
SEC. 13(A)(2), AND ISSUED AN INJUNCTION RESTRAINING RESPONDENTS FROM
FURTHER VIOLATING THE ACT.  150 F. SUPP. 368.  THE COURT OF APPEALS
REVERSED.  254 F.2D 8.  WE GRANTED CERTIORARI, 358 U.S. 811, TO RESOLVE
THE CONFLICT BETWEEN THE DECISION OF THE COURT BELOW AND THAT OF THE
COURT OF APPEALS FOR THE FIRST CIRCUIT IN AETNA FINANCE CO. V.
MITCHELL, 247 F.2D 190. 

UNTIL 1949, SEC. 13(A)(2) EXEMPTED FROM THE OVERTIME AND RECORD
KEEPING PROVISIONS OF THE FAIR LABOR STANDARDS ACT "ANY EMPLOYEE
ENGAGED IN ANY RETAIL OR SERVICE ESTABLISHMENT THE GREATER PART OF
WHOSE SELLING OR SERVICING IS IN INTRASTATE COMMERCE."  THE
ADMINISTRATOR EARLY RULED THAT PERSONAL LOAN COMPANIES AND OTHER
BUSINESS ENTITIES IN WHAT MAY BROADLY BE CALLED THE "FINANCIAL
INDUSTRY" WERE NOT WITHIN THE SCOPE OF THAT EXEMPTION.  (FN1)  WHEN
CONGRESS AMENDED THE ACT IN 1949 IT PROVIDED THAT PRE-1949 RULINGS AND
INTERPRETATIONS BY THE ADMINISTRATOR SHOULD REMAIN IN EFFECT UNLESS
INCONSISTENT WITH THE STATUTE AS AMENDED.  63 STAT. 920.  THE NARROW
ISSUE BEFORE US, THEN, IS WHETHER CONGRESS IN THE 1949 AMENDMENT OF
SEC. 13(A)(2) BROADENED THE SCOPE OF THAT SECTION SO AS TO EMBRACE
PERSONAL LOAN COMPANIES. 

THE PRESENT SEC. 13(A)(2) DIFFERS FROM ITS PREDECESSOR PRIMARILY IN
THE ADDITION OF A DEFINITION OF THE TERM "RETAIL OR SERVICE
ESTABLISHMENT," SUCH AN ESTABLISHMENT BEING ONE "75 PER CENTUM OF WHOSE
ANNUAL DOLLAR VOLUME OF SALES OF GOODS OR SERVICES (OR OF BOTH) IS NOT
FOR RESALE AND IS RECOGNIZED AS RETAIL SALES OR SERVICES IN THE
PARTICULAR INDUSTRY; ...  "  RESPONDENTS ARGUE THAT THEY PLAINLY COME
WITHIN THIS DEFINITION BECAUSE (1) MORE THAN 75 PERCENT OF THEIR LOAN
AND DISCOUNT BUSINESS IS "NOT FOR RESALE," AND (2) THEIR ACTIVITIES ARE
RECOGNIZED IN THE FINANCIAL INDUSTRY AS BEING THE "RETAIL END" OF THAT
INDUSTRY.  THEY CLAIM THAT THE INTENT OF CONGRESS IN THE 1949 AMENDMENT
WAS TO PROVIDE THAT "LOCAL" BUSINESS WAS EXEMPT FROM THE OVERTIME
REQUIREMENTS OF THE STATUTE, AND THAT THEIR ACTIVITIES ARE PRECISELY
THE KIND THE SEC. 13 EXEMPTION WAS DESIGNED TO EMBRACE.   WE DO NOT
THINK THE ISSUE BEFORE US CAN BE DISPOSED OF SO SIMPLY.  THE GOVERNMENT
POINTS OUT THAT THE CONCEPT OF "SALE" IS INHERENTLY INAPPOSITE TO THE
LENDING OF MONEY AT INTEREST, AND URGES THAT BECAUSE RESPONDENTS CANNOT
PROPERLY BE SAID TO BE ENGAGED IN THE "SALE OF GOODS OR SERVICES" THE
EXEMPTION CANNOT AS TO THEM COME INTO PLAY EVEN IF THEIR ACTIVITIES ARE
RECOGNIZED AS "RETAIL" IN THE FINANCIAL INDUSTRY.  RESPONDENTS CONCEDE
THAT THEY ARE NOT ENGAGED IN THE SALE OF "GOODS," BUT INSIST THAT THEIR
ACTIVITIES DO CONSTITUTE A "SALE" OF A "SERVICE" WITHIN THE INTENDMENT
OF SEC. 13(A)(2), CHARACTERIZING THAT "SERVICE" AS CREDIT OR THE USE OF
MONEY.  (FN2) 

THIS IS NOT A CASE WHERE PERFORCE WE MUST ATTEMPT TO RESOLVE A
CONTROVERSY AS TO THE TRUE MEANING OF EQUIVOCAL STATUTORY LANGUAGE
UNAIDED BY ANY RELIABLE EXTRINSIC GUIDE TO LEGISLATIVE INTENTION.  ON
THE CONTRARY, THE DEBATES AND REPORTS IN CONGRESS WITH REFERENCE TO
THIS SECTION OF THE STATUTE ARE DETAILED AND EXPLICIT.  TO THOSE
LEGISLATIVE MATERIALS WE NOW TURN. 

THE LEGISLATIVE HISTORY OF THE 1949 AMENDMENT TO SEC. 13(A)(2)
DEMONSTRATES BEYOND DOUBT THAT CONGRESS WAS ACTING IN IMPLEMENTATION OF
A SPECIFIC AND PARTICULARIZED PURPOSE.  BEFORE 1949 THE ADMINISTRATOR,
IN INTERPRETING THE TERM "RETAIL OR SERVICE ESTABLISHMENT," THEN
NOWHERE DEFINED IN THE STATUTE, HAD, IN ADDITION TO EXCLUDING FROM THE
COVERAGE OF THE EXEMPTION PERSONAL LOAN COMPANIES AND OTHER FINANCIAL
INSTITUTIONS, RULED THAT A BUSINESS ENTERPRISE GENERALLY WOULD NOT
QUALIFY AS SUCH AN ESTABLISHMENT UNLESS 75 PERCENT OF ITS RECEIPTS WERE
DERIVED FROM THE SALE OF GOODS OR SERVICES "TO PRIVATE PERSONS TO
SATISFY THEIR PERSONAL WANTS," ON THE THEORY THAT SALES FOR BUSINESS
USE WERE "NONRETAIL."  (FN3)  THIS ADMINISTRATIVELY ANNOUNCED "BUSINESS
USE" TEST WAS GENERALLY APPROVED BY THIS COURT IN ROLAND ELECTRICAL CO.
V. WALLING, 326 U.S. 657. 

CONGRESS WAS DISSATISFIED WITH THIS CONSTRUCTION OF THE STATUTE, AND
OVER THE OBJECTION OF THE ADMINISTRATOR, WHO SOUGHT TO HAVE HIS
"BUSINESS USE" TEST LEGISLATIVELY CONFIRMED, (FN4) PASSED THE 1949
AMENDMENT TO SEC. 13(A)(2) TO DO AWAY WITH THE RULE THAT SALES TO OTHER
THAN INDIVIDUAL CONSUMERS COULD NOT QUALIFY AS RETAIL IN DECIDING
WHETHER A PARTICULAR BUSINESS ENTERPRISE WAS A "RETAIL OR SERVICE
ESTABLISHMENT," AND TO SUBSTITUTE A MORE FLEXIBLE TEST, UNDER WHICH
SELLING TRANSACTIONS WOULD QUALIFY AS RETAIL IF THEY (1) DID NOT
INVOLVE "RESALE," AND (2) WERE RECOGNIZED IN THE PARTICULAR INDUSTRY AS
RETAIL.  WE FIND NOTHING IN THE DEBATES OR REPORTS WHICH SUGGESTS THAT
CONGRESS INTENDED BY THE AMENDMENT TO BROADEN THE FIELDS OF BUSINESS
ENTERPRISE TO WHICH THE EXEMPTION WOULD APPLY.  RATHER, IT WAS TIME AND
AGAIN MADE PLAIN THAT THE AMENDMENT WAS INTENDED TO CHANGE THE PRIOR
LAW ONLY BY MAKING IT POSSIBLE FOR BUSINESS ENTERPRISES OTHERWISE
ELIGIBLE UNDER EXISTING CONCEPTS TO ACHIEVE EXEMPTION EVEN THOUGH MORE
THAN 25 PERCENT OF THEIR SALES WERE TO OTHER THAN PRIVATE INDIVIDUALS
FOR PERSONAL CONSUMPTION, PROVIDED THOSE SALES WERE NOT FOR RESALE AND
WERE RECOGNIZED IN THE FIELD OR INDUSTRY INVOLVED AS RETAIL.  (FN5)
THUS ENTERPRISES IN THE FINANCIAL FIELD, NONE OF WHICH HAD PREVIOUSLY
BEEN CONSIDERED TO QUALIFY FOR THE EXEMPTION REGARDLESS OF THE CLASS OF
PERSONS WITH WHICH THEY DEALT, AND REGARDLESS OF WHETHER THEY WERE
THOUGHT OF IN THE FINANCIAL INDUSTRY AS ENGAGED IN "RETAIL FINANCING,"
REMAINED UNAFFECTED BY THE AMENDMENT OF SEC. 13(A)(2). 

ANY RESIDUAL DOUBT ON THIS SCORE IS DISPELLED BY THE EXPLICIT AND
REPEATED STATEMENTS OF THE SPONSORS OF THE AMENDATORY LEGISLATION AND
IN THE HOUSE AND SENATE REPORTS TO THE EFFECT THAT "THE AMENDMENT DOES
NOT EXEMPT BANKS, INSURANCE COMPANIES, BUILDING AND LOAN ASSOCIATIONS,
CREDIT COMPANIES, NEWSPAPERS, TELEPHONE COMPANIES, GAS AND ELECTRIC
UTILITY COMPANIES, TELEGRAPH COMPANIES, ETC., BECAUSE THERE IS NO
CONCEPT OF RETAIL SELLING OR SERVICING IN THESE INDUSTRIES.  WHERE IT
WAS INTENDED THAT SUCH BUSINESSES HAVE AN EXEMPTION ONE WAS
SPECIFICALLY PROVIDED BY THE LAW  ...  ."  (FN6)  IT IS WELL SETTLED
THAT EXEMPTIONS FROM THE FAIR LABOR STANDARDS ACT ARE TO BE NARROWLY
CONSTRUED.  A.H. PHILLIPS, INC., V. WALLING, 324 U.S. 490, 493; SEE
ALSO POWELL V. UNITED STATES CARTRIDGE CO., 339 U.S. 497, 517.  IN THE
LIGHT OF THE ABUNDANT POINTED EVIDENCE THAT CONGRESS DID NOT INTEND
THAT BUSINESSES LIKE THOSE OF RESPONDENTS BE EXEMPTED FROM THE OVERTIME
AND RECORD-KEEPING PROVISIONS OF THE STATUTE BY SEC. 13(A)(2), WE WOULD
NOT BE JUSTIFIED IN STRAINING TO BRING RESPONDENTS' ACTIVITIES WITHIN
THE LITERAL WORDS OF THE EXEMPTION.  REVERSED. 

FN1  INTERPRETATIVE BULL.  NO. 6, 1942 WH MANUAL 326, PARAS. 29-31. 
THAT RULING HAS BEEN CARRIED OVER UNDER THE AMENDED VERSION OF SEC.
13(A)(2).  29 CFR, 1958 SUPP., SEC. 779.10. 

FN2  THE TERM "SERVICE" IS NOWHERE DEFINED IN THE FAIR LABOR
STANDARDS ACT. 

FN3  SEE INTERPRETATIVE BULL.  NO. 6, 1942 WH MANUAL 326, PARAS. 14,
18. 

FN4  THE ADMINISTRATOR SUPPORTED THE SO-CALLED LESINSKI BILL, WHICH
WOULD HAVE ADOPTED THE ADMINISTRATOR'S "BUSINESS USE" TEST IN THE
DEFINITION OF "RETAIL OR SERVICE ESTABLISHMENT." 

FN5  SEE H. CONF. REP., 95 CONG. REC. 14931:  "SEC.  13(A)(2)  ...
CLARIFIES THE EXISTING EXEMPTION BY DEFINING THE TERM 'RETAIL OR
SERVICE ESTABLISHMENT' AND STATING THE CONDITIONS UNDER WHICH THE
EXEMPTION SHALL APPLY.  THIS CLARIFICATION IS NEEDED IN ORDER TO
OBVIATE THE SWEEPING RULING OF THE ADMINISTRATOR AND THE COURTS THAT NO
SALE OF GOODS OR SERVICES FOR BUSINESS USE IS RETAIL.  SEE ROLAND
ELECTRICAL CO. V. WALLING (326 U.S. 657); ...  "; REPORT OF MAJORITY OF
SENATE CONFEREES, 95 CONG. REC. 14877:  "THE CONFERENCE AGREEMENT
EXEMPTS ESTABLISHMENTS WHICH ARE TRADITIONALLY REGARDED AS RETAIL  ...
."  SEE ALSO THE STATEMENT OF SENATOR HOLLAND, SPONSOR OF THE
LEGISLATION IN THE SENATE:  "THE ONLY SUBSTANTIAL DIFFERENCE BETWEEN
THE ADMINISTRATOR AND HIS RECOMMENDATION WHICH WOULD HAVE WRITTEN THE
"BUSINESS USE" TEST INTO THE STATUTE AND THE AMENDMENT WHICH WE PROPOSE
IS THAT WE PROPOSE TO DO AWAY WITH THIS ARTIFICIAL DISTINCTION BETWEEN
A RETAIL SALE ON THE ONE HAND AND A BUSINESS SALE ON THE OTHER  ...
."  95 CONG. REC. 12498.  FOR OTHER AUTHORITATIVE EXPRESSIONS OF THE
LEGISLATIVE INTENT IN THIS REGARD, SEE 95 CONG. REC. 11115-11116, 12492
12493, 12496, 12502, 12506, 12508. 

FN6  H.R. CONF. REP., 95 CONG. REC. 14932.  SEE ALSO REPORT OF
MAJORITY OF SENATE CONFEREES, 95 CONG. REC. 14877; STATEMENT OF SENATOR
HOLLAND, 95 CONG. REC. 12505-12506. 

RESPONDENTS URGE THAT STATEMENTS OF THIS KIND HAVE NO APPLICATION TO
THEM BECAUSE THEY ARE NOT "CREDIT COMPANIES," IN THAT SUCH TERM
PROPERLY IS TO BE RESTRICTED TO COMMERCIAL CREDIT COMPANIES.  WE AGREE
WITH THE OBSERVATION OF THE COURT OF APPEALS IN AETNA FINANCE CO. V. V.
MITCHELL, SUPRA, AT 193, THAT THIS CONTENTION IS "QUITE UNCONVINCING." 
THERE IS NOTHING WHICH INDICATES THAT CONGRESS WAS USING THE TERM
"CREDIT COMPANIES" IN ANY SPECIALIZED SENSE, AND INDEED ONE OF
RESPONDENTS' OWN EXPERT WITNESSES TESTIFIED THAT PERSONAL LOAN
COMPANIES ARE "CREDIT INSTITUTIONS."  WE THINK IT CLEAR THAT THE HOUSE
AND SENATE CONFEREES USED "CREDIT COMPANIES" TO MEAN NOTHING MORE NOR
LESS THAN COMPANIES WHICH DEAL IN CREDIT, AS RESPONDENTS CONCEDEDLY
DO. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











ROBERT C. HERD & CO., INC. V. KRAWILL MACHINERY CORP. 359 U.S. 297 


NO. 276.  ARGUED FEBRUARY 26, 1959 - DECIDED APRIL 20, 1959 - 256 F.2D
946, AFFIRMED. 


NEITHER THE PROVISIONS OF SEC. 4(5) OF THE CARRIAGE OF GOODS BY SEA
ACT NOR THE PARALLEL PROVISIONS OF AN OCEAN BILL OF LADING, LIMITING
THE LIABILITY OF AN OCEAN "CARRIER" TO A SHIPPER TO $500 PER PACKAGE OF
CARGO, APPLY TO, OR LIMIT THE LIABILITY OF, A NEGLIGENT STEVEDORE
EMPLOYED BY THE CARRIER TO LOAD CARGO ON ITS VESSEL.  PP. 298-308. 

(A)  NOTHING IN THE PROVISIONS, LEGISLATIVE HISTORY OR ENVIRONMENT OF
THE ACT, OR IN THE LIMITATION-OF-LIABILITY PROVISIONS OF THE BILL OF
LADING, INDICATES ANY INTENTION, OF CONGRESS BY THE ACT, OR OF THE
CONTRACTING PARTIES BY THE BILL OF LADING, TO LIMIT THE LIABILITY OF
NEGLIGENT AGENTS OF THE CARRIER.  PP. 301-303. 

(B)  THE DOCTRINE OF A.M. COLLINS & CO. V. PANAMA R. CO., 197 F.2D
893, IS DISAPPROVED AS BEING CONTRARY TO DECISIONS OF THIS COURT.  PP.
303-305. 

(C)  ELDER, DEMPSTER & CO., LTD., V. PATERSON, ZOCHONIS & CO., LTD.,
(1924) A.C. 522, DISTINGUISHED.  PP. 306-308. 

ROBERT C. HERD & CO., INC., V. KRAWILL MACHINERY CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE PROVISIONS OF SEC.
4(5) OF THE CARRIAGE OF GOODS BY SEA ACT (46 U.S.C. SEC. 1304(5)) OR
THE PARALLEL PROVISIONS OF AN OCEAN BILL OF LADING, LIMITING THE
LIABILITY OF AN OCEAN "CARRIER" TO A SHIPPER TO $500 PER PACKAGE OF
CARGO, ALSO APPLY TO AND LIKEWISE LIMIT THE LIABILITY OF A NEGLIGENT
STEVEDORE. 

RESPONDENTS, HAVING SOLD AND AGREED TO DELIVER CERTAIN GOODS TO A
SPANISH COMPANY, ARRANGED FOR THEIR OCEAN CARRIAGE ON THE S.S. CASTILLO
AMPUDIA FROM BALTIMORE, MARYLAND, TO VALENCIA, SPAIN.  THE GOODS,
CONSISTING OF 62 CASES, WERE TRANSPORTED FROM DETROIT BY FLATCAR TO A
POINT ON THE BALTIMORE PIER ALONGSIDE THE S.S. CASTILLO AMPUDIA AND
WERE THERE TAKEN IN CHARGE BY HER AGENT FOR LOADING AND SHIPMENT.  A
BILL OF LADING WAS PREPARED BY RESPONDENTS, ON FORMS OF THE CARRIER,
AND WAS SUBMITTED TO AND SIGNED BY AN AGENT OF THE CARRIER.  THE VALUE
OF THE GOODS WAS NOT DECLARED BY RESPONDENTS OR INSERTED IN THE BILL OF
LADING. 

PETITIONER, AN INDEPENDENT STEVEDORING COMPANY, WAS ORALLY ENGAGED BY
THE CARRIER TO LOAD THE CARGO ABOARD THE SHIP, AND WHILE ENDEAVORING TO
LOAD ONE OF THE CASES, CONTAINING A PRESS WEIGHING 19 TONS,
PETITIONER'S EMPLOYEES CAUSED IT TO FALL INTO THE HARBOR AND TO BE
EXTENSIVELY DAMAGED.  RESPONDENTS THEN BROUGHT THIS TORT ACTION IN THE
UNITED STATES DISTRICT COURT AGAINST PETITIONER TO RECOVER THEIR
DAMAGES WHICH THEY ALLEGED HAD BEEN CAUSED BY PETITIONER'S NEGLIGENCE. 
PETITIONER'S ANSWER DENIED THE ALLEGATIONS OF NEGLIGENCE, AND ASSERTED,
ALTERNATIVELY, THAT IF THE DAMAGE WAS CAUSED BY ITS NEGLIGENCE ITS
LIABILITY WAS LIMITED TO $500 BY THE LIMITATION-OF LIABILITY PROVISIONS
OF THE CARRIAGE OF GOODS BY SEA ACT (FN1) AND BY THE PARALLEL
PROVISIONS OF THE BILL OF LADING.  (FN2) 

AFTER TRIAL, THE DISTRICT COURT HELD THAT THE DAMAGE TO THE PRESS WAS
CAUSED BY PETITIONER'S NEGLIGENCE; THAT THE LIMITATION-OF-LIABILITY
PROVISIONS OF THE BILL OF LADING WERE, IN EXPRESS TERMS, APPLICABLE
ONLY TO THE CARRIER, AND DID NOT APPLY TO NOR LIMIT THE LIABILITY OF
THE STEVEDORE; (FN3) AND THAT RESPONDENTS WERE ENTITLED TO RECOVER THE
FULL AMOUNT OF THEIR DAMAGES FROM PETITIONER (145 F. SUPP. 554).  IT
ACCORDINGLY RENDERED JUDGMENT FOR RESPONDENTS IN THE AMOUNT OF
$47,992.04 (155 F. SUPP. 296).  ON APPEAL, THE COURT OF APPEALS
UNANIMOUSLY AFFIRMED ON THE QUESTION HERE PRESENTED.  256 F.2D 946.  IT
HELD THAT NEITHER THE LIMITATION-OF-LIABILITY PROVISIONS OF THE
CARRIAGE OF GOODS BY SEA ACT (FN4) (NOTE 1) NOR OF THE BILL OF LADING
(NOTE 2) WERE APPLICABLE TO, OR LIMITED THE LIABILITY OF, THE
STEVEDORING COMPANY, AND THAT IT WAS THEREFORE LIABLE FOR THE FULL
DAMAGE CAUSED BY ITS NEGLIGENCE.  THE COURT EXPRESSLY DISAGREED WITH
AND DECLINED TO FOLLOW THE MAJORITY OPINION OF THE FIFTH CIRCUIT IN
A.M. COLLINS & CO. V. PANAMA R. CO., 197 F.2D 893, SAYING THAT IT
THOUGHT THE DISSENTING OPINION IN THAT CASE PRESENTED THE CORRECT
VIEW.  THE QUESTION BEING OF IMPORTANCE TO THE SHIPPING INDUSTRY, WE
GRANTED CERTIORARI TO RESOLVE THIS CONFLICT.  358 U.S. 812. 

PETITIONER'S CONTENTIONS ARE TWOFOLD.  FIRST, IT CONTENDS THAT THE
LIABILITY-LIMITING PROVISIONS OF THE CARRIAGE OF GOODS BY SEA ACT AND
OF THE BILL OF LADING SHOULD BE CONSTRUED TO LIMIT ITS LIABILITY AS
WELL AS THAT OF THE CARRIER.  SECOND, IT CONTENDS THAT EVEN IF IT BE
HELD THAT THOSE PROVISIONS LIMIT ONLY THE LIABILITY OF THE "CARRIER,"
IT IS NEVERTHELESS PROTECTED BY THE CARRIER'S LIMITATION UNDER THE
THEORY AND HOLDING OF THE MAJORITY OPINION IN THE COLLINS CASE. 

WITH REGARD TO PETITIONER'S FIRST CONTENTION, WE LOOK FIRST TO THE
PROVISIONS, LEGISLATIVE HISTORY AND ENVIRONMENT OF THE CARRIAGE OF
GOODS BY SEA ACT, 46 U.S.C. SECS. 1300-1315, AND NEXT TO THE LIMITING
PROVISIONS OF THE BILL OF LADING, TO DETERMINE WHETHER CONGRESS BY THE
ACT, OR THE SHIPPERS AND THE CARRIER BY THE BILL OF LADING, EVIDENCED
ANY INTENTION TO LIMIT THE LIABILITY OF NEGLIGENT AGENTS OF A CARRIER. 

THE ACT IS CLEARLY PHRASED.  IT DEFINES THE TERM "CARRIER" TO INCLUDE
"THE OWNER OR THE CHARTERER WHO ENTERS INTO A CONTRACT OF CARRIAGE WITH
THE SHIPPER."  SEC. 1301(A).  IT IMPOSES PARTICULARIZED DUTIES AND
OBLIGATIONS UPON, AND GRANTS STATED IMMUNITIES TO, THE "CARRIER." 
SECS. 1302, 1303, 1304.  RESPECTING LIMITATION OF THE AMOUNT OF
LIABILITY FOR LOSS OF OR DAMAGE TO GOODS, IT SAYS THAT "NEITHER THE
CARRIER NOR THE SHIP" SHALL BE LIABLE FOR MORE THAN $500 PER PACKAGE. 
SEC. 1304(5).  IT MAKES NO REFERENCE WHATEVER TO STEVEDORES OR AGENTS. 
THE LEGISLATIVE HISTORY OF THE ACT SHOWS THAT IT WAS LIFTED ALMOST
BODILY FROM THE HAGUE RULES OF 1921, AS AMENDED BY THE BRUSSELS
CONVENTION OF 1924, 51 STAT. 233.  (FN5)  THE EFFORT OF THOSE RULES WAS
TO ESTABLISH UNIFORM OCEAN BILLS OF LADING TO GOVERN THE RIGHTS AND
LIABILITIES OF CARRIERS AND SHIPPERS INTER SE IN INTERNATIONAL TRADE. 
IBID.  THOSE RULES DO NOT ADVERT TO STEVEDORES OR AGENTS OF A CARRIER. 
THE DEBATES AND COMMITTEE REPORTS IN THE SENATE AND THE HOUSE UPON THE
BILL THAT BECAME THE CARRIAGE OF GOODS BY SEA ACT LIKEWISE DO NOT
MENTION STEVEDORES OR AGENTS.  (FN6)  THERE IS, THUS, NOTHING IN THE
LANGUAGE, THE LEGISLATIVE HISTORY OR ENVIRONMENT OF THE ACT THAT
EXPRESSLY OR IMPLIEDLY INDICATES ANY INTENTION OF CONGRESS TO REGULATE
STEVEDORES OR OTHER AGENTS OF A CARRIER, OR TO LIMIT THE AMOUNT OF
THEIR LIABILITY FOR DAMAGES CAUSED BY THEIR NEGLIGENCE.  IT MUST BE
ASSUMED THAT CONGRESS KNEW THAT GENERALLY AGENTS ARE LIABLE FOR ALL
DAMAGES CAUSED BY THEIR NEGLIGENCE.  YET CONGRESS, WHILE LIMITING THE
AMOUNT OF LIABILITY OF "THE CARRIER AND THE SHIP," DID NOT EVEN REFER
TO STEVEDORES OR AGENTS OF A CARRIER.  "WE CAN ONLY CONCLUDE THAT IF
CONGRESS HAD INTENDED TO MAKE SUCH AN INROAD ON THE RIGHTS OF CLAIMANTS
AGAINST NEGLIGENT AGENTS IT WOULD HAVE SAID SO IN UNAMBIGUOUS TERMS"
AND "IN THE ABSENCE OF A CLEAR CONGRESSIONAL POLICY TO THAT END, WE
CANNOT GO SO FAR."  BRADY V. ROOSEVELT S.S. CO., 317 U.S. 575, 581,
584. 

LOOKING TO THE LIMITATION-OF-LIABILITY PROVISIONS OF THE BILL OF
LADING, WE SEE THAT THEY, LIKE SEC. 1304(5) OF THE ACT AND ITS
LEGISLATIVE HISTORY, DO NOT ADVERT TO STEVEDORES OR AGENTS.  INSTEAD
THEY DEAL ONLY WITH THE "CARRIER'S LIABILITY" TO THE SHIPPERS.  THEY
SAY THAT "THE CARRIER'S LIABILITY, IF ANY, SHALL BE DETERMINED ON THE
BASIS OF $500 PER PACKAGE."  THERE IS, THUS, NOTHING IN THOSE
PROVISIONS TO INDICATE THAT THE CONTRACTING PARTIES INTENDED TO LIMIT
THE LIABILITY OF STEVEDORES OR OTHER AGENTS OF THE CARRIER FOR DAMAGES
CAUSED BY THEIR NEGLIGENCE.  IF SUCH HAD BEEN A PURPOSE OF THE
CONTRACTING PARTIES IT MUST BE PRESUMED THAT THEY WOULD IN SOME WAY
HAVE EXPRESSED IT IN THE CONTRACT.  SINCE THEY DID NOT DO SO, IT
FOLLOWS THAT THE PROVISIONS OF THE BILL OF LADING DID "NOT CUT OFF
RESPONDENT'S REMEDY AGAINST THE AGENT THAT DID THE WRONGFUL ACT." 
SLOAN SHIPYARDS CORP.  V. EMERGENCY FLEET CORP., 258 U.S. 549, 568. 

WE THEREFORE CONCLUDE THAT THERE IS NOTHING IN THE PROVISIONS,
LEGISLATIVE HISTORY AND ENVIRONMENT OF THE ACT, OR IN THE LIMITATION-OF
LIABILITY PROVISIONS OF THE BILL OF LADING, TO INDICATE ANY INTENTION,
OF CONGRESS BY THE ACT, OR OF THE CONTRACTING PARTIES BY THE BILL OF
LADING, TO LIMIT THE LIABILITY OF NEGLIGENT AGENTS OF THE CARRIER. 

WE NOW TURN TO PETITIONER'S SECOND CONTENTION THAT EVEN IF, AS WE
HOLD, THE ACT AND THE BILL OF LADING GRANTED LIMITATION OF LIABILITY
ONLY TO THE "CARRIER," PETITIONER IS NEVERTHELESS PROTECTED BY THE
CARRIER'S LIMITATION UNDER THE THEORY AND HOLDING OF THE MAJORITY
OPINION IN THE COLLINS CASE.  THE PREMISE OF THE MAJORITY OPINION IN
THAT CASE IS THAT ALL AGENTS OF THE CARRIER WHO PERFORM ANY PART OF THE
WORK UNDERTAKEN BY THE CARRIER IN THE CONTRACT OF CARRIAGE, EVIDENCED
BY THE BILL OF LADING, ARE, BY REASON OF THAT FACT ALONE, PROTECTED BY
THE PROVISIONS OF THE CONTRACT LIMITING THE LIABILITY OF THE CARRIER,
THOUGH SUCH AGENTS ARE NOT PARTIES TO NOR EXPRESS BENEFICIARIES OF THE
CONTRACT.  APPLYING THAT THEORY IN ACCORDINGLY LIMITING THE LIABILITY
OF A NEGLIGENT STEVEDORE, THE MAJORITY SAID: 

"A STEVEDORE SO UNLOADING, IN EVERY PRACTICAL SENSE, DOES SO BY
VIRTUE OF THE BILL OF LADING AND, THOUGH NOT STRICTLY SPEAKING A PARTY
THERETO, IS, WHILE LIABLE AS AN AGENT FOR ITS OWN NEGLIGENCE, AT THE
SAME TIME ENTITLED TO CLAIM THE LIMITATION OF LIABILITY PROVIDED BY THE
BILL OF LADING TO THE FURTHERANCE OF THE TERMS OF WHICH ITS OPERATIONS
ARE DIRECTED."  197 F.2D, AT 896. 

WE ARE UNABLE TO AGREE WITH THAT CONCLUSION, FOR WE THINK IT RUNS
COUNTER TO A LONG-SETTLED LINE OF DECISIONS OF THIS COURT.  FROM ITS
EARLY HISTORY THIS COURT HAS CONSISTENTLY HELD THAT AN AGENT IS LIABLE
FOR ALL DAMAGES CAUSED BY HIS NEGLIGENCE, UNLESS EXONERATED THEREFROM,
IN WHOLE OR IN PART, BY A STATUTE OR A VALID CONTRACT BINDING ON THE
PERSON DAMAGED.  IN OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738,
843, IT WAS SAID THAT AN AGENT "IS RESPONSIBLE FOR HIS OWN ACT, TO THE
FULL EXTENT OF THE INJURY CAUSED THEREBY."  IN REID V. FARGO, 241 U.S.
544, THIS COURT HELD, ON FACTS VERY SIMILAR TO THOSE HERE, THAT, THOUGH
THE CARRIER'S LIABILITY WAS LIMITED BY THE BILL OF LADING TO $100, THE
NEGLIGENT AGENT, A STEVEDORING COMPANY, WAS LIABLE TO THE SHIPPER FOR
THE FULL AMOUNT OF DAMAGE CAUSED BY ITS NEGLIGENCE.  (FN7)  IN SLOAN
SHIPYARDS CORP. V. EMERGENCY FLEET CORP., 258 U.S., AT 567, IT WAS SAID
THAT AN "AGENT, BECAUSE HE IS AGENT, DOES NOT CEASE TO BE ANSWERABLE
FOR HIS ACTS."  IN BRADY V. ROOSEVELT S.S. CO., 317 U.S., AT 580-581,
THIS COURT SAID THAT "THE LIABILITY OF AN AGENT FOR HIS OWN NEGLIGENCE
HAS LONG BEEN EMBEDDED IN THE LAW," THAT "WITHDRAWAL OF THE RIGHT TO
SUE THE AGENT FOR HIS TORTS WOULD RESULT AT TIMES IN A SUBSTANTIAL
DILUTION OF THE RIGHTS OF CLAIMANTS," AND THAT WITHDRAWAL OF THAT RIGHT
WOULD BE "SUCH A BASIC CHANGE IN ONE OF THE FUNDAMENTALS OF THE LAW OF
AGENCY AS SHOULD HARDLY BE LEFT TO CONJECTURE."  THIS COURT HAS SEVERAL
TIMES HELD THAT AN AGENT'S ONLY SHIELD FROM LIABILITY "FOR CONDUCT
HARMFUL TO THE PLAINTIFF  ...  IS A CONSTITUTIONAL RULE OF LAW THAT
EXONERATES HIM."  SLOAN SHIPYARDS CORP. V. EMERGENCY FLEET CORP., 258
U.S., AT 567; BRADY V. ROOSEVELT S.S. CO., 317 U.S., AT 584.  ANY SUCH
RULE OF LAW, BEING IN DEROGATION OF THE COMMON LAW, MUST BE STRICTLY
CONSTRUED, FOR "NO STATUTE IS TO BE CONSTRUED AS ALTERING THE COMMON
LAW, FARTHER THAN ITS WORDS IMPORT.  IT IS NOT TO BE CONSTRUED AS
MAKING ANY INNOVATION UPON THE COMMON LAW WHICH IT DOES NOT FAIRLY
EXPRESS."  SHAW V. RAILROAD CO., 101 U.S. 557, 565; SEE TEXAS & PACIFIC
R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, 437.  SIMILARLY,
CONTRACTS PURPORTING TO GRANT IMMUNITY FROM, OR LIMITATION OF,
LIABILITY MUST BE STRICTLY CONSTRUED AND LIMITED TO INTENDED
BENEFICIARIES, FOR THEY "ARE NOT TO BE APPLIED TO ALTER FAMILIAR RULES
VISITING LIABILITY UPON A TORTFEASOR FOR THE CONSEQUENCES OF HIS
NEGLIGENCE, UNLESS THE CLARITY OF THE LANGUAGE USED EXPRESSES SUCH TO
BE THE UNDERSTANDING OF THE CONTRACTING PARTIES."   BOSTON METALS CO.
V. THE WINDING GULF, 349 U.S. 122, 123-124 (CONCURRING OPINION). 

THE HOLDING OF THE MAJORITY IN COLLINS THAT THE LIABILITY OF A
NEGLIGENT AGENT OF A CARRIER, THOUGH NOT LIMITED BY ANY STATUTE OR
CONTRACT, IS NEVERTHELESS LIMITED BY AND TO THE EXTENT OF THE
LIMITATION GRANTED BY THE SHIPPER TO THE CARRIER IN THE BILL OF LADING,
SIMPLY BECAUSE THE AGENT IS PERFORMING SOME PART OF THE WORK THEREBY
UNDERTAKEN BY THE CARRIER, IS CLEARLY CONTRARY TO THE ABOVE-CITED
DECISIONS OF THIS COURT.  (FN8) 

PETITIONER CLAIMS THAT ITS POSITION IS SUPPORTED BY THE DECISION OF
THE HOUSE OF LORDS IN ELDER, DEMPSTER & CO., LTD., V. PATERSON,
ZOCHONIS & CO., LTD., (1924) A.C. 522, 18 LL. L. REP. 319.  THERE,
ELDER, DEMPSTER & CO. HAD CHARTERED A SHIP, ON TIME CHARTER, FROM THE
SHIPOWNERS.  THE PLAINTIFF COMPANY SHIPPED A NUMBER OF CASKS OF PALM
OIL BY THAT SHIP FROM WEST AFRICAN PORTS TO ENGLAND.  THE CASKS WERE
CRUSHED BY OTHER CARGO NEGLIGENTLY LAID OVER THEM, AND A LARGE PART OF
THE OIL WAS LOST.  THE BILL OF LADING CONTAINED A CLAUSE WHICH, SO FAR
AS HERE PERTINENT, PROVIDED THAT "THE SHIPOWNERS  ...  SHALL NOT BE
LIABLE  ...  FOR  ...  ANY DAMAGE ARISING FROM  ...  STOWAGE  ...  ."
THE PLAINTIFF COMPANY SUED BOTH THE CHARTERER AND THE SHIPOWNERS.  THE
PRINCIPAL QUESTION WAS WHETHER THE DAMAGE WAS CAUSED BY UNSEAWORTHINESS
(WHICH WAS NOT WITHIN THE EXEMPTION CLAUSE) OR BY BAD STOWAGE (WHICH
WAS WITHIN THAT CLAUSE).  THE HOUSE OF LORDS DECIDED THAT THE LOSS WAS
DUE TO BAD STOWAGE AND HELD, BUT FOR DIFFERING REASONS, THAT THE
EXEMPTION CLAUSE APPLIED TO AND PROTECTED BOTH THE CHARTERER AND THE
SHIPOWNERS. 

A CAREFUL READING OF THE SEVERAL LENGTHY OPINIONS OF THEIR LORDSHIPS
IN THAT CASE DISCLOSES THAT THE QUESTION WHETHER A PROVISION IN THE
BILL OF LADING LIMITING THE LIABILITY OF THE CARRIER LIKEWISE LIMITS
THE LIABILITY OF ITS NEGLIGENT AGENT, THOUGH THE AGENT IS NEITHER A
PARTY TO NOR AN EXPRESS BENEFICIARY OF THE BILL OF LADING, WAS NOT
INVOLVED IN OR DECIDED BY THAT CASE.  NOR HAS ANY ENGLISH CASE EVER
HELD THAT A BILL OF LADING THAT EXPRESSLY LIMITS THE LIABILITY OF ONLY
THE CARRIER NEVERTHELESS APPLIES TO AND LIMITS THE LIABILITY OF ITS
NEGLIGENT AGENT.  SEE SCRUTTON, CHARTERPARTIES (16TH ED. 1955), 286
287, NOTE (G).  IT IS TRUE THAT IN GILBERT STOKES & KERR, PROP., LTD.,
V. DALGETY & CO., LTD., 81 LL. L. REP. 337 (1948), AND WATERS TRADING
CO., LTD., V. DALGETY & CO., LTD., (1951) 2 LL. L. REP. 385, THE
SUPREME COURT OF NEW SOUTH WALES HELD THAT STEVEDORES, WHO NEGLIGENTLY
PERFORMED A PART OF THE WORK UNDERTAKEN BY THE CARRIER IN THE BILL OF
LADING, WERE ENTITLED TO THE LIMITATION OF LIABILITY GIVEN TO THE
CARRIER BY THE LIMITING PROVISIONS OF THE BILL OF LADING, THOUGH THE
STEVEDORES WERE NEITHER PARTIES TO NOR EXPRESS BENEFICIARIES OF THE
BILL OF LADING.  HOWEVER, IN WILSON V. DARLING ISLAND STEVEDORING &
LIGHTERAGE CO., LTD., (1956) 1 LL. L. REP. 346, (1956) ARGUS LAW REP.
311, 29 AUSTRAL.  L.J. 740 - AN APPEAL INVOLVING FACTS
INDISTINGUISHABLE FROM THOSE INVOLVED IN THE TWO NEW SOUTH WALES CASES,
WHICH WAS PROSECUTED FOR THE AVOWED PURPOSE OF CHALLENGING THE
CORRECTNESS OF THOSE DECISIONS - THE HIGH COURT OF AUSTRALIA, AFTER
EXTENSIVELY REVIEWING THE ELDER, DEMPSTER CASE AND MANY OTHER ENGLISH
DECISIONS, FOUND THAT THERE WAS NO ENGLISH CASE THAT SUPPORTED THE TWO
NEW SOUTH WALES DECISIONS MENTIONED, AND IT HELD THAT THEY WERE WRONGLY
DECIDED AND OVERRULED THEM, SAYING: 

"THE STEVEDORE IS A COMPLETE STRANGER TO THE CONTRACT OF CARRIAGE,
AND IT IS NO CONCERN OF HIS WHETHER THERE IS A BILL OF LADING OR NOT,
OR, IF THERE IS, WHAT ARE ITS TERMS.  HE IS ENGAGED BY THE SHIPOWNER
AND BY NOBODY ELSE, AND THE TERMS ON WHICH HE HANDLES THE GOODS ARE TO
BE FOUND IN HIS CONTRACT WITH THE SHIPOWNER AND NOWHERE ELSE.  THE
SHIPOWNER HAS NO AUTHORITY WHATEVER TO BIND THE SHIPPER OR CONSIGNEE OF
CARGO BY CONTRACT WITH THE STEVEDORE, AND THERE IS, IN MY OPINION, NO
PRINCIPLE OF LAW - DEDUCIBLE FROM THE ELDER DEMPSTER CASE OR FROM ANY
OTHER CASE - WHICH COMPELS THE INFERENCE OF ANY CONTRACT BETWEEN THE
SHIPPER OR CONSIGNEE AND THE STEVEDORE.  IF THE STEVEDORE NEGLIGENTLY
SOAKS CARGO WITH WATER AND RUINS IT, I CAN FIND NEITHER RULE OF LAW NOR
CONTRACT TO SAVE HIM FROM THE NORMAL CONSEQUENCES OF HIS TORT." 
OPINION OF FULLAGER, J., 29 AUSTRAL.  L.J., AT 751. 

UNDER THE COMMON LAW AS DECLARED BY THIS COURT, PETITIONER WAS LIABLE
FOR ALL DAMAGES CAUSED BY ITS NEGLIGENCE UNLESS EXONERATED THEREFROM,
IN WHOLE OR IN PART, BY A CONSTUTIONAL RULE OF LAW.  NO STATUTE HAS
LIMITED ITS LIABILITY, AND IT WAS NOT A PARTY TO NOR A BENEFICIARY OF
THE CONTRACT OF CARRIAGE BETWEEN THE SHIPPER AND THE CARRIER, AND HENCE
ITS LIABILITY WAS NOT LIMITED BY THAT CONTRACT.  IT FOLLOWS THAT
PETITIONER'S COMMON-LAW LIABILITY FOR DAMAGES CAUSED BY ITS NEGLIGENCE
WAS IN NO WAY LIMITED, AND THE JUDGMENT BELOW SO HOLDING WAS CORRECT
AND MUST BE AFFIRMED. 

FN1  THE LIMITATION-OF-LIABILITY PROVISIONS OF THE CARRIAGE OF GOODS
BY SEA ACT APPEAR IN 46 U.S.C. SEC. 1304(5), WHICH, SO FAR AS
PERTINENT, PROVIDES: 

(5)  "NEITHER THE CARRIER NOR THE SHIP SHALL IN ANY EVENT BE OR
BECOME LIABLE FOR ANY LOSS OR DAMAGE TO OR IN CONNECTION WITH THE
TRANSPORTATION OF GOODS IN AN AMOUNT EXCEEDING $500 PER PACKAGE LAWFUL
MONEY OF THE UNITED STATES  ...  UNLESS THE NATURE AND VALUE OF SUCH
GOODS HAVE BEEN DECLARED BY THE SHIPPER BEFORE SHIPMENT AND INSERTED IN
THE BILL OF LADING." 

FN2  THE PARALLEL LIMITATION-OF-LIABILITY PROVISIONS CONTAINED IN THE
BILL OF LADING ARE FOUND IN SECS. 30 AND 37 THEREOF WHICH, SO FAR AS
PERTINENT, PROVIDE: 

"30.  IN CONSIDERATION OF A CHOICE OF FREIGHT RATES HAVING BEEN
OFFERED TO THE SHIPPER BY THE CARRIER, IT IS AGREED THAT IN CASE OF
LOSS OF, OR DAMAGE TO  ...  GOODS OF AN ACTUAL VALUE EXCEEDING $500
...  PER PACKAGE  ...  THE VALUE OF SUCH GOODS, SHALL BE DEEMED TO BE
$500 PER PACKAGE  ... AND THE CARRIER'S LIABILITY, IF ANY, SHALL BE
DETERMINED ON THE BASIS OF A VALUE OF $500 PER PACKAGE  ...  UNLESS THE
NATURE OF SUCH GOODS AND A VALUE HIGHER THAN $500 PER PACKAGE  ...
SHALL HAVE BEEN DECLARED IN WRITING BY THE SHIPPER UPON DELIVERY TO THE
CARRIER AND NOTED ON THE FACE HEREOF AND UNLESS PAYMENT OF THE EXTRA
FREIGHT CHARGE INCIDENT THERETO SHALL HAVE BEEN MADE OR PROMISED  ...
, IN WHICH CASE SUCH DECLARED VALUE, OR THE ACTUAL VALUE IF LESS, SHALL
BE THE BASIS FOR COMPUTING DAMAGES AND ANY PARTIAL LOSS OR DAMAGE SHALL
BE ADJUSTED PRO RATA  ...  ." 

"37.  THIS BILL OF LADING SHALL HAVE EFFECT SUBJECT TO THE CARRIAGE
OF GOODS BY SEA ACT OF THE U.S.A. AND THE CARRIER AND THE SHIP SHALL BE
ENTITLED TO ALL OF THE RIGHTS AND IMMUNITIES SET FORTH IN SAID ACT." 

FN3  46 U.S.C. SEC. 1301(E) PROVIDES:  "THE TERM 'CARRIAGE OF GOODS'
COVERS THE PERIOD FROM THE TIME WHEN THE GOODS ARE LOADED ON TO THE
TIME WHEN THEY ARE DISCHARGED FROM THE SHIP."  THE DISTRICT JUDGE WAS
OF THE VIEW THAT THE CASUALTY OCCURRED BEFORE THE PRESS HAD BEEN
"LOADED ON" THE SHIP, AND THAT THEREFORE THE CARRIAGE OF GOODS BY SEA
ACT WAS NOT APPLICABLE BECAUSE ITS EFFECTIVE PERIOD HAD NOT BEGUN. 

FN4  THE COURT HELD THAT INASMUCH AS NOTHING IN THE ACT PURPORTS TO
LIMIT THE LIABILITY OF A STEVEDORE, THERE WAS NO NEED TO REVIEW THE
HOLDING OF THE DISTRICT COURT THAT ITS EFFECTIVE PERIOD HAD NOT BEGUN. 
SEE NOTE 3. 

FN5  THE HAGUE RULES AS AMENDED BY THE BRUSSELS CONVENTION WERE, IN
TURN, BASED IN PART UPON THE PIONEERING HARTER ACT OF 1893, 27 STAT.
445, 46 U.S.C. SECS. 190-196.  SEE H.R. REP. NO. 2218, 74TH CONG., 2D
SESS. 7. 

FN6  S. REP. NO. 742, 74TH CONG., 1ST SESS.; H.R. REP. NO. 2218, 74TH
CONG., 2D SESS. 

FN7  THOUGH THE REID CASE INVOLVED VERY SIMILAR FACTS, WE DO NOT
CONSIDER THAT IT ALONE IS DISPOSITIVE OF THIS CASE BECAUSE IT DOES NOT
CLEARLY ENOUGH APPEAR THAT THE NEGLIGENT STEVEDORE SPECIFICALLY RAISED,
OR THAT THIS COURT ACTUALLY DECIDED, THE QUESTION WHETHER THE NEGLIGENT
STEVEDORE WAS ENTITLED TO INVOKE THE LIMITATION OF LIABILITY GIVEN BY
THE SHIPPER TO THE CARRIER IN THE BILL OF LADING.  HOWEVER, IT WOULD
SEEM THAT THERE IS SOME BASIS FOR RESPONDENTS' ARGUMENT THAT THE
MEMBERS OF THE BAR UNDERSTOOD THAT CASE TO HOLD THAT THE STEVEDORE WAS
NOT SO ENTITLED, FOR THAT PRINCIPLE DOES NOT APPEAR TO HAVE BEEN
CHALLENGED IN ANY REPORTED AMERICAN OPINION DURING THE 36 YEARS BETWEEN
THE DECISION OF THE REID CASE IN 1916 AND THE DECISION OF THE COLLINS
CASE IN 1952. 

FN8  APART FROM THE DISAPPROVING OPINIONS OF THE DISTRICT COURT (145
F. SUPP. 554) AND OF THE COURT OF APPEALS (256 F.2D 946) IN THIS CASE,
THE COLLINS CASE HAS BEEN CITED THREE TIMES IN THE PRESENT CONTEXT,
TWICE APPROVINGLY AND ONCE DISAPPROVINGLY, AND SEVEN TIMES IN SOMEWHAT
DIFFERENT CONTEXTS. 

IT WAS FIRST CITED APPROVINGLY IN FORD MOTOR CO. V. JARKA CORP., 134
N.Y.S.2D 52 (MUN.  CT. OF NEW YORK CITY), WHERE THE COURT, RELYING ON
COLLINS AND TWO NEW SOUTH WALES CASES, WATERS TRADING CO., LTD., V.
DALGETY & CO., LTD., (1951 2 LL. L. REP. 385, AND GILBERT STOKES &
KERR, PROP., LTD., V. DALGETY & CO., LTD., 81 LL. L. REP. 337, HELD
THAT A COVENANT IN A BILL OF LADING LIMITING THE LIABILITY OF THE
CARRIER TO $500 PER PACKAGE LIKEWISE LIMITED THE LIABILITY OF A
NEGLIGENT STEVEDORING COMPANY, WHICH WAS NOT A PARTY TO NOR AN EXPRESS
BENEFICIARY OF THE BILL OF LADING.  HOWEVER THE TWO NEW SOUTH WALES
CASES RELIED ON BY THE COURT HAVE RECENTLY BEEN OVERRULED BY THE HIGH
COURT OF AUSTRALIA IN WILSON V. DARLING ISLAND STEVEDORING & LIGHTERAGE
CO., LTD., (1956) 1 LL. L. REP. 346, (1956) ARGUS LAW REP. 311, 29
AUSTRAL.  L.J. 740. 

IT WAS NEXT CITED APPROVINGLY IN AUTOBUSES MODERNOS, S.A., V. THE
FEDERAL MARINER, 125 F. SUPP. 780 (D.C.E.D. PA.).  THE COURT HELD,
CITING COLLINS, THAT A STEVEDORING COMPANY WHOSE NEGLIGENCE IN LOADING
CARGO JOINED WITH THAT OF THE CARRIER TO CAUSE DAMAGE TO THE CARGO WAS
ENTITLED TO THE BENEFITS OF THE $500 LIMITATION GIVEN TO THE CARRIER IN
THE BILL OF LADING. 

IT WAS CITED DISAPPROVINGLY IN INTERNATIONAL MILLING CO. V. THE
PERSEUS, (1958) A.M.C. 526 (D.C.E.D. MICH.).  THE COURT HELD THAT THE
NEGLIGENT MASTER OF A SHIP WAS NOT ENTITLED TO INVOKE THE LIMITATION OF
LIABILITY GIVEN BY THE SHIPPER TO THE CARRIER IN THE CONTRACT OF
CARRIAGE, SAYING THAT IT WAS "UNABLE TO AGREE WITH THE REASONING OF THE
MAJORITY OF THE COURT IN THE COLLINS CASE."  (1958) A.M.C., AT 529. 

THE OPINIONS IN WHICH THE COLLINS CASE HAS BEEN CITED IN DIFFERENT
CONTEXTS ARE UNITED STATES V. THE SOUTH STAR, 210 F.2D 44 (C.A.2D
CIR.); J.B. EFFENSON CO. V. THREE BAYS CORP., 238 F.2D 611 (C.A. 5TH
CIR.); TWENTIETH CENTURY DELIVERY SERVICE, INC., V. ST. PAUL FIRE &
MARINE INS. CO., 242 F.2D 292 (C.A. 9TH CIR.); VAN CAMP SEA FOOD CO. V.
PACIFIC-ATLANTIC S.S. CO., 122 F. SUPP. 163 (D.C.E.D. PA.); CHUTTER V.
KLM ROYAL DUTCH AIRLINES, 132 F. SUPP. 611 (D.C.S.D.N.Y.); NATIONAL
FEDERATION OF COFFEE GROWERS OF COLOMBIA V. ISBRANDTSEN CO., (1957)
A.M.C. 1571 (SUP. CT. N.Y.); BERGER V. 34TH STREET GARAGE, 3 N.Y.2D
701, 148 N.E.2D 883. 
..END :







KOLLER V. UNITED STATES 359 U.S. 309 


NO. 362.  ARGUED MARCH 26, 30, 1959 - DECIDED APRIL 20, 1959 - 255 F.2D
865, AFFIRMED. 


A SUIT FOR DAMAGES UNDER SEC. 26(B)(1) OF THE SURPLUS PROPERTY ACT IS
NOT A SUIT TO ENFORCE A CIVIL FINE, PENALTY OR FORFEITURE AND,
THEREFORE, IS NOT SUBJECT TO THE FIVE-YEAR LIMITATION OF 28 U.S.C. SEC.
2462.  REX TRAILER CO. V. UNITED STATES, 350 U.S. 148. 

KOLLER ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  REX TRAILER CO. V. UNITED STATES, 350 U.S.
148 (1956). 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

I DO NOT AGREE THAT DISPOSITION OF THIS CASE IS CONTROLLED BY THE
DECISION IN REX TRAILER CO. V. UNITED STATES, 350 U.S. 148.  BELIEVING
THAT SEC. 26(B)(1) OF THE SURPLUS PROPERTY ACT OF 1944, 40 U.S.C. SEC.
489(B)(1), IMPOSES A CIVIL PENALTY, AND THAT AN ACTION THEREUNDER IS
THEREFORE SUBJECT TO THE FIVE-YEAR LIMITATION PROVIDED IN 28 U.S.C.
SEC. 2462, I WOULD REVERSE.  CF. UNITED STATES EX REL. MARCUS V. HESS,
317 U.S. 537; ERIE BASIN METAL PRODUCTS, INC., V. UNITED STATES, 150 F.
SUPP. 561 (CT. CL.).  SEE PRIEBE & SONS V. UNITED STATES, 332 U.S.
407. 
..END :



















DULUTH, SOUTH SHORE & ATLANTIC RAILROAD CO. V. MICHIGAN CORPORATION AND
SECURITIES COMMISSION 359 U.S. 310 


NO. 712.  DECIDED APRIL 20, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  353 MICH. 636, 92 N.W.2D 22. 


DULUTH, SOUTH SHORE & ATLANTIC RAILROAD CO. V. MICHIGAN CORPORATION AND
SECURITIES COMMISSION ET AL.

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR
CERTIORARI, CERTIORARI IS DENIED. 
..END :














WHYTE V. COAST CITIES COACHES 359 U.S. 310 


NO. 747.  DECIDED APRIL 20, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


WHYTE V. COAST CITIES COACHES, INC., ET AL. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BRAEBURN SECURITIES CORP. V. SMITH 359 U.S. 311 


NO. 718.  DECIDED APRIL 20, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  15 ILL. 2D 55, 153
N.E.2D 806. 


BRAEBURN SECURITIES CORP. V. SMITH, AUDITOR OF PUBLIC ACCOUNTS OF
ILLINOIS, ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















BURKE V. BENNETT 359 U.S. 311 


NO. 623, MISC.  DECIDED APRIL 20, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


BURKE V. BENNETT, WARDEN. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 
..END :

















OHIO, IAUS V. CARLTON 359 U.S. 312 


NO. 726.  DECIDED APRIL 20, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  168 OHIO ST. 279, 154 N.E.2D 150. 


OHIO EX REL. IAUS V. CARLTON ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














MCCANN V. NEW YORK 359 U.S. 312 


NO. 636, MISC.  DECIDED APRIL 20, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  3 N.Y.2D 797, 166 N.Y.S.2D 1. 


MCCANN V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 
..END :

















FORE V. TOTH 359 U.S. 313 


NO. 740.  DECIDED APRIL 20, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  168 OHIO ST. 363, 155 N.E.2D 194. 


FORE V. TOTH. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR
CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













RILEY V. NEW JERSEY 359 U.S. 313 


NO. 659, MISC.  DECIDED APRIL 20, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 28 N.J. 188, 145 A.2D 601. 


RILEY V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 
..END :

















KLOR'S, INC. V. BROADWAY-HALE STORES, INC. 359 U.S. 207 


NO. 76.  ARGUED FEBRUARY 25-26, 1959 - DECIDED APRIL 6, 1959 - 255 F.2D
214, REVERSED AND CAUSE REMANDED. 


PETITIONER, WHICH OPERATES A RETAIL STORE SELLING RADIOS, TELEVISION
SETS, REFRIGERATORS AND OTHER HOUSEHOLD APPLIANCES, BROUGHT THIS ACTION
FOR TREBLE DAMAGES UNDER SEC. 4 OF THE CLAYTON ACT AGAINST RESPONDENTS,
A CHAIN OF DEPARTMENT STORES AND 10 NATIONAL MANUFACTURERS AND THEIR
DISTRIBUTORS, ALLEGING THAT THE MANUFACTURERS AND DISTRIBUTORS
CONSPIRED AMONG THEMSELVES AND WITH THE CHAIN OF DEPARTMENT STORES
EITHER NOT TO SELL TO PETITIONER OR TO DO SO ONLY AT DISCRIMINATORY
PRICES AND HIGHLY UNFAVORABLE TERMS, IN VIOLATION OF SECS. 1 AND 2 OF
THE SHERMAN ACT, AND THAT THIS HAD SERIOUSLY DAMAGED PETITIONER. 
RESPONDENTS DID NOT DENY THESE ALLEGATIONS BUT MOVED FOR SUMMARY
JUDGMENT AND DISMISSAL OF THE COMPLAINT FOR FAILURE TO STATE A CAUSE OF
ACTION.  THEY FILED AFFIDAVITS THAT THERE WERE HUNDREDS OF OTHER
RETAILERS SELLING THE SAME AND COMPETING APPLIANCES IN THE SAME
COMMUNITY AND CONTENDED THAT THE CONTROVERSY WAS A "PURELY PRIVATE
QUARREL" BETWEEN PETITIONER AND THE CHAIN OF DEPARTMENT STORES, WHICH
DID NOT AMOUNT TO A "PUBLIC WRONG" PROSCRIBED BY THE SHERMAN ACT. 
HELD:  PETITIONER'S ALLEGATIONS CLEARLY SHOWED A GROUP BOYCOTT, WHICH
IS FORBIDDEN BY THE SHERMAN ACT, AND RESPONDENTS' AFFIDAVITS PROVIDED
NO DEFENSE TO THE CHARGES.  PP. 208-214. 

(A)  A GROUP BOYCOTT IS NOT TO BE TOLERATED MERELY BECAUSE THE VICTIM
IS ONLY ONE MERCHANT WHOSE BUSINESS IS SO SMALL THAT HIS DESTRUCTION
MAKES LITTLE DIFFERENCE TO THE ECONOMY.  P. 213. 

(B)  MONOPOLY CAN AS SURELY THRIVE BY THE ELIMINATION OF SMALL
BUSINESSMEN, ONE AT A TIME, AS IT CAN BY DRIVING THEM OUT IN LARGE
GROUPS.  P. 213. 

KLOR'S, INC., V. BROADWAY-HALE STORES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

KLOR'S, INC., OPERATES A RETAIL STORE ON MISSION STREET, SAN
FRANCISCO, CALIFORNIA; BROADWAY-HALE STORES, INC., A CHAIN OF
DEPARTMENT STORES, OPERATES ONE OF ITS STORES NEXT DOOR.  THE TWO
STORES COMPETE IN THE SALE OF RADIOS, TELEVISION SETS, REFRIGERATORS
AND OTHER HOUSEHOLD APPLIANCES.  CLAIMING THAT BROADWAY-HALE AND 10
NATIONAL MANUFACTURERS AND THEIR DISTRIBUTORS HAVE CONSPIRED TO
RESTRAIN AND MONOPOLIZE COMMERCE IN VIOLATION OF SECS. 1 AND 2 OF THE
SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. SECS. 1, 2, KLOR'S
BROUGHT THIS ACTION FOR TREBLE DAMAGES AND INJUNCTION IN THE UNITED
STATES DISTRICT COURT.  (FN1) 

IN SUPPORT OF ITS CLAIM KLOR'S MADE THE FOLLOWING ALLEGATIONS:
GEORGE KLOR STARTED AN APPLIANCE STORE SOME YEARS BEFORE 1952 AND HAS
OPERATED IT EVER SINCE EITHER INDIVIDUALLY OR AS KLOR'S, INC. KLOR'S IS
AS WELL EQUIPPED AS BROADWAY-HALE TO HANDLE ALL BRANDS OF APPLIANCES. 
NEVERTHELESS, MANUFACTURERS AND DISTRIBUTORS OF SUCH WELL-KNOWN BRANDS
AS GENERAL ELECTRIC, RCA, ADMIRAL, ZENITH, EMERSON AND OTHERS (FN2)
HAVE CONSPIRED AMONG THEMSELVES AND WITH BROADWAY-HALE EITHER NOT TO
SELL TO KLOR'S OR TO SELL TO IT ONLY AT DISCRIMINATORY PRICES AND
HIGHLY UNFAVORABLE TERMS.  BROADWAY-HALE HAS USED ITS "MONOPOLISTIC"
BUYING POWER TO BRING ABOUT THIS SITUATION.  THE BUSINESS OF
MANUFACTURING, DISTRIBUTING AND SELLING HOUSEHOLD APPLIANCES IS IN
INTERSTATE COMMERCE.  THE CONCERTED REFUSAL TO DEAL WITH KLOR'S HAS
SERIOUSLY HANDICAPPED ITS ABILITY TO COMPETE AND HAS ALREADY CAUSED IT
A GREAT LOSS OF PROFITS, GOODWILL, REPUTATION AND PRESTIGE. 

THE DEFENDANTS DID NOT DISPUTE THESE ALLEGATIONS, BUT SOUGHT SUMMARY
JUDGMENT AND DISMISSAL OF THE COMPLAINT FOR FAILURE TO STATE A CAUSE OF
ACTION.  THEY SUBMITTED UNCHALLENGED AFFIDAVITS WHICH SHOWED THAT THERE
WERE HUNDREDS OF OTHER HOUSEHOLD APPLIANCE RETAILERS, SOME WITHIN A FEW
BLOCKS OF KLOR'S WHO SOLD MANY COMPETING BRANDS OF APPLIANCES,
INCLUDING THOSE THE DEFENDANTS REFUSED TO SELL TO KLOR'S.  FROM THE
ALLEGATIONS OF THE COMPLAINT, AND FROM THE AFFIDAVITS SUPPORTING THE
MOTION FOR SUMMARY JUDGMENT, THE DISTRICT COURT CONCLUDED THAT THE
CONTROVERSY WAS A "PURELY PRIVATE QUARREL" BETWEEN KLOR'S AND BROADWAY
HALE, WHICH DID NOT AMOUNT TO A "PUBLIC WRONG PROSCRIBED BY THE SHERMAN
ACT."  ON THIS GROUND THE COMPLAINT WAS DISMISSED AND SUMMARY JUDGMENT
WAS ENTERED FOR THE DEFENDANTS.  THE COURT OF APPEALS FOR THE NINTH
CIRCUIT AFFIRMED THE SUMMARY JUDGMENT.  255 F.2D 214.  IT STATED THAT
"A VIOLATION OF THE SHERMAN ACT REQUIRES CONDUCT OF DEFENDANTS BY WHICH
THE PUBLIC IS OR CONCEIVABLY MAY BE ULTIMATELY INJURED."  255 F.2D, AT
233.  IT HELD THAT HERE THE REQUIRED PUBLIC INJURY WAS MISSING SINCE
"THERE WAS NO CHARGE OR PROOF THAT BY ANY ACT OF DEFENDANTS THE PRICE,
QUANTITY, OR QUALITY OFFERED THE PUBLIC WAS AFFECTED, NOR THAT THERE
WAS ANY INTENT OR PURPOSE TO EFFECT A CHANGE IN, OR AN INFLUENCE ON,
PRICES, QUANTITY, OR QUALITY  ...  ."  ID., AT 230.  THE HOLDING, IF
CORRECT, MEANS THAT UNLESS THE OPPORTUNITIES FOR CUSTOMERS TO BUY IN A
COMPETITIVE MARKET ARE REDUCED, A GROUP OF POWERFUL BUSINESSMEN MAY ACT
IN CONCERT TO DEPRIVE A SINGLE MERCHANT, LIKE KLOR, OF THE GOODS HE
NEEDS TO COMPETE EFFECTIVELY.  WE GRANTED CERTIORARI TO CONSIDER THIS
IMPORTANT QUESTION IN THE ADMINISTRATION OF THE SHERMAN ACT.  358 U.S.
809. 

WE THINK KLOR'S ALLEGATIONS CLEARLY SHOW ONE TYPE OF TRADE RESTRAINT
AND PUBLIC HARM THE SHERMAN ACT FORBIDS, AND THAT DEFENDANTS'
AFFIDAVITS PROVIDE NO DEFENSE TO THE CHARGES.  SECTION 1 OF THE SHERMAN
ACT MAKES ILLEGAL ANY CONTRACT, COMBINATION OR CONSPIRACY IN RESTRAINT
OF TRADE, AND SEC. 2 FORBIDS ANY PERSON OR COMBINATION FROM
MONOPOLIZING OR ATTEMPTING TO MONOPOLIZE ANY PART OF INTERSTATE
COMMERCE.  IN THE LANDMARK CASE OF STANDARD OIL CO. V. UNITED STATES,
221 U.S. 1, THIS COURT READ SEC. 1 TO PROHIBIT THOSE CLASSES OF
CONTRACTS OR ACTS WHICH THE COMMON LAW HAD DEEMED TO BE UNDUE
RESTRAINTS OF TRADE AND THOSE WHICH NEW TIMES AND ECONOMIC CONDITIONS
WOULD MAKE UNREASONABLE.  ID., AT 59-60.  THE COURT CONSTRUED SEC. 2 AS
MAKING "THE PROHIBITIONS OF THE ACT ALL THE MORE COMPLETE AND PERFECT
BY EMBRACING ALL ATTEMPTS TO REACH THE END PROHIBITED BY THE FIRST
MONOPOLIZATION THEREOF  ... ."  ID., AT 61.  THE EFFECT OF BOTH
ALL "CONTRACTS OR ACTS WHICH IT WAS CONSIDERED HAD A MONOPOLISTIC
TENDENCY  ... " AND WHICH INTERFERED WITH THE "NATURAL FLOW" OF AN
APPRECIABLE AMOUNT OF INTERSTATE COMMERCE.  ID., AT 57, 61; EASTERN
STATES LUMBER ASSN.  V. UNITED STATES, 234 U.S. 600, 609.  THE COURT
RECOGNIZED THAT THERE WERE SOME AGREEMENTS WHOSE VALIDITY DEPENDED ON
THE SURROUNDING CIRCUMSTANCES.  IT EMPHASIZED, HOWEVER, THAT THERE WERE
CLASSES OF RESTRAINTS WHICH FROM THEIR "NATURE OR CHARACTER" WERE
UNDULY RESTRICTIVE, AND HENCE FORBIDDEN BY BOTH THE COMMON LAW AND THE
STATUTE.  221 U.S., AT 58, 65.  (FN3)  AS TO THESE CLASSES OF
RESTRAINTS, THE COURT NOTED, CONGRESS HAD DETERMINED ITS OWN CRITERIA
OF PUBLIC HARM AND IT WAS NOT FOR THE COURTS TO DECIDE WHETHER IN AN
INDIVIDUAL CASE INJURY HAD ACTUALLY OCCURRED.  ID., AT 63-68.  (FN4) 

GROUP BOYCOTTS, OR CONCERTED REFUSALS BY TRADERS TO DEAL WITH OTHER
TRADERS, HAVE LONG BEEN HELD TO BE IN THE FORBIDDEN CATEGORY.  (FN5)
THEY HAVE NOT BEEN SAVED BY ALLEGATIONS THAT THEY WERE REASONABLE IN
THE SPECIFIC CIRCUMSTANCES, NOR BY A FAILURE TO SHOW THAT THEY "FIXED
OR REGULATED PRICES, PARCELLED OUT OR LIMITED PRODUCTION, OR BROUGHT
ABOUT A DETERIORATION IN QUALITY."  FASHION ORIGINATORS' GUILD V.
FEDERAL TRADE COMM'N, 312 U.S. 457, 466, 467-468.  CF. UNITED STATES V.
TRENTON POTTERIES CO., 273 U.S. 392.  EVEN WHEN THEY OPERATED TO LOWER
PRICES OR TEMPORARILY TO STIMULATE COMPETITION THEY WERE BANNED.  FOR,
AS THIS COURT SAID IN KIEFER-STEWART CO. V. SEAGRAM & SONS, 340 U.S.
211, 213, "SUCH AGREEMENTS, NO LESS THAN THOSE TO FIX MINIMUM PRICES,
CRIPPLE THE FREEDOM OF TRADERS AND THEREBY RESTRAIN THEIR ABILITY TO
SELL IN ACCORDANCE WITH THEIR OWN JUDGMENT."  CF. UNITED STATES V.
PATTEN, 226 U.S. 525, 542. 

PLAINLY THE ALLEGATIONS OF THIS COMPLAINT DISCLOSE SUCH A BOYCOTT. 
THIS IS NOT A CASE OF A SINGLE TRADER REFUSING TO DEAL WITH ANOTHER,
(FN6) NOR EVEN OF A MANUFACTURER AND A DEALER AGREEING TO AN EXCLUSIVE
DISTRIBUTORSHIP.  ALLEGED IN THIS COMPLAINT IS A WIDE COMBINATION
CONSISTING OF MANUFACTURERS, DISTRIBUTORS AND A RETAILER.  THIS
COMBINATION TAKES FROM KLOR'S ITS FREEDOM TO BUY APPLIANCES IN AN OPEN
COMPETITIVE MARKET AND DRIVES IT OUT OF BUSINESS AS A DEALER IN THE
DEFENDANTS' PRODUCTS.  IT DEPRIVES THE MANUFACTURERS AND DISTRIBUTORS
OF THEIR FREEDOM TO SELL TO KLOR'S AT THE SAME PRICES AND CONDITIONS
MADE AVAILABLE TO BROADWAY-HALE, AND IN SOME INSTANCES FORBIDS THEM
FROM SELLING TO IT ON ANY TERMS WHATSOEVER.  IT INTERFERES WITH THE
NATURAL FLOW OF INTERSTATE COMMERCE.  IT CLEARLY HAS, BY ITS "NATURE"
AND "CHARACTER," A "MONOPOLISTIC TENDENCY."  AS SUCH IT IS NOT TO BE
TOLERATED MERELY BECAUSE THE VICTIM IS JUST ONE MERCHANT WHOSE BUSINESS
IS SO SMALL THAT HIS DESTRUCTION MAKES LITTLE DIFFERENCE TO THE
ECONOMY.  (FN7)  MONOPOLY CAN AS SURELY THRIVE BY THE ELIMINATION OF
SUCH SMALL BUSINESSMEN, ONE AT A TIME, AS IT CAN BY DRIVING THEM OUT IN
LARGE GROUPS.  IN RECOGNITION OF THIS FACT THE SHERMAN ACT HAS
CONSISTENTLY BEEN READ TO FORBID ALL CONTRACTS AND COMBINATIONS "WHICH
'TEND TO CREATE A MONOPOLY,'" WHETHER "THE TENDENCY IS A CREEPING ONE"
OR "ONE THAT PROCEEDS AT FULL GALLOP."  INTERNATIONAL SALT CO. V.
UNITED STATES, 332 U.S. 392, 396. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT FOR TRIAL.  REVERSED. 

FN1  SECTION 1 OF THE SHERMAN ACT PROVIDES:  "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  ...  ."  SECTION 2 OF THE
ACT READS, "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  ...
."  SECTION 4 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. SEC. 15,
STATES, "ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY
REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR
...  AND SHALL RECOVER THREEFOLD THE DAMAGES BY HIM SUSTAINED  ...  ." 

FN2  THE APPLIANCE MANUFACTURERS NAMED IN THE COMPLAINT ARE:  ADMIRAL
CORP., EMERSON RADIO AND PHONOGRAPH CORP., GENERAL ELECTRIC CO.,
OLYMPIC RADIO AND TELEVISION, INC., PHILCO CORP., RHEEM MANUFACTURING
CO., RADIO CORP. OF AMERICA, TAPPAN STOVE CO., WHIRLPOOL CORP., ZENITH
RADIO CORP. 

FN3  SEE ALSO UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106,
179, WHERE THE COURT NOTED THAT THE STATUTE FORBADE ALL "ACTS OR
CONTRACTS OR AGREEMENTS OR COMBINATIONS  ...  WHICH, EITHER BECAUSE OF
THEIR INHERENT NATURE OR EFFECT OR BECAUSE OF THE EVIDENT PURPOSE OF
THE ACTS, ETC., INJURIOUSLY RESTRAINED TRADE  ...  ." 

FN4  SEE ALSO UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392,
395-401; RADOVICH V. NATIONAL FOOTBALL LEAGUE, 352 U.S. 445, 453-454. 
IN THIS REGARD THE SHERMAN ACT SHOULD BE CONTRASTED WITH SEC. 5 OF THE
FEDERAL TRADE COMMISSION ACT, 38 STAT. 719, AS AMENDED, 15 U.S.C. SEC.
45(B), WHICH REQUIRES THAT THE COMMISSION FIND "THAT A PROCEEDING BY IT
...  WOULD BE TO THE INTEREST OF THE PUBLIC" BEFORE IT ISSUES A
COMPLAINT FOR UNFAIR COMPETITION.  SEE FEDERAL TRADE COMM'N V. KLESNER,
280 U.S. 19, 27.  BUT CF. FASHION ORIGINATORS' GUILD V. FEDERAL TRADE
COMM'N, 312 U.S. 457, 466-467. 

FN5  SEE, E.G., EASTERN STATES LUMBER ASSN. V. UNITED STATES, 234
U.S. 600; BINDERUP V. PATHE EXCHANGE, INC., 263 U.S. 291; FASHION
ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N, 312 U.S. 457; KIEFER
STEWART CO. V. SEAGRAM & SONS, 340 U.S. 211, 214; TIMES-PICAYUNE
PUBLISHING CO. V. UNITED STATES, 345 U.S. 594, 625; NORTHERN PACIFIC R.
CO. V. UNITED STATES, 356 U.S. 1, 5. 

FN6  COMPARE UNITED STATES V. COLGATE & CO., 250 U.S. 300, WITH
UNITED STATES V. SCHRADER'S SON, INC., 252 U.S. 85; UNITED STATES V.
BAUSCH & LOMB OPTICAL CO., 321 U.S. 707, 719-723; LORAIN JOURNAL CO. V.
UNITED STATES, 342 U.S. 143. 

FN7  THE COURT BELOW RELIED HEAVILY ON APEX HOSIERY CO. V. LEADER,
310 U.S. 469, IN REACHING ITS CONCLUSION.  WHILE SOME LANGUAGE IN THAT
CASE CAN BE READ AS SUPPORTING THE POSITION THAT NO RESTRAINT ON TRADE
IS PROHIBITED BY SEC. 1 OF THE SHERMAN ACT UNLESS IT HAS OR IS INTENDED
TO HAVE AN EFFECT ON MARKET PRICES, SUCH STATEMENTS MUST BE CONSIDERED
IN THE LIGHT OF THE FACT THAT THE DEFENDANT IN THAT CASE WAS A LABOR
UNION.  THE COURT IN APEX RECOGNIZED THAT THE ACT IS AIMED PRIMARILY AT
COMBINATIONS HAVING COMMERCIAL OBJECTIVES AND IS APPLIED ONLY TO A VERY
LIMITED EXTENT TO ORGANIZATIONS, LIKE LABOR UNIONS, WHICH NORMALLY HAVE
OTHER OBJECTIVES.  SEE UNITED STATES V. HUTCHESON, 312 U.S. 219; ALLEN
BRADLEY CO. V. LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, 325 U.S. 797.  MOREOVER, CASES SUBSEQUENT TO APEX HAVE MADE
CLEAR THAT AN EFFECT ON PRICES IS NOT ESSENTIAL TO A SHERMAN ACT
VIOLATION.  SEE, E.G., FASHION ORIGINATORS' GUILD V. FEDERAL TRADE
COMM'N, 312 U.S. 457, 466. 

MR. JUSTICE HARLAN, BELIEVING THAT THE ALLEGATIONS OF THE COMPLAINT
ARE SUFFICIENT TO ENTITLE THE PETITIONER TO GO TO TRAIL, AND THAT THE
MATTERS SET FORTH IN RESPONDENTS' AFFIDAVITS ARE NOT NECESSARILY
SUFFICIENT TO CONSTITUTE A DEFENSE IRRESPECTIVE OF WHAT THE PETITIONER
MAY BE ABLE TO PROVE AT THE TRIAL, CONCURS IN THE RESULT. 
..END :


















PARSONS V. SMITH 359 U.S. 215 


NO. 218.  ARGUED MARCH 4, 1959 - DECIDED APRIL 6, 1959* - 255 F.2D 595,
599, AFFIRMED. 

*TOGETHER WITH NO. 305, HUSS ET AL. V. SMITH, FORMER COLLECTOR OF
INTERNAL REVENUE, ALSO ON CERTIORARI TO THE SAME COURT. 


UNDER CONTRACTS WITH THE OWNERS OF COAL-BEARING LANDS, WHICH WERE
TERMINABLE BY THE OWNERS ON SHORT NOTICE WITHOUT CAUSE, PETITIONERS
STRIP MINED COAL FOR THE OWNERS AND RECEIVED FOR THEIR SERVICES A FIXED
PRICE PER TON OF COAL EXTRACTED AND DELIVERED.  PETITIONERS WERE NOT
ENTITLED TO KEEP OR SELL ANY OF THE COAL BUT WERE REQUIRED TO DELIVER
ALL THEY MINED TO THE OWNERS.  HELD: PEITIONERS WERE NOT ENTITLED TO
PERCENTAGE DEPLETION DEDUCTIONS UNDER SECS. 23(M) AND 114(B)(4) OF THE
INTERNAL REVENUE CODE OF 1939 ON THE AMOUNTS RECEIVED BY THEM FOR THEIR
STRIP MINING OPERATIONS, SINCE THEY HAD NO CAPITAL INVESTMENT OR
ECONOMIC INTEREST IN THE COAL IN PLACE.  PP. 216-226. 

PARSONS ET AL. V. SMITH, FORMER COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THESE TAX REFUND CASES PRESENT THE QUESTION WHETHER PETITIONERS,
PARSONS IN NO. 218 AND HUSS IN NO. 305, ARE ENTITLED TO AN ALLOWANCE
FOR DEPLETION ON AMOUNTS RECEIVED BY THEM UNDER CONTRACTS WITH THE
OWNERS OF COAL-BEARING LANDS FOR THE STRIP MINING OF COAL FROM THOSE
LANDS AND THE DELIVERY OF IT TO THE LANDOWNERS.  THE CASES WERE HEARD
BY THE SAME COURTS BELOW.  THE DISTRICT COURT RULED THAT PETITIONERS
HAD NO DEPLETABLE INTEREST IN THE COAL IN PLACE AND RENDERED JUDGMENT
FOR THE RESPONDENT - COLLECTOR IN EACH CASE.  THE COURT OF APPEALS
AFFIRMED BOTH JUDGMENTS.  255 F.2D 595, 599.  BECAUSE OF AN ASSERTED
CONFLICT WITH THE PRINCIPLES APPLICABLE UNDER THE DECISIONS OF THIS
COURT, WE GRANTED CERTIORARI IN BOTH CASES.  358 U.S. 814. 

THE PERTINENT FACTS IN EACH CASE WERE FOUND BY THE DISTRICT COURT AND
ARE NOT CHALLENGED HERE.  IN SUBSTANCE, THEY ARE AS FOLLOWS: 

PARSONS, NO. 218.  PETITIONERS WERE MEMBERS OF A PARTNERSHIP
("PARSONS") WHICH, UNTIL THE TRANSACTIONS INVOLVED HERE, WAS PRIMARILY
ENGAGED IN ROAD BUILDING.  ROCKHILL COAL CO. ("ROCKHILL") OWNED
BITUMINOUS COAL-BEARING LANDS IN PENNSYLVANIA.  MUCH OF THE COAL WAS
LOCATED RELATIVELY NEAR THE SURFACE AND WAS THEREFORE REMOVABLE BY THE
STRIP MINING PROCESS.  (FN1)  IN 1942 PARSONS EXPRESSED A DESIRE TO
STRIP MINE COAL FROM ROCKHILL'S LANDS, BUT IT REFUSED TO SIGN THE
WRITTEN CONTRACT OFFERED BECAUSE THE FIRM DID NOT WISH TO BE BOUND BY A
CONTRACT "WHICH WOULD TAKE A LONG TIME, SINCE, IF AN OPPORTUNITY OPENED
UP, IT WANTED TO GO BACK TO ROAD BUILDING."  IT WAS THEN AGREED THAT
PARSONS WOULD, AND IT DID, PROCEED UNDER AN ORAL AGREEMENT.  UNDER THAT
AGREEMENT PARSONS WAS TO STRIP MINE COAL FROM SUCH SITES AND SEAMS,
WITHIN A GENERALLY DESCRIBED AREA OF ROCKHILL'S LANDS, AS WERE
DESIGNATED BY ROCKHILL.  PARSONS WAS TO FURNISH AT ITS OWN EXPENSE ALL
OF THE EQUIPMENT, FACILITIES AND LABOR WHICH IT THOUGHT NECESSARY TO
STRIP MINE AND DELIVER THE COAL TO ROCKHILL'S CARS AT A FIXED POINT. 
FOR EACH TON OF COAL SO MINED AND DELIVERED ROCKHILL WAS TO PAY PARSONS
A STATED AMOUNT OF MONEY.  (FN2)  PARSONS WAS NOT AUTHORIZED TO KEEP OR
SELL ANY OF THE COAL BUT WAS REQUIRED TO DELIVER ALL THAT WAS MINED TO
ROCKHILL.  THE AGREEMENT WAS NOT FOR A DEFINITE TERM, NOR DID IT
OBLIGATE PARSONS TO MINE THE TRACT TO EXHAUSTION, BUT, TO THE CONTRARY,
IT WAS AGREED THAT "IF PARSONS OR ROCKHILL WANTED TO QUIT, ALL THAT WAS
NECESSARY TO TERMINATE THE ARRANGEMENT WAS THE GIVING OF A TEN-DAY
NOTICE."  HOWEVER, IF ROCKHILL THUS CANCELED THE AGREEMENT AND IF
"PARSONS HAD PREVIOUSLY GONE TO THE EXPENSE OF REMOVING THE OVERBURDEN
(THEREBY PERFORMING THE HEAVY PART OF THE WORK, AS WELL AS MEETING
WAGES AND EXPENSES IN SO DOING), THEN PARSONS WOULD HAVE THE PRIVILEGE
OF TAKING OUT THE COAL (SO UNCOVERED) AND OF BEING PAID FOR IT EVEN
THOUGH THIS TOOK MORE THAN TEN DAYS."  OPERATIONS CONTINUED UNDER THE
AGREEMENT WITHOUT NOTICE OF TERMINATION UNTIL AUGUST 1, 1950, WHEN
PARSONS GAVE ROCKHILL NOTICE THAT IT WOULD "QUIT" THE WORK ON SEPTEMBER
1, 1950, AND IT CEASED THESE OPERATIONS ON OR NEAR THAT DATE.  LARGE
AMOUNTS OF STRIPPABLE COAL STILL REMAINED ON THE TRACT AND STRIP MINING
THEREON WAS CONTINUED BY ANOTHER CONTRACTOR.  PARSONS' INVESTMENT IN
EQUIPMENT USED IN THE WORK RAN FROM A LOW IN 1943 OF $60,000 TO A HIGH
IN 1947 OF $250,000.  THE EQUIPMENT WAS MOVABLE AND THERE IS NO
EVIDENCE THAT IT WAS NOT USABLE ELSEWHERE OR FOR OTHER PURPOSES. 

HUSS, NO. 305.  PETITIONERS WERE MEMBERS OF A PARTNERSHIP ("HUSS")
ENGAGED IN THE BUSINESS OF STRIP MINING COAL.  PHILADELPHIA AND READING
COAL & IRON CO. ("READING") OWNED ANTHRACITE COAL-BEARING LANDS IN
SCHUYLKILL COUNTY, PENNSYLVANIA.  MUCH OF THE COAL WAS SO LOCATED THAT
IT COULD BE REMOVED BY STRIP MINING.  IN 1944 READING AND HUSS ENTERED
INTO A WRITTEN CONTRACT (FN3) UNDER WHICH HUSS UNDERTOOK TO STRIP MINE
THE COAL FROM SUCH AREAS, WITHIN A GENERALLY DESCRIBED TRACT OF
READING'S LAND, AS MIGHT BE DESIGNATED BY READING AND THAT WAS NOT
LYING DEEPER THAN A PRESCRIBED DISTANCE FROM THE SURFACE.  HUSS WAS TO
FURNISH AT ITS OWN EXPENSE ALL OF THE EQUIPMENT, FACILITIES AND LABOR
NECESSARY TO MINE AND DELIVER THE COAL TO READING'S COLLIERY.  FOR EACH
TON OF COAL SO MINED AND DELIVERED READING WAS TO PAY HUSS A STATED
SUM.  (FN4)  THAT SUM WAS AGREED TO BE IN "FULL COMPENSATION FOR THE
FULL PERFORMANCE OF ALL WORK AND FOR THE FURNISHING OF ALL MATERIAL,
LABOR, POWER, TOOLS, MACHINERY, IMPLEMENTS AND EQUIPMENT REQUIRED FOR
THE WORK."  HUSS WAS NOT AUTHORIZED TO KEEP OR SELL ANY OF THE COAL. 
THE CONTRACT WAS EXPRESSLY TERMINABLE BY READING AT ANY TIME UPON 30
DAYS' WRITTEN NOTICE "WITHOUT SPECIFYING ANY REASONS THEREFOR" AND
WITHOUT LIABILITY FOR "ANY LOSS OF ANTICIPATED PROFITS OR ANY OTHER
DAMAGES WHATEVER."  THIS RIGHT OF TERMINATION WAS NOT EXERCISED. 
OPERATIONS CONTINUED UNDER THE CONTRACT UNTIL JULY 1947, BY WHICH TIME
HUSS HAD MINED MOST OF THE STRIPPABLE COAL ON THE LANDS COVERED BY THE
CONTRACT THAT LAY WITHIN THE STIPULATED DISTANCE FROM THE SURFACE, AND
THE CONTRACT WAS THEN CANCELED BY MUTUAL AGREEMENT.  HUSS' INVESTMENT
IN EQUIPMENT USED IN THE WORK RAN FROM A LOW IN 1944 OF $100,000 TO A
HIGH IN 1947 OF $500,000.  ALL OF THE EQUIPMENT WAS MOVABLE AND USABLE
ELSEWHERE IN STRIP MINING AND SOME OF IT WAS USABLE FOR OTHER
PURPOSES. 

WHETHER A DEDUCTION FROM GROSS INCOME SHALL BE PERMITTED FOR
DEPLETION OF MINERAL DEPOSITS, OR ANY INTEREST THEREIN, IS ENTIRELY A
MATTER OF GRACE.  (FN5)  WE THEREFORE MUST LOOK, FIRST, TO THE
PROVISIONS AND PURPOSES OF THE STATUTES AND TO THE DECISIONS CONSTRUING
THEM TO SEE WHAT INTERESTS ARE PERMITTED A DEDUCTION FOR DEPLETION,
AND, NEXT, TO THE CONTRACTS INVOLVED TO SEE WHETHER THEY GAVE TO
PETITIONERS SUCH AN INTEREST. 

THE APPLICABLE STATUTES ARE SECS. 23(M) AND 114(B)(4)(A) OF THE
INTERNAL REVENUE CODE OF 1939, 26 U.S.C. (1952 ED.)  SEC.  23(M) AND 26
U.S.C. (1946 ED.)  SEC.  114(B)(4)(A).  SECTION 23(M) DIRECTS THAT A
REASONABLE ALLOWANCE FOR DEPLETION SHALL BE MADE "IN THE CASE OF MINES,
...  ACCORDING TO THE PECULIAR CONDITIONS IN EACH CASE; SUCH
REASONABLE ALLOWANCE IN ALL CASES TO BE MADE UNDER RULES AND
REGULATIONS TO BE PRESCRIBED BY THE COMMISSIONER, WITH THE APPROVAL OF
THE SECRETARY," AND THAT "IN THE CASE OF LEASES THE DEDUCTIONS SHALL BE
EQUITABLY APPORTIONED BETWEEN THE LESSOR AND LESSEE."  AND SEC.
114(B)(4)(A) PROVIDES THAT THE ALLOWANCE SHALL BE, "IN THE CASE OF COAL
MINES, 5 PERCENTUM  ...  OF THE GROSS INCOME FROM MINING (FN6) THE
PROPERTY DURING THE TAXABLE YEAR, EXCLUDING  ... ANY RENTS OR ROYALTIES
PAID OR INCURRED BY THE TAXPAYER IN RESPECT OF THE PROPERTY." 

THE PURPOSE OF THE DEDUCTION FOR DEPLETION IS PLAIN AND HAS BEEN MANY
TIMES DECLARED BY THIS COURT.  "IT IS PERMITTED IN RECOGNITION OF THE
FACT THAT THE MINERAL DEPOSITS ARE WASTING ASSETS AND IS INTENDED AS
COMPENSATION TO THE OWNER FOR THE PART USED UP IN PRODUCTION." 
HELVERING V. BANKLINE OIL CO., 303 U.S. 362, 366.  AND SEE UNITED
STATES V. LUDEY, 274 U.S. 295, 302; HELVERING V. ELBE OIL LAND
DEVELOPMENT CO., 303 U.S. 372, 375; ANDERSON V. HELVERING, 310 U.S.
404, 408; KIRBY PETROLEUM CO. V. COMMISSIONER, 326 U.S. 599, 603.  "THE
DEPLETION EXCLUSION IS DESIGNED TO PERMIT A RECOUPMENT OF THE OWNER'S
CAPITAL INVESTMENT IN THE MINERALS SO THAT WHEN THE MINERALS ARE
EXHAUSTED, THE OWNER'S CAPITAL IS UNIMPAIRED."  COMMISSIONER V.
SOUTHWEST EXPLORATION CO., 350 U.S. 308, 312.  SAVE FOR ITS APPLICATION
ONLY TO GROSS INCOME FROM MINERAL DEPOSITS AND STANDING TIMBER, THE
PURPOSE OF "THE DEDUCTION FOR DEPLETION DOES NOT DIFFER FROM THE
DEDUCTION FOR DEPRECIATION."  UNITED STATES V. LUDEY, 274 U.S., AT
303.  IN SHORT, THE PURPOSE OF THE DEPLETION DEDUCTION IS TO PERMIT THE
OWNER OF A CAPITAL INTEREST IN MINERAL IN PLACE TO MAKE A TAX-FREE
RECOVERY OF THAT DEPLETING CAPITAL ASSET. 

ALTHOUGH THE SENTENCE IN SEC. 23(M) THAT "IN THE CASE OF LEASES THE
DEDUCTIONS SHALL BE EQUITABLY APPORTIONED BETWEEN THE LESSOR AND
LESSEE" PRESUPPOSES "THAT THE DEDUCTIONS MAY BE ALLOWED IN OTHER CASES"
(PALMER V. BENDER, 287 U.S. 551, 557), THE STATUTE "MUST BE READ IN THE
LIGHT OF THE REQUIREMENT OF APPORTIONMENT OF A SINGLE DEPLETION
ALLOWANCE" (HELVERING V. TWIN BELL OIL SYNDICATE, 293 U.S. 312, 321),
FOR TWO OR MORE PERSONS "CANNOT BE ENTITLED TO DEPLETION ON THE SAME
INCOME" (COMMISSIONER V. SOUTHWEST EXPLORATION CO., 350 U.S. 308,
309).  IT FOLLOWS THAT IF PETITIONERS ARE ENTITLED TO A DEPLETION
ALLOWANCE ON THE AMOUNTS EARNED UNDER THEIR CONTRACTS, THE AMOUNTS
ALLOWABLE TO THE LANDOWNERS FOR THE DEPLETION OF THEIR COAL DEPOSITS
WOULD BE CORRESPONDINGLY REDUCED. 

DEALING SPECIFICALLY WITH THE PROBLEM OF WHAT INTERESTS IN MINERAL
DEPOSITS WERE PERMITTED A DEDUCTION FOR DEPLETION UNDER THE PRACTICALLY
IDENTICAL PREDECESSORS OF SECS. 23(M) AND 114, THIS COURT SAID IN
PALMER V. BENDER, 287 U.S. 551, 557:  "THE LANGUAGE OF THE STATUTE IS
BROAD ENOUGH TO PROVIDE, AT LEAST, FOR EVERY CASE IN WHICH THE TAXPAYER
HAS ACQUIRED, BY INVESTMENT, ANY INTEREST IN THE OIL IN PLACE, AND
SECURES, BY ANY FORM OF LEGAL RELATIONSHIP, INCOME DERIVED FROM THE
EXTRACTION OF THE OIL, TO WHICH HE MUST LOOK FOR A RETURN OF HIS
CAPITAL."  THE COURT FURTHER SAID THAT THE DEDUCTION IS NOT "DEPENDENT
UPON THE PARTICULAR LEGAL FORM OF THE TAXPAYER'S INTEREST IN THE
PROPERTY TO BE DEPLETED, AND THAT IT IS ENOUGH IF  ...  HE HAS RETAINED
A RIGHT TO SHARE IN THE OIL PRODUCED.  IF SO HE HAS AN ECONOMIC
INTEREST IN THE OIL, IN PLACE, WHICH IS DEPLETED BY PRODUCTION." 
(FN7)  IBID.  THE COURT WENT ON TO HOLD THAT LESSEES OF OIL PRODUCING
PROPERTIES, BY RESERVING FROM AN ASSIGNMENT A ROYALTY OF "ONE-EIGHTH OF
ALL THE OIL PRODUCED AND SAVED," RETAINED AN ECONOMIC INTEREST IN THE
OIL IN PLACE AND WERE THEREFORE ENTITLED TO AN ALLOWANCE FOR DEPLETION
AGAINST THEIR GROSS INCOME FROM THAT INTEREST. 

FIVE YEARS LATER, IN 1938, THE COURT IN HELVERING V. BANKLINE OIL
CO., 303 U.S. 362, REAFFIRMED THE TEST LAID DOWN IN PALMER AND ADDED:
"BUT THE PHRASE 'ECONOMIC INTEREST' IS NOT TO BE TAKEN AS EMBRACING A
MERE ECONOMIC ADVANTAGE DERIVED FROM PRODUCTION, THROUGH A CONTRACTUAL
RELATION TO THE OWNER, BY ONE WHO HAS NO CAPITAL INVESTMENT IN THE
MINERAL DEPOSIT."  303 U.S., AT 367.  APPLYING THAT PRINCIPLE, THE
COURT HELD THAT A PROCESSOR WHO, BY CONTRACTS WITH THE OWNERS OF GAS
AND OIL WELLS, HAS ACQUIRED THE RIGHT TO TAKE WET GAS FROM THE
WELLHEADS AND TO EXTRACT AND SELL THE GASOLINE THEREFROM, PAYING THE
WELL OWNERS A PERCENTAGE OF THE PROCEEDS OF SUCH SALES, HAD NOT
ACQUIRED AN ECONOMIC INTEREST IN THE DEPLETING GAS IN PLACE BUT ONLY AN
ECONOMIC ADVANTAGE TO BE DERIVED FROM THE PROCESSING OPERATIONS, AND
THAT THEREFORE THE INCOME FROM THOSE OPERATIONS WAS NOT SUBJECT TO THE
DEPLETION DEDUCTION. 

IN HIS FIRST REGULATIONS PRESCRIBED UNDER THE INTERNAL REVENUE ACT OF
1939, THE COMMISSIONER ADOPTED ALMOST LITERALLY THE LANGUAGE WE HAVE
QUOTED FROM PALMER AND BANKLINE AS THE TESTS TO BE ADMINISTRATIVELY
APPLIED IN DETERMINING WHAT INTERESTS IN MINERAL DEPOSITS ARE ENTITLED
TO THE DEPLETION ALLOWANCE.  SEE TREAS. REG. 103, SEC. 19.23(M)-1,
AUGUST 23, 1939.  THAT LANGUAGE, WITH IMMATERIAL CHANGES, HAS REMAINED
IN THE REGULATIONS EVER SINCE.  DURING THE YEARS HERE INVOLVED, 1942
THROUGH 1950, THE REGULATION IN FORCE WAS TREAS. REG. 111, SEC.
29.23(M)-1, WHICH, IN PERTINENT PART, PROVIDES: 

"UNDER THE PROVISIONS OF SECS. 23(M) AND 114 THE OWNER OF AN ECONOMIC
INTEREST IN MINERAL DEPOSITS OR STANDING TIMBER IS ALLOWED ANNUAL
DEPLETION DEDUCTIONS.  AN ECONOMIC INTEREST IS POSSESSED IN EVERY CASE
IN WHICH THE TAXPAYER HAS ACQUIRED, BY INVESTMENT, ANY INTEREST IN
MINERAL IN PLACE OR STANDING TIMBER AND SECURES, BY ANY FORM OF LEGAL
RELATIONSHIP, INCOME DERIVED FROM THE SEVERANCE AND SALE OF THE MINERAL
OR TIMBER, TO WHICH HE MUST LOOK FOR A RETURN OF HIS CAPITAL.  BUT A
PERSON WHO HAS NO CAPITAL INVESTMENT IN THE MINERAL DEPOSIT OR STANDING
TIMBER DOES NOT POSSESS AN ECONOMIC INTEREST MERELY BECAUSE, THROUGH A
CONTRACTUAL RELATION TO THE OWNER, HE POSSESSES A MERE ECONOMIC
ADVANTAGE DERIVED FROM PRODUCTION  ...  ." 

SUCH ARE THE INTERESTS THAT ARE PERMITTED A DEDUCTION FOR DEPLETION
BY THE STATUTES AS CONSISTENTLY INTERPRETED BY THIS COURT AND BY THE
COMMISSIONER. 

PETITIONERS DO NOT DISPUTE THAT THESE ARE THE CONTROLLING PRINCIPLES,
BUT RATHER THEY CONTEND THAT THEY COME WITHIN THOSE THAT ALLOW THE
DEDUCTION.  THEY ARGUE THAT BY THEIR CONTRACTS TO MINE THE COAL, AND
PARTICULARLY BY CONTRIBUTING THEIR EQUIPMENT, ORGANIZATIONS AND SKILLS
TO THE MINING PROJECT AS REQUIRED BY THOSE CONTRACTS, THEY, IN LEGAL
EFFECT, MADE A CAPITAL INVESTMENT IN, AND THEREBY ACQUIRED AN ECONOMIC
INTEREST IN, THE COAL IN PLACE, WHICH WAS DEPLETABLE BY PRODUCTION, AND
THAT THEY ARE THEREFORE ENTITLED TO TAKE THE DEDUCTION AGAINST THEIR
GROSS INCOME DERIVED FROM THOSE MINING OPERATIONS.    WE TAKE A
DIFFERENT VIEW.  IT STANDS ADMITTED THAT BEFORE AND APART FROM THEIR
CONTRACTS, PETITIONERS HAD NO INVESTMENT OR INTEREST IN THE COAL IN
PLACE.  THEIR ASSERTED RIGHT TO THE DEDUCTION RESTS ENTIRELY UPON THEIR
CONTRACTS.  IS THERE ANYTHING IN THOSE CONTRACTS TO INDICATE THAT
PETITIONERS MADE A CAPITAL INVESTMENT IN, OR ACQUIRED AN ECONOMIC
INTEREST IN, THE COAL IN PLACE, AS DISTINGUISHED FROM THE ACQUISITION
OF A MERE ECONOMIC ADVANTAGE TO BE DERIVED FROM THEIR MINING
OPERATIONS?  WE THINK IT IS QUITE PLAIN THAT THERE IS NOT. 

BY THEIR CONTRACTS, WHICH WERE COMPLETELY TERMINABLE WITHOUT CAUSE ON
SHORT NOTICE, PETITIONERS SIMPLY AGREED TO PROVIDE THE EQUIPMENT AND DO
THE WORK REQUIRED TO STRIP MINE COAL FROM DESIGNATED LANDS OF THE
LANDOWNERS AND TO DELIVER THE COAL TO THE LATTER AT STATED POINTS, AND
IN FULL CONSIDERATION FOR PERFORMANCE OF THAT UNDERTAKING THE
LANDOWNERS WERE TO PAY TO PETITIONERS A FIXED SUM PER TON.  SURELY
THOSE AGREEMENTS DO NOT SHOW OR SUGGEST THAT PETITIONERS ACTUALLY MADE
ANY CAPITAL INVESTMENT IN THE COAL IN PLACE, OR THAT THE LANDOWNERS
WERE TO OR ACTUALLY DID IN ANY WAY SURRENDER TO PETITIONERS ANY PART OF
THEIR CAPITAL INTEREST IN THE COAL IN PLACE.  PETITIONERS DO NOT
FACTUALLY ASSERT OTHERWISE.  THEIR CLAIM TO THE CONTRARY IS BASED
WHOLLY UPON AN ASSERTED LEGAL FICTION.  AS STATED, THEY CLAIM THAT
THEIR CONTRACTUAL RIGHT TO MINE COAL FROM THE DESIGNATED LANDS AND THE
USE OF THEIR EQUIPMENT, ORGANIZATIONS AND SKILLS IN DOING SO, SHOULD BE
REGARDED AS THE MAKING OF A CAPITAL INVESTMENT IN, AND THE ACQUISITION
OF AN ECONOMIC INTEREST IN, THE COAL IN PLACE.  BUT THAT FICTION CANNOT
BE INDULGED HERE, FOR IT IS NEGATED BY THE FACTS. 

TO RECAPITULATE, THE ASSERTED FICTION IS OPPOSED TO THE FACTS (1)
THAT PETITIONERS' INVESTMENTS WERE IN THEIR EQUIPMENT, ALL OF WHICH WAS
MOVABLE - NOT IN THE COAL IN PLACE; (2) THAT THEIR INVESTMENTS IN
EQUIPMENT WERE RECOVERABLE THROUGH DEPRECIATION - NOT DEPLETION; (3)
THAT THE CONTRACTS WERE COMPLETELY TERMINABLE WITHOUT CAUSE ON SHORT
NOTICE; (4) THAT THE LANDOWNERS DID NOT AGREE TO SURRENDER AND DID NOT
ACTUALLY SURRENDER TO PETITIONERS ANY CAPITAL INTEREST IN THE COAL IN
PLACE; (5) THAT THE COAL AT ALL TIMES, EVEN AFTER IT WAS MINED,
BELONGED ENTIRELY TO THE LANDOWNERS, AND THAT PETITIONERS COULD NOT
SELL OR KEEP ANY OF IT BUT WERE REQUIRED TO DELIVER ALL THAT THEY MINED
TO THE LANDOWNERS; (6) THAT PETITIONERS WERE NOT TO HAVE ANY PART OF
THE PROCEEDS OF THE SALE OF THE COAL, BUT, ON THE CONTRARY, THEY WERE
TO BE PAID A FIXED SUM FOR EACH TON MINED AND DELIVERED, WHICH WAS, AS
STATED IN HUSS, AGREED TO BE IN "FULL COMPENSATION FOR THE FULL
PERFORMANCE OF ALL WORK AND FOR THE FURNISHING OF ALL LABOR AND
EQUIPMENT REQUIRED FOR THE WORK"; AND (7) THAT PETITIONERS, THUS,
AGREED TO LOOK ONLY TO THE LANDOWNERS FOR ALL SUMS TO BECOME DUE THEM
UNDER THEIR CONTRACTS.  THE AGREEMENT OF THE LANDOWNERS TO PAY A FIXED
SUM PER TON FOR MINING AND DELIVERING THE COAL "WAS A PERSONAL COVENANT
AND DID NOT PURPORT TO GRANT PETITIONERS AN INTEREST IN THE COAL IN
PLACE."  HELVERING V. O'DONNELL, 303 U.S. 370, 372.  SURELY THESE FACTS
SHOW THAT PETITIONERS DID NOT ACTUALLY MAKE ANY CAPITAL INVESTMENT IN,
OR ACQUIRE ANY ECONOMIC INTEREST IN, THE COAL IN PLACE, AND THAT THEY
MAY NOT FICTIONALLY BE REGARDED AS HAVING DONE SO. 

"UNDOUBTEDLY, PETITIONERS THROUGH THEIR CONTRACTS OBTAINED AN
ECONOMIC ADVANTAGE FROM THEIR PRODUCTION OF THE COAL, BUT THAT IS NOT
SUFFICIENT.  THE CONTROLLING FACT IS THAT PETITIONERS HAD NO INTEREST
IN THE COAL IN PLACE."  HELVERING V. BANKLINE OIL CO., 303 U.S., AT
368.  OF COURSE, THE PARTIES MIGHT HAVE PROVIDED IN THEIR CONTRACTS
THAT PETITIONERS WOULD HAVE SOME CAPITAL INTEREST IN THE COAL IN PLACE,
BUT THEY DID NOT DO SO - APPARENTLY BY DESIGN.  INSTEAD, PETITIONERS
SIMPLY ENTERED INTO CONTRACTS, TERMINABLE WITHOUT CAUSE ON SHORT
NOTICE, WITH THE OWNERS OF COAL-BEARING LANDS TO PROVIDE THE EQUIPMENT
AND DO THE WORK REQUIRED TO STRIP MINE AND DELIVER COAL FROM THOSE
LANDS, AS INDEPENDENT CONTRACTORS, FOR FIXED UNIT PRICES.  "PETITIONERS
THUS BARGAINED FOR AND OBTAINED AN ECONOMIC ADVANTAGE FROM THE MINING
OPERATIONS BUT THAT ADVANTAGE OR PROFIT DID NOT CONSTITUTE A DEPLETABLE
INTEREST IN THE COAL IN PLACE" (HELVERING V. O'DONNELL, 303 U.S., AT
372), AND HAVING "NO CAPITAL INVESTMENT IN THE MINERAL DEPOSIT WHICH
SUFFERED DEPLETION, PETITIONERS ARE NOT ENTITLED TO THE STATUTORY
ALLOWANCE" (HELVERING V. BANKLINE OIL CO., 303 U.S., AT 368).  THE
JUDGMENTS MUST THEREFORE BE AFFIRMED. 

FN1  STRIP MINING IS DONE FROM THE SURFACE OF THE EARTH.  IN GENERAL,
IT IS PERFORMED BY STRIPPING OFF THE EARTH, KNOWN AS OVERBURDEN, WHICH
LIES OVER THE COAL AND THEN REMOVING THE COAL SO UNCOVERED. 

FN2  IT WAS CONTEMPLATED BY THE PARTIES THAT IN THE EVENT OF AN
INCREASE IN THE UNION LABOR WAGE SCALE THE AMOUNT PER TON TO BE PAID TO
PARSONS WOULD BE INCREASED AND ON SEVERAL OCCASIONS IT WAS INCREASED TO
COVER HIGHER COSTS FOR BOTH LABOR AND MATERIAL USED IN THE WORK. 

FN3 DURING THE TAX YEARS INVOLVED, WHICH WERE 1944 TO 1947, OTHER
LIKE CONTRACTS WERE ENTERED INTO BY THE PARTIES, BUT THEY WERE ALL
IDENTICAL, EXCEPT FOR AREAS COVERED AND PRICES PER TON TO BE PAID TO
HUSS, AND IT WILL THEREFORE BE UNNECESSARY TO TREAT WITH THEM
INDIVIDUALLY. 

FN4  THE CONTRACT PROVIDED, HOWEVER, THAT IN THE EVENT OF AN INCREASE
IN THE UNION LABOR WAGE SCALE THE AMOUNT PER TON TO BE PAID TO HUSS
WOULD BE, AND ON SEVERAL OCCASIONS DURING THE OPERATION IT WAS,
INCREASED SUFFICIENTLY TO COVER INCREASED LABOR COSTS. 

FN5  HELVERING V. BANKLINE OIL CO., 303 U.S. 362, 366; ANDERSON V.
HELVERING, 310 U.S. 404, 408; COMMISSIONER V. SOUTHWEST EXPLORATION
CO., 350 U.S. 308, 312. 

FN6  SECTION 114(B)(4)(B) PROVIDED THAT "THE TERM 'GROSS INCOME FROM
THE PROPERTY' MEANS THE GROSS INCOME FROM MINING."  26 U.S.C. (1946
ED.)  SEC.  114(B)(4)(B). 

FN7  THE PRINCIPLES DECLARED IN THE PALMER CASE HAVE BEEN RECOGNIZED
AND APPLIED BY EVERY SUBSEQUENT DECISION OF THIS COURT THAT HAS TREATED
WITH THE SUBJECT. 

HELVERING V. BANKLINE OIL CO., 303 U.S. 362, 367, LITERALLY ADOPTED
THE LANGUAGE OF THE PALMER CASE UPON THE POINT. 

IN HELVERING V. O'DONNELL, 303 U.S. 370, 371, IT WAS SAID:  "THE
QUESTION IS WHETHER RESPONDENT HAD AN INTEREST, THAT IS, A CAPITAL
INVESTMENT, IN THE OIL AND GAS IN PLACE  ...  .  PALMER V. BENDER, 287
U.S. 551, 557; HELVERING V. TWIN BELL OIL SYNDICATE, 293 U.S. 312, 321;
THOMAS V. PERKINS, 301 U.S. 655, 661; HELVERING V. BANKLINE OIL CO.,
SUPRA." 

HELVERING V. ELBE OIL LAND DEVELOPMENT CO., 303 U.S. 372, 375-376,
DECLARED THAT "THE WORDS 'GROSS INCOME FROM THE PROPERTY,' AS USED IN
THE STATUTE GOVERNING THE ALLOWANCE FOR DEPLETION, MEAN GROSS INCOME
RECEIVED FROM THE OPERATION OF THE OIL AND GAS WELLS BY ONE WHO HAS A
CAPITAL INVESTMENT THEREIN, - NOT INCOME FROM THE SALE OF THE OIL AND
GAS PROPERTIES THEMSELVES." 

ANDERSON V. HELVERING, 310 U.S. 404, 408-409, REPEATED THE STATEMENT
LAST QUOTED. 

IN KIRBY PETROLEUM CO. V. COMMISSIONER, 326 U.S. 599, 603, THE COURT
SAID:  "THE TEST OF THE RIGHT TO DEPLETION IS WHETHER THE TAXPAYER HAS
A CAPITAL INVESTMENT IN THE OIL IN PLACE WHICH IS NECESSARILY REDUCED
AS THE OIL IS EXTRACTED." 

IN BURTON-SUTTON OIL CO. V. COMMISSIONER, 328 U.S. 25, 32, THE COURT
SAID:  "IT SEEMS GENERALLY ACCEPTED THAT IT IS THE OWNER OF A CAPITAL
INVESTMENT OR ECONOMIC INTEREST IN THE OIL IN PLACE WHO IS ENTITLED TO
THE DEPLETION." 

COMMISSIONER V. SOUTHWEST EXPLORATION CO., 350 U.S. 308, 314,
REANNOUNCED SUBSTANTIALLY THE RULE DECLARED IN THE PALMER CASE.  IT
SAID "THAT A TAXPAYER IS ENTITLED TO DEPLETION WHERE HE HAS:  (1)
'ACQUIRED, BY INVESTMENT, ANY INTEREST IN THE OIL IN PLACE,' AND (2)
SECURED BY LEGAL RELATIONSHIP 'INCOME DERIVED FROM THE EXTRACTION OF
THE OIL, TO WHICH HE MUST LOOK FOR A RETURN OF HIS CAPITAL' ...  .
THESE TWO FACTORS, USUALLY CONSIDERED TOGETHER, CONSTITUTE THE
REQUIREMENT OF 'AN ECONOMIC INTEREST.'" 
..END :









BAKER V. TEXAS & PACIFIC RAILWAY CO. 359 U.S. 227 


NO. 363.  ARGUED MARCH 25, 1959 - DECIDED APRIL 6, 1959 - 309 S.W.2D 92,
REVERSED. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
QUESTION WHETHER THE DECEDENT WAS KILLED WHILE HE WAS "EMPLOYED" BY THE
RAILROAD WAS AN ISSUE OF FACT WHICH SHOULD HAVE BEEN SUBMITTED TO THE
JURY.  PP. 227-229. 

BAKER ET AL. V. TEXAS & PACIFIC RAILWAY CO. 

CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, FIFTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THIS ACTION WAS COMMENCED BY THE PETITIONERS AGAINST THE RESPONDENT
RAILROAD IN A TEXAS STATE DISTRICT COURT, UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, 35 STAT. 65, AS AMENDED, 45 U.S.C. SECS. 51-60, TO
RECOVER DAMAGES FOR THE DEATH OF PETITIONERS' DECEDENT, CLAUDE BAKER,
ALLEGEDLY CAUSED BY THE NEGLIGENCE OF THE RESPONDENT.  BAKER HAD BEEN
HIRED AS A WORKMAN BY W.H. NICHOLS & CO., INC., WHICH WAS ENGAGED IN
WORK ALONG THE MAIN LINE RIGHT OF WAY OF THE RESPONDENT UNDER A
CONTRACT WITH IT.  THE WORK CONSISTED OF "GROUTING," OR PUMPING SAND
AND CEMENT INTO THE ROADBED TO STRENGTHEN AND STABILIZE IT.  BAKER WAS
STRUCK AND KILLED BY A TRAIN WHILE ENGAGED AT THIS JOB.  IT WAS
PETITIONERS' CONTENTION IN THE TRIAL COURT THAT BAKER WAS KILLED WHILE
HE WAS "EMPLOYED" BY RESPONDENT, WITHIN THE MEANING OF SEC. 1 OF THE
ACT.  EVIDENCE ON THE QUESTION WAS INTRODUCED BY THE PARTIES, AND A
SPECIAL ISSUE FOR THE JURY'S DETERMINATION WAS FRAMED, BUT THE JUDGE
DECLINED TO SUBMIT THE ISSUE TO THE JURY, HOLDING AS A MATTER OF LAW
THAT BAKER WAS NOT IN SUCH A RELATIONSHIP TO THE RAILROAD AT THE TIME
OF HIS DEATH AS TO ENTITLE HIM TO THE PROTECTION OF THE ACT.  THE COURT
OF CIVIL APPEALS AFFIRMED THE TRIAL COURT'S JUDGMENT FOR THE
RESPONDENT, 309 S.W.2D 92, AND THE TEXAS SUPREME COURT REFUSED AN
APPLICATION FOR A WRIT OF ERROR.  WE GRANTED CERTIORARI, 358 U.S. 878,
TO INVESTIGATE WHETHER SUCH AN ISSUE IS PROPERLY ONE FOR DETERMINATION
BY THE JURY. 

THE FEDERAL EMPLOYERS' LIABILITY ACT DOES NOT USE THE TERMS
"EMPLOYEE" AND "EMPLOYED" IN ANY SPECIAL SENSE, ROBINSON V. BALTIMORE &
OHIO R. CO., 237 U.S. 84, 94, SO THAT THE FAMILIAR GENERAL LEGAL
PROBLEMS AS TO WHOSE "EMPLOYEE" OR "SERVANT" A WORKER IS AT A GIVEN
TIME PRESENT THEMSELVES AS MATTERS OF FEDERAL LAW UNDER THE ACT.  SEE
LINSTEAD V. CHESAPEAKE & OHIO R. CO., 276 U.S. 28, 33-34.   IT HAS BEEN
WELL SAID OF THE QUESTION THAT "EACH CASE MUST BE DECIDED ON ITS
PECULIAR FACTS AND ORDINARILY NO ONE FEATURE OF THE RELATIONSHIP IS
DETERMINATIVE."  CIMORELLI V. NEW YORK CENTRAL R. CO., 148 F.2D 575,
577.  ALTHOUGH WE FIND NO DECISION OF THIS COURT THAT HAS DISCUSSED THE
MATTER, WE THINK IT PERFECTLY PLAIN THAT THE QUESITON, LIKE THAT OF
FAULT OR OF CAUSATION UNDER THE ACT, CONTAINS FACTUAL ELEMENTS SUCH AS
TO MAKE IT ONE FOR THE JURY UNDER APPROPRIATE INSTRUCTIONS AS TO THE
VARIOUS RELEVANT FACTORS UNDER LAW.  SEE RESTATEMENT, AGENCY 2D, SEC.
220, COMMENT C; SEC. 227, COMMENT A. ONLY IF REASONABLE MEN COULD NOT
REACH DIFFERING CONCLUSIONS ON THE ISSUE MAY THE QUESTION BE TAKEN FROM
THE JURY.  SEE CHICAGO, R.I.&P.R. CO. V. BOND, 240 U.S. 449.  HERE THE
PETITIONERS INTRODUCED EVIDENCE TENDING TO PROVE THAT THE GROUTING WORK
WAS PART OF THE MAINTENANCE TASK OF THE RAILROAD; THAT THE ROAD
FURNISHED THE MATERIAL TO BE PUMPED INTO THE ROADBED; AND THAT A
SUPERVISOR, ADMITTEDLY IN THE EMPLOY OF THE RAILROAD, IN THE DAILY
COURSE OF THE WORK EXERCISED DIRECTIVE CONTROL OVER THE DETAILS OF THE
JOB PERFORMED BY THE INDIVIDUAL WORKMEN, INCLUDING THE PRECISE POINT
WHERE THE MIXTURE SHOULD BE PUMPED, WHEN THEY SHOULD MOVE TO THE NEXT
POINT, AND THE CONSISTENCY OF THE MIXTURE.  THE RAILROAD INTRODUCED
EVIDENCE TENDING TO CONTROVERT THIS AND FURTHER EVIDENCE TENDING TO
SHOW THAT AN EMPLOYMENT RELATIONSHIP DID NOT EXIST BETWEEN IT AND BAKER
AT THE TIME OF THE ACCIDENT.  AN ISSUE FOR DETERMINATION BY THE JURY
WAS PRESENTED.  "THE VERY ESSENCE OF ...  THE JURY'S FUNCTION IS TO
SELECT FROM AMONG CONFLICTING INFERENCES AND CONCLUSIONS THAT WHICH IT
CONSIDERS MOST REASONABLE."  TENNANT V. PEORIA & PEKIN UNION R. CO.,
321 U.S. 29, 35.  REVERSED. 

MR. JUSTICE FRANKFURTER WOULD DISMISS THIS WRIT OF CERTIORARI AS
IMPROVIDENTLY GRANTED.  SEE ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S.
500, 524.  AS THE COURT ITSELF NOTES, "'EACH CASE MUST BE DECIDED ON
ITS PECULIAR FACTS  ...  .'"  SUCH CASES ARE UNIQUE AND OF NO
PRECEDENTIAL VALUE AND ARE, THEREFORE, OUTSIDE OF THE CRITERIA
JUSTIFYING A GRANT OF CERTIORARI.  SEE HOUSTON OIL CO. V. GOODRICH, 245
U.S. 440. 
..END :















FOSDICK V. LINZELL 359 U.S. 230 


NO. 704.  DECIDED APRIL 6, 1959.  - APPEAL DISMISSED AND CERTIORARI
DENIED. 


FOSDICK V. LINZELL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














BRISTOL V. HEATON 359 U.S. 230 


NO. 581, MISC.  DECIDED APRIL 6, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 317 S.W.2D 86. 


BRISTOL ET AL. V. HEATON ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, TENTH SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR
CERTIORARI, CERTIORARI IS DENIED. 
..END :















SERVICE STORAGE & TRANSFER CO., INC. V. VIRGINIA 359 U.S. 171 


NO. 92.  ARGUED FEBRUARY 26, 1959 - DECIDED MARCH 30, 1959 - 199 VA.
797, 102 S.E.2D 339, REVERSED. 


PETITIONER, A MOTOR CARRIER AUTHORIZED BY THE INTERSTATE COMMERCE
COMMISSION TO TRANSPORT COMMODITIES BETWEEN BLUEFIELD, W.VA., AND
VARIOUS POINTS IN VIRGINIA AND WEST VIRGINIA, WAS FINED BY VIRGINIA FOR
CARRYING CERTAIN ALLEGEDLY INTRASTATE SHIPMENTS WITHOUT COMPLYING WITH
A VIRGINIA STATUTE GOVERNING INTRASTATE OPERATIONS.  THE SHIPMENTS IN
QUESTION WERE FROM VIRGINIA POINTS TO OTHER VIRGINIA POINTS BUT WERE
ROUTED THROUGH PETITIONER'S MAIN TERMINAL IN BLUEFIELD, W.VA., IN
ACCORDANCE WITH PETITIONER'S USUAL PRACTICE REGARDING LESS-THAN
TRUCKLOAD SHIPMENTS.  SUBSEQUENTLY, THE INTERSTATE COMMERCE COMMISSION
RENDERED AN OPINION CONSTRUING PETITIONER'S CERTIFICATE AS AUTHORIZING
VIRGINIA-TO-VIRGINIA TRAFFIC ROUTED THROUGH BLUEFIELD, W.VA.  HELD:
THE INTERPRETATION OF PETITIONER'S INTERSTATE CERTIFICATE SHOULD HAVE
BEEN LITIGATED BEFORE THE INTERSTATE COMMERCE COMMISSION UNDER SEC.
204(C) OF THE INTERSTATE COMMERCE ACT BEFORE THE STATE ATTEMPTED TO
FINE PETITIONER FOR ALLEGEDLY UNLAWFUL OPERATIONS, AND THE JUDGMENT
SUSTAINING THE FINE IS REVERSED.  PP. 172-179. 

(A)  TO SUSTAIN THE FINES HERE ASSESSED BY THE STATE WOULD BE
TANTAMOUNT TO A PARTIAL SUSPENSION OF PETITIONER'S FEDERALLY GRANTED
CERTIFICATE CONTRARY TO 49 U.S.C. SEC. 312.  PP. 176-177. 

(B)  INTERPRETATIONS OF FEDERAL CERTIFICATES OF THIS CHARACTER SHOULD
BE MADE IN THE FIRST INSTANCE BY THE AUTHORITY ISSUING THE
CERTIFICATES.  PP. 177-178. 

(C)  EICHHOLZ V. PUBLIC SERVICE COMM'N, 306 U.S. 268, DISTINGUISHED. 
PP. 178-179. 

(D)  IF THE STATE BELIEVES THAT PETITIONER'S OPERATION IS NOT BONA
FIDE INTERSTATE BUT IS MERELY A SUBTERFUGE TO ESCAPE ITS JURISDICTION,
IT CAN FILE A COMPLAINT WITH THE INTERSTATE COMMERCE COMMISSION UNDER
SEC. 204(C).  P. 179. 

SERVICE STORAGE & TRANSFER CO., INC., V. VIRGINIA. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AN INTERSTATE MOTOR CARRIER CERTIFICATED BY THE
INTERSTATE COMMERCE COMMISSION, BUT WITHOUT A PERMIT FROM VIRGINIA
ALLOWING INTRASTATE OPERATIONS, WAS FINED $5,000 BY THE STATE
CORPORATION COMMISSION FOR CARRYING 10 SHIPMENTS OF FREIGHT ALLEGED TO
HAVE BEEN OF AN INTRASTATE CHARACTER AND, THEREFORE, IN VIOLATION OF
CHAPTER 12, TITLE 56, OF THE CODE OF VIRGINIA.  (FN1)  THE SHIPMENTS IN
QUESTION ORIGINATED AT VIRGINIA POINTS AND WERE DESTINED TO VIRGINIA
POINTS BUT WERE ROUTED THROUGH BLUEFIELD, WEST VIRGINIA, WHERE
PETITIONER MAINTAINS ITS MAIN TERMINAL.  THEY WERE TRANSPORTED IN A
VEHICLE WITH FREIGHT DESTINED TO POINTS OUTSIDE OF VIRGINIA.  UPON
ARRIVAL AT BLUEFIELD THE FREIGHT DESTINED TO VIRGINIA WAS REMOVED AND
CONSOLIDATED WITH FREIGHT COMING TO THE TERMINAL FROM NON-VIRGINIA
ORIGINS.  IT THEN MOVED BACK INTO VIRGINIA TO ITS DESTINATIONS.  THE
CORPORATION COMMISSION FOUND THAT THE ROUTES THUS EMPLOYED THROUGH
BLUEFIELD WERE A SUBTERFUGE TO EVADE STATE LAW.  THE VIRGINIA COURT OF
APPEALS AGREED BUT DIRECTED THAT THE FINE BE REDUCED TO $3,500 BECAUSE
OF A FAILURE OF THE COMMONWEALTH'S CASE ON THREE OF THE SHIPMENTS.  199
VA. 797, 102 S.E.2D 339.  PETITIONER PLEADS THAT VIRGINIA'S
INTERPRETATION OF ITS OPERATIONS CONFLICTS WITH ITS INTERSTATE
CERTIFICATE AS WELL AS AN INTERPRETATION THEREOF BY THE INTERSTATE
COMMERCE COMMISSION.  IT CLAIMS THAT RESPONDENT WAS WITHOUT POWER THUS
TO IMPOSE CRIMINAL SANCTIONS ON ITS CERTIFICATED INTERSTATE
OPERATIONS.  WE GRANTED CERTIORARI, 358 U.S. 810, TO TEST OUT THE
CONFLICTING CONTENTIONS.  WE AGREE WITH THE PETITIONER THAT UNDER THE
FACTS HERE THE INTERPRETATION OF PETITIONER'S INTERSTATE COMMERCE
CERTIFICATE SHOULD FIRST BE LITIGATED BEFORE THE INTERSTATE COMMERCE
COMMISSION UNDER THE PROVISION OF SEC. 204(C) OF THE INTERSTATE
COMMERCE ACT, 49 U.S.C. SEC. 304(C).  (FN2) 

PETITIONER OPERATES ITS TRUCK LINES IN PARTS OF VIRGINIA AND WEST
VIRGINIA.  ITS ACTIVITY IS CARRIED ON UNDER A CERTIFICATE OF
CONVENIENCE AND NECESSITY ISSUED BY THE INTERSTATE COMMERCE
COMMISSION.  THE PETITIONER'S PRESENT I.C.C. CERTIFICATE IS A
COMBINATION OF ITS ORIGINAL 1941 CERTIFICATE AND A SECOND CERTIFICATE
ISSUED IN 1943 UPON ITS PURCHASE OF THE OPERATING RIGHTS OF ANOTHER
CARRIER.  NEITHER IT NOR ITS PREDECESSOR HELD A CERTIFICATE FROM THE
STATE CORPORATION COMMISSION AUTHORIZING ANY INTRASTATE CARRIAGE.  IT
IS AUTHORIZED UNDER THE RELEVANT PARTS OF ITS INTERSTATE CERTIFICATE TO
TRANSPORT GENERAL COMMODITIES AS A MOTOR COMMON CARRIER IN INTERSTATE
COMMERCE: 

"BETWEEN BLUEFIELD, VA., BLUEFIELD, W.VA., AND POINTS AND PLACES
WITHIN FIVE MILES OF BLUEFIELD, W.VA. 

"BETWEEN BLUEFIELD, VA., AND POINTS AND PLACES WITHIN FIVE MILES OF
BLUEFIELD, VA., AND THOSE WITHIN FIVE MILES OF BLUEFIELD, W.VA.,
RESPECTIVELY, ON THE ONE HAND, AND, ON THE OTHER, POINTS AND PLACES IN
THAT PART OF VIRGINIA AND WEST VIRGINIA WITHIN 75 MILES OF THAT
TERRITORY.  BETWEEN BLUEFIELD, W.VA., ON THE ONE HAND, AND, ON THE
OTHER, POINTS AND PLACES IN WEST VIRGINIA, THAT PART OF VIRGINIA WEST
OF U.S. HIGHWAY 29 AND SOUTH OF U.S. HIGHWAY 60 INCLUDING POINTS AND
PLACES ON THE INDICATED PORTIONS OF THE HIGHWAYS SPECIFIED, AND THAT
PART OF VIRGINIA NORTH OF U.S. HIGHWAY 60 WHICH IS WITHIN 80 MILES OF
BLUEFIELD, W.VA." 

PETITIONER'S METHOD OF OPERATION IS UNCONTRADICTED IN THE RECORD.  IT
MAINTAINS ITS HEADQUARTERS IN BLUEFIELD, WEST VIRGINIA, AND TERMINAL
POINTS IN VIRGINIA AT BRISTOL AND ROANOKE.  ITS MAIN ACTIVITY IS THE
MOVEMENT OF FREIGHT OF LESS-THAN-TRUCKLOAD SHIPMENTS.  IN ORDER TO
GATHER THE SHIPMENTS AND, BY COMBINING THEM, MAKE UP A FULL TRUCK LOAD
IT OPERATES "PEDDLER RUNS" FROM ITS VIRGINIA TERMINALS WHICH SERVE AS
PICK UPS FOR FREIGHT IN THE VICINITY.  ALL OF THE TRAFFIC IS DIRECTED
THROUGH THE BLUEFIELD, WEST VIRGINIA, TERMINAL.  ABOUT THREE PERCENT OF
THE TRAFFIC CONSISTS OF SHIPMENTS DESTINED FROM ONE VIRGINIA POINT TO
ANOTHER WHILE THE REMAINDER IS DIRECTED FROM POINTS WITHIN TO THOSE
OUTSIDE THAT STATE.  THE FREIGHT GATHERED BY THE "PEDDLER RUNS" IS
COMBINED AT A TERMINAL AND PLACED IN AN "OVER THE ROAD" TRACTOR TRAILER
UNIT AND CARRIED TO BLUEFIELD, WEST VIRGINIA.  THERE IT IS BROKEN DOWN
AND COMBINED WITH OTHER SHIPMENTS RECEIVED FROM ALL OF THE OTHER RUNS
OF PETITIONER.  THAT PART DESTINED TO POINTS IN AND AROUND BLUEFIELD IS
DELIVERED LOCALLY THROUGH "PEDDLER RUNS" OPERATED FROM THAT TERMINAL. 
THE REMAINDER IS SORTED OUT FOR FORWARDING TO THE TERMINAL NEAREST ITS
DESTINATION AND IS "FILED OUT" BY "OVER THE ROAD" OPERATION.  UPON
ARRIVAL AT THE LATTER TERMINAL IT IS DELIVERED BY "PEDDLER RUNS" TO ITS
LOCAL DESTINATION. 

THE COMMONWEALTH'S CRIMINAL CASE IS BOTTOMED ON SHIPMENTS THE ORIGIN
AND FINAL DESTINATION OF WHICH ARE IN VIRGINIA.  WHILE IT STIPULATED
THAT ALL OF THESE SHIPMENTS WERE ROUTED THROUGH BLUEFIELD, WEST
VIRGINIA, AND WERE, THEREFORE, ON THEIR FACE INTERSTATE SHIPMENTS,
(FN3) VIRGINIA TAKES THE POSITION THAT THEY WERE CLEARLY INTRASTATE IN
CHARACTER BECAUSE HAD THEY BEEN MOVED OVER DIRECT ROUTES NONE WOULD
EVER HAVE LEFT THE COMMONWEALTH.  IT CONTENDS THAT PETITIONER'S
CIRCUITOUS AND UNNECESSARILY LONG ROUTES WERE A MERE SUBTERFUGE TO
ESCAPE INTRASTATE REGULATION AND EVADE ITS JURISDICTION.  ASIDE FROM
THE TESTIMONY OF HIGHWAY OFFICERS AS TO THE ACTUAL SHIPMENTS, NONE OF
WHICH IS DISPUTED, THE COMMONWEALTH'S EVIDENCE CONSISTED SOLELY OF MAPS
SUBSTANTIATING ITS POSITION THAT PETITIONER'S ROUTES WERE CIRCUITOUS
AND OFTEN LONG, SOMETIMES EXCEEDING TWICE THE SHORTEST POSSIBLE ROUTE. 
HOWEVER, IT OFFERED NO DIRECT EVIDENCE OF BAD FAITH ON THE PART OF
PETITIONER IN MOVING ITS TRAFFIC THROUGH BLUEFIELD, WEST VIRGINIA. 

ON THE OTHER HAND, PETITIONER OFFERED THE TESTIMONY OF ITS MANAGER
AND OTHERS AS TO THE BONA FIDES OF ITS OPERATION.  IT PROVED THAT IT
AND ITS PREDECESSOR-OPERATOR HAD BEEN CARRYING ON ITS BUSINESS IN
VIRGINIA IN A SIMILAR MANNER FOR MANY YEARS AND THAT IT ENJOYED
CERTIFICATES FROM THE INTERSTATE COMMERCE COMMISSION AUTHORIZING ITS
OPERATIONS.  PETITIONER ADMITS THAT SOME OF ITS ROUTES ARE CIRCUITOUS
BUT CLAIMS THIS IS BECAUSE OF ITS METHOD OF GATHERING LESS-THAN
TRUCKLOAD SHIPMENTS REGARDLESS OF FINAL DESTINATION AND ROUTING THEM
THROUGH ITS "GATEWAY" TERMINAL AT BLUEFIELD WHERE THEY ARE ASSORTED
ACCORDING TO FINAL DESTINATION.  IT STANDS UNCONTRADICTED THAT ITS
OPERATION IS NOT ONLY PRACTICAL, EFFICIENT AND PROFITABLE, BUT ALSO
THAT THE CREATION OF THIS "FLOW OF TRAFFIC" IS A TIME-SAVER TO THE
SHIPPER SINCE THERE IS LESS TIME LOST WAITING FOR THE MAKING UP OF A
FULL TRUCK LOAD.  IT ALSO CLAIMS A UNIQUE SERVICE FOR LESS-THAN
TRUCKLOAD SHIPMENTS OF CENTRAL VIRGINIANS WHO SHIP COMMODITIES TO
SOUTHWEST VIRGINIA AND KENTUCKY AND WHO OTHERWISE WOULD SUFFER LONG
DELAYS ON DELIVERIES OR WOULD BE OBLIGED TO SHIP BY SPECIAL TRUCK AT
HIGHER RATES.  WHILE THESE CONSIDERATIONS ARE NOT CONTROLLING, THEY
THROW LIGHT ON PETITIONER'S CLAIM OF BONA FIDES. 

IN CASTLE V. HAYES FREIGHT LINES, 348 U.S. 61, 63-64 (1954), WE
OBSERVED THAT "CONGRESS IN THE MOTOR CARRIER ACT ADOPTED A
COMPREHENSIVE PLAN FOR REGULATING THE CARRIAGE OF GOODS BY MOTOR TRUCK
IN INTERSTATE COMMERCE."  WE POINTED OUT THAT 49 U.S.C. SEC. 312
PROVIDES "THAT ALL CERTIFICATES, PERMITS OR LICENSES ISSUED BY THE
COMMISSION 'SHALL REMAIN IN EFFECT UNTIL SUSPENDED OR TERMINATED AS
HEREIN PROVIDED'  ...  .  UNDER THESE CIRCUMSTANCES, IT WOULD BE ODD IF
A STATE COULD TAKE ACTION AMOUNTING TO A SUSPENSION OR REVOCATION OF AN
INTERSTATE CARRIER'S COMMISSION-GRANTED RIGHT TO OPERATE."  TO UPHOLD
THE CRIMINAL FINES HERE ASSESSED WOULD BE TANTAMOUNT TO A PARTIAL
SUSPENSION OF PETITIONER'S FEDERALLY GRANTED CERTIFICATE.  EVEN THOUGH
THE QUESTIONED OPERATIONS CONSTITUTE ONLY A MINOR, I.E., THREE PERCENT,
PORTION OF THE PETITIONER'S BUSINESS, THAT PORTION IS NEVERTHELESS
ENTITLED TO THE SAME PROTECTION AS ARE THE OTHER OPERATIONS WHICH ARE
CONDUCTED UNDER THE CERTIFICATE.  IN FACT, THE METHOD OF HANDLING IS
IDENTICAL AND THE FREIGHT IS OFTEN TRANSPORTED IN THE SAME VEHICLE. 
THE CERTIFICATE ON ITS FACE COVERS THE WHOLE OPERATION.  IN FACT, IN
1953, IN APPROVING THE ACQUISITION OF PETITIONER BY ANOTHER CARRIER,
THE I.C.C. EXPRESSLY APPROVED THE VERY TYPE OF OPERATION NOW BEING
CARRIED ON.  IN ITS UNPUBLISHED REPORT, THE COMMISSION NOTED: 

"UNDER ITS EXISTING AUTHORITY, SERVICE STORAGE MAY LAWFULLY PERFORM A
CROSS-HAUL SERVICE UNDER A COMBINATION OF ITS RADIAL RIGHTS BY
OPERATING, FOR EXAMPLE, BETWEEN POINTS IN WEST VIRGINIA WITHIN 75 MILES
OF THE BASE AREA, ON THE ONE HAND, AND, ON THE OTHER, POINTS IN
VIRGINIA ON AND WEST OF U.S. HIGHWAY 29 AND ON THE SOUTH OF U.S.
HIGHWAY 60, AND POINTS IN THE THREE KENTUCKY COUNTIES PROVIDED SUCH
OPERATIONS UNDER A COMBINATION OF THE VARIOUS RIGHTS ARE ROUTED THROUGH
BLUEFIELD AS A GATEWAY."  MC-F-5361, SMITH'S TRANSFER CORPORATION OF
STAUNTON, VA. - CONTROL - SERVICE STORAGE AND TRANSFER COMPANY, INC.,
59 M.C.C. 803 (REPORT NOT PUBLISHED.) 

IT APPEARS CLEAR THAT INTERPRETATIONS OF FEDERAL CERTIFICATES OF THIS
CHARACTER SHOULD BE MADE IN THE FIRST INSTANCE BY THE AUTHORITY ISSUING
THE CERTIFICATE AND UPON WHOM THE CONGRESS HAS PLACED THE
RESPONSIBILITY OF ACTION.  THE COMMISSION HAS LONG TAKEN THIS
POSITION.  COMPARE ATLANTIC FREIGHT LINES, INC., V. PENNSYLVANIA PUBLIC
UTILITY COMM'N, 163 PA. SUPER.  215, 60 A.2D 589, WITH ATLANTIC FREIGHT
LINES, INC. - PETITION FOR DECLARATORY ORDER, 51 M.C.C. 175.  THE
WISDOM OF SUCH A PRACTICE IS HIGHLIGHTED BY THE FACTS OF THIS CASE. 
BETWEEN THE CLOSE OF THE HEARING, AND THE ANNOUNCEMENT OF THE VIRGINIA
COMMISSION'S DECISION, SERVICE PETITIONED THE I.C.C. FOR A DECLARATORY
ORDER INTERPRETING ITS CERTIFICATE.  THE COMMONWEALTH, ALTHOUGH IT HAD
NOTICE OF THE I.C.C. PROCEEDING, ELECTED NOT TO PARTICIPATE.  AFTER THE
VIRGINIA COMMISSION HAD FOUND PETITIONER TO BE OPERATING IN INTRASTATE
COMMERCE AND FINED IT FOR SUCH OPERATION, THE I.C.C. ISSUED AN OPINION,
71 M.C.C. 304, IN WHICH IT CONSTRUED PETITIONER'S CERTIFICATE AS
AUTHORIZING VIRGINIA-TO-VIRGINIA TRAFFIC ROUTED THROUGH BLUEFIELD, WEST
VIRGINIA.  (FN4)  THIS WAS BUT A REAFFIRMATION OF ITS PRIOR
INTERPRETATION OF THE CERTIFICATE.  59 M.C.C. 803, SUPRA.  SUCH
CONFLICTS CAN BEST BE AVOIDED IF THE INTERPRETATION OF I.C.C.
CERTIFICATES IS LEFT TO THE INTERSTATE COMMERCE COMMISSION. 

NOR IS EICHHOLZ V. PUBLIC SERVICE COMM'N, 306 U.S. 268 (1939) TO THE
CONTRARY.  THERE MISSOURI REVOKED A CARRIER'S INTERSTATE PERMIT BECAUSE
IT CROSSED STATE LINES INTO KANSAS CITY, KANSAS, FOR THE SOLE PURPOSE
OF CREATING AN INTERSTATE OPERATION.  EICHHOLZ, HOWEVER, HAD NO
CERTIFICATE FROM THE INTERSTATE COMMERCE COMMISSION, AND THIS COURT'S
OPINION WAS PREMISED ON THIS FACT RATHER THAN THAT THE INTERSTATE
OPERATIONS WERE MERELY A SUBTERFUGE AND HENCE NOT BONA FIDE.  THE WORDS
OF CHIEF JUSTICE HUGHES THERE CLEARLY DISTINGUISH THAT CASE FROM THE
PRESENT: 

"WHEN THE MISSOURI COMMISSION REVOKED THE PERMIT, THE INTERSTATE
COMMERCE COMMISSION HAD NOT ACTED UPON APPELLANT'S APPLICATION UNDER
THE FEDERAL MOTOR CARRIER ACT AND MEANWHILE THE AUTHORITY OF THE STATE
BODY TO TAKE APPROPRIATE ACTION UNDER THE STATE LAW TO ENFORCE
REASONABLE REGULATIONS OF TRAFFIC UPON THE STATE HIGHWAYS HAD NOT BEEN
SUPERSEDED."  306 U.S., AT 273. 

EICHHOLZ FOLLOWED NATURALLY FROM THE HOLDING OF THE COURT IN WELCH
CO. V. NEW HAMPSHIRE, 306 U.S. 79 (1939), THAT THE ENACTMENT OF THE
MOTOR CARRIER ACT DID NOT, WITHOUT MORE, SUPERSEDE ALL REASONABLE STATE
REGULATION, THE LATTER CONTINUING IN EFFECT UNTIL THE INTERSTATE
COMMERCE COMMISSION ACTED ON THE SAME SUBJECT MATTER.  THAT IT HAS
ADMITTEDLY DONE HERE. 

FINALLY, THE COMMONWEALTH IS NOT HELPLESS TO ACT.  IF IT BELIEVES THAT
PETITIONER'S OPERATION IS NOT BONA FIDE INTERSTATE BUT IS MERELY A
SUBTERFUGE TO ESCAPE ITS JURISDICTION, IT CAN AVAIL ITSELF OF THE
REMEDY CONGRESS HAS PROVIDED IN THE ACT.  SECTION 204(C), SUPRA, NOTE
2, AUTHORIZES THE FILING OF A "COMPLAINT IN WRITING TO THE COMMISSION
BY ANY  ...  STATE BOARD  ...  THAT ANY  ... CARRIER  ...  " HAS ABUSED
ITS CERTIFICATE.  SEE ALSO CASTLE V. HAYES FREIGHT LINES, SUPRA.  THUS
THE POSSIBILITY OF A MULTITUDE OF INTERPRETATIONS OF THE SAME FEDERAL
CERTIFICATE BY SEVERAL STATES WILL BE AVOIDED AND A UNIFORM
ADMINISTRATION OF THE ACT ACHIEVED. 

THE JUDGMENT IS REVERSED. 

FN1  VA. CODE, 1950, SEC. 56-278, PROVIDES: 

"NO COMMON CARRIER BY MOTOR VEHICLE OR RESTRICTED COMMON CARRIER BY
MOTOR VEHICLE NOT HEREIN EXEMPTED SHALL ENGAGE IN INTRASTATE OPERATION
ON ANY HIGHWAY WITHIN THE STATE WITHOUT FIRST HAVING OBTAINED FROM THE
COMMISSION A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
AUTHORIZING SUCH OPERATION, AND A STATEMENT OF THE STATE HIGHWAY
COMMISSION THAT THE LAW APPLICABLE TO THE PROPOSED ROUTE OR ROUTES HAS
BEEN COMPLIED WITH AS TO SIZE, WEIGHT, AND TYPE OF VEHICLES TO BE USED,
AND A LIKE STATEMENT AS TO ANY INCREASE IN SIZE, WEIGHT, AND TYPE OF
VEHICLES PROPOSED TO BE OPERATED BY THE APPLICANT AFTER SUCH
APPLICATION IS GRANTED."    FN2  THAT SECTION PROVIDES: 

(C)  "UPON COMPLAINT IN WRITING TO THE COMMISSION BY ANY PERSON,
STATE BOARD, ORGANIZATION, OR BODY POLITIC, OR UPON ITS OWN INITIATIVE
WITHOUT COMPLAINT, THE COMMISSION MAY INVESTIGATE WHETHER ANY MOTOR
CARRIER OR BROKER HAS FAILED TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER, OR WITH ANY REQUIREMENT ESTABLISHED PURSUANT THERETO.  IF THE
COMMISSION, AFTER NOTICE AND HEARING, FINDS UPON ANY SUCH INVESTIGATION
THAT THE MOTOR CARRIER OR BROKER HAS FAILED TO COMPLY WITH ANY SUCH
PROVISION OR REQUIREMENT, THE COMMISSION SHALL ISSUE AN APPROPRIATE
ORDER TO COMPEL THE CARRIER OR BROKER TO COMPLY THEREWITH.  WHENEVER
THE COMMISSION IS OF OPINION THAT ANY COMPLAINT DOES NOT STATE
REASONABLE GROUNDS FOR INVESTIGATION AND ACTION ON ITS PART, IT MAY
DISMISS SUCH COMPLAINT."  49 U.S.C. SEC. 304(C). 

FN3  49 U.S.C. SEC. 303(10) DEFINES "INTERSTATE COMMERCE" AS
INCLUDING "COMMERCE  ...  BETWEEN PLACES IN THE SAME STATE THROUGH
ANOTHER STATE,  ...  ."  49 STAT. 544. 

FN4  IN ITS DECLARATORY OPINION THE COMMISSION NOTED: 

"IN THE ABSENCE OF ANY SHOWING THAT PETITIONER'S USE OF ITS
AUTHORIZED ROUTE IS A SUBTERFUGE TO AVOID STATE REGULATION, OR OTHER
THAN A LOGICAL AND NORMAL OPERATION THROUGH THE CARRIER'S HEADQUARTERS,
WE ARE OF THE OPINION THAT PETITIONER'S OPERATIONS, IN THE MANNER
DESCRIBED, CONSTITUTE BONA FIDE TRANSPORTATION IN INTERSTATE COMMERCE. 

     *         *         *         *      * 

"WE FIND THAT THE OPERATIONS DESCRIBED BETWEEN POINTS IN VIRGINIA
THROUGH BLUEFIELD, W.VA., ARE BONA FIDE OPERATIONS IN INTERSTATE
COMMERCE WITHIN THE AUTHORITY GRANTED TO PETITIONER IN CERTIFICATE NO.
MC-30471."  SERVICE STORAGE & TRANSFER CO., INC. - PETITION FOR
DECLARATORY ORDER, 71 M.C.C. 304, 306. 
..END :
























THE MONROSA V. CARBON BLACK EXPORT, INC. 359 U.S. 180 


NO. 178.  ARGUED MARCH 3-4, 1959 - DECIDED MARCH 30, 1959 - 254 F.2D
297, WRIT OF CERTIORARI DISMISSED. 


RESPONDENT, A DELAWARE CORPORATION, BROUGHT A LIBEL IN ADMIRALTY IN A
FEDERAL DISTRICT COURT IN TEXAS FOR DAMAGE TO A SHIPMENT OF GOODS
DURING AN OCEAN VOYAGE FROM HOUSTON AND NEW ORLEANS TO VARIOUS ITALIAN
PORTS.  THE LIBEL WAS IN REM AGAINST THE SHIP, THEN IN THE PORT OF
HOUSTON ON ANOTHER VOYAGE, AND IN PERSONAM AGAINST ITS OWNER, AN
ITALIAN CORPORATION.  AFTER REQUIRING A BOND TO SECURE WHATEVER
JUDGMENT MIGHT FINALLY BE RENDERED, THE DISTRICT COURT DECLINED
JURISDICTION ON THE GROUND THAT THE PARTIES HAD AGREED BY A PROVISION
IN THE BILL OF LADING THAT CONTROVERSIES REGARDING CARGO DAMAGE SHOULD
BE SETTLED ONLY IN THE COURTS OF GENOA, ITALY.  THE COURT OF APPEALS
REVERSED, FINDING THE PROVISION IN THE BILL OF LADING INAPPLICABLE TO
LIBELS IN REM AND DECLINING TO ENFORCE ITS TERMS AS TO THE LIBEL IN
PERSONAM.  HELD: 

1.  THE BILL OF LADING PROVISION CANNOT BE CONSTRUED TO INCLUDE
LIBELS IN REM AND ACCORDINGLY THE LIBEL IN REM WAS PROPERLY
MAINTAINABLE.  PP. 182-183. 

2.  THIS CASE DOES NOT AFFORD AN APPROPRIATE INSTANCE TO PASS UPON
THE EXTENT TO WHICH EFFECT CAN BE GIVEN TO SUCH STIPULATIONS IN OCEAN
BILLS OF LADING NOT TO RESORT TO THE COURTS OF THIS COUNTRY, AND THE
WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED.  PP. 183
184. 

THE MONROSA ET AL. V. CARBON BLACK EXPORT, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, CARBON BLACK EXPORT, INC., A DELAWARE CORPORATION,
BROUGHT A LIBEL IN ADMIRALTY IN THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS FOR DAMAGE SUSTAINED TO A SHIPMENT OF CARBON BLACK
DURING AN OCEAN VOYAGE FROM HOUSTON AND NEW ORLEANS TO VARIOUS ITALIAN
PORTS.  THE LIBEL WAS ONE IN REM AGAINST THE VESSEL IN QUESTION, THE
S.S. MONROSA, THEN IN THE PORT OF HOUSTON ON ANOTHER VOYAGE, AND IN
PERSONAM AGAINST THE MONROSA'S OWNER, NAVIGAZIONE ALTA ITALIA, AN
ITALIAN CORPORATION.  THE LATTER FILED AN APPEARANCE IN RESPONSE TO THE
LIBEL IN PERSONAM, AND, AS OWNER OF THE VESSEL, FILED A CLAIM TO IT,
AND PRAYED TO DEFEND THE LIBEL IN REM.  IN RESPECT TO THE LIBEL IN REM,
A STIPULATION TO ABIDE THE DECREE, IN THE PENAL SUM OF $100,000, WAS
FILED BY THE CLAIMANT AND THE NATIONAL SURETY COMPANY, ITS SURETY, AND
APPROVED BY THE PRESENT RESPONDENT.  NAVIGAZIONE ALTA ITALIA THEN MOVED
THAT THE DISTRICT COURT DECLINE JURISDICTION OVER THE CAUSE, ON THE
GROUNDS THAT THE PARTIES HAD AGREED, BY A PROVISION IN THE BILLS OF
LADING COVERING THE SHIPMENT, THAT CONTROVERSIES IN REGARD TO CARGO
DAMAGE SHOULD BE SETTLED ONLY IN THE COURTS OF GENOA, ITALY.  THE
DISTRICT COURT GRANTED THE MOTION, SUBJECT TO THE FILING OF A BOND BY
NAVIGAZIONE ALTA ITALIA IN THE SUM OF $100,000 TO RESPOND TO WHATEVER
JUDGMENT MIGHT FINALLY BE RENDERED ON THE CAUSE OF ACTION IN QUESTION. 
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED.  IT FOUND THE
PROVISION IN THE BILL OF LADING IN TERMS INAPPLICABLE TO SUITS IN REM,
AND IT DECLINED TO ENFORCE ITS TERMS TO REQUIRE A DISMISSAL OF THE
LIBEL IN PERSONAM.  254 F.2D 297.  WE GRANTED CERTIORARI, 358 U.S. 809,
BECAUSE OF AN INDICATED CONFLICT IN PRINCIPLE BETWEEN THE FIFTH
CIRCUIT'S VIEWS AS TO ENFORCEABILITY OF SUCH PROVISIONS AND THOSE TAKEN
BY THE SECOND CIRCUIT, PRIMARILY IN WILLIAM H. MULLER & CO. V. SWEDISH
AMERICAN LINE LTD., 224 F.2D 806. 

WE DO NOT BELIEVE THAT THIS CASE AFFORDS US AN APPROPRIATE INSTANCE
TO PASS UPON THE EXTENT TO WHICH EFFECT CAN BE GIVEN TO SUCH
STIPULATIONS IN OCEAN BILLS OF LADING NOT TO RESORT TO THE COURTS OF
THIS COUNTRY.  THE PROVISION IN THIS CASE WAS ONE OF MANY PRINTED
PROVISIONS IN A FORM BILL OF LADING PREPARED BY THE CARRIER AND
PRESENTED BY IT FOR USE IN SHIPMENTS ON ITS VESSEL.  IT READS: 

"27. - ALSO, THAT NO LEGAL PROCEEDINGS MAY BE BROUGHT AGAINST THE
CAPTAIN OR SHIPOWNERS OR THEIR AGENTS IN RESPECT TO ANY LOSS OF OR
DAMAGE TO ANY GOODS HEREIN SPECIFIED EXCEPT IN GENOA, IT BEING
UNDERSTOOD AND AGREED THAT EVERY OTHER TRIBUNAL IN THE PLACE OR PLACES
WHERE THE GOODS WERE SHIPPED OR LANDED IS INCOMPETENT, NOT WITHSTANDING
THAT THE SHIP MAY BE LEGALLY REPRESENTED THERE." 

WE FIND OURSELVES IN AGREEMENT WITH THE VIEWS OF THE COURT OF APPEALS
BELOW THAT THIS CLAUSE SHOULD NOT BE READ AS LIMITING THE MAINTENANCE
OF AN ACTION IN REM, CF. THE MAGGIE HAMMOND, 9 WALL.  435, 449-450,
AGAINST THE VESSEL TO ENFORCE A MARITIME LIEN FOR PROPER CARRIAGE.  THE
INITIAL WORDS ARE PARTICULARLY APPROPRIATE TO A RESTRICTION OF THE
CLAUSE TO IN PERSONAM ACTIONS, AND THE REST OF THE LANGUAGE IS
INTELLIGIBLE ON THIS PREMISE.*  IN ACCORDANCE WITH THE FAMILIAR RULE IN
SUCH CIRCUMSTANCES, WE WILL NOT STRETCH THE LANGUAGE WHEN THE PARTY
DRAFTING SUCH A FORM CONTRACT HAS NOT INCLUDED A PROVISION IT EASILY
MIGHT HAVE.  THE CALEDONIA, 157 U.S. 124, 137; THE MAJESTIC, 166 U.S.
375, 386; COMPANIA DE NAVIGACION LA FLECHA V. BRAUER, 168 U.S. 104,
118.  CONSIDERATIONS INVOLVED IN CONSTRUING EXEMPTIONS FROM CARRIERS'
LIABILITY PROVIDED BY ACTS OF CONGRESS ARE, WE THINK, QUITE DIFFERENT. 
SEE CONSUMERS IMPORT CO. V. KABUSHIKI KAISHA KAWASAKI ZOSENJO, 320 U.S.
249.  IT IS A FORM CONTRACT, NOT A STATUTE, THAT WE CONSTRUE HERE. 

*WE NOTE THAT IN ANOTHER PLACE THE BILL OF LADING MAKES SPECIFIC
RECOGNITION OF SUITS BOTH IN REM AND IN PERSONAM.  CLAUSE 35 PROVIDES: 

"35. - IN ANY EVENT THE CARRIER AND THE SHIP SHALL BE DISCHARGED FROM
ALL LIABILITY IN RESPECT OF LOSS OR DAMAGE UNLESS SUIT IS BROUGHT
WITHIN ONE YEAR AFTER THE DELIVERY OF THE GOODS OR THE DATE WHEN THE
GOODS SHOULD HAVE BEEN DELIVERED.  SUIT SHALL NOT BE DEEMED BROUGHT
UNTIL JURISDICTION SHALL HAVE BEEN OBTAINED OVER THE CARRIER AND/OR THE
SHIP BY SERVICE OF PROCESS OR BY AN AGREEMENT TO APPEAR." 

WHILE THE FIRST SENTENCE IS VERBATIM FROM SEC. 3(6) OF THE CARRIAGE
OF GOODS BY SEA ACT, 49 STAT. 1209, 46 U.S.C. SEC. 1303(6), THE
LANGUAGE NEVERTHELESS REINFORCES THE FACT THAT IF BOTH CATEGORIES OF
SUIT WERE TO BE INCLUDED UNDER CLAUSE 27, APT WORDS TO ACCOMPLISH THIS
WERE READILY AVAILABLE, AND WERE IN FACT USED IN ANOTHER CLAUSE OF THE
BILL. 

ACCORDINGLY, AFTER ORAL ARGUMENT, WE HAVE CONCLUDED THAT THE COURT OF
APPEALS WAS CORRECT IN HOLDING THAT THE LIBEL IN REM WAS PROPERLY
MAINTAINABLE.  BOTH PARTIES APPROVED A SECURED STIPULATION TO RELEASE
THE VESSEL FROM SEIZURE UNDER THE LIBEL, IN AN AMOUNT SUBSTANTIALLY THE
SAME AS THE RECOVERY DEMANDED BY THE LIBELLANT.  THIS SAME AMOUNT THE
DISTRICT COURT DENOMINATED AS PROPER SECURITY AGAINST A RECOVERY
ELSEWHERE.  WE NEED NOT CONJURE UP DOUBTS IN THIS REGARD THAT THE
PARTIES NEVER EXPRESSED.  WHILE THE PARTIES WERE ENTITLED TO HAVE THE
JUDGMENTS OF THE COURTS BELOW AS TO WHETHER THE LIBEL IN PERSONAM WAS
ALSO MAINTAINABLE, WE DO NOT BELIEVE IT A PROPER EXERCISE OF OUR
DISCRETIONARY JURISDICTION TO PASS ON THAT ASPECT OF THE CASE, WHICH
ALONE PRESENTS THE QUESTION WHICH LED US TO GRANT CERTIORARI.  IT
APPEARS THAT IN ANY EVENT THE RESPONDENT WILL BE ABLE TO TRY ITS CLAIM
IN THE DISTRICT COURT. 

IN THE LIGHT OF THESE CIRCUMSTANCES, WHICH "WERE NOT  ...  FULLY
APPREHENDED AT THE TIME CERTIORARI WAS GRANTED," FERGUSON V. MOORE
MCCORMACK LINES, INC., 352 U.S. 521, 559 (SEPARATE OPINION), THE WRIT
OF CERTIORARI WILL BE DISMISSED AS IMPROVIDENTLY GRANTED.  RICE V.
SIOUX CITY MEMORIAL PARK CEMETERY, INC., 349 U.S. 70, 75; GOINS V.
UNITED STATES, 306 U.S. 622; MOOR V. TEXAS & NEW ORLEANS R. CO., 297
U.S. 101; SOUTHERN POWER CO. V. NORTH CAROLINA PUBLIC SERVICE CO., 263
U.S. 508.  CF. HAMMERSTEIN V. SUPERIOR COURT OF CALIFORNIA, 341 U.S.
491, 492; MCCARTHY V. BRUNER, 323 U.S. 673; LAYNE & BOWLER CORP. V.
WESTERN WELL WORKS, INC., 261 U.S. 387, 392-393; TYRRELL V. DISTRICT OF
COLUMBIA, 243 U.S. 1.  EXAMINATION OF A CASE ON THE MERITS, ON ORAL
ARGUMENT, MAY BRING INTO "PROPER FOCUS" A CONSIDERATION WHICH, THOUGH
PRESENT IN THE RECORD AT THE TIME OF GRANTING THE WRIT, ONLY LATER
INDICATES THAT THE GRANT WAS IMPROVIDENT.  SEE RICE V. SIOUX CITY
MEMORIAL PARK CEMETERY, INC., SUPRA, AT 73.  WHILE THIS COURT DECIDES
QUESTIONS OF PUBLIC IMPORTANCE, IT DECIDES THEM IN THE CONTEXT OF
MEANINGFUL LITIGATION.  ITS FUNCTION IN RESOLVING CONFLICTS AMONG THE
COURTS OF APPEALS IS JUDICIAL, NOT SIMPLY ADMINISTRATIVE OR
MANAGERIAL.  RESOLUTION HERE OF THE EXTENT TO WHICH THESE BILL OF
LADING PROVISIONS MAY BE GIVEN EFFECT BY OUR COURTS CAN AWAIT A DAY
WHEN THE ISSUE IS POSED LESS ABSTRACTLY.  WRIT OF CERTIORARI
DISMISSED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
WHITTAKER, AND MR. JUSTICE STEWART JOIN, DISSENTING. 

I CANNOT AGREE WITH THE COURT'S VIEW THAT CLAUSE 27 OF THE BILL OF
LADING, FIXING GENOA, ITALY, AS THE FORUM FOR LEGAL PROCEEDINGS IN
RESPECT OF LOSS OR DAMAGE TO THE GOODS SHIPPED, APPLIES ONLY TO ACTIONS
IN PERSONAM, AND NOT TO ACTIONS IN REM.  THE COURT'S READING OF THE
CLAUSE IMPUTES TO THE PARTIES THE DRAWING OF A DISTINCTION THE PURPOSE
OF WHICH IS IMPOSSIBLE TO GRASP.  AS THIS COURT SAID IN CONSUMERS
IMPORT CO. V. KABUSHIKI KAISHA KAWASAKI ZOSENJO, 320 U.S. 249, 253, IN
REFERRING TO AN EARLIER CASE, "THE COURT SAID THAT 'TO SAY THAT AN
OWNER IS NOT LIABLE, BUT THAT HIS VESSEL IS LIABLE, SEEMS TO US LIKE
TALKING IN RIDDLES.'  THE RIDDLE AFTER MORE THAN HALF A CENTURY
REPEATED TO US IN DIFFERENT CONTEXT DOES NOT APPEAR TO US TO HAVE
IMPROVED WITH AGE." 

APART FROM THIS, HOWEVER, I SEE NO JUSTIFICATION FOR OUR NOT REACHING
THE QUESTION OF THE VALIDITY OF CLAUSE 27 WITH RESPECT TO IN PERSONAM
ACTIONS, AN ISSUE WHICH STILL REMAINS IN THE CASE EVEN ON THE COURT'S
VIEW THAT THE CLAUSE DOES NOT EMBRACE IN REM PROCEEDINGS.  THAT
QUESTION, OF COURSE, PRESENTS NO CONSTITUTIONAL ISSUE WHICH WE SHOULD
STRIVE TO AVOID, BUT IS ONLY ONE OF ORDINARY COMMERCIAL ADMIRALTY LAW. 
IT IS THE ONLY QUESTION WHICH LED US TO TAKE THIS CASE FOR REVIEW.  AND
THE ISSUE HAS BEEN FULLY BRIEFED AND ARGUED BY THE PARTIES.  TO BE
SURE, IT IS POSSIBLE THAT THIS QUESTION IS NOT OF GREAT IMPORTANCE TO
THE LITIGANTS IF THE IN REM ACTION CAN IN ANY CASE GO FORWARD IN
TEXAS.  BUT THE VERY FACT THAT RESPONDENT CHOSE TO INSTITUTE AND
CONTINUE ACTIONS BOTH IN PERSONAM AND IN REM SHOWS THAT IT WAS NOT
CONTENT TO RELY SOLELY ON THE VESSEL'S SURETY, AND CAUTIONS AGAINST OUR
NOW GRATUITOUSLY TREATING THE IN PERSONAM ACTION AS PURELY ACADEMIC. 
MOREOVER, REVIEW BY CERTIORARI, AS CHIEF JUSTICE HUGHES ONCE PUT IT, IS
"IN THE INTEREST OF THE LAW, ITS APPROPRIATE EXPOSITION AND
ENFORCEMENT, NOT IN THE MERE INTEREST OF THE LITIGANTS."* 

*S. REP. NO. 711, 75TH CONG., 1ST SESS., P. 39. 

FURTHERMORE, I DO NOT THINK THIS CAN BE CALLED A CASE WHERE THE
CIRCUMSTANCES PRESENTLY CONFRONTING US "WERE NOT MANIFEST OR FULLY
APPREHENDED AT THE TIME CERTIORARI WAS GRANTED."  SEE FERGUSON V. MOORE
MCCORMACK LINES, INC., 352 U.S. 521, 559 (SEPARATE OPINION).  THE
QUESTION OF THE CONSTRUCTION OF THE CLAUSE, AND THAT OF ITS VALIDITY,
WERE BOTH FULLY DISCUSSED BY THE PARTIES IN THEIR CERTIORARI PAPERS. 
INDEED, IT WAS APPARENT ON THE SURFACE OF THINGS THAT WE MIGHT FIND
OURSELVES IN THE VERY POSITION WE NOW ARE, SINCE THE COURT OF APPEALS
HAD ITSELF FOUND CLAUSE 27 INAPPLICABLE TO IN REM PROCEEDINGS AND HAD
THEN GONE ON TO CONSIDER THE VALIDITY OF THE CLAUSE AS RELATED TO IN
PERSONAM ACTIONS. 

AVOIDANCE OF DECISION NOW ON A QUESTION WHICH IS OBVIOUSLY BOUND TO
RECUR SEEMS TO ME TO BE BOTH UNSATISFACTORY AND UNSOUND JUDICIAL
ADMINISTRATION.  THE COURSE WHICH THE COURT HAS TAKEN SERVES ONLY TO
LEAVE THE LOWER FEDERAL COURTS IN CONFUSION AND UNCERTAINTY AND TO MAKE
IT NECESSARY FOR US TO MORTGAGE OUR FUTURE AND CONSTANTLY MOUNTING
CALENDARS WITH A QUESTION WHICH WE COULD AND SHOULD DECIDE TODAY.  AS
THE COURT HAS NOT SPOKEN ON THAT QUESTION IT WOULD BE INAPPROPRIATE FOR
ME TO EXPRESS MY OWN VIEW UPON IT.
..END :





















ABBATE V. UNITED STATES 359 U.S. 187 


NO. 7.  ARGUED OCTOBER 22, 1958 - DECIDED MARCH 30, 1959 - 247 F.2D 410,
AFFIRMED. 


INDICTED IN AN ILLINOIS STATE COURT FOR VIOLATING AN ILLINOIS STATUTE
MAKING IT A CRIME TO CONSPIRE TO INJURE OR DESTROY THE PROPERTY OF
ANOTHER, PETITIONERS PLEADED GUILTY, AND EACH WAS SENTENCED TO THREE
MONTHS' IMPRISONMENT.  THEREAFTER, BECAUSE OF THE SAME CONSPIRACY, THEY
WERE INDICTED, TRIED AND CONVICTED IN A FEDERAL DISTRICT COURT FOR
VIOLATING 18 U.S.C. SEC. 371 BY CONSPIRING TO VIOLATE 18 U.S.C. SEC.
1362, WHICH FORBIDS THE INJURY OR DESTRUCTION OF COMMUNICATIONS
FACILITIES "OPERATED OR CONTROLLED BY THE UNITED STATES."  HELD:  THEIR
FEDERAL PROSECUTION WAS NOT BARRED UNDER THE DOUBLE JEOPARDY CLAUSE OF
THE FIFTH AMENDMENT BY THEIR EARLIER CONVICTION IN THE STATE COURT. 
UNITED STATES V. LANZA, 260 U.S. 377.  PP. 187-196. 

ABBATE ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

DURING A STRIKE AGAINST THE SOUTHERN BELL TELEPHONE AND TELEGRAPH
COMPANY, THE PETITIONERS AND ONE MCLEOD WERE SOLICITED IN CHICAGO,
ILLINOIS, BY A UNION OFFICIAL, SHELBY, TO DYNAMITE FACILITIES OF THE
TELEPHONE COMPANY LOCATED IN THE STATES OF MISSISSIPPI, TENNESSEE, AND
LOUISIANA.  THE FOUR MEN MET IN CHICAGO WHERE SHELBY GAVE THE
PETITIONERS AND MCLEOD THE PLANS OF THE FACILITIES TO BE DYNAMITED AND
INSTRUCTED THEM AS TO THE METHOD TO BE USED.  AFTER SHELBY LEFT CHICAGO
THE PETITIONERS TOLD MCLEOD THAT THEY WOULD NOT GO THROUGH WITH THE
PLAN.  MCLEOD, HOWEVER, OBTAINED DYNAMITE AND WENT TO MISSISSIPPI TO
DESTROY TELEPHONE COMPANY FACILITIES LOCATED THERE.  THE PETITIONERS
THEREUPON DISCLOSED THE PLOT TO THE TELEPHONE COMPANY AND THE CHICAGO
POLICE. 

THE PETITIONERS, WITH SHELBY AND MCLEOD, WERE SUBSEQUENTLY INDICTED
BY THE STATE OF ILLINOIS FOR VIOLATING AN ILLINOIS STATUTE MAKING IT A
CRIME TO CONSPIRE TO INJURE OR DESTROY THE PROPERTY OF ANOTHER.  (FN1)
THE INDICTMENT DESCRIBES THE PROPERTY AS "COMMUNICATION FACILITIES
BELONGING TO THE SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY" AND
"BELONGING TO THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY."  THE
PETITIONERS ENTERED PLEAS OF GUILTY TO THE INDICTMENT AND WERE EACH
SENTENCED TO THREE MONTHS' IMPRISONMENT. 

THEREAFTER INDICTMENTS WERE RETURNED IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI AGAINST THE PETITIONERS
AND SHELBY, AND ALSO AGAINST ONE PERRY WHO POINTED OUT TO MCLEOD THE
PROPERTY TO BE DYNAMITED.  THIS INDICTMENT DOES NOT REFER TO THE
FACILITIES AS BELONGING TO THE TELEPHONE COMPANIES, BUT CHARGES THE
OFFENSE OF VIOLATING 18 U.S.C. SEC. 371 (FN2) BY CONSPIRING TO DESTROY,
CONTRARY TO 18 U.S.C. SEC.  1362, (FN3) "CERTAIN WORKS, PROPERTY AND
MATERIAL KNOWN AS COAXIAL REPEATER STATIONS AND MICRO-WAVE TOWERS  ...
LOCATED IN THE STATES OF MISSISSIPPI, TENNESSEE AND LOUISIANA 

...  WHICH WERE ESSENTIAL AND INTEGRAL PARTS OF SYSTEMS AND MEANS OF
COMMUNICATION OPERATED AND CONTROLLED BY THE UNITED STATES."  MCLEOD
CONFESSED TO HIS PART IN THE CONSPIRACY AND TESTIFIED ON THE FEDERAL
TRIAL TO PETITIONERS' ACTS OF PARTICIPATION IN THE CONSPIRACY.  THESE
SAME ACTS WERE THE BASIS OF THE ILLINOIS CONVICTIONS.  THE GOVERNMENT
ALSO INTRODUCED PROOF THAT THE STRATEGIC AIR COMMAND, THE CIVIL
AERONAUTICS ADMINISTRATION, THE NAVY AND OTHER FEDERAL AGENCIES HAVE
THE EXCLUSIVE USE OF SOME OF THE CIRCUITS WITHIN THE COAXIAL CABLES
CARRIED BY THE REPEATER STATIONS AND MICRO-WAVE TOWERS THAT WERE TO BE
DESTROYED.  THE FEDERAL JURY FOUND THE FOUR DEFENDANTS GUILTY AS
CHARGED.  ON APPEAL THE FIFTH CIRCUIT COURT OF APPEALS REVERSED THE
CONVICTIONS OF SHELBY AND PERRY FOR ERROR IN THE ADMISSION OF EVIDENCE,
BUT AFFIRMED THE CONVICTIONS OF THE PETITIONERS, 247 F.2D 410.  WE
GRANTED CERTIORARI LIMITED TO CONSIDERATION OF THE CLAIM THAT THE
FEDERAL PROSECUTIONS, BASED ON THE SAME ACTS AS WERE THE PRIOR STATE
CONVICTIONS, PLACED PETITIONERS TWICE IN JEOPARDY CONTRARY TO THE FIFTH
AMENDMENT, 355 U.S. 902. 

IN BARTKUS V. ILLINOIS, ANTE, P. 121, ALSO DECIDED TODAY, THE ORDER
OF THE PROSECUTIONS WAS THE REVERSE OF THE ORDER IN THIS CASE.  HERE
THE FEDERAL PROSECUTION CAME AFTER THE ILLINOIS CONVICTIONS.  THUS THIS
CASE SQUARELY RAISES THE QUESTION WHETHER A FEDERAL PROSECUTION OF
DEFENDANTS ALREADY PROSECUTED FOR THE SAME ACTS BY A STATE SUBJECTS
THOSE DEFENDANTS "FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF
LIFE OR LIMB" IN VIOLATION OF THE FIFTH AMENDMENT.  (FN4) 

WE DO NOT WRITE ON A CLEAN SLATE IN DECIDING THIS QUESTION.  AS EARLY
AS 1820 IN HOUSTON V. MOORE, 5 WHEAT.  1, IT WAS RECOGNIZED THAT THIS
ISSUE WOULD ARISE FROM THE CONCURRENT APPLICATION OF STATE AND FEDERAL
LAWS.  (FN5)  DURING THE FOLLOWING THREE DECADES A NUMBER OF STATE
COURTS REACHED DIFFERING CONCLUSIONS AS TO WHETHER A STATE PROSECUTION
WOULD BAR A SUBSEQUENT FEDERAL PROSECTUTION OF THE SAME PERSON FOR THE
SAME ACTS.  (FN6)  AGAINST THIS BACKGROUND THIS COURT THOROUGHLY
CONSIDERED THE QUESTION IN THREE CASES BETWEEN 1847 AND 1852.  IN FOX
V. OHIO, 5 HOW.  410, THE PETITIONER HAD BEEN CONVICTED OF PASSING A
COUNTERFEIT COIN OF THE UNITED STATES WITHIN THE STATE OF OHIO IN
VIOLATION OF A STATE STATUTE.  SHE CONTENDED THAT THE FIFTH AMENDMENT
PROHIBITED SUCCESSIVE STATE AND FEDERAL PROSECUTIONS FOR THE SAME ACTS,
AND THEREFORE THAT A PROSECUTION UNDER THE OHIO STATUTE WOULD PREVENT
FEDERAL AUTHORITIES FROM PROSECUTING THE SAME ACT UNDER THE FEDERAL
COUNTERFEITING LAWS.  THUS, THE ARGUMENT CONTINUED, THE COURT SHOULD
DECLARE THE OHIO STATUTE UNCONSTITUTIONAL UNDER THE SUPREMACY CLAUSE IN
ORDER TO PRESERVE THE EFFECTIVENESS OF FEDERAL LAW ENFORCEMENT. 
HOUSTON V. MOORE AND SOME OF THE LEADING STATE AUTHORITIES BEARING ON
WHETHER THE FIFTH AMENDMENT APPLIED TO SUCCESSIVE STATE AND FEDERAL
PROSECUTIONS WERE ARGUED TO THE COURT.  ALL MEMBERS OF THE COURT AGREED
THAT THE FIFTH AMENDMENT WOULD NOT PROHIBIT A FEDERAL PROSECUTION EVEN
THOUGH BASED ON THE SAME ACT OF PASSING THE COUNTERFEIT COIN THAT
RESULTED IN THE STATE PROSECUTION.   THERE WAS A DIVISION, HOWEVER, AS
TO WHAT DISPOSITION OF THE CASE WAS REQUIRED BY THIS CONCLUSION.  THE
MAJORITY REASONED THAT SINCE THE OHIO PROSECUTION WOULD NOT RENDER THE
FEDERAL GOVERNMENT POWERLESS TO ENFORCE ITS COUNTERFEIT LAWS THERE WAS
NO BASIS FOR DECLARING THE OHIO STATUTE UNCONSTITUTIONAL UNDER THE
SUPREMACY CLAUSE.  MR. JUSTICE MCLEAN, DISSENTING, THOUGHT THAT SINCE
"THE PUNISHMENT UNDER THE STATE LAW WOULD BE NO BAR TO A PROSECUTION
UNDER THE LAW OF CONGRESS," 5 HOW., AT 439, THIS UNDESIRABLE RESULT
SHOULD BE AVOIDED BY DECLARING THE STATE STATUTE UNCONSTITUTIONAL, FOR,
HE SAID, "NOTHING CAN BE MORE REPUGNANT  ...  THAN TWO PUNISHMENTS FOR
THE SAME ACT," ID., AT 440.  THREE YEARS LATER, IN UNITED STATES V.
MARIGOLD, 9 HOW.  560, A UNANIMOUS COURT AFFIRMED A CONVICTION UNDER
THE FEDERAL COUNTERFEITING STATUTE THAT WAS DISCUSSED IN FOX.  THE
COURT, IN HOLDING THAT A STATE AND A FEDERAL STATUTE COULD BOTH APPLY
TO THE SAME CONDUCT, ACCEPTED THE CONCLUSION OF FOX THAT "THE SAME ACT
MIGHT  ...  CONSTITUTE AN OFFENCE AGAINST BOTH THE STATE AND FEDERAL
GOVERNMENTS, AND MIGHT DRAW TO ITS COMMISSION THE PENALTIES DENOUNCED
BY EITHER  ...  ."   9 HOW., AT 569. 

THE THIRD CASE, MOORE V. ILLINOIS, 14 HOW.  13, GAVE CLEAR EXPRESSION
TO THE EMERGING PRINCIPLE THAT THE FIFTH AMENDMENT DID NOT APPLY TO A
FEDERAL PROSECUTION SUBSEQUENT TO A STATE PROSECUTION OF THE SAME
PERSON FOR THE SAME ACTS.  THAT CASE INVOLVED A CONVICTION OF MOORE
UNDER AN ILLINOIS STATUTE FOR HARBORING AN ESCAPED SLAVE.  A FEDERAL
STATUTE OUTLAWED THE SAME ACT AS AN INTERFERENCE WITH THE RIGHTS OF THE
OWNER OF THE SLAVE.  MOORE URGED THAT THE ILLINOIS STATUTE WAS VOID "AS
IT SUBJECTS THE DELINQUENT TO A DOUBLE PUNISHMENT FOR A SINGLE
OFFENCE," 14 HOW., AT 19.  THE COURT REJECTED THIS ARGUMENT, SAYING: 

"EVERY CITIZEN OF THE UNITED STATES IS ALSO A CITIZEN OF A STATE OR
TERRITORY.  HE MAY BE SAID TO OWE ALLEGIANCE TO TWO SOVEREIGNS, AND MAY
BE LIABLE TO PUNISHMENT FOR AN INFRACTION OF THE LAWS OF EITHER.  THE
SAME ACT MAY BE AN OFFENCE OR TRANSGRESSION OF THE LAWS OF BOTH  ...  .
THAT EITHER OR BOTH MAY (IF THEY SEE FIT) PUNISH SUCH AN OFFENDER,
CANNOT BE DOUBTED.  YET IT CANNOT BE TRULY AVERRED THAT THE OFFENDER
HAS BEEN TWICE PUNISHED FOR THE SAME OFFENCE; BUT ONLY THAT BY ONE ACT
HE HAS COMMITTED TWO OFFENCES, FOR EACH OF WHICH HE IS JUSTLY
PUNISHABLE.  HE COULD NOT PLEAD THE PUNISHMENT BY ONE IN BAR TO A
CONVICTION BY THE OTHER; CONSEQUENTLY, THIS COURT HAS DECIDED, IN THE
CASE OF FOX V. THE STATE OF OHIO,  ...  THAT A STATE MAY PUNISH THE
OFFENCE OF UTTERING OR PASSING FALSE COIN, AS A CHEAT OR FRAUD
PRACTISED ON ITS CITIZENS; AND, IN THE CASE OF THE UNITED STATES V.
MARIGOLD,  ...  THAT CONGRESS, IN THE PROPER EXERCISE OF ITS AUTHORITY,
MAY PUNISH THE SAME ACT AS AN OFFENCE AGAINST THE UNITED STATES."  14
HOW., AT 20. 

JUSTICE MCLEAN AGAIN DISSENTED ON THE GROUND OF HIS DISSENT IN FOX,
NAMELY, THAT THE STATE LAW SHOULD BE DECLARED INVALID FOR THE VERY
REASON THAT "THE CONVICTION AND PUNISHMENT UNDER THE STATE LAW WOULD BE
NO BAR TO A PROSECUTION UNDER THE LAW OF CONGRESS."  ID., AT 21. 

THE REASONING OF THE COURT IN THESE THREE CASES WAS SUBSEQUENTLY
ACCEPTED BY THIS COURT, IN DICTUM, IN THE FOLLOWING CASES:  UNITED
STATES V. CRUIKSHANK, 92 U.S. 542, 550; COLEMAN V. TENNESSEE, 97 U.S.
509, 518; EX PARTE SIEBOLD, 100 U.S. 371, 389; UNITED STATES V. ARJONA,
120 U.S. 479, 487; CROSS V. NORTH CAROLINA, 132 U.S. 131, 139; IN RE
LONEY, 134 U.S. 372, 375; PETTIBONE V. UNITED STATES, 148 U.S. 197,
209; CROSSLEY V. CALIFORNIA, 168 U.S. 640, 641; SEXTON V. CALIFORNIA,
189 U.S. 319, 322-323; MATTER OF HEFF, 197 U.S. 488, 507; GRAFTON V.
UNITED STATES, 206 U.S. 333, 353-354; SOUTHERN R. CO. V. RAILROAD
COMM'N OF INDIANA, 236 U.S. 439, 445; AND MCKELVEY V. UNITED STATES,
260 U.S. 353, 358-359.  TYPICAL OF THE STATEMENTS ADOPTING THE
PRINCIPLE IS THAT OF CHIEF JUSTICE TANEY, ON CIRCUIT, IN UNITED STATES
V. AMY, 24 FED. CAS. NO. 14,445 (C.C.D. VA. 1859), AT P. 811, THAT
"FROM THE NATURE OF OUR GOVERNMENT, THE SAME ACT MAY BE AN OFFENCE
AGAINST THE LAWS OF THE UNITED STATES AND ALSO OF A STATE, AND BE
PUNISHABLE IN BOTH." 

CULMINATING THIS DEVELOPMENT WAS UNITED STATES V. LANZA, 260 U.S.
377, WHERE THE ISSUE WAS DIRECTLY PRESENTED TO THIS COURT.  LANZA WAS
CONVICTED BY THE STATE OF WASHINGTON FOR "MANUFACTURING, TRANSPORTING,
AND HAVING IN POSSESSION" A QUANTITY OF LIQUOR IN VIOLATION OF A STATE
STATUTE.  HE WAS SUBSEQUENTLY CONVICTED IN A FEDERAL DISTRICT COURT OF
VIOLATING THE VOLSTEAD ACT, 41 STAT. 305, FOR PERFORMING THE SAME ACTS
WITH REGARD TO THE SAME LIQUOR.  THE COURT HELD THAT THE PRIOR STATE
CONVICTION DID NOT BAR THE FEDERAL PROSECUTION.  IT POINTED OUT THAT
THE STATE COULD CONSTITUTIONALLY MAKE LANZA'S ACTS CRIMINAL UNDER ITS
ORIGINAL POWERS RESERVED BY THE TENTH AMENDMENT, AND THE FEDERAL
GOVERNMENT COULD CONSTITUTIONALLY PROHIBIT THE ACTS UNDER THE
EIGHTEENTH AMENDMENT.  THUS THIS CASE PRESENTED THE SITUATION
HYPOTHESIZED IN FOX V. OHIO AND OTHER EARLY CASES; TWO SOVEREIGNS HAD,
WITHIN THEIR CONSTITUTIONAL AUTHORITY, PROHIBITED THE SAME ACTS, AND
EACH WAS PUNISHING A BREACH OF ITS PROHIBITION.  A UNANIMOUS COURT, IN
AN OPINION BY CHIEF JUSTICE TAFT, HELD: 

"WE HAVE HERE TWO SOVEREIGNTIES, DERIVING POWER FROM DIFFERENT
SOURCES, CAPABLE OF DEALING WITH THE SAME SUBJECT-MATTER WITHIN THE
SAME TERRITORY  ...  . EACH GOVERNMENT IN DETERMINING WHAT SHALL BE AN
OFFENSE AGAINST ITS PEACE AND DIGNITY IS EXERCISING ITS OWN
SOVEREIGNTY, NOT THAT OF THE OTHER. 

"IT FOLLOWS THAT AN ACT DENOUNCED AS A CRIME BY BOTH NATIONAL AND
STATE SOVEREIGNTIES IS AN OFFENSE AGAINST THE PEACE AND DIGNITY OF BOTH
AND MAY BE PUNISHED BY EACH.  THE FIFTH AMENDMENT, LIKE ALL THE OTHER
GUARANTIES IN THE FIRST EIGHT AMENDMENTS, APPLIES ONLY TO PROCEEDINGS
BY THE FEDERAL GOVERNMENT,  ...  AND THE DOUBLE JEOPARDY THEREIN
FORBIDDEN IS A SECOND PROSECUTION UNDER AUTHORITY OF THE FEDERAL
GOVERNMENT AFTER A FIRST TRIAL FOR THE SAME OFFENSE UNDER THE SAME
AUTHORITY."  260 U.S., AT 382. 

THE LANZA PRINCIPLE HAS BEEN ACCEPTED WITHOUT QUESTION IN HEBERT V.
LOUISIANA, 272 U.S. 312, ALSO A VOLSTEAD ACT CASE, AND IN THE FOLLOWING
CASES IN THIS COURT ARISING UNDER OTHER STATUTES: WESTFALL V. UNITED
STATES, 274 U.S. 256, 258; PUERTO RICO V. THE SHELL CO., 302 U.S. 253,
264-266; JEROME V. UNITED STATES, 318 U.S. 101, 105; SCREWS V. UNITED
STATES, 325 U.S. 91, 108.  AND SEE CALIFORNIA V. ZOOK, 336 U.S. 725,
752-753, 758 (DISSENTING OPINION).  SIMILARLY, LANZA HAS BEEN
CONSIDERED IN MANY CASES IN THE COURTS OF APPEALS TO HAVE ESTABLISHED
THE GENERAL PRINCIPLE THAT A FEDERAL PROSECUTION IS NOT BARRED BY A
PRIOR STATE PROSECUTION OF THE SAME PERSON FOR THE SAME ACTS.   (FN7) 

PETITIONER ASKS US TO OVERRULE LANZA.  WE DECLINE TO DO SO.  NO
CONSIDERATION OR PERSUASIVE REASON NOT PRESENTED TO THE COURT IN THE
PRIOR CASES IS ADVANCED WHY WE SHOULD DEPART FROM ITS FIRMLY
ESTABLISHED PRINCIPLE.  ON THE CONTRARY, UNDESIRABLE CONSEQUENCES WOULD
FOLLOW IF LANZA WERE OVERRULED.  THE BASIC DILEMMA WAS RECOGNIZED OVER
A CENTURY AGO IN FOX V. OHIO.  AS WAS THERE POINTED OUT, IF THE STATES
ARE FREE TO PROSECUTE CRIMINAL ACTS VIOLATING THEIR LAWS, AND THE
RESULTANT STATE PROSECUTIONS BAR FEDERAL PROSECUTIONS BASED ON THE SAME
ACTS, FEDERAL LAW ENFORCEMENT MUST NECESSARILY BE HINDERED.  FOR
EXAMPLE, THE PETITIONERS IN THIS CASE INSIST THAT THEIR ILLINOIS
CONVICTIONS RESULTING IN THREE MONTHS' PRISON SENTENCES SHOULD BAR THIS
FEDERAL PROSECUTION WHICH COULD RESULT IN A SENTENCE OF UP TO FIVE
YEARS.  SUCH A DISPARITY WILL VERY OFTEN ARISE WHEN, AS IN THIS CASE,
THE DEFENDANTS' ACTS IMPINGE MORE SERIOUSLY ON A FEDERAL INTEREST THAN
ON A STATE INTEREST.  BUT NO ONE WOULD SUGGEST THAT, IN ORDER TO
MAINTAIN THE EFFECTIVENESS OF FEDERAL LAW ENFORCEMENT, IT IS DESIRABLE
COMPLETELY TO DISPLACE STATE POWER TO PROSECUTE CRIMES BASED ON ACTS
WHICH MIGHT ALSO VIOLATE FEDERAL LAW.  THIS WOULD BRING ABOUT A MARKED
CHANGE IN THE DISTRIBUTION OF POWERS TO ADMINISTER CRIMINAL JUSTICE,
FOR THE STATES UNDER OUR FEDERAL SYSTEM HAVE THE PRINCIPAL
RESPONSIBILITY FOR DEFINING AND PROSECUTING CRIMES.  SEE SCREWS V.
UNITED STATES, 325 U.S. 91, 109; JEROME V. UNITED STATES, 318 U.S. 101,
104-105.  THUS, UNLESS THE FEDERAL AUTHORITIES COULD SOMEHOW INSURE
THAT THERE WOULD BE NO STATE PROSECUTIONS FOR PARTICULAR ACTS THAT ALSO
CONSTITUTE FEDERAL OFFENSES, THE EFFICIENCY OF FEDERAL LAW ENFORCEMENT
MUST SUFFER IF THE DOUBLE JEOPARDY CLAUSE PREVENTS SUCCESSIVE STATE AND
FEDERAL PROSECUTIONS.  NEEDLESS TO SAY, IT WOULD BE HIGHLY IMPRACTICAL
FOR THE FEDERAL AUTHORITIES TO ATTEMPT TO KEEP INFORMED OF ALL STATE
PROSECUTIONS WHICH MIGHT BEAR ON FEDERAL OFFENSES. 

THE CONCLUSION IS THEREFORE COMPELLED THAT THE PRIOR ILLINOIS
CONVICTION OF THE PETITIONERS DID NOT BAR THE INSTANT FEDERAL
PROSECUTION.  AFFIRMED. 

FN1  SMITH-HURD ILL. STAT. ANN. (1957 SUPP.) SEC. 139 PROVIDES IN
PERTINENT PART:  "IF ANY TWO OR MORE PERSONS CONSPIRE OR AGREE TOGETHER
...  WITH THE FRAUDULENT OR MALICIOUS INTENT WRONGFULLY AND WICKEDLY
TO INJURE THE  ...  PROPERTY OF ANOTHER  ...  THEY SHALL BE DEEMED
GUILTY OF A CONSPIRACY ...  ."  THE STATUTE APPLIES TO CONSPIRACIES
WITHIN ILLINOIS TO DESTROY PROPERTY OUTSIDE THE STATE.  SEE PEOPLE V.
BUCKMINSTER, 282 ILL. 177, 118 N.E. 497. 

FN2  U.S.C. SEC. 371 PROVIDES IN PERTINENT PART:  "IF TWO OR MORE
PERSONS CONSPIRE  ...  TO COMMIT ANY OFFENSE AGAINST THE UNITED STATES
...  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." 

FN3  THE RELEVANT PART OF 18 U.S.C. SEC. 1362 IS AS FOLLOWS:
"WHOEVER WILLFULLY OR MALICIOUSLY INJURES OR DESTROYS ANY OF THE  ...
PROPERTY  ... OF ANY  ...  TELEPHONE, OR CABLE, LINE, STATION, OR
SYSTEM, OR OTHER MEANS OF COMMUNICATION, OPERATED OR CONTROLLED BY THE
UNITED STATES  ...  ."  IS GUILTY OF A CRIME. 

FN4  THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT PROVIDES:
"NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT
IN JEOPARDY OF LIFE OR LIMB  ...  ."  THE CIRCUMSTANCES OF THIS CASE DO
NOT REQUIRE US TO CONSIDER THE SUGGESTION IN THE GOVERNMENT'S BRIEF
THAT "NO STATE PROSECUTION CAN PRECLUDE THE FEDERAL GOVERNMENT FROM
ENFORCING FEDERAL LAW."  FOR EXAMPLE, THERE IS NOTHING IN THIS RECORD
TO INDICATE ANY FEDERAL PARTICIPATION IN THE ILLINOIS PROSECUTION. 

FN5  JUSTICE JOHNSON, IN ANOTHER CASE AT THE SAME TERM, RECOGNIZED
THE RELATED PROBLEM OF THE SCOPE TO BE GIVEN THE PLEA OF AUTREFOIS
ACQUIT WHEN BASED ON AN ACQUITTAL BY THE COURTS OF ANOTHER COUNTRY. 
UNITED STATES V. FURLONG, 5 WHEAT.  184, 197. 

FN6 COMPARE, E.G., MATTISON V. STATE, 3 MO. *421, AND HENDRICK V.
COMMONWEALTH, 5 LEIGH (VA.)  707, WITH E.G., STATE V. RANDALL, 2 AIKENS
(VT.)  89, AND HARLAN V. PEOPLE, 1 DOUGLASS' REP. (MICH.) 207. 

FN7  SEE, E.G., RIOS V. UNITED STATES, 256 F.2D 173 (C.A. 9TH CIR.
1958); SMITH V. UNITED STATES, 243 F.2D 877 (C.A. 6TH CIR. 1957);
JOLLEY V. UNITED STATES, 232 F.2D 83 (C.A. 5TH CIR. 1956); UNITED
STATES V. LEVINE, 129 F.2D 745 (C.A.2D CIR. 1942). 

BY MR. JUSTICE BRENNAN. 

THE GOVERNMENT, IN ITS BRIEF AND ON ORAL ARGUMENT IN THIS CASE, URGED
THAT THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE AFFIRMED ON AN
ALTERNATIVE GROUND TO THAT UPON WHICH THE COURT RESTS THE DECISION. 
THE GOVERNMENT ARGUED THAT IT WAS UNNECESSARY TO DELIMIT THE
APPLICATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO
SUCCESSIVE STATE AND FEDERAL PROSECUTIONS OF THE SAME ACTS BEYOND
HOLDING THAT THE CLAUSE DOES NOT APPLY WHEN THOSE PROSECUTIONS, AS IN
THIS CASE, ARE UNDER STATUTES WHICH REQUIRE DIFFERENT EVIDENCE FOR A
CONVICTION AND WHICH PROTECT DIFFERENT INTERESTS.  THE CONTENTION IS
THAT IN THIS CASE ADDITIONAL EVIDENCE IS NECESSARY TO CONVICT UNDER THE
FEDERAL STATUTE, NAMELY, PROOF THAT FEDERAL PROPERTY WAS KNOWINGLY TO
BE DESTROYED, AND THAT THE TWO STATUTES ARE DESIGNED TO PROTECT
DIFFERENT INTERESTS, THE STATE STATUTE TO PROTECT "THE SANCTITY OF
PRIVATELY-OWNED PROPERTY" AND THE FEDERAL STATUTE TO PREVENT INJURY TO
"MEANS OF COMMUNICATION, OPERATED OR CONTROLLED BY THE UNITED STATES." 
THE GIST OF THE ARGUMENT IS THAT TWO PROSECUTIONS ARE NOT "FOR THE SAME
OFFENSE" WITHIN THE MEANING OF THE FIFTH AMENDMENT WHEN THEY ARE BASED
UPON THE VIOLATION OF TWO STATUTES DESIGNED TO VINDICATE DIFFERENT
GOVERNMENTAL INTERESTS AND REQUIRING DIFFERENT EVIDENCE TO SUPPORT
CONVICTIONS.  ALTHOUGH THE COURT CONSIDERED THAT IT WAS UNNECESSARY TO
DISCUSS THIS SUGGESTED GROUND FOR DECISION, I CONSIDER ITS IMPLICATIONS
TO BE SO DISTURBING AS TO REQUIRE COMMENT.  (FN1)  I CANNOT ESCAPE THE
FACT THAT THIS REASONING WOULD APPLY EQUALLY IF EACH OF TWO SUCCESSIVE
FEDERAL PROSECUTIONS BASED ON THE SAME ACTS WAS BROUGHT UNDER A
DIFFERENT FEDERAL STATUTE, AND EACH STATUTE WAS DESIGNED TO PROTECT A
DIFFERENT FEDERAL INTEREST.  INDEED, THE GOVERNMENT SUPPORTS ITS
ARGUMENT BY CITING BLOCKBURGER V. UNITED STATES, 284 U.S. 299; GORE V.
UNITED STATES, 357 U.S. 386; AND PINKERTON V. UNITED STATES, 328 U.S.
640, CASES WHICH INVOLVED ONLY FEDERAL PROSECUTIONS, AND HOAG V. NEW
JERSEY, 356 U.S. 464, WHICH INVOLVED SUCCESSIVE PROSECUTIONS BY THE
SAME STATE.  THE ARGUMENT THEN OBVIOUSLY IS THAT THE MERE FACT THAT
THERE ARE TWO STATUTES WHICH VINDICATE DIFFERENT INTERESTS AND REQUIRE
DIFFERENT EVIDENCE OF ITSELF MEANS THAT THE FIFTH AMENDMENT DOES NOT
PROHIBIT SUCCESSIVE PROSECUTIONS OF THE SAME ACTS UNDER THE RESPECTIVE
STATUTES. 

HOWEVER, WHATEVER THE CASE UNDER THE FOURTEENTH AMENDMENT AS TO
SUCCESSIVE STATE PROSECUTIONS, HOAG V. NEW JERSEY, SUPRA, OR UNDER THE
FIFTH AMENDMENT AS TO CONSECUTIVE FEDERAL SENTENCES IMPOSED UPON ONE
TRIAL, E.G., GORE V. UNITED STATES, SUPRA, I THINK IT CLEAR THAT
SUCCESSIVE FEDERAL PROSECUTIONS OF THE SAME PERSON BASED ON THE SAME
ACTS ARE PROHIBITED BY THE FIFTH AMENDMENT EVEN THOUGH BROUGHT UNDER
FEDERAL STATUTES REQUIRING DIFFERENT EVIDENCE AND PROTECTING DIFFERENT
FEDERAL INTERESTS.  IT IS TRUE THAT THIS COURT HAS SAID:  "WHERE THE
SAME ACT OR TRANSACTION CONSTITUTES A VIOLATION OF TWO DISTINCT
STATUTORY PROVISIONS, THE TEST TO BE APPLIED TO DETERMINE WHETHER THERE
ARE TWO OFFENSES OR ONLY ONE, IS WHETHER EACH PROVISION REQUIRES PROOF
OF A FACT WHICH THE OTHER DOES NOT."  BLOCKBURGER V. UNITED STATES, 284
U.S. 299, 304.  BUT, SO FAR AS APPEARS, NEITHER THIS "SAME EVIDENCE"
TEST NOR A "SEPARATE INTERESTS" TEST HAS BEEN SANCTIONED BY THIS COURT
UNDER THE FIFTH AMENDMENT EXCEPT IN CASES IN WHICH CONSECUTIVE
SENTENCES WERE IMPOSED ON CONVICTION OF SEVERAL OFFENSES AT ONE TRIAL. 
(FN2)  THE ACCUSED, ALTHOUGH PUNISHED SEPARATELY AND CUMULATIVELY FOR
VARIOUS ASPECTS OF A SINGLE TRANSACTION, IS SUBJECT TO ONLY ONE
PROSECUTION AND ONE TRIAL.  IF THE GOVERNMENT ATTEMPTED MULTIPLE
PROSECUTIONS OF THE SAME OFFENSES, AN ENTIRELY DIFFERENT CONSTITUTIONAL
ISSUE WOULD BE PRESENTED, CF. HOAG V. NEW JERSEY, 356 U.S., AT 467. 
THE BASIS OF THE FIFTH AMENDMENT PROTECTION AGAINST DOUBLE JEOPARDY IS
THAT A PERSON SHALL NOT BE HARASSED BY SUCCESSIVE TRIALS; THAT AN
ACCUSED SHALL NOT HAVE TO MARSHAL THE RESOURCES AND ENERGIES NECESSARY
FOR HIS DEFENSE MORE THAN ONCE FOR THE SAME ALLEGED CRIMINAL ACTS. 
"THE UNDERLYING IDEA  ...  IS THAT THE STATE WITH ALL ITS RESOURCES AND
POWER SHOULD NOT BE ALLOWED TO MAKE REPEATED ATTEMPTS TO CONVICT AN
INDIVIDUAL FOR AN ALLEGED OFFENSE, THEREBY SUBJECTING HIM TO
EMBARRASSMENT, EXPENSE AND ORDEAL AND COMPELLING HIM TO LIVE IN A
CONTINUING STATE OF ANXIETY AND INSECURITY  ...  ."  GREEN V. UNITED
STATES, 355 U.S. 184, 187.  IN SHORT, "THE PROHIBITION IS NOT AGAINST
BEING TWICE PUNISHED, BUT AGAINST BEING TWICE PUT IN JEOPARDY  ...  ." 
UNITED STATES V. BALL, 163 U.S. 662, 669. 

OBVIOUSLY SEPARATE PROSECUTIONS OF THE SAME CRIMINAL CONDUCT CAN BE
FAR MORE EFFECTIVELY USED BY A PROSECUTOR TO HARASS AN ACCUSED THAN CAN
THE IMPOSITION OF CONSECUTIVE SENTENCES FOR VARIOUS ASPECTS OF THAT
CONDUCT.  IT IS ALWAYS WITHIN THE DISCRETION OF THE TRIAL JUDGE WHETHER
TO IMPOSE CONSECUTIVE OR CONCURRENT SENTENCES, WHEREAS, UNLESS THE
FIFTH AMENDMENT APPLIES, IT WOULD BE SOLELY WITHIN THE PROSECUTOR'S
DISCRETION TO BRING SUCCESSIVE PROSECUTIONS BASED ON THE SAME ACTS,
THEREBY REQUIRING THE ACCUSED TO DEFEND HIMSELF MORE THAN ONCE. 
FURTHERMORE, SEPARATE PROSECUTIONS, UNLIKE MULTIPLE PUNISHMENTS BASED
ON ONE TRIAL, RAISE THE POSSIBILITY OF AN ACCUSED ACQUITTED BY ONE JURY
BEING SUBSEQUENTLY CONVICTED BY ANOTHER FOR ESSENTIALLY THE SAME
CONDUCT.  (FN3)  SEE HOAG V. NEW JERSEY, SUPRA; CF. CIUCCI V. ILLINOIS,
356 U.S. 571.  THUS TO PERMIT THE GOVERNMENT STATUTORILY TO MULTIPLY
THE NUMBER OF OFFENSES RESULTING FROM THE SAME ACTS, AND TO ALLOW
SUCCESSIVE PROSECUTIONS OF THE SEVERAL OFFENSES, RATHER THAN MERELY THE
IMPOSITION OF CONSECUTIVE SENTENCES AFTER ONE TRIAL OF THOSE OFFENSES,
WOULD ENABLE THE GOVERNMENT TO "WEAR THE ACCUSED OUT BY A MULTITUDE OF
CASES WITH ACCUMULATED TRIALS."  PALKO V. CONNECTICUT, 302 U.S. 319,
328.  REPETITIVE HARASSMENT IN SUCH A MANNER GOES TO THE HEART OF THE
FIFTH AMENDMENT PROTECTION.  (FN4)  THIS PROTECTION CANNOT BE THWARTED
EITHER BY THE "SAME EVIDENCE" TEST OR BECAUSE THE CONDUCT OFFENDS
DIFFERENT FEDERAL STATUTES PROTECTING DIFFERENT FEDERAL INTERESTS.  THE
PRIME CONSIDERATION IS THE PROTECTION OF THE ACCUSED FROM THE
HARASSMENT OF SUCCESSIVE PROSECUTIONS, AND NOT THE JUSTIFICATION FOR OR
POLICY BEHIND THE STATUTES VIOLATED BY THE ACCUSED.  IF THE SAME ACTS
VIOLATE DIFFERENT FEDERAL STATUTES PROTECTING SEPARATE FEDERAL
INTERESTS THOSE INTERESTS CAN BE ADEQUATELY PROTECTED AT A SINGLE TRIAL
BY THE IMPOSITION OF SEPARATE SENTENCES FOR EACH STATUTE VIOLATED. 
SEE, E.G., BELL V. UNITED STATES, 349 U.S. 81, 82-83; GORE V. UNITED
STATES, 357 U.S. 386. 

THE HOLDING OF THE COURT IN IN RE NIELSEN, 131 U.S. 176, ESTABLISHES
THE GOVERNING PRINCIPLE.  THE DEFENDANT IN THAT CASE, A MORMON WITH
MORE THAN ONE WIFE, HAD BEEN CONVICTED OF VIOLATING A CONGRESSIONAL
STATUTE, APPLICABLE TO THE TERRITORY OF UTAH, WHICH PROHIBITED MALES
FROM COHABITING WITH MORE THAN ONE WOMAN.  SUBSEQUENTLY HE WAS
PROSECUTED AND CONVICTED OF ADULTERY IN VIOLATION OF ANOTHER
CONGRESSIONAL STATUTE, THE SECOND PROSECUTION BEING BASED ON THE SAME
ACTS AS THE PRIOR CONVICTION.  DESPITE THE FACT THAT IT WAS NECESSARY
TO PROVE A FACT IN THE SECOND PROSECUTION NOT NECESSARY FOR THE FIRST
CONVICTION, I.E., THAT THE DEFENDANT WAS MARRIED TO ANOTHER WOMAN, AND
THAT A DIFFERENT FEDERAL INTEREST WAS PROTECTED BY EACH STATUTE, THE
COURT HELD THAT THE SECOND PROSECUTION UNCONSTITUTIONALLY PUT THE
DEFENDANT TWICE IN JEOPARDY FOR THE SAME OFFENSE. 

IN SHORT, THOUGH THE COURT IN GORE HAS FOUND NO VIOLENCE TO THE
GUARANTEE AGAINST DOUBLE JEOPARDY WHEN THE SAME ACTS ARE MADE TO DO
SERVICE FOR SEVERAL CONVICTIONS AT ONE TRIAL, I THINK NOT MERE VIOLENCE
TO, BUT VIRTUAL EXTINCTION OF, THE GUARANTEE RESULTS IF THE FEDERAL
GOVERNMENT MAY TRY PEOPLE OVER AND OVER AGAIN FOR THE SAME CRIMINAL
CONDUCT JUST BECAUSE EACH TRIAL IS BASED ON A DIFFERENT FEDERAL STATUTE
PROTECTING A SEPARATE FEDERAL INTEREST. 

FN1  "IT CANNOT BE SUGGESTED THAT IN CASES WHERE THE AUTHOR IS THE
MERE INSTRUMENT OF THE COURT HE MUST FOREGO EXPRESSION OF HIS OWN
CONVICTIONS."  WHEELING STEEL CORP. V. GLANDER, 337 U.S. 562, 576
(SEPARATE OPINION).  SEE ALSO HELVERING V. DAVIS, 301 U.S. 619, 639
640. 

FN2  GAVIERES V. UNITED STATES, 220 U.S. 338, UPHELD A PROSECUTION
FOR INSULTING A PUBLIC OFFICER DESPITE A PRIOR PROSECUTION FOR INDECENT
BEHAVIOR IN PUBLIC BASED ON ESSENTIALLY THE SAME ACTS.  HOWEVER, THAT
DECISION WAS AN INTERPRETATION OF A CONGRESSIONAL STATUTE AGAINST
DOUBLE JEOPARDY APPLICABLE TO THE PHILIPPINE ISLANDS, A TERRITORY "WITH
LONG-ESTABLISHED LEGAL PROCEDURES THAT WERE ALIEN TO THE COMMON LAW." 
GREEN V. UNITED STATES, 355 U.S. 184, 197.  IT HAS NOT BEEN CONSIDERED
AN AUTHORITATIVE INTERPRETATION OF THE CONSTITUTIONAL PROVISION.  GREEN
V. UNITED STATES, SUPRA; SEE HOAG V. NEW JERSEY, 356 U.S. 464, 478, N.
3 (DISSENTING OPINION).  FLEMISTER V. UNITED STATES, 207 U.S. 372,
DECIDED UNDER THE SAME STATUTE, INVOLVED TWO PROSECUTIONS OF TWO
DIFFERENT ASSAULTS ON TWO POLICE OFFICERS AT TWO DIFFERENT TIMES,
ALTHOUGH IN "ONE CONTINUING ATTEMPT TO DEFY THE LAW."  BURTON V. UNITED
STATES, 202 U.S. 344, WAS DECIDED ON A DEMURRER, THE COURT HOLDING THAT
THE PLEADINGS DID NOT NECESSARILY SHOW THAT A COUNT IN A SECOND
INDICTMENT ALLEGING THE RECEIPT OF A BRIBE FROM A CORPORATION CHARGED
THE SAME OFFENSE AS A COUNT IN A PRIOR INDICTMENT ALLEGING THE RECEIPT
OF A BRIBE FROM A NAMED PERSON WHO WAS AN OFFICER OF THE CORPORATION. 
IN UNITED STATES V. ADAMS, 281 U.S. 202, THE DEFENDANT HAD ATTEMPTED TO
CONCEAL AN EMBEZZLEMENT BY MAKING FALSE ENTRIES IN BANK BOOKS AND, AT A
LATER DATE, BY FALSIFYING A REPORT.  A FEDERAL STATUTE PROHIBITED BOTH
SUCH FALSIFICATIONS.  ALTHOUGH BOTH FALSIFICATIONS WERE ATTEMPTS TO
CONCEAL THE SAME EMBEZZLEMENT, THE STATUTE OUTLAWED THE FALSIFICATIONS
THEMSELVES, AND THUS THE COURT HELD THAT SINCE THEY WERE MADE AT
DIFFERENT TIMES AND IN DIFFERENT CIRCUMSTANCES EACH COULD BE PROSECUTED
SEPARATELY. 

FN3  THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT APPLIES IN THE
SAME MANNER TO A PROSECUTION FOLLWING A PRIOR CONVICTION AS IT DOES TO
A PROSECUTION FOLLOWING A PRIOR ACQUITTAL.  SEE EX PARTE LANGE, 18
WALL.  163, 169, 172; UNITED STATES V. BALL, 163 U.S. 662, 669.  THIS
IS CONSISTENT WITH THE FACT THAT, ALTHOUGH AUTREFOIS ACQUIT AND
AUTREFOIS CONVICT WERE SEPARATE PLEAS IN BAR IN THE ENGLISH LAW, THEY
HAVE HISTORICALLY BEEN GIVEN THE SAME SCOPE.  SEE 4 BLACKSTONE
COMMENTARIES *335-336; 2 HAWKINS, PLEAS OF THE CROWN (8TH ED.  1824),
PP. 515-529. 

FN4  THE DOCTRINE OF COLLATERAL ESTOPPEL MAY NOT PROVIDE ADEQUATE
PROTECTION.  OF COURSE, IT WILL BE OF NO HELP TO AN ACCUSED WHO HAS
BEEN PREVIOUSLY CONVICTED.  BUT EVEN IF HE HAS PREVIOUSLY BEEN
ACQUITTED, THE DOCTRINE MAY BE OF LITTLE HELP BECAUSE IN MANY CASES IT
CANNOT BE ASCERTAINED WHETHER THE CONTROLLING FACTUAL ISSUES IN THE
SECOND PROSECUTION WERE NECESSARILY RESOLVED IN THE PRIOR TRIAL.  SEE
HOAG V. NEW JERSEY, 356 U.S. 464, 471-472; UNITED STATES V. DOCKERY, 49
F. SUPP. 907; UNITED STATES V. HALBROOK, 36 F. SUPP. 345.  FURTHERMORE,
THE PROTECTION OF AN ESSENTIALLY PROCEDURAL CONCEPT SUCH AS COLLATERAL
ESTOPPEL, SEE HOAG V. NEW JERSEY, SUPRA, AT 471, IS LESS SUBSTANTIAL
THAN THE CONSTITUTIONAL PROTECTION OF THE DOUBLE JEOPARDY CLAUSE.  FOR
EXAMPLE, A SECOND TRIAL THAT PLACED THE ACCUSED IN DOUBLE JEOPARDY
COULD BE COLLATERALLY ATTACKED, WHEREAS QUERY WHETHER THE FAILURE TO
APPLY COLLATERAL ESTOPPEL COULD BE CHALLENGED BY A POST-CONVICTION
MOTION FOR RELIEF.  SEE SUNAL V. LARGE, 332 U.S. 174, 178-179. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

PETITIONERS, ABBATE AND FALCONE, WERE CONVICTED IN AN ILLINOIS STATE
COURT OF CONSPIRACY TO BLOW UP CERTAIN PROPERTY LOCATED IN MISSISSIPPI
AND ADJOINING STATES.  AFTER RECEIVING PRISON SENTENCES IN ILLINOIS
THEY WERE INDICTED AND CONVICTED OF THE SAME CONSPIRACY IN THE FEDERAL
DISTRICT COURT OF MISSISSIPPI AND AGAIN SENTENCED TO PRISON.  THE COURT
NOW AFFIRMS THEIR SECOND SENTENCES OVER THE CONTENTION THAT THE FEDERAL
CONVICTION VIOLATES THE DOUBLE JEOPARDY PROVISION OF THE FIFTH
AMENDMENT. 

IN SUPPORT OF ITS AFFIRMANCE, THE COURT POINTS TO UNITED STATES V.
LANZA, 260 U.S. 377.  IN THAT CASE, THIS COURT SUSTAINED LANZA'S
CONVICTION FOR HANDLING LIQUOR CONTRARY TO FEDERAL LAW, AFTER LANZA HAD
BEEN CONVICTED UNDER STATE LAW OF HANDLING THE SAME LIQUOR AT THE SAME
TIME AND PLACE.  SOME WRITERS HAVE EXPLAINED LANZA AS JUSTIFIED BY THE
BROAD LANGUAGE OF THE PROHIBITION AMENDMENT WHICH WAS THEN IN EFFECT
AND WHICH GAVE THE STATES AND THE FEDERAL GOVERNMENT CONCURRENT POWER
TO CONTROL LIQUOR TRAFFIC.  (FN1)  THE COURT'S OPINION, IN LANZA,
HOWEVER, SEEMED RATHER TO RELY ON DICTA IN A NUMBER OF PAST CASES IN
THIS COURT.  THESE HAD ASSUMED THAT IDENTICAL CONDUCT OF AN ACCUSED
MIGHT BE PROSECUTED TWICE, ONCE BY A STATE AND ONCE BY THE FEDERAL
GOVERNMENT, BECAUSE THE "OFFENSE" PUNISHED BY EACH IS IN SOME,
MEANINGFUL, SENSE DIFFERENT.  THE LEGAL LOGIC USED TO PROVE ONE THING
TO BE TWO IS TOO SUBTLE FOR ME TO GRASP.  SEE, GENERALLY, BARTKUS V.
ILLINOIS, ANTE, P. 150 (DISSENTING OPINION).  (FN2) 

I AM ALSO NOT CONVINCED THAT A STATE AND THE NATION CAN BE CONSIDERED
TWO WHOLLY SEPARATE SOVEREIGNTIES FOR THE PURPOSE OF ALLOWING THEM TO
DO TOGETHER WHAT, GENERALLY, NEITHER CAN DO SEPARATELY.  (FN3)  IN THE
FIRST PLACE, I CANNOT CONCEIVE THAT OUR STATES ARE MORE DISTINCT FROM
THE FEDERAL GOVERNMENT THAN ARE FOREIGN NATIONS FROM EACH OTHER.  (FN4)
AND IT HAS BEEN RECOGNIZED THAT MOST FREE COUNTRIES HAVE ACCEPTED A
PRIOR CONVICTION ELSWHERE AS A BAR TO A SECOND TRIAL IN THEIR
JURISDICTION.  (FN5)  IN THE SECOND PLACE, I BELIEVE THE BILL OF
RIGHTS' SAFEGUARD AGAINST DOUBLE JEOPARDY WAS INTENDED TO ESTABLISH A
BROAD NATIONAL POLICY AGAINST FEDERAL COURTS TRYING OR PUNISHING A MAN
A SECOND TIME AFTER ACQUITTAL OR CONVICTION IN ANY COURT.  IT IS JUST
AS MUCH AN AFFRONT TO HUMAN DIGNITY AND JUST AS DANGEROUS TO HUMAN
FREEDOM FOR A MAN TO BE PUNISHED TWICE FOR THE SAME OFFENSE, ONCE BY A
STATE AND ONCE BY THE UNITED STATES, AS IT WOULD BE FOR ONE OF THESE
TWO GOVERNMENTS TO THROW HIM IN PRISON TWICE FOR THE OFFENSE.  PERHAPS
A BELIEF THAT THIS IS TRUE WAS RESPONSIBLE FOR THE FACT THAT A PROPOSED
AMENDMENT TO THE DOUBLE JEOPARDY CLAUSE WAS REJECTED IN OUR FIRST
CONGRESS WHILE THE BILL OF RIGHTS WAS BEING CONSIDERED.  IF THAT
AMENDMENT HAD BEEN ADOPTED THE CLAUSE APPARENTLY WOULD HAVE BARRED
DOUBLE PROSECUTIONS FOR "THE SAME OFFENSE" ONLY IF BROUGHT UNDER "ANY
LAW OF THE UNITED STATES."  1 ANNALS OF CONG., 753 (1789).  (FN6)  I
FEAR THAT THIS LIMITATION ON THE SCOPE OF THE DOUBLE JEOPARDY CLAUSE,
WHICH CONGRESS REFUSED TO ACCEPT, IS ABOUT TO BE FIRMLY ESTABLISHED AS
THE CONSTITUTIONAL RULE BY THE COURT'S HOLDING IN THIS CASE AND IN
BARTKUS V. ILLINOIS, ANTE, P. 121. 

I WOULD REVERSE BOTH CONVICTIONS. 

FN1  U.S. CONST., AMEND. XVIII.  SEE, E.G., NOTE 55, COL. L. REV. 83,
89, N. 38.  LANZA IS SEVERELY CRITICIZED IN GRANT, THE LANZA RULE OF
SUCCESSIVE PROSECUTIONS, 32 COL. L. REV.  1309; GRANT, SUCCESSIVE
PROSECUTIONS BY STATE AND NATION:  COMMON LAW AND BRITISH EMPIRE
COMPARISONS, 4 U.C.L.A.L. REV. 1. 

FN2  THE COURT TODAY SEEMS TO RELY ON THE ARGUMENT, ALSO MADE IN
LANZA, 260 U.S., AT 385, THAT FAILURE TO ALLOW FEDERAL PROSECUTIONS
AFTER STATE TRIALS MIGHT ENDANGER FEDERAL LAW.  STATES, THE ARGUMENT
RUNS, MIGHT ESTABLISH MINOR PUNISHMENTS FOR CONDUCT WHICH VIOLATES
UNITED STATES STATUTES.  CRIMINALS COULD THEN PLEAD GUILTY IN STATE
COURTS AND BE SAFE FROM FEDERAL JUSTICE.  WHATEVER THE MERITS OF THE
ARGUMENT IN THE CONTEXT OF THE EIGHTEENTH AMENDMENT, IT CAN HAVE NO
VALIDITY HERE.  AS WE POINTED OUT IN BARTKUS V. ILLINOIS, ANTE, P. 150
(DISSENTING OPINION), IF CONGRESS HAS POWER TO MAKE CERTAIN CONDUCT A
FEDERAL CRIME, IT ALSO HAS POWER TO PROTECT THE NATIONAL INTEREST.  IT
CAN TAKE EXCLUSIVE JURISDICTION OVER THE CRIME OR, IT IT WISHES TO
ALLOW THE STATES CONCURRENT POWER, IT CAN DEFINE THE OFFENSE AND SET
MINIMUM PENALTIES WHICH WOULD BE APPLICABLE IN BOTH STATE AND FEDERAL
COURTS.  IN ADDITION, SHOULD THE STATE TRIAL PROVE TO BE A SHAM, IT
MIGHT BE THAT NO JEOPARDY COULD BE SHOWN AND THAT A SUBSEQUENT FEDERAL
TRIAL WOULD BE CONSTITUTIONAL.  SEE, E.G., EDWARDS V. COMMONWEALTH, 233
KY. 356, 25 S.W.2D 746.  CF. UNITED STATES V. MASON, 213 U.S. 115,
125.  IT THEREFORE APPEARS THAT FEDERAL LAWS CAN EASILY BE SAFEGUARDED
WITHOUT REQUIRING DEFENDANTS TO UNDERGO DOUBLE PROSECUTIONS. 

FN3  ALMOST ALL OF THE STATES HAVE CONSTITUTIONAL PROVISIONS SIMILAR
TO THE DOUBLE JEOPARDY CLAUSE OF THE FEDERAL CONSTITUTION.  SEE BROCK
V. NORTH CAROLINA, 344 U.S. 424, 429, 435 (DISSENTING OPINION). 

FN4  CF. TESTA V. KATT, 330 U.S. 386. 

FN5  SEE GRANT, THE LANZA RULE OF SUCCESSIVE PROSECUTIONS, 32 COL. L.
REV. 1309; GRANT, SUCCESSIVE PROSECUTIONS BY STATE AND NATION:  COMMON
LAW AND BRITISH EMPIRE COMPARISONS, 4 U.C.L.A.L. REV. 1. 

FN6 AT THE TIME THE AMENDMENT WAS OFFERED THE DOUBLE JEOPARDY CLAUSE
UNDER DISCUSSION READ:  "NO PERSON SHALL BE SUBJECT, EXCEPT IN CASES OF
IMPEACHMENT, TO MORE THAN ONE PUNISHMENT OR ONE TRIAL FOR THE SAME
OFFENCE."  1 ANNALS OF CONG., 434 (1789).  IF THE AMENDMENT HAD PASSED
THE CLAUSE WOULD HAVE READ:  "NO PERSON SHALL BE SUBJECT, EXCEPT IN
CASES OF IMPEACHMENT, TO MORE THAN ONE PUNISHMENT OR ONE TRIAL FOR THE
SAME OFFENCE BY ANY LAW OF THE UNITED STATES."  ID., AT 753. 
..END :





FRIEDMAN V. UNITED STATES 359 U.S. 205 


NO. 675.  DECIDED MARCH 30, 1959 - 168 F. SUPP. 815, AFFIRMED. 


FRIEDMAN V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















TEITELBAUM V. CALIFORNIA 359 U.S. 206 


NO. 678.  DECIDED MARCH 30, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 163 CAL. APP. 2D 184, 329 P.2D 157. 


TEITELBAUM V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR
CERTIORARI, CERTIORARI IS DENIED. 
..END :















TURNER V. KANSAS 359 U.S. 206 


NO. 688.  DECIDED MARCH 30, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  183 KAN. 496, 328 P.2D
733. 


TURNER ET AL. V. KANSAS. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















SECURITIES AND EXCHANGE COMMISSION V. VARIABLE ANNUITY LIFE INSURANCE
CO. 359 U.S. 65 


NO. 290.  ARGUED JANUARY 15, 19, 1959 - DECIDED MARCH 23, 1959* - 103
U.S. APP. D.C. 197, 257 F.2D 201, REVERSED. 

*TOGETHER WITH NO. 237, NATIONAL ASSOCIATION OF SECURITIES DEALERS,
INC., V. VARIABLE ANNUITY LIFE INSURANCE CO. OF AMERICA ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 


RESPONDENT CORPORATIONS, CALLING THEMSELVES "LIFE INSURANCE" COMPANIES
AND SUBMITTING TO REGULATION BY THE INSURANCE COMMISSIONERS OF THE
DISTRICT OF COLUMBIA AND SEVERAL STATES, OFFER FOR SALE IN INTERSTATE
COMMERCE SO-CALLED "VARIABLE ANNUITY" CONTRACTS, WHICH HAVE SOME OF THE
FEATURES OF CONVENTIONAL LIFE INSURANCE AND ANNUITY CONTRACTS BUT WHICH
ENTITLE THE PURCHASERS, NOT TO A SPECIFIED DEFINITE AMOUNT PER ANNUM,
BUT ONLY TO FLUCTUATING AMOUNTS BASED UPON PRO RATA PARTICIPATIONS IN
RESPONDENTS' INVESTMENT PORTFOLIOS AND THE GAINS AND LOSSES THEREON. 
HELD:  SUCH "VARIABLE ANNUITY" CONTRACTS ARE "SECURITIES" WHICH MUST BE
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AND THE ISSUERS ARE SUBJECT TO REGULATION UNDER
THE INVESTMENT COMPANY ACT OF 1940, SINCE SUCH CONTRACTS ARE NOT
"INSURANCE" POLICIES OR "ANNUITY" CONTRACTS AND RESPONDENTS ARE NOT
"INSURANCE" COMPANIES OR ENGAGED IN THE "BUSINESS OF INSURANCE," WITHIN
THE MEANING OF THE EXEMPTION PROVISIONS OF THOSE ACTS OR THE MCCARRAN
FERGUSON ACT.  PP. 66-73. 

(A)  WHILE THE STATES HAVE TRADITIONALLY REGULATED THE BUSINESS OF
INSURANCE, THEIR CHARACTERIZATION OF PARTICULAR CONTRACTS IS NOT
CONCLUSIVE, SINCE THE CONSTRUCTION OF THE EXEMPTION PROVISIONS OF THE
FEDERAL ACTS PRESENTS FEDERAL QUESTIONS.  PP. 68-69. 

(B)  THE ISSUER OF A "VARIABLE ANNUITY" CONTRACT THAT HAS NO ELEMENT
OF FIXED RETURN DOES NOT ASSUME ANY INVESTMENT RISK, WHICH IS INHERENT
IN THE CONCEPTS OF "INSURANCE" AND "ANNUITY."  PP. 71-73. 

SECURITIES AND EXCHANGE COMMISSION V. VARIABLE ANNUITY LIFE INSURANCE
CO. OF AMERICA ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION INSTITUTED BY THE SECURITIES AND EXCHANGE
COMMISSION (FN1) TO ENJOIN RESPONDENTS FROM OFFERING THEIR ANNUITY
CONTRACTS TO THE PUBLIC WITHOUT REGISTERING THEM UNDER THE SECURITIES
ACT OF 1933, 48 STAT. 74, 15 U.S.C. SEC. 77A, AND COMPLYING WITH THE
INVESTMENT COMPANY ACT OF 1940, 54 STAT. 789, 15 U.S.C. SEC. 80A.  THE
DISTRICT COURT DENIED RELIEF, 155 F. SUPP. 521; AND THE COURT OF
APPEALS AFFIRMED, 103 U.S. APP. D.C. 197, 257 F.2D 201.  THE CASE IS
HERE ON PETITIONS FOR WRITS OF CERTIORARI WHICH WE GRANTED, 358 U.S.
812, BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED. 

RESPONDENTS ARE REGULATED UNDER THE INSURANCE LAWS OF THE DISTRICT OF
COLUMBIA AND SEVERAL OTHER STATES.  IT IS ARGUED THAT THAT FACT BRINGS
INTO PLAY THE PROVISIONS OF THE MCCARRAN-FERGUSON ACT, 59 STAT. 33, 15
U.S.C. SEC. 1011, SEC. 2(B) OF WHICH PROVIDES THAT "NO ACT OF CONGRESS
SHALL BE CONSTRUED TO INVALIDATE, IMPAIR OR SUPERSEDE ANY LAW ENACTED
BY ANY STATE FOR THE PURPOSE OF REGULATING THE BUSINESS OF INSURANCE
...  ."  IT IS SAID THAT THE CONDITIONS UNDER WHICH THAT LAW IS
APPLICABLE ARE SATISFIED HERE.  THE DISTRICT OF COLUMBIA AND SOME OF
THE STATES ARE "REGULATING" THESE ANNUITY CONTRACTS AND, IF THE
COMMISSION IS RIGHT, THE FEDERAL ACTS WOULD AT LEAST TO A DEGREE
"SUPERSEDE" THE STATE REGULATIONS SINCE THE FEDERAL ACTS PRESCRIBE
THEIR OWN PECULIAR REQUIREMENTS.  (FN2)  MOREOVER, "INSURANCE" OR
"ANNUITY" CONTRACTS ARE EXEMPT FROM THE SECURITIES ACT WHEN "SUBJECT TO
THE SUPERVISION OF THE INSURANCE COMMISSIONER  ...  OF ANY STATE  ...
."  (FN3)  RESPONDENTS ARE ALSO EXEMPT FROM THE INVESTMENT COMPANY ACT
IF THEY ARE "ORGANIZED AS AN INSURANCE COMPANY, WHOSE PRIMARY AND
PREDOMINANT BUSINESS ACTIVITY IS THE WRITING OF INSURANCE  ...  AND
WHICH IS SUBJECT TO SUPERVISION BY THE INSURANCE COMMISSIONER  ...  OF
A STATE  ...  ."  (FN4)  WHILE THE TERM "SECURITY" AS DEFINED IN THE
SECURITIES ACT (FN5) IS BROAD ENOUGH TO INCLUDE ANY "ANNUITY" CONTRACT,
AND THE TERM "INVESTMENT COMPANY" AS DEFINED IN THE INVESTMENT COMPANY
ACT (FN6) WOULD EMBRACE AN "INSURANCE COMPANY," THE SCHEME OF THE
EXEMPTIONS LIFTS PRO TANTO THE REQUIREMENTS OF THOSE TWO FEDERAL ACTS
TO THE EXTENT THAT RESPONDENTS ARE ACTUALLY REGULATED BY THE STATES AS
INSURANCE COMPANIES, IF INDEED THEY ARE SUCH.  THE QUESTION COMMON TO
THE EXEMPTION PROVISIONS OF THE SECURITIES ACT AND THE INVESTMENT
COMPANY ACT AND TO SEC. 2(B) OF THE MCCARRAN-FERGUSON ACT IS WHETHER
RESPONDENTS ARE ISSUING CONTRACTS OF INSURANCE. 

WE START WITH A RELUCTANCE TO DISTURB THE STATE REGULATORY SCHEMES
THAT ARE IN ACTUAL EFFECT, EITHER BY DISPLACING THEM OR BY
SUPERIMPOSING FEDERAL REQUIREMENTS ON TRANSACTIONS THAT ARE TAILORED TO
MEET STATE REQUIREMENTS.  WHEN THE STATES SPEAK IN THE FIELD OF
"INSURANCE," THEY SPEAK WITH THE AUTHORITY OF A LONG TRADITION.  FOR
THE REGULATION OF "INSURANCE," THOUGH WITHIN THE AMBIT OF FEDERAL POWER
(UNITED STATES V. UNDERWRITERS ASSN., 322 U.S. 533), HAS TRADITIONALLY
BEEN UNDER THE CONTROL OF THE STATES. 

WE DEAL, HOWEVER, WITH FEDERAL STATUTES WHERE THE WORDS "INSURANCE"
AND "ANNUITY" ARE FEDERAL TERMS.  CONGRESS WAS LEGISLATING CONCERNING A
CONCEPT WHICH HAD TAKEN ON ITS COLORATION AND MEANING LARGELY FROM
STATE LAW, FROM STATE PRACTICE, FROM STATE USAGE.  SOME STATES DENY
THESE "ANNUITY" CONTRACTS ANY STATUS AS "INSURANCE."  (FN7)  OTHERS
ACCEPT THEM UNDER THEIR "INSURANCE" STATUTES.  (FN8)  IT IS APPARENT
THAT THERE IS NO UNIFORMITY IN THE RULINGS OF THE STATES ON THE NATURE
OF THESE "ANNUITY" CONTRACTS.  IN ANY EVENT HOW THE STATES MAY HAVE
RULED IS NOT DECISIVE.  FOR, AS WE HAVE SAID, THE MEANING OF
"INSURANCE" OR "ANNUITY" UNDER THESE FEDERAL ACTS IS A FEDERAL
QUESTION. 

WHILE ALL THE STATES REGULATE "ANNUITIES" UNDER THEIR "INSURANCE"
LAWS, TRADITIONALLY AND CUSTOMARILY THEY HAVE BEEN FIXED ANNUITIES,
OFFERING THE ANNUITANT SPECIFIED AND DEFINITE AMOUNTS BEGINNING WITH A
CERTAIN YEAR OF HIS OR HER LIFE.  THE STANDARDS FOR INVESTMENT OF FUNDS
UNDERLYING THESE ANNUITIES HAVE BEEN CONSERVATIVE.  THE VARIABLE
ANNUITY INTRODUCED TWO NEW FEATURES.  FIRST, PREMIUMS COLLECTED ARE
INVESTED TO A GREATER DEGREE IN COMMON STOCKS AND OTHER EQUITIES. 
SECOND, BENEFIT PAYMENTS VARY WITH THE SUCCESS OF THE INVESTMENT
POLICY.  THE FIRST VARIABLE ANNUITY APPARENTLY APPEARED IN THIS COUNTRY
ABOUT 1952 WHEN NEW YORK CREATED THE COLLEGE RETIREMENT EQUITIES FUND
(FN9) TO PROVIDE ANNUITIES FOR TEACHERS.  IT CAME INTO EXISTENCE AS A
RESULT OF A SEARCH FOR A DEVICE THAT WOULD AVOID PAYING ANNUITANTS IN
DEPRECIATED DOLLARS.  (FN10)  THE THEORY WAS THAT RETURNS FROM
INVESTMENTS IN COMMON STOCKS WOULD OVER THE LONG RUN TEND TO COMPENSATE
FOR THE MOUNTING INFLATION.  THE HOLDER OF A VARIABLE ANNUITY CANNOT
LOOK FORWARD TO A FIXED MONTHLY OR YEARLY AMOUNT IN HIS ADVANCING
YEARS.  IT MAY BE GREATER OR LESS, DEPENDING ON THE WISDOM OF THE
INVESTMENT POLICY.  IN SOME RESPECTS THE VARIABLE ANNUITY HAS THE
CHARACTERISTICS OF THE FIXED AND CONVENTIONAL ANNUITY: PAYMENTS ARE
MADE PERIODICALLY; THEY CONTINUE UNTIL THE ANNUITANT'S DEATH OR IN CASE
OTHER OPTIONS ARE CHOSEN UNTIL THE END OF A FIXED TERM OR UNTIL THE
DEATH OF THE LAST OF TWO PERSONS; PAYMENTS ARE MADE BOTH FROM PRINCIPAL
AND INCOME; AND THE AMOUNTS VARY ACCORDING TO THE AGE AND SEX OF THE
ANNUITANT.  MOREOVER, ACTUARIALLY BOTH THE FIXED-DOLLAR ANNUITY AND THE
VARIABLE ANNUITY ARE CALCULATED BY IDENTICAL PRINCIPLES.  EACH ISSUER
ASSUMES THE RISK OF MORTALITY FROM THE MOMENT THE CONTRACT IS ISSUED. 
THAT RISK IS AN ACTUARIAL PROGNOSTICATION THAT A CERTAIN NUMBER OF
ANNUITANTS WILL SURVIVE TO SPECIFIED AGES.  EVEN IF A SUBSTANTIAL
NUMBER LIVE BEYOND THEIR PREDICTED DEMISE, THE COMPANY ISSUING THE
ANNUITY - WHETHER IT BE FIXED OR VARIABLE - IS OBLIGATED TO MAKE THE
ANNUITY PAYMENTS ON THE BASIS OF THE MORTALITY RISK ASSUMED BOTH BY
RESPONDENTS AND BY THOSE WHO ISSUE FIXED ANNUITIES.  IT IS THIS
FEATURE, COMMON TO BOTH, THAT RESPONDENTS STRESS WHEN THEY URGE THAT
THIS IS BASICALLY AN INSURANCE DEVICE.  (FN11) 

THE DIFFICULTY IS THAT, ABSENT SOME GUARANTEE OF FIXED INCOME, THE
VARIABLE ANNUITY PLACES ALL THE INVESTMENT RISKS ON THE ANNUITANT, NONE
ON THE COMPANY.  (FN12)  THE HOLDER GETS ONLY A PRO RATA SHARE OF WHAT
THE PORTFOLIO OF EQUITY INTERESTS REFLECTS - WHICH MAY BE A LOT, A
LITTLE, OR NOTHING.   WE REALIZE THAT LIFE INSURANCE IS AN EVOLVING
INSTITUTION.  COMMON KNOWLEDGE TELLS US THAT THE FORMS HAVE GREATLY
CHANGED EVEN IN A GENERATION.  AND WE WOULD NOT UNDERTAKE TO FREEZE THE
CONCEPTS OF "INSURANCE" OR "ANNUITY" INTO THE MOLD THEY FITTED WHEN
THESE FEDERAL ACTS WERE PASSED.  BUT WE CONCLUDE THAT THE CONCEPT OF
"INSURANCE" INVOLVES SOME INVESTMENT RISK-TAKING ON THE PART OF THE
COMPANY.  THE RISK OF MORTALITY, ASSUMED HERE, GIVES THESE VARIABLE
ANNUITIES AN ASPECT OF INSURANCE.  YET IT IS APPARENT, NOT REAL;
SUPERFICIAL, NOT SUBSTANTIAL.  IN HARD REALITY THE ISSUER OF A VARIABLE
ANNUITY THAT HAS NO ELEMENT OF A FIXED RETURN ASSUMES NO TRUE RISK IN
THE INSURANCE SENSE.  IT IS NO ANSWER TO SAY THAT THE RISK OF DECLINING
RETURNS IN TIMES OF DEPRESSION IS THE RECIPROCAL OF THE FIXED-DOLLAR
ANNUITANT'S RISK OF LOSS OF PURCHASING POWER WHEN PRICES ARE HIGH AND
GAIN OF PURCHASING POWER WHEN THEY ARE LOW.  WE DEAL WITH A MORE
CONVENTIONAL CONCEPT OF RISK-BEARING WHEN WE SPEAK OF "INSURANCE."  FOR
IN COMMON UNDERSTANDING "INSURANCE" INVOLVES A GUARANTEE THAT AT LEAST
SOME FRACTION OF THE BENEFITS WILL BE PAYABLE IN FIXED AMOUNTS.  SEE
SPELLACY V. AMERICAN LIFE INS. ASSN., 144 CONN. 346, 354-355, 131 A.2D
834, 839; COUCH, CYCLOPEDIA OF INSURANCE LAW, VOL. 1, SEC. 25;
RICHARDS, LAW OF INSURANCE, VOL. 1, SEC. 27; APPLEMAN, INSURANCE LAW
AND PRACTICE, VOL. 1, SEC. 81.  THE COMPANIES THAT ISSUE THESE
ANNUITIES TAKE THE RISK OF FAILURE.  BUT THEY GUARANTEE NOTHING TO THE
ANNUITANT EXCEPT AN INTEREST IN A PORTFOLIO OF COMMON STOCKS OR OTHER
EQUITIES (FN13) - AN INTEREST THAT HAS A CEILING BUT NO FLOOR.  (FN14)
THERE IS NO TRUE UNDERWRITING OF RISKS, (FN15) THE ONE EARMARK OF
INSURANCE AS IT HAS COMMONLY BEEN CONCEIVED OF IN POPULAR UNDERSTANDING
AND USAGE.  REVERSED. 

FN1  NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., PETITIONER IN
NO. 237, AND THE EQUITY ANNUITY LIFE INS. CO., A RESPONDENT IN EACH
CASE, WERE ALLOWED TO INTERVENE. 

FN2  FOR EXAMPLE, THE INVESTMENT COMPANY ACT HAS PROVISIONS GOVERNING
THE SIZE OF INVESTMENT COMPANIES, SEC. 14; THE AFFILIATIONS OF
DIRECTORS, OFFICERS, AND EMPLOYEES, SEC. 10; THE RELATION OF INVESTMENT
ADVISERS AND UNDERWRITERS OF INVESTMENT COMPANIES, SEC. 15; THE
TRANSACTIONS BETWEEN INVESTMENT COMPANIES AND THEIR AFFILIATES AND
UNDERWRITERS, SEC. 17; THE CAPITAL STRUCTURE OF INVESTMENT COMPANIES,
SEC. 18; THEIR DIVIDEND POLICIES, SEC. 19; THEIR LOANS, SEC. 21. 

FN3  SEC. 3(A)(8). 

FN4  SECS. 3(C)(3) AND 2(A)(17). 

FN5  SECTION 2(1) PROVIDES: 

"WHEN USED IN THIS TITLE, UNLESS THE CONTEXT OTHERWISE REQUIRES: 

"(1)  THE TERM 'SECURITY' MEANS ANY NOTE, STOCK, TREASURY STOCK,
BOND, DEBENTURE, EVIDENCE OF INDEBTEDNESS, CERTIFICATE OF INTEREST OR
PARTICIPATION IN ANY PROFIT-SHARING AGREEMENT, COLLATERAL-TRUST
CERTIFICATE, PREORGANIZATION CERTIFICATE OR SUBSCRIPTION, TRANSFERABLE
SHARE, INVESTMENT CONTRACT, VOTING-TRUST CERTIFICATE, CERTIFICATE OF
DEPOSIT FOR A SECURITY, FRACTIONAL UNDIVIDED INTEREST IN OIL, GAS, OR
OTHER MATERIAL RIGHTS, OR, IN GENERAL, ANY INTEREST OR INSTRUMENT
COMMONLY KNOWN AS A 'SECURITY,' OR ANY CERTIFICATE OF INTEREST OR
PARTICIPATION IN, TEMPORARY OR INTERIM CERTIFICATE FOR, RECEIPT FOR,
GUARANTEE OF, OR WARRANT OR RIGHT TO SUBSCRIBE TO OR PURCHASE, ANY OF
THE FOREGOING."  15 U.S.C. SEC. 77(B)(1). 

FN6  SECTION 3(A) PROVIDES IN PART: 

"WHEN USED IN THIS TITLE, 'INVESTMENT COMPANY' MEANS ANY ISSUER
WHICH: 

"(1)  IS OR HOLDS ITSELF OUT AS BEING ENGAGED PRIMARILY, OR PROPOSES
TO ENGAGE PRIMARILY IN THE BUSINESS OF INVESTING, REINVESTING, OR
TRADING IN SECURITIES. 

     *         *       *         *         * 

"(3)  IS ENGAGED OR PROPOSES TO ENGAGE IN THE BUSINESS OF INVESTING,
REINVESTING, OWNING, HOLDING, OR TRADING IN SECURITIES, AND OWNS OR
PROPOSES TO ACQUIRE INVESTMENT SECURITIES HAVING A VALUE EXCEEDING 40
PER CENTUM OF THE VALUE OF SUCH ISSUER'S TOTAL ASSETS (EXCLUSIVE OF
GOVERNMENT SECURITIES AND CASH ITEMS) ON AN UNCONSOLIDATED BASIS." 

FN7  SEE 1 CCH, BLUE SKY REPORTER (1956) #4711; SPELLACY V. AMERICAN
LIFE INS. ASSN., 144 CONN. 346, 131 A.2D 834. 

FN8  SEE PEOPLE V. SUPREME BROTHERHOOD, 193 MISC. 996, 86 N.Y.S.2D
127. 

FN9  N.Y. LAWS 1952, C. 124. 

FN10  SEE MORRISEY, DISPUTE OVER THE VARIABLE ANNUITY, 35 HARV. BUS. 
REV.  75; JOHNSON, THE VARIABLE ANNUITY:  WHAT IT IS AND WHY IT IS
NEEDED, INS., L.J., JUNE 1956, P. 357; DAY AND MELNIKOFF, THE VARIABLE
ANNUITY AS A LIFE INSURANCE COMPANY PRODUCT, 10 J. AM. SOC.  CH. L.
UNDER.  45; BARRONS, VOL. 36, JAN. 23, 1956, P. 3. 

FN11  SEE DAY, A VARIABLE ANNUITY IS NOT A "SECURITY," 32 NOTRE DAME
LAW.  642. 

FN12  SEE BELLINGER, HAGMANN AND MARTIN, THE MEANING AND USAGE OF THE
WORD "ANNUITY," 9 J. AM. SOC. CH. L. UNDER.  261; HAUSSERMANN, THE
SECURITY IN VARIABLE ANNUITIES, INS. L.J., JUNE 1956, P. 382. 

FN13  SEE SECURITIES & EXCHANGE COMM'N V. HOWEY CO., 328 U.S. 293,
298-299: 

"  ...  AN INVESTMENT CONTRACT FOR PURPOSES OF THE SECURITIES ACT
MEANS A CONTRACT, TRANSACTION OR SCHEME WHEREBY A PERSON INVESTS HIS
MONEY IN A COMMON ENTERPRISE AND IS LED TO EXPECT PROFITS SOLELY FROM
THE EFFORTS OF THE PROMOTER OR A THIRD PARTY, IT BEING IMMATERIAL
WHETHER THE SHARES IN THE ENTERPRISE ARE EVIDENCED BY FORMAL
CERTIFICATES OR BY NOMINAL INTERESTS IN THE PHYSICAL ASSETS EMPLOYED IN
THE ENTERPRISE."  SEE LOSS AND COWETT, BLUE SKY LAW (1958), PP. 351,
356-357. 

FN14  THESE COMPANIES USE AN ASSUMED NET INVESTMENT RATE OF 3 1/2
PERCENT PER ANNUM IN THE ACTUARIAL CALCULATION OF THE INITIAL ANNUITY
PAYMENT.  IF THE NET INVESTMENT RATE WERE AT ALL TIMES PRECISELY 3 1/2
PERCENT, THE AMOUNT OF ANNUITY PAYMENTS WOULD NOT VARY.  BUT THERE IS
NO GUARANTEE AS TO THIS.  THE COMPANIES USE A REPORTING DEVICE, THE
ANNUITY UNIT, THE VALUE OF WHICH INFORMS THE ANNUITY HOLDER OF THE
VARIATIONS IN THE COMPANY'S ACTUAL RETURNS FROM THE ASSUMED INVESTMENT
RATE OF 3 1/2 PERCENT.  TO STATE THE MATTER IN MORE DETAIL:  THE AMOUNT
OF ANY PAYMENT DEPENDS ON THE VALUE OF THE "ANNUITY UNIT" AND THE
NUMBER OF SUCH UNITS HELD BY THE ANNUITANT.  AT THE TIME WHEN HE HAS
PAID ALL OF HIS PREMIUM AND IS ENTITLED TO HIS FIRST ANNUITY PAYMENT,
HE WILL HAVE A CERTAIN MONETARY INTEREST IN THE FUND (DDETERMINED BY
THE NUMBER OF "ACCUMULATION UNITS" HE HOLDS).  THE FIRST PAYMENT IS
DETERMINED BY REFERENCE TO STANDARD ANNUITY TABLES, ASSUMING A NET
INVESTMENT RETURN OF 3 1/2 PERCENT PER ANNUM.  IT IS THE AMOUNT PER
MONTH WHICH A CAPITAL CONTRIBUTION OF THE ANNUITANT'S INTEREST IN THE
FUND BY A PERSON OF HIS AGE AND SEX WOULD BUY.  THIS FIGURE IS
CONVERTED INTO ANNUITY UNITS BY DIVIDING IT BY THE THEN VALUE OF AN
ANNUITY UNIT.  THE NUMBER OF ANNUITY UNITS HELD BY THE ANNUITANT
REMAINS CONSTANT THROUGHOUT THE PAYOUT PERIOD.    THE VALUE OF AN
ANNUITY UNIT IS DETERMINED EACH MONTH AS FOLLOWS:  THE VALUE OF THE
UNIT FOR THE PRECEEDING MONTH IS MULTIPLIED BY THE NET INVESTMENT
FACTOR (ADJUSTED TO NEUTRALIZE THE 3 1/2 PERCENT INTEREST FACTOR USED
IN THE ANNUITY TABLE), WHICH IS THE SUM OF ONE PLUS THE NET INVESTMENT
RATE.  THE NET INVESTMENT RATE IS (AFTER A SLIGHT REDUCTION FOR A
MARGIN TO COVER EXPENSES, AND PROVIDE FOR CONTINGENCY RESERVES AND
ADDITION TO SURPLUS) THE RATIO OF INVESTMENT INCOME PLUS (MINUS) NET
REALIZED AND UNREALIZED CAPITAL GAINS (LOSSES) LESS CERTAIN TAXES TO
THE VALUE OF THE FUND DURING THAT MONTH.  THE NUMBER OF ANNUITY UNITS
HELD TIMES THE VALUE OF EACH UNIT IN A MONTH PRODUCES THE ANNUITY
PAYMENT FOR THAT MONTH. 

FN15  THERE IS ONE TRUE INSURANCE FEATURE TO SOME OF THESE POLICIES,
THOUGH IT IS ANCILLARY AND SECONDARY TO THE ANNUITY FEATURE.  IF THE
APPLICANT IS INSURABLE AND 60 YEARS OF AGE OR UNDER, HE GETS LIFE
INSURANCE ON A DECREASING BASIS FOR A TERM OF FIVE YEARS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE STEWART JOINS,
CONCURRING. 

I JOIN THE OPINION AND JUDGMENT OF THE COURT.  HOWEVER, THERE ARE
ADDITIONAL REASONS WHICH LED ME TO THE COURT'S RESULT, AND SINCE THE
NATURE OF THIS CASE LENDS IT TO RATHER EXTENDED TREATMENT, I WILL
EXPRESS THESE REASONS SEPARATELY. 

FIRST.  THE FACTS OF THIS CASE ARE QUITE COMPLEX, BUT THE BASIC
PROBLEM INVOLVED IS MUCH MORE SIMPLE.  I WILL TRY TO POINT IT UP BEFORE
DEVELOPING THE DETAILS OF THE SORT OF CONTRACTS SOLD BY THE
RESPONDENTS.  IT IS ONE OF THE COVERAGE OF TWO ACTS OF CONGRESS WHICH
CONCENTRATED ON APPLYING SPECIFIC FORMS OF REGULATORY CONTROLS TO THE
VARIOUS WAYS IN WHICH ORGANIZATIONS GET AND ADMINISTER OTHER PEOPLE'S
MONEY - THE SECURITIES ACT OF 1933 (FN1) AND THE INVESTMENT COMPANY ACT
OF 1940.  (FN2)  THESE ACTS WERE SPECIFICALLY DRAWN TO EXCLUDE ANY
"INSURANCE POLICY" AND ANY "ANNUITY CONTRACT" (SECURITIES ACT SEC.
3(A)(8)) AND ANY "INSURANCE COMPANY" (FN3) (INVESTMENT COMPANY ACT SEC.
3(C)(3)) FROM THEIR COVERAGE.  THESE EXCLUSIONS WERE TO TAKE EFFECT
WHERE THE ISSUER OF THE POLICY OR CONTRACT WERE SUBJECT TO THE
SUPERVISION OF THE STATE "INSURANCE COMMISSIONER, BANK COMMISSIONER, OR
ANY AGENCY OR OFFICER PERFORMING LIKE FUNCTIONS" (SECURITIES ACT SEC.
3(A)(8)) OR WHERE A COMPANY CLASSIFIABLE AS AN "INSURANCE COMPANY" WAS
"SUBJECT TO SUPERVISION BY THE INSURANCE COMMISSIONER OR A SIMILAR
OFFICIAL OR AGENCY OF A STATE" (INVESTMENT COMPANY ACT SEC. 2(A)(17)). 
THE EXCLUSIONS LEFT THESE CONTRACTS AND COMPANIES TO THE SOLE CONTROL
OF SUCH STATE OFFICIALS.  EXCEPT FOR THESE EXCLUSIONS, THERE IS LITTLE
DOUBT THAT THESE CONTRACTS AND THE COMPANIES ISSUING THEM WOULD BE
SUBJECT TO THE FEDERAL ACTS.  (FN4) 

WHY THESE EXCLUSIONS?  THEY COULD NOT HAVE BEEN MADE OUT OF SOME
GENERAL DESIRE ON THE PART OF CONGRESS TO AVOID ANY CONCURRENT
REGULATION BY BOTH THE FEDERAL GOVERNMENT AND THE STATES OF INVESTMENTS
OR COMPANIES SUBJECT TO THE TWO ACTS.  ON THE CONTRARY, SEC. 18 OF THE
SECURITIES ACT AND SEC. 50 OF THE INVESTMENT COMPANY ACT PRESERVE
GENERALLY THE JURISDICTION OF STATE OFFICIALS OVER THEIR SUBJECT
MATTER; THE FORMER IN TERMS OF "THE JURISDICTION OF THE SECURITIES
COMMISSION (OR ANY AGENCY OR OFFICE PERFORMING LIKE FUNCTIONS) OF ANY
STATE" AND THE LATTER IN TERMS OF "THE JURISDICTION OF ANY OTHER
COMMISSION, BOARD, AGENCY, OR OFFICER OF  ...  ANY STATE OR POLITICAL
SUBDIVISION."  CONVERSELY, OF COURSE, HOWEVER ADEQUATELY STATE
SECURITIES COMMISSIONERS MIGHT REGULATE AN INVESTMENT, IT WAS NOT FOR
THAT REASON TO BE FREED FROM FEDERAL REGULATION.  CONCURRENT
REGULATION, THEN, WAS CONTEMPLATED BY THE ACTS AS A QUITE GENERALLY
PREVAILING MATTER.  NOR IS IT RATIONAL TO ASSUME THAT CONGRESS THOUGHT
THAT ANY BUSINESS WHATSOEVER REGULATED BY A SPECIFIC CLASS OF
OFFICIALS, THE STATE INSURANCE COMMISSIONERS, WOULD BE FOR THAT REASON
SO PERFECTLY CONDUCTED AND REGULATED THAT ALL THE PROTECTIONS OF THE
FEDERAL ACTS WOULD BE UNNECESSARY.  THIS APPROACH OF PERSONALLY
SELECTIVE DEFERENCE TO THE STATE ADMINISTRATORS IS HARDLY TO BE
ATTRIBUTED TO CONGRESS.  THE POINT MUST HAVE BEEN THAT THERE THEN WAS A
FORM OF "INVESTMENT" KNOWN AS INSURANCE (INCLUDING "ANNUITY CONTRACTS")
WHICH DID NOT PRESENT VERY SQUARELY THE SORT OF PROBLEMS THAT THE
SECURITIES ACT AND THE INVESTMENT COMPANY ACT WERE DEVISED TO DEAL
WITH, AND WHICH WERE, IN MANY DETAILS, SUBJECT TO A FORM OF STATE
REGULATION OF A SORT WHICH MADE THE FEDERAL REGULATION EVEN LESS
RELEVANT. 

AT THIS TIME, OF COURSE, THE SORT OF "VARIABLE ANNUITY" CONTRACT WITH
WHICH WE ARE CONCERNED IN THIS CASE DID NOT EXIST.  WHEN CONGRESS MADE
THE EXCLUSIONS PROVIDED FOR IN THE ACTS, IT DID NOT MAKE THEM WITH THE
"VARIABLE ANNUITY" CONTRACT BEFORE IT.  OF COURSE, THE POINT IS NOT
THAT IF THE INSURANCE INDUSTRY SEEKS TO RETAIN ITS EXEMPTION, IT MUST
LIMIT ITSELF TO THE FORMS OF POLICIES AND CONTRACTS IN EFFECT IN 1933
AND 1940.  BUT IF A BRAND-NEW FORM OF INVESTMENT ARRANGEMENT EMERGES
WHICH IS LABELED "INSURANCE" OR "ANNUITY" BY ITS PROMOTERS, THE
FUNCTIONAL DISTINCTION THAT CONGRESS SET UP IN 1933 AND 1940 MUST BE
EXAMINED TO TEST WHETHER THE CONTRACT FALLS WITHIN THE SORT OF
INVESTMENT FROM THAT CONGRESS WAS THEN WILLING TO LEAVE EXCLUSIVELY TO
THE STATE INSURANCE COMMISSIONERS.  IN THAT INQUIRY, AN ANALYSIS OF THE
REGULATORY AND PROTECTIVE PURPOSES OF THE FEDERAL ACT AND OF STATE
INSURANCE REGULATION AS IT THEN EXISTED BECOMES RELEVANT.  (FN5) 

AT THE CORE OF THE 1933 ACT ARE THE REQUIREMENTS OF A REGISTRATION
STATEMENT AND PROSPECTUS TO BE USED IN CONNECTION WITH THE ISSUANCE OF
"SECURITIES" - THAT TERM BEING VERY BROADLY DEFINED.  (FN6) DETAILED
SCHEDULES, SET FORTH IN THE ACT, LIST THE MATERIAL THAT THE
REGISTRATION STATEMENT AND THE PROSPECTUS ARE TO CONTAIN.  (FN7)  THE
EMPHASIS IS ON DISCLOSURE; THE PHILOSOPHY OF THE ACT IS THAT FULL
DISCLOSURE OF THE DETAILS OF THE ENTERPRISE IN WHICH THE INVESTOR IS TO
PUT HIS MONEY SHOULD BE MADE SO THAT HE CAN INTELLIGENTLY APPRAISE THE
RISKS INVOLVED. 

THE REGULATION OF LIFE INSURANCE AND ANNUITIES BY THE STATES
PROCEEDED, AND STILL PROCEEDS, ON ENTIRELY DIFFERENT PRINCIPLES.  IT
SEEMS AS PATERNALISTIC AS THE SECURITIES ACT OF 1933 WAS KEYED TO FREE,
INFORMED CHOICE.  PRESCRIBED CONTRACT CLAUSES ARE ORDAINED
LEGISLATIVELY OR ADMINISTRATIVELY.  SOLVENCY AND THE ADEQUACY OF
RESERVES TO MEET THE COMPANY'S OBLIGATIONS ARE SUPERVISED BY THE
ESTABLISHMENT OF PERMISSIBLE CATEGORIES OF INVESTMENTS AND THROUGH
OFFICIAL EXAMINATION.  (FN8)  THE SYSTEM DOES NOT DEPEND ON DISCLOSURE
TO THE PUBLIC, AND, ONCE GIVEN THIS FORM OF REGULATION AND THE NATURE
OF THE "PRODUCT," IT MIGHT BE DIFFICULT IN THE CASE OF THE TRADITIONAL
LIFE INSURANCE OR ANNUITY CONTRACT TO SEE WHAT THE PURPOSE OF IT WOULD
BE. 

THIS CONGRESSIONAL DIVISION OF REGULATORY FUNCTIONS IS RATIONAL AND
PURPOSEFUL IN THE CASE OF A TRADITIONAL LIFE INSURANCE OR ANNUITY
POLICY, WHERE THE OBLIGATIONS OF THE COMPANY WERE MEASURED IN FIXED
DOLLAR TERMS AND WHERE THE INVESTOR COULD NOT BE SAID, IN ANY
MEANINGFUL SENSE, TO BE A SHARER IN THE INVESTMENT EXPERIENCE OF THE
COMPANY.  IN FACT, ONE OF THE BASIC PREMISES OF STATE REGULATION WOULD
APPEAR TO BE THAT IN ONE SENSE THE INVESTOR IN AN ANNUITY OR LIFE
INSURANCE COMPANY NOT BECOME A DIRECT SHARER IN THE COMPANY'S
INVESTMENT EXPERIENCE; THAT HIS INVESTMENT IN THE POLICY OR CONTRACT BE
SUFFICIENTLY PROTECTED TO PREVENT THIS.  BUT THE SITUATION CHANGES
WHERE THE COIN OF THE COMPANY'S OBLIGATION IS NOT MONEY BUT IS RATHER
THE PRESENT CONDITION OF ITS INVESTMENT PORTFOLIO.  TO THIS EXTENT, THE
HISTORIC FUNCTIONS OF STATE INSURANCE REGULATION BECOME MEANINGLESS. 
PRESCRIBED LIMITATIONS ON INVESTMENT AND EXAMINATION OF SOLVENCY AND
RESERVES BECOME PERFECTLY CIRCULAR TO THE EXTENT THAT THERE IS NO
OBLIGATION TO PAY EXCEPT IN TERMS MEASURED BY ONE'S PORTFOLIO.  BUT
BEYOND CONTROLLING CORPORATE SOLVENCY AND THE ADEQUACY OF RESERVES, AND
MAINTAINING OBSERVANCE OF THE LEGAL LIST OF INVESTMENTS, THE STATE
PLANS OF REGULATION DO NOT GO IN REGULATING INVESTMENT POLICY.  WHERE
THE NATURE OF THE OBLIGATION ASSUMED IS SUCH, THE FEDERALLY PROTECTED
INTERESTS IN DISCLOSURE TO THE INVESTOR OF THE NATURE OF THE
CORPORATION TO WHOM HE IS ASKED TO ENTRUST HIS MONEY AND THE PURPOSES
FOR WHICH IT IS TO BE USED BECOME OBVIOUS AND REAL.  THE CONTRACT
BETWEEN THE INVESTOR AND THE ORGANIZATION NO LONGER SQUARES WITH THE
SORT OF CONTRACT IN REGARD TO WHICH CONGRESS IN 1933 THOUGHT ITS
"DISCLOSURE" STATUTE WAS UNNECESSARY. 

THE PROVISIONS OF THE INVESTMENT COMPANY ACT OF 1940, WHICH PASSES
BEYOND A SIMPLE "DISCLOSURE" PHILOSOPHY, ALSO ARE INFORMED BY POLICIES
THAT ARE VERY RELEVANT TO THE CONTRACTS INVOLVED IN THIS CASE.  WHILE
THE ACT DOES COVER FACE-AMOUNT CERTIFICATE COMPANIES WHOSE OBLIGATIONS
ARE SPECIFIED IN FIXED-DOLLAR AMOUNTS, (FN9) THE MAJORITY OF ITS
PROVISIONS ARE OF GREATEST REGULATORY RELEVANCE IN THE CASE OF THE MUCH
MORE COMMON SORT OF INVESTMENT COMPANY, WHERE THE INVESTORS (OR AT
LEAST CERTAIN CATEGORIES OF THEM) PARTICIPATE ON AN "EQUITY" BASIS IN
THE INVESTMENT EXPERIENCE OF THE ENTERPRISE.  SALIENT REGULATORY
PROVISIONS CALL FOR REGISTRATION AND RECITAL, BY AN INVESTMENT COMPANY,
OF ITS INVESTMENT POLICIES AND OPERATING PRACTICES; (FN10) REGULATE THE
RELATIONSHIPS BETWEEN THE COMPANY AND ITS INVESTMENT ADVISER, INCLUDING
FEES AND PROVISIONS FOR TERMINATION OF THE CONTRACT; (FN11) REGULATE
TRADING PRACTICES, (FN12) CHANGES IN INVESTMENT POLICY, (FN13) THE
ISSUANCE OF SENIOR SECURITIES, (FN14) PROXIES AND VOTING TRUSTS, (FN15)
THE TERMS OF REDEMPTION BY INVESTORS OF THEIR INTERESTS IN THE COMPANY;
(FN16) REGULATE, IN THE CASE OF PERIODIC INVESTMENT PLANS (WHICH WERE
MADE SUBJECT TO SPECIAL REGULATION), THE "SALES LOAD," OR AMOUNT OF THE
INVESTOR'S PAYMENT THAT DOES NOT BECOME PART OF HIS INTEREST IN THE
ENTERPRISE; (FN17) AND PROVIDE FOR DETAILED REPORTS TO INVESTORS. 
(FN18)  WHILE THESE CONTROLS APPLY IN MANY CASES TO FIXED-DOLLAR
OBLIGATIONS, LIKE FACE-AMOUNT CERTIFICATES AND THE BONDS OF CLOSED-END
INVESTMENT COMPANIES, THEY ARE OF PARTICULAR RELEVANCE TO SITUATIONS
WHERE THE INVESTOR IS COMMITTING HIS FUNDS TO THE HANDS OF OTHERS ON AN
EQUITY BASIS, WITH THE VIEW THAT THE FUNDS WILL BE INVESTED IN
SECURITIES AND HIS FORTUNES WILL DEPEND ON THE SUCCESS OF THE
INVESTMENT.  THE TRADITIONAL STATE INSURANCE DEPARTMENT REGULATION OF
CONTRACT TERMS, RESERVES, SOLVENCY, AND PERMISSIBLE INVESTMENTS SIMPLY
DOES NOT TOUCH THE POINTS OF DEFINITION OF INVESTMENT POLICY AND
INVESTMENT TECHNIQUE, AND CONTROL OVER INVESTMENT POLICY CHANGES AND
OVER THE INTERESTS OF THE MEN WHO SHAPE THE POLICIES OF INVESTMENT AND
FURNISH INVESTMENT ADVICE THAT THE 1940 FEDERAL ACT PROVIDES.  THESE
CONTROLS MAY BE LARGELY IRRELEVANT TO TRADITIONAL BANKS AND INSURANCE
COMPANIES, WHICH CONGRESS CLEARLY EXEMPTED; THEY WERE NOT INVESTING
HEAVILY IN EQUITY SECURITIES AND HOLDING OUT THE POSSIBILITIES OF
CAPITAL GAINS THROUGH FUND MANAGEMENT; BUT WHERE THE INVESTOR IS ASKED
TO PUT HIS MONEY IN A SCHEME FOR MANAGING IT ON AN EQUITY BASIS, IT IS
EVIDENT THAT THE FEDERAL ACT'S CONTROLS BECOME VITAL. 

THIS IS NOT TO SAY THAT BECAUSE SUBJECTION OF THE CONTRACTS IN
QUESTION HERE TO FEDERAL REGULATION IS DESIRABLE, IT HAS IN FACT BEEN
ACCOMPLISHED; BUT ONE MUST APPLY A TEST IN TERMS OF THE PURPOSES OF THE
FEDERAL ACTS AS A GUIDE TO INTERPRETING THE SCOPE OF AN EXEMPTION FROM
THEIR COVERAGE FOR "INSURANCE."  CF. SECURITIES & EXCHANGE COMM'N V.
W.J.  HOWEY CO., 328 U.S. 293, 299.  WHEN CONGRESS PASSED THE
SECURITIES ACT OF 1933 AND THE INVESTMENT COMPANY ACT OF 1940, NO STATE
INSURANCE COMMISSIONER WAS, INCIDENT TO HIS DUTIES IN REGULATING
INSURANCE COMPANIES, ENGAGED IN THE SORT OF REGULATION, OUTLINED ABOVE
AS PROVIDED IN THE FEDERAL ACTS, THAT CONGRESS THOUGHT WOULD BE
APPROPRIATE FOR THE PROTECTION OF PEOPLE ENTRUSTING THEIR MONEY TO
OTHERS TO BE INVESTED ON AN EQUITY BASIS.  THERE IS NO REASON TO
SUPPOSE THAT CONGRESS INTENDED TO MAKE AN EXEMPTION OF FORMS OF
INVESTMENT TO WHICH ITS REGULATORY SCHEME WAS VERY RELEVANT IN FAVOR OF
A FORM OF STATE REGULATION WHICH WOULD NOT BE RELEVANT TO THEM AT ALL. 

SECOND.  MUCH BEWILDERMENT COULD BE ENGENDERED BY THIS CASE IF THE
ISSUE WERE WHETHER THE CONTRACTS IN QUESTION WERE "REALLY" INSURANCE OR
"REALLY" SECURITIES - ONE OR THE OTHER.  IT IS RATHER MEANINGLESS TO
VIEW THE PROBLEM AS ONE OF PIGEONHOLING THESE CONTRACTS IN ONE CATEGORY
OR THE OTHER.  OBVIOUSLY THEY HAVE ELEMENTS OF CONVENTIONAL INSURANCE,
EVEN APART FROM THE FIXED-DOLLAR TERM LIFE INSURANCE AND THE DISABILITY
WAIVER OF PREMIUM INSURANCE SOLD WITH SOME OF THESE CONTRACTS (BOTH OF
WHICH ARE QUITE INCIDENTAL TO THE MAIN UNDERTAKING).  THEY PATENTLY
CONTAIN A SIGNIFICANT ANNUITY FEATURE (UNLESS ONE DEFINES AN ANNUITY AS
A CONTRACT NECESSARILY PROVIDING FIXED-SUM PAYMENTS), (FN19) AND THE
GRANTING OF ANNUITIES HAS BEEN CONSIDERED PART OF THE BUSINESS OF LIFE
INSURANCE.  (FN20)  OF COURSE, SOME URGE THAT EVEN THE TRADITIONAL
ANNUITY HAS FEW "INSURANCE" FEATURES AND IS BASICALLY A FORM OF
INVESTMENT.  1 APPLEMAN, INSURANCE LAW AND PRACTICE, SEC. 83;
PRUDENTIAL INS. CO. V. HOWELL, 29 N.J. 116, 121-122, 148 A.2D 145,
148.  BUT THE POINT IS THAT, EVEN THOUGH THESE CONTRACTS CONTAIN, FOR
WHAT THEY ARE WORTH, FEATURES OF TRADITIONAL ANNUITY CONTRACTS,
ADMINISTERING THEM ALSO INVOLVES A VERY SUBSTANTIAL AND IN FACT
PREDOMINANT ELEMENT OF THE BUSINESS OF AN INVESTMENT COMPANY, AND THAT
IN A WAY TOTALLY FOREIGN TO THE BUSINESS OF A TRADITIONAL LIFE
INSURANCE AND ANNUITY COMPANY, AS TRADITIONALLY REGULATED BY STATE
LAW.  THIS IS WHAT LEADS TO THE CONCLUSION THAT IT IS NOT WITHIN THE
INTENT OF THE 1933 AND 1940 STATUTES TO EXEMPT THEM.    THE INDIVIDUAL
DEFERRED VARIABLE ANNUITY CONTRACT OF RESPONDENT VARIABLE ANNUITY LIFE
INSURANCE COMPANY (VALIC) GIVES A BASIS FOR EXPLORATION OF THIS.  A
SAMPLE CONTRACT, GIVEN IN EVIDENCE IN THE DISTRICT COURT, IS ONE ISSUED
TO A 35-YEAR-OLD MALE, PROVIDING FOR HIS MAKING 30 ANNUAL PAYMENTS OF
$1,000 EACH.  OF THIS, $39.60 IS THE CONSIDERATION FOR AN UNDERTAKING
BY THE COMPANY BY WHICH PAYMENT OF THE ANNUAL $1,000 IS WAIVED IN THE
EVENT OF DISABILITY.  OF THE REMAINING $960.40, DESIGNATED THE "BASIC
ANNUITY PREMIUM," SPECIFIED PERCENTAGES ARE USED TO CREDIT TO THE
ACCOUNT OF THE INVESTOR CERTAIN "ACCUMULATION UNITS."  OF THE FIRST
YEAR'S "BASIC ANNUITY PREMIUM," LESS THAN 45% IS SO USED; FOR THE NEXT
4 YEARS, THE PERCENTAGE IS IN THE APPROXIMATE RANGE OF 85% TO 87%;
(FN21) FOR YEARS 6 THROUGH 10, THE FIGURE IS 89%, AND FOR THE REMAINDER
OF THE 30-YEAR PAY-IN PERIOD IT IS 92%.  DECLINING TERM LIFE INSURANCE
IN A FIXED-DOLLAR AMOUNT, BEGINNING AT FIVE TIMES THE ANNUAL "BASIC
ANNUITY PREMIUM" THE FIRST YEAR AND DECLINING THROUGH A PERIOD OF 5
YEARS TO NIL, IS PROVIDED AS A BENEFIT OVER AND ABOVE THE "ACCUMULATION
UNITS" CREDITED TO THE ACCOUNT OF THE INVESTOR.  (FN22)  THE CONTRACT
IS SAID TO BUILD UP A "CASH VALUE" AS THE INVESTOR'S PAYMENT "BUYS"
FURTHER ACCUMULATION UNITS, BUT WHILE THE VALUE IS ONE WHICH CAN AND
WOULD BE FINALLY SETTLED BY THE PAYMENT OF DOLLARS, THE OBLIGATION OWED
BY THE COMPANY TO THE INVESTOR IS NOT ONE OWED TO HIM IN DOLLAR TERMS. 
IT IS ONE WHICH IS MEASURED ONLY IN TERMS OF "UNITS" - THE PETITIONERS
SUGGEST A RESEMBLANCE TO "SHARES" - IN A PORTFOLIO.  THE UNITS ARE
ESTABLISHED BY AN ARBITRARY COMPUTATION WHICH HAS THE EFFECT OF
DIVIDING THE COMPANY'S INVESTMENT ASSETS AS OF A STARTING DAY INTO A
NUMBER OF UNITS, AND ASSIGNING TO EACH UNIT ITS SHARE OF THE OVER-ALL
MARKET VALUE - THOUGH THE DIVISION IS NOT IN FACT MADE.  (FN23)  THEN
MONTHLY THE VALUE OF THE UNITS IS RECOMPUTED.  THIS IS DONE, BROADLY,
BY TAKING INTO ACCOUNT ALL INTEREST AND DIVIDENDS PAID ON THE COMPANY'S
PORTFOLIO AND ALL REALIZED CAPITAL GAINS AND LOSSES, WITH RELEVANT
INCOME TAXES, TOGETHER WITH ALL UNREALIZED CAPITAL SHRINKAGE AND
INCREASE, LESS A MONTHLY SURCHARGE OF 0.15% (1.8% PER ANNUM) OF ASSET
VALUE.  (FN24) NEW DOLLARS FROM INVESTORS WHICH "BUY" UNITS BUY THEM AT
THE NEW RATE, THUS PREVENTING DILUTION, AND THOSE INVESTORS WHO DRAW
DOWN THEIR ACCUMULATED UNITS RECEIVE CASH FOR THEM AT SUCH RATE. 
(FN25) 

THE CONTRACT USES INSURANCE TERMINOLOGY THROUGHOUT AND MANY OF THE
COMMON FEATURES OF LIFE INSURANCE AND ANNUITY POLICIES ARE OPERATIVE IN
REGARD TO IT AT THIS "PAY-IN" STAGE.  THERE ARE "INCONTESTABILITY" AND
"SUICIDE" CLAUSES (WHICH MAINLY RELATE TO THE TERM INSURANCE); A "GRACE
PERIOD" ALLOWED FOR THE PAYMENT OF PREMIUMS; A PROVISION FOR "POLICY
LOANS" (THE DRAWING DOWN OF ACCUMULATED UNITS IN CASH, SUBJECT TO
REPLACEMENT LATER TO THE EXTENT THAT REPAYMENT OF THE AMOUNT OF MONEY
RECEIVED WILL THEN PERMIT, THE TRANSACTION BEARING A RESEMBLANCE TO THE
LIQUIDATION BY A COMMON STOCK INVESTOR OF HIS HOLDINGS IN ANTICIPATION
OF A "BEAR MARKET"); AND PROVISION FOR A "CASH VALUE" (THAT IS, FOR THE
CASHING IN OF THE ACCUMULATED UNITS, SUBJECT TO A SURRENDER CHARGE IN
THE EARLY YEARS).  AND VERY CERTAINLY THE COMMITMENT OF THE COMPANY
EVENTUALLY TO DISBURSE THE ACCUMULATED VALUES ON A LIFE ANNUITY BASIS
ONCE THE PAY-IN PERIOD IS OVER IS PRESENT THROUGHOUT THIS PERIOD.  BUT
WHAT THE INVESTOR IS PARTICIPATING IN DURING THIS PERIOD, DESPITE ITS
ACKNOWLEDGED "INSURANCE" FEATURES, IS SOMETHING QUITE SIMILAR TO A
CONVENTIONAL OPEN-END MANAGEMENT INVESTMENT COMPANY, UNDER A PERIODIC
INVESTMENT PLAN.  THE INVESTOR'S CASH (LESS A CHARGE ANALOGOUS TO A
LOADING CHARGE, WHICH IS, AT LEAST IN THE EARLY YEARS, VERY HIGH, BUT
WHICH, IT SHOULD BE SAID, HAS TO COVER ANNUITY PREMIUM TAXES AND SOME
QUITE CONVENTIONAL MORTALITY RISKS) GOES TO BUY "UNITS" IN A PORTFOLIO
MANAGED BY THE PERSONS IN CONTROL OF THE CORPORATION.  HIS "UNITS"
FLUCTUATE WITH THE INCOME AND CAPITAL GAIN AND LOSS EXPERIENCE OF THE
MANAGEMENT OF THE PORTFOLIO.  HE MAY CASH THEM IN, WHOLLY OR
PARTIALLY.  THE AMOUNT OF HIS EQUITY IS SUBJECTED TO A CHARGE, ON ASSET
VALUE, OF 1.8% PER ANNUM.  EXCEPT FOR THE TEMPORARY TERM INSURANCE AND
THE WAIVER OF PREMIUM COVERAGE, THE ENTIRE NATURE OF THE COMPANY'S
OBLIGATION TO ITS INVESTOR DURING THIS PERIOD IS NOT IN DOLLARS (THOUGH
OF COURSE IT WILL BE CONVERTED INTO THEM, JUST AS A COMMODITY
TRANSACTION CAN BE), BUT SOLELY IN TERMS OF THE VALUE OF ITS
PORTFOLIO.  IN THIS SORT OF OPERATION, EXAMINATION BY STATE INSURANCE
OFFICIALS TO DETERMINE THE ADEQUACY OF RESERVES AND SOLVENCY BECOMES
LESS AND LESS MEANINGFUL.  THE DISCLOSURE POLICY OF THE SECURITIES ACT
OF 1933 BECOMES, BY COMPARISON, MORE AND MORE RELEVANT.  AND THE
DETAILED PROTECTIONS OF THE 1940 LEGISLATION - DISCLOSURE OF INVESTMENT
POLICY, REGULATION OF CHANGES OF THAT POLICY, OF CAPITAL STRUCTURE,
CONFLICTS OF INTEREST, INVESTMENT ADVISERS - ALL BECOME RELEVANT IN AN
ACUTE WAY HERE.  THESE ARE THE BASIC PROTECTIONS THAT CONGRESS INTENDED
INVESTORS TO HAVE WHEN THEY PUT THEIR MONEY INTO THE HANDS OF AN
INVESTMENT TRUST; THERE IS NO ADEQUATE SUBSTITUTE FOR THEM IN THE
TRADITIONAL REGULATORY CONTROLS ADMINISTERED BY STATE INSURANCE
DEPARTMENTS, BECAUSE THESE CONTROLS ARE NOT RELEVANT TO THE SPECIFIC
REGULATORY PROBLEMS OF AN INVESTMENT TRUST.  (FN26) 

THE SAME CONCLUSIONS FOLLOW FROM A CONSIDERATION OF THE NEXT STAGE OF
THIS CONTRACT.  BEFORE THE MATURITY DATE, WHEN THE SCHEDULE OF PAYMENTS
IN ON THE CONTRACT CEASES AND THE PAYMENTS OUT COMMENCE, THE INVESTOR
CAN DRAW DOWN HIS "UNITS" IN CASH, AND DISPENSE WITH ALL "ANNUITY"
FEATURES.  FAILING THIS, HE IS ENTITLED TO ELECT ONE OF SEVERAL ANNUITY
ALTERNATIVES.  THESE ARE, IN THE SAMPLE POLICY, A STRAIGHT LIFE ANNUITY
WITH 10 YEARS' PAYMENTS CERTAIN, AND A JOINT AND SURVIVOR ANNUITY ON
THE LIFE OF THE INVESTOR AND ANOTHER.  AGAIN, WHILE THE DURATION OF THE
COMPANY'S OBLIGATION TO PAY IS INDEPENDENT OF ITS INVESTMENT
EXPERIENCE, THE AMOUNT OF EACH PAYMENT IS NOT A DIRECT MONEY OBLIGATION
BUT A FUNCTION OF THE STATUS OF THE COMPANY'S PORTFOLIO.  THE AMOUNTS
OF THE PAYMENTS ARE CALCULATED IN THIS FASHION:  THE DOLLAR VALUE OF
THE ACCUMULATED UNITS CREDITED TO THE INVESTOR THROUGHOUT THE YEARS IS
ASCERTAINED.  A STANDARD ANNUITY TABLE (INCLUDING A 3 1/2% INTEREST
ASSUMPTION) IS USED TO DETERMINE THE DOLLAR AMOUNT OF THE FIRST MONTHLY
PAY-OUT, BASED ON A CAPITAL CONTRIBUTION OF THE ACCUMULATED AMOUNT,
UNDER THE OPTION SELECTED BY THE INVESTOR.  THE NUMBER OF "ANNUITY
UNITS" (WHICH ARE FUNCTIONS OF THE FLUCTUATING ASSET VALUE OF THE
PORTFOLIO OF THE COMPANY) THAT THIS AMOUNT WOULD BUY IS COMPUTED, AND
THIS NUMBER OF ANNUITY UNITS IS PAID (TRANSMUTED INTO A VARYING CASH
PAYMENT) TO THE INVESTOR EVERY SUBSEQUENT MONTH FOR THE DURATION OF THE
COMPANY'S COMMITMENT UNDER THE OPTION SELECTED.  LIKE THAT OF AN
"ACCUMULATION UNIT" DURING THE PAY-IN PERIOD, THE VALUE IN DOLLARS OF
AN "ANNUITY UNIT" IS READJUSTED MONTHLY TO GIVE EFFECT TO THE
INVESTMENT INCOME OF THE SECURITIES IN THE COMPANY'S PORTFOLIO FOR THE
PERIOD, AS WELL AS TO THE CAPITAL GAINS AND LOSSES, REALIZED AND
UNREALIZED.  SINCE THE FIRST PAYMENT (WHICH FORMS THE BASIS FOR
MEASUREMENT OF THE SUBSEQUENT PAYMENTS) CONTAINS AN ASSUMED INTEREST
FACTOR, AND SINCE THE MONTHLY VALUATION CHANGE INCLUDES INCOME ITEMS -
INTEREST AND DIVIDENDS - RECEIVED IN RESPECT OF THE COMPANY'S
PORTFOLIO, TO AVOID PAYING DOUBLE "INTEREST" THE 3 1/2% ASSUMED
INTEREST FACTOR IS WRUNG OUT EVERY MONTH BY MULTIPLYING THE PRECEDING
MONTH'S VALUATION BY 0.9971.  (FN27)  AND THE 1.8% ANNUAL SURCHARGE ON
ASSET VALUE IS APPLIED ALSO.  (FN28) 

THE EFFECT OF THIS IS THAT THE INVESTOR, DURING THE PAY-OUT PERIOD,
IS IN ALMOST EVERY WAY AS MUCH A PARTICIPANT IN SOMETHING EQUIVALENT TO
AN INVESTMENT TRUST AS BEFORE.  HIS MONTHLY PAYMENT IS NOT REALLY A
DOLLAR PAYMENT, THOUGH IT IS CONVERTED INTO DOLLARS BEFORE IT IS PAID
TO HIM; IT IS A PAYMENT IN TERMS OF A PORTFOLIO OF SECURITIES.  IT IS
TRUE THAT THE COMPANY HAS A FIXED OBLIGATION TO CONTINUE PAYMENTS, AND
THAT THE DURATION AND THE AMOUNT OF THE PAYMENTS ARE NOT AFFECTED BY
COLLECTIVE LONGEVITY IN EXCESS OF THE COMPANY'S ASSUMPTIONS; THE
COMPANY'S OBLIGATION TO CONTINUE PAYMENTS IS NOT LIMITED IN ANY WAY BY
REFERENCE TO THE NUMBER OF UNITS OWNED BY ALL THE INVESTORS AT THE
START OF THEIR ANNUITY PERIODS.  IF THE LIVES OF THE GROUP OF INVESTORS
EXCEED THE LONGEVITY ASSUMPTIONS OF THE TABLE, THE PROCEEDS OF WHAT
MIGHT OTHERWISE HAVE BEEN CHARACTERIZED AS A VERY HIGH "LOADING CHARGE"
(8% AT ITS LOWEST APPLICATION, WITH 11% THE MINIMUM FOR THE FIRST 10
YEARS) AND A SUBSTANTIAL "ANNUAL MANAGEMENT FEE" (1.8% OF ASSET VALUE
ANNUALLY) WILL HAVE TO PROVIDE, WITH THE COMPANY'S OTHER SURPLUS AND
CAPITAL, ENOUGH TO CONTINUE PAYMENTS.  BUT THE INDIVIDUAL PAYMENT IS
STILL A PAYMENT MEASURED BASICALLY IN THE SAME WAY AS ONE'S INTEREST IN
AN INVESTMENT TRUST IS MEASURED.  AND IN A VERY REAL SENSE THE INVESTOR
IS MORE VITALLY INTERESTED IN THE INVESTMENT EXPERIENCE OF THE COMPANY
AT THIS PERIOD THAN HE EVER WAS IN THE PAY-IN PERIOD, AND IN A WAY MORE
VITALLY THAN ANY HOLDER OF AN OPEN-END INVESTMENT COMPANY CERTIFICATE,
OR SHARE IN A PUBLICLY TRADED CLOSED-END COMPANY EVER IS:  HE HAS
BECOME COMPLETELY "LOCKED IN."  HE OBVIOUSLY CANNOT DRAW DOWN THE
PRESENT VALUE OF HIS "UNITS" ONCE THE OPTION TO RECEIVE ANNUITY
PAYMENTS HAS BEEN EXERCISED; HE CANNOT "CASH IN HIS CHIPS" THAT HE
BOUGHT IN THE FAITH OF THE MANAGEMENT OF THE FUND; HIS RIGHTS ARE
TECHNICALLY ASSIGNABLE, BUT PRACTICALLY UNMARKETABLE SINCE THEY DEPEND
ON HIS INDIVIDUAL LIFE SPAN.  THE COMPANY CAN RADICALLY CHANGE
INVESTMENT POLICIES, CHANGE ADVISERS, DO WHATEVER IT PLEASES (SO LONG
AS IT DOES NOT RUN AFOUL OF THE MINIMAL INVESTMENT REGULATIONS OF THE
STATE), AND THERE IS NOTHING THE CONTRACT HOLDER CAN DO ABOUT IT.  IT
IS NOT RATIONAL TO SAY THAT CONGRESS ABANDONED THE VERY APPROPRIATE
PROTECTIONS OF THE INVESTMENT COMPANY ACT IN THIS INVESTOR'S CASE IN
FAVOR OF PROVISIONS OF STATE REGULATION THAT ARE QUITE IRRELEVANT TO
THE BASIC PROBLEMS OF PROTECTING HIM. 

THE RESPONDENTS SEEK TO EQUATE THIS CONTRACT WITH A FIXED-DOLLAR
"PARTICIPATING" ANNUITY SOLD BY A MUTUAL COMPANY, OR ONE SOLD BY A
STOCK COMPANY ON A PARTICIPATING BASIS.  THIS CONTENTION IS NOT
PERSUASIVE.  WHILE INVESTMENT EXPERIENCE IN A "PARTICIPATING" CONTRACT
CAN REDOUND TO THE BENEFIT OF THE POLICYHOLDER, THE CONTRACTS ARE SOLD
AS FIXED-DOLLAR OBLIGATIONS.  THE "DIVIDENDS" ARE PROMOTED AS SUCH. 
DURING THE PAY-IN PERIOD, THEY MIGHT BE THOUGHT OF AS A REDUCTION OF
PREMIUM.  (FN29) THEY MAY VERY WELL REPRESENT FAVORABLE MORTALITY RISK
EXPERIENCE, PARTICULARLY WHERE THE COMPANY'S INVESTMENTS ARE
CONSERVATIVE.  AND THE ANNUITY-PAYING INSURANCE COMPANY'S INVESTMENTS
ARE DOUBTLESS ADMINISTERED IN THE LIGHT OF THE FIXED OBLIGATION OF THE
COMPANY.  THE COMPANY IS NOT COMMITTED BY ITS LITERATURE TO PERFORM
PART OF THE JOB OF A COMMON-STOCK INVESTMENT TRUST.  (FN30)  NO ONE HAS
YET TRIED TO FOLLOW THE ACADEMIC SUGGESTION OF RESPONDENT VALIC, AND
REDUCE THE FIXED GUARANTEE OF A TRADITIONAL LIFE ANNUITY TO THE POINT
OF INSIGNIFICANCE AND MAKE THE REST OF THE RETURN TO THE CONTRACT
HOLDER VARIABLE, BY SELLING IT ON A "PARTICIPATING" BASIS.  (FN31)  THE
COMPARISON OF THE PREMIUM COST OF SUCH A CONTRACT TO ITS FIXED RETURN
MIGHT WELL MAKE IT UNSALABLE TO THE PUBLIC.  EVEN MORE UNPERSUASIVE IS
THE RESPONDENTS' ARGUMENT THAT EVEN IN A TRADITIONAL ANNUITY THE
POLICYHOLDER BEARS THE INVESTMENT RISK IN THE SENSE THAT HE STANDS THE
RISK OF THE COMPANY'S INSOLVENCY.  THE PREVENTION OF INSOLVENCY AND THE
MAINTENANCE OF "SOUND" FINANCIAL CONDITION IN TERMS OF FIXED-DOLLAR
OBLIGATIONS IS PRECISELY WHAT TRADITIONAL STATE REGULATION IS AIMED AT.
THE PROTECTION OF SHARE INTERESTS IN A FLUCTUATING, MANAGED FUND HAS
RECEIVED THE ATTENTION OF SPECIFIC FEDERAL LEGISLATION.  BOTH ARE
"INVESTMENT RISKS" IN A SENSE, BUT THEY DIFFER VASTLY IN KIND AND LEND
THEMSELVES TO DIFFERENT REGULATORY SCHEMES. 

ACCORDINGLY, WHILE THESE CONTRACTS CONTAIN INSURANCE FEATURES, THEY
CONTAIN TO A VERY SUBSTANTIAL DEGREE ELEMENTS OF INVESTMENT CONTRACTS
AS ADMINISTERED BY EQUITY INVESTMENT TRUSTS.  THEY CONTAIN THESE
ELEMENTS IN A WAY DIFFERENT IN KIND FROM THE WAY THAT INSURANCE AND
ANNUITY POLICIES DID WHEN CONGRESS WROTE THE EXEMPTIONS FOR THEM IN THE
1933 ACT AND THE 1940 ACT.  SINCE CONGRESS WAS INTENDING A BROAD
COVERAGE IN BOTH THESE REMEDIAL ACTS AND SINCE THESE CONTRACTS PRESENT
REGULATORY PROBLEMS OF THE VERY SORT THAT CONGRESS WAS ATTEMPTING TO
SOLVE BY THEM, I CONCLUDE THAT CONGRESS DID NOT INTEND TO EXCLUDE
CONTRACTS LIKE THESE BY REASON OF THE "INSURANCE" EXEMPTIONS. 

THIRD.  THE RESPONDENTS CONTEND THAT A REVERSAL OF THE JUDGMENT WILL
PUT THEM OUT OF BUSINESS.  THE REASON GIVEN IS THAT IF THE INVESTMENT
COMPANY ACT OF 1940 APPLIES TO THEM, THEY ARE PROBABLY CATEGORIZABLE
UNDER IT AS OPEN-END MANAGEMENT COMPANIES, (FN32) AND IT IS DECLARED
UNLAWFUL BY SEC. 18 OF THE ACT FOR AN OPEN-END COMPANY TO HAVE
OUTSTANDING ANY "SENIOR SECURITY," THAT IS, ANY SECURITY SENIOR TO ANY
OTHER CLASS OF SECURITIES.  THESE COMPANIES HAVE CAPITAL STOCK, AND THE
CONTRACTS IN QUESTION WOULD BE SECURITIES SENIOR TO THE STOCK.  (FN33)
IF ONE ASSUMES THAT THIS IS CORRECT, THERE IS OF COURSE THE POSSIBILITY
THAT THE SEC MIGHT USE ITS BROAD DISPENSING POWERS IN THIS REGARD, AND,
IN ANY EVENT, THE WHOLE POINT WOULD BE OF NO CONCERN AT ALL IF THE
CONTRACTS IN QUESTION WERE ISSUED BY MUTUAL COMPANIES.  (FN34)  BUT IN
THE FINAL ANALYSIS, IT IS NOT DECISIVE OF THE ISSUES HERE THAT A
HOLDING THAT THESE CONTRACTS ARE SUBJECT TO THE FEDERAL ACTS MIGHT
REQUIRE SOME MODIFICATION IN THE BUSINESS OF ISSUING THEM.  SINCE THESE
CONTRACTS ARE IN FACT COVERED BY THE ACTS, THERE CAN BE NO REASON WHY
THEIR ISSUERS SHOULD BE ABLE TO CARRY ON THE INVESTMENT BUSINESS IN A
WAY WHICH CONGRESS HAS FORBIDDEN.    SIMILARLY, IT MAY BE CONCEDED
FREELY THAT THIS FORM OF INVESTMENT CONTRACT MAY BE ONE OF GREAT
POTENTIAL BENEFIT TO THE PUBLIC.  SO, OF COURSE, MAY BE ORTHODOX OPEN
END INVESTMENT TRUSTS, AND THEY CLEARLY ARE REGULATED BY FEDERAL LAW. 
IN SHORT, NOTIONS THAT THIS FORM OF ARRANGEMENT IS A DESIRABLE ONE AND
THAT IT MIGHT BE WELL TO ALLOW IT TO EXIST FOR A WHILE IMMUNE FROM
FEDERAL REGULATION ARE NOT RELEVANT TO THE MATTER FOR DECISION. 
CONGRESS REGULATES BY GENERAL STATUTES.  THE PASSAGE OF A FEDERAL
REGULATORY STATUTE IS A DELICATE BALANCING OF MANY NATIONAL LEGISLATIVE
INTERESTS AND POLITICAL FORCES.  CONGRESS NEED NOT GO THROUGH THE
INITIAL TRAVAIL OF RE-ENACTING ITS GENERAL REGULATORY SCHEME EVERY TIME
A NEW FORM OF ENTERPRISE IS INTRODUCED, IF THAT NEW FORM FALLS WITHIN
THE SCHEME'S COVERAGE.  IF THERE IS DEEMED WISE ANY ADJUSTMENT OF THE
REGULATORY SCHEME IN THE LIGHT OF NEW DEVELOPMENTS IN THE SUBJECT
MATTER TO WHICH IT EXTENDS, CONGRESS MAY MAKE IT. 

FN1  48 STAT. 74, AS AMENDED, 15 U.S.C. SECS. 77A-77AA. 

FN2  54 STAT. 789, AS AMENDED, 15 U.S.C. SECS. 80A-1 TO 80A-52. 

THE COURT'S OPINION MAKES IT CLEAR WHY THE ISSUE IS IDENTICAL UNDER
THE MCCARRAN-FERGUSON ACT, 59 STAT. 33, AS AMENDED, 15 U.S.C. SECS.
1011-1015. 

FN3  DEFINED AS A "COMPANY WHICH IS ORGANIZED AS AN INSURANCE
COMPANY, WHOSE PRIMARY AND PREDOMINANT BUSINESS ACTIVITY IS THE WRITING
OF INSURANCE OR THE REINSURING OF RISKS UNDERWRITTEN BY INSURANCE
COMPANIES, AND WHICH IS SUBJECT TO SUPERVISION BY THE INSURANCE
COMMISSIONER OR A SIMILAR OFFICIAL OR AGENCY OF A STATE  ...  ." 
INVESTMENT COMPANY ACT SEC. 2(A)(17).  THE BUSINESS OF THE RESPONDENTS
HERE CONSISTS SOLELY OF ISSUING CONTRACTS OF THE NATURE OF THOSE IN
QUESTION HERE. 

FN4  UNDER THE SECURITIES ACT, IT WOULD APPEAR THAT IN THE CASE OF
THE ORDINARY INSURANCE POLICY, THE EXEMPTION WOULD BE JUST CONFIRMATORY
OF THE POLICY'S NONCOVERAGE UNDER THE DEFINITION OF SECURITY.  SEE H.R.
REP. NO. 85, 73RD CONG., 1ST SESS. 15.  THE STATUS OF AN ORDINARY
ANNUITY CONTRACT MIGHT BE DIFFERENT.  BUT, IN ANY EVENT, ABSENT THE
SPECIFIC INSURANCE EXCLUSION, IT WOULD APPEAR THAT THE VARIABLE ANNUITY
CONTRACT WOULD COME UNDER THE TERM "INVESTMENT CONTRACT" OR POSSIBLY
"CERTIFICATE OF INTEREST OR PARTICIPATION IN ANY PROFIT-SHARING
AGREEMENT" IN THE DEFINITION OF SECURITY, SEC. 2(1).  ON THE OTHER
HAND, EVEN AN ORDINARY INSURANCE COMPANY MIGHT BE AN INVESTMENT COMPANY
WITHIN THE MEANING OF SEC. 3(A)(1) AND SEC. 3(A)(3) OF THE INVESTMENT
COMPANY ACT, WERE IT NOT FOR THE SPECIFIC EXEMPTION.  THE CHIEF COUNSEL
OF THE SEC'S INVESTMENT TRUST STUDY TESTIFIED THAT THE SPECIFIC
EXEMPTION WAS NECESSARY IN THE LIGHT OF THE DEFINITION.  SEE HEARINGS
BEFORE SUBCOMMITTEE OF THE SENATE COMMITTEE ON BANKING AND CURRENCY ON
S. 3580, 76TH CONG., 3D SESS. 181.  A FORTIORI A COMPANY ISSUING THE
SORT OF CONTRACTS IN QUESTION HERE WOULD BE INCLUDED IF THERE WERE NO
QUESTION OF THE INSURANCE EXEMPTION. 

FN5  NO SUBSEQUENT DEVELOPMENT IN STATE INSURANCE REGULATION APPEARS
TO HAVE OCCURRED WHICH WOULD BETTER ADAPT THE SYSTEM TO REGULATION OF
COMPANIES PERFORMING THE FUNCTIONS OF INVESTMENT TRUSTS; BUT OF COURSE,
IN ANY EVENT, THE ISSUE IS THE SCOPE OF STATE REGULATION IN 1933 AND
1940.  THE BASIC PATTERNS DO NOT APPEAR TO HAVE CHANGED AND PRESENT-DAY
REGULATION (APART FROM ANY MEASURES WHICH MAY HAVE BEEN TAKEN
SPECIFICALLY TO DEAL WITH THE CONTRACTS IN QUESTION) CAN BE EXAMINED TO
SEE THE SORT OF REGULATION THAT CONGRESS WAS DEFERRING TO IN THE ACTS. 

FN6  "  ...  ANY NOTE, STOCK, TREASURY STOCK, BOND, DEBENTURE,
EVIDENCE OF INDEBTEDNESS, CERTIFICATE OF INTEREST OR PARTICIPATION IN
ANY PROFIT-SHARING AGREEMENT, COLLATERAL-TRUST CERTIFICATE,
PREORGANIZATION CERTIFICATE OR SUBSCRIPTION, TRANSFERABLE SHARE,
INVESTMENT CONTRACT, VOTING-TRUST CERTIFICATE, CERTIFICATE OF DEPOSIT
FOR A SECURITY, FRACTIONAL UNDIVIDED INTEREST IN OIL, GAS, OR OTHER
MINERAL RIGHTS, OR, IN GENERAL, ANY INTEREST OR INSTRUMENT COMMONLY
KNOWN AS A 'SECURITY,' OR ANY CERTIFICATE OF INTEREST OR PARTICIPATION
IN, TEMPORARY OR INTERIM CERTIFICATE FOR, RECEIPT FOR, GUARANTEE OF, OR
WARRANT OR RIGHT TO SUBSCRIBE TO OR PURCHASE, ANY OF THE FOREGOING." 
SECURITIES ACT SEC. 2(1), 15 U.S.C.  SEC. 77(B)(1). 

FN7  SECURITIES ACT SECS. 7 AND 10 AND SCHEDULES A AND B. 

FN8  A LEADING TEXT ON LIFE INSURANCE OUTLINES THE AREAS OF STATE
LIFE INSURANCE REGULATION AS FOLLOWS:  THE ESTABLISHMENT OF A STANDARD
OF SOLVENCY FOR THE SETTING UP OF MINIMUM RESERVES; THE ORGANIZATION OF
DOMESTIC COMPANIES AND THE ADMISSION OF FOREIGN INSURERS; THE RENDITION
OF ANNUAL STATEMENTS AND THE MAKING (FREQUENTLY ON A COOPERATIVE BASIS
AMONG THE STATES) OF PERIODIC EXAMINATIONS; OVERSEEING THE EQUITABLE
TREATMENT OF POLICYHOLDERS BY PRESCRIBING CONTRACT TERMS AND CHECKING
MISREPRESENTATION, DISCRIMINATION, REBATING AND "TWISTING"; LICENSING
AND REGULATING THE CONDUCT OF AGENTS; AND SUPERVISION OF INVESTMENTS IN
ACCORD WITH A STATUTORY PERMISSIVE LIST.  HUEBNER AND BLACK, LIFE
INSURANCE (5TH ED. 1958), PP. 518-524. 

FN9  SEE SEC. 3(A)(2).  SPECIFIC REGULATORY PROVISIONS FOR THIS SORT
OF COMPANY ARE FOUND IN SEC. 28.  RESERVE REQUIREMENTS ARE ESTABLISHED
BY THE FEDERAL ACT AS A METHOD OF REGULATION. 

FN10  SEC. 8. 

FN11  SEC. 15. 

FN12  SEC. 12. 

FN13  SEC. 13. 

FN14  SEC. 18. 

FN15  SEC. 20. 

FN16  SEC. 22. 

FN17  SEC. 27. 

FN18  SEC. 30(D). 

FN19  THE IMPORTANT INSURANCE STATE OF CONNECTICUT HAS.  SEE SPELLACY
V. AMERICAN LIFE INS. ASSN., 144 CONN. 346, 355, 131 A.2D 834, 839.  IN
ANY EVENT, THESE CONTRACTS ARE ANNUITIES, "LIFE ANNUITIES," IN THE
SENSE THAT THEY PROVIDE FOR PAYMENTS AT PERIODIC INTERVALS FOR A PERIOD
MEASURED BY A HUMAN LIFE OR LIVES, WITH THE PAYMENTS REPRESENTING BOTH
AN INCOME ELEMENT AND A LIQUIDATION OF CONTRIBUTED CAPITAL, WITH NO
FURTHER RETURN OF THE INVESTOR'S CAPITAL AFTER THE ANNUITY PERIOD
RUNS.   CF. HEUBNER AND BLACK, OP. CIT., SUPRA, AT 99-100.  OF COURSE,
THERE ARE ANNUITY CONTRACTS WHICH PROVIDE PAYMENTS ONLY FOR TERMS OF
YEARS.  SEE VANCE, INSURANCE (3D ED. 1951), P. 1020.  THESE HAVE NO
MORTALITY FACTOR, AND, IT WOULD APPEAR, NO INSURANCE ELEMENT AT ALL. 
ONE OF THE ALTERNATIVE SETTLEMENT OPTIONS UNDER ONE RESPONDENT'S
POLICIES IS A "VARIABLE" FORM OF SUCH AN ARRANGEMENT. 

FN20  STATE STATUTES MAKE IT CLEAR THAT THE WRITING OF TRADITIONAL
ANNUITIES IS PART OF THE USUAL BUSINESS OF LIFE INSURANCE COMPANIES. 
SEE, E.G., CAL. INSURANCE CODE SEC. 101; CONN. GEN. STAT., 1949, C.
295, SEC. 6144; SMITH-HURD ILL. ANN. STAT., TIT. 73, SEC. 616; N.Y.
INSURANCE LAW, SECS. 46, 190.  CF. HUEBNER AND BLACK, OP. CIT., SUPRA,
AT 92; MEHR AND OSLER, MODERN LIFE INSURANCE (REV. ED. 1956), PP. 69
70. 

FN21  THESE PRECISE PERCENTAGES ARE:  FIRST YEAR, 44.79%; SECOND,
85.27%; THIRD, 85.82%; FOURTH, 86.45%; FIFTH, 87.17%.  THE PATTERN FOR
THE SECOND THROUGH FIFTH YEARS WOULD APPEAR TO REFLECT THE DIMINISHING
COST OF DECLINING TERM INSURANCE SOLD AS PART OF THE CONTRACT. 

FN22  THE COST OF SUCH INSURANCE, BOUGHT SEPARATELY, WOULD BE ABOUT
2% OF THE FIRST 5-YEARS' PAY-INS.  LONGER TERMS THAN THE 5-YEAR ARE
AVAILABLE.  THE CONTRACT IS SOLD WITHOUT TERM LIFE INSURANCE AND
WITHOUT WAIVER OF PREMIUM ON DISABILITY TO PERSONS WHO ARE DEEMED
"UNINSURABLE."  THE FIXED-DOLLAR TERM INSURANCE AND THE DISABILITY
WAIVER RISKS OF VALIC ARE HEAVILY REINSURED IN ORTHODOX INSURANCE
COMPANIES. 

FN23  EVEN BEFORE THERE ARE CONTRACT HOLDERS, A "UNIT" IS SET UP IN
TERMS OF THE THEN VALUE OF THE COMPANY'S INVESTMENT PORTFOLIO.  WHILE
THE NUMBER OF UNITS CREDITED TO INVESTORS DOES NOT ACCORDINGLY ACCOUNT
FOR THE ENTIRE VALUE OF THE "FUND," THE VALUE OF THE UNITS FLUCTUATES
AS THE VALUE OF THE COMPANY'S INVESTMENT PORTFOLIO FLUCTUATES IN THE
SAME FASHION AS IF THEY WERE SHARES IN AN OPEN-END INVESTMENT FUND. 

FN24  THE SURCHARGE IS ACCOUNTED FOR IN THE SAME WAY AS THAT PART OF
THE PREMIUM GROSS INCOME THAT DOES NOT GO TOWARD THE CREDITING OF
ACCUMULATION UNITS.  THE ANALOGY IS TO AN ANNUAL "MANAGEMENT FEE" IN AN
INVESTMENT TRUST.  OF COURSE, THE SURCHARGE IS NOT IN FACT PAID TO
ANYONE AS A FEE FOR ANY SPECIFIC PURPOSE; BUT TO THE EXTENT THAT IT IS
MADE, A PORTION OF THE COMPANY'S ASSETS IS FREED FROM BEING CHARGED
WITH THE VALUATION OF UNITS CREDITED TO INVESTORS.  TO THIS EXTENT, THE
COMPANY'S ASSETS BECOME AVAILABLE FOR THE PAYMENT OF EXPENSES, FOR THE
SATISFACTION OF ITS OBLIGATIONS IN THE EVENT THE INVESTORS AS A GROUP
OUTLIVE THEIR TABULAR EXPECTANCY, AND FOR DIVIDENDS TO COMMON
STOCKHOLDERS. 

FN25  A CONCRETE EXAMPLE OF A FEW YEARS' HYPOTHETICAL EXPERIENCE
DURING THE PAY-IN PERIOD MAY ILLUSTRATE THE WORKINGS OF THESE
CONTRACTS.  IT IS BASED ON THE SPECIFIC CONTRACT DESCRIBED IN THE
TEXT. 

ASSUME A UNIT VALUE OF $1 AT THE START OF THE CONTRACT.  THE
INVESTOR'S FIRST ANNUAL PAYMENT OF $1,000, LESS THE DISABILITY WAIVER
PREMIUM AND THE "LOADING CHARGE," BUYS 430 UNITS AT THE $1 RATE. 

ASSUME A FAVORABLE YEAR IN THE COMPANY'S PORTFOLIO'S MARKET
PERFORMANCE; NET CAPITAL GAINS (REALIZED AND UNREALIZED) OF 15% AND
INTEREST AND DIVIDENDS OF 3% OF ORIGINAL VALUE, ALL NET OF INCOME
TAXES.  ON THE AVERAGE ASSET VALUE AT MONTH ENDS DURING THE YEAR, THE
1.8% ANNUAL CHARGE WOULD COME TO ABOUT 2% OF ORIGINAL VALUE.  THIS
WOULD MAKE THE VALUE OF A UNIT AFTER A YEAR ABOUT $1.16. 

OF THE SECOND ANNUAL PREMIUM OF $1,000, $819 GOES TOWARD BUYING 706
UNITS AT THE NEW RATE OF $1.16.  THUS AFTER THE SECOND ANNUAL PREMIUM,
THE INVESTOR HAS 1,136 UNITS TO HIS CREDIT. 

ASSUME A VERY FAVORABLE SECOND YEAR IN THE MARKET, WITH NET CAPITAL
GAINS OF 25% OF THE YEAR'S BEGINNING VALUE (29 CENTS A UNIT) AND INCOME
ITEMS OF 5% OF BEGINNING VALUE (ABOUT 6 CENTS A UNIT), ALL NET OF
INCOME TAXES.  THE ANNUAL CHARGE OF 1.8% WILL COME TO ABOUT 2.4 CENTS
PER UNIT, AND THE RESULTING VALUE AT YEAR END WILL BE ABOUT $1.49 PER
UNIT. 

OF THE THIRD ANNUAL PREMIUM OF $1,000, $824 GOES TOWARD BUYING 553
UNITS AT THE NEW RATE OF $1.49.   THUS AFTER THE THIRD ANNUAL PREMIUM,
THE INVESTOR HAS 1,689 UNITS TO HIS CREDIT. 

ASSUME A BEAR MARKET THE THIRD YEAR, WITH A 12% NET CAPITAL SHRINKAGE
IN THE COMPANY'S PORTFOLIO (ABOUT 18 CENTS A UNIT) AND INCOME AT 2% OF
BEGINNING VALUE (3 CENTS A UNIT), ALL NET OF INCOME TAXES.  THE 1.8%
CHARGE WOULD COME TO ABOUT 2.5 CENTS A UNIT.  THESE ADJUSTMENTS WOULD
GIVE A YEAR END UNIT VALUE OF ABOUT $1.31 A UNIT. 

IF INSTEAD OF GOING ON WITH THE CONTRACT, THE INVESTOR THEN "CASHED
IN HIS CHIPS," HE WOULD GET $2,212.59 FOR HIS 1,689 UNITS, LESS A $10
SURRENDER CHARGE. 

FN26  THE LEAST-SUBTLE EXAMPLE OF THE ABSENT PROTECTIONS IS THAT
REGARDING INVESTMENT POLICY.  THE STATE INVESTMENT LISTS ARE MINIMA;
WITHIN THE LIMITS OF THE LISTS, THE COMPANIES HAVE VERY BROAD
DISCRETION IN MAKING INVESTMENTS, SEE MEHR AND OSLER, OP. CIT., SUPRA,
AT 612, AND THERE APPEARS TO BE NO CONTROL AT ALL OVER THEIR CHANGING
THEIR INVESTMENT POLICIES.  THE DIFFERENCE IN EMPHASIS BETWEEN THE TWO
FORMS OF REGULATION AND THE OBVIOUS CORRESPONDENCE OF THE CONTRACT IN
QUESTION WITH AN INVESTMENT TRUST IN THIS ESSENTIAL REGULATORY MATTER
HARDLY NEEDS UNDERSCORING. 

EVEN THE MINIMAL CONTROLS OVER INVESTMENT POLICY FURNISHED BY THE
PRESCRIBED LISTS ARE ADMINISTERED PRIMARILY BY ONE STATE, THE STATE OF
INCORPORATION.  NEW YORK'S INSURANCE LAW, SEC. 90, APPLYING IN TERMS
THE LOCAL CONTROLS, AT LEAST "IN SUBSTANCE," TO FOREIGN COMPANIES DOING
BUSINESS WITHIN THE STATE, APPEARS THE EXCEPTION RATHER THAN THE RULE. 
SEE VANCE, OP. CIT., SUPRA, AT 43.  OTHER STATES INSIST ON THEIR OWN
REQUIREMENTS AS TO PART OF THE ASSETS OF A FOREIGN INSURANCE COMPANY
DOING A LOCAL BUSINESS.  SEE CAL. INSURANCE CODE SEC. 1153.  SOME
STATES EXPLICITLY MAKE SOME DEFERENCE TO THE STATE OF INCORPORATION. 
SEE SMITH-HURD ILL. ANN. STAT., TIT. 73, SEC. 723(E). 

FN27  THE RECIPROCAL OF 1,000 PLUS MONTHLY INTEREST AT THE RATE OF 3
1/2% PER ANNUM. 

FN28  A CONCRETE HYPOTHETICAL EXAMPLE OF THE WORKINGS OF THE CONTRACT
IN THE PAY-OUT PERIOD MAY BE USEFUL.  ASSUME THAT THE INVESTOR
DESCRIBED IN THE TEXT AND IN FOOTNOTE 25 DID NOT CASH IN HIS CONTRACT,
BUT KEPT IT DURING THE ENTIRE 30-YEAR PAY-IN PERIOD.  ASSUME THAT HE
HAS ACCUMULATED, THROUGH PREMIUM-PAYMENT "PURCHASES" AT VARYING PRICES
THROUGHOUT THE YEARS, 14,000 UNITS AND THAT THE VALUE OF A UNIT HAS
MOUNTED TO $3 OVER THE YEARS.  THE INVESTOR CAN NOW TAKE HIS $42,000 IN
CASH, IF HE CHOOSES.  BUT LET US ASSUME THAT HE IS HEALTHY AND WITHOUT
DEPENDENTS, SO THAT HE IS MOVED TO ELECT THE OPTION OF A STRAIGHT LIFE
ANNUITY.  THIS CAPITAL CONTRIBUTION OF $42,000 BY A 65-YEAR-OLD MALE
WOULD BUY A FIXED-DOLLAR ANNUITY OF $286 A MONTH.  THIS IS IN FACT WHAT
OUR INVESTOR WOULD GET THE FIRST MONTH.  BUT THIS FIRST MONTHLY PAYMENT
WILL BE USED TO FIX THE NUMBER OF ANNUITY UNITS HE WILL RECEIVE MONTHLY
FOR THE REST OF HIS LIFE. 

ASSUME THAT THE VALUE AT THIS TIME OF AN ANNUITY UNIT IS $2.  (WHILE
THE VALUE OF AN ANNUITY UNIT TENDS TO MOVE IN THE SAME DIRECTION AS THE
VALUE OF AN ACCUMULATION UNIT, IT DIFFERS FROM IT BECAUSE EVERY MONTH
IT IS MULTIPLIED BY 0.9971 TO "WRING OUT" THE ASSUMED INTEREST FACTOR
IN THE ANNUITY TABLE.  SO OVER THE YEARS, THE CURRENT VALUES OF THE TWO
SORTS OF UNITS WILL DRIFT APART, EVEN THOUGH THEY MOVE THE SAME WAY
WITH THE FLUCTUATIONS OF THE COMPANY'S PORTFOLIO.)  AT THE $2 RATE, THE
FIRST MONTHLY PAYMENT IS 143 UNITS, AND THIS NUMBER OF UNITS WILL BE
PAID THE INVESTOR MONTHLY FOR LIFE. 

ASSUME THAT THERE IS A SHARP BREAK IN THE MARKET DURING THE FIRST
MONTH OF THE PAY-OUT PERIOD.  (ACTUALLY, THERE IS A ONE-MONTH LAG IN
COMPUTATION, BUT FOR THE PURPOSES OF DEMONSTRATION THIS CAN BE
IGNORED.)  SUPPOSE THIS MARKET BREAK SHRINKS THE CAPITAL VALUE OF THE
COMPANY'S PORTFOLIO BY 8% (16 CENTS A UNIT).  ASSUME INCOME ITEMS
DURING THE MONTH AT 3% PER ANNUM (0.5 CENTS).  THEN DEDUCT THE
OMNIPRESENT 1.8% ANNUAL CHARGE (0.3 CENTS).  THIS PUTS THE CURRENT
VALUE AT $1.842; THE 0.9971 MULTIPLIER MUST BE APPLIED TO WRING OUT THE
INTEREST ASSUMPTION IN THE ANNUITY TABLE.  THIS GIVES AN ADJUSTED VALUE
OF $1.8367.  THE INVESTOR IS THEN PAID, FOR HIS SECOND MONTHLY PAYMENT,
143 UNITS AT THIS NEW RATE, OR $262.65.    THE RECOMPUTATION OF THE
UNIT VALUE TAKES PLACE MONTHLY, AND EVERY MONTH THE INVESTOR IS PAID
143 UNITS AT THE NEW RATE, WHATEVER THIS MAY COME TO IN DOLLARS. 

FN29  SEE MEHR AND OSLER, OP. CIT., SUPRA, AT 583; CF. FULLER V.
METROPOLITAN LIFE INS.  CO., 70 CONN. 647, 666, 41 A. 4, 11.    FN30
IN THE TRADITIONAL FORM OF INSURANCE, THE APPRECIATION POTENTIAL OF
COMMON STOCKS IS SAID NOT TO BE THE PREDOMINANT REASON FOR AN INSURER'S
INVESTING IN THEM.  WHILE MANY STATES ALLOW INVESTMENT IN THEM IN
VARYING DEGREES, COMMENTATORS EMPHASIZE THAT THE PURPOSE OF SUCH
INVESTMENT IS PRIMARILY DIVERSIFICATION OF INVESTMENT; IN CERTAIN
INDUSTRIES, COMMON STOCK MAY BE THE ONLY SORT OF AVAILABLE INVESTMENT. 
HUEBNER AND BLACK, OP. CIT., SUPRA, AT 505.  OF COURSE, THE PRIMARY
INVESTMENT AIM OF THE TRADITIONAL INSURER IS PRESERVATION OF DOLLAR
CAPITAL WITH INCOME.  ID., AT 507. 

FN31  VALIC'S HYPOTHETICAL IS AN ANNUITY BASED ON AN INVESTMENT
RETURN OF 1/2% PER ANNUM AND AN AVERAGE MORTALITY AT 110 YEARS. 

FN32  ACCORDING TO SEC. 5, "'OPEN-END COMPANY' MEANS A MANAGEMENT
COMPANY (I.E., AN INVESTMENT COMPANY OTHER THAN A UNIT INVESTMENT TRUST
OR A FACE-AMOUNT CERTIFICATE COMPANY, SEC. 4) WHICH IS OFFERING FOR
SALE OR HAS OUTSTANDING ANY REDEEMABLE SECURITY OF WHICH IT IS THE
ISSUER."  THE REDEEMABILITY OF THESE CONTRACTS DURING THE PAY-IN PERIOD
WOULD APPEAR TO MAKE THEIR ISSUER COME UNDER THIS DEFINITION.  EVEN IF
THE COMPANIES WERE CONSIDERED CLOSED-END COMPANIES, THEY ARGUE THAT
OTHER PROVISIONS OF SEC. 18 WOULD POSE VERY DIFFICULT PROBLEMS FOR
THEM.  SEE SEC. 18(A). 

FN33  THE COMPANIES SAY THAT THIS IS BECAUSE THEIR CONTRACTS ARE DEBT
OBLIGATIONS.  IT IS QUITE DOUBTFUL WHETHER THE CONTRACTS CAN BE
DESCRIBED AS DEBTS; CERTAINLY THEY ARE NOT MUCH MORE OF A DEBT THAN A
REDEEMABLE SHARE IN AN ORTHODOX OPEN-END COMPANY IS; HERE THE
REDEMPTION FEATURE IS EXPRESSED IN OUTRIGHT REDEEMABILITY DURING THE
PAY-IN PERIOD AND IN LIQUIDATION ON AN ANNUITY BASIS IN THE PAY-OUT
PERIOD.  BUT IN ANY EVENT, WHETHER THE CONTRACTS ARE DEBTS OR NOT, THEY
HAVE PRIORITY OVER THE COMPANIES' STOCK, AND THE PROVISIONS DEALING
WITH SENIOR SECURITIES WOULD APPEAR TO COVER THEM. 

FN34  THE MOST BASIC PURPOSE OF THE PROVISION MIGHT BE VIEWED BY THE
SEC AS THE PROTECTION, IN THE CASE OF THE TRADITIONAL OPEN-END COMPANY,
OF THE INVESTMENT CERTIFICATE HOLDERS FROM THE CREATION OF SECURITIES
SENIOR TO THEIR INTERESTS (AS WELL AS PREVENTING, IN THE INTEREST OF
THEIR PURCHASERS, THE CREATION OF A CLASS OF "SENIOR" SECURITIES WHICH
WOULD BE SENIOR ONLY TO FREELY REDEEMABLE JUNIOR SECURITIES).  SINCE IT
IS THE SENIOR SECURITIES HERE WHICH ARE THE ANALOGS OF OPEN-END
INVESTMENT TRUST CERTIFICATES, QUITE THE CONTRARY SITUATION MIGHT BE
THOUGHT TO BE PRESENTED.  THE SEC'S DISPENSING AUTHORITY IN REGARD TO
THE INVESTMENT COMPANY ACT IS FOUND IN SEC. 6(C), WHICH PROVIDES:  "THE
COMMISSION, BY RULES AND REGULATIONS UPON ITS OWN MOTION, OR BY ORDER
UPON APPLICATION, MAY CONDITIONALLY OR UNCONDITIONALLY EXEMPT ANY
PERSON, SECURITY, OR TRANSACTION, OR ANY CLASS OR CLASSES OF PERSONS,
SECURITIES, OR TRANSACTION, FROM ANY PROVISION OR PROVISIONS OF THIS
TITLE OR OF ANY RULE OR REGULATION THEREUNDER, IF AND TO THE EXTENT
THAT SUCH EXEMPTION IS NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST
AND CONSISTENT WITH THE PROTECTION OF INVESTORS AND THE PURPOSES FAIRLY
INTENDED BY THE POLICY AND PROVISIONS OF THIS TITLE." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

THE ISSUE IN THESE CASES IS WHETHER VARIABLE ANNUITY LIFE INSURANCE
COMPANY OF AMERICA (VALIC) AND THE EQUITY ANNUITY LIFE INSURANCE
COMPANY (EALIC) ARE SUBJECT TO REGULATION BY THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933 AND THE INVESTMENT
COMPANY ACT OF 1940 WITH RESPECT TO THEIR VARIABLE ANNUITY BUSINESS. 

SEC. 77CA)(8), PROVIDES THAT THE STATUTE SHALL NOT APPLY TO: 

"ANY INSURANCE OR ENDOWMENT POLICY OR ANNUITY CONTRACT OR OPTIONAL
ANNUITY CONTRACT, ISSUED BY A CORPORATION SUBJECT TO THE SUPERVISION OF
THE INSURANCE COMMISSIONER, BANK COMMISSIONER, OR ANY AGENCY OR OFFICER
PERFORMING LIKE FUNCTIONS, OF ANY STATE OR TERRITORY OF THE UNITED
STATES OR THE DISTRICT OF COLUMBIA." 

U.S.C. SEC. 80A-3(C)(3), PUTS OUTSIDE THE COVERAGE OF THE ACT "ANY  ...
INSURANCE COMPANY," AND SEC. 2(A)(17), 54 STAT. 789, 793, 15 U.S.C.
SEC. 80A-2(A)(17), DEFINES AN INSURANCE COMPANY AS: 

"A COMPANY WHICH IS ORGANIZED AS AN INSURANCE COMPANY, WHOSE PRIMARY
AND PREDOMINANT BUSINESS ACTIVITY IS THE WRITING OF INSURANCE OR THE
REINSURING OF RISKS UNDERWRITTEN BY INSURANCE COMPANIES, AND WHICH IS
SUBJECT TO SUPERVISION BY THE INSURANCE COMMISSIONER OR A SIMILAR
OFFICIAL OR AGENCY OF A STATE; OR ANY RECEIVER OR SIMILAR OFFICIAL OR
ANY LIQUIDATING AGENT FOR SUCH A COMPANY, IN HIS CAPACITY AS SUCH." 

THESE TWO INSURANCE COMPANIES ARE ORGANIZED UNDER THE LIFE INSURANCE
ACT OF THE DISTRICT OF COLUMBIA, 35 D.C. CODE, 1951, SECS. 35-301 TO 35
803, AND ARE SUBJECT TO REGULATION BY THE SUPERINTENDENT OF INSURANCE
OF THE DISTRICT OF COLUMBIA, WHO HAS APPROVED THE ANNUITY POLICIES
WRITTEN BY THEM.  AT THE TIME OF TRIAL VALIC HAD ALSO QUALIFIED TO DO
BUSINESS IN ARKANSAS, KENTUCKY, AND WEST VIRGINIA, AND ITS ANNUITY
POLICIES HAD LIKEWISE BEEN APPROVED BY THE INSURANCE DEPARTMENTS OF
THOSE STATES.  (FN1)  BOTH COMPANIES IN THE DISTRICT OF COLUMBIA, AND
VALIC IN THE OTHER STATES, OFFER THEIR POLICIES TO THE PUBLIC ONLY
THROUGH INSURANCE AGENTS DULY LICENSED BY THE LOCAL INSURANCE
AUTHORITY. 

VARIABLE ANNUITY POLICIES ARE A RECENT DEVELOPMENT IN THE INSURANCE
BUSINESS DESIGNED TO MEET INFLATIONARY TRENDS IN THE ECONOMY BY
SUBSTITUTING FOR ANNUITY PAYMENTS IN FIXED-DOLLAR AMOUNTS PAYMENTS IN
FLUCTUATING AMOUNTS, MEASURED ULTIMATELY BY THE COMPANY'S SUCCESS IN
INVESTING THE PREMIUM PAYMENTS RECEIVED FROM ANNUITANTS.  ONE OF THE
EARLY PIONEERS IN THIS FIELD WAS TEACHERS INSURANCE AND ANNUITY
ASSOCIATION, A NEW YORK REGULATED LIFE INSURANCE ORGANIZATION ENGAGED
IN SELLING ANNUITIES TO COLLEGE PERSONNEL.  THE ASSOCIATION IN 1950
MADE EXHAUSTIVE STUDIES INTO THE FEASIBILITY AND SOUNDNESS OF VARIABLE
ANNUITIES.  TWO YEARS LATER, IT INCORPORATED COLLEGE RETIREMENT
EQUITIES FUND, A COMPANION COMPANY UNDER JOINT MANAGEMENT WITH TEACHERS
INSURANCE, WHICH, SUBJECT TO REGULATION UNDER THE NEW YORK INSURANCE
LAW, COMMENCED OFFERING SUCH ANNUITY CONTRACTS IN THE TEACHING
PROFESSION.  (FN2)  THE FIRST LIFE INSURANCE COMPANY TO OFFER SUCH
CONTRACTS GENERALLY APPEARS TO HAVE BEEN THE PARTICIPATING ANNUITY LIFE
INSURANCE COMPANY, WHICH SINCE 1954 HAS BEEN SELLING VARIABLE ANNUITY
POLICIES UNDER THE SUPERVISION OF THE ARKANSAS INSURANCE AUTHORITIES. 
VALIC AND EALIC ENTERED THE FIELD IN 1955 AND 1956 RESPECTIVELY. 

THE CHARACTERISTICS OF A TYPICAL VARIABLE ANNUITY CONTRACT HAVE BEEN
ADUMBRATED BY THE MAJORITY.  IT IS SUFFICIENT TO NOTE HERE THAT, AS THE
MAJORITY CONCLUDES, AS THE TWO LOWER COURTS FOUND, AND AS THE SEC
ITSELF RECOGNIZES, IT MAY FAIRLY BE SAID THAT VARIABLE ANNUITY
CONTRACTS CONTAIN BOTH "INSURANCE" AND "SECURITIES" FEATURES.  IT IS
CERTAINLY BEYOND QUESTION THAT THE "MORTALITY" ASPECT OF THESE
ANNUITIES - THAT IS THE ASSUMPTION BY THE COMPANY OF THE ENTIRE RISK OF
LONGEVITY - INVOLVES NOTHING OTHER THAN CLASSIC INSURANCE CONCEPTS AND
PROCEDURES, AND I DO NOT UNDERSTAND HOW THAT FEATURE CAN BE SAID TO BE
"NOT SUBSTANTIAL," DETERMINING AS IT DOES, APART FROM OPTIONS, THE
COMMENCEMENT AND DURATION OF ANNUITY PAYMENTS TO THE POLICYHOLDER.  ON
THE OTHER HAND IT CANNOT BE DENIED THAT THE INVESTMENT POLICIES
UNDERLYING THESE ANNUITIES, AND THE STAKE OF THE ANNUITANTS IN THEIR
SUCCESS OR FAILURE, PLACE THE INSURANCE COMPANY IN A POSITION CLOSELY
RESEMBLING THAT OF A COMPANY ISSUING CERTIFICATES IN A PERIODIC PAYMENT
INVESTMENT PLAN.  EVEN SO, ANALYSIS BY FRAGMENTIZATION IS AT BEST A
HAZARDOUS BUSINESS, AND IN THIS INSTANCE HAS, IN MY OPINION, LED THE
COURT TO UNSOUND LEGAL CONCLUSIONS.  IT IS IMPORTANT TO KEEP IN MIND
THAT THESE ARE NOT CASES WHERE THE LABEL "ANNUITY" HAS SIMPLY BEEN
ATTACHED TO A SECURITIES SCHEME, OR WHERE THE OFFERING COMPANIES ARE
TRAVELING UNDER FALSE COLORS, IN AN EFFORT TO AVOID FEDERAL
REGULATION.  THE BONA FIDES OF THIS NEW DEVELOPMENT IN THE FIELD OF
INSURANCE IS BEYOND DISPUTE. 

THE COURT'S HOLDING THAT THESE TWO COMPANIES ARE SUBJECT TO SEC
REGULATION STEMS FROM ITS PREOCCUPATION WITH A CONSTRICTED "COLOR
MATCHING" APPROACH TO THE CONSTRUCTION OF THE RELEVANT FEDERAL STATUTES
WHICH FAILS TO TAKE ADEQUATE ACCOUNT OF THE HISTORICAL CONGRESSIONAL
POLICY OF LEAVING REGULATION OF THE BUSINESS OF INSURANCE ENTIRELY TO
THE STATES.  IT WOULD BE CARRYING COALS TO NEWCASTLE TO RE-EXAMINE HERE
THE HISTORY OF THAT POLICY WHICH WAS FULLY CANVASSED IN THE SEVERAL
OPINIONS OF THE JUSTICES IN UNITED STATES V. SOUTH-EASTERN UNDERWRITERS
ASSN., 322 U.S. 533, AND WHICH WAS AGAIN IMPLICITLY RECOGNIZED BY THIS
COURT AS RECENTLY AS LAST TERM WHEN, IN FEDERAL TRADE COMM'N V.
NATIONAL CASUALTY CO., 357 U.S. 560, WE DECLINED TO GIVE A NIGGARDLY
CONSTRUCTION TO THE MCCARRAN ACT.  SUFFICE IT TO SAY THAT IN
CONSEQUENCE OF THIS COURT'S DECISION 90 YEARS AGO IN PAUL V. VIRGINIA,
8 WALL.  168, AND THE MANY CASES FOLLOWING IT, (FN3) THERE HAD COME TO
BE "WIDESPREAD DOUBT" PRIOR TO THE TIME THE SECURITIES AND INVESTMENT
COMPANY ACTS WERE PASSED "THAT THE FEDERAL GOVERNMENT COULD ENTER THE
FIELD OF INSURANCE REGULATION AT ALL."  WILBURN BOAT CO. V. FIREMAN'S
FUND INS. CO., 348 U.S. 310, 318; SEE ALSO PRUDENTIAL INS. CO. V.
BENJAMIN, 328 U.S. 408, 414. 

I CAN FIND NOTHING IN THE HISTORY OF THE SECURITIES ACT OF 1933 WHICH
SAVORS IN THE SLIGHTEST DEGREE OF A PURPOSE TO DEPART FROM OR DILUTE
THIS TRADITIONAL FEDERAL "HANDS OFF" POLICY RESPECTING INSURANCE
REGULATION.  ON THE CONTRARY, THE EXEMPTION OF INSURANCE FROM THAT ACT,
WHICH IS COUCHED IN THE BROADEST TERMS, REFLECTED NOT MERELY ADHERENCE
TO TRADITION BUT ALSO COMPLIANCE WITH A SUPPOSED COMMAND OF THE
CONSTITUTION.  IN A STUDY OF THE PROPOSED ACT, THE DEPARTMENT OF
COMMERCE CONCLUDED THAT THE LEGISLATION COULD BE BOTTOMED ON THE
FEDERAL POWER OVER COMMERCE BECAUSE SECURITIES DID HAVE THE INDEPENDENT
GENERAL COMMERCIAL EXISTENCE AND VALUE WHICH THE PAUL DECISION HAD
FOUND LACKING IN INSURANCE POLICIES.  SEE A STUDY OF THE ECONOMIC AND
LEGAL ASPECTS OF THE PROPOSED FEDERAL SECURITIES ACT, REPRINTED IN
HEARINGS BEFORE HOUSE COMMITTEE ON BANKING AND CURRENCY ON S. 875, 73D
CONG., 1ST SESS. 312, AT 330, AND IN HEARINGS BEFORE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON H.R. 4314, 73D CONG., 1ST SESS. 87,
AT 105.  THIS DISTINCTION BETWEEN SECURITIES AND INSURANCE, MISTAKEN OR
NOT, UNDERLAY THE PASSAGE OF THE FINAL BILL.  WHEN THE PROPOSED ACT WAS
CONSIDERED BY THE SENATE AND HOUSE COMMITTEES, IT DID NOT CONTAIN AN
EXPRESS EXEMPTION OF INSURANCE.  THE HOUSE COMMITTEE EXPLAINED THAT THE
EXEMPTION IN THE FINAL BILL (SEC. 3(A)(8) OF THE ACT): 

"MAKES CLEAR WHAT IS ALREADY IMPLIED IN THE ACT, NAMELY, THAT
INSURANCE POLICIES ARE NOT TO BE REGARDED AS SECURITIES SUBJECT TO THE
PROVISIONS OF THE ACT.  THE INSURANCE POLICY AND LIKE CONTRACTS ARE NOT
REGARDED IN THE COMMERCIAL WORLD AS SECURITIES OFFERED TO THE PUBLIC
FOR INVESTMENT PURPOSES.  THE ENTIRE TENOR OF THE ACT WOULD LEAD, EVEN
WITHOUT THIS SPECIFIC EXEMPTION, TO THE EXCLUSION OF INSURANCE POLICIES
FROM THE PROVISIONS OF THE ACT, BUT THE SPECIFIC EXEMPTION IS INCLUDED
TO MAKE MISINTERPRETATION IMPOSSIBLE."  H.R. REP.  NO. 85, 73D CONG.,
1ST SESS. 15. 

THAT THIS DISTINCTION STEMMED FROM THE FEARED IMPLICATIONS OF THE
PAUL DECISION APPEARS FROM THE HOUSE DEBATES.  SEE 73D CONG., 1ST
SESS., 77 CONG. REC. 2936, 2937, 2938, 2946.  MOREOVER, TWO DAYS AFTER
THE SENATE BEGAN CONSIDERATION OF THE PROPOSED ACT, SENATOR ROBINSON
INTRODUCED A RESOLUTION (S.J. RES. 51) CALLING FOR A CONSTITUTIONAL
AMENDMENT BECAUSE, IN HIS VIEW, "THE NATIONAL GOVERNMENT AT PRESENT,
HAS NO AUTHORITY WHATEVER OVER INSURANCE COMPANIES."  73D CONG., 1ST
SESS., 77 CONG. REC. 3109. 

SIMILARLY, I CAN FIND NOTHING IN THE HISTORY OF THE INVESTMENT
COMPANY ACT OF 1940 WHICH POINTS IN ANY WAY TO A CHANGE IN FEDERAL
POLICY ON THIS SCORE.  HERE TRADITION, PERHAPS MORE THAN CONSTITUTIONAL
DOUBT, EXPLAINS THE EXEMPTION OF INSURANCE COMPANIES FROM THE ACT.  IN
HEARINGS BEFORE THE HOUSE COMMITTEE, COMMISSIONER HEALY OF THE SEC
DISCUSSED THE "FACE-AMOUNT INSTALLMENT CERTIFICATES" ISSUED ON THE
BASIS OF THE COMPARISON WITH SAVINGS BANK DEPOSITS AND INSURANCE
POLICIES."  THE MAJOR FACTOR APPEARING TO DISTINGUISH THESE INVESTMENT
COMPANIES FROM INSURANCE COMPANIES FOR PURPOSES OF FEDERAL CONTROL WAS
THE STRICT STATE REGULATION PRESENT OVER INSURANCE POLICIES BUT ABSENT
OVER INVESTMENT CERTIFICATES.  HEARINGS BEFORE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON H.R. 10065, 76TH CONG., 3D SESS. 61
62.  LIKEWISE, IN THE SENATE DEBATES, PRESERVATION OF STATE REGULATION
OVER INSURANCE COMPANIES APPEARS AS THE CRUCIAL FACTOR DISTINGUISHING
THEM FROM INVESTMENT TRUSTS.  76TH CONG., 3D SESS., 86TH CONG. REC.
10070.  STATING THAT "THE BILL HAS NOTHING TO DO WITH THE REGULATION OF
INSURANCE COMPANIES," SENATOR BYRNES WENT ON TO SAY:  "THE PLATFORMS OF
BOTH POLITICAL PARTIES HAVE URGED SUPERVISION OF INSURANCE BY THE
SEVERAL STATES, BUT NOT REGULATION BY THE FEDERAL GOVERNMENT."  ID., AT
10071.  SEE ALSO UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN.,
SUPRA, AT 584, 591-592, N. 12 (DISSENTING OPINION).    IN 1944, THIS
COURT REMOVED THE SUPPOSED CONSTITUTIONAL BASIS FOR EXEMPTION OF
INSURANCE BY HOLDING, IN UNITED STATES V. SOUTH-EASTERN UNDERWRITERS
ASSN., SUPRA, THAT THE BUSINESS OF INSURANCE WAS SUBJECTED TO FEDERAL
REGULATION UNDER THE COMMERCE POWER.  CONGRESS WAS QUICK TO RESPOND. 
IT FORTHWITH ENACTED THE MCCARRAN ACT, 59 STAT. 33, 15 U.S.C. SECS.
1011-1015, WHICH ON ITS FACE DEMONSTRATES THE PURPOSE "BROADLY TO GIVE
SUPPORT TO THE EXISTING AND FUTURE STATE SYSTEMS FOR REGULATING AND
TAXING THE BUSINESS OF INSURANCE," PRUDENTIAL INS. CO. V. BENJAMIN,
SUPRA, AT 429, AND "TO ASSURE THAT EXISTING STATE POWER TO REGULATE
INSURANCE WOULD CONTINUE."  WILBURN BOAT CO. V. FIREMAN'S FUND INS.
CO., SUPRA, AT 319.  THUS, RATHER THAN ENCOURAGING CONGRESS TO ENTER
THE FIELD OF INSURANCE, THE SOUTH-EASTERN DECISION SPURRED REITERATION
OF ITS UNDEVIATING POLICY OF ABSTENTION. 

IN THIS FRAMEWORK OF HISTORY THE COURSE FOR US IN THESE CASES SEEMS
TO ME PLAIN.  WE SHOULD DECLINE TO ADMIT THE SEC INTO THIS
TRADITIONALLY STATE REGULATORY DOMAIN. 

ADMITTEDLY THE VARIABLE ANNUITY WAS NOT IN THE PICTURE WHEN THE
SECURITIES AND INVESTMENT COMPANY ACTS WERE PASSED.  IT IS A NEW
DEVELOPMENT COMBINING BOTH SUBSTANTIAL INSURANCE AND SECURITIES
FEATURES IN AN EXPERIMENT DESIGNED TO ACCOMMODATE ANNUITY INSURANCE
COVERAGE TO CONTINGENCIES OF THE PRESENT DAY ECONOMIC CLIMATE.  (FN4)
THIS, HOWEVER, SHOULD NOT BE ALLOWED TO OBSCURE THE FACT THAT CONGRESS
INTENDED WHEN IT ENACTED THESE STATUTES TO LEAVE THE FUTURE REGULATION
OF THE BUSINESS OF INSURANCE WHOLLY WITH THE STATES.  THIS INTENT,
REPEATEDLY EXPRESSED IN A HISTORY OF WHICH THE SECURITIES AND
INVESTMENT COMPANY ACTS WERE ONLY A PART, IN MY VIEW DEMANDS THAT BONA
FIDE EXPERIMENTS IN THE INSURANCE FIELD, EVEN THOUGH A PARTICULAR
DEVELOPMENT MAY ALSO HAVE SECURITIES ASPECTS, BE CLASSED WITHIN THE
FEDERAL EXEMPTION OF INSURANCE, AND NOT WITHIN THE FEDERAL REGULATION
OF SECURITIES.  (FN5)  CERTAINLY THESE STATUTES BREATHE NO NOTION OF
CONCURRENT REGULATION BY THE SEC AND STATE INSURANCE AUTHORITIES.  THE
FACT THAT THEY DO NOT SERVES TO REINFORCE THE VIEW THAT THE
CONGRESSIONAL EXEMPTION OF INSURANCE WAS BUT ANOTHER MANIFESTATION OF
THE HISTORIC FEDERAL POLICY LEAVING REGULATION OF THE BUSINESS OF
INSURANCE EXCLUSIVELY TO THE STATES.  (FN6) 

IT IS ASSERTED THAT STATE REGULATION, AS IT EXISTED WHEN THE
SECURITIES AND INVESTMENT COMPANY ACTS WERE PASSED, WAS INADEQUATE TO
PROTECT ANNUITANTS AGAINST THE RISKS INHERENT IN THE VARIABLE ANNUITY
AND THAT THEREFORE SUCH CONTRACTS SHOULD BE CONSIDERED WITHIN THE ORBIT
OF SEC REGULATION.  THE COURT IS AGREED THAT WE SHOULD NOT "FREEZE" THE
CONCEPT OF INSURANCE AS IT THEN EXISTED.  BY THE SAME TOKEN WE SHOULD
NOT PROCEED ON THE ASSUMPTION THAT THE THRUST OF STATE REGULATION IS
FROZEN.  AS THE INSURANCE BUSINESS DEVELOPS NEW CONCEPTS THE STATES
ADJUST AND DEVELOP THEIR CONTROLS.  THIS IS IN THE TRADITION OF STATE
REGULATION AND FEDERAL ABSTENTION.  IF THE INNOVATION OF FEDERAL
CONTROL IS NEVERTHELESS TO BE DESIRED, IT IS FOR THE CONGRESS, NOT THIS
COURT, TO EFFECT. 

I WOULD AFFIRM. 

FN1  SINCE THE TRIAL VALIC HAS ALSO QUALIFIED IN ALABAMA AND NEW
MEXICO, AND EALIC IN NORTH DAKOTA. 

FN2  BY THE END OF 1956 THE COLLEGE RETIREMENT FUND HAD ISSUED SUCH
ANNUITIES TO MORE THAN 31,000 INDIVIDUALS, AND THE VALUE OF ITS ANNUITY
UNITS HAD INCREASED FROM $10 TO $18.51. 

FN3  THE CASES ARE COLLECTED IN UNITED STATES V. SOUTH-EASTERN
UNDERWRITERS ASSN., SUPRA, AT 544, N. 18. 

FN4  SEE MORRISSEY, DISPUTE OVER THE VARIABLE ANNUITY, 35 HARV. BUS. 
REV.  75 (1957). 

FN5  IT IS WORTH OBSERVING THAT IN REPORTING THE PROPOSED SECURITIES
ACT OF 1933 THE HOUSE COMMITTEE STATED THAT INSURANCE POLICIES "AND
LIKE CONTRACTS" WERE TO BE EXEMPT FROM FEDERAL REGULATION.  SEE ANTE,
P. 98. 

FN6  IN CONTRAST, SEC. 18 OF THE SECURITIES ACT, 48 STAT. 74, 85, 15
U.S.C. SEC. 77R, PROVIDES THAT THE ACT SHALL NOT AFFECT THE
JURISDICTION OF STATE SECURITIES COMMISSIONS, THUS RECOGNIZING A SYSTEM
OF DUAL REGULATION WHERE THE EXEMPTIVE PROVISIONS ARE NOT APPLICABLE. 
THE INVESTMENT COMPANY ACT HAS A SIMILAR PROVISION, SEC. 50.  54 STAT.
789, 846, 15 U.S.C. SEC. 80A-49. 
..END :


















TAK SHAN FONG V. UNITED STATES 359 U.S. 102 


NO. 110.  ARGUED FEBRUARY 24, 1959 - DECIDED MARCH 23, 1959 - 254 F.2D
4, AFFIRMED. 


PETITIONER SEEKS NATURALIZATION UNDER SEC. 1 OF THE ACT OF JUNE 30,
1953, WHICH PROVIDES FOR THE NATURALIZATION OF ALIENS WHO SERVED AT
LEAST 90 DAYS IN THE ARMED FORCES BETWEEN JUNE 24, 1950, AND JULY 1,
1955, "(1) HAVING BEEN LAWFULLY ADMITTED TO THE UNITED STATES FOR
PERMANENT RESIDENCE, OR (2) HAVING BEEN LAWFULLY ADMITTED TO THE UNITED
STATES, AND HAVING BEEN PHYSICALLY PRESENT WITHIN THE UNITED STATES FOR
A SINGLE PERIOD OF AT LEAST ONE YEAR AT THE TIME OF ENTERING THE ARMED
FORCES."  HAVING BEEN LAWFULLY IN THE UNITED STATES FOR A SHORT PERIOD
IN 1951 ON A SEAMAN'S 29-DAY PASS, PETITIONER ENTERED UNLAWFULLY ON
JANUARY 27, 1952, AND REMAINED THROUGH HIS INDUCTION INTO THE ARMY ON
MAY 4, 1953, IN WHICH HE SERVED UNTIL HIS HONORABLE DISCHARGE ON MAY 3,
1955.  HELD:  HE WAS NOT ENTITLED TO NATURALIZATION, BECAUSE THE
STATUTE, PROPERLY CONSTRUED, REQUIRES THAT THE ENTRY INTO THE UNITED
STATES WHICH LEADS TO THE ALIEN'S PHYSICAL PRESENCE FOR THE PERIOD
PRECEDING HIS INDUCTION INTO THE ARMY BE A LAWFUL ENTRY.  PP. 102-107. 

TAK SHAN FONG V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A NATIVE AND CITIZEN OF CHINA, SEEKS NATURALIZATION
PURSUANT TO THE PROVISIONS OF AN ACT OF CONGRESS, PASSED IN 1953,
DESIGNED TO FACILITATE THE NATURALIZATION OF ALIENS WHO SERVED IN OUR
ARMED FORCES DURING THE GENERAL PERIOD OF THE KOREAN HOSTILITIES. 
(FN1)  THE STATUTE PROVIDES FOR THE NATURALIZATION OF ALIENS SERVING AT
LEAST 90 DAYS IN THE ARMED FORCES AFTER JUNE 24, 1950, AND NOT LATER
THAN JULY 1, 1955: 

"(1) HAVING BEEN LAWFULLY ADMITTED TO THE UNITED STATES FOR PERMANENT
RESIDENCE, OR (2) HAVING BEEN LAWFULLY ADMITTED TO THE UNITED STATES,
AND HAVING BEEN PHYSICALLY PRESENT WITHIN THE UNITED STATES FOR A
SINGLE PERIOD OF AT LEAST ONE YEAR AT THE TIME OF ENTERING THE ARMED
FORCES  ...  ." 

PETITIONER FIRST ENTERED THE UNITED STATES ON AUGUST 24, 1951, AT
HONOLULU ON A SEAMAN'S 29-DAY PASS, AND DEPARTED FROM THE COUNTRY WITH
HIS SHIP.  ON JANUARY 27, 1952, PETITIONER AGAIN ENTERED THE UNITED
STATES AT NEWPORT NEWS, WHERE THE VESSEL ON WHICH HE WAS EMPLOYED WAS
THEN TOUCHING.  THE EXACT CIRCUMSTANCES OF THIS ENTRY ARE DISPUTED, BUT
IT IS CONCEDED ON ALL SIDES THAT IT WAS UNLAWFUL.  PETITIONER DID NOT
DEPART WITH HIS SHIP, BUT REMAINED WITHIN THE UNITED STATES.  HE WAS
APPREHENDED IN JUNE 1952 AND DEPORTATION PROCEEDINGS WERE COMMENCED
AGAINST HIM; BUT THE PROCEEDINGS WERE HALTED WHEN IT BECAME KNOWN THAT
ON MAY 4, 1953, HE HAD BEEN INDUCTED INTO THE ARMY.  HE SERVED
HONORABLY UNTIL HIS DISCHARGE ON MAY 3, 1955, AND ON DECEMBER 22, 1955,
INSTITUTED THE PRESENT PROCEEDINGS BASED ON THE STATUTE TO WHICH WE
HAVE REFERRED.  (FN2)  THE DISTRICT COURT GRANTED HIS PETITION FOR
NATURALIZATION, BUT THE COURT OF APPEALS REVERSED.  254 F.2D 4.  WE
GRANTED CERTIORARI.   358 U.S. 811. 

CONGRESS HAS SHOWN VARYING DEGREES OF LIBERALITY IN GRANTING SPECIAL
NATURALIZATION RIGHTS TO ALIENS SERVING IN OUR ARMED FORCES AT VARIOUS
TIMES.  FOR EXAMPLE, THE IMMIGRATION AND NATIONALITY ACT OF 1952 ALLOWS
SUCH RIGHTS TO THOSE HAVING SERVED HONORABLY IN WORLD WAR I OR DURING
THE PERIOD SEPTEMBER 1, 1939, TO DECEMBER 31, 1946, IF AT THE TIME OF
THEIR INDUCTION OR ENLISTMENT THEY SIMPLY WERE PHYSICALLY PRESENT IN
THE UNITED STATES OR CERTAIN NAMED OUTLYING TERRITORIES.  (FN3)  ON THE
OTHER HAND, THAT ACT'S GENERAL PROVISION ALLOWING ALIENS WITH THREE
YEARS' ARMED SERVICE AT ANY TIME TO BE NATURALIZED FREE OF CERTAIN
RESIDENCE REQUIREMENTS (FN4) PROVIDES NO EXEMPTION FROM THE REQUIREMENT
THAT THEY HAVE BEEN "LAWFULLY ADMITTED TO THE UNITED STATES FOR
PERMANENT RESIDENCE."  (FN5)  WE MUST EXAMINE THE EXTENT TO WHICH
CONGRESS HAS MADE THESE RIGHTS AVAILABLE HERE, IN THIS STATUTE AIMED AT
SERVICE DURING THE KOREAN HOSTILITIES.  PETITIONER CONTENDS THAT, UNDER
CLAUSE (2), ONE YEAR'S PRESENCE IN THE UNITED STATES AT THE TIME OF
INDUCTION ENTITLES HIM TO THEM IF AT ANY TIME THERETOFORE HE HAD BEEN
LAWFULLY ADMITTED TO THE COUNTRY.  HE RELIES ON HIS LAWFUL ADMITTANCE
AND BRIEF STAY IN THE COUNTRY AT HONOLULU IN 1951 AS PROVIDING THIS. 
THE GOVERNMENT CONTENDS THAT THE LAWFUL ADMITTANCE MUST HAVE BEEN THE
MEANS WHEREBY THE ALIEN COMMENCED HIS YEAR'S PRESENCE IN THE COUNTRY,
AND THAT ACCORDINGLY THE LAWFUL HONOLULU ENTRY IS IRRELEVANT.  WE ARE
IN AGREEMENT WITH THE GOVERNMENT'S VIEW OF THE STATUTE. 

WHILE PERHAPS A VERBAL CONSTRUCTION OF THE STATUTE CAN BE MADE AS NOT
IMPLYING ANY CONNECTION BETWEEN THE REQUIRED LAWFUL ADMITTANCE AND THE
REQUIRED YEAR'S PRESENCE, WE THINK THE ONLY FAIR AND NATURAL
CONSTRUCTION OF THE WORDS IS THAT ONE IS IMPLIED.  AS DISTINGUISHED
FROM ITS POLICY TOWARD WORLD WAR I AND II SERVICE, CONGRESS WAS NOT
PREPARED TO ALLOW SPECIAL NATURALIZATION RIGHTS TO ALIENS SERVING AT
THE TIME OF KOREA SIMPLY IF THEY ENTERED THE SERVICE WHILE PHYSICALLY,
FOR ANY LENGTH OF TIME AND LAWFULLY OR UNLAWFULLY, WITHIN THE UNITED
STATES.  NOR WAS IT PREPARED TO MAKE ONE YEAR'S RESIDENCE ALONE THE
CONDITION; IT ALSO IMPOSED THE REQUIREMENT OF LAWFUL ADMITTANCE.  IT
WOULD NOT BE A MEANINGFUL REQUIREMENT TO ATTRIBUTE TO CONGRESS IF IT
COULD HAVE BEEN SATISFIED BY A LAWFUL ENTRY, FOLLOWED BY DEPARTURE,
BEFORE AND UNCONNECTED WITH THE COMMENCEMENT OF THE YEAR'S PRESENCE. 
WE BELIEVE THAT CONGRESS MUST HAVE BEEN REFERRING TO THE LAST ENTRY
BEFORE THE YEAR'S PRESENCE - THE ENTRY INTO THE COUNTRY WHICH PROVIDED
THE OCCASION FOR THAT PRESENCE.  CF. BONETTI V. ROGERS, 356 U.S. 691. 
UNDER THIS CONSTRUCTION, CLAUSE (2) OF THE STATUTE REQUIRES A "SINGLE
PERIOD" OF RESIDENCE COMMENCING WITH A LAWFUL ADMISSION AND CONTINUING
FOR A YEAR THEREAFTER.  IT DOES NOT DEMAND THAT THE ALIEN'S CONTINUING
STATUS IN THE COUNTRY BE LAWFUL, BUT IT DOES MAKE THAT REQUIREMENT OF
THE ENTRY WHICH GIVES RISE TO HIS PRESENCE. 

SUCH LEGISLATIVE HISTORY AS IS RELEVANT TO THE MEANING OF THE STATUTE
BEARS OUT THIS CONSTRUCTION.   THE ACT WAS PASSED IN THE FIRST SESSION
OF THE EIGHTY-THIRD CONGRESS, AND WHEN THE BILL THAT BECAME THE ACT WAS
FIRST BROUGHT TO THE HOUSE FLOOR AFTER COMMITTEE CONSIDERATION DURING
THAT SESSION, (FN6) THE MEMBER REPORTING IT STATED THAT IT WAS
IDENTICAL WITH THE LAW THAT EXISTED DURING "THE WAR" (PRESUMABLY WORLD
WAR II) (FN7) WITH THE EXCEPTION THAT IT APPLIED ONLY TO ALIENS WHO
WERE "LEGALLY AND LAWFULLY IN THE UNITED STATES."  99 CONG. REC. 2639. 
THIS MUST BE READ IN THE CONTEXT OF THE HOUSE COMMITTEE REPORT'S
STATEMENT THAT "LAWFUL ADMISSION" WAS A PREREQUISITE TO THE BILL'S
BENEFITS, AND ITS EXPLANATION THAT IT HAD REJECTED A PROPOSAL OF THE
JUSTICE DEPARTMENT THAT WOULD HAVE REQUIRED THE PRESENCE OF THE ALIEN
AT THE TIME OF ENTRANCE INTO THE ARMED SERVICES ALSO BE LAWFUL.  THE
COMMITTEE HAD FELT THAT THE ALIEN SHOULD NOT BE SADDLED WITH "THE
TECHNICALITIES INVOLVED IN CONNECTION WITH THE CONTINUANCE OF SUCH
LAWFUL STATUS AT THE TIME OF ENTERING THE ARMED FORCES."  H.R. REP. NO.
223, 83D CONG., 1ST SESS., P. 4.  THE HOUSE BILL REQUIRED ONLY LAWFUL
ADMISSION AND PHYSICAL PRESENCE AT THE TIME OF ENTERING THE SERVICE;
(FN8) LATER THE SENATE INSERTED THE ONE YEAR'S PRESENCE REQUIREMENT,
(FN9) BUT WE DO NOT PERCEIVE ANY CHANGE IN THE DISTINCTION WE HAVE SET
FORTH ABOVE.  TO US, THIS INDICATES THAT CONGRESS DESIRED THAT THE
ALIEN'S PRESENCE IN THE COUNTRY BE THE CONSEQUENCE OF A LAWFUL
ADMISSION, EVEN THOUGH THE CONTINUANCE OF HIS STAY BE BEYOND THE TERMS
ON WHICH HE WAS ADMITTED.  IT IS TRUE THAT THE PRESENT STATUTE DOES NOT
IN TERMS STATE THE NEXUS BETWEEN ADMISSION AND THE REQUIRED PERIOD OF
RESIDENCE AS POSITIVELY AS DID A 1932 ALIEN VETERANS' STATUTE WHICH
PETITIONER URGES ON US FOR COMPARISON, AND WHICH REQUIRED THAT THE
ALIEN HAVE "RESIDED CONTINUOUSLY WITHIN THE UNITED STATES FOR AT LEAST
TWO YEARS, IN PURSUANCE OF A LEGAL ADMISSION FOR PERMANENT RESIDENCE." 
(FN10)  SEC. 1, ACT OF MAY 25, 1932, C. 203, 47 STAT. 165.  BUT, AS WE
HAVE EXPLAINED, CONGRESS DID NOT WISH THIS ACT TO IMPLY A REQUIREMENT
THAT THE CONTINUANCE OF THE ALIEN'S PRESENCE HERE BE LAWFUL, AND SUCH
LANGUAGE MIGHT HAVE DONE SO.  WE FIND THE LANGUAGE IT IN FACT USED WAS
APT TO DRAW THE LINES WE HAVE INDICATED ABOVE. 

OF COURSE, WE MUST BE RECEPTIVE TO THE PURPOSE IMPLICIT IN
LEGISLATION OF THIS SORT, TO EXPRESS THE GRATITUDE OF THE COUNTRY
TOWARD ALIENS WHO RENDER SERVICE IN ITS ARMED FORCES IN ITS DEFENSE. 
BUT THAT DOES NOT WARRANT OUR RATIONALIZING TO AN AMBIGUITY WHERE
FAIRLY CONSIDERED NONE EXISTS, OR EXTENDING THE GENEROSITY OF THE
LEGISLATION PAST THE LIMITS TO WHICH CONGRESS WAS WILLING TO GO. THE
SERVICE PETITIONER HAS RENDERED THIS COUNTRY MIGHT INSPIRE LEGISLATIVE
RELIEF IN HIS BEHALF; BUT HERE WE TAKE THE STATUTE AS IT STANDS, AND
UNDER IT THE JUDGMENT OF THE COURT OF APPEALS WAS CORRECT.  AFFIRMED. 

FN1  SEC. 1 OF THE ACT OF JUNE 30, 1953, C. 162, 67 STAT. 108, 8
U.S.C. (SUPP. V) SEC.  1440A. 

FN2  THE STATUTE REQUIRES THAT PETITIONS FOR NATURALIZATION FILED
UNDER IT BE FILED NOT LATER THAN DECEMBER 31, 1955. 

FN3  SEC. 329, 66 STAT. 250, 8 U.S.C. SEC. 1440.  SEE ALSO NOTE 7,
INFRA. 

FN4  SEC. 328, 66 STAT. 249, U.S.C. SEC. 1439. 

FN5  SEC. 318, 66 STAT. 244, 8 U.S.C. SEC. 1429.  THE 1953 ACT
EXPLICITLY EXEMPTS THOSE WHO CAN QUALIFY UNDER ITS TERMS FROM THE
REQUIREMENTS OF SEC. 318. 

FN6  THERE HAD BEEN ACTIVITY WITHIN CONGRESS IN THIS DIRECTION DURING
THE EIGHTY-SECOND CONGRESS, BUT NO BILL PASSED.  SEE H.R. REP. NO.
1176, 82D CONG., 1ST SESS., S. REP.  NO. 1713, 82D CONG., 2D SESS. 

FN7  THE STATUTE ACTUALLY IN EFFECT DURING WORLD WAR II WAS SEC. 701
OF THE NATIONALITY ACT OF 1940, ADDED BY TITLE X OF THE SECOND WAR
POWERS ACT, 1942, 56 STAT. 182.  THE REQUIREMENT OF LAWFUL ADMITTANCE,
AT FIRST MADE BY THE ACT, WAS SUBSTANTIALLY DISPENSED WITH THROUGH AN
AMENDMENT BY THE ACT OF DECEMBER 22, 1944, C. 662, 58 STAT. 886. 

FN8  THE BILL THEN EXTENDED TO "ANY PERSON, NOT A CITIZEN, WHO, AFTER
JUNE 24, 1950, AND NOT LATER THAN JULY 1, 1955, HAS ACTIVELY SERVED OR
ACTIVELY SERVES, HONORABLY, IN THE ARMED FORCES OF THE UNITED STATES
FOR A PERIOD OR PERIODS TOTALING NOT LESS THAN 30 DAYS AND WHO, HAVING
BEEN LAWFULLY ADMITTED TO THE UNITED STATES  ...  SHALL HAVE BEEN AT
THE TIME OF ENTERING THE ARMED FORCES WITHIN SUCH AREA  ...  ."  SEE 99
CONG. REC. 2639. 

FN9  SEE S. REP. NO. 378, 83D CONG., 1ST SESS., P. 4.  THE
ALTERNATIVES NOW FOUND IN CLAUSE (1), ADMISSION FOR PERMANENT
RESIDENCE, WAS ALSO INTRODUCED IN THE SENATE. 

FN10  THE PROVISION RELATES TO THE PERIOD BEFORE FILING THE
NATURALIZATION PETITION, RATHER THAN BEFORE ENTRANCE INTO THE SERVICE,
BUT THIS DIFFERENCE DOES NOT AFFECT THE COMPARISON ASSERTED. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE DOUGLAS
DISSENT. 
..END :














SIMS V. UNITED STATES 359 U.S. 108 


NO. 88.  ARGUED FEBRUARY 26, 1959 - DECIDED MARCH 23, 1959 - 252 F.2D
434, AFFIRMED. 


UNDER SEC. 6331 OF THE INTERNAL REVENUE CODE OF 1954, A DIRECTOR OF
INTERNAL REVENUE ISSUED NOTICES OF LEVY DIRECTED TO A STATE AND SERVED
THEM ON PETITIONER, THE STATE AUDITOR, SEIZING THE ACCRUED SALARIES OF
CERTAIN EMPLOYEES OF THE STATE AGAINST WHOM THE COMMISSIONER OF
INTERNAL REVENUE HAD ASSESSED INCOME TAX DEFICIENCIES.  PETITIONER
REFUSED TO HONOR THE LEVIES AND ISSUED AND DELIVERED TO THE TAXPAYERS
WARRANTS FOR THEIR ACCRUED SALARIES.  THE FEDERAL GOVERNMENT THEN
BROUGHT THIS SUIT AGAINST PETITIONER UNDER SEC.  6332 TO RECOVER FROM
HIM PERSONALLY THE SUMS HE HAD SO PAID TO THE TAXPAYERS IN DISOBEDIENCE
OF THE GOVERNMENT'S LEVIES.  HELD: 

1.  SECTIONS 6331 AND 6332 AUTHORIZE A LEVY ON THE ACCRUED SALARIES
OF THE EMPLOYEES OF A STATE TO COLLECT FEDERAL INCOME TAXES.  PP. 110
113. 

2.  PETITIONER, AS STATE AUDITOR, WAS A PERSON "OBLIGATED WITH
RESPECT TO" THE ACCRUED AND SEIZED SALARIES, WITHIN THE MEANING OF SEC.
6332, AND THEREFORE WAS PERSONALLY LIABLE FOR REFUSING TO SURRENDER
THEM TO THE GOVERNMENT.  PP. 113-114. 

SIMS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THE COMMISSIONER OF INTERNAL REVENUE ASSESSED AN INCOME TAX
DEFICIENCY AGAINST EACH OF THREE RESIDENTS OF WEST VIRGINIA AND
FORWARDED THE ASSESSMENT LISTS TO THE DIRECTOR OF INTERNAL REVENUE AT
PARKERSBURG FOR COLLECTION.  THE DEFICIENCIES REMAINING UNPAID FOR MORE
THAN 10 DAYS AFTER DEMAND FOR PAYMENT AND THE TAXPAYERS BEING THEN
EMPLOYED BY THE STATE OF WEST VIRGINIA, THE DIRECTOR ISSUED NOTICES OF
LEVY DIRECTED TO THE STATE OF WEST VIRGINIA AND SERVED THEM ON
PETITIONER, AS THE STATE AUDITOR, SEIZING THE ACCRUED SALARIES OF THE
TAXPAYERS PURSUANT TO SEC. 6331 OF THE 1954 INTERNAL REVENUE CODE, 26
U.S.C. (SUPP.  V) SEC. 6331.  (FN1)  PETITIONER REFUSED TO HONOR THE
LEVIES AND INSTEAD ISSUED AND DELIVERED PAYROLL WARRANTS TO THE
TAXPAYERS FOR THEIR THEN ACCRUED NET SALARIES AGGREGATING $519.71. 
(FN2)  THEREAFTER THE GOVERNMENT BROUGHT THIS SUIT IN THE FEDERAL
DISTRICT COURT AGAINST PETITIONER UNDER SEC. 6332 OF THE 1954 INTERNAL
REVENUE CODE, 26 U.S.C. (SUPP. V) SEC. 6332, (FN3) TO RECOVER FROM HIM
PERSONALLY THE $519.71 THAT HE HAD SO PAID TO THE TAXPAYERS IN
DISOBEDIENCE TO AND DEFEAT OF THE GOVERNMENT'S LEVIES.  THE DISTRICT
COURT RENDERED JUDGMENT FOR THE GOVERNMENT AND THE COURT OF APPEALS
AFFIRMED, 252 F.2D 434.  CERTIORARI WAS SOUGHT ON THE GROUNDS THAT SEC.
6331 DOES NOT AUTHORIZE A LEVY ON THE ACCRUED SALARIES OF EMPLOYEES OF
A STATE, AND THAT, IF IT BE HELD THAT IT DOES, PETITIONER WAS NOT A
PERSON "OBLIGATED WITH RESPECT TO" THE ACCRUED AND SEIZED SALARIES,
WITHIN THE MEANING OF SEC. 6332, AND, THEREFORE, IS NOT PERSONALLY
LIABLE FOR REFUSING TO SURRENDER THEM TO THE GOVERNMENT.  WE GRANTED
THE WRIT TO DETERMINE THOSE QUESTIONS.  358 U.S. 809. 

NOTHING IN THE CONSTITUTION REQUIRES THAT THE SALARIES OF STATE
EMPLOYEES BE TREATED ANY DIFFERENTLY, FOR FEDERAL TAX PURPOSES, THAN
THE SALARIES OF OTHERS, HELVERING V. GERHARDT, 304 U.S. 405; GRAVES V.
NEW YORK EX REL. O'KEEFE, 306 U.S. 466, AND IT IS QUITE CLEAR,
GENERALLY, THAT ACCRUED SALARIES ARE PROPERTY AND RIGHTS TO PROPERTY
SUBJECT TO LEVY.  (FN4)  IN PLAIN TERMS, SEC. 6331 PROVIDES FOR THE
COLLECTION OF ASSESSED AND UNPAID TAXES "BY LEVY UPON ALL PROPERTY AND
RIGHTS TO PROPERTY" BELONGING TO A DELINQUENT TAXPAYER.  (FN5) PURSUANT
TO THAT STATUTE A REGULATION WAS PROMULGATED EXPRESSLY INTERPRETING AND
DECLARING SEC. 6331 TO AUTHORIZE LEVY ON THE ACCRUED SALARIES OF
EMPLOYEES OF A STATE TO ENFORCE COLLECTION OF ANY FEDERAL TAX.  (FN6) 

ALTHOUGH NOT DISPUTING THESE PRINCIPLES, PETITIONER ADVANCES TWO
ARGUMENTS IN SUPPORT OF HIS CLAIM THAT THE STATUTES DO NOT AUTHORIZE A
LEVY ON THE ACCRUED SALARIES OF EMPLOYEES OF A STATE.  FIRST, HE
CONTENDS THAT A STATE IS NOT A "PERSON" WITHIN THE MEANING OF SEC.
6332, AND, SECOND, HE ARGUES THAT CONGRESS, BY SPECIFICALLY AUTHORIZING
IN SEC. 6331 A LEVY "UPON THE ACCRUED SALARY OR WAGES OF ANY OFFICER,
EMPLOYEE, OR ELECTED OFFICIAL, OF THE UNITED STATES, THE DISTRICT OF
COLUMBIA, OR ANY AGENCY OR INSTRUMENTALITY" THEREOF, BUT NOT SIMILARLY
SPECIFICALLY AUTHORIZING LEVY UPON THE ACCRUED SALARIES OR WAGES OF
EMPLOYEES OF A STATE, EVINCED ITS INTENTION TO EXCLUDE THE LATTER FROM
SUCH LEVIES. 

THOUGH THE DEFINITION OF "PERSON" IN SEC. 6332 DOES NOT MENTION
STATES OR ANY SOVEREIGN OR POLITICAL ENTITY OR THEIR OFFICERS AMONG
THOSE IT "INCLUDES" (NOTE 3), IT IS EQUALLY CLEAR THAT IT DOES NOT
EXCLUDE THEM.  THIS IS MADE CERTAIN BY THE PROVISIONS OF SEC. 7701(B)
OF THE 1954 INTERNAL REVENUE CODE THAT "THE TERMS 'INCLUDES' AND
'INCLUDING' WHEN USED IN A DEFINITION CONTAINED IN THIS TITLE SHALL NOT
BE DEEMED TO EXCLUDE OTHER THINGS OTHERWISE WITHIN THE MEANING OF THE
TERM DEFINED."   26 U.S.C. (SUPP. V) SEC. 7701(B).  WHETHER THE TERM
"PERSON" WHEN USED IN A FEDERAL STATUTE INCLUDES A STATE CANNOT BE
ABSTRACTLY DECLARED, BUT DEPENDS UPON ITS LEGISLATIVE ENVIRONMENT, OHIO
V. HELVERING, 292 U.S. 360, 370; GEORGIA V. EVANS, 316 U.S. 159, 161. 
IT IS CLEAR THAT SEC. 6332 IS STATED IN ALL-INCLUSIVE TERMS OF GENERAL
APPLICATION.  "IN INTERPRETING FEDERAL REVENUE MEASURES EXPRESSED IN
TERMS OF GENERAL APPLICATION, THIS COURT HAS ORDINARILY FOUND THEM
OPERATIVE IN THE CASE OF STATE ACTIVITIES EVEN THOUGH STATES WERE NOT
EXPRESSLY INDICATED AS SUBJECTS OF TAX."  WILMETTE PARK DIST. V.
CAMPBELL, 338 U.S. 411, 416, AND CASES CITED.  WE THINK THAT THE
SUBJECT MATTER, THE CONTEXT, THE LEGISLATIVE HISTORY, AND THE EXECUTIVE
INTERPRETATION, I.E., THE LEGISLATIVE ENVIRONMENT, OF SEC. 6332 MAKE IT
PLAIN THAT CONGRESS INTENDED TO AND DID INCLUDE STATES WITHIN THE TERM
"PERSON" AS USED IN SEC. 6332. 

NOR IS THERE MERIT IN PETITIONER'S CONTENTION THAT CONGRESS, BY
SPECIFICALLY PROVIDING IN SEC. 6331 FOR LEVY UPON THE ACCRUED SALARIES
OF FEDERAL EMPLOYEES, BUT NOT MENTIONING STATE EMPLOYEES, EVINCED AN
INTENTION TO EXCLUDE THE LATTER FROM LEVY.  THE EXPLANATION OF THAT
ACTION BY CONGRESS APPEARS QUITE CLEARLY TO BE THAT THIS COURT HAD HELD
IN SMITH V. JACKSON, 246 U.S. 388, THAT A FEDERAL DISBURSING OFFICER
MIGHT NOT, IN THE ABSENCE OF EXPRESS CONGRESSIONAL AUTHORIZATION, SET
OFF AN INDEBTEDNESS OF A FEDERAL EMPLOYEE TO THE GOVERNMENT AGAINST THE
EMPLOYEE'S SALARY, AND, PURSUANT TO THAT OPINION, THE COMPTROLLER
GENERAL RULED THAT AN "ADMINISTRATIVE OFFICIAL SERVED WITH NOTICES OF
LEVY WOULD BE WITHOUT AUTHORITY TO WITHHOLD ANY PORTION OF THE CURRENT
SALARY OF SUCH EMPLOYEE IN SATISFACTION OF NOTICES OF LEVY AND
DISTRAINT."  26 COMP. GEN. 907, 912 (1947).  IT IS EVIDENT THAT SEC.
6331 WAS ENACTED TO OVERCOME THAT DIFFICULTY AND TO SUBJECT THE
SALARIES OF FEDERAL EMPLOYEES TO THE SAME COLLECTION PROCEDURES AS ARE
AVAILABLE AGAINST ALL OTHER TAXPAYERS, INCLUDING EMPLOYEES OF A STATE. 

ACCORDINGLY WE HOLD THAT SECS. 6331 AND 6332 AUTHORIZE LEVY UPON THE
ACCRUED SALARIES OF STATE EMPLOYEES FOR THE COLLECTION OF ANY FEDERAL
TAX. 

THIS BRINGS US TO PETITIONER'S CONTENTION THAT EVEN IF THE SALARIES
OF STATE EMPLOYEES ARE SUBJECT TO LEVY, HE IS NOT PERSONALLY LIABLE TO
THE GOVERNMENT FOR REFUSING TO HONOR ITS LEVIES BECAUSE, CONTRARY TO
THE HOLDING OF THE COURTS BELOW, HE WAS NOT A PERSON "OBLIGATED WITH
RESPECT TO" THE SALARIES COVERED THEREBY.  CONGRESS DID NOT DEFINE THE
QUESTIONED PHRASE, NOR DO WE FEEL CALLED UPON HERE TO DELIMIT ITS
SCOPE, FOR WE THINK IT INCLUDES, AT LEAST, A PERSON WHO HAS THE SOLE
POWER TO CONTROL DISPOSITION OF THE FUND, AND WE ALSO THINK THAT, UNDER
THE WEST VIRGINIA LAW, PETITIONER BOTH HAD AND EXERCISED THAT POWER. 
BY A WEST VIRGINIA STATUTE, 1 W.VA. CODE, 1955, SEC. 1031(1), HE WAS
EMPOWERED AND OBLIGATED TO DEDUCT AND WITHHOLD FROM THE SALARIES OF
STATE EMPLOYEES SUMS "TO PAY TAXES AS MAY BE REQUIRED BY AN ACT OR ACTS
OF THE CONGRESS OF THE UNITED STATES OF AMERICA"; AND, SIMILARLY,
ANOTHER WEST VIRGINIA STATUTE, 2 W.VA. CODE, 1955, SEC. 3834(18),
AUTHORIZES GARNISHMENTS TO BE SERVED UPON HIM TO SEQUESTER THE SALARIES
OF STATE EMPLOYEES.  HE ALONE HAS THE OBLIGATION AND POWER TO ISSUE
WARRANTS FOR THE PAYMENT OF SALARIES, AND STATE EMPLOYEES ENTITLED TO
PAYMENT FOR SERVICES MAY ENFORCE THEIR RIGHTS BY MANDAMUS AGAINST HIM. 
STATE EX REL. BOARD OF GOVERNORS OF WEST VIRGINIA UNIVERSITY V. SIMS,
133 W.VA. 239, 55 S.E.2D 505; STATE EX REL. BOARD OF GOVERNORS OF WEST
VIRGINIA UNIVERSITY V. SIMS, 136 W.VA. 789, 68 S.E.2D 489; STATE EX
REL. BOARD OF GOVENORS OF WEST VIRGINIA UNIVERSITY V. SIMS, 140 W.VA.
64, 82 S.E.2D 321.  BY AND TO THE EXTENT OF THESE WEST VIRGINIA LAWS
PETITIONER WAS OBLIGATED AND EMPOWERED IN RESPECT TO THE SEQUESTERED
SALARIES.  THESE LAWS EMPOWERED HIM COMPLETELY TO CONTROL THE
DISPOSITION OF THAT FUND.  HE EXERCISED THAT POWER BY REFUSING TO HONOR
THE GOVERNMENT'S VALID LEVIES AND TO SURRENDER THE FUND TO THE
GOVERNMENT.  INSTEAD HE SURRENDERED THE FUND TO THE TAXPAYERS.  THAT
ACTION BY PETITIONER RESULTED IN DEFEAT OF THE GOVERNMENT'S VALID
LEVIES. 

UPON THESE PRINCIPLES FOUR JUDGES WHO ARE CONSTANTLY REQUIRED TO PASS
UPON WEST VIRGINIA LAWS HAVE HELD THAT, UNDER THE LAW OF THE STATE,
PETITIONER IS A PERSON WHO WAS OBLIGATED WITH RESPECT TO THE SALARIES
COVERED BY THE GOVERNMENT'S LEVIES.  THEIR CONCLUSION APPEARS TO BE
FOUNDED ON REASON AND AUTHORITY, AND UNDER FAMILIAR PRINCIPLES WILL BE
ACCEPTED HERE.  PROPPER V. CLARK, 337 U.S. 472, 486-487.  BEING A
PERSON WHO, UNDER THE LAW OF WEST VIRGINIA, WAS OBLIGATED WITH RESPECT
TO THE SALARIES COVERED BY THE GOVERNMENT'S LEVIES, PETITIONER IS, BY
SEC. 6332(B), MADE PERSONALLY LIABLE TO THE GOVERNMENT IN A SUM EQUAL
TO THE AMOUNT, NOT EXCEEDING THE DELINQUENT TAXES, WHICH HE REFUSED TO
SURRENDER TO THE GOVERNMENT BUT SURRENDERED INSTEAD TO THE TAXPAYERS IN
DEFEAT OF THE GOVERNMENT'S LEVIES.  THE JUDGMENT OF THE COURT OF
APPEALS WAS THEREFORE CORRECT AND MUST BE AFFIRMED. 

FN1  26 U.S.C. (SUPP. V) SEC. 6331, IN PERTINENT PART, PROVIDES: 

"(A)  AUTHORITY OF SECRETARY OR DELEGATE.  - IF ANY PERSON LIABLE TO
PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE SAME WITHIN 10 DAYS AFTER
NOTICE AND DEMAND, IT SHALL BE LAWFUL FOR THE SECRETARY OR HIS DELEGATE
TO COLLECT SUCH TAX  ...  BY LEVY UPON ALL PROPERTY AND RIGHTS TO
PROPERTY (EXCEPT SUCH PROPERTY AS IS EXEMPT UNDER SECTION 6334)
BELONGING TO SUCH PERSON OR ON WHICH THERE IS A LIEN PROVIDED IN THIS
CHAPTER FOR THE PAYMENT OF SUCH TAX.  LEVY MAY BE MADE UPON THE ACCRUED
SALARY OR WAGES OF ANY OFFICER, EMPLOYEE, OR ELECTED OFFICIAL OF THE
UNITED STATES, THE DISTRICT OF COLUMBIA, OR ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, BY
SERVING A NOTICE OF LEVY ON THE EMPLOYER  ...  . 

"(B)  SEIZURE AND SALE OF PROPERTY.  - THE TERM 'LEVY' AS USED IN
THIS TITLE INCLUDES THE POWER OF DISTRAINT AND SEIZURE BY ANY MEANS. 
IN ANY CASE IN WHICH THE SECRETARY OR HIS DELEGATE MAY LEVY UPON
PROPERTY OR RIGHTS TO PROPERTY, HE MAY SEIZE AND SELL SUCH PROPERTY OR
RIGHTS TO PROPERTY (WHETHER REAL OR PERSONAL, TANGIBLE OR
INTANGIBLE)." 

FN2  THE ASSESSMENT AGAINST EACH OF THE TAXPAYERS SUBSTANTIALLY
EXCEEDED IN AMOUNT THE ACCRUED SALARY OWING TO EACH AT THE TIME OF THE
LEVIES. 

FN3  26 U.S.C. (SUPP. V) SEC. 6332 PROVIDES: 

"(A)  REQUIREMENT.  - ANY PERSON IN POSSESSION OF (OR OBLIGATED WITH
RESPECT TO) PROPERTY OR RIGHTS TO PROPERTY SUBJECT TO LEVY UPON WHICH A
LEVY HAS BEEN MADE SHALL, UPON DEMAND OF THE SECRETARY OR HIS DELEGATE,
SURRENDER SUCH PROPERTY OR RIGHTS (OR DISCHARGE SUCH OBLIGATION) TO THE
SECRETARY OR HIS DELEGATE, EXCEPT SUCH PART OF THE PROPERTY OR RIGHTS
AS IS, AT THE TIME OF SUCH DEMAND, SUBJECT TO AN ATTACHMENT OR
EXECUTION UNDER ANY JUDICIAL PROCESS. 

"(B)  PENALTY FOR VIOLATION.  - ANY PERSON WHO FAILS OR REFUSES TO
SURRENDER AS REQUIRED BY SUBSECTION (A) ANY PROPERTY OR RIGHTS TO
PROPERTY, SUBJECT TO LEVY, UPON DEMAND BY THE SECRETARY OR HIS
DELEGATE, SHALL BE LIABLE IN HIS OWN PERSON AND ESTATE TO THE UNITED
STATES IN A SUM EQUAL TO THE VALUE OF THE PROPERTY OR RIGHTS NOT SO
SURRENDERED, BUT NOT EXCEEDING THE AMOUNT OF THE TAXES FOR THE
COLLECTION OF WHICH SUCH LEVY HAS BEEN MADE, TOGETHER WITH COSTS AND
INTEREST ON SUCH SUM AT THE RATE OF 6 PERCENT PER ANNUM FOR THE DATE OF
SUCH LEVY. 

"(C)  PERSON DEFINED.  - THE TERM 'PERSON,' AS USED IN SUBSECTION
(A), INCLUDES AN OFFICER OR EMPLOYEE OF A CORPORATION OR A MEMBER OR
EMPLOYEE OF A PARTNERSHIP, WHO AS SUCH OFFICER, EMPLOYEE, OR MEMBER IS
UNDER A DUTY TO SURRENDER THE PROPERTY OR RIGHTS TO PROPERTY, OR TO
DISCHARGE THE OBLIGATION." 

FN4  GLASS CITY BANK V. UNITED STATES, 326 U.S. 265, 268; UNITED
STATES V. LONG ISLAND DRUG CO., 115 F.2D 983, 986 (C.A.2D CIR.); 9
MERTENS, LAW OF FEDERAL INCOME TAXATION (REV.), SEC. 49.205. 

FN5  THE ONLY PROPERTY EXEMPT FROM LEVY IS THAT LISTED IN SEC.
6334(A) OF THE 1954 INTERNAL REVENUE CODE, 26 U.S.C. (SUPP. V) SEC.
6334(A), CONSISTING OF CERTAIN PERSONAL ARTICLES AND PROVISIONS.  IT
DOES NOT EXEMPT SALARIES OR WAGES. 

FN6  SECTION 301.6331-1(A)(4)(II) OF TREASURY REGULATIONS RELATING TO
SEIZURE OF PROPERTY FOR COLLECTION OF TAXES (1954), 26 CFR (REVISED AS
OF JANUARY 1, 1958) SEC. 301.6331-1(A)(4)(II), IN PERTINENT PART,
PROVIDES: 

"STATE AND MUNICIPAL EMPLOYEES.  ACCRUED SALARIES, WAGES, OR OTHER
COMPENSATION OF ANY OFFICER, EMPLOYEE, OR ELECTED OR APPOINTED OFFICIAL
OF A STATE OR TERRITORY, OR OF ANY AGENCY, INSTRUMENTALITY, OR
POLITICAL SUBDIVISION THEREOF, ARE ALSO SUBJECT TO LEVY TO ENFORCE
COLLECTION OF ANY FEDERAL TAX." 

THIS REGULATION BECAME EFFECTIVE ON JANUARY 1, 1955, 1955-1 CUM.
BULL., P. 195, SEC. 7851, AND THEREFORE PRIOR TO THE SERVICE ON
PETITIONER OF THE GOVERNMENT'S NOTICES OF LEVY IN OCTOBER 1955. 
..END :





SPEVACK V. STRAUSS 359 U.S. 115 


NO. 339.  ARGUED MARCH 5, 1959 - DECIDED MARCH 23, 1959 - REPORTED
BELOW:  103 U.S. APP. D.C. 204, 257 F.2D 208. 


IT APPEARING UPON ORAL ARGUMENT THAT IN THE NORMAL COURSE THE FEE FOR
PETITIONER'S UNITED STATES PATENT MUST BE PAID BY MAY 25, 1959, AND
THAT THE PATENT WILL ISSUE SHORTLY AFTER PAYMENT OF THE FEE, THE CASE
IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS. 

SPEVACK V. STRAUSS, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

UPON ORAL ARGUMENT, IT APPEARED THAT IN THE NORMAL COURSE THE FEE FOR
PETITIONER'S UNITED STATES PATENT MUST BE PAID BY MAY 25, 1959, AND
THAT THE PATENT WILL ISSUE SHORTLY AFTER PAYMENT OF THE FEE. 
ACCORDINGLY, THE CASE IS REMANDED TO THE DISTRICT COURT AND THAT COURT
IS INSTRUCTED:  (1) IF PETITIONER HAS BY MAY 25, 1959, PAID THE PATENT
FEE FOR HIS PATENT, AND HAS NOT REQUESTED A SUSPENSION OR DELAY IN THE
ISSUANCE THEREOF, OR HAS WITHDRAWN ANY SUCH REQUEST THERETOFORE MADE,
TO CONTINUE THE CASE AND THE RESTRAINING ORDERS ENTERED HEREIN BY THE
CHIEF JUSTICE UNTIL THE PATENT ISSUES, AND THEN TO DISMISS THE
COMPLAINT AS MOOT; (2) OTHERWISE, ON MAY 25, 1959, TO DISMISS THE
COMPAINT ON THE GROUND THAT, APART FROM THE MERITS OF THE CONTROVERSY,
THE GRANT OF THE EXTRAORDINARY EQUITABLE RELIEF OF AN INJUNCTION AT
THAT STAGE OF THE PROCEEDINGS WOULD NOT BE WARRANTED.  UPON THE
FULFILLMENT OF EITHER OF THESE CONDITIONS, THE PROCEEDINGS HERETOFORE
HAD IN THE TWO LOWER COURTS ARE VACATED. 
..END :



















PAGE V. UNITED STATES 359 U.S. 116 


NO. 155, MISC.  DECIDED MARCH 23, 1959. 


CERTIORARI GRANTED; JUDGMENT VACATED; CASE REMANDED FOR FURTHER
CONSIDERATION. 

PAGE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR CERTIORARI ARE GRANTED.  UPON CONSIDERATION OF THE ENTIRE RECORD
AND IN VIEW OF THE SUGGESTIONS OF THE SOLICITOR GENERAL IN HIS
MEMORANDUM, THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT IS VACATED AND THE CASE IS REMANDED TO THAT COURT FOR
FURTHER CONSIDERATION, INCLUDING RECONSIDERATION OF PETITIONER'S RIGHT
TO APPEAL IN FORMA PAUPERIS FROM HIS 1954 CONVICTION ON THE BASIS OF A
TRANSCRIPT OF THE RECORD AT THE TRIAL. 
..END :







JOSEPH V. INDIANA 359 U.S. 117 


NO. 8.  ARGUED JANUARY 19, 1959 - DECIDED MARCH 23, 1959 - WRIT OF
CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED - REPORTED BELOW:  236
IND. 529, 141 N.E.2D 109. 


JOSEPH ET AL. V. INDIANA. 

CERTIORARI TO THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 
..END :

















WOODY V. UNITED STATES 359 U.S. 118 


NO. 135.  ARGUED JANUARY 14, 1959 - DECIDED MARCH 23, 1959 - JUDGMENT
AFFIRMED BY AN EQUALLY DIVIDED COURT - REPORTED BELOW: 258 F.2D 535. 


WOODY V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














CITY OF LOS ANGELES V. PUBLIC UTILITIES COMMISSION OF CALIFORNIA 359
U.S. 119 


NO. 656.  DECIDED MARCH 23, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


CITY OF LOS ANGELES ET AL. V. PUBLIC UTILITIES COMMISSION OF CALIFORNIA
ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION OF THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY ET AL. TO
BE ADDED AS PARTIES APPELLEE IS GRANTED.  THE MOTIONS TO DISMISS ARE
GRANTED AND THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :










HANDFORD V. UNITED STATES 359 U.S. 120 


NO. 578.  DECIDED MARCH 23, 1959 - REPORTED BELOW:  260 F.2D 890. 


CERTIORARI GRANTED; JUDGMENT REVERSED UPON CONSIDERATION OF THE ENTIRE
RECORD AND THE CONFESSION OF ERROR BY THE SOLICITOR GENERAL. 

HANDFORD V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  UPON CONSIDERATION
OF THE ENTIRE RECORD AND THE CONFESSION OF ERROR BY THE SOLICITOR
GENERAL, THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT IS REVERSED. 
..END :











CEPHAS V. WEST VIRGINIA 359 U.S. 120 


NO. 336, MISC.  DECIDED MARCH 23, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CEPHAS V. WEST VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR CERTIORARI, CERTIORARI IS DENIED. 
..END :

















UNITED STATES V. EMBASSY RESTAURANT 359 U.S. 29 


NO. 174.  ARGUED JANUARY 22, 1959 - DECIDED MARCH 9, 1959 - 254 F.2D
475, REVERSED. 


CONTRIBUTIONS DUE TO BE PAID BY A BANKRUPT EMPLOYER TO THE TRUSTEES OF
A UNION WELFARE FUND UNDER A COLLECTIVE BARGAINING AGREEMENT HELD NOT
ENTITLED TO PRIORITY IN PAYMENT UNDER SEC. 64(A)(2) OF THE BANKRUPTCY
ACT AS "WAGES  ...  DUE TO WORKMEN."  PP. 29-35. 

UNITED STATES V. EMBASSY RESTAURANT, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE SOLE ISSUE INVOLVED HERE IS WHETHER CONTRIBUTIONS BY AN EMPLOYER
TO A UNION WELFARE FUND WHICH ARE REQUIRED BY A COLLECTIVE BARGAINING
AGREEMENT ARE ENTITLED, IN BANKRUPTCY, TO PRIORITY AS BEING "WAGES  ...
DUE TO WORKMEN" UNDER SEC. 64(A)(2) OF THE BANKRUPTCY ACT, AS
AMENDED.  (FN1)  BOTH THE TRIAL COURT, 154 F. SUPP. 141, AND THE COURT
OF APPEALS, 254 F.2D 475, HELD THAT SUCH CONTRIBUTIONS ENJOYED
PRIORITY.  THIS RESULTED IN A CONFLICT WITH THE COURT OF APPEALS FOR
THE SECOND CIRCUIT, LOCAL 140 SECURITY FUND V. HACK, 242 F.2D 375, IN
VIEW OF WHICH WE GRANTED CERTIORARI.  358 U.S. 811. 

THE FACTS ARE UNDISPUTED.  EMBASSY RESTAURANT, INC., WAS BOUND IN
COLLECTIVE BARGAINING AGREEMENTS WITH LOCAL UNIONS 111 AND 301.  THE
AGREEMENTS RELATED TO HOURS, WAGES AND OTHER CONDITIONS OF EMPLOYMENT. 
UNDER THESE AGREEMENTS EMBASSY WAS OBLIGATED TO CONTRIBUTE TO THE
TRUSTEES OF THE WELFARE FUNDS OF LOCALS 111 AND 301 $8 PER MONTH PER
FULL-TIME EMPLOYEE.  THE WELFARE PLANS WERE ORGANIZED TO MAINTAIN "LIFE
INSURANCE, WEEKLY SICK BENEFITS, HOSPITAL AND SURGICAL BENEFITS" AND
OTHER ADVANTAGES FOR MEMBERS OF THE LOCALS.  TRUSTEES ADMINISTERED EACH
PLAN UNDER A FORMAL TRUST AGREEMENT AND WERE AUTHORIZED TO FORMULATE
AND ESTABLISH THE CONDITIONS OF ELIGIBILITY FOR BENEFITS, CONTROL ALL
THE FUNDS RECEIVED, COLLECT ALL CONTRIBUTIONS, AND IN THEIR "SOLE
DISCRETION" TO HANDLE ALL LEGAL PROCEEDINGS INCIDENT THERETO.  TITLE TO
ALL OF THE FUNDS, PROPERTY AND INCOME WAS PLACED IN THE TRUSTEES
EXCLUSIVELY AND NO EMPLOYEE OR ANYONE CLAIMING UNDER HIM HAD ANY RIGHT
WHATSOEVER IN THE PLAN OR ANY PART THEREOF.  IN THE BANKRUPTCY
PROCEEDING THE TRUSTEES FILED PROOFS OF A CLAIM FOR UNPAID
CONTRIBUTIONS DUE BY EMBASSY, AND ASSERTED A SECOND PRIORITY FOR ALL
AMOUNTS THAT HAD ACCRUED DURING THE THREE MONTHS IMMEDIATELY PRECEDING
THE BANKRUPTCY.  THIS PRIORITY WAS DISALLOWED BY THE REFEREE BUT, ON
REVIEW, IT WAS GRANTED BY BOTH THE TRIAL COURT AND THE COURT OF
APPEALS.  WE HAVE CONCLUDED THAT SUCH CONTRIBUTIONS ARE NOT ENTITLED TO
SUCH PRIORITY IN PAYMENT. 

AT THE OUTSET WE POINT OUT THAT "THE BROAD PURPOSE OF THE BANKRUPTCY
ACT IS TO BRING ABOUT AN EQUITABLE DISTRIBUTION OF THE BANKRUPT'S
ESTATE  ...  ."  KOTHE V. R.C. TAYLOR TRUST, 280 U.S. 224, 227, AND
THAT "IF ONE CLAIMANT IS TO BE PREFERRED OVER OTHERS, THE PURPOSE
SHOULD BE CLEAR FROM THE STATUTE."  NATHANSON V. LABOR BOARD, 344 U.S.
25, 29.  (FN2)  MOREOVER, IF THE CONTRIBUTIONS ARE PLACED IN THE WAGE
PRIORITY CLASS, THEY WILL LIKEWISE BE RENDERED NONDISCHARGEABLE UNDER
SEC. 17 OF THE ACT, (FN3) RESULTING IN THEIR REMAINING OUTSTANDING
DEBTS OF THE BANKRUPT IF THE ASSETS OF THE ESTATE ARE INSUFFICIENT TO
DISCHARGE THEM FOR THREE MONTHS PRIOR TO THE BANKRUPTCY. 

THE TRUSTEES ATTEMPT TO BRING CONTRIBUTIONS WITHIN THIS PREFERRED
CLASS BY CLAIMING THEM TO BE "WAGES  ...  DUE TO WORKMEN."  THIS CLASS
OF CLAIMS HAS BEEN GIVEN A PREFERRED POSITION IN THE BANKRUPTCY ACT FOR
OVER 100 YEARS, (FN4) LONG BEFORE WELFARE FUNDS PLAYED ANY PART IN
LABOR NEGOTIATIONS.  TRUE, THE CONGRESS HAS AMENDED THE ACT, BUT SUCH
AMENDMENTS HAVE BEEN FEW AND GUARDED ONES, SUCH AS RAISING THE CEILING
ON THE AMOUNT PERMITTED, (FN5) SHIFTING THE RELATIVE PRIORITIES (FN6)
AND ENLARGING THE CLASS TO SALESMEN, CLERKS, ETC.  (FN7)  IF IT HAD
WISHED TO INCLUDE CONTRIBUTIONS, CONGRESS COULD EASILY HAVE INCLUDED
THEM AT ANY OF THESE TIMES.  ON THE CONTRARY, HOWEVER, THE PURPOSE OF
CONGRESS HAS CONSTANTLY BEEN TO ENABLE EMPLOYEES DISPLACED BY
BANKRUPTCY TO SECURE, WITH SOME PROMPTNESS, THE MONEY DIRECTLY DUE TO
THEM IN BACK WAGES, AND THUS TO ALLEVIATE IN SOME DEGREE THE HARDSHIP
THAT UNEMPLOYMENT USUALLY BRINGS TO WORKERS AND THEIR FAMILIES. 
EVIDENCE OF THIS PURPOSE IS FOUND IN A 1934 AMENDMENT TO THE BANKRUPTCY
ACT.  (FN8)  IN THAT YEAR, CONGRESS AMENDED SEC. 63 TO ALLOW WORKMEN'S
COMPENSATION CLAIMS AS PROVABLE DEBTS.  IN AWARDING THEM PRIORITY,
HOWEVER, CONGRESS RELEGATED THESE CLAIMS TO A SEVENTH PRIORITY IN
CONTRAST TO THE THEN FOURTH PRIORITY OF WAGES.  (FN9)  ONLY FOUR YEARS
LATER, CONGRESS ABOLISHED THE PRIORITY STATUS OF THESE COMPENSATION
CLAIMS, THOUGH IT CONTINUED THEM AS PROVABLE DEBTS UNDER SEC. 63, 11
U.S.C. SEC. 103(A)(6).  IT IS THEREFORE EVIDENT THAT NOT ALL TYPES OF
OBLIGATIONS DUE EMPLOYEES FROM THEIR EMPLOYERS ARE REGARDED BY CONGRESS
AS BEING WITHIN THE CONCEPT OF WAGES, EVEN THOUGH HAVING SOME RELATION
TO EMPLOYMENT.  MOREOVER, SUCH ACTION INDICATED THE CARE CONGRESS HAS
EXERCISED IN REGARD TO THE PROTECTION IT HAS GRANTED "WAGES  ...  DUE
TO WORKMEN." 

LET US EXAMINE THE NATURE OF THESE CONTRIBUTIONS.  THEY ARE FLAT SUMS
OF $8 PER MONTH FOR EACH WORKMAN.  THE AMOUNT IS WITHOUT RELATION TO
HIS HOURS, WAGES OR PRODUCTIVITY.  IT IS DUE THE TRUSTEES, NOT THE
WORKMAN, AND THE LATTER HAS NO LEGAL INTEREST IN IT WHATSOEVER.  A
WORKMAN CANNOT EVEN COMPEL PAYMENT BY A DEFAULTING EMPLOYER.  MOREOVER
IT DOES NOT APPEAR THAT THE PARTIES TO THE COLLECTIVE AGREEMENT
CONSIDERED THESE WELFARE PAYMENTS AS WAGES.  THE CONTRACT HERE REFERS
TO THEM AS "CONTRIBUTIONS."  FINALLY, EMBASSY'S OBLIGATION IS TO
CONTRIBUTE SUMS TO THE TRUSTEES, NOT TO ITS WORKMEN; IT IS ENFORCEABLE
ONLY BY THE TRUSTEES WHO ENJOY NOT ONLY THE SOLE TITLE, BUT THE
EXCLUSIVE MANAGEMENT OF THE FUNDS. 

IT IS CONTENDED, HOWEVER, THAT SINCE "UNIONS BARGAIN FOR THESE
CONTRIBUTIONS AS THOUGH THEY WERE WAGES" AND INDUSTRY LIKEWISE
CONSIDERS THEM "AS AN INTEGRAL PART OF THE WAGE PACKAGE," THEY MUST IN
LAW BE CONSIDERED "WAGES."  THIS APPROACH OVERLOOKS THE FACT THAT WE
DEAL WITH A STATUTE, NOT BUSINESS PRACTICE.  NOR DO WE BELIEVE THAT
HOLDINGS THAT VARIOUS FRINGE BENEFITS ARE WAGES UNDER THE N.L.R.A.
(FN10) OR THE SOCIAL SECURITY ACT (FN11) ARE APPOSITE.  WE CONSTRUE THE
PRIORITY SECTION OF THE BANKRUPTCY ACT, NOT THOSE STATUTES.  IT
SPECIFICALLY FIXES THE RELATIVE PRIORITY OF CLAIMS OF CLASSES OF
CREDITORS.  HERE THAT CLASS IS "WAGES  ...  DUE TO WORKMEN." 

THE CONTRIBUTIONS HERE ARE NOT "DUE TO WORKMEN," NOR HAVE THEY THE
CUSTOMARY ATTRIBUTES OF WAGES.  THUS, THEY CANNOT BE TREATED AS BEING
WITHIN THE CLEAR, UNEQUIVOCAL LANGUAGE OF "WAGES  ...  DUE TO WORKMEN"
UNLESS IT IS CLEAR THAT THEY SATISFY THE PURPOSE FOR WHICH CONGRESS
ESTABLISHED THE PRIORITY.  THAT PURPOSE WAS TO PROVIDE THE WORKMAN A
"PROTECTIVE CUSHION" AGAINST THE ECONOMIC DISPLACEMENT CAUSED BY HIS
EMPLOYER'S BANKRUPTCY.  (FN12)  THESE PAYMENTS, OWED AS THEY ARE TO THE
TRUSTEE RATHER THAN TO THE WORKMAN, OFFER NO SUPPORT TO THE WORKMAN IN
PERIODS OF FINANCIAL DISTRESS.  FURTHERMORE, IF THE CLAIMS OF THE
TRUSTEES ARE TO BE TREATED ON A PAR WITH WAGES, IN A CASE WHERE THE
EMPLOYER'S ASSETS ARE INSUFFICIENT TO PAY ALL IN THE SECOND PRIORITY,
THE WORKMAN WILL HAVE TO SHARE WITH THE WELFARE PLAN, THUS REDUCING HIS
OWN RECOVERY. 

RESPONDENTS ARGUE THAT PRECEDENT ALLOWS THE PRIORITY TO BE ASSERTED
BY ONE OTHER THAN THE WORKMAN HIMSELF.  WE ARE CITED TO SHROPSHIRE,
WOODLIFF & CO. V. BUSH, 204 U.S. 186, AND UNITED STATES V. CARTER, 353
U.S. 210.  IN SHROPSHIRE, WAGES DUE A WORKMAN HAD BEEN ASSIGNED BY HIM,
AND THE ASSIGNEE WAS SEEKING THE WAGE PRIORITY ENJOYED BY HIS
ASSIGNOR.  IN ALLOWING THE CLAIM TO HAVE PRIORITY, THE COURT SAID: 

"WHEN ONE HAS INCURRED A DEBT FOR WAGES DUE TO WORKMEN,  ...  THAT
DEBT  ...  IS ENTITLED TO PRIORITY  ...  . 

     *         *         *         *         * 

"THE CHARACTER OF THE DEBTS WAS FIXED WHEN THEY WERE INCURRED, AND
COULD NOT BE CHANGED BY ASSIGNMENT," 204 U.S., AT 189  ...  . 

AND ALSO, THAT "THE PRIORITY IS ATTACHED TO THE DEBT AND NOT TO THE
PERSON OF THE CREDITOR  ... ."  IBID.  APPLICATION OF THESE PRINCIPLES
TO THE FACTS HERE HELPS RESPONDENTS NOT AT ALL; THE OBLIGATION TO MAKE
CONTRIBUTIONS, WHEN INCURRED, WAS TO THE TRUSTEES, NOT TO THE WORKMEN. 
THE DEBT WAS NEVER OWED THE WORKMEN.  FURTHERMORE, ASSIGNABILITY OF
WAGE CLAIMS AS IN SHROPSHIRE, MAY BENEFIT THE BANKRUPT'S EMPLOYEES, WHO
ARE THUS ENABLED TO OBTAIN THEIR MONEY SOONER THAN THEY MIGHT BY
WAITING OUT THE BANKRUPTCY PROCEDURE. 

NOR DOES THE CARTER CASE, SUPRA, SUPPORT THE GRANTING OF A PRIORITY
TO THESE CONTRIBUTIONS.  THERE WE DEALT WITH THE MILLER ACT, (FN13)
WHICH GRANTED TO EVERY PERSON FURNISHING LABOR OR MATERIAL THE RIGHT TO
SUE ON THE CONTRACTOR'S PAYMENT BOND "FOR THE SUM OR SUMS JUSTLY DUE
HIM."  THE CONTRACTOR DEFAULTED AND THE TRUSTEES OF A WELFARE FUND
SIMILAR TO THAT INVOLVED HERE SUED ON THE BOND FOR RECOVERY OF
CONTRIBUTIONS "JUSTLY DUE."  OUR OPINION DID NOT HOLD THAT
CONTRIBUTIONS WERE PART OF "WAGES  ...  DUE TO WORKMEN."  IN FACT WE
POINTED OUT THAT THE TRUST AGREEMENT PROVIDED THAT THE CONTRIBUTIONS
"SHALL NOT CONSTITUTE OR BE DEEMED TO BE WAGES."  THE BASIS OF THE
OPINION WAS THAT THE MILLER ACT "DOES NOT LIMIT RECOVERY ON THE
STATUTORY BOND TO 'WAGES,'" ID., AT 217.  THE ACT HAVING THE BROAD
PROTECTIVE PURPOSES OF SECURING ALL CLAIMS THAT ARE "JUSTLY DUE," WE
HELD THAT THE TRUSTEES MIGHT RECOVER.  IN SHORT, THOUGH THE
CONTRIBUTIONS WERE NOT WAGES, THEY WERE "JUSTLY DUE" AS A CLAIM WITHIN
"THE PURPOSES OF THE MILLER ACT."  UNDER THE BANKRUPTCY ACT, HOWEVER,
NOT ALL CLAIMS "JUSTLY DUE" HAVE PRIORITY.  THEY MUST BE WITHIN A
CLASS, SUCH AS "WAGES  ...  DUE TO WORKMEN."  THE CLAIMS HERE ARE NOT. 
IF THIS CLASS IS TO BE SO ENLARGED, IT MUST BE DONE BY THE CONGRESS. 

THE JUDGMENT IS REVERSED. 

FN1  30 STAT. 563, SEC. 64, AS AMENDED, 11 U.S.C. (SUPP.V) SEC.
104(A)(2), PROVIDES: 

"(A)  THE DEBTS TO HAVE PRIORITY, IN ADVANCE OF THE PAYMENT OF
DIVIDENDS TO CREDITORS, AND TO BE PAID IN FULL OUT OF BANKRUPT ESTATES,
AND THE ORDER OF PAYMENT, SHALL BE  ...  (2) WAGES  ...  NOT TO EXCEED
$600 TO EACH CLAIMANT, WHICH HAVE BEEN EARNED WITHIN THREE MONTHS
BEFORE THE DATE OF THE COMMENCEMENT OF THE PROCEEDING, DUE TO WORKMEN,
SERVANTS, CLERKS, OR TRAVELING OR CITY SALESMEN ON SALARY OR COMMISSION
BASIS, WHOLE OR PART TIME, WHETHER OR NOT SELLING EXCLUSIVELY FOR THE
BANKRUPT;  ...  (4) TAXES LEGALLY DUE AND OWING BY THE BANKRUPT TO THE
UNITED STATES OR ANY STATE OR ANY SUBDIVISION THEREOF:  ...  ." 

FN2  SEE ALSO KUEHNER V. IRVING TRUST CO., 299 U.S. 445, 452;
SAMPSELL V. IMPERIAL PAPER CORP., 313 U.S. 215, 219. 

FN3  30 STAT. 550, AS AMENDED, 11 U.S.C. SEC. 35(A)(5). 

FN4  THE ACT OF AUGUST 19, 1841, C. 9, 5 STAT. 445, ESTABLISHED A
THIRD PRIORITY FOR THOSE WHO HAD PERFORMED "LABOR AS AN OPERATIVE" OF
THE BANKRUPT. 

FN5  E.G., ACT OF MAY 27, 1926, C. 406, SEC. 15, 44 STAT. 666. 

FN6  E.G., ACT OF JUNE 22, 1938, C. 575, SEC. 64, 52 STAT. 874, 11
U.S.C. SEC. 104. 

FN7  E.G., ACT OF JUNE 15, 1906, C. 3333, 34 STAT. 267. 

FN8  ACT OF JUNE 7, 1934, C. 424, 48 STAT. 924. 

FN9  ID., 923. 

FN10  INLAND STEEL CO. V. LABOR BOARD, 170 F.2D 247, 251
(CONTRIBUTIONS TO AN EMPLOYEE PENSION PLAN). 

FN11  MACPHERSON V. EWING, 107 F. SUPP. 666 (SICK PAY). 

FN12  IN RE VICTORY APPAREL MFG. CORP., 154 F. SUPP. 819, 822;
BLESSING V. BLANCHARD, 223 F. 35, 37. 

FN13  49 STAT. 793, 40 U.S.C. SECS. 270A-270D. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

I BELIEVE PAYMENTS MADE BY EMPLOYERS TO UNION WELFARE FUNDS ARE
"WAGES  ...  DUE TO WORKMEN  ... ," UNDER THE BANKRUPTCY ACT'S PRIORITY
CONGRESSIONAL EXPANSION.  PRIORITY FOR THE "FULL AMOUNT OF THE WAGES
DUE" ON ACCOUNT OF "ANY LABOR AS AN OPERATIVE IN THE SERVICE OF ANY
BANKRUPT" WAS FIRST GRANTED IN THE 1841 BANKRUPTCY ACT; IT WAS LIMITED
TO $25.  (FN2)  THE BANKRUPTCY ACTS OF 1867 AND 1898 INCREASED THE SUM
AVAILABLE TO EACH CLAIMANT AND BROADENED THE COVERAGE OF THE PRIORITY
BEYOND "OPERATIVES" OR "WORKMEN" TO "WORKMEN, CLERKS OR SERVANTS." 
(FN3)  IN 1906 CONGRESS BROUGHT STILL MORE WORKERS INTO THE PROTECTED
CATEGORY BY DEFINING THE GROUP AS "WORKMEN, CLERKS, TRAVELLING OR CITY
SALESMEN, OR SERVANTS."  (FN4)  THE PRIORITY WAS ONCE AGAIN INCREASED,
NOW TO $600, IN 1926.  (FN5) 

THE CHANDLER ACT PASSED IN 1938 RAISED THE WORKERS' PRIORITY TO
SECOND BEHIND EXPENSES OF ADMINISTRATION AND AHEAD OF FEDERAL AND LOCAL
TAXES.  AT THE SAME TIME ITS SCOPE WAS FURTHER BROADENED TO COVER
"WORKMEN, SERVANTS, CLERKS, OR TRAVELLING OR CITY SALESMEN ON A SALARY
OR COMMISSION BASIS, WHOLE OR PART-TIME, WHETHER OR NOT SELLING
EXCLUSIVELY FOR THE BANKRUPT."  (FN6) FINALLY, IN 1956, CONGRESS TOOK
OCCASION TO GUARD AGAINST NARROW INTERPRETATION OF THE CLASS OF WORKERS
COVERED BY ADDING TO THE PRIORITY OF THE CHANDLER ACT THE WORDS "AND
FOR THE PURPOSES OF THIS CLAUSE, THE TERM 'TRAVELLING OR CITY SALESMEN'
SHALL INCLUDE ALL SUCH SALESMEN, WHETHER OR NOT THEY ARE INDEPENDENT
CONTRACTORS SELLING THE PRODUCTS OR SERVICES OF THE BANKRUPT ON A
COMMISSION BASIS, WITH OR WITHOUT A DRAWING ACCOUNT OR FORMAL
CONTRACT."  (FN7) 

THIS LAST CHANGE IN THE PRIORITY SECTION WAS THE SOLE SUBJECT OF A
VERY SHORT ACT PASSED BY CONGRESS.  LIKE MOST OF THE EARLIER CHANGES,
IT WAS ENACTED AFTER COURT DECISIONS BARRING SOME WORKERS FROM THE
PROTECTED CLASS OR INDICATING THAT OTHERS MIGHT BE BARRED.  (FN8)  WE
SHOULD, I THINK, BE WARNED BY THE FOREGOING HISTORY OF THE WAGE
PRIORITY SECTION AGAINST NIGGARDLY INTERPRETATIONS OF THE LANGUAGE USED
IN THAT SECTION.    THE COURT ARGUES, HOWEVER, THAT PAYMENTS TO WELFARE
FUNDS ARE NEITHER "WAGES" NOR "DUE TO WORKMEN."  IT IS HARD FOR ME TO
SEE HOW THEY COULD NOT BE "WAGES."  THE PAYMENTS ARE CERTAINLY NOT
GIFTS.  AS WAS STATED LESS THAN A YEAR AGO BY A SENATE COMMITTEE, WHICH
HAD MADE AN EXTENDED STUDY OF PLANS SUCH AS THOSE HERE INVOLVED,
"REGARDLESS OF THE FORM THEY TAKE, THE EMPLOYERS' SHARE OF THE COSTS OF
THESE PLANS OR THE BENEFITS THE EMPLOYERS PROVIDE ARE A FORM OF
COMPENSATION."  (FN9) COURTS HAVE LONG HELD THAT COMPENSATION FOR
SERVICES RENDERED IS A VALID DEFINITION OF "WAGES" BOTH IN THE PRIORITY
CERTAINLY IN ACCORD WITH THE CUSTOMARY MEANING OF THE WORD.  IT
APPEARS, MOREOVER, THAT UNIONS AND EMPLOYEES CONSIDER SUCH PAYMENTS AS
THE EQUIVALENT OF WAGES AND THAT THEY HAVE BEEN TREATED AS WAGES IN
OTHER STATUTES.  (FN11)  IN FACT, WHERE SUCH TREATMENT HAS SEEMED
UNDESIRABLE, CONGRESS HAS EXPRESSLY EXCLUDED THEM FROM THE CATEGORY. 
(FN12)  OF COURSE, A WORD NEED NOT MEAN THE SAME THING IN DIFFERENT
STATUTES, BUT THE MEANING ATTRIBUTED IN ONE ACT IS FAR FROM IRRELEVANT
TO THE INTERPRETATION OF ANOTHER. 

IT CANNOT BE ARGUED THAT A SUM PAID BY AN EMPLOYER FOR A WORKER'S
SERVICES LOSES ITS STATUS AS WAGES MERELY BECAUSE IT IS USED TO
PURCHASE INSURANCE BENEFITS.  (FN13)  FOR THE BANKRUPTCY ACT HAS AS YET
AUTHORIZED NO INVESTIGATION OF HOW A WORKER SPENDS HIS MONEY TO
DETERMINE IF HE IS ENTITLED TO A PRIORITY FOR IT.  AND IN ALL EVENTS
INSURANCE PAYMENTS WOULD NOT SEEM TO BE THE TYPE OF EXPENDITURE WHICH
CONGRESS WOULD DISCOURAGE. 

IT IS ALSO HARD FOR ME TO IMAGINE HOW THE FACT THAT THE MONEYS ARE
PAID TO PARTIES OTHER THAN THE WORKMEN IS IN ANY WAY CONNECTED WITH THE
QUESTION OF WHETHER THE PAYMENTS ARE WAGES, WHATEVER ITS RELEVANCE
MIGHT BE TO WHETHER THE SUMS ARE "DUE TO WORKMEN."  THIS IS ESPECIALLY
TRUE IN THE LIGHT OF SHROPSHIRE, WOODLIFF & CO. V. BUSH, 204 U.S. 186,
WHICH HELD THAT MONEYS DUE AN ASSIGNEE OF THE WORKER WERE ENTITLED TO
PRIORITY AS WAGES.  THE GOVERNMENT ADMITS THAT IF A FORMAL ASSIGNMENT
HAD BEEN MADE HERE, WAGE STATUS MIGHT BE GRANTED.  IT DOES NOT EXPLAIN,
HOWEVER, HOW THE LACK OF A FORMAL ASSIGNMENT CAN CHANGE PAYMENTS FROM
"WAGES" TO SOMETHING ELSE OR MAKE GRANTING A PRIORITY LESS IN LINE WITH
CONGRESSIONAL POLICY.  (FN14) 

THE QUESTION OF WHETHER THE PAYMENTS ARE "DUE TO WORKMEN" IS ON ITS
FACE SOMEWHAT MORE DIFFICULT.  BUT TO MY WAY OF THINKING, THE CORRECT
ANSWER HAS BEEN MADE EASY BY PRIOR CASES IN THIS COURT.  IN THE
SHROPSHIRE CASE, THE COURT SAID, "THE PRIORITY IS ATTACHED TO THE DEBT
AND NOT TO THE PERSON OF THE CREDITOR; TO THE CLAIM AND NOT TO THE
CLAIMANT.  THE ACT DOES NOT ENUMERATE CLASSES OF CREDITORS AND CONFER
UPON THEM THE PRIVILEGE OF PRIORITY IN PAYMENT, BUT, ON THE OTHER HAND,
ENUMERATES CLASSES OF DEBTS AS 'THE DEBTS TO HAVE PRIORITY.'"  204
U.S., AT 189.  IT THEN HELD THAT AN ASSIGNEE OF A WORKER HAD PRIORITY
SINCE THE DEBT WAS WAGES DUE TO WORKMEN. 

EVEN IF IT COULD BE MEANINGFULLY ARGUED THAT IN SHROPSHIRE THE MONEY
WAS AT ONE TIME DUE TO WORKMEN, AND THEREFORE REMAINED SO AFTER
ASSIGNMENT, WHILE HERE IT NEVER WAS DUE TO THEM, WE ARE, I THINK,
PRECLUDED FROM THAT POSITION UNLESS WE DEPART FROM THE REASONING OF
UNITED STATES V. CARTER, 353 U.S. 210.  THAT CASE CONSTRUED SEC. 2(A)
OF THE MILLER ACT, 49 STAT.  794, 40 U.S.C. SEC. 270BA), WHICH PROVIDES
THAT "EVERY PERSON WHO HAS FURNISHED LABOR  ...  AND WHO HAS NOT BEEN
PAID IN FULL  ...  SHALL HAVE THE RIGHT TO SUE ON A PAYMENT BOND  ...
FOR THE SUM OR SUMS JUSTLY DUE HIM."  THE COURT HELD THAT, FOR THE
PURPOSES OF THE MILLER ACT, PAYMENTS TO WELFARE FUNDS ARE, "AS MUCH
'JUSTLY DUE' TO THE EMPLOYEES WHO HAVE EARNED THEM AS ARE THE WAGES
PAYABLE DIRECTLY TO THEM IN CASH."  353 U.S., AT 220.  IN FACT, THE
COURT STATED THAT TRUSTEES OF THE WELFARE FUND HAVE AN EVEN BETTER
RIGHT TO SUE THAN MOST ASSIGNEES SINCE THE TRUSTEES, UNLIKE THE USUAL
ASSIGNEE, SUE FOR THE BENEFIT OF THE WORKERS.  IBID.  I CANNOT SEE WHY
THE BANKRUPTCY ACT SHOULD BE CONSTRUED DIFFERENTLY FROM THE MILLER ACT
ON THE QUESTION OF WHETHER WELFARE FUND CONTRIBUTIONS ARE DUE TO
WORKMEN.  THIS IS ESPECIALY TRUE SINCE THE POLICIES OF THE RELEVANT
PROVISIONS OF THE TWO ACTS ARE QUITE SIMILAR. 

FINALLY IT SEEMS TO ME UNDESIRABLE TO MAKE A DISTINCTION IN THIS AREA
BETWEEN PAYMENTS ON ASSIGNMENT AND PAYMENTS IN TRUST.  AT BEST IT WOULD
LET THE CARRYING OUT OF CONGRESSIONAL POLICY DEPEND ON THE SKILL WITH
WHICH UNIONS PREPARE LEGAL DOCUMENTS, AND ON THE VARIOUS STATE LAWS
COVERING THE VALIDITY OF WAGE ASSIGNMENTS.  AT WORST IT WOULD GIVE
PRIORITIES TO ASSIGNEES OF THE WORKMEN, USUALLY CREDITORS, WHILE
DENYING THEM TO INSURANCE FUNDS FOR THEIR BENEFIT.  UNLESS WE ARE
PREPARED TO REPUDIATE WHAT WE SAID IN THE CARTER AND SHROPSHIRE CASES,
I THINK SEC. 64(A)(2) OF THE BANKRUPTCY ACT MEANS THAT THE SUMS WHICH
EMBASSY CONTRACTED TO PAY TO THESE EMPLOYEES FOR THEIR LABOR BY MAKING
PAYMENTS TO WELFARE FUNDS ARE WAGES DUE TO WORKERS.  IF THE PROVISION
GRANTING PRIORITY TO WAGES IS TO BE NARROWED, IT SHOULD BE DONE BY
CONGRESS - NOT BY THIS COURT. 

I WOULD AFFIRM. 

FN1  SEC. 64, 30 STAT. 563, AS AMENDED, 11 U.S.C. SEC. 104.  THE
QUESTION HAS CAUSED CONSIDERABLE DIFFICULTY IN THE FEDERAL COURTS. 
COMPARE, E.G., THE OPINIONS BELOW IN THIS CASE, 254 F.2D 475, 154 F.
SUPP. 141 AND IN RE OTTO, 146 F. SUPP. 786, WITH LOCAL 140 SECURITY
FUND V. HACK, 242 F.2D 375; IN RE BRASSEL, 135 F. SUPP. 827; IN RE
VICTORY APPAREL MFG. CORP., 154 F. SUPP. 819.  SIMILARLY COMMENTATORS
HAVE SPLIT.  COMPARE, E.G., NOTES, 19 GA. B.J. 107; 66 YALE L.J. 449;
44 VA. L. REV. 995; 57 MICH. L. REV. 403, WITH NOTES, 34 CHI.-KENT L.
REV. 235; 42 MINN. L. REV. 295. 

FN2  ACT OF AUGUST 19, 1841, 5 STAT. 445. 

FN3  ACT OF MARCH 2, 1867, 14 STAT. 529; ACT OF JULY 1, 1898, 30
STAT. 563. 

FN4  ACT OF JUNE 15, 1906, 34 STAT. 267. 

FN5  ACT OF MAY 27, 1926, 44 STAT. 667. 

FN6  ACT OF JUNE 22, 1938, 52 STAT. 874. 

FN7  70 STAT. 725, 11 U.S.C. (SUPP. V) SEC. 104. 

FN8  SEE, E.G., IN RE SCANLAN, 97 F. 26; IN RE GREENEWALD, 99 F. 705;
IN RE KOMINERS, 252 F. 183; IN RE COLLIN, 18 F. SUPP. 848; IN RE CLOVER
DAIRIES, INC., 42 F. SUPP. 1006; IN RE HERBERT CANDY CO., 43 F. SUPP.
588.  IN RECOMMENDING THE LATEST CHANGE THE HOUSE JUDICIARY COMMITTEE
STATED "  ...  LANGUAGE IN SOME COURT CASES HAS BEEN CONFUSING  ...  .
THERE IS LANGUAGE FROM WHICH ONE MIGHT INFER THAT A SALESMAN WHO WAS A
'SEPARATE CONTRACTOR' COULD NOT QUALIFY."  H.R. REP. NO. 921, 84TH
CONG., 1ST SESS. 2. 

FN9  S. REP. NO. 1440, 85TH CONG., 2D SESS. 4.  THE COMMITTEE ALSO
CALLED ATTENTION TO THE FACT THAT "IN LITTLE MORE THAN A DECADE PRIVATE
EMPLOYEE WELFARE AND PENSION PLANS HAVE GROWN FROM RELATIVELY SMALL
SIGNIFICANCE TO A POSITION WHERE APPROXIMATELY 84 MILLION PERSONS ARE
DEPENDING IN SOME MANNER UPON THE BENEFITS WHICH THEY PROMISE."  ID.,
AT 3. 

FN10  E.G., IN RE GUREWITZ, 121 F. 982; GLANDZIS V. CALLINICOS, 140
F.2D 111; NATIONAL LABOR RELATIONS BOARD V. BEMIS BRO. BAG CO., 206
F.2D 33, 37.  SEE ALSO NOTE, 19 GA. B.J. 107. 

FN11  SEE, E.G., INLAND STEEL CO. V. NATIONAL LABOR RELATIONS BOARD,
170 F.2D 247, 251.  SEE ALSO NOTE, 66 YALE L.J. 449, 458, 460. 

FN12  68A STAT. 32, 26 U.S.C. (SUPP. IV) SEC. 106; 68A STAT. 417, 26
U.S.C. (SUPP. IV) SEC. 3121(A); 68A STAT. 447, 26 U.S.C. (SUPP. IV)
SEC. 3306(B)(2).  CF. BROWN V. MARYLAND, 12 WHEAT.  419, 438, "  ...
THE EXCEPTION OF A PARTICULAR THING FROM GENERAL WORDS, PROVES THAT, IN
THE OPINION OF THE LAWGIVER, THE THING EXCEPTED WOULD BE WITHIN THE
GENERAL CLAUSE HAD THE EXCEPTION NOT BEEN MADE ...  ." 

FN13  SEE IN RE OTTO, 146 F. SUPP. 786, 790; IN RE ROSS, 117 F. SUPP.
346. 

FN14  THE COURT NOTES THAT WORKMEN'S COMPENSATION CLAIMS WERE AT ONE
TIME GIVEN PRIORITY BY CONGRESS AND WERE SUBSEQUENTLY REMOVED.  AS
COMPENSATION RIGHTS ARE NOT CONTRACTED FOR IN EXCHANGE FOR LABOR I DO
NOT SEE HOW THEIR DISPOSITION IS RELEVANT TO THE PROBLEM IN THIS CASE. 

..END :




BROWN V. UNITED STATES 359 U.S. 41 


NO. 4.  ARGUED OCTOBER 16, 1958 - DECIDED MARCH 9, 1959 - 247 F.2D 332,
AFFIRMED. 


SUBPOENAED TO TESTIFY BEFORE A FEDERAL GRAND JURY WHICH WAS
INVESTIGATING POSSIBLE VIOLATIONS OF PART II OF THE INTERSTATE COMMERCE
ACT, PETITIONER REFUSED, ON GROUNDS OF POSSIBLE SELF-INCRIMINATION, TO
ANSWER QUESTIONS WHICH WERE CONCEDEDLY RELEVANT TO THE GRAND JURY'S
INQUIRY.  THE GRAND JURY SOUGHT THE AID OF THE DISTRICT JUDGE, WHO
HEARD EXTENSIVE ARGUMENTS ON THE SUBJECT, RULED THAT PETITIONER WOULD
BE ACCORDED IMMUNITY AS EXTENSIVE AS THE PRIVILEGE HE HAD ASSERTED, AND
ORDERED PETITIONER TO ANSWER THE QUESTIONS.  AFTER RETURNING TO THE
JURY ROOM, PETITIONER PERSISTED IN HIS REFUSAL, AND HE WAS AGAIN
BROUGHT BEFORE THE DISTRICT JUDGE, WHO ADDRESSED THE SAME QUESTIONS TO
HIM IN THE PRESENCE OF THE GRAND JURY, EXPLICITLY DIRECTED HIM TO
ANSWER THEM, AND, UPON HIS REFUSAL TO DO SO, ADJUDGED HIM GUILTY OF
CRIMINAL CONTEMPT AND SENTENCED HIM TO IMPRISONMENT FOR 15 MONTHS. 
HELD:  THE JUDGMENT IS SUSTAINED.  PP. 42-52. 

1.  SECTION 205(E) OF THE MOTOR CARRIER ACT, 49 U.S.C. SEC. 305(D),
CLOTHED PETITIONER WITH STATUTORY IMMUNITY COEXTENSIVE WITH HIS
CONSTITUTIONAL PRIVILEGE NOT TO INCRIMINATE HIMSELF; AND, THEREFORE, HE
HAD AN UNQUALIFIED DUTY TO ANSWER THE QUESTIONS AS HE WAS DIRECTED TO
DO.  PP. 44-47. 

2.  SINCE PETITIONER'S DISOBEDIENCE OF THE COURT'S ORDER OCCURRED IN
THE COURT'S PRESENCE, IT WAS PROPER FOR THE COURT TO PROCEED UNDER RULE
42(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE; AND THE COURT'S
ACTION IN AFFORDING PETITIONER A LOCUS PENITENTIAE BEFORE FINALLY
ADJUDICATING HIM IN CONTEMPT WAS ENTIRELY PROPER.  PP. 47-52. 

3. THE SENTENCE OF 15 MONTHS' IMPRISONMENT WAS NOT AN ABUSE OF THE
DISTRICT COURT'S DISCRETION.  P. 52. 

BROWN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS SENTENCED TO 15 MONTHS' IMPRISONMENT FOR CRIMINAL
CONTEMPT STEMMING FROM HIS REFUSAL TO TESTIFY BEFORE A FEDERAL GRAND
JURY.  HIS CONVICTION WAS AFFIRMED BY THE COURT OF APPEALS, 247 F.2D
332.  THE CASE WAS BROUGHT HERE PRIMARILY TO REVIEW THE VALIDITY OF THE
PROCEDURE WHICH RESULTED IN THE CONTEMPT ADJUDICATION.  356 U.S. 926. 
OTHER ISSUES RELATE TO THE NATURE AND EXTENT OF IMMUNITY FROM
PROSECUTION CONFERRED BY SEC. 205(E) OF THE INTERSTATE COMMERCE ACT, AS
AMENDED, (FN1) AND THE SEVERITY OF THE PUNISHMENT IMPOSED BY THE
DISTRICT COURT. 

A GRAND JURY IN THE SOUTHERN DISTRICT OF NEW YORK INVESTIGATING
POSSIBLE VIOLATIONS OF PART II OF THE INTERSTATE COMMERCE ACT (FN2)
ISSUED A SUBPOENA DIRECTING THE PETITIONER TO APPEAR AND TESTIFY AS TO
"ALL AND EVERYTHING WHICH YOU MAY KNOW IN REGARD TO AN ALLEGED
VIOLATION OF SECTIONS 309, 322, TITLE 49, UNITED STATES CODE."  IN
RESPONSE TO THIS SUBPOENA THE PETITIONER APPEARED AND, AFTER BEING
SWORN, ANSWERED A FEW PRELIMINARY QUESTIONS.  HE WAS THEN ASKED SIX
FURTHER QUESTIONS CONCEDEDLY RELEVANT TO THE GRAND JURY'S INQUIRY. 
THESE HE REFUSED TO ANSWER UPON THE GROUND OF POSSIBLE SELF
INCRIMINATION.  AFTER CONSULTING WITH HIS LAWYER, WHO WAS CONTINUOUSLY
PRESENT IN AN ADJOINING ANTEROOM, THE PETITIONER PERSISTED IN HIS
REFUSAL TO ANSWER, ALTHOUGH ADVISED AT LENGTH BY THE ASSISTANT UNITED
STATES ATTORNEY THAT THE APPLICABLE STATUTE CONFERRED COMPLETE IMMUNITY
FROM PROSECUTION AS TO ANY MATTER CONCERNING WHICH THE PETITIONER MIGHT
TESTIFY, AND THAT, THEREFORE, "YOU DO NOT HAVE ANY PRIVILEGE TO PLEAD
THE FIFTH AMENDMENT." 

THEREUPON THE SCENE OF THE PROCEEDINGS SHIFTED TO THE COURTROOM,
WHERE THE GRAND JURY SOUGHT THE AID OF THE DISTRICT JUDGE.  AFTER BEING
APPRISED OF WHAT HAD TRANSPIRED IN THE GRAND JURY ROOM, THE DISTRUCT
JUDGE HEARD EXTENSIVE ARGUMENT BY COUNSEL AS TO THE SCOPE OF IMMUNITY
AFFORDED A GRAND JURY WITNESS UNDER THE APPLICABLE STATUTE. 

FOLLOWING A WEEKEND RECESS THE DISTRICT JUDGE RULED THAT UNDER THE
STATUTE THE PETITIONER WOULD BE ACCORDED IMMUNITY AS EXTENSIVE AS THE
PRIVILEGE HE HAD ASSERTED, AND DIRECTED THAT THE PETITIONER THEREFORE
RETURN TO THE GRAND JURY ROOM AND ANSWER THE QUESTIONS.  LATER THE SAME
DAY THE GRAND JURY AGAIN RETURNED TO THE COURTROOM "TO REQUEST THE AID
AND ASSISTANCE OF THE COURT."  THE DISTRICT JUDGE WAS ADVISED THROUGH
THE OFFICIAL REPORTER THAT THE PETITIONER HAD REFUSED TO OBEY THE
COURT'S ORDER TO ANSWER THE QUESTIONS. 

THE JUDGE THEN ADDRESSED THE SAME QUESTIONS TO THE PETITIONER IN THE
GRAND JURY'S PRESENCE.  EACH QUESTION WAS MET WITH A REFUSAL TO ANSWER
UPON THE GROUND OF POSSIBLE SELF-INCRIMINATION.  THE PETITIONER WAS
THEREUPON EXPLICITLY DIRECTED BY THE JUDGE TO ANSWER EACH QUESTION, AND
HE JUST AS EXPLICITLY REFUSED.  THE JUDGE INQUIRED WHETHER THE
PETITIONER WOULD PERSIST IN HIS REFUSAL IF HE RETURNED TO THE GRAND
JURY ROOM AND WERE AGAIN ASKED THE QUESTIONS THERE.  THE PETITIONER
REPLIED THAT HE WOULD.  AFTER FURTHER ARGUMENT BY COUNSEL, THE DISTRICT
JUDGE HELD THE PETITIONER IN CONTEMPT AND IMPOSED SENTENCE. 

THROUGHOUT THE PROCEEDINGS IN THE COURTROOM THE PETITIONER WAS
REPRESENTED BY COUNSEL, WHO UNSUCCESSFULLY ADVANCED THREE BASIC
CONTENTIONS: (1) A WITNESS WHO TESTIFIES BEFORE A GRAND JURY
INVESTIGATING OFFENSES UNDER THE MOTOR CARRIER ACT IS ACCORDED NO
STATUTORY IMMUNITY FROM SUBSEQUENT PROSECUTION BASED UPON HIS
TESTIMONY.  (2) EVEN IF SOME IMMUNITY IS CONFERRED, IT IS NOT
COEXTENSIVE WITH THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION.  (3) IN ANY EVENT, THE DISTRICT COURT, BY ADJUDGING THE
PETITIONER IN CRIMINAL CONTEMPT WITHOUT FOLLOWING THE PROCEDURAL
REQUIREMENTS OF RULE 42(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE,
DEPRIVED THE PETITIONER OF DUE PROCESS OF LAW.  THE SAME CONTENTIONS
ARE ADVANCED HERE.  IN ADDITION, WE ARE ASKED TO HOLD THAT THE SENTENCE
OF 15 MONTHS' IMPRISONMENT WAS AN ABUSE OF THE DISTRICT COURT'S
DISCRETION. 

IN DETERMINING THAT SEC. 205(E) OF THE MOTOR CARRIER ACT CLOTHED THE
PETITIONER WITH STATUTORY IMMUNITY COEXTENSIVE WITH HIS CONSTITUTIONAL
PRIVILEGE NOT TO INCRIMINATE HIMSELF, THE DISTRICT COURT AND THE COURT
OF APPEALS WERE PLAINLY CORRECT.  THE RELEVANT STATUTORY LANGUAGE IS
UNAMBIGUOUS:  "  ...  AND ANY PERSON SUBPOENAED OR TESTIFYING IN
CONNECTION WITH ANY MATTER UNDER INVESTIGATION UNDER THIS CHAPTER SHALL
HAVE THE SAME RIGHTS, PRIVILEGES, AND IMMUNITIES AND BE SUBJECT TO THE
SAME DUTIES, LIABILITIES, AND PENALTIES AS THOUGH SUCH MATTER AROSE
UNDER CHAPTER 1 OF THIS TITLE (PART I OF THE INTERSTATE COMMERCE ACT)
...  ."  (FN3)  THE OBVIOUS PURPOSE AND EFFECT OF THIS LANGUAGE IS TO
CONFER THE SAME IMMUNITY UPON A WITNESS TESTIFYING IN AN INVESTIGATION
UNDER PART II OF THE INTERSTATE COMMERCE ACT AS IS CONFERRED UPON ONE
TESTIFYING IN AN INVESTIGATION UNDER PART I. BOTH PART I AND PART II
CONTAIN CRIMINAL SANCTIONS, AND THE POWER OF A GRAND JURY TO
INVESTIGATE VIOLATIONS OF EITHER PART IS UNQUESTIONED. 

THE STATUTE WHICH CONFERS IMMUNITY UPON A WITNESS TESTIFYING IN A
GRAND JURY INVESTIGATION UNDER PART I WAS ENACTED IN 1893.  (FN4)  FOR
MORE THAN HALF A CENTURY IT HAS BEEN SETTLED THAT THIS STATUTE CONFERS
IMMUNITY FROM PROSECUTION COEXTENSIVE WITH THE CONSTITUTIONAL PRIVILEGE
AGAINST SELF-INCRIMINATION, AND THAT THE WITNESS MAY NOT THEREFORE
LAWFULLY REFUSE TO TESTIFY.  BROWN V. WALKER, 161 U.S. 591 (1896).  THE
CONTEXT IN WHICH THE DOCTRINE ORIGINATED AND THE HISTORY OF ITS
REAFFIRMANCE BY THIS COURT IN ULLMAN V. UNITED STATES, 350 U.S. 422, AS
TO MAKE IT A NEEDLESS EXERCISE TO RETRACE THAT GROUND HERE.  SUFFICE IT
TO REPEAT THAT BROWN V. WALKER HAS BECOME "PART OF OUR CONSTITUTIONAL
FABRIC."  350 U.S., AT 438.  IT IS THUS CLEARLY TOO LATE IN THE DAY TO
QUESTION THE CONSTITUTIONAL SUFFICIENCY OF THE IMMUNITY PROVIDED UNDER
PART I OF THE ACT. 

IN CONTENDING THAT THIS IMMUNITY IS NOT FULLY IMPORTED INTO PART II
THE PETITIONER GRASPS AT STRAWS.  HE POINTS OUT THAT THE ABOVE-QUOTED
LANGUAGE OF 49 U.S.C. SEC. 305(D) WHICH INCORPORATES INTO PART II THE
IMMUNITY PROVISIONS OF PART I IS SEPARATED BY ONLY A SEMICOLON FROM A
PROVISION WHICH GIVES THE COMMISSION INVESTIGATIVE POWERS UNDER PART
II.  SEE FOOTNOTE 3.  HE WOULD THEREFORE HAVE US REWRITE THE SECTION SO
AS TO MAKE THE IMMUNITY PROVISION APPLICABLE ONLY TO WITNESSES
APPEARING BEFORE THE COMMISSION, NOT TO THOSE APPEARING BEFORE A GRAND
JURY OR IN A COURT.  SUCH A CONSTRUCTION WOULD NOT ONLY DO VIOLENCE TO
PLAIN LANGUAGE, BUT ALSO, AS THE COURT OF APPEALS OBSERVED, TO THE
WHOLE STRUCTURE OF THE INTERSTATE COMMERCE ACT.  SEE 247 F.2D, AT 336
337. 

THE PETITIONER ARGUES ALTERNATIVELY THAT EVEN IF SOME IMMUNITY IS
GRANTED BY PART II TO A GRAND JURY WITNESS, THE IMMUNITY IS NOT
COMMENSURATE WITH THAT OF PART I, AND THAT ITS SCOPE IS THEREFORE
CONSTITUTIONALLY INSUFFICIENT.  THE CONTENTION IS THAT SEC. 305(D)
PROVIDES IMMUNITY FROM PROSECUTION ONLY FOR OFFENSES RELATED TO
VIOLATIONS OF THE MOTOR CARRIER ACT ITSELF BECAUSE OF THE CLAUSE
APPEARING AT THE BEGINNING OF THE SECTION - "SO FAR AS MAY BE NECESSARY
FOR THE PURPOSES OF THIS CHAPTER."  SEE FOOTNOTE 3.  ASSUMING THAT THIS
CLAUSE LIMITS THE IMMUNITY PROVISION OF THE SECTION AT ALL, IT CLEARLY
LIMITS ONLY THE CLASS OF WITNESSES TO WHOM THE IMMUNITY WILL ATTACH,
NOT THE SCOPE OF THE IMMUNITY CONFERRED.  THE PETITIONER "SUBPOENAED
...  IN CONNECTION WITH A MATTER UNDER INVESTIGATION UNDER THIS CHAPTER
...  NECESSARY FOR THE PURPOSES OF THIS CHAPTER" WAS CLEARLY WITHIN
THAT CLASS. 

CONGRESS THUS PROVIDED THAT THE PETITIONER COULD NOT AND WOULD NOT
INCRIMINATE HIMSELF BY ANSWERING THE QUESTIONS PUT TO HIM.  HE COULD
NOT "BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR FORFEITURE FOR OR ON
ACCOUNT OF ANY TRANSACTION, MATTER OR THING, CONCERNING WHICH HE MIGHT
TESTIFY ...  ."  49 U.S.C. SEC. 46.  HE THEREFORE HAD AN UNQUALIFIED
DUTY TO ANSWER THE QUESTIONS AS HE WAS DIRECTED TO DO. 

WE TURN THEN TO THE PETITIONER'S ATTACK UPON THE VALIDITY OF THE
PROCEDURE WHICH THE DISTRICT COURT FOLLOWED IN ADJUDICATING HIM IN
CONTEMPT.  (FN5)  THIS PROCEDURE, IT IS CONTENDED, ROBBED THE
PETITIONER NOT ONLY OF THE SAFEGUARDS OF NOTICE, OPPORTUNITY TO PREPARE
A DEFENSE, AND A HEARING, BUT ALSO OF THE PRESUMPTION OF INNOCENCE AND
OTHER RIGHTS BASIC TO A FAIR CRIMINAL TRIAL. 

IN VIEW OF THE APPARENT BREADTH OF THE PETITIONER'S ARGUMENT, IT MAY
PROMOTE ANALYSIS OF THIS ASPECT OF THE CASE TO EMPHASIZE AT THE OUTSET
WHAT IT DOES NOT INVOLVE.  THIS IS NOT A SITUATION WHERE THE CONTEMPT
WAS IN ANY SENSE PERSONAL TO THE JUDGE, RAISING ISSUES OF POSSIBLE
UNFAIRNESS RESULTING FROM THE OPERATION OF HUMAN EMOTIONS.  CF.  COOKE
V. UNITED STATES, 267 U.S. 517, 539; SACHER V. UNITED STATES, 343 U.S.
1; OFFUTT V. UNITED STATES, 348 U.S. 11.  THIS IS NOT A CASE OF
"MISBEHAVIOR" INVOLVING FACTUAL ISSUES AS TO THE NATURE OF THE
PETITIONER'S CONDUCT AND WHETHER IT OCCURRED IN THE "PRESENCE" OF THE
COURT OR "SO NEAR THERETO AS TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE."  (FN6)  CF. EX PARTE SAVIN, 131 U.S. 267; EX PARTE CUDDY, 131
U.S. 280; NYE V. UNITED STATES, 313 U.S. 33, 44-53.  MOREOVER, THE
PETITIONER DOES NOT QUESTION THE POWER OF THE COURT TO PUNISH
DISOBEDIENCE OF ITS LAWFUL ORDER AS A CRIMINAL CONTEMPT, (FN7) AND TO
DO SO SUMMARILY, IF THE DISOBEDIENCE OCCURS IN THE PRESENCE OF THE
COURT AND IN THE SIGHT OR HEARING OF THE JUDGE.  (FN8) 

THE ISSUE PRESENTED IS THUS CONSIDERABLY NARROWER THAN THE BROAD
STROKES OF THE PETITIONER'S ARGUMENT WOULD AT FIRST SUGGEST.  INDEED,
THE ARGUMENT BOILS DOWN TO THE CONTENTION THAT WHEN THE PETITIONER
FIRST DISOBEYED THE COURT'S ORDER IN THE GRAND JURY ROOM THE COURT HAD
NO CHOICE BUT TO INITIATE CRIMINAL CONTEMPT PROCEEDINGS AGAINST HIM AT
ONCE, UNDER THE PROVISIONS OF RULE 42(B) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, (FN9) AND THAT IT THEREFORE VIOLATED HIS RIGHTS BY
CALLING HIM BEFORE IT AND GIVING HIM ANOTHER OPPORTUNITY TO ANSWER THE
QUESTIONS BEFORE ADJUDICATING HIM IN CONTEMPT.  THIS ARGUMENT
DISREGARDS THE HISTORIC RELATIONSHIP BETWEEN COURT AND GRAND JURY.  IT
FINDS SUPPORT IN NEITHER PRECEDENT NOR REASON. 

A GRAND JURY IS CLOTHED WITH GREAT INDEPENDENCE IN MANY AREAS, BUT IT
REMAINS AN APPENDAGE OF THE COURT, POWERLESS TO PERFORM ITS
INVESTIGATIVE FUNCTION WITHOUT THE COURT'S AID, BECAUSE POWERLESS
ITSELF TO COMPEL THE TESTIMONY OF WITNESSES.  IT IS THE COURT'S PROCESS
WHICH SUMMONS THE WITNESS TO ATTEND AND GIVE TESTIMONY, AND IT IS THE
COURT WHICH MUST COMPEL A WITNESS TO TESTIFY IF, AFTER APPEARING, HE
REFUSES TO DO SO. 

WHEN THE PETITIONER FIRST REFUSED TO ANSWER THE GRAND JURY'S
QUESTIONS, HE WAS GUILTY OF NO CONTEMPT.  HE WAS ENTITLED TO PERSIST IN
HIS REFUSAL UNTIL THE COURT ORDERED HIM TO ANSWER.  UNLESS, THEREFORE,
IT WAS TO BE FRUSTRATED IN ITS INVESTIGATIVE PURPOSE, THE GRAND JURY
HAD TO DO EXACTLY WHAT IT DID - TURN TO THE COURT FOR HELP.  IF THE
COURT HAD RULED THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION HAD BEEN
PROPERLY INVOKED, THAT WOULD HAVE BEEN THE END OF THE MATTER.  EVEN
AFTER AN ADVERSE RULING UPON HIS CLAIM OF PRIVILEGE, THE PETITIONER WAS
STILL GUILTY OF NO CONTEMPT.   IT WAS INCUMBENT UPON THE COURT
UNEQUIVOCALLY TO ORDER THE PETITIONER TO ANSWER.  CF. WONG GIM YING V.
UNITED STATES, 98 U.S. APP. D.C. 23, 231 F.2D 776.  THE COURT DID SO. 

WHEN UPON HIS RETURN TO THE GRAND JURY ROOM THE PETITIONER AGAIN
REFUSED TO ANSWER THE GRAND JURY'S QUESTIONS, NOW IN DIRECT
DISOBEDIENCE OF THE COURT'S ORDER, HE WAS FOR THE FIRST TIME GUILTY OF
CONTEMPT.  AT THAT POINT A CONTEMPT PROCEEDING COULD UNQUESTIONABLY AND
QUITE PROPERLY HAVE BEEN INITIATED.  SINCE THIS DISOBEDIENCE OF THE
ORDER DID NOT TAKE PLACE IN THE ACTUAL PRESENCE OF THE COURT, AND THUS
COULD BE MADE KNOWN TO THE COURT ONLY BY THE TAKING OF EVIDENCE, THE
PROCEEDING WOULD HAVE BEEN CONDUCTED UPON NOTICE AND HEARING IN
CONFORMITY WITH RULE 42(B).  SEE CARLSON V. UNITED STATES, 209 F.2D
209, 216 (C.A. 1ST CIR.). 

A JUDGE MORE INTENT UPON PUNISHING THE WITNESS THAN AIDING THE GRAND
JURY IN ITS INVESTIGATION MIGHT WELL HAVE TAKEN JUST SUCH A COURSE. 
INSTEAD, THE COURT MADE ANOTHER EFFORT TO INDUCE THE PETITIONER TO
TESTIFY.  AGAIN UNEQUIVOCALLY ADVISING THE PETITIONER THAT THE STATUTE
AFFORDED HIM COMPLETE IMMUNITY, THE COURT DIRECTED HIM TO ANSWER THE
QUESTIONS.  HAD THE PETITIONER DONE SO, HE WOULD HAVE PURGED HIMSELF OF
CONTEMPT, AND THE GRAND JURY'S INVESTIGATION COULD HAVE PROCEEDED. 
(FN10)  HIS DELIBERATE REFUSAL, CONTINUING HIS CONTEMPT, CF. YATES V.
UNITED STATES, 355 U.S. 66, 75, LEFT THE COURT NO CHOICE.  (FN11)
SINCE THE DISOBEDIENCE OCCURRED IN THE COURT'S PRESENCE, IT WAS CLEARLY
PROPER TO PROCEED UNDER RULE 42(A). 

RULE 42 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE IS NO INNOVATION. 
IT SIMPLY MAKES "MORE EXPLICIT" THE LONG-SETTLED USAGES OF LAW
GOVERNING THE PROCEDURE TO BE FOLLOWED IN CONTEMPT PROCEEDINGS.  (FN12)
NO DECISION OF THIS COURT HAS EVER QUESTIONED THE PROPRIETY OF SUMMARY
CONTEMPT PROCEEDINGS IN AID OF A GRAND JURY INVESTIGATION.  REPEATED
DECISIONS OF THIS COURT AND THE COURTS OF APPEALS HAVE, AT LEAST SUB
SILENTIO, APPROVED SUCH A PROCEDURE, STEMMING AS IT DOES FROM THE
USAGES OF THE COMMON LAW.  (FN13)  INDEED LESS THAN A DECADE AGO THIS
COURT DID NOT CONSIDER THE QUESTION SUFFICIENTLY DOUBTFUL TO MERIT
DISCUSSION.  (FN14)  IN THE LIGHT, THEREFORE, OF BOTH REASON AND
AUTHORITY, WE HOLD THAT THE COURT'S ACTION IN AFFORDING THE PETITIONER
A LOCUS PENITENTIAE BEFORE FINALLY ADJUDICATING HIM IN CONTEMPT WAS
ENTIRELY PROPER.    WE HOLD, FINALLY, THAT THE SENTENCE OF 15 MONTHS'
IMPRISONMENT WAS NOT AN ABUSE OF THE DISTRICT COURT'S DISCRETION. 
BECAUSE THERE IS NO STATUTORY LIMIT UPON A DISTRICT COURT'S SENTENCING
POWER IN CASES OF CRIMINAL CONTEMPT, GREEN V. UNITED STATES, 356 U.S.
165, THIS COURT IS NOT WITHOUT POWER TO REVIEW ITS EXERCISE.  CF.
YATES V. UNITED STATES, 356 U.S. 363; NILVA V. UNITED STATES, 352 U.S.
385, 396.  BUT THE DECISION IS ONE PRIMARILY FOR THE DISTRICT COURT, TO
BE MADE "WITH THE UTMOST SENSE OF RESPONSIBILITY AND CIRCUMSPECTION." 
GREEN V. UNITED STATES, SUPRA, AT 188.  THE RECORD DOES NOT INDICATE
THAT THE DISTRICT JUDGE'S DECISION WAS OTHERWISE REACHED.  BEFORE
SENTENCE WAS IMPOSED, THE PETITIONER'S COUNSEL WAS FULLY, REPEATEDLY
AND PATIENTLY HEARD.  (FN15)  AFFIRMED. 

FN1  49 STAT. 550; 54 STAT. 922, 49 U.S.C. SEC. 305(D). 

FN2  COMMONLY KNOWN AS THE MOTOR CARRIER ACT, 49 STAT. 543, AS
AMENDED, 54 STAT.  919, 49 U.S.C. SEC. 301 ET SEQ. 

FN3  THE FULL TEXT OF THE SUBSECTION, AS IT APPEARS IN THE U.S.C.  IS
AS FOLLOWS:  'SO FAR AS MAY BE NECESSARY FOR THE PURPOSES OF THIS
CHAPTER, THE COMMISSION AND THE MEMBERS AND EXAMINERS THEREOF AND JOINT
BOARDS SHALL HAVE THE SAME POWER TO ADMINISTER OATHS, AND REQUIRE BY
SUBPOENA THE ATTENDANCE AND TESTIMONY OF WITNESSES AND THE PRODUCTION
OF BOOKS, PAPERS, TARIFFS, CONTRACTS, AGREEMENTS, AND DOCUMENTS, AND TO
TAKE TESTIMONY BY DEPOSITION, RELATING TO ANY MATTER UNDER
INVESTIGATION, AS THE COMMISSION HAS IN A MATTER ARISING UNDER CHAPTER
1 OF THIS TITLE; AND ANY PERSON SUBPOENAED OR TESTIFYING IN CONNECTION
WITH ANY MATTER UNDER INVESTIGATION UNDER THIS CHAPTER SHALL HAVE THE
SAME RIGHTS, PRIVILEGES, AND IMMUNITIES AND BE SUBJECT TO THE SAME
DUTIES, LIABILITIES, AND PENALTIES AS THOUGH SUCH MATTER AROSE UNDER
CHAPTER 1 OF THIS TITLE, UNLESS OTHERWISE PROVIDED IN THIS CHAPTER." 
46 U.S.C. SEC. 305(D). 

FN4  27 STAT. 443, 49 U.S.C. SEC. 46.  "NO PERSON SHALL BE EXCUSED
FROM ATTENDING AND TESTIFYING OR FROM PRODUCING BOOKS, PAPERS, TARIFFS,
CONTRACTS, AGREEMENTS, AND DOCUMENTS BEFORE THE INTERSTATE COMMERCE
COMMISSION, OR IN OBEDIENCE TO THE SUBPOENA OF THE COMMISSION, WHETHER
SUCH SUBPOENA BE SIGNED OR ISSUED BY ONE OR MORE COMMISSIONERS, ON IN
ANY CAUSE OR PROCEEDING, CRIMINAL OR OTHERWISE, BASED UPON OR GROWING
OUT OF ANY ALLEGED VIOLATION OF CHAPTER 1 OF THIS TITLE ON THE GROUND
OR FOR THE REASON THAT THE TESTIMONY OR EVIDENCE, DOCUMENTARY OR
OTHERWISE, REQUIRED OF HIM, MAY TEND TO CRIMINATE HIM OR SUBJECT HIM TO
A PENALTY OR FORFEITURE.  BUT NO PERSON SHALL BE PROSECUTED OR
SUBJECTED TO ANY PENALTY OR FORFEITURE FOR OR ON ACCOUNT OF ANY
TRANSACTION, MATTER OR THING, CONCERNING WHICH HE MAY TESTIFY, OR
PRODUCE EVIDENCE, DOCUMENTARY OR OTHERWISE, BEFORE SAID COMMISSION, OR
IN OBEDIENCE TO ITS SUBPOENA, OR THE SUBPOENA OF EITHER OF THEM, OR IN
ANY SUCH CASE OR PROCEEDING:  PROVIDED, THAT NO PERSON SO TESTIFYING
SHALL BE EXEMPT FROM PROSECUTION AND PUNISHMENT FOR PERJURY COMMITTED
IN SO TESTIFYING.  ANY PERSON WHO SHALL NEGLECT OR REFUSE TO ATTEND AND
TESTIFY, OR TO ANSWER ANY LAWFUL INQUIRY, OR TO PRODUCE BOOKS, PAPERS,
TARIFFS, CONTRACTS, AGREEMENTS, AND DOCUMENTS, IF IN HIS POWER TO DO
SO, IN OBEDIENCE TO THE SUBPOENA OR LAWFUL REQUIREMENT OF THE
COMMISSION SHALL BE GUILTY OF AN OFFENSE AND UPON CONVICTION THEREOF BY
A COURT OF COMPETENT JURISDICTION SHALL BE PUNISHED BY A FINE OF NOT
LESS THAN $100 NOR MORE THAN $5,000, OR BY IMPRISONMENT FOR NOT MORE
THAN ONE YEAR OR BY BOTH SUCH FINE AND IMPRISONMENT." 

SEE ALSO 32 STAT. 904, 49 U.S.C. SEC. 47, WHICH PROVIDES:  "NO PERSON
SHALL BE PROSECUTED OR BE SUBJECTED TO ANY PENALTY OR FORFEITURE FOR OR
ON ACCOUNT OF ANY TRANSACTION, MATTER, OR THING CONCERNING WHICH HE MAY
TESTIFY OR PRODUCE EVIDENCE, DOCUMENTARY OR OTHERWISE, IN ANY
PROCEEDING, SUIT, OR PROSECUTION UNDER CHAPTER 1 OF THIS TITLE OR ANY
LAW AMENDATORY THEREOF OR SUPPLEMENTAL THERETO:  PROVIDED, THAT NO
PERSON SO TESTIFYING SHALL BE EXEMPT FROM PROSECUTION OR PUNISHMENT FOR
PERJURY COMMITTED IN SO TESTIFYING." 

FN5  THE PETITIONER AND HIS COUNSEL WERE ADVISED IN ADVANCE WHAT THE
PROCEDURE WAS TO BE.  "MR. WACHTELL:  THE GOVERNMENT'S UNDERSTANDING OF
THE NATURE OF THIS PROCEEDING IS THIS:  AT THIS POINT THE GRAND JURY IS
STILL MERELY REQUESTING THE ASSISTANCE OF THE COURT.  WHAT THE
GOVERNMENT WOULD REQUEST IS THAT IF IT APPEARS, AS WILL BE SHOWN BY THE
TESTIMONY OF THE GRAND JURY REPORTER, THAT THE WITNESS IS PERSISTING IN
HIS REFUSAL, THE GOVERNMENT WILL THEN REQUEST OF THIS COURT THAT THE
COURT ITSELF, IN THE PRESENCE OF THE GRAND JURY, WILL PUT THE SIX
QUESTIONS TO THE WITNESS AND ASK HIM, FIRST, WHETHER HE IS WILLING TO
ANSWER THEM NOW, AND, SECOND, WOULD HE ANSWER THEM IF HE WERE SENT BACK
TO THE GRAND JURY AGAIN.  AND IF THE WITNESS AGAIN REFUSES HERE AND NOW
IN THE PHYSICAL PRESENCE OF THE COURT OR PERSISTS IN HIS REFUSAL TO
ANSWER, THAT THE WITNESS BE HELD IN SUMMARY CONTEMPT UNDER RULE 42(A)
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 

"THE COURT:  THAT IS WHAT I PROPOSE." 

FN6  18 U.S.C. SEC. 401(1). 

FN7  18 U.S.C. SEC. 401.  POWER OF COURT: 

"A COURT OF THE UNITED STATES SHALL HAVE POWER TO PUNISH BY FINE OR
IMPRISONMENT, AT ITS DISCRETION, SUCH CONTEMPT OF ITS AUTHORITY, AND
NONE OTHER, AS: 

 *         *         *        *          * 

"(3) DISOBEDIENCE OR RESISTANCE TO ITS LAWFUL WRIT, PROCESS, ORDER,
RULE, DECREE, OR COMMAND." 

FN8  RULE 42.  CRIMINAL CONTEMPT: 

"(A) SUMMARY DISPOSITION.  A CRIMINAL CONTEMPT MAY BE PUNISHED
SUMMARILY IF THE JUDGE CERTIFIES THAT HE SAW OR HEARD THE CONDUCT
CONSTITUTING THE CONTEMPT AND THAT IT WAS COMMITTED IN THE ACTUAL
PRESENCE OF THE COURT.  THE ORDER OF CONTEMPT SHALL RECITE THE FACTS
AND SHALL BE SIGNED BY THE JUDGE AND ENTERED OF RECORD." 

FN9  RULE 42.  CRIMINAL CONTEMPT:  "(B) DISPOSITION UPON NOTICE AND
HEARING.  A CRIMINAL CONTEMPT EXCEPT AS PROVIDED IN SUBDIVISION (A) OF
THIS RULE SHALL BE PROSECUTED ON NOTICE.  THE NOTICE SHALL STATE THE
TIME AND PLACE OR HEARING, ALLOWING A REASONABLE TIME FOR THE
PREPARATION OF THE DEFENSE, AND SHALL STATE THE ESSENTIAL FACTS
CONSTITUTING THE CRIMINAL CONTEMPT CHARGED AND DESCRIBE IT AS SUCH. 
THE NOTICE SHALL BE GIVEN ORALLY BY THE JUDGE IN OPEN COURT IN THE
PRESENCE OF THE DEFENDANT OR, ON APPLICATION OF THE UNITED STATES
ATTORNEY OR OF AN ATTORNEY APPOINTED BY THE COURT FOR THAT PURPOSE, BY
AN ORDER TO SHOW CAUSE OR AN ORDER TO ARREST.  THE DEFENDANT IS
ENTITLED TO A TRIAL BY JURY IN ANY CASE IN WHICH AN ACT OF CONGRESS SO
PROVIDES.  HE IS ENTITLED TO ADMISSION TO BAIL AS PROVIDED IN THESE
RULES.  IF THE CONTEMPT CHARGED INVOLVES DISRESPECT TO OR CRITICISM OF
A JUDGE, THAT JUDGE IS DISQUALIFIED FROM PRESIDING AT THE TRIAL OR
HEARING EXCEPT WITH THE DEFENDANT'S CONSENT.  UPON A VERDICT OR FINDING
OF GUILT THE COURT SHALL ENTER AN ORDER FIXING THE PUNISHMENT." 

FN10  THE PETITIONER'S CONTENTION THAT THE COURT'S VERY ACT OF
DIRECTING HIM TO ANSWER SOMEHOW VIOLATED HIS PRIVILEGE AGAINST SELF
INCRIMINATION IS THUS CLEARLY INCORRECT. 

FN11  WE DO NOT DISCUSS THE PETITIONER'S CLAIM, FIRST ADVANCED IN THE
COURT OF APPEALS, THAT THE DISTRICT COURT PROCEEDING WAS CONDUCTED IN
"SECRECY," BECAUSE THE RECORD DOES NOT SHOW THIS TO BE THE FACT. 

FN12  SACHER V. UNITED STATES, 343 U.S. 1, 7; NOTES OF ADVISORY
COMMITTEE ON RULES, 18 U.S.C.A., RULE 42. 

FN13  ROGERS V. UNITED STATES, 340 U.S. 367; WILSON V. UNITED STATES,
221 U.S. 361, 369, SEMBLE; HALE V. HENKEL, 201 U.S. 43, 46; UNITED
STATES V. CURCIO, 234 F.2D 470, 473 (C.A.2D CIR.), REV'D ON OTHER
GROUNDS, 354 U.S. 118 (1957); LOPIPARO V. UNITED STATES, 216 F.2D 87
(C.A. 8TH CIR.); UNITED STATES V. WEINBERG, 65 F.2D 394, 396 (C.A.2D
CIR.).  FOR THE EARLIER PRACTICE AT COMMON LAW, SEE PEOPLE EX REL.
PHELPS V. FANCHER, 4 THOMPSON & COOK (N.Y. 1874) 467; PEOPLE EX REL.
HACKLEY V. KELLY, 24 N.Y. 74, 79-80 (1861); IN RE BELLE HARRIS, 4 UTAH
5, 8-9, 5 P. 129, 130-132 (1884); HEARD V. PIERCE, 8 CUSH.  338, 342
345 (MASS. 1851). 

FN14  IN ROGERS V. UNITED STATES, 340 U.S. 367, THE PETITIONER
ATTACKED THE VALIDITY OF THE SUMMARY PROCEDURE BY WHICH SHE WAS FOUND
GUILTY OF CRIMINAL CONTEMPT FOR REFUSING TO TESTIFY BEFORE A GRAND
JURY.  (SEE PETITIONER'S BRIEF NOS. 20, 21, 22, O.T., 1950, PP. 54-58;
BRIEF OF UNITED STATES, IBID., PP. 51-53.)  NEITHER THE OPINION OF THE
COURT NOR THE DISSENTING OPINION DISCUSSED THE QUESTION.  A PETITION
FOR REHEARING WHICH COMPLAINED OF THE COURT'S SILENCE ON THIS ISSUE
(PETITION FOR REHEARING NO. 20, O.T., 1950, PP. 6-10) WAS DENIED.  341
U.S. 912. 

FN15  THE PETITIONER POINTS OUT THAT THE SENTENCE IMPOSED WAS IN
EXCESS OF THE MAXIMUM PUNISHMENT AUTHORIZED BY STATUTE FOR SUBSTANTIVE
VIOLATIONS OF THE MOTOR CARRIER ACT.  A MORE RELEVANT COMPARISON MIGHT
BE MADE TO THE STATUTORY OFFENSES INVOLVING OBSTRUCTION OF THE
ADMINISTRATION OF JUSTICE, PUNISHABLE BY A MAXIMUM OF FIVE YEARS'
IMPRISONMENT.  18 U.S.C. SEC. 1503.  THE RECORD SHOWS THAT THE GRAND
JURY WAS INVESTIGATING SUSPECTED VIOLATIONS OF THE MOTOR CARRIER ACT
NOT BY THE PETITIONER, BUT BY OTHERS.  THE DISTRICT COURT WAS INFORMED
THAT THE TESTIMONY THE GRAND JURY "DESIRED TO ELICIT FROM THIS WITNESS
...  IS OF THE VERY GREATEST IMPORTANCE, AND THE WITNESS'S REFUSAL TO
ANSWER IS A VERY GREAT STUMBLING BLOCK TO THIS INVESTIGATION AND TO ALL
THESE INVESTIGATIONS."  IF WITHIN 60 DAYS OF THE TERMINATION OF THESE
PROCEEDINGS THE PETITIONER INDICATES HIS WILLINGNESS TO TESTIFY, THE
DISTRICT COURT WILL NO DOUBT CONSIDER THAT FACT IN PASSING UPON A
MOTION FOR REDUCTION OF HIS SENTENCE UNDER RULE 35 OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

I FIND MYSELF IN DISAGREEMENT WITH THE MAJORITY OPINION, NOT BECAUSE
OF ITS INTERPRETATION OF THE SCOPE OF THE IMMUNITY PROVISIONS HERE IN
QUESTION, BUT BECAUSE IT SANCTIONS THE PROCEDURE USED BELOW TO CONVICT
PETITIONER SUMMARILY OF CRIMINAL CONTEMPT AND TO SENTENCE HIM TO 15
MONTHS' IMPRISONMENT UNDER RULE 42(A) WHEN THE PROCEEDINGS SHOULD HAVE
BEEN IN ACCORDANCE WITH RULE 42(B).  THE DENIAL OF EVEN THE MINIMAL
PROTECTIONS ACCORDED BY RULE 42(B) DEPRIVED PETITIONER OF AN
OPPORTUNITY TO PREPARE A LEGAL DEFENSE, OR TO DEMONSTRATE EXTENUATING
CIRCUMSTANCES, (FN1) AND SATISFIED NEITHER THE PLAIN INTENT OF RULE 42
NOR THE PRINCIPLES OF FAIR PLAY. 

RULE 42(B) PRESCRIBES THAT CRIMINAL CONTEMPTS "SHALL" BE PROSECUTED
ON NOTICE ALLOWING A "REASONABLE TIME FOR THE PREPARATION OF THE
DEFENSE" AND OTHER PROTECTIONS, EXCEPT IN THOSE INSTANCES WHEREIN RULE
42(A) PROVIDES THAT CONTEMPTS COMMITTED IN THE PRESENCE OF THE COURT
"MAY" BE PUNISHED SUMMARILY.  THIS DEMONSTRATES THAT THE GENERAL MODE
OF PROCEDURE WAS TO BE THAT PRESCRIBED BY RULE 42(B).  ON THE OTHER
HAND, RULE 42(A) COVERS ONLY SPECIFIC SITUATIONS AND EVEN THEN THE
CONTEMPT PROCEDURE NEED NOT BE SUMMARY.  IN THE LIGHT OF THE CONCERN
LONG DEMONSTRATED BY BOTH CONGRESS (FN2) AND THIS COURT (FN3) OVER THE
POSSIBLE ABUSE OF THE CONTEMPT POWER, IT IS OBVIOUS THAT RULE 42(A) WAS
RESERVED FOR EXCEPTIONAL CIRCUMSTANCES.  THESE MIGHT INCLUDE
THREATENING THE JUDGE, UNITED STATES V. HALL, 176 F.2D 163, OR OTHER
ACTS DISRUPTING COURT PROCEEDINGS AND OBSTRUCTING THE ADMINISTRATION OF
THE COURT'S BUSINESS.  UNITED STATES V. LANDES, 97 F.2D 378. 

RULE 42(A) WAS NOT INSERTED IN THE RULES IN ORDER TO EASE THE
DIFFICULTIES OF PROSECUTING CONTEMPTS.  IT WAS NOT MEANT TO AUTHORIZE
THE PRACTICE OF HAVING GOVERNMENT PROSECUTORS FORCE PERSONS WHO HAD
ALREADY COMMITTED CONTEMPTS OUTSIDE OF THE PRESENCE OF THE COURT TO
REPEAT THE ACTION BEFORE THE COURT AND THUS SUBJECT THEMSELVES TO
DEPRIVATION OF THEIR RIGHTS UNDER RULE 42(B).   GIVEN THE PURPOSE OF
RULE 42(A) WITH ITS ADMITTEDLY PRECIPITOUS CHARACTER AND EXTREMELY
HARSH CONSEQUENCES, THIS COURT SHOULD NOT COUNTENANCE A PROCEDURE
WHEREBY A CONTEMPT ALREADY COMPLETED OUT OF THE COURT'S PRESENCE MAY BE
REPRODUCED IN A COMMAND PERFORMANCE BEFORE THE COURT TO JUSTIFY SUMMARY
DISPOSITION.  THAT IS NOT TO SAY THE GOVERNMENT COULD NOT PROPERLY
BRING THE PETITIONER BEFORE THE COURT A SECOND TIME.  OF COURSE, BOTH
THE GOVERNMENT AND THE GRAND JURY COULD USE SUCH ADDITIONAL PERSUASION
TO OBTAIN ANSWERS TO THE QUESTIONS.  BUT THAT SECOND REFUSAL SHOULD NOT
CONSTITUTE A SECOND CONTEMPT.  NOR SHOULD THIS PROCEDURE ALONE JUSTIFY
IMPOSING A MORE SEVERE PENALTY THAN WOULD HAVE BEEN APPROPRIATE FOR
CONTEMPT OF THE GRAND JURY.  (FN4) 

AFTER PETITIONER REFUSED TO ANSWER THE QUESTIONS THE JUDGE MIGHT VERY
PROPERLY HAVE SUMMARILY COMMITTED THE PETITIONER TO JAIL FOR CIVIL
CONTEMPT UNTIL HE ANSWERED THE QUESTIONS.  ORIEL V. RUSSELL, 278 U.S.
358, 363.  SEE GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 442. 
THIS IS NOT DISPUTED.  IN SUCH A PROCEEDING THE RECALCITRANT WITNESS
ALTHOUGH SUMMARILY COMMITTED IS SAID TO CARRY THE KEYS TO THE JAIL IN
HIS OWN POCKET.  SEE IN RE NEVITT, 117 F. 448, 461.  OR, UPON
PRESENTMENT, THE JUDGE MIGHT HAVE GIVEN NOTICE IN OPEN COURT OF A
CRIMINAL CONTEMPT PROCEEDING TO BE COMMENCED UNDER THE PROCEDURES SET
FORTH IN RULE 42(B), AND THE GOVERNMENT SO CONCEDES.  THAT IS THE
NORMAL MANNER OF PROCEEDING IN THESE CASES.  SEE WONG GIM YING V.
UNITES STATES, 98 U.S. APP.  D.C. 23, 27, 231 F.2D 776, 780; CARLSON V.
UNITED STATES, 209 F.2D 209, 216.    BUT THE GOVERNMENT WAS NOT
SATISFIED WITH SUCH A PROCEDURE.  ON APRIL 8, THOUGH OSTENSIBLY SEEKING
THE COURT'S ASSISTANCE IN OBTAINING THE ANSWERS TO THE QUESTIONS, THE
PROSECUTOR NEVER EVEN FAINTLY SUGGESTED ANY COERCIVE REMEDY.  (FN5)
RATHER, FROM THE OUTSET HE SPOKE IN TERMS ASSUMING THAT PETITIONER
WOULD CONTINUE HIS REFUSAL TO TESTIFY AND MADE KNOWN TO THE COURT THAT
HE WOULD SEEK A SUMMARY DISPOSITION UNDER RULE 42(A) IMMEDIATELY. 
AFTER THE FINDING OF CONTEMPT, HE ASKED THE JUDGE TO GIVE PETITIONER A
SUBSTANTIAL SENTENCE AND THE JUDGE COMPLIED - WITH 15 MONTHS IN THE
PENITENTIARY.  HE THEN ASKED THE JUDGE TO OMIT A PURGE CLAUSE WHICH THE
JUDGE DID.  (FN6) THEREAFTER HE URGED THE JUDGE TO DENY BAIL AND THE
JUDGE PROMPTLY ACCEDED TO THAT REQUEST. 

BEYOND A SHORT STATEMENT, NOTHING WAS OFFERED BY THE ASSISTANT UNITED
STATES ATTORNEY TO SHOW THE SERIOUSNESS OF THE CONTEMPT.  (FN7)  THE
OFFENSE THE GRAND JURY WAS INVESTIGATING WAS PUNISHABLE BY NO MORE THAN
A FINE.  71 STAT. 352, 49 U.S.C. (SUPP. V) SEC. 322(A). 

I DO NOT ASSERT THAT THE CONTEMPT COULD NOT BE MORE SERIOUS THAN THE
OFFENSE UNDER INVESTIGATION, (FN8) BUT WHERE THERE IS A DISPARITY SUCH
AS EXISTS IN THIS CASE, A HEARING SHOULD BE HELD TO DEMONSTRATE,
SUBJECT TO REBUTTAL, AT LEAST THE PURPOSE AND SIGNIFICANCE OF THE GRAND
JURY INVESTIGATION, THE WITNESS' RELATIONSHIP TO THE SUBJECT MATTER
UNDER INVESTIGATION, AND THE EFFECT OF THE WITNESS' RECALCITRANCE ON
THE FUTURE OF THE INVESTIGATION. 

THE COURT'S OPINION OBSERVES THAT THE JUDGE MAY REDUCE THE SENTENCE
WITHIN 60 DAYS OF THE TERMINATION OF THESE PROCEEDINGS UNDER RULE 35. 
BUT THAT POWER HAS BEEN HELD TO BE DISCRETIONARY, FLORES V. UNITED
STATES, 238 F.2D 758; MILLER V. UNITED STATES, 224 F.2D 561, AND DOES
NOT IN ANY SENSE MAKE A TERM IN THE PENITENTIARY COMPARABLE TO A JAIL
COMMITMENT FOR CIVIL CONTEMPT.  EXERCISE OF RULE 35 POWER DOES NOT MAKE
PETITIONER ANY LESS A CONVICTED CRIMINAL.  ALSO, THE FAILURE TO INVOKE
CIVIL CONTEMPT INDICATES THAT THE JUDGE INTENDED THE SENTENCE TO BE
PUNITIVE AND NOT COERCIVE.  (FN9) 

IT IS ASSERTED THAT ONLY A LEGAL ISSUE IS INVOLVED HERE - THE SCOPE
OF IMMUNITY - SO THAT THERE WAS NO NEED TO GIVE PETITIONER TIME TO
PREPARE A DEFENSE UNDER RULE 42(B).  (FN10)  BUT THIS OVERLOOKS THE
RIGHT OF PETITIONER TO PRESENT EVIDENCE IN EXTENUATION AND TO SHOW WHAT
OTHER COURTS HAD DONE IN SIMILAR CIRCUMSTANCES.  THIS ARGUMENT ALSO
NEGLECTS THE IMPORTANCE OF AFFORDING THE JUDGE AN OPPORTUNITY FOR
REFLECTION.  A JUDGE SHOULD NOT BE FORCED - OR GOADED - INTO SPUR-OF
THE-MOMENT DECISIONS WHERE THE IMPRISONMENT OF A PERSON IS IN THE
BALANCE.  THERE IS NO INDICATION THAT THE DISTRICT JUDGE EXPECTED THE
GRAND JURY TO RETURN ON THE AFTERNOON OF APRIL 8.  YET, WITHIN A SHORT
TIME AFTER ITS RETURN, THE JUDGE HAD CONVICTED THE PETITIONER AND
SENTENCED HIM TO 15 MONTHS IN PRISON FOR HIS CONDUCT AND HAD DENIED
BAIL.  NEITHER COUNSEL DISCUSSED THE SENTENCES GIVEN IN COMPARABLE
CASES AND, FROM THE SEVERITY OF THE SENTENCE HERE, IT IS CLEAR THAT THE
JUDGE WAS NOT ADVISED HOW OTHER JUDGES WERE TREATING SIMILAR OFFENSES. 
(FN11)  THERE IS NOT STATUTORY LIMIT FOR THE LENGTH OF SENTENCE IN
CONTEMPTS OF THIS CHARACTER.  APPARENTLY, THE 15-MONTH SENTENCE IN THIS
CASE IS THE LONGEST CONTEMPT SENTENCE EVER SUSTAINED BY ANY APPELLATE
COURT IN THE FEDERAL SYSTEM FOR A REFUSAL TO ANSWER QUESTIONS OF A
COURT OR GRAND JURY.  (FN12)  EVEN A SHORT DELAY MIGHT HAVE GIVEN THE
JUDGE ENOUGH TIME FOR RESEARCH TO ESTABLISH THAT THE GOVERNMENT'S
REASON FOR SEEKING OMISSION OF THE PURGE CLAUSE WAS GROUNDLESS.  (FN13)
ALSO, THE JUDGE TOOK NO TIME TO CONSIDER THE BAIL QUESTION.  AFTER A
MINIMUM OF ARGUMENT BY COUNSEL, THE JUDGE DENIED BAIL PENDING APPEAL. 
(FN14) 

SHORTCUTS IN CRIMINAL PROCEDURE ARE ALWAYS CONFUSING (FN15) AND
DANGEROUS, BUT THEY ARE PARTICULARLY SO HERE, BECAUSE IF SANCTIONED BY
THIS COURT, PROSECUTORS THROUGHOUT THE FEDERAL SYSTEM WILL BE TEMPTED
TO DO ALL THEY CAN TO MAKE RULE 42(B) A DEAD LETTER.  THE CONTEMPT
POWER TRADITIONALLY HAS BEEN UTILIZED SPARINGLY AND ONLY WHEN NECESSARY
TO UPHOLD THE DIGNITY OF THE COURTS.  EARLY IN OUR HISTORY, THE LIMITS
OF THE POWER TO PUNISH FOR CONTEMPT WERE SAID TO BE "THE LEAST POSSIBLE
POWER ADEQUATE TO THE END PROPOSED."  ANDERSON V. DUNN, 6 WHEAT.  204,
231.  AS MR. JUSTICE FRANKFURTER HAS SAID IN SACHER V. UNITED STATES,
343 U.S. 1, 24-25 (DISSENTING OPINION): 

"TO DISPENSE WITH INDICTMENT BY GRAND JURY AND TRIAL BY A JURY OF
TWELVE DOES NOT MEAN THE RIGHT TO DISREGARD REASON AND FAIRNESS. 
REASON AND FAIRNESS DEMAND, EVEN IN PUNISHING CONTEMPT, PROCEDURAL
SAFEGUARDS WITHIN WHICH THE NEEDS FOR THE EFFECTIVE ADMINISTRATION OF
JUSTICE CAN BE AMPLY SATISFIED WHILE AT THE SAME TIME THE REACH OF SO
DRASTIC A POWER IS KEPT WITHIN LIMITS THAT WILL MINIMIZE ABUSE.  WHILE
EXPERIENCE HAS SHOWN THE NECESSITY OF RECOGNIZING THAT COURTS POSSESS
THIS AUTHORITY, EXPERIENCE HAS ALSO PROVEN THAT RESTRICTIONS
APPROPRIATE TO THE PURPOSES OF THE POWER MUST FENCE IN ITS EXERCISE. 
HENCE CONGRESS, BY LEGISLATION DATING BACK MORE THAN A HUNDRED YEARS,
HAS PUT GEOGRAPHIC AND PROCEDURAL RESTRICTIONS UPON THE POWER OF THE
UNITED STATES COURTS TO PUNISH SUMMARILY FOR CONTEMPT ...  . 

"THE COURT DID SO FOR A REASON DEEPLY IMBEDDED IN OUR LEGAL SYSTEM
AND BY THAT VERY FACT TOO OFTEN NEGLECTED.  TIMES OF TENSION, WHICH ARE
USUALLY PERIODS OF WAR AND THEIR AFTERMATH, BRING IT TO THE SURFACE. 
REFLECTING NO DOUBT THEIR CONCERN OVER UNTOWARD EVENTS IN LAW
ENFORCEMENT ARISING OUT OF THE FIRST WORLD WAR, MR. JUSTICE BRANDEIS
AND MR. JUSTICE HOLMES GAVE QUIET WARNING WHEN THEY OBSERVED THAT 'IN
THE DEVELOPMENT OF OUR LIBERTY INSISTENCE UPON PROCEDURAL REGULARITY
HAS BEEN A LARGE FACTOR.'  BURDEAU V. MCDOWELL, 256 U.S. 465, 477.  IT
IS NOT FOR NOTHING THAT MOST OF THE PROVISIONS OF OUR BILL OF RIGHTS
ARE CONCERNED WITH MATTERS OF PROCEDURE. 

"THAT IS WHAT THIS CASE IS ABOUT - 'PROCEDURAL REGULARITY.'  NOT
WHETHER THESE PETITIONERS HAVE BEEN GUILTY OF CONDUCT PROFESSIONALLY
INEXCUSABLE, BUT WHAT TRIBUNAL SHOULD SIT IN JUDGMENT; NOT WHETHER THEY
SHOULD BE PUNISHED, BUT WHO SHOULD METE OUT THE APPROPRIATE PUNISHMENT;
NOT WHETHER A FEDERAL COURT HAS AUTHORITY TO PREVENT ITS PROCEEDINGS
FROM BEING SUBVERTED, BUT HOW THAT AUTHORITY SHOULD BE EXERCISED SO AS
TO ASSURE THE RECTITUDE OF LEGAL PROCEEDINGS AND AT THE SAME TIME NOT
DETRACT FROM THE AUTHORITY OF LAW ITSELF." 

AND, SHORTLY THEREAFTER, THE COURT ADOPTED THIS VIEWPOINT.  SEE
OFFUTT V. UNITED STATES, 348 U.S. 11.  THE IMPORTANCE OF PROCEDURAL
REGULARITY OFTEN LIES IN ADVISING THE DEFENDANT OF THE PROCEDURE HE
MUST EXPECT AND GIVING HIM TIME TO PREPARE.  ALSO, JUDICIAL REFLECTION
IS AN INVALUABLE BY-PRODUCT OF PROCEDURES THAT ARE DESIGNED TO BE NO
MORE PRECIPITOUS THAN NECESSARY TO MEET THE DEMANDS OF THE SITUATION. 
HERE, THERE WAS NO DEMONSTRATED NEED FOR HASTE AND NO RESULTANT BENEFIT
(EXCEPT IN SAVING THE UNITED STATES ATTORNEY'S OFFICE THE TIME AND
EFFORT OF PREPARING FOR A HEARING ON NOTICE).  THERE HAD ALREADY BEEN A
FULLY COMMITTED CONTEMPT BEFORE THE GRAND JURY WHICH MIGHT HAVE BEEN
PROSECUTED WITHIN A SHORT TIME GIVING PETITIONER ONLY "A REASONABLE
TIME FOR THE PREPARATION OF THE DEFENSE."  THIS COURT WITH ITS
SUPERVISORY POWER OVER THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE
FEDERAL COURTS, MCNABB V. UNITED STATES, 318 U.S. 332, 340, SHOULD NOT
PERMIT THE UTILIZATION OF SUMMARY CONTEMPT PROCEDURES WHERE IMMEDIATE
ACTION IS NOT NECESSARY FOR THE PRESERVATION OF THE RESPECT AND DIGNITY
OF THE FEDERAL COURTS.  IMPROVIDENT USE OF SUMMARY PROCEDURES ONLY
WEAKENS THAT RESPECT.  (FN16) 

IN THE LIGHT OF THE SENTENCES GIVEN IN THIS TYPE OF CASE, I DOUBT IF
ANY JUDGE IN THE FEDERAL SYSTEM WOULD SUMMARILY SEND A WITNESS TO THE
PENITENTIARY FOR 15 MONTHS FOR MERELY REFUSING TO TESTIFY IN A GRAND
JURY INVESTIGATION OF WHETHER A TRUCKER IS OPERATING WITHOUT AN ICC
CERTIFICATE.  IT IS QUITE OBVIOUS THAT MUCH OF THE SENTENCE WAS FOR
SOME REASON COLLATERAL TO THAT INVESTIGATION.  IT IS NOT SUFFICIENT FOR
THE PURPOSE OF INCREASING PUNISHMENT TO ACT ON THE SUSPICION THAT THE
REFUSAL OF THE WITNESS TO TESTIFY MAY REDOUND TO THE INTEREST OF A
RACKETEER, AND ON THAT BASIS DENY HIM THE PROTECTIONS THAT CONGRESS HAS
SEEN FIT TO ACCORD TO ALL WITNESSES BEFORE GRAND JURIES.  IF SUCH
FACTORS ARE TO PLAY A PART IN THE SENTENCE THE WITNESS IS ENTITLED TO A
HEARING ON NOTICE. 

UNFORTUNATELY, THE FAILURE TO ADHERE TO PROCEDURAL REGULARITY MAY BE
GLOSSED OVER IN THE INVESTIGATION OF MATTERS OF BURNING PUBLIC
INTEREST, BUT IT SHOULD BE REMEMBERED THAT THE DEPRIVATION OF THE
RIGHTS OF A WITNESS IN SUCH AN INVESTIGATION MUST APPLY AS A PRECEDENT
TO PEOPLE IN ALL WALKS OF LIFE, BOTH GOOD AND BAD.  I SUGGEST THAT THE
FULL IMPORT OF THE DECISION IN THIS CASE WILL NOT BE RECOGNIZED UNTIL
IT IS APPLIED AT SOME FUTURE TIME IN OTHER TYPES OF INVESTIGATIONS AND
TO OTHER PEOPLE. 

I WOULD REVERSE THE CONVICTION. 

FN1  THE PROSECUTOR INDICATED TO THE COURT THAT THE INQUIRY, THOUGH
DIRECTED TOWARD MINOR VIOLATIONS OF THE INTERSTATE COMMERCE ACT, WAS
REALLY PART OF AN EFFORT TO DISCOVER FACTS CONCERNING NOTORIOUS
GANGSTERS SUSPECTED OF COMPLICITY IN THE VICTOR RIESEL ACID-THROWING
INCIDENT AND GENERAL RACKETEERING IN THE SOUTHERN DISTRICT OF NEW
YORK.  IN VIEW OF THE TOTAL ABSENCE OF ANY INTIMATION THAT PETITIONER
HAD VIOLATED THE INTERSTATE COMMERCE ACT OR WAS HIMSELF GUILTY OF
CRIMINAL CONDUCT, THE ACTUAL BASIS FOR HIS REFUSAL TO TESTIFY MAY WELL
HAVE BEEN FEAR OF GANGSTER REPRISALS, A NOT UNREASONABLE FEAR IN SUCH
CIRCUMSTANCES.  REGARDLESS OF THE LEGAL SIGNIFICANCE OF SUCH A DEFENSE,
SEE WIDGER V. UNITED STATES, 244 F.2D 103, A HEARING WOULD HAVE
PROVIDED AN OPPORTUNITY FOR PRESENTATION OF SUCH FACTS TO THE JUDGE AND
MIGHT WELL HAVE AFFECTED THE LENGTH OF SENTENCE. 

FN2  SEE, GENERALLY, FRANKFURTER AND LANDIS, POWER OF CONGRESS OVER
PROCEDURE IN CRIMINAL CONTEMPTS IN "INFERIOR" FEDERAL COURTS - A STUDY
IN SEPARATION OF POWERS, 37 HARV. L. REV. 1010. 

FN3  SEE, E.G., CAMMER V. UNITED STATES, 350 U.S. 399; OFFUTT V.
UNITED STATES, 348 U.S. 11; NYE V. UNITED STATES, 313 U.S. 33; COOKE V.
UNITED STATES, 267 U.S. 517; EX PARTE TERRY, 128 U.S. 289; ANDERSON V.
DUNN, 6 WHEAT.  204. 

FN4  ALTHOUGH THE DISTRICT JUDGE ASKED PETITIONER OTHER QUESTIONS
DURING THIS SECOND PROCEEDING IN THE COURTROOM, THE JUDGE'S CERTIFICATE
MAKES CLEAR THAT THE CONTEMPT FOUND WAS FOR REFUSAL TO ANSWER THE SIX
SUBSTANTIVE QUESTIONS AND NOT FOR ANY OTHER ANSWERS.  CF. CARLSON V.
UNITED STATES, 209 F.2D 209, 216. 

IN PRACTICE, CONTEMPTS BEFORE THE COURT ARE PUNISHED NO MORE SEVERELY
THAN THOSE BEFORE THE GRAND JURY.  SEE N. 11, INFRA. 

FN5  SEE THE STATEMENT IN N. 5 OF THE COURT'S OPINION.  BUT SEE N. 9,
INFRA. 

FN6  SEE N. 13, INFRA. 

FN7  THE ONLY EXPRESSION BY THE ASSISTANT UNITED STATES ATTORNEY
ABOUT THE CONNECTION OF PETITIONER WITH THE GRAND JURY INVESTIGATION
THEN IN PROGRESS WAS THE FOLLOWING STATEMENT MADE DURING DISCUSSION OF
THE PUNISHMENT: 

"THE INFORMATION THAT IT IS DESIRED TO ELICIT FROM THIS WITNESS, I
REPRESENT TO THE COURT, IS OF THE VERY GREATEST IMPORTANCE, AND THE
WITNESS' REFUSAL TO ANSWER IS A VERY GREAT STUMBLING BLOCK TO THIS
INVESTIGATION AND TO ALL THESE INVESTIGATIONS." 

FN8  COMPARING THIS SENTENCE WITH THAT POSSIBLE UNDER THE PENALTY FOR
OBSTRUCTING THE ADMINISTRATION OF JUSTICE, 18 U.S.C. SEC. 1503, IS NOT
MEANINGFUL BECAUSE IN SUCH A PROSECUTION PETITIONER WOULD HAVE BEEN
ENTITLED TO ALL OF THE SAFEGUARDS NORMALLY AFFORDED CRIMINAL
DEFENDANTS, INCLUDING, OF COURSE, THE VERY BASIC PROTECTION OF TRIAL BY
JURY. 

FN9  THIS WOULD SEEM TRUE DESPITE THE CONFUSION EXISTENT IN THE
COURTROOM JUST BEFORE THE SENTENCING WHEREIN THE PROSECUTOR ASKED THE
JUDGE FOR A "SUBSTANTIAL SENTENCE, AND THAT IS DONE NOT SO MUCH FOR ANY
PUNITIVE EFFECT AS IT WOULD BE FOR THE COERCIVE EFFECT OF THE
SENTENCE."  THIS WAS STATED JUST AFTER THE PROSECUTOR HAD REQUESTED THE
JUDGE TO OMIT A PURGE CLAUSE] 

FN10  ALTHOUGH THIS COURT DISAGREES WITH PETITIONER'S ARGUMENT
CONCERNING THE BREADTH AND APPLICABILITY OF THE IMMUNITY PROVISIONS IN
QUESTION, THE COURT OF APPEALS DID GRANT BAIL AND ITS OPINION
RECOGNIZED THAT THE POINT HAD SOME "NOVEL ASPECTS."  247 F.2D 332,
338.  THUS, WHEN CONSIDERING THE ACTION TAKEN BY THE DISTRICT JUDGE, IT
MUST BE RECOGNIZED THAT THE QUESTION OF IMMUNITY WAS NOT FRIVOLOUS. 

FN11  THE FOLLOWING CASES INVOLVING CONTEMPT OF THE GRAND JURY APPEAR
TO BE THE ONLY APPELLATE DECISIONS IN THE SECOND CIRCUIT:  O'CONNELL V.
UNITED STATES, 40 F.2D 201 (THREE MONTHS WITH PURGE CLAUSE), CERT.
GRANTED 281 U.S. 716, CERT. DISMISSED ON STIPULATION OF COUNSEL 296
U.S. 667.  LANG V. UNITED STATES, 55 F.2D 922 (90 DAYS WITH PURGE
CLAUSE), CERT. GRANTED 285 U.S. 533, CERT. DISMISSED 286 U.S. 523. 
UNITED STATES V. WEINBERG, 65 F.2D 394 (60 DAYS); UNITED STATES V.
ZWILLMAN, 108 F.2D 802 (SIX-MONTH SENTENCE REVERSED); UNITED STATES V.
WEISMAN, 111 F.2D 260 (SIX-MONTH SENTENCE REVERSED); UNITED STATES V.
ST. PIERRE, 132 F.2D 837 (FIVE-MONTH SENTENCE), CERT. DISMISSED AS MOOT
319 U.S. 41.  THE FOLLOWING CASES IN THE SECOND CIRCUIT DEFINITELY
ADOPTED THE PROCEDURE HERE IN QUESTION:  UNITED STATES V. TROCK, 232
F.2D 839 (FOUR-MONTH SENTENCE WITH PURGE CLAUSE), REVERSED 351 U.S.
976; UNITED STATES V. CURCIO, 234 F.2D 470 (SIX-MONTH SENTENCE WITH
PURGE CLAUSE) REVERSED 354 U.S. 118; UNITED STATES V. GORDON, 236 F.2D
916 (SIX-MONTH SENTENCE CONTAINING A PURGE CLAUSE REVERSED); UNITED
STATES V. COURTNEY, 236 F.2D 921 (THREE-MONTH SENTENCE REVERSED);
UNITED STATES V. MIRANTI, 253 F.2D 135 (TWO 5-YEAR SENTENCES REVERSED
WITH A COMMENT ON THE DISTRICT JUDGE'S ANGER AT THE WITNESSES). 
CASES FROM OTHER CIRCUITS INVOLVING GRAND JURY CONTEMPTS:  UNITED
STATES V. CATON, 25 FED. CAS. NO. 14,758 ($5 FINE); IN RE COUNSELMAN,
44 F. 268 ($500 FINE AND CIVIL CONTEMPT) REVERSED SUB NOM. COUNSELMAN
V. HITCHCOCK, 142 U.S. 547; ELWELL V. UNITED STATES, 275 F. 775 ($500
FINE AND CIVIL CONTEMPT); CAMAROTA V. UNITED STATES, 111 F.2D 243 (SIX
MONTHS); UNITED STATES V. HOFFMAN, 185 F.2D 617 (FIVE MONTHS), REVERSED
341 U.S. 479; HEALEY V. UNITED STATES, 186 F.2D 164 (FOUR SENTENCES OF
ONE YEAR OR MORE AND ONE $10 FINE REVERSED); UNITED STATES V.
GREENBERG, 187 F.2D 35 (FIVE-MONTH SENTENCE), REVERSED 341 U.S. 944;
CARLSON V. UNITED STATES, 209 F.2D 209 (18-MONTH SENTENCE VACATED);
HOOLEY V. UNITED STATES, 209 F.2D 219 (NINE-MONTH SENTENCE VACATED);
O'KEEFE V. UNITED STATES, 209 F.2D 223 (NINE-MONTH SENTENCE VACATED);
MAFFIE V. UNITED STATES, 209 F.2D 225 (ONE-YEAR SENTENCE VACATED); DALY
V. UNITED STATES, 209 F.2D 232 (ONE-YEAR SENTENCE VACATED); HOOLEY V.
UNITED STATES, 209 F.2D 234 (ONE-YEAR SENTENCE VACATED). 

THE FOLLOWING CASES INVOLVE CONTEMPTS FOR REFUSALS TO ANSWER IN THE
COURTROOM:  ROGERS V. UNITED STATES, 179 F.2D 559, AFF'D 340 U.S. 367
(FOUR-MONTH SENTENCE FOR REFUSAL BEFORE COURT TO TESTIFY BEFORE GRAND
JURY); GREEN V. UNITED STATES, 193 F.2D 111 (C.A.2D CIR.) (SIX-MONTH
SENTENCE FOR TELLING COURT HE WOULD NOT OBEY ORDER TO PRODUCE RECORDS
BEFORE THE GRAND JURY AT A LATER DATE); UNITED STATES V. FIELD, 193
F.2D 92 (C.A.2D CIR.) (ONE SENTENCE OF 90 DAYS AND TWO SENTENCES OF 6
MONTHS, ALL WITH PURGE CLAUSES FOR REFUSALS TO ANSWER CERTAIN QUESTIONS
AND PRODUCE CERTAIN DOCUMENTS AT HEARING BEFORE THE COURT); ENRICHI V.
UNITED STATES, 212 F.2D 702 (SIX-MONTH SENTENCE AND $500 FINE FOR
REFUSAL BEFORE COURT TO TESTIFY BEFORE GRAND JURY). 

EVEN REFUSALS TO TESTIFY DURING THE COURSE OF TRIAL HAVE NOT BEEN
PUNISHED AS SEVERELY: IN RE CASHMAN, 168 F. 1008 (D.C.S.D.N.Y.)(8
MONTHS AND $750 FINE FOR REFUSAL TO ANSWER QUESTIONS AT BANKRUPTCY
HEARING); UNITED STATES V. BARKER, 11 F.R.D. 421 (90 DAYS AND $1,000
FINE FOR REFUSAL TO TESTIFY ON CROSS-EXAMINATION DURING TRIAL); UNITED
STATES V. FLEGENHEIMER, 82 F.2D 751 (C.A.2D CIR.)(SIX MONTHS FOR
WITNESS' REFUSAL TO GIVE DIRECT TESTIMONY); UNITED STATES V. GATES, 176
F.2D 78 (C.A.2D CIR.)(30 DAYS WITH PURGE CLAUSE FOR REFUSAL TO ANSWER
QUESTION ON CROSS-EXAMINATION DURING TRIAL); WIDGER V. UNITED STATES,
244 F.2D 103 (ONE-YEAR SENTENCE FOR REFUSAL TO TESTIFY REVERSED). 

FN12  ALL OF THE LONGER SENTENCES HAVE BEEN VACATED OR REVERSED ON
APPEAL:  UNITED STATES V. MIRANTI, 253 F.2D 135 (C.A.2D CIR.); CARLSON
V. UNITED STATES, 209 F.2D 209; HEALEY V. UNITED STATES, 186 F.2D 164. 
THE 18-MONTH SENTENCE SUSTAINED IN LOPIPARO V. UNITED STATES, 216 F.2D
87, WAS NOT FOR A REFUSAL TO TESTIFY.  RATHER, THE CONTEMPT THERE WAS
BASED UPON THE JUDGE'S DISBELIEF OF DEFENDANT'S STORY THAT HE COULD NOT
FIND THE CORPORATE BOOKS WHICH HE WAS ORDERED TO PRODUCE BEFORE THE
GRAND JURY.  216 F.2D, AT 91.  EVEN THE SENTENCE IN THAT CASE CONTAINED
A PURGE CLAUSE. 

FN13  THE STATED REASON FOR REQUESTING OMISSION OF A PURGE CLAUSE WAS
THE LEGAL EFFECT IT MIGHT HAVE IN SHORTENING THE FIXED TERM.  BUT SEE
LOPIPARO V. UNITED STATES, 222 F.2D 897.  CF. LOUBRIEL V. UNITED
STATES, 9 F.2D 807, RELIED ON BY THE GOVERNMENT. 

FN14  EIGHT DAYS LATER, THE COURT OF APPEALS GRANTED BAIL AND
PETITIONER HAS BEEN AT LARGE SINCE. 

FN15  THE QUESTION OF WHETHER THE APRIL 8 PROCEEDINGS WERE CONDUCTED
IN SECRET IS THE SUBJECT OF SOME CONFUSION CAUSED BY THE SWIFT
PROCEDURE INVOKED.  IT IS CLEAR THAT ON APRIL 5 THE COURTROOM WAS
CLEARED.  IT IS ALSO CLEAR THAT ON APRIL 8 THE GRAND JURY RETURNED TO
THE COURTROOM OSTENSIBLY FOR FURTHER AID AND ASSISTANCE, AND THAT THE
GRAND JURY REPORTER READ TO THE COURT WHAT HAD HAPPENED EARLIER. 
THOUGH THE TRANSCRIPT DOES NOT SO INDICATE, IT WOULD SEEM MOST LIKELY
THAT SECRECY WAS AGAIN IN EFFECT.  IN FACT, PETITIONER'S COUNSEL
OBJECTED TO THE PROCEDURE AND ASKED THAT HE BE SERVED IN "OPEN COURT"
WITH NOTICE OF THE CHARGES.  THERE IS NO INDICATION OF ANY CHANGE IN
THIS SITUATION AFTER THE REFUSAL TO ANSWER AND BEFORE THE ACTUAL
CONTEMPT PROCEEDING.  THE ASSISTANT UNITED STATES ATTORNEY HAS STATED
THAT IN FACT THERE WERE NO SPECTATORS IN THE COURTROOM ON APRIL 8.   A
SECRET PROCEEDING IS NO LESS SECRET BECAUSE THE DEFENDANT IS ALLOWED TO
HAVE COUNSEL.  SEE ALSO N. 10, SUPRA. 

FN16  RELIANCE UPON THE IMPROPER APPLICATION OF RULE 42(A) TO
PETITIONER IN THIS CASE, MAKES IT UNNECESSARY TO DISCUSS THE ISSUE
RAISED IN GREEN V. UNITED STATES, 356 U.S. 165, 193 (DISSENTING
OPINION). 
..END :













GANGER V. MIAMI 359 U.S. 64 


NO. 153.  ARGUED MARCH 2-3, 1959.  - DECIDED MARCH 9, 1959.  - REPORTED
BELOW:  101 SO. 2D 116, 123. 


APPEAL DISMISSED FOR WANT OF A PROPERLY PRESENTED SUBSTANTIAL FEDERAL
QUESTION. 

GANGER ET AL. V. CITY OF MIAMI. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A PROPERLY PRESENTED SUBSTANTIAL
FEDERAL QUESTION. 
..END :













TOWNSEND V. SAIN 359 U.S. 64 


NO. 552, MISC.  DECIDED MARCH 9, 1959 - CERTIORARI GRANTED; JUDGMENT
VACATED; AND CASE REMANDED. 


TOWNSEND V. SAIN, SHERIFF, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT IS VACATED AND THE CASE IS
REMANDED.  UNITED STATES EX REL. JENNINGS V. RAGEN, WARDEN, 358 U.S.
276.  OF ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES." 
..END :













NEW YORK V. O'NEILL 359 U.S. 1 


NO. 53.  ARGUED NOVEMBER 20, 1958 - DECIDED MARCH 2, 1959 - 100 SO. 2D
149, REVERSED AND CAUSE REMANDED. 


WHILE TEMPORARILY IN FLORIDA, RESPONDENT WAS SUMMONED TO APPEAR AT A
HEARING TO DETERMINE WHETHER HE SHOULD BE DELIVERED INTO THE CUSTODY OF
A NEW YORK OFFICIAL TO BE TAKEN TO NEW YORK TO TESTIFY IN A GRAND JURY
PROCEEDING.  THIS PROCEDURE, AND ADEQUATE SAFEGUARDS TO PROTECT PERSONS
SUBJECT TO IT, WERE ESTABLISHED IN FLORIDA BY THE ENACTMENT OF THE
UNIFORM LAW TO SECURE THE ATTENDANCE OF WITNESSES FROM WITHIN OR
WITHOUT A STATE IN CRIMINAL PROCEEDINGS, WHICH HAD BEEN ENACTED ALSO IN
NEW YORK, 39 OTHER STATES AND PUERTO RICO.  HELD:  THE FLORIDA STATUTE,
ON ITS FACE, DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF
ART. IV, SEC. 2 OF THE CONSTITUTION NOR THE PRIVILEGES AND IMMUNITIES
OR DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 3-12. 

NEW YORK V. O'NEILL. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS BEFORE US TO DETERMINE THE CONSTITUTIONALITY OF A
FLORIDA STATUTE ENTITLED "UNIFORM LAW TO SECURE THE ATTENDANCE OF
WITNESSES FROM WITHIN OR WITHOUT A STATE IN CRIMINAL PROCEEDINGS." 
FLA. STAT., 1957, SECS. 942.01-942.06.  RESPONDENT, A CITIZEN OF
ILLINOIS, HAD TRAVELED TO FLORIDA TO ATTEND A CONVENTION.  IN
ACCORDANCE WITH THE FLORIDA STATUTE, THE CIRCUIT COURT OF DADE COUNTY,
FLORIDA, RESPONDED TO A CERTIFICATE EXECUTED BY A JUDGE OF THE COURT OF
GENERAL SESSIONS, NEW YORK COUNTY (UNDER N.Y. CODE CRIM. PROC. SEC. 618
A), BY SUMMONING RESPONDENT BEFORE IT TO DETERMINE WHETHER HE WAS TO BE
GIVEN INTO THE CUSTODY OF NEW YORK AUTHORITIES TO BE TRANSPORTED TO NEW
YORK TO TESTIFY IN A GRAND JURY PROCEEDING IN THAT STATE.  THE CIRCUIT
COURT, RULING THAT THE FLORIDA STATUTE VIOLATED THE FLORIDA AND THE
UNITED STATES CONSTITUTIONS, REFUSED TO GRANT NEW YORK'S REQUEST.  9
FLA. SUPP. 153.  THE SUPREME COURT OF FLORIDA AFFIRMED THIS DECISION ON
THE GROUND THAT THE STATUTE VIOLATED THE UNITED STATES CONSTITUTION. 
100 SO. 2D 149.  WE GRANTED CERTIORARI, 356 U.S. 972, INASMUCH AS THIS
HOLDING BRINGS INTO QUESTION THE CONSTITUTIONALITY OF A STATUTE NOW IN
FORCE IN FORTY-TWO STATES AND THE COMMONWEALTH OF PUERTO RICO.  (THIRTY
NINE STATES AND PUERTO RICO JOINED IN AN AMICI BRIEF IN SUPPORT OF THE
UNIFORM ACT.)  THE CERTIFICATE FILED WITH THE CIRCUIT COURT OF DADE
COUNTY RECITES THAT RESPONDENT'S TESTIMONY IS DESIRED BY A NEW YORK
COUNTY GRAND JURY.   THAT CERTIFICATE IS, UNDER THE TERMS OF THE
STATUTE, "PRIMA FACIE EVIDENCE OF ALL THE FACTS STATED THEREIN."  FLA. 
STAT., 1957, SEC. 942.02(2).  THEREFORE, ON THE FACE OF THE RECORD,
RESPONDENT'S ATTENDANCE AT A GRAND JURY INVESTIGATION IN NEW YORK IS
REQUIRED BY THE CERTIFICATE FILED WITH THE FLORIDA COURT AND NOT
WITHDRAWN FROM IT.  NEITHER PARTY HAS SUGGESTED THAT THIS IS NOT A LIVE
LITIGATION NOR DO WE FIND ANY GROUND FOR DEEMING THE CASE TO BE MOOT. 

THE UNIFORM ACT AS ENACTED BY THE FLORIDA LEGISLATURE IN 1941 WAS
FORMULATED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE
LAWS IN ITS PRESENT FORM IN 1936.  SEE HANDBOOK OF THE NATIONAL
CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 333 (1936); 9 U.L.A.
91 (1957).  THE UNIFORM ACT IS RECIPROCAL.  IT IS OPERATIVE ONLY
BETWEEN STATES WHICH HAVE ENACTED IT OR SIMILAR LEGISLATION FOR
COMPELLING OF WITNESSES TO TRAVEL TO, AND TESTIFY IN, SISTER STATES. 

THE TERMS OF THE STATUTE MAKE QUITE CLEAR THE PROCEDURES TO BE
FOLLOWED.  THE JUDGE OF THE COURT OF THE REQUESTING STATE FILES IN ANY
COURT OF RECORD IN THE STATE IN WHICH THE WITNESS MAY BE FOUND A
CERTIFICATE STATING THE NECESSITY OF THE APPEARANCE OF SUCH WITNESS IN
A CRIMINAL PROSECUTION OR GRAND JURY INVESTIGATION IN THE REQUESTING
STATE.  THE CERTIFICATE MUST ALSO STATE THE NUMBER OF DAYS THE WITNESS
WOULD BE REQUIRED TO ATTEND.  UPON RECEIPT OF SUCH A CERTIFICATE A
HEARING IS HELD BY THE COURT IN WHICH IT IS FILED.  IN THE HEARING, AT
WHICH UNDER THE FLORIDA ACT THE WITNESS IS ENTITLED TO COUNSEL, THE
COURT WHICH RECEIVED THIS CERTIFICATE IS OBLIGED TO DETERMINE WHETHER
AN ORDER TO ATTEND THE PROSECUTION OR GRAND JURY INVESTIGATION IN THE
REQUESTING STATE WOULD COMPLY WITH CONDITIONS SET FORTH IN THE STATUTE:
THAT THE WITNESS IS MATERIAL AND NECESSARY; THAT THE TRIP TO THE
REQUESTING STATE WOULD NOT INVOLVE UNDUE HARDSHIP TO THE WITNESS; THAT
THE LAWS OF THE REQUESTING STATE AND STATES THROUGH WHICH THE WITNESS
MUST TRAVEL GRANT HIM IMMUNITY FROM ARREST AND THE SERVICE OF CIVIL AND
CRIMINAL PROCESS.  FURTHERMORE, THE STATUTE PROVIDES THAT THE WITNESS
MUST BE TENDERED TEN CENTS A MILE FOR EACH MILE TO AND FROM THE
REQUESTING STATE AND FIVE DOLLARS FOR EACH DAY THAT HE IS REQUIRED TO
TRAVEL AND ATTEND AS A WITNESS.  UNDER THE STATUTE THE ORDER OF THE
FORWARDING STATE TO THE WITNESS MAY TAKE TWO FORMS:  FIRST, THE COURT
MAY ISSUE A SUMMONS DIRECTING THE WITNESS TO ATTEND AND TESTIFY IN THE
REQUESTING STATE; SECOND, IF THE CERTIFICATE OF THE REQUESTING STATE SO
RECOMMENDS, AND IF THE RECOMMENDATION IS FOUND TO BE DESIRABLE BY THE
COURT OF THE FORWARDING STATE, THE COURT MAY IMMEDIATELY DELIVER THE
WITNESS TO AN OFFICER OF THE REQUESTING STATE.  FURTHERMORE, IF SUCH A
RECOMMENDATION IS MADE BY THE REQUESTING STATE, INSTEAD OF THE INITIAL
NOTIFICATION OF HEARING THE COURT OF THE FORWARDING STATE MAY TAKE THE
WITNESS INTO IMMEDIATE CUSTODY.  WHETHER THE PROCEDURE BE BY
NOTIFICATION AND THEN SUMMONS OR BY APPREHENSION AND THEN DELIVERY, THE
HEARING AND THE ISSUES TO BE DETERMINED THEREIN ARE THE SAME. 

IN COMMONWEALTH OF KENTUCKY V. DENNISON, 24 HOW.  66, MR. CHIEF
JUSTICE TANEY, SPEAKING OF THE OBLIGATION IMPOSED BY THE CONSTITUTION
UPON THE GOVERNOR OF OHIO TO DELIVER TO KENTUCKY ONE ACCUSED OF
VIOLATION OF THE CRIMINAL LAWS OF KENTUCKY, CALLED ATTENTION "TO THE
OBVIOUS POLICY AND NECESSITY OF THIS PROVISION TO PRESERVE HARMONY
BETWEEN STATES, AND ORDER AND LAW WITHIN THEIR RESPECTIVE BORDERS  ...
."  24 HOW., AT 103.  THE SAME "POLICY AND NECESSITY" UNDERLIE THE
MEASURE ADOPTED BY FLORIDA AND FORTY-TWO OTHER JURISDICTIONS.  UNLESS
THERE IS SOME PROVISION IN THE UNITED STATES CONSTITUTION WHICH CLEARLY
PREVENTS STATES FROM ACCOMPLISHING THIS END BY THE MEANS CHOSEN, THIS
COURT MUST SUSTAIN THE UNIFORM ACT.  THE ABSENCE OF A PROVISION IN THE
UNITED STATES CONSTITUTION SPECIFICALLY GRANTING POWER TO THE STATES TO
LEGISLATE RESPECTING INTERSTATE RENDITION OF WITNESSES PRESENTS NO
BAR.  TO ARGUE FROM THE DECLARATORY INCORPORATION IN THE CONSTITUTION,
ART. IV, SEC. 2, OF THE ANCIENT POLITICAL POLICY AMONG THE COLONIES OF
DELIVERING UP FUGITIVES FROM JUSTICE AN IMPLIED DENIAL OF THE RIGHT TO
FASHION OTHER COOPERATIVE ARRANGEMENTS FOR THE EFFECTIVE ADMINISTRATION
OF JUSTICE, IS TO REDUCE THE CONSTITUTION TO A RIGID, DETAILED AND
NIGGARDLY CODE.  IN ADJUDGING THE VALIDITY OF A STATUTE EFFECTING A NEW
FORM OF RELATIONSHIP BETWEEN STATES, THE SEARCH IS NOT FOR A SPECIFIC
CONSTITUTIONAL AUTHORIZATION FOR IT.  RATHER, ACCORDING THE STATUTE THE
FULL BENEFIT OF THE PRESUMPTION OF CONSTITUTIONALITY WHICH IS THE
POSTULATE OF CONSTITUTIONAL ADJUDICATION, WE MUST FIND CLEAR
INCOMPATIBILITY WITH THE UNITED STATES CONSTITUTION.  THE RANGE OF
STATE POWER IS NOT DEFINED AND DELIMITED BY AN ENUMERATION OF
LEGISLATIVE SUBJECT-MATTER.  THE CONSTITUTION DID NOT PURPORT TO
EXHAUST IMAGINATION AND RESOURCEFULNESS IN DEVISING FRUITFUL INTERSTATE
RELATIONSHIPS.  IT IS NOT TO BE CONSTRUED TO LIMIT THE VARIETY OF
ARRANGEMENTS WHICH ARE POSSIBLE THROUGH THE VOLUNTARY AND COOPERATIVE
ACTIONS OF INDIVIDUAL STATES WITH A VIEW TO INCREASING HARMONY WITHIN
THE FEDERALISM CREATED BY THE CONSTITUTION.  FAR FROM BEING DIVISIVE,
THIS LEGISLATION IS A CATALYST OF COHESION.  IT IS WITHIN THE
UNRESTRICTED AREA OF ACTION LEFT TO THE STATES BY THE CONSTITUTION. 

THE SUPREME COURT OF FLORIDA FOUND THAT THE STATUTE VIOLATED THE
PRIVILEGES AND IMMUNITIES CLAUSES FOUND IN ART. IV, SEC. 2, AND IN THE
FOURTEENTH AMENDMENT.  THE PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV,
SEC. 2, PROSCRIBES DISCRIMINATION BY A STATE AGAINST A CITIZEN OF
ANOTHER STATE.  SLAUGHTER-HOUSE CASES, 16 WALL.  36, 77.  THERE IS NO
SUCH DISCRIMINATION HERE.  THE FLORIDA STATUTE APPLIES TO ALL PERSONS
WITHIN THE BOUNDARIES, AND THEREFORE SUBJECT TO THE JURISDICTION, OF
FLORIDA.   THE FINDING OF THE FLORIDA SUPREME COURT THAT THE RIGHT TO
INGRESS AND EGRESS IS A PRIVILEGE OF NATIONAL CITIZENSHIP PROTECTED BY
THE FOURTEENTH AMENDMENT RAISES AN ISSUE THAT HAS MORE THAN ONCE BEEN
STIRRED IN OPINIONS OF THIS COURT.  SEE CONCURRING OPINIONS IN EDWARDS
V. CALIFORNIA, 314 U.S. 160, 178 AND 184, IN CONNECTION WITH CRANDALL
V. NEVADA, 6 WALL.  35.  HOWEVER, EVEN IF BROAD SCOPE BE GIVEN TO SUCH
A PRIVILEGE, THERE IS NO VIOLATION OF THAT PRIVILEGE BY THE FLORIDA
STATUTE.  FLORIDA UNDOUBTEDLY COULD HAVE HELD RESPONDENT WITHIN FLORIDA
IF HE HAD BEEN A MATERIAL WITNESS IN A CRIMINAL PROCEEDING WITHIN THAT
STATE.  AND YET THIS WOULD NOT HAVE BEEN LESS OF A LIMITATION ON HIS
CLAIM OF THE RIGHT OF INGRESS AND EGRESS THAN IS AN ORDER TO ATTEND AND
TESTIFY IN NEW YORK.  THERE ARE RESTRICTIONS ON THE EXERCISE OF THE
CLAIMED CONSTITUTIONAL RIGHT.  ONE SUCH RESTRICTION DERIVES FROM THE
OBLIGATION TO GIVE TESTIMONY.  THIS OBLIGATION HAS BEEN SUSTAINED WHERE
IT NECESSITATED TRAVEL ACROSS THE ATLANTIC OCEAN.  BLACKMER V. UNITED
STATES, 284 U.S. 421.* 

*COMPULSION TO TRAVEL ACROSS STATE BOUNDARIES TO TESTIFY IN SISTER
STATES ANTEDATES THE UNITED STATES CONSTITUTION.  SEE LAWS OF MARYLAND,
NOVEMBER 1785, CHAPTER I, AN ACT TO APPROVE, CONFIRM AND RATIFY, THE
COMPACT MADE BY THE COMMISSIONERS APPOINTED BY THE GENERAL ASSEMBLY OF
THE COMMONWEALTH OF VIRGINIA, AND THE COMMISSIONERS APPOINTED BY THIS
STATE, TO REGULATE AND SETTLE THE JURISDICTION AND NAVIGATION OF
PATOWMACK AND POCOMOKE RIVERS, AND THAT PART OF CHESAPEAKE BAY WHICH
LIETH WITHIN THE TERRITORY OF VIRGINIA:  "AND IN ALL CASES OF TRIAL IN
PURSUANCE OF THE JURISDICTION SETTLED BY THIS COMPACT, CITIZENS OF
EITHER STATE SHALL ATTEND AS WITNESSES IN THE OTHER, UPON A SUMMONS
FROM ANY COURT OR MAGISTRATE HAVING JURISDICTION, BEING SERVED BY A
PROPER OFFICER OF THE COUNTY WHERE SUCH CITIZEN SHALL RESIDE." 

MORE FUNDAMENTALLY, THIS CASE DOES NOT INVOLVE FREEDOM OF TRAVEL IN
ITS ESSENTIAL SENSE.  AT MOST IT REPRESENTS A TEMPORARY INTERFERENCE
WITH VOLUNTARY TRAVEL.  PARTICULARLY IS THIS SO IN AN ERA OF JET
TRANSPORTATION WHEN VAST DISTANCES CAN BE TRAVERSED IN A MATTER OF
HOURS.  RESPONDENT WAS PERFECTLY FREE TO RETURN TO FLORIDA AFTER
TESTIFYING IN NEW YORK.  INDEED, NEW YORK WAS OBLIGATED TO PAY HIS WAY
BACK TO FLORIDA.  OR, AFTER TESTIFYING, HE COULD RETURN TO ILLINOIS OR
REMAIN IN NEW YORK.  THE PRIVILEGE OF INGRESS AND EGRESS AMONG THE
STATES WHICH HAS BEEN URGED IN OPINIONS IS OF HARDIER STUFF.  THE
PRIVILEGE WAS TO PREVENT THE WALLING OFF OF STATES, WHAT HAS BEEN
CALLED THE BALKANIZATION OF THE NATION.  THE REQUIREMENT WHICH
RESPONDENT RESISTS CONDUCES, IT MERITS REPETITION, TOWARD A FREE-WILLED
COLLABORATION OF INDEPENDENT STATES. 

THE MORE RELEVANT CHALLENGE TO THE STATUTE INVALIDATED BY THE SUPREME
COURT OF FLORIDA IS THAT IT DENIES DUE PROCESS OF LAW IN VIOLATION OF
THE FOURTEENTH AMENDMENT.  BECAUSE OF THE GENEROUS PROTECTIONS TO BE
ACCORDED A PERSON BROUGHT OR SUMMONED BEFORE THE COURT OF THE
FORWARDING STATE, PROCEDURAL DUE PROCESS IN THE HEARING ITSELF MUST BE
ACCORDED AND THIS IS FIRMLY ESTABLISHED.  THE CIRCUIT COURT OF DADE
COUNTY RULED THAT THE ABSENCE OF ANY PROVISION FOR BAIL IN THE
PROCEDURE OF APPREHENSION AND DELIVERY VIOLATED DUE PROCESS OF LAW. 
SINCE THE SUPREME COURT OF FLORIDA EXPRESSLY REFRAINED FROM RULING
WHETHER THE FAILURE OF THE STATUTE TO PROVIDE FOR BAIL FOR PERSONS
ATTACHED AND DELIVERED VIOLATED EITHER THE FLORIDA CONSTITUTION OR THE
FOURTEENTH AMENDMENT, AND SINCE SILENCE ON BAIL IS NOT TANTAMOUNT TO
PROSCRIPTION OF BAIL, THE CLAIM THAT THIS SILENCE OF THE STATUTE IS A
VIOLATION OF THE FOURTEENTH AMENDMENT IS A HYPOTHETICAL QUESTION WHICH
NEED NOT NOW BE CONSIDERED.  WE MAY ADD THAT THE SOLE CLAIM BEFORE US,
AS IT WAS THE SOLE CLAIM DEALT WITH BY THE SUPREME COURT OF FLORIDA, IS
THAT THE STATUTE IS UNCONSTITUTIONAL ON ITS FACE.  NO CLAIM IS BEFORE
US THAT THE ADMINISTRATION OF THE STATUTE IN THE PARTICULAR
CIRCUMSTANCES OF THIS CASE VIOLATES DUE PROCESS. 

THE SUPREME COURT OF FLORIDA HELD THAT INASMUCH AS WHAT WAS ORDERED
WAS TO BE CARRIED ON IN A FOREIGN JURISDICTION, THE FLORIDA COURTS
COULD NOT CONSTITUTIONALLY BE GIVEN JURISDICTION TO ORDER IT (CITING
PENNOYER V. NEFF, 95 U.S. 714).  HOWEVER, THE FLORIDA COURTS HAD
IMMEDIATE PERSONAL JURISDICTION OVER RESPONDENT BY VIRTUE OF HIS
PRESENCE WITHIN THAT STATE.  INSOFAR AS THE FOURTEENTH AMENDMENT IS
CONCERNED, THIS GAVE THE FLORIDA COURTS CONSTITUTIONAL JURISDICTION TO
ORDER AN ACT EVEN THOUGH THAT ACT IS TO BE PERFORMED OUTSIDE OF THE
STATE.  SEE STEELE V. BULOVA WATCH CO., 344 U.S. 280; RESTATEMENT,
CONFLICT OF LAWS, SEC. 94. 

THE PRIMARY PURPOSE OF THIS ACT IS NOT ELEEMOSYNARY.  IT SERVES A
SELF-PROTECTIVE FUNCTION FOR EACH OF THE ENACTING STATES.  BY ENACTING
THIS LAW THE FLORIDA LEGISLATURE AUTHORIZED AND ENABLED FLORIDA COURTS
TO EMPLOY THE PROCEDURES OF OTHER JURISDICTIONS FOR THE OBTAINING OF
WITNESSES NEEDED IN CRIMINAL PROCEEDINGS IN FLORIDA.  TODAY FORTY-TWO
STATES AND PUERTO RICO MAY FACILITATE CRIMINAL PROCEEDINGS, OTHERWISE
IMPEDED BY THE UNAVAILABILITY OF MATERIAL WITNESSES, BY UTILIZING THE
MACHINERY OF THIS RECIPROCAL LEGISLATION TO OBTAIN SUCH WITNESSES FROM
WITHOUT THEIR BOUNDARIES.  THIS IS NOT A MERELY ALTRUISTIC,
DISINTERESTED ENACTMENT. 

IN ANY EVENT, TO YIELD TO AN ARGUMENT THAT BENEFITING OTHER STATES IS
BEYOND THE POWER OF A STATE WOULD COMPLETELY DISREGARD THE INHERENT
IMPLICATIONS OF OUR FEDERALISM WITHIN WHOSE FRAMEWORK OUR ORGANIC
SOCIETY LIVES AND MOVES AND HAS ITS BEING - THE ABUNDANT AND
COMPLICATED INTERRELATIONSHIP BETWEEN NATIONAL AUTHORITY AND THE
STATES, SEE HOPKINS FEDERAL SAVINGS & LOAN ASSN. V. CLEARY, 296 U.S.
315, AND BETWEEN THE STATES INTER SESE.  TO YIELD TO THIS ARGUMENT
WOULD FORECLOSE TO THE STATES VIRTUALLY ALL ARRANGEMENTS WHICH INCREASE
COMITY AMONG THE STATES.  THESE EXTRA-CONSTITUTIONAL ARRANGEMENTS ARE
DESIGNED TO SOLVE "PROBLEMS CREATED BY A CONSTITUTIONAL DIVISION OF
POWERS WITHOUT DISTURBANCE OF THE FEDERAL NATURE OF OUR GOVERNMENT." 
CLARK, JOINT ACTIVITY BETWEEN FEDERAL AND STATE OFFICIALS, 51 POL. 
SCI.  Q. 230, 269.  RECIPROCAL LEGISLATION, SUCH AS THE UNIFORM LAW TO
SECURE THE ATTENDANCE OF WITNESSES FROM WITHIN OR WITHOUT A STATE IN
CRIMINAL PROCEEDINGS AND THE ACTS PROVIDING RECIPROCAL PERIODS OF GRACE
IN THE REGISTRATION OF OUT-OF-STATE AUTOMOBILES, SEE KANE V. NEW
JERSEY, 242 U.S. 160, IS ONE SUCH ARRANGEMENT.  THE UNIFORM LAWS
PROPOSED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE
LAWS AND ADOPTED BY INDIVIDUAL STATES HAVE (AMONG OTHER BENEFITS)
INCREASED EASE OF INTERSTATE COMMERCIAL RELATIONSHIPS BY PROVIDING
UNIFORMITY IN COMMERCIAL LAWS THROUGH UNIFORM ACTS GOVERNING SALES AND
NEGOTIABLE INSTRUMENTS.  UNIFORM LAWS HAVE FREQUENTLY BEEN CONCERNED
WITH ENFORCEMENT OF CRIMINAL LAWS.  THUS, THE UNIFORM CRIMINAL
EXTRADITION ACT, 9 U.L.A. 263 (1957), PROVIDES FOR RENDITION OF ALLEGED
CRIMINALS WHOSE CONDUCT DOES NOT BRING THEM WITHIN THE CONSTITUTIONAL
EXTRADITION PROVISION.   U.S. CONST., ART. IV, SEC. 2; HYATT V. PEOPLE
EX REL. CORKRAN, 188 U.S. 691.  THERE ARE NUMEROUS COOPERATIVE
UNDERTAKINGS AMONG STATES BY THE FORMATION OF AGENCIES WHICH STUDY
JOINT PROBLEMS AND MAKE SUGGESTIONS FOR INTERNAL MANAGEMENT WITHIN
INDIVIDUAL STATES CALCULATED TO INCREASE COMITY AMONG THE SEVERAL
STATES.  INTERSTATE PRESERVES ARE REGULATED THROUGH THE DEVICE OF
FUSION OF DISTINCT STATE ADMINISTRATIVE AGENCIES BY MEANS OF JOINT
SESSIONS AND JOINT ACTION.  THE FEDERAL GOVERNMENT HAS ALSO ACTED IN
AID OF STATES IN MATTERS OF LOCAL CONCERN THROUGH AUXILIARY LEGISLATION
(IN GAME STATUTES, FOR EXAMPLE), THROUGH GRANTS-IN-AID, AND THROUGH
LEGISLATION CALLING FOR COOPERATION BETWEEN PARTICULAR STATE
ADMINISTRATIVE AGENCIES AND FEDERAL AGENCIES OPERATING WITHIN THE SAME
GENERAL AREA OF REGULATION.  SEE FRANKFURTER AND LANDIS, THE COMPACT
CLAUSE OF THE CONSTITUTION - A STUDY IN INTERSTATE ADJUSTMENTS, 34 YALE
L.J. 685, 688-691.  ABOUT SUCH INSTANCES IT HAS BEEN SAID THAT THEY
"ILLUSTRATE EXTRACONSTITUTIONAL FORMS OF LEGAL INVENTION FOR THE
SOLUTION OF PROBLEMS TOUCHING MORE THAN ONE STATE.  THEY WERE NEITHER
CONTEMPLATED NOR SPECIFICALLY PROVIDED FOR BY THE CONSTITUTION." 
FRANKFURTER AND LANDIS, SUPRA, AT 691. 

THE MANIFOLD ARRANGEMENTS BY WHICH THE FEDERAL AND STATE GOVERNMENTS
COLLABORATE CONSTITUTE AN EXTENSIVE NETWORK OF COOPERATIVE GOVERNMENTAL
ACTIVITIES NOT FORMULATED IN THE CONSTITUTION BUT NOT OFFENSIVE TO ANY
OF ITS PROVISIONS OR PROHIBITIONS.  SEE CLARK, SUPRA.  AMONG THE
EXAMPLES OF SUCH DEVICES DISCUSSED BY DR. CLARK ARE THE SELECTIVE
SERVICE SYSTEM, CIVILIAN CONSERVATION CORPS, DEPORTATION LAW
ENFORCEMENT, ADMINISTRATION OF THE PURE FOOD AND DRUGS ACT AND THE
FEDERAL GAME STATUTES, AND FEDERAL-STATE CONTRACTS FOR THE BOARDING OF
FEDERAL PRISONERS IN STATE FACILITIES. 

TO HOLD THAT THESE AND OTHER ARRANGEMENTS ARE BEYOND THE POWER OF THE
STATES AND FEDERAL GOVERNMENT BECAUSE THERE IS NO SPECIFIC EMPOWERING
PROVISION IN THE UNITED STATES CONSTITUTION WOULD BE TO TAKE AN
UNWARRANTEDLY CONSTRICTED VIEW OF STATE AND NATIONAL POWERS AND WOULD
HOBBLE THE EFFECTIVE FUNCTIONING OF OUR FEDERALISM.  DIFFUSION OF POWER
HAS ITS COROLLARY OF DIFFUSION OF RESPONSIBILITIES, WITH ITS STIMULUS
TO COOPERATIVE EFFORT IN DEVISING WAYS AND MEANS FOR MAKING THE FEDERAL
SYSTEM WORK.  THIS IS NOT A MECHANICAL STRUCTURE.  IT IS AN INTERPLAY
OF LIVING FORCES OF GOVERNMENT TO MEET THE EVOLVING NEEDS OF A COMPLEX
SOCIETY. 

THE CONSTITUTION OF THE UNITED STATES DOES NOT PRECLUDE
RESOURCEFULNESS OF RELATIONSHIPS BETWEEN STATES ON MATTERS AS TO WHICH
THERE IS NO GRANT OF POWER TO CONGRESS AND AS TO WHICH THE RANGE OF
AUTHORITY RESTRICTED WITHIN AN INDIVIDUAL STATE IS INADEQUATE.  BY
RECIPROCAL, VOLUNTARY LEGISLATION THE STATES HAVE INVENTED METHODS TO
ACCOMPLISH FRUITFUL AND UNPROHIBITED ENDS.  A CITIZEN CANNOT SHIRK HIS
DUTY, NO MATTER HOW INCONVENIENCED THEREBY, TO TESTIFY IN CRIMINAL
PROCEEDINGS AND GRAND JURY INVESTIGATIONS IN A STATE WHERE HE IS
FOUND.  THERE IS NO CONSTITUTIONAL PROVISION GRANTING HIM RELIEF FROM
THIS OBLIGATION TO TESTIFY EVEN THOUGH HE MUST TRAVEL TO ANOTHER STATE
TO DO SO.  COMITY AMONG STATES, AN END PARTICULARLY TO BE CHERISHED
WHEN THE OBJECT IS ENFORCEMENT OF INTERNAL CRIMINAL LAWS, IS NOT TO BE
DEFEATED BY AN A PRIORI RESTRICTIVE VIEW OF STATE POWER. 

THE JUDGMENT OF THE SUPREME COURT OF FLORIDA IS REVERSED AND THE
CAUSE IS REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE RIGHT TO FREE INGRESS AND EGRESS WITHIN THE COUNTRY AND EVEN
BEYOND THE BORDERS IS A BASIC CONSTITUTIONAL RIGHT, THOUGH IT IS NOT
CONTAINED IN HAEC VERBA IN THE CONSTITUTION.  IT HAD BEEN INCLUDED IN
THE ARTICLES OF CONFEDERATION, ARTICLE IV OF WHICH PROVIDED IN PART: 

"THE BETTER TO SECURE AND PERPETUATE MUTUAL FRIENDSHIP AND
INTERCOURSE AMONG THE PEOPLE OF THE DIFFERENT STATES IN THIS UNION, THE
FREE INHABITANTS OF EACH OF THESE STATES, PAUPERS, VAGABONDS AND
FUGITIVES FROM JUSTICE EXCEPTED, SHALL BE ENTITLED TO ALL THE
PRIVILEGES AND IMMUNITIES OF FREE CITIZENS IN THE SEVERAL STATES; AND
THE PEOPLE OF EACH STATE SHALL HAVE FREE INGRESS AND REGRESS TO AND
FROM ANY OTHER STATE  ...  ." 

AS CHAFEE, THREE HUMAN RIGHTS IN THE CONSTITUTION (1956), P. 185,
STATES, THE FAILURE TO MAKE SPECIFIC PROVISION FOR THIS RIGHT IN THE
CONSTITUTION MUST HAVE BEEN ON THE ASSUMPTION THAT IT WAS ALREADY
INCLUDED.  FOR IT IS IMPOSSIBLE TO THINK THAT A RIGHT SO DEEPLY
CHERISHED IN THE COLONIES WAS REJECTED OUTRIGHT.  "THE CONVENTION
CAREFULLY PREVENTED STATES FROM PASSING TARIFF LAWS; SURELY IT DID NOT
WANT STATE IMMIGRATION LAWS."  CHAFEE, OP. CIT., SUPRA, AT 185.  THE
CONSTITUTION WAS DESIGNED "TO SECURE THE FREEST INTERCOURSE BETWEEN THE
CITIZENS OF THE DIFFERENT STATES," SAID CHIEF JUSTICE TANEY IN THE
PASSENGER CASES, 7 HOW.  283, 492.  AND HE ADDED:  "FOR ALL THE GREAT
PURPOSES FOR WHICH THE FEDERAL GOVERNMENT WAS FORMED, WE ARE ONE
PEOPLE, WITH ONE COMMON COUNTRY.  WE ARE ALL CITIZENS OF THE UNITED
STATES; AND, AS MEMBERS OF THE SAME COMMUNITY, MUST HAVE THE RIGHT TO
PASS AND REPASS THROUGH EVERY PART OF IT WITHOUT INTERRUPTION, AS
FREELY AS IN OUR OWN STATES."  ID., 492.  THIS RIGHT OF FREE INGRESS
AND EGRESS IS ONE "ARISING OUT OF THE NATURE AND ESSENTIAL CHARACTER OF
THE FEDERAL GOVERNMENT."  DUNCAN V. MISSOURI, 152 U.S. 337, 382;
TWINING V. NEW JERSEY, 211 U.S. 78, 97.  AS STATED BY THE COURT IN
WILLIAMS V. FEARS, 179 U.S. 270, 274: 

"UNDOUBTEDLY THE RIGHT OF LOCOMOTION, THE RIGHT TO REMOVE FROM ONE
PLACE TO ANOTHER ACCORDING TO INCLINATION, IS AN ATTRIBUTE OF PERSONAL
LIBERTY, AND THE RIGHT, ORDINARILY, OF FREE TRANSIT FROM OR THROUGH THE
TERRITORY OF ANY STATE IS A RIGHT SECURED BY THE FOURTEENTH AMENDMENT
AND BY OTHER PROVISIONS OF THE CONSTITUTION." 

IT HAS OFTEN BEEN CALLED A RIGHT OR PRIVILEGE OF NATIONAL
CITIZENSHIP, CRANDALL V. NEVADA, 6 WALL.  35, 44, 49; WARD V. MARYLAND,
12 WALL.  418, 430; SLAUGHTER HOUSE CASES, 16 WALL.  36, 79; TWINING V.
NEW JERSEY, SUPRA, 97; EDWARDS V. CALIFORNIA, 314 U.S. 160, 178-181,
183 (CONCURRING OPINIONS).  AS SUCH, IT IS PROTECTED AGAINST STATE
ACTION BY THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH
AMENDMENT.  SLAUGHTER HOUSE CASES, SUPRA, AT 74-79; IN RE KEMMLER, 136
U.S. 436, 448. 

IT HAS AT TIMES BEEN CONSIDERED UNDER THE PROTECTIVE CARE OF THE
COMMERCE CLAUSE SUBJECT TO CONTROL BY CONGRESS BUT FREE FROM STOPPAGE
OR IMPAIRMENT BY THE STATES.  EDWARDS V. CALIFORNIA, SUPRA. 

IN KENT V. DULLES, 357 U.S. 116, WE HELD THAT THIS RIGHT TO TRAVEL
WAS A PART OF THE CITIZEN'S "LIBERTY" WITHIN THE MEANING OF THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

"FREEDOM OF MOVEMENT ACROSS FRONTIERS IN EITHER DIRECTION, AND INSIDE
FRONTIERS AS WELL, WAS A PART OF OUR HERITAGE.  TRAVEL ABROAD, LIKE
TRAVEL WITHIN THE COUNTRY, MAY BE NECESSARY FOR A LIVELIHOOD.  IT MAY
BE AS CLOSE TO THE HEART OF THE INDIVIDUAL AS THE CHOICE OF WHAT HE
EATS, OR WEARS, OR READS.  FREEDOM OF MOVEMENT IS BASIC IN OUR SCHEME
OF VALUES."  ID., AT 126. 

WHATEVER MAY BE THE SOURCES OF THIS RIGHT OF FREE MOVEMENT - THE
RIGHT TO GO TO ANY STATE OR STAY HOME AS ONE CHOOSES - IT IS AN
INCIDENT OF NATIONAL CITIZENSHIP AND OCCUPIES A HIGH PLACE IN OUR
CONSTITUTIONAL VALUES. 

THIS RIGHT OF NATIONAL CITIZENSHIP HAS BEEN QUALIFIED.  ONE
QUALIFICATION WAS MADE BY THE EXTRADITION CLAUSE OF ART. IV, SEC. 2, OF
THE CONSTITUTION:  (FN1) 

"A PERSON CHARGED IN ANY STATE WITH TREASON, FELONY, OR OTHER CRIME,
WHO SHALL FLEE FROM JUSTICE, AND BE FOUND IN ANOTHER STATE, SHALL ON
DEMAND OF THE EXECUTIVE AUTHORITY OF THE STATE FROM WHICH HE FLED, BE
DELIVERED UP, TO BE REMOVED TO THE STATE HAVING JURISDICTION OF THE
CRIME." 

BUT THAT LIMITATION ON THE RIGHT OF FREE MOVEMENT APPLIES ONLY WHEN
THE CITIZEN IS A FUGITIVE FROM THE LAW. 

YET O'NEILL IS NOT A FUGITIVE FROM JUSTICE.  HE CARRIES NO CRIMINAL
TAINT.  HE IS WANTED AS A WITNESS IN NEW YORK.  BUT THERE IS NO
PROVISION OF THE CONSTITUTION WHICH PROVIDES FOR THE EXTRADITION OF
WITNESSES BY THE STATES.  THAT POWER IS TODAY JUDICIALLY CREATED.  BUT
I FIND NO AUTHORITY ON THE PART OF THE STATES TO ENLARGE AND EXPAND THE
POWER OF EXTRADITION SPECIFICALLY RESTRICTED BY THE CONSTITUTION TO
CRIMINALS.  AS STATED IN PEOPLE EX REL.  CORKRAN V. HYATT, 172 N.Y.
176, 182, 64 N.E. 825, 826, AFF'D 188 U.S. 691, "  ...  NO PERSON CAN
OR SHOULD BE EXTRADITED FROM ONE STATE TO ANOTHER UNLESS THE ORDER
FALLS WITHIN THE CONSTITUTIONAL PROVISION,  ...  POWER WHICH
INDEPENDENT NATIONS HAVE TO SURRENDER CRIMINALS TO OTHER NATIONS AS A
MATTER OF FAVOR OR COMITY IS NOT POSSESSED BY THE STATES."  WE ALLOW
TODAY ONLY WHAT A CONSTITUTIONAL AMENDMENT COULD ACHIEVE.  WE IN EFFECT
AMEND ART. IV, SEC. 2, BY CONSTRUCTION TO ADD "WITNESSES" TO THE GROUP
NOW EMBRACED IN ART. IV, SEC. 2. 

THIS RIGHT OF FREEDOM OF MOVEMENT EVEN OF THE INNOCENT MAY NOT BE
ABSOLUTE.  PERHAPS A STATE COULD STOP A MIGRANT AT ITS BORDERS FOR
HEALTH INSPECTION.  THERE MAY BE OTHER NARROW AND LIMITED
QUALIFICATIONS TO THIS RIGHT OF FREE INGRESS AND EGRESS WHICH A STATE
MAY IMPOSE.  BUT I KNOW OF NO POWER ON THE PART OF A STATE TO PICK A
CITIZEN UP AND FORCIBLY REMOVE HIM FROM ITS BOUNDARIES WHERE THERE IS
NO BASIS OF EXTRADITION.  BLACKMER V. UNITED STATES, 284 U.S. 421, IS
OF NO HELP HERE.  THERE THE UNITED STATES WAS REQUIRING A CITIZEN,
RESIDENT ABROAD, TO RETURN TO THIS COUNTRY TO TESTIFY AND PENALIZING
HIM FOR HIS REFUSAL.  THIS WAS HIS HOME, TO WHICH HE WAS ROOTED AND
WHERE HIS LOYALTIES LAY.  THE OBLIGATION WAS EXACTED BY THE FEDERAL
GOVERNMENT AS A REQUIREMENT OF NATIONAL CITIZENSHIP.  CONGRESS HAS
STATED THIS RESPONSIBILITY IN AN ACT, 62 STAT. 755, 18 U.S.C. SEC.
1073, WHICH, INTER ALIA, MAKES IT A FEDERAL CRIME FOR A PERSON TO MOVE
IN INTERSTATE COMMERCE "TO AVOID GIVING TESTIMONY" IN CERTAIN CRIMINAL
PROCEEDINGS.  AND CONGRESS HAD MADE EXPLICIT PROVISION CONCERNING THE
STATE TO WHICH THE WITNESS MAY BE REMOVED.  (FN2)  I CAN UNDERSTAND HOW
THIS REGULATION OF NATIONAL CITIZENSHIP CAN BE MADE BY CONGRESS WHICH
SPEAKS WITH AUTHORITY IN THE FEDERAL FIELD OF INTERSTATE COMMERCE. 
(FN3)  I FAIL TO SEE HOW A STATE CAN REGULATE ANY OF THE INCIDENTS OF
NATIONAL CITIZENSHIP.  I SEE NO GREATER POWER ON THE PART OF A STATE TO
SNATCH A LAW-ABIDING CITIZEN FROM HIS ABODE AND SEND HIM TO ANOTHER
STATE THAN TO STOP HIM AT THE BORDER, AS WAS DONE IN EDWARDS V.
CALIFORNIA, SUPRA, BECAUSE IT DOES NOT LIKE THE CUT OF HIS JIB.  STATE
ACTION WAS PRECLUDED IN EDWARDS V. CALIFORNIA, SUPRA, EVEN THOUGH
CONGRESS HAD NOT ACTED.  IT IS EVEN MORE OBVIOUSLY PRECLUDED WHERE
CONGRESS HAS ACTED.  (FN4) 

RECIPROCAL AND UNIFORM LAWS, LIKE INTERSTATE COMPACTS, DOUBTLESS
SERVE MANY USEFUL PURPOSES.  BUT A STATE DOES NOT INCREASE ITS
SOVEREIGN POWERS BY MAKING AN AGREEMENT WITH ANOTHER STATE.  WHETHER
THE RIGHT OF INGRESS AND EGRESS BE BOTTOMED ON THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT, THE COMMERCE CLAUSE, OR
A BASIC "LIBERTY" INHERENT IN NATIONAL CITIZENSHIP, I KNOW OF NO WAY IN
WHICH A STATE MAY TAKE IT FROM A CITIZEN.  TO SAY THAT THERE IS NO
INTERFERENCE HERE BECAUSE O'NEILL WILL BE FREE TO RETURN TO FLORIDA
LATER IS TO TRIFLE WITH A BASIC HUMAN RIGHT.  THE COURT'S ARGUMENT
ENABLES THE STATES THROUGH RECIPROCAL LAWS TO GENERATE POWER THAT THEY
LACK ACTING SEPARATELY.  IT SPEAKS OF THE IMPORTANCE OF ENCOURAGING
"RESOURCEFULNESS OF RELATIONSHIPS BETWEEN STATES ON MATTERS AS TO WHICH
THERE IS NO GRANT OF POWER TO CONGRESS AND AS TO WHICH THE RANGE OF
AUTHORITY RESTRICTED WITHIN AN INDIVIDUAL STATE IS INADEQUATE."  YET IF
THE POWER IS INADEQUATE FOR EITHER FLORIDA OR NEW YORK ACTING
SEPARATELY (AS I AM SURE IT IS), I FAIL TO SEE HOW IT CAN BE MADE
ADEQUATE BY THE POOLING OF THEIR INADEQUACIES.  TO MAKE IT SUCH IS
INDEED A SALTATORIAL ACHIEVEMENT.  THE FACT THAT A RESIDENT OF A STATE
CAN BE COMPELLED TO TESTIFY IN THAT STATE IS NO GROUND FOR COMPELLING
HIM "TO LEAVE HIS STATE AND GO TO SOME OTHER STATE TO TESTIFY VIVA
VOCE."  IN RE ALLEN, 49 D.&C. REP. 631, 640.  HIS RIGHT TO GO OR STAY
IS AN INCIDENT OF NATIONAL CITIZENSHIP, QUALIFIED ONLY BY AN
APPROPRIATE EXERCISE OF FEDERAL POWER.  (FN5) 

THE POWER OF EXTRADITION WAS AN EXPRESSION OF A "POLICY OF MUTUAL
SUPPORT, IN BRINGING OFFENDERS TO JUSTICE," KENTUCKY V. DENNISON, 24
HOW.  66, 100; AND TO SUBSTITUTE A SYSTEM OF LAW, SUPERIOR TO STATE
AUTHORITY, FOR THE SYSTEM OF COMITY PREVAILING AMONG SOVEREIGN
NATIONS.  INNES V. TOBIN, 240 U.S. 127, 130-131.  THE FEDERAL ACT
GOVERNING WITNESSES WHO ARE FUGITIVES IS AN ASSERTION BY CONGRESS OF
CONTROL OVER OUR NATIONALS.  ANY POLICY OF PROVIDING COMPULSORY
DELIVERY OF WITNESSES FROM ONE STATE TO ANOTHER IS IN OTHER WORDS A
FEDERAL POLICY.  IF WE ALLOW THE STATES TO EXERCISE THAT POWER AS THEY
LIKE, WE MIGHT AS WELL PERMIT THEM TO SANCTION COMPULSORY DELIVERY OF
CITIZENS FROM ONE STATE INTO ANOTHER FOR PURPOSES OF BEING SUED.  SEE
MASSACHUSETTS V. KLAUS, 130 N.Y. SUPP. 713, 722 (DISSENTING OPINION). 
IF IT TOOK ART. IV, SEC. 2, OF THE CONSTITUTION TO PROVIDE FOR THE
COMPULSORY DELIVERY OF A PERSON CHARGED WITH A CRIME FROM ONE STATE TO
ANOTHER, AND A FEDERAL ACT TO REQUIRE THE DELIVERY OF WITNESSES OVER
STATE LINES, IT WOULD SEEM TO FOLLOW A FORTIORI THAT FURTHER
CONSTITUTIONAL PROVISIONS WOULD BE REQUIRED TO AUTHORIZE ONE STATE TO
PROVIDE FOR THE COMPULSORY DELIVERY OF AN INNOCENT PERSON TO ANOTHER
STATE.  SEE IN RE ALLEN, SUPRA. 

THIS IS NOT GIVING THE CONSTITUTION A NIGGARDLY CONSTRUCTION.  I URGE
A LIBERAL CONSTRUCTION WHICH WILL RESPECT THE CIVIL RIGHTS OF THE
CITIZENS.  THIS RIGHT OF PEOPLE TO CHOOSE SUCH STATE AS THEY LIKE FOR
THEIR ABODE, TO REMAIN UNMOLESTED IN THEIR DWELLINGS, AND TO BE
PROTECTED AGAINST BEING WHISKED AWAY TO ANOTHER STATE (FN6) HAS BEEN,
UNTIL TODAY, ZEALOUSLY GUARDED.  UNTIL NOW, IT HAS BEEN PART AND PARCEL
OF THE CHERISHED FREEDOM OF MOVEMENT PROTECTED BY THE CONSTITUTION. 

I WOULD AFFIRM THE JUDGMENT ENTERED BY A UNANIMOUS VOTE OF THE
FLORIDA SUPREME COURT. 

FN1  THIS PROVISION IS IMPLEMENTED BY AN ACT OF CONGRESS.  18 U.S.C.
C. 209. 

FN2  SECTION 1073 PROVIDES:  "VIOLATIONS OF THIS SECTION MAY BE
PROSECUTED ONLY IN THE FEDERAL JUDICIAL DISTRICT IN WHICH THE ORIGINAL
CRIME WAS ALLEGED TO HAVE BEEN COMMITTED OR IN WHICH THE PERSON WAS
HELD IN CUSTODY OR CONFINEMENT." 

FN3  SEE H.R. REP. NO. 1458, 73D CONG., 2D SESS., P. 2; H.R. REP. NO.
1596, 73D CONG., 2D SESS., P. 2; HEMANS V. UNITED STATES, 163 F.2D 228,
238-239. 

FN4  IN SITUATIONS NO LESS IMPRESSIVE THAN THE PRESENT WE HAVE BARRED
STATE ACTION WHERE, AS HERE, CONGRESS HAS ACTED IN THE SAME FIELD. 
CHARLESTON & CAR.  R. CO. V. VARNVILLE CO., 237 U.S. 597; HINES V.
DAVIDOWITZ, 312 U.S. 52; PENNSYLVANIA V. NELSON, 350 U.S. 497.  IN
CHARLESTON & CAR.  R. CO. V. VARNVILLE CO., SUPRA, AT 604, MR. JUSTICE
HOLMES SPEAKING FOR THE COURT SAID: 

"WHEN CONGRESS HAS TAKEN THE PARTICULAR SUBJECT-MATTER IN HAND
COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION, AND A STATE LAW IS NOT TO
BE DECLARED A HELP BECAUSE IT ATTEMPTS TO GO FARTHER THAN CONGRESS HAS
SEEN FIT TO GO." 

FN5 THE REPORT OF COMMITTEE ON SECURING COMPULSORY ATTENDANCE OF NON
RESIDENT WITNESSES OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON
UNIFORM STATE LAWS, AS REPORTED IN 8 WIGMORE ON EVIDENCE, SEC. 2195(E),
STATES:  "THIS CHARACTER OF LEGISLATION IS NOT FREE FROM CONSTITUTIONAL
DIFFICULTIES, AND THE ONLY CASE WHICH WE HAVE FOUND IN WHICH THE
CONSTITUTIONALITY THEREOF HAS BEEN DIRECTLY UPHELD IS THE CASE OF
COMMONWEALTH OF MASSACHUSETTS V. KLAUS, 130 N.Y. SUPP. 713.  IN THE
CASE CITED THE CONSTITUTIONALITY OF THE NEW YORK STATUTES WAS UPHELD IN
AN OPINION BY JUDGE SCOTT, BUT THERE IS A STRONG DISSENTING OPINION BY
JUDGE LAUGHLIN." 

FN6  THE HARSHNESS OF THIS PROCEDURE IS EMPHASIZED BY A FEATURE OF
THIS EXTRADITION LAW ON WHICH THE FLORIDA SUPREME COURT HAS NOT YET
PASSED.  THE NEW YORK STATUTE (N.Y. CODE CRIM. PROC. SEC. 618-A; AND
SEE FLA. STAT., 1957, SEC. 942.02) GIVES THE WITNESS WHO IS EXTRADITED
ONLY $5 A DAY FOR HIS MAINTENANCE IN NEW YORK, A SUM PLAINLY INADEQUATE
IN LIGHT OF TODAY'S COST OF LIVING. 
..END :








HARRIS V. UNITED STATES 359 U.S. 19 


NO. 11.  ARGUED JANUARY 13-14, 1959 - DECIDED MARCH 2, 1959 - 248 F.2D
196, AFFIRMED. 


A TWO-COUNT INDICTMENT CHARGED PETITIONER WITH (1) THE PURCHASE OF 224
GRAINS OF HEROIN FROM AN UNSTAMPED PACKAGE, IN VIOLATION OF 26 U.S.C.
SEC. 4704(A); AND (2) RECEIVING AND CONCEALING THIS SAME DRUG, KNOWING
IT TO HAVE BEEN UNLAWFULLY IMPORTED, IN VIOLATION OF 21 U.S.C. SEC.
174.  AT THE TRIAL, THE GOVERNMENT INTRODUCED INTO EVIDENCE THE HEROIN
ITSELF AND TESTIMONY THAT PETITIONER HAD BEEN IN POSSESSION OF IT; AND
PETITIONER OFFERED NO EXPLANATION OF HIS POSSESSION OF THE SAME.  HELD:
IN VIEW OF THE SEPARATE STATUTORY PRESUMPTIONS, PROOF OF POSSESSION OF
UNSTAMPED HEROIN, IN THE ABSENCE OF EXPLANATION, WAS SUFFICIENT TO
SUPPORT A CONVICTION BY THE JURY ON EACH OF THE COUNTS AS COVERING
ENTIRELY SEPARATE OFFENSES; AND CONSECUTIVE SENTENCES OF FIVE YEARS'
IMPRISONMENT ON EACH COUNT WERE VALID WHERE BASED UPON SUCH SEPARATE
OFFENSES UNDER DIFFERENT SECTIONS OF THE NARCOTICS LAWS.  PP. 19-24. 

HARRIS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN THIS NARCOTICS CASE A TWO-COUNT INDICTMENT CHARGED PETITIONER WITH
(1) THE PURCHASE OF 224 GRAINS OF HEROIN FROM AN UNSTAMPED PACKAGE, IN
VIOLATION OF 26 U.S.C. SEC. 4704(A); (FN1) AND (2) RECEIVING AND
CONCEALING THIS SAME DRUG KNOWING IT TO HAVE BEEN UNLAWFULLY IMPORTED,
IN VIOLATION OF 21 U.S.C. SEC. 174.  (FN2)  THE GOVERNMENT INTRODUCED
INTO EVIDENCE THE HEROIN ITSELF, AND TESTIMONY THAT PETITIONER HAD BEEN
IN POSSESSION OF IT.  ON EACH COUNT IT RELIED, FOR PROOF OF THE
ELEMENTS OF THE OFFENSE, ON THE STATUTORY PRESUMPTIONS PROVIDED BY
CONGRESS.  WHILE PETITIONER TOOK THE STAND, HIS DEFENSE WAS AN ALIBI
AND THERE WAS THEREFORE A TOTAL ABSENCE OF ANY EXPLANATION BY HIM OF
HIS POSSESSION OF THE PROHIBITED DRUG.  UPON BEING FOUND GUILTY ON EACH
COUNT BY A JURY, ON AN INSTRUCTION THAT PROOF OF POSSESSION OF
UNSTAMPED HEROIN, IN THE ABSENCE OF EXPLANATION, MIGHT SUPPORT A
CONVICTION ON EACH OF THE CHARGES IN VIEW OF THE SEPARATE STATUTORY
PRESUMPTIONS, PETITIONER WAS SENTENCED TO CONSECUTIVE SENTENCES OF FIVE
YEARS' IMPRISONMENT AND A $1 FINE ON EACH COUNT.  ATTACK IS MADE NOT
ONLY ON THE VALIDITY OF THE INSTRUCTIONS BUT ALSO ON THE CONSECUTIVE
SENTENCES.  THE COURT OF APPEALS AFFIRMED, 248 F.2D 196 (C.A. 8TH CIR.,
1957).  IN VIEW OF THE IMPORTANCE OF THE QUESTION IN THE ENFORCEMENT OF
THE NARCOTIC LAWS, WE GRANTED CERTIORARI.  357 U.S. 935 (1958).  WE
AGREE WITH THE COURT OF APPEALS.  THIS DISPOSITION REQUIRES NEITHER A
DETAIL OF THE FACTS WHICH MAY BE FOUND IN THE OPINION OF THE COURT OF
APPEALS, SUPRA, NOR OF THE COURT'S INSTRUCTIONS, OF WHICH PETITIONER
NOW COMPLAINS.  (FN3) 

CONGRESS PROVIDED IN 1919 THAT BUYING NARCOTICS, EXCEPT IN OR FROM
THE ORIGINAL STAMPED PACKAGE, WAS AN OFFENSE (FN4) PUNISHABLE BY FINE
OF NOT MORE THAN $2,000 AND IMPRISONMENT FOR NOT MORE THAN FIVE YEARS. 
(FN5)  THE 1919 ACT SPECIFICALLY PROVIDED THAT "THE ABSENCE OF
APPROPRIATE TAX-PAID STAMPS  ...  SHALL BE PRIMA FACIE EVIDENCE OF A
VIOLATION OF THIS SECTION BY THE PERSON IN WHOSE POSSESSION SAME MAY BE
FOUND."  (FN6)  LONG BEFORE, ON FEBRUARY 9, 1909, CONGRESS HAD PROVIDED
THAT RECEIVING AND CONCEALING UNLAWFULLY IMPORTED NARCOTICS SHOULD
LIKEWISE BE AN OFFENSE.  THE ACT PROVIDED THAT ONCE THE DEFENDANT ON
TRIAL "IS SHOWN TO HAVE, OR TO HAVE HAD, POSSESSION OF THE NARCOTIC
DRUG SUCH POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE
CONVICTION UNLESS THE DEFENDANT SHALL EXPLAIN THE POSSESSION TO THE
SATISFACTION OF THE JURY."  (FN7) 

PETITIONER DOES NOT CHALLENGE THE POWER OF THE CONGRESS TO ADOPT
THESE STATUTES, NOR DOES HE ATTACK THE SEPARATENESS OF THE OFFENSES
CREATED, THE DISTINCT PUNISHMENTS PROVIDED, NOR THE PRESUMPTIONS
THEREIN AUTHORIZED.  BUT HE SAYS THAT WHERE THE PRESUMPTIONS ARE
COUPLED WITH A SINGLE ACT OF POSSESSION OF UNSTAMPED NARCOTICS
CUMULATIVE SENTENCES ARE NOT PERMISSIBLE AND THE ONES HERE IMPOSED MUST
FALL UNDER THE DOCTRINE OF BLOCKBURGER V. UNITED STATES, 284 U.S. 299
(1932).  WE THINK NOT. 

AS WE SEE IT, GORE V. UNITED STATES, 357 U.S. 386 (1958), CONTROLS
THE QUESTION HERE.  THERE, CONSECUTIVE SENTENCES WERE UPHELD ON THREE
COUNTS OF AN INDICTMENT CHARGING (1) SALE OF NARCOTICS NOT PURSUANT TO
A WRITTEN ORDER FORM; (2) PURCHASE, SALE AND DISTRIBUTION NOT IN OR
FROM A STAMPED PACKAGE; AND (3) TRANSPORTATION AND CONCEALMENT OF
ILLEGALLY IMPORTED NARCOTICS.  THE THREE OFFENSES DERIVED FROM ONE
TRANSACTION, A SALE OF NARCOTICS.  IT WILL BE NOTED THAT TWO OF THE
OFFENSES THERE CHARGED ARE PRESENT HERE WHERE THE ONE FACT PROVED BY
DIRECT EVIDENCE IS POSSESSION, RATHER THAN A SALE.  THE COURT REASONED
THAT "THREE VIOLATIONS OF THREE SEPARATE OFFENSES CREATED BY CONGRESS
AT THREE DIFFERENT TIMES," INDICATED A CLEAR AND CONTINUING PURPOSE ON
ITS PART "OF DEALING MORE AND MORE STRICTLY WITH, AND SEEKING TO
THROTTLE MORE AND MORE BY DIFFERENT LEGAL DEVICES, THE TRAFFIC IN
NARCOTICS.  BOTH IN THE UNFOLDING OF THE SUBSTANTIVE PROVISIONS OF LAW
AND IN THE SCALE OF PUNISHMENTS, CONGRESS HAS MANIFESTED AN ATTITUDE
NOT OF LENITY BUT OF SEVERITY TOWARD VIOLATION OF THE NARCOTICS LAWS." 
SUPRA, AT 391.  (FN8)  WE SEE NO SIGNIFICANT DIFFERENCES BETWEEN THE
TWO CASES.  THE DIRECT PROOF IN GORE WAS OF A SALE OF HEROIN WITHOUT A
WRITTEN ORDER CHARGED IN ONE OF THE THREE COUNTS UPON WHICH THE
CONSECUTIVE SENTENCES WERE BASED.  RESORT TO THE STATUTORY PRESUMPTIONS
WAS MADE TO ESTABLISH THE OTHER TWO COUNTS ON WHICH THOSE SENTENCES
WERE ASSESSED.  HERE THE DIRECT EVIDENCE PROVED POSSESSION OF THE
UNSTAMPED DRUG, AND RESORT WAS MADE TO THE STATUTORY PRESUMPTIONS FOR
SUPPORT OF THE TWO OFFENSES CHARGED. 

PETITIONER INSISTS THAT EACH OFFENSE HERE REQUIRES PROOF OF ONLY THE
SINGLE FACT OF POSSESSION, WHICH BRINGS IT WITHIN THE RULE IN
BLOCKBURGER, SUPRA.  HOWEVER, PETITIONER COMPLETELY OVERLOOKS THE FACT
THAT THE "ACTS OR TRANSACTIONS" PROHIBITED BY THE RESPECTIVE STATUTES
CANNOT BE EQUATED TO POSSESSION ALONE.  LET US ANALYZE THE OFFENSES. 
UNDER THE FIRST COUNT OF THE INDICTMENT, THE PROSECUTION MUST PROVE A
PURCHASE OF NARCOTICS, OTHER THAN IN OR FROM THE ORIGINAL STAMPED
PACKAGE.  IN ORDER TO ESTABLISH THESE ULTIMATE FACTS, THE PROSECUTOR
MAY PUT ON DIRECT EVIDENCE OF POSSESSION OF THE UNSTAMPED HEROIN AND
THE STATUTORY PRESUMPTION OF SEC. 4704(A) THEN HAS THE EFFECT OF
ESTABLISHING, PRIMA FACIE, THAT THERE WAS IN FACT A PURCHASE AND THAT
THE PURCHASE WAS OTHER THAN IN OR FROM THE ORIGINAL STAMPED PACKAGE. 
IN THIS CASE, THE HEROIN ITSELF WAS INTRODUCED IN EVIDENCE, THUS THE
JURY COULD DETERMINE WHETHER OR NOT IT WAS STAMPED.  SIMILARLY, UNDER
THE SECOND COUNT, THE PROSECUTION WAS OBLIGATED TO PROVE THREE ULTIMATE
FACTS:  (1) THAT THE HEROIN WAS RECEIVED AND CONCEALED; (2) THAT IT HAD
BEEN IMPORTED CONTRARY TO LAW; AND (3) THAT PETITIONER KNEW OF THE
UNLAWFUL IMPORTATION.  AFTER PUTTING ON DIRECT EVIDENCE OF THE
POSSESSION, THE PROSECUTION WAS AIDED BY THE STATUTORY PRESUMPTION OF
SEC. 174 THAT THE ULTIMATE FACTS OF THE VIOLATION - ENTIRELY DIFFERENT,
IT MUST BE NOTED, FROM THOSE OF THE FIRST COUNT - WERE ALSO PRESENT. 

THUS, THE VIOLATION, AS DISTINGUISHED FROM THE DIRECT EVIDENCE
OFFERED TO PROVE THAT VIOLATION, WAS DISTINCTLY DIFFERENT UNDER EACH OF
THE RESPECTIVE STATUTES.  INSTEAD OF LIMITING HIS PROOF TO AN ALIBI,
PETITIONER COULD, BY OFFERING EVIDENCE TENDING TO CONTROVERT ONE
PRESUMPTION OR THE OTHER AS TO THE ULTIMATE FACTS, HAVE EARNED AN
ACQUITTAL ON EITHER COUNT AND STILL HAVE BEEN FOUND GUILTY ON THE
OTHER.  FURTHERMORE, TO TAKE ADVANTAGE OF THE PRESUMPTION OF SEC. 174
IT IS NECESSARY ONLY TO PROVE POSSESSION BY DIRECT EVIDENCE; WHEREAS TO
TAKE ADVANTAGE OF THE PRESUMPTION OF SEC. 4704(A) IT IS NECESSARY TO
PROVE BY DIRECT EVIDENCE THAT THE NARCOTIC WAS UNSTAMPED AS WELL AS
THAT IT WAS IN THE DEFENDANT'S POSSESSION.  IT FOLLOWS, EVEN IF THE
BLOCKBURGER TEST WERE APPLICABLE, THAT THE OFFENSES WERE SEPARATE AND
THAT CONSECUTIVE SENTENCES COULD BE IMPOSED ON EACH COUNT. 

WE HAVE CONSIDERED THE OTHER CONTENTIONS RAISED BY PETITIONER AND
FOUND THEM TO BE WITHOUT MERIT.  THE JUDGMENT OF THE COURT OF APPEALS
IS AFFIRMED. 

FN1  SECTION 4704(A) OF THE INTERNAL REVENUE CODE OF 1954, WHICH
PROVIDES AS FOLLOWS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO PURCHASE, SELL, DISPENSE, OR
DISTRIBUTE NARCOTIC DRUGS EXCEPT IN THE ORIGINAL STAMPED PACKAGE OR
FROM THE ORIGINAL STAMPED PACKAGE; AND THE ABSENCE OF APPROPRIATE
TAXPAID STAMPS FROM NARCOTIC DRUGS SHALL BE PRIMA FACIE EVIDENCE OF A
VIOLATION OF THIS SUBSECTION BY THE PERSON IN WHOSE POSSESSION THE SAME
MAY BE FOUND." 

SEE ALSO SEC. 7237 OF THE INTERNAL REVENUE CODE OF 1954, WHICH AT THE
TIME OF THIS TRIAL PROVIDED A MAXIMUM PENALTY, FOR FIRST OFFENDERS, OF
A $2,000 FINE AND IMPRISONMENT FOR FIVE YEARS. 

FN2  SECTION 2(C) OF THE NARCOTIC DRUGS IMPORT AND EXPORT ACT, 35
STAT. 614, AS AMENDED BY THE ACT OF NOVEMBER 2, 1951, 65 STAT. 767,
WHICH PROVIDED IN PERTINENT PART AS FOLLOWS: 

"WHOEVER  ...  RECEIVES, CONCEALS,  ...  OR IN ANY MANNER FACILITATES
THE TRANSPORTATION, CONCEALMENT, OR SALE OF ANY ...  NARCOTIC DRUG
AFTER BEING IMPORTED OR BROUGHT IN, KNOWING THE SAME TO HAVE BEEN
IMPORTED CONTRARY TO LAW,  ...  SHALL BE FINED NOT MORE THAN $2,000 AND
IMPRISONED NOT LESS THAN TWO OR MORE THAN FIVE YEARS  ...  . 

"WHENEVER ON TRIAL FOR A VIOLATION OF THIS SUBDIVISION THE DEFENDANT
IS SHOWN TO HAVE OR TO HAVE HAD POSSESSION OF THE NARCOTIC DRUG, SUCH
POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION
UNLESS THE DEFENDANT EXPLAINS THE POSSESSION TO THE SATISFACTION OF THE
JURY." 

FN3  PETITIONER MADE NO OBJECTION TO THE COURT'S CHARGE AT THE TIME
OF THE TRIAL.  SEE FED. RULES CRIM. PROC., 30. 

FN4  40 STAT. 1131. 

FN5  38 STAT. 789. 

FN6  40 STAT. 1131. 

FN7  35 STAT. 614. 

FN8  ALTHOUGH ENACTED SUBSEQUENT TO THIS CONVICTION, THE CONTINUING
PURPOSE OF CONGRESS TO WIPE OUT THE NARCOTICS TRAFFIC IS SHOWN IN SEC.
201 OF THE NARCOTIC CONTROL ACT OF 1956, 70 STAT. 572, 18 U.S.C. (1952
ED., SUPP. V) SEC. 1402, WHOLLY OUTLAWING ANY POSSESSION OF HEROIN. 
..END :





















AHO V. JACOBSEN 359 U.S. 25 


NO. 36.  DECIDED MARCH 2, 1959 - REPORTED BELOW:  249 F.2D 309. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO THE
DISTRICT COURT FOR RETRIAL ON THE ADMIRALTY SIDE. 

AHO V. JACOBSEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR RETRIAL ON
THE ADMIRALTY SIDE, ROMERO V. INTERNATIONAL TERMINAL OPERATING CO., 358
U.S. 354, IN LIGHT OF KERMAREC V. COMPAGNIE GENERALE TRANSATLANTIQUE,
358 U.S. 625. 
..END :










MCDANIEL V. THE LISHOLT 359 U.S. 26 


NO. 424.  DECIDED MARCH 2, 1959 - REPORTED BELOW:  257 F.2D 538. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO THE
DISTRICT COURT FOR A NEW TRIAL. 

MCDANIEL V. THE LISHOLT ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IS VACATED. 
THE CASE IS REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL IN LIGHT OF
KERMAREC V. COMPAGNIE GENERALE TRANSATLANTIQUE, 358 U.S. 625. 
..END :











NEW JERSEY V. UNITED STATES 359 U.S. 27 


NO. 621.  DECIDED MARCH 2, 1959* - 168 F. SUPP. 324, AFFIRMED. 

*TOGETHER WITH NO. 622, COUNTY OF BERGEN ET AL. V. UNITED STATES ET
AL., ON APPEAL FROM THE SAME COURT. 


NEW JERSEY ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :















BROWN-FORMAN DISTILLERS V. COLLECTOR OF REVENUE 359 U.S. 28 


NO. 142.  DECIDED MARCH 2, 1959 - REPORTED BELOW:  234 LA. 651, 101 SO.
2D 70. 


APPEAL DISMISSED AND CERTIORARI DENIED. 

BROWN-FORMAN DISTILLERS CORP. V. COLLECTOR OF REVENUE. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR
CERTIORARI, CERTIORARI IS DENIED. 
..END :













ET&WNC TRANSPORTATION CO. V. CURRIE 359 U.S. 28 


NO. 524.  DECIDED MARCH 2, 1959 - 248 N.C. 560, 104 S.E.2D 403,
AFFIRMED. 


ET&WNC TRANSPORTATION CO. V. CURRIE, COMMISSIONER OF REVENUE OF NORTH
CAROLINA. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  NORTHWESTERN STATES PORTLAND CEMENT CO. V.
MINNESOTA, AND WILLIAMS V. STOCKHAM VALVES & FITTINGS, INC., 358 U.S.
450. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE WHITTAKER AND MR. JUSTICE
STEWART DISSENT FOR THE REASONS STATED IN THE DISSENTING OPINIONS IN
THESE CASES. 
..END :











UNITED STATES V. RADIO CORPORATION OF AMERICA 358 U.S. 334 


NO. 54.  ARGUED DECEMBER 8, 1958 - DECIDED FEBRUARY 24, 1959 - 158 F.
SUPP. 333, JUDGMENT VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS. 


APPROVAL BY THE FEDERAL COMMUNICATIONS COMMISSION OF APPELLEES'
AGREEMENT TO EXCHANGE THEIR TELEVISION STATION IN CLEVELAND FOR ONE IN
PHILADELPHIA, WHICH HAS SINCE BEEN CONSUMMATED, DOES NOT BAR THIS
INDEPENDENT CIVIL ACTION BY THE GOVERNMENT UNDER SEC. 4 OF THE SHERMAN
ACT ATTACKING THE EXCHANGE AS BEING IN FURTHERANCE OF A CONSPIRACY TO
VIOLATE SEC. 1 OF THAT ACT.  PP. 335-353. 

1.  THE LEGISLATIVE HISTORY OF THE COMMUNICATIONS ACT OF 1934, AS
AMENDED, REVEALS THAT THE COMMISSION WAS NOT GIVEN THE POWER TO DECIDE
ANTITRUST ISSUES AS SUCH AND THAT COMMISSION ACTION WAS NOT INTENDED TO
PREVENT ENFORCEMENT OF THE ANTITRUST LAWS IN FEDERAL COURTS.  PP. 339
346. 

(A)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE 1952
AMENDMENTS TO THE ACT REPEALED THE LAST SENTENCE OF SEC. 311, WHICH
SPECIFICALLY PROVIDED THAT THE GRANTING OF A LICENSE SHOULD NOT ESTOP
THE UNITED STATES OR ANY AGGRIEVED PERSON FROM PROCEEDING AGAINST THE
LICENSEE UNDER THE ANTITRUST LAWS.  PP. 344-345. 

(B)  THE LAST SENTENCE OF SEC. 311 PRIOR TO ITS REPEAL IN 1952 SHOULD
NOT BE CONSTRUED NARROWLY AS BEING INTENDED TO INSURE ONLY THAT THE
GRANTING OF A LICENSE WOULD NOT ESTOP THE GOVERNMENT FROM PROSECUTING
ANTITRUST VIOLATIONS SUBSEQUENT TO THE TRANSACTION GIVING RISE TO THE
LICENSE PROCEEDING, OR OF WHICH THE TRANSACTION WAS MERELY A SMALL
PART.  P. 345. 

2.  THERE BEING NO PERVASIVE REGULATORY SCHEME OR RATE STRUCTURE
INVOLVED, THE SCHEME OF THE ACT DOES NOT REQUIRE APPLICATION OF THE
DOCTRINE OF PRIMARY JURISDICTION SO AS TO PERMIT THE GOVERNMENT TO
ATTACK THE EXCHANGE TRANSACTION AS VIOLATIVE OF THE SHERMAN ACT ONLY BY
INTERVENTION IN THE PROCEEDINGS BEFORE THE COMMISSION OR BY JUDICIAL
REVIEW OF THE COMMISSION'S DECISION.  PP. 346-352. 

3.  SINCE THE COMMISSION HAS NO POWER TO DECIDE ANTITRUST QUESTIONS,
THIS INDEPENDENT ANTITRUST SUIT IS NOT BARRED BY COLLATERAL ESTOPPEL,
RES JUDICATA OR LACHES.  P. 352. 

UNITED STATES V. RADIO CORPORATION OF AMERICA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

APPELLEES, RADIO CORPORATION OF AMERICA AND NATIONAL BROADCASTING
COMPANY, ARE DEFENDANTS IN THIS CIVIL ANTITRUST ACTION BROUGHT BY THE
GOVERNMENT UNDER SEC. 4 OF THE SHERMAN ACT, 15 U.S.C. SEC. 4.  AFTER
HOLDING A PRELIMINARY HEARING ON THREE OF APPELLEES' AFFIRMATIVE
DEFENSES TO THAT ACTION, THE FEDERAL DISTRICT JUDGE DISMISSED THE
COMPLAINT.  158 F. SUPP.  333.  THE GOVERNMENT APPEALED DIRECTLY TO
THIS COURT UNDER THE EXPEDITING ACT, 15 U.S.C.  SEC. 29.  THE PRINCIPAL
QUESTION PRESENTED IS WHETHER APPROVAL BY THE FEDERAL COMMUNICATIONS
COMMISSION OF APPELLEES' AGREEMENT TO EXCHANGE THEIR CLEVELAND
TELEVISION STATION FOR ONE IN PHILADELPHIA BARS THIS INDEPENDENT ACTION
BY THE GOVERNMENT WHICH ATTACKS THE EXCHANGE AS BEING IN FURTHERANCE OF
A CONSPIRACY TO VIOLATE THE FEDERAL ANTITRUST LAWS. 

THE GOVERNMENT'S COMPLAINT GENERALLY ALLEGED THE FOLLOWING FACTS.  IN
1954, NATIONAL BROADCASTING COMPANY (NBC), A WHOLLY OWNED SUBSIDIARY OF
RADIO CORPORATION OF AMERICA (RCA), OWNED FIVE VERY HIGH FREQUENCY
(VHF) TELEVISION STATIONS.  THE STATIONS WERE LOCATED IN THE FOLLOWING
MARKET AREAS:  NEW YORK, WHICH IS THE COUNTRY'S LARGEST MARKET;
CHICAGO, SECOND; LOS ANGELES, THIRD; CLEVELAND, TENTH; AND WASHINGTON
D.C., ELEVENTH.  ACCORDING TO THE GOVERNMENT'S ALLEGATIONS, IN MARCH
1954, NBC AND RCA ORIGINATED A CONTINUING CONSPIRACY TO ACQUIRE
STATIONS IN FIVE OF THE EIGHT LARGEST MARKET AREAS IN THE COUNTRY. 
SINCE PHILADELPHIA IS THE COUNTRY'S FOURTH LARGEST MARKET AREA,
ACQUISITION OF A PHILADELPHIA STATION IN EXCHANGE FOR APPELLEES'
CLEVELAND OR WASHINGTON STATION WOULD ACHIEVE ONE GOAL OF THE
CONSPIRACY.  (FN1) 

ONE PHILADELPHIA STATION, WPTZ, WAS OWNED BY WESTINGHOUSE
BROADCASTING COMPANY.  THIS STATION AND A WESTINGHOUSE-OWNED STATION IN
BOSTON WERE AFFILIATED WITH THE NBC NETWORK.  IN ADDITION, WESTINGHOUSE
DESIRED NBC AFFILIATION FOR A STATION TO BE ACQUIRED IN PITTSBURGH.  IN
ORDER TO FORCE WESTINGHOUSE TO EXCHANGE ITS PHILADELPHIA STATION FOR
NBC'S CLEVELAND STATION, IT IS ALLEGED THAT NBC THREATENED WESTINGHOUSE
WITH LOSS OF THE NETWORK AFFILIATION OF ITS BOSTON AND PHILADELPHIA
STATIONS, AND THREATENED TO WITHHOLD AFFILIATION FROM ITS PITTSBURGH
STATION TO BE ACQUIRED.  NBC ALSO THREATENED TO WITHHOLD NETWORK
AFFILIATION FROM ANY NEW VHF OR UHF (ULTRA HIGH FREQUENCY) STATIONS
WHICH WESTINGHOUSE MIGHT ACQUIRE.  BY THUS USING ITS LEVERAGE AS A
NETWORK, NBC IS ALLEGED TO HAVE FORCED WESTINGHOUSE TO AGREE TO THE
EXCHANGE CONTRACT UNDER CONSIDERATION.  UNDER THE TERMS OF THAT
CONTRACT NBC WAS TO ACQUIRE THE PHILADELPHIA STATION, WHILE
WESTINGHOUSE WAS TO ACQUIRE NBC'S CLEVELAND STATION PLUS THREE MILLION
DOLLARS. 

THE GOVERNMENT ASKED THAT THE CONSPIRACY BE DECLARED VIOLATIVE OF
SEC. 1 OF THE SHERMAN ACT, 15 U.S.C. SEC. 1, THAT THE APPELLEES BE
DIVESTED OF SUCH ASSETS AS THE DISTRICT COURT DEEMED APPROPRIATE, THAT
"SUCH OTHER AND ADDITIONAL RELIEF AS MAY BE PROPER" BE AWARDED, AND
THAT THE GOVERNMENT RECOVER COSTS OF THE SUIT. 

APPELLEES' AFFIRMATIVE DEFENSES AROSE OUT OF THE FACT THAT THE
EXCHANGE HAD BEEN APPROVED BY THE FEDERAL COMMUNICATIONS COMMISSION. 
(FN2)  FCC APPROVAL WAS REQUIRED UNDER SEC. 310(B) OF THE
COMMUNICATIONS ACT OF 1934, 48 STAT. 1086, AS AMENDED, 66 STAT. 716, 47
U.S.C. SEC.  310(B).  UNDER THAT SECTION, APPELLEES FILED APPLICATIONS
SETTING FORTH THE TERMS OF THE TRANSACTION AND THE REASONS FOR
REQUESTING THE EXCHANGE.  THE COMMISSION INSTITUTED PROCEEDINGS TO
DETERMINE WHETHER THE EXCHANGE MET THE STATUTORY REQUIREMENTS OF SEC.
310, THAT THE "PUBLIC INTEREST, CONVENIENCE, AND NECESSITY" WOULD BE
SERVED.  THEY WERE NOT ADVERSARY PROCEEDINGS.  AFTER EXTENSIVE
INVESTIGATION OF THE TRANSACTION, THE COMMISSION WAS STILL NOT
SATISFIED THAT THE EXCHANGE WOULD MEET THE STATUTORY STANDARDS, AND,
OVER THREE DISSENTS, ISSUED LETTERS SEEKING ADDITIONAL INFORMATION ON
VARIOUS SUBJECTS, INCLUDING ANTITRUST PROBLEMS, UNDER SEC. 309(B) OF
THE ACT.  AFTER RECEIVING ANSWERS TO THE LETTERS, THE COMMISSION,
WITHOUT HOLDING A HEARING, ON DECEMBER 21, 1955, GRANTED THE
APPLICATION TO EXCHANGE STATIONS.  (FN3) 

IT WAS STIPULATED BELOW THAT IN PASSING UPON THE APPLICATION, THE
COMMISSION HAD ALL THE INFORMATION BEFORE IT WHICH HAS NOW BEEN MADE
THE BASIS OF THE GOVERNMENT'S COMPLAINT.  IT FURTHER APPEARS THAT
DURING THE FCC PROCEEDINGS THE JUSTICE DEPARTMENT WAS INFORMED AS TO
THE EVIDENCE IN THE FCC'S POSSESSION.  IT WAS FURTHER STIPULATED, AND
WE ASSUME, THAT THE FCC DECIDED ALL ISSUES RELATIVE TO THE ANTITRUST
LAWS THAT WERE BEFORE IT, AND THAT THE JUSTICE DEPARTMENT HAD THE RIGHT
TO REQUEST A HEARING UNDER SEC. 309(B), TO FILE A PROTEST UNDER SEC.
309(C), TO SEEK A REHEARING UNDER SEC. 405, AND TO SEEK JUDICIAL REVIEW
OF THE DECISION UNDER SEC. 402(B).  SEE FAR EAST CONFERENCE V. UNITED
STATES, 342 U.S. 570, 576; U.S. EX REL. CHAPMAN V. FEDERAL POWER
COMM'N, 345 U.S. 153, 155, 156.  THE DEPARTMENT OF JUSTICE TOOK NONE OF
THESE ACTIONS.  ACCORDINGLY, ON JANUARY 22, 1956, AFTER THE PERIOD IN
WHICH THE DEPARTMENT COULD HAVE SOUGHT REVIEW HAD EXPIRED, NBC AND
WESTINGHOUSE CONSUMMATED THE EXCHANGE TRANSACTION ACCORDING TO THEIR
CONTRACT.  THE DEPARTMENT DID NOT FILE THE PRESENT COMPLAINT UNTIL
DECEMBER 4, 1956, OVER TEN MONTHS LATER. 

AGAINST THIS BACKGROUND, APPELLEES ASSERT THAT THE FCC HAD AUTHORITY
TO PASS ON THE ANTITRUST QUESTIONS PRESENTED, AND, IN ANY CASE, THAT
THE REGULATORY SCHEME OF THE COMMUNICATIONS ACT HAS SO DISPLACED THAT
OF THE SHERMAN ACT THAT THE FCC HAD PRIMARY JURISDICTION TO LICENSE THE
EXCHANGE TRANSACTION, WITH THE RESULT THAT ANY ATTACK FOR ANTITRUST
REASONS ON THE EXCHANGE TRANSACTION MUST HAVE BEEN BY DIRECT REVIEW OF
THE LICENSE GRANT.  RELYING ON THIS PREMISE, THEY THEN CONTEND THAT THE
ONLY METHOD AVAILABLE TO THE GOVERNMENT FOR REDRESSING ITS ANTITRUST
GRIEVANCES WAS TO INTERVENE IN THE FCC PROCEEDINGS; THAT SINCE IT DID
NOT, THE ANTITRUST ISSUES WERE DETERMINED ADVERSELY TO IT WHEN THE
EXCHANGE WAS APPROVED, SO THAT IT IS BARRED BY PRINCIPLES OF COLLATERAL
ESTOPPEL AND RES JUDICATA; AND THAT IN ANY CASE THE LONG DELAY BETWEEN
APPROVAL OF THE EXCHANGE AND FILING OF THIS SUIT BARS THE SUIT BECAUSE
OF LACHES. 

                                        I. 

WHETHER THESE CONTENTIONS ARE TO PREVAIL DEPENDS SUBSTANTIALLY UPON
THE EXTENT TO WHICH CONGRESS AUTHORIZED THE FCC TO PASS ON ANTITRUST
QUESTIONS, AND THIS IN TURN REQUIRES EXAMINATION OF THE RELEVANT
LEGISLATIVE HISTORY.  TWO SECTIONS OF THE COMMUNICATIONS ACT OF 1934,
48 STAT. 1064, AS AMENDED, 47 U.S.C. SEC. 151 ET SEQ., DEAL
SPECIFICALLY WITH ANTITRUST CONSIDERATIONS, SECTIONS 311 AND 313: 

"SEC. 311.  THE COMMISSION IS HEREBY DIRECTED TO REFUSE A STATION
LICENSE AND/OR THE PERMIT HEREINAFTER REQUIRED FOR THE CONSTRUCTION OF
A STATION TO ANY PERSON (OR TO ANY PERSON DIRECTLY OR INDIRECTLY
CONTROLLED BY SUCH PERSON) WHOSE LICENSE HAS BEEN REVOKED BY A COURT
UNDER SECTION 313. 

     *         *         *         *         * 

"SEC. 313.  ALL LAWS OF THE UNITED STATES RELATING TO UNLAWFUL
RESTRAINTS AND MONOPOLIES AND TO COMBINATIONS, CONTRACTS, OR AGREEMENTS
IN RESTRAINT OF TRADE ARE HEREBY DECLARED TO BE APPLICABLE TO THE
MANUFACTURE AND SALE OF AND TO TRADE IN RADIO APPARATUS AND DEVICES
ENTERING INTO OR AFFECTING INTERSTATE OR FOREIGN COMMERCE AND TO
INTERSTATE OR FOREIGN RADIO COMMUNICATIONS.  WHENEVER IN ANY SUIT,
ACTION, OR PROCEEDING, CIVIL OR CRIMINAL, BROUGHT UNDER THE PROVISIONS
OF ANY OF SAID LAWS OR IN ANY PROCEEDINGS BROUGHT TO ENFORCE OR TO
REVIEW FINDINGS AND ORDERS OF THE FEDERAL TRADE COMMISSION OR OTHER
GOVERNMENTAL AGENCY IN RESPECT OF ANY MATTERS AS TO WHICH SAID
COMMISSION OR OTHER GOVERNMENTAL AGENCY IS BY LAW AUTHORIZED TO ACT,
ANY LICENSEE SHALL BE FOUND GUILTY OF THE VIOLATION OF THE PROVISIONS
OF SUCH LAWS OR ANY OF THEM, THE COURT, IN ADDITION TO THE PENALTIES
IMPOSED BY SAID LAWS, MAY ADJUDGE, ORDER, AND/OR DECREE THAT THE
LICENSE OF SUCH LICENSEE SHALL, AS OF THE DATE THE DECREE OR JUDGMENT
BECOMES FINALLY EFFECTIVE OR AS OF SUCH OTHER DATE AS THE SAID DECREE
SHALL FIX, BE REVOKED AND THAT ALL RIGHTS UNDER SUCH LICENSE SHALL
THEREUPON CEASE: PROVIDED, HOWEVER, THAT SUCH LICENSEE SHALL HAVE THE
SAME RIGHT OF APPEAL OR REVIEW AS IS PROVIDED BY LAW IN RESPECT OF
OTHER DECREES AND JUDGMENTS OF SAID COURT." 

THESE PROVISIONS WERE TAKEN FROM THE RADIO ACT OF 1927.  (FN4)  THEY
APPEAR TO HAVE ORIGINATED IN A BILL DRAFTED BY CONGRESSMAN WHITE OF
MAINE, H.R. 5589, 69TH CONG., 1ST SESS. WHAT IS NOW SEC. 311 APPEARED
AS THE THIRD PARAGRAPH OF SEC. 2(C) (FN5) OF THAT BILL, WHILE WHAT IS
NOW SEC. 313 APPEARED AS SEC. 2(G).  (FN6)  IN THE HEARINGS ON THE BILL
BEFORE THE HOUSE COMMITTEE, CONGRESSMAN REID OF ILLINOIS ASKED JUDGE
DAVIS, DEPARTMENT OF COMMERCE REPRESENTATIVE, WHETHER THE SECRETARY OF
COMMERCE (FN7) HAD ANY DISCRETION TO REFUSE A LICENSE UNDER SEC.
2(C)(NOW SEC. 311) TO A PARTY WHICH THE SECRETARY BELIEVED TO BE
VIOLATING THE ANTITRUST LAWS.  THE FOLLOWING COLLOQUY ENSUED:  (FN8) 

JUDGE DAVIS.  "HE HAS NO DISCRETION UNDER THIS ACT." 

CONGRESSMAN REID.  "THEY HAVE TO BE FOUND GUILTY FIRST; IS THAT THE
IDEA?" 

CONGRESSMAN WHITE.  "YES.  IN OTHER WORDS, I TRIED TO GET AWAY FROM
PLACING UPON THE SECRETARY THE DETERMINATION OF A JUDICIAL QUESTION OF
THAT CHARACTER.  THAT INVOLVES, OF COURSE, A DETERMINATION AS TO THE
FACTS; IT REQUIRES A KNOWLEDGE OF THE LAW AND IT REQUIRES AN
APPLICATION OF THE LAW TO THE FACTS, AND THEN IT REQUIRES THE EXERCISE
OF JUDICIAL POWERS, IF YOU LEAVE THAT IN HIS DISCRETION, AND I TRIED TO
LIFT IT AWAY FROM THE SECRETARY." 

LATER ON, THE QUESTION AROSE AS TO WHAT GROUNDS WERE AVAILABLE TO THE
SECRETARY TO REVOKE LICENSES UNDER SEC. 2(F)(NOW SEC. 312).  AFTER
CONGRESSMAN WHITE MENTIONED ONE STATUTORY GROUND, CONGRESSMAN REID
OBSERVED:  (FN9) 

"YES; BUT YOU DO NOT INCLUDE UNLAWFUL COMBINATIONS AND MONOPOLIES AND
CONTRACTS OR AGREEMENTS IN RESTRAINT OF TRADE.  THAT IS NOT COVERED." 

CONGRESSMAN WHITE.  "NO; NOT IN THAT SECTION." 

CONGRESSMAN DAVIS OF TENNESSEE.  "THOSE ARE COVERED IN 'G' (NOW SEC.
313)." 

CONGRESSMAN WHITE.  "THAT IS A JUDICIAL QUESTION AND WE HAVE LEFT IT
TO THE COURTS TO PASS ON THAT." 

THIS FAILURE TO INCLUDE A PROVISION PERMITTING A REFUSAL OF A LICENSE
FOR ANTITRUST VIOLATIONS IN THE ABSENCE OF A JUDICIAL DETERMINATION
CAUSED CONGRESSMAN DAVIS TO INSERT A LENGTHY MINORITY REPORT ON H.R.
9108, WHICH WAS OLD H.R. 5589 REINTRODUCED BY CONGRESSMAN WHITE. 
(FN10)  CONSEQUENTLY, WHEN THE BILL (THEN NUMBERED H.R. 9971) REACHED
THE FLOOR OF THE HOUSE, CONGRESSMAN DAVIS ATTEMPTED TO INSERT A NUMBER
OF AMENDMENTS WHICH WOULD HAVE STRENGTHENED THE ANTITRUST ASPECTS OF
THE BILL.  SEE 67 CONG. REC. 5484, 5485.  ALL WERE DEFEATED, INCLUDING
AN AMENDMENT TO SEC. 2(C)(NOW SEC. 311) WHICH WOULD HAVE REQUIRED
REFUSAL OF A LICENSE TO ANY COMPANY "FOUND BY ANY FEDERAL COURT OR THE
COMMISSION TO HAVE BEEN UNLAWFULLY MONOPOLIZING" RADIO COMMUNICATION. 
SEE 67 CONG. REC. 5501-5504, 5555. 

THUS, IN THE SENATE CONSIDERATION OF A VERSION OF THE BILL, WHEN
ASKED WHETHER THERE WAS "ANYTHING IN THE BILL PROVIDING IN CASE THE
APPLICANT FOR A PERMIT IS FOUND TO BE ACTING IN VIOLATION OF THE
SHERMAN ANTITRUST LAW OR CONTROLS A MONOPOLY THAT THE COMMISSION MAY
PASS UPON THE QUESTION," SENATOR DILL OF WASHINGTON, WHO WAS IN CHARGE
OF THE BILL IN THE SENATE, REPLIED:  (FN11) 

"THE BILL PROVIDES THAT IN CASE ANYBODY HAS BEEN CONVICTED UNDER THE
SHERMAN ANTITRUST LAW OR ANY OTHER LAW RELATING TO MONOPOLY HE SHALL BE
DENIED A LICENSE; BUT THE BILL DOES NOT ATTEMPT TO MAKE THE COMMISSION
THE JUDGE AS TO WHETHER OR NOT CERTAIN CONDITIONS CONSTITUTE A
MONOPOLY; IT RATHER LEAVES THAT TO THE COURT." 

CONGRESS ADJOURNED BEFORE ANY ACTION COULD BE TAKEN ON THE BILL AT
THAT SESSION.  AT THE NEXT SESSION, A CONFERENCE COMMITTEE REPORTED OUT
THE VERSION OF THE BILLS WHICH BECAME THE RADIO ACT OF 1927, WITH NOW
SEC. 311 BEING SEC. 13 OF THE ACT AND NOW SEC. 313 BEING SEC. 15 OF THE
ACT, DESPITE THE VIGOROUS BUT UNSUCCESSFUL OPPOSITION OF CONGRESSMAN
DAVIS IN THE HOUSE, SEE, E.G., 68 CONG. REC. 2577, AND SENATOR PITTMAN
OF NEVADA IN THE SENATE.  SEE, E.G., 68 CONG. REC. 3032, 3034. 

ONLY ONE CHANGE WAS MADE IN THOSE TWO SECTIONS WHEN THEY WERE
INCORPORATED INTO THE COMMUNICATIONS ACT.  SECTION 311 WAS MODIFIED
MERELY TO AUTHORIZE RATHER THAN TO REQUIRE THE REVOCATION OF A LICENSE
BY THE COMMISSION AFTER A COURT HAD FOUND A RADIO BROADCASTER IN
VIOLATION OF THE ANTITRUST LAWS, BUT HAD NOT ORDERED ITS LICENSE
REVOKED, 48 STAT. 1086.  IN ALL OTHER RESPECTS SECS. 13 AND 15 OF THE
RADIO ACT WERE IDENTICAL WITH, AND HAD THE SAME PURPOSE AS, SEC. 311
AND 313 OF THE COMMUNICATIONS ACT.  (FN12) 

WHILE THIS HISTORY COMPELS THE CONCLUSION THAT THE FCC WAS NOT
INTENDED TO HAVE ANY AUTHORITY TO PASS ON ANTITRUST VIOLATIONS AS SUCH,
IT IS EQUALLY CLEAR THAT COURTS RETAINED JURISDICTION TO PASS ON
ALLEGED ANTITRUST VIOLATIONS IRRESPECTIVE OF COMMISSION ACTION.  THUS
SEC. 311, AS ORIGINALLY ENACTED IN 1934, 48 STAT. 1086, READ AS
FOLLOWS:    "THE COMMISSION IS HEREBY DIRECTED TO REFUSE A STATION
LICENSE AND/OR THE PERMIT HEREINAFTER REQUIRED FOR THE CONSTRUCTION OF
A STATION TO ANY PERSON (OR TO ANY PERSON DIRECTLY OR INDIRECTLY
CONTROLLED BY SUCH PERSON) WHOSE LICENSE HAS BEEN REVOKED BY A COURT
UNDER SECTION 313, AND IS HEREBY AUTHORIZED TO REFUSE SUCH STATION
LICENSE AND/OR PERMIT TO ANY OTHER PERSON (OR TO ANY PERSON DIRECTLY OR
INDIRECTLY CONTROLLED BY SUCH PERSON) WHICH HAS BEEN FINALLY ADJUDGED
GUILTY BY A FEDERAL COURT OF UNLAWFULLY MONOPOLIZING OR ATTEMPTING
UNLAWFULLY TO MONOPOLIZE, RADIO COMMUNICATION, DIRECTLY OR INDIRECTLY,
THROUGH THE CONTROL OF THE MANUFACTURE OR SALE OF RADIO APPARATUS,
THROUGH EXCLUSIVE TRAFFIC ARRANGEMENTS, OR BY ANY OTHER MEANS, OR TO
HAVE BEEN USING UNFAIR METHODS OF COMPETITION.  THE GRANTING OF A
LICENSE SHALL NOT ESTOP THE UNITED STATES OR ANY PERSON AGGRIEVED FROM
PROCEEDING AGAINST SUCH PERSON FOR VIOLATING THE LAW AGAINST UNLAWFUL
RESTRAINTS AND MONOPOLIES AND/OR COMBINATIONS, CONTRACTS, OR AGREEMENTS
IN RESTRAINT OF TRADE, OR FROM INSTITUTING PROCEEDINGS FOR THE
DISSOLUTION OF SUCH CORPORATION." 

APPELLEES ATTEMPT TO AVOID THE FORCE OF THE ITALICIZED SENTENCE IN
TWO WAYS.  FIRST, THEY POINT TO ITS REPEAL IN THE 1952 AMENDMENTS TO
THE ACT, 66 STAT. 716.  THAT REPEAL WAS OCCASIONED BY OBJECTIONS FROM
THE INDUSTRY THAT IT WAS UNFAIR FOR RADIO BROADCASTERS WHO HAD BEEN
FOUND IN VIOLATION OF THE ANTITRUST LAWS TO BE SUBJECT TO LICENSE
REFUSALS BY THE COMMISSION, EVEN WHEN THE COURT AS A PART OF ITS DECREE
DID NOT SEE FIT TO ORDER THE LICENSE REVOKED UNDER SEC. 313.  SEE S.
REP. NO. 142, 82D CONG., 1ST SESS. 9.  CONGRESS ACCORDINGLY REPEALED
ALL OF THE SECTION FOLLOWING THE FIRST COMMA, INCLUDING THE ITALICIZED
SENTENCE.  IT APPARENTLY CONSIDERED THAT INHERENT IN THE SCHEME OF THE
ACT WAS THE RIGHT TO CHALLENGE UNDER THE ANTITRUST LAWS EVEN
TRANSACTIONS APPROVED BY THE COMMISSION, FOR THE CONFERENCE COMMITTEE
CAREFULLY NOTED THAT REPEAL OF THE ITALICIZED SENTENCE WOULD NOT
CURTAIL SUCH A RIGHT:  (FN13) 

"TO THE EXTENT THAT THIS SECTION OF THE CONFERENCE SUBSTITUTE WILL
ELIMINATE FROM SECTION 311 OF THE PRESENT LAW THE LAST SENTENCE, WHICH
IS QUOTED ABOVE, THE COMMITTEE OF CONFERENCE DOES NOT FEEL THAT THIS IS
OF ANY LEGAL SIGNIFICANCE.  IT IS THE VIEW OF THE MEMBERS OF THE
CONFERENCE COMMITTEE THAT THE LAST SENTENCE OF THE PRESENT SECTION 311
IS SURPLUSAGE AND THAT BY OMITTING IT FROM THE PRESENT LAW THE POWER OF
THE UNITED STATES OR OF ANY PRIVATE PERSON TO PROCEED UNDER THE
ANTITRUST LAWS WOULD NOT BE CURTAILED OR AFFECTED IN ANY WAY." 

THUS, APPELLEES' RELIANCE ON REPEAL OF THE LAST SENTENCE OF SEC. 311
IS CLEARLY MISPLACED. 

SECOND, APPELLEES URGE THAT THE ITALICIZED SENTENCE AS ORIGINALLY
ENACTED HAD A VERY NARROW SCOPE; THAT IT WAS INTENDED TO INSURE ONLY
THAT THE GRANTING OF A LICENSE WOULD NOT ESTOP THE GOVERNMENT FROM
PROSECUTING ANTITRUST VIOLATIONS SUBSEQUENT TO THE TRANSACTION GIVING
RISE TO THE LICENSE PROCEEDING, OR OF WHICH THE TRANSACTION WAS MERELY
A SMALL PART.  THEY ARGUE THAT THE SENTENCE WAS INTENDED TO PERMIT ONLY
ACTIONS SUCH AS IN PACKAGED PROGRAMS V. WESTINGHOUSE BROADCASTING CO.,
255 F.2D 708.  BUT THE LANGUAGE OF THE SENTENCE CANNOT BE NATURALLY
READ IN SUCH A NARROW MANNER, AND IT WOULD TAKE PERSUASIVE LEGISLATIVE
HISTORY SO TO RESTRICT ITS APPLICATION.  APPELLEES POINT TO NO SUCH
HISTORY, NOR TO ANY CASES SO HOLDING. 

THUS, THE LEGISLATIVE HISTORY OF THE ACT REVEALS THAT THE COMMISSION
WAS NOT GIVEN THE POWER TO DECIDE ANTITRUST ISSUES AS SUCH, AND THAT
COMMISSION ACTION WAS NOT INTENDED TO PREVENT ENFORCEMENT OF THE
ANTITRUST LAWS IN FEDERAL COURTS. 

                                       II. 

WE NOW REACH THE QUESTION WHETHER, DESPITE THE LEGISLATIVE HISTORY,
THE OVER-ALL REGULATORY SCHEME OF THE ACT REQUIRES INVOCATION OF A
PRIMARY JURISDICTION DOCTRINE.  THE DOCTRINE ORIGINATED WITH MR.
JUSTICE (LATER CHIEF JUSTICE) WHITE IN TEXAS & PACIFIC R. CO. V.
ABILENE COTTON OIL CO., 204 U.S. 426.  IT WAS GROUNDED ON THE NECESSITY
FOR ADMINISTRATIVE UNIFORMITY, AND, IN THAT PARTICULAR CASE, FOR
MAINTENANCE OF UNIFORM RATES TO ALL SHIPPERS.  (FN14)  A SECOND REASON
FOR THE DOCTRINE WAS SUGGESTED BY MR. JUSTICE BRANDEIS IN GREAT
NORTHERN R. CO. V. MERCHANTS ELEVATOR CO., 259 U.S. 285, 291, WHERE HE
POINTED TO THE NEED FOR ADMINISTRATIVE SKILL "COMMONLY TO BE FOUND ONLY
IN A BODY OF EXPERTS" IN HANDLING THE "INTRICATE FACTS" OF, IN THAT
CASE, THE TRANSPORTATION INDUSTRY. 

THUS, WHEN QUESTIONS AROSE AS TO THE APPLICABILITY OF THE DOCTRINE TO
TRANSACTIONS ALLEGEDLY VIOLATIVE OF THE ANTITRUST LAWS, PARTICULARLY
INVOLVING FULLY REGULATED INDUSTRIES WHOSE MEMBERS WERE FORCED TO
CHARGE ONLY REASONABLE RATES APPROVED BY THE APPROPRIATE COMMISSION,
THIS COURT FOUND THE DOCTRINE APPLICABLE.  (FN15)  UNITED STATES V.
PACIFIC & ARCTIC R. CO., 228 U.S. 87; KEOGH V. CHICAGO & N.W.R. CO.,
260 U.S. 156; UNITED STATES NAVIGATION CO. V. CUNARD S.S. CO., 284 U.S.
474; GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439; FAR EAST CONFERENCE
V. UNITED STATES, 342 U.S. 570.  AT THE SAME TIME, THIS COURT CAREFULLY
NOTED THAT THE DOCTRINE DID NOT APPLY WHEN THE ACTION WAS ONLY FOR THE
PURPOSE OF DISSOLVING THE CONSPIRACY THROUGH WHICH THE ALLEGEDLY
INVALID RATES WERE SET, FOR IN SUCH A CASE THERE WOULD BE NO
INTERFERENCE WITH RATE STRUCTURES OR A REGULATORY SCHEME.  (FN16)
UNITED STATES V. PACIFIC & ARCTIC R. CO., SUPRA; GEORGIA V.
PENNSYLVANIA R. CO., SUPRA.  THE DECISIONS SOMETIMES EMPHASIZED THE
NEED FOR ADMINISTRATIVE UNIFORMITY AND UNIFORM RATES, KEOGH V. CHICAGO
& N.W.R. CO., SUPRA, WHILE AT OTHER TIMES THEY EMPHASIZED THE NEED FOR
ADMINISTRATIVE EXPERIENCE IN DISTILLING THE RELEVANT FACTS IN A COMPLEX
INDUSTRY AS A FOUNDATION FOR LATER COURT ACTION.  UNITED STATES
NAVIGATION CO. V. CUNARD S.S. CO., SUPRA, AND FAR EAST CONFERENCE V.
UNITED STATES, SUPRA, AS EXPLAINED IN FEDERAL MARITIME BOARD V.
ISBRANDTSEN CO., 356 U.S. 481, 497-499. 

THE CASES ALL INVOLVED, HOWEVER, COMMON CARRIERS BY RAIL AND WATER. 
THESE CARRIERS COULD CHARGE ONLY THE PUBLISHED TARIFF, AND THAT TARIFF
MUST HAVE BEEN FOUND BY THE APPROPRIATE AGENCY TO HAVE BEEN
REASONABLE.  FREE RATE COMPETITION WAS MODIFIED BY FEDERAL CONTROLS. 
THE COURT'S CONCERN WAS THAT THE AGENCY WHICH WAS EXPERT IN, AND
RESPONSIBLE FOR, ADMINISTERING THOSE CONTROLS SHOULD BE GIVEN THE
OPPORTUNITY TO DETERMINE QUESTIONS WITHIN ITS SPECIAL COMPETENCE AS AN
AID TO THE COURTS IN RESOLVING FEDERAL ANTITRUST POLICY AND FEDERAL
REGULATORY PATTERNS INTO A COHESIVE WHOLE.  THAT SOME RESOLUTION IS
NECESSARY WHEN THE ANTITRUST POLICY OF FREE COMPETITION IS PLACED
BESIDE A REGULATORY SCHEME INVOLVING FIXED RATES IS OBVIOUS.  CF.
MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67.  ACCORDINGLY, THIS
COURT CONSISTENTLY HELD THAT WHEN RATES AND PRACTICES RELATING THERETO
WERE CHALLENGED UNDER THE ANTITRUST LAWS, THE AGENCIES HAD PRIMARY
JURISDICTION TO CONSIDER THE REASONABLENESS OF SUCH RATES AND PRACTICES
IN THE LIGHT OF THE MANY RELEVANT FACTORS INCLUDING ALLEGED ANTITRUST
VIOLATIONS, FOR OTHERWISE SPORADIC ACTION BY FEDERAL COURTS WOULD
DISRUPT AN AGENCY'S DELICATE REGULATORY SCHEME, AND WOULD THROW
EXISTING RATE STRUCTURES OUT OF BALANCE. 

WHILE THE TELEVISION INDUSTRY IS ALSO A REGULATED INDUSTRY, IT IS
REGULATED IN A VERY DIFFERENT WAY.  THAT DIFFERENCE IS CONTROLLING. 
RADIO BROADCASTERS, INCLUDING TELEVISION BROADCASTERS, SEE ALLEN B.
DUMONT LABORATORIES V. CARROLL, 184 F.2D 153, ARE NOT INCLUDED IN THE
DEFINITION OF COMMON CARRIERS IN SEC. 3(H) OF THE COMMUNICATIONS ACT,
47 U.S.C.  SEC. 153(H), AS ARE TELEPHONE AND TELEGRAPH COMPANIES.  THUS
THE EXTENSIVE CONTROLS, INCLUDING RATE REGULATION, OF TITLE II OF THE
COMMUNICATIONS ACT, 47 U.S.C. SECS. 201-222, DO NOT APPLY.  (FN17)
TELEVISION BROADCASTERS REMAIN FREE TO SET THEIR OWN ADVERTISING
RATES.  AS THIS COURT SAID IN FEDERAL COMMUNICATIONS COMM'N V. SANDERS
BROS. RADIO STATION, 309 U.S. 470, 474: 

"IN CONTRADISTINCTION TO COMMUNICATION BY TELEPHONE AND TELEGRAPH,
WHICH THE COMMUNICATIONS ACT RECOGNIZES AS A COMMON CARRIER ACTIVITY
AND REGULATES ACCORDINGLY IN ANALOGY TO THE REGULATION OF RAIL AND
OTHER CARRIERS BY THE INTERSTATE COMMERCE COMMISSION, THE ACT
RECOGNIZES THAT BROADCASTERS ARE NOT COMMON CARRIERS AND ARE NOT TO BE
DEALT WITH AS SUCH.  THUS THE ACT RECOGNIZES THAT THE FIELD OF
BROADCASTING IS ONE OF FREE COMPETITION.  THE SECTIONS DEALING WITH
BROADCASTING DEMONSTRATE THAT CONGRESS HAS NOT, IN ITS REGULATORY
SCHEME, ABANDONED THE PRINCIPLE OF FREE COMPETITION AS IT HAS DONE IN
THE CASE OF RAILROADS  ...  ." 

THUS, THERE BEING NO PERVASIVE REGULATORY SCHEME, AND NO RATE
STRUCTURES TO THROW OUT OF BALANCE, SPORADIC ACTION BY FEDERAL COURTS
CAN WORK NO MISCHIEF.  THE JUSTIFICATION FOR PRIMARY JURISDICTION
ACCORDINGLY DISAPPEARS.  (FN18) 

THE FACTS OF THIS CASE ILLUSTRATE THAT ANALYSIS.  APPELLEES, LIKE
UNREGULATED BUSINESS CONCERNS, MADE A BUSINESS JUDGMENT AS TO THE
DESIRABILITY OF THE EXCHANGE.  LIKE UNREGULATED CONCERNS, THEY HAD TO
MAKE THIS JUDGMENT WITH KNOWLEDGE THAT THE EXCHANGE MIGHT RUN AFOUL OF
THE ANTITRUST LAWS.  THEIR DECISION VARIED FROM THAT OF AN UNREGULATED
CONCERN ONLY IN THAT THEY ALSO HAD TO OBTAIN THE APPROVAL OF A FEDERAL
AGENCY.  BUT SCOPE OF THAT APPROVAL IN THE CASE OF THE FCC WAS LIMITED
TO THE STATUTORY STANDARD, "PUBLIC INTEREST, CONVENIENCE, AND
NECESSITY."  SEE, GENERALLY, FEDERAL RADIO COMM'N V. NELSON BROS. CO.,
289 U.S. 266; FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING
CO., 309 U.S. 134; FEDERAL COMMUNICATIONS COMM'N V. SANDERS BROS. RADIO
STATION, SUPRA; FEDERAL COMMUNICATIONS COMM'N V. RCA COMMUNICATIONS,
346 U.S. 86.  THE MONETARY TERMS OF THE EXCHANGE WERE SET BY THE
PARTIES, AND WERE OF CONCERN TO THE COMMISSION ONLY AS THEY MIGHT HAVE
AFFECTED THE ABILITY OF THE PARTIES TO SERVE THE PUBLIC.  EVEN AFTER
APPROVAL, THE PARTIES WERE FREE TO COMPLETE OR NOT TO COMPLETE THE
EXCHANGE AS THEIR SOUND BUSINESS JUDGMENT DICTATED.  IN EVERY SENSE,
THE QUESTION FACED BY THE PARTIES WAS SOLELY ONE OF BUSINESS JUDGMENT
(AS OPPOSED TO REGULATORY COERCION), SAVE ONLY THAT THE COMMISSION MUST
HAVE FOUND THAT THE "PUBLIC INTEREST" WOULD BE SERVED BY THEIR DECISION
TO MAKE THE EXCHANGE.  NO PERVASIVE REGULATORY SCHEME WAS INVOLVED. 

THIS IS NOT TO IMPLY THAT FEDERAL ANTITRUST POLICY MAY NOT BE
CONSIDERED IN DETERMINING WHETHER THE "PUBLIC INTEREST, CONVENIENCE,
AND NECESSITY" WILL BE SERVED BY PROPOSED ACTION OF A BROADCASTER, FOR
THIS COURT HAS HELD THE CONTRARY.  (FN19)  NATIONAL BROADCASTING CO. V.
UNITED STATES, 319 U.S. 190, 222-224.  MOREOVER, IN A GIVEN CASE THE
COMMISSION MIGHT FIND THAT ANTITRUST CONSIDERATIONS ALONE WOULD KEEP
THE STATUTORY STANDARD FROM BEING MET, AS WHEN THE PUBLISHER OF THE
SOLE NEWSPAPER IN AN AREA APPLIES FOR A LICENSE FOR THE ONLY AVAILABLE
RADIO AND TELEVISION FACILITIES, WHICH, IF GRANTED, WOULD GIVE HIM A
MONOPOLY OF THAT AREA'S MAJOR MEDIA OF MASS COMMUNICATION.  SEE 98
CONG. REC. 7399; MANSFIELD JOURNAL CO. V. FEDERAL COMMUNICATIONS
COMM'N, 86 U.S. APP. D.C. 102, 107, 108, 180 F.2D 28, 33, 34. 

         III. 

THE OTHER CONTENTIONS OF APPELLEES FALL OF THEIR OWN WEIGHT IF THE
FCC HAS NO POWER TO DECIDE ANTITRUST QUESTIONS.  THUS, BEFORE WE CAN
FIND THE GOVERNMENT COLLATERALLY ESTOPPED BY THE FCC LICENSING, WE MUST
FIND "WHETHER OR NOT IN THE EARLIER LITIGATION THE REPRESENTATIVE OF
THE UNITED STATES HAD AUTHORITY TO REPRESENT ITS INTERESTS IN A FINAL
ADJUDICATION OF THE ISSUE IN CONTROVERSY."  SUNSHINE ANTHRACITE COAL
CO. V. ADKINS, 310 U.S. 381, 403.  BUT THE ISSUE IN CONTROVERSY BEFORE
THE COMMISSION WAS WHETHER THE EXCHANGE WOULD SERVE THE PUBLIC
INTEREST, NOT WHETHER SEC. 1 OF THE SHERMAN ACT HAD VEEN VIOLATED. 
CONSEQUENTLY, THERE COULD BE NO ESTOPPEL.  RES JUDICATA PRINCIPLES ARE
EVEN MORE INAPPOSITE. 

SIMILARLY, THERE COULD BE NO LACHES UNLESS THE GOVERNMENT WAS UNDER
SOME SORT OF A DUTY TO GO FORWARD IN THE FCC PROCEEDINGS.  BUT UNLESS
THE FCC HAD POWER TO DECIDE THE ANTITRUST ISSUES, AND WE HAVE HELD THAT
IT DID NOT, THE GOVERNMENT HAD NO DUTY EITHER TO ENTER THE FCC
PROCEEDINGS OR TO SEEK REVIEW OF THE LICENSE GRANT.  (FN20) 

ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT DISMISSING THE ACTION
IS REVERSED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  UNDER PRESENT FCC REGULATIONS, NBC CAN OWN NO MORE THAN FIVE
STATIONS, 47 CFR, 1958, SEC. 3.636, SO THAT ACQUISITION OF A NEW
STATION WOULD REQUIRE THAT AN EXISTING ONE BE RELINQUISHED. 

FN2  FEDERAL COMMUNICATIONS COMMISSION REPORT NO. 2793, PUBLIC NOTICE
27067, DECEMBER 28, 1955. 

FN3  COMMISSIONER BARTLEY DISSENTED FROM THE ACTION, URGING THAT
HEARINGS SHOULD HAVE BEEN HELD BECAUSE THE FACTS THERETOFORE REVEALED
BY THE INVESTIGATION HAD RAISED "SERIOUS QUESTIONS AS TO THE
DESIRABILITY AND POSSIBLE LEGALITY OF THE COMPETITIVE PRACTICES
FOLLOWED BY THE NETWORK IN OBTAINING DOMINANCE OF MAJOR BROADCAST
MARKETS."  HE SUGGESTED THAT THERE WAS "A SUBSTANTIAL QUESTION WHETHER,
ONCE THE COMMISSION GRANTS ITS APPROVAL TO THESE TRANSFERS, CERTAIN
PROVISIONS OF THE CLAYTON ACT (VIZ. 15 U.S.C. SECTION 18) MIGHT PREVENT
FEDERAL TRADE COMMISSION AND JUSTICE DEPARTMENT FROM TAKING ANY
EFFECTIVE ACTION IN THE EVENT THEY CONCLUDED THAT POSSIBLE VIOLATIONS
OF THE ANTI-TRUST LAWS WERE INVOLVED."  COMMISSIONER DOERFER, JOINED BY
COMMISSIONER MACK, RESPONDED THAT IT WAS UNNECESSARY TO HOLD A HEARING
BECAUSE THE INVESTIGATION HAD FULLY REVEALED THE FACTS.  HE CONCLUDED,
HOWEVER:  "IT IS DIFFICULT TO SEE HOW APPROVAL OF THIS EXCHANGE MAY
EFFECTIVELY PRECLUDE OTHER GOVERNMENTAL AGENCIES FROM EXAMINING INTO
THIS OR ANY OTHER TRANSACTION OF THE NETWORK COMPANIES."    FN4  44
STAT. 1162.  SEE H.R. CONF. REP. NO. 1918, 73D CONG., 2D SESS. 47, 49. 

FN5  "THE SECRETARY OF COMMERCE IS HEREBY DIRECTED TO REFUSE A
STATION LICENSE AND/OR THE PERMIT HEREINAFTER REQUIRED FOR THE
CONSTRUCTION OF A STATION TO ANY PERSON, FIRM, COMPANY, OR CORPORATION,
OR ANY SUBSIDIARY THEREOF, WHICH HAS BEEN FOUND GUILTY BY ANY FEDERAL
COURT OF UNLAWFULLY MONOPOLIZING OR ATTEMPTING TO UNLAWFULLY MONOPOLIZE
RADIO COMMUNICATION, DIRECTLY OR INDIRECTLY, THROUGH THE CONTROL OF THE
MANUFACTURE OR SALE OF RADIO APPARATUS, THROUGH EXCLUSIVE TRAFFIC
ARRANGEMENTS, OR BY ANY OTHER MEANS.  THE GRANTING OF A LICENSE SHALL
NOT ESTOP THE UNITED STATES OR ANY PERSON AGGRIEVED FROM PROSECUTING
SUCH PERSON, FIRM, COMPANY, OR CORPORATION FOR A VIOLATION OF THE LAW
AGAINST UNLAWFUL RESTRAINTS AND MONOPOLIES AND/OR COMBINATIONS,
CONTRACTS, OR AGREEMENTS IN RESTRAINT OF TRADE." 

FN6  "ALL LAWS OF THE UNITED STATES RELATING TO UNLAWFUL RESTRAINTS
AND MONOPOLIES AND TO COMBINATIONS, CONTRACTS, OR AGREEMENTS IN
RESTRAINT OF TRADE ARE HEREBY DECLARED TO BE APPLICABLE TO THE
MANUFACTURE AND SALE OF AND TO TRADE IN RADIO APPARATUS AND DEVICES
ENTERING INTO OR AFFECTING INTERSTATE OR FOREIGN COMMERCE AND TO
INTERSTATE OR FOREIGN RADIO COMMUNICATIONS.  WHENEVER IN ANY SUIT,
ACTION, OR PROCEEDING, CIVIL OR CRIMINAL, BROUGHT UNDER THE PROVISIONS
OF ANY OF SAID LAWS OR IN ANY PROCEEDINGS BROUGHT TO ENFORCE OR TO
REVIEW FINDINGS AND ORDERS OF THE FEDERAL TRADE COMMISSION OR OTHER
GOVERNMENTAL AGENCY IN RESPECT OF ANY MATTERS AS TO WHICH SAID
COMMISSION OR OTHER GOVERNMENTAL AGENCY IS BY LAW AUTHORIZED TO ACT,
ANY LICENSEE SHALL BE FOUND GUILTY OF THE VIOLATION OF THE PROVISIONS
OF SUCH LAWS OR ANY OF THEM, THE COURT, IN ADDITION TO THE PENALTIES
IMPOSED BY SAID LAWS, MAY ADJUDGE, ORDER, AND/OR DECREE THAT THE
LICENSE OF SUCH LICENSEE SHALL, AS OF THE DATE THE DECREE OR JUDGMENT
BECOMES FINALLY EFFECTIVE OR AS OF SUCH OTHER DATE AS THE SAID DECREE
SHALL FIX, BE REVOKED AND THAT ALL RIGHTS UNDER SUCH LICENSE SHALL
THEREUPON CEASE: PROVIDED, HOWEVER, THAT SUCH LICENSEE SHALL HAVE THE
SAME RIGHT OF APPEAL OR REVIEW AS IS PROVIDED BY LAW IN RESPECT OF
OTHER DECREES AND JUDGMENTS OF SAID COURT." 

FN7  AS THEN PHRASED, THE ACT WAS TO BE ADMINISTERED PRIMARILY BY THE
SECRETARY OF COMMERCE. 

FN8  HEARINGS BEFORE THE HOUSE COMMITTEE ON THE MERCHANT MARINE AND
FISHERIES ON H.R.  5589, 69TH CONG., 1ST SESS. 27. 

FN9  ID., AT 29. 

FN10  SEE H.R. REP. NO. 404, 69TH CONG., 1ST SESS. 6, 16, 23. 

FN11  67 CONG. REC. 12507. 

FN12  H.R. CONF. REP. NO. 1918, 73D CONG., 2D SESS. 47, 49. 

FN13  H.R. CONF. REP. NO. 2426, 82D CONG., 2D SESS. 19. 

FN14  WE RECENTLY EXPLAINED THE NATURE OF THE DOCTRINE IN UNITED
STATES V. WESTERN PACIFIC R. CO., 352 U.S. 59, 63-64: 

"THE DOCTRINE OF PRIMARY JURISDICTION, LIKE THE RULE REQUIRING
EXHAUSTION OF ADMINISTRATIVE REMEDIES, IS CONCERNED WITH PROMOTING
PROPER RELATIONSHIPS BETWEEN THE COURTS AND ADMINISTRATIVE AGENCIES
CHARGED WITH PARTICULAR REGULATORY DUTIES.  'EXHAUSTION' APPLIES WHERE
A CLAIM IS COGNIZABLE IN THE FIRST INSTANCE BY AN ADMINISTRATIVE AGENCY
ALONE; JUDICIAL INTERFERENCE IS WITHHELD UNTIL THE ADMINISTRATIVE
PROCESS HAS RUN ITS COURSE.  'PRIMARY JURISDICTION,' ON THE OTHER HAND,
APPLIES WHERE A CLAIM IS ORIGINALLY COGNIZABLE IN THE COURTS, AND COMES
INTO PLAY WHENEVER ENFORCEMENT OF THE CLAIM REQUIRES THE RESOLUTION OF
ISSUES WHICH, UNDER A REGULATORY SCHEME, HAVE BEEN PLACED WITHIN THE
SPECIAL COMPETENCE OF AN ADMINISTRATIVE BODY; IN SUCH A CASE THE
JUDICIAL PROCESS IS SUSPENDED PENDING REFERRAL OF SUCH ISSUES TO THE
ADMINISTRATIVE BODY FOR ITS VIEWS." 

FN15  SEE, GENERALLY, 3 DAVIS, ADMINISTRATIVE LAW TREATISE, SECS.
19.05, 19.06; JAFFE, PRIMARY JURISDICTION RECONSIDERED:  THE ANTI-TRUST
LAWS, 102 U. OF PA. L. REV. 577; SCHWARTZ, LEGAL RESTRICTION OF
COMPETITION IN THE REGULATED INDUSTRIES:  AN ABDICATION OF JUDICIAL
RESPONSIBILITY, 67 HARV. L. REV. 436; VON MEHREN, THE ANTITRUST LAWS
AND REGULATED INDUSTRIES: THE DOCTRINE OF PRIMARY JURISDICTION, 67
HARV. L. REV. 929. 

FN16  THIS FOLLOWED BECAUSE, IN THE WORDS OF MR. JUSTICE BRANDEIS IN
KEOGH V. CHICAGO & N.W.R. CO., SUPRA, AT 161, "  ...  A COMBINATION OF
CARRIERS TO FIX REASONABLE AND NON-DISCRIMINATORY RATES MAY BE
ILLEGAL."  THIS COURT IN GEORGIA V. PENNSYLVANIA R. CO., SUPRA, TOOK
THE POSITION THAT SHIPPERS WERE ENTITLED TO HAVE RATES FILED BY
CARRIERS WHO WERE NOT PARTIES TO A CONSPIRACY, EVEN THOUGH THE RATES
FILED WERE THE LOWEST WHICH WOULD BE FOUND TO BE REASONABLE.  THE RISK
THAT FUTURE FILINGS WOULD BE AT THE UPPERMOST LIMITS OF THE ZONE OF
REASONABLENESS WAS TOO GREAT, AND DAMAGE FROM THE CONSPIRATORIAL
FILINGS WAS PRESUMED TO FLOW.  OF COURSE, WHEN THE AGENCY IS PERMITTED
TO EXEMPT FROM ANTITRUST COVERAGE RATES FILED COOPERATIVELY, THE
DOCTRINE EQUALLY APPLIES TO AN ATTACK ON THE ALLEGED CONSPIRACY. 
UNITED STATES NAVIGATION CO. V. CUNARD S.S. CO., SUPRA; FAR EAST
CONFERENCE V. UNITED STATES, SUPRA. 

FN17  UNDER TITLE II, COMMON CARRIERS ARE REQUIRED TO FURNISH
COMMUNICATIONS SERVICE ON REASONABLE REQUEST AND MAY CHARGE ONLY JUST
AND REASONABLE RATES, SEC. 201.  SUCH CARRIERS MUST FILE RATES WITH THE
FCC, AND CAN CHARGE ONLY THE RATES AS FILED, SEC. 203.  THE COMMISSION
MAY HOLD HEARINGS ON THE LAWFULNESS OF FILED RATES, SEC. 204, AND AFTER
HEARINGS MAY ITSELF SET THE APPLICABLE RATE, SEC. 205.  CF. 49 U.S.C.
SEC. 15 ET SEQ., 46 U.S.C.  SEC. 817.  IN VIEW OF THIS EXTENSIVE
REGULATION, CONGRESS HAS PROVIDED THAT CERTAIN ACTIONS OF TELEPHONE AND
TELEGRAPH COMPANIES MAY BE EXEMPTED FROM THE ANTITRUST LAWS BY THE
COMMISSION, SEC. 221(A) AND SEC. 222(C)(1).  CR. 49 U.S.C. SECS. 5(11),
5B(9) AND 46 U.S.C.  SEC. 814.  SUCH EXEMPTIONS ARE, HOWEVER, SUBJECT
TO REVIEW, SEE FEDERAL MARITIME BOARD V. ISBRANDTSEN CO., 356 U.S.
481. 

FN18  THIS CONCLUSION IS RE-ENFORCED BY THE COMMISSION'S DISAVOWAL OF
EITHER THE POWER OR THE DESIRE TO FORECLOSE THE GOVERNMENT FROM
ANTITRUST ACTIONS AIMED AT TRANSACTIONS WHICH THE COMMISSION HAS
LICENSED.  THIS POSITION WAS TAKEN BOTH BEFORE THE DISTRICT JUDGE
BELOW, AND IN A SUPPLEMENTAL MEMORANDUM FILED IN THIS COURT, PAGE 8: 

"CONCURRENT WITH THE JURISDICTION OF THE DEPARTMENT OF JUSTICE TO
ENFORCE THE SHERMAN ACT, THE COMMISSION, OF COURSE, HAS JURISDICTION TO
DESIGNATE LICENSE APPLICATIONS FOR HEARING ON PUBLIC INTEREST QUESTIONS
ARISING OUT OF FACTS WHICH MIGHT ALSO CONSTITUTE VIOLATIONS OF THE
ANTITRUST LAWS.  THIS DOES NOT MEAN, HOWEVER, THAT ITS ACTION ON THESE
PUBLIC INTEREST QUESTIONS OF COMMUNICATIONS POLICY IS A DETERMINATION
OF THE ANTITRUST ISSUES AS SUCH.  THUS, WHILE THE COMMISSION MAY DENY
APPLICATIONS AS NOT IN THE PUBLIC INTEREST WHERE VIOLATIONS OF THE
SHERMAN ACT HAVE BEEN DETERMINED TO EXIST, ITS APPROVAL OF TRANSACTIONS
WHICH MIGHT INVOLVE SHERMAN ACT VIOLATIONS IS NOT A DETERMINATION THAT
THE SHERMAN ACT HAS NOT BEEN VIOLATED, AND THEREFORE CANNOT FORESTALL
THE UNITED STATES FROM SUBSEQUENTLY BRINGING AN ANTITRUST SUIT
CHALLENGING THOSE TRANSACTIONS." 

NOR WAS THIS POSITION TAKEN MERELY FOR THE PURPOSES OF THIS
LITIGATION, FOR IT HAS BEEN THE VIEW OF THE COMMISSION OVER A PERIOD OF
YEARS.  SEE REPORT ON UNIFORM POLICY AS TO VIOLATION BY APPLICANTS OF
LAWS OF UNITED STATES, FCC DOCKET NO. 9572 (1950), 1 PIKE AND FISCHER,
RADIO REGULATION, PART III, 91:495; NATIONAL BROADCASTING CO. V. UNITED
STATES, 319 U.S. 190.  SINCE, AS MR. JUSTICE BRANDEIS OBSERVED, THE
DOCTRINE OF PRIMARY JURISDICTION RESTS IN PART UPON THE NEED FOR THE
SKILL OF A "BODY OF EXPERTS," IT WOULD BE ODD TO IMPOSE THE DOCTRINE
WHEN THE EXPERTS DENY THE RELEVANCE OF THEIR SKILL. 

FN19  SEE ALSO REPORT ON UNIFORM POLICY AS TO VIOLATION BY APPLICANTS
OF LAWS OF UNITED STATES, FCC DOCKET NO. 9572, 1 PIKE AND FISCHER,
RADIO REGULATION, PART III, 91:495. 

FN20  IT IS RELEVANT TO NOTE THAT THE COMMISSION IS NOT EXPRESSLY
REQUIRED TO GIVE THE GOVERNMENT NOTICE THAT ANTITRUST ISSUES HAVE BEEN
RAISED IN A SEC. 310(B) PROCEEDING.  COMPARE SEC. 222(C)(1) OF THE ACT
RELATING TO COMMON CARRIERS, WHICH EXPRESSLY MAKES CONSOLIDATIONS AND
MERGERS EXEMPT FROM ANTITRUST COVERAGE IF APPROVED BY THE COMMISSION,
BUT WHICH ALSO EXPRESSLY REQUIRES THAT NOTICE BE GIVEN TO THE ATTORNEY
GENERAL OF THE UNITED STATES PRIOR TO APPROVAL. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT, BELIEVING, AS HE
UNDERSTANDS PART "I" OF THE COURT'S OPINION TO HOLD, THAT A COMMISSION
DETERMINATION OF "PUBLIC INTEREST, CONVENIENCE, AND NECESSITY" CANNOT
EITHER CONSTITUTE A BINDING ADJUDICATION UPON ANY ANTITRUST ISSUES THAT
MAY BE INVOLVED IN THE COMMISSION'S PROCEEDING OR SERVE TO EXEMPT A
LICENSEE PRO TANTO FROM THE ANTITRUST LAWS, AND THAT THESE
CONSIDERATIONS ALONE ARE DISPOSITIVE OF THIS APPEAL. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :



ROMERO V. INTERNATIONAL TERMINAL OPERATING CO. 358 U.S. 354 


NO. 3.  ARGUED MARCH 13, 1958 - RESTORED TO THE CALENDAR FOR REARGUMENT
MAY 19, 1958 - REARGUED OCTOBER 22-23, 1958 - DECIDED FEBRUARY 24, 1959
- 244 F.2D 409, JUDGMENT VACATED AND CAUSE REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS. 


PETITIONER, A SPANISH SUBJECT, WAS EMPLOYED ON BOARD A SHIP OF SPANISH
FLAG AND REGISTRY, OWNED BY A SPANISH CORPORATION, FOR A VOYAGE
BEGINNING AND ENDING IN SPAIN.  HE WAS INJURED WHILE THE SHIP WAS IN
AMERICAN TERRITORIAL WATERS, AND HE FILED SUIT ON THE LAW SIDE OF A
FEDERAL DISTRICT COURT IN NEW YORK.  HE CLAIMED DAMAGES UNDER THE JONES
ACT AND UNDER THE GENERAL MARITIME LAW FOR UNSEAWORTHINESS, MAINTENANCE
AND CURE AND NEGLIGENCE AGAINST HIS SPANISH EMPLOYER AND A NEW YORK
CORPORATION WHICH ACTED AS ITS HUSBANDING AGENT IN NEW YORK.  DAMAGES
FOR NEGLIGENCE UNDER THE GENERAL MARITIME LAW WERE CLAIMED AGAINST TWO
OTHER AMERICAN CORPORATIONS ENGAGED IN OPERATIONS RELATED TO LOADING
FREIGHT IN NEW JERSEY.  THE DISTRICT COURT DISMISSED THE COMPLAINT AND
THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  JURISDICTION UNDER THE JONES ACT WAS ADEQUATELY ALLEGED.  P.
359. 

2.  JURISDICTION ON THE LAW SIDE OF CLAIMS BASED ON THE GENERAL
MARITIME LAW IS NOT GRANTED BY 28 U.S.C. SEC. 1331.  PP. 359-380. 

3.  THERE WAS JURISDICTION, "PENDENT" TO JURISDICTION UNDER THE JONES
ACT, TO DETERMINE WHETHER THE CLAIMS AGAINST THE SPANISH CORPORATION
BASED ON GENERAL MARITIME LAW STATED A CAUSE OF ACTION.  PP. 380-381. 

4.  THERE WAS JURISDICTION UNDER 28 U.S.C. SEC. 1332 OVER THE CLAIMS
UNDER THE GENERAL MARITIME LAW AGAINST THE THREE AMERICAN
CORPORATIONS.  P. 381. 

5.  NEITHER THE JONES ACT NOR THE GENERAL MARITIME LAW OF THE UNITED
STATES IS APPLICABLE TO THE CLAIMS AGAINST THE FOREIGN SHIPOWNER.  PP.
381-384. 

6.  THE CLAIMS FOR UNSEAWORTHINESS AND MAINTENANCE AND CURE AGAINST
THE HUSBANDING AGENT WERE PROPERLY DISMISSED IN LIGHT OF THE DISTICT
COURT'S FINDINGS OF FACT.  PP. 384-385. 

7.  THE CASE MUST BE REMANDED FOR CONSIDERATION OF THE CLAIMS AGAINST
THE THREE AMERICAN CORPORATIONS BASED ON NEGLIGENCE.  P. 385. 

ROMERO V. INTERNATIONAL TERMINAL OPERATING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER FRANCISCO ROMERO, A SPANISH SUBJECT, SIGNED ON AS A MEMBER
OF THE CREW OF THE S.S. GUADALUPE FOR A VOYAGE BEGINNING ABOUT OCTOBER
10, 1953.  THE GUADALUPE WAS OF SPANISH REGISTRY, SAILED UNDER THE
SPANISH FLAG AND WAS OWNED BY RESPONDENT COMPANIA TRASATLANTICA (ALSO
KNOWN AS SPANISH LINE), A SPANISH CORPORATION.  AT THE COMPLETION OF
THE VOYAGE FOR WHICH HE SIGNED, ROMERO CONTINUED UNINTERRUPTEDLY TO
WORK ON THE GUADALUPE.  THEREBY, UNDER THE LAW OF SPAIN, THE TERMS AND
CONDITIONS OF THE ORIGINAL CONTRACT OF HIRE REMAINED IN FORCE. 
SUBSEQUENTLY THE S.S. GUADALUPE DEPARTED FROM THE PORT OF BILBAO IN
NORTHERN SPAIN, TOUCHED BRIEFLY AT OTHER SPANISH PORTS, AND SAILED TO
THE PORT OF NEW YORK AT HOBOKEN.  FROM HERE THE SHIP MADE A BRIEF TRIP
TO THE PORTS OF VERA CRUZ AND HAVANA RETURNING TO HOBOKEN WHERE, ON MAY
12, 1954, ROMERO WAS SERIOUSLY INJURED WHEN STRUCK BY A CABLE ON THE
DECK OF THE GUADALUPE.  THEREUPON PETITIONER FILED SUIT ON THE LAW SIDE
OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. 

THE AMENDED COMPLAINT CLAIMED DAMAGES FROM FOUR SEPARATE CORPORATE
DEFENDANTS.  LIABILITY OF COMPANIA TRASATLANTICA AND GARCIA & DIAZ,
INC., A NEW YORK CORPORATION WHICH ACTED AS THE HUSBANDING AGENT FOR
COMPANIA'S VESSELS WHILE IN THE PORT OF NEW YORK, WAS ASSERTED UNDER
THE JONES ACT, 41 STAT. 1007, 46 U.S.C. SEC. 688, AND UNDER THE GENERAL
MARITIME LAW OF THE UNITED STATES FOR UNSEAWORTHINESS OF THE SHIP,
MAINTENANCE AND CURE (FN1) AND A MARITIME TORT.  LIABILITY FOR A
MARITIME TORT WAS ALLEGED AGAINST RESPONDENTS INTERNATIONAL TERMINAL
OPERATING CO. AND QUIN LUMBER CO.  THESE TWO COMPANIES WERE WORKING ON
BOARD THE S.S. GUADALUPE AT THE TIME OF THE INJURY PURSUANT TO ORAL
CONTRACTS WITH GARCIA & DIAZ, INC. QUIN, A NEW YORK CORPORATION, WAS
ENGAGED IN CARPENTRY WORK PREPARATORY TO THE RECEIPT OF A CARGO OF
GRAIN.  INTERNATIONAL TERMINAL, INCORPORATED IN DELAWARE, WAS EMPLOYED
AS STEVEDORE TO LOAD THE CARGO.  THE JURISDICTION OF THE DISTRICT COURT
WAS INVOKED UNDER THE JONES ACT AND SECS. 1331 (FN2) AND 1332 (FN3) OF
THE JUDICIAL CODE, 28 U.S.C. 

FOLLOWING A PRE-TRIAL HEARING THE DISTRICT COURT DISMISSED THE
COMPLAINT.  142 F. SUPP.  570.  (FN4)  THE COURT HELD THAT THE ACTION
UNDER THE JONES ACT AGAINST COMPANIA TRASATLANTICA MUST BE DISMISSED
FOR LACK OF JURISDICTION SINCE THAT ACT PROVIDED NO RIGHT OF ACTION FOR
AN ALIEN SEAMAN AGAINST A FOREIGN SHIPOWNER UNDER THE CIRCUMSTANCES
DETAILED ABOVE.  THE CLAIMS UNDER THE GENERAL MARITIME LAW AGAINST
COMPANIA ALSO WERE DISMISSED SINCE THE PARTIES WERE NOT OF DIVERSE
CITIZENSHIP AND 28 U.S.C. SEC. 1331 DID NOT CONFER JURISDICTION ON THE
FEDERAL LAW COURTS OVER CLAIMS ROOTED IN FEDERAL MARITIME LAW.  THE
DISTRICT COURT DISMISSED THE JONES ACT CLAIM AGAINST GARCIA & DIAZ,
INC., PURSUANT TO ITS FINDING THAT GARCIA WAS NOT THE EMPLOYER OF
ROMERO NOR, AS A HUSBANDING AGENT FOR COMPANIA, DID IT HAVE THE
OPERATION AND CONTROL OF THE VESSEL.  THE REMAINING CLAIMS, INCLUDING
THOSE AGAINST THE OTHER RESPONDENTS, WERE DISMISSED BECAUSE OF LACK OF
THE REQUISITE COMPLETE DIVERSITY UNDER THE RULE OF STRAWBRIDGE V.
CURTISS, 3 CRANCH 267.  UPON EXAMINATION OF THE SPANISH LAW THE
DISTRICT JUDGE ALSO DECLINED JURISDICTION "EVEN IN ADMIRALTY AS A
MATTER OF DISCRETION."  142 F. SUPP., AT 574.  THE SPANISH LAW PROVIDES
ROMERO WITH A LIFETIME PENSION OF 35% TO 55% OF HIS SEAMAN'S WAGES
WHICH MAY BE INCREASED BY ONE-HALF IF THE NEGLIGENCE OF THE SHIPOWNER
IS ESTABLISHED; IT ALSO ALLOWS THE RECOVERY OF THE SPANISH COUNTERPART
OF MAINTENANCE AND CURE.  THESE RIGHTS UNDER THE SPANISH LAW MAY BE
ENFORCED THROUGH THE SPANISH CONSUL IN NEW YORK. 

THE COURT OF APPEALS AFFIRMED THE DISMISSAL OF THE COMPLAINT, 244
F.2D 409.  WE GRANTED CERTIORARI, 355 U.S. 807, BECAUSE OF THE CONFLICT
AMONG COURTS OF APPEALS AS TO THE PROPER CONSTRUCTION OF THE RELEVANT
PROVISION OF THE JUDICIARY ACT OF 1875 (NOW 28 U.S.C. SEC. 1331) AND
BECAUSE OF QUESTIONS RAISED REGARDING THE APPLICABILITY OF LAURITZEN V.
LARSEN, 345 U.S. 571, TO THE SITUATION BEFORE US.  THE CASE WAS ARGUED
DURING THE LAST TERM AND RESTORED TO THE CALENDAR FOR REARGUMENT DURING
THE PRESENT TERM.  356 U.S. 955. 

           I. JURISDICTION. 

(A)  JURISDICTION UNDER THE JONES ACT.  - THE DISTRICT COURT
DISMISSED PETITIONER'S JONES ACT CLAIMS FOR LACK OF JURISDICTION.  "AS
FREQUENTLY HAPPENS WHERE JURISDICTION DEPENDS ON SUBJECT MATTER, THE
QUESTION WHETHER JURISDICTION EXISTS HAS BEEN CONFUSED WITH THE
QUESTION WHETHER THE COMPLAINT STATES A CAUSE OF ACTION."  MONTANA
DAKOTA UTILITIES CO. V. NORTHWESTERN PUBLIC SERVICE CO., 341 U.S. 246,
249.  PETITIONER ASSERTS A SUBSTANTIAL CLAIM THAT THE JONES ACT AFFORDS
HIM A RIGHT OF RECOVERY FOR THE NEGLIGENCE OF HIS EMPLOYER.  SUCH
ASSERTION ALONE IS SUFFICIENT TO EMPOWER THE DISTRICT COURT TO ASSUME
JURISDICTION OVER THE CASE AND DETERMINE WHETHER, IN FACT, THE ACT DOES
PROVIDE THE CLAIMED RIGHTS.  "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."  LAURITZEN V. LARSEN, 345
U.S. 571, 575. 

(B)  JURISDICTION UNDER 28 U.S.C. SEC. 1331.  - PETITIONER, A SPANISH
SUBJECT, ASSERTS CLAIMS UNDER THE GENERAL MARITIME LAW AGAINST COMPANIA
TRASATLANTICA, A SPANISH CORPORATION.  THE JURISDICTION OF THE FEDERAL
DISTRICT COURT, SITTING AS A COURT OF LAW, WAS INVOKED UNDER THE
PROVISIONS OF THE JUDICIARY ACT OF 1875 WHICH GRANTED JURISDICTION TO
THE LOWER FEDERAL COURTS "OF ALL SUITS OF A CIVIL NATURE AT COMMON LAW
OR IN EQUITY  ...  ARISING UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES,  ...  ."  (NOW 28 U.S.C. SEC.  1331).  (FN5)  WHETHER THE ACT
OF 1875 PERMITS MARITIME CLAIMS ROOTED IN FEDERAL LAW TO BE BROUGHT ON
THE LAW SIDE OF THE LOWER FEDERAL COURTS HAS RECENTLY BEEN RAISED IN
LITIGATION AND HAS BECOME THE SUBJECT OF CONFLICTING DECISIONS AMONG
COURTS OF APPEALS.  - JURISDICTION HAS BEEN SUSTAINED IN THE FIRST
CIRCUIT, DOUCETTE V. VINCENT, 194 F.2D 834, AND DENIED IN THE SECOND
AND THIRD, JORDINE V. WALLING, 185 F.2D 662; PADUANO V. YAMASHITA KISEN
KABUSHIKI KAISHA, 221 F.2D 615.  SEE ALSO JENKINS V. RODERICK, 156 F.
SUPP. 299.  SUCH CONFLICT IN THE CONSTRUCTION OF AN OLD AND IMPORTANT
STATUTE CALLS FOR A FULL EXPOSITION OF THE PROBLEM. 

ABSTRACTLY STATED, THE PROBLEM IS THE ORDINARY TASK OF A COURT TO
APPLY THE WORDS OF A STATUTE ACCORDING TO THEIR PROPER CONSTRUCTION. 
BUT "PROPER CONSTRUCTION" IS NOT SATISFIED BY TAKING THE WORDS AS IF
THEY WERE SELF-CONTAINED PHRASES.  SO CONSIDERED, THE WORDS DO NOT
YIELD THE MEANING OF THE STATUTE.  THE WORDS WE HAVE TO CONSTRUE ARE
NOT ONLY WORDS WITH A HISTORY.  THEY EXPRESS AN ENACTMENT THAT IS PART
OF A SERIAL, AND A SERIAL THAT MUST BE RELATED TO ARTICLE III OF THE
CONSTITUTION, THE WATERSHED OF ALL JUDICIARY LEGISLATION, AND TO THE
ENACTMENTS WHICH HAVE DERIVED FROM THAT ARTICLE.  MOREOVER, ARTICLE III
ITSELF HAS ITS SOURCES IN HISTORY.  THESE GIVE CONTENT AND MEANING TO
ITS PITHY PHRASES.  RATIONALLY CONSTRUED, THE ACT OF 1875 MUST BE
CONSIDERED PART OF AN ORGANIC GROWTH - PART OF THE EVOLUTIONARY PROCESS
OF JUDICIARY LEGISLATION THAT BEGAN SEPTEMBER 24, 1789, AND PROJECTS
INTO THE FUTURE. 

ARTICLE III, SEC. 2, CL. 1 (3D PROVISION) OF THE CONSTITUTION AND
BEEN THE SOURCES OF JURISDICTION IN LITIGATION BASED UPON FEDERAL
MARITIME LAW.  ARTICLE III IMPLIEDLY CONTAINED THREE GRANTS.  (1) IT
EMPOWERED CONGRESS TO CONFER ADMIRALTY AND MARITIME JURISDICTION ON THE
"TRIBUNALS INFERIOR TO THE SUPREME COURT" WHICH WERE AUTHORIZED BY ART.
I, SEC. 8, CL. 9.  (2) IT EMPOWERED THE FEDERAL COURTS IN THEIR
EXERCISE OF THE ADMIRALTY AND MARITIME JURISDICTION WHICH HAD BEEN
CONFERRED ON THEM, TO DRAW ON THE SUBSTANTIVE LAW "INHERENT IN THE
ADMIRALTY AND MARITIME JURISDICTION," CROWELL V. BENSON, 285 U.S. 22,
55, AND TO CONTINUE THE DEVELOPMENT OF THIS LAW WITHIN CONSTITUTIONAL
LIMITS.  (3) IT EMPOWERED CONGRESS TO REVISE AND SUPPLEMENT THE
MARITIME LAW WITHIN THE LIMITS OF THE CONSTITUTION.  SEE CROWELL V.
BENSON, SUPRA, AT 55. 

COURTS MARITIME JURISDICTION.  THIS JURISDICTION HAS REMAINED UNCHANGED
IN SUBSTANCE TO THE PRESENT DAY.  (FN7)  INDEED IT WAS RECOGNITION OF
THE NEED FOR FEDERAL TRIBUNALS TO EXERCISE ADMIRALTY JURISDICTION THAT
WAS ONE OF THE CONTROLLING CONSIDERATIONS FOR THE ESTABLISHMENT OF A
SYSTEM OF LOWER FEDERAL COURTS.  (FN8)  SUCH A SYSTEM IS NOT AN
INHERENT REQUIREMENT OF A FEDERAL GOVERNMENT.  THERE WAS STRONG
OPPOSITION IN THE CONSTITUTIONAL CONVENTION TO ANY SUCH INFERIOR
FEDERAL TRIBUNALS.  (FN9)  NO COMPREHENSIVE SYSTEM OF LOWER FEDERAL
COURTS HAS BEEN ESTABLISHED IN CANADA OR AUSTRALIA.  CONGRESS COULD
LEAVE THE ENFORCEMENT OF FEDERAL RIGHTS TO STATE COURTS, (FN10) AND
INDEED THE STATE COURTS, IN LARGE MEASURE, NOW EXERCISE CONCURRENT
JURISDICTION OVER A WIDE FIELD OF MATTERS OF FEDERAL CONCERN, SUBJECT
TO REVIEW OF FEDERAL ISSUES BY THE SUPREME COURT.  (FN11) 

OF MARITIME LAW; IT RECOGNIZED THAT SOME REMEDIES IN MATTERS MARITIME
HAD BEEN TRADITIONALLY ADMINISTERED BY COMMON-LAW COURTS OF THE
ORIGINAL STATES.  (FN12)  THIS ROLE OF THE STATES IN THE ADMINISTRATION
OF MARITIME LAW WAS PRESERVED IN THE FAMOUS "SAVING CLAUSE" - "SAVING
TO SUITORS, IN ALL CASES, THE RIGHT OF A COMMON-LAW REMEDY, WHERE THE
COMMON LAW IS COMPETENT TO GIVE IT."  (FN13)  SINCE THE ORIGINAL
JUDICIARY ACT ALSO ENDOWED THE FEDERAL COURTS WITH DIVERSITY
JURISDICTION, COMMON-LAW REMEDIES FOR MARITIME CAUSES COULD BE ENFORCED
BY THE THEN CIRCUIT COURTS WHEN THE PROPER DIVERSITY OF PARTIES
AFFORDED ACCESS. 

UP TO THE PASSAGE OF THE JUDICIARY ACT OF 1875 (FN14) THESE
JURISDICTIONAL BASES PROVIDED THE ONLY CLAIM FOR JURISDICTION IN THE
FEDERAL COURTS IN MARITIME MATTERS.  (FN15)  THE DISTRICT COURTS,
ENDOWED WITH "EXCLUSIVE ORIGINAL COGNIZANCE OF ALL CIVIL CAUSES OF
ADMIRALTY AND MARITIME JURISDICTION," SAT TO ENFORCE THE COMPREHENSIVE
FEDERAL INTEREST IN THE LAW OF THE SEA WHICH HAD BEEN A MAJOR REASON
FOR THEIR CREATION.  THIS JURISDICTION WAS EXERCISED ACCORDING TO THE
HISTORIC PROCEDURE IN ADMIRALTY, BY A JUDGE WITHOUT A JURY.  IN
ADDITION, COMMON-LAW REMEDIES WERE, UNDER THE SAVING CLAUSE, ENFORCIBLE
IN THE COURTS OF THE STATES AND ON THE COMMON-LAW SIDE OF THE LOWER
FEDERAL COURTS WHEN THE DIVERSE CITIZENSHIP OF THE PARTIES PERMITTED. 
EXCEPT IN DIVERSITY CASES, MARITIME LITIGATION BROUGHT IN STATE COURTS
COULD NOT BE REMOVED TO THE FEDERAL COURTS.  (FN16) 

THE JUDICIARY ACT OF 1875 EFFECTED AN EXTENSIVE ENLARGEMENT OF THE
JURISDICTION OF THE LOWER FEDERAL COURTS.  FOR THE FIRST TIME THEIR
DOORS WERE OPENED TO "ALL SUITS OF A CIVIL NATURE AT COMMON LAW OR IN
EQUITY,  ...  ARISING UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES, OR TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY
...  ."  (FN17)  FROM 1875 TO 1950 THERE IS NOT TO BE FOUND A HINT OR
SUGGESTION TO CAST DOUBT ON THE CONVICTION THAT THE LANGUAGE OF THAT
STATUTE WAS TAKEN STRAIGHT FROM ART. III, SEC. 2, CL. 1, EXTENDING THE
JUDICIAL POWER OF THE UNITED STATES "TO ALL CASES, IN LAW AND EQUITY,
ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES, AND
TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY."  INDEED
WHAT LITTLE LEGISLATIVE HISTORY THERE IS AFFIRMATIVELY INDICATES THAT
THIS WAS THE SOURCE.  (FN18)  THUS THE ACT OF 1875 DREW ON THE SCOPE OF
THIS PROVISION OF CLAUSE 1, JUST AS THE JUDICIARY ACT OF 1789 REFLECTED
THE CONSTITUTIONAL AUTHORIZATION OF CLAUSE 1 OF SECTION 2, WHICH
EXTENDED THE JUDICIAL POWER "TO ALL CASES OF ADMIRALTY AND MARITIME
JURISDICTION." 

THESE PROVISIONS OF ARTICLE III ARE TWO OF THE NINE SEPARATELY
ENUMERATED CLASSES OF CASES TO WHICH "JUDICIAL POWER" WAS EXTENDED BY
THE CONSTITUTION AND WHICH THEREBY AUTHORIZED GRANTS BY CONGRESS OF
"JUDICIAL POWER" TO THE "INFERIOR" FEDERAL COURTS.  THE VAST STREAM OF
LITIGATION WHICH HAS FLOWED THROUGH THESE COURTS FROM THE BEGINNING HAS
DONE SO ON THE ASSUMPTION THAT, IN DEALING WITH A SUBJECT AS TECHNICAL
AS THE JURISDICTION OF THE COURTS, THE FRAMERS, PREDOMINANTLY LAWYERS,
USED PRECISE, DIFFERENTIATING AND NOT REDUNDANT LANGUAGE.  THIS
ASSUMPTION, REFLECTED IN THE FEDERALIST PAPERS, (FN19) WAS
AUTHORITATIVELY CONFIRMED BY MR. CHIEF JUSTICE MARSHALL IN AMERICAN
INS. CO. V. CANTER, 1 PET. 511, 544: 

"WE ARE THEREFORE TO INQUIRE, WHETHER CASES IN ADMIRALTY, AND CASES
ARISING UNDER THE LAWS AND CONSTITUTION OF THE UNITED STATES, ARE
IDENTICAL. 

"IF WE HAVE RECOURSE TO THAT PURE FOUNTAIN FROM WHICH ALL THE
JURISDICTION OF THE FEDERAL COURTS IS DERIVED, WE FIND LANGUAGE
EMPLOYED WHICH CANNOT WELL BE MISUNDERSTOOD.  THE CONSTITUTION
DECLARES, THAT 'THE JUDICIAL POWER SHALL EXTEND TO ALL CASES IN LAW AND
EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES,
AND TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY; TO
ALL CASES AFFECTING AMBASSADORS, OR OTHER PUBLIC MINISTERS, AND
CONSULS; TO ALL CASES OF ADMIRALTY AND MARITIME JURISDICTION.'    "THE
CONSTITUTION CERTAINLY CONTEMPLATES THESE AS THREE DISTINCT CLASSES OF
CASES; AND IF THEY ARE DISTINCT, THE GRANT OF JURISDICTION OVER ONE OF
THEM DOES NOT CONFER JURISDICTION OVER EITHER OF THE OTHER TWO.  THE
DISCRIMINATION MADE BETWEEN THEM, IN THE CONSTITUTION, IS, WE THINK,
CONCLUSIVE AGAINST THEIR IDENTITY."  SEE ALSO THE SARAH, 8 WHEAT. 
391. 

THIS LUCID PRINCIPLE OF CONSTITUTIONAL CONSTRUCTION, EMBODIED IN ONE
OF MARSHALL'S FREQUENTLY QUOTED OPINIONS, WAS NEVER BROUGHT INTO
QUESTION UNTIL 1952.  (FN20)  IT HAD BEEN TREATED AS BLACK-LETTER LAW
IN LEADING TREATISES.  (FN21)  IT WAS PART OF THE REALM OF LEGAL IDEAS
IN WHICH THE AUTHORS OF THE ACT OF 1875 MOVED.  CERTAINLY THE
ACCOMPLISHED LAWYERS WHO DRAFTED THE ACT OF 1875 (FN22) DREW ON THE
LANGUAGE OF THE CONSTITUTIONAL GRANT ON THE ASSUMPTION THAT THEY WERE
DEALING WITH A DISTINCT CLASS OF CASES, THAT THE LANGUAGE INCORPORATED
IN THEIR ENACTMENT PRECLUDED "IDENTITY" WITH ANY OTHER CLASS OF CASES
CONTAINED IN ARTICLE III.  THUS THE GRANT OF JURISDICTION OVER "SUITS
OF A CIVIL NATURE AT COMMON LAW OR IN EQUITY  ...  ARISING UNDER THE
CONSTITUTION OR LAWS OF THE UNITED STATES  ...  ," IN THE ACT OF 1875,
AS DERIVED FROM ARTICLE III, COULD NOT REASONABLY BE THOUGHT OF AS
COMPREHENDING AN ENTIRELY SEPARATE AND DISTINCT CLASS OF CASES - "CASES
OF ADMIRALTY AND MARITIME JURISDICTION."  (FN23) 

OF COURSE ALL CASES TO WHICH "JUDICIAL POWER" EXTENDS "ARISE," IN A
COMPREHENSIVE, NON-JURISDICTIONAL SENSE OF THE TERM, "UNDER THIS
CONSTITUTION."  IT IS THE CONSTITUTION THAT IS THE ULTIMATE SOURCE OF
ALL "JUDICIAL POWER" - DEFINES GRANTS AND IMPLIES LIMITS - AND SO "ALL
CASES OF ADMIRALTY AND MARITIME JURISDICTION" ARISE UNDER THE
CONSTITUTION IN THE SENSE THAT THEY HAVE CONSTITUTIONAL SANCTION.  BUTY
THEY ARE NOT "CASES, IN LAW AND EQUITY, ARISING UNDER THIS
CONSTITUTION, THE LAWS OF THE UNITED STATES  ...  ." 

NOT ONLY DOES LANGUAGE AND CONSTRUCTION POINT TO THE REJECTION OF ANY
INFUSION OF GENERAL MARITIME JURISDICTION INTO THE ACT OF 1875, BUT
HISTORY AND REASON POWERFULLY SUPPORT THAT REJECTION.  THE FAR-REACHING
EXTENSION OF NATIONAL POWER RESULTING FROM THE VICTORY OF THE NORTH,
AND THE CONCOMITANT UTILIZATION OF FEDERAL COURTS FOR THE VINDICATION
OF THAT POWER IN THE RECONSTRUCTION ERA, NATURALLY LED TO ENLARGED
JURISDICTION OF THE FEDERAL COURTS OVER FEDERAL RIGHTS.  BUT NEITHER
THE AIM OF THE ACT OF 1875 TO PROVIDE A FORUM FOR THE VINDICATION OF
NEW FEDERALLY CREATED RIGHTS, NOR THE PRESSURES WHICH LED TO ITS
ENACTMENT, SUGGEST, EVEN REMOTELY, THE INCLUSION OF MARITIME CLAIMS
WITHIN THE SCOPE OF THAT STATUTE.  THE PROVISION OF THE ACT OF 1875
WITH WHICH WE ARE CONCERNED WAS DESIGNED TO GIVE A NEW CONTENT OF
JURISDICTION TO THE FEDERAL COURTS, NOT TO REAFFIRM ONE LONG
ESTABLISHED, SMOOTHLY FUNCTIONING SINCE 1789.  (FN24)  WE HAVE
UNCOVERED NO BASIS FOR FINDING THE ADDITIONAL DESIGN OF CHANGING THE
METHOD BY WHICH FEDERAL COURTS HAD ADMINISTERED ADMIRALTY LAW FROM THE
BEGINNING.  THE FEDERAL ADMIRALTY COURTS HAD BEEN COMPLETELY ADEQUATE
TO THE TASK OF PROTECTING MARITIME RIGHTS ROOTED IN FEDERAL LAW.  THERE
IS NOT THE SLIGHTEST INDICATION OF ANY INTENTION, OR OF ANY
PROFESSIONAL OR LAY DEMANDS FOR A CHANGE IN THE TIME-SANCTIONED MODE OF
TRYING SUITS IN ADMIRALTY WITHOUT A JURY, FROM WHICH IT CAN BE INFERRED
THAT BY THE NEW GRANT OF JURISDICTION OF CASES "ARISING UNDER THE
CONSTITUTION OR LAWS" A DRASTIC INNOVATION WAS IMPLIEDLY INTRODUCED IN
ADMIRALTY PROCEDURE, WHEREBY CONGRESS CHANGED THE METHOD BY WHICH
FEDERAL COURTS HAD ADMINISTERED ADMIRALTY LAW FOR ALMOST A CENTURY.  TO
DRAW SUCH AN INFERENCE IS TO FIND THAT A REVOLUTIONARY PROCEDURAL
CHANGE HAD UNDESIGNEDLY COME TO PASS.  IF WE ARE NOW TO ATTRIBUTE SUCH
A RESULT TO CONGRESS THE SOLE REMAINING JUSTIFICATION FOR THE FEDERAL
ADMIRALTY COURTS WHICH HAVE PLAYED SUCH A VITAL ROLE IN OUR FEDERAL
JUDICIAL SYSTEM FOR 169 YEARS WILL BE TO PROVIDE A FEDERAL FORUM FOR
THE SMALL NUMBER OF MARITIME CLAIMS WHICH DERIVE FROM STATE LAW, AND TO
AFFORD THE ANCIENT REMEDY OF A LIBEL IN REM IN THOSE LIMITED INSTANCES
WHEN AN IN PERSONAM JUDGMENT WOULD NOT SUFFICE TO SATISFY A CLAIM. 
(FN25) 

INDEED, UNTIL 1950, IN A DICTUM IN JANSSON V. SWEDISH AMERICAN LINE,
185 F.2D 212, 217-218 (C.A. 1ST CIR.), FOLLOWED BY AN OPINION IN
DOUCETTE V. VINCENT, 194 F.2D 834, JUDGES, SCHOLARS AND LAWYERS ALIKE
MADE THE UNQUESTIONED ASSUMPTION THAT THE ORIGINAL MARITIME
JURISDICTION OF THE FEDERAL COURTS HAD, FOR ALL PRACTICAL PURPOSES,
BEEN LEFT UNCHANGED SINCE THE ACT OF 1789.  THUS MR. JUSTICE CLIFFORD,
AN EXPERIENCED ADMIRALTY JUDGE, IN 1876, ONE YEAR AFTER THE PASSAGE OF
THE ACT HERE IN QUESTION, COULD REITERATE THE CLASSIC FORMULATION
WITHOUT THE FAINTEST INDICATION OF DOUBT AS TO ITS CONTINUED VITALITY. 
"PARTIES IN MARITIME CASES ARE NOT  ...  COMPELLED TO PROCEED IN THE
ADMIRALTY AT ALL, AS THEY MAY RESORT TO THEIR COMMON-LAW REMEDY IN THE
STATE COURTS, OR IN THE CIRCUIT COURT, IF THE PARTY SEEKING REDRESS AND
THE OTHER PARTY ARE CITIZENS OF DIFFERENT STATES."  (FN26)  ON THE
BASIS OF AN EXAMINATION OF SIXTY-SIX TREATISES ON FEDERAL JURISDICTION
AND ON ADMIRALTY, AND OF A SEARCH OF THE REPORTS IT CAN BE CONFIDENTLY
ASSERTED THAT FOR THE SEVENTY-FOUR YEARS FOLLOWING MR. JUSTICE
CLIFFORD'S OPINION THERE IS NOT A SINGLE PROFESSIONAL UTTERANCE OF
LEGAL OPINION - BY JUDGES, LAWYERS, OR COMMENTATORS - DISAGREEING WITH
HIS FORMULATION.  (FN27)  NEGATIVE TESTIMONY IS OFTEN AS COMPELLING AS
BITS OF AFFIRMATIVE EVIDENCE.  IT IS ESPECIALLY COMPELLING WHEN IT
COMES FROM THOSE WHOSE SCHOLARLY OR PROFESSIONAL SPECIALTY WAS THE
JURISDICTION OF THE FEDERAL COURTS AND THE PRACTICE OF MARITIME LAW. 
PETITIONER NOW ASKS US TO HOLD THAT NO STUDENT OF THE JURISDICTION OF
THE FEDERAL COURTS OR OF ADMIRALTY, NO JUDGE, AND NONE OF THE LEARNED
AND ALERT MEMBERS OF THE ADMIRALTY BAR WERE ABLE, FOR SEVENTY-FIVE
YEARS, TO DISCERN THE DRASTIC CHANGE NOW ASSERTED TO HAVE BEEN
CONTRIVED IN ADMIRALTY JURISDICTION BY THE ACT OF 1875.  IN LIGHT OF
SUCH IMPRESSIVE TESTIMONY FROM THE PAST THE CLAIM OF A SUDDEN DISCOVERY
OF A HIDDEN LATENT MEANING IN AN OLD TECHNICAL PHRASE IS SURELY
SUSPECT. 

THE HISTORY OF ARCHEOLOGY IS REPLETE WITH THE UNEARTHING OF RICHES
BURIED FOR CENTURIES.  OUR LEGAL HISTORY DOES NOT, HOWEVER, OFFER A
SINGLE ARCHEOLOGICAL DISCOVERY OF NEW, REVOLUTIONARY MEANING IN READING
AN OLD JUDICIARY ENACTMENT.  (FN27A)  THE PRESUMPTION IS POWERFUL THAT
SUCH A FAR-REACHING, DISLOCATING CONSTRUCTION AS PETITIONER WOULD NOW
HAVE US FIND IN THE ACT OF 1875 WAS NOT UNCOVERED BY JUDGES, LAWYERS OR
SCHOLARS FOR SEVENTY-FIVE YEARS BECAUSE IT IS NOT THERE. 

IT IS ALSO SIGNIFICANT THAT IN THE ENTIRE HISTORY OF FEDERAL MARITIME
LEGISLATION, WHETHER BEFORE THE PASSAGE OF THE ACT OF 1875 (E.G., THE
GREAT LAKES ACT - ALSO A GENERAL JURISDICTIONAL STATUTE AND ONE OFTEN
TERMED AN ANOMALY IN THE MARITIME LAW BECAUSE OF ITS JURY TRIAL
PROVISION), OR AFTER (THE JONES ACT), CONGRSSS HAS NOT ONCE LEFT THE
AVAILABILITY OF A TRIAL ON THE LAW SIDE TO INFERENCE.  IT HAS MADE
SPECIFIC PROVISIONS.  (FN28)  IT IS DIFFICULT TO ACCEPT THAT IN 1875,
AND IN 1875 ALONE, A MOST FAR-REACHING CHANGE WAS MADE
SUBTERRANEOUSLY. 

NOT ONLY WOULD THE INFUSION OF GENERAL MARITIME JURISDICTION INTO THE
ACT OF 1875 DISREGARD THE OBVIOUS CONSTRUCTION OF THAT STATUTE. 
IMPORTANT DIFFICULTIES OF JUDICIAL POLICY WOULD FLOW FROM SUCH AN
INTERPRETATION, AN INTERPRETATION WHICH WOULD HAVE A DISRUPTIVE EFFECT
ON THE TRADITIONAL ALLOCATION OF POWER OVER MARITIME AFFAIRS IN OUR
FEDERAL SYSTEM. 

THUS THE HISTORIC OPTION OF A MARITIME SUITOR PURSUING A COMMON-LAW
REMEDY TO SELECT HIS FORUM, STATE OR FEDERAL, WOULD BE TAKEN AWAY BY AN
EXPANDED VIEW OF SEC. 1331, (FN29)  SINCE SAVING-CLAUSE ACTIONS WOULD
THEN BE FREELY REMOVABLE UNDER SEC. 1441 OF TITLE 28.  (FN30)  THE
INTERPRETATION OF THE ACT OF 1875 CONTENDED FOR WOULD HAVE CONSEQUENCES
MORE DEEPLY FELT THAN THE ELIMINATION OF A SUITOR'S TRADITIONAL CHOICE
OF FORUM.  BY MAKING MARITIME CASES REMOVABLE TO THE FEDERAL COURTS IT
WOULD MAKE CONSIDERABLE INROADS INTO THE TRADITIONALLY EXERCISED
CONCURRENT JURISDICTION OF THE STATE COURTS IN ADMIRALTY MATTERS - A
JURISDICTION WHICH IT WAS THE UNQUESTIONED AIM OF THE SAVING CLAUSE OF
1789 TO PRESERVE.  THIS DISRUPTION OF PRINCIPLE IS EMPHASIZED BY THE
FEW CASES ACTUALLY INVOLVED.  (FN31)  THIS SMALL NUMBER OF CASES IS
ONLY IMPORTANT IN THAT IT NEGATIVES THE PRESSURE OF ANY PRACTICAL
CONSIDERATION FOR THE SUBVERSION OF A PRINCIPLE SO LONG-ESTABLISHED AND
SO DEEPLY ROOTED.  THE ROLE OF THE STATES IN THE DEVELOPMENT OF
MARITIME LAW IS A ROLE WHOSE SIGNIFICANCE IS ROOTED IN THE JUDICIARY
ACT OF 1789 AND THE DECISIONS OF THIS COURT.  (FN32)  RECOGNITION OF
THE PART THE STATES HAVE PLAYED FROM THE BEGINNING HAS A DUAL
SIGNIFICANCE.  IT INDICATES THE EXTENT TO WHICH AN EXPANDED VIEW OF THE
ACT OF 1875 WOULD EVISCERATE THE POSTULATES OF THE SAVING CLAUSE, AND
IT UNDERMINES THE THEORETICAL BASIS FOR GIVING THE ACT OF 1875 A BRAND
NEW MEANING. 

ALTHOUGH THE CORPUS OF ADMIRALTY LAW IS FEDERAL IN THE SENSE THAT IT
DERIVES FROM THE IMPLICATIONS OF ARTICLE III EVOLVED BY THE COURTS, TO
CLAIM THAT ALL ENFORCED RIGHTS PERTAINING TO MATTERS MARITIME ARE
ROOTED IN FEDERAL LAW IS A DESTRUCTIVE OVERSIMPLIFICATION OF THE HIGHLY
INTRICATE INTERPLAY OF THE STATES AND THE NATIONAL GOVERNMENT IN THEIR
REGULATION OF MARITIME COMMERCE.  IT IS TRUE THAT STATE LAW MUST YIELD
TO THE NEEDS OF A UNIFORM FEDERAL MARITIME LAW WHEN THIS COURT FINDS
INROADS ON A HARMONIOUS SYSTEM.  (FN33)  BUT THIS LIMITATION STILL
LEAVES THE STATES A WIDE SCOPE.  STATE-CREATED LIENS ARE ENFORCED IN
ADMIRALTY.  (FN34)  STATE REMEDIES FOR WRONGFUL DEATH AND STATE
STATUTES PROVIDING FOR THE SURVIVAL OF ACTIONS, BOTH HISTORICALLY
ABSENT FROM THE RELIEF OFFERED BY THE ADMIRALTY, (FN35) HAVE BEEN
UPHELD WHEN APPLIED TO MARITIME CAUSES OF ACTION.  (FN36)  FEDERAL
COURTS HAVE ENFORCED THESE STATUTES.  (FN37)  STATE RULES FOR THE
PARTITION AND SALE OF SHIPS, (FN38) STATE LAWS GOVERNING THE SPECIFIC
PERFORMANCE OF ARBITRATION AGREEMENTS, (FN39) STATE LAWS REGULATING THE
EFFECT OF A BREACH OF WARRANTY UNDER CONTRACTS OF MARITIME INSURANCE
(FN40) - ALL THESE LAWS AND OTHERS HAVE BEEN ACCEPTED AS RULES OF
DECISION IN ADMIRALTY CASES, EVEN, AT TIMES, WHEN THEY CONFLICTED WITH
A RULE OF MARITIME LAW WHICH DID NOT REQUIRE UNIFORMITY.  "IN THE FIELD
OF MARITIME CONTRACTS," THIS COURT HAS SAID, "AS IN THAT OF MARITIME
TORTS, THE NATIONAL GOVERNMENT HAS LEFT MUCH REGULATORY POWER IN THE
STATES."  (FN41)  THUS, IF ONE THING IS CLEAR IT IS THAT THE SOURCE OF
LAW IN SAVING-CLAUSE ACTIONS CANNOT BE DESCRIBED IN ABSOLUTE TERMS. 
MARITIME LAW IS NOT A MONISTIC SYSTEM.  THE STATE AND FEDERAL
GOVERNMENTS JOINTLY EXERT REGULATORY POWERS TODAY AS THEY HAVE PLAYED
JOINT ROLES IN THE DEVELOPMENT OF MARITIME LAW THROUGHOUT OUR HISTORY. 
(FN42)  THIS SHARING OF COMPETENCE IN ONE ASPECT OF OUR FEDERALISM HAS
BEEN TRADITIONALLY EMBODIED IN THE SAVING CLAUSE OF THE ACT OF 1789. 
HERE, AS IS SO OFTEN TRUE IN OUR FEDERAL SYSTEM, ALLOCATIONS OF
JURISDICTION HAVE BEEN CAREFULLY WROUGHT TO CORRESPOND TO THE REALITIES
OF POWER AND INTEREST AND NATIONAL POLICY.  TO GIVE A NOVEL SWEEP TO
THE ACT WOULD DISRUPT TRADITIONAL MARITIME POLICIES AND QUITE
GRATUITOUSLY DISTURB A COMPLEMENTARY, HISTORIC INTERACTING FEDERAL
STATE RELATIONSHIP. 

AN INFUSION OF GENERAL MARITIME JURISDICTION INTO THE "FEDERAL
QUESTION" GRANT WOULD NOT OCCASION MERELY AN ISOLATED CHANGE; IT WOULD
GENERATE MANY NEW COMPLICATED PROBLEMS.  IF JURISDICTION OF MARITIME
CLAIMS WERE ALLOWED TO BE INVOKED UNDER SEC. 1331, IT WOULD BECOME
NECESSARY FOR COURTS TO DECIDE WHETHER THE ACTION "ARISES UNDER FEDERAL
LAW," AND THIS JURISDICTIONAL DECISION WOULD LARGELY DEPEND ON WHETHER
THE GOVERNING LAW IS STATE OR FEDERAL.  DETERMINATIONS OF THIS NATURE
ARE AMONG THE MOST DIFFICULT AND SUBTLE THAT FEDERAL COURTS ARE CALLED
UPON TO MAKE.  (FN43)  LAST TERM'S DECISION IN MCALLISTER V. MAGNOLIA
PETROLEUM CO., 357 U.S. 221, ILLUSTRATES THE DIFFICULTIES RAISED BY THE
ATTEMPTED APPLICATION OF A STATE STATUTE OF LIMITATIONS TO MARITIME
PERSONAL INJURY ACTIONS.  THESE PROBLEMS RESULT FROM THE EFFORT TO FIT
STATE LAWS INTO THE SCHEME OF FEDERAL MARITIME LAW. 

THESE DIFFICULTIES, WHILE NOURISHING ACADEMIC SPECULATION, HAVE
RARELY CONFRONTED THE COURTS.  THIS COURT HAS BEEN ABLE TO WAIT UNTIL
AN ACTUAL CONFLICT BETWEEN STATE AND FEDERAL STANDARDS HAS ARISEN, AND
ONLY THEN PROCEED TO RESOLVE THE PROBLEM OF WHETHER THE STATE WAS FREE
TO REGULATE OR FEDERAL LAW MUST GOVERN.  FOR EXAMPLE, IF A STATE
ALLOWED THE SURVIVAL OF A CAUSE OF ACTION BASED ON UNSEAWORTHINESS AS
DEFINED IN THE MARITIME LAW IT WAS IMMATERIAL WHETHER THE STANDARD WAS
FEDERAL AND GOVERNED BY DECISIONS OF THIS COURT, OR WAS SUBJECT TO
STATE VARIATIONS.  (FN44)  THUS WE HAVE BEEN ABLE TO DEAL WITH SUCH
CONCEPTUAL PROBLEMS IN THE CONTEXT OF A SPECIFIC CONFLICT AND A
SPECIFIC APPLICATION OF POLICY, AS IS SO WELL ILLUSTRATED BY THE
MCALLISTER CASE,  HOWEVER, SUCH PRACTICAL CONSIDERATIONS FOR
ADJUDICATION WOULD BE UNAVAILABLE UNDER AN EXPANDED VIEW OF SEC. 1331. 
FEDERAL COURTS WOULD BE FORCED TO DETERMINE THE RESPECTIVE SPHERES OF
STATE AND FEDERAL LEGISLATIVE COMPETENCE, THE SOURCE OF THE GOVERNING
LAW, AS A PRELIMINARY QUESTION OF JURISDICTION; FOR ONLY IF THE
APPLICABLE LAW IS "FEDERAL" LAW WOULD JURISDICTION BE PROPER UNDER SEC.
1331.  THE NECESSITY FOR JURISDICTIONAL DETERMINATIONS COUCHED IN TERMS
OF "STATE" OR "FEDERAL LAW" WOULD DESTROY THAT SALUTARY FLEXIBILITY
WHICH ENABLES THE COURTS TO DEAL WITH SOURCE-OF-LAW PROBLEMS IN LIGHT
OF THE NECESSITIES ILLUMINATED BY THE PARTICULAR QUESTION TO BE
ANSWERED.  CERTAINLY SOUND JUDICIAL POLICY DOES NOT ENCOURAGE A
SITUATION WHICH NECESSITATES CONSTANT ADJUDICATION OF THE BOUNDARIES OF
STATE AND FEDERAL COMPETENCE.    TYPICAL ALSO OF THE CONSEQUENCES THAT
ARE IMPLICIT IN THIS PROPOSED MODIFICATION OF MARITIME JURISDICTION, IS
THE RESTRICTION OF VENUE THAT WOULD RESULT FROM THIS NOVEL
INTERPRETATION OF SEC. 1331 OF THE ACT OF 1875.  LITIGANTS OF DIVERSE
CITIZENSHIP ARE NOW ABLE TO INVOKE THE FEDERAL LAW FORUM FOR THE TRIAL
OF SAVING-CLAUSE CASES.  SUCH LITIGANTS ARE AIDED IN THEIR SEARCH FOR A
FEDERAL FORUM BY THE LIBERALITY OF THE VENUE PROVISIONS APPLICABLE TO
ACTIONS BASED ON DIVERSITY OF CITIZENSHIP.  THESE PROVISIONS ALLOW THE
ACTION TO BE BROUGHT EITHER "WHERE ALL PLAINTIFFS OR ALL DEFENDANTS
RESIDE."  (FN45)  IF SAVING-CLAUSE ACTIONS WERE TO BE BROUGHT WITHIN
THE SCOPE OF SEC. 1331, THIS CHOICE COULD BE NO LONGER MADE. 
PLAINTIFFS WOULD BE SUBJECT TO THE RIGID REQUIREMENT THAT SUIT MUST BE
"BROUGHT ONLY IN THE JUDICIAL DISTRICT WHERE ALL DEFENDANTS RESIDE  ...
," (FN46) AND THIS WOULD BE SO EVEN WHERE THERE IS, IN FACT, DIVERSITY
OF CITIZENSHIP.  (FN47) 

IN THE FACE OF THE CONSISTENT AND COMPELLING INFERENCES TO BE DRAWN
FROM HISTORY AND POLICY AGAINST A BREAK WITH A LONG PAST IN THE
APPLICATION OF THE ACT OF 1875, WHAT JUSTIFICATION IS OFFERED FOR THIS
NOVEL VIEW OF THE STATUTE?  SUPPORT IS ULTIMATELY REDUCED, ONE IS
COMPELLED TO SAY, TO EMPTY LOGIC, REFLECTING A FORMAL SYLLOGISM.  THE
ARGUMENT MAY THUS BE FAIRLY SUMMARIZED.  IT WAS NOT UNTIL RECENTLY, IN
A LINE OF DECISION CULMINATING IN POPE & TALBOT, INC., V. HAWN, 346
U.S. 406, THAT IT BECAME APPARENT THAT THE SOURCE OF ADMIRALTY RIGHTS
WAS A CONTROLLING BODY OF FEDERAL ADMIRALTY LAW.  THIS DEVELOPMENT LED
TO A DEEPENED CONSIDERATION OF THE JURISDICTIONAL CONSEQUENCES OF THE
FEDERAL SOURCE OF MARITIME LAW.  AND SO ONE TURNS TO THE ACT OF 1875. 
THE ACT OF 1875 GAVE ORIGINAL JURISDICTION TO THE FEDERAL COURTS OVER
ALL CASES ARISING UNDER THE CONSTITUTION AND LAWS OF THE UNITED
STATES.  MARITIME LAW WAS FEDERAL LAW BASED ON A CONSTITUTIONAL GRANT
OF JURISDICTION.   THUS MARITIME CASES AROSE UNDER THE CONSTITUTION OR
FEDERAL LAWS.  BY THIS MODE OF REASONING THE WORDS OF THE
JURISDICTIONAL STATUTE ARE FOUND TO "FIT LIKE A GLOVE."  (FN48) 

ALTHOUGH IT IS TRUE THAT THE SUPREMACY OF FEDERAL MARITIME LAW OVER
CONFLICTING STATE LAW HAS RECENTLY BEEN GREATLY EXTENDED, THE FEDERAL
NATURE OF THE MARITIME LAW ADMINISTERED IN THE FEDERAL COURTS HAS LONG
BEEN AN ACCEPTED PART OF ADMIRALTY JURISPRUDENCE.  THE CLASSIC
STATEMENT OF MR. JUSTICE HOLMES IN THE WESTERN MAID, 257 U.S. 419, 432,
SUMMED UP THE ACCEPTED VIEW THAT MARITIME LAW DERIVED ITS FORCE FROM
THE NATIONAL GOVERNMENT AND WAS PART OF THE LAWS OF THE UNITED STATES;
AND THIS WAS MERELY A RESTATEMENT OF A VIEW WHICH WAS CLEARLY SET FORTH
IN 1874 IN THE LOTTAWANNA, 21 WALL.  558.  (FN49)  THUS THE THEORY
WHICH UNDERLIES THE EFFORT TO INFUSE GENERAL MARITIME JURISDICTION INTO
THE ACT OF 1875 RESTS ON NO NOVEL DEVELOPMENT IN MARITIME LAW, BUT ON
PREMISES AS AVAILABLE IN 1875 AS THEY ARE TODAY. 

THE SIMPLE LANGUAGE OF THE ACT OF 1875 CONCEALS COMPLEXITIES OF
CONSTRUCTION AND POLICY WHICH HAVE BEEN ALREADY EXAMINED.  WHEN WE
APPLY TO THE STATUTE, AND TO THE CLAUSE OF ARTICLE III FROM WHICH IT IS
DERIVED, COMMONSENSICAL AND LAWYER-LIKE MODES OF CONSTRUCTION, AND THE
EVIDENCE OF HISTORY AND LOGIC, IT BECOMES CLEAR THAT THE WORDS OF THAT
STATUTE DO NOT EXTEND, AND COULD NOT REASONABLY BE INTERPRETED TO
EXTEND, TO CASES OF ADMIRALTY AND MARITIME JURISDICTION.  THE STATUTE
IS PHRASED IN TERMS WHICH, AS A MATTER OF INERT LANGUAGE, LIFELESS
WORDS DETACHED FROM THE INTERPRETIVE SETTING OF HISTORY, LEGAL LORE,
AND DUE REGARD FOR THE INTERESTS OF OUR FEDERAL SYSTEM, MAY BE USED AS
PLAYTHINGS WITH WHICH TO RECONSTRUCT THE ACT TO INCLUDE CASES OF
ADMIRALTY AND MARITIME JURISDICTION.  IF THE HISTORY OF THE
INTERPRETATION OF JUDICIARY LEGISLATION TEACHES ANYTHING, IT TEACHES
THE DUTY TO REJECT TREATING SUCH STATUTES AS A WOODEN SET OF SELF
SUFFICIENT WORDS - A FAILING TO WHICH THE COURT HAS NOT BEEN SUBJECT
SINCE THE PACIFIC RAILROAD REMOVAL CASES.  (FN50) THE ACT OF 1875 IS
BROADLY PHRASED, BUT IT HAS BEEN CONTINUOUSLY CONSTRUED AND LIMITED IN
THE LIGHT OF THE HISTORY THAT PRODUCED IT, THE DEMANDS OF REASON AND
COHERENCE, AND THE DICTATES OF SOUND JUDICIAL POLICY WHICH HAVE EMERGED
FROM THE ACT'S FUNCTION AS A PROVISION IN THE MOSAIC OF FEDERAL
JUDICIARY LEGISLATION.  IT IS A STATUTE, NOT A CONSTITUTION, WE ARE
EXPOUNDING.  (FN51) 

THE CONSIDERATIONS OF HISTORY AND POLICY WHICH INVESTIGATION HAS
ILLUMINATED ARE POWERFULLY REINFORCED BY THE DEEPLY FELT AND
TRADITIONAL RELUCTANCE OF THIS COURT TO EXPAND THE JURISDICTION OF THE
FEDERAL COURTS THROUGH A BROAD READING OF JURISDICTIONAL STATUTES.  A
RELUCTANCE WHICH MUST BE EVEN MORE FORCEFULLY FELT WHEN THE EXPANSION
IS PROPOSED, FOR THE FIRST TIME, EIGHTY-THREE YEARS AFTER THE
JURISDICTION HAS BEEN CONFERRED.  MR. JUSTICE STONE, SPEAKING OF THE
ACT OF 1875, POINTED OUT THAT "THE POLICY OF THE STATUTE CALLS FOR ITS
STRICT CONSTRUCTION  ...  .  DUE REGARD FOR THE RIGHTFUL INDEPENDENCE
OF STATE GOVERNMENTS, WHICH SHOULD ACTUATE FEDERAL COURTS, REQUIRES
THAT THEY SCRUPULOUSLY CONFINE THEIR OWN JURISDICTION TO THE PRECISE
LIMITS WHICH THE STATUTE HAS DEFINED."  (FN52)  CERTAINLY THIS WISE
COUNSEL IS DEEPLY PERSUASIVE WHEN WE ARE ASKED TO ACCEPT A DOCTRINE
WHICH WOULD CUT INTO A JURISDICTION EXERCISED BY THE STATES SINCE
COLONIAL DAYS.  OF COURSE IF COMPELLING REASONS CAN BE FOUND FOR
REDEFINING THE STATUTE, IF AN ANCIENT ERROR CRIES OUT FOR
RECTIFICATION, WE SHOULD NOT BE DETERRED FROM APPLYING NEW
ILLUMINATIONS TO THE INTERPRETATION OF PAST ENACTMENTS.  HOWEVER, IN
OUR EXAMINATION OF THE MANIFOLD CONSIDERATIONS OF HISTORY, OF
CONSTRUCTION, OF THE POLICY WHICH UNDERLIES THE ALLOCATION OF
COMPETENCE OVER MARITIME MATTERS IN OUR FEDERAL SYSTEM, AND THE
CONSIDERATIONS OF JUDICIAL ADMINISTRATION AND PROCEDURE CALLED INTO
QUESTION - ALL OF WHICH DIRECT US TO THE REJECTION OF THE PROPOSED
INFUSION OF GENERAL MARITIME JURISDICTION INTO THE ACT OF 1875 - WE ARE
POINTED TO NO CONSIDERATIONS WHICH LEAD US TO OVERTURN THE EXISTING
MARITIME JURISDICTIONAL SYSTEM - A SYSTEM WHICH IS AS OLD, AND AS
JUSTIFIED BY THE EXPERIENCE OF HISTORY, AS THE FEDERAL COURTS
THEMSELVES. 

(C)  "PENDENT" AND DIVERSITY JURISDICTION.  - REJECTION OF THE
PROPOSED NEW READING OF SEC. 1331 DOES NOT PRECLUDE CONSIDERATION OF
PETITIONER'S CLAIMS UNDER THE GENERAL MARITIME LAW.  THESE CLAIMS
CANNOT, WE HAVE SEEN, BE JUSTIFIED UNDER SEC. 1331.  HOWEVER, THE
DISTRICT COURT MAY HAVE JURISDICTION OF THEM "PENDENT" TO ITS
JURISDICTION UNDER THE JONES ACT.  OF COURSE THE CONSIDERATIONS WHICH
CALL FOR THE EXERICSE OF PENDENT JURISDICITON OF A STATE CLAIM RELATED
TO A PENDING FEDERAL CAUSE OF ACTION WITHIN THE APPROPRIATE SCOPE OF
THE DOCTRINE OF HURN V. OURSLER, 289 U.S. 238, ARE NOT THE SAME WHEN,
AS HERE, WHAT IS INVOLVED ARE RELATED CLAIMS BASED ON THE FEDERAL
MARITIME LAW.  WE PERCEIVE NO BARRIER TO THE EXERCISE OF "PENDENT
JURISDICTION" IN THE VERY LIMITED CIRCUMSTANCES BEFORE US.  HERE WE
MERELY DECIDE THAT A DISTRICT JUDGE HAS JURISDICTION TO DETERMINE
WHETHER A CAUSE OF ACTION HAS BEEN STATED IF THAT JURISDICTION HAS BEEN
INVOKED BY A COMPLAINT AT LAW RATHER THAN BY A LIBEL IN ADMIRALTY, AS
LONG AS THE COMPLAINT ALSO PROPERLY ALLEGES A CLAIM UNDER THE JONES
ACT.  WE ARE NOT CALLED UPON TO DECIDE WHETHER THE DISTRICT COURT MAY
SUBMIT TO THE JURY THE "PENDENT" CLAIMS UNDER THE GENERAL MARITIME LAW
IN THE EVENT THAT A CAUSE OF ACTION BE FOUND TO EXIST. 

RESPONDENTS GARCIA & DIAZ AND QUIN LUMBER COMPANY, NEW YORK
CORPORATIONS, AND INTERNATIONAL TERMINAL OPERATING COMPANY, A DELAWARE
CORPORATION, ARE OF DIVERSE CITIZENSHIP FROM THE PETITIONER, A SPANISH
SUBJECT.  SINCE THE JONES ACT PROVIDES AN INDEPENDENT BASIS OF FEDERAL
JURISDICTION OVER THE NON-DIVERSE RESPONDENT, COMPANIA TRASATLANTICA,
THE RULE OF STRAWBRIDGE V. CURTISS, 3 CRANCH 267, DOES NOT REQUIRE
DISMISSAL OF THE CLAIMS AGAINST THE DIVERSE RESPONDENTS.  ACCORDINGLY,
THE DISMISSAL OF THESE CLAIMS FOR LACK OF JURISDICTION WAS ERRONEOUS. 

                 II.  THE CLAIMS AGAINST COMPANIA TRASATLANTICA -

              THE CHOICE-OF-LAW PROBLEM 

WE NOW TURN TO THE CLAIMS AGAINST COMPANIA TRASATLANTICA UNDER THE
JONES ACT AND THE GENERAL MARITIME LAW.  IN LIGHT OF OUR RECENT
DECISION IN LAURITZEN V. LARSEN, 345 U.S. 571, THESE CLAIMS PRESENT THE
NARROW ISSUE, WHETHER THE MARITIME LAW OF THE UNITED STATES MAY BE
APPLIED IN AN ACTION INVOLVING AN INJURY SUSTAINED IN AN AMERICAN PORT
BY A FOREIGN SEAMAN ON BOARD A FOREIGN VESSEL IN THE COURSE OF A VOYAGE
BEGINNING AND ENDING IN A FOREIGN COUNTRY. 

WHILE LAURITZEN V. LARSEN INVOLVED CLAIMS ASSERTED UNDER THE JONES
ACT, THE PRINCIPLES ON WHICH IT WAS DECIDED DID NOT DERIVE FROM THE
TERMS OF THAT STATUTE.  WE POINTED OUT THAT THE JONES ACT HAD BEEN
WRITTEN "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."  345 U.S.,
AT 577.  THUS THE JONES ACT WAS APPLIED "TO FOREIGN EVENTS, FOREIGN
SHIPS AND FOREIGN SEAMEN ONLY IN ACCORDANCE WITH THE USUAL DOCTRINE AND
PRACTICES OF MARITIME LAW."  345 U.S., AT 581.  THE BROAD PRINCIPLES OF
CHOICE OF LAW AND THE APPLICABLE CRITERIA OF SELECTION SET FORTH IN
LAURITZEN WERE INTENDED TO GUIDE COURTS IN THE APPLICATION OF MARITIME
LAW GENERALLY.  OF COURSE, DUE REGARD MUST BE HAD FOR THE DIFFERING
INTERESTS ADVANCED BY VARIED ASPECTS OF MARITIME LAW.  BUT THE
SIMILARITY IN PURPOSE AND FUNCTION OF THE JONES ACT AND THE GENERAL
MARITIME PRINCIPLES OF COMPENSATION FOR PERSONAL INJURY, ADMIT OF NO
RATIONAL DIFFERENTIATION OF TREATMENT FOR CHOICE OF LAW PURPOSES.  THUS
THE REASONING OF LAURITZEN V. LARSEN GOVERNS ALL CLAIMS HERE.  (FN53) 

WE ARE NOT HERE DEALING WITH THE SOVEREIGN POWER OF THE UNITED STATES
TO APPLY ITS LAW TO SITUATIONS INVOLVING ONE OR MORE FOREIGN CONTACTS. 
(FN54)  BUT IN THE ABSENCE OF A CONTRARY CONGRESSIONAL DIRECTION, WE
MUST APPLY THOSE PRINCIPLES OF CHOICE OF LAW THAT ARE CONSONANT WITH
THE NEEDS OF A GENERAL FEDERAL MARITIME LAW AND WITH DUE RECOGNITION OF
OUR SELF-REGARDING RESPECT FOR THE RELEVANT INTERESTS OF FOREIGN
NATIONS IN THE REGULATION OF MARITIME COMMERCE AS PART OF THE
LEGITIMATE CONCERN OF THE INTERNATIONAL COMMUNITY.  THESE PRINCIPLES DO
NOT DEPEND UPON A MECHANICAL APPLICATION OF A DOCTRINE LIKE THAT OF LEX
LOCI DELICTI COMMISSI.  THE CONTROLLING CONSIDERATIONS ARE THE
INTERACTING INTERESTS OF THE UNITED STATES AND OF FOREIGN COUNTRIES,
AND IN ASSESSING THEM WE MUST MOVE WITH THE CIRCUMSPECTION APPROPRIATE
WHEN THIS COURT IS ADJUDIATING ISSUES INEVITABLY ENTANGELD IN THE
CONDUCT OF OUR INTERNATIONAL RELATIONS.  WE NEED NOT REPEAT THE
EXPOSITION OF THE PROBLEM WHICH WE GAVE IN LAURITZEN V. LARSEN.  DUE
REGARD FOR THE RELEVANT FACTORS WE THERE ENUMERATED, AND THE WEIGHT WE
INDICATED TO BE GIVEN TO EACH, PRECLUDE APPLICATION OF AMERICAN LAW TO
THE CLAIMS HERE ASSERTED. 

IN THIS CASE, AS IN LAURITZEN V. LARSEN, THE SHIP IS OF FOREIGN
REGISTRY AND SAILS UNDER A FOREIGN FLAG.  BOTH THE INJURED SEAMAN AND
THE OWNER OF THE SHIP HAVE A SPANISH STATUS:  ROMERO IS A SPANISH
SUBJECT AND COMPANIA TRASATLANTICA A SPANISH CORPORATION.  UNLIKE THE
CONTRACT IN LAURITZEN, ROMERO'S AGREEMENT OF HIRE WAS ENTERED INTO IN
SPAIN.  BY NOTING THIS FACT, WE DO NOT MEAN TO QUALIFY OUR EARLIER VIEW
THAT THE PLACE OF CONTRACTING IS LARGELY FORTUITOUS AND OF LITTLE
IMPORTANCE IN DETERMINING THE APPLICABLE LAW IN AN ACTION OF MARINE
TORT.  HERE, AS IN LAURITZEN, THE FOREIGN LAW PROVIDES A REMEDY FOR THE
INJURY, AND CLAIMS UNDER THAT LAW MAY BE CONVENIENTLY ASSERTED BEFORE
THE SPANISH CONSUL IN NEW YORK.  (FN55) 

IN LAURITZEN V. LARSEN THE INJURY OCCURRED IN THE PORT OF HAVANA AND
THE ACTION WAS BROUGHT IN NEW YORK.  ROMERO WAS INJURED WHILE
TEMPORARILY IN AMERICAN TERRITORIAL WATERS.  THIS DIFFERENCE DOES NOT
CALL FOR A DIFFERENCE IN RESULT.  DISCUSSING THE SIGNIFICANCE OF THE
PLACE OF THE WRONGFUL ACT, WE POINTED OUT IN LAURITZEN THAT "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.  ...
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."  345 U.S., AT 583-584.  ALTHOUGH
THE PLACE OF INJURY HAS OFTEN BEEN DEEMED DETERMINATIVE OF THE CHOICE
OF LAW IN MUNICIPAL CONFLICT OF LAWS, SUCH A RULE DOES NOT FIT THE
ACCOMMODATIONS THAT BECOME RELEVANT IN FAIR AND PRUDENT REGARD FOR THE
INTERESTS OF FOREIGN NATIONS IN THE REGULATION OF THEIR OWN SHIPS AND
THEIR OWN NATIONALS, AND THE EFFECT UPON OUR INTERESTS OF OUR TREATMENT
OF THE LEGITIMATE INTERESTS OF FOREIGN NATIONS.  TO IMPOSE ON SHIPS THE
DUTY OF SHIFTING FROM ONE STANDARD OF COMPENSATION TO ANOTHER AS THE
VESSEL PASSES THE BOUNDARIES OF TERRITORIAL WATERS WOULD BE NOT ONLY AN
ONEROUS BUT ALSO AN UNDULY SPECULATIVE BURDEN, DISRUPTIVE OF
INTERNATIONAL COMMERCE AND WITHOUT BASIS IN THE EXPRESSED POLICIES OF
THIS COUNTRY.  THE AMOUNT AND TYPE OF RECOVERY WHICH A FOREIGN SEAMAN
MAY RECEIVE FROM HIS FOREIGN EMPLOYER WHILE SAILING ON A FOREIGN SHIP
SHOULD NOT DEPEND ON THE WHOLLY FORTUITOUS CIRCUMSTANCE OF THE PLACE OF
INJURY.    THUS WE HOLD THAT THE CONSIDERATIONS FOUND IN LAURITZEN V.
LARSEN TO PRECLUDE THE ASSERTION OF A CLAIM UNDER THE JONES ACT APPLY
EQUALLY HERE, AND AFFIRM THE DISMISSAL OF PETITIONER'S CLAIMS AGAINST
COMPANIA TRASATLANTICA. 

               III.  THE CLAIMS AGAINST THE OTHER RESPONDENTS. 

(A)  PETITIONER MADE CLAIMS BASED BOTH ON THE JONES ACT AND THE
GENERAL MARITIME LAW AGAINST GARCIA & DIAZ, INC. AT THE PRE-TRIAL
HEARING THE DISTRICT COURT CONCLUDED THAT GARCIA & DIAZ WAS NOT
ROMERO'S EMPLOYER AND DID NOT OPERATE AND CONTROL THE VESSEL AT THE
TIME OF THE INJURY.  THESE ISSUES WERE PROPERLY ADJUDICATED, AND THUS
THE CLAIMS FOR UNSEAWORTHINESS AND MAINTENANCE AND CURE WERE PROPERLY
DISMISSED.  HOWEVER, THE DISTRICT COURT DID NOT CONSIDER, AND ITS
DISPOSITION OF THE CASE DID NOT REQUIRE IT TO CONSIDER, WHETHER
PETITIONER WAS ASSERTING A CLAIM BASED UPON THE NEGLIGENCE OF GARCIA &
DIAZ; A CLAIM INDEPENDENT OF THE EMPLOYMENT RELATIONSHIP OR OPERATION
AND CONTROL.  THUS IT IS NECESSARY TO REMAND THE CASE FOR FURTHER
PROCEEDINGS AS TO THIS RESPONDENT. 

(B)  THE CLAIMS AGAINST INTERNATIONAL TERMINAL OPERATING CO., AND
QUIN LUMBER CO., FOR A MARITIME TORT, WERE DISMISSED FOR LACK OF
JURISDICTION.  OUR DECISION ON THE JURISDICTIONAL ISSUES NECESSITATES
THE RETURN OF THE CLAIMS AGAINST THESE RESPONDENTS FOR FURTHER
ADJUDICATION. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CAUSE
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  VACATED AND REMANDED. 

FN1  THE CLAIM FOR MAINTENANCE AND CURE UNDER THE GENERAL MARITIME
LAW INCLUDED AN AMOUNT FOR WAGES TO THE END OF THE VOYAGE.  WE HAVE NOT
BEFORE US AN INDEPENDENT CLAIM FOR WAGES DUE AND THEREFORE NEED EXPRESS
NO OPINION ON SUCH A CLAIM BY ONE IN PETITIONER'S POSITION. 

FN2  "THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL
CIVIL ACTIONS WHEREIN THE MATTER IN CONTROVERSY  ...  ARISES UNDER THE
CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES." 

FN3  "(A)  THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF
ALL CIVIL ACTIONS WHERE THE MATTER IN CONTROVERSY  ...  IS BETWEEN: 

     *         *         *         *         * 

"(2)  CITIZENS OF A STATE, AND FOREIGN STATES OR CITIZENS OR SUBJECTS
THEREOF." 

FN4  PRIOR TO THE COMMENCEMENT OF THE TRIAL RESPONDENTS MOVED TO
DISMISS THE COMPLAINT ON THE GROUND THAT THE DISTRICT COURT LACKED
"JURISDICTION" OVER THE SUBJECT MATTER.  THE ANSWERS OF SOME OF THE
RESPONDENTS ALSO CONTAINED MOTIONS TO DISMISS FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED.  A PRE-TRIAL HEARING ON THE
ISSUE OF "JURISDICTION" WAS HELD AND THE COMPLAINT WAS DISMISSED. 
ALTHOUGH THE TRIAL COURT VIEWED THE ISSUES AS JURISDICTIONAL IN THE
CORRECT SENSE, THE PROCEDURE FOLLOWED WAS PRECISELY THAT PROVIDED FOR A
PRELIMINARY HEARING TO DETERMINE WHETHER A CLAIM WAS STATED UPON WHICH
RELIEF CAN BE GRANTED.  FED. RULES CIV. PROC., 12(D).  ALTHOUGH THE
COURT CONSIDERED EVIDENCE OUTSIDE THE PLEADINGS, FEDERAL RULE 12(C)
ALLOWS SUCH EVIDENCE TO BE ADMITTED, REQUIRING THE COURT THEN TO TREAT
THE MOTION AS ONE FOR SUMMARY JDUGMENT UNDER RULE 56.  SUMMARY JUDGMENT
IS PROPER IF "THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT AND
...  THE MOVING PARTY IS ENTITLED TO A JUDGMENT AS A MATTER OF LAW." 
FED. RULES CIV. PROC., 56(C).  THE DETERMINATIONS MADE BY THE DISTRICT
COURT, IN THE COURSE OF ITS HEARING ON JURISDICTION, INSOFAR AS THEY
ARE RELEVANT TO OUR DISPOSITION, WERE WITHIN THE PROPERLY CONCEIVED
SCOPE OF RULE 56.  SINCE ALL THE REQUIREMENTS OF RULE 12(C), RELATING
TO A HEARING ON A MOTION FOR JUDGMENT ON THE PLEADINGS, WERE SATISFIED
AND THE FINDINGS MADE WERE PROPERLY RELEVANT TO SUCH A HEARING, WE NEED
NOT RESTRICT OUR DISPOSITION TO THE ISSUE OF "JURISDICTION" MERELY
BECAUSE THE PROCEEDINGS BELOW WERE INARTISTICALLY LABELED. 

FN5  ACT OF MARCH 3, 1875, SEC. 1, 18 STAT. 470.  THE MODIFICATIONS
OF LANGUAGE TO BE FOUND IN THE PRESENT VERSION OF THIS ACT, 28 U.S.C.
SEC. 1331, WERE NOT INTENDED TO CHANGE IN ANY WAY THE MEANING OR
CONTENT OF THE ACT OF 1875.  SEE REVISER'S NOTE TO 28 U.S.C. SEC.
1331.  THE RECENT AMENDMENTS TO THIS ACT, 72 STAT. 415, AFFECTED ONLY
JURISDICTIONAL AMOUNT AND ARE NOT RELEVANT HERE.  SEE 1958 U.S.C. CONG.
& ADMIN. NEWS 2333, 85TH CONG., 2D SESS. 

FN6  1 STAT. 76. 

FN7  THE PRESENT VERSION OF SEC. 9 IS IN 28 U.S.C. SEC. 1333. 

FN8  SEE 1 FARRAND, RECORDS OF THE FEDERAL CONVENTION (1911), 124; 2
ID., AT 46.  THE "COURT OF APPEALS IN CASES OF CAPTURE" WAS THE FIRST
NATIONAL COURT UNDER THE ARTICLES OF CONFEDERATION.  SEE APPENDIX, 131
U.S. XIX-XXXV.  IN THE FEDERALIST, NO. 80, HAMILTON WROTE:  "THE MOST
BIGOTED IDOLIZERS OF STATE AUTHORITY HAVE NOT THUS FAR SHOWN A
DISPOSITION TO DENY THE NATIONAL JUDICIARY THE COGNIZANCES OF MARITIME
CAUSES.  THESE SO GENERALLY DEPEND ON THE LAWS OF NATIONS, AND SO
COMMONLY AFFECT THE RIGHTS OF FOREIGNERS, THAT THEY FALL WITHIN THE
CONSIDERATIONS WHICH ARE RELATIVE TO THE PUBLIC PEACE.  THE MOST
IMPORTANT PART OF THEM ARE, BY THE PRESENT CONFEDERATION, SUBMITTED TO
FEDERAL JURISDICTION."  THE FEDERALIST, NO. 80 (LODGE ED. 1908), AT 497
498. 

FN9  THE ORIGINAL CLAUSE CALLING FOR THE ESTABLISHMENT OF INFERIOR
TRIBUNALS WAS DEFEATED IN THE CONVENTION.  1 FARRAND, RECORDS OF THE
FEDERAL CONVENTION (1911), 125.  A COMPROMISE VESTING POWER IN CONGRESS
TO ESTABLISH SUCH TRIBUNALS WAS AGREED TO.  IBID.  SEE ALSO ID., AT
124. 

FN10  THUS RUTLEDGE ARGUED AGAINST THE ESTABLISHMENT OF INFERIOR
FEDERAL TRIBUNALS SAYING "THAT THE STATE TRIBUNALS MIGHT AND OUGHT TO
BE LEFT IN ALL CASES TO DECIDE IN THE FIRST INSTANCE THE RIGHT OF
APPEAL TO THE SUPREME NATIONAL TRIBUNAL BEING SUFFICIENT TO SECURE THE
NATIONAL RIGHTS & UNIFORMITY OF JUDGMTS."  1 FARRAND, RECORDS OF THE
FEDERAL CONVENTION (1911), 124.  SEE CLAFLIN V. HOUSEMAN, 93 U.S. 130;
TESTA V. KATT, 330 U.S. 386. 

FN11  MURDOCK V. CITY OF MEMPHIS, 20 WALL.  590. 

FN12  SEE NEW JERSEY STEAM NAVIGATION CO. V. MERCHANTS' BANK OF
BOSTON, 6 HOW.  344, 390; THE HAMILTON, 207 U.S. 398, 404; 2 STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, SEC. 1672.   SEE
ALSO DODD, THE NEW DOCTRINE OF THE SUPREMACY OF ADMIRALTY OVER THE
COMMON LAW, 21 COL. L. REV. 647 (1921); BLACK, ADMIRALTY JURISDICTION:
CRITIQUE AND SUGGESTIONS, 50 COL. L. REV. 259 (1950). 

FN13  ACT OF SEPT. 24, 1789, SEC. 9, 1 STAT. 76. 

FN14  ACT OF MAR. 3, 1875, 18 STAT. 470. 

FN15  THE BELFAST, 7 WALL.  624, 644; LEON V. GALCERAN, 11 WALL. 
185, 188. 

FN16  THE REMOVAL PROVISIONS OF THE ORIGINAL JUDICIARY ACT OF 1789, 1
STAT. 79, CONFERRED A LIMITED REMOVAL JURISDICTION, NOT INCLUDING CASES
OF ADMIRALTY AND MARITIME JURISDICTION.  IN NONE OF THE STATUTES
ENACTED SINCE THAT TIME HAVE SAVING-CLAUSE CASES BEEN MADE REMOVABLE. 

FN17  OF COURSE FEDERAL QUESTION JURISDICTION WAS GRANTED IN THE
ABORTIVE ACT OF FEB. 13, 1801, SEC. 11, 2 STAT. 92, REPEALED BY ACT OF
MARCH 8, 1802, 2 STAT. 132. 

FN18 SEE 2 CONG. REC. 4986-4987; FRANKFURTER AND LANDIS, THE BUSINESS
OF THE SUPREME COURT (1928), 65-69. 

FN19  SEE THE FEDERALIST, NO. 80 (HAMILTON), NOTE 8, SUPRA. 

FN20  SEE TREATISES CITED IN APPENDIX, POST, P. 385.  LACK OF CLARITY
IN MARSHALL'S OPINION WAS SUGGESTED IN DOUCETTE V. VINCENT, 194 F.2D
834, 843-844, N. 8. 

THE CITY OF PANAMA, 101 U.S. 453, DECIDED IN 1879, FOUR YEARS AFTER
THE PASSAGE OF THE ACT OF 1875, DOES NOT COUNTENANCE THE NOTION THAT
CHIEF JUSTICE MARSHALL'S STRICT DIFFERENTIATION BETWEEN THE TWO
PROVISIONS OF SEC. 2 OF ART. III HAD BEEN DISAPPROVED.  THAT CASE ONLY
HELD THAT THE ORGANIC ACT FOR THE TERRITORY OF WASHINGTON GRANTED THE
COURTS OF THAT TERRITORY THE COMBINED JURISDICTION OF THE DISTRICT AND
CIRCUIT COURTS OF THE UNITED STATES, THEREBY INCLUDING, OF COURSE,
ADMIRALTY JURISDICTION.  SEE IN RE COOPER, 143 U.S. 472, 494.  THIS
HOLDING MERELY RECOGNIZED THE SETTLED PRACTICE IN THE TERRITORY OF
WASHINGTON SINCE THE ACT OF 1853, AS WELL AS THE PRACTICE IN OTHER
TERRITORIES WITH SIMILAR ACTS.  THE COURT'S STATEMENT IN THE CITY OF
PANAMA THAT "SELECT PASSAGES OF THE OPINION IN THAT CASE (CANTER), WHEN
DETACHED FROM THE CONTEXT, MAY APPEAR TO SUPPORT THE THEORY OF THE
RESPONDENTS, BUT THE ACTUAL DECISION OF THE COURT IS EXPLICITLY AND
UNDENIABLY THE OTHER WAY" MERELY INDICATED THAT CANTER, LIKE THE CITY
OF PANAMA, INTERPRETED A CONGRESSIONAL STATUTE TO GRANT ADMIRALTY
JURISDICTION TO TERRITORIAL COURTS IN LIGHT OF THE PURPOSES OF A
PARTICULAR STATUTE.  THE CITY OF PANAMA DID NOT REJECT THE PRINCIPLE OF
CONSTITUTIONAL CONSTRUCTION WHICH MARSHALL USED BY WAY OF REACHING HIS
"ACTUAL DECISION."  IT DID NOT QUESTION THE CONCLUSION IN CANTER THAT
THE TWO CLAUSES OF ARTICLE III ARE DISTINCT GRANTS OF JURISDICTION AND
THAT THIS TRUTH IS TO BE OBSERVED WHENEVER IT BECOMES RELEVANT AS IT
DOES HERE.  THE CITY OF PANAMA, LIKE OTHER DECISIONS, SERVES TO
ILLUSTRATE THAT JURISDICTIONAL STATUTES ARE NOT TO BE READ LITERALLY,
AND ARE NOT TO BE CONSTRUED AS ABSTRACT COLLECTIONS OF WORDS, BUT
DERIVE THEIR MEANING FROM THEIR SETTING IN HISTORY AND PRACTICE, WITH
DUE REGARD TO THE CONSEQUENCES OF THE CONSTRUCTION GIVEN THEM.  SEE
AMERICAN SECURITY & TRUST CO. V. COMMISSIONERS OF THE DISTRICT OF
COLUMBIA, 224 U.S. 491; BOSTON SAND & GRAVEL CO. V. UNITED STATES, 278
U.S. 41. 

FN21  E.G., ABBOTT IN HIS TREATISE ON THE UNITED STATES COURTS AND
THEIR PRACTICE (3D ED.  1877), 60, DISCUSSES THE MARSHALL FORMULATION: 

"THE SEVERAL CASES TO WHICH THE JUDICIAL POWER EXTENDS ARE TO BE
REGARDED AS INDEPENDENT, IN THE SENSE THAT ANY ONE CLAUSE IS SUFFICIENT
TO SUSTAIN JURISDICTION IN A CASE TO WHICH IT APPLIES, AND THAT IT IS
NEITHER RESTRAINED NOR ENLARGED BY THE OTHER CLAUSES, WITH THE
EXCEPTION OF THE RESTRAINT IMPOSED BY AMENDMENT XI  ...  ."  THE AUTHOR
THEN DISCUSSES THE CLASSES OF CASES IN ARTICLE III, CONCLUDING "THE
GRANT OF JURISDICTION OVER ONE OF THESE CLASSES DOES NOT CONFER
JURISDICTION OVER EITHER OF THE OTHERS; THE DISCRIMINATION IS
CONCLUSIVE AGAINST THEIR IDENTITY.  A CASE OF ADMIRALTY AND MARITIME
JURISDICTION IS NOT TO BE REGARDED AS ONE 'ARISING UNDER THE
CONSTITUTION AND LAWS OF THE UNITED STATES,' MERELY BECAUSE THE
EXERCISE OF JUDICIAL POWER IN MARITIME CASES IS PROVIDED FOR IN THE
CONSTITUTION AND LAWS."  (CITING AMERICAN INS. CO. V. CANTER.) 

SEE ALSO SPEAR, THE LAW OF THE FEDERAL JUDICIARY (1883), 46. 
DISCUSSING THE ADMIRALTY AND MARITIME JURISDICTION AS GRANTED BY THE
CONSTITUTION, THE AUTHOR SAYS: 

"THE CASES COMING WITHIN THIS JURISDICTION, AS REFERRED TO IN THE
CONSTITUTION, ARE NOT IDENTICAL WITH, OR EMBRACED IN, THE CASES OF LAW
AND EQUITY REFERRED TO IN THE SAME INSTRUMENT, AS ARISING UNDER THE
CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES.  THEY BELONG TO A
DIFFERENT CATEGORY, AND ARE PROVIDED FOR BY A DISTINCT AND SPECIFIC
GRANT OF JUDICIAL POWER."  HE THEN QUOTES FROM MARSHALL'S OPINION IN
CANTER. 

FN22  THE PROVISION OF THE ACT OF 1875 UNDER SCRUTINY ORIGINATED IN
THE SENATE.  THE BILL WAS SPONSORED AND MANAGED BY SENATOR MATTHEW HALE
CARPENTER OF WISCONSIN.  ITS AUTHORSHIP HAS BEEN ATTRIBUTED TO HIM.  7
REPORTS OF THE WISCONSIN STATE BAR ASSOCIATION 155, 186.  ON HIS DEATH
THE BAR JOURNAL OF HIS STATE WROTE THAT "HIS LOVE OF AND DEVOTION TO
LEGAL STUDIES AND PURSUITS - NOT AS OBJECTS BUT AS SUBJECTS - WERE THE
CONTROLLING PASSIONS OF HIS LIFE  ...  . 

"  ...  SUCH, HOWEVER, WAS THE DEVOTION OF MR. CARPENTER TO HIS
PROFESSION THAT HIS ELECTION TO THE UNITED STATES SENATE SEEMED TO BE A
MATTER OF GRATIFICATION PRINCIPALLY FOR THE BROADER FIELD OF
PROFESSIONAL LABORS WHICH IT ENABLED HIM TO CULTIVATE  ...  ."  1
REPORTS OF WISCONSIN STATE BAR ASSOCIATION 227. 

AMONG SENATOR CARPENTER'S COLLABORATORS ON THE SENATE JUDICIARY
COMMITTEE WERE MEN WITH OUTSTANDING PROFESSIONAL EXPERIENCE AS LAWYERS,
PROFESSORS OF LAW AND JUDGES:  GEORGE G. WRIGHT OF IOWA (A PROFESSOR OF
LAW AND A MEMBER OF HIS STATE'S SUPREME COURT), ALLEN G. THURMAN (CHIEF
JUSTICE OF THE OHIO SUPREME COURT), JOHN W. STEVENSON (A PROFESSOR OF
LAW, CODIFIER OF THE LAW OF KENTUCKY, PRESIDENT OF THE AMERICAN BAR
ASSOCIATION), AND FREDERIC T. FRELINGHUYSEN (EMINENT PRACTITIONER,
ATTORNEY GENERAL OF NEW JERSEY, SUBSEQUENTLY SECRETARY OF STATE). 

AFTER LEAVING THE SENATE THE BILL WENT TO CONFERENCE AND WAS REPORTED
OUT ON THE FLOOR OF THE HOUSE BY LUKE POLAND OF VERMONT, AN ESTEEMED
CHIEF JUSTICE OF THE VERMONT SUPREME COURT. 

SUCH MEN WOULD NOT HAVE MADE A REVOLUTIONARY CHANGE IN MARITIME
JURISDICTION SUB SILENTIO. 

FN23  ALL SUITS INVOLVING MARITIME CLAIMS, REGARDLESS OF THE REMEDY
SOUGHT, ARE CASES OF ADMIRALTY AND MARITIME JURISDICTION WITHIN THE
MEANING OF ARTICLE III WHETHER THEY ARE ASSERTED IN THE FEDERAL COURTS
OR, UNDER THE SAVING CLAUSE, IN THE STATE COURTS.  ROMERO'S CLAIMS FOR
DAMAGES UNDER THE GENERAL MARITIME LAW ARE A CASE OF ADMIRALTY AND
MARITIME JURISDICTION.  THE SUBSTANTIVE LAW ON WHICH THESE CLAIMS ARE
BASED DERIVES FROM THE THIRD PROVISION OF ART. III, SEC. 2, CL. 1. 
WITHOUT THAT CONSTITUTIONAL GRANT ROMERO WOULD HAVE NO FEDERAL CLAIM TO
ASSERT.  CF. 2 STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES, SEC. 1672. 

FN24  SEE FRANKFURTER AND LANDIS, THE BUSINESS OF THE SUPREME COURT
(1928), 64-65; CHADBOURN AND LEVIN, ORIGINAL JURISDICTION OF FEDERAL
QUESTIONS, 90 U. OF PA. L. REV. 639, 644-645 (1942). 

FN25  OF COURSE, IN A FEW INSTANCES, CONGRESS HAS PROVIDED THE
FEDERAL ADMIRALTY COURTS WITH A SPECIFIC STATUTORY JURISDICTION.  E.G.,
DEATH ON THE HIGH SEAS ACT, 41 STAT. 537 (1920), 46 U.S.C. SECS. 761
767.    FN26  NORTON V. SWITZER, 93 U.S. 355, 356. 

FN27  SEE APPENDIX, POST, P. 385. 

FN27A  FOR REASONS THAT WOULD TAKE US TOO FAR AFIELD TO DISCUSS, ERIE
R. CO. V. TOMPKINS, 304 U.S. 64, IS NO EXCEPTION. 

FN28  SUCH PROVISIONS ARE IN THE JONES ACT, 41 STAT. 1007 (1920), 46
U.S.C. SEC. 688, AND IN THE GREAT LAKES ACT, 5 STAT. 726 (1845), 28
U.S.C. SEC. 1873.  NEITHER THE SUITS IN ADMIRALTY ACT OF 1920, 41 STAT.
525, 46 U.S.C. SECS. 741-752, NOR THE DEATH ON THE HIGH SEAS ACT, 41
STAT. 537 (1920), 46 U.S.C. SECS. 761-767, ALLOWS A JURY TRIAL IN
PERSONAL INJURY CASES.  WHEN THE DEATH ON THE HIGH SEAS ACT WAS BEING
DEBATED IT WAS STATED THAT "THAT QUESTION WAS THRASHED OUT AND IT WAS
DECIDED BEST NOT TO INCORPORATE INTO THIS BILL A JURY TRIAL BECAUSE OF
THE DIFFICULTIES IN ADMIRALTY PROCEEDINGS."  CONGRESSMAN IGOE, SPEAKING
FOR THE JUDICIARY COMMITTEE, 59 CONG. REC. 4482, 60TH CONG., 2D SESS.
(1920). 

FN29  THE POLICY OF UNREMOVABILITY OF MARITIME CLAIMS BROUGHT IN THE
STATE COURTS WAS INCORPORATED BY CONGRESS INTO THE JONES ACT.  SEE PATE
V. STANDARD DREDGING CORP., 193 F.2D 498 (C.A. 5TH CIR. 1952). 

FN30 28 U.S.C. SEC. 1441(B):  "ANY CIVIL ACTION OF WHICH THE DISTRICT
COURTS HAVE ORIGINAL JURISDICTION FOUNDED ON A CLAIM OR RIGHT ARISING
UNDER THE CONSTITUTION, TREATIES OR LAWS OF THE UNITED STATES SHALL BE
REMOVABLE WITHOUT REGARD TO THE CITIZENSHIP OR RESIDENCE OF THE
PARTIES." 

FN31  SEE THE COMPILATION OF STATE COURT CASES IN SEVENTH 5-YEAR
INDEX-DIGEST OF AMERICAN MARITIME CASES, 1953-1957 (1957), XLIII
XLVIII. 

FN32.  SEE, E.G., MADRUGA V. SUPERIOR COURT OF CALIFORNIA, 346 U.S.
556, 560-561:  "THE JURISDICTIONAL ACT (THE ACT OF 1789) DOES LEAVE
STATE COURTS 'COMPETENT' TO ADJUDICATE MARITIME CAUSES OF ACTION IN
PROCEEDINGS 'IN PERSONAM'  ...  .  THIS COURT HAS SAID THAT A STATE,
'HAVING CONCURRENT JURISDICTION, IS FREE TO ADOPT SUCH REMEDIES, AND TO
ATTACH TO THEM SUCH INCIDENTS, AS IT SEES FIT' SO LONG AS IT DOES NOT
ATTEMPT TO MAKE CHANGES IN THE 'SUBSTANTIVE MARITIME LAW.'  RED CROSS
LINE V. ATLANTIC FRUIT CO., 264 U.S. 109." 

FN33  SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205; GARRETT V. MOORE
MCCORMACK CO., 317 U.S. 239; POPE & TALBOT, INC., V. HAWN, 346 U.S.
406.  SEE MARYLAND CASUALTY CO. V. CUSHING, 347 U.S. 409. 

FN34  VANCOUVER S.S. CO., LTD., V. RICE, 288 U.S. 445; PEYROUX V.
HOWARD, 7 PET. 324.  SEE ALSO EDWARDS V. ELLIOTT, 21 WALL.  532. 

FN35  THE HARRISBURG, 119 U.S. 199.  "DEATH IS A COMPOSER OF STRIFE
BY THE GENERAL LAW OF THE SEA AS IT WAS FOR MANY CENTURIES BY THE
COMMON LAW OF THE LAND."  CARDOZO, J., IN CORTES V. BALTIMORE INSULAR
LINE, INC., 287 U.S. 367, 371. 

FN36  THE HAMILTON, 207 U.S. 398; WESTERN FUEL CO. V. GARCIA, 257
U.S. 233; JUST V. CHAMBERS, 312 U.S. 383. 

FN37  THE HAMILTON, SUPRA; JUST V. CHAMBERS, SUPRA; WESTERN FUEL CO.
V. GARCIA, SUPRA. 

FN38  MADRUGA V. SUPERIOR COURT OF CALIFORNIA, 346 U.S. 556. 

FN39  RED CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109. 

FN40  WILBURN BOAT CO. V. FIREMAN'S FUND INS. CO., 348 U.S. 310. 

FN41  ID., AT 313. 

FN42  "THE GROUNDS OF OBJECTION TO THE ADMIRALTY JURISDICTION IN
ENFORCING LIABILITY FOR WRONGFUL DEATH WERE SIMILAR TO THOSE URGED
HERE; THAT IS, THAT THE CONSTITUTION PRESUPPOSES A BODY OF MARITIME
LAW, THAT THIS LAW, AS A MATTER OF INTERSTATE AND INTERNATIONAL
CONCERN, REQUIRES HARMONY IN ITS ADMINISTRATION AND CANNOT BE SUBJECT
TO DEFEAT OR IMPAIRMENT BY THE DIVERSE LEGISLATION OF THE STATES, AND
HENCE THAT CONGRESS ALONE CAN MAKE ANY NEEDED CHANGES IN THE GENERAL
RULES OF THE MARITIME LAW.  BUT THESE CONTENTIONS PROVED UNAVAILING AND
THE PRINCIPLE WAS MAINTAINED THAT A STATE, IN THE EXERCISE OF ITS
POLICE POWER, MAY ESTABLISH RULES APPLICABLE ON LAND AND WATER WITHIN
ITS LIMITS, EVEN THOUGH THESE RULES INCIDENTALLY AFFECT MARITIME
AFFAIRS, PROVIDED THAT THE STATE ACTION 'DOES NOT CONTRAVENE ANY ACTS
OF CONGRESS, NOR WORK ANY PREJUDICE TO THE CHARACTERISTIC FEATURES OF
THE MARITIME LAW, NOR INTERFERE WITH ITS PROPER HARMONY AND UNIFORMITY
IN ITS INTERNATIONAL AND INTERSTATE RELATIONS.'  IT WAS DECIDED THAT
THE STATE LEGISLATION ENCOUNTERED NONE OF THESE OBJECTIONS.  THE MANY
INSTANCES IN WHICH STATE ACTION HAD CREATED NEW RIGHTS, RECOGNIZED AND
ENFORCED IN ADMIRALTY, WERE SET FORTH IN THE CITY OF NORWALK, AND
REFERENCE WAS ALSO MADE TO THE NUMEROUS LOCAL REGULATIONS UNDER STATE
AUTHORITY CONCERNING THE NAVIGATION OF RIVERS AND HARBORS.  THERE WAS
THE FURTHER PERTINENT OBSERVATION THAT THE MARITIME LAW WAS NOT A
COMPLETE AND PERFECT SYSTEM AND THAT IN ALL MARITIME COUNTRIES THERE IS
A CONSIDERABLE BODY OF MUNICIPAL LAW THAT UNDERLIES THE MARITIME LAW AS
THE BASIS OF ITS ADMINISTRATION.  THESE VIEWS FIND ABUNDANT SUPPORT IN
THE HISTORY OF THE MARITIME LAW AND IN THE DECISIONS OF THIS COURT." 
JUST V. CHAMBERS, 312 U.S. 383, 389-390. 

"IT IS A BROAD RECOGNITION OF THE AUTHORITY OF THE STATES TO CREATE
RIGHTS AND LIABILITIES WITH RESPECT TO CONDUCT WITHIN THEIR BORDERS,
WHEN THE STATE ACTION DOES NOT RUN COUNTER TO FEDERAL LAWS OR THE
ESSENTIAL FEATURES OF AN EXCLUSIVE FEDERAL JURISDICTION."  ID., AT
391. 

THUS CONGRESS WAS CAREFUL TO MAKE THE DEATH ON THE HIGH SEAS ACT
APPLICABLE ONLY OUTSIDE STATE TERRITORIAL WATERS SO AS NOT TO INTRUDE
ON STATE LEGISLATIVE COMPETENCE.  59 CONG.  REC. 4482-4486. 

FN43  SEE, E.G., CALDAROLA V. ECKERT, 332 U.S. 155. 

FN44  ILLUSTRATIVE OF THIS PROCESS IS THE RECENT CASE OF ALLEN V.
MATSON NAVIGATION CO., 255 F.2D 273 (C.A. 9TH CIR. 1958).  THE COURT
REMARKED THAT "IN DISCUSSING THE QUESTION OF THE DUTY WHICH THE
DEFENDANT OWED TO ITS PASSENGERS, ALL OF THE PARTIES AGREED THAT THE
LAW OF CALIFORNIA IS TO BE APPLIED.  THE TRIAL COURT MADE A LIKE
ASSUMPTION.  WE FIND IT UNNECESSARY TO INDICATE ANY VIEW AS TO WHETHER
IN THIS THE PARTIES WERE CORRECT FOR AS WE SEE IT, NO MATTER WHICH LAW
APPLIES, THE RULE IS THE SAME, WHETHER THAT OF CALIFORNIA, OR THAT OF
THE MARITIME LAW."  ID., AT 277. 

FN45  28 U.S.C. SEC. 1391(A). 

FN46  28 U.S.C. SEC. 1391(B). 

FN47  MACON GROCERY CO. V. ATLANTIC COAST LINE R. CO., 215 U.S. 501. 
THE MORE RESTRICTIVE PROVISIONS APPLY IN ANY ACTION "WHEREIN
JURISDICTION IS NOT FOUNDED SOLELY ON DIVERSITY OF CITIZENSHIP  ...
."  28 U.S.C. SEC. 1391(B). 

THERE MAY ALSO WELL BE SITUATIONS IN WHICH THE VENUE PROVISIONS
PREVENT THE JOINDER OF DEFENDANTS IN A FEDERAL DISTRICT COURT AND THE
STATE COURT RULES OF PROCEDURE DO NOT ALLOW THEIR JOINDER, THUS
PRECLUDING SUIT ALTOGETHER. 

FN48  JENKINS V. RODERICK, 156 F. SUPP. 299, 301 (U.S.D.C. MASS.
1957). 

FN49  IN THE LOTTAWANNA, THE COURT CLEARLY RECOGNIZED THAT MARITIME
LAW WAS A BODY OF UNIFORM FEDERAL LAW DRAWING ITS AUTHORITY FROM THE
CONSTITUTION AND LAWS OF THE UNITED STATES. 

FN50  115 U.S. 1.  CONGRESS, WITH AN EXCEPTION HAVING ITS OWN
JUSTIFICATION, HAS WIPED OUT THIS UNFORTUNATE DECISION.  ACT OF
FEBRUARY 13, 1925, SEC. 12, 43 STAT. 941, NOW 28 U.S.C. SEC. 1349. 

FN51  OF COURSE THE MANY LIMITATIONS WHICH HAVE BEEN PLACED ON
JURISDICTION UNDER SEC. 1331 ARE NOT LIMITATIONS ON THE CONSTITUTIONAL
POWER OF CONGRESS TO CONFER JURISDICTION ON THE FEDERAL COURTS.  SEE
SHOSHONE MINING CO. V. RUTTER, 177 U.S. 505; LOUISVILLE & NASHVILLE R.
CO. V. MOTTLEY, 211 U.S. 149; GULLY V. FIRST NATIONAL BANK, 299 U.S.
109; SKELLY OIL CO. V. PHILLIPS PETROLEUM CO., 339 U.S. 667; SEE
MISHKIN, THE FEDERAL "QUESTION" IN THE DISTRICT COURTS, 53 COL. L. REV.
157, 160-163 (1953). 

FN52  HEALY V. RATTA, 292 U.S. 263, 270. 

FN53  THE DISTRICT COURT ADJUDICATED ONLY THE JONES ACT CLAIM ON THE
MERITS, DISMISSING FOR LACK OF JURISDICTION THE CLAIMS UNDER THE
GENERAL MARITIME LAW.  HOWEVER, SINCE THE CONSIDERATIONS ARE IDENTICAL,
WE HERE DISPOSE OF ALL THE CLAIMS AGAINST COMPANIA TRASATLANTICA. 

FN54  SEE WILDENHUS'S CASE, 120 U.S. 1. 

FN55  142 F. SUPP. 570, 573-574. 

                APPENDIX TO OPINION OF THE COURT. 

THE FOLLOWING IS THE LIST OF TREATISES ON FEDERAL PROCEDURE AND
JURISDICTION AND ADMIRALTY LAW WHICH WERE EXAMINED TO DETERMINE IF ANY
COMMENTATOR GAVE ANY INTIMATION THAT THE ACT OF 1875 HAD SWEPT
ADMIRALTY JURISDICTION WITHIN ITS SCOPE.  NO SUCH INTIMATION IS FOUND
IN A SINGLE TREATISE.  ON THE CONTRARY, ALL THOSE WHICH DEALT WITH THE
SUBJECT SPECIFICALLY ASSUMED THAT THE FEDERAL COURTS ON THE LAW SIDE
HAD JURISDICTION OVER A MARITIME CAUSE AFTER THE ACT OF 1875 AS BEFORE
ONLY WHEN THE PARTIES WERE OF DIVERSE CITIZENSHIP. 

BOYCE, MANUAL OF THE PRACTICE IN THE CIRCUIT COURTS (1869). 

ABBOTT, THE UNITED STATES COURTS AND THEIR PRACTICE (1877). 

PHILLIPS, STATUTORY JURISDICTION AND PRACTICE OF THE SUPREME COURT OF
THE UNITED STATES (1878). 

DESTY, MANUAL OF THE LAW RELATING TO SHIPPING AND ADMIRALTY (1879). 

CURTIS, JURISDICTION, PRACTICE AND PECULIAR JURISPRUDENCE OF THE
COURTS IN THE UNITED STATES (1880). 

BUMP, FEDERAL PROCEDURE (1881). 

MILLER AND FIELD, FEDERAL PRACTICE (1881). 

COHEN, ADMIRALTY - JURISDICTION, LAW AND PRACTICE (1883). 

FIELD, CONSTITUTION AND JURISDICTION OF THE COURTS OF THE UNITED
STATES (1883). 

SPEAR, LAW OF THE FEDERAL JUDICIARY (1883). 

THATCHER (THATCHER'S PRACTICE) - A DIGEST OF STATUTES, EQUITY RULES
AND DECISIONS UPON THE JURISDICTION, PLEADINGS AND PRACTICE OF THE
CIRCUIT COURTS OF THE UNITED STATES (1883). 

THATCHER (THATCHER'S PRACTICE) - A DIGEST OF STATUTES, ADMIRALTY
RULES AND DECISIONS UPON THE JURISDICTION, PLEADINGS AND PRACTICE OF
THE DISTRICT COURTS OF THE UNITED STATES (1884). 

HENRY, JURISDICTION AND PROCEDURE OF THE ADMIRALTY COURTS (1885). 

HOLT, THE CONCURRENT JURISDICTION OF THE FEDERAL AND STATE COURTS
(1888). 

CURTIS, JURISDICTION, PRACTICE AND PECULIAR JURISPRUDENCE OF THE
COURTS OF THE UNITED STATES (REV. ED. 1896). 

BENEDICT, THE AMERICAN ADMIRALTY (3D ED. 1898). 

GARLAND AND RALSTON, CONSTITUTION AND JURISDICTION OF THE U.S. COURTS
(1898). 

SIMONTON, CHARLES H. (U.S. CIRCUIT JUDGE), THE FEDERAL COURTS, THEIR
ORGANIZATION, JURISDICTION AND PROCEDURE (2D ED. 1898). 

CARTER, THE JURISDICTION OF FEDERAL COURTS AS LIMITED BY THE
CITIZENSHIP AND RESIDENCE OF THE PARTIES (1899). 

DESTY, MANUAL OF PRACTICE IN THE COURTS OF THE UNITED STATES (9TH ED.
1899). 

MAY, PRACTICE AND PROCEDURE OF THE U.S. SUPREME COURT (1899). 

DWYER, THE LAW AND PROCEDURE OF UNITED STATES COURTS (1901). 

HUGHES, HANDBOOK OF ADMIRALTY LAW (1901). 

TAYLOR, JURISDICTION AND PROCEDURE OF THE SUPREME COURT OF THE U.S.
(1905). 

ROSE, CODE OF FEDERAL PROCEDURE (1907). 

BATES, FEDERAL PROCEDURE AT LAW (1908). 

ENCYCLOPEDIA OF UNITED STATES SUPREME COURT REPORTS (1908). 

BENEDICT, THE AMERICAN ADMIRALTY (4TH ED. 1910). 

LOVELAND, APPELLATE JURISDICTION OF THE FEDERAL COURTS (1911). 

HUGHES, HANDBOOK OF JURISDICTION AND PROCEDURE IN UNITED STATES
COURTS (2D ED. 1913). 

BUNN, JURISDICTION AND PRACTICE OF THE COURTS OF THE UNITED STATES
(1914)(ALSO 3D ED. 1927; 4TH ED. 1939; 5TH ED. 1949). 

THAYER, JURISDICTION OF THE FEDERAL COURTS (1914). 

CHAPLIN, PRINCIPLES OF THE FEDERAL LAW (1917). 

LONG, OUTLINE OF THE JURISDICTION AND PROCEDURE OF THE FEDERAL COURTS
(3D ED. 1917). 

FOSTER, FEDERAL PRACTICE (6TH ED. 1920). 

HUGHES, HANDBOOK OF ADMIRALTY LAW (2D ED. 1920). 

LOVELAND, ANNOTATED FORMS OF FEDERAL PROCEDURE (3D ED. 1922). 

ROSE, JURISDICTION AND PROCEDURE OF THE FEDERAL COURTS (2D ED.
1922). 

MONTGOMERY, MANUAL OF FEDERAL JURISDICTION AND PROCEDURE (3D ED.
1927). 

WILLIAMS, FEDERAL PRACTICE (2D ED. 1927). 

DOBIE, HANDBOOK OF FEDERAL JURISDICTION AND PROCEDURE (1928). 

LONGSDORF, CYCLOPEDIA OF FEDERAL PROCEDURE (1928). 

ZOLINE, FEDERAL APPELLATE JURISDICTION AND PROCEDURE (3D ED. 1928). 

HUGHES, FEDERAL PRACTICE, JURISDICTION AND PROCEDURE (1931). 

ROSE, JURISDICTION AND PROCEDURE OF THE FEDERAL COURTS (4TH ED.
1931). 

BROWNE, FEDERAL APPELLATE PRACTICE AND PROCEDURE (1932). 

BROWNE, GUIDE TO FEDERAL AND BANKRUPTCY PRACTICE (1933). 

HOPKINS, FEDERAL JUDICIAL CODE AND THE JUDICIARY (4TH ED. 1934). 

MARKER, FEDERAL APPELLATE JURISDICTION AND PROCEDURE (1935). 

ROSE, JURISDICTION AND PROCEDURE OF THE FEDERAL COURTS (5TH ED.
1938). 

SIMKINS, FEDERAL PRACTICE (3D ED. 1938)(ALSO 1942 SUPPLEMENT). 

ROBINSON, HANDBOOK OF ADMIRALTY LAW IN THE UNITED STATES (1939). 

BENEDICT, LAW OF AMERICAN ADMIRALTY (KNAUTH ED. 1940). 

POUND, ORGANIZATION OF COURTS (1940). 

KIRSHBAUM, OUTLINE OF FEDERAL PRACTICE AND PROCEDURE (1941). 

O'BRIEN, MANUAL OF FEDERAL APPELLATE PROCEDURE (3D ED. 1941). 

MONTGOMERY, MANUAL OF FEDERAL JURISDICTION AND PROCEDURE (4TH ED.
1942). 

FEDERAL REDBOOK AND PRACTICE ANNUAL (SCHWEITZER ED. 2D ED. 1943). 

BENDER, FEDERAL PRACTICE MANUAL (1948). 

SUNDERLAND, JUDICIAL ADMINISTRATION (1948). 

GUANDOLO, FEDERAL PROCEDURE FORMS (1949). 

MOORE, A COMMENTARY ON THE JUDICIAL CODE (1949). 

WENDELL, RELATIONS BETWEEN THE FEDERAL AND STATE COURTS (1949). 

BARRON AND HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE (1950). 

FINS, FEDERAL PRACTICE GUIDE (1950).    OHLINGER, FEDERAL PRACTICE
(REV. ED. 1950), REPLACEMENT VOL. ONE-A. 

MR. JUSTICE BLACK, DISSENTING. 

ALTHOUGH THIS CASE HAS AROUSED MUCH DISCUSSION ABOUT THE SCOPE OF
JURISDICTION UNDER 28 U.S.C. SEC. 1331, I CANNOT FEEL THAT THE ISSUE IS
EITHER COMPLEX OR EARTH-SHAKING.  THE REAL CORE OF THE JURISDICTIONAL
CONTROVERSY IS WHETHER A FEW MORE SEAMEN CAN HAVE THEIR SUITS FOR
DAMAGES PASSED ON BY FEDERAL JURIES INSTEAD OF JUDGES.  FOR THE REASONS
STATED BY MR. JUSTICE BRENNAN HERE AND BY JUDGE MAGRUDER IN DOUCETTE V.
VINCENT, 194 F.2D 834, 839, I BELIEVE THAT FEDERAL JURISDICTION UNDER
28 U.S.C. SEC. 1331 LIES AND A FEDERAL JURY TRIAL IS PROPER.  IN
PARTICULAR I FEEL THAT TECHNICAL OR ESOTERIC READINGS SHOULD NOT BE
GIVEN TO CONGRESSIONAL LANGUAGE WHICH IS PERFECTLY UNDERSTANDABLE IN
ORDINARY ENGLISH. 

MUCH THE SAME REASON LEADS ME ALSO TO DISSENT FROM PART II OF THE
COURT'S OPINION.  BY ITS TERMS THE JONES ACT APPLIES TO "ANY SEAMAN WHO
SHAL SUFFER PERSONAL INJURY IN THE COURSE OF HIS EMPLOYMENT."  41 STAT.
1007, 46 U.S.C. SEC. 688.  THIS COURT IN LAURITZEN V. LARSEN, 345 U.S.
571, HELD THAT THE WORDS "ANY SEAMAN" DID NOT INCLUDE FOREIGN SEAMEN
SAILING FOREIGN SHIPS AND INJURED IN FOREIGN WATERS.  I DISSENTED FROM
THAT HOLDING.  IT WAS BASED, I THOUGHT, ON THE COURT'S CONCEPTS OF WHAT
WOULD BE GOOD OR BAD FOR THE COUNTRY INTERNATIONALLY RATHER THAN ON AN
ACTUAL INTERPRETATION OF THE LANGUAGE OF THE JONES ACT.  THUS, IT
SEEMED TO ME THAT THE LAURITZEN HOLDING RESTED ON NOTIONS OF WHAT
CONGRESS SHOULD HAVE SAID, NOT ON WHAT IT DID SAY.  SUCH NOTIONS, WEAK
ENOUGH IN LAURITZEN, SEEM MUCH WEAKER STILL IN THIS CASE WHERE THE TORT
INVOLVED OCCURRED IN OUR OWN WATERS.  I CANNOT BUT FEEL THAT, AT LEAST
AS TO TORTS OCCURRING WITHIN THE UNITED STATES, CONGRESS KNEW WHAT IT
WAS DOING WHEN IT SAID "ANY SEAMAN" AND I MUST DISSENT FROM TODAY'S
FURTHER AND, I BELIEVE, UNJUSTIFIABLE REDUCTION IN THE SCOPE OF THE
JONES ACT.  MOREOVER SINCE THE TORT OCCURRED IN THE NAVIGABLE WATERS OF
THE UNITED STATES, I THINK THE COMPLAINT AGAINST COMPANIA TRASATLANTICA
STATED A GOOD CAUSE OF ACTION UNDER GENERAL MARITIME LAW WHETHER
JURISDICTION OF THE CAUSE IS BASED, AS I BELIEVE, ON 28 U.S.C. SEC.
1331, OR, AS THE COURT ASSUMES, ON SOME THEORY OF "PENDENT
JURISDICTION." 

MR. JUSTICE DOUGLAS JOINS IN THE FIRST PARAGRAPH OF THIS OPINION.  HE
BELIEVES THAT LAURITZEN V. LARSEN, 345 U.S. 571, IS INAPPOSITE TO THE
PRESENT CASE, BECAUSE OF THE NUMEROUS INCIDENTS CONNECTING THIS
TRANSACTION WITH THE UNITED STATES.  HE THEREFORE AGREES WITH MR.
JUSTICE BLACK THAT THE DISTRICT COURT SHOULD TAKE JURISDICTION OVER
PETITIONER'S CLAIM AGAINST COMPANIA TRASATLANTICA. 

MR. JUSTICE BRENNAN, DISSENTING IN PART AND CONCURRING IN PART. 

                         I. 

I REGRET THAT I CANNOT AGREE WITH THE COURT'S HOLDING THAT SEC. 1331
OF THE JUDICIAL CODE DOES NOT GIVE JURISDICTION TO A FEDERAL DISTRICT
COURT, SITTING AT LAW, OVER A SEAMAN'S CLAIMS AGAINST HIS EMPLOYER FOR
MAINTENANCE AND CURE AND FOR INDEMNITY DAMAGES FOR INJURY CAUSED BY
UNSEAWORTHINESS, WHERE THE CLAIMS ARE ASSERTED IN THE MANNER OF A SUIT
AT COMMON LAW AND THE REQUISITE JURISDICTIONAL AMOUNT IS IN
CONTROVERSY.  I BELIEVE THAT THE JURISDICTIONAL STATUTE AND THE LOGIC
OF THE PRINCIPLES OF THIS COURT'S DECISIONS CONSTRUING IT COMPEL A
CONTRARY RESULT.  I THINK THE COURT'S OPINION ATTEMPTS TO TURN ASIDE
THE STATUTORY LANGUAGE AND THE THRUST OF THIS COURT'S DECISIONS WITH
REASONING THAT IS ALTOGETHER TOO INSUBSTANTIAL. 

THE POINT ON WHICH THE COURT AND I ARE AT ISSUE IS ONE WHICH HAS BEEN
MUCH MOOTED IN THE COURTS OF APPEALS, AND I AGREE THAT IT IS
APPROPRIATE THAT A THOROUGH EXPRESSION OF VIEWS ON IT BE PRESENTED.  I
PROPOSE FIRST TO EXPLAIN WHY JURISDICTION SHOULD BE SUSTAINED UNDER
SEC.  1331, AND THEN TO OFFER SOME REPLY TO SPECIFIC ARGUMENTS SET
FORTH BY THE COURT WHICH APPARENTLY PROCEED FROM SUPPOSED PRACTICAL
INCONVENIENCES THAT ARE THOUGHT TO ARISE FROM SUSTAINING THE
JURISDICTION. 

THE PETITIONER BROUGHT THIS SUIT IN A FEDERAL DISTRICT COURT.  THE
ELEMENT IN HIS ACTION WITH WHICH I AM DEALING IS HIS CLAIM FOR MONEY
DAMAGES FROM COMPANIA TRASATLANTICA, HIS EMPLOYER, FOR BREACH OF THE
SHIPOWNER'S DUTY TO MAINTAIN A SEAWORTHY SHIP AND FOR MAINTENANCE AND
CURE.  SINCE THERE WAS NO DIVERSITY OF CITIZENSHIP BETWEEN PETITIONER
AND COMPANIA TRASATLANTICA, (FN1) JURISDICTION WAS PREDICATED ON THE
GRANT IN 28 U.S.C. SEC. 1331 OF JURISDICTION IN "CIVIL ACTIONS WHEREIN
THE MATTER IN CONTROVERSY  ...  ARISES UNDER THE CONSTITUTION, LAWS OR
TREATIES OF THE UNITED STATES."  (FN2)  JURISDICTION OF SUCH CLAIMS
COULD HAVE BEEN ESTABLISHED ON THE ADMIRALTY SIDE OF THE DISTRICT COURT
SINCE 28 U.S.C. SEC. 1333 SPECIFICALLY GRANTS JURISDICTION IN THE
DISTRICT COURTS IN "CASES OF ADMIRALTY OR MARITIME JURISDICTION."  THE
QUESTION IS WHETHER PETITIONER CAN BRING THIS PART OF HIS ACTION ON THE
LAW SIDE OF A FEDERAL DISTRICT COURT. 

FIRST.  IN A LONG SERIES OF DECISIONS TRACING FROM SOUTHERN PACIFIC
CO. V. JENSEN, 244 U.S. 205, THIS COURT HAS MADE IT CLEAR THAT, IN A
SEAMAN'S ACTION TO RECOVER DAMAGES FOR A MARITIME TORT FROM HIS
EMPLOYER, THE SUBSTANTIVE LAW TO BE APPLIED IS FEDERAL MARITIME LAW
MADE APPLICABLE AS PART OF THE LAWS OF THE UNITED STATES BY THE
CONSTITUTION ITSELF, AND THAT THE RIGHT OF RECOVERY, IF ANY, IS A
FEDERALLY CREATED RIGHT.  (FN3)  CHELENTIS V. LUCKENBACH S.S. CO., 247
U.S. 372; KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149; GARRETT V.
MOORE-MCCORMACK CO., 317 U.S. 239; POPE & TALBOT, INC., V. HAWN, 346
U.S. 406.  CF. RED CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109, 124
125. 

IT IS TRUE THAT EARLY IN OUR HISTORY MARITIME LAW WAS THOUGHT TO BE
AN INTERNATIONAL LAW MERCHANT WHICH WAS IMPARTIALLY ADMINISTERED BY THE
SEVERAL MARITIME NATIONS OF THE WORLD.  THIS CONCEPT WAS EXPRESSED BY
CHIEF JUSTICE MARSHALL'S LANGUAGE IN AMERICAN INS.  CO. V. CANTER, 1
PET. 511, 545-546:  "A CASE IN ADMIRALTY DOES NOT, IN FACT, ARISE UNDER
THE CONSTITUTION OR LAWS OF THE UNITED STATES.  THESE CASES ARE AS OLD
AS NAVIGATION ITSELF; AND THE LAW, ADMIRALTY AND MARITIME, AS IT HAS
EXISTED FOR AGES, IS APPLIED BY OUR COURTS TO THE CASES AS THEY
ARISE."  BUT THAT THIS DID NOT MEAN THAT THERE WAS SOME SUPRANATIONAL
LAW, BY WHICH AMERICAN COURTS WERE BOUND, WAS MADE CLEAR BY MR. JUSTICE
BRADLEY IN THE LOTTAWANNA, 21 WALL.  558, 572, WHERE HE SAID FOR THE
COURT:  "IT IS HARDLY NECESSARY TO ARGUE THAT THE MARITIME LAW IS ONLY
SO FAR OPERATIVE AS LAW IN ANY COUNTRY AS IT IS ADOPTED BY THE LAWS AND
USAGES OF THAT COUNTRY  ...  ."  THIS TEACHING WAS EMPHASIZED IN THE
WESTERN MAID, 257 U.S. 419, 432, WHERE MR. JUSTICE HOLMES, SPEAKING FOR
THE COURT, SAID:  "WE MUST REALIZE THAT HOWEVER ANCIENT MAY BE THE
TRADITIONS OF MARITIME LAW, HOWEVER DIVERSE THE SOURCES FROM WHICH IT
HAS BEEN DRAWN, IT DERIVES ITS WHOLE AND ONLY POWER IN THIS COUNTRY
FROM ITS HAVING BEEN ACCEPTED AND ADOPTED BY THE UNITED STATES.  THERE
IS NO MYSTIC OVERLAW TO WHICH EVEN THE UNITED STATES MUST BOW." 

THE SOVEREIGN POWER WHICH DETERMINES THE RULES OF SUBSTANTIVE LAW
GOVERNING MARITIME CLAIMS OF THE SORT WHICH PETITIONER ASSERTS HERE IS
FEDERAL POWER, SPEAKING THROUGH CONGRESS AS IN THE CASE OF THE JONES
ACT, OR THROUGH THIS COURT IN THE CASE OF JUDICIALLY DEFINED CAUSES OF
ACTION.  SOUTHERN PACIFIC CO. V. JENSEN, SUPRA.  THIS IS AN AREA WHERE
THE FEDERAL COURTS HAVE DEFINED SUBSTANTIVE RULES THEMSELVES, AND HAVE
NOT APPLIED STATE LAW.  INDEED, IT IS FEDERAL SUBSTANTIVE LAW SO
CREATED WHICH THE STATES MUST ENFORCE IN SUCH ACTIONS BROUGHT IN STATE
COURTS, GARRETT V. MOORE-MCCORMACK CO., SUPRA, AND WHICH THE FEDERAL
COURTS HAVE APPLIED IN ACTIONS AT LAW IN WHICH DIVERSITY OF CITIZENSHIP
HAS BEEN RELIED UPON AS A JURISDICTIONAL BASIS, POPE & TALBOT, INC., V.
HAWN, SUPRA. THE CAUSES OF ACTION ASSERTED AGAINST HIS EMPLOYER BY
PETITIONER HERE PRESENT "NO CLAIM CREATED BY OR ARISING OUT OF STATE
LAW.  HIS RIGHT OF RECOVERY  ...  IS ROOTED IN FEDERAL MARITIME LAW." 
ID., AT 409. 

SECOND.  SINCE PETITIONER'S CAUSES OF ACTION FOR UNSEAWORTHINESS AND
FOR MAINTENANCE AND CURE ARE CREATED BY FEDERAL LAW, HIS CASE ARISES
UNDER "THE LAWS  ...  OF THE UNITED STATES" WITHIN THE MEANING OF SEC.
1331, FOR IT IS CLEAR THAT "A SUIT ARISES UNDER THE LAW THAT CREATES
THE CAUSE OF ACTION."  HOLMES, J., IN AMERICAN WELL WORKS CO. V. LAYNE
& BOWLER CO., 241 U.S. 257, 260.  (FN4) THE CONTENTION CANNOT BE
ACCEPTED THAT SINCE PETITIONER'S RIGHTS ARE JUDICIALLY DEFINED, THE
OSCEOLA, 189 U.S. 158, THEY ARE NOT CREATED BY "THE LAWS  ...  OF THE
UNITED STATES" WITHIN THE MEANING OF SEC. 1331; OR, IN OTHER WORDS,
THAT ONLY MARITIME RIGHTS CREATED BY ACT OF CONGRESS ARE CREATED BY
"THE LAWS  ...  OF THE UNITED STATES."  IN ANOTHER CONTEXT, THAT OF
STATE LAW, THIS COURT HAS RECOGNIZED THAT THE STATUTORY WORD "LAWS"
INCLUDES COURT DECISIONS.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64.  THE
CONVERSE SITUATION IS PRESENTED HERE IN THAT FEDERAL COURTS HAVE AN
EXTENSIVE RESPONSIBILITY OF FASHIONING RULES OF SUBSTANTIVE LAW IN
MARITIME CASES.  SEE WILBURN BOAT CO. V. FIREMAN'S FUND INS. CO., 348
U.S. 310, 314.  THESE RULES ARE AS FULLY "LAWS" OF THE UNITED STATES AS
IF THEY HAD BEEN ENACTED BY CONGRESS.  CF. GARRETT V. MOORE-MCCORMACK
CO., SUPRA; WARREN V. UNITED STATES, 340 U.S. 523, 526-528; AND SEE
MATER V. HOLLEY, 200 F.2D 123.  (FN5) 

THIRD.  NOTWITHSTANDING THESE CONCLUSIONS, JURISDICTION UNDER SEC.
1331 WOULD, OF COURSE, NOT LIE IF IT WERE BEYOND THE CONSTITUTIONAL
POWER OF CONGRESS TO VEST JURISDICTION OVER THIS ACTION OF A SEAMAN
AGAINST HIS EMPLOYER, A MATTER FALLING ADMITTEDLY WITHIN THE "ADMIRALTY
OR MARITIME JURISDICTION," IN A FEDERAL COURT SITTING AT LAW.  BUT IT
IS TOO LATE TO MAKE SUCH AN ARGUMENT.  THE JURISDICTIONAL TREATMENT OF
THE RIGHTS OF SEAMEN UNDER THE JONES ACT, A CAUSE OF ACTION BOUND UP
WITH THE CAUSE OF ACTION IN QUESTION HERE, IS PRECLUSIVE ON THE ISSUE. 
THE JONES ACT WAS HELD IN PANAMA R. CO. V. JOHNSON, 264 U.S. 375, TO BE
AUTHORIZED BY THE LEGISLATIVE POWER RESIDING IN THE ADMIRALTY CLAUSE OF
ARTICLE III.  THE RIGHT OF ACTION GRANTED WAS, HOWEVER, SPECIFICALLY
STATED BY CONGRESS TO BE EXERCISABLE "AT LAW, WITH THE RIGHT OF TRIAL
BY JURY" AND IN THE FEDERAL DISTRICT COURTS.  THIS TREATMENT WAS
UPHELD, AGAINST CONSTITUTIONAL CHALLENGE, BY THE COURT, WHICH HELD THAT
JURISDICTION PROPERLY LAY, AT THE OPTION OF THE PLAINTIFF, EITHER IN
ADMIRALTY OR ON THE LAW SIDE OF THE DISTRICT COURT.  "THE
CONSTITUTIONAL PROVISION INTERPOSES NO OBSTACLE TO PERMITTING RIGHTS
FOUNDED ON THE MARITIME LAW OR AN ADMISSIBLE MODIFICATION OF IT TO BE
ENFORCED AS SUCH THROUGH APPROPRIATE ACTIONS ON THE COMMON-LAW SIDE OF
THE COURTS  ...  ."  ID., AT 388.  AND THE UNCHALLENGED MAINTENANCE OF
THE VERY CAUSE OF ACTION IN QUESTION HERE AT LAW IN THE DISTRICT COURTS
UNDER 28 U.S.C. SEC. 1332, WHERE DIVERSITY OF CITIZENSHIP IS PRESENT,
IS FURTHER PROOF THAT NO CONSTITUTIONAL INHIBITION TO THE MAINTENANCE
OF SUCH AN ACTION AT LAW UNDER SEC. 1331 EXISTS.  CF. THE BELFAST, 7
WALL.  624-644. 

BUT DESPITE THE CONSTITUTIONAL POWER OF CONGRESS, JURISDICTION UNDER
SEC. 1331 MAY STILL BE DEFEATED IF THAT POWER HAS NOT THERE BEEN
EXERICSED; IN OTHER WORDS, IF THAT JURISDICTIONAL GRANT IS TO BE READ
AS CONTAINING AN IMPLIED EXCEPTION AS TO CASES FALLING WITHIN THE
"ADMIRALTY OR MARITIME JURISDICTION."  SEE PADUANO V. YAMASHITA KISEN
KABUSHIKI KAISHA, 221 F.2D 615; JENKINS V. RODERICK, 156 F. SUPP. 299,
302.  THIS I TAKE TO BE THE NET EFFECT OF THE COURT'S REASONING.  THE
GIST OF THE ARGUMENT, AS IT HAS BEEN DEVELOPED IN THE COURTS OF
APPEALS, IS THAT SEC. 1331 WAS ENACTED "TO INSURE THE AVAILABILITY OF A
FORUM DESIGNED TO MINIMIZE THE DANGER OF HOSTILITY TOWARD, AND
SPECIALLY SUITED TO THE VINDICATION OF, FEDERALLY CREATED RIGHTS  ...
."  PADUANO V. YAMASHITA KISEN KABUSHIKI KAISHA, SUPRA, AT 618. 
CONTINUOUSLY SINCE 1789 CONGRESS HAS PROVIDED SPECIALLY FOR ADMIRALTY
COURTS IN WHICH RIGHTS UNDER THE FEDERAL MARITIME LAW COULD BE
ASSERTED.  THE ARGUMENT RUNS THAT IT FOLLOWS THAT CLAIMS UNDER THE
MARITIME LAW WERE NOT INTENDED TO FALL WITHIN THE SCOPE OF SEC. 1331. 
AND HERE, THE COURT'S CONCLUSION RESTS PRIMARILY ON AN ANALYSIS OF THE
TERMS AND BACKGROUND OF THE 1875 ACT WHICH WAS THE ANCESTOR OF SEC.
1331, AND ON VARIOUS INFERENCES DRAWN FROM SILENCE AFTER THAT ACT'S
PASSAGE. 

THE MEMBERS OF THE FIRST CONGRESS, IN AGREEMENT THAT NATIONAL COURTS
OF ADMIRALTY WERE AN IMPERATIVE NECESSITY OF THE TIMES, 1 ANNALS OF
CONG. 797-798 (1789), GAVE TO THE DISTRICT COURTS IN SEC. 9 OF THE
FIRST JUDICIARY ACT ORIGINAL JURISDICTION OVER "ALL CIVIL CAUSES OF
ADMIRALTY AND MARITIME JURISDICTION  ...  ."  1 STAT. 76, 77.  UNDER
SEC. 21 THE CIRCUIT COURTS WERE GIVEN APPELLATE JURISDICTION "IN CAUSES
OF ADMIRALTY AND MARITIME JURISDICTION  ...  ."  1 STAT. 83.  THESE
PHRASES FOLLOWED ALMOST LITERALLY THE WORDING OF ART. III, SEC. 2, OF
THE CONSTITUTION, EXTENDING THE FEDERAL JUDICIAL POWER "TO ALL CASES OF
ADMIRALTY AND MARITIME JURISDICTION  ...  ."  SIGNIFICANTLY, THE FIRST
JUDICIARY ACT GRANTED TO THE DISTRICT AND CIRCUIT COURTS NO GENERAL
FEDERAL-QUESTION JURISDICTION. 

...  SAVING TO SUITORS, IN ALL CASES, THE RIGHT OF A COMMON LAW
REMEDY, WHERE THE COMMON LAW IS COMPETENT TO GIVE IT  ...  ."  THE
SAVING CLAUSE SURVIVES IN 28 U.S.C. SEC. 1333, PHRASED "  ...  SAVING
TO SUITORS IN ALL CASES ALL OTHER REMEDIES TO WHICH THEY ARE OTHERWISE
ENTITLED  ...  ."  THIS PROVISION, PLAINLY, WAS A RECOGNITION THAT
THERE WERE, PRIOR TO 1789, MARITIME CLAIMS WITHIN THE CONCURRENT
JURISDICTION OF COURTS OF ADMIRALTY AND LAW, 1 BENEDICT, AMERICAN
ADMIRALTY (6TH ED. 1940), SEC. 20; SCHOONMAKER V. GILMORE, 102 U.S.
118, 119, AND IT WAS CLEARLY THE INTENTION OF CONGRESS TO PERPETUATE
THIS DUALITY OF REMEDY.  IT IS TRUE THAT CERTAIN CLASSES OF CASES, SUCH
AS THE TRADITIONAL IN REM, PRIZE, AND SEIZURE CASES, LAY WITHIN THE
EXCLUSIVE JURISDICTION OF THE ADMIRALTY, 1 BENEDICT, AMERICAN
ADMIRALTY, SEC. 23; THE MOSES TAYLOR, 4 WALL.  411; THE HINE V. TREVOR,
4 WALL.  555; THE GLIDE, 167 U.S. 606, BUT ALL OTHER SUITS UNDER THE
MARITIME LAW OF AN IN PERSONAM NATURE MIGHT BE BROUGHT AS WELL IN THE
STATE COURTS OR, UNDER THE DIVERSITY JURISDICTION, IN THE FEDERAL
CIRCUIT COURTS.  SEC. 11, 1 STAT. 78.    IT IS THUS CLEAR THAT ANY
ARGUMENT THAT SEC. 1333 IS AN EXCLUSIVE GRANT OF JURISDICTION WOULD BE
FALSE TO THE HISTORY OF ENACTMENTS ALLOCATING THE JUDICIAL POWER OF THE
UNITED STATES.  THE FACT THAT, IN A DIVERSITY CASE UNDER SEC. 1332, THE
CLAIMANT IS FREE TO PROCEED ON THE LAW SIDE OF THE FEDERAL COURT TO
ENFORCE RIGHTS CREATED BY THE FEDERAL MARITIME LAW, SEAS SHIPPING CO.
V. SIERACKI, 328 U.S. 85, 88-89, CLEARLY RUNS COUNTER TO ANY THEORY
THAT THE FEDERAL COURTS, BECAUSE OF SEC. 9 OF THE JUDICIARY ACT OF
1789, CAN ADJUDICATE MARITIME CLAIMS ONLY WHILE SITTING IN ADMIRALTY. 
THERE IS NO COMPELLING REASON WHY SEC. 1333, WHICH DOES NOT EXCLUDE
MARITIME ACTIONS FROM BEING BROUGHT AT LAW IN A FEDERAL COURT UNDER
SEC. 1332, SHOULD EXCLUDE THEM FROM BEING SO BROUGHT UNDER SEC. 1331. 
(FN6)  INDEED, I FIND IT A GROSS ANOMALY TO HOLD, AS THE COURT HOLDS
TODAY, THAT AN ACTION ROOTED IN FEDERAL LAW CAN BE BROUGHT ON THE LAW
SIDE OF A FEDERAL COURT ONLY IF THE DIVERSITY JURISDICTION, USUALLY A
VEHICLE FOR THE ENFORCEMENT OF STATE-CREATED RIGHTS, CAN BE INVOKED. 

PLAINLY THERE IS NOTHING IN THE LANGUAGE OF SEC. 1331 WHICH WOULD
EXCLUDE JURISDICTION OF MARITIME CLAIMS OF THE NATURE ASSERTED BY
PETITIONER.  RATHER, IN MORE THAN A MANNER OF SPEAKING, THE LANGUAGE OF
THAT SECTION FITS THE CAUSE OF ACTION IN QUESTION HERE "LIKE A GLOVE,"
JENKINS V. RODERICK, 156 F. SUPP. 299, 301.  BUT THE COURT REASONS THAT
THE SECTION MUST BE READ RESTRICTIVELY BECAUSE THE CORRESPONDING
JURISDICTIONAL GRANT IN THE CONSTITUTION SPEAKS OF "CASES, IN LAW AND
EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES
...  ."  THIS SPECIFICATION OF "LAW AND EQUITY," REFLECTED IN THE 1875
ANCESTOR (FN7) OF PRESENT SEC. 1331 AS "SUITS OF A CIVIL NATURE AT
COMMON LAW OR IN EQUITY  ...  ARISING UNDER THE CONSTITUTION OR LAWS
...  ," IS SAID TO INDICATE THAT A SUIT ARISING UNDER THE SUBSTANTIVE
MARITIME LAW IS NOT COMPREHENDED UNDER THE SECTION.  BUT THE ARGUMENT
MISTAKES THE NATURE OF A SAVING CLAUSE ACTION.  AN ACTION BROUGHT UNDER
THE SAVING CLAUSE IS MAINTAINED "AT LAW" OR "IN EQUITY," AND THE VERY
ACTION THAT ROMERO WOULD ASSERT HERE HE WOULD ASSERT "AT LAW."  THE
MERE FACT THAT THE SUBSTANTIVE CLAIM A COURT ENFORCES IN A PARTICULAR
SAVING CLAUSE ACTION IS ROOTED IN THE GENERAL MARITIME LAW DOES NOT
TRANSFORM THE PROCEEDINGS FROM A SUIT "AT LAW" TO ONE "IN ADMIRALTY";
THE STATE COURTS CAN HARDLY BE SAID TO SIT "IN ADMIRALTY" WHEN THEY TRY
ACTIONS UNDER THE SAVING CLAUSE.  CF. THE HAMILTON, 207 U.S. 398, 404. 
THE SAVING CLAUSE ITSELF, IN ITS 1789 FORM, STATED THAT WHAT IT WAS
"SAVING" WAS "A COMMON LAW REMEDY" TO BE AVAILABLE IN MARITIME FACT
SITUATIONS.  IT CAN READILY BE ADMITTED THAT A SUIT "IN ADMIRALTY" IS
NOT THE SAME THING AS A SUIT "AT LAW."  BUT THIS IS NOT TO SAY THAT A
SUIT INVOLVING A MARITIME CAUSE OF ACTION CANNOT BE THE SUBJECT OF A
SUIT "AT LAW" IN THE FEDERAL COURTS.  OBVIOUSLY SAVING CLAUSE ACTIONS
BROUGHT ON THE LAW SIDE OF THE FEDERAL COURT, WITH DIVERSITY OF
CITIZENSHIP PRESENT, ARE ACTIONS "AT LAW."  IN FACT, THE GRANT OF
DIVERSITY JURISDICTION IN THE 1875 ACT WAS IN THE VERY SAME TERMS AS
THE GRANT OF THE "ARISING UNDER" JURISDICTION; THE SAME INTRODUCTORY
PHRASE, "SUITS OF A CIVIL NATURE AT COMMON LAW OR IN EQUITY," GOVERNED
BOTH GRANTS.  IT SEEMS TO ME VERY ODD TO SAY THAT THIS PHRASE,
INTRODUCING TWO GRANTS OF JURISDICTION, HAD THE EFFECT OF EXCLUDING
MARITIME CAUSES OF ACTION ENTIRELY FROM THE ONE BUT NOT AT ALL FROM THE
OTHER. 

THE LEGISLATIVE HISOTRY OF SEC. 1331 DOES NOT INDICATE ANY INTENT ON
THE APRT OF CONGRESS TO EXCLUDE CLAIMS ASSERTED UNDER FEDERAL MARITIME
LAW FROM ITS AMBIT.  THE PRESENT SECTION IS BUT THE LATEST
RECODIFICATION OF THE PROVISIONS OF THE JUDICIARY ACT OF 1875, 18 STAT.
470, ALLUDED TO ABOVE, WHICH FOR THE FIRST TIME WITH ANY PERMANENCE
VESTED IN THE FEDERAL COURTS AN ORIGIANL GENERAL FEDERAL-QUESTION
JURISDICTION OVER ANY CLAIM WHICH "ARISES UNDER THE CONSTITUTION, LAWS
OR TREATIES OF THE UNITED STATES."  THE CONGRESSIONAL DEBATES FOCUSED
SO LARGELY ON PROPOSED CHANGES IN THE DIVERSITY JURISDICTION THAT NO
CONSIDERED SCRUTINY WAS GIVEN TO THE PROVISIONS WHICH HAVE BECOME SEC.
1331.  SEE 2 CONG. REC. 4978-4988; FRANKFURTER AND LANDIS, THE BUSINESS
OF THE SUPREME COURT (1927 ED.), 65-69.  NOTHING APPEARS WHICH WOULD
INDICATE A CONGRESSIONAL INTENT TO MODIFY, BY IMPLICATION OR OTHERWISE,
THE SWEEP OF THE LANGUAGE OF THIS ACT, EMBODYING AS IT DOES
SUBSTANTIALLY THE WORDS OF THE CONSTITUTIONAL GRANT.  (FN8)  AND
NOTHING APPEARS WHICH WOULD INDICATE ANY INTENTION THAT THE ACT'S
COVERAGE BE "FROZEN" TO EXCLUDE FEDERAL CAUSES OF ACTION WHICH WERE NOT
FULLY DEVELOPED IN 1875. 

THE COURT ARGUES, HOWEVER, THAT CONGRESS, AWARE OF CHIEF JUSTICE
MARSHALL'S STATEMENT THAT ARTICLE III CREATED THE ADMIRALTY
JURISDICTION AS "DISTINCT" FROM THE "ARISING UNDER" JURISDICTION, (FN9)
AMERICAN INS. CO. V. CANTER, SUPRA, AT 545, INTENDED THAT THE
JURISDICTIONAL STATUTES BE MUTUALLY EXCLUSIVE.  THE MANAGER OF THE 1875
LEGISLATION IN THE SENATE DECLARED OF THE BILL GENERALLY THAT IT
CONFERRED "PRECISELY THE POWER WHICH THE CONSTITUTION CONFERS - NOTHING
MORE, NOTHING LESS."  2 CONG. REC. 4987.  IT IS DIFFICULT TO INFER THAT
CONGRESS MEANT TO CRYSTALLIZE ANY PARTICULAR INTERPRETATION OF THE
CONSTITUTION IN THE STATUTE.  BUT EVEN IF IT WERE PROPER, IN THE
ABSENCE OF CONCRETE INDICATION, SPECULATIVELY TO BREATHE INTO OUR
CONSTRUCTION OF SEC. 1331 VIEWS OF THE CONSTITUTION (FN10) WHICH MIGHT
HAVE SERVED AS A SILENT PREMISE OF CONGRESSIONAL ACTION, I DO NOT THINK
THAT THE COURT HERE IS CALLED ON TO DO SO.  MARSHALL'S STATEMENT IS
NOT, WHEN UNDERSTOOD IN ITS CONTEXT, CONTRARY TO MY POSITION, AND IN
FACT ITS PROPER SCOPE WAS RECOGNIZED BEFORE 1875. 

BEFORE DISCUSSING THE CANTER CASE, I THINK IT WISE TO RESTATE THE
PRECISE NATURE OF THE ISSUE BEFORE THE COURT.  THIS IS SO BECAUSE I
FEAR THE COURT, IN AN EXPANSIVE READING OF CANTER NOT JUSTIFIED EITHER
BY WHAT WAS DECIDED THERE OR BY WHAT WAS SAID THERE CONSIDERED IN THE
LIGHT OF WHAT WAS DECIDED, HAS BLURRED THE ISSUE FOR DECISION TODAY. 
THE ISSUE BEFORE US IS NOT WHETHER ALL CASES "OF ADMIRALTY AND MARITIME
JURISDICTION" ARE PER SE ENCOMPASSED IN THE STATUTORY "ARISING UNDER"
JURISDICTION.  A SUIT SEEKING THE SORT OF REMEDY THAT THE COMMON LAW IS
NOT COMPETENT TO GIVE COULD NOT BE FAIRLY CONTENDED TO LIE UNDER SEC.
1331; IT WOULD CLEARLY BE THE SORT OF SUIT IN WHICH THE JURISDICTIONAL
GRANT OF SEC. 1333 WAS INTENDED TO BE EXCLUSIVE.  THE ISSUE BEFORE US
CONCERNS ONLY ACTIONS MAINTAINABLE IN SOME FORUM "AT LAW" UNDER THE
SAVING CLAUSE.  AND AGAIN, THE ISSUE IS NOT EVEN THE NARROWER ONE
WHETHER SAVING CLAUSE ACTIONS ARE PER SE COGNIZABLE UNDER SEC. 1331. 
THE TESTS OF JURISDICTION UNDER SEC. 1331 MUST STILL BE MET, AND THERE
IS NO CONTENTION THAT THEY ARE MET MERELY BY A SHOWING THAT AN ACTION
IS ONE MAINTAINABLE UNDER THE SAVING CLAUSE AND INVOLVING THE REQUISITE
JURISDICTIONAL AMOUNT.  THE PLAINTIFF'S RIGHT TO RECOVERY MUST STILL BE
ONE ROOTED IN FEDERAL SUBSTANTIVE LAW, AND IT HAS QUITE RECENTLY BEEN
MADE CLEAR THAT THERE ARE SAVING CLAUSE ACTIONS THAT DO NOT MEET THAT
TEST.  WILBURN BOAT CO. V. FIREMAN'S FUND INS. CO., 348 U.S. 310.  THE
ISSUE BEFORE US IS ONLY WHETHER THE FACT THAT AN ACTION IS A SAVING
CLAUSE ACTION EXCLUDES IT FROM SEC. 1331 WHERE IT WOULD OTHERWISE BE
MAINTAINABLE THEREUNDER. 

AT ISSUE IN AMERICAN INS. CO. V. CANTER WAS THE POWER OF A
TERRITORIAL COURT TO MAKE A DECREE SELLING CARGO TO SATISFY A MARITIME
LIEN IN REM EXISTING IN FAVOR OF ITS SALVORS.  A STATE COURT, EVEN
UNDER THE SAVING CLAUSE, COULD NOT PASS SUCH A DECREE AT ALL; IT IS THE
ENFORCEMENT OF THE CLASSIC ADMIRALTY REMEDY, AND A MATTER SOLELY WITHIN
THE COMPETENCE OF THE FEDERAL ADMIRALTY COURTS.   THE HINE V. TREVOR, 4
WALL.  555.  IN THE PASSAGE FROM MARSHALL'S OPINION RELIED UPON, THE
CHIEF JUSTICE WAS SAYING ONLY THAT THE ACT OF CONGRESS WHICH CONFERRED
ON CERTAIN TERRITORIAL COURTS JURISDICTION IN "CASES ARISING UNDER THE
LAWS AND CONSTITUTION OF THE UNITED STATES," SEC. 8, 3 STAT.  752, DID
NOT BY THAT TOKEN ALONE GRANT THEM POWER TO ENFORCE A REMEDY PECULIARLY
WITHIN THE COMPETENCE OF ADMIRALTY COURTS.  (FN11)  IN ITS BROADEST
PERMISSIBLE INTERPRETATION, THE DICTUM ONLY MEANS THAT THE FACT THAT
THE CONSTITUTION CREATES ADMIRALTY JURISDICTION DOES NOT MAKE ALL
ADMIRALTY CASES CASES ARISING UNDER THE CONSTITUTION.  (FN12)  BUT
MARSHALL'S OPINION DOES NOT SAY THAT AN ACTION SEEKING REMEDIAL RELIEF
OF A SORT WHICH THE COMMON LAW IS COMPETENT TO GIVE, AND IN WHICH THE
PLAINTIFF'S RIGHT TO RECOVER IS ROOTED IN FEDERAL LAW, CEASES TO BE A
SUIT ARISING UNDER THE LAWS OF THE UNITED STATES MERELY BECAUSE IT IS
OF A MARITIME NATURE.  (FN13)  NO ONE IN CONTENDING HERE, OF COURSE,
THAT SEC. 1331 IS A GRANT OF POWER TO ENFORCE REMEDIES PECULIAR TO THE
ADMIRALTY; THE CONTENTION IS SOLELY THAT THAT SECTION, WHICH EMPOWERS A
FEDERAL COURT TO ADMINISTER COMMON-LAW REMEDIES IN VINDICATION OF
RIGHTS OF PLAINTIFFS WHICH TAKE THEIR ORIGIN FROM FEDERAL LAW, IS NOT
SUBJECT TO AN EXCEPTION FOR RIGHTS TAKING THEIR ORIGIN IN FEDERAL
MARITIME LAW.  MARSHALL'S OPINION SIMPLY IS NOT ADDRESSED TO THIS
QUESTION OR DISPOSITIVE OF IT. 

MUCH IS MADE BY THE COURT OF MARSHALL'S LANGUAGE THAT THE CATEGORIES
OF ACTIONS HE MENTIONS ARE "DISTINCT" AND NOT "IDENTICAL."  OF COURSE
THIS IS SO, IN A REAL SENSE AND THE ONLY SENSE IN WHICH MARSHALL MEANT
IT.  A MATTER AFFECTING AN AMBASSADOR OR A CONSUL IS NOT PER SE AN
ACTION "ARISING UNDER," JUST AS IT IS NOT PER SE A MARITIME ACTION. 
BUT COULD NOT A CASE INVOLVING A CONSUL BE ALSO A CASE OF ADMIRALTY
JURISDICTION, UNDER CERTAIN FACT SITUATIONS?  AND COULD NOT A SUIT BY
OR AGAINST A CONSUL HAPPEN, PERCHANCE, TO BE ALSO ONE "ARISING UNDER"? 
THE FACT THAT THE JURISDICITONAL CATEGORIES ARE SEPARATE AND DISTINCT,
AS MARSHALL DEMONSTRATES, DOES NOT MEAN THAT A PARTICULAR ACTION COULD
NOT COME UNDER THE HEADING OF MORE THAN ONE OF THEM.  EVERYONE
RECOGNIZES THAT THIS IS THE CASE IN A MARITIME MATTER IN WHICH THE
PARTIES ARE OF DIVERSE CITIZENSHIP.  I SEE NO REASON WHY IT SHOULD NOT
BE TRUE HERE OF ROMERO'S GENERAL MARITIME LAW CLAIMS AGAINST HIS
EMPLOYER. 

IT APPEARS ALSO TO BE CLEAR THAT EVEN BEFORE 1875 MARSHALL'S OPINION
WAS NOT THOUGHT OF AS CREATING A SITUATION IN WHICH IT WAS IMPOSSIBLE
TO SAY THAT THERE WERE MARITIME CASES THAT COULD BE ALSO ATTRIBUTED TO
OTHER CATEGORIES OF FEDERAL JURISDICTION.  LONG BEFORE CONGRESS
CONTEMPLATED THE JURISDICTIONAL GRANT OF 1875, THIS COURT IN TAYLOR V.
CARRYL, 20 HOW.  583, MADE IT CLEAR THAT THERE WERE FACT SITUATIONS
WHICH WERE OF MARITIME COGNIZANCE, GIVING RISE TO RIGHTS FOR WHICH THE
ADMIRALTY COULD SUPPLY A REMEDY, OR FOR WHICH ALTERNATIVELY PROCEEDINGS
AT THE COURSE OF COMMON LAW LAY.  MARITIME TORTS WERE SPECIFICALLY
CONCEIVED OF AS WITHIN THIS CATEGORY.  THE COURT IN THAT CASE FOLLOWED
THE VIEW OF MR. JUSTICE STORY EXPRESSED IN HIS COMMENTARIES ON THE
CONSTITUTION, WHICH WERE QUOTED WITH APPROVAL: 

"'MR. CHANCELLOR KENT AND MR. RAWLE SEEM TO THINK THAT THE ADMIRALTY
JURISDICTION GIVEN BY THE CONSTITUTION, IS, IN ALL CASES, NECESSARILY
EXCLUSIVE.  BUT IT IS BELIEVED THAT THIS OPINION IS FOUNDED ON
MISTAKE.  IT IS EXCLUSIVE IN ALL MATTERS OF PRIZE, FOR THE REASON THAT,
AT THE COMMON LAW, THIS JURISDICTION IS VESTED IN THE COURTS OF
ADMIRALTY, TO THE EXCLUSION OF THE COURTS OF COMMON LAW.  BUT IN CASES
WHERE THE JURISDICTION OF COMMON LAW AND ADMIRALTY ARE CONCURRENT, (AS
IN CASES OF POSSESSORY SUITS, MARINERS' WAGES, AND MARINE TORTS), THERE
IS NOTHING IN THE CONSTITUTION NECESSARILY LEADING TO THE CONCLUSION
THAT THE JURISDICTION WAS INTENDED TO BE EXCLUSIVE; AND THERE IS NO
BETTER GROUND, UPON GENERAL REASONING, TO CONTEND FOR IT.  THE
REASONABLE INTERPRETATION  ... WOULD SEEM TO BE, THAT IT CONFERRED ON
THE NATIONAL JUDICIARY THE ADMIRALTY AND MARITIME JURISDICTION EXACTLY
ACCORDING TO THE NATURE AND EXTENT AND MODIFICATIONS IN WHICH IT
EXISTED IN THE JURISPRUDENCE OF THE COMMON LAW.  WHEN THE JURISDICTION
WAS EXCLUSIVE, IT REMAINED SO; WHEN IT WAS CONCURRENT, IT REMAINED SO.
HENCE THE STATES COULD HAVE NO RIGHT TO CREATE COURTS OF ADMIRALTY AS
SUCH, OR TO CONFER ON THEIR OWN COURTS THE COGNIZANCE OF SUCH CASES AS
WERE EXCLUSIVELY COGNIZABLE IN ADMIRALTY COURTS.  BUT THE STATES MIGHT
WELL RETAIN AND EXERCISE THE JURISDICTION IN CASES OF WHICH THE
COGNIZANCE WAS PREVIOUSLY CONCURRENT IN THE COURTS OF COMMON LAW.  THIS
LATTER CLASS OF CASES CAN BE NO MORE DEEMED CASES OF ADMIRALTY AND
MARITIME JURISDICTION THAN CASES OF COMMON-LAW JURISDICTION.'  (3
STORY'S COM., SEC. 1666, NOTE.)"  20 HOW., AT 598. 

AND IT WAS UNDERSTOOD BEFORE 1875 THAT THIS CONCURRENT JURISDICTION
AT LAW WAS NOT ONE MERELY EXISTENT IN THE STATE COURTS, BUT ONE
AVAILABLE TO SUITORS IN THE FEDERAL COURTS.  SEE THE BELFAST, 7 WALL. 
624, 644, INFRA, PP. 406-407. 

ACCORDINGLY, I CANNOT SEE HOW IT CAN BE CONCLUDED THAT CONGRESS IN
1875 READ MARSHALL'S OPINION AS CREATING SOME SORT OF GULF THAT WOULD
MAKE IT IMPOSSIBLE FOR ANY MARITIME CASE TO BE ALSO ONE "ARISING UNDER
THE CONSTITUTION OR LAWS OF THE UNITED STATES."  (FN14) 

OF COURSE, ONE CANNOT RELY, TO PROVE THE COURT'S THESIS, ON DICTA IN
CASES DECIDED BEFORE 1875 TO THE EFFECT THAT SAVING CLAUSE ACTIONS
COULD BE BROUGHT ON THE LAW SIDE OF A FEDERAL COURT ONLY WHEN THERE IS
DIVERSITY OF CITIZENSHIP, AND THE COURT DOES NOT SO RELY.  THE BELFAST,
7 WALL.  624, 643-644; LEON V. GALCERAN, 11 WALL.  185, 188; STEAMBOAT
CO. V. CHASE, 16 WALL.  522, 533.  THE 1875 ACT FOR THE FIRST TIME WITH
ANY PERMANENCE GRANTED GENERAL FEDERAL-QUESTION JURISDICTION TO THE
FEDERAL COURTS OF FIRST INSTANCE.  IT CAN HARDLY BE DENIED THAT THESE
STATEMENTS WERE CORRECT WHEN MADE, BUT IT IS EQUALLY PLAIN THAT THEY
ARE NO AUTHORITY FOR LIMITING THE LAW-SIDE JURISDICTION TO DIVERSITY
CASES ONCE THE 1875 ACT HAD BEEN PASSED.  MOREOVER, I CANNOT SERIOUSLY
ATTACH ANY SIGNIFICANCE, AS THE COURT DOES, TO THE REPETITION, OBITER,
OF THEIR FORMULATION IN A CASE DECIDED SHORTLY AFTER THE ACT'S PASSAGE,
WHERE THE EFFECT OF THE NEW STATUTE WAS NOT AT ALL PRESENTED OR
DISCUSSED.  NORTON V. SWITZER, 93 U.S. 355, 356.  IN FACT, THE APPROACH
THIS COURT FOLLOWED IN THE INTERPRETATION OF THE SAVING CLAUSE DURING
THIS PERIOD SUPPORTS, RATHER THAN DETRACTS FROM, MY CONCLUSION HERE. 
IT WAS OBSERVED IN 1869 THAT THE REMEDIES SAVED BY THE SAVING CLAUSE
WERE SAVED "TO SUITORS, AND NOT TO THE STATE COURTS, NOR TO THE CIRCUIT
COURTS (FN15) OF THE UNITED STATES  ...  .  CONGRESS INTENDED BY THAT
PROVISION TO ALLOW THE PARTY TO SEEK REDRESS IN THE ADMIRALTY IF HE SAW
FIT TO DO SO, BUT NOT TO MAKE IT COMPULSORY IN ANY CASE WHERE THE
COMMON LAW IS COMPETENT TO GIVE HIM A REMEDY.  PROPERLY CONSTRUED, A
PARTY UNDER THAT PROVISION MAY PROCEED IN REM IN THE ADMIRALTY, OR HE
MAY BRING A SUIT IN PERSONAM IN THE SAME JURISDICTION, OR HE MAY ELECT
NOT TO GO INTO ADMIRALTY AT ALL, AND MAY RESORT TO HIS COMMON LAW
REMEDY IN THE STATE COURTS OR IN THE CIRCUIT COURT OF THE UNITED
STATES, IF HE CAN MAKE PROPER PARTIES TO GIVE THAT COURT JURISDICTION
OF HIS CASE."  THE BELFAST, 7 WALL.  624, 644.  IT IS CLEAR FROM THE
COURT'S LANGUAGE THAT THE COMMON-LAW REMEDIES SAVED TO SUITORS COULD
PROPERLY BE ENFORCED IN ANY TRIBUNAL OTHERWISE HAVING JURISDICTION; THE
REMEDIES SAVED WERE SAVED GENERALLY TO SUITORS WITHOUT DISCRIMINATION
AS TO ANY TRIBUNAL. 

NOR CAN I CONSIDER IT SOUND TO PLACE THE RELIANCE THE COURT HAS
PLACED ON THE FACT THAT THE ARGUMENTS WE ARE CONSIDERING TODAY WERE NOT
RAISED UNTIL 1950.  TILL THEN NO COURT EVER CONSIDERED THE PROBLEM THAT
WE DISCUSS HERE AT GREAT LENGTH.  NONE OF THE ASSORTMENT OF
COMMENTATORS LISTED IN THE COURT'S APPENDIX EVER DISCUSSED IT.  THE
COURT'S ARGUMENT, IN FACT, CLAIMS TO DRAW FORCE FROM THE FACT THAT IT
WAS NOT DISCUSSED AT ALL.  FROM THE FACT THAT THE ISSUE WAS NEVER
EXPLORED OR TRIED AT ALL TILL 1950, WHEN JUDGE MAGRUDER, IN A DICTUM IN
JANSSON V. SWEDISH AMERICAN LINE, (FN16) 185 F.2D 212, 216-218, TOOK A
POINT OF VIEW SIMILAR TO THE ONE EXPRESSED HERE, WE ARE ASKED TO INFER
THAT THE ARGUMENT FOR JURISDICTION SHOULD NOT SUCCEED WHEN FINALLY
RAISED.  I CANNOT ACCEPT THIS AS A CONVINCING ARGUMENT IN THE
CONSTRUCTION OF A BROADLY WRITTEN STATUTE WHICH WAS INTENDED, AT LEAST
IN SOME ASPECTS, TO BE AS BROAD AND DYNAMIC AS THE CONSTITUTION ITSELF,
AND WHICH HAS SERVED AS THE BASIC JURISDICTIONAL ENTITLEMENT FOR THE
VINDICATION OF THE NUMEROUS AND INCREASING TYPES OF FEDERALLY CREATED
RIGHTS IN THE LOWER FEDERAL COURTS EVER SINCE ITS ENACTMENT.  IT IS A
MODERN DEVELOPMENT IN LEGAL SCIENCE IN THIS COUNTRY'S FEDERAL SYSTEM
THAT INCREASING CONCERN IS TAKEN WITH THE SOURCE OF THE SUBSTANTIVE LAW
ADMINISTERED BY THE COURTS.  SOUTHERN PACIFIC CO. V. JENSEN, SUPRA, AND
NOTABLY ERIE R. CO. V. TOMPKINS, SUPRA, ARE INDICATIONS OF THIS TREND. 
WHEN LAWYERS AND JUDGES IN OUR FEDERAL SYSTEM CAME TO CONCENTRATE MORE
AND MORE ON THE SOURCE OF THE SUBSTANTIVE LAW ADMINISTERED IN THE
COURTS, AND WHEN THIS COURT'S OPINIONS MADE IT INCREASINGLY CLEAR THAT
THERE WERE KINDS OF MARITIME ACTIONS WHERE THE UNDERLYING RIGHT TO
RECOVER WAS ROOTED IN FEDERALLY CREATED LAW, INADMISSIBLE OF
SIGNIFICANT MODIFICATION BY THE STATES, IT WAS AN INEVITABLE
CONSEQUENCE THAT THE RELATION OF SEC. 1331 TO MARITIME MATTERS WOULD
COME FOR THE FIRST TIME TO BE EXAMINED, AS JUDGE MAGRUDER EXAMINED IT
IN THE JANSSON AND DOUCETTE CASES.  IF ONE VIEWS THE HISTORY OF THE
COMMON-LAW SYSTEM OF ADJUDICATION AS THE HISTORY OF A PROCESS, ONE MUST
CONCLUDE THAT THE "HISTORICAL" MATERIAL RELIED UPON BY THE COURT HAS
NOTHING TO DO WITH THIS SORT OF HISTORY AT ALL, EXCEPT TO ILLUSTRATE
ITS ANTITHESIS. 

IT IS, FINALLY, TRUE THAT THIS COURT HAS ADHERED TO A POLICY OF
CONSTRUING JURISDICTIONAL STATUTES NARROWLY.  HEALY V. RATTA, 292 U.S.
263, 270; THOMSON V. GASKILL, 315 U.S. 442, 446.  IN REGARD TO THE
GRANT OF FEDERAL-QUESTION JURISDICTION TO THE DISTRICT COURTS, THIS
COURT HAS INSISTED THAT A CLAIM CREATED UNDER FEDERAL LAW BE A
NECESSARY PART OF THE PLAINTIFF'S CASE, LOUISVILLE & NASHVILLE R. CO.
V. MOTTLEY, 211 U.S. 149, AND THAT THIS CLAIM BE TRULY FEDERAL IN
NATURE, GULLY V. FIRST NATIONAL BANK, 299 U.S. 109.  BUT THE PRESENT
PROBLEM IS APART FROM THIS LINE OF CASES, FOR HERE IT IS CLEAR THAT
PETITIONER IS PRESENTING TO A FEDERAL COURT A CLAIM CREATED BY FEDERAL
LAW, AND THE OBJECTION IS THAT SOMEHOW CONGRESS INTENDED TO EXCLUDE
CLAIMS OF THIS PARTICULAR SORT FROM THE GRANT IN SEC. 1331.  BUT THE
ARGUMENTS PRESENTED FOR SUCH A NARROW CONSTRUCTION APPEAR TO ME TOO
INSUBSTANTIAL TO WITHSTAND THE LOGIC OF PETITIONER'S POSITION.  HOWEVER
WILLING ONE MIGHT BE TO RESOLVE DOUBTFUL LANGUAGE AGAINST JURISDICTION,
EXCEPTIONS TO STATUTORY LANGUAGE CANNOT BE MANUFACTURED IN A MANNER
UNWARRANTED BY THE WORDS THEMSELVES AND DERIVED FROM THE PERTINENT
HISTORY ONLY BY A PROCESS OF FUTILE SPECULATION.  I AM COMPELLED TO THE
CONCLUSION THAT IT IS THE EFFECT OF THE 1875 ACT AND ITS INTENT, JUDGED
BY THE LIGHTS BY WHICH THE COURTS MUST DISCERN LEGISLATIVE INTENT, THAT
THE FEDERAL COURTS POSSESS ORIGINAL JURISDICTION, AT LAW, TO DETERMINE
CLAIMS ARISING UNDER FEDERAL SUBSTANTIVE MARITIME LAW, WHERE THE COMMON
LAW IS COMPETENT TO AFFORD THE REMEDY SOUGHT BY THE PLAINTIFF. 

FOURTH.  THE COURT ENVISIONS VARIOUS UNFORTUNATE RESULTS, FROM A
PRACTICAL STANDPOINT, THAT WOULD ENSUE FROM A HOLDING ON THE
JURISDICTIONAL ISSUE UNDER SEC. 1331 CONTRARY TO ITS OWN.  I SHALL
COMMENT BRIEFLY ON ITS ARGUMENTS. 

IT IS FIRST ARGUED THAT THE RECOGNITION OF JURISDICTION UNDER SEC.
1331 WOULD, COMBINED WITH THE REMOVAL PROVISIONS OF SEC. 1441(B) OF THE
JUDICIAL CODE, OPERATE TO DESTROY THE COMPETENCE OF THE STATES IN
MARITIME MATTERS ALTOGETHER.  A SOURCE CITED BY THE COURT ITSELF (FN17)
INDICATES THAT IN THE FIVE-YEAR PERIOD 1953 TO 1957 INCLUSIVE ONLY
ABOUT 150 DECISIONS IN SAVING CLAUSE ACTIONS HAVE BEEN RENDERED IN ALL
OF THE STATE COURTS OF THE COUNTRY.  AS I HAVE DEVELOPED, RESOLUTION OF
THE JURISDICTIONAL ISSUE CONTRARY TO THE MAJORITY'S VIEW WOULD NOT MEAN
THAT ALL THESE CASES WOULD BE ASSERTABLE ORIGINALLY IN THE FEDERAL
COURT OR REMOVABLE THERE, EVEN PRESENT $10,000 IN CONTROVERSY.  IT IS
APPARENT THEN THAT THE REMOVABILITY POINT ADDRESSES ITSELF TO A
SITUAITON NEARLY DE MINIMIS.  SAVING CLAUSE SUITORS SEEM LONG AGO TO
HAVE DESERTED THE STATE COURTS.  I THEREFORE CANNOT SHARE THE CONCERN
THAT STATE JUDICIARIES WILL BE DEPRIVED OF THEIR HISTORIC ACTIVE ROLES
IN THE DEVELOPMENT OF MARITIME LAW.  OF THE FEW ACTIONS THAT ARE LEFT
IN THE STATE COURTS, MANY MAY STAY, FOR AUGHT THAT CAN BE PREDICTED
NOW.  WHAT SORT OF ROLE DO THE STATE JUDICIARIES NOW HAVE IN THE
DEVELOPMENT OF THE MARITIME LAW, WITH THIRTY-ODD SAVING CLAUSE ACTIONS
A YEAR AMONG THEM?  WILL THE DOCTRINE REALLY PUT AN END TO THIS ROLE,
WHATEVER IT IS? AND IT MUST BE NOTED THAT SUCH LEGISLATIVE COMPETENCE
AS THEY POSSESS REMAINS TO THE STATES REGARDLESS OF WHAT MAY HAPPEN TO
THE NUMBER OF MARITIME CASES IN THEIR COURTS; THE VIEW I HAVE URGED
DOES NOT SUBTRACT ONE IOTA FROM THE LEGISLATIVE COMPETENCE OF THE
STATES.  AND IT IS ONLY BECAUSE OF AN ENLARGEMENT OF REMOVAL THAT IT
AFFECTS THEIR JUDICIAL COMPETENCE; IT DOES NOT TAKE AWAY THEIR ORIGINAL
JURISDICTION AT ALL, IF SUITORS ARE CONTENT WITH IT. 

IN FURTHER ELABORATION OF THE INROADS ON STATE COMPETENCE WHICH
REJECTION OF THE COURT'S VIEW IS SUPPOSED TO ENTAIL, IT IS STATED THAT
IT IS A DESTRUCTIVE OVERSIMPLIFICATION TO CLAIM THAT ALL ENFORCED
RIGHTS PERTAINING TO MARITIME MATTERS ARE ROOTED IN FEDERAL LAW.  SO IT
IS; AND NO ONE IS SO CLAIMING.  THE POINT IS NOT THAT ALL SAVING CLAUSE
ACTIONS MEET THE "ARISING UNDER" TEST OF SEC. 1331.  (FN18)  IT IS,
HOWEVER, PERFECTLY EVIDENT FROM THE PAST HOLDINGS OF THIS COURT THAT
THE SEAMAN'S ACTION FOR UNSEAWORTHINESS AND MAINTENANCE AND CURE IS
ROOTED IN FEDERAL LAW, AND IT IS ONLY THIS CLAIM THAT NEED PRESENT THE
ISSUE OF THE CASE AS TO SEC. 1331.  I AGREE PERFECTLY WITH THE COURT'S
OBSERVATION THAT IN OUR FEDERAL SYSTEM ALLOCATIONS OF JURISDICTION HAVE
BEEN CAREFULLY WROUGHT TO CORRESPOND TO THE REALITIES OF POWER AND
INTEREST AND NATIONAL POLICY.  I THINK THAT SEC. 1331 EMBODIES THIS
APPROACH BY VESTING IN THE FEDERAL COURTS, IN CIVIL ACTIONS,
JURISDICTION, AT THE OPTION OF THE SUITORS, OVER ALL SUITS SEEKING A
LEGAL OR EQUITABLE REMEDY, ARISING UNDER FEDERAL LAW AND INVOLVING A
SPECIFIED AMOUNT, AND THAT THIS IS SO WHETHER THEY INVOLVE MARITIME
MATTERS OR NOT.  I CANNOT SEE HOW IT FITS WITH THE "REALITIES OF POWER
AND INTEREST AND NATIONAL POLICY" TO SAY THAT THERE IS FEDERAL
JURISDICTION AT COMMON LAW OVER FEDERALLY DEFINED MARITIME CAUSES OF
ACTION ONLY IF THERE IS DIVERSITY OF CITIZENSHIP AMONG THE PARTIES
INVOLVED IN THEM. 

THE COURT NEXT ARGUES THAT A HOLDING TO THE CONTRARY OF ITS OWN WILL
PRODUCE VENUE PROBLEMS, AND WILL IN FACT BE UNDULY RESTRICTIVE TOWARD
PLAINTIFFS IN THEIR CHOICE OF FORUMS.  WHERE THE DISTRICT COURTS HAVE
JURISDICTION UNDER SEC. 1331 (EVEN THOUGH DIVERSITY MAY ALSO BE
PRESENT) SEC. 1391(B) OF THE JUDICIAL CODE RATHER THAN SEC. 1391(A)
GOVERNS, AND THE SUIT MUST BE BROUGHT IN THE DEFENDANTS' RESIDENCE
DISTRICT, AND MAY NOT BE BROUGHT IN THE PLAINITFFS' RESIDENCE DISTRICT,
UNLESS OF COURSE IT ALSO HAPPENS TO BE THE DEFENDANTS'.  BUT ONE
READING THE DISCUSSION OF THE CONSEQUENCES THIS WILL HAVE FOR
PLAINTIFFS IS APT TO FORGET (FOR THE COURT DOES NOT INFORM HIM) THAT
DEFENDANTS IN MARITIME ACTIONS ARE MOST LIKELY TO BE CORPORATIONS
(PARTICULARLY IN PERSONAL INJURY LITIGATION, THE SORT OF CASE WE HAVE
AT BAR) AND THAT SEC. 1391(C) DECLARES THAT THE RESIDENCE OF A
CORPORATION FOR VENUE PURPOSES IS ANY DISTRICT WHERE IT IS INCORPORATED
OR ANY DISTRICT IN WHICH IT IS LICENSED TO DO, OR ACTUALLY DOING
BUSINESS.  WITH CORPORATE VENUE SO WIDELY DEFINED, IT WILL BE A RARE
PLAINTIFF (AND A RARER PERSONAL INJURY PLAINTIFF, FOR SEAMEN AND
LONGSHOREMEN ARE APT TO LIVE NEAR WHERE THEIR EMPLOYERS CARRY ON
BUSINESS, OR WHERE THE VESSEL OWNERS THEIR EMPLOYERS SERVE DO BUSINESS)
WHO CAN TAKE MUCH ADVANTAGE FROM THE FACT THAT HE CAN SUE IN THE
DISTRICT OF HIS OWN RESIDENCE IN AN ACTION BASED SOLELY ON DIVERSITY
AND NOT OTHERWISE.  AND OF COURSE, THE EXISTENCE OF PROPER VENUE AT HIS
OWN RESIDENCE DOES NOT MEAN THE PLAINTIFF CAN SUE THE DEFENDANTS THERE;
HE MUST STILL SERVE THEM WITH PROCESS.  EXCEPT THAT PROCESS CAN BE RUN
THROUGHOUT THE LIMITS OF THE STATE, WHILE VENUE SPEAKS IN TERMS OF THE
DISTRICT, THIS MEANS THAT THE BROADER DIVERSITY VENUE ONLY IS OF
ASSISTANCE WHERE THERE IS A DEFENDANT WHO, WHILE NOT "DOING BUSINESS"
IN AN AREA, IS NONETHELESS AMENABLE TO PROCESS THERE.  OF COURSE THERE
ARE SOME SUCH, BUT I THINK BY NOW THE DIMENSIONS OF THIS "PRACTICAL"
REASON FOR THE COURT'S HOLDING ARE PATENT. 

II. 

THE COURT, THOUGH IT REJECTS ROMERO'S ASSERTION OF JURISDICTION OVER
HIS GENERAL MARITIME LAW CLAIMS AGAINST HIS EMPLOYER UNDER SEC. 1331,
PROCEEDS TO ADJUDICATE THEM ON THE MERITS.  IT REACHES THEM THROUGH A
"PENDENT" JURISDICTION THEORY ANALOGOUS TO HURN V. OURSLER, 289 U.S.
238.  THE COURT'S ACTION APPEARS UNPRECEDENTED, AS IT APPEARS TO
RECOGNIZE.  THE PRIOR APPLICATIONS OF THE DOCTRINE RECOGNIZED HERE HAVE
BEEN LIMITED TO CASES WHERE CLAIMS ARISING UNDER STATE LAW, OVER WHICH
THERE WAS NO INDEPENDENT JURISDICTION IN THE FEDERAL COURT, HAVE BEEN
INTERTWINED WITH FEDERAL CLAIMS.  THE THEORY HAS NOT BEEN HERE APPLIED
TO CASES WHERE THERE HAVE BEEN TWO TYPES OF CLAIMS, BOTH ADMITTEDLY
WITHIN THE DISTRICT COURT'S JURISDICTION, ONE OF WHICH WAS ADMITTEDLY
COGNIZABLE ACCORDING TO THE FORMS OF THE COMMON LAW AND THE OTHER,
EXCEPT FOR THE THEORY, NOT.  HERE A PLAINTIFF COMES INTO COURT DESIRING
THAT HIS CLAIMS BE ADJUDICATED STRICTLY ACCORDING TO THE COMMON LAW AND
DISCLAIMING FEDERAL JURISDICTION IN ADMIRALTY.  IN SHORT, HE DESIRES
THAT A COMMON-LAW JURY PASS UPON HIS CLAIMS.  IF THE FEDERAL COURTS DO
NOT HAVE SUCH JURISDICTION OVER ALL HIS CLAIMS, THERE ARE STATE COURTS
WHICH DO, AND HE MAY WELL PREFER THEM IN THAT EVENT.  THE COURT TODAY
TELLS HIM THAT THOUGH IT IS DOUBTFUL WHETHER THERE IS ENOUGH COMMON-LAW
JURISDICTION IN THE FEDERAL COURTS TO PROCEED TO A PLENARY ADJUDICATION
OF HIS CLAIM, THERE IS ENOUGH CERTAINLY TO AWARD SUMMARY JUDGMENT
AGAINST HIM ON THE MERITS.  I MUST SAY I CANNOT UNDERSTAND A SORT OF
JURISDICTION THAT ALLOWS THE FEDERAL COURTS TO MAKE A PRELIMINARY
EXPLORATION OF THE MERITS OF THE CASE, AND A BINDING ADJUDICATION UPON
THEM, BUT WHICH MAY NOT ALLOW THEM TO GO FURTHER. 

OBVIOUSLY WHAT WE HAVE HERE, ONCE THE COURT'S VIEW OF SEC. 1331 IS
ACCEPTED, AND AS CLAIMS ARE PRESENTED WHICH CAN SURVIVE SUMMARY
JUDGMENT, IS NOT A PROBLEM IN PENDENT JURISDICTION BUT A GLARING
PROBLEM IN JUDICIAL ADMINISTRATION AND IN THE SEPARATION OF FUNCTIONS
BETWEEN JUDGE AND JURY.  CREW MEMBERS' MARITIME TORT SUITS ALMOST
INVARIABLY URGE CLAIMS UNDER THE JONES ACT AND UNDER THE GENERAL
MARITIME LAW FOR BREACH OF THE DUTY TO MAINTAIN A SEAWORTHY VESSEL. 
THESE CLAIMS ARE LEGALLY, AND GENERALLY FACTUALLY, COMPLETELY BOUND UP
WITH EACH OTHER.  MCALLISTER V. MAGNOLIA PETROLEUM CO., 357 U.S. 221;
BALTIMORE S.S. CO. V. PHILLIPS, 274 U.S. 316.  IT WOULD BE PRODUCTIVE
OF EXTRAORDINARY PROBLEMS IF THE TWO ELEMENTS OF THE CLAIM ARE
PRESENTED TO DIFFERENT TRIERS OF FACT AT THE SAME TIME, AS WOULD BE ONE
CONSEQUENCE OF HOLDING THAT THERE WAS NO JURISDICTION AT LAW OF ANY
SORT OVER UNSEAWORTHINESS CLAIMS WHERE DIVERSITY OF CITIZENSHIP WAS
ABSENT.  CF. JENKINS V. RODERICK, 156 F. SUPP. 299, 304-306.  SHOULD AN
ADVISORY JURY (WITH THE SAME MEMBERSHIP, DOUBTLESS, AS THE "MANDATORY"
ONE HEARING THE JONES ACT CLAIM) HEAR THE UNSEAWORTHINESS CLAIM?  TO
WHAT EXTENT WOULD ITS VERDICT BIND THE JUDGE?  IF THE JUDGE PASSES ON
THE ISSUES HIMSELF, HOW TO AVOID OVERLAPPING DAMAGES, OR CONTRADICTORY
FINDINGS?  AND WHAT WOULD BE THE EFFECT OF A FINDING OF FACTS COMMON TO
BOTH CLAIMS MADE BY THE JUDGE BEFORE THE RENDITION OF THE JURY'S
VERDICT, OR VICE VERSA?  WOULD THE DOCTRINE OF COLLATERAL ESTOPPEL
APPLY?  THESE PROBLEMS ARISE IN THE WAKE OF THE COURT'S REJECTION OF
JURISDICTION UNDER SEC. 1331 AND ITS RESTRICTED HOLDING ON ANY OTHER
JURISDICTIONAL BASIS (APART FROM SEC. 1333) OF ROMERO'S CLAIMS UNDER
THE GENERAL MARITIME LAW AGAINST HIS EMPLOYER.  I CANNOT CONSIDER THAT
THE COURT'S SOLUTION OF THE CONTROVERSY AMONG THE LOWER COURTS THAT HAS
PREVAILED SINCE THE JANSSON DICTUM HAS SHED MUCH LIGHT ON THEM. 

                                           III. 

SINCE UNDER MY VIEW THERE WOULD BE JURISDICTION AT LAW (THE ONLY
JURISDICTION ROMERO INVOKED) TO CONSIDER ALL HIS CLAIMS, I ARRIVE AT
THE MERITS OF HIS CLAIMS AGAINST HIS EMPLOYER, COMPANIA TRASATLANTICA. 
AS TO THEM, I CONCUR IN THE RESULT SET FORTH IN PART II OF THE COURT'S
OPINION.  I ALSO AGREE WITH THE COURT'S DISPOSITION OF THE CLAIMS
AGAINST THE OTHER RESPONDENTS, AS SET FORTH IN PART III OF ITS
OPINION. 

THE CHIEF JUSTICE JOINS IN THIS OPINION, AND MR. JUSTICE BLACK AND
MR. JUSTICE DOUGLAS JOIN IN IT EXCEPT TO THE EXTENT INDICATED IN THEIR
DISSENTS. 

FN1  THE GRANT OF DIVERSITY OF CITIZENSHIP JURISDICTION CONTAINED IN
28 U.S.C. SEC.  1332 CONTAINS NO LANGUAGE WHICH WOULD INCLUDE A SUIT BY
ONE ALIEN AGAINST ANOTHER, EVEN WHERE THERE MIGHT ALSO BE CITIZEN
DEFENDANTS.  FOR THE CONSTITUTIONALITY OF A BROADER STATUTE, AT LEAST
UNDER ART. III, SEC. 2, CL. 1, SUBCLAUSE 8, SEE HODGSON V. BOWERBANK, 5
CRANCH 303. 

FN2  AT THE TIME OF THE COMMENCEMENT OF PETITIONER'S SUIT, SEC. 1331
READ: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL CIVIL
ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF
$3,000, EXCLUSIVE OF INTEREST AND COSTS, AND ARISES UNDER THE
CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES." 

REQUISITE JURISDICTIONAL AMOUNT TO $10,000. 

FN3 IT IS TRUE THAT TO A CERTAIN EXTENT STATE LAW MAY BE CONSULTED IN
THIS AREA, AT LEAST WHERE IT DOES NOT WORK "MATERIAL PREJUDICE TO THE
CHARACTERISTIC FEATURES OF THE GENERAL MARITIME LAW" OR INTERFERE WITH
"THE PROPER HARMONY AND UNIFORMITY OF THAT LAW  ...  ."  SOUTHERN
PACIFIC CO. V. JENSEN, SUPRA, AT 216.  FOR EXAMPLE, RECOVERY HAS MADE
USE OF STATE WRONGFUL DEATH ACTS, THE HAMILTON, 207 U.S. 398; WESTERN
FUEL CO. V. GARCIA, 257 U.S. 233; LEVINSON V. DEUPREE, 345 U.S. 648,
AND OF STATE SURVIVAL STATUTES, JUST V. CHAMBERS, 312 U.S. 383. 

FN4  THERE IS NOT PRESENTED HERE THE PROBLEM OF INTERPRETING, IN ITS
PERIPHERY WHERE STATE AND FEDERAL ELEMENTS ARE BLENDED, THE SCOPE OF
THE ARISING-UNDER PROVISIONS OF SEC. 1331.  SEE SMITH V. KANSAS CITY
TITLE & TRUST CO., 255 U.S. 180; GULLY V. FIRST NATIONAL BANK, 299 U.S.
109; SKELLY OIL CO. V. PHILLIPS PETROLEUM CO., 339 U.S. 667. 

FN5  SINCE SEC. 1331 IS DERIVED FROM SEC. 1 OF THE JUDICIARY ACT OF
1875, 18 STAT. 470, AND SINCE THE LANGUAGE OF THE JURISDICTIONAL GRANT
IN THAT ACT IS TAKEN FROM ART. III, SEC. 2, IT IS WORTHY OF NOTE THAT
THE EARLIER DRAFT FORMS OF ARTICLE III HAD PROVIDED THAT THE JUDICIAL
POWER SHOULD EXTEND TO "CASES ARISING UNDER LAWS PASSED BY THE
LEGISLATURE OF THE UNITED STATES."  SEE MADISON'S DIARY, FOR JULY 26,
AUGUST 6, AND AUGUST 27, 1787 (II ELLIOT'S DEBATES (2D ED. 1941) 368,
376, 380); WARREN, THE MAKING OF THE CONSTITUTION (1937 ED.), 538-539;
UNITED STATES V. FLORES, 289 U.S. 137, 148. 

FN6  IT IS ARGUED THAT THE POLICY OF SEC. 1331 "TO INSURE THE
AVAILABILITY OF A FORUM DESIGNED TO MINIMIZE  ...  HOSTILITY  ...  TO
THE VINDICATION OF FEDERALLY CREATED RIGHTS," HAS NO APPLICATION HERE
BECAUSE OF THE AVAILABILITY OF A FEDERAL FORUM UNDER SEC. 1333. 
SUBSTANTIALLY THE SAME ARGUMENT COULD BE MADE IN A DIVERSITY CASE UNDER
SEC. 1332 SINCE IT WOULD BE ASSUMED THAT THE ADMIRALTY WOULD BE
IMPARTIAL IN TREATMENT OF OUT-OF-STATE PARTIES.  CF. PADUANO V.
YAMASHITA KISEN KABUSHIKI KAISHA, SUPRA, AT 618. 

FN7  SEC. 1, ACT OF MARCH 3, 1875, C. 137, 18 STAT. 470.  THIS WAS
THE FIRST PERMANENT STATUTE VESTING ORIGINAL "ARISING UNDER"
JURISDICTION IN THE FEDERAL COURTS.  SECTION 11 OF THE ACT OF FEBRUARY
13, 1801, C. 4, 2 STAT. 92, EXTENDED SUCH JURISDICTION, BUT IT WAS
SHORTLY REPEALED BY SEC. 1 OF THE ACT OF MARCH 8, 1802, C. 8, 2 STAT.
132. 

FN8  I MIGHT SAY THAT I DO NOT THINK IMPRESSIVE THE COURT'S ARGUMENT
THAT BECAUSE THE MEMBERS OF THE SENATE JUDICIARY COMMITTEE AND OTHER
CONGRESSMEN IN 1875 WERE MEN OF LARGE LEGAL ATTAINMENTS AND LEARNING
THEY COULD NOT HAVE INTENDED A RESULT CONTRARY TO THE COURT'S WHEN THEY
PARTICIPATED IN THE ENACTMENT OF THE JUDICIARY ACT.  THE COURT STATES
THAT MEN OF SUCH ESTEEM WOULD NOT "SILENTLY" HAVE MADE SUCH A
"REVOLUTIONARY" CHANGE IN THE MARITIME JURISDICTION AS A HOLDING
CONTRARY TO THAT OF THE COURT'S HEREIN IS SUPPOSED TO BE.  BUT CF.
FRANKFURTER AND LANDIS, OP. CIT., SUPRA, AT 65:  "THIS DEVELOPMENT IN
THE FEDERAL JUDICIARY ("ARISING-UNDER" JURISDICTION), WHICH IN
RETROSPECT SEEMS REVOLUTIONARY, RECEIVED HARDLY A CONTEMPORARY
COMMENT."  AT ANY RATE, THE COURT'S ARGUMENT, TO ME, COMBINES AN
UNWARRANTED HISTORICAL "CULT OF THE PERSONALITY" WITH AN ATTRIBUTION OF
ONE'S OWN VIEWS TO PRIOR GENERATIONS.  WHAT IS NOT INVOLVED HERE IS
SOME SORT OF CONSPIRATORIALLY SILENT CHANGE IN FEDERAL JURISDICTION,
BUT THE QUESTION WHETHER A TACIT EXCEPTION SHOULD BE ENGRAFTED ON A
THOROUGHGOING AND EXPLICIT NEW JURISDICTIONAL GRANT; WHETHER WE SHOULD
"READ OUT" OF THE STATUTE "WHAT AS A MATTER OF ORDINARY ENGLISH SPEECH
IS IN."  UNITED STATES V. HOOD, 343 U.S. 148, 151. 

FN9  MARSHALL'S STATEMENT IN FULL IS AS FOLLOWS: 

"THE CONSTITUTION AND LAWS OF THE UNITED STATES, GIVE JURISDICTION TO
THE DISTRICT COURTS OVER ALL CASES IN ADMIRALTY; BUT JURISDICTION OVER
THE CASE, DOES NOT CONSTITUTE THE CASE ITSELF.  WE ARE THEREFORE TO
INQUIRE, WHETHER CASES IN ADMIRALTY, AND CASES ARISING UNDER THE LAWS
AND CONSTITUTION OF THE UNITED STATES, ARE IDENTICAL. 

"IF WE HAVE RECOURSE TO THAT PURE FOUNTAIN FROM WHICH ALL THE
JURISDICTION OF THE FEDERAL COURTS IS DERIVED, WE FIND LANGUAGE
EMPLOYED WHICH CANNOT WELL BE MISUNDERSTOOD.  THE CONSTITUTION
DECLARES, THAT 'THE JUDICIAL POWER SHALL EXTEND TO ALL CASES IN LAW AND
EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES,
AND TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY; TO
ALL CASES AFFECTING AMBASSADORS, OR OTHER PUBLIC MINISTERS, AND
CONSULS; TO ALL CASES OF ADMIRALTY AND MARITIME JURISDICTION.' 

"THE CONSTITUTION CERTAINLY CONTEMPLATES THESE AS THREE DISTINCT
CLASSES OF CASES; AND IF THEY ARE DISTINCT, THE GRANT OF JURISDICTION
OVER ONE OF THEM DOES NOT CONFER JURISDICTION OVER EITHER OF THE OTHER
TWO.  THE DISCRIMINATION MADE BETWEEN THEM, IN THE CONSTITUTION, IS, WE
THINK, CONCLUSIVE AGAINST THEIR IDENTITY.  IF IT WERE NOT SO, IF THIS
WERE A POINT OPEN TO INQUIRY, IT WOULD BE DIFFICULT TO MAINTAIN THE
PROPOSITION THAT THEY ARE THE SAME.  A CASE IN ADMIRALTY DOES NOT, IN
FACT, ARISE UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES.  THESE
CASES ARE AS OLD AS NAVIGATION ITSELF; AND THE LAW, ADMIRALTY AND
MARITIME, AS IT HAS EXISTED FOR AGES, IS APPLIED BY OUR COURTS TO THE
CASES AS THEY ARISE."  1 PET., AT 545-546. 

FN10  I ADVERT TO THESE CONSTITUTIONAL VIEWS ONLY FOR SUCH LIGHT AS
THEY MAY SHED ON CONGRESS' PROBABLE INTENT AT THE TIME THE ACT OF 1875
WAS UNDER CONSIDERATION.  MARSHALL'S STATEMENT MAY BE THOUGHT TO HAVE
BEEN MADE IN CONSTITUTIONAL TERMS.  AS I HAVE DEVELOPED ABOVE, THERE
CAN BE NO CONSTITUTIONAL ARGUMENT AGAINST THE POWER OF CONGRESS TO
ALLOCATE THIS TYPE OF ACTION, AT LEAST CONCURRENTLY, TO THE LAW SIDE OF
A FEDERAL COURT. 

FN11  THE POWER TO ENFORCE THE REMEDY WAS IN FACT FOUND IN ANOTHER
WHICH JURISDICTION COULD BE VESTED IN THE COURT IN QUESTION, RATHER
THAN IN THE TERRITORIAL SUPERIOR COURT, TO WHICH SEC. 8 RELATED.  CF.
NOTE 14, INFRA. 

FN12  THIS SEEMS TO BE THE IMPORT OF THE FIRST SENTENCE FROM THE
MARSHALL DICTUM QUOTED IN NOTE 9, SUPRA.  AND SEE NOTE 13, INFRA. 

FN13  THE OPINION OF JUSTICE JOHNSON IN THE CANTER CASE, RENDERING
THE JUDGMENT IN THE CIRCUIT COURT WHICH MARSHALL'S OPINION AFFIRMED ON
APPEAL, MAKES THIS VERY DISTINCTION.  JOHNSON REJECTED THE IDEA THAT
THE CONSTITUTIONAL GRANT OF ADMIRALTY JURISDICTION MADE ALL ADMIRALTY
CASES CASES ARISING UNDER THE CONSTITUTION.  HE DID NOT BELIEVE THAT
THE CAUSE OF ACTION FOR SALVAGE AROSE UNDER THE CONSTITUTION OR THE
LAWS OF THE UNITED STATES.  YET HE RECOGNIZED, AND ENUMERATED, CASES OF
A MARITIME NATURE WHERE THE SUBSTANTIVE RIGHTS WERE ROOTED IN FEDERAL
LAW, AND TO WHICH THE GRANT OF "ARISING UNDER" JURISDICTION WOULD
EXTEND.  AMERICAN INS. CO. V. CANTER, 1 FED. CAS. NO. 302A, AT 662. 
JOHNSON SAT IN THE SUPREME COURT ON THE APPEAL, AND DID NOT EXPRESS ANY
INDICATION THAT MARSHALL'S OPINION WAS CONTRARY TO WHAT HE HAD SAID AT
CIRCUIT.  IN FACT, MARSHALL'S LANGUAGE THAT "JURISDICTION OVER THE
CASE, DOES NOT CONSTITUTE THE CASE ITSELF," NOTE 9, SUPRA, APPEARS TO
RECOGNIZE JOHNSON'S DISTINCTION; THE CONSTITUTIONAL GRANT OF ADMIRALTY
JURISDICTION DOES NOT MEAN THAT ALL ADMIRALTY CASES ARE "ARISING UNDER"
CASES; THE SUBSTANTIVE LAW GOVERNING THE CASE IS DETERMINATIVE.  CF.
PUERTO RICO V. RUSSELL & CO., 288 U.S. 476, 483. 

FN14  ONLY FOUR YEARS AFTER THE PASSAGE OF THE 1875 ACT, THE COURT
REJECTED MARSHALL'S DICTUM IN THE VERY NARROW APPLICATION THAT IT HAD
AT THE TIME IT WAS ORIGINALLY DELIVERED.  IN THE CITY OF PANAMA, 101
U.S. 453, THE COURT AGAIN WAS CONSIDERING THE POWER OF A TERRITORIAL
COURT TO ENFORCE REMEDIES PECULIARLY WITHIN THE COMPETENCE OF A COURT
OF ADMIRALTY.  A COUNTERPART TO THE SECTION ON WHICH MARSHALL FINALLY
PREDICATED THE JURISDICTION IN CANTER WAS NOT PRESENTED BY THE CASE,
AND THE COURT BASED JURISDICTION ON A SECTION OF THE TERRITORIAL
ORGANIC ACT SIMILAR TO THE ONE MARSHALL HAD REJECTED, I.E., ON SEC. 9,
10 STAT. 175, 176, WHICH EXTENDED JURISDICTION IN CERTAIN "CASES
ARISING UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES."  IN
HOLDING THAT THIS "ARISING UNDER" LANGUAGE GRANTED ADMIRALTY
JURISDICTION, THE COURT REFERRED TO CANTER:  "SELECT PASSAGES OF THE
OPINION IN THAT CASE, WHEN DETACHED FROM THE CONTEXT, MAY APPEAR TO
SUPPORT THE THEORY OF THE RESPONDENTS, BUT THE ACTUAL DECISION OF THE
COURT IS EXPLICITLY AND UNDENIABLY THE OTHER WAY."  101 U.S., AT 458. 

OF COURSE, THE QUESTION WHETHER "ARISING UNDER" LANGUAGE IN AN
ORGANIC ACT FOR A TERRITORY SHOULD BE TAKEN AS VESTING THE ENTIRE
ADMIRALTY JURISDICTION, THE SUBJECT OF THE CANTER AND PANAMA DECISIONS,
IN ITSELF HAS NO RELATION TO THE ISSUE HERE.  IT IS NOT CONTENDED THAT
SEC. 1331 SOMEHOW ENTITLES THE FEDERAL DISTRICT COURTS TO EXERCISE ALL
THE ADMIRALTY POWER "AT LAW."  THE ISSUE IS WHETHER THAT SECTION GRANTS
THEM A JURISDICTION AT LAW OVER FEDERALLY BASED CLAIMS THAT REMAINS
UNAFFECTED BY THE CIRCUMSTANCES THAT PARTICULAR CLAIMS MAY BE OF A
MARITIME NATURE. 

FN15  THE ORIGINAL REPOSITORIES OF THE DIVERSITY JURISDICTION, SEC.
11, ACT OF SEPTEMBER 24, 1789, C. 20, 1 STAT. 78. 

FN16  JUDGE MAGRUDER THOROUGHLY DEVELOPED HIS VIEWS IN DOUCETTE V.
VINCENT, 194 F.2D 834. 

FN17  THE SEVENTH 5-YEAR INDEX-DIGEST OF AMERICAN MARITIME CASES,
1953-1957 (1957), XLIII-XLVIII.  THIS SOURCE REPORTS ALL STATE COURT
DECISIONS, INCLUDING THOSE NOT PUBLISHED OTHERWISE. 

FN18  THE COURT LATER, HOWEVER, RECOGNIZES THAT NO ONE IS ARGUING
THAT ALL SAVING CLAUSE ACTIONS PER SE ARE ENCOMPASSED BY SEC. 1331. 
BUT THE ARGUMENT THEN PROGRESSES THAT IT WILL BE UNFORTUNATE IF THE
COURTS ARE FORCED TO DETERMINE IN LIMINE WHETHER VARIOUS SAVING CLAUSE
ACTIONS DO OR DO NOT "ARISE UNDER" FOR SEC. 1331 PURPOSES.  IS IT
REALLY AN OBSTACLE TO THE EFFICIENT ADMINISTRATION OF JUSTICE IF A
TRIAL COURT, AT THE FIRST STAGE OF LITIGATION, IS CALLED UPON PRECISELY
TO DETERMINE WHAT IS THE LEGAL SYSTEM THAT HAS CREATED THE CAUSE OF
ACTION ON WHICH THE PLAINTIFF IS SUING? 
..END :






HEFLIN V. UNITED STATES 358 U.S. 415 


NO. 137.  ARGUED JANUARY 14-15, 1959 - DECIDED FEBRUARY 24, 1959 - 251
F.2D 69, REVERSED. 


PETITIONER WAS INDICTED AND CONVICTED ON THREE COUNTS CHARGING
VIOLATIONS OF THE FEDERAL BANK ROBBERY ACT, 18 U.S.C. SEC. 2113, BY
TAKING PROPERTY BY FORCE AND VIOLENCE AND ASSAULTING AND JEOPARDIZING
THE LIVES OF SEVERAL PERSONS IN THE COURSE OF THE TAKING, IN VIOLATION
OF SEC. 2113(D), RECEIVING THE STOLEN PROPERTY, IN VIOLATION OF SEC.
2113(C), AND CONSPIRING TO VIOLATE THE ACT.  HE WAS SENTENCED TO 10
YEARS' IMPRISONMENT ON THE FIRST OF THESE COUNTS, THREE YEARS ON THE
CONSPIRACY COUNT AND A YEAR AND A DAY ON THE COUNT CHARGING RECEIPT OF
THE STOLEN PROPERTY, THE THREE SENTENCES TO RUN CONSECUTIVELY.  WHILE
STILL IN CUSTODY UNDER THE ADMITTEDLY VALID 10-YEAR SENTENCE, HE MOVED
FOR CORRECTION OF THE SENTENCE, CLAIMING THAT HE COULD NOT BE LAWFULLY
CONVICTED UNDER BOTH SUBSECTION (C) AND (D) OF SEC. 2113 FOR
FELONIOUSLY RECEIVING AND FELONIOUSLY TAKING THE SAME PROPERTY.  HELD: 

1.  RELIEF UNDER 28 U.S.C. SEC. 2255 IS AVAILABLE ONLY TO ATTACK A
SENTENCE UNDER WHICH THE PRISONER IS IN CUSTODY; BUT RELIEF WAS
AVAILABLE TO PETITIONER UNDER RULE 35 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, WHICH AUTHORIZES THE CORRECTION OF AN ILLEGAL SENTENCE "AT
ANY TIME."  PP. 417-418. 

2.  THE SEPARATE SENTENCE UNDER 18 U.S.C. SEC. 2113(C) FOR RECEIVING
THE STOLEN PROPERTY WAS INVALID, SINCE THAT SUBSECTION WAS NOT DESIGNED
TO INCREASE THE PUNISHMENT FOR ONE WHO ROBS A BANK BUT ONLY TO PROVIDE
PUNISHMENT FOR THOSE WHO RECEIVE THE LOOT FROM THE ROBBER.  PRINCE V.
UNITED STATES, 352 U.S. 322.  PP. 419-420. 

HEFLIN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER AND TWO OTHERS WERE INDICTED AND CONVICTED UNDER THREE
COUNTS CHARGING VIOLATIONS OF THE FEDERAL BANK ROBBERY ACT, 18 U.S.C.
SEC. 2113.  ONE COUNT CHARGED TAKING THE PROPERTY BY FORCE AND
VIOLENCE, AND ASSAULTING AND JEOPARDIZING THE LIVES OF SEVERAL PERSONS
IN THE COURSE OF THE TAKING, IN VIOLATION OF SEC. 2113(D).  (FN1)
ANOTHER COUNT CHARGED THAT THEY DID "RECEIVE, POSSESS, CONCEAL, STORE,
AND DISPOSE" OF THE STOLEN MONEY IN VIOLATION OF SEC.  2113(C).  (FN2)
A THIRD COUNT CHARGED A CONSPIRACY.  THE SENTENCE IMPOSED (FN3) WAS 10
YEARS ON THE FIRST COUNT MENTIONED ABOVE, 3 YEARS ON THE CONSPIRACY
COUNT TO BEGIN TO RUN ON EXPIRATION OF THE FIRST, AND 1 YEAR AND 1 DAY
ON THE COUNT CHARGING RECEIPT OF THE STOLEN PROPERTY, THIS SENTENCE TO
BEGIN TO RUN ON EXPIRATION OF THE SENTENCE ON THE CONSPIRACY COUNT. 

ALL THESE EVENTS TOOK PLACE BEFORE OUR DECISION IN PRINCE V. UNITED
STATES, 352 U.S. 322.  SHORTLY THEREAFTER PETITIONER INSTITUTED THIS
PROCEEDING UNDER 28 U.S.C. SEC.  2255, (FN4) COMPLAINING THAT HE COULD
NOT BE LAWFULLY CONVICTED UNDER BOTH SUBSECTIONS (C) AND (D) OF SEC.
2113, I.E., OF FELONIOUSLY RECEIVING AND FELONIOUSLY TAKING THE SAME
PROPERTY.  THE DISTRICT COURT DENIED THE MOTION.  THE COURT OF APPEALS
AFFIRMED.  251 F.2D 69.  WE GRANTED CERTIORARI (357 U.S. 935) BECAUSE
OF AN APPARENT CONFLICT BETWEEN THAT DECISION AND THE PRINCE CASE. 

I. THERE IS A PRELIMINARY QUESTION OF JURISDICTION.  PETITIONER IS
NOW IN CUSTODY UNDER THE 10-YEAR SENTENCE WHICH ADMITTEDLY IS VALID. 
SINCE HE HAS NOT COMPLETED THAT SENTENCE NOR THE CONSECUTIVE CONSPIRACY
SENTENCE, IT IS ARGUED THAT RELIEF BY WAY OF SEC. 2255 MAY NOT BE HAD. 

WE REVIEWED IN UNITED STATES V. HAYMAN, 342 U.S. 205, THE HISTORY OF
SEC. 2255 AND EMPHASIZED THAT ITS PURPOSE WAS TO MINIMIZE SOME OF THE
DIFFICULTIES INVOLVED IN THE USE OF HABEAS CORPUS.  IT IS NOW ARGUED
THAT WHEN CONSECUTIVE SENTENCES ARE IMPOSED, SEC. 2255, NO MORE THAN
HABEAS CORPUS (MCNALLY V. HILL, 293 U.S. 131, 138), CAN BE USED TO
QUESTION A SENTENCE WHICH THE PRISONER HAS NOT BEGUN TO SERVE.  THE
COURT IS DIVIDED ON THAT ISSUE.  SOME THINK THAT WHEN SEC. 2255 SAYS "A
MOTION FOR SUCH RELIEF MAY BE MADE AT ANY TIME," IT MEANS WHAT IT
SAYS.  TO THEM THE CORRECTION OF SENTENCE, IF MADE, WILL AFFECT "THE
RIGHT TO BE RELEASED," PROTECTED BY SEC. 2255, EVEN THOUGH THAT RIGHT
WILL NOT BE IMMEDIATELY REALIZED.  A MAJORITY, HOWEVER, ARE OF THE
VIEW, SHARED BY SEVERAL COURTS OF APPEALS, (FN5) THAT SEC. 2255 IS
AVAILABLE ONLY TO ATTACK A SENTENCE UNDER WHICH A PRISONER IS IN
CUSTODY.  YET IN THEIR VIEW RELIEF UNDER RULE 35 OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE (FN6) IS AVAILABLE (AT LEAST WHERE MATTERS DEHORS
THE RECORD ARE NOT INVOLVED), THE ONLY QUESTION HERE BEING WHETHER THE
SENTENCE IMPOSED WAS ILLEGAL ON ITS FACE.  (FN7) 

II.  WE HELD IN PRINCE V. UNITED STATES, SUPRA, THAT THE CRIME OF
ENTRY INTO A BANK WITH INTENT TO ROB WAS NOT INTENDED BY CONGRESS TO BE
A SEPARATE OFFENSE FROM THE CONSUMMATED ROBBERY.  WE RULED THAT
ENTERING WITH INTENT TO STEAL, WHICH IS "THE HEART OF THE CRIME," ID.,
AT 328, "MERGES INTO THE COMPLETED CRIME IF THE ROBBERY IS
CONSUMMATED."  IBID.  WE GAVE THE ACT THAT CONSTRUCTION BECAUSE WE
RESOLVE AN AMBIGUITY IN FAVOR OF LENITY WHEN REQUIRED TO DETERMINE THE
INTENT OF CONGRESS IN PUNISHING MULTIPLE ASPECTS OF THE SAME CRIMINAL
ACT. 

SUBSECTION (C) OF SEC. 2113, WITH WHICH WE ARE NOW PRIMARILY
CONCERNED, CAME INTO THE LAW IN 1940.   THE LEGISLATIVE HISTORY IS
MEAGRE.  THE SENATE REPORT (S. REP. NO. 1801, 76TH CONG., 3D SESS.) IS
CAPTIONED "PUNISHMENT FOR RECEIVERS OF LOOT FROM BANK ROBBERS."  THE
REPORT STATES, "THIS BILL WOULD ADD ANOTHER SUBSECTION TO FURTHER MAKE
IT A CRIME, WITH LESS SEVERE PENALTIES (MAXIMUM $5,000 FINE AND 10
YEARS IMPRISONMENT, OR BOTH) TO WILLFULLY BECOME A RECEIVER OR
POSSESSOR OF PROPERTY TAKEN IN VIOLATION OF THE STATUTE," P. 1. 
SIMILARLY THE HOUSE REPORT STATES "PRESENT LAW DOES NOT MAKE IT A
SEPARATE SUBSTANTIVE OFFENSE KNOWINGLY TO RECEIVE OR POSSESS PROPERTY
STOLEN FROM A BANK IN VIOLATION OF THE FEDERAL BANK ROBBERY ACT, AND
THIS BILL IS DESIGNED TO COVER THE OMISSION."  H.R. REP. NO. 1668, 76TH
CONG., 3D SESS., P. 1. 

THIS CLUE TO THE PURPOSE OF CONGRESS ARGUES STRONGLY AGAINST THE
POSITION OF THE GOVERNMENT.  FROM THESE REPORTS IT SEEMS CLEAR THAT
SUBSECTION (C) WAS NOT DESIGNED TO INCREASE THE PUNISHMENT FOR HIM WHO
ROBS A BANK BUT ONLY TO PROVIDE PUNISHMENT FOR THOSE WHO RECEIVE THE
LOOT FROM THE ROBBER.  WE FIND NO PURPOSE OF CONGRESS TO PYRAMID
PENALTIES FOR LESSER OFFENSES FOLLOWING THE ROBBERY.  IT MAY BE TRUE
THAT IN LOGIC THOSE WHO DIVIDE UP THE LOOT FOLLOWING A ROBBERY RECEIVE
FROM ROBBERS AND THUS MULTIPLY THE OFFENSE.  BUT IN VIEW OF THE
LEGISLATIVE HISTORY OF SUBSECTION (C) WE THINK CONGRESS WAS TRYING TO
REACH A NEW GROUP OF WRONGDOERS, NOT TO MULTIPLY THE OFFENSE OF THE
BANK ROBBERS THEMSELVES.  REVERSED. 

FN1  THIS SUBSECTION PROVIDES: 

"WHOEVER, IN COMMITTING, OR IN ATTEMPTING TO COMMIT, ANY OFFENSE
DEFINED IN SUBSECTIONS (A) AND (B) OF THIS SECTION, ASSAULTS ANY
PERSON, OR PUTS IN JEOPARDY THE LIFE OF ANY PERSON BY THE USE OF A
DANGEROUS WEAPON OR DEVICE, SHALL BE FINED NOT MORE THAN $10,000 OR
IMPRISONED NOT MORE THAN TWENTY-FIVE YEARS, OR BOTH." 

FN2  THIS SUBSECTION STATES: 

"WHOEVER RECEIVES, POSSESSES, CONCEALS, STORES, BARTERS, SELLS, OR
DISPOSES OF, ANY PROPERTY OR MONEY OR OTHER THING OF VALUE KNOWING THE
SAME TO HAVE BEEN TAKEN FROM A BANK, OR A SAVINGS AND LOAN ASSOCIATION,
IN VIOLATION OF SUBSECTION (B) OF THIS SECTION SHALL BE SUBJECT TO THE
PUNISHMENT PROVIDED BY SAID SUBSECTION (B) FOR THE TAKER." 

FN3  THIS WAS A CORRECTED SENTENCE IMPOSED AFTER THE APPEAL, AS
REPORTED IN HEFLIN V. UNITED STATES, 223 F.2D 371. 

FN4  SECTION 2255 READS IN RELEVANT PART AS FOLLOWS: 

"A PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED BY ACT
OF CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND THAT THE
SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE
UNITED STATES, OR THAT THE COURT WAS WITHOUT JURISDICTION TO IMPOSE
SUCH SENTENCE, OR THAT THE SENTENCE WAS IN EXCESS OF THE MAXIMUM
AUTHORIZED BY LAW, OR IS OTHERWISE SUBJECT TO COLLATERAL ATTACK, MAY
MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE. 

"A MOTION FOR SUCH RELIEF MAY BE MADE AT ANY TIME. 

"UNLESS THE MOTION AND THE FILES AND RECORDS OF THE CASE CONCLUSIVELY
SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF, THE COURT SHALL CAUSE
NOTICE THEREOF TO BE SERVED UPON THE UNITED STATES ATTORNEY, GRANT A
PROMPT HEARING THEREON, DETERMINE THE ISSUES AND MAKE FINDINGS OF FACT
AND CONCLUSIONS OF LAW WITH RESPECT THERETO.  IF THE COURT FINDS THAT
THE JUDGMENT WAS RENDERED WITHOUT JURISDICTION, OR THAT THE SENTENCE
IMPOSED WAS NOT AUTHORIZED BY LAW OR OTHERWISE OPEN TO COLLATERAL
ATTACK, OR THAT THERE HAS BEEN SUCH A DENIAL OR INFRINGEMENT OF THE
CONSTITUTIONAL RIGHTS OF THE PRISONER AS TO RENDER THE JUDGMENT
VULNERABLE TO COLLATERAL ATTACK, THE COURT SHALL VACATE AND SET THE
JUDGMENT ASIDE AND SHALL DISCHARGE THE PRISONER OR RESENTENCE HIM OR
GRANT A NEW TRIAL OR CORRECT THE SENTENCE AS MAY APPEAR APPROPRIATE. 

"A COURT MAY ENTERTAIN AND DETERMINE SUCH MOTION WITHOUT REQUIRING
THE PRODUCTION OF THE PRISONER AT THE HEARING  ...  ."  62 STAT. 967,
AMENDED 63 STAT. 105. 

FN5  UNITED STATES V. BRADFORD, 194 F.2D 197; UNITED STATES V.
MCGANN, 245 F.2D 670; UNITED STATES EX REL. BOGISH V. TEES, 211 F.2D
69, 71; FOOSHEE V. UNITED STATES, 203 F.2D 247; DUGGINS V. UNITED
STATES, 240 F.2D 479; CROW V. UNITED STATES, 186 F.2D 704; OUGHTON V.
UNITED STATES, 215 F.2D 578; HOFFMAN V. UNITED STATES, 244 F.2D 378;
MILLER V. UNITED STATES, 256 F.2D 501. 

FN6  RULE 35 PROVIDES IN PART: 

"THE COURT MAY CORRECT AN ILLEGAL SENTENCE AT ANY TIME." 

FN7  SINCE THE MOTION UNDER RULE 35 IS MADE IN THE ORIGINAL CASE, THE
TIME WITHIN WHICH REVIEW BY CERTIORARI OF THE COURT OF APPEALS DECISION
SHOULD BE SOUGHT IS 30 DAYS.  SUPREME COURT RULE 22(2).  THE PETITION
FOR WRIT OF CERTIORARI IN THIS CASE WAS NOT FILED UNTIL AFTER THE
PASSAGE OF 30 DAYS FROM THE JUDGMENT BELOW.  NEVERTHELESS, BECAUSE
SUCCESSIVE MOTIONS MAY BE MADE UNDER RULE 35 AND BECAUSE NO
JURISDICTIONAL STATUTE IS INVOLVED, THE MAJORITY AGREES TO DISPENSE
WITH THE REQUIREMENTS OF OUR RULE IN ORDER TO AVOID WASTEFUL CIRCUITY. 
TO THOSE OF US WHO DEEM THAT SEC. 2255 IS AVAILABLE, THERE IS NO
QUESTION BUT THAT THE PETITION WAS IN TIME.  IT WAS FILED WITHIN THE 90
DAY PERIOD PROVIDED BY 28 U.S.C.  SEC. 2101(C) GOVERNING THIS TYPE OF
SUIT.  FOR A MOTION UNDER SEC. 2255, LIKE A PETITION FOR A WRIT OF
HABEAS CORPUS (RIDDLE V. DYCHE, 262 U.S. 333, 336), IS NOT A PROCEEDING
IN THE ORIGINAL CRIMINAL PROSECUTION BUT AN INDEPENDENT CIVIL SUIT. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK,
MR. JUSTICE HARLAN, AND MR. JUSTICE WHITTAKER JOIN, CONCURRING. 

WHILE JOINING THE COURT'S OPINION, I THINK IT CLEAR THAT A MOTION FOR
RELIEF UNDER 28 U.S.C. SEC. 2255 IS AVAILABLE ONLY TO ATTACK A SENTENCE
UNDER WHICH A PRISONER IS IN CUSTODY.  THAT IS WHAT THE STATUTE SAYS. 
THAT IS WHAT THE LEGISLATIVE HISTORY SHOWS.  THAT IS WHAT FEDERAL
COURTS, FACED ALMOST DAILY WITH THE STATUTE'S APPLICATION, HAVE
UNANIMOUSLY CONCLUDED.  PERSONAL NOTIONS AS TO THE KIND OF A POST
CONVICTION STATUTE THAT CONGRESS MIGHT HAVE ENACTED OR SHOULD ENACT
ARE, OF COURSE, ENTIRELY IRRELEVANT TO THE INQUIRY. 

FIRST.  THE WORDS WHICH CONGRESS HAS USED ARE NOT AMBIGUOUS.  SECTION
2255 PROVIDES THAT:  "A PRISONER IN CUSTODY UNDER SENTENCE  ...
CLAIMING THE RIGHT TO BE RELEASED  ...  MAY MOVE THE COURT WHICH
IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR CORRECT THE SENTENCE." 
THE STATUTE FURTHER PROVIDES:  "A MOTION FOR SUCH RELIEF MAY BE MADE AT
ANY TIME."  THIS LATTER PROVISION SIMPLY MEANS THAT, AS IN HABEAS
CORPUS, THERE IS NO STATUTE OF LIMITATIONS, NO RES JUDICATA, AND THAT
THE DOCTRINE OF LACHES IS INAPPLICABLE. 

SECOND.  THE LEGISLATIVE HISTORY OF SEC. 2255 IS REVIEWED AT LENGTH
IN THE OPINION WHICH MR. CHIEF JUSTICE VINSON WROTE FOR THE COURT IN
UNITED STATES V. HAYMAN, 342 U.S. 205.  NO CHRONICLE OF THE GENESIS AND
PURPOSE OF A LEGISLATIVE ENACTMENT COULD BE MORE AUTHENTIC, BECAUSE
ALMOST THE ENTIRE LEGISLATIVE HISTORY IS TO BE FOUND IN THE
DELIBERATIONS AND RECOMMENDATIONS OF THE JUDICIAL CONFERENCE OF THE
UNITED STATES, OVER WHICH MR. CHIEF JUSTICE VINSON THEN PRESIDED.  THE
OPINION IN HAYMAN CLEARLY SHOWS THAT "THE SOLE PURPOSE" OF THE STATUTE
"WAS TO MINIMIZE THE DIFFICULTIES ENCOUNTERED IN HABEAS CORPUS HEARINGS
BY AFFORDING THE SAME RIGHTS IN ANOTHER AND MORE CONVENIENT FORUM." 
342 U.S., AT 219.  THOSE DIFFICULTIES ARE DETAILED IN THE OPINION. 
THERE IS NOT ONE WORD TO INDICATE ANY INTENT TO ALTER THE BASIC
PRINCIPLE OF HABEAS CORPUS THAT RELIEF IS AVAILABLE ONLY TO ONE
ENTITLED TO BE RELEASED FROM CUSTODY. 

THE VERY OFFICE OF THE GREAT WRIT, ITS ONLY FUNCTION, IS TO INQUIRE
INTO THE LEGALITY OF THE DETENTION OF ONE IN CUSTODY.  IT IS
UNNECESSARY TO PARAPHRASE HERE MR. JUSTICE STONE'S PENETRATING
DISCUSSION IN MCNALLY V. HILL, 293 U.S. 131, OR TO INCORPORATE THE
THOROUGH REVIEW OF LEGAL HISTORY THERE CONTAINED.  IT WILL SUFFICE TO
NOTE ONLY THE COURT'S CONCLUSION:  "WITHOUT RESTRAINT OF LIBERTY, THE
WRIT WILL NOT ISSUE.  EQUALLY, WITHOUT RESTRAINT WHICH IS UNLAWFUL, THE
WRIT MAY NOT BE USED.  A SENTENCE WHICH THE PRISONER HAS NOT BEGUN TO
SERVE CANNOT BE THE CAUSE OF RESTRAINT WHICH THE STATUTE MAKES THE
SUBJECT OF INQUIRY."  (CITATIONS OMITTED.)  293 U.S., AT 138. 

THIRD.  IT IS SOMETHING OF AN UNDERSTATEMENT SIMPLY TO SAY THAT THESE
VIEWS ARE "SHARED BY SEVERAL COURTS OF APPEALS."  SO FAR AS I HAVE BEEN
ABLE TO FIND, THESE COURTS, AT LEAST SINCE THE HAYMAN DECISION, HAVE
BEEN UNANIMOUS IN HOLDING THAT A MOTION UNDER SEC. 2255 MAY BE FILED
ONLY BY A PRISONER CLAIMING THE RIGHT TO BE RELEASED.  THESE ARE THE
COURTS CONTINUALLY FACED WITH PROBLEMS ARISING UNDER SEC. 2255, AND
MANY OF THEM HAVE GIVEN CAREFUL CONSIDERATION TO THIS VERY ISSUE. 
UNITED STATES V. BRADFORD, 194 F.2D 197 (C.A.2D CIR.); UNITED STATES V.
MCGANN, 245 F.2D 670 (C.A.2D CIR.); UNITED STATES EX REL. BOGISH V.
TEES, 211 F.2D 69, 71 (C.A.3D CIR.); FOOSHEE V. UNITED STATES, 203 F.2D
247 (C.A. 5TH CIR.); DUGGINS V. UNITED STATES, 240 F.2D 479 (C.A. 6TH
CIR.); JUELICH V. UNITED STATES, 257 F.2D 424 (C.A. 6TH CIR.); OUGHTON
V. UNITED STATES, 215 F.2D 578 (C.A. 9TH CIR ); WILLIAMS V. UNITED
STATES, 236 F.2D 894 (C.A. 9TH CIR.); HOFFMAN V. UNITED STATES, 244
F.2D 378 (C.A. 9TH CIR.); TOLIVER V. UNITED STATES, 249 F.2D 804 (C.A.
9TH CIR.); MILLER V. UNITED STATES, 256 F.2D 501 (C.A. 9TH CIR.); SMITH
V. UNITED STATES, 259 F.2D 125 (C.A.  9TH CIR.). 

ALTHOUGH BELIEVING THAT RELIEF IN THIS CASE WAS NOT AVAILABLE UNDER
SEC. 2255, I THINK, AND INDEED THE GOVERNMENT CONCEDES, THAT RELIEF WAS
AVAILABLE TO THE PETITIONER BY VIRTUE OF RULE 35 OF THE FED. RULES
CRIM. PROC. THAT RULE PROVIDES:  "THE COURT MAY CORRECT AN ILLEGAL
SENTENCE AT ANY TIME."  THE RULE BECAME EFFECTIVE MORE THAN TWO YEARS
BEFORE THE ENACTMENT OF SEC. 2255 AND HAS AN ENTIRELY DIFFERENT
HISTORY.  IT WAS A CODIFICATION OF EXISTING LAW AND WAS INTENDED TO
REMOVE ANY DOUBT CREATED BY THE DECISION IN UNITED STATES V. MAYER, 235
U.S. 55, 67, AS TO THE JURISDICTION OF A DISTRICT COURT TO CORRECT AN
ILLEGAL SENTENCE AFTER THE EXPIRATION OF THE TERM AT WHICH IT WAS
ENTERED.*    *SEE JUDGE SHACKELFORD MILLER'S DISCUSSION OF THE
RELATIONSHIP BETWEEN SEC. 2255 AND RULE 35 IN DUGGINS V. UNITED STATES,
240 F.2D 479 (C.A. 6TH CIR.).    WHETHER RULE 35 COVERS THE BROADER
FIELD OF COLLATERAL ATTACK WHERE A HEARING TO CONSIDER MATTERS DEHORS
THE RECORD IS NECESSARY, WE NEED NOT HERE DETERMINE.  THE RULE
CERTAINLY COVERS A CASE LIKE THE PRESENT ONE WHERE THE CLAIM IS THAT
THE SENTENCE IMPOSED WAS ILLEGAL ON ITS FACE.  FOR THIS REASON, AND
BECAUSE I AGREE WITH THE COURT'S CONSTRUCTION OF THE FEDERAL BANK
ROBBERY ACT, I CONCUR IN THE OPINION AND THE JUDGMENT. 
..END :















CRUMADY V. THE JOACHIM HENDRIK FISSER 358 U.S. 423 


NO. 61.  ARGUED JANUARY 12-13, 1959 - DECIDED FEBRUARY 24, 1959* - 249
F.2D 818, REVERSED AND JUDGMENT OF THE DISTRICT COURT REINSTATED. 

*TOGETHER WITH NO. 62, THE JOACHIM HENDRIK FISSER V. NACIREMA
OPERATING CO., INC., ALSO ON CERTIORARI TO THE SAME COURT. 


PETITIONER WAS INJURED WHILE WORKING FOR A STEVEDORING COMPANY ENGAGED
IN UNLOADING A SHIP IN AN AMERICAN PORT UNDER CONTRACT WITH A THIRD
PARTY TO WHOM THE SHIP HAD BEEN CHARTERED.  PETITIONER BROUGHT THIS
ADMIRALTY SUIT BY LIBEL IN REM AGAINST THE SHIP, WHICH IMPLEADED THE
STEVEDORING COMPANY.  THE DISTRICT COURT FOUND THAT THE SHIP WAS
UNSEAWORTHY AND THEREFORE LIABLE TO PETITIONER; BUT IT ALSO FOUND THAT
THE PRIMARY CAUSE OF THE ACCIDENT WAS NEGLIGENCE OF THE STEVEDORING
COMPANY WHICH BROUGHT INTO PLAY THE UNSEAWORTHY CONDITION OF THE SHIP,
AND IT DIRECTED THE STEVEDORING COMPANY TO INDEMNIFY THE SHIP FOR THE
DAMAGES TO PETITIONER.  HELD:  THE JUDGMENT OF THE DISTRICT COURT IS
SUSTAINED.  PP. 424-429. 

1.  THE DISTRICT COURT CORRECTLY APPLIED THE CONCEPT OF
UNSEAWORTHINESS, AND ITS FINDINGS OF FACT WERE NOT CLEARLY ERRONEOUS. 
PP. 426-428. 

2.  SINCE THE NEGLIGENCE OF THE STEVEDORING COMPANY WHICH BROUGHT THE
UNSEAWORTHINESS OF THE SHIP INTO PLAY AMOUNTED TO A BREACH OF THE
WARRANTY OF WORKMANLIKE SERVICE AND THAT WARRANTY WAS FOR THE BENEFIT
OF THE SHIP, THE SHIP IS ENTITLED TO INDEMNITY FROM THE STEVEDORING
COMPANY.  PP. 428-429. 

CRUMADY V. THE JOACHIM HENDRIK FISSER ET AL. 

CERTIORARI TO THE UNTIED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, CRUMADY, WAS AN EMPLOYEE OF A STEVEDORING COMPANY ENGAGED
IN TRANSFERRING A CARGO OF LUMBER FROM THE SHIP JOACHIM HENDRIK FISSER
OF GERMAN REGISTRY TO A PIER AT NEWARK, NEW JERSEY.  WHILE SO ENGAGED,
HE WAS INJURED AND BROUGHT THIS ADMIRALTY SUIT BY LIBEL IN REM AGAINST
THE VESSEL.   THE VESSEL IMPLEADED THE STEVEDORING CONTRACTOR. 

WHEN THE ACCIDENT HAPPENED THE STEVEDORES WERE TRYING TO LIFT TWO
TIMBERS THROUGH A HATCH.  THE MANNER OF THE ACCIDENT WAS DESCRIBED AS
FOLLOWS BY THE DISTRICT COURT: 

"  ...  LIBELLANT AND HIS FELLOW-EMPLOYEES HAD PLACED A DOUBLE-EYED
WIRE ROPE SLING, PROVIDED WITH A SLIDING HOOK MOVABLE BETWEEN THE EYES
THEREOF, AROUND THE TWO TIMBERS AT A LOCATION TWO OR THREE FEET FROM
THEIR AFTER ENDS.  THE TWO EYES OF THE SLING WERE THEN PLACED UPON THE
CARGO HOOK OF THE UP-AND-DOWN BOOM RUNNER AND A SIGNAL GIVEN BY THE
STEVEDORE GANGWAYMAN TO THE WINCHMAN TO 'TAKE UP THE SLACK.'  THE
WINCHMAN COMPLIED WITH THE SIGNAL, AND DURING THIS OPERATION LIBELLANT
STOOD CLEAR UPON OTHER TIMBERS FORMING A PART OF THE CARGO, WITHIN THE
OPEN SQUARE OF THE HATCH.  THERE WAS SOME TESTIMONY THAT WHEN THE SLACK
WAS TAKEN UP BY THE WINCHMAN, THE TWO TIMBERS SLID TOWARD EACH OTHER IN
THE SLING, THE TIMBER WHICH HAD BEEN UNDER THE LOWER EDGE OF THE HATCH
COAMING MOVING OR COMMENCING TO MOVE TOWARD THE TIMBER WHICH LAY WITHIN
THE OPEN HATCH SQUARE.  AFTER THE SLACK HAD BEEN TAKEN UP BY THE
WINCHMAN, THE SAME SIGNALLER CALLED FOR THE 'TAKING OF A STRAIN' UPON
THE CARGO RUNNER.  THE WINCHMAN AGAIN RESPONDED, THE TWO-PART TOPPING
LIFT BROKE AND THE HEAD OF THE UP-AND-DOWN BOOM, WITH ITS ATTACHED
CARGO AND TOPPING-LIFT BLOCKS, FELL TO THE TOP OF THE CARGO WITHIN THE
HATCH SQUARE. 

"THE TOPPING-LIFT HAD BEEN RIGGED IN A DOUBLE PURCHASE AND HAD BEEN
SUPPORTING THE HEAD OF THE BOOM.  THE WIRE ROPE CONSTITUTING THE
TOPPING-LIFT EXTENDED FROM A SHACKE ON THE TOPPING-LIFT BLOCK AT THE
CROSS-TREE OF THE MAST, THROUGH A BLOCK AT THE BOOM HEAD, BACK THROUGH
THE MAST BLOCK, DOWN THE MAST, THROUGH A BLOCK WELDED TO THE MAST
TABLE, AND THENCE AROUND A DRUM OF THE WINCH.  WHEN THE BOOM FELL,
LIBELLANT WAS KNOCKED DOWN, EITHER BY THE BOOM ITSELF OR ITS
APPURTENANT TACKLE, AND THUS SUSTAINED NUMEROUS SERIOUS AND PERMANENTLY
DISABLING ORTHOPEDIC AND NEUROLOGICAL INJURIES."  142 F. SUPP. 389,
391. 

THE SAFE WORKING LOAD OF THE BOOM AND CARGO RUNNER AND TOPPING-LIFT
HANDLING THE LOAD AT THE TIME OF THE ACCIDENT WAS THREE TONS EACH. 
THIS EQUIPMENT, WHICH WAS PART OF THE UNLOADING AND LOADING GEAR OF THE
VESSEL, WAS IN GOOD CONDITION.  THE WINCH, WHICH SERVED THE BOOM, HAD A
"CUT OFF" DEVICE OR CIRCUIT BREAKER.  IT WAS SET TO SHUT OFF THE
CURRENT ON THE APPLICATION OF A LOAD OF ABOUT SIX TONS, WHICH WAS TWICE
THE SAFE WORKING LOAD OF THE UNLOADING GEAR.  THE CIRCUIT BREAKER
OPERATED PERFECTLY, CUTTING OFF CURRENT AT THE POINT OF STRESS FOR
WHICH IT WAS SET.  IT HAD BEEN SET TO OPERATE AT A LOAD SLIGHTLY MORE
THAN TWICE THE SAFE WORKING LOAD OF THE UNLOADING GEAR* BY EMPLOYEES OF
THE SHIP BEFORE THE WINCH WAS TURNED OVER TO PETITIONER'S FELLOW
EMPLOYEES FOR OPERATION. 

*ONE EXPERT, ROBERT A. SIMONS, TESTIFIED: 

"I SAID THAT IT IS NOT SAFE PRACTICE TO HAVE A RIG THAT WAS DESIGNED
FOR THREE TONS WORKING LOAD AND OF THE WINCH WITH A CUT-OFF SET AT SIX
TONS SO THAT YOU COULD APPLY SIX TONS LOAD TO THE HOIST BEFORE THE
WINCH WOULD CUT OFF BECAUSE THAT WOULD BE DOUBLING THE LOAD FOR WHICH
THE RIG WAS DESIGNED FOR." 

ANOTHER EXPERT, WALTER J. BYRNE, TESTIFIED: 

"  ...  IF YOU HAVE THREE-TON GEAR AND A THREE-TON WINCH AND DUE TO
CUT-OFFS IN BACK, YOU ALLOW, LET US SAY, A HUNDRED PERCENT OVERLOAD TO
BE DEVELOPED, THEN I THINK FROM MY POINT OF VIEW AS A SAFETY MAN YOU
ARE TAKING AWAY A GOVERNOR.  YOU ARE TAKING AWAY SOMETHING WHICH IS
BUILT IN FOR THE PROTECTION OF THE GEAR AND PERSONNEL." 

THE DISTRICT COURT ACCORDINGLY FOUND THE VESSEL UNSEAWORTHY AND
THEREFORE LIABLE TO PETITIONER.  IT ALSO FOUND THAT THE STEVEDORES
MOVED THE HEAD OF THE BOOM IN AN EFFORT TO CLEAR THE CARGO FROM THE
SIDES OF THE HATCH AND THAT THIS "CREATED A LOAD ON THE TOPPING-LIFT
GREATLY IN EXCESS OF ITS SAFE WORKING LOAD."  THIS ACT WAS FOUND TO BE
"THE PRIMARY CAUSE OF THE PARTING OF THE TOPPING-LIFT AND CONSEQUENT
FALL OF THE BOOM."  SINCE THE STEVEDORING COMPANY WAS FOUND TO BE
NEGLIGENT IN BRINGING "INTO PLAY THE UNSEAWORTHY CONDITION OF THE
VESSEL," THE DISTRICT COURT DIRECTED THE STEVEDORING COMPANY TO
INDEMNIFY THE VESSEL FOR THE DAMAGES TO PETITIONER.  142 F. SUPP. 389. 
THE COURT OF APPEALS REVERSED, HOLDING THAT THE VESSEL WAS NOT
UNSEAWORTHY AND THAT THE SOLE CAUSE OF THE INJURY WAS THE NEGLIGENCE OF
THE STEVEDORES.  249 F.2D 818.  A PETITION FOR REHEARING WAS DENIED EN
BANC, JUDGE BIGGS DISSENTING.  249 F.2D 821.  THE CASES ARE HERE ON
PETITIONS FOR CERTIORARI.  357 U.S. 903. 

I. WE HELD IN SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85, 95, THAT
STEVEDORES, THOUGH INTERMEDIATELY EMPLOYED, ARE, WHEN PERFORMING "THE
SHIP'S SERVICE," ENTITLED TO THE SAME PROTECTION AGAINST
UNSEAWORTHINESS WHICH MEMBERS OF THE CREW DOING THE SAME WORK WOULD
RECEIVE.  AND SEE POPE & TALBOT V. HAWN, 346 U.S. 406.  THE WORK OF
LOADING AND UNLOADING IS HISTORICALLY "THE WORK OF THE SHIP'S
SERVICE."  SEAS SHIPPING CO. V. SIERACKI, SUPRA, AT 96.  THIS
PROTECTION AGAINST UNSEAWORTHINESS IMPOSES A DUTY WHICH THE OWNER OF
THE VESSEL CANNOT DELEGATE.  SEAS SHIPPING CO. V. SIERACKI, SUPRA, AT
100.  UNSEAWORTHINESS EXTENDS NOT ONLY TO THE VESSEL BUT TO THE CREW
(BOUDOIN V. LYKES BROS. STEAMSHIP CO., 348 U.S. 336) AND TO APPLIANCES
THAT ARE APPURTENANT TO THE SHIP.  MAHNICH V. SOUTHERN S.S. CO., 321
U.S. 96.  AND AS TO APPLIANCES THE DUTY OF THE SHIPOWNER DOES NOT END
WITH SUPPLYING THEM; HE MUST KEEP THEM IN ORDER.  ID., AT 104; THE
OSCEOLA, 189 U.S. 158, 175.  THE SHIPOWNER IS NOT RELIEVED OF THESE
RESPONSIBILITIES BY TURNING CONTROL OF THE LOADING OR UNLOADING OF THE
SHIP OVER TO A STEVEDORING COMPANY.  IT WAS HELD IN GRILLEA V. UNITED
STATES, 232 F.2D 919, THAT STEVEDORES THEMSELVES COULD RENDER A SHIP
PRO TANTO UNSEAWORTHY AND MAKE THE VESSEL OWNER LIABLE FOR INJURIES TO
ONE OF THEM.  AND SEE ROGERS V. UNITED STATES LINES, 347 U.S. 984;
ALASKA S.S. CO. V. PETTERSON, 347 U.S. 396.  WE NEED NOT GO SO FAR TO
SUSTAIN THE DISTRICT COURT HERE.  FOR THERE IS AMPLE EVIDENCE TO
SUPPORT THE FINDING THAT THESE STEVEDORES DID NO MORE THAN BRING INTO
PLAY THE UNSEAWORTHY CONDITION OF THE VESSEL.  THE WINCH - AN
APPURTENANCE OF THE VESSEL - WAS NOT INHERENTLY DEFECTIVE AS WAS THE
ROPE IN THE MAHNICH CASE.  BUT IT WAS ADJUSTED BY THOSE ACTING FOR THE
VESSEL OWNER IN A WAY THAT MADE IT UNSAFE AND DANGEROUS FOR THE WORK AT
HAND.  WHILE THE RIGGING WOULD TAKE ONLY THREE TONS OF STRESS, THE CUT
OFF OF THE WINCH - ITS SAFETY DEVICE - WAS SET AT TWICE THAT LIMIT. 
THIS WAS RIGGING THAT WENT WITH THE VESSEL AND WAS SAFE FOR USE WITHIN
KNOWN LIMITS.  YET THOSE LIMITS WERE DISREGARDED BY THE VESSEL OWNER
WHEN THE WINCH WAS ADJUSTED.  THE CASE IS NO DIFFERENT IN PRINCIPLE
FROM LOADING OR UNLOADING CARGO WITH CABLE OR ROPE LACKING THE TEST
STRENGTH FOR THE WEIGHT OF THE FREIGHT TO BE MOVED.  IN THAT CASE THE
CABLE OR ROPE, IN THIS CASE THE WINCH, MAKES THE VESSEL PRO TANTO
UNSEAWORTHY.  THAT WAS THE THEORY OF THE DISTRICT COURT; IT CORRECTLY
APPLIED THE CONCEPT OF UNSEAWORTHINESS; AND ITS FINDINGS OF FACT WERE
NOT CLEARLY ERRONEOUS.  MCALLISTER V. UNITED STATES, 348 U.S. 19, 20. 

II.  A MAJORITY OF THE COURT RULED IN RYAN CO. V. PAN-ATLANTIC CORP.,
350 U.S. 124, THAT WHERE A SHIPOWNER AND STEVEDORING COMPANY ENTERED
INTO A SERVICE AGREEMENT, THE FORMER WAS ENTITLED TO INDEMNIFICATION
FOR ALL DAMAGES IT SUSTAINED AS A RESULT OF THE STEVEDORING COMPANY'S
BREACH OF ITS WARRANTY OF WORKMANLIKE SERVICE.  AND SEE WEYERHAEUSER
S.S. CO. V. NACIREMA CO., 355 U.S. 563.  THE FACTS HERE ARE DIFFERENT
FROM THOSE IN THE RYAN CASE, IN THAT THIS VESSEL HAD BEEN CHARTERED BY
ITS OWNERS TO OVIDO COMPANIA NAVIERA S.A. PANAMA, WHICH COMPANY ENTERED
INTO THE SERVICE AGREEMENT WITH THIS STEVEDORING COMPANY.  THE
CONTRACT, HOWEVER, MENTIONED THE NAME OF THE VESSEL ON WHICH THE WORK
WAS TO BE DONE AND CONTAINED AN AGREEMENT ON THE PART OF THE
STEVEDORING COMPANY "TO FAITHFULLY FURNISH SUCH STEVEDORING SERVICES." 

WE THINK THIS CASE IS GOVERNED BY THE PRINCIPLE ANNOUNCED IN THE RYAN
CASE.  THE WARRANTY WHICH A STEVEDORE OWES WHEN HE GOES ABOARD A VESSEL
TO PERFORM SERVICES IS PLAINLY FOR THE BENEFIT OF THE VESSEL WHETHER
THE VESSEL'S OWNERS ARE PARTIES TO THE CONTRACT OR NOT.  THAT IS ENOUGH
TO BRING THE VESSEL INTO THE ZONE OF MODERN LAW THAT RECOGNIZES RIGHTS
IN THIRD-PARTY BENEFICIARIES.  RESTATEMENT, LAW OF CONTRACTS, SEC.
133.  MOREOVER, AS WE SAID IN THE RYAN CASE, "COMPETENCY AND SAFETY OF
STOWAGE ARE INESCAPABLE ELEMENTS OF THE SERVICE UNDERTAKEN."  350 U.S.,
AT 133.  THEY ARE PART OF THE STEVEDORE'S "WARRANTY OF WORKMANLIKE
SERVICE THAT IS COMPARABLE TO A MANUFACTURER'S WARRANTY OF THE
SOUNDNESS OF ITS MANUFACTURED PRODUCT."  ID., AT 133-134.  SEE
MACPHERSON V. BUICK MOTOR CO., 217 N.Y. 382, 111 N.E. 1050. 

WE CONCLUDE THAT SINCE THE NEGLIGENCE OF THE STEVEDORES, WHICH
BROUGHT THE UNSEAWORTHINESS OF THE VESSEL INTO PLAY, AMOUNTED TO A
BREACH OF THE WARRANTY OF WORKMANLIKE SERVICE, THE VESSEL MAY RECOVER
OVER. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF
THE DISTRICT COURT IS REINSTATED.  IT IS SO ORDERED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

IT SHOULD BE SAID AT THE OUTSET THAT NEITHER OF THESE CASES SHOULD
HAVE BEEN TAKEN FOR REVIEW.  NO. 61, ALTHOUGH OF COURSE IMPORTANT TO
THE UNFORTUNATE VICTIM OF THIS ACCIDENT, SATISFIES NONE OF THE CIRTERIA
FOR CERTIORARI SET FORTH GENERALLY IN RULE 19.  THE CASE INVOLVES
MERELY FACTUAL ISSUES OF CONSEQUENCE ONLY IN THIS PARTICULAR
LITIGATION, AND BEING IN ADMIRALTY LACKS EVEN THAT FEATURE, THE RIGHT
TO JURY TRIAL, WHICH SOME OF MY BRETHREN HAVE FOUND TO JUSTIFY THE
COURT'S REVIEWING THE SUFFICIENCY OF THE EVIDENCE IN FELA AND JONES ACT
CASES.  NO. 62, DEPENDENT AS IT IS ON NO. 61, LIKEWISE DOES NOT BELONG
HERE. 

WHEN THIS COURT REVERSES A COURT OF APPEALS, PARTICULARLY ON ISSUES
OF FACT, I THINK THE LOWER COURT IS AT LEAST DUE AN UNDERSTANDABLE
EXPLICATION OF THE REASONS.  IN NO. 61 THE COURT HOLDS THE VESSEL
LIABLE ON THE GROUND THAT ITS SETTING OF THE CIRCUIT BREAKER TO CUT OFF
AT A STRAIN OF MORE THAN 3 TONS RENDERED THE LIFTING GEAR UNSEAWORTHY,
AND FURTHER FINDS THAT THE STEVEDORES "DID NO MORE THAN BRING INTO
PLAY" THIS UNSEAWORTHY CONDITION.  THE COURT OVERTURNS THE FINDINGS OF
A UNANIMOUS COURT OF APPEALS THAT THE SETTING OF THE CIRCUIT BREAKER AT
A STRAIN OF 6 TONS DID NOT MAKE THE LIFTING GEAR UNSEAWORTHY, AND THAT
THE ACCIDENT WAS CAUSED NOT BY THIS SETTING BUT BY THE STEVEDORES'
IMPROPER POSITIONING OF THE HEAD OF THE BOOM.*  249 F.2D 818.  IN MY
OPINION THE ACTION OF THE COURT LACKS ANY SOLID BASIS.  MY VIEWS CAN
BEST BE POINTED UP BY BRIEFLY RECOUNTING WHAT WAS HELD BY THE COURT
BELOW IN REVERSING THE DISTRICT COURT. 

*CHIEF JUDGE BIGGS, DISSENTING FROM THE REFUSAL OF THE COURT OF
APPEALS TO GRANT REHEARING EN BANC, DID NOT DISAGREE WITH THESE
FINDINGS.  249 F.2D, AT 821. 

THE COURT OF APPEALS FIRST FOUND THAT CRUMADY'S CLAIM OF
UNSEAWORTHINESS IN THE DISTRICT COURT WAS PREDICATED ON THE ALLEGED
DEFECTIVE CONDITION OF THE TOPPING-LIFT, AND NOT ON THE SETTING OF THE
CIRCUIT BREAKER.  ID., AT 819.  IT THEN CONCLUDED THAT THE DISTRICT
COURT, "WITH ADEQUATE BASIS IN THE RECORD," HAD CORRECTLY REJECTED THIS
CLAIM.  IBID. 

THE COURT THEN WENT ON TO HOLD THAT THE DISTRICT COURT HAD PROPERLY
FOUND THE ACCIDENT PRIMARILY ATTRIBUTABLE TO THE NEGLIGENT HANDLING OF
THE LIFTING OPERATION BY THE STEVEDORES, IN THAT THEY HAD PERMITTED A
LONG AND HEAVY TIMBER TO BECOME WEDGED UNDER THE COAMING OF THE HATCH
FROM WHICH IT WAS BEING REMOVED, AS WELL AS HAVING CHANGED, CONTRARY TO
INSTRUCTIONS, THE POSITION OF THE HEAD OF THE BOOM.  IBID.  THIS
"INCORRECT PROCEDURE," THE COURT OF APPEALS HELD, CAUSED THE TOPPING
LIFT CABLE TO BE SUBJECTED TO "EXCESSIVE AND ABNORMAL STRAIN," WHICH IN
TURN CAUSED THE CABLE TO BREAK AND THE BOOM TO FALL ON CRUMADY.  ID.,
AT 819, 820-821. 

NEXT, THE COURT OF APPEALS TURNED TO THE SETTING OF THE CIRCUIT
BREAKER, "A NEW THEORY OF THE SHIP'S UNSEAWORTHINESS" WHICH THE COURT
FOUND HAD BEEN "ADOPTED" BY THE TRIAL COURT ON ITS OWN INITIATIVE. 
ID., AT 819.  IN REJECTING THIS BASIS FOR HOLDING THE VESSEL LIABLE THE
COURT OF APPEALS ANALYZED THE SITUATION AS FOLLOWS:  (1) HOISTING GEAR
IS "RATED" IN TERMS OF SUPPORTING A LOAD OF NOT MORE THAN ONE-FIFTH OF
THE STRENGTH OF THE LIFTING CABLE; (2) THE GEAR HERE INVOLVED WAS RATED
TO LIFT 3 TONS; (3) THE CABLE IT WAS INTENDED TO AND DID UTILIZE, FOR
BOTH THE TOPPING-LIFT AND CARGO RUNNER, WAS STRONG ENOUGH TO WITHSTAND
A STRAIN OF 15 TONS; (4) THE SETTING OF THE CIRCUIT BREAKER TO CUT OFF
THE POWER FROM THE WINCH CONTROLLING THE LIFTING OPERATION AT A STRAIN
OF 6 TONS WAS PROPER; (5) THE CIRCUIT BREAKER FUNCTIONED PROPERLY, BUT
THE STEVEDORES' IMPROPER POSITIONING OF THE BOOM SUBJECTED THE TOPPING
LIFT TO "AN ENORMOUS, ABNORMAL AND UNANTICIPATED" ADDITIONAL STRAIN. 
ID., AT 820.    IN LIGHT OF ITS ANALYSIS OF THE RECORD THE COURT OF
APPEALS CONCLUDED (ID., AT 820-821): 

"IT WAS A PROPER FINDING THAT THE NEGLIGENCE OF THE STEVEDORES WAS
'THE SOLE ACTIVE OR PRIMARY CAUSE' OF THE PARTING OF THE GEAR.  BUT WE
THINK IT IS EQUALLY CLEAR THAT THE COURT ERRED IN THE NEXT STEP OF ITS
REASONING, THAT THIS NEGLIGENCE OF NACIREMA 'BROUGHT INTO PLAY THE
UNSEAWORTHY CONDITION OF THE VESSEL.'  THE CONCEPT OF SEAWORTHINESS
CONTEMPLATES NO MORE THAN THAT A SHIP'S GEAR SHALL BE REASONABLY FIT
FOR ITS INTENDED PURPOSE.  (FOOTNOTE OMITTED.)  APPLIED TO THE PRESENT
FACTS, THIS MEANS THAT THE SETTING OF THE ELECTRICAL CIRCUIT BREAKER
COULD MAKE THE GEAR UNSEAWORTHY ONLY IF THERE WAS REASON TO FEAR THAT A
STRAIN OF ABOUT SIX TONS ON THE RUNNING GEAR, WHICH WOULD ACTIVATE THE
CUT OFF, WOULD SUBJECT CABLE OF FIFTEENT TON CAPACITY IN THE TOPPING
LIFT TO A DANGEROUS STRAIN.  THERE IS NOTHING IN THIS RECORD WHICH
SUGGESTS THAT SUCH AN EVENTUALITY WAS REASONABLY TO BE FEARED OR
ANTICIPATED.  THUS, THE GEAR WAS NOT PROVED TO HAVE BEEN UNSEAWORTHY,
NEITHER WAS THE SETTING OF THE CUT OFF DEVICE ESTABLISHED AS A LEGAL
CAUSE OF THE ACCIDENT WHICH OCCURRED." 

WHAT ANSWER DOES THIS COURT NOW MAKE TO THE COURT OF APPEALS'
CONVINCINGLY REASONED OPINION?  SIMPLY THE ASSERTION THAT BECAUSE THE
LIFTING GEAR WAS "RATED" FOR ONLY 3 TONS, IT WAS NOT CLEARLY ERRONEOUS
FOR THE DISTRICT COURT TO CONCLUDE THAT IT WAS WRONG TO SET THE CIRCUIT
BREAKER TO CUT OFF AT 6 TONS, "TWICE THE LIMIT."  WHAT SUPPORT DOES THE
COURT MUSTER FOR THIS ASSERTION?  NOTHING BUT A FOOTNOTE REFERENCE TO
THE TESTIMONY OF TWO WITNESSES, WITHOUT SO MUCH AS A WORD ABOUT THE
COURT OF APPEALS' REJECTION OF THE PROBATIVE VALUE OF SUCH TESTIMONY IN
THE FACE OF, AMONG OTHER THINGS, "A COAST GUARD STANDARD FOR THE
SETTING OF SUCH A CONTROL, INDICATING THAT THE SETTING (AT 6 TONS) OF
THE CUT OFF DEVICE WAS ENTIRELY SAFE AND PROPER."  ID., AT 820. 

PERHAPS I SHOULD ADD THAT I BELIEVE UNAVAILING CHIEF JUDGE BIGGS'
SUGGESTION ON PETITION FOR REHEARING THAT LIABILITY MIGHT BE PREDICATED
ON THE STEVEDORES' IMPROPER POSITIONING OF THE HEAD OF THE BOOM AND THE
THEORY OF UNSEAWORTHINESS ENUNCIATED BY JUDGE LEARNED HAND IN GRILLEA
V. UNITED STATES, 232 F.2D 919.  249 F.2D, AT 821.  THE RECORD CONTAINS
NO INDICATION THAT THE POSITIONING OF THE BOOM WAS OTHER THAN "AN
INCIDENT IN A CONTINUOUS OPERATION" BEYOND THE COMPASS OF THAT THEORY. 
GRILLEA V. UNITED STATES, SUPRA, AT 922. 

IN VIEW OF THE FOREGOING I THINK THE COURT'S ACTION OVERRIDING THE
COURT OF APPEALS ENTIRELY UNJUSTIFIED.  I WOULD AFFIRM THE JUDGMENT
BELOW IN NO. 61, AND NOT REACH, AS THE COURT OF APPEALS FOUND IT
UNNECESSARY TO DO, THE INDEMNITY ISSUE PUT TO US IN NO. 62. 

SINCE MY VIEWS HAVE NOT PREVAILED, HOWEVER, I AM BOUND TO CONSIDER
THE INDEMNITY ISSUE IN LIGHT OF THE COURT'S REASONING IN THE ACTION FOR
UNSEAWORTHINESS.  IN THIS LIGHT I MUST AGAIN DISSENT.  AS I READ RYAN
STEVEDORING CO. V. PAN-ATLANTIC S.S. CORP., 350 U.S. 124, THE SHIP IS
ENTITLED TO INDEMNITY ONLY IF THE LIABILITY-INDUCING UNSEAWORTHINESS OR
HAZARDOUS WORKING CONDITION IS CREATED BY THE STEVEDORE.  HERE, ON THE
COURT'S PREMISES, NACIREMA MERELY BROUGHT INTO PLAY AN UNSEAWORTHY
CONDITION CREATED BY THE VESSEL ITSELF.  AND ON THE COURT'S FURTHER
PREMISE THAT THIS CONDITION WAS THE CAUSE OF THE INJURIES SUSTAINED BY
CRUMADY I THINK NEITHER THE DECISION NOR THE UNDERLYING PRINCIPLES IN
RYAN JUSTIFIES THE AWARD OF INDEMNITY.  CF. WEYERHAUESER S.S. CO. V.
NACIREMA OPERATING CO., 355 U.S. 563, 568. 
..END :



















RAILWAY EXPRESS AGENCY V. VIRGINIA 358 U.S. 434 


NO. 38.  ARGUED OCTOBER 15, 1958 - DECIDED FEBRUARY 24, 1959 - 199 VA.
589, 100 S.E. 785, AFFIRMED. 


1.  A VIRGINIA STATUTE PROVIDES A SEPARATE SYSTEM OF TAXATION FOR
EXPRESS COMPANIES.  IN LIEU OF ALL TAXES ON THEIR OTHER INTANGIBLE
PROPERTY AND ROLLING STOCK, IT LEVIES ON EXPRESS COMPANIES A "FRANCHISE
TAX" MEASURED BY GROSS RECEIPTS FROM THEIR OPERATIONS WITHIN VIRGINIA,
INCLUDING RECEIPTS DERIVED FROM TRANSPORTATION WITHIN THE STATE OF
EXPRESS TRANSPORTED THROUGH, INTO OR OUT OF THE STATE.  HELD:  AS
APPLIED TO APPELLENT, A FOREIGN CORPORATION DOING AN EXCLUSIVELY
INTERSTATE BUSINESS IN VIRGINIA AND OWNING PROPERTY THERE, THIS TAX
DOES NOT VIOLATE THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP.
435-443. 

(A)  RAILWAY EXPRESS AGENCY V. VIRGINIA, 347 U.S. 359,
DISTINGUISHED.  PP. 438-439. 

(B)  THE DESCRIPTIVE WORDS USED BY A STATE LEGISLATURE IN LABELLING A
TAX STATUTE HAVE NO MAGIC EFFECT UPON ITS VALIDITY OR INVALIDITY; BUT,
WHERE THE PLAIN LANGUAGE OF THE STATUTE SHOWS THAT THE LEGISLATURE
INTENDED TO LEVY THE TAX UPON INTANGIBLE PROPERTY AND "GOING CONCERN"
VALUE AND THAT INTERPRETATION IS BUTTRESSED BY A UNANIMITY OF OPINION
OF ALL STATE AGENCIES, INCLUDING THE STATE'S HIGHEST COURT, GREAT
WEIGHT MUST BE GIVEN TO THE DESCRIPTIVE WORDS SO USED IN DETERMINING
THE NATURAL AND REASONABLE EFFECT OF THE STATUTE.  PP. 440-441. 

(C)  WHEN MEASURING "GOING CONCERN" VALUE, THE STATE HAS THE RIGHT TO
USE ANY FAIR FORMULA WHICH WOULD GIVE EFFECT TO THE INTANGIBLE FACTORS
WHICH INFLUENCE REAL VALUES, AND THAT IS EXACTLY WHAT THE STATE HAS
DONE HERE.  PP. 441-442. 

(D)  THE EXCLUSIVE EXPRESS PRIVILEGES ENJOYED BY APPELLANT ON THE
RAILROADS, ADMITTEDLY VALUABLE CONTRACT RIGHTS, CANNOT BE SAID TO HAVE
NO VALUE BECAUSE ALL OF APPELLANT'S NET INCOME IS PAID OVER TO THE
RAILROADS FOR THE SPECIFIC PURPOSE OF PRECLUDING IT FROM HAVING ANY NET
TAXABLE INCOME, THUS FRUSTRATING THE COLLECTION OF AN OTHERWISE FAIR
TAX.  P. 442. 

(E)  THE FACT THAT VIRGINIA COULD NOT PREVENT APPELLANT FROM ENGAGING
IN ITS EXCLUSIVELY INTERSTATE BUSINESS DOES NOT PREVENT VIRGINIA FROM
TAXING THE "GOOD WILL" OR "GOING CONCERN" VALUE BUILT UP BY SUCH
INTERSTATE BUSINESS.  PP. 442-443. 

2.  IN ITS TAX RETURN, APPELLANT FAILED TO FURNISH INFORMATION
SHOWING ITS GROSS RECEIPTS ALLOCATED TO VIRGINIA, WHICH WAS CALLED FOR
UNDER THE STATUTE AND REQUESTED BY THE TAX AUTHORITIES.  THIS PREVENTED
THE TAX AUTHORITIES FROM OBTAINING THE CORRECT AMOUNT EXCEPT BY SOME
METHOD OF APPROXIMATION, AND THEY USED A FORMULA WHICH, IN EFFECT,
ASCRIBED TO VIRGINIA SUCH PROPORTION OF APPELLANT'S GROSS RECEIPTS AS
THE MILEAGE OF CARRIERS WITHIN VIRGINIA BORE TO THE TOTAL NATIONAL
MILEAGE OF THE SAME CARRIERS.  HELD:  IN THESE CIRCUMSTANCES, THIS
METHOD OF CALCULATING THE TAX WAS NOT SO PALPABLY UNREASONABLE AS TO
DEPRIVE APPELLANT OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  PP. 443-445. 

RAILWAY EXPRESS AGENCY, INC., V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN THE EFFORT OF THE COMMONWEALTH OF VIRGINIA TO LEVY A TAX
AGAINST EXPRESS AGENCIES IS BEFORE US FOR DECISION.  NEARLY FIVE YEARS
AGO THIS COURT STRUCK DOWN AS A "PRIVILEGE TAX" VIOLATIVE OF THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION ITS TAX STATUTE UNDER WHICH
WAS LAID AN ASSESSMENT ON APPELLANT'S "PRIVILEGE OF DOING BUSINESS" IN
VIRGINIA.  (FN1)  RAILWAY EXPRESS AGENCY V. VIRGINIA, 347 U.S. 359
(1954).  SUBSEQUENTLY THE VIRGINIA GENERAL ASSEMBLY ENACTED THE ACT
HERE INVOLVED LEVYING A "FRANCHISE TAX" ON EXPRESS COMPANIES, MEASURED
BY GROSS RECEIPTS FROM OPERATIONS WITHIN VIRGINIA, IN LIEU OF ALL OTHER
PROPERTY TAXES ON INTANGIBLES AND ROLLING STOCK.  IN DUE COURSE AN
ASSESSMENT AGAINST APPELLANT WAS MADE THEREUNDER FOR 1956.  BOTH THE
STATE CORPORATION COMMISSION, WHICH HAS JURISDICTION OF SUCH LEVIES IN
VIRGINIA, AND THE COMMONWEALTH'S HIGHEST COURT HAVE UPHELD THE VALIDITY
OF THE NEW LAW AS WELL AS THE ASSESSMENT MADE THEREUNDER, RAILWAY
EXPRESS AGENCY V. VIRGINIA, 199 VA. 589, 100 S.E.2D 785.  APPELLANT
LEVELS A DUAL ATTACK, THE FIRST BEING THAT THE STATUTE IS A "PRIVILEGE
TAX" AND LIKE THE FORMER ONE VIOLATES THE COMMERCE CLAUSE; OR,
SECONDLY, THAT IN ANY EVENT THE ASSESSMENT UNDER IT IS CALCULATED IN
SUCH A MANNER AS TO DEPRIVE APPELLANT OF ITS PROPERTY WITHOUT DUE
PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  ON APPEAL WE
NOTED PROBABLE JURISDICTION, 356 U.S. 929 (1958).  WE BELIEVE THAT
VIRGINIA HAS ELIMINATED THE COMMERCE CLAUSE OBJECTIONS SUSTAINED
AGAINST ITS FORMER TAX LAW.  WHILE THE TAX IS IN LIEU OF OTHER PROPERTY
TAXES WHICH VIRGINIA CAN LEGALLY ASSESS AND SHOULD BE THEIR JUST
EQUIVALENT IN AMOUNT, POSTAL TELEGRAPH CABLE CO. V. ADAMS, 155 U.S.
688, 696 (1895), WE WILL NOT INQUIRE INTO THE EXACTITUDES OF THE
FORMULA WHERE APPELLANT HAS NOT SHOWN IT TO BE SO BASELESS AS TO
VIOLATE DUE PROCESS.  NASHVILLE, C. & ST. L.R. V. BROWNING, 310 U.S.
362 (1940).  THE FAILURE OF THE APPELLANT TO FURNISH, IN ITS RETURN,
CERTAIN NECESSARY INFORMATION SHOWING ITS GROSS RECEIPTS ALLOCATED TO
VIRGINIA, CALLED FOR UNDER THE STATUTE AND REQUESTED BY THE
COMMONWEALTH, HAS LEFT THE CORRECT AMOUNT UNOBTAINABLE BY THE LATTER
EXCEPT BY SOME METHOD OF APPROXIMATION AND PLACES THE BURDEN ON
APPELLANT TO COME FORWARD WITH AFFIRMATIVE EVIDENCE OF EXTRATERRITORIAL
ASSESSMENT. 

                BACKGROUND AND ACTIVITY OF APPELLANT IN VIRGINIA. 

SINCE THE OPINION IN THE FORMER APPEAL, SUPRA, AT PP. 360-361,
RELATES THE FACTUAL DETAILS CONCERNING APPELLANT'S OPERATIONS IN
VIRGINIA, WE BELIEVE IT SUFFICIENT TO SAY HERE THAT IT IS A DELAWARE
CORPORATION, OWNED BY 68 OF THE RAILROADS OF THE UNITED STATES.  IT IS
ENGAGED IN BOTH AN INTERSTATE AND INTRASTATE EXPRESS BUSINESS
THROUGHOUT THE NATION, SAVE IN VIRGINIA, WHERE A CONSTITUTIONAL
PROVISION BARS FOREIGN CORPORATIONS FROM POSSESSING OR EXERCISING ANY
OF THE POWERS OR FUNCTIONS OF PUBLIC SERVICE CORPORATIONS.  THERE IT
OPERATES A WHOLLY OWNED SUBSIDIARY, A VIRGINIA CORPORATION, WHICH
CARRIES ON ITS INTRASTATE FUNCTIONS WITHIN THE COMMONWEALTH. 
APPELLANT'S VIRGINIA BUSINESS IS THUS OF AN EXCLUSIVELY INTERSTATE
NATURE.  THROUGH EXCLUSIVE CONTRACT ARRANGEMENTS WITH 177 OF THE
RAILROADS OF THE NATION APPELLANT IS THE SOLE OPERATOR OF EXPRESS
FACILITIES ON THEIR LINES, INCLUDING VIRGINIA.  IT PAYS THEREFOR ALL OF
ITS NET INCOME, THUS ACHIEVING ONE OF THE STATED PURPOSES OF THE
AGREEMENT - THAT APPELLANT "  ...  SHALL HAVE NO NET TAXABLE INCOME." 
IN TURN, APPELLANT'S VIRGINIA SUBSIDIARY PAYS ALL OF ITS NET INCOME
OVER TO IT FOR THE PRIVILEGE OF EXERCISING APPELLANT'S EXCLUSIVE
CONTRACTS IN INTRASTATE BUSINESS IN THE COMMONWEALTH.  APPELLANT OWNS
PROPERTY WITHIN VIRGINIA, ITS RETURN FILED WITH THE COMMONWEALTH FOR
TAX PURPOSES SHOWING $120,110.70 IN CASH ON DEPOSIT; AUTOMOTIVE
EQUIPMENT AND TRUCKS $262,719.63; REAL ESTATE OF THE VALUE OF $32,850;
AND OFFICE EQUIPMENT LISTED AT $42,884.83. 

                  VIRGINIA'S GENERAL TAXING SYSTEM. 

THE COMMONWEALTH HAS A COMPREHENSIVE TAX STRUCTURE COVERING PUBLIC
SERVICE CORPORATIONS.  (FN2) IT EMPOWERS LOCAL GOVERNMENTS TO LEVY AD
VALOREM TAXES ON THE "DEAD" VALUE OF ALL REAL PROPERTY AND TANGIBLE
PERSONAL PROPERTY, EXCEPT ROLLING STOCK, LOCATED WITHIN THEIR
RESPECTIVE JURISDICTIONS.  THIS LEAVES FREE FOR STATE PURPOSES TAXES ON
ROLLING STOCK, MONEY AND OTHER INTANGIBLES, AND THE "LIVE" OR "GOING
CONCERN" VALUE OF THE BUSINESS IN VIRGINIA.  WE ARE CONCERNED ONLY WITH
THE STATE TAX WHICH IS LEVIED ON THE FRANCHISES OF EXPRESS COMPANIES. 
IT PROVIDES (FN3) IN PERTINENT PART THAT: 

"EACH EXPRESS COMPANY  ...  SHALL  ...  PAY TO THE STATE A FRANCHISE
TAX WHICH SHALL BE IN LIEU OF TAXES UPON ALL OF ITS OTHER INTANGIBLE
PROPERTY AND IN LIEU OF PROPERTY TAXES ON ITS ROLLING STOCK." 

THE FRANCHISE TAX IS MEASURED BY "THE GROSS RECEIPTS DERIVED FROM
OPERATIONS WITHIN" VIRGINIA WHICH IS DEEMED: 

"TO BE ALL RECEIPTS ON BUSINESS BEGINNING AND ENDING WITHIN THIS
STATE AND ALL RECEIPTS DERIVED FROM THE TRANSPORTATION WITHIN THIS
STATE OF EXPRESS TRANSPORTED THROUGH, INTO, OR OUT OF THIS STATE." 

THE STATE CORPORATION COMMISSION IS DIRECTED, AFTER NOTICE, TO ASSESS
THE FRANCHISE TAX ON THE BASIS OF A REPORT TO BE FILED BY THE COMPANY
INVOLVED OR, IN CASE OF ITS FAILURE TO FILE SUCH REPORT, THE COMMISSION
IS TO BASE THE ASSESSMENT "UPON THE BEST AND MOST RELIABLE INFORMATION
THAT IT CAN PROCURE." 

THE ISSUES UNDER THE STATUTE. 

FIRST, LET US CLEAR AWAY THE DEAD UNDERBRUSH OF THE OLD LAW.  THE NEW
TAX IS NOT DENOMINATED A LICENSE TAX LAID ON THE "PRIVILEGE OF DOING
BUSINESS IN VIRGINIA"; NOR IS IT "IN ADDITION TO THE PROPERTY TAX"
LEVIED AGAINST APPELLANT, NOR A CONDITION PRECEDENT TO ITS ENGAGING IN
INTERSTATE COMMERCE IN THE COMMONWEALTH.  THE GENERAL ASSEMBLY HAS MADE
CRYSTAL-CLEAR THAT THE TAX IS NOW A FRANCHISE TAX LAID ON THE
INTANGIBLE PROPERTY OF APPELLANT, AND IS LEVIED "IN LIEU OF TAXES UPON
ALL OF ITS OTHER INTANGIBLE PROPERTY AND  ...  ROLLING STOCK."  THE
MEASURE OF THE TAX IS ON GROSS RECEIPTS, FAIRLY APPORTIONED, AND, AS TO
APPELLANT, IS LAID ONLY ON THOSE "DERIVED FROM THE TRANSPORTATION
WITHIN THIS STATE OF EXPRESS TRANSPORTED THROUGH, INTO, OR OUT OF THIS
STATE." 

APPELLANT CONCEDES THAT THE COMMERCE CLAUSE DOES NOT PROHIBIT THE
STATES FROM LEVYING A TAX ON PROPERTY OWNED BY A CONCERN DOING AN
INTERSTATE BUSINESS.  IT AGREES THAT IT HAS ROLLING STOCK AND MONEY IN
THE COMMONWEALTH, AS WELL AS INTANGIBLES, INCLUDING ITS EXCLUSIVE
EXPRESS PRIVILEGES WITH THE RAILROADS.  IT READILY ADMITS THAT THE
LATTER AGREEMENTS ARE "VALUABLE CONTRACT RIGHTS" AND CONTRIBUTE A
PRINCIPAL ELEMENT TO THE "GOING CONCERN VALUE" OF ITS BUSINESS IN THE
COMMONWEALTH.  SUBSUMING THAT A VALID TAX LEVY MIGHT BE LEVIED ON SUCH
INTANGIBLES, IT ARGUES, HOWEVER, THAT THE INCIDENCE OF THE TAX IS ON
APPELLANT'S PRIVILEGE TO CARRY ON AN EXCLUSIVELY INTERSTATE BUSINESS IN
VIRGINIA RATHER THAN ON INTANGIBLE PROPERTY.  OUR SOLE QUESTION UNDER
THE COMMERCE CLAUSE IS WHETHER THE TAX IN PRACTICAL OPERATION IS ON
PROPERTY OR ON PRIVILEGE. 

THE DUE PROCESS ISSUE IS ENTANGLED WITH APPELLANT'S FAILURE TO FILE,
IN ITS REPORT, DATA COVERING ITS GROSS RECEIPTS ALLOCATED TO VIRGINIA. 
(FN4)  FAILING TO DO THIS THE STATE CORPORATION COMMISSION USED A
FORMULA WHICH IN EFFECT ASCRIBED TO VIRGINIA THE PROPORTION OF SUCH
RECEIPTS AS THE MILEAGE OF CARRIERS WITHIN VIRGINIA BORE TO THE TOTAL
NATIONAL MILEAGE OF THE SAME LINES.  (FN5)  APPELLANT CONTENDS THAT THE
ASSESSMENT MADE IN THIS MANNER IS VIOLATIVE OF DUE PROCESS AND THAT THE
RESULTING AMOUNT OF TAX LEVIED WAS CONFISCATORY. 

IN ANY EVENT, APPELLANT ARGUES, THE "IN LIEU" PROVISIONS OF THE LAW,
AS APPLIED TO IT, ARE INVALID.  ADMITTING THAT IT HAD CASH, INTANGIBLES
AND ROLLING STOCK THAT WERE SUBJECT TO A STATE TAX BUT WHICH SUFFERED
NONE BECAUSE OF THE "IN LIEU" PROVISIONS OF THIS LAW, IT CONTENDS THAT
THE TAX ASSESSED UNDER THE LATTER WAS NO JUST EQUIVALENT OF THE "IN
LIEU" TAXES BUT WAS GREATLY IN EXCESS THEREOF AND VIOLATIVE OF DUE
PROCESS. 

   VALIDITY OF THE LAW UNDER THE COMMERCE CLAUSE. 

AS WE HAVE POINTED OUT, THE STATUTE LEVIES A FRANCHISE TAX IN LIEU OF
ALL TAXES ON "OTHER INTANGIBLE PROPERTY" AND ROLLING STOCK.  THIS
LEAVES NO ROOM FOR DOUBT THAT THE GENERAL ASSEMBLY INTENDED TO LEVY A
TAX UPON APPELLANT'S INTANGIBLES.  MOREOVER, SUPPORTING THIS
INTERPRETATION, BOTH THE STATE COMMISSION AND THE SUPREME COURT OF
APPEALS HAVE CONSTRUED IT AS A TAX ON APPELLANT'S INTANGIBLE PROPERTY
AND "GOING CONCERN" VALUE.  THIS TRINITY OF AGREEMENT BY THREE STATE
AGENCIES, THOUGH NOT CONCLUSIVE, HAS GREAT WEIGHT IN OUR DETERMINATION
OF THE NATURAL AND REASONABLE EFFECT OF THE STATUTE.  RAILWAY EXPRESS
V. VIRGINIA, SUPRA; SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602
(1951); CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450 (1918); UNITED
STATES EXPRESS CO. V. MINNESOTA, 223 U.S. 335, 346 (1912).  THIS IS NOT
TO SAY THAT A LEGISLATURE MAY EFFECT A VALIDATION OF A TAX, OTHERWISE
UNCONSTITUTIONAL, BY MERELY CHANGING ITS DESCRIPTIVE WORDS.  LAWRENCE
V. STATE TAX COMMISSION, 286 U.S. 276, 280 (1932); GALVESTON, H. & SAN
ANTONIO R. CO. V. TEXAS, 210 U.S. 217, 227 (1908).  ONE MUST
COMPREHEND, HOWEVER, THE DIFFERENCE BETWEEN THE USE OF MAGIC WORDS OR
LABELS VALIDATING AN OTHERWISE INVALID TAX AND THEIR USE TO DISABLE AN
OTHERWISE CONSTITUTIONAL LEVY.  THE LATTER THIS COURT HAS SAID MAY
SOMETIMES BE DONE.  RAILWAY EXPRESS AGENCY V. VIRGINIA, SUPRA, AT 364;
SPECTOR MOTOR SERVICE V. O'CONNOR, SUPRA, AT 607; MCLEOD V. DILWORTH
CO., 322 U.S. 327, 330 (1944). 

APPELLANT BUTTRESSES ITS ARGUMENT WITH REASONING THAT A TAX ON "GOING
CONCERN" VALUE JUST CANNOT BE MEASURED BY FAIRLY APPORTIONED GROSS
RECEIPTS.  WHILE IT MAY BE TRUE THAT GROSS RECEIPTS ARE NOT THE BEST
MEASURE, IT IS TOO LATE NOW TO QUESTION ITS CONSTITUTIONALITY. 
ILLINOIS CENT. R. CO. V. MINNESOTA, 309 U.S. 157 (1940); GREAT NORTHERN
R. CO. V. MINNESOTA, 278 U.S. 503 (1929); PULLMAN CO. V. RICHARDSON,
261 U.S. 330 (1923); CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450
(1918); UNITED STATES EXPRESS CO. V. MINNESOTA, 223 U.S. 335 (1912);
WISCONSIN & M.R. CO. V. POWERS, 191 U.S. 379 (1903).  THESE DECISIONS
ARE STILL IN GOOD STANDING ON OUR BOOKS.  EVEN ON THE FORMER APPEAL
THIS COURT USED THE FOLLOWING LANGUAGE: 

"OF COURSE, WE HAVE HELD, AND IT BUT COMMON SENSE TO HOLD, THAT A
PHYSICAL ASSET MAY FLUCTUATE IN VALUE ACCORDING TO THE INCOME IT CAN BE
MADE TO PRODUCE.  A LIVE HORSE IS WORTH MORE THAN A DEAD ONE, THOUGH
THE PHYSICAL OBJECT MAY BE THE SAME, AND A SMOOTH-GOING AUTOMOBILE IS
WORTH MORE THAN AN UNASSEMBLED COLLECTION OF ALL ITS PARTS.  THE
PHYSICAL FACILITIES USED IN CARRYING ON A PROSPEROUS BUSINESS ARE WORTH
MORE THAN THE SAME ASSETS IN BANKRUPTCY LIQUIDATION OR ON SALE BY THE
SHERIFF.  NO ONE DENIES THE RIGHT OF THE STATE, WHEN ASSESSING TANGIBLE
PROPERTY, TO USE ANY FAIR FORMULA WHICH WILL GIVE EFFECT TO THE
INTANGIBLE FACTORS WHICH INFLUENCE REAL VALUES.  ADAMS EXPRESS CO. V.
OHIO STATE AUDITOR, (FN6) 166 U.S. 185.  BUT VIRGINIA HAS NOT DONE
THIS."  347 U.S., AT 364. 

WE FEEL THAT VIRGINIA HAS NOW DONE JUST THAT. 

WE ARE NOT CONVINCED BY APPELLANT'S "BOOT STRAP" ARGUMENT THAT THE
EXPRESS PRIVILEGES IT ENJOYS HAVE NO VALUE TO IT BECAUSE ALL OF ITS NET
INCOME BY AGREEMENT WITH THE RAILROADS IS PAID OVER TO THEM.  WE
BELIEVE IT MORE ACCURATE TO RELY ON ITS ADMISSION THAT "NO ONE WOULD
QUESTION THE FACT THAT APPELLANT'S EXCLUSIVE EXPRESS PRIVILEGES ON THE
RAILROADS ARE VALUABLE CONTRACT RIGHTS."  THIS CONCESSION, WHEN TAKEN
IN THE LIGHT OF THE EXPRESSED PURPOSE OF APPELLANT THAT THE PAYMENT OF
ITS NET INCOME FOR THE USE OF THE EXPRESS PRIVILEGES WAS SOLELY TO MAKE
CERTAIN "THAT THE EXPRESS COMPANY SHALL HAVE NO NET TAXABLE INCOME,"
EXPOSES THE FRIVOLOUS NATURE OF THIS CONTENTION.  WE ARE NOT SO BLINDED
TO BUSINESS REALITIES AS TO PERMIT SUCH A MANIPULATION OF THE FINANCES
OF APPELLANT, THE RAILROADS' WHOLLY OWNED SUBSIDIARY, TO FRUSTRATE THE
COMMONWEALTH IN ITS EFFORT TO COLLECT AN OTHERWISE FAIR TAX. 

NOR IS THERE ANY SUBSTANCE TO THE CONTENTION THAT SINCE VIRGINIA
COULD NOT PROHIBIT APPELLANT FROM ENGAGING IN ITS EXCLUSIVELY
INTERSTATE BUSINESS, IT THEREFORE MAY NOT TAX "GOOD WILL" OR "GOING
CONCERN" VALUE WHICH IS BUILT UP THEREBY.  WE NEED ONLY CITE SOME OF
THE CASES OF THIS COURT HOLDING TO THE CONTRARY:  GREAT NORTHERN R. CO.
V. MINNESOTA, 278 U.S. 503 (1929); PULLMAN CO. V. RICHARDSON, 261 U.S.
330 (1923); CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450 (1918);
UNITED STATES EXPRESS CO. V. MINNESOTA, 223 U.S. 335 (1912); ADAMS
EXPRESS CO. V. OHIO, 165 U.S. 194 (REHEARING 166 U.S. 185 (1897));
WESTERN UNION TELEGRAPH CO. V. TAGGART, 163 U.S. 1 (1896); CLEVELAND,
C., C. & ST. L.R. CO. V. BACKUS, 154 U.S. 439 (1894). 

                VALIDITY OF THE TAX UNDER THE DUE PROCESS CLAUSE. 

IN VIEW OF THE FACT THAT APPELLANT FAILED TO FILE THE REQUIRED
INFORMATION AS TO ITS GROSS RECEIPTS, THUS PLACING AN ALMOST
INSURMOUNTABLE BURDEN ON THE COMMONWEALTH TO ASCERTAIN THEM, IT IS
NECESSARY THAT APPELLANT MAKE AN AFFIRMATIVE SHOWING THAT THE MILEAGE
METHOD USED BY VIRGINIA IS SO PALPABLY UNREASONABLE THAT IT VIOLATES
DUE PROCESS.  THIS IT HAS FAILED TO DO.  APPELLANT RESTS ITS ARGUMENT
NOT ON FACTS AND FIGURES COVERING ITS ACTUAL GROSS INCOME IN VIRGINIA
BUT ON COMPARATIVE STATISTICS BASED ON TANGIBLE ASSETS.  IT POINTS OUT
THAT DURING THE TAXABLE YEAR THE VALUE OF ITS TANGIBLE ASSETS IN
VIRGINIA ($475,065) WAS ONLY 0.6% OF ITS TOTAL ASSETS ($79,700,426),
WHILE THE AMOUNT OF GROSS RECEIPTS APPORTIONED TO VIRGINIA BY THE STATE
CORPORATION COMMISSION WAS 1.7% ($6,499,519) OF ITS TOTAL GROSS
RECEIPTS ($387,241,764).    THE DIFFERENCE IN THE TWO PERCENTAGES,
APPELLANT CONTENDS, MUST REPRESENT INTANGIBLE VALUES ON WHICH VIRGINIA
CANNOT OPERATE BECAUSE LOCATED OUTSIDE OF ITS JURISDICTION.  THIS
SYLLOGISM DOES NOT TAKE INTO ACCOUNT THE FACTS OF BUSINESS LIFE. 
TANGIBLE ASSETS IN VIRGINIA MAY PRODUCE MUCH MORE INCOME THAN LIKE
ASSETS ELSEWHERE.  DEATH VALLEY SCOTTY GENERATED MUCH LESS GROSS FROM
HIS DESERT SIGHTSEEING WAGON THAN DID HIS COUNTERPART IN CENTRAL PARK. 
THE UTTER FALLACY OF USING TANGIBLE ASSETS AS THE TEST OF GOING-CONCERN
VALUE HERE IS DEMONSTRATED BY THE FACT THAT APPELLANT'S TANGIBLE ASSETS
IN VIRGINIA DEPEND ENTIRELY ON WHETHER IT ELECTS TO RETAIN TITLE TO
TANGIBLE PROPERTY OR PLACE IT IN THE NAME OF ITS SUBSIDIARY, THE
VIRGINIA COMPANY.  BY PLACING THEM IN THE VIRGINIA COMPANY IT COULD
THUS, ON A TANGIBLE ASSET FORMULA, ESCAPE ALL TAX ON ITS INTANGIBLES. 

THERE IS NOTHING IN THE RECORD EVEN TO INDICATE THAT THE TANGIBLE
ASSETS THAT APPELLANT CARRIES IN ITS OWN NAME IN VIRGINIA DID NOT
ACTUALLY GENERATE THE AMOUNT OF GROSS RECEIPTS ATTRIBUTED TO IT BY THE
STATE CORPORATION COMMISSION.  IN THIS CONNECTION, WE NOTE THAT 1.9% OF
APPELLANT'S TOTAL CONTRACT MILEAGE WAS LOCATED THERE.  EVEN WHERE
TAXPAYERS HAVE ATTEMPTED TO SHOW THROUGH EVIDENCE, AS THIS APPELLANT
HAS NOT, THAT A GIVEN APPORTIONMENT FORMULA EFFECTED AN APPROPRIATION
OF MORE THAN THAT TO WHICH THE STATE WAS ENTITLED, THIS COURT HAS
REQUIRED "'CLEAR AND COGENT EVIDENCE' THAT IT RESULTS IN
EXTRATERRITORIAL VALUES BEING TAXED."  BUTLER BROS. V. MCCOLGAN, 315
U.S. 501, 507 (1942); NORFOLK & WESTERN R. CO. V. NORTH CAROLINA, 297
U.S. 682, 688 (1936); CF. BASS, RATCLIFF & GRETTON, LTD., V. TAX
COMM'N, 266 U.S. 271, 282-284 (1924).  AS THIS COURT SAID IN NASHVILLE,
C. & ST. L.R.  V. BROWNING, 310 U.S. 362, 365-366 (1940): 

"IN BASING ITS APPORTIONMENT ON MILEAGE, THE TENNESSEE COMMISSION
ADOPTED A FAMILIAR AND FREQUENTLY SANCTIONED FORMULA.  PULLMAN'S CAR
CO. V. PENNSYLVANIA, 141 U.S. 18; MAINE V. GRAND TRUNK RY. CO., 142
U.S. 217; PITTSBURGH, C., C. & ST. L. RY. CO. V. BACKUS, 154 U.S. 421;
BRANSON V. BUSH, 251 U.S. 182.  SEE 2 COOLEY ON TAXATION, PP. 1660-64. 
ITS ASSERTED INAPPLICABILITY TO THE PARTICULAR SITUATION IS RESTED ON
PETITIONER'S EVIDENCE AS TO THE COMPARATIVE REVENUE-PRODUCING CAPACITY
OF ITS LINES IN AND OUT OF TENNESSEE.  BUT BOTH THE COMMISSION AND THE
SUPREME COURT OF THE STATE THOUGHT THAT THIS EVIDENCE, HOWEVER WEIGHTY,
WAS INSUFFICIENT TO DISPLACE THE RELEVANCE OF THE FORMULA.  IN A MATTER
WHERE EXACTNESS IS CONCEDEDLY UNOBTAINABLE AND THE FEEL OF JUDGMENT SO
IMPORTANT A FACTOR, WE MUST BE ON GUARD LEST UNWITTINGLY WE DISPLACE
THE TAX OFFICIALS' JUDGMENT WITH OUR OWN.  CERTAINLY WE CANNOT SAY THAT
THE COMBINED JUDGMENT OF COMMISSION, BOARD, AND STATE COURTS IS
BASELESS." 

APPELLANT'S FINAL ARGUMENT IS TO THE EFFECT THAT THE TAX IN QUESTION,
IN THE AMOUNT OF $139,739.66, IS "NO JUST EQUIVALENT" OF THE TAX "IN
LIEU OF WHICH" IT WAS LEVIED, AND THEREFORE VIOLATES THE DUE PROCESS
CLAUSE.  THIS ARGUMENT IS BASED UPON A FALSE PREMISE WHICH CAN BE
QUICKLY DISPOSED OF.  APPELLANT STATES THAT UNDER VIRGINIA'S SYSTEM OF
SEGREGATION OF PROPERTY FOR STATE AND LOCAL TAXATION THE ONLY PROPERTY
WHICH THE COMMONWEALTH HAD THE POWER TO TAX WAS CASH ON HAND AND ON
DEPOSIT AND APPELLANT'S ROLLING STOCK, WHICH, UNDER THE OLD RATES,
WOULD HAVE YIELDED A TAX OF $679.77.  APPELLANT IS CLEARLY IN ERROR. 
AS WE READ THE VIRGINIA STATUTES, AND AS THEY WERE CONSTRUED BELOW, THE
COMMONWEALTH (AS CONTRASTED WITH THE LOCAL) GOVERNMENT ALSO HAD THE
POWER TO TAX THE "GOING CONCERN" VALUE OF ALL OF APPELLANT'S VIRGINIA
PROPERTY, AS WELL AS ITS OTHER INTANGIBLE PROPERTY RIGHTS SUCH AS ITS
VALUABLE EXPRESS PRIVILEGES.  THUS, THE NEW TAX IS NOT ONLY IN LIEU OF
THE PREVIOUS TAX ON ROLLING STOCK AND CASH ON HAND, BUT ALSO REACHES
INTANGIBLE RIGHTS OF GREAT VALUE WHICH SINCE RAILWAY EXPRESS, SUPRA,
HAD ESCAPED TAXATION ALTOGETHER. 

IT FOLLOWS FROM WHAT WE HAVE SAID THAT THE TAX IS VALID, AND THE
JUDGMENT BELOW IS THEREFORE AFFIRMED. 

FN1  VA. CODE, 1950, SEC. 58-547. 

FN2  SEE VA. CONST., SEC. 170; AND VA. CODE, 1950, SECS. 58-9, 58
10. 

FN3  VA. CODE, 1950, SEC. 58-546, ET SEQ., AS AMENDED BY VA. ACTS
1956, C. 612. 

FN4  IN ITS RETURN, APPELLANT STATED THAT IT WAS "UNABLE" TO
ASCERTAIN ITS GROSS RECEIPTS FROM EXPRESS TRANSPORTED "THROUGH, INTO OR
OUT OF" THE COMMONWEALTH.  THE RECORD CONTAINS TESTIMONY TO THIS EFFECT
BY ONE OF APPELLANT'S OFFICERS.  THE RECORD ALSO SHOWS, FROM ONE OF
APPELLANT'S OWN EXHIBITS, THAT SINCE 1931 THE TAX YEAR IN QUESTION IS
THE ONLY YEAR IN WHICH APPELLANT HAS BEEN "UNABLE" TO REPORT THIS
INFORMATION.  FROM 1931 TO 1953, APPELLANT MANAGED TO FIND A WAY OF
COMPILING OR COMPUTING AND REPORTING SUCH DATA, AND IN ONLY 7 OF THESE
23 YEARS DID THE COMMONWEALTH DISAGREE WITH APPELLANT'S FIGURES.  DUE
TO THE DOWNFALL OF THE OLD TAX IN RAILWAY EXPRESS AGENCY V. VIRGINIA,
SUPRA, THERE WAS NO REPORTING REQUIREMENT FOR 1954 AND 1955.  UNDER THE
NEW TAX, FOR 1956, APPELLANT MADE NO ATTEMPT TO PRESENT EVIDENCE TO
SHOW WHAT REDUCTIONS SHOULD BE MADE IN THE COMMISSION'S FIGURES, NOR
DID IT EXPLORE THE POSSIBILITY OF AN AGREEMENT ABOUT IT AS IT
APPARENTLY HAD IN PRIOR YEARS.  CF. COHAN V. COMMISSIONER OF INTERNAL
REVENUE (C.A.2D CIR. 1930), 39 F.2D 540, 543-544.  INSTEAD, IT RELIED
COMPLETELY UPON ITS CLAIM THAT THE TAX WAS UNCONSTITUTIONAL. 

FN5  ACTUALLY, THE AMOUNTS PAID TO SUCH CARRIERS FOR VIRGINIA TRAFFIC
WERE ASCERTAINED BY THAT METHOD.  SINCE THE CARRIER PAYMENTS REPRESENT
ONLY NET RECEIPTS, THE VIRGINIA GROSS RECEIPTS WERE DETERMINED BY
APPLYING TO THE VIRGINIA CARRIER PAYMENTS THE RATIO THAT ITS TOTAL
GROSS RECEIPTS BORE TO ITS TOTAL CARRIER PAYMENTS. 

FN6  PARENTHETICALLY, IT MIGHT BE NOTED THAT THE ADAMS CASE INVOLVED
A "GOING CONCERN" VALUATION OF $488,265 AS COMPARED TO A "DEAD"
VALUATION OF PROPERTY IN THE AMOUNT OF $28,438.  165 U.S. 194, 237. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN, CONCURRING. 

I SHARE THE RESERVATIONS OF MR. JUSTICE BRENNAN AS TO THE PROPRIETY
OF CONSIDERING THE TAX DESCRIBED IN THE OPINION OF THE COURT AS A
PROPERTY TAX.  I FIND MYSELF UNABLE, HOWEVER, TO DISTINGUISH IN ANY
CONSTITUTIONAL SENSE THE "IN LIEU" TAX HERE INVOLVED FROM SIMILAR
LEVIES THE VALIDITY OF WHICH HAS BEEN SUSTAINED AS APPLIED TO
INTERSTATE ENTERPRISES IN THE LINE OF CASES CITED IN THE COURT'S
OPINION, AND THEREFORE JOIN THE OPINION. 

MR. JUSTICE BRENNAN, CONCURRING. 

WHILE I JOIN THE OPINION AND JUDGMENT OF THE COURT, I MUST ADMIT TO
SOME RESERVATIONS WHETHER THE TAX AT BAR CAN FAIRLY BE THOUGHT OF AS A
PROPERTY TAX.  THE DISCUSSION OF THE COURT IN THIS CASE'S PREDECESSOR,
RAILWAY EXPRESS AGENCY, INC., V. VIRGINIA, 347 U.S. 359, 364-367, CAST
SERIOUS DOUBT ON THE PROPRIETY OF VIEWING VIRGINIA'S FORMER TAX AS A
PROPERTY TAX, AND I SHARE THAT DOUBT.  THE ONLY MODIFICATION IN THE
MATHEMATICAL DEMONSTRATION OF THE PRIOR DECISION NECESSITATED BY THE
REVISION OF THE TAX STATUTE IS BROUGHT ABOUT BY THE NEW STATUTE'S
PROVISION THAT THE TAX IS IN LIEU OF OTHER TAXES ON THE APPELLANT'S
INTANGIBLE PROPERTY AND ROLLING STOCK.  IN PRACTICAL EFFECT, THIS MEANS
THAT PAYMENT OF THIS $139,739.66 TAX IS "IN LIEU" OF A 1/5% TAX ON
$120,110.70 OF CASH, AMOUNTING TO $240.22; A TAX, AMOUNTING TO $427.56,
ON THE VALUE, APPORTIONED TO THE STATE, OF THE APPELLANT'S REFRIGERATOR
CARS; AND A 2 1/2% TAX ON ITS TRUCKS,* VALUED AT $262,719, AMOUNTING TO
$6,567.98.  THESE TAXES, IN LIEU OF WHICH THE $139,739.66 TAX AT BAR IS
PAYABLE, AGGREGATE $7,235.76.  IT SEEMS TO ME DOUBTFUL WHETHER THIS
MAKES A SIGNIFICANT ALTERATION IN THE DEMONSTRATION THE COURT MADE ON
THE PRIOR APPEAL WITH RESPECT TO THE STATUS AS A PROPERTY TAX OF THE
GROSS RECEIPTS TAX ON EXPRESS COMPANIES.  WHILE THE TAX MAY BE A ROUGH
EQUIVALENT OF SOME SORT OF PROPERTY TAX THAT VIRGINIA MIGHT CONCEIVABLE
LEVY ON EXPRESS COMPANIES, I DO NOT SEE THAT IT HAS BEEN MADE CLEAR
THAT IT BEARS ANY EQUIVALENCE TO ANY SORT OF PROPERTY TAX THAT SHE IN
FACT LEVIES ON OTHER SORTS OF BUSINESSES OR HAS IN FACT PREVIOUSLY
LEVIED ON EXPRESS COMPANIES.  CF. PULLMAN CO. V. RICHARDSON, 261 U.S.
330, 339.  ON THE OTHER HAND, I CANNOT DENY THAT THIS COURT HAS, IN
DECISIONS CITED BY THE COURT'S OPINION, FREQUENTLY ADMITTED GROSS
RECEIPTS TAXES TO THE CHARACTERIZATION OF "PROPERTY TAXES" IN
SITUATIONS WHERE THEIR EQUIVALENCE WITH ANY ACTUAL PROPERTY TAX WAS
SOMEWHAT TENUOUS.  SEE, E.G., ILLINOIS CENTRAL R. CO. V. MINNESOTA, 309
U.S. 157. 

*THE STATE INFORMS US THAT THE APPELLANT'S TRUCKS HAVE BEEN RULED TO
BE "ROLLING STOCK" AND THEREFORE SHIELDED BY THE "IN LIEU" PROVISION OF
THE NEW STATUTE.  WHILE THE VIRGINIA CODE DOES NOT IN TERMS SET FORTH A
RATE OF TAXATION FOR THE ROLLING STOCK OF EXPRESS COMPANIES, THE RATES
PROVIDED FOR THE ROLLING STOCK OF RAILWAY AND OF FREIGHT CAR COMPANIES
ARE 2 1/2% AD VALOREM.  VA. CODE SECS. 58-515, 58-560.  THIS RATE WOULD
APPEAR APPROPRIATE FOR EXPLORING THE EQUIVALENCE OF THIS "IN LIEU" TAX
TO A CORRESPONDING PROPERTY TAX, AND IN FACT THE RATE, AS ESTABLISHED
BY THE LATTER SECTION, HAS BEEN USED BEFORE THE "IN LIEU" PROVISION AS
A BASIS FOR THE TAXATION OF APPELLANT'S REFRIGERATOR CARS. 

TO ME, THE MORE REALISTIC WAY OF VIEWING THE TAX AND EVALUATING ITS
CONSTITUTIONAL VALIDITY IS TO TAKE IT AS WHAT IT IS IN SUBSTANCE, A
LEVY ON GROSS RECEIPTS FAIRLY APPORTIONABLE TO THE TAXING STATE. 
VIRGINIA HAS A COMPREHENSIVE SCHEME OF STATE INCOME AND GROSS RECEIPTS
TAXES ON BUSINESS CORPORATIONS, WITH NET INCOME TAXES THE STANDARD IN
THE CASE OF ORDINARY BUSINESSES AND GROSS RECEIPTS TAXES IN THE CASE OF
MOST CATEGORIES OF UTILITY OR "PUBLIC SERVICE" CORPORATIONS.  THE GROSS
RECEIPTS TAXING STRUCTURE DOES NOT SINGLE OUT THIS INTERSTATE
TRANSPORTATION COMPANY, OR DISCRIMINATE AGAINST IT, BUT RATHER REQUIRES
IT ONLY TO PAY ITS SHARE, AT A TAX RATE COMPARABLE TO THE RATES ON THE
GROSS RECEIPTS OF OTHER CATEGORIES OF PUBLIC SERVICE CORPORATIONS, AND
IN FACT LOWER THAN THOSE ON MANY IMPORTANT ONES.  TO RESTRICT THE GROSS
RECEIPTS SUBJECT TO THE TAX TO AN AMOUNT REPRESENTING THAT PART OF
APPELLANT'S INTERSTATE MOVEMENTS WHICH TAKES PLACE WITHIN THE STATE,
THE STATE HAS EMPLOYED AN APPORTIONMENT FORMULA.  THAT FORMULA IS NOT
ON ITS FACE UNFAIR OR DISCRIMINATORY TOWARD INTERSTATE COMMERCE OR
INDICATIVE OF AN IMPOSITION ON OUT-OF-STATE ACTIVITIES, AND THE OPINION
OF THE COURT AMPLY DEMONSTRATES THAT THIS APPELLANT CANNOT MAINTAIN A
CHALLENGE TO THE DETAILS OF ITS APPLICATION HERE.  THE LABEL OF THE TAX
AS A "PRIVILEGE" OR "LICENSE" TAX, PROSCRIBED BY THIS CASE'S
PREDECESSOR, HAS BEEN ELIMINATED, AS THE COURT'S OPINION SHOWS.  THIS
COURT'S DECISIONS SUSTAIN THE APPLICATION OF A FAIRLY APPORTIONED
GENERAL GROSS RECEIPTS TAX TO AN INTERSTATE TRANSPORTATION COMPANY. 
CANTON R. CO. V. ROGAN, 340 U.S. 511, 515-516; CENTRAL GREYHOUND LINES,
INC., V. MEALEY, 334 U.S. 653, 663-664.  CF. WESTERN LIVE STOCK V.
BUREAU OF REVENUE, 303 U.S. 250, 256.  IN MY VIEW, THE MOST COMPELLING
REASON FOR AFFIRMING THE JUDGMENT OF THE SUPREME COURT OF APPEALS OF
VIRGINIA IS THE APPLICATION OF THE PRINCIPLES OF THESE CASES HERE. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE STEWART JOINS,
DISSENTING. 

I CANNOT AGREE.  LET ME VERY BRIEFLY PUT THE CASE IN PERSPECTIVE, AS
I SEE IT.  TAXATION OF THE PROPERTY OF APPELLANT'S VIRGINIA SUBSIDIARY,
WHICH DOES AN INTRASTATE BUSINESS IN VIRGINIA, IS NOT AT ALL INVOLVED
HERE.  THE COURT PROPERLY OBSERVES THE FACT THAT "APPELLANT'S VIRGINIA
BUSINESS IS ...  OF AN EXCLUSIVELY INTERSTATE NATURE."  IN THE YEAR
INVOLVED IT OWNED IN VIRGINIA TANGIBLE REAL AND PERSONAL PROPERTY WHICH
WAS TAXED IN VIRGINIA UNDER OTHER STATUTES AND IS NOT INVOLVED IN THIS
CASE.  VIRGINIA ALSO CLAIMS THAT APPELLANT HAD INTANGIBLE PROPERTY IN
VIRGINIA.  IT IS UPON THOSE INTANGIBLES, SO CLAIMED TO HAVE BEEN
PRESENT IN THE STATE, THAT VIRGINIA SOUGHT TO LAY ITS "FRANCHISE TAX"
SAID BY IT TO BE A "PROPERTY TAX" MEASURED BY APPELLANT'S GROSS
RECEIPTS, ALLOCABLE TO VIRGINIA, FROM "EXCLUSIVELY" INTERSTATE
COMMERCE.  ADMITTEDLY APPELLANT HAD A BANK ACCOUNT AND SOME "ROLLING
STOCK" IN VIRGINIA, UPON WHICH, DOUBTLESS, VIRGINIA VALIDLY COULD LAY
AN AD VALOREM TAX.  BUT THE DISPUTE IS OVER THE FOLLOWING.  VIRGINIA
CLAIMS THAT APPELLANT SHOULD BE DEEMED TO HAVE HAD IN VIRGINIA, AND
SUBJECT TO THE TAXING STATUTE HERE INVOLVED, SUBSTANTIALLY THAT
PERCENTAGE OF THE VALUE OF ITS NATIONAL "GOOD WILL," AND OF ITS
EXCLUSIVE EXPRESS CARRIAGE CONTRACT WITH THE RAILROADS, WHICH THE RATIO
OF THE MILEAGE OF CARRIERS WHICH IT USES IN INTERSTATE COMMERCE IN
VIRGINIA BEARS TO THE TOTAL MILEAGE OF THE SAME CARRIERS WHICH IT USES
EVERYWHERE IN SUCH COMMERCE.  APPELLANT CONTENDS THAT VIRGINIA'S CLAIM
IN THESE RESPECTS IS UNCONSTITUTIONAL.  WHICH OF THEM IS RIGHT?  I
THINK IT IS APPELLANT.  I THINK SO FOR TWO REASONS.  FIRST, THE
EXCLUSIVE CARRIAGE CONTRACT WHICH APPELLANT HAS WITH THE RAILROADS
REQUIRES IT, AS THE COURT OBSERVES, TO PAY "ALL OF ITS NET INCOME" TO
THE RAILROADS.  THEREFORE, AS A MATTER OF BOTH FACT AND LAW, THAT
CONTRACT CAN HAVE NO DOLLAR VALUE TO APPELLANT, DISTINGUISHED FROM THE
RAILROADS, TO BE TAXED TO IT ANYWHERE.  SECOND, APPELLANT'S "GOOD
WILL," IF ANY, DOES NOT CONSIST OF ANYTHING LOCALIZED IN VIRGINIA, BUT
INHERES SOLELY IN ITS "EXCLUSIVELY" INTERSTATE BUSINESS - A BUSINESS
THAT VIRGINIA CANNOT REACH OR REGULATE, BY DIRECT TAXATION OR
OTHERWISE, BECAUSE IT IS PROHIBITED FROM DOING SO BY THE COMMERCE
CLAUSE OF THE CONSTITUTION, ART. I, SEC. 8, CL. 3.  MY VIEWS ON THAT
SUBJECT ARE FULLY STATED IN MY DISSENTING OPINION IN NO. 12,
NORTHWESTERN STATES PORTLAND CEMENT CO. V. MINNESOTA, AND NO. 33,
WILLIAMS V. STOCKHAM VALVES & FITTINGS, INC., POST, AT P. 477.  I WOULD
THEREFORE REVERSE THE JUDGMENT OF THE SUPREME COURT OF APPEALS OF
VIRGINIA. 
..END :














NORTHWESTERN STATES PORTLAND CEMENT CO. V. MINNESOTA 358 U.S. 450 


NO. 12.  ARGUED OCTOBER 14, 1958.  - DECIDED FEBRUARY 24, 1959.* - 250
MINN. 32, 84 N.W.2D 373, AFFIRMED.  - 213 GA. 713, 101 S.E.2D 197,
REVERSED. 

*TOGETHER WITH NO. 33, WILLIAMS, STATE REVENUE COMMISSIONER, V.
STOCKHAM VALVES & FITTINGS, INC., ON CERTIORARI TO THE SUPREME COURT OF
GEORGIA, ARGUED OCTOBER 14-15, 1958. 


1.  NET INCOME FROM THE EXCLUSIVELY INTERSTATE OPERATIONS OF A FOREIGN
CORPORATION MAY BE SUBJECTED TO STATE TAXATION, PROVIDED THE LEVY IS
NOT DISCRIMINATORY AND IS PROPERLY APPORTIONED TO LOCAL ACTIVITIES
WITHIN THE TAXING STATE FORMING SUFFICIENT NEXUS TO SUPPORT THE SAME. 
PP. 452-465. 

2.  IN EACH OF THESE TWO CASES A STATE IMPOSED ON A FOREIGN
CORPORATION AN INCOME TAX COMPUTED AT A NON-DISCRIMINATORY RATE ON THAT
PORTION OF THE NET INCOME FROM THE CORPORATION'S INTERSTATE BUSINESS
WHICH WAS REASONABLY ATTRIBUTABLE TO ITS BUSINESS ACTIVITIES WITHIN THE
STATE.  IN EACH CASE THE CORPORATION HAD WITHIN THE TAXING STATE AN
OFFICE AND ONE OR MORE SALESMEN WHO ACTIVELY SOLICITED WITHIN THE STATE
ORDERS FOR THE PURCHASE OF THE CORPORATION'S PRODUCTS, WHICH ORDERS
WERE ACCEPTED AT, AND FILLED FROM, THE CORPORATION'S HEAD OFFICE IN
ANOTHER STATE.  IN NEITHER CASE WAS ANY QUESTION RAISED AS TO THE
REASONABLENESS OF THE APPORTIONMENT OF NET INCOME NOR AS TO THE AMOUNT
OF THE FINAL ASSESSMENT MADE.  HELD: THESE TAXES DID NOT VIOLATE EITHER
THE COMMERCE CLAUSE OR THE DUE PROCESS CLAUSE OF THE FEDERAL
CONSTITUTION.  PP. 452-465. 

(A)  THE ENTIRE NET INCOME OF A CORPORATION, GENERATED BY INTERSTATE
AS WELL AS INTRASTATE ACTIVITIES, MAY BE FAIRLY APPORTIONED AMONG THE
STATES FOR TAX PURPOSES BY FORMULAS UTILIZING IN-STATE ASPECTS OF
INTERSTATE AFFAIRS.  PP. 459-461. 

(B)  THE STATE TAXES HERE INVOLVED ARE NOT REGULATIONS OF INTERSTATE
COMMERCE IN ANY SENSE OF THAT TERM; THEY DO NOT DISCRIMINATE AGAINST OR
SUBJECT INTERSTATE COMMERCE TO AN UNDUE BURDEN; AND THEY ARE NOT LEVIED
ON THE PRIVILEGE OF ENGAGING IN INTERSTATE COMMERCE.  PP. 461-462. 

(C)  THERE IS NO SHOWING HERE THAT THE FORMULA APPLIED BY THE STATE
IN DETERMINING THE PORTION OF THE TAXPAYER'S TOTAL INCOME ATTRIBUTABLE
TO ACTIVITIES WITHIN THE STATE WILL SUBJECT INTERSTATE COMMERCE TO
MULTIPLE TAXATION OR REQUIRE IT TO BEAR MORE THAN ITS FAIR SHARE OF THE
TAX BURDEN.  PP. 462-463. 

(D)  SINCE EACH OF THE TAXES HERE INVOLVED IS BASED ONLY UPON THE NET
PROFITS EARNED WITHIN THE TAXING STATE, THE STATE HAS UTILIZED A VALID
"CONSTITUTIONAL CHANNEL" TO "MAKE INTERSTATE COMMERCE PAY ITS WAY." 
SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602, DISTINGUISHED.  PP.
463-464. 

(E)  THE TAXES HERE INVOLVED DO NOT VIOLATE THE DUE PROCESS CLAUSE,
SINCE THEY ARE LEVIED ONLY ON THAT PORTION OF THE TAXPAYER'S NET INCOME
WHICH ARISES FROM ITS ACTIVITIES WITHIN THE TAXING STATE AND THOSE
ACTIVITIES FORM A SUFFICIENT "NEXUS" TO SATISFY DUE PROCESS
REQUIREMENTS.  PP. 464-465. 

NORTHWESTERN STATES PORTLAND CEMENT CO. V. MINNESOTA. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE CASES CONCERN THE CONSTITUTIONALITY OF STATE NET INCOME TAX
LAWS LEVYING TAXES ON THAT PORTION OF A FOREIGN CORPORATION'S NET
INCOME EARNED FROM AND FAIRLY APPORTIONED TO BUSINESS ACTIVITIES WITHIN
THE TAXING STATE WHEN THOSE ACTIVITIES ARE EXCLUSIVELY IN FURTHERANCE
OF INTERSTATE COMMERCE.  NO QUESTION IS RAISED IN EITHER CASE AS TO THE
REASONABLENESS OF THE APPORTIONMENT OF NET INCOME UNDER THE STATE'S
FORMULAS NOR TO THE AMOUNT OF THE FINAL ASSESSMENT MADE.  THE MINNESOTA
TAX WAS UPHELD BY ITS SUPREME COURT, 250 MINN. 32, 84 N.W.2D 373, WHILE
THE SUPREME COURT OF GEORGIA INVALIDATED ITS STATUTE AS BEING VIOLATIVE
OF "BOTH THE COMMERCE AND DUE-PROCESS CLAUSES OF THE FEDERAL
CONSTITUTION  ...  ."  213 GA. 713, 721, 101 S.E.2D 197, 202.  THE
IMPORTANCE OF THE QUESTION IN THE FIELD OF STATE TAXATION IS INDICATED
BY THE FACT THAT THIRTY-FIVE STATES IMPOSE DIRECT NET INCOME TAXES ON
CORPORATIONS.  THEREFORE, WE NOTED JURISDICTION OF THE APPEAL IN THE
MINNESOTA CASE, 355 U.S. 911 (1958), AND GRANTED CERTIORARI IN THE
OTHER, 356 U.S. 911 (1958).  ALTHOUGH THE CASES WERE SEPARATELY
BRIEFED, ARGUED, AND SUBMITTED, WE HAVE, BECAUSE OF THE SIMILARITY OF
THE TAX IN EACH CASE, CONSOLIDATED THEM FOR THE PURPOSES OF DECISION. 
IT IS CONTENDED THAT EACH OF THE STATE STATUTES, AS APPLIED, VIOLATES
BOTH THE DUE PROCESS AND THE COMMERCE CLAUSES OF THE UNITED STATES
CONSTITUTION.  WE CONCLUDE THAT NET INCOME FROM THE INTERSTATE
OPERATIONS OF A FOREIGN CORPORATION MAY BE SUBJECTED TO STATE TAXATION
PROVIDED THE LEVY IS NOT DISCRIMINATORY AND IS PROPERLY APPORTIONED TO
LOCAL ACTIVITIES WITHIN THE TAXING STATE FORMING SUFFICIENT NEXUS TO
SUPPORT THE SAME. 

NO. 12.  - NORTHWESTERN STATES PORTLAND CEMENT CO. V. STATE OF
MINNESOTA. 

THIS IS AN APPEAL FROM JUDGMENTS OF MINNESOTA'S COURTS UPHOLDING THE
ASSESSMENT BY THE STATE OF INCOME TAXES FOR THE YEARS 1933 THROUGH 1948
AGAINST APPELLANT, AN IOWA CORPORATION ENGAGED IN THE MANUFACTURE AND
SALE OF CEMENT AT ITS PLANT IN MASON CITY, IOWA, SOME FORTY MILES FROM
THE MINNESOTA BORDER.  THE TAX WAS LEVIED UNDER SEC.  290.03 (FN1) OF
THE MINNESOTA STATUTES WHICH IMPOSES AN ANNUAL TAX UPON THE TAXABLE NET
INCOME OF RESIDENTS AND NONRESIDENTS ALIKE.  ONE OF FOUR CLASSES TAXED
BY THE STATUTE IS THAT OF "DOMESTIC AND FOREIGN CORPORATIONS  ...
WHOSE BUSINESS WITHIN THIS STATE DURING THE TAXABLE YEAR CONSISTS
EXCLUSIVELY OF FOREIGN COMMERCE, INTERSTATE COMMERCE, OR BOTH." 
MINNESOTA HAS UTILIZED THREE RATIOS IN DETERMINING THE PORTION OF NET
INCOME TAXABLE UNDER ITS LAW.  (FN2)  THE FIRST IS THAT OF THE
TAXPAYER'S SALES ASSIGNABLE TO MINNESOTA DURING THE YEAR TO ITS TOTAL
SALES DURING THAT PERIOD MADE EVERYWHERE; THE SECOND, THAT OF THE
TAXPAYER'S TOTAL TANGIBLE PROPERTY IN MINNESOTA FOR THE YEAR TO ITS
TOTAL TANGIBLE PROPERTY USED IN THE BUSINESS THAT YEAR WHEREVER
SITUATED.  THIRD IS THE TAXPAYER'S TOTAL PAYROLL IN MINNESOTA FOR THE
YEAR TO ITS TOTAL PAYROLL FOR ITS ENTIRE BUSINESS IN THE LIKE PERIOD. 
AS WE HAVE NOTED, APPELLANT TAKES NO ISSUE WITH THE FAIRNESS OF THIS
FORMULA NOR OF THE ACCURACY OF ITS APPLICATION HERE. 

APPELLANT'S ACTIVITIES IN MINNESOTA CONSISTED OF A REGULAR AND
SYSTEMATIC COURSE OF SOLICITATION OF ORDERS FOR THE SALE OF ITS
PRODUCTS, EACH ORDER BEING SUBJECT TO ACCEPTANCE, FILLING AND DELIVERY
BY IT FROM ITS PLANT AT MASON CITY.  IT SOLD ONLY TO ELIGIBLE DEALERS,
WHO WERE LUMBER AND BUILDING MATERIAL SUPPLY HOUSES, CONTRACTORS AND
READY-MIX COMPANIES.  A LIST OF THESE ELIGIBLE DEALERS WERE MAINTAINED
AND SALES WOULD NOT BE MADE TO THOSE NOT INCLUDED THEREON.  FORTY-EIGHT
PERCENT OF APPELLANT'S ENTIRE SALES WERE MADE IN THIS MANNER TO SUCH
DEALERS IN MINNESOTA.  FOR EFFICIENT HANDLING OF ITS ACTIVITY IN THAT
STATE, APPELLANT MAINTAINED IN MINNEAPOLIS A LEASED SALES OFFICE
EQUIPPED WITH ITS OWN FURNITURE AND FIXTURES AND UNDER THE SUPERVISION
OF AN EMPLOYEE-SALESMAN KNWON AS "DISTRICT MANAGER."  TWO SALESMEN,
INCLUDING THIS DISTRICT MANAGER, AND A SECRETARY OCCUPIED THIS THREE
ROOM OFFICE.  TWO ADDITIONAL SALESMEN USED IT AS A CLEARING HOUSE. 
EACH EMPLOYEE WAS PAID A STRAIGHT SALARY BY THE APPELLANT DIRECT FROM
MASON CITY AND TWO CARS WERE FURNISHED BY IT FOR THE SALESMEN. 
APPELLANT MAINTAINED NO BANK ACCOUNT IN MINNESOTA, OWNED NO REAL ESTATE
THERE, AND WAREHOUSED NO MERCHANDISE IN THE STATE.  ALL SALES WERE MADE
ON A DELIVERED PRICE BASIS FIXED BY THE APPELLANT IN MASON CITY AND NO
"PICK UPS" WERE PERMITTED AT ITS PLANT THERE.  THE SALESMEN, HOWEVER,
WERE AUTHORIZED TO QUOTE MINNESOTA CUSTOMERS A DELIVERED PRICE.  ORDERS
RECEIVED BY THE SALESMEN OR AT THE MINNEAPOLIS OFFICE WERE TRANSMITTED
DAILY TO APPELLANT IN MASON CITY, WERE APPROVED THERE, AND ACKNOWLEDGED
DIRECTLY TO THE PURCHASER WITH COPIES TO THE SALESMAN. 

IN ADDITION TO THE SOLICITATION OF APPROVED DEALERS, APPELLANT'S
SALESMEN ALSO CONTACTED POTENTIAL CUSTOMERS AND USERS OF CEMENT
PRODUCTS, SUCH AS BUILDERS, CONTRACTORS, ARCHITECTS, AND STATE, AS WELL
AS LOCAL GOVERNMENT PURCHASING AGENTS.  ORDERS WERE SOLICITED AND
RECEIVED FROM THEM, ON SPECIAL FORMS FURNISHED BY APPELLANT, DIRECTED
TO AN APPROVED LOCAL DEALER WHO IN TURN WOULD FILL THEM BY PLACING A
LIKE ORDER WITH APPELLANT.  THROUGH THIS SYSTEM APPELLANT'S SALESMEN
WOULD IN EFFECT SECURE ORDERS FOR LOCAL DEALERS WHICH IN TURN WERE
FILLED BY APPELLANT IN THE USUAL MANNER.  SALESMEN WOULD ALSO RECEIVE
AND TRANSMIT CLAIMS AGAINST APPELLANT FOR LOSS OR DAMAGE IN ANY
SHIPMENTS MADE BY IT, INFORMING THE COMPANY OF THE NATURE THEREOF AND
REQUESTING INSTRUCTIONS CONCERNING THE SAME. 

NO INCOME TAX RETURNS WERE FILED WITH THE STATE BY THE APPELLANT. 
THE ASSESSMENTS SUED UPON, AGGREGATING SOME $102,000, WITH PENALTIES
AND INTEREST, WERE MADE BY THE COMMISSIONER OF TAXATION ON THE BASIS OF
INFORMATION AVAILABLE TO HIM. 

N. 33.  - T.V. WILLIAMS, COMMISSIONER, V. STOCKHAM VALVES & FITTINGS,
INC. 

THE RESPONDENT HERE IS A DELAWARE CORPORATION WITH ITS PRINCIPAL
OFFICE AND PLANT IN BIRMINGHAM, ALABAMA.  IT MANUFACTURES AND SELLS
VALVES AND PIPE FITTINGS THROUGH ESTABLISHED LOCAL WHOLESALERS AND
JOBBERS WHO HANDLE PRODUCTS OTHER THAN RESPONDENT'S. THESE DEALERS WERE
ENCOURAGED BY RESPONDENT TO CARRY A LOCAL INVENTORY OF ITS PRODUCTS BY
GRANTING TO THOSE WHO DID SO A SPECIAL PRICE CONCESSION.  HOWEVER, THE
CORPORATION MAINTAINED NO WAREHOUSE OR STORAGE FACILITIES IN GOERGIA. 
IT DID MAINTAIN A SALES-SERVICE OFFICE IN ATLANTA, WHICH SERVED FIVE
STATES.  THIS OFFICE WAS HEADQUARTERS FOR ONE SALESMAN WHO DEVOTED
ABOUT ONE-THIRD OF HIS TIME TO SOLICITATION OF ORDERS IN GEORGIA.  HE
WAS PAID ON A SALARY-PLUS-COMMISSION BASIS WHILE A FULL-TIME WOMAN
SECRETARY EMPLOYED THERE RECEIVED A REGULAR SALARY ONLY.  SHE WAS "A
SOURCE OF INFORMATION" FOR RESPONDENT'S PRODUCTS, PERFORMED
STENOGRAPHIC AND CLERICAL SERVICES AND "FACILITATED COMMUNICATIONS
BETWEEN THE ...  HOME OFFICE IN BIRMINGHAM,  ...  THE SALES
REPRESENTATIVE  ...  AND CUSTOMERS, PROSPECTIVE CUSTOMERS, CONTRACTORS,
AND USERS OF ITS PRODUCTS."  RESPONDENT'S SALESMAN CARRIED ON THE USUAL
SALES ACTIVITIES, INCLUDING REGULAR SOLICITATION, RECEIPT AND
FORWARDING OF ORDERS TO THE BIRMINGHAM OFFICE AND THE PROMOTION OF
BUSINESS AND GOOD WILL FOR RESPONDENT.  ORDERS WERE TAKEN BY HIM, AS
WELL AS THE SALES-SERVICE OFFICE, SUBJECT TO APPROVAL OF THE HOME
OFFICE AND WERE SHIPPED FROM BIRMINGHAM DIRECT TO THE CUSTOMER ON AN
"F.O.B. WAREHOUSE" BASIS.  OTHER THAN OFFICE EQUIPMENT, SUPPLIES,
ADVERTISING LITERATURE AND THE LIKE, RESPONDENT HAD NO PROPERTY IN
GEORGIA, DEPOSITED NO FUNDS THERE AND STORED NO MERCHANDISE IN THE
STATE. 

GEORGIA LEVIES A TAX (FN3) ON NET INCOMES "RECEIVED BY EVERY
CORPORATION, FOREIGN OR DOMESTIC, OWNING PROPERTY OR DOING BUSINESS IN
THIS STATE."  (FN4)  THE ACT DEFINES THE LATTER AS INCLUDING "ANY
ACTIVITIES OR TRANSACTIONS" CARRIED ON WITHIN THE STATE "FOR THE
PURPOSE OF FINANCIAL PROFIT OR GAIN" REGARDLESS OF ITS CONNECTION WITH
INTERSTATE COMMERCE.  TO APPORTION NET INCOME, THE ACT APPLIES A THREE
FACTOR RATIO BASED ON INVENTORY, WAGES AND GROSS RECEIPTS.  UNDER THE
ACT THE STATE REVENUE COMMISSIONER ASSESSED AND COLLECTED A TOTAL OF
$1,478.31 FROM RESPONDENT FOR THE TAXABLE YEARS 1952, 1954, AND 1955,
AND AFTER CLAIMS FOR REFUND WERE DENIED THE RESPONDENT FILED THIS SUIT
TO RECOVER SUCH PAYMENTS.  IT BASES ITS RIGHT TO RECOVER SQUARELY UPON
THE CONSTITUTIONALITY OF GEORGIA'S ACT UNDER THE COMMERCE AND THE DUE
PROCESS CLAUSES OF THE CONSTITUTION OF THE UNITED STATES. 

THAT THERE IS A "NEED FOR CLEARING UP THE TANGLED UNDERBRUSH OF PAST
CASES" WITH REFERENCE TO THE TAXING POWER OF THE STATES IS A
CONCOMITANT TO THE NEGATIVE APPROACH RESULTING FROM A CASE-BY-CASE
RESOLUTION OF "THE EXTREMELY LIMITED RESTRICTIONS THAT THE CONSTITUTION
PLACES UPON THE STATES  ... ."  WISCONSIN V. J.C. PENNEY CO., 311 U.S.
435, 445 (1940).  COMMERCE BETWEEN THE STATES HAVING GROWN UP LIKE
TOPSY, THE CONGRESS MEANWHILE NOT HAVING UNDERTAKEN TO REGULATE
TAXATION OF IT, AND THE STATES HAVING UNDERSTANDABLY PERSISTED IN THEIR
EFFORTS TO GET SOME RETURN FOR THE SUBSTANTIAL BENEFITS THEY HAVE
AFFORDED IT, THERE IS LITTLE WONDER THAT THERE HAS BEEN NO END OF CASES
TESTING OUT STATE TAX LEVIES.  THE RESULTING JUDICIAL APPLICATION OF
CONSTITUTIONAL PRINCIPLES TO SPECIFIC STATE STATUTES LEAVES MUCH ROOM
FOR CONTROVERSY AND CONFUSION AND LITTLE IN THE WAY OF PRECISE GUIDES
TO THE STATES IN THE EXERCISE OF THEIR INDISPENSABLE POWER OF
TAXATION.  THIS COURT ALONE HAS HANDED DOWN SOME THREE HUNDRED FULL
DRESS OPINIONS SPREAD THROUGH SLIGHTLY MORE THAN THAT NUMBER OF OUR
REPORTS.  AS WAS SAID IN MILLER BROS. CO. V. MARYLAND, 347 U.S. 340,
344 (1954), THE DECISIONS HAVE BEEN "NOT ALWAYS CLEAR  ...  CONSISTENT
OR RECONCILABLE.  A FEW HAVE BEEN SPECIFICALLY OVERRULED, WHILE OTHERS
NO LONGER FULLY REPRESENT THE PRESENT STATE OF THE LAW."  FROM THE
QUAGMIRE THERE EMERGE, HOWEVER, SOME FIRM PEAKS OF DECISION WHICH
REMAIN UNQUESTIONED. 

IT HAS LONG BEEN ESTABLISHED DOCTRINE THAT THE COMMERCE CLAUSE GIVES
EXCLUSIVE POWER TO THE CONGRESS TO REGULATE INTERSTATE COMMERCE, AND
ITS FAILURE TO ACT ON THE SUBJECT IN THE AREA OF TAXATION NEVERTHELESS
REQUIRES THAT INTERSTATE COMMERCE SHALL BE FREE FROM ANY DIRECT
RESTRICTIONS OR IMPOSITIONS BY THE STATES.  GIBBONS V. OGDEN, 9 WHEAT. 
1 (1824).  IN KEEPING THEREWITH A STATE "CANNOT IMPOSE TAXES UPON
PERSONS PASSING THROUGH THE STATE, OR COMING INTO IT MERELY FOR A
TEMPORARY PURPOSE" SUCH AS ITINERANT DRUMMERS.  ROBBINS V. TAXING
DISTRICT, 120 U.S. 489, 493-494 (1887).  MOREOVER, IT IS BEYOND DISPUTE
THAT A STATE MAY NOT LAY A TAX ON THE "PRIVILEGE" OF ENGAGING IN
INTERSTATE COMMERCE, SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602
(1951).  NOR MAY A STATE IMPOSE A TAX WHICH DISCRIMINATES AGAINST
INTERSTATE COMMERCE EITHER BY PROVIDING A DIRECT COMMERCIAL ADVANTAGE
TO LOCAL BUSINESS, MEMPHIS STEAM LAUNDRY V. STONE, 342 U.S. 389 (1952);
NIPPERT V.  RICHMOND, 327 U.S. 416 (1946), OR BY SUBJECTING INTERSTATE
COMMERCE TO THE BURDEN OF "MULTIPLE TAXATION," MICHIGAN-WISCONSIN PIPE
LINE CO. V. CALVERT, 347 U.S. 157 (1954); ADAMS MFG. CO. V. STOREN, 304
U.S. 307 (1938).  SUCH IMPOSITIONS HAVE BEEN STRICKEN BECAUSE THE
STATES, UNDER THE COMMERCE CLAUSE, ARE NOT ALLOWED "ONE SINGLE-TAX
WORTH OF DIRECT INTERFERENCE WITH THE FREE FLOW OF COMMERCE."  FREEMAN
V. HEWIT, 329 U.S. 249, 256 (1946). 

ON THE OTHER HAND, IT HAS BEEN ESTABLISHED SINCE 1918 THAT A NET
INCOME TAX ON REVENUES DERIVED FROM INTERSTATE COMMERCE DOES NOT OFFEND
CONSTITUTIONAL LIMITATIONS UPON STATE INTERFERENCE WITH SUCH COMMERCE. 
THE DECISION OF PECK & CO. V. LOWE, 247 U.S. 165, POINTED THE WAY. 
THERE THE COURT HELD THAT THOUGH TRUE IT WAS THAT THE CONSTITUTION
PROVIDED "NO TAX OR DUTY SHALL BE LAID ON ARTICLES EXPORTED FROM ANY
STATE," ART. I, SEC. 9, STILL A NET INCOME TAX ON THE PROFITS DERIVED
FROM SUCH COMMERCE WAS NOT "LAID ON ARTICLES IN COURSE OF EXPORTATION
OR ON ANYTHING WHICH INHERENTLY OR BY THE USAGES OF COMMERCE IS
EMBRACED IN EXPORTATION OR ANY OF ITS PROCESSES  ...  . AT MOST,
EXPORTATION IS AFFECTED ONLY INDIRECTLY AND REMOTELY."  ID., AT 174
175.  THE FIRST CASE IN THIS COURT APPLYING THE DOCTRINE TO INTERSTATE
COMMERCE WAS THAT OF U.S. GLUE CO. V. TOWN OF OAK CREEK, 247 U.S. 321
(1918).  THERE THE COURT DISTINGUISHED BETWEEN AN INVALID DIRECT LEVY
WHICH PLACED A BURDEN ON INTERSTATE COMMERCE AND A CHARGE BY WAY OF NET
INCOME DERIVED FROM PROFITS FROM INTERSTATE COMMERCE.  THIS LANDMARK
CASE AND THOSE USUALLY CITED AS UPHOLDING THE DOCTRINE THERE ANNOUNCED,
I.E., UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, 254 U.S. 113 (1920), AND
MEMPHIS GAS CO. V. BEELER, 315 U.S. 649 (1942), DEALT WITH CORPORATIONS
WHICH WERE DOMESTIC TO THE TAXING STATE (U.S. GLUE CO. V. TOWN OF OAK
CREEK, SUPRA), OR WHICH HAD "ESTABLISHED A COMMERCIAL DOMICILE" THERE,
UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, SUPRA; MEMPHIS GAS CO. V.
BEELER, SUPRA. 

BUT THAT THE PRESENCE OF SUCH A CIRCUMSTANCE IS NOT CONTROLLING IS
SHOWN BY THE CASES OF BASS, RATCLIFF & GRETTON, LTD., V. STATE TAX
COMMISSION, 266 U.S. 271 (1924), AND NORFOLK & W.R. CO. V. NORTH
CAROLINA, 297 U.S. 682 (1936).  IN NEITHER OF THESE CASES WAS THE
TAXPAYER A DOMICILIARY OF THE TAXING STATE, INCORPORATED OR WITH ITS
PRINCIPAL PLACE OF BUSINESS THERE, THOUGH EACH CARRIED ON SUBSTANTIAL
LOCAL ACTIVITIES.  PERMITTING THE ASSESSMENT OF NEW YORK'S FRANCHISE
TAX MEASURED ON A PROPORTIONAL FORMULA AGAINST A BRITISH CORPORATION
SELLING ALE IN NEW YORK STATE, THE COURT HELD IN BASS, RATCLIFF &
GRETTON, LTD., SUPRA, THAT "THE COMPANY CARRIED ON THE UNITARY BUSINESS
OF MANUFACTURING AND SELLING ALE, IN WHICH ITS PROFITS WERE EARNED BY A
SERIES OF TRANSACTIONS BEGINNING WITH THE MANUFACTURE IN ENGLAND AND
ENDING IN SALES IN NEW YORK AND OTHER PLACES - THE PROCESS OF
MANUFACTURING RESULTING IN NO PROFITS UNTIL IT ENDS IN SALES - THE
STATE WAS JUSTIFIED IN ATTRIBUTING TO NEW YORK A JUST PROPORTION OF THE
PROFITS EARNED BY THE COMPANY FROM SUCH UNITARY BUSINESS."  ID., AT
282.  LIKEWISE IN NORFOLK & W.R. CO., SUPRA, NORTH CAROLINA WAS
PERMITTED TO TAX VIRGINIA CORPORATION ON NET INCOME APPORTIONED TO
NORTH CAROLINA ON THE BASIS OF MILEAGE WITHIN THE STATE.  THESE CASES
STAND FOR THE DOCTRINE THAT THE ENTIRE NET INCOME OF A CORPORATION,
GENERATED BY INTERSTATE AS WELL AS INTRASTATE ACTIVITIES, MAY BE FAIRLY
APPORTIONED AMONG THE STATES FOR TAX PURPOSES BY FORMULAS UTILIZING IN
STATE ASPECTS OF INTERSTATE AFFAIRS.  IN FACT, IN BASS, RATCLIFF &
GRETTON THE OPERATIONS IN THE TAXING STATE WERE CONDUCTED AT A LOSS,
AND STILL THE COURT ALLOWED PART OF THE OVER-ALL NET PROFIT OF THE
CORPORATION TO BE ATTRIBUTED TO THE STATE.  A READING OF THE STATUTE IN
NORFOLK & W.R. CO. REVEALS FURTHER THAT ONE FACET OF THE APPORTIONMENT
FORMULA WAS SPECIFICALLY DESIGNED TO ATTRIBUTE A PORTION OF THE
INTERSTATE HAULS TO THE TAXING STATE. 

ANY DOUBT AS TO THE VALIDITY OF OUR POSITION HERE WAS ENTIRELY
DISPELLED FOUR YEARS AFTER BEELER, IN A UNANIMOUS PER CURIAM IN WEST
PUBLISHING CO. V. MCCOLGAN, 328 U.S. 823, CITING THE FOUR CASES OF
BEELER, U.S. GLUE CO., BOTH SUPRA, INTERSTATE BUSSES CORP. V. BLODGETT,
276 U.S. 245 (1928), AND INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S.
310 (1945).  THE CASE INVOLVED THE VALIDITY OF CALIFORNIA'S TAX ON THE
APPORTIONED NET INCOME OF WEST PUBLISHING COMPANY, WHOSE BUSINESS WAS
EXCLUSIVELY INTERSTATE.  SEE 27 CAL. 2D 705, 166 P.2D 861.  WHILE THE
STATEMENT OF THE FACTS IN THAT OPINION RECITES THAT "THE EMPLOYEES WERE
GIVEN SPACE IN THE OFFICES OF ATTORNEYS IN RETURN FOR THE USE OF
PLAINTIFF'S BOOKS STORED IN SUCH OFFICES," IT IS SIGNIFICANT TO NOTE
THAT WEST HAD NOT QUALIFIED TO DO BUSINESS IN CALIFORNIA AND THE
STATE'S STATUTE ITSELF DECLARED THAT THE TAX WAS LEVIED ON INCOME
DERIVED FROM INTERSTATE COMMERCE WITHIN THE STATE, AS WELL AS ANY
ARISING INTRASTATE.  THE OPINION WAS NOT GROUNDED ON THE TRIVIALITY
THAT OFFICE SPACE WAS GIVEN WEST'S SOLICITERS BY ATTORNEYS IN EXCHANGE
FOR THE CHANCEFUL USE OF WHAT BOOKS THEY MAY HAVE HAD ON HAND FOR THEIR
SALES ACTIVITIES.  RATHER, IT RECOGNIZED THAT THE INCOME TAXED AROSE
FROM A PURELY INTERSTATE OPERATION. 

"IN RELYING ON THE FOREGOING CASES FOR THE PROPOSITION THAT A FOREIGN
CORPORATION ENGAGED WITHIN A STATE SOLELY IN INTERSTATE COMMERCE IS
IMMUNE FROM NET INCOME TAXATION BY THAT STATE, PLAINTIFF (WEST
PUBLISHING CO.)  OVERLOOKS THE DISTINCTION MADE BY THE UNITED STATES
SUPREME COURT BETWEEN A TAX WHOSE SUBJECT IS THE PRIVILEGE OF ENGAGING
IN INTERSTATE COMMERCE AND A TAX WHOSE SUBJECT IS THE NET INCOME FROM
SUCH COMMERCE.  IT IS SETTLED BY DECISIONS OF THE UNITED STATES SUPREME
COURT THAT A TAX ON NET INCOME FROM INTERSTATE COMMERCE, AS
DISTINGUISHED FROM A TAX ON THE PRIVILEGE OF ENGAGING IN INTERSTATE
COMMERCE, DOES NOT CONFLICT WITH THE COMMERCE CLAUSE,"  27 CAL. 2D 705,
708-709, 166 P.2D 861, 863.  (CITATIONS OMITTED.) 

WE BELIEVE THAT THE RATIONALE OF THESE CASES, INVOLVING INCOME LEVIES
BY STATES, CONTROLS THE ISSUES HERE.  THE TAXES ARE NOT REGULATIONS IN
ANY SENSE OF THAT TERM.  ADMITTEDLY THEY DO NOT DISCRIMINATE AGAINST
NOR SUBJECT EITHER CORPORATION TO AN UNDUE BURDEN.  WHILE IT IS TRUE
THAT A STATE MAY NOT ERECT A WALL AROUND ITS BORDERS PREVENTING
COMMERCE AN ENTRY, IT IS AXIOMATIC THAT THE FOUNDERS DID NOT INTEND TO
IMMUNIZE SUCH COMMERCE FROM CARRYING ITS FAIR SHARE OF THE COSTS OF THE
STATE GOVERNMENT IN RETURN FOR THE BENEFITS IT DERIVES FROM WITHIN THE
STATE.  THE LEVIES ARE NOT PROVILEGE TAXES BASED ON THE RIGHT TO CARRY
ON BUSINESS IN THE TAXING STATE.  THE STATES ARE LEFT TO COLLECT ONLY
THROUGH ORDINARY MEANS.  THE TAX, THEREFORE, IS "NOT OPEN TO THE
OBJECTION THAT IT COMPELS THE COMPANY TO PAY FOR THE PRIVILEGE OF
ENGAGING IN INTERSTATE COMMERCE."  UNDERWOOD TYPEWRITER CO. V.
CHAMBERLAIN, SUPRA, AT 119.  AS WAS SAID IN WISCONSIN V. MINNESOTA
MINING & MFG. CO., 311 U.S. 452, 453 (1940), "IT IS TOO LATE IN THE DAY
TO FIND OFFENSE TO THAT (COMMERCE) CLAUSE BECAUSE A STATE TAX IS
IMPOSED ON CORPORATE NET INCOME OF AN INTERSTATE ENTERPRISE WHICH IS
ATTRIBUTABLE TO EARNINGS WITHIN THE TAXING STATE  ...  ." 

WHILE THE ECONOMIC WISDOM OF STATE NET INCOME TAXES IS ONE OF STATE
POLICY NOT FOR OUR DECISION, ONE OF THE "REALITIES" RAISED BY THE
PARTIES IS THE POSSIBILITY OF A MULTIPLE BURDEN RESULTING FROM THE
EXACTIONS IN QUESTION.  THE ANSWER IS THAT NONE IS SHOWN TO EXIST
HERE.  THIS IS NOT AN UNAPPORTIONED TAX WHICH BY ITS VERY NATURE MAKES
INTERSTATE COMMERCE BEAR MORE THAN ITS FAIR SHARE.  AS WAS SAID IN
CENTRAL GREYHOUND LINES V. MEALEY, 334 U.S. 653, 661 (1948), "IT IS
INTERSTATE COMMERCE WHICH THE STATE IS SEEKING TO REACH AND  ...  THE
REAL QUESTION IS WHETHER WHAT THE STATE IS EXACTING IS A
CONSTITUTIONALLY FAIR DEMAND BY THE STATE FOR THAT ASPECT OF THE
INTERSTATE COMMERCE TO WHICH THE STATE BEARS A SPECIAL RELATION."  THE
APPORTIONED TAX IS DESIGNED TO MEET THIS VERY REQUIREMENT AND "TO
PREVENT THE LEVYING OF SUCH TAXES AS WILL DISCRIMINATE AGAINST OR
PROHIBIT THE INTERSTATE ACTIVITIES OR WILL PLACE THE INTERSTATE
COMMERCE AT A DISADVANTAGE RELATIVE TO LOCAL COMMERCE."  ID., AT 670. 
LOGICALLY IT IS IMPOSSIBLE, WHEN THE TAX IS FAIRLY APPORTIONED, TO HAVE
THE SAME INCOME TAXED TWICE.  IN PRACTICAL OPERATION, HOWEVER,
APPORTIONMENT FORMULAS BEING WHAT THEY ARE, THE POSSIBILITY OF THE
CONTRARY IS NOT FORECLOSED, ESPECIALLY BY LEVIES IN DOMICILIARY
STATES.  (FN5)  BUT THAT QUESTION IS NOT BEFORE US.  IT WAS ARGUED IN
NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292 (1944), THAT THE TAXATION
OF THE ENTIRE FLEET OF ITS AIRPLANES IN THAT STATE WOULD RESULT IN
MULTIPLE TAXATION SINCE OTHER STATES LEVIED TAXES ON SOME PROPORTION OF
THE FULL VALUE THEREOF.  THE COURT REJECTED THIS CONTENTION AS BEING
"NOT NOW BEFORE US" EVEN THOUGH OTHER STATES ACTUALLY COLLECTED
PROPERTY TAXES FOR THE SAME YEAR FROM NORTHWEST UPON "SOME PROPORTION"
OF THE FULL VALUE OF ITS FLEET.  (FN6)  HERE THE RECORDS ARE ALL TO THE
CONTRARY.  THERE IS NOTHING TO SHOW THAT MULTIPLE TAXATION IS PRESENT. 
WE CANNOT DEAL IN ABSTRACTIONS.  IN THIS TYPE OF CASE THE TAXPAYERS
MUST SHOW THAT THE FORMULA PLACES A BURDEN UPON INTERSTATE COMMERCE IN
A CONSTITUTIONAL SENSE.  THIS THEY HAVE FAILED TO DO. 

IT IS ALSO CONTENDED THAT SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S.
602 (1951), REQUIRES A CONTRARY RESULT.  BUT THERE IT WAS REPEATEDLY
EMPHASIZED THAT THE TAX WAS "IMPOSED UPON THE FRANCHISE OF A FOREIGN
CORPORATION FOR THE PRIVILEGE OF DOING BUSINESS WITHIN THE STATE  ...
."  THUS, IT WAS INVALID UNDER A LONG LINE OF PRECEDENTS, SOME OF WHICH
WE HAVE MENTIONED.  (FN7)  IT WAS NOT A LEVY ON NET INCOME BUT AN
EXCISE OR TAX PLACED ON THE FRANCHISE OF A FOREIGN CORPORATION ENGAGED
"EXCLUSIVELY" IN INTERSTATE OPERATIONS.  THEREFORE, WITH THE EXCEPTION
OF BEELER, HERETOFORE MENTIONED, THE COURT MADE NO REFERENCE TO THE NET
INCOME-TAX CASES WHICH CONTROL HERE.  WE DO NOT CONSTRUE THAT REFERENCE
AS INTENDED TO IMPAIR THE VALIDITY OF THE BEELER OPINION.  NOR DOES IT
REACH OUR PROBLEM.  THE TAXES HERE, LIKE THAT IN WEST PUBLISHING CO. V.
MCCOLGAN, SUPRA, ARE BASED ONLY UPON THE NET PROFITS EARNED IN THE
TAXING STATE.  THAT INCIDENCE OF THE TAX AFFORDS A VALID
"CONSTITUTIONAL CHANNEL" WHICH THE STATES HAVE UTILIZED TO "MAKE
INTERSTATE COMMERCE PAY ITS WAY."  IN SPECTOR THE INCIDENCE WAS THE
PRIVILEGE OF DOING BUSINESS, AND THAT AVENUE OF APPROACH HAD LONG BEEN
DECLARED UNAVAILABLE UNDER THE COMMERCE CLAUSE.  AS WAS SAID IN
SPECTOR, "TAXES MAY BE IMPOSED ALTHOUGH THEIR PAYMENT MAY COME OUT OF
THE FUNDS DERIVED FROM PETITIONER'S INTERSTATE BUSINESS, PROVIDED THE
TAXES ARE SO IMPOSED THAT THEIR BURDEN WILL BE REASONABLY RELATED TO
THE POWERS OF THE STATE AND (ARE) NON-DISCRIMINATORY."  340 U.S., AT
609.  WE FIND THAT THE STATUTES HERE MEET THESE TESTS. 

NOR WILL THE ARGUMENT THAT THE EXACTIONS CONTRAVENE THE DUE PROCESS
CLAUSE BEAR SCRUTINY.  THE TAXES IMPOSED ARE LEVIED ONLY ON THAT
PORTION OF THE TAXPAYER'S NET INCOME WHICH ARISES FROM ITS ACTIVITIES
WITHIN THE TAXING STATE.  THESE ACTIVITIES FORM A SUFFICIENT "NEXUS
BETWEEN SUCH A TAX AND TRANSACTIONS WITHIN A STATE FOR WHICH THE TAX IS
AN EXACTION."  WISCONSIN V. J.C. PENNEY CO., SUPRA, AT 445.  IT STRAINS
REALITY TO SAY, IN TERMS OF OUR DECISIONS, THAT EACH OF THE
CORPORATIONS HERE WAS NOT SUFFICIENTLY INVOLVED IN LOCAL EVENTS TO
FORGE "SOME DEFINITE LINK, SOME MINIMUM CONNECTION" SUFFICIENT TO
SATISFY DUE PROCESS REQUIREMENTS.  MILLER BROS. V. MARYLAND, 347 U.S.
340, 344-345 (1954).  SEE ALSO OTT V. MISS.  VALLEY BARGE LINE, 336
U.S. 169 (1949); INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310
(1945); AND WEST PUBLISHING CO. V. MCCOLGAN, SUPRA.  THE RECORD IS
WITHOUT CONFLICT THAT BOTH CORPORATIONS ENGAGE IN SUBSTANTIAL INCOME
PRODUCING ACTIVITY IN THE TAXING STATES.  IN FACT IN NO. 12 ALMOST HALF
OF THE CORPORATION'S INCOME IS DERIVED FROM THE TAXING STATE'S SALES
WHICH ARE SHOWN TO BE PROMOTED BY VIGOROUS AND CONTINUOUS SALES
CAMPAIGNS RUN THROUGH A CENTRAL OFFICE LOCATED IN THE STATE.  WHILE IN
NO. 33 THE PERCENT OF SALES IS NOT AVAILABLE, THE COURSE OF CONDUCT WAS
LARGELY IDENTICAL.  AS WAS SAID IN WISCONSIN V. J.C. PENNEY CO., SUPRA,
THE "CONTROLLING QUESTION IS WHETHER THE STATE HAS GIVEN ANYTHING FOR
WHICH IT CAN ASK RETURN."  SINCE BY "THE PRACTICAL OPERATION OF (THE)
TAX THE STATE HAS EXERTED ITS POWER IN RELATION TO OPPORTUNITIES WHICH
IT HAS GIVEN, TO PROTECTION WHICH IT HAS AFFORDED, TO BENEFITS WHICH IT
HAS CONFERRED  ...  " IT "IS FREE TO PURSUE ITS OWN FISCAL POLICIES,
UNEMBARRASSED BY THE CONSTITUTION ... ."  ID., AT 444.  NO. 12 -
AFFIRMED.  NO. 33 - REVERSED. 

FN1  SEC. 290.03: 

"CLASSES OF TAXPAYERS.  AN ANNUAL TAX FOR EACH TAXABLE YEAR, COMPUTED
IN THE MANNER AND AT THE RATES HEREINAFTER PROVIDED, IS HEREBY IMPOSED
UPON THE TAXABLE NET INCOME FOR SUCH YEAR OF THE FOLLOWING CLASSES OF
TAXPAYERS: 

"(1) DOMESTIC AND FOREIGN CORPORATIONS NOT TAXABLE UNDER SECTION
290.02 WHICH OWN PROPERTY WITHIN THIS STATE OR WHOSE BUSINESS WITHIN
THIS STATE DURING THE TAXABLE YEAR CONSISTS EXCLUSIVELY OF FOREIGN
COMMERCE, INTERSTATE COMMERCE, OR BOTH. 

"BUSINESS WITHIN THE STATE SHALL NOT BE DEEMED TO INCLUDE
TRANSPORTATION IN INTERSTATE OR FOREIGN COMMERCE, OR BOTH, BY MEANS OF
SHIPS NAVIGATING WITHIN OR THROUGH WATERS WHICH ARE MADE INTERNATIONAL
FOR NAVIGATION PURPOSES BY ANY TREATY OR AGREEMENT TO WHICH THE UNITED
STATES IS A PARTY; ...  ."  MINN. STAT., 1945, SEC. 290.03. 

FN2  MINN. STAT. (1945), SEC. 290.19. 

FN3  GA. CODE ANN. (1937), SEC. 92-3102. 

"RATE OF TAXATION OF CORPORATIONS.  - EVERY DOMESTIC CORPORATION AND
EVERY FOREIGN CORPORATION SHALL PAY ANNUALLY AN INCOME TAX EQUIVALENT
TO FIVE AND ONE-HALF PERCENT.  OF THE NET INCOME FROM PROPERTY OWNED OR
FROM BUSINESS DONE IN GEORGIA, AS IS DEFINED IN SECTION 92-3113:  ...
." 

GA. CODE ANN. (1937), SEC. 92-3113. 

"CORPORATIONS, ALLOCATION AND APPORTIONMENT OF INCOME.  - THE TAX
IMPOSED BY THIS LAW SHALL APPLY TO THE ENTIRE NET INCOME, AS HEREIN
DEFINED, RECEIVED BY EVERY CORPORATION, FOREIGN OR DOMESTIC, OWNING
PROPERTY OR DOING BUSINESS IN THIS STATE.  EVERY SUCH CORPORATION SHALL
BE DEEMED TO BE DOING BUSINESS WITHIN THIS STATE IF IT ENGAGES WITHIN
THIS STATE IN ANY ACTIVITIES OR TRANSACTIONS FOR THE PURPOSE OF
FINANCIAL PROFIT OR GAIN, WHETHER OR NOT SUCH CORPORATION QUALIFIES TO
DO BUSINESS IN THIS STATE, AND WHETHER OR NOT IT MAINTAINS AN OFFICE OR
PLACE OF DOING BUSINESS WITHIN THIS STATE, AND WHETHER OR NOT ANY SUCH
ACTIVITY OR TRANSACTION IS CONNECTED WITH INTERSTATE OR FOREIGN
COMMERCE  ...  ." 

FN4  THE TAX ON CORPORATIONS IS PART OF A GENERAL SCHEME OF INCOME
TAXATION WHICH GEORGIA IMPOSES ON INDIVIDUALS (SEC. 92-3101),
CORPORATIONS (SEC. 92-3102), AND FIDUCIARIES (SEC.  92-3103). 

FN5  IN STANDARD OIL CO. V. PECK, 342 U.S. 382 (1952), WE STRUCK DOWN
OHIO'S AD VALOREM PROPERTY TAX ON VESSELS DOMICILED THERE BUT PLYING IN
INTERSTATE TRADE BECAUSE IT WAS NOT APPORTIONED. 

FN6  THE COURT NEVERTHELESS POINTED OUT THAT SUCH PAYMENTS DID "NOT
ABRIDGE THE POWER OF TAXATION OF  ...  THE HOME STATE."  322 U.S., AT
295. 

FN7  SEE ALSO ALPHA PORTLAND CEMENT CO. V. MASSACHUSETTS, 268 U.S.
203, 216 (1925), WHERE THIS COURT, STRIKING DOWN A MASSACHUSETTS EXCISE
TAX ON A FOREIGN CORPORATION ENGAGED EXCLUSIVELY IN INTERSTATE
COMMERCE, NOTED THAT "THE RIGHT TO LAY TAXES ON TANGIBLE PROPERTY OR ON
INCOME IS NOT INVOLVED; ...  ." 

FURTHERMORE, NONE OF THE CASES WHICH THE DISSENT RELIES ON FOR THE
PROPOSITION THAT "NO STATE HAS THE RIGHT TO LAY A TAX ON INTERSTATE
COMMERCE IN ANY FORM  ...  ," WAS A NET INCOME TAX CASE.  IN FACT, ALL
INVOLVED TAXES LEVIED UPON CORPORATIONS FOR THE PRIVILEGE OF ENGAGING
IN INTERSTATE COMMERCE.  THIS COURT HAS CONSISTENTLY HELD THAT THE
"PRIVILEGE" OF ENGAGING IN INTERSTATE COMMERCE CANNOT BE GRANTED OR
WITHHELD BY A STATE, AND THAT THE ASSERTION OF STATE POWER TO TAX THE
"PRIVILEGE" IS, THEREFORE, A FORBIDDEN ATTEMPT TO "REGULATE" INTERSTATE
COMMERCE.  CF. MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 112-113 (1943). 
MR. JUSTICE HARLAN, CONCURRING. 

IN JOINING THE OPINION OF THE COURT, I DEEM IT APPROPRIATE TO MAKE
SOME FURTHER COMMENTS AS TO THE ISSUES IN THESE CASES BECAUSE OF THE
STRONGLY HELD CONTRARY VIEWS MANIFESTED IN THE DISSENTING OPINIONS OF
MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITTAKER.  I PREFACE WHAT
FOLLOWS BY SAYING THAT IN MY VIEW THE PAST DECISIONS OF THIS COURT
CLEARLY POINT TO, IF INDEED THEY DO NOT COMPEL, THE SUSTAINING OF THESE
TWO STATE TAXING MEASURES.    SINCE U.S. GLUE CO. V. TOWN OF OAK CREEK,
247 U.S. 321, DECIDED IN 1918, THIS COURT HAS UNIFORMLY HELD THAT A
STATE, IN APPLYING A NET INCOME TAX OF GENERAL IMPACT TO A CORPORATION
DOING BUSINESS WITHIN ITS BORDERS, MAY REACH INCOME DERIVED FROM
INTERSTATE COMMERCE TO THE EXTENT THAT SUCH INCOME IS FAIRLY RELATED TO
CORPORATE ACTIVITIES WITHIN THE STATE.  SEE, E.G., SHAFFER V. CARTER,
252 U.S. 37, 57; ATLANTIC COAST LINE R. CO. V. DAUGHTON, 262 U.S. 413,
416.  SEE ALSO UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, 254 U.S. 113,
119-120; BASS, RATCLIFF & GRETTON, LTD., V. STATE TAX COMM'N, 266 U.S.
271; NORFOLK & W.R. CO. V. NORTH CAROLINA, 297 U.S. 682. 

AS I READ THE CASES THE EXISTENCE OF SOME INCOME FROM INTRASTATE
BUSINESS ON THE PART OF THE TAXED CORPORATION, WHILE SOMETIMES ADVERTED
TO, HAS NEVER BEEN CONSIDERED ESSENTIAL TO THE VALID TAXATION OF SUCH
"INTERSTATE" INCOME.  THE CASES UPHOLDING TAXES OF THIS KIND CANNOT, IN
MY OPINION, PROPERLY BE SAID TO REST ON THE THEORY THAT THE INCOME
EARNED FROM THE CARRYING ON OF INTERSTATE COMMERCE WAS NOT IN FACT
BEING TAXED, BUT RATHER WAS BEING UTILIZED SIMPLY TO MEASURE THE INCOME
DERIVED FROM SOME SEPARATE, BUT UNIDENTIFIED, INTRASTATE COMMERCE,
WHICH INCOME WAS IN TRUTH THE SUBJECT OF THE TAX.  THAT THIS IS SO
SEEMS TO ME APPARENT FROM U.S. GLUE ITSELF.  THERE THE COURT EXPLICITLY
RECOGNIZED THAT THE QUESTION BEFORE IT WAS WHETHER NET INCOME FROM
EXCLUSIVELY INTERSTATE COMMERCE COULD BE TAXED BY A STATE ON AN
APPORTIONED BASIS TOGETHER WITH OTHER INCOME OF A CORPORATION.  THE
CAREFUL DISTINCTION, DRAWN MORE THAN ONCE IN THE COURSE OF THE OPINION,
BETWEEN GROSS RECEIPTS FROM INTERSTATE COMMERCE, ASSUMED TO BE IMMUNE
FROM STATE TAXATION, AND NET INCOME THEREFROM, 247 U.S., AT 324, 326,
327, 328, 329, WOULD BE ALTOGETHER MEANINGLESS IF THE CASE IS TO BE
EXPLAINED ON THE BASIS SUGGESTED BY MY DISSENTING BRETHREN, FOR IF ALL
THAT WAS IN FACT BEING TAXED WAS INCOME FROM INTRASTATE COMMERCE THERE
IS NO REASON WHY GROSS RECEIPTS AS WELL AS NET INCOME COULD NOT HAVE
BEEN REACHED BY THE STATE.  (FN1) 

SURELY ANY POSSIBLE DOUBT ON THIS SCORE IS REMOVED BY WEST PUBLISHING
CO. V. MCCOLGAN, 328 U.S. 823, WHERE THIS COURT UNANIMOUSLY AFFIRMED,
WITHOUT ORAL ARGUMENT, A DECISION OF THE CALIFORNIA SUPREME COURT
UPHOLDING THE VALIDITY OF A STATUTE TAXING "INCOME FROM ANY ACTIVITIES
CARRIED ON IN THIS STATE, REGARDLESS OF WHETHER CARRIED ON IN
INTRASTATE, INTERSTATE OR FOREIGN COMMERCE" AS APPLIED TO REACH A
PORTION OF THE NET INCOME OF A MINNESOTA CORPORATION NOT QUALIFIED TO
DO INTRASTATE BUSINESS IN CALIFORNIA AND ASSUMED BY THE CALIFORNIA
COURT TO BE DERIVING INCOME IN CALIFORNIA ENTIRELY "FROM ACTIVITIES IN
FURTHERANCE OF A PURELY INTERSTATE BUSINESS  ...  ."  27 CAL. 2D 705,
712, 166 P.2D 861, 865. 

IT IS SUGGESTED THAT THE COURT'S SUMMARY AFFIRMANCE IN THE WEST CASE
WENT ON THE GROUND THAT THE TAXPAYER THERE WAS FOUND BY THE STATE COURT
TO HAVE BEEN ENGAGED IN INTRASTATE COMMERCE IN CALIFORNIA, AND THAT IT
WAS ONLY THE INCOME EARNED FROM SUCH COMMERCE THAT HAD IN TRUTH BEEN
TAXED BY THE STATE.  IN MY VIEW, THIS EXPLANATION OF WEST IS
UNACCEPTABLE.  APART FROM THE FACT THAT THE CALIFORNIA SUPREME COURT
DID NOT PROCEED ON ANY SUCH BASIS (SEE ESPECIALLY THE QUOTATION FROM
THE STATE COURT'S OPINION SET FORTH AT P. 461 OF THIS COURT'S OPINION),
THE ONLY FACTS ELUCIDATED IN SUPPORT OF THIS VIEW OF THE WEST CASE ARE
THAT EMPLOYEES OF THE TAXPAYER SOLICITED BUSINESS IN CALIFORNIA, THAT
THEY WERE AUTHORIZED TO RECEIVE PAYMENTS ON ORDERS TAKEN BY THEM, TO
COLLECT DELINQUENT ACCOUNTS, AND TO ADJUST COMPLAINTS, AND THAT THEY
WERE GIVEN SPACE IN CALIFORNIA LAWYERS' OFFICES IN RETURN FOR THE USE
OF THE TAXPAYER'S BOOKS THERE STORED, WHICH LOCATIONS WERE ALSO
ADVERTISED AS THE TAXPAYER'S LOCAL OFFICES.  IT IS SAID THAT THESE ARE
"THE USUAL CRITERIA WHICH THIS COURT HAS CONSISTENTLY HELD TO
CONSTITUTE THE DOING OF INTRASTATE COMMERCE" AND THAT "CALIFORNIA
DETERMINED AND TAXED ONLY THE AMOUNT OF THAT INTRASTATE COMMERCE." 
WITH DEFERENCE, THIS SEEMS TO ME TO BE BOTH NOVEL DOCTRINE AND UNREAL
ANALYSIS; NOVEL DOCTRINE BECAUSE THIS COURT HAS NEVER HELD THAT
ACTIVITIES OF THIS KIND, PERFORMED SOLELY IN AID OF INTERSTATE SALES,
ARE INTRASTATE COMMERCE; UNREAL ANALYSIS, BECAUSE IT IS SURELY
STRETCHING THINGS TOO FAR TO SAY THAT CALIFORNIA WAS SEEKING TO MEASURE
AND TAX OFFICE RENTING AND COMPLAINT ADJUSTING RATHER THAN PART OF THE
INCOME FROM CONCEDEDLY INTERSTATE SALES TRANSACTIONS. 

I THINK THAT WEST SQUARELY GOVERNS THE TWO CASES NOW BEFORE US.
(FN2) 

IT IS SAID THAT THE TAXES PRESENTLY AT ISSUE WERE "LAID ON INCOME
FROM (INTERSTATE COMMERCE) BECAUSE OF ITS SOURCE."  IF THIS WERE SO I
SHOULD OF COURSE VOTE TO STRIKE DOWN THEIR APPLICATION HERE AS
UNCONSTITUTIONALLY DISCRIMINATORY AGAINST INTERSTATE COMMERCE.  BUT
THIS SEEMS TO ME PLAINLY NOT SUCH A CASE.  AS THE OPINION OF THE COURT
DEMONSTRATES, THE MINNESOTA AND GEORGIA TAXES ARE EACH PART OF A
GENERAL SCHEME OF STATE INCOME TAXATION, REACHING ALL INDIVIDUAL,
CORPORATE, AND OTHER NET INCOME.  THE TAXING STATUTES ARE NOT SOUGHT TO
BE APPLIED TO PORTIONS OF THE NET INCOME OF NORTHWESTERN AND STOCKHAM
BECAUSE OF THE SOURCE OF THAT INCOME - INTERSTATE COMMERCE - BUT RATHER
DESPITE THAT SOURCE.  THE THRUST OF THESE STATUTES IS NOT HOSTILE
DISCRIMINATION AGAINST INTERSTATE COMMERCE, BUT RATHER A SEEKING OF
SOME COMPENSATION FOR FACILITIES AND BENEFITS AFFORDED BY THE TAXING
STATES TO INCOME-PRODUCING ACTIVITIES THEREIN, WHETHER THOSE ACTIVITIES
BE ALTOGETHER LOCAL OR IN FURTHERANCE OF INTERSTATE COMMERCE.  THE PAST
DECISIONS OF THIS COURT ESTABLISH THAT SUCH COMPENSATION MAY BE HAD BY
THE STATES CONSISTENT WITH THE COMMERCE CLAUSE. 

I THINK IT NO MORE A "REGULATION OF," "BURDEN ON," OR "INTERFERENCE
WITH" INTERSTATE COMMERCE TO PERMIT A STATE WITHIN WHOSE BORDERS A
FOREIGN CORPORATION ENGAGES SOLELY IN ACTIVITIES IN AID OF THAT
COMMERCE TO TAX THE NET INCOME DERIVED THEREFROM ON A PROPERLY
APPORTIONED BASIS THAN TO PERMIT THE SAME STATE TO IMPOSE A
NONDISCRIMINATORY NET INCOME TAX OF GENERAL APPLICATION ON A
CORPORATION ENGAGING IN BOTH INTERSTATE AND INTRASTATE COMMERCE THEREIN
AND TO TAKE INTO ACCOUNT INCOME FROM BOTH CATAGORIES.  CF.  PECK & CO.
V. LOWE, 247 U.S. 165.  IN EACH CASE THE AMOUNT OF TAX WILL INCREASE AS
THE PROFITABILITY OF THE INTERSTATE BUSINESS DONE INCREASES.  THIS
COURT HAS CONSISTENTLY UPHELD STATE NET INCOME TAXES OF GENERAL
APPLICATION SO APPLIED AS TO REACH THAT PORTION OF THE PROFITS OF
INTERSTATE BUSINESS ENTERPRISES FAIRLY ALLOCABLE TO ACTIVITIES WITHIN
THE STATE'S BORDERS.  WE DO NO MORE TODAY. 

FN1  AS EARLY AS 1919 SUCH A DISCRIMINATING COMMENTATOR AS THE LATE
THOMAS REED POWELL HAD THIS TO SAY, IN COMMENTING ON THE DECISIONS OF
THIS COURT IN PECK AND CO. V. LOWE, 247 U.S. 165, AND U.S. GLUE CO. V.
TOWN OF OAK CREEK, SUPRA:  "WE MAY TAKE IT FOR GRANTED, THEN, THAT THE
LEGAL CHARACTER OF THE RECIPIENT AND THE NATURE OF THE BUSINESS IN
WHICH THE RECIPIENT IS ENGAGED ARE IMMATERIAL ELEMENTS IN CONSIDERING
THE CONSTITUTIONALITY OF A STATE-WIDE, ALL-INCLUSIVE GENERAL TAX ON NET
INCOME FROM BUSINESS DONE WITHIN THE STATE.  THE RECIPIENT MAY BE AN
INDIVIDUAL, A PARTNERSHIP, A DOMESTIC OR A FOREIGN CORPORATION.  THE
BUSINESS MAY BE EXCLUSIVELY INTERSTATE."  INDIRECT ENCROACHMENT ON
FEDERAL AUTHORITY BY THE TAXING POWERS OF THE STATES.  VII, 32 HARV. L.
REV. 634, 639.  THAT NOTHING IN U.S. GLUE TURNED ON THE FACT THAT THE
TAXPAYER THERE HAPPENED TO BE A DOMESTIC CORPORATION IS SHOWN BY THE
LINE OF CASES FOLLOWING IT WHERE THE TAXPAYERS WERE FOREIGN
CORPORATIONS DOING AN INTERSTATE BUSINESS.  SEE CASES CITED, ANTE, P.
466. 

FN2  APART FROM THE CONSIDERATIONS DISCUSSED IN THE TEXT OF THIS
OPINION, IT IS NOTEWORTHY THAT THE COURT IN WEST, IN RELYING ON MEMPHIS
NATURAL GAS CO. V. BEELER, 315 U.S. 649, CITED DIRECTLY TO PAGE "656"
OF THE BEELER OPINION WHERE IT WAS SAID:  "IN ANY CASE, EVEN IF
TAXPAYER'S BUSINESS WERE WHOLLY INTERSTATE COMMERCE, A
NONDISCRIMINATORY TAX BY TENNESSEE UPON THE NET INCOME OF A FOREIGN
CORPORATION HAVING A COMMERCIAL DOMICILE THERE (CITATION), OR UPON NET
INCOME DERIVED FROM WITHIN THE STATE (CITATIONS), IS NOT PROHIBITED BY
THE COMMERCE CLAUSE ON WHICH THE TAXPAYER ALONE RELIES (CITING AMONG
OTHER CASES U.S. GLUE V. TOWN OF OAK CREEK, SUPRA).  THERE IS NO
CONTENTION OR SHOWING HERE THAT THE TAX ASSESSED IS NOT UPON NET
EARNINGS JUSTLY ATTRIBUTABLE TO TENNESSEE (CITATIONS)." 

MR. JUSTICE FRANKFURTER, DISSENTING. 

BY WAY OF EMPHASIZING MY AGREEMENT WITH MY BROTHER WHITTAKER, I ADD A
FEW OBSERVATIONS. 

THE COURT SUSTAINS THE TAXING POWERS OF THE STATES IN THESE TWO CASES
ESSENTIALLY ON THE BASIS OF PRECEDENTS.  FOR ME, THE RESULT OF TODAY'S
DECISIONS IS TO BREAK NEW GROUND.  I SAY THIS BECAUSE, AMONG ALL THE
HUNDREDS OF CASES DEALING WITH THE POWER OF THE STATES TO TAX COMMERCE,
THERE IS NOT A SINGLE DECISION ADJUDICATING THE PRECISE SITUATION NOW
BEFORE US.  CONCRETELY, WE HAVE NEVER DECIDED THAT A STATE MAY TAX A
CORPORATION WHEN THAT TAX IS ON INCOME RELATED TO THE STATE BY VIRTUE
OF ACTIVITIES WITHIN IT WHEN SUCH ACTIVITIES ARE EXCLUSIVELY PART OF
THE PROCESS OF DOING INTERSTATE COMMERCE.  THAT IS THE PRECISE
SITUATION WHICH THE STATE COURTS FOUND HERE, TO WIT: 

"(NORTHWESTERN'S) ACTIVITIES IN THIS STATE WERE AN INTEGRAL PART OF
ITS INTERSTATE ACTIVITIES, AND ALL REVENUE RECEIVED BY IT FROM
CUSTOMERS IN MINNESOTA RESULTED FROM ITS OPERATIONS IN INTERSTATE
COMMERCE." 

AND: 

"WITHOUT DISPUTE (STOCKHAM) WAS ENGAGED EXCLUSIVELY IN INTERSTATE
COMMERCE IN SO FAR AS ITS ACTIVITIES IN GEORGIA ARE CONCERNED."  213
GA. 713, 719, 101 S.E.2D 197, 201. 

IT IS VITAL TO REALIZE THAT IN NO CASE PRIOR TO THIS DECISION IN
WHICH THE TAXING POWER OF A STATE HAS BEEN UPHELD WHEN APPLIED TO
CORPORATIONS ENGAGED IN INTERSTATE COMMERCE, WAS THERE A TOTAL ABSENCE
OF ACTIVITIES PURUSED OR ADVANTAGES CONFERRED WITHIN THE STATE
SEVERABLE FROM THE VERY PROCESS WHICH CONSTITUTES INTERSTATE COMMERCE. 

THE CASE THAT ARGUMENTATIVELY COMES THE CLOSEST TO THE SITUATION NOW
BEFORE THE COURT IS WEST PUBLISHING CO. V. MCCOLGAN, 328 U.S. 823. 
(FN1)  BUT IN THAT CASE TOO, AS THE OPINION OF THE CALIFORNIA SUPREME
COURT WHICH WE THERE SUMMARILY SUSTAINED CLEARLY SET FORTH, 27 CAL. 2D
705, 166 P.2D 861, THE WEST PUBLISHING COMPANY DID NOT MERELY COMPLETE
IN CALIFORNIA THE BUSINESS WHICH BEGAN IN MINNESOTA.  IT EMPLOYED
PERMANENT WORKERS WHO ENGAGED IN BUSINESS ACTIVITIES LOCALIZED IN
CALIFORNIA, ACTIVITIES WHICH WERE APART FROM AND IN ADDITION TO THE
PURELY INTERSTATE SALE OF LAW BOOKS.  THESE ACTIVITIES WERE MORE THAN
AN ESSENTIAL PART OF THE PROCESS OF INTERSTATE COMMERCE; THEY WERE, IN
LEGAL SHORTHAND, LOCAL CALIFORNIA ACTIVITIES CONSTITUTING INTRASTATE
BUSINESS.  IN DEALING WITH THOSE PURELY LOCAL ACTIVITIES THE STATE
COULD PROPERLY EXERT ITS TAXING POWER IN RELATION TO OPPORTUNITIES AND
ADVANTAGES WHICH IT HAD GIVEN AND WHICH IT COULD HAVE WITHHELD BY
SIMPLY NOT ALLOWING A FOREIGN CORPORATION TO DO LOCAL BUSINESS, WHEREAS
NO STATE MAY WITHHOLD FROM A FOREIGN CORPORATION WITHIN ITS BORDERS THE
RIGHT TO EXERCISE WHAT IS PART OF A PROCESS OF EXCLUSIVELY INTERSTATE
COMMERCE.  THE STATE GIVES TO A CORPORATION SO ENGAGED NOTHING WHICH IT
CAN WITHHOLD AND THEREFORE NOTHING FOR WHICH IT CAN CHARGE A PRICE,
WHETHER THE PRICE BE THE COST OF A LICENSE TO DO INTERSTATE BUSINESS OR
A TAX ON THE PROFITS ACCRUING FROM THAT BUSINESS. 

I VENTURE TO SAY THAT EVERY OTHER DECISION - I SAY DECISION, NOT TALK
OR DICTA - ON WHICH RELIANCE IS PLACED, PRESENTED A SITUATION WHERE
CONJOINED WITH THE INTERSTATE COMMERCE WAS SEVERABLE LOCAL STATE
BUSINESS ON THE BASIS OF WHICH THE STATE TAXING POWER BECAME
CONSTITUTIONALLY OPERATIVE.  THE DIFFERENCE BETWEEN THOSE SITUATIONS
AND THIS, AS A MATTER OF ECONOMICS, INVOLVES THE DISTINCTION BETWEEN
TAKING INTO ACCOUNT THE TOTAL ACTIVITY OF THE ENTERPRISE AS A GOING
BUSINESS IN DETERMINING A FAIRLY APPORTIONED TAX BASED ON LOCALLY
DERIVED REVENUES, AND TAXING A PORTION OF REVENUE CONCEDEDLY PRODUCED
BY EXCLUSIVELY INTERSTATE COMMERCE.  TO BE SURE, SUCH A DISTINCTION IS
A NICE ONE, BUT THE LAST WORD ON THE NECESSITY OF NICE DISTINCTIONS IN
THIS AREA WAS SAID BY MR. JUSTICE HOLMES IN GALVESTON, H.&S.A.R.  CO.
V. TEXAS, 210 U.S. 217, 225: "IT BEING ONCE ADMITTED, AS OF COURSE IT
MUST BE, THAT NOT EVERY LAW THAT AFFECTS COMMERCE IS A REGULATION OF IT
IN A CONSTITUTIONAL SENSE, NICE DISTINCTIONS ARE TO BE EXPECTED." 

ACCORDINGLY, TODAY'S DECISION CANNOT REST ON THE BASIS OF ADJUDICATED
PRECEDENTS.  THIS DOES NOT BAR THE MAKING OF A NEW PRECEDENT.  THIS
HISTORY OF THE COMMERCE CLAUSE IS THE HISTORY OF JUDICIAL EVOLUTION. 
IT IS ONE THING, HOWEVER, TO RECOGNIZE THE TAXING POWER OF THE STATES
IN RELATION TO PURELY INTERSTATE ACTIVITIES AND QUITE ANOTHER THING TO
SAY THAT THAT POWER HAS ALREADY BEEN ESTABLISHED BY THE DECISIONS OF
THIS COURT.  IF NEW GROUND IS TO BE BROKEN, THE GROUND MUST BE
JUSTIFIED AND NOT TREATED AS THOUGH IT WERE OLD GROUND. 

I DO NOT THINK WE SHOULD TAKE THIS NEW STEP.  MY OBJECTION IS THE
POLICY THAT UNDERLIES THE COMMERCE CLAUSE, NAMELY, WHATEVER
DISADVANTAGES MAY ACCRUE TO THE SEPARATE STATES FROM MAKING OF THE
UNITED STATES A FREE-TRADE TERRITORY ARE FAR OUTWEIGHED BY THE
ADVANTAGES NOT ONLY TO THE UNITED STATES AS A NATION, BUT TO THE
COMPONENT STATES.  I AM ASSUMING, OF COURSE, THAT TODAY'S DECISION WILL
STIMULATE, IF INDEED IT DOES NOT COMPEL, EVERY STATE OF THE UNION,
WHICH HAS NOT ALREADY DONE SO, TO DEVISE A FORMULA OF APPORTIONMENT TO
TAX THE INCOME OF ENTERPRISES CARRYING ON EXCLUSIVELY INTERSTATE
COMMERCE.  AS A RESULT, INTERSTATE COMMERCE WILL BE BURDENED NOT
HYPOTHETICALLY BUT PRACTICALLY, AND WE HAVE BEEN ADMONISHED AGAIN AND
AGAIN THAT TAXATION IS A PRACTICAL MATTER.    I THINK THAT INTERSTATE
COMMERCE WILL BE NOT MERELY ARGUMENTATIVELY BUT ACTIVELY BURDENED FOR
TWO REASONS: 

FIRST.  IT WILL NOT, I BELIEVE, BE GAINSAID THAT THERE ARE THOUSANDS
OF RELATIVELY SMALL OR MODERATE SIZE CORPORATIONS DOING EXCLUSIVELY
INTERSTATE BUSINESS SPREAD OVER SEVERAL STATES.  TO SUBJECT THESE
CORPORATIONS TO A SEPARATE INCOME TAX IN EACH OF THESE STATES MEANS
THAT THEY WILL HAVE TO KEEP BOOKS, MAKE RETURNS, STORE RECORDS, AND
ENGAGE LEGAL COUNSEL, ALL TO MEET THE DIVERS AND VARIEGATED TAX LAWS OF
FORTY-NINE STATES, WITH THEIR DIFFERENT TIMES FOR FILING RETURNS,
DIFFERENT TAX STRUCTURES, DIFFERENT MODES FOR DETERMINING "NET INCOME,"
AND DIFFERENT, OFTEN CONFLICTING, FORMULAS OF APPORTIONMENT.  THIS WILL
INVOLVE LARGE INCREASES IN BOOKKEEPING, ACCOUNTING, AND LEGAL
PARAPHERNALIA TO MEET THESE NEW DEMANDS.  THE COST OF SUCH FAR-FLUNG
SCHEME FOR COMPLYING WITH THE TAXING REQUIREMENTS OF THE DIFFERENT
STATES MAY WELL EXCEED THE BURDEN OF THE TAXES THEMSELVES, ESPECIALLY
IN THE CASE OF SMALL COMPANIES DOING A SMALL VOLUME OF BUSINESS IN
SEVERAL STATES.  (FN2) 

SECOND.  THE EXTENSIVE LITIGATION IN THIS COURT WHICH HAS CHALLENGED
FORMULAS OF APPORTIONMENT IN THE CASE OF RAILROADS AND EXPRESS
COMPANIES (FN3) - CHALLENGES ADDRESSED TO THE NATURAL TEMPTATION OF THE
STATES TO ABSORB MORE THAN THEIR FAIR SHARE OF INTERSTATE REVENUE -
WILL BE MULTIPLIED MANY TIMES WHEN SUCH FORMULAS ARE APPLIED TO THE
INFINITELY LARGER NUMBER OF OTHER BUSINESSES WHICH ARE ENGAGED IN
EXCLUSIVELY INTERSTATE COMMERCE.  THE DIVISION IN THIS COURT ON THESE
RAILROAD APPORTIONMENT CASES IS A GOOD INDEX OF WHAT MIGHT REASONABLY
BE EXPECTED WHEN CASES INVOLVING THE MORE NUMEROUS NON-TRANSPORTATION
INDUSTRIES COME BEFORE THE COURT.  THIS IS NOT A SUGGESTION THAT THE
CONVENIENCE OF THE COURT SHOULD DETERMINE OUR CONSTRUCTION OF THE
COMMERCE CLAUSE, ALTHOUGH IT IS IMPORTANT IN BALANCING THE
CONSIDERATIONS RELEVANT TO THE COMMERCE CLAUSE AGAINST THE CLAIMS OF
STATE POWER THAT THIS COURT SHOULD BE MINDFUL OF THE KIND OF QUESTIONS
IT WILL BE CALLED UPON TO ADJUDICATE AND ITS SPECIAL COMPETENCE FOR
ADJUDICATING THEM.  WHOLLY APART FROM THAT, THE NECESSITY FOR
LITIGATION BASED ON THESE ELUSIVE AND ESSENTIALLY NON-LEGAL QUESTIONS
CASTS A BURDEN ON BUSINESSES, AND CONSEQUENTLY ON INTERSTATE COMMERCE
ITSELF, WHICH SHOULD NOT BE IMPOSED. 

THESE CONSIDERATIONS DO NOT AT ALL LEAD TO THE CONCLUSION THAT THE
VAST AMOUNT OF BUSINESS CARRIED ON THROUGHOUT ALL THE STATES AS PART OF
WHAT IS EXCLUSIVELY INTERSTATE COMMERCE SHOULD NOT BE MADE TO
CONTRIBUTE TO THE COST OF MAINTAINING STATE GOVERNMENTS WHICH, AS A
PRACTICAL MATTER, NECESSARILY CONTRIBUTE TO THE CONDUCT OF THAT
COMMERCE BY THE MERE FACT OF THEIR EXISTENCE AS GOVERNMENTS.  THE
QUESTION IS NOT WHETHER A FAIR SHARE OF THE PROFITS DERIVED FROM THE
CARRYING ON OF EXCLUSIVELY INTERSTATE COMMERCE SHOULD CONTRIBUTE TO THE
COST OF THE STATE GOVERNMENTS.  THE QUESTION IS WHETHER THE ANSWER TO
THIS PROBLEM RESTS WITH THIS COURT OR WITH CONGRESS. 

I AM NOT UNMINDFUL OF THE EXTENT TO WHICH FEDERAL TAXES ABSORB THE
TAXABLE RESOURCES OF THE NATION, WHILE AT THE SAME TIME THE FISCAL
DEMANDS OF THE STATES ARE ON THE INCREASE.  THESE CONDITIONS PRESENT
FAR-REACHING PROBLEMS OF ACCOMMODATING FEDERAL-STATE FISCAL POLICY. 
BUT A DETERMINATION OF WHO IS TO GET HOW MUCH OUT OF THE COMMON FUND
CAN HARDLY BE MADE WISELY AND SMOOTHLY THROUGH THE ADJUDICATORY
PROCESS.  IN FACT, RELYING ON THE COURTS TO SOLVE THESE PROBLEMS ONLY
AGGRAVATES THE DIFFICULTIES AND RETARDS PROPER LEGISLATIVE SOLUTION. 

AT BEST, THIS COURT CAN ONLY ACT NEGATIVELY; IT CAN DETERMINE WHETHER
A SPECIFIC STATE TAX IS IMPOSED IN VIOLATION OF THE COMMERCE CLAUSE. 
SUCH DECISIONS MUST NECESSARILY DEPEND ON THE APPLICATION OF ROUGH AND
READY LEGAL CONCEPTS.  WE CANNOT MAKE A DETAILED INQUIRY INTO THE
INCIDENCE OF DIVERSE ECONOMIC BURDENS IN ORDER TO DETERMINE THE EXTENT
TO WHICH SUCH BURDENS CONFLICT WITH THE NECESSITIES OF NATIONAL
ECONOMIC LIFE.  NEITHER CAN WE DEVISE APPROPRIATE STANDARDS FOR
DIVIDING UP NATIONAL REVENUE ON THE BASIS OF MORE OR LESS ABSTRACT
PRINCIPLES OF CONSTITUTIONAL LAW, WHICH CANNOT BE RESPONSIVE TO THE
SUBTLETIES OF THE INTERRELATED ECONOMIES OF NATION AND STATE. 

THE PROBLEM CALLS FOR SOLUTION BY DEVISING A CONGRESSIONAL POLICY. 
CONGRESS ALONE CAN PROVIDE FOR A FULL AND THOROUGH CANVASSING OF THE
MULTITUDINOUS AND INTRICATE FACTORS WHICH COMPOSE THE PROBLEM OF THE
TAXING FREEDOM OF THE STATES AND THE NEEDED LIMITS ON SUCH STATE TAXING
POWER.  (FN4) CONGRESSIONAL COMMITTEES CAN MAKE STUDIES AND GIVE THE
CLAIMS OF THE INDIVIDUAL STATES ADEQUATE HEARING BEFORE THE ULTIMATE
LEGISLATIVE FORMULATION OF POLICY IS MADE BY THE REPRESENTATIVES OF ALL
THE STATES.  THE SOLUTION TO THESE PROBLEMS OUGHT NOT TO REST ON THE
SELF-SERVING DETERMINATION OF THE STATES OF WHAT THEY ARE ENTITLED TO
OUT OF THE NATION'S RESOURCES.  CONGRESS ALONE CAN FORMULATE POLICIES
FOUNDED UPON ECONOMIC REALITIES, PERHAPS TO BE APPLIED TO THE MYRIAD
SITUATION INVOLVED BY PROPERLY CONSTITUTED AND DULY INFORMED
ADMINISTRATIVE AGENCY. 

FN1  THE WEST CASE WAS A PER CURIAM AFFIRMANCE WITHOUT OPINION.  THE
COURT CITED FOUR CASES IN SUPPORT:  UNITED STATES GLUE CO. V. TOWN OF
OAK CREEK, 247 U.S. 321; INTERSTATE BUSSES CORP. V. BLODGETT, 276 U.S.
245; MEMPHIS NATURAL GAS CO. V. BEELER, 315 U.S. 649, 656;
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310.  NOT ONE OF THESE
CASES PRESENTED THE ISSUE NOW HERE; IN NONE HAD THE COURT TO SUSTAIN A
STATE NET INCOME TAX ON A BUSINESS WHOSE REVENUE DERIVED SOLELY FROM
INTERSTATE COMMERCE. 

IN UNITED STATES GLUE CO. V. TOWN OF OAK CREEK, SUPRA, THIS COURT
UPHELD AN APPORTIONED NET INCOME TAX LEVIED BY THE STATE OF WISCONSIN
ON A WISCONSIN CORPORATION HAVING ITS PRINCIPAL OFFICE AND
MANUFACTURING ESTABLISHMENT IN THAT STATE.  A SUBSTANTIAL PART OF THE
CORPORATION'S BUSINESS WAS INTRASTATE.  THE ONLY ISSUE BEFORE THE COURT
WAS THE POWER OF THE STATE TO INCLUDE INTERSTATE INCOME IN ITS
APPORTIONMENT COMPUTATION. 

INTERSTATE BUSSES CORP. V. BLODGETT, SUPRA, DECIDED THAT APPELLANT
HAD NOT SUSTAINED THE BURDEN OF SHOWING THAT AN EXCISE TAX OF ONE CENT
PER MILE LEVIED BY CONNECTICUT ON MOTOR VEHICLES USING ITS HIGHWAYS IN
INTERSTATE COMMERCE FELL WITH DISCRIMINATING WEIGHT ON INTERSTATE
COMMERCE WHEN THE TAX WAS VIEWED AS PART OF THE STATE'S ENTIRE TAXING
SCHEME.  ASIDE FROM THIS ISSUE OF DISCRIMINATION, THE CASE WAS MERELY
ANOTHER INSTANCE OF A STATE CHARGING FOR THE USE OF ITS HIGHWAYS. 

THE COURT IN MEMPHIS NATURAL GAS CO. V. BEELER, SUPRA, UPHELD A NET
INCOME TAX IMPOSED BY THE STATE OF TENNESSEE ON REVENUES EARNED BY THE
MEMPHIS GAS COMPANY FROM SHIPPING GAS INTO THE STATE AND SELLING IT,
TOGETHER WITH ANOTHER COMPANY, TO RETAIL CONSUMERS IN THAT STATE.  THE
DECISION WAS EXPLICITLY BASED ON A DETERMINATION THAT THE REVENUE WAS,
IN FACT, DERIVED FROM INTRASTATE RATHER THAN INTERSTATE COMMERCE.  IN
ADDITION THE MEMPHIS COMPANY WAS LICENSED TO DO BUSINESS IN TENNESSEE,
MAINTAINED ITS PRINCIPAL PLACE OF BUSINESS THERE, AND SOLD MUCH OF ITS
GAS IN THAT STATE.  IT IS TRUE THAT ON THE PAGE CITED IN BEELER THE
OPINION INDULGED IN A DICTUM THAT NET INCOME FROM INTERSTATE COMMERCE
WAS TAXABLE.  BUT THIS WAS AN ALMOST BY-THE-WAY OBSERVATION, ITSELF
RELYING ON CITATIONS WHICH DO NOT SUPPORT IT, BY A WRITER PRONE TO
UTTERING DICTA. 

INTERNATIONAL SHOE CO. V. WASHINGTON, SUPRA, DECIDED THAT THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT PROHIBIT THE STATE
OF WASHINGTON FROM EXERCISING JURISDICTION OVER THE INTERNATIONAL SHOE
CO., IN THE LIGHT OF THE FREQUENCY AND EXTENT OF THE COMPANY'S BUSINESS
CONTACTS WITHIN THE STATE.  THERE WAS NO DOUBT THAT THE UNEMPLOYMENT
COMPENSATION CONTRIBUTIONS EXACTED BY WASHINGTON WERE ENTIRELY
CONSISTENT WITH THE COMMERCE CLAUSE, SINCE CONGRESS HAD EXPLICITLY
AUTHORIZED SUCH LEVIES. 

THUS NONE OF THE CASES CITED IN WEST SUPPORT AN INTERPRETATION OF
THAT DECISION WHICH GOES BEYOND THE ACTUAL SITUATION OF SEVERABLE LOCAL
ACTIVITIES PRESENTED IN THAT CASE.  NOR DO THEY SUPPORT THE PRESENT
TAXES LEVIED ON EXCLUSIVELY INTERSTATE BUSINESS. 

FN2  FOR A DETAILED EXPOSITION OF THE MANIFOLD DIFFICULTIES IN
COMPLYING WITH THE DIVERSE AND COMPLEX TAXING SYSTEMS OF THE STATES,
SEE COHEN, STATE TAX ALLOCATIONS AND FORMULAS WHICH AFFECT MANAGEMENT
OPERATING DECISIONS, 1 JOUR.  TAXATION, NO. 2 (JULY 1954), P. 2. 

FN3  SEE, E.G., WALLACE V. HINES, 253 U.S. 67; PULLMAN'S PALACE CAR
CO. V. PENNSYLVANIA, 141 U.S. 18; ADAMS EXPRESS CO. V. OHIO STATE
AUDITOR, 165 U.S. 194; ID., 166 U.S. 185 (OPINION DENYING REHEARING). 

FN4  SEE NORTHWEST AIRLINES, INC., V. MINNESOTA, 322 U.S. 292.  IN
NORTHWEST WE POINTED TO THE DESIRABILITY OF CONGRESSIONAL ACTION TO
FORMULATE UNIFORM STANDARDS FOR STATE TAXATION OF THE RAPIDLY EXPANDING
AIRLINE INDUSTRY.  FOLLOWING OUR DECISION CONGRESS DIRECTED THE CIVIL
AERONAUTICS BOARD TO STUDY AND REPORT TO CONGRESS METHODS OF
ELIMINATING BURDENSOME, MULTIPLE STATE TAXATION OF AIRLINES.  SEE H.R.
DOC. NO. 141, 79TH CONG., 1ST SESS.  THIS REPORT OF THE BOARD WAS A 158
PAGE DOCUMENT WHOSE LENGTH AND COMPLEX ECONOMIC CONTENT IN DEALING WITH
ONLY A SINGLE SUBJECT OF STATE TAXATION, ILLUSTRATE THE DIFFICULTIES
AND NONJUDICIAL NATURE OF THE PROBLEM.  FOLLOWING THE PRESENTATION OF
THIS EXTENSIVE REPORT, SEVERAL BILLS WERE INTRODUCED INTO CONGRESS
PROVIDING FOR A SINGLE UNIFORM APPORTIONMENT FORMULA TO BE USED BY THE
STATES IN TAXING AIRLINES.  H.R. 1241, 80TH CONG., 1ST SESS.; S. 2453,
80TH CONG., 2D SESS.; S. 420, 81ST CONG., 1ST SESS. NONE OF THESE BILLS
WAS ENACTED. 

AUSTRALIA HAS RESOLVED THE PROBLEM OF CONFLICTING AND BURDENSONE
STATE TAXATION OF COMMERCE BY A NATIONAL ARRANGEMENT WHEREBY TAXES ARE
COLLECTED BY THE COMMONWEALTH AND FROM THESE REVENUES APPROPRIATE
ALLOCATIONS ARE MADE ANNUALLY TO THE STATES THROUGH THE MECHANISM OF
THE PREMIERS' CONFERENCE - THE PRIME MINISTER OF THE COMMONWEALTH AND
THE PREMIERS OF THE SEVERAL STATES. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER AND MR.
JUSTICE STEWART JOIN, DISSENTING. 

I RESPECTFULLY DISSENT.  MY DISAGREEMENT WITH THE COURT IS OVER WHAT
I THINK ARE CONSTITUTIONAL FUNDAMENTALS.  I THINK THAT THE COMMERCE
CLAUSE OF THE CONSTITUTION, ART. I, SEC. 8, CL. 3, AS CONSISTENTLY
INTERPRETED BY THIS COURT UNTIL TODAY, PRECLUDES THE STATES FROM LAYING
TAXES DIRECTLY ON, AND THEREBY REGULATING, "EXCLUSIVELY INTERSTATE
COMMERCE."  BUT THE COURT'S DECISION TODAY HOLDS THAT THE STATES MAY DO
SO. 

THE STATUTES, FACTS AND FINDINGS INVOLVED ARE CLEAR, SHARP AND
UNDISPUTED.  THERE IS NO ROOM TO DOUBT THAT THE STATUTES INVOLVED WERE
DESIGNED TO TAX INCOME DERIVED "EXCLUSIVELY (FROM) INTERSTATE
COMMERCE"; THAT THE COURTS OF THE STATES CONCERNED HAVE FOUND THAT THE
INCOME INVOLVED DERIVED "EXCLUSIVELY (FROM) INTERSTATE COMMERCE"; AND
THAT THE TAXES IN QUESTION WERE LAID DIRECTLY ON THAT INTERSTATE
COMMERCE. 

NORTHWESTERN STATES PORTLAND CEMENT COMPANY, AN IOWA CORPORATION
MAINTAINING ITS PRINCIPAL OFFICE AND ONLY MANUFACTURING PLANT IN MASON
CITY IN THAT STATE, HAS FOR MANY YEARS SOLD ITS CEMENT LOCALLY IN IOWA
AND, IN INTERSTATE COMMERCE, TO DEALERS IN NEIGHBORING STATES INCLUDING
MINNESOTA.  ALTHOUGH THE "EXCLUSIVELY" INTERSTATE CHARACTER OF THE
COMMERCE DONE BY NORTHWESTERN IN MINNESOTA IS NOT DISPUTED, THE COURSE
OF ITS CONDUCT IN THAT STATE IS SUMMARIZED IN THE MARGIN.  (FN1)  IN
1950 MINNESOTA, ACTING UNDER ITS STATUTORY "THREE FACTOR FORMULA" NOW
CONTAINED IN MINNESOTA STATUTES, 1957, SEC.  290.19, (FN2) APPORTIONED
AND ALLOCATED TO MINNESOTA A SUBSTANTIAL PART OF NORTHWESTERN'S NET
INCOME FOR EACH OF THE YEARS 1933 THROUGH 1948.  UPON THE AMOUNT OF NET
INCOME SO ALLOCATED, MINNESOTA ASSESSED A TAX AGAINST NORTHWESTERN FOR
EACH OF THOSE YEARS UNDER WHAT IS NOW MINNESOTA STATUTES, 1957, SEC.
290.03, WHICH, IN PERTINENT PART, PROVIDES: 

"290.03  ...  CLASSES OF TAXPAYERS.  AN ANNUAL TAX FOR EACH TAXABLE
YEAR, COMPUTED IN THE MANNER AND AT THE RATES HEREINAFTER PROVIDED, IS
HEREBY IMPOSED UPON THE TAXABLE NET INCOME FOR SUCH YEAR OF THE
FOLLOWING CLASSES OF TAXPAYERS: 

"(1)  DOMESTIC AND FOREIGN CORPORATIONS  ...  WHOSE BUSINESS WITHIN
THIS STATE DURING THE TAXABLE YEARS CONSISTS EXCLUSIVELY OF  ...
INTERSTATE COMMERCE ...  ." 

UPON NORTHWESTERN'S REFUSAL TO PAY THOSE TAXES, MINNESOTA BROUGHT
THIS ACTION IN ITS OWN COURT TO RECOVER THEM.  NORTHWESTERN DEFENDED
UPON THE GROUNDS (1) THAT SEC. 290.03, AS APPLIED, IMPOSED THE TAXES
DIRECTLY UPON INTERSTATE COMMERCE AND, HENCE, REGULATED IT IN VIOLATION
OF THE COMMERCE CLAUSE OF THE CONSTITUTION, ART. I, SEC. 8, CL. 3, AND
(2) THAT THE INCOME INVOLVED WAS NOT SUBJECT TO MINNESOTA'S
JURISDICTION AND ITS ACTION IN TAXING IT VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  AT THE CONCLUSION OF THE TRIAL,
THE COURT MADE FORMAL FINDINGS OF FACT INCLUDING THE FOLLOWING: 

"(NORTHWESTERN'S) ACTIVITIES IN THIS STATE WERE AN INTEGRAL PART OF
ITS INTERSTATE ACTIVITIES, AND ALL REVENUE RECEIVED BY IT FROM
CUSTOMERS IN MINNESOTA RESULTED FROM ITS OPERATIONS IN INTERSTATE
COMMERCE."    BUT THE TRIAL COURT, NEVERTHELESS, SUSTAINED THE TAX AND
ENTERED JUDGMENT FOR THE STATE.  NORTHWESTERN APPEALED TO THE SUPREME
COURT OF MINNESOTA, WHICH, WITHOUT CHALLENGING THE FINDING OF FACT
ABOVE-QUOTED, AFFIRMED, 250 MINN. 32, 84 N.W.2D 373, AND THE CASE IS
HERE ON NORTHWESTERN'S APPEAL.  355 U.S. 911. 

STOCKHAM VALVES & FITTINGS, INC., IS A DELAWARE CORPORATION
MAINTAINING ITS PRINCIPAL OFFICE AND ONLY MANUFACTURING PLANT IN
BIRMINGHAM, ALABAMA.  IT MAKES VALVES AND PIPEFITTINGS WHICH IT SELLS
LOCALLY IN ALABAMA AND, IN INTERSTATE COMMERCE, TO WHOLESALERS AND
JOBBERS IN GOERGIA AS WELL AS IN ALL OTHER STATES OF THE UNION. 
ALTHOUGH THE FACTS ARE STIPULATED AND THE "EXCLUSIVELY" INTERSTATE
CHARACTER OF THE COMMERCE DONE BY STOCKHAM IN GEORGIA IS NOT IN
DISPUTE, THE COURSE OF ITS CONDUCT IN THAT STATE IS SUMMARIZED IN THE
MARGIN.  (FN3)  PETITIONER, AS STATE REVENUE COMMISSIONER OF GEORGIA,
ACTING UNDER THE "THREE FACTOR RATIO" OF THE CODE OF GEORGIA, 1933, AS
AMENDED, SEC. 92-3113(4), (FN4) APPORTIONED AND ALLOCATED TO GEORGIA A
PART OF STOCKHAM'S NET INCOME FOR EACH OF THE YEARS 1952, 1954, AND
1955.  UPON THE AMOUNTS OF NET INCOME SO ALLOCATED, PETITIONER ASSESSED
A TAX AGAINST STOCKHAM FOR EACH OF THOSE YEARS UNDER THE CODE OF
GEORGIA OF 1933, AS AMENDED, SEC. 92-3113, WHICH, IN PERTINENT PART,
PROVIDES: 

"CORPORATIONS, ALLOCATION AND APPORTIONMENT OF INCOME.  - THE TAX
IMPOSED BY THIS LAW SHALL APPLY TO THE ENTIRE NET INCOME, AS HEREIN
DEFINED, RECEIVED BY EVERY CORPORATION, FOREIGN OR DOMESTIC, OWNING
PROPERTY OR DOING BUSINESS IN THIS STATE.  EVERY SUCH CORPORATION SHALL
BE DEEMED TO BE DOING BUSINESS WITHIN THIS STATE IF IT ENGAGES WITHIN
THIS STATE IN ANY ACTIVITIES OR TRANSACTIONS FOR THE PURPOSE OF
FINANCIAL PROFIT OR GAIN,  ...  WHETHER OR NOT ANY SUCH ACTIVITY OR
TRANSACTION IS CONNECTED WITH INTERSTATE OR FOREIGN COMMERCE." 

UPON DEMAND, STOCKHAM PAID THE TAXES AND, AFTER DENIAL OF TIMELY
CLAIM FOR REFUND, BROUGHT THIS SUIT TO RECOVER THE AMOUNT PAID,
CONTENDING (1) THAT SEC. 92-3113, AS APPLIED, IMPOSED THE TAXES
DIRECTLY UPON INTERSTATE COMMERCE AND, HENCE, REGULATED IT IN VIOLATION
OF THE COMMERCE CLAUSE OF THE CONSTITUTION, AND (2) THAT THE INCOME
INVOLVED WAS NOT SUBJECT TO GEORGIA'S JURISDICTION AND ITS ACTION IN
TAXING IT VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
THE TRIAL COURT SUSTAINED THE TAX.  STOCKHAM APPEALED TO THE SUPREME
COURT OF GEORGIA.  IT FOUND THAT: 

"WITHOUT DISPUTE (STOCKHAM) WAS ENGAGED EXCLUSIVELY IN INTERSTATE
COMMERCE IN SO FAR AS ITS ACTIVITIES IN GEORGIA ARE CONCERNED  ...  ." 
213 GA. 713, 719, 101 S.E.2D 197, 201. 

AND IT HELD THAT SEC. 92-3113, AS APPLIED, VIOLATED THE COMMERCE
CLAUSE OF THE CONSTITUTION.  IT THEREUPON REVERSED THE JUDGMENT, 213
GA. 713, 101 S.E.2D 197, AND WE GRANTED GEORGIA'S PETITION FOR
CERTIORARI.  356 U.S. 911. 

I SUBMIT THAT THESE SIMPLE RECITALS CLEARLY SHOW (1) THAT THE
MINNESOTA AND GEORGIA STATUTES, IN PLAIN TERMS, PURPORT TO TAX INCOME
DERIVED "EXCLUSIVELY (FROM) INTERSTATE COMMERCE," (2) THAT THE
MINNESOTA AND GEORGIA COURTS HAVE FOUND THAT THE INCOME INVOLVED WAS
DERIVED "EXCLUSIVELY (FROM) INTERSTATE COMMERCE," AND (3) THAT THE
TAXES WERE LAID DIRECTLY ON THAT INTERSTATE COMMERCE.  THERE IS NO ROOM
TO DISPUTE THESE ADMITTED FACTS.  YET, I BELIEVE, THE COURT DOES NOT
SQUARELY FACE THEM BUT VEILEDLY TREATS THE CASES AS THOUGH INTRASTATE
COMMERCE WERE TO SOME EXTENT INVOLVED.  IT SAYS, REFERRING TO THE
MINNESOTA CASE, (A) THAT ONE OF THE SALESMEN WAS KNOWN AS "DISTRICT
MANAGER," (B) THAT THE MINNEAPOLIS SALES OFFICE WAS USED "AS A CLEARING
HOUSE," (C) THAT "ORDERS WERE SOLICITED AND RECEIVED FROM (BUILDERS,
CONTRACTORS AND ARCHITECTS), ON SPECIAL FORMS FURNISHED BY APPELLANT,
DIRECTED TO AN APPROVED LOCAL DEALER WHO IN TURN WOULD FILL THEM BY
PLACING A LIKE ORDER WITH APPELLANT, (AND THAT) THROUGH THIS SYSTEM
APPELLANT'S SALESMEN WOULD IN EFFECT SECURE ORDERS FOR LOCAL DEALERS
WHICH IN TURN WERE FILLED BY APPELLANT IN THE USUAL MANNER," AND (D)
THAT "SALESMEN WOULD ALSO RECEIVE AND TRANSMIT CLAIMS AGAINST APPELLANT
FOR LOSS OR DAMAGE IN ANY SHIPMENTS MADE BY IT, INFORMING THE COMPANY
OF THE NATURE THEREOF AND REQUESTING INSTRUCTIONS CONCERNING THE
SAME."  THESE RECITALS, IF FOUND TRUE, MIGHT VERY WELL HAVE SUPPORTED A
FINDING, HAD THERE BEEN ONE, THAT THE TAXPAYER WAS ENGAGED IN
INTRASTATE COMMERCE IN MINNESOTA.  PARTICULARLY MIGHT THE STATEMENT
ABOUT THE SALESMEN TAKING ORDERS FROM BUILDERS, CONTRACTORS AND
ARCHITECTS FOR LOCAL DEALERS HAVE DONE SO, FOR IT WAS EXPRESSLY HELD IN
CHENEY BROTHERS CO. V. MASSACHUSETTS, 246 U.S. 147, 155, THAT SUCH
CONDUCT AMOUNTED TO ENGAGING IN THE LOCAL BUSINESS OF SELLING PRODUCTS
FOR SUCH DEALERS.  BUT NO SUCH FINDING WAS MADE BY THE MINNESOTA
COURTS.  AND THERE IS MORE THAN COLORABLE BASIS FOR BELIEVING THAT
MINNESOTA DID NOT DESIRE SUCH A FINDING, AS ANY SUCH PRACTICE COULD
EASILY BE ENDED BY NORTHWESTERN, AND MINNESOTA'S PURPOSE WAS NOT TO
REST ON SUCH A BASIS BUT TO OBTAIN AN ADJUDICATION THAT ITS STATUTE,
SEC. 290.03, CONSTITUTIONALLY IMPOSED A TAX UPON THE TAXPAYER'S NET
INCOME FROM MINNESOTA CUSTOMERS THOUGH DERIVED "EXCLUSIVELY (FROM)
INTERSTATE COMMERCE."  NOR CAN THE COURT'S SEEMING DISDAIN OF THE WORD
"COMMERCE" AND ITS FREQUENT USE, INSTEAD, OF "ACTIVITIES" OBSCURE THE
FACT THAT IT WAS "EXCLUSIVELY INTERSTATE COMMERCE" THAT WAS TAXED.  THE
ABSTRACT USE OF THE WORD "ACTIVITIES," AS APPLIED TO A COMMERCE
QUESTION AND DISTINGUISHED FROM A DUE PROCESS ONE, HAS NO LEGAL
SIGNIFICANCE.  WHAT IS OF LEGAL CONSEQUENCE IS WHETHER THE "ACTIVITIES"
WERE IN INTRASTATE OR IN INTERSTATE COMMERCE.  HERE, THE MINNESOTA AND
GEORGIA COURTS HAVE FOUND THAT THE INCOME WHICH WAS TAXED HAD DERIVED
"EXCLUSIVELY (FROM) INTERSTATE COMMERCE." 

SO IF ANYTHING IS PLAIN IT IS THAT WE ARE NOT PRESENTED WITH CASES
INVOLVING THE DOING OF ANY INTRASTATE COMMERCE IN MINNESOTA OR GEORGIA
BY THE TAXPAYERS.  THE COURTS OF THOSE STATES HAVE EXPRESSLY FOUND THAT
THERE WAS NONE.  THEREFORE, WE DO NOT HAVE A SITUATION WHERE A TAXPAYER
WAS DOING BOTH INTRASTATE AND INTERSTATE COMMERCE WITHIN THE TAXING
STATE, THUS TO INVOKE APPLICATION OF THE STATE'S APPORTIONMENT STATUTE
IN ORDER TO DETERMINE HOW MUCH OF THE TOTAL INCOME OF THE TAXPAYER HAD
DERIVED FROM INTRASTATE COMMERCE IN THE TAXING STATE, AND WAS,
THEREFORE, SUBJECT TO ITS TAXING POWER.  INSTEAD WE HAVE HERE ONLY
INTERSTATE COMMERCE, WHICH THE STATES ARE PROHIBITED FROM REGULATING,
BY DIRECT TAXATION OR OTHERWISE, BY THE COMMERCE CLAUSE OF THE
CONSTITUTION. 

YET, THE COURT "CONCLUDES THAT NET INCOME FROM THE INTERSTATE
OPERATIONS OF A FOREIGN CORPORATION MAY BE SUBJECTED TO STATE TAXATION
PROVIDED THE LEVY IS NOT DISCRIMINATORY AND IS PROPERLY APPORTIONED TO
LOCAL ACTIVITIES WITHIN THE TAXING STATE FORMING SUFFICIENT NEXUS TO
SUPPORT THE SAME."  I RESPECTFULLY SUBMIT THAT THIS IS NOVEL DOCTRINE,
AND THAT THIS COURT HAS NEVER BEFORE SO HELD. 

THE COURT REFERS TO OUR PAST OPINIONS IN THIS FIELD AS CREATING A
"QUAGMIRE," AND SAYS "THERE IS A 'NEED FOR CLEARING UP THE TANGLED
UNDERBRUSH OF PAST CASES' WITH REFERENCE TO THE TAXING POWER OF THE
STATES  ...  ."  I RESPECTFULLY SUBMIT THAT THIS COURT'S PAST OPINIONS,
RIGHTLY UNDERSTOOD AND ALIGNED IN THEIR PROPER CATEGORIES, ARE
REMARKABLY CONSISTENT IN A FIELD SO VARIED AND COMPLEX, AND THAT THEY
DO NOT DESERVE THE CHARACTERIZATIONS GIVEN THEM.  IT IS QUITE TRUE IN
THIS FIELD - AS I THINK IS THE CASE IN ALMOST EVERY FIELD - THAT LOOSE
STATEMENTS CAN BE FOUND IN SOME OF THE OPINIONS WHICH WHEN CONSIDERED
IN ISOLATION, AND CERTAINLY WHEN TAKEN OUT OF CONTEXT, ARE SEEMINGLY
OUTSIDE THE LINE OF THE LAW.  BUT I THINK IT IS ENTIRELY FAIR TO SAY
THAT SUCH CONFUSION AS EXISTS IS MAINLY DUE TO A FAILURE PROPERLY TO
ANALYZE, UNDERSTAND, CATEGORIZE AND APPLY THE DECISIONS. 

IN APPLYING THE COURT'S OPINIONS IN THE FIELD OF STATE INCOME
TAXATION OF COMMERCE, IT IS AT LEAST NECESSARY SHARPLY TO DISCERN (1)
WHETHER THE TAX WAS LAID UPON THE GENERAL INCOME OF A RESIDENT OR
DOMICILIARY OF THE TAXING STATE, (2) WHETHER THE TAXPAYER'S PRODUCTION,
MANUFACTURING, DISTRIBUTION OR MANAGEMENT FACILITIES, OR SOME OF THEM,
WERE LOCATED IN THE TAXING STATE, (3) WHETHER THE TAXPAYER CONDUCTED
BOTH INTRASTATE AND INTERSTATE COMMERCE IN THE TAXING STATE, AND, IF
SO, (4) WHETHER THE TAX WAS DIRECTLY LAID ON INCOME DERIVED FROM
INTERSTATE COMMERCE, OR - WHAT IS THE EQUIVALENT - ON THE WHOLE OF THE
INCOME, OR WHETHER THE WHOLE OF THE INCOME WAS USED AS ONE OF THE
SEVERAL FACTORS IN AN APPORTIONMENT FORMULA MERELY FOR THE PURPOSE OF
FAIRLY MEASURING THE UNCERTAIN PERCENTAGE OR PROPORTION OF THE TOTAL
INCOME THAT WAS EARNED WITHIN THE TAXING STATE. 

LET US START OUR CONSIDERATION WITH FUNDAMENTALS.  OF COURSE, THE
FOUNDATION IS THE COMMERCE CLAUSE ITSELF.  IT PROVIDES:  "THE CONGRESS
SHALL HAVE POWER  ...  TO REGULATE COMMERCE WITH FOREIGN NATIONS, AND
AMONG THE SEVERAL STATES, AND WITH THE INDIAN TRIBES  ...  ."  U.S.
CONST., ART. I, SEC. 8, CL. 3.  THAT CLAUSE "BY ITS OWN FORCE CREATED
AN AREA OF TRADE FREE FROM INTERFERENCE BY THE STATES."  FREEMAN V.
HEWIT, 329 U.S. 249, 252.  "NO STATE HAS THE RIGHT TO LAY A TAX ON
INTERSTATE COMMERCE IN ANY FORM  ...  .  THE REASON IS THAT SUCH
TAXATION IS A BURDEN ON THAT COMMERCE, AND AMOUNTS TO A REGULATION OF
IT, WHICH BELONGS SOLELY TO CONGRESS."  LELOUP V. PORT OF MOBILE, 127
U.S. 640, 648.  AND SEE THE THIRTEEN CASES IN THIS COURT THERE CITED IN
SUPPORT OF THE QUOTED TEXT.  MR. JUSTICE BRANDEIS, SPEAKING FOR THE
COURT IN SPROUT V. SOUTH BEND, 277 U.S. 163, 171, DECLARED THAT "IN
ORDER THAT (A STATE) FEE OR TAX SHALL BE VALID, IT MUST APPEAR THAT IT
IS IMPOSED SOLELY ON ACCOUNT OF THE INTRASTATE BUSINESS; THAT THE
AMOUNT EXACTED IS NOT INCREASED BECAUSE OF THE INTERSTATE BUSINESS
DONE; THAT ONE ENGAGED EXCLUSIVELY IN INTERSTATE COMMERCE WOULD NOT BE
SUBJECT TO THE IMPOSITION; AND THAT THE PERSON TAXED COULD DISCONTINUE
THE INTRASTATE BUSINESS WITHOUT WITHDRAWING ALSO FROM THE INTERSTATE
BUSINESS."  THE SAME DECLARATION WAS MADE FOR THE COURT BY MR. JUSTICE
BUTLER IN EAST OHIO GAS CO. V. TAX COMMISSION, 283 U.S. 465, 470, AND
AGAIN BY MR. CHIEF JUSTICE HUGHES IN COONEY V. MOUNTAIN STATES TEL.
CO., 294 U.S. 384, 393. 

FROM THIS ALONE IT WOULD SEEM NECESSARILY TO FOLLOW THAT THE TAXES
HERE CHALLENGED, WHICH WERE LAID BY THE STATES DIRECTLY ON "EXCLUSIVELY
INTERSTATE COMMERCE," BURDENED THAT COMMERCE AND, HENCE, REGULATED IT
IN VIOLATION OF THE COMMERCE CLAUSE OF THE CONSTITUTION.  BUT THERE IS
MORE.  THIS COURT HAS CONSISTENTLY STRUCK DOWN STATE TAXES WHICH WERE
LAID ON BUSINESS THAT WAS EXCLUSIVELY INTERSTATE IN CHARACTER.  CHENEY
BROTHERS CO. V. MASSACHUSETTS, 246 U.S. 147, 153; ALPHA PORTLAND CEMENT
CO. V. MASSACHUSETTS, 268 U.S. 203; OZARK PIPE LINE CORP. V. MONIER,
266 U.S. 555; SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602.  CF.
JOSEPH V. CARTER & WEEKES CO., 330 U.S. 422; FREEMAN V. HEWIT, SUPRA.
NEITHER THE COURT NOR COUNSEL HAVE CITED, AND OUR RESEARCH HAS NOT
DISCLOSED, A SINGLE OPINION BY THIS COURT THAT HAS UPHELD A STATE TAX
LAID ON "EXCLUSIVELY INTERSTATE COMMERCE," AND WE ARE CONFIDENT NONE
EXISTS. 

THE COURT RECOGNIZES THAT "THE STATES, UNDER THE COMMERCE CLAUSE, ARE
NOT ALLOWED 'ONE SINGLE-TAX-WORTH OF DIRECT INTERFERENCE WITH THE FREE
FLOW OF COMMERCE.'  FREEMAN V. HEWIT, 329 U.S. 249, 256."  IT THEN SAYS
"ON THE OTHER HAND, IT HAS BEEN ESTABLISHED SINCE 1918 THAT A NET
INCOME TAX ON REVENUES DERIVED FROM INTERSTATE COMMERCE DOES NOT OFFEND
CONSTITUTIONAL LIMITATIONS UPON STATE INTERFERENCE WITH SUCH COMMERCE. 
THE DECISION OF PECK & CO. V. LOWE, 247 U.S. 165, POINTED THE WAY." 
WHAT WAY DID IT POINT?  THERE THE 1913 FEDERAL INCOME TAX ACT, IMPOSING
A TAX UPON THE "ENTIRE NET INCOME ARISING OR ACCRUING FROM ALL SOURCES
DURING THE PRECEDING CALENDAR YEAR," WAS APPLIED BY THE FEDERAL
GOVERNMENT TO THE WHOLE NET INCOME OF ONE WHO DERIVED ABOUT THREE
FIFTHS OF IT FROM "BUYING GOODS IN THE SEVERAL STATES, SHIPPING THEM TO
FOREIGN COUNTRIES AND THERE SELLING THEM."  THE QUESTION WAS WHETHER
SUCH A TAX VALIDLY COULD BE IMPOSED IN THE LIGHT OF ART I, SEC. 9, CL.
5 OF THE CONSTITUTION WHICH PROVIDES THAT "NO TAX OR DUTY SHALL BE LAID
ON ARTICLES EXPORTED FROM ANY STATE."  THIS COURT HELD THAT THE EXPORT
CLAUSE ONLY PRECLUDED TAXATION OF "ARTICLES IN COURSE OF EXPORTATION,"
AND DID NOT PROHIBIT FEDERAL TAXATION OF GENERAL INCOME OF THE TAXPAYER
"FROM ALL SOURCES," AND THAT THE TAX WAS "NOT LAID ON INCOME FROM
EXPORTATION BECAUSE OF ITS SOURCE," BUT UPON GENERAL INCOME "FROM ALL
SOURCES," AND WAS, THEREFORE, WITHIN THE FEDERAL POWER TO LEVY.  247
U.S., AT 174.  BUT HERE THE STATES OF MINNESOTA AND GEORGIA "LAID (THE
TAXES DIRECTLY) ON INCOME FROM (EXCLUSIVELY INTERSTATE COMMERCE)
BECAUSE OF ITS SOURCE."  THEY DO NOT CONTEND THAT THEY WERE LAID ON ANY
INTRASTATE COMMERCE BUT ADMIT THERE WAS NONE.  I SUBMIT THAT THE LOWE
CASE DOES NOT IN ANY SENSE "POINT THE WAY" FOR DIRECT TAXATION BY A
STATE OF THAT WHICH IT FINDS AND ADMITS TO BE "EXCLUSIVELY INTERSTATE
COMMERCE." 

THE COURT THEN SAYS "THE FIRST CASE IN THIS COURT APPLYING THE
DOCTRINE (OF THE LOWE CASE) TO INTERSTATE COMMERCE WAS THAT OF U.S.
GLUE CO. V. TOWN OF OAK CREEK, 247 U.S. 321."  I SUBMIT THAT NOTHING IN
THAT CASE IS AUTHORITY FOR THE PROPOSITION THAT A STATE MAY TAX
"EXCLUSIVELY INTERSTATE COMMERCE."  EXACTLY TO THE CONTRARY, IT
SUSTAINED A TAX ONLY ON "THAT PROPORTION OF (THE TAXPAYER'S) INCOME
DERIVED FROM BUSINESS TRANSACTED  ...  WITHIN THE STATE  ...  ."  247
U.S., AT 329.  THAT WAS THE WHOLE POINT OF THE CASE.  THERE THE GLUE
COMPANY, A WISCONSIN CORPORATION, MAINTAINED ITS PRINCIPAL OFFICE AND
ITS ONLY MANUFACTURING PLANT IN THE TOWN OF OAK CREEK, IN THAT STATE. 
IT ALSO MAINTAINED STOCKS IN BRANCHES IN OTHER STATES.  IT SOLD ITS
PRODUCTS BOTH LOCALLY IN WISCONSIN, AND IN OTHER STATES IN INTERSTATE
COMMERCE, SHIPPING EITHER DIRECTLY FROM ITS PLANT IN WISCONSIN OR FROM
ONE OF ITS BRANCHES IN ANOTHER STATE.  IN THE YEAR INVOLVED, ABOUT ONE
SEVENTH OF ITS SALES WERE MADE LOCALLY IN WISCONSIN, FOUR-SEVENTHS OF
THEM WERE MADE, AND THE GOODS SHIPPED FROM ITS FACTORY DIRECTLY TO
CUSTOMERS IN OTHER STATES, IN INTERSTATE COMMERCE, AND TWO-SEVENTHS OF
THEM WERE MADE FROM STOCKS IN ITS BRANCHES IN OTHER STATES. 
WISCONSIN'S INCOME TAX STATUTES PROVIDED, IN PERTINENT PART, THAT "ANY
PERSON ENGAGED IN BUSINESS WITHIN AND WITHOUT THE STATE SHALL  ...  BE
TAXED ONLY UPON THAT PROPORTION OF SUCH INCOME AS IS DERIVED FROM
BUSINESS TRANSACTED  ...  WITHIN THE STATE."  "IN ORDER TO DETERMINE
WHAT PART OF THE INCOME OF A CORPORATION ENGAGED IN BUSINESS WITHIN AND
WITHOUT THE STATE  ...  IS TO BE TAXED AS DERIVED FROM BUSINESS
TRANSACTED  ...  WITHIN THE STATE, REFERENCE IS HAD TO A FORMULA
PRESCRIBED BY ANOTHER STATUTE," WHICH EMPLOYED THE TOTAL INCOME OF THE
TAXPAYER AS ONE OF ITS SEVERAL FACTORS.  "THIS FORMULA WAS APPLIED IN
APPORTIONING (THE TAXPAYER'S) NET 'BUSINESS INCOME' FOR THE YEAR"
INVOLVED, WHICH PRODUCED AN AMOUNT SUBSTANTIALLY EXCEEDING ONE-SEVENTH
OF ITS TOTAL INCOME - THE AMOUNT OF ITS LOCAL SALES.  "UPON THE PORTION
THUS ATTRIBUTED TO THE STATE  ...  THE TAX IN QUESTION WAS LEVIED." 
247 U.S., AT 323-325.  THE GLUE COMPANY RESISTED THE TAX, CONTENDING
THAT IT WAS IMPOSED DIRECTLY UPON INTERSTATE COMMERCE IN VIOLATION OF
THE COMMERCE CLAUSE OF THE CONSTITUTION, AND, FAILING OF RELIEF IN THE
SUPREME COURT OF THE STATE, IT BROUGHT THE CASE HERE ON WRIT OF ERROR. 
THIS COURT AFFIRMED, CONCLUDING THAT THE TAX WAS "MEASURED  ...  BY THE
NET PROCEEDS FROM THIS PART OF PLAINTIFF'S BUSINESS, ALONG WITH A LIKE
IMPOSITION UPON ITS INCOME DERIVED FROM OTHER SOURCES, AND IN THE SAME
WAY THAT OTHER CORPORATIONS DOING BUSINESS WITHIN THE STATE ARE TAXED
UPON THAT PROPORTION OF THEIR INCOME DERIVED FROM BUSINESS TRANSACTED
...  WITHIN THE STATE  ...  ."  247 U.S., AT 329. 

IT WOULD SEEM TOO OBVIOUS FOR DEBATE THAT IF A TAXPAYER MAINTAINS ITS
FACTORY AND PRODUCES ALL OF ITS GOODS IN ONE STATE BUT SELLS THE WHOLE
IN OTHER STATES IN INTERSTATE COMMERCE, IT HAS DERIVED SOME PORTION OF
ITS INCOME IN THE STATE OF MANUFACTURE OR PRODUCTION.  IT SHOULD BE
OBVIOUS, TOO, THAT WHERE SUCH A MANUFACTURER HAS SOLD SOME OF ITS
PRODUCTS LOCALLY AND OTHERS OF THEM IN INTERSTATE COMMERCE, THAT THE
MERE RATIO OF INTRASTATE SALES TO INTERSTATE ONES WELL MIGHT NOT
CONSTITUTE A FAIR BASIS FOR DETERMINING WHAT PART OF THE NET INCOME WAS
DERIVED FROM INTRASTATE COMMERCE ON THE ONE HAND, AND INTERSTATE
COMMERCE ON THE OTHER.  INASMUCH AS IT HAS ALWAYS BEEN THOUGHT BY
AMERICAN LAWYERS THAT THE STATES CANNOT TAX INTERSTATE COMMERCE BUT MAY
TAX INTRASTATE COMMERCE, IT HAS BEEN DEEMED NECESSARY FOR THE STATE TO
DETERMINE WHAT PORTION OF THE TOTAL INCOME OF THE TAXPAYER WAS DERIVED
FROM INTRASTATE COMMERCE DONE WITHIN ITS BORDERS AND IS THEREFORE
SUBJECT TO ITS TAXING POWER.  TO ACCOMPLISH THAT PURPOSE, MOST STATES,
LIKE WISCONSIN IN THE U.S. GLUE CASE, AND LIKE MINNESOTA AND GEORGIA IN
THE CASES HERE, HAVE ADOPTED APPORTIONMENT STATUTES, APPLICABLE TO
SITUATIONS WHERE THE TAXPAYER IS DOING BUSINESS BOTH WITHIN AND WITHOUT
THE STATE, WHICH USE, AS ONE OF THE SEVERAL FACTORS, THE TOTAL INCOME
OF THE TAXPAYER IN MEASURING THE PART OF THE INCOME THAT WAS DERIVED
FROM WITHIN THE TAXING STATE.  THOSE WERE THE PRINCIPLES APPLIED IN THE
U.S. GLUE CASE. 

THOSE PRINCIPLES WERE AGAIN MADE UNMISTAKABLY CLEAR, AND WERE
APPLIED, BY MR. JUSTICE BRANDEIS, IN UNDERWOOD TYPEWRITER CO. V.
CHAMBERLAIN, 254 U.S. 113, NEXT RELIED ON BY THE COURT.  THAT CASE DOES
NOT HOLD THAT "EXCLUSIVELY INTERSTATE COMMERCE" MAY BE TAXED BY A
STATE.  IT HOLDS JUST THE CONTRARY.  THERE UNDERWOOD TYPEWRITER
COMPANY, THOUGH A DELAWARE CORPORATION, HAD BECOME A DOMICILIARY OF
CONNECTICUT AND MANUFACTURED ALL OF ITS MACHINES AT ITS FACTORY IN THAT
STATE.  IT SOLD THEM BOTH LOCALLY IN CONNECTICUT AND IN OTHER STATES IN
INTERSTATE COMMERCE.  IN THE YEAR INVOLVED, ABOUT 33 PERCENT OF ITS
DOLLAR VOLUME OF SALES WAS MADE IN CONNECTICUT AND THE REMAINDER IN
OTHER STATES IN INTERSTATE COMMERCE.  TO DETERMINE THE AMOUNT OF
UNDERWOOD'S NET INCOME DERIVED FROM INTRASTATE COMMERCE, CONNECTICUT
APPLIED THE FORMULA PRESCRIBED BY ITS APPORTIONMENT STATUTE.  THIS
RESULTED IN A DETERMINATION THAT 47 PERCENT OF UNDERWOOD'S NET INCOME
HAD BEEN DERIVED FROM INTRASTATE COMMERCE IN CONNECTICUT.  UPON THAT
AMOUNT IT COMPUTED AND ASSESSED ITS 2 PERCENT NET INCOME TAX.  THIS
COURT, IN SUSTAINING THE TAX, OVER UNDERWOOD'S OBJECTION THAT IT
VIOLATED THE COMMERCE CLAUSE OF THE CONSTITUTION, SAID:  "THIS TAX IS
BASED UPON THE NET PROFITS EARNED WITHIN THE STATE.  THAT A TAX
MEASURED BY NET PROFITS IS VALID, ALTHOUGH THESE PROFITS MAY HAVE BEEN
DERIVED IN PART, OR INDEED MAINLY, FROM INTERSTATE COMMERCE IS
SETTLED.  U.S. GLUE CO. V. OAK CREEK, 247 U.S. 321; SHAFFER V. CARTER,
252 U.S. 37, 57.  COMPARE PECK & CO. V. LOWE, 247 U.S. 165  ...  . THE
PROFITS OF THE CORPORATION WERE LARGELY EARNED BY A SERIES OF
TRANSACTIONS BEGINNING WITH MANUFACTURE IN CONNECTICUT AND ENDING WITH
SALE IN OTHER STATES.  IN THIS IT WAS TYPICAL OF A LARGE PART OF THE
MANUFACTURING BUSINESS CONDUCTED IN THE STATE.  THE LEGISLATURE IN
ATTEMPTING TO PUT UPON THIS BUSINESS ITS FAIR SHARE OF THE BURDEN OF
TAXATION WAS FACED WITH THE IMPOSSIBILITY OF ALLOCATING SPECIFICALLY
THE PROFITS EARNED BY THE PROCESSES CONDUCTED WITHIN ITS BORDERS.  IT,
THEREFORE, ADOPTED A METHOD OF APPORTIONMENT WHICH, FOR ALL THAT
APPEARS IN THIS RECORD, REACHED, AND WAS MEANT TO REACH, ONLY THE
PROFITS EARNED WITHIN THE STATE."  254 U.S., AT 120-121. 

THE COURT NEXT TAKES UP THE CASE OF MEMPHIS NATURAL GAS CO. V.
BEELER, 315 U.S. 649.  THAT CASE DOES NOT AT ALL HOLD THAT "EXCLUSIVELY
INTERSTATE COMMERCE" MAY BE TAXED BY A STATE.  IT, TOO, HOLDS JUST THE
CONTRARY.  THERE MEMPHIS NATURAL GAS COMPANY PURCHASED GAS IN LOUISIANA
WHICH IT TRANSPORTED THROUGH ITS INTERSTATE PIPE LINE TO TENNESSEE
WHERE IT SOLD 20 PERCENT OF IT IN INTERSTATE COMMERCE, BUT IT DELIVERED
80 PERCENT OF IT TO MEMPHIS POWER & LIGHT COMPANY.  "THAT COMPANY
DISTRIBUTES IT TO CONSUMERS UNDER A CONTRACT WITH TAXPAYER WHICH THE
SUPREME COURT OF TENNESSEE HAS FOUND TO BE A JOINT UNDERTAKING OF THE
TWO COMPANIES WHEREBY TAXPAYER FURNISHES GAS FROM ITS PIPELINE, THE
MEMPHIS COMPANY FURNISHES FACILITIES AND SERVICE FOR DISTRIBUTION AND
SALE TO CONSUMERS, AND THE PROCEEDS OF THE SALE, AFTER DEDUCTION OF
SPECIFIED COSTS AND EXPENSES, ARE DIVIDED BETWEEN THE TWO COMPANIES." 
315 U.S., AT 652.  A TENNESSEE STATUTE IMPOSED A TAX ON ALL FOREIGN AND
DOMESTIC CORPORATIONS OF "THREE PERCENT.  OF THE NET EARNINGS  ...
ARISING FROM BUSINESS DONE WHOLLY WITHIN THE STATE, EXCLUDING EARNINGS
ARISING FROM INTERSTATE COMMERCE."  IBID.  ACTING UNDER THAT STATUTE, A
TAX "WAS LAID ON (THE TAXPAYER'S) NET EARNINGS FROM THE DISTRIBUTION OF
GAS UNDER ITS CONTRACT WITH THE MEMPHIS COMPANY."  315 U.S., AT 653. 
THIS COURT SAID THAT "IF THE SUPREME COURT OF TENNESSEE CORRECTLY
CONSTRUED TAXPAYER'S CONTRACT WITH THE MEMPHIS COMPANY AS ESTABLISHING
A PROFIT-SHARING JOINT ADVENTURE IN THE DISTRIBUTION OF GAS TO
TENNESSEE CONSUMERS, THE TAXPAYER'S NET EARNINGS UNDER THE CONTRACT
WERE SUBJECT TO LOCAL TAXATION."  315 U.S., AT 653-654.  THIS COURT
THEN FOUND THAT THE SUPREME COURT OF TENNESSEE HAD CORRECTLY CONSTRUED
THE CONTRACT AND THAT THE TAXPAYER'S ACTIVITIES "CONSTITUTED
PARTICIPATION IN THE BUSINESS OF DISTRIBUTING THE GAS TO CONSUMERS
AFTER ITS DELIVERY INTO THE SERVICE PIPES OF THE MEMPHIS COMPANY," AND
SUSTAINED THE TAX, CONCLUDING: "THERE IS NO CONTENTION OR SHOWING HERE
THAT THE TAX ASSESSED IS NOT UPON NET EARNINGS JUSTLY ATTRIBUTABLE TO
TENNESSEE."  315 U.S., AT 656, 657. 

IT IS TRUE THAT MR. CHIEF JUSTICE STONE'S OPINION IN THE BEELER CASE
CONTAINS THE FOLLOWING LANGUAGE AT PAGE 656: 

"IN ANY CASE, EVEN IF TAXPAYER'S BUSINESS WERE WHOLLY INTERSTATE
COMMERCE, A NONDISCRIMINATORY TAX BY TENNESSEE UPON THE NET INCOME OF A
FOREIGN CORPORATION HAVING A COMMERCIAL DOMICILE THERE, CF. WHEELING
STEEL CORP. V. FOX, (298 U.S. 193), OR UPON NET INCOME DERIVED FROM
WITHIN THE STATE, SHAFFER V. CARTER, 252 U.S. 37, 57; WISCONSIN V.
MINNESOTA MINING CO., 311 U.S. 452; CF. NEW YORK EX REL. COHN V.
GRAVES, 300 U.S. 308, IS NOT PROHIBITED BY THE COMMERCE CLAUSE ON WHICH
ALONE TAXPAYER RELIES.  U.S. GLUE CO. V. OAK CREEK, 247 U.S. 321;
UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, 245 U.S. 113, 119-20  ...  ." 

THE FIRST SENTENCE OF THAT QUOTATION CAUSED MR. JUSTICE BURTON TO
SAY, IN SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602, 609, NOTE 6,
THAT THE STATEMENT WAS "NOT ESSENTIAL TO THE DECISION IN THE CASE." 
BUT IT IS A MISTAKE TO SAY THAT MR. CHIEF JUSTICE STONE'S LANGUAGE EVEN
COMES NEAR HOLDING THAT EXCLUSIVELY INTERSTATE COMMERCE MAY BE TAXED BY
A STATE.  NOTE THAT HE SPOKE OF A FOREIGN CORPORATION "HAVING A
COMMERCIAL DOMICILE" IN THE TAXING STATE.  THAT CONNOTES THE CONDUCT OF
INTRASTATE COMMERCE IN THE TAXING STATE, SUCH AS WAS INVOLVED IN THE
FOX CASE WHICH HE CITED, I.E., THE MAINTENANCE IN THE TAXING STATE OF
THE TAXPAYER'S "PRINCIPAL OFFICE" IN WHICH ITS PRINCIPAL OFFICERS WERE
LOCATED AND CONDUCTED THEIR BUSINESS, AND WHERE A DUPLICATE STOCK
LEDGER AND THE RECORDS OF CAPITAL STOCK TRANSACTIONS OF THE TAXPAYER
WERE CONTINUOUSLY KEPT.  OF COURSE THAT CONDUCT AMOUNTED TO THE DOING
OF INTRASTATE COMMERCE, AND NATURALLY THE STATE COULD TAX THAT
INTRASTATE COMMERCE.  AND THAT'S ALL THE STATE DID IN FOX.  INTERSTATE
COMMERCE WAS NOT TAXED EITHER IN BEELER OR IN FOX. 

THE COURT THEN CITES BASS, RATCLIFF & GRETTON, LTD., V. STATE TAX
COMMISSION, 266 U.S. 271, AND NORFOLK & W.R. CO. V. NORTH CAROLINA, 297
U.S. 682.  BUT FROM THE COURT'S OWN RECITALS RESPECTING THOSE CASES IT
APPEARS THAT THE TAXPAYERS THERE "CARRIED ON SUBSTANTIAL LOCAL
ACTIVITIES" WITHIN THE TAXING STATES, WHICH PERMITTED THE STATES TO LAY
TAXES ON THAT INTRASTATE COMMERCE, "MEASURED ON A PROPORTIONAL
FORMULA."  THOSE CASES ARE EXACTLY IN LINE WITH THE U.S. GLUE,
UNDERWOOD, AND BEELER CASES.  THEY DID NOT SUSTAIN A STATE TAX ON
EXCLUSIVELY INTERSTATE COMMERCE. 

THE COURT NEXT CITES THIS COURT'S PER CURIAM IN WEST PUBLISHING CO.
V. MCCOLGAN, 328 U.S. 823, AND QUOTES FROM THE CALIFORNIA OPINION,
WHICH WAS THERE AFFIRMED, ONLY THE FOLLOWING:  "THE EMPLOYEES WERE
GIVEN SPACE IN THE OFFICES OF ATTORNEYS IN RETURN FOR THE USE OF
PLAINTIFF'S BOOKS STORED IN SUCH OFFICES."  IT WILL BE SEEN BY
REFERENCE TO THE CALIFORNIA OPINION THAT THE CALIFORNIA COURT HAD FOUND
CONSIDERABLY MORE INTRASTATE COMMERCE.  IT HAD FOUND THAT THE TAXPAYER
"REGULARLY EMPLOYED SOLICITORS IN (THAT) STATE WHO  ...  WERE
AUTHORIZED TO RECEIVE PAYMENTS ON ORDERS TAKEN BY THEM, TO COLLECT
DELINQUENT ACCOUNTS, AND TO MAKE ADJUSTMENTS IN CASE OF COMPLAINTS BY
CUSTOMERS, (AND WHO) WERE GIVEN SPACE IN THE OFFICES OF ATTORNEYS IN
RETURN FOR THE USE OF (THE TAXPAYER'S) BOOKS STORED IN SUCH OFFICES
(WHICH WERE) ADVERTISED AS ITS LOCAL OFFICES  ...  ."  27 CAL. 2D 705,
707, 166 P.2D 861, 862.  THAT FINDING ESTABLISHED THE USUAL CRITERIA
WHICH THIS COURT HAS CONSISTENTLY HELD TO CONSTITUTE THE DOING OF
INTRASTATE COMMERCE.  CALIFORNIA DETERMINED AND TAXED ONLY THE AMOUNT
OF THAT INTRASTATE COMMERCE.  IT DID NOT TAX ANY INTERSTATE COMMERCE. 
THIS COURT IN ITS PER CURIAM AFFIRMANCE CITED THE LANDMARK COMMERCE
CLAUSE CASES OF U.S. GLUE CO. V. OAK CREEK, SUPRA; MEMPHIS NATURAL GAS
CO. V. BEELER, SUPRA, AND THE LANDMARK DUE PROCESS CLAUSE CASE OF
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310.  SURELY THIS MAKES
IT CLEAR THAT AT LEAST THIS COURT DID NOT SUSTAIN ANY TAX ON INTERSTATE
COMMERCE. 

THE COURT'S QUOTATION FROM WISCONSIN V. MINNESOTA MINING &
MANUFACTURING CO., 311 U.S. 452, SHOWS ON ITS FACE THAT WISCONSIN THERE
TAXED ONLY INCOME "ATTRIBUTABLE TO EARNINGS WITHIN THE TAXING STATE
...  ." 

SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602, IS QUITE CONSISTENT
WITH THE PRIOR CASES.  THERE, BY A PROCESS OF ELIMINATION, THE COURT
DETERMINED WHAT THE TAX WAS NOT IN ARRIVING AT WHAT IT WAS, AND
CONCLUDED THAT IT WAS A TAX WHICH ATTACHED "SOLELY TO THE FRANCHISE OF
PETITIONER TO DO INTERSTATE BUSINESS."  THE COURT THEN SAID: 

"THIS COURT HERETOFORE HAS STRUCK DOWN, UNDER THE COMMERCE CLAUSE,
STATE TAXES UPON THE PRIVILEGE OF CARRYING ON A BUSINESS THAT WAS
EXCLUSIVELY INTERSTATE IN CHARACTER.  THE CONSTITUTIONAL INFIRMITY OF
SUCH A TAX PERSISTS NO MATTER HOW FAIRLY IT IS APPORTIONED TO BUSINESS
DONE WITHIN THE STATE."  (CITING ALPHA PORTLAND CEMENT CO. V.
MASSACHUSETTS, 268 U.S. 203; OZARK PIPE LINE CORP. V. MONIER, 266 U.S.
555; AND REFERRING, FOR COMPARISON, TO INTERSTATE PIPE LINE CO. V.
STONE, 337 U.S. 662, 669; JOSEPH V. CARTER & WEEKES CO., 330 U.S. 422;
FREEMAN V. HEWIT, 329 U.S. 249. 

"OUR CONCLUSION IS NOT IN CONFLICT WITH THE PRINCIPLE THAT, WHERE A
TAXPAYER IS ENGAGED BOTH IN INTRASTATE AND INTERSTATE COMMERCE, A STATE
MAY TAX THE PRIVILEGE OF CARRYING ON INTRASTATE BUSINESS AND, WITHIN
REASONABLE LIMITS, MAY COMPUTE THE AMOUNT OF THE CHARGE BY APPLYING THE
TAX RATE TO A FAIR PROPORTION OF THE TAXPAYER'S BUSINESS DONE WITHIN
THE STATE  ...  ."  340 U.S., AT 609-610. 

IS IT NOT PLAIN THAT THIS RECENT CASE HOLDS THAT "EXCLUSIVELY"
INTERSTATE COMMERCE MAY NOT BE TAXED BY A STATE? 

WITH THIS DEMONSTRATION OF THE HOLDINGS IN THE COMMERCE CASES RELIED
UPON BY THE COURT, SURELY WE CAN REPEAT, WITH THE CONVICTION OF
DEMONSTRATED TRUTH, OUR STATEMENT THAT NONE OF THE CASES RELIED ON BY
THE COURT SUPPORTS ITS HOLDING "THAT NET INCOME FROM THE INTERSTATE
OPERATIONS OF A FOREIGN CORPORATION MAY BE SUBJECTED TO STATE TAXATION
PROVIDED THE LEVY IS NOT DISCRIMINATORY AND IS PROPERLY APPORTIONED TO
LOCAL ACTIVITIES WITHIN THE TAXING STATE  ...  ."  THE FACT THAT SUCH
TAXES MAY BE FAIRLY OR "PROPERLY APPORTIONED" IS WITHOUT LEGAL
CONSEQUENCE, FOR "THE CONSTITUTIONAL INFIRMITY OF SUCH A TAX PERSISTS
NO MATTER HOW FAIRLY IT IS APPORTIONED TO BUSINESS DONE WITHIN THE
STATE."  SPECTOR MOTOR SERVICE V. O'CONNOR, SUPRA, AT 609.  THAT THIS
COURT HAS ALWAYS SUSTAINED STATE TAXES ON FAIRLY DETERMINED AMOUNTS OF
INTRASTATE INCOME SHOULD BE EVIDENT ENOUGH FROM THE SHOWN FACT THAT IT
HAS STRUCK THEM DOWN ONLY WHEN THERE WAS NONE.    THE COURT SAYS "WE
BELIEVE THAT THE RATIONALE OF THESE CASES, INVOLVING INCOME LEVIES BY
STATES, CONTROLS THE ISSUES HERE."  I AGREE THAT THE RATIONALE OF THOSE
CASES CONTROLS THE ISSUES HERE.  BUT I CANNOT AGREE THAT THOSE CASES
INVOLVED LIKE "INCOME LEVIES BY STATES."  THEY INVOLVED LEVIES OF
INCOME TAXES ON INTRASTATE COMMERCE, NOT ON "EXCLUSIVELY INTERSTATE
COMMERCE."  WHEREAS, HERE BOTH THE MINNESOTA AND GEORGIA COURTS HAVE
FOUND THAT THE INCOME TAXED BY THOSE STATES HAD DERIVED "EXCLUSIVELY
(FROM) INTERSTATE COMMERCE," AND THAT THE TAX WAS NOT LEVIED UPON ANY
INTRASTATE COMMERCE FOR THERE WAS NONE. 

IN THESE CIRCUMSTANCES, I SUBMIT IT IS IDLE TO SAY THAT THE TAXES
WERE NOT LAID "ON" INTERSTATE COMMERCE, BUT ON THE TAXPAYER'S GENERAL
INCOME AFTER ALL COMMERCE HAD ENDED, AND, THEREFORE, DID NOT BURDEN,
NOR HENCE REGULATE, INTERSTATE COMMERCE.  FOR IN ADDITION TO THE
PLAINNESS OF THE FACT, THE COURTS OF MINNESOTA AND GEORGIA HAVE
EXPLICITLY HELD IN THESE CASES THAT THE INCOME INVOLVED WAS DERIVED
"EXCLUSIVELY FROM INTERSTATE COMMERCE," AND THAT THE TAXES WERE LAID ON
THAT INCOME.  THE TAXES DO NOT PURPORT TO HAVE BEEN, AND COULD NOT HAVE
BEEN, LAID ON ANY INCOME DERIVED FROM INTRASTATE COMMERCE IN THOSE
STATES FOR THERE WAS NONE.  IT NECESSARILY FOLLOWS THAT THE TAXES WERE
"LAID ON INCOME FROM (INTERSTATE COMMERCE) BECAUSE OF ITS SOURCE," PECK
& CO. V. LOWE, SUPRA, AT 174, JUST AS IN SPECTOR MOTOR SERVICE V.
O'CONNOR, SUPRA. 

THE COMMERCE CLAUSE DENIES STATE POWER TO REGULATE INTERSTATE
COMMERCE.  IT VESTS THAT POWER EXCLUSIVELY IN CONGRESS.  DIRECT
TAXATION OF "EXCLUSIVELY INTERSTATE COMMERCE" IS A SUBSTANTIAL
REGULATION OF IT AND, THEREFORE, IN THE ABSENCE OF CONGRESSIONAL
CONSENT, THE STATES MAY NOT DIRECTLY TAX IT.  THIS COURT HAS SO HELD
EVERY TIME THE QUESTION HAS BEEN PRESENTED HERE UNTIL TODAY.  WITHOUT
CONGRESSIONAL CONSENT, THE STATES OF MINNESOTA AND GEORGIA HAVE LAID
TAXES DIRECTLY ON WHAT THEY ADMIT WAS "EXCLUSIVELY INTERSTATE
COMMERCE."  HENCE, IN MY VIEW, THOSE LEVIES PLAINLY VIOLATED THE
COMMERCE CLAUSE OF THE CONSTITUTION AND CANNOT STAND CONSISTENTLY
THEREWITH AND WITH OUR PRIOR CASES.  I WOULD, THEREFORE, REVERSE THE
JUDGMENT OF THE SUPREME COURT OF MINNESOTA IN NO. 12 AND AFFIRM THE
JUDGMENT OF THE SUPREME COURT OF GEORGIA IN NO. 33. 

FN1  NORTHWESTERN DID NOT QUALIFY, UNDER MINNESOTA LAWS, TO DO
BUSINESS IN THAT STATE.  DURING THE YEARS INVOLVED IT MAINTAINED A
SMALL SALES OFFICE IN MINNEAPOLIS WHERE IT EMPLOYED TWO SALESMEN AND A
SECRETARY.  HER DUTIES WERE WHOLLY CLERICAL.  IT ALSO EMPLOYED FROM TWO
TO THREE SALESMEN AT OTHER POINTS IN MINNESOTA WHO WORKED OUT OF THEIR
HOMES.  APART FROM A SMALL AMOUNT OF FURNITURE IN ITS MINNEAPOLIS
OFFICE AND TWO SALESMEN'S AUTOMOBILES, IT OWNED NO PROPERTY WITHIN THE
STATE, NOR DID IT HAVE A BANK ACCOUNT THEREIN, AND ALL SALARIES AND
REIMBURSABLE EXPENSES OF THE SALESMEN AND THE SECRETARY, OFFICE RENT,
TELEPHONE BILLS AND ALL OTHER EXPENSES OF THE MINNEAPOLIS OFFICE, WERE
PAID DIRECTLY FROM THE HOME OFFICE.  THE SALESMEN SOLICITED AND TOOK
ORDERS FROM DEALERS BUT THEY WERE NOT AUTHORIZED TO ACCEPT ORDERS OR
MAKE CONTRACTS FOR THE COMPANY, NOR WERE THEY AUTHORIZED TO RECEIVE
PAYMENTS, COLLECT ACCOUNTS OR ADJUST CLAIMS.  ORDERS WHICH THEY
RECEIVED WERE MAILED TO THE HOME OFFICE FOR APPROVAL OF CREDIT AND FOR
ACCEPTANCE OR REJECTION.  THE ORDERS WERE ACKNOWLEDGED AND ACCEPTED OR
REJECTED IN WRITING, MAILED FROM THE HOME OFFICE DIRECTLY TO THE
PURCHASERS.  ACCEPTED ORDERS WERE FILLED BY DELIVERY OF THE CEMENT TO A
RAIL CARRIER, F.O.B. PLANT AT MASON CITY, AND CONSIGNED TO THE
PURCHASERS.  SALES INVOICES WERE PREPARED IN AND MAILED FROM THE HOME
OFFICE DIRECTLY TO THE PURCHASERS WHO MADE PAYMENT DIRECTLY TO THE
COMPANY AT ITS HOME OFFICE.  THE SALESMEN ALSO CALLED ON CONTRACTORS
AND OTHER USERS OF CEMENT, NOT TO SOLICIT ORDERS, BUT FOR THE PURPOSE
OF ACQUAINTING THEM WITH THE MERITS OF NORTHWESTERN'S PRODUCT AND OF
ADVISING THEM OF THE NAMES OF THE LOCAL DEALERS WHERE IT MIGHT BE
PURCHASED.  THERE WAS EVIDENCE WHICH MIGHT HAVE SUPPORTED A FINDING
THAT THESE SALESMEN SOMETIMES, IN EFFECT, TOOK ORDERS FROM CONTRACTORS
FOR, AND DELIVERED THEM TO, LOCAL DEALERS WHO STOCKED NORTHWESTERN'S
CEMENT, AND THUS WERE ENGAGED IN THE LOCAL BUSINESS OF SELLING CEMENT
FOR SUCH DEALERS, CHENEY BROTHERS CO. V. MASSACHUSETTS, 246 U.S. 147,
155.  BUT NO SUCH FINDING WAS MADE, AND THERE IS MORE THAN COLORABLE
BASIS FOR BELIEVING THAT MINNESOTA DID NOT PRESS FOR SUCH A FINDING, AS
ANY SUCH PRACTICE COULD EASILY BE ENDED BY NORTHWESTERN AND MINNESOTA'S
EVIDENT OBJECT WAS NOT TO REST ON SUCH A BASIS, BUT TO OBTAIN AN
ADJUDICATION THAT ITS STATUTE, SEC. 290.03, VALDILY IMPOSED A TAX UPON
NORTHWESTERN'S NET INCOME FROM MINNESOTA CUSTOMERS THOUGH DERIVED
"EXCLUSIVELY (FROM) INTERSTATE COMMERCE." 

FN2  MINNESOTA STATUTES, 1957, SEC. 290.19, PROVIDES, IN SUBSTANCE,
THAT WHERE BUSINESS IS DONE PARTLY WITHIN AND PARTLY WITHOUT THIS
STATE" THERE SHALL BE APPORTIONED AND ALLOCATED TO MINNESOTA, AS INCOME
DERIVED FROM THE INTRASTATE COMMERCE DONE IN THAT STATE, AN AMOUNT
EQUAL TO THE RATIO WHICH THE TAXPAYER'S (A) SALES MADE WITHIN THAT
STATE, (B) TANGIBLE PROPERTY OWNED OR USED IN THAT STATE, AND (C) TOTAL
PAYROLLS PAID IN THAT STATE BEAR TO THE TAXPAYER'S TOTALS OF THOSE
FACTORS. 

FN3  TO FACILITATE THE CONDUCT OF ITS COMMERCE, STOCKHAM KEEPS A
STOCK OF ITS PRODUCTS IN PUBLIC WAREHOUSES IN BIRMINGHAM, CHICAGO,
HOUSTON AND VERNON (CALIFORNIA), AND MAINTAINS IN EACH OF THOSE CITIES,
AND IN EACH OF 8 OTHER WIDELY SEPARATED INDUSTRIAL CENTERS, INCLUDING
ATLANTA, A SMALL SALES OFFICE.  IT HAS NOT QUALIFIED, UNDER GEORGIA
LAWS, TO DO BUSINESS IN THAT STATE.  ITS ATLANTA OFFICE, WHICH IS
LISTED IN THE ATLANTA TELEPHONE AND CITY DIRECTORIES, IS STAFFED WITH
ONE SALESMAN AND A SECRETARY.  HER DUTIES ARE ENTIRELY CLERICAL.  THE
SALESMAN SPENDS ABOUT ONE-THIRD OF HIS WORKING TIME IN GEORGIA, AND THE
REMAINDER IN FOUR OTHER SOUTHEASTERN STATES, CALLING ON PERSONS WHO ARE
IN POSITION TO RECOMMEND OR SPECIFY THE USE OF PARTICULAR BUILDING
SUPPLIES IN CONSTRUCTION WORK, SUCH AS ARCHITECTS, ENGINEERS AND
CONTRACTORS, AND ON INDEPENDENT WHOLESALERS AND JOBBERS, ENDEAVORING TO
IMPRESS THEM WITH THE MERITS OF, AND TO INDUCE THEM TO SPECIFY OR
RECOMMEND THE USE OF, STOCKHAM'S PRODUCTS.  ALTHOUGH HE HAS NO
AUTHORITY TO ACCEPT ORDERS OR TO MAKE CONTRACTS FOR THE COMPANY, HE
SOLICITS ORDERS FROM WHOLESALERS AND JOBBERS, AND TRANSMITS SUCH AS HE
RECEIVES TO THE HOME OFFICE FOR APPROVAL OF CREDIT AND ACCEPTANCE OR
REJECTION, BUT "FOR THE MOST PART" ORDERS ARE MAILED DIRECTLY BY THE
PURCHASERS TO THE HOME OFFICE IN BIRMINGHAM.  ACCEPTED ORDERS ARE
FILLED BY DELIVERY OF THE GOODS TO THE PURCHASERS, OR TO A COMMON
CARRIER CONSIGNED TO THE PURCHASERS, AT THE BIRMINGHAM PLANT.  SALES
INVOICES ARE PREPARED AND MAILED BY THE HOME OFFICE DIRECTLY TO THE
PURCHASERS WHO REMIT TO THE HOME OFFICE.  THE SALESMAN DOES NOT RECEIVE
PAYMENTS, COLLECT ACCOUNTS OR ADJUST CLAIMS.  EXCEPT FOR THE SMALL
AMOUNT OF OFFICE FURNITURE IN ITS ATLANTA SALES OFFICE THE COMPANY HAS
NO PROPERTY IN GEORGIA, NOR DOES IT HAVE A BANK ACCOUNT THERE, AND THE
SALARIES OF THE SALESMAN AND SECRETARY AND THEIR REIMBURSABLE EXPENSES,
THE OFFICE RENT, TELEPHONE BILLS AND ALL OTHER EXPENSES OF THE ATLANTA
OFFICE ARE PAID DIRECTLY FROM THE HOME OFFICE. 

FN4  CODE OF GEORGIA, 1933, AS AMENDED, SEC. 92-3113(4) PROVIDES THAT
"WHERE INCOME IS DERIVED FROM THE MANUFACTURE, PRODUCTION, OR SALE OF
TANGIBLE PERSONAL PROPERTY, THE PORTION OF THE NET INCOME THEREFROM
ATTRIBUTABLE TO PROPERTY OWNED OR BUSINESS DONE WITHIN THIS STATE SHALL
BE TAKEN TO BE THE PORTION ARRIVED AT BY" THE ARITHMETICAL AVERAGE
WHICH THE RATIOS OF THE TAXPAYER'S (A) INVENTORIES OF PRODUCTS HELD IN
THE STATE, (B) COMPENSATION PAID OR INCURRED IN THE STATE, AND (C)
GROSS RECEIPTS FROM BUSINESS DONE WITHIN THE STATE BEAR TO THE
TAXPAYER'S TOTALS OF THOSE FACTORS. 
..END :





CAMMARANO V. UNITED STATES 358 U.S. 498 


NO. 29.  ARGUED NOVEMBER 19, 1958 - DECIDED FEBRUARY 24, 1959* - 246
F.2D 751 AND 251 F.2D 724, AFFIRMED. 

*TOGETHER WITH NO. 50, F. STRAUSS & SON, INC., OF ARKANSAS V.
COMMISSIONER OF INTERNAL REVENUE, ON CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 


1.  IN COMPUTING FEDERAL INCOME TAXES, SUMS PAID BY A TAXPAYER TO AN
ORGANIZATION WHICH EXPENDED THEM IN EXTENSIVE PUBLICITY PROGRAMS
DESIGNED TO PERSUADE VOTERS TO CAST THEIR BALLOTS AGAINST PROPOSED
STATE INITIATIVE LEGISLATION WHICH WOULD HAVE SERIOUSLY AFFECTED OR
WHOLLY DESTROYED THE TAXPAYER'S BUSINESS MAY NOT BE DEDUCTED FROM GROSS
INCOME AS "ORDINARY AND NECESSARY" BUSINESS EXPENSES UNDER SEC.
23(A)(1)(A) OF THE INTERNAL REVENUE CODE OF 1939, AS INTERPRETED BY
SECS. 29.23(O)-1 AND 29.23(Q)-1 OF TREASURY REGULATIONS 111, WHICH
FORBID THE DEDUCTION OF SUMS EXPENDED FOR "THE PROMOTION OR DEFEAT OF
LEGISLATION."  PP. 499-507. 

(A)  THE REGULATIONS APPLY TO EXPENDITURES MADE IN CONNECTION WITH
EFFORTS TO PROMOTE OR DEFEAT LEGISLATION BY PERSUASION OF THE GENERAL
PUBLIC AS WELL AS EFFORTS TO INFLUENCE LEGISLATIVE BODIES DIRECTLY
THROUGH "LOBBYING."  PP. 504-505. 

(B)  THEY APPLY TO EXPENSES INCURRED IN FURTHERING OR COMBATTING
PROPOSED INITIATIVE MEASURES AS WELL AS BILLS PENDING BEFORE
LEGISLATURES.  PP. 505-507. 

2.  AS SO INTERPRETED, THE REGULATIONS ARE NOT IN CONFLICT WITH SEC.
23(A)(1)(A) AND ARE A VALID EXERCISE OF THE COMMISSIONER'S RULE-MAKING
POWER.  PP. 507-512. 

3.  AS THUS CONSTRUED AND APPLIED, THE REGULATIONS DO NOT PRESENT A
SUBSTANTIAL CONSTITUTIONAL QUESTION UNDER THE FIRST AMENDMENT.  SPEISER
V. RANDALL, 357 U.S. 513, DISTINGUISHED.  PP. 512-513. 

CAMMARANO ET UX. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THESE CASES, COMING TO US FROM TWO DIFFERENT CIRCUITS, PRESENT
IDENTICAL ISSUES, AND MAY APPROPRIATELY BE DEALT WITH TOGETHER IN ONE
OPINION.  THE ISSUES INVOLVE THE INTERPRETATION AND VALIDITY OF TREAS.
REG. 111, SEC. 29.23(O)-1 AND SEC. 29.23(Q)-1 AS APPLIED BY THE COURTS
BELOW TO DENY DEDUCTION AS "ORDINARY AND NECESSARY" BUSINESS EXPENSES
UNDER SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE OF 1939 (FN1) TO
SUMS EXPENDED BY THE RESPECTIVE TAXPAYER PETITIONERS IN FURTHERANCE OF
PUBLICITY PROGRAMS DESIGNED TO HELP SECURE THE DEFEAT OF INITIATIVE
MEASURES THEN PENDING BEFORE THE VOTERS OF THE STATES OF WASHINGTON AND
ARKANSAS. 

THE TREASURY REGULATIONS IN QUESTION EACH PROVIDES IN PERTINENT PART
THAT NO DEDUCTION SHALL BE ALLOWED TO "SUMS OF MONEY EXPENDED FOR
LOBBYING PURPOSES, THE PROMOTION OR DEFEAT OF LEGISLATION, THE
EXPLOITATION OF PROPAGANDA, INCLUDING ADVERTISING OTHER THAN TRADE
ADVERTISING  ...  ."  (FN2) BOTH COURTS OF APPEALS HELD THAT THESE
PROVISIONS RENDER NONDEDUCTIBLE SUMS PAID BY PETITIONERS TO
ORGANIZATIONS WHICH EXPENDED THEM IN EXTENSIVE PUBLICITY PROGRAMS
DESIGNED TO PERSUADE THE VOTERS TO CAST THEIR BALLOTS AGAINST STATE
INITIATIVE MEASURES, EVEN THOUGH THE PASSAGE OF THOSE MEASURES WOULD
HAVE SERIOUSLY AFFECTED, OR INDEED WHOLLY DESTROYED, THE TAXPAYERS'
BUSINESSES - AND THAT SO INTERPRETED THE REGULATIONS ARE A VALID
EXERCISE OF THE COMMISSIONER'S RULE-MAKING POWER.  WE GRANTED
CERTIORARI BECAUSE OF THE RECURRING NATURE OF THE QUESTION, AND BECAUSE
OF ITS IMPORTANCE TO THE PROPER ADMINISTRATION OF THE INTERNAL REVENUE
LAWS.  355 U.S. 952; 356 U.S. 966. 

A BRIEF REVIEW OF THE FACTS IN THE TWO CASES IS NECESSARY TO AN
UNDERSTANDING OF THE ISSUES. 

NO. 29:  IN 1948 PETITIONERS WILLIAM AND LOUISE CAMMARANO, HUSBAND
AND WIFE, JOINTLY OWNED A ONE-FOURTH INTEREST IN A PARTNERSHIP ENGAGED
IN THE DISTRIBUTION OF BEER AT WHOLESALE IN THE STATE OF WASHINGTON. 
THE PARTNERSHIP WAS A MEMBER OF THE WASHINGTON BEER WHOLESALERS
ASSOCIATION.  IN DECEMBER 1947 THE ASSOCIATION HAD ESTABLISHED A TRUST
FUND AS A REPOSITORY FOR ASSESSMENTS COLLECTED FROM ITS MEMBERS TO HELP
FINANCE A STATEWIDE PUBLICITY PROGRAM URGING THE DEFEAT OF "INITIATIVE
TO THE LEGISLATURE NO. 13," A MEASURE TO BE SUBMITTED TO THE ELECTORATE
AT THE GENERAL ELECTION OF NOVEMBER 2, 1948, WHICH WOULD HAVE PLACED
THE RETAIL SALE OF WINE AND BEER IN WASHINGTON EXCLUSIVELY IN THE HANDS
OF THE STATE.  DURING 1948 PETITIONERS' PARTNERSHIP PAID TO THE TRUST
FUND $3,545.15, OF WHICH PETITIONERS' PRO RATA SHARE WAS $886.29.  THE
TRUST FUND COLLECTED A TOTAL OF $53,500, WHICH WAS TURNED OVER TO AN
INDUSTRY ADVISORY COMMITTEE ORGANIZED BY WHOLESALE AND RETAIL WINE AND
BEER DEALERS, WHICH IN TURN EXPENDED IT AS PART OF CONTRIBUTIONS
TOTALING $231,257.10 FOR VARIOUS KINDS OF ADVERTISING DIRECTED TO THE
PUBLIC, NONE OF WHICH REFERRED TO PETITIONERS' WARES AS SUCH AND ALL OF
WHICH URGED DEFEAT OF INITIATIVE NO. 13.  (FN3)  THE INITIATIVE WAS
DEFEATED. 

IN PREPARING THEIR JOINT INCOME TAX RETURN FOR 1948, PETITIONERS
DEDUCTED AS A BUSINESS EXPENSE THE $886.29 PAID TO THE ASSOCIATION'S
TRUST FUND AS THEIR SHARE OF THE PARTNERSHIP ASSESSMENT.  THE DEDUCTION
WAS DISALLOWED BY THE COMMISSIONER, AND PETITIONERS PAID UNDER PROTEST
THE ADDITIONAL SUM THUS DUE AND SUED IN THE DISTRICT COURT FOR REFUND. 
THAT COURT RULED THAT THE PAYMENTS MADE TO THE TRUST FUND WERE
"EXPENDED FOR  ...  THE  ...  DEFEAT OF LEGISLATION" WITHIN THE MEANING
OF TREAS. REG. 111, SEC. 29.23(O)-1 AND WERE THEREFORE NOT DEDUCTIBLE
AS ORDINARY AND NECESSARY BUSINESS EXPENSES UNDER SEC. 23(A)(1)(A) OF
THE INTERNAL REVENUE CODE OF 1939.  THE COURT OF APPEALS AFFIRMED,
HOLDING THE REGULATION APPLICABLE AND VALID AS APPLIED.  246 F.2D 751. 
(FN4) 

NO. 50:  PETITIONER F. STRAUSS & SON, INC., IS A CORPORATION ENGAGED
IN THE WHOLESALE LIQUOR BUSINESS IN ARKANSAS.  IN 1950 AN INITIATIVE
CALLING FOR AN ELECTION ON STATEWIDE PROHIBITION WAS PLACED ON THE
BALLOT TO BE VOTED ON IN THE STATE GENERAL ELECTION ON NOVEMBER 7,
1950.  IN MAY OF THAT YEAR STRAUSS, TOGETHER WITH EIGHT OTHER ARKANSAS
LIQUOR WHOLESALERS, ORGANIZED ARKANSAS LEGAL CONTROL ASSOCIATES, INC.,
AS A MEANS OF COORDINATING THEIR EFFORTS TO PERSUADE THE VOTERS OF
ARKANSAS TO VOTE AGAINST THE PROPOSED PROHIBITION MEASURE.  BETWEEN MAY
30 AND NOVEMBER 30, 1950, ARKANSAS LEGAL CONTROL ASSOCIATES COLLECTED A
TOTAL OF $126,265.84, WHICH WAS DISBURSED FOR VARIOUS FORMS OF
PUBLICITY CONCERNING THE PROPOSED ACT.  (FN5)  STRAUSS' CONTRIBUTION
AMOUNTED TO $9,252.67. 

THE INITIATIVE MEASURE WAS DEFEATED IN THE NOVEMBER ELECTION.  ON ITS
1950 INCOME TAX RETURN STRAUSS DEDUCTED THE $9,252.67 AS A BUSINESS
EXPENSE.  THE COMMISSIONER DISALLOWED THE DEDUCTION AND STRAUSS FILED A
TIMELY PETITION IN THE TAX COURT SEEKING A REDETERMINATION OF THE
DEFICIENCY ASSERTED.  THAT COURT UPHELD THE ACTION OF THE COMMISSIONER
IN DISALLOWING THE CLAIMED DEDUCTION, AND THE COURT OF APPEALS
UNANIMOUSLY AFFIRMED.  251 F.2D 724. 

SINCE 1918 REGULATIONS PROMULGATED BY THE COMMISSIONER UNDER THE
INTERNAL REVENUE CODE HAVE CONTINUOUSLY PROVIDED THAT EXPENDITURES FOR
THE "PROMOTION OR DEFEAT OF LEGISLATION  ...  ," OR FOR ANY OF THE
OTHER PURPOSES SPECIFIED IN THE "CORPORATE" REGULATION NOW BEFORE US,
ARE NOT DEDUCTIBLE FROM GROSS CORPORATE INCOME; AND SINCE 1938
REGULATIONS CONTAINING IDENTICAL LANGUAGE HAVE FORBIDDEN SUCH
DEDUCTIONS FROM INDIVIDUAL INCOME.  (FN6)  DURING THIS PERIOD OF MORE
THAN 40 YEARS THESE REGULATORY PROVISIONS HAVE BEEN BEFORE THIS COURT
ON ONLY ONE OCCASION.  IN TEXTILE MILLS SECURITIES CORP. V.
COMMISSIONER, 314 U.S. 326, IT WAS HELD THAT THE COMMISSIONER PROPERLY
DISALLOWED THE DEDUCTION OF SUMS PAID BY A CORPORATION TO A PUBLICIST
AND TWO LEGAL EXPERTS EMPLOYED TO HELP SECURE THE PASSAGE OF
LEGISLATION DESIGNED TO SECURE THE RETURN OF CERTAIN PROPERTIES IN THIS
COUNTRY SEIZED DURING WORLD WAR I UNDER THE PROVISIONS OF THE TRADING
WITH THE ENEMY ACT.  THIS HOLDING WAS SQUARELY BASED ON THE REGULATORY
PROVISIONS NOW EMBODIED IN TREAS. REG. 111, SEC. 29.23(Q)-1, WHICH WERE
FOUND VALID AND APPLICABLE TO THE FACTS INVOLVED IN THAT CASE, ALTHOUGH
THE VERY BUSINESS OF THE TAXPAYER SEEKING THE DEDUCTION WAS THE
DIRECTION OF THE PUBLICITY PROGRAM IN THE COURSE OF WHICH THE
EXPENDITURES WERE MADE. 

PETITIONERS SUGGEST THAT TEXTILE MILLS IS NOT DISPOSITIVE OF THE
PRESENT CASES, EITHER AS TO THE APPLICABILITY OF THE REGULATIONS UPON
THE FACTS DISCLOSED BY THESE RECORDS OR AS TO THE VALIDITY OF THOSE
REGULATIONS UNDER THE STATUTE IF THEY ARE FOUND TO BE APPLICABLE. 
ESSENTIALLY, PETITIONERS' CONTENTIONS ARE (1) THAT THE REGULATIONS
CANNOT PROPERLY BE CONSTRUED AS APPLICABLE TO EXPENDITURES MADE IN
CONNECTION WITH EFFORTS TO PROMOTE OR DEFEAT THE PASSAGE OF LEGISLATION
BY PERSUASION OF THE GENERAL PUBLIC AS OPPOSED TO DIRECT INFLUENCE ON
LEGISLATIVE BODIES, THAT IS "LOBBYING"; (2) THAT IN ANY CASE THE
REGULATIONS ARE INAPPLICABLE TO EXPENDITURES MADE IN CONNECTION WITH
INITIATIVE MEASURES; AND (3) THAT IF CONSTRUED AS APPLICABLE TO THE
FACTS HERE PRESENTED THE REGULATIONS ARE INVALID AS CONTRARY TO THE
PLAIN TERMS OF SEC. 23(A)(1)(A) OF THE 1939 CODE AND POSSIBLY AS
UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT. 

WE NEED NOT BE LONG DETAINED BY THE QUESTION OF THE APPLICABILITY OF
THE REGULATIONS TO PETITIONER'S EXPENDITURES.  FIRST, WE SEE NO
JUSTIFICATION FOR READING INTO THESE REGULATORY PROVISIONS THE IMPLIED
EXCEPTIONS WHICH PETITIONERS WOULD HAVE US THERE FIND.  WE CANNOT
ACCEPT PETITIONERS' ARGUMENT THAT TEXTILE MILLS SHOULD BE READ AS
LIMITING SUCH PROVISIONS TO DIRECT DEALINGS WITH LEGISLATORS, INSIDIOUS
OR OTHERWISE.  THE DEDUCTIONS WHOSE PROPRIETY WAS BEFORE THE COURT IN
THAT CASE WERE FOR EXPENDITURES, CHARACTERIZED BY THE COURT OF APPEALS
AS BEING FOR "MATTERS OF PUBLICITY, 'INCLUDING THE MAKING OF
ARRANGEMENTS FOR SPEECHES, CONTACTING THE PRESS, IN RESPECT OF
EDITORIAL COMMENTS, AND NEWS ITEMS,'" AND FOR THE PREPARATION OF
"BROCHURES" INVOLVING "A COMPREHENSIVE STUDY OF THE HISTORY OF THE
TREATMENT OF PERSONS AND PROPERTY IN WAR," 117 F.2D 62, 65, 63, ALL
DESIGNED TO INFLUENCE THE OPINIONS OF THE GENERAL PUBLIC.  (FN7)  APART
FROM TEXTILE MILLS, THE COURTS OF APPEALS HAVE UNIFORMLY APPLIED THESE
REGULATIONS TO EXPENDITURES FOR PUBLICITY DIRECTED TO THE GENERAL
PUBLIC ON LEGISLATIVE MATTERS.  SEE, E.G., REVERE RACING ASSN. V.
SCANLON, 232 F.2D 816 (C.A. 1ST CIR.); AMERICAN HARDWARE & EQ. CO. V.
COMMISSIONER, 202 F.2D 126 (C.A. 4TH CIR.); ROBERTS DAIRY CO. V.
COMMISSIONER, 195 F.2D 948 (C.A. 8TH CIR.); SUNSET SCAVENGER CO. V.
COMMISSIONER, 84 F.2D 453 (C.A. 9TH CIR.).  PETITIONERS' READING OF
THESE REGULATIONS WOULD MAKE ALL BUT THE REFERENCE TO "LOBBYING" PURE
SURPLUSAGE.  WE THINK THAT THE REGULATIONS MUST BE CONSTRUED TO MEAN
WHAT THEY SAY - THAT NOT ONLY LOBBYING EXPENSES, BUT ALSO SUMS SPENT
FOR "THE PROMOTION OR DEFEAT OF LEGISLATION, THE EXPLOITATION OF
PROPAGANDA, INCLUDING ADVERTISING OTHER THAN TRADE ADVERTISING" ARE
NONDEDUCTIBLE.  (FN8) 

LIKEWISE UNPERSUASIVE IS PETITIONERS' SUGGESTED DISTINCTION BETWEEN
EXPENSES INCURRED IN ATTEMPTING TO PROMOTE OR DEFEAT LEGISLATION
PENDING BEFORE LEGISLATURES AND THOSE INCURRED IN FURTHERING OR
COMBATTING AN INITIATIVE MEASURE.  WE THINK THAT INITIATIVES ARE
PLAINLY "LEGISLATION" WITHIN THE MEANING OF THESE REGULATIONS.  HAD THE
MEASURES INVOLVED IN THESE CASES BEEN PASSED BY THE PEOPLE OF
WASHINGTON AND ARKANSAS THEY WOULD HAVE HAD THE EFFECT AND STATUS OF
ORDINARY LAWS IN EVERY RESPECT.  THE CONSTITUTIONS OF THE STATES OF
WASHINGTON AND ARKANSAS BOTH EXPLICITLY RECOGNIZE THAT IN PROVIDING FOR
INITIATIVES THEY ARE VESTING LEGISLATIVE POWER IN THE PEOPLE.  (FN9)
EVERY COURT WHICH HAS CONSIDERED THE QUESTION HAS FOUND THESE
PROVISIONS TO BE FULLY AS APPLICABLE TO INITIATIVES AND REFERENDUMS AS
TO ANY OTHER KIND OF LEGISLATION.  SEE REVERE RACING ASSN. V. SCANLON,
SUPRA; OLD MISSION PORTLAND CEMENT CO. V. COMMISSIONER, 69 F.2D 676,
AFFIRMED ON OTHER ISSUES, 293 U.S. 289; MOSBY HOTEL CO. V.
COMMISSIONER, DECIDED OCTOBER 22, 1954, P-H 1954 TC MEM. DEC. PARA.
54,288; MCCLINTOCK-TRUNKEY CO. V. COMMISSIONER, 19 T.C. 297, REVERSED
ON OTHER ISSUES, 217 F.2D 329 (INVOLVING PAYMENTS, LIKE THOSE OF
PETITIONERS CAMMARANO, MADE TO THE WASHINGTON BEER WHOLESALERS
ASSOCIATION IN CONNECTION WITH "INITIATIVE TO THE LEGISLATURE NO.
13"). 

A CONTRARY READING OF THE REGULATIONS WOULD, INDEED, BE ANOMALOUS,
FOR IT WOULD MEAN THAT EXPENSES OF PUBLICITY CAMPAIGNS DIRECTED TO THE
PUBLIC TO INFLUENCE IT IN TURN TO PERSUADE ITS LEGISLATIVE
REPRESENTATIVES TO VOTE FOR OR AGAINST PENDING BILLS WOULD BE
ENCOMPASSED BY THE REGULATIONS AND DENIED DEDUCTIBILITY, WHEREAS A LESS
DILUTED FORM OF PERSUASION AND INFLUENCE, DIRECTED TO THE VOTERS AS
LEGISLATORS, WOULD BE LEFT AT LARGE SO FAR AS THE REGULATIONS ARE
CONCERNED.  WE SEE NO REASON TO GIVE SO ARTIFICIAL AND STRAINED A
CONSTRUCTION TO THE PERTINENT LANGUAGE.  (FN10) 

THE CORNERSTONE OF PETITIONERS' ARGUMENT IS THAT TREAS. REG. 111,
SEC. 29.23(O)-1 AND SEC. 29.23(Q)-1 ARE INVALID IF INTERPRETED TO APPLY
TO THE EXPENDITURES HERE AT ISSUE.  IT IS CONTENDED THAT SUMS EXPENDED
BY A TAXPAYER TO PRESERVE HIS BUSINESS FROM DESTRUCTION ARE DEDUCTIBLE
AS ORDINARY AND NECESSARY BUSINESS EXPENSES UNDER THE CODE AS A MATTER
OF LAW, AND THAT THEREFORE A REGULATION PURPORTING TO DENY
DEDUCTIBILITY TO SUCH EXPENDITURES IS PLAINLY CONTRARY TO THE STATUTE
AND IPSO FACTO INVALID.  PETITIONERS RELY UPON COMMISSIONER V.
HEININGER, 320 U.S. 467, WHERE THIS COURT HELD THAT ATTORNEY'S FEES
INCURRED BY A MAIL-ORDER DENTIST IN RESISTING A POSTAL FRAUD CHARGE
WHICH WOULD HAVE ENDED HIS BUSINESS WERE DEDUCTIBLE AS AN ORDINARY AND
NECESSARY BUSINESS EXPENSE. 

WE DO NOT THINK THAT HEININGER GOVERNS THE PRESENT CASES, NOR THAT IT
ESTABLISHES AS BROAD A RULE OF LAW AS PETITIONERS SUGGEST.  IN
HEININGER THIS COURT HELD NO MORE THAN THAT EXPENDITURES WITHOUT WHICH
A BUSINESS ENTERPRISE WOULD INEVITABLY SUFFER ADVERSE EFFECTS, AND THE
GRANTING OF DEDUCTIBILITY TO WHICH WOULD FRUSTRATE NO "SHARPLY DEFINED
NATIONAL OR STATE POLICIES," 320 U.S., AT 473 (SEE ALSO COMMISSIONER V.
SULLIVAN, 356 U.S. 27), WERE DEDUCTIBLE AS ORDINARY AND NECESSARY
BUSINESS EXPENSES UNDER THE STATUTE.  (FN11)  HERE THE DEDUCTIONS
SOUGHT ARE PROHIBITED BY REGULATIONS WHICH THEMSELVES CONSTITUTE AN
EXPRESSION OF A SHARPLY DEFINED NATIONAL POLICY, FURTHER DEMONSTRATION
OF WHICH MAY BE FOUND IN OTHER SECTIONS OF THE INTERNAL REVENUE CODE. 
(FN12) 

AS WAS SAID IN TEXTILE MILLS, "THE WORDS 'ORDINARY AND NECESSARY' ARE
NOT SO CLEAR AND UNAMBIGUOUS IN THEIR MEANING AND APPLICATION AS TO
LEAVE NO ROOM FOR AN INTERPRETATIVE REGULATION.  THE NUMEROUS CASES
WHICH HAVE COME TO THIS COURT ON THAT ISSUE BEAR WITNESS TO THAT."  314
U.S., AT 338.  IN THE PRESENT CASES THERE IS BEFORE US REGULATORY
LANGUAGE OF MORE THAN 40 YEARS' CONTINUOUS DURATION EXPRESSLY PROVIDING
THAT SUMS EXPENDED FOR THE ACTIVITIES HERE INVOLVED SHALL NOT BE
CONSIDERED AN ORDINARY AND NECESSARY BUSINESS EXPENSE UNDER THE
STATUTE.  THE PROVISIONS OF THE INTERNAL REVENUE CODE WHICH UNDERLIE
THE REGULATIONS HAVE BEEN REPEATEDLY RE-ENACTED BY THE CONGRESS WITHOUT
THE SLIGHTEST SUGGESTION THAT THE POLICY EXPRESSED IN THESE REGULATORY
MEASURES DOES OTHER THAN PRECISELY CONFORM TO ITS INTENT.  (FN13)    IN
1934 THE COURT OF APPEALS FOR THE NINTH CIRCUIT DENIED DEDUCTION TO
EXPENSES INCURRED IN CONNECTION WITH A REFERENDUM WHICH WOULD, IF
PASSED, HAVE INCREASED THE TAXPAYER'S BUSINESS.  OLD MISSION PORTLAND
CEMENT CO. V. COMMISSIONER, SUPRA.  (FN14)  AND IN 1936 THE SAME COURT
IN SUNSET SCAVENGER CO. V. COMMISSIONER, SUPRA, REVERSED THE BOARD OF
TAX APPEALS TO HOLD THAT THE REGULATORY LANGUAGE NOW BEFORE US, THROUGH
REPEATED RE-ENACTMENT BY CONGRESS OF THE UNDERLYING LEGISLATION,
ALREADY HAD ACQUIRED THE FORCE OF LAW, AND APPLIED IT TO DENY
DEDUCTIBILITY TO EXPENDITURES MADE BY AN INCORPORATED ASSOCIATION OF
GARBAGE COLLECTORS FOR A PUBLICITY PROGRAM DIRECTED TO THE GENERAL
PUBLIC URGING THE DEFEAT OF LEGISLATION WHICH WOULD HAVE INJURED THE
BUSINESS OF THE ASSOCIATION'S MEMBERSHIP.  THE COURT RECOGNIZED THAT
THE BOARD OF TAX APPEALS HAD TWICE PREVIOUSLY HELD SIMILAR EXPENDITURES
DEDUCTIBLE SO LONG AS NOT MADE FOR AN ILLEGAL PURPOSE, (FN15) BUT
POINTED OUT THAT IN BOTH OF THOSE CASES THE EFFECT OF THE REGULATION
HAD BEEN ENTIRELY DISREGARDED, AND THAT THEY WERE THEREFORE NOT SOUND
AUTHORITY.  THREE YEARS LATER THE CONGRESS, IN THE FACE OF THESE
DECISIONS, AGAIN RE-ENACTED WITHOUT CHANGE IN THE 1939 CODE THE
"ORDINARY AND NECESSARY" BUSINESS EXPENSE SECTION. 

IT IS ALSO NOTEWORTHY THAT CONGRESS, IN ITS 1954 RE-ENACTMENT OF THE
INTERNAL REVENUE CODE, AGAIN ADOPTED THE "ORDINARY AND NECESSARY"
PROVISION WITHOUT SUBSTANTIVE CHANGE, (FN16) FOLLOWING CONSISTENT
RULINGS BY THE COURTS SUBSEQUENT TO THE 1939 RE-ENACTMENT HOLDING THESE
REGULATIONS APPLICABLE TO SUMS SPENT IN EFFORTS TO PERSUADE THE GENERAL
PUBLIC OF THE DESIRABILITY OR UNDESIRABILITY OF PROPOSED LEGISLATION
AFFECTING THE TAXPAYER'S BUSINESS.  SEE TEXTILE MILLS; AMERICAN
HARDWARE & EQ. CO. V. COMMISSIONER, SUPRA; ROBERTS DAIRY CO. V.
COMMISSIONER, SUPRA; MCCLINTOCK-TRUNKEY CO. V. COMMISSIONER, SUPRA.
ALTHOUGH THE TAX YEARS INVOLVED IN THE CASES BEFORE US ARE 1948 AND
1950, AND A 1954 RE-ENACTMENT OF COURSE CANNOT CONCLUSIVELY DEMONSTRATE
THE PROPRIETY OF AN ADMINISTRATIVE AND JUDICIAL INTERPRETATION AND
APPLICATION AS MADE TO TRANSACTIONS OCCURRING BEFORE THE RE-ENACTMENT,
THE 1954 ACTION OF CONGRESS IS SIGNIFICANT AS INDICATING SATISFACTION
WITH THE INTERPRETATION CONSISTENTLY GIVEN THE STATUTE BY THE
REGULATIONS HERE AT ISSUE AND IN DEMONSTRATING ITS PRIOR INTENT.  CF.
UNITED STATES V. STAFOFF, 260 U.S. 477, 480. 

UNDER THESE CIRCUMSTANCES WE THINK THAT THE REGULATIONS HAVE ACQUIRED
THE FORCE OF LAW.  THIS IS NOT A CASE WHERE THE GOVERNMENT SEEKS TO
CLOAK AN INTERPRETATIVE REGULATION WITH IMMUNITY FROM JUDICIAL
EXAMINATION AS TO CONFORMITY WITH THE STATUTE ON WHICH IT IS BASED
SIMPLY BECAUSE CONGRESS HAS FOR SOME PERIOD FAILED AFFIRMATIVELY TO ACT
TO CHANGE THE INTERPRETATION WHICH THE REGULATION GIVES TO AN OTHERWISE
UNAMBIGUOUS STATUTE.  CF. JONES V. LIBERTY GLASS CO., 332 U.S. 524. 
NOR IS IT A CASE WHERE NO RELIABLE INFERENCE AS TO CONGRESS' INTENT CAN
BE DRAWN FROM RE-ENACTMENT OF A STATUTE BECAUSE OF A CONFLICT BETWEEN
ADMINISTRATIVE AND JUDICIAL INTERPRETATION OF THE STATUTE AT THE TIME
OF ITS RE-ENACTMENT.  CF.  COMMISSIONER V. GLENSHAW CLASS CO., 348 U.S.
426, 431.  HERE WE HAVE UNAMBIGUOUS REGULATORY LANGUAGE, ADOPTED BY THE
COMMISSIONER IN THE EARLY DAYS OF FEDERAL INCOME TAX LEGISLATION, IN
CONTINUOUS EXISTENCE SINCE THAT TIME, AND CONSISTENTLY CONSTRUED AND
APPLIED BY THE COURTS ON MANY OCCASIONS TO DENY DEDUCTION OF SUMS
EXPENDED IN EFFORTS TO PERSUADE THE ELECTORATE, (FN17) EVEN WHEN A
CLEAR BUSINESS MOTIVE FOR THE EXPENDITURE HAS BEEN DEMONSTRATED. 

IN THESE CIRCUMSTANCES WE CONSIDER THAT WHAT WAS SAID IN
MASSACHUSETTS MUTUAL LIFE INS. CO. V. UNITED STATES, 288 U.S. 269, 273,
APPLIES HERE: 

"THIS ACTION OF CONGRESS IN RE-ENACTING A STATUTE WAS TAKEN WITH
KNOWLEDGE OF THE CONSTRUCTION PLACED UPON THE SECTION BY THE OFFICIAL
CHARGED WITH ITS ADMINISTRATION.  IF THE LEGISLATIVE BODY HAD
CONSIDERED THE TREASURY INTERPRETATION ERRONEOUS IT WOULD HAVE AMENDED
THE SECTION.  ITS FAILURE SO TO DO REQUIRES THE CONCLUSION THAT THE
REGULATION WAS NOT INCONSISTENT WITH THE INTENT OF THE STATUTE
(CITATIONS) UNLESS, PERHAPS, THE LANGUAGE OF THE ACT IS UNAMBIGUOUS AND
THE REGULATION CLEARLY INCONSISTENT WITH IT.  (CITATION)."  (FN18) 

THIS COURT HAS HERETOFORE RECOGNIZED THAT THE "ORDINARY AND
NECESSARY" LANGUAGE OF THE CODE IS HARDLY UNAMBIGUOUS, SEE TEXTILE
MILLS SECURITIES CORP. V. COMMISSIONER, SUPRA, AND WE CANNOT SAY THAT
THESE REGULATIONS ARE CLEARLY, OR EVEN APPARENTLY, INCONSISTENT WITH
IT.  CF. TRUST OF BINGHAM V. COMMISSIONER, 325 U.S. 365. 

THE STATUTORY POLICY IS FURTHER EVIDENCED BY THE TREATMENT GIVEN BY
CONGRESS TO THE TAX STATUS OF ORGANIZATIONS, OTHERWISE QUALIFIED FOR
EXEMPTION AS ORGANIZED EXCLUSIVELY FOR "RELIGIOUS, CHARITABLE,
SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES," WHICH ENGAGE IN
ACTIVITIES DESIGNED TO PROMOTE OR DEFEAT LEGISLATION.  AS EARLY AS 1934
CONGRESS AMENDED THE CODE EXPRESSLY TO PROVIDE THAT NO TAX EXEMPTION
SHOULD BE GIVEN TO ORGANIZATIONS, OTHERWISE QUALIFYING, A SUBSTANTIAL
PART OF THE ACTIVITIES OF WHICH "IS CARRYING ON PROPAGANDA, OR
OTHERWISE ATTEMPTING, TO INFLUENCE LEGISLATION," AND THAT DEDUCTIBILITY
SHOULD BE DENIED TO CONTRIBUTIONS BY INDIVIDUALS TO SUCH
ORGANIZATIONS.  REVENUE ACT OF 1934, SECS. 101(6), 23(O)(2), 48 STAT.
700, 690.  AND A YEAR THEREAFTER, WHEN THE CODE WAS FOR THE FIRST TIME
AMENDED TO PERMIT CORPORATIONS TO DEDUCT CERTAIN CONTRIBUTIONS NOT
QUALIFYING AS "ORDINARY AND NECESSARY" BUSINESS EXPENSES, AN IDENTICAL
LIMITATION WAS IMPOSED.  REVENUE ACT OF 1935, SEC. 102(C), 49 STAT.
1016.  THESE LIMITATIONS, CARRIED OVER INTO THE 1939 AND 1954 CODES,
(FN19) MADE EXPLICIT THE CONCLUSION DERIVED BY JUDGE LEARNED HAND IN
1930 THAT "POLITICAL AGITATION AS SUCH IS OUTSIDE THE STATUTE, HOWEVER
INNOCENT THE AIM  ...  .  CONTROVERSIES OF THAT SORT MUST BE CONDUCTED
WITHOUT PUBLIC SUBVENTION; THE TREASURY STANDS ASIDE FROM THEM."  SLEE
V. COMMISSIONER, 42 F.2D 184, 185.  THE REGULATIONS HERE CONTESTED
APPEAR TO US TO BE BUT A FURTHER EXPRESSION OF THE SAME SHARPLY DEFINED
POLICY. 

PETITIONERS SUGGEST THAT IF THE REGULATIONS ARE CONSTRUED TO DENY
THEM DEDUCTION, A SUBSTANTIAL CONSTITUTIONAL ISSUE UNDER THE FIRST
AMENDMENT IS PRESENTED.  THEY RELY UPON SPEISER V. RANDALL, 357 U.S.
513, WHERE A CALIFORNIA STATUTE REQUIRING THE TAKING OF A LOYALTY OATH
AS A CONDITION OF PROPERTY TAX EXEMPTION WAS STRUCK DOWN ON GROUNDS OF
PROCEDURAL DUE PROCESS.  THIS CONTENTION, MADE BY NEITHER PETITIONER
BELOW, IS WITHOUT MERIT.  SPEISER HAS NO RELEVANCE TO THE CASES BEFORE
US. PETITIONERS ARE NOT BEING DENIED A TAX DEDUCTION BECAUSE THEY
ENGAGE IN CONSTITUTIONALLY PROTECTED ACTIVITIES, BUT ARE SIMPLY BEING
REQUIRED TO PAY FOR THOSE ACTIVITIES ENTIRELY OUT OF THEIR OWN POCKETS,
AS EVERYONE ELSE ENGAGING IN SIMILAR ACTIVITIES IS REQUIRED TO DO UNDER
THE PROVISIONS OF THE INTERNAL REVENUE CODE.  NONDISCRIMINATORY DENIAL
OF DEDUCTION FROM GROSS INCOME TO SUMS EXPENDED TO PROMOTE OR DEFEAT
LEGISLATION IS PLAINLY NOT "'AIMED AT THE SUPPRESSION OF DANGEROUS
IDEAS.'"  357 U.S., AT 519.  RATHER, IT APPEARS TO US TO EXPRESS A
DETERMINATION BY CONGRESS THAT SINCE PURCHASED PUBLICITY CAN INFLUENCE
THE FATE OF LEGISLATION WHICH WILL AFFECT, DIRECTLY OR INDIRECTLY, ALL
IN THE COMMUNITY, EVERYONE IN THE COMMUNITY SHOULD STAND ON THE SAME
FOOTING AS REGARDS ITS PURCHASE SO FAR AS THE TREASURY OF THE UNITED
STATES IS CONCERNED.  AFFIRMED. 

FN1  THAT SECTION (26 U.S.C. SEC. 23(A)(1)(A)) PROVIDES IN PERTINENT
PART: 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME.  IN COMPUTING NET INCOME
THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES. 

"(1)  TRADE OR BUSINESS EXPENSES. 

"(A)  IN GENERAL.  ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS
... ." 

FN2  ONLY SEC. 29.23(O)-1, WHICH READS ON INDIVIDUALS, IS INVOLVED AS
TO PETITIONERS CAMMARANO, AND ONLY SEC. 29.23(Q)-1, READING ON
CORPORATIONS, AS TO PETITIONER F. STRAUSS & SON, INC. BECAUSE THE
LANGUAGE AND EFFECT OF THE TWO REGULATIONS ARE IN ALL RELEVANT RESPECTS
IDENTICAL THEY WILL BE DISCUSSED THROUGHOUT THIS OPINION AS IF THEY
WERE ONE. 

FN3  A TYPICAL ADVERTISEMENT PAID FOR BY THE INDUSTRY ADVISORY
COMMITTEE, SIGNED BY "MEN & WOMEN AGAINST PROHIBITION," BEGINS "WE
INTEND TO VOTE AGAINST INITIATIVE 13 - BECAUSE IT WOULD MEAN A RETURN
TO THE SPEAKEASY, THE BOOTLEGGER, THE GANGSTER - AND, FINALLY, STATE
WIDE PROHIBITION]  WE URGE OUR FRIENDS AND NEIGHBORS TO DO LIKEWISE." 

FN4  THE COURT OF APPEALS ALTERNATIVELY HELD THAT JUDGMENT IN FAVOR
OF THE COMMISSIONER WAS REQUIRED BY A TRIAL COURT FINDING THAT
PETITIONERS CAMMARANO HAD FAILED TO SHOW THAT PASSAGE OF THE INITIATIVE
WOULD HAVE IMPAIRED THEIR PARTNERSHIP'S BUSINESS AS A BEER
DISTRIBUTOR.  246 F.2D, AT 754.  THIS GROUND OF DECISION IS NOT
STRONGLY DEFENDED BY THE GOVERNMENT IN THIS COURT, AND ON OUR VIEW OF
THE PRINCIPLES WHICH CONTROL IT NEED NOT BE CONSIDERED. 

FN5  A TYPICAL ADVERTISEMENT, WHICH RAN IN ALL ARKANSAS DAILY AND
WEEKLY NEWSPAPERS, AND WHICH SHOWS AS ITS SPONSOR "ARKANSAS AGAINST
PROHIBITION," BEGINS: 

"WHAT DOES 'ONE QUART' PROHIBITION REALLY MEAN?  THERE'S NOTHING LIKE
IT ANYWHERE  ...  IT'S NOVEL  ...  IT'S UNIQUE.  BUT IT'S SINISTER  ...
IT'S A PLAN TO DESTROY THE STRICTLY-REGULATED ALCOHOL BEVERAGE
BUSINESS AND TO TURN THAT BUSINESS OVER TO THE BOOTLEGGER." 

FN6  ARTICLE 143 OF TREAS. REG. 33 (1918 ED.)  DENIED DEDUCTIBILITY
AS ORDINARY AND NECESSARY BUSINESS EXPENSES TO CORPORATE EXPENDITURES
FOR "LOBBYING PURPOSES, THE PROMOTION OR DEFEAT OF LEGISLATION, THE
EXPLOITATION OF PROPAGANDA  ...  ."  THE PROHIBITION AGAINST CORPORATE
DEDUCTION OF SUCH EXPENDITURES FIRST APPEARS IN ITS PRESENT FORM IN
ART. 562 OF TREAS. REG. 45 (1919 ED.), PROMULGATED UNDER THE REVENUE
ACT OF 1918.  THEREAFTER IT SO APPEARS CONTINUOUSLY WITHOUT CHANGE. 
SEE ART. 562 OF TREAS. REG. 45 (1920 ED.), 62, 65, AND 69, PROMULGATED
UNDER THE REVENUE ACTS OF 1918, 1921, 1924, AND 1926, ART. 262 OF
TREAS. REG. 74 AND 77, PROMULGATED UNDER THE REVENUE ACTS OF 1928 AND
1932, ART. 23(O)-2 OF TREAS. REG. 86, PROMULGATED UNDER THE REVENUE ACT
OF 1934, ART. 23(Q)-1 OF TREAS. REG. 94 AND 101, PROMULGATED UNDER THE
REVENUE ACTS OF 1936 AND 1938, SECS. 19.23(Q)-1, 29.23(Q)-1, AND
39.23(Q)-1 OF TREAS. REG. 103, 111, AND 118, RESPECTIVELY, PROMULGATED
UNDER THE INTERNAL REVENUE CODE OF 1939. 

THE PROHIBITION AGAINST INDIVIDUAL DEDUCTIBILITY OF SUCH EXPENDITURES
FIRST APPEARS IN ART. 23(O)-1 OF TREAS. REG. 101, PROMULGATED UNDER THE
REVENUE ACT OF 1938, AND THEREAFTER IN SECS. 19.23(O)-1, 29.23(O)-1,
AND 39.23(O)-1 OF TREAS. REG. 103, 111, AND 118, RESPECTIVELY,
PROMULGATED UNDER THE INTERNAL REVENUE CODE OF 1939. 

IN THE PROPOSED INCOME TAX REGULATIONS UNDER THE 1954 CODE THE
PROHIBITIONS ARE CONSOLIDATED IN SEC. 1.162-15. 

FN7  PETITIONERS CAMMARANO SUGGEST THAT IN FACT "LOBBYING" WAS
INVOLVED IN TEXTILE MILLS BECAUSE OF THE ACTIVITIES OF ONE MONDELL
WHOSE SERVICES HAD ALSO BEEN ENGAGED BY THE PETITIONER THERE.  BUT THE
OPINION OF THE COURT OF APPEALS SHOWS THAT NONE OF THE PAYMENTS MADE TO
MONDELL WERE INVOLVED IN THE LITIGATION (SEE 117 F.2D, AT 64), AND THE
OPINION OF THIS COURT MAKES NO REFERENCE TO ANY OF MONDELL'S
ACTIVITIES. 

FN8  PETITIONERS POINT TO UNITED STATES V. RUMELY, 345 U.S. 41, AND
UNITED STATES V. HARRISS, 347 U.S. 612, WHERE THIS COURT INTERPRETED
THE TERM "LOBBYING" IN A CONGRESSIONAL RESOLUTION AND IN THE FEDERAL
REGULATION OF LOBBYING ACT, 2 U.S.C. SECS. 261-270, TO MEAN ONLY
REPRESENTATIONS AND COMMUNICATIONS MADE DIRECTLY TO CONGRESS AND ITS
MEMBERS CONCERNING PENDING OR PROPOSED LEGISLATION.   THESE CASES DO
NOT ADVANCE PETITIONERS' CAUSE, SINCE THE REGULATORY PROVISIONS HERE
EXPLICITLY EMBRACE MORE THAN "LOBBYING."  CF. UNITED STATES V. RUMELY,
SUPRA, AT 47. 

FN9  AMENDMENT 7 OF THE CONSTITUTION OF THE STATE OF WASHINGTON
PROVIDES IN PERTINENT PART: 

"ART. 2, SEC. 1.  LEGISLATIVE POWERS, WHERE VESTED - THE LEGISLATIVE
AUTHORITY OF THE STATE OF WASHINGTON SHALL BE VESTED IN THE
LEGISLATURE, CONSISTING OF A SENATE AND HOUSE OF REPRESENTATIVES, WHICH
SHALL BE CALLED THE LEGISLATURE OF THE STATE OF WASHINGTON, BUT THE
PEOPLE RESERVE TO THEMSELVES THE POWER TO PROPOSE BILLS, LAWS, AND TO
ENACT OR REJECT THE SAME AT THE POLLS, INDEPENDENT OF THE LEGISLATURE
...  ." 

AMENDMENT 7 OF THE ARKANSAS CONSTITUTION CONTAINS A VIRTUALLY
IDENTICAL PROVISION. 

FN10  PETITIONERS PLACE HEAVY RELIANCE ON THE COMMISSIONER'S
ACQUIESCENCE UNTIL 1958 IN A 1944 DECISION OF THE TAX COURT ALLOWING
DEDUCTION TO EXPENDITURES - FOUND OTHERWISE TO QUALIFY UNDER SEC.
23(A)(1)(A) OF THE 1939 CODE - INCURRED BY A TAXPAYER IN CONNECTION
WITH A SELF-OPERATIVE AMENDMENT TO THE MISSOURI CONSTITUTION, ON THE
GROUND THAT "NO LEGISLATION WAS NEEDED OR INVOLVED."  SMITH V.
COMMISSIONER, 3 T.C. 696.  WHETHER OR NOT UNDER THE REGULATIONS HERE AT
ISSUE A DISTINCTION CAN RATIONALLY BE DRAWN BETWEEN A POPULARLY ENACTED
CONSTITUTIONAL AMENDMENT AND AN INITIATIVE, WE DO NOT SEE HOW THE FACT
THAT THE TAX COURT AND THE COMMISSIONER FOR A PERIOD MADE SUCH A
DISTINCTION, COMPARE SMITH V. COMMISSIONER, SUPRA, WITH MCCLINTOCK
TRUNKEY CO. V. COMMISSIONER, 19 T.C. 297, REVERSED ON OTHER ISSUES, 217
F.2D 329, HELPS PETITIONERS' CASE, AS THE COMMISSIONER AND THE TAX
COURT HAVE BEEN ENTIRELY CONSISTENT IN THEIR POSITION THAT EXPENDITURES
CONNECTED WITH INITIATIVES - AS IN THE PRESENT CASES - ARE NOT
DEDUCTIBLE.    THE TAX COURT APPEARS TO HAVE MODIFIED ITS VIEW SINCE
THE SMITH CASE EVEN AS TO EXPENDITURES MADE IN CONNECTION WITH
CONSTITUTIONAL AMENDMENTS.  SEE MOSBY HOTEL CO. V. COMMISSIONER,
DECIDED OCTOBER 22, 1954, P-H 1954 TC MEM. DEC. PARA. 54,288.  AND THE
COMMISSIONER HAS RECENTLY WITHDRAWN HIS ACQUIESCENCE IN THE SMITH
DECISION.  SEE REV. RUL. 58-255, 1958-1 CUM. BULL.  91. 

FN11  THE COURT NOTED THAT IN JUDGING THE ISSUES BEFORE IT "WE DO NOT
HAVE THE BENEFIT OF AN INTERPRETATIVE DEPARTMENTAL REGULATION DEFINING
THE APPLICATION OF THE WORDS 'ORDINARY AND NECESSARY' TO THE PARTICULAR
EXPENSES HERE INVOLVED."  320 U.S., AT 470.    FN12  SEE P. 512, POST. 

FN13  SEE NOTE 6, SUPRA. 

FN14  THE SUGGESTION OF PETITIONERS CAMMARANO THAT THE DECISION IN
THAT CASE TURNED ON FACTORS OF THE KIND INVOLVED IN MCDONALD V.
COMMISSIONER, 323 U.S. 57, IS CONTRADICTED BY THE STATEMENT OF THE
COURT OF APPEALS CONCERNING OLD MISSION IN SUNSET SCAVENGER CO. V.
COMMISSIONER, 84 F.2D, AT 457. 

FN15  G.T. WOFFORD V. COMMISSIONER, 15 B.T.A. 1225; LOS ANGELES &
SALT LAKE R. CO. V. COMMISSIONER, 18 B.T.A. 168.  CF. LUCAS V. WOFFORD,
49 F.2D 1027, WHERE A PETITION BY THE COMMISSIONER FOR REVIEW OF THE
DECISION IN G.T. WOFFORD, SUPRA, WAS DENIED UPON A FINDING THAT THE
EXPENDITURES INVOLVED WERE NOT MADE "TO SECURE THE PASSAGE OR DEFEAT OF
ANY LEGISLATION."  49 F.2D, AT 1028. 

AFTER THIS COURT'S DECISION IN TEXTILE MILLS THE BOARD OF TAX APPEALS
RECOGNIZED THAT THE REGULATION WAS APPLICABLE TO EXPENDITURES INCURRED
IN A "PROPER AND LEGAL ATTEMPT TO PREVENT BUSINESS INJURY" BY
ENDEAVORING TO SECURE THE DEFEAT OF LEGISLATION.  BELLINGRATH V.
COMMISSIONER, 46 B.T.A. 89, 92. 

FN16  INTERNAL REVENUE CODE OF 1954, 26 U.S.C. (SUPP. V) SEC. 162. 

FN17  SMITH V. COMMISSIONER, SUPRA, CAN HARDLY BE REGARDED AS A BREAK
IN THE UNIFORM CHAIN OF DECISIONS.  SEE NOTE 10, SUPRA. 

FN18  SEE ALSO HELVERING V. WINMILL, 305 U.S. 79, 83:  "TREASURY
REGULATIONS AND INTERPRETATIONS LONG CONTINUED WITHOUT SUBSTANTIAL
CHANGE, APPLYING TO UNAMENDED OR SUBSTANTIALLY REENACTED STATUTES, ARE
DEEMED TO HAVE RECEIVED CONGRESSIONAL APPROVAL AND HAVE THE EFFECT OF
LAW." 

FN19  INTERNAL REVENUE CODE OF 1939, 26 U.S.C. SECS. 23(O)(2),
(Q)(2), 101(6); INTERNAL REVENUE CODE OF 1954, 26 U.S.C. (SUPP. V)
SECS. 170(C)(2)(D), 501(C)(3). 

MR. JUSTICE DOUGLAS, CONCURRING. 

VALENTINE V. CHRESTENSEN, 316 U.S. 52, 54, HELD THAT BUSINESS
ADVERTISEMENTS AND COMMERCIAL MATTERS* DID NOT ENJOY THE PROTECTION OF
THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH. 
THE RULING WAS CASUAL, ALMOST OFFHAND.  AND IT HAS NOT SURVIVED
REFLECTION.  THAT "FREEDOM OF SPEECH OR OF THE PRESS," DIRECTLY
GUARANTEED AGAINST ENCROACHMENT BY THE FEDERAL GOVERNMENT AND
SAFEGUARDED AGAINST STATE ACTION BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, IS NOT IN TERMS OR BY IMPLICATION CONFINED TO
DISCOURSE OF A PARTICULAR KIND AND NATURE.  IT HAS OFTEN BEEN STRESSED
AS ESSENTIAL TO THE EXPOSITION AND EXCHANGE OF POLITICAL IDEAS, TO THE
EXPRESSION OF PHILOSOPHICAL ATTITUDES, TO THE FLOWERING OF THE
LETTERS.  IMPORTANT AS THE FIRST AMENDMENT IS TO ALL THOSE CULTURAL
ENDS, IT HAS NOT BEEN RESTRICTED TO THEM.  INDIVIDUAL OR GROUP PROTESTS
AGAINST ACTION WHICH RESULTS IN MONETARY INJURIES ARE CERTAINLY NOT
BEYOND THE REACH OF THE FIRST AMENDMENT, AS THORNHILL V. ALABAMA, 310
U.S. 88, WHICH PLACED PICKETING WITHIN THE AMBIT OF THE FIRST
AMENDMENT, TEACHES.  AND SEE NEWELL V. LOCAL UNION, 181 KAN. 898, 182
KAN. 205, 317 P.2D 817, 319 P.2D 171, REVERSED, 356 U.S. 341.  A
PROTEST AGAINST GOVERNMENT ACTION THAT AFFECTS A BUSINESS OCCUPIES AS
HIGH A PLACE.  THE PROFIT MOTIVE SHOULD MAKE NO DIFFERENCE, FOR THAT IS
AN ELEMENT INHERENT IN THE VERY CONCEPTION OF A PRESS UNDER OUR SYSTEM
OF FREE ENTERPRISE.  THOSE WHO MAKE THEIR LIVING THROUGH EXERCISE OF
FIRST AMENDMENT RIGHTS ARE NO LESS ENTITLED TO ITS PROTECTION THAN
THOSE WHOSE ADVOCACY OR PROMOTION IS NOT HITCHED TO A PROFIT MOTIVE. 
WE HELD AS MUCH IN FOLLETT V. MCCORMICK, 321 U.S. 573.  AND I FIND IT
DIFFICULT TO DRAW A LINE BETWEEN THAT GROUP AND THOSE WHO IN OTHER
LINES OF ENDEAVOR ADVERTISE THEIR WARES BY DIFFERENT MEANS.  CHIEF
JUSTICE HUGHES SPEAKING FOR THE COURT IN LOVELL V. GRIFFIN, 303 U.S.
444, 452, DEFINED THE FIRST AMENDMENT RIGHT WITH WHICH WE NOW DEAL IN
THE BROADEST TERMS, "THE PRESS IN ITS HISTORIC CONNOTATION COMPREHENDS
EVERY SORT OF PUBLICATION WHICH AFFORDS A VEHICLE OF INFORMATION AND
OPINION."  AND SEE JAMISON V. TEXAS, 318 U.S. 413, 416; MARTIN V.
STRUTHERS, 319 U.S. 141, 143; BURSTYN V. WILSON, 343 U.S. 495, 501
502. 

*TWO DECISIONS PRIOR TO THE VALENTINE CASE APPROVED BROAD REGULATION
OF COMMERCIAL ADVERTISING.  FIFTH AVENUE COACH CO. V. NEW YORK, 221
U.S. 467, WAS DECIDED LONG BEFORE STROMBERG V. CALIFORNIA, 283 U.S.
359, EXTENDED THE APPLICATION OF THE FIRST AMENDMENT TO THE STATES.  IN
PACKER CORP. V. UTAH, 285 U.S. 105, THE FIRST AMENDMENT PROBLEM WAS NOT
RAISED.  THE EXTENT TO WHICH SUCH ADVERTISING COULD BE REGULATED
CONSISTENTLY WITH THE FIRST AMENDMENT (CF. CANTWELL V. CONNECTICUT, 310
U.S. 296; MARTIN V. STRUTHERS, 319 U.S. 141; BREARD V. ALEXANDRIA, 341
U.S. 622; ROTH V. UNITED STATES, 354 U.S. 476) HAS THEREFORE NEVER BEEN
AUTHORITATIVELY DETERMINED. 

IN SPITE OF THE OVERTONES OF VALENTINE V. CHRESTENSEN, SUPRA, I FIND
IT IMPOSSIBLE TO SAY THAT THE OWNERS OF THE PRESENT BUSINESS WHO WERE
FIGHTING FOR THEIR LIVES IN OPPOSING THESE INITIATIVE MEASURES WERE NOT
EXERCISING FIRST AMENDMENT RIGHTS.  IF CONGRESS HAD GONE SO FAR AS TO
DENY ALL DEDUCTIONS FOR "ORDINARY AND NECESSARY BUSINESS EXPENSES" IF A
TAXPAYER SPENT MONEY TO PROMOTE OR OPPOSE INITIATIVE MEASURES, THEN IT
WOULD BE PLACING A PENALTY ON THE EXERCISE OF FIRST AMENDMENT RIGHTS. 
THAT WAS IN SUBSTANCE WHAT A STATE DID IN SPEISER V. RANDALL, 357 U.S.
513.  "TO DENY AN EXEMPTION TO CLAIMANTS WHO ENGAGE IN CERTAIN FORMS OF
SPEECH IS IN EFFECT TO PENALIZE THEM FOR SUCH SPEECH."  ID., AT 518. 
CONGRESS, HOWEVER, HAS TAKEN NO SUCH ACTION HERE.  IT HAS NOT
UNDERTAKEN TO PENALIZE TAXPAYERS FOR CERTAIN TYPES OF ADVOCACY; IT HAS
MERELY ALLOWED SOME, NOT ALL, EXPENSES AS DEDUCTIONS.  DEDUCTIONS ARE A
MATTER OF GRACE, NOT OF RIGHT.  COMMISSIONER V. SULLIVAN, 356 U.S. 27. 
TO HOLD THAT THIS ITEM OF EXPENSE MUST BE ALLOWED AS A DEDUCTION WOULD
BE TO GIVE IMPETUS TO THE VIEW FAVORED IN SOME QUARTERS THAT FIRST
AMENDMENT RIGHTS MUST BE PROTECTED BY TAX EXEMPTIONS.  BUT THAT
PROPOSITION SAVORS OF THE NOTION THAT FIRST AMENDMENT RIGHTS ARE
SOMEHOW NOT FULLY REALIZED UNLESS THEY ARE SUBSIDIZED BY THE STATE. 
SUCH A NOTION RUNS COUNTER TO OUR DECISIONS (GROSJEAN V. AMERICAN PRESS
CO., 297 U.S. 233, 250; MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 112;
FOLLETT V. MCCORMICK, SUPRA, AT 578), AND MAY INDEED CONFLICT WITH THE
UNDERLYING PREMISE THAT A COMPLETE HANDS-OFF POLICY ON THE PART OF
GOVERNMENT IS AT TIMES THE ONLY COURSE CONSISTENT WITH FIRST AMENDMENT
RIGHTS.  SEE MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203. 

WITH THIS ADDENDUM, I CONCUR IN THE OPINION OF THE COURT. 
..END :
























KELLY V. KOSUGA 358 U.S. 516 


NO. 267.  ARGUED JANUARY 22, 1959 - DECIDED FEBRUARY 24, 1959 - 257 F.2D
48, AFFIRMED. 


IN THIS SUIT BROUGHT IN A FEDERAL DISTRICT COURT ON GROUNDS OF
DIVERSITY OF CITIZENSHIP BY A SELLER TO RECOVER FROM A BUYER THE UNPAID
BALANCE DUE IN RESPECT TO A LAWFUL SALE FOR A FAIR CONSIDERATION, THE
DISTRICT COURT PROPERLY GRANTED THE PLAINTIFF'S MOTION TO STRIKE AN
AFFIRMATIVE DEFENSE PLEADED BY THE BUYER TO THE EFFECT THAT THE SALE
WAS MADE PURSUANT TO, AND AS AN INDIVISIBLE PART OF, AN AGREEMENT WHICH
VIOLATED SEC. 1 OF THE SHERMAN ANTITRUST ACT.  PP. 516-521. 

KELLY V. KOSUGA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT SUED THE PETITIONER IN THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS FOR FAILING TO COMPLETE PAYMENT OF THE
PURCHASE PRICE OF 50 CARS OF ONIONS WHICH THE RESPONDENT HAD SOLD TO
THE PETITIONER IN DECEMBER 1955.  JURISDICTION WAS BASED ON DIVERSITY
OF CITIZENSHIP.  THE PETITIONER INTERPOSED THE DEFENSE THAT THE SALE
WAS MADE PURSUANT TO AND AS AN INDIVISIBLE PART OF AN AGREEMENT WHICH
VIOLATED SEC. 1 OF THE SHERMAN ANTITRUST ACT, 26 STAT. 209, AS AMENDED,
15 U.S.C. SEC. 1.  A MOTION WAS MADE TO STRIKE THIS DEFENSE AND
THEREFORE THE FACTS UNDERLYING IT MUST BE TAKEN TO BE THOSE SET UP IN
THE PETITIONER'S ANSWER.  PETITIONER AND RESPONDENT WERE BOTH ENGAGED
IN THE MARKETING OF ONIONS.  PETITIONER, WHO WAS A GROWER OF ONIONS,
ADMITTED THAT HE BOUGHT THE ONIONS FROM THE RESPONDENT.  BUT HE ALLEGED
THAT THE RESPONDENT AND ONE SAM SIEGEL HAD REPRESENTED TO HIM AND TO
OTHER ONION GROWERS THAT THEY WERE THE OWNERS OF SUBSTANTIAL AMOUNTS OF
ONIONS IN STORAGE, CONTROLLING 600 CARS IN THE CHICAGO AREA AND 400
MORE ELSEWHERE THROUGHOUT THE COUNTRY; THAT RESPONDENT AND SIEGEL
FURTHER INFORMED THE PETITIONER AND OTHER GROWERS, AT MEETINGS CALLED
FOR THE PURPOSE IN NOVEMBER AND DECEMBER 1955, THAT UNLESS THE GROWERS
PURCHASED A LARGE QUANTITY OF THESE ONIONS, THE RESPONDENT AND SIEGEL
WOULD DELIVER THEM ON THE FUTURES EXCHANGE FOR THE PURPOSE OF
DEPRESSING THE FUTURES PRICE AND THE CASH MARKET PRICE OF ONIONS.  THE
PETITIONER AND THE OTHER GROWERS, WHO USUALLY SOLD THROUGH TRADE
CHANNELS, WERE FEARFUL THAT THIS WOULD CAUSE THEM CONSIDERABLE LOSS. 
IT WAS FINALLY AGREED BY THE PETITIONER AND OTHER GROWERS THAT THEY
WOULD PURCHASE 287 OF THE 600 CARS OF ONIONS STORED IN THE CHICAGO
AREA, AND THE RESPONDENT AND SIEGEL AGREED NOT TO DELIVER ANY ONIONS ON
THE FUTURES MARKET FOR THE REMAINDER OF THE CURRENT TRADING SEASON. 
THE PETITIONER AND THE OTHER PURCHASERS THEMSELVES AGREED NOT TO
DELIVER ANY OF THE ONIONS PURCHASED FROM RESPONDENT AND SIEGEL ON THE
FUTURES MARKET FOR THE REMAINDER OF THE SEASON; THIS WAS "FOR THE
PURPOSE OF CREATING A FALSE AND FICTITIOUS MARKET CONDITION," AND "TO
FIX THE PRICE OF ONIONS AND LIMIT THE AMOUNT OF ONIONS SOLD IN THE
STATE OF ILLINOIS."  THE DISTRICT COURT GRANTED RESPONDENT'S MOTION AND
STRUCK THE DEFENSE AS INSUFFICIENT IN LAW.  (FN1) 

THE DISTRICT COURT THEN FOUND, ON THE UNDISPUTED FACTS, THAT
PETITIONER HAD IN FACT PURCHASED THE 50 CARS OF ONIONS FROM THE
RESPONDENT, AT AN AGREED PRICE OF $960 PER CAR, PLUS STORAGE CHARGES
INCURRED AFTER SALE; THAT PETITIONER HAD WITHDRAWN 13 CARS OF THE
ONIONS FROM THE DESIGNATED STORAGE PLACES AFTER THE SALE, BUT HAD NOT
WITHDRAWN THE REMAINDER; THAT WHILE PETITIONER HAD MADE SOME PAYMENTS
ON ACCOUNT OF THE SALE, HE HAD COME INTO DEFAULT ON THEM; AND THAT,
WHEN THE ONIONS BEGAN TO SHOW SIGNS OF DETERIORATION, THE RESPONDENT
PROPERLY, AFTER REPUDIATION OF THE PURCHASE BY THE PETITIONER, WITHDREW
THE REMAINING CARS FROM STORAGE AND SOLD THEM FOR PETITIONER'S
ACCOUNT.  THE DISTRICT COURT ENTERED SUMMARY JUDGMENT FOR THE UNPAID
PURCHASE PRICE AND STORAGE CHARGES, LESS THE AMOUNTS OBTAINED ON THE
SALE BY RESPONDENT, THE MARKET PRICE HAVING DECLINED IN THE INTERIM. 
THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED.  257 F.2D 48. 
WE GRANTED CERTIORARI TO CONSIDER THE AVAILABILITY OF THE PETITIONER'S
PLEADED DEFENSE OF ILLEGALITY UNDER THE SHERMAN ACT TO THIS ACTION TO
ENFORCE THE TERMS OF A SALE MADE UNDER STATE LAW.  358 U.S. 811. 

AS A DEFENSE TO AN ACTION BASED ON CONTRACT, THE PLEA OF ILLEGALITY
BASED ON VIOLATION OF THE SHERMAN ACT (FN2) HAS NOT MET WITH MUCH FAVOR
IN THIS COURT.  THIS HAS BEEN NOTABLY THE CASE WHERE THE PLEA HAS BEEN
MADE BY A PURCHASER IN AN ACTION TO RECOVER FROM HIM THE AGREED PRICE
OF GOODS SOLD.  IN CONNOLLY V. UNION SEWER PIPE CO., 184 U.S. 540, ONE
WHO HAD PURCHASED MERCHANDISE FROM A FIRM ALLEGEDLY A COMBINATION IN
RESTRAINT OF TRADE WAS NOT ALLOWED TO SET UP THAT FACT AS A DEFENSE TO
AN ACTION FOR THE PURCHASE PRICE.  IN D.R. WILDER MFG. CO. V. CORN
PRODUCTS REFINING CO., 236 U.S. 165, CORN PRODUCTS SOLD MERCHANDISE TO
WILDER WITH A STANDING OFFER, OF WHICH THE LATTER APPARENTLY HAD SOUGHT
TO TAKE SOME ADVANTAGE, TO GIVE WILDER A REBATE IF IT BOUGHT
EXCLUSIVELY FROM IT.  AGAIN, IN AN ACTION BY THE SELLER, CORN PRODUCTS,
TO RECOVER THE AGREED PRICE, THE PURCHASER, WILDER, WAS DENIED ANY
DEFENSE OF ILLEGALITY BASED ON THE SHERMAN ACT.  THE COURT OBSERVED
THAT THE SHERMAN ACT'S EXPRESS REMEDIES COULD NOT BE ADDED TO
JUDICIALLY BY INCLUDING THE AVOIDANCE OF PRIVATE CONTRACTS AS A
SANCTION.  ID., AT 174-175.  CF. BRUCE'S JUICES, INC., V. AMERICAN CAN
CO., 330 U.S. 743, 755.  SEE A.B. SMALL CO. V. LAMBORN & CO., 267 U.S.
248, 252, GENERALLY TO THE SAME EFFECT.  OBVIOUSLY, STATE LAW GOVERNS
IN GENERAL THE RIGHTS AND DUTIES OF SELLERS AND PURCHASERS OF GOODS,
AND, WHILE THE EFFECT OF ILLEGALITY UNDER A FEDERAL STATUTE IS A MATTER
OF FEDERAL LAW, SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S.
173, 176-177, EVEN IN DIVERSITY ACTIONS IN THE FEDERAL COURTS AFTER
ERIE R. CO. V. TOMPKINS, 304 U.S. 64, STILL THE FEDERAL COURTS SHOULD
NOT BE QUICK TO CREATE A POLICY OF NONENFORCEMENT OF CONTRACTS BEYOND
THAT WHICH IS CLEARLY THE REQUIREMENT OF THE SHERMAN ACT. 

THE PETITIONER RECOGNIZES THE IMPORT OF THE HOLDINGS IN CONNOLLY,
WILDER AND SMALL, BUT HE ARGUES THAT THEY INVOLVE SITUATIONS WHERE A
PERSON NOT PARTY TO ANY UNLAWFUL AGREEMENT SOUGHT TO DEFEND AGAINST THE
ACTION ON THE GROUNDS OF THE SELLER'S UNLAWFUL ACTS; WHERE THE
PURCHASER IS PARTY TO THE UNLAWFUL AGREEMENT AND THE AGREEMENT BEARS
SOME RELATION TO THE SUIT, THE PETITIONER CLAIMS HE IS NOT TO BE HELD
TO THE PURCHASE PRICE.  THE DISTINCTION ASSERTED IS, TO SAY THE LEAST,
ON ITS FACE PARADOXICAL; AND THE PETITIONER QUOTES FROM THIS COURT'S
OPINION IN MCMULLEN V. HOFFMAN, 174 U.S. 639, 669, WHICH DEALT WITH THE
PLEA OF ILLEGALITY IN ANOTHER CONTEXT:  "IT HAS BEEN OFTEN STATED IN
SIMILAR CASES THAT THE DEFENCE IS A VERY DISHONEST ONE, AND IT LIES ILL
IN THE MOUTH OF THE DEFENDANT TO ALLEGE IT, AND IT IS ONLY ALLOWED FOR
PUBLIC CONSIDERATIONS AND IN ORDER THE BETTER TO SECURE THE PUBLIC
AGAINST DISHONEST TRANSACTIONS."  PETITIONER EVIDENTLY IS WILLING TO
TAKE THE BITTER AS WELL AS THE SWEET FROM THIS PASSAGE.  IF THE DEFENSE
OF ILLEGALITY IS TO BE ALLOWED AS A COLLATERAL METHOD OF ENFORCEMENT OF
THE ANTITRUST LAWS, AS THE BREADTH OF THE PETITIONER'S ARGUMENT
SUGGESTS, IT MUST BE SAID THAT HIS THEORY CREATES A VERY STRANGE CLASS
OF PRIVATE ATTORNEYS GENERAL. 

IN ANY EVENT, AN ANALYSIS OF THE NARROW SCOPE IN WHICH THE DEFENSE IS
ALLOWED IN RESPECT OF THE SHERMAN ACT INDICATES THAT THE PRINCIPLE OF
DISTINCTION IS NOT WHAT THE PETITIONER CLAIMS IT TO BE. THE LEADING
CASE HERE IN WHICH THE DEFENSE WAS ALLOWED IS CONTINENTAL WALL PAPER
CO. V. LOUIS VOIGHT & SONS CO., 212 U.S. 227, MUCH RELIED ON BY
PETITIONER.  THERE THE VOIGHT COMPANY HAD MADE PURCHASES FROM
CONTINENTAL, A CORPORATION WHICH EXISTED ONLY AS A SELLING AGENT FOR
NUMEROUS WALLPAPER COMPANIES DOING BUSINESS AS A POOL AND SELLING AT
PRICES, ALLEGED TO BE EXCESSIVE AND UNREASONABLE, FIXED THROUGH THE
POOL AGREEMENT.  THE COURT WAS OF OPINION THAT TO GIVE JUDGMENT FOR THE
EXCESSIVE PURCHASE PRICE SO FIXED IN FAVOR OF SUCH A VENDOR WOULD BE TO
MAKE THE COURTS A PARTY TO THE CARRYING OUT OF ONE OF THE VERY
RESTRAINTS FORBIDDEN BY THE SHERMAN ACT.  212 U.S., AT 261.  ANY
THOUGHT THAT THE COURT MIGHT HAVE BEEN PROCEEDING ON BROADER GROUNDS
WAS SHORTLY AFTERWARDS LAID TO REST BY THE UNANIMOUS OPINION OF THE
COURT IN THE WILDER CASE.  236 U.S., AT 177.  THE SCOPE OF THE DEFENSE
OF ILLEGALITY UNDER THE SHERMAN ACT GOES NO FURTHER.  WHILE ENFORCEMENT
OF A CONTRACT BETWEEN WRONGDOERS MAY MORE FREQUENTLY PRESENT SUCH A
SITUATION, CF. LYONS V. WESTINGHOUSE ELECTRIC CORP., 222 F.2D 184, 188,
THE CHARACTER OF THE PARTIES IS NOT IN ITSELF DETERMINATIVE.  PAST THE
POINT WHERE THE JUDGMENT OF THE COURT WOULD ITSELF BE ENFORCING THE
PRECISE CONDUCT MADE UNLAWFUL BY THE ACT, THE COURTS ARE TO BE GUIDED
BY THE OVERRIDING GENERAL POLICY, AS MR. JUSTICE HOLMES PUT IT, "OF
PREVENTING PEOPLE FROM GETTING OTHER PEOPLE'S PROPERTY FOR NOTHING WHEN
THEY PURPORT TO BE BUYING IT."  CONTINENTAL WALL PAPER CO. V. LOUIS
VOIGHT & SONS CO., SUPRA, AT 271 (DISSENTING OPINION).  SUPPLYING A
SANCTION FOR THE VIOLATION OF THE ACT, NOT IN TERMS PROVIDED AND
CAPRICIOUS IN ITS OPERATION, CF. BRUCE'S JUICES, INC., V. AMERICAN CAN
CO., SUPRA, AT 753-754, IS AVOIDED BY TREATING THE DEFENSE AS SO
CONFINED. 

ACCORDINGLY, WHILE THE NONDELIVERY AGREEMENT BETWEEN THE PARTIES
COULD NOT BE ENFORCED BY A COURT, IF ITS UNLAWFUL CHARACTER UNDER THE
SHERMAN ACT BE ASSUMED, IT CAN HARDLY BE SAID TO ENFORCE A VIOLATION OF
THE ACT TO GIVE LEGAL EFFECT TO A COMPLETED SALE OF ONIONS AT A FAIR
PRICE.  AND WHILE ANALYSIS IN TERMS OF "DIVISIBILITY" OR SOME OTHER
VERBAL FORMULA MAY WELL BE CIRCULAR, SEE 6 CORBIN, CONTRACTS, SEC.
1520, IN ANY EVENT, WHERE, AS HERE, A LAWFUL SALE FOR A FAIR
CONSIDERATION CONSTITUTES AN INTELLIGIBLE ECONOMIC TRANSACTION IN
ITSELF, WE DO NOT THINK IT INAPPROPRIATE OR VIOLATIVE OF THE INTENT OF
THE PARTIES TO GIVE IT EFFECT EVEN THOUGH IT FURNISHED THE OCCASION FOR
A RESTRICTIVE AGREEMENT OF THE SORT HERE IN QUESTION.  CF. CINCINNATI,
PORTSMOUTH, BIG SANDY & POMEROY PACKET CO. V. BAY, 200 U.S. 179, 185. 
AFFIRMED. 

FN1  PETITIONER ALSO INTERPOSED DEFENSES OF ILLEGALITY UNDER THE
COMMODITY EXCHANGE ACT, SEC. 9, 42 STAT. 1003, AS AMENDED, 7 U.S.C.
SEC. 13, AND THE ILLINOIS ANTITRUST ACT, SMITH-HURD ILLINOIS ANN.
STAT., C. 38, SECS. 569, 573, 574, AND A COUNTERCLAIM ALLEGING
RESPONDENT'S BREACH OF THE NONDELIVERY AGREEMENT.  THESE ISSUES WERE
DECIDED ADVERSELY TO THE PETITIONER BELOW AND ARE NOT PRESERVED BY HIM
HERE. 

FN2  WITHOUT DECIDING THE POINT, WE SHALL ASSUME THAT THE
PETITIONER'S ALLEGATIONS DULY CHARGED A VIOLATION OF THE SHERMAN ACT. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :






ALLIED STORES OF OHIO V. BOWERS 358 U.S. 522 


NO. 10.  ARGUED NOVEMBER 12, 1958 - DECIDED FEBRUARY 24, 1959 - 166 OHIO
ST. 116, 140 N.E.2D 411, AFFIRMED. 


APPELLANT, AN OHIO CORPORATION OWNING AND OPERATING DEPARTMENT STORES
IN OHIO AND MAINTAINING THERE PRIVATE WAREHOUSES WHERE IT STORES STOCKS
OF MERCHANDISE TO BE SOLD IN ITS STORES, CHALLENGED IN THE OHIO COURTS
THE VALIDITY OF AN AD VALOREM STATE TAX ON THE CONTENTS OF ITS
WAREHOUSES.  IT CLAIMED THAT IT WAS DENIED THE EQUAL PROTECTION OF THE
LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT BECAUSE OHIO EXEMPTED FROM
SUCH TAXATION MERCHANDISE BELONGING TO NON-RESIDENTS "IF HELD IN A
STORAGE WAREHOUSE FOR STORAGE ONLY."  THE TRIAL COURT SUSTAINED THE
TAX.  THE STATE SUPREME COURT HELD THAT APPELLANT LACKED STANDING TO
RAISE THIS CONSTITUTIONAL QUESTION AND AFFIRMED THE JUDGMENT.   HELD: 

1.  APPELLANT HAD STANDING TO PROSECUTE ITS CONSTITUTIONAL CLAIM. 
PP. 525-526. 

2.  THE EXEMPTION FROM TAXATION OF MERCHANDISE BELONGING TO A NON
RESIDENT WHEN "HELD IN A STORAGE WAREHOUSE FOR STORAGE ONLY" DID NOT
DENY TO APPELLANT, A RESIDENT OF THE STATE, THE EQUAL PROTECTION OF THE
LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT.  WHEELING STEEL CORP. V.
GLANDER, 337 U.S. 562, DISTINGUISHED.  PP. 526-530. 

ALLIED STORES OF OHIO, INC., V. BOWERS, TAX COMMISSIONER OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION PRESENTED IS WHETHER AN OHIO STATUTE THAT
EXEMPTS FROM AD VALOREM TAXATION "MERCHANDISE OR AGRICULTURAL PRODUCTS
BELONGING TO A NONRESIDENT  ...  IF HELD IN A STORAGE WAREHOUSE FOR
STORAGE ONLY" DENIES TO APPELLANT, A RESIDENT OF THE STATE, THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION. 

THE FACTS ARE STIPULATED.  SO FAR AS PERTINENT, THEY ARE THAT
APPELLANT, ALLIED STORES OF OHIO, INC., AN OHIO CORPORATION, OWNS AND
OPERATES A DEPARTMENT STORE IN EACH OF FOUR OHIO CITIES.  IT ALSO
MAINTAINS IN EACH OF THOSE CITIES A PRIVATE WAREHOUSE WHERE IT STORES
STOCKS OF MERCHANDISE OF THE KINDS SOLD IN ITS STORES.  AS NEEDED,
MERCHANDISE IS TRANSFERRED FROM THE WAREHOUSE TO THE STORE, AND WHEN
MERCHANDISE IS SOLD BY SAMPLE IN THE STORE - USUALLY A HEAVY OR BULKY
ARTICLE - IT IS DELIVERED FROM THE WAREHOUSE DIRECTLY TO THE CUSTOMER. 

TITLE 57, PAGE'S OHIO REV. CODE ANN., 1953, SEC. 5709.01, PROVIDES,
INTER ALIA, THAT "ALL PERSONAL PROPERTY LOCATED AND USED IN BUSINESS IN
THIS STATE SHALL BE SUBJECT TO TAXATION, REGARDLESS OF THE RESIDENCE OF
THE OWNERS THEREOF  ...  ."  DURING THE TAX YEAR INVOLVED ANOTHER OHIO
STATUTE, TITLE 57, PAGE'S OHIO REV. CODE ANN., 1953, SEC. 5701.08(A),
PROVIDED, IN PERTINENT PART, THAT: 

"AS USED IN TITLE LVII OF THE REVISED CODE: 

"(A)  PERSONAL PROPERTY IS 'USED' WITHIN THE MEANING OF 'USED IN
BUSINESS'  ...  WHEN STORED OR KEPT ON HAND AS MATERIAL, PARTS,
PRODUCTS, OR MERCHANDISE; BUT MERCHANDISE OR AGRICULTURAL PRODUCTS
BELONGING TO A NONRESIDENT OF THIS STATE IS NOT USED IN BUSINESS IN
THIS STATE IF HELD IN A STORAGE WAREHOUSE FOR STORAGE ONLY  ...  ." 
(FN1) 

ACTING UNDER THOSE STATUTES, APPELLEE, AS TAX COMMISSIONER OF OHIO,
PROPOSED THE ASSESSMENT OF AN AD VALOREM TAX AGAINST APPELLANT BASED ON
THE AVERAGE VALUE OF THE MERCHANDISE THAT IT HAD STORED IN ITS FOUR
OHIO WAREHOUSES DURING THE TAX YEAR ENDING JANUARY 31, 1954.  (FN2)
APPELLANT PETITIONED THE BOARD OF TAX APPEALS OF OHIO FOR A
REDETERMINATION, CONTENDING THAT THE PROPERTY STORED IN ITS FOUR
WAREHOUSES IN THE TAX YEAR INVOLVED WAS "MERCHANDISE  ...  HELD IN A
STORAGE WAREHOUSE FOR STORAGE ONLY," WITHIN THE MEANING OF SEC.
5701.08(A), AND THAT BECAUSE THE SECTION EXEMPTED NONRESIDENTS, (FN3)
BUT TAXED RESIDENTS, ON STOCKS OF MERCHANDISE SO HELD, IT DENIED TO
APPELLANT, A RESIDENT OF OHIO, THE EQUAL PROTECTION OF THE LAWS
GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE CONSTITUTION.  THE BOARD
OF TAX APPEALS UPHELD THE TAX, AND SO DID THE COURT OF APPEALS OF
CUYAHOGA COUNTY.  ON APPEAL, THE SUPREME COURT OF OHIO HELD THAT
APPELLANT LACKED STANDING TO RAISE THE CONSTITUTIONAL QUESTION
PRESENTED AND AFFIRMED THE JUDGMENT.  166 OHIO ST. 116, 140 N.E.2D
411.  THE CASE COMES HERE ON ALLIED'S APPEAL. 

THE FIRST AND PRELIMINARY QUESTION THUS IS WHETHER THE SUPREME COURT
OF OHIO CORRECTLY HELD THAT APPELLANT LACKED STANDING TO PROSECUTE THE
CONSTITUTIONAL QUESTION SOUGHT TO BE PRESENTED.  IT IS SETTLED THAT
"WHETHER A PLEADING SETS UP A SUFFICIENT RIGHT OF ACTION OR DEFENSE,
GROUNDED ON THE CONSTITUTION OR A LAW OF THE UNITED STATES, IS
NECESSARILY A QUESTION OF FEDERAL LAW; AND WHERE A CASE COMING FROM A
STATE COURT PRESENTS THAT QUESTION, THIS COURT MUST DETERMINE FOR
ITSELF THE SUFFICIENCY OF THE ALLEGATIONS DISPLAYING THE RIGHT OR
DEFENSE, AND IS NOT CONCLUDED BY THE VIEW TAKEN OF THEM BY THE STATE
COURT."  FIRST NATIONAL BANK V. ANDERSON, 269 U.S. 341, 346; STAUB V.
CITY OF BAXLEY, 355 U.S. 313, 318. 

IN REACHING ITS CONCLUSION, THE OHIO COURT SAID "IN OUR OPINION, IT
IS NOT NECESSARY TO CONSIDER THE CONSTITUTIONAL QUESTION RAISED BY THE
TAXPAYER IN THE INSTANT CASE BECAUSE, IF ITS CONTENTION WITH REGARD TO
THAT QUESTION IS SOUND, IT NECESSARILY LEADS TO THE CONCLUSION THAT THE
ENTIRE PROVISO IN SUBDIVISION (A) OF SECTION 5701.08, WHICH READ, 'BUT
MERCHANDISE OR AGRICULTURAL PRODUCTS BELONGING TO A NONRESIDENT OF THIS
STATE IS NOT USED IN BUSINESS IN THIS STATE IF HELD IN A STORAGE
WAREHOUSE FOR STORAGE ONLY,' WAS VOID AND SHOULD BE STRICKEN.  THAT
BEING SO, IT IS APPARENT THAT ANY OF TAXPAYER'S 'MERCHANDISE  ...  HELD
IN A STORAGE WAREHOUSE FOR STORAGE ONLY' WOULD BE TAXABLE BECAUSE
DESCRIBED BY THE PRECEDING WORDS REMAINING IN THE STATUTE AND READING,
'STORED  ...  AS  ...  MERCHANDISE.'"  BUT THE COURT DID NOT HOLD THAT
THE PROVISO WAS INVALID, NOR DID IT STRIKE IT FROM THE STATUTE. 
INSTEAD, IT HELD THAT THE PROVISO EXPRESSED THE VALID LEGISLATIVE
PURPOSE TO EXEMPT THE MERCHANDISE AND AGRICULTURAL PRODUCTS OF
NONRESIDENTS WHEN HELD IN A STORAGE WAREHOUSE FOR STORAGE ONLY AND THAT
THE COURT WAS POWERLESS TO STRIKE IT.  IN THIS, THE COURT WAS FOLLOWING
ITS PRIOR DECISIONS ON THE QUESTION.  GENERAL CIGAR CO. V. PECK, 159
OHIO ST. 152, 111 N.E.2D 265 (1953), AND B.F. GOODRICH CO. V. PECK, 161
OHIO ST. 202, 118 N.E.2D 525 (1954), HAD SO HELD.  IN THE LATTER CASE
THE COURT HAD ANSWERED A CONTENTION THAT THE PROVISO WAS INVALID FOR
UNDUE PREFERENCE OF NONRESIDENTS BY SAYING "SUCH AN ARGUMENT SHOULD BE
ADDRESSED TO THE GENERAL ASSEMBLY AND NOT TO THIS COURT."  161 OHIO
ST., AT 210, 118 N.E.2D, AT 530.  THOSE INTERPRETATIONS, FOR PRESENT
PURPOSES, BECAME A PART OF THE PROVISO.  WHEELING STEEL CORP. V.
GLANDER, 337 U.S. 562, 566.  THE PROVISO IS THE BASIS OF APPELLANT'S
CLAIM OF DENIAL OF THE EQUAL PROTECTION OF THE LAWS.  WITH THE PROVISO
THUS VALIDLY REMAINING IN THE STATUTE IT IS QUITE IMMATERIAL THAT
APPELLANT'S CLAIM NECESSARILY WOULD FALL IF IT WERE OUT.  IT FOLLOWS
THAT APPELLANT DOES HAVE STANDING TO PROSECUTE ITS CONSTITUTIONAL
CLAIM. 

THIS BRINGS US TO THE MERITS.  DOES THE PROVISO EXEMPTING
"MERCHANDISE OR AGRICULTURAL PRODUCTS BELONGING TO A NONRESIDENT  ...
IF HELD IN A STORAGE WAREHOUSE FOR STORAGE ONLY" DENY TO APPELLANT, A
RESIDENT OF THE STATE, THE EQUAL PROTECTION OF THE LAWS WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT?  THE APPLICABLE PRINCIPLES HAVE
BEEN OFTEN STATED AND ARE ENTIRELY FAMILIAR.  THE STATES HAVE A VERY
WIDE DISCRETION IN THE LAYING OF THEIR TAXES.  WHEN DEALING WITH THEIR
PROPER DOMESTIC CONCERNS, AND NOT TRENCHING UPON THE PREROGATIVES OF
THE NATIONAL GOVERNMENT OR VIOLATING THE GUARANTIES OF THE FEDERAL
CONSTITUTION, THE STATES HAVE THE ATTRIBUTE OF SOVEREIGN POWERS IN
DEVISING THEIR FISCAL SYSTEMS TO ENSURE REVENUE AND FOSTER THEIR LOCAL
INTERESTS.  OF COURSE, THE STATES, IN THE EXERCISE OF THEIR TAXING
POWER, ARE SUBJECT TO THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT.  BUT THAT CLAUSE IMPOSES NO IRON RULE OF
EQUALITY, PROHIBITING THE FLEXIBILITY AND VARIETY THAT ARE APPROPRIATE
TO REASONABLE SCHEMES OF STATE TAXATION.  THE STATE MAY IMPOSE
DIFFERENT SPECIFIC TAXES UPON DIFFERENT TRADES AND PROFESSIONS AND MAY
VARY THE RATE OF EXCISE UPON VARIOUS PRODUCTS.  IT IS NOT REQUIRED TO
RESORT TO CLOSE DISTINCTIONS OR TO MAINTAIN A PRECISE, SCIENTIFIC
UNIFORMITY WITH REFERENCE TO COMPOSITION, USE OR VALUE.  BELL'S GAP R.
CO. V. PENNSYLVANIA, 134 U.S. 232, 237; MAGOUN V. ILLINOIS TRUST &
SAVINGS BANK, 170 U.S. 283, 293; SOUTHWESTERN OIL CO. V. TEXAS, 217
U.S. 114, 121; BROWN-FORMAN CO. V. KENTUCKY, 217 U.S. 563, 573; SUNDAY
LAKE IRON CO. V. WAKEFIELD, 247 U.S. 350, 353; HEISLER V. THOMAS
COLLIERY CO., 260 U.S. 245, 255; OLIVER IRON MINING CO. V. LORD, 262
U.S. 172, 179; STEBBINS V. RILEY, 268 U.S. 137, 142; OHIO OIL CO. V.
CONWAY, 281 U.S. 146, 159; STATE BOARD OF TAX COMM'RS V. JACKSON, 283
U.S. 527, 537.  "TO HOLD OTHERWISE WOULD BE TO SUBJECT THE ESSENTIAL
TAXING POWER OF THE STATE TO AN INTOLERABLE SUPERVISION, HOSTILE TO THE
BASIC PRINCIPLES OF OUR GOVERNMENT AND WHOLLY BEYOND THE PROTECTION
WHICH THE GENERAL CLAUSE OF THE FOURTEENTH AMENDMENT WAS INTENDED TO
ASSURE."  OHIO OIL CO. V. CONWAY, SUPRA, 281 U.S., AT 159. 

BUT THERE IS A POINT BEYOND WHICH THE STATE CANNOT GO WITHOUT
VIOLATING THE EQUAL PROTECTION CLAUSE.  THE STATE MUST PROCEED UPON A
RATIONAL BASIS AND MAY NOT RESORT TO A CLASSIFICATION THAT IS PALPABLY
ARBITRARY.  THE RULE OFTEN HAS BEEN STATED TO BE THAT THE
CLASSIFICATION "MUST REST UPON SOME GROUND OF DIFFERENCE HAVING A FAIR
AND SUBSTANTIAL RELATION TO THE OBJECT OF THE LEGISLATION."  ROYSTER
GUANO CO. V. VIRGINIA, 253 U.S. 412, 415; LOUISVILLE GAS & ELECTRIC CO.
V. COLEMAN, 277 U.S. 32, 37; AIR-WAY ELECTRIC APPLIANCE CORP. V. DAY,
266 U.S. 71, 85; SCHLESINGER V. WISCONSIN, 270 U.S. 230, 240; OHIO OIL
CO. V. CONWAY, 281 U.S. 146, 160.  "IF THE SELECTION OR CLASSIFICATION
IS NEITHER CAPRICIOUS NOR ARBITRARY, AND RESTS UPON SOME REASONABLE
CONSIDERATION OF DIFFERENCE OR POLICY, THERE IS NO DENIAL OF THE EQUAL
PROTECTION OF THE LAW."  BROWN-FORMAN CO. V. KENTUCKY, 217 U.S. 563,
573.  STATE BOARD OF TAX COMM'RS V. JACKSON, 283 U.S. 527, 537.  THAT A
STATUTE MAY DISCRIMINATE IN FAVOR OF A CERTAIN CLASS DOES NOT RENDER IT
ARBITRARY IF THE DISCRIMINATION IS FOUNDED UPON A REASONABLE
DISTINCTION, OR DIFFERENCE IN STATE POLICY.  AMERICAN SUGAR REF. CO. V.
LOUISIANA, 179 U.S. 89; STEBBINS V. RILEY, 268 U.S. 137, 142. 

COMING DIRECTLY TO THE CONCRETE PROBLEM NOW BEFORE US, IT HAS
REPEATEDLY BEEN HELD AND APPEARS TO BE ENTIRELY SETTLED THAT A STATUTE
WHICH ENCOURAGES THE LOCATION WITHIN THE STATE OF NEEDED AND USEFUL
INDUSTRIES BY EXEMPTING THEM, THOUGH NOT ALSO OTHERS, FROM ITS TAXES IS
NOT ARBITRARY AND DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  BELL'S GAP R. CO. V. PENNSYLVANIA, SUPRA, 134
U.S., AT 237; OHIO OIL CO. V. CONWAY, 281 U.S., AT 159; WILLIAMS V.
BALTIMORE, 289 U.S. 36; COLGATE V. HARVEY, 296 U.S. 404, 439
(DISSENTING OPINION).  SIMILARLY, IT HAS LONG BEEN SETTLED THAT A
CLASSIFICATION, THOUGH DISCRIMINATORY, IS NOT ARBITRARY NOR VIOLATIVE
OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT IF ANY STATE
OF FACTS REASONABLY CAN BE CONCEIVED THAT WOULD SUSTAIN IT.  LINDSLEY
V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78; QUONG WING V. KIRKENDALL,
223 U.S. 59; RAST V. VAN DEMAN & LEWIS CO., 240 U.S. 342, 357; STATE
BOARD OF TAX COMM'RS V. JACKSON, 283 U.S., AT 537. 

IN THE LIGHT OF THE LAW THUS WELL SETTLED, HOW STANDS APPELLANT'S
CASE?  WE CANNOT ASSUME THAT STATE LEGISLATIVE ENACTMENTS WERE ADOPTED
ARBITRARILY OR WITHOUT GOOD REASON TO FURTHER SOME LEGITIMATE POLICY OF
THE STATE.  WHAT WERE THE SPECIAL REASONS, MOTIVES OR POLICIES OF THE
OHIO LEGISLATURE FOR ADOPTING THE QUESTIONED PROVISO WE DO NOT KNOW
WITH CERTAINTY, NOR IS IT IMPORTANT THAT WE SHOULD, SOUTHWESTERN OIL
CO. V. TEXAS, 217 U.S. 114, 126, FOR A STATE LEGISLATURE NEED NOT
EXPLICITLY DECLARE ITS PURPOSE.  BUT IT IS OBVIOUS THAT IT MAY
REASONABLY HAVE BEEN THE PURPOSE AND POLICY OF THE STATE LEGISLATURE,
IN ADOPTING THE PROVISO, TO ENCOURAGE THE CONSTRUCTION OR LEASING AND
OPERATION OF WAREHOUSES IN OHIO BY NONRESIDENTS WITH THE ATTENDANT
BENEFITS TO THE STATE'S ECONOMY, OR TO STIMULATE THE MARKET FOR
MERCHANDISE AND AGRICULTURAL PRODUCTS PRODUCED IN OHIO BY ENABLING
NONRESIDENTS TO PURCHASE AND HOLD THEM IN THE STATE FOR STORAGE ONLY,
FREE FROM TAXES, IN ANTICIPATION OF FUTURE NEEDS.  OTHER SIMILAR
PURPOSES REASONABLY MAY BE CONCEIVED.  THEREFORE, WE CANNOT SAY THAT
THE DISCRIMINATION OF THE PROVISO WHICH EXEMPTED ONLY THE "MERCHANDISE
OR AGRICULTURAL PRODUCTS BELONGING TO A NONRESIDENT  ...  IF HELD IN A
STORAGE WAREHOUSE FOR STORAGE ONLY" WAS NOT FOUNDED UPON A REASONABLE
DISTINCTION, OR DIFFERENCE IN STATE POLICY, OR THAT NO STATE OF FACTS
REASONABLY CAN BE CONCEIVED TO SUSTAIN IT.  FOR THOSE REASONS, IT
CANNOT BE SAID, IN THE LIGHT OF THE SETTLED LAW AS SHOWN BY THE CASES
CITED, THAT THE QUESTIONED PROVISO WAS INVIDIOUS OR PALPABLY ARBITRARY
AND DENIED APPELLANT THE EQUAL PROTECTION OF THE LAWS WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT. 

APPELLANT HEAVILY RELIES ON WHEELING STEEL CORP. V. GLANDER, 337 U.S.
562.  WE THINK THAT CASE IS NOT APPOSITE.  THERE OHIO STATUTES EXEMPTED
FROM TAXATION CERTAIN ACCOUNTS RECEIVABLE OWNED BY RESIDENTS OF THE
STATE BUT TAXED THOSE OWNED BY NONRESIDENTS.  THE STATUTES, ON THEIR
FACE ADMITTEDLY DISCRIMINATORY AGAINST NONRESIDENTS, THEMSELVES
DECLARED THEIR PURPOSE.  THAT PURPOSE WAS TO PROFFER TO OTHER STATES A
SCHEME OF "RECIPROCITY" FOR TAXING ACCOUNTS RECEIVABLE.  (FN4)  OHIO
ARGUED THAT THE RECIPROCAL CHARACTER OF ITS STATUTES ELIMINATED THE
DISCRIMINATORY EFFECTS AGAINST NONRESIDENTS, BUT THIS COURT HELD THAT
IT DID NOT.  HAVING THEMSELVES SPECIFICALLY DECLARED THEIR PURPOSE, THE
OHIO STATUTES LEFT NO ROOM TO CONCEIVE OF ANY OTHER PURPOSE FOR THEIR
EXISTENCE.  AND THE DECLARED PURPOSE HAVING BEEN FOUND ARBITRARILY
DISCRIMINATORY AGAINST NONRESIDENTS, THE COURT COULD HARDLY ESCAPE THE
CONCLUSION THAT "THE INEQUALITY WAS NOT BECAUSE OF THE SLIGHTEST
DIFFERENCE IN OHIO'S RELATION TO THE DECISIVE TRANSACTION, BUT SOLELY
BECAUSE OF THE DIFFERENT RESIDENCE OF THE OWNER."  337 U.S., AT 572. 
AS WE HAVE SHOWN, THAT IS NOT THE SITUATION HERE.  HERE THE
DISCRIMINATION AGAINST RESIDENTS IS NOT INVIDIOUS NOR PALPABLY
ARBITRARY BECAUSE, AS SHOWN, IT RESTS NOT UPON THE "DIFFERENT RESIDENCE
OF THE OWNER," BUT UPON A STATE OF FACTS THAT REASONABLY CAN BE
CONCEIVED TO CONSTITUTE A DISTINCTION, OR DIFFERENCE IN STATE POLICY,
WHICH THE STATE IS NOT PROHIBITED FROM SEPARATELY CLASSIFYING FOR
PURPOSES OF TAXATION BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  AFFIRMED.    FN1  THE UNITALICIZED PORTION OF THE STATUTE
WAS ENACTED IN 1931, 114 OHIO LAWS 714, 716.  THE ITALICIZED CLAUSE
(ITALICS OMITTED) WAS ADDED BY THE OHIO LEGISLATURE AT ITS NEXT SESSION
IN 1933, 115 OHIO LAWS 548, 553.  IN SEPTEMBER 1955 THE SECTION WAS
AMENDED BY DELETING THE ITALICIZED CLAUSE AND INSERTING THE FOLLOWING:
"AND MERCHANDISE OR AGRICULTURAL PRODUCTS SHIPPED FROM OUTSIDE OF THIS
STATE AND HELD IN THIS STATE IN A WAREHOUSE OR A PLACE OF STORAGE FOR
STORAGE ONLY AND FOR SHIPMENT OUTSIDE OF THIS STATE ARE NOT USED IN
BUSINESS IN THIS STATE."  126 OHIO LAWS 78. 

FN2  THE OHIO TAXING DATE IS JANUARY 1, TITLE 57, PAGE'S OHIO REV.
CODE ANN., 1953, SEC. 5711.03.  WHY THE ASSESSMENT INVOLVED WAS FOR THE
YEAR ENDED JANUARY 31, INSTEAD OF JANUARY 1, 1954, IS NOT EXPLAINED IN
THE RECORD OR THE BRIEFS.  A MERCHANT'S PERSONAL PROPERTY IS VALUED FOR
TAX PURPOSES "BY TAKING THE AMOUNT IN VALUE ON HAND, AS NEARLY AS
POSSIBLE, IN EACH MONTH OF THE NEXT PRECEDING YEAR IN WHICH HE HAS BEEN
ENGAGED IN BUSINESS, ADDING TOGETHER SUCH AMOUNTS, AND DIVIDING THE
AGGREGATE AMOUNT BY THE NUMBER OF MONTHS THAT HE HAS BEEN IN BUSINESS
DURING SUCH YEAR."  TITLE 57, PAGE'S OHIO REV.  CODE ANN., 1953, SEC.
5711.15. 

FN3  THE SUPREME COURT OF OHIO HAS HELD THAT A FOREIGN CORPORATION,
ALTHOUGH AUTHORIZED TO DO AND DOING A LOCAL BUSINESS IN OHIO, IS A
NONRESIDENT WITHIN THE MEANING OF THE PROVISO HERE IN QUESTION.   B.F.
GOODRICH CO. V. PECK, 161 OHIO ST. 202, 204, 118 N.E.2D 525, 527. 

FN4  THE STATED PURPOSE WAS TO PROFFER TO OTHER STATES A RIGHT TO TAX
ACCOUNTS RECEIVABLE OWNED BY RESIDENTS OF OHIO THAT DERIVED FROM SALES
OF OHIO GOODS NEGOTIATED AND CONSUMMATED IN SUCH OTHER STATES IN
EXCHANGE FOR A CLAIMED OHIO RIGHT TO TAX THE ACCOUNTS RECEIVABLE OWNED
BY RESIDENTS OF OTHER STATES THAT DERIVED FROM SALES OF THEIR GOODS
NEGOTIATED AND CONSUMMATED IN OHIO.  "THE EFFECT," THIS COURT SAID,
"WAS THAT INTANGIBLES OF NONRESIDENT OWNERS WERE ASSIGNED A SITUS
WITHIN THE TAXING REACH OF OHIO WHILE THOSE OF ITS RESIDENTS WERE
ASSIGNED A SITUS WITHOUT.  THUS, THE EXEMPTED INTANGIBLES OF RESIDENTS
WERE OFFERED UP TO THE TAXING POWER OF OTHER STATES WHICH MAY EMBRACE
THIS DOCTRINE OF A TAX SITUS SEPARATE FROM RESIDENCE, BUT NO OTHER
STATE EVER SOUGHT TO TAKE ADVANTAGE OF THE 'RECIPROCITY' PROFFER." 
WHEELING STEEL CORP. V. GLANDER, SUPRA, AT 573-574. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE HARLAN JOINS, CONCURRING. 

WE HOLD TODAY THAT OHIO'S AD VALOREM TAX LAW DOES NOT VIOLATE THE
EQUAL PROTECTION CLAUSE IN SUBJECTING THE PROPERTY OF OHIO CORPORATIONS
TO A TAX NOT APPLIED TO IDENTICAL PROPERTY OF NON-OHIO CORPORATIONS. 
YET IN WHEELING STEEL CORP. V. GLANDER, 337 U.S. 562, (FN1) THE COURT
STRUCK DOWN, AS VIOLATING THE EQUAL PROTECTION CLAUSE, ANOTHER
PROVISION OF OHIO'S AD VALOREM TAX LAW WHICH SUBJECTED THE PROPERTY OF
NON-OHIO CORPORATIONS TO A TAX NOT APPLIED TO IDENTICAL PROPERTY OF
OHIO CORPORATIONS.  (FN2) 

THE QUESTION PRESENTED IN THE TWO CASES, IF STATED GENERALLY, AND AS
I SHALL SHOW, SOMEWHAT SUPERFICIALLY, IS:  MEASURED BY THE DEMANDS OF
THE EQUAL PROTECTION CLAUSE, IS A STATE CONSTITUTIONALLY PERMITTED
SEPARATELY TO CLASSIFY DOMESTIC AND FOREIGN CORPORATIONS FOR THE
PURPOSES OF PAYMENT OF OR EXEMPTION FROM AN AD VALOREM TAX?  IN BOTH
CASES THE DISTINCTION COMPLAINED OF AS DENYING EQUAL PROTECTION OF THE
LAWS IS THAT THE INCIDENCE OF THE TAX IN FACT TURNS ON "THE DIFFERENT
RESIDENCE OF THE OWNER."  WITH DUE RESPECT TO MY BRETHREN'S VIEW, I
THINK THAT IF THIS WERE ALL THAT THE MATTER WAS, WHEELING AND THIS CASE
WOULD BE INDISTINGUISHABLE.  (FN3)  THEREFORE, WHILE I AGREE WITH MY
BRETHREN THAT THE CLASSIFICATION IS VALID IN THIS CASE, I CANNOT REACH
THAT CONCLUSION WITHOUT DEVELOPING THE GROUND ON WHICH WHEELING IS
DISTINGUISHABLE. 

WHY IS THE "DIFFERENT RESIDENCE OF THE OWNER" A CONSTITUTIONALLY
VALID BASIS FOR OHIO'S FREEING THE PROPERTY OF THE FOREIGN CORPORATION
FROM THE TAX IN THIS CASE AND AN INVALID BASIS FOR ITS FREEING THE
PROPERTY OF THE DOMESTIC CORPORATION FROM THE TAX INVOLVED IN THE
WHEELING CASE? 

I THINK THAT THE ANSWER LIES IN REMEMBERING THAT OUR CONSTITUTION IS
AN INSTRUMENT OF FEDERALISM.  THE CONSTITUTION FURNISHES THE STRUCTURE
FOR THE OPERATION OF THE STATES WITH RESPECT TO THE NATIONAL GOVERNMENT
AND WITH RESPECT TO EACH OTHER.  THE MAINTENANCE OF THE PRINCIPLES OF
FEDERALISM IS A FOREMOST CONSIDERATION IN INTERPRETING ANY OF THE
PERTINENT CONSTITUTIONAL PROVISIONS UNDER WHICH THIS COURT EXAMINES
STATE ACTION.  BECAUSE THERE ARE 49 STATES AND MUCH OF THE NATION'S
COMMERCIAL ACTIVITY IS CARRIED ON BY ENTERPRISES HAVING CONTACTS WITH
MORE STATES THAN ONE, A COMMON AND CONTINUING PROBLEM OF CONSTITUTIONAL
INTERPRETATION HAS BEEN THAT OF ADJUSTING THE DEMANDS OF INDIVIDUAL
STATES TO REGULATE AND TAX THESE ENTERPRISES IN LIGHT OF THE MULTISTATE
NATURE OF OUR FEDERATION.  WHILE THE MOST READY EXAMPLES OF THE COURT'S
FUNCTION IN THIS FIELD ARE FURNISHED BY THE INNUMERABLE CASES IN WHICH
THE COURT HAS EXAMINED STATE TAXATION AND REGULATION UNDER THE COMMERCE
AND DUE PROCESS CLAUSES, STILL THE EQUAL PROTECTION CLAUSE, AMONG ITS
OTHER ROLES, OPERATES TO MAINTAIN THIS PRINCIPLE OF FEDERALISM. 

VIEWING THE EQUAL PROTECTION CLAUSE AS AN INSTRUMENT OF FEDERALISM,
THE DISTINCTION BETWEEN WHEELING AND THIS CASE SEEMS TO ME TO BE
APPARENT.  MY BRETHREN'S OPINION TODAY DEMONSTRATES THAT IN DEALING
WITH AS PRACTICAL AND COMPLEX A MATTER AS TAXATION, THE UTMOST
LATITUDE, UNDER THE EQUAL PROTECTION CLAUSE, MUST BE AFFORDED A STATE
IN DEFINING CATEGORIES OF CLASSIFICATION.  BUT IN THE CASE OF AN AD
VALOREM PROPERTY TAX, WHEELING TEACHES THAT A DISTINCTION WHICH BURDENS
THE PROPERTY OF NONRESIDENTS BUT NOT LIKE PROPERTY OF RESIDENTS IS
OUTSIDE THE CONSTITUTIONAL PALE.  BUT THIS IS NOT BECAUSE NO RATIONAL
GROUND CAN BE CONCEIVED FOR A CLASSIFICATION WHICH DISCRIMINATES
AGAINST NONRESIDENTS SOLELY BECAUSE THEY ARE NONRESIDENTS:  COULD NOT
SUCH A GROUND BE FOUND IN THE STATE'S BENIGN AND BENEFICENT DESIRE TO
FAVOR ITS OWN RESIDENTS, TO INCREASE THEIR PROSPERITY AT THE EXPENSE OF
OUTLANDERS, TO PROTECT THEM FROM, AND GIVE THEM AN ADVANTAGE OVER,
"FOREIGN" COMPETITION?  THESE BASES OF LEGISLATIVE DISTINCTION ARE
ADOPTED IN THE NATIONAL POLICIES OF TOO MANY COUNTRIES, INCLUDING FROM
TIME TO TIME OUR OWN, TO SAY THAT, ABSOLUTELY CONSIDERED, THEY ARE
ARBITRARY OR IRRATIONAL.  THE PROPER ANALYSIS, IT SEEMS TO ME, IS THAT
WHEELING APPLIED THE EQUAL PROTECTION CLAUSE TO GIVE EFFECT TO ITS ROLE
TO PROTECT OUR FEDERALISM BY DENYING OHIO THE POWER CONSTITUTIONALLY TO
DISCRIMINATE IN FAVOR OF ITS OWN RESIDENTS AGAINST THE RESIDENTS OF
OTHER STATE MEMBERS OF OUR FEDERATION.  ON THE OTHER HAND, IN THE
PRESENT CASE, OHIO'S CLASSIFICATION BASED ON RESIDENCE OPERATES AGAINST
OHIO RESIDENTS AND CLEARLY PRESENTS NO STATE ACTION DISRUPTIVE OF THE
FEDERAL PATTERN.  THERE IS, THEREFORE, NO REASON TO JUDGE THE STATE
ACTION MECHANICALLY BY THE SAME PRINCIPLES AS STATE EFFORTS TO FAVOR
RESIDENTS.  AS MY BRETHREN'S OPINION MAKES CLEAR, A RATIONAL BASIS CAN
BE FOUND FOR THIS EXERCISE BY OHIO OF THE LATITUDE PERMITTED IT TO
DEFINE CLASSIFICATIONS UNDER THE EQUAL PROTECTION CLAUSE.  ONE COULD,
IN FACT, BE FOUND IN THE CONCEPT THAT IT IS PROPER THAT THOSE WHO ARE
BOUND TO A STATE BY THE TIE OF RESIDENCE AND ACCORDINGLY THE MORE
PERMANENTLY RECEIVE ITS BENEFITS ARE PROPER PERSONS TO BEAR THE PRIMARY
SHARE OF ITS COSTS.  ACCORDINGLY, IN THIS CONTEXT, IT IS PROPER TO SAY
THAT ANY RELIEF FORTHCOMING MUST BE OBTAINED FROM THE STATE
LEGISLATURE. 

FN1  TO THE SAME EFFECT AS THE WHEELING CASE ARE SOUTHERN R. CO. V.
GREENE, 216 U.S. 400, AND HANOVER FIRE INS. CO. V. HARDING, 272 U.S.
494. 

FN2  THE COURT DISTINGUISHED AD VALOREM PROPERTY TAXES, LEVIED ON A
FOREIGN CORPORATION PERMITTED TO DO A LOCAL BUSINESS, FROM AN ORIGINAL
ENTRY PRIVILEGE TAX ON A FOREIGN CORPORATION.  337 U.S., AT 571-572. 
"A CORPORATION WHICH IS ALLOWED TO COME INTO A STATE AND THERE CARRY ON
ITS BUSINESS MAY CLAIM, AS AN INDIVIDUAL MAY CLAIM, THE PROTECTION OF
THE FOURTEENTH AMENDMENT AGAINST A SUBSEQUENT APPLICATION TO IT OF
STATE LAW."  CONNECTICUT GENERAL LIFE INS. CO. V. JOHNSON, 303 U.S. 77,
79-80. 

FN3  THE STATUTE IN WHEELING "DISCRIMINATED" AGAINST NONRESIDENTS IN
THE SAME WAY THAT THE PRESENT STATUTE "DISCRIMINATES" AGAINST
RESIDENTS.  WHAT MY BRETHREN DESCRIBE AS THE FORBIDDEN PURPOSE OF THE
DISTINCTION IN WHEELING SEEMS TO ME CLEARLY TO BE ONLY A REJECTED
ARGUMENT MADE BY THE STATE TO SHOW THAT THERE WAS NO DISCRIMINATION IN
FACT.  337 U.S., AT 572-574.  I SEE NO INDICATION IN WHEELING THAT THE
COURT'S CONDEMNATION OF THE TAX WAS BASED SOLELY ON ITS REJECTION OF
THE "RECIPROCITY" ARGUMENT. 
..END :













YOUNGSTOWN SHEET & TUBE CO. V. BOWERS 358 U.S. 534 


NO. 9.  ARGUED NOVEMBER 12, 1958 - DECIDED FEBRUARY 24, 1959* - 166 OHIO
ST. 122, 140 N.E.2D 313, AFFIRMED - 2 WIS. 2D 567, 87 N.W.2D 481,
AFFIRMED. 

*TOGETHER WITH NO. 44, UNITED STATES PLYWOOD CORP. V. CITY OF ALGOMA,
ON CERTIORARI TO THE SUPREME COURT OF WISCONSIN, ARGUED NOVEMBER 12-13,
1958. 


1.  ON THE RECORDS IN THESE TWO CASES, HELD THAT MANUFACTURING
CORPORATIONS WHICH IMPORTED MATERIALS FOR THEIR OWN USE IN THEIR
CURRENT MANUFACTURING OPERATIONS HAD SO ACTED UPON THEM AS TO CAUSE
THEM TO LOSE THEIR DISTINCTIVE CHARACTER AS "IMPORTS" WITHIN THE
MEANING OF THAT TERM AS USED IN THE IMPORT-EXPORT CLAUSE OF THE
CONSTITUTION AND THAT, THEREFORE, THE MATERIALS HAD BECOME SUBJECT TO
STATE TAXATION.  HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652,
DISTINGUISHED.  PP. 536-550. 

2.  IN THE YOUNGSTOWN CASE, A MANUFACTURER OF IRON AND STEEL IMPORTED
IRON ORE FOR USE IN ITS OWN MANUFACTURING PROCESS.  UPON ARRIVAL AT
DESTINATION, THESE ORES WERE STORED IN "ORE YARDS" ADJACENT TO THE
FURNACES.  THE DAILY ORE NEEDS OF THE PLANT WERE TAKEN FROM THOSE "ORE
YARDS" AND CONVEYED TO "STOCK BINS," FROM WHICH THE ORES WERE FED INTO
THE FURNACES.  OHIO ASSESSED AN AD VALOREM TAX BASED ON THE AVERAGE
VALUE OF THE ORE IN THESE "ORE YARDS" DURING THE TAX YEAR.  HELD:
SINCE THESE ORES WERE NOT ONLY NEEDED, IMPORTED AND IRREVOCABLY
COMMITTED TO SUPPLY, BUT WERE ACTUALLY BEING USED TO SUPPLY, THE DAILY
REQUIREMENTS OF THE MANUFACTURING PLANT, THEY HAD LOST THEIR
DISTINCTIVE CHARACTER AS "IMPORTS" AND ALL TAX IMMUNITY AS SUCH.  PP.
536-538, 545-547. 

3.  IN THE PLYWOOD CASE, A MANUFACTURER OF VENEERED WOOD PRODUCTS
IMPORTED "GREEN" LUMBER "IN BULK" AND VENEERS "IN BUNDLES" FOR USE IN
ITS OWN MANUFACTURING PROCESS.  UPON ARRIVAL AT DESTINATION, THE LUMBER
WAS STACKED IN YARDS "ADJACENT" TO ITS MANUFACTURING PLANT IN SUCH A
WAY AS TO FACILITATE AIR-DRYING.  FROM TIME TO TIME, SO MUCH OF THE
LUMBER AS WAS ABOUT TO BE PUT INTO VENEERED PRODUCTS WAS TAKEN FROM THE
STACKS AND PLACED IN A KILN, WHERE THE DRYING WAS COMPLETED.  THE
IMPORTED VENEERS WERE RECEIVED "IN BUNDLES" AND KEPT IN THAT FORM IN
PILES, SEPARATED AS TO SPECIE, IN THE MANUFACTURER'S PLANT FOR USE AS
NEEDED IN THE DAY-TO-DAY OPERATIONS OF THE PLANT.  THE CITY ASSESSED A
TAX AGAINST PETITIONER, BASED UPON THE VALUE OF ONE-HALF OF THE
IMPORTED LUMBER AND VENEERS THEN ON HAND.  HELD:  THE LUMBER AND
VENEERS THAT WERE TAXED WERE NOT ONLY NEEDED, IMPORTED AND IRREVOCABLY
COMMITTED TO SUPPLY, BUT ACTUALLY WERE BEING USED TO SUPPLY, THE DAILY
REQUIREMENTS OF THE MANUFACTURING PLANT, AND THEY HAD LOST THEIR
DISTINCTIVE CHARACTER AS "IMPORTS" AND ALL TAX IMMUNITY AS SUCH.  PP.
538-540, 547-548. 

4.  IN THE PLYWOOD CASE, THE FACT THAT THE VENEERS WERE RECEIVED IN
"BUNDLES" WHICH WERE NOT OPENED UNTIL THE VENEERS WERE PUT INTO THE
DAILY MANUFACTURING OPERATIONS OF THE PLANT DOES NOT REQUIRE A
DIFFERENT RESULT.  PP. 548-549. 

5.  IN THE YOUNGSTOWN CASE, THE FACT THAT A TAX WAS LEVIED BY OHIO ON
DOMESTIC ORES STORED ON PUBLIC DOCKS IN OHIO, WHEREAS MERCHANDISE
BELONGING TO A NON-RESIDENT WHEN "HELD IN A STORAGE WAREHOUSE FOR
STORAGE ONLY" WAS EXEMPTED FROM TAXATION, DID NOT DENY TO APPELLANT, A
RESIDENT OF OHIO, THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE
FOURTEENTH AMENDMENT.  ALLIED STORES V. BOWERS, ANTE, P. 522.  PP. 550
551. 

YOUNGSTOWN SHEET & TUBE CO. V. BOWERS, TAX COMMISSIONER OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION PRESENTED BY THESE CASES IS WHETHER APPELLANT
IN NO. 9, THE YOUNGSTOWN SHEET AND TUBE COMPANY, AND PETITIONER IN NO.
44, UNITED STATES PLYWOOD CORPORATION, HAVE SO ACTED UPON THE MATERIALS
WHICH THEY HAVE IMPORTED FOR USE IN THEIR MANUFACTURING OPERATIONS AS
TO CAUSE THEM TO LOSE THEIR DISTINCTIVE CHARACTER AS "IMPORTS," WITHIN
THE MEANING OF THAT TERM AS USED IN THE IMPORT-EXPORT CLAUSE, ART. I,
SEC. 10, CL. 2, OF THE UNITED STATES CONSTITUTION.  (FN1)  THE SUPREME
COURTS OF THE STATES CONCERNED HAVE HELD THAT THESE MANUFACTURERS HAVE
DONE SO.  OUR TASK IS TO DECIDE WHETHER, ON THE PARTICULAR FACTS
INVOLVED, THESE HOLDINGS VIOLATE THE IMPORT-EXPORT CLAUSE OF THE
CONSTITUTION. 

THE FACTS IN THE YOUNGSTOWN CASE ARE STIPULATED.  IN ESSENCE, THEY
ARE THAT YOUNGSTOWN, AN OHIO CORPORATION, OPERATES AN INDUSTRIAL PLANT
IN OR NEAR YOUNGSTOWN, OHIO, WHERE IT MANUFACTURES IRON AND STEEL.  IN
ADDITION TO THE USE OF DOMESTIC ORES, IT IMPORTS IRON ORES FROM FIVE
COUNTRIES "FOR ULTIMATE USE IN ITS OPEN HEARTH AND BLAST FURNACES" IN
ITS MANUFACTURING PROCESSES.  THE IMPORTED ORES ARRIVE IN SHIPLOADS "IN
BULK" EITHER AT AN ATLANTIC OR A LAKE ERIE PORT OF ENTRY WHERE THEY ARE
UNLOADED FROM THE SHIP INTO RAILROAD CARS AND ARE THEREBY TRANSPORTED
TO YOUNGSTOWN'S PLANT IN OHIO.   THE PLANT IS ENCLOSED BY A WIRE
FENCE.  WITHIN THE ENCLOSURE AND "ADJACENT TO THE MANUFACTURING
FACILITIES" ARE SEVERAL "ORE YARDS" FOR THE STORAGE OF SUPPLIES OF
ORE.  (FN2)  EACH ORE YARD CONSISTS OF "TWO PARALLEL WALLS, ON WHICH
THERE IS A MOVABLE ORE BRIDGE."  WHEN THE IMPORTED ORES ARRIVE AT THIS
FINAL DESTINATION, THEY ARE UNLOADED INTO ONE OF THE ORE YARDS, BUT,
BECAUSE THE ORE FROM EACH COUNTRY IS DIFFERENT FROM THE OTHERS AND EACH
IS IMPORTED FOR A DIFFERENT USE, THE ORES ARE KEPT SEGREGATED AS TO THE
COUNTRY OF ORIGIN BY BEING "PLACED IN A SEPARATE PILE IN A SEPARATE
AREA OF THE ORE YARD."  THE DAILY MANUFACTURING NEEDS FOR ORE ARE TAKEN
FROM THESE PILES.  AS NEEDED, ORES ARE CONVEYED FROM THE PARTICULAR
PILE OR PILES SELECTED TO "STOCK BINS" OR "STOCK HOUSES," HOLDING ONE
OR TWO DAYS' SUPPLY AND LOCATED IN CLOSE PROXIMITY TO THE FURNACES,
FROM WHICH THE ORES ARE FED INTO THE FURNACES.  AS ORE FROM A
PARTICULAR "PILE" IN THE ORE YARD IS THUS TAKEN AND CONSUMED, OTHER
LIKE ORE IS SIMILARLY IMPORTED FROM THE SAME COUNTRY AND IS BROUGHT TO
THE PLANT AND UNLOADED ON TOP OF THE REMAINDER OF THAT PARTICULAR
PILE.  THIS COURSE IS CONTINUOUSLY REPEATED.   YOUNGSTOWN ENDEAVORS TO
MAINTAIN "A SUPPLY OF IMPORTED ORES TO MEET ITS ESTIMATED REQUIREMENTS
FOR A PERIOD OF AT LEAST THREE MONTHS."  THE ORES ARE NOT IMPORTED "FOR
RESALE," BUT "FOR USE IN MANUFACTURING AT THE OHIO PLANT." 

ACTING UNDER OHIO STATUTES WHICH PROVIDE, INTER ALIA, THAT "ALL
PERSONAL PROPERTY LOCATED AND USED IN BUSINESS IN THIS STATE SHALL BE
SUBJECT TO TAXATION  ...  " (FN3) AND THAT "PERSONAL PROPERTY IS 'USED'
WITHIN THE MEANING OF 'USED IN BUSINESS'  ...  WHEN STORED OR KEPT ON
HAND AS MATERIAL, PARTS, PRODUCTS, OR MERCHANDISE  ...  ," (FN4) THE
TAX COMMISSIONER OF OHIO PROPOSED TO ASSESS AN AD VALOREM TAX AGAINST
YOUNGSTOWN BASED ON THE AVERAGE VALUE OF THE IRON ORES IN ITS ORE YARDS
DURING THE TAX YEAR ENDED JANUARY 1, 1954.  (FN5)  YOUNGSTOWN CONTESTED
THE PROPOSED ASSESSMENT.  IT CONTENDED, AMONG OTHER THINGS, THAT THE
IMPORTED ORES HAD NOT LOST THEIR CHARACTER AS IMPORTS AND WERE
THEREFORE IMMUNE FROM STATE TAXATION UNDER ART. I, SEC. 10, CL. 2 OF
THE UNITED STATES CONSTITUTION. 

AFTER EXHAUSTION OF ADMINISTRATIVE PROCEEDINGS, THE CASE REACHED THE
SUPREME COURT OF OHIO.  IT HELD THAT THE "PROTECTION OF THE IMPORT
EXPORT CLAUSE CANNOT EXTEND TO SUCH IRON ORE (1) AFTER IT HAS BEEN
COMMINGLED WITH OTHER IRON ORE IMPORTED AT A DIFFERENT TIME, EVEN
THOUGH SUCH OTHER IRON ORE IS OF THE SAME GRADE AND WAS IMPORTED FROM
THE SAME PLACE, AND (2) AFTER PORTIONS OF SUCH IRON ORE HAVE BEEN
REMOVED FOR USE IN MANUFACTURING."  IT THEN ENTERED JUDGMENT SUSTAINING
THE TAX, 166 OHIO ST. 122, 140 N.E.2D 313, AND WE NOTED PROBABLY
JURISDICTION OF YOUNGSTOWN'S APPEAL.  355 U.S. 911. 

THE FACTS IN THE UNITED STATES PLYWOOD CORPORATION CASE WERE FOUND IN
DETAIL BY THE TRIAL COURT AND THOSE FINDINGS ARE NOT CHALLENGED HERE. 
IN ESSENCE, THEY ARE THAT UNITED STATES PLYWOOD CORPORATION
(PETITIONER) OPERATES AN INDUSTRIAL PLANT IN ALGOMA, WISCONSIN, WHERE
IT MANUFACTURES VENEERED WOOD PRODUCTS.  IT USES BOTH DOMESTIC AND
IMPORTED LUMBER AND VENEERS IN ITS MANUFACTURING PROCESSES.  THE
IMPORTED LUMBER IS SHIPPED IN RAILROAD CARS DIRECTLY FROM CANADA TO
PETITIONER'S PLANT.  IT IS UNFINISHED, AND IS RECEIVED IN BULK OR AS
LOOSE, INDIVIDUAL PIECES OR BOARDS.  IT IS ALSO "GREEN" WHEN RECEIVED
AND THEREFORE MUST BE DRIED BEFORE IT CAN BE USED BY PETITIONER.  UPON
ARRIVAL AT DESTINATION, IT IS UNLOADED AND CARTED TO PETITIONER'S
STORAGE YARD, LOCATED "ADJACENT" TO ITS PLANT, WHERE IT IS STACKED IN
THE OPEN IN SUCH A WAY AS TO ALLOW THE AIR FREELY TO CIRCULATE THROUGH
THE STACKS FOR THE "DOMINANT PURPOSE" OF AIR-DRYING IT.  THIS METHOD
DOES NOT SO COMPLETELY DRY THE LUMBER AS TO MAKE KILN-DRYING
UNNECESSARY, BUT IT DOES MATERIALLY REDUCE THE TIME AND EXPENSE OF THAT
PROCESS.  FROM TIME TO TIME, SO MUCH OF THE LUMBER AS IS ABOUT TO BE
PUT INTO VENEERED PRODUCTS IS TAKEN FROM THE STACKS AND PLACED IN A
KILN WHERE THE DRYING IS COMPLETED AND THE LUMBER READIED FOR USE.  THE
VENEERS ARE IMPORTED FROM THREE COUNTRIES.  THEY ARE RECEIVED IN
BUNDLES AND ARE KEPT IN THAT FORM IN PILES, SEPARATED AS TO SPECIE, IN
PETITIONER'S PLANT FOR USE AS NEEDED IN THE DAY-TO-DAY OPERATIONS OF
THE PLANT. 

ON THE ASSESSMENT DATE OF MAY 1, 1955, THE ASSESSOR OF THE CITY OF
ALGOMA, ACTING UNDER WHAT IS NOW WIS. STAT., 1957, SEC. 70.01, ASSESSED
A TAX AGAINST PETITIONER BASED UPON THE VALUE OF ONE-HALF OF THE
IMPORTED LUMBER AND VENEERS THEN ON HAND.  PETITIONER PAID THE TAX AND
THEN SUED IN THE STATE COURT FOR ITS RECOVERY.  THE TRIAL COURT ALSO
FOUND THAT AIR-DRYING THE LUMBER "WAS PART OF PETITIONER'S
MANUFACTURING PRACTICES," AND THAT, WHEN STACKED FOR AIR-DRYING, THE
LUMBER "ENTERED THE PROCESS OF MANUFACTURE" AND THUS LOST ITS CHARACTER
AS AN "IMPORT," AND THEREFORE ALL OF IT MIGHT LAWFULLY HAVE BEEN TAXED
BY THE CITY.  THE COURT FURTHER FOUND THAT THE LUMBER AND VENEERS HAD
BEEN IMPORTED BY PETITIONER "FOR USE IN MANUFACTURING" AT ITS ALGOMA
PLANT, AND THAT THEIR IMPORTATION JOURNEYS DEFINITELY HAD ENDED; THAT
THE LUMBER AND VENEERS THAT WERE TAXED (ONE-HALF OF THE AMOUNTS ON
HAND) HAD BEEN IRREVOCABLY COMMITTED TO "USE IN MANUFACTURING" AT THAT
PLANT, WERE "NECESSARILY REQUIRED TO BE KEPT ON HAND TO MEET
PETITIONER'S CURRENT OPERATIONAL NEEDS," WERE BEING "USED IN
MANUFACTURING," AND HAD THEREFORE LOST THEIR CHARACTER AS "IMPORTS" AND
WERE SUBJECT TO LOCAL TAXATION.  IT THEN ENTERED JUDGMENT FOR THE CITY,
SUSTAINING THE TAX, AND, ON PETITIONER'S APPEAL, THE SUPREME COURT OF
WISCONSIN AFFIRMED.  2 WIS. 2D 567, 87 N.W.2D 481.  BECAUSE OF THE
IMPORTANCE OF THE CONSTITUTIONAL QUESTION PRESENTED WE GRANTED
CERTIORARI.  356 U.S. 957. 

THE CONSTITUTION CONFERS ON CONGRESS THE POWER TO LAY AND COLLECT
IMPORT DUTIES, ART. I, SEC. 8, AND PROVIDES THAT "NO STATE SHALL,
WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY IMPOST OR DUTIES ON
IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR
EXECUTING IT'S INSPECTION LAWS  ... ."  ART. I, SEC. 10, CL. 2.  THAT
THESE PROVISIONS WERE INTENDED TO CONFER ON THE NATIONAL GOVERNMENT THE
EXCLUSIVE POWER TO TAX THE ACT OF IMPORTATION IS PLAIN FROM THEIR
TERMS.  AND EARLY IN OUR NATIONAL HISTORY CHIEF JUSTICE MARSHALL HELD,
IN THE LANDMARK CASE OF BROWN V. MARYLAND, 12 WHEAT.  419, THAT ONE WHO
HAD IMPORTED GOODS FOR THE PURPOSE OF SELLING THEM HAD, "BY PAYMENT OF
THE DUTY TO THE UNITED STATES, ACQUIRED THE RIGHT TO DISPOSE OF HIS
MERCHANDISE, AS WELL AS TO BRING IT INTO THE COUNTRY" (ID., AT 442),
AND THAT THE STATE COULD NOT TAX IT "WHILE REMAINING THE PROPERTY OF
THE IMPORTER, IN HIS WAREHOUSE, IN THE ORIGINAL FORM OR PACKAGE IN
WHICH IT WAS IMPORTED."  (FN6)  ID., AT 442.  BUT HE MADE VERY CLEAR
THAT "  ...  THERE MUST BE A POINT OF TIME WHEN THE PROHIBITION CEASES,
AND THE POWER OF THE STATE TO TAX COMMENCES."  ID., AT 441. 
ELABORATING THIS CONCEPT, HE SAID: 

"THE CONSTITUTIONAL PROHIBITION ON THE STATES TO LAY A DUTY ON
IMPORTS  ...  MAY CERTAINLY COME IN CONFLICT WITH THEIR ACKNOWLEDGED
POWER TO TAX PERSONS AND PROPERTY WITHIN THEIR TERRITORY.  THE POWER,
AND THE RESTRICTION ON IT, THOUGH QUITE DISTINGUISHABLE WHEN THEY DO
NOT APPROACH EACH OTHER, MAY YET  ...  APPROACH SO NEARLY AS TO PERPLEX
THE UNDERSTANDING  ...  .  YET THE DISTINCTION EXISTS, AND MUST BE
MARKED AS THE CASES ARISE.  TILL THEY DO ARISE, IT MIGHT BE PREMATURE
TO STATE ANY RULE AS BEING UNIVERSAL IN ITS APPLICATION.  IT IS
SUFFICIENT FOR THE PRESENT TO SAY, GENERALLY, THAT WHEN THE IMPORTER
HAS SO ACTED UPON THE THING IMPORTED, THAT IT HAS BECOME INCORPORATED
AND MIXED UP WITH THE MASS OF PROPERTY IN THE COUNTRY, IT HAS, PERHAPS,
LOST ITS DISTINCTIVE CHARACTER AS AN IMPORT, AND HAS BECOME SUBJECT TO
THE TAXING POWER OF THE STATE  ...  ."  ID., AT 441-442. 

WHILE CHIEF JUSTICE MARSHALL DID NOT UNDERTAKE DEFINITIVELY TO STATE
JUST WHAT ACTS OR CONDUCT OF THE IMPORTER WOULD BE DEEMED TO HAVE "SO
ACTED UPON THE THING IMPORTED" AS TO CAUSE IT TO BE "MIXED UP WITH THE
MASS OF PROPERTY IN THE COUNTRY AND TO LOSE ITS DISTINCTIVE CHARACTER
AS AN IMPORT," HE DID SPECIFY SOME OF THE ACTS THAT WOULD SO RESULT. 
HE HELD THAT THE GOODS LOSE THEIR CHARACTER AS IMPORTS WHEN THE
IMPORTER (1) "SELLS THEM," (FN7) OR (2) "BREAKS UP HIS PACKAGES, AND
TRAVELS WITH THEM AS AN ITINERANT PEDLAR."  ID., AT 443.  MORE
IMPORTANT TO THE QUESTION CONFRONTING US, HE ALSO HELD (3) THAT GOODS
BROUGHT INTO THIS COUNTRY BY AN IMPORTER "FOR HIS OWN USE" AND HERE
"USED" BY HIM ARE TO BE REGARDED AS A PART OF "THE COMMON MASS" OF
PROPERTY AND ARE NOT IMMUNE FROM STATE TAXATION.  (FN8) 

IN HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652, IT WAS HELD THAT
GOODS IMPORTED FOR "USE" SHARE THE SAME IMMUNITY AS GOODS IMPORTED FOR
"SALE," AND THAT GOODS IMPORTED "FOR MANUFACTURE DO NOT LOSE THEIR
CHARACTER AS IMPORTS ANY SOONER OR MORE READILY THAN IMPORTS FOR SALE"
(ID., AT 667); BUT "WHEN THE IMPORTED GOODS ARE USED FOR THE PURPOSE
FOR WHICH THEY ARE IMPORTED, THEY CEASE TO BE IMPORTS AND THEIR TAX
EXEMPTION IS AT AN END."  ID., AT 665. 

THUS, THOUGH BROWN V. MARYLAND, SUPRA, HOLDS THAT GOODS BROUGHT INTO
THE COUNTRY BY AN IMPORTER "FOR HIS OWN USE" ARE NOT EXEMPTED FROM
STATE TAXATION BY THE IMPORT-EXPORT CLAUSE, AND HOOVEN & ALLISON CO. V.
EVATT, SUPRA, HOLDS THAT THEY ARE, BOTH AGREE THAT WHEN THE IMPORTED
GOODS ARE "USED FOR THE PURPOSE FOR WHICH THEY ARE IMPORTED, THEY CEASE
TO BE IMPORTS AND THEIR TAX EXEMPTION IS AT AN END."  HOOVEN & ALLISON
CO. V. EVATT, SUPRA, AT 665.  COMPARE BROWN V. MARYLAND, SUPRA, AT 441
443. 

DO THE FACTS AS STIPULATED AND FOUND IN THE CASES BEFORE US, WHEN
CONSIDERED IN THE LIGHT OF APPLICABLE LEGAL PRINCIPLES, SHOW THAT THESE
MANUFACTURERS HAVE SO ACTED UPON THE IMPORTED MATERIALS AS TO CAUSE
THEM TO LOSE THEIR DISTINCTIVE CHARACTER AS "IMPORTS" BY IRREVOCABLY
COMMITTING THEM, AFTER THEIR IMPORTATION JOURNEYS HAVE DEFINITELY
ENDED, TO "USE IN MANUFACTURING" AT THE PLANT AND POINT OF FINAL
DESTINATION, AND BY "ENTERING" AND "USING" THEM "IN MANUFACTURING" AT
THAT PLACE?  THE MANUFACTURERS, RELYING UPON THEIR UNDERSTANDING OF THE
HOOVEN CASE, ARGUE THAT THEY DO NOT, BUT WE HAVE CONCLUDED THAT THEY
DO. 

IN HOOVEN THE TAXPAYER HAD IMPORTED BALES OF HEMP AND OTHER FIBERS
WHICH IT STORED IN ITS WAREHOUSE AT ITS FACTORY IN OHIO WITH THE
INTENTION OF EVENTUALLY USING THEM IN THE MANUFACTURE OF CORDAGE AND
SIMILAR PRODUCTS.  OHIO SOUGHT TO LAY AN AD VALOREM TAX ON THE BALES OF
FIBERS SO STORED IN THE TAXPAYER'S WAREHOUSE.  THE TAXPAYER CONTENDED
THAT THE BALES OF FIBERS WERE "IMPORTS" AND THUS IMMUNE FROM STATE
TAXATION UNDER THE IMPORT-EXPORT CLAUSE OF THE CONSTITUTION.  THE
SUPREME COURT OF OHIO "THOUGHT THAT BROWN V. MARYLAND, SUPRA, LAID DOWN
A RULE APPLICABLE ONLY TO IMPORTS FOR THE PURPOSE OF SALE, AND THAT
IMPORTS FOR USE BECAME, UPON STORAGE, EVEN IF STILL IN THE ORIGINAL
PACKAGE, SO INTERMINGLED WITH THE COMMON MASS OF PROPERTY WITHIN THE
STATE AS TO BE SUBJECT TO THE STATE POWER OF TAXATION" (324 U.S., AT
655), AND UPON THAT GROUND UPHELD THE TAX.  THIS COURT, HOLDING THAT
THE TAX IMMUNITY APPLIES TO GOODS IMPORTED FOR "USE" AS WELL AS FOR
"SALE," THAT THE BALES OF FIBERS WOULD NOT LOSE THEIR CHARACTER AS
IMPORTS "UNTIL THEY WERE PUT TO THE USE FOR WHICH THEY WERE IMPORTED"
(ID., AT 665), AND THAT THE FIBERS WERE NOT SHOWN BY THE RECORD IN THAT
CASE TO HAVE BEEN "SUBJECTED TO MANUFACTURE WHEN THEY WERE PLACED IN
THE TAXPAYER'S WAREHOUSE IN THEIR ORIGINAL PACKAGES" (ID., AT 667),
REVERSED THE JUDGMENT.  BUT THE RECORD THERE DID NOT PRESENT, AND THIS
COURT DID NOT REACH OR DECIDE, THE QUESTION WE HAVE HERE.  INDEED, THE
COURT EXPRESSLY RESERVED IT.  IT SAID:    "IT IS UNNECESSARY TO DECIDE
WHETHER, FOR PURPOSES OF THE CONSTITUTIONAL IMMUNITY, THE PRESENCE OF
SOME FIBERS IN THE FACTORY WAS SO ESSENTIAL TO CURRENT MANUFACTURING
REQUIREMENTS THAT THEY COULD BE SAID TO HAVE ENTERED THE PROCESS OF
MANUFACTURE, AND HENCE WERE ALREADY PUT TO THE USE FOR WHICH THEY WERE
IMPORTED, BEFORE THEY WERE REMOVED FROM THE ORIGINAL PACKAGES.  EVEN
THOUGH THE INVENTORY OF RAW MATERIAL REQUIRED TO BE KEPT ON HAND TO
MEET THE CURRENT OPERATIONAL NEEDS OF A MANUFACTURING BUSINESS COULD BE
THOUGHT TO HAVE THEN ENTERED THE MANUFACTURING PROCESS, THE DECISION OF
THE OHIO SUPREME COURT DID NOT REST ON THAT GROUND, AND THE RECORD
AFFORDS NO BASIS FOR SAYING THAT ANY PART OF PETITIONER'S FIBERS,
STORED IN ITS WAREHOUSE, WERE REQUIRED TO MEET SUCH IMMEDIATE CURRENT
NEEDS.   HENCE WE HAVE NO OCCASION TO CONSIDER THAT QUESTION."  ID., AT
667. 

UNLIKE HOOVEN, THESE ARE NOT CASES OF THE MERE STORAGE IN A WAREHOUSE
OF IMPORTED MATERIALS INTENDED FOR EVENTUAL USE IN MANUFACTURING BUT
NOT FOUND TO HAVE BEEN ESSENTIAL TO CURRENT OPERATIONAL NEEDS.  HERE
THE OHIO AND WISCONSIN COURTS HAVE IN EFFECT HELD THAT THE STIPULATED
AND FOUND FACTS SHOW THAT THE IMPORTED MATERIALS THAT WERE TAXED BY
THOSE STATES WERE SO ESSENTIAL TO CURRENT MANUFACTURING REQUIREMENTS
THAT THEY MUST BE SAID TO HAVE ENTERED THE PROCESS OF MANUFACTURE, AND
THOSE COURTS HAVE RESTED THEIR JUDGMENTS, IN MAJOR PART AT LEAST, ON
THAT GROUND.  OUR QUESTION THEREFORE IS PRECISELY THE ONE WHICH THE
COURT DID NOT REACH OR CONSIDER IN THE HOOVEN CASE. 

WE ARE THEREFORE CONFRONTED WITH THE PRACTICAL, ALBEIT VEXING,
PROBLEM OF RECONCILING THE COMPETING DEMANDS OF THE CONSTITUTIONAL
IMMUNITY OF IMPORTS AND OF THE STATE'S POWER TO TAX PROPERTY WITHIN ITS
BORDERS.  THE DESIGN OF THE CONSTITUTIONAL IMMUNITY WAS TO PREVENT "THE
GREAT IMPORTING STATES FROM LAYING A TAX ON THE NON-IMPORTING STATES,"
TO WHICH THE IMPORTED PROPERTY IS OR MIGHT ULTIMATELY BE DESTINED,
WHICH WOULD NOT ONLY DISCRIMINATE AGAINST THEM BUT ALSO "WOULD
NECESSARILY PRODUCE COUNTERVAILING MEASURES ON THE PART OF THOSE STATES
WHOSE SITUATION WAS LESS FAVOURABLE TO IMPORTATION."  BROWN V.
MARYLAND, SUPRA, AT 440.  SEE MADISON, DEBATES IN THE FEDERAL
CONVENTION OF 1787, AUGUST 28, 1787 (HUNT & SCOTT ED.).  AND SEE, E.G.,
COOK V. PENNSYLVANIA, 97 U.S. 566, 574; RICHFIELD OIL CORP. V. STATE
BOARD, 329 U.S. 69, 76-77.  THE CONSTITUTIONAL DESIGN WAS THEN TO
IMMUNIZE IMPORTS FROM TAXATION BY THE IMPORTING STATES, AND ALL OTHERS
THROUGH OR INTO WHICH THEY MAY PASS, SO LONG AS THEY RETAIN THEIR
DISTINCTIVE CHARACTER AS IMPORTS.  HENCE, THAT DESIGN IS NOT IMPINGED
BY THE TAXATION OF MATERIALS THAT WERE IMPORTED FOR USE IN
MANUFACTURING AFTER ALL PHASES OF THE IMPORTATION DEFINITELY HAVE ENDED
AND THE MATERIALS HAVE BEEN "PUT TO THE USE FOR WHICH THEY WERE
IMPORTED" (HOOVEN & ALLISON CO. V. EVATT, SUPRA, AT 657), FOR IN SUCH A
CASE THEY HAVE LOST THEIR DISTINCTIVE CHARACTER AS IMPORTS AND ARE
SUBJECT TO TAXATION.  AND INASMUCH AS "THE RECONCILIATION OF THE
COMPETING DEMANDS OF THE CONSTITUTIONAL IMMUNITY AND OF THE STATE'S
POWER TO TAX, IS AN EXTREMELY PRACTICAL MATTER" (HOOVEN & ALLISON CO.
V. EVATT, SUPRA, AT 668), WE MUST APPROACH THE QUESTION WHETHER THESE
MATERIALS HAD BEEN "PUT TO THE USE FOR WHICH THEY WERE IMPORTED" (ID.,
AT 657) WITH FULL AWARENESS OF REALITIES AND TREAT WITH THEM IN A
PRACTICAL WAY. 

THE STIPULATION IN THE YOUNGSTOWN CASE SHOWS THAT THE IMPORTED ORES
WERE ESSENTIAL TO THE OPERATION OF YOUNGSTOWN'S OHIO PLANT; THAT
YOUNGSTOWN HAD IMPORTED THEM "FOR USE IN MANUFACTURING" AND "TO MEET
ITS ESTIMATED MANUFACTURING REQUIREMENTS" AT THAT PLANT; THAT THE ORES
HAD ARRIVED AT THEIR DESTINATION, HAD BEEN PLACED IN "PILES" IN THE
"ORE YARDS" OF THAT PLANT, AND THEIR IMPORTATION JOURNEY DEFINITELY HAD
ENDED; THAT THE ORES WERE IRREVOCABLY COMMITTED TO "USE IN
MANUFACTURING" AT THAT PLANT AND POINT OF FINAL DESTINATION; AND THAT
THE DAILY ORE NEEDS OF THE PLANT WERE CONVEYED FROM THE "PILES" IN THE
"ORE YARDS" TO "STOCK BINS" OR "STOCK HOUSES," HOLDING ONE OR TWO DAYS'
SUPPLY, FROM WHICH THEY WERE FED INTO THE FURNACES.  DOES NOT THE
STIPULATION THUS SHOW THAT THE ORES WERE NOT ONLY NEEDED, IMPORTED, AND
IRREVOCABLY COMMITTED TO SUPPLY, BUT WERE ACTUALLY BEING USED TO
SUPPLY, THE DAILY REQUIREMENTS OF THE PLANT?  IT SEEMS TO US THAT THESE
STIPULATED FACTS INESCAPABLY ESTABLISH THAT YOUNGSTOWN HAD "SO ACTED
UPON THE IMPORTED ORES" (BROWN V. MARYLAND, SUPRA, AT 441), BY USING
THEM "FOR THE PURPOSE FOR WHICH THEY WERE IMPORTED," THAT THEY MUST BE
HELD "TO HAVE THEN ENTERED THE MANUFACTURING PROCESS" (HOOVEN & ALLISON
CO. V. EVATT, SUPRA, AT 665, 667) AND TO HAVE LOST THEIR DISTINCTIVE
CHARACTER AS "IMPORTS" AND ALL TAX IMMUNITY AS SUCH. 

YOUNGSTOWN DOES NOT DENY THAT SO MUCH OF THE ORES AS HAVE BEEN
CONVEYED FROM THE "PILES" IN THE "ORE YARDS" TO THE "STOCK BINS" OR
"STOCK HOUSES" HAVE LOST THEIR DISTINCTIVE CHARACTER AS IMPORTS.  IS
THERE ANY REAL BASIS OF DISTINCTION?  THE ONLY POSSIBLE DIFFERENCES ARE
IN THE SIZES OF THE PILES AND THEIR DISTANCES FROM THE FURNACES. 
SURELY THE SIZE OF THE PILE IS NOT MATERIAL.  JUST AS SURELY THE SHORT
DISTANCE BETWEEN THE SMALLER PILES IN THE "STOCK BINS" OR "STOCK
HOUSES" AND THE LARGER PILES IN THE ORE YARDS IS NOT A REAL
DISTINCTION.  IF THE LARGER PILES STOOD ON HIGHER GROUND ADJOINING THE
"STOCK BINS" AND "STOCK HOUSES" SO THAT THE ORES MIGHT FEED BY GRAVITY
FROM THE FORMER TO THE LATTER THERE WOULD BE NO PRACTICAL DIFFERENCE
FROM THE ACTUAL FACTS INVOLVED, BUT IT COULD NOT BE ARGUED THAT THE
ORES IN THE ONE ARE ANY LESS CERTAINLY BEING USED IN THE PROCESSES OF
MANUFACTURE THAN THE ORES IN THE OTHER.  IT SEEMS ENTIRELY PLAIN THAT
THE ORES IN THE SMALLER PILES IN THE "STOCK BINS" AND "STOCK HOUSES"
ARE NO MORE DEFINITELY AND IRREVOCABLY COMMITTED TO USE, OR BEING USED,
AT THE PLANT THAN ARE THE ORES IN THE LARGER PILES IN THE ORE YARDS
FROM WHICH THE SMALLER ONES ARE CONSTANTLY KEPT SUPPLIED. 
"RECONCILIATION OF THE COMPETING DEMANDS OF THE CONSTITUTIONAL IMMUNITY
AND OF THE STATE'S POWER TO TAX BEING AN EXTREMELY PRACTICAL MATTER"
(HOOVEN ALLISON CO. V. EVATT, SUPRA, AT 668), TAXABILITY CANNOT DEPEND
UPON WHETHER THE SIZE OF THE PILE OF STORED MATERIALS OR ITS DISTANCE
FROM THE PLACE OF ACTUAL FABRICATION OR CONSUMPTION IS A LITTLE MORE OR
A LITTLE LESS. 

IN THE UNITED STATES PLYWOOD CORPORATION CASE, TWO TYPES OF IMPORTED
MATERIALS ARE INVOLVED - UNFINISHED "GREEN" LUMBER RECEIVED "IN BULK"
AND VENEERS RECEIVED IN "BUNDLES."  THE ASSESSOR OF THE CITY OF ALGOMA,
BELIEVING THAT ONE-HALF OF THE LUMBER AND VENEERS ON HAND ON THE TAXING
DATE WAS NECESSARILY REQUIRED TO BE KEPT ON HAND TO MEET THE CURRENT
OPERATING NEEDS OF PETITIONER'S MANUFACTURING PLANT, ASSESSED AN AD
VALOREM TAX UPON THE VALUE OF THAT ONE-HALF OF THE LUMBER AND VENEERS. 
IN THE ENSUING LITIGATION, THE WISCONSIN COURTS FOUND THAT THE IMPORTED
MATERIALS HAD BEEN IMPORTED BY PETITIONER "FOR USE IN MANUFACTURING" AT
ITS ALGOMA PLANT, HAD ARRIVED AT THAT PLACE AND THAT THEIR IMPORTATION
JOURNEYS DEFINITELY HAD ENDED; THAT THE LUMBER AND VENEERS THAT WERE
TAXED (ONE-HALF OF THE AMOUNTS ON HAND ON THE TAXING DATE) HAD BEEN
IRREVOCABLY COMMITTED TO "USE IN MANUFACTURING" AT THAT PLANT, WERE
"NECESSARILY REQUIRED TO BE KEPT ON HAND TO MEET ITS CURRENT
OPERATIONAL NEEDS," AND WERE ACTUALLY BEING "USED" TO SUPPLY THOSE
NEEDS.  THESE FINDINGS ARE AMPLY SUPPORTED BY THE EVIDENCE AND ARE NOT
CONTESTED HERE.  WE THINK THEY CLEARLY SHOW THAT THE LUMBER AND VENEERS
THAT WERE TAXED WERE NOT ONLY NEEDED, IMPORTED, AND IRREVOCABLY
COMMITTED TO SUPPLY, BUT WERE ACTUALLY BEING USED TO SUPPLY, THE DAY-TO
DAY MANUFACTURING REQUIREMENTS OF THE PLANT.  THEY THUS ESTABLISH THAT
PETITIONER HAD "SO ACTED UPON THE IMPORTED MATERIALS" (BROWN V.
MARYLAND, SUPRA, AT 441) THAT WERE TAXED BY USING THEM "FOR THE PURPOSE
FOR WHICH THEY WERE IMPORTED," THAT - LIKE THE ORES IN THE YOUNGSTOWN
CASE - THEY MUST BE HELD "TO HAVE THEN ENTERED THE MANUFACTURING
PROCESS" (HOOVEN & ALLISON CO. V. EVATT, SUPRA, AT 665, 667) AND TO
HAVE LOST THEIR DISTINCTIVE CHARACTER AS "IMPORTS" AND ALL TAX IMMUNITY
AS SUCH. 

THE FACT THAT THE VENEERS WERE RECEIVED IN "BUNDLES" WHICH WERE NOT
OPENED UNTIL THE VENEERS WERE PUT INTO THE DAILY MANUFACTURING
OPERATIONS OF THE PLANT IS NOT CONTROLLING UNDER THE FACTS AND FINDINGS
HERE.  WHATEVER MAY BE THE SIGNIFICANCE OF RETAINING IN THE "ORIGINAL
PACKAGE" GOODS THAT HAVE BEEN SO IMPORTED FOR SALE (BROWN V. MARYLAND,
SUPRA; WARING V. THE MAYOR, 8 WALL.  110, 122-123; LOW V. AUSTIN, 13
WALL.  29, 32-33; COOK V. PENNSYLVANIA, 97 U.S. 566, 573; MAY V. NEW
ORLEANS, 178 U.S. 496, 501, 507-508), GOODS THAT HAVE BEEN SO IMPORTED
FOR USE IN MANUFACTURING ARE NOT EXEMPT FROM TAXATION, THOUGH NOT
REMOVED FROM THE "ORIGINAL PACKAGE," IF, AS FOUND HERE, THEY HAVE BEEN
"PUT TO THE USE FOR WHICH THEY WERE IMPORTED."  HOOVEN & ALLISON CO. V.
EVATT, SUPRA, AT 657.  BREAKING THE ORIGINAL PACKAGE IS ONLY ONE OF THE
WAYS BY WHICH PACKAGED GOODS THAT HAVE BEEN IMPORTED FOR USE IN
MANUFACTURING MAY LOSE THEIR DISTINCTIVE CHARACTER AS IMPORTS.  ANOTHER
WAY IS BY PUTTING THEM "TO THE USE FOR WHICH THEY WERE IMPORTED."  ID.
THAT THE PACKAGE HAS NOT BEEN BROKEN IS, THEREFORE, ONLY ONE OF THE
SEVERAL FACTORS TO BE CONSIDERED IN FACTUALLY DETERMINING WHETHER THE
GOODS ARE BEING "USED FOR THE PURPOSE FOR WHICH THEY WERE IMPORTED." 
HOOVEN & ALLISON CO. V. EVATT, SUPRA, AT 665.  HERE THE FACT THAT THE
BUNDLES ARE NOT OPENED UNTIL THE VENEERS ARE PUT INTO THE DAY-TO-DAY
MANUFACTURING OPERATIONS OF THE PLANT WAS FULLY CONSIDERED BY THE
WISCONSIN COURTS BEFORE THEY MADE THE FINDING THAT THE VENEERS THAT
WERE TAXED WERE "NECESSARILY REQUIRED TO BE KEPT ON HAND TO MEET
PETITIONER'S CURRENT OPERATIONAL NEEDS," AND WERE ACTUALLY BEING "USED"
TO SUPPLY THOSE NEEDS. 

BECAUSE OF THE VIEWS EXPRESSED, IT IS UNNECESSARY TO REACH OR DISCUSS
THE FURTHER FINDING AND CONCLUSION OF THE WISCONSIN COURTS THAT WHEN
THE "GREEN" LUMBER WAS STACKED BY PETITIONER IN THE OPEN IN A
PARTICULAR WAY FOR THE "DOMINANT PURPOSE" OF AIR-DRYING IT, THE LUMBER
"ENTERED THE PROCESS OF MANUFACTURE," AND, FOR THAT REASON ALSO, LOST
ITS CHARACTER AS AN IMPORT. 

THE MATERIALS HERE IN QUESTION WERE IMPORTED TO SUPPLY, AND WERE
ESSENTIAL TO SUPPLY, THE MANUFACTURER'S CURRENT OPERATING NEEDS.  WHEN,
AFTER ALL PHASES OF THEIR IMPORTATION HAD ENDED, THEY WERE PUT TO THAT
USE AND INDISCRIMINATE PORTIONS OF THE WHOLE WERE ACTUALLY BEING USED
TO SUPPLY DAILY OPERATING NEEDS, THEY STOOD IN THE SAME RELATION TO THE
STATE AS LIKE PILES OF DOMESTIC MATERIALS AT THE SAME PLACE THAT WERE
KEPT FOR USE AND USED IN THE SAME WAY.  THE ONE WAS THEN AS FULLY
SUBJECT TO TAXATION AS THE OTHER.  IN THOSE CIRCUMSTANCES, THE TAX WAS
NOT ON "IMPORTS," NOR WAS IT A TAX ON THE MATERIALS BECAUSE THEY HAD
BEEN IMPORTED, BUT BECAUSE AT THE TIME OF THE ASSESSMENT THEY WERE
BEING USED, IN EVERY PRACTICAL SENSE, FOR THE PURPOSES FOR WHICH THEY
HAD BEEN IMPORTED.  THEY WERE THEREFORE SUBJECT TO TAXATION JUST LIKE
DOMESTIC PROPERTY THAT WAS KEPT AT THE SAME PLACE IN THE SAME WAY FOR
THE SAME USE.  WE CANNOT IMPUTE TO THE FRAMERS OF THE CONSTITUTION A
PURPOSE TO MAKE SUCH A DISCRIMINATION IN FAVOR OF MATERIALS IMPORTED
FROM OTHER COUNTRIES AS WOULD RESULT IF WE APPROVED THE VIEWS PRESSED
UPON US BY THE MANUFACTURERS.  COMPARE MAY V. NEW ORLEANS, 178 U.S., AT
509. 

YOUNGSTOWN ALSO CHALLENGED A PORTION OF THE TAX ON THE GROUND THAT
ITS DOMESTIC ORES STORED ON PUBLIC DOCKS ON THE SHORE OF LAKE ERIE IN
OHIO WERE "MERCHANDISE  ...  HELD IN STORAGE WAREHOUSE FOR STORAGE
ONLY" WITHIN THE MEANING OF SEC. 5701.08(A), (FN9) AND THAT, BECAUSE
THE SECTION EXEMPTED NONRESIDENTS BUT TAXED RESIDENTS ON STOCKS OF
MERCHANDISE SO HELD, IT DENIED TO YOUNGSTOWN, A RESIDENT OF OHIO, THE
EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT
OF THE CONSTITUTION.  THE SUPREME COURT OF OHIO ANSWERED THAT
CONTENTION BY SAYING:  "FOR THE REASONS STATED IN ALLIED STORES OF
OHIO, INC., V. BOWERS, TAX COMMR., ANTE (166 OHIO ST.), 116, THE
TAXPAYER'S CONTENTIONS IN THAT RESPECT MUST BE REJECTED  ...  ." 
YOUNGSTOWN SHEET & TUBE CO. V. BOWERS, 166 OHIO ST. 122, 124, 140
N.E.2D 313, 316.  WE HAVE TODAY AFFIRMED THE JUDGMENT OF THE SUPREME
COURT OF OHIO IN ALLIED STORES OF OHIO, INC., V. BOWERS, TAX COMM'R,
ANTE, P. 522, AND FOR THE REASONS STATED IN OUR OPINION IN THAT CASE WE
HOLD THAT SEC. 5701.08(A) AND THE QUESTIONED TAX LAID THEREUNDER DID
NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

IT FOLLOWS THAT THE JUDGMENT IN EACH CASE MUST BE AFFIRMED. 

FN1  ARTICLE I, SEC. 10, CL. 2 OF THE UNITED STATES CONSTITUTION, IN
PERTINENT PART, PROVIDES: "NO STATE SHALL, WITHOUT THE CONSENT OF THE
CONGRESS, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, EXCEPT WHAT
MAY BE ABSOLUTELY NECESSARY FOR EXECUTING IT'S INSPECTION LAWS  ...
." 

FN2  EXHIBITS IN THE RECORD, THOUGH NOT GIVING MEASUREMENTS, INDICATE
THAT THE NEAREST ORE YARD IS LOCATED WITHIN TWO OR THREE HUNDRED FEET,
AND THE MOST DISTANT ONE IS LOCATED WITHIN TWO OR THREE HUNDRED YARDS,
OF THE FURNACES. 

FN3  TITLE 57, PAGE'S OHIO REV. CODE ANN., 1953, SEC. 5709.01. 

FN4  TITLE 57, PAGE'S OHIO REV. CODE ANN., 1953, SEC. 5701.08(A). 

FN5  THE OHIO TAXING DATE IS JANUARY 1, TITLE 57, PAGE'S OHIO REV.
CODE ANN., 1953, SEC. 5711.03.  BUT PERSONAL PROPERTY HELD BY A
MANUFACTURER FOR USE IN MANUFACTURING IS VALUED FOR TAX PURPOSES "BY
TAKING THE VALUE OF ALL SUCH PROPERTY  ...  OWNED BY SUCH MANUFACTURER
ON THE LAST BUSINESS DAY OF EACH MONTH THAT THE MANUFACTURER WAS
ENGAGED IN BUSINESS DURING THE YEAR, ADDING THE MONTHLY VALUES
TOGETHER, AND DIVIDING THE RESULT BY THE NUMBER OF MONTHS THE
MANUFACTURER WAS ENGAGED IN SUCH BUSINESS DURING THE YEAR."  TITLE 57,
PAGE'S OHIO REV.  CODE ANN., 1953, SEC. 5711.16.    FN6  CHIEF JUSTICE
TANEY, WHILE STILL AT THE BAR, HAD ARGUED THAT CASE FOR THE STATE OF
MARYLAND.  AFTER COMING TO THIS COURT, HE HAD OCCASION TO SAY THAT THE
THEORY OF THAT HOLDING WAS THAT WHILE THE IMPORTED ARTICLES "ARE IN THE
HANDS OF THE IMPORTER FOR SALE  ...  THEY MAY BE REGARDED AS MERELY IN
TRANSITU, AND ON THEIR WAY TO THE DISTANT CITIES, VILLAGES AND COUNTRY
FOR WHICH THEY ARE DESTINED, AND WHERE THEY ARE EXPECTED TO BE USED AND
CONSUMED, AND FOR THE SUPPLY OF WHICH THEY WERE IN TRUTH IMPORTED." 
LICENSE CASES, 5 HOW.  504, 575. 

FN7  THE COURT SAID THAT WHEN THE IMPORTED GOODS ARE SOLD "THE TAX
INTERCEPTS THE IMPORT, AS AN IMPORT, IN ITS WAY TO BECOME INCORPORATED
WITH THE GENERAL MASS OF PROPERTY, AND DENIES IT THE PRIVILEGE OF
BECOMING SO INCORPORATED UNTIL IT SHALL HAVE CONTRIBUTED TO THE REVENUE
OF THE STATE."  12 WHEAT., AT 443.  THAT IMPORTED GOODS LOSE THEIR
CHARACTER AS "IMPORTS" UPON BEING SOLD IS WELL-SETTLED.  LICENSE CASES,
5 HOW.  504, 575; WARING V. THE MAYOR, 8 WALL.  110; LOW V. AUSTIN, 13
WALL.  29; MAY V. NEW ORLEANS, 178 U.S. 496. 

FN8  COUNSEL FOR MARYLAND HAD ARGUED THAT TO PERMIT STATE TAX
IMMUNITY IN THAT CASE WOULD RESULT IN GRANTING IMMUNITY TO "AN IMPORTER
WHO MAY BRING IN GOODS, AS PLATE, FOR HIS OWN USE, AND THUS RETAIN MUCH
VALUABLE PROPERTY EXEMPT FROM TAXATION."  IN REPLY TO THAT ARGUMENT,
MARSHALL REJECTED THE ASSUMPTION THAT THE PRINCIPLES THEN ANNOUNCED
WOULD GRANT STATE TAX EXEMPTIONS TO IMPORTS THAT WERE BEING USED OR
HELD FOR USE BY THE IMPORTER.  IN SUCH A CASE, AS IN A CASE WHERE THE
IMPORTER "BREAKS UP HIS PACKAGES, AND TRAVELS WITH THEM AS AN ITINERANT
PEDLAR," HE SAID "THE TAX FINDS THE ARTICLE ALREADY INCORPORATED WITH
THE MASS OF PROPERTY BY THE ACT OF THE IMPORTER.  HE HAS USED THE
PRIVILEGE (I.E., OF IMPORTATION AND SALE) HE HAD PURCHASED, AND HAS
HIMSELF MIXED THEM UP WITH THE COMMON MASS, AND THE LAW MAY TREAT THEM
AS IT FINDS THEM.  THE SAME OBSERVATIONS APPLY TO PLATE, OR OTHER
FURNITURE USED BY THE IMPORTER."  12 WHEAT., AT 443. 

FN9  AS EARLIER STATED (NOTE 3), SEC. 5709.01 PROVIDES IN PERTINENT
PART, "ALL PERSONAL PROPERTY LOCATED AND USED IN BUSINESS IN THIS STATE
SHALL BE SUBJECT TO TAXATION  ...  ."  (TITLE 57, PAGE'S OHIO REV. CODE
ANN., 1953, SEC. 5709.01), AND SEC. 5701.08(A), AT THE TIME IN
QUESTION, PROVIDED, IN PERTINENT PART, THAT: 

"AS USED IN TITLE LVII OF THE REVISED CODE: 

"(A)  PERSONAL PROPERTY IS 'USED' WITHIN THE MEANING OF 'USED IN
BUSINESS'  ...  WHEN STORED OR KEPT ON HAND AS MATERIAL, PARTS,
PRODUCTS, OR MERCHANDISE; BUT MERCHANDISE OR AGRICULTURAL PRODUCTS
BELONGING TO A NONRESIDENT OF THIS STATE IS NOT USED IN BUSINESS IN
THIS STATE IF HELD IN A STORAGE WAREHOUSE FOR STORAGE ONLY  ...  ." 
TITLE 57, PAGE'S OHIO REV. CODE ANN., 1953, SEC. 5701.08(A). 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING ON
THE MAIN ISSUE. 

AS ONE FOLLOWS THE TORTUOUS AND ANGUISHED ENDEAVORS TO ESTABLISH A
FREE TRADE AREA WITHIN WESTERN EUROPE, UNHAMPERED BY INTERIOR BARRIERS,
AGAINST THE OPPOSITION OF INERT AND NARROW CONCEPTIONS OF SELF-INTEREST
BY THE COMPONENT NATIONS, ADMIRATION FOR THE FAR-SIGHTED STATECRAFT OF
THE FRAMERS OF THE CONSTITUTION IS INTENSIFIED.  GUIDED BY THE
EXPERIENCE OF THE EVILS GENERATED BY THE PAROCHIALISM OF THE NEW
STATES, THE WISE MEN AT THE PHILADELPHIA CONVENTION TOOK MEASURES TO
MAKE OF THE EXPANSIVE UNITED STATES A FREE TRADE AREA AND TO WITHDRAW
FROM THE STATES THE SELFISH EXERCISE OF POWER OVER FOREIGN TRADE, BOTH
IMPORT AND EXPORT.  THEY ACCOMPLISHED THIS BY TWO PROVISIONS IN THE
CONSTITUTION:  THE COMMERCE CLAUSE AND THE IMPORT-EXPORT CLAUSE. 

THE FORMER REACHED ITS AIM, AS A MATTER OF SETTLED JUDICIAL
CONSTRUCTION, BY PLACING THE REGULATION OF COMMERCE AMONG THE STATES IN
THE HANDS OF CONGRESS, EXCEPT INSOFAR AS PREDOMINANTLY LOCAL INTERESTS
GIVE THE STATES CONCURRENT POWER UNTIL DISPLACED BY CONGRESSIONAL
LEGISLATION.  THIS LEEWAY TO THE STATES WAS ESTABLISHED BY THE DECISION
IN COOLEY V. BOARD OF WARDENS, 12 HOW.  299, FORESHADOWED BY MARSHALL'S
DECISION IN WILLSON V. BLACK BIRD CREEK MARSH CO., 2 PET. 245.  THIS
PERMISSIVE AREA FOR STATE ACTION HAS GIVEN RISE, AS WE KNOW TOO WELL,
TO MULTITUDINOUS LITIGATION. 

BUT IN DEALING WITH FOREIGN COMMERCE THE CONSTITUTION LEFT NO SUCH
LEEWAY.  IT RIGOROUSLY CONFINED THE STATES TO WHAT MIGHT BE "ABSOLUTELY
NECESSARY," THE ONLY CONSTITUTIONAL PERMISSION IN TERMS SO DRASTICALLY
LIMITED, AND BEYOND THIS PERMISSION OF WHAT IS "ABSOLUTELY NECESSARY"
STATE ACTION WAS BARRED EXCEPT BY CONSENT OF CONGRESS AS EXPRESSIVE OF
THE NATIONAL INTEREST.  THUS, HARDLY ANY ROOM WAS LEFT BY THE
CONSTITUTION FOR JUDICIAL CONSTRUCTION OF THE COMMAND, "NO STATE SHALL,
WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY IMPOSTS OR DUTIES ON
IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR
EXECUTING ITS INSPECTION LAWS  ...  ."  THIS STRICT LIMITATION ON THE
STATES WAS STILL FURTHER QUALIFIED BY THE REQUIREMENT THAT THE "NET
PRODUCE OF ALL DUTIES AND IMPOSTS, LAID BY ANY STATE ON IMPORTS OR
EXPORTS, SHALL BE FOR THE USE OF THE TREASURY OF THE UNITED STATES; AND
ALL SUCH LAWS SHALL BE SUBJECT TO THE REVISION AND CONTROUL OF THE
CONGRESS." 

FOR ONE HUNDRED AND THIRTY-TWO YEARS, IN A COURSE OF DECISION
FOLLOWING CHIEF JUSTICE MARSHALL'S SEMINAL DISCUSSION IN BROWN V.
MARYLAND, 12 WHEAT.  419, THIS COURT HAS HELD, WITHOUT A SINGLE
DEVIATION, THAT A STATE MAY NOT TAX IMPORTS FROM FOREIGN COUNTRIES
WHILE RETAINED BY THE IMPORTER IN THEIR ORIGINAL "PACKAGE" (FN1) OR
FORM PRIOR TO THE USE OF THE GOODS OR THEIR SALE.  TODAY THE COURT, I
AM BOUND MOST RESPECTFULLY TO SAY, DISREGARDS THIS HISTORIC COURSE OF
CONSTITUTIONAL ADJUDICATION BY ALLOWING THE STATES OF WISCONSIN AND
OHIO, AND, THEREFORE, ALL THE STATES, TO TAX FOREIGN IMPORTS DESPITE
THE PROHIBITION OF ART. I, SEC. 10, CL. 2, THAT "NO STATE SHALL,
WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY IMPOSTS OR DUTIES ON
IMPORTS OR EXPORTS,  ...  " AS THAT CLAUSE HAS BEEN AUTHORITATIVELY
INTERPRETED BY THIS COURT.  AND IT DOES SO, MOREOVER, WITHOUT
OVERRULING THE DECISIONS WHICH THE BASIS AND LOGIC OF THIS NEW READING
OF THE CONSTITUTION CAN NO LONGER SUSTAIN.  BUT THEY REMAIN DECISIONS
OF THIS COURT.  THUS, WE ARE LEFT WITH A CONFUSING SERIES OF
CONFLICTING CASES AMIDST WHICH THE STATES MUST BLIDNLY MOVE IN
DETERMINING THE EXTENT OF THEIR CONSTITUTIONAL POWER TO TAX.  THIS
CONFUSION IS SUBSTITUTED FOR A PRINCIPLE SO PLAIN OF APPLICATION THAT
THE CONTROVERSIES IN THIS COURT OVER THE MEANING OF THIS FAR-REACHING
CONSTITUTIONAL PROVISION HAVE NUMBERED LESS THAN A DOZEN IN OUR ENTIRE
HISTORY.  OF COURSE, I DO NOT BELIEVE THAT WE SHOULD OVERRULE THIS
CONSISTENT COURSE OF DECISIONS.  BUT TO DO SO WOULD AT LEAST HAVE THE
MERIT OF EXPLICIT ANNOUNCEMENT OF A NEW LEGAL POLICY, WITH ITS
CONCOMITANT REPERCUSSIONS ON THE CONDUCT OF OUR NATIONAL ECONOMIC
LIFE. 

SINCE THE LEGAL ANALYSIS OF THE CHALLENGED TAXES MUST DERIVE FROM DUE
REGARD FOR THE PRECISE CIRCUMSTANCES ON WHICH THEY ARE BASED, IT
BECOMES NECESSARY TO SET FORTH THE FACTS OF THE TWO CASES NOW BEFORE
US. 

IN NO. 44, UNITED STATES PLYWOOD CORP. V. CITY OF ALGOMA, PETITIONER,
A NEW YORK CORPORATION LICENSED TO DO BUSINESS IN WISCONSIN, ATTACKS
THE VALIDITY OF A TAX LEVIED BY THE CITY OF ALGOMA ON ITS STORAGE STOCK
OF IMPORTED LUMBER AND VENEERS.  THE VENEERS ARE IMPORTED FROM CANADA,
FRANCE AND THE BELGIAN CONGO.  FROM CANADA COMES BIRCH VENEER, FROM
FRANCE, FRENCH OAK VENEER, AND FROM AFRICA, SPECIES OF VENEER KNOWN AS
KORINA AND FUMA.  THE VENEERS ARE SHIPPED TO PETITIONER IN WOODEN
CRATES OR IN BUNDLES SECURED BY METAL STRAPS.  AFTER ARRIVAL AT
PETITIONER'S PLANT THE VENEERS ARE STORED IN A WAREHOUSE IN THEIR
ORIGINAL PACKAGES PRIOR TO THEIR USE IN THE MANUFACTURE OF VENEERED
PRODUCTS.  WHEN USED THE PACKAGES ARE BROKEN AND TAKE THEIR COURSE
THROUGH THE FACTORY.  THE LUMBER, BIRCH AND CEDAR, IS IMPORTED FROM
ONTARIO, CANADA.  WHEN RECEIVED IT IS PILED IN THE YARD PREPARATORY TO
USE IN MANUFACTURE. 

THE CITY OF ALGOMA ASSESSED FOR TAXATION ONE-HALF OF THE TOTAL VALUE
OF THE IMPORTED LUMBER PILED IN THE YARD AND THE VENEERS STORED IN
THEIR ORIGINAL PACKAGES IN THE WAREHOUSE, ON TAX DAY - MAY 1, 1955. 
THE CITY SAID THAT AT LEAST THAT AMOUNT OF THE IMPORTED MATERIALS WAS
NECESSARY TO MEET THE "CURRENT OPERATIONAL REQUIREMENTS" OF PETITIONER
AND THUS WAS SUBJECT TO STATE TAXATION. 

THE STATE SUPREME COURT UPHELD THE TAX ON THE BASIS OF THE FINDING
BELOW THAT THE GOODS TAXED WERE NECESSARY FOR THE "CURRENT OPERATIONAL
NEEDS" OF THE PLANT.  THE TAX ON THE LUMBER WAS SUSTAINED ON AN
ALTERNATIVE GROUND.  SINCE THE DOMINANT PURPOSE OF PILING THE LUMBER IN
THE STORAGE YARD WAS TO PREPARE IT FOR MANUFACTURE BY AIR DRYING, THE
LUMBER HAD ENTERED THE PROCESS OF MANUFACTURE AND LOST ITS IMMUNITY
FROM STATE TAXATION.  MOST OF THE CANADIAN LUMBER WAS RECEIVED GREEN
AND, AS A MATTER OF GOOD BUSINESS PRACTICE, IT IS CUSTOMARY TO AIR DRY
SUCH LUMBER BEFORE RUNNING IT THROUGH DRY KILNS TO FURTHER REMOVE
MOISTURE. 

IN NO. 9, YOUNGSTOWN SHEET & TUBE CO. V. BOWERS, APPELLANT CHALLENGES
THE APPPLICATION OF A PERSONAL PROPERTY TAX TO ITS STOCKS OF IMPORTED
IRON ORE STORED AT ITS PLANT IN YOUNGSTOWN, OHIO.  THE FACTS WERE
STIPULATED.  APPELLANT PURCHASES AND IMPORTS FIVE GRADES OF IRON ORE:
BRAZILIAN ORE, CUBAN ORE, MEXICAN ORE, LIBERIAN ORE, AND SEINE RIVER
ORE.  THESE ORES ARE LOADED IN BULK AT FOREIGN PORTS INTO CHARTERED
VESSELS, EACH OF WHICH CARRIES BUT A SINGLE CARGO OF A SINGLE GRADE OF
ORE.  WHEN THE VESSELS REACH THE PORT OF ENTRY, THE ORE IS DISCHARGED
INTO RAILROAD CARS AND TRANSPORTED IN BULK TO APPELLANT'S PLANT IN
YOUNGSTOWN.  UPON ARRIVAL THE ORE IS UNLOADED INTO A STORAGE YARD
ADJACENT TO THE MANUFACTURING PLANT.  A SEPARATE STORAGE PILE IN A
SEPARATE AREA OF THE STORAGE YARD IS MAINTAINED FOR EACH GRADE OF
IMPORTED ORE, AND SUCH ORE IS NOT COMMINGLED WITH ANY OTHER PROPERTY. 
A SUPPLY OF ORE NECESSARY TO MEET ESTIMATED REQUIREMENTS FOR AT LEAST
THREE MONTHS IS MAINTAINED.  SINCE THE ORE IS LOCATED AT SOME DISTANCE
FROM STOCK BINS AND FURNACES, WHEN THE NEED ARISES FOR A PARTICULAR
GRADE OF ORE IT IS TAKEN FROM THE GRADE STOCK PILE AND TRANSPORTED TO
STOCK BINS OR STOCK HOUSES PREPARATORY TO USE IN THE FURNACES.  WHEN A
SHIPMENT OF BULK ORE OF A PARTICULAR GRADE IS RECEIVED IT IS PLACED IN
THE STOCK PILE DESIGNATED FOR THAT GRADE, I.E., ALL IMPORTS OF
BRAZILIAN ORE ARE PLACED IN THE BRAZILIAN PILE, ETC.  HENCE A STOCK
PILE OF A PARTICULAR GRADE MAY BE DIMINISHED BY A PARTICULAR DAY'S
NEED, AND AUGMENTED THE NEXT BY SUBSEQUENTLY IMPORTED ORE OF THE SAME
GRADE. 

APPELLANT CONCEDED THAT THE IMPORTED ORES HAD LOST THEIR IMMUNITY
FROM TAXATION ONCE THEY WERE REMOVED FROM STORAGE PILES AND PLACED IN
STOCK BINS.  THE SUPREME COURT OF OHIO DECIDED THAT ALL THE IMPORTED
ORE, INCLUDING THAT REMAINING IN THE STORAGE PILES, COULD BE TAXED BY
THE STATE, AND UPHELD THE CHALLENGED ASSESSMENT.  THE OHIO COURT
THOUGHT THAT THE MERE MINGLING OF IMPORTED ORE WITH OTHER IMPORTED ORE
OF THE SAME GRADE, COUPLED WITH THE FACT THAT PARTS OF EACH PILE WERE
TAKEN FOR USE IN MANUFACTURING, HAD TERMINATED THE CONSTITUTIONAL
IMMUNITY AND SUBJECTED THE ENTIRE STOCK OF IMPORTED ORE TO STATE
TAXATION. 

PRIMARY AMONG THE FORCES WHICH LED TO THE INCLUSION OF ART. I, SEC.
10, CL. 2, THE IMPORT-EXPORT CLAUSE, IN THE CONSTITUTION, WAS THE
DEEPLY FELT NECESSITY OF VESTING EXCLUSIVE POWER OVER FOREIGN ECONOMIC
RELATIONS AND FOREIGN COMMERCE IN THE NEW NATIONAL GOVERNMENT.  (FN2)
THE IMPORTANCE OF CONTROL OVER DUTIES, IMPOSTS, AND SUBSIDIES AS AN
INSTRUMENT OF FOREIGN TRADE AND AS A PROTECTION FOR THE ENCOURAGEMENT
AND GROWTH OF DOMESTIC MANUFACTURES WAS RECOGNIZED AS A MATTER OF
COURSE BY THE FRAMERS.  FOR THE EFFECTIVE EXERCISE OF THIS CONTROL IT
WAS NECESSARY THAT THE GOVERNMENT SPEAK WITH ONE VOICE WHEN REGULATING
COMMERCIAL INTERCOURSE WITH FOREIGN NATIONS.  ORDERLY AND EFFECTIVE
POLICY WOULD BE IMPOSSIBLE IF THIRTEEN STATES, EACH WITH THEIR
DISTINCTIVE INTERESTS, AND OFTEN CONFLICTING, ONE WITH ANOTHER, WERE
ALLOWED TO EXERCISE THEIR OWN INITIATIVE IN THE REGULATION OF FOREIGN
ECONOMIC AFFAIRS.  AND SO THE STATES WERE PROHIBITED FROM SUCH
REGULATION - THEY WERE FORBIDDEN, EXCEPT BY LEAVE OF CONGRESS, TO LAY
ANY DUTIES ON IMPORTS OR ON EXPORTS.  SECOND ONLY TO THIS GOAL IN
IMPORTANCE, WAS THE NEED TO SECURE TO THE NATIONAL GOVERNMENT AN
IMPORTANT SOURCE OF REVENUE.  (FN3)  THE FRAMERS ASSUMED THAT, FOR MANY
YEARS, DUTIES ON FOREIGN IMPORTS WOULD BE THE PRIME SOURCE OF NATIONAL
FUNDS; THE REVENUE ON WHOSE CONSTANT FLOW THE OPERATIONS OF GOVERNMENT
WOULD DEPEND.  IT THEREFORE WAS ESSENTIAL TO THE FISCAL WELL-BEING OF
THE NEW COUNTRY TO ENSURE EXCLUSIVE ACCESS TO THIS REVENUE TO THE
NATIONAL GOVERNMENT.  SUBORDINATE TO THESE GOALS IN IMPORTANCE WAS THE
DESIRE TO PREVENT THE SEABOARD STATES, POSSESSED OF IMPORTANT PORTS OF
ENTRY, FROM LEVYING TAXES ON GOODS FLOWING THROUGH THEIR PORTS TO
INLAND STATES.  (FN4)  IT WAS IMPORTANT NOT TO ALLOW THESE STATES TO
TAKE ADVANTAGE OF THEIR FAVORABLE GEOGRAPHICAL POSITION IN ORDER TO
EXACT A PRICE FOR THE USE OF THEIR PORTS FROM THE CONSUMERS DWELLING IN
LESS ADVANTAGEOUSLY SITUATED PARTS OF THE COUNTRY.  THIS FEAR OF THE
USE OF GEOGRAPHICAL POSITION TO EXACT A FORM OF TRIBUTE FOUND AN
ESPECIALLY FORCEFUL EXPRESSION IN THE ABSOLUTE PROHIBITION AGAINST
DUTIES ON EXPORTS BY EITHER NATION OR STATES. 

THE IMPORT CLAUSE WAS A RESULT OF THE DESIRE TO SAFEGUARD THESE
NATIONAL GOALS AND REALIZE THESE NECESSITIES.  THUS, THE CONSIDERATIONS
GOVERNING ITS INTERPRETATION MARKED OUT FOR IT A SPECIAL PATH IN THE
STREAM OF CONSTITUTIONAL ADJUDICATION - A COURSE WHICH DIVERGED IN MANY
RESPECTS FROM THE HISTORY OF THE COMMERCE CLAUSE:  THAT BROAD GRANT OF
POWER DESIGNED PRIMARILY TO ASSURE NATIONAL CONTROL OVER COMMERCIAL
TRADE AMONG THE STATES.  THE OFTEN DIFFICULT, AND CONTINUALLY DELICATE,
CONSIDERATIONS OF THE ECONOMIC IMPACT OF A CHALLENGED TAX, OF THE
DIRECTNESS OF ITS BURDEN UPON COMMERCE, OF ITS POTENTIAL OR ACTUAL
DISCRIMINATION AGAINST INTERSTATE TRADE, WHICH HAVE BEEN OF CONTROLLING
IMPORTANCE TO THE PROPER EVALUATION OF STATE TAXES CHALLENGED UNDER THE
COMMERCE CLAUSE, ARE NOT THE PERTINENT FACTORS IN ASSESSING THE
CONSTITUTIONAL VALIDITY OF A TAX CHARGED WITH BEING IN VIOLATION OF THE
BAR OF ART. I, SEC. 10, CL. 2.  IN THE TAXATION OF IMPORTS, THE GRANT
OF POWER TO THE NATIONAL GOVERNMENT IS EXCLUSIVE; THE PROHIBITION OF
THE STATES, ABSOLUTE.  (FN5)  THUS THE OBJECTS OF RELEVANT INQUIRY HAVE
BEEN CAREFULLY CIRCUMSCRIBED.  ONCE IT IS CLEAR, AS A MATTER OF
ECONOMIC FACT, THAT A STATE HAS LEVIED A TAX UPON FOREIGN GOODS, THIS
COURT HAS ALWAYS FOUND IT NECESSARY TO ANSWER ONLY ONE FURTHER
QUESTION.  THE QUESTION WAS PUT BY CHIEF JUSTICE MARSHALL IN 1827 IN
BROWN V. MARYLAND:  HAVE THE GOODS RETAINED THEIR STATUS AS IMPORTS IN
THE HANDS OF THE IMPORTER?  IF SO, THE TAX IS INVALID.  IF NOT, IF THE
GOODS HAVE BECOME PART OF THE GENERAL PROPERTY OF THE STATE, THE TAX IS
NOT BARRED BY THE IMPORT CLAUSE.  THE ANSWER TO THIS QUESTION INVOLVES
ESSENTIALLY A DETERMINATION OF THE PHYSICAL STATUS OF THE FOREIGN
GOODS.  BUT, HOWEVER VARIANT THE FACTS IN DIFFERENT SITUATIONS, THE
DETERMINATIVE PRINCIPLES HAVE REMAINED CONSTANT.  AND IN THE CASES NOW
BEFORE US, JUST AS IN EVERY CASE THIS COURT HAS DECIDED UNDER THE
IMPORT CLAUSE, THE RULES OF DECISION MUST FLOW FROM THE CAREFUL AND
AUTHORITATIVE EXPOSITION OF CHIEF JUSTICE MARSHALL IN THE GOVERNING
CASE OF BROWN V. MARYLAND.  THE CHIEF JUSTICE RECOGNIZED THAT AT SOME
POINT IN THE IMPORTING PROCESS FOREIGN GOODS LOSE THEIR IMMUNITY AND
BECOME SUBJECT TO THE TAXING POWER OF THE STATE.  YET THE GOODS MUST
REMAIN IMMUNE FROM STATE LEVIES LONG ENOUGH TO GIVE THE CONSTITUTIONAL
PROHIBITION ITS INTENDED EFFECT.  EVERY CASE DECIDED UNDER THE IMPORT
CLAUSE, FROM THAT DAY TO THIS, HAS BEEN CONCERNED WITH APPLYING TO THE
PARTICULAR FACTS BEFORE THE COURT THE CONSIDERATIONS AND STANDARDS
FORMULATED IN BROWN V. MARYLAND FOR DETERMINING WHEN THE EXCLUSIVE
NATIONAL POWER ENDS AND STATE POWER BEGINS.  (FN6)  IN WORDS GROWN
FAMILIAR WITH JUDICIAL STATEMENT, YET DESERVING OF REPETITION HERE, THE
GREAT CHIEF JUSTICE STATED BOTH THE PROBLEM AND THE GUIDE FOR
DECISION.  "THERE MUST BE A POINT OF TIME," MARSHALL POSTULATED, "WHEN
THE PROHIBITION CEASES, AND THE POWER OF THE STATE TO TAX COMMENCES;
...  IT IS SUFFICIENT FOR THE PRESENT TO SAY, GENERALLY, THAT WHEN THE
IMPORTER HAS SO ACTED UPON THE THING IMPORTED, THAT IT HAS BECOME
INCORPORATED AND MIXED UP WITH THE MASS OF PROPERTY IN THE COUNTRY, IT
HAS, PERHAPS, LOST ITS DISTINCTIVE CHARACTER AS AN IMPORT, AND HAS
BECOME SUBJECT TO THE TAXING POWER OF THE STATE; BUT WHILE REMAINING
THE PROPERTY OF THE IMPORTER, IN HIS WAREHOUSE, IN THE ORIGINAL FORM OR
PACKAGE IN WHICH IT WAS IMPORTED, A TAX UPON IT IS TOO PLAINLY A DUTY
ON IMPORTS TO ESCAPE THE PROHIBITION IN THE CONSTITUTION."  12 WHEAT.,
AT 441-442. 

SINCE, IN BROWN V. MARYLAND, THE OBJECT OF IMPORTATION HAS BEEN SALE,
REASONED THE CHIEF JUSTICE, CERTAINLY THE IMPORTER WAS ENTITLED TO
REALIZE THAT AIM WITHOUT BEING SUBJECT TO STATE TAXATION.  ALTHOUGH
MORE SUBTLE, MORE BEFOGGING CASES MIGHT BE IMAGINED, IT WAS "PLAIN"
THAT, AT LEAST WHILE IN THE HANDS OF THE IMPORTER IN ITS ORIGINAL FORM
OR PACKAGE, THE FOREIGN GOOD REMAINED AN IMPORT AND THUS FREE FROM
STATE LEVIES. 

THE COUNSEL FOR THE STATE OF MARYLAND IN BROWN V. MARYLAND WAS ITS
ATTORNEY GENERAL, ROGER B. TANEY.  TWENTY YEARS LATER, SITTING AS CHIEF
JUSTICE, TANEY ACKNOWLEDGED THAT "FURTHER AND MORE MATURE REFLECTION"
HAD MADE CLEAR TO HIM THE WISDOM OF THE PRINCIPLES LAID DOWN BY HIS
PREDECESSOR.  "INDEED," SAID MR. CHIEF JUSTICE TANEY, "GOODS IMPORTED,
WHILE THEY REMAIN IN THE HANDS OF THE IMPORTER, IN THE FORM AND SHAPE
IN WHICH THEY WERE BROUGHT INTO THE COUNTRY, CAN IN NO JUST SENSE BE
REGARDED AS A PART OF THAT MASS OF PROPERTY IN THE STATE USUALLY TAXED
FOR THE SUPPORT OF THE STATE GOVERNMENT."  (FN7) 

IT IS NEEDLESS TO REVIEW THE CONSISTENCY WITH WHICH THIS COURT HAS
REPEATED AND APPLIED THE FORMULAS OF MARSHALL AND TANEY.  A FEW OF THE
MORE IMPORTANT EXAMPLES WILL SERVE AS CONCRETE ILLUSTRATIONS.  IN LOW
V. AUSTIN, 13 WALL.  29, THE SUPREME COURT OF THE STATE OF CALIFORNIA
HAD SUSTAINED THE APPLICATION OF A GENERAL AD VALOREM PROPERTY TAX TO
CASES OF IMPORTED FRENCH CHAMPAGNE WHICH WERE BEING HELD IN THE
WAREHOUSE OF THE IMPORTER, A COMMISSION MERCHANT, FOR PURPOSES OF
SALE.   THE CALIFORNIA COURT WAS UNABLE TO DISCERN ANY "REASON WHY
IMPORTED GOODS, EXPOSED IN THE STORE OF A MERCHANT FOR SALE, DO NOT
CONSTITUTE A PORTION OF THE WEALTH OF THE STATE AS MUCH AS DO DOMESTIC
GOODS SIMILARLY SITUATED."  (FN8)  THIS COURT REJECTED THE REASONING OF
THE STATE COURT AS IN CONFLICT WITH THE PRINCIPLES OF BROWN V.
MARYLAND, AND INVALIDATED THE APPLICATION OF THE TAX TO THE IMPORTED
WINE.  "GOODS IMPORTED," SAID THIS COURT, "DO NOT LOSE THEIR CHARACTER
AS IMPORTS, AND BECOME INCORPORATED INTO THE MASS OF PROPERTY OF THE
STATE, UNTIL THEY HAVE PASSED FROM THE CONTROL OF THE IMPORTER OR BEEN
BROKEN UP BY HIM FROM THEIR ORIGINAL CASES.  WHILST RETAINING THEIR
CHARACTER AS IMPORTS, A TAX UPON THEM, IN ANY SHAPE, IS WITHIN THE
CONSTITUTIONAL PROHIBITION."  (FN9)  SIMILARLY, IN ANGLO-CHILEAN CORP.
V. ALABAMA, 288 U.S. 218, BAGS OF CHILEAN NITRATE STORED IN THE
IMPORTER'S WAREHOUSE, AWAITING SALE, WERE HELD TO BE IMMUNE FROM
ASSESSMENT UNDER THE GENERAL FRANCHISE TAX OF THE STATE OF ALABAMA. 
THE CONSISTENCY WITH WHICH THESE PRINCIPLES HAVE BEEN APPLIED IS
DEMONSTRATED EVEN MORE LUCIDLY IN THOSE INSTANCES IN WHICH THE COURT
HAS UPHELD A TAX ON GOODS HELD BY THE IMPORTER.  IN EACH SUCH CASE THE
TAX HAS BEEN ALLOWED ONLY AFTER AN INDUBITABLE DEMONSTRATION THAT THE
GOODS INVOLVED HAD BEEN SO ALTERED FROM THE PHYSICAL FORM IN WHICH THEY
HAD ARRIVED UPON IMPORTATION THAT THEY HAD LOST THEIR CHARACTER AS
FOREIGN IMPORTS AND HAD BECOME, THROUGH THE IMPORTER'S ACTION, A NEW
INGREDIENT OF THE GENERAL MASS OF PROPERTY OF THE STATE.  (FN10) 

THE HISTORIC STANDARDS GOVERNING THE APPLICATION OF THE IMPORT CLAUSE
RECEIVED RECENT REAFFIRMATION IN HOOVEN & ALLISON CO. V. EVATT, 324
U.S. 652.  THAT CASE IS OF COMPELLING SIGNIFICANCE HERE.  FOR THE
SITUATION THERE INVOLVED SO PRECISELY PARALLELS THE CIRCUMSTANCES NOW
BEFORE US AS TO CONTROL THESE CASES, UNLESS HOOVEN & ALLISON IS TO BE
OVERRULED AND THE DISSENTING VIEWS EXPRESSED IN THAT CASE ADOPTED AS
THE COURT'S VIEWS. 

THE HOOVEN & ALLISON COMPANY IMPORTED BALES OF FOREIGN HEMP FOR USE
IN THE MANUFACTURE OF CORDAGE AND SIMILAR PRODUCTS.  THE STATE OF OHIO
SOUGHT TO TAX THIS HEMP WHILE IT WAS STORED IN THE MANUFACTURER'S
WAREHOUSE SUBSEQUENT TO IMPORTATION, AND PRIOR TO USE.  DURING HEARINGS
BEFORE THE OHIO BOARD OF TAX APPEALS IT WAS ESTABLISHED THAT THE
COMPANY WAS ACCUSTOMED TO KEEP ON HAND MERELY A "MINIMUM WORKING
INVENTORY" OF IMPORTED HEMP, AN AMOUNT SUFFICIENT TO COMPENSATE FOR THE
THREE- TO SIX-MONTH DELAY INVOLVED IN SHIPPING THE HEMP FROM FOREIGN
COUNTRIES.  ON APPEAL, THE OHIO SUPREME COURT SUSTAINED THE TAX ON THE
GROUNDS THAT THE HEMP, HAVING BEEN STORED FOR THE PURPOSES OF
MANUFACTURE, HAD LOST ITS CONSTITUTIONAL IMMUNITY.  IN SUPPORT OF ITS
CONCLUSION THE OHIO COURT QUOTED THE PORTION OF THE PROCEEDINGS BELOW
IN WHICH THE COMPANY HAD ADMITTED THE PRESENCE OF ONLY A "MINIMUM
WORKING INVENTORY."  THIS FACT WAS URGED BEFORE THIS COURT IN SUPPORT
OF THE STATE'S REQUEST FOR AFFIRMANCE.  (FN11) 

THIS COURT INVALIDATED THE TAX AND REVERSED THE JUDGMENT OF THE OHIO
SUPREME COURT.  MR. CHIEF JUSTICE STONE THUS SPOKE FOR THE COURT: 

"ALTHOUGH ONE JUSTICE DISSENTED IN BROWN V. MARYLAND, SUPRA, FROM
THAT DAY TO THIS, THIS COURT HAS HELD, WITHOUT A DISSENTING VOICE, THAT
THINGS IMPORTED ARE IMPORTS ENTITLED TO THE IMMUNITY CONFERRED BY THE
CONSTITUTION; THAT THAT IMMUNITY SURVIVES THEIR ARRIVAL IN THIS COUNTRY
AND CONTINUES UNTIL THEY ARE SOLD, REMOVED FROM THE ORIGINAL PACKAGE,
OR PUT TO THE USE FOR WHICH THEY ARE IMPORTED."  324 U.S., AT 657. 

     *         *         *         *         * 

"  ...  NO OPINION OF THIS COURT HAS EVER SAID OR INTIMATED THAT
IMPORTS HELD BY THE IMPORTER IN THE ORIGINAL PACKAGE AND BEFORE THEY
WERE SUBJECTED TO THE MANUFACTURE FOR WHICH THEY WERE IMPORTED, ARE
LIABLE TO STATE TAXATION.  ON THE CONTRARY, CHIEF JUSTICE TANEY, IN
AFFIRMING THE DOCTRINE OF BROWN V. MARYLAND, IN WHICH HE APPEARED AS
COUNSEL FOR THE STATE, DECLARED, AS WE NOW AFFIRM: 'INDEED, GOODS
IMPORTED, WHILE THEY REMAIN IN THE HANDS OF THE IMPORTER, IN THE FORM
AND SHAPE IN WHICH THEY WERE BROUGHT INTO THE COUNTRY, CAN IN NO JUST
SENSE BE REGARDED AS A PART OF THAT MASS OF PROPERTY IN THE STATE
USUALLY TAXED FOR THE SUPPORT OF STATE GOVERNMENT.'  ...  . 

"  ...  WE DO NOT PERCEIVE UPON WHAT GROUNDS IT CAN BE THOUGHT THAT
IMPORTS FOR MANUFACTURE LOSE THEIR CHARACTER AS IMPORTS ANY SOONER OR
MORE READILY THAN IMPORTS FOR SALE.  THE CONSTITUTIONAL NECESSITY THAT
THE IMMUNITY, IF IT IS TO BE PRESERVED AT ALL, SURVIVE THE LANDING OF
THE MERCHANIDSE IN THE UNITED STATES AND CONTINUE UNTIL A POINT IS
REACHED, CAPABLE OF PRACTICAL DETERMINATION, WHEN IT CAN FAIRLY BE SAID
THAT IT HAS BECOME A PART OF THE MASS OF TAXABLE PROPERTY WITHIN A
STATE, IS THE SAME IN BOTH CASES."  324 U.S., AT 666-667. 

INDEED THERE IS NO PROCESS OF LOGIC, HOWEVER DEXTROUS, WHICH WOULD
STRIKE DOWN A TAX ON IMPORTED GOODS BEING HELD PRIOR TO SALE AND ALLOW
A TAX ON GOODS STORE PRIOR TO THE PROCESSING WHICH IS PRELIMINARY TO
SALE.  IN FACT, THE LATTER TAX IS LESS ESSENTIAL TO STATE REVENUE
SINCE, IN THE CASE OF GOODS HELD FOR MANUFACTURE, THE STATE STILL
RETAINS THE OPPORTUNITY TO IMPOSE A TAX ON THE FIRST SALE.  IF THE
MERCHANT WHO IMPORTED GOODS FOR THE PURPOSE OF SALE WAS ENTITLED TO
REALIZE THAT PURPOSE BEFORE BEING SUBJECT TO STATE TAXES, CERTAINLY THE
MANUFACTURER WHO HAD IMPORTED GOODS IN ORDER TO PROCESS THEM WAS
ENTITLED TO NO LESSER PRIVILEGE.  GOODS LYING IN A MANUFACTURER'S
WAREHOUSE IN THEIR ORIGINAL FORM OR CONTAINER ARE NO MORE A PART OF THE
GENERAL MASS OF PROPERTY OF A STATE THAN ARE GOODS WHICH ARE DISPLAYED
BY A COMMISSION MERCHANT, IN THEIR ORIGINAL CRATES, FOR PURPOSES OF
SALE; NOR IS A TAX ON GOODS STORED FOR MANUFACTURE ANY LESS OF AN
"INTERCEPTION" OF THOSE GOODS WHILE THEY ARE STILL IMPORTS THAN IS A
TAX ON GOODS IMMEDIATELY PRIOR TO THEIR FIRST SALE.  CLEARLY HOOVEN &
ALLISON DID NOT REPRESENT AN EXTENSION OF THE PRINCIPLES OF BROWN V.
MARYLAND BUT WAS AN APPLICATION OF THAT DECISION IN A CONTEXT WHERE TO
DISTINGUISH THE PRINCIPLE WOULD HAVE BEEN TO REJECT IT.  (FN12) 

THE LUCID STANDARDS DEVELOPED BY THIS COURT FOR THE INTERPRETATION OF
THE IMPORT CLAUSE GIVE CLEAR GUIDANCE FOR THE DISPOSITION OF THE
PRESENT CASES.  WE ACCEPT THE FINDING OF THE WISCONSIN COURTS THAT THE
IMPORTED LUMBER WAS STORED FOR THE DOMINANT PURPOSE OF AIR DRYING. 
HAVING ENTERED THE PROCESS OF MANUFACTURE, THE GOODS HAD BECOME SUBJECT
TO THE TAXING POWER OF THE STATE.  HOWEVER, NEITHER THE IMPORTED ORES
IN NO. 9 NOR THE FOREIGN VENEERS IN NO. 44 HAD BEEN SUBJECT TO
MANUFACTURING.  ON TAX DAY THEY LAY IN THE MANUFACTURER'S STORAGE AREA,
IN THEIR ORIGINAL "FORM AND SHAPE," AWAITING THEIR INITIAL PROCESSING. 
THUS THE TAXES SOUGHT TO BE LEVIED ON THESE MATERIALS ARE CLEARLY
BARRED BY THE HISTORIC SERIES OF ADJUDICATIONS OF THIS COURT, WHICH
HAVE ESTABLISHED THAT GOODS SO SITUATED, WHETHER AWAITING SALE OR
MANUFACTURE, ARE CONSTITUTIONALLY IMMUNE FROM STATE TAXATION UNDER THE
PROSCRIPTION OF ART. I, SEC. 10, CL. 2, OF THE CONSTITUTION. 

YET THE COURT DOES NOT CHOOSE TO TAKE THIS PLAINLY MARKED PATH OF
CONSTITUTIONAL DECISION.  RATHER IT HAS EFFECTIVELY DEPARTED FROM
ESTABLISHED DOCTRINE AND UPHOLDS THE CHALLENGED TAXES.  IT DOES SO ON
THE BASIS OF A THEORY WHICH IS AS ELUSIVE TO LOGIC AS IT IS OPPOSED TO
AUTHORITY - A THEORY WHICH IS NOT ONLY UNSUPPORTED BY ECONOMIC FACT OR
REASON AND WITHOUT BASIS IN ANY OF THE INVOKED "REALITIES," BUT WHICH
TURNS BROWN V. MARYLAND AND ITS PROGENY INTO AD HOC RESULTS UNRELATED
TO THEIR RATIONALE, AND DISREGARDS THE HARMONIOUS REASONING ON WHICH
THESE DECISIONS WERE BASED AND THE PROCESS OF ONE HUNDRED AND THIRTY
TWO YEARS OF CONSTITUTIONAL ADJUDICATION. 

THE COURT FINDS SUPPORT FOR ITS DECISION IN THE LANGUAGE OF HOOVEN &
ALLISON.  "UNLIKE HOOVEN," WE ARE TOLD, "THESE ARE NOT CASES OF THE
MERE STORAGE IN A WAREHOUSE OF IMPORTED MATERIALS INTENDED FOR EVENTUAL
USE IN MANUFACTURING BUT NOT FOUND TO HAVE BEEN ESSENTIAL TO CURRENT
OPERATIONAL NEEDS."  ON THE ASSUMPTION THAT THE CASES BEFORE US PRESENT
A SITUATION NOT GOVERNED BY PRIOR ADJUDICATION, IT IS MAINTAINED THAT,
SINCE THE GOODS IN QUESTION HAD BEEN "IRREVOCABLY COMMITTED  ...  TO
'USE IN MANUFACTURING' AT THE PLANT AND POINT OF FINAL DESTINATION,"
AND WERE BEING USED TO SUPPLY THE DAILY MANUFACTURING NEEDS OF THE
PLANT, PETITIONERS MUST BE DEEMED TO HAVE "SO ACTED UPON THE IMPORTED
MATERIALS AS TO CAUSE THEM TO LOSE THEIR DISTINCTIVE CHARACTER AS
'IMPORTS.'"  BUT IS NOT THIS MERELY A WAY OF GIVING AN ASSERTED
CONCLUSION OF LAW THE APPEARANCE OF A FACT?  THE VITAL QUESTION IS HOW,
IF NOT WHEN, DO "IMPORTED MATERIALS  ...  LOSE THEIR DISTINCTIVE
CHARACTER AS 'IMPORTS.'"  AFTER ALL, THE VAST BULK OF IMPORTS ARE
BROUGHT IN FOR COMMERCIAL PURPOSES - TO BE EXPOSED FOR SALE IN THEIR
ORIGINAL FORM OR TO BE USED AS RAW MATERIALS IN MANUFACTURE.  THEY ARE,
THAT IS, "IRREVOCABLY COMMITTED" TO BE SOLD OR TO BE USED IN
MANUFACTURING.  THEY ARE NOT, NORMALLY, BROUGHT IN TO BE DUMPED INTO
THE SEA, AS WAS THE TEA AT THE BOSTON TEA PARTY.  OF COURSE THE GOODS
HERE HAD BEEN IMPORTED AND STORED FOR A MANUFACTURING PURPOSE.  THE
MANUFACTUER DID NOT IMPORT THEM TO SIT IDLY IN HIS STORAGE AREA.    THE
VERY GROUND NOW RELIED UPON BY THE COURT, IN ITS AFFIRMANCE OF THE
CHALLENGED TAXES, WAS REJECTED IN HOOVEN & ALLISON, AS THE RECORD IN
THAT CASE OVERWHELMINGLY DEMONSTRATES.  (FN13)  ONE IS BOUND TO SAY
THAT THE PASSAGE QUOTED BY THE COURT FROM MR. CHIEF JUSTICE STONE'S
OPINION IN SUPPORT OF THE STATEMENT THAT THE CASES BEFORE US ARE
"UNLIKE HOOVEN & ALLISON," DOES NOT SUPPORT THAT PROPOSITION.  (FN14) 

PUTTING THUS TO ONE SIDE THE UNWARRANTED RELIANCE ON LANGUAGE IN
HOOVEN & ALLISON, LET US EXAMINE THE BASIS ON WHICH THE STATE TAXES ARE
UPHELD.  BOTH THE IMPORTED VENEERS IN CITY OF ALGOMA AND THE ORE IN
YOUNGSTOWN, THE COURT HOLDS, MUST BE SAID TO HAVE BEEN "PUT TO THE USE
FOR WHICH THEY WERE IMPORTED," TO HAVE "ENTERED THE MANUFACTURING
PROCESS" AND THEREFORE TO HAVE LOST THEIR CONSTITUTIONAL IMMUNITY,
SINCE THEY WERE "NOT ONLY NEEDED, IMPORTED AND IRREVOCABLY COMMITTED TO
SUPPLY, BUT WERE ACTUALLY BEING USED TO SUPPLY, THE DAILY REQUIREMENTS
OF THE PLANT."  AGAIN ONE MUST ASK WHETHER THESE PHRASES MEAN ANY MORE
THAN THAT THE GOODS WERE BEING HELD BY THE MANUFACTURER FOR THE PURPOSE
FOR WHICH HE HAD IMPORTED THEM - USE IN MANUFACTURE.  THEY HAD NOT BEEN
PROCESSED, CHANGED FROM THEIR ORIGINAL FORM OR SHAPE, ACTED UPON,
PHYSICALLY ALTERED IN THE SLIGHTEST, MINGLED WITH DOMESTIC GOODS, OR
"USED," IN THE SENSE THAT ANYTHING WAS DONE TO THEM.  THEY SIMPLY LAY
IN STORAGE AREA AWAITING USE.  TO SAY THAT THE GOODS "WERE ACTUALLY
BEING USED TO SUPPLY, THE DAILY REQUIREMENTS OF THE PLANT," SIMPLY
AFFIRMS THE OBVIOUS FACT THAT THE IMPORTS, UNAFFECTED IN THE FORM IN
WHICH THEY WERE BROUGHT IN FROM ABROAD AND DEPOSITED, AWAITED THEIR
INTENDED, BUT NOT BEGUN, MANUFACTURING PROCESS.  IN ALL PRIOR
CONSIDERATIONS OF THE IMPORT-EXPORT CLAUSE THE IMMUNITY OF IMPORTED
GOODS HAS BEEN TERMINATED ONLY BY PHYSICAL HANDLING OR ALTERATION, NOT
BY REFERENCE TO THEIR ASSUMED PROSPECTIVE ROLE IN THE IMPORTER'S USE OF
THEM.  THE IMPORTED HEMP IN HOOVEN & ALLISON WAS SIMILARLY "NEEDED." 
IT TOO WAS "IRREVOCABLY COMMITTED TO SUPPLY," AND CLEARLY IT WAS
"ACTUALLY BEING USED TO SUPPLY THE DAILY REQUIREMENTS OF THE PLANT." 
TO THAT END THE HEMP WAS IMPORTED.  IF THE HEMP WAS NOT TO BE SO USED
IT WOULD NOT HAVE BEEN IMPORTED. 

FURTHERMORE, IF WE SIMPLY SUBSTITUTE "PLACE OF SALE," FOR "PLANT" IN
THE COURT'S REASONING - AND WE ARE NOT VOUCHSAFED REASONS EITHER IN
ABSTRACT REASONING OR IN PRACTICAL LOGIC TO DISALLOW IT - THE IDENTICAL
ENUMERATION OF FACTORS HERE THOUGHT SUFFICIENT TO SUBJECT THE IMPORTS
TO TAX IS FOUND TO BE PRESENT IN VIRTUALLY EVERY CASE IN WHICH THIS
COURT HAS INVALIDATED A STATE TAX ON IMPORTS.  THE CRATES OF CHAMPAGNE
IN LOW V. AUSTIN, AND THE BAGS OF NITRATE IN ANGLO-CHILEAN CORP. WERE
ALSO "NEEDED, IMPORTED AND IRREVOCABLY COMMITTED TO SUPPLY," AND "WERE
ACTUALLY BEING USED TO SUPPLY, THE DAILY REQUIREMENTS" OF THE PLACE OF
SALE.  IN EFFECT, THE RESULT OF TODAY'S DECISION MEANS THAT IF IMPORTED
GOODS ARE NEEDED, THEY ARE TAXABLE.  IF USELESS, THEY RETAIN THEIR
CONSTITUTIONAL IMMUNITY. 

A CLOSE EXAMINATION OF THE YOUNGSTOWN CASE MAKES APPARENT THIS
EFFECTIVE REVERSAL OF ALL PREVIOUS JUDICIAL DECISION ON THE IMPORT
CLAUSE, AND JUSTIFIES CONCERN OVER TODAY'S HOLDING.  THE STIPULATION OF
FACTS MERELY PROVIDES THAT THE ORE HAD BEEN IMPORTED FOR PURPOSES OF
MANUFACTURE AND THAT "AT LEAST" THREE MONTHS' SUPPLY WAS GENERALLY KEPT
ON HAND.  (R. 35.)  THERE WERE NO STIPULATIONS, NOR WERE THERE ANY
FINDINGS, AS TO THE RATE OF USE OF THE ORE, THE IMMEDIACY OF THE NEED
FOR IT, OR ITS RELATION TO THE REQUIREMENTS OF THE PLANT, WHICH ALSO
USED DOMESTIC ORE IN ITS MANUFACTURING.  WE HAVE SIMPLY THE FACT THAT
AN INVENTORY OF ORE WAS KEPT FOR EVENTUAL USE.  THE TAX WAS SUSTAINED
BY THE OHIO SUPREME COURT ON THE GROUND THAT THE BULK ORE HAD BECOME
MINGLED WITH THE GENERAL PROPERTY OF THE STATE BECAUSE NEW ORE HAD BEEN
ADDED TO THE PILE, AND OLD ORE REMOVED.  (FN15)  THE OHIO COURT DID NOT
DISCUSS OR REST ON THE FACT THAT THE GOODS WERE "SO ESSENTIAL TO
CURRENT MANUFACTURING REQUIREMENTS THAT THEY MUST BE SAID TO HAVE
ENTERED THE PROCESS OF MANUFACTURE."  THERE IS NO POSSIBLE WAY TO MAKE
THE COURT'S REASONING FIT WITH THE CIRCUMSTANCES WHICH UNDERLIE AND
DEFINE BROWN V. MARYLAND OR HOOVEN & ALLISON.  NOTHING HAS BEEN DONE TO
THE ORE; IT IS IN ITS ORIGINAL FORM AND SHAPE PRIOR TO USE.  EVEN AS A
MATTER OF SOUND ACCOUNTING, WERE THAT RELEVANT, THE GOODS COULD NOT BE
SAID TO HAVE ENTERED THE PROCESS OF MANUFACTURE.  WE CANNOT ASSUME OR
FICTIONALIZE FACTS.  THEY MUST BE FOUND TO EXIST.  BY ASSUMING THEM,
THE COURT STRIPS THEM OF RELEVANCE AND IMPLIEDLY REJECTS THE UNBROKEN
MEANING THAT THE DECISIONS HAVE GIVEN THE IMPORT CLAUSE. 

NOR IS THE COURT'S CONCLUSION STRENGTHENED BY THE SUGGESTION THAT,
SINCE PETITIONER DID NOT CONTEST THE TAXABILITY OF THAT ORE WHICH HAD
BEEN REMOVED TO STOCK BINS OR HOUSES, WE MUST ALLOW THE REST OF THE ORE
TO BE TAXED, AS TO DISTINGUISH BETWEEN THE TWO WOULD BE INCONGRUOUS. 
THE QUESTION OF THE TAXABILITY OF THE REMOVED ORE IS NOT BEFORE USE. 
THAT QUESTION WAS NOT INVOLVED IN ANY PREVIOUS PROCEEDING IN THIS
CASE.  WE HAVE NOT THE BASIS FOR KNOWLEDGE AS TO WHAT, IF ANY,
PROCESSING THE ORE UNDERWENT WHEN REMOVED TO THE STOCK BINS.  THERE IS
CERTAINLY NO BASIS FOR ASSIGNING A HYPOTHETICAL CONSTITUTIONAL POSITION
TO THE REMOVED ORE, AND USING SUCH AN ARGUMENTATIVE FIGMENT AS THE
MEANS FOR UPHOLDING THE TAX ON THE ORE ABOUT WHICH WE DO HAVE THE
PRECISE FACTS AND WHOSE IMMUNITY IS THE QUESTION BEFORE US. 

IN UNITED STATES PLYWOOD V. CITY OF ALGOMA, ONE-HALF OF THE VALUE OF
THE IMPORTED WOOD WAS ASSESSED FOR TAXATION.  THAT AMOUNT WAS FOUND TO
BE NECESSARY IN ORDER TO MEET "CURRENT OPERATIONAL NEEDS," (R. 31) AND
WAS THUS THOUGHT TO BE SUBJECT TO STATE TAXATION.  FORMULAS FOR THE
DETERMINATION OF CURRENT OPERATIONAL NEEDS WERE DISCUSSED IN DETAIL BY
THE WISCONSIN COURTS, BUT THE COURT'S OPINION IN YOUNGSTOWN MAKES IT
UNNECESSARY TO EXAMINE THOSE FORMULAS HERE.  (FN16)  FOR THE REASONING
OF YOUNGSTOWN MAKES IT CLEAR THAT NOT MERELY HALF, BUT ALL OF THE
IMPORTED VENEERS CAN BE PROPERLY TAXED BY WISCONSIN, SINCE THEY WERE
ALL "NOT ONLY NEEDED, IMPORTED, AND IRREVOCABLY COMMITTED TO SUPPLY,
BUT WERE ACTUALLY BEING USED TO SUPPLY, THE DAILY MANUFACTURING
REQUIREMENTS OF THE PLANT."  I CAN ONLY REITERATE THAT THE FACT THAT
GOODS WERE "ACTUALLY" TO BE USED FOR THE PURPOSE FOR WHICH IMPORTED IS
NOT, AND HAS NEVER BEEN THOUGHT TO BE, RELEVANT IN DETERMINING THEIR
TAXABILITY UNDER THE IMPORT CLAUSE.  THE ABSTRACT ASSIGNMENT OF A
STATUS TO GOODS WHICH ARE TO BE USED IN MANUFACTURE IS CERTAINLY NOT
GERMANE TO AN EVALUATION OF THAT PHYSICAL TRANSFORMATION OF THE GOODS
WHICH HAS HITHERTO BEEN REQUIRED BEFORE AN IMPORT COULD BECOME
VULNERABLE TO STATE TAXES.  TO SAY THAT GOODS ARE NECESSARY TO MEET
REQUIREMENTS MERELY ASSERTS A TRUISM WHICH IS EQUALLY APPLICABLE IN
EVERY CASE THIS COURT HAS DECIDED UNDER THE IMPORT CLAUSE. 

THE COURT SUMMARIZES ITS CONCLUSION BY STATING THAT THE IMPORTED
GOODS "STOOD IN THE SAME RELATION TO THE STATE AS LIKE PILES OF
DOMESTIC MATERIALS AT THE SAME PLACE THAT WERE KEPT FOR USE AND USED IN
THE SAME WAY  ...  ."  (FN17)  THE COURT THEN CONTINUES: 

"IN THOSE CIRCUMSTANCES, THE TAX WAS NOT ON 'IMPORTS,' NOR WAS IT A
TAX ON THE MATERIALS BECAUSE THEY HAD BEEN IMPORTED, BUT BECAUSE AT THE
TIME OF THE ASSESSMENT THEY WERE BEING USED, IN EVERY PRACTICAL SENSE,
FOR THE PURPOSES FOR WHICH THEY HAD BEEN IMPORTED.  THEY WERE THEREFORE
SUBJECT TO TAXATION JUST LIKE DOMESTIC PROPERTY THAT WAS KEPT AT THE
SAME PLACE IN THE SAME WAY FOR THE SAME USE.  WE CANNOT IMPUTE TO THE
FRAMERS OF THE CONSTITUTION A PURPOSE TO MAKE SUCH A DISCRIMINATION IN
FAVOR OF MATERIALS IMPORTED FROM OTHER COUNTRIES AS WOULD RESULT IF WE
APPROVED THE VIEWS PRESSED UPON US BY THE MANUFACTURERS." 

THIS IS EXACTLY THE ARGUMENT OFFERED BY THE SUPREME COURT OF
CALIFORNIA IN SUPPORT OF THE TAX INVOLVED IN LOW V. AUSTIN.  THAT
ARGUMENT WAS THEN REJECTED UNANIMOUSLY BY THIS COURT AND HAS NEVER
THEREAFTER WON ACCEPTANCE.  WHETHER THE IMPOSITION OF A TAX RESULTED IN
"A DISCRIMINATION IN FAVOR OF MATERIALS IMPORTED FROM OTHER COUNTRIES"
HAS NEVER BEEN THOUGHT RELEVANT TO THE DETERMINATION OF ITS
CONSTITUTIONAL VALIDITY.  THE TAXES WHICH THE COURT STRUCK DOWN IN LOW
V. AUSTIN, IN ANGLO-CHILEAN CORP. AND IN HOOVEN & ALLISON WERE NON
DISCRIMINATORY TAXES WHICH FELL EQUALLY ON IMPORTED AND DOMESTIC GOODS
SIMILARLY SITUATED.  THE FRAMERS OF THE CONSTITUTION PROVIDED AN
ABSOLUTE IMMUNITY FOR IMPORTS.  THE DECISIONS OF THIS COURT HAVE GIVEN
TO THE BRIEF PHRASES OF ART. I, SEC. 10, CL. 2, THE CONTENT OF A
COMMAND: "A STATE SHALL NOT TAX IMPORTS," NOT, "A STATE SHALL NOT TAX
IMPORTS DISCRIMINATORILY."  IT IS ONE HUNDRED AND THIRTY-TWO YEARS TOO
LATE TO REFUSE TO ATTRIBUTE TO THE FRAMERS THE PURPOSE OF FREEING
IMPORTS FROM STATE TAXATION WHICH THIS COURT HAS CONSISTENTLY ASSUMED. 
(FN18) 

MOREOVER, IT CANNOT PROPERLY BE SAID THAT THE APPLICATION HERE OF THE
SETTLED PRINCIPLES OF THE IMPORT CLAUSE RESULTS IN "DISCRIMINATION" IN
FAVOR OF FOREIGN GOODS.  WHETHER FOREIGN GOODS ARE RECEIVING A TAX
ADVANTAGE OVER SIMILAR DOMESTIC GOODS CAN ONLY BE DETERMINED BY AN
EVALUATION OF THE FULL RANGE OF IMPOSTS AND DUTIES WHICH THE IMPORTER
HAS BEEN REQUIRED TO PAY TO THE NATIONAL GOVERNMENT.  ONLY THEN CAN WE
KNOW, AS A MATTER OF ECONOMIC REALITY, WHETHER, IN FACT, THERE IS
DISCRIMINATION.  AND IF WE FIND DISCRIMINATION, IT IS THE RESULT OF THE
DECISION OF THE CONGRESS AND THE PRESIDENT THAT THE GOODS INVOLVED
SHOULD, AS A MATTER OF NATIONAL POLICY, RECEIVE PREFERENTIAL
TREATMENT.  CERTAINLY THIS COURT SHOULD BE RELUCTANT TO MAKE INROADS ON
A RULE OF LAW SO WELL AND LUCIDLY SETTLED THAT IT MAY LEGITIMATELY BE
REGARDED AS AN INGREDIENT IN THE FORMULATION WHICH IS MADE BY THE
NATIONAL GOVERNMENT WHEN IT DETERMINES, AS A CONSIDERED NATIONAL
POLICY, THE EXTENT TO WHICH IMPORT DUTIES SHOULD BE IMPOSED. 

RELUCTANT AS ONE IS TO SAY SO, IT MUST BE SAID THAT THE COURT
PROPOSES NO REASON FOR ITS DECISION WHICH HAS NOT HERETOFORE BEEN
REJECTED BY THIS COURT.  NOR ARE WE POINTED TO NEW COMPELLING POLICIES
WHICH MUST BE INVOKED IN ORDER TO UPSET A FIRMLY ESTABLISHED PRINCIPLE
OF OUR CONSTITUTIONAL LAW; A PRINCIPLE WHICH, PERHAPS MORE CLEARLY THAN
ANY OTHER CONSTITUTIONAL STANDARD, HAS ARRIVED AT A LUCID, COHERENT,
AND EMINENTLY WORKABLE DISTRIBUTION OF POWER BETWEEN THE NATION AND THE
STATES. 

IN THE YOUNGSTOWN CASE APPELLANT ALSO CLAIMS THAT THE TAX ON A
PORTION OF ITS DOMESTIC ORES WAS IMPOSED IN VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  I CONCUR IN THE COURT'S
REJECTION OF THAT CLAIM. 

FN1  ALTHOUGH THE PRINCIPLES OF BROWN V. MARYLAND ARE OFTEN TERMED
THE "ORIGINAL PACKAGE DOCTRINE," MARSHALL WAS CONCERNED WITH A
"PACKAGE" ONLY BECAUSE THE STATUTE IN THAT CASE TAXED THE SELLING OF
GOODS IN THEIR ORIGINAL PACKAGES.  12 WHEAT., AT 436 & 443.  MARSHALL
HIMSELF IS CAREFUL TO USE THE PHRASE, "FORM OR PACKAGE," 12 WHEAT., AT
442, AND MR. CHIEF JUSTICE TANEY, IN HIS REFORMULATION OF BROWN V.
MARYLAND, USED THE CHARACTERIZATION "FORM AND SHAPE."  SEE P. 560,
INFRA.  "IT IS A MATTER OF HORNBOOK KNOWLEDGE THAT THE ORIGINAL PACKAGE
STATEMENT OF JUSTICE MARSHALL WAS AN ILLUSTRATION, RATHER THAN A
FORMULA, AND THAT ITS APPLICATION IS EVIDENTIARY, AND NOT SUBSTANTIVE,
...  ."  CITY OF GALVESTON V. MEXICAN PETROLEUM CORP., 15 F.2D 208. 

FN2  SEE LETTER OF JAMES MADISON TO PROFESSOR DAVIS, 3 FARRAND,
RECORDS OF THE FEDERAL CONVENTION (1911), 520-521; FEDERALIST NO. 12
(LODGE ED. 1908) 67 (HAMILTON); IBID., NO. 44, AT 280 (MADISON). 

FN3  SEE FEDERALIST NO. 12 (LODGE ED. 1908) 67 (HAMILTON). 

FN4  SEE 2 FARRAND, RECORDS OF THE FEDERAL CONVENTION (1911), 441
442. 

FN5  IN RICHFIELD OIL CORP. V. STATE BOARD OF EQUALIZATION, 329 U.S.
69, AT 75-76, WE POINTED OUT THAT: 

"  ...  THE LAW UNDER THE COMMERCE CLAUSE HAS BEEN FASHIONED BY THE
COURT IN AN EFFORT 'TO RECONCILE COMPETING CONSTITUTIONAL DEMANDS, THAT
COMMERCE BETWEEN THE STATES SHALL NOT BE UNDULY IMPEDED BY STATE
ACTION, AND THAT THE POWER TO LAY TAXES FOR THE SUPPORT OF STATE
GOVERNMENT SHALL NOT BE UNDULY CURTAILED.'  THAT ACCOMMODATION HAS BEEN
MADE BY UPHOLDING TAXES DESIGNED TO MAKE INTERSTATE COMMERCE BEAR A
FAIR SHARE OF THE COST OF THE LOCAL GOVERNMENT FROM WHICH IT RECEIVES
BENEFITS  ...  AND BY INVALIDATING THOSE WHICH DISCRIMINATE AGAINST
INTERSTATE COMMERCE, WHICH IMPOSE A LEVY FOR THE PRIVILEGE OF DOING IT,
WHICH PLACE AN UNDUE BURDEN ON IT  ...  . 

"IT SEEMS CLEAR THAT WE CANNOT WRITE ANY SUCH QUALIFICATIONS INTO THE
IMPORT-EXPORT CLAUSE.  IT PROHIBITS EVERY STATE FROM LAYING 'ANY' TAX
ON IMPORTS OR EXPORTS WITHOUT THE CONSENT OF CONGRESS ...  .  IT WOULD
ENTAIL A SUBSTANTIAL REVISION OF THE IMPORT-EXPORT CLAUSE TO SUBSTITUTE
FOR THE PROHIBITION AGAINST 'ANY' TAX A PROHIBITION AGAINST 'ANY
DISCRIMINATORY' TAX.  ...  THE TWO CLAUSES, THOUGH COMPLEMENTARY, SERVE
DIFFERENT ENDS.  AND THE LIMITATIONS OF ONE CANNOT BE READ INTO THE
OTHER." 

SEE ALSO WOODRUFF V. PARHAM, 8 WALL.  123; SONNEBORN BROS. V.
CURETON, 262 U.S. 506; FEDERALIST NO. 32 (LODGE ED. 1908) 186-188
(HAMILTON). 

FN6  HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652; ANGLO-CHILEAN CORP.
V. ALABAMA, 288 U.S. 218; GULF FISHERIES CO. V. MACINERNEY, 276 U.S.
124; NEW YORK EX REL. BURKE V. WELLS, 208 U.S. 14; MAY V. NEW ORLEANS,
178 U.S. 496; LOW V. AUSTIN, 13 WALL.  29; WARING V. THE MAYOR, 8
WALL.  110.  SEE ALSO MCGOLDRICK V. GULF OIL CORP., 309 U.S. 414; COOK
V. PENNSYLVANIA, 97 U.S. 566.  FOR ADDITIONAL STATEMENTS OF THE
AUTHORITY AND IMPORTANCE OF THE DOCTRINE OF BROWN V. MARYLAND, SEE
AMERICAN STEEL & WIRE CO. V. SPEED, 192 U.S. 500, 519-520; NORFOLK &
WESTERN R. CO. V. SIMS, 191 U.S. 441, 449; THE LICENSE CASES, 5 HOW. 
504, 575.    FN7  THE LICENSE CASES, 5 HOW.  504, 575. 

FN8  1 CALIF. UNREPORTED CASES 638, 643.  THE PASSAGE IS ALSO QUOTED
AT 13 WALL.  30-31. 

FN9  13 WALL., AT 34. 

FN10  NEW YORK EX REL. BURKE V. WELLS, 208 U.S. 14; GULF FISHERIES
CO. V. MACINERNEY, 276 U.S. 124; MAY V. NEW ORLEANS, 178 U.S. 496.  CF.
WARING V. THE MAYOR, 8 WALL.  110. 

FN11  THE RECORD AND PROCEEDINGS BELOW IN HOOVEN & ALLISON ARE
DISCUSSED IN DETAIL AT NOTES 13 AND 14, INFRA. 

FN12  THE OPINION OF THE COURT ASSERTS THAT THE DECISION IN HOOVEN &
ALLISON IS INCONSISTENT WITH THE REASONING OF MARSHALL IN BROWN V.
MARYLAND.  WE ARE TOLD THAT BROWN V. MARYLAND "HOLDS THAT GOODS BROUGHT
INTO THE COUNTRY BY AN IMPORTER 'FOR HIS OWN USE' ARE NOT EXEMPTED FROM
STATE TAXATION  ...  AND HOOVEN & ALLISON CO. V. EVATT,  ...  HOLDS
THAT THEY ARE  ...  ."  SURELY THIS EXPRESSES A MISAPPREHENSION OF WHAT
MARSHALL SAID.  SUCH A CONTENTION WAS MADE HERE, BY THE DISSENT IN
HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652, AT 686-688 (DISSENTING
OPINION), AND SILENTLY REJECTED.  FOR ITS REFUTATION SEE PROFESSOR
THOMAS REED POWELL'S STATE TAXATION OF IMPORTS - WHEN DOES AN IMPORT
CEASE TO BE AN IMPORT, 58 HARV. L. REV. 858, 859-864. 

THE STATEMENT OF MARSHALL WHICH IS THE BASIS OF WHAT IS ATTRIBUTED TO
HIM WAS MADE BY THE CHIEF JUSTICE IN RESPONSE TO A CONTENTION BY THE
STATE OF MARYLAND THAT TO GRANT IMMUNITY IN THIS CASE WOULD MEAN THAT
AN IMPORTER "MAY BRING IN GOODS, AS PLATE, FOR HIS OWN USE, AND THUS
RETAIN MUCH VALUABLE PROPERTY EXEMPT FROM TAXATION."  12 WHEAT., AT 442
443.  MARSHALL THUS DEALT WITH THIS AND SIMILAR CONTENTIONS: 

"THIS INDICTMENT IS AGAINST THE IMPORTER, FOR SELLING A PACKAGE OF
DRY GOODS IN THE FORM IN WHICH IT WAS IMPORTED, WITHOUT A LICENSE. 
THIS STATE OF THINGS IS CHANGED IF HE SELLS THEM, OR OTHERWISE MIXES
THEM WITH THE GENERAL PROPERTY OF THE STATE, BY BREAKING UP HIS
PACKAGES, AND TRAVELLING WITH THEM AS AN ITINERANT PEDLAR.  IN THE
FIRST CASE, THE TAX INTERCEPTS THE IMPORT, AS AN IMPORT, IN ITS WAY TO
BECOME INCORPORATED WITH THE GENERAL MASS OF PROPERTY, AND DENIES IT
THE PRIVILEGE OF BECOMING SO INCORPORATED UNTIL IT SHALL HAVE
CONTRIBUTED TO THE REVENUE OF THE STATE.  IT DENIES TO THE IMPORTER THE
RIGHT OF USING THE PRIVILEGE WHICH HE HAS PURCHASED FROM THE UNITED
STATES, UNTIL HE SHALL HAVE ALSO PURCHASED IT FROM THE STATE.  IN THE
LAST CASES, THE TAX FINDS THE ARTICLE ALREADY INCORPORATED WITH THE
MASS OF PROPERTY BY THE ACT OF THE IMPORTER.  HE HAS USED THE PRIVILEGE
HE HAD PURCHASED, AND HAS HIMSELF MIXED THEM UP WITH THE COMMON MASS,
AND THE LAW MAY TREAT THEM AS IT FINDS THEM.  THE SAME OBSERVATIONS
APPLY TO PLATE, OR OTHER FURNITURE USED BY THE IMPORTER."  12 WHEAT.,
AT 443. 

IT IS CLEAR THAT MARSHALL IS REFERRING TO PERSONAL HOUSEHOLD GOODS
BROUGHT IN BY THE IMPORTER AND USED BY HIM.  HE IS REJECTING THE IDEA
THAT IMMUNITY CAN CONTINUE INDEFINITELY AFTER USE IF THERE HAS BEEN NO
SALE.  HE DOES NOT SAY, AS THE COURT WOULD HAVE HIM SAY, THAT GOODS
BROUGHT IN BY AN IMPORTER "FOR HIS OWN USE," OR GOODS "HELD FOR USE,"
ARE SUBJECT TO STATE TAXATION.  THE PHRASE "FOR HIS OWN USE," WHICH THE
COURT PLACES IN QUOTATION MARKS AND ATTRIBUTES TO MARSHALL, WAS THE
CHIEF JUSTICE'S STATEMENT OF COUNSEL'S CONTENTION AND IS NOT TO BE
FOUND IN HIS OWN CONCLUSION.  THE PHRASE "HELD FOR USE," WHICH THE
COURT ALSO ATTRIBUTES TO MARSHALL IN ITS PARAPHRASE OF HIS VIEWS, IS AN
INTERPOLATION NOWHERE TO BE FOUND IN THE CHIEF JUSTICE'S DISCUSSION. 
GOODS WHICH ARE IMPORTED FOR PURPOSES OF SALE ARE BROUGHT IN FOR "USE"
AS MUCH AS ARE GOODS WHICH HAVE BEEN BROUGHT IN FOR MANUFACTURE.  A TAX
IMPOSED PRIOR TO PROCESSING "INTERCEPTS" GOODS ON THEIR WAY TO
INCORPORATION IN THE GENERAL MASS OF PROPERTY AS EFFECTIVELY AS DOES A
TAX PRIOR TO SALE.  MARSHALL WAS NOT DISTINGUISHING BETWEEN GOODS
BROUGHT IN FOR MANUFACTURE AND THOSE BROUGHT IN FOR SALE.  THERE IS NO
RATIONAL DISTINCTION.  HE WAS MERELY DENYING IMMUNITY TO GOODS WHICH
HAD BEEN BROUGHT IN AND THEREAFTER ACTIVELY USED BY THE IMPORTER. 
THERE IS NOTHING IN BROWN V. MARYLAND THAT IS NOT IN COMPLETE ACCORD
WITH WHAT WAS DECIDED IN HOOVEN & ALLISON. 

FN13  AT THE HEARING BEFORE THE OHIO BOARD OF TAX APPEALS, THE GENERAL
MANAGER OF THE HOOVEN & ALLISON COMPANY WAS ASKED IF THE IMPORTED HEMP
WAS KEPT IN THE WAREHOUSE FOR ANY DEFINITE LENGTH OF TIME.  HE
ANSWERED: 

"NO; IT MIGHT BE WE WOULD NEED THE STUFF AS SOON AS IT GOT THERE AND
AGAIN WE MIGHT NOT; IT COMES FROM LONG DISTANCES AND WE DO NOT CARRY
ANY MORE INVENTORY THAN WE NEED TO; IT TAKES THREE TO SIX MONTHS FOR IT
TO GET TO US; WE ATTEMPT TO KEEP A BACKLOG FOR THAT; WE ATTEMPT TO RUN
OUR BUSINESS WITH A MINIMUM WORKING INVENTORY, OF COURSE."  TRANSCRIPT
OF RECORD, P. 42, HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652. 

RELYING IN LARGE PART ON THIS TESTIMONY THE SUPREME COURT OF OHIO
CONCLUDED THAT THE GOODS "HAD SO COME TO REST AS TO BE MINGLED WITH THE
MASS OF PROPERTY IN THIS COUNTRY  ...  ."  HOOVEN & ALLISON CO. V.
EVATT, 142 OHIO ST. 235, 242, 51 N.E.2D 723, 726.  IN ITS BRIEF BEFORE
THIS COURT, OHIO SUPPORTED THE VALIDITY OF THE TAX ON THE BASIS OF THE
ABOVE INDUSTRIAL CIRCUMSTANCES: 

"THE EVIDENCE IN THE INSTANT CASE SHOWS THAT THE PETITIONER PURCHASED
FIBERS SOLELY FOR ITS OWN USE, NEVER FOR SALE.  IT WAS IMPRACTICABLE TO
BUY FIBERS A BALE AT A TIME TO MEET THE IMMEDIATE NEEDS OF ITS MILL. 
IT TOOK FROM THREE TO SIX MONTHS TO GET DELIVERY AFTER AN ORDER WAS
PLACED.  THE UNDISPUTED TESTIMONY SHOWS THAT THE PETITIONER DID NOT
CARRY ANY MORE INVENTORY THAN WAS ACTUALLY NEEDED, BUT DUE TO THE
UNCERTAINTY OF DELIVERIES, IT ATTEMPTED 'TO KEEP A BACKLOG FOR THAT.' 
IT ATTEMPTED TO OPERATE 'WITH A MINIMUM WORKING INVENTORY' (R. 16).  IN
OTHER WORDS, WHEN THE IMPORTED GOODS REACHED THE PLANT THEY WERE
IMMEDIATELY USED, IN THAT THEY WERE ESSENTIAL TO THE CONTINUOUS DAILY
OPERATION OF PETITIONER'S PLANT."  BRIEF FOR RESPONDENT, P. 20, HOOVEN
& ALLISON CO. V. EVATT, 324 U.S. 652. 

THIS COURT'S DECISION DID NOT ACCEPT THE ARGUMENTS MADE BY THE STATE
THROUGHOUT THE COURSE OF LITIGATION.  THE THEORY THUS REJECTED NOW
SERVES AS THE BASIS FOR THIS DECISION. 

FN14  IN SUPPORT OF ITS ARGUMENT THAT THE CASES BEFORE US ARE
"UNLIKE" HOOVEN & ALLISON, THE COURT QUOTES FROM THE FOLLOWING PASSAGE
FROM THAT CASE: 

"IT CANNOT BE SAID THAT THE FIBERS WERE SUBJECTED TO MANUFACTURE WHEN
THEY WERE PLACED IN PETITIONER'S WAREHOUSE IN THEIR ORIGINAL PACKAGES. 
AND IT IS UNNECESSARY TO DECIDE WHETHER, FOR PURPOSES OF THE
CONSTITUTIONAL IMMUNITY, THE PRESENCE OF SOME FIBERS IN THE FACTORY WAS
SO ESSENTIAL TO CURRENT MANUFACTURING REQUIREMENTS THAT THEY COULD BE
SAID TO HAVE ENTERED THE PROCESS OF MANUFACTURE, AND HENCE WERE ALREADY
PUT TO THE USE FOR WHICH THEY WERE IMPORTED, BEFORE THEY WERE REMOVED
FROM THE ORIGINAL PACKAGES.  EVEN THOUGH THE INVENTORY OF RAW MATERIAL
REQUIRED TO BE KEPT ON HAND TO MEET THE CURRENT OPERATIONAL NEEDS OF A
MANUFACTURING BUSINESS COULD BE THOUGHT TO HAVE THEN ENTERED THE
MANUFACTURING PROCESS, THE DECISION OF THE OHIO SUPREME COURT DID NOT
REST ON THAT GROUND, AND THE RECORD AFFORDS NO BASIS FOR SAYING THAT
ANY PART OF PETITIONER'S FIBERS, STORED IN ITS WAREHOUSE, WERE REQUIRED
TO MEET SUCH IMMEDIATE CURRENT NEEDS.  HENCE WE HAVE NO OCCASION TO
CONSIDER THAT QUESTION."  324 U.S., AT 667. 

THE RECORD IN THE CASE, THE OPINIONS BELOW, AND THE BRIEFS IN THIS
COURT, LEAVE NO DOUBT THAT THIS PASSAGE DOES NOT REFER TO THE BULK OF
THE IMPORTED HEMP STORED IN THE WAREHOUSE OF THE HOOVEN & ALLISON
COMPANY AS A "MINIMUM WORKING INVENTORY."  INDEED, SUCH REFERENCE WOULD
BE WHOLLY INCONSISTENT WITH THE PRINCIPLES ON WHICH THE OPINION RESTS. 
DUE REGARD FOR THE RECORD AND FOR THE OPINIONS CLARIFIES THE CHIEF
JUSTICE'S MEANING.  WHEN THE IMPORTED HEMP WAS READY FOR USE IT WAS
MOVED FROM THE WAREHOUSE TO THE FACTORY.  AT THE HEARING, THE GENERAL
MANAGER TESTIFIED AS TO THIS HEMP: 

"  ...  IT IS REMOVED FROM THE RAW MATERIAL ACCOUNT AND CHARGED INTO
PROCESSING IN THE MILL; EACH BALE OF FIBER AS IT IS REMOVED FROM THE
RAW MATERIAL WAREHOUSE BECOMES, ACCORDING TO OUR RECORDS, IN PROCESS. 
OF COURSE WE HAVE TO BATCH AND TREAT THIS STUFF; IT MAY NOT BE USED FOR
A COUPLE OF DAYS; BUT AS SOON AS IT LEAVES THE WAREHOUSE IT IS CHARGED
IN PROCESS; ...  ."  TRANSCRIPT OF RECORD, P. 43, HOOVEN & ALLISON CO.
V. EVATT, 325 U.S. 652. 

THE OHIO SUPREME COURT TOOK SPECIAL NOTE OF THIS HEMP WHICH WAS IN
TRANSIT FROM THE WAREHOUSE TO THE PROCESSING LINE.  IT REMARKED THAT: 

"WHILE THE BALES REMAIN IN THE RAW-MATERIAL WAREHOUSE, THEY ARE
CARRIED IN A RAW-MATERIAL ACCOUNT ON APPELLANT'S BOOKS; BUT UPON THEIR
REMOVAL FROM SUCH WAREHOUSE THE BALES ARE IMMEDIATELY CHARGED TO GOODS
IN-PROCESS ACCOUNT WHETHER THE BALES HAVE BEEN BROKEN OR NOT."  HOOVEN
& ALLISON CO. V. EVATT, 142 OHIO ST. 235, 237, 51 N.E.2D 723, 724. 

AS FAR AS APPEARS, THESE BALES OF HEMP WHICH HAD BEEN REMOVED TO THE
FACTORY AS IMMEDIATELY NECESSARY FOR CURRENT NEEDS, BUT WHICH REMAINED
IN THEIR ORIGINAL PACKAGES, WERE NOT SEPARATELY ASSESSED FOR TAXATION,
NOR WERE THEY, AT ANY STAGE OF THE PROCEEDINGS, TREATED AS A SEPARATE
ITEM.  IT IS OBVIOUS, THOUGH HIS LANGUAGE IS SOMEWHAT CLOUDY, THAT WHAT
CHIEF JUSTICE STONE MEANT WAS THAT HE WAS NOT CONSIDERING WHETHER THE
REMOVED HEMP HAD A SPECIAL STATUS.  THEREFORE, ALTHOUGH IT COULD NOT
"BE SAID THAT THE FIBERS WERE SUBJECTED TO MANUFACTURE WHEN THEY WERE
PLACED IN PETITIONER'S WAREHOUSE  ...  " IT WAS "UNNECESSARY TO DECIDE
WHETHER, FOR PURPOSES OF THE CONSTITUTIONAL IMMUNITY, THE PRESENCE OF
SOME FIBERS IN THE FACTORY WAS SO ESSENTIAL TO CURRENT MANUFACTURING
REQUIREMENTS THAT THEY COULD BE SAID TO HAVE ENTERED THE PROCESS OF
MANUFACTURE." 

FN15  SINCE THE COURT DOES NOT RELY ON THE REASONING OF THE OHIO
COURT, I WILL NOT STOP TO EXAMINE CLOSELY ITS GROUND OF DECISION.  IT
IS SUFFICIENT TO NOTE THAT IT IS DIFFICULT TO UNDERSTAND BY WHAT
MUTATION AN IMPORT LOSES ITS STATUS AS AN IMPORT MERELY BY MINGLING IT
WITH IDENTICAL IMPORTED GOODS WHICH ARE SIMILARLY BEING STORED PRIOR TO
USE. 

FN16  THE WISCONSIN COURT FOUND THAT ONE-HALF OF THE IMPORTED GOODS
WAS NECESSARY TO MEET "CURRENT OPERATIONAL NEEDS."  ON THE BASIS OF
THIS FINDING OF "FACT," THIS COURT FINDS ITS NEW INTERPRETATION OF THE
IMPORT CLAUSE SATISFIED.  SINCE THAT INTERPRETATION IS FAR BROADER THAN
THE NARROW CONCEPT OF "CURRENT OPERATIONAL NEED," AS APPLIED BY THE
WISCONSIN COURT, IT IS UNNECESSARY TO DISCUSS THE CONSTITUTIONAL
VALIDITY OF A RULE BASED ON "CURRENT OPERATIONAL NEED."  IT IS
SUFFICIENT TO NOTE HERE THAT SUCH A FORMULA POSSESSES NO BASIS IN
ECONOMICS; IT IS MERELY AN ARBITRARY FIGURE ASSIGNED TO A PORTION OF
INVENTORY.  AN APPROPRIATE ANALYSIS OF THE FORMULAS TENTATIVELY OFFERED
BY THE WISCONSIN CIRCUIT COURT TO SUPPORT ITS FINDING WOULD REVEAL THE
UNREAL AND ARBITRARY NATURE OF THE FINDING.  HOWEVER SUCH DISCUSSION
WOULD BE SUPERFLUOUS HERE. 

FN17  THIS MERELY STATES A LEGAL CONCLUSION.  THE PHYSICAL STATUS OF
THE IMPORTS DID NOT DIFFER IN THE SLIGHTEST FROM THAT OF ANY OTHER
IMPORT THIS COURT HAS HELD TO BE IMMUNE FROM STATE TAXATION.  THEIR
"RELATION" TO THE STATE IS THE QUESTION FOR DECISION. 

FN18  SEE THE PASSAGE QUOTED AT NOTE 5, SUPRA, FROM RICHFIELD OIL
CORP. V. STATE BOARD OF EQUALIZATION, 329 U.S. 69, 75-76.  SEE ALSO
FEDERALIST NO. 32 (LODGE ED. 1908) 186-188 (HAMILTON). 
..END :













WILLIAMS V. OKLAHOMA 358 U.S. 576 


NO. 124.  ARGUED JANUARY 21, 1959 - DECIDED FEBRUARY 24, 1959 - 321 P.2D
990, AFFIRMED. 


WHILE FLEEING FROM POLICE AFTER ROBBING A FILLING STATION, PETITIONER
FORCED HIS WAY AT GUNPOINT INTO THE AUTOMOBILE OF ONE COOKE, FORCED HIM
TO DRIVE FAR INTO THE COUNTRY, THERE SHOT AND KILLED HIM, AND ESCAPED
IN HIS CAR.  CHARGED IN AN OKLAHOMA COURT WITH MURDER, HE ENTERED A
PLEA OF GUILTY AND WAS SENTENCED TO LIFE IMPRISONMENT.  THEREAFTER, HE
WAS CHARGED IN ANOTHER OKLAHOMA COURT WITH THE KIDNAPING INVOLVED IN
THE SAME OCCURRENCE.  WHILE REPRESENTED BY COUNSEL AND AFTER BEING
WARNED BY THE COURT THAT CONVICTION MIGHT RESULT IN A DEATH SENTENCE,
HE PLEADED GUILTY AND WAS CONVICTED.  BEFORE SENTENCING HIM, THE COURT
PERMITTED THE STATE'S ATTORNEY TO MAKE AN UNSWORN STATEMENT IN WHICH HE
RECOUNTED AT LENGTH THE ARMED ROBBERY, THE CHASE, THE ELUSION OF
POLICE, THE GRUESOME DETAILS OF THE KIDNAPING AND MURDER AND
PETITIONER'S PAST CRIMINAL RECORD; AND PETITIONER WAS SENTENCED TO
DEATH ON THE KIDNAPING CHARGE.  UNDER OKLAHOMA LAW, KIDNAPING AND
MURDER ARE SEPARATE AND DISTINCT OFFENSES, AND PETITIONER MADE NO CLAIM
PRIOR TO HIS CONVICTION THAT HE WAS BEING PUT TWICE IN JEOPARDY FOR THE
SAME OFFENSE.  UNDER OKLAHOMA LAW, THE GRANTING OF A PRESENTENCE
HEARING AT WHICH TESTIMONY IS TAKEN IS DISCRETIONARY WITH THE TRIAL
COURT, AND PETITIONER DID NOT REQUEST SUCH A HEARING.  HELD:
PETITIONER WAS NOT DENIED DUE PROCESS OF LAW IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  PP. 577-587. 

(A)  ON THE RECORD, THIS COURT CANNOT SAY THAT PETITIONER WAS
DEPRIVED OF ANY RIGHT OR OF FUNDAMENTAL FAIRNESS BY THE FACT THAT THE
TRIAL COURT DID NOT PURSUE THE PRESENTENCING PROCEDURES PRESCRIBED BY
THE OKLAHOMA STATUTES.  PP. 582-583. 

(B)  THE STATEMENT BY THE STATE'S ATTORNEY OF THE DETAILS OF THE
CRIME AND OF PETITIONER'S CRIMINAL RECORD - ALL ADMITTED BY PETITIONER
TO BE TRUE - DID NOT DEPRIVE PETITIONER OF FUNDAMENTAL FAIRNESS OR OF
ANY RIGHT OF CONFRONTATION OR CROSS-EXAMINATION.  PP. 583-584. 

(C)  ON THE RECORD IN THIS CASE, THIS COURT CANNOT SAY THAT THE
SENTENCING JUDGE WAS NOT ENTITLED TO CONSIDER THE MURDER, ALONG WITH
ALL OTHER CIRCUMSTANCES INVOLVED, IN DETERMINING THE PROPER SENTENCE
FOR THE KIDNAPING.  PP. 584-586. 

(D)  SINCE KIDNAPING AND MURDER ARE SEPARATE AND DISTINCT CRIMES
UNDER OKLAHOMA LAW, THE COURT'S CONSIDERATION OF THE MURDER AS A
CIRCUMSTANCE INVOLVED IN THE KIDNAPING CANNOT BE SAID TO HAVE RESULTED
IN PUNISHING PETITIONER A SECOND TIME FOR THE SAME OFFENSE NOR TO HAVE
DENIED HIM DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  P. 586. 

(E)  THIS COURT CANNOT SAY THAT THE DEATH SENTENCE FOR KIDNAPING,
WHICH WAS WITHIN THE RANGE OF PUNISHMENTS AUTHORIZED FOR THAT CRIME BY
OKLAHOMA LAW, DENIED TO PETITIONER DUE PROCESS OF LAW OR ANY OTHER
CONSTITUTIONAL RIGHT.  PP. 586-587. 

WILLIAMS V. OKLAHOMA. 

CERTIORARI TO THE CRIMINAL COURT OF APPEALS OF OKLAHOMA. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

UPON HIS PLEA OF GUILTY TO A CHARGE OF KIDNAPING IN THE DISTRICT
COURT OF TULSA COUNTY, OKLAHOMA, PETITIONER WAS SENTENCED TO DEATH.  ON
APPEAL, THE CRIMINAL COURT OF APPEALS OF OKLAHOMA AFFIRMED, 321 P.2D
990, AND CERTIORARI WAS SOUGHT ON THE GROUND THAT THE SENTENCE WAS
IMPOSED IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION.  WE GRANTED THE WRIT TO
DETERMINE THAT QUESTION.  357 U.S. 925. 

THE UNDISPUTED FACTS ARE THAT ON JUNE 17, 1956, WITHIN A FEW HOURS
AFTER ROBBING A FILLING STATION ATTENDANT IN TULSA, OKLAHOMA, AND
ELUDING POLICE IN AN ENSUING CHASE, PETITIONER FORCED HIS WAY INTO AN
AUTOMOBILE BEING DRIVEN BY ONE TOMMY COOKE, A YOUNG DIVINITY STUDENT,
AS IT STOPPED FOR A TRAFFIC LIGHT IN THAT CITY, AND, AT GUNPOINT,
FORCED COOKE TO DRIVE BEYOND THE CITY AND COUNTY OF TULSA AND FOR A
CONSIDERABLE DISTANCE THROUGH NORTHEASTERN OKLAHOMA TO A POINT ON A
DEAD-END ROAD IN MUSKOGEE COUNTY WHERE HE SHOT AND KILLED HIM, AND THEN
ESCAPED IN THE CAR.  ON JUNE 19, 1956, PETITIONER WAS APPREHENDED, AND
SOON AFTERWARD HE WAS CHARGED IN THE DISTRICT COURT OF MUSKOGEE COUNTY
WITH MURDERING COOKE IN THAT COUNTY.  ON ARRAIGNMENT, HE ENTERED A PLEA
OF NOT GUILTY, BUT DURING THE COURSE OF HIS TRIAL PETITIONER, ON
NOVEMBER 19, 1956, WITHDREW THAT PLEA AND ENTERED A PLEA OF GUILTY AS
CHARGED.  HE WAS THEREUPON CONVICTED AND SENTENCED TO LIFE IMPRISONMENT
IN THE OKLAHOMA STATE PENITENTIARY.  (FN1) 

THEREAFTER, ON DECEMBER 17, 1956, PETITIONER WAS CHARGED IN THE
DISTRICT COURT OF TULSA COUNTY WITH KIDNAPING COOKE IN THAT COUNTY ON
JUNE 17, 1956, IN VIOLATION OF OKLA. STAT., 1951, TIT. 21, SEC. 745. 
(FN2)  AT HIS ARRAIGNMENT ON DECEMBER 19, 1956, PETITIONER ENTERED A
PLEA OF NOT GUILTY, BUT ON JANUARY 30, 1957, A FEW DAYS BEFORE THE
SCHEDULED DATE OF TRIAL, HE WITHDREW THAT PLEA AND ENTERED A PLEA OF
GUILTY AS CHARGED.  AFTER INTERROGATING PETITIONER TO MAKE SURE THAT HE
HAD ENTERED THE PLEA OF GUILTY VOLUNTARILY AND THAT HE UNDERSTOOD THAT
HE MIGHT BE SENTENCED TO DEATH UPON IT, (FN3) THE COURT ACCEPTED THE
PLEA AND ADJUDGED PETITIONER GUILTY OF THE CRIME OF KIDNAPING COOKE AS
CHARGED.  THEREUPON THE COURT ASKED COUNSEL FOR PETITIONER IF HE WISHED
TO BE HEARD REGARDING THE SENTENCE TO BE IMPOSED, AND COUNSEL REPLIED
THAT HE PREFERRED TO RESERVE HIS STATEMENT UNTIL AFTER THE STATE'S
ATTORNEY HAD SPOKEN.  THE STATE'S ATTORNEY THEN MADE A STATEMENT -
READING MUCH OF IT FROM A PREPARED STATEMENT - RECOUNTING THE ARMED
ROBBERY OF THE FILLING STATION ATTENDANT AND THE FOLLOWING CHASE BY AND
ELUSION OF THE TULSA POLICE; RECITING THE GRUESOME DETAILS OF THE
KIDNAPING OF COOKE IN TULSA COUNTY AND OF HIS MURDER IN MUSKOGEE
COUNTY; STATING PETITIONER'S PAST CRIMINAL RECORD AS SHOWN BY THE FILES
OF THE FEDERAL BUREAU OF INVESTIGATION; (FN4) AND CONCLUDING WITH A
REQUEST FOR A DEATH SENTENCE.  COUNSEL FOR PETITIONER OBJECTED TO ANY
REFERENCE TO THE MURDER ON THE GROUND THAT SENTENCE FOR THAT CRIME HAD
ALREADY BEEN IMPOSED BY THE DISTRICT COURT OF MUSKOGEE COUNTY AND THAT
IT COULD NOT AGAIN LAWFULLY BE CONSIDERED IN IMPOSING SENTENCE ON THE
KIDNAPING CHARGE.  THE COURT, EXPRESSING THE VIEW THAT IT WAS "PROPER
TO ADVISE THE COURT OF ALL THE FACTS (OCCURRING WHILE PETITIONER) HAD
THE VICTIM IN HIS CHARGE AND UNDER HIS CONTROL," OVERRULED THE
OBJECTION.  AFTER THE STATE'S ATTORNEY HAD CONCLUDED, COUNSEL FOR
PETITIONER PUT IN EVIDENCE A TRANSCRIPT OF THE SENTENCING PROCEEDINGS
HAD IN THE DISTRICT COURT OF MUSKOGEE COUNTY IN THE MURDER CASE, AND
MADE AN EXTENDED PLEA FOR A SENTENCE OF LIFE IMPRISONMENT RATHER THAN A
SENTENCE TO DEATH. 

AFTER THUS FULLY HEARING THE PARTIES, THE COURT DEFERRED THE
IMPOSITION OF SENTENCE FOR TWO DAYS.  UPON RECONVENING, THE COURT
CALLED PETITIONER TO THE BAR AND ASKED HIM WHETHER HE WISHED TO MAKE
ANY CORRECTION IN THE STATEMENT THAT HAD BEEN MADE TO THE COURT BY THE
STATE'S ATTORNEY.  PETITIONER ANSWERED THAT HE DID NOT, AND THAT THE
MATTERS RELATED IN THAT STATEMENT WERE TRUE.  (FN5) THEREUPON, THE
COURT SENTENCED PETITIONER TO DEATH, AND IN THE COURSE OF HIS
PRONOUNCEMENT THE JUDGE SAID, AMONG OTHER THINGS, THAT HE HAD
CONSIDERED THE FACTS "WHICH (HAD) BEEN STATED (BY COUNSEL) AND WHICH
(PETITIONER HAD) ADMITTED WERE (INVOLVED IN) THIS CRIME (OF KIDNAPING),
COMMITTED IN TULSA COUNTY, WHICH RESULTED IN THE MURDER OF THE VICTIM,
(ALL OF) WHICH THE COURT TAKES INTO CONSIDERATION  ...  AS A CONTINUING
THING." 

AS STATED, PETITIONER'S BROAD CLAIM IS THAT THESE PROCEEDINGS SHOW
THAT THE DEATH SENTENCE WAS DETERMINED AND IMPOSED IN VIOLATION OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IN SUPPORT OF THAT
POSITION HE MAKES, AND VARIOUSLY REPEATS, A NUMBER OF ARGUMENTS WHICH
UPON ANALYSIS COME DOWN TO THREE CONTENTIONS:  FIRST, THAT THE TRIAL
COURT VIOLATED THE PRESENTENCE PROCEDURE PRESCRIBED BY OKLA. STAT.,
1951, TIT. 22, SECS. 973, 974 AND 975, IN PERMITTING THE STATE'S
ATTORNEY TO MAKE AN UNSWORN STATEMENT TO THE COURT OF THE DETAILS OF
THE CRIME AND OF PETITIONER'S CRIMINAL RECORD, AND THAT THIS ALSO
DENIED TO HIM THE RIGHTS OF CONFRONTATION AND CROSS-EXAMINATION;
SECOND, THAT THE COURT IN TAKING THE MURDER INTO CONSIDERATION IN
IMPOSING SENTENCE ON THE KIDNAPING CHARGE PUNISHED HIM A SECOND TIME
FOR THE SAME OFFENSE; AND, THIRD, THAT IN ANY EVENT THE SENTENCE TO
DEATH FOR KIDNAPING WAS "DISPROPORTIONATE" TO THAT CRIME AND TO THE
LIFE SENTENCE THAT HAD EARLIER BEEN IMPOSED UPON HIM FOR THE "ULTIMATE"
CRIME OF MURDER. 

PETITIONER'S CONTENTIONS THAT THE TRIAL COURT DEPRIVED HIM OF HIS
LEGAL RIGHTS AND OF FUNDAMENTAL FAIRNESS IN FAILING TO PURSUE THE
FORMAL PRESENTENCE PROCEDURES PRESCRIBED BY OKLA. STAT., 1951, TIT. 22,
SECS. 973, 974 AND 975, AND IN PERMITTING THE STATE'S ATTORNEY TO MAKE
AN UNSWORN STATEMENT TO THE COURT OF THE DETAILS OF THE CRIME AND OF
PETITIONER'S CRIMINAL RECORD WERE ALSO MADE BY PETITIONER IN THE
CRIMINAL COURT OF APPEALS OF OKLAHOMA.  THAT COURT REJECTED THOSE
CONTENTIONS.  SECTIONS 973-975 PROVIDE IN SUBSTANCE THAT AFTER A PLEA
OR VERDICT OF GUILTY IN A CASE WHERE THE EXTENT OF THE PUNISHMENT IS
LEFT WITH THE COURT, THE COURT, UPON THE SUGGESTION OF EITHER PARTY
THAT THERE ARE CIRCUMSTANCES WHICH MAY BE PROPERLY TAKEN INTO VIEW,
EITHER IN AGGRAVATION OR MITIGATION OF THE PUNISHMENT, MAY, IN ITS
DISCRETION, HOLD A FORMAL HEARING AND TAKE EVIDENCE THEREON.  (FN6) THE
OKLAHOMA COURT HELD THAT WHETHER THOSE PROCEDURES SHALL BE USED IS
DISCRETIONARY WITH THE TRIAL COURT, AND THAT, AT ALL EVENTS, PETITIONER
WAIVED THEIR USE BY FAILING TO REQUEST A HEARING UNDER THOSE STATUTES. 
IN CONSTRUING THOSE STATUTES IT SAID:  "BUT, TWO THINGS ARE CLEAR UNDER
THE PROVISIONS OF SEC. 973.  FIRST, PURSUING THIS METHOD OF PROCEDURE
IS A MATTER OF THE TRIAL COURT'S SOUND DISCRETION.  SECOND, ITS USE IS
FURTHER CONTINGENT UPON THE REQUEST OF EITHER THE STATE OR THE
DEFENDANT."  IT FURTHER SAID:  "IT IS CONTENDED THAT UNDER THE
PROVISIONS OF SEC. 975 IT IS THE MANDATORY DUTY OF THE COURT TO HEAR
WITNESSES.  BUT, IN CONSTRUING SECS. 974 AND 975 IN LIGHT OF THE
PROVISIONS OF SEC. 973, WE ARE OF THE OPINION THAT BOTH THE PROVISIONS
OF SEC. 974 AND SEC. 975 ARE CONTINGENT UPON THE REQUEST FOR EVIDENCE
UNDER THE PROVISIONS OF SEC. 973, (AND THAT) WHEN THE PARTIES FAIL TO
MAKE A REQUEST FOR THE PRIVILEGE THEREOF, THE SAME IS WAIVED AND SOME
OTHER METHOD OF SUPPLYING THE COURT WITH THE NECESSARY INFORMATION FOR
THE PRONOUNCEMENT OF JUDGMENT AND SENTENCE MAY BE SUBSTITUTED
INSTEAD."  THIS CONSTRUCTION OF THE STATE'S STATUTES BY ITS COURT OF
LAST RESORT MUST BE ACCEPTED HERE. 

IT IS NOT CONTENDED THAT PETITIONER REQUESTED OR SUGGESTED THAT THE
TRIAL COURT HEAR EVIDENCE IN MITIGATION OF THE SENTENCE.  NOR DID
PETITIONER REQUEST OR SUGGEST THAT THE COURT REQUIRE THE STATE TO OFFER
EVIDENCE IN SUPPORT OF THE AGGRAVATING CIRCUMSTANCES.  IN THESE
CIRCUMSTANCES, WE CANNOT SAY THAT PETITIONER WAS DEPRIVED OF ANY RIGHT
OR OF FUNDAMENTAL FAIRNESS BY THE FACT THAT THE TRIAL COURT DID NOT
PURSUE THE PRESENTENCING PROCEDURES PRESCRIBED BY THE OKLAHOMA
STATUTES. 

NOR DID THE STATE'S ATTORNEY'S STATEMENT OF THE DETAILS OF THE CRIME
AND OF PETITIONER'S CRIMINAL RECORD DEPRIVE PETITIONER OF FUNDAMENTAL
FAIRNESS OR OF ANY RIGHT OF CONFRONTATION OR CROSS-EXAMINATION.  AS WE
HAVE SEEN, THE COURT OF CRIMINAL APPEALS OF OKLAHOMA HELD IN THIS CASE
THAT WHEN PETITIONER FAILED TO REQUEST THE PRIVILEGE OF ADDUCING
EVIDENCE IN MITIGATION OF THE CRIME, AND THEREBY WAIVED THE PRESENTENCE
PROCEDURES PRESCRIBED BY SECS. 973-975, THE LAW OF OKLAHOMA AUTHORIZED
"SOME OTHER METHOD OF SUPPLYING THE COURT WITH THE NECESSARY
INFORMATION FOR THE PRONOUNCEMENT OF JUDGMENT AND SENTENCE TO BE
SUBSTITUTED INSTEAD," AND IT HELD THAT THE STATE'S ATTORNEY'S STATEMENT
WAS A PROPER METHOD IN THESE CIRCUMSTANCES UNDER THE LAW OF OKLAHOMA. 
MOREOVER, AFTER THE STATE'S ATTORNEY HAD MADE HIS STATEMENT,
PETITIONER, UPON INTERROGATION BY THE COURT, STATED THAT THE RECITALS
OF THAT STATEMENT WERE TRUE.  SEE NOTE 5.  THIS ALONE SHOULD BE A
COMPLETE ANSWER TO THE CONTENTION.  BUT WE GO ON TO CONSIDER THIS
COURT'S OPINION IN WILLIAMS V. NEW YORK, 337 U.S. 241.  THIS COURT
THERE DEALT WITH VERY SIMILAR CONTENTIONS AND HELD THAT, ONCE THE GUILT
OF THE ACCUSED HAS BEEN PROPERLY ESTABLISHED, THE SENTENCING JUDGE, IN
DETERMINING THE KIND AND EXTENT OF PUNISHMENT TO BE IMPOSED, IS NOT
RESTRICTED TO EVIDENCE DERIVED FROM THE EXAMINATION AND CROSS
EXAMINATION OF WITNESSES IN OPEN COURT BUT MAY, CONSISTENTLY WITH THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, CONSIDER RESPONSIBLE
UNSWORN OR "OUT-OF-COURT" INFORMATION RELATIVE TO THE CIRCUMSTANCES OF
THE CRIME AND TO THE CONVICTED PERSON'S LIFE AND CHARACTERISTICS. 

THESE CONSIDERATIONS MAKE IT CLEAR THAT THE STATE'S ATTORNEY'S
STATEMENT OF THE DETAILS OF THE CRIME AND OF PETITIONER'S CRIMINAL
RECORD - ALL ADMITTED BY PETITIONER TO BE TRUE - DID NOT DEPRIVE
PETITIONER OF FUNDAMENTAL FAIRNESS OR OF ANY RIGHT OF CONFRONTATION OR
CROSS-EXAMINATION. 

WE COME NOW TO PETITIONER'S CONTENTION THAT THE COURT IN TAKING THE
MURDER INTO CONSIDERATION IN IMPOSING SENTENCE ON THE KIDNAPING CHARGE
PUNISHED HIM A SECOND TIME FOR THE SAME OFFENSE.  BUT MURDER AND
KIDNAPING ARE NOT THE SAME OFFENSE IN OKLAHOMA.  THE OKLAHOMA STATUTES
SEPARATELY CREATE AND DEFINE THE CRIMES OF MURDER (FN7) AND OF
KIDNAPING, (FN8) AND IT IS EVIDENT FROM THEIR TERMS THAT, AS HELD BY
THE OKLAHOMA COURT IN THIS CASE, THEY CREATE "SEPARATE AND DISTINCT
OFFENSES."  IT IS NOT CONTENDED THAT THE CHARGE OF MURDER TO WHICH
PETITIONER PLEADED GUILTY AND WAS SENTENCED IN MUSKOGEE COUNTY MADE ANY
REFERENCE TO THE CRIME OF KIDNAPING, AND THE CHARGE INVOLVED IN THIS
CASE MADE NO REFERENCE TO THE MURDER BUT WAS SUBSTANTIALLY IN THE
LANGUAGE OF THE KIDNAPING STATUTE.  SEE NOTE 2.  PETITIONER DID NOT
OBJECT TO THE CHARGE IN THE TRIAL COURT ON DOUBLE JEOPARDY OR DOUBLE
PUNISHMENT GROUNDS AS THE OKLAHOMA COURTS HAVE HELD TO BE NECESSARY TO
PRESERVE SUCH A POINT, (FN9) BUT INSTEAD HE ENTERED A PLEA OF GUILTY TO
THE CHARGE.  UPON THAT PLEA IT BECAME THE DUTY OF THE TRIAL JUDGE TO
IMPOSE AN APPROPRIATE SENTENCE.  THE STATUTE MADE APPROPRIATE, AND
REQUIRED THE IMPOSITION OF, A SENTENCE WITHIN THE RANGE OF IMPRISONMENT
FOR A TERM OF 10 YEARS TO THE MAXIMUM OF DEATH (SEE NOTE 2), AS
DETERMINED BY THE SENTENCING JUDGE IN THE EXERCISE OF HIS SOUND
DISCRETION.  NECESSARILY, THE EXERCISE OF A SOUND DISCRETION IN SUCH A
CASE REQUIRED CONSIDERATION OF ALL THE CIRCUMSTANCES OF THE CRIME, FOR
"THE BELIEF NO LONGER PREVAILS THAT EVERY OFFENSE IN A LIKE LEGAL
CATEGORY CALLS FOR AN IDENTICAL PUNISHMENT  ...  ."  WILLIAMS V. NEW
YORK, SUPRA, AT 247.  IN DISCHARGING HIS DUTY OF IMPOSING A PROPER
SENTENCE, THE SENTENCING JUDGE IS AUTHORIZED, IF NOT REQUIRED, TO
CONSIDER ALL OF THE MITIGATING AND AGGRAVATING CIRCUMSTANCES INVOLVED
IN THE CRIME.  THE OKLAHOMA COURT HAS SO DECLARED IN THIS CASE AND IN
POWELL V. STATE, 94 OKLA. CRIM. 1, 229 P.2D 230.  THIS COURT, TOO, HAS
SO HELD.  WILLIAMS V. NEW YORK, SUPRA.  CERTAINLY ONE OF THE
AGGRAVATING CIRCUMSTANCES INVOLVED IN THIS KIDNAPING CRIME WAS THE FACT
THAT PETITIONER SHOT AND KILLED THE VICTIM IN THE COURSE OF ITS
COMMISSION.  WE CANNOT SAY THAT THE SENTENCING JUDGE WAS NOT ENTITLED
TO CONSIDER THAT CIRCUMSTANCE, ALONG WITH ALL THE OTHER CIRCUMSTANCES
INVOLVED, IN DETERMINING THE PROPER SENTENCE TO BE IMPOSED FOR THE
KIDNAPING CRIME.  AND IN VIEW OF THE OBVIOUS FACT THAT, UNDER THE LAW
OF OKLAHOMA, KIDNAPING IS A SEPARATE CRIME, ENTIRELY DISTINCT FROM THE
CRIME OF MURDER, THE COURT'S CONSIDERATION OF THE MURDER AS A
CIRCUMSTANCE INVOLVED IN THE KIDNAPING CRIME CANNOT BE SAID TO HAVE
RESULTED IN PUNISHING PETITIONER A SECOND TIME FOR THE SAME OFFENSE,
NOR TO HAVE DENIED TO HIM DUE PROCESS OF LAW IN VIOLATION OF THE
FOURTEENTH AMENDMENT. 

PETITIONER'S FURTHER CLAIM THAT THE SENTENCE TO DEATH FOR KIDNAPING
WAS "DISPROPORTIONATE" TO THAT CRIME AND TO THE LIFE SENTENCE THAT HAD
EARLIER BEEN IMPOSED UPON HIM FOR THE "ULTIMATE" CRIME OF MURDER
PROCEEDS ON THE BASIS THAT THE SENTENCE FOR KIDNAPING WAS EXCESSIVE,
THAT THE MURDER WAS THE GREATER OFFENSE, AND THAT THE SENTENCE FOR THE
LESSER CRIME OF KIDNAPING OUGHT NOT, IN CONSCIENCE AND WITH DUE REGARD
FOR FUNDAMENTAL FAIRNESS, EXCEED THE LIFE SENTENCE THAT WAS IMPOSED IN
ANOTHER JURISDICTION FOR THE MURDER.  BUT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT DOES NOT, NOR DOES ANYTHING IN THE CONSTITUTION,
REQUIRE A STATE TO FIX OR IMPOSE ANY PARTICULAR PENALTY FOR ANY CRIME
IT MAY DEFINE OR TO IMPOSE THE SAME OR "PROPORTIONATE" SENTENCES FOR
SEPARATE AND INDEPENDENT CRIMES.  THEREFORE WE CANNOT SAY THAT THE
SENTENCE TO DEATH FOR THE KIDNAPING, WHICH WAS WITHIN THE RANGE OF
PUNISHMENTS AUTHORIZED FOR THAT CRIME BY THE LAW OF THE STATE, DENIED
TO PETITIONER DUE PROCESS OF LAW OR ANY OTHER CONSTITUTIONAL RIGHT. 
NOR, IN VIEW OF THE FACT THAT KIDNAPING AND MURDER ARE SEPARATE AND
INDEPENDENT OFFENSES IN OKLAHOMA, IS THERE ANY MERIT IN PETITIONER'S
COLLATERAL CLAIM THAT WHAT HE CALLS "THE LESSER CRIME" OF KIDNAPING
"MERGED" IN WHAT HE CALLS "THE GREATER CRIME" OF MURDER AND THAT THE
SENTENCE TO LIFE IMPRISONMENT FOR THE MURDER WAS A BAR TO THE
IMPOSITION OF ANY SENTENCE FOR THE KIDNAPING, OR AT LEAST TO ANY
GREATER SENTENCE THAN WAS IMPOSED FOR THE MURDER, AND THAT IMPOSITION
OF A DEATH SENTENCE FOR THE KIDNAPING DEPRIVED HIM OF DUE PROCESS IN
VIOLATION OF THE FOURTEENTH AMENDMENT. 

WE HAVE NOW TREATED WITH ALL OF PETITIONER'S CLAIMS, AND FAILING TO
FIND ANY DEPRIVATION BY THE OKLAHOMA COURTS OF ANY OF HIS FUNDAMENTAL
RIGHTS, WE MUST HOLD THAT PETITIONER WAS NOT DENIED DUE PROCESS OF
LAW.  AFFIRMED. 

FN1  OKLA. STAT., 1951, TIT. 21, SEC. 707, PROVIDES, IN PERTINENT
PART:  "EVERY PERSON CONVICTED OF MURDER SHALL SUFFER DEATH, OR
IMPRISONMENT AT HARD LABOR IN THE STATE PENITENTIARY FOR LIFE, AT THE
DISCRETION OF THE JURY, (BUT) UPON A PLEA OF GUILTY THE COURT SHALL
DETERMINE THE (PUNISHMENT)." 

FN2  OKLA. STAT., 1951, TIT. 21, SEC. 745, PROVIDES, IN PERTINENT
PART, THAT "EVERY PERSON WHO, WITHOUT LAWFUL AUTHORITY, FORCIBLY SEIZES
AND CONFINES ANOTHER, OR INVEIGLES OR KIDNAPS ANOTHER, FOR THE PURPOSE
OF EXTORTING ANY MONEY, PROPERTY OR THING OF VALUE OR ADVANTAGE FROM
THE PERSON SO SEIZED  ...  , OR IN ANY MANNER THREATENS (THE PERSON SO
SEIZED) SHALL BE GUILTY OF A FELONY, AND UPON CONVICTION SHALL SUFFER
DEATH OR IMPRISONMENT IN THE PENITENTIARY, NOT LESS THAN TEN YEARS." 

FN3  THE COURT'S INTERROGATION AND PETITIONER'S ANSWERS WERE AS
FOLLOWS: 

"THE COURT:  THE COURT IS ADVISED BY THE ASSISTANT COUNTY ATTORNEY
AND ALSO BY YOUR COUNSEL, THAT AT THIS TIME YOU WISH TO WITHDRAW YOUR
PLEA OF NOT GUILTY, WHICH HAS HERETOFORE BEEN ENTERED IN THIS CASE,
WHEREIN YOU ARE CHARGED WITH THE CRIME OF KIDNAPPING, AND ENTER A PLEA
OF GUILTY TO THIS CHARGE. 

"MR. WILLIAMS:  YES, SIR. 

"THE COURT:  - IS THAT CORRECT? 

"MR. WILLIAMS:  YES, SIR. 

"THE COURT:  NOW, YOU UNDERSTAND THE NATURE OF THIS CHARGE, DO YOU? 

"MR. WILLIAMS:  THAT'S RIGHT. 

"THE COURT:  YOU UNDERSTAND, THAT IT IS A CHARGE THAT IS PUNISHABLE
WITH THE EXTREME PENALTY OF LIFE IMPRISONMENT, OR DEATH IN THE ELECTRIC
CHAIR? 

"MR. WILLIAMS:  YES, SIR. 

"THE COURT:  IN THE LIGHT OF THAT KNOWLEDGE AND INFORMATION AND
UNDERSTANDING, ARE YOU ENTERING THIS PLEA FREELY AND VOLUNTARILY UPON
YOUR PART? 

"MR. WILLIAMS:  YES, SIR. 

"THE COURT:  HAS THERE BEEN ANY REPRESENTATION MADE TO YOU BY
COUNSEL, OR BY ANYONE ELSE, AS TO THE SENTENCE WHICH YOU MIGHT EXPECT
FROM THE COURT IN THIS CASE? 

"MR. WILLIAMS:  I WAS TOLD I COULD EXPECT THE MAXIMUM. 

"THE COURT:  OF DEATH IN THE ELECTRIC CHAIR? 

"MR. WILLIAMS:  YES, SIR. 

THE COURT:  IN THE LIGHT OF THAT REPRESENTATION MADE TO YOU BY YOUR
COUNSEL, YOU WISH TO WITHDRAW YOUR PLEA OF NOT GUILTY AND ENTER A PLEA
OF GUILTY TO THE CHARGE? 

"MR. WILLIAMS:  YES, SIR." 

FN4  AS RECITED BY THE STATE'S ATTORNEY, THE FBI FILES DISCLOSED THE
COMMISSION OF FIVE CRIMES BY PETITIONER, CONSISTING OF GRAND THEFT IN
1944, AT THE AGE OF 14, RESULTING IN HIS RELEASE TO A JUVENILE BUREAU;
A DYER ACT VIOLATION IN 1945, RESULTING IN A THREE-YEAR SENTENCE TO THE
FEDERAL JUVENILE CORRECTIONAL INSTITUTION AT ENGLEWOOD, COLORADO;
ESCAPE FROM ENGLEWOOD AND A DYER ACT VIOLATION IN 1947, RESULTING IN A
SENTENCE FOR A TERM OF 18 MONTHS; AND ARMED ROBBERY IN 1949, RESULTING
IN A SENTENCE FOR A TERM OF 12 YEARS IN THE INDIANA STATE
PENITENTIARY. 

FN5  THE COURT'S QUESTIONS AND PETITIONER'S ANSWERS WERE AS FOLLOWS: 

"THE COURT:  NOW, AT THAT TIME ON WEDNESDAY, THERE WAS A STATEMENT OF
FACTS MADE BY THE STATE, RELATIVE TO THIS CASE, AND THE SEQUENCE OF
EVENTS AND THE FACTS SURROUNDING THE SEQUENCE OF EVENTS AND THE FACTS
SURROUNDING THE COMMISSION OF THIS CRIME.  DO YOU HAVE ANY CORRECTION
TO MAKE IN REFERENCE TO THE STATEMENT OF COUNSEL FOR THE STATE, IN THAT
REGARD? 

"MR. WILLIAMS:  NO, SIR. 

"THE COURT:  THOSE FACTS WERE TRUE? 

"MR. WILLIAMS:  YES, SIR. 

"THE COURT:  AND YOU AT THIS TIME ADMIT THAT THEY WERE TRUE AND THAT
YOU COMMITTED THE ACTS AS SET FORTH BY THE STATE, THAT IS CORRECT, IS
IT? 

"MR. WILLIAMS:  YES, SIR. 

"THE COURT (ADDRESSING COUNSEL FOR PETITIONER):  ALL RIGHT.  DO YOU
HAVE ANYTHING FURTHER TO SAY ON BEHALF OF THIS DEFENDANT? 

"(COUNSEL FOR PETITIONER):  NOTHING FURTHER." 

FN6  SECTIONS 973, 974 AND 975, OKLA. STAT., 1951, TIT. 22, PROVIDE: 

SEC. 973.  "AFTER A PLEA OR VERDICT OF GUILTY IN A CASE WHERE THE
EXTENT OF THE PUNISHMENT IS LEFT WITH THE COURT, THE COURT, UPON THE
SUGGESTION OF EITHER PARTY THAT THERE ARE CIRCUMSTANCES WHICH MAY BE
PROPERLY TAKEN INTO VIEW, EITHER IN AGGRAVATION OR MITIGATION OF THE
PUNISHMENT, MAY IN ITS DISCRETION HEAR THE SAME SUMMARILY AT A
SPECIFIED TIME AND UPON SUCH NOTICE TO THE ADVERSE PARTY AS IT MAY
DIRECT." 

SEC. 974.  "THE CIRCUMSTANCES MUST BE PRESENTED BY THE TESTIMONY OF
WITNESSES EXAMINED IN OPEN COURT  ...  ." 

SEC. 975.  "NO AFFIDAVIT OR TESTIMONY, OR REPRESENTATION OF ANY KIND,
VERBAL OR WRITTEN, CAN BE OFFERED TO OR RECEIVED BY THE COURT OR MEMBER
THEREOF IN AGGRAVATION OR MITIGATION OF THE PUNISHMENT, EXCEPT AS
PROVIDED IN THE LAST TWO SECTIONS." 

FN7  OKLA. STAT., 1951, TIT. 21, SEC. 701, PROVIDES: 

"HOMICIDE IS MURDER IN THE FOLLOWING CASES. 

"1.  WHEN PERPETRATED WITHOUT AUTHORITY OF LAW, AND WITH A
PREMEDITATED DESIGN TO EFFECT THE DEATH OF THE PERSON KILLED, OR OF ANY
OTHER HUMAN BEING. 

"2.  WHEN PERPETRATED BY ANY ACT IMMINENTLY DANGEROUS TO OTHERS AND
EVINCING A DEPRAVED MIND, REGARDLESS OF HUMAN LIFE, ALTHOUGH WITHOUT
ANY PREMEDITATED DESIGN TO EFFECT THE DEATH OF ANY PARTICULAR
INDIVIDUAL. 

"3.  WHEN PERPETRATED WITHOUT ANY DESIGN TO EFFECT DEATH BY A PERSON
ENGAGED IN THE COMMISSION OF ANY FELONY." 

FN8  SEE NOTE 2. 

FN9  COLLINS V. STATE, 70 OKLA. CRIM. 340, 106 P.2D 273; MOWELS V.
STATE, 52 OKLA.  CRIM. 193, 11 P.2D 205; EX PARTE ZELIGSON, 47 OKLA.
CRIM. 45, 287 P. 731; FINES V. STATE, 32 OKLA. CRIM. 304, 240 P. 1079;
WHITE V. STATE, 23 OKLA. CRIM. 198, 214 P. 202. 

MR. JUSTICE DOUGLAS, BEING OF THE VIEW THAT PETITIONER WAS IN
SUBSTANCE TRIED FOR MURDER TWICE IN VIOLATION OF THE GUARANTEE AGAINST
DOUBLE JEOPARDY, DISSENTS. 
..END :













THE TUNGUS V. SKOVGAARD 358 U.S. 588 


NO. 43.  ARGUED OCTOBER 23, 1958.  - DECIDED FEBRUARY 24, 1959.  - 252
F.2D 14, AFFIRMED. 


WHILE OIL WAS BEING UNLOADED FROM A SHIP IN A NEW JERSEY PORT BY AN
INDEPENDENT CONTRACTOR ENGAGED BY THE CONSIGNEE, ONE OF THE
CONTRACTOR'S EMPLOYEES WENT ABOARD TO REPAIR A PUMP FURNISHED BY THE
CONTRACTOR, AND HE SLIPPED ON SPILLED OIL AND FELL TO HIS DEATH.  HIS
WIDOW AND ADMINISTRATRIX BROUGHT SUIT IN ADMIRALTY AGAINST THE SHIP AND
ITS OWNERS TO RECOVER DAMAGES FOR HIS DEATH, ALLEGING UNSEAWORTHINESS
OF THE VESSEL AND NEGLIGENT FAILURE TO PROVIDE THE DECEDENT WITH A
REASONABLY SAFE PLACE TO WORK.  THE DISTRICT COURT DISMISSED THE SUIT;
BUT THE COURT OF APPEALS SET ASIDE THAT JUDGMENT AND REMANDED THE CASE
FOR FURTHER PROCEEDINGS.  HELD: 

1.  SINCE THE DECEDENT WAS NOT A SEAMAN AND HIS DEATH DID NOT OCCUR
ON THE HIGH SEAS, THERE IS NO APPLICABLE FEDERAL STATUTE, AND THE RIGHT
OF RECOVERY DEPENDED ENTIRELY ON THE NEW JERSEY WRONGFUL DEATH ACT,
WHICH MAY BE APPLIED BY A COURT OF ADMIRALTY.  PP. 590-591. 

2.  WHEN ADMIRALTY ADOPTS A STATE'S RIGHT OF ACTION FOR WRONGFUL
DEATH, IT MUST ENFORCE THAT RIGHT AS AN INTEGRATED WHOLE, WITH WHATEVER
CONDITIONS AND LIMITATIONS THE CREATING STATE HAS ATTACHED.  PP. 591
594. 

3.  THE NEW JERSEY WRONGFUL DEATH ACT EMBRACES A CLAIM FOR DEATH
NEGLIGENTLY CAUSED, AND THE LAW IMPOSED ON THE SHIP AND ITS OWNERS A
DUTY TO EXERCISE ORDINARY CARE TO PROVIDE THE DECEDENT WITH A
REASONABLY SAFE PLACE TO CARRY ON HIS WORK OF REPAIRING THE PUMP.  P.
594. 

4.  IN THE CIRCUMSTANCES OF THIS CASE, THIS COURT WILL NOT DISTURB
THE CONCLUSION REACHED BY A MAJORITY OF THE COURT OF APPEALS, SITTING
EN BANC, THAT A CLAIM FOR UNSEAWORTHINESS IS ENCOMPASSED BY THE NEW
JERSEY WRONGFUL DEATH ACT AS A MATTER OF STATE LAW, NOTWITHSTANDING THE
FACT THAT THE NEW JERSEY COURTS HAVE NOT PASSED ON THE QUESTION.  PP.
595-596. 

5.  DECEDENT WAS WITHIN THE CLASS PROTECTED BY THE WARRANTY OF
SEAWORTHINESS AS DEVELOPED BY FEDERAL MARITIME LAW.  POPE & TALBOT,
INC., V. HAWN, 346 U.S. 406.  P. 595, N. 9. 

THE TUNGUS ET AL. V. SKOVGAARD, ADMINISTRATRIX, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON THE EVENING OF DECEMBER 5, 1952, THE MOTOR VESSEL TUNGUS DOCKED AT
BAYONNE, NEW JERSEY, WITH A CARGO OF COCONUT OIL IN ITS DEEP TANKS.  EL
DORADO OIL WORKS HAD BEEN ENGAGED BY THE CONSIGNEE TO HANDLE THE
DISCHARGE OF THIS CARGO, AND FOR THE NEXT SEVERAL HOURS THE WORK OF
PUMPING THE OIL ASHORE WAS CARRIED ON BY EL DORADO EMPLOYEES, USING A
PUMP AND HOSES FURNISHED BY THEIR EMPLOYER.  TWO OFFICERS AND TWO CREW
MEMBERS OF THE TUNGUS REMAINED ABOARD, THE LATTER SPECIFICALLY ASSIGNED
TO ASSIST IN THE DISCHARGE OPERATIONS.  SHORTLY AFTER MIDNIGHT THE PUMP
BECAME DEFECTIVE, RESULTING IN THE SPILLAGE OF A LARGE QUANTITY OF OIL
OVER THE ADJACENT DECK AREA.  THE PUMP WAS STOPPED AND THE OIL CLEANED
FROM ITS IMMEDIATE VICINITY.  EFFORTS TO RESTORE THE PUMP TO NORMAL
OPERATION WERE UNSUCCESSFUL, AND CARL SKOVGAARD, AN EL DORADO
MAINTENANCE FOREMAN, WAS THEREFORE SUMMONED FROM HIS HOME TO ASSIST IN
THE REPAIR WORK.  AFTER ARRIVING ON BOARD HE WALKED THROUGH AN AREA
FROM WHICH THE OIL HAD NOT BEEN REMOVED, AND IN ATTEMPTING TO STEP FROM
THE HATCH BEAMS TO THE TOP OF THE PARTLY UNCOVERED PORT DEEP TANK, HE
SLIPPED AND FELL TO HIS DEATH IN EIGHT FEET OF HOT COCONUT OIL. 

HIS WIDOW AND ADMINISTRATRIX, THE RESPONDENT HERE, COMMENCED THIS
SUIT IN ADMIRALTY AGAINST THE SHIP AND ITS OWNERS TO RECOVER DAMAGES
FOR HIS DEATH, ALLEGING UNSEAWORTHINESS OF THE VESSEL AND A NEGLIGENT
FAILURE TO PROVIDE THE DECEDENT WITH A REASONABLY SAFE PLACE TO WORK. 
(FN1)  THE DISTRICT COURT DISMISSED THE LIBEL, HOLDING THAT A WRONGFUL
DEATH ACTION FOR UNSEAWORTHINESS WOULD NOT LIE, AND THAT THE
PETITIONERS OWED NO DUTY OF EXERCISING ORDINARY CARE TO PROVIDE THE
DECEDENT A SAFE PLACE TO WORK.  141 F. SUPP. 653.  THE COURT OF APPEALS
SET ASIDE THIS DECREE AND REMANDED THE CASE FOR FURTHER PROCEEDINGS, A
DIVIDED EN BANC COURT DECIDING THAT THE NEW JERSEY WRONGFUL DEATH ACT
EMBRACES A CLAIM FOR UNSEAWORTHINESS, AND ALSO THAT THE DISTRICT COURT
HAD ERRED WITH RESPECT TO THE SCOPE OF THE PETITIONERS' DUTY TO
EXERCISE REASONABLE CARE FOR THE DECEDENT'S SAFETY.  252 F.2D 14.  THE
COURT DID NOT DECIDE "WHAT DEFENSES, IF ANY, MIGHT BE AVAILABLE,"
LEAVING THAT QUESTION FOR THE DISTRICT COURT TO DETERMINE.  CERTIORARI
WAS GRANTED PRIMARILY TO CONSIDER THE RELATIONSHIP OF MARITIME AND
LOCAL LAW IN CASES OF THIS KIND.  357 U.S. 903. 

WE BEGIN AS DID THE COURT OF APPEALS WITH THE ESTABLISHED PRINCIPLE
OF MARITIME LAW THAT IN THE ABSENCE OF A STATUTE THERE IS NO ACTION FOR
WRONGFUL DEATH.  THE HARRISBURG, 119 U.S. 199.  ALTHOUGH CONGRESS HAS
ENACTED LEGISLATION, NOTABLY THE JONES ACT (FN2) AND THE DEATH ON THE
HIGH SEAS ACT, (FN3) PROVIDING FOR WRONGFUL DEATH ACTIONS IN A LIMITED
NUMBER OF SITUATIONS, (FN4) NO FEDERAL STATUTE IS APPLICABLE TO THE
PRESENT CASE; SKOVGAARD WAS NOT A SEAMAN, (FN5) AND HIS DEATH OCCURRED
UPON THE TERRITORIAL WATERS OF NEW JERSEY.  (FN6)  THE RESPONDENT'S
RIGHTS IN THIS SUIT DEPENDED ENTIRELY, THEREFORE, UPON THE NEW JERSEY
WRONGFUL DEATH STATUTE, AND THE LONG-SETTLED DOCTRINE 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. 

THE PRIMARY ISSUE IN THIS CASE, THEREFORE, AS THE COURT OF APPEALS
UNANIMOUSLY SAW IT, WAS WHETHER THE NEW JERSEY STATUTE GIVING A RIGHT
OF ACTION WHERE DEATH IS CAUSED "BY A WRONGFUL ACT, NEGLECT OR DEFAULT"
IS BROAD ENOUGH TO ENCOMPASS AN ACTION FOR DEATH CAUSED BY THE
UNSEAWORTHINESS OF A VESSEL.   (FN7)  IT WAS UPON THIS ISSUE -
CONSTRUCTION OF THE STATE STATUTE - THAT THE COURT DIVIDED. 

THE RESPONDENT ASKS US TO UPHOLD THE INTERPRETATION WHICH THE
MAJORITY IN THE COURT OF APPEALS HAS PUT UPON THE NEW JERSEY STATUTE. 
FAILING THAT, A MUCH BROADER ALTERNATIVE ARGUMENT IS ADVANCED - THAT A
COURT IN A CASE SUCH AS THIS MAY DISREGARD COMPLETELY THE CONDITIONS
WHICH THE STATE HAS PUT UPON THE RIGHT IT HAS CREATED, AND MAY APPLY
INSTEAD THE FULL CORPUS OF THE MARITIME LAW, FREE OF ANY QUALIFICATIONS
IMPOSED BY THE STATE.  IF DEATH OCCURS UPON NAVIGABLE WATERS WITHIN A
STATE, THE ARGUMENT RUNS, THE LAW SHOULD SEIZE ONLY UPON THE BLUNT FACT
THAT THERE IS SOME KIND OF STATE STATUTE PROVIDING SOME KIND OF A RIGHT
OF ACTION FOR DEATH CAUSED BY SOME KIND OF TORTIOUS CONDUCT.  THAT, IT
IS SAID, IS ENOUGH TO FILL THE "VOID" IN THE MARITIME LAW, WHICH THEN
BECOMES APPLICABLE IN ALL ITS FACETS, WITHOUT FURTHER INQUIRY AS TO
WHAT IT IS THAT THE STATE HAS ACTUALLY ENACTED. 

THIS BROAD ARGUMENT MUST BE REJECTED.  THE DECISIONS OF THIS COURT
LONG AGO ESTABLISHED THAT WHEN ADMIRALTY ADOPTS A STATE'S RIGHT OF
ACTION FOR WRONGFUL DEATH, IT MUST ENFORCE THE RIGHT AS AN INTEGRATED
WHOLE, WITH WHATEVER CONDITIONS AND LIMITATIONS THE CREATING STATE HAS
ATTACHED.  THAT IS WHAT WAS DECIDED IN THE HARRISBURG, WHERE THE
COURT'S LANGUAGE WAS UNMISTAKABLE:  "  ...  IF THE ADMIRALTY ADOPTS THE
STATUTE AS A RULE OF RIGHT TO BE ADMINISTERED WITHIN ITS OWN
JURISDICTION, IT MUST TAKE THE RIGHT SUBJECT TO THE LIMITATIONS WHICH
HAVE BEEN MADE A PART OF ITS EXISTENCE  ...  . 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."  119
U.S. 199, AT 214.  THAT IS THE DOCTRINE WHICH HAS BEEN REITERATED BY
THE COURT THROUGH THE YEARS.  (FN8)  SEE THE HAMILTON, 207 U.S. 398; LA
BOURGOGNE, 210 U.S. 95; WESTERN FUEL CO. V. GARCIA, 257 U.S. 233;
LEVINSON V. DEUPREE, 345 U.S. 648; CF. JUST V. CHAMBERS, 312 U.S. 383. 

"ADMIRALTY COURTS, WHEN INVOKED TO PROTECT RIGHTS ROOTED IN STATE
LAW, ENDEAVOR TO DETERMINE THE ISSUES IN ACCORDANCE WITH THE
SUBSTANTIVE LAW OF THE STATE."  GARRETT V. MOORE-MCCORMACK CO., 317
U.S. 239, 245.  THE POLICY EXPRESSED BY A STATE LEGISLATURE IN ENACTING
A WRONGFUL DEATH STATUTE IS NOT MERELY THAT DEATH SHALL GIVE RISE TO A
RIGHT OF RECOVERY, NOR EVEN THAT TORTIOUS CONDUCT RESULTING IN DEATH
SHALL BE ACTIONABLE, BUT THAT DAMAGES SHALL BE RECOVERABLE WHEN CONDUCT
OF A PARTICULAR KIND RESULTS IN DEATH.  IT IS INCUMBENT UPON A COURT
ENFORCING THAT POLICY TO ENFORCE IT ALL; IT MAY NOT PICK OR CHOOSE. 

IT IS MANIFEST, MOREOVER, THAT ACCEPTANCE OF THE RESPONDENT'S
ARGUMENT WOULD DEFEAT THE INTENT OF CONGRESS TO PRESERVE STATE
SOVEREIGNTY OVER DEATHS CAUSED BY MARITIME TORTS WITHIN THE STATE'S
TERRITORIAL WATERS.  THE LEGISLATIVE HISTORY OF THE DEATH ON THE HIGH
SEAS ACT DISCLOSES A CLEAR CONGRESSIONAL PURPOSE TO LEAVE "UNIMPAIRED
THE RIGHTS UNDER STATE STATUTES AS TO DEATHS ON WATERS WITHIN THE
TERRITORIAL JURISDICTION OF THE STATES."  S. REP. NO. 216, 66TH CONG.,
1ST SESS. 3; H.R. REP. NO. 674, 66TH CONG., 2D SESS.  3.  THE RECORD OF
THE DEBATE IN THE HOUSE OF REPRESENTATIVES PRECEDING PASSAGE OF THE
BILL REFLECTS DEEP CONCERN THAT THE POWER OF THE STATES TO CREATE
ACTIONS FOR WRONGFUL DEATH IN NO WAY BE AFFECTED BY ENACTMENT OF THE
FEDERAL LAW.  59 CONG. REC. 4482-4486. 

THERE IS NO MERIT TO THE CONTENTION THAT APPLICATION OF STATE LAW TO
DETERMINE RIGHTS ARISING FROM DEATH IN STATE TERRITORIAL WATERS IS
DESTRUCTIVE OF THE UNIFORMITY OF FEDERAL MARITIME LAW.  EVEN SOUTHERN
PACIFIC CO. V. JENSEN, WHICH FATHERED THE "UNIFORMITY" CONCEPT,
RECOGNIZED THAT UNIFORMITY IS NOT OFFENDED BY "THE RIGHT GIVEN TO
RECOVER IN DEATH CASES."  244 U.S. 205, AT 216.  IT WOULD BE AN ANOMALY
TO HOLD THAT A STATE MAY CREATE A RIGHT OF ACTION FOR DEATH, BUT THAT
IT MAY NOT DETERMINE THE CIRCUMSTANCES UNDER WHICH THAT RIGHT EXISTS. 
THE POWER OF A STATE TO CREATE SUCH A RIGHT INCLUDES OF NECESSITY THE
POWER TO DETERMINE WHEN RECOVERY SHALL BE PERMITTED AND WHEN IT SHALL
NOT.  CF.  CALDAROLA V. ECKERT, 332 U.S. 155. 

WE HOLD, THEREFORE, THAT THE COURT OF APPEALS WAS CORRECT IN VIEWING
THE BASIC QUESTION BEFORE IT AS ONE OF INTERPRETATION OF THE LAW OF NEW
JERSEY.  IT IS WITHIN THAT FRAME OF REFERENCE THAT WE CONSIDER THE
ISSUES PRESENTED. 

THE NEGLIGENCE CLAIM NEEDS LITTLE DISCUSSION.  OBVIOUSLY THE NEW
JERSEY WRONGFUL DEATH STATUTE EMBRACES A CLAIM FOR DEATH NEGLIGENTLY
CAUSED.  THE MAJORITY IN THE COURT OF APPEALS POINTED OUT THAT THE
OFFICERS AND CREW OF THE TUNGUS REMAINED IN OVER-ALL CONTROL OF THE
VESSEL, AND THAT THEY WERE WELL AWARE OF THE EXISTENCE OF THE OIL SPILL
AND OF THE DANGER CREATED BY IT FOR APPROXIMATELY AN HOUR BEFORE
SKOVGAARD ARRIVED ON BOARD.  UPON THESE FACTS IT WAS CONCLUDED THAT THE
LAW IMPOSED UPON THE PETITIONERS A DUTY OF EXERCISING ORDINARY CARE TO
PROVIDE SKOVGAARD WITH A REASONABLY SAFE PLACE TO CARRY ON HIS WORK OF
REPAIRING THE PUMP.  IN REACHING THIS CONCLUSION THE COURT
DISTINGUISHED THE NEW JERSEY SUPREME COURT'S DECISION IN BROECKER V.
ARMSTRONG CORK CO., 128 N.J.L. 3, 24 A.2D 194.  WE FIND NO REASON TO
QUESTION THE DISPOSITION OF THIS BRANCH OF THE CASE. 

AS TO THE OTHER ISSUES, A MAJORITY OF THE COURT OF APPEALS CONCLUDED
THAT A CLAIM FOR UNSEAWORTHINESS IS ENCOMPASSED BY THE NEW JERSEY
WRONGFUL DEATH ACT AS A MATTER OF STATE LAW.  (FN9)  THE THREE
DISSENTING MEMBERS OF THE COURT REACHED THE OPPOSITE CONCLUSION. 
APPARENTLY BECAUSE THE TRIAL COURT HAD MADE NO FINDING AS TO THE
DECEDENT'S CONTRIBUTORY NEGLIGENCE OR ASSUMPTION OF RISK, THE COURT OF
APPEALS REFRAINED FROM DECIDING WHAT EFFECT STATE LAW WOULD GIVE TO
SUCH FINDINGS, LEAVING THAT QUESTION TO BE DECIDED IF IT AROSE ON
RETRIAL. 

IN A CASE SUCH AS THIS IT IS INCUMBENT UPON THE ADMIRALTY TO ENFORCE
THE NEW JERSEY STATUTE JUST "AS IT WOULD ONE ORIGINATING IN ANY FOREIGN
JURISDICTION."  LEVINSON V. DEUPREE, 345 U.S. 648, 652.   YET THE FACT
IS THAT THE NEW JERSEY COURTS HAVE SIMPLY NOT SPOKEN UPON THE QUESTION
OF WHETHER IN A CASE SUCH AS THIS MARITIME LAW OR COMMON LAW IS
APPLICABLE UNDER THE STATE'S WRONGFUL DEATH ACT.  IN SUM, THERE IS NO
WAY OF KNOWING WHETHER NEW JERSEY WOULD IMPOSE UNIFORM LEGAL STANDARDS
THROUGHOUT ITS JURISDICTION, OR WOULD APPLY IN THIS CASE RULES
DIFFERENT FROM THOSE THAT WOULD GOVERN IF, INSTEAD OF MEETING HIS DEATH
ABOARD THE TUNGUS, SKOVGAARD HAD BEEN KILLED ON THE ADJACENT DOCK.  AN
EFFORT TO RESOLVE THAT QUESTION HERE, NO LESS THAN THE EFFORT OF THE
COURT OF APPEALS, COULD BE NOTHING BUT A PREDICTION, A PREDICTION THAT
MIGHT TOMORROW BE PROVED WRONG BY THE COURTS OF NEW JERSEY, WHICH ALONE
HAVE POWER TO RENDER AN AUTHORITATIVE INTERPRETATION. 

IN VIEW OF THESE CONSIDERATIONS, IT MIGHT PLAUSIBLY BE ARGUED THAT
THE JUDGMENT SHOULD BE VACATED, AND THE CASE REMANDED TO THE DISTRICT
COURT TO BE HELD UNTIL THE PARTIES CAN SECURE FROM THE COURTS OF NEW
JERSEY A DECISION UPON THE CONTROLLING AND SERIOUSLY DOUBTFUL QUESTION
OF STATE LAW.  UNDER TRADITIONAL PRINCIPLES OF EQUITABLE ABSTENTION
THIS COURT HAS OFTEN FOLLOWED SUCH A COURSE FOR THE LIMITED AND
OBVIOUSLY WISE PURPOSE OF AVOIDING UNNECESSARY RESOLUTION OF
CONSTITUTIONAL ISSUES.  RAILROAD COMM'N OF TEXAS V. PULLMAN CO., 312
U.S. 496; CHICAGO V. FIELDCREST DAIRIES, 316 U.S. 168; SPECTOR MOTOR
SERVICE, INC., V. MCLAUGHLIN, 323 U.S. 101; AMERICAN FEDERATION OF
LABOR V. WATSON, 327 U.S. 582; LEITER MINERALS V. UNITED STATES, 352
U.S. 220.  CF. THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478. 

BEFORE DECIDING TO DISPOSE OF A CASE LIKE THE PRESENT ONE IN THAT
WAY, HOWEVER, IMPORTANT AND COMPETING JURISDICTIONAL CONSIDERATIONS
WOULD HAVE TO BE THOROUGHLY EVALUATED.  SEE PROPPER V. CLARK, 337 U.S.
472, 486-489; MEREDITH V. WINTER HAVEN, 320 U.S. 228.  THIS CASE HAS
NOT PRESENTED THE OCCASION FOR FULL EXPLORATION OF THESE JURISDICTIONAL
QUESTIONS.  (FN10)  THE COURT OF APPEALS, EN BANC, HAS GIVEN CAREFUL
CONSIDERATION TO THE MEANING OF THE STATE STATUTE.  WE CANNOT SAY THAT
ITS CONCLUSION IS CLEARLY WRONG.  THEREFORE, DESPITE THE INHERENT
UNCERTAINTIES INVOLVED, WE WILL NOT DISTURB THAT COURT'S INTERPRETATION
OF THE NEW JERSEY LAW.  SUCH A COURSE IS CONSISTENT WITH THE PRACTICE
THAT HAS BEEN FOLLOWED IN THE PAST.  ESTATE OF SPIEGEL V. COMMISSIONER,
335 U.S. 701, 707-708; RAGAN V. MERCHANTS TRANSFER CO., 337 U.S. 530,
534; GENERAL BOX CO. V. UNITED STATES, 351 U.S. 159, 165.  AFFIRMED. 

FN1  THE LIBEL ALSO ASSERTED A CLAIM, PRESUMABLY UNDER THE NEW JERSEY
SURVIVAL STATUTE, N.J. STAT. ANN. 2A:15-3, FOR DAMAGES SUSTAINED BY THE
DECEDENT PRIOR TO HIS DEATH.  THIS CLAIM HAS BEEN ABANDONED. 

FN2  41 STAT. 1007, 46 U.S.C. SEC. 688. 

FN3  41 STAT. 537 ET SEQ., 46 U.S.C. SEC. 761 ET SEQ. 

FN4  SEE ALSO THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT, 44 STAT. 1424 ET SEQ., 33 U.S.C. SEC. 901 ET SEQ. IN THE PRESENT
CASE, THE RECORD SHOWS THAT THE RESPONDENT WAS AWARDED COMPENSATION
UNDER THE NEW JERSEY COMPENSATION ACT UPON A FINDING THAT HER
DECEDENT'S DEATH OCCURRED IN THE "TWILIGHT ZONE."  SEE DAVIS V.
DEPARTMENT OF LABOR, 317 U.S. 249. 

FN5  THE JONES ACT APPLIES "IN CASE OF THE DEATH OF ANY SEAMAN  ...
."    FN6  THE DEATH ON THE HIGH SEAS ACT CREATES A RIGHT OF ACTION
ONLY FOR A "WRONGFUL ACT, NEGLECT, OR DEFAULT OCCURRING ON THE HIGH
SEAS BEYOND A MARINE LEAGUE FROM THE SHORE OF ANY STATE ...  ."  46
U.S.C. SEC. 761. 

FN7  THE RELEVANT TEXT OF THE NEW JERSEY STATUTE IS AS FOLLOWS: 

"WHEN THE DEATH OF A PERSON IS CAUSED BY A WRONGFUL ACT, NEGLECT OR
DEFAULT, SUCH AS WOULD, IF DEATH HAD NOT ENSUED, HAVE ENTITLED THE
PERSON INJURED TO MAINTAIN AN ACTION FOR DAMAGES RESULTING FROM THE
INJURY, THE PERSON WHO WOULD HAVE BEEN LIABLE IN DAMAGES FOR THE INJURY
IF DEATH HAD NOT ENSUED SHALL BE LIABLE IN AN ACTION FOR DAMAGES,
NOTWITHSTANDING THE DEATH OF THE PERSON INJURED AND ALTHOUGH THE DEATH
WAS CAUSED UNDER CIRCUMSTANCES AMOUNTING IN LAW TO A CRIME."  N.J.
STAT. ANN. 2A:31-1. 

FN8  THAT THIS IS THE LAW HAS BEEN GENERALLY UNDERSTOOD BY THE OTHER
FEDERAL COURTS.  UNITED NEW YORK AND NEW JERSEY PILOTS ASSN. V.
HALECKI, 251 F.2D 708 (C.A.2D CIR.), JUDGMENT VACATED AND CAUSE
REMANDED, POST, P. 613; CONTINENTAL CASUALTY CO. V. THE BENNY SKOU, 200
F.2D 246 (C.A. 4TH CIR.); GRAHAM V. A. LUSI, LTD., 206 F.2D 223 (C.A.
5TH CIR.); LEE V. PURE OIL CO., 218 F.2D 711 (C.A. 6TH CIR.);
KLINGSEISEN V. COSTANZO TRANSP.  CO., 101 F.2D 902 (C.A. 3D CIR.); THE
H.S., INC., NO. 72, 130 F.2D 341 (C.A. 3D CIR.); FEIGE V. HURLEY, 89
F.2D 575 (C.A. 6TH CIR.); CURTIS V. A. GARCIA Y CIA., 241 F.2D 30 (C.A.
3D CIR.); O'BRIEN V. LUCKENBACH S.S. CO., 293 F. 170 (C.A.2D CIR.);
QUINETTE V. BISSO, 136 F. 825 (C.A. 5TH CIR.); THE A.W. THOMPSON, 39 F.
115 (D.C.S.D.N.Y.); BUT CF. RILEY V. AGWILINES, INC., 296 N.Y. 402, 73
N.E.2D 718; KUHN V. CITY OF NEW YORK, 274 N.Y. 118, 8 N.E.2D 300;
O'LEARY V. UNITED STATES LINE CO., 215 F.2D 708 (C.A. 1ST CIR.). 

FN9  THE COURT OF APPEALS ALSO DETERMINED THAT THE DECEDENT WAS
WITHIN THE CLASS PROTECTED BY THE WARRANTY OF SEAWORTHINESS AS
DEVELOPED BY FEDERAL MARITIME LAW, WHICH IT FOUND THE NEW JERSEY
STATUTE HAD INCORPORATED.  THIS SUBSIDIARY DETERMINATION IS CLEARLY
CORRECT.  THE DECEDENT'S STATUS IS PRACTICALLY INDISTINGUISHABLE FROM
THAT OF THE PLAINTIFF IN POPE & TALBOT, INC., V. HAWN, 346 U.S. 406,
THE ONLY DIFFERENCE BEING THAT THE CARGO HERE WAS OIL INSTEAD OF GRAIN,
AND WAS BEING UNLOADED INSTEAD OF LOADED. 

FN10  INDEED, SUCH A DISPOSITION HAS NOT EVEN BEEN SUGGESTED BY
COUNSEL. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE OPINION OF THE COURT.* 

*NOTE:  THIS OPINION APPLIES ALSO TO NO. 56, UNITED NEW YORK AND NEW
JERSEY SANDY HOOK PILOTS ASSN. V. HALECKI, POST, P. 613. 

DEEMING THE PROPER DETERMINATION OF THE SUBSTANTIVE ISSUES OF
ADMIRALTY LAW OF SUCH CONTROLLING IMPORTANCE, I ABSTAIN FROM STATING MY
STRONG CONVICTION, HERETOFORE EXPRESSED, THAT IN SITUATIONS LIKE THE
PRESENT THE CONSTRUCTION OF STATE LAW SHOULD NOT, AS A MATTER OF THE
WISE ADMINISTRATION OF LAW, BE MADE INDEPENDENTLY BY THE LOWER FEDERAL
COURTS, BUT ITS AUTHORITATIVE CONSTRUCTION SHOULD BE SOUGHT, UNDER
READILY AVAILABLE STATE PROCEDURE, FROM THE STATE COURT, WHILE THE CASE
IS HELD IN THE FEDERAL COURT.  SEE MY OPINIONS IN SUTTON V. LEIB, 342
U.S. 402, 412-414 (CONCURRING OPINION), AND PROPPER V. CLARK, 337 U.S.
472, 493-497 (DISSENTING OPINION), IN CONNECTION WITH RAILROAD COMM'N
V. PULLMAN CO., 312 U.S. 496, 500; THOMPSON V. MAGNOLIA PETROLEUM CO.,
309 U.S. 478, 484. 

WHERE AN ISSUE IS SOLELY CONCERNED WITH DIVERSITY JURISDICTION, AS
WAS THE SITUATION IN MEREDITH V. WINTER HAVEN, 320 U.S. 228, A
DIFFERENT CONSIDERATION MAY BECOME RELEVANT.  "FOR PURPOSES OF
DIVERSITY JURISDICTION A FEDERAL COURT IS, 'IN EFFECT, ONLY ANOTHER
COURT OF THE STATE.'"  ANGEL V. BULLINGTON, 330 U.S. 183, 187. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE DOUGLAS JOIN, CONCURRING IN PART AND DISSENTING IN
PART. 

IT SHOULD BE CLEAR FROM THE COURT'S STATEMENT OF FACTS THAT THE
RESPONDENT'S DECEDENT, SKOVGAARD, WAS AT THE TIME OF THE ACCIDENT
ABOARD THE TUNGUS IN ORDER TO ASSIST IN REPAIRING THE PUMP USED IN
DISCHARGING ITS CARGO OF OIL - IN UNLOADING THE VESSEL.  WHILE HE WAS
NOT A MEMBER OF THE CREW, BUT RATHER AN EMPLOYEE OF AN INDEPENDENT
CONTRACTOR, HE WAS UNQUESTIONABLY ONE TO WHOM THE VESSEL OWED THE DUTY
OF SEAWORTHINESS.  POPE & TALBOT, INC., V. HAWN, 346 U.S. 406, 412
413.  THIS MEANS THAT THERE WAS, AS IT IS OFTEN PUT, A "WARRANTY," OR
MORE PRECISELY STATED, AN OBLIGATION, A DUTY OWED TO CERTAIN PERSONS,
THAT THE VESSEL AND ITS EQUIPMENT, APPURTENANCES AND CREW MET A CERTAIN
STANDARD.  FOR ANY BREACH OF THAT DUTY, ANY FAILURE TO MEET THAT
STANDARD, ON THE PART OF THE VESSEL, WHICH GAVE RISE TO INJURY TO A
PERSON TO WHOM THAT DUTY WAS OWED, THE VESSEL AND ITS OWNER WERE BOUND
TO RESPOND IN DAMAGES.  IF THAT DUTY WAS IN BREACH HERE, AND
SKOVGAARD'S FALL, OCCASIONED THEREBY, HAD INJURED HIM SHORT OF DEATH,
THERE WOULD BE NO DOUBT THAT FEDERAL LAW WOULD AFFORD HIM A REMEDY FOR
THE INJURY, AND THAT FREE OF ANY DEFENSE IMPOSED BY THE LAW OF THE
STATE IN WHOSE TERRITORIAL WATERS THE ACCIDENT TOOK PLACE.  (FN1)  POPE
& TALBOT, INC., V. HAWN, SUPRA, AT 409-410.  BUT SKOVGAARD'S INJURIES
WERE ALMOST IMMEDIATELY FATAL, AND, AS IS EVIDENT FROM THE RECORD, THE
PRINCIPAL, IF NOT THE SOLE, CLAIM FOR DAMAGES ARISING OUT OF THE
ALLEGED BREACH OF THE DUTY OF SEAWORTHINESS MUST BE FOR THE DAMAGES
CAUSED BY HIS DEATH.  IT WAS DECIDED IN THE HARRISBURG, 119 U.S. 199,
THAT THE FEDERAL MARITIME LAW DID NOT AFFORD A REMEDY FOR THE DEATH OF
A HUMAN BEING, EVEN WHERE THE DEATH AROSE OUT OF A TORTIOUS BREACH OF
MARITIME DUTY. 

IN THE LIGHT OF THIS HOLDING, THE COURT ADDRESSES ITSELF TO THE
PROBLEM WHETHER THE NEW JERSEY WRONGFUL DEATH ACT CAN BE UTILIZED TO
FURNISH A REMEDY FOR THE BREACH OF THE FEDERALLY DEFINED DUTY OWED TO
SKOVGAARD.  IN REACHING ITS SOLUTION OF THIS PROBLEM, I FEAR THAT IT
HAS POSED THE WRONG QUESTION.  THE COURT TAKES THE VIEW THAT IT IS A
QUESTION OF STATE LAW WHETHER THE RESPONDENT CAN UTILIZE THE NEW JERSEY
ACT TO SUPPLY A REMEDY FOR THE BREACH OF THE DUTY OF SEAWORTHINESS
CHARGED HERE.  IT ACCEPTS THE ANSWER OF THE COURT OF APPEALS TO THIS
QUESTION.  THE PROBLEM TO THE COURT IS ONE OF CONSTRUCTION OF THE STATE
ACT TO DETERMINE WHETHER IT "INCORPORATES" THE MARITIME STANDARD.  THIS
IS ALSO THE VIEW TAKEN BY THE LOWER COURTS OF WHAT THE BASIC QUESTION
IN THIS CASE IS.  I THINK IT IS WRONG, AND I SHALL STATE MY REASONS
WHY. 

I. 

FIRST.  I HAVE DEVELOPED THAT SKOVGAARD WAS ENTITLED TO THE DUTY OF
SEAWORTHINESS AT THE TIME OF THE ACCIDENT, AND THAT THERE WOULD BE NO
CONCERN AT ALL WITH STATE LAW IN THIS REGARD IF HE HAD BEEN INJURED
SHORT OF DEATH.  BUT THE HOLDING OF THE HARRISBURG, SUPRA, DENIES THE
EXISTENCE OF A FEDERALLY CREATED REMEDY FOR WRONGFUL DEATH ARISING OUT
OF MARITIME TORTS.  THOUGH THIS HOLDING WAS FAR FROM BEING AT ONE WITH
THE RESULTS THAT HAD BEEN REACHED IN THE LOWER ADMIRALTY COURTS PRIOR
TO IT, AND WAS BASED LARGELY ON AN APPLICATION OF THE HARSH COMMON-LAW
PRINCIPLE, THEN RATHER LATELY EVOLVED, (FN2) THAT IN THE ABSENCE OF AN
APPROPRIATE STATUTE THERE WAS NO CIVIL REMEDY FOR WRONGFUL DEATH, THE
HOLDING HAS BECOME PART AND PARCEL OF OUR MARITIME JURISPRUDENCE.  BUT
ITS HARSHNESS WAS AVERTED BY THE PRACTICE IN ADMIRALTY OF DRAWING ON
THE STATE WRONGFUL DEATH STATUTES TO FURNISH REMEDIES FOR FATAL
MARITIME TORTS.  TO AN EXTENT THIS PRACTICE ANTEDATED THE HARRISBURG,
AS THE CASES CITED IN THAT OPINION ILLUSTRATE.  SEE, E.G., THE GARLAND,
5 F. 924.  IT WAS CONTINUED THEREAFTER, AND EVEN EXTENDED TO TORTS
COMMITTED ON THE HIGH SEAS, BEYOND THE TERRITORIAL WATERS OF ANY
STATE.  THE HAMILTON, 207 U.S. 398.  AND AFTER THE PASSAGE BY THE
CONGRESS OF THE DEATH ON THE HIGH SEAS ACT IN 1920, 41 STAT. 537, 46
U.S.C. SEC. 761 ET SEQ., WHICH ESTABLISHED A FEDERAL REMEDY FOR CASES
OF WRONGFUL DEATH OCCURRING MORE THAN A MARINE LEAGUE FROM SHORE, STATE
ACTS CONTINUED TO BE USED BY THE ADMIRALTY, PURSUANT TO THE TERMS OF
THE ACT, IN THE CASE OF WRONGS OCCURRING IN TERRITORIAL WATERS. 

THOUGH THE INDIVIDUAL STATUTES VARY IN TERMINOLOGY AND TO AN EXTENT
IN CONCEPT, ALL THE STATES HAVE WRONGFUL DEATH ACTS - ACTS WHICH
PROVIDE REMEDIES TO A DECEDENT'S ESTATE, OR TO CERTAIN SPECIFIED
BENEFICIARIES, FOR THE HARM DONE ON ACCOUNT OF THE TORTIOUS KILLING OF
THE DECEDENT.  WHILE THE COURSE OF DEVELOPMENT OF THE COMMON LAW HAS
BROUGHT IT ABOUT THAT THIS REMEDY HAS ALWAYS BEEN EMBODIED IN A
STATUTORY ENACTMENT, THE EXISTENCE OF SUCH A REMEDY IS NOW A BASIC
PREMISE OF THE LAW OF TORTS ADMINISTERED THROUGHOUT THE COUNTRY.  AND
WITH THE DEATH ON THE HIGH SEAS ACT AND THE STATE STATUTES, THE FEDERAL
ADMIRALTY LAW HAS AVAILABLE A REMEDY TO FASHION FOR THE FATAL BREACH OF
A MARITIME DUTY ANYWHERE WITHIN ITS JURISDICTION. 

SECOND.  CAN SUCH A REMEDY, BASED ON A STATE STATUTE, BE AFFORDED FOR
BREACH OF THE DUTY, IMPOSED BY FEDERAL LAW, TO MAINTAIN A VESSEL IN
SEAWORTHY CONDITION?  I THINK IT CAN.  THE QUESTION IS VIEWED BY THE
COURT TODAY AND BY THE COURTS BELOW AS ONE OF INTERPRETATION OF THE
STATUTE OF A PARTICULAR STATE; THE COURT OF APPEALS DIVIDED OVER WHAT
INTENT SHOULD BE ASCRIBED TO THE NEW JERSEY LEGISLATURE IN ENACTING
THAT STATE'S WRONGFUL DEATH ACT.  THE PROCESS OF DIVINING THE "INTENT"
OF THE VARIOUS STATE LEGISLATURES IS SUCH CIRCUMSTANCES IS NOT A
COMPLETELY FRUITFUL ONE, AS THE COURT'S OPINION MAKES ABUNDANTLY CLEAR,
AND, AS I HAVE INTIMATED, I DO NOT BELIEVE IT IS PART OF THE REAL
QUESTION THE COURT SHOULD BE ASKING HERE.  THE COURT HAS SIMPLY FAILED
TO GRASP THE IMPORTANT DISTINCTION HERE BETWEEN DUTIES AND REMEDIES;
BETWEEN THE LAW GOVERNING THE DETAILS OF HUMAN BEHAVIOR AND THE LAW
GOVERNING THE SPECIFIC APPLICATION OF JUDICIAL SANCTIONS FOR BREACH OF
DUTY.  IT IS VITAL TO AN UNDERSTANDING OF THIS CASE TO RECALL THAT THE
DUTY CLAIMED TO HAVE BEEN BROKEN HERE WAS ONE GROUNDED IN FEDERAL LAW. 
IT WOULD BE A STRAINED STATEMENT OF THE EFFECT OF THE HARRISBURG TO SAY
THAT THERE WAS NO DUTY IMPOSED BY THE MARITIME LAW NOT TO KILL PERSONS
THROUGH BREACH OF THE DUTY OF SEAWORTHINESS.  THE LIBEL ALLEGED A
CONDITION CONSTITUTING A BREACH OF A FEDERALLY DEFINED DUTY AND SET
FORTH A CAUSE OF ACTION UNDER FEDERAL LAW, AND THIS NONETHELESS BECAUSE
THE BREACH OF THE FEDERAL DUTY HAD RESULTED IN DEATH RATHER THAN IN
NONFATAL INJURY.  IT IS THE FEDERAL MARITIME LAW THAT LOOKS TO THE
STATE LAW OF REMEDIES HERE, NOT THE STATE LAW THAT INCORPORATES A
FEDERAL STANDARD OF CARE.  THIS COURT PLAINLY DECLARED IN POPE &
TALBOT, INC., V. HAWN, SUPRA, AT 409, THAT EVEN WHEN THE INJURED PARTY
SEEKS TO ENFORCE "A STATE CREATED REMEDY" FOR THE BREACH OF THE
FEDERALLY DEFINED DUTY OWING TO HIM, "FEDERAL MARITIME LAW WOULD BE
CONTROLLING."  THE COURT TODAY DOES NOT REFER TO THIS RECENT
EXPRESSION, CLEARLY OF THE GREATEST RELEVANCE HERE.  GIVEN A FEDERAL
LEGAL SYSTEM WHERE THE REMEDY FOR WRONGFUL DEATH IS AS UNIVERSAL AS IN
OURS, I THINK IT UNWARRANTEDLY DESTRUCTIVE OF THE UNIFORMITY OF THE
FEDERAL MARITIME LAW, CF. SOUTHERN PACIFIC CO. V.  JENSEN, 244 U.S.
205, (FN3) TO MAKE THE APPLICABILITY OF A REMEDY FOR THE BREACH OF A
FEDERALLY DEFINED DUTY RESULTING IN DEATH DEPENDENT ON A FRANKLY
SUPPOSITITIOUS DETERMINATION OF THE INTENT OF THE VARIOUS STATE
LEGISLATURES, GENERALLY ACTING AT A TIME LONG BEFORE A CLEAR CONCEPT OF
THE SCOPE OF THE FEDERAL DUTY HAD EMERGED.  AND OF COURSE THIS
DETERMINATION WILL ALMOST INVARIABLY BE MADE BY THE FEDERAL COURTS. 

THE COURT'S SOLUTION NOT ONLY CREATES POTENTIAL DIFFERENCES IN THE
AVAILABILITY OF A REMEDY FOR BREACH OF THE FEDERALLY CREATED DUTY WHERE
THE VICTIM DIES AS OPPOSED TO CASES WHERE HE IS INJURED SHORT OF DEATH;
THOSE DIFFERENCES MAY EXIST IN VARYING DEGREES AS TO MARITIME TORTS
OCCURRING IN THE TERRITORIAL WATERS OF VARIOUS STATES.  I CANNOT THINK
THAT ANY SUCH VARIATION IS APPROPRIATE OR NECESSARY IN THE ENFORCEMENT
OF THE CAUSE OF ACTION FOR UNSEAWORTHINESS.  THE FEDERAL DUTY NEED NOT
BE SUBJECT TO THIS POTENTIAL DIVERSITY OF REMEDIES.  CF. CARLISLE
PACKING CO. V. SANDANGER, 259 U.S. 255; GARRETT V. MOORE-MCCORMACK CO.,
317 U.S. 239.  (FN4)  THE EXISTENCE OF A REMEDY FOR WRONGFUL DEATH HAS
BECOME ALMOST A POSTULATE OF OUR LEGAL SYSTEM, THOUGH THE REMEDY WAS
GENERALLY PROVIDED BY LEGISLATION RATHER THAN BY THE DECISIONAL LAW. 
IT IS AGAINST THIS BACKGROUND THAT THE FEDERAL LAW MUST LOOK FOR AN
APPROPRIATE REMEDY TO ENFORCE ITS DUTIES IN A COMPLETE AND RATIONAL
WAY.  CF. COX V. ROTH, 348 U.S. 207, 210.  ANY STATE STATUTE WHICH
GENERALLY PROVIDES REMEDIES FOR TORTIOUS DEATH CAN AND SHOULD BE DRAWN
UPON BY THE MARITIME LAW IN ENFORCING THE FEDERAL CAUSE OF ACTION.  CF.
JUST V. CHAMBERS, 312 U.S. 383, 389. 

IT IS TRUE THAT FOR STATE-LAW PURPOSES THESE STATUTES ARE FREQUENTLY
SPOKEN OF AS CREATING A "NEW CAUSE OF ACTION."  SEE TURON V. J.&L.
CONSTRUCTION CO., 8 N.J. 543, 556, 86 A.2D 192, 198; AKE V. BIRNBAUM,
156 FLA. 735, 751, 25 SO. 2D 213, 215-216; (FN5) CF.  SEWARD V. THE
VERA CRUZ, 10 A.C. 59, 67.  AND SO THEY DO, IN THE SENSE THAT THEY GIVE
REMEDIES WHERE FREQUENTLY NONE EXISTED BEFORE, IN FAVOR OF CLASSES OF
PERSONS POTENTIALLY DIFFERENT FROM THE DISTRIBUTEES OF A DECEDENT'S
ESTATE, AND IN THE LARGE TO AN EXTENT DESIGNED TO FURNISH REDRESS FOR
THE DEATH.  AND IT IS FURTHER TRUE THAT NOT EVERY TORT DUTY IMPOSED BY
A PARTICULAR STATE'S LAW MAY BE AFFORDED A REMEDY BY THEM.  BUT INSOFAR
AS THESE ACTS HAVE AS THEIR PURPOSE THE EFFECTING OF A GENERAL AND
ROUGH EQUIVALENCY BETWEEN THE DUTIES FOR BREACH OF WHICH A REMEDY LIES
IN THE CASE OF INJURIES CAUSING DEATH AND THOSE SHORT OF IT, THEY CAN
BE PROPER SUBJECTS FOR THE FLEXIBILITY OF THE FEDERAL MARITIME LAW IN
FASHIONING A REMEDY FOR BREACH OF THE DUTY OF SEAWORTHINESS.  THE
CONTENT OF THE CONCEPT OF "CAUSE OF ACTION" IS A VARIABLE AND UNCERTAIN
ONE, AND THERE IS LITTLE POINT IN ANALYZING THE VARIOUS SENSES IN WHICH
IT HAS BEEN USED IN CONNECTION WITH THE STATE STATUTES.  IN A REAL
SENSE THE STATE ACTS ARE REMEDIAL, AND AS SUCH THEY CAN BE USED BY THE
ADMIRALTY.  USED IN THIS WAY FOR REMEDIAL PURPOSES, THEY WOULD NOT
INTERFERE WITH THE UNIFORM CHARACTER OF THE GENERAL MARITIME LAW, CF.
CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372, 384, BUT RATHER WOULD
BE AN EFFECTIVE METHOD OF PROMOTING IT.    OF COURSE THERE IS NO
OBJECTION TO USING STATE REMEDIAL INCIDENTS TO SUPPLEMENT AND ENFORCE
DUTIES ARISING UNDER FEDERAL LAW.  THE FEDERAL COURTS OF THEIR OWN
INITIATIVE HAVE USED STATE STATUTES FOR REMEDIAL PURPOSES WHEN FEDERAL
DUTIES WERE CONCERNED.  STATE STATUTES OF LIMITATION APPLICABLE TO
ANALOGOUS TYPES OF CLAIMS HAVE BEEN UTILIZED TO DEFINE THE LIMITATIONS
OF FEDERAL RIGHTS OF ACTION FOR WHICH NO FEDERAL STATUTE OF LIMITATIONS
HAS BEEN PROVIDED.  CAMPBELL V. HAVERHILL, 155 U.S. 610; COPE V.
ANDERSON, 331 U.S. 461; CF. HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395;
HAMILTON FOUNDRY & MACHINE CO. V. INTERNATIONAL MOLDERS UNIONS, 193
F.2D 209, 215.  THIS REMEDIAL INCIDENT, TIED UP WITH THE FELT NECESSITY
OF HAVING SOME STATUTORY DEFINITION, IS DRAWN UPON NOT BECAUSE OF ANY
INTENT OF THE STATE LEGISLATURES TO MAKE THEIR STATUTE APPLICABLE TO
FEDERAL CLAIMS, BUT BECAUSE IT COULD BE RATIONALLY UTILIZED THROUGH
ANALOGY BY COURTS CHARGED WITH THE ENFORCEMENT OF FEDERAL RIGHTS AND
DUTIES AND THE CONSTRUCTION OF A PROPER PATTERN OF REMEDIES TO THAT
END.  IT IS ON SUCH A BASIS THAT THE FEDERAL MARITIME LAW HERE, IN MY
VIEW, CAN MAKE USE OF THE NEW JERSEY STATUTE TO ENFORCE THOSE DUTIES
THAT ARE GROUNDED IN FEDERAL LAW. 

I AM SUPPORTED IN THIS CONCLUSION BY TWO CAREFULLY REASONED OPINIONS
OF THE NEW YORK COURT OF APPEALS.  KUHN V. CITY OF NEW YORK, 274 N.Y.
118, 8 N.E.2D 300; RILEY V. AGWILINES, INC., 296 N.Y. 402, 73 N.E.2D
718.  BOTH CASES CONSIDERED ACTIONS BROUGHT IN THE STATE COURTS UNDER
THE SAVING CLAUSE, 28 U.S.C. SEC. 1333(1), TO REDRESS MARITIME TORTS
WHICH RESULTED IN DEATH.  THE ACTIONS WERE BASED UPON THE MARITIME
THEORIES OF NEGLIGENCE AND UNSEAWORTHINESS.  THE NEW YORK COURT OF
APPEALS HELD THAT THE STATE'S WRONGFUL DEATH STATUTE AFFORDED ONLY AN
APPROPRIATE REMEDY FOR BREACHES OF DUTIES WHICH WERE TO BE RECOGNIZED
AS ESSENTIALLY FEDERAL IN THEIR SOURCE AND UNIFORM IN THEIR
APPLICATION:  "WE MUST LOOK TO THE DECISIONS OF THE FEDERAL COURTS TO
DEFINE THE LIABILITIES OF SHIPOWNERS FOR MARITIME TORTS, LEAVING OUT OF
CONSIDERATION DECISIONS OF OUR OWN COURTS OR STATUTES OF THE STATE
WHICH CONFLICT WITH THE RULES OF LIABILITY ESTABLISHED IN THE FEDERAL
COURTS."  RILEY V. AGWILINES, INC., 296 N.Y. 402, 405-406, 73 N.E.2D
718, 719.  THE COURT CLEARLY VIEWED THE ISSUE OF THE DUTIES ALLEGED TO
HAVE BEEN IN BREACH TO BE NOT A MATTER OF INTERPRETATION OF THE NEW
YORK WRONGFUL DEATH STATUTE BUT TO BE A QUESTION UPON WHICH THE FEDERAL
MARITIME LAW WAS COMPELLING.  (FN6)  CF. O'LEARY V. UNITED STATES LINES
CO., 215 F.2D 708, 711. 

THIRD.  I FIND NO REASON TO REACH A CONTRARY RESULT IN THE
AUTHORITIES RELIED UPON BY THE COURT, OR URGED BY THE PETITIONER.  IT
IS TRUE THAT THERE IS LANGUAGE IN THE HARRISBURG, 119 U.S. 199, 214,
DESCRIBING THE STATE WRONGFUL DEATH ACT ENFORCED BY THE ADMIRALTY AS
CREATING BOTH A LIABILITY AND A REMEDY.  BUT THE LEGAL SOURCE OF THE
DUTY SOUGHT TO BE ENFORCED THERE WAS NOT CLAIMED OR RECOGNIZED TO BE
ROOTED IN FEDERAL LAW.  THE CASE WAS DECIDED LONG BEFORE THE CAUSE OF
ACTION FOR UNSEAWORTHINESS REACHED ITS PRESENT MATURE STATE, RECOGNIZED
AS BEING FEDERAL IN ITS ORIGIN AND INCIDENTS.  SEAS SHIPPING CO. V.
SIERACKI, 328 U.S. 85; POPE & TALBOT, INC., V. HAWN, SUPRA; ALASKA S.S.
CO. V. PETTERSON, 347 U.S. 396.  AND THE HARRISBURG, ON THIS POINT,
TOGETHER WITH WESTERN FUEL CO. V. GARCIA, 257 U.S. 233, ON WHICH THERE
IS ALSO RELIANCE, ACTUALLY HELD THAT IN AN ADMIRALTY ACTION USING THE
STATE WRONGFUL DEATH ACT THE STATE STATUTE OF LIMITATIONS APPLICABLE TO
ACTIONS UNDER THE STATE LAW USING THE STATE ACT WOULD BE UTILIZED. 
THIS WAS A SOLUTION TO ONE ASPECT OF THE LIMITATIONS PROBLEM IN
MARITIME PERSONAL TORT ACTIONS, SEE MCALLISTER V. MAGNOLIA PETROLEUM
CO., 357 U.S. 221, 224, 228-229.  THE MOST READILY AVAILABLE
LIMITATIONS PERIOD FOR AN ACTION MAKING USE OF A STATE WRONGFUL DEATH
ACT WAS THE PERIOD STATED THEREIN, AND THE COURT RELIED ON IT RATHER
THAN THE ADMIRALTY RULE OF LACHES.  IN LEVINSON V. DEUPREE, 345 U.S.
648, THE COURT WAS NOT CONCERNED WITH A SITUATION IN WHICH THE DUTY
ALLEGED TO HAVE BEEN BROKEN WAS AS CLEARLY FEDERAL AS IS THAT IN THE
INSTANT CASE, AND IT WAS APPARENTLY ASSUMED THAT THE RIGHT TO BE
ENFORCED WAS GROUNDED IN STATE LAW.   THE ACTION WAS NOT A SEAMAN'S OR
HARBOR WORKER'S ACTION AT ALL, BUT RATHER AROSE OUT OF A COLLISION
BETWEEN TWO MOTORBOATS ON THE OHIO RIVER, FATAL TO A GIRL RIDING IN ONE
OF THEM.  AND OF COURSE THE HOLDING OF THE COURT THERE IS OF NO
ASSISTANCE TO THE MAJORITY, SINCE A STATE-LAW PROCEDURAL INCIDENT,
ALLEGED TO BE BINDING SINCE THE ADMIRALTY WAS MAKING USE OF THE STATE
ACT, WAS IN FACT REJECTED.  LINDGREN V. UNITED STATES, 281 U.S. 38,
WHICH HELD THAT A SEAMAN'S REPRESENTATIVE COULD NOT SUE FOR
UNSEAWORTHINESS UNDER A STATE WRONGFUL DEATH ACT, DOES NOT GOVERN THIS
POINT AT ALL.  THE OPINION DEALT PRIMARILY WITH THE EFFECT OF THE JONES
ACT'S WRONGFUL DEATH PROVISION IN REMOVING THE SEAMAN'S RIGHT TO INVOKE
THE REMEDIES OF STATE DEATH ACTS FOR THE IDENTICAL GRAVAMEN OF
NEGLIGENCE.  AND, ALTHOUGH THE LIBEL DID NOT ALLEGE UNSEAWORTHINESS,
THE COURT BRIEFLY OBSERVED THAT THE JONES ACT'S DEATH PROVISION WOULD
BE CONSTRUED EQUALLY AS FORECLOSING A STATE STATUTE'S USE ON THAT
COUNT.  THE CASE PROVIDES NO RULE HERE, SINCE ITS HOLDING WAS PREMISED
ON THE JONES ACT, AND TO SKOVGAARD'S INJURY AND DEATH THE JONES ACT IS
NOT APPLICABLE.  (FN7)  FINALLY, THERE IS NOT PRESENTED HERE ANY
QUESTION OF THE EXTENT TO WHICH A STATE IS REQUIRED TO SUPPLY A FORUM
FOR THE ENFORCEMENT OF THE DUTIES HERE INVOLVED.  CF. CALDAROLA V.
ECKERT, 332 U.S. 155, 158; (FN8) BUT CF. TESTA V. KATT, 330 U.S. 386. 

THE COURT'S REASONING THAT THE DEATH ON THE HIGH SEAS ACT IS SOMEHOW
DISPOSITIVE OF THE QUESTION PRESENTED TODAY APPEARS TO ME TO CONTINUE
ITS CONFUSION BETWEEN THE RIGHTS AND DUTIES OF THE PARTIES AND THE
REMEDIAL PATTERN TO BE FOLLOWED IN ENFORCING THEM.  NO ONE IS
CONTENDING THAT THE STATE STATUTES ARE TO BE GIVEN NO OPERATION IN THIS
AREA; THEY ARE AN IMPORTANT REMEDIAL INCIDENT OF THE RIGHT THAT
RESPONDENT SEEKS TO ASSERT HERE.  OF COURSE CONGRESS IN THE DEATH ON
THE HIGH SEAS ACT WAS INTERESTED IN PRESERVING THEIR AVAILABILITY. 
THERE IS, HOWEVER, NO SUGGESTION IN THE ACT OR ITS LEGISLATIVE HISTORY
THAT CONGRESS INTENDED THAT THE SUBSTANTIVE LAW OF THE STATES BE THE
ONLY LAW APPLICABLE IN DEATH CASES IN TERRITORIAL WATERS, OR THAT IN
FACT IT BE APPLICABLE AT ALL IN PARTICULAR PROCEEDINGS.  THE EFFECT OF
CONGRESS' ACTION WAS TO LEAVE THE STATE STATUTES AVAILABLE AS REMEDIAL
MEASURES IN TERRITORIAL WATER DEATH CASES.  IT OFFERS NO GUIDE FOR ANY
CONCLUSION AS TO WHAT SUBSTANTIVE LAW IS TO APPLY UNDER THE STATE ACTS
IN SITUATIONS WHERE FEDERALLY CREATED RIGHTS AND DUTIES WOULD HAVE
PREVAILED HAD THE INJURY NOT BEEN FATAL.  THE ONLY CONCRETE EXAMPLES OF
WHAT THE CONGRESS WAS INTERESTED IN SAVING TO THE STATES GIVEN ON THE
FLOOR OF THE HOUSE WERE THE JURISDICTION OF THE STATE COURTS, WHICH WAS
DWELT ON AT LENGTH, 59 CONG. REC. 4484-4485, AND THE MAINTENANCE OF THE
STATE SCHEME OF BENEFICIARIES, IBID., WHICH IS NOT CHALLENGED HERE.  IT
IS ODD TO DRAW RESTRICTIVE INFERENCES FROM A STATUTE WHOSE PURPOSE WAS
TO EXTEND RECOVERY FOR WRONGFUL DEATH.  THE LEGISLATIVE HISTORY DOES
NOT REVEAL THE UTMOST PRECISION IN THOUGHT REGARDING THE ROLE OF STATE
LAW HERE, BUT CERTAINLY THERE IS NO CLEAR BASIS IN IT FROM WHICH TO
INFER THAT THE COURT'S ANOMALOUS RESULT IS A NECESSARY ONE. 

CLEARLY, THEN, NEITHER THE DECIDED CASES NOR LEGISLATIVE MATERIALS
FORECLOSE THE QUESTION OF THE APPROACH TO STATE WRONGFUL DEATH ACTS
THAT SHOULD BE TAKEN BY THE FEDERAL ADMIRALTY LAW IN FASHIONING
REMEDIES FOR BREACH OF THE FEDERALLY DEFINED DUTY WITH WHICH WE ARE
HERE CONCERNED.  AND AS I HAVE INDICATED, THE VITAL PRINCIPLES OF THE
ADMIRALTY LAW AS DEFINED BY THIS COURT IN THE PAST POINT TO THE RESULT
I HAVE INDICATED.  A PROPER UNIFORMITY ON ESSENTIAL MATTERS OF MARITIME
COGNIZANCE, SEE JUST V. CHAMBERS, 312 U.S. 383, 389, CANNOT BE REACHED
BY MAKING THE AVAILABILITY OF THIS REMEDY DEPENDENT UPON EXEGESIS OF
THE STATUTE OF EACH STATE.  IT IS ENOUGH FOR ME THAT THE STATE PROVIDE
SUCH A REMEDY IN A GENERAL WAY; THE REMEDY IS NOW A UNIVERSAL FEATURE
OF THE COMMON-LAW SYSTEM IN THIS COUNTRY, AND IN ITS ESSENTIAL FEATURES
OFFERS A SUFFICIENT BASIS FOR THE OPERATION OF THE GENERAL MARITIME
LAW.  WHILE THERE IS GROUND FOR LOCAL VARIATION ON NONESSENTIAL
MATTERS, ON THE ESSENTIALS THE ADMIRALTY MAY LOOK TO UNIFORM FEATURES
IN THESE STATUTES RATHER THAN TO THE DIVERSE.  THE COURT'S ANOMALOUS
RESULT THAT DIFFERENT SYSTEMS OF LAW GOVERN IN DETERMINING THE TORTIOUS
CHARACTER OF CONDUCT, DEPENDING ON WHETHER IT KILLS OR MERELY INJURES
ITS VICTIM, IS A CONSCIOUS CHOICE OF A NONUNIFORM SOLUTION ON AN
ESSENTIAL MATTER, AND AS SUCH CONTRARY TO ONE OF THE BASIC PRINCIPLES
OF ADMIRALTY LAW. 

IT MIGHT BE CONTENDED THAT THE CONTOURS OF THE VARIOUS STATE REMEDIES
ARE SO DIVERSE IN THE VARYING LISTS OF STATUTORY BENEFICIARIES THEY
PROVIDE THAT THE AREA BECOMES ONE IN WHICH UNIFORMITY CANNOT IN ANY
EVENT BE ATTAINED, AND ACCORDINGLY IT COULD BE SAID TO BE INAPPROPRIATE
TO SEEK UNIFORMITY EVEN IN THE CONTENT OF THE DUTY TO BE ENFORCED.  I
CANNOT FIND SUCH A CONTENTION PERSUASIVE.  THE DISTRIBUTION OF FUNDS
ACCRUING TO A DECEDENT'S REPRESENTATIVES BY REASON OF HIS DEATH IS A
MATTER, IN OUR FEDERAL SYSTEM, PECULIARLY WITHIN THE COMPETENCE OF THE
STATES.  CERTAINLY IT IS NOT A MATTER MORE DESTRUCTIVE OF THE UNIFORM
CHARACTER OF THE MARITIME LAW THAN WERE THE STATE STATUTES OF
LIMITATIONS ENFORCED IN WESTERN FUEL CO. V. GARCIA, SUPRA.  AND IT IS
NO MORE DISTURBING TO THE MARITIME LAW WHETHER THE STATE DISTRIBUTIONAL
SCHEME IS ONE PROVIDED GENERALLY BY ITS LAW OR ONE PECULIAR TO ITS
WRONGFUL DEATH STATUTE.  (FN9)

             II. 

PETITIONER CONTENDS THAT, ON THE RESPONDENT'S NEGLIGENCE CLAIM, THE
COURT OF APPEALS IMPROPERLY APPLIED FEDERAL LAW TO THE DETERMINATION OF
THE QUESTION WHETHER A DUTY TO FURNISH A REASONABLY SAFE PLACE TO WORK
WAS OWED THE DECEDENT BY THE RESPONDENT VESSEL AND ITS OWNER.  ON THIS
ASPECT OF THE CASE, THE COURT OF APPEALS, CITING BOTH NEW JERSEY AND
FEDERAL CASES, INDICATED THAT SUCH A DUTY EXISTED AND THAT IT WOULD
HAVE BEEN TORTIOUS FOR THE RESPONDENT NEGLIGENTLY TO HAVE FAILED TO
PROVIDE A SAFE PLACE.  IT REMANDED THE CASE TO THE DISTRICT COURT FOR
FINDINGS ON THE ISSUE OF NEGLIGENCE AND ON ANY DEFENSES ON THAT ISSUE
THAT MIGHT BE AVAILABLE TO THE PETITIONER.  PETITIONER CONTENDS HERE
THAT NEW JERSEY LAW APPLIES TO THE QUESTION WHETHER SUCH A DUTY WAS
OWED, ALLEGING THAT THE NEW JERSEY PRECEDENTS ARE CONTRARY TO THE
RESULT REACHED BY THE COURT BELOW.  ALTHOUGH IT BELIEVES THAT THE COURT
OF APPEALS PROPERLY APPLIED NEW JERSEY LAW, THE COURT ACCEPTS THE
CONTENTION THAT STATE LAW APPLIES HERE.  IN VIEW OF WHAT I HAVE SAID
ABOVE, I CANNOT AGREE.  IN POPE & TALBOT, INC., V. HAWN, SUPRA, AT 409,
IT WAS MADE CLEAR THAT THE DUTY IMPOSED BY THE THEORY OF NEGLIGENCE TO
ACT IN ACCORDANCE WITH A STANDARD OF REASONABLE CARE, WHEN COUPLED WITH
THE DUTY TO MAINTAIN A SEAWORTHY SHIP, OWED TO A PERSON IN SKOVGAARD'S
STATUS, WAS A FEDERALLY CREATED DUTY.  CF. THE MAX MORRIS, 137 U.S. 1,
14-15.  THE FACTUAL CIRCUMSTANCES INVOLVING PROOF OF NEGLIGENCE AND OF
UNSEAWORTHINESS, WHERE BOTH ARE CLAIMED, ARE GENERALLY INTERTWINED. 
POPE & TALBOT, INC., V. HAWN, SUPRA, AT 416 (CONCURRING OPINION);
MCALLISTER V. MAGNOLIA PETROLEUM CO., 357 U.S. 221, 224-225.  CF.
BALTIMORE S.S. CO. V. PHILLIPS, 274 U.S. 316.  MY VIEW IS THAT IT IS
PLAIN THAT IN ENFORCING THE RELATED DUTY IMPOSED BY THE OBLIGATION NOT
NEGLIGENTLY TO INFLICT HARM THE FEDERAL COURTS MUST LOOK TO STATE
WRONGFUL DEATH ACTS IN THE SAME LIGHT AS I HAVE INDICATED IT IS
APPROPRIATE TO LOOK AT THEM IN ENFORCING THE DUTY TO MAINTAIN A
SEAWORTHY VESSEL.  THE BASIS FOR THE HOLDING THAT NEW JERSEY LAW
APPLIES IS THE COURT'S ACCEPTANCE OF A DISTINCTION IN PRIMARY LEGAL
DUTIES IN RESPECT TO MARITIME ACCIDENTS CAUSING FATAL AS OPPOSED TO
NONFATAL INJURIES.  AS I HAVE DEVELOPED ABOVE, I CANNOT VIEW ANY SUCH
DISTINCTION AS TENABLE.  SINCE THE COURT OF APPEALS' HOLDING ON THE
NEGLIGENCE ISSUE WAS CORRECT AS A MATTER OF FEDERAL LAW, ITS JUDGMENT
SHOULD BE AFFIRMED ON THIS POINT, EXCEPT TO THE EXTENT THAT IT DIRECTED
THE DISTRICT COURT TO DETERMINE WHAT DEFENSES WERE AVAILABLE AS A
MATTER OF NEW JERSEY LAW. 

III. 

ADMIRALTY LAW IS PRIMARILY JUDGE-MADE LAW.  THE FEDERAL COURTS HAVE A
MOST EXTENSIVE RESPONSIBILITY OF FASHIONING RULES OF SUBSTANTIVE LAW IN
MARITIME CASES.  SEE WILBURN BOAT CO. V. FIREMAN'S FUND INS. CO., 348
U.S. 310, 314; CF. THE JOHN G. STEVENS, 170 U.S. 113, 126-127.  THIS
RESPONSIBILITY PLACES ON THIS COURT THE DUTY OF ASSURING THAT THE
PRODUCT OF THE EFFORT BE COHERENT AND RATIONAL.  ADMIRALTY LAW IS AN
AREA WHERE FLEXIBILITY AND CREATIVITY HAVE BEEN DEMONSTRATED IN
ACCOMPLISHING THIS.  TODAY THE COURT ANNOUNCES THE STRANGE PRINCIPLE
THAT THE SUBSTANTIVE RULES OF LAW GOVERNING HUMAN CONDUCT IN REGARD TO
MARITIME TORTS VARY IN THEIR ORIGIN DEPENDING ON WHETHER THE CONDUCT
GIVES RISE TO A FATAL OR A NONFATAL INJURY.  I HAVE DEMONSTRATED THAT
IT DOES SO UNDER NO COMPULSION OF BINDING PRECEDENT HERE OR OF ACT OF
CONGRESS.  ITS ANOMALOUS RESULT IS PURELY OF ITS OWN MAKING.  CERTAINLY
THE RESPONSIBILITY INCUMBENT UPON THIS COURT IN THIS AREA DEMANDS MORE
BY WAY OF FULFILLMENT THAN THE COURT HAS FURNISHED TODAY.  (FN10) 
FOR THE REASONS I HAVE STATED, I CONCUR IN THE JUDGMENT AFFIRMING THE
JUDGMENT OF THE COURT OF APPEALS, EXCEPT TO THE EXTENT I HAVE JUST
INDICATED. 

FN1  CLEARLY SO WHERE THE ACTION WAS PURSUED IN ADMIRALTY.  IN OTHER
FORUMS, AND IN SOME CIRCUMSTANCES, THERE MIGHT ARGUABLY BE SOME ROOM
FOR THE APPLICATION OF SUCH DEFENSIVE FEATURES OF STATE REMEDIAL LAW AS
STATUTES OF LIMITATIONS.  SEE MCALLISTER V. MAGNOLIA PETROLEUM CO., 357
U.S. 221, 224, N. 5. 

FN2  THE PRINCIPLE WAS FINALLY SETTLED FOR THE FEDERAL COURTS SITTING
AT LAW, UNDER THE REGIME OF SWIFT V. TYSON, 16 PET. 1, BY INSURANCE CO.
V. BRAME, 95 U.S. 754.    FN3  THE COURT'S CITATION OF JENSEN AS
LENDING SOME SUPPORT TO ITS POSITION IS NOT WELL TAKEN.  THE LANGUAGE
QUOTED, 244 U.S., AT 216, SAYS NO MORE THAN THAT THE STATE STATUTES ARE
ALLOWED TO PERFORM A FUNCTION IN THIS AREA, WHICH EVERYONE CONCEDES IS
CORRECT.  I FEAR, TOO, THAT IN ITS SOMEWHAT DEPRECATORY REFERENCE TO
THE JENSEN CASE, THE COURT MAY BE IGNORING THE BASICALLY SOUND AND
ENDURING PRINCIPLE OF THAT DECISION, THE NECESSITY THAT THE FEDERAL
MARITIME LAW EXHIBIT INDEPENDENCE OF THE VARYING RULES OF STATE LAW. 
OF COURSE, THERE IS MORE WARRANTED CRITICISM OF JENSEN FOR THE
UNFORTUNATE PRACTICAL RESULTS IT CREATED IN ITS OWN SPECIFIC AREA OF
APPLICATION.  CF. GILMORE AND BLACK, THE LAW OF ADMIRALTY, SEC. 1-17. 

FN4  THE COURT'S QUOTATION FROM GARRETT, "ADMIRALTY COURTS, WHEN
INVOKED TO PROTECT RIGHTS ROOTED IN STATE LAW, ENDEAVOR TO DETERMINE
THE ISSUES IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE STATE," MADE
IN SUPPORT OF ITS CONCLUSION, IS A PATENT BEGGING OF THE QUESTION AT
ISSUE HERE.  THE ISSUE IS WHAT SYSTEM OF LAW GIVES RISE TO THE RIGHTS
AND DUTIES HERE INVOLVED.  NO ONE WOULD DOUBT THAT THE FEDERAL LAW
GIVES RISE TO THE SUBSTANTIVE STANDARDS BY WHICH THE CONDUCT OF THE
PARTIES HERE INVOLVED WOULD HAVE BEEN JUDGED IF SKOVGAARD'S INJURIES
HAD NOT BEEN FATAL.  THE QUESTION IS WHETHER HIS RIGHTS, AND THOSE OF
HIS REPRESENTATIVES IN RESPECT TO THE CONDUCT THAT INJURED AND KILLED
HIM, REMAIN ROOTED IN FEDERAL LAW HERE, WHERE THE SUIT IS FOR DAMAGES
FOR HIS DEATH.  THE COURT'S CONFUSION OF RIGHTS AND DUTIES WITH
REMEDIES IS APPARENT AGAIN HERE. 

FN5  THE AKE CASE, LIKE OTHERS, SUGGESTS THAT THERE MAY POSSIBLY BE
TWO "RIGHTS" INFRINGED BY A TORT CAUSING DEATH - ONE OF THE INJURED
PARTY AND THE OTHER OF HIS BENEFICIARIES.  BUT THIS IS NOT AN
ANALYTICALLY HELPFUL WAY OF VIEWING THE SITUATION.  THE MEASURE OF THE
DUTY OF CONDUCT OWED THE INJURED PARTY IS TYPICALLY THE LIMIT OF THE
SUBSTANTIVE LIABILITY OF THE TORTFEASOR AND OF THE "RIGHT" ENJOYED BY
THE BENEFICIARIES.  IT IS CLEAR THAT WHAT IS MEANT BY THE "RIGHT" OF
THE BENEFICIARIES IS A SPECIAL AND DISTINCT REMEDIAL INCIDENT
ATTRIBUTABLE TO A SINGLE BREACH OF DUTY. 

FN6  JUDGE LEARNED HAND'S OPINION IN GUERRINI V. UNITED STATES, 167
F.2D 352, 354, TOOK THE VIEW THAT THE NEW YORK CASES WERE DECIDED AS
COMPELLED BY THE FEDERAL LAW, AS IS AMPLY EVIDENT FROM THE OPINIONS
THEMSELVES. 

FN7  THE HAMILTON, 207 U.S. 398, CITED BY THE COURT, ONLY HOLDS THAT A
STATE-CREATED DEATH REMEDY COULD BE APPLIED TO A COLLISION ON THE HIGH
SEAS.  IT APPEARS FROM THE OPINION THAT MR. JUSTICE HOLMES CONSIDERED
THE GENERAL FEDERAL MARITIME LAW RELEVANT TO A DETERMINATION OF
LIABILITY UNDER IT.  ID., AT 406-407.  AND IN LA BOURGOGNE, 210 U.S.
95, WHERE RECOVERY MADE USE OF THE FRENCH DEATH REMEDY, LIABILITY WAS
FOUND AS A MATTER OF SUBSTANTIVE LAW WHERE FRANCE WOULD NOT HAVE FOUND
IT.  FINALLY, THE CORSAIR, 145 U.S. 335, HELD THAT THE LOUISIANA DEATH
ACT DID NOT CREATE A MARITIME LIEN.  IT WAS NOT THERE CONSIDERED
WHETHER THE BREACH OF A FEDERALLY DEFINED DUTY COULD HAVE CREATED SUCH
A LIEN, EVEN THOUGH THE BREACH RESULTED IN DEATH, AND IN FACT THE
SOURCE OF THE DUTY BEING ENFORCED THROUGH THE LOUISIANA ACT WAS NOT
DISCUSSED. 

FN8  THE NEW YORK COURT OF APPEALS DID NOT CONSIDER ITS OWN DECISION
IN CALDAROLA, 295 N.Y. 463, 168 N.E.2D 444, AFF'D, 332 U.S. 155, AS
PRECLUSIVE OF ITS DECISION LESS THAN A YEAR LATER IN RILEY V.
AGWILINES, INC., 296 N.Y. 402, 73 N.E.2D 718.  SEE PP. 604-605, SUPRA. 

FN9  DESPITE JUDGE LEARNED HAND'S INITIAL SUGGESTION IN PULEO V. H.E.
MOSS & CO., 159 F.2D 842, 845, QUICKLY RETRACTED IN GUERRINI V. UNITED
STATES, 167 F.2D 352, 355, THE CONSERVATION ACT, 45 STAT. 54, 16 U.S.C.
SEC. 457, IS NOT RELEVANT TO THE PROBLEM HERE.  THAT ACT MAKES
APPLICABLE STATE DEATH ACTS (AS WELL AS STATE PERSONAL INJURY LAW
GENERALLY) TO TORTS "WITHIN A NATIONAL PARK OR OTHER PLACE SUBJECT TO
THE EXCLUSIVE JURISDICTION OF THE UNITED STATES."  THE STATE
TERRITORIAL WATERS, WHILE WITHIN THE COGNIZANCE OF THE FEDERAL MARITIME
LAW, ARE ALSO SUBJECT TO THE JURISDICTION OF THE STATES, TOOMER V.
WITSELL, 334 U.S. 385, 393, AND HENCE ONE NEED GO NO FURTHER THAN ITS
TERMS TO FIND THE ACT INAPPOSITE. 

FN10  I MIGHT LIKEWISE SAY THAT EVEN IF THE SOURCE OF SUBSTANTIVE LAW
HERE BE CONSIDERED AS STATE LAW, IT HARDLY WOULD COMPORT WITH THE
RESPONSIBILITY OF THE FEDERAL COURTS FOR THEM TO SEND THE PARTIES TO AN
ADMIRALTY ACTION BEFORE THEM TO THE STATE COURTS TO OBTAIN AN
ADJUDICATION OF THE LEGAL ISSUES INVOLVED.  THOUGH THE COURT DOES NOT
MAKE SUCH A DISPOSITION HERE, CERTAIN INCLINATIONS IN THIS DIRECTION
ARE DISCERNIBLE IN ITS OPINION.  THE WORDS OF CHIEF JUSTICE STONE IN
MEREDITH V. WINTER HAVEN, 320 U.S. 228, MIGHT FURNISH THE LESSON HERE;
WE MUST RECOLLECT THAT JURISDICTION CREATES THE DUTY OF DECISION, AND
THAT, LIKE THE DIVERSITY, THE ADMIRALTY JURISDICTION "WAS NOT CONFERRED
FOR THE BENEFIT OF THE FEDERAL COURTS OR TO SERVE THEIR CONVENIENCE." 
ID., AT 234. 
..END :
























UNITED NEW YORK AND NEW JERSEY SANDY HOOK PILOTS ASSOCIATION V. HALECKI
358 U.S. 613 


NO. 56.  ARGUED OCTOBER 23, 1958 - DECIDED FEBRUARY 24, 1959 - 251 F.2D
708, JUDGMENT VACATED AND CAUSE REMANDED. 


WHILE A PILOT BOAT WAS BEING OVERHAULED BY A CONTRACTOR AT A SHIPYARD
IN NEW JERSEY, TWO EMPLOYEES OF A SPECIALIZED SUBCONTRACTOR WENT ABOARD
TO CLEAN THE GENERATORS WITH CARBON TETRACHLORIDE, A TASK WHICH COULD
BE PERFORMED ONLY WHEN THERE WAS NO ONE ELSE ON BOARD THE SHIP AND
WHICH REQUIRED THE USE OF SPECIAL EQUIPMENT AND SPECIAL SAFETY
PRECAUTIONS.  THOUGH SUCH SPECIAL EQUIPMENT WAS USED AND THE USUAL
PRECAUTIONS WERE TAKEN, ONE OF THESE EMPLOYEES DIED OF CARBON
TETRACHLORIDE POISONING.  HIS ADMINISTRATRIX BROUGHT THIS ACTION FOR
DAMAGES AGAINST THE OWNERS OF THE PILOT BOAT IN A FEDERAL DISTRICT
COURT, BASING JURISDICTION ON DIVERSITY OF CITIZENSHIP.  UNDER
INSTRUCTIONS THAT EITHER UNSEAWORTHINESS OF THE VESSEL OR NEGLIGENCE
WOULD RENDER THE DEFENDANTS LIABLE AND THAT CONTRIBUTORY NEGLIGENCE ON
THE PART OF THE DECEDENT WOULD SERVE ONLY TO MITIGATE DAMAGES, A JURY
RETURNED A GENERAL VERDICT FOR THE ADMINISTRATRIX, AND JUDGMENT WAS
ENTERED THEREON.  THE COURT OF APPEALS AFFIRMED, HOLDING THAT THE NEW
JERSEY WRONGFUL DEATH ACT INCORPORATES LIABILITY FOR UNSEAWORTHINESS,
AS DEVELOPED BY FEDERAL LAW, AND ADOPTS THE ADMIRALTY RULE OF
COMPARATIVE NEGLIGENCE WHEN DEATH OCCURS AS A RESULT OF TORTIOUS
CONDUCT UPON THE NAVIGABLE WATERS OF THAT STATE.  HELD: 

1.  THE RIGHT OF RECOVERY DEPENDED UPON THE INTERPRETATION OF NEW
JERSEY LAW; AND THIS COURT ACCEPTS THE COURT OF APPEALS' DETERMINATION
OF THE EFFECT WHICH NEW JERSEY LAW WOULD ACCORD TO THE DECEDENT'S
CONTRIBUTORY NEGLIGENCE.  THE TUNGUS V. SKOVGAARD, ANTE, P. 588.  P.
615. 

2.  EVEN IF THE WRONGFUL DEATH ACT OF NEW JERSEY BE INTERPRETED AS
IMPORTING THE FEDERAL MARITIME LAW OF UNSEAWORTHINESS, THE COURT OF
APPEALS ERRED IN HOLDING THAT THE CIRCUMSTANCES OF THIS CASE WERE SUCH
AS TO IMPOSE LIABILITY UNDER THAT DOCTRINE.  PP. 615-618. 

3.  SINCE THE DOCTRINE OF UNSEAWORTHINESS WAS NOT APPLICABLE, IT WAS
ERROR TO INSTRUCT THE JURY THAT THE SHIPOWNER COULD BE HELD LIABLE EVEN
IF THE JURY SHOULD FIND THAT THE SHIPOWNER HAD EXERCISED REASONABLE
CARE.  P. 618. 

4.  AS TO THE CLAIM BASED ON NEGLIGENCE, THE EVIDENCE CREATED AN
ISSUE OF FACT TO BE DETERMINED BY THE JURY.  PP. 618-619. 

5.  A NEW TRIAL WILL BE REQUIRED, SINCE THERE IS NO WAY OF KNOWING
WHETHER THE INVALID CLAIM OF UNSEAWORTHINESS WAS THE SOLE BASIS FOR THE
JURY'S VERDICT.  P. 615. 

UNITED NEW YORK AND NEW JERSEY SANDY HOOK PILOTS ASSOCIATION ET AL. V.
HALECKI, ADMINISTRATRIX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE ADMINISTRATRIX OF THE ESTATE OF WALTER J. HALECKI BROUGHT THIS
ACTION AGAINST THE OWNERS OF THE PILOT BOAT NEW JERSEY TO RECOVER
DAMAGES FOR HALECKI'S DEATH, ALLEGEDLY CAUSED BY INHALATION OF CARBON
TETRACHLORIDE FUMES WHILE WORKING ABOARD THAT VESSEL.  THE ACTION,
BASED UPON THE NEW JERSEY WRONGFUL DEATH ACT, N.J. STAT. ANN. 2A:31-1,
WAS BROUGHT IN THE FEDERAL COURT BY REASON OF DIVERSITY OF
CITIZENSHIP.  UNDER INSTRUCTIONS THAT EITHER UNSEAWORTHINESS OF THE
VESSEL OR NEGLIGENCE WOULD RENDER THE DEFENDANTS LIABLE AND THAT
CONTRIBUTORY NEGLIGENCE ON THE PART OF THE DECEDENT WOULD SERVE ONLY TO
MITIGATE DAMAGES, A JURY RETURNED A VERDICT FOR THE ADMINISTRATRIX,
UPON WHICH JUDGMENT WAS ENTERED.  THE COURT OF APPEALS AFFIRMED,
HOLDING THAT THE NEW JERSEY WRONGFUL DEATH ACT INCORPORATES LIABILITY
FOR UNSEAWORTHINESS, AS DEVELOPED BY FEDERAL LAW, AND ADOPTS THE
ADMIRALTY RULE OF COMPARATIVE NEGLIGENCE WHEN DEATH OCCURS AS A RESULT
OF TORTIOUS CONDUCT UPON THE NAVIGABLE WATERS OF THAT STATE.  251 F.2D
708. 

FOR THE REASONS STATED IN THE TUNGUS V. SKOVGAARD, DECIDED TODAY,
ANTE, P. 588, WE HOLD THAT THE COURT OF APPEALS WAS CORRECT IN VIEWING
ITS BASIC TASK AS ONE OF INTERPRETING THE LAW OF NEW JERSEY.   FOR
REASONS ALSO STATED IN TUNGUS, WE ACCEPT IN THIS CASE THE COURT OF
APPEALS' DETERMINATION OF THE EFFECT WHICH NEW JERSEY LAW WOULD ACCORD
TO THE DECEDENT'S CONTRIBUTORY NEGLIGENCE.  BUT EVEN IF THE WRONGFUL
DEATH ACT OF NEW JERSEY BE INTERPRETED AS IMPORTING THE FEDERAL
MARITIME LAW OF UNSEAWORTHINESS, THE COURT WAS IN ERROR IN HOLDING THAT
THE CIRCUMSTANCES OF THIS CASE WERE SUCH AS TO IMPOSE LIABILITY UNDER
THAT DOCTRINE. 

THE ESSENTIAL FACTS ARE NOT IN DISPUTE.  IN SEPTEMBER OF 1951 THE
VESSEL WAS BROUGHT TO JERSEY CITY, NEW JERSEY, FOR ITS ANNUAL OVERHAUL
AT THE SHIPYARD OF RODERMOND INDUSTRIES, INC. ONE OF THE JOBS TO BE
DONE WAS THE DISMANTLING AND OVERHAUL OF THE SHIP'S GENERATORS,
REQUIRING, AMONG OTHER THINGS, THAT THEY BE SPRAYED WITH CARBON
TETRACHLORIDE.  SINCE RODERMOND INDUSTRIES WAS NOT EQUIPPED TO DO
ELECTRICAL WORK, THIS JOB WAS SUBCONTRACTED TO K.&S. ELECTRICAL
COMPANY, HALECKI'S EMPLOYER. 

THE GENERATORS WERE IN THE SHIP'S ENGINE ROOM, AND BOTH HALECKI AND
HIS FOREMAN, DONALD DOIDGE, WERE AWARE OF THE NECESSITY OF TAKING
SPECIAL PRECAUTIONS IN UNDERTAKING THE JOB OF SPRAYING THEM WITH
TETRACHLORIDE, A TOXIC COMPOUND.  (FN1)  THEY ARRANGED TO DO THE WORK
ON SATURDAY, A DAY CHOSEN BECAUSE, AS DOIDGE TESTIFIED, "WE KNOW IT HAS
TO BE DONE WHEN THERE IS NOBODY ELSE ON BOARD SHIP." 

HALECKI AND DOIDGE CAME ABOARD ON THE APPOINTED DAY, EQUIPPED WITH
GAS MASKS.  THEY FOUND ONLY A WATCHMAN, TO WHOM THEY GAVE INSTRUCTIONS
NOT TO PERMIT ANYONE TO ENTER THE ENGINE ROOM.  BEFORE STARTING THE JOB
THEY RIGGED AN AIR HOSE UNDERNEATH THE GENERATORS TO BLOW THE FUMES
AWAY FROM THE MAN SPRAYING.  A HIGH-COMPRESSION BLOWER WAS PLACED SO
THAT IT WOULD EXHAUST FOUL AIR THROUGH ONE OF THE TWO OPEN DOORWAYS. 
THESE PIECES OF EQUIPMENT BELONGED TO RODERMOND INDUSTRIES AND HAD BEEN
BROUGHT ABOARD BY DOIDGE AND HALECKI THE PREVIOUS DAY.  TOGETHER WITH
THE ENGINE ROOM'S REGULAR VENTILATING SYSTEM, THE AIR HOSES AND BLOWER
WERE OPERATED BY ELECTRICAL POWER SUPPLIED FROM THE DOCK.  HALECKI DID
MOST OF THE SPRAYING, WORKING FOR 10- OR 15-MINUTE PERIODS WITH
INTERVENING RESTS OF EQUAL LENGTH.  THE VENTILATING EQUIPMENT WAS IN
OPERATION, AND HALECKI WORE A GAS MASK DURING THE ENTIRE PERIOD THAT HE
WORKED.  HE BECAME SICK THE NEXT DAY AND DIED TWO WEEKS LATER OF CARBON
TETRACHLORIDE POISONING. 

THE EVENTFUL DEVELOPMENT OF THE DOCTRINE OF UNSEAWORTHINESS IN THIS
COURT IS FAMILIAR HISTORY.  ALTHOUGH OF DUBIOUS ANCESTRY, (FN2) THE
DOCTRINE WAS BORN WITH THE OSCEOLA (FN3) AND EMERGED FULL-BLOWN 40
YEARS LATER IN MAHNICH V. SOUTHERN S.S. CO. (FN4) AS AN ABSOLUTE AND
NONDELEGABLE DUTY WHICH THE OWNER OF A VESSEL OWES TO THE MEMBERS OF
THE CREW WHO MAN HER.  THE JUSTIFICATION FOR THIS RIGID STANDARD WAS
CLEARLY STATED IN THE COURT'S OPINION IN MAHNICH: 

"HE (THE SEAMAN) IS SUBJECT TO THE RIGOROUS DISCIPLINE OF THE SEA,
AND ALL THE CONDITIONS OF HIS SERVICE CONSTRAIN HIM TO ACCEPT, WITHOUT
CRITICAL EXAMINATION AND WITHOUT PROTEST, WORKING CONDITIONS AND
APPLIANCES AS COMMANDED BY HIS SUPERIOR OFFICERS."  321 U.S. 96, AT
103. 

WITH THE NATURE OF THE DUTY THUS DEFINED, IT REMAINED FOR TWO OTHER
DECISIONS OF THE COURT TO AMPLIFY ITS SCOPE.  SEAS SHIPPING CO. V.
SIERACKI AND POPE & TALBOT V. HAWN (FN5) MADE CLEAR THAT THE SHIPOWNER
COULD NOT ESCAPE LIABILITY FOR UNSEAWORTHINESS BY DELEGATING TO OTHERS
WORK TRADITIONALLY DONE BY MEMBERS OF THE CREW.  WHETHER THEIR CALLING
BE LABELED "STEVEDORE," "CARPENTER," OR SOMETHING ELSE, THOSE WHO DID
THE "TYPE OF WORK" TRADITIONALLY DONE BY SEAMEN, AND WERE THUS RELATED
TO THE SHIP IN THE SAME WAY AS SEAMEN "WHO HAD BEEN OR WHO WERE ABOUT
TO GO ON A VOYAGE," WERE ENTITLED TO A SEAWORTHY SHIP.  SEE 346 U.S.,
AT 413. 

NEITHER THESE DECISIONS NOR THE POLICY THAT UNDERLIES THEM CAN
JUSTIFY EXTENSION OF LIABILITY FOR UNSEAWORTHINESS TO THE DECEDENT IN
THE PRESENT CASE.  THE WORK THAT HE DID WAS IN NO WAY "THE TYPE OF
WORK" TRADITIONALLY DONE BY THE SHIP'S CREW.  IT WAS WORK THAT COULD
NOT EVEN BE PERFORMED UPON A SHIP READY FOR SEA, BUT ONLY WHEN THE SHIP
WAS "DEAD" WITH ITS GENERATORS DISMANTLED.  MOREOVER, IT WAS THE WORK
OF A SPECIALIST, REQUIRING SPECIAL SKILL AND SPECIAL EQUIPMENT -
PORTABLE BLOWERS, AIR HOSES, GAS MASKS, AND TANKS OF CARBON
TETRACHLORIDE, ALL BROUGHT ABOARD THE VESSEL FOR THIS SPECIAL PURPOSE,
AND NONE CONNECTED WITH A SHIP'S SEAGOING OPERATIONS.  (FN6)  INDEED,
THE WORK WAS SO SPECIALIZED THAT THE REPAIR YARD ENGAGED TO OVERHAUL
THE VESSEL WAS NOT ITSELF EQUIPPED TO PERFORM IT, BUT HAD TO ENLIST THE
SERVICES OF A SUBCONTRACTOR.  A MEASURE OF HOW FOREIGN WAS THE
DECEDENT'S WORK TO THAT ORDINARILY PERFORMED BY THE SHIP'S CREW IS THAT
IT COULD BE PERFORMED ONLY AT A TIME WHEN ALL THE MEMBERS OF THE CREW
WERE OFF THE SHIP. 

IT AVAILS NOTHING TO SAY THAT THE DECEDENT WAS AN "ELECTRICIAN," AND
THAT MANY MODERN SHIPS CARRY ELECTRICIANS IN THEIR CREW.  POPE & TALBOT
V. HAWN EXPLICITLY TEACHES THAT SUCH LABELS IN THIS DOMAIN ARE
MEANINGLESS.  SEE 346 U.S., AT 413.  IT IS SCARCELY MORE HELPFUL TO
INDULGE IN THE EUPHEMISM THAT THE DECEDENT WAS "CLEANING" PART OF THE
SHIP, AND TO SAY THAT IT IS A TRADITIONAL DUTY OF SEAMEN TO KEEP THEIR
SHIP CLEAN.  THE BASIC FACT IS, IN THE APT WORDS OF JUDGE LUMBARD'S
DISSENTING OPINION IN THE COURT OF APPEALS, THAT THE DECEDENT "WAS NOT
DOING WHAT ANY CREW MEMBER HAD EVER DONE ON THIS SHIP OR ANYWHERE ELSE
IN THE WORLD SO FAR AS WE ARE INFORMED."  251 F.2D 708, AT 715.  TO
EXTEND LIABILITY FOR UNSEAWORTHINESS TO THE DECEDENT HERE WOULD DISTORT
THE LAW OF MAHNICH, OF HAWN AND OF SIERACKI BEYOND RECOGNITION.  WE
THEREFORE HOLD THAT IT WAS ERROR TO INSTRUCT THE JURY THAT THE
SHIPOWNER COULD BE HELD LIABLE IN THIS CASE EVEN IF THEY SHOULD FIND
THAT THE SHIPOWNER HAD EXERCISED REASONABLE CARE.  (FN7) 

AS TO THE CLAIM BASED UPON NEGLIGENCE, FOR WHICH THE NEW JERSEY
WRONGFUL DEATH ACT CLEARLY GIVES A RIGHT OF ACTION, (FN8) WE AGREE WITH
THE COURT OF APPEALS THAT "THE EVIDENCE CREATED AN ISSUE THAT COULD BE
DECIDED ONLY BY A VERDICT."  THE DEFENDANTS OWED A DUTY OF EXERCISING
REASONABLE CARE FOR THE SAFETY OF THE DECEDENT.  THEY WERE CHARGED WITH
KNOWLEDGE THAT CARBON TETRACHLORIDE WAS TO BE USED IN THE CONFINED
SPACES OF THE ENGINE ROOM.  IT WAS FOR THE TRIERS OF FACT TO DETERMINE
WHETHER THE DEFENDANTS WERE RESPONSIBLY NEGLIGENT IN PERMITTING OR
AUTHORIZING THE METHOD OR MANNER OF ITS USE. 

IT FOLLOWS FROM WHAT HAS BEEN SAID THAT A NEW TRIAL WILL BE REQUIRED,
FOR THERE IS NO WAY TO KNOW THAT THE INVALID CLAIM OF UNSEAWORTHINESS
WAS NOT THE SOLE BASIS FOR THE VERDICT.  VACATED AND REMANDED. 

FN1  CARBON TETRACHLORIDE, A SOMEWHAT VOLATILE COMPOUND FIVE TIMES
HEAVIER THAN AIR, IS TOXIC TO HUMANS IF PRESENT IN THE ATMOSPHERE IN
CONCENTRATIONS OF MORE THAN 100 PARTS TO 1,000,000.  IT THEREFORE IS
ESSENTIAL WHEN WORKING WITH THIS CHEMICAL TO PROVIDE ADEQUATE
VENTILATION, A TASK THAT IS COMPLICATED BECAUSE THE DENSITY OF THE
COMPOUND MAY RESULT IN A HIGH CONCENTRATION OF THE FUMES IN THE LOWER
PORTIONS OF AN ENCLOSED AREA. 

FN2  SEE GILMORE AND BLACK, THE LAW OF ADMIRALTY, P. 316. 

FN3 189 U.S. 158, 175. 

FN4  321 U.S. 96. 

FN5  328 U.S. 85 AND 346 U.S. 406.  SEE ALSO ALASKA S.S. CO. V.
PETTERSON, 347 U.S. 396, AND ROGERS V. UNITED STATES LINES, 347 U.S.
984. 

FN6  IT WAS ESTABLISHED THAT THE SHIP'S OWN VENTILATING SYSTEM WAS
ENTIRELY ADEQUATE TO PERFORM ITS INTENDED FUNCTION OF VENTILATING THE
ENGINE ROOM WHILE THE SHIP WAS IN REGULAR OPERATION. 

FN7  WE DO NOT REACH THE QUESTION, DISCUSSED IN THE AMICUS CURIAE
BRIEF OF THE UNITED STATES, WHETHER A SHIPOWNER CAN EVER BE LIABLE FOR
THE UNSEAWORTHINESS OF A VESSEL "TO A SHORE-BASED WORKER WHO PERFORMS
LABOR ON A SHIP WHICH IS NOT READY FOR A VOYAGE BUT IS OUT OF
NAVIGATION AND DOCKED IN A PRIVATE SHIPYARD FOR ITS ANNUAL OVERHAUL AND
REPAIR." 

FN8  N.J. STAT. ANN. 2A:31-1; SEE THE TUNGUS V. SKOVGAARD, ANTE, P.
588. 

FOR CONCURRING OPINION OF MR. JUSTICE FRANKFURTER, SEE ANTE, P. 597. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

ON SEPTEMBER 29, 1951, THE PILOT BOAT NEW JERSEY WAS STANDING AT A
PIER IN THE JERSEY CITY REPAIR YARD OF A MARINE OVERHAUL AND REPAIR
FIRM FOR ITS ANNUAL OVERHAUL.  THE OVERHAUL JOB WAS SCHEDULED TO TAKE
THREE WEEKS, AND THE 29TH WAS THE SATURDAY AFTER THE FIRST WEEK OF
WORK.  CREW MEMBERS PARTICIPATED IN MAINTENANCE WORK ON THE VESSEL
DURING THIS PERIOD, ON A FIVE-DAY-WORK-WEEK BASIS.  CLEANING THE
VESSEL'S GENERATORS WAS THE WORK SCHEDULED FOR THE 29TH, AND SINCE THE
CLEANING WORK WAS TO BE DONE WITH CARBON TETRACHLORIDE, KNOWN TO HAVE
TOXIC PROPERTIES, A SATURDAY WAS CHOSEN FOR THE JOB TO MINIMIZE THE
NUMBER OF PERSONS ABOARD THE VESSEL.  WALTER HALECKI, RESPONDENT'S
DECEDENT, WAS AN EMPLOYEE OF AN ELECTRICAL FIRM DOING THE CLEANING JOB
AS A SUBCONTRACTOR TO THE GENERAL OVERHAUL CONTRACTOR; HE AND ANOTHER
EMPLOYEE OF THE SUBCONTRACTOR CAME ABOARD AND SPENT THE DAY SPRAYING
THE GENERATORS IN THE SHIP'S ENGINE ROOM.  HALECKI DID MOST OF THE WORK
IN THE ENGINE ROOM.   THE MEN WORE GAS MASKS AND FROM TIME TO TIME REST
PERIODS ABOVE DECKS WERE OBSERVED.  AT THE END OF THE DAY, HALECKI
COMPLAINED OF AN ODD TASTE IN HIS MOUTH, AND HE WAS THEREAFTER ADMITTED
TO A HOSPITAL WHERE HE DIED OF CARBON TETRACHLORIDE POISONING. 

HIS WIDOW COMMENCED THIS ACTION AGAINST THE VESSEL'S OWNERS IN THE
FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
PREDICATING JURISDICTION ON DIVERSITY OF CITIZENSHIP.  THE COMPLAINT
ALLEGED UNSEAWORTHINESS OF THE VESSEL IN THAT HARMFUL CONCENTRATIONS OF
CARBON TETRACHLORIDE WERE ALLOWED TO STAND IN THE ENGINE ROOM,
UNREMOVED EITHER BY THE VESSEL'S ORDINARY VENTILATION SYSTEM OR BY
AUXILIARY EQUIPMENT BROUGHT ABOARD THE VESSEL BY THE WORKMEN FOR THE
PURPOSE.  IT FURTHER ALLEGED NEGLIGENCE IN THE FAILURE TO USE
REASONABLE CARE IN FURNISHING THE DECEDENT, AS A BUSINESS INVITEE, A
SAFE PLACE TO WORK.  THE NEW JERSEY WRONGFUL DEATH ACT WAS PLEADED BY
THE PLAINTIFF TO SUPPORT THESE CLAIMS.  THE CASE WENT TO THE JURY ON
BOTH GROUNDS, AND A GENERAL VERDICT WAS RETURNED FOR THE PLAINTIFF;
JUDGMENT THEREON WAS AFFIRMED BY THE COURT OF APPEALS. 

THE COURT TODAY REVERSES, HOLDING THAT THE VERDICT, WHICH MUST OF
COURSE BE SUPPORTABLE ON EACH ASPECT IN WHICH THE CASE WAS LEFT TO THE
JURY, CANNOT BE SUPPORTED ON THE GROUNDS OF UNSEAWORTHINESS.  THE
COURT, FOLLOWING ITS DECISION IN THE TUNGUS V. SKOVGAARD, ANTE, P. 588,
HOLDS THAT THE BASIC SOURCE OF LAW IN THIS CASE, SINCE IT IS A WRONGFUL
DEATH CASE, IS THE LAW OF NEW JERSEY.  MY SEPARATE OPINION IN THAT CASE
SETS FORTH THE BASIS ON WHICH I THINK THAT THAT HOLDING IS ERRONEOUS. 
THE COURT IN THE PRESENT CASE HOLDS, APPARENTLY AS A MATTER OF FEDERAL
LAW, THAT THE VESSEL DID NOT OWE ANY DUTY OF SEAWORTHINESS TO THE
RESPONDENT'S DECEDENT.  PARADOX MAY BE FOUND IN THIS AFTER THE COURT'S
CHARACTERIZATION OF THE GOVERNING LAW AS STATE LAW, AND THERE WELL MAY
BE CONFUSION AS TO THE PRECISE ROLE THAT FEDERAL LAW IS TO PLAY IN
THESE MARITIME DEATH ACTIONS AS A RESULT OF THE COURT'S HOLDING.  (FN1)
BUT IN ANY EVENT, SINCE I VIEW THE UNSEAWORTHINESS QUESTION AS A
MATTER OF FEDERAL LAW, AS APPARENTLY THE COURT DOES HERE, I SHALL SET
FORTH BRIEFLY THE GROUNDS ON WHICH I THINK IT HAS CLEARLY ERRED IN THE
LIGHT OF THE DECISIONS IN SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85;
POPE & TALBOT, INC., V. HAWN, 346 U.S. 406, AND ALASKA S.S. CO. V.
PETTERSON, 347 U.S. 396, NONE OF WHICH THE COURT TODAY PURPORTS TO
OVERRULE. 

IN SEAS SHIPPING CO. V. SIERACKI, THE QUESTION WAS WHETHER THE DUTY
OF MAINTAINING A SEAWORTHY VESSEL EXTENDED TO PERSONS WHO PERFORMED THE
SHIP'S SERVICE ABOARD THE VESSEL BUT WHO WERE NOT EMPLOYED DIRECTLY BY
THE SHIPOWNER.  THE COURT CONCLUDED THAT THIS DUTY WAS "NOT CONFINED TO
SEAMEN WHO PERFORM THE SHIP'S SERVICE UNDER IMMEDIATE HIRE TO THE
OWNER, BUT EXTENDS TO THOSE WHO RENDER IT WITH HIS CONSENT OR BY HIS
ARRANGEMENT."  328 U.S., AT 95.  THE COURT DECLARED THAT THE "LIABILITY
ARISES AS AN INCIDENT, NOT MERELY OF THE SEAMAN'S CONTRACT, BUT OF
PERFORMING THE SHIP'S SERVICE WITH THE OWNER'S CONSENT."  ID., AT 97. 
THE COURT QUOTED WITH SPECIFIC APPROVAL THE LANGUAGE OF THE COURT BELOW
IN THAT CASE:  "WHEN A MAN IS PERFORMING A FUNCTION ESSENTIAL TO
MARITIME SERVICE ON BOARD A SHIP THE FORTUITOUS CIRCUMSTANCES OF HIS
EMPLOYMENT BY THE SHIPOWNER OR A STEVEDORING CONTRACTOR SHOULD NOT
DETERMINE THE MEASURE OF HIS RIGHTS."  IBID.  THE COURT STRESSED THAT
THE DIVISION OF LABOR DUE TO INCREASED SPECIALIZATION DID NOT OPERATE
TO DIMINISH THE SCOPE OF THE DUTY OF MAINTAINING A SEAWORTHY VESSEL. 
THE SHIPOWNER, IT WAS SAID, "IS AT LIBERTY TO CONDUCT HIS BUSINESS BY
SECURING THE ADVANTAGES OF SPECIALIZATION IN LABOR AND SKILL BROUGHT
ABOUT BY MODERN DIVISIONS OF LABOR.  HE IS NOT AT LIBERTY BY DOING THIS
TO DISCARD HIS TRADITIONAL RESPONSIBILITIES."  ID., AT 100. 

IN POPE & TALBOT, INC., V. HAWN, THE SIERACKI DOCTRINE WAS REAFFIRMED
AND APPLIED IN ANOTHER FACT SITUATION, AND IT WAS POINTED OUT THAT THE
PROTECTION OF A SHIPBOARD WORKER BY THE DUTY OF SEAWORTHINESS WAS NOT
BASED ON THE TITLE OF THE POSITION HE OCCUPIED IN THE DOING OF THE
SHIPBOARD WORK BUT "ON THE TYPE OF WORK HE DID AND ITS RELATIONSHIP TO
THE SHIP AND TO THE HISTORIC DOCTRINE OF SEAWORTHINESS."  346 U.S., AT
413. 

TODAY THE COURT HOLDS THAT NOT ALL WORKERS ENGAGED IN DOING "SHIP'S
SERVICE" ABOARD A VESSEL ARE ENTITLED TO THE WARRANTY.  IT ESSAYS
DISTINCTIONS AS TO WHETHER THE SHIP'S POWER IS FUNCTIONING AT THE TIME
OF THE ACCIDENT, WHETHER THE SHIP IS READY FOR AN IMMEDIATE VOYAGE. 
(FN2)  IT STRESSES THAT THE WORK DONE BY HALECKI WAS SPECIALIZED WORK
ON A MODERN VESSEL, OF A SORT WHICH IS NOW HABITUALLY CONTRACTED OUT. 
BUT IT TAKES ONLY A CASUAL REFERENCE TO THE PRINCIPLES OF THE SIERACKI
DECISION TO BE REMINDED THAT THE FACT THAT A WORKER IS DOING
SPECIALIZED WORK ON A MODERN VESSEL UNDER A CONTRACT IS NO REASON FOR
EXEMPTING HIM FROM THE SCOPE OF THE SEAWORTHINESS DUTY'S "HUMANITARIAN
POLICY," 328 U.S., AT 95; IT IS RATHER ONE OF THE VERY BASES ON WHICH
THE SIERACKI DOCTRINE WAS BOTTOMED.  THE COURT REFERS TO THE EXTENSIVE
SPECIALIZED EQUIPMENT THE CONTRACTOR WAS REQUIRED TO BRING ABOARD, BUT
IN PETTERSON THIS WAS, OVER DISSENT, REJECTED AS A BASIS FOR
DISTINCTION OF SIERACKI, 347 U.S. 396, 400.  NOR WOULD ONE THINK THAT
THE FACT THAT THE WORK BEING DONE POSED DANGERS TO A DEGREE WHICH MADE
IT DESIRABLE THAT THE CREW MEMBERS NOT BE PRESENT ABOARD THE VESSEL
MILITATED AGAINST THE EXISTENCE OF THE SEAWORTHINESS DUTY.  THE DUTY
WAS HELD IN SIERACKI TO EXTEND TO OTHERS THAN MEMBERS OF THE CREW
PRECISELY TO AVOID THE CONSEQUENCE THAT THE SHIPOWNER WOULD ESCAPE HIS
RESPONSIBILITIES BY CONTRACTING OUT DANGEROUS WORK. 

THE COURT DECLINES TO FIND THAT HALECKI WAS ENGAGED IN SHIP'S SERVICE
OF A SORT THAT WOULD ENTITLE HIM TO THE WARRANTY BECAUSE THE PRECISE
SORT OF WORK HE WAS DOING IS ONE WHICH IS HABITUALLY CONTRACTED OUT. 
IT REJECTS CLEAR CATEGORICAL ANALOGIES BETWEEN HALECKI'S WORK AND THAT
HISTORICALLY DONE BY CREW MEMBERS, WITH THE OBSERVATION THAT THE WORK
HALECKI WAS DOING WAS DIFFERENT BECAUSE THE VESSEL WAS MODERN, HAD
COMPLICATED EQUIPMENT, AND REQUIRED SPECIALIZED TREATMENT EFFICIENTLY
TO PERFORM THE WORK ON IT.  THUS THE WHOLE POINT OF THE SIERACKI
DECISION IS TURNED AROUND, AND TODAY'S SHIPOWNER ESCAPES HIS ABSOLUTE
DUTY BECAUSE HIS VESSEL IS MODERN AND OUTFITTED WITH COMPLICATED AND
DANGEROUS EQUIPMENT, AND BECAUSE A PATTERN OF CONTRACTING OUT A SORT OF
WORK ON IT HAS BECOME ESTABLISHED. 

THE COURT GIVES NO REASON BASED IN POLICY FOR ITS INVERSION OF THE
SIERACKI PRINCIPLE.  I FEAR ALSO THAT IT GIVES NO WORKABLE GUIDE TO THE
LOWER COURTS IN THIS ACTIVELY LITIGATED FIELD OF FEDERAL LAW.  THEY MAY
NOW HAVE THE IMPRESSION THAT SOME DEGREE OF SPECIALIZATION IN THE TASKS
PERFORMED BY THE INJURED SHIPBOARD WORKER DISQUALIFIES HIM FROM THE
SCOPE OF THE SHIPOWNER'S DUTY, BUT, FURTHER THAN THAT, THERE IS LEFT
UNCERTAIN THE EXTENT TO WHICH THE DECISIONS OF THE LOWER COURTS BASED
ON THE SIERACKI AND HAWN CASES ARE NOW UNDER A CLOUD.  (FN3)  AND SO
CONFUSION IS LEFT TO BREED FURTHER LITIGATION IN AN ALREADY HEAVILY
LITIGATED AREA OF THE LAW. 

I WOULD ADHERE TO THE PRINCIPLES OF SIERACKI AND HAWN AND AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS. 

FN1  FURTHER PARADOX MAY BE FOUND IN THE COURT'S ACCEPTANCE, WITHOUT
INDEPENDENT EXAMINATION, OF THE VIEW OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT AS TO THE DEFENSES AVAILABLE UNDER THE NEW JERSEY
WRONGFUL DEATH ACT AS APPLICABLE TO THE NEGLIGENCE CLAIM HERE.  THE
COURT OF APPEALS HELD CONTRIBUTORY NEGLIGENCE UNAVAILABLE AS AN
ABSOLUTE DEFENSE.  THE USUAL REASONS GIVEN FOR DEFERRING TO THE COURTS
OF APPEALS ON STATE LAW QUESTIONS MAY NOT BE ENTIRELY APPLICABLE TO A
CIRCUIT NOT EMBRACING THE STATE IN QUESTION.  IN THE TUNGUS CASE, ANTE,
P. 588, THE COURT TODAY AFFIRMS A JUDGMENT OF THE COURT OF APPEALS FOR
THE THIRD CIRCUIT (WHICH INCLUDES NEW JERSEY) LEAVING OPEN THIS
IDENTICAL ISSUE FOR THE DISTRICT COURT.  IT WOULD APPEAR CLEAR, IN THE
LIGHT OF THE COURT'S DISPOSITION OF THIS CASE, WHAT THE ANSWER ON THIS
ISSUE MUST BE IN THE TUNGUS CASE. 

FN2  A BRIEF FILED AS AMICUS CURIAE BY THE UNITED STATES URGES THAT
THE DOCTRINE OF SEAWORTHINESS IMPORTS ONLY A WARRANTY OF SEAWORTHINESS
FOR A VOYAGE, AND THAT SINCE THE SHIP WAS NOT ABOUT TO ENGAGE IN A
VOYAGE, THE DUTY WAS OWED TO NO ONE AT THE TIME OF THE ACCIDENT.  THIS
THEORY, LIKE THE COURT'S, WOULD RESULT IN AN UNWARRANTED RESTRICTION OF
THE SIERACKI DOCTRINE, PARTICULARLY SINCE THERE WERE CREW MEMBERS
WORKING ABOARD SHIP ON A REGULAR WORK WEEK BASIS DURING THE PERIOD IN
QUESTION WHO WOULD BE DENIED THE DOCTRINE'S PROTECTION UNDER THE
GOVERNMENT'S THEORY.  THE GOVERNMENT'S ARGUMENT IS BASED PRIMARILY ON
DESPER V. STARVED ROCK FERRY CO., 342 U.S. 187, WHERE THERE WAS NO
ISSUE OF UNSEAWORTHINESS AND THE VESSELS HAD BEEN HAULED UP ON LAND FOR
THE WINTER.  IN ROGERS V. UNITED STATES LINES, 347 U.S. 984, THE DUTY
OF SEAWORTHINESS WAS HELD TO BE PRESENT IN REGARD TO A VESSEL WHICH HAD
COMPLETED A VOYAGE AND WHICH WAS NOT SHOWN TO BE ABOUT TO EMBARK ON A
NEW VOYAGE. 

FN3  CASES IN WHICH HOLDINGS OF THE LOWER COURTS HAVE INTERPRETED
THIS COURT'S DECISIONS IN THE SIERACKI AND HAWN CASES AS EXTENDING THE
DUTY OF SEAWORTHINESS TO INDEPENDENT CONTRACTORS' EMPLOYEES
SUBSTANTIALLY SIMILARLY CIRCUMSTANCED TO HALECKI INCLUDE TORRES V. THE
KASTOR, 227 F.2D 664 (C.A.2D CIR.)(CLEANING VESSEL OF PITCH TO MAKE IT
SUITABLE FOR FUTURE VOYAGES); READ V. UNITED STATES, 201 F.2D 758 (C.A.
3D CIR.)(RECONVERSION OF LIBERTY SHIP INTO TROOP CARRIER; WORKER
ENGAGED IN CONVERTING DEEP TANKS); CRAWFORD V. POPE & TALBOT, INC., 206
F.2D 784 (C.A. 3D CIR.)(BOILER CLEANING COMPANY'S EMPLOYEE CLEANING
ACCUMULATED RUST AND DIRT FROM DEEP TANK); PINION V. MISSISSIPPI
SHIPPING CO., 156 F. SUPP. 652 (D.C.E.D. LA.)(PLUMBING REPAIR
CONTRACTOR'S HELPER CARRYING ON HOME PORT REPAIRS).  SEE ALSO PIONEER
S.S. CO. V. HILL, 227 F.2D 262, 263 (C.A. 6TH CIR.)(VESSEL IN WINTER
LAY-UP; REGULAR OFFICERS AND CREW NOT ABOARD; SUBSTANTIAL REPAIRS BEING
EFFECTED; DICTUM THAT A SHIPFITTER'S HELPER "WAS PROBABLY WITHIN THE
BROADENED CLASS OF WORKERS TO WHOM THE PROTECTION OF THE SEAWORTHINESS
DOCTRINE HAS NOW BEEN EXTENDED"); IMPERIAL OIL, LTD., V. DRLIK, 234
F.2D 4, 8 (C.A. 6TH CIR.)(SHIPBUILDING COMPANY EMPLOYEE ENGAGED IN
REPAIRING DRYDOCKED SHIP MATERIALLY DAMAGED BY EXPLOSION; DICTUM THAT
WORKER "WOULD FALL WITHIN THE PROTECTION OF THE RULE SO EXTENDED");
LESTER V. UNITED STATES, 234 F.2D 625 (C.A.2D CIR.)(ELECTRICIAN WORKING
ON GENERAL OVERHAUL OF DRYDOCKED VESSEL; EXTENSION OF WARRANTY
ASSUMED). 
..END :














KERMAREC V. COMPAGNIE GENERALE TRANSATLANTIQUE 358 U.S. 625 


NO. 22.  ARGUED NOVEMBER 13, 1958 - DECIDED FEBRUARY 24, 1959 - 245 F.2D
175, JUDGMENT VACATED AND CASE REMANDED TO THE DISTRICT COURT. 


WHILE VISITING A SEAMAN ON BOARD A VESSEL BERTHED AT A PIER IN NEW
YORK CITY, PETITIONER WAS INJURED BY A FALL DOWN A STAIRWAY.  BASING
JURISDICTION ON DIVERSITY OF CITIZENSHIP, HE BROUGHT AN ACTION FOR
DAMAGES IN A FEDERAL DISTRICT COURT AGAINST THE SHIPOWNER.  HE ALLEGED
UNSEAWORTHINESS OF THE VESSEL AND NEGLIGENCE OF ITS CREW.  THE JURY
RETURNED A VERDICT FOR PETITIONER; BUT THE DISTRICT COURT SET IT ASIDE
AND DISMISSED THE COMPLAINT.  HELD:  JUDGMENT VACATED AND CASE REMANDED
TO THE DISTRICT COURT WITH INSTRUCTIONS TO REINSTATE THE JURY VERDICT
AND ENTER JUDGMENT ACCORDINGLY.  PP. 626-632. 

1.  SINCE PETITIONER WAS INJURED ABOARD A SHIP UPON NAVIGABLE WATERS,
THE CASE IS WITHIN FULL RANGE OF ADMIRALTY JURISDICTION AND IS GOVERNED
BY THE STANDARDS OF MARITIME LAW; AND THE DISTRICT COURT ERRED IN
RULING THAT IT WAS GOVERNED BY NEW YORK LAW.  PP. 628-629. 

2. THE DISTRICT JUDGE ERRED IN INSTRUCTING THE JURY THAT CONTRIBUTORY
NEGLIGENCE ON PETITIONER'S PART WOULD OPERATE AS A COMPLETE BAR TO
RECOVERY; HE SHOULD HAVE TOLD THE JURY THAT PETITIONER'S CONTRIBUTORY
NEGLIGENCE WAS TO BE CONSIDERED ONLY IN MITIGATION OF DAMAGES; BUT THIS
ERROR DID NOT PREJUDICE PETITIONER, BECAUSE THE JURY FOUND IN HIS
FAVOR.  P. 629. 

3.  THE DISTRICT JUDGE WAS CORRECT IN ELIMINATING FROM THE CASE THE
CLAIM BASED ON UNSEAWORTHINESS, SINCE PETITIONER WAS NOT A MEMBER OF
THE SHIP'S COMPANY NOR OF THAT BROADENED CLASS OF WORKMEN TO WHOM THE
ADMIRALTY LAW HAS LATTERLY EXTENDED THE ABSOLUTE RIGHT TO A SEAWORTHY
SHIP.  P. 629. 

4.  UNDER MARITIME LAW, THE OWNER OF A SHIP IN NAVIGABLE WATERS OWES
TO ALL WHO ARE ON BOARD FOR PURPOSES NOT INIMICAL TO HIS LEGITIMATE
INTERESTS THE DUTY OF EXERCISING REASONABLE CARE UNDER THE
CIRCUMSTANCES OF EACH CASE.  PP. 629-632. 

KERMAREC V. COMPAGNIE GENERALE TRANSATLANTIQUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

ON NOVEMBER 24, 1948, THE RESPONDENT'S VESSEL, THE S.S. OREGON, WAS
BERTHED AT A PIER IN THE NORTH RIVER, NEW YORK CITY.  ABOUT NOON ON
THAT DAY JOSEPH KERMAREC CAME ABOARD TO VISIT HENRY YVES, A MEMBER OF
THE SHIP'S CREW.  THE PURPOSE OF THE VISIT WAS ENTIRELY PERSONAL, TO
PAY A SOCIAL CALL UPON YVES AND TO GIVE HIM A PACKAGE TO BE DELIVERED
TO A MUTUAL FRIEND IN FRANCE.  IN ACCORDANCE WITH CUSTOMARY PRACTICE
PERMITTING CREW MEMBERS TO ENTERTAIN GUESTS ABOARD THE VESSEL, YVES HAD
OBTAINED A PASS FROM THE EXECUTIVE OFFICER AUTHORIZING KERMAREC TO COME
ABOARD.  (FN1)  AS HE STARTED TO LEAVE THE SHIP SEVERAL HOURS LATER,
KERMAREC FELL AND WAS INJURED WHILE DESCENDING A STAIRWAY. 

ON THE THEORY THAT HIS FALL HAD BEEN CAUSED BY THE DEFECTIVE MANNER
IN WHICH A CANVAS RUNNER HAD BEEN TACKED TO THE STAIRWAY, KERMAREC
BROUGHT AN ACTION FOR PERSONAL INJURIES IN THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, ALLEGING UNSEAWORTHINESS OF THE VESSEL
AND NEGLIGENCE ON THE PART OF ITS CREW.  FEDERAL JURISDICTION WAS
INVOKED BY REASON OF THE DIVERSE CITIZENSHIP OF THE PARTIES, AND A JURY
TRIAL WAS DEMANDED. 

THE DISTRICT JUDGE WAS OF THE VIEW THAT THE SUBSTANTIVE LAW OF NEW
YORK WAS APPLICABLE.  ACCORDINGLY, HE ELIMINATED THE UNSEAWORTHINESS
CLAIM FROM THE CASE AND INSTRUCTED THE JURY THAT KERMAREC WAS "A
GRATUITOUS LICENSEE" WHO COULD RECOVER ONLY IF THE DEFENDANT HAD FAILED
TO WARN HIM OF A DANGEROUS CONDITION WITHIN ITS ACTUAL KNOWLEDGE, AND
ONLY IF KERMAREC HIMSELF HAD BEEN ENTIRELY FREE OF CONTRIBUTORY
NEGLIGENCE.  (FN2) 

THE JURY RETURNED A VERDICT IN KERMAREC'S FAVOR.  SUBSEQUENTLY THE
TRIAL COURT GRANTED A MOTION TO SET THE VERDICT ASIDE AND DISMISS THE
COMPLAINT, RULING THAT THERE HAD BEEN A COMPLETE FAILURE OF PROOF THAT
THE SHIPOWNER HAD ACTUALLY KNOWN THAT THE STAIRWAY WAS IN A DANGEROUS
OR DEFECTIVE CONDITION.  A DIVIDED COURT OF APPEALS AFFIRMED.  THE
OPINION OF THAT COURT DOES NOT MAKE CLEAR WHETHER AFFIRMANCE WAS BASED
UPON AGREEMENT WITH THE TRIAL JUDGE THAT NEW YORK LAW WAS APPLICABLE,
OR UPON A DETERMINATION THAT THE CONTROLLING LEGAL PRINCIPLES WOULD IN
ANY EVENT BE NO DIFFERENT UNDER MARITIME LAW.  245 F.2D 175. 
CERTIORARI WAS GRANTED TO EXAMINE BOTH OF THESE ISSUES.  355 U.S. 902. 

THE DISTRICT COURT WAS IN ERROR IN RULING THAT THE GOVERNING LAW IN
THIS CASE WAS THAT OF THE STATE OF NEW YORK.  KERMAREC WAS INJURED
ABOARD A SHIP UPON NAVIGABLE WATERS.  IT WAS THERE THAT THE CONDUCT OF
WHICH HE COMPLAINED OCCURRED.  THE LEGAL RIGHTS AND LIABILITIES ARISING
FROM THAT CONDUCT WERE THEREFORE WITHIN THE FULL REACH OF THE ADMIRALTY
JURISDICTION AND MEASURABLE BY THE STANDARDS OF MARITIME LAW.  SEE THE
PLYMOUTH, 3 WALL.  20; PHILADELPHIA, W.&B.R. CO. V. PHILADELPHIA &
HAVRE DE GRACE STEAM TUGBOAT CO., 23 HOW.  209, 215; THE COMMERCE, 1
BLACK 574, 579; THE ROCK ISLAND BRIDGE, 6 WALL.  213, 215; THE BELFAST,
7 WALL.  624, 640; LEATHERS V. BLESSING, 105 U.S. 626, 630; THE ADMIRAL
PEOPLES, 295 U.S. 649, 651.  IF THIS ACTION HAD BEEN BROUGHT IN A STATE
COURT, REFERENCE TO ADMIRALTY LAW WOULD HAVE BEEN NECESSARY TO
DETERMINE THE RIGHTS AND LIABILITIES OF THE PARTIES.  CARLISLE PACKING
CO. V. SANDANGER, 259 U.S. 255, 259.  WHERE THE PLAINTIFF EXERCISES THE
RIGHT CONFERRED BY DIVERSITY OF CITIZENSHIP TO CHOOSE A FEDERAL FORUM,
THE RESULT IS NO DIFFERENT, EVEN THOUGH HE EXERCISES THE FURTHER RIGHT
TO A JURY TRIAL.  WHATEVER DOUBT MAY ONCE HAVE EXISTED ON THAT SCORE
WAS EFFECTIVELY LAID TO REST BY POPE & TALBOT, INC., V. HAWN, 346 U.S.
406, 410-411.  IT THUS BECOMES NECESSARY TO CONSIDER WHETHER PREJUDICE
RESULTED FROM THE COURT'S APPLICATION OF THE SUBSTANTIVE LAW OF NEW
YORK. 

IN INSTRUCTING THE JURY THAT CONTRIBUTORY NEGLIGENCE ON KERMAREC'S
PART WOULD OPERATE AS A COMPLETE BAR TO RECOVERY, THE DISTRICT JUDGE
WAS CLEARLY IN ERROR.  THE JURY SHOULD HAVE BEEN TOLD INSTEAD THAT
KERMAREC'S CONTRIBUTORY NEGLIGENCE WAS TO BE CONSIDERED ONLY IN
MITIGATION OF DAMAGES.  THE MAX MORRIS, 137 U.S. 1; POPE & TALBOT,
INC., V. HAWN, 346 U.S. 406, 408-409.  IT IS EQUALLY CLEAR, HOWEVER,
THAT THIS ERROR DID NOT PREJUDICE KERMAREC.  BY RETURNING A VERDICT IN
HIS FAVOR, THE JURY NECESSARILY FOUND THAT KERMAREC HAD NOT IN FACT
BEEN GUILTY OF CONTRIBUTORY NEGLIGENCE "EVEN IN THE SLIGHTEST DEGREE." 

THE DISTRICT JUDGE REFUSED TO SUBMIT THE ISSUE OF UNSEAWORTHINESS TO
THE JURY FOR THE REASON THAT AN ACTION FOR UNSEAWORTHINESS IS UNKNOWN
TO THE COMMON LAW OF NEW YORK.  ALTHOUGH THE BASIS FOR ITS ACTION WAS
INAPPROPRIATE, THE COURT WAS CORRECT IN ELIMINATING THE UNSEAWORTHINESS
CLAIM FROM THIS CASE.  KERMAREC WAS NOT A MEMBER OF THE SHIP'S COMPANY,
NOR OF THAT BROADENED CLASS OF WORKMEN TO WHOM THE ADMIRALTY LAW HAS
LATTERLY EXTENDED THE ABSOLUTE RIGHT TO A SEAWORTHY SHIP.  SEE MAHNICH
V. SOUTHERN S.S. CO., 321 U.S. 96; SEAS SHIPPING CO. V. SIERACKI, 328
U.S. 85; POPE & TALBOT, INC., V. HAWN, 346 U.S. 406.  KERMAREC WAS
ABOARD NOT TO PERFORM SHIP'S WORK, BUT SIMPLY TO VISIT A FRIEND. 

IT IS APPARENT, THEREFORE, THAT PREJUDICIAL ERROR OCCURRED IN THIS
CASE ONLY IF THE MARITIME LAW IMPOSED UPON THE SHIPOWNER A STANDARD OF
CARE HIGHER THAN THE DUTY WHICH THE DISTRICT JUDGE FOUND OWING TO A
GRATUITOUS LICENSEE UNDER THE LAW OF NEW YORK.  IF, IN OTHER WORDS, THE
SHIPOWNER OWED KERMAREC THE DUTY OF EXERCISING ORDINARY CARE, THEN UPON
THIS RECORD KERMAREC WAS ENTITLED TO JUDGMENT, THE JURY HAVING RESOLVED
THE FACTUAL ISSUES IN HIS FAVOR UNDER INSTRUCTIONS LESS FAVORABLE TO
HIM THAN SHOULD HAVE BEEN GIVEN.  (FN3)  STATED BROADLY, THE DECISIVE
ISSUE IS THUS WHETHER ADMIRALTY RECOGNIZES THE SAME DISTINCTIONS
BETWEEN AN INVITEE AND A LICENSEE AS DOES THE COMMON LAW. 

IT IS A SETTLED PRINCIPLE OF MARITIME LAW THAT A SHIPOWNER OWES THE
DUTY OF EXERCISING REASONABLE CARE TOWARDS THOSE LAWFULLY ABOARD THE
VESSEL WHO ARE NOT MEMBERS OF THE CREW.  LEATHERS V. BLESSING, 105 U.S.
626; THE MAX MORRIS, 137 U.S. 1; THE ADMIRAL PEOPLES, 295 U.S. 649. 
(FN4)  BUT THIS COURT HAS NEVER DETERMINED WHETHER A DIFFERENT AND
LOWER STANDARD OF CARE IS DEMANDED IF THE SHIP'S VISITOR IS A PERSON TO
WHOM THE LABEL "LICENSEE" CAN BE ATTACHED.  THE ISSUE MUST BE DECIDED
IN THE PERFORMANCE OF THE COURT'S FUNCTION IN DECLARING THE GENERAL
MARITIME LAW, FREE FROM INAPPROPRIATE COMMON-LAW CONCEPTS.  THE
LOTTAWANNA, 21 WALL.  558; THE MAX MORRIS, 137 U.S. 1.  (FN5)

THE DISTINCTIONS WHICH THE COMMON LAW DRAWS BETWEEN LICENSEE AND
INVITEE WERE INHERITED FROM A CULTURE DEEPLY ROOTED TO THE LAND, A
CULTURE WHICH TRACED MANY OF ITS STANDARDS TO A HERITAGE OF FEUDALISM. 
IN AN EFFORT TO DO JUSTICE IN AN INDUSTRIALIZED URBAN SOCIETY, WITH ITS
COMPLEX ECONOMIC AND INDIVIDUAL RELATIONSHIPS, MODERN COMMON-LAW COURTS
HAVE FOUND IT NECESSARY TO FORMULATE INCREASINGLY SUBTLE VERBAL
REFINEMENTS, TO CREATE SUBCLASSIFICATIONS AMONG TRADITIONAL COMMON-LAW
CATEGORIES, AND TO DELINEATE FINE GRADATIONS IN THE STANDARDS OF CARE
WHICH THE LANDOWNER OWES TO EACH.  (FN6)  YET EVEN WITHIN A SINGLE
JURISDICTION, THE CLASSIFICATIONS AND SUBCLASSIFICATIONS BRED BY THE
COMMON LAW HAVE PRODUCED CONFUSION AND CONFLICT.  (FN7)  AS NEW
DISTINCTIONS HAVE BEEN SPAWNED, OLDER ONES HAVE BECOME OBSCURED. 
THROUGH THIS SEMANTIC MORASS THE COMMON LAW HAS MOVED, UNEVENLY AND
WITH HESITATION, TOWARDS "IMPOSING ON OWNERS AND OCCUPIERS A SINGLE
DUTY OF REASONABLE CARE IN ALL THE CIRCUMSTANCES."  (FN8) 

FOR THE ADMIRALTY LAW AT THIS LATE DATE TO IMPORT SUCH CONCEPTUAL
DISTINCTIONS WOULD BE FOREIGN TO ITS TRADITIONS OF SIMPLICITY AND
PRACTICALITY.  THE LOTTAWANNA, 21 WALL.  558, AT 575.  THE
INCORPORATION OF SUCH CONCEPTS APPEARS PARTICULARLY UNWARRANTED WHEN IT
IS REMEMBERED THAT THEY ORIGINATED UNDER A LEGAL SYSTEM IN WHICH STATUS
DEPENDED ALMOST ENTIRELY UPON THE NATURE OF THE INDIVIDUAL'S ESTATE
WITH RESPECT TO REAL PROPERTY, A LEGAL SYSTEM IN THAT RESPECT ENTIRELY
ALIEN TO THE LAW OF THE SEA.  (FN9)  WE HOLD THAT THE OWNER OF A SHIP
IN NAVIGABLE WATERS OWES TO ALL WHO ARE ON BOARD FOR PURPOSES NOT
INIMICAL TO HIS LEGITIMATE INTERESTS THE DUTY OF EXERCISING REASONABLE
CARE UNDER THE CIRCUMSTANCES OF EACH CASE.  (FN10)  IT FOLLOWS THAT IN
THE PRESENT CASE THE JUDGMENT MUST BE VACATED AND THE CASE REMANDED TO
THE DISTRICT COURT WITH INSTRUCTIONS TO REINSTATE THE JURY VERDICT AND
ENTER JUDGMENT ACCORDINGLY.  IT IS SO ORDERED. 

FN1 THE PASS CONTAINED THE FOLLOWING LANGUAGE:  "THE PERSON ACCEPTING
THIS PASS IN CONSIDERATION THEREOF ASSUMES ALL RISKS OF ACCIDENTS, AND
EXPRESSLY AGREES THAT THE COMPAGNIE GENERALE TRANSATLANTIQUE SHALL NOT
BE HELD LIABLE UNDER ANY CIRCUMSTANCES WHETHER BY NEGLIGENCE OF THEIR
EMPLOYEES, OR OTHERWISE, FOR ANY INJURY TO HIS PERSON OR FOR ANY LOSS
OR INJURY TO HIS PROPERTY."  THE DISTRICT JUDGE INSTRUCTED THE JURY
THAT THIS ATTEMPTED DISCLAIMER COULD HAVE NO EFFECT UNLESS IT HAD BEEN
MADE KNOWN TO KERMAREC.  THE EVIDENCE SHOWED THAT KERMAREC HAD NOT SEEN
THE PASS.  BY ITS VERDICT THE JURY IMPLICITLY FOUND THAT KERMAREC HAD
NOT BEEN INFORMED OF THE LANGUAGE APPEARING ON IT.  SINCE THAT FINDING
IS NOT DISPUTED HERE, WE NEED NOT CONSIDER WHAT EFFECT THE ATTEMPTED
DISCLAIMER WOULD HAVE HAD IF KERMAREC HAD BEEN AWARE OF IT.  SEE MOORE
V. AMERICAN SCANTIC LINE, INC., 121 F.2D 767.  COMPARE 46 U.S.C. SEC.
183C. 

FN2  "WITH RESPECT TO THE FIRST ISSUE OF FACT, NAMELY, THE ALLEGED
NEGLIGENCE OF THE DEFENDANT, YOU MUST BEAR IN MIND THAT THE OWNER OF A
SHIP SUCH AS THE DEFENDANT IS SUBJECT TO LIABILITY FOR BODILY HARM
CAUSED TO A GRATUITOUS LICENSEE, SUCH AS THE PLAINTIFF, BY ANY
ARTIFICIAL CONDITION ON BOARD THE SHIP, ONLY IF BOTH OF THE FOLLOWING
CONDITIONS ARE PRESENT:  (1) IF THE DEFENDANT KNOWS OF THE UNSAFE
CONDITION AND REALIZES THAT IT INVOLVES AN UNREASONABLE RISK TO THE
PLAINTIFF AND HAS REASON TO BELIEVE THAT THE PLAINTIFF WILL NOT
DISCOVER THE CONDITION OR REALIZE THE RISK; AND (2) IF THE DEFENDANT
INVITES OR PERMITS THE PLAINTIFF TO ENTER OR REMAIN UPON THE SHIP
WITHOUT EXERCISING REASONABLE CARE EITHER TO MAKE THE CONDITION
REASONABLY SAFE OR TO WARN THE PLAINTIFF OF THE CONDITION AND RISK
INVOLVED THEREIN. 

"IN SHORT, IN ORDER THAT THE PLAINTIFF RECOVER IN THIS CASE, HE MUST
ESTABLISH BY A FAIR PREPONDERANCE OF THE EVIDENCE THAT THE DEFENDANT
KNEW OF THE UNSAFE CONDITION AND INVITED THE PLAINTIFF ABOARD WITHOUT
EITHER CORRECTING THE CONDITION OR WARNING HIM OF IT. 

*         *         *         *         * 

"IN CONNECTION WITH DAMAGES, IF YOU FIND THAT THE PLAINTIFF'S
INJURIES WERE THE PROXIMATE RESULT OF THE DEFENDANT'S NEGLIGENCE AND
THE PLAINTIFF'S OWN CONTRIBUTORY NEGLIGENCE, EVEN IN THE SLIGHTEST
DEGREE, THEN THE PLAINTIFF CANNOT RECOVER AT ALL." 

FN3  THE RECORD CLEARLY JUSTIFIES A FINDING THAT THE CANVAS RUNNER
WAS DEFECTIVELY TACKED TO THE STAIRWAY, AND THAT THIS CAUSED A
DANGEROUS CONDITION OF WHICH THE SHIPOWNER'S AGENT WOULD HAVE KNOWN IN
THE EXERCISE OF ORDINARY CARE.  BY ITS VERDICT, THE JURY FOUND THAT
MUCH AND MORE. 

FN4  CF., THE OSCEOLA, 189 U.S. 158. 

FN5  WHERE THERE IS NO IMPINGEMENT UPON LEGISLATIVE POLICY.  CF.
UNITED STATES V. ATLANTIC MUT. INS. CO., 343 U.S. 236; HALCYON LINES V.
HAENN SHIP CORP., 342 U.S. 282. 

FN6  RANDOM SELECTION OF ALMOST ANY MODERN DECISION WILL SERVE TO
ILLUSTRATE THE POINT.  E.G., CHICAGO G.W.R. CO. V. BEECHER, 150 F.2D
394 (LICENSEE BY EXPRESS INVITATION; LICENSEE BY IMPLIED INVITATION;
BARE LICENSEE). 

FN7  FOR EXAMPLE, THE DUTY OF AN OCCUPIER TOWARD A LICENSEE UNDER THE
LAW OF NEW YORK, WHICH THE DISTRICT COURT THOUGHT APPLICABLE IN THE
PRESENT CASE, APPEARS FAR FROM CLEAR.  COMPARE FOX V. WARNER-QUINLAN
ASPHALT CO., 204 N.Y. 240, 245, 97 N.E. 497, 498; MENDELOWITZ V.
NEISNER, 258 N.Y. 181, 184, 179 N.E. 378, 379; PAQUET V. BARKER, 250
APP. DIV. 771, 293 N.Y.S. 983 (2D DEPT.); BYRNE V. NEW YORK C.&H.R.R.
CO., 104 N.Y. 362, 10 N.E. 539; HIGGINS V. MASON, 255 N.Y. 104, 109,
174 N.E. 77, 79; EHRET V. VILLAGE OF SCARSDALE, 269 N.Y. 198, 208, 199
N.E. 56, 60; MAYER V. TEMPLE PROPERTIES, 307 N.Y. 559, 563-564, 122
N.E.2D 909, 911-913; FRIEDMAN V. BERKOWITZ, 206 MISC. 889, 136 N.Y.S.2D
81. 

FN8  SEE CHIEF JUDGE CLARK'S DISSENTING OPINION IN THE COURT OF
APPEALS.  245 F.2D 175, AT 180.  A SURVEY HERE OF THE THOUSANDS OF
JUDICIAL DECISIONS IN THIS AREA DURING THE LAST HUNDRED YEARS IS AS
UNNECESSARY AS IT WOULD BE IMPOSSIBLE.  A RECENT CRITICAL REVIEW IS TO
BE FOUND IN 2 HARPER AND JAMES, THE LAW OF TORTS, C. XXVII, PASSIM
(1956).  SEE ALSO, PROSSER, BUSINESS VISITORS AND INVITEES, 26 MINN. L.
REV. 573; MARSH, THE HISTORY AND COMPARATIVE LAW OF INVITEES, LICENSEES
AND TRESPASSERS, 69 L.Q. REV. 182, 359. 

FN9  THIS IS NOT TO SAY THAT CONCEPTS OF STATUS ARE NOT RELEVANT IN
THE LAW OF MARITIME TORTS, BUT ONLY THAT THE MEANINGFUL CATEGORIES ARE
QUITE DIFFERENT.  MEMBERSHIP IN THE SHIP'S COMPANY, FOR EXAMPLE, A
STATUS THAT CONFERS AN ABSOLUTE RIGHT TO A SEAWORTHY SHIP, IS PECULIAR
TO THE LAW OF THE SEA.  SUCH STATUS HAS NOW BEEN EXTENDED TO OTHERS
ABOARD "DOING A SEAMAN'S WORK AND INCURRING A SEAMAN'S HAZARDS."  SEAS
SHIPPING CO. V. SIERACKI, 328 U.S. 85, AT 99.    FN10  THE INCONSISTENT
AND DIVERSE RESULTS REACHED BY COURTS WHICH HAVE TRIED TO APPLY TO THE
FACTS OF SHIPBOARD LIFE COMMON-LAW DISTINCTIONS BETWEEN LICENSEES AND
INVITEES REINFORCE THE CONCLUSION HERE REACHED.  AS TO A SEAMAN
CROSSING ANOTHER VESSEL TO REACH THE PIER, SEE RADOSLOVICH V.
NAVIGAZIONE LIBERA TRIESTINA, S.A., 72 F.2D 367 (INVITEE); AHO V.
JACOBSEN, 249 F.2D 309 (LICENSEE); ANDERSON V. THE E.B. WARD, JR., 38
F. 44 (INVITEE); GRIFFITHS V. SEABOARD MIDLAND PETROLEUM CORP., D.C.
MD., 1933 A.M.C. 911 (INVITEE); SEE ALSO LAUCHERT V. AMERICAN S.S. CO.,
65 F. SUPP. 703 (LICENSEE).  AS TO A GUEST OF A PASSENGER, SEE MCCANN
V. ANCHOR LINE, 79 F.2D 338 (INVITEE); ZAIA V. "ITALIA" SOCIETA ANONYMA
DI NAVIGAZIONE, 324 MASS.  547, 87 N.E.2D 183 (LICENSEE); THE
CHAMPLAIN, N.Y. SUP. CT., 1934 A.M.C. 25 (INVITEE).  SEE ALSO METCALFE
V. CUNARD S.S. CO., 147 MASS. 66, 16 N.E. 701 (LICENSEE). 

THE ENGLISH COURTS APPEAR TO HAVE DIFFERENTIATED BETWEEN AN INVITEE
AND A LICENSEE IN CASES OF PERSONAL INJURY ON SHIPBOARD, WITHOUT
CRITICAL INQUIRY.  SEE, E.G., SMITH V. STEELE, L.R. 10 Q.B. 125 (1875)
AND DUNCAN V. CAMMELL LAIRD & CO., LTD., (1943) 2 ALL E.R. 621.  THESE
DISTINCTIONS HAVE AFTER THOROUGH STUDY (LAW REFORM COMMITTEE, THIRD
REPORT, CMD.  NO. 9305 (1954)) BEEN ELIMINATED ENTIRELY FROM THE
ENGLISH LAW BY STATUTORY ENACTMENT.  OCCUPIERS' LIABILITY ACT, 1957, 5
AND 6 ELIZ.  2, C. 31. 
..END :






CASH V. CULVER 358 U.S. 633 


NO. 91.  ARGUED JANUARY 22, 1959 - DECIDED FEBRUARY 24, 1959 -
REVERSED. 


AT A TRIAL IN A STATE COURT AT WHICH HE WAS NOT REPRESENTED BY
COUNSEL, PETITIONER WAS CONVICTED OF BURGLARY AND SENTENCED TO
IMPRISONMENT FOR 15 YEARS.  NO APPEAL WAS TAKEN, AND THE STATE SUPREME
COURT DENIED WITHOUT A HEARING A PETITION FOR HABEAS CORPUS WHICH HE
FILED LATER AND IN WHICH HE ALLEGED, INTER ALIA, THAT:  HE WAS 20 YEARS
OLD, UNEDUCATED AND INEXPERIENCED IN COURT TRIALS.  HE WAS REPRESENTED
BY COUNSEL AT AN EARLIER TRIAL FOR THE SAME OFFENSE WHICH RESULTED IN A
HUNG JURY.  HE WAS THEN PLACED IN SOLITARY CONFINEMENT, PENDING A NEW
TRIAL OF WHICH HE WAS NOT NOTIFIED UNTIL THE DAY BEFORE IT BEGAN. 
MEANWHILE, HIS COUNSEL HAD WITHDRAWN FROM THE CASE AND HIS MOTHER HAD
MADE SEVERAL UNSUCCESSFUL ATTEMPTS TO OBTAIN OTHER COUNSEL.  AT THE
TRIAL, HE WAS DENIED BOTH THE APPOINTMENT OF COUNSEL FOR HIS DEFENSE
AND A CONTINUANCE TO ENABLE HIM TO OBTAIN COUNSEL.  HIS CONVICTION WAS
BASED LARGELY ON THE TESTIMONY OF AN ALLEGED ACCOMPLICE WHO PLEADED
GUILTY AND TESTIFIED FOR THE STATE - NOT ONLY REGARDING THE CRIME FOR
WHICH PETITIONER WAS BEING TRIED BUT ALSO REGARDING OTHER ALLEGED
CRIMES.  HELD:  IF PETITIONER'S ALLEGATIONS BE TRUE, HE WAS DENIED THE
DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT; AND IT WAS
INCUMBENT ON THE STATE COURTS TO DETERMINE WHAT THE TRUE FACTS WERE. 
PP. 633-638. 

CASH V. CULVER, STATE PRISON CUSTODIAN. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER IS SERVING A 15-YEAR PRISON SENTENCE IMPOSED BY A
FLORIDA COURT AFTER CONVICTION BY A JURY OF BURGLARY.  (FN1)  HE WAS
NOT REPRESENTED BY COUNSEL AT THE TRIAL.  NO APPEAL WAS TAKEN, AND THE
SUPREME COURT OF FLORIDA DENIED WITHOUT A HEARING A PETITION FOR HABEAS
CORPUS WHICH HE LATER FILED.  (FN2)  CERTIORARI WAS GRANTED TO
DETERMINE WHETHER THE CIRCUMSTANCES ALLEGED IN THE HABEAS CORPUS
PETITION MAKE THIS A CASE WHERE THE DENIAL OF COUNSEL'S ASSISTANCE AT
THE TRIAL OPERATED TO DEPRIVE THE DEFENDANT OF THE DUE PROCESS OF LAW
GUARANTEED BY THE FOURTEENTH AMENDMENT.  357 U.S. 904.  FOR REASONS TO
BE STATED, WE HOLD THAT THIS IS SUCH A CASE. 

THE RECORD HERE CONSISTS ONLY OF THE HABEAS CORPUS PETITION AND THE
FLORIDA SUPREME COURT'S BARE ORDER OF DENIAL.  WITH THE CASE IN THAT
POSTURE, THE FACTUAL ALLEGATIONS OF THE PETITION MUST FOR PRESENT
PURPOSES BE ACCEPTED AS TRUE.  HAWK V. OLSON, 326 U.S. 271, 273. 
COMPOSED IN THE PENITENTIARY, THE PETITION, LIKE MANY SUCH DOCUMENTS,
IS HEAVILY LARDED WITH IRRELEVANT INNUENDOES, UNSUPPORTED CONCLUSIONS,
AND PRETENTIOUS LEGALISMS.  WITHIN ITS CONFINES, HOWEVER, ARE TO BE
FOUND ALLEGATIONS OF A CHAIN OF EVENTS WHICH WE NOW RELATE. 

ON DECEMBER 6, 1954, THE PETITIONER, AN UNEDUCATED FARM BOY OF 20,
WAS FIRST TRIED BY A JURY ON THE BURGLARY CHARGE.  AT THAT TRIAL HE WAS
REPRESENTED BY EXPERIENCED COUNSEL OF HIS OWN CHOICE.  AT THE
CONCLUSION OF THE EVIDENCE, THE JURY WAS UNABLE TO AGREE ON A VERDICT,
AND A MISTRIAL RESULTED. 

THE PETITIONER WAS THEN IMMEDIATELY PLACED IN SOLITARY CONFINEMENT,
WHERE HE REMAINED AWAITING RETRIAL.  HE FIRST LEARNED ON THE EVENING OF
FEBRUARY 20, 1955, THAT HIS NEW TRIAL WAS TO TAKE PLACE THE NEXT DAY. 
ONLY A FEW DAYS EARLIER HE HAD LEARNED THROUGH A PRISON OFFICIAL THAT
HIS FORMER LAWYER HAD WITHDRAWN FROM THE CASE.  THE PETITIONER'S MOTHER
ON HIS BEHALF HAD TRIED TO ENGAGE A NUMBER OF OTHER LAWYERS TO
REPRESENT HIM, BUT THEY HAD ALL REFUSED, TELLING HER THAT THE FEE SHE
COULD OFFER WAS INADEQUATE, AND THE TIME FOR PREPARATION TOO SHORT. 

AT THE OPENING OF THE SECOND TRIAL THE PETITIONER ASKED THE COURT FOR
A CONTINUANCE TO GIVE HIM TIME TO EMPLOY A NEW LAWYER, OR IN THE
ALTERNATIVE THAT THE COURT APPOINT COUNSEL FOR HIM.  IN MAKING THESE
REQUESTS THE PETITIONER CALLED THE TRIAL JUDGE'S ATTENTION TO HIS
YOUTH, HIS LACK OF EDUCATION AND COURTROOM EXPERIENCE, AND THE SUDDEN
WITHDRAWAL OF PRIOR COUNSEL.  (FN3)  THE REQUESTS WERE DENIED, AND THE
TRIAL PROCEEDED AT ONCE, WITH THE PETITIONER LEFT TO CONDUCT HIS OWN
DEFENSE.  (FN4) 

HIS CO-DEFENDANT, ALLEN, AN ALLEGED ACCOMPLICE, PLEADED GUILTY AND
TESTIFIED FOR THE STATE.  ALLEN STATED, AMONG OTHER THINGS, THAT HE AND
THE PETITIONER IN THE COMPANY OF TWO OTHERS HAD BURGLARIZED STORES,
STOLEN A TRUCK, AND ENGAGED IN A RUNNING GUN BATTLE WITH POLICE.  HE
FURTHER TESTIFIED THAT HE (ALLEN) HAD "PULLED A $180,000 ROBBERY" IN
NEW ORLEANS WITH TWO OF THE PETITIONER'S OLDER BROTHERS, IN WHICH THE
PETITIONER HAD TAKEN NO PART, AND THAT ONE OF THESE BROTHERS HAD ALSO
PARTICIPATED IN THE CRIME FOR WHICH THE PETITIONER WAS ON TRIAL. 
PHYSICAL EVIDENCE WAS INTRODUCED, INCLUDING A REVOLVER STOLEN FROM THE
STORE THE PETITIONER WAS CHARGED WITH BURGLARIZING, WHICH HAD BEEN
FOUND IN ALLEN'S POSSESSION.  NO EVIDENCE IN THE CASE EXCEPT ALLEN'S
TESTIMONY CONNECTED ALLEN AND THE PETITIONER.  IT IS NOT CLEAR WHAT, IF
ANY, OBJECTIONS WERE MADE TO ALLEN'S TESTIMONY, OR WHETHER HE WAS CROSS
EXAMINED.  (FN5) 

ON CONVICTION, THE PETITIONER, A FIRST OFFENDER, WAS SENTENCED TO THE
15-YEAR PRISON TERM HE IS NOW SERVING.  ALLEN, AN EX-CONVICT, WAS
SENTENCED TO 10 YEARS, BUT PLACED ON PROBATION.  NO CHARGES WERE
BROUGHT AGAINST THE PETITIONER'S BROTHER OR THE FOURTH PERSON NAMED BY
ALLEN AS A PARTICIPANT IN THE CRIME FOR WHICH THE PETITIONER WAS
CONVICTED. 

IN THE 17 YEARS THAT HAVE PASSED SINCE ITS DECISION IN BETTS V.
BRADY, 316 U.S. 455, THIS COURT, BY A TRADITIONAL PROCESS OF INCLUSION
AND EXCLUSION HAS, IN A SERIES OF DECISIONS, INDICATED THE FACTORS
WHICH MAY RENDER STATE CRIMINAL PROCEEDINGS WITHOUT COUNSEL SO APT TO
RESULT IN INJUSTICE AS TO VIOLATE THE FOURTEENTH AMENDMENT.  (FN6)  THE
ALLEGED CIRCUMSTANCES OF THE PRESENT CASE SO CLEARLY MAKE IT ONE WHERE,
UNDER THESE DECISIONS, FEDERAL ORGANIC LAW REQUIRED THE ASSISTANCE OF
COUNSEL THAT IT IS UNNECESSARY HERE TO EXPLORE THE OUTER LIMITS OF
CONSTITUTIONAL PROTECTION IN THIS AREA. 

"WHERE THE GRAVITY OF THE CRIME AND OTHER FACTORS - SUCH AS THE AGE
AND EDUCATION OF THE DEFENDANT, THE CONDUCT OF THE COURT OR THE
PROSECUTING OFFICIALS, AND THE COMPLICATED NATURE OF THE OFFENSE
CHARGED AND THE POSSIBLE DEFENSES THERETO - RENDER CRIMINAL PROCEEDINGS
WITHOUT COUNSEL SO APT TO RESULT IN INJUSTICE AS TO BE FUNDAMENTALLY
UNFAIR," THE CONSTITUTION REQUIRES THAT THE ACCUSED MUST HAVE LEGAL
ASSISTANCE AT HIS TRIAL.  UVEGES V. PENNSYLVANIA, 335 U.S. 437, 441. 
OF PARTICULAR RELEVANCE HERE ARE THE DECISIONS OF THE COURT WHICH HAVE
HELD THE APPOINTMENT OF COUNSEL NECESSARY TO A FAIR TRIAL BECAUSE OF
THE COMPLEXITY OF THE PROCEEDINGS.  RICE V. OLSON, 324 U.S. 786; GIBBS
V. BURKE, 337 U.S. 773; AND SEE WILLIAMS V. KAISER, 323 U.S. 471, 475
476. 

ALL THAT STOOD BETWEEN THE PETITIONER AND A VERDICT OF ACQUITTAL WAS
THE TESTIMONY OF ALLEN - AN ADMITTED ACCOMPLICE.  ALTHOUGH FLORIDA LAW
DOES NOT REQUIRE CORROBORATION OF AN ACCOMPLICE'S TESTIMONY TO SUSTAIN
A CONVICTION, LAND V. STATE, 59 SO. 2D 370, THE DEFENDANT HAS A RIGHT
TO DEMAND THAT THE TRIAL JUDGE INSTRUCT THE JURY THAT THE "EVIDENCE OF
AN ACCOMPLICE SHOULD BE RECEIVED BY THE JURY WITH GREAT CAUTION." 
VARNUM V. STATE, 137 FLA. 438, 449, 188 SO. 346, 351.  THE FLORIDA
DECISIONS ALSO ESTABLISH THE RIGHT TO CROSS-EXAMINE AN ACCOMPLICE
WITNESS AS TO WHETHER HE IS TESTIFYING UNDER AN AGREEMENT FOR LENIENCY,
AND EVEN AS TO WHETHER HE BELIEVES THAT HIS TESTIMONY WILL BE IN HIS
BEST INTEREST.  LEAVINE V. STATE, 109 FLA. 447, 147 SO. 897; HENDERSON
V. STATE, 135 FLA. 548, 555, 185 SO. 625, 627 (CONCURRING OPINION).  A
LAYMAN WOULD HARDLY BE FAMILIAR WITH THESE RIGHTS. 

MOREOVER, ALLEN'S TESTIMONY CONCERNING THE PETITIONER'S COMMISSION OF
OTHER CRIMES AND THE COMMISSION OF A CRIME BY THE PETITIONER'S BROTHER,
WHO ALLEGEDLY ALSO PARTICIPATED IN THE BURGLARY WHICH WAS THE SUBJECT
OF THE TRIAL, IF NOT INADMISSIBLE IN ITS ENTIRETY, CERTAINLY RAISED
SERIOUS QUESTIONS UNDER FLORIDA LAW.  AS THE FLORIDA SUPREME COURT HAS
RECENTLY NOTED, "THERE ARE LITERALLY THOUSANDS OF CASES IN THIS COUNTRY
DISCUSSING THE ADMISSION OF SUCH EVIDENCE."  PADGETT V. STATE, 53 SO.
2D 106, 108.  THE PROBLEMS WHICH THIS TESTIMONY RAISED WERE THUS BEYOND
THE KEN OF A LAYMAN, AND IT WAS CLEARLY THE KIND OF TESTIMONY THAT
COULD SERIOUSLY DAMAGE A DEFENDANT IN THE EYES OF A JURY.  FINALLY, THE
TRANSCRIPT OF THE PETITIONER'S PREVIOUS TRIAL WOULD HAVE OFFERED A
LAWYER OPPORTUNITIES FOR IMPEACHMENT OF PROSECUTION WITNESSES,
OPPORTUNITIES OF WHICH WE CANNOT ASSUME THAT A LAYMAN WOULD BE AWARE. 
(FN7) 

FOR THESE REASONS, THE REQUIREMENTS OF DUE PROCESS MADE NECESSARY THE
ASSISTANCE OF A LAWYER IF THE CIRCUMSTANCES ALLEGED IN THE HABEAS
CORPUS PETITION ARE TRUE.  ON THE PRESENT RECORD THERE IS NO WAY TO
TEST THEIR TRUTH.  BUT THE ALLEGATIONS THEMSELVES MADE IT INCUMBENT
UPON THE FLORIDA COURTS TO DETERMINE WHAT THE TRUE FACTS WERE.  (FN8)
REVERSED. 

FN1  A NONCAPITAL OFFENSE IN FLORIDA, PUNISHABLE IN THIS CASE BY A
MAXIMUM PRISON TERM OF 20 YEARS.  FLA. STAT., 1955, SEC. 810.01. 

FN2  THE PETITION WAS ORIGINALLY FILED IN THAT COURT IN ACCORDANCE
WITH STATE PROCEDURE EXPLAINED IN SNEED V. MAYO, 66 SO. 2D 865, 874. 

FN3  ON THIS POINT THE ALLEGATIONS OF THE PETITION ARE AS FOLLOWS:
"PETITIONER EXPLAINED TO THE COURT THAT HE WAS NOT CAPABLE OF
REPRESENTING HIMSELF, THAT HE WAS ONLY 20 YEARS OF AGE AND WAS
UNEDUCATED AND HAD NEVER HEARD A COURT TRIAL EXCEPT THE ONE TIME HE WAS
TRIED ON THE SAME CHARGE, AND THEN HE WAS REPRESENTED BY MR. CARR, AND
THAT HE DID NOT KNOW COURT PROCEDURE OR HOW TO CONDUCT HIS DEFENSE, AND
TOLD THE COURT HE HAD BEEN CLOSELY CONFINED IN SOLITARY AT THE FLORIDA
STATE PRISON AT RAIFORD, UP UNTIL THE NIGHT BEFORE, AND THEREFORE HE
HAD NO OPPORTUNITY TO EMPLOY NEW COUNSEL, SINCE THE COURT HAD PERMITTED
HIS CHOSEN COUNSEL TO ABANDON HIM IN THE FACE OF TRIAL, AND IT WAS AN
ABSOLUTE NECESSITY THAT THE COURT GRANT A CONTINUANCE, OR, IN THE
ALTERNATIVE, FOR THE COURT TO REMEDY THE SITUATION BY APPOINTING
COUNSEL TO REPRESENT THE PETITIONER." 

FN4  UNDER FLORIDA LAW A TRIAL COURT HAS AN ABSOLUTE DUTY TO PROVIDE
COUNSEL ONLY FOR AN INDIGENT DEFENDANT ON TRIAL FOR A CAPITAL OFFENSE. 
SNEED V. MAYO, 66 SO. 2D 865, 872; JOHNSON V. MAYO, 158 FLA. 264, 28
SO. 2D 585; FLA. STAT., 1955, SEC. 909.21. 

FN5  THE HABEAS CORPUS PETITION INCORPORATES, AMONG OTHER THINGS,
EXCERPTS FROM A NEWSPAPER ACCOUNT OF THE TRIAL, A FORM OF PLEADING TO
WHICH THE FLORIDA ATTORNEY GENERAL MAKES NO OBJECTION IN THE PRESENT
CASE.  AN EXCERPT FROM THIS NEWSPAPER ACCOUNT READS AS FOLLOWS: "WHILE
MAKING OBJECTIONS AND INQUIRING OF THE JUDGE AND WITNESSES, CASH
APPEARED UNSURE OF HIMSELF.  ON SEVERAL OCCASIONS HE WOULD START A
SENTENCE, THEN STOP TO REPHRASE IT OR START ON ANOTHER SUBJECT.  BEFORE
MAKING OBJECTIONS CASH RAISED HIS HAND TO ATTRACT THE ATTENTION OF THE
JUDGE, THEN IN A HALTING MANNER WOULD MAKE HIS STATEMENT." 

FN6  SEE RICE V. OLSON, 324 U.S. 786; CANIZIO V. NEW YORK, 327 U.S.
82; DE MEERLEER V. MICHIGAN, 329 U.S. 663; FOSTER V. ILLINOIS, 332 U.S.
134; GAYES V. NEW YORK, 332 U.S. 145; BUTE V. ILLINOIS, 333 U.S. 640;
WADE V. MAYO, 334 U.S. 672; GRYGER V. BURKE, 334 U.S. 728; TOWNSEND V.
BURKE, 334 U.S. 736; UVEGES V. PENNSYLVANIA, 335 U.S. 437; GIBBS V.
BURKE, 337 U.S. 773; QUICKSALL V. MICHIGAN, 339 U.S. 660; PALMER V.
ASHE, 342 U.S. 134; MASSEY V. MOORE, 348 U.S. 105; PENNSYLVANIA EX REL.
HERMAN V. CLAUDY, 350 U.S. 116; MOORE V. MICHIGAN, 355 U.S. 155. 

FN7  THE VERY FACT THAT THE JURY FAILED TO CONVICT AT THE FIRST
TRIAL, WHEN THE PETITIONER WAS REPRESENTED BY COUNSEL, IS AT LEAST SOME
PRACTICAL INDICATION OF THE DIFFERENCE A LAWYER'S HELP AT THE SECOND
TRIAL MIGHT HAVE MADE. 

FN8  COUNSEL HAS ADVISED US THAT A TRANSCRIPT OF THE TRIAL
PROCEEDINGS CAN BE MADE AVAILABLE BY THE COURT REPORTER. 
..END :



















CITY OF MERIDIAN V. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. 358 U.S.
639 


NO. 546.  DECIDED FEBRUARY 24, 1959 - 256 F.2D 83, JUDGMENT VACATED AND
CAUSE REMANDED TO THE DISTRICT COURT. 


IN A SUIT BY APPELLEE FOR A DECLARATORY JUDGMENT, A FEDERAL DISTRICT
COURT HELD A MISSISSIPPI STATUTE TO BE IN CONFLICT WITH BOTH THE STATE
AND FEDERAL CONSTITUTIONS.  THE COURT OF APPEALS AFFIRMED, AND AN
APPEAL WAS TAKEN TO THIS COURT UNDER 28 U.S.C. SEC. 1254(2).  APPELLANT
MOVED TO VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE
CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO VACATE ITS JUDGMENT AND
CONVENE A THREE-JUDGE COURT TO CONSIDER THE CASE.  HELD: WITHOUT
PASSING ON THE MERITS OF THAT MOTION, THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO HOLD THE CAUSE WHILE THE PARTIES REPAIR TO A STATE
TRIBUNAL FOR AN AUTHORITATIVE DECLARATION OF APPLICABLE STATE LAW.  PP.
639-641. 

CITY OF MERIDIAN V. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

APPELLEE INSTITUTED THIS SUIT FOR A DECLARATORY JUDGMENT THAT A 1956
MISSISSIPPI STATUTE IMPOSING A CHARGE ON PUBLIC UTILITIES FOR THE USE
OF PUBLIC STREETS AND PLACES DOES NOT APPLY TO IT, AND, IF IT DOES,
VIOLATES THE FEDERAL AND STATE CONSTITUTIONS.  IT WAS TRIED BEFORE A
SINGLE DISTRICT JUDGE.   AFTER TRIAL THE DISTRICT JUDGE WROTE AN
OPINION (154 F. SUPP.  736) AND THEN ENTERED A JUDGMENT WHICH DECLARED
THE STATUTE IN CONFLICT WITH THE STATE AND FEDERAL CONSTITUTIONS AND
THUS BEYOND THE POWER OF THE MISSISSIPPI LEGISLATURE TO ENACT.  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED THE JUDGMENT OF THE
DISTRICT COURT.  256 F.2D 83.  AN APPEAL WAS TAKEN TO THIS COURT
PURSUANT TO 28 U.S.C. SEC. 1254(2), PROVIDING FOR APPEAL OF A DECISION
OF A COURT OF APPEALS WHERE APPELLANT RELIES ON A STATE STATUTE HELD TO
BE "INVALID AS REPUGNANT TO THE CONSTITUTION, TREATIES OR LAWS OF THE
UNITED STATES."  APPELLEE MOVED TO DISMISS THE APPEAL, CONTENDING THAT
REVIEW BY APPEAL DOES NOT LIE BECAUSE THE COURT OF APPEALS DECISION
DECLARING THE STATE STATUTE UNCONSTITUTIONAL WAS BASED ON THE
CONSTITUTION OF MISSISSIPPI AS WELL AS THE FEDERAL CONSTITUTION. 
SUBSEQUENTLY, APPELLANT MOVED THE COURT TO VACATE THE JUDGMENT OF THE
COURT OF APPEALS AND REMAND THE CASE TO THE DISTRICT COURT WITH
INSTRUCTIONS TO VACATE ITS JUDGMENT AND CONVENE A THREE-JUDGE COURT
UNDER 28 U.S.C. SECS. 2281 AND 2284 TO CONSIDER APPELLEE'S COMPLAINT. 
APPELLEE OPPOSED THE MOTION.  WITHOUT PASSING JUDGMENT ON THE MERITS OF
THAT MOTION (CF. FEDERAL HOUSING ADMINISTRATION V. THE DARLINGTON,
INC., 352 U.S. 977), WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND THE CASE TO THE DISTRICT COURT WITH DIRECTIONS TO HOLD THE CAUSE
WHILE THE PARTIES REPAIR TO A STATE TRIBUNAL FOR AN AUTHORITATIVE
DECLARATION OF APPLICABLE STATE LAW. 

PROPER EXERCISE OF FEDERAL JURISDICTION REQUIRES THAT CONTROVERSIES
INVOLVING UNSETTLED QUESTIONS OF STATE LAW BE DECIDED IN THE STATE
TRIBUNALS PRELIMINARY TO A FEDERAL COURT'S CONSIDERATION OF THE
UNDERLYING FEDERAL CONSTITUTIONAL QUESTIONS.  SEE RAILROAD COMM'N V.
PULLMAN CO., 312 U.S. 496.  THAT IS ESPECIALLY DESIRABLE WHERE THE
QUESTIONS OF STATE LAW ARE ENMESHED WITH FEDERAL QUESTIONS.  SPECTOR
MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101, 105.  HERE, THE STATE LAW
PROBLEMS ARE DELICATE ONES, THE RESOLUTION OF WHICH IS NOT WITHOUT
SUBSTANTIAL DIFFICULTY - CERTAINLY FOR A FEDERAL COURT.  CF. THOMPSON
V. MAGNOLIA PETROLEUM CO., 309 U.S. 478, 483.  IN SUCH A CASE, WHEN THE
STATE COURT'S INTERPRETATION OF THE STATUTE OR EVALUATION OF ITS
VALIDITY UNDER THE STATE CONSTITUTION MAY OBVIATE ANY NEED TO CONSIDER
ITS VALIDITY UNDER THE FEDERAL CONSTITUTION, THE FEDERAL COURT SHOULD
HOLD ITS HAND, LEST IT RENDER A CONSTITUTIONAL DECISION UNNECESSARILY. 
RAILROAD COMM'N V. PULLMAN CO., SUPRA; SPECTOR MOTOR CO. V. MCLAUGHLIN,
SUPRA, 104-105.  SEE LEITER MINERALS, INC., V. UNITED STATES, 352 U.S.
220, 228-229. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS
OPINION. 
..END :




















CHAFFIN V. CALIFORNIA 358 U.S. 642 


NO. 549.  DECIDED FEBRUARY 24, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CHAFFIN ET AL. V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















ANDERSON V. CORPORATION COMMISSION OF OKLAHOMA 358 U.S. 642 


NO. 576.  DECIDED FEBRUARY 24, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  327 P.2D 699. 


ANDERSON V. CORPORATION COMMISSION OF OKLAHOMA ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















WEBB V. OHIO 358 U.S. 643 


NO. 427, MISC.  DECIDED FEBRUARY 24, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


WEBB V. OHIO. 

APPEAL FROM THE COURT OF APPEALS OF OHIO, MONTGOMERY COUNTY. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















HANAUER V. ELKINS 358 U.S. 643 


NO. 580.  DECIDED FEBRUARY 24, 1959 - APPEAL DISMISSED - REPORTED BELOW:
217 MD. 213, 141 A.2D 903. 


HANAUER ET AL. V. ELKINS, PRESIDENT OF THE UNIVERSITY OF MARYLAND, ET
AL. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
HAMILTON V. REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL., 293 U.S.
245. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :













UNITED STATES V. HALEY 358 U.S. 644 


NO. 587.  DECIDED FEBRUARY 24, 1959 - 166 F. SUPP. 336, REVERSED. 


UNITED STATES V. HALEY. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  WICKARD V. FILBURN, 317 U.S. 111. 
..END :


















LANDMAN V. MIEDZINSKI 358 U.S. 644 


NO. 589.  DECIDED FEBRUARY 24, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  218 MD. 3, 145 A.2D
220. 


LANDMAN ET AL. V. MIEDZINSKI, SHERIFF, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















KLEIN V. LEE 358 U.S. 645 


NO. 234, MISC.  DECIDED FEBRUARY 24, 1959 - REPORTED BELOW:  254 F.2D
188. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO DISTRICT
COURT WITH DIRECTIONS TO DISMISS THE COMPLAINT AS MOOT. 

KLEIN V. LEE, ADJUDICATION OFFICER, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION TO SUBSTITUTE HERBERT E. MCDONALD AS THE PARTY RESPONDENT
IN THE PLACE OF V.O. LEE, RETIRED, IS GRANTED.  THE MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AND THE PETITION FOR WRIT OF CERTIORARI ARE
GRANTED.  THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT IS VACATED, AND THE CASE IS REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS TO DISMISS THE COMPLAINT AS MOOT. 
..END :








CHAPMAN V. OHIO 358 U.S. 645 


NO. 363, MISC.  DECIDED FEBRUARY 24, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


CHAPMAN V. OHIO. 

APPEAL FROM THE COURT OF APPEALS OF OHIO, FRANKLIN COUNTY. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















RISER V. WARDEN, CALIFORNIA STATE PRISON 358 U.S. 646 


NO. 331, MISC.  DECIDED FEBRUARY 24, 1959 - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  SEE 47 CAL. 2D
566. 


RISER V. WARDEN, CALIFORNIA STATE PRISON. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















JOHNSON V. OHIO 358 U.S. 646 


NO. 428, MISC.  DECIDED FEBRUARY 24, 1959 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


JOHNSON V. OHIO. 

APPEAL FROM THE COURT OF APPEALS OF OHIO, MONTGOMERY COUNTY. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















DRAPER V. UNITED STATES 358 U.S. 307 


NO. 136.  ARGUED DECEMBER 11, 1958 - DECIDED JANUARY 26, 1959 - 248 F.2D
295, AFFIRMED. 


AN EXPERIENCED FEDERAL NARCOTICS AGENT WAS TOLD BY AN INFORMER, WHOSE
INFORMATION THE AGENT HAD ALWAYS FOUND TO BE ACCURATE AND RELIABLE,
THAT PETITIONER, WHOM THE AGENT DID NOT KNOW BUT WHO WAS DESCRIBED BY
THE INFORMER, WAS PEDDLING NARCOTICS, HAD GONE TO CHICAGO TO OBTAIN A
SUPPLY, AND WOULD RETURN ON A CERTAIN TRAIN ON A CERTAIN DAY OR THE DAY
AFTER.  THE AGENT MET THE TRAIN, EASILY RECOGNIZED PETITIONER FROM THE
INFORMER'S DESCRIPTION, AND, WITHOUT A WARRANT, ARRESTED HIM, SEARCHED
HIM AND SEIZED NARCOTICS AND A HYPODERMIC SYRINGE FOUND IN HIS
POSSESSION.  THESE WERE LATER ADMITTED IN EVIDENCE OVER PETITIONER'S
OBJECTION AT THE TRIAL AT WHICH HE WAS CONVICTED OF VIOLATING A FEDERAL
NARCOTICS LAW.  HELD:  THE ARREST, SEARCH AND SEIZURE WERE LAWFUL AND
THE ARTICLES SEIZED WERE PROPERLY ADMITTED IN EVIDENCE AT PETITIONER'S
TRIAL.  PP. 308-314. 

(A)  EVEN IF THE INFORMATION RECEIVED BY THE AGENT FROM THE INFORMER
WAS "HEARSAY," THE AGENT WAS LEGALLY ENTITLED TO CONSIDER IT IN
DETERMINING WHETHER HE HAD "PROBABLE CAUSE," WITHIN THE MEANING OF THE
FOURTH AMENDMENT, AND "REASONABLE GROUNDS," WITHIN THE MEANING OF 26
U.S.C. SEC. 7607, TO BELIEVE THAT PETITIONER HAD COMMITTED OR WAS
COMMITTING A VIOLATION OF THE NARCOTICS LAWS.  PP. 310-312. 

(B)  THE INFORMATION IN THE POSSESSION OF THE NARCOTICS AGENT WAS
SUFFICIENT TO SHOW PROBABLE CAUSE AND REASONABLE GROUNDS TO BELIEVE
THAT PETITIONER HAD VIOLATED OR WAS VIOLATING THE NARCOTICS LAWS AND TO
JUSTIFY HIS ARREST WITHOUT A WARRANT.  PP. 312-313. 

(C)  THE ARREST WAS LAWFUL, AND THE SUBSEQUENT SEARCH AND SEIZURE,
HAVING BEEN MADE INCIDENT TO A LAWFUL ARREST, WERE LIKEWISE VALID.  PP.
310-311, 314. 

DRAPER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF KNOWINGLY CONCEALING AND TRANSPORTING
NARCOTIC DRUGS IN DENVER, COLORADO, IN VIOLATION OF 35 STAT. 614, AS
AMENDED, 21 U.S.C. SEC. 174.  HIS CONVICTION WAS BASED IN PART ON THE
USE IN EVIDENCE AGAINST HIM OF TWO "ENVELOPES CONTAINING (865 GRAINS
OF) HEROIN" AND A HYPODERMIC SYRINGE THAT HAD BEEN TAKEN FROM HIS
PERSON, FOLLOWING HIS ARREST, BY THE ARRESTING OFFICER.  BEFORE THE
TRIAL, HE MOVED TO SUPPRESS THAT EVIDENCE AS HAVING BEEN SECURED
THROUGH AN UNLAWFUL SEARCH AND SEIZURE.  AFTER HEARING, THE DISTRICT
COURT FOUND THAT THE ARRESTING OFFICER HAD PROBABLE CAUSE TO ARREST
PETITIONER WITHOUT A WARRANT AND THAT THE SUBSEQUENT SEARCH AND SEIZURE
WERE THEREFORE INCIDENT TO A LAWFUL ARREST, AND OVERRULED THE MOTION TO
SUPPRESS.  146 F. SUPP. 689.   AT THE SUBSEQUENT TRIAL, THAT EVIDENCE
WAS OFFERED AND, OVER PETITIONER'S RENEWED OBJECTION, WAS RECEIVED IN
EVIDENCE, AND THE TRIAL RESULTED, AS WE HAVE SAID, IN PETITIONER'S
CONVICTION.  THE COURT OF APPEALS AFFIRMED THE CONVICTION, 248 F.2D
295, AND CERTIORARI WAS SOUGHT ON THE SOLE GROUND THAT THE SEARCH AND
SEIZURE VIOLATED THE FOURTH AMENDMENT (FN1) AND THEREFORE THE USE OF
THE HEROIN IN EVIDENCE VITIATED THE CONVICTION.  WE GRANTED THE WRIT TO
DETERMINE THAT QUESTION.  357 U.S. 935. 

THE EVIDENCE OFFERED AT THE HEARING ON THE MOTION TO SUPPRESS WAS NOT
SUBSTANTIALLY DISPUTED.  IT ESTABLISHED THAT ONE MARSH, A FEDERAL
NARCOTIC AGENT WITH 29 YEARS' EXPERIENCE, WAS STATIONED AT DENVER; THAT
ONE HEREFORD HAD BEEN ENGAGED AS A "SPECIAL EMPLOYEE" OF THE BUREAU OF
NARCOTICS AT DENVER FOR ABOUT SIX MONTHS, AND FROM TIME TO TIME GAVE
INFORMATION TO MARSH REGARDING VIOLATIONS OF THE NARCOTIC LAWS, FOR
WHICH HEREFORD WAS PAID SMALL SUMS OF MONEY, AND THAT MARSH HAD ALWAYS
FOUND THE INFORMATION GIVEN BY HEREFORD TO BE ACCURATE AND RELIABLE. 
ON SEPTEMBER 3, 1956, HEREFORD TOLD MARSH THAT JAMES DRAPER
(PETITIONER) RECENTLY HAD TAKEN UP ABODE AT A STATED ADDRESS IN DENVER
AND "WAS PEDDLING NARCOTICS TO SEVERAL ADDICTS" IN THAT CITY.  FOUR
DAYS LATER, ON SEPTEMBER 7, HEREFORD TOLD MARSH "THAT DRAPER HAD GONE
TO CHICAGO THE DAY BEFORE (SEPTEMBER 6) BY TRAIN (AND) THAT HE WAS
GOING TO BRING BACK THREE OUNCES OF HEROIN (AND) THAT HE WOULD RETURN
TO DENVER EITHER ON THE MORNING OF THE 8TH OF SPETEMBER OR THE MORNING
OF THE 9TH OF SEPTEMBER ALSO BY TRAIN."  HEREFORD ALSO GAVE MARSH A
DETAILED PHYSICAL DESCRIPTION OF DRAPER AND OF THE CLOTHING HE WAS
WEARING, (FN2) AND SAID THAT HE WOULD BE CARRYING "A TAN ZIPPER BAG,"
AND THAT HE HABITUALLY "WALKED REAL FAST." 

ON THE MORNING OF SEPTEMBER 8, MARSH AND A DENVER POLICE OFFICER WENT
TO THE DENVER UNION STATION AND KEPT WATCH OVER ALL INCOMING TRAINS
FROM CHICAGO, BUT THEY DID NOT SEE ANYONE FITTING THE DESCRIPTION THAT
HEREFORD HAD GIVEN.  REPEATING THE PROCESS ON THE MORNING OF SEPTEMBER
9, THEY SAW A PERSON, HAVING THE EXACT PHYSICAL ATTRIBUTES AND WEARING
THE PRECISE CLOTHING DESCRIBED BY HEREFORD, ALIGHT FROM AN INCOMING
CHICAGO TRAIN AND START WALKING "FAST" TOWARD THE EXIT.  HE WAS
CARRYING A TAN ZIPPER BAG IN HIS RIGHT HAND AND THE LEFT WAS THRUST IN
HIS RAINCOAT POCKET.  MARSH, ACCOMPANIED BY THE POLICE OFFICER,
OVERTOOK, STOPPED AND ARRESTED HIM.  THEY THEN SEARCHED HIM AND FOUND
THE TWO "ENVELOPES CONTAINING HEROIN" CLUTCHED IN HIS LEFT HAND IN HIS
RAINCOAT POCKET, AND FOUND THE SYRINGE IN THE TAN ZIPPER BAG.  MARSH
THEN TOOK HIM (PETITIONER) INTO CUSTODY.  HEREFORD DIED FOUR DAYS AFTER
THE ARREST AND THEREFORE DID NOT TESTIFY AT THE HEARING ON THE MOTION. 

26 U.S.C. (SUPP. V) SEC. 7607, ADDED BY SEC. 104(A) OF THE NARCOTIC
CONTROL ACT OF 1956, 70 STAT. 579, PROVIDES, IN PERTINENT PART: 

"THE COMMISSIONER  ...  AND AGENTS, OF THE BUREAU OF NARCOTICS  ...
MAY: 

     *         *         *         *     * 

"(2)  MAKE ARRESTS WITHOUT WARRANT FOR VIOLATIONS OF ANY LAW OF THE
UNITED STATES RELATING TO NARCOTIC DRUGS  ...  WHERE THE VIOLATION IS
COMMITTED IN THE PRESENCE OF THE PERSON MAKING THE ARREST OR WHERE SUCH
PERSON HAS REASONABLE GROUNDS TO BELIEVE THAT THE PERSON TO BE ARRESTED
HAS COMMITTED OR IS COMMITTING SUCH VIOLATION." 

THE CRUCIAL QUESTION FOR US THEN IS WHETHER KNOWLEDGE OF THE RELATED
FACTS AND CIRCUMSTANCES GAVE MARSH "PROBABLE CAUSE" WITHIN THE MEANING
OF THE FOURTH AMENDMENT, AND "REASONABLE GROUNDS" WITHIN THE MEANING OF
SEC. 104(A), SUPRA, (FN3) TO BELIEVE THAT PETITIONER HAD COMMITTED OR
WAS COMMITTING A VIOLATION OF THE NARCOTIC LAWS.  IF IT DID, THE
ARREST, THOUGH WITHOUT A WARRANT, WAS LAWFUL AND THE SUBSEQUENT SEARCH
OF PETITIONER'S PERSON AND THE SEIZURE OF THE FOUND HEROIN WERE VALIDLY
MADE INCIDENT TO A LAWFUL ARREST, AND THEREFORE THE MOTION TO SUPPRESS
WAS PROPERLY OVERRULED AND THE HEROIN WAS COMPETENTLY RECEIVED IN
EVIDENCE AT THE TRIAL.  WEEKS V. UNITED STATES, 232 U.S. 383, 392;
CARROLL V. UNITED STATES, 267 U.S. 132, 158; AGNELLO V. UNITED STATES,
269 U.S. 20, 30; GIORDENELLO V. UNITED STATES, 357 U.S. 480, 483. 

PETITIONER DOES NOT DISPUTE THIS ANALYSIS OF THE QUESTION FOR
DECISION.  RATHER, HE CONTENDS (1) THAT THE INFORMATION GIVEN BY
HEREFORD TO MARSH WAS "HEARSAY" AND, BECAUSE HEARSAY IS NOT LEGALLY
COMPETENT EVIDENCE IN A CRIMINAL TRIAL, COULD NOT LEGALLY HAVE BEEN
CONSIDERED, BUT SHOULD HAVE BEEN PUT OUT OF MIND, BY MARSH IN ASSESSING
WHETHER HE HAD "PROBABLE CAUSE" AND "REASONABLE GROUNDS" TO ARREST
PETITIONER WITHOUT A WARRANT, AND (2) THAT, EVEN IF HEARSAY COULD
LAWFULLY HAVE BEEN CONSIDERED, MARSH'S INFORMATION SHOULD BE HELD
INSUFFICIENT TO SHOW "PROBABLE CAUSE" AND "REASONABLE GROUNDS" TO
BELIEVE THAT PETITIONER HAD VIOLATED OR WAS VIOLATING THE NARCOTIC LAWS
AND TO JUSTIFY HIS ARREST WITHOUT A WARRANT. 

CONSIDERING THE FIRST CONTENTION, WE FIND PETITIONER ENTIRELY IN
ERROR.  BRINEGAR V. UNITED STATES, 338 U.S. 160, 172-173, HAS SETTLED
THE QUESTION THE OTHER WAY.  THERE, IN A SIMILAR SITUATION, THE CONVICT
CONTENDED "THAT THE FACTORS RELATING TO INADMISSIBILITY OF THE EVIDENCE
(FOR) PURPOSES OF PROVING GUILT AT THE TRIAL, DEPRIVED THE EVIDENCE AS
A WHOLE OF SUFFICIENCY TO SHOW PROBABLE CAUSE FOR THE SEARCH  ...  ." 
ID., AT 172.  BUT THIS COURT, REJECTING THAT CONTENTION, SAID:  "THE SO
CALLED DISTINCTION PLACES A WHOLLY UNWARRANTED EMPHASIS UPON THE
CRITERION OF ADMISSIBILITY IN EVIDENCE, TO PROVE THE ACCUSED'S GUILT,
OF THE FACTS RELIED UPON TO SHOW PROBABLE CAUSE.  THAT EMPHASIS, WE
THINK, GOES MUCH TOO FAR IN CONFUSING AND DISREGARDING THE DIFFERENCE
BETWEEN WHAT IS REQUIRED TO PROVE GUILT IN A CRIMINAL CASE AND WHAT IS
REQUIRED TO SHOW PROBABLE CAUSE FOR ARREST OR SEARCH.  IT APPROACHES
REQUIRING (IF IT DOES NOT IN PRACTICAL EFFECT REQUIRE) PROOF SUFFICIENT
TO ESTABLISH GUILT IN ORDER TO SUBSTANTIATE THE EXISTENCE OF PROBABLE
CAUSE.  THERE IS A LARGE DIFFERENCE BETWEEN THE TWO THINGS TO BE PROVED
(GUILT AND PROBABLE CAUSE), AS WELL AS BETWEEN THE TRIBUNALS WHICH
DETERMINE THEM, AND THEREFORE A LIKE DIFFERENCE IN THE QUANTA AND MODES
OF PROOF REQUIRED TO ESTABLISH THEM."  (FN4)  338 U.S., AT 172-173. 

NOR CAN WE AGREE WITH PETITIONER'S SECOND CONTENTION THAT MARSH'S
INFORMATION WAS INSUFFICIENT TO SHOW PROBABLE CAUSE AND REASONABLE
GROUNDS TO BELIEVE THAT PETITIONER HAD VIOLATED OR WAS VIOLATING THE
NARCOTIC LAWS AND TO JUSTIFY HIS ARREST WITHOUT A WARRANT.  THE
INFORMATION GIVEN TO NARCOTIC AGENT MARSH BY "SPECIAL EMPLOYEE"
HEREFORD MAY HAVE BEEN HEARSAY TO MARSH, BUT COMING FROM ONE EMPLOYED
FOR THAT PURPOSE AND WHOSE INFORMATION HAD ALWAYS BEEN FOUND ACCURATE
AND RELIABLE, IT IS CLEAR THAT MARSH WOULD HAVE BEEN DERELICT IN HIS
DUTIES HAD HE NOT PURSUED IT.  AND WHEN, IN PURSUING THAT INFORAMTION,
HE SAW A MAN, HAVING THE EXACT PHYSICAL ATTRIBUTES AND WEARING THE
PRECISE CLOTHING AND CARRYING THE TAN ZIPPER BAG THAT HEREFORD HAD
DESCRIBED, ALIGHT FROM ONE OF THE VERY TRAINS FROM THE VERY PLACE
STATED BY HEREFORD AND START TO WALK AT A "FAST" PACE TOWARD THE
STATION EXIT, MARSH HAD PERSONALLY VERIFIED EVERY FACET OF THE
INFORMATION GIVEN HIM BY HEREFORD EXCEPT WHETHER PETITIONER HAD
ACCOMPLISHED HIS MISSION AND HAD THE THREE OUNCES OF HEROIN ON HIS
PERSON OR IN HIS BAG.  AND SURELY, WITH EVERY OTHER BIT OF HEREFORD'S
INFORMATION BEING THUS PERSONALLY VERIFIED, MARSH HAD "REASONABLE
GROUNDS" TO BELIEVE THAT THE REMAINING UNIVERIFIED BIT OF HEREFORD'S
INFORMATION - THAT DRAPER WOULD HAVE THE HEROIN WITH HIM - WAS LIKEWISE
TRUE. 

"IN DEALING WITH PROBABLE CAUSE,  ...  AS THE VERY NAME IMPLIES, WE
DEAL WITH PROBABILITIES.  THESE ARE NOT TECHNICAL; THEY ARE THE FACTUAL
AND PRACTICAL CONSIDERATIONS OF EVERYDAY LIFE ON WHICH REASONABLE AND
PRUDENT MEN, NOT LEGAL TECHNICIANS, ACT."  BRINEGAR V. UNITED STATES,
SUPRA, AT 175.  PROBABLE CAUSE EXISTS WHERE "THE FACTS AND
CIRCUMSTANCES WITHIN (THE ARRESTING OFFICERS') KNOWLEDGE AND OF WHICH
THEY HAD REASONABLY TRUSTWORTHY INFORMATION (ARE) SUFFICIENT IN
THEMSELVES TO WARRANT A MAN OF REASONABLE CAUTION IN THE BELIEF THAT"
AN OFFENSE HAS BEEN OR IS BEING COMMITTED.  CARROLL V. UNITED STATES,
267 U.S. 132, 162.  (FN5)

WE BELIEVE THAT, UNDER THE FACTS AND CIRCUMSTANCES HERE, MARSH HAD
PROBABLE CAUSE AND REASONABLE GROUNDS TO BELIEVE THAT PETITIONER WAS
COMMITTING A VIOLATION OF THE LAWS OF THE UNITED STATES RELATING TO
NARCOTIC DRUGS AT THE TIME HE ARRESTED HIM.  THE ARREST WAS THEREFORE
LAWFUL, AND THE SUBSEQUENT SEARCH AND SEIZURE, HAVING BEEN MADE
INCIDENT TO THAT LAWFUL ARREST, WERE LIKEWISE VALID.   (FN6)  IT
FOLLOWS THAT PETITIONER'S MOTION TO SUPPRESS WAS PROPERLY DENIED AND
THAT THE SEIZED HEROIN WAS COMPETENT EVIDENCE LAWFULLY RECEIVED AT THE
TRIAL.  AFFIRMED. 

FN1  THE FOURTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES
PROVIDES:  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON
PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED." 

FN2  HEREFORD TOLD MARSH THAT DRAPER WAS A NEGRO OF LIGHT BROWN
COMPLEXION, 27 YEARS OF AGE, 5 FEET 8 INCHES TALL, WEIGHED ABOUT 160
POUNDS, AND THAT HE WAS WEARING A LIGHT COLORED RAINCOAT, BROWN SLACKS
AND BLACK SHOES. 

FN3  THE TERMS "PROBABLE CAUSE" AS USED IN THE FOURTH AMENDMENT AND
"REASONABLE GROUNDS" AS USED IN SEC. 104(A) OF THE NARCOTIC CONTROL
ACT, 70 STAT. 570, ARE SUBSTANTIAL EQUIVALENTS OF THE SAME MEANING. 
UNITED STATES V. WALKER, 246 F.2D 519, 526 (C.A. 7TH CIR.); CF. UNITED
STATES V. BIANCO, 189 F.2D 716, 720 (C.A. 3D CIR.). 

FN4  IN UNITED STATES V. HEITNER, 148 F.2D 105, 106 (C.A.2D CIR.),
JUDGE LEARNED HAND SAID "IT IS WELL SETTLED THAT AN ARREST MAY BE MADE
UPON HEARSAY EVIDENCE; AND INDEED, THE 'REASONABLE CAUSE' NECESSARY TO
SUPPORT AN ARREST CANNOT DEMAND THE SAME STRICTNESS OF PROOF AS THE
ACCUSED'S GUILT UPON A TRIAL, UNLESS THE POWERS OF PEACE OFFICERS ARE
TO BE SO CUT DOWN THAT THEY CANNOT POSSIBLY PERFORM THEIR DUTIES." 

GRAU V. UNITED STATES, 287 U.S. 124, 128, CONTAINS A DICTUM THAT "A
SEARCH WARRANT MAY ISSUE ONLY UPON EVIDENCE WHICH WOULD BE COMPETENT IN
THE TRIAL OF THE OFFENSE BEFORE A JURY (GILES V. UNITED STATES, 284
FED. 208; WAGNER V. UNITED STATES, 8 F.(2D) 581)  ...  ."  BUT THE
PRINCIPLES UNDERLYING THAT PROPOSITION WERE THOROUGHLY DISCREDITED AND
REJECTED IN BRINEGAR V. UNITED STATES, SUPRA, 338 U.S., AT 172-174, AND
NOTES 12 AND 13.  THERE ARE SEVERAL CASES IN THE FEDERAL COURTS THAT
FOLLOWED THE NOW DISCREDITED DICTUM IN THE GRAU CASE, SIMMONS V. UNITED
STATES, 18 F.2D 85, 88; WORTHINGTON V. UNITED STATES, 166 F.2D 557, 564
565; CF. REEVE V. HOWE, 33 F. SUPP. 619, 622; UNITED STATES V. NOVERO,
58 F. SUPP.  275, 279, BUT THE GREAT WEIGHT OF AUTHORITY IS THE OTHER
WAY.  SEE, E.G., WRIGHTSON V. UNITED STATES, 236 F.2D 672 (C.A.D.C.
CIR.); UNITED STATES V. HEITNER, SUPRA (C.A.2D CIR.); UNITED STATES V.
BIANCO, 189 F.2D 716 (C.A. 3D CIR.); WISNIEWSKI V. UNITED STATES, 47
F.2D 825 (C.A. 6TH CIR.); UNITED STATES V. WALKER, 246 F.2D 519 (C.A.
7TH CIR.); MUELLER V. POWELL, 203 F.2D 797 (C.A. 8TH CIR.).  AND SEE
NOTE, 46 HARV. L. REV. 1307, 1310-1311, CRITICIZING THE GRAU DICTUM. 

FN5  TO THE SAME EFFECT ARE:  HUSTY V. UNITED STATES, 282 U.S. 694,
700-701; DUMBRA V. UNITED STATES, 268 U.S. 435, 441; STEELE V. UNITED
STATES NO. 1, 267 U.S. 498, 504-505; STACEY V. EMERY, 97 U.S. 642, 645;
BRINEGAR V. UNITED STATES, WUPRA, AT 176-176. 

THE CHIEF JUSTICE AND MR. JUSTICE FRANKFURTER TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

DECISIONS UNDER THE FOURTH AMENDMENT, (FN1) TAKEN IN THE LONG VIEW,
HAVE NOT GIVEN THE PROTECTION TO THE CITIZEN WHICH THE LETTER AND
SPIRIT OF THE AMENDMENT WOULD SEEM TO REQUIRE.  ONE REASON, I THINK, IS
THAT WHEREVER A CULPRIT IS CAUGHT RED-HANDED, AS IN LEADING FOURTH
AMENDMENT CASES, IT IS DIFFICULT TO ADOPT AND ENFORCE A RULE THAT WOULD
TURN HIM LOOSE.  A RULE PROTECTIVE OF LAW-ABIDING CITIZENS IS NOT APT
TO FLOURISH WHERE ITS ADVOCATES ARE USUALLY CRIMINALS.  YET THE RULE WE
FASHION IS FOR THE INNOCENT AND GUILTY ALIKE.  IF THE WORD OF THE
INFORMER ON WHICH THE PRESENT ARREST WAS MADE IS SUFFICIENT TO MAKE THE
ARREST LEGAL, HIS WORD WOULD ALSO PROTECT THE POLICE WHO, ACTING ON IT,
HAULED THE INNOCENT CITIZEN OFF TO JAIL.    OF COURSE, THE EDUCATION WE
RECEIVE FROM MYSTERY STORIES AND TELEVISION SHOWS TEACHES THAT WHAT
HAPPENED IN THIS CASE IS EFFICIENT POLICE WORK.  THE POLICE ARE TIPPED
OFF THAT A MAN CARRYING NARCOTICS WILL STEP OFF THE MORNING TRAIN.  A
MAN MEETING THE PRECISE DESCRIPTION DOES ALIGHT FROM THE TRAIN.  NO
WARRANT FOR HIS ARREST HAS BEEN - OR, AS I SEE IT, COULD THEN BE -
OBTAINED.  YET HE IS ARRESTED; AND NARCOTICS ARE FOUND IN HIS POCKET
AND A SYRINGE IN THE BAG HE CARRIED.  THIS IS THE FAMILIAR PATTERN OF
CRIME DETECTION WHICH HAS BEEN DINNED INTO PUBLIC CONSCIOUSNESS AS THE
CORRECT AND EFFICIENT ONE.  IT IS, HOWEVER, A DISTORTED REFLECTION OF
THE CONSTITUTIONAL SYSTEM UNDER WHICH WE ARE SUPPOSED TO LIVE. 

WITH ALL DUE DEFERENCE, THE ARREST MADE HERE ON THE MERE WORD OF AN
INFORMER VIOLATED THE SPIRIT OF THE FOURTH AMENDMENT AND THE
REQUIREMENT OF THE LAW, 26 U.S.C. (SUPP. V) SEC. 7607, GOVERNING
ARRESTS IN NARCOTICS CASES.  IF AN ARREST IS MADE WITHOUT A WARRANT,
THE OFFENSE MUST BE COMMITTED IN THE PRESENCE OF THE OFFICER OR THE
OFFICER MUST HAVE "REASONABLE GROUNDS TO BELIEVE THAT THE PERSON TO BE
ARRESTED HAS COMMITTED OR IS COMMITTING" A VIOLATION OF THE NARCOTICS
LAW.  THE ARRESTING OFFICERS DID NOT HAVE A BIT OF EVIDENCE, KNOWN TO
THEM AND AS TO WHICH THEY COULD TAKE AN OATH HAD THEY GONE TO A
MAGISTRATE FOR A WARRANT, THAT PETITIONER HAD COMMITTED ANY CRIME.  THE
ARRESTING OFFICERS DID NOT KNOW THE GROUNDS ON WHICH THE INFORMER BASED
HIS CONCLUSION; NOR DID THEY SEEK TO FIND OUT WHAT THEY WERE.  THEY
ACTED SOLELY ON THE INFORMER'S WORD.  IN MY VIEW THAT WAS NOT ENOUGH. 

THE RULE WHICH PERMITS ARREST FOR FELONIES, AS DISTINGUISHED FROM
MISDEMEANORS, IF THERE ARE REASONABLE GROUNDS FOR BELIEVING A CRIME HAS
BEEN OR IS BEING COMMITTED (CARROLL V. UNITED STATES, 267 U.S. 132,
157), GREW OUT OF THE NEED TO PROTECT THE PUBLIC SAFETY BY MAKING
PROMPT ARRESTS.  ID.  YET, APART FROM THOSE CASES WHERE THE CRIME IS
COMMITTED IN THE PRESENCE OF THE OFFICER, ARRESTS WITHOUT WARRANTS,
LIKE SEARCHES WITHOUT WARRANTS, ARE THE EXCEPTION, NOT THE RULE IN OUR
SOCIETY.  LORD CHIEF JUSTICE PRATT IN WILKES V. WOOD, 19 HOW.  ST. TR.
1153, CONDEMNED NOT ONLY THE ODIOUS GENERAL WARRANT, (FN2) IN WHICH THE
NAME OF THE CITIZEN TO BE ARRESTED WAS LEFT BLANK, BUT THE WHOLE SCHEME
OF SEIZURES AND SEARCHES (FN3) UNDER "A DISCRETIONARY POWER" OF LAW
OFFICERS TO ACT "WHEREVER THEIR SUSPICIONS MAY CHANCE TO FALL" - A
PRACTICE WHICH HE DENOUNCED AS "TOTALLY SUBVERSIVE OF THE LIBERTY OF
THE SUBJECT."  ID., AT 1167.  SEE III MAY, CONSTITUTIONAL HISTORY OF
ENGLAND, C. XI. WILKES HAD WRITTEN IN 1762, "TO TAKE ANY MAN INTO
CUSTODY, AND DEPRIVE HIM OF HIS LIBERTY, WITHOUT HAVING SOME SEEMING
FOUNDATION AT LEAST, ON WHICH TO JUSTIFY SUCH A STEP, IS INCONSISTENT
WITH WISDOM AND SOUND POLICY."  THE LIFE AND POLITICAL WRITINGS OF JOHN
WILKES, P. 372. 

GEORGE III IN 1777 PRESSED FOR A BILL WHICH WOULD ALLOW ARRESTS ON
SUSPICION OF TREASON COMMITTED IN AMERICA.  THE WORDS WERE "SUSPECTED
OF" TREASON AND IT WAS TO THESE WORDS THAT WILKES ADDRESSED HIMSELF IN
PARLIAMENT.  "THERE IS NOT A SYLLABLE IN THE BILL OF THE DEGREE OF
PROBABILITY ATTENDING THE SUSPICION  ...  .  IS IT POSSIBLE, SIR, TO
GIVE MORE DESPOTIC POWERS TO A BASHAW OF THE TURKISH EMPIRE?  WHAT
SECURITY IS LEFT FOR THE DEVOTED OBJECTS OF THIS BILL AGAINST THE
MALICE OF A PREJUDICED INDIVIDUAL, A WICKED MAGISTRATE  ...  ?"  THE
SPEECHES OF MR. WILKES, P. 102. 

THESE WORDS AND THE COMPLAINTS AGAINST WHICH THEY WERE DIRECTED WERE
WELL KNOWN ON THIS SIDE OF THE WATER.  HAMILTON WROTE ABOUT "THE
PRACTICE OF ARBITRARY IMPRISONMENTS" WHICH HE DENOUNCED AS "THE
FAVORITE AND MOST FORMIDABLE INSTRUMENTS OF TYRANNY."  THE FEDERALIST
NO. 84.  THE WRITS OF ASSISTANCE, AGAINST WHICH JAMES OTIS PROCLAIMED,
(FN4) WERE VICIOUS IN THE SAME WAY AS THE GENERAL WARRANTS, SINCE THEY
REQUIRED NO SHOWING OF "PROBABLE CAUSE" BEFORE A MAGISTRATE, AND SINCE
THEY ALLOWED THE POLICE TO SEARCH ON SUSPICION AND WITHOUT "REASONABLE
GROUNDS" FOR BELIEVING THAT A CRIME HAD BEEN OR WAS BEING COMMITTED. 
OTIS' PROTEST WAS ELOQUENT; BUT HE LOST THE CASE.  HIS SPEECH, HOWEVER,
RALLIED PUBLIC OPINION.  "THEN AND THERE," WROTE JOHN ADAMS, "THE CHILD
INDEPENDENCE WAS BORN."  10 LIFE AND WORKS OF JOHN ADAMS (1856), P.
248. 

THE ATTITUDE OF AMERICANS TO ARRESTS AND SEARCHES ON SUSPICION WAS
ALSO GREATLY INFLUENCED BY THE LETTRES DE CACHET EXTENSIVELY USED IN
FRANCE.  (FN5)  THIS WAS AN ORDER EMANATING FROM THE KING AND
COUNTERSIGNED BY A MINISTER DIRECTING THE SEIZURE OF A PERSON FOR
PURPOSES OF IMMEDIATE IMPRISONMENT OR EXILE.  THE MINISTERS ISSUED THE
LETTRES IN AN ARBITRARY MANNER, OFTEN AT THE REQUEST OF THE HEAD OF A
NOBLE FAMILY TO PUNISH A DEVIANT SON OR RELATIVE.  SEE MIRABEAU, A
VICTIM OF THE LETTRES DE CACHET, 3 AM. HIST. REV. 19.  ONE WHO WAS SO
ARRESTED MIGHT REMAIN INCARCERATED INDEFINITELY, AS NO LEGAL PROCESS
WAS AVAILABLE BY WHICH HE COULD SEEK RELEASE.  "SINCE THE ACTION OF THE
GOVERNMENT WAS SECRET, HIS FRIENDS MIGHT NOT KNOW WHITHER HE HAD
VANISHED, AND HE MIGHT EVEN BE IGNORANT OF THE CAUSE OF HIS ARREST."  8
THE CAMB.  MOD.  HIST. 50.  IN THE EIGHTEENTH CENTURY THE PRACTICE
AROSE OF ISSUING THE LETTRES IN BLANK, THE NAME TO BE FILLED IN BY THE
LOCAL MANDATORY.  THUS THE KING COULD BE TOLD IN 1770 "THAT NO CITIZEN
OF YOUR REALM IS GUARANTEED AGAINST HAVING HIS LIBERTY SACRIFICED TO
REVENGE.  FOR NO ONE IS GREAT ENOUGH TO BE BEYOND THE HATE OF SOME
MINISTER, NOR SMALL ENOUGH TO BE BEYOND THE HATE OF SOME CLERK."  III
ENCYC.  SOC.  SCI. 138.  AS BLACKSTONE WROTE, "  ...  IF ONCE IT WERE
LEFT IN THE POWER OF ANY, THE HIGHEST, MAGISTRATE TO IMPRISON
ARBITRARILY WHOMEVER HE OR HIS OFFICERS THOUGHT PROPER, (AS IN FRANCE
IT IS DAILY PRACTICED BY THE CROWN,) THERE WOULD SOON BE AN END OF ALL
OTHER RIGHTS AND IMMUNITIES."  I COMMENTARIES (4TH ED. COOLEY).  *135. 

THE VIRGINIA DECLARATION OF RIGHTS, ADOPTED JUNE 12, 1776, INCLUDED
THE FORERUNNER OF THE FOURTH AMENDMENT:  (FN6) 

"THAT GENERAL WARRANTS, WHEREBY AN OFFICER OR MESSENGER MAY BE
COMMANDED TO SEARCH SUSPECTED PLACES WITHOUT EVIDENCE OF A FACT
COMMITTED, OR TO SEIZE ANY PERSON OR PERSONS NOT NAMED, OR WHOSE
OFFENCE IS NOT PARTICULARLY DESCRIBED AND SUPPORTED BY EVIDENCE, ARE
GRIEVOUS AND OPPRESSIVE, AND OUGHT NOT TO BE GRANTED." 

THE REQUIREMENT THAT A WARRANT OF ARREST BE "SUPPORTED BY EVIDENCE"
WAS BY THEN DEEPLY ROOTED IN HISTORY.  AND IT IS INCONCEIVABLE THAT IN
THOSE DAYS, WHEN THE RIGHT OF PRIVACY WAS SO GREATLY CHERISHED, THE
MERE WORD OF AN INFORMER - SUCH AS WE HAVE IN THE PRESENT CASE - WOULD
BE ENOUGH.  FOR WHISPERED CHARGES AND ACCUSATIONS, USED IN LIEU OF
EVIDENCE OF UNLAWFUL ACTS, WERE THE MAIN COMPLAINT OF THE AGE.  FRISBIE
V. BUTLER, KIRBY'S REP.  (CONN.) 1785-1788, P. 213, DECIDED IN 1787,
ILLUSTRATES, I THINK, THE MOOD OF THE DAY IN THE MATTER OF ARRESTS ON
SUSPICION.  A WARRANT OF ARREST AND SEARCH WAS ISSUED BY A JUSTICE OF
THE PEACE ON THE OATH OF A CITIZEN WHO HAD LOST SOME PORK FROM A
CELLAR, THE WARRANT STATING, "SAID BUTLER SUSPECTS ONE BENJAMIN
FRISBIE, OF HARWINTON, TO BE THE PERSON THAT HATH TAKEN SAID PORK." 
THE COURT OF APPEAL REVERSED THE JUDGMENT OF CONVICTION, HOLDING INTER
ALIA THAT THE COMPLAINT "CONTAINED NO DIRECT CHARGE OF THE THEFT, BUT
ONLY AN AVERMENT THAT THE DEFENDANT WAS SUSPECTED TO BE GUILTY."  ID.,
AT 215.  NOTHING BUT SUSPICION IS SHOWN IN THE INSTANT CASE - SUSPICION
OF AN INFORMER, NOT THAT OF THE ARRESTING OFFICERS.  NOR DID THEY SEEK
TO OBTAIN FROM THE INFORMER ANY INFORMATION ON WHICH HE BASED HIS
BELIEF.  THE ARRESTING OFFICERS DID NOT HAVE A BIT OF EVIDENCE THAT THE
PETITIONER HAD COMMITTED OR WAS COMMITTING A CRIME BEFORE THE ARREST. 
THE ONLY EVIDENCE OF GUILT WAS PROVIDED BY THE ARREST ITSELF. 

WHEN THE CONSTITUTION WAS UP FOR ADOPTION, OBJECTIONS WERE MADE THAT
IT CONTAINED NO BILL OF RIGHTS.  AND PATRICK HENRY WAS ONE WHO
COMPLAINED IN PARTICULAR THAT IT CONTAINED NO PROVISION AGAINST
ARBITRARY SEARCHES AND SEIZURES: 

"  ...  GENERAL WARRANTS, BY WHICH AN OFFICER MAY SEARCH SUSPECTED
PLACES, WITHOUT EVIDENCE OF THE COMMISSION OF A FACT, OR SEIZE ANY
PERSON WITHOUT EVIDENCE OF HIS CRIME, OUGHT TO BE PROHIBITED.  AS THESE
ARE ADMITTED, ANY MAN MAY BE SEIZED, ANY PROPERTY MAY BE TAKEN, IN THE
MOST ARBITRARY MANNER, WITHOUT ANY EVIDENCE OR REASON.  EVERY THING THE
MOST SACRED MAY BE SEARCHED AND RANSACKED BY THE STRONG HAND OF POWER. 
WE HAVE INFINITELY MORE REASON TO DREAD GENERAL WARRANTS HERE THAN THEY
HAVE IN ENGLAND, BECAUSE THERE, IF A PERSON BE CONFINED, LIBERTY MAY BE
QUICKLY OBTAINED BY THE WRIT OF HABEAS CORPUS.  BUT HERE A MAN LIVING
MANY HUNDRED MILES FROM THE JUDGES MAY GET IN PRISON BEFORE HE CAN GET
THAT WRIT."  I ELLIOT'S DEBATES 588. 

THE DETERMINATION THAT ARRESTS AND SEARCHES ON MERE SUSPICION WOULD
FIND NO PLACE IN AMERICAN LAW ENFORCEMENT DID NOT ABATE FOLLOWING THE
ADOPTION OF A BILL OF RIGHTS APPLICABLE TO THE FEDERAL GOVERNMENT.  IN
CONNER V. COMMONWEALTH, 3 BINN.  (PA.)  38, AN ARREST WARRANT ISSUED BY
A MAGISTRATE STATING HIS "STRONG REASON TO SUSPECT" THAT THE ACCUSED
HAD COMMITTED A CRIME BECAUSE OF "COMMON RUMOR AND REPORT" WAS HELD
ILLEGAL UNDER A CONSTITUTIONAL PROVISION IDENTICAL IN RELEVANT PART TO
THE FOURTH AMENDMENT.  "IT IS TRUE, THAT BY INSISTING ON AN OATH,
FELONS MAY SOMETIMES ESCAPE.  THIS MUST HAVE BEEN VERY WELL KNOWN TO
THE FRAMERS OF OUR CONSTITUTION; BUT THEY THOUGHT IT BETTER THAT THE
GUILTY SHOULD SOMETIMES ESCAPE, THAN THAT EVERY INDIVIDUAL SHOULD BE
SUBJECT TO VEXATION AND OPPRESSION."  ID., AT 43-44.  IN GRUMON V.
RAYMOND, 1 CONN. 40, THE WARRANT STATED THAT "SEVERAL PERSONS ARE
SUSPECTED" OF STEALING SOME FLOUR WHICH IS CONCEALED IN HYATT'S HOUSE
OR SOMEWHERE ELSE, AND ORDERED THE CONSTABLE TO SEARCH HYATT'S HOUSE OR
OTHER PLACES AND AND ARREST THE SUSPECTED PERSONS IF FOUND WITH THE
FLOUR.  THE COURT HELD THE WARRANT VOID, STATING IT KNEW OF "NO SUCH
PROCESS AS ONE TO ARREST ALL SUSPECTED PERSONS, AND BRING THEM BEFORE A
COURT FOR TRIAL.  IT IS AN IDEA NOT TO BE ENDURED FOR A MOMENT."  ID.,
AT 44.  SEE ALSO FISHER V. MCGIRR, 1 GRAY (MASS.) 1; LIPPMAN V. PEOPLE,
175 ILL. 101, 51 N.E. 872; SOMERVILLE V. RICHARDS, 37 MICH. 299;
COMMONWEALTH V. DANA, 2 METC.  (MASS.)  329, 335-336. 

IT WAS AGAINST THIS LONG BACKGROUND THAT PROFESSORS HOGAN AND SNEE OF
GEORGETOWN UNIVERSITY RECENTLY WROTE: 

"  ...  IT MUST BE BORNE IN MIND THAT ANY ARREST BASED ON SUSPICION
ALONE IS ILLEGAL.  THIS INDISPUTABLE RULE OF LAW HAS GRAVE IMPLICATIONS
FOR A NUMBER OF TRADITIONAL POLICE INVESTIGATIVE PRACTICES.  THE ROUND
UP OR DRAGNET ARREST, THE ARREST ON SUSPICION, FOR QUESTIONING, FOR
INVESTIGATION OR ON AN OPEN CHARGE ALL ARE PROHIBITED BY THE LAW.  IT
IS UNDENIABLE THAT IF THOSE ARRESTS WERE SANCTIONED BY LAW, THE POLICE
WOULD BE IN A POSITION TO INVESTIGATE A CRIME AND TO DETECT THE REAL
CULPRIT MUCH MORE EFFICIENTLY, MUCH MORE ECONOMICALLY, AND WITH MUCH
MORE DISPATCH.  IT IS EQUALLY TRUE, HOWEVER, THAT SOCIETY CANNOT CONFER
SUCH POWER ON THE POLICE WITHOUT RIPPING AWAY MUCH OF THE FABRIC OF A
WAY OF LIFE WHICH SEEKS TO GIVE THE MAXIMUM OF LIBERTY TO THE
INDIVIDUAL CITIZEN.  THE FINGER OF SUSPICION IS A LONG ONE.  IN AN
INDIVIDUAL CASE IT MAY POINT TO ALL OF A CERTAIN RACE, AGE GROUP OR
LOCALE.  COMMONLY IT EXTENDS TO ANY WHO HAVE COMMITTED SIMILAR CRIMES
IN THE PAST.  ARREST ON MERE SUSPICION COLLIDES VIOLENTLY WITH THE
BASIC HUMAN RIGHT OF LIBERTY.  IT CAN BE TOLERATED ONLY IN A SOCIETY
WHICH IS WILLING TO CONCEDE TO ITS GOVERNMENT POWERS WHICH HISTORY AND
EXPERIENCE TEACH ARE THE INEVITABLE ACCOUTREMENTS OF TYRANNY."  47 GEO.
L.J. 1, 22. 

DOWN TO THIS DAY OUR DECISIONS HAVE CLOSELY HEEDED THAT WARNING.  SO
FAR AS I CAN ACCERTAIN THE MERE WORD OF AN INFORMER, NOT BOLSTERED BY
SOME EVIDENCE (FN7) THAT A CRIME HAD BEEN OR WAS BEING COMMITTED, HAS
NEVER BEEN APPROVED BY THIS COURT AS "REASONABLE GROUNDS" FOR MAKING AN
ARREST WITHOUT A WARRANT.  WHETHER THE ACT COMPLAINED OF BE SEIZURE OF
GOODS, SEARCH OF PREMISES, OR THE ARREST OF THE CITIZEN, THE JUDICIAL
INQUIRY HAS BEEN DIRECTED TOWARD THE REASONABLENESS OF INFERENCES TO BE
DRAWN FROM SUSPICIOUS CIRCUMSTANCES ATTENDING THE ACTION THOUGHT TO BE
UNLAWFUL.  EVIDENCE REQUIRED TO PROVE GUILT IS NOT NECESSARY.  BUT THE
ATTENDANT CIRCUMSTANCES MUST BE SUFFICIENT TO GIVE RISE IN THE MIND OF
THE ARRESTING OFFICER AT LEAST TO INFERENCES OF GUILT.  LOCKE V. UNITED
STATES, 7 CRANCH 339; THE THOMPSON, 3 WALL.  155; STACEY V. EMERY, 97
U.S. 642; DIRECTOR GENERAL V. KASTENBAUM, 263 U.S. 25; CARROLL V.
UNITED STATES, 267 U.S. 132, 159-162; UNITED STATES V. DI RE, 332 U.S.
581, 591-592; BRINEGAR V. UNITED STATES, 338 U.S. 160, 165-171. 

THE REQUIREMENT THAT THE ARRESTING OFFICER KNOW SOME FACTS SUGGESTIVE
OF GUILT HAS BEEN VARIOUSLY STATED: 

"IF THE FACTS AND CIRCUMSTANCES BEFORE THE OFFICER ARE SUCH AS TO
WARRANT A MAN OF PRUDENCE AND CAUTION IN BELIEVING THAT THE OFFENSE HAS
BEEN COMMITTED, IT IS SUFFICIENT."  STACEY V. EMERY, SUPRA, AT 645. 

"  ...  GOOD FAITH IS NOT ENOUGH TO CONSTITUTE PROBABLE CAUSE.  THAT
FAITH MUST BE GROUNDED ON FACTS WITHIN KNOWLEDGE OF THE  ...  AGENT,
WHICH IN THE JUDGMENT OF THE COURT WOULD MAKE HIS FAITH REASONABLE." 
DIRECTOR GENERAL V. KASTENBAUM, SUPRA, AT 28. 

EVEN WHEN OFFICERS HAD INFORMATION FAR MORE SUGGESTIVE OF GUILT THAN
THE WORD OF THE INFORMER USED HERE, WE HAVE NOT SUSTAINED ARRESTS
WITHOUT A WARRANT.  IN JOHNSON V. UNITED STATES, 333 U.S. 10, 16, THE
ARRESTING OFFICER NOT ONLY HAD AN INFORMER'S TIP BUT HE ACTUALLY
SMELLED OPIUM COMING OUT OF A ROOM; AND ON BREAKING IN FOUND THE
ACCUSED.  THAT ARREST WAS HELD UNLAWFUL.  YET THE SMELL OF OPIUM IS FAR
MORE TANGIBLE DIRECT EVIDENCE THAN AN UNVERIFIED REPORT THAT SOMEONE IS
GOING TO COMMIT A CRIME.  AND IN UNITED STATES V. DI RE, SUPRA, AN
ARREST WITHOUT A WARRANT OF A MAN SITTING IN A CAR, WHERE COUNTERFEIT
COUPONS HAD BEEN FOUND PASSING BETWEEN TWO MEN, WAS NOT JUSTIFIED IN
ABSENCE OF ANY SHRED OF EVIDENCE IMPLICATING THE DEFENDANT, A THIRD
PERSON.  AND SEE GIACONA V. STATE, 164 TEX. CR. R. 325, 298 S.W.2D
587.  YET THE EVIDENCE BEFORE THOSE OFFICERS WAS MORE POTENT THAN THE
MERE WORD OF THE INFORMER INVOLVED IN THE PRESENT CASE.    THE COURT IS
QUITE CORRECT IN SAYING THAT PROOF OF "REASONABLE GROUNDS" FOR
BELIEVING A CRIME WAS BEING COMMITTED NEED NOT BE PROOF ADMISSIBLE AT
THE TRIAL.  IT COULD BE INFERENCES FROM SUSPICIOUS ACTS, E.G., CONSORT
WITH KNOWN PEDDLERS, THE SURREPTITIOUS PASSING OF A PACKAGE, AN
INTERCEPTED MESSAGE SUGGESTING CRIMINAL ACTIVITIES, OR ANY NUMBER OF
SUCH EVENTS COMING TO THE KNOWLEDGE OF THE OFFICER.  SEE PEOPLE V.
RIOS, 46 CAL. 2D 297, 294 P.2D 39.  BUT, IF HE TAKES THE LAW INTO HIS
OWN HANDS AND DOES NOT SEEK THE PROTECTION OF A WARRANT, HE MUST ACT ON
SOME EVIDENCE KNOWN TO HIM.  (FN8)  THE LAW GOES FAR TO PROTECT THE
CITIZEN.  EVEN SUSPICIOUS ACTS OBSERVED BY THE OFFICERS MAY BE AS
CONSISTENT WITH INNOCENCE AS WITH GUILT.  THAT IS NOT ENOUGH, FOR EVEN
THE GUILTY MAY NOT BE IMPLICATED ON SUSPICION ALONE.  BAUMBOY V. UNITED
STATES, 24 F.2D 512.  THE REASON IS, AS I HAVE SAID, THAT THE STANDARD
SET BY THE CONSTITUTION AND BY THE STATUTE IS ONE THAT WILL PROTECT
BOTH THE OFFICER AND THE CITIZEN.  FOR IF THE OFFICER ACTS WITH
"PROBABLE CAUSE" OR ON "REASONABLE GROUNDS," HE IS PROTECTED EVEN
THOUGH THE CITIZEN IS INNOCENT.  (FN9)  THIS IMPORTANT REQUIREMENT
SHOULD BE STRICTLY ENFORCED, LEST THE WHOLE PROCESS OF ARREST REVERT
ONCE MORE TO WHISPERED ACCUSATIONS BY PEOPLE.  WHEN WE LOWER THE GUARDS
AS WE DO TODAY, WE RISK MAKING THE ROLE OF THE INFORMER - ODIOUS IN OUR
HISTORY - ONCE MORE SUPREME.  I THINK THE CORRECT RULE WAS STATED IN
POLDO V. UNITED STATES, 55 F.2D 866, 869.  "MERE SUSPICION IS NOT
ENOUGH; THERE MUST BE CIRCUMSTANCES REPRESENTED TO THE OFFICERS THROUGH
THE TESTIMONY OF THEIR SENSES SUFFICIENT TO JUSTIFY THEM IN A GOOD
FAITH BELIEF THAT THE DEFENDANT HAD VIOLATED THE LAW." 

HERE THE OFFICERS HAD NO EVIDENCE - APART FROM THE MERE WORD OF AN
INFORMER - THAT PETITIONER WAS COMMITTING A CRIME.  THE FACT THAT
PETITIONER WALKED FAST AND CARRIED A TAN ZIPPER BAG WAS NOT EVIDENCE OF
ANY CRIME.  THE OFFICERS KNEW NOTHING EXCEPT WHAT THEY HAD BEEN TOLD BY
THE INFORMER.  IF THEY WENT TO A MAGISTRATE TO GET A WARRANT OF ARREST
AND RELIED SOLELY ON THE REPORT OF THE INFORMER, IT IS NOT CONCEIVABLE
TO ME THAT ONE WOULD BE GRANTED.  SEE GIORDENELLO V. UNITED STATES, 357
U.S. 480, 486.  FOR THEY COULD NOT PRESENT TO THE MAGISTRATE ANY OF THE
FACTS WHICH THE INFORMER MAY HAVE HAD.  THEY COULD SWEAR ONLY TO THE
FACT THAT THE INFORMER HAD MADE THE ACCUSATION.  THEY COULD SWEAR TO NO
EVIDENCE THAT LAY IN THEIR OWN KNOWLEDGE.  THEY COULD PRESENT, ON
INFORMATION AND BELIEF, NO FACTS WHICH THE INFORMER DISCLOSED.  NO
MAGISTRATE COULD ISSUE A WARRANT ON THE MERE WORD OF AN OFFICER,
WITHOUT MORE.  (FN10) SEE GIORDENELLO V. UNITED STATES, SUPRA.  WE ARE
NOT JUSTIFIED IN LOWERING THE STANDARD WHEN AN ARREST IS MADE WITHOUT A
WARRANT AND ALLOWING THE OFFICERS MORE LEEWAY THAN WE GRANT THE
MAGISTRATE. 

WITH ALL DEFERENCE I THINK WE BREAK WITH TRADITION WHEN WE SUSTAIN
THIS ARREST.  WE SAID IN UNITED STATES V. DI RE, SUPRA, AT 595, "  ...
A SEARCH IS NOT TO BE MADE LEGAL BY WHAT IT TURNS UP.  IN LAW IT IS
GOOD OR BAD WHEN IT STARTS AND DOES NOT CHANGE CHARACTER FROM ITS
SUCCESS."  IN THIS CASE IT WAS ONLY AFTER THE ARREST AND SEARCH WERE
MADE THAT THERE WAS A SHRED OF EVIDENCE KNOWN TO THE OFFICERS THAT A
CRIME WAS IN THE PROCESS OF BEING COMMITTED.  (FN11) 

FN1  THE FOURTH AMENDMENT PROVIDES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

FN2  THE GENERAL WARRANT WAS DECLARED ILLEGAL BY THE HOUSE OF COMMONS
IN 1766.  SEE 16 HANSARD, PARL.  HIST.  ENG., 207. 

FN3  THE NAMELESS GENERAL WARRANT WAS NOT THE ONLY VEHICLE FOR
INTRUDING ON THE PRIVACY OF THE SUBJECTS WITHOUT A VALID BASIS FOR
BELIEVING THEM GUILTY OF OFFENSES.  IN DECLARING ILLEGAL A WARRANT TO
SEARCH A PLAINTIFF'S HOUSE FOR EVIDENCE OF LIBEL, ISSUED BY THE
SECRETARY OF STATE WITHOUT ANY PROOF THAT THE NAMED ACCUSED WAS THE
AUTHOR OF THE ALLEGED LIBELS, LORD CAMDEN SAID, "WE CAN SAFELY SAY
THERE IS NO LAW IN THIS COUNTRY TO JUSTIFY THE DEFENDANTS IN WHAT THEY
HAVE DONE; IF THERE WAS, IT WOULD DESTROY ALL THE COMFORTS OF
SOCIETY."  ENTICK V. CARRINGTON, 2 WILS.  K.B. 275, 291. 

FN4  SEE QUINCY'S MASS. REP., 1761-1772, APPENDIX I, P. 469. 

FN5  "EXPERIENCE  ...  HAS TAUGHT US THAT THE POWER (TO MAKE ARRESTS,
SEARCHES AND SEIZURES) IS ONE OPEN TO ABUSE.  THE MOST NOTABLE
HISTORICAL INSTANCE OF IT IS THAT OF LETTRES DE CACHET.  OUR
CONSTITUTION WAS FRAMED DURING THE SEETHINGS OF THE FRENCH REVOLUTION. 
THE THOUGHT WAS TO MAKE LETTRES DE CACHET IMPOSSIBLE WITH US."  UNITED
STATES V. INNELLI, 286 F. 731. 

FN6  SEE ALSO MARYLAND DECLARATION OF RIGHTS (1776), ART. XXIII;
MASSACHUSETTS CONSTITUTION (1780), PART FIRST, ART. XIV; NEW HAMPSHIRE
CONSTITUTION (1784), PART I, ART. XIX; NORTH CAROLINA DECLARATION OF
RIGHTS (1776), ART. XI; PENNSYLVANIA CONSTITUTION (1776), ART. X. 

FN7  HALE, WHO TRACED THE EVOLUTION OF ARRESTS WITHOUT WARRANTS IN
THE HISTORY OF THE PLEAS OF THE CROWN (1ST AM. ED. 1847), STATES THAT
WHILE OFFICERS NEED AT TIMES TO ACT ON INFORMATION FROM OTHERS, THEY
MUST MAKE THAT INFORMATION, SO FAR AS THEY CAN, THEIR OWN.  HE PUTS A
CASE WHERE A, SUSPECTING B "ON REASONABLE GROUNDS" OF BEING A FELON,
ASKS AN OFFICER TO ARREST B. THE DUTY OF THE OFFICER WAS STATED AS
FOLLOWS: 

"HE OUGHT TO INQUIRE AND EXAMINE THE CIRCUMSTANCES AND CAUSES OF THE
SUSPICION OF A. WHICH THO HE CANNOT DO IT UPON OATH, YET SUCH AN
INFORMATION MAY CARRY OVER THE SUSPICION EVEN TO THE CONSTABLE, WHEREBY
IT MAY BECOME HIS SUSPICION AS WELL AS THE SUSPICION OF A."  ID., AT
91. 

FN8  UNITED STATES V. HEITNER, 149 F.2D 105, 106, THAT SAYS AN ARREST
MAY BE MADE "UPON HEARSAY EVIDENCE" WAS A CASE WHERE THE ARREST WAS
MADE AFTER THE DEFENDANT ON SEEING THE OFFICERS TRIED TO GET AWAY.  OUR
CASES CITED BY THAT COURT IN SUPPORT OF THE USE OF HEARSAY WERE CARROLL
V. UNITED STATES, 267 U.S. 132; DUMBRA V. UNITED STATES, 268 U.S. 435;
AND HUSTY V. UNITED STATES, 282 U.S. 694.  BUT EACH OF THEM WAS A CASE
WHERE THE INFORMATION ON WHICH THE ARREST WAS MADE, THOUGH PERHAPS NOT
COMPETENT AT THE TRIAL, WAS KNOWN TO THE ARRESTING OFFICER. 

FN9  MAGHAN V. JEROME, 67 APP. D.C. 9, 88 F.2D 1001; PRITCHETT V.
SULLIVAN, 182 F. 480.  SEE RAVENSCROFT V. CASEY, 139 F.2D 776. 

FN10  SEE STATE V. GLEASON, 32 KAN. 245, 4 P. 363; STATE V. SMITH,
262 S.W. 65 (MO. APP.), ARISING UNDER STATE CONSTITUTIONS HAVING
PROVISIONS COMPARABLE TO OUR FOURTH AMENDMENT. 

FN11  THE SUPREME COURT OF SOUTH CAROLINA HAS SAID: 

"SOME THINGS ARE TO BE MORE DEPLORED THAN THE UNLAWFUL TRANSPORTATION
OF WHISKEY; ONE IS THE LOSS OF LIBERTY.  COMMON AS THE EVENT MAY BE, IT
IS A SERIOUS THING TO ARREST A CITIZEN, AND IT IS A MORE SERIOUS THING
TO SEARCH HIS PERSON; AND HE WHO ACCOMPLISHES IT, MUST DO SO IN
CONFORMITY TO THE LAWS OF THE LAND.  THERE ARE TWO REASONS FOR THIS:
ONE TO AVOID BLOODSHED, AND THE OTHER TO PRESERVE THE LIBERTY OF THE
CITIZEN.  OBEDIENCE TO LAW IS THE BOND OF SOCIETY, AND THE OFFICERS SET
TO ENFORCE THE LAW ARE NOT EXEMPT FROM ITS MANDATES. 

"IN THE INSTANT CASE THE POSSESSION OF THE LIQUOR WAS THE BODY OF THE
OFFENSE; THAT FACT WAS PROVEN BY A FORCIBLE AND UNLAWFUL SEARCH OF THE
DEFENDANT'S PERSON TO SECURE THE VERITABLE KEY TO THE OFFENSE.  IT IS
FUNDAMENTAL THAT A CITIZEN MAY NOT BE ARRESTED AND HAVE HIS PERSON
SEARCHED BY FORCE AND WITHOUT PROCESS IN ORDER TO SECURE TESTIMONY
AGAINST HIM  ...  .  IT IS BETTER THAT THE GUILTY SHALL ESCAPE, RATHER
THAN ANOTHER OFFENSE SHALL BE COMMITTED IN THE PROOF OF GUILT."  TOWN
OF BLACKSBURG V. BEAM, 104 S.C. 146, 148, 88 S.E. 441. 
..END :
















GREENE V. UNITED STATES 358 U.S. 326 


NO. 134.  ARGUED JANUARY 13, 1959 - DECIDED JANUARY 26, 1959 - 100 U.S.
APP. D.C. 396, 246 F.2D 677, JUDGMENT VACATED AND CAUSE REMANDED FOR
FURTHER PROCEEDINGS. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT ON EACH OF 15
COUNTS OF AN INDICTMENT FOR VIOLATIONS OF THE NARCOTIC LAWS AND WAS
SENTENCED TO CONSECUTIVE SENTENCES OF 20 MONTHS TO 5 YEARS ON EACH OF
COUNTS 2, 4 AND 7 AND TO SENTENCES OF 20 MONTHS TO 5 YEARS ON EACH OF
THE OTHER 12 COUNTS, TO RUN CONCURRENTLY WITH EACH OTHER AND "WITH THE
SENTENCES IMPOSED ON COUNTS TWO, FOUR AND SEVEN."  ON PETITIONER'S
APPEAL CHALLENGING THE VALIDITY OF HIS CONVICTION AND SENTENCE ON EACH
COUNT, THE COURT OF APPEALS HELD THAT, "THE RECORD SUPPORTS AT LEAST 5
OF THE SENTENCES THAT WERE TO RUN 'CONCURRENTLY WITH' THE 3 CONSECUTIVE
SENTENCES.  IT THEREFORE SUPPORTS THE AGGREGATE SENTENCE.  WE NEED NOT
DECIDE WHETHER IT SUPPORTS THE 'CONSECUTIVE' SENTENCES THEMSELVES," AND
IT AFFIRMED.  HELD:  THE COURT OF APPEALS SHOULD HAVE PASSED UPON THE
VALIDITY OF THE CONSECUTIVE SENTENCES.  PP. 327-330. 

(A)  THE 15 SENTENCES HERE INVOLVED MAY NOT BE TREATED AS ONE "GROSS
SENTENCE" TO IMPRISONMENT FOR A PERIOD OF 5 TO 15 YEARS, BECAUSE THE
RECORDED JUDGMENT EXPLICITLY IMPOSED A SEPARATE SENTENCE OF FROM 20
MONTHS TO THE THEN PERMISSIBLE MAXIMUM OF 5 YEARS ON EACH OF THE 15
COUNTS.  PP. 328-329. 

(B)  BECAUSE OF THE WAY THE JUDGMENT IS WORDED, IMPRISONMENT FOR AN
AGGREGATE PERIOD OF 5 TO 15 YEARS CAN BE SUSTAINED IN THIS CASE ONLY IF
EACH OF THE CONSECUTIVE SENTENCES ON COUNTS 2, 4 AND 7 IS VALID.  PP.
329-330. 

GREENE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

PETITIONER WAS CONVICTED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA ON EACH OF 15 COUNTS OF AN INDICTMENT FOR
VIOLATIONS OF THE NARCOTIC LAWS, (FN1) AND AS RECITED IN THE FORMAL
JUDGMENT WAS SENTENCED TO IMPRISONMENT AS FOLLOWS: 

"TWENTY (20) MONTHS TO FIVE (5) YEARS  ...  ON COUNT TWO; TWENTY (20)
MONTHS TO FIVE (5) YEARS ...  ON COUNT FOUR, SAID SENTENCE ON COUNT
FOUR TO TAKE EFFECT (AT) THE EXPIRATION OF SENTENCE IMPOSED ON COUNT
TWO; TWENTY (20) MONTHS TO FIVE (5) YEARS  ...  ON COUNT SEVEN, SAID
SENTENCE ON COUNT SEVEN TO TAKE EFFECT AT THE EXPIRATION OF SENTENCE
IMPOSED ON COUNT FOUR; TWENTY (20) MONTHS TO FIVE (5) YEARS  ...  ON
EACH OF COUNTS ONE, THREE, FIVE, SIX, EIGHT, NINE, TEN, ELEVEN, TWELVE,
THIRTEEN, FOURTEEN AND FIFTEEN, SAID SENTENCES BY THE COUNTS TO RUN
CONCURRENTLY AND TO RUN CONCURRENTLY WITH THE SENTENCES IMPOSED ON
COUNTS TWO, FOUR AND SEVEN." 

ON HIS APPEAL, PETITIONER SOUGHT REVERSAL OF THE CONVICTION AND
SENTENCE ON EACH COUNT UPON THE GROUNDS OF PREJUDICIAL PROCEDURAL
ERRORS AT THE TRIAL, INSUFFICIENCY OF THE EVIDENCE TO SUPPORT THE
CONVICTIONS AND SENTENCES, AND INVALID MULTIPLE PUNISHMENTS FOR SINGLE
OFFENSES.  IN A PER CURIAM OPINION THE COURT OF APPEALS HELD THAT "THE
RECORD SUPPORTS AT LEAST 5 OF THE SENTENCES THAT WERE TO RUN
'CONCURRENTLY WITH' THE 3 CONSECUTIVE SENTENCES.  IT THEREFORE SUPPORTS
THE AGGREGATE SENTENCE.  WE NEED NOT DECIDE WHETHER IT SUPPORTS THE
'CONSECUTIVE' SENTENCES THEMSELVES.  HIRABAYASHI V. UNITED STATES, 320
U.S. 81, 85; WANZER V. UNITED STATES, 93 U.S. APP. D.C. 412, 208 F.2D
45."  IT THEREUPON AFFIRMED, ONE JUDGE DISSENTING, 100 U.S. APP. D.C.
396, 246 F.2D 677.  PETITIONER SOUGHT CERTIORARI ON THE GROUNDS THAT
THE SENTENCES INVALIDLY MULTIPLY PUNISHMENTS FOR SINGLE OFFENSES, AND
THAT THE COURT OF APPEALS ERRED IN FAILING TO DETERMINE THE VALIDITY OF
THE SEVERAL SENTENCES AND IN HOLDING THAT IMPRISONMENT FOR AN AGGREGATE
PERIOD OF 5 TO 15 YEARS IS AUTHORIZED BY ITS FINDING THAT "AT LEAST 5
OF THE SENTENCES THAT WERE TO RUN 'CONCURRENTLY WITH' THE 3 CONSECUTIVE
SENTENCES (ARE VALID)."  WE GRANTED THE WRIT TO DETERMINE THOSE
QUESTIONS.  357 U.S. 934. 

THE GOVERNMENT CONTENDS HERE THAT THE SEVERAL SENTENCES ARE IN
REALITY BUT ONE "GROSS SENTENCE" TO IMPRISONMENT FOR A PERIOD OF 5 TO
15 YEARS, AND THAT THE HOLDING OF THE COURT OF APPEALS THAT AT LEAST 5
OF THE "CONCURRENT" SENTENCES ARE VALID SUPPORTS THE JUDGMENT, (FN2)
BUT IT CONCEDES THAT "IF THE SENTENCE (MAY) NOT BE CONSIDERED AS A
GROSS SENTENCE, AT LEAST AS TO THE 12 COUNTS WHICH WERE TO BE
CONCURRENT WITH 2, 4, AND 7,  ...  THE CASE WOULD HAVE TO BE REMANDED
TO THE COURT OF APPEALS TO PASS ON THE VALIDITY OF COUNTS 2, 4, AND 7
(AND IF) IT FOUND ANY ONE OF THEM INVALID, THAT COURT WOULD THEN HAVE
TO REMAND TO THE DISTRICT COURT FOR RESENTENCING, SINCE, ASSUMING THAT
THE OTHER COUNTS CANNOT BE CONSIDERED IN GROSS, IT IS NOT CLEAR WHICH
OF THEM, TAKEN INDIVIDUALLY, WERE TO BE CONCURRENT WITH 2, WHICH WITH
4, AND WHICH WITH 7." 

THE QUESTION WHETHER, IN THESE CIRCUMSTANCES, THE LAW PERMITS THE
IMPOSITION OF A SINGLE "GROSS SENTENCE" UPON SEVERAL COUNTS EXCEEDING
THE MAXIMUM SENTENCE THAT MAY LAWFULLY BE IMPOSED UPON ANY ONE OF SUCH
COUNTS IS NOT PRESENTED HERE, FOR WE THINK THE GOVERNMENT'S CONTENTION
THAT THESE 15 SENTENCES WERE, OR MAY BE TREATED AS, ONE "GROSS
SENTENCE" TO IMPRISONMENT FOR A PERIOD OF 5 TO 15 YEARS IS
UNSUPPORTABLE AND IS CONTRADICTED BY THE PLAIN WORDS OF THE RECORDED
JUDGMENT.  "THE ONLY SENTENCE KNOWN TO THE LAW IS THE SENTENCE OR
JUDGMENT ENTERED UPON THE RECORDS OF THE COURT."  HILL V. UNITED
STATES, 298 U.S. 460, 464.  THE JUDGMENT ENTERED ON THE RECORDS OF THE
COURT IN THIS CASE EXPLICITLY IMPOSED A SEPARATE SENTENCE OF FROM 20
MONTHS TO THE THEN PERMISSIBLE MAXIMUM OF 5 YEARS (FN3) ON EACH OF THE
15 COUNTS.  IT IS THEREFORE PLAIN THAT THE COURT DID NOT IMPOSE ONE
"GROSS SENTENCE" TO IMPRISONMENT FOR A PERIOD OF 5 TO 15 YEARS. 

THE JUDGMENT MAKES THE SEPARATE SENTENCES ON COUNTS TWO, FOUR, AND
SEVEN TO RUN CONSECUTIVELY.  THUS, IF EACH IS VALID, THEY IN SEQUENCE
AUTHORIZE IMPRISONMENT FOR AN AGGREGATE PERIOD OF 5 TO 15 YEARS.  BUT
THE JUDGMENT MAKES THE SEPARATE SENTENCES ON THE OTHER 12 COUNTS TO RUN
CONCURRENTLY WITH EACH OTHER (HENCE FOR A TOTAL PERIOD OF 20 MONTHS TO
5 YEARS) AND "WITH THE SENTENCES IMPOSED ON COUNTS TWO, FOUR AND
SEVEN," WITHOUT SAYING WHETHER THOSE "CONCURRENT" SENTENCES ARE TO RUN
WITH THE SENTENCE ON COUNT TWO, WITH THE CONSECUTIVE SENTENCE ON COUNT
FOUR, OR WITH THE CONSECUTIVE SENTENCE ON COUNT SEVEN.  IT IS THEREFORE
EVIDENT THAT THE COURT OF APPEALS WAS IN ERROR IN CONCLUDING THAT THE 5
"CONCURRENT" SENTENCES WHICH IT THOUGHT WERE VALID ALONE SUPPORT AN
AGGREGATE PERIOD OF IMPRISONMENT OF 5 TO 15 YEARS. 

THE RULE THAT REVERSAL IS NOT REQUIRED IF ANY ONE OF SEVERAL
CONCURRENT SENTENCES IS VALID AND ALONE SUPPORTS THE SENTENCE AND
JUDGMENT, HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 85, AND CASES
CITED; PINKERTON V. UNITED STATES, 328 U.S. 640, 642, N. 1; UNITED
STATES V. SHERIDAN, 329 U.S. 379, 381; ROVIARO V. UNITED STATES, 353
U.S. 53, 59, N. 6; LAWN V. UNITED STATES, 355 U.S. 339, 359, DOES NOT
AID THE GOVERNMENT, FOR NO ONE OF THE "CONCURRENT" SENTENCES, OR EVEN
ALL OF THEM TOGETHER, COULD, EVEN IF GEARED TO A PARTICULAR (THOUGH
INVALID) CONSECUTIVE SENTENCE, SUPPORT IMPRISONMENT FOR MORE THAN 20
MONTHS TO 5 YEARS.  IF ANY ONE OF THE CONSECUTIVE SENTENCES ON COUNTS
TWO, FOUR OR SEVEN BE INVALID IT CANNOT BE SAID THAT SUCH OF THE
"CONCURRENT" SENTENCES AS ARE VALID WILL RUN WITH SUCH INVALID
CONSECUTIVE SENTENCE, AND THUS SUPPORT THAT MUCH OF THE AGGREGATE TERM
OF IMPRISONMENT, BECAUSE THE TRIAL JUDGE DID NOT MAKE THE CONCURRENT
SENTENCES TO RUN WITH ANY PARTICULAR ONE OF THE CONSECUTIVE SENTENCES. 
IT IS THEREFORE CLEAR, UNDER THE PRESENT SENTENCES, THAT IMPRISONMENT
FOR AN AGGREGATE PERIOD OF 5 TO 15 YEARS CAN BE SUSTAINED ONLY IF EACH
OF THE CONSECUTIVE SENTENCES ON COUNTS TWO, FOUR, AND SEVEN IS VALID. 
HENCE IT IS NECESSARY FOR THE COURT OF APPEALS TO PASS UPON THE
VALIDITY OF THE CONSECUTIVE SENTENCES.  THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CAUSE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE NARCOTIC DRUGS IMPORT AND EXPORT ACT, SEC. 2(C), 65 STAT.
767, 21 U.S.C. SEC. 174; THE INTERNAL REVENUE CODE OF 1954, SECS.
4704(A), 4705(A), AND 7237(A), 68A.  STAT.  550-551, 860, AS AMENDED,
69 STAT. 3, 26 U.S.C. (SUPP. III) SECS. 4704(A), 4705(A), 7237(A). 

FN2  IN SUPPORT OF ITS STATED POSITION THE GOVERNMENT RELIES ON ITS
UNDERSTANDING OF THIS COURT'S OPINIONS IN IN RE DE BARA, 179 U.S. 316,
AND IN RE HENRY, 123 U.S. 372.  IT ALSO RELIES UPON PHILLIPS V. UNITED
STATES, 212 F.2D 327, 335 (C.A. 8TH CIR.); BARNES V. UNITED STATES, 197
F.2D 271, 273 (C.A. 8TH CIR.); LEVINE V. HUDSPETH, 127 F.2D 982, 984
(C.A. 10TH CIR.); MCKEE V. JOHNSTON, 109 F.2D 273, 275 (C.A. 9TH CIR.);
JACKSON V. HUDSPETH, 111 F.2D 128, 129 (C.A. 10TH CIR.); ROSS V.
HUDSPETH, 108 F.2D 628, 629 (C.A. 10TH CIR.); HAWKINS V. UNITED STATES,
14 F.2D 596, 597-598 (C.A. 7TH CIR.); KLEIN V. UNITED STATES, 14 F.2D
35, 37 (C.A. 1ST CIR.); NEELY V. UNITED STATES, 2 F.2D 849, 852 (C.A.
4TH CIR.). 

FN3  AT THE TIME OF THESE ALLEGED OFFENSES, AND PRIOR TO THE
ENACTMENT OF THE NARCOTIC CONTROL ACT OF 1956, 70 STAT. 567, 570, SEC.
2(C) OF THE NARCOTIC DRUGS IMPORT AND EXPORT ACT (65 STAT. 767, 21
U.S.C. SEC. 174) PROVIDED FOR IMPRISONMENT FOR ITS VIOLATION OF "NOT
LESS THAN TWO OR MORE THAN FIVE YEARS," AND SEC. 7237(A) OF THE
INTERNAL REVENUE CODE OF 1954 (68A.  STAT.  860) PROVIDED FOR
IMPRISONMENT FOR THE VIOLATION OR CONSPIRACY TO VIOLATE SECS. 4704(A)
OR 4705(A) OF THAT CODE OF "NOT LESS THAN 2 OR MORE THAN 5 YEARS." 
..END :



















ROGERS V. CALUMET NATIONAL BANK OF HAMMOND, SUBSTITUTED TRUSTEE 358 U.S.
331 


NO. 468.  DECIDED JANUARY 26, 1959 - CERTIORARI GRANTED.  - 128 IND.
APP. 628, 149 N.E.2D 214, REVERSED AND CAUSE REMANDED. 


A STATE COURT IS WITHOUT POWER TO REVIEW THE DISCRETION EXERCISED BY
THE ATTORNEY GENERAL OF THE UNITED STATES UNDER FEDERAL LAW IN
CONNECTION WITH THE ISSUANCE OF A VESTING ORDER UNDER THE TRADING WITH
THE ENEMY ACT. 

ROGERS, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, V.
CALUMET NATIONAL BANK OF HAMMOND, SUBSTITUTED TRUSTEE, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE COURT OF
INDIANA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  WE ARE OF THE VIEW
THAT UNDER SILESIAN-AMERICAN CORP. V. MARKHAM, 156 F.2D 793, 796,
AFFIRMED, 332 U.S. 469, A STATE COURT IS WITHOUT POWER TO REVIEW THE
DISCRETION EXERCISED BY THE ATTORNEY GENERAL OF THE UNITED STATES UNDER
FEDERAL LAW.  THE JUDGMENT IS THEREFORE REVERSED AND THE CAUSE REMANDED
TO THE APPELLATE COURT OF INDIANA.  ON REMAND THE INDIANA COURTS ARE OF
COURSE FREE TO CONSIDER OTHER QUESTIONS PRESENTED BY THIS RECORD IN
LIGHT OF GENERAL LICENSE 94, 12 FED.  REG. 1457, AS IT MAY HAVE
AFFECTED THE DEFINITION OF "NATIONAL" IN EXECUTIVE ORDER 9095, 7 FED.
REG. 1971, AS AMENDED, AND EXECUTIVE ORDER 8389, 5 FED. REG. 1400.  SEE
GMO.  NIEHAUS & CO. V. UNITED STATES, 139 CT. CL. 605, 153 F. SUPP.
428. 
..END :




















HERRMANN V. ROGERS 358 U.S. 332 


NO. 572.  DECIDED JANUARY 26, 1959 - CERTIORARI GRANTED.  - REPORTED
BELOW:  256 F.2D 871. 


JUDGMENT VACATED AND CAUSE REMANDED FOR RECONSIDERATION IN LIGHT OF
IDAHO PROPERTY LAW. 

HERRMANN, TRUSTEE, V. ROGERS, ATTORNEY GENERAL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED, AND THE CAUSE IS REMANDED TO IT, TO
CONSIDER WHETHER, UNDER THE LAW OF PROPERTY OF IDAHO, IT WAS POSSIBLE,
AFTER THE TIME OF THE MAKING OF THE CONVEYANCE, FOR ANY PERSON OTHER
THAN THE NAMED BENEFICIARIES OF THE TRUST TO ACQUIRE A PROPERTY
INTEREST IN IT (OTHER THAN THROUGH A NAMED BENEFICIARY), AND, IN THE
LIGHT OF ITS DETERMINATION AS TO THIS, TO RECONSIDER ITS HOLDING THAT
RESPONDENT WAS ENTITLED TO ALL THE TRUST FUNDS REMAINING IN THE HANDS
OF THE TRUSTEE. 
..END :





BASS V. UNITED STATES 358 U.S. 333 


NO. 528.  DECIDED JANUARY 26, 1959 - 163 F. SUPP. 1, AFFIRMED. 


BASS V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















LANZA V. NEW JERSEY 358 U.S. 333 


NO. 532.  DECIDED JANUARY 26, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  27 N.J. 516, 143 A.2D
571. 


LANZA V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















LOCAL 24, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO V. OLIVER 358 U.S. 283 


NO. 49.  ARGUED DECEMBER 10-11, 1958 - DECIDED JANUARY 19, 1959 - 167
OHIO ST. 299, 147 N.E.2D 856, REVERSED. 


A COLLECTIVE BARGAINING AGREEMENT BETWEEN A GROUP OF LOCAL LABOR
UNIONS AND A GROUP OF INTERSTATE MOTOR CARRIERS PRESCRIBED A WAGE SCALE
FOR TRUCK DRIVERS AND, IN ORDER TO PREVENT EVASION THEREOF, PROVIDED
THAT DRIVERS WHO OWN AND DRIVE THEIR OWN VEHICLES SHOULD BE PAID, IN
ADDITION TO THE PRESCRIBED WAGE, NOT LESS THAN A PRESCRIBED MINIMUM
RENTAL FOR THE USE OF THEIR VEHICLES.  A SUIT WAS BROUGHT IN A STATE
COURT TO ENJOIN CERTAIN CARRIERS AND A LOCAL UNION FROM CARRYING OUT
THE MINIMUM RENTAL PROVISION ON THE GROUND THAT IT VIOLATED A STATE
ANTITRUST LAW.  HELD:  SINCE THAT PROVISION WAS PART OF AN AGREEMENT
RESULTING FROM THE EXERCISE OF COLLECTIVE BARGAINING RIGHTS UNDER THE
NATIONAL LABOR RELATIONS ACT, THE STATE COURT WAS PRECLUDED FROM
APPLYING THE STATE ANTITRUST LAW TO PROHIBIT THE PARTIES FROM CARRYING
OUT ITS TERMS.  PP. 284-297. 

(1)  IN THE LIGHT OF ITS HISTORY AND ITS PURPOSE TO PROTECT THE
NEGOTIATED WAGE SCALE AGAINST EVASION THROUGH PAYMENT TO OWNER-DRIVERS
OF RENTALS INSUFFICIENT TO COVER THEIR OPERATING COSTS, THE MINIMUM
RENTAL PROVISION WAS WITHIN THE SCOPE OF COLLECTIVE BARGAINING REQUIRED
OF THE PARTIES UNDER SECS. 7 AND 8 OF THE NATIONAL LABOR RELATIONS
ACT.  PP. 292-295. 

(2)  THE STATE ANTITRUST LAW MAY NOT BE APPLIED TO PREVENT THE
CONTRACTING PARTIES FROM CARRYING OUT THEIR AGREEMENT UPON A SUBJECT
MATTER AS TO WHICH FEDERAL LAW DIRECTS THEM TO BARGAIN.  PP. 295-297. 

LOCAL 24, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, ET AL. V. OLIVER ET AL. 

CERTIORARI TO THE SUPREME COURT OF OHIO AND THE COURT OF APPEALS OF
OHIO, NINTH JUDICIAL DISTRICT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

AS THE RESULT OF MULTIEMPLOYER, MULTISTATE COLLECTIVE BARGAINING WITH
THE CENTRAL STATES DRIVERS COUNCIL, COMPRISING LOCAL UNIONS OF TRUCK
DRIVERS AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS, A COLLECTIVE BARGAINING
AGREEMENT, THE "CENTRAL STATES AREA OVER-THE-ROAD MOTOR FREIGHT
AGREEMENT," EFFECTIVE FEBREUARY 1, 1955, AND EXPIRING JANUARY 31, 1961,
WAS ENTERED INTO BY THE LOCALS AND MOTOR CARRIERS IN INTERSTATE
COMMERCE WHO OPERATE UNDER THE AUTHORITY OF THE INTERSTATE COMMERCE
COMMISSION (FN1) IN 12 MIDWESTERN STATES, INCLUDING OHIO.  (FN2)
ARTICLE XXXII OF THIS COLLECTIVE BARGAINING AGREEMENT (FN3) PRESCRIBES
TERMS AND CONDITIONS WHICH REGULATE THE MINIMUM RENTAL AND CERTAIN
OTHER TERMS OF LEASE WHEN A MOTOR VEHICLE IS LEASED TO A CARRIER BY AN
OWNER WHO DRIVES HIS VEHICLE IN THE CARRIER'S SERVICE.  (FN4) THE OHIO
COURTS ENJOINED THE PETITIONER, OHIO'S TEAMSTERS LOCAL 24 AND ITS
PRESIDENT, AND THE RESPONDENT CARRIERS, A.C.E. TRANSPORTATION COMPANY,
INC., AND INTERSTATE TRUCK SERVICE, INC., OHIO EMPLOYERS, FROM GIVING
EFFECT TO THE PROVISIONS OF ARTICLE XXXII.  THE OHIO COURTS HELD THAT
THE ARTICLE VIOLATES THE OHIO ANTITRUST LAW, KNOWN AS THE VALENTINE
ACT.  (FN5)  THE QUESTION IS WHETHER THE FACT THAT THE ARTICLE WAS
CONTAINED IN AN AGREEMENT WHICH WAS THE FRUIT OF THE EXERCISE OF
COLLECTIVE BARGAINING RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT
(FN6) PRECLUDED THE OHIO COURTS FROM APPLYING THE OHIO ANTITRUST LAW TO
PROHIBIT THE PARTIES FROM CARRYING OUT THE TERMS OF THE ARTICLE THEY
HAD AGREED UPON IN BARGAINING.  NO CLAIM IS MADE THAT ARTICLE XXXII
VIOLATES ANY PROVISION OF FEDERAL LAW.   THE ARTICLE IS IN EXPRESS
TERMS MADE APPLICABLE ONLY TO A LESSOR-DRIVER WHEN HE HIMSELF DRIVES
HIS VEHICLE IN THE BUSINESS OF THE LESSEE-CARRIER.  SEC. 1.  THE
ARTICLE, AT LEAST IN WORDS, CONSTITUTES THE LESSOR-DRIVER AN EMPLOYEE
OF THE CARRIER AT SUCH TIMES:  "THE EMPLOYER (THE CARRIER) EXPRESSLY
RESERVES THE RIGHT TO CONTROL THE MANNER, MEANS AND DETAILS OF, AND BY
WHICH, THE OWNER-OPERATOR PERFORMS HIS SERVICES, AS WELL AS THE ENDS TO
BE ACCOMPLISHED."  SEC. 4.  HIS WAGES, HOURS AND WORKING CONDITIONS ARE
THEN TO BE THOSE APPLIED TO THE CARRIER'S DRIVERS OF CARRIER-OWNED
VEHICLES, AND HE HAS "SENIORITY AS A DRIVER ONLY."  SEC. 2.  HE MUST
OPERATE HIS VEHICLE AT SUCH TIMES "EXCLUSIVELY IN  ...  THE CARRIER'S
SERVICE AND FOR NO OTHER INTERESTS."  SEC. 1.  THE CARRIER "AGREES TO
PAY ...  SOCIAL SECURITY TAX, COMPENSATION INSURANCE, PUBLIC LIABILITY
AND PROPERTY DAMAGE INSURANCE, BRIDGE TOLLS" AND VARIOUS OTHER FEES
IMPOSED ON MOTOR FREIGHT TRANSPORTATION, EXCEPT "THAT THE OWNER-DRIVER
SHALL PAY LICENSE FEES IN THE STATE IN WHICH TITLE IS REGISTERED." 
SEC.  10.  THE LESSOR-DRIVER MUST BE COMPENSATED BY "SEPARATE CHECKS
...  FOR DRIVER'S WAGES AND EQUIPMENT RENTAL."  SEC. 6.  THE WAGE
PAYMENT MUST BE IN THE AMOUNT OF "THE FULL WAGE RATE AND SUPPLEMENTARY
ALLOWANCES" PAYABLE TO CARRIER DRIVERS SIMILARLY CIRCUMSTANCED WHO
DRIVE CARRIER-OWNED VEHICLES.  SEC. 12(A).  THE EQUIPMENT RENTAL
PAYMENT MUST BE IN AN AMOUNT NOT LESS THAN "THE MINIMUM RATES"
SPECIFIED BY THE ARTICLE WHICH "RESULT FROM THE JOINT DETERMINATION OF
THE PARTIES THAT SUCH RATES REPRESENT ONLY THE ACTUAL COST OF OPERATING
SUCH LEASED EQUIPMENT.  THE PARTIES HAVE NOT ATTEMPTED TO NEGOTIATE A
PROFIT FOR THE OWNER-DRIVER."  SEC. 12(B).  ALL LEASES BY UNION MEMBERS
WHO DRIVE THEIR VEHICLES FOR CARRIERS IN EFFECT ON THE OPERATIVE DATE
OF THE COLLECTIVE BARGAINING AGREEMENT ARE TO "BE DISSOLVED OR MODIFIED
WITHIN THIRTY (30) DAYS" TO CONFORM TO THE TERMS AND CONDITIONS OF THE
ARTICLE.  SEC. 15.  THE PARTIES DECLARE THAT "THE INTENT OF THIS CLAUSE
(THE ARTICLE)  ...  IS TO ASSURE THE PAYMENT OF THE UNION SCALE OF
WAGES  ...  AND TO PROHIBIT A CARRIER FROM THE MAKING AND CARRYING OUT
OF ANY PLAN, SCHEME OR DEVICE TO CIRCUMVENT OR DEFEAT THE PAYMENT OF
WAGE SCALES PROVIDED IN THIS AGREEMENT  ...  AND TO PREVENT THE
CONTINUATION OF OR FORMATION OF COMBINATIONS OR CORPORATIONS OR SO
CALLED LEASE OF FLEET ARRANGEMENTS WHEREBY THE DRIVER OF HIS OWN
VEHICLE IS REQUIRED TO AND DOES PERIODICALLY PAY LOSSES SUSTAINED BY
THE CORPORATION OR FLEET ARRANGEMENT, OR IS REQUIRED TO ACCEPT LESS
THAN THE ACTUAL COST OF THE RUNNING OF HIS EQUIPMENT, THUS, IN FACT,
REDUCING HIS SCALE OF PAY."  SEC. 16. 

THE RESPONDENT, REVEL OLIVER, A MEMBER OF THE UNION, IS THE OWNER OF
MOTOR EQUIPMENT (FN7) WHICH, AT THE TIME THE COLLECTIVE BARGAINING
AGREEMENT WAS NEGOTIATED, WAS SUBJECT TO WRITTEN LEASE AGREEMENTS WITH
THE CARRIER RESPONDENTS, A.C.E. TRANSPORTATION COMPANY, INC., AND
INTERSTATE TRUCK SERVICE, INC. THE TERMS AND CONDITIONS OF THE LEASES,
PARTICULARLY IN REGARD TO RENTAL COMPENSATION, DIFFER SUBSTANTIALLY
FROM THOSE PROVIDED IN ARTICLE XXXII.  (FN8) 

OLIVER BROUGHT THIS ACTION ON JANUARY 20, 1955, IN THE COURT OF
COMMON PLEAS, SUMMIT COUNTY, OHIO, FOR AN INJUNCTION RESTRAINING THE
PETITIONERS AND THE RESPONDENT CARRIERS FROM CARRYING OUT THE TERMS OF
ARTICLE XXXII.  HE OBTAINED A TEMPORARY RESTRAINING ORDER UPON SWORN
ALLEGATIONS.  AT THE TRIAL THE RESPONDENT CARRIERS JOINED WITH OLIVER
IN MAKING THE ATTACK ON THE ARTICLE.  THE PETITIONERS DEFENDED ON THE
GROUND THAT THE STATE COULD NOT LAWFULLY EXERCISE POWER TO APPLY ITS
ANTITRUST LAW TO CAUSE A FORFEITURE OF THE PRODUCT OF THE EXERCISE OF
FEDERALLY SANCTIONED COLLECTIVE BARGAINING RIGHTS.  THE UNION JUSTIFIED
THE ARTICLE AS NECESSARY TO PREVENT UNDERMINING OF THE NEGOTIATED
DRIVERS' WAGE SCALE SAID TO RESULT FROM A PRACTICE OF CARRIERS OF
LEASING A VEHICLE FROM AN OWNER-DRIVER AT A RENTAL WHICH RETURNED TO
THE OWNER-DRIVER LESS THAN HIS ACTUAL COSTS OF OPERATION, SO THAT THE
DRIVER'S WAGE RECEIVED BY HIM, ALTHOUGH NOMINALLY THE NEGOTIATED WAGE,
WAS ACTUALLY A WAGE REDUCED BY THE EXCESS OF HIS OPERATING EXPENSES
OVER THE RENTAL HE RECEIVED.  THE COURT OF COMMON PLEAS HELD IN AN
UNREPORTED OPINION THAT THE NATIONAL LABOR RELATIONS ACT COULD NOT "BE
REASONABLY CONSTRUED TO PERMIT THIS REMOTE AND INDIRECT APPROACH TO THE
SUBJECT OF WAGES," AND THAT ARTICLE XXXII WAS IN VIOLATION OF THE
STATE'S ANTITRUST LAW BECAUSE "THERE ARE RESTRICTIONS AND RESTRAINTS
IMPOSED UPON ARTICLES (THE LEASED VEHICLES) THAT ARE WIDELY USED IN
TRADE AND COMMERCE  ...  AND PRECLUDE AN OWNER OF PROPERTY FROM
REASONABLE FREEDOM OF ACTION IN DEALING WITH IT."  ON THE PETITIONERS'
APPEAL TO OHIO'S NINTH JUDICIAL DISTRICT COURT OF APPEALS THAT COURT
HEARD THE CASE DE NOVO AND AFFIRMED THE JUDGMENT OF THE COURT OF COMMON
PLEAS, ADOPTING ITS OPINION.  THE COURT OF APPEALS ENTERED A PERMANENT
INJUNCTION PERPETUALLY RESTRAINING THE PETITIONERS AND THE RESPONDENT
CARRIERS (1) "FROM ENTERING INTO ANY AGREEMENTS  ...  OR CARRYING OUT
THE  ...  REQUIREMENTS  ...  OF ANY SUCH AGREEMENT, WHICH WILL REQUIRE
THE ALTERATION" OF REVEL OLIVER'S "EXISTING LEASE OR LEASING
AGREEMENT"; (2) "FROM ENTERING INTO ANY  ...  AGREEMENT OR STIPULATION
IN THE FUTURE, OR THE NEGOTIATION THEREFOR, THE  ...  TENDENCY OF WHICH
IS TO  ... DETERMINE IN ANY MANNER THE RATE TO BE CHARGED FOR THE USE
OF" REVEL OLIVER'S EQUIPMENT; (3) "FROM GIVING FORCE AND EFFECT TO
...  TENDENCY OF WHICH SHALL ATTEMPT TO FIX THE RATES" FOR THE USE OF
REVEL OLIVER'S EQUIPMENT.  (FN9)  PETITIONERS' APPEAL TO THE OHIO
SUPREME COURT WAS DISMISSED FOR WANT OF A DEBATABLE CONSTITUTIONAL
QUESTION.  167 OHIO ST. 299, 147 N.E.2D 856.  WE GRANTED CERTIORARI TO
CONSIDER THE IMPORTANT QUESTION RAISED OF THE INTERACTION OF STATE AND
FEDERAL POWER ARISING FROM THE PETITIONERS' CLAIM THAT THE OHIO
REGULATION ABRIDGES RIGHTS PROTECTED BY FEDERAL STATUTE.  356 U.S.
966. 

ARTICLE XXXII DID NOT ORIGINATE WITH THE 1955 AGREEMENT.  THE
CARRIERS AND THE UNION HAVE DISPUTED SINCE 1938 THE TERMS OF A
CARRIER'S HIRE OF A LESSOR'S DRIVING SERVICES WITH HIS LEASED VEHICLE. 
THE USUAL LEASE IS BY THE OWNER OF A SINGLE VEHICLE WHO HIRES OUT HIS
SERVICES AS DRIVER WITH HIS VEHICLE.  A CARRIER'S REPRESENTATIVE WHO
HAS PARTICIPATED IN ALL CONTRACT NEGOTIATIONS SINCE THOSE LEADING TO
THE 1938 AGREEMENT TESTIFIED TO THE HISTORY.  ACCORDING TO HIM, THE NUB
OF THE UNION'S POSITION OVER THE TWO DECADES HAS BEEN THAT THE CARRIERS
ABUSE THE LEASING PRACTICE, PARTICULARLY BY PAYING INADEQUATE RENTALS
FOR THE USE OF LEASED VEHICLES, WITH THE RESULT "THAT PART OF THE MEN'S
WAGES FOR DRIVING WAS BEING USED FOR THE UPKEEP OF THEIR VEHICLES  ...
.  THEY (THE UNION) CLAIMED THAT THE LEASED PEOPLE WERE BREAKING DOWN
THE RATE STRUCTURE  ...  ."  THE UNION'S DEMANDS FOR CONTRACT
PROVISIONS TO SAFEGUARD AGAINST THE ALLEGED ABUSE WERE DESIGNED ALSO TO
"SECURE A LIVING WAGE FOR THE LESSOR PLUS AN ADEQUATE RENTAL FOR HIS
EQUIPMENT."  A MINIMUM RENTAL CLAUSE FIRST APPEARED IN THE 1938
AGREEMENT WHICH ALSO CONTAINED PROVISIONS COMPARABLE TO SECS. 8, 10 AND
14 OF PRESENT ARTICLE XXXII.  IN 1939, AFTER THE UNION CLAIMED THAT
"THERE WAS A LOT OF PEOPLE THAT WAS TRANSFERRING THEIR TITLE INTO OTHER
PEOPLE'S NAME TO AVOID THE CONDITIONS OF THE CONTRACT," SEC. 3 WAS
ADDED TO PROVIDE THAT "CERTIFICATE AND TITLE TO THE EQUIPMENT MUST BE
IN THE NAME OF THE ACTUAL OWNER."  WHEN THE DISPUTE BROUGHT THE PARTIES
TO THE VERGE OF A STRIKE IN 1941, THE NOTE TO SEC. 1 AND SECS. 13, 15,
16, 17 AND 18 CAME INTO THE AGREEMENT.  BUT BY 1946 THE CONTROVERSY
REACHED A PITCH WHERE THE UNION DEMANDED AGREEMENT FROM THE CARRIERS TO
ABOLISH THE LEASING PRACTICE:  "THE UNIONS WERE GOING TO REFUSE THE
ADDITION OF ANY INDIVIDUAL OWNERS, AND THE UNIONS ALSO DESIRED TO MAKE
CERTAIN RESTRICTIONS ON THE USE OF OWNER-OPERATORS, AGAIN CLAIMING THAT
THE  ...  COMPANY OPERATORS WERE TAKING ADVANTAGE OF CERTAIN PROVISIONS
OF THE CONTRACT."  THIS DEMAND WAS COMPROMISED BY THE ADDITION OF SEC.
19 RESTRICTING LEASING TO CARRIERS "WHO WILL AGREE TO SUBMIT ALL
GRIEVANCES PERTAINING TO OWNER-OPERATORS TO JOINT EMPLOYER-UNION
GRIEVANCE COMMITTEES IN EACH RESPECTIVE STATE"; THE SECTION
"REPRESENTED THE COMPROMISE BETWEEN THE UNION POSITION THAT IT SHOULD
ABOLISH ALL OWNER-OPERATORS AND THE COMPANIES' CONTENTION THERE SHOULD
BE NO LIMITATION." 

FIRST.  THE OHIO COURTS REJECTED THE PETITIONERS' CONTENTION THAT THE
EVIDENCE CONCLUSIVELY ESTABLISHED THAT ARTICLE XXXII DEALT WITH SUBJECT
MATTER WITHIN THE SCOPE OF "COLLECTIVE BARGAINING" IN WHICH FEDERAL LAW
GAVE PETITIONERS THE RIGHT TO ENGAGE.  THE STATE COURTS RESTED THEIR
JUDGMENTS PRINCIPALLY ON THE MINIMUM RENTAL REGULATIONS OF SEC. 12 OF
THE ARTICLE.  THE PRINCIPAL DISCUSSION OCCURS IN THE OPINION OF THE
COURT OF COMMON PLEAS.  THESE REGULATIONS WERE HELD TO CONSTITUTE THE
ARTICLE A PRICE-FIXING ARRANGEMENT VIOLATING THE OHIO ANTITRUST LAW IN
THAT THEY EVIDENCED "CONCERTED ACTION OF THE UNION COMBINING WITH A NON
LABOR THIRD PARTY IN A FORMAL CONTRACT  ...  THE EFFECT OF WHICH IS TO
OPPRESS AND DESTROY COMPETITION  ...  AND PRECLUDE AN OWNER OF PROPERTY
FROM REASONABLE FREEDOM OF ACTION IN DEALING WITH IT." 

IT SEEMS TO US THAT IN CONSIDERING WHETHER THE ARTICLE DEALS WITH A
SUBJECT MATTER WITHIN THE SCOPE OF COLLECTIVE BARGAINING AS DEFINED BY
FEDERAL LAW THE OHIO COURTS DID NOT GIVE PROPER SIGNIFICANCE TO THE
ARTICLE'S NARROWLY RESTRICTED APPLICATION TO THE TIMES WHEN THE OWNER
DRIVES HIS LEASED VEHICLE FOR THE CARRIER, AND TO THE ADVERSE EFFECTS
UPON THE NEGOTIATED WAGE SCALE WHICH MIGHT RESULT WHEN THE RENTAL FOR
THE USE OF THE LEASED VEHICLE WAS UNREGULATED AT THESE TIMES.  SINCE NO
CLAIM WAS PRESENTED TO THE OHIO COURTS THAT THE PETITIONERS SOUGHT TO
APPLY THESE REGULATIONS TO REVEL OLIVER'S ARRANGEMENTS WITH THE
RESPONDENT CARRIERS EXCEPT ON THE VERY INFREQUENT AND IRREGULAR
OCCASIONS WHEN OLIVER DROVE ONE OF HIS VEHICLES FOR A CARRIER, WE TAKE
IT THAT THE OHIO COURTS' OPINIONS AND JUDGMENTS RELATE ONLY TO THE
VALIDITY OF THE ARTICLE AS APPLIED AT SUCH TIMES.  THIS WOULD
NECESSARILY BE THE CASE AS THE TEXT OF THE ARTICLE, AND THAT TEXT AS
ILLUMINATED BY ITS HISTORY, CONCLUSIVELY ESTABLISH THAT THE REGULATIONS
IN NO WISE APPLY TO THE TERMS OF LEASE OF A VEHICLE WHEN DRIVEN BY A
DRIVER NOT THE OWNER OF THE VEHICLE; THE WAGES, HOURS AND WORKING
CONDITIONS TO BE OBSERVED BY CONTRACTING EMPLOYERS OF NON-OWNER DRIVERS
ARE GOVERNED BY THE GENERAL PROVISIONS IN THAT REGARD FOUND IN OTHER
ARTICLES OF THE COLLECTIVE BARGAINING AGREEMENT. 

IN THE LIGHT OF THE ARTICLE'S HISTORY AND PURPOSE, WE CANNOT AGREE
WITH THE COURT OF COMMON PLEAS THAT ITS REGULATIONS CONSTITUTE A
"REMOTE AND INDIRECT APPROACH TO THE SUBJECT OF WAGES," OUTSIDE THE
RANGE OF MATTERS ON WHICH THE FEDERAL LAW REQUIRES THE PARTIES TO
BARGAIN.  THE TEXT OF THE ARTICLE AND ITS UNCHALLENGED HISTORY SHOW
THAT ITS OBJECTIVE IS TO PROTECT THE NEGOTIATED WAGE SCALE AGAINST THE
POSSIBLE UNDERMINING THROUGH DIMINUTION OF THE OWNER'S WAGES FOR
DRIVING WHICH MIGHT RESULT FROM A RENTAL WHICH DID NOT COVER HIS
OPERATING COSTS.  THIS IS THUS BUT AN INSTANCE, AS THIS COURT SAID OF A
SOMEWHAT SIMILAR UNION DEMAND IN ANOTHER CASE, IN WHICH A UNION SEEKS
TO PROTECT LAWFUL EMPLOYEE INTERESTS AGAINST WHAT IS BELIEVED, RIGHTLY
OR WRONGLY, TO BE "A SCHEME OR DEVICE UTILIZED FOR THE PURPOSE OF
ESCAPING THE PAYMENT OF UNION WAGES AND THE ASSUMPTION OF WORKING
CONDITIONS COMMENSURATE WITH THOSE IMPOSED UNDER UNION STANDARDS." 
MILK WAGON DRIVERS' UNION V. LAKE VALLEY FARM PRODUCTS, INC., 311 U.S.
91, 98-99.  LOOKED AT IN THIS LIGHT, AS ON THE EVIDENCE IT MUST BE, TO
DETERMINE ITS RELEVANCE TO THE COLLECTIVE BARGAINING RIGHTS UNDER THE
FEDERAL ACT, THE POINT OF THE ARTICLE IS OBVIOUSLY NOT PRICE FIXING BUT
WAGES.  THE REGULATIONS EMBODY NOT THE "REMOTE AND INDIRECT APPROACH TO
THE SUBJECT OF WAGES" PERCEIVED BY THE COURT OF COMMON PLEAS BUT A
DIRECT FRONTAL ATTACK UPON A PROBLEM THOUGHT TO THREATEN THE
MAINTENANCE OF THE BASIC WAGE STRUCTURE ESTABLISHED BY THE COLLECTIVE
BARGAINING CONTRACT.  THE INADEQUACY OF A RENTAL WHICH MEANS THAT THE
OWNER MAKES UP HIS EXCESS COSTS FROM HIS DRIVER'S WAGES NOT ONLY
CLEARLY BEARS A CLOSE RELATION TO LABOR'S EFFORTS TO IMPROVE WORKING
CONDITIONS BUT IS IN FACT OF VITAL CONCERN TO THE CARRIER'S EMPLOYED
DRIVERS; AN INADEQUATE RENTAL MIGHT MEAN THE PROGRESSIVE CURTAILMENT OF
JOBS THROUGH WITHDRAWAL OF MORE AND MORE CARRIER-OWNED VEHICLES FROM
SERVICE.  CF. BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769, 771.  IT IS
NOT NECESSARY TO ATTEMPT TO SET PRECISE OUTSIDE LIMITS TO THE SUBJECT
MATTER PROPERLY INCLUDED WITHIN THE SCOPE OF MANDATORY COLLECTIVE
BARGAINING, CF. LABOR BOARD V. BORG-WARNER CORP., 356 U.S. 342, TO
HOLD, AS WE DO, THAT THE OBLIGATION UNDER SECS. 8(D) ON THE CARRIERS
AND THEIR EMPLOYEES TO BARGAIN COLLECTIVELY "WITH RESPECT TO WAGES,
HOURS, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT" AND TO EMBODY
THEIR UNDERSTANDING IN "A WRITTEN CONTRACT INCORPORATING ANY AGREEMENT
REACHED," FOUND AN EXPRESSION IN THE SUBJECT MATTER OF ARTICLE XXXII. 
SEE TIMKEN ROLLER BEARING CO., 70 N.L.R.B. 500, 518, REVERSED ON OTHER
GROUNDS, 161 F.2D 949.  AND CERTAINLY BARGAINING ON THIS SUBJECT
THROUGH THEIR REPRESENTATIVES WAS A RIGHT OF THE EMPLOYEES PROTECTED BY
SEC. 7 OF THE ACT. 

SECOND.  WE MUST DECIDE WHETHER OHIO'S ANTITRUST LAW MAY BE APPLIED
TO PREVENT THE CONTRACTING PARTIES FROM CARRYING OUT THEIR AGREEMENT
UPON A SUBJECT MATTER AS TO WHICH FEDERAL LAW DIRECTS THEM TO BARGAIN. 
LITTLE EXTENDED DISCUSSION IS NECESSARY TO SHOW THAT OHIO LAW CANNOT BE
SO APPLIED.  WE NEED NOT CONCERN OUTSELVES TODAY WITH A CONTRACTUAL
PROVISION DEALING WITH A SUBJECT MATTER THAT THE PARTIES WERE UNDER NO
OBLIGATION TO DISCUSS; THE CARRIERS AS EMPLOYERS WERE UNDER A DUTY TO
BARGAIN COLLECTIVELY WITH THE UNION AS TO THE SUBJECT MATTER OF THE
ARTICLE, AS WE HAVE SHOWN.  THE GOAL OF FEDERAL LABOR POLICY, AS
EXPRESSED IN THE WAGNER AND TAFT-HARTLEY ACTS, IS THE PROMOTION OF
COLLECTIVE BARGAINING; TO ENCOURAGE THE EMPLOYER AND THE
RESPRESENTATIVE OF THE EMPLOYEES TO ESTABLISH, THROUGH COLLECTIVE
NEGOTIATION, THEIR OWN CHARTER FOR THE ORDERING OF INDUSTRIAL
RELATIONS, AND THEREBY TO MINIMIZE INDUSTRIAL STRIFE.  SEE LABOR BOARD
V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 45; LABOR BOARD V.
AMERICAN NATIONAL INS. CO., 343 U.S. 395, 401-402.  WITHIN THE AREA IN
WHICH COLLECTIVE BARGAINING WAS REQUIRED, CONGRESS WAS NOT CONCERNED
WITH THE SUBSTANTIVE TERMS UPON WHICH THE PARTIES AGREED.  CF. TERMINAL
RAILROAD ASSN. V. BROTHERHOOD OF RAILROAD TRAINMEN, 318 U.S. 1, 6.  THE
PURPOSES OF THE ACTS ARE SERVED BY BRINGING THE PARTIES TOGETHER AND
ESTABLISHING CONDITIONS UNDER WHICH THEY ARE TO WORK OUT THEIR
AGREEMENT THEMSELVES.  TO ALLOW THE APPLICATION OF THE OHIO ANTITRUST
LAW HERE WOULD WHOLLY DEFEAT THE FULL REALIZATION OF THE CONGRESSIONAL
PURPOSE.  THE APPLICATION WOULD FRUSTRATE THE PARTIES' SOLUTION OF A
PROBLEM WHICH CONGRESS HAS REQUIRED THEM TO NEGOTIATE IN GOOD FAITH
TOWARD SOLVING, AND IN THE SOLUTION OF WHICH IT IMPOSED NO LIMITATIONS
RELEVANT HERE.  FEDERAL LAW HERE CREATED THE DUTY UPON THE PARTIES TO
BARGAIN COLLECTIVELY; CONGRESS HAS PROVIDED FOR A SYSTEM OF FEDERAL LAW
APPLICABLE TO THE AGREEMENT THE PARTIES MADE IN RESPONSE TO THAT DUTY,
TEXTILE WORKERS UNION V. LINCOLN MILLS, 353 U.S. 448; AND FEDERAL LAW
SETS SOME OUTSIDE LIMITS (NOT CONTENDED TO BE EXCEEDED HERE) ON WHAT
THEIR AGREEMENT MAY PROVIDE, SEE ALLEN BRADLEY CO. V. LOCAL UNION, 325
U.S. 797; CF. UNITED STATES V. EMPLOYING PLASTERERS ASSN., 347 U.S.
186, 190.  WE BELIEVE THAT THERE IS NO ROOM IN THIS SCHEME FOR THE
APPLICATION HERE OF THIS STATE POLICY LIMITING THE SOLUTIONS THAT THE
PARTIES' AGREEMENT CAN PROVIDE TO THE PROBLEMS OF WAGES AND WORKING
CONDITIONS.  CF. CALIFORNIA V. TAYLOR, 353 U.S. 553, 566-567.  SINCE
THE FEDERAL LAW OPERATES HERE, IN AN AREA WHERE ITS AUTHORITY IS
PARAMOUNT, TO LEAVE THE PARTIES FREE, THE INCONSISTENT APPLICATION OF
STATE LAW IS NECESSARILY OUTSIDE THE POWER OF THE STATE.  HILL V.
FLORIDA, 325 U.S. 538, 542-544.  CF. INTERNATIONAL UNION V. O'BRIEN,
339 U.S. 454, 457; AMALGAMATED ASSN. V. WISCONSIN EMPLOYMENT RELATIONS
BOARD, 340 U.S. 383; PLANKINTON PACKING CO. V. WISCONSIN EMPLOYMENT
RELATIONS BOARD, 338 U.S. 953.  THE SOLUTION WORKED OUT BY THE PARTIES
WAS NOT ONE OF A SORT WHICH CONGRESS HAS INDICATED MAY BE LEFT TO
PROHIBITION BY THE SEVERAL STATES.  CF. ALGOMA PLYWOOD & VENEER CO. V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, 336 U.S. 301, 307-312.  (FN10)
OF COURSE, THE PARAMOUNT FORCE OF THE FEDERAL LAW REMAINS EVEN THOUGH
IT IS EXPRESSED IN THE DETAILS OF A CONTRACT FEDERAL LAW EMPOWERS THE
PARTIES TO MAKE, RATHER THAN IN TERMS IN AN ENACTMENT OF CONGRESS.  SEE
RAILWAY EMPLOYES' DEPT. V. HANSON, 351 U.S. 225, 232.  CLEARLY IT IS
IMMATERIAL THAT THE CONFLICT IS BETWEEN FEDERAL LABOR LAW AND THE
APPLICATION OF WHAT THE STATE CHARACTERIZES AS AN ANTITRUST LAW.  "
...  CONGRESS HAS SUFFICIENTLY EXPRESSED ITS PURPOSE TO  ...  EXCLUDE
STATE PROHIBITION, EVEN THOUGH THAT WITH WHICH THE FEDERAL LAW IS
CONCERNED AS A MATTER OF LABOR RELATIONS BE RELATED BY THE STATE TO THE
MORE INCLUSIVE AREA OF RESTRAINT OF TRADE."  WEBER V. ANHEUSER-BUSCH,
INC., 348 U.S. 468, 481.  WE HAVE NOT HERE A CASE OF A COLLECTIVE
BARGAINING AGREEMENT IN CONFLICT WITH A LOCAL HEALTH OR SAFETY
REGULATION; THE CONFLICT HERE IS BETWEEN THE FEDERALLY SANCTIONED
AGREEMENT AND STATE POLICY WHICH SEEKS SPECIFICALLY TO ADJUST
RELATIONSHIPS IN THE WORLD OF COMMERCE.  IF THERE IS TO BE THIS SORT OF
LIMITATION ON THE ARRANGEMENTS THAT UNIONS AND EMPLOYERS MAY MAKE WITH
REGARD TO THESE SUBJECTS, PURSUANT TO THE COLLECTIVE BARGAINING
PROVISIONS OF THE WAGNER AND TAFT-HARTLEY ACTS, IT IS FOR CONGRESS, NOT
THE STATES, TO PROVIDE IT.  REVERSED. 

FN1  CERTIFICATES OF CONVENIENCE AND NECESSITY ARE ISSUED TO COMMON
CARRIERS PURSUANT TO SECS. 206-208 OF THE INTERSTATE COMMERCE ACT, 49
STAT. 551, 552, AS AMENDED, 49 U.S.C.  SECS. 306-308; PERMITS ARE
ISSUED TO CONTRACT CARRIERS PURSUANT TO SEC. 209, 49 STAT.  552, AS
AMENDED, 49 U.S.C. SEC. 309. 

FN2  THE AGREEMENT COVERS BETWEEN 3,000 AND 3,500 EMPLOYERS AND
BETWEEN 45,000 AND 50,000 TRUCK DRIVERS.  THOSE COVERED IN OHIO CONSIST
OF APPROXIMATELY 500 EMPLOYERS AND 6,000 DRIVERS.  UPWARDS OF 90% OF
THE OHIO DRIVERS DRIVE EQUIPMENT OWNED BY CARRIERS WHO OPERATE UNDER
I.C.C. CERTIFICATES OR PERMITS.  THE REST OF THE COVERED DRIVERS OWN
THEIR OWN EQUIPMENT, USUALLY ONE VEHICLE, BUT SINCE THEY ARE NOT
HOLDERS OF I.C.C. CERTIFICATS OR PERMITS, THEY LEASE THEIR EQUIPMENT
TO, AND DRIVE IT FOR, CERTIFICATED OR PERMITTED CARRIERS. 

FN3  FOR THE TEXT OF ARTICLE XXXII, SEE APPENDIX, POST, P. 298. 

FN4  FOR DETAILS OF I.C.C. REGULATIONS GOVERNING THE RELATIONSHIP
BETWEEN CERTIFICATED CARRIERS AND THE LESSORS OF MOTOR VEHICLE
EQUIPMENT, SEE THE DISCUSSION IN AMERICAN TRUCKING ASSNS., INC., V.
UNITED STATES, 344 U.S. 298. 

FN5  THE SPECIFIC PROVISION INVOLVED, OHIO REV. CODE ANN. SEC.
1331.01, PROVIDES AS FOLLOWS: 

"AS USED IN SECTIONS 1331.01 TO 1331.14, INCLUSIVE, OF THE REVISED
CODE: 

"(A)  'PERSON' INCLUDES CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS
EXISTING UNDER OR AUTHORIZED BY ANY STATE OR TERRITORY OF THE UNITED
STATES, OR A FOREIGN COUNTRY. 

"(B)  'TRUST' IS A COMBINATION OF CAPITAL, SKILL, OR ACTS BY TWO OR
MORE PERSONS FOR ANY OF THE FOLLOWING PURPOSES: 

"(1)  TO CREATE OR CARRY OUT RESTRICTIONS IN TRADE OR COMMERCE. 

"(2)  TO LIMIT OR REDUCE THE PRODUCTION, OR INCREASE OR REDUCE THE
PRICE OF MERCHANDISE OR A COMMODITY. 

"(3)  TO PREVENT COMPETITION IN MANUFACTURING, MAKING,
TRANSPORTATION, SALE, OR PURCHASE OF MERCHANDISE, PRODUCE, OR A
COMMODITY. 

"(4)  TO FIX AT A STANDARD OR FIGURE, WHEREBY ITS PRICE TO THE PUBLIC
OR CONSUMER IS IN ANY MANNER CONTROLLED OR ESTABLISHED, AN ARTICLE OR
COMMODITY OF MERCHANDISE, PRODUCE, OR COMMERCE INTENDED FOR SALE,
BARTER, USE, OR CONSUMPTION IN THIS STATE. 

"(5)  TO MAKE, ENTER INTO, EXECUTE, OR CARRY OUT CONTRACTS,
OBLIGATIONS, OR AGREEMENTS OF ANY KIND BY WHICH THEY BIND OR HAVE BOUND
THEMSELVES NOT TO SELL, DISPOSE OF, OR TRANSPORT AN ARTICLE OR
COMMODITY, OR AN ARTICLE OF TRADE, USE, MERCHANDISE, COMMERCE, OR
CONSUMPTION BELOW A COMMON STANDARD FIGURE OF FIXED VALUE, OR BY WHICH
THEY AGREE IN ANY MANNER TO KEEP THE PRICE OF SUCH ARTICLE, COMMODITY,
OR TRANSPORTATION AT A FIXED OR GRADUATED FIGURE, OR BY WHICH THEY
SHALL IN ANY MANNER ESTABLISH OR SETTLE THE PRICE OF AN ARTICLE,
COMMODITY, OR TRANSPORTATION BETWEEN THEM OR THEMSELVES AND OTHERS, SO
AS DIRECTLY OR INDIRECTLY TO PRECLUDE A FREE AND UNRESTRICTED
COMPETITION AMONG THEMSELVES, PURCHASERS, OR CONSUMERS IN THE SALE OR
TRANSPORTATION OF SUCH ARTICLE OR COMMODITY, OR BY WHICH THEY AGREE TO
POOL, COMBINE, OR DIRECTLY OR INDIRECTLY UNITE ANY INTERESTS WHICH THEY
HAVE CONNECTED WITH THE SALE OR TRANSPORTATION OF SUCH ARTICLE OR
COMMODITY, THAT ITS PRICE MIGHT IN ANY MANNER BE AFFECTED. 

"A TRUST AS DEFINED IN DIVISION (B) OF THIS SECTION IS UNLAWFUL AND
VOID." 

FN6  INVOLVED ARE SECS. 7 AND 8 OF THE NATIONAL LABOR RELATIONS ACT,
AS AMENDED AND RE-ENACTED BY THE LABOR MANAGEMENT RELATIONS ACT, 61
STAT. 140, 29 U.S.C. SECS. 157, 158.  SECTION 7 IS AS FOLLOWS: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)." 

ORGANIZATIONS TO BARGAIN COLLECTIVELY.  SECTION 8(D), IN PERTINENT
PART, PROVIDES: 

"FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS THE
PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT, OR ANY
QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN CONTRACT
INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY EITHER PARTY  ...
." 

FN7  OLIVER IS RATHER UNUSUAL AMONG OHIO OWNER-DRIVERS BECAUSE HE
OWNS NOT ONE VEHICLE BUT A FLEET, SIX TRUCKS AND FOUR TRAILERS, EACH OF
WHICH IS UNDER A LEASE AGREEMENT WITH ONE OR THE OTHER OF THE CARRIER
RESPONDENTS.  OLIVER DROVE ONLY OCCASIONALLY, "EVERY MONTH OR SO FOR
A.C.E. AND EVERY EIGHT MONTHS OR SO FOR INTERSTATE," AND ARTICLE XXXII
APPLIED TO HIS LEASES ONLY AS TO THE VEHICLE HE DROVE ON THOSE
OCCASIONS. 

FN8  ACCORDINGLY, SEC. 15 OF ART. XXXII REQUIRED THE CARRIERS TO TAKE
STEPS TO MODIFY BOTH AGREEMENTS.  THE INTERSTATE TRUCK SERVICE LEASE
WITH OLIVER WAS FOR A FIXED TERM, BUT CONTAINED A FIVE-DAY CANCELLATION
CLAUSE.  THE AGREEMENT BETWEEN A.C.E. AND OLIVER WAS NOT FOR ANY FIXED
TERM AND WAS BROUGHT INTO EFFECT BY THE ISSUANCE OF INDIVIDUAL WAYBILLS
AND MANIFESTS FOR PARTICULAR HAULS. 

FN9  THE RESTRAINTS ENTERED BY THE JUDGMENT AND ORDER OF THE COURT OF
APPEALS FILED SEPTEMBER 30, 1957, ARE: 

"(A)  THAT THE DEFENDANTS-APPELLEES, A.C.E. TRANSPORTATION CO., INC.,
INTERSTATE TRUCK SERVICE, INC., AND DEFENDANTS-APPELLANTS, LOCAL NO. 24
OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS AND EACH OF THEM, THEIR AGENTS, REPRESENTATIVES AND
SUCCESSORS OR PERSONS, ACTING, BY, THROUGH OR FOR THEM, OR IN CONCERT
WITH EACH OTHER, ARE HEREBY PERPETUALLY RESTRAINED AND ENJOINED FROM
ENTERING INTO ANY AGREEMENTS ONE WITH THE OTHER OR CARRYING OUT THE
EFFECT, REQUIREMENTS OR TERMS OF ANY SUCH AGREEMENT, WHICH WILL REQUIRE
THE ALTERATION, CANCELLATION OR VIOLATION OF PLAINTIFF-APPELLEE'S
(REVEL OLIVER'S) EXISTING LEASE OR LEASING AGREEMENT OR ANY SUCH
AGREEMENT HEREAFTER RENEWED OR RENEGOTIATED AND ENTERED INTO, AND: 

"(B)  THAT THE DEFENDANTS-APPELLES, A.C.E. TRANSPORTATION CO., INC.,
INTERSTATE TRUCK SERVICE, INC., AND DEFENDANTS-APPELLANTS, LOCAL NO. 24
OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS AND KENNETH BURKE, PRESIDENT AND BUSINESS AGENT OF SAID
LOCAL AND EACH OF THEM AND THE SUCCESSOR OF EACH AND THOSE ACTING IN
CONCERT WITH SAID DEFENDANTS-APPELLES AND APPELLANTS ARE HEREBY
PERPETUALLY ENJOINED AND RESTRAINED FROM ENTERING INTO ANY COMBINATION,
ARRANGEMENT, AGREEMENT OR STIPULATION IN THE FUTURE, OR THE NEGOTIATION
THEREFOR, THE PURPOSE, INTENT OR TENDENCY OF WHICH IS TO FIX OR
DETERMINE IN ANY MANNER THE RATE TO BE CHARGED FOR THE USE OF
PLAINTIFF'S EQUIPMENT, LEASED BY SAID PLAINTIFF-APPELLEE TO THE
DEFENDANTS-APPELLEES, A.C.E. TRANSPORTATION CO., INC., AND INTERSTATE
TRUCK SERVICE, INC., AND:    "(C)  THAT THE SAID DEFENDANTS-APPELLES,
A.C.E. TRANSPORTATION CO., INC., INTERSTATE TRUCK SERVICE, INC., AND
DEFENDANTS-APPELLANTS, LOCAL NO. 24 OF THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS AND KENNETH BURKE,
PRESIDENT AND BUSINESS AGENT OF SAID LOCAL AND EACH OF THEM AND THE
SUCCESSORS OF EACH ARE HEREBY PERPETUALLY ENJOINED FROM GIVING FORCE
AND EFFECT TO SECTION 32 OF THE CONTRACT BETWEEN THEM AS IS FULLY SET
FORTH IN THIS COURT'S FINDING, OR ANY MODIFICATION OR ALTERATION
THEROF, THE IMPORT, EFFECT OR TENDENCY OF WHICH SHALL ATTEMPT TO FIX
THE RATES AND THE USE OF PLAINTIFF-APPELLEE'S EQUIPMENT OR TO FIX OR
DETERMINE THE RETURN FOR PLAINTIFF-APPELLEE'S CAPITAL INVESTMENT IN
SAID EQUIPMENT." 

FN10 IN ALGOMA, STATE LAW WAS ALLOWED TO OPERATE TO RESTRICT A
PROVISION OF A COLLECTIVE BARGAINING CONTRACT ONLY AFTER IT WAS FOUND
AFTER AN EXHAUSTIVE EXAMINATION OF THE LEGISLATIVE HISTORY OF THE
WAGNER ACT THAT CONGRESS INTENDED TO LEAVE THE SPECIAL SUBJECT OF THE
LEGALITY OF MAINTENANCE OF MEMBERSHIP CLAUSES UP TO THE STATES THROUGH
SEC. 8(3) OF THAT ACT, 49 STAT. 452.  QUESTIONS OF THE NATURE THAT WE
CONSIDER TODAY WERE EXPRESSLY LEFT OPEN.  336 U.S., AT 312. 

THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER AND MR. JUSTICE STEWART
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE WHITTAKER, BELIEVING THAT RESPONDENT OLIVER, WHILE
DRIVING HIS OWN TRACTOR IN THE PERFORMANCE OF HIS INDEPENDENT CONTRACT
WITH THE RESPONDENT CARRIERS, WAS NOT AN EMPLOYEE OF THOSE CARRIERS,
BUT WAS AN INDEPENDENT CONTRACTOR, UNITED STATES V. SILK, 331 U.S. 704,
AND THAT, AS SUCH, HE WAS EXPRESSLY EXCLUDED FROM THE COVERAGE OF THE
NATIONAL LABOR RELATIONS ACT BY 61 STAT. 137, 29 U.S.C. SEC. 152(3),
WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS FOR THE NINTH
JUDICIAL DISTRICT OF OHIO. 

APPENDIX TO OPINION OF THE COURT. 

 ARTICLE XXXII OF THE CENTRAL STATES AREA OVER-THE-ROAD MOTOR
FREIGHT AGREEMENT. 

                              OWNER-OPERATORS. 

PERMITTED CARRIERS, SHALL NOT BE COVERED BY THIS AGREEMENT UNLESS
AFFILIATED BY LEASE WITH A CERTIFICATED OR PERMITTED CARRIER WHICH IS
REQUIRED TO OPERATE IN FULL COMPLIANCE WITH ALL THE PROVISIONS OF THIS
AGREEMENT AND HOLDING PROPER ICC AND STATE CERTIFICATES AND PERMITS. 
SUCH OWNER-OPERATORS SHALL OPERATE EXCLUSIVELY IN SUCH SERVICE AND FOR
NO OTHER INTERESTS.   (NOTE: WHENEVER "OWNER-OPERATOR" IS USED IN THIS
ARTICLE, IT MEANS OWNER-DRIVER ONLY, AND NOTHING IN THIS ARTICLE SHALL
APPLY TO ANY EQUIPMENT LEASED EXCEPT WHERE OWNER IS ALSO EMPLOYED AS A
DRIVER.) 

WORKING CONDITIONS SHALL BE IN FULL ACCORDANCE WITH ALL THE PROVISIONS
OF THIS AGREEMENT.  THE OWNER-OPERATOR SHALL HAVE SENIORITY AS A DRIVER
ONLY. 

NAME OF THE ACTUAL OWNER. 

BY AN EMPLOYEE OF THE CERTIFICATED OR PERMITTED CARRIER.  THE EMPLOYER
EXPRESSLY RESERVES THE RIGHT TO CONTROL THE MANNER, MEANS AND DETAILS
OF, AND BY WHICH, THE OWNER-OPERATOR PERFORMS HIS SERVICES, AS WELL AS
THE ENDS TO BE ACCOMPLISHED. 

AVAILABLE EQUIPMENT, TOGETHER WITH ALL LEASED EQUIPMENT UNDER MINIMUM
THIRTY-DAY BONA FIDE LEASE ARRANGEMENTS, ON A ROTATING BOARD, BEFORE
HIRING ANY EXTRA EQUIPMENT. 

PERMITTED CARRIERS FOR DRIVER'S WAGES AND EQUIPMENT RENTAL.  AT NO TIME
SHALL THE EQUIPMENT CHECK BE FOR LESS THAN ACTUAL MILES OPERATED. 
SEPARATE CHECKS FOR DRIVERS SHALL NOT BE DEDUCTED FROM THE MINIMUM
TRUCK RENTAL REVENUE.  THE DRIVER SHALL TURN IN TIME DIRECT TO THE
CERTIFICATED OR PERMITTED CARRIER.  ALL MONIES DUE THE OWNER-OPERATOR
MAY BE HELD NO LONGER THAN TWO WEEKS, EXCEPT WHERE THE LEASE OF
EQUIPMENT AGREEMENT IS TERMINATED AND IN SUCH CASES ALL MONIES DUE THE
OPERATOR MAY BE HELD NO LONGER THAN THIRTY (30) DAYS FROM THE DATE OF
THE TERMINATION OF THE OPERATION OF THE EQUIPMENT. 

ISSUANCE OF A CHECK FOR THE FULL MILEAGE OPERATED, TONNAGE OR
PERCENTAGE, LESS ANY AGREED ADVANCES.  A STATEMENT OF ANY CHARGES BY
THE CERTIFICATED OR PERMITTED CARRIER SHALL BE ISSUED AT THE SAME TIME,
BUT SHALL NOT BE DEDUCTED IN ADVANCE. 

PURCHASE GASOLINE, OIL, GREASE, TIRES, TUBES, ETC., INCLUDING REPAIR
WORK, AT ANY PLACE WHERE EFFICIENT SERVICE AND SATISFACTORY PRODUCTS
CAN BE OBTAINED AT THE MOST FAVORABLE PRICES. 

OPERATION FOR ANY REASON WHATSOEVER. 

AGREES TO PAY ROAD OR MILE TAX, SOCIAL SECURITY TAX, COMPENSATION
INSURANCE, PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE, BRIDGE
TOLLS, FEES FOR CERTIFICATES, PERMITS AND TRAVEL ORDERS, FINES AND
PENALTIES FOR INADEQUATE CERTIFICATES, LICENSE FEES, WEIGHT TAX AND
WHEEL TAX, AND FOR LOSS OF DRIVING TIME DUE TO WAITING AT STATE LINES,
AND ALSO CARGO INSURANCE.  IT IS EXPRESSLY UNDERSTOOD THAT THE OWNER
DRIVER SHALL PAY THE LICENSE FEES IN THE STATE IN WHICH TITLE IS
REGISTERED. 

ALL TOLLS, NO MATTER HOW COMPUTED, MUST BE PAID BY THE EMPLOYER
REGARDLESS OF ANY AGREEMENT TO THE CONTRARY. 

ALL TAXES OR ADDITIONAL CHARGES IMPOSED BY LAW RELATING TO ACTUAL
TRUCK OPERATION AND USE OF HIGHWAYS, NO MATTER HOW COMPUTED OR NAMED,
SHALL BE PAID BY THE CARRIER, EXCEPTING ONLY VEHICLE LICENSING AS SUCH,
IN THE STATE WHERE TITLE IS REGISTERED. 

MONEY ADVANCED PRIOR TO THE REGULAR PAY DAY.   SECTION 12.  (A) ALL
CERTIFICATED OR PERMITTED CARRIERS HIRING OR LEASING EQUIPMENT OWNED
AND DRIVEN BY THE OWNER-DRIVER SHALL FILE A TRUE COPY OF THE LEASE
AGREEMENT COVERING THE OWNER-DRIVEN EQUIPMENT WITH THE JOINT STATE
COMMITTEES.  THE TERMS OF THE LEASE SHALL COVER ONLY THE QUIPMENT OWNED
AND DRIVEN BY THE OWNER-DRIVER AND SHALL BE IN COMPLETE ACCORD WITH THE
MINIMUM RATES AND CONDITIONS PROVIDED HEREIN, PLUS THE FULL WAGE RATE
AND SUPPLEMENTARY ALLOWANCES FOR DRIVERS AS EMBODIED ELSEWHERE IN THIS
AGREEMENT. 

(B)  THE MINIMUM RATE FOR LEASED EQUIPMENT OWNED AND DRIVEN BY THE
OWNER-DRIVER SHALL BE:

PER MILE 

SINGLE AXLE, TRACTOR ONLY         9 1/2 CENTS 

TANDEM AXLE, TRACTOR ONLY                      10 CENTS 

SINGLE AXLE, TRAILER ONLY                                 3 CENTS 

TANDEM AXLE, TRAILER ONLY                                    4 CENTS
75% OF THE ABOVE RATES TO APPLY FOR DEADHEADING, IF AND WHEN ORDERED,
PROVIDED, HOWEVER, THAT THE 75% RATE WILL APPLY ONLY ON FIRST EMPTY
DISPATCH AWAY FROM THE HOME TERMINAL; THEREAFTER THE FULL EQUIPMENT
RENTAL RATE TO APPLY UNTIL DRIVER IS REDISPATCHED FROM HOME TERMINAL;
THE ABOVE RATES TO BE BASED ON 23,000-POUND LOAD LIMIT.  ON LOAD LIMITS
OVER 23,000 POUNDS, THERE SHALL BE ONE-HALF (1/2) CENT ADDITIONAL PER
MILE FOR EACH 1,000 POUNDS OR FRACTION THEREOF IN EXCESS OF 23,000
POUNDS.  THERE SHALL BE A MINIMUM GUARANTEE OF 24,000 POUNDS FOR LEASED
EQUIPMENT OWNED AND DRIVEN BY THE OWNER-DRIVER.  NOTHING HEREIN SHALL
APPLY TO LEASED EQUIPMENT NOT OWNED BY A DRIVER. 

THE MINIMUM RATES SET FORTH ABOVE RESULT FROM THE JOINT DETERMINATION
OF THE PARTIES THAT SUCH RATES REPRESENT ONLY THE ACTUAL COST OF
OPERATING SUCH EQUIPMENT.  THE PARTIES HAVE NOT ATTEMPTED TO NEGOTIATE
A PROFIT FOR THE OWNER-DRIVER. 

EQUIPMENT FOR PICKUP OR DELIVERY AT POINT OF ORIGIN TERMINAL OR AT
POINT OF DESTINATION TERMINAL, BUT SHALL BE SUBJECT TO NEGOTIATIONS
BETWEEN THE LOCAL UNION AND COMPANY.  FAILURE TO AGREE SHALL BE
SUBMITTED TO THE GRIEVANCE PROCEDURE. 

PAYMENT IS HIGHER THAN THE MINIMUMS ESTABLISHED HEREIN FOR THIS TYPE OF
OPERATION.  WHERE OWNER-OPERATOR IS PAID ON A PERCENTAGE OR TONNAGE
BASIS AND THE OPERATING COMPANY REDUCES ITS TARIFF, THE PERCENTAGE OR
TONNAGE BASIS OF PAYMENT SHALL BE AUTOMATICALLY ADJUSTED SO THAT THE
OWNER-OPERATOR SUFFERS NO REDUCTION IN EQUIPMENT RENTAL OR WAGES, OR
BOTH. 

ARRANGEMENTS WHICH HAVE HERETOFORE BEEN ENTERED INTO BETWEEN MEMBERS OF
THIS UNION, EITHER AMONG THEMSELVES OR WITH THE EMPLOYER OR WITH THE
AID OF THE EMPLOYER, APPLICABLE TO OWNER-DRIVER EQUIPMENT CONTRARY TO
THE TERMS HEREOF, SHALL BE DISSOLVED OR MODIFIED WITHIN THIRTY (30)
DAYS AFTER THE SIGNING OF THIS AGREEMENT SO THAT SUCH ARRANGEMENTS
SHALL APPLY ONLY TO EQUIPMENT OF THE OWNER-DRIVER WHILE BEING DRIVEN BY
SUCH OWNER-DRIVER.  IN THE EVENT THAT THE PARTIES CANNOT AGREE ON A
METHOD OF DISSOLUTION OR MODIFICATION OF SUCH ARRANGEMENT TO MAKE THE
SAME CONFORM TO THIS AGREEMENT, THE QUESTION OF DISSOLUTION OR
MODIFICATION SHALL BE SUBMITTED TO ARBITRATION, EACH PARTY TO SELECT
ONE MEMBER OF THE ARBITRATION BOARD, AND THE TWO SO SELECTED TO CHOOSE
A THIRD MEMBER OF SAID BOARD.  IF THE TWO CANNOT AGREE UPON THE THIRD
WITHIN FIVE (5) DAYS, HE SHALL BE APPOINTED BY THE JOINT STATE
COMMITTEE.  THE DECISION OF SAID BOARD TO BE FINAL AND BINDING. 

THIS ENTIRE AGREEMENT IS TO ASSURE THE PAYMENT OF THE UNION SCALE OF
WAGES AS PROVIDED IN THIS AGREEMENT AND TO PROHIBIT THE MAKING AND
CARRYING OUT OF ANY PLAN, SCHEME OR DEVICE TO CIRCUMVENT OR DEFEAT THE
PAYMENT OF WAGE SCALES PROVIDED IN THIS AGREEMENT.  THIS CLAUSE IS
INTENDED TO PREVENT THE CONTINUATION OF OR FORMATION OF COMBINATIONS OR
CORPORATIONS OR SO-CALLED LEASE OF FLEET ARRANGEMENTS WHEREBY THE
DRIVER IS REQUIRED TO AND DOES PERIODICALLY PAY LOSSES SUSTAINED BY THE
CORPORATION OR FLEET ARRANGEMENT, OR IS REQUIRED TO ACCEPT LESS THAN
THE ACTUAL COST OF THE RUNNING OF HIS EQUIPMENT, THUS, IN FACT,
REDUCING HIS SCALE OF PAY. 

CERTIFICATED OR PERMITTED CARRIER REQUIRES THAT THE "DRIVER-OWNER
OPERATOR" SELL HIS EQUIPMENT TO THE EMPLOYER OR CERTIFICATED OR
PERMITTED CARRIER, DIRECTLY OR INDIRECTLY, THE "DRIVER-OWNER-OPERATOR"
SHALL BE PAID THE FAIR TRUE VALUE OF SUCH EQUIPMENT.  COPIES OF THE
INSTRUMENTS OF SALE SHALL BE FILED WITH THE UNION AND UNLESS OBJECTED
TO WITHIN TEN (10) DAYS SHALL BE DEEMED SATISFACTORY.  IF ANY QUESTION
IS RAISED BY THE UNION AS TO SUCH VALUE, THE SAME SHALL BE SUBMITTED TO
ARBITRATION, AS ABOVE SET FORTH, FOR DETERMINATION.  THE DECISION OF
THE ARBITRATION BOARD SHALL BE FINAL AND BINDING. 

OR PERMITTED CARRIER WILL NOT DEVISE OR PUT INTO OPERATION ANY SCHEME,
WHETHER HEREIN ENUMERATED OR NOT, TO DEFEAT THE TERMS OF THIS
AGREEMENT, WHEREIN THE PROVISIONS AS TO COMPENSATION FOR SERVICES ON
AND FOR USE OF EQUIPMENT OWNED BY OWNER-DRIVER SHALL BE LESSENED, NOR
SHALL ANY OWNER-DRIVER LEASE BE CANCELLED FOR THE PURPOSE OF DEPRIVING
UNION EMPLOYEES OF EMPLOYMENT, AND ANY SUCH COMPLAINT THAT SHOULD ARISE
PERTAINING TO SUCH CANCELLATION OF LEASE OR VIOLATION UNDER THIS

PERMITTED BY ALL CERTIFICATED OR PERMITTED CARRIERS WHO WILL AGREE TO
SUBMIT ALL GRIEVANCES PERTAINING TO OWNER-OPERATORS TO JOINT EMPLOYER
UNION GRIEVANCE COMMITTEES IN EACH RESPECTIVE STATE.  IT IS UNDERSTOOD
AND AGREED THAT ALL SUCH GRIEVANCES WILL BE PROMPTLY HEARD AND DECIDED
WITH THE SPECIFIC PURPOSE IN MIND OF: 

(1)  PROTECTING PROVISIONS OF THE UNION CONTRACT. 

(2)  PROHIBITING ANY AND ALL VIOLATIONS DIRECTLY OR INDIRECTLY OF
CONTRACT PROVISIONS RELATING TO THE PROPER USE OF INDIVIDUAL OWNERS. 

(3)  PROHIBITING ANY ATTEMPTS BY ANY CERTIFICATED OR PERMITTED
CARRIER IN CHANGING HIS OPERATION WHICH WILL AFFECT THE RIGHTS OF
DRIVERS UNDER THE TERMS OF THE CONTRACT, AND GENERALLY THE CERTIFICATED
OR PERMITTED CARRIERS AGREE TO ASSUME RESPONSIBILITY IN POLICING AND
DOING EVERYTHING WITHIN THEIR POWER TO ELIMINATE ALL ALLEGED ABUSES IN
THE USE OF OWNER-DRIVERS WHICH RESULTED IN THE INSERTION OF SECTION 19
(ARTICLE XXXIII) IN THE ORIGINAL 1945-47 OVER-THE ROAD CONTRACT. 

(4)  OWNER-DRIVER OPERATIONS TO BE TERMINAL TO TERMINAL, EXCEPT WHERE
NO LOCAL EMPLOYEES TO MAKE SUCH DELIVERIES OR OTHERWISE AGREED TO IN
THIS CONTRACT. 

(5)  THE CERTIFICATED OR PERMITTED CARRIERS AGREE THAT THEY WILL,
WITH A JOINT MEETING OF THE UNIONS, SET UP UNIFORM RULES AND PRACTICES
UNDER WHICH ALL SUCH CASES WILL BE HEARD. 

(6)  IT SHALL BE CONSIDERED A VIOLATION OF THE CONTRACT SHOULD ANY
OPERATOR DEDUCT FROM RENTAL OF EQUIPMENT THE INCREASES PROVIDED FOR BY
THE 1955 AMENDMENTS OR PUT INTO EFFECT ANY MEANS OF EVASION TO
CIRCUMVENT ACTUAL PAYMENT OF INCREASES AGREED UPON EFFECTIVE FOR THE
PERIOD STARTING FEBRUARY 1, 1955, AND ENDING JANUARY 31, 1961. 

(B)  NO OWNER-OPERATOR SHALL BE PERMITTED TO DRIVE OR HOLD SENIORITY
WHERE HE OWNS THREE OR MORE PIECES OF LEASED EQUIPMENT.  THIS PROVISION
SHALL NOT APPLY TO PRESENT OWNER-OPERATORS HAVING THREE OR MORE PIECES
OF EQUIPMENT UNDER LEASE AGREEMENT, BUT SUCH OWNER-OPERATOR SHALL NOT
BE PERMITTED TO PUT ADDITIONAL EQUIPMENT IN SERVICE SO LONG AS HE
ENGAGES IN WORK COVERED BY THIS AGREEMENT OR HOLDS SENIORITY.  WHERE
OWNER-OPERATOR DRIVES, HE CAN HOLD SENIORITY WHERE HE WORKS SIXTY (60)
PER CENT OR MORE OF TIME. 
..END :




SECOND FEDERAL SAVINGS AND LOAN OF CLEVELAND V. BOWERS 358 U.S. 305 


NO. 537.  DECIDED JANUARY 19, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  168 OHIO ST. 65, 151 N.E.2D 223. 


SECOND FEDERAL SAVINGS AND LOAN ASSOCIATION OF CLEVELAND V. BOWERS, TAX
COMMISSIONER OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE HARLAN IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :












CUDD V. MATHERS 358 U.S. 306 


NO. 520.  DECIDED JANUARY 19, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CUDD V. MATHERS, JUDGE, NINTH JUDICIAL CIRCUIT OF ILLINOIS. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















LANCASTER SECURITY INVESTMENT CORP. V. KESSLER 358 U.S. 306 


NO. 521.  DECIDED JANUARY 19, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  159 CAL. APP. 2D 649, 324 P.2D 634. 


LANCASTER SECURITY INVESTMENT CORP. V. KESSLER ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















MITCHELL V. LUBLIN, MCGAUGHY & ASSOCIATES 358 U.S. 207 


NO. 37.  ARGUED OCTOBER 21, 1958 - DECIDED JANUARY 12, 1959 - 250 F.2D
253, REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS. 


THE SECRETARY OF LABOR BROUGHT THIS ACTION UNDER SEC. 17 OF THE FAIR
LABOR STANDARDS ACT TO RESTRAIN RESPONDENT FROM VIOLATING THE RECORD
KEEPING AND OVERTIME PROVISIONS OF THE ACT.  RESPONDENT IS A FIRM OF
ARCHITECTS AND ENGINEERS WHICH DESIGNS PUBLIC, INDUSTRIAL AND
RESIDENTIAL PROJECTS AND PREPARES PLANS AND SPECIFICATIONS FOR THEM. 
IT HAS OFFICES IN NORFOLK, VA., AND WASHINGTON, D.C., AND EMPLOYS 65 OR
70 PERSONS.  MANY OF ITS PROJECTS AND CLIENTS ARE LOCATED OUTSIDE OF
VIRGINIA AND THE DISTRICT OF COLUMBIA.  ITS FIELDMEN OFTEN TRAVEL
ACROSS STATE LINES, AND ITS PLANS AND SPECIFICATIONS OFTEN ARE SENT
ACROSS STATE LINES.  ITS DRAFTSMEN, FIELDMEN, CLERKS AND STENOGRAPHERS
ALL WORK INTIMATELY WITH PLANS AND SPECIFICATIONS PREPARED BY
RESPONDENT FOR THE CONSTRUCTION, REPAIR, RELOCATION AND IMPROVEMENT OF
VARIOUS INTERSTATE INSTRUMENTALITIES AND FACILITIES, INCLUDING AIR
BASES, ROADS, TURNPIKES, BUS TERMINALS AND RADIO AND TELEVISION
INSTALLATIONS.  HELD: 

1.  RESPONDENT'S NON-PROFESSIONAL EMPLOYEES ARE "ENGAGED IN COMMERCE"
AS THAT TERM IS USED IN SECS. 6 AND 7 OF THE ACT, AND THEY ARE WITHIN
THE COVERAGE OF THE ACT.  PP. 208-213. 

(A)  THE WORK DONE ON PLANS AND SPECIFICATIONS FOR INSTRUMENTALITIES
AND FACILITIES OF INTERSTATE COMMERCE IS SO DIRECTLY AND VITALLY
RELATED TO THEIR FUNCTIONING AS TO BE, IN PRACTICAL EFFECT, A PART OF
SUCH COMMERCE.  P. 212. 

(B)  THAT A PORTION OF RESPONDENT'S BUSINESS PERTAINS TO MILITARY
BASES OR NEW CONSTRUCTION DOES NOT REQUIRE A DIFFERENT RESULT.  P.
213. 

(C)  THE CONTROLLING FACTOR IS THE ACTIVITIES OF THE INDIVIDUAL
EMPLOYEES, AND THE EMPLOYEES HERE INVOLVED ARE CLEARLY "ENGAGED IN
COMMERCE."  P. 213. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, INJUNCTIVE RELIEF WOULD NOT
APPEAR TO BE IMPROPER AS A MATTER OF LAW; BUT IT WILL BE WITHIN THE
DISCRETION OF THE DISTRICT COURT WHETHER OR NOT TO ISSUE AN INJUNCTION
AFTER FURTHER PROCEEDINGS ON REMAND OF THE CASE.  PP. 213-215. 

MITCHELL, SECRETARY OF LABOR, V. LUBLIN, MCGAUGHY & ASSOCIATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PETITIONER, THE SECRETARY OF LABOR, BROUGHT THIS ACTION UNDER SEC. 17
OF THE FAIR LABOR STANDARDS ACT, 29 U.S.C. SEC. 217, (FN1) TO RESTRAIN
RESPONDENT (FN2) FROM VIOLATING THE RECORD-KEEPING AND OVERTIME
PROVISIONS OF THE ACT.  29 U.S. C. SECS. 206, 207, 211.  THE COMPLAINT
WAS DISMISSED BASICALLY ON THE LOWER COURT'S CONCLUSION THAT THE
ACTIVITIES OF RESPONDENT, AN ARCHITECTURAL AND CONSULTING ENGINEERING
FIRM, WERE LOCAL IN NATURE AND NOT WITHIN THE ACT'S COVERAGE.  250 F.2D
253.  WE GRANTED CERTIORARI, 356 U.S. 917, TO RESOLVE AN APPARENT
CONFLICT WITH A DECISION OF ANOTHER COURT OF APPEALS IN A SIMILAR
CASE.  (FN3) 

RESPONDENT IS HIRED TO DESIGN PUBLIC, INDUSTRIAL AND RESIDENTIAL
PROJECTS AND TO PREPARE PLANS AND SPECIFICATIONS NECESSARY FOR THEIR
CONSTRUCTION.  IT HAS OFFICES IN BOTH NORFOLK, VIRGINIA, AND
WASHINGTON, D.C., AND IT EMPLOYES SOME SIXTY-FIVE OR SEVENTY PERSONS. 
RESPONDENT DOES CONSIDERABLE WORK FOR THE ARMED SERVICES.  THE DISTRICT
COURT ESTIMATED THAT APPROXIMATELY 60% OF THE WORK IN THE NORFOLK
OFFICE HAS BEEN DONE FOR THE ARMY ENGINEERS OR THE NAVY DEPARTMENT
WHILE 85% OF THE WORK IN WASHINGTON HAS BEEN PERFORMED FOR SIMILAR
AGENCIES OR FOR SUBDIVISIONS OF LOCAL GOVERNMENTS IN THE DISTRICT AND
NEARBY STATES.  MANY OF RESPONDENT'S PROJECTS AND CLIENTS ARE LOCATED
OUTSIDE VIRGINIA AND THE DISTRICT OF COLUMBIA.  A TYPICAL PROJECT
UNDERTAKEN IN THE PAST WAS THE DESIGN OF A STANDARD MOBILE ARMY
WAREHOUSE WITH THE ATTENDANT PREPARATION OF DETAILED PLANS AND
SPECIFICATIONS.  IN ADDITION, RESPONDENT HAS RESIGNED VARIOUS
CONSTRUCTION PROJECTS INCLUDING THE WIDENING OF STREETS AT A NAVAL
OPERATING BASE, THE EXTENSION AND PAVING OF AIRPLANE TAXIWAYS AND
PARKING APRONS AT A NAVAL AIR STATION, A LOCAL SEWERAGE SYSTEM IN
MARYLAND, THE ALTERATION OF VARIOUS HANGAR FACILITIES AT MILITARY AIR
BASES, THE RELOCATION OF RADIO AND TELEVISION FACILITIES, THE
IMPROVEMENT OF STATE ROADS AND TURNPIKES, AND THE REPAIR OF GOVERNMENT
BUILDINGS AT SHIPYARDS.  THE BALANCE OF RESPONDENT'S ACTIVITY HAS
CONSISTED OF PREPARING PLANS AND SPECIFICATIONS FOR THE CONSTRUCTION OF
PRIVATE PROJECTS SUCH AS HOMES, COMMERCIAL BUILDINGS, BUS TERMINALS,
SHOPPING CENTERS AND THE LIKE.  RESPONDENT HAS PERFORMED CERTAIN
SUPERVISORY FUNCTIONS IN CONNECTION WITH THE CONSTRUCTION OF SOME OF
THE PRIVATE PROJECTS BUT ALMOST NONE WHERE GOVERNMENTAL AGENCIES WERE
INVOLVED. 

THE GOVERNMENT CONTRACTS REQUIRED RESPONDENT TO PRODUCE PLANS AND
SPECIFICATIONS, COPIES OF WHICH WERE SENT BY THE GOVERNMENTAL AGENCIES
TO PROSPECTIVE BIDDERS, MANY OF WHOM WERE LOCATED OUTSIDE VIRGINIA AND
THE DISTRICT OF COLUMBIA.  THESE PLANS CONSISTED OF DRAWINGS AND
DESIGNS AND WERE SUPPLEMENTED BY EXPLANATORY SPECIFICATIONS WHICH
CONTAINED THE INFORMATION NECESSARY FOR ESTIMATING COST AND GUIDING
CONTRACTORS IN BIDDING AND CONSTRUCTION.  THEY WERE PREPARED UNDER THE
SUPERVISION OF RESPONDENT'S PROFESSIONAL MEMBERS AND ASSOCIATES BY
DRAFTSMEN EXPLOYED BY RESPONDENT.  IN MANY CASES, THE INFORMATION
NECESSARY TO PREPARE THE PLANS AND SPECIFICATIONS WAS GATHERED ON THE
SITE OF THE PROJECTS BY FIELDMEN EMPLOYED BY RESPONDENT.  THESE
FIELDMEN INCLUDED SURVERYORS, TRANSITMEN AND CHAINMEN WHO OFTEN
TRAVELED ACROSS STATE LINES TO GET TO THE PROJECTS.  ON ONE PROJECT,
FIELDMEN FROM THE WASHINGTON OFFICE WENT DAILY TO NEARBY MARYLAND TO
GATHER DATA FOR A SEWERAGE PROJECT.  IN ADDITION TO THE DRAFTSMEN AND
FIELDMEN, VARIOUS CLERKS AND STENOGRAPHERS EMPLOYED BY RESPONDENT
PARTICIPATED IN THE MECHANICAL PREPARATION OF THESE PLANS AND
SPECIFICATIONS. 

THE PARTIES ARE AGREED THAT RESPONDENT'S PROFESSIONAL EMPLOYEES -
ARCHITECTS AND ENGINEERS - ARE EXEMPTED FROM THE COVERAGE OF THE ACT BY
SEC. 13(A)(1), 29 U.S.C. SEC.  213(A)(1).  (FN4) THEREFORE, THE
SECRETARY'S INJUNCTION ACTION IS DIRECTED AT SOME FIFTY EMPLOYEES
MENTIONED ABOVE: DRAFTSMEN, FIELDMEN, CLERKS AND STENOGRAPHERS.  THE
STENORGRAPHERS, IN ADDITION TO THEIR CONNECTION WITH THE PLANS AND
SPECIFICATIONS, MANNED RESPONDENT'S PRIVATE PHONE WIRE CONNECTING THE
NORFOLK AND WASHINGTON OFFICES, PREPARED AND TYPED SUBSTANTIAL NUMBERS
OF LETTERS CONCERNING THE DESCRIBED PROJECTS WHICH WERE MAILED TO
PERSONS IN PLACES OTHER THAN VIRGINIA AND THE DISTRICT OF COLUMBIA, AND
PREPARED PAYROLLS IN THE VIRGINIA OFFICE FOR EMPLOYEES AT THE
WASHINGTON AND NORFOLK LOCATIONS. 

THE QUESTION AT ISSUE IS WHETHER THESE NON-PROFESSIONAL EMPLOYEES ARE
"ENGAGED IN COMMERCE" AS THAT TERM IS USED IN SECS. 6 AND 7 OF THE ACT,
29 U.S.C. SECS. 206, 207.  (FN5)  TO DETERMINE THE ANSWER TO THIS
QUESTION, WE FOCUS ON THE ACTIVITIES OF THE EMPLOYEES AND NOT ON THE
BUSINESS OF THE EMPLOYER.  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517;
WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564; MITCHELL V. VOLLMER &
CO., 349 U.S. 427.  WE START WITH THE PREMISE THAT CONGRESS, BY
EXCLUDING FROM THE ACT'S COVERAGE EMPLOYEES WHOSE ACTIVITIES MERELY
"AFFECT COMMERCE," INDICATED ITS INTENT NOT TO MAKE THE SCOPE OF THE
ACT COEXTENSIVE WITH ITS POWER TO REGULATE COMMERCE.  (FN6)  KIRSCHBAUM
CO. V. WALLING, SUPRA; MCLEOD V. THRELKELD, 319 U.S. 491.  HOWEVER,
WITHIN THE TESTS OF COVERAGE FASHIONED BY CONGRESS, THE ACT HAS BEEN
CONSTRUED LIBERALLY TO APPLY TO THE FURTHEST REACHES CONSISTENT WITH
CONGRESSIONAL DIRECTION.  THUS THE COURT STATED IN OVERSTREET V. NORTH
SHORE CORP., 318 U.S. 125, 128, "  ...  THE POLICY OF CONGRESSIONAL
ABNEGATION WITH RESPECT TO OCCUPATIONS AFFECTING COMMERCE IS NO REASON
FOR NARROWLY CIRCUMSCRIBING THE PHRASE 'ENGAGED IN COMMERCE.'"  (FN7) 

WHERE EMPLOYEES' ACTIVITIES HAVE RELATED TO INTERSTATE
INSTRUMENTALITIES OR FACILITIES, SUCH AS BRIDGES, CANALS AND ROADS, WE
HAVE USED A PRACTICAL TEST TO DETERMINE WHETHER THEY ARE "ENGAGED IN
COMMERCE."  THE TEST IS "WHETHER THE WORK IS SO DIRECTLY AND VITALLY
RELATED TO THE FUNCTIONING OF AN INSTRUMENTALITY OR FACILITY OF
INTERSTATE COMMERCE AS TO BE, IN PRACTICAL EFFECT, A PART OF IT, RATHER
THAN ISOLATED, LOCAL ACTIVITY."  MITCHELL V. VOLLMER & CO., SUPRA, AT
429.  (FN8)  COVERAGE IN THE INSTANT CASE MUST BE DETERMINED BY THAT
TEST FOR, AS THE PARTIES STIPULATED BELOW, THE DRAFTSMEN, FIELDMEN,
CLERKS AND STENOGRAPHERS ALL WORKED INTIMATELY WITH THE PLANS AND
SPECIFICATIONS PREPARED BY RESPONDENT FOR THE REPAIR AND CONSTRUCTION
OF VARIOUS INTERSTATE INSTRUMENTALITIES AND FACILITIES INCLUDING AIR
BASES, ROADS, TURNPIKES, BUS TERMINALS, AND RADIO AND TELEVISION
INSTALLATIONS.  IN OUR VIEW, SUCH WORK IS DIRECTLY AND VITALLY RELATED
TO THE FUNCTIONING OF THESE FACILITIES BECAUSE, WITHOUT THE PREPARATION
OF PLANS FOR GUIDANCE, THE CONSTRUCTION COULD NOT BE EFFECTED AND THE
FACILITIES COULD NOT FUNCTION AS PLANNED.  IN OUR MODERN,
TECHNOLOGICALLY ORIENTED SOCIETY, THE ELEMENTS WHICH COMBINE TO PRODUCE
A FINAL PRODUCT ARE DIFFUSE AND VARIEGATED.  DECIDING WHETHER ANY ONE
ELEMENT IS SO DIRECTLY RELATED TO THE END PRODUCT AS TO BE CONSIDERED
VITAL IS SOMETIMES A DIFFICULT PROBLEM.  BUT PLANS, DRAWINGS AND
SPECIFICATIONS HAVE TAKEN ON GREATER IMPORTANCE AS THE COMPLEXITIES OF
DESIGN AND BIDDING HAVE INCREASED.  UNDER THE CIRCUMSTANCES PRESENT
HERE, WE HAVE NO HESITANCY IN CONCLUDING THAT THE PREPARATION OF THE
PLANS AND SPECIFICATIONS WAS DIRECTLY RELATED TO THE END PRODUCTS AND
THAT THE EMPLOYEES WHOSE ACTIVITIES WERE INTIMATELY RELATED TO SUCH
PREPARATION WERE "ENGAGED IN COMMERCE." 

RESPONDENT URGES THAT MILITARY BASES ARE NOT INSTRUMENTALITIES OF
COMMERCE, BUT RATHER OF WAR, AND, IN ADDITION, THAT MANY OF THE
PROJECTS INVOLVED NEW CONSTRUCTION AND HENCE CANNOT BE CONSIDERED AS
EXISTING FACILITIES OR INSTRUMENTALITIES OF INTERSTATE COMMERCE.  IN
ANSWER TO RESPONDENT'S FIRST POINT, IT IS SUFFICIENT TO NOTE THAT UNDER
THE COURT'S REASONING IN POWELL V. UNITED STATES CARTRIDGE CO., 339
U.S. 497, A FACILITY DESIGNED FOR WAR MAY ALSO BE AN INSTRUMENTALITY OF
COMMERCE.   SEE MITCHELL V. H.B. ZACHRY CO., 127 F. SUPP.  377.  HERE
RESPONDENT'S EMPLOYEES ADMITTEDLY WORKED ON PLANS AND SPECIFICATIONS
RELATING TO CONSTRUCTION AT MILITARY AIR BASES.  AND IT IS NOT DISPUTED
THAT THESE BASES ARE USED FOR INTERSTATE COMMERCE, AT LEAST TO THE
EXTENT THAT INTERSTATE FLIGHTS BOTH LAND AT AND TAKE OFF FROM THEM, AND
MEN, MATERIALS, AND MAIL MOVE THROUGH THEM FROM DISTANT POINTS. 
RESPONDENT'S SECOND OBJECTION MUST BE REJECTED ALSO.  WHATEVER VITALITY
THE "NEW CONSTRUCTION" DOCTRINE RETAINS AFTER MITCHELL V. VOLLMER &
CO., SUPRA, AND SOUTHERN PACIFIC CO. V. GILEO, 351 U.S. 493, 500, IS IS
NOT APPLICABLE HERE BECAUSE, AS THE RECORD SHOWS, MANY PROJECTS
INVOLVED THE REPAIR, EXTENSION, OR RELOCATION OF EXISTING FACILITIES. 

RESPONDENT CONTENDS THAT ITS ACTIVITIES ARE ESSENTIALLY LOCAL IN
NATURE.  BUT AS WE STATED, CONGRESS DEEMED THE ACTIVITIES OF THE
INDIVIDUAL EMPLOYEES, NOT THOSE OF THE EMPLOYER, THE CONTROLLING FACTOR
IN DETERMINING THE PROPER APPLICATION OF THE ACT.  HERE THE ACTIVITIES
OF THE EMPLOYEES SHOW CLEARLY THAT THEY ARE "ENGAGED IN COMMERCE" AND
THUS ARE ELIGIBLE FOR THE PROTECTIONS AFFORDED BY THE ACT. 

ALTHOUGH NOT AN ISSUE BELOW AND NOT A MATTER OF DISAGREEMENT BETWEEN
THE PARTIES BEFORE THIS COURT, SOME DOUBT HAS ARISEN WHETHER INJUNCTIVE
RELIEF IS PROPER IN THIS CASE.  EXAMINATION OF THE RECORD REVEALS THAT
THE CONTROVERSY HAS BEEN WHETHER THE ADMITTED ACTIVITIES OF
RESPONDENT'S EMPLOYEES DURING THE PERIOD OF THE COMPLAINT BROUGHT THEM
WITHIN THE ACT'S COVERAGE.  RESPONDENT DOES NOT APPEAR EVER TO HAVE
URGED THAT AN INJUNCTION WOULD BE IMPROPER IF, AS A MATTER OF LAW, ITS
EMPLOYEES WERE "ENGAGED IN COMMERCE."  ITS POSITION SEEMS CORRECT IN
LIGHT OF THE SPECIFIC STATUTORY PROVISION, SEC. 17, 29 U.S.C. SEC. 217,
WHICH GIVES THE DISTRICT COURTS JURISDICTION TO RESTRAIN VIOLATIONS OF
THE ACT.  AND THE NUMEROUS SUITS BROUGHT BY THE DEPARTMENT OF LABOR
UNDER THAT SECTION ATTEST TO THE FACT THAT THE COMMENCEMENT OF AN
INJUNCTION ACTION, WHERE COVERAGE IS IN DOUBT, IS NOT AT ALL UNUSUAL. 
SEE, E.G., MITCHELL V. VOLLMER & CO., SUPRA; WALLING V. JACKSONVILLE
PAPER CO., SUPRA; KIRSCHBAUM CO. V. WALLING, SUPRA; MITCHELL V. RAINES,
238 F.2D 186; MITCHELL V. FEINBERG, 236 F.2D 9; CHAMBERS CONSTRUCTION
CO. V. MITCHELL, 233 F.2D 717. 

THE ACT SETS UP FOUR MEANS FOR ENFORCEMENT.  SECTION 16(A), 29 U.S.C.
SEC. 216(A), PROVIDES FOR CRIMINAL PROSECUTION OF WILLFUL VIOLATORS. 
RIGHTS OF ACTIONS IN CIVIL SUITS TO RECOVER UNPAID MINIMUM WAGES,
OVERTIME COMPENSATION AND CERTAIN LIQUIDATED DAMAGES.  SECTION 16(C),
29 U.S.C. SEC. 216(C), ALLOWS THE SECRETARY OF LABOR TO BRING SUCH AN
ACTION IN BEHALF OF SUCH EMPLOYEES PROVIDED THE SUIT DOES NOT INVOLVE
"AN ISSUE OF LAW WHICH HAS NOT BEEN SETTLED FINALLY BY THE COURTS." 
EVEN A CURSORY EXAMINATION OF THESE PROVISIONS SHOWS THAT THE
INJUNCTION IS THE ONLY EFFECTIVE DEVICE AVAILABLE TO THE SECRETARY WHEN
COVERAGE IS IN DOUBT AND HE WISHES TO ESTABLISH THE AVAILABILITY OF THE
ACT TO EMPLOYEES NOT THERETOFORE AFFORDED ITS PROTECTIONS. 

WE FAIL TO SEE WHAT UNDUE BURDEN WILL BE PLACED ON RESPONDENT BY THE
ISSUANCE OF AN INJUNCTION ESPECIALLY IN VIEW OF THE DISTRICT COURT'S
SUGGESTION, TO WHICH BOTH PARTIES APPEAR TO HAVE ACQUIESCED, THAT IF
COVERAGE PREMISED ON THE ADMITTED ACTIVITIES IS ESTABLISHED, THE
PARTIES SHOULD HAVE NO TROUBLE IN DECIDING WHICH OF THE EMPLOYEES ARE
COVERED.  IN ANY EVENT, UPON PROCEEDINGS ON REMAND, IT WILL STILL BE
WITHIN THE DISCRETION OF THE DISTRICT COURT WHETHER OR NOT TO ISSUE AN
INJUNCTION.  IF, FOR INSTANCE, RESPONDENT DISCLOSES ITS RECORDS, ENTERS
A STIPULATION CONCERNING WHICH EMPLOYEES ARE COVERED, AND AGREES NOT TO
VIOLATE THE ACT IN THE FUTURE, THE DISTRICT COURT MIGHT CONCLUDE THAT
AN INJUNCTION IS UNNECESSARY.  COMPARE MITCHELL V. BLAND, 241 F.2D 808,
810, WITH CHAMBERS CONSTRUCTION CO. V. MITCHELL, SUPRA, AT 725. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  "THE DISTRICT COURTS  ...  SHALL HAVE JURISDICTION, FOR CAUSE
SHOWN, TO RESTRAIN VIOLATIONS OF SECTION 15 OF THIS TITLE  ...  ." 

PROVISIONS OF SECS. 6, 7, 11(C) AND 11(D), 29 U.S.C. SECS. 206, 207,
211(C) AND 211(D). 

FN2  THE ACTION WAS COMMENCED AGAINST LUBLIN, MCGAUGHY & ASSOCIATES,
A COPARTNERSHIP, ALFRED M. LUBLIN, JOHN B. MCGAUGHY, WILLIAM T.
MCMILLAN AND WILLIAM MARSHALL, JR., DOING BUSINESS AS LUBLIN, MCGAUGHY
& ASSOCIATES, AND EACH OF THOSE PERSONS INDIVIDUALLY.  THROUGHOUT THE
ACTION, THESE DEFENDANTS HAVE BEEN TREATED AS A SINGLE BUSINESS ENTITY
WHICH WE SHALL REFER TO HEREIN AS RESPONDENT. 

FN3  MITCHELL V. BROWN ENGINEERING CO., 224 F.2D 359 (C.A. 8TH CIR.),
CERTIORARI DENIED, 350 U.S. 875.    FN4  THE SECTION PROVIDES: 

"THE PROVISIONS OF SECTIONS 206 AND 207 OF THIS TITLE SHALL NOT APPLY
WITH RESPECT TO (1) ANY EMPLOYEE EMPLOYED IN A BONA FIDE EXECUTIVE,
ADMINISTRATIVE, PROFESSIONAL, OR LOCAL RETAILING CAPACITY, OR IN THE
CAPACITY OF OUTSIDE SALESMAN (AS SUCH TERMS ARE DEFINED AND DELIMITED
BY REGULATIONS OF THE ADMINISTRATOR)  ...  ." 

FN5  SECTION 6 PROVIDES: 

"(A)  EVERY EMPLOYER SHALL PAY TO EACH OF HIS EMPLOYEES WHO IS
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE WAGES AT
THE FOLLOWING RATES  ...  ."    SECTION 7 PROVIDES: 

"(A)  EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, NO EMPLOYER SHALL
EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE FOR A WORKWEEK LONGER THAN FORTY
HOURS, UNLESS SUCH EMPLOYEE RECEIVES COMPENSATION FOR HIS EMPLOYMENT IN
EXCESS OF THE HOURS ABOVE SPECIFIED AT A RATE NOT LESS THAN ONE AND ONE
HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED." 

FN6  SEE ALSO THE LIMITATIONS CONTAINED IN SEC. 3(J), 29 U.S.C. SEC.
203(J), CONCERNING THE COVERAGE OF PERSONS ENGAGED IN OCCUPATIONS
RELATED TO THE PRODUCTION OF GOODS FOR COMMERCE. 

FN7  SEE ALSO MITCHELL V. VOLLMER & CO., SUPRA; ALSTATE CONSTRUCTION
CO. V. DURKIN, 345 U.S. 13; WALLING V. JACKSONVILLE PAPER CO., SUPRA,
AT 567. 

FN8  SEE ALSO FITZGERALD CO. V. PEDERSEN, 324 U.S. 720; MCLEOD V.
THRELKELD, SUPRA; WALLING V. JACKSONVILLE PAPER CO., SUPRA; OVERSTREET
V. NORTH SHORE CORP., SUPRA. 

MR. JUSTICE WHITTAKER, DISSENTING. 

WHILE I AM OF THE VIEW THAT THE EVIDENCE MAY BE SUFFICIENT TO SHOW
THAT SOME OF RESPONDENTS' EMPLOYEES AT SOME TIMES - NAMELY, FIELDMEN
WHEN TRAVELING INTERSTATE IN GATHERING INFORMATION NEEDED FOR THE
PREPARATION OF ARCHITECTURAL AND ENGINEERING PLANS, AND CONSTRUCTION
SUPERVISORS WHEN ACTUALLY SUPERVISING THE REPAIRING OR REMODELING OF
STRUCTURES USED IN COMMERCE - ARE "ENGAGED IN COMMERCE," WITHIN THE
MEANING OF SEC. 7(A) OF THE FAIR LABOR STANDARDS ACT, AS AMENDED, 29
U.S.C. SEC. 207(A), I AM NEVERTHELESS PERSUADED THAT THE EVIDENCE IS
NOT SUFFICIENT, AND DOES NOT SHOW CONDUCT SUFFICIENTLY CONTINUOUS AS TO
ANY CATEGORY OF EMPLOYEES, TO JUSTIFY THE ENTRY OF A GENERAL INJUNCTION
AGAINST RESPONDENTS FROM, IN EFFECT, "VIOLATING THE LAW," THUS
REQUIRING THEM TO LIVE UNDER PAIN OF CONTEMPT CITATION FOR VIOLATION OF
A GENERAL INJUNCTIVE DECREE, WHILE OTHERS LIVE UNDER THE LAW OF THE
LAND.  I AM FURTHER PERSUADED TO THIS CONCLUSION IN THE KNOWLEDGE THAT
SUCH OF THESE EMPLOYEES AS CAN SHOW THAT THEIR PARTICULAR WORK AT A
PARTICULAR TIME RENDERED THEM "ENGAGED IN COMMERCE" HAVE A COMPLETE
LEGAL REMEDY UNDER SEC. 16(B) OF THE ACT, 29 U.S.C. SEC. 216(B), TO
RECOVER OVERTIME COMPENSATION PLUS AN ADDITIONAL EQUAL AMOUNT,
ATTORNEYS' FEES AND COSTS.  AS I READ ITS OPINION, THESE ARE THE
FACTORS THAT PERSUADED THE COURT OF APPEALS TO AFFIRM THE DISTRICT
COURT'S DENIAL OF THE PRAYED INJUNCTION, 250 F.2D 253, 260-261, AND FOR
THOSE REASONS I WOULD AFFIRM ITS JUDGMENT. 

MR. JUSTICE STEWART, DISSENTING. 

WITH THE GENERAL PRINCIPLES STATED IN THE COURT'S OPINION THERE CAN
BE NO DISPUTE.  THEIR APPLICATION TO THE FACTS OF THE PRESENT CASE,
HOWEVER, DOES NOT LEAD ME TO THE CONCLUSION REACHED BY THE COURT. 
BELIEVING THAT THE COURT OF APPEALS DID NOT ERR IN DECIDING ON WHICH
SIDE OF THE SHADOWING LINE BETWEEN SUCH DECISIONS AS MCLEOD V.
THRELKELD, 319 U.S. 491, AND WALLING V. JACKSONVILLE PAPER CO., 317
U.S. 564, THIS CASE FALLS, I WOULD AFFIRM THE JUDGMENT. 
..END :













WILLIAMS V. LEE, DBA GANADO TRADING POST 358 U.S. 217 


NO. 39.  ARGUED NOVEMBER 20, 1958 - DECIDED JANUARY 12, 1959 - 83 ARIZ.
241, 319 P.2D 998, REVERSED. 


RESPONDENT, WHO IS NOT AN INDIAN, OPERATES A GENERAL STORE IN ARIZONA
ON THE NAVAJO INDIAN RESERVATION UNDER A LICENSE REQUIRED BY FEDERAL
STATUTE.  HE BROUGHT THIS ACTION IN AN ARIZONA STATE COURT AGAINST
PETITIONERS, A NAVAJO INDIAN AND HIS WIFE WHO LIVE ON THE RESERVATION,
TO COLLECT FOR GOODS SOLD TO THEM THERE ON CREDIT.  THEY MOVED TO
DISMISS ON THE GROUND THAT JURISDICTION LAY IN THE TRIBAL COURT RATHER
THAN IN THE STATE COURT.  HELD:  THE MOTION SHOULD HAVE BEEN GRANTED,
SINCE THE EXERCISE OF STATE JURISDICTION IN THIS CASE WOULD UNDERMINE
THE AUTHORITY OF THE TRIBAL COURTS OVER RESERVATION AFFAIRS AND HENCE
WOULD INFRINGE ON THE RIGHT OF THE INDIANS TO GOVERN THEMSELVES, WHICH
RIGHT WAS RECOGNIZED BY CONGRESS IN THE TREATY OF 1868 WITH THE NAVAJOS
AND HAS NEVER BEEN TAKEN AWAY.  PP. 217-223.  215-216; ID. (1957), 253
254. 

WILLIAMS ET UX. V. LEE, DOING BUSINESS AS GANADA TRADING POST. 

CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, WHO IS NOT AN INDIAN, OPERATES A GENERAL STORE IN ARIZONA
ON THE NAVAJO INDIAN RESERVATION UNDER A LICENSE REQUIRED BY FEDERAL
STATUTE.  (FN1)  HE BROUGHT THIS ACTION IN THE SUPERIOR COURT OF
ARIZONA AGAINST PETITIONERS, A NAVAJO INDIAN AND HIS WIFE WHO LIVE ON
THE RESERVATION, TO COLLECT FOR GOODS SOLD THEM THERE ON CREDIT.  OVER
PETITIONERS' MOTION TO DISMISS ON THE GROUND THAT JURISDICTION LAY IN
THE TRIBAL COURT RATHER THAN IN THE STATE COURT, JUDGMENT WAS ENTERED
IN FAVOR OF RESPONDENT.  THE SUPREME COURT OF ARIZONA AFFIRMED, HOLDING
THAT SINCE NO ACT OF CONGRESS EXPRESSLY FORBIDS THEIR DOING SO ARIZONA
COURTS ARE FREE TO EXERCISE JURISDICTION OVER CIVIL SUITS BY NON
INDIANS AGAINST INDIANS THOUGH THE ACTION ARISES ON AN INDIAN
RESERVATION.  83 ARIZ. 241, 319 P.2D 998.  BECAUSE THIS WAS A DOUBTFUL
DETERMINATION OF THE IMPORTANT QUESTION OF STATE POWER OVER INDIAN
AFFAIRS, WE GRANTED CERTIORARI.  356 U.S. 930. 

ORIGINALLY THE INDIAN TRIBES WERE SEPARATE NATIONS WITHIN WHAT IS NOW
THE UNITED STATES.  THROUGH CONQUEST AND TREATIES THEY WERE INDUCED TO
GIVE UP COMPLETE INDEPENDENCE AND THE RIGHT TO GO TO WAR IN EXCHANGE
FOR FEDERAL PROTECTION, AID, AND GRANTS OF LAND.  WHEN THE LANDS
GRANTED LAY WITHIN STATES THESE GOVERNMENTS SOMETIMES SOUGHT TO IMPOSE
THEIR LAWS AND COURTS ON THE INDIANS.  AROUND 1830 THE GEORGIA
LEGISLATURE EXTENDED ITS LAWS TO THE CHEROKEE RESERVATION DESPITE
FEDERAL TREATIES WITH THE INDIANS WHICH SET ASIDE THIS LAND FOR THEM. 
(FN2)  THE GEORGIA STATUTES FORBADE THE CHEROKEES FROM ENACTING LAWS OR
HOLDING COURTS AND PROHIBITED OUTSIDERS FROM BEING ON THE RESERVATION
EXCEPT WITH PERMISSION OF THE STATE GOVERNOR.  THE CONSTITUTIONALITY OF
THESE LAWS WAS TESTED IN WORCESTER V. GEORGIA, 6 PET. 515, WHEN THE
STATE SOUGHT TO PUNISH A WHITE MAN, LICENSED BY THE FEDERAL GOVERNMENT
TO PRACTICE AS A MISSIONARY AMONG THE CHEROKEES, FOR HIS REFUSAL TO
LEAVE THE RESERVATION.  RENDERING ONE OF HIS MOST COURAGEOUS AND
ELOQUENT OPINIONS, CHIEF JUSTICE MARSHALL HELD THAT GEORGIA'S ASSERTION
OF POWER WAS INVALID.  "THE CHEROKEE NATION  ...  IS A DISTINCT
COMMUNITY, OCCUPYING ITS OWN TERRITORY  ...  IN WHICH THE LAWS OF
GEORGIA CAN HAVE NO FORCE, AND WHICH THE CITIZENS OF GEORGIA HAVE NO
RIGHT TO ENTER, BUT WITH THE ASSENT OF THE CHEROKEES THEMSELVES, OR IN
CONFORMITY WITH TREATIES, AND WITH THE ACTS OF CONGRESS.  THE WHOLE
INTERCOURSE BETWEEN THE UNITED STATES AND THIS NATION, IS, BY OUR
CONSTITUTION AND LAWS, VESTED IN THE GOVERNMENT OF THE UNITED STATES." 
6 PET., AT 561. 

DESPITE BITTER CRITICISM AND THE DEFIANCE OF GEORGIA WHICH REFUSED TO
OBEY THIS COURT'S MANDATE IN WORCESTER (FN3) THE BROAD PRINCIPLES OF
THAT DECISION CAME TO BE ACCEPTED AS LAW.  (FN4)  OVER THE YEARS THIS
COURT HAS MODIFIED THESE PRINCIPLES IN CASES WHERE ESSENTIAL TRIBAL
RELATIONS WERE NOT INVOLVED AND WHERE THE RIGHTS OF INDIANS WOULD NOT
BE JEOPARDIZED, BUT THE BASIC POLICY OF WORCESTER HAS REMAINED.  THUS,
SUITS BY INDIANS AGAINST OUTSIDERS IN STATE COURTS HAVE BEEN
SANCTIONED.  SEE FELIX V. PATRICK, 145 U.S. 317, 332; UNITED STATES V.
CANDELARIA, 271 U.S. 432.  SEE ALSO HARRISON V. LAVEEN, 67 ARIZ. 337,
196 P.2D 456.  AND STATE COURTS HAVE BEEN ALLOWED TO TRY NON-INDIANS
WHO COMMITTED CRIMES AGAINST EACH OTHER ON A RESERVATION.  E.G., NEW
YORK EX REL. RAY V. MARTIN, 326 U.S. 496.  BUT IF THE CRIME WAS BY OR
AGAINST AN INDIAN, TRIBAL JURISDICTION OR THAT EXPRESSLY CONFERRED ON
OTHER COURTS BY CONGRESS HAS REMAINED EXCLUSIVE.  (FN5)  DONNELLY V.
UNITED STATES, 228 U.S. 243, 269-272; WILLIAMS V. UNITED STATES, 327
U.S. 711.  ESSENTIALLY, ABSENT GOVERNING ACTS OF CONGRESS, THE QUESTION
HAS ALWAYS BEEN WHETHER THE STATE ACTION INFRINGED ON THE RIGHT OF
RESERVATION INDIANS TO MAKE THEIR OWN LAWS AND BE RULED BY THEM.  CF.
UTAH & NORTHERN RAILWAY V. FISHER, 116 U.S. 28. 

CONGRESS HAS ALSO ACTED CONSISTENTLY UPON THE ASSUMPTION THAT THE
STATES HAVE NO POWER TO REGULATE THE AFFAIRS OF INDIANS ON A
RESERVATION.  TO ASSURE ADEQUATE GOVERNMENT OF THE INDIAN TRIBES IT
ENACTED COMPREHENSIVE STATUTES IN 1834 REGULATING TRADE WITH INDIANS
AND ORGANIZING A DEPARTMENT OF INDIAN AFFAIRS.  4 STAT. 729, 735.  NOT
SATISFIED SOLELY WITH CENTRALIZED GOVERNMENT OF INDIANS, IT ENCOURAGED
TRIBAL GOVERNMENTS AND COURTS TO BECOME STRONGER AND MORE HIGHLY
ORGANIZED.  SEE, E.G., THE WHEELER-HOWARD ACT, SECS. 16, 17, 48 STAT.
987, 988, 25 U.S.C. SECS. 476, 477.  CONGRESS HAS FOLLOWED A POLICY
CALCULATED EVENTUALLY TO MAKE ALL INDIANS FULL-FLEDGED PARTICIPANTS IN
AMERICAN SOCIETY.  THIS POLICY CONTEMPLATES CRIMINAL AND CIVIL
JURISDICTION OVER INDIANS BY ANY STATE READY TO ASSUME THE BURDENS THAT
GO WITH IT AS SOON AS THE EDUCATIONAL AND ECONOMIC STATUS OF THE
INDIANS PERMITS THE CHANGE WITHOUT DISADVANTAGE TO THEM.  SEE H.R. REP.
NO. 848, 83D CONG., 1ST SESS. 3, 6, 7 (1953).  SIGNIFICANTLY, WHEN
CONGRESS HAS WISHED THE STATES TO EXERCISE THIS POWER IT HAS EXPRESSLY
GRANTED THEM THE JURISDICTION WHICH WORCESTER V. GEORGIA HAD DENIED. 
(FN6) 

NO DEPARTURE FROM THE POLICIES WHICH HAVE BEEN APPLIED TO OTHER
INDIANS IS APPARENT IN THE RELATIONSHIP BETWEEN THE UNITED STATES AND
THE NAVAJOS.  ON JUNE 1, 1868, A TREATY WAS SIGNED BETWEEN GENERAL
WILLIAM T. SHERMAN, FOR THE UNITED STATES, AND NUMEROUS CHIEFS AND
HEADMEN OF THE "NAVAJO NATION OR TRIBE OF INDIANS."  (FN7)  AT THE TIME
THIS DOCUMENT WAS SIGNED THE NAVAJOS WERE AN EXILED PEOPLE, FORCED BY
THE UNITED STATES TO LIVE CROWDED TOGETHER ON A SMALL PIECE OF LAND ON
THE PECOS RIVER IN EASTERN NEW MEXICO, SOME 300 MILES EAST OF THE AREA
THEY HAD OCCUPIED BEFORE THE COMING OF THE WHITE MAN.  IN RETURN FOR
THEIR PROMISES TO KEEP PEACE, THIS TREATY "SET APART" FOR "THEIR
PERMANENT HOME" A PORTION OF WHAT HAD BEEN THEIR NATIVE COUNTRY, AND
PROVIDED THAT NO ONE, EXCEPT UNITED STATES GOVERNMENT PERSONNEL, WAS TO
ENTER THE RESERVED AREA.  IMPLICIT IN THESE TREATY TERMS, AS IT WAS IN
THE TREATIES WITH THE CHEROKEES INVOLVED IN WORCESTER V. GEORGIA, WAS
THE UNDERSTANDING THAT THE INTERNAL AFFAIRS OF THE INDIANS REMAINED
EXCLUSIVELY WITHIN THE JURISDICTION OF WHATEVER TRIBAL GOVERNMENT
EXISTED.  SINCE THEN, CONGRESS AND THE BUREAU OF INDIAN AFFAIRS HAVE
ASSISTED IN STRENGTHENING THE NAVAJO TRIBAL GOVERNMENT AND ITS COURTS. 
SEE THE NAVAJO-HOPI REHABILITATION ACT OF 1950, SEC. 6, 64 STAT. 46, 25
U.S.C. SEC. 636; 25 CFR SECS. 11.1 THROUGH 11.87NH.  THE TRIBE ITSELF
HAS IN RECENT YEARS GREATLY IMPROVED ITS LEGAL SYSTEM THROUGH INCREASED
EXPENDITURES AND BETTER-TRAINED PERSONNEL.  TODAY THE NAVAJO COURTS OF
INDIAN OFFENSES EXERCISE BROAD CRIMINAL AND CIVIL JURISDICTION WHICH
COVERS SUITS BY OUTSIDERS AGAINST INDIAN DEFENDANTS.  (FN8)  NO FEDERAL
ACT HAS GIVEN STATE COURTS JURISDICTION OVER SUCH CONTROVERSIES.  (FN9)
IN A GENERAL STATUTE CONGRESS DID EXPRESS ITS WILLINGNESS TO HAVE ANY
STATE ASSUME JURISDICTION OVER RESERVATION INDIANS IF THE STATE
LEGISLATURE OR THE PEOPLE VOTE AFFIRMATIVELY TO ACCEPT SUCH
RESPONSIBILITY.  (FN10)  TO DATE, ARIZONA HAS NOT ACCEPTED
JURISDICTION, POSSIBLY BECAUSE THE PEOPLE OF THE STATE ANTICIPATE THAT
THE BURDENS ACCOMPANYING SUCH POWER MIGHT BE CONSIDERABLE.  (FN11) 

THERE CAN BE NO DOUBT THAT TO ALLOW THE EXERCISE OF STATE
JURISDICTION HERE WOULD UNDERMINE THE AUTHORITY OF THE TRIBAL COURTS
OVER RESERVATION AFFAIRS AND HENCE WOULD INFRINGE ON THE RIGHT OF THE
INDIANS TO GOVERN THEMSELVES.  IT IS IMMATERIAL THAT RESPONDENT IS NOT
AN INDIAN.  HE WAS ON THE RESERVATION AND THE TRANSACTION WITH AN
INDIAN TOOK PLACE THERE.  CF. DONNELLY V. UNITED STATES, SUPRA;
WILLIAMS V. UNITED STATES, SUPRA.  THE CASES IN THIS COURT HAVE
CONSISTENTLY GUARDED THE AUTHORITY OF INDIAN GOVERNMENTS OVER THEIR
RESERVATIONS.  CONGRESS RECOGNIZED THIS AUTHORITY IN THE NAVAJOS IN THE
TREATY OF 1868, AND HAS DONE SO EVER SINCE.  IF THIS POWER IS TO BE
TAKEN AWAY FROM THEM, IT IS FOR CONGRESS TO DO IT.  LONE WOLF V.
HITCHCOCK, 187 U.S. 553, 564-566.  REVERSED. 

FN1  31 STAT. 1066, AS AMENDED, 32 STAT. 1009, 25 U.S.C. SEC. 262,
PROVIDES:  "ANY PERSON DESIRING TO TRADE WITH THE INDIANS ON ANY INDIAN
RESERVATION SHALL, UPON ESTABLISHING THE FACT, TO THE SATISFACTION OF
THE COMMISSIONER OF INDIAN AFFAIRS, THAT HE IS A PROPER PERSON TO
ENGAGE IN SUCH TRADE, BE PERMITTED TO DO SO UNDER SUCH RULES AND
REGULATIONS AS THE COMMISSIONER OF INDIAN AFFAIRS MAY PRESCRIBE FOR THE
PROTECTION OF SAID INDIANS." 

FN2  THE GEORGIA LAWS ARE SET OUT EXTENSIVELY IN WORCESTER V.
GEORGIA, 6 PET. 515, 521-528.  THE PRINCIPAL TREATIES INVOLVED ARE
FOUND AT 7 STAT. 18, 39. 

FN3  FOR INTERESTING ACCOUNTS OF THIS EPISODE IN THE STRUGGLE FOR
POWER BETWEEN STATE AND FEDERAL GOVERNMENTS SEE IV BEVERIDGE, THE LIFE
OF JOHN MARSHALL, 539-552; I WARREN, THE SUPREME COURT IN UNITED STATES
HISTORY, C. 19.  SE ALSO CHEROKEE NATION V. GEORGIA, 5 PET. 1. 

FN4  SEE THE KANSAS INDIANS, 5 WALL.  737; EX PARTE CROW DOG, 109
U.S. 556; UNITED STATES V. KAGAMA, 118 U.S. 375; UNITED STATES V.
FORNESS, 125 F.2D 928; IRON CROW V. OGLALA SIOUX TRIBE, 231 F.2D 89;
BEGAY V. MILLER, 70 ARIZ. 380, 222 P.2D 624; COHEN, FEDERAL INDIAN LAW
(REVISION BY THE UNITED STATES INTERIOR DEPARTMENT 1958); 55 DECISIONS
OF THE DEPARTMENT OF THE INTERIOR 56-64. 

THE FEDERAL GOVERNMENT'S POWER OVER INDIANS IS DERIVED FROM ART. I,
SEC. 8, CL. 3, OF THE UNITED STATES CONSTITUTION, PERRIN V. UNITED
STATES, 232 U.S. 478, AND FROM THE NECESSITY OF GIVING UNIFORM
PROTECTION TO A DEPENDENT PEOPLE.  UNITED STATES V. KAGAMA, SUPRA. 

FN5  FOR EXAMPLE, CONGRESS HAS GRANTED TO THE FEDERAL COURTS
EXCLUSIVE JURISDICTION UPON INDIAN RESERVATIONS OVER 11 MAJOR CRIMES. 
AND NON-INDIANS COMMITTING CRIMES AGAINST INDIANS ARE NOW GENERALLY
TRIED IN FEDERAL COURTS.  SEE 18 U.S. C. SECS. 437-439, 1151-1163;
COHEN, OP. CIT. SUPRA, NOTE 4, AT 307-326. 

FN6  SEE, E.G., 62 STAT. 1224, 64 STAT. 845, 25 U.S.C. SECS. 232, 233
(1952)(GRANTING BROAD CIVIL AND CRIMINAL JURISDICTION TO NEW YORK); 18
U.S.C. SEC. 1162, 28 U.S.C. SEC. 1360 (GRANTING BROAD CIVIL AND
CRIMINAL JURISDICTION TO CALIFORNIA, MINNESOTA, NEBRASKA, OREGON, AND
WISCONSIN).  THE SERIES OF STATUTES GRANTING EXTENSIVE JURISDICTION
OVER OKLAHOMA INDIANS TO STATE COURTS ARE DISCUSSED IN COHEN, OP. CIT.
SUPRA, NOTE 4, AT 985-1051. 

FN7  15 STAT. 667.  IN 16 STAT. 566 (1871), CONGRESS DECLARED THAT NO
INDIAN TRIBE OR NATION WITHIN THE UNITED STATES SHOULD THEREAFTER BE
RECOGNIZED AS AN INDEPENDENT POWER WITH WHOM THE UNITED STATES COULD
EXECUTE A TREATY BUT PROVIDED THAT THIS SHOULD NOT IMPAIR THE
OBLIGATIONS OF ANY TREATY PREVIOUSLY RATIFIED.  THUS THE 1868 TREATY
WITH THE NAVAJOS SURVIVED THIS ACT. 

FN8  YOUNG, THE NAVAJO YEARBOOK (1955), 165, 201; ID. (1957), 107,
110. 

FN9  IN THE 1949 NAVAJO-HOPI REHABILITATION BILL, S. 1407, 81ST
CONG., 1ST SESS., SETTING UP A 10-YEAR PROGRAM OF CAPITAL AND OTHER
IMPROVEMENTS ON THE RESERVATION, CONGRESS PROVIDED FOR CONCURRENT
STATE, FEDERAL AND TRIBAL JURISDICTION.  PRESIDENT TRUMAN VETOED THE
BILL BECAUSE HE FELT THAT SUBJECTING THE NAVAJO AND HOPI TO STATE
JURISDICTION WAS UNDESIRABLE IN VIEW OF THEIR ILLITERACY, POVERTY AND
PRIMITIVE SOCIAL CONCEPTS.  HE WAS ALSO IMPRESSED BY THE FACT THAT THE
INDIANS VIGOROUSLY OPPOSED THE BILL.  95 CONG. REC. 14784-14785.  AFTER
THE OBJECTIONABLE FEATURES OF THE BILL WERE DELETED IT WAS PASSED AGAIN
AND BECAME LAW.  64 STAT.  44, 25 U.S.C. SECS. 631-640. 

FN10  ACT OF AUG. 15, 1953, C. 505, SECS. 6, 7, 67 STAT. 590,
PROVIDES AS FOLLOWS: "NOTWITHSTANDING THE PROVISIONS OF ANY ENABLING
ACT FOR THE ADMISSION OF A STATE, THE CONSENT OF THE UNITED STATES IS
HEREBY GIVEN TO THE PEOPLE OF ANY STATE TO AMEND, WHERE NECESSARY,
THEIR STATE CONSTITUTION OR EXISTING STATUTES, AS THE CASE MAY BE, TO
REMOVE ANY LEGAL IMPEDIMENT TO THE ASSUMPTION OF CIVIL AND CRIMINAL
JURISDICTION IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT: PROVIDED,
THAT THE PROVISIONS OF THIS ACT SHALL NOT BECOME EFFECTIVE WITH RESPECT
TO SUCH ASSUMPTION OF JURISDICTION BY ANY SUCH STATE UNTIL THE PEOPLE
THEREOF HAVE APPROPRIATELY AMENDED THEIR STATE CONSTITUTION OR STATUTES
AS THE CASE MAY BE. 

"  ...  THE CONSENT OF THE UNITED STATES IS HEREBY GIVEN TO ANY OTHER
STATE NOT HAVING JURISDICTION WITH RESPECT TO CRIMINAL OFFENSES OR
CIVIL CAUSES OF ACTION, OR WITH RESPECT TO BOTH, AS PROVIDED FOR IN
THIS ACT, TO ASSUME JURISDICTION AT SUCH TIME AND IN SUCH MANNER AS THE
PEOPLE OF THE STATE SHALL, BY AFFIRMATIVE LEGISLATIVE ACTION, OBLIGATE
AND BIND THE STATE TO ASSUMPTION THEREOF." 

ARIZONA HAS AN EXPRESS DISCLAIMER OF JURISDICTION OVER INDIAN LANDS
IN ITS ENABLING ACT, SEC. 20, 36 STAT. 569, AND IN ART. XX, FOURTH, OF
ITS CONSTITUTION.  CF. DRAPER V. UNITED STATES, 164 U.S. 240. 

FN11  SEE H.R. REP. NO. 848, 83D CONG., 1ST SESS. 3, 7 (1953);
SECRETARY OF INTERIOR, ANNUAL REPORT (1955), 247-248; ID. (1956),
..END :











TERRITORY OF ALASKA V. AMERICAN CAN COMPANY 358 U.S. 224 


NO. 40.  ARGUED DECEMBER 9, 1958 - DECIDED JANUARY 12, 1959 - 246 F.2D
493, REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS. 


IN 1949, WHILE A TERRITORY, ALASKA ENACTED A STATUTE WHICH LEVIED A
TAX AT THE RATE OF 1% ON ALL REAL AND PERSONAL PROPERTY.  IN 1953 THE
TAX STATUTE WAS REPEALED; BUT THE REPEAL WAS EXPRESSLY DECLARED NOT
APPLICABLE TO "ANY TAXES WHICH HAVE BEEN LEVIED AND ASSESSED BY ANY
MUNICIPALITY, SCHOOL OR PUBLIC UTILITY DISTRICT UNDER THE REPEALED
STATUTE OR WHICH ARE LEVIED AND ASSESSED DURING THE CURRENT FISCAL YEAR
OF SUCH MUNICIPALITY, SCHOOL OR PUBLIC UTILITY DISTRICT."  ALASKA HAS A
GENERAL LAW SAVING RIGHTS ACCRUED UNDER A STATUTE THAT IS REPEALED. 
AFTER REPEAL OF THE TAX STATUTE, ALASKA INSTITUTED SUITS TO COLLECT
TAXES WHICH HAD ACCRUED THEREUNDER AND REMAINED UNPAID.  HELD:
LIABILITY FOR SUCH TAXES SURVIVED THE REPEAL.  PP. 224-227. 

(A)  THE EXCEPTION IN THE REPEALING STATUTE APPLIES ONLY TO TAXES
PAYABLE TO A MUNICIPALITY, A SCHOOL DISTRICT OR A PUBLIC UTILITY
DISTRICT, AND IT DOES NOT INTERFERE WITH THE COLLECTION OF UNPAID TAXES
WHICH ACCRUED PRIOR TO REPEAL.  PP. 225-226. 

(B)  JUDICIAL NOTICE IS TAKEN OF THE LEGISLATIVE HISTORY OF THE
REPEALING STATUTE, INCLUDING THE ORIGINAL BILL WHICH, THOUGH NOT IN THE
JOURNALS, WAS IN THE POSSESSION OF THE SECRETARY OF STATE AND WAS
CERTIFIED BY HIM.  PP. 226-227. 

TERRITORY OF ALASKA V. AMERICAN CAN CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ALASKA, WHILE A TERRITORY, ENACTED A LAW WHICH LEVIED A TAX AT THE
RATE OF 1 PERCENT ON ALL REAL AND PERSONAL PROPERTY.  L. 1949, C. 10,
SEC. 3.  THE TAX WAS CHALLENGED IN LITIGATION WITHOUT SUCCESS.  (FN1)
SOME PAID THE TAX VOLUNTARILY; OTHERS BECAME DELINQUENT.  IN 1953 THE
TAX STATUTE WAS REPEALED.  L. 1953, C. 22.  THEREAFTER PETITIONER
INSTITUTED THE PRESENT SUITS TO COLLECT TAXES OWING FOR THE YEARS 1949
TO 1952, INCLUSIVE.  THE DISTRICT COURT GRANTED A MOTION TO DISMISS,
HOLDING THAT NO LIABILITY FOR THESE TAXES HAD SURVIVED THE REPEAL.  137
F. SUPP. 181.  THE COURT OF APPEALS AFFIRMED.  246 F.2D 493.  THE CASE
IS HERE BY A PETITION FOR WRIT OF CERTIORARI WHICH WAS GRANTED IN VIEW
OF THE FISCAL IMPORTANCE OF THE QUESTION TO ALASKA.  356 U.S. 926. 

ALASKA HAS A GENERAL LAW, SAVING RIGHTS ACCRUED UNDER A STATUTE THAT
IS REPEALED.  (FN2)  THE LOWER COURTS, HOWEVER, HELD THAT THIS CASE WAS
GOVERNED NOT BY THAT PROVISION BUT BY SEC. 2(A) OF THE REPEALING ACT
WHICH READS AS FOLLOWS: 

"SECTION 1 OF THIS ACT (FN3) SHALL NOT BE APPLICABLE TO: 

"(A)  ANY TAXES WHICH HAVE BEEN LEVIED AND ASSESSED BY ANY
MUNICIPALITY, SCHOOL OR PUBLIC UTILITY DISTRICT UNDER THE PROVISIONS OF
CHAPTER 10, SESSION LAWS OF ALASKA 1949, AS AMENDED, OR WHICH ARE
LEVIED AND ASSESSED DURING THE CURRENT FISCAL YEAR OF SUCH
MUNICIPALITY, SCHOOL OR PUBLIC UTILITY DISTRICT." 

IT WAS HELD THAT THIS SPECIFIC ENACTMENT QUALIFIES THE GENERAL REPEAL
LAW AND THAT THE PURPOSE OF THE 1953 ACT WAS TO WIPE OUT ANY AND ALL
LIABILITIES TO PAY TAXES UNDER THE REPEALED LAW THAT HAD ACCRUED PRIOR
TO THE DATE OF REPEAL.  SUPPORT FOR THAT CONCLUSION WAS FOUND IN THE
TITLE OF THE 1953 ACT WHICH INCLUDES THE WORDS "EXCEPTING FROM REPEAL
CERTAIN TAXES," NO QUALIFICATIONS WHATSOEVER BEING INDICATED. 

WE TAKE A DIFFERENT VIEW.  SECTION 2(A) OF THE 1953 ACT, AS WE READ
IT, HAS NOTHING TO DO WITH ANY TAXES OTHER THAN THOSE PAYABLE TO A
MUNICIPALITY, A SCHOOL OR PUBLIC UTILITY DISTRICT, NONE OF WHICH IS
HERE INVOLVED.  IF IT HAD DONE NO MORE THAN SAVE ALL ACCRUED TAXES IN
THOSE CATEGORIES, THE CASE WOULD BE IN QUITE A DIFFERENT POSTURE. 
MUNICIPAL, SCHOOL, OR PUBLIC UTILITY TAXES IN A MUCH BROADER WAY.  IT
SAVED FIRST, THOSE TAXES THAT HAD BEEN "LEVIED AND ASSESSED" AND
SECOND, THOSE TO BE "LEVIED AND ASSESSED DURING THE CURRENT FISCAL
YEAR."  THIS WAS TO MAKE SURE, AS THE DISSENT BELOW SAID, THAT
MUNICIPALITIES AND SCHOOL AND PUBLIC UTILITY DISTRICTS (THOUGH NOT THE
TERRITORY ITSELF) WOULD HAVE THE RIGHT TO LEVY AND COLLECT THE OLD
TAXES FOR THE CURRENT YEAR 1953, WHETHER BEFORE OR AFTER THE REPEALING
ACT HAD TAKEN EFFECT.   SO CONSTRUED, SEC.  2(A) CARVES NO EXCEPTION
FROM THE GENERAL SAVING STATUTE AND DOES NOT INTERFERE WITH THE
COLLECTION OF UNPAID TAXES WHICH ACCRUED PRIOR TO REPEAL. 

WE ARE REINFORCED IN THIS CONCLUSION BY THE LEGISLATIVE HISTORY OF
THE BILL (FN4) THAT BECAME THE REPEALING ACT, A HISTORY OF WHICH WE
TAKE JUDICIAL NOTICE.  SEE UNITED STATES V. AMERICAN TRUCKING ASSNS.,
310 U.S. 534, 547.  AND SEE WIGMORE ON EVIDENCE (3D ED. 1940) SEC.
2577.  THE BILL AS INTRODUCED "CANCELLED, REPEALED AND ABROGATED, AND
DECLARED NULL AND VOID" "ALL ACCRUED AND UNPAID TAXES" UNDER THE 1949
ACT.  THAT PROVISION WAS DELETED, HOWEVER, BY A HOUSE COMMITTEE, AND IT
NEVER BECAME PART OF THE LAW.  THE BILL PASSED THE HOUSE WITHOUT IT.
THE PRESENT SEC. 2(A) WAS ADDED IN THE SENATE; AND THE HOUSE AGREED. 
IF WE ADOPTED THE CONSTRUCTION TAKEN BELOW, WE WOULD BE READING INTO
THE ACT BY IMPLICATION WHAT THE LEGISLATURE SEEMINGLY REJECTED. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND, AS THERE ARE
OTHER QUESTIONS WHICH WERE RAISED BY THE APPEAL (246 F.2D 493, 495) BUT
NOT REACHED BY THAT COURT, THE CAUSE IS REMANDED TO IT FOR PROCEEDINGS
IN CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SEE MULLANEY V. HESS, 189 F.2D 417; HESS V. MULLANEY, 213 F.2D
635. 

FN2  ALASKA COMP. L. ANN., 1949, SEC. 19-1-1, READS AS FOLLOWS: 

"THE REPEAL OR AMENDMENT OF ANY STATUTE SHALL NOT AFFECT ANY OFFENSE
COMMITTED OR ANY ACT DONE OR RIGHT ACCRUING OR ACCRUED OR ANY ACTION OR
PROCEEDING HAD OR COMMENCED PRIOR TO SUCH REPEAL OR AMENDMENT; NOR
SHALL ANY PENALTY, FORFEITURE OR LIABILITY INCURRED UNDER SUCH STATUTE
BE RELEASED OR EXTINGUISHED, BUT THE SAME MAY BE ENFORCED, CONTINUED,
SUSTAINED, PROSECUTED AND PUNISHED UNDER THE REPEALING OR AMENDATORY
STATUTE SAVE AS LIMITED BY THE EX POST FACTO AND OTHER PROVISIONS OF
THE CONSTITUTION, IN WHICH EVENT THE SAME MAY BE ENFORCED, CONTINUED,
SUSTAINED, PROSECUTED AND PUNISHED UNDER THE FORMER LAW AS IF SUCH
REPEAL OR AMENDMENT HAD NOT BEEN MADE." 

FN3  SECTION 1 OF THE 1953 ACT PROVIDES: 

"THAT CHAPTER 10, SESSION LAWS OF ALASKA, 1949, AS AMENDED BY CHAPTER
88, SESSION LAWS OF ALASKA, 1949, BE AND IT IS HEREBY REPEALED." 

FN4  WE REFER TO THE ALASKA HOUSE AND SENATE JOURNALS AND TO THE
ORIGINAL BILL AS INTRODUCED IN THE HOUSE WHICH IS ON FILE WITH THE
SECRETARY OF ALASKA, A COPY BEING CERTIFIED BY HIM. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :












LEE V. MADIGAN 358 U.S. 228 


NO. 42.  ARGUED DECEMBER 9-10, 1958 - DECIDED JANUARY 12, 1959 - 248
F.2D 783, REVERSED. 


ARTICLE 92 OF THE ARTICLES OF WAR PROVIDED THAT "NO PERSON SHALL BE
TRIED BY COURT-MARTIAL FOR MURDER OR RAPE COMMITTED WITHIN THE
GEOGRAPHICAL LIMITS OF THE STATES OF THE UNION AND THE DISTRICT OF
COLUMBIA IN TIME OF PEACE."  PETITIONER WAS CONVICTED BY A COURT
MARTIAL OF THE CRIME OF CONSPIRACY TO COMMIT MURDER, THE OFFENSE HAVING
OCCURRED IN CALIFORNIA ON JUNE 10, 1949 - AFTER ACTUAL TERMINATION OF
HOSTILITIES IN 1945, BUT BEFORE TERMINATION OF THE WARS WITH GERMANY
AND JAPAN HAD BEEN PROCLAIMED BY THE PRESIDENT OR THE CONGRESS.  HELD:
THE OFFENSE WAS COMMITTED "IN TIME OF PEACE" WITHIN THE MEANING OF
ARTICLE 92, AND THE COURT-MARTIAL HAD NO JURISDICTION.  PP. 229-236. 

(A) THE TERM "IN TIME OF PEACE" MUST BE CONSTRUED IN THE LIGHT OF THE
PRECISE FACTS OF EACH CASE AND THE IMPACT OF THE PARTICULAR STATUTE
INVOLVED, AND IT MAY HAVE DIFFERENT MEANINGS IN DIFFERENT CONTEXTS. 
KAHN V. ANDERSON, 255 U.S. 1, AND OTHER CASES, DISTINGUISHED.  PP. 230
232. 

(B)  IN VIEW OF THE ATTITUDE OF A FREE SOCIETY TOWARD THE
JURISDICTION OF MILITARY TRIBUNALS AND OUR RELUCTANCE TO GIVE THEM
AUTHORITY TO TRY PEOPLE FOR NON-MILITARY OFFENSES, ANY GRANT TO THEM OF
POWER TO TRY PEOPLE FOR CAPITAL OFFENSES SHOULD BE CONSTRUED STRICTLY. 
PP.  232-236. 

(C)  IT CANNOT BE READILY ASSUMED THAT CONGRESS USED THE TERM "IN
TIME OF PEACE" IN ARTICLE 92 TO DEPRIVE SOLDIERS OR CIVILIANS OF THE
SAFEGUARDS GUARANTEED IN CIVIL COURTS IN CAPITAL CASES, INCLUDING THE
BENEFIT OF JURY TRIALS, FOUR YEARS AFTER ALL HOSTILITIES HAD CEASED. 
P. 236. 

LEE V. MADIGAN, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ARTICLE OF WAR 92, 10 U.S.C. (1946 ED., SUPP. IV) SEC. 1564, WHICH,
PRIOR TO THE ADOPTION OF THE UNIFORM CODE OF MILITARY JUSTICE, (FN1)
GOVERNED TRIALS FOR MURDER OR RAPE BEFORE COURTS-MARTIAL, (FN2)
CONTAINED A PROVISO "THAT NO PERSON SHALL BE TRIED BY COURT-MARTIAL FOR
MURDER OR RAPE COMMITTED WITHIN THE GEOGRAPHICAL LIMITS OF THE STATES
OF THE UNION AND THE DISTRICT OF COLUMBIA IN TIME OF PEACE." 

THE QUESTION FOR DECISION CONCERNS THE MEANING OF THE WORDS "IN TIME
OF PEACE" IN THE CONTEXT OF ARTICLE 92. 

PETITIONER, WHILE SERVING WITH THE UNITED STATES ARMY IN FRANCE, WAS
CONVICTED BY A COURT-MARTIAL, DISHONORABLY DISCHARGED, AND SENTENCED TO
PRISON FOR 20 YEARS.  HE WAS SERVING THAT SENTENCE IN THE CUSTODY OF
THE ARMY AT CAMP COOKE, CALIFORNIA, WHEN HE WAS CONVICTED BY A COURT
MARTIAL OF THE CRIME OF CONSPIRACY TO COMMIT MURDER.  THIS OFFENSE
OCCURRED ON JUNE 10, 1949, AT CAMP COOKE.  THE QUESTION IS WHETHER JUNE
10, 1949, WAS "IN TIME OF PEACE" AS THE TERM WAS USED IN THE 92D
ARTICLE.  THE QUESTION WAS RAISED BY A PETITION FOR A WRIT OF HABEAS
CORPUS CHALLENGING THE JURISDICTION OF THE COURT-MARTIAL.  BOTH THE
DISTRICT COURT (148 F. SUPP. 23) AND THE COURT OF APPEALS (248 F.2D
783) RULED AGAINST PETITIONER.  WE GRANTED CERTIORARI, 356 U.S. 911. 

THE GERMANS SURRENDERED ON MAY 8, 1945 (59 STAT. 1857), THE JAPANESE
ON SEPTEMBER 2, 1945 (59 STAT. 1733).  THE PRESIDENT ON DECEMBER 31,
1946, PROCLAIMED THE CESSATION OF HOSTILITIES, ADDING THAT "A STATE OF
WAR STILL EXISTS."  61 STAT. 1048.  IN 1947, SENATE JOINT RESOLUTION
123 WAS PASSED (61 STAT. 449) WHICH TERMINATED, INTER ALIA, SEVERAL
PROVISONS OF THE ARTICLES OF WAR (FN3) BUT DID NOT MENTION ARTICLE 92. 
THE WAR WITH GERMANY TERMINATED OCTOBER 19, 1951, BY A JOINT RESOLUTION
OF CONGRESS (65 STAT. 451) AND A PRESIDENTIAL PROCLAMATION (66 STAT.
C3).  AND ON APRIL 28, 1952, THE FORMAL DECLARATION OF PEACE AND
TERMINATION OF WAR WITH JAPAN WAS PROCLAIMED BY THE PRESIDENT (66 STAT.
C31), THAT BEING THE EFFECTIVE DATE OF THE JAPANESE PEACE TREATY. 
SINCE JUNE 10, 1949 - THE CRITICAL DATE INVOLVED HERE - PRECEDED THESE
LATTER DATES, AND SINCE NO PREVIOUS ACTION BY THE POLITICAL BRANCHES OF
OUR GOVERNMENT HAD SPECIFICALLY LIFTED ARTICLE 92 FROM THE "STATE OF
WAR" CATEGORY, IT IS ARGUED THAT WE WERE NOT THEN "IN TIME OF PEACE"
FOR THE PURPOSES OF ARTICLE 92.  THAT ARGUMENT GAINS SUPPORT FROM A
DICTUM IN KAHN V. ANDERSON, 255 U.S. 1, 9-10, THAT THE TERM "IN TIME OF
PEACE" AS USED IN ARTICLE 92 "SIGNIFIES PEACE IN THE COMPLETE SENSE,
OFFICIALLY DECLARED."  OF LIKE TENOR ARE GENERALIZED STATEMENTS THAT
THE TERMINATION OF A "STATE OF WAR" IS "A POLITICAL ACT" OF THE OTHER
BRANCHES OF GOVERNMENT, NOT THE JUDICIARY.  SEE LUDECKE V. WATKINS, 335
U.S. 160, 169.  WE DO NOT THINK THAT EITHER OF THOSE AUTHORITIES IS
DISPOSITIVE OF THE PRESENT CONTROVERSY.  A MORE PARTICULARIZED AND
DISCRIMINATING ANALYSIS MUST BE MADE.  WE DEAL WITH A TERM THAT MUST BE
CONSTRUED IN LIGHT OF THE PRECISE FACTS OF EACH CASE AND THE IMPACT OF
THE PARTICULAR STATUTE INVOLVED.  CONGRESS IN DRAFTING LAWS MAY DECIDE
THAT THE NATION MAY BE "AT WAR" FOR ONE PURPOSE, AND "AT PEACE" FOR
ANOTHER.  IT MAY USE THE SAME WORDS BROADLY IN ONE CONTEXT, NARROWLY IN
ANOTHER.  THE PROBLEM OF JUDICIAL INTERPRETATION IS TO DETERMINE
WHETHER "IN THE SENSE OF THIS LAW" PEACE HAD ARRIVED.  UNITED STATES V.
ANDERSON, 9 WALL.  56, 69.  ONLY MISCHIEF CAN RESULT IF THOSE TERMS ARE
GIVEN ONE MEANING REGARDLESS OF THE STATUTORY CONTEXT. 

IN THE KAHN CASE, THE OFFENSE WAS COMMITTED ON JULY 29, 1918, AND THE
TRIAL STARTED NOVEMBER 4, 1918 - BOTH DATES BEING BEFORE THE
ARMISTICE.  (FN4)  IT IS, THEREFORE, CLEAR THAT THE OFFENSE WAS NOT
COMMITTED "IN TIME OF PEACE."  MOREOVER, A MILITARY TRIBUNAL WHOSE
JURISDICTION OVER A CASE ATTACHES IN A TIME OF ACTUAL WAR DOES NOT LOSE
JURISDICTION BECAUSE HOSTILITIES CEASE.  ONCE A MILITARY COURT ACQUIRES
JURISDICTION THAT JURISDICTION CONTINUES UNTIL THE END OF THE TRIAL AND
THE IMPOSITION OF THE SENTENCE.  SEE CARTER V. MCCLAUGHRY, 183 U.S.
365, 383.  THE BROAD COMMENTS OF THE COURT IN THE KAHN CASE ON THE
MEANING OF THE TERM "IN TIME OF PEACE" AS USED IN ARTICLE 92 WERE,
THEREFORE, QUITE UNNECESSARY FOR THE DECISION. 

LUDECKE V. WATKINS, 335 U.S. 160, BELONGS IN A SPECIAL CATEGORY OF
CASES DEALING WITH THE POWER OF THE EXECUTIVE OR THE CONGRESS TO DEAL
WITH THE AFTERMATH OF PROBLEMS WHICH A STATE OF WAR BRINGS AND WHICH A
CESSATION OF HOSTILITIES DOES NOT NECESSARILY DISPEL.  THAT CASE
CONCERNS THE POWER OF THE PRESIDENT TO REMOVE AN ALIEN ENEMY AFTER
HOSTILITIES HAVE ENDED BUT BEFORE THE POLITICAL BRANCHES HAVE DECLARED
THE STATE OF WAR ENDED.  HAMILTON V. KENTUCKY DISTILLERIES & WAREHOUSE
CO., 251 U.S. 146, INVOLVES THE CONSTITUTIONALITY UNDER THE WAR POWER
OF A PROHIBITION LAW PASSED IN 1918 AFTER THE ARMISTICE WITH GERMANY
WAS SIGNED AND TO BE OPERATIVE "UNTIL THE CONCLUSION OF THE PRESENT WAR
AND THEREAFTER UNTIL THE TERMINATION OF DEMOBILIZATION, THE DATE OF
WHICH SHALL BE DETERMINED AND PROCLAIMED BY THE PRESIDENT OF THE UNITED
STATES."  WOODS V. MILLER CO., 333 U.S. 138, CONCERNS THE
CONSTITUTIONALITY OF CONTROL OF HOUSING RENTALS PROMULGATED AFTER
HOSTILITIES WERE ENDED AND BEFORE PEACE WAS FORMALLY DECLARED.  THESE
CASES DEAL WITH THE REACH OF THE WAR POWER, AS A SOURCE OF REGULATORY
AUTHORITY OVER NATIONAL AFFAIRS, IN THE AFTERMATH OF HOSTILITIES.  THE
EARLIER CASE OF MCELRATH V. UNITED STATES, 102 U.S. 426, IS LIKEWISE
IRRELEVANT TO OUR PROBLEM.  IT WAS A SUIT FOR BACK PAY BY AN OFFICER,
THE OUTCOME OF WHICH TURNED ON A STATUTE WHICH ALLOWED DISMISSAL OF AN
OFFICER FROM THE SERVICE "IN TIME OF PEACE" ONLY BY COURT-MARTIAL.  THE
PRESIDENT HAD MADE THE DISMISSAL; AND THE COURT HELD THAT SUCH ACTION,
BEING BEFORE AUGUST 20, 1866, WHEN THE PRESIDENTIAL PROCLAMATION
ANNOUNCED THE END OF THE REBELLION AND THE EXISTENCE OF PEACE, WAS
LAWFUL, SINCE THERE WAS EXTRINSIC EVIDENCE THAT CONGRESS DID NOT INTEND
THE STATUTE TO BE EFFECTIVE UNTIL THE DATE OF THE PROCLAMATION. 

OUR PROBLEM IS NOT CONTROLLED BY THOSE CASES.  WE DEAL WITH THE TERM
"IN TIME OF PEACE" IN THE SETTING OF A GRANT OF POWER TO MILITARY
TRIBUNALS TO TRY PEOPLE FOR CAPITAL OFFENSES.  DID CONGRESS DESIGN A
BROAD OR A NARROW GRANT OF AUTHORITY?  IS THE AUTHORITY OF A COURT
MARTIAL TO TRY A SOLDIER FOR A CIVIL CRIME, SUCH AS MURDER OR RAPE, TO
BE GENEROUSLY OR STRICTLY CONSTRUED?  CF. DUNCAN V. KAHANAMOKU, 327
U.S. 304. 

WE DO NOT WRITE ON A CLEAN SLATE.  THE ATTTUDE OF A FREE SOCIETY
TOWARD THE JURISDICTION OF MILITARY TRIBUNALS - OUR RELUCTANCE TO GIVE
THEM AUTHORITY TO TRY PEOPLE FOR NONMILITARY OFFENSES - HAS A LONG
HISTORY. 

WE REVIEWED BOTH BRITISH AND AMERICAN HISTORY, TOUCHING ON THIS
POINT, IN REID V. COVERT, 354 U.S. 1, 23-30.  WE POINTED OUT THE GREAT
ALARMS SOUNDED WHEN JAMES II AUTHORIZED THE TRIAL OF SOLDIERS FOR
NONMILITARY CRIMES AND THE AMERICAN PROTESTS THAT MOUNTED WHEN BRITISH
COURTS-MARTIAL IMPINGED ON THE DOMAIN OF CIVIL COURTS IN THIS COUNTRY. 
THE VIEWS OF BLACKSTONE ON MILITARY JURISDICTION BECAME DEEPLY IMBEDDED
IN OUR THINKING:  "THE NECESSITY OF ORDER AND DISCIPLINE IN AN ARMY IS
THE ONLY THING WHICH CAN GIVE IT COUNTENANCE; AND THEREFORE IT OUGHT
NOT TO BE PERMITTED IN TIME OF PEACE, WHEN THE KING'S COURTS ARE OPEN
FOR ALL PERSONS TO RECEIVE JUSTICE ACCORDING TO THE LAWS OF THE LAND." 
1 BLACKSTONE'S COMMENTARIES 413.  AND SEE HALE, HISTORY AND ANALYSIS OF
THE COMMON LAW OF ENGLAND (1ST ED. 1713), 40-41.  WE SPOKE IN THAT
TRADITION IN TOTH V. QUARLES, 350 U.S. 11, 22, "FREE COUNTRIES OF THE
WORLD HAVE TRIED TO RESTRICT MILITARY TRIBUNALS TO THE NARROWEST
JURISDICTION DEEMED ABSOLUTELY ESSENTIAL TO MAINTAINING DISCIPLINE
AMONG TROOPS IN ACTIVE SERVICE." 

THE POWER TO TRY SOLDIERS FOR THE CAPITAL CRIMES OF MURDER AND RAPE
WAS LONG WITHHELD.  NOT UNTIL 1863 WAS AUTHORITY GRANTED.  12 STAT.
736.  AND THEN IT WAS RESTRICTED TO TIMES OF "WAR, INSURRECTION, OR
REBELLION."  (FN5)  THE THEORY WAS THAT THE CIVIL COURTS, BEING OPEN,
WERE WHOLLY QUALIFIED TO HANDLE THESE CASES.  AS COL. WILLIAM WINTHROP
WROTE IN MILITARY LAW AND PRECEDENTS (2D ED. 1920) 667, ABOUT THIS 1863
LAW: 

"ITS MAIN OBJECT EVIDENTLY WAS TO PROVIDE FOR THE PUNISHMENT OF THESE
CRIMES IN LOCALITIES WHERE, IN CONSEQUENCE OF MILITARY OCCUPATION, OR
THE PREVALENCE OF MARTIAL LAW, THE ACTION OF THE CIVIL COURTS IS
SUSPENDED, OR THEIR AUTHORITY CAN NOT BE EXERCISED WITH THE PROMPTITUDE
AND EFFICIENCY REQUIRED BY THE EXIGENCIES OF THE PERIOD AND THE
NECESSITIES OF MILITARY GOVERNMENT." 

CIVIL COURTS WERE, INDEED, THOUGHT TO BE BETTER QUALIFIED THAN
MILITARY TRIBUNALS TO TRY NONMILITARY OFFENSES.  THEY HAVE A MORE
DEEPLY ENGRAINED JUDICIAL ATTITUDE, A MORE THOROUGH INDOCTRINATION IN
THE PROCEDURAL SAFEGUARDS NECESSARY FOR A FAIR TRIAL.  MOREOVER,
IMPORTANT CONSTITUTIONAL GUARANTEES COME INTO PLAY ONCE THE CITIZEN -
WHETHER SOLDIER OR CIVILIAN - IS CHARGED WITH A CAPITAL CRIME SUCH AS
MURDER OR RAPE.  THE MOST SIGNIFICANT OF THESE IS THE RIGHT TO TRIAL BY
JURY, ONE OF THE MOST IMPORTANT SAFEGUARDS AGAINST TYRANNY WHICH OUR
LAW HAS DESIGNED.  (FN6)  WE MUST ASSUME THAT THE CONGRESS, AS WELL AS
THE COURTS, WAS ALIVE TO THE IMPORTANCE OF THOSE CONSTITUTIONAL
GUARANTEES WHEN IT GAVE ARTICLE 92 ITS PARTICULAR PHRASING.  STATUTORY
LANGUAGE IS CONSTRUED TO CONFORM AS NEAR AS MAY BE TO TRADITIONAL
GUARANTEES THAT PROTECT THE RIGHTS OF THE CITIZEN.  SEE EX PARTE ENDO,
323 U.S. 283, 301-304; ROWOLDT V. PERFETTO, 355 U.S. 115; KENT V.
DULLES, 357 U.S. 116, 129.  WE WILL ATTRIBUTE TO CONGRESS A PURPOSE TO
GUARD JEALOUSLY AGAINST THE DILUTION OF THE LIBERTIES OF THE CITIZEN
THAT WOULD RESULT IF THE JURISDICTION OF MILITARY TRIBUNALS WERE
ENLARGED AT THE EXPENSE OF CIVIL COURTS.  GENERAL ENOCH H. CROWDER,
JUDGE ADVOCATE GENERAL, IN TESTIFYING IN FAVOR OF THE FORERUNNER OF THE
PRESENT PROVISO OF ARTICLE 92, SPOKE OF THE PROTECTION IT EXTENDED THE
OFFICER AND SOLDIER BY SECURING THEM "A TRIAL BY THEIR PEERS."  (FN7)
WE THINK THE PROVISO SHOULD BE READ GENEROUSLY TO ACHIEVE THAT END. 

WE REFUSED IN DUNCAN V. KAHANAMOKU, 327 U.S. 304, TO CONSTRUE
"MARTIAL LAW," AS USED IN AN ACT OF CONGRESS, BROADLY SO AS TO SUPPLANT
ALL CIVILIAN LAWS AND TO SUBSTITUTE MILITARY FOR JUDICIAL TRIALS OF
CIVILIANS NOT CHARGED WITH VIOLATIONS OF THE LAW OF WAR.  WE IMPUTED TO
CONGRESS AN ATTITUDE THAT WAS MORE CONSONANT WITH OUR TRADITIONS OF
CIVIL LIBERTIES.  WE APPROACH THE ANALYSIS OF THE TERM "IN TIME OF
PEACE" AS USED IN ARTICLE 92 IN THE SAME MANNER.  WHATEVER MAY HAVE
BEEN THE PLAN OF A LATER CONGRESS IN CONTINUING SOME CONTROLS LONG
AFTER HOSTILITIES CEASED, (FN8) WE CANNOT READILY ASSUME THAT THE
EARLIER CONGRESS USED "IN TIME OF PEACE" IN ARTICLE 92 TO DENY SOLDIERS
OR CIVILIANS THE BENEFIT OF JURY TRIALS FOR CAPITAL OFFENSES FOUR YEARS
AFTER ALL HOSTILITIES HAD CEASED.  TO HOLD OTHERWISE WOULD BE TO MAKE
SUBSTANTIAL RIGHTS TURN ON A FICTION.  WE WILL NOT PRESUME THAT
CONGRESS USED THE WORDS "IN TIME OF PEACE" IN THAT SENSE.  THE MEANING
ATTRIBUTED TO THEM IS AT WAR WITH COMMON SENSE, DESTRUCTIVE OF CIVIL
RIGHTS, AND UNNECESSARY FOR REALIZATION OF THE BALANCED SCHEME
PROMULGATED BY THE ARTICLES OF WAR.  WE HOLD THAT JUNE 10, 1949, WAS
"IN TIME OF PEACE" AS THOSE WORDS WERE USED IN ARTICLE 92.  THIS
CONCLUSION MAKES IT UNNECESSARY FOR US TO CONSIDER THE OTHER QUESTIONS
PRESENTED, INCLUDING THE CONSTITUTIONAL ISSUES WHICH HAVE BEEN MUCH
MOOTED.  REVERSED. 

FN1  64 STAT. 108, 10 U.S.C. (SUPP. V) SEC. 801 ET SEQ., ENACTED MAY
5, 1950.  FOR THE PRESENT PROVISIONS GOVERNING MURDER AND RAPE SEE
ARTICLES 118, 120. 

FN2  ARTICLE 92 READ AS FOLLOWS: 

"ANY PERSON SUBJECT TO MILITARY LAW FOUND GUILTY OF MURDER SHALL
SUFFER DEATH OR IMPRISONMENT FOR LIFE, AS A COURT-MARTIAL MAY DIRECT;
BUT IF FOUND GUILTY OF MURDER NOT PREMEDITATED, HE SHALL BE PUNISHED AS
A COURT-MARTIAL MAY DIRECT.  ANY PERSON SUBJECT TO MILITARY LAW WHO IS
FOUND GUILTY OF RAPE SHALL SUFFER DEATH OR SUCH OTHER PUNISHMENT AS A
COURT-MARTIAL MAY DIRECT:  PROVIDED, THAT NO PERSON SHALL BE TRIED BY
COURT-MARTIAL FOR MURDER OR RAPE COMMITTED WITHIN THE GEOGRAPHICAL
LIMITS OF THE STATES OF THE UNION AND THE DISTRICT OF COLUMBIA IN TIME
OF PEACE." 

FN3  SEE H.R. REP. NO. 2682, 79TH CONG., 2D SESS.; H.R. REP. NO. 799,
80TH CONG., 1ST SESS.; S. REP. NO. 339, 80TH CONG., 1ST SESS. 

FN4  IN GIVENS V. ZERBST, 255 U.S. 11, A COMPANION CASE TO THE KAHN
CASE, THE CRIME WAS COMMITTED ON SEPTEMBER 28, 1918, AND THE COURT
MARTIAL CONVENED ON OCTOBER 30, 1918. 

FN5  PRIOR TO THAT TIME ONLY STATE COURTS COULD TRY A SOLDIER FOR
MURDER OR RAPE.  COLEMAN V. TENNESSEE, 97 U.S. 509, 514.  AND THAT ACT
WAS CONSTRUED AS NOT GIVING THE MILITARY EXCLUSIVE JURISDICTION. 

"WITH THE KNOWN HOSTILITY OF THE AMERICAN PEOPLE TO ANY INTERFERENCE
BY THE MILITARY WITH THE REGULAR ADMINISTRATION OF JUSTICE IN THE CIVIL
COURTS, NO SUCH INTENTION SHOULD BE ASCRIBED TO CONGRESS IN THE ABSENCE
OF CLEAR AND DIRECT LANGUAGE TO THAT EFFECT."  ID.    FN6  WE SAID IN
TOTH V. QUARLES, SUPRA, PP. 17-19: 

"  ...  THERE IS A GREAT DIFFERENCE BETWEEN TRIAL BY JURY AND TRIAL
BY SELECTED MEMBERS OF THE MILITARY FORCES.  IT IS TRUE THAT MILITARY
PERSONNEL BECAUSE OF THEIR TRAINING AND EXPERIENCE MAY BE ESPECIALLY
COMPETENT TO TRY SOLDIERS FOR INFRACTIONS OF MILITARY RULES.  SUCH
TRAINING IS NO DOUBT PARTICULARLY IMPORTANT WHERE AN OFFENSE CHARGED
AGAINST A SOLDIER IS PURELY MILITARY, SUCH AS DISOBEDIENCE OF AN ORDER,
LEAVING POST, ETC.  BUT WHETHER RIGHT OR WRONG, THE PREMISE UNDERLYING
THE CONSTITUTIONAL METHOD FOR DETERMINING GUILT OR INNOCENCE IN FEDERAL
COURTS IS THAT LAYMEN ARE BETTER THAN SPECIALISTS TO PERFORM THIS
TASK.  THIS IDEA IS INHERENT IN THE INSTITUTION OF TRIAL BY JURY. 
"JURIES FAIRLY CHOSEN FROM DIFFERENT WALKS OF LIFE BRING INTO THE JURY
BOX A VARIETY OF DIFFERENT EXPERIENCES, FEELINGS, INTUITIONS AND
HABITS.  SUCH JURIES MAY REACH COMPLETELY DIFFERENT CONCLUSIONS THAN
WOULD BE REACHED BY SPECIALISTS IN ANY SINGLE FIELD, INCLUDING
SPECIALISTS IN THE MILITARY FIELD.  ON MANY OCCASIONS, FULLY KNOWN TO
THE FOUNDERS OF THIS COUNTRY, JURORS - PLAIN PEOPLE - HAVE MANFULLY
STOOD UP IN DEFENSE OF LIBERTY AGAINST THE IMPORTUNITIES OF JUDGES AND
DESPITE PREVAILING HYSTERIA AND PREJUDICES.  THE ACQUITTAL OF WILLIAM
PENN IS AN ILLUSTRIOUS EXAMPLE.  UNFORTUNATELY, INSTANCES COULD ALSO BE
CITED WHERE JURORS HAVE THEMSELVES BETRAYED THE CAUSE OF JUSTICE BY
VERDICTS BASED ON PREJUDICE OR PRESSURES.  IN SUCH CIRCUMSTANCES
INDEPENDENT TRIAL JUDGES AND INDEPENDENT APPELLATE JUDGES HAVE A MOST
IMPORTANT PLACE UNDER OUR CONSTITUTIONAL PLAN SINCE THEY HAVE POWER TO
SET ASIDE CONVICTIONS." 

FN7  SEE S. REP. NO. 130, 64TH CONG., 1ST SESS., P. 88. 

GENERAL CROWDER WAS OPPOSED TO A PROPOSAL OF THE GENERAL STAFF THAT
CAPITAL CRIMES EVEN WHEN COMMITTED IN THIS COUNTRY BE TRIED BY COURT
MARTIAL AS WELL AS BY CIVIL COURTS.  HE SAID, "WE NEVER HAVE HAD THAT
LAW, AND I DOUBT VERY MUCH WHEHTER IT IS DESIRABLE TO DIVORCE THE ARMY
TO THAT EXTENT FROM ACCOUNTABILITY IN THE CIVIL COURTS  ...  .  I THINK
THAT HERE IN THE UNITED STATES PROPER THE ARMY SHOULD BE UNDER THE SAME
ACCOUNTABILITY AS CIVILIANS FOR CAPITAL CRIMES."  ID., AT 32. 

FN8  THE METHOD EMPLOYED BY THE EXECUTIVE AND THE CONGRESS IN
TERMINATING WARTIME CONTROLS WAS DIFFERENT AT THE END OF WORLD WAR II
THAN IT WAS WHEN WORLD WAR I TERMINATED.  IN THE EARLIER WAR MOST OF
THE LEGISLATION DEPENDENT ON THE EXISTENCE OF A STATE OF WAR WAS
TERMINATED AT ONE TIME.  SEE 41 STAT. 1359, H.R. REP. NO. 111, 66TH
CONG., 3D SESS.; S. REP. NO. 706, 66TH CONG., 3D SESS. AT THE END OF
WORLD WAR II CONGRESS ACTED MORE SELECTIVELY.  SEE H.R.  REP. NO. 2682,
79TH CONG., 2D SESS.  THUS CONGRESS BY S.J. RES. 123, 80TH CONG., 1ST
SESS., DECLARED THAT, FOR THE PURPOSE OF CONSTRUING SPECIFIED STATUTES
(AMONG THEM CERTAIN ARTICLES OF WAR - BUT NOT ARTICLE 92), THE
EFFECTIVE DATE OF THE RESOLUTION SHOULD BE DEEMED THE TERMINATION DATE
OF THE STATE OF WAR.  THE FACT THAT ARTICLE 92 WAS NOT IN THAT LIST
LEAVES THE PROBLEM WHERE IT WAS AT THE TIME THE LAW WAS ENACTED.  THE
FAILURE TO REPEAL, ALTER, OR AMEND THIS LAW PLAINLY HAS NO BEARING ON
ITS ORIGINAL PURPOSE. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

THE COURT TODAY HOLDS THAT ON JUNE 10, 1949, THE DATE OF THIS CAPITAL
OFFENSE, THIS COUNTRY WAS "IN TIME OF PEACE" WITHIN THE MEANING OF
ARTICLE OF WAR 92, 10 U.S.C. (1946 ED., SUPP. IV) SEC. 1564, AND
THEREFORE THAT THE COURT-MARTIAL BEFORE WHICH PETITIONER WAS TRIED WAS
WITHOUT STATUTORY JURISDICTION TO ENTERTAIN THE PROCEEDING.  BELIEVING
THAT THE GROUND UPON WHICH THE COURT NULLIFIES PETITIONER'S CONVICTION
HAS LONG BEEN SETTLED SQUARELY TO THE CONTRARY, AND THAT A DE NOVO
EXAMINATION OF THE QUESTION ALSO REQUIRES THE CONCLUSION THAT THE
UNITED STATES, ON JUNE 10, 1949, WAS NOT "IN TIME OF PEACE" WITHIN THE
MEANING OF ARTICLE 92, I RESPECTFULLY DISSENT. 

IN KAHN V. ANDERSON, 255 U.S. 1, 10, THIS COURT UNANIMOUSLY HELD THAT
THE TERM "IN TIME OF PEACE" IN ARTICLE 92 "SIGNIFIES PEACE IN THE
COMPLETE SENSE, OFFICIALLY DECLARED."  SEE ALSO GIVENS V. ZERBST, 255
U.S. 11, 21.  THE COURT NOW DISMISSES THIS SQUARE HOLDING AS "DICTUM"
AND AS "QUITE UNNECESSARY FOR THE DECISION," POINTING OUT THAT THE
STATEMENT OF FACTS IN KAHN SHOWS THAT THE CAPITAL OFFENSE FOR WHICH
PETITIONER THERE WAS TRIED WAS COMMITTED BEFORE THE ARMISTICE WHICH
RESULTED IN THE TERMINATION OF ACTIVE HOSTILITIES IN WORLD WAR I, AND
THAT THE COURT-MARTIAL WHICH TRIED HIM WAS ALSO CONVENED BEFORE THE
ARMISTICE.  I THINK THAT KAHN CAN HARDLY BE DISMISSED SO LIGHTLY.  THE
CONCLUSION THERE AS TO THE MEANING OF "IN TIME OF PEACE" MIGHT HAVE
BEEN REGARDED AS UNNECESSARY TO DECISION ONLY HAD THE COURT, PROCEEDING
ON A THEORY ENTIRELY DIFFERENT FROM THAT WHICH IT ACTUALLY ADOPTED,
RELIED ON THE DATE OF THE OFFENSE OR OF THE BEGINNING OF TRIAL AS
DISPOSITIVE.  BUT PLAINLY THE COURT DID NOT PROCEED ON ANY SUCH BASIS. 
RATHER, IT ACCEPTED AT LEAST ARGUENDO PETITIONER'S CONTENTION THAT THE
COURT-MARTIAL WHICH HAD TRIED HIM DID NOT HAVE JURISDICTION TO CONTINUE
"IN TIME OF PEACE" EVEN A TRIAL PREVIOUSLY BEGUN.  IT IS THUS NOT SOUND
TO SAY THAT THE HOLDING THAT "PEACE" IN ARTICLE 92 "SIGNIFIES PEACE IN
THE COMPLETE SENSE, OFFICIALLY DECLARED," WAS UNNECESSARY TO THE
DECISION IN KAHN.  GIVEN THE GROUND UPON WHICH THE COURT CHOSE TO
DECIDE THE CASE IT WAS QUITE INDISPENSABLE.  THE IDEA THAT THE GROUND
ON WHICH A COURT ACTUALLY DECIDES A CASE BECOMES DICTUM BECAUSE THE
CASE MIGHT HAVE BEEN DECIDED ON ANOTHER GROUND IS NOVEL DOCTRINE TO
ME. 

I THINK THAT CONGRESS, AND THE MILITARY AUTHORITIES CHARGED WITH THE
IMPLEMENTATION AND ENFORCEMENT OF THE ARTICLES OF WAR, SHOULD BE ABLE
TO RELY ON A CONSTRUCTION GIVEN ONE OF THOSE ARTICLES BY A UNANIMOUS
DECISION OF THIS COURT.  THE CONCLUSION IN KAHN WAS NOT REACHED LIGHTLY
WITHOUT FULL CONSIDERATION, AS IS SHOWN BY THE FACT THAT NEARLY TWO
PAGES OF THE SUMMARY OF COUNSELS' ARGUMENT CONTAINED IN THE REPORT OF
THE CASE ARE DEVOTED TO A DISCUSSION OF THE QUESTION, AND ANOTHER TWO
PAGES TO THE COURT'S EXPRESSION OF THE REASONING UNDERLYING ITS
DECISION ON THE POINT.  IN 1948, 27 YEARS AFTER KAHN AND A SINGLE YEAR
BEFORE THE PROSECUTION HERE INVOLVED, CONGRESS RE-ENACTED ARTICLE 92
WITHOUT CHANGE IN THE RELEVANT LANGUAGE.  THE COURT NOW HOLDS THAT
BETWEEN 1921 AND 1949 THE MEANING OF THE STATUTE UNDERWENT AN
INEXPLICABLE CHANGE, AND THAT THE AUTHORITY UNDER THE STATUTE THEN
CONFIRMED MUST NOW BE DENIED.  I SEE NO WARRANT FOR THUS SPECULATING
ANEW AS TO THE MOTIVES OF CONGRESS IN ENACTING AND RE-ENACTING THE
PHRASE "IN TIME OF PEACE" IN ARTICLE 92.  (FN1) 

ENTIRELY APART FROM KAHN, I THINK TODAY'S DECISION IS DEMONSTRABLY
WRONG.  THIS COURT HAS CONSISTENTLY FOR NEARLY 100 YEARS RECOGNIZED, IN
MANY CONTEXTS, THAT A CESSATION OF ACTIVE HOSTILITIES DOES NOT DENOTE
THE END OF "WAR" OR THE BEGINNING OF "PEACE" AS THOSE OR SIMILAR TERMS
HAVE BEEN USED FROM TIME TO TIME BY CONGRESS IN LEGISLATION.  IN
MCELRATH V. UNITED STATES, 102 U.S. 426, THERE WAS BEFORE THE COURT A
STATUTE OF CONGRESS PROHIBITING SUMMARY DISMISSAL BY THE PRESIDENT OF
MILITARY OFFICERS "IN TIME OF PEACE."  ALTHOUGH I VENTURE TO SAY THAT
ALMOST AS MANY REASONS COULD BE CONJURED UP FOR CONSTRUING THE TERM
LOOSELY IN THAT CONTEXT AS IN THAT NOW BEFORE US, THE COURT UNANIMOUSLY
HELD THAT JULY 1866 WAS NOT "IN TIME OF PEACE" ALTHOUGH ACTIVE
HOSTILITIES BETWEEN NORTH AND SOUTH HAD LONG SINCE CEASED, AND THAT
"PEACE, IN CONTEMPLATION OF LAW" DID NOT EXIST UNTIL THE PRESIDENTIAL
PROCLAMATION OF AUGUST 20, 1866.  SEE ALSO UNITED STATES V. ANDERSON, 9
WALL.  56.  IN LUDECKE V. WATKINS, 335 U.S. 160, 168-169, THIS COURT IN
CONSTRUING A STATUTE RECOGNIZED THAT  "'THE STATE OF WAR' MAY BE
TERMINATED BY TREATY OR LEGISLATION OR PRESIDENTIAL PROCLAMATION. 
WHATEVER THE MODE, ITS TERMINATION IS A POLITICAL ACT."  SEE ALSO WOODS
V. MILLER CO., 333 U.S. 138; KNAUFF V. SHAUGHNESSY, 338 U.S. 537, BOTH
EXPRESSLY RECOGNIZING THAT THE STATE OF WAR BETWEEN THIS COUNTRY AND
THE AXIS POWERS WAS NOT TERMINATED BY EITHER THE PRESIDENTIAL
PROCLAMATION OF 1946 OR THE JOINT RESOLUTION OF JULY 1947. 

THE COURT SAYS THAT "CONGRESS IN DRAFTING LAWS MAY DECIDE THAT THE
NATION MAY BE 'AT WAR' FOR ONE PURPOSE, AND 'AT PEACE' FOR ANOTHER." 
OF COURSE IT MAY.  BUT THE COURT POINTS TO NO CASE, AND I KNOW OF NONE,
WHICH HAS CONSTRUED STATUTORY LANGUAGE SIMILAR TO THAT FOUND IN ARTICLE
92 TO MEAN ANYTHING BUT "PEACE IN THE COMPLETE SENSE, OFFICIALLY
DECLARED."  UNDER THESE CIRCUMSTANCES, AND GIVEN MCELRATH AND KAHN, THE
CONCLUSION SEEMS TO ME UNMISTAKABLE THAT CONGRESS INTENDED THAT "PEACE"
IN ARTICLE 92 MEAN WHAT WE HAVE ALWAYS, UNTIL TODAY, HELD IT MEANT IN
THIS AND OTHER CONGRESSIONAL LEGISLATION.  WHEN CONGRESS HAS WISHED TO
DEFINE "WAR" OR "PEACE" IN PARTICULAR STATUTES AS MEANING SOMETHING
ELSE, IT HAS EXPLICITLY DONE SO.  SEE, E.G., WAR BRIDES ACT, 59 STAT.
659:  "FOR THE PURPOSE OF THIS ACT, THE SECOND WORLD WAR SHALL BE
DEEMED TO HAVE COMMENCED ON DECEMBER 7, 1941, AND TO HAVE CEASED UPON
THE TERMINATION OF HOSTILITIES AS DECLARED BY THE PRESIDENT OR BY A
JOINT RESOLUTION OF CONGRESS." 

TODAY'S DECISION CASTS A CLOUD UPON THE MEANING OF ALL FEDERAL
LEGISLATION THE IMPACT OF WHICH DEPENDS UPON THE EXISTENCE OF "PEACE"
OR "WAR."  HITHERTO LEGISLATION OF THIS SORT HAS BEEN CONSTRUED
ACCORDING TO WELL-DEFINED PRINCIPLES, THE COURT LOOKING TO "TREATY OR
LEGISLATION OR PRESIDENTIAL PROCLAMATION," LUDECKE V. WATKINS, 335
U.S., AT 168, TO ASCERTAIN WHETHER A "STATE OF WAR" EXISTS.  THE COURT,
IN AN EFFORT TO MAKE A "MORE PARTICULARIZED AND DISCRIMINATING
ANALYSIS," HAS APPARENTLY JETTISONED THESE PRINCIPLES.  IT IS FAR FROM
CLEAR TO ME JUST WHAT HAS TAKEN THEIR PLACE.  (FN2) 

THE COURT DOES NOT REACH PETITIONER'S CONTENTION THAT HE COULD NOT
CONSTITUTIONALLY BE TRIED BY COURT-MARTIAL BECAUSE HE WAS NOT A MEMBER
OF THE ARMED FORCES AT THE TIME THIS OFFENSE WAS COMMITTED.  IT IS
SUFFICIENT TO SAY THAT THIS CONTENTION IS ALSO SQUARELY FORECLOSED BY
KAHN V. ANDERSON, SUPRA, AND THAT IN MY OPINION NOTHING IN TOTH V.
QUARLES, 350 U.S. 11, OR IN REID V. COVERT, 354 U.S. 1, IMPAIRS THE
AUTHORITY OF KAHN ON THIS SCORE. 

I WOULD AFFIRM. 

FN1  THE COURT'S HEAVY RELIANCE IN CONSTRUING THE STATUTE HERE
INVOLVED ON ITS ATTRIBUTION TO CONGRESS OF "A PURPOSE TO GUARD
JEALOUSLY AGAINST THE DILUTION OF THE LIBERTIES OF THE CITIZEN THAT
WOULD RESULT IF THE JURISDICTION OF MILITARY TRIBUNALS WERE ENLARGED AT
THE EXPENSE OF CIVIL COURTS" IS RENDERED SOMEWHAT SUSPECT, TO SAY THAT
LEAST, BY THE FACT THAT UNDER THE UNIFORM CODE OF MILITARY JUSTICE, 64
STAT. 108, 10 U.S.C. (SUPP. V) SEC. 801, ENACTED MAY 5, 1950, CONGRESS
HAS APPARENTLY CHOSEN TO GIVE COURTS-MARTIAL JURISDICTION OVER CAPITAL
CRIMES COMMITTED IN THIS COUNTRY IN TIME OF PEACE AS WELL AS IN TIME OF
WAR.  SEE 10 U.S.C.  (SUPP. V) SECS. 918, 920. 

FN2  THE COURT DOES NOT SAY WHEN THE "PEACE" WHICH IT FINDS TO HAVE
EXISTED IN JUNE 1949 CAME INTO BEING.  IT MAY BE NOTED THAT THE
PRESIDENTIAL PROCLAMATION OF DECEMBER 31, 1946, PROCLAIMING THE
CESSATION OF HOSTILITIES, SPECIFICALLY ANNOUNCED THAT "A STATE OF WAR
STILL EXISTS," AND THAT SENATE JOINT RESOLUTION 123, 61 STAT. 449
(EFFECTIVE JULY 25, 1947), WHICH REPEALED OR RENDERED INOPERATIVE A
SELECTED GROUP OF WARTIME MEASURES (NOT INCLUDING ARTICLE 92), WAS
OBVIOUSLY AN EXPRESSION OF A CONSCIOUS AND DELIBERATE DECISION BY
CONGRESS THAT THE TIME HAD NOT YET COME TO END THE STATE OF WAR.  IT
WAS NOT UNTIL OCTOBER 19, 1951, THAT CONGRESS, BY JOINT RESOLUTION,
DECLARED THAT "THE STATE OF WAR DECLARED TO EXIST BETWEEN THE UNITED
STATES AND THE GOVERNMENT OF GERMANY BY THE JOINT RESOLUTION OF
CONGRESS APPROVED DECEMBER 11, 1941, IS HEREBY TERMINATED," 65 STAT.
451, AND NOT UNTIL APRIL 28, 1952, THE EFFECTIVE DATE OF THE JAPANESE
PEACE TREATY, THAT PEACE WITH JAPAN WAS PROCLAIMED BY THE PRESIDENT, 66
STAT. C. 31. 
..END :















INTERNATIONAL BOXING CLUB OF NEW YORK, INC. V. UNITED STATES 358 U.S.
242 


NO. 18.  ARGUED NOVEMBER 13, 1958 - DECIDED JANUARY 12, 1959 - 150 F.
SUPP. 397, AFFIRMED. 


1.  THE GOVERNMENT'S CIVIL COMPLAINT CHARGING APPEALLANTS WITH A
COMBINATION AND CONSPIRACY IN UNREASONABLE RESTRAINT OF TRADE AND
COMMERCE AMONG THE STATES IN THE PROMOTION, BROADCASTING AND TELEVISING
OF PROFESSIONAL WORLD CHAMPIONSHIP BOXING CONTESTS, AS WELL AS A
CONSPIRACY TO MONOPOLIZE AND MONOPOLIZATION OF THE SAME, IN VIOLATION
OF SECS. 1 AND 2 OF THE SHERMAN ACT, WAS SUSTAINED BY THIS COURT AS
STATING A CAUSE OF ACTION, AND THE CASE WAS REMANDED FOR TRIAL ON THE
MERITS.  348 U.S. 236.  AFTER A TRIAL, THE DISTRICT COURT, IN AN
OPINION INCORPORATING DETAILED FINDINGS OF FACT AND CONCLUSIONS OF LAW
BASED ON THE PRINCIPLES LAID DOWN BY THIS COURT, FOUND THAT THE
ALLEGATIONS OF THE COMPLAINT HAD BEEN SUSTAINED, AND ADJUDGED THAT
APPELLANTS HAD VIOLATED SECS. 1 AND 2 OF THE SHERMAN ACT.  HELD:  THE
DISTRICT COURT'S FINDINGS ARE NOT CLEARLY ERRONEOUS, AND ITS JUDGMENT
ON THE MERITS IS AFFIRMED.  PP. 244-252. 

(A)  THE DISTRICT COURT'S FINDING THAT THE RELEVANT MARKET WAS A
PROMOTION OF CHAMPIONSHIP BOXING CONTESTS, IN CONTRAST TO ALL
PROFESSIONAL BOXING CONTESTS, WAS NOT CLEARLY ERRONEOUS AND IT IS
SUSTAINED.  PP. 249-252. 

2.  AFTER FURTHER HEARINGS ON THE NATURE AND EXTENT OF THE RELIEF
NECESSARY TO PROTECT THE PUBLIC INTEREST, THE DISTRICT COURT ENTERED A
FINAL JUDGMENT DISSOLVING THE TWO INTERNATIONAL BOXING CLUBS, DIRECTING
THE INDIVIDUAL APPEALLANTS TO DIVEST THEMSELVES OF THEIR STOCK IN
MADISON SQUARE GARDEN AND GRANTING INJUNCTIVE RELIEF DESIGNED TO OPEN
UP THE MARKET IN THE BUSINESS OF PROMOTING PROFESSIONAL WORLD
CHAMPIONSHIP BOXING MATCHES.  HELD:  THE RELIEF GRANTED WAS NOT BEYOND
THE ALLOWABLE DISCRETION OF THE DISTRICT COURT AND ITS JUDGMENT IS
AFFIRMED.  PP. 253-263. 

(A)  AT THE TIME OF THE FINAL DECREE, THE JOE LOUIS AGREEMENTS HAD
LAPSED; THE EXCLUSIVE-CONTRACT PRACTICE HAD BEEN ABANDONED AT LEAST
TEMPORARILY; THE LEASES ON YANKEE STADIUM, THE POLO GROUNDS AND ST.
NICHOLAS ARENA IN NEW YORK HAD BEEN GIVEN UP; AND THE APPELLANTS HAD NO
CONTROL OVER THE NEW HEAVYWEIGHT CHAMPION; BUT THIS COURT AGREES WITH
THE DISTRICT COURT THAT THE ADDITIONAL EVIDENCE TAKEN BY IT SHOWED THAT
APPELLANTS STILL POSSESSED ALL OF THE POWER OF MONOPOLY AND RESTRAINT. 
PP. 254-255. 

(B)  EVEN IF THE INDIVIDUAL APPEALLANTS' STOCK IN MADISON SQUARE
GARDEN WAS LAWFULLY ACQUIRED AND WAS NOT THE FRUIT OF THE CONSPIRACY,
IT HAD BEEN UTILIZED TO EFFECT THE PURPOSE OF THE CONSPIRACY AND COULD
BE SO USED AGAIN, AND THE RECORD SUPPORTS THE DISTRICT COURT'S
CONCLUSION THAT THEY SHOULD BE REQUIRED TO DIVEST THEMSELVES OF THIS
STOCK IN ORDER TO BREAK UP THE UNLAWFUL COMBINATION AND RESTORE
COMPETITION IN CHAMPIONSHIP BOXING CONTESTS - WITHOUT BEING GRANTED THE
ALTERNATIVE OPTIONS REQUESTED BY THEM.  PP. 255-259. 

(C)  SINCE THE TWO INTERNATIONAL BOXING CLUBS WERE FORMED PURSUANT TO
THE CONSPIRACY AND WERE THE MEANS USED TO EFFECTUATE IT, THE
REQUIREMENT THAT THEY BE DISSOLVED WAS JUSTIFIED.  PP. 259-261. 

(D)  THE DISTRICT COURT HAVING FOUND THAT ONE OF THE MEANS USED IN
EFFECTUATING THE CONSPIRACY WAS THE OWNERSHIP AND CONTROL OF ARENAS AND
STADIA, THE REQUIREMENT OF THE DECREE THAT MADISON SQUARE GARDEN AND
THE CHICAGO STADIUM BE RENTED TO ANY QUALIFIED PROMOTER AT A REASONABLE
RENTAL, SUBJECT TO SPECIFIED CONDITIONS, WAS JUSTIFIED.  PP. 261-262. 

(E)  PRACTICAL CONSIDERATIONS JUSTIFY THE PROHIBITION AGAINST
EXCLUSIVE CONTRACTS WITH CONTESTANTS, EVEN THOUGH THEY APPLY NOT ONLY
TO CHAMPIONSHIP BOUTS BUT TO ALL PROFESSIONAL BOXING CONTESTS, THUS
GOING BEYOND THE "RELEVANT MARKET" CONSIDERED FOR THE PURPOSES OF
DETERMINING THE SHERMAN ACT VIOLATIONS.  P. 262. 

INTERNATIONAL BOXING CLUB OF NEW YORK, INC., ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CIVIL SHERMAN ACT (FN1) CASE WAS HERE FOUR YEARS AGO ON DIRECT
APPEAL FROM A DISMISSAL BY THE DISTRICT COURT, WHICH HAD HELD THAT THE
ACT DID NOT APPLY TO THE BUSINESS OF PROFESSIONAL BOXING.  WE REVERSED,
FINDING THAT "THE COMPLAINT STATES A CAUSE OF ACTION UNDER THE ACT AND
THAT THE GOVERNMENT IS ENTITLED TO AN OPPORTUNITY TO PROVE ITS
ALLEGATIONS," AND REMANDED THE CASE FOR TRIAL ON THE MERITS.  UNITED
STATES V. INTERNATIONAL BOXING CLUB, 348 U.S. 236 (1955).  THE
COMPLAINT CHARGED THE APPELLANTS WITH A COMBINATION AND CONSPIRACY IN
UNREASONABLE RESTRAINT OF TRADE AND COMMERCE AMONG THE STATES IN THE
PROMOTION, BROADCASTING, AND TELEVISING OF PROFESSIONAL WORLD
CHAMPIONSHIP BOXING CONTESTS, AS WELL AS A CONSPIRACY TO MONOPOLIZE AND
MONOPOLIZATION OF THE SAME.  AFTER A TRIAL, THE DISTRICT COURT, IN AN
OPINION INCORPORATING DETAILED FINDINGS OF FACT AND CONCLUSIONS OF LAW
BASED ON THE PRINCIPLES LAID DOWN IN OUR EARLIER OPINION, FOUND THAT
THE ALLEGATIONS OF THE COMPLAINT HAD BEEN SUSTAINED.  150 F. SUPP.
397.  AFTER FURTHER HEARINGS ON THE NATURE AND EXTENT OF THE RELIEF
NECESSARY TO PROTECT THE PUBLIC INTEREST, THE COURT ENTERED ITS FINAL
JUDGMENT DISSOLVING TWO OF THE CORPORATE APPELLANTS, DIRECTING
DIVESTITURE OF CERTAIN STOCK OWNED BY THE INDIVIDUAL APPELLANTS AND
GRANTING INJUNCTIVE RELIEF DESIGNED TO OPEN UP THE MARKET IN THE
BUSINESS OF PROMOTING PROFESSIONAL WORLD CHAMPIONSHIP BOXING MATCHES. 

THE APPELLANTS, WHILE NOT ATTACKING ANY SPECIFIC FINDING AS CLEARLY
ERRONEOUS, CLAIM THAT THE PROOF DID NOT SHOW THAT THEY VIOLATED EITHER
STRONGEST BLOWS AT THE DISTRICT COURT'S DEFINITION OF THE RELEVANT
MARKET.  OUT OF THE ENTIRE FIELD OF PROFESSIONAL BOXING, THE DISTRICT
COURT CARVED A MARKET IN CHAMPIONSHIP CONTESTS ALONE, HOLDING IT TO BE
THE RELEVANT MARKET AT WHICH THE CONSPIRACY WAS AIMED.  IN THE
ALTERNATIVE, APPELLANTS INSIST THAT THE RELIEF GRANTED THE GOVERNMENT
WAS "UNNECESSARY PUNITIVE," EVEN IF LIABILITY IS ASSUMED.  ON A DIRECT
APPEAL TO THIS COURT WE NOTED PROBABLE JURISDICTION, 356 U.S. 910
(1958).  WE HAVE CONCLUDED THAT THE FINDINGS OF THE DISTRICT COURT ARE
NOT CLEARLY ERRONEOUS AND THAT IN VIEW OF OUR FORMER HOLDING ON THE
MERITS WAS PROPERLY ENTERED.  AS TO THE RELIEF GRANTED WE FIND THAT THE
COURT DID NOT EXCEED THE LIMITS OF ALLOWABLE DISCRETION IN FRAMING A
DECREE "THAT WILL, SO FAR AS PRACTICABLE, CURE THE ILL EFFECTS OF THE
ILLEGAL CONDUCT, AND ASSURE THE PUBLIC FREEDOM FROM ITS CONTINUANCE." 
UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 88 (1950). 

OUR PREVIOUS DECISION HEREIN HAVING DECIDED THAT THE PROMOTION OF
PROFESSIONAL CHAMPIONSHIP BOXING CONTESTS ON AN INTERSTATE BASIS
CONSTITUTED TRADE AND COMMERCE AMONG THE STATES, WITHIN THE MEANING OF
THE SHERMAN ACT, THERE IS NO CONTEST HERE EITHER ON THE FINDINGS OR THE
LAW ON THAT POINT.  SINCE ON THAT APPEAL WE DISCUSSED IN SOME DETAIL
THE ALLEGATIONS OF THE COMPLAINT, WHICH THE TRIAL COURT HAS NOW FOUND
AMPLY PROVEN BY THE EVIDENCE, WE SHALL ONLY SUMMARIZE THE FINDINGS
HERE. 

              THE FINDINGS. 

THE CONSPIRACY BEGAN IN JANUARY 1949, WHEN APPELLANTS NORRIS AND
WIRTZ, WHO OWNED AND CONTROLLED THE CHICAGO STADIUM, THE DETROIT
OLYMPIA ARENA AND THE ST. LOUIS ARENA, MADE AN AGREEMENT WITH JOE
LOUIS, THE THEN HEAVYWEIGHT BOXING CHAMPION OF THE WORLD.  WISHING TO
RETIRE, LOUIS AGREED TO GIVE UP HIS TITLE AFTER OBTAINING FROM EACH OF
THE FOUR LEADING CONTENDERS (FN2) EXCLUSIVE PROMOTION RIGHTS INCLUDING
RIGHTS TO RADIO, TELEVISION AND MOVIE REVENUES.  UPON SECURING THESE
EXCLUSIVE CONTRACTS LOUIS ASSIGNED THEM TO THE APPELLANT INTERNATIONAL
BOXING CLUB, ILLINOIS, WHICH WAS ORGANIZED BY NORRIS AND WIRTZ FOR THE
PURPOSE OF PROMOTING BOXING FOR THE COMBINATION IN ILLINOIS.  THEY PAID
LOUIS $150,000 CASH PLUS AN EMPLOYMENT CONTRACT AND A 20% STOCK
INTEREST IN I.B.C., ILLINOIS. 

IN MARCH 1949 NORRIS AND WIRTZ APPROACHED APPELLANT MADISON SQUARE
GARDEN, IN WHICH THEY HAD FOR MANY YEARS OWNED 50,000 SHARES OF STOCK. 
IT WAS THE "FOREMOST SPORTS ARENA IN NEW YORK CITY AND IS THE BEST
KNOWN ARENA OF ITS KIND IN THE UNITED STATES, IF NOT THE WORLD."  (FN3)
HOWEVER, ITS FACILITIES WERE TIED UP BY AN EXCLUSIVE LEASE IT HAD
GRANTED TO MIKE JACOBS' INTERESTS - THE LEADING PROFESSIONAL BOXING
PROMOTER IN THE FIELD AT THAT TIME.  NORRIS AND WIRTZ PROPOSED THAT
THEY SHOULD ALL "WORK TOGETHER NOW AND KEEP THE EVENTS FOR OUR
BUILDINGS AND NOT CREATE A COMPETITIVE SITUATION THAT WOULD BE HARMFUL
TO ALL."  IN ORDER TO EFFECTUATE THIS PROGRAM, APPELLANT MADISON SQUARE
GARDEN BOUGHT OUT MIKE JACOBS' INTERESTS, INCLUDING, IN ADDITION TO HIS
LEASE ON MADISON SQUARE GARDEN, HIS EXCLUSIVE LEASES TO YANKEE STADIUM
AND THE ST. NICHOLAS ARENA AND HIS CONTRACT WITH THE THEN WELTERWEIGHT
CHAMPION SUGAR RAY ROBINSON.  THESE CONTRACTS WERE ASSIGNED TO
INTERNATIONAL BOXING CLUB, NEW YORK, ORGANIZED FOR THE PURPOSE OF
PROMOTING BOXING FOR THE COMBINATION IN NEW YORK. 

ONCE JACOBS' INTERESTS HAD BEEN ACQUIRED, THERE REMAINED ONLY ONE
SUBSTANTIAL COMPETITOR IN THE FIELD OF PROMOTING CHAMPIONSHIP BOXING
MATCHES.  THAT WAS TOURNAMENT OF CHAMPIONS, INC., OWNED IN PART BY THE
COLUMBIA BROADCASTING SYSTEM.  IT OWNED AN EXCLUSIVE LEASE ON THE POLO
GROUNDS AS WELL AS AN EXCLUSIVE PROMOTION CONTRACT COVERING THE NEXT
TWO FIGHTS OF THE THEN MIDDLEWEIGHT CHAMPION OF THE WORLD.  IN MAY 1949
MADISON SQUARE GARDEN BOUGHT ALL OF THE STOCK OF TOURNAMENT OF
CHAMPIONS AT A COST OF $100,000 PLUS 25% OF THE NET PROFITS ON THE NEXT
TWO MIDDLEWEIGHT CHAMPIONSHIP MATCHES.  THE ASSETS THUS ACQUIRED WERE
LIKEWISE ASSIGNED TO I.B.C., NEW YORK.  BY A SIMULTANEOUS SEPARATE
AGREEMENT, COLUMBIA BROADCASTING SYSTEM AGREED FOR A FIVE-YEAR PERIOD
NOT TO INVEST IN OR PROMOTE ANY PROFESSIONAL BOXING MATCHES IN RETURN
FOR A FIRST REFUSAL RIGHT TO THE BROADCASTING OF CERTAIN BOXING MATCHES
STAGED FOR A LIKE PERIOD IN MADISON SQUARE GARDEN. 

THIS SERIES OF AGREEMENTS, CONSUMMATED WITHIN FOUR MONTHS' TIME, GAVE
APPELLANTS EXCLUSIVE CONTROL OF THE PROMOTION OF BOXING MATCHES IN
THREE CHAMPIONSHIP DIVISIONS, I.E., HEAVYWEIGHT, MIDDLEWEIGHT, AND
WELTERWEIGHT.  NOT SATISFIED WITH THIS TEMPORARY CONTROL, HOWEVER,
APPELLANTS PERPETUATED THEIR HOLD ON CHAMPIONSHIP BOUTS BY REQUIRING
EACH CONTENDER FOR THE TITLE TO GRANT TO THEM AN EXCLUSIVE PROMOTION
CONTRACT TO HIS CHAMPIONSHIP FIGHTS, INCLUDING FILM AND BROADCASTING,
FOR A PERIOD OF FROM THREE TO FIVE YEARS.  OVER THE FACILITIES FOR THE
STAGING OF CONTESTS APPELLANTS EXERCISED LIKE CONTROL, OWNING OR
MANAGING THE "KEY" ARENAS AND STADIA IN THE NATION.  (FN4) 

TIGHTENING THE ROPES AROUND THE RING THUS BUILT, NORRIS AND WIRTZ
INCREASED THEIR STOCKHOLDINGS IN MADISON SQUARE GARDEN TO WHERE THEY
CONTROLLED IT AND WERE ABLE TO "DICTATE ITS POLICIES AND BOXING
ACTIVITIES."  THIS HAS CONTINUED THEIR CONTROL OVER I.B.C., NEW YORK,
THE STOCK OF WHICH IS NOW WHOLLY OWNED BY MADISON SQUARE GARDEN.  (FN5)
THEY ARE THE SOLE STOCKHOLDERS OF CHICAGO STADIUM CORPORATION WHICH IN
TURN IS THE SOLE STOCKHOLDER OF I.B.C., ILLINOIS.  THEIR CONTROL OVER
THIS BOXING EMPIRE IS REVEALED BY THE FACT THAT NORRIS IS PRESIDENT OF
EACH OF THE FOUR TOP CORPORATIONS, I.E., MADISON SQUARE GARDEN, I.B.C.,
NEW YORK, CHICAGO STADIUM CORPORATION, AND I.B.C., ILLINOIS.  HE AND
WIRTZ ARE DIRECTORS IN ALL FOUR, WHILE I.B.C., ILLINOIS AND I.B.C., NEW
YORK, WHICH HAVE OWNED ALL OF THE PROMOTION CONTRACTS WITH THE
CONTENDERS, HAVE A JOINT BOARD OF DIRECTORS. 

THE EFFECT OF THE CONSPIRACY IS OBVIOUS.  USING THE FACILITIES OF
I.B.C., ILLINOIS, AND I.B.C., NEW YORK, APPELLANTS ENTERED INTO
EXCLUSIVE PROMOTION CONTRACTS WITH TITLE ASPIRANTS, REQUIRING EXCLUSIVE
HANDLING AGREEMENTS IN THE EVENT THE CONTENDER BECAME CHAMPION.  IN
AMASSING THEIR EMPIRE, APPELLANTS OBTAINED CONTROL OF CHAMPIONS IN
THREE DIVISIONS.  THE CHOICE GIVEN A CONTENDER THEREAFTER WAS CLEAR,
I.E., TO SIGN WITH APPELLANTS OR NOT TO FIGHT.  WITH APPELLANTS IN
CONTROL OF THE KEY ARENAS AND STADIA OF THE COUNTRY THROUGH MADISON
SQUARE GARDEN, CHICAGO STADIUM CORPORATION, AND OTHERS, AN EVENT COULD
NOT BE SUCCESSFULLY STAGED IN ANY OF THESE AREAS, THE MOST FRUITFUL IN
THE NATION, WITHOUT THEIR CONSENT.  THE EXERCISE OF THIS POWER BROUGHT
IMMEDIATE RESULTS.  FROM JUNE 1949, WHEN APPELLANTS STAGED THEIR FIRST
CHAMPIONSHIP FIGHT, UNTIL MAY 15, 1953, THE DATE OF THE AMENDED
COMPLAINT, THEY STAGED OR CONTROLLED THE PROMOTION OF 36 OF THE 44
CHAMPIONSHIP BATTLES HELD IN THIS COUNTRY, GIVING THEM APPROXIMATELY
81% OF THAT FIELD.  IN TWO OF THE CLASSIFICATIONS, HEAVYWEIGHT AND
MIDDLEWEIGHT, THE COMBINE STAGED ALL OF THE CONTESTS.  THE POWER OF THE
COMBINE TO EXCLUDE COMPETITORS IN THE CHAMPIONSHIP FIELD IS GRAPHICALLY
SHOWN BY THEIR PROMOTION OF 25 OUT OF 27 FIGHTS IN ALL DIVISIONS, A
TOTAL OF 93%, DURING THE TWO-AND-A-HALF-YEAR PERIOD ENDING WITH THE
FILING OF THE AMENDED COMPLAINT.  THIS POWER EXTENDED TO THE SALE OF
FILM AND BROADCASTING RIGHTS - MOST VALUABLE ADJUNCTS TO SUCCESSFUL
PROMOTION IN THE BUSINESS. 

APPELLANTS LAUNCH A VIGOROUS ATTACK ON THE FINDING THAT THE RELEVANT
MARKET WAS THE PROMOTION OF CHAMPIONSHIP BOXING CONTESTS IN CONTRAST TO
ALL PROFESSIONAL BOXING EVENTS.  THEY RELY PRIMARILY ON UNITED STATES
V. DU PONT & CO., 351 U.S. 377 (1956).  THAT CASE, INVOLVING AN ALLEGED
MONOPOLY OF THE MARKET IN CELLOPHANE, HELD THAT THE RELEVANT MARKET WAS
NOT CELLOPHANE ALONE BUT THE ENTIRE FIELD OF FLEXIBLE PACKAGING
MATERIALS.  IN TESTING FOR THE RELEVANT MARKET IN SHERMAN ACT CASES,
THE COURT SAID: 

"  ...  NO MORE DEFINITE RULE CAN BE DECLARED THAN THAT COMMODITIES
REASONABLY INTERCHANGEABLE BY CONSUMERS FOR THE SAME PURPOSES MAKE UP
THAT 'PART OF THE TRADE OR COMMERCE,' MONOPOLIZATION OF WHICH MAY BE
ILLEGAL."  DU PONT, SUPRA, AT 395. 

THE APPELLANTS ARGUE THAT THE "PHYSICAL IDENTITY OF THE PRODUCTS HERE
WOULD SEEM NECESSARILY TO PUT THEM IN ONE AND THE SAME MARKET."  THEY
SAY THAT ANY BOXING CONTEST, WHETHER CHAMPIONSHIP OR NOT, ALWAYS
INCLUDES ONE RING, TWO BOXERS AND ONE REFEREE, FIGHTING UNDER THE SAME
RULES BEFORE A GREATER OR LESSER NUMBER OF SPECTATORS EITHER PRESENT AT
RINGSIDE OR THROUGH THE FACILITIES OF TELEVISION, RADIO, OR MOVING
PICTURES. 

WE DO NOT FEEL THAT THIS CONCLUSION FOLLOWS.  AS WAS ALSO SAID IN DU
PONT, SUPRA, AT 404: 

"THE 'MARKET'  ...  WILL VARY WITH THE PART OF COMMERCE UNDER
CONSIDERATION.  THE TESTS ARE CONSTANT.  THAT MARKET IS COMPOSED OF
PRODUCTS THAT HAVE REASONABLE INTERCHANGEABILITY FOR THE PURPOSES FOR
WHICH THEY ARE PRODUCED - PRICE, USE AND QUALITIES CONSIDERED." 

WITH THIS IN MIND, THE LOWER COURT IN THE INSTANT CASE FOUND THAT
THERE EXISTS A "SEPARATE, IDENTIFIABLE MARKET" FOR CHAMPIONSHIP BOXING
CONTESTS.  THIS GENERAL FINDING IS SUPPORTED BY DETAILED FINDINGS TO
THE EFFECT THAT THE AVERAGE REVENUE FROM ALL SOURCES FOR APPELLANTS'
CHAMPIONSHIP BOUTS WAS $154,000, COMPARED TO $40,000 FOR THEIR
NONCHAMPIONSHIP PROGRAMS; THAT TELEVISION RIGHTS TO ONE CHAMPIONSHIP
FIGHT BROUGHT $100,000, IN CONTRAST TO $45,000 FOR A NONTITLE FIGHT
SEVEN MONTHS LATER BETWEEN THE SAME TWO FIGHTERS; THAT THE AVERAGE
"NIELSEN" RATINGS (FN6) OVER A TWO-AND-ONE-HALF-YEAR PERIOD WERE 74.9%
FOR APPELLANTS' CHAMPIONSHIP CONTESTS, AND 57.7% FOR THEIR
NONCHAMPIONSHIP PROGRAMS (REFLECTING A DIFFERENCE OF SEVERAL MILLION
VIEWERS BETWEEN THE TWO TYPES OF FIGHTS); THAT ALTHOUGH THE REVENUES
FROM MOVIE RIGHTS FOR SIX OF APPELLANTS' CHAMPIONSHIP BOUTS TOTALED
OVER $600,000, NO FULL-LENGTH MOTION PICTURE RIGHTS WERE SOLD FOR A
NONCHAMPIONSHIP CONTEST; AND THAT SPECTATORS PAY "SUBSTANTIALLY MORE"
FOR TICKETS TO CHAMPIONSHIP FIGHTS THAN FOR NONTITLE FIGHTS.  IN
ADDITION, NUMEROUS REPRESENTATIVES OF THE BROADCASTING, MOTION PICTURE
AND ADVERTISING INDUSTRIES TESTIFIED TO THE GENERAL EFFECT THAT A
"PARTICULAR AND SPECIAL DEMAND EXISTS AMONG RADIO BROADCASTING AND
TELECASTING AND MOTION PICTURE COMPANIES FOR THE RIGHTS TO BROADCAST
AND TELECAST AND MAKE AND DISTRIBUTE FILMS OF CHAMPIONSHIP CONTESTS IN
CONTRADISTINCTION TO SIMILAR RIGHTS TO NON-CHAMPIONSHIP CONTESTS." 
(FN7) 

IN VIEW OF THESE FINDINGS, WE CANNOT SAY THAT THE LOWER COURT WAS
"CLEARLY ERRONEOUS" IN CONCLUDING THAT NONCHAMPIONSHIP FIGHTS ARE NOT
"REASONABLY INTERCHANGEABLE FOR THE SAME PURPOSE" AS CHAMPIONSHIP
CONTESTS.  A DETERMINATION OF THE "PART OF THE TRADE OR COMMERCE"
ENCOMPASSED BY THE SHERMAN ACT INVOLVES DISTINCTIONS IN DEGREE AS WELL
AS DISTINCTIONS IN KIND.  ONE PRIME EXAMPLE OF THIS IS THE APPLICATION
OF THE ACT TO TRADE OR COMMERCE IN A LOCALIZED GEOGRAPHICAL AREA.  SEE,
E.G., SCHINE THEATRES V. UNITED STATES, 334 U.S. 110 (1948); UNITED
STATES V. GRIFFITH, 334 U.S. 100 (1948); CF. TIMES-PICAYUNE V. UNITED
STATES, 345 U.S. 594 (1953); UNITED STATES V. COLUMBIA STEEL CO., 334
U.S. 495 (1948).  THE CASE WHICH MOST SQUARELY GOVERNS THIS CASE IS
UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131 (1948).  THERE, THE
CHARGE INVOLVED, INTER ALIA, EXTENSIVE MOTION PICTURE THEATRE
HOLDINGS.  THE DISTRICT COURT HAD REFUSED TO ORDER A DIVESTITURE OF
SUCH HOLDINGS ON THE GROUNDS THAT NO "NATIONAL MONOPOLY" HAD BEEN
INTENDED OR OBTAINED.  THIS COURT FELT THAT SUCH A FINDING WAS NOT
DISPOSITIVE OF THE ISSUE, SAYING:    "FIRST, THERE IS NO FINDING AS TO
THE PRESENCE OR ABSENCE OF MONOPOLY ON THE PART OF THE FIVE MAJORS
(DEFENDANTS) IN THE FIRST-RUN FIELD FOR THE ENTIRE COUNTRY, IN THE
FIRST-RUN FIELD IN THE 92 LARGEST CITIES OF THE COUNTRY, OR IN THE
FIRST-RUN FIELD IN SEPARATE LOCALITIES.  YET THE FIRST-RUN FIELD, WHICH
CONSTITUTES THE CREAM OF THE EXHIBITION BUSINESS, IS THE CORE OF THE
PRESENT CASES.  SECTION 1 OF THE SHERMAN ACT OUTLAWS UNREASONABLE
RESTRAINTS IRRESPECTIVE OF THE AMOUNT OF TRADE OR COMMERCE INVOLVED
(UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 224, 225, N.
59), AND SEC. 2 CONDEMNS MONOPOLY OF 'ANY PART' OF TRADE OR COMMERCE." 
PARAMOUNT, SUPRA, AT 172-173. 

SIMILARLY, CHAMPIONSHIP BOXING IS THE "CREAM" OF THE BOXING BUSINESS,
AND, AS HAS BEEN SHOWN ABOVE, IS A SUFFICIENTLY SEPARATE PART OF THE
TRADE OR COMMERCE TO CONSTITUTE THE RELEVANT MARKET FOR SHERMAN ACT
PURPOSES.  (FN8) 

WE HAVE ALSO EXAMINED THE REMAINDER OF THIS CHARACTERISTICALLY
LENGTHY RECORD.  WHEN THE CASE WAS HERE PREVIOUSLY APPELLANTS DID NOT
DENY THAT THE ALLEGATIONS OF THE COMPLAINT STATED A CAUSE OF ACTION
AGAINST THEM, PROVIDED THEIR ACTIVITY CAME WITHIN THE MEANING OF THE
SHERMAN ACT.  WE HELD THAT THE COMPLAINT STATED A CAUSE OF ACTION.  THE
DISTRICT COURT HAS NOW FOUND THESE ALLEGATIONS TO HAVE BEEN PROVEN. 
WITH THE CASE IN THIS POSTURE, APPELLANTS HAVE AN ALMOST INSURMOUNTABLE
BURDEN.  THEY MUST SHOW THAT THE FINDINGS, OR AT LEAST THE BASIC ONES,
ARE "CLEARLY ERRONEOUS."  RULE 52(A), RULES OF CIVIL PROCEDURE.  THIS
THEY HAVE NOT BEEN ABLE TO DO.  IT FOLLOWS THAT THE DECREE ENTERED ON
THE MERITS ADJUDGING THE APPELLANTS TO HAVE VIOLATED BOTH SECS. 1 AND 2
OF THE SHERMAN ACT MUST BE AFFIRMED. 

                                  THE RELIEF. 

IN APPROACHING THE QUESTION OF RELIEF WE MUST REMEMBER THAT OUR
FUNCTION IS NOT TO SIT AS A TRIAL COURT.  BESSER MFG. CO. V. UNITED
STATES, 343 U.S. 444, 449-450 (1952); UNITED STATES V. NATIONAL LEAD
CO., 332 U.S. 319 (1947); CF. UNITED STATES V. CRESCENT AMUSEMENT CO.,
323 U.S. 173, 185 (1944).  AS WAS SAID IN INTERNATIONAL SALT CO. V.
UNITED STATES, 332 U.S. 392, 400-401 (1947): 

"THE FRAMING OF ANTITRUST DECREES SHOULD TAKE PLACE IN THE DISTRICT
RATHER THAN IN APPELLATE COURTS.  THEY ARE INVESTED WITH LARGE
DISCRETION TO MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE
PARTICULAR CASE." 

THE YARDSTICK WHICH THE TRIAL COURT SHOULD APPLY IN MONOPOLIZATION
CASES IS WELL STATED BY THE COURT IN SCHINE THEATRES V. UNITED STATES,
334 U.S. 110, 128-129 (1948).  THE DECREE SHOULD (1) PUT "AN END TO THE
COMBINATION OR CONSPIRACY WHEN THAT IS ITSELF THE VIOLATION"; (2)
DEPRIVE "THE ANTITRUST DEFENDANTS OF THE BENEFITS OF THEIR CONSPIRACY";
AND (3) "BREAK UP OR RENDER IMPOTENT THE MONOPOLY POWER WHICH VIOLATES
THE ACT." 

THE RELIEF GRANTED BY A TRIAL COURT IN AN ANTITRUST CASE AND BROUGHT
HERE ON DIRECT APPEAL, THUS BY-PASSING THE USUAL APPELLATE REVIEW, HAS
ALWAYS HAD THE MOST CAREFUL SCRUTINY OF THIS COURT.  THOUGH THE RECORDS
ARE USUALLY MOST VOLUMINOUS AND THEIR REVIEW EXCEEDINGLY BURDENSOME, WE
HAVE PAINSTAKINGLY UNDERTAKEN IT TO MAKE CERTAIN THAT JUSTICE HAS BEEN
DONE.  SEE, E.G., UNITED STATES V. PARAMOUNT PICTURES, SUPRA; SCHINE
THEATRES V. UNITED STATES, SUPRA; UNITED STATES V. NATIONAL LEAD CO.,
SUPRA.  THAT WE HAVE DONE HERE.  WE HAVE FINALLY CONCLUDED THAT THE
RELIEF GRANTED WAS NOT BEYOND THE ALLOWABLE DISCRETION OF THE DISTRICT
COURT. 

THE BOUNDS OF THE RELIEF ORDERED. 

AT THE TIME OF THE FINAL DECREE THE JOE LOUIS AGREEMENTS HAD ELAPSED;
THE EXCLUSIVE-CONTRACT PRACTICE HAD BEEN AT LEAST TEMPORARILY
ABANDONED; THE LEASES ON YANKEE STADIUM, THE POLO GROUNDS AND ST.
NICHOLAS ARENA IN NEW YORK HAD BEEN GIVEN UP AND THE APPELLANTS HAD NO
CONTROL OVER THE NEW HEAVYWEIGHT CHAMPION, FLOYD PATTERSON. 
NEVERTHELESS, THE ADDITIONAL EVIDENCE TAKEN BY THE DISTRICT COURT
SHOWED THAT THEY STILL POSSESSED ALL OF THE POWER OF MONOPOLY AND
RESTRAINT.  IN THIS WE AGREE.  THE APPELLANTS HAD EXERCISED A STRANGLE
HOLD ON THE INDUSTRY FOR A LONG PERIOD.  IT WAS EVIDENT AT THE TIME OF
THE DECREE THAT, STATISTICALLY, THEY STILL DOMINATED THE STAGING OF
CHAMPIONSHIP BOUTS AND COMPLETELY CONTROLLED THE FILMING AND
BROADCASTING OF THOSE CONTESTS.  THEY HAD GAINED THIS LEADERSHIP
THROUGH THE ELIMINATION BY PURCHASE OF ALL OF THEIR MAJOR COMPETITIORS
IN THE FIELD; BY THE CONTROL OF CONTENDING BOXERS THROUGH EXCLUSIVE
AGREEMENTS; AND BY THE STAGING OF EVENTS THROUGH THE OWNERSHIP OR LEASE
OF KEY STADIA AND ARENAS.  THIS ILLEGAL ACTIVITY GAVE APPELLANTS AN
ODOROUS MONOPOLY BACKGROUND WHICH WAS KNOWN AND STILL FEARED IN THE
BOXING WORLD.  IN ADDITION, NORRIS AND WIRTZ STILL POSSESSED THE MAJOR
TOOLS, SO WELL USED PREVIOUSLY, NECESSARY TO CONTINUE THEIR CONTROL. 
THEY OWNED OR CONTROLLED THE KEY ARENA AND STADIUM IN NEW YORK AND
CHICAGO, THE MOST LUCRATIVE COMMUNITIES IN BOXING; THEY CONTINUED TO
CONTROL ALL OF THE CHAMPIONSHIP BOUTS STAGED THERE; THEY COMMANDED THE
FILMING AND BROADCASTING OF ALL CHAMPIONSHIP FIGHTS - THE CREAM OF THE
BUSINESS - WHEREVER STAGED; AND THOUGH ON THE SURFACE THEY OWNED NO
STOCK DIRECTLY IN THE TWO I.B.C. CORPORATIONS, EACH WAS THE WHOLLY
OWNED SUBSIDIARY OF CORPORATIONS WHICH NORRIS AND WIRTZ DID CONTROL AND
MANAGE. 

IN THIS SETTING THE DISTRICT COURT ORDERED NORRIS AND WIRTZ TO DIVEST
THEMSELVES, WITHIN A FIVE-YEAR PERIOD, OF ALL STOCK WHICH THEY OWNED
"DIRECTLY OR INDIRECTLY" IN MADISON SQUARE GARDEN.  IN ADDITION, BOTH
OF THE INTERNATIONAL BOXING CLUBS, ILLINOIS AND NEW YORK, WERE ORDERED
DISSOLVED.  THE CHICAGO STADIUM AND MADISON SQUARE GARDEN WERE EACH
ENJOINED FROM STAGING MORE THAN TWO CHAMPIONSHIP BOUTS ANNUALLY.  ALL
EXCLUSIVE AGREEMENTS FOR THE PROMOTION OF BOXING EVENTS, INCLUDING
NONCHAMPIONSHIP, WERE BANNED.  MADISON SQUARE GARDEN WAS ORDERED FOR A
PERIOD OF FIVE YEARS TO LEASE ITS PREMISES WHEN AVAILABLE AT A "FAIR
AND REASONABLE" RENTAL TO ANY DULY QUALIFIED PROMOTER APPLYING IN
WRITING THEREFOR.  FAILURE TO AGREE ON TERMS WOULD REQUIRE SUBMISSION
TO THE COURTS FOR DETERMINATION.  LIKE REQUIREMENT WAS IMPOSED ON
CHICAGO STADIUM CORPORATION, PROVIDED NORRIS-AND-WIRTZ CONTROL
CONTINUED. 

THE DISTRICT JUDGE CONCLUDED THAT IT WAS NECESSARY TO INCLUDE EACH OF
THESE PROVISIONS IN THE DECREE IN ORDER TO PUT AN END TO THE
COMBINATION, DEPRIVE THE APPELLANTS OF THE BENEFIT OF THEIR CONSPIRACY
AND BREAK UP THEIR MONOPOLY POWER.  AT THE CONCLUSION OF THE FINAL
HEARING ON RELIEF HE OBSERVED THAT PRIOR TO 1949 THE NORRIS-WIRTZ GROUP
WAS IN CHICAGO WHILE THE MADISON SQUARE GARDEN ENTERPRISE WAS IN NEW
YORK.  THEY WERE "TWO SEPARATE ENTITIES," ONE PROMOTING CONTESTS IN THE
MID-WEST AND THE OTHER IN NEW YORK.  HE DECLARED THAT "IN ORDER TO
DESTROY THIS MONOPOLY WE HAVE TO RETURN THE SITUATION AS NEARLY AS
POSSIBLE TO THE ECONOMIC CONDITIONS AS THEY EXISTED IN 1949" AND,
FURTHER, "I CAN SEE NO WAY IN THIS CASE  ...  THAT A PROPER DECREE CAN
BE FORMULATED UNLESS THAT POWER THAT WIRTZ AND NORRIS HAVE IN MADISON
SQUARE GARDEN IS CURTAILED.  THEY HAVE TO GET OUT OF THE CONTROL." 

THE ORDER OF DIVESTITURE. 

APPELLANTS CONTEND THAT SINCE THE STOCK OWNED BY NORRIS AND WIRTZ WAS
NOT ACQUIRED PURSUANT TO THE CONSPIRACY, WAS NOT THE FRUIT OF ILLEGAL
ACTIVITY AND WAS NOT PROVEN TO BE THE LEVER BY WHICH MADISON SQUARE
GARDEN WAS PERSUADED TO JOIN THE CONSPIRACY, DIVESTITURE WAS BUT
PUNISHMENT RATHER THAN A NECESSARY CORRECTIVE REMEDY.  THEY FURTHER SAY
THAT THE SALE, EVEN THOUGH MADE IN THE MANNER OUTLINED IN THE DECREE,
(FN9) WOULD RESULT IN GREAT LOSS TO NORRIS AND WIRTZ.  THEY CONTEND
THAT IT WAS ARBITRARY FOR THE DISTRICT COURT NOT TO PERMIT THEM TO
EXERCISE AN OPTION, AS PROPOSED BY THEM, OF A CHOICE BETWEEN MADISON
SQUARE GARDEN AND THE CHICAGO STADIUM, BOTH OF WHICH THEY STILL
CONTROL. 

IT MAY BE THAT THE STOCK IN MADISON SQUARE GARDEN WAS NOT THE FRUIT
OF THE CONSPIRACY; BUT EVEN IF LAWFULLY ACQUIRED IT MAY BE UTILIZED AS
PART OF THE CONSPIRACY TO EFFECT ITS ENDS.  SEE UNITED STATES V.
PARAMOUNT PICTURES, SUPRA, AT 152.  MOREOVER, SINCE THE INCEPTION OF
THE CONSPIRACY NORRIS AND WIRTZ HAVE INCREASED THEIR HOLDINGS TO OVER
219,000 SHARES.  IT WAS THIS STOCK OWNERSHIP AND THEIR CONTROL OF STOCK
VOTING POWER THAT THE TRIAL COURT FOUND DICTATED TO ELECTION OF THE
OFFICERS AND DIRECTORS OF MADISON SQUARE GARDEN AND GAVE TO NORRIS AND
WIRTZ THE UNQUESTIONED CONTROL AND MANAGEMENT OF ITS ACTIVITIES. 
ALTHOUGH RELUCTANT AT FIRST TO REQUIRE A DIVESTITURE OF THIS STOCK, THE
TRIAL JUDGE ULTIMATELY BECAME CONVINCED THAT IT WAS THE SINE QUA NON OF
THE RELIEF.  DURING THE HEARING HE SAID: 

"THE GREAT EVIL I FOUND WAS THE COMBINATION THAT WIRTZ AND NORRIS
CAUSED AND CREATED BY JOINING UP WITH MADISON SQUARE GARDEN.  I REGARD
WIRTZ AND NORRIS AS ONE AND MADISON SQUARE GARDEN AS ANOTHER, A
SEPARATE ENTITY AND BUSINESS INTEREST.  THE EVIL PRIMARILY SPRUNG FROM
THEIR COMBINATION, THEIR CONCERTED EFFORTS AND ACTION.  THAT HAS TO BE
BROKEN UP." 

WHAT IS PREHAPS EQUALLY SIGNIFICANT IS THAT THROUGH THE EXERCISE OF
THIS POWER NORRIS AND WIRTZ ELECTED THE OFFICERS AND BOARD OF DIRECTORS
OF I.B.C., NEW YORK - A JOINT BOARD WITH I.B.C., ILLINOIS, WHICH THEY
ALSO CONTROLLED THROUGH THE CHICAGO STADIUM CORPORATION.  THIS JOINT
BOARD WAS THE BRIDGE OVER WHICH THE CONSPIRACY WAS MADE EFFECTIVE. 
OVER IT THE CONTROL OF THE PROMOTION OF CHAMPIONSHIP BOXING CONTESTS
WAS SECURED.  THAT THIS CONTROL REMAINED EFFECTIVE UP TO THE VERY DATE
OF THE FINAL HEARING, JUNE 24, 1957, IS SHOWN BY THE FOLLOWING
STATEMENT BY THE COURT ON THAT DATE: 

"THE UNLAWFUL COMBINATION OF THE DEFENDANTS STILL POSSESSES AND
EXERCISES ITS MONOPOLISTIC CONTROL IN THE FIELD OF CHAMPIONSHIP
CONTESTS.  IT APPEARS THAT SINCE MAY 15, 1953 THERE HAVE BEEN HELD IN
THE UNITED STATES 37 CHAMPIONSHIP CONTESTS, EXCLUDING ONE BANTAMWEIGHT
CONTEST.  THE DEFENDANTS ADMIT THAT THEY HAD PROMOTIONAL CONTROL OVER
24 OF THE 37 CHAMPIONSHIP CONTESTS WHICH WERE HELD IN CITIES OTHER THAN
NEW YORK AND CHICAGO.  BECAUSE THE DEFENDANTS ARE LICENSED BY STATE
AUTHORITIES TO PROMOTE ONLY IN NEW YORK AND ILLINOIS, THEY COULD NOT BE
THE PERSONS ACTUALLY DESIGNATED AS THE PROMOTER OF THE 13 CHAMPIONSHIP
CONTESTS, BUT ALL FIVE OF THE CHAMPIONSHIP CONTESTS WHICH ORIGINATED IN
CITIES OTHER THAN CHICAGO OR NEW YORK ON FRIDAY NIGHTS WERE TELEVISED
ON IBC'S-NEW YORK FRIDAY NIGHT TELEVISION SERIES. 

"WE FIND, TOO, THAT ALL OF THE 37 CHAMPIONSHIP CONTESTS IN THIS
PERIOD FROM MAY 15, 1953, SAVE ONLY THE FIVE OUTDOOR CONTESTS, WERE
TELEVISED ON EITHER THE DEFENDANTS' WEDNESDAY OR FRIDAY NIGHT
TELEVISION SERIES, AND THAT THE PROFITS OF THE SALE OF THE TELECASTING
RIGHTS INURED TO THE BENEFIT OF THE DEFENDANTS." 

AS THIS WAS SOME TWO AND A HALF YEARS AFTER OUR OPINION IN THE FORMER
APPEAL ON JANUARY 31, 1955, IT APPEARS THAT APPELLANTS HAD CONTINUED
EXERCISING THEIR UNLAWFUL CONTROL LONG AFTER THEY WELL KNEW THAT THIS
ACTIVITY WAS WITHIN THE COVERAGE OF THE SHERMAN ACT.  IN VIEW OF THE
FACT THAT NO DENIAL WAS MADE ON THAT APPEAL OF THE SUFFICIENCY OF THE
GOVERNMENT'S COMPLAINT IT IS REASONABLE TO ASSUME THAT APPELLANTS,
SUBSEQUENT TO OUR OPINION, KNEW THAT THEIR CONDUCT VIOLATED THE SHERMAN
ACT, OBEDIENCE TO WHICH IS SO IMPORTANT TO OUR FREE ENTERPRISE SYSTEM. 
STILL THEY CONTINUED THEIR ILLEGAL ACTIVITY.  IN FACT FROM ALL
APPEARANCES IT IS CONTINUING TO THIS DAY.  SUCH CONDUCT, IN ADDITION TO
THE INTERLOCKING NATURE OF THE OWNERSHIP AT THE TIME OF THE FINAL
DECREE, FULLY JUSTIFIED THE DISTRICT COURT'S CONCLUSION THAT THE
"DISSOLUTION OF THE COMBINATION CAN ONLY BE ACCOMPLISHED BY AN
IMMEDIATE AND COMPLETE SEVERANCE OF THE INTERLOCKING OWNERSHIP OF
NORRIS AND WIRTZ IN MADISON SQUARE GARDEN  ...  .  THERE MUST BE A
COMPLETE DIVESTITURE OF THE STOCKHOLDINGS OF NORRIS AND WIRTZ IN THE
GARDEN.  THE GOVERNMENT HAS ESTABLISHED NORRIS AND WIRTZ CONTROL THE
GARDEN CORPORATION."  MOREOVER, THIS WAS THE ONLY EFFECTIVE MEANS AT
HAND BY WHICH COMPETITION IN CHAMPIONSHIP EVENTS MIGHT BE RESTORED.  IT
WAS INTENDED TO RETURN THE PARTIES AS NEAR AS POSSIBLE TO THE STATUS
QUO EXISTING PRIOR TO THE CONSPIRACY. 

FOR THESE REASONS, WE DO NOT SEE WHY IT WAS INCUMBENT UPON THE COURT
TO GIVE NORRIS AND WIRTZ CERTAIN OPTIONS REQUESTED AT THE TIME OF THE
DECREE.  WE SHALL MENTION ONLY TWO.  THE FIRST WAS THAT THEY HAVE THE
RIGHT TO EXERCISE A CHOICE OF RETAINING EITHER MADISON SQUARE GARDEN OR
THE CHICAGO STADIUM.  BUT THIS WOULD NOT BE CONDUCIVE TO THE RE
ESTABLISHMENT OF COMPETITION BETWEEN THE TWO INTERESTS, WHICH THE
DISTRICT COURT CONSIDERED A NECESSITY.  NOR WOULD IT ELIMINATE THE
"GREAT EVIL" THE TRIAL COURT FOUND IN THE NORRIS-WIRTZ-GARDEN
COMBINATION.  ANOTHER REQUESTED OPTION WAS THAT NORRIS AND WIRTZ BE
PERMITTED TO RETAIN THEIR CONTROL OF MADISON SQUARE GARDEN AND THE
LATTER BE ENJOINED FROM PROMOTING CHAMPIONSHIP BOXING EVENTS.  BUT THIS
WOULD HAVE ELIMINATED THE WORLD'S PRINCIPAL BOXING CENTER - "THE
PREMIER SPORTS ARENA IN THE WORLD," AS APPELLANTS CHARACTERIZED IT -
FROM PROMOTING SUCH EVENTS IN COMPETITION WITH NORRIS AND WIRTZ. 

IN SHORT, THE GOVERNMENT IN ITS EFFORT TO FREE THE PROFESSIONAL
BOXING BUSINESS OF MONOPOLY AND UNREASONABLE RESTRAINTS WOULD HAVE WON
THE BATTLE BUT LOST THE WAR UNDER EITHER OF THE PROFFERED
ALTERNATIVES.  AS THIS COURT SAID IN UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173, 189-190 (1944): 

"COMMON CONTROL WAS ONE OF THE INSTRUMENTS IN BRINGING ABOUT UNITY OF
PURPOSE AND UNITY OF ACTION AND IN MAKING THE CONSPIRACY EFFECTIVE.  IF
THAT AFFILIATION CONTINUES, THERE WILL BE TEMPTING OPPORTUNITY  ...  TO
ACT IN COMBINATION  ...  .  THE PROCLIVITY IN THE PAST TO USE THAT
AFFILIATION FOR ANY UNLAWFUL END WARRANTS EFFECTIVE ASSURANCE THAT NO
SUCH OPPORTUNITY WILL BE AVAILABLE IN THE FUTURE."    THE DISSOLUTION
OF THE TWO INTERNATIONAL BOXING CLUBS. 

ADMITTEDLY THESE CORPORATIONS WERE FORMED PURSUANT TO AND WERE THE
MEANS USED TO EFFECTUATE THE CONSPIRACY.  AS THE TRIAL JUDGE SAID: 

"THESE CORPORATIONS ARE THE PROMOTIONAL ARMS OF THE DEFENDANTS,
CONCEIVED AND USED TO ENABLE DEFENDANTS TO RESTRAIN AND MONOPOLIZE
PROMOTION OF CHAMPIONSHIP BOXING CONTESTS.  THEIR ASSETS ARE OF BUT
NOMINAL VALUE EXCEPT FOR THE GOODWILL ATTACHING TO THEIR NAMES BY
VIRTUE OF THE CONSPIRACY." 

THE CONDITIONS EXISTING HERE EVEN SUBSEQUENT TO OUR FORMER OPINION
CONFIRM THE NEED OF SUCH DISSOLUTION.  BOTH CORPORATIONS CONTINUED TO
SHARE EQUALLY THE PROFITS THE COMBINATION REAPED FROM THE STAGING OF
CHAMPIONSHIP BOXING CONTESTS.  THIS ALSO INCLUDED REVENUES FROM
CHAMPIONSHIP CONTESTS PROMOTED BY OTHERS BUT TELEVISED BY THE
COMBINATION.  THEY CONTINUE EVEN NOW AS THE BRIDGE BETWEEN THE CHOICE
ARENAS NORRIS AND WIRTZ OWN OR CONTROL AND THE BOXERS WITH WHOM THEY
HAVE EXCLUSIVE PROMOTION CONTRACTS.  THROUGH INTERLOCKING OFFICERS AND
DIRECTORATES THE TWO I.B.C.'S THUS EFFECTIVELY HOLD THE COMBINATION
TOGETHER.  IT IS ANTITRUST POLICY TO DECREE DISSOLUTION "WHERE THE
CREATION OF THE COMBINATION IS ITSELF THE VIOLATION."  UNITED STATES V.
CRESCENT AMUSEMENT CO., SUPRA, AT 189, AND CASES THERE CITED.  THIS IS
ONE OF THOSE SITUATIONS WHERE THE INJUNCTIVE PROCESS AFFORDS TOO LITTLE
RELIEF TOO LATE. 

APPELLANTS ARGUE THAT THIS IS PUNITIVE; THAT THE PARENT COMPANIES,
UNDER THE DECREE, ARE LEFT FREE TO ORGANIZE NEW CORPORATIONS TO HANDLE
THEIR RESPECTIVE BOXING PROMOTIONS AND, HENCE, DISSOLUTION IS A USELESS
ACT.  THE TRIAL COURT FELT, HOWEVER, AND WE AGREE, THAT CONTINUED
OPERATION UNDER THE OLD I.B.C. CHARTERS MIGHT LEAD TO A SITUATION
NOMINIS UMBRA NOT CONDUCIVE TO THE ELIMINATION OF THE OLD ILLEGAL
PRACTICES.  NEW CORPORATIONS, IF FORMED, WOULD START OFF WITH CLEAN
SLATES FREE FROM NUMEROUS WRITTEN AND ORAL AGREEMENTS AND
UNDERSTANDINGS NOW EXISTENT AND KNOWN THROUGHOUT THE INDUSTRY.  HENCE
DISSOLUTION MIGHT WELL HAVE THE STATUTORY EFFECT OF COMPLETELY CLEARING
NEW HORIZONS THAT THE TRIAL JUDGE WAS ATTEMPTING TO CREATE IN THE
BOXING WORLD, ESPECIALLY WHEN EFFECTED IN CONJUNCTION WITH THE STOCK
DIVESTITURE PROVISION.  MOREOVER, THERE WOULD BE LITTLE INCONVENIENCE
AND NOMINAL EXPENSE EVEN IF, AS APPELLANTS CONTEND, THEY "AS A
PRACTICAL MATTER MUST FORM NEW CORPORATIONS IF THEY ARE TO PROMOTE ANY
BOXING AT ALL."  THIS WE THINK A POOR EXCUSE FOR NOT COMPLETELY
ELIMINATING, BY DISSOLUTION, THESE OLD TRAPPINGS OF MONOPOLY AND
RESTRAINT. 

THE COMPULSORY LEASING PROVISIONS. 

THE DISTRICT COURT, HAVING FOUND THAT ONE OF THE MEANS USED IN
EFFECUTATING THE CONSPIRACY WAS THE OWNERSHIP AND CONTROL OF ARENAS AND
STADIA, ENTERED A COMPULSORY LEASING PROVISION IN THE DECREE AS TO
MADISON SQUARE GARDEN AND THE CHICAGO STADIUM CORPORATION.  (FN10) 

THE APPELLANTS' MAIN CONCERN WITH THIS PROVISION OF THE DECREE IS THE
REQUIREMENT THAT IN THE EVENT THE TERMS OF A LEASE CANNOT BE AGREED
UPON THE MATTER WILL BE SUBMITTED TO THE DISTRICT COURT.   APPELLANTS
FEAR THAT THIS IS NOT ONLY AN UNDESIRABLE BUT AN IMPRACTICAL ACTIVITY
FOR A DISTRICT COURT.  BUT THEY HAVE SUGGESTED NO ALTERNATIVE TO
RELIEVE THE COURT OF THIS BURDEN.  OBVIOUSLY, SUCH A PROVISION MAY
RESULT IN SOME DISPUTES WHICH MUST BE SETTLED.  UNTIL EXPERIENCE IN THE
ENFORCEMENT OF THE PROVISION PROVES THE REFERENCE TO BE TOO BURDENSOME
WE SEE NO REASON TO DISTURB IT. IF EXPERIENCE PROVES IT UNWORKABLE THE
PARTIES, UNDER THE DECREE, MAY APPLY TO THE COURT FOR APPROPRIATE
RELIEF.  SEE LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S. 143, 156-157
(1951); INTERNATIONAL SALT CO. V. UNITED STATES, SUPRA, AT 401. 

EXCLUSIVE CONTRACTS WITH CONTESTANTS. 

APPELLANTS OBJECT TO THE PROHIBITION AGAINST EXCLUSIVE CONTRACTS
APPLYING TO ALL PROFESSIONAL BOXING CONTESTS.  THEY QUESTION THE
GOVERNMENT'S ENLARGING ITS BASE FROM CHAMPIONSHIP BOUTS TO ALL
PROFESSIONAL BOXING.  BUT HUMAN NATURE BEING WHAT IT IS THERE IS SOUND
REASON TO SAY THAT EXCLUSIVE CONTRACTS WITH BOXERS IN NONTITLE CONTESTS
WOULD SURELY AFFECT THOSE SAME BOXERS WHEN AND IF THEY ARRIVE AT THE
TITLE.  SUCH ARRANGEMENTS WOULD GIVE APPELLANTS, SO EXPERIENCED IN THE
BOXING FIELD, A DECIDED ADVANTAGE OVER THE INDEPENDENT PROMOTER.  SUCH
A PROHIBITION IS FULLY JUSTIFIED AT LEAST UNTIL THE EFFECTS OF THE
CONSPIRACY ARE FULLY DISSIPATED.  FOR THE SAME REASON WE SEE NO FAULT
IN THE FIVE-YEAR PROHIBITION AGAINST EXCLUSIVE RIGHTS TO A RETURN
BOUT. 

THE TRIAL COURT RECOGNIZED THAT THESE RESTRICTIONS WENT BEYOND THE
"RELEVANT MARKET" WHICH HAS BEEN CONSIDERED FOR PURPOSES OF DETERMINING
THE SHERMAN ACT VIOLATIONS, BUT FELT THAT "THE RELIEF HERE MUST BE
BROADER THAN THE CHAMPIONSHIP FIELD BECAUSE THE EVIL TO BE REMEDIED IS
BROADER."  THIS COURT HAS RECOGNIZED THAT SOMETIMES "RELIEF, TO BE
EFFECTIVE, MUST GO BEYOND THE NARROW LIMITS OF THE PROVEN VIOLATION." 
UNITED STATES V. UNITED STATES GYPSUM CO., SUPRA, 340 U.S., AT P. 90;
TIMKEN CO. V. UNITED STATES, 341 U.S. 593, 600 (1951).  WHEN THIS SORT
OF RELIEF IS GRANTED, WE MUST OF COURSE BE ESPECIALLY WARY LEST THE
TRIAL COURT OVERSTEP THE CORRESPONDINGLY NARROWER LIMITS OF ITS
DISCRETION, BUT, FOR THE REASONS SET OUT ABOVE, WE FEEL THAT NO SUCH
MISUSE OF THE TRIAL COURT'S POWER IS PRESENT HERE. 

WE HAVE CONSIDERED THE OTHER OBJECTIONS OF APPELLANTS TO THE DECREE
AND FIND THEM UNSUBSTANTIAL AS PRESENTLY POSED.  IN THE EVENT
EXPERIENCE PROVES THAT SOME OF THE PROVISIONS ARE SO SEVERE AS TO
REQUIRE MODIFICATION OR AMENDMENT, THE PARTIES MAY APPLY TO THE
DISTRICT COURT AS PROVIDED IN PARAGRAPH 25 OF THE DECREE.  THE JUDGMENT
SHOULD BE AFFIRMED.  IT IS SO ORDERED. 

FN1  15 U.S.C. SEC. 1 ET SEQ. 

FN2  EZZARD CHARLES, JOE WALCOTT, LEE SAVOLD, AND GUS LESNEVICH. 

FN3  THE IMPORTANCE OF MADISON SQUARE GARDEN IN THE PRESENT CONTEXT
IS SHOWN BY THE FACT THAT OF ALL THE CHAMPIONSHIP CONTESTS STAGED
DURING THE 12 YEARS IMMEDIATELY PRECEDING 1949, 45% WERE HELD IN NEW
YORK CITY, OF WHICH 75% WERE IN MADISON SQUARE GARDEN.  THE BALANCE OF
THE NEW YORK CHAMPIONSHIP BOUTS, WITH ONE EXCEPTION, WERE HELD IN
YANKEE STADIUM, THE POLO GROUNDS, OR ST. NICHOLAS ARENA. 

FN4  BETWEEN 1937 AND 1948, 50% OF ALL CHAMPIONSHIP CONTESTS WERE
STAGED IN EITHER MADISON SQUARE GARDEN, YANKEE STADIUM, THE POLO
GROUNDS, ST. NICHOLAS ARENA, CHICAGO STADIUM, DETROIT OLYMPIA ARENA, OR
THE ST. LOUIS ARENA. 

FN5  AT THE TIME THE I.B.C.'S WERE FORMED, JOE LOUIS OWNED 20% OF THE
STOCK OF EACH AND THE OTHER 80% WAS SPLIT EVENLY BETWEEN NORRIS AND
WIRTZ ON ONE HAND AND MADISON SQUARE GARDEN ON THE OTHER.  AT SOME
POINT THEREAFTER, LOUIS CEASED TO BE A STOCKHOLDER AND HIS SHARE WAS
SPLIT EVENLY BETWEEN NORRIS-WIRTZ AND MADISON SQUARE GARDEN.  AT THE
TIME OF THE FINAL DECREE, APPARENTLY AS THE RESULT OF AN EFFORT TO MAKE
A SHOWING OF SEPARATENESS OF CONTROL, THE NORRIS-WIRTZ INTERESTS OWNED
ALL OF THE STOCK IN I.B.C., ILLINOIS, AND MADISON SQUARE GARDEN OWNED
ALL OF THE STOCK IN I.B.C., NEW YORK.   THE TRIAL COURT FOUND THAT THE
TWO INTERESTS NEVERTHELESS STILL SHARED EQUALLY IN THE COMBINED PROFITS
OF BOTH I.B.C.'S. 

FN6  ACCORDING TO THE DISTRICT COURT, THE "NIELSEN AVERAGE AUDIENCE
RATING IS A PERCENTAGE WHICH PURPORTS TO SHOW THE NUMBER OF RESIDENTIAL
TELEVISION SETS THAT WERE TUNED IN TO THE PROGRAM EXPRESSED AS A
PERCENTAGE OF THE TOTAL RESIDENTIAL TELEVISION SETS, WHETHER TURNED OFF
OR ON, WHICH WERE IN AREAS INTO WHICH THE PROGRAM WAS TELECAST." 

FN7  APPROXIMATELY 25% OF THE REVENUE PRODUCED BY THE APPELLANTS'
CHAMPIONSHIP FIGHTS DURING THE PERIOD COVERED BY THE COMPLAINT WAS
DERIVED THROUGH THE SALE OF RADIO, TELEVISION AND MOTION PICTURE
RIGHTS. 

FN8  BY ANALOGY, IT BEARS THOSE SUFFICIENTLY "PECULIAR
CHARACTERISTICS" FOUND IN AUTOMOBILE FABRICS AND FINISHES SUCH AS TO
BRING THEM WITHIN THE CLAYTON ACT'S "LINE OF COMMERCE."  UNITED STATES
V. DU PONT & CO., 353 U.S. 586, 593-595 (1957). 

FN9  NORRIS AND WIRTZ WERE GIVEN FIVE YEARS TO SELL THEIR STOCK IN
MADISON SQUARE GARDEN, WHICH STOCK IS LISTED ON THE NEW YORK STOCK
EXCHANGE.  DURING THIS TIME, THE STOCK IS TO BE HELD BY TWO TRUSTEES
NAMED BY THE COURT.  IF THE STOCK IS NOT SOLD WITHIN FIVE YEARS, THE
TRUSTEES ARE ORDERED TO SELL IT WITHIN THE NEXT TWO YEARS. 

FN10  THIS PROVISION OF THE DECREE, APPLYING ONLY TO CHAMPIONSHIP
CONTESTS, ORDERED APPELLANTS TO LEASE THEIR RESPECTIVE BUILDINGS UPON
SEASONABLE WRITTEN REQUEST BY A QUALIFIED PROMOTER, IF THE PROPOSED
RENT IS REASONABLE, IF THE APPLICANT FURNISHES ADEQUATE SECURITY, AND
IF AT THE TIME OF THE APPLICATION THE BUILDING IS NEITHER ALREADY UNDER
LEASE TO ANOTHER FOR THE SPECIFIED DAY NOR IN CONFLICT AT THAT TIME
WITH "ANY WELL-ESTABLISHED EVENT" WHICH HAS BEEN REGULARLY CONDUCTED
THEREIN.  IF THE PARTIES CANNOT AGREE ON WHAT CONSTITUTES ADEQUATE
SECURITY OR A REASONABLE RENTAL, EITHER PARTY MAY APPLY TO THE COURT
FOR A DETERMINATION THEREOF. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING IN PART. 

WHILE I HAVE HERETOFORE EXPRESSED VIEWS IN FAVOR OF THE ALMOST
CONTROLLING DEFERENCE TO BE PAID TO A DISTRICT COURT'S CONSIDERED
FORMULATION OF THE PROVISIONS APPROPRIATE TO A DECREE DESIGNED TO
REMEDY ADJUDICATED VIOLATIONS OF THE ANTITRUST LAWS, THOSE VIEWS HAVE
NOT PREVAILED, SEE THE OPINIONS IN UNITED STATES V. PARAMOUNT PICTURES,
334 U.S. 131, AND THIS COURT HAS FELT FREE TO MODIFY AND ELIMINATE
PROVISIONS OF AN ANTITRUST DECREE, PARTICULARLY WHEN A SINGLE JUDGE HAS
IMPOSED AN UNCONVENTIONAL AND DRASTIC REMEDY.  THE MAIN ISSUE DEALT
WITH IN MR. JUSTICE HARLAN'S DISSENT, WHILE A NARROW ONE, IS, IN MY
VIEW, IMPORTANT.  WHILE DIVESTITURE HAS BEEN DECREED BY THE DISTRICT
JUDGE, THE MANDATORY DISPOSITION OF THE STOCK HAS BEEN DELAYED FOR FIVE
YEARS, AND THE STOCK PLACED IN TRUSTEESHIP.  DURING THIS FIVE-YEAR
PERIOD A SERIES OF DETAILED CONTROLS HAVE BEEN IMPOSED, UNDER THE
SUPERVISION OF THE DISTRICT COURT, IN ORDER TO PREVENT APPELLANTS
NORRIS AND WIRTZ FROM EXERCISING THE POWER THEIR STOCK OWNERSHIP HAS
GIVEN THEM OVER THE OPERATIONS OF MADISON SQUARE GARDEN.  THE OWNERSHIP
ITSELF HAS BEEN STERILIZED.  I THINK IT NOT AN UNREASONABLE FORECAST
THAT, EVEN WERE WE TO POSTPONE FOR FIVE YEARS THE DECISION WHETHER TO
ORDER THE DIVESTITURE OR CONTINUE THE TRUSTEESHIP, APPELLANTS NORRIS
AND WIRTZ WOULD NOT FIND IT PROFITABLE TO CONTINUE THEIR STERILIZED
OWNERSHIP OF THE GARDEN STOCK.  HOWEVER, THERE IS NO COMPELLING REASON
TO ORDER THEM TO DO WHAT SOUND BUSINESS JUDGMENT MAY COMPEL.  ONE HAS
THE RIGHT TO ASSUME THAT, IN VIEW OF THIS COURT'S UNANIMOUS AFFIRMANCE
OF THE FINDINGS BELOW THAT APPELLANTS WERE IN VIOLATION OF THE SHERMAN
LAW, THEY WILL SCRUPULOUSLY OBEY THE DECREE AND NOT EVEN BY THE
SUBTLEST INDIRECTION SEEK TO AVOID OUR DECISION.  THEREFORE I THINK IT
IS NEEDLESS NOW TO DETERMINE THAT DIVESTITURE MUST TAKE PLACE FIVE
YEARS HENCE, RATHER THAN WAIT UPON THE EVENT IN ORDER TO DETERMINE
WHETHER DIVESTITURE SHOULD THEN BE ORDERED. 

ACCORDINGLY, I JOIN MR. JUSTICE HARLAN'S OPINION. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING IN PART. 

I AM UNABLE TO SUBSCRIBE TO THE COURT'S APPROVAL OF THOSE PARTS OF
THE DECREE BELOW WHICH ORDERED (1) THE DIVESTITURE OF THE STOCKHOLDINGS
OF NORRIS AND WIRTZ IN MADISON SQUARE GARDEN CORPORATION AND (2) THE
DISSOLUTION OF THE NEW YORK AND ILLINOIS INTERNATIONAL BOXING CLUBS. 
ON THE OTHER ASPECTS OF THE CASE I AGREE WITH THE RESULTS THE COURT HAS
REACHED. 

       DIVESTITURE. 

AS A STARTING POINT I ACCEPT THE CONCLUSION OF THE DISTRICT COURT
THAT COMPETITION IN THE PROMOTION AND EXHIBITION OF PROFESSIONAL
CHAMPIONSHIP BOXING COULD NOT BE EFFECTIVELY RESTORED SO LONG AS NORRIS
AND WIRTZ REMAINED IN CONTROL OF MADISON SQUARE GARDEN'S ACTIVITIES IN
THIS FIELD.  BECAUSE OF THE PRE-EMINENCE OF THE GARDEN AS A SITE FOR
BOXING CONTESTS, THE DISTRICT COURT FOUND THAT ITS CONTROL BY NORRIS
AND WIRTZ CONSTITUTED THE FULCRUM OF THE ANTITRUST VIOLATIONS WHICH
WERE ADJUDGED.  THAT FINDING IS SUPPORTED BY THE EVIDENCE, AND IN TURN
JUSTIFIED THE COURT'S CONCLUSION THAT THE ELIMINATION OF THEIR
INFLUENCE IN THE GARDEN WAS PREREQUISITE TO RESTORING COMPETITION. 

IT BY NO MEANS FOLLOWS, HOWEVER, THAT THE ORDER DIVESTING NORRIS AND
WIRTZ OF THEIR GARDEN STOCKHOLDINGS WAS AN APPROPRIATE METHOD OF
ACCOMPLISHING THAT OBJECTIVE IN THE CIRCUMSTANCES OF THIS CASE.  UNLESS
PAST PRONOUNCEMENTS OF THIS COURT CAUTIONING AGAINST THE INDISCRIMINATE
USE OF DIVESTITURE AS A REMEDY IN ANTITRUST CASES, SEE TIMKEN CO. V.
UNITED STATES, 341 U.S. 593, ARE TO BE TAKEN LESS SERIOUSLY THAN THEY
SHOULD BE, IT SEEMS TO ME THAT THE COURT HAS TOO LIGHTLY GIVEN APPROVAL
TO THE USE OF THAT DRASTIC MEASURE HERE. 

FIRST.  IT IS NOT AT ALL CLEAR TO ME JUST WHY THE DISTRICT COURT,
WHICH IN THE EARLY STAGES OF THE HEARINGS ON RELIEF EXPRESSED ITSELF
STRONGLY AGAINST DIVESTITURE, ULTIMATELY REACHED THE CONCLUSION THAT
SUCH A COURSE WAS NECESSARY.  INDEED THE RECORD CAN BE READ AS
INDICATING THE COURT'S BELIEF THAT THE FIVE-YEAR TRUSTEESHIP OF THE
STOCK, THOUGH DESIGNED TO ALLEVIATE SOME OF THE HARDSHIPS OF A FORCED
SALE, WOULD AT THE SAME TIME EFFECTIVELY REMOVE NORRIS AND WIRTZ FROM
CONTROL OVER THE GARDEN'S AFFAIRS AND THEREFORE IN CONJUNCTION WITH THE
OTHER PROVISIONS OF THE DECREE RESULT IN RESTORING COMPETITIVE
CONDITIONS, WHETHER OR NOT THE CORRELATIVE REQUIREMENT OF SALE WAS
CARRIED OUT WITHIN THE FIVE-YEAR PERIOD.  (FN1)  THE DECREE ITSELF
SUPPORTS THIS READING.  FOR DESPITE THE EVIDENT REALIZATION THAT THE
STOCK MIGHT NOT BE SOLD WITHIN FIVE YEARS, THE PROVISIONS OF THE DECREE
ESPECIALLY AIMED AT OPENING UP COMPETITION FOR THE USE OF THE GARDEN
ARE ALL GEARED TO THIS PERIOD.  IF IN FACT THE DISTRICT COURT THOUGHT
THIS FIVE-YEAR INSULATION OF NORRIS AND WIRTZ FROM MANAGERIAL AND
POLICYMAKING ACTIVITIES AT THE GARDEN WOULD COMBINE WITH THE OTHER
RESTRICTIONS TO RESTORE COMPETITION, JUSTIFICATION FOR DIVESTITURE MUST
THEN BE FOUND IN A PURPOSE TO PREVENT A RELAPSE INTO NONCOMPETITIVE
CONDITIONS AFTER THE FIVE YEARS HAVE ELAPSED, SOMETHING WHICH THE
DISTRICT COURT QUITE PROPERLY CONSIDERED TO BE A FUNCTION OF THE
DECREE.  ON THIS PREMISE I AM AT A LOSS TO SEE WHY CONTINUANCE OF THE
TRUSTEESHIP, AND, IF NECESSARY, THE CONCOMITANT RESTRICTIONS ON THE
GARDEN'S ACTIVITIES, SHOULD NOT HAVE BEEN CONSIDERED ADEQUATE TO SERVE
THAT END. 

SECOND.  IF I AM MISTAKEN IN THUS DIVINING THE THINKING OF THE
DISTRICT COURT, I STILL CONSIDER THAT IN THE CIRCUMSTANCES OF THIS CASE
DIVESTITURE WAS AT LEAST ORDERED PREMATURELY.  DETERMINATION WHETHER
THAT DRASTIC REMEDY WAS REQUIRED SHOULD HAVE BEEN POSTPONED UNTIL THE
EXPIRATION OF THE TRUSTEESHIP PERIOD SO THAT THE NECESSITY FOR ITS
APPLICATION COULD THEN BE JUDGED IN LIGHT OF THE EFFECTIVENESS OF THE
OTHER SANCTIONS OF THE DECREE.  I RECOGNIZE THAT VARIOUS CONTINGENCIES
CAN BE CONJURED UP TO SUPPORT THE VIEW THAT DIVESTITURE, RATHER THAN
TRUSTEESHIP, HOLDS THE MORE SOLID PROMISE OF ASSURING THE PRESERVATION
OF COMPETITION.  NEVERTHELESS I THINK THAT REJECTION OF A CONTINUANCE
OF THE TRUSTEESHIP IN FAVOR OF DIVESTITURE SHOULD, IN THE PECULIAR
SETTING OF THIS CASE, BE BASED ON EXPERIENCE RATHER THAN SPECULATIVE
APPREHENSION. 

THREE FACTORS SEEM TO ME ESPECIALLY COMPELLING TOWARD SUCH A COURSE. 
IN THE FIRST PLACE, THIS CANNOT PROPERLY BE CONSIDERED A CASE OF
REPREHENSIBLE IMMORAL CONDUCT OR WILLFUL LAWBREAKING.  (FN2)  NOT UNTIL
JANUARY 31, 1955, WHEN THIS COURT HANDED DOWN ITS OPINION IN UNITED
STATES V. INTERNATIONAL BOXING CLUB, 348 U.S. 236, DID IT BECOME KNOWN
THAT PROFESSIONAL BOXING WAS EVEN SUBJECT TO THE FEDERAL ANTITRUST
LAWS.  IN VIEW OF THIS COURT'S EARLIER DECISIONS IN THE BASEBALL CASES,
FEDERAL BASEBALL CLUB V. NATIONAL LEAGUE, 259 U.S. 200, AND TOOLSON V.
NEW YORK YANKEES, INC., 346 U.S. 356, I THINK IT REASONABLE TO SAY THAT
IN 1949 WHEN THIS ALLEGED CONSPIRACY BEGAN MOST WELL-INFORMED LAWYERS
BELIEVED THAT PROFESSIONAL BOXING, LIKE PROFESSIONAL BASEBALL, WAS
BEYOND ANTITRUST STRICTURE.  HENCE THE APPELLANTS HAD EVERY REASON TO
BELIEVE THEIR ACTIONS WERE INNOCENT WHEN TAKEN.  PUTTING THE MATTER
SOMEWHAT DIFFERENTLY, WE SHOULD BE SLOW IN LENDING APPROVAL TO THE USE
OF SUCH A DRASTIC REMEDY AS THIS IN A CASE WHERE THE APPELLANTS HAVE
NEVER HAD THE OPPORTUNITY TO DEMONSTRATE THEIR WILLINGNESS TO COMPLY
WITH THE LAW ONCE THEY HAVE LEARNED THAT IT APPLIES TO THEIR
ACTIVITIES.  IN MY OPINION, THE THRUST OF THIS FACTOR IS NOT BLUNTED BY
ARGUING, AS THE COURT DOES, THAT APPELLANTS SHOULD VOLUNTARILY HAVE
DONE SOMETHING TO UNSCRAMBLE THEIR RELATIONSHIPS DURING THE TWO AND A
HALF YEARS THAT ELAPSED BETWEEN THE COURT'S DECISION IN THE ORIGINAL
INTERNATIONAL BOXING CASE AND THE ENTRY OF THE PRESENT DECREE.  THAT
SORT OF SQUEEZE PLAY SHOULD NOT BE EXPECTED OF THOSE ALREADY INVOLVED
IN A LAWSUIT. 

FURTHER, DIVESTITURE HERE IS BROUGHT TO BEAR UPON A LARGE INVESTMENT
MUCH OF WHICH WAS ACQUIRED LONG BEFORE THE CONDUCT CHARGED IN THIS CASE
BEGAN, AND THE BALANCE OF WHICH WAS OBTAINED PRIOR TO THE ANNOUNCEMENT
OF THE INTERNATIONAL BOXING DECISION.  THE "UNLAWFUL FRUITS" DOCTRINE
ACCORDINGLY OFFERS NO JUSTIFICATION FOR THIS DIVESTITURE.  ALTHOUGH
RECOGNIZING THIS TO BE TRUE, THE COURT STATES THAT THE GARDEN STOCK WAS
NONETHELESS UTILIZED AS MEANS OF ACCOMPLISHING THE ANTITRUST
VIOLATIONS.  BUT THIS IS JUST ANOTHER WAY OF SAYING THAT DIVESTITURE IS
A NECESSARY ELEMENT OF EFFECTIVE RELIEF; IT AFFORDS NO INDEPENDENT
JUSTIFICATION FOR THE EMPLOYMENT OF THAT REMEDY. 

LASTLY, THE DIVESTITURE ORDER REACHES FAR BEYOND THE SUBJECT MATTER
OF THE ACTION.  IT PERMANENTLY REMOVES NORRIS AND WIRTZ FROM ALL
INTEREST IN THE GARDEN, OVER 90% OF WHOSE ACTIVITIES ARE ENTIRELY
UNRELATED TO PROFESSIONAL BOXING. 

THIRD.  IT IS TRUE, OF COURSE, THAT THE TRIAL COURT'S CONSIDERED
JUDGMENT ON WHAT IS NECESSARY TO DISSIPATE THE EFFECTS AND PREVENT
RECURRENCE OF AN ADJUDGED ANTITRUST VIOLATION IS ENTITLED TO MUCH
DEFERENCE FROM THIS COURT.  BUT BY THE SAME TOKEN THIS COURT, BEFORE IT
IS ASKED TO PUT ITS STAMP OF APPROVAL ON SUCH A DRASTIC REMEDY AS
DIVESTITURE, IS ENTITLED TO HAVE A CLEAR AND UNAMBIGUOUS EXPRESSION OF
THE DISTRICT COURT'S REASONING IN CHOOSING SUCH A COURSE.  ESPECIALLY
IS THIS SO WHERE, AS HERE, THIS COURT IS THE SOLE REVIEWING AUTHORITY
AND IN CONSEQUENCE HAS NOT HAD THE BENEFIT OF AN INTERMEDIATE REVIEW OF
THE ISSUES BY A COURT OF APPEALS.  IN MY OPINION THIS RECORD LEAVES
MUCH TO BE DESIRED IN THIS REGARD.  THE MOST I CAN MAKE OF IT, TAKING
THE CASE FOR DIVESTITURE MOST FAVORABLY TO THE GOVERNMENT, IS THAT THE
DISTRICT COURT WOULD HAVE BEEN JUSTIFIED IN RESERVING THAT ISSUE FOR
CONSIDERATION AT THE TIME THE FIVE-YEAR TRUSTEESHIP OF THE NORRIS AND
WIRTZ STOCK EXPIRED.  CERTAINLY NO ADEQUATE CASE FOR A PRESENT ORDER OF
DIVESTITURE HAS BEEN MADE OUT.  IN THIS VIEW OF THE MATTER IT BECOMES
UNNECESSARY TO DISCUSS AT THIS TIME THE VARIOUS "OPTIONS" ALTERNATIVE
TO DIVESTITURE WHICH WERE REJECTED BY THE DISTRICT COURT. 

                            DISSOLUTION. 

I CAN FIND NO ADEQUATE BASIS FOR THE ORDER DISSOLVING THE TWO
INTERNATIONAL BOXING CLUBS.  MY DIFFICULTY WITH THIS ASPECT OF THE
RELIEF IS SUFFICIENTLY SHOWN BY THE FACT THAT, AS I READ THE RECORD, IT
WOULD BE PERMISSIBLE FOR MADISON SQUARE GARDEN AND THE NORRIS AND WIRTZ
INTERESTS IN CHICAGO TO CREATE NEW CORPORATIONS CARRYING EXACTLY THE
SAME NAME AS THE TWO PRESENT ORGANIZATIONS.  THE ONLY JUSTIFICATION
OFFERED BY THE GOVERNMENT FOR THIS ASPECT OF THE DECREE IS THAT THE TWO
CLUBS WERE INSTRUMENTALITIES OF THE ANTITRUST CONSPIRACY AND THAT THEIR
DISSOLUTION WAS BUT AN EXPEDIENT FOR INSURING THAT ALL OF THEIR ILLEGAL
AGREEMENTS HAD BEEN PUT TO AN END.  BUT SINCE ALL SUCH AGREEMENTS, BOTH
WRITTEN AND ORAL, ARE ALREADY CANCELED BY OTHER PROVISIONS OF THE
DECREE, AND SINCE THERE IS NO SUGGESTION THAT THE SWEEPING RELIEF
GRANTED BY THE DISTRICT COURT HAS ANY LOOPHOLES WHICH WOULD PERMIT
THESE ORGANIZATIONS TO FUNCTION IMPROPERLY, THIS JUSTIFICATION IS
HARDLY CONVINCING.  IN THESE CIRCUMSTANCES DISSOLUTION APPEARS TO ME TO
BE NOT ONLY PUNITIVE BUT FUTILE, SOMETHING NOT PROMOTIVE OF SOUND
ANTITRUST LAW ENFORCEMENT. 

I WOULD REMAND THE CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO
MODIFY ITS DECREE BY STRIKING THE PROVISIONS FOR COMPULSORY SALE OF THE
NORRIS AND WIRTZ STOCK IN THE MADISON SQUARE GARDEN CORPORATION,
RESERVING THE ISSUE OF DIVESTITURE FOR FURTHER PROCEEDINGS AT THE END
OF THE FIVE-YEAR TRUSTEESHIP PERIOD, AND ELIMINATING THE REQUIREMENT OF
DISSOLUTION OF THE TWO INTERNATIONAL BOXING CLUBS. 

FN1  APART FROM ITS DIVESTITURE AND DISSOLUTION PROVISIONS, THE
DECREE IMPOSES WIDE-RANGING AND PERVASIVE RESTRICTIONS ON APPELLANTS'
ACTIVITIES IN BOXING PROMOTION AND EXHIBITION.  IT RENDERS VOID ALL
EXCLUSIVE CONTRACTS WHICH THEY MAY PRESENTLY HAVE WITH BOXERS.  IT
PROHIBITS THE MAKING OF NEW EXCLUSIVE CONTRACTS, WITH THE EXCEPTION
THAT, AFTER FIVE YEARS, EXCLUSIVE PROVISION MAY BE MADE FOR RETURN
BOUTS.  SIMILARLY, EXCLUSIVE LEASES WITH STADIA NOT OWNED BY APPELLANTS
ARE PROSCRIBED.  SO, TOO, ARE SUCH ARRANGEMENTS WITH TELEVISION AND
RADIO BROADCASTERS.  FURTHER, APPELLANTS ARE RESTRAINED, FOR A PERIOD
OF FIVE YEARS, FROM PROMOTING MORE THAN FOUR CHAMPIONSHIP BOXING
PROGRAMS ANNUALLY, TWO BY MADISON SQUARE GARDEN AND TWO, CUMULATIVELY,
BY NORRIS AND WIRTZ.  DURING THAT FIVE-YEAR PERIOD, ALSO, THE
COMPULSORY LEASING PROVISIONS DISCUSSED IN THE COURT'S OPINION ARE TO
BE IN EFFECT.  FINALLY, THE DECREE REMOVES NORRIS AND WIRTZ AS OFFICERS
AND DIRECTORS OF MADISON SQUARE GARDEN, AND ENJOINS THEM FROM HOLDING
SUCH POSITIONS IN THE FUTURE. 

FN2  THE DISTRICT COURT PUT THE MATTER IN THIS WAY:  "I DON'T CHARGE
THEM (NORRIS AND WIRTZ) WITH MALICIOUS INTENTIONAL AND MORAL
WRONGDOING, NOR DO I PROCEED TO FORMULATE THE DECREE ON SUCH A BASIS. 
THEY ARE GUILTY, IF ANYTHING, OF A MORAL, PROHIBITIVE WRONG WHICH WAS
IN DOUBT AS TO WHETHER IT WAS EVEN PROHIBITIVE AT THE TIME SOME OF
THESE ACTS WERE DONE, AND SERIOUS DOUBT, BUT MOST PEOPLE HELD IT WAS
NOT." 
..END :
























HOTEL EMPLOYEES UNION, LOCAL NO. 255 V. SAX ENTERPRISES, INC. 358 U.S.
270 


NO. 5.  ARGUED NOVEMBER 10, 1958 - DECIDED JANUARY 12, 1959* - 93 SO. 2D
591, 598, REVERSED. 

*TOGETHER WITH NO. 6, HOTEL EMPLOYEES UNION, LOCAL NO. 255, ET AL. V.
LEVY ET AL., DOING BUSINESS AS SHERRY FRONTENAC HOTEL, ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 


THERE BEING NO VIOLENCE INVOLVED, THE FLORIDA STATE COURTS WERE
WITHOUT JURISDICTION TO ENJOIN THE ORGANIZATIONAL PICKETING OF THE
FLORIDA RESORT HOTELS HERE INVOLVED, WHETHER IT WAS ACTIVITY PROTECTED
BY SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT OR PROHIBITED BY SEC.
8(B)(4) - EVEN THOUGH THE NATIONAL LABOR RELATIONS BOARD REFUSED TO
TAKE JURISDICTION.  PP. 270-271. 

HOTEL EMPLOYEES UNION, LOCAL NO. 255, ET AL. V. SAX ENTERPRISES, INC.,
ET AL. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE JUDGMENTS OF THE SUPREME COURT OF FLORIDA IN THESE TWELVE
CONSOLIDATED CASES MUST BE REVERSED.   THEY ALL CONCERN THE POWER OF
THE COURTS OF FLORIDA TO ENJOIN ORGANIZATIONAL PICKETING AT TWELVE
FLORIDA RESORT HOTELS.  AFTER A SERIES OF DECISIONS IN REGARD TO THESE
AND RELATED CASES,* THE FLORIDA SUPREME COURT, IN IDENTICAL PER CURIAM
OPINIONS, AFFIRMED THE ISSUANCE OF PERMANENT INJUNCTIONS AGAINST THE
PICKETING. 

*SAX ENTERPRISES, INC., V. HOTEL EMPLOYEES UNION, 80 SO. 2D 602; BOCA
RATON CLUB, INC., V. HOTEL EMPLOYEES UNION, 83 SO. 2D 11; AND
FONTAINEBLEAU HOTEL CORP. V. HOTEL EMPLOYEES UNION, 92 SO. 2D 415. 

THE FLORIDA COURTS WERE WITHOUT JURISDICTION TO ENJOIN THIS
ORGANIZATIONAL PICKETING, WHETHER IT WAS ACTIVITY PROTECTED BY SEC. 7
OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 29 U.S.C. SEC. 157,
HILL V. FLORIDA EX REL. WATSON, 325 U.S. 538, OR PROHIBITED BY SEC.
8(B)(4) OF THE ACT, 29 U.S.C. SEC. 158(B)(4), GARNER V. TEAMSTERS
UNION, 346 U.S. 485.  SEE WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468,
AT 481.  THIS FOLLOWS EVEN THOUGH THE NATIONAL LABOR RELATIONS BOARD
REFUSED TO TAKE JURISDICTION, AMALGAMATED MEAT CUTTERS V. FAIRLAWN
MEATS, 353 U.S. 20.  THE RECORD DOES NOT DISCLOSE VIOLENCE SUFFICIENT
TO GIVE THE STATE JURISDICTION UNDER UNITED AUTOMOBILE WORKERS V.
WISCONSIN BOARD, 351 U.S. 266.  IN NONE OF THE TWELVE CASES DID THE
FLORIDA TRIAL COURTS MAKE ANY FINDING OF VIOLENCE, AND IN SOME AN
AFFIRMATIVE FINDING OF NO VIOLENCE WAS MADE. 

SINCE IT WAS STIPULATED BELOW THAT A WITNESS WOULD TESTIFY THAT
INTERSTATE COMMERCE WAS INVOLVED IN THE FLORIDA RESORT HOTEL INDUSTRY,
AND SINCE THE PARTIES ASKED THAT "FINAL DECREE BE ENTERED BY THE
CHANCELLOR UPON THE RECORD AS NOW MADE IN LIGHT OF THIS STIPULATION,"
WE FIND IT UNNECESSARY TO REMAND FOR CONSIDERATION OF THAT QUESTION. 
SEE HOTEL EMPLOYEES LOCAL NO. 255 V. LEEDOM, 358 U.S. 99.  OTHER
QUESTIONS RAISED BY RESPONDENTS ARE EITHER WITHOUT MERIT OR IRRELEVANT
TO THIS DISPOSITION OF THE CASES.  REVERSED. 
..END :















HAHN V. ROSS ISLAND SAND & GRAVEL 358 U.S. 272 


NO. 52.  ARGUED DECEMBER 11, 1958 - DECIDED JANUARY 12, 1959 - 214 ORE. 
1, 320 P.2D 668, REVERSED AND CAUSE REMANDED. 


PETITIONER WAS INJURED WHILE WORKING ON A BARGE USED IN CONNECTION
WITH THE DREDGING OF SAND AND GRAVEL IN A LAGOON OPENING INTO A
NAVIGABLE RIVER.  HIS EMPLOYER HAD REJECTED THE STATE WORKMEN'S
COMPENSATION ACT, WHICH PROVIDES THAT, IN SUCH CASES, AN INJURED
EMPLOYEE MAY MAINTAIN IN THE COURTS A NEGLIGENCE ACTION FOR DAMAGES. 
PETITIONER BROUGHT SUCH AN ACTION IN A STATE COURT.  HELD:  THOUGH HIS
EMPLOYER HAD ACCEPTED ITS COVERAGE, NOTHING IN THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT PREVENTS PETITIONER FROM RECOVERING IN
THE STATE COURT.  PP. 272-273. 

HAHN V. ROSS ISLAND SAND & GRAVEL CO. 

CERTIORARI TO THE SUPREME COURT OF OREGON. 

PER CURIAM. 

BY ITS TERMS, THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT
DOES NOT APPLY "IF RECOVERY FOR THE DISABILITY OR DEATH THROUGH
WORKMEN'S COMPENSATION PROCEEDINGS MAY  ...  VALIDLY BE PROVIDED BY
STATE LAW."  SEC. 3, 44 STAT. 1426, 33 U.S.C. SEC. 903(A).  IN DAVIS V.
DEPARTMENT OF LABOR, 317 U.S. 249, WE RECOGNIZED THAT IN SOME CASES IT
WAS IMPOSSIBLE TO PREDICT IN ADVANCE OF TRIAL WHETHER A WORKER'S INJURY
OCCURRED IN AN OPERATION WHICH, ALTHOUGH MARITIME IN NATURE, WAS SO
"LOCAL" AS TO ALLOW STATE COMPENSATION LAWS VALIDLY TO APPLY UNDER THE
LIMITATIONS OF SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205.  AS TO
CASES WITHIN THIS "TWILIGHT ZONE," DAVIS, IN EFFECT, GAVE AN INJURED
WATERFRONT EMPLOYEE AN ELECTION TO RECOVER COMPENSATION UNDER EITHER
THE LONGSHOREMEN'S ACT OR THE WORKMEN'S COMPENSATION LAW OF THE STATE
IN WHICH THE INJURY OCCURRED.  IT SEEMS PLAIN ENOUGH THAT PETITIONER'S
INJURY OCCURRED IN THE "TWILIGHT ZONE," AND THAT RECOVERY FOR IT
"THROUGH WORKMEN'S COMPENSATION PROCEEDINGS," COULD HAVE BEEN, AND IN
FACT WAS, VALIDLY "PROVIDED BY STATE LAW" - THE OREGON WORKMEN'S
COMPENSATION ACT.  ORE.  REV. STAT. SECS.  656.002-656.990.  THEREFORE,
THE LONGSHOREMEN'S ACT DID NOT BAR PETITIONER'S CLAIM UNDER STATE LAW. 
BUT SINCE HIS EMPLOYER HAD ELECTED TO REJECT THEM THE AUTOMATIC
COMPENSATION PROVISIONS OF THE OREGON WORKMEN'S COMPENSATION ACT DID
APPLY TO THE CLAIM.  SECTION 656.024 OF THAT LAW PROVIDES, HOWEVER,
THAT WHEN AN EMPLOYER HAS ELECTED TO REJECT THE ACT'S AUTOMATIC
COMPENSATION PROVISIONS HIS INJURED EMPLOYEE MAY MAINTAIN IN THE COURTS
A NEGLIGENCE ACTION FOR DAMAGES.  OF COURSE, THE EMPLOYEE COULD NOT DO
THIS IF THE CASE WERE NOT WITHIN THE "TWILIGHT ZONE," FOR THEN THE
LONGSHOREMEN'S ACT WOULD PROVIDE THE EXCLUSIVE REMEDY.  SINCE THIS CASE
IS WITHIN THE "TWILIGHT ZONE," IT FOLLOWS FROM WHAT WE HELD IN DAVIS
THAT NOTHING IN THE LONGSHOREMEN'S ACT OR THE UNITED STATES
CONSTITUTION PREVENTS RECOVERY. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE SUPREME
COURT OF OREGON FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

THE CHIEF JUSTICE AND MR. JUSTICE FRANKFURTER TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE STEWART, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THIS CASE POSES A DIFFICULT AND IMPORTANT ISSUE OF FIRST IMPRESSION. 
THE COURT DECIDES IT, I THINK, INCORRECTLY. 

THE PETITIONER WAS INJURED WHILE WORKING ON A BARGE IN NAVIGABLE
WATERS WITHIN THE STATE OF OREGON.  THE RESPONDENT EMPLOYER HAD SECURED
PAYMENT OF COMPENSATION UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, 33 U.S.C. SEC. 901 ET SEQ., BUT HAD ELECTED NOT TO BE
COVERED BY THE OREGON WORKMEN'S COMPENSATION LAW, ORE.  REV.  STAT.
SEC. 656.002 ET SEQ. COMPENSATION BENEFITS UNDER THE FEDERAL STATUTE
WERE CLEARLY AVAILABLE AT ALL TIMES TO THE PETITIONER.  INSTEAD OF
ACCEPTING THESE BENEFITS, HOWEVER, HE BROUGHT AN ACTION FOR PERSONAL
INJURIES IN AN OREGON STATE COURT, THE OREGON STATUTE PERMITTING SUCH
AN ACTION AGAINST AN EMPLOYER NOT PARTICIPATING IN THE STATE WORKMEN'S
COMPENSATION PLAN.  (FN1) 

THE TRIAL COURT ENTERED JUDGMENT FOR THE EMPLOYER, NOTWITHSTANDING A
JURY AWARD IN THE PETITIONER'S FAVOR, AND THE JUDGMENT WAS AFFIRMED BY
THE OREGON SUPREME COURT, WHICH HELD THAT THE PETITIONER'S SOLE REMEDY
WAS UNDER THE FEDERAL STATUTE.  214 ORE.  1, 320 P.2D 668.  IT IS THAT
DECISION WHICH IS TODAY REVERSED. 

THE CREATION IN DAVIS V. DEPARTMENT OF LABOR OF A "TWILIGHT ZONE" WAS
A PRACTICAL SOLUTION TO A PRACTICAL PROBLEM, A PROBLEM STEMMING FROM
SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, AND ONE WHICH 25 YEARS OF
POST-JENSEN HISTORY HAD FAILED TO SOLVE.  THE PROBLEM WAS HOW TO ASSURE
TO INJURED WATERFRONT EMPLOYEES THE SIMPLE, PROMPT, AND CERTAIN
PROTECTION OF WORKMEN'S COMPENSATION WHICH CONGRESS HAD CLEARLY
INTENDED TO GIVE IN ENACTING THE FEDERAL STATUTE.  SEE 317 U.S., AT
254.  THE DAVIS DECISION IN EFFECT TOLD THE INJURED EMPLOYEE THAT IN A
DOUBTFUL CASE HE WOULD BE ASSURED OF WORKMEN'S COMPENSATION WHETHER HE
PROCEEDED UNDER A STATE WORKMEN'S COMPENSATION ACT OR THE FEDERAL
STATUTE.  SEE MORRES'S CASE, 323 MASS. 162, 80 N.E.2D 478, AFF'D PER
CURIAM, SUB NOM. BETHLEHEM STEEL CO. V. MOORES, 335 U.S. 874. 

EVEN ACCEPTING THE PREMISE THAT THE CIRCUMSTANCES SURROUNDING HAHN'S
ACCIDENT BROUGHT IT WITHIN THE TWILIGHT ZONE, NO ONE HAD SUPPOSED UNTIL
TODAY THAT EITHER DAVIS OR THE FEDERAL STATUTE ALLOWED AN EMPLOYEE TO
SPURN FEDERAL COMPENSATION AND SUBMIT HIS CLAIM TO A STATE COURT JURY. 
(FN2) CHAPPELL V. C.D. JOHNSON LUMBER CORP., 112 F. SUPP. 625, REVERSED
ON OTHER GROUNDS, 216 F.2D 873. 

IN THE INTEREST OF A CLEAR LEGISLATIVE PURPOSE TO PROVIDE THE
CERTAINTY AND SECURITY OF WORKMEN'S COMPENSATION, THE "ILLOGIC" OF A
TWILIGHT ZONE WAS PERMITTED.  (FN3)  SUCH ILLOGIC SHOULD NOT BE
UTILIZED TO FRUSTRATE THAT VERY PURPOSE.  I WOULD AFFIRM THE JUDGMENT. 

FN1  THE EMPLOYER IN SUCH A CASE IS DEPRIVED OF THE TRADITIONAL
COMMON-LAW DEFENSES.  ORE.  REV. STAT. SEC. 656.024. 

FN2  THE PERTINENT PROVISION OF 33 U.S.C. SEC. 903(A) IS AS FOLLOWS: 

"(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 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." 

FN3  THE TWILIGHT ZONE AND ITS BACKGROUND HAVE BEEN MUCH CRITICIZED
AND DISCUSSED.  FOR SUMMARIES, SEE GILMORE AND BLACK, THE LAW OF
ADMIRALTY (1957), SEC. 6-48; 2 LARSON, THE LAW OF WORKMEN'S
COMPENSATION (1952), SEC. 89.00 ET SEQ.; RODES, WORKMEN'S COMPENSATION
FOR MARITIME EMPLOYEES: OBSCURITY IN THE TWILIGHT ZONE, 68 HARV. L.
REV. 637 (1955). 
..END :
















UNITED STATES, JENNINGS V. RAGEN 358 U.S. 276 


NO. 185, MISC.  DECIDED JANUARY 12, 1959 - JUDGMENT VACATED AND CAUSE
REMANDED TO DISTRICT COURT FOR FURTHER PROCEEDINGS. 


WHILE CONFINED UNDER SENTENCE OF AN ILLINOIS COURT FOLLOWING HIS
CONVICTION OF ARMED ROBBERY, PETITIONER SOUGHT A WRIT OF HABEAS CORPUS
FROM A FEDERAL DISTRICT COURT, CLAIMING THAT A CONFESSION COERCED BY
PHYSICAL MISTREATMENT BY POLICE OFFICERS HAD BEEN INTRODUCED INTO
EVIDENCE AT HIS TRIAL.  RELYING ON FACTS AND CONCLUSIONS STATED IN AN
OPINION OF THE STATE SUPREME COURT AND WITHOUT MAKING AN EXAMINATION OF
THE RECORD OF THE PROCEEDINGS IN THE STATE COURTS, THE DISTRICT COURT
DISMISSED THE APPLICATION WITHOUT A HEARING.  HELD: IT ERRED IN DOING
SO.  PP. 276-277. 

UNITED STATES EX REL. JENNINGS V. RAGEN, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED. 

PETITIONER, CONFINED UNDER SENTENCE OF AN ILLINOIS COURT FOLLOWING
HIS CONVICTION OF ARMED ROBBERY, SOUGHT A WRIT OF HABEAS CORPUS FROM
THE FEDERAL DISTRICT COURT.  HIS PETITION CONTAINED ALLEGATIONS,
PRIMARILY CONCERNING THE INTRODUCTION INTO EVIDENCE AT HIS TRIAL OF A
CONFESSION COERCED BY PHYSICAL MISTREATMENT BY POLICE OFFICERS, WHICH
IF TRUE WOULD ENTITLE HIM TO RELIEF.  APPENDED TO THE PETITION WERE
VARIOUS DOCUMENTS, INCLUDING AN OPINION OF THE SUPREME COURT OF
ILLINOIS AFFIRMING HIS CONVICTION AND SIMULTANEOUSLY AFFIRMING THE
DENIAL TO HIM OF POST-CONVICTION REMEDIES WHICH HE HAD SOUGHT IN THE
TRIAL COURT WHILE HIS APPEAL FROM THE CONVICTION WAS PENDING.  SEE
PEOPLE V. JENNINGS, 11 ILL.  2D 610, 144 N.E.2D 612.  IN THAT OPINION,
THE STATE COURT HELD THAT THE EVIDENCE BEFORE IT WARRANTED THE TRIAL
COURT'S FINDING THAT PETITIONER'S CONFESSION HAD BEEN VOLUNTARY. 

THE STATE RESPONDED TO PETITIONER'S APPLICATION AND URGED DISMISSAL. 
THE DISTRICT COURT, ON A RECORD LIMITED TO THE AFOREMENTIONED DOCUMENTS
AUGMENTED BY A "REPORT" PREPARED BY AN AMICUS CURIAE APPOINTED BY IT,
DISMISSED THE APPLICATION WITHOUT A HEARING.  THE COURT OF APPEALS, IN
TURN, DENIED PETITIONER'S MOTION FOR A CERTIFICATE OF PROBABLE CAUSE,
28 U.S.C. SEC. 2253, AND DISMISSED HIS APPEAL. 

IT APPEARS FROM THE RECORD BEFORE US THAT THE DISTRICT COURT
DISMISSED PETITIONER'S APPLICATION WITHOUT MAKING ANY EXAMINATION OF
THE RECORD OF PROCEEDINGS IN THE STATE COURTS, AND INSTEAD SIMPLY
RELIED ON THE FACTS AND CONCLUSIONS STATED IN THE OPINION OF THE
SUPREME COURT OF ILLINOIS.  WE THINK THAT THE DISTRICT COURT ERRED IN
DISMISSING THIS PETITION WITHOUT FIRST SATISFYING ITSELF, BY AN
APPROPRIATE EXAMINATION OF THE STATE COURT RECORD, THAT THIS WAS A
PROPER CASE FOR THE DISMISSAL OF PETITIONER'S APPLICATION WITHOUT A
HEARING, IN ACCORDANCE WITH THE PRINCIPLES SET FORTH IN BROWN V. ALLEN,
344 U.S. 443, 463-465, 506.  SEE ALSO ROGERS V. RICHMOND, 357 U.S.
220.  IT FOLLOWS THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE
VACATED AND THE CASE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :











SOMERVILLE MILLING CO. V. WORCESTER NORTH SAVINGS INSTITUTION 358 U.S.
278 


NO. 495.  DECIDED JANUARY 12, 1959 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  101 N.H. 307, 141 A.2D 885. 


SOMERVILLE MILLING CO. ET AL. V. WORCESTER NORTH SAVINGS INSTITUTION. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

PER CURIAM. 

THE MOTION TO STRIKE THE MOTION TO DISMISS IS DENIED.  THE MOTION TO
DISMISS IS GRANTED AND THE APPEAL IS DISMISSED.  TREATING THE PAPERS
WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT OF CERTIORARI,
CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :











TERRITO V. UNITED STATES 358 U.S. 279 


NO. 454.  DECIDED JANUARY 12, 1959 - APPEAL DISMISSED BECAUSE NOTICE
THEREOF WAS NOT TIMELY FILED - REPORTED BELOW:  170 F. SUPP. 855. 


TERRITO ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR THE REASON THAT THE NOTICE THEREOF WAS
NOT FILED WITHIN THE TIME PROVIDED BY LAW. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













FEDERAL POWER COMMISSION V. MIDWESTERN GAS TRANSMISSION CO. 358 U.S.
280 


NO. 515.  DECIDED JANUARY 12, 1959 - REPORTED BELOW:  103 U.S. APP. D.C.
360, 258 F.2D 660. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED WITH
INSTRUCTIONS TO DISMISS RESPONDENT'S PETITION FOR REVIEW AS MOOT. 

FEDERAL POWER COMMISSION V. MIDWESTERN GAS TRANSMISSION CO. ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THAT COURT WITH
INSTRUCTIONS TO DISMISS RESPONDENT'S PETITION FOR REVIEW AS MOOT. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :







SMITH V. UNITED STATES 358 U.S. 281 


NO. 192, MISC.  DECIDED JANUARY 12, 1959. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO DISTRICT
COURT WITH DIRECTIONS TO ALLOW THE APPEAL IN FORMA PAUPERIS. 

SMITH V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO ALLOW THE APPEAL IN FORMA PAUPERIS.  ELLIS V. UNITED
STATES, 356 U.S. 674. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :







F.&M. SCHAEFER BREWING CO. V. GEROSA 358 U.S. 282 


NO. 526.  DECIDED JANUARY 12, 1959 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW: 4 N.Y.2D 423, 151 N.E.2D
845. 


F.&M. SCHAEFER BREWING CO. V. GEROSA, COMPTROLLER OF THE CITY OF NEW
YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :












MCDANIEL V. CALIFORNIA 358 U.S. 282 


NO. 283, MISC.  DECIDED JANUARY 12, 1959 - APPEAL DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  157 CAL. APP. 2D 492,
321 P.2D 497. 


MCDANIEL V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













AMERICAN TRUCKING ASSOCIATIONS, INC. V. FRISCO TRANSPORTATION CO. 358
U.S. 133 


NO. 15.  ARGUED OCTOBER 13, 1958 - DECIDED DECEMBER 15, 1958* - 153 F.
SUPP. 572, REVERSED. 

*TOGETHER WITH NO. 16, RAILWAY LABOR EXECUTIVES' ASSOCIATION ET AL.
V. FRISCO TRANSPORTATION CO., AND NO. 19, INTERSTATE COMMERCE
COMMISSION V. FRISCO TRANSPORTATION CO., ALSO ON APPEALS FROM THE SAME
COURT. 


UNDER WHAT IS NOW SEC. 5(2)(B) OF THE INTERSTATE COMMERCE ACT, THE
COMMISSION AUTHORIZED APPELLEE, THE WHOLLY OWNED SUBSIDIARY OF A
RAILROAD, TO PURCHASE THE OPERATING RIGHTS OF SEVERAL INDEPENDENT MOTOR
CARRIERS.  EACH OF THE COMMISSION'S REPORTS AUTHORIZING SUCH PURCHASES
STATED THAT THE APPROVAL WAS SUBJECT "TO SUCH FURTHER LIMITATIONS,
RESTRICTIONS, OR MODIFICATIONS AS THE COMMISSION MAY HEREAFTER FIND
NECESSARY TO IMPOSE, IN ORDER TO INSURE THAT THE SERVICE SHALL BE
AUXILIARY OR SUPPLEMENTARY TO THE TRAIN SERVICE OF THE RAILROAD  ...
."  THEREAFTER, WITHOUT NOTICE, HEARING OR OTHER PROCEEDING FOR THE
ELIMINATION OF THIS RESERVATION, THE COMMISSION ISSUED TO APPELLEE
CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY WHICH DID NOT CONTAIN
THE RESERVATION OF POWER TO IMPOSE RESTRICTIONS.  STILL LATER, THE
COMMISSION REOPENED THE ACQUISITION PROCEEDINGS AND FOUND, AFTER NOTICE
AND HEARING, THAT THE OMISSION OF THE RESERVATION OF SUCH POWER FROM
THE CERTIFICATES RESULTED FROM AN INADVERTENT MINISTERIAL ERROR OF THE
COMMISSION'S STAFF, AND IT ORDERED THAT THIS ERROR BE CORRECTED AND
THAT CERTAIN SPECIFIED CONDITIONS CONSISTENT WITH THE RESERVATIONS BE
IMPOSED.  APPELLEE SUED TO HAVE THE ORDER SET ASIDE.  HELD:  THE
COMMISSION'S ORDER IS SUSTAINED.  PP. 134-146. 

(1)  ON THE RECORD IN THIS CASE, THE COMMISSION PROPERLY CONCLUDED
THAT THE OMISSION FROM THE CERTIFICATES OF THE RESERVATION OF POWER TO
IMPOSE RESTRICTIONS WAS NOT DUE TO A CONSCIOUS POLICY CHOICE ON THE
PART OF THE COMMISSION BUT RESULTED FROM AN INADVERTENT MINISTERIAL
ERROR ON THE PART OF THE COMMISSION'S STAFF.  PP. 140-144. 

(2)  UNDER SEC. 17(3) OF THE ACT, THE COMMISSION HAD POWER TO MODIFY
THE CERTIFICATES SO AS TO CORRECT THESE INADVERTENT MINISTERIAL ERRORS,
AND SUCH ACTION IS NOT PROHIBITED BY SEC. 212, WHICH MAKES THE ISSUANCE
OF A CERTIFICATE THE FINAL STEP IN THE ADMINISTRATIVE PROCESS.  PP. 144
146. 

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. V. FRISCO TRANSPORTATION
CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS WHETHER THE INTERSTATE COMMERCE COMMISSION HAS THE
POWER TO MODIFY CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY
CONTAINING INADVERTENT ERRORS, AND, IF SO, WHETHER, IN THE
CIRCUMSTANCES OF THESE CASES, THE COMMISSION COULD MODIFY CERTIFICATES
WHICH HAD INADVERTENTLY AUTHORIZED THE PERFORMANCE OF UNRESTRICTED
MOTOR CARRIER SERVICES BY A WHOLLY OWNED SUBSIDIARY OF A RAILROAD. 

APPELLEE, A WHOLLY OWNED SUBSIDIARY OF THE ST. LOUIS-SAN FRANCISCO
RAILWAY COMPANY, IS A COMMON CARRIER BY MOTOR VEHICLE ENGAGED PRIMARILY
IN THE TRANSPORTATION OF PROPERTY IN INTERSTATE AND INTRASTATE
COMMERCE.  THE GREATER PART OF APPELLEE'S MOTOR CARRIER SYSTEM WAS
ACQUIRED IN 1938 AND 1939 BY THE PURCHASE OF EXISTING INDEPENDENT MOTOR
CARRIERS.  THESE PURCHASES WERE MADE PURSUANT TO THE PREDECESSOR OF
SEC. 5(2)(B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 5(2)(B),
WHICH PERMITS THE ACQUISITION BY A RAIL CARRIER OF THE RIGHTS AND
PROPERTIES OF A MOTOR CARRIER IF THE INTERSTATE COMMERCE COMMISSION
FINDS THAT THE ACQUISITION "WILL BE CONSISTENT WITH THE PUBLIC INTEREST
AND WILL ENABLE SUCH RAIL CARRIER TO USE SERVICE BY MOTOR VEHICLE TO
PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN
COMPETITION."  (FN1)  IN 1938, APPELLEE BEGAN SEEKING PERMISSION TO
OPERATE AS A MOTOR CARRIER OVER SUBSTANTIAL MILEAGE IN SEVEN STATES
INCLUDING ROUTES IN ISSUE HERE.  ON SOME OF THE ROUTES EVENTUALLY
ACQUIRED BY APPELLEE, THE COMMISSION AUTHORIZED IT TO CARRY ON
UNRESTRICTED OPERATIONS.  ON OTHERS, THE COMMISSION IMPOSED
RESTRICTIONS LIMITING SERVICE TO POINTS WITHIN TEN MILES OF THE RAIL
STATIONS OF APPELLEE'S PARENT CORPORATION OR TO TRANSPORTATION OF
SHIPMENTS FROM, TO, OR THROUGH CERTAIN CITIES.  IN ADDITION, ON SOME
ROUTES THE COMMISSION IMPOSED ADDITIONAL RESTRICTIONS TO ASSURE THAT
APPELLEE'S SERVICE WOULD BE "AUXILIARY OR SUPPLEMENTARY" TO THE
SERVICES PERFORMED BY ITS CORPORATE PARENT.  (FN2) 

THIS CASE CONCERNS FOUR OF APPELLEE'S ROUTES AGGREGATING SOME 284
MILES.  PRIOR TO APPELLEE'S PURCHASE, EACH OF THE ROUTES WAS SERVICED
BY AN INDEPENDENT MOTOR CARRIER WHICH ENGAGED IN UNRESTRICTED MOTOR
CARRIER OPERATIONS.  DURING 1938 AND 1939, APPELLEE MADE APPLICATION TO
THE COMMISSION FOR PERMISSION TO PURCHASE THE PROPERTIES AND OPERATING
RIGHTS OF THESE INDEPENDENT CARRIERS.  FINANCE HEARINGS WERE HELD
BEFORE A COMMISSION EXAMINER TO DETERMINE WHETHER THE ACQUISITIONS MET
THE APPLICABLE STATUTORY STANDARDS.  ALTHOUGH APPELLEE SOUGHT TO
CONTINUE THE ACQUIRED CARRIERS' UNRESTRICTED OPERATIONS, IT REPRESENTED
TO THE COMMISSION IN EACH OF ITS APPLICATIONS THAT ACQUISITION OF THE
CARRIERS WOULD ENABLE IT TO ESTABLISH COORDINATED TRUCK SERVICE WITH
THE TRAIN SERVICE OF ITS PARENT RAILROAD ALONG THESE ROUTES.  A NUMBER
OF MOTOR CARRIERS OPPOSED APPELLEE'S APPLICATIONS, BUT THE HEARING
EXAMINER RECOMMENDED APPROVAL OF EACH, SUBJECT TO VARIOUS CONDITIONS. 
AMONG THESE WAS THE RECOMMENDATION THAT THE AUTHORITY GRANTED BE
SUBJECT "TO SUCH FURTHER LIMITATIONS, RESTRICTIONS, OR MODIFICATIONS AS
THE COMMISSION MAY HEREAFTER FIND NECESSARY TO IMPOSE, IN ORDER TO
INSURE THAT THE SERVICE SHALL BE AUXILIARY OR SUPPLEMENTARY TO THE
TRAIN SERVICE OF THE PARENT RAILROAD, AND SHALL NOT UNDULY RESTRAIN
COMPETITION."  THE PROTESTANT MOTOR CARRIERS FILED EXCEPTIONS TO THE
HEARING EXAMINER'S REPORT ON ONE OF THE PURCHASES AND ALL WENT TO
DIVISION 5 OF THE COMMISSION FOR ACTION.  IT REVIEWED THE REPORTS AND
ADOPTED THE EXAMINER'S RECOMMENDATIONS INCLUDING THE ABOVE-QUOTED
CONDITION.  ALTHOUGH APPELLEE HAD ASKED FOR AUTHORITY TO OPERATE
UNRESTRICTED SERVICE, IT TOOK NO EXCEPTIONS TO THE DIVISION REPORTS AND
DID NOT ASK FOR REVIEW BY THE FULL COMMISSION.  RATHER, IT NOTIFIED THE
COMMISSION THAT IT WOULD CONSUMMATE THE APPROVED PURCHASES SUBJECT TO
THE TERMS PRESCRIBED, AND, WITHIN THIRTY DAYS OF THE REPORTS, IT DID
CONSUMMATE THE TRANSACTIONS AND COMMENCE OPERATIONS. 

THEREAFTER, IN 1939, COMPLIANCE ORDERS ISSUED TO APPELLEE IN
CONNECTION WITH THE FOUR ROUTES IN QUESTION.  THESE INFORMED APPELLEE
THAT CERTIFICATES OF CONVENIENCE AND NECESSITY AUTHORIZING IT TO ENGAGE
IN INTERSTATE AND FOREIGN COMMERCE AS A COMMON CARRIER ACCORDING TO
SPECIFICATIONS SET FORTH IN THE ORDERS WOULD BE ISSUED AS SOON AS
APPELLEE COMPLIED WITH APPLICABLE STATUTORY REQUIREMENTS, INCLUDING THE
FILING OF RATE PUBLICATIONS AND EVIDENCE OF SECURITY FOR THE PROTECTION
OF THE PUBLIC.   THE SPECIFICATIONS IN THE COMPLIANCE ORDERS DID NOT
INCLUDE THE CONDITION ADOPTED BY DIVISION 5 RESERVING THE RIGHT TO THE
COMMISSION TO TAKE STEPS TO INSURE THAT APPELLEE'S SERVICE WOULD BE
"AUXILIARY OR SUPPLEMENTARY" TO ITS PARENT'S RAIL SERVICES. 

IN 1941, PRIOR TO THE ISSUANCE OF CERTIFICATES COVERING THE FOUR
ROUTES, A COMPLAINT WAS FILED BY VARIOUS COMPETING MOTOR CARRIERS WHICH
CHARGED THAT APPELLEE WAS PERFORMING UNAUTHORIZED MOTOR CARRIER SERVICE
WHICH WAS INDEPENDENT OF ITS PARENT'S RAIL SERVICES.  DURING THE COURSE
OF THIS PROCEEDING, A NUMBER OF CERTIFICATES OF CONVENIENCE AND
NECESSITY ISSUED TO APPELLEE.  THOSE CONCERNING THE FOUR ROUTES IN
QUESTION CONTAINED NO RESERVATIONS OF AUTHORITY SIMILAR TO THE ONES
STATED IN THE FINANCE HEARING ORDERS ISSUED BY DIVISION 5.  ON AUGUST
1, 1944, DIVISION 5 ENTERED FINDINGS IN THAT PROCEEDING STATING THAT
APPELLEE WAS PERFORMING UNAUTHORIZED DIRECT MOTOR CARRIER SERVICE WHICH
IT HAD NOT BEEN AUTHORIZED TO PERFORM BY THE ORIGINAL ACQUISITION
ORDERS.  THE DIVISION FURTHER STATED THAT APPELLEE'S ORIGINAL
AUTHORIZATION HAD BEEN LIMITED TO SERVICES "AUXILIARY OR SUPPLEMENTARY"
TO THE RAIL SERVICE OF ITS PARENT.  BECAUSE APPELLEE HAD ACQUIRED
UNCONDITIONAL CERTIFICATES, HOWEVER, THE DIVISION DID NOT ENTER AN
ORDER, BUT INDICATED THAT THE ACQUISITION PROCEEDINGS WOULD BE REOPENED
TO DETERMINE WHAT, IF ANY, CONDITIONS SHOULD BE IMPOSED IN APPELLEE'S
CERTIFICATES.  (FN3)  SUBSEQUENTLY, THE COMMISSION DISAPPROVED THE
DIVISION'S FINDINGS THAT APPELLEE HAD ENGAGED IN OPERATIONS
UNAUTHORIZED BY ITS CERTIFICATES, BUT IT STATED THAT THE CONDITIONS, IF
ANY, WHICH SHOULD BE IMPOSED WOULD BE CONSIDERED IN THE REOPENED
PROCEEDINGS.  (FN4) 

THE REOPENED PROCEEDINGS COMMENCED ON MOTION OF THE DIVISION IN
1945.  ALL PARTIES TO THE PROCEEDING WERE SERVED WITH AN EXAMINER'S
PROPOSED REPORT BASED ON THE RECORDS OF THE COMMISSION.  THIS REPORT
STATED THAT THE COMMISSION HAD APPROVED APPELLEE'S ACQUISITIONS SUBJECT
TO THE RIGHT TO IMPOSE CONDITIONS TO ASSURE THAT APPELLEE'S OPERATIONS
WOULD BE AUXILIARY OR SUPPLEMENTARY TO THE RAIL SERVICE OF ITS PARENT,
BUT THAT SUCH A RESERVATION INADVERTENTLY HAD BEEN OMITTED FROM THE
CERTIFICATES ISSUED TO APPELLEE.  THE REPORT PROPOSED SPECIFIC
CONDITIONS TO EFFECTUATE THE ORIGINAL PURPOSE OF THE COMMISSION - I.E.,
TO ASSURE THAT APPELLEE'S SERVICES WERE SOLELY "AUXILIARY OR
SUPPLEMENTARY." 

APPELLEE FILED EXCEPTIONS TO THE PROPOSED REPORT AND REQUESTED
HEARINGS.  THEREUPON, THE DIVISION REOPENED THE PROCEEDINGS FOR FURTHER
HEARINGS WHICH WERE HELD IN 1946, AFTER WHICH THE MATTER WAS REFERRED
TO EXAMINERS FOR FURTHER APPROPRIATE PROCEEDINGS.  IN AN EXHAUSTIVE
REPORT, THE EXAMINERS DISCUSSED THE HISTORY OF APPELLEE'S OPERATIONS
AND THE CIRCUMSTANCES SURROUNDING THE ISSUANCE OF THE UNCONDITIONED
CERTIFICATES.  THEY CONCLUDED THAT THE CERTIFICATES COULD NOT AUTHORIZE
OPERATIONS BROADER THAN THOSE APPROVED BY THE COMMISSION IN THE FINANCE
PROCEEDINGS AND THAT THE CERTIFICATES INADVERTENTLY HAD OMITTED
RELEVANT RESTRICTIONS.  THE DIVISION, IN ITS REPORT, REVIEWED THE
COMMISSION'S ADMINISTRATIVE PROCEDURES AND PRACTICES AND POINTED OUT
HOW THE ERROR PROBABLY HAD OCCURRED.  IT SHOWED THAT CERTIFICATES ARE
PREPARED BY A STAFF SECTION OF THE COMMISSION WHICH, AFTER A PRESCRIBED
LAPSE OF TIME FROM THE ADOPTION OF REPORTS OR ORDERS BY THE COMMISSION
AUTHORIZING THE ISSUANCE OF CERTIFICATES, INSERTS ON MIMEOGRAPHED FORMS
CONTAINING STOCK PARAGRAPHS THE AUTHORITY DESCRIBED IN THE FINDINGS OF
THE REPORT.  IT FURTHER STATED THAT, UNDER THE COMMISSION RULES, THIS
STAFF SECTION HAS NO DISCRETION TO ALTER ANYTHING CONTAINED IN THE
REPORTS AND IS CHARGED WITH THE SOLE RESPONSIBILITY OF TRANSPOSING THE
COMMISSION FINDINGS INTO CERTIFICATE FORM.  DIFFERENT ACTION, IF ANY,
WHICH MIGHT BE DESIRED CAN ONLY BE TAKEN BY THE COMMISSION OR A
DIVISION THROUGH A FORMAL SUPPLEMENTAL REPORT.  THE CERTIFICATES ARE
REVIEWED BY A SUPERVISOR, WHO IS ALSO WITHOUT DISCRETIONARY AUTHORITY
TO MAKE CHANGES, AND ARE THEN ISSUED.  THE DIVISION REASONED THAT AS NO
SUPPLEMENTAL REPORT HAD ISSUED BETWEEN THE CONCLUSION OF THE FINANCE
HEARINGS AND THE ISSUANCE OF THE CERTIFICATES, THE STAFF SECTION OF
CERTIFICATES OBVIOUSLY HAD MADE AN INADVERTENT ERROR IN TRANSPOSING THE
RELEVANT FINDINGS. 

THE FULL COMMISSION, AFTER ORAL ARGUMENT, STRESSED ANOTHER ASPECT OF
THE MATTER IN AFFIRMING THE ACTION OF THE DIVISION.  IN ITS VIEW, THE
FINDINGS OF THE FINANCE PROCEEDINGS WHICH SPECIFICALLY AUTHORIZED
APPELLEE'S PURCHASES, SUBJECT TO THE STATED LIMITATIONS, COULD NOT BE
CHANGED TO ELIMINATE SUCH LIMITATIONS WITHOUT A FORMAL PROCEEDING AT
WHICH OPPONENTS OF THE UNLIMITED APPLICATION COULD BE HEARD.  EACH
OPINION WITHIN THE COMMISSION THUS FOUND THAT THE OMISSION FROM THE
CERTIFICATES OF THE STATED RESERVATIONS HAD BEEN DUE TO CLERICAL
INADVERTENCE WHICH SHOULD BE CORRECTED.  THESE CORRECTIONS WERE
ORDERED, AND IN ADDITION SPECIFIED CONDITIONS WERE IMPOSED CONSISTENT
WITH THE RESERVATIONS. 

APPELLEE, DISSATISFIED WITH THE COMMISSION'S FINAL ORDER, COMMENCED
AN ACTION BEFORE A SPECIALLY CONVENED THREE-JUDGE DISTRICT COURT TO
HAVE THE ORDER SET ASIED.  28 U.S.C. SEC. 2321 ET SEQ. APPELLEE ARGUED,
AND A MAJORITY OF THE COURT CONCLUDED, OVER A DISSENT OF ONE OF ITS
MEMBERS, THAT UNDER UNITED STATES V. WATSON BROS. TRANSPORTATION CO.,
350 U.S. 927, THE COMMISSION WAS WITHOUT POWER TO ORDER MODIFICATION OF
THE UNCONDITIONAL CERTIFICATES ISSUED TO APPELLEE.  FURTHER, THE COURT
HELD THAT THE RECORD LACKED SUBSTANTIAL EVIDENCE TO SUPPORT THE
COMMISSION FINDING THAT THE RELEVANT RESTRICTIONS WERE OMITTED FROM THE
CERTIFICATES DUE TO INADVERTENCY.  153 F. SUPP. 572.  WE DISAGREE WITH
BOTH OF THESE CONCLUSIONS. 

                                I. 

IT IS WELL SETTLED THAT THE COMMISSION HAS THE POWER TO RESERVE IN
CERTIFICATES ISSUED TO A RAIL-AFFILIATED MOTOR CARRIER THE RIGHT TO
IMPOSE SPECIFIC CONDITIONS TO ASSURE THAT THE CARRIER'S OPERATIONS WILL
BE "AUXILIARY OR SUPPLEMENTARY" TO THE RAIL SERVICES OF ITS AFFILIATE. 
UNITED STATES V. ROCK ISLAND MOTOR TRANSIT CO., 340 U.S. 419.  (FN5)
IN THAT CASE A CERTIFICATE, WHICH CONTAINED A RESERVATION SIMILAR TO
THE ONE AT QUESTION HERE, WAS ISSUED IN 1941. 

THE REASON FOR THE RESERVATION IS OBVIOUS.  CONGRESS, IN SEC. 5(2)(B)
OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 5(2)(B), (FN6) HAS
LIMITED THE ACQUISITION OF MOTOR CARRIER FRANCHISES BY RAIL CARRIERS OR
THEIR AFFILIATES TO SITUATIONS WHERE THE ACQUISITION WILL ENABLE THE
RAIL CARRIER TO USE SERVICE BY MOTOR CARRIER TO PUBLIC ADVANTAGE.  THE
COMMISSION HAS LONG INTERPRETED THIS MANDATE TO CONFINE SUCH
ACQUISITIONS TO "OPERATIONS WHICH ARE AUXILIARY OR SUPPLEMENTARY TO
TRAIN SERVICE," AT LEAST IN THE ABSENCE OF SPECIAL CIRCUMSTANCES WHICH
MIGHT JUSTIFY LESS RESTRICTED OPERATIONS.  AMERICAN TRUCKING ASSNS.  V.
UNITED STATES, 355 U.S. 141, 148, N. 8.  TO ACCOMPLISH THIS
CONGRESSIONAL PURPOSE, THE COMMISSION CAN EITHER STATE IN THE
CERTIFICATE THE CONDITIONS NECESSARY TO PROVIDE THE LIMITATION OR
RESERVE THE RIGHT TO IMPOSE CONDITIONS SHOULD THE NECESSITY ARISE. 
UNITED STATES V. ROCK ISLAND MOTOR TRANSIT CO., SUPRA. 

HERE, AS THE RECORD SHOWS, APPELLEE SOUGHT THE RIGHT TO CARRY ON
UNRESTRICTED OPERATIONS OVER ALL THE ROUTES WHICH IT WAS ACQUIRING.  IN
SOME INSTANCES, THE COMMISSION APPROVED UNCONDITIONED OPERATIONS FOR
REASONS WHICH DO NOT APPEAR IN THE RECORD.  IN OTHERS, HOWEVER,
INCLUDING THE FOUR ROUTES HERE AT ISSUE, APPROVAL OF ONLY CONDITIONAL
SERVICE WAS GRANTED.  SUCH APPROVAL WAS CONSISTENT WITH APPELLEE'S
REPRESENTATIONS THAT ACQUISITION OF THE ROUTES WOULD ENABLE IT TO GIVE
SERVICE WHICH SUPPLEMENTED THE OPERATIONS OF ITS RAIL-CARRIER PARENT. 
IN FACT, THE LIMITED APPROVAL DID NOT APPEAR INCONSISTENT WITH
APPELLEE'S PLANS, FOR IT TOOK NO APPEAL FROM THE DIVISION REPORT
ADOPTING THE ORDER OF THE COMMISSION EXAMINER WHICH CLEARLY STATED THAT
THE COMMISSION RESERVED THE RIGHT TO IMPOSE FUTURE CONDITIONS.  AND
APPELLEE CONSUMMATED THE PROPOSED PURCHASES WITHIN THIRTY DAYS OF THE
DIVISION REPORT.  UNDOUBTEDLY, THEREFORE, AT THE TIME OF THE FINANCE
PROCEEDINGS, THE COMMISSION AUTHORIZED LIMITED OPERATIONS ON THE ROUTES
IN QUESTION, TO WHICH APPELLEE ACCEDED. 

BETWEEN TWO AND FOUR YEARS LATER, THE COMMISSION ISSUED CERTIFICATES
TO APPELLEE WHICH DID NOT CONTAIN THE RESERVATION.  THE QUESTION
ARISES, THEREFORE, WHETHER THE OMISSION OF THE RESTRICTIONS FROM THE
CERTIFICATES WAS DUE TO A CONSCIOUS POLICY CHOICE ON THE PART OF THE
COMMISSION OR, AS FOUND BY IT, TO ERROR IN THE ADMINISTRATIVE PROCESS
OF FASHIONING THE CERTIFICATES.  CERTAINLY A CONCLUSION MUST BE BASED
ON ONE OR THE OTHER OF THESE ALTERNATIVES BECAUSE, AS IS OBVIOUS FROM
THE FINDINGS OF DIVISION 5 AS WELL AS THE FULL COMMISSION, THE STAFF
EXERCISE DISCRETION IN CHANGING THE FINDINGS, ORDERS AND AUTHORIZATIONS
CONTAINED IN THE COMMISSION REPORTS.    THE MAJORITY BELOW CONCLUDED
THAT THE OMISSIONS RESULTED FROM A POLICY CHANGE, AND THAT THE
SUBSEQUENT REOPENING OF THE PROCEEDINGS AND CONDITIONING OF THE
CERTIFICATES WAS AN ATTEMPT TO RESTRICT APPELLEE'S OPERATION ON THE
BASIS OF NEWLY DEVELOPED POLICIES.  THE RECORD DOES NOT SUPPORT THIS
CONCLUSION.  THE DISTRICT COURT BELIEVED IT SIGNIFICANT THAT DIVISION 5
ONLY ADOPTED THE RECOMMENDATIONS OF A HEARING EXAMINER RATHER THAN
AUTHORING APPROVAL ORDERS OF ITS OWN.  ADDITIONALLY, THE COURT FOUND
SPECIAL MEANING IN THE FACT THAT ONE OF THE CERTIFICATES ISSUED TO
APPELLEE CONTAINED THE RELEVANT RESERVATION WHILE THE ONES IN ISSUE DID
NOT.  (FN7)  FURTHER, THE COURT VIEWED THE ISSUANCE OF UNRESTRICTED
CERTIFICATES AFTER THE COMMENCEMENT OF THE RELATED CARRIER PROCEEDINGS
IN 1941 AS ESPECIALLY IMPORTANT.  VIEWING THESE FACTS, THE COURT
REFUSED TO ACCEPT THE MAJORITY CONCLUSION OF INADVERTENCE. 

IN OUR VIEW, HOWEVER, THE COMMISSION CONCLUSION IS WELL SUPPORTED. 
FIRST, WE SEE NO SPECIAL SIGNIFICANCE IN THE FACT THAT DIVISION 5
ADOPTED, WITHOUT MODIFICATION, THE HEARING EXAMINER'S RECOMMENDATIONS. 
UNDER THE PRACTICES OF THE COMMISSION, THIS IS NOT UNUSUAL, SEE, E.G.,
53 M.C.C. 97; 53 M.C.C. 117; 46 M.C.C. 328; AND THE HEARING EXAMINER'S
REPORT MADE IT CLEAR THAT APPELLEE'S OPERATIONS WERE TO BE
CIRCUMSCRIBED.  SECOND, THERE IS NOTHING IN THE RECORD OR IN THE
DISSENTING OPINIONS OF THE COMMISSION TO INDICATE THAT THE COMMISSION,
OR A DIVISION, OR ANY COMMISSIONER INSTRUCTED THE STAFF TO DELETE THE
RESTRICTIONS AND INCREASE THE SCOPE OF APPELLEE'S OPERATIONS.  THIS
FACTOR MILITATES STRONGLY IN FAVOR OF THE COMMISSION'S CONCLUSION THAT
THE RESERVATIONS INADVERTENTLY WERE OMITTED, PARTICULARLY WHEN IT WOULD
HAVE BEEN IMPROPER FOR THE COMMISSION TO CHANGE ITS DECISION WITHOUT
NOTICE TO THE PROTESTANTS WHO HAD APPEARED BEFORE THE HEARING EXAMINER
IN OPPOSITION AT THE ORIGINAL FINANCE PROCEEDINGS AND HAD TAKEN
EXCEPTION TO AT LEAST ONE OF THE PURCHASES.  49 U.S.C. SEC. 5(2)(B); 5
U.S.C. SEC. 1004.  CF. FEDERAL COMMUNICATIONS COMM'N V. NATIONAL
BROADCASTING CO. (KOA), 319 U.S. 239.  THIRD, THE ISSUANCE OF ONE
RESTRICTED CERTIFICATE IS NOT INCONSISTENT WITH THE COMMISSION FINDING
BECAUSE, HAD THE COMMISSION CHANGED ITS POLICIES, IT LIKELY WOULD HAVE
TREATED THE ROUTE THERE INVOLVED SIMILARLY TO THE FOUR ROUTES IN
QUESTION.  IN FACT, THE ISSUANCE OF THIS RESTRICTED CERTIFICATE REALLY
SUPPORTS THE CONCLUSION THAT THE OTHERS WERE NOT ISSUED BECAUSE OF A
CHANGE OF POLICY.  ALSO, THE COMMISSION'S EXPOSITION OF ITS INTERNAL
PROCEDURES SHOWS HOW THE ERROR COULD EASILY HAVE OCCURRED.  FINALLY, AS
THE DISSENT BELOW POINTS OUT, AT THE TIME THESE CERTIFICATES WERE
ISSUED, THE STAFF SECTIONS OF THE COMMISSION NORMALLY DEALT WITH
CERTIFICATES AUTHORIZING UNRESTRICTED SERVICE BY NON-RAIL-AFFILIATED
MOTOR CARRIERS.  THE CERTIFICATES ISSUED HERE WERE, THEREFORE, UNUSUAL,
AND IT IS EASY TO SEE HOW THE RESTRICTIONS WERE OMITTED.  153 F. SUPP.
572, 578-579.  UNDER ALL THESE CIRCUMSTANCES, THE CONCLUSION OF THE
COMMISSION WAS COMPELLED BY THE RECORD. 

APPELLEE COMPLAINS THAT THE COMMISSION, OR AT LEAST DIVISION 5,
IMPROPERLY TOOK OFFICIAL NOTICE OF THE INTERNAL ADMINISTRATIVE
PRACTICES AND PROCEDURES OF THE COMMISSION.  THE FIRST FULL EXPOSITION
OF THESE PROCEDURES APPEARED IN THE REPORT OF DISISION 5 IN THE
REOPENED PROCEEDINGS, ALTHOUGH CERTAIN OF THEM HAD BEEN MENTIONED IN
THE HEARING EXAMINERS' REPORTS.  APPELLEE CLAIMS THAT THE COMMISSION
HAD TO DISCLOSE THESE PROCEDURES AT THE HEARING SO THAT IT WOULD HAVE A
CHANCE TO REBUT UNFAVORABLE INFERENCES WHICH MIGHT BE DRAWN FROM THEM. 
BUT WE FAIL TO SEE WHAT PREJUDICE COULD HAVE ACCRUED FROM TAKING
OFFICIAL NOTICE OF THE PRACTICES, FOR APPELLEE HAD ADEQUATE OPPORTUNITY
TO REBUT INFERENCES DRAWN FROM THEM ON ITS ARGUMENT TO THE FULL
COMMISSION.  UNITED STATES V. PIERCE AUTO FREIGHT LINES, 327 U.S. 515. 
PARTICULARLY IS THIS TRUE WHERE THERE IS NO SHOWING THAT THE PROCEDURES
WERE MISSTATED TO APPELLEE'S PREJUDICE.  THIS IS NOT A CASE LIKE OHIO
BELL TELEPHONE CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292, OR UNITED
STATES V. ABILENE & SOUTHERN R. CO., 265 U.S. 274, WHERE THE "FACTS"
OFFICIALLY NOTICED WERE IN DOUBT OR CONTROVERTED OR WERE DISCUSSED FOR
THE FIRST TIME IN THE FINAL DECISION OF THE COMMISSION. 

          II. 

THE REMAINING QUESTION IS WHETHER THE COMMISSION HAS THE POWER TO
MODIFY CERTIFICATES ISSUED DUE TO INADVERTENCE.  THIS COURT HAS, ON ONE
OCCASION, RESERVED THIS QUESTION IN A CASE WHRERE IT DETERMINED THAT
INADVERTENCE WAS NOT THE REASON FOR THE FAILURE TO ISSUE A PROPER
CERTIFICATE.  UNITED STATES V. SEATRAIN LINES, 329 U.S. 424.  AND ON
ANOTHER OCCASION, IN AFFIRMING THE DECISION OF A THREE-JUDGE COURT, WE
RULED THAT THE POWER, IF ANY, MAY ONLY BE EXERCISED AFTER PROPER
OPPORTUNITY FOR NOTICE AND HEARING.  UNITED STATES V. WATSON BROS.
TRANSPORTATION CO., 350 U.S. 927. 

IT IS AXIOMATIC THAT COURTS HAVE THE POWER AND THE DUTY TO CORRECT
JUDGMENTS WHICH CONTAIN CLERICAL ERRORS OR JUDGMENTS WHICH HAVE BEEN
ISSUED DUE TO INADVERTENCE OR MISTAKE.  GAGNON V. UNITED STATES, 193
U.S. 451.  RULE 60(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE
RECOGNIZES THIS POWER AND SPECIFICALLY PROVIDES THAT "CLERICAL MISTAKES
IN JUDGMENTS, ORDERS OR OTHER PARTS OF THE RECORD AND ERRORS THEREIN
ARISING FROM OVERSIGHT OR OMISSION MAY BE CORRECTED BY THE COURT AT ANY
TIME OF ITS OWN INITIATIVE OR ON THE MOTION OF ANY PARTY AND AFTER SUCH
NOTICE, IF ANY, AS THE COURT ORDERS."  A SIMILAR POWER IS VESTED IN THE
INTERSTATE COMMERCE COMMISSION.  SECTION 17(3) OF THE ACT CREATING THE
COMMISSION, 49 U.S.C. SEC. 17(3), PROVIDES THAT:  "THE COMMISSION SHALL
CONDUCT ITS PROCEEDINGS UNDER ANY PROVISION OF LAW IN SUCH MANNER AS
WILL BEST CONDUCE TO THE PROPER DISPATCH OF BUSINESS AND TO THE ENDS OF
JUSTICE."  THIS BROAD ENABLING STATUTE, IN OUR OPINION, AUTHORIZES THE
CORRECTION OF INADVERTENT MINISTERIAL ERRORS.  TO HOLD OTHERWISE WOULD
BE TO SAY THAT ONCE AN ERROR HAS OCCURRED THE COMMISSION IS POWERLESS
TO TAKE REMEDIAL STEPS.  THIS WOULD NOT, AS CONGRESS PROVIDED, "BEST
CONDUCE TO THE ENDS OF JUSTICE."  IN FACT, THE PRESENCE OF AUTHORITY IN
ADMINISTRATIVE OFFICERS AND TRIBUNALS TO CORRECT SUCH ERRORS HAS LONG
BEEN RECOGNIZED - PROBABLY SO WELL RECOGNIZED THAT LITTLE DISCUSSION
HAS ENSUED IN THE REPORTED CASES.  BELL V. HEARNE, 19 HOW.  252. 
(FN8) 

OF COURSE, THE POWER TO CORRECT INADVERTENT MINISTERIAL ERRORS MAY
NOT BE USED AS A GUISE FOR CHANGING PREVIOUS DECISIONS BECAUSE THE
WISDOM OF THOSE DECISIONS APPEARS DOUBTFUL IN THE LIGHT OF CHANGING
POLICIES.  SUCH WAS THE CASE IN UNITED STATES V. SEATRAIN LINES, SUPRA,
WHERE IT WAS APPARENT THAT THE COMMISSION HAD NOT REOPENED PRIOR
PROCEEDINGS TO CORRECT A MISTAKE IN THE ISSUANCE OF A CERTIFICATE BUT
TO EXECUTE A SUBSEQUENTLY ADOPTED POLICY.  CF. WATSON BROS.
TRANSPORTATION CO. V. UNITED STATES, 132 F. SUPP. 905 (D.C. NEB.),
AFF'D 350 U.S. 927.  TO ALLOW THE REOPENING OF PROCEEDINGS IN SUCH A
CASE UNDER THE PRETEXT OF CORRECTION WOULD UNDERCUT THE OBVIOUS PURPOSE
OF SEC. 212 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 312, WHICH
MAKES THE ISSUANCE OF A CERTIFICATE THE FINAL STEP IN THE
ADMINISTRATIVE PROCESS.  BUT NOTHING IN THAT SECTION PROHIBITS THE
CORRECTION OF INADVERTENT ERRORS.  HERE, AS WE HAVE SHOWN, THE
CERTIFICATES ISSUED TO APPELLEE MISTAKENLY OMITTED AN INTENDED
PROVISION, AND THE COMMISSION'S SUBSEQUENT ACTION WAS NOT THE EXECUTION
OF A NEWLY ADOPTED POLICY BUT, AS IT FOUND IN A PROCEEDING IN WHICH
APPELLANTS PARTICIPATED AFTER NOTICE, MERELY THE CORRECTION OF THE
INADVERTENCE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED. 

FN1  THE MOTOR CARRIER ACT OF 1935, SEC. 213, 49 STAT. 556,
CONDITIONED ACQUISITIONS AS FOLLOWS: "PROVIDED, HOWEVER, THAT IF A
CARRIER OTHER THAN A MOTOR CARRIER IS AN APPLICANT, OR ANY PERSON WHICH
IS CONTROLLED BY SUCH A CARRIER OTHER THAN A MOTOR CARRIER OR
AFFILIATED THEREWITH WITHIN THE MEANING OF SECTION 5(8) OF PART I, THE
COMMISSION SHALL NOT ENTER SUCH AN ORDER UNLESS IT FINDS THAT THE
TRANSACTION PROPOSED WILL PROMOTE THE PUBLIC INTEREST BY ENABLING SUCH
CARRIER OTHER THAN A MOTOR CARRIER TO USE SERVICE BY MOTOR VEHICLE TO
PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN
COMPETITION." 

FN2  THE COMMISSION HAS LONG INTERPRETED THE LANGUAGE OF SEC.
5(2)(B), QUOTED ABOVE, TO CONFINE ACQUISITIONS OF MOTOR CARRIERS BY
RAILROADS OR THEIR AFFILIATES TO OPERATIONS WHICH ARE AUXILIARY OR
SUPPLEMENTARY TO THE TRAIN SERVICE OF THE RAILROAD.  SEE AMERICAN
TRUCKING ASSNS.  V. UNITED STATES, 355 U.S. 141, 148. 

FN3  CAMPBELL SIXTY-SIX EXPRESS, INC., V. FRISCO TRANSPORTATION CO.,
43 M.C.C. 641. 

FN4  CAMPBELL SIXTY-SIX EXPRESS, INC., V. FRISCO TRANSPORTATION CO.,
46 M.C.C. 222. 

FN5  THE APPELLANTS IN NOS. 15 AND 16, AMERICAN TRUCKING
ASSOCIATIONS, INC., AND RAILWAY LABOR EXECUTIVES' ASSOCIATION, URGE US
TO HOLD THAT THE COMMISSION WAS WITHOUT POWER TO ISSUE UNCONDITIONED
CERTIFICATES TO APPELLEE BECAUSE OF THE REQUIREMENTS OF SEC. 5(2)(B)
AND, THEREFORE, THE CERTIFICATES ISSUED TO APPELLEE WERE VOID.  WE HAVE
NOT HAD OCCASION TO RULE DEFINITIVELY WHETHER THAT SECTION STATES RIGID
REQUIREMENTS THAT OPERATIONS OF RAIL-AFFILIATED MOTOR CARRIERS BE
AUXXILIARY OR SUPPLEMENTARY TO TRAIN SERVICE.  CF.  AMERICAN TRUCKING
ASSNS.  V. UNITED STATES, 355 U.S. 141.  AS RESOLUTION OF THE QUESTION
IS UNNECESSARY FOR THE PRESENT DECISION, WE INTIMATE NO POSITION WITH
REGARD TO IT. 

FN6  SEE MOTOR CARRIER ACT OF 1935, SEC. 213, 49 STAT. 556. 

FN7  THE REOPENED PROCEEDINGS ORIGINALLY INVOLVED SIX ROUTES.  THE
CERTIFICATE COVERING ONE OF THESE CONTAINED A RESERVATION OF AUTHORITY,
AND CONDITIONS IMPOSED IN CONNECTION WITH THAT ROUTE ARE NOT AT ISSUE
HERE.  ON ANOTHER ROUTE, THE COMMISSION'S ORIGINAL APPROVAL WAS
UNCONDITIONAL AS WAS THE CERTIFICATE ISSUED IN CONNECTION WITH IT.  THE
COMMISSION HAS ABANDONED EFFORTS TO IMPOSE NEW CONDITIONS ON THIS
ROUTE. 

FN8 SEE ALSO DAVIS, ADMINISTRATIVE LAW (1951), 600.  AND THE AGENCIES
HAVE PRESUMED THE EXISTENCE OF SUCH POWER.  SEE KENOSHA AUTO TRANSPORT
CORPORATION - INTERPRETATION OF CERTIFICATE, 53 M.C.C. 85; PETROLEUM
CARRIER CORP. V. R.Q. BLACK, DOING BUSINESS AS SUPERIOR TRUCKING CO.,
51 M.C.C. 717; GREYHOUND CORPORATION EXTENSION OF OPERATIONS - SLIDELL,
LA., 47 M.C.C. 103; SANTA FE TRAIL TRANSPORTATION COMPANY EXTENSION OF
OPERATIONS - NEW MEXICO POINTS, 46 M.C.C. 775; PAN AMERICAN AIRWAYS,
INC., NORTH ATLANTIC ROUTE AMENDMENTS, 7 C.A.B. 849. 
..END :






FLAXER V. UNITED STATES 358 U.S. 147 


NO. 60.  ARGUED NOVEMBER 19, 1958 - DECIDED DECEMBER 15, 1958 - 103 U.S.
APP. D.C. 319, 258 F.2D 413, REVERSED. 


PETITIONER, PRESIDENT OF A LABOR UNION, WAS SUBPOENAED TO APPEAR ON
OCTOBER 5, 1951, BEFORE THE SENATE SUBCOMMITTEE ON INTERNAL SECURITY
AND TO PRODUCE CERTAIN OF THE UNION'S RECORDS, INCLUDING LISTS OF ITS
MEMBERS WHO WERE EMPLOYED BY THE FEDERAL GOVERNMENT OR BY ANY STATE,
COUNTY OR MUNICIPAL GOVERNMENT.  HE APPEARED ON THAT DATE AND PRODUCED
SOME OF THE RECORDS BUT NOT THE LISTS OF MEMBERS.  THE SENATOR WHO
CONDUCTED THE HEARING DIRECTED HIM TO PRODUCE THE RECORDS "ACCORDING TO
THE TERMS OF THE SUBPOENA."  LATER, AFTER A COLLOQUY, THE SENATOR SAID,
"SINCE YOU HAVE MADE THE REPLY THAT IT COULD BE DONE IN A WEEK, THAT
WILL BE THE ORDER OF THE COMMITTEE, THAT YOU SUBMIT THAT INFORMATION AS
REQUESTED BY COUNSEL FOR THE COMMITTEE WITHIN 10 DAYS FROM THIS DATE." 
PETITIONER WAS INDICTED UNDER 2 U.S.C. SEC. 192 FOR WILLFULLY FAILING
TO PRODUCE THE LISTS ON OCTOBER 5, 1951.  HELD:  SINCE PETITIONER WAS
NOT CLEARLY APPRISED THAT HE WAS REQUIRED TO PRODUCE THE LISTS ON
OCTOBER 5 RATHER THAN AT A LATER TIME, THERE WAS NO DEFAULT ON OCTOBER
5, AND THE DISTRICT COURT SHOULD HAVE DIRECTED AN ACQUITTAL.  PP. 147
152. 

FLAXER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS FOUND GUILTY, AFTER JURY TRIAL, OF FAILURE TO PRODUCE,
PURSUANT TO A SUBPOENA DUCES TECUM ISSUED BY A SUBCOMMITTEE OF A SENATE
COMMITTEE, (FN1) RECORDS OF A UNION (FN2) SHOWING THE NAMES AND
ADDRESSES OF MEMBERS OF THAT ORGANIZATION WHO WERE EMPLOYED EITHER BY
THE UNITED STATES OR BY ANY STATE, COUNTY, OR MUNICIPAL GOVERNMENT IN
THE COUNTRY.  (FN3)  THE DISTRICT COURT DENIED A MOTION FOR ACQUITTAL
OR NEW TRIAL.  112 F. SUPP. 669.  THE COURT OF APPEALS, SITTING EN
BANC, AFFIRMED BY A DIVIDED VOTE.  98 U.S. APP. D.C. 324, 235 F.2D
821.  ON PETITION FOR A WRIT OF CERTIORARI WE VACATED AND REMANDED FOR
CONSIDERATION IN LIGHT OF WATKINS V. UNITED STATES, 354 U.S. 178, AN
INTERVENING DECISION.  354 U.S. 929.  THE COURT OF APPEALS, SITTING EN
BANC, ONCE MORE AFFIRMED BY A DIVIDED VOTE.  103 U.S. APP. D.C. 319,
258 F.2D 413.  WE AGAIN GRANTED CERTIORARI.  357 U.S. 904. 

THE SENATE COMMITTEE ON THE JUDICIARY OR A DULY AUTHORIZED
SUBCOMMITTEE WAS AUTHORIZED (FN4) TO INVESTIGATE THE ADMINISTRATION,
OPERATION, AND ENFORCEMENT OF THE INTERNAL SECURITY ACT OF 1950.  (FN5)
THE COMMITTEE CREATED A SUBCOMMITTEE WHICH ADOPTED A RESOLUTION TO THE
EFFECT THAT A SINGLE MEMBER WOULD CONSTITUTE A QUORUM FOR THE PURPOSE
OF TAKING TESTIMONY. 

PETITIONER WAS HEAD OF THE UNION UNDER INVESTIGATION.  THE CHAIRMAN
ISSUED A SUBPOENA DUCES TECUM DIRECTING HIM TO PRODUCE, INTER ALIA, THE
NAMES AND ADDRESSES OF THE UNION MEMBERS MENTIONED ABOVE.  PETITIONER
APPEARED BEFORE SENATOR WATKINS, SITTING AS THE SUBCOMMITTEE, AND
PRODUCED SOME OF THE RECORDS OF THE UNION; BUT HE FAILED TO PRODUCE THE
MEMBERSHIP LISTS.  HE MADE SEVERAL OBJECTIONS TO DISCLOSURE OF THEM,
MAINTAINING THAT THEY WERE PROTECTED BY A RIGHT OF PRIVACY.  HE DID NOT
MAINTAIN THAT THE LISTS WERE UNAVAILABLE TO HIM.  INDEED, HE RESPONDED
TO FURTHER INTERROGATION, GIVING THE APPROXIMATE NUMBER OF MEMBERS AND
INDICATING THAT ABOUT 5 PERCENT WERE IN THE EMPLOY OF THE FEDERAL
GOVERNMENT, THE BALANCE BEING IN STATE, COUNTY, AND MUNICIPAL
GOVERNMENTS.  HE ALSO NAMED THE FEDERAL AGENCIES WHERE THE BULK OF THE
5 PERCENT WERE EMPLOYED.  BUT HE PERSISTED IN HIS REFUSAL TO PRODUCE
THE LISTS.  AT THIS POINT IN THE INTERROGATION SENATOR WATKINS SAID:
"YOU ARE DIRECTED BY THE COMMITTEE TO PRODUCE THOSE RECORDS ACCORDING
TO THE TERMS OF THE SUBPENA." 

PETITIONER CONTINUED TO STATE HIS OBJECTIONS. 

COMMITTEE COUNSEL ASKED PETITIONER HOW LONG IT WOULD TAKE HIM TO
PREPARE THE LISTS.  PETITIONER FINALLY SAID, "I IMAGINE IT COULD BE
DONE IN A WEEK." 

COMMITTEE COUNSEL THEN SAID: 

"I RESPECTFULLY SUGGEST TO THE CHAIRMAN THAT THE WITNESS BE ORDERED
TO PRODUCE THE INFORMATION AND TRANSMIT IT TO THE SUBCOMMITTEE IN 10
DAYS' TIME." 

SENATOR WATKINS REPLIED: 

"SINCE YOU HAVE MADE THE REPLY THAT IT COULD BE DONE IN A WEEK, THAT
WILL BE THE ORDER OF THE COMMITTEE, THAT YOU SUBMIT THAT INFORMATION AS
REQUESTED BY COUNSEL FOR THE COMMITTEE WITHIN 10 DAYS FROM THIS DATE. 
THE RECORD WILL SHOW THAT YOU OF COURSE HAVE BEEN GIVEN THAT NOTICE AND
THAT REQUIREMENT HAS BEEN MADE, AND THE ORDER HAS BEEN MADE." 

PETITIONER CONTINUED TO OBJECT TO ANY ORDER OF PRODUCTION.  THEN THE
COLLOQUY CONTINUED AS FOLLOWS: 

"SENATOR WATKINS.  WHATEVER YOUR ARGUMENT IS, THAT IS THE ORDER NOW,
AND, AS I UNDERSTAND IT, YOU REFUSE TO DO SO ON THE GROUND YOU SET
FORTH.  I WANT TO MAKE THE RECORD CLEAR. 

"MR. FLAXER.  I HAVEN'T GOT THEM.  I DON'T FEEL CAPABLE OF PRODUCING
THEM. 

"SENATOR WATKINS.  YOU SAID YOU COULD DO IT WITHIN A WEEK. 

"MR. FLAXER.  NO; THAT WAS NOT THE QUESTION HE ASKED.  HE ASKED COULD
THE LIST BE COMPILED WITHIN A WEEK AND I SAID IT COULD. 

"MR. ARENS.  THE INFORMATION IS AVAILABLE TO YOU? 

"MR. FLAXER.  YES. 

"MR. ARENS.  BUT YOU HAVE DECLINED TO PRODUCE IT; IS THAT CORRECT? 

"MR. FLAXER.  I HAVEN'T PRODUCED THEM. 

"MR. ARENS.  WILL YOU PRODUCE IT PURSUANT TO THE ORDER OF THE
CHAIRMAN OF THIS SESSION WITHIN 10 DAYS FROM TODAY? 

"MR. FLAXER.  I WILL HAVE TO TAKE THAT UNDER CONSIDERATION. 

"SENATOR WATKINS.  THAT IS THE ORDER, AND OF COURSE WE WILL HAVE TO
TAKE WHATEVER STEPS ARE NECESSARY IF AT THE END OF THE TIME YOU HAVE
NOT PRODUCED THEM." 

THESE EVENTS TRANSPIRED ON OCTOBER 5, 1951.  THAT WAS THE RETURN DATE
OF THE SUBPOENA DUCES TECUM.   AND EACH OF THE TWO COUNTS OF THE
INDICTMENT NAMED OCTOBER 5, 1951, AS THE DATE OF PETITIONER'S WILLFUL
DEFAULT. 

WE READ THE RECORD AS SHOWING NO DEFAULT ON THAT DATE.  AS WE READ
THE COLLOQUY, PETITIONER, THOUGH ADAMANT IN HIS POSITION, WAS GIVEN 10
DAYS FROM OCTOBER 5, 1951, TO DELIVER THE LISTS.  IT DOES NOT APPEAR
WHETHER AT THE END OF THAT 10-DAY PERIOD ANY ADDITIONAL STEPS WERE
TAKEN AGAINST HIM.  YET, FOR ALL WE KNOW, A WITNESS WHO WAS ADAMANT AND
DEFIANT ON OCTOBER 5 MIGHT BE MEEK AND SUBMISSIVE ON OCTOBER 15. 

WE STATED IN WATKINS V. UNITED STATES, 354 U.S. 178, 208, IN
REFERENCE TO PROSECUTIONS FOR CONTEMPT UNDER THIS ACT THAT "THE COURTS
MUST ACCORD TO THE DEFENDANTS EVERY RIGHT WHICH IS GUARANTEED TO
DEFENDANTS IN ALL OTHER CRIMINAL CASES."  ONE OF THESE GUARANTEES IS
PROOF BEYOND A REASONABLE DOUBT THAT THE REFUSAL OF THE WITNESS WAS
DELIBERATE AND INTENTIONAL, AS QUINN V. UNITED STATES, 349 U.S. 155,
165, HOLDS.  IN THE QUINN CASE THE WITNESS WAS "NEVER CONFRONTED WITH A
CLEAR-CUT CHOICE BETWEEN COMPLIANCE AND NONCOMPLIANCE, BETWEEN
ANSWERING THE QUESTION AND RISKING PROSECUTION FOR CONTEMPT."  ID., AT
166.  THE RULINGS WERE SO IMPRECISE AS TO LEAVE THE WITNESS "TO GUESS
WHETHER OR NOT THE COMMITTEE HAD ACCEPTED HIS OBJECTION."  IBID. 

IN THE PRESENT CASE, THE POSITION OF THE COMMITTEE WAS CLEAR IN ONE
RESPECT:  IT WAS PLAIN IT WANTED THE MEMBERSHIP LISTS.  BUT, TO SAY THE
LEAST, THERE WAS AMBIGUITY IN ITS RULING ON THE TIME OF PERFORMANCE. 
THE WITNESS COULD WELL CONCLUDE, WE THINK, THAT HE HAD 10 DAYS MORE TO
CONSIDER THE MATTER, 10 DAYS TO FACE THE ALTERNATIVE OF COMPLIANCE AS
AGAINST CONTEMPT.  CERTAINLY WE CANNOT SAY THAT PETITIONER COULD TELL
WITH A REASONABLE DEGREE OF CERTAINTY THAT THE COMMITTEE DEMANDED THE
LISTS THIS VERY DAY, NOT 10 DAYS HENCE. 

WE REPEAT WHAT WE SAID IN THE QUINN CASE: 

"GIVING A WITNESS A FAIR APPRISAL OF THE COMMITTEE'S RULING ON AN
OBJECTION RECOGNIZES THE LEGITIMATE INTERESTS OF BOTH THE WITNESS AND
THE COMMITTEE.  JUST AS THE WITNESS NEED NOT USE ANY PARTICULAR FORM OF
WORDS TO PRESENT HIS OBJECTION, SO ALSO THE COMMITTEE IS NOT REQUIRED
TO RESORT TO ANY FIXED VERBAL FORMULA TO INDICATE ITS DISPOSITION OF
THE OBJECTION.  SO LONG AS THE WITNESS IS NOT FORCED TO GUESS THE
COMMITTEE'S RULING, HE HAS NO CAUSE TO COMPLAIN.  AND ADHERENCE TO THIS
TRADITIONAL PRACTICE CAN NEITHER INFLICT HARDSHIP UPON THE COMMITTEE
NOR ABRIDGE THE PROPER SCOPE OF LEGISLATIVE INVESTIGATION."  349 U.S.,
AT 170. 

ON THIS RECORD THE DISTRICT COURT SHOULD HAVE DIRECTED AN ACQUITTAL. 
REVERSED. 

FN1  SUBCOMMITTEE ON INTERNAL SECURITY OF THE SENATE COMMITTEE ON THE
JUDICIARY.  THE SENATE VOTED TO CERTIFY THE COMMITTEE REPORT OF THE
FAILURE TO PRODUCE THE RECORDS TO THE UNITED STATES ATTORNEY FOR THE
PURPOSE OF INITIATING A CONTEMPT PROCEEDING.  S. RES. 295, 82D CONG.,
2D SESS.; 98 CONG. REC. 2500. 

FN2  UNITED PUBLIC WORKERS OF AMERICA. 

FN3  2 U.S.C. SEC. 192 PROVIDES: 

"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 JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, 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 JAIL FOR NOT LESS THAN ONE MONTH NOR
MORE THAN TWELVE MONTHS." 

FN4  S. RES. 366, 81ST CONG., 2D SESS.; 96 CONG. REC. 16872. 

FN5  64 STAT. 987. 
..END :












FLEMMIMG V. FLORIDA CITRUS EXCHANGE 358 U.S. 153 


NO. 27.  ARGUED NOVEMBER 17, 1958 - DECIDED DECEMBER 15, 1958 - 246 F.2D
850, REVERSED. 


UNDER SEC. 406(B) OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, THE
FOOD AND DRUG ADMINISTRATION IN 1939 CERTIFIED AS "HARMLESS AND
SUITABLE FOR USE IN FOOD" A COAL-TAR COLOR WHICH HAS BEEN USED FOR MANY
YEARS IN COLORING ORANGES.  AFTER NEW TESTS IN 1951-1953 HAD SHOWN THAT
THE COLOR HAD TOXIC EFFECTS ON ANIMALS, AND AFTER PUBLIC NOTICE AND
HEARINGS, THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE IN 1955
ORDERED THE COLOR REMOVED FROM THE CERTIFIED LIST.  UNDER SECS. 301 AND
402(C) OF THE ACT, THIS HAD THE EFFECT OF MAKING IT UNLAWFUL TO SHIP IN
INTERSTATE COMMERCE ANY FOOD BEARING OR CONTAINING SUCH COLOR.  THE
SECRETARY DID NOT DETERMINE THAT THE COLOR WAS HARMFUL FOR HUMAN
CONSUMPTION IN THE AMOUNTS USED IN COLORING ORANGES BUT ONLY THAT THE
COLOR ITSELF WAS NOT "HARMLESS AND SUITABLE FOR USE IN FOOD" WITHIN THE
MEANING OF SEC. 406(B), AND HE TOOK THE POSITION THAT HE HAD NO
AUTHORITY TO DETERMINE WHETHER IT WAS "REQUIRED IN THE PRODUCTION" OF
FOOD WITHIN THE MEANING OF SEC. 406(A) OR TO PROMULGATE THEREUNDER A
SAFE TOLERANCE FOR ITS USE ON ORANGES.  IN A REVIEW PROCEEDING UNDER
SEC. 701(F), THE COURT OF APPEALS SET ASIDE THE ORDER INSOFAR AS IT
REMOVED THE CERTIFICATION OF THAT COLOR AS HARMLESS AND SUITABLE FOR
USE AS EXTERNAL COLORING ON ORANGES.  HELD:  THE SECRETARY'S ORDER WAS
LAWFUL, AND THE JUDGMENT IS REVERSED.  PP. 154-168. 

1.  THE SECRETARY'S ORDER REVOKING CERTIFICATION OF THE COLOR UNDER
SEC. 406(B) AS "HARMLESS AND SUITABLE FOR USE IN FOOD" WAS IN
ACCORDANCE WITH THE LANGUAGE AND INTENT OF THE ACT, AND IT MUST BE
SUSTAINED.  PP. 160-165. 

(A)  IN SECS. 402(C) AND 406(B), DEALING SPECIFICALLY WITH COAL-TAR
COLORS, CONGRESS CAREFULLY OUTLINED THE SPECIAL TREATMENT TO BE GIVEN
TO COAL-TAR COLORS:  THE TEST OF CERTIFICATION PROVIDED CONCENTRATES ON
THE COLOR SUBSTANCE ITSELF; IT IS TO BE CERTIFIED ONLY IF IT IS
HARMLESS.  PP. 160-162. 

(B)  THIS SPECIAL METHOD OF DEALING WITH COAL-TAR COLORS RELIEVES THE
SECRETARY FROM SHOWING IN EACH CASE THAT A FOOD CONTAINING THEM RAISES
A POSSIBILITY OF INJURY TO HEALTH; AND IT MAKES NO REQUIREMENT THAT THE
COLORS BE TESTED BY EXPERIMENTAL FEEDING IN THE PROPORTIONS IN WHICH
THEY ARE USED IN SPECIFIC FOOD PRODUCTS.  PP. 162-164. 

(C)  THE EVIDENCE JUSTIFIED THE SECRETARY'S FINDING THAT THE COLOR
HERE INVOLVED WAS POISONOUS.  P. 164, N. 13. 

(D)  IN FORBIDDING THE USE OF COAL-TAR COLORS IN FOODS, THE SECRETARY
IS NOT REQUIRED TO RESTRICT HIS PROHIBITION TO SPECIFIC FOOD USES IN
WHICH THE COLOR IS SHOWN TO HAVE A DELETERIOUS EFFECT.  PP. 164-165. 

2.  THE SECRETARY IS NOT AUTHORIZED BY SEC. 406(A) TO PERMIT THE USE
OF HARMFUL COAL-TAR COLORS IN SPECIFIC FOODS THROUGH A SYSTEM OF
TOLERANCES, SINCE THAT SECTION DOES NOT APPLY TO SEC. 402(C)'S FLAT
PROHIBITION AGAINST THE USE OF UNCERTIFIED COAL-TAR COLORS.  PP. 165
167. 

3.  THAT SPECIAL LEGISLATION HAS PERMITTED THE USE OF THE COLOR HERE
INVOLVED SOLELY IN APPLICATION TO THE SKIN OF ORANGES FOR A TEMPORARY
PERIOD ENDING MARCH 1, 1959, DOES NOT RENDER THIS CASE MOOT OR PREVENT
RESPONDENTS FROM BEING PERSONS "ADVERSELY AFFECTED" BY THE SECRETARY'S
ORDER WITHIN THE MEANING OF SEC. 701(F).  PP. 167-168. 

FLEMMING, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, V. FLORIDA CITRUS
EXCHANGE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

COMMERCIALLY GROWN FLORIDA AND TEXAS ORANGES HAVE FOR MANY YEARS BEEN
COLORED WITH A RED COAL-TAR COLOR.  IN 1939 THE FOOD AND DRUG
ADMINISTRATION, AFTER TESTING AND PURSUANT TO SEC. 406(B) OF THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT, (FN1) CERTIFIED THIS COLOR, FD&C
RED NO. 32 (HEREAFTER RED 32), TO BE HARMLESS AND SUITABLE FOR USE IN
FOOD.  HOWEVER, THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ON
NOVEMBER 10, 1955, ORDERED RED 32 AND TWO OTHER COAL-TAR COLORS TO BE
REMOVED FROM THE CERTIFIED LIST, AFTER NEW TESTS IN 1951-1953 CAST
DOUBT WHETHER RED 32 WAS HARMLESS, AND AFTER PUBLIC HEARINGS WERE HELD
UPON THE MATTER ON NOTICE PUBLISHED IN THE FEDERAL REGISTER.  THE
CONSEQUENCE OF THE SECRETARY'S ORDER WAS THAT UNDER SEC. 402(C) OF THE
ACT (FN2) ANY FOOD BEARING OR CONTAINING SUCH COLORS WOULD BE DEEMED TO
BE ADULTERATED. 

THE VALIDITY OF THE SECRETARY'S ORDER WAS ATTACKED IN PETITIONS UNDER
SEC. 701(F) OF THE ACT (FN3) FILED IN SEVERAL COURTS OF APPEALS (FN4)
BY PERSONS AND ORGANIZATIONS CLAIMING TO BE ADVERSELY AFFECTED.  THE
COURT OF APPEALS FOR THE SECOND CIRCUIT SUSTAINED THE ORDER AGAINST A
GENERAL ATTACK.   CERTIFIED COLOR INDUSTRY COMM. V. SECRETARY OF
HEALTH, EDUCATION AND WELFARE, 236 F.2D 866.  IN THE INSTANT CASE,
(FN5) HOWEVER, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, BY A DIVIDED
VOTE, SET ASIDE THE ORDER (FN6) INSOFAR AS IT REMOVED THE CERTIFICATION
OF RED 32 AS HARMLESS AND SUITABLE FOR USE AS EXTERNAL COLORING ON
FLORIDA AND TEXAS ORANGES.  246 F.2D 850. 

THE SECRETARY DID NOT DETERMINE THAT RED 32 IN THE QUANTITIES USED IN
COLOR-ADDED ORANGES WAS HARMFUL FOR HUMAN CONSUMPTION, BUT RATHER
DETERMINED ON THE BASIS OF THE 1951-1953 TESTS ONLY THAT RED 32 AND THE
OTHER SUSPECT COAL-TAR COLORS WERE TOXIC AND THEREFORE NOT "HARMLESS
AND SUITABLE FOR USE IN FOOD."  THE COURT OF APPEALS HELD THAT THE 1939
FINDING THAT RED 32 WAS HARMLESS "SHOULD NOT BE SUPPLANTED" BY A
CONTRARY FINDING "UNLESS THERE IS EVIDENCE THAT, IN THE AMOUNTS USED,
AND IN THE MANNER OF USE, ORANGES COLORED WITH RED 32 ARE UNSAFE FOR
HUMAN CONSUMPTION."  246 F.2D, AT 861-862.   THE WORD "HARMLESS" WAS
CONSTRUED TO BE A TERM "OF RELATION," PREVENTING THE SECRETARY FROM
DENYING THE CONTINUED USE OF RED 32 IN THE QUANTITIES USED IN COLOR
ADDED ORANGES IN THE ABSENCE OF EVIDENCE THAT SUCH QUANTITIES COULD NOT
BE CONSUMED "WITHOUT RISK OF INJURY OR HARM."  ID., AT 858.  THE COURT
OF APPEALS HELD FURTHER THAT IN LIGHT OF ITS PREMISE THAT "HARMLESS"
WAS A TERM OF RELATION AND BECAUSE TWO CONGRESSIONAL COMMITTEES HAD
FOUND THAT THE PRACTICE OF ADDING THE COLOR TO ORANGES WAS AN ECONOMIC
NECESSITY, IT WOULD BE INCUMBENT UPON THE SECRETARY TO DETERMINE
WHETHER THE USE OF THE COLOR WAS "REQUIRED IN THE PRODUCTION" OF FOOD
WITHIN THE MEANING OF SEC. 406(A), (FN7) AND IF SO, TO PROMULGATE A
SAFE TOLERANCE FOR RED 32 ON ORANGES PURSUANT TO THAT SECTION.  UNTIL
SUCH A TOLERANCE WAS PROMULGATED, THE COURT HELD THAT THE SECRETARY WAS
REQUIRED TO CERTIFY RED 32 AS A SAFE COLOR FOR USE ON ORANGES WITHOUT
ONE.  ID., AT 860-862.  WE GRANTED CERTIORARI TO DETERMINE THIS
CONTROVERSIAL QUESTION OF CONSTRUCTION OF THIS IMPORTANT STATUTE
DESIGNED FOR THE PROTECTION OF THE PUBLIC HEALTH.  356 U.S. 911. 

SENATE AND HOUSE COMMITTEES HAVE REPORTED THAT THE PRACTICE OF ADDING
COLOR IS AN ECONOMIC NECESSITY IN THE PRODUCTION OF FLORIDA AND TEXAS
ORANGES FOR MARKET.  (FN8)  WHEN MATURE ORANGES ARE REMOVED FROM THE
TREE, THEIR SKINS, FOR BOTANICAL REASONS UNNECESSARY TO DETAIL HERE,
ARE FREQUENTLY GREEN IN COLOR.  SINCE THE CONSUMER WOULD BE PRONE
INCORRECTLY TO INTERPRET THIS GREENNESS AS A SIGN OF IMMATURITY,
ORANGES ARE PUT THROUGH A "DEGREENING" PROCESS WHICH INVOLVES EXPOSURE
TO ETHYLENE GAS.  IN THE CASE OF CERTAIN CALIFORNIA ORANGES, THIS GAS
PROCESS IS SUFFICIENT TO TURN A GREEN ORANGE INTO ONE OF THE DESIRED
ORANGE COLOR.  BUT THE DEGREENING PROCESS DOES NOT PRODUCE THE DESIRED
COLOR IN FLORIDA AND TEXAS ORANGES; A LIGHT YELLOW SHADE RESULTS.  THE
MORE DESIRED COLOR IS THEREFORE PRODUCED BY IMMERSING THE ORANGES IN,
OR SPRAYING THEM WITH, A SOLUTION CONTAINING RED 32.   THE EVIDENCE AT
THE HEARINGS HELD BY THE SECRETARY WAS THAT THE PROCESS INFUSES THE
PEEL OF AN ORANGE WITH 0.0017% TO 0.0034% OF RED 32.  OTHER EVIDENCE
INDICATED THAT ORANGES TAKEN AS A WHOLE, AND CANDIED PEEL, MARMALADE
AND ORANGE JUICE WOULD CONTAIN LESS - IN MANY CASES, MUCH LESS - OF THE
COAL-TAR COLOR.  IT IS CONCEDED BY THE SECRETARY THAT THERE IS NO
EVIDENCE THAT THE LEVEL OF INGESTION OF RED 32 INVOLVED IN HUMAN
CONSUMPTION OF COLOR-ADDED ORANGES IS HARMFUL. 

HOWEVER, THE EVIDENCE AT THE SECRETARY'S HEARING DID INDICATE THAT
RED 32 HAD A POISONOUS EFFECT ON ANIMALS.  FEEDING THE COLOR TO RATS IN
QUANTITIES AS SMALL AS 0.1% OF THEIR DIET WAS DELETERIOUS AND OFTEN
FATAL, WITH LIVER DAMAGE AND ENLARGEMENT OF THE HEART IN EVIDENCE.  IN
LARGER QUANTITIES, 1.0% AND 2.0% OF THE DIET, INGESTION OF RED 32 BY
RATS CAUSED DEATH WITHIN TWELVE DAYS AND A WEEK, RESPECTIVELY.  THE
HEALTH OF DOGS TAKING 0.2% OF THE COLOR IN THEIR DIETS DETERIORATED
RAPIDLY; THAT OF THOSE TAKING 0.04% SOMEWHAT MORE SLOWLY, BUT
DEFINITELY; AND ILL EFFECTS WERE INDICATED AT A FEEDING LEVEL AS LOW AS
0.01% OF THE DIET.  NO SAFE LEVEL OF ADMINISTRATION OF RED 32 TO THE
TEST ANIMALS WAS ESTABLISHED.  THESE AND SIMILAR TESTS, INVOLVING THE
ADMINISTRATION OF RED 32 AND THE OTHER COAL-TAR COLORS INVOLVED TO TEST
ANIMALS GENERALLY AS AN ITEM OF DIET, WERE THE BASIS ON WHICH THE
SECRETARY'S ORDER RESTED. 

THE SECRETARY ARGUES THAT THE LEGISLATIVE HISTORY AND THE CONSISTENT
ADMINISTRATIVE INTERPRETATION OF THE ACT ESTABLISH THAT HIS AUTHORITY
TO LIST OR CONTINUE THE LISTING OF COAL-TAR COLORS IS CONFINED TO HIS
AUTHORITY UNDER SEC. 406(B) TO CERTIFY "HARMLESS" COAL-TAR COLORS,
THOSE WHICH ARE WHOLLY INNOCUOUS AND DEMONSTRATED TO BE WITHOUT ADVERSE
PHYSIOLOGICAL EFFECT.  THE ARGUMENT RUNS THAT A TOXIC COAL-TAR COLOR,
SUCH AS THE COURT OF APPEALS AGREED THAT RED 32 WAS, WAS TO BE
PROHIBITED COMPLETELY WITHOUT REGARD TO WHETHER IT MIGHT POSSIBLY BE
USED IN SAFE AMOUNTS ON A PARTICULAR FOOD PRODUCT.  THE SECRETARY
ARGUES FURTHER THAT SINCE CONGRESS MADE KNOWN ITS WILL SPECIFICALLY AND
PRECISELY IN SEC. 406(B) THAT A TOXIC COAL-TAR COLOR, THAT IS, ONE NOT
"HARMLESS," WAS NOT TO BE CERTIFIED UNDER ANY CIRCUMSTANCES, THE
TOLERANCE PROVISIONS OF SEC. 406(A) HAVE NO RELEVANCE TO THE VALIDITY
OF HIS ORDER. 

WE ARE OF THE OPINION THAT THE COURT OF APPEALS ERRED AND THAT ITS
JUDGMENT CANNOT STAND. 

FIRST.  THE PROVISIONS OF SECS. 402(C) AND 406(B) DEALING EXPRESSLY
WITH COAL-TAR COLORS WERE INNOVATIONS IN THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT OF 1938; THERE WERE NO COUNTERPART PROVISIONS IN THE
ORIGINAL 1906 FOOD AND DRUG LEGISLATION.  BY THESE PROVISIONS, CONGRESS
CAREFULLY DISTINGUISHED THE TREATMENT TO BE GIVEN BY THE SECRETARY TO
TOXIC COAL-TAR COLORS.  THE ORIGINAL ACT DEALT GENERALLY WITH POISONOUS
AND OTHER DELETERIOUS SUBSTANCES IN FOOD, AS ARE NOW TREATED UNDER SEC.
402(A), BUT IT DID NOT DEAL SPECIFICALLY WITH COAL-TAR COLORS.  SECTION
7 OF THE ORIGINAL FOOD AND DRUGS ACT, 34 STAT. 769, PROVIDED THAT AN
ARTICLE OF FOOD SHOULD BE DEEMED ADULTERATED "IF IT CONTAIN ANY ADDED
POISONOUS OR OTHER ADDED DELETERIOUS INGREDIENT WHICH MAY RENDER SUCH
ARTICLE INJURIOUS TO HEALTH  ...  ."  THIS COURT HELD IN UNITED STATES
V. LEXINGTON MILL & ELEVATOR CO., 232 U.S. 399, FOLLOWING THE "PLAIN
MEANING" OF THE STATUTORY LANGUAGE, THAT THIS PLACED THE BURDEN UPON
THE GOVERNMENT OF ESTABLISHING THAT THE ADDED SUBSTANCE WAS SUCH AS
MIGHT RENDER THE FOOD TO WHICH IT WAS ADDED INJURIOUS TO HEALTH.  THIS
RULE APPLIED WITHOUT DISTINCTION WHERE COAL-TAR COLORS WERE INVOLVED. 
CONGRESS WAS AWARE OF THE DIFFICULTIES OF THIS TEST WHICH REQUIRED THAT
THE QUESTIONED FOOD PRODUCT BE EVALUATED AS A WHOLE, AND OF THE
EXISTENCE IN THIS AREA OF AN INFORMAL CERTIFICATION PRACTICE UNDER THE
1906 ACT UNDER WHICH NOT FOOD PRODUCTS BUT THE COAL-TAR COLORS
THEMSELVES WERE SUBJECTED TO TEST TO DETERMINE THEIR POISONOUS OR
HARMFUL CHARACTER.  CF. S. REP. NO. 361, 74TH CONG., 1ST SESS., PP. 7
8.  OF COURSE, WHEN LITIGATION OCCURRED, THE LEXINGTON MILL STANDARD
WAS APPLIED.  SEE W.B. WOOD MANUFACTURING CO. V. UNITED STATES, 286 F.
84, 86-87. 

IT WAS AGAINST THIS BACKGROUND THAT THE 1938 STATUTE WAS PROPOSED AND
ENACTED.  IT IS OBVIOUS TO US THAT AN APPROACH DIFFERENT FROM THE RULE
IN LEXINGTON MILL WAS INTENDED BY CONGRESS WHEN IN SEC. 402(C) (FN9)
AND SEC. 406(B) IT ADDRESSED ITSELF TO THE SEVERABLE AND NARROW PROBLEM
OF COAL-TAR COLORS.  THE LANGUAGE INVOLVED IN LEXINGTON MILL SURVIVED
GENERALLY IN THE ACT'S BROADEST AND MOST GENERAL TEST OF FOOD
ADULTERATION, SEC. 402(A)(1).  (FN10)  SECTION 402(C) PROVIDED A
SEPARATE TEST:  THAT A FOOD SHOULD BE DEEMED ADULTERATED "IF IT BEARS
OR CONTAINS A COAL-TAR COLOR OTHER THAN ONE FROM A BATCH THAT HAS BEEN
CERTIFIED IN ACCORDANCE WITH REGULATIONS AS PROVIDED BY SECTION 406
... ."  PLAINLY CONGRESS BANNED ANY ADDITION TO FOODS OF COAL-TAR
COLORS NOT CERTIFIED BY THE SECRETARY.   THE STANDARD ESTABLISHED FOR
THE SECRETARY WAS SET FOURTH IN SEC. 406(B):  "THE SECRETARY SHALL
PROMULGATE REGULATIONS PROVIDING FOR THE LISTING OF COAL-TAR COLORS
WHICH ARE HARMLESS AND SUITABLE FOR USE IN FOOD AND FOR THE
CERTIFICATION OF BATCHES OF SUCH COLORS  ...  ."  THERE APPEARS IN
SENATOR COPELAND'S MEMORANDUM ON THE FIRST OF THE BILLS WHICH LED TO
THE 1938 ACT, S. 1944, 73D CONG., 1ST SESS., WHICH CONTAINED NEW
PROVISIONS ON COAL-TAR COLORS SIMILAR TO THE ONES IN THE ACT AS FINALLY
PASSED, A CLEAR INDICATION THAT ONE OF THE PURPOSES OF THESE PROVISIONS
WAS TO DO AWAY, IN THIS AREA, WITH THE LEXINGTON MILL APPROACH.  77
CONG. REC. 5721.  THIS HAD THE EFFECT OF MAKING THE CERTIFICATION
SYSTEM, IN WHICH ANALYSIS CONCENTRATED ON THE COLOR SUBSTANCES
THEMSELVES, RATHER THAN AN EXAMINATION OF THE EFFECT OF THE USE OF THE
COLORS IN THE CONTEXT OF THE FOOD PRODUCTS INVOLVED, THE CONCLUSIVE
TEST OF ADULTERATION.  THUS IT IS THAT THE TEST OF CERTIFICATION LAID
DOWN IN SEC. 406(B) CONCENTRATES ON THE COLOR SUBSTANCE ITSELF; IT IS
TO BE LISTED ONLY IF IT IS HARMLESS.  THE SECRETARY IS TO ADDRESS
HIMSELF TO THE HARMLESS CHARACTER OF THE SUBSTANCE FIRST; ONCE THIS IS
ASSURED, THE STATUTORY PLAN IS THAT IT MAY BE FREELY USED IN FOODS,
SUBJECT TO THE PROVISIONS OF THE OTHER SECTIONS OF THE ACT.  CLEARLY
SUCH A PLAN IS A RATIONAL ONE TO ASCRIBE TO CONGRESS.  IT IS TRUE THAT
THE ULTIMATE PURPOSE HERE CONCERNED OF THE ADULTERATION PROVISIONS OF
THE ACT IS TO PROTECT HEALTH, AND THAT NO ONE MAKES THE COLOR
SUBSTANCES BY THEMSELVES AN ITEM OF DIET.  BUT IT CERTAINLY WAS
COMPETENT FOR CONGRESS, IN THE LIGHT OF WHAT WERE RECOGNIZED PROBLEMS
TO HEALTH IN THE USE OF SUCH ADDED COLORS, TO ADOPT A RULE OF CAUTION
IN TREATING THIS RECOGNIZED AND DEFINABLE PROBLEM AREA.  THIS RULE OF
CAUTION IS HERE ONE WHICH RELIEVES THE SECRETARY FROM THE BURDEN OF
SHOWING IN EACH CASE THAT A FOOD CONTAINING THEM RAISES A POSSIBILITY
OF INJURY TO HEALTH, AND REQUIRES THAT THE COLOR STUFFS, WHOSE POSITIVE
VALUES ARE ONLY VISUAL AND WHICH ARE NOT NATURALLY FOUND IN FOODS, NOT
BE ADDED UNLESS THEY COULD PASS A HIGHER STANDARD. 

THE SIGNIFICANCE OF SUCH AN APPROACH IS DEMONSTRATED HERE.  NO SAFE
LEVEL FOR INGESTION OF RED 32 HAS BEEN ESTABLISHED, EITHER IN RESPECT
OF HUMANS OR OF ANIMALS.  NO ONE CONTENDS THAT IT IS IMPOSSIBLE THAT
ILL EFFECTS WILL BE EXPERIENCED IN HUMAN BEINGS IF UNRESTRICTED USE OF
THE SUBSTANCE IS PERMITTED IN ARTICLES OF FOOD.  ON THE OTHER HAND, NO
INSTANCE OF A HARMFUL USE OF RED 32 IN A PARTICULAR FOOD WAS
ESTABLISHED IN THE RECORD.  (FN11)  THESE QUESTIONS PRESENT BROAD
INQUIRIES, DIFFICULT OF PROOF, AND DOUBTLESS APT TO BE MORE LONG-DRAWN
OUT IN INVESTIGATION THAN EVEN THE ONES WHICH THE SECRETARY PURSUED. 
YET IS HAS BEEN SHOWN THAT THE COLOR OF ITSELF HAS POISONOUS
PROPERTIES.  IN THE LIGHT OF THE OVER-ALL PURPOSE OF THE ACT, CF.
UNITED STATES V. DOTTERWEICH, 320 U.S. 277, 280, AND THE SPECIFIC TERMS
HERE INVOLVED, IT SEEMS TO US THAT CONGRESS DID NOT INTEND THAT A
VERDICT OF "NOT PROVEN" ON THE QUESTIONS MENTIONED SHOULD PRECLUDE THE
GOVERNMENT FROM PREVENTING THE USE OF SUBSTANCES LIKE THE ONE IN
QUESTION WHEN THEY ARE SHOWN TO HAVE POISONOUS EFFECTS BY THEMSELVES. 

WE ARE NOT PERSUADED BY THE RESPONDENTS' ARGUMENT, ADOPTED BY THE
COURT OF APPEALS, THAT THE WORDS "HARMLESS" AND "POISONOUS" ARE
RELATIVE WORDS, REFERRING NOT TO THE EFFECT OF A SUBSTANCE IN VACUO,
BUT TO ITS EFFECT, TAKEN IN A PARTICULAR WAY AND IN PARTICULAR
QUANTITIES, ON AN ORGANIC SYSTEM.  OF COURSE THIS IS SO, BUT THE
QUESTION BEFORE US CERTAINLY DOES NOT DEPEND ON IT.  THIS IS NOT A CASE
LIKE THE EXAMPLES PUT WHICH REMIND US THAT PURE WATER WOULD BE
DELETERIOUS IF TAKEN AT THE RATE OF FOUR GALLONS AN HOUR OR COMMON
TABLE SALT AT SEVERAL OUNCES.  THE COLOR SUBSTANCES APPEAR TO HAVE BEEN
ADMINISTERED AT TOXICOLOGICALLY SIGNIFICANT LEVELS; THEY PLAYED A
RELATIVELY SMALL PART IN THE DIETS OF THE TEST ANIMALS, GENERALLY LESS,
AND FREQUENTLY MUCH LESS, THAN 1%.  (FN12)  OBVIOUSLY IF THE COLOR
SUBSTANCES THEMSELVES ARE MADE AN ITEM OF DIET IN THE TRIFLING
PERCENTAGES USED ON THE TEST ANIMALS, THEIR EFFECT IS POISONOUS. 
(FN13)  CONGRESS MAY HAVE INTENDED "HARMLESS" IN A RELATIVE SENSE, BUT
WE THINK IT WAS IN RELATION TO SUCH LABORATORY TESTS AS THE ONES THE
SECRETARY PERFORMED THAT CONGRESS WAS SPEAKING WHEN IT REQUIRED THAT
COAL-TAR COLORS BE "HARMLESS."  WE DO NOT BELIEVE THAT CONGRESS
REQUIRED THE SECRETARY FIRST TO ATTEMPT TO ANALYZE THE USES BEING MADE
OF THE COLORS IN THE MARKET PLACE, AND THEN FEED THEM EXPERIMENTALLY
ONLY IN THE PROPORTIONS IN WHICH THEY APPEARED IN CERTAIN OF THE FOOD
PRODUCTS IN WHICH THE COLORS WERE USED.  THIS APPEARS TO BE THE VERY
PROCEDURE ON WHICH CONGRESS TURNED IT BACK IN THE 1938 ACT. 

THE RESPONDENTS CONTEND THAT SINCE THE SECRETARY HIMSELF MAINTAINS
VARIOUS LISTS OF CERTIFIED COLORS, ONE CONTAINING COLORS HARMLESS AND
SUITABLE FOR ALL FOOD, DRUG AND COSMETIC USES, ANOTHER OF COLORS
HARMLESS AND SUITABLE FOR GENERAL USE IN DRUGS AND COSMETICS, AND A
THIRD OF COLORS HARMLESS AND SUITABLE FOR EXTERNAL USE IN DRUGS AND
COSMETICS, 21 CFR SECS. 9.3, 9.4, 9.5, HE HAS RECOGNIZED THAT
"HARMLESS," AS USED IN THE STATUTE, DOES NOT BEAR THE "ABSOLUTE"
MEANING HE IS ALLEGED TO GIVE IT.  FROM THIS IT IS SAID TO FOLLOW THAT
THE SECRETARY MUST, IN FORBIDDING THE USE OF COLORS IN FOODS, RESTRICT
HIS PROHIBITION TO SPECIFIC FOOD USES IN WHICH THE COLOR IS SHOWN TO BE
CAPABLE OF A DELETERIOUS EFFECT.  WE DO NOT DRAW THIS INFERENCE. 
PROVISIONS SIMILAR TO THOSE DEALING WITH THE USE OF COAL-TAR COLORS IN
FOODS ARE REPEATED IN THE PORTIONS OF THE ACT DEALING WITH DRUGS AND
WITH COSMETICS.  SECTION 501(A)(4), 52 STAT. 1049, 21 U.S.C. SEC.
351(A)(4), PROSCRIBES THE USE OF UNCERTIFIED COLORS IN DRUGS FOR THE
PURPOSE OF COLORING, AND REFERS TO SEC. 504, 52 STAT. 1052, 21 U.S.C.
SEC. 354, WHICH AUTHORIZES THE LISTING AND CERTIFICATION OF COAL-TAR
COLORS WHICH ARE "HARMLESS AND SUITABLE FOR USE IN DRUGS."  COMPARABLE
PROVISIONS ARE FOUND WITH RESPECT TO COSMETICS IN SECS. 601(E) AND 604,
52 STAT. 1054, 1055, 21 U.S.C. SECS. 361(E), 364.  IT IS CLEAR FROM
THESE PROVISIONS THAT CONGRESS CONTEMPLATED THAT A COLOR MIGHT BE
HARMLESS IN RESPECT OF DRUGS OR COSMETICS BUT NOT OF FOODS.  AND THE
FACT THAT THE SECRETARY HAS ESTABLISHED A FURTHER CATEGORY,
DISTINGUISHING BETWEEN COLORS INTENDED FOR EXTERNAL AND FOR GENERAL
USE, WE DO NOT THINK INCONSISTENT WITH OUR INTERPRETATION OF THE ACT. 
THESE DISTINCTIONS CAN BE ESTABLISHED THROUGH TESTS RUN ON THE COLOR
SUBSTANCE AS SUCH, IN THE WAY IN WHICH THE SECRETARY HAS CONDUCTED THE
TESTS IN THE MATTER BEFORE US.  IT IS A FAR CRY FROM SAYING THAT THE
ACT PERMITS A GENERIC DISTINCTION CAPABLE OF LABORATORY PROOF, BETWEEN
EXTERNAL AND INTERNAL USES OF A COLOR, TO SAY THAT IT COMMANDS THAT THE
COLORS CANNOT BE INQUIRED OF AT ALL EXCEPT IN THE SPECIFIC CONTEXTS OF
THEIR USE IN FOOD, DRUG AND COSMETIC PRODUCTS. 

SECOND.  BUT EVEN IF THE SECRETARY'S APPROACH OF VIEWING THE
HARMLESSNESS OF COAL-TAR COLORS IN TERMS OF THE COLORS THEMSELVES,
RATHER THAN IN THEIR SPECIFIC APPLICATIONS, IS CORRECT, THE RESPONDENTS
INSIST, AS THE COURT BELOW INDICATED, THAT THE SECRETARY SHOULD
ESTABLISH TOLERANCES FOR THE USE OF COLORS IN FOOD, EVEN THOUGH NOT
FOUND TO BE "HARMLESS."  THE RESPONDENTS POINT TO SEC. 406(A) OF THE
ACT WHICH ALLOWS THE SECRETARY TO ESTABLISH TOLERANCES FOR POISONOUS
SUBSTANCES ADDED TO FOOD WHERE THE SUBSTANCE IS "REQUIRED IN THE
PRODUCTION" OF THE FOOD OR "CANNOT BE AVOIDED BY GOOD MANUFACTURING
PRACTICE."  THEY ARGUE THAT THIS PROVISION SHOULD BE USED BY THE
SECRETARY TO ESTABLISH A MAXIMUM TOLERANCE FOR THE APPLICATION OF RED
32 TO THE SKINS OF ORANGES, EITHER BECAUSE IT APPLIES BY ITS OWN TERMS
OR IT IS APPLICABLE BY ANALOGY.  (FN14)  THE SECRETARY CONTENDS THAT HE
IS WITHOUT POWER TO PERMIT THE USE OF HARMFUL COAL-TAR COLORS IN
SPECIFIC FOODS THROUGH A SYSTEM OF TOLERANCES.  WE BELIEVE HE IS
CORRECT. 

THE FEDERAL FOOD, DRUG, AND COSMETIC ACT IS A DETAILED AND THOROUGH
PIECE OF LEGISLATION.  ITS TREATMENT OF MANY PUBLIC HEALTH AND FOOD
PROBLEMS IS QUITE SPECIFIC, AND OF COURSE IT IS THE DUTY OF THE COURTS
IN CONSTRUING IT TO BE MINDFUL OF ITS APPROACH IN TERMS OF
DRAFTSMANSHIP.  HERE AGAIN, IN OUR CONSTRUCTION OF THIS EXPLICIT ACT,
WE MUST BE SENSITIVE TO WHAT CONGRESS HAS WRITTEN, AND RECALL THAT "IT
IS FOR US TO ASCERTAIN - NEITHER TO ADD NOR TO SUBTRACT, NEITHER TO
DELETE NOR TO DISTORT."   62 CASES OF JAM V. UNITED STATES, 340 U.S.
593, 596.  SECTION 406(A), WHICH PROVIDES FOR THE SYSTEM OF TOLERANCES,
CONSTITUTES BY ITS TERMS A DEFINITION OF THE TERM "UNSAFE," WHICH
APPEARS IN SEC. 402(A)(2), A PROHIBITION ON FOODS WHICH BEAR OR CONTAIN
"ANY ADDED POISONOUS OR ADDED DELETERIOUS SUBSTANCE  ...  WHICH IS
UNSAFE WITHIN THE MEANING OF SECTION 406."  THIS IS A PROHIBITION
ENTIRELY SEPARATE AND DISTINCT FROM THE PROHIBITIONS OF SEC. 402(C) ON
FOODS CONTAINING OR BEARING UNCERTIFIED COAL-TAR COLORS.  THE EXISTENCE
OF A TOLERANCE IS SPECIFICALLY STATED IN SEC. 406(A) ONLY TO GIVE
SANCTION TO WHAT WOULD OTHERWISE AMOUNT TO ADULTERATION WITHIN THE
TERMS OF SEC. 402(A)(1).  ACCORDINGLY, IT IS OBVIOUS FROM THE LANGUAGE
OF THE STATUTE THAT THE PROVISIONS AUTHORIZING THE ESTABLISHMENT OF
TOLERANCES APPLY ONLY TO SEC. 402(A)(1) AND (2) AND DO NOT APPLY TO
SEC. 402(C)'S FLAT PROHIBITION AGAINST THE USE OF UNCERTIFIED COLORS. 
RESPONDENTS DO NOT DIRECT US TO ANY SUBSTANTIAL CONTRARY INDICATION IN
THE LEGISLATIVE HISTORY.  NOR CAN THE TOLERANCE PROVISIONS BE APPLIED
TO COAL-TAR COLORS THROUGH SOME FORM OF ANALOGY.  THE COMMAND OF THE
STATUTE IS PLAIN: WHERE A COAL-TAR COLOR IS NOT HARMLESS, IT IS NOT TO
BE CERTIFIED; IF IT IS NOT CERTIFIED, IT IS NOT TO BE USED AT ALL.  IN
THIS REGARD ALSO, AN APPROACH IN TERMS OF THE TOXICITY OF THE COLORING
INGREDIENT, RATHER THAN OF THE FOOD PRODUCT AS A WHOLE WAS CHOSEN BY
CONGRESS.  IT EVIDENTLY TOOK THE VIEW THAT UNLESS COAL-TAR COLORS WERE
HARMLESS, THE CONSIDERATIONS OF THE BENEFITS OF VISUAL APPEAL THAT
MIGHT BE URGED IN FAVOR OF THEIR USE SHOULD NOT PREVAIL, IN THE LIGHT
OF THE CONSIDERATIONS OF THE PUBLIC HEALTH.  IN THE CASE OF OTHER SORTS
OF ADDED POISONS, THOUGH ONLY WHERE THEY WERE REQUIRED IN THE
PRODUCTION OF THE FOOD CONCERNED OR COULD NOT UNDER GOOD MANUFACTURING
PRACTICE BE AVOIDED, A DIFFERENT CONGRESSIONAL POLICY WAS EXPRESSED IN
THE 1938 ENACTMENT.  IT IS THE DUTY OF THE SECRETARY TO GIVE EFFECT TO
THIS DISTINCTION; HE HAS DONE SO WITH APPARENT SUBSTANTIAL UNIFORMITY
AND HAS DONE SO HERE. 

THIRD.  AFTER THE PROMULGATION OF THE SECRETARY'S ORDER, CONGRESS
AFFORDED TEMPORARY RELIEF TO THOSE ECONOMICALLY INTERESTED IN THE
COLORING OF ORANGES WITH RED 32.  LEGISLATION WAS ENACTED IN THE SUMMER
OF 1956 TO AFFORD A PERIOD OF APPROXIMATELY THREE YEARS (UNTIL MARCH 1,
1959) DURING WHICH USE OF THE COLOR WOULD BE ALLOWED SOLELY IN
APPLICATION TO THE SKINS OF ORANGES.  (FN15)  THE STATUTE DOES NOT, IN
OUR VIEW, AFFECT THE SITUATION PRESENTED TO THE COURTS FOR JUDICIAL
REVIEW; THE SECRETARY'S ORDER REMAINS TO BE TESTED UNDER THE PERMANENT
PROVISIONS OF THE ACT, INSOFAR AS THEY WILL AFFECT RESPONDENTS AFTER
MARCH 1, 1959.  THE STATUTE ACCORDINGLY OPERATES AS A LEGISLATIVELY
ORDAINED STAY OF THE SECRETARY'S ORDER INSOFAR AS IT AFFECTS THE
PRESENT RESPONDENTS AND THOSE SIMILARLY SITUATED.  SEE H.R. REP.  NO.
1982, P. 3, AND S. REP. NO. 2391, P. 3, 84TH CONG., 2D SESS.  IN VIEW
OF THE VERY TEMPORARY NATURE OF THIS LEGISLATIVE "STAY," THE AUTOMATIC
RESUMPTION OF THE STATUS QUO UPON ITS EXPIRATION, AND THE EFFECT OF THE
ORDER ON THE RESPONDENTS, EVEN DURING THE LEGISLATIVE STAY, WE AGREE
WITH THE PARTIES THAT THE MATTER BEFORE US IS NOT MOOT.  THE
SECRETARY'S ORDER WAS THE PROMULGATION OF A GENERAL RULE, PROSPECTIVE
IN OPERATION, AND THE FACTS OF THE RESPONDENTS' BUSINESS ARE SUCH THAT
IF THE ORDER IS UPHELD, THERE WILL BE A PRACTICAL EFFECT ON THEM EVEN
DURING THE SPAN OF THE TEMPORARY LEGISLATION.  ACCORDINGLY, THE
RESPONDENTS REMAIN PERSONS ADVERSELY AFFECTED BY THE SECRETARY'S ORDER,
AND IT IS PROPER FOR US NOW TO DETERMINE THE LEGAL SITUATION IN REGARD
TO THEM WHEN THE TEMPORARY LEGISLATION EXPIRES.  UNDER THE PERMANENT
PROVISIONS OF SECS. 402 AND 406 THE SECRETARY'S ORDER WAS LAWFUL, AND
THE RESPONDENTS PRESENT NO GROUNDS ON WHICH THEY CAN LEGALLY OBJECT TO
ITS APPLICATION TO THEM.  THE JUDGMENT OF THE COURT OF APPEALS, SETTING
THE SECRETARY'S ORDER ASIDE IN PART, MUST BE REVERSED. 

FN1  THE ACT, AS AMENDED, IS 52 STAT. 1040, 21 U.S.C. SEC. 301 ET
SEQ. SECTION 406(B), 52 STAT. 1049, 21 U.S.C. SEC. 346(B) PROVIDES: 

"THE SECRETARY SHALL PROMULGATE REGULATIONS PROVIDING FOR THE LISTING
OF COAL-TAR COLORS WHICH ARE HARMLESS AND SUITABLE FOR USE IN FOOD AND
FOR THE CERTIFICATION OF BATCHES OF SUCH COLORS, WITH OR WITHOUT
HARMLESS DILUENTS." 

FN2  SECTION 402(C), 52 STAT. 1047, 21 U.S.C. SEC. 342(C), PROVIDES
THAT A FOOD SHALL BE DEEMED TO BE ADULTERATED "IF IT BEARS OR CONTAINS
A COAL-TAR COLOR OTHER THAN ONE FROM A BATCH THAT HAS BEEN CERTIFIED IN
ACCORDANCE WITH REGULATIONS AS PROVIDED BY SECTION 406  ...  ." 

INTRODUCTION INTO INTERSTATE COMMERCE, OR THE RECEIPT IN INTERSTATE
COMMERCE, AND THE DELIVERY THEREOF, OF ADULTERATED FOOD, OR THE
ADULTERATION OF FOOD IN INTERSTATE COMMERCE.  52 STAT. 1042, 21 U.S.C.
SEC. 331.  SANCTIONS FOR THE PROHIBITED ACTS, IN THE FORM OF INJUNCTION
PROCEEDINGS, CRIMINAL PROSECUTIONS, AND SEIZURE ACTIONS, ARE PROVIDED
IN SECS. 302-304, 52 STAT. 1043, 1044, 21 U.S.C. SECS. 332-334. 

FN3  "IN A CASE OF ACTUAL CONTROVERSY AS TO THE VALIDITY OF ANY ORDER
UNDER SUBSECTION (E), ANY PERSON WHO WILL BE ADVERSELY AFFECTED BY SUCH
ORDER IF PLACED IN EFFECT MAY AT ANY TIME PRIOR TO THE NINETIETH DAY
AFTER SUCH ORDER IS ISSUED FILE A PETITION WITH THE UNITED STATES COURT
OF APPEALS FOR THE CIRCUIT WHEREIN SUCH PERSON RESIDES OR HAS HIS
PRINCIPAL PLACE OF BUSINESS, FOR A JUDICIAL REVIEW OF SUCH ORDER.  THE
SUMMONS AND PETITION MAY BE SERVED AT ANY PLACE IN THE UNITED STATES. 
THE SECRETARY, PROMPTLY UPON SERVICE OF THE SUMMONS AND PETITION, SHALL
CERTIFY AND FILE IN THE COURT THE TRANSCRIPT OF THE PROCEEDINGS AND THE
RECORD ON WHICH THE SECRETARY BASED HIS ORDER."  52 STAT. 1055, 21
U.S.C. SEC. 371(F). 

FN4  REVIEW WAS SOUGHT IN THREE COURTS OF APPEALS IN ALL.  IN THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT, A PETITION WAS DISMISSED
BEFORE IT WAS ADJUDICATED. 

FN5  THE PERSONS AND FIRMS WHO ARE RESPONDENTS HERE ARE ALL ENGAGED
IN THE GROWING, PACKING OR MARKETING OF FLORIDA OR TEXAS ORANGES.  ONE
IS ALSO INTERESTED IN THE PATENTED PROCESS WHEREBY THE RED 32 COLOR IS
APPLIED TO THE SKINS OF ORANGES. 

FN6  THE COURT OF APPEALS SET ASIDE THE ORDER: 

"  ...  IN SO FAR AS SAID ORDER REMOVES THE COAL-TAR COLOR FD&C RED
NO. 32 FROM THE LIST OF COLORS WHICH MAY BE CERTIFIED FOR USE IN
COLORING THE SKIN OF ORANGES MEETING MINIMUM MATURITY STANDARDS
PRESCRIBED IN THE STATE OF FLORIDA AND TEXAS; PROVIDED, THAT NOTHING
HEREIN OR IN THE JUDGMENT OF THIS COURT ENTERED PURSUANT HERETO SHALL
RESTORE SAID COAL-TAR COLOR TO THE LIST OF COLORS WHICH MAY BE
CERTIFIED FOR UNRESTRICTED USE IN FOOD, DRUGS AND COSMETICS BUT SHALL
OPERATE TO AUTHORIZE THE CERTIFICATION OF BATCHES OF SAID COLOR
CONFORMING TO THE SPECIFICATIONS FOR THE COLOR APPEARING AT 21 C.F.R.
135.3 (1949 ED.)  FOR THE PURPOSE OF COLORING THE SKIN OF MATURE
ORANGES ONLY; PROVIDED FURTHER, THAT THE SECRETARY SHALL BE REQUIRED TO
CERTIFY ONLY SUFFICIENT BATCHES OF FD&C RED NO. 32 AS MAY BE NECESSARY
TO COLOR THE SKIN OF MATURE ORANGES FROM TIME TO TIME; PROVIDED
FURTHER, THAT THE CERTIFICATES ISSUED FOR BATCHES OF FD&C RED NO. 32
MAY BE LIMITED BY THEIR CERTIFICATE FOR USE IN COLORING MATURE ORANGES
ONLY; AND PROVIDED FURTHER, THAT NOTHING HEREIN OR IN THE JUDGMENT OF
THIS COURT ENTERED PURSUANT HERETO SHALL BE DEEMED TO RESTRICT THE
SECRETARY FROM MAKING FURTHER INVESTIGATIONS AND CONDUCTING HEARINGS
FOR A DETERMINATION OF WHETHER THE USE OF RED 32 IS REQUIRED IN THE
PRODUCTION OF ORANGES AND TO DETERMINE THE TOLERANCES, IF ANY, THAT ARE
SAFE AND HARMLESS, AS HARMLESS IS HEREIN CONSTRUED AND DEFINED."  246
F.2D, AT 862. 

FN7  52 STAT. 1049, 21 U.S.C. SEC. 346(A), WHICH PROVIDES: 

"(A)  ANY POISONOUS OR DELETERIOUS SUBSTANCE ADDED TO ANY FOOD,
EXCEPT WHERE SUCH SUBSTANCE IS REQUIRED IN THE PRODUCTION THEREOF OR
CANNOT BE AVOIDED BY GOOD MANUFACTURING PRACTICE SHALL BE DEEMED TO BE
UNSAFE FOR PURPOSES OF THE APPLICATION OF CLAUSE (2) OF SECTION 402(A);
BUT WHEN SUCH SUBSTANCE IS SO REQUIRED OR CANNOT BE SO AVOIDED, THE
SECRETARY SHALL PROMULGATE REGULATIONS LIMITING THE QUANTITY THEREIN OR
THEREON TO SUCH EXTENT AS HE FINDS NECESSARY FOR THE PROTECTION OF
PUBLIC HEALTH, AND ANY QUANTITY EXCEEDING THE LIMITS SO FIXED SHALL
ALSO BE DEEMED TO BE UNSAFE FOR PURPOSES OF THE APPLICATION OF CLAUSE
(2) OF SECTION 402(A).  WHILE SUCH A REGULATION IS IN EFFECT LIMITING
THE QUANTITY OF ANY SUCH SUBSTANCE IN THE CASE OF ANY FOOD, SUCH FOOD
SHALL NOT, BY REASON OF BEARING OR CONTAINING ANY ADDED AMOUNT OF SUCH
SUBSTANCE, BE CONSIDERED TO BE ADULTERATED WITHIN THE MEANING OF CLAUSE
(1) OF SECTION 402(A).  IN DETERMINING THE QUANTITY OF SUCH ADDED
SUBSTANCE TO BE TOLERATED IN OR ON DIFFERENT ARTICLES OF FOOD THE
SECRETARY SHALL TAKE INTO ACCOUNT THE EXTENT TO WHICH THE USE OF SUCH
SUBSTANCE IS REQUIRED OR CANNOT BE AVOIDED IN THE PRODUCTION OF EACH
SUCH ARTICLE, AND THE OTHER WAYS IN WHICH THE CONSUMER MAY BE AFFECTED
BY THE SAME OR OTHER POISONOUS OR DELETERIOUS SUBSTANCES."    FN8  S.
REP. NO. 2391, 84TH CONG., 2D SESS., P. 1; H.R. REP. NO. 1982, 84TH
CONG., 2D SESS., P. 2. 

FN9  THE 1938 ENACTMENT CONTAINED A PROVISO TO SEC. 402(C) "  ...
THAT THIS PARAGRAPH SHALL NOT APPLY TO CITRUS FRUIT BEARING OR
CONTAINING A COAL-TAR COLOR IF APPLICATION FOR LISTING OF SUCH COLOR
HAS BEEN MADE UNDER THIS ACT AND SUCH APPLICATION HAS NOT BEEN ACTED ON
BY THE SECRETARY, IF SUCH COLOR WAS COMMONLY USED PRIOR TO THE
ENACTMENT OF THIS ACT FOR THE PURPOSE OF COLORING CITRUS FRUIT."  52
STAT. 1047, 21 U.S.C. SEC. 342(C).  RESPONDENTS SUGGEST THAT THIS
PROVISO SOMEHOW SUGGESTS A CONGRESSIONAL INTENT TO DEAL WITH THEIR
COLOR MORE LENIENTLY UNDER THE PRESENT CIRCUMSTANCES, BUT WE CAN DRAW
NO SUCH INFERENCE. 

FN10  SECTION 402(A)(2), WITH ITS REFERENCE TO SEC. 406, SEE NOTE 7,
SUPRA, REVISED THE RULE OF THE LEXINGTON MILL CASE SUBSTANTIALLY IN ITS
OWN FACTUAL CONTEXT, THAT OF ADDED POISONOUS SUBSTANCES IN FOOD. 
THE LATEST ONE OF WHICH IS SEC. 3 OF THE FOOD ADDITIVES AMENDMENT OF
1958, PUBLIC LAW 85-929, SEPTEMBER 6, 1958, 72 STAT. 1784.  SEE NOTE
12, INFRA. 

FN11  CONSIDERABLY MORE OF THE COLOR WAS REGULARLY PRODUCED BEFORE
THE ENTRY OF THE SECRETARY'S ORDER THAN COULD BE ACCOUNTED FOR AS
ACTUALLY BEING ON THE SKINS OF ORANGES.  NEITHER THE GOVERNMENT NOR THE
RESPONDENTS ACCOUNT FOR THE DIFFERENCE MORE THAN SPECULATIVELY.  THE
GOVERNMENT URGES THAT THE DIFFERENCE MUST HAVE BEEN USED IN OTHER FOOD
PRODUCTS.  RESPONDENTS EMPHASIZE THE INEVITABLE WASTE OF QUANTITIES OF
THE COLOR DURING THE ORANGE-COLORING PROCESS.  TO US THIS UNDERLINES
THE APPROACH OF THE PROVISIONS IN QUESTION; WHERE A COLOR IS FOUND TO
BE HARMLESS IN ITSELF, NO FURTHER INQUIRY CAN BE MADE OF IT; IF IT IS
HARMFUL, NONE NEED BE. 

FN12  A SINGLE DOSE OF 100 MILLIGRAMS OF THE COLOR SUBSTANCE (0.0035
OZ. AVOIRDUPOIS, OR 1/3 THE WEIGHT OF A STANDARD ASPIRIN TABLET)
PRODUCED A RAPID DIARRHEIC EFFECT IN TEST DOGS. 

FN13  ONE RESPONDENT ASSAILS THE VALIDITY, EVEN WITHIN THE FRAMEWORK
OF THE SECRETARY'S INTERPRETATION OF THE STATUTE, OF THE TESTS
PERFORMED ON THE EXPERIMENTAL ANIMALS.  THE COURT OF APPEALS FOUND THAT
THE EVIDENCE JUSTIFIED THE SECRETARY'S FINDING THAT THE COLOR WAS
POISONOUS, 246 F.2D, AT 859, AND WE ARE IN AGREEMENT. 

FN14  THE COURT OF APPEALS' JUDGMENT HAD THE EFFECT OF STAYING THE
SECRETARY'S ORDER IN TOTO AS IT AFFECTED ORANGE COLORING UNTIL HE
DEVELOPED A TOLERANCE.  THE SECRETARY ARGUES HERE THAT EVEN IF HE IS
AUTHORIZED TO ESTABLISH A TOLERANCE FOR THE USE OF RED 32 ON ORANGES,
HIS ORDER SHOULD STAND UNTIL HE HAS ESTABLISHED IT.  IN THE VIEW OF THE
CASE THAT WE TAKE, WE DO NOT REACH THIS CONTENTION. 

FN15  THE ACT OF JULY 9, 1956, C. 530, 70 STAT. 512, ADDED THE
FOLLOWING PROVISO TO SEC. 402(C) OF THE ACT: 

"PROVIDED FURTHER, THAT THIS PARAGRAPH SHALL NOT APPLY TO ORANGES
MEETING MINIMUM MATURITY STANDARDS ESTABLISHED BY OR UNDER THE LAWS OF
THE STATES IN WHICH THE ORANGES WERE GROWN AND NOT INTENDED FOR
PROCESSING (OTHER THAN ORANGES DESIGNATED BY THE TRADE AS 'PACKING
HOUSE ELIMINATION'), THE SKINS OF WHICH HAVE BEEN COLORED AT ANY TIME
PRIOR TO MARCH 1, 1959, WITH THE COAL-TAR COLOR CERTIFIED PRIOR TO THE
ENACTMENT OF THIS PROVISO AS F.D.&C. RED 32, OR CERTIFIED AFTER SUCH
ENACTMENT AS EXTERNAL D.&C. RED 14 IN ACCORDANCE WITH SECTION 21, CODE
OF FEDERAL REGULATIONS, PART 9:  AND PROVIDED FURTHER, THAT THE
PRECEDING PROVISO SHALL HAVE NO FURTHER EFFECT IF PRIOR TO MARCH 1,
1959, ANOTHER COAL-TAR COLOR SUITABLE FOR COLORING ORANGES IS LISTED
UNDER SECTION 406." 
..END :





















LADNER V. UNITED STATES 358 U.S. 169 


NO. 2.  ARGUED NOVEMBER 19, 1957 - AFFIRMED BY AN EQUALLY DIVIDED COURT
JANUARY 6, 1958 - REHEARING GRANTED, JUDGMENT VACATED AND CASE RESTORED
TO THE CALENDAR FOR REARGUMENT MAY 26, 1958 - REARGUED OCTOBER 22, 1958
- DECIDED DECEMBER 15, 1958 - 230 F.2D 726, REVERSED AND CASE REMANDED
FOR FURTHER PROCEEDINGS. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT ON TWO DIFFERENT
COUNTS OF ASSAULTING TWO FEDERAL OFFICERS WITH A DEADLY WEAPON IN
VIOLATION OF 18 U.S.C. (1940 ED.)  SEC.  254 (NOW 18 U.S.C. SEC. 111). 
HE WAS SENTENCED TO IMPRISONMENT FOR 10 YEARS ON EACH CONVICTION OF
ASSAULT, THE SENTENCES TO RUN CONSECUTIVELY.  UPON COMPLETION OF THE
FIRST 10-YEAR SENTENCE, HE MOVED IN THE DISTRICT COURT UNDER 28 U.S.C.
SEC. 2255 TO CORRECT THE SECOND, AND CONSECUTIVE, SENTENCE.  HE ALLEGED
THAT THE EVIDENCE AT HIS TRIAL SHOWED THAT HE FIRED BUT ONE DISCHARGE
FROM A SHOTGUN, WHICH WOUNDED THE TWO FEDERAL OFFICERS, AND HE
CONTENDED THAT IN THESE CIRCUMSTANCES HE COULD BE GUILTY OF BUT ONE
ASSAULT.  HOLDING THAT THE WOUNDING OF TWO OFFICERS BY A SINGLE
DISCHARGE OF A SHOTGUN WOULD CONSTITUTE A SEPARATE OFFENSE AGAINST EACH
OFFICER UNDER THE STATUTE, THE DISTRICT COURT DENIED HIS MOTION AND THE
COURT OF APPEALS AFFIRMED.  HELD:  THE SINGLE DISCHARGE OF A SHOTGUN
ALLEGED BY PETITIONER IN THIS CASE WOULD CONSTITUTE ONLY A SINGLE
VIOLATION OF SEC. 254; PETITIONER IS ENTITLED TO AN OPPORTUNITY TO
SUSTAIN HIS ALLEGATION THAT HIS CONVICTION OF TWO ASSAULTS RESTED UPON
EVIDENCE THAT THE WOUNDING OF THE TWO OFFICERS RESULTED FROM THE SINGLE
DISCHARGE OF THE GUN; AND THE JUDGMENT IS REVERSED AND THE CAUSE
REMANDED FOR FURTHER PROCEEDINGS.  PP. 170-179. 

(A)  THE QUESTION OF THE SCOPE OF COLLATERAL ATTACK UPON CRIMINAL
SENTENCES IN THE CIRCUMSTANCES OF THIS CASE IS NOT DECIDED, SINCE IT
DOES NOT APPEAR THAT THE GOVERNMENT RAISED THE QUESTION IN THE COURTS
BELOW AND IT IS NOT TENDERED IN THIS COURT AS A QUESTION PRESENTED FOR
DECISION.  PP. 172-173. 

(3)  IT IS NOT CLEAR FROM THE STATUTE, EVEN WHEN READ IN THE LIGHT OF
ITS LEGISLATIVE HISTORY, THAT CONGRESS INTENDED THAT A SINGLE ACT OF
ASSAULT AFFECTING TWO OFFICERS SHOULD CONSTITUTE TWO OFFENSES UNDER THE
STATUTE.  PP. 173-177. 

(C)  TO HOLD THAT THERE ARE AS MANY ASSAULTS COMMITTED AS THERE ARE
OFFICERS AFFECTED WOULD PRODUCE INCONGRUOUS RESULTS.  P. 177. 

(D)  THE MEANING OF THIS CRIMINAL STATUTE BEING AMBIGUOUS, THE POLICY
OF LENITY IN THE CONSTRUCTION OF CRIMINAL STATUTES REQUIRES THAT THE
LESS HARSH OF TWO POSSIBLE MEANINGS BE ADOPTED.  PP. 177-178. 

(E)  SINCE THE DISTRICT COURT DID NOT HOLD A HEARING ON PETITIONER'S
MOTION AND THE PROCEEDINGS AT PETITIONER'S TRIAL WERE NOT TRANSCRIBED,
IT WILL BE NECESSARY AT THE HEARING ON THE MOTION TO RECONSTRUCT THE
TRIAL RECORD IN ORDER TO DETERMINE WHETHER PETITIONER WAS PROPERLY
CONVICTED OF MORE THAN ONE OFFENSE.  PP. 178-179. 

LADNER V. UNITED STATES. 

ON REHEARING. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF MISSISSIPPI OF ASSAULTING TWO FEDERAL OFFICERS
WITH A DEADLY WEAPON IN VIOLATION OF FORMER 18 U.S.C. SEC. 254.  (FN1)
THE COURT SENTENCED THE PETITIONER TO THE MAXIMUM PUNISHMENT OF 10
YEARS' IMPRISONMENT ON EACH CONVICTION OF ASSAULT, THE SENTENCES TO RUN
CONSECUTIVELY.  (FN2)  UPON COMPLETION OF THE FIRST 10-YEAR SENTENCE,
THE PETITIONER MADE A MOTION IN THE DISTRICT COURT, UNDER 28 U.S.C.
SEC. 2255, TO CORRECT THE SECOND, AND CONSECUTIVE, SENTENCE.  HE
SUPPORTED HIS MOTION BY ALLEGATIONS THAT THE EVIDENCE AT HIS TRIAL
SHOWED THAT HE FIRED A SINGLE DISCHARGE FROM A SHOTGUN INTO THE FRONT
SEAT OF AN AUTOMOBILE AND THAT THE PELLETS WOUNDED THE TWO FEDERAL
OFFICERS, WHO WERE TRANSPORTING AN ARRESTED PRISONER.  HE CONTENDED
THAT IN THIS CIRCUMSTANCE HE WAS GUILTY OF BUT ONE "ASSAULT" WITHIN THE
MEANING OF FORMER SEC. 254 AND ACCORDNINGLY WAS SUBJECT TO ONLY ONE
PUNISHMENT.   THE DISTRICT COURT DENIED HIS MOTION AND THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  230 F.2D 726.  BOTH COURTS
HELD THAT THE WOUNDING OF TWO FEDERAL OFFICERS BY THE SINGLE DISCHARGE
OF A SHOTGUN WOULD CONSTITUTE A SEPARATE OFFENSE AGAINST EACH OFFICER
UNDER THE STATUTE.  WE GRANTED CERTIORARI, 352 U.S. 907, TO CONSIDER
THE CONSTRUCTION OF SEC. 254 IN LIGHT OF PRINCIPLES APPLIED TO CONSTRUE
THE FEDERAL CRIMINAL STATUES INVOLVED IN BELL V. UNITED STATES, 349
U.S. 81; UNITED STATES V. UNIVERSAL C.I.T. CREDIT CORP., 344 U.S. 218;
AND PRINCE V. UNITED STATES, 352 U.S. 322.  WE AFFIRMED THE COURT OF
APPEALS BY AN EQUALLY DIVIDED COURT, 355 U.S. 282, BUT VACATED OUR
JUDGMENT, AND SET THE CASE FOR REARGUMENT, WHEN A PETITION FOR
REHEARING WAS GRANTED.  356 U.S. 969.  REARGUMENT WAS HAD THIS TERM. 

IT IS SUGGESTED THAT THE REMEDY UNDER SEC. 2255 IS NOT AVAILABLE TO
THE PETITIONER IN THE CIRCUMSTANCES OF THIS CASE.  THE RECORD DOES NOT
DISCLOSE THAT THE GOVERNMENT RAISED THIS QUESTION IN THE DISTRICT COURT
OR IN THE COURT OF APPEALS, AND THE GOVERNMENT DOES NOT TENDER IT AS A
QUESTION PRESENTED FOR DECISION IN ITS BRIEF IN THIS COURT.  THIS COURT
HAS OFTEN REACHED THE MERITS OF A CASE INVOLVING QUESTIONS OF STATUTORY
CONSTRUCTION SIMILAR TO THAT PRESENTED IN THIS CASE UNDER FORMER 18
U.S.C. SEC. 254 IN PROCEEDINGS BY WAY OF COLLATERAL ATTACK UPON
CONSECUTIVE SENTENCES.  IN IN RE SNOW, 120 U.S. 274, THE PETITIONER
BROUGHT A HABEAS CORPUS PROCEEDING AFTER SERVING SEVEN MONTHS OF THREE
CONSECUTIVE SIX-MONTH SENTENCES.  HE CLAIMED THAT THE SENTENCING COURT
HAD MISINTERPRETED THE APPLICABLE STATUTE AND THAT HE HAD COMMITTED BUT
A SINGLE OFFENSE PUNISHABLE BY A SINGLE SIX-MONTH SENTENCE.  THIS COURT
HELD THAT "THE OBJECTION MAY BE TAKEN ON HABEAS CORPUS, WHEN THE
SENTENCE ON MORE THAN ONE OF THE CONVICTIONS IS SOUGHT TO BE
ENFORCED."  ID., AT 285.  IN BELL V. UNITED STATES, SUPRA, A CASE ON
ALL FOURS WITH THE PRESENT CASE, THE COURT REACHED THE QUESTION OF
STATUTORY CONSTRUCTION OVER OBJECTION IN THE GOVERNMENT'S BRIEF IN
OPPOSITION TO THE PETITION FOR CERTIORARI THAT THE QUESTION COULD NOT
BE RAISED ON MOTION UNDER SEC. 2255.  OTHER CASES IN WHICH THE COURT
REACHED AND DECIDED QUESTIONS OF STATUTORY CONSTRUCTION, ALTHOUGH THE
QUESTIONS WERE RAISED BY COLLATERAL ATTACK ON CONSECUTIVE SENTENCES,
INCLUDE:  TINDER V. UNITED STATES, 345 U.S. 565 (SEC. 2255); GORE V.
UNITED STATES, 357 U.S. 386 (SEC. 2255); PRINCE V. UNITED STATES, SUPRA
(FEDERAL RULE OF CRIMINAL PROCEDURE 35); EBELING V. MORGAN, 237 U.S.
625 (HABEAS CORPUS); MORGAN V. DEVINE, 237 U.S. 632 (HABEAS CORPUS). 
THE FACT THAT THE COURT HAS SO OFTEN REACHED THE MERITS OF THE
STATUTORY CONSTRUCTION ISSUES IN SUCH PROCEEDINGS SUGGESTS THAT THE
AVAILABILITY OF A COLLATERAL REMEDY IS NOT A JURISDICTIONAL QUESTION IN
THE SENSE THAT, IF NOT PROPERLY RAISED, THIS COURT SHOULD NEVERTHELESS
DETERMINE IT SUA SPONTE.  MOREOVER, THERE WAS ONLY MEAGRE ARGUMENT OF
THE QUESTION OF THE AVAILABILITY OF THE REMEDY IN THIS CASE.  THE
GOVERNMENT SUBMITTED ONLY A SHORT DISCUSSION OF THE QUESTION IN THE
BODY OF ITS BRIEF AND MADE ONLY A PASSING REFERENCE TO IT TOWARD THE
CLOSE OF THE ORAL ARGUMENT.  THE QUESTION OF THE SCOPE OF COLLATERAL
ATTACK UPON CRIMINAL SENTENCES IS AN IMPORTANT AND COMPLEX ONE, JUDGING
FROM THE NUMBER OF DECISIONS DISCUSSING IT IN THE DISTRICT COURTS AND
THE COURTS OF APPEALS.  WE THINK THAT WE SHOULD HAVE THE BENEFIT OF A
FULL ARGUMENT BEFORE DEALING WITH THE QUESTION.  WE, THEREFORE, PROCEED
TO CONSTRUE FORMER 18 U.S.C. SEC. 254 WITHOUT, HOWEVER, INTIMATING ANY
VIEW AS TO THE AVAILABILITY OF A COLLATERAL REMEDY IN ANOTHER CASE
WHERE THAT QUESTION IS PROPERLY RAISED, AND IS ADEQUATELY BRIEFED AND
ARGUED IN THIS COURT. 

THERE IS NO CONSTITUTIONAL ISSUE PRESENTED.  THE QUESTION FOR
DECISION IS AS TO THE CONSTRUCTION TO BE GIVEN FORMER SEC. 254 IN THE
CIRCUMSTANCES ALLEGED BY THE PETITIONER.  DID CONGRESS MEAN THAT THE
SINGLE DISCHARGE OF A SHOTGUN WOULD CONSTITUTE ONE ASSAULT, AND THUS
ONLY ONE OFFENSE, REGARDLESS OF THE NUMBER OF OFFICERS AFFECTED, OR DID
CONGRESS DEFINE A SEPARATE OFFENSE FOR EACH FEDERAL OFFICER AFFECTED BY
THE DOING OF THE ACT?  THE CONGRESSIONAL MEANING IS PLAINLY OPEN TO
QUESTION ON THE FACE OF THE STATUTE, WHICH ORIGINATED AS SEC. 2 OF THE
ACT OF MAY 18, 1934.  48 STAT. 780.  THE GOVERNMENT DOES NOT SERIOUSLY
CONTEND OTHERWISE, BUT EMPHASIZES THAT THE LEGISLATIVE HISTORY SHOWS
THAT THE STATUTE WAS DESIGNED TO PROTECT FEDERAL OFFICERS FROM PERSONAL
HARM, OR THE THREAT OF PERSONAL HARM, IN THE PERFORMANCE OF THEIR
DUTIES, OR ON ACCOUNT OF THE PERFORMANCE OF THEIR DUTIES.  FROM THIS
PREMISE, THE GOVERNMENT ARGUES THAT THERE MUST BE AN OFFENSE FOR EACH
OFFICER WHO IS PUT IN IMMEDIATE APPREHENSION OF PERSONAL INJURY, I.E.,
ASSAULTED, AND THAT EACH OFFICER THUS DEFINES THE UNIT OF PROSECUTION. 
THE POSITION IS SUMMED UP IN THE GOVERNMENT'S BRIEF AS FOLLOWS:  "THE
LEGISLATION WAS AIMED AT PROTECTING FEDERAL OFFICERS, NOT ONLY TO
PROMOTE THE ORDERLY FUNCTIONING OF THE FEDERAL GOVERNMENT (WHOSE
EFFICIENCY WOULD DIMINISH IN PROPORTION TO THE NUMBER OF INDIVIDUAL
OFFICERS AFFECTED), BUT ALSO TO PROTECT THE INDIVIDUAL OFFICERS, AS
'WARDS' OF THE FEDERAL GOVERNMENT, FROM PERSONAL HARM.  BOTH OF THESE
LEGISLATIVE OBJECTIVES MAKE THE INDIVIDUAL OFFICERS A SEPARATE UNIT OF
PROTECTION." 

HOWEVER, WE ARE UNABLE TO READ THE LEGISLATIVE HISTORY AS CLEARLY
ILLUMINING THE STATUTE WITH THIS MEANING.  THE HISTORY IS SCANT,
CONSISTING LARGELY OF AN ATTORNEY GENERAL'S LETTER RECOMMENDING THE
PASSAGE OF THE LEGISLATION, (FN3) AND SHEDS NO REAL LIGHT ON WHAT
CONGRESS INTENDED TO BE THE UNIT OF PROSECUTION.  ALTHOUGH THE LETTER
MENTIONS THE NEED FOR LEGISLATION FOR THE PROTECTION OF FEDERAL
OFFICERS, IT ALSO SPEAKS OF THE NEED FOR LEGISLATION "TO FURTHER THE
LEGITIMATE PURPOSES OF THE FEDERAL GOVERNMENT."  FROM WHAT APPEARS, AN
ARGUMENT AT LEAST AS PLAUSIBLE AS THE GOVERNMENT'S MAY BE MADE THAT THE
CONGRESSIONAL AIM WAS TO PREVENT HINDRANCE TO THE EXECUTION OF OFFICIAL
DUTY, AND THUS TO ASSURE THE CARRYING OUT OF FEDERAL PURPOSES AND
INTERESTS, AND WAS NOT TO PROTECT FEDERAL OFFICERS EXCEPT AS INCIDENT
TO THAT AIM.  SUPPORT FOR THIS MEANING MAY BE FOUND IN THE FACT THAT
SEC. 254 MAKES IT UNLAWFUL NOT ONLY TO ASSAULT FEDERAL OFFICERS ENGAGED
ON OFFICIAL DUTY BUT ALSO FORCIBLY TO RESIST, OPPOSE, IMPEDE,
INTIMIDATE OR INTERFERE WITH SUCH OFFICERS.  CLEARLY ONE MAY RESIST,
OPPOSE, OR IMPEDE THE OFFICERS OR INTERFERE WITH THE PERFORMANCE OF
THEIR DUTIES WITHOUT PLACING THEM IN PERSONAL DANGER.  SUCH A
CONGRESSIONAL AIM WOULD, OF COURSE, BE SERVED BY CONSIDERING THE ACT OF
HINDERANCE AS THE UNIT OF PROSECUTION WITHOUT REGARD TO THE NUMBER OF
FEDERAL OFFICERS AFFECTED BY THE ACT.  FOR EXAMPLE, THE LOCKING OF THE
DOOR OF A BUILDING TO PREVENT THE ENTRY OF OFFICERS INTENDING TO ARREST
A PERSON WITHIN WOULD BE AN ACT OF HINDRANCE DENOUNCED BY THE STATUTE. 
WE CANNOT FIND CLEARLY FROM THE STATUTE, EVEN WHEN READ IN THE LIGHT OF
ITS LEGISLATIVE HISTORY, THAT THE CONGRESS INTENDED THAT THE PERSON
LOCKING THE DOOR MIGHT COMMIT AS MANY CRIMES AS THERE ARE OFFICERS
DENIED ENTRY.  AND IF WE CANNOT FIND THIS MEANING IN THE SUPPOSED CASE,
WE CANNOT FIND THAT CONGRESS INTENDED THAT A SINGLE ACT OF ASSAULT
AFFECTING TWO OFFICERS CONSTITUTES TWO OFFENSES UNDER THE STATUTE.  THE
GOVERNMENT FRANKLY CONCEDED ON THE ORAL ARGUMENT THAT ASSAULT CAN BE
TREATED NO DIFFERENTLY FROM THE OTHER OUTLAWED ACTIVITIES, (FN4) AND
THAT IF A SINGLE ACT OF HINDRANCE WHICH HAS AN IMPACT ON TWO OFFICERS
IS ONLY ONE OFFENSE WHEN THE ACT IS NOT AN ASSAULT, AN ACT OF ASSAULT
CAN BE ONLY ONE OFFENSE EVEN THOUGH IT HAS AN IMPACT ON TWO OFFICERS. 

MOREOVER, AN INTERPRETATION THAT THERE ARE AS MANY ASSAULTS COMMITTED
AS THERE ARE OFFICERS AFFECTED WOULD PRODUCE INCONGRUOUS RESULTS. 
PUNISHMENTS TOTALLY DISPROPORTIONATE TO THE ACT OF ASSAULT COULD BE
IMPOSED BECAUSE IT WILL OFTEN BE THE CASE THAT THE NUMBER OF OFFICERS
AFFECTED WILL HAVE LITTLE BEARING UPON THE SERIOUSNESS OF THE CRIMINAL
ACT.  FOR AN ASSAULT IS ORDINARILY HELD TO BE COMMITTED MERELY BY
PUTTING ANOTHER IN APPREHENSION OF HARM WHETHER OR NOT THE ACTOR
ACTUALLY INTENDS TO INFLICT OR IS CAPABLE OF INFLICTING THAT HARM. 
(FN5)  THUS UNDER THE MEANING FOR WHICH THE GOVERNMENT CONTENDS, ONE
WHO SHOOTS AND SERIOUSLY WOUNDS AN OFFICER WOULD COMMIT ONE OFFENSE
PUNISHABLE BY 10 YEARS' IMPRISONMENT, BUT IF HE POINTS A GUN AT FIVE
OFFICERS, PUTTING ALL OF THEM IN APPREHENSION OF HARM, HE WOULD COMMIT
FIVE OFFENSES PUNISHABLE BY 50 YEARS' IMPRISONMENT, EVEN THOUGH HE DOES
NOT FIRE THE GUN AND NO OFFICER ACTUALLY SUFFERS INJURY.  IT IS
DIFFICULT, WITHOUT A CLEARER INDICATION THAN THE MATERIALS BEFORE US
PROVIDE, TO FIND THAT CONGRESS INTENDED THIS RESULT. 

IT IS THEREFORE APPARENT THAT SEC. 254 MAY AS REASONABLY BE READ TO
MEAN THAT THE SINGLE DISCHARGE OF THE SHOTGUN WOULD CONSTITUTE AN
"ASSAULT" WITHOUT REGARD TO THE NUMBER OF FEDERAL OFFICERS AFFECTED, AS
IT MAY BE READ TO MEAN THAT AS MANY "ASSAULTS" WOULD BE COMMITTED AS
THERE WERE OFFICERS AFFECTED.  NEITHER THE WORDING OF THE STATUTE NOR
ITS LEGISLATIVE HISTORY POINTS CLEARLY TO EITHER MEANING.  IN THAT
CIRCUMSTANCE THE COURT APPLIES A POLICY OF LENITY AND ADOPTS THE LESS
HARSH MEANING.  "WHEN CHOICE HAS TO BE MADE BETWEEN TWO READINGS OF
WHAT CONDUCT CONGRESS HAS MADE A CRIME, IT IS APPROPRIATE, BEFORE WE
CHOOSE THE HARSHER ALTERNATIVE, TO REQUIRE THAT CONGRESS SHOULD HAVE
SPOKEN IN LANGUAGE THAT IS CLEAR AND DEFINITE.  WE SHOULD NOT DERIVE
CRIMINAL OUTLAWRY FROM SOME AMBIGUOUS IMPLICATION."  UNITED STATES V.
UNIVERSAL C.I.T. CREDIT CORP., 344 U.S. 218, 221-222.   AND IN BELL V.
UNITED STATES, 349 U.S. 81, 83, THE COURT EXPRESSED THIS POLICY AS
FOLLOWS:  "WHEN CONGRESS LEAVES TO THE JUDICIARY THE TASK OF IMPUTING
TO CONGRESS AN UNDECLARED WILL, THE AMBIGUITY SHOULD BE RESOLVED IN
FAVOR OF LENITY."  SEE ALSO PRINCE V. UNITED STATES, SUPRA; GORE V.
UNITED STATES, 357 U.S. 386, 391.  THIS POLICY OF LENITY MEANS THAT THE
COURT WILL NOT INTERPRET A FEDERAL CRIMINAL STATUTE SO AS TO INCREASE
THE PENALTY THAT IT PLACES ON AN INDIVIDUAL WHEN SUCH AN INTERPRETATION
CAN BE BASED ON NO MORE THAN A GUESS AS TO WHAT CONGRESS INTENDED.  IF
CONGRESS DESIRES TO CREATE MULTIPLE OFFENSES FROM A SINGLE ACT
AFFECTING MORE THAN ONE FEDERAL OFFICER, CONGRESS CAN MAKE THAT MEANING
CLEAR.  WE THUS HOLD THAT THE SINGLE DISCHARGE OF A SHOTGUN ALLEGED BY
THE PETITIONER IN THIS CASE WOULD CONSTITUTE ONLY A SINGLE VIOLATION OF
SEC. 254. 

IT FOLLOWS THAT THE PETITIONER IS ENTITLED TO AN OPPORTUNITY TO
SUSTAIN HIS ALLEGATION THAT HIS CONVICTION OF TWO ASSAULTS RESTED UPON
EVIDENCE THAT THE WOUNDING OF THE TWO OFFICERS RESULTED FROM A SINGLE
DISCHARGE OF THE GUN.  (FN6)  THE DISTRICT COURT DID NOT HOLD A HEARING
ON HIS MOTION BECAUSE OF ITS VIEW THAT THE SINGLE DISCHARGE ADMITTED BY
HIM RESULTED IN TWO ASSAULTS.  BUT THE COURT OF APPEALS, IN AFFIRMING
ON THE SAME GROUND, CORRECTLY ACKNOWLEDGED THAT IF THIS WERE AN
ERRONEOUS VIEW OF THE LAW, "THERE IS A NECESSITY FOR THE DETERMINATION
OF SUCH A FACTUAL QUESTION AND THERE MUST BE A HEARING AT WHICH THE
PETITIONER IS ENTITLED TO BE PRESENT."  230 F.2D, AT 728.  SEE UNITED
STATES V. HAYMAN, 342 U.S. 205, 219-220; WALKER V. JOHNSTON, 312 U.S.
275.  BECAUSE THE PROCEEDINGS AT THE PETITIONER'S TRIAL WERE NOT
TRANSCRIBED (FN7) IT WILL BE NECESSARY AT THE HEARING ON THE MOTION TO
RECONSTRUCT THE TRIAL RECORD.  WE DECIDE ONLY THE ISSUE TENDERED BY THE
PARTIES AND INTIMATE NO VIEW AS TO WHETHER THE PETITIONER MAY BE
ENTITLED TO CORRECTION OF THE CONSECUTIVE SENTENCE UNDER ANY DIFFERENT
FACT SITUATION WHICH THE RECONSTRUCTED TRIAL RECORD MAY DISCLOSE. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1 THAT STATUTE PROVIDES: 

"WHOEVER SHALL FORCIBLY RESIST, OPPOSE, IMPEDE, INTIMIDATE, OR
INTERFERE WITH ANY PERSON  ...  IF HE IS A FEDERAL OFFICER DESIGNATED
IN SEC. 253 WHILE ENGAGED IN THE PERFORMANCE OF HIS OFFICIAL DUTIES, OR
SHALL ASSAULT HIM ON ACCOUNT OF THE PERFORMANCE OF HIS OFFICIAL DUTIES,
SHALL BE  ... IMPRISONED NOT MORE THAN THREE YEARS  ...  ; AND WHOEVER,
IN THE COMMISSION OF ANY OF THE ACTS DESCRIBED IN THIS SECTION, SHALL
USE A DEADLY OR DANGEROUS WEAPON SHALL BE  ...  IMPRISONED NOT MORE
THAN TEN YEARS  ...  ."  18 U.S.C. (1940 ED.)  SEC.  254.    FN2
LADNER WAS CONVICTED BY A JURY ON THREE SEPARATE COUNTS; ONE FOR
CONSPIRING TO ASSAULT THE OFFICERS, A SECOND FOR ASSAULTING ONE OF THE
OFFICERS, AND A THIRD FOR ASSAULTING THE OTHER OFFICER.   HE WAS
SENTENCED FOR TWO YEARS ON THE CONSPIRACY COUNT, WHICH SENTENCE WAS TO
RUN CONCURRENTLY WITH A 10-YEAR SENTENCE FOR ASSAULTING ONE OF THE
OFFICERS.  A 10-YEAR SENTENCE IMPOSED FOR THE ASSAULT ON THE SECOND
OFFICER WAS TO RUN FROM AND AFTER THE EXPIRATION OF THE FIRST TWO
SENTENCES.  THUS LADNER WAS SENTENCED TO A TOTAL JAIL TERM OF 20
YEARS.  THE PROCEEDINGS INSTITUTED BY LADNER'S CO-CONSPIRATOR, ONE
CAMERON, FOR POST-CONVICTION RELIEF ARE REPORTED IN 84 F. SUPP. 289. 

FN3  THE LETTER, OF JANUARY 3, 1934, TO SENATOR ASHURST, CHAIRMAN OF
THE SENATE COMMITTEE ON THE JUDICIARY, IS AS FOLLOWS: 

"MY DEAR SENATOR: 

"I WISH AGAIN TO RENEW THE RECOMMENDATION OF THIS DEPARTMENT THAT
LEGISLATION BE ENACTED MAKING IT A FEDERAL OFFENSE FORCIBLY TO RESIST,
IMPEDE, OR INTERFERE WITH, OR TO ASSAULT OR KILL, ANY OFFICIAL OR
EMPLOYEE OF THE UNITED STATES WHILE ENGAGED IN, OR ON ACCOUNT OF, THE
PERFORMANCE OF HIS OFFICIAL DUTIES.  CONGRESS HAS ALREADY MADE IT A
FEDERAL OFFENSE TO ASSAULT, RESIST, ETC., OFFICERS OR EMPLOYEES OF THE
BUREAU OF ANIMAL INDUSTRY OF THE DEPARTMENT OF AGRICULTURE WHILE
ENGAGED IN OR ON ACCOUNT OF THE EXECUTION OF THEIR DUTIES (SEC. 62,
C.C.; SEC. 118, TITLE 18, U.S.C.); TO ASSAULT, RESIST, ETC., OFFICERS
AND OTHERS OF THE CUSTOMS AND INTERNAL REVENUE, WHILE ENGAGED IN THE
EXECUTION OF THEIR DUTIES (SEC. 65, C.C.; SEC. 121, TITLE 18, U.S.C.);
TO ASSAULT, RESIST, BEAT, WOUND, ETC., ANY OFFICER OF THE UNITED
STATES, OR OTHER PERSONS DULY AUTHORIZED, WHILE SERVING OR ATTEMPTING
TO SERVE THE PROCESS OF ANY COURT OF THE UNITED STATES (SEC. 140, C.C.;
SEC.  245, TITLE 18, U.S.C.); AND TO ASSAULT, RESIST, ETC., IMMIGRATION
OFFICIALS OR EMPLOYEES WHILE ENGAGED IN THE PERFORMANCE OF THEIR DUTIES
(SEC. 16, IMMIGRATION ACT OF FEB. 5, 1917, C. 29, 39 STAT. 885; SEC.
152, TITLE 8, U.S.C.).  THREE OF THE STATUTES JUST CITED IMPOSE AN
INCREASED PENALTY WHEN A DEADLY OR DANGEROUS WEAPON IS USED IN
RESISTING THE OFFICER OR EMPLOYEE. 

"THE NEED FOR GENERAL LEGISLATION OF THE SAME CHARACTER, FOR THE
PROTECTION OF FEDERAL OFFICERS AND EMPLOYEES OTHER THAN THOSE
SPECIFICALLY EMBRACED IN THE STATUTES ABOVE CITED, BECOMES INCREASINGLY
APPARENT EVERY DAY.  THE FEDERAL GOVERNMENT SHOULD NOT BE COMPELLED TO
RELY UPON THE COURTS OF THE STATES, HOWEVER, RESPECTABLE AND WELL
DISPOSED, FOR THE PROTECTION OF ITS INVESTIGATIVE AND LAW-ENFORCEMENT
PERSONNEL; AND CONGRESS HAS RECOGNIZED THIS FACT AT LEAST TO THE EXTENT
INDICATED BY THE SPECIAL ACTS ABOVE CITED.  THIS DEPARTMENT HAS FOUND
NEED FOR SIMILAR LEGISLATION FOR THE ADEQUATE PROTECTION OF THE SPECIAL
AGENTS OF ITS DIVISION OF INVESTIGATION, SEVERAL OF WHOM HAVE BEEN
ASSAULTED IN THE COURSE OF A YEAR, WHILE IN THE PERFORMANCE OF THEIR
OFFICIAL DUTIES. 

"IN THESE CASES RESORT MUST USUALLY BE HAD TO THE LOCAL POLICE COURT,
WHICH AFFORDS BUT LITTLE RELIEF TO US, UNDER THE CIRCUMSTANCES, IN OUR
EFFORT TO FURTHER THE LEGITIMATE PURPOSES OF THE FEDERAL GOVERNMENT. 
IT WOULD SEEM TO BE PREFERABLE, HOWEVER, INSTEAD OF FURTHER EXTENDING
THE PIECEMEAL LEGISLATION NOW ON THE STATUTE BOOKS, TO ENACT A BROAD
GENERAL STATUTE TO EMBRACE ALL PROPER CASES, BOTH WITHIN AND OUTSIDE
THE SCOPE OF EXISTING LEGISLATION.  OTHER CASES IN POINT ARE ASSAULTS
ON LETTER CARRIERS, TO COVER WHICH THE POST-OFFICE DEPARTMENT HAS FOR
SEVERAL YEARS PAST SOUGHT LEGISLATION; AND THE SERIOUS WOUNDING, A
COUPLE OF YEARS AGO, OF THE WARDEN OF THE FEDERAL PENITENTIARY AT
LEAVENWORTH BY ESCAPED CONVICTS OUTSIDE THE FEDERAL JURISDICTION.  IN
THE LATTER CASE IT WAS POSSIBLE TO PUNISH THE ESCAPED CONVICTS UNDER
FEDERAL LAW FOR THEIR ESCAPE; BUT THEY COULD NOT BE PUNISHED UNDER ANY
FEDERAL LAW FOR THE SHOOTING OF THE WARDEN. 

"I HAVE THE HONOR, THEREFORE, TO ENCLOSE HEREWITH A COPY OF S. 3184,
WHICH WAS INTRODUCED AT THE REQUEST OF THIS DEPARTMENT IN THE SEVENTY
SECOND CONGRESS AND TO URGE ITS REINTRODUCTION IN THE PRESENT CONGRESS;
AND TO EXPRESS THE HOPE THAT IT MAY RECEIVE THE PROMPT AND SERIOUS
CONSIDERATION OF YOUR COMMITTEE. 

                                      "RESPECTFULLY,

                                   "HOMER CUMMINGS,

                                  "ATTORNEY GENERAL." 

SEE, FOR THE LEGISLATIVE HISTORY, S. REP. NO. 535, 73D CONG., 2D
SESS.; H.R. REP. NO. 1455, 73D CONG., 2D SESS.; 78 CONG. REC. 8126
8127. 

FN4  THIS CONCESSION BY THE GOVERNMENT SEEMS NECESSARY IN VIEW OF THE
LACK OF ANY INDICATION THAT ASSAULT WAS TO BE TREATED DIFFERENTLY, AND
IN LIGHT OF 18 U.S.C. SEC. 111, THE PRESENT RECODIFICATION OF SEC. 254,
WHICH LUMPS ASSAULT IN WITH THE REST OF THE OFFENSIVE ACTIONS.  THE
STATUTE NOW PROVIDES THAT "WHOEVER FORCIBLY ASSAULTS, RESISTS, OPPOSES,
IMPEDES, INTIMIDATES, OR INTERFERES WITH" ANY DESIGNATED FEDERAL
OFFICER "WHILE ENGAGED IN OR ON ACCOUNT OF THE PERFORMANCE OF HIS
OFFICIAL DUTIES" IS COMMITTING A CRIME.  THE REVISER'S NOTE INDICATES
THAT THIS CHANGE IN WORDING WAS NOT INTENDED TO BE A SUBSTANTIVE ONE. 

FN5  SEE BURDICK, LAW OF CRIME (1946), SEC. 342; CLARK AND MARSHALL,
LAW OF CRIMES (1958), SEC. 10.16; MILLER ON CRIMINAL LAW (1934) SEC.
99. 

FN6  IN VIEW OF THE TRIAL JUDGE'S RECOLLECTION THAT "MORE THAN ONE
SHOT WAS FIRED INTO THE CAR IN WHICH THE OFFICERS WERE RIDING  ...  "
WE CANNOT SAY THAT IT IS IMPOSSIBLE THAT PETITIONER WAS PROPERLY
CONVICTED OF MORE THAN ONE OFFENSE, EVEN UNDER THE PRINCIPLES WHICH
GOVERN HERE. 

FN7  ALTHOUGH 58 STAT. 5, NOW 28 U.S.C. SEC. 753, WHICH PROVIDES FOR
THE RECORDING OF ALL PROCEEDINGS IN CRIMINAL CASES, WAS ENACTED ON
JANUARY 20, 1944, CONGRESS HAD NOT APPROPRIATED FUNDS FOR THE PAYMENT
OF COURT REPORTERS AT THE TIME OF THE TRIAL IN JUNE 1944.  SEE RICARD
V. UNITED STATES, 148 F.2D 895; VICKERS V. UNITED STATES, 157 F.2D
285. 

MR. JUSTICE CLARK, DISSENTING. 

BY WHAT TO ME IS A DUBIOUS ROUTE, PERMITTING A COLLATERAL ATTACK TO
BE MADE ON THIS OLD JUDGMENT UNDER SEC. 2255 (FN1) PROCEEDINGS, THE
COURT REACHES THE MERITS ONLY TO AGREE FULLY WITH LADNER'S
CONTENTIONS.  AS I SEE IT, THIS ENLARGEMENT OF JURISDICTION UNDER SEC.
2255 WILL SUBJECT THE TRIAL COURT DOCKETS TO A RASH OF APPLICATIONS BY
PRISONERS AND COMPLETELY OVERTURN THE PURPOSE OF THE CONGRESS IN
ADOPTING THE SEC. 2255 PROCEDURE IN LIEU OF HABEAS CORPUS.  MOREOVER,
IT APPEARS THAT BY ADOPTING LADNER'S VIEW ON THE MERITS THE COURT
CLEARLY INFORMS THE CRIMINAL, IF I MIGHT BE PERMITTED TO BORROW A
PHRASE, THAT ASSAULTS ON THE LIVES OF FEDERAL OFFICERS COME JUST "AS
CHEAP BY THE DOZEN." 

NEARLY FOURTEEN YEARS AGO, TWO FEDERAL OFFICERS WERE AMBUSHED AND
SERIOUSLY WOUNDED BY LADNER WHEN HE SHOT THEM POINT-BLANK WITH A
SHOTGUN AS THEY SAT IN THE FRONT SEAT OF A VEHICLE TRANSPORTING SOME
PRISONERS ARRESTED IN A RAID ON AN ILLICIT DISTILLERY.  HE WAS
CONVICTED OF AN ASSAULT ON EACH OF THE OFFICERS.  LADNER CONTENDS THAT
HE FIRED ONLY A SINGLE CHARGE FROM THE SHOTGUN AND IS, THERFORE, GUILTY
OF ONLY ONE OFFENSE, REGARDLESS OF THE NUMBER OF OFFICERS ASSAULTED. 

THE PRINCIPAL ISSUE, AS I SEE THE CASE, IS THE PROCEDURAL ONE UNDER
SEC. 2255, NAMELY WHETHER THE COURT SHOULD ALLOW THIS COLLATERAL ATTACK
ON LADNER'S SENTENCE.  THIS IMPORTANT QUESTION, BOTH ARGUED AND BRIEFED
BY THE GOVERNMENT, IS, I THINK, WRONGLY DECIDED BY THE COURT.  THESE
PROCEEDINGS ARE BY MOTION UNDER SEC. 2255 TO CORRECT THE CONSECUTIVE
SENTENCES OF TEN YEARS IMPOSED ON EACH OF COUNTS 2 AND 3 OF THE
INDICTMENT.  COUNT 2 CHARGES AN ASSAULT ON OFFICER JAMES BUFORD REED,
WHILE COUNT 3 CHARGES ONE ON OFFICER W. W. FROST.  THE RECORD IS
UNCLEAR, AS THE COURT POINTS OUT, AS TO HOW MANY DISCHARGES OF THE
SHOTGUN LADNER FIRED INTO THE VEHICLE.  HENCE A DETERMINATION OF THAT
ISSUE MUST BE MADE BY THE TRIAL COURT ON REMAND OF THE CASE. 

CLEARLY THIS IS AN ERROR THAT SHOULD HAVE BEEN RAISED BY APPEAL.  IT
DID NOT UNDERMINE THE JURISDICTION OF THE ORIGINAL TRIAL COURT, FOR
UNDER THE ALLEGATIONS OF THE INDICTMENT THESE COUNTS CLEARLY STATE
SEPARATE OFFENSES.  IT RAISES NO CONSTITUTIONAL ISSUE.  THE HISTORY OF
SEC. 2255 CLEARLY REVEALS THAT SUCH AN ATTACK WAS NOT AUTHORIZED. 
REFERENCE TO UNITED STATES V. HAYMAN, 342 U.S. 205 (1952), GIVES US A
COMPLETE PICTURE.  THE JUDICIAL CONFERENCE OF THE UNITED STATES
PROPOSED SEC. 2255 TO REMEDY THE "PRACTICAL PROBLEMS THAT HAD ARISEN IN
THE ADMINISTRATION OF THE FEDERAL COURTS' HABEAS CORPUS JURISDICTION." 
THE CONFERENCE IN SUBMITTING THE MEASURE TO THE CONGRESS NOTED THAT: 

"THE MOTION REMEDY BROADLY COVERS ALL SITUATIONS WHERE THE SENTENCE
IS 'OPEN TO COLLATERAL ATTACK.'  AS A REMEDY, IT IS INTENDED TO BE AS
BROAD AS HABEAS CORPUS."  HAYMAN, SUPRA, AT 217. 

IT IS CLEAR THAT IN ENACTING SEC. 2255, CONGRESS DID NOT INTEND TO
ENLARGE THE AVAILABLE GROUNDS FOR COLLATERAL ATTACK, BUT RATHER SOUGHT
ONLY TO CORRECT SERIOUS ADMINISTRATIVE PROBLEMS THAT HAD DEVELOPED IN
THE EXERCISE OVER THE YEARS OF HABEAS CORPUS JURISDICTION. 

THE COURT TODAY HOLDS THAT THE TRIAL COURT MAY HAVE COMMITTED AN
ERROR OF LAW WHICH WILL REQUIRE THE RECONSTRUCTION OF THE EVIDENCE AS
TO THE NUMBER OF SHOTS FIRED BY LADNER.  AS I HAVE INDICATED, THIS MAY
REQUIRE A RETRIAL OF THIS FOURTEEN-YEAR-OLD CASE.  HERE THE INDICTMENT
AND JUDGMENT ARE ADMITTEDLY REGULAR ON THEIR FACES.  THE DISPUTE IS
ENTIRELY WITH THE FACTS OF THE INCIDENT.  THE ISSUE, THERFORE, IS
SQUARELY GOVERNED BY THE PRINCIPLES OF SUNAL V. LARGE, 332 U.S. 174
(1947).  THAT WAS A HABEAS CORPUS PROCEEDING ATTACKING A CONVICTION
ADMITTEDLY OBTAINED AS A RESULT OF ERROR OF THE TRIAL COURT.  AS HERE,
NEITHER THE JURISDICTION OF THE TRIAL COURT NOR CLAIMED CONSTITUTIONAL
VIOLATIONS WERE AT ISSUE.  THE COURT, SPEAKING THROUGH MR. JUSTICE
DOUGLAS, SAID: 

"CONGRESS  ...  HAS PROVIDED A REGULAR, ORDERLY METHOD FOR CORRECTION
OF ALL SUCH ERRORS BY GRANTING AN APPEAL TO THE CIRCUIT COURT OF
APPEALS AND BY VESTING US WITH CERTIORARI JURISDICTION ...  .  EVERY
ERROR IS POTENTIALLY REVERSIBLE ERROR; AND MANY RULINGS OF THE TRIAL
COURT SPELL THE DIFFERENCE BETWEEN CONVICTION AND ACQUITTAL.  IF
DEFENDANTS WHO ACCEPT THE JUDGMENT OF CONVICTION AND DO NOT APPEAL CAN
LATER RENEW THEIR ATTACK ON THE JUDGMENT BY HABEAS CORPUS, LITIGATION
IN THESE CRIMINAL CASES WILL BE INTERMINABLE.  WISE JUDICIAL
ADMINISTRATION OF THE FEDERAL COURTS COUNSELS AGAINST SUCH COURSE, AT
LEAST WHERE THE ERROR DOES NOT TRENCH ON ANY CONSTITUTIONAL RIGHTS OF
DEFENDANTS NOR INVOLVE THE JURISDICTION OF THE TRIAL COURT."  332 U.S.,
AT 181-182. 

THE HISTORY AND LANGUAGE OF SEC. 2255 SHOW THAT THE SAME LIMITATIONS
ARE PRESENT IN SUCH PROCEEDINGS AND THAT THEY ARE EQUALLY
JURISDICTIONAL.  WHAT WAS ENACTED BY CONGRESS TO SOLVE THE PRACTICAL
PROBLEMS CREATED BY THE "GREAT INCREASES" IN HABEAS CORPUS APPLICATIONS
TODAY BECOMES THE TOOL BY WHICH PRISONERS CAN PRY OPEN THEIR
CONVICTIONS ON EVEN BROADER GROUNDS THAN WERE EVER PERMITTED
THERETOFORE.  IT APPEARS ENTIRELY PROBABLE THAT A MUCH GREATER
ADMINISTRATIVE PROBLEM WILL RESULT THAN CONFRONTED THE COURTS BEFORE
THE ENACTMENT OF SEC. 2255. 

THE COURT CITES SEVEN CASES IN WHICH WE DECIDED "QUESTIONS OF
STATUTORY CONSTRUCTION" ALTHOUGH THE QUESTIONS WERE RAISED BY
"COLLATERAL ATTACK UPON CONSECUTIVE SENTENCES  ...  ."  BUT THOSE CASES
ONLY POINT UP MY POSITION THE MORE, I.E., THAT A COLLATERAL ATTACK CAN
BE MADE ONLY WHERE THE ERROR IN THE SENTENCE IS APPARENT FROM THE FACTS
ALLEGED IN THE FOUR CORNERS OF THE INDICTMENT OR ADMITTED BY THE
PARTIES.  IN FIVE OF THE CASES, I.E., IN RE SNOW, 120 U.S. 274 (1887);
TINDER V. UNITED STATES, 345 U.S. 565 (1953); GORE V. UNITED STATES,
357 U.S. 386 (1958); PRINCE V. UNITED STATES, 352 U.S. 322 (1957), AND
EBELING V. MORGAN, 237 U.S. 625 (1915), THE ERROR IN SENTENCING IS
APPARENT FROM THE FACE OF THE INDICTMENT.  IN THE REMAINING TWO CASES,
BELL V. UNITED STATES, 349 U.S. 81 (1955), (FN2) AND MORGAN V. DEVINE,
237 U.S. 632 (1915), THE FACTS WERE ADMITTED.  THE IMPORTANCE OF THIS
DISTINCTION IS INDICATED BY THE COURT IN PRINCE WHERE IT GOES OUT OF
ITS WAY TO POINT OUT THAT IT WAS ADMITTED BY RESPONDENT THAT THE
ROBBERY CHARGED IN COUNT 1 WAS PERFORMED IMMEDIATELY AFTER THE ENTRY
INTO THE BANK, CHARGED IN COUNT 2.  THE MAJORITY CANNOT POINT TO A
SINGLE CASE IN THIS COURT WHERE COLLATERAL ATTACK ON CONSECUTIVE
SENTENCES HAS BEEN PERMITTED UNDER SEC. 2255 WHEN THE FACTS WERE IN
DISPUTE.  THERE IS NONE.  THE LAW HAS LONG BEEN SETTLED, FORMERLY UNDER
HABEAS CORPUS AND NOW UNDER SEC. 2225, TO THE CONTRARY. 

HOWEVER, EVEN MORE SURPRISING TO ME, AS IT RUNS COUNTER TO MY
UNDERSTANDING OF EFFICIENT JUDICIAL ADMINISTRATION, IS THE COURT'S
STATEMENT THAT ITS HOLDING TODAY SHOULD NOT BE CONSIDERED AS
"INTIMATING ANY VIEW AS TO THE AVAILABILITY OF A COLLATERAL REMEDY IN
ANOTHER CASE WHERE THAT QUESTION IS PROPERLY RAISED, AND IS ADEQUATELY
BRIEFED AND ARGUED IN THIS COURT."  I FIND NO COUNTERPART FOR SUCH A
HANDLING IN OUR PRECEDENTS.  IMPLICIT THEREIN IS THE SUGGESTION THAT
COME ANOTHER CASE WHERE THE POINT IS "PROPERLY RAISED AND ADEQUATELY
BRIEFED AND ARGUED IN THIS COURT" (FN3) THEN THE CONCLUSION WILL BE
DIFFERENT.  MEANWHILE, THE COURT SAYS, LADNER IS NO PRECEDENT ON THE
QUESTION OF "THE AVAILABILITY OF A COLLATERAL REMEDY."  DESPITE THIS,
THE COURT PERMITS ITS USE HERE.  THIS AD HOC DISPOSITION IS NOT IN
KEEPING WITH GOOD BUSINESS CONDUCT SO NECESSARY IN COURT
ADMINISTRATION.    I DO NOT REACH THE MERITS.  THE CONGRESS, HOWEVER,
MAY CORRECT THAT ERROR OF THE COURT.  BUT THE AD HOC MANNER IN WHICH IT
HAS TODAY DISPOSED OF THE CASE WE SHALL HAVE WITH US ALWAYS - A
PRECEDENT FOR OTHERS TO FOLLOW. 

FN1  28 U.S.C. SEC. 2255 (1952). 

FN2  THOUGH THE SEC. 2255 ISSUE WAS MENTIONED IN THE GOVERNMENT'S
REPLY TO THE PETITION FOR CERTIORARI IN BELL, THE QUESTION WAS NOT
BRIEFED NOR ARGUED ON THE MERITS. 

FN3  THE POINT WAS RAISED IN THIS COURT.  THE GOVERNMENT DEVOTED FOUR
AND ONE-HALF PAGES OF ITS 29-PAGE BRIEF TO IT, DISCUSSING 18 SEPARATE
CASES.  MY RESEARCH OF THE QUESTION INDICATES THERE WOULD BE LITTLE TO
ADD TO THE GOVERNMENT'S DISCUSSION. 
..END :





















LEEDOM, NATIONAL LABOR RELATIONS BOARD V. KYNE 358 U.S. 184 


NO. 14.  ARGUED OCTOBER 23, 1958 - DECIDED DECEMBER 15, 1958 - 101 U.S.
APP. D.C. 398, 249 F.2D 490, AFFIRMED. 


DETERMINING THE UNIT APPROPRIATE FOR COLLECTIVE BARGAINING PURPOSES,
"THE BOARD SHALL NOT (1) DECIDE THAT ANY UNIT IS APPROPRIATE FOR SUCH
PURPOSES IF SUCH UNIT INCLUDES BOTH PROFESSIONAL EMPLOYEES AND
EMPLOYEES WHO ARE NOT PROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF SUCH
PROFESSIONAL EMPLOYEES VOTE FOR INCLUSION IN SUCH UNIT."  AFTER
REFUSING TO TAKE A VOTE AMONG THE PROFESSIONAL EMPLOYEES OF A LABOR
ORGANIZATION TO DETERMINE WHETHER A MAJORITY OF THEM WOULD "VOTE FOR
INCLUSION IN SUCH UNIT," THE BOARD INCLUDED BOTH PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES IN THE BARGAINING UNIT THAT IT FOUND
APPROPRIATE.  HELD:  A FEDERAL DISTRICT COURT HAD JURISDICTION OF AN
ORIGINAL SUIT TO SET ASIDE THE BOARD'S DETERMINATION BECAUSE IT WAS
MADE IN EXCESS OF THE BOARD'S POWERS.  PP. 184-191. 

LEEDOM ET AL., MEMBERS OF THE NATIONAL LABOR RELATIONS BOARD, V. KYNE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

STAT. 143, 29 U.S.C. SEC. 159(B)(1), PROVIDES THAT, IN DETERMINING THE
UNIT APPROPRIATE FOR COLLECTIVE BARGAINING PURPOSES, "THE BOARD SHALL
NOT (1) DECIDE THAT ANY UNIT IS APPROPRIATE FOR SUCH PURPOSES IF SUCH
UNIT INCLUDES BOTH PROFESSIONAL EMPLOYEES AND EMPLOYEES WHO ARE NOT
PROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF SUCH PROFESSIONAL EMPLOYEES
VOTE FOR INCLUSION IN SUCH UNIT."  THE BOARD, AFTER REFUSING TO TAKE A
VOTE AMONG THE PROFESSIONAL EMPLOYEES TO DETERMINE WHETHER A MAJORITY
OF THEM WOULD "VOTE FOR INCLUSION IN SUCH UNIT," INCLUDED BOTH
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE BARGAINING UNIT THAT
IT FOUND APPROPRIATE.  THE SOLE AND NARROW QUESTION PRESENTED IS
WHETHER A FEDERAL DISTRICT COURT HAS JURISDICTION OF AN ORIGINAL SUIT
TO VACATE THAT DETERMINATION OF THE BOARD BECAUSE MADE IN EXCESS OF ITS
POWERS. 

THE FACTS ARE UNDISPUTED.  BUFFALO SECTION, WESTINGHOUSE ENGINEERS
ASSOCIATION, ENGINEERS AND SCIENTISTS OF AMERICA, A VOLUNTARY
UNINCORPORATED LABOR ORGANIZATION, HEREAFTER CALLED THE ASSOCIATION,
WAS CREATED FOR THE PURPOSE OF PROMOTING THE ECONOMIC AND PROFESSIONAL
STATUS OF THE NONSUPERVISORY PROFESSIONAL EMPLOYEES OF WESTINGHOUSE
ELECTRIC CORPORATION AT ITS PLANT IN CHEEKTOWAGA, NEW YORK, THROUGH
COLLECTIVE BARGAINING WITH THEIR EMPLOYER.  IN OCTOBER 1955, THE
ASSOCIATION PETITIONED THE NATIONAL LABOR RELATIONS BOARD FOR
CERTIFICATION AS THE EXCLUSIVE COLLECTIVE BARGAINING AGENT OF ALL
NONSUPERVISORY PROFESSIONAL EMPLOYEES, BEING THEN 233 IN NUMBER, OF THE
WESTINGHOUSE COMPANY AT ITS CHEEKTOWAGA PLANT, PURSUANT TO THE
PROVISIONS OF SEC. 9 OF THE ACT, 29 U.S.C. SEC. 159.  A HEARING WAS
HELD BY THE BOARD UPON THAT PETITION.  A COMPETING LABOR ORGANIZATION
WAS PERMITTED BY THE BOARD TO INTERVENE.  IT ASKED THE BOARD TO EXPAND
THE UNIT TO INCLUDE EMPLOYEES IN FIVE OTHER CATEGORIES WHO PERFORMED
TECHNICAL WORK AND WERE THOUGHT BY IT TO BE "PROFESSIONAL EMPLOYEES"
WITHIN THE MEANING OF SEC. 2(12) OF THE ACT, 29 U.S.C. SEC. 152(12). 
THE BOARD FOUND THAT THEY WERE NOT PROFESSIONAL EMPLOYEES WITHIN THE
MEANING OF THE ACT.  HOWEVER, IT FOUND THAT NINE EMPLOYEES IN THREE OF
THOSE CATEGORIES SHOULD NEVERTHELESS BE INCLUDED IN THE UNIT BECAUSE
THEY "SHARE A CLOSE COMMUNITY OF EMPLOYMENT INTERESTS WITH THE
PROFESSIONAL EMPLOYEES, AND THEIR INCLUSION WOULD NOT DESTROY THE
PREDOMINANTLY PROFESSIONAL CHARACTER OF SUCH A UNIT."  THE BOARD, AFTER
DENYING THE ASSOCIATION'S REQUEST TO TAKE A VOTE AMONG THE PROFESSIONAL
EMPLOYEES TO DETERMINE WHETHER A MAJORITY OF THEM FAVORED "INCLUSION IN
SUCH UNIT," INCLUDED THE 233 PROFESSIONAL EMPLOYEES AND THE NINE
NONPROFESSIONAL EMPLOYEES IN THE UNIT AND DIRECTED AN ELECTION TO
DETERMINE WHETHER THEY DESIRED TO BE REPRESENTED BY THE ASSOCIATION, BY
THE OTHER LABOR ORGANIZATION, OR BY NEITHER.  THE ASSOCIATION MOVED THE
BOARD TO STAY THE ELECTION AND TO AMEND ITS DECISION BY EXCLUDING THE
NONPROFESSIONAL EMPLOYEES FROM THE UNIT.  THE BOARD DENIED THAT MOTION
AND WENT AHEAD WITH THE ELECTION AT WHICH THE ASSOCIATION RECEIVED A
MAJORITY OF THE VALID VOTES CAST AND WAS THEREAFTER CERTIFIED BY THE
BOARD AS THE COLLECTIVE BARGAINING AGENT FOR THE UNIT. 

THEREAFTER RESPONDENT, INDIVIDUALLY, AND AS PRESIDENT OF THE
ASSOCIATION, BROUGHT THIS SUIT IN THE DISTRICT COURT AGAINST THE
MEMBERS OF THE BOARD, ALLEGING THE FOREGOING FACTS AND ASSERTING THAT
THE BOARD HAD EXCEEDED ITS STATUTORY POWER IN INCLUDING THE
PROFESSIONAL EMPLOYEES, WITHOUT THEIR CONSENT, IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES IN VIOLATION OF SEC. 9(B)(1) WHICH COMMANDS
THAT THE BOARD "SHALL NOT" DO SO, AND PRAYING, AMONG OTHER THINGS, THAT
THE BOARD'S ACTION BE SET ASIDE.  THE DEFENDANTS, MEMBERS OF THE BOARD,
MOVED TO DISMISS FOR WANT OF JURISDICTION AND, IN THE ALTERNATIVE, FOR
A SUMMARY JUDGMENT.  THE PLAINTIFF ALSO MOVED FOR SUMMARY JUDGMENT. 
THE TRIAL COURT FOUND THAT THE BOARD HAD DISOBEYED THE EXPRESS COMMAND
OF SEC. 9(B)(1) IN INCLUDING NONPROFESSIONAL EMPLOYEES AND PROFESSIONAL
EMPLOYEES IN THE SAME UNIT WITHOUT THE LATTER'S CONSENT, AND IN DOING
SO HAD ACTED IN EXCESS OF ITS POWERS TO THE INJURY OF THE PROFESSIONAL
EMPLOYEES, AND THAT THE COURT HAD JURISDICTION TO GRANT THE RELIEF
PRAYED.  IT ACCORDINGLY DENIED THE BOARD'S MOTION AND GRANTED THE
PLAINTIFF'S MOTION AND ENTERED JUDGMENT SETTING ASIDE THE BOARD'S
DETERMINATION OF THE BARGAINING UNIT AND ALSO THE ELECTION AND THE
BOARD'S CERTIFICATION. 

ON THE BOARD'S APPEAL IT DID NOT CONTEST THE TRIAL COURT'S CONCLUSION
THAT THE BOARD, IN COMMINGLING PROFESSIONAL WITH NONPROFESSIONAL
EMPLOYEES IN THE UNIT, HAD ACTED IN EXCESS OF ITS POWERS AND HAD
THEREBY WORKED INJURY TO THE STATUTORY RIGHTS OF THE PROFESSIONAL
EMPLOYEES.  INSTEAD, IT CONTENDED ONLY THAT THE DISTRICT COURT LACKED
JURISDICTION TO ENTERTAIN THE SUIT.  THE COURT OF APPEALS HELD THAT THE
DISTRICT COURT DID HAVE JURISDICTION AND AFFIRMED ITS JUDGMENT.  101
APP. D.C. 398, 249 F.2D 490.  BECAUSE OF THE IMPORTANCE OF THE QUESTION
AND THE FACT THAT IT HAS BEEN LEFT OPEN IN OUR PREVIOUS DECISIONS, WE
GRANTED CERTIORARI, 355 U.S. 922. 

PETITIONERS, MEMBERS OF THE BOARD, CONCEDE HERE THAT THE DISTRICT
COURT HAD JURISDICTION OF THE SUIT UNDER SEC. 24(8) OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 1337, UNLESS THE REVIEW PROVISIONS OF THE NATIONAL
LABOR RELATIONS ACT DESTROYED IT. IN AMERICAN FEDERATION OF LABOR V.
LABOR BOARD, 308 U.S. 401, THIS COURT HELD THAT A BOARD ORDER IN
CERTIFICATION PROCEEDINGS UNDER SEC. 9 IS NOT "A FINAL ORDER" AND
THERFORE IS NOT SUBJECT TO JUDICIAL REVIEW EXCEPT AS IT MAY BE DRAWN IN
QUESTION BY A PETITION FOR ENFORCEMENT OR REVIEW OF AN ORDER, MADE
UNDER SEC. 10(C) OF THE ACT, RESTRAINING AN UNFAIR LABOR PRACTICE.  BUT
THE COURT WAS AT PAINS TO POINT OUT IN THAT CASE THAT "THE QUESTION
THERE PRESENTED WAS DISTINCT FROM  ...  WHETHER PETITIONERS ARE
PRECLUDED BY THE PROVISIONS OF THE WAGNER ACT FROM MAINTAINING AN
INDEPENDENT SUIT IN A DISTRICT COURT TO SET ASIDE THE BOARD'S ACTION
BECAUSE CONTRARY TO THE STATUTE  ...  ."  ID., AT 404.  THE BOARD
ARGUED THERE, AS IT DOES HERE, THAT THE PROVISIONS OF THE ACT,
PARTICULARLY SEC. 9(D), HAVE FORECLOSED REVIEW OF ITS ACTION BY AN
ORIGINAL SUIT IN A DISTRICT COURT.  THIS COURT SAID:  "BUT THAT
QUESTION IS NOT PRESENTED FOR DECISION BY THE RECORD BEFORE US.  ITS
ANSWER INVOLVES A DETERMINATION WHETHER THE WAGNER ACT, IN SO FAR AS IT
HAS GIVEN LEGALLY ENFORCEABLE RIGHTS, HAS DEPRIVED THE DISTRICT COURTS
OF SOME PORTION OF THEIR ORIGINAL JURISDICTION CONFERRED BY SEC. 24 OF
THE JUDICIAL CODE.  IT CAN BE APPROPRIATELY ANSWERED ONLY UPON A
SHOWING IN SUCH A SUIT THAT UNLAWFUL ACTION OF THE BOARD HAS INFLICTED
AN INJURY ON THE PETITIONERS FOR WHICH THE LAW, APART FROM THE REVIEW
PROVISIONS OF THE WAGNER ACT, AFFORDS A REMEDY.  THIS QUESTION CAN BE
PROPERLY AND ADEQUATELY CONSIDERED ONLY WHEN IT IS BROUGHT TO US FOR
REVIEW UPON A SUITABLE RECORD."  ID., AT 412. 

THE RECORD IN THIS CASE SQUARELY PRESENTS THE QUESTION FOUND NOT TO
HAVE BEEN PRESENTED BY THE RECORD IN AMERICAN FEDERATION OF LABOR V.
LABOR BOARD, SUPRA.  THIS CASE, IN ITS POSTURE BEFORE US, INVOLVES
"UNLAWFUL ACTION OF THE BOARD WHICH HAS INFLICTED AN INJURY ON THE
RESPONDENT."  DOES THE LAW, "APART FROM THE REVIEW PROVISIONS OF THE
...  ACT," AFFORD A REMEDY?  WE THINK THE ANSWER SURELY MUST BE YES. 
THIS SUIT IS NOT ONE TO "REVIEW," IN THE SENSE OF THAT TERM AS USED IN
THE ACT, A DECISION OF THE BOARD MADE WITHIN ITS JURISDICTION.  RATHER
IT IS ONE TO STRIKE DOWN AN ORDER OF THE BOARD MADE IN EXCESS OF ITS
DELEGATED POWERS AND CONTRARY TO A SPECIFIC PROHIBITION IN THE ACT. 
THE UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE BARGAINING, "THE
BOARD SHALL NOT (1) DECIDE THAT ANY UNIT IS APPROPRIATE FOR SUCH
PURPOSES IF SUCH UNIT INCLUDES BOTH PROFESSIONAL EMPLOYEES AND
EMPLOYEES WHO ARE NOT PROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF SUCH
PROFESSIONAL EMPLOYEES VOTE FOR INCLUSION IN SUCH UNIT."  YET THE BOARD
INCLUDED IN THE UNIT EMPLOYEES WHOM IT FOUND WERE NOT PROFESSIONAL
EMPLOYEES, AFTER REFUSING TO DETERMINE WHETHER A MAJORITY OF THE
PROFESSIONAL EMPLOYEES WOULD "VOTE FOR INCLUSION IN SUCH UNIT." 
PLAINLY, THIS WAS AN ATTEMPTED EXERCISE OF POWER THAT HAD BEEN
SPECIFICALLY WITHHELD.  IT DEPRIVED THE PROFESSIONAL EMPLOYEES OF A
"RIGHT" ASSURED TO THEM BY CONGRESS.  SURELY, IN THESE CIRCUMSTANCES, A
FEDERAL DISTRICT COURT HAS JURISDICTION OF AN ORIGINAL SUIT TO PREVENT
DEPRIVATION OF A RIGHT SO GIVEN. 

IN TEXAS & NEW ORLEANS R. CO. V. RAILWAY CLERKS, 281 U.S. 548, IT WAS
CONTENDED THAT, BECAUSE NO REMEDY HAD BEEN EXPRESSLY GIVEN FOR REDRESS
OF THE CONGRESSIONALLY CREATED RIGHT IN SUIT, THE ACT CONFERRED "MERELY
AN ABSTRACT RIGHT WHICH WAS NOT INTENDED TO BE ENFORCED BY LEGAL
PROCEEDINGS."  ID., AT 558.  THIS COURT REJECTED THAT CONTENTION.  IT
SAID:  "WHILE AN AFFIRMATIVE DECLARATION OF DUTY CONTAINED IN A
LEGISLATIVE ENACTMENT MAY BE OF IMPERFECT OBLIGATION BECAUSE NOT
ENFORCEABLE IN TERMS, A DEFINITE STATUTORY PROHIBITION OF CONDUCT WHICH
WOULD THWART THE DECLARED PURPOSE OF THE LEGISLATION CANNOT BE
DISREGARDED  ...  .  IF CONGRESS INTENDED THAT THE PROHIBITION, AS THUS
CONSTRUED, SHOULD BE ENFORCED, THE COURTS WOULD ENCOUNTER NO DIFFICULTY
IN FULFILLING ITS PURPOSE ...  .  THE DEFINITE PROHIBITION WHICH
CONGRESS INSERTED IN THE ACT CAN NOT THEREFORE BE OVERRIDDEN IN THE
VIEW THAT CONGRESS INTENDED IT TO BE IGNORED.  AS THE PROHIBITION WAS
APPROPRIATE TO THE AIM OF CONGRESS, AND IS CAPABLE OF ENFORCEMENT, THE
CONCLUSION MUST BE THAT ENFORCEMENT WAS CONTEMPLATED."  ID., AT 568,
569.  AND COMPARE VIRGINIA R. CO. V. SYSTEM FEDERATION, 300 U.S. 515. 

IN SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297, THIS
COURT HELD THAT THE DISTRICT COURT DID NOT HAVE JURISDICTION OF AN
ORIGINAL SUIT TO REVIEW AN ORDER OF THE NATIONAL MEDIATION BOARD
DETERMINING THAT ALL YARDMEN OF THE RAIL LINES OPERATED BY THE NEW YORK
CENTRAL SYSTEM CONSTITUTED AN APPROPRIATE BARGAINING UNIT, BECAUSE THE
RAILWAY LABOR BOARD HAD ACTED WITHIN ITS DELEGATED POWERS.  BUT IN THE
COURSE OF THAT OPINION THE COURT ANNOUNCED PRINCIPLES THAT ARE
CONTROLLING HERE.  "IF THE ABSENCE OF JURISDICTION OF THE FEDERAL
COURTS MEANT A SACRIFICE OR OBLITERATION OF A RIGHT WHICH CONGRESS HAD
CREATED, THE INFERENCE WOULD BE STRONG THAT CONGRESS INTENDED THE
STATUTORY PROVISIONS GOVERNING THE GENERAL JURISDICTION OF THOSE COURTS
TO CONTROL.  THAT WAS THE PURPORT OF THE DECISIONS OF THIS COURT IN
TEXAS & NEW ORLEANS R. CO. V. BROTHERHOOD OF CLERKS, 281 U.S. 548, AND
VIRGINIA R. CO. V. SYSTEM FEDERATION, 300 U.S. 515.  IN THOSE CASES IT
WAS APPARENT THAT BUT FOR THE GENERAL JURISDICTION OF THE FEDERAL
COURTS THERE WOULD BE NO REMEDY TO ENFORCE THE STATUTORY COMMANDS WHICH
CONGRESS HAD WRITTEN INTO THE RAILWAY LABOR ACT.  THE RESULT WOULD HAVE
BEEN THAT THE 'RIGHT' OF COLLECTIVE BARGAINING WAS UNSUPPORTED BY ANY
LEGAL SANCTION.  THAT WOULD HAVE ROBBED THE ACT OF ITS VITALITY AND
THWARTED ITS PURPOSE."  ID., AT 300. 

HERE, DIFFERENTLY FROM THE SWITCHMEN'S CASE, "ABSENCE OF JURISDICTION
OF THE FEDERAL COURTS" WOULD MEAN "A SACRIFICE OR OBLITERATION OF A
RIGHT WHICH CONGRESS" HAS GIVEN PROFESSIONAL EMPLOYEES, FOR THERE IS NO
OTHER MEANS, WITHIN THEIR CONTROL (AMERICAN FEDERATION OF LABOR V.
LABOR BOARD, SUPRA), TO PROTECT AND ENFORCE THAT RIGHT.  AND "THE
INFERENCE IS STRONG THAT CONGRESS INTENDED THE STATUTORY PROVISIONS
GOVERNING THE GENERAL JURISDICTION OF THOSE COURTS TO CONTROL."  320
U.S., AT 300.  THIS COURT CANNOT LIGHTLY INFER THAT CONGRESS DOES NOT
INTEND JUDICIAL PROTECTION OF RIGHTS IT CONFERS AGAINST AGENCY ACTION
TAKEN IN EXCESS OF DELEGATED POWERS.  CF. HARMON V. BRUCKER, 355 U.S.
579; STARK V. WICKARD, 321 U.S. 288; SCHOOL OF MAGNETIC HEALING V.
MCANNULTY, 187 U.S. 94. 

WHERE, AS HERE, CONGRESS HAS GIVEN A "RIGHT" TO THE PROFESSIONAL
EMPLOYEES IT MUST BE HELD THAT IT INTENDED THAT RIGHT TO BE ENFORCED,
AND "THE COURTS  ...  ENCOUNTER NO DIFFICULTY IN FULFILLING ITS
PURPOSE."  TEXAS & NEW ORLEANS R. CO. V. RAILWAY CLERKS, SUPRA, AT
568. 

THE COURT OF APPEALS WAS RIGHT IN HOLDING, IN THE CIRCUMSTANCES OF
THIS CASE, THAT THE DISTRICT COURT HAD JURISDICTION OF THIS SUIT, AND
ITS JUDGMENT IS AFFIRMED. 

MR. JUSTICE BRENNAN, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

THE LEGISLATIVE HISTORY OF THE WAGNER ACT, (FN1) AND OF THE TAFT
HARTLEY AMENDMENTS, (FN2) SHOWS A CONSIDERED CONGRESSIONAL PURPOSE TO
RESTRICT JUDICIAL REVIEW OF NATIONAL LABOR RELATIONS BOARD
REPRESENTATION CERTIFICATIONS TO REVIEW IN THE COURTS OF APPEALS IN THE
CIRCUMSTANCES SPECIFIED IN SEC. 9(D), 29 U.S.C. SEC. 159(D).  THE
QUESTION WAS EXTENSIVELY DEBATED WHEN BOTH ACTS WERE BEING CONSIDERED,
AND ON BOTH OCCASIONS CONGRESS CONCLUDED THAT, UNLESS DRASTICALLY
LIMITED, TIME-CONSUMING COURT PROCEDURES WOULD SERIOUSLY THREATEN TO
FRUSTRATE THE BASIC NATIONAL POLICY OF PREVENTING INDUSTRIAL STRIFE AND
ACHIEVING INDUSTRIAL PEACE BY PROMOTING COLLECTIVE BARGAINING.    THE
CONGRESS HAD BEFORE IT WHEN CONSIDERING THE WAGNER ACT THE CONCRETE
EVIDENCE THAT DELAYS PENDING TIME-CONSUMING JUDICIAL REVIEW COULD BE A
SERIOUS HINDRANCE TO THE PRIMARY OBJECTIVE OF THE ACT - BRINGING
EMPLOYERS AND EMPLOYEES TOGETHER TO RESOLVE THEIR DIFFERENCES THROUGH
DISCUSSION.  CONGRESS WAS ACUTELY AWARE OF THE EXPERIENCE OF THE
PREDECESSOR OF THE PRESENT LABOR BOARD (FN3) UNDER THE NATIONAL
INDUSTRIAL RECOVERY ACT, WHICH PROVIDED THAT INVESTIGATIONS AND
CERTIFICATIONS BY THE BOARD COULD BE BROUGHT DIRECTLY TO THE COURTS FOR
REVIEW.  SUCH DIRECT REVIEW WAS DETERMINED BY THE CONGRESS TO BE
"PRODUCTIVE OF A LARGE MEASURE OF INDUSTRIAL STRIFE  ...  ," (FN4) AND
WAS SPECIFICALLY ELIMINATED IN THE WAGNER ACT.  ALTHOUGH CONGRESS
RECOGNIZED THAT IT WAS NECESSARY TO DETERMINE EMPLOYEE REPRESENTATIVES
BEFORE COLLECTIVE BARGANING COULD BEGIN, CONGRESS CONCLUDED THAT THE
CHANCE FOR INDUSTRIAL PEACE INCREASED CORRELATIVELY TO HOW QUICKLY
COLLECTIVE BARGAINING COMMENCED.  FOR THIS REASON CONGRESS ORDAINED
THAT THE COURTS SHOULD NOT INTERFERE WITH THE PROMPT HOLDING OF
REPRESENTATION ELECTIONS OR THE COMMENCEMENT OF COLLECTIVE BARGAINING
ONCE AN EMPLOYEE REPRESENTATIVE HAS BEEN CHOSEN.  (FN5)  CONGRESS KNEW
THAT IF DIRECT JUDICIAL REVIEW OF THE BOARD'S INVESTIGATION AND
CERTIFICATION OF REPRESENTATIVES WAS NOT BARRED, "THE GOVERNMENT CAN BE
DELAYED INDEFINITELY BEFORE IT TAKES THE FIRST STEP TOWARD INDUSTRIAL
PEACE."  (FN6) THEREFORE, SEC. 9(D) WAS WRITTEN TO PROVIDE "FOR REVIEW
IN THE COURTS ONLY AFTER THE ELECTION HAS BEEN HELD AND THE BOARD HAS
ORDERED THE EMPLOYER TO DO SOMETHING PREDICATED UPON THE RESULTS OF THE
ELECTION."  (FN7)  AFTER THE WAGNER ACT WAS PASSED, A PROPOSED
AMENDMENT TO ALLOW JUDICIAL REVIEW AFTER AN ELECTION BUT BEFORE AN
UNFAIR LABOR PRACTICE ORDER WAS SPECIFICALLY REJECTED.  (FN8)  IN
SHORT, CONGRESS SET ITSELF FIRMLY AGAINST DIRECT JUDICIAL REVIEW OF THE
INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES, AND REQUIRED THE
PROMPT INITIATION OF THE COLLECTIVE-BARGAINING PROCESS AFTER THE
BOARD'S CERTIFICATION, BECAUSE OF THE RISK THAT TIME-CONSUMING REVIEW
MIGHT DEFEAT THE OBJECTIVES OF THE NATIONAL LABOR POLICY.  SEE AMERICAN
FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. 401, 409-411; MADDEN V.
BROTHERHOOD AND UNION OF TR. EMPLOYEES, 147 F.2D 439. 

WHEN THE TAFT-HARTLEY AMENDMENTS WERE UNDER CONSIDERATION, EMPLOYERS
COMPLAINED THAT BECAUSE SEC. 9(D) ALLOWED JUDICIAL REVIEW TO AN
EMPLOYER ONLY WHEN UNFAIR LABOR PRACTICE CHARGES WERE BASED IN WHOLE OR
IN PART UPON FACTS CERTIFIED FOLLOWING AN INVESTIGATION OF
REPRESENTATIVES, THESE "CUMBERSOME PROCEEDINGS" MEANT THAT THE EMPLOYER
COULD HAVE REVIEW ONLY BY COMMITTING AN UNFAIR LABOR PRACTICE "NO
MATTER HOW MUCH IN GOOD FAITH HE DOUBTED THE VALIDITY OF THE
CERTIFICATION."  (FN9)  A HOUSE AMENDMENT THEREFORE PROVIDED FOR DIRECT
REVIEW IN THE COURTS OF APPEALS OF BOARD CERTIFICATIONS ON APPEAL OF
ANY PERSON INTERESTED, AS FROM A FINAL ORDER OF THE BOARD.  (FN10)
OPPONENTS REVIVED THE SAME ARGUMENTS SUCCESSFULLY EMPLOYED IN THE
WAGNER ACT DEBATES:  "DELAY WOULD BE PILED UPON DELAY, DURING WHICH
TIME COLLECTIVE BARGAINING WOULD BE SUSPENDED PENDING DETERMINATION OF
THE STATUS OF THE BARGAINING AGENT.  SUCH DELAYS CAN ONLY RESULT IN
INDUSTRIAL STRIFE."  (FN11)  BOTH SIDES RECOGNIZED THAT THE HOUSE
AMENDMENT WOULD PRODUCE A FUNDAMENTAL CHANGE IN THE LAW.  (FN12)  THE
SENATE REJECTED THE HOUSE AMENDMENT; THE AMENDMENTS PROPOSED BY THAT
BODY CONTINUED ONLY THE INDIRECT AND LIMITED REVIEW PROVIDED IN
ORIGINAL SEC. 9(D).  IN CONFERENCE, THE SENATE VIEW PREVAILED.  (FN13)
SENATOR TAFT REPORTED:  (FN14) 

"SUBSECTION 9(D) OF THE CONFERENCE AGREEMENT CONFORMS TO THE SENATE
AMENDMENT.  THE HOUSE BILL CONTAINED A PROVISION WHICH WOULD HAVE
PERMITTED JUDICIAL REVIEW OF CERTIFICATIONS EVEN BEFORE THE ENTRY OF AN
UNFAIR LABOR PRACTICE ORDER.  IN RECEDING ON THEIR INSISTENCE ON THIS
PORTION, THE HOUSE YIELDED TO THE VIEW OF THE SENATE CONFEREES THAT
SUCH PROVISION WOULD PERMIT DIALTORY TACTICS IN REPRESENTATION
PROCEEDINGS." 

THE COURT TODAY OPENS A GAPING HOLE IN THIS CONGRESSIONAL WALL
AGAINST DIRECT RESORT TO THE COURTS.  THE COURT HOLDS THAT A PARTY
ALLEGING THAT THE BOARD WAS GUILTY OF "UNLAWFUL ACTION" IN MAKING AN
INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES NEED NOT AWAIT
JUDICIAL REVIEW UNTIL THE SITUATION SPECIFIED IN SEC. 9(D) ARISES, BUT
HAS A CASE IMMEDIATELY COGNIZABLE BY THE DISTRICT COURT UNDER THE
"ORIGINAL JURISDICTION" GRANTED BY 28 U.S.C. SEC. 1337 OF "ANY CIVIL
ACTION OR PROCEEDING ARISING UNDER ANY ACT OF CONGRESS REGULATING
COMMERCE."  THE COURT, BORROWING A STATEMENT FROM SWITCHMEN'S UNION V.
NATIONAL MEDIATION BOARD, 320 U.S. 297, 300, FINDS THAT, IN SUCH CASE
"THE INFERENCE IS STRONG THAT CONGRESS INTENDED THE STATUTORY
PROVISIONS GOVERNING THE GENERAL JURISDICTION OF THOSE DISTRICT COURTS
TO CONTROL." 

THERE IS NOTHING IN THE LEGISLATIVE HISTORY TO INDICATE THAT THE
CONGRESS INTENDED ANY EXCEPTION FROM THE REQUIREMENT THAT COLLECTIVE
BARGAINING BEGIN WITHOUT AWAITING JUDICIAL REVIEW OF A BOARD
CERTIFICATION OR THE INVESTIGATION PRECEDING IT.  CERTAINLY NOTHING
APPEARS THAT AN EXCEPTION WAS INTENDED WHERE THE ATTACK UPON THE
BOARD'S ACTION IS BASED UPON AN ALLEGED MISINTERPRETATION OF THE
STATUTE.  THE POLICY BEHIND THE LIMITATION OF JUDICIAL REVIEW APPLIES
JUST AS CLEARLY WHEN THE CHALLENGE IS MADE ON THIS GROUND.  PLAINLY
DIRECT JUDICIAL REVIEW OF A BOARD'S INTREPRETATION OF THE STATUTE IS AS
LIKELY TO BE AS DRAWN OUT, AND THUS AS FRUSTRATIVE OF THE NATIONAL
POLICY, AS IS REVIEW OF ANY OTHER TYPE OF BOARD DECISION.  THAT APPEARS
FROM THE TIMETABLE IN INLAND EMPIRE DISTRICT COUNCIL V. MILLIS, 325
U.S. 697.  THAT CASE ALSO INVOLVED A CHALLENGE IN A DISTRICT COURT TO A
STATUTORY INTERPRETATION BY THE BOARD IN A REPRESENTATION PROCEEDING. 
THE COURT HELD THAT IT WAS NOT NECESSARY TO REACH THE QUESTION OF THE
DISTRICT COURT'S JURISDICTION SINCE IT HAD NOT BEEN SHOWN THAT THE
BOARD'S INTERPRETATION OF THE PERTINENT STATUTE WAS ERRONEOUS.  BUT
OVER TWO YEARS ELAPSED WHILE THE QUESTION WAS BEING LITIGATED.  THE
HEARING WHICH LED TO THE CERTIFICATION WAS HELD IN MAY 1943 AND THIS
COURT'S DECISION WAS ANNOUNCED ON JUNE 11, 1945. 

IF THERE BE ERROR IN THE BOARD'S STATUTORY INTERPRETATION HERE,
ALTHOUGH THERE WAS NONE IN INLAND EMPIRE COUNCIL, I ASK, AGAIN, WHERE
EVEN A SCINTILLA OF EVIDENCE IS TO BE FOUND THAT CONGRESS INTENDED AN
EXCEPTION TO PERMIT DIRECT JUDICIAL REVIEW FOR BOARD ERRORS IN
STATUTORY INTERPRETATION, OBVIOUS OR DEBATABLE?  OF COURSE, THERE IS
NONE.  INDEED THE EVIDENCE TO THE CONTRARY THAT CONGRESS INTENDED ONLY
LIMITED REVIEW IS SO COMPELLING THAT I CAN SEE NO ESCAPE FROM THE
CONCLUSION REACHED BY THE FOURTH CIRCUIT COURT OF APPEALS:  "IT IS
HARDLY POSSIBLE THAT CONGRESS SHOULD HAVE INTENDED TO PERMIT REVIEW BY
DISTRICT COURTS OF 9(C) PROCEEDINGS WHILE SO CAREFULLY LIMITING REVIEW
OF SUCH PROCEEDINGS IN THE CIRCUIT COURTS OF APPEALS TO CASES IN WHICH
AN ORDER UNDER 19(C) HAS BEEN ENTERED."  MADDEN V. BROTHERHOOD AND
UNION OF TR. EMPLOYEES, 147 F.2D 439, 442. 

I DARESAY THAT THE INGENUITY OF COUNSEL WILL, AFTER TODAY'S DECISION,
BE ENTIRELY ADEQUATE TO THE TASK OF FINDING SOME ALLEGED "UNLAWFUL
ACTION," WHETHER IN STATUTORY INTERPRETATION OR OTHERWISE, SUFFICIENT
TO GET A FOOT IN A DISTRICT COURT DOOR UNDER 28 U.S.C. SEC. 1337.  EVEN
WHEN THE BOARD WINS SUCH A CASE ON THE MERITS, AS IN INLAND EMPIRE
COUNCIL, WHILE THE CASE IS DRAGGING THROUGH THE COURTS THE THREAT WILL
BE EVER PRESENT OF THE INDUSTRIAL STRIFE SOUGHT TO BE AVERTED BY
CONGRESS IN PROVIDING ONLY DRASTICALLY LIMITED JUDICIAL REVIEW UNDER
SEC. 9(D).  BOTH UNION AND MANAGEMENT WILL BE ABLE TO USE THE TACTIC OF
LITIGATION TO DELAY THE INITIATION OF COLLECTIVE BARGAINING WHEN IT
SUITS THEIR PURPOSES.  A STRIKING EXAMPLE OF THIS WAS RECENTLY
DISCLOSED TO THE SELECT COMMITTEE OF THE SENATE ON IMPROPER ACTIVITIES
IN THE LABOR OR MANAGEMENT FIELD.  (FN15)  A UNION, BY CHALLENGING
BOARD CERTIFICATION PROCEEDINGS IN THE DISTRICT COURTS, (FN16) WAS ABLE
TO EXTEND A REPRESENTATION PROCEEDING TO OVER SIX MONTHS, EVEN THOUGH
ONLY SEVEN EMPLOYEES WERE INVOLVED AND THEY DID NOT SUPPORT THE UNION. 
BY THE TIME THAT THE BOARD WAS ABLE TO CERTIFY A REPRESENTATIVE OF THE
EMPLOYEES, THE INDUSTRIAL STRIFE OF THOSE SIX MONTHS HAD FORCED THE
EMPLOYER OUT OF BUSINESS.  THUS COLLECTIVE BARGAINING WAS PREVENTED,
THE BASIC PURPOSE OF THE LMRA WAS FRUSTRATED, AND THE RESULT WAS
SERIOUS HARDSHIP TO BOTH THE EMPLOYER AND EMPLOYEES.  I FEAR THAT TODAY
THE COURT FASHIONS A MAJOR SETBACK FOR THE GOALS OF THE NATIONAL LABOR
POLICY, AT LEAST UNTIL THE CONGRESS ENACTS NEW LANGUAGE TO EXPRESS A
WILL WHICH I THINK IS ALREADY CRYSTAL CLEAR. 

IT IS NO SUPPORT FOR THE COURT'S DECISION THAT THE RESPONDENT UNION
MAY SUFFER HARDSHIP IF REVIEW UNDER 28 U.S.C. SEC. 1337 IS NOT OPEN TO
IT.  THE CONGRESS WAS FULLY AWARE OF THE DISADVANTAGES AND POSSIBLE
UNFAIRNESS WHICH COULD RESULT FROM THE LIMITATION ON JUDICIAL REVIEW
ENACTED IN SEC. 9(D).  THE HOUSE PROPOSAL FOR DIRECT REVIEW OF BOARD
CERTIFICATIONS IN THE TAFT-HARTLEY AMENDMENTS WAS BASED IN PART UPON
THE FACT THAT, UNDER THE WAGNER ACT, THE OPERATION OF SEC. 9(D) WAS
"UNFAIR TO ...  THE UNION THAT LOSES, WHICH HAS NO APPEAL AT ALL NO
MATTER HOW WRONG THE CERTIFICATION MAY BE; AND TO THE EMPLOYEES, WHO
ALSO HAVE NO APPEAL  ...  ."  (FN17)  CONGRESS NEVERTHELESS CONTINUED
THE LIMITED JUDICIAL REVIEW PROVIDED BY SEC. 9(D) BECAUSE CONGRESS
BELIEVED THE DISADVANTAGES OF BROADER REVIEW TO BE MORE SERIOUS THAN
THE DIFFICULTIES WHICH LIMITED REVIEW POSED FOR THE PARTIES. 
FURTHERMORE, CONGRESS FELT THAT THE BOARD PROCEDURES AND THE LIMITED
REVIEW PROVIDED IN SEC. 9(D) WERE ADEQUATE TO PROTECT THE PARTIES. 
(FN18) 

THE COURT SUPPORTS ITS DECISION BY STATING THAT SWITCHMEN'S UNION V.
NATIONAL MEDIATION BOARD, SUPRA, "ANNOUNCED PRINCIPLES THAT ARE
CONTROLLING HERE."  THIS IS TRUE, BUT I BELIEVE THAT THOSE PRINCIPLES
LEAD TO, INDEED COMPEL, A RESULT CONTRARY TO THAT REACHED BY THE
COURT.  IN THAT CASE, THE SWITCHMEN'S UNION SOUGHT TO CHALLENGE IN A
DISTRICT COURT THE CERTIFICATION OF AN EMPLOYEE REPRESENTATIVE BY THE
NATIONAL MEDIATION BOARD UNDER THE RAILWAY LABOR ACT.  THE BOARD
CERTIFIED THE BROTHERHOOD OF RAILROAD TRAINMEN AS REPRESENTATIVE FOR
ALL THE YARDMEN OF THE RAIL LINES OPERATED BY THE NEW YORK CENTRAL
SYSTEM.  THE SWITCHMEN'S UNION CONTENDED THAT YARDMEN OF CERTAIN
DESIGNATED PARTS OF THE SYSTEM SHOULD BE PERMITTED TO VOTE FOR SEPARATE
REPRESENTATIVES INSTEAD OF BEING COMPELLED TO TAKE PART IN A SYSTEM
WIDE ELECTION.  THE BOARD REJECTED THIS CONTENTION OF THE SWITCHMEN'S
UNION UPON THE GROUND THAT THE RAILWAY LABOR ACT DID NOT AUTHORIZE THE
BOARD TO DETERMINE A UNIT OF LESS THAN THE ENTIRE SYSTEM.  THE BOARD'S
INTERPRETATION WAS THAT THE "RAILWAY LABOR ACT VESTS THE BOARD WITH NO
DISCRETION TO SPLIT A SINGLE CARRIER  ...  ."  SWITCHMEN'S CASE, 320
U.S., AT 309.  THIS COURT HELD THAT THE ACTION OF THE SWITCHMEN'S UNION
WAS NOT COGNIZABLE IN A DISTRICT COURT.  THE COURT HELD THAT THE
RAILWAY LABOR ACT, READ IN THE LIGHT OF ITS HISTORY, DISCLOSED A
CONGRESSIONAL INTENTION TO BAR DIRECT REVIEW IN THE DISTRICT COURTS OF
CERTIFICATIONS BY THE MEDIATION BOARD.  THIS WAS HELD NOTWITHSTANDING
THE FACT THAT THE CERTIFICATION WAS BASED ON AN ALLEGED
MISINTERPRETATION OF THE ACT. 

THIS SAME REASONING HAS STRIKING APPLICATION IN THIS CASE.  THE
NATIONAL LABOR RELATIONS ACT PROVIDES THAT THE LABOR BOARD "SHALL
DECIDE IN EACH CASE  ...  THE UNIT APPROPRIATE FOR THE PURPOSES OF
COLLECTIVE BARGAINING," SEC. 9(B), BUT ALSO PROVIDES THAT THE BOARD
"SHALL NOT  ...  DECIDE THAT ANY UNIT IS APPROPRIATE  ...  IF SUCH UNIT
INCLUDES BOTH PROFESSIONAL EMPLOYEES AND EMPLOYEES WHO ARE NOT
PROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF SUCH PROFESSIONAL EMPLOYEES
VOTE FOR INCLUSION IN SUCH UNIT  ...  ."  SEC. 9(B)(1).  THE BOARD, IN
MAKING THE CERTIFICATION IN DISPUTE, HAS INTERPRETED THESE PROVISIONS
AS REQUIRING THE APPROVAL OF THE PROFESSIONAL EMPLOYEES OF A MIXED
BARGAINING UNIT OF PROFESSIONALS AND NONPROFESSIONALS ONLY WHEN THE
PROFESSIONALS ARE A MINORITY IN THE UNIT, SINCE ONLY IN SUCH A CASE
WOULD THEY NEED THIS PROTECTION AGAINST THE IGNORING OF THEIR
PARTICULAR INTERESTS.  THIS INTERPRETATION IS THE BASIS OF RESPONDENT
UNION'S COMPLAINT IN ITS ACTION UNDER 28 U.S.C. SEC. 1337 IN THE
DISTRICT COURT.  BUT AN ALLEGED ERROR IN STATUTORY CONSTRUCTION WAS
ALSO THE BASIS OF THE DISTRICT COURT ACTION IN THE SWITCHMEN'S CASE. 
THUS THE TWO CASES ARE PERFECTLY PARALLEL.  AND JUST AS SURELY AS IN
THE CASE OF THE MEDIATION BOARD UNDER THE RAILWAY LABOR ACT, THE
CONGRESS HAS BARRED DISTRICT COURT REVIEW OF NATIONAL LABOR RELATIONS
BOARD CERTIFICATIONS UNDER THE LABOR MANAGEMENT RELATIONS ACT.  THE
HISTORY OF THE CONTROVERSY OVER DIRECT JUDICIAL REVIEW WHICH I HAVE
CANVASSED SHOWS WITH A CLARITY PERHAPS NOT EVEN AS TRUE OF THE
MEDIATION BOARD THAT THE NATIONAL LABOR RELATIONS BOARD WAS THE
"PRECISE MACHINERY," 320 U.S., AT 301, SELECTED BY CONGRESS FOR THE
PURPOSE OF DETERMINING A CERTIFICATION AND THAT "THERE WAS TO BE NO
DRAGGING OUT OF THE CONTROVERSY INTO OTHER TRIBUNALS OF LAW."  ID., AT
305.  CONGRESS EVIDENCED ITS WILL DEFINITELY AND EMPHATICALLY "BY THE
HIGHLY SELECTIVE MANNER IN WHICH CONGRESS  ... PROVIDED FOR JUDICIAL
REVIEW OF ADMINISTRATIVE ORDERS OR DETERMINATIONS UNDER THE ACT."  ID.,
AT 305.  REVIEW IS CONFINED TO REVIEW IN A COURT OF APPEALS IN THE
CIRCUMSTANCES SPECIFIED IN SEC. 9(D). 

THE COURT SEIZES UPON THE LANGUAGE IN SWITCHMEN'S, "IF THE ABSENCE OF
JURISDICTION OF THE FEDERAL COURTS MEANT A SACRIFICE OR OBLITERATION OF
A RIGHT WHICH CONGRESS HAD CREATED, THE INFERENCE WOULD BE STRONG THAT
CONGRESS INTENDED THE STATUTORY PROVISIONS GOVERNING THE GENERAL
JURISDICTION OF THOSE COURTS TO CONTROL."  320 U.S., AT 300.  BUT THE
HOLDING IN SWITCHMEN'S WAS THAT IN CREATING THE MEDIATION BOARD AND
VESTING THAT BOARD WITH POWER TO DECIDE CERTIFICATION CONTROVERSIES,
CONGRESS HAD PROVIDED ITS OWN TRIBUNAL FOR PROTECTION OF THE "RIGHT" IT
CREATED, THUS PRECLUDING ANY BASIS FOR AN INFERENCE THAT CONGRESS
INTENDED THE GENERAL JURISDICTION OF THE DISTRICT COURTS TO CONTROL. 
THE COURT FOUND THAT CONGRESS INTENDED PROTECTION OF THE "RIGHT" TO BE
CONFINED TO THE BOARD'S EXERCISE OF POWER CONFERRED FOR THE PURPOSE. 
THEREFORE, THE COURT HELD "REVIEW BY THE FEDERAL DISTRICT COURTS OF THE
BOARD'S DETERMINATION IS NOT NECESSARY TO PRESERVE OR PROTECT THAT
'RIGHT.'  CONGRESS FOR REASONS OF ITS OWN DECIDED UPON THE METHOD FOR
THE PROTECTION OF THE 'RIGHT' WHICH IT CREATED.  IT SELECTED THE
PRECISE MACHINERY AND FASHIONED THE TOOL WHICH IT DEEMED SUITED TO THAT
END  ...  .  ALL CONSTITUTIONAL QUESTIONS ASIDE, IT IS FOR CONGRESS TO
DETERMINE HOW THE RIGHTS WHICH IT CREATES SHALL BE ENFORCED."  320
U.S., AT 301.  THE COURT USED THE "SACRIFICE OR OBLITERATION" LANGUAGE
SOLELY TO DISTINGUISH THE SITUATION WHERE CONGRESS CREATED A "RIGHT"
BUT NO TRIBUNAL FOR ITS ENFORCEMENT.  THIS WAS THE CASE IN TEXAS & NEW
ORLEANS R. CO. V. BROTHERHOOD OF RAILWAY CLERKS, 281 U.S. 548, AND
VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515.  IN THE TEXAS
CASE, THE EMPLOYER WAS ATTEMPTING TO PREVENT THE ORGANIZATION OF ITS
EMPLOYEES IN VIOLATION OF SEC. 2 OF THE RAILWAY LABOR ACT, WHICH
PROVIDED THAT THE EMPLOYEES COULD SELECT REPRESENTATIVES "WITHOUT
INTERFERENCE, INFLUENCE, OR COERCION" BY THE EMPLOYER.  THERE WAS NO
AGENCY DESIGNATED TO ENFORCE THIS POLICY OF THE ACT, AND UNLESS THE
COURTS PROVIDED SANCTIONS AGAINST THE OUTLAWED ACTIVITY, THERE WOULD BE
NO OFFICIAL SANCTIONS TO PREVENT IT.  SIMILARLY IN THE VIRGINIAN R. CO.
CASE, A UNION ASKED THE COURT TO ORDER AN EMPLOYER TO OBEY THE COMMANDS
OF THE RAILWAY LABOR ACT BECAUSE WITHOUT SUCH RELIEF THE EMPLOYER WOULD
HAVE BEEN FREE TO IGNORE THE ACT, SINCE AT THAT TIME THE RAILWAY LABOR
ACT PROVIDED NO AGENCY FOR ENFORCEMENT OF THE RIGHT.  THUS WHEN THE
COURT IN SWITCHMEN'S TALKED ABOUT "THE ABSENCE OF JURISDICTION OF THE
FEDERAL COURTS" MEANING "A SACRIFICE OR OBLITERATION OF A RIGHT WHICH
CONGRESS HAD CREATED" IT REFERRED TO THE SITUATIONS IN THE TEXAS AND
VIRGINIAN R. CO. CASES.  SEE SWITCHMEN'S CASE, AT P. 300. 

BUT HERE, AS THE CONGRESS PROVIDED THE MEDIATION BOARD UNDER THE
RAILWAY LABOR ACT, THE CONGRESS HAS PROVIDED AN AGENCY, THE NLRB, TO
PROTECT THE "RIGHT" IT CREATED UNDER THE NATIONAL LABOR RELATIONS ACT. 
CONGRESS HAS IN ADDITION ENACTED "AN APPROPRIATE SAFEGUARD AND
OPPORTUNITY TO BE HEARD" (FN19) IN PROCEDURES TO BE FOLLOWED BY THE
BOARD.  IT HAS INDEED GONE FURTHER THAN IN THE RAILWAY LABOR ACT. 
WHEREAS NO JUDICIAL REVIEW OF ANY KIND WAS THERE PROVIDED, SOME,
ALTHOUGH LIMITED, JUDICIAL REVIEW IS PROVIDED UNDER SEC. 9(D).  THIS
WAS CONSIDERED BY CONGRESS AS "A COMPLETE GUARANTEE AGAINST ARBITRARY
ACTION BY THE BOARD."  (FN20)  PLAINLY WE HAVE HERE A SITUATION WHERE
IT MAY BE SAID PRECISELY AS IN SWITCHMEN'S THAT "CONGRESS FOR REASONS
OF ITS OWN DECIDED UPON THE METHOD FOR PROTECTION OF THE 'RIGHT' IT
CREATED.  IT SELECTED THE PRECISE MACHINERY AND FASHIONED THE TOOL
WHICH IT DEEMED SUITED TO THAT END." 

CASES SUCH AS HARMON V. BRUCKER, 355 U.S. 579, AND STARK V. WICKARD,
321 U.S. 288, CITED BY THE COURT, MERELY INDICATE THAT CONGRESIONALLY
CREATED RIGHTS MAY BE JUDICIALLY ENFORCED UNLESS THE ACT THAT CREATES
THE RIGHTS INDICATES THE CONTRARY.  EACH CASE MUST TURN ON AN
INTERPRETATION OF THE STATUTE THAT CREATES THE RIGHT.  AS THIS COURT
SAID IN STARK V. WICKARD ITSELF:  "EVEN WHERE A COMPLAINANT POSSESSES A
CLAIM TO EXECUTIVE ACTION BENEFICIAL TO HIM, CREATED BY FEDERAL
STATUTE, IT DOES NOT NECESSARILY FOLLOW THAT ACTIONS OF ADMINISTRATIVE
OFFICIALS, DEEMED BY THE OWNER OF THE RIGHT TO PLACE UNLAWFUL
RESTRICTIONS UPON HIS CLAIM, ARE COGNIZABLE IN APPROPRIATE FEDERAL
COURTS OF FIRST INSTANCE."  321 U.S., AT 306.  THE STATUTES UNDER
CONSIDERATION IN THOSE CASES DO NOT HAVE THE COMMON PURPOSES AND SCHEME
OF THE NATIONAL LABOR RELATIONS ACT AND RAILWAY LABOR ACT. 
FURTHERMORE, THE GENERAL STATUTORY SCHEME AND THE LEGISLATIVE HISTORY
OF THOSE STATUTES SIMPLY DID NOT DEMONSTRATE THE INTENT TO LIMIT THE
JUDICIAL ENFORCEMENT OF THE RIGHTS CREATED, SO COMPELLINGLY
DEMONSTRATED IN THIS CASE, AND IN SWITCHMEN'S UNION V. NATIONAL
MEDIATION BOARD. 

I WOULD REVERSE AND REMAND THE CASE TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS THE COMPLAINT FOR LACK OF JURISDICTION OF THE
SUBJECT MATTER. 

FN1  49 STAT. 449. 

FN2  61 STAT. 136. 

FN3  THE FIRST NATIONAL LABOR RELATIONS BOARD WAS CREATED BY PUBLIC
RESOLUTION 44 OF JUNE 19, 1934, 48 STAT. 1183, TO ADMINISTER SEC. 7(A)
OF THE NATIONAL INDUSTRIAL RECOVERY ACT, 48 STAT. 198. 

FN4  H.R. REP. NO. 1147, 74TH CONG., 1ST SESS., P. 7. 

FN5  SEE H.R. REP. NO. 1147, SUPRA, P. 23. 

FN6  S. REP. NO. 573, 74TH CONG., 1ST SESS., P. 6. 

FN7  79 CONG. REC. 7658. 

FN8  SEE HEARINGS BEFORE SENATE COMMITTEE ON EDUCATION AND LABOR ON
S. 1000 ET AL., 76TH CONG., 1ST SESS., PP. 584-587. 

FN9  H.R. REP. NO. 245, 80TH CONG., 1ST SESS., P. 43. 

FN10  H.R. 3020, 80TH CONG., 1ST SESS., SEC. 10(F); SEE H.R. REP. NO.
245, SUPRA, PP. 59-60. 

FN11  H.R. REP. NO. 245, SUPRA, P. 94 (MINORITY REPORT).  IT WAS
CONSERVATIVELY ESTIMATED THAT ONE YEAR WOULD BE THE AVERAGE TIME
REQUIRED FOR JUDICIAL REVIEW OF A BOARD CERTIFICATION.  IBID. 

FN12  SEE, E.G., H.R. REP. NO. 245, SUPRA, P. 43. 

FN13  SEE H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., PP. 56-57. 

FN14  93 CONG. REC. 6444. 

FN15  SEE TESTIMONY OF BOYD LEEDOM, CHAIRMAN OF THE NATIONAL LABOR
RELATIONS BOARD, BEFORE THE SELECT COMMITTEE OF THE SENATE ON IMPROPER
ACTIVITIES IN THE LABOR OR MANAGEMENT FIELD, NOVEMBER 20, 1958. 

FN16  IN THIS GENERAL CONNECTION, THE CHAIRMAN OF THE NLRB TESTIFIED:
"WE ARE EXPERIENCING NOW, I THINK, MORE THAN ANY TIME WITHIN MY
EXPERIENCE  ...  A TENDENCY OF THE UNITED STATES DISTRICT COURTS TO
MOVE INTO THE AREA WHERE WE THINK WE HAVE EXCLUSIVE JURISDICTION, SO
THAT IN RECENT MONTHS WE HAVE HAD SEVERAL DISTRICT COURTS INTERFERING
WITH OUR ELECTION PROCESSES." 

FN17  H.R. REP. NO. 245, SUPRA, P. 43. 

FN18  SEE NOTES 19, 20, INFRA. 

FN19  H.R. REP. NO. 1147, SUPRA, P. 23. 

FN20  S. REP. NO. 573, SUPRA, P. 14. 
..END :
























EVERS V. DWYER 358 U.S. 202 


NO. 382.  DECIDED DECEMBER 15, 1958 - REVERSED AND CASE REMANDED FOR
FURTHER PROCEEDINGS. 


A NEGRO RESIDENT OF MEMPHIS, TENN., BROUGHT THIS CLASS ACTION IN A
FEDERAL DISTRICT COURT AGAINST OFFICIALS OF THE CITY OF MEMPHIS, THE
LOCAL STREET RAILWAY COMPANY, AND ONE OF THAT COMPANY'S EMPLOYEES,
SEEKING A DECLARATORY JUDGMENT AS TO HIS CLAIMED CONSTITUTIONAL RIGHT,
AND THAT OF OTHERS SIMILARLY SITUATED, TO TRAVEL ON BUSES WITHIN THE
CITY WITHOUT BEING SUBJECTED, AS REQUIRED BY A TENNESSEE STATUTE, TO
SEGREGATED SEATING ARRANGEMENTS ON ACCOUNT OF RACE.  THE DISTRICT COURT
DISMISSED THE COMPLAINT ON THE GROUND THAT NO "ACTUAL CONTROVERSY,"
WITHIN THE MEANING OF THE DECLARATORY JUDGMENT ACT, HAD BEEN SHOWN,
BECAUSE APPELLANT HAD RIDDEN A BUS IN MEMPHIS ON ONLY ONE OCCASION, HAD
DONE SO FOR THE PURPOSE OF INSTITUTING THIS LITIGATION, AND WAS NOT
"REPRESENTATIVE OF CLASS OF COLORED CITIZENS WHO DO USE THE BUSES IN
MEMPHIS AS A MEANS OF TRANSPORATION."  HELD:  THE RECORD IN THIS CASE
ESTABLISHES THE EXISTENCE OF AN ACTUAL CONTROVERSY WHICH SHOULD HAVE
BEEN ADJUDICATED BY THE DISTRICT COURT.  PP. 202-204. 

EVERS ET AL. V. DWYER ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TENNESSEE. 

PER CURIAM. 

APPELLANT, A NEGRO RESIDENT OF MEMPHIS, TENNESSEE, BROUGHT THIS CLASS
ACTION IN THE WESTERN DIVISION OF THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TENNESSEE, SEEKING A DECLARATION AS TO HIS
CLAIMED CONSTITUTIONAL RIGHT, AND THAT OF OTHERS SIMILARLY SITUATED, TO
TRAVEL ON BUSES WITHIN THAT CITY WITHOUT BEING SUBJECTED, AS REQUIRED
BY TENN. CODE ANN., 1955, SECS. 65-1704 THROUGH 65-1709, TO SEGREGATED
SEATING ARRANGEMENTS ON ACCOUNT OF RACE.  AN INJUNCTION AGAINST
ENFORCEMENT OF THIS STATUTE OR ANY OTHER METHOD OF STATE-ENFORCED
SEGREGATION ON MEMPHIS TRANSPORTATION FACILITIES WAS ALSO SOUGHT. 
VARIOUS OFFICIALS AND OFFICERS OF THE CITY OF MEMPHIS, THE MEMPHIS
STREET RAILWAY COMPANY, AND ONE OF THAT COMPANY'S EMPLOYEES WERE NAMED
AS DEFENDANTS.  AFTER A HEARING A THREE-JUDGE DISTRICT COURT, WITHOUT
REACHING THE MERITS, DISMISSED THE COMPLAINT ON THE GROUND THAT NO
"ACTUAL CONTROVERSY" WITHIN THE INTENDMENT OF THE DECLARATORY JUDGMENT
ACT, 28 U.S.C.  SEC. 2201, HAD BEEN SHOWN, IN THAT APPELLANT HAD RIDDEN
A BUS IN MEMPHIS ON ONLY ONE OCCASION AND HAD "BOARDED THE BUS FOR THE
PURPOSE OF INSTITUTING THIS LITIGATION," AND WAS THUS NOT
"REPRESENTATIVE OF A CLASS OF COLORED CITIZENS WHO DO USE THE BUSES IN
MEMPHIS AS A MEANS OF TRANSPORTATION." 

OF COURSE, THE FEDERAL COURTS WILL NOT GRANT DECLARATORY RELIEF IN
INSTANCES WHERE THE RECORD DOES NOT DISCLOSE AN "ACTUAL CONTROVERSY." 
PUBLIC SERVICE COMM'N V. WYCOFF CO., 344 U.S. 237.  IN MARYLAND
CASUALTY CO. V. PACIFIC COAL & OIL CO., 312 U.S. 270, 273, THIS COURT
SAID:  "THE DIFFERENCE BETWEEN AN ABSTRACT QUESTION AND A 'CONTROVERSY'
CONTEMPLATED BY THE DECLARATORY JUDGMENT ACT IS NECESSARILY ONE OF
DEGREE, AND IT WOULD BE DIFFICULT, IF IT WOULD BE POSSIBLE, TO FASHION
A PRECISE TEST FOR DETERMINING IN EVERY CASE WHETHER THERE IS SUCH A
CONTROVERSY.  BASICALLY, THE QUESTION IN EACH CASE IS WHETHER THE FACTS
ALLEGED, UNDER ALL THE CIRCUMSTANCES, SHOW THAT THERE IS A SUBSTANTIAL
CONTROVERSY, BETWEEN PARTIES HAVING ADVERSE LEGAL INTERESTS, OF
SUFFICIENT IMMEDIACY AND REALITY TO WARRANT THE ISSUANCE OF A
DECLARATORY JUDGMENT."  IN THE PRESENT CASE WE THINK THAT THE RECORD
ESTABLISHES THE EXISTENCE OF AN ACTUAL CONTROVERSY WHICH SHOULD HAVE
BEEN ADJUDICATED BY THE LOWER COURT. 

THE DISTRICT COURT FOUND THAT WHEN APPELLANT BOARDED A MEMPHIS BUS ON
APRIL 26, 1956, AND SEATED HIMSELF AT THE FRONT OF THE VEHICLE, THE
DRIVER TOLD HIM HE MUST MOVE TO THE REAR, "STATING THAT THE LAW
REQUIRED IT BECAUSE OF HIS COLOR"; THAT FOLLOWING APPELLANT'S REFUSAL
TO COMPLY, TWO POLICE OFFICERS SHORTLY THEREAFTER BOARDED THE BUS AND
"ORDERED APPELLANT TO GO TO THE BACK OF THE BUS, GET OFF, OR BE
ARRESTED"; AND THAT THEREUPON APPELLANT LEFT THE BUS.  THE RECORD
FURTHER SHOWS THAT THE APPELLEES INTEND TO ENFORCE THIS STATE STATUTE
UNTIL ITS UNCONSTITUTIONALITY HAS BEEN FINALLY ADJUDICATED.  WE DO NOT
BELIEVE THAT APPELLANT, IN ORDER TO DEMONSTRATE THE EXISTENCE OF AN
"ACTUAL CONTROVERSY" OVER THE VALIDITY OF THE STATUTE HERE CHALLENGED,
WAS BOUND TO CONTINUE TO RIDE THE MEMPHIS BUSES AT THE RISK OF ARREST
IF HE REFUSED TO SEAT HIMSELF IN THE SPACE IN SUCH VEHICLES ASSIGNED TO
COLORED PASSENGERS.  A RESIDENT OF A MUNICIPALITY WHO CANNOT USE
TRANSPORTATION FACILITIES THEREIN WITHOUT BEING SUBJECTED BY STATUTE TO
SPECIAL DISABILITIES NECESSARILY HAS, WE THINK, A SUBSTANTIAL,
IMMEDIATE, AND REAL INTEREST IN THE VALIDITY OF THE STATUTE WHICH
IMPOSES THE DISABILITY.  SEE GAYLE V. BROWDER, 352 U.S. 903, AFFIRMING
THE DECISION OF A THREE-JUDGE DISTRICT COURT REPORTED AT 142 F. SUPP.
707.  THAT THE APPELLANT MAY HAVE BOARDED THIS PARTICULAR BUS FOR THE
PURPOSE OF INSTITUTING THIS LITIGATION IS NOT SIGNIFICANT.  SEE YOUNG
V. HIGBEE CO., 324 U.S. 204, 214; DOREMUS V. BOARD OF EDUCATION, 342
U.S. 429, 434-435. 

WE HOLD THAT THE COURT BELOW ERRED IN NOT PROCEEDING TO THE MERITS. 
ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
IT IS SO ORDERED. 
..END :



BRIGGS, DBA WALT'S AUTO PARKS & GARAGES V. CITY OF LOS ANGELES 358 U.S.
205 


NO. 453.  DECIDED DECEMBER 15, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  154 CAL. APP. 2D 642,
316 P.2D 408. 


BRIGGS, DOING BUSINESS AS WALT'S AUTO PARKS & GARAGES, V. CITY OF LOS
ANGELES ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :










JAMES V. TODD 358 U.S. 206 


NO. 464.  DECIDED DECEMBER 15, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  267 ALA. 495, 103 SO.
2D 19. 


JAMES ET AL. V. TODD, COMMISSIONER OF AGRICULTURE AND INDUSTRIES OF
ALABAMA. 

APPEAL FROM THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :












UNITED GAS PIPE LINE CO. V. MEMPHIS LIGHT, GAS AND WATER DIVISION 358
U.S. 103 


NO. 23.  ARGUED OCTOBER 20-21, 1958 - DECIDED DECEMBER 8, 1958* - 102
U.S. APP. D.C. 77, 250 F.2D 402, REVERSED. 

*TOGETHER WITH NO. 25, FEDERAL POWER COMMISSION V. MEMPHIS LIGHT, GAS
AND WATER DIVISION ET AL., AND NO. 26, TEXAS GAS TRANSMISSION CORP. ET
AL. V. MEMPHIS LIGHT, GAS AND WATER DIVISION ET AL., ALSO ON CERTIORARI
TO THE SAME COURT. 


A NATURAL GAS PIPELINE COMPANY REGULATED UNDER THE NATURAL GAS ACT
SUPPLIES GAS TO A NUMBER OF DISTRIBUTING COMPANIES UNDER LONG-TERM
SERVICE AGREEMENTS FILED WITH THE FEDERAL POWER COMMISSION WHICH WERE
CONSTRUED BY THE COMMISSION AS OBLIGATING THE PURCHASERS TO PAY FOR THE
GAS DURING THE TERMS OF THE AGREEMENTS NOT AT A SINGLE SPECIFIED RATE
BUT AT THE PIPELINE COMPANY'S "GOING" RATES AS ESTABLISHED FROM TIME TO
TIME IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED BY THE ACT.  HELD:
UNDER AGREEMENTS SO PROVIDING, NOTHING IN THE NATURAL GAS ACT PREVENTS
THE PIPELINE COMPANY, WITHOUT FURTHER AGREEMENT WITH THE PURCHASERS,
FROM CHANGING ITS RATES BY FILING NEW SCHEDULES UNDER SEC. 4(D) OF THE
ACT, SUBJECT TO REVIEW BY THE COMMISSION UNDER SEC. 4(E).  PP. 104
116. 

(A)  UNITED GAS PIPE LINE CO. V. MOBILE GAS SERVICE CORP., 350 U.S.
332, DISTINGUISHED.  PP. 109-111. 

(B)  THE PROCEDURES PRESCRIBED BY SEC. 4(D) AND SEC. 4(E) ARE NOT
LIMITED TO INSTANCES WHERE THE PARTIES HAVE MUTUALLY AGREED UPON
SPECIFIC NEW RATES.  PP. 111-114. 

(C)  THE COMMISSION CORRECTLY DETERMINED THE MEANING OF THE SERVICE
AGREEMENTS HERE INVOLVED.  PP. 114-115. 

(D)  NOTHING IN THE AGREEMENTS HERE INVOLVED, AS INTERPRETED TO
PERMIT THE PIPELINE COMPANY TO CHANGE ITS RATES UNDER SEC. 4(D) AND
SEC. 4(E) PROCEDURES, IS HOSTILE TO ANY OF THE PROVISIONS OR PURPOSES
OF THE ACT.  P. 115. 

UNITED STATES GAS PIPE LINE CO. V. MEMPHIS LIGHT, GAS AND WATER DIVISION
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WE REVIEW A JUDGMENT OF THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT WHICH DIRECTED THE FEDERAL POWER COMMISSION TO REJECT
CERTAIN RATE SCHEDULES FOR NATURAL GAS FILED WITH IT BY PETITIONER
UNITED GAS PIPE LINE COMPANY (UNITED) UNDER SEC. 4(D) OF THE NATURAL
GAS ACT OF 1938, 52 STAT. 821, AS AMENDED, 15 U.S.C. SEC. 717 ET SEQ. 

UNITED, A REGULATED NATURAL GAS PIPELINE COMPANY, SUPPLIES GAS TO
TEXAS GAS TRANSMISSION CORPORATION (TEXAS GAS), SOUTHERN NATURAL GAS
COMPANY (SOUTHERN GAS), AND MISSISSIPPI VALLEY GAS COMPANY
(MISSISSIPPI), (FN1) UNDER A NUMBER OF LONG-TERM SERVICE AGREEMENTS
MADE AND FILED WITH THE COMMISSION PRIOR TO SEPTEMBER 30, 1955, EACH OF
WHICH CONTAINS THE FOLLOWING PRICING PROVISION: (FN2) 

"ALL GAS DELIVERED HEREUNDER SHALL BE PAID FOR BY BUYER UNDER
SELLER'S RATE SCHEDULE (THE APPROPRIATE RATE SCHEDULE DESIGNATION IS
INSERTED HERE), OR ANY EFFECTIVE SUPERSEDING RATE SCHEDULES, ON FILE
WITH THE FEDERAL POWER COMMISSION.  THIS AGREEMENT IN ALL RESPECTS
SHALL BE SUBJECT TO THE APPLICABLE PROVISIONS OF SUCH RATE SCHEDULES
AND TO THE GENERAL TERMS AND CONDITIONS ATTACHED THERETO AND FILED WITH
THE FEDERAL POWER COMMISSION WHICH ARE BY REFERENCE MADE A PART
HEREOF." 

ON SEPTEMBER 30, 1955, UNITED, PROCEEDING UNDER SEC. 4(D) OF THE
NATURAL GAS ACT, FILED WITH THE COMMISSION NEW RATE SCHEDULES, TOGETHER
WITH SUPPORTING DATA, INCREASING ITS PRICES FOR GAS AS OF NOVEMBER 1,
1955, BY AMOUNTS ESTIMATED TO YIELD TOTAL ADDITIONAL ANNUAL REVENUES OF
$9,978,000 FROM SALES UNDER THE AGREEMENTS HERE INVOLVED AND FROM OTHER
SALES ALSO SUBJECT TO THE COMMISSION'S JURISDICTION.  EXERCISING ITS
POWERS UNDER SEC. 4(E) OF THE ACT, THE COMMISSION ORDERED A HEARING AS
TO THE PROPRIETY OF THE NEW RATES, AND, EXCEPT AS TO THOSE RELATING TO
SALES OF GAS FOR RESALE FOR INDUSTRIAL USE ONLY, SUSPENDED THEIR
EFFECTIVENESS FROM NOVEMBER 1, 1955, TO APRIL 1, 1956, THE MAXIMUM
PERIOD OF SUSPENSION AUTHORIZED BY THE STATUTE.  (FN3)  THEREAFTER
TEXAS GAS, SOUTHERN GAS, MISSISSIPPI, MEMPHIS, AND OTHERS CLAIMING AN
INTEREST IN THE PROCEEDINGS WERE PERMITTED TO INTERVENE, AND ON
FEBRUARY 6, 1956, THE COMMISSION COMMENCED THE TAKING OF EVIDENCE AS TO
THE LAWFULNESS OF UNITED'S NEW RATES UNDER THE "JUST AND REASONABLE"
STANDARD OF SEC. 4(E). 

ON FEBRUARY 27, 1956, THIS COURT ANNOUNCED ITS DECISION IN UNITED GAS
PIPE LINE CO. V. MOBILE GAS SERVICE CORP., 350 U.S. 332, IN WHICH IT
WAS HELD THAT UNITED COULD NOT ESCAPE A CONTRACT OBLIGATION TO FURNISH
MOBILE WITH NATURAL GAS AT A SINGLE SPECIFIED PRICE FOR A TERM OF YEARS
BY UNILATERALLY FILING AN INCREASED RATE SCHEDULE UNDER SEC. 4(D) OF
THE NATURAL GAS ACT.  FOLLOWING THAT DECISION THE RESPONDENTS IN THE
PRESENT CASE FOR THE FIRST TIME MOVED THE COMMISSION TO REJECT UNITED'S
NEW RATE SCHEDULES, CLAIMING THAT THEIR FILING CONSTITUTED AN ATTEMPT
ON THE PART OF UNITED TO CHANGE UNILATERALLY THE TERMS OF ITS SERVICE
AGREEMENTS WITH TEXAS GAS, SOUTHERN, AND MISSISSIPPI, AND THAT SUCH AN
ATTEMPT RAN AFOUL OF OUR DECISION IN MOBILE.  CONSTRUING THESE
AGREEMENTS AS IN EFFECT CONSTITUTING UNDERTAKINGS BY THE PURCHASERS TO
PAY UNITED'S "GOING" RATES, AS ESTABLISHED FROM TIME TO TIME IN
ACCORDANCE WITH THE PROCEDURES PRESCRIBED BY THE NATURAL GAS ACT, THE
COMMISSION REFUSED TO REJECT UNITED'S FILINGS.  IT DISTINGUISHED MOBILE
ON THE GROUND THAT THE CONTRACT THERE INVOLVED SPECIFIED A SINGLE FIXED
RATE FOR THE GAS TO BE SUPPLIED UNDER IT WHICH UNITED WAS CONTRACTUALLY
FORECLOSED FROM CHANGING WITHOUT THE AGREEMENT OF THE PURCHASER.  16
F.P.C. 19, 15 P.U.R. 3D 279. 

THE COURT OF APPEALS REVERSED.  ACCEPTING FOR THE PURPOSES OF ITS
DECISION THE COMMISSION'S INTERPRETATION OF UNITED'S SERVICE
AGREEMENTS, THE COURT OF APPEALS HELD THAT NONETHELESS THE COMMISSION
LACKED "JURISDICTION" TO CONSIDER UNDER SEC. 4(E) THE LAWFULNESS OF
UNITED'S NEW RATE SCHEDULES.  THE COURT REGARDED MOBILE AS ESTABLISHING
THAT SEC. 4(E) APPLIES ONLY TO RATE CHANGES WHOSE SPECIFIC AMOUNT HAS
BEEN MUTUALLY AGREED UPON BETWEEN A SELLER AND PURCHASER, AND THAT
WHERE A PURCHASER HAS NOT SO AGREED, A RATE CHANGE CAN BE EFFECTED ONLY
BY ACTION OF THE COMMISSION UNDER SEC. 5(A) OF THE ACT.  (FN4)  SINCE
THE RATES SET FORTH IN UNITED'S NEW SCHEDULES HAD NOT BEEN AGREED TO BY
ITS CUSTOMERS, THE COURT OF APPEALS THEREFORE HELD THAT THE COMMISSION
HAD NO JURISDICTION TO PROCEED UNDER SEC. 4(E) TO EXAMINE THEM, AND
THAT ACCORDINGLY UNITED'S FILINGS UNDER SEC. 4(D) SHOULD HAVE BEEN
REJECTED.  102 U.S. APP. D.C. 77, 250 F.2D 402.  WE GRANTED CERTIORARI
BECAUSE OF THE CLAIM THAT THE COURT OF APPEALS MISINTERPRETED OUR
DECISION IN MOBILE, AND ON THE SUGGESTION THAT ITS JUDGMENT SERIOUSLY
FRUSTRATES THE PROPER ADMINISTRATION OF THE NATURAL GAS ACT.  355 U.S.
938. 

IT IS APPARENT THAT THE COURT OF APPEALS MISCONCEIVED THE IMPORT OF
OUR DECISION IN MOBILE.  THE CONTRACT BEFORE THE COURT IN THAT CASE
REQUIRED UNITED TO FURNISH NATURAL GAS TO MOBILE AT A SINGLE FIXED
PRICE OF 10.7 CENTS PER MCF (THOUSAND CUBIC FEET) FOR A PERIOD OF 10
YEARS.  THE CONTRACT CONTAINED NO PROVISION FOR ANY DIFFERENT RATE, OR
FOR CHANGING THE AGREED RATE DURING THE TERM OF THE AGREEMENT.  IT WAS
ARGUED BY UNITED THAT THE NATURAL GAS ACT GAVE IT THE RIGHT TO ABROGATE
THIS UNQUALIFIED CONTRACT OBLIGATION AND INCREASE AT WILL ITS PRICE OF
GAS TO MOBILE BY FILING NEW RATE SCHEDULES UNDER SEC. 4(D), SUBJECT
ONLY TO THE COMMISSION'S APPROVAL OF SUCH SCHEDULES UNDER SEC. 4(E). 
IN REJECTING THAT CONTENTION THIS COURT HELD THAT THE NATURAL GAS ACT,
UNLIKE THE INTERSTATE COMMERCE ACT, "EVINCES NO PURPOSE TO ABROGATE
PRIVATE RATE CONTRACTS AS SUCH," THAT THE ACT DID NOT "EMPOWER NATURAL
GAS COMPANIES TO CHANGE THEIR CONTRACTS UNILATERALLY," AND THAT IN THIS
RESPECT REGULATED NATURAL GAS COMPANIES STOOD IN NO DIFFERENT POSITION
UNDER THE ACT THAN THEY WOULD HAVE IN THE ABSENCE OF THE ACT.  350
U.S., AT 338, 340, 343.  SINCE UNITED HAD CONTRACTUALLY BOUND ITSELF TO
FURNISH GAS TO MOBILE THROUGHOUT THE CONTRACT TERM AT A PARTICULAR
PRICE, WE HELD THAT ITS OBLIGATION COULD BE ABROGATED ONLY BY THE
COMMISSION, IN THE EXERCISE OF ITS PARAMOUNT REGULATORY AUTHORITY UNDER
SEC. 5(A).  IBID., AT 344-345. 

THE UNITED CONTRACT NOW BEFORE US, AS CONSTRUED BY THE FEDERAL POWER
COMMISSION AND AS VIEWED BY THE COURT OF APPEALS FOR THE PURPOSES OF
DECISION, IS VITALLY DIFFERENT FROM THAT IN MOBILE.  ON THIS VIEW OF
THE CONTRACT UNITED BOUND ITSELF TO FURNISH GAS TO THESE CUSTOMERS
DURING THE LIFE OF THE AGREEMENTS NOT AT A SINGLE FIXED RATE, AS IN
MOBILE, BUT AT WHAT IN EFFECT AMOUNTED TO ITS CURRENT "GOING" RATE. 
CONTRACTUALLY THIS LEFT UNITED FREE TO CHANGE ITS RATES FROM TIME TO
TIME, SUBJECT, OF COURSE, TO THE PROCEDURES AND LIMITATIONS OF THE
NATURAL GAS ACT.  IN SUCH CIRCUMSTANCES THERE IS NOTHING IN MOBILE
WHICH SUGGESTS THAT UNITED WAS NOT ENTITLED TO FILE ITS NEW SCHEDULES
UNDER SEC. 4(D), OR THAT THE COMMISSION HAD NO JURISDICTION TO CONSIDER
THEM UNDER SEC. 4(E).  ON THE CONTRARY WE SAID IN MOBILE (350 U.S., AT
343): 

"  ...  EXCEPT AS SPECIFICALLY LIMITED BY THE ACT, THE RATE-MAKING
POWERS OF NATURAL GAS COMPANIES WERE TO BE NO DIFFERENT FROM THOSE THEY
WOULD POSSESS IN THE ABSENCE OF THE ACT:  TO ESTABLISH EX PARTE, AND
CHANGE AT WILL, THE RATES OFFERED TO PROSPECTIVE CUSTOMERS; OR TO FIX
BY CONTRACT, AND CHANGE ONLY BY MUTUAL AGREEMENT, THE RATE AGREED UPON
WITH A PARTICULAR CUSTOMER.  NO MORE IS NECESSARY TO GIVE FULL MEANING
TO ALL THE PROVISIONS OF THE ACT:  CONSISTENT WITH THIS, SEC. 4(D)
MEANS SIMPLY THAT NO CHANGE - NEITHER A UNILATERAL CHANGE TO AN EX
PARTE RATE NOR AN AGREED-UPON CHANGE TO A CONTRACT - CAN BE MADE BY A
NATURAL GAS COMPANY WITHOUT THE PROPER NOTICE TO THE COMMISSION  ...
." 

THE COURT OF APPEALS THEREFORE ERRED IN READING MOBILE AS LIMITING
THE PROCEDURES PRESCRIBED BY SEC. 4(D) AND (E) TO INSTANCES WHERE THE
PARTIES BY MUTUAL AGREEMENT HAD "REFORMED" A RATE CONTRACT.   THE
REASON THESE PROCEDURES WERE UNAVAILABLE TO UNITED IN MOBILE WAS
BECAUSE THE COMPANY HAD BARGAINED AWAY BY CONTRACT THE RIGHT TO CHANGE
ITS RATES UNILATERALLY, AND NOT BECAUSE SEC. 4 DOES NOT APPLY TO SUCH
RATE CHANGES WHETHER MADE PURSUANT TO OR IN THE ABSENCE OF A CONTRACT. 

MOREOVER, WE FIND NOTHING IN THE SCHEME OF THE NATURAL GAS ACT WHICH
WOULD JUSTIFY THE RESTRICTIVE APPLICATION WHICH THE COURT OF APPEALS'
DECISION GIVES TO SEC. 4(D) AND (E).  SECTION 4(C) REQUIRES EVERY
NATURAL GAS COMPANY INITIALLY TO FILE WITH THE COMMISSION ITS RATES FOR
ANY "SALE SUBJECT TO THE JURISDICTION OF THE COMMISSION,  ...  TOGETHER
WITH ALL CONTRACTS WHICH IN ANY MANNER AFFECT OR RELATE TO SUCH RATES
...  ."  SECTION 4(D) PROVIDES FOR THE GIVING OF NOTICE OF ANY CHANGE
"IN ANY SUCH RATE  ...  OR CONTRACT RELATING THERETO  ...  " BY FILING
NEW RATE SCHEDULES WITH THE COMMISSION AND KEEPING THEM OPEN FOR PUBLIC
INSPECTION.  (FN5)  AND SEC. 4(E) AUTHORIZES COMMISSION REVIEW OF THE
LAWFULNESS OF ANY SUCH CHANGED RATE.  (FN6)  THE RECORD BEFORE US
AFFIRMATIVELY SHOWS THAT UNITED IN THE FILINGS HERE AT ISSUE HAS
COMPLIED WITH ALL THE DUTIES WHICH THESE SECTIONS IN TERMS IMPOSE UPON
IT, AND THERE IS NOTHING IN THESE SECTIONS WHICH EVEN REMOTELY IMPLIES
THAT SEC. 4(D) AND (E) PROCEDURES ARE APPLICABLE TO THE FILING AND
REVIEW OF ONLY THOSE RATE CHANGES WHOSE AMOUNT HAS BEEN AGREED UPON BY
THE SELLER AND BUYER.  (FN7) 

THE IMPORTANT AND INDEED DECISIVE DIFFERENCE BETWEEN THIS CASE AND
MOBILE IS THAT IN MOBILE ONE PART TO A CONTRACT WAS ASSERTING THAT THE
NATURAL GAS ACT SOMEHOW GAVE IT THE RIGHT UNILATERALLY TO ABROGATE ITS
CONTRACTUAL UNDERTAKING, WHEREAS HERE PETITIONER SEEKS SIMPLY TO
ASSERT, IN ACCORDANCE WITH THE PROCEDURES SPECIFIED BY THE ACT, RIGHTS
EXPRESSLY RESERVED TO IT BY CONTRACT.  MOBILE MAKES IT PLAIN THAT
"SEC.  4(D) ON ITS FACE INDICATES NO MORE THAN THAT OTHERWISE VALID
CHANGES CANNOT BE PUT INTO EFFECT WITHOUT GIVING THE REQUIRED NOTICE TO
THE COMMISSION."  350 U.S., AT 339-340.  THE NECESSARY COROLLARY OF
THIS PROPOSITION IS THAT CHANGES WHICH IN FACT ARE "OTHERWISE VALID" IN
THE LIGHT OF THE REALTIONSHIP BETWEEN THE PARTIES CAN BE PUT INTO
EFFECT UNDER SEC. 4(D) BY A SELLER THROUGH GIVING THE REQUIRED NOTICE
TO THE COMMISSION.  MOBILE EXPRESSLY NOTES THAT IN THE ABSENCE OF ANY
CONTRACTUAL RELATIONSHIP RATES DETERMINED EX PARTE BY THE SELLER MAY BE
FILED UNDER SEC. 4(D).  350 U.S., AT 343.  WE PERCEIVE NO TENABLE BASIS
OF DISTINCTION BETWEEN THE FILING OF SUCH A RATE IN THE ABSENCE OF
CONTRACT AND A SIMILAR FILING UNDER AN AGREEMENT WHICH EXPLICITLY
PERMITS IT. 

THUS MOBILE, PROPERLY UNDERSTOOD, AFFIRMATIVELY ESTABLISHES UNITED'S
RIGHT TO PROCEED UNDER SEC. 4 IN THE CIRCUMSTANCES OF THIS CASE.  AS WE
THERE SAID, "THE INITIAL RATE-MAKING AND RATE-CHANGING POWERS OF
NATURAL GAS COMPANIES REMAIN UNDEFINED AND UNAFFECTED BY THE ACT."  350
U.S., AT 343.  UNITED, LIKE THE SELLER OF AN UNREGULATED COMMODITY, HAS
THE RIGHT IN THE FIRST INSTANCE TO CHANGE ITS RATES AS IT WILL, UNLESS
IT HAS UNDERTAKEN BY CONTRACT NOT TO DO SO.  THE ACT COMES INTO PLAY AS
TO RATE CHANGES ONLY IN (1) IMPOSING UPON THE SELLER THE PROCEDURAL
REQUIREMENT OF FILING TIMELY NOTICE OF CHANGE, (2) GIVING THE
COMMISSION AUTHORITY TO REVIEW SUCH CHANGES, AND (3) AUTHORIZING THE
COMMISSION, IN THE CASE OF RATES FOR SALES OF GAS FOR OTHER THAN
EXCLUSIVELY INDUSTRIAL USE, TO SUSPEND THE NEW RATES FOR A FIVE-MONTH
PERIOD AND THEREAFTER TO REQUIRE THE POSTING OF A REFUND BOND PENDING A
DETERMINATION OF THE LAWFULNESS OF THE RATES AS CHANGED.  (SEE SEC.
4(D), (E), AT NOTE 3, SUPRA.) 

IT SEEMS PLAIN THAT CONGRESS, IN SO DRAFTING THE STATUTE, WAS NOT
ONLY EXPRESSING ITS CONVICTION THAT THE PUBLIC INTEREST REQUIRES THE
PROTECTION OF CONSUMERS FROM EXCESSIVE PRICES FOR NATURAL GAS, BUT WAS
ALSO MANIFESTING ITS CONCERN FOR THE LEGITIMATE INTERESTS OF NATURAL
GAS COMPANIES IN WHOSE FINANCIAL STABILITY THE GAS-CONSUMING PUBLIC HAS
A VITAL STAKE.  BUSINESS REALITY DEMANDS THAT NATURAL GAS COMPANIES
SHOULD NOT BE PRECLUDED BY LAW FROM INCREASING THE PRICES OF THEIR
PRODUCT WHENEVER THAT IS THE ECONOMICALLY NECESSARY MEANS OF KEEPING
THE INTAKE AND OUTGO OF THEIR REVENUES IN PROPER BALANCE; OTHERWISE
PROCUREMENT OF THE VAST SUMS NECESSARY FOR THE MAINTENANCE AND
EXPANSION OF THEIR SYSTEMS THROUGH EQUITY AND DEBT FINANCING WOULD
BECOME MOST DIFFICULT, IF NOT IMPOSSIBLE.  THIS CONCERN WAS SURELY A
PROPER ONE FOR CONGRESS TO TAKE INTO ACCOUNT IN FRAMING ITS REGULATORY
SCHEME FOR THE NATURAL GAS INDUSTRY, CF. FEDERAL POWER COMMISSION V.
HOPE NATURAL GAS CO., 320 U.S. 591, 603, AND WE THINK THAT IT DID SO
NOT ONLY BY PRESERVING THE "INTEGRITY" OF PRIVATE CONTRACTUAL
ARRANGEMENTS FOR THE SUPPLY OF NATURAL GAS, 350 U.S., AT 344 (SUBJECT
OF COURSE TO ANY OVERRIDING AUTHORITY OF THE COMMISSION), BUT ALSO BY
PROVIDING IN SEC. 4 FOR THE EARLIEST EFFECTUATION OF CONTRACTUALLY
AUTHORIZED OR OTHERWISE PERMISSIBLE RATE CHANGES CONSISTENT WITH
APPROPRIATE COMMISSION REVIEW.    WHAT HAS BEEN SAID DISPOSES OF THE
QUESTION WHETHER ANYTHING IN THE NATURAL GAS ACT FORBIDS A SELLER TO
CHANGE ITS RATES PURSUANT TO SEC. 4 PROCEDURES SIMPLY BECAUSE ITS
CUSTOMERS HAVE NOT AGREED TO THE AMOUNT OF THE RATE AS CHANGED.  THERE
REMAINS THE QUESTION WHETHER UNITED'S SERVICE AGREEMENTS RESERVED TO IT
THE POWER TO MAKE RATE CHANGES IN THIS MANNER.  THE COMMISSION FOUND
THAT THE AGREEMENTS SO INTENDED, BUT ON ITS VIEW OF THE CASE THE COURT
OF APPEALS FOUND IT UNNECESSARY TO DECIDE THE QUESTION.  WE THINK IT
WOULD BE BOTH UNNECESSARY AND DILATORY FOR US TO REMAND THE CASE TO THE
COURT OF APPEALS FOR CONSIDERATION OF THAT ISSUE, WHICH INVOLVES
MATTERS PECULIARLY WITHIN THE AREA OF THE COMMISSION'S SPECIAL
COMPETENCE AND AS TO WHICH WE COULD HARDLY BE AIDED BY A FURTHER
EXAMINATION OF THE RECORD BY THE COURT OF APPEALS.  INDEED NEITHER SIDE
SUGGESTS SUCH A COURSE, EVEN ALTERNATIVELY, BOTH ASKING US TO DECIDE
THE CASE IN ITS PRESENT POSTURE. 

AFTER SCRUTINIZING THE RECORD WE ARE SATISFIED THAT THE COMMISSION'S
DETERMINATION AS TO THE MEANING OF THE SERVICE AGREEMENTS HERE INVOLVED
WAS AMPLY SUPPORTED BOTH FACTUALLY AND LEGALLY.  THERE IS NO NECESSITY
FOR US TO EMBARK UPON A DETAILED DISCUSSION OF THE VARIOUS CONTENTIONS
MADE BY THE PARTIES, NONE OF WHICH APPEARS TO HAVE BEEN OVERLOOKED OR
MISAPPREHENDED BY THE COMMISSION.  IT SEEMS SUFFICIENT TO SAY THAT THE
RECORD SHOWS THAT THESE AGREEMENTS ARE TYPICAL OF THE "TARIFF-AND
SERVICE" ARRANGEMENTS CONTEMPLATED BY COMMISSION ORDER NO. 144, 18 CFR
SEC. 154.1 ET SEQ.; (FN8) THAT UNTIL THIS CASE NO ONE CONNECTED WITH
THE INDUSTRY SEEMS TO HAVE THOUGHT THAT AGREEMENTS OF THIS SORT
PRECLUDED NATURAL GAS COMPANIES FROM CHANGING THEIR RATES IN ACCORDANCE
WITH AND SUBJECT TO SEC. 4(D) AND (E) PROCEDURES; (FN9) AND THAT THE
RESPONDENTS' PRESENT CONTRARY CONTENTIONS HAD THEIR SOLE GENESIS IN A
MISTAKEN VIEW OF OUR DECISION IN THE MOBILE CASE.  BEYOND THIS, WE FIND
NOTHING IN THESE AGREEMENTS, AS INTERPRETED BY THE FEDERAL POWER
COMMISSION, WHICH IS HOSTILE TO ANY OF THE PROVISIONS OR PURPOSES OF
THE NATURAL GAS ACT.  (FN10) 

FOR THE REASONS GIVEN WE HOLD THAT THE COURT OF APPEALS WAS IN ERROR
IN CONCLUDING THAT IN THE CIRCUMSTANCES OF THIS CASE UNITED COULD NOT
PROCEED TO CHANGE ITS RATES BY FILING UNDER SEC. 4(D) OF THE STATUTE. 
REVERSED. 

FN1  MISSISSIPPI, A NATURAL GAS DISTRIBUTING COMPANY, ALSO PURCHASES
GAS FROM TEXAS GAS AND SOUTHERN GAS.  RESPONDENT MEMPHIS LIGHT, GAS AND
WATER DIVISION, AN AGENCY OF THE CITY OF MEMPHIS ENGAGED IN THE
DISTRIBUTION OF NATURAL GAS, PURCHASES GAS FROM TEXAS GAS, AND HAS NO
DIRECT CONTRACT RELATIONS WITH UNITED.  HOWEVER, IT IS OBLIGATED TO
REIMBURSE TEXAS GAS FOR ANY INCREASE IN THE LATTER'S COST OF GAS
ACQUIRED FROM UNITED. 

FN2  ORIGINALLY THERE WERE SEVEN SUCH AGREEMENTS, OF WHICH FIVE
CONTAINED THE PROVISION QUOTED IN THE TEXT.  HOWEVER, THE OTHER TWO
WERE FOUND BY THE COMMISSION, AND ASSUMED BY THE COURT OF APPEALS, TO
CONTAIN THE EQUIVALENT OF THAT PROVISION, AND ONE OF THE TWO WAS
REPLACED BY A SUPERSEDING AGREEMENT EXPLICITLY CONTAINING THE PROVISION
VERY SHORTLY AFTER THE FILING HERE AT ISSUE. 

FN3  SECTIONS 4(D) AND 4(E) OF THE NATIONAL GAS ACT READ AS FOLLOWS: 

SEC. 4(D):  "UNLESS THE COMMISSION OTHERWISE ORDERS, NO CHANGE SHALL
BE MADE BY ANY NATURAL-GAS COMPANY IN ANY SUCH FILED RATE, CHARGE,
CLASSIFICATION, OR SERVICE, OR IN ANY RULE, REGULATION, OR CONTRACT
RELATING THERETO, EXCEPT AFTER THIRTY DAYS' NOTICE TO THE COMMISSION
AND TO THE PUBLIC.  SUCH NOTICE SHALL BE GIVEN BY FILING WITH THE
COMMISSION AND KEEPING OPEN FOR PUBLIC INSPECTION NEW SCHEDULES STATING
PLAINLY THE CHANGE OR CHANGES TO BE MADE IN THE SCHEDULE OR SCHEDULES
THEN IN FORCE AND THE TIME WHEN THE CHANGE OR CHANGES WILL GO INTO
EFFECT.  THE COMMISSION, FOR GOOD CAUSE SHOWN, MAY ALLOW CHANGES TO
TAKE EFFECT WITHOUT REQUIRING THE THIRTY DAYS' NOTICE HEREIN PROVIDED
FOR BY AN ORDER SPECIFYING THE CHANGES SO TO BE MADE AND THE TIME WHEN
THEY SHALL TAKE EFFECT AND THE MANNER IN WHICH THEY SHALL BE FILED AND
PUBLISHED." 

SEC. 4(E):  "WHENEVER ANY SUCH NEW SCHEDULE IS FILED THE COMMISSION
SHALL HAVE AUTHORITY, EITHER UPON COMPLAINT OF ANY STATE, MUNICIPALITY,
OR STATE COMMISSION, OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, AT
ONCE, AND IF IT SO ORDERS, WITHOUT ANSWER OR FORMAL PLEADING BY THE
NATURAL-GAS COMPANY, BUT UPON REASONABLE NOTICE, TO ENTER UPON A
HEARING CONCERNING THE LAWFULNESS OF SUCH RATE, CHARGE, CLASSIFICATION,
OR SERVICE; AND, PENDING SUCH HEARING AND THE DECISION THEREON, THE
COMMISSION, UPON FILING WITH SUCH SCHEDULES AND DELIVERING TO THE
NATURAL-GAS COMPANY AFFECTED THEREBY A STATEMENT IN WRITING OF ITS
REASONS FOR SUCH SUSPENSION, MAY SUSPEND THE OPERATION OF SUCH SCHEDULE
AND DEFER THE USE OF SUCH RATE, CHARGE, CLASSIFICATION, OR SERVICE, BUT
NOT FOR A LONGER PERIOD THAN FIVE MONTHS BEYOND THE TIME WHEN IT WOULD
OTHERWISE GO INTO EFFECT:  PROVIDED, THAT THE COMMISSION SHALL NOT HAVE
AUTHORITY TO SUSPEND THE RATE, CHARGE, CLASSIFICATION, OR SERVICE FOR
THE SALE OF NATURAL GAS FOR RESALE FOR INDUSTRIAL USE ONLY; AND AFTER
FULL HEARINGS, EITHER COMPLETED BEFORE OR AFTER THE RATE, CHARGE,
CLASSIFICATION, OR SERVICE GOES INTO EFFECT, THE COMMISSION MAY MAKE
SUCH ORDERS WITH REFERENCE THERETO AS WOULD BE PROPER IN A PROCEEDING
INITIATED AFTER IT HAD BECOME EFFECTIVE.  IF THE PROCEEDING HAS NOT
BEEN CONCLUDED AND AN ORDER MADE AT THE EXPIRATION OF THE SUSPENSION
PERIOD, ON MOTION OF THE NATURAL-GAS COMPANY MAKING THE FILING, THE
PROPOSED CHANGE OF RATE, CHARGE, CLASSIFICATION, OR SERVICE SHALL GO
INTO EFFECT.  WHERE INCREASED RATES OR CHARGES ARE THUS MADE EFFECTIVE,
THE COMMISSION MAY, BY ORDER, REQUIRE THE NATURAL-GAS COMPANY TO
FURNISH A BOND, TO BE APPROVED BY THE COMMISSION, TO REFUND ANY AMOUNTS
ORDERED BY THE COMMISSION, TO KEEP ACCURATE ACCOUNTS IN DETAIL OF ALL
AMOUNTS RECEIVED BY REASON OF SUCH INCREASE, SPECIFYING BY WHOM AND IN
WHOSE BEHALF SUCH AMOUNTS WERE PAID, AND, UPON COMPLETION OF THE
HEARING AND DECISION, TO ORDER SUCH NATURAL-GAS COMPANY TO REFUND, WITH
INTEREST, THE PORTION OF SUCH INCREASED RATES OR CHARGES BY ITS
DECISION FOUND NOT JUSTIFIED.  AT ANY HEARING INVOLVING A RATE OR
CHARGE SOUGHT TO BE INCREASED, THE BURDEN OF PROOF TO SHOW THAT THE
INCREASED RATE OR CHARGE IS JUST AND REASONABLE SHALL BE UPON THE
NATURAL-GAS COMPANY, AND THE COMMISSION SHALL GIVE TO THE HEARING AND
DECISION OF SUCH QUESTIONS PREFERENCE OVER OTHER QUESTIONS PENDING
BEFORE IT AND DECIDE THE SAME AS SPEEDILY AS POSSIBLE." 

THE COMMISSION DID NOT SUSPEND THE RATES APPLICABLE TO SALES FOR
RESALE FOR INDUSTRIAL USE ONLY, AS IT HAS ALWAYS TAKEN THE VIEW THAT
UNDER THE STATUTE IT IS WITHOUT POWER TO SUSPEND THE EFFECTIVENESS OF
THESE RATES. 

FN4  SEC. 5(A):  "WHENEVER THE COMMISSION, AFTER A HEARING HAD UPON
ITS OWN MOTION OR UPON COMPLAINT OF ANY STATE, MUNICIPALITY, STATE
COMMISSION, OR GAS DISTRIBUTING COMPANY, SHALL FIND THAT ANY RATE,
CHARGE, OR CLASSIFICATION DEMANDED, OBSERVED, CHARGED, OR COLLECTED BY
ANY NATURAL-GAS COMPANY IN CONNECTION WITH ANY TRANSPORTATION OR SALE
OF NATURAL GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR THAT
ANY RULE, REGULATION, PRACTICE, OR CONTRACT AFFECTING SUCH RATE,
CHARGE, OR CLASSIFICATION IS UNJUST, UNREASONABLE, UNDULY
DISCRIMINATORY, OR PREFERENTIAL, THE COMMISSION SHALL DETERMINE THE
JUST AND REASONABLE RATE, CHARGE, CLASSIFICATION, RULE, REGULATION,
PRACTICE, OR CONTRACT TO BE THEREAFTER OBSERVED AND IN FORCE, AND SHALL
FIX THE SAME BY ORDER:  PROVIDED, HOWEVER, THAT THE COMMISSION SHALL
HAVE NO POWER TO ORDER ANY INCREASE IN ANY RATE CONTAINED IN THE
CURRENTLY EFFECTIVE SCHEDULE OF SUCH NATURAL GAS COMPANY ON FILE WITH
THE COMMISSION, UNLESS SUCH INCREASE IS IN ACCORDANCE WITH A NEW
SCHEDULE FILED BY SUCH NATURAL GAS COMPANY; BUT THE COMMISSION MAY
ORDER A DECREASE WHERE EXISTING RATES ARE UNJUST, UNDULY
DISCRIMINATORY, PREFERENTIAL, OTHERWISE UNLAWFUL, OR ARE NOT THE LOWEST
REASONABLE RATES." 

FN5  SEE NOTE 3, SUPRA. 

FN6  SEE NOTE 3, SUPRA. 

FN7  A MAJORITY OF THE COURT BELOW THOUGHT THAT SUCH A LIMITATION
SHOULD BE IMPORTED INTO THE ACT TO FEND AGAINST "DEBILITATING SECTION
5(A)" BY MAKING IT POSSIBLE FOR A SELLER TO RESERVE BY CONTRACT THE
RIGHT TO AVOID "THE DELAY AND THE MORE STRINGENT PROOF REQUIREMENTS OF
AT 82, NOTE 3, 250 F.2D, AT 407, NOTE 3.  APART FROM THE FACT THAT THIS
APPROACH SEEMS TO ASSUME A NEGATIVE ANSWER TO THE VERY QUESTION AT
ISSUE - WHETHER CONGRESS INTENDED THAT NATURAL GAS COMPANIES SHOULD BE
PERMITTED, SO FAR AS THE STATUTE IS CONCERNED, TO FILE RATE CHANGES
UNDER SEC. 4(D) WITHOUT SECURING PRIOR CUSTOMER AGREEMENT TO THE
CHANGED RATE - IT MAY BE POINTED OUT THAT THE COMMISSION APPEARS
CONSISTENTLY TO HAVE VIEWED THE PROOF REQUIREMENTS UNDER SECS. 4(E) AND
5(A) AS EQUALLY "STRINGENT."  SEE FPC, THIRTY-FIFTH ANNUAL REPORT
(1955), AT 106; THIRTY-FOURTH ANNUAL REPORT (1954), AT 106; THIRTY
THIRD ANNUAL REPORT (1953), AT 99. 

FN8  WHEN THE NATURAL GAS ACT BECAME LAW IN 1938, NATURAL GAS
COMPANIES WERE PERMITTED TO FILE THEIR EXISTING SALES CONTRACTS AS RATE
SCHEDULES UNDER SEC. 4(C).  SCHEDULES IN THIS FORM WERE EXTREMELY
LENGTHY, UNWIELDY, AND OTHERWISE UNSATISFACTORY IN THAT IT WAS MOST
DIFFICULT FOR CUSTOMERS, COMPETITORS, AND THE COMMISSION ITSELF TO
ASCERTAIN WHETHER RATES TO VARIOUS CUSTOMERS WERE UNDULY DISCRIMINATORY
OR OTHERWISE UNREASONABLE.  THE COMMISSION THEREFORE PROPOSED
REGULATIONS REQUIRING THE CONVERSION OF RATE CONTRACTS INTO A "TARIFF
AND-SERVICE-AGREEMENT" SYSTEM, AND THESE REGULATIONS WERE PROMULGATED
IN OCTOBER 1948 AS ORDER NO. 144.  UNDER THE TARIFF-AND-SERVICE
AGREEMENT SYSTEM, THE AGREEMENT BETWEEN BUYER AND SELLER DOES NOT
ITSELF CONTAIN A PRICE TERM, BUT RATHER REFERS TO RATE SCHEDULES OF
GENERAL APPLICABILITY ON FILE WITH THE COMMISSION.  IT IS NOTEWORTHY
THAT ORDER NO. 144 EXPRESSLY CONTEMPLATES THAT A SELLER MAY RESERVE THE
"PRIVILEGE" OF FILING RATE CHANGES UNDER SEC. 4 OF THE ACT.  18 CFR
SEC. 154.38(D)(3). 

FN9  BETWEEN THE DATE OF THE MOBILE DECISION AND THAT OF THE COURT
BELOW IT APPEARS THAT ONLY THREE PURCHASERS OF NATURAL GAS UNDER
SERVICE AGREEMENTS SIMILAR TO THOSE HERE INVOLVED (ONE OF THEM
MISSISSIPPI, A RESPONDENT HERE) MOVED TO DISMISS CHANGED RATE SCHEDULES
ON THE GROUND THAT THE AGREEMENTS DID NOT PERMIT THEIR FILING, ALTHOUGH
SOME 600 SUCH PURCHASERS WERE AFFECTED BY RATE CHANGES FILED DURING
THAT PERIOD. 

FN10  RESPONDENTS ARGUE THAT THE "EFFECTIVE SUPERSEDING RATE" CLAUSE
OF THE AGREEMENTS MUST BE READ AS REFERRING ONLY TO SUPERSEDING RATES
ESTABLISHED AFTER A SEC. 5(A) PROCEEDING, BECAUSE IT WOULD BE
UNREASONABLE TO FIND THAT THE BUYER-SIGNATORIES TO THE AGREEMENTS HAD
INTENDED TO AUTHORIZE UNITED TO CHANGE ITS "INDUSTRIAL" RATES BY A SEC.
4(D) FILING IN LIGHT OF THE FACT THAT SUCH RATES ARE NOT SUBJECT TO
SUSPENSION AND REFUND UNDER THE STATUTE.  APART FROM THE CIRCUMSTANCES
THAT (1) UNITED'S "INDUSTRIAL" SALES UNDER THESE AGREEMENTS APPEAR TO
HAVE BEEN A RELATIVELY MINOR FACTOR; (2) THE CLAUSE WOULD BE ENTIRELY
SUPERFLUOUS IF CONSTRUED AS RESPONDENTS WOULD HAVE IT, SINCE AS A
MATTER OF LAW RATE CHANGES ORDERED BY THE COMMISSION AFTER A SEC. 5(A)
PROCEEDING WOULD HAVE BEEN INCORPORATED INTO THE AGREEMENTS, NORTHERN
PACIFIC R. CO. V. ST. PAUL & TACOMA LUMBER CO., 4 F.2D 359 (C.A. 9TH
CIR. 1925), APPEAL DISMISSED, 269 U.S. 535; MARKET STREET R. CO. V.
PACIFIC GAS & ELECTRIC CO., 6 F.2D 633 (D.C.N.D. CAL.  1925), APPEAL
DISMISSED, 271 U.S. 691; AND (3) THE "INDUSTRIAL" RATES OF UNITED HAVE
CONSISTENTLY BEEN BELOW ITS OTHER RATES, THE FORCE OF RESPONDENTS'
CONTENTION IS WHOLLY DESTROYED BY THE FACT THAT IT APPEARS THAT THE
BUYER-SIGNATORIES TO THE AGREEMENTS ARE ENTITLED BY CONTRACT WITH THEIR
CUSTOMERS TO PASS ON ANY RATE INCREASES EFFECTED BY UNITED.  UNDER
THESE CIRCUMSTANCES IT CAN HARDLY BE SAID TO BE INCONCEIVABLE, OR EVEN
UNLIKELY, THAT THE BUYERS WOULD HAVE BEEN WILLING TO AUTHORIZE UNITED
TO CHANGE ITS "GOING" RATES TO THEM UNDER SEC. 4(D). 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THIS DECISION MARKS, I THINK, A RETREAT FROM OUR HOLDING IN UNITED
GAS PIPE LINE CO. V. MOBILE GAS SERVICE CORP., 350 U.S. 332.  IN EVERY
CASE THE FACTS ARE, OF COURSE, DIFFERENT FROM THOSE IN THE PRECEDENTS. 
BUT HERE THE DIFFERENCE DOES NOT SEEM TO ME TO BE FUNDAMENTAL.  THE
CONTRACT RATE IN THE MOBILE CASE WHICH WAS SOUGHT TO BE CHANGED
UNILATERALLY WAS FIXED IN A SERVICE AGREEMENT.  HERE THE CONTRACT RATE
WHICH WAS CHANGED UNILATERALLY WAS IN THE SELLER'S RATE SCHEDULE ON
FILE WITH THE COMMISSION.  (FN1) 

I THOUGHT THE ESSENCE OF OUR RULING IN THE MOBILE CASE WAS IN THE
WORDS:  "THE NATURAL GAS ACT DOES NOT EMPOWER NATURAL GAS COMPANIES
UNILATERALLY TO CHANGE THEIR CONTRACTS."  350 U.S., AT 344.  THAT WAS
EMPHASIZED OVER AND AGAIN ESPECIALLY IN THE DISCUSSION OF WHEN
UNILATERAL AND BILATERAL CHANGES IN RATES WERE PERMISSIBLE: 

"TO ESTABLISH EX PARTE, AND CHANGE AT WILL, THE RATES OFFERED TO
PROSPECTIVE CUSTOMERS; OR TO FIX BY CONTRACT, AND CHANGE ONLY BY MUTUAL
AGREEMENT, THE RATE AGREED UPON WITH A PARTICULAR CUSTOMER."  350 U.S.,
AT 343. 

LIKE THE JUDGES OF THE COURT OF APPEALS, I THOUGHT THAT THIS MEANT
THAT ALL SEC. 4(D) RATES HAD TO BE RATES AGREED UPON BY THE PARTIES TO
THE CONTRACT.  THAT IS THE REASON, I THOUGHT, WHY CONGRESS MADE THE
CONTROL OF THE COMMISSION OVER SUCH RATES SO SLIGHT.  THAT THE
SUPERVISION IS RESTRICTED IS EVIDENCED BY TWO ELEMENTS IN SEC. 4(E):
FIRST, THE COMMISSION CAN SUSPEND THOSE AGREED-UPON CHANGES FOR NO MORE
THAN FIVE MONTHS; SECOND, NO POWER OF SUSPENSION WHATSOEVER IS GIVEN TO
RATES "FOR RESALE FOR INDUSTRIAL USE ONLY."  (FN2)    BUT NOW WE ARE
TOLD THAT THE REQUIREMENT OF BILATERAL RATE MAKING IS SATISFIED BY THE
PROVISION IN THE CONTRACT THAT THE CONTROLLING RATE IS THE "EFFECTIVE"
RATE AND AN "EFFECTIVE" RATE IS ONE WHICH THE SELLING COMPANY ALONE
CHOOSES TO FIX AND FILE UNDER SEC. 4. 

I FIND INSUPERABLE DIFFICULTIES WITH THAT VIEW.  THE CONTRACT DOES
NOT SAY THAT THE BUYER WILL CONSENT TO ANY RATE INCREASE WHICH THE
SELLER MAY FILE.  IT IS AN AGREEMENT TO PAY WHATEVER MAY BE THE
"EFFECTIVE" RATE; IT IS NOT AN AGREEMENT TO THE ESTABLISHMENT OF THAT
NEW RATE.  THE CONSTRUCTION OF THIS TARIFF IS A QUESTION OF LAW (SEE
GREAT NO. R. CO. V. MERCHANTS ELEV.  CO., 259 U.S. 285, 290) WHICH WE
SHOULD RESOLVE IN LIGHT OF THE REGULATORY SYSTEM THAT CONGRESS HAS
IMPOSED ON THE INDUSTRY. 

THE CONSTRUCTION ADOPTED BY THE COURT HAS DIRE CONSEQUENCES.  IT
MAKES A SHAMBLES OF THE ACT SO FAR AS CONSUMER INTERESTS ARE CONCERNED;
AND THEY ARE THE ONES THE ACT WAS DESIGNED TO PROTECT.  (FN3)  THE
RULING SACRIFICES THESE INTERESTS IN THE CAUSE OF THOSE WHO EXPLOIT
THIS FIELD.  NOW THE REGULATORY AGENCY IS LEFT POWERLESS TO PREVENT A
SELLING COMPANY, AFTER THE 30-DAY WAITING PERIOD, FROM MAKING CONSUMERS
PAY IMMEDIATELY WHATEVER RATE THE COMPANY FIXES.  THERE IS POWER IN THE
COMMISSION TO SUSPEND THE NEW RATE FOR FIVE MONTHS; BUT IN CASE OF
INDUSTRIAL RATES EVEN THAT LIMITED POWER OF SUSPENSION IS ABSENT.  IF
THE COMMISSION SHOULD ULTIMATELY DECIDE IN A SEC. 4(E) PROCEEDING THAT
THE NEW RATES ARE NOT JUST AND REASONABLE, THE VICTORY FOR THE
CONSUMERS MAY BE AN ILLUSORY ONE, FOR ADMINISTRATIVE DIFFICULTIES MAKE
IT DOUBTFUL THAT THEY WILL RECEIVE THE BENEFIT OF ANY REFUNDS.  (FN4)
AND IF THE INCREASES ARE IN INDUSTRIL RATES, IT APPEARS THAT THE
COMMISSION HAS NO AUTHORITY TO REQUIRE A REFUND OF ANY UNJUSTIFIED
INCREASE COLLECTED BEFORE ITS ORDER SETTING ASIDE THE INCREASE.  EVEN
WHEN THE COMMISSION CATCHES UP WITH THE NEW HIGH RATE FIXED BY THE
SELLING COMPANY AT ITS WILL AND STRIKES IT DOWN, ITS ACTION PROMISES TO
HAVE ONLY A FLEETING EFFECT.  THE PIPELINE COMPANY CAN NOW IN ITS
UNFETTERED DISCRETION RAISE THE RATES AGAIN SIMPLY BY FILING A NEW
RATE; AND IF IT IS AN INDUSTRIAL RATE, IT CANNOT EVEN BE SUSPENDED. 
(FN5) 

I WOULD NOT CONSTRUE THE ACT SO AS TO PRODUCE SUCH DESTRUCTIVE
CONSEQUENCES.  I WOULD ALLOW THE SEC. 4 RATES TO EMBRACE ONLY THE
"RATES AGREED UPON" BY THE PIPELINE AND THE CUSTOMER, AS WE STATED IN
THE MOBILE CASE, APPLYING SEC. 5 TO ALL OTHER CASES.  I FEAR THAT OUR
FAILURE TO DO SO TURNS THE REAL REGULATION OVER TO THE PIPELINE
COMPANIES.  I CANNOT IMAGINE THAT THE CONGRESS THAT PASSED THIS ACT
ENVISAGED ANY SUCH TRAGIC RESULT FOR CONSUMERS; AND WE ARE NOT DRIVEN
TO IT BY UNAMBIGUOUS TERMS OF THE ACT. 

FN1  AT THE TIME THE CONTRACT IN MOBILE WAS ENTERED INTO THE INDUSTRY
PRACTICE WAS TO SET RATES IN THE SERVICE CONTRACTS WHICH WERE FILED
WITH THE COMMISSION AS THE RATE SCHEDULES.  BUT IN 1948 THE COMMISSION
PROMULGATED ORDER 144 REQUIRING THE CONVERSION OF ALL RATE CONTRACTS
INTO TARIFF-AND-SERVICE AGREEMENT FORM.  FROM THAT TIME ON RATES HAVE
NOT BEEN INCLUDED IN THE SERVICE CONTRACTS; RATHER, THEY ARE INCLUDED
IN RATE SCHEDULES OF GENERAL APPLICABILITY ON FILE WITH THE COMMISSION
TO WHICH REFERENCE IS MADE IN THE INDIVIDUAL SERVICE AGREEMENTS.  SEE
18 CRF SEC. 154.1 ET SEQ.  HENCE THE DIFFERENCE IN THE PRICE PROVISION
IN THE CONTRACTS INVOLVED HERE FROM THAT INVOLVED IN MOBILE. 

FN2  SECTION 4(E) PROVIDES IN PART: 

"WHENEVER ANY SUCH NEW SCHEDULE IS FILED THE COMMISSION SHALL HAVE
AUTHORITY, EITHER UPON COMPLAINT OF ANY STATE, MUNICIPALITY, OR STATE
COMMISSION, OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, AT ONCE, AND
IF IT SO ORDERS, WITHOUT ANSWER OR FORMAL PLEADING BY THE NATURAL-GAS
COMPANY, BUT UPON REASONABLE NOTICE, TO ENTER UPON A HEARING CONCERNING
THE LAWFULNESS OF SUCH RATE, CHARGE, CLASSIFICATION, OR SERVICE; AND,
PENDING SUCH HEARING AND THE DECISION THEREON, THE COMMISSION, UPON
FILING WITH SUCH SCHEDULES AND DELIVERING TO THE NATURAL-GAS COMPANY
AFFECTED THEREBY A STATEMENT IN WRITING OF ITS REASONS FOR SUCH
SUSPENSION, MAY SUSPEND THE OPERATION OF SUCH SCHEDULE AND DEFER THE
USE OF SUCH RATE, CHARGE, CLASSIFICATION, OR SERVICE, BUT NOT FOR A
LONGER PERIOD THAN FIVE MONTHS BEYOND THE TIME WHEN IT WOULD OTHERWISE
GO INTO EFFECT:  PROVIDED, THAT THE COMMISSION SHALL NOT HAVE AUTHORITY
TO SUSPEND THE RATE, CHARGE, CLASSIFICATION, OR SERVICE FOR THE SALE OF
NATURAL GAS FOR RESALE FOR INDUSTRIAL USE ONLY  ...  ." 

FN3  SEE FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591,
610.  PROTECTION OF THE CONSUMER INTEREST WAS TO BE DONE THROUGH
OCCUPYING A FIELD FROM WHICH THE STATES HAD BEEN BARRED.  H.R. REP. NO.
709, 75TH CONG., 1ST SESS., P. 2. 

FN4  IN ITS 1953 REPORT TO CONGRESS THE COMMISSION RECOGNIZED THAT
"THE COLLECTION OF HIGHER RATES UNDER BOND, WHILE PROVIDING PROTECTION
TO THE PIPELINE COMPANY AGAINST ULTIMATE LOSS IN REVENUES, IS
UNSATISFACTORY, BURDENSOME, AND PRESENTS MANY DIFFICULT PROBLEMS FOR
THE COMPANY AS WELL AS FOR THE DISTRIBUTION UTILITIES WHICH MUST PAY
THE HIGHER RATES.  THE PROBLEM OF DISTRIBUTING IMPOUNDED FUNDS TO
CONSUMERS IN THE EVENT THAT PROPOSED RATE INCREASES ARE DENIED EVEN IN
PART IS TIME-CONSUMING AND EXPENSIVE."  REPORT, FEDERAL POWER
COMMISSION, 1953, P. 101. 

FN5  AS STATED BY THE STATE OF WASHINGTON, AMICUS CURIAE, "BY THE
LEGALLY AVAILABLE EXPEDIENT OF FILING ANOTHER SCHEDULE OF INCREASED
RATES UNDER SEC. 4(D), ANY RELIEF OBTAINED BY A COMMISSION ORDER AFTER
REVIEW COULD BE EFFECTIVELY NULLIFIED 30 DAYS AFTER IT WAS OBTAINED." 
..END :





















UNITED STATES V. A & P TRUCKING CO. 358 U.S. 121 


NO. 32.  ARGUED OCTOBER 20, 1958.  - DECIDED DECEMBER 8, 1958.  -
REVERSED. 


A PARTNERSHIP MAY BE PROSECUTED AS AN ENTITY UNDER SEC. 222(A) OF THE
MOTOR CARRIER ACT FOR "KNOWINGLY AND WILLFULLY" VIOLATING CERTIFICATION
REQUIREMENTS AND MOTOR CARRIER REGULATIONS OF THE INTERSTATE COMMERCE
COMMISSION AND UNDER 18 U.S.C. SEC. 835 FOR "KNOWINGLY" VIOLATING
REGULATIONS FOR THE SAFE TRANSPORTATION IN INTERSTATE COMMERCE OF
EXPLOSIVES AND OTHER DANGEROUS ARTICLES.  PP. 121-127. 

(A)  THE WORDS "KNOWINGLY AND WILLFULLY" IN SEC. 222(A) AND THE WORD
"KNOWINGLY" IN SEC. 835 DOE NOT ELIMINATE PARTNERSHIPS FROM THE
COVERAGE OF THESE STATUTES.  PP. 125-126. 

(B)  A PARTNERSHIP CAN VIOLATE EACH OF THESE STATUTES QUITE APART
FROM THE PARTICIPATION AND KNOWLEDGE OF THE PARTNERS AS INDIVIDUALS. 
PP. 126-127. 

UNITED STATES V. A & P TRUCKING CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES ISSUES SIMILAR TO THOSE INVOLVED IN UNITED STATES V.
AMERICAN FREIGHTWAYS CO., 352 U.S. 1020, WHERE A DISMISSAL OF AN
INFORMATION CHARGING A PARTNERSHIP ENTITY WITH VIOLATIONS OF 18 U.S.C.
SEC. 835 WAS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

APPELLEES, TWO PARTNERSHIPS, WERE CHARGED, AS ENTITIES, IN SEPARATE
INFORMATIONS WITH VIOLATIONS OF 18 U.S.C. SEC. 835, WHICH MAKES IT
CRIMINAL KNOWINGLY TO VIOLATE INTERSTATE COMMERCE COMMISSON REGULATIONS
FOR THE SAFE TRANSPORTATION IN INTERSTATE COMMERCE OF "EXPLOSIVES AND
OTHER DANGEROUS ARTICLES."  APPELLEE A & P TRUCKING COMPANY WAS ALSO
CHARGED WITH NUMEROUS VIOLATIONS OF 49 U.S.C. SEC. 322(A)(SEC.  222(A)
OF THE MOTOR CARRIER ACT OF 1935).  (FN1)  THE DISTRICT COURT
DISMISSED, ON MOTION, THE INFORMATIONS ON THE GROUND THAT A PARTNERSHIP
ENTITY CANNOT BE GUILTY OF VIOLATING THE STATUTES INVOLVED.  THE
GOVERNMENT APPEALED DIRECTLY TO THIS COURT UNDER THE CRIMINAL APPEALS
ACT, 18 U.S.C.  SEC. 3731, AND WE NOTED PROBABLE JURISDICTION.  356
U.S. 917.  FOR REASONS SET FORTH BELOW WE HOLD THAT THE INFORMATIONS
WERE ERRONEOUSLY DISMISSED. 

49 U.S.C. SEC. 322(A), THE COMPREHENSIVE MISDEMEANOR PROVISION OF THE
MOTOR CARRIER ACT, PROVIDES THAT "ANY PERSON KNOWINGLY AND WILLFULLY
VIOLATING ANY PROVISION OF THIS CHAPTER (PART II OF THE INTERSTATE
COMMERCE ACT), OR ANY RULE, REGULATION, REQUIREMENT, OR ORDER (OF THE
INTERSTATE COMMERCE COMMISSION) THEREUNDER, OR ANY TERM OR CONDITION OF
ANY CERTIFICATE, PERMIT, OR LICENSE, FOR WHICH A PENALTY IS NOT
OTHERWISE HEREIN PROVIDED, SHALL, UPON CONVICTION THEREOF, BE FINED
...  ."  THE MOTOR CARRIER ACT ALSO CONTAINS ITS OWN DEFINITION OF THE
WORD "PERSON":  "THE TERM 'PERSON' MEANS ANY INDIVIDUAL, FIRM,
COPARTNERSHIP, CORPORATION, COMPANY, ASSOCIATION, OR JOINT-STOCK
ASSOCIATION; ...  ."  49 U.S.C. SEC. 303(A). 

18 U.S.C. SEC. 835 PROVIDES THAT "WHOEVER KNOWINGLY VIOLATES ANY SUCH
REGULATION (ICC REGULATIONS PERTAINING TO THE SAFE TRANSPORT OF
DANGEROUS ARTICLES) SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED
NOT MORE THAN ONE YEAR, OR BOTH; ...  ."  THE SECTION MAKES SUCH
REGULATIONS BINDING ON "ALL COMMON CARRIERS" ENGAGED IN INTERSTATE
COMMERCE.  AND 1 U.S.C. SEC. 1, PART OF A CHAPTER ENTITLED "RULES OF
CONSTRUCTION" AND IN LIGHT OF WHICH SEC. 835 MUST BE READ, PROVIDES
THAT "IN DETERMINING THE MEANING OF ANY ACT OF CONGRESS, UNLESS THE
CONTEXT INDICATES OTHERWISE -  ...  THE WORDS 'PERSON' AND 'WHOEVER'
INCLUDE CORPORATIONS, COMPANIES, ASSOCIATIONS, FIRMS, PARTNERSHIPS,
SOCIETIES, AND JOINT STOCK COMPANIES, AS WELL AS INDIVIDUALS; ...  ." 
THE WORD "WHOEVER" IN 18 U.S.C. SEC. 835 MUST, THEREFORE, BE CONSTRUED
TO INCLUDE PARTNERSHIPS "UNLESS THE CONTEXT INDICATES OTHERWISE." 
(FN2) 

WE THINK THAT PARTNERSHIPS AS ENTITIES MAY BE PROCEEDED AGAINST UNDER
BOTH SEC. 322(A) AND SEC. 835.  THE PURPOSE OF BOTH STATUTES IS CLEAR:
TO ENSURE COMPLIANCE BY MOTOR CARRIERS, AMONG OTHERS, WITH SAFETY AND
OTHER REQUIREMENTS LAID DOWN BY THE INTERSTATE COMMERCE COMMISSION IN
THE EXERCISE OF ITS STATUTORY DUTY TO REGULATE THE OPERATIONS OF
INTERSTATE CARRIERS FOR HIRE.  IN THE EFFECTUATION OF THIS POLICY IT
CERTAINLY MAKES NO DIFFERENCE WHETHER THE CARRIER WHICH COMMITS THE
INFRACTION IS ORGANIZED AS A CORPORATION, A JOINT STOCK COMPANY, A
PARTNERSHIP, OR AN INDIVIDUAL PROPRIETORSHIP.  THE MISCHIEF IS THE
SAME, AND WE THINK THAT CONGRESS INTENDED TO MAKE THE CONSEQUENCES OF
INFRACTION THE SAME. 

TRUE, THE COMMON LAW MADE A DISTINCTION BETWEEN A CORPORATION AND A
PARTNERSHIP, DEEMING THE LATTER NOT A SEPARATE ENTITY FOR PURPOSES OF
SUIT.  BUT THE POWER OF CONGRESS TO CHANGE THE COMMON-LAW RULE IS NOT
TO BE DOUBTED.  SEE UNITED STATES V. ADAMS EXPRESS CO., 229 U.S. 381. 
WE THINK IT BEYOND DISPUTE THAT IT HAS DONE SO IN SEC. 322(A) FOR, AS
WE HAVE SEEN, "PERSON" IN THAT SECTION IS EXPRESSLY DEFINED IN THE
MOTOR CARRIER ACT TO INCLUDE PARTNERSHIPS.  WE THINK IT LIKEWISE HAS
DONE SO IN SEC. 835, SINCE WE FIND NOTHING IN THAT SECTION WHICH WOULD
JUSTIFY OUR NOT APPLYING TO THE WORD "WHOEVER" THE DEFINITION GIVEN IT
IN 1 U.S.C. SEC. 1, WHICH INCLUDES PARTNERSHIPS.  SECTION 835 MAKES
REGULATIONS PROMULGATED BY THE ICC FOR THE TRANSPORTATION OF DANGEROUS
ARTICLES BINDING ON ALL COMMON CARRIERS.  IN VIEW OF THE FACT THAT MANY
MOTOR CARRIERS ARE ORGANIZED AS PARTNERSHIPS RATHER THAN AS
CORPORATIONS, THE CONCLUSION IS NOT LIGHTLY TO BE REACHED THAT CONGRESS
INTENDED THAT SOME CARRIERS SHOULD NOT BE SUBJECT TO THE FULL GAMUT OF
SANCTIONS PROVIDED FOR INFRACTIONS OF ICC REGULATIONS MERELY BECAUSE OF
THE FORM UNDER WHICH THEY WERE ORGANIZED TO DO BUSINESS.  (FN3)  MORE
PARTICULARLY, WE PERCEIVE NO REASON WHY CONGRESS SHOULD HAVE INTENDED
TO MAKE PARTNERSHIP MOTOR CARRIERS CRIMINALLY LIABLE FOR INFRACTIONS OF
SEC. 322(A), BUT NOT FOR VIOLATIONS OF SEC. 835.  (FN4) 

IT IS ARGUED THAT THE WORDS "KNOWINGLY" (SEC. 835) AND "KNOWINGLY AND
WILLFULLY" (SEC. 322(A)) BY IMPLICATION ELIMINATE PARTNERSHIPS FROM THE
COVERAGE OF THE STATUTES, BECAUSE A PARTNERSHIP, AS OPPOSED TO ITS
INDIVIDUAL PARTNERS, CANNOT SO ACT.  BUT THE SAME INABILITY SO TO ACT
IN FACT IS TRUE, OF COURSE, WITH REGARD TO CORPORATIONS AND OTHER
ASSOCIATIONS; YET IT IS ELEMENTARY THAT SUCH IMPERSONAL ENTITIES CAN BE
GUILTY OF "KNOWING" OR "WILLFUL" VIOLATIONS OF REGULATORY STATUTES
THROUGH THE DOCTRINE OF RESPONDANT SUPERIOR.  THUS IN UNITED STATES V.
ADAMS EXPRESS CO., SUPRA, IN WHICH THE ADAMS EXPRESS CO., A JOINT STOCK
ASSOCIATION, WAS INDICTED FOR "WILLFULLY" RECEIVING SUMS FOR EXPRESSAGE
IN EXCESS OF ITS SCHEDULED RATES, MR. JUSTICE HOLMES SAID, AT PP. 389
390: 

"IT HAS BEEN NOTORIOUS FOR MANY YEARS THAT SOME OF THE GREAT EXPRESS
COMPANIES ARE ORGANIZED AS JOINT STOCK ASSOCIATIONS, AND THE REASON FOR
THE AMENDMENT HARDLY COULD BE SEEN UNLESS IT WAS INTENDED TO BRING
THOSE ASSOCIATIONS UNDER THE ACT.  AS SUGGESTED IN THE ARGUMENT FOR THE
GOVERNMENT, NO ONE, CERTAINLY NOT THE DEFENDANT, SEEMS TO HAVE DOUBTED
THAT THE STATUTE NOW IMPOSES UPON THEM THE DUTY TO FILE SCHEDULES OF
RATES  ... .  BUT IF IT IMPOSES UPON THEM THE DUTIES UNDER THE WORDS
COMMON CARRIER AS INTERPRETED, IT IS REASONABLE TO SUPPOSE THAT THE
SAME WORDS ARE INTENDED TO IMPOSE UPON THEM THE PENALTY INFLICTED ON
COMMON CARRIERS IN CASE THOSE DUTIES ARE NOT PERFORMED  ...  . 

"THE POWER OF CONGRESS HARDLY IS DENIED.  THE CONSTITUTIONALITY OF
THE STATUTE AS AGAINST CORPORATIONS IS ESTABLISHED, NEW YORK CENTRAL &
HUDSON RIVER R.R. CO. V. UNITED STATES, 212 U.S. 481, 492, AND NO
REASON IS SUGGESTED WHY CONGRESS HAS NOT EQUAL POWER TO CHARGE THE
PARTNERSHIP ASSETS WITH A LIABILITY AND TO PERSONIFY THE COMPANY SO FAR
AS TO COLLECT A FINE BY PROCEEDING AGAINST IT BY THE COMPANY NAME. 
THAT IS WHAT WE BELIEVE THAT CONGRESS INTENDED TO DO  ...  ." 

THE POLICY TO BE SERVED IN THIS CASE IS THE SAME.  THE BUSINESS
ENTITY CANNOT BE LEFT FREE TO BREAK THE LAW MERELY BECAUSE ITS OWNERS,
STOCKHOLDERS IN THE ADAMS CASE, PARTNERS IN THE PRESENT ONE, DO NOT
PERSONALLY PARTICIPATE IN THE INFRACTION.  THE TREASURY OF THE BUSINESS
MAY NOT WITH IMPUNITY OBTAIN THE FRUITS OF VIOLATIONS WHICH ARE
COMMITTED KNOWINGLY BY AGENTS OF THE ENTITY IN THE SCOPE OF THEIR
EMPLOYMENT.  (FN5)  THUS PRESSURE IS BROUGHT ON THOSE WHO OWN THE
ENTITY TO SEE TO IT THAT THEIR AGENTS ABIDE BY THE LAW.  (FN6) 

WE HOLD, THEREFORE, THAT A PARTNERSHIP CAN VIOLATE EACH OF THE
STATUTES HERE IN QUESTION QUITE APART FROM THE PARTICIPATION AND
KNOWLEDGE OF THE PARTNERS AS INDIVIDUALS.  THE COROLLARY IS, OF COURSE,
THAT THE CONVICTION OF A PARTNERSHIP CANNOT BE USED TO PUNISH THE
INDIVIDUAL PARTNERS, WHO MIGHT BE COMPLETELY FREE OF PERSONAL GUILT. 
AS IN THE CASE OF CORPORATIONS, THE CONVICTION OF THE ENTITY CAN LEAD
ONLY TO A FINE LEVIED ON THE FIRM'S ASSETS.  REVERSED. 

FN1  THE INFORMATION AS TO APPELLEE A & P TRUCKING COMPANY CHARGED IN
ONE COUNT AN OFFENSE UNDER 18 U.S.C. SEC. 835 THROUGH THE
TRANSPORTATION BY TRUCK OF CHROMIC ACID WITHOUT THE MARKINGS OR
PLACARDINGS PRESCRIBED BY 49 CFR SEC. 77.823(A).  IT CHARGED IN 34
OTHER COUNTS OFFENSES UNDER 40 U.S.C. SEC. 322(A), CONSISTING OF
FAILURE TO COMPLY WITH 40 CFR SEC. 191.8, WHICH PRESCRIBES PHYSICAL
EXAMINATIONS AND CERTIFICATES FOR DRIVERS OF TRUCKS (ONE COUNT),
VIOLATION OF 49 CFR, 1958 CUM. POCKET SUPP., SEC. 193.95(A), WHICH
REQUIRES THAT COMMON-CARRIER TRUCKS BE EQUIPPED WITH FIRE EXTINGUISHERS
(ONE COUNT), AND VIOLATION OF 49 U.S.C. SEC. 306(A), WHICH FORBIDS THE
OPERATION OF A COMMON-CARRIER TRUCK IN INTERSTATE COMMERCE WITHOUT A
CERTIFICATE OF CONVENIENCE AND NECESSITY (32 COUNTS).  THE INFORMATION
AS TO APPELLEE HOPLA TRUCKING COMPANY CHARGED TWO VIOLATIONS OF 18
U.S.C. SEC. 835, IN THAT HOPLA SHIPPED METHANOL, A FLAMMABLE LIQUID,
WITHOUT PROPERLY MARKING OR PLACARDING THE TRUCK AS REQUIRED BY 49 CFR
SEC. 77.823(A), AND WITHOUT ITS DRIVER HAVING IN HIS POSSESSION A PAPER
SHOWING THE PRESCRIBED LABELS REQUIRED FOR THE OUTSIDE CONTAINERS OF
THE METHANOL AS REQUIRED BY 49 CFR SEC. 77.817. 

SUBSEQUENT TO THE FILING OF THE INFORMATION AGAINST A & P TRUCKING
COMPANY, 49 U.S.C.  SEC. 322(A) WAS AMENDED TO INCREASE THE FINES
PROVIDED FOR ITS VIOLATION.  SEE 49 U.S.C.  (SUPP. V) SEC. 322(A). 

FN2  IT IS SIGNIFICANT THAT THE DEFINITION OF "WHOEVER" IN 1 U.S.C.
SEC. 1 WAS FIRST ENACTED INTO LAW AS PART OF THE VERY SAME STATUTE
WHICH ENACTED INTO POSITIVE LAW THE REVISED CRIMINAL CODE.  62 STAT.
683, 859 (1948).  THE CONNECTION BETWEEN 1 U.S.C. SEC. 1 AND THE
CRIMINAL CODE, WHICH INCLUDES SEC. 835, IS THUS MORE THAN A TOKEN ONE,
THE VERY SAME STATUTE WHICH CREATES THE CRIME ADMONISHING THAT
"WHOEVER" IS TO BE LIBERALLY INTERPRETED. 

FN3  CONGRESS HAS SPECIFICALLY INCLUDED PARTNERSHIPS WITHIN THE
DEFINITION OF "PERSON" IN A LARGE NUMBER OF REGULATORY ACTS, THUS
SHOWING ITS INTENT TO TREAT PARTNERSHIPS AS ENTITIES.  SEE, E.G., CIVIL
AERONAUTICS ACT, 52 STAT. 979, 49 U.S.C. SEC. 401 (27); FEDERAL
COMMUNICATIONS ACT, 48 STAT. 1066, 47 U.S.C. SEC. 153(I); SHIPPING ACT,
39 STAT. 729, 46 U.S.C. SEC. 801; TARIFF ACT, 46 STAT. 708, 19 U.S.C.
SEC. 1401(D). 

FN4  THE FACT THAT SEC. 835 PROVIDES FOR IMPRISONMENT, AS WELL AS
FINE, FOR ITS VIOLATION, WHEREAS SEC. 322(A) PROVIDES ONLY FOR FINES,
DOES NOT LEAD TO A DIFFERENT CONCLUSION.  CF. UNITED STATES V. UNION
SUPPLY CO., 215 U.S. 50. 

FN5  SINCE THE TWO INFORMATIONS WERE HELD INSUFFICIENT ON THEIR FACE,
WE MUST, FOR PRESENT PURPOSES, ACCEPT AS TRUE THEIR ALLEGATIONS THAT
THE OFFENSES CHARGED WERE NOT INADVERTENTLY COMMITTED. 

FN6  GORDON V. UNITED STATES, 347 U.S. 909, RELIED ON BY APPELLEES,
IS NOT TO THE CONTRARY.  THAT CASE HELD MERELY THAT INDIVIDUAL PARTNERS
COULD NOT BE CONVICTED OF "WILLFULLY" VIOLATING THE DEFENSE PRODUCTION
ACT OF 1950 WITHOUT A SHOWING THAT THEY HAD KNOWLEDGE OF THE CRIMINAL
ACTS OF THEIR AGENTS.  CF.  UNITED STATES V. DOTTERWEICH, 320 U.S.
277.  HERE THE GOVERNMENT DOES NOT SEEK TO HOLD THE INDIVIDUAL
PARTNERS, BUT ONLY THE PARTNERSHIPS AS ENTITIES. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
FRANKFURTER, AND MR. JUSTICE WHITTAKER CONCUR, DISSENTING IN PART. 

18 U.S.C. SEC. 835, UNLIKE THE MOTOR CARRIER ACT, HAS NOT EXPLICITLY
SUBJECTED PARTNERSHIPS TO CRIMINAL LIABILITY, AND I DO NOT THINK THAT
SUCH LIABILITY SHOULD BE IMPLIED, FOR WE ARE DEALING WITH A PENAL
STATUTE WHICH SHOULD BE NARROWLY CONSTRUED. 

AS CHIEF JUSTICE MARSHALL WROTE IN UNITED STATES V. WILTBERGER, 5
WHEAT.  76, 95, "THE RULE THAT PENAL LAWS ARE TO BE CONSTRUED STRICTLY,
IS PERHAPS NOT MUCH LESS OLD THAN CONSTRUCTION ITSELF.  IT IS FOUNDED
ON THE TENDERNESS OF THE LAW FOR THE RIGHTS OF INDIVIDUALS; AND ON THE
PLAIN PRINCIPLE THAT THE POWER OF PUNISHMENT IS VESTED IN THE
LEGISLATIVE, NOT IN THE JUDICIAL DEPARTMENT." 

WITH THAT APPROACH WE WOULD NOT ALLOW THIS CRIMINAL SANCTION TO
ATTACH UNDER 18 U.S.C.  SEC. 835.  A CORPORATION IS AN ARTIFICIAL,
LEGALLY CREATED ENTITY THAT CAN HAVE NO "KNOWLEDGE" ITSELF AND IS SAID
TO HAVE "KNOWLEDGE" ONLY THROUGH ITS EMPLOYEES.  ON THE OTHER HAND A
PARTNERSHIP MEANS A, B, AND C - THE INDIVIDUALS WHO COMPOSE IT.  IN
THIS COUNTRY THE ENTITY THEORY HAS NOT IN GENERAL BEEN EXTENDED TO THE
PARTNERSHIP.  JUDGE LEARNED HAND SUMMARIZED THE HISTORY IN HELVERING V.
SMITH, 90 F.2D 590, 591-592.  IF DEAN AMES HAD HAD HIS WAY, THE
MERCANTILE OR ENTITY THEORY OF THE PARTNERSHIP WOULD HAVE PREVAILED. 
BUT THOSE WHO TOOK UP THE DRAFTING OF THE UNIFORM PARTNERSHIP ACT AFTER
HIS DEATH ADHERED TO THE COMMON-LAW ATTITUDE TOWARD A PARTNERSHIP -
THAT IT IS AN AGGREGATION OF INDIVIDUALS.  THAT IS TO SAY, THE ACT
ADOPTED THE AGGREGATE RATHER THAN THE ENTITY THEORY.  AND THAT ACT IS
IN FORCE IN ABOUT THREE-FOURTHS OF THE STATES.  ONE WHO COMBS THE
REPORTS TODAY CAN FIND CASES ESPOUSING THE ENTITY THEORY.  BUT THEY ARE
IN THE MINORITY AND CONSCIOUSLY REJECT THE OTHER THEORY.  AS PROFESSOR
WILLISTON HAS SHOWN, THE MAIN STREAM OF AMERICAN PARTNERSHIP LAW
FOLLOWS THE BRITISH COURSE OF TREATING THE PARTNERSHIP IN THE
PLURALISTIC SENSE.  THE UNIFORM PARTNERSHIP ACT, 63 U. OF PA. L. REV.
196, 208.  WE SHOULD THEREFORE ASSUME THAT THIS CRIMINAL STATUTE,
WRITTEN AGAINST THAT BACKGROUND, REFLECTS THE CONVENTIONAL AGGREGATE,
NOT THE EXCEPTIONAL ENTITY, THEORY OF THE PARTNERSHIP.    WE ARE
DEALING WITH A STATUTE WHERE LIABILITY DEPENDS ON "CULPABLE INTENT," AS
STATED IN BOYCE MOTOR LINES, INC., V. UNITED STATES, 342 U.S. 337,
342.  THE PARTNERS COULD NOT BE HELD CRIMINALLY RESPONSIBLE FOR THE
ACTS OF THEIR EMPLOYEES.  GORDON V. UNITED STATES, 347 U.S. 909.  THE
PARTNERSHIP, BEING NO MORE THAN THE AGGREGATE OF THE PARTNERS, SHOULD
STAND ON THE SAME FOOTING, UNLESS CONGRESS EXPLICITLY PROVIDES
OTHERWISE.  TITLE 1 U.S.C.  SEC. 1 DEFINES "PERSON" IN ANY ACT OF
CONGRESS TO INCLUDE A PARTNERSHIP, "UNLESS THE CONTEXT INDICATES
OTHERWISE."  THE CONTEXT OF 18 U.S.C. SEC. 835 DOES INDICATE OTHERWISE
FOR THE ACT PUNISHES ONLY THOSE WHO KNOWINGLY VIOLATE IT. THE AGGREGATE
THEORY OF PARTNERSHIP LAW TEACHES THAT THERE CAN BE NO VICARIOUS
CRIMINAL LIABILITY WHERE NO PARTNER IS CULPABLE. 

IF THE RULE OF STRICT CONSTRUCTION OF A CRIMINAL STATUTE IS TO
OBTAIN, 18 U.S.C. SEC. 835 MUST BE READ NARROWLY TO REFLECT THE
PREVAILING VIEW OF PARTNERSHIP LAW.  IF THE ENTITY THEORY IS TO BE
APPLIED FOR THE PURPOSE OF IMPOSING CRIMINAL PENALTIES ON PARTNERSHIP
ASSETS, WHERE THE PARTNERS ARE WHOLLY INNOCENT OF ANY WRONGFUL ACT, IT
SHOULD BE DONE ONLY ON THE UNEQUIVOCAL COMMAND OF CONGRESS, AS IS THE
CASE UNDER THE MOTOR CARRIER ACT. 
..END :



UNIVERSAL TRADES, INC. V. PENNSYLVANIA 358 U.S. 129 


NO. 434.  DECIDED DECEMBER 8, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  392 PA. 323, 141 A.2D 204. 


UNIVERSAL TRADES, INC., V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













CILETTI V. WASHINGTON 358 U.S. 130 


NO. 418.  DECIDED DECEMBER 8, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  392 PA. 204, 140 A.2D
98. 


CILETTI ET AL. V. CITY OF WASHINGTON ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, WESTERN DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













SANDERS V. TEXAS 358 U.S. 130 


NO. 214, MISC.  DECIDED DECEMBER 8, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 165 TEX. CR. R. - , 312 S.W.2D
640. 


SANDERS V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













VAN NEWKIRK V. MCNEILL 358 U.S. 131 


NO. 258, MISC.  DECIDED DECEMBER 8, 1958 - APPEAL DISMISSED. 


VAN NEWKIRK V. MCNEILL, SUPERINTENDENT, MATTEAWAN STATE HOSPITAL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :















ULLNER V. OHIO 358 U.S. 131 


NO. 426.  DECIDED DECEMBER 8, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  167 OHIO ST. 521, 150
N.E.2D 413. 


ULLNER V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE STEWART TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :














KIDD V. OHIO 358 U.S. 132 


NO. 465.  DECIDED DECEMBER 8, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  167 OHIO ST. 521, 150
N.E.2D 413. 


KIDD ET AL. V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE STEWART TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :














LOEBER V. CALIFORNIA 358 U.S. 132 


NO. 260, MISC.  DECIDED DECEMBER 8, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 158 CAL. APP. 2D 730, 323 P.2D
136. 


LOEBER V. CALIFORNIA. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :












HAWKINS V. UNITED STATES 358 U.S. 74 


NO. 20.  ARGUED OCTOBER 14, 1958 - DECIDED NOVEMBER 24, 1958 - 249 F.2D
735, REVERSED. 


AT PETITIONER'S TRIAL IN A FEDERAL DISTRICT COURT IN WHICH HE WAS
CONVICTED OF VIOLATING THE MANN ACT, 18 U.S.C. SEC. 2421, BY
TRANSPORTING A GIRL FROM ARKANSAS TO OKLAHOMA FOR IMMORAL PURPOSES, HIS
WIFE WAS PERMITTED TO TESTIFY AGAINST HIM OVER HIS OBJECTION.  HELD:
THOUGH THE WIFE DID NOT OBJECT TO TESTIFYING, ADMISSION OF HER
TESTIMONY OVER HIS OBJECTION WAS ERROR.  PP. 74-81. 

(A)  THOUGH CONGRESS OR THIS COURT, BY DECISION OR UNDER ITS RULE
MAKING POWER, CAN CHANGE OR MODIFY THE RULE WHERE REASON OR EXPERIENCE
DICTATES, AND SOME SPECIFIC EXCEPTIONS HAVE BEEN MADE, THIS COURT IS
NOT NOW PREPARED TO ABANDON SO MUCH OF THE OLD COMMON-LAW RULE AS
FORBADE ONE SPOUSE TO TESTIFY AGAINST THE OTHER OVER THE LATTER'S
OBJECTION.  PP. 75-79. 

(B)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE WIFE'S
TESTIMONY DID NOT HAVE SUBSTANTIAL INFLUENCE ON THE JURY, AND ITS
ADMISSION WAS NOT HARMLESS ERROR.  PP. 79-81. 

HAWKINS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED AND SENTENCED TO FIVE YEARS IMPRISONMENT BY
A UNITED STATES DISTRICT COURT IN OKLAHOMA ON A CHARGE THAT HE VIOLATED
THE MANN ACT, 18 U.S.C. SEC. 2421, BY TRANSPORTING A GIRL FROM ARKANSAS
TO OKLAHOMA FOR IMMORAL PURPOSES.  OVER PETITIONER'S OBJECTION THE
DISTRICT COURT PERMITTED THE GOVERNMENT TO USE HIS WIFE AS A WITNESS
AGAINST HIM.  (FN1)  RELYING ON YODER V. UNITED STATES, 80 F.2D 665,
THE COURT OF APPEALS FOR THE TENTH CIRCUIT HELD THAT THIS WAS NOT
ERROR.   249 F.2D 735.  AS OTHER COURTS OF APPEALS HAVE FOLLOWED A LONG
STANDING RULE OF EVIDENCE WHICH BARS A HUSBAND OR WIFE FROM TESTIFYING
AGAINST HIS OR HER SPOUSE, (FN2) WE GRANTED CERTIORARI.  355 U.S. 925. 

THE COMMON-LAW RULE, ACCEPTED AT AN EARLY DATE AS CONTROLLING IN THIS
COUNTRY, WAS THAT HUSBAND AND WIFE WERE INCOMPETENT AS WITNESSES FOR OR
AGAINST EACH OTHER.  THE RULE RESTED MAINLY ON A DESIRE TO FOSTER PEACE
IN THE FAMILY AND ON A GENERAL UNWILLINGNESS TO USE TESTIMONY OF
WITNESSES TEMPTED BY STRONG SELF-INTEREST TO TESTIFY FALSELY.  SINCE A
DEFENDANT WAS BARRED AS A WITNESS IN HIS OWN BEHALF BECAUSE OF
INTEREST, IT WAS QUITE NATURAL TO BAR HIS SPOUSE IN VIEW OF THE
PREVAILING LEGAL FICTION THAT HUSBAND AND WIFE WERE ONE PERSON.  SEE 1
COKE, COMMENTARY UPON LITTLETON (19TH ED. 1832), 6.B.  THE RULE YIELDED
TO EXCEPTIONS IN CERTAIN TYPES OF CASES, HOWEVER.  THUS, THIS COURT IN
STEIN V. BOWMAN, 13 PET. 209, WHILE RECOGNIZING THE "GENERAL RULE THAT
NEITHER A HUSBAND NOR WIFE CAN BE A WITNESS FOR OR AGAINST THE OTHER,"
NOTED THAT THE RULE DOES NOT APPLY "WHERE THE HUSBAND COMMITS AN
OFFENCE AGAINST THE PERSON OF HIS WIFE."  13 PET., AT 221.  BUT THE
COURT EMPHASIZED THAT NO EXCEPTION LEFT SPOUSES FREE TO TESTIFY FOR OR
AGAINST EACH OTHER MERELY BECAUSE THEY SO DESIRED.  13 PET., AT 223. 
(FN3) 

ASIDE FROM SLIGHT VARIATIONS IN APPLICATION, AND DESPITE MANY
CRITICAL COMMENTS, THE RULE STATED IN STEIN V. BOWMAN WAS FOLLOWED BY
THIS AND OTHER FEDERAL COURTS UNTIL 1933 WHEN THIS COURT DECIDED FUNK
V. UNITED STATES, 290 U.S. 371.  (FN4)  THAT CASE REJECTED THE PHASE OF
THE COMMON-LAW RULE WHICH EXCLUDED TESTIMONY BY SPOUSES FOR EACH
OTHER.  THE COURT RECOGNIZED THAT THE BASIC REASON UNDERLYING THIS
EXCLUSION OF EVIDENCE HAD BEEN THE PRACTICE OF DISQUALIFYING WITNESSES
WITH A PERSONAL INTEREST IN THE OUTCOME OF A CASE.  WIDESPREAD
DISQUALIFICATIONS BECAUSE OF INTEREST, HOWEVER, HAD LONG SINCE BEEN
ABOLISHED BOTH IN THIS COUNTRY AND IN ENGLAND IN ACCORDANCE WITH THE
MODERN TREND WHICH PERMITTED INTERESTED WITNESSES TO TESTIFY AND LEFT
IT FOR THE JURY TO ASSESS THEIR CREDIBILITY.  CERTAINLY, SINCE
DEFENDANTS WERE UNIFORMLY ALLOWED TO TESTIFY IN THEIR OWN BEHALF, THERE
WAS NO LONGER A GOOD REASON TO PREVENT THEM FROM USING THEIR SPOUSES AS
WITNESSES.  WITH THE ORIGINAL REASON FOR BARRING FAVORABLE TESTIMONY OF
SPOUSES GONE THE COURT CONCLUDED THAT THIS ASPECT OF THE OLD RULE
SHOULD GO TOO. 

THE FUNK CASE, HOWEVER, DID NOT CRITICIZE THE PHASE OF THE COMMON-LAW
RULE WHICH ALLOWED EITHER SPOUSE TO EXCLUDE ADVERSE TESTIMONY BY THE
OTHER, BUT LEFT THIS QUESTION OPEN TO FURTHER SCRUTINY.  290 U.S., AT
373; GRIFFIN V. UNITED STATES, 336 U.S. 704, 714-715.  MORE RECENTLY,
CONGRESS HAS CONFIRMED THE AUTHORITY ASSERTED BY THIS COURT IN FUNK TO
DETERMINE ADMISSIBILITY OF EVIDENCE UNDER THE "PRINCIPLES OF THE COMMON
LAW AS THEY MAY BE INTERPRETED  ...  IN THE LIGHT OF REASON AND
EXPERIENCE."  FED. RULES CRIM. PROC., 26.  THE GOVERNMENT DOES NOT HERE
SUGGEST THAT AUTHORITY, REASON OR EXPERIENCE REQUIRES US WHOLLY TO
REJECT THE OLD RULE FORBIDDING ONE SPOUSE TO TESTIFY AGAINST THE
OTHER.  IT DOES ASK THAT WE MODIFY THE RULE SO THAT WHILE A HUSBAND OR
WIFE WILL NOT BE COMPELLED TO TESTIFY AGAINST THE OTHER, EITHER WILL BE
FREE TO DO SO VOLUNTARILY.  NOTHING IN THIS COURT'S CASES SUPPORTS SUCH
A DISTINCTION BETWEEN COMPELLED AND VOLUNTARY TESTIMONY, AND IT WAS
EMPHATICALLY REJECTED IN STEIN V. BOWMAN, SUPRA, A LEADING AMERICAN
STATEMENT OF THE BASIC PRINCIPLES ON WHICH THE RULE RESTS.  13 PET., AT
223.  CONSEQUENTLY, IF WE ARE TO MODIFY THE RULE AS THE GOVERNMENT
URGES, WE MUST LOOK TO EXPERIENCE AND REASON, NOT TO AUTHORITY. 

WHILE THE RULE FORBIDDING TESTIMONY OF ONE SPOUSE FOR THE OTHER WAS
SUPPORTED BY REASONS WHICH TIME AND CHANGING LEGAL PRACTICES HAD
UNDERMINED, WE ARE NOT PREPARED TO SAY THE SAME ABOUT THE RULE BARRING
TESTIMONY OF ONE SPOUSE AGAINST THE OTHER.  THE BASIC REASON THE LAW
HAS REFUSED TO PIT WIFE AGAINST HUSBAND OR HUSBAND AGAINST WIFE IN A
TRIAL WHERE LIFE OR LIBERTY IS AT STAKE WAS A BELIEF THAT SUCH A POLICY
WAS NECESSARY TO FOSTER FAMILY PEACE, NOT ONLY FOR THE BENEFIT OF
HUSBAND, WIFE AND CHILDREN, BUT FOR THE BENEFIT OF THE PUBLIC AS WELL. 
SUCH A BELIEF HAS NEVER BEEN UNREASONABLE AND IS NOT NOW.  MOREOVER, IT
IS DIFFICULT TO SEE HOW FAMILY HARMONY IS LESS DISTURBED BY A WIFE'S
VOLUNTARY TESTIMONY AGAINST HER HUSBAND THAN BY HER COMPELLED
TESTIMONY.  IN TRUTH, IT SEEMS PROBABLE THAT MUCH MORE BITTERNESS WOULD
BE ENGENDERED BY VOLUNTARY TESTIMONY THAN BY THAT WHICH IS COMPELLED. 
BUT THE GOVERNMENT ARGUES THAT THE FACT A HUSBAND OR WIFE TESTIFIES
AGAINST THE OTHER VOLUNTARILY IS STRONG INDICATION THAT THE MARRIAGE IS
ALREADY GONE.  DOUBTLESS THIS IS OFTEN TRUE.  BUT NOT ALL MARITAL FLARE
UPS IN WHICH ONE SPOUSE WANTS TO HURT THE OTHER ARE PERMANENT.  THE
WIDESPREAD SUCCESS ACHIEVED BY COURTS THROUGHOUT THE COUNTRY IN
CONCILIATING FAMILY DIFFERENCES IS A REAL INDICATION THAT SOME
APPARENTLY BROKEN HOMES CAN BE SAVED PROVIDED NO UNFORGIVABLE ACT IS
DONE BY EITHER PARTY.  ADVERSE TESTIMONY GIVEN IN CRIMINAL PROCEEDINGS
WOULD, WE THINK, BE LIKELY TO DESTROY ALMOST ANY MARRIAGE. 

OF COURSE, CASES CAN BE POINTED OUT IN WHICH THIS EXCLUSIONARY RULE
HAS WORKED APPARENT INJUSTICE.   BUT CONGRESS OR THIS COURT, BY
DECISION OR UNDER ITS RULE-MAKING POWER, 18 U.S.C. SEC. 3771, CAN
CHANGE OR MODIFY THE RULE WHERE CIRCUMSTANCES OR FURTHER EXPERIENCE
DICTATES.  IN FACT, SPECIFIC CHANGES HAVE BEEN MADE FROM TIME TO TIME. 
OVER THE YEARS THE RULE HAS EVOLVED FROM THE COMMON-LAW ABSOLUTE
DISQUALIFICATION TO A RULE WHICH BARS THE TESTIMONY OF ONE SPOUSE
AGAINST THE OTHER UNLESS BOTH CONSENT.  SEE STEIN V. BOWMAN, SUPRA;
FUNK V. UNITED STATES, SUPRA; BENSON V. UNITED STATES, 146 U.S. 325,
331-333; UNITED STATES V. MITCHELL, 137 F.2D 1006, 1008.  IN 1887
CONGRESS ENABLED EITHER SPOUSE TO TESTIFY IN PROSECUTIONS AGAINST THE
OTHER FOR BIGAMY, POLYGAMY OR UNLAWFUL COHABITATION.  24 STAT. 635. 
SEE MILES V. UNITED STATES, 103 U.S. 304, 315-316.  SIMILARLY, IN 1917,
AND AGAIN IN 1952, CONGRESS MADE WIVES AND HUSBANDS COMPETENT TO
TESTIFY AGAINST EACH OTHER IN PROSECUTIONS FOR IMPORTING ALIENS FOR
IMMORAL PURPOSES.  39 STAT. 878 (1917), RE-ENACTED AS 66 STAT. 230, 8
U.S.C. SEC. 1328 (1952). 

OTHER JURISDICTIONS HAVE BEEN RELUCTANT TO DO MORE THAN MODIFY THE
RULE.  ENGLISH STATUTES PERMIT SPOUSES TO TESTIFY AGAINST EACH OTHER IN
PROSECUTIONS FOR ONLY CERTAIN TYPES OF CRIMES.  SEE EVIDENCE OF SPOUSES
IN CRIMINAL CASES, 99 SOL.  J. 551.  AND MOST AMERICAN STATES RETAIN
THE RULE, THOUGH MANY PROVIDE EXCEPTIONS IN SOME CLASSES OF CASES. 
(FN5)  THE LIMITED NATURE OF THESE EXCEPTIONS SHOWS THERE IS STILL A
WIDESPREAD BELIEF, GROUNDED ON PRESENT CONDITIONS, THAT THE LAW SHOULD
NOT FORCE OR ENCOURAGE TESTIMONY WHICH MIGHT ALIENATE HUSBAND AND WIFE,
OR FURTHER INFLAME EXISTING DOMESTIC DIFFERENCES.  UNDER THESE
CIRCUMSTANCES WE ARE UNABLE TO SUBSCRIBE TO THE IDEA THAT AN
EXCLUSIONARY RULE BASED ON THE PERSISTENT INSTINCTS OF SEVERAL
CENTURIES SHOULD NOW BE ABANDONED.  AS WE HAVE ALREADY INDICATED,
HOWEVER, THIS DECISION DOES NOT FORECLOSE WHATEVER CHANGES IN THE RULE
MAY EVENTUALLY BE DICTATED BY "REASON AND EXPERIENCE." 

NOTWITHSTANDING THE ERROR IN ADMITTING THE WIFE'S TESTIMONY, WE ARE
URGED TO AFFIRM THE CONVICTION UPON THE ALTERNATIVE HOLDING OF THE
COURT OF APPEALS THAT HER EVIDENCE WAS HARMLESS TO PETITIONER.  SEE
FED. RULES CRIM. PROC., 52(A).  BUT AFTER EXAMINING THE RECORD WE
CANNOT SAY THAT HER TESTIMONY DID NOT HAVE SUBSTANTIAL INFLUENCE ON THE
JURY.  SEE KOTTEAKOS V. UNITED STATES, 328 U.S. 750, 764-765. 
INTERSTATE TRANSPORTATION OF THE PROSECUTRIX BETWEEN ARKANSAS AND
OKLAHOMA WAS CONCEDED, AND THE ONLY FACTUAL ISSUE IN THE CASE WAS
WHETHER PETITIONER'S DOMINANT PURPOSE IN MAKING THE TRIP WAS TO
FACILITATE HER PRACTICE OF PROSTITUTION IN TULSA, OKLAHOMA.  (FN6)  THE
PROSECUTRIX TESTIFIED THAT PETITIONER AGREED TO TAKE HER TO TULSA WHERE
SHE COULD EARN MONEY BY WORKING AS A PROSTITUTE WITH A WOMAN CALLED
"JANE WILSON."  PETITIONER DENIED ANY INTENTION ON HIS PART THAT THE
PROSECUTRIX ENGAGE IN SUCH ACTIVITY AND TESTIFIED, IN EFFECT, THAT HER
TRANSPORTATION WAS ONLY AN ACCOMMODATION INCIDENTAL TO A BUSINESS TRIP
HE WAS MAKING TO OKLAHOMA CITY, OKLAHOMA.  PETITIONER'S DOMINANT
PURPOSE FOR THE TRIP WAS THUS A SHARPLY CONTESTED ISSUE OF FACT WHICH,
ON THE EVIDENCE IN THE RECORD, THE JURY COULD HAVE RESOLVED EITHER WAY
DEPENDING LARGELY ON WHETHER IT BELIEVED THE PROSECUTRIX OR THE
PETITIONER.  THE GOVERNMENT PLACED "JANE WILSON" ON THE STAND.  IN
RESPONSE TO QUESTIONS BY THE ASSISTANT UNITED STATES ATTORNEY SHE SWORE
THAT SHE WAS PETITIONER'S WIFE AND THAT SHE WAS A PROSTITUTE AT THE
TIME PETITIONER TOOK THE PROSECUTRIX TO TULSA.  NOT WHOLLY SATISFIED
WITH THIS TESTIMONY THE PROSECUTOR BROUGHT OUT FOR THE FIRST TIME ON
REDIRECT EXAMINATION THAT "JANE WILSON" HAD BEEN A PROSTITUTE BEFORE
SHE MARRIED PETITIONER.  THE MERE PRESENCE OF A WIFE AS A WITNESS
AGAINST HER HUSBAND IN A CASE OF THIS KIND WOULD MOST LIKELY IMPRESS
JURORS ADVERSELY.  WHEN TO THIS THERE IS ADDED HER SWORN TESTIMONY THAT
SHE WAS A PROSTITUTE BOTH BEFORE AND AFTER MARRIAGE WE CANNOT BE SURE
THAT HER EVIDENCE, THOUGH IN PART CUMULATIVE, DID NOT TIP THE SCALES
AGAINST PETITIONER ON THE CLOSE AND VITAL ISSUE OF WHETHER HIS PRIME
MOTIVATION IN MAKING THE INTERSTATE TRIP WAS IMMORAL.  SEE KRULEWITCH
V. UNITED STATES, 336 U.S. 440, 444-445.  AT LEAST, USE OF THE WIFE'S
TESTIMONY WAS A STRONG SUGGESTION TO THE JURY THAT PETITIONER WAS
PROBABLY THE KIND OF MAN TO WHOM SUCH A PURPOSE WOULD HAVE BEEN
PERFECTLY NATURAL.  REVERSED. 

FN1  WHILE THE WIFE HAD BEEN PLACED UNDER BOND TO APPEAR IN DISTRICT
COURT, SHE OFFERED NO OBJECTION IN COURT TO TESTIFYING AGAINST HER
HUSBAND. 

FN2  SEE, E.G., PAUL V. UNITED STATES, 79 F.2D 561 (C.A. 3D CIR.);
BRUNNER V. UNITED STATES, 168 F.2D 281 (C.A. 6TH CIR.); UNITED STATES
V. WALKER, 176 F.2D 564 (C.A.2D CIR.). 

FN3  STEIN V. BOWMAN WAS A CIVIL ACTION INVOLVING TESTIMONY OF A WIFE
ABOUT CONVERSATIONS SHE HAD WITH HER HUSBAND.  THE OPINION SHOWS,
HOWEVER, THAT THE COURT WAS CONCERNED WITH THE BROADER QUESTION HERE
INVOLVED. 

FN4  SEE, E.G., MILES V. UNITED STATES, 103 U.S. 304; GRAVES V.
UNITED STATES, 150 U.S. 118; JIN FUEY MOY V. UNITED STATES, 254 U.S.
189.  COMPARE BENSON V. UNITED STATES, 146 U.S. 325, 331-333.  FOR
CRITICISM OF THE RULE, SEE 7 BENTHAM, RATIONALE OF JUDICIAL EVIDENCE
(BOWRING ED. 1843), 480-486; 2 WIGMORE, EVIDENCE (3D ED. 1940), SECS.
600-620; 8 ID., SECS. 2227-2245; HUTCHINS AND SLESINGER, SOME
OBSERVATIONS ON THE LAW OF EVIDENCE:  FAMILY RELATIONS, 13 MINN. L.
REV. 675. 

FN5  SEE 2 WIGMORE, EVIDENCE (3D ED. 1940), SEC. 488; 8 ID., SEC.
2240; NOTE, 38 VA. L. REV. 359, 362-367. 

FN6  THE MANN ACT, 18 U.S.C. SEC. 2421, PROVIDES:  "WHOEVER KNOWINGLY
TRANSPORTS IN INTERSTATE OR FOREIGN COMMERCE  ...  ANY WOMAN OR GIRL
FOR THE PURPOSE OF PROSTITUTION OR DEBAUCHERY, OR FOR ANY OTHER IMMORAL
PURPOSE  ...  . 

     *        *         *         *         * 

"SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE
YEARS, OR BOTH." 

IN CONSTRUING THIS ACT, WE HAVE HELD:  "THE STATUTE THUS AIMS TO
PENALIZE ONLY THOSE WHO USE INTERSTATE COMMERCE WITH A VIEW TOWARD
ACCOMPLISHING THE UNLAWFUL PURPOSES  ...  .  AN INTENTION THAT THE
WOMEN OR GIRLS SHALL ENGAGE IN THE CONDUCT OUTLAWED BY SEC. 2 MUST BE
FOUND TO EXIST BEFORE THE CONCLUSION OF THE INTERSTATE JOURNEY AND MUST
BE THE DOMINANT MOTIVE OF SUCH INTERSTATE MOVEMENT.  AND THE
TRANSPORTATION MUST BE DESIGNED TO BRING ABOUT SUCH RESULT.  WITHOUT
THAT NECESSARY INTENTION AND MOTIVATION, IMMORAL CONDUCT DURING OR
FOLLOWING THE JOURNEY IS INSUFFICIENT TO SUBJECT THE TRANSPORTER TO THE
PENALTIES OF THE ACT. 

     *         *         *         *         * 

"  ...  WHAT CONGRESS HAS OUTLAWED BY THE MANN ACT  ...  IS THE USE
OF INTERSTATE COMMERCE AS A CALCULATED MEANS FOR EFFECTUATING SEXUAL
IMMORALITY."  MORTENSEN V. UNITED STATES, 322 U.S. 369, 374-375.  SEE
CLEVELAND V. UNITED STATES, 329 U.S. 14, 19-20.  CF. HANSEN V. HAFF,
291 U.S. 559, 563. 

MR. JUSTICE STEWART, CONCURRING. 

THE RULE OF EVIDENCE WE ARE HERE ASKED TO RE-EXAMINE HAS BEEN CALLED
A "SENTIMENTAL RELIC."  (FN1)  IT WAS BORN OF TWO CONCEPTS LONG SINCE
REJECTED:  THAT A CRIMINAL DEFENDANT WAS INCOMPETENT TO TESTIFY IN HIS
OWN CASE, AND THAT IN LAW HUSBAND AND WIFE WERE ONE.  WHAT THUS BEGAN
AS A DISQUALIFICATION OF EITHER SPOUSE FROM TESTIFYING AT ALL YIELDED
GRADUALLY TO THE POLICY OF ADMITTING ALL RELEVANT EVIDENCE, UNTIL IT
HAS NOW BECOME SIMPLY A PRIVILEGE OF THE CRIMINAL DEFENDANT TO PREVENT
HIS SPOUSE FROM TESTIFYING AGAINST HIM.  COMPARE STEIN V. BOWMAN, 13
PET. 209; WOLFLE V. UNITED STATES, 291 U.S. 7, 14; FUNK V. UNITED
STATES, 290 U.S. 371.  (FN2)    ANY RULE THAT IMPEDES THE DISCOVERY OF
TRUTH IN A COURT OF LAW IMPEDES AS WELL THE DOING OF JUSTICE.  WHEN
SUCH A RULE IS THE PRODUCT OF A CONCEPTUALISM LONG AGO DISCARDED, IS
UNIVERSALLY CRITICIZED BY SCHOLARS, AND HAS BEEN QUALIFIED OR ABANDONED
IN MANY JURISDICTIONS, IT SHOULD RECEIVE THE MOST CAREFUL SCRUTINY. 
(FN3)  SURELY "REASON AND EXPERIENCE" REQUIRE THAT WE DO MORE THAN
INDULGE IN MERE ASSUMPTIONS, PERHAPS NAIVE ASSUMPTIONS, AS TO THE
IMPORTANCE OF THIS ANCIENT RULE TO THE INTERESTS OF DOMESTIC
TRANQUILLITY.  (FN4) 

IN THE PRESENT CASE, HOWEVER, THE GOVERNMENT DOES NOT ARGUE THAT THIS
TESTIMONIAL PRIVILEGE SHOULD BE WHOLLY WITHDRAWN.  WE ARE ASKED ONLY TO
HOLD THAT THE PRIVILEGE IS THAT OF THE WITNESS AND NOT THE ACCUSED. 
UNDER SUCH A RULE THE DEFENDANT IN A CRIMINAL CASE COULD NOT PREVENT
HIS WIFE FROM TESTIFYING AGAINST HIM, BUT SHE COULD NOT BE COMPELLED TO
DO SO. 

A PRIMARY DIFFICULTY WITH THE GOVERNMENT'S CONTENTION IS THAT THIS IS
HARDLY THE CASE IN WHICH TO ADVANCE IT.  A SUPPLEMENTAL RECORD FILED
SUBSEQUENT TO THE ORAL ARGUMENT SHOWS THAT BEFORE "JANE WILSON"
TESTIFIED, SHE HAD BEEN IMPRISONED AS A MATERIAL WITNESS AND RELEASED
UNDER $3,000 BOND CONDITIONED UPON HER APPEARANCE IN COURT AS A WITNESS
FOR THE UNITED STATES.  THESE CIRCUMSTANCES ARE HARDLY CONSISTENT WITH
THE THEORY THAT HER TESTIMONY WAS VOLUNTARY.  MOREOVER, THEY SERVE TO
EMPHASIZE THAT THE RULE ADVANCED BY THE GOVERNMENT WOULD NOT, AS IT
ARGUES, CREATE "A STANDARD WHICH HAS THE GREAT ADVANTAGE OF
SIMPLICITY."  ON THE CONTRARY, SUCH A RULE WOULD BE DIFFICULT TO
ADMINISTER AND EASY TO ABUSE.  SELDOM WOULD IT BE A SIMPLE MATTER TO
DETERMINE WHETHER THE SPOUSE'S TESTIMONY WERE REALLY VOLUNTARY, SINCE
THERE WOULD OFTEN BE WAYS TO COMPEL SUCH TESTIMONY MORE SUBTLE THAN THE
SIMPLE ISSUANCE OF A SUBPOENA, BUT JUST AS COGENT.  UPON THE PRESENT
RECORD, AND AS THE ISSUES HAVE BEEN PRESENTED TO US, I THEREFORE CONCUR
IN THE COURT'S DECISION. 

FN1  SEE COMMENT, RULE 23(2) OF THE UNIFORM RULES OF EVIDENCE. 

FN2  WE ARE NOT DEALING HERE WITH THE QUITE DIFFERENT ASPECT OF THE
MARITAL PRIVILEGE COVERING CONFIDENTIAL COMMUNICATIONS BETWEEN HUSBAND
AND WIFE.  SEE WOLFLE V. UNITED STATES, 291 U.S. 7. 

FN3  APPARENTLY SOME NINETEEN STATES HAVE EITHER ABOLISHED OR
SUBSTANTIALLY MODIFIED THIS PRIVILEGE.  SEE NOTE, 38 VA. L. REV. 359,
365.  IN ENGLAND THE PROCESS HAS BEEN A SELECTIVE ONE, ACCOMPLISHED BY
LEGISLATION.  SEE EVIDENCE OF SPOUSES IN CRIMINAL CASES, 99 SOL.  J.
551.  IN 1938, THE AMERICAN BAR ASSOCIATION'S COMMITTEE ON IMPROVEMENTS
IN THE LAW OF EVIDENCE FAVORED THE ABOLITION OF THE PRIVILEGE ON THE
PART OF THE ACCUSED, 63 A.B.A. REP. 595. 

FN4  THE FACTS IN THE PRESENT CASE ILLUSTRATE HOW UNREALISTIC THE
COURT'S BASIC ASSUMPTION MAY BE.  AT THE TIME OF THE ACTS COMPLAINED OF
THE PETITIONER'S WIFE WAS LIVING APART FROM HIM UNDER AN ASSUMED NAME. 
AT THE TIME SHE TESTIFIED THEY WERE ALSO LIVING APART.  IN HIS
TESTIMONY THE PETITIONER REFERRED TO HER AS HIS "EX-WIFE," EXPLAINING
WHEN HIS COUNSEL CORRECTED HIM THAT HE AND HIS WIFE HAD NEVER LIVED
TOGETHER VERY MUCH. 

BEFORE ASSUMING THAT A CHANGE IN THE PRESENT RULE WOULD WORK SUCH A
WHOLESALE DISRUPTION OF DOMESTIC FELICITY AS THE COURT'S OPINION
IMPLIES, IT WOULD BE HELPFUL TO KNOW THE EXPERIENCE IN THOSE
JURISDICTIONS WHERE THE RULE HAS BEEN ABANDONED OR MODIFIED.  IT WOULD
BE HELPFUL ALSO TO HAVE THE BENEFIT OF THE VIEWS OF THOSE IN THE
FEDERAL SYSTEM MOST QUALIFIED BY ACTUAL EXPERIENCE WITH THE OPERATION
OF THE PRESENT RULE - THE DISTRICT JUDGES AND MEMBERS OF THE PRACTICING
BAR.  THE JUDICIAL CONFERENCES OF THE SEVERAL CIRCUITS WOULD PROVIDE
APPROPRIATE FORUMS FOR IMPARTING THAT KIND OF EXPERIENCE.  28 U.S.C.
SEC. 333. 

IT IS OBVIOUS, HOWEVER, THAT ALL THE DATA NECESSARY FOR AN
INTELLIGENT FORMULATION "IN THE LIGHT OF REASON AND EXPERIENCE" COULD
NEVER BE PROVIDED IN A SINGLE LITIGATED CASE.  THIS POINTS TO THE
WISDOM OF ESTABLISHING A CONTINUING BODY TO STUDY AND RECOMMEND UNIFORM
RULES OF EVIDENCE FOR THE FEDERAL COURTS, AS PROPOSED BY AT LEAST TWO
OF THE CIRCUIT JUDICIAL CONFERENCES.  SEE ANNUAL REPORT OF THE
PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, SEPTEMBER
18-20, 1957, P. 43.  SEE JOINER, UNIFORM RULES OF EVIDENCE FOR THE
FEDERAL COURTS.  20 F.R.D. 429. 
..END :







FEDERAL HOUSING ADMINISTRATION V. THE DARLINGTON, INC. 358 U.S. 84 


NO. 13.  ARGUED OCTOBER 13, 1958 - DECIDED NOVEMBER 24, 1958 - 154 F.
SUPP. 411, REVERSED. 


UNDER SEC. 608 OF THE NATIONAL HOUSING ACT AND THE REGULATIONS
THEREUNDER, APPELLEE IN 1949 OBTAINED FEDERAL HOUSING ADMINISTRATION
INSURANCE OF ITS LOAN TO FINANCE THE CONSTRUCTION OF AN APARTMENT
HOUSE.  BOTH BEFORE AND AFTER ENACTMENT OF THE HOUSING ACT OF 1954,
PROVIDING SPECIFICALLY THAT THE INTENT OF THE NATIONAL HOUSING ACT HAS
BEEN AND IS TO EXCLUDE THE USE OF SUCH HOUSING FOR TRANSIENT OR HOTEL
PURPOSES, APPELLEE RENTED A FEW OF THE APARTMENTS TO TRANSIENTS.  ITS
RIGHT TO DO SO WAS CHALLENGED BY APPELLANT.  APPELLEE SUED FOR A
DECLARATORY JUDGMENT THAT, SO LONG AS IT OPERATES ITS PROPERTY
"PRINCIPALLY" FOR RESIDENTIAL USE, KEEPS APARTMENTS AVAILABLE FOR
EXTENDED TENANCIES, AND COMPLIES WITH THE TERMS OF THE ACT IN EXISTENCE
AT THE TIME IT OBTAINED THE INSURANCE, IT IS ENTITLED TO RENT TO
TRANSIENTS.  HELD: 

1.  THOUGH THERE WAS NO EXPRESS PROVISION ON THE POINT IN THE ACT OR
REGULATIONS WHEN APPELLEE'S MORTGAGE WAS INSURED IN 1949, THE PURPOSE
OF THE ACT, ITS ADMINISTRATIVE CONSTRUCTION, AND THE MEANING WHICH A
LATER CONGRESS ASCRIBED TO IT LEAD TO THE CONCLUSION THAT APPELLEE THEN
HAD NO RIGHT TO RENT TO TRANSIENTS.  PP. 87-90. 

2.  THE 1954 ACT, PROHIBITING RENTAL TO TRANSIENTS BY ANY INSURED
MORTGAGOR OF MULTIFAMILY HOUSING, IS NOT UNCONSTITUTIONAL AS APPLIED TO
A MORTGAGOR WHO OBTAINED INSURANCE BEFORE ITS ENACTMENT.  PP. 90-92. 

FEDERAL HOUSING ADMINISTRATION V. THE DARLINGTON, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF SOUTH CAROLINA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES A CONSTRUCTION OF SEC. 608 OF THE NATIONAL HOUSING
ACT, 56 STAT. 303, 12 U.S.C. SEC. 1743, AS AMENDED BY SEC. 10 OF THE
VETERANS' EMERGENCY HOUSING ACT OF 1946, 60 STAT. 207, 214, AND THE
REGULATIONS ISSUED THEREUNDER.  THE AIM OF THE ACT AS STATED IN SEC.
608(B)(2) IS TO PROVIDE HOUSING FOR VETERANS OF WORLD WAR II AND THEIR
IMMEDIATE FAMILIES.  THAT END IS TO BE ACHIEVED BY AUTHORIZING THE
FEDERAL HOUSING ADMINISTRATION TO INSURE MORTGAGES COVERING THOSE
PROJECTS.  SEC. 608(A).  MORTGAGORS, ELIGIBLE FOR INSURANCE, ARE TO BE
APPROVED BY THE AGENCY, WHICH IS EMPOWERED TO REQUIRE THEM "TO BE
REGULATED OR RESTRICTED AS TO RENTS OR SALES, CHARGES, CAPITAL
STRUCTURE, RATE OF RETURN, AND METHODS OF OPERATION."  SEC. 608(B)(1). 

APPELLEE IS A SOUTH CAROLINA CORPORATION FORMED IN 1949 TO OBTAIN FHA
MORTGAGE INSURANCE FOR AN APARTMENT HOUSE TO BE CONSTRUCTED IN
CHARLESTON.  THE INSURANCE ISSUED AND THE APARTMENT WAS COMPLETED.  THE
REGULATIONS, PROMULGATED UNDER THE ACT (24 CFR SEC. 280 ET SSEQ.),
PROVIDE THAT THE MORTGAGED PROPERTY SHALL BE "DESIGNED PRINCIPALLY FOR
RESIDENTIAL USE, CONFORMING TO STANDARDS SATISFACTORY TO THE
COMMISSIONER, AND CONSISTING OF NOT LESS THAN EIGHT (8) RENTABLE
DWELLING UNITS ON ONE SITE  ...  ."  SEC. 280.34.  THE REGULATIONS
FURTHER PROVIDE: 

"NO CHARGE SHALL BE MADE BY THE MORTGAGOR FOR THE ACCOMMODATIONS
OFFERED BY THE PROJECT IN EXCESS OF A RENTAL SCHEDULE TO BE FILED WITH
THE COMMISSIONER AND APPROVED BY HIM OR HIS DULY CONSTITUTED
REPRESENTATIVE PRIOR TO THE OPENING OF THE PROJECT FOR RENTAL, WHICH
SCHEDULE SHALL BE BASED UPON A MAXIMUM AVERAGE RENTAL FIXED PRIOR TO
THE INSURANCE OF THE MORTGAGE, AND SHALL NOT THEREAFTER BE CHANGED
EXCEPT UPON APPLICATION OF THE MORTGAGOR TO, AND THE WRITTEN APPROVAL
OF THE CHANGE BY, THE COMMISSIONER."  SEC. 280.30(A). 

VETERANS AND THEIR FAMILIES ARE GIVEN PREFERENCE IN THE RENTALS; AND
DISCRIMINATION AGAINST FAMILIES WITH CHILDREN IS PROHIBITED.  SEC.
280.24. 

APPELLEE SUBMITTED TO FHA ITS SCHEDULE OF MONTHLY RATES FOR ITS
DIFFERENT TYPES OF APARTMENTS.  NO SCHEDULE OF RATES FOR TRANSIENTS WAS
SUPPLIED.  INDEED THERE WAS NO REPRESENTATION TO FHA THAT ANY OF THE
APARTMENTS WOULD BE FURNISHED.  BUT AN AFFILIATE OF APPELLEE WITHOUT
FHA KNOWLEDGE FURNISHED A NUMBER OF APARTMENTS; AND SOME WERE LEASED TO
TRANSIENTS ON A DAILY BASIS AT RENTALS NEVER SUBMITTED TO NOR APPROVED
BY FHA, PART OF THE RENTAL GOING TO THE AFFILIATE AS "FURNITURE
RENTAL."  THOUGH APPELLEE, AS REQUIRED BY THE REGULATIONS (SEC.
280.30(F)), MADE REPORTS TO FHA, IT MADE NO DISCLOSURE TO THE AGENCY
THAT IT HAD EITHER FURNISHED SOME APARTMENTS OR RENTED THEM TO
TRANSIENTS.  BUT IT CONTINUED TO RENT FURNISHED APARTMENTS TO
TRANSIENTS BOTH BEFORE AND AFTER 1954 WHEN SEC. 513 WAS ADDED TO THE
ACT.  68 STAT. 610, 12 U.S.C. (SUPP. V) SEC. 1731B.  THE NEW SECTION
CONTAINED IN SUBSECTION (A) THE FOLLOWING DECLARATION OF CONGRESSIONAL
PURPOSE: 

"THE CONGRESS HEREBY DECLARES THAT IT HAS BEEN ITS INTENT SINCE THE
ENACTMENT OF THE NATIONAL HOUSING ACT THAT HOUSING BUILT WITH THE AID
OF MORTGAGES INSURED UNDER THAT ACT IS TO BE USED PRINCIPALLY FOR
RESIDENTIAL USE; AND THAT THIS INTENT EXCLUDES THE USE OF SUCH HOUSING
FOR TRANSIENT OR HOTEL PURPOSES WHILE SUCH INSURANCE ON THE MORTGAGE
REMAINS OUTSTANDING."  AND SEE H.R. REP. NO. 1429, 83D CONG., 2D SESS.,
P. 17; S. REP. NO. 1472, 83D CONG., 2D SESS., P. 31.  (FN1) 

APPELLEE PERSISTED IN ITS RENTAL OF SPACE TO TRANSIENTS.  APPELLANT
FHA PERSISTED IN MAINTAINING THAT THE PRACTICE WAS NOT AUTHORIZED.  IN
1955 APPELLEE BROUGHT THIS SUIT FOR A DECLARATORY JUDGMENT THAT SO LONG
AS IT OPERATES ITS PROPERTY "PRINCIPALLY" FOR RESIDENTIAL USE, KEEPS
APARTMENTS AVAILABLE FOR EXTENDED TENANCIES, AND COMPLIES WITH THE
TERMS OF THE ACT IN EXISTENCE AT THE TIME IT OBTAINED THE INSURANCE, IT
IS ENTITLED TO RENT TO TRANSIENTS.  THE DISTRICT COURT GAVE APPELLEE
SUBSTANTIALLY THE RELIEF WHICH IT DEMANDED.  142 F. SUPP. 341.  ON
APPEAL, WE REMANDED THE CAUSE FOR CONSIDERATION BY A THREE-JUDGE COURT
PURSUANT TO 28 U.S.C. SEC. 2282.  352 U.S. 977.  ON THE REMAND A THREE
JUDGE COURT ADOPTED THE EARLIER FINDINGS AND CONCLUSIONS OF THE SINGLE
JUDGE, 154 F. SUPP. 411, ATTACHING HOWEVER CERTAIN CONDITIONS TO THE
DECREE UNNECESSARY TO DISCUSS HERE.  IT HELD THAT RENTAL TO TRANSIENTS
WAS NOT BARRED BY SEC. 608 AND THAT SEC. 513(A) AS APPLIED TO
RESPONDENT WAS UNCONSTITUTIONAL.  THE CASE IS HERE ON DIRECT APPEAL. 
28 U.S.C. SEC. 1253. 

WE TAKE A DIFFERENT VIEW.  WE DO NOT THINK THE ACT GAVE MORTGAGORS
THE RIGHT TO RENT TO TRANSIENTS.  THERE IS NO EXPRESS PROVISION ONE WAY
OR THE OTHER; BUT THE LIMITATION SEEMS FAIRLY IMPLIED.  WE DEAL WITH
LEGISLATION PASSED TO AID VETERANS AND THEIR FAMILIES, (FN2) NOT WITH A
LAW TO PROMOTE THE HOTEL OR MOTEL BUSINESS.  TO BE SURE, THE
REGULATIONS SPEAK OF PROPERTY "DESIGNED PRINCIPALLY FOR RESIDENTIAL
USE" (SEC. 280.34) - WORDS THAT BY THEMSELVES WOULD NOT PRECLUDE
TRANSIENT RENTALS.  BUT THOSE WORDS, AS THE SENATE REPORT ON THE 1954
AMENDMENT INDICATES, (FN3) WERE EVIDENTLY USED SO AS NOT TO PRECLUDE
SOME COMMERCIAL RENTALS.  MOREOVER, THE REGULATION GOES ON TO DESCRIBE
THE PROPERTY THAT IS INSURED AS "DWELLING UNITS."  ID.  THE WORD
"DWELLING" IN COMMON PARLANCE MEANS A PERMANENT RESIDENCE.  A PERSON
CAN OF COURSE TAKE UP PERMANENT RESIDENCE EVEN IN A MOTEL OR HOTEL. 
BUT THOSE WHO COME FOR A NIGHT OR SO HAVE NOT CHOSEN IT AS A SETTLED
ABODE.  YET THE IDEA OF PERMANENCY PERVADES THE CONCEPT OF "DWELLING." 
THAT WAS THE CONSTRUCTION GIVEN TO SEC. 608 BY FHA IN 1947 WHEN IT
ISSUED ITS BOOK PLANNING RENTAL HOUSING PROJECTS.  "HOUSING" WAS THERE
INTERPRETED TO MEAN "DWELLING QUARTERS FOR FAMILIES - QUARTERS WHICH
OFFER COMPLETE FACILITIES FOR FAMILY LIFE."  THERE AGAIN THE QUALITY OF
PERMANENCY IS IMPLICIT.  (FN4)  AND IF THE PROVISIONS OF APPELLEE'S
CHARTER ARE DEEMED RELEVANT, IT IS NOT WITHOUT INTEREST TO NOTE THE
REQUIREMENT THAT "DWELLING ACCOMMODATIONS OF THE CORPORATION SHALL BE
RENTED AT A MAXIMUM AVERAGE RENTAL PER ROOM PER MONTH  ...  ."  AGAIN
THE FOCUS IS ON PERMANENCY. 

IN 1946 FHA MADE PROVISIONS IN ITS APPLICATION FORMS FOR ESTIMATES OF
ANNUAL OPERATING EXPENSES OF THE PROJECT.  NONE OF THE EXPENSES
INCIDENT TO TRANSIENT ACCOMMODATIONS - SUCH AS LINEN SUPPLY AND
CLEANING EXPENSES - WERE LISTED.  ONCE MORE WE MAY INFER THAT THE
INSURANCE PROGRAM WAS NOT DESIGNED IN AID OF TRANSIENTS. 

IN A LETTER TO FIELD OFFICES IN 1951 EXPLAINING THE CRITERIA TO BE
CONSIDERED IN PASSING ON RENT SCHEDULES AND METHODS OF OPERATION, THE
FHA INSTRUCTED THEM TO:  "  ...  BEAR IN MIND THAT THE OBJECTIVE OF
THIS ADMINISTRATION IS THE PRODUCTION OF HOUSING DESIGNED FOR OCCUPANCY
OF A RELATIVELY PERMANENT NATURE AND THAT TRANSIENT OCCUPANCY IS
CONTRARY TO POLICY.  NO APPROVAL WILL BE GRANTED WITH RESPECT TO A
PROPOSAL ANTICIPATING TRANSIENT OCCUPANCY."  THAT INTERPRETATION OF THE
ACT IS CLEAR AND UNAMBIGUOUS, AND, TAKEN WITH THE REGULATIONS,
INDICATES THAT THE AUTHORITY CHARGED WITH ADMINISTRATION OF THE STATUTE
CONSTRUED IT TO BAR RENTAL TO TRANSIENTS. 

MOREOVER, AS ALREADY MENTIONED, PRIOR APPROVAL BY FHA OF ALL RENTAL
SCHEDULES WAS ALWAYS REQUIRED BY SEC. 280.30 OF THE REGULATIONS AND
APPELLEE NEVER OBTAINED NOR SOUGHT APPROVAL OF A SCHEDULE OF RENTS FOR
TRANSIENTS. 

IT IS TRUE THAT FHA FELT IT HAD THE AUTHORITY TO APPROVE RENTAL
SCHEDULES FOR TRANSIENTS.  IT GAVE SUCH APPROVAL IN A DOZEN OR MORE
INSTANCES WHERE IT FELT THE PUBLIC INTEREST REQUIRED IT.  WE NEED NOT
STOP TO INQUIRE WHETHER FHA HAD THAT AUTHORITY.  (FN5)  WE HAVE SAID
ENOUGH TO INDICATE THAT NO RIGHT OR PRIVILEGE TO RENT TO TRANSIENTS IS
EXPRESSLY INCLUDED IN THE ACT NOR FAIRLY IMPLIED.  THE CONTEMPORANEOUS
CONSTRUCTION OF THE ACT BY THE AGENCY ENTRUSTED WITH ITS ADMINISTRATION
IS SQUARELY TO THE CONTRARY.  IN CIRCUMSTANCES NO MORE AMBIGUOUS THAN
THE PRESENT WE HAVE ALLOWED CONTEMPORANEOUS ADMINISTRATIVE CONSTRUCTION
TO CARRY THE DAY AGAINST DOUBTS THAT MIGHT EXIST FROM A READING OF THE
BARE WORDS OF A STATUTE.  SEE UNITED STATES V. AMERICAN TRUCKING
ASSNS., 310 U.S. 534, 549; NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED
STATES, 288 U.S. 294, 315.  WHEN CONGRESS PASSED THE 1954 AMENDMENT, IT
ACCEPTED THE CONSTRUCTION OF THE PRIOR ACT WHICH BARS RENTALS TO
TRANSIENTS.  SUBSEQUENT LEGISLATION WHICH DECLARES THE INTENT OF AN
EARLIER LAW IS NOT, OF COURSE, CONCLUSIVE IN DETERMINING WHAT THE
PREVIOUS CONGRESS MEANT.  BUT THE LATER LAW IS ENTITLED TO WEIGHT WHEN
IT COMES TO THE PROBLEM OF CONSTRUCTION.  SEE UNITED STATES V. STAFOFF,
260 U.S. 477, 480; SIOUX TRIBE V. UNITED STATES, 316 U.S. 317, 329
330.  THE PURPOSE OF THE ACT, ITS ADMINISTRATIVE CONSTRUCTION, AND THE
MEANING WHICH A LATER CONGRESS ASCRIBED TO IT ALL POINT TO THE
CONCLUSION THAT THE HOUSING BUSINESS TO BE BENEFITED BY FHA INSURANCE
DID NOT INCLUDE RENTAL TO TRANSIENTS. 

IF THE QUESTION BE LESS CLEAR AND FREE FROM DOUBT THAN WE THINK, IT
IS STILL ONE THAT LIES IN THE PERIPHERY WHERE VESTED RIGHTS DO NOT
ATTACH.  IF WE TAKE AS OUR STARTING POINT WHAT THE COURT SAID IN THE
SINKING-FUND CASES, 99 U.S. 700, 718 - "EVERY POSSIBLE PRESUMPTION IS
IN FAVOR OF THE VALIDITY OF A STATUTE, AND THIS CONTINUES UNTIL THE
CONTRARY IS SHOWN BEYOND A RATIONAL DOUBT" - WE DO NOT SEE HOW IT CAN
BE SAID THAT THE 1954 ACT IS UNCONSTITUTIONAL AS APPLIED.  APPELLEE IS
NOT PENALIZED FOR ANYTHING IT DID IN THE PAST.  THE NEW ACT APPLIES
PROSPECTIVELY ONLY.  SO THERE IS NO POSSIBLE DUE PROCESS ISSUE ON THAT
SCORE.  AS STATED IN FLEMING V. RHODES, 331 U.S. 100, 107, "FEDERAL
REGULATION OF FUTURE ACTION BASED UPON RIGHTS PREVIOUSLY ACQUIRED BY
THE PERSON REGULATED IS NOT PROHIBITED BY THE CONSTITUTION.  SO LONG AS
THE CONSTITUTION AUTHORIZES THE SUBSEQUENTLY ENACTED LEGISLATION, THE
FACT THAT ITS PROVISIONS LIMIT OR INTERFERE WITH PREVIOUSLY ACQUIRED
RIGHTS DOES NOT CONDEMN IT.  IMMUNITY FROM FEDERAL REGULATION IS NOT
GAINED THROUGH FOREHANDED CONTRACTS."  (FN6) 

MOREOVER, ONE HAS TO LOOK LONG AND HARD TO FIND EVEN A SEMBLANCE OF A
CONTRACTUAL RIGHT RISING TO THE DIGNITY OF THE ONE INVOLVED IN LYNCH V.
UNITED STATES, 292 U.S. 571.  THE CONSTITUTION IS CONCERNED WITH
PRACTICAL, SUBSTANTIAL RIGHTS, NOT WITH THOSE THAT ARE UNCLEAR AND GAIN
HOLD BY SUBTLE AND INVOLVED REASONING.  CONGRESS BY THE 1954 ACT WAS
DOING NO MORE THAN PROTECTING THE REGULATORY SYSTEM WHICH IT HAD
DESIGNED.  THOSE WHO DO BUSINESS IN THE REGULATED FIELD CANNOT OBJECT
IF THE LEGISLATIVE SCHEME IS BUTTRESSED BY SUBSEQUENT AMENDMENTS TO
ACHIEVE THE LEGISLATIVE END.  CF. VEIX V. SIXTH WARD ASSN., 310 U.S.
32; KEEFE V. CLARK, 322 U.S. 393.  INVOCATION OF THE DUE PROCESS CLAUSE
TO PROTECT THE RIGHTS ASSERTED HERE WOULD MAKE THE GHOST OF LOCHNER V.
NEW YORK, 198 U.S. 45, WALK AGAIN.  REVERSED. 

FN1  THE ACT PROVIDES THAT, EXCEPT FOR CERTAIN EXCEPTIONS NOT
RELEVANT HERE, NO NEW OR EXISTING MULTIFAMILY HOUSING WITH RESPECT TO
WHICH A MORTGAGE IS INSURED BY THE FHA SHALL BE OPERATED FOR TRANSIENT
PURPOSES.  SEC. 513(B).  THE COMMISSIONER IS AUTHORIZED TO DEFINE
"RENTAL FOR TRANSIENT OR HOTEL PURPOSES" BUT IN ANY EVENT RENTAL FOR
ANY PERIOD LESS THAN 30 DAYS CONSTITUTES RENTAL FOR SUCH PURPOSES. 
SEC. 513(E). 

FN2  S. REP. NO. 1130, 79TH CONG., 2D SESS.; H.R. REP. NO. 1580, 79TH
CONG., 2D SESS. 

FN3  S. REP. NO. 1472, 83D CONG., 2D SESS., P. 31, STATES: 

"YOUR COMMITTEE DOES NOT BELIEVE THE SPIRIT OF THIS INTENT IS
VIOLATED BY THE OPERATION OF A COMMERCIAL ESTABLISHMENT INCLUDED TO
SERVE THE NEEDS OF FAMILIES RESIDING IN RENTAL PROJECTS OPERATED AS
PERMANENT RESIDENTIAL HOUSING PROJECTS (AS DISTINGUISHED FROM THOSE
OPERATED TO PROVIDE TRANSIENT ACCOMMODATIONS) BUT IT FIRMLY BELIEVES
THAT THE OPERATION OF SUCH ESTABLISHMENTS SHOULD NOT BE CONDUCTED IN
SUCH A MANNER AS TO CONVERT THE USE OF ALL OR ANY PORTION OF THE
HOUSING UNITS IN THE PROJECT FROM PERMANENT, RESIDENTIAL USE TO A
PROJECT FURNISHING TRANSIENT ACCOMMODATIONS  ...  ."

FN4  THE SAME TONE IS EXHIBITED IN THE COMMITTEE REPORTS ON THE
VARIOUS AMENDMENTS TO SEC. 608.  FOR INSTANCE, IN REPORTING THE
VETERANS' EMERGENCY HOUSING ACT OF 1946 THE SENATE COMMITTEE ON BANKING
AND CURRENCY STATED: 

"SINCE A MAIN PURPOSE OF THESE PROVISIONS (AUTHORIZATIONS OF
ADDITIONAL INSURANCE) IS TO REDUCE THE RISKS ASSUMED BY BUILDERS IN
ORDER TO ENCOURAGE A LARGE VOLUME OF HOUSING, THE COMMITTEE CALLS
SPECIAL ATTENTION TO THE FACT THAT THIS PORTION OF THE BILL PLACES
EMPHASIS UPON RENTAL HOUSING.  IT IS THE SPECIFIC INTENT OF THE
COMMITTEE THAT THOSE IN CHARGE OF THE PROGRAM SHALL MAKE EVERY
REASONABLE EFFORT TO OBTAIN A SUBSTANTIAL VOLUME OF RENTAL HOUSING - OR
IN ANY EVENT HOUSING HELD FOR RENTAL DURING THE EMERGENCY - THROUGH THE
OPERATION OF TITLE VI, BOTH WITH RESPECT TO MULTIFAMILY UNITS AND
INDIVIDUAL UNITS.  WHILE HOME OWNERSHIP IS TO BE ENCOURAGED, A LARGE
PERCENTAGE OF VETERANS DO NOT YET POSSESS THE CERTAINTY OF INCOME OR OF
LOCATION, OR THE FINANCIAL MEANS, TO PURCHASE HOMES AT THIS TIME.  THE
BILL AS APPROVED BY THE HOUSE OF REPRESENTATIVES INCLUDED THIS
ATTENTION TO RENTAL HOUSING."  S. REP. NO. 1130, 79TH CONG., 2D SESS.,
P. 8.    FN5  THE 1954 AMENDMENT EXPRESSLY GAVE FHA THAT POWER IN
CERTAIN LIMITED SITUATIONS.  SEE SEC. 513(B). 

FN6  IN FLEMING A LANDLORD HAD OBTAINED A JUDGMENT OF EVICTION IN A
STATE COURT PRIOR TO THE ENACTMENT OF THE PRICE CONTROL EXTENSION ACT,
UNDER WHICH THE ADMINISTRATOR HAD PROMULGATED RULES PROHIBITING REMOVAL
OF THE TENANTS FROM THE LEASED PREMISES ON THE GROUNDS ASSERTED BY THE
LANDLORD.   IT WAS HELD THAT THE LANDLORD COULD BE ENJOINED FROM
EVICTING THE TENANTS UNDER THE STATE JUDGMENT, AS ANY "VESTED" RIGHTS
BY REASON OF THE STATE JUDGMENT WERE ACQUIRED SUBJECT TO THE
POSSIBILITY OF THEIR DILUTION THROUGH CONGRESS' EXERCISE OF ITS
PARAMOUNT REGULATORY POWER. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

HERE WE HAVE NOT THE APPLICATION OF SOME BROAD, GENERALIZED LEGAL
CONCEPTION, EITHER OF A STATUTORY NATURE, LIKE "RESTRAINT OF TRADE" IN
THE SHERMAN LAW, OR A CONSTITUTIONAL PROVISION, LIKE "DUE PROCESS OF
LAW" OR "THE EQUAL PROTECTION OF THE LAWS."  SUCH CONCEPTIONS DO NOT
CARRY CONTEMPORANEOUS FIXITY.  BY THEIR VERY NATURE THEY IMPLY A
PROCESS OF UNFOLDING CONTENT. 

OUR IMMEDIATE PROBLEM IS QUITE DIFFERENT.  THE PRE-1954 HOUSING ACT
DOES NOT LEAVE US AT LARGE FOR JUDICIAL APPLICATION OF A GENERALIZED
LEGISLATIVE POLICY IN LIGHT OF DEVELOPING CIRCUMSTANCES.  THE PRE-1954
STATUTE DEALS WITH A PARTICULARIZED PROBLEM IN A PARTICULARIZED WAY. 
IT PRESENTS THE USUAL QUESTION OF STATUTORY CONSTRUCTION WHERE LANGUAGE
IS NOT CLEAR ENOUGH TO PRECLUDE HUMAN INGENUITY FROM CREATING
AMBIGUITY.  IT IS OUTSIDE THE JUDICIAL FUNCTION TO ADD TO THE SCOPE OF
LEGISLATION.  THE TASK IS IMAGINATIVELY TO EXTRAPOLATE THE
CONTEMPORANEOUS ANSWER THAT THE LEGISLATURE WOULD HAVE GIVEN TO AN
UNCONSIDERED QUESTION; HERE, WHETHER RENTALS TO TRANSIENTS WERE TOTALLY
PROHIBITED.  IT WAS NOT UNTIL 1954 THAT THE CONGRESS DID DEAL WITH THE
QUESTION OF THE RIGHT OF APARTMENT-HOUSE OWNERS TO RENT EVEN A SMALL
NUMBER OF APARTMENTS TO TRANSIENTS WITHOUT EVEN REMOTELY SEEKING TO
EVADE OR TO DISADVANTAGE THE INTERESTS OF VETERANS IN WHOSE BEHALF THE
GOVERNMENT, THROUGH THE FEDERAL HOUSING ADMINISTRATION, INSURED THE
MORTGAGES OF PRIVATE OWNERS.  THE OPINIONS OF THE DISTRICT COURT AND MY
BROTHER HARLAN SEEM TO ME COMPELLING ON THE CONSTRUCTION OF THE PRE
1954 LEGISLATION. 

THIS BRINGS ME TO THE VALIDITY OF THE 1954 ENACTMENT WHICH PRESENTS
FOR ME A MUCH MORE DIFFICULT QUESTION THAN THAT OF THE PROBLEM OF
STATUTORY CONSTRUCTION JUST CONSIDERED.  THIS IS SO BECAUSE OF THE VERY
WEIGHTY PRESUMPTION OF CONSTITUTIONALITY THAT I DEEM IT ESSENTIAL TO
ATTRIBUTE TO ANY ACT OF CONGRESS.  THIS CASE FALLS BETWEEN SUCH CASES
SUSTAINING THE RETROACTIVE VALIDITY OF LEGISLATION ADVERSELY AFFECTING
AN EXISTING INTEREST AS PARAMINO CO. V. MARSHALL, 309 U.S. 370, AND
FLEMING V. RHODES, 331 U.S. 100, ON THE ONE HAND, AND LYNCH V. UNITED
STATES, 292 U.S. 517, ON THE OTHER.  WHILE, TO BE SURE, DIFFERENTIATION
BETWEEN "REMEDY" AND "RIGHT" TAKES US INTO TREACHEROUS TERRITORY, THE
DIFFERENCE IS NOT MEANINGLESS.  THE TWO EARLIER CASES CITED MAY FAIRLY
BE DEEMED TO SUSTAIN RETROACTIVE REMEDIAL MODIFICATIONS EVEN THOUGH
THEY AFFECT EXISTING "RIGHTS," WHILE THE LYNCH CASE IS A CLEAR INSTANCE
OF THE COMPLETE WIPING OUT OF WHAT MR. JUSTICE BRANDEIS, IN HIS OPINION
FOR THE COURT, CALLED "VESTED RIGHTS."  292 U.S., AT 577.  INSOFAR AS
THE 1954 ACT APPLIED TO THE EARLIER DARLINGTON MORTGAGE, IT DID NOT
COMPLETELY WIPE OUT "VESTED RIGHTS."  BUT ON THE PROPER CONSTRUCTION OF
SEC. 608, IN THE CIRCUMSTANCES FOUND BY THE DISTRICT COURT AND NOT HERE
CHALLENGED, THE UNAVOIDABLE APPLICATION OF THE 1954 ACT TO THE
DARLINGTON MORTGAGE DID SUBSTANTIALLY IMPAIR THE "VESTED RIGHTS" OF
RESPONDENT.  I WOULD BE LESS THAN RESPECTING THE FULL IMPORT OF THE
LYNCH CASE DID I NOT APPLY IT TO THE PRESENT SITUATION. 

ACCORDINGLY, I JOIN MR. JUSTICE HARLAN'S OPINION. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

THE QUESTION IN THIS CASE IS WHETHER APPELLEE DARLINGTON IS ENTITLED
TO RENT TO TRANSIENTS (THAT IS, SO FAR AS THIS CASE IS CONCERNED, FOR
PERIODS OF LESS THAN 30 DAYS) A SMALL NUMBER OF APARTMENTS IN ITS
BUILDING, WHICH IS COVERED BY A MORTGAGE INSURED BY THE FHA. 
DARLINGTON'S FHA MORTGAGE WAS CONSUMMATED AND INSURED IN DECEMBER
1949.  AT THAT TIME NEITHER THE CONTROLLING STATUTE, SEC. 608 OF THE
NATIONAL HOUSING ACT, 56 STAT. 303, AS AMENDED, 12 U.S.C. SEC. 1743,
NOR THE REGULATIONS ISSUED THEREUNDER, 24 CFR SEC. 280 ET SEQ.,
CONTAINED ANY PROVISION PROHIBITING RENTALS TO TRANSIENTS.  SUCH
PROVISIONS ARE FOUND FOR THE FIRST TIME IN SEC. 513 OF THE HOUSING ACT
OF 1954, 68 STAT. 610, 12 U.S.C. (SUPP. V) SEC. 1731B, PASSED SOME FIVE
YEARS AFTER THIS MORTGAGE WAS MADE. 

A THREE-JUDGE DISTRICT COURT, LARGELY ADOPTING THE FINDINGS AND
CONCLUSIONS OF THE SINGLE DISTRICT JUDGE BEFORE WHOM THIS CASE WAS
ORIGINALLY HEARD, HELD THAT AS THE LAW STOOD IN 1949, WHEN THE MORTGAGE
HERE INVOLVED WAS ISSUED, DARLINGTON WAS NOT FORBIDDEN TO MAKE
OCCASIONAL TRANSIENT RENTALS, AND THAT THE FEDERAL HOUSING
ADMINISTRATOR MAY NOT NOW PROHIBIT SUCH RENTALS SINCE THAT WOULD
INVOLVE AN UNCONSTITUTIONAL RETROACTIVE APPLICATION OF THE RELEVANT
PROVISIONS OF THE HOUSING ACT OF 1954.  (FN1)  THIS COURT NOW HOLDS
THAT UNDER THE STATUTE AND REGULATIONS AS THEY STOOD IN 1949 DARLINGTON
WAS NEVER ENTITLED TO MAKE ANY TRANSIENT RENTALS, AND THAT IN ANY EVENT
THE PROHIBITORY PROVISIONS OF THE 1954 ACT MAY BE APPLIED TO PREVENT
SUCH RENTALS.  FROM THESE HOLDINGS I MUST DISSENT. 

IN CONSTRUING THE EARLIER STATUTE THE COURT, IN MY OPINION, HAS
PROCEEDED ON AN ERRONEOUS PREMISE.   THE COURT HOLDS THAT "NO RIGHT OR
PRIVILEGE TO RENT TO TRANSIENTS IS EXPRESSLY INCLUDED IN THE PRE-1954
ACT NOR FAIRLY IMPLIED."  IN MY VIEW, HOWEVER, THE TRUE ISSUE IS NOT
WHETHER THE STATUTE UNDER WHICH DARLINGTON'S MORTGAGE WAS INSURED GAVE
THE RIGHT TO AN FHA-INSURED MORTGAGOR TO MAKE SUCH RENTALS, BUT RATHER
WHETHER IT PROHIBITED SUCH A MORTGAGOR FROM MAKING THEM.  GIVEN THIS AS
THE ISSUE, IT SEEMS TO ME THAT THE RECORD IS COMPELLING AGAINST THE
COURT'S CONCLUSION AS TO SEC. 608, THAT THE PROVISIONS OF THE 1954 ACT
CANNOT BE APPLIED TO ONE IN DARLINGTON'S POSITION, AND THAT THE
DECISION BELOW WAS CLEARLY RIGHT. 

1.  AS ALREADY NOTED, SEC. 608 AND THE REGULATIONS IMPLEMENTING IT
WERE BARREN OF ANY PROVISION EXCLUDING RENTALS TO TRANSIENTS AT THE
TIME DARLINGTON'S MORTGAGE WAS INSURED BY THE FHA. 

2.  THE DISTRICT COURT FOUND THAT (1) DARLINGTON'S RENTALS TO
TRANSIENTS EVEN AT THE HEIGHT OF CHARLESTON'S TRANSIENT SEASON
CONSTITUTED NO MORE THAN TEN PERCENT OF THE BUILDING'S TOTAL AVAILABLE
OCCUPANCY; (2) "NO PERSON ENTITLED TO PRIORITY HAS EVER BEEN REJECTED,
AND NO ONE DESIRING SO-CALLED 'PERMANENT' OCCUPANCY OF AN APARTMENT HAS
BEEN REQUIRED TO WAIT ANY TIME TO OBTAIN SAME"; AND (3) DARLINGTON
"DOES NOT ADVERTISE AS A HOTEL, HAS NO LICENSE AS SUCH, AND NO SIGNS
APPEAR INDICATING ITS WILLINGNESS TO ACCEPT TRANSIENTS."  142 F. SUPP.,
AT 349.  ACCORDING THE UTMOST EFFECT TO THE CONCEDED PURPOSE OF SEC.
608 TO PROVIDE HOUSING FOR WORLD WAR II VETERANS AND THEIR FAMILIES,
AND TO THE RECITALS IN THE REGULATIONS TO THE EFFECT THAT PROPERTY
SUBJECT TO FHA MORTGAGES SHALL BE "DESIGNED PRINCIPALLY FOR RESIDENTIAL
USE", I AM UNABLE TO UNDERSTAND WHY DARLINGTON'S PRACTICES, AS FOUND BY
THE LOWER COURT, SHOULD BE REGARDED AS VIOLATIVE OF EITHER THE LETTER
OR SPIRIT OF THESE STATUTORY OR REGULATORY PROVISIONS.  NOT UNTIL THE
PASSAGE OF THE 1954 ACT DO WE FIND ANY SUGGESTION THAT THE WORDS
"DESIGNED PRINCIPALLY FOR RESIDENTIAL USE" WERE, IN THE LANGUAGE OF THE
COURT, "EVIDENTLY USED SO AS NOT TO PRECLUDE SOME COMMERCIAL (AS
DISTINGUISHED FROM TRANSIENT) RENTALS." 

3.  AS THE FHA CONCEDED AND THE DISTRICT COURT FOUND, NOTHING IN
DARLINGTON'S CHARTER, BYLAWS, MORTGAGE, OR MORTGAGE NOTE, ALL OF WHICH
WERE SUBJECT TO THE FHA'S ADVANCE APPROVAL, EXPRESSLY RESTRICTED ITS
RIGHT "TO LEASE APARTMENTS IN ITS PROJECT FOR PERIODS OF LESS THAN
THIRTY (30) DAYS."   THE ONLY PERIOD OF RENTAL LIMITATION APPEARING IN
ANY OF THESE INSTRUMENTS WAS THE FOLLOWING, CONTAINED IN DARLINGTON'S
CHARTER:  "DWELLING ACCOMMODATIONS OF THE APPELLEE SHALL NOT BE RENTED
FOR A PERIOD IN EXCESS OF THREE YEARS  ...  ."  142 F. SUPP., AT 346. 
IT IS TOO MUCH TO ATTRIBUTE TO THE WORD "DWELLING," AS THE COURT NOW IN
EFFECT DOES, AN IMPLIED PROHIBITION OF LESS-THAN-30-DAYS RENTALS. 

4.  THE FHA HAD IN A NUMBER OF INSTANCES BEFORE 1954 ACTUALLY GIVEN
SPECIFIC APPROVAL TO LESS-THAN-30-DAYS RENTALS BY INSURED MORTGAGORS
WHERE VETERAN DEMAND FOR HOUSING HAD FALLEN OFF, AND WHEN IN 1955
DARLINGTON INQUIRED OF THE FHA THE BASIS OF ITS POSITION THAT LESS-THAN
30-DAYS RENTALS BY SUCH MORTGAGORS WERE NOT PERMISSIBLE THE AGENCY
SIMPLY REFERRED APPELLEE TO THE PROVISIONS OF THE HOUSING ACT OF 1954. 
THESE EVENTS CONCLUSIVELY SHOW THAT THE HOUSING ADMINISTRATION DID NOT
CONSTRUE THE STATUTE OR REGULATIONS BEFORE 1954 TO PROHIBIT TRANSIENT
RENTALS ALTOGETHER. 

5.  THERE IS NOTHING IN THIS RECORD TO INDICATE THAT DARLINGTON WAS
ENGAGED IN ANY KIND OF A SCHEME TO SUBVERT THE PURPOSES OF THIS FEDERAL
HOUSING LEGISLATION.  ITS OCCASIONAL TRANSIENT RENTALS SEEM TO HAVE
BEEN NOTHING MORE THAN AN EFFORT TO PLUG THE GAP IN ITS REVENUES LEFT
BY A FALLING OFF OF THE DEMAND FOR LONG-TERM APARTMENT SPACE, AND DO
NOT DEPICT A SUB ROSA HOTEL OPERATION. 

UPON THESE UNDISPUTED FACTS, WHICH ARE REINFORCED BY OTHER FACTORS
DETAILED IN THE TWO OPINIONS BELOW, I CAN FIND NO BASIS FOR IMPUGNING
THE SOUNDNESS OF THE DISTRICT COURT'S HOLDING THAT UNDER THE LAW AS IT
EXISTED AT THE TIME DARLINGTON EMBARKED UPON THIS PROJECT NOTHING
PROHIBITED IT FROM MAKING THE OCCASIONAL TRANSIENT RENTALS SHOWN BY
THIS RECORD.  THE 1954 ACT WAS NEW, AND NOT MERELY CONFIRMATORY,
LEGISLATION. 

HENCE I CONSIDER THAT THE FHA'S POSITION IN THIS CASE MUST STAND OR
FALL ON WHETHER THE LESS-THAN-30-DAYS RENTAL PROVISION OF THE 1954 ACT,
WHICH IN TERMS APPLIES TO MORTGAGORS INSURED BEFORE AS WELL AS AFTER
THE ACT'S EFFECTIVE DATE (SEE 12 U.S.C. (SUPP. V) SEC. 1731BB)), CAN BE
GIVEN APPLICATION TO DARLINGTON TO INCREASE THE OBLIGATIONS ASSUMED BY
IT UNDER ITS 1949 CONTRACT WITH THE UNITED STATES.  I DO NOT THINK IT
CAN.  AS THE DISTRICT COURT CORRECTLY PUT IT:  "WHEN THE UNITED STATES
ENTERS INTO CONTRACTUAL RELATIONS, ITS RIGHTS AND DUTIES THEREIN ARE
GOVERNED GENERALLY BY THE LAW APPLICABLE TO CONTRACTS BETWEEN PRIVATE
INDIVIDUALS."  142 F. SUPP., AT 351.  SEE LYNCH V. UNITED STATES, 292
U.S. 571; SINKING-FUND CASES, 99 U.S. 700, 718.  WHAT WAS SAID IN THE
LYNCH CASE AS TO CONTRACTS OF WAR-RISK INSURANCE APPLIES HERE:  "AS
CONGRESS HAD THE POWER  ... TO ISSUE THEM, THE DUE PROCESS CLAUSE
PROHIBITS THE UNITED STATES FROM ANNULLING THEM, UNLESS, INDEED, THE
ACTION TAKEN FALLS WITHIN THE FEDERAL POLICE POWER OR SOME OTHER
PARAMOUNT POWER."  292 U.S., AT 579.  I DO NOT UNDERSTAND THE HOUSING
ADMINISTRATION TO CONTEND THAT THE UNITED STATES POSSESSES GENERAL
REGULATORY POWER OVER APPELLEE OUTSIDE THE CONTRACTUAL RELATIONSHIP,
AND THE COURT HAS POINTED TO NO SUCH "PARAMOUNT POWER" BY WHICH THE
IMPOSITION OF THE 1954 ACT'S PROHIBITIONS MIGHT BE JUSTIFIED IN THIS
CASE.  UNDER THESE CIRCUMSTANCES I SEE NO REASON FOR DISREGARDING THE
PRINCIPLES SET FORTH IN THE CASES CITED, PARTICULARLY WHEN THE DISTRICT
COURT WITH AMPLE JUSTIFICATION FOUND THAT "THE 1954 ACT IS DESIGNED TO
AFFORD RELIEF FOR PRIVATE INTERESTS, AS DISTINGUISHED FROM PUBLIC
PURPOSES  ...  ."  142 F. SUPP., AT 353.  (FN2)  INDEED THE COURT'S
TREATMENT OF THIS CASE SEEMS TO REINFORCE MY VIEW ABOUT THE 1954 ACT;
ELSE WHY ALL THIS STRAINING TO BRING THE MATTER UNDER THE PRE-1954
STATUTE? 

I WOULD AFFIRM. 

FN1  THE OPINION OF THE DISTRICT JUDGE WHO FIRST HEARD THIS CASE IS
REPORTED AT 142 F. SUPP. 341.  SUBSEQUENT REFERENCES TO THE DECISION
BELOW ARE TO THAT OPINION. 

THE THREE-JUDGE DISTRICT COURT'S OPINION IS REPORTED AT 154 F. SUPP.
411.  ITS DECREE IMPOSED ON DARLINGTON (PLAINTIFF) THE FOLLOWING
CONDITIONS: 

"(A)  THE PLAINTIFF SHALL NOT LEASE, OR MAKE AVAILABLE FOR LEASING,
FOR TERMS OF LESS THAN THIRTY DAYS MORE THAN 15% OF THE TOTAL NUMBER OF
APARTMENTS IN THE PROJECT. 

"(B)  THE PLAINTIFF SHALL NOT INCREASE ITS SCHEDULE OF RENTS AND
CHARGES NOW IN EFFECT FOR RENTALS OF APARTMENTS FOR LESS THAN THIRTY
DAYS AND FOR FURNISHINGS AND OTHER INCIDENTALS OFFERED OR SUPPLIED IN
CONNECTION THEREWITH. 

"(C)  THE PLAINTIFF SHALL NOT ADVERTISE ITSELF AS A 'HOTEL', NOR
SHALL IT THROUGH THE USE OF ANY ADVERTISING MEDIUM, THE CIRCULATION OF
LETTERS, THE MAINTENANCE OF SIGNS, OR OTHERWISE SOLICIT THE BUSINESS OF
TRANSIENTS FOR LESS THAN THIRTY DAYS OCCUPANCY, OR ADVISE THE GENERAL
PUBLIC OF ITS WILLINGNESS TO PROVIDE ACCOMMODATIONS FOR TRANSIENTS FOR
PERIODS OF LESS THAN THIRTY DAYS OCCUPANCY. 

"(D)  THE PLAINTIFF SHALL NOT PROVIDE OCCUPANTS OF ITS PROJECT WITH
FOOD OR BEVERAGE ROOM SERVICE, OR MAINTAIN REGULAR BELL BOY SERVICE." 

THE DISTRICT COURT RETAINED JURISDICTION OF THE CAUSE FOR THE PURPOSE
OF EFFECTUATING ITS DECREE. 

FN2  THIS FACT IS DEMONSTRATED BY THE RATHER UNUSUAL PROVISION OF THE
1954 ACT WHICH GIVES HOTEL OPERATORS AND OWNERS THE RIGHT TO SEEK
FEDERAL COURT INJUNCTIONS AGAINST VIOLATIONS OF THE TRANSIENT RENTAL
PROHIBITION OF THE STATUTE.  68 STAT. 611, 12 U.S.C. (SUPP. V) SEC.
1731BI).  SEE ALSO THE TESTIMONY OF ARTHUR J. PACKARD AND EARL M.
JOHNSON, RESPECTIVELY CHAIRMAN OF THE BOARD AND TREASURER OF THE
AMERICAN HOTEL ASSOCIATION, BEFORE THE CONGRESSIONAL COMMITTEES
CONSIDERING THE BILLS WHICH BECAME THE HOUSING ACT OF 1954.  HEARINGS
BEFORE THE SENATE COMMITTEE ON BANKING AND CURRENCY, 83D CONG., 2D
SESS., ON S. 2889, S. 2938, S. 2949, PP. 654-661; HEARINGS BEFORE THE
HOUSE COMMITTEE ON BANKING AND CURRENCY, 83D CONG., 2D SESS., ON H.R.
7839, PP. 507-515. 
..END :















HOTEL EMPLOYEES LOCAL NO. 255, HOTEL AND RESTAURANT EMPLOYEES AND
BARTENDERS INTERNATIONAL UNION V. LEEDOM 358 U.S. 99 


NO. 21.  ARGUED NOVEMBER 10, 1958 - DECIDED NOVEMBER 24, 1958 - 101 U.S.
APP. D.C. 414, 249 F.2D 506, REVERSED AND CASE REMANDED. 


DISMISSAL BY THE NATIONAL LABOR RELATIONS BOARD OF PETITIONERS'
REPRESENTATION PETITION, ON THE SOLE GROUND OF THE BOARD'S LONG
ESTABLISHED POLICY OF NOT ASSERTING JURISDICTION OVER THE HOTEL
INDUSTRY AS A CLASS, WAS BEYOND THE BOARD'S POWER. 

HOTEL EMPLOYEES LOCAL NO. 255, HOTEL AND RESTAURANT EMPLOYEES AND
BARTENDERS INTERNATIONAL UNION, ET AL. V. LEEDOM, CHAIRMAN, NATIONAL
LABOR RELATIONS BOARD, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

WE BELIEVE THAT DISMISSAL OF THE REPRESENTATION PETITION ON THE SOLE
GROUND OF THE BOARD'S "LONG STANDING POLICY NOT TO EXERCISE
JURISDICTION OVER THE HOTEL INDUSTRY" AS A CLASS, IS CONTRARY TO THE
PRINCIPLES EXPRESSED IN OFFICE EMPLOYES V. LABOR BOARD, 353 U.S. 313,
318-320 (1957).  THE JUDGMENT IS THEREFORE REVERSED AND THE CASE
REMANDED TO THE COURT OF APPEALS FOR PROCEEDINGS NOT INCONSISTENT
HEREWITH. 
..END :
























EAGLE LION STUDIOS V. LOEW'S INC. 358 U.S. 100 


NO. 17.  ARGUED NOVEMBER 10, 12, 1958 - DECIDED NOVEMBER 24, 1958 - 248
F.2D 438, AFFIRMED BY AN EQUALLY DIVIDED COURT. 


EAGLE LION STUDIOS, INC., ET AL. V. LOEW'S INC. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














SHUTTLESWORTH V. BIRMINGHAM BOARD OF EDUCATION OF JEFFERSON COUNTY,
ALABAMA 358 U.S. 101 


NO. 341.  DECIDED NOVEMBER 24, 1958 - REPORTED BELOW:  162 F. SUPP.
372. 


JUDGMENT AFFIRMED UPON THE LIMITED GROUNDS ON WHICH THE DISTRICT COURT
RESTED ITS DECISION. 

SHUTTLESWORTH ET AL. V. BIRMINGHAM BOARD OF EDUCATION OF JEFFERSON
COUNTY, ALABAMA. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED UPON THE
LIMITED GROUNDS ON WHICH THE DISTRICT COURT RESTED ITS DECISION.  162
F. SUPP. 372, 384. 
..END :









GIVENS V. WEST VIRGINIA 358 U.S. 102 


NO. 22, MISC.  DECIDED NOVEMBER 24, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


GIVENS V. WEST VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BOSTON & MAINE RAILROAD V. UNITED STATES 358 U.S. 68 


NO. 310.  DECIDED NOVEMBER 17, 1958* - 162 F. SUPP. 289, APPEAL
DISMISSED. 

*TOGETHER WITH NO. 322, CHICAGO, BURLINGTON & QUINCY RAILROAD CO. ET
AL. V. BOSTON & MAINE RAILROAD ET AL., ALSO ON APPEAL FROM THE SAME
COURT. 


IN A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
DECLARING THAT PER DIEM RATES CHARGED BY ALL RAILROADS FOR THE RENTAL
OF FREIGHT CARS TO OTHER RAILROADS WERE NOT IN EXCESS OF REASONABLE
COMPENSATION, THE DISTRICT COURT HELD THAT THE COMMISSION HAD
ADJUDICATORY JURISDICTION UNDER SEC. 5(D) OF THE ADMINISTRATIVE
PROCEDURE ACT TO ISSUE SUCH AN ORDER; BUT IT SET ASIDE THE ORDER AND
REMANDED THE MATTER TO THE COMMISSION FOR FURTHER PROCEEDINGS, ON THE
GROUND THAT THE COMMISSION HAD ERRED IN REJECTING, WITHOUT MORE
THOROUGH INVESTIGATION AND MORE DETAILED FINDINGS, ANOTHER METHOD OF
COMPENSATION URGED BY SOME RAILROADS AS BEING MORE EQUITABLE.  HELD: 

1.  THE APPEAL IN NO. 310 PREMATURELY PRESENTED FOR DECISION THE
QUESTION WHETHER THE COMMISSION HAD ADJUDICATORY JURISDICTION TO
DETERMINE A RATE OF UNIFORM APPLICATION THROUGHOUT THE INDUSTRY OR
WHETHER SUCH A RATE COULD BE FIXED ONLY THROUGH THE EXERCISE OF ITS
RULE-MAKING POWER UNDER SEC. 1(14)(A) OF THE INTERSTATE COMMERCE ACT;
AND THE APPEAL IS DISMISSED WITHOUT PREJUDICE TO RAISING THAT ISSUE
AGAIN, IF IT SURVIVES FURTHER COMMISSION PROCEEDINGS.  PP. 69-72. 

BOSTON & MAINE RAILROAD ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THESE CASES CONCERN THE RANGE OF THE INTERSTATE COMMERCE COMMISSION'S
POWER OVER RATES FOR CAR HIRE IN RAILROADING.  BECAUSE THEY
PREDOMINANTLY ORIGINATE FREIGHT, LONG-HAUL TRUNK-LINE RAILROADS OWN
MOST OF THE FREIGHT CARS IN THE INDUSTRY.  SHORT-HAUL TERMINAL
RAILROADS, ON THE OTHER HAND, MAINLY TERMINATE FREIGHT; TO AVOID
NEEDLESS DUPLICATION, THEY HIRE THE CARS OF THE LONG-HAUL ROADS RATHER
THAN REPLACE THEM WITH THEIR OWN.  THE COMPENSATION TO BE PAID FOR USE
OF ANOTHER'S CARS HAS, FOR THE MOST PART, BEEN FIXED BY THE RAILROADS
THEMSELVES, ORIGINALLY IN TERMS OF THE MILEAGE WHICH BORROWED CARS
TRAVELED OVER THE USING ROAD, LATER IN THE FORM OF A FLAT PER DIEM
RATE.  SINCE SEPTEMBER 1, 1947, THE AMOUNT OF THE PER DIEM HAS BEEN
ADJUSTED IN ACCORDANCE WITH AN AGREEMENT PREPARED BY THE ASSOCIATION OF
AMERICAN RAILROADS (AAR).  PRIOR TO THIS LITIGATION, THE RATES SO
ESTABLISHED WERE FOLLOWED BY RAILROADS GENERALLY, SIGNERS AND
NONSIGNERS OF THE AGREEMENT ALIKE. 

IN MARCH 1951 THE NEW YORK, SUSQUEHANNA & WESTERN RAILROAD ANNOUNCED
THAT IT WOULD NO LONGER COMPLY WITH THE THEN APPLICABLE PER DIEM. 
OTHER TERMINAL ROADS SOON FOLLOWED SUIT.  IN RESPONSE, NINETEEN CLASS I
LONG-HAUL ROADS FILED A COMPLAINT WITH THE COMMISSION AGAINST FIVE
SHORT-HAUL ROADS OF THE SAME CLASS AND SIX SHORT-LINE ROADS IN CLASSES
II AND III.  ADDITIONAL ROADS INTERVENING ON ONE SIDE OR THE OTHER
BROUGHT THE TOTAL NUMBER INVOLVED TO JUST OVER ONE HUNDRED. 

THE COMPLAINANTS SPECIFICALLY DECLINED TO INVOKE THE COMMISSION'S
RECOGNIZED RULE-MAKING POWER OVER CAR-HIRE RATES CONFERRED BY SEC.
1(14)(A) OF THE INTERSTATE COMMERCE ACT, 40 STAT. 101, AS AMENDED, 41
STAT. 476, 49 U.S.C. SEC. 1(14)(A).  INSTEAD, THEY ASKED THE COMMISSION
TO DECLARE THAT THE VARIOUS PER DIEMS IN EFFECT SINCE NOVEMBER 1, 1949,
WERE JUST AND REASONABLE AND THAT THE PUBLIC INTEREST REQUIRED UNIFORM
OBSERVANCE OF THOSE RATES BY ALL MEMBERS OF THE INDUSTRY.  RELYING ON
THE POWER TO ISSUE DECLARATORY ORDERS GRANTED BY SEC. 5(D) OF THE
ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 240, 5 U.S.C. SEC. 1004(D), THE
COMMISSION HELD EACH PER DIEM NOT IN EXCESS OF REASONABLE
COMPENSATION.  ACCORDINGLY, IT ENTERED AN ORDER DISCONTINUING THE
PROCEEDING. 

THE TERMINAL ROADS THEN BROUGHT AN ACTION BEFORE A STATUTORY THREE
JUDGE DISTRICT COURT TO HAVE THIS ORDER SET ASIDE.  AS THE COURT BELOW
NOTED, THE EFFECT OF THE COMMISSION'S ACTION WAS "TO REQUIRE THE
RESPONDENT TERMINAL CARRIERS, AND, INDEED, AS A PRACTICAL MATTER ALL
OTHERS, TO PAY THE CHARGES FOR CAR-USE FOUND TO BE REASONABLY
COMPENSATORY  ...  ."  162 F. SUPP. 289, 292-293, N. 4.  THE TERMINAL
ROADS CONTENDED THAT DETERMINATION OF A UNIFORM RATE TO BE APPLIED
THROUGHOUT THE INDUSTRY WAS BEYOND THE COMMISSION'S ADJUDICATORY
JURISDICTION AND LAY EXCLUSIVELY WITHIN ITS SEC. 1(14)(A) RULE-MAKING
POWER. 

THIS CONTENTION, WHICH FORMS THE BASIS OF THE APPEAL IN NO. 310, WAS
REJECTED BY THE DISTRICT COURT, ONE JUDGE DISSENTING.  NONETHELESS,
THAT COURT SET ASIDE THE COMMISSION'S ORDER ON THE MERITS.  IT POINTED
OUT THAT THE COMMISSION HAD ERRED IN CONSIDERING THE REPAIRS,
DEPRECIATION AND "CAR DAY DIVISOR" COMPONENTS OF THE PER DIEM.  BUT IT
RESTED DECISION ON THE COMMISSION'S SUMMARY REJECTION OF AN ALTERNATIVE
METHOD OF COMPENSATION, WHICH WOULD INTRODUCE A MILEAGE FACTOR INTO THE
PER DIEM, ADVOCATED BY CERTAIN OF THE TERMINAL ROADS.  IN THE
COMMISSION'S VIEW, THAT PLAN LIKE THE OTHER "SUGGESTED PLANS FOR
VARYING PER DIEM CHARGES COULD NOT BE PUT INTO EFFECT WITHOUT AN
EXTENSIVE INVESTIGATION EITHER BY THIS COMMISSION OR BY THE A.A.R.  THE
FACTS AND ARGUMENTS HERE PRESENTED ARE NOT PERSUASIVE THAT PLANS OF
THIS KIND ARE DESIRABLE."  297 I.C.C. 291, 296.  THE DISTRICT COURT, ON
THE OTHER HAND, THOUGHT THE MILEAGE FACTOR APPROACH HAD MUCH TO
RECOMMEND IT ON ITS FACE AND RULED: 

"IN ADVANCE OF A MORE THOROUGH STUDY WE DO NOT SEE THE BASIS FOR THE
COMMISSION'S BROAD CONCLUSION THAT THE PLAN IS BOTH IMPRACTICAL AND
UNDESIRABLE.  TO PERFORM OUR FUNCTION IN THE FACE OF THE PERSUASIVE
EVIDENCE THAT THE PLAN IS BOTH DESIRABLE AND FEASIBLE WE MUST HAVE AT
LEAST SOME INKLING OF THE BASIS FOR THE COMMISSION'S GENERAL
CONCLUSIONS TO THE CONTRARY.  IN SHORT WE THINK THE COMMISSION ERRED IN
BRUSHING ASIDE A MATTER OF SUCH IMPORTANCE TO SO MANY VITAL LINKS IN
OUR TRANSPORTATION SYSTEM WITH LITTLE MORE THAN A CASUAL WAVE OF THE
HAND."  162 F. SUPP., AT 298. 

IN ITS MEMORANDUM BEFORE THIS COURT, THE COMMISSION HAS EXPRESSED ITS
READINESS TO "PROCEED IN ACCORDANCE WITH THE TERMS OF THE REMAND."  AS
A RESULT, WE FIND THE QUESTION RAISED BY NO. 310 - WHETHER THE
COMMISSION HAS ADJUDICATORY JURISDICTION TO DETERMINE A RATE OF UNIFORM
APPLICATION THROUGHOUT THE INDUSTRY OR MUST ENGAGE IN WHAT THE DISTRICT
COURT CHARACTERIZED AS THE "FULL SCALE INVESTIGATION" ACCOMPANYING
PROMULGATION OF A RULE UNDER SEC. 1(14)(A) - PREMATURELY PRESENTED FOR
DECISION.  THE COMMISSION HERE RECOGNIZES THAT "FURTHER INVESTIGATION"
AND "MORE DETAILED FINDINGS" WILL BE REQUISITE TO COMPLIANCE WITH THE
DISTRICT COURT'S REMAND.  SHOULD SUCH PROCEEDINGS LEAD THE COMMISSION
TO RECONSIDER ITS ESTIMATE OF THE DESIRABILITY OF A PER DIEM EMBRACING
A MILEAGE FACTOR, THE RESULT MIGHT WELL BE NOT A DECLARATION THAT THE
PRESENT PER DIEM IS JUST AND REASONABLE BUT THE ESTABLISHMENT OF A NEW
RATE.  IF, CONVERSELY, THE COMMISSION ADHERES TO ITS ORIGINAL VIEW, IT
WILL BE IN THE LIGHT OF NEW FINDINGS DERIVED FROM ITS FURTHER
INVESTIGATION.  IN EITHER EVENT, THE PROCEEDINGS ON REMAND MAY LOSE THE
CHARACTERISTICS OF A SEC. 5(D) DECLARATION AND TAKE ON THOSE OF A SEC.
1(14)(A) RULE-MAKING PROCEDURE, THEREBY CAUSING THE QUESTION NOW SOUGHT
TO BE REVIEWED TO DISAPPEAR.  AS THE COMMISSION HAS APPROPRIATELY
OBSERVED, THE RECORD NOW PRESENTS WHAT IS ESSENTIALLY ONLY "AN INTERIM
RULING." 

THESE CONSIDERATIONS LEAD US TO DISMISS THE APPEAL IN NO. 310 WITHOUT
PREJUDICE TO RAISING THE "ADJUDICATORY" ISSUE AGAIN, IF IT SURVIVES THE
FURTHER COMMISSION PROCEEDINGS.  THIS ALSO DISPOSES OF NO. 322, WHICH
IS A CROSS APPEAL BY THE LONG-HAUL ROADS CHALLENGING THE SCOPE OF THE
DISTRICT COURT'S REVIEW.  IT IS SO ORDERED. 
..END :



COULTER V. ANTHONY 358 U.S. 73 


NO. 291.  DECIDED NOVEMBER 17, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  228 ARK. 192, 308 S.W.2D 445. 


COULTER ET AL. V. ANTHONY ET AL. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PEURIFOY V. COMMISSIONER OF INTERNAL REVENUE 358 U.S. 59 


NO. 46.  ARGUED OCTOBER 16, 20, 1958 - DECIDED NOVEMBER 10, 1958 - 254
F.2D 483, AFFIRMED. 


WHEN A CASE ARISING UNDER THE INTERNAL REVENUE LAWS TURNS ON AN ISSUE
OF FACT AND IT APPEARS THAT, IN REVIEWING THE TAX COURT'S FACTUAL
DETERMINATION, THE COURT OF APPEALS HAS MADE A FAIR ASSESSMENT OF THE
RECORD, THIS COURT WILL NOT INTERVENE.  PP. 59-61. 

PEURIFOY ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

PER CURIAM. 

THE PETITIONERS WERE EMPLOYED AS CONSTRUCTION WORKERS AT A SITE IN
KINSTON, NORTH CAROLINA, FOR CONTINUOUS PERIODS OF 20 1/2 MONTHS, 12
1/2 MONTHS, AND 8 1/2 MONTHS, RESPECTIVELY, ENDING IN THE YEAR 1953. 
EACH OF THE PETITIONERS MAINTAINED A PERMANENT RESIDENCE ELSEWHERE IN
NORTH CAROLINA.  IN REPORTING HIS ADJUSTED GROSS INCOME FOR 1953 EACH
PETITIONER DEDUCTED AMOUNTS EXPENDED FOR BOARD AND LODGING AT KINSTON
DURING THE PERIOD OF EMPLOYMENT THERE, AND FOR TRANSPORTATION FROM
KINSTON TO HIS PERMANENT RESIDENCE UPON LEAVING THAT EMPLOYMENT.  THESE
DEDUCTIONS WERE DISALLOWED BY THE RESPONDENT.  ENSUING TAX COURT
PROCEEDINGS RESULTED IN A DECISION IN FAVOR OF THE PETITIONERS.  27
T.C. 149.  THE COURT OF APPEALS REVERSED.  254 F.2D 483.  WE GRANTED
CERTIORARI, 356 U.S. 956, TO CONSIDER CERTAIN QUESTIONS AS TO THE
APPLICATION OF SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE OF 1939*
RAISED BY THE COURSE OF DECISIONS IN THE LOWER COURTS SINCE OUR
DECISION IN COMMISSIONER V. FLOWERS, 326 U.S. 465.  HOWEVER, AS THE
CASE HAS BEEN PRESENTED TO US WE HAVE FOUND IT INAPPROPRIATE TO
CONSIDER SUCH QUESTIONS. 

*"SEC. 23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES. 

"(1)  TRADE OR BUSINESS EXPENSES. 

"(A)  IN GENERAL. 

"ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE
TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS, INCLUDING  ...
TRAVELING EXPENSES (INCLUDING THE ENTIRE AMOUNT EXPENDED FOR MEALS AND
LODGING) WHILE AWAY FROM HOME IN THE PURSUIT OF A TRADE OR BUSINESS;
...  ."  26 U.S.C. (1952 ED.)  SEC.  23(A)(1)(A). 

THE ISSUE IS WHETHER THE AMOUNTS IN QUESTION CONSTITUTED ALLOWABLE
DEDUCTIONS UNDER SEC. 23(A)(1)(A).  GENERALLY, A TAXPAYER IS ENTITLED
TO DEDUCT UNREIMBURSED TRAVEL EXPENSES UNDER THIS SUBSECTION ONLY WHEN
THEY ARE REQUIRED BY "THE EXIGENCIES OF BUSINESS."  COMMISSIONER V.
FLOWERS, SUPRA.  APPLICATION OF THIS GENERAL RULE WOULD REQUIRE
AFFIRMANCE OF THE JUDGMENT OF THE COURT OF APPEALS IN THE PRESENT
CASE. 

TO THIS RULE, HOWEVER, THE TAX COURT HAS ENGRAFTED AN EXCEPTION WHICH
ALLOWS A DEDUCTION FOR EXPENDITURES OF THE TYPE MADE IN THIS CASE WHEN
THE TAXPAYER'S EMPLOYMENT IS "TEMPORARY" AS CONTRASTED WITH
"INDEFINITE" OR "INDETERMINATE."  COMPARE SCHURER V. COMMISSIONER, 3
T.C. 544; LEACH V. COMMISSIONER, 12 T.C. 20; ALBERT V. COMMISSIONER, 13
T.C. 129, WITH WARREN V. COMMISSIONER, 13 T.C. 205; WHITAKER V.
COMMISSIONER, 24 T.C. 750.  THE RESPONDENT DOES NOT IN THE PRESENT CASE
CHALLENGE THE VALIDITY OF THIS EXCEPTION TO THE GENERAL RULE. 

RESOLUTION OF THIS CASE AS PRESENTED TO US TURNS, THEREFORE, UPON A
NARROW QUESTION OF FACT - WAS THE PETITIONERS' EMPLOYMENT "TEMPORARY"
OR "INDEFINITE"?  THE TAX COURT, STATING THAT "EACH CASE MUST BE
DECIDED UPON THE BASIS OF ITS OWN FACTS AND CIRCUMSTANCES," 27 T.C., AT
157, FOUND THAT THEIR EMPLOYMENT WAS TEMPORARY.  THE COURT OF APPEALS,
ALSO RECOGNIZING THAT THE QUESTION WAS "ONE OF FACT," HELD THAT ON THE
RECORD THE TAX COURT'S FINDING OF TEMPORARY EMPLOYMENT WAS "CLEARLY
ERRONEOUS."  254 F.2D, AT 487. 

IN REVIEWING THE TAX COURT'S FACTUAL DETERMINATION, THE COURT OF
APPEALS HAS MADE A FAIR ASSESSMENT OF THE RECORD.  26 U.S.C. (SUPP. V)
SEC. 7482; RULE 52(A), FED. RULES CIV. PROC.; CF. UNIVERSAL CAMERA
CORP. V. LABOR BOARD, 340 U.S. 474.  THAT BEING SO, THIS COURT WILL NOT
INTERVENE.  FEDERAL TRADE COMMISSION V. STANDARD OIL CO., 355 U.S. 396,
400-401; LABOR BOARD V. PITTSBURGH S.S. CO., 340 U.S. 498, 502-503. 
AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
WHITTAKER CONCUR, DISSENTING. 

AS COMMISSIONER OF INTERNAL REVENUE V. FLOWERS (FN1) INDICATED, THE
PREREQUISITES TO A DEDUCTION FOR TRAVEL EXPENSES UNDER SEC. 23(A)(1)(A)
(FN2) ARE THREEFOLD:  THE EXPENSES MUST BE REASONABLE AND NECESSARY,
(FN3) THEY MUST BE INCURRED WHILE "AWAY FROM HOME," AND THERE MUST BE A
"DIRECT CONNECTION BETWEEN THE EXPENDITURE AND THE CARRYING ON OF THE
TRADE OR BUSINESS OF THE TAXPAYER OR OF HIS EMPLOYER."  326 U.S., AT
470.  I THINK THE TAXPAYERS IN THIS CASE HAVE MET THOSE CONDITIONS AND
SHOULD BE ALLOWED THE CLAIMED DEDUCTIONS. 

THE MEANING OF "HOME" WAS EXPRESSLY LEFT UNDECIDED IN FLOWERS BUT IS
SQUARELY PRESENTED IN THE INSTANT CASE.  (FN4)  I DISAGREE WITH THE
COMMISSIONER'S CONTENTION THAT "HOME" IS SYNONYMOUS WITH THE SITUS OF
THE EMPLOYER'S BUSINESS.  SUCH A CONSTRUCTION MEANS THAT THE TAXPAYER
WHO IS FORCED TO TRAVEL FROM PLACE TO PLACE TO PURSUE HIS TRADE MUST
CARRY HIS HOME ON HIS BACK REGARDLESS OF THE FACT THAT HE MAINTAINS HIS
FAMILY AT AN ABODE WHICH MEETS ALL ACCEPTED DEFINITIONS OF "HOME."  I
DO NOT BELIEVE THAT CONGRESS INTENDED SUCH A HARSH RESULT WHEN IT
PROVIDED A DEDUCTION FOR TRAVELING EXPENSES.  THESE CONSTRUCTION
WORKERS DO NOT HAVE A PERMANENT LOCUS OF EMPLOYMENT AS DOES THE
MERCHANT OR FACTORY WORKER.  THEY ARE REQUIRED TO TRAVEL FROM JOB TO
JOB IN ORDER TO PRACTICE THEIR TRADE.  IT WOULD BE AN INTOLERABLE
BURDEN FOR THEM TO UPROOT THEIR FAMILIES WHENEVER THEY CHANGE JOBS, IF
THOSE JOBS HAPPEN TO TAKE THEM TO A DIFFERENT LOCALITY.  WHEN THEY DO
NOT UNDERTAKE THIS BURDEN THEY ARE LIVING "AWAY FROM HOME" (FN5) FOR
THE DURATION OF THE TERM OF THE JOBS.  (FN6) 

WE HAVE, THEN, NOT A QUESTION OF FACT WHICH SHOULD BE RESOLVED BELOW
RATHER THAN HERE.  WE HAVE A MIXED QUESTION OF LAW AND FACT.  THE FACTS
WILL TURN LARGELY ON THE RESOLUTION OF THE QUESTION OF LAW.  THE ERROR
BELOW WAS MAINLY IN ASSUMING (ALBEIT SILENTLY) A NARROW CONSTRUCTION OF
THE STATUTORY TERM "HOME." 

FN1  326 U.S. 465. 

FN2  SEC. 162(A)(2) OF THE 1954 INTERNAL REVENUE CODE, 26 U.S.C.
(SUPP. V) SEC. 162(A)(2). 

FN3  THERE IS NO CONTENTION MADE THAT THE EXPENSES HERE WERE NOT
REASONABLE AND NECESSARY. 

FN4  THE COURT'S OPINION DOES NOT REACH THIS QUESTION BECAUSE IT
DECIDES THE CASE ON A GROUND NOT RAISED BY THE RESPONDENT.  SEE NOTE 6,
INFRA.  INSTEAD IT AFFIRMS THE COURT OF APPEALS DECISION AS RELYING ON
A FACTUAL DETERMINATION.  THE COURT OF APPEALS REVERSED THE TAX COURT
BECAUSE IT THOUGHT THE LATTER TRIBUNAL HAD UNWARRANTEDLY EXTENDED THE
"EXCEPTION" TO THE FLOWERS CASE FOR EXPENSES WHILE "TEMPORARILY" AWAY
FROM HOME.  BOTH COURTS AGREED THAT TAXPAYERS WERE AWAY FROM THEIR
ACTUAL HOMES, BUT THE COURT OF APPEALS THOUGHT THE ABSENCE OF SUCH
DURATION PRECLUDED A DEDUCTION.  NOWHERE IN THE STATUTE OR IN FLOWERS
IS A DISTINCTION MADE BETWEEN "TEMPORARY" AND "INDEFINITE" ABSENCES
FROM HOME, AND IN FACT SUCH A DISTINCTION IMPROPERLY EMPHASIZES
DURATION OF THE ABSENCE AS THE DETERMINATIVE FACTOR IN DECIDING WHERE
THE TAXPAYER'S "HOME" ACTUALLY IS. 

FN5  THIS DEFINITION OF "HOME" WILL NOT PERMIT ANY TAXPAYER WHO LIVES
APART FROM HIS FAMILY TO DEDUCT HIS MAINTENANCE EXPENSES, NO MATTER
WHAT THE NATURE OF HIS TRADE OR HIS EMPLOYER'S BUSINESS.  IF THE
EXPENSES ARE NECESSARY AND APPROPRIATE TO NEITHER THE EMPLOYER'S
BUSINESS NOR THE EMPLOYEE'S TRADE, THEY ARE PERSONAL EXPENSES UNDER
SEC. 24(A)(1)(SEC.  262 OF THE 1954 INTERNAL REVENUE CODE).  AND OF
COURSE THE FACTS MAY SHOW THAT A TAXPAYER HAS IN FACT ABANDONED HIS
ORIGINAL "HOME" AS HIS PRINCIPAL PLACE OF RESIDENCE. 

FN6  THE FLOWERS CASE DOES NOT HOLD, AS THE COURT SUGGESTS, THAT THE
DEDUCTION IS NECESSARILY UNAVAILABLE IF NOT REQUIRED BY THE EXIGENCIES
OF THE EMPLOYER'S BUSINESS.  IN THAT CASE A TRAVELING EXPENSE DEDUCTION
WAS DENIED A LAWYER EMPLOYED BY A RAILROAD WHO CHOSE TO MAINTAIN HIS
HOME IN JACKSON, MISSISSIPPI, ALTHOUGH, AS THE COURT FOUND, THE
PERMANENT PLACE OF HIS BUSINESS WAS IN MOBILE, ALABAMA.  THE COURT HELD
THE EXPENSES OF TRAVELING BETWEEN JACKSON AND MOBILE WERE NOT
APPROPRIATE OR NECESSARY TO THE RAILROAD'S BUSINESS.  IN THE PRESENT
CASE, HOWEVER, THE EXPENSES INCURRED WERE NECESSARY, NOT TO THE
BUSINESS OF THE CONTRACTOR FOR WHOM THE TAXPAYERS WORKED, BUT FOR THE
TAXPAYERS THEMSELVES IN ORDER TO CARRY ON THEIR CHOSEN TRADE.  FLOWERS
DID NOT DECIDE THAT, BECAUSE EXPENSES ARE NOT REQUIRED BY THE
EMPLOYER'S BUSINESS, THEY CAN NEVER BE JUSTIFIED AS NECESSARY TO THE
EMPLOYEE'S TRADE.  THE GOVERNMENT DOES NOT HERE CONTEND THAT THE
EXPENSES WERE NONDEDUCTIBLE BECAUSE INAPPROPRIATE TO THE TRADE OR
BUSINESS OF THE EMPLOYER, THE GROUND OF DECISION IN FLOWERS.  SUCH A
CONTENTION WAS NOT ASSIGNED AS A REASON FOR DISALLOWANCE OF THE
DEDUCTION NOR PRESENTED TO THE COURTS BELOW. 
..END :














CALIFORNIA V. WASHINGTON 358 U.S. 64 


NO. 12, ORIGINAL.  ARGUED OCTOBER 15-16, 1958 - DECIDED NOVEMBER 10,
1958 - MOTION FOR LEAVE TO FILE BILL OF COMPLAINT DENIED. 


CALIFORNIA V. WASHINGTON. 

ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE BILL OF COMPLAINT IS DENIED.  U.S.
CONST., AMEND. XXI, SEC. 2; INDIANAPOLIS BREWING CO. V. LIQUOR CONTROL
COMMISSION, 305 U.S. 391; JOSEPH S. FINCH & CO. V. MCKITTRICK, 305 U.S.
395; MAHONEY V. JOSEPH TRINER CORP., 304 U.S. 401; STATE BOARD OF
CALIFORNIA V. YOUNG'S MARKET CO., 299 U.S. 59. 
..END :














HINKLE V. NEW ENGLAND MUTUAL INSURANCE COMPANY OF BOSTON, MASSACHUSETTS
358 U.S. 65 


NO. 28.  ARGUED OCTOBER 15, 1958 - DECIDED NOVEMBER 10, 1958 - WRIT OF
CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED - REPORTED BELOW:  248
F.2D 879. 


HINKLE, ADMINISTRATRIX, ET AL. V. NEW ENGLAND MUTUAL INSURANCE COMPANY
OF BOSTON, MASSACHUSETTS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

PER CURIAM. 

THE WRIT OF CERTIORARI IN THIS CASE IS DISMISSED AS IMPROVIDENTLY
GRANTED.  SEE LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, 261 U.S. 387;
ESTATE OF SPIEGEL V. COMMISSIONER OF INTERNAL REVENUE, 335 U.S. 701,
707-708; GENERAL BOX CO. V. UNITED STATES, 351 U.S. 159, 165. 
..END :











UNITED STATES V. HULLEY 358 U.S. 66 


NO. 300.  DECIDED NOVEMBER 10, 1958 - CERTIORARI GRANTED; JUDGMENT
REVERSED; AND CASE REMANDED.  - REPORTED BELOW:  102 SO. 2D 599. 


UNITED STATES V. HULLEY ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IN THIS CASE IS GRANTED AND
JUDGMENT REVERSED AND REMANDED TO THE SUPREME COURT OF FLORIDA.  SEE
UNITED STATES V. SECURITY TRUST & SAVINGS BANK, 340 U.S. 47; UNITED
STATES V. GILBERT ASSOCIATES, 345 U.S. 361; UNITED STATES V. NEW
BRITAIN, 347 U.S. 81; UNITED STATES V. ACRI, 348 U.S. 211; UNITED
STATES V. LIVERPOOL & LONDON INS. CO., 348 U.S. 215; UNITED STATES V.
SCOVIL, 348 U.S. 218; UNITED STATES V. COLOTTA, 350 U.S. 808; UNITED
STATES V. WHITE BEAR BREWING CO., 350 U.S. 1010; UNITED STATES V.
VORREITER, 355 U.S. 15. 
..END :










GULFPORT FARM & PASTURE CO. V. HANCOCK BANK 358 U.S. 67 


NO. 390.  DECIDED NOVEMBER 10, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 232 MISS.  289, 98 SO. 2D 862. 


GULFPORT FARM & PASTURE CO. V. HANCOCK BANK. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















LATHAM V. ECKLE 358 U.S. 67 


NO. 190, MISC.  DECIDED NOVEMBER 10, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 168 OHIO ST. 14, 150 N.E.2D 857. 


LATHAM V. ECKLE, SUPERINTENDENT, LONDON PRISON FARM. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














WORZ V. FEDERAL COMMUNICATIONS COMMISSION 358 U.S. 55 


NO. 349.  DECIDED OCTOBER 27, 1958 - CERTIORARI GRANTED - REPORTED
BELOW:  103 U.S. APP. D.C. 195, 257 F.2D 199. 


IN VIEW OF REPRESENTATIONS OF THE SOLICITOR GENERAL CONCERNING
TESTIMONY GIVEN BEFORE A CONGRESSIONAL INVESTIGATING COMMITTEE AFTER
THE DECISION OF THE COURT OF APPEALS, JUDGMENT VACATED AND CAUSE
REMANDED TO THAT COURT FOR SUCH ACTION AS IT MAY DEEM APPROPRIATE. 

WORZ, INC., V. FEDERAL COMMUNICATIONS COMMISSION ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  IN VIEW OF THE
REPRESENTATIONS IN THE SOLICITOR GENERAL'S BRIEF ON PAGES 4 AND 5,
CONCERNING TESTIMONY GIVEN BEFORE THE SUBCOMMITTEE ON LEGISLATIVE
OVERSIGHT OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
SUBSEQUENT TO THE DECISION BY THE COURT OF APPEALS IN THIS CASE, THE
JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO
THE COURT OF APPEALS FOR SUCH ACTION AS IT MAY DEEM APPROPRIATE. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT.  THE MATTERS
REFERRED TO BY THE COURT WERE NOT PRESENTED IN THE COURT OF APPEALS AND
ARE NOT PRESENTED BY THIS PETITION.  AGREEING WITH THE SOLICITOR
GENERAL THAT DENIAL OF THE PETITION FOR WRIT OF CERTIORARI WOULD NOT
FORECLOSE APPROPRIATE CONSIDERATION THEREOF BY THE COURT OF APPEALS, WE
SEE NO REASON FOR VACATING THE COURT OF APPEALS' JUDGMENT AND,
THEREFORE, DISSENT FROM THIS DISPOSITION OF THE MATTER BY THE COURT. 
..END :



















FELLOM V. REDEVELOPMENT AGENCY OF THE CITY AND COUNTY OF SAN FRANCISCO
358 U.S. 56 


NO. 323.  DECIDED OCTOBER 27, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  157 CAL. APP. 2D 243,
320 P.2D 884. 


FELLOM ET AL. V. REDEVELOPMENT AGENCY OF THE CITY AND COUNTY OF SAN
FRANCISCO ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :













DEEN V. HICKMAN 358 U.S. 57 


NO. 133, MISC.  DECIDED OCTOBER 27, 1958 - REPORTED BELOW:  SEE - TEX. -
, 312 S.W.2D 933. 


IN A CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
TEXAS SUPREME COURT ENTERED A JUDGMENT WHICH WAS FORECLOSED BY AN
EARLIER DECISION OF THIS COURT IN THE SAME CASE.  HELD:  LEAVE TO FILE
A PETITION FOR WRIT OF MANDAMUS TO REQUIRE THE TEXAS SUPREME COURT TO
CONFORM ITS DECISION TO THE MANDATE OF THIS COURT IS GRANTED; BUT THE
WRIT IS NOT ISSUED, BECAUSE IT IS ASSUMED THAT THE TEXAS SUPREME COURT
WILL CONFORM TO THIS DECISION. 

DEEN V. HICKMAN, CHIEF JUSTICE, SUPREME COURT OF TEXAS, ET AL. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS. 

PER CURIAM. 

IN DEEN V. GULF, COLORADO & SANTA FE R. CO., 353 U.S. 925, THIS
COURT, HAVING HELD "THAT THE PROOFS JUSTIFIED WITH REASON THE JURY'S
CONCLUSION THAT EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING THE
PETITIONER'S INJURY," REVERSED THE JUDGMENT OF THE TEXAS COURT OF CIVIL
APPEALS.  ON REMAND, THAT COURT HELD THAT THE QUESTION OF NEGLIGENCE
WAS FORECLOSED BY THIS COURT'S DECISION AND AFFIRMED A JUDGMENT IN
FAVOR OF THE PETITIONER ON CONDITION THAT PETITIONER ACCEPT A
REMITTITUR.  ON REVIEW, THE TEXAS SUPREME COURT REMANDED THE CASE TO
THE COURT OF CIVIL APPEALS "WITH DIRECTIONS ...  TO ADJUDICATE, UPON
ITS OWN INDEPENDENT EVALUATION OF THE EVIDENCE AND WHOLLY APART FROM
THE JUDGMENT OF THE SUPREME COURT OF THE UNITED STATES, WHETHER OR NOT
THE JURY FINDING OF NEGLIGENCE OF THE DEFENDANT  ...  IS SO AGAINST THE
WEIGHT AND PREPONDERANCE OF THE EVIDENCE AS TO REQUIRE A NEW TRIAL IN
THE INTEREST OF JUSTICE, AND, UPON THE BASIS OF ITS SAID ADJUDICATION,
TO EITHER AFFIRM THE JUDGMENT OF THE TRIAL COURT OR GRANT A NEW
TRIAL."  THE DETERMINATION OF THAT ISSUE WAS FORECLOSED BY DEEN V.
GULF, COLORADO & SANTA FE R. CO., SUPRA.  THE MOTION FOR LEAVE TO FILE
A PETITION REQUESTING THIS COURT TO MANDAMUS THE TEXAS SUPREME COURT TO
CONFORM ITS DECISION TO OUR MANDATE IN THAT CASE IS GRANTED.  ASSUMING
AS WE DO THAT THE SUPREME COURT OF TEXAS WILL OF COURSE CONFORM TO THE
DISPOSITION WE NOW MAKE, WE DO NOT ISSUE THE WRIT OF MANDAMUS. 

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :








FONK V. YORKVILLE 358 U.S. 58 


NO. 332.  DECIDED OCTOBER 27, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  3 WIS. 2D 371, 88
N.W.2D 319. 


FONK ET AL. V. TOWN OF YORKVILLE. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















SANGAMON VALLEY TELEVISION CORP. V. UNITED STATES 358 U.S. 49 


NO. 235.  DECIDED OCTOBER 20, 1958 - CERTIORARI GRANTED - REPORTED
BELOW:  103 U.S. APP. D.C. 113, 255 F.2D 191. 


IN VIEW OF REPRESENTATIONS OF THE SOLICITOR GENERAL CONCERNING
TESTIMONY GIVEN BEFORE A CONGRESSIONAL INVESTIGATING COMMITTEE AFTER
THE DECISION OF THE COURT OF APPEALS, JUDGMENT VACATED AND CAUSE
REMANDED TO THAT COURT FOR SUCH ACTION AS IT MAY DEEM APPROPRIATE. 

SANGAMON VALLEY TELEVISION CORP. V. UNITED STATES ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  IN VIEW OF THE
REPRESENTATIONS IN THE SOLICITOR GENERAL'S BRIEF ON PAGES 7 AND 8,
CONCERNING TESTIMONY GIVEN BEFORE THE SUBCOMMITTEE OF LEGISLATIVE
OVERSIGHT OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
SUBSEQUENT TO THE DECISION BY THE COURT OF APPEALS IN THIS CASE, THE
JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO
THE COURT OF APPEALS FOR SUCH ACTION AS IT MAY DEEM APPROPRIATE. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT IN THE ABOVE CASES.*
THE MATTERS REFERRED TO BY THE COURT WERE NOT PRESENTED IN THE COURT
OF APPEALS AND ARE NOT PRESENTED BY THESE PETITIONS.  AGREEING WITH THE
SOLICITOR GENERAL THAT DENIAL OF THE PETITIONS FOR WRITS OF CERTIORARI
WOULD NOT FORECLOSE APPROPRIATE CONSIDERATION THEREOF BY THE COURT OF
APPEALS, WE SEE NO REASON FOR VACATING THE COURT OF APPEALS' JUDGMENTS
AND, THEREFORE, DISSENT FROM THIS DISPOSITION OF THE MATTER BY THE
COURT. 

*NOTE:  THIS DISSENT APPLIES ALSO TO NO. 242, WIRL TELEVISION CORP.
V. UNITED STATES ET AL., POST, P. 51. 
..END :















WIRL TELEVISION V. UNITED STATES 358 U.S. 51 


NO. 242.  DECIDED OCTOBER 20, 1958 - CERTIORARI GRANTED - REPORTED
BELOW:  102 U.S. APP. D.C. 341, 253 F.2D 863. 


JUDGMENT VACATED AND CASE REMANDED TO COURT OF APPEALS FOR APPROPRIATE
ACTION IN THE LIGHT OF THE MATTER CALLED TO THIS COURT'S ATTENTION IN
NO. 235, SANGAMON VALLEY TELEVISION CORP. V. UNITED STATES ET AL.,
ANTE, P. 49, BY THE SOLICITOR GENERAL. 

WIRL TELEVISION CORP. V. UNITED STATES ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THE COURT OF
APPEALS FOR APPROPRIATE ACTION IN THE LIGHT OF THE MATTER CALLED TO
THIS COURT'S ATTENTION ON PAGE 7 OF THE SOLICITOR GENERAL'S BRIEF IN
NO. 235, SANGAMON VALLEY TELEVISION CORP. V. UNITED STATES ET AL.,
ANTE, P. 49. 

FOR DISSENT OF MR. JUSTICE CLARK AND MR. JUSTICE HARLAN, SEE ANTE, P.
50. 
..END :



KOVRAK V. GINSBURG, MEMBERS OF THE COMMITTEE ON UNAUTHORIZED PRACTICE OF
THE LAW 358 U.S. 52 


NO. 266.  DECIDED OCTOBER 20, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  392 PA. 143, 139 A.2D
889. 


KOVRAK V. GINSBURG ET AL., MEMBERS OF THE COMMITTEE ON UNAUTHORIZED
PRACTICE OF THE LAW. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














BOSTON FIVE CENTS SAVINGS BANK V. CITY OF NEW BEDFORD 358 U.S. 53 


NO. 273.  DECIDED OCTOBER 20, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  SEE 336 MASS. 651, 148
N.E.2D 637. 


BOSTON FIVE CENTS SAVINGS BANK ET AL. V. CITY OF NEW BEDFORD. 

APPEAL FROM THE SUPERIOR COURT OF MASSACHUSETTS, BRISTOL COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















GRAHAM-WHITE SALES CORP. V. PRIME MANUFACTURING CO. 358 U.S. 53 


NO. 297.  DECIDED OCTOBER 20, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  3 WIS. 2D 156, 87
N.W.2D 788. 


GRAHAM-WHITE SALES CORP. ET AL. V. PRIME MANUFACTURING CO. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















NEW ORLEANS CITY PARK IMPROVEMENT ASSOCIATION V. DETIEGE 358 U.S. 54 


NO. 295.  DECIDED OCTOBER 20, 1958 - 252 F.2D 122, AFFIRMED. 


NEW ORLEANS CITY PARK IMPROVEMENT ASSOCIATION V. DETIEGE ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 
..END :


















MOUNTS V. WEST VIRGINIA 358 U.S. 54 


NO. 125, MISC.  DECIDED OCTOBER 20, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


MOUNTS V. WEST VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















MOORE V. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS 358 U.S. 31 


NO. 208.  DECIDED OCTOBER 13, 1958 - 312 S.W.2D 769, REVERSED AND CASE
REMANDED. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, HELD:
THE PROOFS JUSTIFIED WITH REASON THE JURY'S CONCLUSION THAT EMPLOYER
NEGLIGENCE PLAYED A PART IN PRODUCING PETITIONER'S INJURY.  THEREFORE,
CERTIORARI IS GRANTED, THE JUDGMENT IS REVERSED AND THE CASE IS
REMANDED. 

MOORE V. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
SUPREME COURT OF MISSOURI IS REVERSED AND THE CASE IS REMANDED FOR
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  WE HOLD THAT THE PROOFS
JUSTIFIED WITH REASON THE JURY'S CONCLUSION THAT EMPLOYER NEGLIGENCE
PLAYED A PART IN PRODUCING THE PETITIONER'S INJURY.  ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500; WEBB V. ILLINOIS CENTRAL R. CO., 352 U.S.
512; SHAW V. ATLANTIC COAST LINE R. CO., 353 U.S. 920; FUTRELLE V.
ATLANTIC COAST LINE R. CO., 353 U.S. 920; DEEN V. GULF, C.&S.F.R. CO.,
353 U.S. 925; THOMSON V. TEXAS & PACIFIC R. CO., 353 U.S. 926; ARNOLD
V. PANHANDLE & S.F.R. CO., 353 U.S. 360; RINGHISER V. CHESAPEAKE & O.R.
CO., 354 U.S. 901; MCBRIDE V. TOLEDO TERMINAL R. CO., 354 U.S. 517;
GIBSON V. THOMPSON, 355 U.S. 18; HONEYCUTT V. WABASH R. CO., 355 U.S.
424; FERGUSON V. ST. LOUIS-SAN FRANCISCO R. CO., 356 U.S. 41. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT FOR THE REASONS GIVEN IN HIS
MEMORANDUM IN GIBSON V. THOMPSON, 355 U.S. 18, 19.  SEE ALSO HIS
DISSENTING OPINION IN SINKLER V. MISSOURI PACIFIC R. CO., 356 U.S. 326,
332. 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI WAS IMPROVIDENTLY GRANTED. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE BURTON JOINS,
DISSENTING.   IN MY VIEW THE RECORD DOES NOT CONTAIN ANY EVIDENCE OF
NEGLIGENCE BY RESPONDENT, BUT INSTEAD IT AFFIRMATIVELY SHOWS THAT THE
SOLE CAUSE OF PETITIONER'S INJURY WAS HIS OWN NEGLIGENT ACT.  HENCE, I
THINK THE SUPREME COURT OF MISSOURI WAS RIGHT IN HOLDING THAT THERE WAS
NOTHING TO SUBMIT TO A JURY. 

THE UNDISPUTED FACTS, PRINCIPALLY PHYSICAL FACTS, ARE THESE. 
RESPONDENT'S TRACKS RUN IN PAIRS TO THE SOUTH FROM A POINT JUST OUTSIDE
THE WAITING ROOM OF ITS UNION STATION IN ST. LOUIS.  BETWEEN EACH PAIR
OF TRACKS IS A CONCRETE LOADING PLATFORM DESIGNED FOR THE USE OF
PASSENGERS IN WALKING, AND OF RESPONDENT'S EMPLOYEES IN TRANSPORTING
BAGGAGE, TO AND FROM TRAINS.  THE PLATFORM BETWEEN TRACKS NUMBERED 4
AND 5 IS THE SCENE OF THIS OCCURRENCE.  IT IS ABOUT 18 INCHES HIGH, 14
FEET 1 3/8 INCHES WIDE AND 1,800 FEET LONG.  IT IS UNDER A ROOF
SUPPORTED BY METAL POSTS 14 INCHES IN DIAMETER LOCATED DOWN THE CENTER
OF THE PLATFORM AT 30-FOOT INTERVALS.  AT THE TIME OF THIS OCCURRENCE A
TRAIN WAS STANDING ON TRACK 4 ABUTTING THE WEST SIDE OF THE PLATFORM,
AND AN INCOMING TRAIN WAS BEING BACKED NORTH TOWARD THE WAITING ROOM
ALONG THE EAST SIDE OF THE PLATFORM ON TRACK 5.  PETITIONER, WHO WAS
EMPLOYED BY RESPONDENT AS A BAGGAGE HANDLER, WAS ON THIS PLATFORM FOR
THE PURPOSE OF TRANSPORTING BAGGAGE FROM THE INCOMING TRAIN.  HE WAS
USING A HAND CART, REFERRED TO IN THE EVIDENCE AS A "FLAT WAGON," WHICH
WAS 14 FEET 8 INCHES LONG (INCLUDING THE HANDLEBARS AT EITHER END), 3
FEET 8 INCHES WIDE, AND SUPPORTED IN THE CENTER BY AN AXLE RIDING ON
TWO 26-INCH WHEELS, OPERATING BOTH AS A FULCRUM AND A PIVOT.  BEING
SOME DISTANCE SOUTH OF THE POINT AT WHICH THE BAGGAGE CAR WAS TO BE
STOPPED FOR UNLOADING, PETITIONER STARTED PULLING HIS CART TO THE NORTH
ALONG THE EAST SIDE OF THE PLATFORM AND ADJACENT TO THE MOVING TRAIN. 
AFTER SO PROCEEDING A SHORT WAY, HE OBSERVED A 4-WHEEL WAGON STANDING
ON THE EAST SIDE OF THE PLATFORM, SLIGHTLY NORTH AND EAST OF ONE OF THE
ROOF SUPPORTS, MAKING IT NECESSARY FOR HIM TO TURN HIS CART TO THE LEFT
AND TO PASS ON THE WEST HALF OF THE PLATFORM.  AT THAT TIME ANOTHER
HAND CART, A FEW FEET TO THE LEFT AND AHEAD OF HIM, WAS ALSO BEING
MOVED TO THE NORTH OVER THE WEST HALF OF THE PLATFORM.  IN CHANGING THE
COURSE OF HIS CART, PETITIONER PULLED ITS NORTH END TO THE WEST AT SUCH
AN ANGLE AS CAUSED ITS SOUTH END TO BE PIVOTED AND SWUNG TO THE EAST
AGAINST THE THIRD CAR OF THE MOVING TRAIN WHICH, IN TURN, CAUSED HIM TO
BE THROWN TO THE WEST AGAINST A CAR STANDING ON TRACK 4 AND TO BE
INJURED.  OTHER WAGONS WERE ON THE PLATFORM BUT WERE EITHER SOME
DISTANCE BEHIND OR AHEAD OF PETITIONER AND HAD NO CONNECTION WITH THIS
OCCURRENCE. 

IT CANNOT BE, AND IS NOT, DENIED THAT THE CASUALTY RESULTED SOLELY
FROM THE COLLISION OF THE CART WITH THE MOVING TRAIN.  WHAT CAUSED THIS
TO HAPPEN?  PETITIONER ADMITS THAT IT WAS THE TURN OF THE CART THAT DID
SO.  HE ALSO ADMITS THAT THE TURN WAS MADE BY HIS OWN HAND.  HOW THEN
MAY IT BE SAID THAT ANY ACT OF RESPONDENT CAUSED OR CONTRIBUTED TO
CAUSE THE SOUTH END OF THE CART TO COLLIDE WITH THE MOVING TRAIN? 
PETITIONER ATTEMPTS TO ATTRIBUTE HIS CONDUCT IN SOME WAY TO THE
PRESENCE OF THE OTHER HAND CART WHICH WAS BEING PULLED TO THE NORTH A
FEW FEET AHEAD AND TO THE WEST OF HIM, SAYING THAT EXCEPT FOR ITS
PRESENCE HE "COULD HAVE MADE THAT TURN EASY."  YET HE ADMITS NOT ONLY
THAT THERE WAS NO CONTACT BETWEEN THAT CART AND HIS, BUT ALSO THAT IT
WAS MOVING AHEAD AND AWAY FROM HIM.  SURELY THE PRESENCE OF THAT MOVING
CART AT THAT PLACE DID NOT CONSTITUTE NEGLIGENCE.  DO NOT THESE
ADMITTED AND INDISPUTED PHYSICAL FACTS SHOW THAT THE CASUALTY WAS NOT
ONE "RESULTING IN WHOLE OR IN PART FROM THE NEGLIGENCE OF" RESPONDENT? 
DO THEY NOT SHOW THAT THE CASUALTY WAS ONE "RESULTING IN WHOLE" FROM
THE NEGLIGENCE OF PETITIONER?  THE FEDERAL EMPLOYERS' LIABILITY ACT
DOES NOT CREATE LIABILITY WITHOUT FAULT.  LIABILITY UNDER THE ACT IS
PREDICATED ON BOTH NEGLIGENCE AND CAUSATION.  BY THE PLAIN WORDS OF
SEC. 1 OF THE ACT A RAILROAD IS MADE LIABLE FOR INJURIES TO ITS
EMPLOYEES "RESULTING IN WHOLE OR IN PART FROM ITS NEGLIGENCE."  53 STAT
1404, 45 U.S.C. SEC. 51.  "THE ACT DOES NOT MAKE THE EMPLOYER THE
INSURER OF THE SAFETY OF HIS EMPLOYEES WHILE THEY ARE ON DUTY.  THE
BASIS OF HIS LIABILITY IS HIS NEGLIGENCE, NOT THE FACT THAT INJURIES
OCCUR.  AND THAT NEGLIGENCE MUST BE 'IN WHOLE OR IN PART' THE CAUSE OF
THE INJURY."  ELLIS V. UNION PACIFIC R. CO., 329 U.S. 649, 653.  I
SUBMIT THAT THE SIMPLE FACTS RECITED DO NOT SHOW EVEN A "SCINTILLA" OR
AN "IOTA" OF EVIDENCE, TO SAY NOTHING OF ANY SUBSTANTIAL EVIDENCE, OF
NEGLIGENCE BY RESPONDENT.  INSTEAD, I INSIST, THEY AFFIRMATIVELY SHOW
THAT IT WAS PETITIONER'S OWN ACT IN TURNING THE CART AT SUCH AN ANGLE
AS BROUGHT ITS SOUTH END INTO COLLISION WITH THE MOVING TRAIN THAT WAS
EXCLUSIVELY "THE CAUSE OF THE INJURY."  IBID. 

TO HOLD THAT THESE FACTS ARE SUFFICIENT TO MAKE A JURY CASE OF
NEGLIGENCE UNDER THE ACT IS IN PRACTICAL EFFECT TO SAY THAT A RAILROAD
IS AN INSURER OF ITS EMPLOYEES.  SUCH IS NOT THE LAW.  FOR THESE
REASONS I DISSENT. 
..END :



















ODD FELLOWS OAKRIDGE CEMETERY ASSOCIATION V. OAKRIDGE CEMETERY CORP. 358
U.S. 36 


NO. 98.  DECIDED OCTOBER 13, 1958* - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  14 ILL. APP. 2D 378,
144 N.E.2D 853. 

*TOGETHER WITH NO. 99, ODD FELLOWS OAKRIDGE CEMETERY ASSOCIATION ET
AL. V. OAKRIDGE CEMETERY CORP. ET AL., ON APPEAL FROM THE SUPREME COURT
OF ILLINOIS. 


ODD FELLOWS OAKRIDGE CEMETERY ASSOCIATION ET AL. V. OAKRIDGE CEMETERY
CORP. ET AL. 

APPEAL FROM THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEALS ARE DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :










PERMIAN BASIN PIPELINE V. RAILROAD COMMISSION OF TEXAS 358 U.S. 37 


NO. 64.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 302 S.W.2D 238. 


PERMIAN BASIN PIPELINE CO. V. RAILROAD COMMISSION OF TEXAS ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, THIRD SUPREME
JUDICIAL DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :












UNITED STATES V. NATIONAL MALLEABLE & STEEL CASTINGS 358 U.S. 38 


NO. 160.  DECIDED OCTOBER 13, 1958 - AFFIRMED. 


UNITED STATES V. NATIONAL MALLEABLE & STEEL CASTINGS CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 

MR. JUSTICE BURTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












STEINBECK V. GEROSA 358 U.S. 39 


NO. 294.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  4 N.Y.2D 302, 151
N.E.2D 170. 


STEINBECK V. GEROSA, COMPTROLLER OF NEW YORK CITY, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE BLACK IS OF THE OPINION THAT PROBABLE JURISDICTION SHOULD
BE NOTED. 
..END :













NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. COMMITTEE
ON OFFENSES AGAINST THE ADMINISTRATION OF JUSTICE 358 U.S. 40 


NO. 84.  DECIDED OCTOBER 13, 1958 - CERTIORARI GRANTED - REPORTED BELOW:
199 VA. 665, 101 S.E.2D 631. 


IN VIEW OF REPRESENTATIONS OF THE ATTORNEY GENERAL OF VIRGINIA THAT
CAUSE HAS BECOME MOOT, JUDGMENT VACATED AND CAUSE REMANDED. 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., ET AL.
V. COMMITTEE ON OFFENSES AGAINST THE ADMINISTRATION OF JUSTICE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  IN VIEW OF THE
REPRESENTATIONS OF THE ATTORNEY GENERAL OF VIRGINIA THAT THE CAUSE HAS
BECOME MOOT, THE JUDGMENT OF THE SUPREME COURT OF APPEALS OF VIRGINIA
IS VACATED AND THE CAUSE IS REMANDED FOR SUCH FURTHER PROCEEDINGS AS
THAT COURT MAY DEEM APPROPRIATE. 
..END :







SCHON V. SCHON 358 U.S. 41 


NO. 33, MISC.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 99 SO. 2D 302. 


SCHON V. SCHON, EXECUTOR. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO ADD THE STATE OF FLORIDA AS A PARTY APPELLEE IS
DENIED.  THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE
APPEAL WAS TAKEN AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS
DENIED. 
..END :















KITCHENS V. UNITED STATES 358 U.S. 42 


NO. 31, MISC.  DECIDED OCTOBER 13, 1958 - CERTIORARI GRANTED. 


JUDGMENT VACATED AND CAUSE REMANDED FOR CONSIDERATION IN LIGHT OF
ELLIS V. UNITED STATES, 356 U.S. 674. 

KITCHENS ET UX. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT IS VACATED AND THE CASE IS
REMANDED FOR CONSIDERATION IN LIGHT OF ELLIS V. UNITED STATES, 356 U.S.
674. 
..END :










GEORGE F. ALGER CO. V. BOWERS 358 U.S. 43 


NO. 65.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  166 OHIO ST. 427, 143
N.E.2D 835. 


GEO. F. ALGER CO. V. BOWERS, TAX COMMISSIONER OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















WESTLAKE HOSPITAL ASSOCIATION V. BLIX 358 U.S. 43 


NO. 184.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  13 ILL. 2D 183, 148
N.E.2D 471. 


WESTLAKE HOSPITAL ASSOCIATION ET AL. V. BLIX ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















LINDER V. COLLINS, BOARD OF COUNTY COMMISSIONERS OF WALLACE COUNTY,
KANSAS 358 U.S. 44 


NO. 86.  DECIDED OCTOBER 13, 1958 - AFFIRMED. 


LINDER V. COLLINS ET AL., MEMBERS OF THE BOARD OF COUNTY COMMISSIONERS
OF WALLACE COUNTY, KANSAS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :
















PENNSYLVANIA RAILROAD CO. V. BOROUGH OF SAYREVILLE 358 U.S. 44 


NO. 179.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  26 N.J. 197, 139 A.2D
97. 


PENNSYLVANIA RAILROAD CO. V. BOROUGH OF SAYREVILLE ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















DYE V. OHIO 358 U.S. 45 


NO. 151.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


DYE V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















SHIPPERS' CAR SUPPLY COMMITTEE V. INTERSTATE COMMERCE COMMISSION 358
U.S. 45 


NO. 141.  DECIDED OCTOBER 13, 1958 - 160 F. SUPP. 939, AFFIRMED. 


SHIPPERS' CAR SUPPLY COMMITTEE V. INTERSTATE COMMERCE COMMISSION ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















UNITED STATES STEEL CORP. V. WASHINGTON 358 U.S. 46 


NO. 163.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  51 WASH. 2D 224, 316
P.2D 1099. 


UNITED STATES STEEL CORP. V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE BRIEF OF BERKSHIRE HATHAWAY, INC., AS
AMICUS CURIAE, IS DENIED.  THE MOTION TO DISMISS IS GRANTED AND THE
APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















WALTERS V. CONNECTICUT 358 U.S. 46 


NO. 35, MISC.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 145 CONN. 60, 138 A.2D 786. 


WALTERS V. CONNECTICUT. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















MARANZE V. MONTGOMERY COUNTY BOARD OF ELECTIONS 358 U.S. 47 


NO. 144, MISC.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 167 OHIO ST. 323, 148 N.E.2D 229. 


MARANZE V. MONTGOMERY COUNTY BOARD OF ELECTIONS ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















GROCHOWIAK V. PENNSYLVANIA 358 U.S. 47 


NO. 166.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  184 PA. SUPER.  522,
136 A.2D 145. 


GROCHOWIAK V. PENNSYLVANIA. 

APPEAL FROM THE SUPERIOR COURT OF PENNSYLVANIA, PHILADELPHIA
DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE DOUGLAS IS OF THE OPINION THAT PROBABLE JURISDICTION
SHOULD BE NOTED. 
..END :












GRANIERI V. CALIFORNIA 358 U.S. 48 


NO. 117, MISC.  DECIDED OCTOBER 13, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED. 


GRANIERI V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















UNITED STATES, FARNSWORTH V. MURPHY 358 U.S. 48 


NO. 82, MISC.  DECIDED OCTOBER 13, 1958 - CERTIORARI GRANTED - JUDGMENT
VACATED AND CASE REMANDED TO DISTRICT COURT FOR A HEARING - REPORTED
BELOW:  254 F.2D 438. 


UNITED STATES EX REL. FARNSWORTH V. MURPHY, WARDEN, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT IS VACATED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR A HEARING. 
..END :













COOPER, MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS,
INDEPENDENT SCHOOL DISTRICT V. AARON 358 U.S. 1 


NO. 1.  ARGUED SEPTEMBER 11, 1958 - DECIDED SEPTEMBER 12, 1958 - OPINION
ANNOUNCED SEPTEMBER 29, 1958 - 257 F.2D 33, AFFIRMED. 


UNDER A PLAN OF GRADUAL DESEGREGATION OF THE RACES IN THE PUBLIC
SCHOOLS OF LITTLE ROCK, ARKANSAS, ADOPTED BY PETITIONERS AND APPROVED
BY THE COURTS BELOW, RESPONDENTS, NEGRO CHILDREN, WERE ORDERED ADMITTED
TO A PREVIOUSLY ALL-WHITE HIGH SCHOOL AT THE BEGINNING OF THE 1957-1958
SCHOOL YEAR.  DUE TO ACTIONS BY THE LEGISLATURE AND GOVERNOR OF THE
STATE OPPOSING DESEGREGATION, AND TO THREATS OF MOB VIOLENCE RESULTING
THEREFROM, RESPONDENTS WERE UNABLE TO ATTEND THE SCHOOL UNTIL TROOPS
WERE SENT AND MAINTAINED THERE BY THE FEDERAL GOVERNMENT FOR THEIR
PROTECTION; BUT THEY ATTENDED THE SCHOOL FOR THE REMAINDER OF THAT
SCHOOL YEAR.  FINDING THAT THESE EVENTS HAD RESULTED IN TENSIONS,
BEDLAM, CHAOS AND TURMOIL IN THE SCHOOL, WHICH DISRUPTED THE
EDUCATIONAL PROCESS, THE DISTRICT COURT, IN JUNE 1958, GRANTED
PETITIONERS' REQUEST THAT OPERATION OF THEIR PLAN OF DESEGREGATION BE
SUSPENDED FOR TWO AND ONE-HALF YEARS, AND THAT RESPONDENTS BE SENT BACK
TO SEGREGATED SCHOOLS.  THE COURT OF APPEALS REVERSED.  HELD:  THE
JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED, AND THE ORDERS OF THE
DISTRICT COURT ENFORCING PETITIONERS' PLAN OF DESEGREGATION ARE
REINSTATED, EFFECTIVE IMMEDIATELY.  PP. 4-20. 

1.  THIS COURT CANNOT COUNTENANCE A CLAIM BY THE GOVERNOR AND
LEGISLATURE OF A STATE THAT THERE IS NO DUTY ON STATE OFFICIALS TO OBEY
FEDERAL COURT ORDERS RESTING ON THIS COURT'S CONSIDERED INTERPRETATION
OF THE UNITED STATES CONSTITUTION IN BROWN V. BOARD OF EDUCATION, 347
U.S. 483.  P. 4. 

2.  THIS COURT REJECTS THE CONTENTION THAT IT SHOULD UPHOLD A
SUSPENSION OF THE LITTLE ROCK SCHOOL BOARD'S PLAN TO DO AWAY WITH
SEGREGATED PUBLIC SCHOOLS IN LITTLE ROCK UNTIL STATE LAWS AND EFFORTS
TO UPSET AND NULLIFY ITS HOLDING IN THE BROWN CASE HAVE BEEN FURTHER
CHALLENGED AND TESTED IN THE COURTS.  P. 4. 

3.  IN MANY LOCATIONS, OBEDIENCE TO THE DUTY OF DESEGREGATION WILL
REQUIRE THE IMMEDIATE GENERAL ADMISSION OF NEGRO CHILDREN, OTHERWISE
QUALIFIED AS STUDENTS FOR THEIR APPROPRIATE CLASSES, AT PARTICULAR
SCHOOLS.  P. 7. 

4.  IF, AFTER ANALYSIS OF THE RELEVANT FACTORS (WHICH, OF COURSE,
EXCLUDES HOSTILITY TO RACIAL DESEGREGATION), A DISTRICT COURT CONCLUDES
THAT JUSTIFICATION EXISTS FOR NOT REQUIRING THE PRESENT NONSEGREGATED
ADMISSION OF ALL QUALIFIED NEGRO CHILDREN TO PUBLIC SCHOOLS, IT SHOULD
SCRUTINIZE THE PROGRAM OF THE SCHOOL AUTHORITIES TO MAKE SURE THAT THEY
HAVE DEVELOPED ARRANGEMENTS POINTED TOWARD THE EARLIEST PRACTICABLE
COMPLETION OF DESEGREGATION, AND HAVE TAKEN APPROPRIATE STEPS TO PUT
THEIR PROGRAM INTO EFFECTIVE OPERATION.  P. 7. 

5.  THE PETITIONERS STAND IN THIS LITIGATION AS THE AGENTS OF THE
STATE, AND THEY CANNOT ASSERT THEIR GOOD FAITH AS AN EXCUSE FOR DELAY
IN IMPLEMENTING THE RESPONDENTS' CONSTITUTIONAL RIGHTS, WHEN
VINDICATION OF THOSE RIGHTS HAS BEEN RENDERED DIFFICULT OR IMPOSSIBLE
BY THE ACTIONS OF OTHER STATE OFFICIALS.  PP. 15-16. 

6.  THE CONSTITUTIONAL RIGHTS OF RESPONDENTS ARE NOT TO BE SACRIFICED
OR YIELDED TO THE VIOLENCE AND DISORDER WHICH HAVE FOLLOWED UPON THE
ACTIONS OF THE GOVERNOR AND LEGISLATURE, AND LAW AND ORDER ARE NOT HERE
TO BE PRESERVED BY DEPRIVING THE NEGRO CHILDREN OF THEIR CONSTITUTIONAL
RIGHTS.  P. 16. 

7.  THE CONSTITUTIONAL RIGHTS OF CHILDREN NOT TO BE DISCRIMINATED
AGAINST IN SCHOOL ADMISSION ON GROUNDS OF RACE OR COLOR DECLARED BY
THIS COURT IN THE BROWN CASE CAN NEITHER BE NULLIFIED OPENLY AND
DIRECTLY BY STATE LEGISLATORS OR STATE EXECUTIVES OR JUDICIAL OFFICERS,
NOR NULLIFIED INDIRECTLY BY THEM THROUGH EVASIVE SCHEMES FOR
SEGREGATION WHETHER ATTEMPTED "INGENIOUSLY OR INGENUOUSLY."  PP. 16
17. 

8.  THE INTERPRETATION OF THE FOURTEENTH AMENDMENT ENUNCIATED BY THIS
COURT IN THE BROWN CASE IS THE SUPREME LAW OF THE LAND, AND ART. VI OF
THE CONSTITUTION MAKES IT OF BINDING EFFECT ON THE STATES "ANY THING IN
THE CONSTITUTION OR LAWS OF ANY STATE TO THE CONTRARY
NOTWITHSTANDING."  P. 18. 

9.  NO STATE LEGISLATOR OR EXECUTIVE OR JUDICIAL OFFICER CAN WAR
AGAINST THE CONSTITUTION WITHOUT VIOLATING HIS SOLEMN OATH TO SUPPORT
IT.  P. 18. 

10.  STATE SUPPORT OF SEGREGATED SCHOOLS THROUGH ANY ARRANGEMENT,
MANAGEMENT, FUNDS OR PROPERTY CANNOT BE SQUARED WITH THE COMMAND OF THE
FOURTEENTH AMENDMENT THAT NO STATE SHALL DENY TO ANY PERSON WITHIN ITS
JURISDICTION THE EQUAL PROTECTION OF THE LAWS.  P. 19. 

COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK,
ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL. V. AARON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT.* 

*NOTE:  THE PER CURIAM OPINION ANNOUNCED ON SEPTEMBER 12, 1958, AND
PRINTED IN A FOOTNOTE, POST, P. 5, APPLIES NOT ONLY TO THIS CASE BUT
ALSO TO NO. 1, MISC., AUGUST SPECIAL TERM, 1958, AARON ET AL. V. COOPER
ET AL., ON APPLICATION FOR VACATION OF ORDER OF THE UNITED STATES COURT
OF APPEALS FOR THE EIGHTH CIRCUIT STAYING ISSUANCE OF ITS MANDATE, FOR
STAY OF ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF ARKANSAS, AND FOR SUCH OTHER ORDERS AS PETITIONERS MAY BE
ENTITLED TO, ARGUED AUGUST 28, 1958. 

OPINION OF THE COURT BY THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR.
JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR.
JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, AND MR. JUSTICE
WHITTAKER. 

AS THIS CASE REACHES US IT RAISES QUESTIONS OF THE HIGHEST IMPORTANCE
TO THE MAINTENANCE OF OUR FEDERAL SYSTEM OF GOVERNMENT.  IT NECESSARILY
INVOLVES A CLAIM BY THE GOVERNOR AND LEGISLATURE OF A STATE THAT THERE
IS NO DUTY ON STATE OFFICIALS TO OBEY FEDERAL COURT ORDERS RESTING ON
THIS COURT'S CONSIDERED INTERPRETATION OF THE UNITED STATES
CONSTITUTION.  SPECIFICALLY IT INVOLVES ACTIONS BY THE GOVERNOR AND
LEGISLATURE OF ARKANSAS UPON THE PREMISE THAT THEY ARE NOT BOUND BY OUR
HOLDING IN BROWN V. BOARD OF EDUCATION, 347 U.S. 483.  THAT HOLDING WAS
THAT THE FOURTEENTH AMENDMENT FORBIDS STATES TO USE THEIR GOVERNMENTAL
POWERS TO BAR CHILDREN ON RACIAL GROUNDS FROM ATTENDING SCHOOLS WHERE
THERE IS STATE PARTICIPATION THROUGH ANY ARRANGEMENT, MANAGEMENT, FUNDS
OR PROPERTY.  WE ARE URGED TO UPHOLD A SUSPENSION OF THE LITTLE ROCK
SCHOOL BOARD'S PLAN TO DO AWAY WITH SEGREGATED PUBLIC SCHOOLS IN LITTLE
ROCK UNTIL STATE LAWS AND EFFORTS TO UPSET AND NULLIFY OUR HOLDING IN
BROWN V. BOARD OF EDUCATION HAVE BEEN FURTHER CHALLENGED AND TESTED IN
THE COURTS.  WE REJECT THESE CONTENTIONS. 

THE CASE WAS ARGUED BEFORE US ON SEPTEMBER 11, 1958.  ON THE
FOLLOWING DAY WE UNANIMOUSLY AFFIRMED THE JUDGMENT OF THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT, 257 F.2D 33, WHICH HAD REVERSED A
JUDGMENT OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS,
163 F. SUPP. 13.  THE DISTRICT COURT HAD GRANTED THE APPLICATION OF THE
PETITIONERS, THE LITTLE ROCK SCHOOL BOARD AND SCHOOL SUPERINTENDENT, TO
SUSPEND FOR TWO AND ONE-HALF YEARS THE OPERATION OF THE SCHOOL BOARD'S
COURT-APPROVED DESEGREGATION PROGRAM.  IN ORDER THAT THE SCHOOL BOARD
MIGHT KNOW, WITHOUT DOUBT, ITS DUTY IN THIS REGARD BEFORE THE OPENING
OF SCHOOL, WHICH HAD BEEN SET FOR THE FOLLOWING MONDAY, SEPTEMBER 15,
1958, WE IMMEDIATELY ISSUED THE JUDGMENT, RESERVING THE EXPRESSION OF
OUR SUPPORTING VIEWS TO A LATER DATE.*  THIS OPINION OF ALL OF THE
MEMBERS OF THE COURT EMBODIES THOSE VIEWS. 

*THE FOLLOWING WAS THE COURT'S PER CURIAM OPINION: 

"PER CURIAM. 

"THE COURT, HAVING FULLY DELIBERATED UPON THE ORAL ARGUMENTS HAD ON
AUGUST 28, 1958, AS SUPPLEMENTED BY THE ARGUMENTS PRESENTED ON
SEPTEMBER 11, 1958, AND ALL THE BRIEFS ON FILE, IS UNANIMOUSLY OF THE
OPINION THAT THE JUDGMENT OF THE COURT OF APPEALS FOR THE EIGHTH
CIRCUIT OF AUGUST 18, 1958, 257 F.2D 33, MUST BE AFFIRMED.  IN VIEW OF
THE IMMINENT COMMENCEMENT OF THE NEW SCHOOL YEAR AT THE CENTRAL HIGH
SCHOOL OF LITTLE ROCK, ARKANSAS, WE DEEM IT IMPORTANT TO MAKE PROMPT
ANNOUNCEMENT OF OUR JUDGMENT AFFIRMING THE COURT OF APPEALS.  THE
EXPRESSION OF THE VIEWS SUPPORTING OUR JUDGMENT WILL BE PREPARED AND
ANNOUNCED IN DUE COURSE. 

"IT IS ACCORDINGLY ORDERED THAT THE JUDGMENT OF THE COURT OF APPEALS
FOR THE EIGHTH CIRCUIT, DATED AUGUST 18, 1958, 257 F.2D 33, REVERSING
THE JUDGMENT OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
ARKANSAS, DATED JUNE 20, 1958, 163 F. SUPP. 13, BE AFFIRMED, AND THAT
THE JUDGMENTS OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
ARKANSAS, DATED AUGUST 28, 1956, SEE 143 F. SUPP. 855, AND SEPTEMBER 3,
1957, ENFORCING THE SCHOOL BOARD'S PLAN FOR DESEGREGATION IN COMPLIANCE
WITH THE DECISION OF THIS COURT IN BROWN V. BOARD OF EDUCATION, 347
U.S. 483, 349 U.S. 294, BE REINSTATED.  IT FOLLOWS THAT THE ORDER OF
THE COURT OF APPEALS DATED AUGUST 21, 1958, STAYING ITS OWN MANDATE IS
OF NO FURTHER EFFECT. 

"THE JUDGMENT OF THIS COURT SHALL BE EFFECTIVE IMMEDIATELY, AND SHALL
BE COMMUNICATED FORTHWITH TO THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF ARKANSAS." 

THE FOLLOWING ARE THE FACTS AND CIRCUMSTANCES SO FAR AS NECESSARY TO
SHOW HOW THE LEGAL QUESTIONS ARE PRESENTED. 

ON MAY 17, 1954, THIS COURT DECIDED THAT ENFORCED RACIAL SEGREGATION
IN THE PUBLIC SCHOOLS OF A STATE IS A DENIAL OF THE EQUAL PROTECTION OF
THE LAWS ENJOINED BY THE FOURTEENTH AMENDMENT.  BROWN V. BOARD OF
EDUCATION, 347 U.S. 483.  THE COURT POSTPONED, PENDING FURTHER
ARGUMENT, FORMULATION OF A DECREE TO EFFECTUATE THIS DECISION.  THAT
DECREE WAS RENDERED MAY 31, 1955.  BROWN V. BOARD OF EDUCATION, 349
U.S. 294.  IN THE FORMULATION OF THAT DECREE THE COURT RECOGNIZED THAT
GOOD FAITH COMPLIANCE WITH THE PRINCIPLES DECLARED IN BROWN MIGHT IN
SOME SITUATIONS "CALL FOR ELIMINATION OF A VARIETY OF OBSTACLES IN
MAKING THE TRANSITION TO SCHOOL SYSTEMS OPERATED IN ACCORDANCE WITH THE
CONSTITUTIONAL PRINCIPLES SET FORTH IN OUR MAY 17, 1954, DECISION." 
ID., AT 300.  THE COURT WENT ON TO STATE: 

"COURTS OF EQUITY MAY PROPERLY TAKE INTO ACCOUNT THE PUBLIC INTEREST
IN THE ELIMINATION OF SUCH OBSTACLES IN A SYSTEMATIC AND EFFECTIVE
MANNER.  BUT IT SHOULD GO WITHOUT SAYING THAT THE VITALITY OF THESE
CONSTITUTIONAL PRINCIPLES CANNOT BE ALLOWED TO YIELD SIMPLY BECAUSE OF
DISAGREEMENT WITH THEM. 

"WHILE GIVING WEIGHT TO THESE PUBLIC AND PRIVATE CONSIDERATIONS, THE
COURTS WILL REQUIRE THAT THE DEFENDANTS MAKE A PROMPT AND REASONABLE
START TOWARD FULL COMPLIANCE WITH OUR MAY 17, 1954, RULING.  ONCE SUCH
A START HAS BEEN MADE, THE COURTS MAY FIND THAT ADDITIONAL TIME IS
NECESSARY TO CARRY OUT THE RULING IN AN EFFECTIVE MANNER.  THE BURDEN
RESTS UPON THE DEFENDANTS TO ESTABLISH THAT SUCH TIME IS NECESSARY IN
THE PUBLIC INTEREST AND IS CONSISTENT WITH GOOD FAITH COMPLIANCE AT THE
EARLIEST PRACTICABLE DATE.  TO THAT END, THE COURTS MAY CONSIDER
PROBLEMS RELATED TO ADMINISTRATION, ARISING FROM THE PHYSICAL CONDITION
OF THE SCHOOL PLANT, THE SCHOOL TRANSPORTATION SYSTEM, PERSONNEL,
REVISION OF SCHOOL DISTRICTS AND ATTENDANCE AREAS INTO COMPACT UNITS TO
ACHIEVE A SYSTEM OF DETERMINING ADMISSION TO THE PUBLIC SCHOOLS ON A
NONRACIAL BASIS, AND REVISION OF LOCAL LAWS AND REGULATIONS WHICH MAY
BE NECESSARY IN SOLVING THE FOREGOING PROBLEMS."  349 U.S., AT 300
301. 

UNDER SUCH CIRCUMSTANCES, THE DISTRICT COURTS WERE DIRECTED TO
REQUIRE "A PROMPT AND REASONABLE START TOWARD FULL COMPLIANCE," AND TO
TAKE SUCH ACTION AS WAS NECESSARY TO BRING ABOUT THE END OF RACIAL
SEGREGATION IN THE PUBLIC SCHOOLS "WITH ALL DELIBERATE SPEED."  IBID. 
OF COURSE, IN MANY LOCATIONS, OBEDIENCE TO THE DUTY OF DESEGREGATION
WOULD REQUIRE THE IMMEDIATE GENERAL ADMISSION OF NEGRO CHILDREN,
OTHERWISE QUALIFIED AS STUDENTS FOR THEIR APPROPRIATE CLASSES, AT
PARTICULAR SCHOOLS.  ON THE OTHER HAND, A DISTRICT COURT, AFTER
ANALYSIS OF THE RELEVANT FACTORS (WHICH, OF COURSE, EXCLUDES HOSTILITY
TO RACIAL DESEGREGATION), MIGHT CONCLUDE THAT JUSTIFICATION EXISTED FOR
NOT REQUIRING THE PRESENT NONSEGREGATED ADMISSION OF ALL QUALIFIED
NEGRO CHILDREN.  IN SUCH CIRCUMSTANCES, HOWEVER, THE COURTS SHOULD
SCRUTINIZE THE PROGRAM OF THE SCHOOL AUTHORITIES TO MAKE SURE THAT THEY
HAD DEVELOPED ARRANGEMENTS POINTED TOWARD THE EARLIEST PRACTICABLE
COMPLETION OF DESEGREGATION, AND HAD TAKEN APPROPRIATE STEPS TO PUT
THEIR PROGRAM INTO EFFECTIVE OPERATION.  IT WAS MADE PLAIN THAT DELAY
IN ANY GUISE IN ORDER TO DENY THE CONSTITUTIONAL RIGHTS OF NEGRO
CHILDREN COULD NOT BE COUNTENANCED, AND THAT ONLY A PROMPT START,
DILIGENTLY AND EARNESTLY PURSUED, TO ELIMINATE RACIAL SEGREGATION FROM
THE PUBLIC SCHOOLS COULD CONSTITUTE GOOD FAITH COMPLIANCE.  STATE
AUTHORITIES WERE THUS DUTY BOUND TO DEVOTE EVERY EFFORT TOWARD
INITIATING DESEGREGATION AND BRINGING ABOUT THE ELIMINATION OF RACIAL
DISCRIMINATION IN THE PUBLIC SCHOOL SYSTEM. 

ON MAY 20, 1954, THREE DAYS AFTER THE FIRST BROWN OPINION, THE LITTLE
ROCK DISTRICT SCHOOL BOARD ADOPTED AND ON MAY 23, 1954, MADE PUBLIC, A
STATEMENT OF POLICY ENTITLED "SUPREME COURT DECISION - SEGREGATION IN
PUBLIC SCHOOLS."  IN THIS STATEMENT THE BOARD RECOGNIZED THAT: 

"IT IS OUR RESPONSIBILITY TO COMPLY WITH FEDERAL CONSTITUTIONAL
REQUIREMENTS AND WE INTEND TO DO SO WHEN THE SUPREME COURT OF THE
UNITED STATES OUTLINES THE METHOD TO BE FOLLOWED." 

THEREAFTER THE BOARD UNDERTOOK STUDIES OF THE ADMINISTRATIVE PROBLEMS
CONFRONTING THE TRANSITION TO A DESEGREGATED PUBLIC SCHOOL SYSTEM AT
LITTLE ROCK.  IT INSTRUCTED THE SUPERINTENDENT OF SCHOOLS TO PREPARE A
PLAN FOR DESEGREGATION, AND APPROVED SUCH A PLAN ON MAY 24, 1955, SEVEN
DAYS BEFORE THE SECOND BROWN OPINION.  THE PLAN PROVIDED FOR
DESEGREGATION AT THE SENIOR HIGH SCHOOL LEVEL (GRADES 10 THROUGH 12) AS
THE FIRST STAGE.  DESEGREGATION AT THE JUNIOR HIGH AND ELEMENTARY
LEVELS WAS TO FOLLOW.  IT WAS CONTEMPLATED THAT DESEGREGATION AT THE
HIGH SCHOOL LEVEL WOULD COMMENCE IN THE FALL OF 1957, AND THE
EXPECTATION WAS THAT COMPLETE DESEGREGATION OF THE SCHOOL SYSTEM WOULD
BE ACCOMPLISHED BY 1963.  FOLLOWING THE ADOPTION OF THIS PLAN, THE
SUPERINTENDENT OF SCHOOLS DISCUSSED IT WITH A LARGE NUMBER OF CITIZEN
GROUPS IN THE CITY.  AS A RESULT OF THESE DISCUSSIONS, THE BOARD
REACHED THE CONCLUSION THAT "A LARGE MAJORITY OF THE RESIDENTS" OF
LITTLE ROCK WERE OF "THE BELIEF ...  THAT THE PLAN, ALTHOUGH
OBJECTIONABLE IN PRINCIPLE," FROM THE POINT OF VIEW OF THOSE SUPPORTING
SEGREGATED SCHOOLS, "WAS STILL THE BEST FOR THE INTERESTS OF ALL PUPILS
IN THE DISTRICT." 

UPON CHALLENGE BY A GROUP OF NEGRO PLAINTIFFS DESIRING MORE RAPID
COMPLETION OF THE DESEGREGATION PROCESS, THE DISTRICT COURT UPHELD THE
SCHOOL BOARD'S PLAN, AARON V. COOPER, 143 F. SUPP. 855.  THE COURT OF
APPEALS AFFIRMED.  243 F.2D 361.  REVIEW OF THAT JUDGMENT WAS NOT
SOUGHT HERE. 

WHILE THE SCHOOL BOARD WAS THUS GOING FORWARD WITH ITS PREPARATION
FOR DESEGREGATING THE LITTLE ROCK SCHOOL SYSTEM, OTHER STATE
AUTHORITIES, IN CONTRAST, WERE ACTIVELY PURSUING A PROGRAM DESIGNED TO
PERPETUATE IN ARKANSAS THE SYSTEM OF RACIAL SEGREGATION WHICH THIS
COURT HAD HELD VIOLATED THE FOURTEENTH AMENDMENT.  FIRST CAME, IN
NOVEMBER 1956, AN AMENDMENT TO THE STATE CONSTITUTION FLATLY COMMANDING
THE ARKANSAS GENERAL ASSEMBLY TO OPPOSE "IN EVERY CONSTITUTIONAL MANNER
THE UN-CONSTITUTIONAL DESEGREGATION DECISIONS OF MAY 17, 1954 AND MAY
31, 1955 OF THE UNITED STATES SUPREME COURT," ARK. CONST., AMEND. 44,
AND, THROUGH THE INITIATIVE, A PUPIL ASSIGNMENT LAW, ARK. STAT. 80-1519
TO 80-1524.  PURSUANT TO THIS STATE CONSTITUTIONAL COMMAND, A LAW
RELIEVING SCHOOL CHILDREN FROM COMPULSORY ATTENDANCE AT RACIALLY MIXED
SCHOOLS, ARK. STAT. 80-1525, AND A LAW ESTABLISHING A STATE SOVEREIGNTY
COMMISSION, ARK. STAT. 6-801 TO 6-824, WERE ENACTED BY THE GENERAL
ASSEMBLY IN FEBRUARY 1957. 

THE SCHOOL BOARD AND THE SUPERINTENDENT OF SCHOOLS NEVERTHELESS
CONTINUED WITH PREPARATIONS TO CARRY OUT THE FIRST STAGE OF THE
DESEGREGATION PROGRAM.  NINE NEGRO CHILDREN WERE SCHEDULED FOR
ADMISSION IN SEPTEMBER 1957 TO CENTRAL HIGH SCHOOL, WHICH HAS MORE THAN
TWO THOUSAND STUDENTS.  VARIOUS ADMINISTRATIVE MEASURES, DESIGNED TO
ASSURE THE SMOOTH TRANSITION OF THIS FIRST STAGE OF DESEGREGATION, WERE
UNDERTAKEN. 

ON SEPTEMBER 2, 1957, THE DAY BEFORE THESE NEGRO STUDENTS WERE TO
ENTER CENTRAL HIGH, THE SCHOOL AUTHORITIES WERE MET WITH DRASTIC
OPPOSING ACTION ON THE PART OF THE GOVERNOR OF ARKANSAS WHO DISPATCHED
UNITS OF THE ARKANSAS NATIONAL GUARD TO THE CENTRAL HIGH SCHOOL GROUNDS
AND PLACED THE SCHOOL "OFF LIMITS" TO COLORED STUDENTS.  AS FOUND BY
THE DISTRICT COURT IN SUBSEQUENT PROCEEDINGS, THE GOVERNOR'S ACTION HAD
NOT BEEN REQUESTED BY THE SCHOOL AUTHORITIES, AND WAS ENTIRELY
UNHERALDED.   THE FINDINGS WERE THESE: 

"UP TO THIS TIME (SEPTEMBER 2), NO CROWDS HAD GATHERED ABOUT CENTRAL
HIGH SCHOOL AND NO ACTS OF VIOLENCE OR THREATS OF VIOLENCE IN
CONNECTION WITH THE CARRYING OUT OF THE PLAN HAD OCCURRED. 
NEVERTHELESS, OUT OF AN ABUNDANCE OF CAUTION, THE SCHOOL AUTHORITIES
HAD FREQUENTLY CONFERRED WITH THE MAYOR AND CHIEF OF POLICE OF LITTLE
ROCK ABOUT TAKING APPROPRIATE STEPS BY THE LITTLE ROCK POLICE TO
PREVENT ANY POSSIBLE DISTURBANCES OR ACTS OF VIOLENCE IN CONNECTION
WITH THE ATTENDANCE OF THE 9 COLORED STUDENTS AT CENTRAL HIGH SCHOOL. 
THE MAYOR CONSIDERED THAT THE LITTLE ROCK POLICE FORCE COULD ADEQUATELY
COPE WITH ANY INCIDENTS WHICH MIGHT ARISE AT THE OPENING OF SCHOOL. 
THE MAYOR, THE CHIEF OF POLICE, AND THE SCHOOL AUTHORITIES MADE NO
REQUEST TO THE GOVERNOR OR ANY REPRESENTATIVE OF HIS FOR STATE
ASSISTANCE IN MAINTAINING PEACE AND ORDER AT CENTRAL HIGH SCHOOL. 
NEITHER THE GOVERNOR NOR ANY OTHER OFFICIAL OF THE STATE GOVERNMENT
CONSULTED WITH THE LITTLE ROCK AUTHORITIES ABOUT WHETHER THE LITTLE
ROCK POLICE WERE PREPARED TO COPE WITH ANY INCIDENTS WHICH MIGHT ARISE
AT THE SCHOOL, ABOUT ANY NEED FOR STATE ASSISTANCE IN MAINTAINING PEACE
AND ORDER, OR ABOUT STATIONING THE ARKANSAS NATIONAL GUARD AT CENTRAL
HIGH SCHOOL."  AARON V. COOPER, 156 F. SUPP. 220, 225.    THE BOARD'S
PETITION FOR POSTPONEMENT IN THIS PROCEEDING STATES:  "THE EFFECT OF
THAT ACTION OF THE GOVERNOR WAS TO HARDEN THE CORE OF OPPOSITION TO THE
PLAN AND CAUSE MANY PERSONS WHO THERETOFORE HAD RELUCTANTLY ACCEPTED
THE PLAN TO BELIEVE THERE WAS SOME POWER IN THE STATE OF ARKANSAS
WHICH, WHEN EXERTED, COULD NULLIFY THE FEDERAL LAW AND PERMIT
DISOBEDIENCE OF THE DECREE OF THIS DISTRICT COURT, AND FROM THAT DATE
HOSTILITY TO THE PLAN WAS INCREASED AND CRITICISM OF THE OFFICIALS OF
THE SCHOOL DISTRICT HAS BECOME MORE BITTER AND UNRESTRAINED."  THE
GOVERNOR'S ACTION CAUSED THE SCHOOL BOARD TO REQUEST THE NEGRO STUDENTS
ON SEPTEMBER 2 NOT TO ATTEND THE HIGH SCHOOL "UNTIL THE LEGAL DILEMMA
WAS SOLVED."  THE NEXT DAY, SEPTEMBER 3, 1957, THE BOARD PETITIONED THE
DISTRICT COURT FOR INSTRUCTIONS, AND THE COURT, AFTER A HEARING, FOUND
THAT THE BOARD'S REQUEST OF THE NEGRO STUDENTS TO STAY AWAY FROM THE
HIGH SCHOOL HAD BEEN MADE BECAUSE OF THE STATIONING OF THE MILITARY
GUARDS BY THE STATE AUTHORITIES.  THE COURT DETERMINED THAT THIS WAS
NOT A REASON FOR DEPARTING FROM THE APPROVED PLAN, AND ORDERED THE
SCHOOL BOARD AND SUPERINTENDENT TO PROCEED WITH IT. 

ON THE MORNING OF THE NEXT DAY, SEPTEMBER 4, 1957, THE NEGRO CHILDREN
ATTEMPTED TO ENTER THE HIGH SCHOOL BUT, AS THE DISTRICT COURT LATER
FOUND, UNITS OF THE ARKANSAS NATIONAL GUARD "ACTING PURSUANT TO THE
GOVERNOR'S ORDER, STOOD SHOULDER TO SHOULDER AT THE SCHOOL GROUNDS AND
THEREBY FORCIBLY PREVENTED THE 9 NEGRO STUDENTS  ...  FROM ENTERING,"
AS THEY CONTINUED TO DO EVERY SCHOOL DAY DURING THE FOLLOWING THREE
WEEKS.  156 F. SUPP., AT 225. 

THAT SAME DAY, SEPTEMBER 4, 1957, THE UNITED STATES ATTORNEY FOR THE
EASTERN DISTRICT OF ARKANSAS WAS REQUESTED BY THE DISTRICT COURT TO
BEGIN AN IMMEDIATE INVESTIGATION IN ORDER TO FIX RESPONSIBILITY FOR THE
INTERFERENCE WITH THE ORDERLY IMPLEMENTATION OF THE DISTRICT COURT'S
DIRECTION TO CARRY OUT THE DESEGREGATION PROGRAM.  THREE DAYS LATER,
SEPTEMBER 7, THE DISTRICT COURT DENIED A PETITION OF THE SCHOOL BOARD
AND THE SUPERINTENDENT OF SCHOOLS FOR AN ORDER TEMPORARILY SUSPENDING
CONTINUANCE OF THE PROGRAM. 

UPON COMPLETION OF THE UNITED STATES ATTORNEY'S INVESTIGATION, HE AND
THE ATTORNEY GENERAL OF THE UNITED STATES, AT THE DISTRICT COURT'S
REQUEST, ENTERED THE PROCEEDINGS AND FILED A PETITION ON BEHALF OF THE
UNITED STATES, AS AMICUS CURIAE, TO ENJOIN THE GOVERNOR OF ARKANSAS AND
OFFICERS OF THE ARKANSAS NATIONAL GUARD FROM FURTHER ATTEMPTS TO
PREVENT OBEDIENCE TO THE COURT'S ORDER.  AFTER HEARINGS ON THE
PETITION, THE DISTRICT COURT FOUND THAT THE SCHOOL BOARD'S PLAN HAD
BEEN OBSTRUCTED BY THE GOVERNOR THROUGH THE USE OF NATIONAL GUARD
TROOPS, AND GRANTED A PRELIMINARY INJUNCTION ON SEPTEMBER 20, 1957,
ENJOINING THE GOVERNOR AND THE OFFICERS OF THE GUARD FROM PREVENTING
THE ATTENDANCE OF NEGRO CHILDREN AT CENTRAL HIGH SCHOOL, AND FROM
OTHERWISE OBSTRUCTING OR INTERFERING WITH THE ORDERS OF THE COURT IN
CONNECTION WITH THE PLAN.  156 F. SUPP. 220, AFFIRMED, FAUBUS V. UNITED
STATES, 254 F.2D 797.  THE NATIONAL GUARD WAS THEN WITHDRAWN FROM THE
SCHOOL. 

THE NEXT SCHOOL DAY WAS MONDAY, SEPTEMBER 23, 1957.  THE NEGRO
CHILDREN ENTERED THE HIGH SCHOOL THAT MORNING UNDER THE PROTECTION OF
THE LITTLE ROCK POLICE DEPARTMENT AND MEMBERS OF THE ARKANSAS STATE
POLICE.  BUT THE OFFICERS CAUSED THE CHILDREN TO BE REMOVED FROM THE
SCHOOL DURING THE MORNING BECAUSE THEY HAD DIFFICULTY CONTROLLING A
LARGE AND DEMONSTRATING CROWD WHICH HAD GATHERED AT THE HIGH SCHOOL. 
163 F. SUPP., AT 16.  ON SEPTEMBER 25, HOWEVER, THE PRESIDENT OF THE
UNITED STATES DISPATCHED FEDERAL TROOPS TO CENTRAL HIGH SCHOOL AND
ADMISSION OF THE NEGRO STUDENTS TO THE SCHOOL WAS THEREBY EFFECTED. 
REGULAR ARMY TROOPS CONTINUED AT THE HIGH SCHOOL UNTIL NOVEMBER 27,
1957.  THEY WERE THEN REPLACED BY FEDERALIZED NATIONAL GUARDSMEN WHO
REMAINED THROUGHOUT THE BALANCE OF THE SCHOOL YEAR.  EIGHT OF THE NEGRO
STUDENTS REMAINED IN ATTENDANCE AT THE SCHOOL THROUGHOUT THE SCHOOL
YEAR. 

WE COME NOW TO THE ASPECT OF THE PROCEEDINGS PRESENTLY BEFORE US.  ON
FEBRUARY 20, 1958, THE SCHOOL BOARD AND THE SUPERINTENDENT OF SCHOOLS
FILED A PETITION IN THE DISTRICT COURT SEEKING A POSTPONEMENT OF THEIR
PROGRAM FOR DESEGREGATION.  THEIR POSITION IN ESSENCE WAS THAT BECAUSE
OF EXTREME PUBLIC HOSTILITY, WHICH THEY STATED HAD BEEN ENGENDERED
LARGELY BY THE OFFICIAL ATTITUDES AND ACTIONS OF THE GOVERNOR AND THE
LEGISLATURE, THE MAINTENANCE OF A SOUND EDUCATIONAL PROGRAM AT CENTRAL
HIGH SCHOOL, WITH THE NEGRO STUDENTS IN ATTENDANCE, WOULD BE
IMPOSSIBLE.  THE BOARD THEREFORE PROPOSED THAT THE NEGRO STUDENTS
ALREADY ADMITTED TO THE SCHOOL BE WITHDRAWN AND SENT TO SEGREGATED
SCHOOLS, AND THAT ALL FURTHER STEPS TO CARRY OUT THE BOARD'S
DESEGREGATION PROGRAM BE POSTPONED FOR A PERIOD LATER SUGGESTED BY THE
BOARD TO BE TWO AND ONE-HALF YEARS. 

AFTER A HEARING THE DISTRICT COURT GRANTED THE RELIEF REQUESTED BY
THE BOARD.  AMONG OTHER THINGS THE COURT FOUND THAT THE PAST YEAR AT
CENTRAL HIGH SCHOOL HAD BEEN ATTENDED BY CONDITIONS OF "CHAOS, BEDLAM
AND TURMOIL"; THAT THERE WERE "REPEATED INCIDENTS OF MORE OR LESS
SERIOUS VIOLENCE DIRECTED AGAINST THE NEGRO STUDENTS AND THEIR
PROPERTY"; THAT THERE WAS "TENSION AND UNREST AMONG THE SCHOOL
ADMINISTRATORS, THE CLASS-ROOM TEACHERS, THE PUPILS, AND THE LATTERS'
PARENTS, WHICH INEVITABLY HAD AN ADVERSE EFFECT UPON THE EDUCATIONAL
PROGRAM"; THAT A SCHOOL OFFICIAL WAS THREATENED WITH VIOLENCE; THAT A
"SERIOUS FINANCIAL BURDEN" HAD BEEN CAST ON THE SCHOOL DISTRICT; THAT
THE EDUCATION OF THE STUDENTS HAD SUFFERED "AND UNDER EXISTING
CONDITIONS WILL CONTINUE TO SUFFER"; THAT THE BOARD WOULD CONTINUE TO
NEED "MILITARY ASSISTANCE OR ITS EQUIVALENT"; THAT THE LOCAL POLICE
DEPARTMENT WOULD NOT BE ABLE "TO DETAIL ENOUGH MEN TO AFFORD THE
NECESSARY PROTECTION"; AND THAT THE SITUATION WAS "INTOLERABLE."  163
F. SUPP., AT 20-26. 

THE DISTRICT COURT'S JUDGMENT WAS DATED JUNE 20, 1958.  THE NEGRO
RESPONDENTS APPEALED TO THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT AND
ALSO SOUGHT THERE A STAY OF THE DISTRICT COURT'S JUDGMENT.  AT THE SAME
TIME THEY FILED A PETITION FOR CERTIORARI IN THIS COURT ASKING US TO
REVIEW THE DISTRICT COURT'S JUDGMENT WITHOUT AWAITING THE DISPOSITION
OF THEIR APPEAL TO THE COURT OF APPEALS, OR OF THEIR PETITION TO THAT
COURT FOR A STAY.  THAT WE DECLINED TO DO.  357 U.S. 566.  THE COURT OF
APPEALS DID NOT ACT ON THE PETITION FOR A STAY, BUT, ON AUGUST 18,
1958, AFTER CONVENING IN SPECIAL SESSION ON AUGUST 4 AND HEARING THE
APPEAL, REVERSED THE DISTRICT COURT, 257 F.2D 33.  ON AUGUST 21, 1958,
THE COURT OF APPEALS STAYED ITS MANDATE TO PERMIT THE SCHOOL BOARD TO
PETITION THIS COURT FOR CERTIORARI.  PENDING THE FILING OF THE SCHOOL
BOARD'S PETITION FOR CERTIORARI, THE NEGRO RESPONDENTS, ON AUGUST 23,
1958, APPLIED TO MR. JUSTICE WHITTAKER, AS CIRCUIT JUSTICE FOR THE
EIGHTH CIRCUIT, TO STAY THE ORDER OF THE COURT OF APPEALS WITHHOLDING
ITS OWN MANDATE AND ALSO TO STAY THE DISTRICT COURT'S JUDGMENT.  IN
VIEW OF THE NATURE OF THE MOTIONS, HE REFERRED THEM TO THE ENTIRE
COURT.  RECOGNIZING THE VITAL IMPORTANCE OF A DECISION OF THE ISSUES IN
TIME TO PERMIT ARRANGEMENTS TO BE MADE FOR THE 1958-1959 SCHOOL YEAR,
SEE AARON V. COOPER, 357 U.S. 566, 567, WE CONVENED IN SPECIAL TERM ON
AUGUST 28, 1958, AND HEARD ORAL ARGUMENT ON THE RESPONDENTS' MOTIONS,
AND ALSO ARGUMENT OF THE SOLICITOR GENERAL WHO, BY INVITATION, APPEARED
FOR THE UNITED STATES AS AMICUS CURIAE, AND ASSERTED THAT THE COURT OF
APPEALS' JUDGMENT WAS CLEARLY CORRECT ON THE MERITS, AND URGED THAT WE
VACATE ITS STAY FORTHWITH.  FINDING THAT RESPONDENTS' APPLICATION
NECESSARILY INVOLVED CONSIDERATION OF THE MERITS OF THE LITIGATION, WE
ENTERED AN ORDER WHICH DEFERRED DECISION UPON THE MOTIONS PENDING THE
DISPOSITION OF THE SCHOOL BOARD'S PETITION FOR CERTIORARI, AND FIXED
SEPTEMBER 8, 1958, AS THE DAY ON OR BEFORE WHICH SUCH PETITION MIGHT BE
FILED, AND SEPTEMBER 11, 1958, FOR ORAL ARGUMENT UPON THE PETITION. 
THE PETITION FOR CERTIORARI, DULY FILED, WAS GRANTED IN OPEN COURT ON
SEPTEMBER 11, 1958, POST, P. 29, AND FURTHER ARGUMENTS WERE HAD, THE
SOLICITOR GENERAL AGAIN URGING THE CORRECTNESS OF THE JUDGMENT OF THE
COURT OF APPEALS.  ON SEPTEMBER 12, 1958, AS ALREADY MENTIONED, WE
UNANIMOUSLY AFFIRMED THE JUDGMENT OF THE COURT OF APPEALS IN THE PER
CURIAM OPINION SET FORTH IN THE MARGIN AT THE OUTSET OF THIS OPINION,
ANTE, P. 5. 

IN AFFIRMING THE JUDGMENT OF THE COURT OF APPEALS WHICH REVERSED THE
DISTRICT COURT WE HAVE ACCEPTED WITHOUT RESERVATION THE POSITION OF THE
SCHOOL BOARD, THE SUPERINTENDENT OF SCHOOLS, AND THEIR COUNSEL THAT
THEY DISPLAYED ENTIRE GOOD FAITH IN THE CONDUCT OF THESE PROCEEDINGS
AND IN DEALING WITH THE UNFORTUNATE AND DISTRESSING SEQUENCE OF EVENTS
WHICH HAS BEEN OUTLINED.  WE LIKEWISE HAVE ACCEPTED THE FINDINGS OF THE
DISTRICT COURT AS TO THE CONDITIONS AT CENTRAL HIGH SCHOOL DURING THE
1957-1958 SCHOOL YEAR, AND ALSO THE FINDINGS THAT THE EDUCATIONAL
PROGRESS OF ALL THE STUDENTS, WHITE AND COLORED, OF THAT SCHOOL HAS
SUFFERED AND WILL CONTINUE TO SUFFER IF THE CONDITIONS WHICH PREVAILED
LAST YEAR ARE PERMITTED TO CONTINUE. 

THE SIGNIFICANCE OF THESE FINDINGS, HOWEVER, IS TO BE CONSIDERED IN
LIGHT OF THE FACT, INDISPUTABLY REVEALED BY THE RECORD BEFORE US, THAT
THE CONDITIONS THEY DEPICT ARE DIRECTLY TRACEABLE TO THE ACTIONS OF
LEGISLATORS AND EXECUTIVE OFFICIALS OF THE STATE OF ARKANSAS, TAKEN IN
THEIR OFFICIAL CAPACITIES, WHICH REFLECT THEIR OWN DETERMINATION TO
RESIST THIS COURT'S DECISION IN THE BROWN CASE AND WHICH HAVE BROUGHT
ABOUT VIOLENT RESISTANCE TO THAT DECISION IN ARKANSAS.  IN ITS PETITION
FOR CERTIORARI FILED IN THIS COURT, THE SCHOOL BOARD ITSELF DESCRIBES
THE SITUATION IN THIS LANGUAGE:  "THE LEGISLATIVE, EXECUTIVE, AND
JUDICIAL DEPARTMENTS OF THE STATE GOVERNMENT OPPOSED THE DESEGREGATION
OF LITTLE ROCK SCHOOLS BY ENACTING LAWS, CALLING OUT TROOPS, MAKING
STATEMENTS VILLIFYING FEDERAL LAW AND FEDERAL COURTS, AND FAILING TO
UTILIZE STATE LAW ENFORCEMENT AGENCIES AND JUDICIAL PROCESSES TO
MAINTAIN PUBLIC PEACE." 

ONE MAY WELL SYMPATHIZE WITH THE POSITION OF THE BOARD IN THE FACE OF
THE FRUSTRATING CONDITIONS WHICH HAVE CONFRONTED IT, BUT, REGARDLESS OF
THE BOARD'S GOOD FAITH, THE ACTIONS OF THE OTHER STATE AGENCIES
RESPONSIBLE FOR THOSE CONDITIONS COMPEL US TO REJECT THE BOARD'S LEGAL
POSITION.  HAD CENTRAL HIGH SCHOOL BEEN UNDER THE DIRECT MANAGEMENT OF
THE STATE ITSELF, IT COULD HARDLY BE SUGGESTED THAT THOSE IMMEDIATELY
IN CHARGE OF THE SCHOOL SHOULD BE HEARD TO ASSERT THEIR OWN GOOD FAITH
AS A LEGAL EXCUSE FOR DELAY IN IMPLEMENTING THE CONSTITUTIONAL RIGHTS
OF THESE RESPONDENTS, WHEN VINDICATION OF THOSE RIGHTS WAS RENDERED
DIFFICULT OR IMPOSSIBLE BY THE ACTIONS OF OTHER STATE OFFICIALS.  THE
SITUATION HERE IS IN NO DIFFERENT POSTURE BECAUSE THE MEMBERS OF THE
SCHOOL BOARD AND THE SUPERINTENDENT OF SCHOOLS ARE LOCAL OFFICIALS;
FROM THE POINT OF VIEW OF THE FOURTEENTH AMENDMENT, THEY STAND IN THIS
LITIGATION AS THE AGENTS OF THE STATE. 

THE CONSTITUTIONAL RIGHTS OF RESPONDENTS ARE NOT TO BE SACRIFICED OR
YIELDED TO THE VIOLENCE AND DISORDER WHICH HAVE FOLLOWED UPON THE
ACTIONS OF THE GOVERNOR AND LEGISLATURE.  AS THIS COURT SAID SOME 41
YEARS AGO IN A UNANIMOUS OPINION IN A CASE INVOLVING ANOTHER ASPECT OF
RACIAL SEGREGATION: "IT IS URGED THAT THIS PROPOSED SEGREGATION WILL
PROMOTE THE PUBLIC PEACE BY PREVENTING RACE CONFLICTS.  DESIRABLE AS
THIS IS, AND IMPORTANT AS IS THE PRESERVATION OF THE PUBLIC PEACE, THIS
AIM CANNOT BE ACCOMPLISHED BY LAWS OR ORDINANCES WHICH DENY RIGHTS
CREATED OR PROTECTED BY THE FEDERAL CONSTITUTION."  BUCHANAN V. WARLEY,
245 U.S. 60, 81.  THUS LAW AND ORDER ARE NOT HERE TO BE PRESERVED BY
DEPRIVING THE NEGRO CHILDREN OF THEIR CONSTITUTIONAL RIGHTS.  THE
RECORD BEFORE US CLEARLY ESTABLISHES THAT THE GROWTH OF THE BOARD'S
DIFFICULTIES TO A MAGNITUDE BEYOND ITS UNAIDED POWER TO CONTROL IS THE
PRODUCT OF STATE ACTION.  THOSE DIFFICULTIES, AS COUNSEL FOR THE BOARD
FORTHRIGHTLY CONCEDED ON THE ORAL ARGUMENT IN THIS COURT, CAN ALSO BE
BROUGHT UNDER CONTROL BY STATE ACTION. 

THE CONTROLLING LEGAL PRINCIPLES ARE PLAIN.  THE COMMAND OF THE
FOURTEENTH AMENDMENT IS THAT NO "STATE" SHALL DENY TO ANY PERSON WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.  "A STATE ACTS BY
ITS LEGISLATIVE, ITS EXECUTIVE, OR ITS JUDICIAL AUTHORITIES.  IT CAN
ACT IN NO OTHER WAY.  THE CONSTITUTIONAL PROVISION, THEREFORE, MUST
MEAN THAT NO AGENCY OF THE STATE, OR OF THE OFFICERS OR AGENTS BY WHOM
ITS POWERS ARE EXERTED, SHALL DENY TO ANY PERSON WITHIN ITS
JURISDICTION THE EQUAL PROTECTION OF THE LAWS.  WHOEVER, BY VIRTUE OF
PUBLIC POSITION UNDER A STATE GOVERNMENT,  ... DENIES OR TAKES AWAY THE
EQUAL PROTECTION OF THE LAWS, VIOLATES THE CONSTITUTIONAL INHIBITION;
AND AS HE ACTS IN THE NAME AND FOR THE STATE, AND IS CLOTHED WITH THE
STATE'S POWER, HIS ACT IS THAT OF THE STATE.  THIS MUST BE SO, OR THE
CONSTITUTIONAL PROHIBITION HAS NO MEANING."  EX PARTE VIRGINIA, 100
U.S. 339, 347.  THUS THE PROHIBITIONS OF THE FOURTEENTH AMENDMENT
EXTEND TO ALL ACTION OF THE STATE DENYING EQUAL PROTECTION OF THE LAWS;
WHATEVER THE AGENCY OF THE STATE TAKING THE ACTION, SEE VIRGINIA V.
RIVES, 100 U.S. 313; PENNSYLVANIA V. BOARD OF DIRECTORS OF CITY TRUSTS
OF PHILADELPHIA, 353 U.S. 230; SHELLEY V. KRAEMER, 334 U.S. 1; OR
WHATEVER THE GUISE IN WHICH IT IS TAKEN, SEE DERRINGTON V. PLUMMER, 240
F.2D 922; DEPARTMENT OF CONSERVATION AND DEVELOPMENT V. TATE, 231 F.2D
615.  IN SHORT, THE CONSTITUTIONAL RIGHTS OF CHILDREN NOT TO BE
DISCRIMINATED AGAINST IN SCHOOL ADMISSION ON GROUNDS OF RACE OR COLOR
DECLARED BY THIS COURT IN THE BROWN CASE CAN NEITHER BE NULLIFIED
OPENLY AND DIRECTLY BY STATE LEGISLATORS OR STATE EXECUTIVE OR JUDICIAL
OFFICERS, NOR NULLIFIED INDIRECTLY BY THEM THROUGH EVASIVE SCHEMES FOR
SEGREGATION WHETHER ATTEMPTED "INGENIOUSLY OR INGENUOUSLY."  SMITH V.
TEXAS, 311 U.S. 128, 132.    WHAT HAS BEEN SAID, IN THE LIGHT OF THE
FACTS DEVELOPED, IS ENOUGH TO DISPOSE OF THE CASE.  HOWEVER, WE SHOULD
ANSWER THE PREMISE OF THE ACTIONS OF THE GOVERNOR AND LEGISLATURE THAT
THEY ARE NOT BOUND BY OUR HOLDING IN THE BROWN CASE.  IT IS NECESSARY
ONLY TO RECALL SOME BASIC CONSTITUTIONAL PROPOSITIONS WHICH ARE SETTLED
DOCTRINE.    ARTICLE VI OF THE CONSTITUTION MAKES THE CONSTITUTION THE
"SUPREME LAW OF THE LAND."  IN 1803, CHIEF JUSTICE MARSHALL, SPEAKING
FOR A UNANIMOUS COURT, REFERRING TO THE CONSTITUTION AS "THE
FUNDAMENTAL AND PARAMOUNT LAW OF THE NATION," DECLARED IN THE NOTABLE
CASE OF MARBURY V. MADISON, 1 CRANCH 137, 177, THAT "IT IS EMPHATICALLY
THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW
IS."  THIS DECISION DECLARED THE BASIC PRINCIPLE THAT THE FEDERAL
JUDICIARY IS SUPREME IN THE EXPOSITION OF THE LAW OF THE CONSTITUTION,
AND THAT PRINCIPLE HAS EVER SINCE BEEN RESPECTED BY THIS COURT AND THE
COUNTRY AS A PERMANENT AND INDISPENSABLE FEATURE OF OUR CONSTITUTIONAL
SYSTEM.   IT FOLLOWS THAT THE INTERPRETATION OF THE FOURTEENTH
AMENDMENT ENUNCIATED BY THIS COURT IN THE BROWN CASE IS THE SUPREME LAW
OF THE LAND, AND ART. VI OF THE CONSTITUTION MAKES IT OF BINDING EFFECT
ON THE STATES "ANY THING IN THE CONSTITUTION OR LAWS OF ANY STATE TO
THE CONTRARY NOTWITHSTANDING."  EVERY STATE LEGISLATOR AND EXECUTIVE
AND JUDICIAL OFFICER IS SOLEMNLY COMMITTED BY OATH TAKEN PURSUANT TO
ART. VI, CL. 3, "TO SUPPORT THIS CONSTITUTION."  CHIEF JUSTICE TANEY,
SPEAKING FOR A UNANIMOUS COURT IN 1859, SAID THAT THIS REQUIREMENT
REFLECTED THE FRAMERS'"ANXIETY TO PRESERVE IT (THE CONSTITUTION) IN
FULL FORCE, IN ALL ITS POWERS, AND TO GUARD AGAINST RESISTANCE TO OR
EVASION OF ITS AUTHORITY, ON THE PART OF A STATE  ...  ."  ABLEMAN V.
BOOTH, 21 HOW.  506, 524. 

NO STATE LEGISLATOR OR EXECUTIVE OR JUDICIAL OFFICER CAN WAR AGAINST
THE CONSTITUTION WITHOUT VIOLATING HIS UNDERTAKING TO SUPPORT IT.
CHIEF JUSTICE MARSHALL SPOKE FOR A UNANIMOUS COURT IN SAYING THAT:  "IF
THE LEGISLATURES OF THE SEVERAL STATES MAY, AT WILL, ANNUL THE
JUDGMENTS OF THE COURTS OF THE UNITED STATES, AND DESTROY THE RIGHTS
ACQUIRED UNDER THOSE JUDGMENTS, THE CONSTITUTION ITSELF BECOMES A
SOLEMN MOCKERY  ...  ."  UNITED STATES V. PETERS, 5 CRANCH 115, 136.  A
GOVERNOR WHO ASSERTS A POWER TO NULLIFY A FEDERAL COURT ORDER IS
SIMILARLY RESTRAINED.  IF HE HAD SUCH POWER, SAID CHIEF JUSTICE HUGHES,
IN 1932, ALSO FOR A UNANIMOUS COURT, "IT IS MANIFEST THAT THE FIAT OF A
STATE GOVERNOR, AND NOT THE CONSTITUTION OF THE UNITED STATES, WOULD BE
THE SUPREME LAW OF THE LAND; THAT THE RESTRICTIONS OF THE FEDERAL
CONSTITUTION UPON THE EXERCISE OF STATE POWER WOULD BE BUT IMPOTENT
PHRASES  ...  ."  STERLING V. CONSTANTIN, 287 U.S. 378, 397-398. 

IT IS, OF COURSE, QUITE TRUE THAT THE RESPONSIBILITY FOR PUBLIC
EDUCATION IS PRIMARILY THE CONCERN OF THE STATES, BUT IT IS EQUALLY
TRUE THAT SUCH RESPONSIBILITIES, LIKE ALL OTHER STATE ACTIVITY, MUST BE
EXERCISED CONSISTENTLY WITH FEDERAL CONSTITUTIONAL REQUIREMENTS AS THEY
APPLY TO STATE ACTION.  THE CONSTITUTION CREATED A GOVERNMENT DEDICATED
TO EQUAL JUSTICE UNDER LAW.  THE FOURTEENTH AMENDMENT EMBODIED AND
EMPHASIZED THAT IDEAL.  STATE SUPPORT OF SEGREGATED SCHOOLS THROUGH ANY
ARRANGEMENT, MANAGEMENT, FUNDS, OR PROPERTY CANNOT BE SQUARED WITH THE
AMENDMENT'S COMMAND THAT NO STATE SHALL DENY TO ANY PERSON WITHIN ITS
JURISDICTION THE EQUAL PROTECTION OF THE LAWS.  THE RIGHT OF A STUDENT
NOT TO BE SEGREGATED ON RACIAL GROUNDS IN SCHOOLS SO MAINTAINED IS
INDEED SO FUNDAMENTAL AND PERVASIVE THAT IT IS EMBRACED IN THE CONCEPT
OF DUE PROCESS OF LAW.  BOLLING V. SHARPE, 347 U.S. 497.  THE BASIC
DECISION IN BROWN WAS UNANIMOUSLY REACHED BY THIS COURT ONLY AFTER THE
CASE HAD BEEN BRIEFED AND TWICE ARGUED AND THE ISSUES HAD BEEN GIVEN
THE MOST SERIOUS CONSIDERATION.  SINCE THE FIRST BROWN OPINION THREE
NEW JUSTICES HAVE COME TO THE COURT.  THEY ARE AT ONE WITH THE JUSTICES
STILL ON THE COURT WHO PARTICIPATED IN THAT BASIC DECISION AS TO ITS
CORRECTNESS, AND THAT DECISION IS NOW UNANIMOUSLY REAFFIRMED.  THE
PRINCIPLES ANNOUNCED IN THAT DECISION AND THE OBEDIENCE OF THE STATES
TO THEM, ACCORDING TO THE COMMAND OF THE CONSTITUTION, ARE
INDISPENSABLE FOR THE PROTECTION OF THE FREEDOMS GUARANTEED BY OUR
FUNDAMENTAL CHARTER FOR ALL OF US.  OUR CONSTITUTIONAL IDEAL OF EQUAL
JUSTICE UNDER LAW IS THUS MADE A LIVING TRUTH. 

CONCURRING OPINION OF MR. JUSTICE FRANKFURTER.* 

*NOTE:  THIS OPINION WAS FILED OCTOBER 6, 1958. 

WHILE UNRESERVEDLY PARTICIPATING WITH MY BRETHREN IN OUR JOINT
OPINION, I DEEM IT APPROPRIATE ALSO TO DEAL INDIVIDUALLY WITH THE GREAT
ISSUE HERE AT STAKE. 

BY WORKING TOGETHER, BY SHARING IN A COMMON EFFORT, MEN OF DIFFERENT
MINDS AND TEMPERS, EVEN IF THEY DO NOT REACH AGREEMENT, ACQUIRE
UNDERSTANDING AND THEREBY TOLERANCE OF THEIR DIFFERENCES.  THIS PROCESS
WAS UNDER WAY IN LITTLE ROCK.  THE DETAILED PLAN FORMULATED BY THE
LITTLE ROCK SCHOOL BOARD, IN THE LIGHT OF LOCAL CIRCUMSTANCES, HAD BEEN
APPROVED BY THE UNITED STATES DISTRICT COURT IN ARKANSAS AS SATISFYING
THE REQUIREMENTS OF THIS COURT'S DECREE IN BROWN V. BOARD OF EDUCATION,
349 U.S. 294.  THE LITTLE ROCK SCHOOL BOARD HAD EMBARKED ON AN
EDUCATIONAL EFFORT "TO OBTAIN PUBLIC ACCEPTANCE" OF ITS PLAN.  THUS THE
PROCESS OF THE COMMUNITY'S ACCOMMODATION TO NEW DEMANDS OF LAW UPON IT,
THE DEVELOPMENT OF HABITS OF ACCEPTANCE OF THE RIGHT OF COLORED
CHILDREN TO THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE
CONSTITUTION, HAD PEACEFULLY AND PROMISINGLY BEGUN.  THE CONDITION IN
LITTLE ROCK BEFORE THIS PROCESS WAS FORCIBLY IMPEDED BY THOSE IN
CONTROL OF THE GOVERNMENT OF ARKANSAS WAS THUS DESCRIBED BY THE
DISTRICT COURT, AND THESE FINDINGS OF FACT HAVE NOT BEEN CONTROVERTED: 

"14.  UP TO THIS TIME, NO CROWDS HAD GATHERED ABOUT CENTRAL HIGH
SCHOOL AND NO ACTS OF VIOLENCE OR THREATS OF VIOLENCE IN CONNECTION
WITH THE CARRYING OUT OF THE PLAN HAD OCCURRED.  NEVERTHELESS, OUT OF
AN ABUNDANCE OF CAUTION, THE SCHOOL AUTHORITIES HAD FREQUENTLY
CONFERRED WITH THE MAYOR AND CHIEF OF POLICE OF LITTLE ROCK ABOUT
TAKING APPROPRIATE STEPS BY THE LITTLE ROCK POLICE TO PREVENT ANY
POSSIBLE DISTURBANCES OR ACTS OF VIOLENCE IN CONNECTION WITH THE
ATTENDANCE OF THE 9 COLORED STUDENTS AT CENTRAL HIGH SCHOOL.  THE MAYOR
CONSIDERED THAT THE LITTLE ROCK POLICE FORCE COULD ADEQUATELY COPE WITH
ANY INCIDENTS WHICH MIGHT ARISE AT THE OPENING OF SCHOOL.  THE MAYOR,
THE CHIEF OF POLICE, AND THE SCHOOL AUTHORITIES MADE NO REQUEST TO THE
GOVERNOR OR ANY REPRESENTATIVE OF HIS FOR STATE ASSISTANCE IN
MAINTAINING PEACE AND ORDER AT CENTRAL HIGH SCHOOL.  NEITHER THE
GOVERNOR NOR ANY OTHER OFFICIAL OF THE STATE GOVERNMENT CONSULTED WITH
THE LITTLE ROCK AUTHORITIES ABOUT WHETHER THE LITTLE ROCK POLICE WERE
PREPARED TO COPE WITH ANY INCIDENTS WHICH MIGHT ARISE AT THE SCHOOL,
ABOUT ANY NEED FOR STATE ASSISTANCE IN MAINTAINING PEACE AND ORDER, OR
ABOUT STATIONING THE ARKANSAS NATIONAL GUARD AT CENTRAL HIGH SCHOOL." 
156 F. SUPP. 220, 225. 

ALL THIS WAS DISRUPTED BY THE INTRODUCTION OF THE STATE MILITIA AND
BY OTHER OBSTRUCTIVE MEASURES TAKEN BY THE STATE.  THE ILLEGALITY OF
THESE INTERFERENCES WITH THE CONSTITUTIONAL RIGHT OF NEGRO CHILDREN
QUALIFIED TO ENTER THE CENTRAL HIGH SCHOOL IS UNAFFECTED BY WHATEVER
ACTION OR NON-ACTION THE FEDERAL GOVERNMENT HAD SEEN FIT TO TAKE.  NOR
IS IT NEUTRALIZED BY THE UNDOUBTED GOOD FAITH OF THE LITTLE ROCK SCHOOL
BOARD IN ENDEAVORING TO DISCHARGE ITS CONSTITUTIONAL DUTY. 

THE USE OF FORCE TO FURTHER OBEDIENCE TO LAW IS IN ANY EVENT A LAST
RESORT AND ONE NOT CONGENIAL TO THE SPIRIT OF OUR NATION.  BUT THE
TRAGIC ASPECT OF THIS DISRUPTIVE TACTIC WAS THAT THE POWER OF THE STATE
WAS USED NOT TO SUSTAIN LAW BUT AS AN INSTRUMENT FOR THWARTING LAW. 
THE STATE OF ARKANSAS IS THUS RESPONSIBLE FOR DISABLING ONE OF ITS
SUBORDINATE AGENCIES, THE LITTLE ROCK SCHOOL BOARD, FROM PEACEFULLY
CARRYING OUT THE BOARD'S AND THE STATE'S CONSTITUTIONAL DUTY. 
ACCORDINGLY, WHILE ARKANSAS IS NOT A FORMAL PARTY IN THESE PROCEEDINGS
AND A DECREE CANNOT GO AGAINST THE STATE, IT IS LEGALLY AND MORALLY
BEFORE THE COURT. 

WE ARE NOW ASKED TO HOLD THAT THE ILLEGAL, FORCIBLE INTERFERENCE BY
THE STATE OF ARKANSAS WITH THE CONTINUANCE OF WHAT THE CONSTITUTION
COMMANDS, AND THE CONSEQUENCES IN DISORDER THAT IT ENTRAINED, SHOULD BE
RECOGNIZED AS JUSTIFICATION FOR UNDOING WHAT THE SCHOOL BOARD HAD
FORMULATED, WHAT THE DISTRICT COURT IN 1955 HAD DIRECTED TO BE CARRIED
OUT, AND WHAT WAS IN PROCESS OF OBEDIENCE.  NO EXPLANATION THAT MAY BE
OFFERED IN SUPPORT OF SUCH A REQUEST CAN OBSCURE THE INESCAPABLE
MEANING THAT LAW SHOULD BOW TO FORCE.  TO YIELD TO SUCH A CLAIM WOULD
BE TO ENTHRONE OFFICIAL LAWLESSNESS, AND LAWLESSNESS IF NOT CHECKED IS
THE PRECURSOR OF ANARCHY.  ON THE FEW TRAGIC OCCASIONS IN THE HISTORY
OF THE NATION, NORTH AND SOUTH, WHEN LAW WAS FORCIBLY RESISTED OR
SYSTEMATICALLY EVADED, IT HAS SIGNALLED THE BREAKDOWN OF CONSTITUTIONAL
PROCESSES OF GOVERNMENT ON WHICH ULTIMATELY REST THE LIBERTIES OF ALL. 
VIOLENT RESISTANCE TO LAW CANNOT BE MADE A LEGAL REASON FOR ITS
SUSPENSION WITHOUT LOOSENING THE FABRIC OF OUR SOCIETY.  WHAT COULD
THIS MEAN BUT TO ACKNOWLEDGE THAT DISORDER UNDER THE AEGIS OF A STATE
HAS MORAL SUPERIORITY OVER THE LAW OF THE CONSTITUTION?  FOR THOSE IN
AUTHORITY THUS TO DEFY THE LAW OF THE LAND IS PROFOUNDLY SUBVERSIVE NOT
ONLY OF OUR CONSTITUTIONAL SYSTEM BUT OF THE PRESUPPOSITIONS OF A
DEMOCRATIC SOCIETY.  THE STATE "MUST  ...  YIELD TO AN AUTHORITY THAT
IS PARAMOUNT TO THE STATE."  THIS LANGUAGE OF COMMAND TO A STATE IS MR.
JUSTICE HOLMES', SPEAKING FOR THE COURT THAT COMPRISED MR. JUSTICE VAN
DEVANTER, MR. JUSTICE MCREYNOLDS, MR. JUSTICE BRANDEIS, MR. JUSTICE
SUTHERLAND, MR. JUSTICE BUTLER, AND MR. JUSTICE STONE.  WISCONSIN V.
ILLINOIS, 281 U.S. 179, 197. 

WHEN DEFIANCE OF LAW JUDICIALLY PRONOUNCED WAS LAST SOUGHT TO BE
JUSTIFIED BEFORE THIS COURT, VIEWS WERE EXPRESSED WHICH ARE NOW
ESPECIALLY RELEVANT: 

"THE HISTORIC PHRASE 'A GOVERNMENT OF LAWS AND NOT OF MEN' EPITOMIZES
THE DISTINGUISHING CHARACTER OF OUR POLITICAL SOCIETY.  WHEN JOHN ADAMS
PUT THAT PHRASE INTO THE MASSACHUSETTS DECLARATION OF RIGHTS HE WAS NOT
INDULGING IN A RHETORICAL FLOURISH.  HE WAS EXPRESSING THE AIM OF THOSE
WHO, WITH HIM, FRAMED THE DECLARATION OF INDEPENDENCE AND FOUNDED THE
REPUBLIC.  'A GOVERNMENT OF LAWS AND NOT OF MEN' WAS THE REJECTION IN
POSITIVE TERMS OF RULE BY FIAT, WHETHER BY THE FIAT OF GOVERNMENTAL OR
PRIVATE POWER.  EVERY ACT OF GOVERNMENT MAY BE CHALLENGED BY AN APPEAL
TO LAW, AS FINALLY PRONOUNCED BY THIS COURT.  EVEN THIS COURT HAS THE
LAST SAY ONLY FOR A TIME.  BEING COMPOSED OF FALLIBLE MEN, IT MAY ERR. 
BUT REVISION OF ITS ERRORS MUST BE BY ORDERLY PROCESS OF LAW.  THE
COURT MAY BE ASKED TO RECONSIDER ITS DECISIONS, AND THIS HAS BEEN DONE
SUCCESSFULLY AGAIN AND AGAIN THROUGHOUT OUR HISTORY.  OR, WHAT THIS
COURT HAS DEEMED ITS DUTY TO DECIDE MAY BE CHANGED BY LEGISLATION, AS
IT OFTEN HAS BEEN, AND, ON OCCASION, BY CONSTITUTIONAL AMENDMENT. 

"BUT FROM THEIR OWN EXPERIENCE AND THEIR DEEP READING IN HISTORY, THE
FOUNDERS KNEW THAT LAW ALONE SAVES A SOCIETY FROM BEING RENT BY
INTERNECINE STRIFE OR RULED BY MERE BRUTE POWER HOWEVER DISGUISED. 
'CIVILIZATION INVOLVES SUBJECTION OF FORCE TO REASON, AND THE AGENCY OF
THIS SUBJECTION IS LAW.'  (POUND, THE FUTURE OF LAW (1937) 47 YALE L.J.
1, 13.)  THE CONCEPTION OF A GOVERNMENT BY LAWS DOMINATED THE THOUGHTS
OF THOSE WHO FOUNDED THIS NATION AND DESIGNED ITS CONSTITUTION,
ALTHOUGH THEY KNEW AS WELL AS THE BELITTLERS OF THE CONCEPTION THAT
LAWS HAVE TO BE MADE, INTERPRETED AND ENFORCED BY MEN.  TO THAT END,
THEY SET APART A BODY OF MEN, WHO WERE TO BE THE DEPOSITORIES OF LAW,
WHO BY THEIR DISCIPLINED TRAINING AND CHARACTER AND BY WITHDRAWAL FROM
THE USUAL TEMPTATIONS OF PRIVATE INTEREST MAY REASONABLY BE EXPECTED TO
BE 'AS FREE, IMPARTIAL, AND INDEPENDENT AS THE LOT OF HUMANITY WILL
ADMIT.'  SO STRONGLY WERE THE FRAMERS OF THE CONSTITUTION BENT ON
SECURING A REIGN OF LAW THAT THEY ENDOWED THE JUDICIAL OFFICE WITH
EXTRAORDINARY SAFEGUARDS AND PRESTIGE.  NO ONE, NO MATTER HOW EXALTED
HIS PUBLIC OFFICE OR HOW RIGHTEOUS HIS PRIVATE MOTIVE, CAN BE JUDGE IN
HIS OWN CASE.  THAT IS WHAT COURTS ARE FOR."  UNITED STATES V. UNITED
MINE WORKERS, 330 U.S. 258, 307-309 (CONCURRING OPINION). 

THE DUTY TO ABSTAIN FROM RESISTANCE TO "THE SUPREME LAW OF THE LAND,"
U.S. CONST., ART. VI, PARA. 2, AS DECLARED BY THE ORGAN OF OUR
GOVERNMENT FOR ASCERTAINING IT, DOES NOT REQUIRE IMMEDIATE APPROVAL OF
IT NOR DOES IT DENY THE RIGHT OF DISSENT.  CRITICISM NEED NOT BE
STILLED.  ACTIVE OBSTRUCTION OR DEFIANCE IS BARRED.  OUR KIND OF
SOCIETY CANNOT ENDURE IF THE CONTROLLING AUTHORITY OF THE LAW AS
DERIVED FROM THE CONSTITUTION IS NOT TO BE THE TRIBUNAL SPECIALLY
CHARGED WITH THE DUTY OF ASCERTAINING AND DECLARING WHAT IS "THE
SUPREME LAW OF THE LAND."  (SEE PRESIDENT ANDREW JACKSON'S MESSAGE TO
CONGRESS OF JANUARY 16, 1833, II RICHARDSON, MESSAGES AND PAPERS OF THE
PRESIDENTS (1896 ED.), 610, 623.)  PARTICULARLY IS THIS SO WHERE THE
DECLARATION OF WHAT "THE SUPREME LAW" COMMANDS ON AN UNDERLYING MORAL
ISSUE IS NOT THE DUBIOUS PRONOUNCEMENT OF A GRAVELY DIVIDED COURT BUT
IS THE UNANIMOUS CONCLUSION OF A LONG-MATURED DELIBERATIVE PROCESS. 
THE CONSTITUTION IS NOT THE FORMULATION OF THE MERELY PERSONAL VIEWS OF
THE MEMBERS OF THIS COURT, NOR CAN ITS AUTHORITY BE REDUCED TO THE
CLAIM THAT STATE OFFICIALS ARE ITS CONTROLLING INTERPRETERS.  LOCAL
CUSTOMS, HOWEVER HARDENED BY TIME, ARE NOT DECREED IN HEAVEN.  HABITS
AND FEELINGS THEY ENGENDER MAY BE COUNTERACTED AND MODERATED. 
EXPERIENCE ATTESTS THAT SUCH LOCAL HABITS AND FEELINGS WILL YIELD,
GRADUALLY THOUGH THIS BE, TO LAW AND EDUCATION.  AND EDUCATIONAL
INFLUENCES ARE EXERTED NOT ONLY BE EXPLICIT TEACHING.  THEY VIGOROUSLY
FLOW FROM THE FRUITFUL EXERCISE OF THE RESPONSIBILITY OF THOSE CHARGED
WITH POLITICAL OFFICIAL POWER AND FROM THE ALMOST UNCONSCIOUSLY
TRANSFORMING ACTUALITIES OF LIVING UNDER LAW.    THE PROCESS OF ENDING
UNCONSTITUTIONAL EXCLUSION OF PUPILS FROM THE COMMON SCHOOL SYSTEM -
"COMMON" MEANING SHARED ALIKE - SOLELY BECAUSE OF COLOR IS NO DOUBT NOT
AN EASY, OVERNIGHT TASK IN A FEW STATES WHERE A DRASTIC ALTERATION IN
THE WAYS OF COMMUNITIES IS INVOLVED.  DEEP EMOTIONS HAVE, NO DOUBT,
BEEN STIRRED.  THEY WILL NOT BE CALMED BY LETTING VIOLENCE LOOSE -
VIOLENCE AND DEFIANCE EMPLOYED AND ENCOURAGED BY THOSE UPON WHOM THE
DUTY OF LAW OBSERVANCE SHOULD HAVE THE STRONGEST CLAIM - NOR BY
SUBMITTING TO IT UNDER WHATEVER GUISE EMPLOYED.  ONLY THE CONSTRUCTIVE
USE OF TIME WILL ACHIEVE WHAT AN ADVANCED CIVILIZATION DEMANDS AND THE
CONSTITUTION CONFIRMS. 

FOR CARRYING OUT THE DECISION THAT COLOR ALONE CANNOT BAR A CHILD
FROM A PUBLIC SCHOOL, THIS COURT HAS RECOGNIZED THE DIVERSITY OF
CIRCUMSTANCES IN LOCAL SCHOOL SITUATIONS.  BUT IS IT A REASONABLE HOPE
THAT THE NECESSARY ENDEAVORS FOR SUCH ADJUSTMENT WILL BE FURTHERED,
THAT RACIAL FRICTIONS WILL BE AMELIORATED, BY A REVERSAL OF THE PROCESS
AND INTERRUPTING EFFECTIVE MEASURES TOWARD THE NECESSARY GOAL?  THE
PROGRESS THAT HAS BEEN MADE IN RESPECTING THE CONSTITUTIONAL RIGHTS OF
THE NEGRO CHILDREN, ACCORDING TO THE GRADUATED PLAN SANCTIONED BY THE
TWO LOWER COURTS, WOULD HAVE TO BE RETRACED, PERHAPS WITH EVEN GREATER
DIFFICULTY BECAUSE OF DEFERENCE TO FORCIBLE RESISTANCE.  IT WOULD HAVE
TO BE RETRACED AGAINST THE SEEMINGLY VINDICATED FEELING OF THOSE WHO
ACTIVELY SOUGHT TO BLOCK THAT PROGRESS.  IS THERE NOT THE STRONGEST
REASON FOR CONCLUDING THAT TO ACCEDE TO THE BOARD'S REQUEST, ON THE
BASIS OF THE CIRCUMSTANCES THAT GAVE RISE TO IT, FOR A SUSPENSION OF
THE BOARD'S NON-SEGREGATION PLAN, WOULD BE BUT THE BEGINNING OF A
SERIES OF DELAYS CALCULATED TO NULLIFY THIS COURT'S ADAMANT DECISIONS
IN THE BROWN CASE THAT THE CONSTITUTION PRECLUDES COMPULSORY
SEGREGATION BASED ON COLOR IN STATE-SUPPORTED SCHOOLS? 

THAT THE RESPONSIBILITY OF THOSE WHO EXERCISE POWER IN A DEMOCRATIC
GOVERNMENT IS NOT TO REFLECT INFLAMED PUBLIC FEELING BUT TO HELP FORM
ITS UNDERSTANDING, IS ESPECIALLY TRUE WHEN THEY ARE CONFRONTED WITH A
PROBLEM LIKE A RACIALLY DISCRIMINATING PUBLIC SCHOOL SYSTEM.  THIS IS
THE LESSON TO BE DRAWN FROM THE HEARTENING EXPERIENCE IN ENDING
ENFORCED RACIAL SEGREGATION IN THE PUBLIC SCHOOLS IN CITIES WITH NEGRO
POPULATIONS OF LARGE PROPORTIONS.  COMPLIANCE WITH DECISIONS OF THIS
COURT, AS THE CONSTITUTIONAL ORGAN OF THE SUPREME LAW OF THE LAND, HAS
OFTEN, THROUGHOUT OUR HISTORY, DEPENDED ON ACTIVE SUPPORT BY STATE AND
LOCAL AUTHORITIES.  IT PRESUPPOSES SUCH SUPPORT.  TO WITHHOLD IT, AND
INDEED TO USE POLITICAL POWER TO TRY TO PARALYZE THE SUPREME LAW,
PRECLUDES THE MAINTENANCE OF OUR FEDERAL SYSTEM AS WE HAVE KNOWN AND
CHERISHED IT FOR ONE HUNDRED AND SEVENTY YEARS. 

LINCOLN'S APPEAL TO "THE BETTER ANGELS OF OUR NATURE" FAILED TO AVERT
A FRATRICIDAL WAR.  BUT THE COMPASSIONATE WISDOM OF LINCOLN'S FIRST AND
SECOND INAUGURALS BEQUEATHED TO THE UNION, CEMENTED WITH BLOOD, A MORAL
HERITAGE WHICH, WHEN DRAWN UPON IN TIMES OF STRESS AND STRIFE, IS SURE
TO FIND SPECIFIC WAYS AND MEANS TO SURMOUNT DIFFICULTIES THAT MAY
APPEAR TO BE INSURMOUNTABLE. 
..END :












WIENER V. UNITED STATES 357 U.S. 349 


NO. 52.  ARGUED NOVEMBER 18, 1957 - DECIDED JUNE 30, 1958 - 135 CT. CL.
827, 142 F. SUPP. 910, REVERSED. 


PETITIONER WAS A MEMBER OF THE WAR CLAIMS COMMISSION CREATED BY
CONGRESS "TO RECEIVE AND ADJUDICATE ACCORDING TO LAW" CLAIMS FOR
COMPENSATING INTERNEES, PRISONERS OF WAR AND RELIGIOUS ORGANIZATIONS
WHO SUFFERED PERSONAL INJURY OR PROPERTY DAMAGE AT THE HANDS OF THE
ENEMY IN CONNECTION WITH WORLD WAR II.  THE COMMISSION'S DETERMINATIONS
WERE TO BE "FINAL" AND "NOT SUBJECT TO REVIEW BY ANY OTHER OFFICIAL OF
THE UNITED STATES OR BY ANY COURT."  THE COMMISSIONERS' TERMS WERE TO
EXPIRE WITH THE LIFE OF THE COMMISSION, AND THERE WAS NO PROVISION FOR
REMOVAL OF A COMMISSIONER.  APPOINTED BY PRESIDENT TRUMAN AND CONFIRMED
BY THE SENATE, PETITIONER WAS REMOVED BY PRESIDENT EISENHOWER BEFORE
THE EXPIRATION OF THE LIFE OF THE COMMISSION, ON THE GROUND THAT THE
ACT SHOULD BE ADMINISTERED "WITH PERSONNEL OF MY OWN SELECTION." 
PETITIONER SUED IN THE COURT OF CLAIMS TO RECOVER HIS SALARY AS A
COMMISSIONER FROM THE DATE OF HIS REMOVAL TO THE LAST DAY OF THE
COMMISSION'S EXISTENCE.  HELD:  THE PRESIDENT HAD NO POWER UNDER THE
CONSTITUTION OR THE ACT TO REMOVE A MEMBER OF THIS ADJUDICATORY
COMMISSION, AND THE COURT OF CLAIMS ERRED IN DISMISSING PETITIONER'S
SUIT.  PP. 349-356. 

WIENER V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR BACK PAY, BASED ON PETITIONER'S ALLEGED ILLEGAL
REMOVAL AS A MEMBER OF THE WAR CLAIMS COMMISSION.  THE FACTS ARE NOT IN
DISPUTE.  BY THE WAR CLAIMS ACT OF 1948, 62 STAT. 1240, CONGRESS
ESTABLISHED THAT COMMISSION WITH "JURISDICTION TO RECEIVE AND
ADJUDICATE ACCORDING TO LAW," SEC. 3, CLAIMS FOR COMPENSATING
INTERNEES, PRISONERS OF WAR, AND RELIGIOUS ORGANIZATIONS, SECS. 5, 6
AND 7, WHO SUFFERED PERSONAL INJURY OR PROPERTY DAMAGE AT THE HANDS OF
THE ENEMY IN CONNECTION WITH WORLD WAR II.  THE COMMISSION WAS TO BE
COMPOSED OF THREE PERSONS, AT LEAST TWO OF WHOM WERE TO BE MEMBERS OF
THE BAR, TO BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND
CONSENT OF THE SENATE.  THE COMMISSION WAS TO WIND UP ITS AFFAIRS NOT
LATER THAN THREE YEARS AFTER THE EXPIRATION OF THE TIME FOR FILING
CLAIMS, ORIGINALLY LIMITED TO TWO YEARS BUT EXTENDED BY SUCCESSIVE
LEGISLATION FIRST TO MARCH 1, 1951, 63 STAT. 112, AND LATER TO MARCH
31, 1952, 65 STAT. 28.  THIS LIMIT ON THE COMMISSION'S LIFE WAS THE
MODE BY WHICH THE TENURE OF THE COMMISSIONERS WAS DEFINED, AND CONGRESS
MADE NO PROVISION FOR REMOVAL OF A COMMISSIONER. 

HAVING BEEN DULY NOMINATED BY PRESIDENT TRUMAN, THE PETITIONER WAS
CONFIRMED ON JUNE 2, 1950, AND TOOK OFFICE ON JUNE 8, FOLLOWING.  ON
HIS REFUSAL TO HEED A REQUEST FOR HIS RESIGNATION, HE WAS, ON DECEMBER
10, 1953, REMOVED BY PRESIDENT EISENHOWER IN THE FOLLOWING TERMS:  "I
REGARD IT AS IN THE NATIONAL INTEREST TO COMPLETE THE ADMINISTRATION OF
THE WAR CLAIMS ACT OF 1948, AS AMENDED, WITH PERSONNEL OF MY OWN
SELECTION."  THE FOLLOWING DAY, THE PRESIDENT MADE RECESS APPOINTMENTS
TO THE COMMISSION, INCLUDING PETITIONER'S POST.  AFTER CONGRESS
ASSEMBLED, THE PRESIDENT, ON FEBRUARY 15, 1954, SENT THE NAMES OF THE
NEW APPOINTEES TO THE SENATE.  THE SENATE HAD NOT CONFIRMED THESE
NOMINATIONS WHEN THE COMMISSION WAS ABOLISHED, JULY 1, 1954, BY
REORGANIZATION PLAN NO. 1 OF 1954, 68 STAT. 1279, ISSUED PURSUANT TO
THE REORGANIZATION ACT OF 1949, 63 STAT. 203.  THEREUPON, PETITIONER
BROUGHT THIS PROCEEDING IN THE COURT OF CLAIMS FOR RECOVERY OF HIS
SALARY AS A WAR CLAIMS COMMISSIONER FROM DECEMBER 10, 1953, THE DAY OF
HIS REMOVAL BY THE PRESIDENT, TO JUNE 30, 1954, THE LAST DAY OF THE
COMMISSION'S EXISTENCE.  A DIVIDED COURT OF CLAIMS DISMISSED THE
PETITION, 135 CT. CL. 827, 142 F. SUPP. 910.  WE BROUGHT THE CASE HERE,
352 U.S. 980, BECAUSE IT PRESENTS A VARIANT OF THE CONSTITUTIONAL ISSUE
DECIDED IN HUMPHREY'S EXECUTOR V. UNITED STATES, 295 U.S. 602.* 

*AN EARLIER QUO WARRANTO PROCEEDING INITIATED BY PETITIONER WAS
DISMISSED; AN APPEAL FROM THIS JUDGMENT WAS DISMISSED AS MOOT BY
STIPULATION OF THE PARTIES.  THE GOVERNMENT'S CONTENTION THAT THE
JUDGMENT ESTOPS PETITIONER FROM RELITIGATING CERTAIN ISSUES IN THE
PRESENT PROCEEDING DOES NOT, IN THE SPECIAL CIRCUMSTANCES PRESENTED ON
THIS RECORD, CALL FOR CONSIDERATION ON THE MERITS.  IT WAS NOT URGED,
AS IN THE PARTICULAR SITUATION IT SHOULD HAVE BEEN, AS A "GROUND WHY
THE CAUSE SHOULD NOT BE REVIEWED BY THIS COURT."  RULE 24(1) OF THE
REVISED RULES OF THE SUPREME COURT OF THE UNITED STATES.  IN THUS
DISPOSING OF THE MATTER, WE DO NOT MEAN TO IMPLY ANY SUPPORT ON THE
MERITS OF THE GOVERNMENT'S CLAIM. 

CONTROVERSY PERTAINING TO THE SCOPE AND LIMITS OF THE PRESIDENT'S
POWER OF REMOVAL FILLS A THICK CHAPTER OF OUR POLITICAL AND JUDICIAL
HISTORY.  THE LONG STRETCHES OF ITS HISTORY, BEGINNING WITH THE VERY
FIRST CONGRESS, WITH EARLY ECHOES IN THE REPORTS OF THIS COURT, WERE
LABORIOUSLY TRAVERSED IN MYERS V. UNITED STATES, 272 U.S. 52, AND NEED
NOT BE RETRACED.  PRESIDENT ROOSEVELT'S RELIANCE UPON THE
PRONOUNCEMENTS OF THE COURT IN THAT CASE IN REMOVING A MEMBER OF THE
FEDERAL TRADE COMMISSION ON THE GROUND THAT "THE AIMS AND PURPOSES OF
THE ADMINISTRATION WITH RESPECT TO THE WORK OF THE COMMISSION CAN BE
CARRIED OUT MOST EFFECTIVELY WITH PERSONNEL OF MY OWN SELECTION"
REFLECTED CONTEMPORANEOUS PROFESSIONAL OPINION REGARDING THE
SIGNIFICANCE OF THE MYERS DECISION.  SPEAKING THROUGH A CHIEF JUSTICE
WHO HIMSELF HAD BEEN PRESIDENT, THE COURT DID NOT RESTRICT ITSELF TO
THE IMMEDIATE ISSUE BEFORE IT, THE PRESIDENT'S INHERENT POWER TO REMOVE
A POSTMASTER, OBVIOUSLY AN EXECUTIVE OFFICIAL.  AS OF SET PURPOSE AND
NOT BY WAY OF PARENTHETIC CASUALNESS, THE COURT ANNOUNCED THAT THE
PRESIDENT HAD INHERENT CONSTITUTIONAL POWER OF REMOVAL ALSO OF
OFFICIALS WHO HAVE "DUTIES OF A QUASI-JUDICIAL CHARACTER  ...  WHOSE
DECISIONS AFTER HEARING AFFECT INTERESTS OF INDIVIDUALS, THE DISCHARGE
OF WHICH THE PRESIDENT CAN NOT IN A PARTICULAR CASE PROPERLY INFLUENCE
OR CONTROL."  MYERS V. UNITED STATES, SUPRA, AT 135.  THIS VIEW OF
PRESIDENTIAL POWER WAS DEEMED TO FLOW FROM HIS "CONSTITUTIONAL DUTY OF
SEEING THAT THE LAWS BE FAITHFULLY EXECUTED."  IBID. 

THE ASSUMPTION WAS SHORT-LIVED THAT THE MYERS CASE RECOGNIZED THE
PRESIDENT'S INHERENT CONSTITUTIONAL POWER TO REMOVE OFFICIALS, NO
MATTER WHAT THE RELATION OF THE EXECUTIVE TO THE DISCHARGE OF THEIR
DUTIES AND NO MATTER WHAT RESTRICTIONS CONGRESS MAY HAVE IMPOSED
REGARDING THE NATURE OF THEIR TENURE.  THE VERSATILITY OF CIRCUMSTANCES
OFTEN MOCKS A NATURAL DESIRE FOR DEFINITIVENESS.  WITHIN LESS THAN TEN
YEARS A UNANIMOUS COURT, IN HUMPHREY'S EXECUTOR V. UNITED STATES, 295
U.S. 602, NARROWLY CONFINED THE SCOPE OF THE MYERS DECISION TO INCLUDE
ONLY "ALL PURELY EXECUTIVE OFFICERS."  295 U.S., AT 628.  THE COURT
EXPLICITLY "DISAPPROVED" THE EXPRESSIONS IN MYERS SUPPORTING THE
PRESIDENT'S INHERENT CONSTITUTIONAL POWER TO REMOVE MEMBERS OF QUASI
JUDICIAL BODIES.   295 U.S., AT 626-627.  CONGRESS HAD GIVEN MEMBERS OF
THE FEDERAL TRADE COMMISSION A SEVEN-YEAR TERM AND ALSO PROVIDED FOR
THE REMOVAL OF A COMMISSIONER BY THE PRESIDENT FOR INEFFICIENCY,
NEGLECT OF DUTY OR MALFEASANCE IN OFFICE.  IN THE PRESENT CASE,
CONGRESS PROVIDED FOR A TENURE DEFINED BY THE RELATIVELY SHORT PERIOD
OF TIME DURING WHICH THE WAR CLAIMS COMMISSION WAS TO OPERATE - THAT
IS, IT WAS TO WIND UP NOT LATER THAN THREE YEARS AFTER THE EXPIRATION
OF THE TIME FOR FILING CLAIMS.  BUT NOTHING WAS SAID IN THE ACT ABOUT
REMOVAL. 

THIS IS ANOTHER INSTANCE IN WHICH THE MOST APPROPRIATE LEGAL
SIGNIFICANCE MUST BE DRAWN FROM CONGRESSIONAL FAILURE OF EXPLICITNESS. 
NECESSARILY THIS IS A PROBLEM IN PROBABILITIES.  WE START WITH ONE
CERTAINTY.  THE PROBLEM OF THE PRESIDENT'S POWER TO REMOVE MEMBERS OF
AGENCIES ENTRUSTED WITH DUTIES OF THE KIND WITH WHICH THE WAR CLAIMS
COMMISSION WAS CHARGED WAS WITHIN THE LIVELY KNOWLEDGE OF CONGRESS. 
FEW CONTESTS BETWEEN CONGRESS AND THE PRESIDENT HAVE SO RECURRINGLY HAD
THE ATTENTION OF CONGRESS AS THAT PERTAINING TO THE POWER OF REMOVAL. 
NOT THE LEAST SIGNIFICANT ASPECT OF THE MYERS CASE IS THAT ON THE
COURT'S SPECIAL INVITATION SENATOR GEORGE WHARTON PEPPER, OF
PENNSYLVANIA, PRESENTED THE POSITION OF CONGRESS AT THE BAR OF THIS
COURT. 

HUMPHREY'S CASE WAS A CAUSE CELEBRE - AND NOT LEAST IN THE HALLS OF
CONGRESS.  AND WHAT IS THE ESSENCE OF THE DECISION IN HUMPHREY'S CASE? 
IT DREW A SHARP LINE OF CLEAVAGE BETWEEN OFFICIALS WHO WERE PART OF THE
EXECUTIVE ESTABLISHMENT AND WERE THUS REMOVABLE BY VIRTUE OF THE
PRESIDENT'S CONSTITUTIONAL POWERS, AND THOSE WHO ARE MEMBERS OF A BODY
"TO EXERCISE ITS JUDGMENT WITHOUT THE LEAVE OR HINDRANCE OF ANY OTHER
OFFICIAL OR ANY DEPARTMENT OF THE GOVERNMENT," 295 U.S., AT 625-626, AS
TO WHOM A POWER OF REMOVAL EXISTS ONLY IF CONGRESS MAY FAIRLY BE SAID
TO HAVE CONFERRED IT.  THIS SHARP DIFFERENTIATION DERIVES FROM THE
DIFFERENCE IN FUNCTIONS BETWEEN THOSE WHO ARE PART OF THE EXECUTIVE
ESTABLISHMENT AND THOSE WHOSE TASKS REQUIRE ABSOLUTE FREEDOM FROM
EXECUTIVE INTERFERENCE.  "FOR IT IS QUITE EVIDENT," AGAIN TO QUOTE
HUMPHREY'S EXECUTOR, "THAT ONE WHO HOLDS HIS OFFICE ONLY DURING THE
PLEASURE OF ANOTHER, CANNOT BE DEPENDED UPON TO MAINTAIN AN ATTITUDE OF
INDEPENDENCE AGAINST THE LATTER'S WILL."  295 U.S., AT 629. 

THUS, THE MOST RELIABLE FACTOR FOR DRAWING AN INFERENCE REGARDING THE
PRESIDENT'S POWER OF REMOVAL IN OUR CASE IS THE NATURE OF THE FUNCTION
THAT CONGRESS VESTED IN THE WAR CLAIMS COMMISSION.  WHAT WERE THE
DUTIES THAT CONGRESS CONFIDED TO THIS COMMISSION?  AND CAN THE
INFERENCE FAIRLY BE DRAWN FROM THE FAILURE OF CONGRESS TO PROVIDE FOR
REMOVAL THAT THESE COMMISSIONERS WERE TO REMAIN IN OFFICE AT THE WILL
OF THE PRESIDENT?  FOR SUCH IS THE ASSERTION OF POWER ON WHICH
PETITIONER'S REMOVAL MUST REST.  THE GROUND OF PRESIDENT EISENHOWER'S
REMOVAL OF PETITIONER WAS PRECISELY THE SAME AS PRESIDENT ROOSEVELT'S
REMOVAL OF HUMPHREY.  BOTH PRESIDENTS DESIRED TO HAVE COMMISSIONERS,
ONE ON THE FEDERAL TRADE COMMISSION, THE OTHER ON THE WAR CLAIMS
COMMISSION, "OF MY OWN SELECTION."  THEY WANTED THESE COMMISSIONERS TO
BE THEIR MEN.  THE TERMS OF REMOVAL IN THE TWO CASES ARE IDENTIC AND
EXPRESS THE ASSUMPTION THAT THE AGENCIES OF WHICH THE TWO COMMISSIONERS
WERE MEMBERS WERE SUBJECT IN THE DISCHARGE OF THEIR DUTIES TO THE
CONTROL OF THE EXECUTIVE.  AN ANALYSIS OF THE FEDERAL TRADE COMMISSION
ACT LEFT THIS COURT IN NO DOUBT THAT SUCH WAS NOT THE CONCEPTION OF
CONGRESS IN CREATING THE FEDERAL TRADE COMMISSION.  THE TERMS OF THE
WAR CLAIMS ACT OF 1948 LEAVE NO DOUBT THAT SUCH WAS NOT THE CONCEPTION
OF CONGRESS REGARDING THE WAR CLAIMS COMMISSION. 

THE HISTORY OF THIS LEGISLATION EMPHATICALLY UNDERLINES THIS FACT. 
THE SHORT OF IT IS THAT THE ORIGIN OF THE ACT WAS A BILL, H.R. 4044,
80TH CONG., 1ST SESS., PASSED BY THE HOUSE THAT PLACED THE
ADMINISTRATION OF A VERY LIMITED CLASS OF CLAIMS BY AMERICANS AGAINST
JAPAN IN THE HANDS OF THE FEDERAL SECURITY ADMINISTRATOR AND PROVIDED
FOR A COMMISSION TO INQUIRE INTO AND REPORT UPON OTHER TYPES OF
CLAIMS.  SEE H.R. REP. NO. 976, 80TH CONG., 1ST SESS.  THE FEDERAL
SECURITY ADMINISTRATOR WAS INDUBITABLY AN ARM OF THE PRESIDENT.  WHEN
THE HOUSE BILL REACHED THE SENATE, IT STRUCK OUT ALL BUT THE ENACTING
CLAUSE, REWROTE THE BILL, AND ESTABLISHED A COMMISSION WITH
"JURISDICTION TO RECEIVE AND ADJUDICATE ACCORDING TO LAW" THREE CLASSES
OF CLAIMS, AS DEFINED BY SECS. 5, 6 AND 7.  THE COMMISSION WAS
ESTABLISHED AS AN ADJUDICATING BODY WITH ALL THE PARAPHERNALIA BY WHICH
LEGAL CLAIMS ARE PUT TO THE TEST OF PROOF, WITH FINALITY OF
DETERMINATION "NOT SUBJECT TO REVIEW BY ANY OTHER OFFICIAL OF THE
UNITED STATES OR BY ANY COURT BY MANDAMUS OR OTHERWISE,"  SEC. 11. 
AWARDS WERE TO BE PAID OUT OF A WAR CLAIMS FUND IN THE HANDS OF THE
SECRETARY OF THE TREASURY, WHEREBY SUCH CLAIMS WERE GIVEN EVEN MORE
ASSURED COLLECTABILITY THAN ADHERES TO JUDGMENTS RENDERED IN THE COURT
OF CLAIMS.  SEE S. REP. NO. 1742, 80TH CONG., 2D SESS.  WITH MONOR
AMENDMENT, SEE H.R. CONF. REP. NO. 2439, 80TH CONG., 2D SESS. 10-11,
THIS SENATE BILL BECAME LAW. 

WHEN CONGRESS HAS FOR DISTRIBUTION AMONG AMERICAN CLAIMANTS FUNDS
DERIVED FROM FOREIGN SOURCES, IT MAY PROCEED IN DIFFERENT WAYS. 
CONGRESS MAY APPROPRIATE DIRECTLY; IT MAY UTILIZE THE EXECUTIVE; IT MAY
RESORT TO THE ADJUDICATORY PROCESS.  SEE LA ABRA SILVER MINING CO. V.
UNITED STATES, 175 U.S. 423.  FOR CONGRESS ITSELF TO HAVE MADE
APPROPRIATIONS FOR THE CLAIMS WITH WHICH IT DEALT UNDER THE WAR CLAIMS
ACT WAS NOT PRACTICAL IN VIEW OF THE LARGE NUMBER OF CLAIMANTS AND THE
DIVERSITY IN THE SPECIFIC CIRCUMSTANCES GIVING RISE TO THE CLAIMS.  THE
HOUSE BILL IN EFFECT PUT THE DISTRIBUTION OF THE NARROW CLASS OF CLAIMS
THAT IT ACKNOWLEDGED INTO EXECUTIVE HANDS, BY VESTING THE PROCEDURE IN
THE FEDERAL SECURITY ADMINISTRATOR.  THE FINAL FORM OF THE LEGISLATION,
AS WE HAVE SEEN, LEFT THE WIDENED RANGE OF CLAIMS TO BE DETERMINED BY
ADJUDICATION.  CONGRESS COULD, OF COURSE, HAVE GIVEN JURISDICTION OVER
THESE CLAIMS TO THE DISTRICT COURTS OR TO THE COURT OF CLAIMS.  THE
FACT THAT IT CHOSE TO ESTABLISH A COMMISSION TO "ADJUDICATE ACCORDING
TO LAW" THE CLASSES OF CLAIMS DEFINED IN THE STATUTE DID NOT ALTER THE
INTRINSIC JUDICIAL CHARACTER OF THE TASK WITH WHICH THE COMMISSION WAS
CHARGED.  THE CLAIMS WERE TO BE "ADJUDICATED ACCORDING TO LAW," THAT
IS, ON THE MERITS OF EACH CLAIM, SUPPORTED BY EVIDENCE AND GOVERNING
LEGAL CONSIDERATIONS, BY A BODY THAT WAS "ENTIRELY FREE FROM THE
CONTROL OR COERCIVE INFLUENCE, DIRECT OR INDIRECT," HUMPHREY'S EXECUTOR
V. UNITED STATES, SUPRA, 295 U.S., AT 629, OF EITHER THE EXECUTIVE OR
THE CONGRESS.  IF, AS ONE MUST TAKE FOR GRANTED, THE WAR CLAIMS ACT
PRECLUDED THE PRESIDENT FROM INFLUENCING THE COMMISSION IN PASSING ON A
PARTICULAR CLAIM, A FORTIORI MUST IT BE INFERRED THAT CONGRESS DID NOT
WISH TO HAVE HANG OVER THE COMMISSION THE DAMOCLES' SWORD OF REMOVAL BY
THE PRESIDENT FOR NO REASON OTHER THAN THAT HE PREFERRED TO HAVE ON
THAT COMMISSION MEN OF HIS OWN CHOOSING. 

FOR SUCH IS THIS CASE.  WE HAVE NOT A REMOVAL FOR CAUSE INVOLVING THE
RECTITUDE OF A MEMBER OF AN ADJUDICATORY BODY, NOR EVEN A SUSPENSORY
REMOVAL UNTIL THE SENATE COULD ACT UPON IT BY CONFIRMING THE
APPOINTMENT OF A NEW COMMISSIONER OR OTHERWISE DEALING WITH THE
MATTER.  JUDGING THE MATTER IN ALL THE NAKEDNESS IN WHICH IT IS
PRESENTED, NAMELY, THE CLAIM THAT THE PRESIDENT COULD REMOVE A MEMBER
OF AN ADJUDICATORY BODY LIKE THE WAR CLAIMS COMMISSION MERELY BECAUSE
HE WANTED HIS OWN APPOINTEES ON SUCH A COMMISSION, WE ARE COMPELLED TO
CONCLUDE THAT NO SUCH POWER IS GIVEN TO THE PRESIDENT DIRECTLY BY THE
CONSTITUTION, AND NONE IS IMPLIEDLY CONFERRED UPON HIM BY STATUTE
SIMPLY BECAUSE CONGRESS SAID NOTHING ABOUT IT.  THE PHILOSOPHY OF
HUMPHREY'S EXECUTOR, IN ITS EXPLICIT LANGUAGE AS WELL AS ITS
IMPLICATIONS, PRECLUDES SUCH A CLAIM.    THE JUDGMENT IS REVERSED. 
..END :








NATIONAL LABOR RELATIONS BOARD V. UNITED STEELWORKERS OF AMERICA, CIO
357 U.S. 357 


NO. 81.  ARGUED JANUARY 29, 1958 - DECIDED JUNE 30, 1958* - 100 U.S.
APP. D.C. 170, 243 F.2D 593, REVERSED IN PART, AFFIRMED IN PART AND
CAUSE REMANDED.  - 242 F.2D 669, AFFIRMED. 

*TOGETHER WITH NO. 289, NATIONAL LABOR RELATIONS BOARD V. AVONDALE
MILLS, ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT. 


THESE TWO CASES INVOLVE THE QUESTION WHETHER, IN THE CIRCUMSTANCES, IT
WAS AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC. 8(A)(1) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED, FOR AN EMPLOYER TO ENFORCE AN
OTHERWISE VALID RULE FORBIDDING EMPLOYEES TO ENGAGE IN PRO-UNION
SOLICITATION DURING WORKING HOURS OR TO DISTRIBUTE LITERATURE IN THE
EMPLOYER'S PLANT, WHEN THE EMPLOYER WAS ENGAGING IN ANTI-UNION
SOLICITATION AND WAS COMMITTING OTHER ACTS WHICH CONSTITUTED UNFAIR
LABOR PRACTICES.  IN ONE CASE THE EMPLOYER'S ANTI-UNION CAMPAIGN WAS SO
CONDUCTED AS TO CONSTITUTE AN UNFAIR LABOR PRACTICE.  IN NEITHER CASE
WAS IT SHOWN THAT THE EMPLOYEES OR THE UNION HAD REQUESTED THE EMPLOYER
TO MAKE AN EXCEPTION TO PERMIT PRO-UNION SOLICITATION OR THAT THE NO
SOLICITATION RULE ACTUALLY DIMINISHED THE ABILITY OF THE LABOR
ORGANIZATION INVOLVED TO CARRY ITS MESSAGES TO THE EMPLOYEES.  HELD:
THE RECORDS IN THESE CASES FURNISH NO BASIS FOR FINDINGS THAT
ENFORCEMENT OF THE NO-SOLICITATION RULES CONSTITUTED UNFAIR LABOR
PRACTICES.  PP. 358-365. 

NATIONAL LABOR RELATIONS BOARD V. UNITED STEELWORKERS OF AMERICA, CIO,
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES, ARGUED IN SUCESSION, ARE CONTROLLED BY THE SAME
CONSIDERATIONS AND WILL BE DISPOSED OF IN A SINGLE OPINION.  IN ONE
CASE THE NATIONAL LABOR RELATIONS BOARD RULED THAT IT WAS NOT AN UNFAIR
LABOR PRACTICE FOR AN EMPLOYER TO ENFORCE AGAINST HIS EMPLOYEES A NO
SOLICITATION RULE, IN ITSELF CONCEDEDLY VALID, WHILE THE EMPLOYER WAS
HIMSELF ENGAGED IN ANIT-UNION SOLICITATION IN A CONTEXT OF SEPARATE
UNFAIR LABOR PRACTICES.  THIS RULING WAS REVERSED BY A COURT OF
APPEALS.  (FN1)  IN THE SECOND CASE THE BOARD ON THE BASIS OF SIMILAR
FACTS, EXCEPT THAT THE EMPLOYER'S ANTI-UNION SOLICITATION BY ITSELF
CONSTITUTED A SEPARATE UNFAIR LABOR PRACTICE, FOUND THE ENFORCEMENT OF
THE RULE TO HAVE BEEN AN UNFAIR LABOR PRACTICE, BUT ANOTHER COURT OF
APPEALS DENIED ENFORCEMENT OF THE BOARD'S ORDER.  WE BROUGHT BOTH CASES
HERE BECAUSE OF THE IMPORTANCE OF THE QUESTION THEY PRESENT IN THE
ADMINISTRATION OF THE TAFT-HARTLEY ACT, AND BECAUSE OF THE APPARENT
CONFLICT IN THE DECISIONS IN THE COURTS OF APPEALS.  353 U.S. 921; 355
U.S. 811. 

NO. 81.  - IN APRIL OF 1953 THE RESPONDENT STEELWORKERS INSTITUTED A
CAMPAIGN TO ORGANIZE THE EMPLOYEES OF RESPONDENT NUTONE, INC., A
MANUFACTURER OF ELECTRICAL DEVICES.  IN THE EARLY STAGES OF THE
CAMPAIGN, SUPERVISORY PERSONNEL OF THE COMPANY INTERROGATED EMPLOYEES
AND SOLICITED REPORTS CONCERNING THE ORGANIZATIONAL ACTIVITIES OF OTHER
EMPLOYEES.  SEVERAL EMPLOYEES WERE DISCHARGED; THE BOARD LATER FOUND
THAT THE DISCHARGES HAD BEEN THE RESULT OF THEIR ORGANIZATIONAL
ACTIVITIES.  IN JUNE THE COMPANY BEGAN TO DISTRIBUTE, THROUGH ITS
SUPERVISORY PERSONNEL, LITERATURE THAT, ALTHOUGH NOT COERCIVE, WAS
CLEARLY ANTI-UNION IN TENOR.  IN AUGUST, WHILE CONTINUING TO DISTRIBUTE
SUCH MATERIAL, THE COMPANY ANNOUNCED ITS INTENTION OF ENFORCING ITS
RULE AGAINST EMPLOYEES' POSTING SIGNS OR DISTRIBUTING LITERATURE ON
COMPANY PROPERTY OR SOLICITING OR CAMPAIGNING ON COMPANY TIME.  THE
RULE, ACCORDING TO THESE POSTED ANNOUNCEMENTS, APPLIED TO "ALL
EMPLOYEES - WHETHER THEY ARE FOR OR AGAINST THE UNION."  LATER THE SAME
MONTH A REPRESENTATION ELECTION WAS HELD, WHICH THE STEELWORKERS LOST. 

IN A PROCEEDING BEFORE THE BOARD COMMENCED AT THE INSTANCE OF THE
STEELWORKERS, THE COMPANY WAS CHARGED WITH A NUMBER OF VIOLATIONS OF
THE ACT ALLEGED TO HAVE TAKEN PLACE BOTH BEFORE AND AFTER THE ELECTION,
INCLUDING THE DISCRIMINATORY APPLICATION OF THE NO-SOLICITATION RULE. 
THE BOARD FOUND THAT THE PRE-ELECTION INTERROGATION AND SOLICITATION BY
SUPERVISORY PERSONNEL AND THE DISCHARGE OF EMPLOYEES WERE UNFAIR LABOR
PRACTICES; IT ALSO FOUND THAT THE COMPANY HAD, IN VIOLATION OF THE ACT,
ASSISTED AND SUPPORTED AN EMPLOYEE ORGANIZATION FORMED AFTER THE
ELECTION.  HOWEVER, THE BOARD DISMISSED THE ALLEGATION THAT THE COMPANY
HAD DISCRIMINATORILY ENFORCED ITS NO-SOLICITATION RULE.  112 N.L.R.B.
1153.  THE STEELWORKERS SOUGHT REVIEW OF THIS DISMISSAL IN THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, AND THE
BOARD PETITIONED FOR ENFORCEMENT OF ITS ORDER IN THE SAME COURT.  THE
COURT OF APPEALS CONCLUDED THAT IT WAS AN UNFAIR LABOR PRACTICE FOR THE
COMPANY TO PROHIBIT THE DISTRIBUTION OF ORGANIZATIONAL LITERATURE ON
COMPANY PROPERTY DURING NON-WORKING HOURS WHILE THE COMPANY WAS ITSELF
DISTRIBUTING ANTI-UNION LITERATURE; AND IT DIRECTED THAT THE BOARD'S
ORDER BE MODIFIED ACCORDINGLY AND ENFORCED AS MODIFIED.  100 U.S. APP.
D.C. 170, 243 F.2D 593. 

NO. 289.  - IN THE FALL OF 1954 THE TEXTILE WORKERS CONDUCTED AN
ORGANIZATIONAL CAMPAIGN AT SEVERAL OF THE PLANTS OF RESPONDENT AVONDALE
MILLS.  A NUMBER OF INDIVIDUAL EMPLOYEES WERE CALLED BEFORE SUPERVISORY
PERSONNEL OF THE COMPANY, ON THE GROUND THAT THEY HAD BEEN SOLICITING
UNION MEMBERSHIP, AND INFORMED THAT SUCH SOLICITATION WAS IN VIOLATION
OF PLANT RULES AND WOULD NOT BE TOLERATED IN THE FUTURE.  THE RULE HAD
NOT BEEN PROMULGATED IN WRITTEN FORM, BUT THERE WAS EVIDENCE THAT IT
HAD BEEN PREVIOUSLY INVOKED IN A NON-ORGANIZATIONAL CONTEXT.  DURING
THIS SAME PERIOD, BOTH IN THESE INTERVIEWS CONCERNING THE RULE AND AT
THE EMPLOYEES' PLACES OF WORK, SUPERVISORY PERSONNEL INTERROGATED
EMPLOYEES CONCERNING THEIR ORGANIZATIONAL VIEWS AND ACTIVITIES AND
SOLICITED EMPLOYEES TO WITHDRAW THEIR MEMBERSHIP CARDS FROM THE UNION. 
THIS CONDUCT WAS IN MANY CASES ACCOMPANIED BY THREATS THAT THE MILL
WOULD CLOSE DOWN OR THAT VARIOUS EMPLOYEE BENEFITS WOULD BE LOST IF THE
MILL SHOULD BECOME ORGANIZED.  SUBSEQUENTLY THREE EMPLOYEES, EACH OF
WHOM HAD BEEN INFORMED OF THE NO-SOLICITATION RULE, WERE LAID OFF AND
EVENTUALLY DISCHARGED FOR VIOLATING THE RULE. 

AS A RESULT OF CHARGES FILED WITH THE BOARD BY THE TEXTILE WORKERS, A
COMPLAINT WAS BROUGHT AGAINST THE COMPANY ALLEGING THAT IT HAD
COMMITTED A NUMBER OF UNFAIR LABOR PRACTICES, INCLUDING THE
DISCRIMINATORY INVOCATION OF THE NO-SOLICITATION RULE AND THE DISCHARGE
OF EMPLOYEES FOR ITS VIOLATION.  THE BOARD FOUND THAT THE
INTERROGATION, SOLICITATION AND THREATENING OF EMPLOYEES BY THE
COMPANY'S SUPERVISORY PERSONNEL WERE UNFAIR LABOR PRACTICES.  MOREOVER,
IT FOUND THAT RESORT TO THE NO-SOLICITATION RULE AND DISCHARGE OF THE
THREE EMPLOYEES FOR ITS VIOLATION WERE DISCRIMINATORY AND THEREFORE IN
VIOLATION OF THE ACT; IT FURTHER HELD THAT, EVEN IF THE RULE HAD NOT
BEEN INVOKED DISCRIMINATORILY, THE DISCHARGE OF ONE OF THE EMPLOYEES
HAD RESULTED SOLELY FROM HIS ORGANIZATIONAL ACTIVITIES APART FROM ANY
VIOLATION OF THE RULE AND WAS THEREFORE AN UNFAIR LABOR PRACTICE.  THE
BOARD ORDERED THE CESSATION OF THESE PRACTICES AND THE REINSTATEMENT OF
THE DISCHARGED EMPLOYEES.  115 N.L.R.B. 840.  UPON THE BOARD'S
PETITIONING FOR ENFORCEMENT IN THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT, THE COMPANY CONTESTED ONLY THE PORTIONS OF THE BOARD'S
FINDINGS AND ORDER RELATING TO THE RULE AND THE DISCHARGES.  THE COURT
ENFORCED THE UNCONTESTED PORTIONS OF THE ORDER BUT, FINDING
INSUFFICIENT EVIDENCE OF DISCRIMINATION IN THE APPLICATION OF THE NO
SOLICITATION RULE, DENIED ENFORCEMENT TO THE PORTION OF THE ORDER
RELATING TO THE RULE AND TO TWO OF THE DISCHARGES.  AS TO THE THIRD
DISCHARGE, THE COURT AGREED WITH THE BOARD THAT IT WAS THE RESULT OF
DISCRIMINATION UNRELATED TO A VIOLATION OF THE RULE, AND THE COURT
ENFORCED THE PORTION OF THE BOARD'S ORDER DIRECTING THE EMPLOYEE'S
REINSTATEMENT.  242 F.2D 669. 

EMPLOYER RULES PROHIBITING ORGANIZATIONAL SOLICITATION ARE NOT IN AND
OF THEMSELVES VIOLATIVE OF THE ACT, FOR THEY MAY DULY SERVE PRODUCTION,
ORDER AND DISCIPLINE.  SEE REPUBLIC AVIATION CORP. V. LABOR BOARD, 324
U.S. 793; LABOR BOARD V. BABCOCK & WILCOX CO., 351 U.S. 105.  IN
NEITHER OF THE CASES BEFORE US DID THE PARTY ATTACKING THE ENFORCEMENT
OF THE NO-SOLICITATION RULE CONTEST ITS VALIDITY.  NOR IS THE CLAIM
MADE THAT AN EMPLOYER MAY NOT, UNDER PROPER CIRCUMSTANCES, ENGAGE IN
NON-COERCIVE ANTI-UNION SOLICITATION; INDEED, HIS RIGHT TO DO SO IS
PROTECTED BY THE SO-CALLED "EMPLOYER FREE SPEECH" PROVISION OF SEC.
8(C) OF THE ACT.  (FN2)  CONTRARIWISE, AS BOTH CASES BEFORE US SHOW,
COERCIVE ANTI-UNION SOLICITATION AND OTHER SIMILAR CONDUCT RUN AFOUL OF
THE ACT AND CONSTITUTE UNFAIR LABOR PRACTICES IRRESPECTIVE OF THE
BEARING OF SUCH PRACTICES ON ENFORCEMENT OF A NO-SOLICITATION RULE. 
THE VERY NARROW AND ALMOST ABSTRACT QUESTION HERE DERIVES FROM THE
CLAIM THAT, WHEN THE EMPLOYER HIMSELF ENGAGES IN ANTI-UNION
SOLICITATION THAT IF ENGAGED IN BY EMPLOYEES WOULD CONSTITUTE A
VIOLATION OF THE RULE - PARTICULARLY WHEN HIS SOLICITATION IS COERCIVE
OR ACCOMPANIED BY OTHER UNFAIR LABOR PRACTICES - HIS ENFORCEMENT OF AN
OTHERWISE VALID NO-SOLICITATION RULE AGAINST THE EMPLOYEES IS ITSELF AN
UNFAIR LABOR PRACTICE.  WE ARE ASKED TO RULE THAT THE COINCIDENCE OF
THESE CIRCUMSTANCES NECESSARILY VIOLATES THE ACT, REGARDLESS OF THE WAY
IN WHICH THE PARTICULAR CONTROVERSY AROSE OR WHETHER THE EMPLOYER'S
CONDUCT TO ANY CONSIDERABLE DEGREE CREATED AN IMBALANCE IN THE
OPPORTUNITIES FOR ORGANIZATIONAL COMMUNICATION.  FOR US TO LAY DOWN
SUCH A RULE OF LAW WOULD SHOW INDIFFERENCE TO THE RESPONSIBILITIES
IMPOSED BY THE ACT PRIMARILY ON THE BOARD TO APPRAISE CAREFULLY THE
INTERESTS OF BOTH SIDES OF ANY LABOR-MANAGEMENT CONTROVERSY IN THE
DIVERSE CIRCUMSTANCES OF PARTICULAR CASES AND IN LIGHT OF THE BOARD'S
SPECIAL UNDERSTANDING OF THESE INDUSTRIAL SITUATIONS. 

THERE IS NO INDICATION IN THE RECORD IN EITHER OF THESE CASES THAT
THE EMPLOYEES, OR THE UNION ON THEIR BEHALF, REQUESTED THE EMPLOYER,
HIMSELF ENGAGING IN ANTI-UNION SOLICITATION, TO MAKE AN EXCEPTION TO
THE RULE FOR PRO-UNION SOLICITATION.  THERE IS EVIDENCE IN BOTH CASES
THAT THE EMPLOYERS HAD IN THE PAST MADE EXCEPTIONS TO THEIR RULES FOR
CHARITABLE SOLICITATION.  NOTWITHSTANDING THE CLEAR ANTI-UNION BIAS OF
BOTH EMPLOYERS, IT IS NOT FOR US TO CONCLUDE AS A MATTER OF LAW -
ALTHOUGH IT MIGHT WELL HAVE BEEN OPEN TO THE BOARD TO CONCLUDE AS A
MATTER OF INDUSTRIAL EXPERIENCE - THAT A REQUEST FOR A SIMILAR
QUALIFICATION UPON THE RULE FOR ORGANIZATIONAL SOLICITATION WOULD HAVE
BEEN REJECTED.  CERTAINLY THE EMPLOYER IS NOT OBLIGED VOLUNTARILY AND
WITHOUT ANY REQUEST TO OFFER THE USE OF HIS FACILITIES AND THE TIME OF
HIS EMPLOYEES FOR PRO-UNION SOLICITATION.  HE MAY VERY WELL BE WARY OF
A CHARGE THAT HE IS INTERFERING WITH, OR CONTRIBUTING SUPPORT TO, A
LABOR ORGANIZATION IN VIOLATION OF SEC. 8(A)(2) OF THE ACT.  (FN3) 

NO ATTEMPT WAS MADE IN EITHER OF THESE CASES TO MAKE A SHOWING THAT
THE NO-SOLICITATION RULES TRULY DIMINISHED THE ABILITY OF THE LABOR
ORGANIZATIONS INVOLVED TO CARRY THEIR MESSAGES TO THE EMPLOYEES.  JUST
AS THAT IS A VITAL CONSIDERATION IN DETERMINING THE VALIDITY OF A NO
SOLICITATION RULE, SEE REPUBLIC AVIATION CORP. V. LABOR BOARD, SUPRA,
AT 797-798; LABOR BOARD V. BABCOCK & WILCOX CO., SUPRA, AT 112, IT IS
HIGHLY RELEVANT IN DETERMINING WHETHER A VALID RULE HAS BEEN FAIRLY
APPLIED.  OF COURSE THE RULES HAD THE EFFECT OF CLOSING OFF ONE CHANNEL
OF COMMUNICATION; BUT THE TAFT-HARTLEY ACT DOES NOT COMMAND THAT LABOR
ORGANIZATIONS AS A MATTER OF ABSTRACT LAW, UNDER ALL CIRCUMSTANCES, BE
PROTECTED IN THE USE OF EVERY POSSIBLE MEANS OF REACHING THE MINDS OF
INDIVIDUAL WORKERS, NOR THAT THEY ARE ENTITLED TO USE A MEDIUM OF
COMMUNICATION SIMPLY BECAUSE THE EMPLOYER IS USING IT.  CF.  BONWIT
TELLER, INC., V. LABOR BOARD, 197 F.2D 640, 646; LABOR BOARD V. F.W.
WOOLWORTH CO., 214 F.2D 78, 84 (CONCURRING OPINION).  NO SUCH
MECHANICAL ANSWERS WILL AVAIL FOR THE SOLUTION OF THIS NON-MECHANICAL,
COMPLEX PROBLEM IN LABOR-MANAGEMENT RELATIONS.  IF, BY VIRTUE OF THE
LOCATION OF THE PLANT AND OF THE FACILITIES AND RESOURCES AVAILABLE TO
THE UNION, THE OPPORTUNITIES FOR EFFECTIVELY REACHING THE EMPLOYEES
WITH A PRO-UNION MESSAGE, IN SPITE OF A NO-SOLICITATION RULE, ARE AT
LEAST AS GREAT AS THE EMPLOYER'S ABILITY TO PROMOTE THE LEGALLY
AUTHORIZED EXPRESSION OF HIS ANTI-UNION VIEWS, THERE IS NO BASIS FOR
INVALIDATING THESE "OTHERWISE VALID" RULES.  THE BOARD, IN DETERMINING
WHETHER OR NOT THE ENFORCEMENT OF SUCH A RULE IN THE CIRCUMSTANCES OF
AN INDIVIDUAL CASE IS AN UNFAIR LABOR PRACTICE, MAY FIND RELEVANT
ALTERNATIVE CHANNELS AVAILABLE FOR COMMUNICATIONS ON THE RIGHT TO
ORGANIZE.  WHEN THIS IMPORTANT ISSUE IS NOT EVEN RAISED BEFORE THE
BOARD AND NO EVIDENCE BEARING ON IT ADDUCED, THE CONCRETE BASIS FOR
APPRAISING THE SIGNIFICANCE OF THE EMPLOYER'S CONDUCT IS WANTING. 

WE DO NOT AT ALL IMPLY THAT THE ENFORCEMENT OF A VALID NO
SOLICITATION RULE BY AN EMPLOYER WHO IS AT THE SAME TIME ENGAGING IN
ANTI-UNION SOLICITATION MAY NOT CONSTITUTE AN UNFAIR LABOR PRACTICE. 
ALL WE HOLD IS THAT THERE MUST BE SOME BASIS, IN THE ACTUALITIES OF
INDUSTRIAL RELATIONS, FOR SUCH A FINDING.  THE RECORDS IN BOTH CASES -
THE ISSUES RAISED IN THE PROCEEDINGS - ARE BARREN OF THE INGREDIENTS
FOR SUCH A FINDING.  ACCORDINGLY THE JUDGMENT IN NO. 81 IS REVERSED,
INSOFAR AS IT SETS ASIDE AND REQUIRES THE BOARD TO MODIFY ITS ORDER,
AND THE CAUSE IS REMANDED TO THE COURT OF APPEALS FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION; IN ALL OTHER RESPECTS, IT IS AFFIRMED. 
THE JUDGMENT IN NO. 289 IS AFFIRMED.  IT IS SO ORDERED. 

FN1  THE STATUTORY BASIS FOR THE DECISION THAT THIS CONDUCT
CONSTITUTED AN UNFAIR LABOR PRACTICE WAS SEC. 8(A)(1) OF THE NATIONAL
LABOR RELATIONS ACT, 49 STAT. 449, 452, AS AMENDED BY 61 STAT. 136,
140, 29 U.S.C. SEC. 158(A)(1), WHICH PROVIDES: 

"(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 7; ...  ." 

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 PURPOSES OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION, AND SHALL ALSO HAVE THE
RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES EXCEPT TO THE
EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN AGREEMENT REQUIRING
MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT AS
AUTHORIZED IN SECTION 8(A)(3)."   FN2  49 STAT. 449, 452, AS AMENDED BY
61 STAT. 136, 142, 29 U.S.C. SEC. 158(C): 

"THE EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION, OR THE
DISSEMINATION THEREOF, WHETHER IN WRITTEN, PRINTED, GRAPHIC, OR VISUAL
FORM, SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR PRACTICE
UNDER ANY OF THE PROVISIONS OF THIS ACT, IF SUCH EXPRESSION CONTAINS NO
THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT." 

FN3  49 STAT. 449, 452, AS AMENDED BY 61 STAT. 136, 140, 29 U.S.C.
SEC. 158(A)(2).    MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS WOULD
AFFIRM THE JUDGMENT IN NO. 81 FOR THE REASONS SET FORTH IN THE OPINION
OF THE COURT OF APPEALS, 100 U.S. APP. D.C. 170, 243 F.2D 593. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS JOIN IN THE DISSENT IN NO.
289, LABOR BOARD V. AVONDALE MILLS. 

MR. CHIEF JUSTICE WARREN DISSENTING IN PART AND CONCURRING IN PART. 

THESE TWO CASES CONCERN THE ISSUE OF WHETHER THE ENFORCEMENT OF
COMPANY RULES PREVENTING UNION SOLICITATION OR DISTRIBUTION IS AN
UNFAIR LABOR PRACTICE WHEN CONCURRENT WITH THIS ENFORCEMENT THE
EMPLOYER EMBARKS ON A PROGRAM OF ADVOCACY AGAINST THE UNION.  CONTRARY
TO WHAT IS STATED IN THE OPINION OF THE COURT, I DO NOT BELIEVE THAT
BOTH THESE CASES ARE CONTROLLED BY THE SAME CONSIDERATIONS.  THE
PIVOTAL DISTINCTION IS THAT IN LABOR BOARD V. AVONDALE MILLS THE
EMPLOYER'S ANTIUNION ACTIVITIES WERE COERCIVE IN NATURE, WHILE IN LABOR
BOARD V. UNITED STEELWORKERS THEY WERE NOT.  I DISSENT FROM JUDGMENT IN
NO. 289, AVONDALE MILLS, AND CONCUR IN THE RESULT IN NO. 81, UNITED
STEELWORKERS. 

IN AVONDALE MILLS THIS COURT AFFIRMS THE JUDGMENT OF THE COURT OF
APPEALS, WHICH REFUSED TO ENFORCE THAT PORTION OF AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD WHICH HELD THAT ENFORCEMENT OF THE
COMPANY'S RULE AGAINST SOLICITATION ON THE PREMISES DURING WORKING
HOURS WAS AN UNFAIR LABOR PRACTICE CONTRARY TO SECTION 8(A)(1) OF THE
NATIONAL LABOR RELATIONS ACT.  I CANNOT AGREE WITH THE CONCLUSION OF
THE MAJORITY THAT THE RECORD IS INSUFFICIENT TO SUSTAIN THE ACTION OF
THE BOARD.  THEIR CONCLUSION DEPENDS ON TWO CIRCUMSTANCES.  THE FIRST
IS THE FAILURE OF THE UNION OR THE EMPLOYEES TO REQUEST THE EMPLOYER
NOT TO ENFORCE HIS ANTISOLICITATION RULE DURING THE UNION ORGANIZING
CAMPAIGN.  THIS IS A SLENDER REED.  UNION MEMBERSHIP CARDS WERE FIRST
DISTRIBUTED TO EMPLOYEES ON NOVEMBER 10, 1954.  ON THE VERY NEXT DAY
CERTAIN EMPLOYEES WERE SUMMONED TO THE OFFICE OF A MANAGEMENT
REPRESENTATIVE, WHO READ THE FOLLOWING STATEMENT: 

"IT HAS COME TO OUR ATTENTION THAT YOU ARE ATTEMPTING TO SOLICIT
UNION MEMBERSHIP IN THIS PLANT DURING WORKING HOURS, WHILE THE
EMPLOYEES THAT YOU ARE ATTEMPTING TO SOLICIT ARE AT WORK.  THIS IS A
VIOLATION OF PLANT RULES AND ANY FUTURE INSTANCES OF THIS SORT WILL
RESULT IN PROMPT DISMISSAL." 

IMMEDIATELY THEREAFTER THE COMPANY'S SUPERVISORY PERSONNEL ENGAGED IN
A SERIES OF PERSONAL CONFRONTATIONS WITH UNION MEMBERS AND OTHER
EMPLOYEES, THREATENING LOSS OF JOBS AND OTHER BENEFITS IN CASE THE
ORGANIZING CAMPAIGN CONTINUED OR THE PLANT BECAME UNIONIZED. 
FURTHERMORE, THERE WAS SUBSTANTIAL EVIDENCE FROM WHICH THE BOARD WAS
ABLE TO CONCLUDE THAT PRIOR TO NOVEMBER 11, 1954, THERE WAS IN FACT NO
RULE AGAINST SOLICITATION ON THE PREMISES DURING WORKING HOURS AND THAT
THE RULE WAS INVOKED SOLELY AS AN ANTIUNION MEASURE.  NONE OF THESE
CONCLUSIONS WAS DISTURBED BY THE COURT BELOW, WHICH MERELY HELD THAT
THE INVOCATION OF THE RULE UNDER THESE FACTS WAS PART OF THE EMPLOYER'S
RIGHT TO OPPOSE THE UNION.  THE MAJORITY THUS ATTACHES SIGNIFICANCE,
WHERE THE BOARD DID NOT, TO THE FACT THAT THE UNION FAILED TO REQUEST
THE COMPANY TO GRANT FOR THE UNION'S BENEFIT AN EXCEPTION TO A RULE
THAT WAS PROMULGATED TO KEEP THE UNION OUT. 

THE SECOND CIRCUMSTANCE ON WHICH THE MAJORITY RELIES IS THE FAILURE
OF THE BOARD TO MAKE FINDINGS THAT REASONABLE ALTERNATIVES WERE NOT
OPEN TO THE UNION IN THE FACE OF THE NO-SOLICITATION RULE.  ADMITTEDLY,
EVIDENCE AND FINDINGS OF THIS NATURE WERE ELEMENTS IN CASES WHERE THE
VALIDITY OF EMPLOYER NO-SOLICITATION AND NO-DISTRIBUTION RULES WAS IN
ISSUE.  SEE LABOR BOARD V. BABCOCK & WILCOX CO., 351 U.S. 105; REPUBLIC
AVIATION CORP. V. LABOR BOARD, 324 U.S. 793.  HOWEVER, THERE HAS
HERETOFORE BEEN NO INDICATION THAT SUCH EVIDENCE AND FINDINGS WERE
INDISPENSABLE ELEMENTS TO EVERY CASE IN WHICH THESE EMPLOYER RULES WERE
BEING EXAMINED.  (FN1)  IN CONTRAST TO BABCOCK AND REPUBLIC AVIATION WE
ARE NOT CONCERNED HERE WITH THE VALIDITY OF THESE RULES PER SE.  THE NO
SOLICITATION RULE UNDER EXAMINATION HERE MAY WELL BE VALID IF FAIRLY
APPLIED.  BUT THE BOARD HELD THAT IT WAS NOT FAIRLY APPLIED ON ACCOUNT
OF ITS LINK TO THE COMPANY'S CAMPAIGN OF COERCION, AND THE EVIDENCE AND
FINDINGS ON THAT ISSUE ARE FAR MORE RELEVANT TO THIS CASE THAN A
DISCUSSION OF THE SITE OF THE PLANT, THE NATURE OF THE SURROUNDING
AREA, AND THE PLACES OF RESIDENCE OF THE WORKERS. 

WHILE PRAISING "THE BOARD'S SPECIAL UNDERSTANDING OF THESE INDUSTRIAL
SITUATIONS," THE MAJORITY OPINION REVERSES THE BOARD ON THE VERY SORT
OF ISSUES THAT ARE WITHIN ITS SPECIAL COMPETENCE.  AN EXAMINATION OF
THE RECORD SHOWS THAT THE BOARD HAD ALREADY CAREFULLY APPRIZED ITSELF
OF THE INTERESTS OF BOTH SIDES OF THIS CONTROVERSY.  AN EMPLOYER HAS
FORBIDDEN HIS EMPLOYEES TO ENGAGE IN UNION SOLICITATION WITHIN THE
PLANT DURING WORKING HOURS.  HE CONTEMPORANEOUSLY ENGAGES IN A CAMPAIGN
OF COERCIVE ANTIUNION SOLICITATION DURING THOSE SAME WORKING HOURS. 
THE VALIDITY OF BOTH PRACTICES - THE ENFORCEMENT OF THE NO-SOLICITATION
RULE AND THE COERCIVE ANTIUNION SOLICITATION - COMES INTO QUESTION, FOR
THEY ARE NOT SEPARABLE.  UNDER ONE SET OF CIRCUMSTANCES THE NO
SOLICITATION RULE MAY BE VALID.  HOWEVER, THE DETERMINATION AS TO
WHETHER AN EMPLOYER'S ANTIUNION ACTIVITIES ARE AN UNFAIR LABOR PRACTICE
DEPENDS ON THE CONTEXT IN WHICH THOSE ACTIVITIES OCCUR, (FN2) AND NO
SOLICITATION RULES ARE TO BE SUBJECTED TO THE SAME KIND OF SCRUTINY. 
EMPLOYEES DURING WORKING HOURS ARE THE CLASSIC CAPTIVE AUDIENCE.  AT
THE VERY MOMENT THE EMPLOYEES IN THIS CASE WERE UNDER THE GREATEST
DEGREE OF CONTROL BY THEIR EMPLOYER, THEY WERE FORCED TO LISTEN TO
DENUNCIATIONS OF THE UNION COUPLED WITH CLEAR REFERENCES TO THE
PERSONAL DISASTERS THAT WOULD ENSUE IF THE UNION SUCCEEDED OR IF THE
PARTICULAR EMPLOYEE CONTINUED TO SOLICIT FOR THE UNION.  THESE THREATS
WERE THEMSELVES HELD TO BE UNFAIR LABOR PRACTICES BY THE BOARD, AND
THAT HOLDING WAS ENFORCED BY THE COURT OF APPEALS AND IS NOT IN ISSUE
HERE.  DURING THIS SAME WORKING TIME THE UNIONIZED EMPLOYEES, WHO UNDER
CONCERTED ACTIVITY, WERE UNABLE, DUE TO THEIR EMPLOYER'S OWN RULE, TO
TRY TO OVERCOME THE EFFECT OF HIS ACTIVITIES EVEN THOUGH THOSE
ACTIVITIES WERE IN VIOLATION OF SECTION 8(A)(1) OF THE ACT.  IT IS NOT
NECESSARY TO SUGGEST THAT IN ALL CIRCUMSTANCES A UNION MUST HAVE THE
SAME FACILITIES AND OPPORTUNITY TO SOLICIT EMPLOYEES AS THE EMPLOYER
HAS IN OPPOSING THE UNION.  HOWEVER, THE PLANT PREMISES AND WORKING
TIME ARE SUCH DECISIVE FACTORS DURING A LABOR DISPUTE THAT WHEN AN
EMPLOYER DENIES THEM TO THE UNION AND AT THE SAME TIME PURSUES HIS OWN
PROGRAM OF COERCION ON THE PREMISES AND DURING WORKING HOURS, THIS
DENIAL IS BY ITSELF AN INTERFERENCE WITH THE RIGHTS GUARANTEED IN

THERE IS NO ISSUE IN THIS CASE OF BALANCING THE EMPLOYEE'S RIGHTS
UNDER SECTION 7 WITH THE EMPLOYER'S RIGHT TO PROMOTE "THE LEGALLY
AUTHORIZED EXPRESSION OF HIS ANTI-UNION VIEWS."  THE ONLY EXPRESSION OF
VIEWS CARRIED ON BY AVONDALE MILLS WAS A SERIES OF THREATS AGAINST THE
UNION.  FAR FROM BEING "LEGALLY AUTHORIZED," THIS EXPRESSION OF VIEWS
CONSTITUTED AN UNFAIR LABOR PRACTICE BY ITSELF.  THUS WE ARE NOT
CONCERNED IN THIS CASE WITH THE POSSIBILITY OF CURTAILING LEGITIMATE
EMPLOYER EXPRESSION IN VIOLATION OF EITHER THE FIRST AMENDMENT OR
AID TO THE COMPANY THAT ALL THE ACTIVITIES HERE INVOLVED OCCURRED ON
PLANT PROPERTY AND DURING WORKING HOURS.  WHEN A CHOICE HAS BEEN
REQUIRED BETWEEN AN EMPLOYER'S RIGHTS IN HIS PREMISES AND THE RIGHTS
THAT CONGRESS HAS PROTECTED UNDER SECTION 7, THIS COURT HAS NOT
HESITATED TO GIVE EFFECT TO THE CONGRESSIONAL WILL.  REPUBLIC AVIATION
CORP. V. LABOR BOARD, SUPRA; LABOR BOARD V. STOWE SPINNING CO., 336
U.S. 226; CF. LABOR BOARD V. BABCOCK & WILCOX CO., SUPRA. 

IN UNITED STEELWORKERS, I CONCUR IN THE RESULT.  THE NATIONAL LABOR
RELATIONS BOARD DECLINED TO HOLD THAT THE ENFORCEMENT OF AN EMPLOYER'S
NO-DISTRIBUTION RULE AGAINST A UNION WAS AN UNFAIR LABOR PRACTICE EVEN
THOUGH IT WAS COUPLED WITH AN ANTIUNION CAMPAIGN.  THE COURT OF APPEALS
REVERSED THE BOARD ON THIS POINT, MODIFYING THE BOARD'S ORDER
ACCORDINGLY.  THIS COURT SUSTAINS THE BOARD.  IT IS CONCEDED THAT THE
ENFORCEMENT OF THIS NO-DISTRIBUTION RULE AGAINST THE UNION IS NOT BY
ITSELF AN UNFAIR LABOR PRACTICE.  THE BOARD DETERMINED THAT THE
EMPLOYER'S EXPRESSIONS OF HIS ANTIUNION VIEWS WERE NONCOERCIVE IN
NATURE.  THIS FACT CREATES A VITAL DISTINCTION BETWEEN THIS CASE AND
AVONDALE MILLS.  BEING NONCOERCIVE IN NATURE, THE EMPLOYER'S
EXPRESSIONS WERE PROTECTED BY SECTION 8(C) OF THE NATIONAL LABOR
RELATIONS ACT (FN3) AND SO CANNOT BE USED TO SHOW THAT THE
CONTEMPORANEOUS ENFORCEMENT OF THE NO-DISTRIBUTION RULE WAS AN UNFAIR
LABOR PRACTICE.  (FN4) 

FN1  IN THE OPINION IN REPUBLIC AVIATION ALL THAT APPEARS IS THAT THE
COMPANY WAS A LARGE NONURBAN MANUFACTURER, MANY OF WHOSE EMPLOYEES
LIVED AT DISTANCES GREATER THAN WALKING DISTANCE FROM THE PLANT IN THE
LONG ISLAND AREA.  324 U.S., AT 800.  THE OPINION GOES ON TO NOTE THAT
IN BOTH THE REPUBLIC AVIATION CASE AND ITS COMPANION LE TOURNEAU CO.
CASE, "NO EVIDENCE WAS OFFERED THAT ANY UNUSUAL CONDITIONS EXISTED IN
LABOR RELATIONS, THE PLANT LOCATION OR OTHERWISE TO SUPPORT ANY
CONTENTION THAT CONDITIONS AT THIS PLANT DIFFERED FROM THOSE OCCURRING
NORMALLY AT ANY OTHER LARGE ESTABLISHMENT."  SUPRA, AT 801.  EVIDENCE
AND FINDINGS NOW REQUIRED BY THIS COURT WERE SIMILARLY ABSENT IN MATTER
OF PEYTON PACKING CO., 49 N.L.R.B. 828, QUOTED WITH APPROVAL IN
REPUBLIC AVIATION, SUPRA, AT 803, N. 10. 

FN2  CF. LABOR BOARD V. VIRGINIA ELEC.  & POWER CO., 314 U.S. 469;
INTERNATIONAL ASSN.  OF MACHINISTS V. LABOR BOARD, 311 U.S. 72. 

FN3  "THE EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION, OR THE
DISSEMINATION THEREOF, WHETHER IN WRITTEN, PRINTED, GRAPHIC, OR VISUAL
FORM, SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR PRACTICE
UNDER ANY OF THE PROVISIONS OF THIS ACT, IF SUCH EXPRESSION CONTAINS NO
THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT." 

FN4  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 8, 33; H.R. CONF.
REP. N. 510, 80TH CONG., 1ST SESS. 45.  SEE ALSO THE REMARKS OF SENATOR
TAFT DURING THE SENATE DEBATE ON THE ACT.  93 CONG. REC. 6443-6444,
6446-6447, 6859-6860. 
..END :



KNAPP V. SCHWEITZER 357 U.S. 371 


NO. 189.  ARGUED MARCH 6, 10, 1958 - DECIDED JUNE 30, 1958 - 2 N.Y.2D
913, 975, 141 N.E.2D 825, 142 N.E.2D 649, AFFIRMED. 


SUBPOENAED BEFORE A STATE GRAND JURY WHICH WAS CONDUCTING AN INQUIRY
REGARDING VIOLATIONS OF STATE LAWS, PETITIONER REFUSED TO ANSWER
CERTAIN QUESTIONS ON THE GROUND OF POSSIBLE SELF-INCRIMINATION.  AFTER
BEING GRANTED UNDER A STATE STATUTE IMMUNITY FROM STATE PROSECUTION AND
BEING ORDERED BY A STATE COURT TO ANSWER, PETITIONER PERSISTED IN HIS
REFUSAL, ON THE GROUND THAT TO ANSWER THE QUESTIONS MIGHT EXPOSE HIM TO
FEDERAL PROSECUTION FOR VIOLATION OF A FEDERAL STATUTE.  FOR SUCH
REFUSAL, HE WAS CONVICTED IN THE STATE COURT OF CONTEMPT AND SENTENCED
TO FINE AND IMPRISONMENT.  HELD:  HIS CONVICTION DID NOT VIOLATE HIS
RIGHTS UNDER THE FIFTH AMENDMENT, WHICH LIMITS ONLY THE POWERS OF THE
FEDERAL GOVERNMENT AND NOT THOSE OF THE STATES.  PP. 372-381. 

(A)  TO SUSTAIN PETITIONER'S CONTENTION THAT, BECAUSE CONGRESS HAS
MADE CERTAIN CONDUCT A FEDERAL CRIME, THE FIFTH AMENDMENT ENABLES HIM
TO ASSERT AGAINST A STATE GOVERNMENT THE PRIVILEGE AGAINST GIVING
TESTIMONY THAT MIGHT TEND TO IMPLICATE HIM IN A VIOLATION OF THE
FEDERAL STATUTE, WOULD DISREGARD THE HISTORIC DISTRIBUTION OF POWER IN
OUR FEDERAL SYSTEM BETWEEN THE FEDERAL GOVERNMENT AND THE STATES.  PP.
374-377. 

(B)  THOUGH THE FOURTEENTH AMENDMENT DID IMPOSE SOME RESTRICTIONS
UPON THE STATES IN THE MAKING AND ENFORCEMENT OF CRIMINAL LAWS, IT DID
NOT FUNDAMENTALLY CHANGE THE GREAT DIVISION OF POWERS BETWEEN THE
FEDERAL GOVERNMENT AND THE STATES IN THE ENFORCEMENT OF THE CRIMINAL
LAW.  P. 378. 

(C)  THE RIGHT OF THE STATES, AS A MEANS OF INVESTIGATING AND
DISCOVERING CORRUPTION AND MISCONDUCT WHICH VIOLATE STATE LAWS, TO
REQUIRE FULL DISCLOSURE IN EXCHANGE FOR IMMUNITY OF A WITNESS FROM
STATE PROSECUTION CANNOT BE DENIED ON THE GROUND THAT IT MAY EXPOSE THE
WITNESS TO PROSECUTION UNDER FEDERAL LAW.  PP. 378-379. 

(D)  THE SOLE PURPOSE OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF
INCRIMINATION IS THE SECURITY OF THE INDIVIDUAL AGAINST EXERTION OF THE
POWER OF THE FEDERAL GOVERNMENT TO COMPEL INCRIMINATING TESTIMONY WITH
A VIEW TO ENABLING THE FEDERAL GOVERNMENT TO CONVICT HIM OUT OF HIS OWN
MOUTH.  PP. 379-380. 

KNAPP V. SCHWEITZER, JUDGE OF THE COURT OF GENERAL SESSIONS, ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS A PARTNER IN A NEW YORK MANUFACTURING FIRM ENGAGED IN
INTERSTATE COMMERCE, SOME OF WHOSE EMPLOYEES HAVE BEEN ORGANIZED BY A
LOCAL UNION OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS.  PETITIONER
WAS SUBPOENAED TO APPEAR BEFORE A NEW YORK GRAND JURY CONDUCTING AN
INQUIRY REGARDING BRIBERY OF LABOR REPRESENTATIVES, CONSPIRACY AND
EXTORTION, CONSTITUTING CRIMES UNDER STATE LAW.  PETITIONER, DULY
SWORN, WAS ASKED A QUESTION CONCERNING THE UNION'S REPRESENTATION IN
CERTAIN WAGE NEGOTIATIONS WITH PETITIONER'S FIRM; HE REFUSED TO ANSWER
ON THE GROUND THAT HIS ANSWER MIGHT TEND TO INCRIMINATE HIM.  THE GRAND
JURY THEN GRANTED PETITIONER IMMUNITY FROM PROSECUTION, APPLYING N.Y.
PENAL LAW, SECS. 381, 2447, WHICH PROVIDES THAT ONE DULY GRANTED
IMMUNITY:

"SHALL NOT BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR FORFEITURE
FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER OR THING CONCERNING WHICH,
IN ACCORDANCE WITH THE ORDER BY COMPETENT AUTHORITY, HE GAVE ANSWER OR
PRODUCED EVIDENCE, AND THAT NO SUCH ANSWER GIVEN OR EVIDENCE PRODUCED
SHALL BE RECEIVED AGAINST HIM UPON ANY CRIMINAL PROCEEDING."  SEC.
2447(2). 

HAVING BEEN THUS GRANTED IMMUNITY, PETITIONER WAS DIRECTED TO ANSWER
THE QUESTION.  HE AGAIN REFUSED TO DO SO ON THE GROUND OF POSSIBLE SELF
INCRIMINATION. 

IN A SUBSEQUENT APPEARANCE BEFORE THE GRAND JURY, PETITIONER WAS
ASKED, AND WAS DIRECTED TO ANSWER BY THE FOREMAN, FOURTEEN OTHER
QUESTIONS CONCERNING RELATIONS AND TRANSACTIONS BETWEEN PETITIONER AND
UNION OFFICIALS.  PETITIONER AGAIN INVOKED THE PRIVILEGE AGAINST SELF
INCRIMINATION.  ON APPLICATION OF THE FOREMAN OF THE GRAND JURY,
RESPONDENT SCHWEITZER, AS JUDGE OF A NEW YORK COURT OF GENERAL
SESSIONS, ORDERED PETITIONER TO RETURN TO THE GRAND JURY AND MAKE
ANSWER TO THE QUESTIONS PUT TO HIM. 

AFTER FURTHER REFUSAL TO ANSWER, PETITIONER WAS ONCE MORE ORDERED TO
APPEAR BEFORE RESPONDENT SCHWEITZER; WHEN HE DID SO, THE RESPONDENT
DISTRICT ATTORNEY MOVED THAT PETITIONER BE PUNISHED FOR CONTEMPT OF
COURT.  IN OPPOSITION TO THIS APPLICATION PETITIONER STOOD ON HIS
REFUSAL TO ANSWER INASMUCH AS THE IMMUNITY GRANTED BY THE GRAND JURY
DID NOT PROTECT HIM AGAINST FEDERAL PROSECUTION.  RESPONDENT SCHWEITZER
ADJUDGED PETITIONER IN CONTEMPT OF COURT AND SENTENCED HIM TO SERVE
THIRTY DAYS IN JAIL AND TO PAY A FINE OF $250.  4 MISC. 2D 449, 157
N.Y.S.2D 820. 

PETITIONER APPLIED TO THE SUPREME COURT OF NEW YORK FOR REVERSAL OF
THE CONTEMPT CONVICTION AND FOR AN ORDER PROHIBITING RESPONDENTS FROM
PROCEEDING FURTHER IN THE MATTER.  HE ALLEGED THAT HIS DANGER OF SELF
INCRIMINATION WAS ATTRIBUTABLE TO THE PROSECUTORIAL POTENTIALITIES OF
SEC. 302 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, 61 STAT. 136,
157, 29 U.S.C.  SEC. 186, MAKING IT UNLAWFUL: 

"FOR ANY EMPLOYER TO PAY OR DELIVER, OR TO AGREE TO PAY OR DELIVER,
ANY MONEY OR OTHER THING OF VALUE TO ANY REPRESENTATIVE OF ANY OF HIS
EMPLOYEES WHO ARE EMPLOYED IN AN INDUSTRY AFFECTING COMMERCE" (SEC.
302(A))  ...  . 

AND TO THE FACT THAT THE UNITED STATES ATTORNEY FOR THE SOUTHERN
DISTRICT OF NEW YORK HAD "MADE PUBLIC ANNOUNCEMENT OF HIS INTENTION TO
COOPERATE WITH THE RESPONDENT DISTRICT ATTORNEY  ...  IN THE
PROSECUTION OF CRIMINAL CASES IN THE FIELD OF THE SUBJECT MATTER OUT OF
WHICH PETITIONER'S COMMITMENT AROSE."  THE PETITION FOR REVERSAL OF THE
CONTEMPT CONVICTION WAS DENIED BY THE SUPREME COURT; THIS JUDGMENT WAS
UNANIMOUSLY AFFIRMED IN THE APPELLATE DIVISION, 2 APP. DIV. 2D 579, 157
N.Y.S.2D 158, AND, WITHOUT OPINION, BY THE COURT OF APPEALS OF NEW
YORK, 2 N.Y.2D 913, 141 N.E.2D 825, WHICH DULY AMENDED ITS REMITTITUR
TO SHOW THAT IT HAD PASSED ON AND REJECTED PETITIONER'S CLAIM OF A
PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT, 2
N.Y.2D 975, 142 N.E.2D 649.  WE GRANTED CERTIORARI, 355 U.S. 804, TO
CONSIDER THIS CONSTITUTIONAL QUESTION. 

PETITIONER DOES NOT CLAIM THAT HIS CONVICTION OF CONTEMPT FOR REFUSAL
TO ANSWER QUESTIONS PUT TO HIM IN A STATE PROCEEDING DEPRIVED HIM OF
LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE
FOURTEENTH AMENDMENT; THAT SUCH A CLAIM IS WITHOUT MERIT WAS SETTLED IN
TWINING V. NEW JERSEY, 211 U.S. 78.  HIS CONTENTION IS, RATHER, THAT,
BECAUSE THE CONGRESS OF THE UNITED STATES HAS IN THE EXERCISE OF ITS
CONSTITUTIONAL POWERS MADE CERTAIN CONDUCT UNLAWFUL, THE FIFTH
AMENDMENT GIVES HIM THE PRIVILEGE, WHICH HE CAN ASSERT AGAINST EITHER A
STATE OR THE NATIONAL GOVERNMENT, AGAINST GIVING TESTIMONY THAT MIGHT
TEND TO IMPLICATE HIM IN A VIOLATION OF THE FEDERAL ACT.  (FN1) BECAUSE
OF THE MOMENTUM OF ADJUDICATION WHEREBY DOCTRINE EXPANDS FROM CASE TO
CASE, SUCH A CLAIM CARRIES DANGEROUS IMPLICATIONS.  IT MAY WELL LEAD TO
THE CONTENTION THAT WHEN CONGRESS ENACTS A STATUTE CARRYING CRIMINAL
SANCTIONS IT HAS AS A PRACTICAL MATTER WITHDRAWN FROM THE STATES THEIR
TRADITIONAL POWER TO INVESTIGATE IN AID OF PROSECUTING CONVENTIONAL
STATE CRIMES, SOME FACTS OF WHICH MAY BE ENTANGLED IN A FEDERAL
OFFENSE.  TO RECOGNIZE SUCH A CLAIM WOULD DISREGARD THE HISTORIC
DISTRIBUTION OF POWER AS BETWEEN NATION AND STATES IN OUR FEDERAL
SYSTEM. 

THE ESSENCE OF A CONSTITUTIONALLY FORMULATED FEDERALISM IS THE
DIVISION OF POLITICAL AND LEGAL POWERS BETWEEN TWO SYSTEMS OF
GOVERNMENT CONSTITUTING A SINGLE NATION.  THE CRUCIAL DIFFERENCE
BETWEEN FEDERALISMS IS IN A WIDE SWEEP OF POWERS CONFERRED UPON THE
CENTRAL GOVERNMENT WITH A RESERVATION OF SPECIFIC POWERS TO THE
CONSTITUENT UNITS AS AGAINST A PARTICULARIZATION OF POWERS GRANTED TO
THE FEDERAL GOVERNMENT WITH THE VAST RANGE OF GOVERNMENTAL POWERS LEFT
TO THE CONSTITUENT UNITS.  THE DIFFERENCE IS STRIKINGLY ILLUSTRATED BY
THE BRITISH NORTH AMERICAN ACT, 1867, 30 VICT., C. 3, AND THE
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT, 1900, 63 & 64 VICT., C.
12.  IT IS RELEVANT TO REMIND THAT OUR CONSTITUTION IS ONE OF
PARTICULAR POWERS GIVEN TO THE NATIONAL GOVERNMENT WITH THE POWERS NOT
SO DELEGATED RESERVED TO THE STATES OR, IN THE CASE OF LIMITATIONS UPON
BOTH GOVERNMENTS, TO THE PEOPLE.  EXCEPT INSOFAR AS PENAL REMEDIES MAY
BE PROVIDED BY CONGRESS UNDER THE EXPLICIT AUTHORITY TO "MAKE ALL LAWS
WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION" THE
OTHER POWERS GRANTED BY ART. I, SEC. 8, THE BULK OF AUTHORITY TO
LEGISLATE ON WHAT MAY BE COMPENDIOUSLY DESCRIBED AS CRIMINAL JUSTICE,
WHICH IN OTHER NATIONS BELONGS TO THE CENTRAL GOVERNMENT, IS UNDER OUR
SYSTEM THE RESPONSIBILITY OF THE INDIVIDUAL STATES. 

THE CHOICE OF THIS FORM OF FEDERAL ARRANGEMENT WAS THE PRODUCT OF A
JEALOUS CONCERN LEST FEDERAL POWER ENCROACH UPON THE PROPER DOMAIN OF
THE STATES AND UPON THE RIGHTS OF THE PEOPLE.  IT WAS THE SAME JEALOUS
CONCERN THAT LED TO THE RESTRICTIONS ON THE NATIONAL GOVERNMENT
EXPRESSED BY THE FIRST TEN AMENDMENTS, COLLOQUIALLY KNOWN AS THE BILL
OF RIGHTS.  THESE PROVISIONS ARE DEEPLY CONCERNED WITH PROCEDURAL
SAFEGUARDS PERTAINING TO CRIMINAL JUSTICE WITHIN THE RESTRICTED AREA OF
FEDERAL JURISDICTION.  THEY ARE NOT RESTRICTIONS UPON THE VAST DOMAIN
OF THE CRIMINAL LAW THAT BELONGS EXCLUSIVELY TO THE STATES.  (FN2)
NEEDLESS TO SAY, NO STATESMAN OF HIS DAY CARED MORE FOR SAFEGUARDING
THE LIBERTIES THAT WERE ENSHRINED IN THE BILL OF RIGHTS THAN DID JAMES
MADISON.  BUT IT WAS HIS VIEW THAT THESE LIBERTIES WERE ALREADY
PROTECTED AGAINST FEDERAL ACTION BY THE CONSTITUTION ITSELF.  "MY OWN
OPINION," HE WROTE TO THOMAS JEFFERSON, "HAS ALWAYS BEEN IN FAVOR OF A
BILL OF RIGHTS; PROVIDED IT BE SO FRAMED AS NOT TO IMPLY POWERS NOT
MEANT TO BE INCLUDED IN THE ENUMERATION.   AT THE SAME TIME I HAVE
NEVER THOUGHT THE OMISSION A MATERIAL DEFECT, NOR BEEN ANXIOUS TO
SUPPLY IT EVEN BY SUBSEQUENT AMENDMENT, FOR ANY OTHER REASON THAN THAT
IT IS ANXIOUSLY DESIRED BY OTHERS.  I HAVE FAVORED IT BECAUSE I
SUPPOSED IT MIGHT BE OF USE, AND IF PROPERLY EXECUTED COULD NOT BE OF
DISSERVICE.  I HAVE NOT VIEWED IT IN AN IMPORTANT LIGHT 1.  BECAUSE I
CONCEIVE THAT IN A CERTAIN DEGREE, THOUGH NOT IN THE EXTENT ARGUED BY
MR. WILSON, THE RIGHTS IN QUESTION ARE RESERVED BY THE MANNER IN WHICH
THE FEDERAL POWERS ARE GRANTED  ...  ."  (FN3)  PLAINLY ENOUGH THE
LIMITATIONS ARISING FROM THE MANNER IN WHICH THE FEDERAL POWERS WERE
GRANTED WERE LIMITATIONS ON THE FEDERAL GOVERNMENT, NOT ON THE STATES. 
THE BILL OF RIGHTS THAT MADISON SPONSORED BECAUSE OTHERS ANXIOUSLY
DESIRED THAT THESE LIMITATIONS BE MADE EXPLICIT PATENTLY WAS LIKEWISE
LIMITED TO THE FEDERAL GOVERNMENT.  IF CONCLUSIVE PROOF OF THIS WERE
NEEDED, IT IS AFFORDED BY THE FACT THAT WHEN MADISON CAME TO SPONSOR
THE BILL OF RIGHTS IN THE HOUSE OF REPRESENTATIVES AS SAFEGUARDS
AGAINST THE FEDERAL GOVERNMENT HE PROPOSED THAT LIKE SAFEGUARDS AGAINST
THE STATES BE PLACED IN THE UNITED STATES CONSTITUTION.  (FN4)
CONGRESS, HOWEVER, REJECTED SUCH LIMITATIONS UPON STATE POWER. 

WHILE THE ADOPTION OF THE FOURTEENTH AMENDMENT IN 1868 DID NOT CHANGE
THE DISTRIBUTION OF POWERS BETWEEN THE STATES AND THE FEDERAL
GOVERNMENT SO AS TO WITHDRAW THE BASIC INTERESTS OF CRIMINAL JUSTICE
FROM THE EXCLUSIVE CONTROL OF THE STATES, IT DID IMPOSE RESTRICTIONS
UPON THE STATES IN THE MAKING AND IN THE ENFORCEMENT OF THE CRIMINAL
LAWS.  IT DID THIS INSOFAR AS THE "FUNDAMENTAL PRINCIPLES OF LIBERTY
AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR CIVIL AND POLITICAL
INSTITUTIONS,"  HEBERT V. LOUISIANA, 272 U.S. 312, 316; PALKO V.
CONNECTICUT, 302 U.S. 319; MALINSKI V. NEW YORK, 324 U.S. 401, 412-416,
WITH 438, ARE IMPLIED IN THE COMPREHENSIVE CONCEPT OF DUE PROCESS OF
LAW.  BUT THIS CONCEPT DOES NOT BLUR THE GREAT DIVISION OF POWERS
BETWEEN THE FEDERAL GOVERNMENT AND THE INDIVIDUAL STATES IN THE
ENFORCEMENT OF THE CRIMINAL LAW. 

GENERALITIES THOUGH THESE OBSERVATIONS BE, THEY BEAR DECISIVELY ON
THE ISSUE THAT HAS BEEN TENDERED IN THIS CASE.  TO YIELD TO THE
CONTENTION OF THE PETITIONER WOULD NOT ONLY DISREGARD THE UNIFORM
COURSE OF DECISION BY THIS COURT FOR OVER A HUNDRED YEARS IN
RECOGNIZING THE LEGAL AUTONOMY OF STATE AND FEDERAL GOVERNMENTS.  (FN5)
IN THESE DAYS OF THE EXTENSIVE SWEEP OF SUCH FEDERAL STATUTES AS THE
INCOME TAX LAW AND THE CRIMINAL SANCTIONS FOR THEIR EVASIONS,
INVESTIGATION UNDER STATE LAW TO DISCOVER CORRUPTION AND MISCONDUCT,
GENERALLY, IN VIOLATION OF STATE LAW COULD EASILY BE THWARTED IF A
STATE WERE DEPRIVED OF ITS POWER TO EXPOSE SUCH WRONGDOING WITH A VIEW
TO REMEDIAL LEGISLATION OR PROSECUTION.  WHILE CORRUPTION AND GENERALLY
LOW STANDARDS IN LOCAL GOVERNMENT MAY NOT TODAY BE AS ENDEMIC AS LORD
BRYCE REPORTED THEM TO BE IN THE AMERICAN COMMONWEALTH (1888), NOT EVEN
THE MOST CHEERFUL VIEW OF THE IMPROVEMENTS THAT HAVE SINCE TAKEN PLACE
CAN AFFORD JUSTIFICATION FOR BLUNTING THE POWER OF STATES TO FERRET
OUT, AND THEREBY GUARD AGAINST, SUCH CORRUPTION BY RESTRICTIONS THAT
WOULD REVERSE OUR WHOLE CONSTITUTIONAL HISTORY.  TO ACHIEVE THESE
ESSENTIAL ENDS OF STATE GOVERNMENT THE STATES MAY FIND IT NECESSARY, AS
DID NEW YORK, TO REQUIRE FULL DISCLOSURE IN EXCHANGE FOR IMMUNITY FROM
PROSECUTION.  THIS CANNOT BE DENIED ON THE CLAIM THAT SUCH STATE LAW OF
IMMUNITY MAY EXPOSE THE POTENTIAL WITNESS TO PROSECUTION UNDER FEDERAL
LAW.  SEE JACK V. KANSAS, 199 U.S. 372.  EVERY WITNESS BEFORE A STATE
GRAND JURY INVESTIGATION WOULD FEEL FREE TO BLOCK THOSE VITALLY
IMPORTANT PROCEEDINGS. 

IN CONSTRUING THE FIFTH AMENDMENT AND ITS PRIVILEGE AGAINST SELF
INCRIMINATION, ONE MUST KEEP IN MIND ITS ESSENTIAL QUALITY AS A
RESTRAINT UPON COMPULSION OF TESTIMONY BY THE NEWLY ORGANIZED FEDERAL
GOVERNMENT AT WHICH THE BILL OF RIGHTS WAS DIRECTED, AND NOT AS A
GENERAL DECLARATION OF POLICY AGAINST COMPELLING TESTIMONY.  IT IS
PLAIN THAT THE AMENDMENT CAN NO MORE BE THOUGHT OF AS RESTRICTING
ACTION BY THE STATES THAN AS RESTRICTING THE CONDUCT OF PRIVATE
CITIZENS.  THE SOLE - ALTHOUGH DEEPLY VALUABLE - PURPOSE OF THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION IS THE SECURITY OF THE
INDIVIDUAL AGAINST THE EXERTION OF THE POWER OF THE FEDERAL GOVERNMENT
TO COMPEL INCRIMINATING TESTIMONY WITH A VIEW TO ENABLING THAT SAME
GOVERNMENT TO CONVICT A MAN OUT OF HIS OWN MOUTH. 

OF COURSE THE FEDERAL GOVERNMENT MAY NOT TAKE ADVANTAGE OF THIS
RECOGNITION OF THE STATES' AUTONOMY IN ORDER TO EVADE THE BILL OF
RIGHTS.  IF A FEDERAL OFFICER SHOULD BE A PARTY TO THE COMPULSION OF
TESTIMONY BY STATE AGENCIES, THE PROTECTION OF THE FIFTH AMENDMENT
WOULD COME INTO PLAY.  SUCH TESTIMONY IS BARRED IN A FEDERAL
PROSECUTION, SEE BYARS V. UNITED STATES, 273 U.S. 28.  WHETHER, IN A
CASE OF SUCH COLLABORATION BETWEEN STATE AND FEDERAL OFFICERS, THE
DEFENDANT COULD SUCESSFULLY ASSERT HIS PRIVILEGE IN THE STATE
PROCEEDING, WE NEED NOT NOW DECIDE, FOR THE RECORD BEFORE US IS BARREN
OF EVIDENCE THAT THE STATE WAS USED AS AN INSTRUMENT OF FEDERAL
PROSECUTION OR INVESTIGATION.  PETITIONER'S ASSERTION THAT A FEDERAL
PROSECUTING ATTORNEY ANNOUNCED HIS INTENTION OF COOPERATING WITH STATE
OFFICIALS IN THE PROSECUTION OF CASES IN A GENERAL FIELD OF CRIMINAL
LAW PRESENTS A SITUATION DEVOID OF LEGAL SIGNIFICANCE AS A JOINT STATE
AND FEDERAL ENDEAVOR.    THIS COURT WITH ALL ITS SHIFTING MEMBERSHIP
HAS REPEATEDLY FOUND OCCASION TO SAY THAT WHATEVER INCONVENIENCES AND
EMBARRASSMENTS MAY BE INVOLVED, THEY ARE THE PRICE WE PAY FOR OUR
FEDERALISM, FOR HAVING OUR PEOPLE AMENABLE TO - AS WELL AS SERVED AND
PROTECTED BY - TWO GOVERNMENTS.  IF A PERSON MAY, THROUGH IMMUNIZED
SELF-DISCLOSURE BEFORE A LAW-ENFORCING AGENCY OF THE STATE, FACILITATE
TO SOME EXTENT HIS AMENABILITY TO FEDERAL PROCESS, OR VICE VERSA, THIS
TOO IS A PRICE TO BE PAID FOR OUR FEDERALISM.  AGAINST IT MUST BE PUT
WHAT WOULD BE A GREATER PRICE, THAT OF STERILIZING THE POWER OF BOTH
GOVERNMENTS BY NOT RECOGNIZING THE AUTONOMY OF EACH WITHIN ITS PROPER
SPHERE.  JUDGMENT AFFIRMED.    FN1  NO FORCE OR VALIDITY IS ADDED TO
PETITIONER'S ARGUMENT BY THE INVOCATION OF THE SUPREMACY CLAUSE, ART.
VI, CL. 2, AND THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH
AMENDMENT.  WHATEVER THE APPLICABILITY OF THE FIFTH AMENDMENT, IT IS IN
NO WAY EXPANDED BY THOSE TWO PROVISIONS.   CF. TWINING V. NEW JERSEY,
SUPRA, AT 99:  "THE EXEMPTION FROM COMPULSORY SELF-INCRIMINATION IS NOT
A PRIVILEGE OR IMMUNITY OF NATIONAL CITIZENSHIP  ...  ." 

FN2  IN 1833 MR. CHIEF JUSTICE MARSHALL HAD THIS TO SAY:  "HAD THE
FRAMERS OF THESE AMENDMENTS INTENDED THEM TO BE LIMITATIONS ON THE
POWERS OF THE STATE GOVERNMENTS, THEY WOULD HAVE IMITATED THE FRAMERS
OF THE ORIGINAL CONSTITUTION, AND HAVE EXPRESSED THAT INTENTION.  HAD
CONGRESS ENGAGED IN THE EXTRAORDINARY OCCUPATION OF IMPROVING THE
CONSTITUTIONS OF THE SEVERAL STATES BY AFFORDING THE PEOPLE ADDITIONAL
PROTECTION FROM THE EXERCISE OF POWER BY THEIR OWN GOVERNMENTS IN
MATTERS WHICH CONCERNED THEMSELVES ALONE, THEY WOULD HAVE DECLARED THIS
PURPOSE IN PLAIN AND INTELLIGIBLE LANGUAGE. 

"BUT IT IS UNIVERSALLY UNDERSTOOD, IT IS A PART OF THE HISTORY OF THE
DAY, THAT THE GREAT REVOLUTION WHICH ESTABLISHED THE CONSTITUTION OF
THE UNITED STATES, WAS NOT EFFECTED WITHOUT IMMENSE OPPOSITION. 
SERIOUS FEARS WERE EXTENSIVELY ENTERTAINED THAT THOSE POWERS WHICH THE
PATRIOT STATESMEN, WHO THEN WATCHED OVER THE INTERESTS OF OUR COUNTRY,
DEEMED ESSENTIAL TO UNION, AND TO THE ATTAINMENT OF THOSE INVALUABLE
OBJECTS FOR WHICH UNION WAS SOUGHT, MIGHT BE EXERCISED IN A MANNER
DANGEROUS TO LIBERTY.  IN ALMOST EVERY CONVENTION BY WHICH THE
CONSTITUTION WAS ADOPTED, AMENDMENTS TO GUARD AGAINST THE ABUSE OF
POWER WERE RECOMMENDED.  THESE AMENDMENTS DEMANDED SECURITY AGAINST THE
APPREHENDED ENCROACHMENTS OF THE GENERAL GOVERNMENT - NOT AGAINST THOSE
OF THE LOCAL GOVERNMENTS."  BARRON V. BALTIMORE, 7 PET. 243, 250. 

FN3 LETTER TO THOMAS JEFFERSON, OCT. 17, 1788, 14 PAPERS OF THOMAS
JEFFERSON (BOYD ED.  1958) 16, 18.  MADISON WENT ON TO GIVE THE
FOLLOWING ADDITIONAL REASONS FOR HIS VIEW:  "2.  BECAUSE THERE IS GREAT
REASON TO FEAR THAT A POSITIVE DECLARATION OF SOME OF THE MOST
ESSENTIAL RIGHTS COULD NOT BE OBTAINED IN THE REQUISITE LATITUDE.  I AM
SURE THAT THE RIGHTS OF CONSCIENCE IN PARTICULAR, IF SUBMITTED TO
PUBLIC DEFINITION WOULD BE NARROWED MUCH MORE THAN THEY ARE LIKELY EVER
TO BE BY AN ASSUMED POWER  ... .  3.  BECAUSE THE LIMITED POWERS OF THE
FEDERAL GOVERNMENT AND THE JEALOUSY OF THE SUBORDINATE GOVERNMENTS,
AFFORD A SECURITY WHICH HAS NOT EXISTED IN THE CASE OF THE STATE
GOVERNMENTS, AND EXISTS IN NO OTHER.  4.  BECAUSE EXPERIENCE PROVES THE
INEFFICACY OF A BILL OF RIGHTS ON THOSE OCCASIONS WHEN ITS CONTROUL IS
MOST NEEDED."  14 ID., AT 18-19.  THE ENTIRE, RATHER LONG, LETTER
MERITS READING.  FOR AN ACCOUNT OF MADISON'S MANAGEMENT OF THE
RESOLUTION THAT BECAME THE BILL OF RIGHTS, SEE BRANT, JAMES MADISON:
FATHER OF THE CONSTITUTION, 1787-1800, C. 21. 

FN4  "MR. MADISON CONCEIVED THIS TO BE THE MOST VALUABLE AMENDMENT IN
THE WHOLE LIST.  IF THERE WERE ANY REASON TO RESTRAIN THE GOVERNMENT OF
THE UNITED STATES FROM INFRINGING UPON THESE ESSENTIAL RIGHTS, IT WAS
EQUALLY NECESSARY THAT THEY SHOULD BE SECURED AGAINST THE STATE
GOVERNMENTS.  HE THOUGHT THAT IF THEY PROVIDED AGAINST THE ONE, IT WAS
AS NECESSARY TO PROVIDE AGAINST THE OTHER, AND WAS SATISFIED THAT IT
WOULD BE EQUALLY GRATEFUL TO THE PEOPLE."  1 ANNALS OF CONG. 755
(1789). 

FN5  BY 1900 THE APPLICABILITY OF THE BILL OF RIGHTS TO THE STATES
HAD BEEN REJECTED IN CASES INVOLVING CLAIMS BASED ON VIRTUALLY EVERY
PROVISION IN THE FIRST EIGHT ARTICLES OF AMENDMENT.  SEE, E.G., ARTICLE
I:  PERMOLI V. MUNICIPALITY NO. 1, 3 HOW.  589, 609 (FREE EXERCISE OF
RELIGION); UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 552 (RIGHT TO
ASSEMBLE AND PETITION THE GOVERNMENT); ARTICLE II: UNITED STATES V.
CRUIKSHANK, SUPRA, AT 553 (RIGHT TO KEEP AND BEAR ARMS); ARTICLE IV:
SMITH V. MARYLAND, 18 HOW.  71, 76 (NO WARRANT EXCEPT ON PROBABLE
CAUSE); SPIES V. ILLINOIS, 123 U.S. 131, 166 (SECURITY AGAINST
UNREASONABLE SEARCHES AND SEIZURES); ARTICLE V:  BARRON V. BALTIMORE,
NOTE 2, SUPRA, AT 247 (TAKING WITHOUT JUST COMPENSATION); FOX V. OHIO,
5 HOW.  410, 434 (FORMER JEOPARDY); TWITCHELL V. PENNSYLVANIA, 7 WALL. 
321, 325-327 (DEPRIVATION OF LIFE WITHOUT DUE PROCESS OF LAW); SPIES V.
ILLINOIS, SUPRA, AT 166 (COMPULSORY SELF-INCRIMINATION); EILENBECKER V.
PLYMOUTH COUNTY, 134 U.S. 31, 34-35 (PRESENTMENT OR INDICTMENT BY GRAND
JURY); ARTICLE VI:  TWITCHELL V. PENNSYLVANIA, SUPRA, AT 325-327 (RIGHT
TO BE INFORMED OF NATURE AND CAUSE OF ACCUSATION); SPIES V. ILLINOIS,
SUPRA, AT 166 (SPEEDY AND PUBLIC TRIAL BY IMPARTIAL JURY); IN RE
SAWYER, 124 U.S. 200, 219 (COMPULSORY PROCESS); EILENBECKER V. PLYMOUTH
COUNTY, SUPRA, AT 34-35 (CONFRONTATION OF WITNESSES); ARTICLE VII:
LIVINGSTON'S LESSEE V. MOORE, 7 PET. 469, 551-552 (RIGHT OF JURY TRIAL
IN CIVIL CASES); JUSTICES V. MURRAY, 9 WALL.  274, 278 (RE-EXAMINATION
OF FACTS TRIED BY JURY); ARTICLE VIII: PERVEAR V. MASSACHUSETTS, 5
WALL.  475, 479-480 (EXCESSIVE FINES, CRUEL AND UNUSUAL PUNISHMENTS). 

MR. JUSTICE BRENNAN, CONCURRING. 

I JOIN THE COURT'S OPINION UPON MY UNDERSTANDING THAT THE ONLY
QUESTION WE DECIDE IS THAT A WITNESS WHO IS GRANTED IMMUNITY BY A STATE
AGAINST STATE PROSECUTION MAY BE COMPELLED TO TESTIFY IN A STATE
PROCEEDING AND CANNOT SUCCESSFULLY ASSERT THE PRIVILEGE AGAINST SELF
INCRIMINATION UNDER THE FIFTH AMENDMENT. 

I THEREFORE DO NOT BELIEVE THAT RECONSIDERATION OF THE HOLDING IN
FELDMAN V. UNITED STATES, 322 U.S. 487, IS NECESSARY OR APPROPRIATE IN
THIS CASE.  IN VIEW OF THE CONTRARY SUGGESTION IN THE DISSENT OF MR.
JUSTICE BLACK, I THINK IT PROPER HOWEVER TO NOTE THAT IN JOINING THE
COURT'S OPINION, I SHOULD NOT BE UNDERSTOOD AS BELIEVING THAT OUR
DECISION TODAY FORECLOSES RECONSIDERATION OF THE FELDMAN HOLDING IN A
CASE REQUIRING OUR DECISION OF THAT QUESTION. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

THERE CAN BE NO DOUBT THAT THE PROBLEM IN THIS CASE IS A PROBLEM OF
FEDERALISM.  COMPETING CONSIDERATIONS OF THE GREATEST SIGNIFICANCE ARE
INVOLVED.  BUT IN RESOLVING QUESTIONS THAT TOUCH UPON THE INTRICATE AND
DELICATE MECHANISM OF OUR FEDERAL SYSTEM IT IS ESPECIALLY IMPORTANT TO
REMEMBER, AS MR. JUSTICE HOLMES OBSERVED, THAT "GENERAL PROPOSITIONS DO
NOT DECIDE CONCRETE CASES."  LOCHNER V. NEW YORK, 198 U.S. 45, 76.  IN
THIS CASE THE NEW YORK COURTS SUSTAINED PETITIONER'S CONVICTION ON THE
UNDERSTANDING THAT IN THE CIRCUMSTANCES OF THIS CASE THE TESTIMONY
PETITIONER WAS COMPELLED TO GIVE BEFORE THE NEW YORK STATE GRAND JURY
COULD NOT, AS A MATTER OF FEDERAL LAW, BE EMPLOYED IN A SUBSEQUENT
FEDERAL PROSECUTION.  ON THE OTHER HAND, IT IS IMPLICIT IN THE MAJORITY
OPINION IN THIS COURT THAT THE PETITIONER DOES RUN THE RISK OF A
FEDERAL PROSECUTION BASED ON HIS OWN TESTIMONY UNDER FELDMAN V. UNITED
STATES, 322 U.S. 487.  IF WE ARE TO HAVE ANY PROFITABLE DISCUSSION OF
FEDERALISM BASED ON THE FACTS OF THIS CASE, WE SHOULD BEGIN WITH
AGREEMENT ON THE FACTS AND THE CONTROLLING PRINCIPLES.  IN ANY EVENT,
WE SHOULD NOT AFFIRM A NEW YORK CONVICTION IF IN FACT THE STATE COURTS
CONSTRUED STATE LAW UNDER A MISCONCEPTION OF FEDERAL LAW.  TO DO SO
DOES VIOLENCE TO THE VITAL PRINCIPLE OF FEDERALISM THAT A STATE COURT
IS THE FINAL ARBITER OF STATE LAW.  SEE MAY V. ANDERSON, 345 U.S. 528,
534, 535.  I THEREFORE AGREE WITH MR. JUSTICE BLACK THAT THIS CASE
SHOULD BE REMANDED SO THAT THE NEW YORK COURT OF APPEALS CAN RECONSIDER
STATE LAW IN LIGHT OF THE MAJORITY'S CONCLUSION THAT THE ROLE OF THE
FEDERAL PROSECUTOR WAS NOT SUCH AS TO PREVENT USE OF THE STATE
COMPELLED TESTIMONY AGAINST PETITIONER IN A FEDERAL PROSECUTION.  AT
ALL EVENTS, THE UNSETTLING INFLUENCE THAT FELDMAN HAS HAD UPON THE
COURSE OF THIS LITIGATION INDICATES THAT A SATISFACTORY SOLUTION CANNOT
BE REACHED WITHOUT A RECONSIDERATION OF THAT DECISION. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

PETITIONER REFUSED TO ANSWER QUESTIONS DIRECTED TO HIM BY A NEW YORK
GRAND JURY ON THE GROUND THAT HIS ANSWERS MIGHT TEND TO INCRIMINATE HIM
UNDER BOTH STATE AND FEDERAL LAW.  HE WAS THEN GRANTED IMMUNITY FROM
PROSECUTION UNDER STATE LAW AND ORDERED TO ANSWER.  WHEN HE PERSISTED
IN HIS REFUSAL HE WAS FOUND GUILTY OF CONTEMPT AND SENTENCED TO JAIL. 
IN REVIEWING HIS CONVICTION THE APPELLATE DIVISION OF THE NEW YORK
SUPREME COURT REJECTED THE CONTENTION THAT IT VIOLATED BOTH STATE AND
FEDERAL CONSTITUTIONS TO PUNISH HIM FOR DECLINING TO GIVE TESTIMONY
WHICH MIGHT HAVE INCRIMINATED HIM UNDER FEDERAL LAW.  2 APP. DIV. 2D
579, 157 N.Y.S.2D 158. 

ARTICLE I, SEC. 6 OF THE NEW YORK CONSTITUTION, LIKE THE FIFTH
AMENDMENT, PROVIDES THAT "NO PERSON  ...  SHALL BE COMPELLED IN ANY
CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  THE APPELLATE DIVISION
RULED THAT THIS STATE PROVISION HAD NOT BEEN INFRINGED, POINTING OUT
(1) THAT PETITIONER HAD BEEN GRANTED IMMUNITY FROM STATE PROSECUTION
AND (2) HIS ANSWERS COULD NOT BE USED TO CONVICT HIM OF A FEDERAL CRIME
SINCE THE RECORD SHOWED THAT THE FEDERAL DISTRICT ATTORNEY HAD
"COOPERATED" WITH STATE OFFICERS IN THE GRAND JURY INVESTIGATION.  THE
NEW YORK COURT OF APPEALS AFFIRMED WITHOUT OPINION.  2 N.Y.2D 913, 141
N.E.2D 825. 

IN AFFIRMING, THIS COURT EVIDENTLY TAKES THE POSITION, CONTRARY TO
THE APPELLATE DIVISION, THAT WHATEVER COOPERATION BETWEEN FEDERAL AND
STATE OFFICIALS IS DISCLOSED BY THIS RECORD IT IS NOT ENOUGH TO BAR USE
OF PETITIONER'S TESTIMONY IN A FEDERAL PROSECUTION.  IN THE LIGHT OF
THIS, IT SEEMS TO ME THAT THE PROPER COURSE WOULD BE TO VACATE THE
JUDGMENT OF THE NEW YORK COURT OF APPEALS AND REMAND SO THAT THE COURTS
OF THAT STATE MIGHT CONSIDER PETITIONER'S CLAIM OF PRIVILEGE UNDER THE
NEW YORK CONSTITUTION FREE FROM THE ERRONEOUS ASSUMPTION THAT HIS
TESTIMONY COULD NOT BE USED TO CONVICT HIM OF A FEDERAL CRIME.  SEE
STANDARD OIL CO. OF CALIFORNIA V. JOHNSON, 316 U.S. 481.  CF. PATTERSON
V. ALABAMA, 294 U.S. 600, 607; 28 U.S.C. SEC. 2106.  OTHERWISE
PETITIONER WILL GO TO JAIL WHEN THERE IS AT LEAST A CHANCE THAT THE NEW
YORK COURTS WOULD NOT HAVE UPHELD HIS CONVICTION HAD THEY KNOWN, AS
THEY NOW DO, THAT HIS STATE-COMPELLED TESTIMONY COULD BE USED AGAINST
HIM IN THE FEDERAL COURTS.  (FN1) 

I THINK IT IS ALSO APPROPRIATE TO SAY A FEW WORDS HERE ABOUT FELDMAN
V. UNITED STATES, 322 U.S. 487, WHICH WAS REFERRED TO BY THE APPELLATE
DIVISION.  IN THAT CASE A MINORITY OF THIS COURT HELD, 4-3, THAT
INFORMATION EXTRACTED FROM A PERSON BY STATE AUTHORITIES UNDER THREAT
OF PUNISHMENT COULD BE USED TO CONVICT HIM OF A FEDERAL CRIME.  (FN2)
THE PASSAGE OF TIME HAS ONLY STRENGTHENED MY CONVICTION THAT THIS
RESULT IS THOROUGHLY CONTRARY TO THE GUARANTEE OF THE FIFTH AMENDMENT
THAT NO PERSON SHALL BE COMPELLED TO BE A WITNESS AGAINST HIMSELF, AT
LEAST IN A FEDERAL PROSECUTION.  THE UNTENABILITY OF THE PREMISES UPON
WHICH THE COURT RELIED IN FELDMAN HAS BEEN CLEARLY REVEALED IN A SERIES
OF PENETRATING LAW REVIEW ARTICLES BY PROFESSOR J.A.C. GRANT.  IMMUNITY
FROM COMPULSORY SELF-INCRIMINATION IN A FEDERAL SYSTEM OF GOVERNMENT, 9
TEMPLE L.Q. 57, 194; FEDERALISM AND SELF-INCRIMINATION, 4 U.C.L.A. LAW
REV. 549, 5 ID., 1.  FELDMAN PLACES A WITNESS WHO IS CALLED BEFORE A
STATE AGENCY AND ORDERED TO TESTIFY IN A DESPERATE POSITION; HE MUST
EITHER REMAIN SILENT AND RISK IMPRISONMENT FOR CONTEMPT OR CONFESS
HIMSELF INTO A FEDERAL PENITENTIARY.  SEE MARCELLO V. UNITED STATES,
196 F.2D 437.  INDEED THINGS HAVE NOW REACHED THE POINT, AS THE RESULT
OF UNITED STATES V. MURDOCK, 284 U.S. 141, FELDMAN, AND THE PRESENT
CASE, WHERE A PERSON CAN BE WHIPSAWED INTO INCRIMINATING HIMSELF UNDER
BOTH STATE AND FEDERAL LAW EVEN THOUGH THERE IS A PRIVILEGE AGAINST
SELF-INCRIMINATION IN THE CONSTITUTION OF EACH.  CF. IRVINE V.
CALIFORNIA, 347 U.S. 128; UNITED STATES V. KAHRIGER, 345 U.S. 22.  I
CANNOT AGREE THAT WE MUST ACCEPT THIS INTOLERABLE STATE OF AFFAIRS AS A
NECESSARY PART OF OUR FEDERAL SYSTEM OF GOVERNMENT. 

FN1  IN MICHIGAN, AT LEAST, THE STATE CONSTITUTION HAS BEEN
INTERPRETED AS PREVENTING STATE OFFICERS FROM COMPELLING DISCLOSURE OF
FACTS WHICH MIGHT TEND TO INCRIMINATE THE WITNESS UNDER FEDERAL LAW,
EVEN THOUGH HE HAS BEEN GRANTED FULL IMMUNITY FROM STATE PROSECUTION. 
PEOPLE V. DENUYL, 318 MICH. 645, 29 N.W.2D 284.  CF. STATE EX REL.
DORAN V. DORAN, 215 LA. 151, 39 SO. 2D 894. 

FN2  CONTRAST BRAM V. UNITED STATES, 168 U.S. 532, WHERE THIS COURT
RULED THAT AN INVOLUNTARY CONFESSION COULD NOT BE USED IN A FEDERAL
PROSECUTION EVEN THOUGH IT WAS PROCURED BY OFFICERS OF A FOREIGN NATION
OUTSIDE THE UNITED STATES.  AND SEE ASHCRAFT V. TENNESSEE, 322 U.S.
143, AT 155, WHERE WE DECLARED THAT "THE CONSTITUTION OF THE UNITED
STATES STANDS AS A BAR AGAINST THE CONVICTION OF ANY INDIVIDUAL IN AN
AMERICAN COURT BY MEANS OF A COERCED CONFESSION."  IT SEEMS TO ME THAT
THERE WAS AT LEAST AS MUCH COERCION IN FELDMAN AS IN EITHER OF THESE
CASES. 
..END :










GORE V. UNITED STATES 357 U.S. 386 


NO. 668.  ARGUED MAY 19, 1958 - DECIDED JUNE 30, 1958 - 100 U.S. APP.
D.C. 315, 244 F.2D 763, AFFIRMED. 


CONVICTED IN A FEDERAL COURT ON SIX COUNTS FOR VIOLATING THREE
DIFFERENT SECTIONS OF FEDERAL LAW BY A SINGLE SALE OF NARCOTICS ON EACH
OF TWO DIFFERENT DAYS, PETITIONER WAS SENTENCED TO THREE CONSECUTIVE
TERMS FOR EACH DAY'S SALE, THE TERMS FOR EACH DAY'S SALE TO RUN
CONCURRENTLY WITH THOSE FOR THE OTHER DAY'S SALE.  HE MOVED UNDER 28
U.S.C. SEC.  2255 TO VACATE THE SENTENCES AS UNLAWFUL.  HELD:  THE
SENTENCES WERE NOT UNLAWFUL.  PP. 387-393. 

(A)  THE COURT ADHERES TO THE DECISION IN BLOCKBURGER V. UNITED
STATES, 284 U.S. 299.  PP. 388-393. 

(B)  THOUGH THE THREE SECTIONS HERE INVOLVED GREW OUT OF A SINGLE
PURPOSE TO OUTLAW NON-MEDICAL SALES OF NARCOTICS, THEY GREW OUT OF
THREE DIFFERENT LAWS ENACTED AT DIFFERENT TIMES, FOR EACH OF WHICH
CONGRESS HAS PROVIDED A SEPARATE PUNISHMENT, AND CONGRESS DID NOT
INTEND THAT VIOLATIONS OF ALL THREE SHOULD BE TREATED AS A SINGLE
OFFENSE WHEN COMMITTED THROUGH A SINGLE SALE.  PP. 390-391. 

(C)  BELL V. UNITED STATES, 349 U.S. 81, DISTINGUISHED.  PP. 391
392. 

(D)  THE RESULT HERE REACHED DOES NOT OFFEND THE CONSTITUTIONAL
PROHIBITION OF DOUBLE JEOPARDY.  PP. 392-393. 

(E)  THE QUESTION OF POLICY INVOLVED IS FOR CONGRESS TO DECIDE, AND
THIS COURT HAS NO POWER TO INCREASE OR REDUCE SENTENCES FOR SUCH
OFFENSES.  P. 393. 

GORE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROSECUTION UNDER AN INDICTMENT CONTAINING SIX COUNTS FOR
NARCOTICS OFFENSES.  FOUR COUNTS WERE BASED ON PROVISIONS OF THE
INTERNAL REVENUE CODE OF 1954 AND TWO COUNTS ON THE NARCOTIC DRUGS
IMPORT AND EXPORT ACT, AS AMENDED.  THE FIRST THREE COUNTS DERIVE FROM
A SALE ON FEBRUARY 26, 1955, OF TWENTY CAPSULES OF HEROIN AND THREE
CAPSULES OF COCAINE; THE LAST THREE COUNTS DERIVE FROM A SALE OF THIRTY
FIVE CAPSULES OF HEROIN ON FEBRUARY 28, 1955.  COUNTS ONE AND FOUR
CHARGED THE SALE OF THE DRUGS ON THE RESPECTIVE DATES, NOT "IN
PURSUANCE OF A WRITTEN ORDER" OF THE PERSON TO WHOM THE DRUGS WERE SOLD
ON THE REQUISITE TREASURY FORM, IN VIOLATION OF SEC. 4705(A) OF THE
INTERNAL REVENUE CODE OF 1954.  COUNTS TWO AND FIVE CHARGED THE SALE
AND DISTRIBUTION OF THE DRUGS ON THE RESPECTIVE DATES NOT "IN THE
ORIGINAL STAMPED PACKAGE OR FROM THE ORIGINAL STAMPED PACKAGE," IN
VIOLATION OF SEC. 4704(A) OF THE INTERNAL REVENUE CODE OF 1954.  COUNTS
THREE AND SIX CHARGED FACILITATING CONCEALMENT AND SALE OF THE DRUGS ON
THE RESPECTIVE DATES, WITH KNOWLEDGE THAT THE DRUGS HAD BEEN UNLAWFULLY
IMPORTED, IN VIOLATION OF SEC. 2(C) OF THE NARCOTIC DRUGS IMPORT AND
EXPORT ACT, (FN1) AS AMENDED BY THE ACT OF NOVEMBER 2, 1951, 65 STAT.
767.  IN SHORT, CONGRESS HAD MADE THREE DISTINCT OFFENSES IN CONNECTION
WITH THE VENDING OF ILLICIT DRUGS, AND THE PETITIONER, HAVING VIOLATED
THESE THREE INDEPENDENT PROVISIONS, WAS PROSECUTED FOR ALL THREE AS
SEPARATE WRONGDOINGS, DESPITE THE FACT THAT THESE VIOLATIONS OF WHAT
CONGRESS HAD PROSCRIBED WERE COMPENDIOUSLY COMMITTED IN SINGLE
TRANSACTIONS OF VENDING.  DULY TRIED BEFORE A JURY, PETITIONER WAS
CONVICTED, AND NO QUESTION TOUCHING THE CONVICTION IS BEFORE US.  IN
CONTROVERSY IS THE LEGALITY OF THE SENTENCES IMPOSED BY THE TRIAL
COURT.  THESE WERE IMPRISONMENT FOR A TERM OF ONE TO FIVE YEARS,
IMPOSED ON EACH COUNT, THE SENTENCES ON THE FIRST THREE COUNTS TO RUN
CONSECUTIVELY, THE SENTENCES ON THE REMAINING THREE COUNTS TO RUN
CONCURRENTLY WITH THOSE ON THE FIRST THREE COUNTS.  THUS THE TOTAL
SENTENCE WAS THREE TO FIFTEEN YEARS.  PETITIONER MOVED, UNDER 28 U.S.C.
SEC. 2255, TO VACATE THE SENTENCE, CLAIMING THAT FOR ALL THREE COUNTS A
SENTENCE AS FOR ONLY ONE COUNT COULD BE IMPOSED.  THE MOTION WAS DENIED
AND THE COURT OF APPEALS AFFIRMED, 100 U.S. APP. D.C. 315, 244 F.2D
763, WITH EXPRESSIONS OF DOUBT BY TWO OF THE JUDGES, WHO FELT
THEMSELVES BOUND BY BLOCKBURGER V. UNITED STATES, 284 U.S. 299.  WE
BROUGHT THE CASE HERE, 355 U.S. 903, IN ORDER TO CONSIDER WHETHER SOME
OF OUR MORE RECENT DECISIONS, WHILE NOT QUESTIONING BLOCKBURGER BUT
MOVING IN RELATED AREAS, MAY NOT HAVE IMPAIRED ITS AUTHORITY. 

WE ADHERE TO THE DECISION IN BLOCKBURGER V. UNITED STATES, SUPRA.
THE CONSIDERATIONS ADVANCED IN SUPPORT OF THE VIGOROUS ATTACK AGAINST
IT HAVE LEFT ITS JUSTIFICATION UNDISTURBED, NOR HAVE OUR LATER
DECISIONS GENERATED COUNTER CURRENTS. 

THAT THE BLOCKBURGER OPINION DID NOT LAY OUT WITH PARTICULARITY THE
COURSE OF ANTI-NARCOTICS LEGISLATION IS SCANT BASIS FOR SUGGESTING THAT
THE COURT WAS UNAWARE OF IT OR DID NOT DULY HEED THE RELEVANT CRITERIA
FOR STATUTORY CONSTRUCTION IN DEALING WITH THE SPECIFIC LEGISLATION
BEFORE IT. THE COURT WAS NOT AN INNOCENT IN THE HISTORY OF NARCOTICS
LEGISLATION.  BLOCKBURGER WAS NOT THE FIRST CASE THAT BROUGHT
PROSECUTIONS UNDER SUCCESSIVE ENACTMENTS DEALING WITH THE CONTROL OF
NARCOTICS BEFORE THE COURT.  AT THE TIME OF BLOCKBURGER, IT WAS NOT
CUSTOMARY TO MAKE THE WHOLE LEGISLATIVE HISTORY CONNECTED WITH
PARTICULAR STATUTES IN ADJUDICATION PART OF THE CONVENTIONAL APPARATUS
OF AN OPINION.  WHAT IS MORE TO THE POINT ABOUT THE BLOCKBURGER
DECISION IS THAT THE UNANIMOUS COURT THAT RENDERED IT THEN INCLUDED
THREE JUSTICES CONSPICUOUS FOR THEIR ALERTNESS IN SAFEGUARDING THE
INTERESTS OF DEFENDANTS IN CRIMINAL CASES AND IN THEIR INSISTENCE ON
THE COMPASSIONATE REGARD FOR SUCH INTERESTS.  INVIDIOUSNESS IS NOT
IMPLIED IN SAYING THAT MR. JUSTICE BRANDEIS, MR. JUSTICE BUTLER AND MR.
JUSTICE ROBERTS (FN2) WOULD NOT HAVE JOINED IN FINDING THAT CONGRESS
ESTABLISHED INDEPENDENT CURBS AS TACTICAL DETAILS IN THE STRATEGY
AGAINST ILLICIT NARCOTICS TRADE, IF IT COULD BE REASONABLY MAINTAINED
THAT WHAT IN FACT CONGRESS WAS DOING WAS MERELY GIVING DIFFERENT LABELS
TO THE SAME THING.  THE FACT THAT AN OFFENDER VIOLATES BY A SINGLE
TRANSACTION SEVERAL REGULATORY CONTROLS DEVISED BY CONGRESS AS MEANS
FOR DEALING WITH A SOCIAL EVIL AS DELETERIOUS AS IT IS DIFFICULT TO
COMBAT DOES NOT MAKE THE SEVERAL DIFFERENT REGULATORY CONTROLS SINGLE
AND IDENTIC.  IN BLOCKBURGER, THE OFFENDER WAS INDICTED, CONVICTED, AND
CUMULATIVELY SENTENCED FOR TWO SEPARATE OFFENSES:  SELLING FORBIDDEN
DRUGS NOT "IN THE ORIGINAL STAMPED PACKAGE" (NOW SEC. 4704(A) OF THE
INTERNAL REVENUE CODE), AND OF SELLING SUCH DRUGS NOT "IN PURSUANCE OF
A WRITTEN ORDER OF THE PERSON TO WHOM SUCH ARTICLE IS SOLD" (NOW SEC.
4705(A) OF THE INTERNAL REVENUE CODE).  THE PETITIONER HERE WAS
LIKEWISE INDICTED, TRIED, CONVICTED AND CUMULATIVELY SENTENCED FOR THE
TWO FOREGOING OFFENSES AND, IN ADDITION, FOR VIOLATING THE AMENDED SEC.
2(C) OF THE NARCOTIC DRUGS IMPORT AND EXPORT ACT.  AND SO WHILE
BLOCKBURGER WAS SENTENCED TO TEN YEARS FOR THE TWO OFFENSES, PETITIONER
WAS SENTENCED TO A MIXIMUM OF FIFTEEN YEARS.  THE COURT OF APPEALS
INEVITABLY FOUND THE BLOCKBURGER CASE CONTROLLING. 

WE ARE STRONGLY URGED TO RECONSIDER BLOCKBURGER BY READING THE
VARIOUS SPECIFIC ENACTMENTS OF CONGRESS AS REFLECTING A UNITARY
CONGRESSIONAL PURPOSE TO OUTLAW NON-MEDICINAL SALES OF NARCOTICS.  FROM
THIS THE CONCLUSION IS SOUGHT TO BE DRAWN THAT SINCE CONGRESS HAD ONLY
A SINGLE PURPOSE, NO MATTER HOW NUMEROUS THE VIOLATIONS BY AN OFFENDER,
OF THE SPECIFIC MEANS FOR DEALING WITH THIS UNITARY PURPOSE, THE DESIRE
SHOULD BE ATTRIBUTED TO CONGRESS TO PUNISH ONLY AS FOR A SINGLE OFFENSE
WHEN THESE MULTIPLE INFRACTIONS ARE COMMITTED THROUGH A SINGLE SALE. 
WE AGREE WITH THE STARTING POINT, BUT IT LEADS US TO THE OPPOSITE
CONCLUSION.  OF COURSE THE VARIOUS ENACTMENTS BY CONGRESS EXTENDING
OVER NEARLY HALF A CENTURY CONSTITUTE A NETWORK OF PROVISIONS, STEADILY
TIGHTENED AND ENLARGED, FOR GRAPPLING WITH A POWERFUL, SUBTLE AND
ELUSIVE ENEMY.  IF THE LEGISLATION REVEALS ANYTHING, IT REVEALS THE
DETERMINATION OF CONGRESS TO TURN THE SCREW OF THE CRIMINAL MACHINERY -
DETECTION, PROSECUTION AND PUNISHMENT - TIGHTER AND TIGHTER.  THE THREE
PENAL LAWS FOR WHICH PETITIONER WAS CONVICTED HAVE DIFFERENT ORIGINS
BOTH IN TIME AND IN DESIGN.  THE PRESENT SEC. 2(C) OF THE NARCOTIC
DRUGS IMPORT AND EXPORT ACT DERIVES FROM AN ENACTMENT OF FEBRUARY 9,
1909, SEC. 2, 35 STAT.  614.  THE PRESENT SEC. 4705(A) OF THE INTERNAL
REVENUE CODE OF 1954 DERIVES FROM THE ACT OF DECEMBER 17, 1914, SEC. 2,
38 STAT. 785, 786.  THE PRESENT SEC. 4704(A) OF THE INTERNAL REVENUE
CODE OF 1954 DERIVES FROM THE REVENUE ACT OF 1918, SEC. 1006, 40 STAT.
1057, 1130 (1919).  (FN3)  IT SEEMS MORE DARING THAN CONVINCING TO
SUGGEST THAT THREE DIFFERENT ENACTMENTS, EACH RELATING TO A SEPARATE
WAY OF CLOSING IN ON ILLICIT DISTRIBUTION OF NARCOTICS, PASSED AT THREE
DIFFERENT PERIODS, FOR EACH OF WHICH A SEPARATE PUNISHMENT WAS DECLARED
BY CONGRESS, SOMEHOW OR OTHER OUGHT TO HAVE CARRIED WITH THEM AN
IMPLIED INDICATION BY CONGRESS THAT IF ALL THESE THREE DIFFERENT
RESTRICTIONS WERE DISREGARDED BUT, FORSOOTH, IN THE COURSE OF ONE
TRANSACTION, THE DEFENDANT SHOULD BE TREATED AS THOUGH HE COMMITTED
ONLY ONE OF THESE OFFENSES. 

THIS SITUATION IS TOTO COELO DIFFERENT FROM THE ONE THAT LED TO OUR
DECISION IN BELL V. UNITED STATES, 349 U.S. 81.  THAT CASE INVOLVED
APPLICATION OF THE MANN ACT - A SINGLE PROVISION MAKING IT A CRIME TO
TRANSPORT A WOMAN IN INTERSTATE COMMERCE FOR PURPOSES OF PROSTITUTION. 
WE HELD THAT THE TRANSPORTATION OF MORE THAN ONE WOMAN AS A SINGLE
TRANSACTION IS TO BE DEALT WITH AS A SINGLE OFFENSE, FOR THE REASON
THAT WHEN CONGRESS HAS NOT EXPLICITLY STATED WHAT THE UNIT OF OFFENSE
IS, THE DOUBT WILL BE JUDICIALLY RESOLVED IN FAVOR OF LENITY.  IT IS
ONE THING FOR A SINGLE TRANSACTION TO INCLUDE SEVERAL UNITS RELATING TO
PROSCRIBED CONDUCT UNDER A SINGLE PROVISION OF A STATUTE.  IT IS A
WHOLLY DIFFERENT THING TO EVOLVE A RULE OF LENITY FOR THREE VIOLATIONS
OF THREE SEPARATE OFFENSES CREATED BY CONGRESS AT THREE DIFFERENT
TIMES, ALL TO THE END OF DEALING MORE AND MORE STRICTLY WITH, AND
SEEKING TO THROTTLE MORE AND MORE BY DIFFERENT LEGAL DEVICES, THE
TRAFFIC IN NARCOTICS.  BOTH IN THE UNFOLDING OF THE SUBSTANTIVE
PROVISIONS OF LAW AND IN THE SCALE OF PUNISHMENTS, CONGRESS HAS
MANIFESTED AN ATTITUDE NOT OF LENITY BUT OF SEVERITY TOWARD VIOLATION
OF THE NARCOTICS LAWS.  NOR NEED WE BE DETAINED BY TWO OTHER CASES
RELIED ON, UNITED STATES V. UNIVERSAL C.I.T. CREDIT CORP., 344 U.S.
218, AND PRINCE V. UNITED STATES, 352 U.S. 322.  IN THE FORMER WE
CONSTRUED THE RECORD-KEEPING PROVISIONS OF THE FAIR LABOR STANDARDS ACT
AS PUNISHING "A COURSE OF CONDUCT."  OF THE PRINCE CASE, IT SUFFICES TO
SAY THAT THE COURT WAS DEALING THERE "WITH A UNIQUE STATUTE OF LIMITED
PURPOSE."  352 U.S., AT 325. 

FINALLY, WE HAVE HAD PRESSED UPON US THAT THE BLOCKBURGER DOCTRINE
OFFENDS THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY.  IF
THERE IS ANYTHING TO THIS CLAIM IT SURELY HAS LONG BEEN DISREGARDED IN
DECISIONS OF THIS COURT, PARTICIPATED IN BY JUDGES ESPECIALLY SENSITIVE
TO THE APPLICATION OF THE HISTORIC SAFEGUARD OF DOUBLE JEOPARDY.  IN
APPLYING A PROVISION LIKE THAT OF DOUBLE JEOPARDY, WHICH IS ROOTED IN
HISTORY AND IS NOT AN EVOLVING CONCEPT LIKE THAT OF DUE PROCESS, A LONG
COURSE OF ADJUDICATION IN THIS COURT CARRIES IMPRESSIVE AUTHORITY. 
CERTAINLY IF PUNISHMENT FOR EACH OF SEPARATE OFFENSES AS THOSE FOR
WHICH THE PETITIONER HERE HAS BEEN SENTENCED, AND NOT MERELY DIFFERENT
DESCRIPTIONS OF THE SAME OFFENSE, IS CONSTITUTIONALLY BEYOND THE POWER
OF CONGRESS TO IMPOSE, NOT ONLY BLOCKBURGER BUT AT LEAST THE FOLLOWING
CASES WOULD ALSO HAVE TO BE OVERRULED: CARTER V. MCCLAUGHRY, 183 U.S.
365; MORGAN V. DEVINE, 237 U.S. 632; ALBRECHT V. UNITED STATES, 273
U.S. 1; PINKERTON V. UNITED STATES, 328 U.S. 640; AMERICAN TOBACCO CO.
V. UNITED STATES, 328 U.S. 781; UNITED STATES V. MICHENER, 331 U.S.
789; PEREIRA V. UNITED STATES, 347 U.S. 1. 

SUPPOSE CONGRESS, INSTEAD OF ENACTING THE THREE PROVISIONS BEFORE US,
HAD PASSED AN ENACTMENT SUBSTANTIALLY IN THIS FORM:  "ANYONE WHO SELLS
DRUGS EXCEPT FROM THE ORIGINAL STAMPED PACKAGE AND WHO SELLS SUCH DRUGS
NOT IN PURSUANCE OF A WRITTEN ORDER OF THE PERSON TO WHOM THE DRUG IS
SOLD, AND WHO DOES SO BY WAY OF FACILITATING THE CONCEALMENT AND SALE
OF DRUGS KNOWING THE SAME TO HAVE BEEN UNLAWFULLY IMPORTED, SHALL BE
SENTENCED TO NOT LESS THAN FIFTEEN YEARS' IMPRISONMENT:  PROVIDED,
HOWEVER, THAT IF HE MAKES SUCH SALE IN PURSUANCE OF A WRITTEN ORDER OF
THE PERSON TO WHOM THE DRUG IS SOLD HE SHALL BE SENTENCED TO ONLY TEN
YEARS' IMPRISONMENT:  PROVIDED FURTHER, THAT IF HE SELLS SUCH DRUGS IN
THE ORIGINAL STAMPED PACKAGE HE SHALL ALSO BE SENTENCED TO ONLY TEN
YEARS' IMPRISONMENT:  AND PROVIDED FURTHER, THAT IF HE SELLS SUCH DRUGS
IN PURSUANCE OF A WRITTEN ORDER AND FROM A STAMPED PACKAGE, HE SHALL BE
SENTENCED TO ONLY FIVE YEARS' IMPRISONMENT."  IS IT CONCEIVABLE THAT
SUCH A STATUTE WOULD NOT BE WITHIN THE POWER OF CONGRESS?  AND IS IT
RATIONAL TO FIND SUCH A STATUTE CONSTITUTIONAL BUT TO STRIKE DOWN THE
BLOCKBURGER DOCTRINE AS VIOLATIVE OF THE DOUBLE JEOPARDY CLAUSE? 

IN EFFECT, WE ARE ASKED TO ENTER THE DOMAIN OF PENOLOGY, AND MORE
PARTICULARLY THAT TANTALIZING ASPECT OF IT, THE PROPER APPORTIONMENT OF
PUNISHMENT.  WHATEVER VIEWS MAY BE ENTERTAINED REGARDING SEVERITY OF
PUNISHMENT, WHETHER ONE BELIEVES IN ITS EFFICACY OR ITS FUTILITY, SEE
RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL LAW:  THE MOVEMENT FOR
REFORM, 1750-1833, PASSIM, THESE ARE PECULIARLY QUESTIONS OF
LEGISLATIVE POLICY.  EQUALLY SO ARE THE MUCH MOOTED PROBLEMS RELATING
TO THE POWER OF THE JUDICIARY TO REVIEW SENTENCES.  FIRST THE ENGLISH
AND THEN THE SCOTTISH COURT OF CRIMINAL APPEAL WERE GIVEN POWER TO
REVISE SENTENCES, THE POWER TO INCREASE AS WELL AS THE POWER TO REDUCE
THEM.  SEE 7 EDW.  VII, C. 23, SEC. 4(3); 16-17 GEO. V, C. 15, SEC.
2(4).  THIS COURT HAS NO SUCH POWER.  AFFIRMED. 

FN1  35 STAT. 614, AS AMENDED.  THIS PROVISION WAS SUBSEQUENTLY
AMENDED, 70 STAT. 570, 21 U.S.C. (SUPP. V) SEC. 174. 

FN2  FOR TYPICAL EXPRESSIONS OF THE ATTITUDES OF THESE MEMBERS OF THE
COURT, SEE, E.G., HORNING V. DISTRICT OF COLUMBIA, 254 U.S. 135, 139
(DISSENTING OPINION OF BRANDEIS, J.); BURDEAU V. MCDOWELL, 256 U.S.
465, 476 (SAME); OLMSTEAD V. UNITED STATES, 277 U.S. 438, 471, 485
(DISSENTING OPINIONS OF BRANDEIS AND BUTLER, JJ.); SORRELLS V. UNITED
STATES, 287 U.S. 435, 453 (SEPARATE OPINION OF ROBERTS, J., JOINED BY
BRANDEIS, J.); SNYDER V. MASSACHUSETTS, 291 U.S. 97, 123 (DISSENTING
OPINION OF ROBERTS, J., JOINED BY BRANDEIS AND BUTLER, JJ.); PALKO V.
CONNECTICUT, 302 U.S. 319, 329 (DISSENT OF BUTLER, J.).    FN3  THIS
STATUTE, AMENDATORY OF THE 1914 ACT, SUPRA, INTRODUCED THE "ORIGINAL
STAMPED PACKAGE" CONCEPT. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

THE PROBLEM OF MULTIPLE PUNISHMENT IS A VEXING AND RECURRING ONE.  IT
ARISES IN ONE OF TWO BROAD CONTEXTS:  (A) A STATUTE OR A PORTION
THEREOF PROSCRIBES DESIGNATED CONDUCT, AND THE QUESTION IS WHETHER THE
DEFENDANT'S CONDUCT CONSTITUTES MORE THAN ONE VIOLATION OF THIS
PROSCRIPTION.  THUS, MURDERING TWO PEOPLE SIMULTANEOUSLY MIGHT WELL
WARRANT TWO PUNISHMENTS BUT STEALING TWO ONE-DOLLAR BILLS MIGHT NOT. 
(B) TWO STATUTES OR TWO PORTIONS OF A SINGLE STATUTE PROSCRIBE CERTAIN
CONDUCT, AND THE QUESTION IS WHETHER THE DEFENDANT CAN BE PUNISHED
TWICE BECAUSE HIS CONDUCT VIOLATES BOTH PROSCRIPTIONS.  THUS, SELLING
LIQUOR ON A SUNDAY MIGHT WARRANT TWO PUNISHMENTS FOR VIOLATING A
PROHIBITION LAW AND A BLUE LAW, BUT FELONIOUSLY ENTERING A BANK AND
ROBBING A BANK, THOUGH VIOLATIVE OF TWO STATUTES, MIGHT WARRANT BUT A
SINGLE PUNISHMENT. 

IN EVERY INSTANCE THE PROBLEM IS TO ASCERTAIN WHAT THE LEGISLATURE
INTENDED.  OFTEN THE INQUIRY PRODUCES FEW IF ANY ENLIGHTENING RESULTS. 
NORMALLY THESE ARE NOT PROBLEMS THAT RECEIVE EXPLICIT LEGISLATIVE
CONSIDERATION.  BUT THIS FACT SHOULD NOT LEAD THE JUDICIARY, CHARGED
WITH THE OBLIGATION OF CONSTRUING THESE STATUTES, TO SETTLE SUCH
QUESTIONS BY THE EASY APPLICATION OF STEREOTYPED FORMULAE.  IT IS AT
THE SAME TIME TOO EASY AND TOO ARBITRARY TO APPLY A PRESUMPTION FOR OR
AGAINST MULTIPLE PUNISHMENT IN ALL CASES OR EVEN TO DO SO ONE WAY IN
ONE CLASS OF CASES AND THE OTHER WAY IN ANOTHER.  PLACING A CASE IN THE
CATEGORY OF UNIT-OF-OFFENSE PROBLEMS OR THE CATEGORY OF OVERLAPPING
STATUTE PROBLEMS MAY POINT UP THE ISSUE, BUT IT DOES NOT RESOLVE IT. 

WHERE THE LEGISLATURE HAS FAILED TO MAKE ITS INTENTION MANIFEST,
COURTS SHOULD PROCEED CAUTIOUSLY, REMAINING SENSITIVE TO THE INTERESTS
OF DEFENDANT AND SOCIETY ALIKE.  ALL RELEVANT CRITERIA MUST BE
CONSIDERED AND THE MOST USEFUL AID WILL OFTEN BE COMMON SENSE.  IN THIS
CASE I AM PERSUADED, ON THE BASIS OF THE ORIGINS OF THE THREE STATUTES
INVOLVED, THE TEXT AND BACKGROUND OF RECENT AMENDMENTS TO THESE
STATUTES, THE SCALE OF PUNISHMENTS PRESCRIBED FOR SECOND AND THIRD
OFFENDERS, AND THE EVIDENT LEGISLATIVE PURPOSE TO ACHIEVE UNIFORMITY IN
SENTENCES, THAT THE PRESENT PURPOSE OF THESE STATUTES IS TO MAKE SURE
THAT A PROSECUTOR HAS THREE AVENUES BY WHICH TO PROSECUTE ONE WHO
TRAFFICS IN NARCOTICS, AND NOT TO AUTHORIZE THREE CUMULATIVE
PUNISHMENTS FOR THE DEFENDANT WHO CONSUMATES A SINGLE SALE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE FIRST THREE COUNTS OF THIS INDICTMENT COVER ONE SALE OF NARCOTICS
MADE ON FEBRUARY 26, 1955.  THE ONE SALE WAS BROKEN DOWN FOR PURPOSES
OF THE THREE COUNTS INTO THREE CRIMES: 

(1)  PETITIONER MADE THE SALE "NOT IN PURSUANCE OF A WRITTEN ORDER"
WHICH IS CONTRARY TO THE REQUIREMENT OF 68A STAT. 551, 26 U.S.C. (SUPP.
V) SEC. 4705(A). 

(2)  THE NARCOTICS WERE SOLD "NOT IN THE ORIGINAL STAMPED PACKAGE"
WHICH IS CONTRARY TO THE REQUIREMENTS OF 68A STAT. 550, 26 U.S.C.
(SUPP. V) SEC. 4704(A). 

(3)  PETITIONER "FACILITATED THE CONCEALMENT AND SALE" WHICH IS IN
VIOLATION OF 65 STAT. 767, 21 U.S.C. SEC. 174. 

ANOTHER SINGLE SALE, ONE MADE ON FEBRUARY 28, 1955, WAS LIKEWISE
BROKEN DOWN INTO THREE SEPARATE AND DISTINCT CRIMES. 

CONSECUTIVE SENTENCES WERE IMPOSED FOR THE THREE CRIMES RESULTING
FROM THE FIRST SALE.  SENTENCES IMPOSED FOR THE THREE CRIMES RESULTING
FROM THE SECOND SALE WERE MADE TO RUN CONCURRENTLY WITH EACH OTHER AND
WITH THE SENTENCES IMPOSED FOR THE THREE OFFENSES RESULTING FROM THE
FIRST SALE. 

PLAINLY, CONGRESS DEFINED THREE DISTINCT CRIMES, GIVING THE
PROSECUTOR ON THESE FACTS A CHOICE.  BUT I DO NOT THINK THE COURTS WERE
WARRANTED IN PUNISHING PETITIONER THREE TIMES FOR THE SAME
TRANSACTION.  I REALIZE THAT BLOCKBURGER V. UNITED STATES, 284 U.S.
299, HOLDS TO THE CONTRARY.  BUT I WOULD OVERRULE THAT CASE. 

I FIND THAT COURSE NECESSARY BECAUSE OF MY VIEWS ON DOUBLE JEOPARDY,
RECENTLY EXPRESSED IN HOAG V. NEW JERSEY, 356 U.S. 464.  AND SEE CIUCCI
V. ILLINOIS, 356 U.S. 571.  ONCE A CRUCIAL ISSUE IS LITIGATED IN A
CRIMINAL CASE THAT ISSUE MAY NOT BE THE BASIS OF ANOTHER PROSECUTION. 
HERE THE SAME SALE IS MADE TO DO SERVICE FOR THREE PROSECUTIONS.  THE
DIFFERENT EVIDENCE TEST, WHICH WAS ADOPTED WITHOUT MUCH ANALYSIS BY THE
COURT IN CARTER V. MCCLAUGHRY, 183 U.S. 365, 394-395 (CF. EX PARTE
NIELSEN, 131 U.S. 176), WOULD PERMIT THE PRACTICE.  YET I AGREE WITH
BISHOP:  "  ...  IN PRINCIPLE, AND BY THE BETTER JUDICIAL VIEW, WHILE
THE LEGISLATURE MAY PRONOUNCE AS MANY COMBINATIONS OF THINGS AS IT
PLEASES CRIMINAL, RESULTING NOT UNFREQUENTLY IN A PLURALITY OF CRIMES
IN ONE TRANSACTION OR EVEN IN ONE ACT, FOR ANY ONE OF WHICH THERE MAY
BE A CONVICTION WITHOUT REGARD TO THE OTHERS, IT IS, IN THE LANGUAGE OF
COCKBURN, C.J., 'A FUNDAMENTAL RULE OF LAW THAT OUT OF THE SAME FACTS A
SERIES OF CHARGES SHALL NOT BE PREFERRED.'"*  1 CRIMINAL LAW (9TH ED.
1923) SEC. 1060.  I THINK IT IS TIME THAT THE DOUBLE JEOPARDY CLAUSE
WAS LIBERALLY CONSTRUED IN LIGHT OF ITS GREAT HISTORIC PURPOSE TO
PROTECT THE CITIZEN FROM MORE THAN ONE TRIAL FOR THE SAME ACT. 

*REGINA V. ELRINGTON, 9 COX C.C. 86, 90, 1 B.&S. 688. 

THAT ANALYSIS WAS ADOPTED BY THE COURT IN BALLERINI V. ADERHOLT, 44
F.2D 352, 353, A CASE CLOSE ON ITS FACTS TO THE PRESENT ONE.  THERE TWO
COUNTS WERE CHARGED FROM ONE SALE: (1) A SALE WITHOUT REGISTRATION AND
PAYMENT OF THE TAX AND (2) A SALE WITHOUT REQUIRING A WRITTEN ORDER. 
THE COURT SAID: 

"THE OFFENSE CHARGED IN EACH COUNT WAS THE UNLAWFUL SALE OF THE SAME
OUNCE OF HEROIN.  AS THERE WAS BUT ONE SALE, IT WOULD SEEM TO FOLLOW
THAT THERE WAS BUT ONE CRIMINAL ACT COMMITTED AGAINST THE LAWS OF THE
UNITED STATES.  THE FAILURE OF APPELLANT TO REGISTER AND PAY THE
SPECIAL TAX, AS CHARGED IN THE FIRST COUNT, OR TO OBTAIN A WRITTEN
ORDER, AS CHARGED IN THE SECOND COUNT, COULD NOT HAVE BEEN THE BASIS OF
A CRIMINAL PROSECUTION.  IT WAS ONLY IN THE EVENT OF A SALE THAT SUCH
FAILURE COULD BECOME MATERIAL.  AT LAST IT WAS THE SALE, AND NOT THE
FAILURE TO REGISTER, PAY THE TAX, OR SECURE THE WRITTEN ORDER, THAT
CONSTITUTED THE OFFENSE." 

CF.  MR. JUSTICE RUTLEDGE CONCURRING IN DISTRICT OF COLUMBIA V.
BUCKLEY, 75 U.S. APP.  D.C. 301, 305, 128 F.2D 17, 21. 

I WOULD READ THE THREE PRESENT STATUTES FROM THAT APPROACH.  I WOULD
HOLD THAT THE PROSECUTOR WAS GIVEN THE CHOICE OF ONE OF THREE
PROSECUTIONS FOR THIS SINGLE SALE.  I WOULD RESIST A READING WHICH
INFERRED THAT CONGRESS INTENDED MULTIPLE OFFENSES FROM THE SAME SALE,
FOR THAT WOULD NOT MAKE THE STATUTES SQUARE WITH THE CONSTITUTION. 

MR. JUSTICE BRENNAN, DISSENTING. 

EVEN ASSUMING THE VITALITY OF BLOCKBURGER V. UNITED STATES, 284 U.S.
299, I MUST DISSENT FROM THE DISPOSITION OF THIS CASE.  IN BLOCKBURGER
THE COURT HELD THAT MULTIPLE PUNISHMENT MIGHT BE IMPOSED AS THE
CONSEQUENCE OF A SINGLE SALE OF NARCOTICS, PROVIDED THAT SEPARATE
STATUTORY OFFENSES WERE INVOLVED IN THE SAME TRANSACTION.  IN
DETERMINING WHETHER THERE WERE SEPARATE STATUTORY OFFENSES THE COURT
SAID: 

"THE APPLICABLE RULE IS THAT WHERE THE SAME ACT OR TRANSACTION
CONSTITUTES A VIOLATION OF TWO DISTINCT STATUTORY PROVISIONS, THE TEST
TO BE APPLIED TO DETERMINE WHETHER THERE ARE TWO OFFENSES OR ONLY ONE,
IS WHETHER EACH PROVISION REQUIRES PROOF OF A FACT WHICH THE OTHER DOES
NOT."  284 U.S., AT 304. 

THE COURT'S DECISION TODAY IS INCONSISTENT WITH THE PRINCIPLES OF
BLOCKBURGER BECAUSE IT ALLOWS SEPARATE OFFENSES TO BE PROVED AND
SEPARATE PUNISHMENTS TO BE IMPOSED UPON THE PROOF OF A SINGLE FACT. 
THE PETITIONER HAS BEEN CONVICTED OF A SALE OF NARCOTICS "NOT FROM THE
ORIGINAL STAMPED PACKAGE" IN VIOLATION OF 26 U.S.C. (SUPP. V) SEC.
4704(A), AND FOR HAVING "FACILITATED THE CONCEALMENT AND SALE" OR
NARCOTICS IN VIOLATION OF 21 U.S.C. SEC. 174.  BUT SEC. 4704(A)
PROVIDES THAT "THE ABSENCE OF APPROPRIATE TAXPAID STAMPS FROM NARCOTIC
DRUGS SHALL BE PRIMA FACIE EVIDENCE OF A VIOLATION OF THIS SUBSECTION
BY THE PERSON IN WHOSE POSSESSION THE SAME MAY BE FOUND" AND SEC. 174
PROVIDES THAT "WHENEVER ON TRIAL FOR A VIOLATION OF THIS SUBSECTION THE
DEFENDANT IS SHOWN TO HAVE OR TO HAVE HAD POSSESSION OF THE NARCOTIC
DRUG, SUCH POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO AUTHORIZE
CONVICTION UNLESS THE DEFENDANT EXPLAINS THE POSSESSION TO THE
SATISFACTION OF THE JURY." 

THEREFORE UNDER THE STATUTES PROOF OF THE SINGLE FACT OF POSSESSION
OF UNSTAMPED NARCOTICS SUFFICES TO CONVICT THE DEFENDANT OF OFFENSES
UNDER EITHER SEC. 4704(A) OR SEC. 174.  SINCE UNDER BLOCKBURGER
PUNISHMENT UNDER SEPARATE SECTIONS CAN BE SUSTAINED ONLY IF "EACH
PROVISION REQUIRES PROOF OF A FACT WHICH THE OTHER DOES NOT," 284 U.S.,
AT 304, THE DECISION OF THE COURT BELOW SHOULD BE REVERSED. 
..END :























BEILAN V. BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PHILADELPHIA 357
U.S. 399 


NO. 63.  ARGUED MARCH 4, 1958.  - DECIDED JUNE 30, 1958.  - 386 PA. 82,
125 A.2D 327, AFFIRMED. 


PETITIONER, A TEACHER IN THE PUBLIC SCHOOLS OF PHILADELPHIA, REFUSED
TO ANSWER QUESTIONS RELATING TO COMMUNISTIC AFFILIATIONS AND ACTIVITIES
ASKED BY HIS SUPERINTENDENT, AFTER BEING WARNED THAT THE INQUIRY
RELATED TO HIS FITNESS TO BE A TEACHER AND THAT REFUSAL TO ANSWER MIGHT
LEAD TO HIS DISMISSAL.  AFTER ADMINISTRATIVE PROCEEDINGS IN WHICH HIS
LOYALTY AND HIS POLITICAL BELIEFS AND ASSOCIATIONS WERE NOT IN ISSUE,
THE BOARD OF EDUCATION FOUND THAT HIS REFUSAL TO ANSWER HIS
SUPERINTENDENT'S QUESTIONS CONSTITUTED "INCOMPETENCY," A GROUND FOR
DISCHARGE UNDER THE STATE TENURE STATUTE, AND DISCHARGED HIM.  THE
STATE SUPREME COURT SUSTAINED THIS ACTION.  HELD:  HIS DISCHARGE DID
NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP.
400-409. 

(A)  BY ENGAGING IN TEACHING IN PUBLIC SCHOOLS PETITIONER DID NOT
GIVE UP HIS RIGHT TO FREEDOM OF BELIEF, SPEECH OR ASSOCIATION; BUT HE
DID UNDERTAKE OBLIGATIONS OF FRANKNESS, CANDOR AND COOPERATION IN
ANSWERING INQUIRIES MADE BY HIS SUPERIOR EXAMINING INTO HIS FITNESS TO
SERVE AS A PUBLIC SCHOOL TEACHER.  P. 405. 

(B)  A MUNICIPAL EMPLOYER IS NOT DISABLED BECAUSE IT IS AN AGENCY OF
THE STATE FROM INQUIRY OF ITS EMPLOYEES AS TO MATTERS THAT MAY PROVE
RELEVANT TO THEIR FITNESS AND SUITABILITY FOR THE PUBLIC SERVICE. 
GARNER V. BOARD OF PUBLIC WORKS, 341 U.S. 716.  P. 405. 

(C)  THE QUESTIONS PETITIONER REFUSED TO ANSWER WERE RELEVANT TO HIS
FITNESS AND SUITABILITY AS A TEACHER, AND HIS DISCHARGE WAS BASED UPON
HIS INSUBORDINATION AND LACK OF FRANKNESS AND CANDOR IN REFUSING TO
ANSWER SUCH QUESTIONS - NOT UPON DISLOYALTY OR ANY OF THE ACTIVITIES
INQUIRED ABOUT.  PP. 405-406. 

(D)  THE FEDERAL CONSTITUTION DOES NOT REQUIRE THAT A TEACHER'S
CLASSROOM CONDUCT BE THE SOLE BASIS FOR DETERMING HIS FITNESS.  P.
406. 

(E)  THE STATE SUPREME COURT HELD THAT "INCOMPETENCY," WITHIN THE
MEANING OF THE RELEVANT STATE STATUTE, INCLUDES PETITIONER'S
"DELIBERATE AND INSUBORDINATE REFUSAL TO ANSWER THE QUESTIONS OF HIS
ADMINISTRATIVE SUPERIOR IN A VITALLY IMPORTANT MATTER PERTAINING TO HIS
FITNESS," AND THIS INTERPRETATION IS NOT INCONSISTENT WITH THE FEDERAL
CONSTITUTION.  PP.  406-408. 

(F)  PETITIONER'S CLAIM THAT HE WAS DENIED DUE PROCESS BECAUSE HE WAS
NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF HIS REFUSAL TO ANSWER
HIS SUPERINTENDENT'S QUESTIONS IS NOT SUPPORTED BY THE RECORD.  P.
408. 

(G) SLOCHOWER V. BOARD OF ECUCATION, 350 U.S. 551, AND KONIGSBERG V.
STATE BAR OF CALIFORNIA, 353 U.S. 252, DISTINGUISHED.  PP. 408-409. 

BEILAN V. BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PHILADELPHIA. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER THE BOARD OF PUBLIC EDUCATION FOR
THE SCHOOL DISTRICT OF PHILADELPHIA, PENNSYLVANIA, VIOLATED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES WHEN THE BOARD, PURPORTING TO ACT UNDER THE PENNSYLVANIA
PUBLIC SCHOOL CODE, DISCHARGED A PUBLIC SCHOOL TEACHER ON THE GROUND OF
"INCOMPETENCY," EVIDENCED BY THE TEACHER'S REFUSAL OF HIS
SUPERINTENDENT'S REQUEST TO CONFIRM OR REFUTE INFORMATION AS TO THE
TEACHER'S LOYALTY AND HIS ACTIVITIES IN CERTAIN ALLEGEDLY SUBVERSIVE
ORGANIZATIONS.  FOR THE REASONS HEREAFTER STATED, WE HOLD THAT IT DID
NOT. 

ON JUNE 25, 1952, HERMAN A. BEILAN, THE PETITIONER, WHO HAD BEEN A
TEACHER FOR ABOUT 22 YEARS IN THE PHILADELPHIA PUBLIC SCHOOL SYSTEM,
PRESENTED HIMSELF AT HIS SUPERINTENDENT'S OFFICE IN RESPONSE TO THE
LATTER'S REQUEST.  THE SUPERINTENDENT SAID HE HAD INFORMATION WHICH
REFLECTED ADVERSELY ON PETITIONER'S LOYALTY AND HE WANTED TO DETERMINE
ITS TRUTH OR FALSITY.  IN RESPONSE TO PETITIONER'S SUGGESTION THAT THE
SUPERINTENDENT DO THE QUESTIONING, THE LATTER SAID HE WOULD ASK ONE
QUESTION AND PETITIONER COULD THEN DETERMINE WHETHER HE WOULD ANSWER IT
AND OTHERS OF THAT TYPE.  THE SUPERINTENDENT, ACCORDINGLY, ASKED
PETITIONER WHETHER OR NOT HE HAD BEEN THE PRESS DIRECTOR OF THE
PROFESSIONAL SECTION OF THE COMMUNIST POLITICAL ASSOCIATION IN 1944. 
(FN1)  PETITIONER ASKED PERMISSION TO CONSULT COUNSEL BEFORE ANSWERING
AND THE SUPERINTENDENT GRANTED HIS REQUEST. 

ON OCTOBER 14, 1952, IN RESPONSE TO A SIMILAR REQUEST, PETITIONER
AGAIN PRESENTED HIMSELF AT THE SUPERINTENDENT'S OFFICE.  PETITIONER
STATED THAT HE HAD CONSULTED COUNSEL AND THAT HE DECLINED TO ANSWER THE
QUESTION AS TO HIS ACTIVITIES IN 1944.  HE ANNOUNCED HE WOULD ALSO
DECLINE TO ANSWER ANY OTHER "QUESTIONS SIMILAR TO IT," "QUESTIONS OF
THIS TYPE," OR "QUESTIONS ABOUT POLITICAL AND RELIGIOUS BELIEFS  ...
."  THE SUPERINTENDENT WARNED PETITIONER THAT THIS "WAS A VERY SERIOUS
AND A VERY IMPORTANT MATTER AND THAT FAILURE TO ANSWER THE QUESTIONS
MIGHT LEAD TO HIS DISMISSAL."  THE SUPERINTENDENT MADE IT CLEAR THAT HE
WAS INVESTIGATING "A REAL QUESTION OF FITNESS FOR PETITIONER TO BE A
TEACHER OR TO CONTINUE IN THE TEACHING WORK."  THESE INTERVIEWS WERE
GIVEN NO PUBLICITY AND WERE ATTENDED ONLY BY PETITIONER, HIS
SUPERINTENDENT AND THE ASSISTANT SOLICITOR OF THE BOARD. 

ON NOVEMBER 25, 1953, THE BOARD INSTITUTED DISMISSAL PROCEEDINGS
AGAINST PETITIONER UNDER SEC. 1127 OF THE PENNSYLVANIA PUBLIC SCHOOL
CODE OF 1949.  (FN2)  THE ONLY SPECIFICATION WHICH WE NEED CONSIDER
(FN3) CHARGED THAT PETITIONER'S REFUSAL TO ANSWER HIS SUPERINTENDENT'S
QUESTIONS CONSTITUTED "INCOMPETENCY" UNDER SEC. 1122 OF THAT CODE. 
(FN4)  THE BOARD CONDUCTED A FORMAL HEARING ON THE CHARGE.  PETITIONER
WAS PRESENT WITH COUNSEL BUT DID NOT TESTIFY.  COUNSEL FOR EACH SIDE
AGREED THAT PETITIONER'S LOYALTY WAS NOT IN ISSUE, AND THAT EVIDENCE AS
TO HIS DISLOYALTY WOULD BE IRRELEVANT.  (FN5)  ON JANUARY 7, 1954, THE
BOARD FOUND THAT THE CHARGE OF INCOMPETENCY HAD BEEN SUSTAINED AND, BY
A VOTE OF FOURTEEN TO ONE, DISCHARGED PETITIONER FROM HIS EMPLOYMENT AS
A TEACHER. 

ON AN ADMINISTRATIVE APPEAL, THE SUPERINTENDENT OF PUBLIC INSTRUCTION
OF PENNSYLVANIA SUSTAINED THE LOCAL BOARD.  HOWEVER, ON PETITIONER'S
APPEAL TO THE COUNTY COURT OF COMMON PLEAS, THAT COURT SET ASIDE
PETITIONER'S DISCHARGE AND HELD THAT THE BOARD SHOULD HAVE FOLLOWED THE
PROCEDURE SPECIFIED BY THE PENNSYLVANIA LOYALTY ACT, RATHER THAN THE
PUBLIC SCHOOL CODE.  FINALLY, ON THE BOARD'S APPEAL, THE SUPREME COURT
OF PENNSYLVANIA, WITH TWO JUSTICES DISSENTING, REVERSED THE COURT OF
COMMON PLEAS AND REINSTATED PETITIONER'S DISCHARGE.  386 PA. 82, 98,
110, 125 A.2D 327, 334, 340.   WE GRANTED CERTIORARI.  353 U.S. 964. 

IN ADDITION TO THE PUBLIC SCHOOL CODE, PENNSYLVANIA HAS A
COMPREHENSIVE LOYALTY ACT WHICH PROVIDES FOR THE DISCHARGE OF PUBLIC
EMPLOYEES ON GROUNDS OF DISLOYALTY OR SUBVERSIVE CONDUCT.  PURDON'A PA.
STAT. ANN., 1941 (CUMM.  ANN.  POCKET PT., 1957), TIT. 65, SECS. 211
225.  PETITIONER STRESSES THE FACT THAT THE QUESTION ASKED OF HIM BY
HIS SUPERINTENDENT RELATED TO HIS LOYALTY.  HE CONTENDS THAT HE WAS
DISCHARGED FOR SUSPECTED DISLOYALTY AND THAT HIS DISCHARGE IS INVALID
BECAUSE OF FAILURE TO FOLLOW THE LOYALTY ACT PROCEDURE.  HOWEVER, THE
PENNSYLVANIA SUPREME COURT HELD THAT THE BOARD WAS NOT LIMITED TO
PROCEEDING UNDER THE LOYALTY ACT, EVEN THOUGH THE QUESTIONS ASKED OF
PETITIONER RELATED TO HIS LOYALTY.  WE ARE BOUND BY THE INTERPRETATION
THUS GIVEN TO THE PENNSYLVANIA STATUTES BY THE SUPREME COURT OF
PENNSYLVANIA.  BARSKY V. BOARD OF REGENTS, 347 U.S. 442, 448; CHICAGO,
M., ST. P.&P.R. CO. V. RISTY, 276 U.S. 567, 570.  THE ONLY QUESTION
BEFORE US IS WHETHER THE FEDERAL CONSTITUTION PROHIBITS PETITIONER'S
DISCHARGE FOR STATUTORY "INCOMPETENCY" BASED ON HIS REFUSAL TO ANSWER
THE SUPERINTENDENT'S QUESTIONS.  (FN6) 

BY ENGAGING IN TEACHING IN THE PUBLIC SCHOOLS, PETITIONER DID NOT
GIVE UP HIS RIGHT TO FREEDOM OF BELIEF, SPEECH OR ASSOCIATION.  HE DID,
HOWEVER, UNDERTAKE OBLIGATIONS OF FRANKNESS, CANDOR AND COOPERATION IN
ANSWERING INQUIRIES MADE OF HIM BY HIS EMPLOYING BOARD EXAMINING INTO
HIS FITNESS TO SERVE IT AS A PUBLIC SCHOOL TEACHER. 

"A TEACHER WORKS IN A SENSITIVE AREA IN A SCHOOLROOM.  THERE HE
SHAPES THE ATTITUDE OF YOUNG MINDS TOWARDS THE SOCIETY IN WHICH THEY
LIVE.  IN THIS, THE STATE HAS A VITAL CONCERN.  IT MUST PRESERVE THE
INTEGRITY OF THE SCHOOLS.  THAT THE SCHOOL AUTHORITIES HAVE THE RIGHT
AND THE DUTY TO SCREEN THE OFFICIALS, TEACHERS, AND EMPLOYEES AS TO
THEIR FITNESS TO MAINTAIN THE INTEGRITY OF THE SCHOOLS AS A PART OF
ORDERED SOCIETY, CANNOT BE DOUBTED."  ADLER V. BOARD OF EDUCATION, 342
U.S. 485, 493. 

AS THIS COURT STATED IN GARNER V. BOARD OF PUBLIC WORKS, 341 U.S.
716, 720, "WE THINK THAT A MUNICIPAL EMPLOYER IS NOT DISABLED BECAUSE
IT IS AN AGENCY OF THE STATE FROM INQUIRING OF ITS EMPLOYEES AS TO
MATTERS THAT MAY PROVE RELEVANT TO THEIR FITNESS AND SUITABILITY FOR
THE PUBLIC SERVICE." 

THE QUESTION ASKED OF PETITIONER BY HIS SUPERINTENDENT WAS RELEVANT
TO THE ISSUE OF PETITIONER'S FITNESS AND SUITABILITY TO SERVE AS A
TEACHER.  PETITIONER IS NOT IN A POSITION TO CHALLENGE HIS DISMISSAL
MERELY BECAUSE OF THE REMOTENESS IN TIME OF THE 1944 ACTIVITIES.  IT
WAS APPARENT FROM THE CIRCUMSTANCES OF THE TWO INTERVIEWS THAT THE
SUPERINTENDENT HAD OTHER QUESTIONS TO ASK.  PETITIONER'S REFUSAL TO
ANSWER WAS NOT BASED ON THE REMOTENESS OF HIS 1944 ACTIVITIES.  HE MADE
IT CLEAR THAT HE WOULD NOT ANSWER ANY QUESTION OF THE SAME TYPE AS THE
ONE ASKED.  PETITIONER BLOCKED FROM THE BEGINNING ANY INQUIRY INTO HIS
COMMUNIST ACTIVITIES, HOWEVER RELEVANT TO HIS PRESENT LOYALTY.  THE
BOARD BASED ITS DISMISSAL UPON PETITIONER'S REFUSAL TO ANSWER ANY
INQUIRY ABOUT HIS RELEVANT ACTIVITIES - NOT UPON THOSE ACTIVITIES
THEMSELVES.  IT TOOK CARE TO CHARGE PETITIONER WITH INCOMPETENCY, AND
NOT WITH DISLOYALTY.  IT FOUND HIM INSUBORDINATE AND LACKING IN
FRANKNESS AND CANDOR - IT MADE NO FINDING AS TO HIS LOYALTY. 

WE FIND NO REQUIREMENT IN THE FEDERAL CONSTITUTION THAT A TEACHER'S
CLASSROOM CONDUCT BE THE SOLE BASIS FOR DETERMINING HIS FITNESS. 
FITNESS FOR TEACHING DEPENDS ON A BROAD RANGE OF FACTORS.  THE
PENNSYLVANIA TENURE PROVISION (FN7) SPECIFIES SEVERAL DISQUALIFYING
GROUNDS, INCLUDING IMMORALITY, INTEMPERANCE, CRUELTY, MENTAL
DERANGEMENT AND PERSISTENT AND WILLFUL VIOLATION OF THE SCHOOL LAWS, AS
WELL AS "INCOMPETENCY."  HOWEVER, THE PENNSYLVANIA STATUTE, UNLIKE
THOSE OF MANY OTHER STATES, CONTAINS NO CATCH-ALL PHRASE, SUCH AS
"CONDUCT UNBECOMING A TEACHER," (FN8) TO COVER DISQUALIFYING CONDUCT
NOT INCLUDED WITHIN THE MORE SPECIFIC PROVISIONS.  CONSEQUENTLY, THE
PENNSYLVANIA COURTS HAVE GIVEN "INCOMPETENCY" A BROAD INTERPRETATION. 
THIS WAS MADE CLEAR IN HOROSKO V. MT. PLEASANT SCHOOL DISTRICT, 335 PA.
369, 371, 374-375, 6 A.2D 866, 868, 869-870: 

"IF THE FACT BE THAT SHE 'NOW COMMANDS NEITHER THE RESPECT NOR THE
GOOD WILL OF THE COMMUNITY' AND IF THE RECORD SHOWS THAT EFFECT TO BE
THE RESULT OF HER CONDUCT WITHIN THE CLAUSE QUOTED, IT WILL BE
CONCLUSIVE EVIDENCE OF INCOMPETENCY.  IT HAS ALWAYS BEEN THE RECOGNIZED
DUTY OF THE TEACHER TO CONDUCT HIMSELF IN SUCH WAY AS TO COMMAND THE
RESPECT AND GOOD WILL OF THE COMMUNITY, THOUGH ONE RESULT OF THE CHOICE
OF A TEACHER'S VOCATION MAY BE TO DEPRIVE HIM OF THE SAME FREEDOM OF
ACTION ENJOYED BY PERSONS IN OTHER VOCATIONS.  EDUCATORS HAVE ALWAYS
REGARDED THE EXAMPLE SET BY THE TEACHER AS OF GREAT IMPORTANCE  ...  . 

     *         *         *         *         * 

"THE TERM 'INCOMPETENCY' HAS A 'COMMON AND APPROVED USAGE'.  THE
CONTEXT DOES NOT LIMIT THE MEANING OF THE WORD TO LACK OF SUBSTANTIVE
KNOWLEDGE OF THE SUBJECT TO BE TAUGHT.  COMMON AND APPROVED USAGE GIVE
A MUCH WIDER MEANING.  FOR EXAMPLE, IN 31 C.J., WITH REFERENCE TO A
NUMBER OF SUPPORTING DECISIONS, IT IS DEFINED:  'A RELATIVE TERM
WITHOUT TECHNICAL MEANING.  IT MAY BE EMPLOYED AS MEANING
DISQUALIFICATION; INABILITY; INCAPACITY; LACK OF ABILITY, LEGAL
QUALIFICATIONS, OR FITNESS TO DISCHARGE THE REQUIRED DUTY.'  IN BLACK'S
LAW DICTIONARY (3RD EDITION) PAGE 945, AND IN BOUVIER'S LAW DICTIONARY,
(3RD REVISION) P. 1528, IT IS DEFINED AS 'LACK OF ABILITY OR FITNESS TO
DISCHARGE THE REQUIRED DUTY.'  CASES CONSTRUING THE WORD TO THE SAME
EFFECT ARE FOUND IN WORDS AND PHRASES, 1ST SERIES, PAGE 3510, AND 2ND
SERIES, PAGE 1013.  WEBSTER'S NEW INTERNATIONAL DICTIONARY DEFINES IT
AS 'WANT OF PHYSICAL, INTELLECTUAL, OR MORAL ABILITY; INSUFFICIENCY,
INADEQUACY; SPECIF., WANT OF LEGAL QUALIFICATIONS OR FITNESS.'  FUNK &
WAGNALLS STANDARD DICTIONARY DEFINES IT AS 'GENERAL LACK OF CAPACITY OF
FITNESS, OR LACK OF THE SPECIAL QUALITIES REQUIRED FOR A PARTICULAR
PURPOSE.'" 

IN THE HOROSKO CASE, A TEACHER WAS DISCHARGED FOR "INCOMPETENCY"
BECAUSE OF HER AFTERHOURS ACTIVITY IN HER HUSBAND'S BEER GARDEN,
SERVING AS A BARTENDER AND WAITRESS, OCCASIONALLY DRINKING BEER,
SHAKING DICE WITH THE CUSTOMERS FOR DRINKS AND PLAYING THE PINBALL
MACHINE.  CF. SCHWER'S APPEAL, 36 PA. D.&C. 531, 536. 

IN THE INSTANT CASE, THE PENNSYLVANIA SUPREME COURT HAS HELD THAT
"INCOMPETENCY" INCLUDES PETITIONER'S "DELIBERATE AND INSUBORDINATE
REFUSAL TO ANSWER THE QUESTIONS OF HIS ADMINISTRATIVE SUPERIOR IN A
VITALLY IMPORTANT MATTER PERTAINING TO HIS FITNESS."  386 PA., AT 91,
125 A.2D, AT 331.  THE INTERPRETATION IS NOT INCONSISTENT WITH THE
FEDERAL CONSTITUTION. 

PETITIONER COMPLAINS THAT HE WAS DENIED DUE PROCESS BECAUSE HE WAS
NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF HIS REFUSAL TO ANSWER
HIS SUPERINTENDENT.  THE RECORD, HOWEVER, SHOWS THAT THE
SUPERINTENDENT, IN HIS SECOND INTERVIEW, SPECIFICALLY WARNED PETITIONER
THAT HIS REFUSAL TO ANSWER "WAS A VERY SERIOUS AND A VERY IMPORTANT
MATTER AND THAT FAILURE TO ANSWER THE QUESTIONS MIGHT LEAD TO HIS
DISMISSAL."  THAT WAS SUFFICIENT WARNING TO PETITIONER THAT HIS REFUSAL
TO ANSWER MIGHT JEOPARDIZE HIS EMPLOYMENT.  FURTHERMORE, AT
PETITIONER'S REQUEST, HIS SUPERINTENDENT GAVE HIM AMPLE OPPORTUNITY TO
CONSULT COUNSEL.  THERE WAS NO ELEMENT OF SUPRISE. 

OUR RECENT DECISIONS IN SLOCHOWER V. BOARD OF EDUCATION, 350 U.S.
551, AND KONIGSBERG V. STATE BAR OF CALIFORNIA, 353 U.S. 252, ARE
DISTINGUISHABLE.  IN EACH WE ENVISIONED AND DISTINGUISHED THE SITUATION
NOW BEFORE US.  IN THE SLOCHOWER CASE, AT 558, THE COURT SAID: 

"IT IS ONE THING FOR THE CITY AUTHORITIES THEMSELVES TO INQUIRE INTO
SLOCHOWER'S FITNESS, BUT QUITE ANOTHER FOR HIS DISCHARGE TO BE BASED
ENTIRELY ON EVENTS OCCURRING BEFORE A FEDERAL COMMITTEE WHOSE INQUIRY
WAS ANNOUNCED AS NOT DIRECTED AT 'THE PROPERTY, AFFAIRS, OR GOVERNMENT
OF THE CITY, OR  ...  OFFICIAL CONDUCT OF CITY EMPLOYEES.'  IN THIS
RESPECT THE PRESENT CASE DIFFERS MATERIALLY FROM GARNER 341 U.S. 716,
WHERE THE CITY WAS ATTEMPTING TO ELICIT INFORMATION NECESSARY TO
DETERMINE THE QUALIFICATIONS OF ITS EMPLOYEES.  HERE, THE BOARD HAD
POSSESSED THE PERTINENT INFORMATION FOR 12 YEARS, AND THE QUESTIONS
WHICH PROFESSOR SLOCHOWER REFUSED TO ANSWER WERE ADMITTEDLY ASKED FOR A
PURPOSE WHOLLY UNRELATED TO HIS COLLEGE FUNCTIONS.  ON SUCH A RECORD
THE BOARD CANNOT CLAIM THAT ITS ACTION WAS PART OF A BONA FIDE ATTEMPT
TO GAIN NEEDED AND RELEVANT INFORMATION." 

IN THE KONIGSBERG CASE, SUPRA, AT 259-261, THIS COURT STRESSED THE
FACT THAT THE ACTION OF THE STATE WAS NOT BASED ON THE MERE REFUSAL TO
ANSWER RELEVANT QUESTIONS - RATHER, IT WAS BASED ON INFERENCES
IMPERMISSIBLY DRAWN FROM THE REFUSAL.  IN THE INSTANT CASE, NO
INFERENCES AT ALL WERE DRAWN FROM PETITIONER'S REFUSAL TO ANSWER.  THE
PENNSYLVANIA SUPREME COURT MERELY EQUATED REFUSAL TO ANSWER THE
EMPLOYING BOARD'S RELEVANT QUESTIONS WITH STATUTORY "INCOMPETENCY." 

INASMUCH AS PETITIONER'S DISMISSAL DID NOT VIOLATE THE FEDERAL
CONSTITUTION, THE JUDGMENT OF THE SUPERME COURT OF PENNSYLVANIA IS
AFFIRMED.    FN1  THE COMMUNIST POLITICAL ASSOCIATION WAS THE
PREDECESSOR ORGANIZATION OF THE COMMUNIST PARTY OF THE UNITED STATES. 
SEE YATES V. UNITED STATES, 354 U.S. 298, 304, N. 5. 

FN2  PA. LAWS 1949, NO. 14, PURDON'S PA. STAT. ANN., 1950, TIT. 24,
SEC. 11-1127. 

FN3  PETITIONER'S REFUSAL TO ANSWER HIS SUPERINTENDENT WAS ALSO
CHARGED AS PERSISTENT AND WILLFUL VIOLATION OF THE SCHOOL LAWS, ANOTHER
STATUTORY GROUND FOR DISMISSAL.  SEE NOTE 4, INFRA. 

ON NOVEMBER 18, 1953, PETITIONER HAD BEEN CALLED TO TESTIFY AS A
WITNESS IN A PHILADELPHIA HEARING OF A SUBCOMMITTEE OF THE UNITED
STATES HOUSE COMMITTEE ON THE UN-AMERICAN ACTIVITIES.  THERE HE WAS
ASKED TO CONFIRM OR REFUTE SEVERAL REPORTS AS TO HIS ALLEGED SUBVERSIVE
ACTIVITIES IN 1949 AND EARLIER YEARS.  HE DECLINED TO ANSWER, RELYING
UPON THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION.   THAT INVOCATION
OF THE FIFTH AMENDMENT WAS SPECIFIED BY THE BOARD AS A FURTHER GROUND
OF "INCOMPETENCY."  ALL CHARGES WERE SUSTAINED ON THE ADMINISTRATIVE
LEVEL. 

THE PENNSYLVANIA SUPREME COURT FOUND THAT PETITIONER'S REFUSAL TO
ANSWER HIS SUPERINTENDENT EVIDENCED A STATUTORY "INCOMPETENCY"
SUFFICIENT TO SUPPORT HIS DISMISSAL AND, THEREFORE, FOUND IT
UNNECESSARY TO PASS ON THE OTHER GOUNDS FOR DISMISSAL.  386 PA. 82, 94,
125 A.2D 327, 333.  IT IS SUGGESTED THAT PETITIONER HAS A RIGHT TO THE
INTITIAL JUDGMENT OF THE ADMINISTRATIVE AUTHORITIES ON WHETHER REFUSAL
TO ANSWER THE SUPERINTENDENT, INDEPENDENT OF OTHER CHARGES, WOULD
SUPPORT THE DISMISSAL.  UNDER THE PENNSYLVANIA PUBLIC SCHOOL CODE,
COMMON PLEAS COURTS EXERCISE DE NOVO REVIEW OF DISMISSALS.  PURDON'S
PA. STAT. ANN., 1950 (CUM. ANN. POCKET PT., 1957), TIT. 24, SEC. 11
1132(B).  A DISMISSAL CAN BE SUSTAINED IF THE COURT FINDS SUPPORT FOR
ANY ONE OF THE MULTIPLE GROUNDS RELIED UPON BY THE DISMISSING SCHOOL
BOARD.  CF. BROWN CASE, 347 PA. 418, AFFIRMING 151 PA. SUPER.  522, 30
A.2D 726, REPORTED SUB NOM. APPEAL OF SCHOOL DISTRICT OF CITY OF
BETHLEHEM, 32 A.2D 565.  THIS ALLOCATION OF FUNCTIONS BETWEEN THE
PENNSYLVANIA COURTS AND ADMINISTRATIVE AGENCIES DOES NOT VIOLATE DUE
PROCESS.  ACCORDINGLY, IT IS NECESSARY FOR US TO CONSIDER ONLY THE ONE
GROUND RELIED UPON BY THE PENNSYLVANIA SUPREME COURT.  AS A MATTER OF
JURISDICTION, OUR ONLY JURISDICTION IS OVER THE PENNSYLVANIA SUPREME
COURT, AS THE HIGHEST COURT OF THE STATE. 

FN4  SECTION 1122 OF THAT CODE, IN 1952 AND 1953, PROVIDED THAT "THE
ONLY VALID CAUSES FOR TERMINATION OF A CONTRACT HERETOFORE OR HEREAFTER
ENTERED INTO WITH A PROFESSIONAL EMPLOYE SHALL BE IMMORALITY,
INCOMPETENCY, INTEMPERANCE, CRUELTY, PERSISTENT NEGLIGENCE, MENTAL
DERANGEMENT, PERSISTENT AND WILFUL VIOLATION OF THE SCHOOL LAWS OF THIS
COMMONWEALTH ON THE PART OF THE PROFESSIONAL EMPLOYE."  PA. LAWS 1949,
NO. 14, AS AMENDED, PA. LAWS 1951, NO. 463, SEC. 16; PURDON'S PA. STAT.
ANN., 1950 (CUM. ANN. POCKET PT., 1957), TIT.  24, SEC. 11-1122. 

AS ENACTED IN 1949, SEC. 1122 HAD CONTAINED, AFTER THE WORDS "MENTAL
DERANGEMENT," THE CLAUSE, "ADVOCATION OF OR PARTICIPATING IN UN
AMERICAN OR SUBVERSIVE DOCTRINES."  PA.  LAWS 1949, NO. 14.  THAT
CLAUSE, HOWEVER, WAS DELETED BY SEC. 16 OF THE PENNSYLVANIA LOYALTY
ACT, APPROVED DECEMBER 22, 1951, EFFECTIVE MARCH 1, 1952.  PA. LAWS
1951, NO. 463. 

FN5  COUNSEL FOR THE BOARD, AT THE OUTSET OF THE HEARING, STATED: 

"IT IS MY CONTENTION, AND IT HAS BEEN THE THOUGHT OF YOUR COUNSEL
SINCE THESE PROCEEDINGS WERE INITIATED, THAT THESE ARE NOT PROCEEDINGS
BROUGHT AGAINST THESE RESPONDENTS CHARGING THEM WITH DISLOYALTY.  IF
THAT WERE THE SITUATION WE WOULD HAVE A COMPLETELY DIFFERENT RECORD, A
COMPLETELY DIFFERENT SET OF FACTS, A COMPLETELY DIFFERENT SECTION UNDER
WHICH THE CHARGES WOULD BE MADE, IF MADE AT ALL. 

     *         *         *         *        * 

"NOW, SO FAR AS I AM CONCERNED, SIR, AND SO FAR AS MY PRESENTATION OF
TESTIMONY IS CONCERNED, I DON'T THINK WHETHER THIS MAN IS LOYAL OR
DISLOYAL HAS ANYTHING TO DO WITH THIS CASE.  AND IF YOUR COUNSEL'S
ADVICE WERE BEING ASKED IN THE MATTER, I SHOULD SAY THAT ANY TESTIMONY
DIRECTED TOWARD PRESENT LOYALTY OR DISLOYALTY IS COMPLETELY OUT OF THIS
CASE. 

     *         *         *         *         * 

"SO FAR AS THIS CASE IS CONCERNED, WE ARE NOT DELVING INTO PRESENT OR
PAST LOYALTY." 

COUNSEL FOR PETITIONER STATED:  "MR. PRESIDENT, IF YOU PLEASE, I HAVE
NO INTENTION OF SEEING THIS PROCEEDING BECOME A LOYALTY HEARING.  MR.
RHOADS (COUNSEL FOR THE BOARD) HAS STATED THAT IT IS NOT.  I AGREE WITH
HIM COMPLETELY." 

FN6  THERE IS NO SHOWING THAT THE STATUTE WAS DISCRIMINATORILY
APPLIED.  CF. YICK WO V. HOPKINS, 118 U.S. 356; LANE V. WILSON, 307
U.S. 268. 

FN7  SEE NOTE 4, SUPRA. 

FN8  E.G., BALDWIN'S KY. REV. STAT. ANN., 1955, SEC. 161.790(1),
"CONDUCT UNBECOMING A TEACHER," "DURING GOOD BEHAVIOR." 

MASS. ANN. LAWS, 1953 (CUM. SUPP., 1957), C. 71, SEC. 42, "CONDUCT
UNBECOMING A TEACHER," "OR OTHER GOOD CAUSE." 

WEST'S ANN. CAL. CODE, EDUCATION, SEC. 13521(A), (E), "UNPROFESSIONAL
CONDUCT," "EVIDENT UNFITNESS FOR SERVICE." 

SMITH-HURD'S ILL. ANN. STAT., 1946 (CUM. ANN. POCKET PT., 1957), C.
122, SEC. 6-36, "OTHER SUFFICIENT CAUSE." 

BURNS' ANN. IND. STAT., 1948 REPLACEMENT VOL, SEC. 28-4308, "OTHER
GOOD AND JUST CAUSE." 

MR. JUSTICE FRANKFURTER, CONCURRING.* 

*NOTE:  THIS OPINION APPLIED ALSO TO NO. 165, LERNER V. CASEY, POST,
P. 468. 

ALTHOUGH I JOIN THE OPINION OF THE COURT IN BOTH THESE CASES, A WORD
OF EMPHASIS IS APPROPRIATE AGAINST FINDING THAT NEW YORK AND
PENNSYLVANIA - FOR THE HIGHEST COURTS OF THOSE STATES ARE FOR OUR
PURPOSES THE STATES - HAVE VIOLATED THE UNITED STATES CONSTITUTION BY
ATTRIBUTING TO THEM DETERMINATIONS THAT THEY HAVE NOT MADE AND HAVE
CAREFULLY AVOIDED MAKING.  SUCH A FINDING WOULD REST, AS I UNDERSTAND
IT, ON THE THEORY THAT ALTHOUGH THE STATES, WITH A DUE SENSE OF
RESPONSIBILITY, HAVE NOT MADE THESE DETERMINATIONS, THEY MAY BE
ATTRIBUTED TO THEM BECAUSE PERSONS WHO DO NOT MAKE DISTINCTIONS THAT
ARE IMPORTANT IN LAW AND THE CONDUCT OF GOVERNMENT MAY LOOSELY INFER
THEM. 

THE SERVICES OF TWO PUBLIC EMPLOYEES HAVE BEEN TERMINATED BECAUSE OF
THEIR REFUSALS TO ANSWER QUESTIONS RELEVANT, OR NOT OBVIOUSLY
IRRELEVANT, TO AN INQUIRY BY THEIR SUPERVISORS INTO THEIR
DEPENDABILITY.  WHEN THESE TWO EMPLOYEES WERE DISCHARGED, THEY WERE NOT
LABELED "DISLOYAL."  THEY WERE DISCHARGED BECAUSE GOVERNMENTAL
AUTHORITIES, LIKE OTHER EMPLOYERS, SOUGHT TO SATISFY THEMSELVES OF THE
DEPENDABILITY OF EMPLOYEES IN RELATION TO THEIR DUTIES.  ACCORDINGLY,
THEY MADE INQUIRIES THAT, IT IS NOT CONTRIDICTED, COULD IN AND OF
THEMSELVES BE MADE.  THESE INQUIRIES WERE BALKED.  THE SERVICES OF THE
EMPLOYEES WERE THEREFORE TERMINATED. 

BECAUSE THE SPECIFIC QUESTIONS PUT TO THESE EMPLOYEES WERE PART OF A
GENERAL INQUIRY RELATING TO WHAT IS COMPENDIOUSLY CALLED SUBVERSION AND
TO CONDUCT THAT ON DUE PROOF MAY AMOUNT TO DISLOYALTY, EVERY PART OF
THE PROCESS OF INQUIRY IS GIVEN THE ATTRIBUTE OF AN INQUIRY INTO
DISLOYALTY AND EVERY RESULTING SEVERANCE FROM SERVICE IS DEEMED A
FINDING OF DISLOYALTY.  THE ARGUMENT RUNS, IN ESSENCE, THAT BECAUSE
SUCH AN INQUIRY MAY IN CERTAIN INSTANCES LEAD TO A DETERMINATION OF
DISLOYALTY, THE REFUSAL TO ANSWER ANY QUESTIONS IN THIS PROCESS AND
DISMISSAL THEREFOR THEMSELVES ESTABLISH DISLOYALTY.  TO MAKE SUCH AN
ATTRIBUTION TO A STATE, TO DRAW SUCH AN INFERENCE FROM A CAREFULLY
LIMITED EXERCISE OF STATE POWER, TO DISALLOW STATE ACTION BECAUSE THERE
ARE THOSE WHO MAY DRAW INFERENCES THAT THE STATE ITSELF HAS NOT DRAWN
AND HAS AVOIDED DRAWING, IS A CURBING OF THE STATES THROUGH THE
FOURTEENTH AMENDMENT THAT MAKES OF THAT AMENDMENT AN INSTRUMENT OF
GENERAL CENSORSHIP BY THIS COURT OF STATE ACTION.  IN REFUSING TO PUT
THE FOURTEENTH AMENDMENT TO SUCH A USE, I AM OF COURSE WHOLLY
UNCONCERNED WITH WHAT I MAY THINK OF THE WISDOM OR FOLLY OF THE STATE
AUTHORITIES.  I AM NOT CHARGED WITH ADMINISTERING THE TRANSPORTATION
SYSTEM OF NEW YORK OR THE SCHOOL SYSTEM OF PENNSYLVANIA.  THE
FOURTEENTH AMENDMENT DOES NOT CHECK FOOLISHNESS OR UNWISDOM IN SUCH
ADMINISTRATION.  THE GOOD SENSE AND RIGHT STANDARDS OF PUBLIC
ADMINISTRATION IN THOSE STATES MUST BE RELIED UPON FOR THAT, AND
ULTIMATELY THE ELECTORATE. 

MR. CHIEF JUSTICE WARREN, DISSENTING.* 

*NOTE:  THIS OPINION APPLIES ALSO TO NO. 165, LERNER V. CASEY, POST,
P. 468. 

I BELIEVE THE FACTS OF RECORD IN NO. 63 COMPEL THE CONCLUSION THAT
BEILAN'S PLEA OF THE FIFTH AMENDMENT BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON THE UN-AMERICAN ACTIVITIES WAS SO INEXTRICABLY INVOLVED IN
THE BOARD'S DECISION TO DISCHARGE HIM THAT THE VALIDITY OF THE BOARD'S
ACTION CANNOT BE SUSTAINED WITHOUT CONSIDERATION OF THIS GROUND.  THE
CLEAREST INDICATION OF THIS IS THE FACT THAT FOR 13 MONTHS FOLLOWING
PETITIONER'S REFUSAL TO ANSWER THE SUPERINTENDENT'S QUESTIONS, HE WAS
RETAINED AS A SCHOOL TEACHER AND CONTINUALLY RATED "SATISFACTORY," YET
FIVE DAYS AFTER HIS APPEARANCE BEFORE THE HOUSE SUBCOMMITTEE PETITIONER
WAS SUSPENDED.  SINCE A PLEA OF THE FIFTH AMENDMENT BEFORE A
CONGRESSIONAL COMMITTEE IS AN INVALID BASIS FOR DISCHARGE FROM PUBLIC
EMPLOYMENT, SLOCHOWER V. BOARD OF HIGHER EDUCATION, 350 U.S. 551, I
WOULD REVERSE THE JUDGMENT APPROVING PETITIONER'S DISMISSAL. 

I CANNOT AGREE THAT THE INVALIDITY OF THE BOARD'S ACTION IS CURED BY
THE PENNSYLVANIA SUPREME COURT'S CONCLUSION THAT THE DISMISSAL WAS
"JUSTIFIED" IF ANY CHARGE AGAINST PETITIONER WAS SUSTAINED.  WHETHER
THE FIRST REFUSAL ALONE WOULD "JUSTIFY" THE DISCHARGE WE NEED NOT
DECIDE.  THIS COURT HAS PREVIOUSLY HELD THAT WHERE A CONCLUSION OF
GUILT MAY REST ON A CONSTITUTIONALLY IMPERMISSIBLE BASIS, THE
ADJUDICATION MUST BE SET ASIDE, NOTWITHSTANDING A STATE COURT'S
CONCLUSION THAT PERMISSIBLE BASES EXISTED ON WHICH THE DECISION MIGHT
HAVE RESTED.  STROMBERG V. CALIFORNIA, 283 U.S. 359, 368; SEE ALSO
WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 292.  THERE MAY BE EXCEPTIONS
TO THE APPLICATION OF THIS PRINCIPLE TO THE FULL RANGE OF STATE
ADMINISTRATIVE ACTION.  NEVERTHELESS, ON THE PARTICULAR FACTS OF THIS
CASE, THE INVALID BASIS OF THE STATE'S ACTION IS TOO CRITICAL TO BE
IGNORED. 

FOR THESE REASONS MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND I
DISSENT IN NO. 63.  I ALSO DISSENT IN NO. 165 FOR THE REASONS STATED IN
THE DISSENTING OPINION OF MR. JUSTICE BRENNAN. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING.* 

*NOTE:  THIS OPINION APPLIES ALSO TO NO. 165, LERNER V. CASEY, POST,
P. 468. 

THE HOLDING OF THE COURT THAT THE TEACHER IN THE BEILAN CASE AND THE
SUBWAY CONDUCTOR IN THE LERNER CASE COULD BE DISCHARGED FROM THEIR
RESPECTIVE JOBS BECAUSE THEY STOOD SILENT WHEN ASKED ABOUT THEIR
COMMUNIST AFFILIATIONS CANNOT, WITH DUE DEFERENCE, BE SQUARED WITH OUR
CONSTITUTIONAL PRINCIPLES. 

AMONG THE LIBERTIES OF THE CITIZENS THAT ARE GUARANTEED BY THE
FOURTEENTH AMENDMENT ARE THOSE CONTAINED IN THE FIRST AMENDMENT. 
STROMBERG V. CALIFORNIA, 283 U.S. 359; DE JONGE V. OREGON, 299 U.S.
353; MURDOCK V. PENNSYLVANIA, 319 U.S. 105; EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1; STAUB V. CITY OF BAXLEY, 355 U.S. 313, 321. 
THESE INCLUDE THE RIGHT TO BELIEVE WHAT ONE CHOOSES, THE RIGHT TO
DIFFER FROM HIS NEIGHBOR, THE RIGHT TO PICK AND CHOOSE THE POLITICAL
PHILOSOPHY THAT HE LIKES BEST, THE RIGHT TO ASSOCIATE WITH WHOMEVER HE
CHOOSES, THE RIGHT TO JOIN THE GROUPS HE PREFERS, THE PRIVILEGE OF
SELECTING HIS OWN PATH TO SALVATION.  THE COURT PUT THE MATTER
SUCCINCTLY IN BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 641-642: 

"WE CAN HAVE INTELLECTUAL INDIVIDUALISM AND THE RICH CULTURAL
DIVERSITIES THAT WE OWE TO EXCEPTIONAL MINDS ONLY AT THE PRICE OF
OCCASIONAL ECCENTRICITY AND ABNORMAL ATTITUDES.  WHEN THEY ARE SO
HARMLESS TO OTHERS OR TO THE STATE AS THOSE WE DEAL WITH HERE, THE
PRICE IS NOT TOO GREAT.  BUT FREEDOM TO DIFFER IS NOT LIMITED TO THINGS
THAT DO NOT MATTER MUCH.  THAT WOULD BE A MERE SHADOW OF FREEDOM.  THE
TEST OF ITS SUBSTANCE IS THE RIGHT TO DIFFER AS TO THINGS THAT TOUCH
THE HEART OF THE EXISTING ORDER. 

"IF THERE IS ANY FIXED STAR IN OUR CONSTITUTIONAL CONSTELLATION, IT
IS THAT NO OFFICIAL, HIGH OR PETTY, CAN PRESCRIBE WHAT SHALL BE
ORTHODOX IN POLITICS, NATIONALISM, RELIGION, OR OTHER MATTERS OF
OPINION OR FORCE CITIZENS TO CONFESS BY WORD OR ACT THEIR FAITH
THEREIN." 

WE DEAL HERE ONLY WITH A MATTER OF BELIEF.  WE HAVE NO EVIDENCE IN
EITHER CASE THAT THE EMPLOYEE IN QUESTION EVER COMMITTED A CRIME, EVER
MOVED IN TREASONABLE OPPOSITION AGAINST THIS COUNTRY.  THE ONLY MARK
AGAINST THEM - IF IT CAN BE CALLED SUCH - IS A REFUSAL TO ANSWER
QUESTIONS CONCERNING COMMUNIST PARTY MEMBERSHIP.  THIS IS SAID TO GIVE
RISE TO DOUBTS CONCERNING THE COMPETENCE OF THE TEACHER IN THE BEILAN
CASE AND DOUBTS AS TO THE TRUSTWORTHINESS AND RELIABILITY OF THE SUBWAY
CONDUCTOR IN THE LERNER CASE. 

OUR LEGAL SYSTEM IS PREMISED ON THE THEORY THAT EVERY PERSON IS
INNOCENT UNTIL HE IS PROVED GUILTY.  IN THIS COUNTRY WE HAVE, HOWEVER,
BEEN MOVING AWAY FROM THAT CONCEPT.  WE HAVE BEEN GENERATING THE BELIEF
THAT ANYONE WHO REMAINS SILENT WHEN INTERROGATED ABOUT HIS UNPOPULAR
BELIEFS OR AFFILIATIONS IS GUILTY.  I WOULD ALLOW NO INFERENCE OF
WRONGDOING TO FLOW FROM THE INVOCATION OF ANY CONSTITUTIONAL RIGHT.  I
WOULD NOT LET THAT PRINCIPLE BOW TO POPULAR PASSIONS.  FOR ALL WE KNOW
WE ARE DEALING HERE WITH CITIZENS WHO ARE WHOLLY INNOCENT OF ANY
WRONGFUL ACTION.  THAT MUST INDEED BE OUR PREMISE.  WHEN WE MAKE THE
CONTRARY ASSUMPTION, WE PART RADICALLY WITH OUR TRADITION. 

IF IT BE SAID THAT WE DEAL NOT WITH GUILT OR INNOCENCE BUT WITH
FRANKNESS, THE ANSWER IS THE SAME.   THERE ARE AREAS WHERE GOVERNMENT
MAY NOT PROBE.  PRIVATE CITIZENS, PRIVATE CLUBS, PRIVATE GROUPS MAY
MAKE SUCH DEDUCTIONS AND REACH SUCH CONCLUSIONS AS THEY CHOOSE FROM THE
FAILURE OF A CITIZEN TO DISCLOSE HIS BELIEFS, HIS PHILOSOPHY, HIS
ASSOCIATES.  BUT GOVERNMENT HAS NO BUSINESS PENALIZING A CITIZEN MERELY
FOR HIS BELIEFS OR ASSOCIATIONS.  IT IS GOVERNMENT ACTION THAT WE HAVE
HERE.  IT IS GOVERNMENT ACTION THAT THE FOURTEENTH AND FIRST AMENDMENTS
PROTECT AGAINST.  WE EMPHASIZED IN N.A.A.C.P. V. ALABAMA, DECIDED THIS
DAY, POST, P. 449, THAT FREEDOM TO ASSOCIATE IS ONE OF THOSE LIBERTIES
PROTECTED AGAINST GOVERNMENTAL ACTION AND THAT FREEDOM FROM "COMPELLED
DISCLOSURE OF AFFILIATION WITH GROUPS ENGAGED IN ADVOCACY" IS VITAL TO
THAT CONSTITUTIONAL RIGHT.  WE GAVE PROTECTION IN THE N.A.A.C.P. CASE
AGAINST GOVERNMENTAL PROBING INTO POLITICAL ACTIVITIES AND ASSOCIATIONS
OF ONE DISSIDENT GROUP OF PEOPLE.  WE SHOULD DO THE SAME HERE.    IF WE
BREAK WITH TRADITION AND LET THE GOVERNMENT PENALIZE THESE CITIZENS FOR
THEIR BELIEFS AND ASSOCIATIONS, THE MOST WE CAN ASSUME FROM THEIR
FAILURE TO ANSWER IS THAT THEY WERE COMMUNISTS.  YET, AS WE SAID IN
WIEMAN V. UPDEGRAFF, 344 U.S. 183, 190, MEMBERSHIP IN THE COMMUNIST
PARTY "MAY BE INNOCENT."  THE MEMBER MAY HAVE THOUGHT THAT THE
COMMUNIST MOVEMENT WOULD DEVELOP IN THE PARLIAMENTARY TRADITION HERE,
OR HE MAY NOT HAVE BEEN AWARE OF ANY UNLAWFUL AIM, OR KNOWING IT, MAY
HAVE EMBRACED ONLY THE SOCIALIST PHILOSPHY OF THE GROUP, NOT ANY
POLITICAL TACTICS OF VIOLENCE AND TERROR.  MANY JOIN ASSOCIATIONS,
SOCIETIES, AND FRATERNITIES WITH LESS THAN FULL ENDORSEMENT OF ALL
THEIR AIMS. 

WE COMPOUND ERROR IN THESE DECISIONS.  WE NOT ONLY IMPUTE WRONGDOING
TO THOSE WHO INVOKE THEIR CONSTITUTIONAL RIGHTS.  WE GO FURTHER AND
IMPUTE THE WORST POSSIBLE MOTIVES TO THEM. 

AS JUDGE FULD SAID IN DISSENT IN THE LERNER CASE, "IT IS A DELUSION
TO THINK THAT THE NATION'S SECURITY IS ADVANCED BY THE SACRIFICE OF THE
INDIVIDUAL'S BASIC LIBERTIES.  THE FEARS AND DOUBTS OF THE MOMENT MAY
LOOM LARGE, BUT WE LOSE MORE THAN WE GAIN IF WE COUNTER WITH A RESORT
TO ALIEN PROCEDURES OR WITH A DENIAL OF ESSENTIAL CONSTITUTIONAL
GUARANTEES."  2 N.Y.2D 355, 378, 141 N.E.2D 533, 546. 

OUR INITIAL ERROR IN ALL THIS BUSINESS (SEE DENNIS V. UNITED STATES,
341 U.S. 494) WAS OUR DISREGARD OF THE BASIC PRINCIPLE THAT GOVERNMENT
CAN CONCERN ITSELF ONLY WITH THE ACTIONS OF MEN, NOT WITH THEIR
OPINIONS OR BELIEFS.  AS THOMAS JEFFERSON SAID IN 1779: 

"  ...  THE OPINIONS OF MEN ARE NOT THE OBJECT OF CIVIL GOVERNMENT,
NOR UNDER ITS JURISDICTION; ...  IT IS TIME ENOUGH FOR THE RIGHTFUL
PURPOSES OF CIVIL GOVERNMENT FOR ITS OFFICERS TO INTERFERE WHEN
PRINCIPLES BREAK OUT INTO OVERT ACTS AGAINST PEACE AND GOOD ORDER." 
(FN1) 

THE FITNESS OF A SUBWAY CONDUCTOR FOR HIS JOB DEPENDS ON HIS HEALTH,
HIS PROMPTNESS, HIS RECORD FOR RELIABILITY, NOT ON HIS POLITICS OR
PHILOSOPHY OF LIFE.  THE FITNESS OF A TEACHER FOR HER JOB TURNS ON HER
DEVOTION TO THAT PRIESTHOOD, HER EDUCATION, AND HER PERFORMANCE IN THE
LIBRARY, IN THE LABORATORY, AND THE CLASSROOM, NOT ON HER POLITICAL
BELIEFS.  ANYONE WHO PLOTS AGAINST THE GOVERNMENT AND MOVES IN
TREASONABLE OPPOSITION TO IT CAN BE PUNISHED.  GOVERNMENT RIGHTLY CAN
CONCERN ITSELF WITH THE ACTIONS OF PEOPLE.  BUT IT'S TIME WE CALLED A
HALT TO GOVERNMENT'S PENALIZING PEOPLE FOR THEIR BELIEFS.  TO REPEAT,
INDIVIDUALS AND PRIVATE GROUPS CAN MAKE ANY JUDGMENTS THEY WANT.  BUT
THE REALM OF BELIEF - AS OPPOSED TO ACTION - IS ONE WHICH THE FIRST
AMENDMENT PLACES BEYOND THE LONG ARM OF GOVERNMENT. 

A TEACHER WHO IS ORGANIZING A COMMUNIST CELL IN A SCHOOLHOUSE OR A
SUBWAY CONDUCTOR WHO IS PREPARING THE TRANSPORTATION SYSTEM FOR
SABOTAGE WOULD PLAINLY BE UNFIT FOR HIS JOB.  BUT WE HAVE NO SUCH
EVIDENCE IN THE RECORDS BEFORE US.  AS MY BROTHER BRENNAN POINTS OUT,
TO JUMP TO THOSE CONCLUSIONS ON THESE RECORDS IS TO SHORT-CUT
PROCEDURAL DUE PROCESS. 

IN SUM, WE HAVE HERE ONLY A BARE REFUSAL TO TESTIFY; AND THE COURT
HOLDS THAT SUFFICIENT TO SHOW THAT THESE EMPLOYEES ARE UNFIT TO HOLD
THEIR PUBLIC POSTS.  THAT MAKES QUALIFICATION FOR PUBLIC OFFICE TURN
SOLELY ON A MATTER OF BELIEF - A NOTION VERY MUCH AT WAR WITH THE BILL
OF RIGHTS. 

WHEN WE MAKE THE BELIEF OF THE CITIZEN THE BASIS OF GOVERNMENT
ACTION, WE MOVE TOWARD THE CONCEPT OF TOTAL SECURITY.  YET TOTAL
SECURITY IS POSSIBLE ONLY IN A TOTALITARIAN REGIME (FN2) - THE KIND OF
SYSTEM WE PROFESS TO COMBAT. 

FN1 2 PAPERS OF THOMAS JEFFERSON (BOYD ED. 1950) 546. 

FN2  IN AN ANALOGOUS SITUATION, JUDGE POPE STATED THE PROBLEM FOR THE
COURT OF APPEALS IN PARKER V. LESTER, 227 F.2D 708, 721: 

"IT CANNOT BE SAID THAT IN VIEW OF THE LARGE PROBLEM OF PROTECTING
THE NATIONAL SECURITY AGAINST SABOTAGE AND OTHER ACTS OF SUBVERSION WE
CAN SACRIFICE AND DISREGARD THE INDIVIDUAL INTEREST OF THESE MERCHANT
SEAMEN BECAUSE THEY ARE COMPARATIVELY FEW IN NUMBER.  IT IS NOT A
SIMPLE CASE OF SACRIFICING THE INTERESTS OF A FEW TO THE WELFARE OF THE
MANY.  IN WEIGHING THE CONSIDERATIONS OF WHICH WE ARE MINDFUL HERE, WE
MUST RECOGNIZE THAT IF THESE REGULATIONS MAY BE SUSTAINED, SIMILAR
REGULATIONS MAY BE MADE EFFECTIVE IN RESPECT TO OTHER GROUPS AS TO WHOM
CONGRESS MAY NEXT CHOOSE TO EXPRESS ITS LEGISLATIVE FEARS.  NO DOUBT
MERCHANT SEAMEN ARE IN A SENSITIVE POSITION IN THAT THE OPPORTUNITIES
FOR SERIOUS SABOTAGE ARE NUMEROUS.  IF IT CAN BE SAID THAT A MERCHANT
SEAMAN NOTWITHSTANDING HIS BEING ON BOARD MIGHT SINK THE SHIP LOADED
WITH MUNITIONS FOR KOREA, IT IS PLAIN THAT MANY PERSONS OTHER THAN
SEAMEN WOULD BE JUST AS SUSCEPTIBLE TO SECURITY DOUBTS.  THE ENGINEMEN
AND TRAINMEN HAULING THE CARGO TO THE DOCKS, RAILROAD TRACK AND BRIDGE
INSPECTORS, SWITCHMEN AND DISPATCHERS, HAVE A MULTITUDE OF
OPPORTUNITIES FOR DESTRUCTION.  DANGEROUS PERSONS MIGHT INFILTRATE THE
SHIPPING ROOMS OF FACTORIES WHERE THE MUNITIONS ARE BEING PACKED FOR
SHIPMENT TO KOREA WITH OPPORTUNITIES FOR INSERTING BOMBS APPROPRIATELY
TIMED FOR EXPLOSION ON BOARD SHIP.  ALL PERSONS WHO ARE IN FACTORIES
MAKING MUNITIONS AND MATERIAL FOR THE ARMED FORCES HAVE OPPORTUNITIES
FOR SABOTAGE, AND THE SAME MAY BE SAID OF ALL OPERATORS OF
TRANSPORTATION FACILITIES, NOT TO MENTION WORKERS UPON THE DOCKS. 

     *         *         *         *         * 

"IT MAY BE POSSIBLE THAT WE HAVE REACHED AN AGE WHEN OUR SYSTEM OF
CONSTITUTIONAL FREEDOM AND INDIVIDUAL RIGHTS CANNOT HOLD ITS OWN
AGAINST THOSE WHO, UNDER TOTALITARIAN DISCIPLINE ARE PREPARED TO
INFILTRATE NOT ONLY OUR PUBLIC SERVICES, BUT OUR CIVILIAN EMPLOYMENTS
AS WELL.  IN THE EVEN OF WAR WE MAY HAVE TO ANTICIPATE BLACK TOM
EXPLOSIONS ON EVERY WATERFRONT, POISON IN OUR WATER SYSTEMS, AND SAND
IN ALL IMPORTANT INDUSTRIAL MACHINES.  BUT THE TIME HAS NOT COME WHEN
WE HAVE TO ABAONDON A SYSTEM OF LIBERTY FOR ONE MODELED ON THAT OF THE
COMMUNISTS.  SUCH A SYSTEM WAS NOT THAT ORDAINED BY THE FRAMERS OF OUR
CONSTITUTION.  IT IS THE LATTER WE ARE SWORN TO UPHOLD." 

MR. JUSTICE BRENNAN, DISSENTING.* 

*NOTE:  THIS DISSENTING OPINION OF MR. JUSTICE BRENNAN APPLIES ALSO
TO NO. 165, LERNER V. CASEY, POST, P. 468. 

IT IS INSTRUCTIVE ON OCCASION TO ASK WHY PARTICULAR CASES ARE BROUGHT
BEFORE THIS COURT FOR REVIEW.  THE COURT HAS SAID AGAIN AND AGAIN THAT
THE INCORRECTNESS OF A DECISION OF A COURT BELOW - AND ESPECIALLY OF A
STATE COURT - IS NOT SUFFICIENT REASON FOR US TO EXERCISE OUR
DISCRETIONARY POWER TO BRING THE CASE HERE.  THERE MUST BE "SPECIAL AND
IMPORTANT REASONS THEREFOR."  RULE 19(1) OF THIS COURT.  WE MUST,
THEREFORE, ASK OURSELVES THE QUESTION: WHAT SPECIAL CHARACTER AND
IMPORTANCE OF THE RIGHT ASSERTED JUSTIFIED OUR TAKING THESE CASES FOR
REVIEW? 

THE COURT TREATS THE CASES AS THOUGH THE ONLY RIGHT INVOLVED WERE THE
RIGHT OF AN UNRELIABLE SUBWAY CONDUCTOR AND AN INCOMPETENT
SCHOOLTEACHER TO HOLD THEIR JOBS.  BUT IF THAT WERE REALLY ALL THAT WAS
INVOLVED IN THESE CASES, I FAIL TO SEE WHY IT SHOULD TAKE SOME NINE
PAGES IN EACH CASE TO JUSTIFY THE STATE'S ACTION.  I CAN SCARCELY
BELIEVE THAT SUCH CONCERN WOULD BE DISPLAYED IF THE QUESTION WERE
WHETHER THERE WAS EVIDENCE TO SHOW THAT LERNER WAS UNRELIABLE ABOUT
GETTING THE SUBWAY DOORS OPENED PROMPTLY AT EACH STATION, OR THAT
BEILAN WAS INCOMPETENT AS AN ALGEBRA TEACHER.  IT IS OBVIOUS THAT MORE
IS AT STAKE HERE THAN THE LOSS OF POSITIONS OF PUBLIC EMPLOYMENT FOR
UNRELIABILITY OR INCOMPETENCE.  RATHER, IT IS THE SIMULTANEOUS PUBLIC
LABELING OF THE EMPLOYEES AS DISLOYAL THAT GIVES RISE TO OUR CONCERN. 

NEW YORK AND PENNSYLVANIA HAVE PUBLICLY ANNOUNCED THAT THE SUBWAY
CONDUCTOR AND TEACHER ARE DISLOYAL AMERICANS.  THIS CONSEQUENCE OF THE
STATES' ACTIONS IS DEVASTATING BESIDE THE LOSS OF EMPLOYMENT.  IN EACH
CASE A MAN'S HONOR AND REPUTATION ARE INDELIBLY STAINED.  "THERE CAN BE
NO DISPUTE ABOUT THE CONSEQUENCES VISITED UPON A PERSON EXCLUDED FROM
PUBLIC EMPLOYMENT ON DISLOYALTY GORUNDS.  IN THE VIEW OF THE COMMUNITY,
THE STAIN IS A DEEP ONE; INDEED, IT HAS BECOME A BADGE OF INFAMY." 
WIEMAN V. UPDEGRAFF, 344 U.S. 183, 190-191.  THE PETITIONERS THUS NOT
ONLY LOSE THEIR PRESENT JOBS, BUT THEIR STANDING IN THE COMMUNITY IS SO
UNDERMINED AS DOUBTLESS TO COST THEM MOST OPPORTUNITIES FOR FUTURE
JOBS. 

MOREOVER, THE STATES' ACTIONS TOUCH UPON IMPORTANT POLITICAL RIGHTS
WHICH HAVE EVER WARRANTED THE SPECIAL ATTENTION OF THE COURTS.  IT MAY
BE STATED AS A GENERALITY THAT GOVERNMENT IS NEVER AT LIBERTY TO BE
ARBITRARY IN ITS RELATIONS WITH ITS CITIZENS, AND CLOSE JUDICIAL
SCRUTINY IS ESSENTIAL WHEN STATE ACTION INFRINGES ON THE RIGHT OF A MAN
TO BE ACCEPTED IN HIS COMMUNITY, TO EXPRESS HIS IDEAS IN AN ATMOSPHERE
OF CALM DECENCY, AND TO BE FREE OF THE DARK STAIN OF SUSPICION AND
DISTRUST OF HIS LOYALTY ON ACCOUNT OF HIS POLITICAL BELIEFS AND
ASSOCIATIONS.  N.A.A.C.P. V. ALABAMA, POST, P. 449, DECIDED THIS DAY. 
IT IS THESE RIGHTS WHICH STAND BEFORE THE BAR TODAY, AND IT IS IN THE
AWARENESS OF THEIR IMPLICATIONS THAT THESE CASES MUST BE DECIDED. 

THE PEOPLE OF NEW YORK AND PENNSYLVANIA HAVE VOICED THROUGH THEIR
LEGISLATURES THEIR DETERMINATION THAT THE STAIN OF DISLOYALTY SHALL NOT
BE IMPRESSED UPON A STATE EMPLOYEE WITHOUT FAIR PROCEDURES IN WHICH THE
STATE CARRIES THE BURDEN OF PROVING SPECIFIC CHARGES BY A FAIR
PREPONDERANCE OF EVIDENCE.  CF. ADLER V. BOARD OF EDUCATION, 342 U.S.
485.  IN THE NEW YORK SECURITY RISK LAW AND THE PENNSYLVANIA LOYALTY
ACT THE STATES HAVE ENDEAVORED TO PROVIDE THE TRADITIONAL ANGLO
AMERICAN STANDARDS OF PROCEDURAL DUE PROCESS FOR THE ASCERTAINMENT OF
GUILT.  YET THIS COURT TODAY FINDS NO DENIAL OF DUE PROCESS IN THE
PALPABLE EVASION OF THESE STANDARDS OF FAIR PLAY BY ADMINISTRATIVE
OFFICIALS.  THIS COURT REFUSES TO PIERCE THE TRANSPARENT DENIALS THAT
EACH OF THESE EMPLOYEES WAS PUBLICLY BRANDED DISLOYAL.  THE COURT HOLDS
THAT WE ARE BOUND BY THE DEFINITION OF STATE LAW PRONOUNCED BY THE
STATES' HIGH COURTS THAT THE DISMISSALS WERE FOR UNRELIABILITY AND
INCOMPETENCY.  OF COURSE, WE ACCEPT STATE LAW AS THE HIGH COURT OF A
STATE PRONOUNCES IT, BUT CERTAINLY OUR DUTY TO SECURE TO THE INDIVIDUAL
THE SAFEGUARDS, EMBODIED IN DUE PROCESS, AGAINST A STATE'S ARBITRARY
EXERCISE OF POWER IS NO LESS WHEN THE STATE COURTS REFUSE TO RECOGNIZE
WHAT HAS IN FACT OCCURRED.  CF. PAYNE V. ARKANSAS, 356 U.S. 560; MOORE
V. MICHIGAN, 355 U.S. 155.  SEE ALSO BROAD RIVER POWER CO. V. SOUTH
CAROLINA EX REL. DANIEL, 281 U.S. 537, 540.  IN MY VIEW THE JUDGMENTS
IN BOTH CASES MUST BE REVERSED BECAUSE EACH PETITIONER HAS BEEN BRANDED
A DISLOYAL AMERICAN WITHOUT THE DUE PROCESS OF LAW REQUIRED OF THE
STATES BY THE FOURTEENTH AMENDMENT.  "STRICT ADHERENCE TO REQUIRED
LEGAL PROCEDURES, ESPECIALLY WHERE ONE'S LOYALTY IS BEING IMPUGNED,
AFFORDS THE GREATEST AND, IN LAST ANALYSIS, THE ULTIMATE ASSURANCE OF
THE INVIOLABILITY OF OUR FREEDOMS AS WE HAVE HERETOFORE KNOWN THEM IN
THIS COUNTRY.  LEAST OF ALL, SHOULD THEY BE IMPAIRED OR TRENCHED UPON
BY PROCEDURAL SHORTCUTS."  BOARD OF PUBLIC EDUCATION V. BEILAN, 386 PA.
82, 99, 125 A.2D 327, 335 (JONES, J., DISSENTING). 

                    LERNER V. CASEY. 

IN RESPONSE TO THE OUTBREAK OF HOSTILITIES IN KOREA IN 1950 THE NEW
YORK LEGISLATURE, EARLY IN ITS NEXT SESSION, ENACTED ITS SECURITY RISK
LAW, LAWS 1951, C. 233.  SECTION 1 OF THE ACT IS A DECLARATION OF
LEGISLATIVE FINDING THAT THE KOREAN HOSTILITIES HAD BROUGHT ABOUT THE
EXISTENCE "OF A SERIOUS PUBLIC EMERGENCY IN THIS STATE" AND THAT "THE
EMPLOYMENT OF MEMBERS OF SUBVERSIVE GROUPS AND ORGANIZATIONS BY
GOVERNMENT PRESENTS A GRAVE PERIL TO THE NATIONAL SECURITY."  SECTION 5
OF THE ACT PROVIDES THAT THE APPOINTING OFFICER MAY TRANSFER OR SUSPEND
A PERSON OCCUPYING A POSITION WITHIN A "SECURITY AGENCY" OF THE STATE
AFTER A FINDING BASED "UPON ALL THE EVIDENCE" THAT, "BECAUSE OF
DOUBTFUL TRUST AND RELIABILITY, THE EMPLOYMENT OF SUCH PERSON IN SUCH
POSITION WOULD ENDANGER THE SECURITY OR DEFENSE OF THE NATION AND THE
STATE."  PURSUANT TO SEC. 3 OF THE ACT THE STATE CIVIL SERVICE
COMMISSION DETERMINED IN 1953 THAT THE NEW YORK TRANSIT AUTHORITY IS A
"SECURITY AGENCY" FOR THE PURPOSES OF THE ACT.  IN 1954, APPELLANT
LERNER, A SUBWAY CONDUCTOR, WAS DIRECTED TO APPEAR BEFORE THE
DEPARTMENT OF INVESTIGATION OF THE CITY OF NEW YORK.  ON THIS AND A
SUBSEQUENT APPEARANCE HE REFUSED TO ANSWER THE QUESTION WHETHER HE WAS
THEN A MEMBER OF THE COMMUNIST PARTY ON THE GROUNDS THAT HIS ANSWER
MIGHT TEND TO INCRIMINATE HIM. 

WHEN THIS INFORMATION WAS BROUGHT TO THE ATTENTION OF THE TRANSIT
AUTHORITY THEY SENT A NOTICE TO APPELLANT ADVISING HIM THAT HE WAS
SUSPENDED UNDER SEC. 5 OF THE SECURITY RISK LAW BECAUSE "REASONABLE
GROUNDS EXIST FOR BELIEF THAT, BECAUSE OF DOUBTFUL TRUST AND
RELIABILITY, YOUR EMPLOYMENT IN THE POSITION OF CONDUCTOR WILL ENDANGER
THE SECURITY OR DEFENSE OF THE NATION AND STATE."  THE TRANSIT
AUTHORITY SPECIFIED THE GROUNDS FOR THIS BELIEF:  "YOU REFUSED TO
ANSWER QUESTIONS AS TO WHETHER YOU WERE THEN A MEMBER OF THE COMMUNIST
PARTY AND INVOKED THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES."  APPELLANT BROUGHT THIS ACTION IN THE NEW YORK STATE COURTS
ALLEGING, INTER ALIA, THAT THE FINDING THAT HE WAS A SECURITY RISK
WITHIN THE MEANING OF THE NEW YORK STATUTE IS WHOLLY WITHOUT EVIDENCE
AND THEREFORE VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE NEW YORK COURTS DISMISSED THIS CONTENTION BY THE
FOLLOWING REASONING: (1) APPELLANT'S REFUSAL TO ANSWER WHETHER HE WAS
THEN A MEMBER OF THE COMMUNIST PARTY PROVES A LACK OF CANDOR; (2) THE
LACK OF CANDOR PROVES THAT HE WAS OF DOUBTFUL TRUST AND RELIABILITY;
AND (3) DOUBTFUL TRUST AND RELIABILITY PROVES FURTHER THAT APPELLANT
WAS A SECURITY RISK WITHIN THE MEANING OF THE ACT.  THIS COURT, WITHOUT
DISCUSSION, FOLLOWS THIS CHAIN OF REASONING.  BUT CAREFUL ANALYSIS, I
BELIEVE, SHOWS THAT IT IS FALLACIOUS AND LEADS TO AN ARBITRARY RESULT. 
THE PROPER CONSIDERATION OF THIS CASE REQUIRES, I REPEAT, THAT THE
TRUE ISSUE BE STATED WITH CLARITY.  WE ARE CONCERNED WITH FAR MORE
THAN, IN THE COURT'S PHRASE, "THE VALIDITY OF APPELLANT'S DISMISSAL
FROM HIS POSITION AS A SUBWAY CONDUCTOR IN THE NEW YORK CITY TRANSIT
SYSTEM."  THE ISSUE IS, RATHER, THE VALIDITY OF HIS DISMISSAL AS A
SECURITY RISK.  THE DIFFERENCE IS PROFOUND, AS I HAVE SUGGESTED, FOR
THE LABEL "SECURITY RISK" INEVITABLY INVITES IN THE PUBLIC MIND THE
DEEP SUSPICION OF DISLOYALTY, NAMELY, THAT HE IS, IN THE WORDS OF THE
STATUTE, A THREAT TO "THE SECURITY OR DEFENSE OF THE NATION AND THE
STATE." 

OF COURSE, THE TERM "SECURITY RISK" IS NOT SYNONYMOUS WITH
"DISLOYAL."  IN CERTAIN POSITIONS - SUCH AS THOSE INVOLVING ACCESS TO
SECRET INFORMATION, FOR INSTANCE - AN EMPLOYEE WHO IS AN ALCOHOLIC OR
MERELY TOO TALKATIVE MAY WELL BE CONSIDERED A RISK TO SECURITY.  BUT
THIS IS NOT SUCH A CASE.  LERNER HANDLED NO SECRETS.  COMMON SENSE
TELLS US THAT IF A SUBWAY CONDUCTOR IS A SECURITY RISK AT ALL WHILE AT
WORK HE IS SUCH BECAUSE HE MAY ENGAGE IN SABOTAGE.  INDEED, THE RECORD
MAKES CLEAR THAT IT WAS JUST THIS DANGER THAT MOTIVATED THE NEW YORK
AUTHORITIES IN EXTENDING THE SECURITY RISK LAW TO THE TRANSIT SYSTEM. 

THE ONLY EVIDENCE RELIED UPON TO SHOW THAT LERNER IS A DISLOYAL
PERSON IS HIS REFUSAL TO ANSWER THE QUESTION WHETHER HE WAS A MEMBER OF
THE COMMUNIST PARTY.  IT MIGHT BE CONCEDED THAT THE QUESTION WAS
RELEVANT TO HIS QUALIFICATIONS FOR HIS JOB AND THEREFORE PROPERLY
ASKED.  BUT ONCE THE PROPRIETY OF THE QUESTION WAS ESTABLISHED, THE NEW
YORK COURT OF APPEALS APPROVED TREATING THE NATURE OF THE QUESTION AS
THOUGH IT WERE IRRELEVANT TO THE DETERMINATION OF THE ULTIMATE FACT OF
DISLOYALTY.  AND THIS COURT TOO SAYS THAT THE FINDING THAT LERNER IS A
SECURITY RISK COULD BE BASED ON A REFUSAL TO "GIVE ANY OTHER
INFORMATION ABOUT HIMSELF WHICH MIGHT BE RELEVANT TO HIS EMPLOYMENT." 
BUT CAN WE SUPPOSE THAT A SUBWAY CONDUCTOR WOULD BE BRANDED A SECURITY
RISK IF HE REFUSED TO ANSWER A QUESTION ABOUT HIS HEALTH?  OF COURSE
THE ANSWER IS NO, ALTHOUGH THE QUESTION IS PLAINLY RELEVANT TO HIS
QUALIFICATIONS FOR EMPLOYMENT.  IT MAY WELL BE THAT IN SUCH A CASE THE
STATE WOULD BE FULLY JUSTIFIED IN DISCHARGING THE EMPLOYEE AS
"UNTRUSTWORTHY AND UNRELIABLE."  BUT ONE WOULD HARDLY STRETCH REASON SO
FAR AS FURTHER TO LABEL HIM A "SECURITY RISK."  TO DO SO WOULD BE
ARBITRARY IN THE EXTREME.  IT IS EQUALLY ARBITRARY HERE, FOR NEW YORK
AND THIS COURT EXPRESSLY DISAVOW THE DRAWING OF ANY INFERENCES FROM THE
NATURE OF THE QUESTION ASKED OR FROM LERNER'S REFUSAL TO ANSWER IT.
NONETHELESS, BY INVOKING THE FORMALIZED PROCEDURES OF ITS SECURITY RISK
LAW, NEW YORK HAS PUBLICLY ANNOUNCED THAT IT POSSESSES THE EVIDENCE
REQUIRED BY THE TERMS OF THAT STATUTE TO JUSTIFY THE CONCLUSION THAT
LERNER IS IN FACT A DISLOYAL AMERICAN.  YET THE RECORD IS WHOLLY DEVOID
OF THE ESSENTIAL REQUISITE OF EVIDENCE TO SUPPORT THE ULTIMATE FINDING
OF DISLOYALTY.  CF. TOT V. UNITED STATES, 319 U.S. 463.  IN THIS
PLAINLY ARBITRARY MANNER, LERNER IS GRATUITOUSLY DEFAMED, HIS HONOR AND
REPUTATION INDELIBLY STAINED.  AND THE WOUND IS FAR DEEPER THAN THE
OCCASION DEMANDS, FOR CERTAINLY NEW YORK CANNOT LACK PROCEDURES UNDER
WHICH HE COULD HAVE BEEN DISCHARGED WITHOUT BLEMISHING HIS NAME. 

                             BEILAN V. BOARD OF PUBLIC EDUCATION. 

HERE ALSO, THE COURT HAS NOT, IN MY OPINION, STATED OR DECIDED THE
TRUE ISSUE OF DUE PROCESS TENDERED BY THIS CASE.  I DOUBT THAT A
MERITORIOUS QUESTION FOR OUR REVIEW WOULD BE PRESENTED IF THE ISSUE
WAS, AS THE COURT SAYS, THE CONSTITUTIONAL VALIDITY OF A DISMISSAL
SOLELY FOR REFUSAL OF THE TEACHER TO ANSWER THE RELEVANT QUESTIONS
ASKED BY THE SCHOOL SUPERINTENDENT IN PRIVATE INTERVIEWS.  I MIGHT
AGREE THAT THE DUE PROCESS CLAUSE IMPOSES NO RESTRAINT AGAINST
DISMISSAL OF A TEACHER WHO REFUSES TO ANSWER HIS SUPERIOR'S QUESTIONS
ASKED IN THE PRIVACY OF HIS OFFICE AND RELATED TO THE TEACHER'S FITNESS
TO CONTINUE IN HIS POSITION. 

BUT IN REALITY BEILAN WAS NOT DISMISSED BY THE PENNSYLVANIA SCHOOL
AUTHORITIES UPON THAT GROUND.  THE QUESTION WHETHER HE HAD BEEN AN
OFFICER IN THE COMMUNIST PARTY IN 1944 WAS FIRST ASKED OF BEILAN BY THE
SUPERINTENDENT AT A PRIVATE INTERVIEW ON JUNE 25, 1952.  BEILAN DID NOT
REFUSE AT THAT TIME TO ANSWER BUT ASKED PERMISSION TO CONSULT COUNSEL. 
THE SUPERINTENDENT SUMMONED HIM AGAIN ON OCTOBER 14, 1952, AND IT WAS
ON THAT DATE THAT BEILAN ADVISED THE SUPERINTENDENT THAT HE DECLINED TO
ANSWER THAT OR SIMILAR QUESTIONS.  THE SUPERINTENDENT HAD TOLD BEILAN
AT THE FIRST INTERVIEW THAT THE QUESTION WAS ASKED BECAUSE THE
SUPERINTENDENT HAD INFORMATION WHICH REFLECTED ON BEILAN'S LOYALTY. 
ALMOST FOURTEEN MONTHS ELAPSED BEFORE BEILAN WAS SUSPENDED AND THE
CHARGES PREFERRED WHICH LED TO HIS DISMISSAL.  IN THAT INTERVAL
BEILAN'S SUPERIORS HAD TWICE RATED HIM IN THE HIGH SATISFACTORY RANGE
OF COMPETENCY.  HAD THE AUTHORITIES SERIOUSLY REGARDED BEILAN AS
INCOMPETENT BECAUSE OF HIS REFUSAL TO ANSWER THE SUPERINTENDENT'S
QUESTION THEY WOULD HARDLY HAVE WAITED SO LONG BEFORE SUSPENDING HIM. 
THE RECORD IS CLEAR THAT PROCEEDINGS WERE ACTUALLY INITIATED NOT
BECAUSE OF THAT REFUSAL TO ANSWER BUT BECAUSE ON NOVEMBER 18, 1953,
BEILAN ASSERTED THE PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE
FIFTH AMENDMENT WHEN INTERROGATED AT A PUBLICLY TELEVISED HEARING HELD
IN PHILADELPHIA BY A SUBCOMMITTEE OF THE COMMITTEE ON UN-AMERICAN
ACTIVITIES OF THE HOUSE OF REPRESENTATIVES.  BEILAN TESTIFIED AT THAT
HEARING THAT HE WAS NOT THEN A MEMBER OF THE COMMUNIST PARTY AND HAD
NEVER ADVOCATED THE OVERTHROW OF THE GOVERNMENT BY FORCE OR VIOLENCE
BUT PLEADED THE PROTECTION OF THE FIFTH AMENDMENT WHEN ASKED QUESTIONS
DIRECTED TO PAST PARTY MEMBERSHIP AND ACTIVITIES.  FIVE DAYS LATER, ON
NOVEMBER 23, 1953, THE SUPERINTENDENT NOTIFIED BEILAN THAT HE HAD BEEN
RATED "UNSATISFACTORY" BECAUSE HE HAD REFUSED TO ANSWER THE
SUPERINTENDENT'S QUESTION AND ALSO BECAUSE "YOU INVOKED THE FIFTH
AMENDMENT OF THE FEDERAL CONSTITUTION" WHEN QUESTIONED AS TO "PAST
ASSOCIATIONS WITH ORGANIZATIONS OF DOUBTFUL LOYALTY" BY THE
SUBCOMMITTEE.  THE OPINION ON BEILAN'S ADMINISTRATIVE APPEAL WHICH
SUSTAINED HIS DISMISSAL BY THE BOARD OF EDUCATION MAKES IT CLEAR THAT
THE AUTHORITIES VIEWED BEILAN'S INVOCATION OF THE FIFTH AMENDMENT
BEFORE THE SUBCOMMITTEE AS AN ADMISSION OF DISLOYALTY.  THE OPINION
STATES: "BY ALL THE CONCEPTS OF LOGIC AND REASON THE TEACHER ADMITS
THAT HE HAS DONE SOMETHING FOR WHICH HE MIGHT BE PROSECUTED
CRIMINALLY."  IT IS THIS ADMINISTRATIVE RECORD WHICH BEILAN MUST
PRESENT TO HIS NEXT EMPLOYER.  CF. HARMON V. BRUCKER, 355 U.S. 579. 

THE COURT OF COMMON PLEAS FOUND THAT THE ADMINISTRATIVE PROCEEDINGS
WERE ACTUALLY CONCERNED SOLELY WITH THE QUESTION OF BEILAN'S SUSPECTED
DISLOYALTY AND REVERSED UPON THE GROUND THAT "THE LEGISLATURE INDENDED
TO DEAL WITH THE MATTER OF LOYALTY SOLELY BY THE METHOD OF PROCEDURE
PROVIDED IN THE PENNSYLVANIA LOYALTY ACT." 

THE PENNSYLVANIA SUPREME COURT, HOWEVER, DID NOT PASS UPON THE
QUESTION OF THE PROPRIETY OF THE INFERENCE OF DISLOYALTY DRAWN BY THE
ADMINISTRATIVE AUTHORITIES FROM BEILAN'S INVOCATION OF THE FIFTH
AMENDMENT BEFORE THE SUBCOMMITTEE.  THAT QUESTION IS, THEREFORE, NOT
BEFORE US.  THE PENNSYLVANIA SUPREME COURT HELD THAT THE ACTION OF THE
AUTHORITIES MIGHT BE SUSTAINED SOLELY BECAUSE BEILAN HAD REFUSED TO
ANSWER THE SUPERINTENDENT'S QUESTION.  BUT THIS IS TO SUSTAIN A FINDING
OF BEILAN'S DISLOYALTY WITHOUT COMPETENT EVIDENCE OF THE FACT.  AS IN
LERNER THE INFERENCE OF DISLOYALTY IS ARBITRARY IN THE EXTREME.  YET
PENNSYLVANIA, LIKE NEW YORK IN THE LERNER CASE, PUBLICLY ANNOUNCES
CONTRARY TO THE FACT THAT IT POSSESSES COMPETENT EVIDENCE JUSTIFYING
THE CONCLUSION THAT BEILAN IS IN FACT A DISLOYAL AMERICAN.  IN MY VIEW
BEILAN ALSO IS, IN THAT ARBITRARY MANNER, DENIED DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT. 

I WOULD REVERSE BOTH JUDGMENTS. 
..END :























ASHDOWN V. UTAH 357 U.S. 426 


NO. 158.  ARGUED APRIL 1, 1958 - DECIDED JUNE 30, 1958 - 5 UTAH 2D 59,
296 P.2D 726, AFFIRMED. 


PETITIONER CLAIMS THAT HER CONVICTION IN A STATE COURT OF FIRST-DEGREE
MURDER WAS OBTAINED BY USE IN EVIDENCE OF AN ORAL CONFESSION WHICH HAD
BEEN OBTAINED IN SUCH A MANNER THAT ITS USE VIOLATED DUE PROCESS OF LAW
UNDER THE FOURTEENTH AMENDMENT.  HER HUSBAND HAD DIED SUDDENLY. 
ARRIVING AT THE CEMETERY JUST AFTER THE INTERMENT, THE SHERIFF ASKED
HER TO COME TO THE COURTHOUSE, WHICH SHE DID.  THERE SHE TALKED WITH
THE SHERIFF, A DEPUTY SHERIFF AND THE DISTRICT ATTORNEY, ALL OF WHOM
SHE KNEW.   THE DISTRICT ATTORNEY ADVISED HER THAT SHE DID NOT HAVE TO
ANSWER ANY QUESTIONS AND WAS ENTITLED TO AN ATTORNEY, BUT SHE DID NOT
REQUEST AN ATTORNEY UNTIL AFTER HER ORAL CONFESSION.  SHE WAS TREATED
IN A TEMPERATE AND COURTEOUS MANNER.  SHE WAS TOLD THAT HER HUSBAND HAD
DIED OF POISONING, AND THE MATTER WAS APPROACHED AS IF TO DISCOVER
WHETHER IT HAD BEEN ACCIDENTAL.  THE DISTRICT ATTORNEY TOLD HER THAT HE
HAD ONCE BEEN CLEARED OF A CRIMINAL CHARGE BY COOPERATING WITH THE
INVESTIGATORS.  THE OFFICERS LET HER TALK FREELY ON FAMILY MATTERS
WITHOUT INTERRUPTION.  ABOUT FOUR AND A HALF HOURS AFTER THE INTERVIEW
BEGAN, SHE MADE THE ORAL CONFESSION IN ISSUE HERE.  MEANWHILE, HER
FATHER AND UNCLE HAD COME TO THE BUILDING AND ASKED TO SEE HER, BUT
THEY WERE NOT PERMITTED TO DO SO UNTIL AFTER THE INTERVIEW.  HELD:  THE
RECORD CONTAINS AMPLE SUPPORT FOR A FINDING THAT THE OFFICERS DID NOT
TAKE ADVANTAGE OF PETITIONER AND THAT NOTHING THEY DID HAD THE EFFECT
OF OVERBEARING HER WILL; AND THE JUDGMENT IS AFFIRMED.  PP. 427-431. 

ASHDOWN V. UTAH. 

CERTIORARI TO THE SUPREME COURT OF UTAH. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

A JURY IN A UTAH COURT FOUND PETITIONER, MRS. ASHDOWN, GUILTY OF THE
FIRST-DEGREE MURDER OF HER HUSBAND AND RECOMMENDED A LIFE SENTENCE. 
THE QUESTION BEFORE US IS WHETHER PETITIONER'S ORAL CONFESSION WAS
OBTAINED IN SUCH A MANNER AS TO MAKE ITS USE IN EVIDENCE A VIOLATION OF
THE DUE PROCESS OF LAW REQUIRED BY THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES.  THIS ISSUE WAS THOROUGHLY
CONSIDERED BY THE TRIAL COURT WHICH MADE FINDINGS IN RELATION TO IT.
THE SUPREME COURT OF UTAH REVIEWED THE RECORD IN DETAIL AND UPHELD THE
ADMISSION OF THE CONFESSION.  5 UTAH 2D 59, 296 P.2D 726.  WE GRANTED
CERTIORARI.  353 U.S. 981.  OUR INDEPENDENT REVIEW OF THE RECORD BRINGS
US TO THE SAME CONCLUSION. 

ON JULY 5, 1955, RAY ASHDOWN, PETITIONER'S HUSBAND, DIED SUDDENLY IN
HIS HOME IN CEDAR CITY, UTAH.   PETITIONER HAD SUMMONED A DOCTOR WHO
ARRIVED SHORTLY BEFORE RAY ASHDOWN'S DEATH.  THE DOCTOR TESTIFIED THAT
THE DECEASED GAVE THE APPEARANCE OF HAVING BEEN POISONED AND THAT HE
TOLD THE DOCTOR JUST BEFORE HE DIED THAT HE HAD TAKEN SOME BITTER
TASTING LEMON JUICE ABOUT A HALF HOUR EARLIER.  ON BEING CALLED, THE
SHERIFF MADE A THOROUGH SEARCH OF THE ASHDOWN HOME BUT FOUND NO TRACE
OF ANY POISON.  AN AUTOPSY WAS PERFORMED, AND THE CONTENTS OF THE
DECEASED'S STOMACH WAS SENT TO THE STATE CHEMIST'S OFFICE FOR
ANALYSIS.  THE REPORT, RECEIVED BY THE SHERIFF ON JULY 9, STATED THAT
THE STOMACH OF THE DECEASED CONTAINED STRYCHNINE. 

JULY 9 WAS THE DAY OF THE FUNERAL.  PROMPTLY AFTER RECEIPT OF THE
CHEMIST'S REPORT, THE SHERIFF WENT TO THE CEMETERY, ARRIVING JUST AFTER
THE INTERMENT.  THROUGH PETITIONER'S BROTHER-IN-LAW, THE SHERIFF ASKED
THAT PETITIONER COME TO THE COUNTY AND CITY BUILDING.  AT ABOUT 4 P.M.
SHE AND HER SISTER ARRIVED AT THE SHERIFF'S OFFICE.  THE SHERIFF ASKED
TO TALK WITH PETITIONER PRIVATELY AND SHE CONSENTED.  THEY WENT ACROSS
THE HALL TO AN EMPTY COURTROOM WHERE THE SHERIFF, A DEPUTY SHERIFF AND
THE DISTRICT ATTORNEY, ALL PEOPLE KNOWN BY THE PETITIONER, TALKED WITH
HER FOR THE NEXT FIVE AND ONE-HALF HOURS. 

THE SHERIFF TOLD PETITIONER THE RESULTS OF THE AUTOPSY AND THE
CHEMIST'S REPORT.  WITHIN THE FIRST HALF HOUR, THE DISTRICT ATTORNEY
ADVISED HER THAT SHE DID NOT HAVE TO ANSWER ANY QUESTIONS AND THAT SHE
WAS ENTITLED TO CONSULT WITH AN ATTORNEY.  SHE MADE NO REQUEST FOR AN
ATTORNEY AT THAT TIME.  SHE SAID SHE DID NOT THINK SHE COULD ADD
ANYTHING TO HELP THE INVESTIGATION, BUT SHE MENTIONED HER HUSBAND HAD
BEEN DESPONDENT ON SEVERAL OCCASIONS.  THE OFFICERS LET HER TALK FREELY
ON FAMILY MATTERS WITHOUT INTERRUPTION AND SUCH CONVERSATION CONSUMED
ABOUT HALF THE TIME SPENT IN THE INTERVIEW.  THE SHERIFF ATTEMPTED TO
DIRECT HER ATTENTION TO DISCOVERING WHETHER HER HUSBAND'S DEATH MIGHT
HAVE BEEN DUE TO AN ACCIDENT.  TO IMPRESS HER WITH THE IMPORTANCE OF
THE DISTINCTION BETWEEN MURDER AND MANSLAUGHTER, THE DISTRICT ATTORNEY
READ HER SOME OF THE STATUTES RELATING TO THOSE CRIMES.  IN ADDITION,
HE TOLD HER ABOUT AN EXPERIENCE HE HAD IN THE ARMY IN EUROPE.  HE SAID
HE HAD BEEN ACCUSED OF KILLING FIVE MEN BUT, BY COOPERATING WITH
INVESTIGATING OFFICIALS, HE HAD BEEN CLEARED OF ALL BLAME FOR THOSE
DEATHS. 

THE OFFICERS REVIEWED IN DETAIL THE EVENTS OF JULY 5.  PETITIONER
ADMITTED GIVING HER HUSBAND A CUP OF LEMON JUICE ABOUT A HALF HOUR
BEFORE HIS DEATH.  SHE SAID SHE HAD PUT SALT IN THE JUICE AND DENIED
THAT SHE MIGHT HAVE MISTAKENLY USED POISON INSTEAD OF SALT.  THE
SHERIFF ASKED WHETHER THE DECEASED DRANK ALL OF THE LEMON JUICE OFFERED
HIM.  PETITIONER REPLIED THAT HE HAD NOT, AND THAT SHE HAD THROWN OUT
THE REMAINDER AND PUT THE CUP, UNWASHED, ON TOP OF THE FRIGIDAIRE.  IN
THEIR SEARCH OF THE HOUSE, THE OFFICERS FOUND THE CUP, WASHED, STANDING
ON THE DRAINBOARD.  WHEN ASKED ABOUT IT, PETITIONER SAID THAT, AFTER
SHE HAD GONE FOR THE SECOND TIME TO A NEIGHBOR'S HOUSE TO CALL THE
DOCTOR (WHO ARRIVED BEFORE SHE RETURNED), SHE HAD WASHED THE CUP AND
PLACED IT WHERE THE OFFICERS FOUND IT.  PETITIONER COULD NOT EXPLAIN
WHY SHE HAD WALKED PAST THE DOCTOR AND HER HUSBAND, WHO WAS AT THAT
MOMENT IN THE LAST EXTREMITY, TO WASH A CUP.  PETITIONER SEVERAL TIMES
ASKED WHETHER THE OFFICERS WANTED HER TO CONFESS TO SOMETHING SHE HAD
NOT DONE, AND THEY REPEATEDLY TOLD HER THEY DID NOT. 

PETITIONER, AT ONE POINT, STATED THAT HER HUSBAND HAD PUT THE
STRYCHNINE IN THE LEMON JUICE.  AFTER A BRIEF INTERROGATION AS TO HOW
HE HAD DONE IT, THE SHERIFF TOLD HER HE DID NOT BELIEVE HER HUSBAND HAD
POISONED HIMSELF.  PETITIONER THEN CONFESSED THAT SHE HAD PUT FIVE OR
SIX GRAINS OF STRYCHNINE IN THE CUP.  SHE SAID SHE HAD PLANNED TO TAKE
IT HERSELF BUT LATER DECIDED TO GIVE IT TO HER HUSBAND.  THE SHERIFF
TESTIFIED THAT SHE WAS EMOTIONALLY UPSET, CRYING AND SOBBING.  THE
CONFESSION CAME ABOUT FOUR AND ONE-HALF HOURS AFTER THE QUESTIONING
BEGAN.  PETITIONER HESITATED TO SAY WHERE SHE HAD OBTAINED THE
STRYCHNINE AND SUGGESTED SHE SHOULD HAVE AN ATTORNEY.  THE SHERIFF DID
NOT RESPOND TO THIS REQUEST.  HE SAID MERELY THAT SHE HAD TOLD THEM
EVERYTHING EXCEPT WHERE THE POISON CAME FROM, AND SHE MIGHT AS WELL
TELL THAT "AND GET THIS OVER WITH."  SHE THEN TOLD WHERE SHE HAD
OBTAINED THE STRYCHNINE. 

MEANWHILE, PETITIONER'S FATHER AND UNCLE HAD COME TO THE COUNTY AND
CITY BUILDING.  THEY ASKED TO SEE PETITIONER AND THEIR REQUEST WAS
DENIED, PENDING COMPLETION OF THE INTERVIEW.  THEY WAITED IN THE
SHERIFF'S OFFICE AND, AT HIS REQUEST, MADE SEVERAL TRIPS TO THE ASHDOWN
HOME.  FROM THEIR POSITION IN THE HALL OUTSIDE THE COURTROOM, THEY
HEARD PETITIONER CRYING AND SOBBING.  AFTER PETITIONER HAD CONFESSED,
THE SHERIFF ASKED HER WHETHER SHE WANTED TO SEE HER RELATIVES.  AT
FIRST SHE REFUSED, SAYING SHE WAS ASHAMED TO FACE THEM, BUT THE SHERIFF
PERSISTED AND SHE EVENTUALLY CONSENTED. 

ON THE 10TH, THE SHERIFF PREPARED A WRITTEN STATEMENT OF WHAT
PETITIONER HAD SAID THE DAY BEFORE AND TOOK IT TO HER CELL.  SHE WAS
TOLD SHE COULD SIGN THE STATEMENT OR NOT AS SHE WISHED, AND SHE COULD
MAKE CHANGES.  SHE EXAMINED THE STATEMENT CAREFULLY, MADE NUMEROUS
CHANGES, AND SIGNED IT. 

AT THE TRIAL, THE COURT HELD AN EXTENDED HEARING IN THE ABSENCE OF
THE JURY ON THE ADMISSIBILITY OF PETITIONER'S CONFESSIONS.  PETITIONER
TOOK THE STAND DURING THE PRELIMINARY HEARING BUT TESTIFIED ONLY AS TO
WHAT THE DISTRICT ATTORNEY HAD SAID.  SHE DID NOT CHALLENGE ANY OTHER
STATEMENTS OF THE SHERIFF, THE DEPUTY SHERIFF OR THE DISTRICT
ATTORNEY.  THE TRIAL COURT RULED THAT ALL STATEMENTS MADE BY PETITIONER
AFTER HER REQUEST FOR AN ATTORNEY, INCLUDING THE WRITTEN STATEMENT,
SHOULD BE EXCLUDED.  THUS, ONLY THE ORAL CONFESSION WAS INTRODUCED IN
EVIDENCE BEFORE THE JURY. 

PETITIONER EMPHASIZES THE STATEMENT OF THE DISTRICT ATTORNEY THAT HE
HAD ONCE AVOIDED A CRIMINAL CHARGE BY COOPERATING WITH THE
INVESTIGATING OFFICERS.  PETITIONER ARGUES THAT THIS STATEMENT WAS AN
IMPLIED PROMISE OF IMMUNITY OR LENIENCY TO BE EXERCISED IN RETURN FOR A
CONFESSION.  WE AGREE WITH THE SUPREME COURT OF UTAH THAT, UNDER THE
CIRCUMSTANCES, THIS STATEMENT WAS NOT IMPROPER.  IT WAS MADE LONG
BEFORE PETITIONER CONFESSED AND IN CONNECTION WITH THE SEARCH FOR AN
ACCIDENTAL EXPLANATION OF THE DEATH.  MOREOVER, PETITIONER WAS
REPEATEDLY TOLD NOT TO CONFESS TO SOMETHING SHE HAD NOT DONE. 

A STUDY OF THE RECORD AS A WHOLE CONVINCES US THAT THE INTERVIEW WITH
PETITIONER WAS TEMPERATE AND COURTEOUS.  THE SHERIFF PROCEEDED
CAUTIOUSLY AND ACTED WITH CONSIDERATION FOR THE FEELINGS OF
PETITIONER.  FOR EXAMPLE, HE EXPLAINED THAT THE REASON HE DID NOT SEEK
A WRITTEN STATEMENT UNTIL THE DAY AFTER THE INTERVIEW WAS THAT "WE
THOUGHT WE WOULD TALK TO HER ON THE 10TH, SHE WOULD BE CALM AND
WOULDN'T BE EXCITED AND SHE WOULD KNOW WHAT SHE WAS DOING.  WE DIDN'T
WANT TO FEEL LIKE TAKING ADVANTAGE OF HER."  PETITIONER'S EMOTIONAL
DISTRESS DURING THE INTERVIEW MAY BE ATTRIBUTED TO HER REMORSE, RATHER
THAN TO ANY COERCIVE CONDUCT OF THE OFFICERS.  THERE IS NOTHING IN THE
RECORD WHICH INDICATES THAT THE SHERIFF CHOSE TO QUESTION PETITIONER
IMMEDIATELY AFTER HER HUSBAND'S FUNERAL IN ORDER TO CAPITALIZE ON HER
FEELINGS.  RATHER, HE APPEARS TO HAVE TAKEN THE FIRST OPPORTUNITY TO
TALK WITH HER AFTER IT HAD BEEN ESTABLISHED THAT HER HUSBAND'S DEATH
WAS CAUSED BY POISONING.  THE QUESTIONING WAS DONE BY OFFICERS WHOM
PETITIONER KNEW.  SHE WAS NOT QUESTIONED IN RELAYS OR MADE TO REPEAT A
STORY OVER AND OVER WHILE THE INTERROGATORS SEARCHED FOR AN
INCONSISTENCY OR FLAW.  SHE WAS ALLOWED TO TALK WITHOUT INTERRUPTION
ABOUT SUCH MATTERS AS SHE CHOSE.  IN SUM, WE FIND AMPLE SUPPORT IN THIS
RECORD FOR A FINDING THAT THE OFFICERS DID NOT INTEND TO TAKE ADVANTAGE
OF PETITIONER AND THAT NOTHING THEY DID HAD THE EFFECT OF OVERBEARING
HER WILL. 

ACCORDINGLY, THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE UNCLE AND THE FATHER OF PETITIONER APPEARED AT THE SHERIFF'S
OFFICE SHORTLY AFTER PETITIONER WAS ARRESTED.  THE UNCLE TESTIFIED THAT
HE SAID, "I DON'T THINK SHE HAS GOT A RIGHT TO BE QUESTIONED WITHOUT
HER FATHER'S PRESENCE OR SOME ATTORNEY."  THE FATHER TESTIFIED THAT HE
SAID, "I MADE THE REMARK THAT IT DIDN'T LOOK TO ME LIKE A FAIR, SQUARE
DEAL, TO RAILROAD THAT GIRL INTO THAT SHERIFF'S OFFICE WITHOUT COUNSEL
OR FRIENDS OF ANY DESCRIPTION." 

THE UNCLE AND THE FATHER WERE DENIED ADMISSION.  THEY WERE CALMED BY
THE ASSURANCE THAT THE ACCUSED HAD A LAWYER AT HER SIDE TO AID HER
UNDER THE QUESTIONING OF THE POLICE - WHICH WAS NOT TRUE. 

THE REQUEST OF A NEXT OF KIN OR FRIEND OUTSIDE THE JAIL THAT COUNSEL
BE FURNISHED THE ACCUSED WHO WAS INSIDE UNDER EXAMINATION SHOULD BE
DEMAND ENOUGH.  CERTAINLY THOSE ON THE OUTSIDE WOULD HAVE CALMER
JUDGMENT THAN THE ACCUSED.  THEY SHOULD SPEAK FOR HER UNLESS IT IS
CLEAR, AS IT WAS NOT IN THIS CASE, THAT THE ACCUSED HAD WAIVED HER
RIGHT TO A LAWYER AND HAD ELECTED TO TALK INSTEAD.  FOR THE REASONS
STATED IN MY DISSENT IN CROOKER V. CALIFORNIA, POST, P. 441, DECIDED
THIS DAY, I WOULD REVERSE THIS JUDGMENT OF CONVICTION. 
..END :



CROOKER V. CALIFORNIA 357 U.S. 433 


NO. 178.  ARGUED APRIL 2, 1958.  - DECIDED JUNE 30, 1958.  - 47 CAL. 2D
348, 303 P.2D 753, AFFIRMED. 


PETITIONER, A 31-YEAR-OLD COLLEGE GRADUATE WHO HAD ATTENDED THE FIRST
YEAR OF LAW SCHOOL AND HAD STUDIED CRIMINAL LAW, WAS CONVICTED IN A
STATE COURT OF MURDER AND SENTENCED TO DEATH, AND HIS CONVICTION WAS
AFFIRMED BY THE STATE SUPREME COURT.  HE CLAIMS THAT HIS CONVICTION
VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, BECAUSE
(1) THE CONFESSION ADMITTED IN EVIDENCE OVER HIS OBJECTION WAS COERCED,
AND (2) EVEN IF IT WAS VOLUNTARY, IT OCCURRED WHILE HE WAS WITHOUT
COUNSEL BECAUSE OF DENIALS OF HIS REQUESTS FOR AN OPPORTUNITY TO OBTAIN
COUNSEL.  DURING THE 14 HOURS BETWEEN HIS ARREST AND CONFESSION, HE
ASKED SEVERAL TIMES FOR AN OPPORTUNITY TO GET COUNSEL, BUT THIS WAS
DENIED UNTIL AFTER HE HAD CONFESSED.  MEANWHILE, HE REFUSED TO TAKE A
LIE DETECTOR TEST, REFUSED TO ANSWER MANY QUESTIONS, AND SHOWED FULL
AWARENESS OF HIS RIGHT TO BE SILENT.  HE WAS ADVISED BY A POLICE
LIEUTENANT THAT HE NEED NOT ANSWER ANY QUESTIONS HE DID NOT WISH TO
ANSWER.  THE QUESTIONING BY SEVERAL POLICE OFFICERS WAS INTERMITTENT,
AND PETITIONER WAS GIVEN COFFEE, MILK AND A SANDWICH AND ALLOWED TO
SMOKE WHENEVER HE LIKED.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 434
441. 

1.  ON THE RECORD, THIS COURT IS UNABLE TO SAY THAT PETITIONER'S
CONFESSION WAS ANYTHING OTHER THAN VOLUNTARY.  PP. 434-438. 

2.  DENIAL BY STATE OFFICIALS OF THE REQUEST OF AN ACCUSED FOR AN
OPPORTUNITY TO ENGAGE COUNSEL AT ANY STAGE OF THE PRE-TRIAL PROCEEDINGS
IN A CRIMINAL CASE VIOLATES DUE PROCESS, IF HE IS SO PREJUDICED THEREBY
AS TO MAKE HIS SUBSEQUENT TRIAL LACKING IN BASIC FAIRNESS; BUT THE
RECORD IN THIS CASE DOES NOT SHOW THAT PETITIONER WAS SO PREJUDICED. 
PP. 438-441. 

CROOKER V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, UNDER SENTENCE OF DEATH FOR THE MURDER OF HIS PARAMOUR,
CLAIMS THAT HIS CONVICTION IN A CALIFORNIA COURT VIOLATES FOURTEENTH
AMENDMENT DUE PROCESS OF LAW BECAUSE (1) THE CONFESSION ADMITTED INTO
EVIDENCE OVER HIS OBJECTION HAD BEEN COERCED FROM HIM BY STATE
AUTHORITIES, AND (2) EVEN IF HIS CONFESSION WAS VOLUNTARY IT OCCURRED
WHILE HE WAS WITHOUT COUNSEL BECAUSE OF THE PREVIOUS DENIAL OF HIS
REQUEST THEREFOR.  THE SUPREME COURT OF CALIFORNIA AFFIRMED THE
CONVICTION.  47 CAL. 2D 348, 303 P.2D 753.  CERTIORARI WAS GRANTED
BECAUSE OF THE SERIOUS DUE PROCESS IMPLICATIONS THAT ATTEND STATE
DENIAL OF A REQUEST TO EMPLOY AN ATTORNEY.  354 U.S. 908 (1957).  (FN1)
WE CONCLUDE, HOWEVER, THAT NO VIOLATION OF CONSTITUTIONAL RIGHT HAS
OCCURRED. 

THE RECORD HERE CLEARLY REVEALS THAT PRIOR TO PETITIONER'S CONFESSION
HE ASKED FOR AND WAS DENIED OPPORTUNITY TO CALL HIS LAWYER.  WE FIRST
CONSIDER THAT DENIAL IN CONNECTION WITH PETITIONER'S CONTENTION THAT
HIS SUBSEQUENT CONFESSION WAS INVOLUNTARY IN NATURE. 

IT IS WELL ESTABLISHED THAT THE FOURTEENTH AMENDMENT PROHIBITS USE OF
COERCED CONFESSIONS IN STATE PROSECUTIONS.  E.G., BROWN V. MISSISSIPPI,
297 U.S. 278 (1936); WATTS V. INDIANA, 338 U.S. 49 (1949); FIKES V.
ALABAMA, 352 U.S. 191 (1957).  AS IN THOMAS V. ARIZONA, 356 U.S. 390,
AND PAYNE V. ARKANSAS, 356 U.S. 560, BOTH DECIDED THIS TERM, WE
CONSIDER THE UNDISPUTED FACTS IN THE RECORD TO ASCERTAIN WHETHER THE
CONFESSION RESULTED FROM POLICE COERCION OR THE EXERCISE OF
PETITIONER'S OWN FREE WILL. 

THE VICTIM'S SON DISCOVERED HER BODY THE MORNING OF JULY 5, 1955,
STABBED AND STRANGLED TO DEATH IN THE BEDROOM OF HER LOS ANGELES HOME. 
SHE WAS LAST KNOWN TO BE ALIVE ABOUT 1 A.M. THE SAME DAY, WHEN SHE
TALKED WITH A FRIEND BY TELEPHONE. 

PETITIONER WAS ARRESTED IN HIS APARTMENT AT 1:30 THAT AFTERNOON AND
SUBSEQUENTLY WAS CHARGED WITH THE MURDER.  HE WAS THEN 31 YEARS OF AGE,
A COLLEGE GRADUATE WHO HAD ATTENDED THE FIRST YEAR OF LAW SCHOOL. 
WHILE GOING TO LAW SCHOOL HE HAD BEEN A HOUSEBOY IN THE HOME OF THE
VICTIM.  THAT POSITION LED TO AN ILLICIT RELATIONSHIP WITH HER, WHICH
SHE HAD ATTEMPTED SEVERAL TIMES TO TERMINATE IN THE MONTH PRECEDING HER
DEATH.  THE WEEK OF HER DEATH, AFTER TELLING PETITIONER THEY HAD BEEN
FOUND OUT, SHE HAD REQUESTED, AND HE HAD AGREED, THAT HE WOULD NEVER
SEE HER AGAIN. 

DESPITE THIS UNDERSTANDING, HE RETURNED TO HER HOUSE LATE IN THE
AFTERNOON OF JULY 4.  FINDING NO ONE AT HOME, HE HID NEARBY FOR THE
OSTENSIBLE PURPOSE OF DISCOVERING WHO WAS "THREATENING" HER.  FROM HIS
HIDING PLACE HE WATCHED THE VICTIM RETURN HOME WITH AN ESCORT AROUND
MIDNIGHT.  SHORTLY THEREAFTER HE SAW THE ESCORT LEAVE AND WATCHED THE
VICTIM TALK ON THE TELEPHONE.  HE CLAIMS THAT HE THEN LEFT THE VICINITY
TO RETURN TO HIS APARTMENT, NEVER HAVING ENTERED THE HOUSE THAT
EVENING. 

AT THE TIME OF HIS ARREST, PETITIONER WAS QUESTIONED ABOUT SCRATCHES
THAT WERE EVIDENT ON HIS NECK AND HANDS.  HE ATTRIBUTED THE FORMER TO
SHAVING AND THE LATTER TO A TRAFFIC MISHAP ON HIS WAY TO THE BEACH ON
JULY 4.  HOWEVER HE REFUSED TO REVEAL WHERE THE ACCIDENT OCCURRED. 
AFTER HIS APARTMENT WAS SEARCHED, PETITIONER WAS TAKEN TO THE LOS
ANGELES POLICE STATION, WHERE HE WAS PHOTOGRAPHED AND ASKED TO TAKE A
LIE DETECTOR TEST.  HE REFUSED TO SUBMIT TO THE TEST, AND INDICATED
THAT HE WANTED TO CALL AN ATTORNEY.  AT NO TIME, HOWEVER, DOES IT
APPEAR THAT PETITIONER WAS OFFERED THE USE OF A TELEPHONE.  ASIDE FROM
SPORADIC QUESTIONING AT HIS APARTMENT, PETITIONER WAS INTERROGATED FOR
THE FIRST TIME FROM 8:30-9:30 P.M., THE QUESTIONING BEING CONDUCTED BY
FOUR OFFICERS AND CENTERING AROUND HIS REFUSAL OF THE LIE DETECTOR
TEST.  DURING THIS TIME HE ASKED FOR AN OPPORTUNITY TO GET A LAWYER,
NAMING A SPECIFIC ATTORNEY WHOM HE THOUGHT MIGHT REPRESENT HIM, BUT WAS
TOLD THAT "AFTER (THE) INVESTIGATION WAS CONCLUDED HE COULD CALL AN
ATTORNEY." 

AT 9:30 P.M. PETITIONER WAS TRANSFERRED TO THE WEST LOS ANGELES
POLICE STATION, WHERE FIVE OFFICERS QUESTIONED HIM FROM 11 P.M. UNTIL
SHORTLY AFTER MIDNIGHT.  HE THEN WAS FORMALLY "BOOKED," AND GIVEN A
PHYSICAL EXAMINATION BY A POLICE PHYSICIAN.  THE THIRD AND LAST
QUESTIONING PERIOD WAS CONDUCTED BY THE SAME FIVE MEN FROM
APPROXIMATELY 1-2 A.M. JULY 6.  FOR THE NEXT HOUR PETITIONER WROTE AND
SIGNED A DETAILED CONFESSION OF THE MURDER.  AFTERWARD, HE WAS TAKEN TO
THE VICTIM'S HOME TO RE-ENACT THE CRIME.  AT 5 A.M. HE WAS PUT IN JAIL
AND PERMITTED TO SLEEP. 

THAT AFTERNOON, A FULL DAY AFTER HIS ARREST, HE WAS TAKEN TO THE
OFFICE OF THE LOS ANGELES COUNTY DISTRICT ATTORNEY TO ORALLY REPEAT THE
WRITTEN CONFESSION.  PETITIONER BALKED AT DOING SO AND AGAIN ASKED THAT
HIS ATTORNEY BE CALLED.  THEREUPON THE DISTRICT ATTORNEY PLACED THE
CALL FOR HIM AND LISTENED TO THE CONVERSATION WHILE PETITIONER TALKED
ON AN EXTENSION PHONE WITH THE ATTORNEY.  NEITHER PETITIONER NOR HIS
ATTORNEY WAS AWARE THAT A TAPE RECORDING WAS BEING MADE OF EVERYTHING
THAT TRANSPIRED IN THE OFFICE.  THE DISTRICT ATTORNEY INTERRUPTED AT
ONE POINT TO DENY THAT PETITIONER WAS FORCED TO ANSWER POLICE
QUESTIONS, AND LATER TO ADVISE THAT THE MOST CONVENIENT TIME FOR THE
ATTORNEY TO SEE PETITIONER WOULD BE AT 7 P.M. BACK AT THE WEST LOS
ANGELES POLICE STATION.  AFTER THE PHONE CALL, PETITIONER WAS RETURNED
TO JAIL TO MEET HIS ATTORNEY THAT EVENING.  FROM THAT TIME FORWARD,
THROUGH BOTH ARRAIGNMENT AND TRIAL, HE WAS REPRESENTED BY HIS OWN
COUNSEL. 

IN THE 14 HOURS BETWEEN HIS ARREST AND CONFESSION, PETITIONER WAS
GIVEN COFFEE AND ALLOWED TO SMOKE WHENEVER HE LIKED.  HE ALSO WAS GIVEN
MILK AND A SANDWICH A FEW HOURS AFTER HIS ARREST.  BEFORE BEING
TRANSFERRED TO THE WEST LOS ANGELES POLICE STATION HE WAS ADVISED BY A
POLICE LIEUTENANT, "YOU DON'T HAVE TO SAY ANYTHING THAT YOU DON'T WANT
TO," AND HE IN FACT REFUSED TO ANSWER MANY QUESTIONS BOTH BEFORE AND
AFTER THE TRANSFER.  AT SUCH TIMES HE SIMPLY STATED HE "WOULD RATHER
NOT ANSWER OR RATHER NOT MAKE A STATEMENT ABOUT THAT." 

THE BARE FACT OF POLICE "DETENTION AND POLICE EXAMINATION IN PRIVATE
OF ONE IN OFFICIAL STATE CUSTODY" DOES NOT RENDER INVOLUNTARY A
CONFESSION BY THE ONE SO DETAINED.  BROWN V. ALLEN, 344 U.S. 443, 476
(1953).  NEITHER DOES AN ADMONITION BY THE POLICE TO TELL THE TRUTH,
SPARF V. UNITED STATES, 156 U.S. 51, 55-56 (1895), NOR THE FAILURE OF
STATE AUTHORITIES TO COMPLY WITH LOCAL STATUTES REQUIRING THAT AN
ACCUSED PROMPTLY BE BROUGHT BEFORE A MAGISTRATE.  (FN2)  FIKES V.
ALABAMA, 352 U.S. 191 (1957). 

PETITIONER'S CLAIM OF COERCION, THEN, DEPENDS ALMOST ENTIRELY ON
DENIAL OF HIS REQUEST TO CONTACT COUNSEL.  (FN3)  THIS COURT HAS NOT
PREVIOUSLY HAD OCCASION TO DETERMINE THE CHARACTER OF A CONFESSION
OBTAINED AFTER SUCH A DENIAL.  BUT WE HAVE HELD THAT CONFESSIONS MADE
BY INDIGENT DEFENDANTS PRIOR TO STATE APPOINTMENT OF COUNSEL ARE NOT
THEREBY RENDERED INVOLUNTARY, EVEN IN PROSECUTIONS WHERE CONVICTION
WITHOUT COUNSEL WOULD VIOLATE DUE PROCESS UNDER THE FOURTEENTH
AMENDMENT.  BROWN V. ALLEN, 344 U.S. 443, 474-476 (1953); STROBLE V.
CALIFORNIA, 343 U.S. 181, 196-198 (1952); GALLEGOS V. NEBRASKA, 342
U.S. 55, 64-68 (1951).  TO BE SURE, COERCION SEEMS MORE LIKELY TO
RESULT FROM STATE DENIAL OF A SPECIFIC REQUEST FOR OPPORTUNITY TO
ENGAGE COUNSEL THAN IT DOES FROM STATE FAILURE TO APPOINT COUNSEL
IMMEDIATELY UPON ARREST.  THAT GREATER POSSIBILITY, HOWEVER, IS NOT
DECISIVE.  IT IS NEGATED HERE BY PETITIONER'S AGE, INTELLIGENCE, AND
EDUCATION.  WHILE IN LAW SCHOOL HE HAD STUDIED CRIMINAL LAW; INDEED,
WHEN ASKED TO TAKE THE LIE DETECTOR TEST, HE INFORMED THE OPERATOR THAT
THE RESULTS OF SUCH A TEST WOULD NOT BE ADMISSIBLE AT TRIAL ABSENT A
STIPULATION BY THE PARTIES.  SUPPLEMENTING THAT BACKGROUND IS THE
POLICE STATEMENT TO PETITIONER WELL BEFORE HIS CONFESSION THAT HE DID
NOT HAVE TO ANSWER QUESTIONS.  MOREOVER, THE MANNER OF HIS REFUSALS TO
ANSWER INDICATES FULL AWARENESS OF THE RIGHT TO BE SILENT.  ON THIS
RECORD WE ARE UNABLE TO SAY THAT PETITIONER'S CONFESSION WAS ANYTHING
OTHER THAN VOLUNTARY. 

WE TURN NOW TO THE CONTENTION THAT EVEN IF THE CONFESSION BE
VOLUNTARY, ITS USE VIOLATES DUE PROCESS BECAUSE IT WAS OBTAINED AFTER
DENIAL OF PETITIONER'S REQUEST TO CONTACT HIS ATTORNEY.  PETITIONER
REACHES THIS POSITION BY REASONING FIRST THAT HE HAS BEEN DENIED A DUE
PROCESS RIGHT TO REPRESENTATION AND ADVICE FROM HIS ATTORNEY, (FN4) AND
SECONDLY THAT THE USE OF ANY CONFESSION OBTAINED FROM HIM DURING THE
TIME OF SUCH A DENIAL WOULD ITSELF BE BARRED BY THE DUE PROCESS CLAUSE,
EVEN THOUGH FREELY MADE.  WE THINK PETITIONER FAILS TO SUSTAIN THE
FIRST POINT, AND THEREFORE WE DO NOT REACH THE SECOND. 

THE RIGHT OF AN ACCUSED TO COUNSEL FOR HIS DEFENSE, THOUGH NOT FIRMLY
FIXED IN OUR COMMON-LAW HERITAGE, IS OF SIGNIFICANT IMPORTANCE TO THE
PRESERVATION OF LIBERTY IN THIS COUNTRY.  SEE 1 COOLEY'S CONSTITUTIONAL
LIMITATIONS (8TH ED. 1927) 696-700; 2 STORY ON THE CONSTITUTION (4TH
ED. 1873) SEC. 1794.  THAT RIGHT, SECURED IN STATE PROSECUTIONS BY THE
FOURTEENTH AMENDMENT GUARANTY OF DUE PROCESS, INCLUDES NOT ONLY THE
RIGHT TO HAVE AN ATTORNEY APPOINTED BY THE STATE IN CERTAIN CASES, BUT
ALSO THE RIGHT OF AN ACCUSED TO "A FAIR OPPORTUNITY TO SECURE COUNSEL
OF HIS OWN CHOICE."   POWELL V. ALABAMA, 287 U.S. 45, 53 (1932);
CHANDLER V. FRETAG, 348 U.S. 3 (1954). 

UNDER THESE PRINCIPLES, STATE REFUSAL OF A REQUEST TO ENGAGE COUNSEL
VIOLATES DUE PROCESS NOT ONLY IF THE ACCUSED IS DEPRIVED OF COUNSEL AT
TRIAL ON THE MERITS, CHANDLER V. FRETAG, SUPRA, BUT ALSO IF HE IS
DEPRIVED OF COUNSEL FOR ANY PART OF THE PRETRIAL PROCEEDINGS, PROVIDED
THAT HE IS SO PREJUDICED THEREBY AS TO INFECT HIS SUBSEQUENT TRIAL WITH
AN ABSENCE OF "THAT FUNDAMENTAL FAIRNESS ESSENTIAL TO THE VERY CONCEPT
OF JUSTICE."  LISENBA V. CALIFORNIA, 314 U.S. 219, 236 (1941).  CF.
MOORE V. MICHIGAN, 355 U.S. 155, 160 (1957).  THE LATTER DETERMINATION
NECESSARILY DEPENDS UPON ALL THE CIRCUMSTANCES OF THE CASE. 

IN HOUSE V. MAYO, 324 U.S. 42 (1945), AN UNEDUCATED MAN IN HIS
TWENTIES, A STRANGER TO THE AREA, WAS BROUGHT BEFORE A COURT TO BE
SENTENCED ON TWO CONVICTIONS PREVIOUSLY RETURNED AGAINST HIM.  HE WAS
THERE PRESENTED FOR THE FIRST TIME WITH A BURGLARY INFORMATION FILED BY
THE STATE, ASKED FOR AND WAS DENIED OPPORTUNITY TO ENGAGE COUNSEL, AND
FINALLY PLEADED GUILTY TO THE INFORMATION, THEREBY OBVIATING ANY
NECESSITY FOR TRIAL OF THE CHARGE ON THE MERITS.  WE HELD THAT A DUE
PROCESS RIGHT TO COUNSEL WAS DENIED. 

IN CONTRAST, THE SUM TOTAL OF THE CIRCUMSTANCES HERE DURING THE TIME
PETITIONER WAS WITHOUT COUNSEL IS A VOLUNTARY CONFESSION BY A COLLEGE
EDUCATED MAN WITH LAW SCHOOL TRAINING WHO KNEW OF HIS RIGHT TO KEEP
SILENT.  SUCH FACTS, WHILE PERHAPS A VIOLATION OF CALIFORNIA LAW, (FN5)
DO NOT APPROACH THE PREJUDICIAL IMPACT IN HOUSE V. MAYO, SUPRA, AND DO
NOT SHOW PETITIONER TO HAVE BEEN SO "TAKEN ADVANTAGE OF," TOWNSEND V.
BURKE, 334 U.S. 736, 739 (1948), AS TO VIOLATE DUE PROCESS OF LAW. 

PETITIONER, HOWEVER, CONTENDS THAT A DIFFERENT RULE SHOULD DETERMINE
WHETHER THERE HAS BEEN A VIOLATION OF RIGHT TO COUNSEL.  HE WOULD HAVE
EVERY STATE DENIAL OF A REQUEST TO CONTACT COUNSEL BE AN INFRINGEMENT
OF THE CONSTITUTIONAL RIGHT WITHOUT REGARD TO THE CIRCUMSTANCES OF THE
CASE.  IN THE ABSENCE OF ANY CONFESSION, PLEA OR WAIVER - OR OTHER
EVENT PREJUDICIAL TO THE ACCUSED - SUCH A DOCTRINE WOULD CREATE A
COMPLETE ANOMALY, SINCE NOTHING WOULD REMAIN THAT COULD BE CORRECTED ON
NEW TRIAL.  REFUSAL BY STATE AUTHORITIES OF THE REQUEST TO CONTACT
COUNSEL NECESSARILY WOULD THEN BE AN ABSOLUTE BAR TO CONVICTION.  ON
THE OTHER HAND, WHERE AN EVENT HAS OCCURRED WHILE THE ACCUSED WAS
WITHOUT HIS COUNSEL WHICH FAIRLY PROMISES TO ADVERSELY AFFECT HIS
CHANCES, THE DOCTRINE SUGGESTED BY PETITIONER WOULD HAVE A LESSER BUT
STILL DEVASTATING EFFECT ON ENFORCEMENT OF CRIMINAL LAW, FOR IT WOULD
EFFECTIVELY PRECLUDE POLICE QUESTIONING - FAIR AS WELL AS UNFAIR -
UNTIL THE ACCUSED WAS AFFORDED OPPORTUNITY TO CALL HIS ATTORNEY.  DUE
PROCESS, A CONCEPT "LESS RIGID AND MORE FLUID THAN THOSE ENVISAGED IN
OTHER SPECIFIC AND PARTICULAR PROVISIONS OF THE BILL OF RIGHTS," BETTS
V. BRADY, 316 U.S. 455, 462 (1942), DEMANDS NO SUCH RULE.  (FN6)
AFFIRMED. 

FN1  THE GRANT OF CERTIORARI WAS LIMITED TO TWO QUESTIONS: 

"1.  WAS THE DEFENDANT DENIED DUE PROCESS OF LAW BY THE REFUSAL OF
THE INVESTIGATION OFFICERS TO ALLOW HIM TO CONSULT WITH AN ATTORNEY
UPON DEMAND BEING MADE TO DO SO WHILE HE WAS IN CUSTODY? 

"2.  WAS THE DEFENDANT DENIED DUE PROCESS OF LAW BY THE ADMISSION
INTO EVIDENCE OF A CONFESSION WHICH WAS TAKEN FROM HIM WHILE IN CUSTODY
AND AFTER HE HAD BEEN IN SUCH CUSTODY FOR FOURTEEN HOURS AND HAD NOT
BEEN ALLOWED TO CONSULT WITH HIS ATTORNEY?" 

FN2  SECTION 849 OF THE CALIFORNIA PENAL CODE PROVIDES THAT A PERSON
ARRESTED WITHOUT A WARRANT MUST BE BROUGHT BEFORE THE NEAREST OR MOST
ACCESSIBLE MAGISTRATE IN THE COUNTY OF ARREST "WITHOUT UNNECESSARY
DELAY."  CAL. PENAL CODE, 1956, SEC. 849.    FN3  EVEN IF WITHIN THE
SCOPE OF THE LIMITED GRANT OF CERTIORARI, CLAIMS OF PHYSICAL VIOLENCE -
"THIRD DEGREE" METHODS - WERE DENIED BY WITNESSES FOR THE STATE, AND
HENCE ARE NOT PART OF THE UNDISPUTED PORTIONS OF THE RECORD WHICH WE
CONSIDER HERE.  THE AMBIGUOUS REPLY BY ONE POLICE OFFICER, "I DON'T
THINK WE HURT YOU," IN RESPONSE TO PETITIONER'S ASSERTION IN THE
DISTRICT ATTORNEY'S OFFICE THAT THE OFFICER STRUCK HIM, CANNOT ALTER
THE CONTRADICTED STATE OF THE EVIDENCE WHEN THE SAME OFFICER
CATEGORICALLY DENIED THE CLAIM ON CROSS-EXAMINATION AT THE TRIAL. 

FN4  AT TIMES PETITIONER APPEARS TO URGE "A RULE" BARRING USE OF A
VOLUNTARY CONFESSION OBTAINED AFTER STATE DENIAL OF A REQUEST TO
CONTACT COUNSEL REGARDLESS OF WHETHER ANY VIOLATION OF A DUE PROCESS
RIGHT TO COUNSEL OCCURRED.  THAT CONTENTION IS SIMPLY AN APPEAL TO THE
SUPERVISORY POWER OF THIS COURT OVER THE ADMINISTRATION OF JUSTICE IN
THE FEDERAL COURTS.  SEE MCNABB V. UNITED STATES, 318 U.S. 332 (1943),
WHICH, SIGNIFICANTLY ENOUGH, PETITIONER CITES.  THE SHORT ANSWER TO
SUCH A CONTENTION HERE IS THAT THIS CONVICTION WAS HAD IN A STATE, NOT
A FEDERAL, COURT. 

FN5  SECTION 825 OF THE CALIFORNIA PENAL CODE PROVIDES THAT AFTER AN
ARREST, AN ATTORNEY "MAY AT THE REQUEST OF THE PRISONER OR ANY RELATIVE
OF SUCH PRISONER, VISIT THE PERSON SO ARRESTED."  ANY OFFICER IN CHARGE
OF THE PRISONER WHO WILFULLY REFUSES TO LET THE ATTORNEY SEE THE
PRISONER IS MADE GUILTY OF A MISDEMEANOR.  CAL. PENAL CODE, 1956, SEC.
825. 

FN6  IT IS SUGGESTED THAT THIS DECISION EXTENDS THE RULE OF BETTS V.
BRADY, 316 U.S. 455 (1942), TO A CAPITAL CASE, THEREBY OVERRULING, I
SHOULD SUPPOSE, POWELL V. ALABAMA, 287 U.S. 45, AND RELATED CASES.  BUT
THOSE DECISIONS INVOLVE ANOTHER PROBLEM, TRIAL AND CONVICTION OF THE
ACCUSED WITHOUT COUNSEL AFTER STATE REFUSAL TO APPOINT AN ATTORNEY FOR
HIM.  WHAT DUE PROCESS REQUIRES IN ONE SITUATION MAY NOT BE REQUIRED IN
ANOTHER, AND THIS, OF COURSE, BECAUSE THE LEAST CHANGE OF CIRCUMSTANCES
MAY PROVIDE OR ELIMINATE FUNDAMENTAL FAIRNESS.  THE RULING HERE THAT
DUE PROCESS DOES NOT ALWAYS REQUIRE IMMEDIATE HONORING OF A REQUEST TO
OBTAIN ONE'S OWN COUNSEL IN THE HOURS AFTER ARREST, HARDLY MEANS THAT
THE SAME CONCEPT OF FUNDAMENTAL FAIRNESS DOES NOT REQUIRE STATE
APPOINTMENT OF COUNSEL BEFORE AN ACCUSED IS PUT TO TRIAL, CONVICTED AND
SENTENCED TO DEATH. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

WHEN PETITIONER WAS FIRST ARRESTED, AND BEFORE ANY REAL INTERROGATION
TOOK PLACE, HE ASKED THAT HIS ATTORNEY BE PRESENT.  "I HAD NO OBJECTION
TO TALKING WITH THEM ABOUT WHATEVER THEY HAD TO TALK ABOUT, BUT  ...  I
WANTED COUNSEL WITH ME  ...  .  I WANTED AN ATTORNEY WITH ME BEFORE I
WOULD TALK WITH THEM." 

THAT WAS PETITIONER'S TESTIMONY; AND IT IS VERIFIED BY THE TESTIMONY
OF SERGEANT GOTCH OF THE POLICE. 

"A.  I STATED TO HIM THAT AFTER OUR INVESTIGATION WAS CONCLUDED HE
COULD CALL AN ATTORNEY, AND IF HE DIDN'T HAVE FUNDS TO HIRE AN
ATTORNEY, WHEN HE WENT TO COURT A PUBLIC DEFENDER WOULD BE ASSIGNED TO
HANDLE HIS CASE. 

"HE THEN STATED THAT HE HAD A FRIEND WHO HAD BEEN AN INSTRUCTOR AT
PEPPERDINE COLLEGE THAT WOULD PROBABLY HANDLE THE CASE FOR HIM.  I
ASKED HIM WHO THE NAME WAS, AND HE SAID IT WAS A MAN BY THE NAME OF
SIMPSON, WHO LIVED IN LONG BEACH. 

"Q.  HE ASKED YOU IF HE COULD CALL AN ATTORNEY AT THAT TIME, AND YOU
TOLD HIM THAT HE COULD CALL AFTER YOUR INVESTIGATION WAS COMPLETED, IS
THAT RIGHT? 

"A.  I TOLD HIM, AFTER I WAS THROUGH WITH THE INVESTIGATION, HE COULD
MAKE A CALL." 

THIS DEMAND FOR AN ATTORNEY WAS MADE OVER AND AGAIN PRIOR TO THE TIME
A CONFESSION WAS EXTRACTED FROM THE ACCUSED.  ITS DENIAL WAS IN MY VIEW
A DENIAL OF THAT DUE PROCESS OF LAW GUARANTEED THE CITIZEN BY THE
FOURTEENTH AMENDMENT. 

THE COURT FINDS NO PREJUDICE FROM THE DENIAL OF THE RIGHT TO CONSULT
COUNSEL; AND IT BASES THAT FINDING ON THE AGE, INTELLIGENCE, AND
EDUCATION OF PETITIONER.  BUT IT WAS SAID IN GLASSER V. UNITED STATES,
315 U.S. 60, 76, "THE RIGHT TO HAVE THE ASSISTANCE OF COUNSEL IS TOO
FUNDAMENTAL AND ABSOLUTE TO ALLOW COURTS TO INDULGE IN NICE
CALCULATIONS AS TO THE AMOUNT OF PREJUDICE ARISING FROM ITS DENIAL." 
THAT WAS A FEDERAL PROSECUTION.  BUT WHAT IS TRUE OF THE NEED FOR
COUNSEL IN A FEDERAL CASE IS EQUALLY TRUE IN A STATE CASE. 

BETTS V. BRADY, 316 U.S. 455, HELD THAT IN A STATE CRIMINAL TRIAL THE
REQUEST OF THE ACCUSED FOR COUNSEL CAN BE DENIED AND A JUDGMENT OF
CONVICTION SUSTAINED AS NOT IN VIOLATION OF DUE PROCESS, WHERE THE
OFFENSE IS NOT A CAPITAL ONE, CF. WILLIAMS V. KAISER, 323 U.S. 471, AND
THE COURT ON REVIEW DETERMINES THERE WAS NO FUNDAMENTAL UNFAIRNESS
RESULTING FROM THE DENIAL OF COUNSEL.  THE RULE OF BETTS V. BRADY,
WHICH NEVER APPLIED TO A CAPITAL CASE, SEE POWELL V. ALABAMA, 287 U.S.
45, IS NOW MADE TO DO SO.  ASSUMING THAT BETTS V. BRADY WAS PROPERLY
DECIDED, THERE IS NO BASIS IN REASON FOR EXTENDING IT TO THE DENIAL OF
A REQUEST FOR COUNSEL WHEN THE ACCUSED IS ARRESTED ON A CAPITAL
CHARGE. 

THE COURT PROPERLY CONCEDES THAT THE RIGHT TO COUNSEL EXTENDS TO
PRETRIAL PROCEEDINGS AS WELL AS TO THE TRIAL ITSELF.  THE NEED IS AS
GREAT THEN AS AT ANY TIME.  THE RIGHT TO HAVE COUNSEL AT THE PRETRIAL
STAGE IS OFTEN NECESSARY TO GIVE MEANING AND PROTECTION TO THE RIGHT TO
BE HEARD AT THE TRIAL ITSELF.  SEE CHANDLER V. FRETAG, 348 U.S. 3, 10. 
IT MAY ALSO BE NECESSARY AS A RESTRAINT ON THE COERCIVE POWER OF THE
POLICE.  THE PATTERN OF THE THIRD DEGREE RUNS THROUGH OUR CASES:  A
LONE SUSPECT UNREPRESENTED BY COUNSEL AGAINST WHOM THE FULL COERCIVE
FORCE OF A SECRET INQUISITION IS BROUGHT TO BEAR.  SEE LISENBA V.
CALIFORNIA, 314 U.S. 219; ASHCRAFT V. TENNESSEE, 322 U.S. 143; HALEY V.
OHIO, 332 U.S. 596; WATTS V. INDIANA, 338 U.S. 49; LEYRA V. DENNO, 347
U.S. 556.  THE THIRD DEGREE FLOURISHES ONLY IN SECRECY.  ONE WHO FEELS
THE NEED OF A LAWYER AND ASKS FOR ONE IS ASKING FOR SOME PROTECTION
WHICH THE LAW CAN GIVE HIM AGAINST A COERCED CONFESSION.  NO MATTER
WHAT CARE IS TAKEN INNOCENT PEOPLE ARE CONVICTED OF CRIMES THEY DID NOT
COMMIT, SEE BORCHARD, CONVICTING THE INNOCENT (1932); FRANK AND FRANK,
NOT GUILTY (1957).  WE SHOULD NOT LOWER THE BARRIERS AND DENY THE
ACCUSED ANY PROCEDURAL SAFEGUARD AGAINST COERCIVE POLICE PRACTICES. 
(FN1)  THE TRIAL OF THE ISSUE OF COERCION IS SELDOM HELPFUL.  LAW
OFFICERS USUALLY TESTIFY ONE WAY, THE ACCUSED ANOTHER.  THE CITIZEN WHO
HAS BEEN THE VICTIM OF THESE SECRET INQUISITIONS HAS LITTLE CHANCE TO
PROVE COERCION.  THE MISCHIEF AND ABUSE OF THE THIRD DEGREE WILL
CONTINUE AS LONG AS AN ACCUSED CAN BE DENIED THE RIGHT TO COUNSEL AT
THIS THE MOST CRITICAL PERIOD OF HIS ORDEAL.  (FN2)  FOR WHAT TAKES
PLACE IN THE SECRET CONFINES OF THE POLICE STATION MAY BE MORE CRITICAL
THAN WHAT TAKES PLACE AT THE TRIAL. 

"IF AT ANY TIME, FROM THE TIME OF HIS ARREST TO FINAL DETERMINATION
OF HIS GUILT OR INNOCENCE, AN ACCUSED REALLY NEEDS THE HELP OF AN
ATTORNEY, IT IS IN THE PRE-TRIAL PERIOD  ...  .  INDEED, THE PRE-TRIAL
PERIOD IS SO FULL OF HAZARDS FOR THE ACCUSED THAT, IF UNAIDED BY
COMPETENT LEGAL ADVICE, HE MAY LOSE ANY LEGITIMATE DEFENSE HE MAY HAVE
LONG BEFORE HE IS ARRAIGNED AND PUT ON TRIAL."  NOTE, CRIMINAL
PROCEDURE - RIGHT TO COUNSEL PRIOR TO TRIAL, 44 KY. L.J. 103-104. 

OR AS STATED BY A COMMITTEE HEADED BY PROF. ZECHARIAH CHAFEE, "A
PERSON ACCUSED OF CRIME NEEDS A LAWYER RIGHT AFTER HIS ARREST PROBABLY
MORE THAN AT ANY OTHER TIME."  (FN3) 

THE COURT SPEAKS OF THE EDUCATION OF THIS PETITIONER AND HIS ABILITY
TO TAKE CARE OF HIMSELF.  IN AN OPINION WRITTEN BY MR. JUSTICE
SUTHERLAND THE COURT SAID, "EVEN THE INTELLIGENT AND EDUCATED LAYMAN
HAS SMALL AND SOMETIMES NO SKILL IN THE SCIENCE OF LAW  ...  .  HE
REQUIRES THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE PROCEEDINGS
AGAINST HIM."  POWELL V. ALABAMA, 287 U.S. 45, 69.  MR. JUSTICE
SUTHERLAND SPOKE OF THE TRIAL ITSELF.  BUT WHAT IS TRUE OF THE TRIAL IS
TRUE OF THE PREPARATION FOR TRIAL AND OF THE PERIOD COMMENCING WITH THE
ARREST OF THE ACCUSED.  NO MATTER HOW WELL EDUCATED AND HOW WELL
TRAINED IN THE LAW AN ACCUSED MAY BE, HE IS SORELY IN NEED OF LEGAL
ADVICE ONCE HE IS ARRESTED FOR AN OFFENSE THAT MAY EXACT HIS LIFE.  THE
INNOCENT AS WELL AS THE GUILTY MAY BE CAUGHT IN A WEB OF CIRCUMSTANTIAL
EVIDENCE THAT IS DIFFICULT TO BREAK.  A MAN MAY BE GUILTY OF
INDISCRETIONS BUT NOT OF THE CRIME.  HE MAY BE IMPLICATED BY AMBIGUOUS
CIRCUMSTANCES DIFFICULT TO EXPLAIN AWAY.  HE DESPERATELY NEEDS A LAWYER
TO HELP EXTRICATE HIM IF HE'S INNOCENT.  HE HAS THE RIGHT TO RECEIVE
THE BENEFIT OF THE ADVICE OF HIS OWN COUNSEL AT THE TRIAL, AS WE HELD
IN CHANDLER V. FRETAG, 348 U.S. 3, 9.  THAT SAME RIGHT SHOULD EXTEND TO
THE PRETRIAL STAGE. 

THE NEED OF A LAWYER IN THE PRETRIAL INVESTIGATION, IF THE
CONSTITUTIONAL RIGHTS OF THE ACCUSED ARE TO BE PRESERVED, WAS STATED BY
MR. JUSTICE BLACK, DISSENTING, IN IN RE GROBAN, 352 U.S. 330, 340-343: 

"THE WITNESS HAS NO EFFECTIVE WAY TO CHALLENGE HIS INTERROGATOR'S
TESTIMONY AS TO WHAT WAS SAID AND DONE AT THE SECRET INQUISITION.  THE
OFFICER'S VERSION FREQUENTLY MAY REFLECT AN INACCURATE UNDERSTANDING OF
AN ACCUSED'S STATEMENTS OR, ON OCCASION, MAY BE DELIBERATELY DISTORTED
OR FALSIFIED.  WHILE THE ACCUSED MAY PROTEST AGAINST THESE
MISREPRESENTATIONS, HIS PROTESTATIONS WILL NORMALLY BE IN VAIN.  THIS
IS PARTICULARLY TRUE WHEN THE OFFICER IS ACCOMPANIED BY SEVERAL OF HIS
ASSISTANTS AND THEY ALL VOUCH FOR HIS STORY.  BUT WHEN THE PUBLIC, OR
EVEN THE SUSPECT'S COUNSEL, IS PRESENT THE HAZARDS TO THE SUSPECT FROM
THE OFFICER'S MISUNDERSTANDING OR TWISTING OF HIS STATEMENTS OR CONDUCT
ARE GREATLY REDUCED. 

"THE PRESENCE OF LEGAL COUNSEL OR ANY PERSON WHO IS NOT AN EXECUTIVE
OFFICER BENT ON ENFORCING THE LAW PROVIDES STILL ANOTHER PROTECTION TO
THE WITNESS.  BEHIND CLOSED DOORS HE CAN BE COERCED, TRICKED OR
CONFUSED BY OFFICERS INTO MAKING STATEMENTS WHICH MAY BE UNTRUE OR MAY
HIDE THE TRUTH BY CREATING MISLEADING IMPRESSIONS.  WHILE THE WITNESS
IS IN THE CUSTODY OF THE INTERROGATORS, AS A PRACTICAL MATTER, HE IS
SUBJECT TO THEIR UNCONTROLLED WILL  ...  .  NOTHING WOULD BE BETTER
CALCULATED TO PREVENT MISUSE OF OFFICIAL POWER IN DEALING WITH A
WITNESS OR SUSPECT THAN THE SCRUTINY OF HIS LAWYER OR FRIENDS OR EVEN
OF DISINTERESTED BYSTANDERS." 

THE DEMANDS OF OUR CIVILIZATION EXPRESSED IN THE DUE PROCESS CLAUSE
REQUIRE THAT THE ACCUSED WHO WANTS A COUNSEL SHOULD HAVE ONE AT ANY
TIME AFTER THE MOMENT OF ARREST.  (FN4) 

FN1  THE USE OF TECHNIQUES THAT MAKE MEN ADMIT CRIMES THEY DID NOT
COMMIT AND EMBRACE IDEAS THEY OPPOSE IS TOLD IN COMMUNIST
INTERROGATION, INDOCTRINATION AND EXPLOITATION OF AMERICAN MILITARY AND
CIVILIAN PRISONERS, S. REP. NO. 2832, 84TH CONG., 2D SESS. 

PROF. SAM BASS WARNER WROTE IN HOW CAN THE THIRD DEGREE BE
ELIMINATED?  1 BILL OF RIGHTS REV. 24, 25 (1940):  "EVERYWHERE THE
FORMULA FOR SUCCESSFUL DETECTIVE WORK IS THAT LAID DOWN BY FORMER
CAPTAIN FIASCHETTI OF THE NEW YORK CITY POLICE:  'YOU GET A BIT OF
INFORMATION, AND THEN YOU GRAB THE SUSPECT AND BREAK HIM DOWN.  THAT IS
HOW DETECTIVE WORK IS DONE - A GENERAL FORMULA.'" 

SEE REPORT OF COMMITTEE ON LAWLESS ENFORCEMENT OF LAW, AM. BAR ASSN.,
1 AM. J. POLICE SCI.  575; THE THIRD DEGREE, 4 REPORT TO THE NATIONAL
COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT (1931) 13; THE REPORT OF
THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS (1947) 25 ET SEQ. 

FN2  DEAN ROSCOE POUND WROTE IN 1934 AS FOLLOWS ABOUT THIS PROBLEM:
"IN THE UNITED STATES THE FEELING OF POLICE AND PROSECUTORS THAT THEY
OUGHT TO BE ABLE TO INTERROGATE SUSPECTED PERSONS LONG AGO LED TO A
SYSTEMATIC DEVELOPMENT OF EXTRA-LEGAL OR DOWNRIGHT ILLEGAL EXAMINATIONS
BY OFFICIALS, WITH EVERY EXTERNAL APPEARANCE OF LEGALITY.  THESE
EXAMINATIONS HAVE BECOME SO MUCH A MATTER OF COURSE THAT WE MAY READ IN
EVERY MORNING PAPER HOW POLICE OR PROSECUTOR EXAMINED (THE WORD USUALLY
CHOSEN IS 'GRILLED') SO AND SO FOR ANYWHERE FROM TEN TO FORTY-EIGHT OR
MORE CONSECUTIVE HOURS, GOING AT HIM IN RELAYS TO WEAR HIM OUT AND
BREAK HIM DOWN.  THEY ARE NOW TAKEN TO BE THE ESTABLISHED PRACTICE. 
PROSECUTORS OFTEN CONDUCT THEM WITH A PRETENCE OF AUTHORITY WHEN THOSE
SUBJECTED TO THEM ARE IGNORANT, UNADVISED AS TO THEIR RIGHTS,
INSIGNIFICANT, OR WITHOUT MEANS OF EMPLOYING COUNSEL.  INDEED, SO BOLD
HAVE THOSE WHO RESORT TO THOSE PRACTICES BECOME, THAT WE NOW READ IN
THE NEWSPAPERS HOW THIS MAN OR THAT WAS HELD 'INCOMMUNICADO' IN A
POLICE STATION OR JAIL WHILE THE GRILLING PROCESS WAS GOING ON. 

     *        *         *         *         * 

"NO AMOUNT OF THUNDERING AGAINST THE THIRD DEGREE AND ITS DERIVATIVES
AND ANALOGUES WILL ACHIEVE ANYTHING.  THE TEMPER OF THE PUBLIC WILL NOT
PERMIT OF STRENGTHENING THE CONSTITUTIONAL SAFEGUARDS OF THE ACCUSED. 
FOR SOME TIME TO COME THE TENDENCY IS LIKELY TO BE IN THE OPPOSITE
DIRECTION.  INDEED, A FEELING THAT THE PUBLIC ARE WITH THEM IS LARGELY
BEHIND THE BOLDNESS WITH WHICH HIGH-HANDED, SECRET, EXTRA-LEGAL
INTERROGATIONS OF PERSONS HELD INCOMMUNICADO ARE CONSTANTLY CARRIED
ON. 

"MY PROPOSITION IS THAT THE REMEDY FOR THE THIRD DEGREE AND ITS
DERIVATIVES IS TO SATISFY THE REASONABLE DEMANDS OF THE POLICE AND THE
PROSECUTORS FOR AN INTERROGATION OF SUSPECTED PERSONS AND THUS DO AWAY
WITH THE EXCUSE FOR EXTRA-LEGAL QUESTIONINGS. 

"I SUBMIT THAT THERE SHOULD BE EXPRESS PROVISION FOR A LEGAL
EXAMINATION OF SUSPECTED OR ACCUSED PERSONS BEFORE A MAGISTRATE; THAT
THOSE TO BE EXAMINED SHOULD BE ALLOWED TO HAVE COUNSEL PRESENT TO
SAFEGUARD THEIR RIGHTS; THAT PROVISION SHOULD BE MADE FOR TAKING DOWN
THE EVIDENCE SO AS TO GUARANTEE ACCURACY.  AS THINGS ARE, IT IS NOT THE
LEAST OF THE ABUSES OF THE SYSTEM OF EXTRA-LEGAL INTERROGATION THAT
THERE IS A CONSTANT CONFLICT OF EVIDENCE AS TO WHAT THE ACCUSED SAID
AND AS TO THE CIRCUMSTANCES UNDER WHICH HE SAID OR WAS COERCED INTO
SAYING IT."  24 J. CRIM. L.&C. 1014, 1016, 1017.    AS RECENTLY STATED
BY T.B. SMITH, A DISTINGUISHED SCOTTISH LAWYER: 

"THE OPPORTUNITIES FOR EXERTING PRESSURE ON A SUSPECT TO CONFESS ARE
GREATEST WHEN THERE IS NO JUDICIAL SUPERVISION, NO LEGAL REPRESENTATION
AND NO PUBLIC SCRUTINY.  IF AN ACCUSED AT HIS TRIAL SEEKS TO RETRACT A
CONFESSION ALLEGEDLY EXTORTED BY THIRD-DEGREE METHODS, HIS WORD WILL
STAND ALONE AGAINST SEVERAL POLICE WITNESSES WHO MAY BE EXPECTED TO
DENY IMPROPER PRESSURE.  IT IS WELL KNOWN THAT IN THE TOTALITARIAN
STATES EXTRA-JUDICIAL PRESSURE BY BRAIN-WASHING CAN EVENTUALLY CONVINCE
EVEN THE ACCUSED THAT HE HAS COMMITTED THE MOST IMPROBABLE OFFENSES,
BUT WHEN A CONFESSION HAS BEEN EXTORTED BY LESS THOROUGH THIRD-DEGREE
METHODS IT IS LIKELY TO BE RETRACTED AT THE TRIAL.  THE ACCUSED MAY,
NEVERTHELESS, BY THEN HAVE DAMAGED HIS POSITION IRREPARABLY."  32
TULANE L. REV. 349, 354. 

FN3  SEE CHAFEE, DOCUMENTS ON FUNDAMENTAL HUMAN RIGHTS, PAMPHLETS 1-3
(1951-1952), P. 541. 

THE SCOTS VIEW WAS RECENTLY STATED BY THE LORD JUSTICE GENERAL IN
CHALMERS V. H.M. ADVOCATE, 1954 SESS. CAS. 66, 78: 

"THE THEORY OF OUR LAW IS THAT AT THE STAGE OF INITIAL INVESTIGATION
THE POLICE MAY QUESTION ANYONE WITH A VIEW TO ACQUIRING INFORMATION
WHICH MAY LEAD TO THE DETECTION OF THE CRIMINAL; BUT THAT, WHEN THE
STAGE HAS BEEN REACHED AT WHICH SUSPICION, OR MORE THAN SUSPICION, HAS
IN THEIR VIEW CENTRED UPON SOME PERSON AS THE LIKELY PERPETRATOR OF THE
CRIME, FURTHER INTERROGATION OF THAT PERSON BECOMES VERY DANGEROUS,
AND, IF CARRIED TOO FAR, E.G., TO THE POINT OF EXTRACTING A CONFESSION
BY WHAT AMOUNTS TO CROSS-EXAMINATION, THE EVIDENCE OF THAT CONFESSION
WILL ALMOST CERTAINLY BE EXCLUDED.  ONCE THE ACCUSED HAS BEEN
APPREHENDED AND CHARGED HE HAS THE STATUTORY RIGHT TO A PRIVATE
INTERVIEW WITH A SOLICITOR AND TO BE BROUGHT BEFORE A MAGISTRATE WITH
ALL CONVENIENT SPEED SO THAT HE MAY, IF SO ADVISED, EMIT A DECLARATION
IN PRESENCE OF HIS SOLICITOR UNDER CONDITIONS WHICH SAFEGUARD HIM
AGAINST PREJUDICE." 

FN4  QUITE A FEW OF THE STATES PROVIDE THAT PROCEDURAL SAFEGUARD
AGAINST COERCIVE POLICE PRACTICES.  THE CALIFORNIA PENAL CODE, SEC.
825, PROVIDES: 

"THE DEFENDANT MUST IN ALL CASES BE TAKEN BEFORE THE MAGISTRATE
WITHOUT UNNECESSARY DELAY, AND, IN ANY EVENT, WITHIN TWO DAYS AFTER HIS
ARREST, EXCLUDING SUNDAYS AND HOLIDAYS; AND AFTER SUCH ARREST, ANY
ATTORNEY AT LAW ENTITLED TO PRACTICE IN THE COURTS OF RECORD OF
CALIFORNIA, MAY AT THE REQUEST OF THE PRISONER OR ANY RELATIVE OF SUCH
PRISONER, VISIT THE PERSON SO ARRESTED.  ANY OFFICER HAVING CHARGE OF
THE PRISONER SO ARRESTED WHO WILFULLY REFUSES OR NEGLECTS TO ALLOW SUCH
ATTORNEY TO VISIT A PRISONER IS GUILTY OF A MISDEMEANOR.  ANY OFFICER
HAVING A PRISONER IN CHARGE, WHO REFUSES TO ALLOW ANY ATTORNEY TO VISIT
THE PRISONER WHEN PROPER APPLICATION IS MADE THEREFOR SHALL FORFEIT AND
PAY TO THE PARTY AGGRIEVED THE SUM OF FIVE HUNDRED DOLLARS, TO BE
RECOVERED BY ACTION IN ANY COURT OF COMPETENT JURISDICTION." 

ANOTHER TYPE OF STATUTE IS THAT CONTAINED IN KAN. GEN. STAT., 1949,
SEC. 62-1304A, WHICH PROVIDES:

"THAT ANY PERSON HELD IN RESTRAINT OF HIS LIBERTY PENDING TRIAL OR
HELD FOR INVESTIGATION IN ANY JAIL OR OTHER PLACE OF CONFINEMENT IN
THIS STATE, SHALL BE PERMITTED UPON REQUEST TO IMMEDIATELY CONFER
PRIVATELY WITH AN ATTORNEY OF HIS CHOICE IN THE SAME ROOM WITH SUCH
ATTORNEY AND WITHOUT ANY BARRIERS BETWEEN SUCH PERSON AND HIS ATTORNEY,
AND WITHOUT ANY LISTENING IN OR RECORDING DEVICES." 

FOR STATUTES SIMILAR TO THE KANSAS ACT SEE COLO. REV. STAT. ANN.,
1953 (1957 CUM. SUPP.), C. 39-1-1; ILL. REV. STAT., 1955, C. 38, SEC.
449.1; VERNON'S ANN. MO. STAT., 1953, SEC.  544.170; MONT. REV. CODES,
1947, SEC. 93-2117; N.H. REV. STAT. ANN., 1955, C. 594:16; N.C. GEN.
STAT., 1953 (1957 CUM. SUPP.), SEC. 15-47; PAGE'S OHIO REV. CODE ANN.,
1954, SEC. 2935.16.  SEE ALSO SEC. 37 OF THE A.L.I. MODEL CODE OF
CRIMINAL PROCEDURE. 
..END :






NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. ALABAMA,
PATTERSON 357 U.S. 449 


NO. 91.  ARGUED JANUARY 15-16, 1958.  - DECIDED JUNE 30, 1958.  - 265
ALA. 349, 91 SO. 2D 214, REVERSED AND CAUSE REMANDED. 


PETITIONER IS A NONPROFIT MEMBERSHIP CORPORATION ORGANIZED UNDER THE
LAWS OF NEW YORK FOR THE PURPOSE OF ADVANCING THE WELFARE OF NEGROES. 
IT OPERATES THROUGH CHARTERED AFFILIATES WHICH ARE INDEPENDENT
UNINCORPORATED ASSOCIATIONS, WITH MEMBERSHIP THEREIN EQUIVALENT TO
MEMBERSHIP IN PETITIONER.  IT HAD LOCAL AFFILIATES IN ALABAMA AND
OPENED AN OFFICE OF ITS OWN THERE WITHOUT COMPLYING WITH AN ALABAMA
STATUTE WHICH, WITH SOME EXCEPTIONS, REQUIRES A FOREIGN CORPORATION TO
QUALIFY BEFORE DOING BUSINESS IN THE STATE BY FILING ITS CORPORATE
CHARTER AND DESIGNATING A PLACE OF BUSINESS AND AN AGENT TO RECEIVE
SERVICE OF PROCESS.  ALLEGING THAT PETITIONER'S ACTIVITIES WERE CAUSING
IRREPARABLE INJURY TO THE CITIZENS OF THE STATE FOR WHICH CRIMINAL
PROSECUTION AND CIVIL ACTIONS AT LAW AFFORDED NO ADEQUATE RELIEF, THE
STATE BROUGHT AN EQUITY SUIT IN A STATE COURT TO ENJOIN PETITIONER FROM
CONDUCTING FURTHER ACTIVITIES IN, AND TO OUST IT FROM, THE STATE.  THE
COURT ISSUED AN EX PARTE ORDER RESTRAINING PETITIONER, PENDENTE LITE,
FROM ENGAGING IN FURTHER ACTIVITIES IN THE STATE AND FROM TAKING ANY
STEPS TO QUALIFY TO DO BUSINESS THERE.  PETITIONER MOVED TO DISSOLVE
THE RESTRAINING ORDER, AND THE COURT, ON THE STATE'S MOTION, ORDERED
THE PRODUCTION OF MANY OF PETITIONER'S RECORDS, INCLUDING ITS
MEMBERSHIP LISTS.  AFTER SOME DELAY, PETITIONER PRODUCED SUBSTANTIALLY
ALL THE DATA CALLED FOR EXCEPT ITS MEMBERSHIP LISTS.  IT WAS ADJUDGED
IN CONTEMPT AND FINED $100,000 FOR FAILURE TO PRODUCE THE LISTS.  THE
STATE SUPREME COURT DENIED CERTIORARI TO REVIEW THE CONTEMPT JUDGMENT,
AND THIS COURT GRANTED CERTIORARI.  HELD: 

1.  DENIAL OF RELIEF BY THE STATE SUPREME COURT DID NOT REST ON AN
ADEQUATE STATE GROUND, AND THIS COURT HAS JURISDICTION TO ENTERTAIN
PETITIONER'S FEDERAL CLAIMS.  PP. 454-458. 

2.  PETITIONER HAS A RIGHT TO ASSERT ON BEHALF OF ITS MEMBERS A CLAIM
THAT THEY ARE ENTITLED UNDER THE FEDERAL CONSTITUTION TO BE PROTECTED
FROM BEING COMPELLED BY THE STATE TO DISCLOSE THEIR AFFILIATION WITH
THE ASSOCIATION.  PP. 458-460. 

3.  IMMUNITY FROM STATE SCRUTINY OF PETITIONER'S MEMBERSHIP LISTS IS
HERE SO RELATED TO THE RIGHT OF PETITIONER'S MEMBERS TO PURSUE THEIR
LAWFUL PRIVATE INTERESTS PRIVATELY AND TO ASSOCIATE FREELY WITH OTHERS
IN DOING SO AS TO COME WITHIN THE PROTECTION OF THE FOURTEENTH
AMENDMENT.  THE STATE HAS FAILED TO SHOW A CONTROLLING JUSTIFICATION
FOR THE DETERRENT EFFECT ON THE FREE ENJOYMENT OF THE RIGHT TO
ASSOCIATE WHICH DISCLOSURE OF PETITIONER'S MEMBERSHIP LISTS IS LIKELY
TO HAVE.  ACCORDINGLY, THE JUDGMENT OF CIVIL CONTEMPT AND THE FINE
WHICH RESULTED FROM PETITIONER'S REFUSAL TO PRODUCE ITS MEMBERSHIP
LISTS MUST FALL.  PP.  460-466. 

(A)  FREEDOM TO ENGAGE IN ASSOCIATION FOR THE ADVANCEMENT OF BELIEFS
AND IDEAS IS AN INSEPARABLE ASPECT OF THE "LIBERTY" ASSURED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 460-461. 

(B)  IN THE CIRCUMSTANCES OF THIS CASE, COMPELLED DISCLOSURE OF
PETITIONER'S MEMBERSHIP LISTS IS LIKELY TO CONSTITUTE AN EFFECTIVE
RESTRAINT ON ITS MEMBERS' FREEDOM OF ASSOCIATION.  PP. 461-463. 

(C)  WHATEVER INTEREST THE STATE MAY HAVE IN OBTAINING THE NAMES OF
PETITIONER'S ORDINARY MEMBERS, IT HAS NOT BEEN SHOWN TO BE SUFFICIENT
TO OVERCOME PETITIONER'S CONSTITUTIONAL OBJECTIONS TO THE PRODUCTION
ORDER.  PP. 463-466. 

4.  THE QUESTION WHETHER THE STATE COURT'S TEMPORARY RESTRAINING
ORDER PREVENTING PETITIONER FROM SOLICITING SUPPORT IN THE STATE
VIOLATES THE FOURTEENTH AMENDMENT IS NOT PROPERLY BEFORE THIS COURT,
SINCE THE MERITS OF THE CONTROVERSY HAVE NOT BEEN PASSED UPON BY THE
STATE COURTS.  PP. 466-467. 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. ALABAMA EX
REL. PATTERSON, ATTORNEY GENERAL. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WE REVIEW FROM THE STANDPOINT OF ITS VALIDITY UNDER THE FEDERAL
CONSTITUTION A JUDGMENT OF CIVIL CONTEMPT ENTERED AGAINST PETITIONER,
THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, IN THE
COURTS OF ALABAMA.  THE QUESTION PRESENTED IS WHETHER ALABAMA,
CONSISTENTLY WITH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
CAN COMPEL PETITIONER TO REVEAL TO THE STATE'S ATTORNEY GENERAL THE
NAMES AND ADDRESSES OF ALL ITS ALABAMA MEMBERS AND AGENTS, WITHOUT
REGARD TO THEIR POSITIONS OR FUNCTIONS IN THE ASSOCIATION.  THE
JUDGMENT OF CONTEMPT WAS BASED UPON PETITIONER'S REFUSAL TO COMPLY
FULLY WITH A COURT ORDER REQUIRING IN PART THE PRODUCTION OF MEMBERSHIP
LISTS.  PETITIONER'S CLAIM IS THAT THE ORDER, IN THE CIRCUMSTANCES
SHOWN BY THIS RECORD, VIOLATED RIGHTS ASSURED TO PETITIONER AND ITS
MEMBERS UNDER THE CONSTITUTION. 

ALABAMA HAS A STATUTE SIMILAR TO THOSE OF MANY OTHER STATES WHICH
REQUIRES A FOREIGN CORPORATION, EXCEPT AS EXEMPTED, TO QUALIFY BEFORE
DOING BUSINESS BY FILING ITS CORPORATE CHARTER WITH THE SECRETARY OF
STATE AND DESIGNATING A PLACE OF BUSINESS AND AN AGENT TO RECEIVE
SERVICE OF PROCESS.  THE STATUTE IMPOSES A FINE ON A CORPORATION
TRANSACTING INTRASTATE BUSINESS BEFORE QUALIFYING AND PROVIDES FOR
CRIMINAL PROSECUTION OF OFFICERS OF SUCH A CORPORATION.  ALA. CODE,
1940, TIT. 10, SECS. 192-198.  THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE IS A NONPROFIT MEMBERSHIP CORPORATION
ORGANIZED UNDER THE LAWS OF NEW YORK.  ITS PURPOSES, FOSTERED ON A
NATIONWIDE BASIS, ARE THOSE INDICATED BY ITS NAME,* AND IT OPERATES
THROUGH CHARTERED AFFILIATES WHICH ARE INDEPENDENT UNINCORPORATED
ASSOCIATIONS, WITH MEMBERSHIP THEREIN EQUIVALENT TO MEMBERSHIP IN
PETITIONER.  THE FIRST ALABAMA AFFILIATES WERE CHARTERED IN 1918. 
SINCE THAT TIME THE AIMS OF THE ASSOCIATION HAVE BEEN ADVANCED THROUGH
ACTIVITIES OF ITS AFFILIATES, AND IN 1951 THE ASSOCIATION ITSELF OPENED
A REGIONAL OFFICE IN ALABAMA, AT WHICH IT EMPLOYED TWO SUPERVISORY
PERSONS AND ONE CLERICAL WORKER.  THE ASSOCIATION HAS NEVER COMPLIED
WITH THE QUALIFICATION STATUTE, FROM WHICH IT CONSIDERED ITSELF
EXEMPT. 

*THE CERTIFICATE OF INCORPORATION OF THE ASSOCIATION PROVIDES THAT
ITS "  ...  PRINCIPAL OBJECTS ...  ARE VOLUNTARILY TO PROMOTE EQUALITY
OF RIGHTS AND ERADICATE CASTE OR RACE PREJUDICE AMONG THE CITIZENS OF
THE UNITED STATES; TO ADVANCE THE INTEREST OF COLORED CITIZENS; TO
SECURE FOR THEM IMPARTIAL SUFFRAGE; AND TO INCREASE THEIR OPPORTUNITIES
FOR SECURING JUSTICE IN THE COURTS, EDUCATION FOR THEIR CHILDREN,
EMPLOYMENT ACCORDING TO THEIR ABILITY, AND COMPLETE EQUALITY BEFORE THE
LAW." 

IN 1956 THE ATTORNEY GENERAL OF ALABAMA BROUGHT AN EQUITY SUIT IN THE
STATE CIRCUIT COURT, MONTGOMERY COUNTY, TO ENJOIN THE ASSOCIATION FROM
CONDUCTING FURTHER ACTIVITIES WITHIN, AND TO OUST IT FROM, THE STATE. 
AMONG OTHER THINGS THE BILL IN EQUITY ALLEGED THAT THE ASSOCIATION HAD
OPENED A REGIONAL OFFICE AND HAD ORGANIZED VARIOUS AFFILIATES IN
ALABAMA; HAD RECRUITED MEMBERS AND SOLICITED CONTRIBUTIONS WITHIN THE
STATE; HAD GIVEN FINANCIAL SUPPORT AND FURNISHED LEGAL ASSISTANCE TO
NEGRO STUDENTS SEEKING ADMISSION TO THE STATE UNIVERSITY; AND HAD
SUPPORTED A NEGRO BOYCOTT OF THE BUS LINES IN MONTGOMERY TO COMPEL THE
SEATING OF PASSENGERS WITHOUT REGARD TO RACE.  THE BILL RECITED THAT
THE ASSOCIATION, BY CONTINUING TO DO BUSINESS IN ALABAMA WITHOUT
COMPLYING WITH THE QUALIFICATION STATUTE, WAS "  ...  CAUSING
IRREPARABLE INJURY TO THE PROPERTY AND CIVIL RIGHTS OF THE RESIDENTS
AND CITIZENS OF THE STATE OF ALABAMA FOR WHICH CRIMINAL PROSECUTION AND
CIVIL ACTIONS AT LAW AFFORD NO ADEQUATE RELIEF  ...  ."  ON THE DAY THE
COMPLAINT WAS FILED, THE CIRCUIT COURT ISSUED EX PARTE AN ORDER
RESTRAINING THE ASSOCIATION, PENDENTE LITE, FROM ENGAGING IN FURTHER
ACTIVITIES WITHIN THE STATE AND FORBIDDING IT TO TAKE ANY STEPS TO
QUALIFY ITSELF TO DO BUSINESS THEREIN. 

PETITIONER DEMURRED TO THE ALLEGATIONS OF THE BILL AND MOVED TO
DISSOLVE THE RESTRAINING ORDER.  IT CONTENDED THAT ITS ACTIVITIES DID
NOT SUBJECT IT TO THE QUALIFICATION REQUIREMENTS OF THE STATUTE AND
THAT IN ANY EVENT WHAT THE STATE SOUGHT TO ACCOMPLISH BY ITS SUIT WOULD
VIOLATE RIGHTS TO FREEDOM OF SPEECH AND ASSEMBLY GUARANTEED UNDER THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.  BEFORE
THE DATE SET FOR A HEARING ON THIS MOTION, THE STATE MOVED FOR THE
PRODUCTION OF A LARGE NUMBER OF THE ASSOCIATION'S RECORDS AND PAPERS,
INCLUDING BANK STATEMENTS, LEASES, DEEDS, AND RECORDS CONTAINING THE
NAMES AND ADDRESSES OF ALL ALABAMA "MEMBERS" AND "AGENTS" OF THE
ASSOCIATION.  IT ALLEGED THAT ALL SUCH DOCUMENTS WERE NECESSARY FOR
ADEQUATE PREPARATION FOR THE HEARING, IN VIEW OF PETITIONER'S DENIAL OF
THE CONDUCT OF INTRASTATE BUSINESS WITHIN THE MEANING OF THE
QUALIFICATION STATUTE.  OVER PETITIONER'S OBJECTIONS, THE COURT ORDERED
THE PRODUCTION OF A SUBSTANTIAL PART OF THE REQUESTED RECORDS,
INCLUDING THE MEMBERSHIP LISTS, AND POSTPONED THE HEARING ON THE
RESTRAINING ORDER TO A DATE LATER THAN THE TIME ORDERED FOR
PRODUCTION. 

THEREAFTER PETITIONER FILED ITS ANSWER TO THE BILL IN EQUITY.  IT
ADMITTED ITS ALABAMA ACTIVITIES SUBSTANTIALLY AS ALLEGED IN THE
COMPLAINT AND THAT IT HAD NOT QUALIFIED TO DO BUSINESS IN THE STATE. 
ALTHOUGH STILL DISCLAIMING THE STATUTE'S APPLICATION TO IT, PETITIONER
OFFERED TO QUALIFY IF THE BAR FROM QUALIFICATION MADE PART OF THE
RESTRAINING ORDER WERE LIFTED, AND IT SUBMITTED WITH THE ANSWER AN
EXECUTED SET OF THE FORMS REQUIRED BY THE STATUTE.  HOWEVER PETITIONER
DID NOT COMPLY WITH THE PRODUCTION ORDER, AND FOR THIS FAILURE WAS
ADJUDGED IN CIVIL CONTEMPT AND FINED $10,000.  THE CONTEMPT JUDGMENT
PROVIDED THAT THE FINE WOULD BE SUBJECT TO REDUCTION OR REMISSION IF
COMPLIANCE WERE FORTHCOMING WITHIN FIVE DAYS BUT OTHERWISE WOULD BE
INCREASED TO $100,000. 

AT THE END OF THE FIVE-DAY PERIOD PETITIONER PRODUCED SUBSTANTIALLY
ALL THE DATA CALLED FOR BY THE PRODUCTION ORDER EXCEPT ITS MEMBERSHIP
LISTS, AS TO WHICH IT CONTENDED THAT ALABAMA COULD NOT CONSTITUTIONALLY
COMPEL DISCLOSURE, AND MOVED TO MODIFY OR VACATE THE CONTEMPT JUDGMENT,
OR STAY ITS EXECUTION PENDING APPELLATE REVIEW.  THIS MOTION WAS
DENIED.  WHILE A SIMILAR STAY APPLICATION, WHICH WAS LATER DENIED, WAS
PENDING BEFORE THE SUPREME COURT OF ALABAMA, THE CIRCUIT COURT MADE A
FURTHER ORDER ADJUDGING PETITIONER IN CONTINUING CONTEMPT AND
INCREASING THE FINE ALREADY IMPOSED TO $100,000.  UNDER ALABAMA LAW,
SEE JACOBY V. GOETTER, WEIL & CO., 74 ALA. 427, THE EFFECT OF THE
CONTEMPT ADJUDICATION WAS TO FORECLOSE PETITIONER FROM OBTAINING A
HEARING ON THE MERITS OF THE UNDERLYING OUSTER ACTION, OR FROM TAKING
ANY STEPS TO DISSOLVE THE TEMPORARY RESTRAINING ORDER WHICH HAD BEEN
ISSUED EX PARTE, UNTIL IT PURGED ITSELF OF CONTEMPT.  BUT CF. HARRISON
V. ST. LOUIS & S.F.R. CO., 232 U.S. 318; HOVEY V. ELLIOTT, 167 U.S.
409. 

THE STATE SUPREME COURT THEREAFTER TWICE DISMISSED PETITIONS FOR
CERTIORARI TO REVIEW THIS FINAL CONTEMPT JUDGMENT, THE FIRST TIME, 91
SO. 2D 221, FOR INSUFFICIENCY OF THE PETITION'S ALLEGATIONS AND THE
SECOND TIME ON PROCEDURAL GROUNDS.  265 ALA. 349, 91 SO. 2D 214.  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE CONSTITUTIONAL
QUESTIONS PRESENTED.  353 U.S. 972. 

                           I. 

WE ADDRESS OURSELVES FIRST TO RESPONDENT'S CONTENTION THAT WE LACK
JURISDICTION BECAUSE THE DENIAL OF CERTIORARI BY THE SUPREME COURT OF
ALABAMA RESTS ON AN INDEPENDENT NONFEDERAL GROUND, NAMELY, THAT
PETITIONER IN APPLYING FOR CERTIORARI HAD PURSUED THE WRONG APPELLATE
REMEDY UNDER STATE LAW.  RESPONDENT RECOGNIZES THAT OUR JURISDICTION IS
NOT DEFEATED IF THE NONFEDERAL GROUND RELIED ON BY THE STATE COURT IS
"WITHOUT ANY FAIR OR SUBSTANTIAL SUPPORT," WARD V. BOARD OF COUNTY
COMMISSIONERS, 253 U.S. 17, 22.  IT THUS BECOMES OUR DUTY TO ASCERTAIN,
"  ...  IN ORDER THAT CONSTITUTIONAL GUARANTIES MAY APPROPRIATELY BE
ENFORCED, WHETHER THE ASSERTED NON-FEDERAL GROUND INDEPENDENTLY AND
ADEQUATELY SUPPORTS THE JUDGMENT."  ABIE STATE BANK V. BRYAN, 282 U.S.
765, 773. 

THE ALABAMA SUPREME COURT HELD THAT IT COULD NOT CONSIDER THE
CONSTITUTIONAL ISSUES UNDERLYING THE CONTEMPT JUDGMENT WHICH RELATED TO
THE POWER OF THE STATE TO ORDER PRODUCTION OF MEMBERSHIP LISTS BECAUSE
REVIEW BY CERTIORARI WAS LIMITED TO INSTANCES "  ...  WHERE THE COURT
LACKED JURISDICTION OF THE PROCEEDING, OR WHERE ON THE FACE OF IT THE
ORDER DISOBEYED WAS VOID, OR WHERE PROCEDURAL REQUIREMENTS WITH RESPECT
TO CITATION FOR CONTEMPT AND THE LIKE WERE NOT OBSERVED, OR WHERE THE
FACT OF CONTEMPT IS NOT SUSTAINED  ...  ."  265 ALA., AT 353, 91 SO.
2D, AT 217.  THE PROPER MEANS FOR PETITIONER TO OBTAIN REVIEW OF THE
JUDGMENT IN LIGHT OF ITS CONSTITUTIONAL CLAIMS, SAID THE COURT, WAS BY
WAY OF MANDAMUS TO QUASH THE DISCOVERY ORDER PRIOR TO THE CONTEMPT
ADJUDICATION.  BECAUSE OF PETITIONER'S FAILURE TO PURSUE THIS REMEDY,
ITS CHALLENGE TO THE CONTEMPT ORDER WAS RESTRICTED TO THE ABOVE
GROUNDS.  APPARENTLY NOT DEEMING THE CONSTITUTIONAL OBJECTIONS TO DRAW
INTO QUESTION WHETHER "ON THE FACE OF IT THE ORDER DISOBEYED WAS VOID,"
THE COURT FOUND NO INFIRMITY IN THE CONTEMPT JUDGMENT UNDER THIS
LIMITED SCOPE OF REVIEW.  AT THE SAME TIME IT DID GO ON TO CONSIDER
PETITIONER'S CONSTITUTIONAL CHALLENGE TO THE ORDER TO PRODUCE
MEMBERSHIP LISTS BUT FOUND IT UNTENABLE SINCE MEMBERSHIP LISTS WERE NOT
PRIVILEGED AGAINST DISCLOSURE PURSUANT TO REASONABLE STATE DEMANDS AND
SINCE THE PRIVILEGE AGAINST SELF-INCRIMINATION WAS NOT AVAILABLE TO
CORPORATIONS. 

WE ARE UNABLE TO RECONCILE THE PROCEDURAL HOLDING OF THE ALABAMA
SUPREME COURT IN THE PRESENT CASE WITH ITS PAST UNAMBIGUOUS HOLDINGS AS
TO THE SCOPE OF REVIEW AVAILABLE UPON A WRIT OF CERTIORARI ADDRESSED TO
A CONTEMPT JUDGMENT.  AS EARLY AS 1909 THAT COURT SAID IN SUCH A CASE,
EX PARTE DICKENS, 162 ALA. 272, AT 276, 279-280, 50 SO. 218, AT 220,
221: 

"ORIGINALLY, ON CERTIORARI, ONLY THE QUESTION OF JURISDICTION WAS
INQUIRED INTO; BUT THIS LIMIT HAS BEEN REMOVED, AND NOW THE COURT
'EXAMINES THE LAW QUESTIONS INVOLVED IN THE CASE WHICH MAY AFFECT ITS
MERITS'  ...  . 

     *         *         *         *     * 

"  ...  THE JUDGMENT OF THIS COURT IS THAT THE PROPER WAY TO REVIEW
THE ACTION OF THE COURT IN CASES OF THIS KIND IS BY CERTIORARI, AND NOT
BY APPEAL. 

"WE THINK THAT CERTIORARI IS A BETTER REMEDY THAN MANDAMUS, BECAUSE
THE OFFICE OF A 'MANDAMUS' IS TO REQUIRE THE LOWER COURT OR JUDGE TO
ACT, AND NOT 'TO CORRECT ERROR OR TO REVERSE JUDICIAL ACTION,'  ...
WHEREAS, IN A PROCEEDING BY CERTIORARI, ERRORS OF LAW IN THE JUDICIAL
ACTION OF THE LOWER COURT MAY BE INQUIRED INTO AND CORRECTED." 

THIS STATEMENT WAS IN FULL ACCORD WITH THE EARLIER CASE OF EX PARTE
BOSCOWITZ, 84 ALA.  463, 4 SO. 279, AND THE PRACTICE IN THE LATER
ALABAMA CASES, UNTIL WE REACH THE PRESENT ONE, APPEARS TO HAVE BEEN
ENTIRELY CONSISTENT WITH THIS RULE.  SEE EX PARTE WHEELER, 231 ALA.
356, 358, 165 SO. 74, 75-76; EX PARTE BLAKEY, 240 ALA. 517, 199 SO.
857; EX PARTE SELLERS, 250 ALA.  87, 88, 33 SO. 2D 349, 350.  FOR
EXAMPLE, IN EX PARTE MORRIS, 252 ALA. 551, 42 SO. 2D 17, DECIDED AS
LATE AS 1949, THE PETITIONER HAD BEEN HELD IN CONTEMPT FOR HIS REFUSAL
TO OBEY A COURT ORDER TO PRODUCE NAMES OF MEMBERS OF THE KU KLUX KLAN. 
ON WRIT OF CERTIORARI, CONSTITUTIONAL GROUNDS WERE URGED IN PART FOR
REVERSAL OF THE CONTEMPT CONVICTION.  IN DENYING THE WRIT OF
CERTIORARI, THE SUPREME COURT CONCLUDED THAT PETITIONER HAD BEEN
ACCORDED DUE PROCESS, AND IN EXPLAINING ITS DENIAL THE COURT CONSIDERED
AND REJECTED VARIOUS CONSTITUTIONAL CLAIMS RELATING TO THE VALIDITY OF
THE ORDER.  THERE WAS NO INTIMATION THAT THE PETITIONER HAD SELECTED AN
INAPPROPRIATE FORM OF APPELLATE REVIEW TO OBTAIN CONSIDERATION OF ALL
QUESTIONS OF LAW RAISED BY A CONTEMPT JUDGMENT. 

THE ALABAMA CASES DO INDICATE, AS WAS SAID IN THE OPINION BELOW, THAT
AN ORDER REQUIRING PRODUCTION OF EVIDENCE "  ...  MAY BE REVIEWED ON
PETITION FOR MANDAMUS."  265 ALA., AT 353, 91 SO. 2D, AT 217.  SEE EX
PARTE HART, 240 ALA. 642, 200 SO. 783; CF. EX PARTE DRIVER, 255 ALA.
118, 50 SO. 2D 413.  BUT WE CAN DISCOVER NOTHING IN THE PRIOR STATE
CASES WHICH SUGGESTS THAT MANDAMUS IS THE EXCLUSIVE REMEDY FOR
REVIEWING COURT ORDERS AFTER DISOBEDIENCE OF THEM HAS LED TO CONTEMPT
JUDGMENTS.  NOR, SO FAR AS WE CAN FIND, DO ANY OF THESE PRIOR DECISIONS
INDICATE THAT THE VALIDITY OF SUCH ORDERS CAN BE DRAWN IN QUESTION BY
WAY OF CERTIORARI ONLY IN INSTANCES WHERE A DEFENDANT HAD NO
OPPORTUNITY TO APPLY FOR MANDAMUS.  ALTHOUGH THE OPINION BELOW SUGGESTS
NO SUCH DISTINCTION, THE STATE NOW ARGUES THAT THIS WAS IN FACT THE
SITUATION IN ALL OF THE EARLIER CERTIORARI CASES, BECAUSE THERE THE
CONTEMPT ADJUDICATIONS, UNLIKE HERE, HAD FOLLOWED ALMOST IMMEDIATELY
THE DISOBEDIENCE TO THE COURT ORDERS.  EVEN IF THAT IS INDEED THE
RATIONALE OF THE ALABAMA SUPREME COURT'S PRESENT DECISION, SUCH A LOCAL
PROCEDURAL RULE, ALTHOUGH IT MAY NOW APPEAR IN RETROSPECT TO FORM PART
OF A CONSISTENT PATTERN OF PROCEDURES TO OBTAIN APPELLATE REVIEW,
CANNOT AVAIL THE STATE HERE, BECAUSE PETITIONER COULD NOT FAIRLY BE
DEEMED TO HAVE BEEN APPRISED OF ITS EXISTENCE.  NOVELTY IN PROCEDURAL
REQUIREMENTS CANNOT BE PERMITTED TO THWART REVIEW IN THIS COURT APPLIED
FOR BY THOSE WHO, IN JUSTIFIED RELIANCE UPON PRIOR DECISIONS, SEEK
VINDICATION IN STATE COURTS OF THEIR FEDERAL CONSTITUTIONAL RIGHTS. 
CF. BRINKERHOFF-FARIS CO. V. HILL, 281 U.S. 673.    THAT THERE WAS
JUSTIFIED RELIANCE HERE IS FURTHER INDICATED BY WHAT THE ALABAMA
SUPREME COURT SAID IN DISPOSING OF PETITIONER'S MOTION FOR A STAY OF
THE FIRST CONTEMPT JUDGMENT IN THIS CASE.  THIS MOTION, WHICH WAS FILED
PRIOR TO THE FINAL CONTEMPT JUDGMENT AND WHICH STRESSED CONSTITUTIONAL
ISSUES, RECITED THAT "THE ONLY WAY IN WHICH THE (ASSOCIATION) CAN SEEK
A REVIEW OF THE VALIDITY OF THE ORDER UPON WHICH THE ADJUDICATION OF
CONTEMPT IS BASED (IS) BY FILING A PETITION FOR WRIT OF CERTIORARI IN
THIS COURT."  IN DENYING THE MOTION, 265 ALA. 356, 357, 91 SO. 2D 220,
221, THE SUPREME COURT STATED: 

"IT IS THE ESTABLISHED RULE OF THIS COURT THAT THE PROPER METHOD OF
REVIEWING A JUDGMENT FOR CIVIL CONTEMPT OF THE KIND HERE INVOLVED IS BY
A PETITION FOR COMMON LAW WRIT OF CERTIORARI  ...  . 

"BUT THE PETITIONER HERE HAS NOT APPLIED FOR WRIT OF CERTIORARI, AND
WE DO NOT FEEL THAT THE PETITION (FOR A STAY) PRESENTLY BEFORE US
WARRANTS OUR INTERFERENCE WITH THE JUDGMENT OF THE CIRCUIT COURT OF
MONTGOMERY COUNTY HERE SOUGHT TO BE STAYED." 

WE HOLD THAT THIS COURT HAS JURISDICTION TO ENTERTAIN PETITIONER'S
FEDERAL CLAIMS. 

                                       II. 

THE ASSOCIATION BOTH URGES THAT IT IS CONSTITUTIONALLY ENTITLED TO
RESIST OFFICIAL INQUIRY INTO ITS MEMBERSHIP LISTS, AND THAT IT MAY
ASSERT, ON BEHALF OF ITS MEMBERS, A RIGHT PERSONAL TO THEM TO BE
PROTECTED FROM COMPELLED DISCLOSURE BY THE STATE OF THEIR AFFILIATION
WITH THE ASSOCIATION AS REVEALED BY THE MEMBERSHIP LISTS.  WE THINK
THAT PETITIONER ARGUES MORE APPROPRIATELY THE RIGHTS OF ITS MEMBERS,
AND THAT ITS NEXUS WITH THEM IS SUFFICIENT TO PERMIT THAT IT ACT AS
THEIR REPRESENTATIVE BEFORE THIS COURT.  IN SO CONCLUDING, WE REJECT
RESPONDENT'S ARGUMENT THAT THE ASSOCIATION LACKS STANDING TO ASSERT
HERE CONSTITUTIONAL RIGHTS PERTAINING TO THE MEMBERS, WHO ARE NOT OF
COURSE PARTIES TO THE LITIGATION. 

TO LIMIT THE BREADTH OF ISSUES WHICH MUST BE DEALT WITH IN PARTICULAR
LITIGATION, THIS COURT HAS GENERALLY INSISTED THAT PARTIES RELY ONLY ON
CONSTITUTIONAL RIGHTS WHICH ARE PERSONAL TO THEMSELVES.   TILESTON V.
ULLMAN, 318 U.S. 44; ROBERTSON AND KIRKHAM, JURISDICTION OF THE SUPREME
COURT (1951 ED.), SEC. 298.  THIS RULE IS RELATED TO THE BROADER
DOCTRINE THAT CONSTITUTIONAL ADJUDICATION SHOULD WHERE POSSIBLE BE
AVOIDED.  SEE ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288,
346-348 (CONCURRING OPINION).  THE PRINCIPLE IS NOT DISRESPECTED WHERE
CONSTITUTIONAL RIGHTS OF PERSONS WHO ARE NOT IMMEDIATELY BEFORE THE
COURT COULD NOT BE EFFECTIVELY VINDICATED EXCEPT THROUGH AN APPROPRIATE
REPRESENTATIVE BEFORE THE COURT.  SEE BARROWS V. JACKSON, 346 U.S. 249,
255-259; JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123,
183-187 (CONCURRING OPINION). 

IF PETITIONER'S RANK-AND-FILE MEMBERS ARE CONSTITUTIONALLY ENTITLED
TO WITHHOLD THEIR CONNECTION WITH THE ASSOCIATION DESPITE THE
PRODUCTION ORDER, IT IS MANIFEST THAT THIS RIGHT IS PROPERLY ASSERTABLE
BY THE ASSOCIATION.  TO REQUIRE THAT IT BE CLAIMED BY THE MEMBERS
THEMSELVES WOULD RESULT IN NULLIFICATION OF THE RIGHT AT THE VERY
MOMENT OF ITS ASSERTION.  PETITIONER IS THE APPROPRIATE PARTY TO ASSERT
THESE RIGHTS, BECAUSE IT AND ITS MEMBERS ARE IN EVERY PRACTICAL SENSE
IDENTICAL.  THE ASSOCIATION, WHICH PROVIDES IN ITS CONSTITUTION THAT
"ANY PERSON WHO IS IN ACCORDANCE WITH (ITS) PRINCIPLES AND POLICIES
...  " MAY BECOME A MEMBER, IS BUT THE MEDIUM THROUGH WHICH ITS
INDIVIDUAL MEMBERS SEEK TO MAKE MORE EFFECTIVE THE EXPRESSION OF THEIR
OWN VIEWS.  THE REASONABLE LIKELIHOOD THAT THE ASSOCIATION ITSELF
THROUGH DIMINISHED FINANCIAL SUPPORT AND MEMBERSHIP MAY BE ADVERSELY
AFFECTED IF PRODUCTION IS COMPELLED IS A FURTHER FACTOR POINTING
TOWARDS OUR HOLDING THAT PETITIONER HAS STANDING TO COMPLAIN OF THE
PRODUCTION ORDER ON BEHALF OF ITS MEMBERS.  CF. PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510, 534-536. 

                                       III. 

WE THUS REACH PETITIONER'S CLAIM THAT THE PRODUCTION ORDER IN THE
STATE LITIGATION TRESPASSES UPON FUNDAMENTAL FREEDOMS PROTECTED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PETITIONER ARGUES THAT
IN VIEW OF THE FACTS AND CIRCUMSTANCES SHOWN IN THE RECORD, THE EFFECT
OF COMPELLED DISCLOSURE OF THE MEMBERSHIP LISTS WILL BE TO ABRIDGE THE
RIGHTS OF ITS RANK-AND-FILE MEMBERS TO ENGAGE IN LAWFUL ASSOCIATION IN
SUPPORT OF THEIR COMMON BELIEFS.  IT CONTENDS THAT GOVERNMENTAL ACTION
WHICH, ALTHOUGH NOT DIRECTLY SUPPRESSING ASSOCIATION, NEVERTHELESS
CARRIES THIS CONSEQUENCE, CAN BE JUSTIFIED ONLY UPON SOME OVERRIDING
VALID INTEREST OF THE STATE. 

EFFECTIVE ADVOCACY OF BOTH PUBLIC AND PRIVATE POINTS OF VIEW,
PARTICULARLY CONTROVERSIAL ONES, IS UNDENIABLY ENHANCED BY GROUP
ASSOCIATION, AS THIS COURT HAS MORE THAN ONCE RECOGNIZED BY REMARKING
UPON THE CLOSE NEXUS BETWEEN THE FREEDOMS OF SPEECH AND ASSEMBLY.  DE
JONGE V. OREGON, 299 U.S. 353, 364; THOMAS V. COLLINS, 323 U.S. 516,
530.  IT IS BEYOND DEBATE THAT FREEDOM TO ENGAGE IN ASSOCIATION FOR THE
ADVANCEMENT OF BELIEFS AND IDEAS IS AN INSEPARABLE ASPECT OF THE
"LIBERTY" ASSURED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, WHICH EMBRACES FREEDOM OF SPEECH.  SEE GITLOW V. NEW YORK,
268 U.S. 652, 666; PALKO V. CONNECTICUT, 302 U.S. 319, 324; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303; STAUB V. CITY OF BAXLEY, 355 U.S. 313,
321.  OF COURSE, IT IS IMMATERIAL WHETHER THE BELIEFS SOUGHT TO BE
ADVANCED BY ASSOCIATION PERTAIN TO POLITICAL, ECONOMIC, RELIGIOUS OR
CULTURAL MATTERS, AND STATE ACTION WHICH MAY HAVE THE EFFECT OF
CURTAILING THE FREEDOM TO ASSOCIATE IS SUBJECT TO THE CLOSEST
SCRUTINY. 

THE FACT THAT ALABAMA, SO FAR AS IS RELEVANT TO THE VALIDITY OF THE
CONTEMPT JUDGMENT PRESENTLY UNDER REVIEW, HAS TAKEN NO DIRECT ACTION,
CF. DE JONGE V. OREGON, SUPRA; NEAR V. MINNESOTA, 283 U.S. 697, TO
RESTRICT THE RIGHT OF PETITIONER'S MEMBERS TO ASSOCIATE FREELY, DOES
NOT END INQUIRY INTO THE EFFECT OF THE PRODUCTION ORDER.  SEE AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 402.  IN THE DOMAIN OF
THESE INDISPENSABLE LIBERTIES, WHETHER OF SPEECH, PRESS, OR
ASSOCIATION, THE DECISIONS OF THIS COURT RECOGNIZE THAT ABRIDGMENT OF
SUCH RIGHTS, EVEN THOUGH UNINTENDED, MAY INEVITABLY FOLLOW FROM VARIED
FORMS OF GOVERNMENTAL ACTION.  THUS IN DOUDS, THE COURT STRESSED THAT
THE LEGISLATION THERE CHALLENGED, WHICH ON ITS FACE SOUGHT TO REGULATE
LABOR UNIONS AND TO SECURE STABILITY IN INTERSTATE COMMERCE, WOULD HAVE
THE PRACTICAL EFFECT "OF DISCOURAGING" THE EXERCISE OF CONSTITUTIONALLY
PROTECTED POLITICAL RIGHTS, 339 U.S., AT 393, AND IT UPHELD THE STATUTE
ONLY AFTER CONCLUDING THAT THE REASONS ADVANCED FOR ITS ENACTMENT WERE
CONSTITUTIONALLY SUFFICIENT TO JUSTIFY ITS POSSIBLE DETERRENT EFFECT
UPON SUCH FREEDOMS.  SIMILAR RECOGNITION OF POSSIBLE UNCONSTITUTIONAL
INTIMIDATION OF THE FREE EXERCISE OF THE RIGHT TO ADVOCATE UNDERLAY
THIS COURT'S NARROW CONSTRUCTION OF THE AUTHORITY OF A CONGRESSIONAL
COMMITTEE INVESTIGATING LOBBYING AND OF AN ACT REGULATING LOBBYING,
ALTHOUGH IN NEITHER CASE WAS THERE AN EFFORT TO SUPPRESS SPEECH. 
UNITED STATES V. RUMELY, 345 U.S. 41, 46-47; UNITED STATES V. HARRISS,
347 U.S. 612, 625-626.  THE GOVERNMENTAL ACTION CHALLENGED MAY APPEAR
TO BE TOTALLY UNRELATED TO PROTECTED LIBERTIES.  STATUTES IMPOSING
TAXES UPON RATHER THAN PROHIBITING PARTICULAR ACTIVITY HAVE BEEN STRUCK
DOWN WHEN PERCEIVED TO HAVE THE CONSEQUENCE OF UNDULY CURTAILING THE
LIBERTY OF FREEDOM OF PRESS ASSURED UNDER THE FOURTEENTH AMENDMENT. 
GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; MURDOCK V. PENNSYLVANIA,
319 U.S. 105. 

IT IS HARDLY A NOVEL PERCEPTION THAT COMPELLED DISCLOSURE OF
AFFILIATION WITH GROUPS ENGAGED IN ADVOCACY MAY CONSTITUTE AS EFFECTIVE
A RESTRAINT ON FREEDOM OF ASSOCIATION AS THE FORMS OF GOVERNMENTAL
ACTION IN THE CASES ABOVE WERE THOUGHT LIKELY TO PRODUCE UPON THE
PARTICULAR CONSTITUTIONAL RIGHTS THERE INVOLVED.  THIS COURT HAS
RECOGNIZED THE VITAL RELATIONSHIP BETWEEN FREEDOM TO ASSOCIATE AND
PRIVACY IN ONE'S ASSOCIATIONS.  WHEN REFERRING TO THE VARIED FORMS OF
GOVERNMENTAL ACTION WHICH MIGHT INTERFERE WITH FREEDOM OF ASSEMBLY, IT
SAID IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, SUPRA, AT 402:  "A
REQUIREMENT THAT ADHERENTS OF PARTICULAR RELIGIOUS FAITHS OR POLITICAL
PARTIES WEAR IDENTIFYING ARM-BANDS, FOR EXAMPLE, IS OBVIOUSLY OF THIS
NATURE."  COMPELLED DISCLOSURE OF MEMBERSHIP IN AN ORGANIZATION ENGAGED
IN ADVOCACY OF PARTICULAR BELIEFS IS OF THE SAME ORDER.  INVIOLABILITY
OF PRIVACY IN GROUP ASSOCIATION MAY IN MANY CIRCUMSTANCES BE
INDISPENSABLE TO PRESERVATION OF FREEDOM OF ASSOCIATION, PARTICULARLY
WHERE A GROUP ESPOUSES DISSIDENT BELIEFS.  CF.  UNITED STATES V.
RUMELY, SUPRA, AT 56-58 (CONCURRING OPINION). 

WE THINK THAT THE PRODUCTION ORDER, IN THE RESPECTS HERE DRAWN IN
QUESTION, MUST BE REGARDED AS ENTAILING THE LIKELIHOOD OF A SUBSTANTIAL
RESTRAINT UPON THE EXERCISE BY PETITIONER'S MEMBERS OF THEIR RIGHT TO
FREEDOM OF ASSOCIATION.  PETITIONER HAS MADE AN UNCONTROVERTED SHOWING
THAT ON PAST OCCASIONS REVELATION OF THE IDENTITY OF ITS RANK-AND-FILE
MEMBERS HAS EXPOSED THESE MEMBERS TO ECONOMIC REPRISAL, LOSS OF
EMPLOYMENT, THREAT OF PHYSICAL COERCION, AND OTHER MANIFESTATIONS OF
PUBLIC HOSTILITY.  UNDER THESE CIRCUMSTANCES, WE THINK IT APPARENT THAT
COMPELLED DISCLOSURE OF PETITIONER'S ALABAMA MEMBERSHIP IS LIKELY TO
AFFECT ADVERSELY THE ABILITY OF PETITIONER AND ITS MEMBERS TO PURSUE
THEIR COLLECTIVE EFFORT TO FOSTER BELIEFS WHICH THEY ADMITTEDLY HAVE
THE RIGHT TO ADVOCATE, IN THAT IT MAY INDUCE MEMBERS TO WITHDRAW FROM
THE ASSOCIATION AND DISSUADE OTHERS FROM JOINING IT BECAUSE OF FEAR OF
EXPOSURE OF THEIR BELIEFS SHOWN THROUGH THEIR ASSOCIATIONS AND OF THE
CONSEQUENCES OF THIS EXPOSURE. 

IT IS NOT SUFFICIENT TO ANSWER, AS THE STATE DOES HERE, THAT WHATEVER
REPRESSIVE EFFECT COMPULSORY DISCLOSURE OF NAMES OF PETITIONER'S
MEMBERS MAY HAVE UPON PARTICIPATION BY ALABAMA CITIZENS IN PETITIONER'S
ACTIVITIES FOLLOWS NOT FROM STATE ACTION BUT FROM PRIVATE COMMUNITY
PRESSURES.  THE CRUCIAL FACTOR IS THE INTERPLAY OF GOVERNMENTAL AND
PRIVATE ACTION, FOR IT IS ONLY AFTER THE INITIAL EXERTION OF STATE
POWER REPRESENTED BY THE PRODUCTION ORDER THAT PRIVATE ACTION TAKES
HOLD. 

WE TURN TO THE FINAL QUESTION WHETHER ALABAMA HAS DEMONSTRATED AN
INTEREST IN OBTAINING THE DISCLOSURES IT SEEKS FROM PETITIONER WHICH IS
SUFFICIENT TO JUSTIFY THE DETERRENT EFFECT WHICH WE HAVE CONCLUDED
THESE DISCLOSURES MAY WELL HAVE ON THE FREE EXERCISE BY PETITIONER'S
MEMBERS OF THEIR CONSTITUTIONALLY PROTECTED RIGHT OF ASSOCIATION.  SEE
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, SUPRA, AT 400; SCHNEIDER V.
STATE, 308 U.S. 147, 161.  SUCH A "  ...  SUBORDINATING INTEREST OF THE
STATE MUST BE COMPELLING," SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 265
(CONCURRING OPINION).  IT IS NOT OF MOMENT THAT THE STATE HAS HERE
ACTED SOLELY THROUGH ITS JUDICIAL BRANCH, FOR WHETHER LEGISLATIVE OR
JUDICIAL, IT IS STILL THE APPLICATION OF STATE POWER WHICH WE ARE ASKED
TO SCRUTINIZE. 

IT IS IMPORTANT TO BEAR IN MIND THAT PETITIONER ASSERTS NO RIGHT TO
ABSOLUTE IMMUNITY FROM STATE INVESTIGATION, AND NO RIGHT TO DISREGARD
ALABAMA'S LAWS.  AS SHOWN BY ITS SUBSTANTIAL COMPLIANCE WITH THE
PRODUCTION ORDER, PETITIONER DOES NOT DENY ALABAMA'S RIGHT TO OBTAIN
FROM IT SUCH INFORMATION AS THE STATE DESIRES CONCERNING THE PURPOSES
OF THE ASSOCIATION AND ITS ACTIVITIES WITHIN THE STATE.  PETITIONER HAS
NOT OBJECTED TO DIVULGING THE IDENTITY OF ITS MEMBERS WHO ARE EMPLOYED
BY OR HOLD OFFICIAL POSITIONS WITH IT.  IT HAS URGED THE RIGHTS SOLELY
OF ITS ORDINARY RANK-AND-FILE MEMBERS.  THIS IS THEREFORE NOT ANALOGOUS
TO A CASE INVOLVING THE INTEREST OF A STATE IN PROTECTING ITS CITIZENS
IN THEIR DEALINGS WITH PAID SOLICITORS OR AGENTS OF FOREIGN
CORPORATIONS BY REQUIRING IDENTIFICATION.  SEE CANTWELL V. CONNECTICUT,
SUPRA, AT 306; THOMAS V. COLLINS, SUPRA, AT 538. 

WHETHER THERE WAS "JUSTIFICATION" IN THIS INSTANCE TURNS SOLELY ON
THE SUBSTANTIALITY OF ALABAMA'S INTEREST IN OBTAINING THE MEMBERSHIP
LISTS.  DURING THE COURSE OF A HEARING BEFORE THE ALABAMA CIRCUIT COURT
ON A MOTION OF PETITIONER TO SET ASIDE THE PRODUCTION ORDER, THE STATE
ATTORNEY GENERAL PRESENTED AT LENGTH, UNDER EXAMINATION BY PETITIONER,
THE STATE'S REASON FOR REQUESTING THE MEMBERSHIP LISTS.  THE EXCLUSIVE
PURPOSE WAS TO DETERMINE WHETHER PETITIONER WAS CONDUCTING INTRASTATE
BUSINESS IN VIOLATION OF THE ALABAMA FOREIGN CORPORATION REGISTRATION
STATUTE, AND THE MEMBERSHIP LISTS WERE EXPECTED TO HELP RESOLVE THIS
QUESTION.  THE ISSUES IN THE LITIGATION COMMENCED BY ALABAMA BY ITS
BILL IN EQUITY WERE WHETHER THE CHARACTER OF PETITIONER AND ITS
ACTIVITIES IN ALABAMA HAD BEEN SUCH AS TO MAKE PETITIONER SUBJECT TO
THE REGISTRATION STATUTE, AND WHETHER THE EXTENT OF PETITIONER'S
ACTIVITIES WITHOUT QUALIFYING SUGGESTED ITS PERMANENT OUSTER FROM THE
STATE.  WITHOUT INTIMATING THE SLIGHTEST VIEW UPON THE MERITS OF THESE
ISSUES, WE ARE UNABLE TO PERCEIVE THAT THE DISCLOSURE OF THE NAMES OF
PETITIONER'S RANK-AND-FILE MEMBERS HAS A SUBSTANTIAL BEARING ON EITHER
OF THEM.  AS MATTERS STAND IN THE STATE COURT, PETITIONER (1) HAS
ADMITTED ITS PRESENCE AND CONDUCT OF ACTIVITIES IN ALABAMA SINCE 1918;
(2) HAS OFFERED TO COMPLY IN ALL RESPECTS WITH THE STATE QUALIFICATION
STATUTE, ALTHOUGH PRESERVING ITS CONTENTION THAT THE STATUTE DOES NOT
APPLY TO IT; AND (3) HAS APPARENTLY COMPLIED SATISFACTORILY WITH THE
PRODUCTION ORDER, EXCEPT FOR THE MEMBERSHIP LISTS, BY FURNISHING THE
ATTORNEY GENERAL WITH VARIED BUSINESS RECORDS, ITS CHARTER AND
STATEMENT OF PURPOSES, THE NAMES OF ALL OF ITS DIRECTORS AND OFFICERS,
AND WITH THE TOTAL NUMBER OF ITS ALABAMA MEMBERS AND THE AMOUNT OF
THEIR DUES.  THESE LAST ITEMS WOULD NOT ON THIS RECORD APPEAR SUBJECT
TO CONSTITUTIONAL CHALLENGE AND HAVE BEEN FURNISHED, BUT WHATEVER
INTEREST THE STATE MAY HAVE IN OBTAINING NAMES OF ORDINARY MEMBERS HAS
NOT BEEN SHOWN TO BE SUFFICIENT TO OVERCOME PETITIONER'S CONSTITUTIONAL
OBJECTIONS TO THE PRODUCTION ORDER.    FROM WHAT HAS ALREADY BEEN SAID,
WE THINK IT APPARENT THAT BRYANT V. ZIMMERMAN, 278 U.S. 63, CANNOT BE
RELIED ON IN SUPPORT OF THE STATE'S POSITION, FOR THAT CASE INVOLVED
MARKEDLY DIFFERENT CONSIDERATIONS IN TERMS OF THE INTEREST OF THE STATE
IN OBTAINING DISCLOSURE.  THERE, THIS COURT UPHELD, AS APPLIED TO A
MEMBER OF A LOCAL CHAPTER OF THE KU KLUX KLAN, A NEW YORK STATUTE
REQUIRING ANY UNINCORPORATED ASSOCIATION WHICH DEMANDED AN OATH AS A
CONDITION TO MEMBERSHIP TO FILE WITH STATE OFFICIALS COPIES OF ITS "
...  CONSTITUTION, BY-LAWS, RULES, REGULATIONS AND OATH OF MEMBERSHIP,
TOGETHER WITH A ROSTER OF ITS MEMBERSHIP AND A LIST OF ITS OFFICERS FOR
THE CURRENT YEAR."  N.Y. LAWS 1923, C. 664, SECS. 53, 56.  IN ITS
OPINION, THE COURT TOOK CARE TO EMPHASIZE THE NATURE OF THE
ORGANIZATION WHICH NEW YORK SOUGHT TO REGULATE.  THE DECISION WAS BASED
ON THE PARTICULAR CHARACTER OF THE KLAN'S ACTIVITIES, INVOLVING ACTS OF
UNLAWFUL INTIMIDATION AND VIOLENCE, WHICH THE COURT ASSUMED WAS BEFORE
THE STATE LEGISLATURE WHEN IT ENACTED THE STATUTE, AND OF WHICH THE
COURT ITSELF TOOK JUDICIAL NOTICE.  FURTHERMORE, THE SITUATION BEFORE
US IS SIGNIFICANTLY DIFFERENT FROM THAT IN BRYANT, BECAUSE THE
ORGANIZATION THERE HAD MADE NO EFFORT TO COMPLY WITH ANY OF THE
REQUIREMENTS OF NEW YORK'S STATUTE BUT RATHER HAD REFUSED TO FURNISH
THE STATE WITH ANY INFORMATION AS TO ITS LOCAL ACTIVITIES. 

WE HOLD THAT THE IMMUNITY FROM STATE SCRUTINY OF MEMBERSHIP LISTS
WHICH THE ASSOCIATION CLAIMS ON BEHALF OF ITS MEMBERS IS HERE SO
RELATED TO THE RIGHT OF THE MEMBERS TO PURSUE THEIR LAWFUL PRIVATE
INTERESTS PRIVATELY AND TO ASSOCIATE FREELY WITH OTHERS IN SO DOING AS
TO COME WITHIN THE PROTECTION OF THE FOURTEENTH AMENDMENT.  AND WE
CONCLUDE THAT ALABAMA HAS FALLEN SHORT OF SHOWING A CONTROLLING
JUSTIFICATION FOR THE DETERRENT EFFECT ON THE FREE ENJOYMENT OF THE
RIGHT TO ASSOCIATE WHICH DISCLOSURE OF MEMBERSHIP LISTS IS LIKELY TO
HAVE.  ACCORDINGLY, THE JUDGMENT OF CIVIL CONTEMPT AND THE $100,000
FINE WHICH RESULTED FROM PETITIONER'S REFUSAL TO COMPLY WITH THE
PRODUCTION ORDER IN THIS RESPECT MUST FALL. 

              IV. 

PETITIONER JOINS WITH ITS ATTACK UPON THE PRODUCTION ORDER A
CHALLENGE TO THE CONSTITUTIONALITY OF THE STATE'S EX PARTE TEMPORARY
RESTRAINING ORDER PREVENTING IT FROM SOLICITING SUPPORT IN ALABAMA, AND
IT ASSERTS THAT THE FOURTEENTH AMENDMENT PRECLUDES SUCH STATE ACTION. 
BUT AS NOTED ABOVE, PETITIONER HAS NEVER RECEIVED A HEARING ON THE
MERITS OF THE OUSTER SUIT, AND WE DO NOT CONSIDER THESE QUESTIONS
PROPERLY HERE.  THE SUPREME COURT OF ALABAMA NOTED IN ITS DENIAL OF THE
PETITION FOR CERTIORARI THAT SUCH PETITION RAISED SOLELY A QUESTION
PERTINENT TO THE CONTEMPT ADJUDICATION.  "THE ULTIMATE AIM AND PURPOSE
OF THE LITIGATION IS TO DETERMINE THE RIGHT OF THE STATE TO ENJOIN
PETITIONERS FROM DOING BUSINESS IN ALABAMA.  THAT QUESTION, HOWEVER, IS
NOT BEFORE US IN THIS PROCEEDING."  265 ALA., AT 352, 91 SO. 2D, AT
216.  THE PROPER METHOD FOR RAISING QUESTIONS IN THE STATE APPELLATE
COURTS PERTINENT TO THE UNDERLYING SUIT FOR AN INJUNCTION APPEARS TO BE
BY APPEAL, AFTER A HEARING ON THE MERITS AND FINAL JUDGMENT BY THE
LOWER STATE COURT.  ONLY FROM THE DISPOSITION OF SUCH AN APPEAL CAN
REVIEW BE SOUGHT HERE. 

FOR THE REASONS STATED, THE JUDGMENT OF THE SUPREME COURT OF ALABAMA
MUST BE REVERSED AND THE CASE REMANDED FOR PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  REVERSED. 
..END :















LERNER V. CASEY, CONSTITUTING THE NEW YORK CITY TRANSIT AUTHORITY 357
U.S. 468. 


NO. 165.  ARGUED MARCH 4, 1958 - DECIDED JUNE 30, 1958 - 2 N.Y.2D 355,
141 N.E.2D 553, AFFIRMED. 


IN AN INVESTIGATION CONDUCTED UNDER THE NEW YORK SECURITY RISK LAW,
APPELLANT, A SUBWAY CONDUCTOR EMPLOYED BY THE NEW YORK CITY TRANSIT
AUTHORITY, WAS SUMMONED TO THE OFFICE OF THE COMMISSIONER OF
INVESTIGATION OF NEW YORK CITY AND ASKED WHETHER HE WAS THEN A MEMBER
OF THE COMMUNIST PARTY.  HE REFUSED TO ANSWER, CLAIMING HIS PRIVILEGE
AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT, AND HE PERSISTED
IN THIS REFUSAL AFTER BEING WARNED THAT IT MIGHT LEAD TO HIS DISMISSAL
AND AFTER BEING GIVEN TIME TO RECONSIDER AND TO OBTAIN COUNSEL.  BASED
UPON THIS REFUSAL, APPELLEES FOUND THAT "REASONABLE GROUNDS EXIST FOR
BELIEF THAT, BECAUSE OF HIS DOUBTFUL TRUST AND RELIABILITY,"
APPELLANT'S CONTINUED EMPLOYMENT WOULD ENDANGER NATIONAL AND STATE
SECURITY, AND THEY SUSPENDED HIM AND LATER DISCHARGED HIM AFTER HE
FAILED TO AVAIL HIMSELF OF AN OPPORTUNITY TO SUBMIT STATEMENTS OR
AFFIDAVITS SHOWING WHY HE SHOULD BE REINSTATED.  WITHOUT PURSUING HIS
ADMINISTRATIVE REMEDIES BEFORE THE STATE CIVIL SERVICE COMMISSION, HE
SUED IN A STATE COURT FOR REINSTATEMENT; THAT COURT DISMISSED THE SUIT;
ITS DECISION WAS SUSTAINED BY THE STATE'S HIGHEST COURT; AND HE
APPEALED TO THIS COURT.  HELD:  APPELLANT'S DISCHARGE DID NOT VIOLATE
HIS RIGHTS UNDER THE FEDERAL CONSTITUTION.  PP. 470-479. 

1.  SINCE THE CONSTITUTIONAL QUESTIONS BEFORE THIS COURT RELATE
PRIMARILY TO THE PROPRIETY OF THE FINDINGS MADE BY APPELLEES, RATHER
THAN TO THE VALIDITY OF THE PROVISIONS OF THE STATE LAW, THE APPEAL IS
DISMISSED; BUT CERTIORARI IS GRANTED.  P. 473. 

2.  APPELLANT IS IN NO POSITION TO CLAIM THAT THE STATE LAW DEPRIVES
HIM OF PROCEDURAL DUE PROCESS BY PROVIDING FOR DISMISSAL OF EMPLOYEES
WITHOUT A HEARING, OPPORTUNITY FOR CROSS-EXAMINATION OR DISCLOSURE OF
THE EVIDENCE UPON WHICH DISMISSAL IS BASED, SINCE HIS OWN REFUSAL TO
ANSWER BLOCKED SUCH PROCEEDINGS AND IN ANY EVENT HE FAILED TO PURSUE
HIS ADMINISTRATIVE REMEDY.  P. 473. 

3.  SINCE THE HIGHEST STATE COURT CONSIDERED THAT APPELLANT WAS NOT
DISCHARGED ON THE GROUND THAT HE WAS A MEMBER OF THE COMMUNIST PARTY,
HE CANNOT CLAIM THAT THE STATUTE OFFENDS DUE PROCESS BY MAKING IT
POSSIBLE TO BASE DISMISSAL OF AN EMPLOYEE ON MERE PRESENT MEMBERSHIP IN
THE COMMUNIST PARTY WITHOUT REGARD TO THE CHARACTER OF SUCH
MEMBERSHIP.  PP. 474-475. 

4.  THE MANNER IN WHICH THE SECURITY RISK LAW WAS APPLIED TO
APPELLANT DID NOT VIOLATE HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT. 
PP. 475-479. 

(A)  THE HIGHEST STATE COURT HELD THAT APPELLANT'S DISCHARGE WAS NOT
BASED UPON ANY INFERENCE OF COMMUNIST PARTY MEMBERSHIP DRAWN FROM THE
EXERCISE OF HIS FIFTH AMENDMENT PRIVILEGE NOR UPON THE ASSERTION OF
THAT CONSTITUTIONAL PROTECTION, BUT RATHER UPON A FINDING OF "DOUBTFUL
TRUST AND RELIABILITY" BASED UPON HIS LACK OF CANDOR IN REFUSING TO
ANSWER QUESTIONS RELEVANT TO HIS EMPLOYMENT PUT TO HIM BY HIS
EMPLOYER.  PP. 475-476. 

(B)  SLOCHOWER V. BOARD OF HIGHER EDUCATION, 350 U.S. 551,
DISTINGUISHED.  PP. 476-477. 

(C)  NEW YORK'S CLASSIFICATION OF EMPLOYEES FOUND TO BE OF DOUBTFUL
TRUST AND RELIABILITY AS "SECURITY RISKS" IS NOT SO ARBITRARY AS TO BE
CONSTITUTIONALLY IMPERMISSIBLE WHEN APPLIED TO ONE IN APPELLANT'S
POSITION.  P. 478. 

(D)  APPELLANT'S ASSERTION OF HIS FIFTH AMENDMENT PRIVILEGE IN THESE
STATE PROCEEDINGS DID NOT PRECLUDE THE STATE FROM CONCLUDING THAT HIS
FAILURE TO ANSWER QUESTIONS RELEVANT TO HIS EMPLOYMENT ENGENDERED
REASONABLE DOUBT AS TO HIS TRUSTWORTHINESS AND RELIABILITY.  PP. 478
479. 

LERNER V. CASEY ET AL., CONSTITUTING THE NEW YORK CITY TRANSIT
AUTHORITY. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS UNDER THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES CONCERNING THE VALIDITY OF
APPELLANT'S DISMISSAL FROM HIS POSITION AS A SUBWAY CONDUCTOR IN THE
NEW YORK CITY TRANSIT SYSTEM.  THE DISMISSAL WAS PURSUANT TO THE
SECURITY RISK LAW OF THE STATE OF NEW YORK, N.Y. LAWS 1951, C. 233, AS
AMENDED, N.Y. LAWS 1954, C. 105. 

THE SECURITY RISK LAW, ENACTED BY NEW YORK IN 1951, (FN1) PROVIDES IN
PERTINENT PART AS FOLLOWS: THE STATE CIVIL SERVICE COMMISSION IS
AUTHORIZED TO CLASSIFY ANY BUREAU OR AGENCY WITHIN THE STATE AS A
"SECURITY AGENCY" (SEC. 3), DEFINED AS ANY UNIT OF GOVERNMENT "  ...
WHEREIN FUNCTIONS ARE PERFORMED WHICH ARE NECESSARY TO THE SECURITY OR
DEFENSE OF THE NATION AND THE STATE  ...  ."  (SEC. 2.)  THE APPOINTING
AUTHORITY IN EACH SUCH AGENCY IS GIVEN POWERS OF SUSPENSION AND
DISMISSAL AS TO ANY EMPLOYEE IF, AFTER INVESTIGATION, IT IS FOUND THAT,
"  ...  UPON ALL THE EVIDENCE, REASONABLE GROUNDS EXIST FOR BELIEF
THAT, BECAUSE OF DOUBTFUL TRUST AND RELIABILITY, THE EMPLOYMENT OF SUCH
PERSON  ...  (IN A SECURITY AGENCY) WOULD ENDANGER THE SECURITY OR
DEFENSE OF THE NATION AND THE STATE" (SEC. 5).  SUCH EVIDENCE IS NOT TO
BE RESTRICTED BY NORMAL RULES PREVAILING IN THE COURTS, AND THE
REQUIRED FINDING MAY BE BASED UPON AN EMPLOYEE'S PAST CONDUCT " ...
WHICH MAY INCLUDE, ...  BUT SHALL NOT BE LIMITED TO EVIDENCE OF  ...
(D) MEMBERSHIP IN ANY ORGANIZATION OR GROUP FOUND BY THE STATE CIVIL
SERVICE COMMISSION TO BE SUBVERSIVE" (SEC. 7).  (FN2)  A DISCHARGED
EMPLOYEE HAS A RIGHT OF APPEAL TO THE CIVIL SERVICE COMMISSION, WHICH
MAY TAKE FURTHER EVIDENCE (SEC. 6). 

IN NOVEMBER 1953 THE COMMISSION DETERMINED THE NEW YORK CITY TRANSIT
AUTHORITY, WHICH THE APPELLEES IN THIS CASE CONSTITUTE, TO BE A
"SECURITY AGENCY," (FN3) AND IN MARCH 1954 IT LISTED THE COMMUNIST
PARTY OF THE UNITED STATES AS A "SUBVERSIVE GROUP," ADOPTING, AS
CONTEMPLATED BY THE SECURITY RISK LAW, THE SIMILAR LISTING OF THE STATE
BOARD OF REGENTS MADE UNDER THE PROVISIONS OF THE FEINBERG LAW, N.Y.
LAWS 1949, C. 360, AFTER HEARINGS AT WHICH THE PARTY APPEARED BY
COUNSEL.  IN SEPTEMBER 1954 APPELLANT WAS SUMMONED TO THE OFFICE OF THE
COMMISSIONER OF INVESTIGATION OF THE CITY OF NEW YORK IN THE COURSE OF
AN INVESTIGATION BEING CONDUCTED UNDER THE SECURITY RISK LAW.  (FN4)
APPELLANT, WHO HAD BEEN SWORN, WAS ASKED WHETHER HE WAS THEN A MEMBER
OF THE COMMUNIST PARTY, BUT HE REFUSED TO ANSWER AND CLAIMED HIS
PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT TO THE
FEDERAL CONSTITUTION.  (FN5)  AFTER HE HAD BEEN ADVISED OF THE
PROVISIONS OF THE SECURITY RISK LAW AND GIVEN TIME TO RECONSIDER HIS
REFUSAL AND TO ENGAGE COUNSEL, APPELLANT, ACCOMPANIED BY COUNSEL, MADE
TWO FURTHER APPEARANCES IN SEPTEMBER AND OCTOBER BEFORE THE DEPARTMENT
OF INVESTIGATION, ON EACH OF WHICH HE ADHERED TO HIS INITIAL POSITION. 

APPELLEES, INFORMED OF THESE EVENTS, THEREUPON ADOPTED A RESOLUTION
SUSPENDING APPELLANT WITHOUT PAY AND SENT HIM A COPY OF THE RESOLUTION
WITH A COVERING LETTER.  THIS LETTER NOTIFIED APPELLANT THAT HIS
SUSPENSION FOLLOWED A FINDING UNDER SEC. 5 OF THE SECURITY RISK LAW "
...  THAT UPON ALL THE EVIDENCE, REASONABLE GROUNDS EXIST FOR BELIEF
THAT, BECAUSE OF DOUBTFUL TRUST AND RELIABILITY ...  ," APPELLANT'S
CONTINUED EMPLOYMENT WOULD ENDANGER NATIONAL AND STATE SECURITY.  THIS
FINDING WAS BASED ON APPELLANT'S REFUSAL "  ...  TO ANSWER QUESTIONS AS
TO WHETHER OR NOT HE WAS A MEMBER OF THE COMMUNIST PARTY AND
(INVOCATION OF) THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES  ...  ."  APPELLANT WAS ALSO ADVISED, PURSUANT TO SEC. 5 OF THE
SECURITY RISK LAW, THAT HE HAD THIRTY DAYS WITHIN WHICH TO SUBMIT
STATEMENTS OR AFFIDAVITS SHOWING WHY HE SHOULD BE REINSTATED.  AT THE
EXPIRATION OF THIS PERIOD APPELLEES, HAVING HEARD NOTHING FURTHER FROM
APPELLANT, DISMISSED HIM FROM HIS POSITION BY A RESOLUTION WHICH
CONFIRMED THE PREVIOUS "SUSPENSION" FINDINGS. 

APPELLANT DID NOT APPEAL TO THE CIVIL SERVICE COMMISSION, AS WAS HIS
STATUTORY RIGHT, BUT BROUGHT THIS PROCEEDING IN THE STATE COURTS FOR
REINSTATEMENT.  HE ATTACKED APPELLEES' ACTIONS ON VARIOUS GROUNDS,
INCLUDING THE CONSTITUTIONAL GROUNDS ASSERTED HERE.  THE STATE SUPREME
COURT, ASSUMING JURISDICTION DESPITE APPELLANT'S FAILURE TO EXHAUST HIS
ADMINISTRATIVE REMEDIES, UPHELD THE SECURITY RISK LAW AND ITS
APPLICATION TO APPELLANT AS CONSTITUTIONAL, RULED ADVERSELY TO
APPELLANT'S STATE LAW CONTENTIONS, AND DISMISSED THE PROCEEDINGS.  138
N.Y.S.2D 777.  THE APPELLATE DIVISION, 2 APP. DIV. 2D 1, 154 N.Y.S.2D
461 (2D DEPT.), AND THE COURT OF APPEALS, 2 N.Y.2D 355, 141 N.E.2D 533,
BOTH AFFIRMED, EACH BY A DIVIDED COURT.  AN APPEAL TO THIS COURT WAS
BROUGHT UNDER 28 U.S.C. SEC. 1257 (2), AND WE POSTPONED TO THE HEARING
ON THE MERITS THE QUESTION OF OUR JURISDICTION.  355 U.S. 803.  AS WILL
APPEAR FROM THIS OPINION, WE CONSIDER THAT THE CONSTITUTIONAL QUESTIONS
BEFORE US RELATE PRIMARILY, AND MORE SUBSTANTIALLY, TO THE PROPRIETY OF
THE FINDINGS MADE BY APPELLEES RATHER THAN TO THE VALIDITY OF THE
PROVISIONS OF THE SECURITY RISK LAW.  ACCORDINGLY, WE THINK IT THE
BETTER COURSE TO DISMISS THE APPEAL, AND TO TREAT THE PAPERS AS A
PETITION FOR WRIT OF CERTIORARI, WHICH IS HEREBY GRANTED.  (FN6)  28
U.S.C. SEC. 2103.  CF. SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234, 236. 

WE ADDRESS OURSELVES INITIALLY TO APPELLANT'S CONSTITUTIONAL
CHALLENGES TO THE SECURITY RISK LAW IN ITS ENTIRETY OR TO CERTAIN OF
ITS PROVISIONS.  IT IS SAID THAT NEW YORK'S STATUTE DEPRIVES HIM OF
PROCEDURAL DUE PROCESS, IN THAT IT PROVIDES FOR DISMISSAL OF EMPLOYEES
IN THE FIRST INSTANCE WITHOUT A STATUTORY RIGHT TO A HEARING,
OPPORTUNITY FOR CROSS-EXAMINATION, OR DISCLOSURE OF THE EVIDENCE ON
WHICH DISMISSAL IS BASED.  HOWEVER, APPELLANT IS IN NO POSITION TO
COMPLAIN OF PROCEDURAL DEFECTS IN THE STATUTE.  HIS OWN REFUSAL TO
ANSWER BLOCKED PROCEEDINGS AT HIS APPEARANCES BEFORE THE DEPARTMENT OF
INVESTIGATION, AND MORE IMPORTANT HE FAILED TO PURSUE HIS
ADMINISTRATIVE REMEDY BY APPEALING TO AND OBTAINING A HEARING BEFORE
THE STATE CIVIL SERVICE COMMISSION.  (FN7) 

APPELLANT FURTHER ARGUES THAT THE SECURITY RISK LAW COULD NOT BE
APPLIED TO HIM IN 1954 SINCE AT THAT TIME NO PUBLIC EMERGENCY EXISTED
WHICH COULD JUSTIFY THE LAW.  BUT NEW YORK'S RIGHT TO ENACT LEGISLATION
TO PROTECT ITS PUBLIC SERVICE AGAINST THE EMPLOYMENT OF PERSONS FAIRLY
DEEMED UNTRUSTWORTHY AND UNRELIABLE, AND THEREFORE SECURITY RISKS, CAN
HARDLY BE REGARDED AS CONSTITUTIONALLY DEPENDENT UPON THE EXISTENCE OF
A PUBLIC EMERGENCY, AND WE DO NOT THINK IT OPEN TO US TO INQUIRE INTO
THE MOTIVES WHICH LED THE STATE LEGISLATURE TO EXTEND THE SECURITY RISK
LAW BEYOND ITS ORIGINAL EFFECTIVE PERIOD.  NOR CAN WE SAY THAT IT WAS
SO IRRATIONAL AS TO MAKE IT CONSTITUTIONALLY IMPERMISSIBLE FOR NEW YORK
TO APPLY THIS STATUTE TO ONE EMPLOYED IN THE MAJOR ARTERY OF NEW YORK'S
TRANSPORTATION SYSTEM, EVEN THOUGH APPELLANT'S DAILY TASK WAS SIMPLY TO
OPEN AND SHUT SUBWAY DOORS.  WE ARE NOT HERE CONCERNED WITH THE WISDOM,
BUT SOLELY WITH THE CONSTITUTIONAL VALIDITY, OF THE APPLICATION OF THIS
STATUTE TO APPELLANT. 

FINALLY, THE CLAIM THAT THE STATUTE OFFENDS DUE PROCESS BECAUSE
DISMISSAL OF AN EMPLOYEE MAY BE BASED ON MERE PRESENT MEMBERSHIP IN THE
COMMUNIST PARTY, WITHOUT REGARD TO THE CHARACTER OF SUCH MEMBERSHIP,
CF. WIEMAN V. UPDEGRAFF, 344 U.S. 183, MUST ALSO FAIL.  APART FROM THE
FACT THAT THE STATUTE SIMPLY MAKES MEMBERSHIP IN AN ORGANIZATION FOUND
TO BE SUBVERSIVE ONE OF THE ELEMENTS WHICH MAY ENTER INTO THE ULTIMATE
DETERMINATION AS TO "DOUBTFUL TRUST AND RELIABILITY," APPELLANT, AS THE
COURT OF APPEALS VIEWED THE ADMINISTRATIVE PROCEEDINGS AND AS WE
ACCORDINGLY TREAT THEM HERE, WAS NOT DISCHARGED ON GROUNDS THAT HE WAS
A PARTY MEMBER. 

WE COME THEN TO WHAT WE CONSIDER APPELLANT'S MAJOR CONSTITUTIONAL
CLAIM, WHICH GOES TO THE MANNER IN WHICH THE SECURITY RISK LAW WAS
APPLIED TO HIM.  IT IS CONTENDED THAT THE ADMINISTRATIVE FINDING OF
REASONABLE GROUNDS FOR BELIEF THAT HE WAS "OF DOUBTFUL TRUST AND
RELIABILITY," AND THEREFORE A SECURITY RISK, OFFENDS DUE PROCESS.  THE
CONTENTION IS (1) THAT THE FINDING RESTS ON AN INFERENCE, THAT
APPELLANT WAS A MEMBER OF THE COMMUNIST PARTY, WHICH WAS DRAWN FROM
APPELLANT'S INVOCATION OF THE FIFTH AMENDMENT, AND THAT THIS INFERENCE
LACKED ANY RATIONAL CONNECTION WITH APPELLANT'S REFUSAL TO ANSWER BASED
ON THE EXERCISE OF THIS CONSTITUTIONAL PRIVILEGE; AND (2) THAT THE
DRAWING OF SUCH AN INFERENCE WAS IN ANY EVENT IN DEROGATION OF THE
POLICY BEHIND THE FIFTH AMENDMENT PRIVILEGE AND CONTRARY TO THE
TEACHING OF THIS COURT'S DECISION IN SLOCHOWER V. BOARD OF HIGHER
EDUCATION, 350 U.S. 551.  WE THINK THIS CONTENTION BOTH MISCONCEIVES
THE BASIS ON WHICH THE COURT OF APPEALS SUSTAINED APPELLANT'S DISMISSAL
AND ASSUMES INCORRECTLY THE AVAILABILITY OF THE FIFTH AMENDMENT TO
APPELLANT IN THESE PROCEEDINGS.  CONSEQUENTLY IT MUST BE REJECTED IN
BOTH ITS ASPECTS. 

AS WE READ ITS OPINION, THE COURT OF APPEALS HELD THAT APPELLANT HAD
BEEN DISCHARGED NEITHER BECAUSE OF ANY INFERENCE OF COMMUNIST PARTY
MEMBERSHIP WHICH WAS DRAWN FROM THE EXERCISE OF THE FIFTH AMENDMENT
PRIVILEGE NOR BECAUSE OF THE ASSERTION OF THAT CONSTITUTIONAL
PROTECTION, BUT RATHER BECAUSE OF THE DOUBT CREATED AS TO HIS
"RELIABILITY" BY HIS REFUSAL TO ANSWER A RELEVANT QUESTION PUT BY HIS
EMPLOYER, A DOUBT WHICH THE COURT HELD JUSTIFIABLE QUITE INDEPENDENTLY
OF APPELLANT'S REASONS FOR HIS SILENCE.  IN EFFECT, THE ADMINISTRATIVE
ACTION WAS INTERPRETED TO REST SOLELY ON THE REFUSAL TO RESPOND.  THE
COURT OF APPEALS SAID: 

"NO INFERENCE OF MEMBERSHIP IN (THE COMMUNIST) PARTY WAS DRAWN FROM
(APPELLANT'S) REFUSAL TO REPLY TO THE QUESTION ASKED  ...  .
(APPELLANT) WAS NOT DISCHARGED FOR INVOKING THE FIFTH AMENDMENT; HE WAS
DISCHARGED FOR CREATING A DOUBT AS TO HIS TRUSTWORTHINESS AND
RELIABILITY BY REFUSING TO ANSWER THE QUESTION AS TO COMMUNIST PARTY
MEMBERSHIP."  2 N.Y.2D, AT 372, 141 N.E.2D, AT 542. 

IN OTHER WORDS, WE READ THE COURT'S OPINION AS MEANING THAT A FINDING
OF DOUBTFUL TRUST AND RELIABILITY COULD JUSTIFIABLY BE BASED ON
APPELLANT'S LACK OF FRANKNESS, CF. GARNER V. BOARD OF PUBLIC WORKS, 341
U.S. 716; BEILAN V. BOARD OF PUBLIC EDUCATION, ANTE, P. 399, DECIDED
TODAY, JUST AS IF HE HAD REFUSED TO GIVE ANY OTHER INFORMATION ABOUT
HIMSELF WHICH MIGHT BE RELEVANT TO HIS EMPLOYMENT.  IT WAS THIS LACK OF
CANDOR WHICH PROVIDED THE EVIDENCE OF APPELLANT'S DOUBTFUL TRUST AND
RELIABILITY WHICH UNDER THE NEW YORK STATUTORY SCHEME CONSTITUTED HIM A
SECURITY RISK.  THE COURT OF APPEALS WENT ON TO REASON THAT HAD
APPELLANT REFUSED, WITHOUT MORE, TO ANSWER THE QUESTION, THE FINDING OF
"DOUBTFUL TRUST AND RELIABILITY" WOULD HAVE UNDOUBTEDLY BEEN
PERMISSIBLE, AND THAT THE BASIS FOR SUCH A FINDING, IN APPELLANT'S
REFUSAL TO ANSWER, WAS NOT DESTROYED BY THE CLAIM OF THE FIFTH
AMENDMENT PRIVILEGE BECAUSE THE COMMISSIONER WAS NOT REQUIRED TO ACCEPT
THAT CLAIM AS AN ADEQUATE EXPLANATION OF THE REFUSAL. 

ACCEPTING, AS WE DO, THESE PREMISES OF THE STATE COURT'S OPINION, WE
FIND NO CONSTITUTIONAL BLOCK TO ITS DECISION SUSTAINING APPELLANT'S
DISMISSAL FROM EMPLOYMENT.  POSTPONING FOR THE MOMENT THE QUESTION
WHETHER APPELLANT WAS ENTITLED TO RELY IN THIS LOCAL INVESTIGATION ON
THE FEDERAL PRIVILEGE, IT SEEMS CLEAR THAT THE DISCHARGE HERE IN ANY
EVENT WAS UNLIKE THAT IN SLOCHOWER V. BOARD OF HIGHER EDUCATION, SUPRA,
IN THAT, AS DEFINITIVELY INTERPRETED BY THE COURT OF APPEALS, IT WAS
NOT BASED ON THE FACT THAT THE EMPLOYEE HAD ASSERTED FIFTH AMENDMENT
RIGHTS.  FURTHER, IN SLOCHOWER SUCH A CLAIM HAD BEEN ASSERTED IN A
FEDERAL INQUIRY HAVING NOTHING TO DO WITH THE QUALIFICATIONS OF PERSONS
FOR STATE EMPLOYMENT, AND THE COURT IN ITS OPINION CAREFULLY
DISTINGUISHED THAT SITUATION FROM ONE WHERE, AS HERE, A STATE IS
CONDUCTING AN INQUIRY INTO FITNESS OF ITS EMPLOYEES.  NOR, AS THE COURT
OF APPEALS STRESSED, WAS THE CLAIM OF POSSIBLE SELF-INCRIMINATION MADE
THE BASIS FOR AN INFERENCE THAT APPELLANT WAS A COMMUNIST AND THEREFORE
UNRELIABLE.  HENCE WE ARE NOT FACED HERE WITH THE QUESTION WHETHER
PARTY MEMBERSHIP MAY RATIONALLY BE INFERRED FROM A REFUSAL TO ANSWER A
QUESTION DIRECTED TO PRESENT MEMBERSHIP WHERE THE REFUSAL RESTS ON THE
BELIEF THAT AN ANSWER MIGHT INCRIMINATE, CF. ADAMSON V. CALIFORNIA, 332
U.S. 46, OR WITH THE QUESTION WHETHER MEMBERSHIP IN THE COMMUNIST PARTY
WHICH MIGHT BE "INNOCENT" CAN BE RELIED UPON AS A GROUND FOR DENIAL OF
STATE EMPLOYMENT.  CF. WIEMAN V. UPDEGRAFF, SUPRA; KONIGSBERG V. STATE
BAR OF CALIFORNIA, 353 U.S. 252; SCHWARE V. BOARD OF BAR EXAMINERS, 353
U.S. 232. 

WE THINK IT SCARCELY DEBATABLE THAT HAD THERE BEEN NO CLAIM OF FIFTH
AMENDMENT PRIVILEGE, NEW YORK WOULD HAVE BEEN CONSTITUTIONALLY ENTITLED
TO CONCLUDE FROM APPELLANT'S REFUSAL TO ANSWER WHAT MUST BE CONCEDED TO
HAVE BEEN A QUESTION RELEVANT TO THE PURPOSES OF THE STATUTE AND HIS
EMPLOYMENT, CF. GARNER V. BOARD OF PUBLIC WORKS, SUPRA, THAT HE WAS OF
DOUBTFUL TRUST AND RELIABILITY.  SUCH A CONCLUSION IS NOT "SO STRAINED
AS NOT TO HAVE A REASONABLE RELATION TO THE CIRCUMSTANCES OF LIFE AS WE
KNOW THEM."  TOT V. UNITED STATES, 319 U.S. 463, 468.  THIS COURT
POINTED OUT IN GARNER THAT A GOVERNMENT EMPLOYEE CAN BE REQUIRED UPON
PAIN OF DISMISSAL TO RESPOND TO INQUIRY PROBING INTO MATTERS RELEVANT
TO HIS EMPLOYMENT, AND THAT PRESENT MEMBERSHIP IN THE COMMUNIST PARTY
IS SUCH A MATTER.  SEE ALSO BEILAN V. BOARD OF PUBLIC EDUCATION, SUPRA.
CERTAINLY IT IS NOT A CONTROLLING CONSTITUTIONAL DISTINCTION THAT NEW
YORK, RATHER THAN IMPOSE ON EMPLOYEES, AS IN GARNER AND BEILAN, AN
ABSOLUTE DUTY TO RESPOND TO PERMISSIBLE INQUIRY UPON THREAT OF
DISMISSAL FOR REFUSAL, HAS IN THESE PROCEEDINGS HELD THAT AN EMPLOYEE
LACKING IN CANDOR TO HIS GOVERNMENTAL EMPLOYER EVIDENCES DOUBT AS TO
HIS TRUST AND RELIABILITY.  FINALLY, UNLIKE THE SITUATION INVOLVED IN
KONIGSBERG V. STATE BAR OF CALIFORNIA, SUPRA, THERE IS HERE NO PROBLEM
OF INADEQUATE NOTICE AS TO THE CONSEQUENCES OF REFUSAL TO ANSWER, FOR
APPELLANT WAS SPECIFICALLY NOTIFIED THAT CONTINUED REFUSAL MIGHT LEAD
TO HIS DISMISSAL. 

THE FACT THAT NEW YORK HAS CHOSEN TO BASE ITS DISMISSAL OF EMPLOYEES
WHOM IT FINDS TO BE OF DOUBTFUL TRUST AND RELIABILITY ON THE GROUND
THAT THEY ARE IN EFFECT "SECURITY RISKS" HARDLY REQUIRES A DIFFERENT
DETERMINATION.  THE CLASSIFICATION IS NOT SO ARBITRARY THAT WE WOULD BE
JUSTIFIED IN SAYING THAT IT IS CONSTITUTIONALLY IMPERMISSIBLE IN ITS
APPLICATION TO ONE IN APPELLANT'S POSITION.  NEITHER THE NEW YORK
STATUTE NOR COURTS PURPORTED TO EQUATE THIS GROUND FOR DISMISSAL WITH
"DISLOYALTY."  THAT TERM, WHICH CARRIES A DISTINCT CONNOTATION, WAS
NEVER RELIED UPON BY NEW YORK AS JUSTIFICATION FOR APPELLANT'S
DISMISSAL. 

THE ISSUE THEN REDUCES TO THE NARROW QUESTION WHETHER THE CONCLUSION
WHICH COULD OTHERWISE BE REACHED FROM APPELLANT'S REFUSAL TO ANSWER IS
CONSTITUTIONALLY BARRED BECAUSE HIS REFUSAL WAS ACCOMPANIED BY THE
ASSERTION OF A FIFTH AMENDMENT PRIVILEGE.  WE THINK IT DOES NOT.  THE
FEDERAL PRIVILEGE AGAINST SELF-INCRIMINATION WAS NOT AVAILABLE TO
APPELLANT THROUGH THE FOURTEENTH AMENDMENT IN THIS STATE
INVESTIGATION.  KNAPP V. SCHWEITZER, ANTE, P. 371, DECIDED TODAY;
ADAMSON V. CALIFORNIA, SUPRA.  AND WE SEE NO MERIT IN APPELLANT'S
SUGGESTION THAT, DESPITE THE TEACHINGS OF THESE CASES, THE PLEA WAS
AVAILABLE TO HIM IN THIS INSTANCE BECAUSE THE STATE WAS ACTING AS AGENT
FOR, OR IN COLLABORATION WITH, THE FEDERAL GOVERNMENT.  THIS CONTENTION
FINDS NO SUPPORT IN THE RECORD.  HENCE WE ARE NOT HERE CONCERNED WITH
THE PROTECTION, AS A MATTER OF POLICY OR CONSTITUTIONAL REQUIREMENT, TO
BE ACCORDED PERSONS WHO UNDER SIMILAR CIRCUMSTANCES, IN A FEDERAL
INQUIRY, VALIDLY INVOKE THE FEDERAL PRIVILEGE.  CF. 18 U.S.C. SEC.
3481; WILSON V. UNITED STATES, 149 U.S. 60; SLOCHOWER V. BOARD OF
HIGHER EDUCATION, SUPRA; GRUNEWALD V. UNITED STATES, 353 U.S. 391. 
UNDER THESE CIRCUMSTANCES, WE CANNOT SAY THAT APPELLANT'S EXPLANATION
FOR HIS SILENCE PRECLUDED NEW YORK FROM CONCLUDING THAT HIS FAILURE TO
RESPOND TO RELEVANT INQUIRY ENGENDERED REASONABLE DOUBT AS TO HIS
TRUSTWORTHINESS AND RELIABILITY. 

WE HOLD THAT APPELLANT'S DISCHARGE WAS NOT IN VIOLATION OF RIGHTS
ASSURED HIM BY THE FEDERAL CONSTITUTION.  AFFIRMED. 

FN1  THE STATE STATUTE WAS ORIGINALLY PASSED AS AN EMERGENCY MEASURE
AND THEREAFTER EXTENDED FROM YEAR TO YEAR.  THE PRESENT TERMINAL DATE
IS JUNE 30, 1958. 

FN2  A SUBVERSIVE ORGANIZATION IS DEFINED IN SEC. 8 AS ONE WHICH IS
FOUND "  ...  TO ADVOCATE, ADVISE, TEACH OR EMBRACE THE DOCTRINE THAT
THE GOVERNMENT OF THE UNITED STATES OR OF ANY STATE OR OF ANY POLITICAL
SUBDIVISION THEREOF SHALL BE OVERTHROWN OR OVERTURNED BY FORCE,
VIOLENCE OR ANY UNLAWFUL MEANS, OR TO ADVOCATE, ADVISE, TEACH OR
EMBRACE THE DUTY, NECESSITY OR PROPRIETY OF ADOPTING ANY SUCH DOCTRINE
...  ." 

FN3  THE NEW YORK COURT OF APPEALS HELD THAT THE TRANSIT AUTHORITY
WAS A STATE BODY CORPORATE SUBJECT TO CLASSIFICATION UNDER THE SECURITY
RISK LAW AND SUSTAINED THE COMMISSION'S DETERMINATION THAT IT WAS A
"SECURITY AGENCY."  2 N.Y.2D 355, 365-367, 141 N.E.2D 533, 538-539.  WE
CONSIDER OURSELVES BOUND BY THESE HOLDINGS. 

FN4  THE COURT OF APPEALS HELD THAT THE COMMISSIONER OF
INVESTIGATION, ALTHOUGH A CITY OFFICIAL, WAS AUTHORIZED TO ACT WITH
RESPECT TO THESE MATTERS ARISING UNDER THE SECURITY RISK LAW AND TO
CONDUCT THESE INVESTIGATIONS. 

FN5  APPELLANT DID NOT SPECIFICALLY STATE THAT HIS REFUSAL TO ANSWER
WAS BASED ON HIS BELIEF THAT AN ANSWER MIGHT INCRIMINATE HIM BUT SIMPLY
EXPLAINED HIS SILENCE BY REFERENCE TO THE "FIFTH AMENDMENT."  WE
CONSIDER THIS REFERENCE, WITHOUT REGARD TO THE AVAILABILITY OF THE
FIFTH AMENDMENT TO APPELLANT IN THIS STATE INVESTIGATION (SEE P. 477,
INFRA), TO BE EQUIVALENT TO AN ASSERTION OF A CLAIM OF POSSIBLE SELF
INCRIMINATION.  SEE QUINN V. UNITED STATES, 349 U.S. 155, 162-163;
EMSPAK V. UNITED STATES, 349 U.S. 190, 194. 

FN6  FOR CONVENIENCE, WE SHALL CONTINUE TO REFER TO THE PARTIES AS
APPELLANT AND APPELLEES. 

FN7  WE MUST ALSO REJECT THE CONTENTION THAT APPELLANT WAS DENIED DUE
PROCESS IN THAT THE RESOLUTION MADE THE BASIS FOR HIS DISMISSAL NOTED
NOT ONLY HIS REFUSAL TO ANSWER BUT ALSO "  ... THAT FURTHER
INVESTIGATION HAS REVEALED ACTIVITIES ON THE PART OF (APPELLANT) WHICH
GIVE REASONABLE GROUND FOR BELIEF THAT HE IS NOT A GOOD SECURITY RISK
...  ."  THESE OTHER ACTIVITIES WERE NOT REVEALED TO APPELLANT.  BUT
THIS ISSUE IS NOT BEFORE US, SINCE THE STATE COURT SUSTAINED THE
DISMISSAL SOLELY ON THE BASIS OF APPELLANT'S REFUSAL TO ANSWER.  IN ANY
EVENT HAD APPELLANT PURSUED HIS ADMINISTRATIVE REMEDY, HE COULD HAVE
SOUGHT DISCLOSURE AND REVIEW OF SUCH EVIDENCE BEFORE THE CIVIL SERVICE
COMMISSION. 

FOR CONCURRING OPINION OF MR. JUSTICE FRANKFURTER, SEE ANTE, P. 409. 

FOR DISSENTING OPINION OF MR. CHIEF JUSTICE WARREN, SEE ANTE, P.
411. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, JOINED BY MR. JUSTICE
BLACK, SEE ANTE, P. 412. 

FOR DISSENTING OPINION OF MR. JUSTICE BRENNAN, SEE ANTE, P. 417. 
..END :








GIORDENELLO V. UNITED STATES 357 U.S. 480 


NO. 549.  ARGUED MAY 21, 1958 - DECIDED JUNE 30, 1958 - 241 F.2D 575,
REVERSED. 


WITH NO INDICTMENT AND ON HIS OWN COMPLAINT, A FEDERAL OFFICER
OBTAINED A WARRANT FOR PETITIONER'S ARREST, BUT OBTAINED NO SEARCH
WARRANT.  HIS COMPLAINT WAS NOT BASED ON HIS PERSONAL KNOWLEDGE, DID
NOT INDICATE THE SOURCE OF HIS BELIEF THAT PETITIONER HAD COMMITTED A
CRIME AND SET FORTH NO OTHER SUFFICIENT BASIS FOR A FINDING OF PROBABLY
CAUSE.  WITH THIS WARRANT, HE ARRESTED PETITIONER AND SEIZED NARCOTICS
IN HIS POSSESSION.  THE ARREST AND SEIZURE WERE NOT CHALLENGED AT
PETITIONER'S ARRAIGNMENT, BUT A MOTION TO SUPPRESS THE USE OF NARCOTICS
IN EVIDENCE WAS MADE AND DENIED BEFORE HIS TRIAL.  THEY WERE ADMITTED
IN EVIDENCE AT HIS TRIAL IN A FEDERAL DISTRICT COURT AND HE WAS
CONVICTED.  HELD:  THE ARREST AND SEIZURE WERE ILLEGAL, THE NARCOTICS
SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, AND PETITIONER'S CONVICTION
MUST BE SET ASIDE.  PP. 481-488. 

1.  BY WAIVING PRELIMINARY EXAMINATION BEFORE THE COMMISSIONER,
PETITIONER DID NOT SURRENDER HIS RIGHT TO CONTEST IN COURT THE VALIDITY
OF THE WARRANT ON THE GROUNDS HERE ASSERTED.  PP. 483-484. 

2.  UNDER RULES 3 AND 4 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE,
READ IN THE LIGHT OF THE FOURTH AMENDMENT, PROBABLE CAUSE WAS NOT SHOWN
BY THE COMPLAINT AND THE WARRANT FOR ARREST WAS ISSUED ILLEGALLY.  PP.
484-487. 

3.  HAVING RELIED ENTIRELY IN THE COURTS BELOW ON THE VALIDITY OF THE
WARRANT, THE GOVERNMENT CANNOT CONTEND IN THIS COURT THAT THE ARREST
WAS JUSTIFIED APART FROM THE WARRANT, BECAUSE THE ARRESTING OFFICER HAD
PROBABLE CAUSE TO BELIEVE THAT PETITIONER HAD COMMITTED A FELONY; NOR
SHOULD THE CASE BE SENT BACK TO THE DISTRICT COURT FOR A SPECIAL
HEARING ON THE ISSUE OF PROBABLE CAUSE.  PP. 487-488. 

GIORDENELLO V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF THE UNLAWFUL PURCHASE OF NARCOTICS, SEE
26 U.S.C. (SUPP. V) SEC. 4704, AFTER A TRIAL WITHOUT A JURY BEFORE THE
FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS.  A DIVIDED
COURT OF APPEALS AFFIRMED.  241 F.2D 575.  WE GRANTED CERTIORARI TO
CONSIDER PETITIONER'S CHALLENGE TO THE LEGALITY OF HIS ARREST AND THE
ADMISSIBILITY IN EVIDENCE OF THE NARCOTICS SEIZED FROM HIS PERSON AT
THE TIME OF THE ARREST.  355 U.S. 811. 

AGENT FINLEY OF THE FEDERAL BUREAU OF NARCOTICS OBTAINED A WARRANT
FOR THE ARREST OF PETITIONER FROM THE UNITED STATES COMMISSIONER IN
HOUSTON, TEXAS, ON JANUARY 26, 1956.  THIS WARRANT, ISSUED UNDER RULES
3 AND 4 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE (SEE NOTE 3, INFRA),
WAS BASED ON A WRITTEN COMPLAINT, SWORN TO BY FINLEY, WHICH READ IN
PART: 

"THE UNDERSIGNED COMPLAINANT (FINLEY) BEING DULY SWORN STATES:  THAT
ON OR ABOUT JANUARY 26, 1956, AT HOUSTON, TEXAS IN THE SOUTHERN
DISTRICT OF TEXAS, VETO GIORDENELLO DID RECEIVE, CONCEAL, ETC.,
NARCOTIC DRUGS, TO-WIT:  HEROIN HYDROCHLORIDE WITH KNOWLEDGE OF
UNLAWFUL IMPORTATION; IN VIOLATION OF SECTION 174, TITLE 21, UNITED
STATES CODE. 

"AND THE COMPLAINANT FURTHER STATES THAT HE BELIEVES THAT ----- ARE
MATERIAL WITNESSES IN RELATION TO THIS CHARGE." 

ABOUT 6 O'CLOCK IN THE AFTERNOON OF THE FOLLOWING DAY, JANUARY 27,
FINLEY SAW PETITIONER DRIVE UP TO HIS RESIDENCE IN A CAR AND ENTER THE
HOUSE.  HE EMERGED SHORTLY THEREAFTER AND DROVE AWAY IN THE SAME CAR,
CLOSELY FOLLOWED IN A SECOND CAR BY A PERSON DESCRIBED BY FINLEY AS A
"WELL-KNOWN POLICE CHARACTER."  FINLEY PURSUED THE CARS UNTIL THEY
STOPPED NEAR ANOTHER RESIDENCE WHICH WAS ENTERED BY PETITIONER.  WHEN
PETITIONER LEFT THIS RESIDENCE, CARRYING A BROWN PAPER BAG IN HIS HAND,
AND PROCEEDED TOWARDS HIS CAR, FINLEY EXECUTED THE ARREST WARRANT AND
SEIZED THE BAG, WHICH PROVED TO CONTAIN A MIXTURE OF HEROIN AND OTHER
SUBSTANCES.  ALTHOUGH WARNED OF HIS PRIVILEGE TO REMAIN SILENT,
PETITIONER PROMPTLY ADMITTED PURCHASING THE HEROIN IN CHICAGO AND
TRANSPORTING IT TO HOUSTON. 

ON JANUARY 28 PETITIONER APPEARED WITH COUNSEL BEFORE A UNITED STATES
COMMISSIONER.  HE WAIVED THE PRELIMINARY EXAMINATION CONTEMPLATED BY
RULE 5 OF THE RULES OF CRIMINAL PROCEDURE, SEE P. 483, INFRA, AND WAS
ARRAIGNED ON THE COMPLAINT UPON WHICH THE ARREST WARRANT HAD BEEN
ISSUED ON JANUARY 26.  (FN1)  PRIOR TO TRIAL PETITIONER, ALLEGING FOR
THE FIRST TIME THAT HIS ARREST AND THE COINCIDENT SEIZURE FROM HIS
PERSON OF THE PAPER BAG WERE ILLEGAL, MOVED TO SUPPRESS FOR USE AS
EVIDENCE THE HEROIN FOUND IN THE BAG.  THIS MOTION WAS DENIED BY THE
DISTRICT COURT, AND PETITIONER'S CONVICTION AND ITS AFFIRMANCE BY THE
COURT OF APPEALS FOLLOWED. 

IN THIS COURT PETITIONER ARGUES, AS HE DID BELOW, THAT FINLEY'S
SEIZURE OF THE HEROIN WAS UNLAWFUL, SINCE THE WARRANT OF ARREST WAS
ILLEGAL AND THE SEIZURE COULD BE JUSTIFIED ONLY AS INCIDENT TO A LEGAL
ARREST, AND THAT CONSEQUENTLY THE ADMISSION OF THE HEROIN INTO EVIDENCE
WAS ERROR WHICH REQUIRES THAT HIS CONVICTION BE SET ASIDE.  THE
GOVERNMENT CONTENDS THAT PETITIONER WAIVED HIS RIGHT TO CHALLENGE THE
LEGALITY OF HIS ARREST, AND HENCE TO OBJECT TO THE ADMISSIBILITY OF
THIS EVIDENCE, BY FAILING TO QUESTION THE SUFFICIENCY OF THE WARRANT AT
THE TIME HE WAS BROUGHT BEFORE THE UNITED STATES COMMISSIONER.  IT
FURTHER ASSERTS THAT THE ARREST WARRANT SATISFIED THE FEDERAL RULES OF
CRIMINAL PROCEDURE, AND, ALTERNATIVELY, THAT THE ARREST CAN BE
SUSTAINED APART FROM THE WARRANT BECAUSE FINLEY HAD PROBABLE CAUSE TO
BELIEVE THAT PETITIONER HAD COMMITTED A FELONY.  THE GOVERNMENT
RECOGNIZES THAT SINCE FINLEY HAD NO SEARCH WARRANT, THE HEROIN WAS
ADMISSIBLE IN EVIDENCE ONLY IF ITS SEIZURE WAS INCIDENT TO A LAWFUL
ARREST, SEE UNITED STATES V. RABINOWITZ, 339 U.S. 56, 60, AND THAT IF
THE ARREST WAS ILLEGAL THE ADMISSION OF THIS EVIDENCE WAS REVERSIBLE
ERROR. 

I. 

WE THINK IT CLEAR THAT PETITIONER, BY WAIVING PRELIMINARY EXAMINATION
BEFORE THE UNITED STATES COMMISSIONER, DID NOT SURRENDER HIS RIGHT
SUBSEQUENTLY TO CONTEST IN COURT THE VALIDITY OF THE WARRANT ON THE
GROUNDS HERE ASSERTED.  A CLAIM OF THIS NATURE MAY INVOLVE LEGAL ISSUES
OF SUBTLETY AND COMPLEXITY WHICH IT WOULD BE UNFAIR TO REQUIRE A
DEFENDANT TO PRESENT SO SOON AFTER ARREST, AND IN MANY INSTANCES, AS
HERE, BEFORE HIS FINAL SELECTION OF COUNSEL. 

IN ADDITION, EXAMINATION OF THE PURPOSE OF THE PRELIMINARY
EXAMINATION BEFORE A COMMISSIONER MAKES EVIDENT THE UNSOUNDNESS OF THE
GOVERNMENT'S POSITION.  RULE 5(C) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE PROVIDES IN PART: 

"IF FROM THE EVIDENCE IT APPEARS TO THE COMMISSIONER THAT THERE IS
PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED AND THAT
THE DEFENDANT HAS COMMITTED IT, THE COMMISSIONER SHALL FORTHWITH HOLD
HIM TO ANSWER IN THE DISTRICT COURT; OTHERWISE THE COMMISSIONER SHALL
DISCHARGE HIM." 

BY WAIVING PRELIMINARY EXAMINATION, A DEFENDANT WAIVES NO MORE THAN
THE RIGHT WHICH THIS EXAMINATION WAS INTENDED TO SECURE HIM - THE RIGHT
NOT TO BE HELD IN THE ABSENCE OF A FINDING BY THE COMMISSIONER OF
PROBABLE CAUSE THAT HE HAS COMMITTED AN OFFENSE. 

BY THE SAME TOKEN, THE COMMISSIONER HERE HAD NO AUTHORITY TO
ADJUDICATE THE ADMISSIBILITY AT PETITIONER'S LATER TRIAL OF THE HEROIN
TAKEN FROM HIS PERSON.  THAT ISSUE WAS FOR THE TRIAL COURT.  THIS IS
SPECIFICALLY RECOGNIZED BY RULE 41(E) OF THE CRIMINAL RULES, WHICH
PROVIDES THAT A DEFENDANT AGGRIEVED BY AN UNLAWFUL SEARCH AND SEIZURE
MAY "  ...  MOVE THE DISTRICT COURT  ...  TO SUPPRESS FOR USE AS
EVIDENCE ANYTHING SO OBTAINED ON THE GROUND THAT  ...  " THE ARREST
WARRANT WAS DEFECTIVE ON ANY OF SEVERAL GROUNDS.  THIS WAS THE
PROCEDURAL PATH FOLLOWED BY PETITIONER, AND WE HOLD IT PROPER TO PUT IN
ISSUE THE LEGALITY OF THE WARRANT.  CF. ALBRECHT V. UNITED STATES, 273
U.S. 1, 9-11. 

                                    II. 

PETITIONER CHALLENGES THE SUFFICIENCY OF THE WARRANT ON TWO GROUNDS:
(1) THAT THE COMPLAINT ON WHICH THE WARRANT WAS ISSUED WAS INADEQUATE
BECAUSE THE COMPLAINING OFFICER, FINLEY, RELIED EXCLUSIVELY UPON
HEARSAY INFORMATION RATHER THAN PERSONAL KNOWLEDGE IN EXECUTING THE
COMPLAINT; AND (2) THAT THE COMPLAINT WAS IN ANY EVENT DEFECTIVE IN
THAT IT IN EFFECT RECITED NO MORE THAN THE ELEMENTS OF THE CRIME
CHARGED, NAMELY THE CONCEALMENT OF HEROIN WITH KNOWLEDGE OF ITS ILLEGAL
IMPORTATION IN VIOLATION OF 21 U.S.C. SEC. 174.  (FN2) 

IT APPEARS FROM FINLEY'S TESTIMONY AT THE HEARING ON THE SUPPRESSION
MOTION THAT UNTIL THE WARRANT WAS ISSUED ON JANUARY 26 HIS SUSPICIONS
OF PETITIONER'S GUILT DERIVED ENTIRELY FROM INFORMATION GIVEN HIM BY
LAW ENFORCEMENT OFFICERS AND OTHER PERSONS IN HOUSTON, NONE OF WHOM
EITHER APPEARED BEFORE THE COMMISSIONER OR SUBMITTED AFFIDAVITS.  BUT
WE NEED NOT DECIDE WHETHER A WARRANT MAY BE ISSUED SOLELY ON HEARSAY
INFORMATION, FOR IN ANY EVENT WE FIND THIS COMPLAINT DEFECTIVE IN NOT
PROVIDING A SUFFICIENT BASIS UPON WHICH A FINDING OF PROBABLE CAUSE
COULD BE MADE. 

CRIMINAL RULES 3 AND 4 PROVIDE THAT AN ARREST WARRANT SHALL BE ISSUED
ONLY UPON A WRITTEN AND SWORN COMPLAINT (1) SETTING FORTH "THE
ESSENTIAL FACTS CONSTITUTING THE OFFENSE CHARGED," AND (2) SHOWING
"THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT SUCH AN OFFENSE HAS BEEN
COMMITTED AND THAT THE DEFENDANT HAS COMMITTED IT  ...  ."  (FN3)  THE
PROVISIONS OF THESE RULES MUST BE READ IN LIGHT OF THE CONSTITUTIONAL
REQUIREMENTS THEY IMPLEMENT.  THE LANGUAGE OF THE FOURTH AMENDMENT,
THAT " ...  NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED
BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING  ...  THE PERSONS
OR THINGS TO BE SEIZED," OF COURSE APPLIES TO ARREST AS WELL AS SEARCH
WARRANTS.  SEE EX PARTE BURFORD, 3 CRANCH 448; MCGRAIN V. DAUGHERTY,
273 U.S. 135, 154-157.  THE PROTECTION AFFORDED BY THESE RULES, WHEN
THEY ARE VIEWED AGAINST THEIR CONSTITUTIONAL BACKGROUND, IS THAT THE
INFERENCES FROM THE FACTS WHICH LEAD TO THE COMPLAINT "  ...  BE DRAWN
BY A NEUTRAL AND DETACHED MAGISTRATE INSTEAD OF BEING JUDGED BY THE
OFFICER ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING OUT
CRIME."  JOHNSON V. UNITED STATES, 333 U.S. 10, 14.  THE PURPOSE OF THE
COMPLAINT, THEN, IS TO ENABLE THE APPROPRIATE MAGISTRATE, HERE A
COMMISSIONER, TO DETERMINE WHETHER THE "PROBABLE CAUSE" REQUIRED TO
SUPPORT A WARRANT EXISTS.  THE COMMISSIONER MUST JUDGE FOR HIMSELF THE
PERSUASIVENESS OF THE FACTS RELIED ON BY A COMPLAINING OFFICER TO SHOW
PROBABLE CAUSE.  HE SHOULD NOT ACCEPT WITHOUT QUESTION THE
COMPLAINANT'S MERE CONCLUSION THAT THE PERSON WHOSE ARREST IS SOUGHT
HAS COMMITTED A CRIME. 

WHEN THE COMPLAINT IN THIS CASE IS JUDGED WITH THESE CONSIDERATIONS
IN MIND, IT IS CLEAR THAT IT DOES NOT PASS MUSTER BECAUSE IT DOES NOT
PROVIDE ANY BASIS FOR THE COMMISSIONER'S DETERMINATION UNDER RULE 4
THAT PROBABLE CAUSE EXISTED.  THE COMPLAINT CONTAINS NO AFFIRMATIVE
ALLEGATION THAT THE AFFIANT SPOKE WITH PERSONAL KNOWLEDGE OF THE
MATTERS CONTAINED THEREIN; IT DOES NOT INDICATE ANY SOURCES FOR THE
COMPLAINANT'S BELIEF; AND IT DOES NOT SET FORTH ANY OTHER SUFFICIENT
BASIS UPON WHICH A FINDING OF PROBABLE CAUSE COULD BE MADE.  WE THINK
THESE DEFICIENCIES COULD NOT BE CURED BY THE COMMISSIONER'S RELIANCE
UPON A PRESUMPTION THAT THE COMPLAINT WAS MADE ON THE PERSONAL
KNOWLEDGE OF THE COMPLAINING OFFICER.  THE INSUBSTANTIALITY OF SUCH AN
ARGUMENT IS ILLUSTRATED BY THE FACTS OF THIS VERY CASE, FOR FINLEY'S
TESTIMONY AT THE SUPPRESSION HEARING CLEARLY SHOWED THAT HE HAD NO
PERSONAL KNOWLEDGE OF THE MATTERS ON WHICH HIS CHARGE WAS BASED.  IN
THESE CIRCUMSTANCES, IT IS DIFFICULT TO UNDERSTAND HOW THE COMMISSIONER
COULD BE EXPECTED TO ASSESS INDEPENDENTLY THE PROBABILITY THAT
PETITIONER COMMITTED THE CRIME CHARGED.  INDEED, IF THIS COMPLAINT WERE
UPHELD, THE SUBSTANTIVE REQUIREMENTS WOULD BE COMPLETELY READ OUT OF
RULE 4, AND THE COMPLAINT WOULD BE OF ONLY FORMAL SIGNIFICANCE,
ENTITLED TO PERFUNCTORY APPROVAL BY THE COMMISSIONER.  THIS WOULD NOT
COMPORT WITH THE PROTECTIVE PURPOSES WHICH A COMPLAINT IS DESIGNED TO
ACHIEVE. 

IT DOES NOT AVAIL THE GOVERNMENT TO ARGUE THAT BECAUSE A WARRANT OF
ARREST MAY BE ISSUED AS OF COURSE UPON AN INDICTMENT, THIS COMPLAINT
WAS ADEQUATE SINCE ITS ALLEGATIONS WOULD SUFFICE FOR AN INDICTMENT
UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 7(C).  A WARRANT OF ARREST CAN
BE BASED UPON AN INDICTMENT BECAUSE THE GRAND JURY'S DETERMINATION THAT
PROBABLE CAUSE EXISTED FOR THE INDICTMENT ALSO ESTABLISHES THAT ELEMENT
FOR THE PURPOSE OF ISSUING A WARRANT FOR THE APPREHENSION OF THE PERSON
SO CHARGED.  HERE, IN THE ABSENCE OF AN INDICTMENT, THE ISSUE OF
PROBABLE CAUSE HAD TO BE DETERMINED BY THE COMMISSIONER, AND AN
ADEQUATE BASIS FOR SUCH A FINDING HAD TO APPEAR ON THE FACE OF THE
COMPLAINT. 

                                      III. 

IN THE TWO LOWER COURTS THE GOVERNMENT DEFENDED THE LEGALITY OF
PETITIONER'S ARREST BY RELYING ENTIRELY ON THE VALIDITY OF THE
WARRANT.  (FN4)  IN THIS COURT, HOWEVER, ITS PRINCIPAL CONTENTION HAS
BEEN THAT THE ARREST WAS JUSTIFIED APART FROM THE WARRANT.  THE
ARGUMENT IS THAT TEXAS LAW PERMITS ARREST WITHOUT A WARRANT UPON
PROBABLE CAUSE THAT THE PERSON ARRESTED HAS COMMITTED A FELONY; THAT IN
THE ABSENCE OF A CONTROLLING FEDERAL STATUTE, AS IN THE CASE HERE,
FEDERAL OFFICERS TURN TO THE LAW OF THE STATE WHERE AN ARREST IS MADE
AS THE SOURCE OF THEIR AUTHORITY TO ARREST WITHOUT A WARRANT, CF.
UNITED STATES V. DI RE, 332 U.S. 581, 589; JOHNSON V. UNITED STATES,
SUPRA, AT 15; AND THAT FINLEY, ON THE BASIS OF THE FACTS HE TESTIFIED
TO BEFORE THE DISTRICT COURT, MUST BE DEEMED, WITHIN THE STANDARDS OF
TEXAS LAW, TO HAVE HAD THE PROBABLE CAUSE NECESSARY TO ARREST
PETITIONER WITHOUT A WARRANT. 

WE DO NOT THINK THAT THESE BELATED CONTENTIONS ARE OPEN TO THE
GOVERNMENT IN THIS COURT AND ACCORDINGLY WE HAVE NO OCCASION TO
CONSIDER THEIR SOUNDNESS.  TO PERMIT THE GOVERNMENT TO INJECT ITS NEW
THEORY INTO THE CASE AT THIS STAGE WOULD UNFAIRLY DEPRIVE PETITIONER OF
AN ADEQUATE OPPORTUNITY TO RESPOND.  THIS IS SO BECAUSE IN THE DISTRICT
COURT PETITIONER, BEING ENTITLED TO ASSUME THAT THE WARRANT CONSTITUTED
THE ONLY PURPORTED JUSTIFICATION FOR THE ARREST, HAD NO REASON TO CROSS
EXAMINE FINLEY OR TO ADDUCE EVIDENCE OF HIS OWN TO REBUT THE
CONTENTIONS THAT THE GOVERNMENT MAKES HERE FOR THE FIRST TIME. 

NOR DO WE THINK THAT IT WOULD BE SOUND JUDICIAL ADMINISTRATION TO
SEND THE CASE BACK TO THE DISTRICT COURT FOR A SPECIAL HEARING ON THE
ISSUE OF PROBABLE CAUSE WHICH WOULD DETERMINE WHETHER THE VERDICT OF
GUILTY AND THE JUDGMENT ALREADY ENTERED SHOULD BE ALLOWED TO STAND. 
THE FACTS ON WHICH THE GOVERNMENT NOW RELIES TO UPHOLD THE ARREST WERE
FULLY KNOWN TO IT AT THE TIME OF TRIAL, AND THERE ARE NO SPECIAL
CIRCUMSTANCES SUGGESTING SUCH AN EXCEPTIONAL COURSE.  CF. UNITED STATES
V. SHOTWELL MFG. CO., 355 U.S. 233.  THIS IS NOT TO SAY, HOWEVER, THAT
IN THE EVENT OF A NEW TRIAL THE GOVERNMENT MAY NOT SEEK TO JUSTIFY
PETITIONER'S ARREST WITHOUT RELYING ON THE WARRANT.    WE HOLD THAT THE
SEIZURE IN THIS CASE WAS ILLEGAL, THAT THE SEIZED NARCOTICS SHOULD
THEREFORE NOT HAVE BEEN ADMITTED INTO EVIDENCE, AND THAT PETITIONER'S
CONVICTION ACCORDINGLY MUST BE SET ASIDE.  THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED. 

FN1  THE INDICTMENT RETURNED AGAINST PETITIONER DID NOT REFER TO THE
CRIME CHARGED IN THE COMPLAINT BUT WAS BASED ON TWO RELATED OFFENSES. 
ONE, CHARGING POSSESSION OF UNLAWFULLY IMPORTED NARCOTICS, 21 U.S.C.
SEC. 174, WAS DROPPED BY THE GOVERNMENT PRIOR TO TRIAL.  THE OTHER,
CHARGING UNLAWFUL PURCHASE OF NARCOTICS, 26 U.S.C. (SUPP. V) SEC. 4704,
RESULTED IN PETITIONER'S CONVICTION.    FN2  IT APPEARS THAT IN THE
COURTS BELOW PETITIONER RELIED PRIMARILY, IF NOT ENTIRELY, ON THE FIRST
OF THESE GROUNDS.  THAT OF COURSE DOES NOT PREVENT HIM FROM RELYING
HERE ALSO ON THE SECOND GROUND, WHICH RAISES SIMPLY A QUESTION OF LAW
AS TO THE SUFFICIENCY OF THE COMPLAINT.  SEE UNITED BROTHERHOOD OF
CARPENTERS V. UNITED STATES, 330 U.S. 395, 412; WEEMS V. UNITED STATES,
217 U.S. 349, 362; FED. RULES CRIM. PROC., RULE 52(B). 

FN3  RULE 3:  "THE COMPLAINT IS A WRITTEN STATEMENT OF THE ESSENTIAL
FACTS CONSTITUTING THE OFFENSE CHARGED.  IT SHALL BE MADE UPON OATH
BEFORE A COMMISSIONER OR OTHER OFFICER EMPOWERED TO COMMIT PERSONS
CHARGED WITH OFFENSES AGAINST THE UNITED STATES." 

RULE 4 (A):  "  ...  IF IT APPEARS FROM THE COMPLAINT THAT THERE IS
PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED AND THAT
THE DEFENDANT HAS COMMITTED IT, A WARRANT FOR THE ARREST OF THE
DEFENDANT SHALL ISSUE TO ANY OFFICER AUTHORIZED BY LAW TO EXECUTE IT
...  ." 

FN4  THE GOVERNMENT ASKED THE DISTRICT COURT TO TAKE JUDICIAL NOTICE
THAT PETITIONER WAS ARRESTED ON A "COMPLAINT AND WARRANT."  IN
ADDITION, FINLEY'S TESTIMONY AND THE "RETURN" OF THE UNITED STATES
MARSHAL TO THE WARRANT LEAVE NO ROOM FOR DOUBT THAT IN FACT THE WARRANT
CONSTITUTED THE BASIS FOR PETITIONER'S ARREST. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON AND MR. JUSTICE
WHITTAKER CONCUR, DISSENTING. 

I AGREE THAT PETITIONER DID NOT WAIVE HIS RIGHT TO ATTACK THE
COMPLAINT BY HIS WAIVER OF PRELIMINARY EXAMINATION.  BUT I CANNOT AGREE
TO OTHER CONCLUSIONS OF THE COURT WHICH, FOR ALL PRACTICAL PURPOSES,
FREE ANOTHER NARCOTICS PEDDLER, THIS TIME ON THE GROUND THAT THE
COMPLAINT DID NOT PROVIDE "A SUFFICIENT BASIS UPON WHICH A FINDING OF
PROBABLE CAUSE COULD BE MADE." 

THE COMPLAINT STATED THAT PETITIONER "ON OR ABOUT JANUARY 26, 1956,
AT HOUSTON, TEXAS  ...  DID RECEIVE, CONCEAL, ETC., NARCOTIC DRUGS, TO
WIT:  HEROIN HYCROCHLORIDE WITH KNOWLEDGE OF UNLAWFUL IMPORTATION,"
CITING THE STATUTE VIOLATED.  PETITIONER CONTENDS THAT THESE
ALLEGATIONS DID NOT MEET THE "ESSENTIAL FACTS" REQUIREMENT OF RULE 3 OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE.  THE COURT DOES NOT PASS ON
THIS CONTENTION, BUT INSTEAD REVERSES ON RULE 4, REASONING THAT THE
COMPLAINT WAS DEFICIENT BECAUSE IT CONTAINED "NO AFFIRMATIVE ALLEGATION
THAT THE AFFIANT SPOKE WITH PERSONAL KNOWLEDGE OF THE MATTERS CONTAINED
THEREIN; (DID) NOT INDICATE ANY SOURCES FOR THE COMPLAINTANT'S BELIEF;
AND (DID) NOT SET FORTH ANY OTHER SUFFICIENT BASIS UPON WHICH A FINDING
OF PROBABLE CAUSE COULD BE MADE."  I NOTE THAT PETITIONER, IN HIS 39
PAGE BRIEF, DOES NOT RELY ON RULE 4, SATISFYING HIMSELF WITH
CONTENTIONS UNDER RULE 3. 

THE COURT IS ENTIRELY IN ERROR IN ADVANCING THE RULE 4 GROUND.  THE
COMPLAINT ALLEGED AN ACTUAL OCCURRENCE WHICH UNDER THE LAW CONSTITUTED
A PRIMA FACIE OFFENSE - POSSESSION OF NARCOTICS.  UNLAWFUL IMPORTATION
IS PRESUMED.  35 STAT. 614, AS AMENDED, 21 U.S.C.  SEC. 174.  SEE CASEY
V. UNITED STATES, 276 U.S. 413 (1928).  PETITIONER'S CONTENTION IS THAT
THE COMPLAINT IMPORTED PERSONAL KNOWLEDGE WHEN IN FACT IT WAS BASED IN
PART ON INFORMATION.  IT THUS APPEARS STRANGE FOR THE COURT TO SAY THAT
"DEFICIENCIES" IN THE COMPLAINT "COULD NOT BE CURED BY THE
COMMISSIONER'S RELIANCE UPON A PRESUMPTION  ...  (OF) PERSONAL
KNOWLEDGE."  IMPLICIT IN PETITIONER'S ENTIRE ARGUMENT IS THE FACT THAT
NO PRESUMPTION WAS INDULGED.  THE COMPLAINT WAS POSITIVE AND ABSOLUTE
IN ALLEGING THAT PETITIONER ON A CERTAIN DAY AND AT A SPECIFIC PLACE
"DID RECEIVE (AND) CONCEAL" HEROIN.  THEREFORE, THE COURT'S FIRST
OBJECTION, I.E., ABSENCE OF AN ALLEGATION OF PERSONAL KNOWLEDGE, IS
MANIFESTLY UNTENABLE.  AS TO THE SECOND, CONCERNING "SOURCES FOR THE
COMPLAINANT'S BELIEF," THAT IS SOMETHING NEVER REQUIRED IN A
COMPLAINT.  IN FACT, AS THE COURT WELL KNOWS, SOURCES ARE CONSIDERED
CONFIDENTIAL IN NARCOTICS CASES AND DIVULGENCE IS SELDOM REQUIRED. 
SUCH A REQUIREMENT IS A WHOLLY UNNECESSARY AND UNWARRANTED EXTENSION OF
RULE 4.  FINALLY, THE CATCHALL OBJECTION THAT THE COMPLAINT DID "NOT
SET FORTH ANY OTHER SUFFICIENT BASIS" CONSTITUTING PROBABLE CAUSE
OVERLOOKS THE FACT THAT AGENT FINLEY DIRECTLY AND EXPLICITLY STATED
UNDER OATH THAT PETITIONER "DID RECEIVE (AND) CONCEAL" HEROIN.  IT
THEREFORE FOLLOWS AS THE NIGHT DOES THE DAY THAT "PROBABLE CAUSE"
EXISTED, AND THE COMMISSIONER HAD NO RECOURSE OTHER THAN TO ISSUE THE
WARRANT.  NEITHER THE COURT NOR PETITIONER POINTS OUT WHAT MORE MUST BE
ALLEGED. 

THE CAVEAT THAT THE COMMISSIONER "SHOULD NOT ACCEPT WITHOUT QUESTION
THE COMPLAINANT'S MERE CONCLUSION" IS NOT APPLICABLE HERE.  IF THE
STATEMENT THAT PETITIONER DID "RECEIVE" AND "CONCEAL" NARCOTIC DRUGS IS
A CONCLUSION, IT IS ALSO A FACT.  UNLIKE OTHER CRIMINAL OFFENSES,
NARCOTICS VIOLATIONS REQUIRE NO SPECIFIC INTENT, AND THERE IS NO NEED
TO SPELL OUT FACTS TENDING TO SHOW SUCH INTENT.  THE DISTINCTION THE
COURT DRAWS BETWEEN CONCLUSIONS AND FACTS IS UNTENABLE BECAUSE THERE IS
NO NEED HERE FOR INFERENCES, UNLIKE ORDINARY CRIMINAL CASES.  IF THE
ACCUSED HAS "POSSESSION" HE HAS COMMITTED AN OFFENSE, ABSENT
SATISFACTORY EXPLANATION THEREFOR.  AND CERTAINLY ONE CANNOT "RECEIVE"
AND "CONCEAL" WITHOUT HAVING "POSSESSION." 

RELATING THE PURPOSE SERVED BY A COMPLAINT TO THAT OF AN APPLICATION
FOR A SEARCH WARRANT, AS THE COURT DOES HERE, CITING JOHNSON V. UNITED
STATES, 333 U.S. 10 (1948), IS MOST UNFORTUNATE.  THE OBLITERATION OF
VALID DISTINCTIONS BETWEEN THE TWO CAN HAVE LITTLE EFFECT ON NARCOTICS
CASES, BECAUSE SUBSEQUENT TO THE ARREST HERE THE CONGRESS AUTHORIZED
OFFICERS TO MAKE ARRESTS WITHOUT A WARRANT WHERE THERE ARE "REASONABLE
GROUNDS TO BELIEVE THAT THE PERSON TO BE ARRESTED HAS COMMITTED OR IS
COMMITTING" A NARCOTICS OFFENSE.  70 STAT. 570, 26 U.S.C. (SUPP. V)
SEC. 7607.  BUT IN OTHER FIELDS OF CRIMINAL LAW ENFORCEMENT IT
INCREASES THE GREAT BURDEN ALREADY PLACED ON OFFICERS AND, LIKE THE
REQUIREMENT AS TO "SOURCES" AND "OTHER EVIDENTIARY FACTS," ONLY
BECLOUDS WHAT WAS CLEAR AS TO THE REQUISITES OF A COMPLAINT.  THE
CONSIDERATIONS UNDERLYING ARREST ARE NOT APPOSITE TO THOSE OF SEARCH. 
AS WE HAVE SEEN, ARRESTS CAN BE MADE IN NARCOTICS CASES WITHOUT A
WARRANT WHERE "REASONABLE GROUNDS" ARE PRESENT.  PRIOR TO THIS FEDERAL
ACT, STATE LAW WAS APPLICABLE AND IN TEXAS PERMITTED ARRESTS WITHOUT A
WARRANT ON "PROBABLE CAUSE" TO BELIEVE A NARCOTICS OFFENSE HAD BEEN
COMMITTED.  SEE GIACONA V. STATE, 164 TEX. CR. R. 325, 326, 327, 298
S.W.2D 587, 588-589; THOMAS V. STATE, 163 TEX. CR. R. 68, 69-70, 288
S.W.2D 791, 792.  SEARCH WARRANTS, ON THE OTHER HAND, ARE REQUIRED BY
THE FOURTH AMENDMENT "NOTWITHSTANDING FACTS UNQUESTIONABLY SHOWING
PROBABLE CAUSE."  AGNELLO V. UNITED STATES, 269 U.S. 20, 33 (1925).*
THE COURT DOES NOT STRIKE DOWN THIS COMPLAINT DIRECTLY ON THE FOURTH
AMENDMENT, BUT MERELY ON AN EXTENSION OF RULE 4.  IT IS UNFORTUNATE
THAT THROUGH THIS BYPLAY THE CONSTITUTIONAL LIMITATIONS SURROUNDING
SEARCH AND SEIZURE ARE EXTENDED TO THE LONG-RECOGNIZED POWERS OF
ARREST. 

*SEARCHES INCIDENT TO THE VALID ARREST ARE, OF COURSE, EXCEPTED. 

UNTIL PETITIONER CAME HERE HE IN NO WAY ATTACKED THE COMPLAINT ON THE
GROUND THAT IT "RECITED NO MORE THAN THE ELEMENTS OF THE CRIME
CHARGED."  THE COURT ADMITS AS MUCH.  SEE FOOTNOTE 2 IN THE MAJORITY
OPINION.  NEVERTHELESS, IN THE FACE OF THIS ADMISSION AND WITHOUT
EITHER OF THE PARTIES DEPENDING ON RULE 4, MUCH LESS BRIEFING AND
ARGUING IT, THE COURT STRIKES DOWN THIS CONVICTION ON THAT GROUND.  IN
THE SAME BREATH IT TAGS AS "BELATED" AND REFUSES ON THAT ACCOUNT TO
PASS ON THE UNANSWERABLE POSITION OF THE GOVERNMENT, WHICH WAS FULLY
BRIEFED AND ARGUED, THAT THE ARREST MAY BE UPHELD UNDER STATE LAW,
UNITED STATES V. DI RE, 332 U.S. 581, 589 (1948), AS ONE ON PROBABLE
CAUSE WITHOUT A WARRANT.  UNITED STATES V. RABINOWITZ, 339 U.S. 56, 60
(1950).  I CANNOT SUBSCRIBE TO SUCH A DOUBLE STANDARD.  I ASK, HOW IN
FAIRNESS CAN THE COURT CONSIDER AND DECIDE THE CASE ON A POINT NOT
RELIED ON BELOW BY PETITIONER AND AT THE SAME TIME THROW OUT THE
GOVERNMENT'S CLAIM AS BELATED?  AND PARTICULARLY SO SINCE THE COURT OF
APPEALS RECOGNIZED THAT CLAIM IN THIS LANGUAGE: 

"MOREOVER, THERE WAS ENOUGH IN THE RECORD TO MAKE IT CLEAR THAT AN
HONEST OFFICIAL MIGHT WELL HAVE THOUGHT HE WAS FULLY OBSERVING THE
LEGAL RESTRAINTS PLACED UPON HIS ACTIONS, AND THAT HE HAD GOOD CAUSE
FOR ARREST EVEN IF THE WARRANT ALREADY OBTAINED WAS INVALID SINCE HE
BELIEVED HE SAW A FELONY BEING COMMITTED IN HIS PRESENCE  ... ."  241
F.2D 575, 579. 

BUT ASSUMING THAT THE CLAIM IS BELATED, IT STATES THE LAW AND OUR
DUTY IS TO APPLY IT.  SUCH PURBLINDNESS MAY SET PETITIONER FREE, BUT IT
SHACKLES LAW ENFORCEMENT.  I DISSENT. 
..END :
























JONES V. UNITED STATES 357 U.S. 493 


NO. 331.  ARGUED APRIL 7-8, 1958 - DECIDED JUNE 30, 1958 - 245 F.2D 32,
REVERSED. 


HAVING GOOD REASON TO BELIEVE THAT IT SHELTERED AN ILLICIT DISTILLERY,
A FEDERAL OFFICER OBTAINED A DAYTIME SEARCH WARRANT FOR PETITIONER'S
HOME BUT OBTAINED NO WARRANT FOR HIS ARREST.  AFTER DARK AND WITHOUT
USING THE SEARCH WARRANT, BUT WITH GOOD REASONS TO BELIEVE THAT LIQUOR
WAS BEING ILLEGALLY DISTILLED IN THE HOUSE, FEDERAL OFFICERS FORCED
THEIR WAY INTO THE HOUSE AND, WITHOUT ARRESTING ANYONE THERE AT THE
TIME, SEIZED DISTILLING EQUIPMENT.  PETITIONER WAS THEN ABSENT, AND HE
WAS NOT ARRESTED UNTIL HE RETURNED TO THE HOUSE AN HOUR LATER.  AT
PETITIONER'S TRIAL IN A FEDERAL COURT, THE DISTILLING EQUIPMENT WAS
ADMITTED IN EVIDENCE OVER HIS OBJECTION, AND HE WAS CONVICTED OF
VIOLATIONS OF FEDERAL LIQUOR LAWS.  HELD:  THE SEARCH AND SEIZURE
VIOLATED THE FOURTH AMENDMENT, FOR THEY CANNOT BE JUSTIFIED ON THE
GROUND THAT THE OFFICERS HAD PROBABLE CAUSE TO BELIEVE THAT THE HOUSE
CONTAINED CONTRABAND MATERIALS; AND THE ADMISSION OF EVIDENCE SO SEIZED
VITIATED THE CONVICTION.  PP. 494-500. 

(A)  PROBABLE CAUSE FOR BELIEF THAT CERTAIN ARTICLES SUBJECT TO
SEIZURE ARE IN A HOME CANNOT OF ITSELF JUSTIFY A SEARCH WITHOUT A
WARRANT.  PP. 497-499. 

(B)  UNITED STATES V. RABINOWITZ, 339 U.S. 56, DISTINGUISHED.  P.
499. 

(C)  THE ISSUE WHETHER THE SEARCH AND SEIZURE WERE JUSTIFIED AS
INCIDENT TO PETITIONER'S LAWFUL ARREST IS NOT FAIRLY PRESENTED IN THIS
CASE, FOR THE TESTIMONY OF THE FEDERAL OFFICERS MAKES CLEAR THAT THEIR
PURPOSE IN ENTERING THE HOUSE WAS TO SEARCH FOR THE DISTILLING
EQUIPMENT, NOT TO ARREST PETITIONER.  PP. 499-500. 

JONES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

AFTER A TRIAL WITHOUT A JURY IN THE FEDERAL DISTRICT COURT FOR THE
NORTHERN DISTRICT OF GEORGIA, PETITIONER WAS FOUND GUILTY OF VARIOUS
VIOLATIONS OF THE FEDERAL LIQUOR LAWS, STEMMING FROM AND INCLUDING THE
POSSESSION OF AN UNREGISTERED STILL.  SEE 26 U.S.C.  (SUPP. V) SECS.
5601, 5216, 5008, 5681.  HIS CLAIM IS THAT SOME OF THE EVIDENCE USED
AGAINST HIM AT THE TRIAL SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS
OBTAINED BY AN UNLAWFUL SEARCH AND SEIZURE BY FEDERAL OFFICERS, AND
THAT ITS ADMISSION VITIATES HIS CONVICTION.  THE IMPORTANCE OF
MAINTAINING STRICT STANDARDS FOR THE ADMISSIBILITY OF EVIDENCE SO
CHALLENGED IN THE FEDERAL COURTS LED US TO GRANT CERTIORARI.  355 U.S.
810. 

FEDERAL ALCOHOL AGENTS RECEIVED INFORMATION ON APRIL 30, 1956, THAT
PETITIONER'S FARMHOUSE NEAR DAWSONVILLE, GEORGIA, WAS THE SITE OF AN
ILLICIT DISTILLERY IN CURRENT OPERATION.  INVESTIGATING THIS LEAD, THE
AGENTS DISCOVERED SPENT MASH, A PRODUCT RESULTING FROM THE DISTILLING
OF ALCOHOL OUT OF MASH, IN A HOLLOW BEHIND PETITIONER'S HOUSE.  THE
RUNNING MASH EMERGED FROM A CONCEALED RUBBER HOSE WHICH, WHEN TRACED AS
FAR AS WAS CONSISTENT WITH CAUTION, LED CLOSE TO PETITIONER'S HOME.  ON
MAY 1, FOUR FEDERAL AGENTS AND ONE STATE OFFICER RETURNED TO THIS
VICINITY.  THE OFFICERS OBSERVED MASH STILL EMERGING FROM THE HOSE,
DETECTED THE DISTINCTIVE ODOR OF HOT MASH FROM THE DIRECTION OF THE
HOUSE, AND HEARD COMING FROM WITHIN THE HOUSE THE SOUNDS OF VOICES AND
OF A BLOWER BURNER, COMMONLY USED IN THAT AREA TO HEAT DISTILLERIES. 

AT 2 A.M. ON MAY 2, THE OFFICERS ABANDONED THEIR WATCH AND RETURNED
TO THE NEARBY CITY OF GAINESVILLE.  DURING THE DAY, FEDERAL AGENT
LANGFORD OBTAINED FROM THE UNITED STATES COMMISSIONER THERE A DAYTIME
SEARCH WARRANT FOR PETITIONER'S HOUSE ON THE BASIS OF AN AFFIDAVIT
DESCRIBING WHAT HAD BEEN DISCOVERED AND ASSERTING THE OFFICER'S BELIEF
THAT THE HOUSE SHELTERED AN ILLICIT DISTILLERY.  LATE THAT AFTERNOON,
BUT STILL IN DAYLIGHT, THE FIVE OFFICERS RESUMED THEIR SURVEILLANCE OF
THE HOUSE.  RATHER THAN EXECUTE THE DAYTIME WARRANT AT ONCE, THEY
DECIDED TO MAKE FURTHER OBSERVATIONS TO DETERMINE WHICH PARTIES WERE
IMPLICATED IN THE OPERATIONS AND WHETHER ANY VEHICLES WERE BEING USED. 

ABOUT 9 P.M., AFTER DARKNESS HAD SET IN, A TRUCK ENTERED PETITIONER'S
YARD AND RETREATED OUT OF THE OFFICERS' SIGHT BEHIND THE HOUSE.  LOUD
NOISES WERE HEARD, AND WHEN THE TRUCK SHORTLY THEREAFTER SOUGHT TO
REGAIN THE PUBLIC ROAD IN FRONT OF THE HOUSE, IT BECAME STUCK IN
PETITIONER'S DRIVEWAY.  THE OFFICERS ARRESTED THE TWO MEN IN THE TRUCK
AND SEIZED WHAT TURNED OUT TO BE 413 GALLONS OF NONTAXPAID LIQUOR.  AT
THAT TIME A PASSENGER CAR CARRYING PETITIONER'S WIFE AND CHILDREN DROVE
INTO THE YARD.  THE WIFE RUSHED TO THE HOUSE AND REACHED THE DOORWAY
BEFORE THE FEDERAL OFFICERS WHO WERE THEN ADVANCING TOWARDS IT.  SHE
SOUGHT TO BLOCK ENTRY BY PLACING HER ARMS ACROSS THE DOOR, AND WHEN
INFORMED BY LANGFORD OF HIS IDENTITY AS A FEDERAL OFFICER, SHE DEMANDED
TO SEE HIS SEARCH WARRANT.  LANGFORD SAID THAT A WARRANT WAS NOT
REQUIRED, AND THE OFFICERS BRUSHED PAST MRS. JONES INTO THE HOUSE,
SEIZING FROM THE HANDS OF HER YOUNG BOY A SHOTGUN WHICH HE WAS
BRANDISHING IN AN APPARENT EFFORT TO PREVENT ENTRY. 

IN THE HOUSE AT THAT TIME, IN ADDITION TO MRS. JONES AND THE
CHILDREN, WERE PETITIONER'S FATHER AND BROTHER.  THE OFFICERS DID NOT
ARREST ANY OF THEM, BUT IMMEDIATELY ENGAGED IN A GENERAL SEARCH OF THE
HOUSE.  THE EVIDENCE LATER ADMITTED AGAINST PETITIONER AT THE TRIAL,
INCLUDING A BOILER, FUEL BURNER, AND 15 BARRELS, WAS SEIZED IN REAR
ROOMS AND IN THE ATTIC.  PETITIONER WAS ARRESTED WHEN HE RETURNED TO
HIS HOUSE ABOUT ONE HOUR AFTER THE SEARCH HAD BEEN COMPLETED. 

PETITIONER MOVED BEFORE TRIAL TO SUPPRESS THE USE IN EVIDENCE OF THE
ARTICLES SEIZED IN HIS HOME.  DURING THE HEARING ON THIS MOTION, THE
GOVERNMENT CONCEDED THAT BY THE TIME PETITIONER'S HOUSE WAS SEARCHED
THE DAYTIME SEARCH WARRANT HAD EXPIRED, AND IT DISCLAIMED ANY INTENTION
ON THE PART OF THE FEDERAL OFFICERS TO EXECUTE IT.  RATHER IT URGED
THAT "  ...  IT IS THE REASONABLENESS OF THE SEARCH WHICH IS UNDER
QUESTIONS."  FEDERAL AGENT EVANS TESTIFIED THAT HE THOUGHT A NIGHTTIME
SEARCH WARRANT COULD BE DISPENSED WITH BECAUSE "  ...  THE CRIME WAS
BEING COMMITTED IN OUR PRESENCE, AT LEAST I ASSUMED WE HAD PROBABLE
CAUSE FOR THAT."  (FN1)  AND AGENT LANGFORD EXPLAINED HIS POSITION BY
STATING:  "  ...  I THOUGHT WE HAD SUFFICIENT EVIDENCE TO GO IN THE
PREMISES WITHOUT A SEARCH WARRANT."  (FN2)  THE COURT, IN DENYING THE
MOTION TO SUPPRESS, ENTERED FINDINGS OF FACT AND CONCLUSIONS OF LAW
WHEREIN IT STATED: 

"THE COURT FINDS THAT THE FACTS AND CIRCUMSTANCES WITHIN THE
KNOWLEDGE OF THE OFFICERS WERE SUFFICIENT IN THEMSELVES TO WARRANT A
MAN OF REASONABLE CAUTION IN THE BELIEF THAT AN OFFENSE WAS BEING
COMMITTED AND THEREFORE THE COURT FINDS THAT PROBABLE CAUSE FOR THE
SEARCH EXISTED AT THE TIME THE SEARCH WAS MADE." 

SINCE THIS WAS SO, AND SINCE "  ...  A CAUTIOUS MAN (WOULD HAVE BEEN
WARRANTED) IN THE BELIEF THAT (PETITIONER) WAS GUILTY OF THE OFFENSE OF
OPERATING AN ILLICIT DISTILLERY IN HIS HOME  ...  ," THE COURT DEEMED
THE SEARCH REASONABLE, AND HENCE JUSTIFIED, DESPITE THE FAILURE OF THE
OFFICERS TO OBTAIN A NIGHTTIME WARRANT, AND DESPITE THEIR ABILITY,
UNDER THE CIRCUMSTANCES, TO HAVE SOUGHT A WARRANT BEFORE ENTERING THE
HOUSE.  IN SO HOLDING, THE DISTRICT COURT RELIED UPON UNITED STATES V.
RABINOWITZ, 339 U.S. 56.  THE COURT OF APPEALS AFFIRMED ON THE BASIS OF
THE FINDINGS OF THE DISTRICT JUDGE.  245 F.2D 32. 

ALTHOUGH IT MUST BE RECOGNIZED THAT THE BASIS OF THE TWO LOWER COURT
DECISIONS IS NOT WHOLLY FREE FROM AMBIGUITY, A CAREFUL CONSIDERATION OF
THE RECORD SATISFIES US THAT THE SEARCH AND SEIZURE WERE CONSIDERED TO
HAVE BEEN JUSTIFIED BECAUSE THE OFFICERS HAD PROBABLE CAUSE TO BELIEVE
THAT PETITIONER'S HOUSE CONTAINED CONTRABAND MATERIALS WHICH WERE BEING
UTILIZED IN THE COMMISSION OF A CRIME, AND NOT BECAUSE THE SEARCH AND
SEIZURE WERE INCIDENT TO PETITIONER'S ARREST.  SO VIEWED THE JUDGMENTS
BELOW CANNOT BE SQUARED WITH THE FOURTH AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES (FN3) AND WITH THE PAST DECISIONS OF THIS COURT. 

IT IS SETTLED DOCTRINE THAT PROBABLE CAUSE FOR BELIEF THAT CERTAIN
ARTICLES SUBJECT TO SEIZURE ARE IN A DWELLING CANNOT OF ITSELF JUSTIFY
A SEARCH WITHOUT A WARRANT.  AGNELLO V. UNITED STATES, 269 U.S. 20, 33;
(FN4) TAYLOR V. UNITED STATES, 286 U.S. 1, 6.  THE DECISIONS OF THIS
COURT HAVE TIME AND AGAIN UNDERSCORED THE ESSENTIAL PURPOSE OF THE
FOURTH AMENDMENT TO SHIELD THE CITIZEN FROM UNWARRANTED INTRUSIONS INTO
HIS PRIVACY.  SEE, E.G., JOHNSON V. UNITED STATES, 333 U.S. 10, 14;
MCDONALD V. UNITED STATES, 335 U.S. 451, 455; CF. GIORDENELLO V. UNITED
STATES, DECIDED TODAY, ANTE, P. 480.  THIS PURPOSE IS REALIZED BY RULE
41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, WHICH IMPLEMENTS THE
FOURTH AMENDMENT BY REQUIRING THAT AN IMPARTIAL MAGISTRATE DETERMINE
FROM AN AFFIDAVIT SHOWING PROBABLE CAUSE WHETHER INFORMATION POSSESSED
BY LAW-ENFORCEMENT OFFICERS JUSTIFIES THE ISSUANCE OF A SEARCH
WARRANT.  WHERE FEDERAL OFFICERS FREE TO SEARCH WITHOUT A WARRANT
MERELY UPON PROBABLE CAUSE TO BELIEVE THAT CERTAIN ARTICLES WERE WITHIN
A HOME, THE PROVISIONS OF THE FOURTH AMENDMENT WOULD BECOME EMPTY
PHRASES, AND THE PROTECTION IT AFFORDS LARGELY NULLIFIED. 

THE FACTS OF THIS CASE IMPRESSIVELY BEAR OUT THESE OBSERVATIONS, FOR
IT IS DIFFICULT TO IMAGINE A MORE SEVERE INVASION OF PRIVACY THAN A
NIGHTTIME INTRUSION INTO A PRIVATE HOME THAT OCCURRED IN THIS
INSTANCE.  THE CRIMINAL RULES SPECIFICALLY DEAL WITH SEARCHES OF THIS
CHARACTER BY RESTRICTING NIGHTTIME WARRANTS TO SITUATIONS WHERE THE
AFFIDAVITS UPON WHICH THEY ARE ISSUED "  ...  ARE POSITIVE THAT THE
PROPERTY IS  ...  IN THE PLACE TO BE SEARCHED  ...  ."  RULE 41(C). 
THIS RULE IS HARDLY COMPATIBLE WITH A PRINCIPLE THAT A SEARCH WITHOUT A
WARRANT CAN BE BASED MERELY UPON PROBABLE CAUSE. 

THE CASE OF UNITED STATES V. RABINOWITZ, SUPRA, UPON WHICH THE
DISTRICT COURT RELIED, HAS NO APPLICATION HERE.  THERE FEDERAL AGENTS,
WITHOUT A SEARCH WARRANT, EXPLORED THE OFFICE OF THE DEFENDANT AND
THEREBY OBTAINED EVIDENCE USED AGAINST HIM AT TRIAL.  BUT IMMEDIATELY
AFTER ENTERING THE OFFICE AND BEFORE THEIR SEARCH, THE AGENTS EXECUTED
A WARRANT THEY HAD PREVIOUSLY OBTAINED FOR THE DEFENDANT'S ARREST.  THE
COURT STRESSED THAT THE LEGALITY OF THE SEARCH WAS ENTIRELY DEPENDENT
UPON AN INITIAL VALID ARREST.  339 U.S., AT 60.  THE EXCEPTIONS TO THE
RULE THAT A SEARCH MUST REST UPON A SEARCH WARRANT HAVE BEEN JEALOUSLY
AND CAREFULLY DRAWN, AND SEARCH INCIDENT TO A VALID ARREST IS AMONG
THEM.  SEE, E.G., UNITED STATES V. JEFFERS, 342 U.S. 48, 51; BRINEGAR
V. UNITED STATES, 338 U.S. 160; JOHNSON V. UNITED STATES, SUPRA, AT 14
15.  NONE OF THESE EXCEPTIONS OBTAINS IN THIS CASE. 

THE GOVERNMENT, HOWEVER, FOR THE FIRST TIME NOW MAINTAINS THAT THE
SEARCH AND SEIZURE WERE JUSTIFIABLE AS INCIDENT TO PETITIONER'S LAWFUL
ARREST.  ITS ARGUMENT IS:  THE FEDERAL AGENTS INVOLVED IN THIS SEARCH
HAD AUTHORITY UNDER FEDERAL LAW TO ARREST WITHOUT A WARRANT UPON
PROBABLE CAUSE TO BELIEVE THAT A PERSON HAD COMMITTED A FELONY.  FROM
THE RECORD IT IS "RATIONAL" TO INFER THAT THE FEDERAL AGENTS ENTERED
PETITIONER'S HOUSE WITH THE PURPOSE OF ARRESTING HIM, UPON PROBABLE
CAUSE TO BELIEVE THAT HE WAS GUILTY OF A FELONY AND THAT HE WAS THEN IN
THE HOUSE.  CONSEQUENTLY, THE AGENTS' ENTRY WAS JUSTIFIED AND, ONCE IN
THE HOUSE, WHILE SEARCHING FOR PETITIONER, THEY COULD PROPERLY SEIZE
ALL CONTRABAND MATERIAL IN PLAIN SIGHT.  THE FACT THAT PETITIONER WAS
NOT FOUND SHOULD NOT VITIATE THE LEGALITY OF THE SEIZURES. 

THESE CONTENTIONS, IF OPEN TO THE GOVERNMENT HERE, WOULD CONFRONT US
WITH A GRAVE CONSTITUTIONAL QUESTION, NAMELY, WHETHER THE FORCEFUL
NIGHTTIME ENTRY INTO A DWELLING TO ARREST A PERSON REASONABLY BELIEVED
WITHIN, UPON PROBABLE CAUSE THAT HE HAD COMMITTED A FELONY, UNDER
CIRCUMSTANCES WHERE NO REASON APPEARS WHY AN ARREST WARRANT COULD NOT
HAVE BEEN SOUGHT, IS CONSISTENT WITH THE FOURTH AMENDMENT.  BUT WE DO
NOT CONSIDER THIS ISSUE FAIRLY PRESENTED BY THIS CASE, FOR THE RECORD
FAILS TO SUPPORT THE THEORY NOW ADVANCED BY THE GOVERNMENT.  THE
TESTIMONY OF THE FEDERAL OFFICERS MAKES CLEAR BEYOND DISPUTE THAT THEIR
PURPOSE IN ENTERING WAS TO SEARCH FOR DISTILLING EQUIPMENT, AND NOT TO
ARREST PETITIONER.  SEE NOTES 1 AND 2, SUPRA, P. 496.  (FN5) 

SINCE THE EVIDENCE OBTAINED THROUGH THIS UNLAWFUL SEARCH WAS ADMITTED
AT THE TRIAL, THE JUDGMENT OF THE COURT OF APPEALS MUST BE REVERSED. 

FN1  THIS WITNESS FURTHER TESTIFIED:  "Q.  WHAT CRIME DID YOU SEE
COMMITTED INSIDE THE HOUSE BEFORE YOU WENT INSIDE TO SEARCH THE PLACE? 
A. I DIDN'T SEE ANY CRIME.  Q. WHAT CRIME DID YOU SAY WAS COMMITTED IN
YOUR PRESENCE?  A. THE ONE I SAW WAS THE TRANSPORTING OF THE WHISKEY
OUT THROUGH HIS YARD.  Q. THROUGH HIS YARD?  A. YES, SIR.  Q. YOU
STOPPED THAT TRUCK, DIDN'T YOU?  A. YES, SIR.  Q. YOU ARRESTED THE
OCCUPANTS OF THAT TRUCK, DID YOU NOT?  A. YES, SIR.  Q. NEITHER ONE OF
THE OCCUPANTS OF THAT TRUCK FLED INTO THAT HOUSE, DID THEY?  A. NO,
SIR.  Q. SO YOU HAD NO KNOWLEDGE THAT ANYONE ELSE WAS EVEN IN THE
HOUSE, HAD YOU?  A. IF YOU MEAN BY 'KNOWLEDGE,' DID I SEE ANYONE ELSE
INSIDE THE HOUSE, NO, SIR." 

FN2  ON CROSS-EXAMINATION, LANGFORD TESTIFIED:  "Q.  MRS. JONES DID
ASK YOU NOT TO COME IN, DID SHE NOT?  A. THAT IS CORRECT.  Q. MRS.
JONES ASKED YOU, DID SHE OR NOT ASK YOU TO WAIT UNTIL HER HUSBAND GOT
THERE?  A. I BELIEVE SHE DID, YES."  THESE ANSWERS AMPLIFIED HIS
EARLIER TESTIMONY: "Q.  ...  THEN YOU DIDN'T WAIT UNTIL MR. JONES,
HIMSELF, CAME HOME, DID YOU?  A. I DID NOT.  Q. YET THEY WERE HIS
PREMISES?  A. THAT IS CORRECT." 

FN3 "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

FN4  IN AGNELLO THE COURT SAID:  "SAVE IN CERTAIN CASES AS INCIDENT
TO ARREST, THERE IS NO SANCTION IN THE DECISIONS OF THE COURTS, FEDERAL
OR STATE, FOR THE SEARCH OF A PRIVATE DWELLING HOUSE WITHOUT A
WARRANT.  ABSENCE OF ANY JUDICIAL APPROVAL IS PERSUASIVE AUTHORITY THAT
IT IS UNLAWFUL ...  .  BELIEF, HOWEVER WELL FOUNDED, THAT AN ARTICLE
SOUGHT IS CONCEALED IN A DWELLING HOUSE FURNISHES NO JUSTIFICATION FOR
A SEARCH OF THAT PLACE WITHOUT A WARRANT.  AND SUCH SEARCHES ARE HELD
UNLAWFUL NOTWITHSTANDING FACTS UNQUESTIONABLY SHOWING PROBABLE CAUSE." 
269 U.S., AT 33. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON CONCURS, DISSENTING. 

ALTHOUGH THERE ARE MANY WAYS TO KILL A CAT, DROWNING REMAINS THE MOST
FAVORED.  THE COURT APPLIES THAT METHOD TO THIS CONVICTION - DROWNING
IT BY WATERING DOWN THE FINDINGS OF FACT AND CONCLUSIONS OF LAW.  BY
ATTRIBUTING TO THEM A DILUTED MEANING, THE JUDGMENTS OF THE DISTRICT
COURT AND THE COURT OF APPEALS ARE RENDERED INSUPPORTABLE.    THE
DISTRICT COURT FOUND THAT THE OFFICERS IN THIS MOONSHINE LIQUOR CASE
RECEIVED INFORMATION THAT PETITIONER, PREVIOUSLY KNOWN TO THEM AS A
LIQUOR LAW VIOLATOR, WAS OPERATING AN ILLICIT DISTILLERY IN HIS HOME. 
IN THE COURSE OF AN INVESTIGATION THE OFFICERS (1) FOUND "SPENT MASH"
FLOWING FROM A HOSE WHICH WAS TRACED TO WITHIN 75 YARDS OF THE HOUSE,
(2) HEARD A "BLOWER BURNER" OF THE TYPE GENERALLY USED IN ILLICIT
DISTILLERIES, (3) SMELLED THE ODOR OF HOT MASH COMING FROM THE HOUSE,
AND (4) HEARD THE MOVING OF HEAVY OBJECTS FROM WITHIN THE HOUSE.  THESE
OBSERVATIONS WERE GAINED OVER A TWO-DAY PERIOD.  ON THE THIRD DAY THE
OFFICERS RETURNED WITH A DAYLIGHT SEARCH WARRANT, BUT DECIDED TO RESUME
SURVEILLANCE INSTEAD OF IMMEDIATELY EXECUTING THE WARRANT.  AFTER DARK,
AS ONE PERSON LEFT THE HOUSE TO WALK UP THE ROAD, THE OFFICERS HEARD
CONVERSATION, SPECIFICALLY, AN INQUIRY AS TO WHETHER "THEY WERE READY
FOR THE TRUCK TO BE BROUGHT TO THE HOUSE."  AN EMPTY TRUCK THEN ENTERED
THE YARD AND DROVE TO THE BACK DOOR OF THE HOUSE, WHERE A THUMPING
SOUND SUGGESTING "ACTIVITY WITH HEAVY OBJECTS" WAS HEARD.  THE TRUCK,
HEAVILY LADEN, BECAME STUCK ON ITS ATTEMPT TO LEAVE THE YARD; ITS TWO
OCCUPANTS THEN WERE ARRESTED, AND ITS CONTENTS - 413 GALLONS OF
NONTAXPAID LIQUOR - WERE SEIZED.   THEREAFTER, PETITIONER'S WIFE AND
SON, WHO HAD JUST ARRIVED, ATTEMPTED TO BAR THE OFFICERS' ENTRY INTO
THE HOUSE, TELLING THEM TO WAIT UNTIL PETITIONER RETURNED.  THE
OFFICERS ENTERED ANYWAY, AND IN THE COURSE OF A SEARCH, FOUND THE
DISPUTED EVIDENCE.  THE RECORD REVEALS THAT PETITIONER WAS NOT FOUND IN
THE SEARCH OF THE PREMISES, BUT WAS ARRESTED WHEN HE RETURNED LATER IN
THE EVENING. 

FROM THESE FINDINGS COMMON SENSE WOULD SEEM TO DICTATE THE CONCLUSION
THAT THE OFFICERS, NOT BELIEVING THE STATEMENT OF PETITIONER'S WIFE
THAT HE WAS NOT THERE, ENTERED THE HOUSE TO FIND AND ARREST
PETITIONER.  IT WAS HIS HOUSE, HE WAS KNOWN AS A PRIOR OFFENDER, AND IT
WAS HE WHO WAS IMPLICATED BY THE TIP WHICH LAUNCHED THE INVESTIGATION. 
THE DISTRICT JUDGE, IN FACT, CONCLUDED THAT "THE OFFICERS HAD
REASONABLE GROUND OF SUSPICION SUPPORTED BY CIRCUMSTANCES SUFFICIENTLY
STRONG IN THEMSELVES TO WARRANT A CAUTIOUS MAN IN THE BELIEF THAT ROY
JONES WAS GUILTY OF THE OFFENSE OF OPERATING AN ILLICIT DISTILLERY IN
HIS HOME  ...  ." 

THE COURT, HOWEVER, TAKES THESE FINDINGS AND CONCLUSIONS TO MEAN THAT
BOTH THE DISTRICT COURT AND THE COURT OF APPEALS CONSIDERED THE SEARCH
AND SEIZURE JUSTIFIED "BECAUSE THE OFFICERS HAD PROBABLE CAUSE TO
BELIEVE THAT PETITIONER'S HOUSE CONTAINED CONTRABAND MATERIALS WHICH
WERE BEING UTILIZED IN THE COMMISSION OF A CRIME, AND NOT BECAUSE THE
SEARCH AND SEIZURE WERE INCIDENT TO PETITIONER'S ARREST." 

IT IS OUR DUTY, WHEN THE MEANING OF THE FINDINGS IS SOMEWHAT
DOUBTFUL, TO SO CONSTRUE THEM AS TO CONFORM WITH AND UPHOLD THE
JUDGMENT.  CF. LARKIN V. UPTON, 144 U.S. 19, 21 (1892); LORING V. FRUE,
104 U.S. 223, 224, (1881).  THIS THE COURT HAS NOT DONE.  THE COURT'S
CONSTRUCTION IS ALL THE MORE SURPRISING BECAUSE IT PLACES THE JUDGMENTS
BELOW IN DIRECT CONFLICT WITH AN ELEMENTARY RULE OF HORNBOOK LAW,
NAMELY, THAT OFFICERS MAY NOT SEARCH A DWELLING WITHOUT A WARRANT
"NOTWITHSTANDING FACTS UNQUESTIONABLY SHOWING PROBABLE CAUSE."  AGNELLO
V. UNITED STATES, 269 U.S. 20, 33 (1925).  I FEEL CERTAIN THE FOUR
LEARNED JUDGES ON THE TWO LOWER COURTS WERE WELL ACQUAINTED WITH THE
AGNELLO RULE, AND THAT THEY USED THE WORDS "PROBABLE CAUSE" AS
REFERRING NOT ULTIMATELY TO THE SEARCH OF THE PREMISES, BUT INSTEAD TO
THE ARREST OF PETITIONER AND ANY OTHER VIOLATING THE LAW WITHIN THE
HOUSE.  THIS IS BORNE OUT BY THE DEFINITION WITH WHICH THE TRIAL JUDGE
INTRODUCED THE CRUCIAL PARAGRAPH OF HIS CONCLUSIONS OF LAW:  "PROBABLE
CAUSE IS REASONABLE GROUND OF SUSPICION SUPPORTED BY CIRCUMSTANCES
SUFFICIENTLY STRONG IN THEMSELVES TO WARRANT A CAUTIOUS MAN IN THE
BELIEF THAT THE PARTY IS GUILTY OF THE OFFENSE WITH WHICH HE IS
CHARGED."  FURTHERMORE, THE TRIAL JUDGE RELIED ON UNITED STATES V.
RABINOWITZ, 339 U.S. 56 (1950), A CASE WHERE THE LEGALITY OF A SEARCH
HINGED ON THE LEGALITY OF AN ARREST.  THE MAJORITY, NOTING THE JUDGE'S
USE OF RABINOWITZ, WOULD HAVE US BELIEVE THAT THE CASE "HAS NO
APPLICATION HERE"; ON THE CONTRARY, IT WOULD APPEAR THAT THE MAJORITY
HAS OVERLOOKED THE ONLY REASON FOR WHICH THE CASE WAS CITED. 

I SUBMIT THAT THE OFFICERS HAD AUTHORITY TO ENTER THE HOUSE, ARREST
ANY PERSONS ENGAGED IN THE ILLICIT OPERATION, AND, NOT FINDING
PETITIONER, ARREST HIM UPON HIS RETURN TO THE SCENE.  UNDER THE LAW AS
I HAVE ALWAYS UNDERSTOOD IT, AN OFFICER, EVEN OVER PROTEST, MAY ENTER A
HOUSE TO MAKE AN ARREST WHERE HE HAS PROBABLE CAUSE TO BELIEVE THAT A
FELONY IS BEING OR HAS BEEN COMMITTED AND THAT THE PERPETRATORS ARE IN
THE HOUSE.  MULLANEY V. UNITED STATES, 82 F.2D 638; APPELL V. UNITED
STATES, 29 F.2D 279; MATTUS V. UNITED STATES, 11 F.2D 503; 1 WHARTON,
CRIMINAL PROCEDURE (10TH ED.), SEC. 51; WILGUS, ARREST WITHOUT A
WARRANT, 22 MICH L. REV. 541, 798, 800-807.  CF. TAYLOR V. UNITED
STATES, 286 U.S. 1, 6 (1932); AGNELLO V. UNITED STATES, SUPRA, AT 30. 
THERE BEING PROBABLE CAUSE HERE TO BELIEVE THAT A FELON WAS WITHIN THE
HOUSE, THE ENTRY OF THE OFFICERS WAS LAWFUL, EVEN THOUGH AFTER A
COMPLETE SEARCH THE BELIEF WAS FOUND TO BE INCORRECT.  LOVE V. UNITED
STATES, 170 F.2D 32, 33.  SUCH A CIRCUMSTANCE "CANNOT BE DISTINGUISHED
ON ANY REASONABLE BASIS FROM THE SEARCH OF THE PREMISES OF AN ACCUSED
AS AN INCIDENT TO THE LAWFUL ARREST OF HIS PERSON  ...  ."  MARTIN V.
UNITED STATES, 183 F.2D 436, 439. 

SINCE THE ENTRY OF PETITIONER'S HOME WAS LAWFUL, THE OFFICERS HAD A
RIGHT TO SEIZE THE CONTRABAND PROPERTY.  THE ONLY TEST IS THE
LAWFULNESS OF THE OFFICERS' ACTIVITY WHEN THEY COME UPON THE OFFENDING
PROPERTY.  IF THE SEIZURE FOLLOWS A LAWFUL ENTRY TO EFFECT AN ARREST,
AS HERE, THEN IT IS VALID.  SEE HARRIS V. UNITED STATES, 331 U.S. 145
(1947), SEIZURE DURING LAWFUL SEARCH INCIDENT TO ARREST FOR ANOTHER
CRIME; STEELE V. UNITED STATES, 267 U.S. 498 (1925), SEIZURE DURING
EXECUTION OF WARRANT FOR DIFFERENT PROPERTY. 
..END :






CICENIA V. LAGAY 357 U.S. 504 


NO. 177.  ARGUED APRIL 2, 1958 - DECIDED JUNE 30, 1958 - 240 F.2D 844,
AFFIRMED. 


CLAIMING THAT HIS CONVICTION OF MURDER IN A STATE COURT ON A PLEA OF
NON VULT VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
PETITIONER APPLIED TO A FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS
CORPUS, WHICH WAS DENIED.  HE HAD RETAINED COUNSEL BEFORE HIS ARREST;
BUT, WHILE BEING QUESTIONED BY STATE POLICE, HE WAS REPEATEDLY DENIED
THE RIGHT TO CONSULT HIS COUNSEL UNTIL HE HAD CONFESSED.  HE WAS NOT
PERMITTED TO INSPECT HIS CONFESSION BEFORE PLEADING TO THE INDICTMENT. 
HELD:  PETITIONER'S CONVICTION DID NOT VIOLATE THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  PP. 505-511. 

1.  AN INDEPENDENT EXAMINATION OF THE RECORD SATISFIES THIS COURT
THAT THE DISTRICT COURT WAS JUSTIFIED IN CONCLUDING THAT PETITIONER
FAILED TO SUBSTANTIATE THE CHARGE THAT HIS CONFESSION WAS COERCED.  P.
508. 

2.  REFUSAL TO PERMIT PETITIONER TO CONSULT HIS COUNSEL WHILE BEING
QUESTIONED BY THE STATE POLICE DID NOT OF ITSELF VIOLATE THE FOURTEENTH
AMENDMENT.  CROOKER V. CALIFORNIA, ANTE, P. 433.  PP. 508-510. 

3.  IN THE ABSENCE OF A SHOWING OF PREJUDICE, PETITIONER WAS NOT
DENIED DUE PROCESS BY THE TRIAL JUDGE'S DISCRETIONARY REFUSAL TO PERMIT
HIM TO INSPECT HIS WRITTEN CONFESSION BEFORE PLEADING TO THE
INDICTMENT.  PP. 510-511. 

CICENIA V. LAGAY, SUPERINTENDENT, NEW JERSEY STATE PRISON FARM. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO REVERSE UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES A STATE
CONVICTION WHICH WAS ENTERED UPON A PLEA OF NON VULT TO AN INDICTMENT
FOR FIRST DEGREE MURDER. 

IN THE EVENING OF MARCH 17, 1947, CHARLES KITTUAH, THE OWNER OF A
SMALL DRY GOODS STORE IN NEWARK, NEW JERSEY, WAS SHOT AND KILLED DURING
THE COURSE OF A ROBBERY.  THE CRIME REMAINED UNSOLVED UNTIL DECEMBER
17, 1949, WHEN THE NEWARK POLICE OBTAINED INFORMATION IMPLICATING THE
PETITIONER AND TWO OTHERS, ARMANDO CORVINO AND JOHN DEMASI.  PETITIONER
LIVED WITH HIS PARENTS AT ORANGE, NEW JERSEY.  APPARENTLY ACTING AT THE
REQUEST OF THE NEWARK POLICE, THE ORANGE POLICE SOUGHT TO LOCATE
PETITIONER AT HIS HOME.  WHEN TOLD THAT HE WAS OUT, THE POLICE LEFT
WORD THAT HE WAS TO REPORT AT THE ORANGE POLICE HEADQUARTERS THE
FOLLOWING DAY.  PETITIONER SOUGHT THE ADVICE OF FRANK A. PALMIERI, A
LAWYER, WHO ADVISED HIM TO REPORT AS REQUESTED.  PETITIONER DID SO,
ACCOMPANIED BY HIS FATHER AND BROTHER.  UPON ARRIVAL AT THE ORANGE
POLICE STATION AT 9 A.M. ON DECEMBER 18, PETITIONER WAS SEPARATED FROM
THE OTHERS AND TAKEN BY DETECTIVES TO THE NEWARK POLICE HEADQUARTERS. 
AT APPROXIMATELY 2 P.M. THE SAME DAY PETITIONER'S FATHER, BROTHER AND
MR. PALMIERI, THE LAWYER, ARRIVED AT THE NEWARK STATION.  MR. PALMIERI
IMMEDIATELY ASKED TO SEE PETITIONER, BUT THIS REQUEST WAS REFUSED BY
THE POLICE.  HE REPEATED THIS REQUEST AT INTERVALS THROUGHOUT THE
AFTERNOON AND WELL INTO THE EVENING, BUT WITHOUT SUCCESS.  DURING THIS
PERIOD PETITIONER, WHO WAS BEING QUESTIONED INTERMITTENTLY BY THE
POLICE, ASKED TO SEE HIS LAWYER.  THESE REQUESTS WERE ALSO DENIED. 
LAWYER AND CLIENT WERE NOT PERMITTED TO CONFER UNTIL 9:30 P.M., BY
WHICH TIME PETITIONER HAD MADE AND SIGNED A WRITTEN CONFESSION TO THE
MURDER OF KITTUAH.  THE CONFESSION IS NOT IN THE RECORD. 

PETITIONER WAS ARRAIGNED THE NEXT DAY, DECEMBER 19, AND SUBSEQUENTLY
INDICTED, ALONG WITH CORVINO AND DEMASI, BOTH OF WHOM HAD ALSO
CONFESSED TO THE MURDER.  THEREAFTER, PETITIONER MOVED IN THE ESSEX
COUNTY COURT FOR AN ORDER REQUIRING THE STATE TO PRODUCE FOR INSPECTION
BEFORE TRIAL HIS CONFESSION AND THE CONFESSIONS OF HIS CO-DEFENDANTS
AND, ALTERNATIVELY, FOR AN ORDER SUPPRESSING HIS CONFESSION ON THE
GROUND THAT IT HAD BEEN ILLEGALLY OBTAINED.  THE COUNTY COURT DENIED
THE MOTION.  THE SUPERIOR COURT OF NEW JERSEY DISMISSED THE APPEAL, 9
N.J.  SUPER.  135, 75 A.2D 476, AND THE SUPREME COURT OF NEW JERSEY
AFFIRMED THE DISMISSAL, WITH MODIFICATIONS.  6 N.J. 296, 78 A.2D 568. 
THE STATE SUPREME COURT HELD THAT NEW JERSEY HAD NO PROCEDURE LIKE THAT
UNDER RULE 41(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE BY WHICH
INADMISSIBLE EVIDENCE COULD BE SUPPRESSED BEFORE TRIAL; THAT UNDER NEW
JERSEY LAW CRIMINAL DEFENDANTS DID NOT HAVE AN ABSOLUTE RIGHT TO
INSPECT THEIR CONFESSIONS IN ADVANCE OF TRIAL; AND THAT THE TRIAL JUDGE
IN THIS INSTANCE DID NOT ABUSE HIS DISCRETION IN DISALLOWING SUCH AN
INSPECTION. 

FOLLOWING HIS FAILURE TO SUPPRESS OR OBTAIN INSPECTION OF HIS
CONFESSION, PETITIONER, ON THE ADVICE OF HIS ATTORNEY, OFFERED TO PLEAD
NON VULT TO THE INDICTMENT.  IN NEW JERSEY SUCH A PLEA IS SUBJECT TO
DISCRETIONARY ACCEPTANCE BY THE TRIAL COURT, STATE V. MARTIN, 92 N.J.L.
436, 106 A. 385, AND CARRIES A MAXIMUM SENTENCE OF LIFE IMPRISONMENT. 
PETITIONER'S PLEA WAS ACCEPTED BY THE TRIAL COURT, AS WERE THE SIMILAR
PLEAS OF CORVINO AND DEMASI, WHOSE CASES ARE NOT BEFORE US.  PETITIONER
AND HIS TWO CODEFENDANTS WERE THEREUPON SENTENCED TO LIFE IMPRISONMENT
AT HARD LABOR. 

THEREAFTER PETITIONER COMMENCED HABEAS CORPUS PROCEEDINGS IN THE NEW
JERSEY COURTS, ALLEGING THAT HIS PLEA OF NON VULT WAS ACTUATED BY THE
EXISTENCE OF THE CONFESSION, AND THAT THE CONVICTION ENTERED UPON SUCH
PLEA WAS VITIATED UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS
BECAUSE THE CONFESSION WAS COERCED AND BECAUSE IT HAD BEEN TAKEN IN
DEROGATION OF HIS RIGHT TO THE ASSISTANCE OF COUNSEL.  THE COUNTY
COURT, THE SUPERIOR COURT, AND THE SUPREME COURT OF NEW JERSEY IN TURN
DENIED RELIEF, (FN1) AND THIS COURT DENIED CERTIORARI.  350 U.S. 925. 
PETITIONER THEN COMMENCED IN THE DISTRICT COURT FOR NEW JERSEY THE
FEDERAL HABEAS CORPUS PROCEEDING BEFORE US, ATTACKING HIS CONVICTION ON
THE GROUNDS STATED ABOVE.  THE DISTRICT COURT DISCHARGED THE WRIT,
HOLDING THAT PETITIONER HAD FAILED TO ESTABLISH THE INVOLUNTARINESS OF
THE CONFESSION AND THAT THE STATE'S REFUSAL TO PERMIT PETITIONER TO
COMMUNICATE WITH COUNSEL DURING THE POLICE INQUIRY DID NOT DEPRIVE HIM
OF DUE PROCESS.  148 F. SUPP. 98.  THE COURT OF APPEALS AFFIRMED, 240
F.2D 844, AND WE GRANTED CERTIORARI TO CONSIDER THE CONSTITUTIONAL
QUESTIONS PRESENTED.  354 U.S. 908.  (FN2) 

AN INDEPENDENT EXAMINATION OF THE RECORD SATISFIES US THAT THE
DISTRICT COURT WAS JUSTIFIED IN CONCLUDING THAT PETITIONER FAILED TO
SUBSTANTIATE THE CHARGE THAT HIS CONFESSION WAS COERCED.  PETITIONER
DOES NOT NOW CONTEND TO THE CONTRARY.  HE CONTINUES TO CONTEND,
HOWEVER, THAT UNDER THE FOURTEENTH AMENDMENT HIS CONFESSION, EVEN
THOUGH VOLUNTARY, WAS NEVERTHELESS VITIATED BY POLICE REFUSAL TO PERMIT
HIM TO CONFER WITH COUNSEL DURING HIS DETENTION AT NEWARK POLICE
HEADQUARTERS, AND THAT BECAUSE HIS PLEA OF NON VULT WAS BASED ON THE
CONFESSION, THE CONVICTION MUST FALL AS WELL.  (FN3) 

THE CONTENTION THAT PETITIONER HAD A CONSTITUTIONAL RIGHT TO CONFER
WITH COUNSEL IS DISPOSED OF BY CROOKER V. CALIFORNIA, ANTE, P. 433,
DECIDED TODAY.  THERE WE HELD THAT CALIFORNIA'S FAILURE TO HONOR
CROOKER'S REQUEST DURING A PERIOD OF POLICE INTERROGATION TO CONSULT
WITH A LAWYER, AS YET UNRETAINED, DID NOT VIOLATE THE FOURTEENTH
AMENDMENT.  BECAUSE THE PRESENT CASE, IN WHICH PETITIONER WAS DENIED AN
OPPORTUNITY TO CONFER WITH THE LAWYER WHOM HE HAD ALREADY RETAINED,
SHARPLY POINTS UP THE CONSTITUTIONAL ISSUE INVOLVED, SOME ADDITIONAL
OBSERVATIONS ARE IN ORDER. 

WE SHARE THE STRONG DISTASTE EXPRESSED BY THE TWO LOWER COURTS OVER
THE EPISODE DISCLOSED BY THIS RECORD.  CF. STROBLE V. CALIFORNIA, 343
U.S. 181, 197-198.  WERE THIS A FEDERAL PROSECUTION WE WOULD HAVE
LITTLE DIFFICULTY IN DEALING WITH WHAT OCCURRED UNDER OUR GENERAL
SUPERVISORY POWER OVER THE ADMINISTRATION OF JUSTICE IN THE FEDERAL
COURTS.  SEE MCNABB V. UNITED STATES, 318 U.S. 332.  BUT TO HOLD THAT
WHAT HAPPENED HERE VIOLATED THE CONSTITUTION OF THE UNITED STATES IS
QUITE ANOTHER MATTER. 

THE DIFFICULTIES INHERENT IN THE PROBLEM REQUIRE NO EXTENSIVE
ELABORATION.  CF. WATTS V. INDIANA, 338 U.S. 49, 57-62 (OPINION OF
JACKSON, J.).  ON THE ONE HAND, IT IS INDISPUTABLE THAT THE RIGHT TO
COUNSEL IN CRIMINAL CASES HAS A HIGH PLACE IN OUR SCHEME OF PROCEDURAL
SAFEGUARDS.  ON THE OTHER HAND, IT CAN HARDLY BE DENIED THAT ADOPTION
OF PETITIONER'S POSITION WOULD CONSTRICT STATE POLICE ACTIVITIES IN A
MANNER THAT IN MANY INSTANCES MIGHT IMPAIR THEIR ABILITY TO SOLVE
DIFFICULT CASES.  A SATISFACTORY FORMULA FOR RECONCILING THESE
COMPETING CONCERNS IS NOT TO BE FOUND IN ANY BROAD PRONOUNCEMENT THAT
ONE MUST YIELD TO THE OTHER IN ALL INSTANCES.  INSTEAD, AS WE POINT OUT
IN CROOKER V. CALIFORNIA, SUPRA, THIS COURT, IN JUDGING WHETHER STATE
PROSECUTIONS MEET THE REQUIREMENTS OF DUE PROCESS, HAS SOUGHT TO
ACHIEVE A PROPER ACCOMMODATION BY CONSIDERING A DEFENDANT'S LACK OF
COUNSEL ONE PERTINENT ELEMENT IN DETERMINING FROM ALL THE CIRCUMSTANCES
WHETHER A CONVICTION WAS ATTENDED BY FUNDAMENTAL UNFAIRNESS.  SEE HOUSE
V. MAYO, 324 U.S. 42, 45-46; PAYNE V. ARKANSAS, 356 U.S. 560, 567. 

IN CONTRAST, PETITIONER WOULD HAVE US HOLD THAT ANY STATE DENIAL OF A
DEFENDANT'S REQUEST TO CONFER WITH COUNSEL DURING POLICE QUESTIONING
VIOLATES DUE PROCESS, IRRESPECTIVE OF THE PARTICULAR CIRCUMSTANCES
INVOLVED.  SUCH A HOLDING, IN ITS ULTIMATE REACH, WOULD MEAN THAT STATE
POLICE COULD NOT INTERROGATE A SUSPECT BEFORE GIVING HIM AN OPPORTUNITY
TO SECURE COUNSEL.  EVEN IN FEDERAL PROSECUTIONS THIS COURT HAS
REFRAINED FROM LAYING DOWN ANY SUCH INFLEXIBLE RULE.  SEE MCNABB V.
UNITED STATES, SUPRA; MALLORY V. UNITED STATES, 354 U.S. 449.  STILL
LESS SHOULD WE IMPOSE THIS STANDARD ON EACH OF THE 48 STATES AS A
MATTER OF CONSTITUTIONAL COMPULSION.  (FN4)  IT IS WELL KNOWN THAT LAW
ENFORCEMENT PROBLEMS VARY WIDELY FROM STATE TO STATE, AS WELL AS AMONG
DIFFERENT COMMUNITIES WITHIN THE SAME STATE.  THIS COURT HAS OFTEN
RECOGNIZED THAT IT IS OF THE "VERY ESSENCE OF OUR FEDERALISM THAT THE
STATES SHOULD HAVE THE WIDEST LATITUDE IN THE ADMINISTRATION OF THEIR
OWN SYSTEMS OF CRIMINAL JUSTICE."  HOAG V. NEW JERSEY, 356 U.S. 464,
468.  SEE MAXWELL V. DOW, 176 U.S. 581; TWINING V. NEW JERSEY, 211 U.S.
78.  THE BROAD RULE SOUGHT HERE AND IN CROOKER WOULD REQUIRE US TO
APPLY THE FOURTEENTH AMENDMENT IN A MANNER WHICH WOULD BE FOREIGN BOTH
TO THE SPIRIT IN WHICH IT WAS CONCEIVED AND THE WAY IN WHICH IT HAS
BEEN IMPLEMENTED BY THIS COURT. 

PETITIONER'S REMAINING CONSTITUTIONAL CONTENTION CAN BE DISPOSED OF
BRIEFLY.  HE ARGUES THAT HE WAS DEPRIVED OF DUE PROCESS BECAUSE NEW
JERSEY REQUIRED HIM TO PLEAD TO THE INDICTMENT FOR MURDER WITHOUT THE
OPPORTUNITY TO INSPECT HIS CONFESSION. 

THE FOURTEENTH AMENDMENT DOES NOT REACH SO FAR.  AS STATED BY THE
SUPREME COURT OF NEW JERSEY IN THE EARLIER PROCEEDINGS IN THIS CASE, 6
N.J. 296, AT 299-301, 78 A.2D 568, AT 570-571, THE RULE IN THAT STATE
IS THAT THE TRIAL JUDGE HAS DISCRETION WHETHER OR NOT TO ALLOW
INSPECTION BEFORE TRIAL.  THIS IS CONSISTENT WITH THE PRACTICE IN MANY
OTHER JURISDICTIONS.  SEE, E.G., STATE V. HAAS, 188 MD. 63, 51 A.2D
647; PEOPLE V. SKOYEC, 183 MISC. 764, 50 N.Y.S.2D 438; STATE V. CLARK,
21 WASH. 2D 774, 153 P.2D 297.  IN LELAND V. OREGON, 343 U.S. 790, 801
802, THIS COURT HELD THAT IN THE ABSENCE OF A SHOWING OF PREJUDICE TO
THE DEFENDANT IT WAS NOT A VIOLATION OF DUE PROCESS FOR A STATE TO DENY
COUNSEL AN OPPORTUNITY BEFORE TRIAL TO INSPECT HIS CLIENT'S
CONFESSION.  IT IS TRUE THAT IN LELAND THE CONFESSION WAS MADE
AVAILABLE TO THE DEFENSE AT THE TRIAL SEVERAL DAYS BEFORE ITS CASE WAS
RESTED, WHEREAS HERE PETITIONER PLEADED NON VULT WITHOUT AN OPPORTUNITY
TO SEE THE CONFESSION.  WE THINK THAT THE PRINCIPLE OF THAT CASE IS
NONETHELESS APPLICABLE.  AS WAS SAID IN LELAND (343 U.S., AT 801),
ALTHOUGH IT MAY BE THE "BETTER PRACTICE" FOR THE PROSECUTION TO COMPLY
WITH A REQUEST FOR INSPECTION, WE CANNOT SAY THAT THE DISCRETIONARY
REFUSAL OF THE TRIAL JUDGE TO PERMIT INSPECTION IN THIS CASE OFFENDED
THE FOURTEENTH AMENDMENT.  CF. APPLICATION OF TUNE, 230 F.2D 883, 890
892.  AFFIRMED. 

FN1  THE OPINIONS OF THE COUNTY COURT AND SUPERIOR COURT ARE NOT
REPORTED.  THE STATE SUPREME COURT WROTE NO OPINION. 

FN2  ALTHOUGH THE STATE DOES NOT CONTEND THAT THE CASE IS NOT
PROPERLY HERE, WE HAVE NEVERTHELESS FELT OBLIGED TO CONSIDER OUR
JURISDICTION IN VIEW OF THE FOLLOWING CIRCUMSTANCES:  NEW JERSEY HAS A
RULE THAT A DEFENDANT WHO PLEADS GUILTY WAIVES THE RIGHT TO ATTACK A
CONFESSION ON WHICH SUCH PLEA IS BASED.  SEE IN RE DOMAKO, 20 N.J.
SUPER.  314, 90 A.2D, 30, AFF'D, 11 N.J. 591, 95 A.2D 505.  FOLLOWING
THAT RULE, THE ESSEX COUNTY COURT HELD THAT PETITIONER COULD NOT ATTACK
HIS CONVICTION ON HABEAS CORPUS.  ON APPEAL THE SUPERIOR COURT DID NOT
ADVERT TO THAT QUESTION, BUT AFFIRMED THE COUNTY COURT ON THE GROUND
THAT UNDER NEW JERSEY LAW PETITIONER HAD NO CONSTITUTIONAL RIGHT TO
COUNSEL PRIOR TO ARRAIGNMENT.  SEE STATE V. GRILLO, 11 N.J. 173, 93
A.2D 328.  THE STATE SUPREME COURT GAVE NO RE'SONS FOR DENYING LEAVE TO
APPEAL.  SINCE THE SUPERIOR COURT HAD DEALT WITH PETITIONER'S
CONSTITUTIONAL CLAIMS ON THE MERITS, THE TWO LOWER FEDERAL COURTS
DECIDED THAT THEY HAD THE POWER TO CONSIDER THEM.  CF. BROWN V. ALLEN,
344 U.S. 443, 486; HAWK V. OLSON, 326 U.S. 271, 278.  WE AGREE THAT
JURISDICTION EXISTS.  IN THE ABSENCE OF A DEFINITIVE NEW JERSEY RULING
THAT THE DOMAKO WAIVER PRINCIPLE APPLIES TO A PLEA OF NON VULT, WE
SHALL NOT ASSUME THAT THE NEW JERSEY SUPREME COURT'S DECISION DENYING
LEAVE TO APPEAL WAS BASED ON THAT NONFEDERAL GROUND.  CF. STEMBRIDGE V.
GEORGIA, 343 U.S. 541.  OUR CONCLUSION IS STRENGTHENED BY THE FACT THAT
THE SUPERIOR COURT DID NOT RELY ON THE DOMAKO RULE, AND BY THE ABSENCE
OF ANY CHALLENGE TO OUR JURISDICTION BY THE STATE. 

FN3  SINCE WE CONCLUDE THAT THE POLICE REFUSAL TO ALLOW PETITIONER TO
CONSULT WITH HIS LAWYER DID NOT VIOLATE THE FOURTEENTH AMENDMENT, WE
NEED NOT CONSIDER THE STATE'S FURTHER CONTENTION THAT PETITIONER WAS
NOT DENIED DUE PROCESS BECAUSE THE CONFESSION WAS NEVER "USED" AGAINST
HIM, HE HAVING PLEADED NON VULT TO THE INDICTMENT.  BUT CF. HERMAN V.
CLAUDY, 350 U.S. 116. 

FN4  NEW JERSEY IS NOT ALONE IN ITS RULE THAT AN ACCUSED HAS NO RIGHT
TO CONSULT WITH COUNSEL DURING THE PERIOD BETWEEN ARREST AND
ARRAIGNMENT.  SEE STATE V. ROGERS, 143 CONN.  167, 120 A.2D 409; UTAH
V. SULLIVAN, 227 F.2D 511; PEOPLE V. KELLY, 404 ILL. 281, 89 N.E.2D
27.  MOST STATES HAVE NOT HAD OCCASION TO RULE ON THE ISSUE BEFORE US,
AND IT IS GENERALLY QUITE UNCLEAR IN STATE LAW WHEN THE RIGHT TO HAVE
COUNSEL BEGINS.  SEE BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS,
127-128; 3 A.L.R.2D 1003, 1032 ET SEQ.    MR. JUSTICE BRENNAN TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

PETITIONER, PURSUANT TO A REQUEST LEFT BY THE POLICE AT HIS HOME ON
SATURDAY, DECEMBER 17, APPEARED AT HEADQUARTERS IN ORANGE, NEW JERSEY,
AT 9 A.M. ON THE 18TH.  HE DID SO ON THE ADVICE OF HIS LAWYER, FRANK A.
PALMIERI.  PETITIONER'S BROTHER AND FATHER ACCOMPANIED HIM ON THIS
VISIT BUT WERE SEPARATED FROM HIM ON ARRIVAL AT THE HEADQUARTERS. 
SHORTLY THEREAFTER PETITIONER WAS TAKEN TO NEWARK WHERE HE WAS
INTERROGATED BY THE POLICE UNTIL 9:30 P.M. WHEN HE CONFESSED.  BETWEEN
2 P.M. AND 9:30 P.M. MR. PALMIERI ASKED OVER AND AGAIN TO SEE HIS
CLIENT; BUT HIS REQUESTS WERE NOT GRANTED.  ON THIS PHASE OF THE CASE
THE DISTRICT COURT SAID: 

"MR. PALMIERI WAS NOT PRODUCED AS A WITNESS ON THE TRIAL OF THIS
CASE, BUT HIS AFFIDAVIT WAS ADMITTED BY STIPULATION.  THE CONTENTS OF
HIS AFFIDAVIT AND THE TESTIMONY OF PETITIONER'S FATHER AND BROTHER ARE
AT VARIANCE WITH THE TESTIMONY OF THE NEWARK POLICE AS TO THE MANNER IN
WHICH PETITIONER AND HIS COUNSEL WERE RESTRAINED FROM COMMUNICATING
WITH EACH OTHER.  ACCORDING TO PETITIONER'S WITNESSES PALMIERI'S PLEAS
WERE MET WITH BLUNT REFUSALS AND REMARKS SUCH AS 'WE'RE WORKING ON
HIM.'  THE POLICE CLAIM TO HAVE BEEN MUCH MORE DECOROUS.  BUT WHETHER
IT WAS DONE FLIPPANTLY OR COURTEOUSLY, THE FACT REMAINS THAT FOR OVER
SEVEN HOURS THE NEWARK POLICE FORMED AN INSUPERABLE BARRIER BETWEEN AN
ACCUSED WHO WANTED TO SEE HIS COUNSEL, AND COUNSEL WHO WANTED TO SEE
HIS CLIENT.  AND IT WAS DURING THESE SEVEN HOURS THAT THE POLICE AND AN
ASSISTANT PROSECUTOR WERE ABLE TO OBTAIN A DETAILED CONFESSION FROM
PETITIONER."  148 F. SUPP. 98, 99-100. 

THE DISTRICT COURT REACHED "WITHOUT ENTHUSIASM" THE CONCLUSION THAT
PETITIONER'S CONSTITUTIONAL RIGHTS HAD NOT BEEN IMPAIRED.  ID., AT
104.  THE COURT OF APPEALS EVINCED THE SAME LACK OF ENTHUSIASM FOR THE
RESULT.  240 F.2D 844.  BOTH LOWER COURTS FELT THAT ANY CORRECTION OF
THIS UNJUST RESULT SHOULD COME FROM US.  I REGRET THAT WE HAVE NOT
TAKEN THIS CASE, AND THE COMPANION CASES, AS THE OCCASION TO BRING OUR
DECISIONS INTO TUNE WITH THE CONSTITUTIONAL REQUIREMENT FOR FAIR
CRIMINAL PROCEEDINGS AGAINST THE CITIZEN.  I WOULD REVERSE THE JUDGMENT
FOR THE REASONS STATED IN MY DISSENT IN CROOKER V. CALIFORNIA, ANTE, P.
441. 
..END :




SPEISER V. RANDALL 357 U.S. 513 


NO. 483.  ARGUED APRIL 8-9, 1958 - DECIDED JUNE 30, 1958* - 48 CAL. 2D
472, 903, 311 P.2D 544, 546, REVERSED AND CAUSES REMANDED. 

*TOGETHER WITH NO. 484, PRINCE V. CITY AND COUNTY OF SAN FRANCISCO,
ALSO ON APPEAL FROM THE SAME COURT. 


SOLELY BECAUSE THEY REFUSED TO SUBSCRIBE OATHS THAT THEY DO NOT
ADVOCATE THE OVERTHROW OF THE FEDERAL OR STATE GOVERNMENT BY FORCE,
VIOLENCE OR OTHER UNLAWFUL MEANS, OR ADVOCATE THE SUPPORT OF A FOREIGN
GOVERNMENT AGAINST THE UNITED STATES IN EVENT OF HOSTILITIES,
APPELLANTS WERE DENIED TAX EXEMPTIONS PROVIDED FOR VETERANS BY THE
CALIFORNIA CONSTITUTION.  THE FILING OF SUCH AN OATH WAS REQUIRED BY A
CALIFORNIA STATUTE AS A PREREQUISITE TO QUALIFICATION FOR THE TAX
EXEMPTION, IN ORDER TO EFFECTUATE A PROVISION OF THE STATE CONSTITUTION
DENYING ANY TAX EXEMPTION TO ANY PERSON WHO ADVOCATES SUCH ACTIONS,
WHICH WAS CONSTRUED BY THE STATE SUPREME COURT AS DENYING TAX
EXEMPTIONS ONLY TO CLAIMANTS WHO ENGAGE IN SPEECH WHICH MAY BE
CRIMINALLY PUNISHED CONSISTENTLY WITH THE FREE-SPEECH GUARANTEES OF THE
FEDERAL CONSTITUTION.  HELD:  ENFORCEMENT OF THIS PROVISION THROUGH
PROCEDURES WHICH PLACE THE BURDENS OF PROOF AND PERSUASION ON THE
TAXPAYERS DENIED THEM FREEDOM OF SPEECH WITHOUT THE PROCEDURAL
SAFEGUARDS REQUIRED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 514-529. 

1.  A DISCRIMINATORY DENIAL OF A TAX EXEMPTION FOR ENGAGING IN SPEECH
IS A LIMITATION ON FREE SPEECH.  PP. 518-520. 

2.  THE METHOD CHOSEN BY CALIFORNIA FOR DETERMINING WHETHER A
CLAIMANT IS A MEMBER OF THE CLASS TO WHICH ITS SUPREME COURT HAS SAID
THAT THE TAX EXEMPTION IS DENIED DOES NOT PROVIDE THE PROCEDURAL
SAFEGUARDS REQUIRED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT BEFORE FREE SPEECH MAY BE DENIED, SINCE IT PLACES ON THE
TAXPAYER THE BURDEN OF PROVING THAT HE IS NOT A MEMBER OF THAT CLASS. 
PP. 520-529. 

(A)  WHEN A STATE UNDERTAKES TO RESTRAIN UNLAWFUL ADVOCACY, IT MUST
PROVIDE PROCEDURES WHICH ARE ADEQUATE TO SAFEGUARD AGAINST INFRINGEMENT
OF CONSTITUTIONALLY PROTECTED RIGHTS.  PP. 520-521. 

(B)  THE CALIFORNIA PROCEDURE PLACES UPON THE TAXPAYER THE BURDEN OF
PROVING THAT HE DOES NOT CRIMINALLY ADVOCATE THE OVERTHROW OF THE
FEDERAL OR STATE GOVERNMENT BY FORCE, VIOLENCE OR OTHER UNLAWFUL MEANS
OR ADVOCATE THE SUPPORT OF A FOREIGN GOVERNMENT AGAINST THE UNITED
STATES IN THE EVENT OF HOSTILITIES.  PP. 521-523. 

(C)  IT DOES NOT FOLLOW THAT BECAUSE ONLY A TAX LIABILITY IS HERE
INVOLVED, THE ORDINARY TAX ASSESSMENT PROCEDURES ARE ADEQUATE WHEN
APPLIED TO PENALIZE SPEECH.  PP. 523-525. 

(D)  SINCE FREE SPEECH IS INVOLVED, DUE PROCESS REQUIRES IN THE
CIRCUMSTANCES OF THIS CASE THAT THE STATE BEAR THE BURDEN OF SHOWING
THAT APPELLANTS ENGAGED IN CRIMINAL SPEECH.  PP. 525-526. 

(E)  GARNER V. BOARD OF PUBLIC WORKS, 341 U.S. 716; GERENDE V. BOARD
OF SUPERVISORS, 341 U.S. 56, AND AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382, DISTINGUISHED.  PP. 527-528. 

(F)  WHEN THE CONSTITUTIONAL RIGHT TO SPEAK IS SOUGHT TO BE DETERRED
BY A STATE'S GENERAL TAXING PROGRAM, DUE PROCESS DEMANDS THAT THE
SPEECH BE UNENCUMBERED UNTIL THE STATE COMES FORWARD WITH SUFFICIENT
PROOF TO JUSTIFY ITS INHIBITION.  PP. 528-529. 

(G)  SINCE THE ENTIRE STATUTORY PROCEDURE VIOLATED THE REQUIREMENTS
OF DUE PROCESS BY PLACING THE BURDENS OF PROOF AND PERSUASION ON THEM,
APPELLANTS WERE NOT OBLIGED TO TAKE EVEN THE FIRST STEP IN SUCH
PROCEDURE AS A CONDITION FOR OBTAINING THE TAX EXEMPTION.  P. 529. 

SPEISER V. RANDALL, ASSESSOR OF CONTRA COSTA COUNTY, CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS ARE HONORABLY DISCHARGED VETERANS OF WORLD WAR II WHO
CLAIMED THE VETERANS' PROPERTY-TAX EXEMPTION PROVIDED BY ART. XIII,
SEC. 1 1/4, OF THE CALIFORNIA CONSTITUTION.  UNDER CALIFORNIA LAW
APPLICANTS FOR SUCH EXEMPTION MUST ANNUALLY COMPLETE A STANDARD FORM OF
APPLICATION AND FILE IT WITH THE LOCAL ASSESSOR.  THE FORM WAS REVISED
IN 1954 TO ADD AN OATH BY THE APPLICANT: "I DO NOT ADVOCATE THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF THE STATE OF
CALIFORNIA BY FORCE OR VIOLENCE OR OTHER UNLAWFUL MEANS, NOR ADVOCATE
THE SUPPORT OF A FOREIGN GOVERNMENT AGAINST THE UNITED STATES IN EVENT
OF HOSTILITIES."  EACH REFUSED TO SUBSCRIBE THE OATH AND STRUCK IT FROM
THE FORM WHICH HE EXECUTED AND FILED FOR THE TAX YEAR 1954-1955.  EACH
CONTENDED THAT THE EXACTION OF THE OATH AS A CONDITION OF OBTAINING A
TAX EXEMPTION WAS FORBIDDEN BY THE FEDERAL CONSTITUTION.  THE
RESPECTIVE ASSESSORS DENIED THE EXEMPTION SOLELY FOR THE REFUSAL TO
EXECUTE THE OATH.  THE SUPREME COURT OF CALIFORNIA SUSTAINED THE
ASSESSORS' ACTIONS AGAINST THE APPELLANTS' CLAIMS OF CONSTITUTIONAL
INVALIDITY.  (FN1)  WE NOTED PROBABLE JURISDICTION OF THE APPEALS.  355
U.S. 880. 

ARTICLE XX, SEC. 19, OF THE CALIFORNIA CONSTITUTION, ADOPTED AT THE
GENERAL ELECTION OF NOVEMBER 4, 1952, PROVIDES AS FOLLOWS: 

"NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONSTITUTION, NO PERSON
OR ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE
UNITED STATES OR THE STATE BY FORCE OR VIOLENCE OR OTHER UNLAWFUL MEANS
OR WHO ADVOCATES THE SUPPORT OF A FOREIGN GOVERNMENT AGAINST THE UNITED
STATES IN THE EVENT OF HOSTILITIES SHALL: 

*         *         *         *         * 

"(B)  RECEIVE ANY EXEMPTION FROM ANY TAX IMPOSED BY THIS STATE OR ANY
COUNTY, CITY OR COUNTY, CITY, DISTRICT, POLITICAL SUBDIVISION,
AUTHORITY, BOARD, BUREAU, COMMISSION OR OTHER PUBLIC AGENCY OF THIS
STATE. 

"THE LEGISLATURE SHALL ENACT SUCH LAWS AS MAY BE NECESSARY TO ENFORCE
THE PROVISIONS OF THIS SECTION." 

TO EFFECTUATE THIS CONSTITUTIONAL AMENDMENT THE CALIFORNIA
LEGISLATURE ENACTED SEC. 32 OF THE REVENUE AND TAXATION CODE, WHICH
REQUIRES THE CLAIMANT, AS A PREREQUISITE TO QUALIFICATION FOR ANY
PROPERTY-TAX EXEMPTION, TO SIGN A STATEMENT ON HIS TAX RETURN DECLARING
THAT HE DOES NOT ENGAGE IN THE ACTIVITIES DESCRIBED IN THE
CONSTITUTIONAL AMENDMENT.  (FN2)  THE CALIFORNIA SUPREME COURT HELD
THAT THIS DECLARATION, LIKE OTHER STATEMENTS REQUIRED OF THOSE FILING
TAX RETURNS, WAS DESIGNED TO RELIEVE THE TAX ASSESSOR OF "THE BURDEN
...  OF ASCERTAINING THE FACTS WITH REFERENCE TO TAX EXEMPTION
CLAIMANTS."  48 CAL. 2D 419, 432, 311 P.2D 508, 515.  THE DECLARATION,
WHILE INTENDED TO PROVIDE A MEANS OF DETERMINING WHETHER A CLAIMANT
QUALIFIES FOR THE EXEMPTION UNDER THE CONSTITUTIONAL AMENDMENT, IS NOT
CONCLUSIVE EVIDENCE OF ELIGIBILITY.  THE ASSESSOR HAS THE DUTY OF
INVESTIGATING THE FACTS UNDERLYING ALL TAX LIABILITIES AND IS EMPOWERED
BY SEC. 454 OF THE CODE TO SUBPOENA TAXPAYERS FOR THE PURPOSE OF
QUESTIONING THEM ABOUT STATEMENTS THEY HAVE FURNISHED.  IF THE ASSESSOR
BELIEVES THAT THE CLAIMANT IS NOT QUALIFIED IN ANY RESPECT, HE MAY DENY
THE EXEMPTION AND REQUIRE THE CLAIMANT, ON JUDICIAL REVIEW, TO PROVE
THE INCORRECTNESS OF THE DETERMINATION.  IN OTHER WORDS, THE FACTUAL
DETERMINATION WHETHER THE TAXPAYER IS ELIGIBLE FOR THE EXEMPTION UNDER
THE CONSTITUTIONAL AMENDMENT IS MADE IN PRECISELY THE SAME MANNER AS
THE DETERMINATION OF ANY OTHER FACT BEARING ON TAX LIABILITY. 

THE APPELLANTS ATTACK THESE PROVISIONS, INFER ALIA, AS DENYING THEM
FREEDOM OF SPEECH WITHOUT THE PROCEDURAL SAFEGUARDS REQUIRED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  (FN3)

                   I. 

IT CANNOT BE GAINSAID THAT A DISCRIMINATORY DENIAL OF A TAX EXEMPTION
FOR ENGAGING IN SPEECH IS A LIMITATION ON FREE SPEECH.  THE SUPREME
COURT OF CALIFORNIA RECOGNIZED THAT THESE PROVISIONS WERE LIMITATIONS
ON SPEECH BUT CONCLUDED THAT "BY NO STANDARD CAN THE INFRINGEMENT UPON
FREEDOM OF SPEECH IMPOSED BY SECTION 19 OF ARTICLE XX BE DEEMED A
SUBSTANTIAL ONE."  48 CAL. 2D 419, 440, 311 P.2D 508, 521.  IT IS
SETTLED THAT SPEECH CAN BE EFFECTIVELY LIMITED BY THE EXERCISE OF THE
TAXING POWER.   GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233.  TO DENY
AN EXEMPTION TO CLAIMANTS WHO ENGAGE IN CERTAIN FORMS OF SPEECH IS IN
EFFECT TO PENALIZE THEM FOR SUCH SPEECH.  ITS DETERRENT EFFECT IS THE
SAME AS IF THE STATE WERE TO FINE THEM FOR THIS SPEECH.  THE APPELLEES
ARE PLAINLY MISTAKEN IN THEIR ARGUMENT THAT, BECAUSE A TAX EXEMPTION IS
A "PRIVILEGE" OR "BOUNTY," ITS DENIAL MAY NOT INFRINGE SPEECH.  THIS
CONTENTION DID NOT PREVAIL BEFORE THE CALIFORNIA COURTS, WHICH
RECOGNIZED THAT CONDITIONS IMPOSED UPON THE GRANTING OF PRIVILEGES OR
GRATUITIES MUST BE "REASONABLE."  IT HAS BEEN SAID THAT CONGRESS MAY
NOT BE WITHDRAWAL OF MAILING PRIVILEGES PLACE LIMITATIONS UPON THE
FREEDOM OF SPEECH WHICH IF DIRECTLY ATTEMPTED WOULD BE
UNCONSTITUTIONAL.  SEE HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, 156;
CF. MILWAUKEE PUBLISHING CO. V. BURLESON, 255 U.S. 407, 430-431
(BRANDEIS, J., DISSENTING).  THIS COURT HAS SIMILARLY REJECTED THE
CONTENTION THAT SPEECH WAS NOT ABRIDGED WHEN THE SOLE RESTRAINT ON ITS
EXERCISE WAS WITHDRAWAL OF THE OPPORTUNITY TO INVOKE THE FACILITIES OF
THE NATIONAL LABOR RELATIONS BOARD, AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382, 402, OR THE OPPORTUNITY FOR PUBLIC EMPLOYMENT,
WIEMAN V. UPDEGRAFF, 344 U.S. 183.  SO HERE, THE DENIAL OF A TAX
EXEMPTION FOR ENGAGING IN CERTAIN SPEECH NECESSARILY WILL HAVE THE
EFFECT OF COERCING THE CLAIMANTS TO REFRAIN FROM THE PROSCRIBED
SPEECH.  THE DENIAL IS "FRANKLY AIMED AT THE SUPPRESSION OF DANGEROUS
IDEAS."  AMERICAN COMMUNICATIONS ASSN. V. DOUDS, SUPRA, AT 402. 

THE SUPREME COURT OF CALIFORNIA CONSTRUED THE CONSTITUTIONAL
AMENDMENT AS DENYING THE TAX EXEMPTIONS ONLY TO CLAIMANTS WHO ENGAGE IN
SPEECH WHICH MAY BE CRIMINALLY PUNISHED CONSISTENTLY WITH THE FREE
SPEECH GUARANTEES OF THE FEDERAL CONSTITUTION.  THE COURT DEFINED
ADVOCACY OF "THE OVERTHROW OF THE GOVERNMENT  ...  BY FORCE OR VIOLENCE
OR OTHER UNLAWFUL MEANS" AND ADVOCACY OF "SUPPORT OF A FOREIGN
GOVERNMENT AGAINST THE UNITED STATES IN EVENT OF HOSTILITIES" AS
REACHING ONLY CONDUCT WHICH MAY CONSTITUTIONALLY BE PUNISHED UNDER
EITHER THE CALIFORNIA CRIMINAL SYNDICALISM ACT, CAL. STAT. 1919, C.
188, SEE WHITNEY V. CALIFORNIA, 274 U.S. 357, OR THE FEDERAL SMITH ACT,
18 U.S.C. SEC. 2385.  48 CAL. 2D, AT 428, 311 P.2D, AT 513.  IT ALSO
SAID THAT IT WOULD APPLY THE STANDARDS SET DOWN BY THIS COURT IN DENNIS
V. UNITED STATES, 341 U.S. 494, IN ASCERTAINING THE CIRCUMSTANCES WHICH
WOULD JUSTIFY PUNISHING SPEECH AS A CRIME.  (FN4)  OF COURSE THE
CONSTITUTIONAL AND STATUTORY PROVISIONS HERE INVOLVED MUST BE READ IN
LIGHT OF THE RESTRICTIVE CONSTRUCTION THAT THE CALIFORNIA COURT, IN THE
EXERCISE OF ITS FUNCTION OF INTERPRETING STATE LAW, HAS PLACED UPON
THEM.  FOR THE PURPOSES OF THIS CASE WE ASSUME WITHOUT DECIDING THAT
CALIFORNIA MAY DENY TAX EXEMPTIONS TO PERSONS WHO ENGAGE IN THE
PROSCRIBED SPEECH FOR WHICH THEY MIGHT BE FINED OR IMPRISONED.  (FN5)

              II. 

BUT THE QUESTION REMAINS WHETHER CALIFORNIA HAS CHOSEN A FAIR METHOD
FOR DETERMINING WHEN A CLAIMANT IS A MEMBER OF THAT CLASS TO WHICH THE
CALIFORNIA COURT HAS SAID THE CONSTITUTIONAL AND STATUTORY PROVISIONS
EXTEND.  WHEN WE DEAL WITH THE COMPLEX OF STRANDS IN THE WEB OF
FREEDOMS WHICH MAKE UP FREE SPEECH, THE OPERATION AND EFFECT OF THE
METHOD BY WHICH SPEECH IS SOUGHT TO BE RESTRAINED MUST BE SUBJECTED TO
CLOSE ANALYSIS AND CRITICAL JUDGMENT IN THE LIGHT OF THE PARTICULAR
CIRCUMSTANCES TO WHICH IT IS APPLIED.  KINGSLEY BOOKS, INC., V. BROWN,
354 U.S. 436, 441-442; NEAR V. MINNESOTA, 283 U.S. 697; CF.  CANTWELL
V. CONNECTICUT, 310 U.S. 296, 305; JOSEPH BURSTYN, INC., V. WILSON, 343
U.S. 495; WINTERS V. NEW YORK, 333 U.S. 507; NIEMOTKO V. MARYLAND, 340
U.S. 268; STAUB V. CITY OF BAXLEY, 355 U.S. 313. 

TO EXPERIENCED LAWYERS IT IS COMMONPLACE THAT THE OUTCOME OF A
LAWSUIT - AND HENCE THE VINDICATION OF LEGAL RIGHTS - DEPENDS MORE
OFTEN ON HOW THE FACTFINDER APPRAISES THE FACTS THAN ON A DISPUTED
CONSTRUCTION OF A STATUTE OR INTERPRETATION OF A LINE OF PRECEDENTS. 
THUS THE PROCEDURES BY WHICH THE FACTS OF THE CASE ARE DETERMINED
ASSUME AN IMPORTANCE FULLY AS GREAT AS THE VALIDITY OF THE SUBSTANTIVE
RULE OF LAW TO BE APPLIED.  AND THE MORE IMPORTANT THE RIGHTS AT STAKE
THE MORE IMPORTANT MUST BE THE PROCEDURAL SAFEGUARDS SURROUNDING THOSE
RIGHTS.  CF. POWELL V. ALABAMA, 287 U.S. 45, 71.  WHEN THE STATE
UNDERTAKES TO RESTRAIN UNLAWFUL ADVOCACY IT MUST PROVIDE PROCEDURES
WHICH ARE ADEQUATE TO SAFEGUARD AGAINST INFRINGEMENT OF
CONSTITUTIONALLY PROTECTED RIGHTS - RIGHTS WHICH WE VALUE MOST HIGHLY
AND WHICH ARE ESSENTIAL TO THE WORKINGS OF A FREE SOCIETY.  MOREOVER,
SINCE ONLY CONSIDERATIONS OF THE GREATEST URGENCY CAN JUSTIFY
RESTRICTIONS ON SPEECH, AND SINCE THE VALIDITY OF A RESTRAINT ON SPEECH
IN EACH CASE DEPENDS ON CAREFUL ANALYSIS OF THE PARTICULAR
CIRCUMSTANCES, CF. DENNIS V. UNITED STATES, SUPRA; WHITNEY V.
CALIFORNIA, SUPRA, THE PROCEDURES BY WHICH THE FACTS OF THE CASE ARE
ADJUDICATED ARE OF SPECIAL IMPORTANCE AND THE VALIDITY OF THE RESTRAINT
MAY TURN ON THE SAFEGUARDS WHICH THEY AFFORD.  COMPARE KUNZ V. NEW
YORK, 340 U.S. 290, WITH FEINER V. NEW YORK, 340 U.S. 315.  IT BECOMES
ESSENTIAL, THEREFORE, TO SCRUTINIZE THE PROCEDURES BY WHICH CALIFORNIA
HAS SOUGHT TO RESTRAIN SPEECH. 

THE PRINCIPAL FEATURE OF THE CALIFORNIA PROCEDURE, AS THE APPELLEES
THEMSELVES POINT OUT, IS THAT THE APPELLANTS, "AS TAXPAYERS UNDER STATE
LAW, HAVE THE AFFIRMATIVE BURDEN OF PROOF, IN COURT AS WELL AS BEFORE
THE ASSESSOR  ...  .  IT IS THEIR BURDEN TO SHOW THAT THEY ARE PROPER
PERSONS TO QUALIFY UNDER THE SELF-EXECUTING CONSTITUTIONAL PROVISION
FOR THE TAX EXEMPTION IN QUESTION - I.E., THAT THEY ARE NOT PERSONS WHO
ADVOCATE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR THE
STATE BY FORCE OR VIOLENCE OR OTHER UNLAWFUL MEANS OR WHO ADVOCATE THE
SUPPORT OF A FOREIGN GOVERNMENT AGAINST THE UNITED STATES IN THE EVENT
OF HOSTILITIES  ...  .  THE BURDEN IS ON THEM TO PRODUCE EVIDENCE
JUSTIFYING THEIR CLAIM OF EXEMPTION."  (FN6)  NOT ONLY DOES THE INITIAL
BURDEN OF BRINGING FORTH PROOF OF NONADVOCACY REST ON THE TAXPAYER, BUT
THROUGHOUT THE JUDICIAL AND ADMINISTRATIVE PROCEEDINGS THE BURDEN LIES
ON THE TAXPAYER OF PERSUADING THE ASSESSOR, OR THE COURT, THAT HE FALLS
OUTSIDE THE CLASS DENIED THE TAX EXEMPTION.  THE DECLARATION REQUIRED
BY SEC. 32 IS BUT A PART OF THE PROBATIVE PROCESS BY WHICH THE STATE
SEEKS TO DETERMINE WHICH TAXPAYERS FALL INTO THE PROSCRIBED CATEGORY. 
(FN7)  THUS THE DECLARATION CANNOT BE REGARDED AS HAVING SUCH
INDEPENDENT SIGNIFICANCE THAT FAILURE TO SIGN IT PRECLUDES REVIEW OF
THE VALIDITY OF THE PROCEDURE OF WHICH IT IS A PART.  CF. STAUB V. CITY
OF BAXLEY, SUPRA, AT 318-319.  THE QUESTION FOR DECISION, THEREFORE, IS
WHETHER THIS ALLOCATION OF THE BURDEN OF PROOF, ON AN ISSUE CONCERNING
FREEDOM OF SPEECH, FALLS SHORT OF THE REQUIREMENTS OF DUE PROCESS. 

IT IS OF COURSE WITHIN THE POWER OF THE STATE TO REGULATE PROCEDURES
UNDER WHICH ITS LAWS ARE CARRIED OUT, INCLUDING THE BURDEN OF PRODUCING
EVIDENCE AND THE BURDEN OF PERSUASION, "UNLESS IN SO DOING IT OFFENDS
SOME PRINCIPLE OF JUSTICE SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF
OUR PEOPLE AS TO BE RANKED AS FUNDAMENTAL."  SNYDER V. MASSACHUSETTS,
291 U.S. 97, 105.  "OF COURSE THE LEGISLATURE MAY GO A GOOD WAY IN
RAISING  ...  PRESUMPTIONS OR IN CHANGING THE BURDEN OF PROOF, BUT
THERE ARE LIMITS  ...  .  IT IS NOT WITHIN THE PROVINCE OF A
LEGISLATURE TO DECLARE AN INDIVIDUAL GUILTY OR PRESUMPTIVELY GUILTY OF
A CRIME."  MCFARLAND V. AMERICAN SUGAR REFINING CO., 241 U.S. 79, 86. 
THE LEGISLATURE CANNOT "PLACE UPON ALL DEFENDANTS IN CRIMINAL CASES THE
BURDEN OF GOING FORWARD WITH THE EVIDENCE  ...  .  IT CANNOT VALIDLY
COMMAND THAT THE FINDING OF AN INDICTMENT, OR MERE PROOF OF THE
IDENTITY OF THE ACCUSED, SHOULD CREATE A PRESUMPTION OF THE EXISTENCE
OF ALL THE FACTS ESSENTIAL TO GUILT.  THIS IS NOT PERMISSIBLE."  TOT V.
UNITED STATES, 319 U.S. 463, 469.  OF COURSE, THE BURDEN OF GOING
FORWARD WITH THE EVIDENCE AT SOME STAGES OF A CRIMINAL TRIAL MAY BE
PLACED ON THE DEFENDANT, BUT ONLY AFTER THE STATE HAS "PROVED ENOUGH TO
MAKE IT JUST FOR THE DEFENDANT TO BE REQUIRED TO REPEL WHAT HAS BEEN
PROVED WITH EXCUSE OR EXPLANATION, OR AT LEAST THAT UPON A BALANCING OF
CONVENIENCE OR OF THE OPPORTUNITIES FOR KNOWLEDGE THE SHIFTING OF THE
BURDEN WILL BE FOUND TO BE AN AID TO THE ACCUSER WITHOUT SUBJECTING THE
ACCUSED TO HARDSHIP OR OPPRESSION."   MORRISON V. CALIFORNIA, 291 U.S.
82, 88-89.  IN CIVIL CASES TOO THIS COURT HAS STRUCK DOWN STATE
STATUTES UNFAIRLY SHIFTING THE BURDEN OF PROOF.  WESTERN & A.R. CO. V.
HENDERSON, 279 U.S. 639; CF. MOBILE, J.&K.C.R. CO. V. TURNIPSEED, 219
U.S. 35, 43.    IT IS TRUE THAT DUE PROCESS MAY NOT ALWAYS COMPEL THE
FULL FORMALITIES OF A CRIMINAL PROSECUTION BEFORE CRIMINAL ADVOCACY CAN
BE SUPPRESSED OR DETERRED, BUT IT IS CLEAR THAT THE STATE WHICH
ATTEMPTS TO DO SO MUST PROVIDE PROCEDURES AMPLY ADEQUATE TO SAFEGUARD
AGAINST INVASION SPEECH WHICH THE CONSTITUTION PROTECTS.  KINGSLEY
BOOKS, INC., V. BROWN, SUPRA.  IT IS, OF COURSE, FAMILIAR PRACTICE IN
THE ADMINISTRATION OF A TAX PROGRAM FOR THE TAXPAYER TO CARRY THE
BURDEN OF INTRODUCING EVIDENCE TO REBUT THE DETERMINATION OF THE
COLLECTOR.  PHILLIPS V. DIME TRUST CO., 284 U.S. 160, 167; BROWN V.
HELVERING, 291 U.S. 193, 199.  BUT WHILE THE FAIRNESS OF PLACING THE
BURDEN OF PROOF ON THE TAXPAYER IN MOST CIRCUMSTANCES IS RECOGNIZED,
THIS COURT HAS NOT HESITATED TO DECLARE A SUMMARY TAX-COLLECTION
PROCEDURE A VIOLATION OF DUE PROCESS WHEN THE PURPORTED TAX WAS SHOWN
TO BE IN REALITY A PENALTY FOR A CRIME.  LIPKE V. LEDERER, 259 U.S.
557; CF. HELWIG V. UNITED STATES, 188 U.S. 605.  THE UNDERLYING
RATIONALE OF THESE CASES IS THAT WHERE A PERSON IS TO SUFFER A PENALTY
FOR CRIME HE IS ENTITLED TO GREATER PROCEDURAL SAFEGUARDS THAN WHEN
ONLY THE AMOUNT OF HIS TAX LIABILITY IS IN ISSUE.  SIMILARLY IT DOES
NOT FOLLOW THAT BECAUSE ONLY A TAX LIABILITY IS HERE INVOLVED, THE
ORDINARY TAX ASSESSMENT PROCEDURES ARE ADEQUATE WHEN APPLIED TO
PENALIZE SPEECH. 

IT IS TRUE THAT IN THE PRESENT CASE THE APPELLEES PURPORT TO DO NO
MORE THAN COMPUTE THE AMOUNT OF THE TAXPAYER'S LIABILITY IN ACCORDANCE
WITH THE USUAL PROCEDURES, BUT IN FACT THEY HAVE UNDERTAKEN TO
DETERMINE WHETHER CERTAIN SPEECH FALLS WITHIN A CLASS WHICH
CONSTITUTIONALLY MAY BE CURTAILED.  AS CASES DECIDED IN THIS COURT HAVE
ABUNDANTLY DEMONSTRATED, THE LINE BETWEEN SPEECH UNCONDITIONALLY
GUARANTEED AND SPEECH WHICH MAY LEGITIMATELY BE REGULATED, SUPPRESSED,
OR PUNISHED IS FINELY DRAWN.  THOMAS V. COLLINS, 323 U.S. 516; CF.
YATES V. UNITED STATES, 354 U.S. 298.  THE SEPARATION OF LEGITIMATE
FROM ILLEGITIMATE SPEECH CALLS FOR MORE SENSITIVE TOOLS THAN CALIFORNIA
HAS SUPPLIED.  IN ALL KINDS OF LITIGATION IT IS PLAIN THAT WHERE THE
BURDEN OF PROOF LIES MAY BE DECISIVE OF THE OUTCOME.  CITIES SERVICE
OIL CO. V. DUNLAP, 308 U.S. 208; UNITED STATES V. NEW YORK, N.H.&H.R.
CO., 355 U.S. 253; SAMPSON V. CHANNELL, 110 F.2D 754, 758.  THERE IS
ALWAYS IN LITIGATION A MARGIN OF ERROR, REPRESENTING ERROR IN
FACTFINDING, WHICH BOTH PARTIES MUST TAKE INTO ACCOUNT.  WHERE ONE
PARTY HAS AT STAKE AN INTEREST OF TRANSCENDING VALUE - AS A CRIMINAL
DEFENDANT HIS LIBERTY - THIS MARGIN OF ERROR IS REDUCED AS TO HIM BY
THE PROCESS OF PLACING ON THE OTHER PARTY THE BURDEN OF PRODUCING A
SUFFICIENCY OF PROOF IN THE FIRST INSTANCE, AND OF PERSUADING THE
FACTFINDER AT THE CONCLUSION OF THE TRIAL OF HIS GUILT BEYOND A
REASONABLE DOUBT.  DUE PROCESS COMMANDS THAT NO MAN SHALL LOSE HIS
LIBERTY UNLESS THE GOVERNMENT HAS BORNE THE BURDEN OF PRODUCING THE
EVIDENCE AND CONVINCING THE FACTFINDER OF HIS GUILT.  TOT V. UNITED
STATES, SUPRA.  WHERE THE TRANSCENDENT VALUE OF SPEECH IS INVOLVED, DUE
PROCESS CERTAINLY REQUIRES IN THE CIRCUMSTANCES OF THIS CASE THAT THE
STATE BEAR THE BURDEN OF PERSUASION TO SHOW THAT THE APPELLANTS ENGAGED
IN CRIMINAL SPEECH.  CF. KINGSLEY BOOKS, INC., V. BROWN, SUPRA. 

THE VICE OF THE PRESENT PROCEDURE IS THAT, WHERE PARTICULAR SPEECH
FALLS CLOSE TO THE LINE SEPARATING THE LAWFUL AND THE UNLAWFUL, THE
POSSIBILITY OF MISTAKEN FACTFINDING - INHERENT IN ALL LITIGATION - WILL
CREATE THE DANGER THAT THE LEGITIMATE UTTERANCE WILL BE PENALIZED.  THE
MAN WHO KNOWS THAT HE MUST BRING FORTH PROOF AND PERSUADE ANOTHER OF
THE LAWFULNESS OF HIS CONDUCT NECESSARILY MUST STEER FAR WIDER OF THE
UNLAWFUL ZONE THAN IF THE STATE MUST BEAR THESE BURDENS.  THIS IS
ESPECIALLY TO BE FEARED WHEN THE COMPLEXITY OF THE PROOFS AND THE
GENERALITY OF THE STANDARDS APPLIED, CF. DENNIS V. UNITED STATES,
SUPRA, PROVIDE BUT SHIFTING SANDS ON WHICH THE LITIGANT MUST MAINTAIN
HIS POSITION.  HOW CAN A CLAIMANT WHOSE DECLARATION IS REJECTED
POSSIBLY SUSTAIN THE BURDEN OF PROVING THE NEGATIVE OF THESE COMPLEX
FACTUAL ELEMENTS?  IN PRACTICAL OPERATION, THEREFORE, THIS PROCEDURAL
DEVICE MUST NECESSARILY PRODUCE A RESULT WHICH THE STATE COULD NOT
COMMAND DIRECTLY.  IT CAN ONLY RESULT IN A DETERRENCE OF SPEECH WHICH
THE CONSTITUTION MAKES FREE.  "IT IS APPARENT THAT A CONSTITUTIONAL
PROHIBITION CANNOT BE TRANSGRESSED INDIRECTLY BY THE CREATION OF A
STATUTORY PRESUMPTION ANY MORE THAN IT CAN BE VIOLATED BY DIRECT
ENACTMENT.  THE POWER TO CREATE PRESUMPTIONS IS NOT A MEANS OF ESCAPE
FROM CONSTITUTIONAL RESTRICTIONS."  BAILEY V. ALABAMA, 219 U.S. 219,
239. 

THE APPELLEES, IN CONTROVERTING THIS POSITION, RELY ON CASES IN WHICH
THIS COURT HAS SUSTAINED THE VALIDITY OF LOYALTY OATHS REQUIRED OF
PUBLIC EMPLOYEES, GARNER V. BOARD OF PUBLIC WORKS, 341 U.S. 716,
CANDIDATES FOR PUBLIC OFFICE, GERENDE V. BOARD OF SUPERVISORS, 341 U.S.
56, AND OFFICERS OF LABOR UNIONS, AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, SUPRA.  IN THESE CASES, HOWEVER, THERE WAS NO ATTEMPT DIRECTLY
TO CONTROL SPEECH BUT RATHER TO PROTECT, FROM AN EVIL SHOWN TO BE
GRAVE, SOME INTEREST CLEARLY WITHIN THE SPHERE OF GOVERNMENTAL
CONCERN.  THE PURPOSE OF THE LEGISLATION SUSTAINED IN THE DOUDS CASE,
THE COURT FOUND, WAS TO MINIMIZE THE DANGER OF POLITICAL STRIKES
DISRUPTIVE OF INTERSTATE COMMERCE BY DISCOURAGING LABOR UNIONS FROM
ELECTING COMMUNIST PARTY MEMBERS TO UNION OFFICE.  WHILE THE COURT
RECOGNIZED THAT THE NECESSARY EFFECT OF THE LEGISLATION WAS TO
DISCOURAGE THE EXERCISE OF RIGHTS PROTECTED BY THE FIRST AMENDMENT,
THIS CONSEQUENCE WAS SAID TO BE ONLY INDIRECT.  THE CONGRESSIONAL
PURPOSE WAS TO ACHIEVE AN OBJECTIVE OTHER THAN RESTRAINT ON SPEECH. 
ONLY THE METHOD OF ACHIEVING THIS END TOUCHED ON PROTECTED RIGHTS AND
THAT ONLY TANGENTIALLY.  THE EVIL AT WHICH CONGRESS HAD ATTEMPTED TO
STRIKE IN THAT CASE WAS THOUGHT SUFFICIENTLY GRAVE TO JUSTIFY LIMITED
INFRINGEMENT OF POLITICAL RIGHTS.  SIMILAR CONSIDERATIONS GOVERNED THE
OTHER CASES.  EACH CASE CONCERNED A LIMITED CLASS OF PERSONS IN OR
ASPIRING TO PUBLIC POSITIONS BY VIRTUE OF WHICH THEY COULD, IF EVILLY
MOTIVATED, CREATE SERIOUS DANGER TO THE PUBLIC SAFETY.  THE PRINCIPAL
AIM OF THOSE STATUTES WAS NOT TO PENALIZE POLITICAL BELIEFS BUT TO DENY
POSITIONS TO PERSONS SUPPOSED TO BE DANGEROUS BECAUSE THE POSITION
MIGHT BE MISUSED TO THE DETRIMENT OF THE PUBLIC.  THE PRESENT
LEGISLATION, HOWEVER, CAN HAVE NO SUCH JUSTIFICATION.  IT PURPORTS TO
DEAL DIRECTLY WITH SPEECH AND THE EXPRESSION OF POLITICAL IDEAS. 
"ENCOURAGEMENT TO LOYALTY TO OUR INSTITUTIONS  ...  IS A DOCTRINE WHICH
THE STATE HAS PLAINLY PROMULGATED AND INTENDS TO FOSTER."  48 CAL. 2D,
AT 439, 311 P.2D, AT 520.  THE STATE ARGUES THAT VETERANS AS A CLASS
OCCUPY A POSITION OF SPECIAL TRUST AND INFLUENCE IN THE COMMUNITY, AND
THEREFORE ANY VETERAN WHO ENGAGES IN THE PROSCRIBED ADVOCACY
CONSTITUTES A SPECIAL DANGER TO THE STATE.  BUT WHILE A UNION OFFICIAL
OR PUBLIC EMPLOYEE MAY BE DEPRIVED OF HIS POSITION AND THEREBY REMOVED
FROM THE PLACE OF SPECIAL DANGER, THE STATE IS POWERLESS TO ERASE THE
SERVICE WHICH THE VETERAN HAS RENDERED HIS COUNTRY; THOUGH HE BE DENIED
A TAX EXEMPTION, HE REMAINS A VETERAN.  THE STATE, CONSEQUENTLY, CAN
ACT AGAINST THE VETERAN ONLY AS IT CAN ACT AGAINST ANY OTHER CITIZEN,
BY IMPOSING PENALTIES TO DETER THE UNLAWFUL CONDUCT. 

MOREOVER, THE OATHS REQUIRED IN THOSE CASES PERFORMED A VERY
DIFFERENT FUNCTION FROM THE DECLARATION IN ISSUE HERE.  IN THE EARLIER
CASES IT APPEARS THAT THE LOYALTY OATH, ONCE SIGNED, BECAME CONCLUSIVE
EVIDENCE OF THE FACTS ATTESTED SO FAR AS THE RIGHT TO OFFICE WAS
CONCERNED.  IF THE PERSON TOOK THE OATH HE RETAINED HIS POSITION.  THE
OATH WAS NOT PART OF A DEVICE TO SHIFT TO THE OFFICEHOLDER THE BURDEN
OF PROVING HIS RIGHT TO RETAIN HIS POSITION.  (FN8)  THE SIGNER, OF
COURSE, COULD BE PROSECUTED FOR PERJURY, BUT ONLY IN ACCORDANCE WITH
THE STRICT PROCEDURAL SAFEGUARDS SURROUNDING SUCH CRIMINAL
PROSECUTIONS.  IN THE PRESENT CASE, HOWEVER, IT IS CLEAR THAT THE
DECLARATION MAY BE ACCEPTED OR REJECTED ON THE BASIS OF INCOMPETENT
INFORMATION OR NO INFORMATION AT ALL.  IT IS ONLY A STEP IN A PROCESS
THROUGHOUT WHICH THE TAXPAYER MUST BEAR THE BURDEN OF PROOF. 

BELIEVING THAT THE PRINCIPLES OF THOSE CASES HAVE NO APPLICATION
HERE, WE HOLD THAT WHEN THE CONSTITUTIONAL RIGHT TO SPEAK IS SOUGHT TO
BE DETERRED BY A STATE'S GENERAL TAXING PROGRAM DUE PROCESS DEMANDS
THAT THE SPEECH BE UNENCUMBERED UNTIL THE STATE COMES FORWARD WITH
SUFFICIENT PROOF TO JUSTIFY ITS INHIBITION.  THE STATE CLEARLY HAS NO
SUCH COMPELLING INTEREST AT STAKE AS TO JUSTIFY A SHORT-CUT PROCEDURE
WHICH MUST INEVITABLY RESULT IN SUPPRESSING PROTECTED SPEECH. 
ACCORDINGLY, THOUGH THE VALIDITY OF SEC. 19 OF ART. XX OF THE STATE
CONSTITUTION BE CONCEDED ARGUENDO, ITS ENFORCEMENT THROUGH PROCEDURES
WHICH PLACE THE BURDENS OF PROOF AND PERSUASION ON THE TAXPAYER IS A
VIOLATION OF DUE PROCESS.  IT FOLLOWS FROM THIS THAT APPELLANTS COULD
NOT BE REQUIRED TO EXECUTE THE DECLARATION AS A CONDITION FOR OBTAINING
A TAX EXEMPTION OR AS A CONDITION FOR THE ASSESSOR PROCEEDING FURTHER
IN DETERMINING WHETHER THEY WERE ENTITLED TO SUCH AN EXEMPTION.  SINCE
THE ENTIRE STATUTORY PROCEDURE, BY PLACING THE BURDEN OF PROOF ON THE
CLAIMANTS, VIOLATED THE REQUIREMENTS OF DUE PROCESS, APPELLANTS WERE
NOT OBLIGED TO TAKE THE FIRST STEP IN SUCH A PROCEDURE. 

THE JUDGMENTS ARE REVERSED AND THE CAUSES ARE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  APPELLANT IN NO. 483 SUED FOR DECLARATORY RELIEF IN THE SUPERIOR
COURT OF CONTRA COSTA COUNTY.  FIVE JUDGES SITTING EN BANC HELD THAT
BOTH SEC. 19 OF ART. XX AND SEC. 32 OF THE REVENUE AND TAXATION CODE
WERE INVALID UNDER THE FOURTEENTH AMENDMENT AS RESTRICTIONS ON FREEDOM
OF SPEECH.  THE CALIFORNIA SUPREME COURT REVERSED.  48 CAL. 2D 903, 311
P.2D 546. 

APPELLANT IN NO. 484 SUED IN THE SUPERIOR COURT FOR THE CITY AND
COUNTY OF SAN FRANCISCO TO RECOVER TAXES PAID UNDER PROTEST AND FOR
DECLARATORY RELIEF.  THE COURT UPHELD THE VALIDITY OF BOTH THE
CONSTITUTIONAL PROVISION AND SEC. 32 OF THE CODE.  THE SUPREME COURT
AFFIRMED.  48 CAL. 2D 472, 311 P.2D 544. 

IN BOTH CASES THE SUPREME COURT ADOPTED THE REASONING OF ITS OPINION
IN FIRST UNITARIAN CHURCH V. COUNTY OF LOS ANGELES, 48 CAL. 2D 419, 311
P.2D 508, IN WHICH IDENTICAL ISSUES ARE DISCUSSED AT LENGTH. 
HEREINAFTER WE WILL REFER TO THAT OPINION AS EXPRESSING THE VIEWS OF
THE CALIFORNIA SUPREME COURT IN THE PRESENT CASES. 

FN2  SECTION 32 PROVIDES: 

"ANY STATEMENT, RETURN, OR OTHER DOCUMENT IN WHICH IS CLAIMED ANY
EXEMPTION, OTHER THAN THE HOUSEHOLDER'S EXEMPTION, FROM ANY PROPERTY
TAX IMPOSED BY THIS STATE OR ANY COUNTY, CITY OR COUNTY, CITY,
DISTRICT, POLITICAL SUBDIVISION, AUTHORITY, BOARD, BUREAU, COMMISSION
OR OTHER PUBLIC AGENCY OF THIS STATE SHALL CONTAIN A DECLARATION THAT
THE PERSON OR ORGANIZATION MAKING THE STATEMENT, RETURN, OR OTHER
DOCUMENT DOES NOT ADVOCATE THE OVERTHROW OF THE GOVERNMENT OF THE
UNITED STATES OR OF THE STATE OF CALIFORNIA BY FORCE OR VIOLENCE OR
OTHER UNLAWFUL MEANS NOR ADVOCATE THE SUPPORT OF A FOREIGN GOVERNMENT
AGAINST THE UNITED STATES IN EVENT OF HOSTILITIES.  IF ANY SUCH
STATEMENT, RETURN, OR OTHER DOCUMENT DOES NOT CONTAIN SUCH DECLARATION,
THE PERSON OR ORGANIZATION MAKING SUCH STATEMENT, RETURN, OR OTHER
DOCUMENT SHALL NOT RECEIVE ANY EXEMPTION FROM THE TAX TO WHICH THE
STATEMENT, RETURN, OR OTHER DOCUMENT PERTAINS.  ANY PERSON OR
ORGANIZATION WHO MAKES SUCH DECLARATION KNOWING IT TO BE FALSE IS
GUILTY OF A FELONY.  THIS SECTION SHALL BE CONSTRUED SO AS TO
EFFECTUATE THE PURPOSE OF SECTION 19 OF ARTICLE XX OF THE
CONSTITUTION." 

FN3  THIS CONTENTION WAS RAISED IN THE COMPLAINT AND IS ARGUED IN THE
BRIEF IN THIS COURT.  THE CALIFORNIA SUPREME COURT REJECTED THE
CONTENTION AS WITHOUT MERIT.  48 CAL. 2D 472, 475, 311 P.2D 544, 545
546. 

APPELLANTS ALSO ARGUE THAT THESE PROVISIONS ARE INVALID (1) AS
INVADING LIBERTY OF SPEECH PROTECTED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT; (2) AS DENYING EQUAL PROTECTION BECAUSE THE OATH
IS REQUIRED ONLY AS TO PROPERTY-TAX AND CORPORATION-INCOME-TAX
EXEMPTIONS, BUT NOT AS TO THE HOUSEHOLDER'S PERSONAL-INCOME-TAX, GIFT
TAX, INHERITANCE-TAX, OR SALES-TAX EXEMPTIONS; AND (3) AS VIOLATING THE
SUPREMACY CLAUSE BECAUSE THIS LEGISLATION INTRUDES IN A FIELD OF
EXCLUSIVE FEDERAL CONTROL, PENNSYLVANIA V. NELSON, 350 U.S. 497.  OUR
DISPOSITION OF THE CASES MAKES CONSIDERATIONS OF THESE QUESTIONS
UNNECESSARY. 

FN4  THE CALIFORNIA SUPREME COURT CONSTRUED THESE PROVISIONS AS
INAPPLICABLE TO MERE BELIEF.  ON ORAL ARGUMENT COUNSEL FOR THE TAXING
AUTHORITIES FURTHER CONCEDED THAT THE PROVISIONS WOULD NOT APPLY IN THE
CASE OF ADVOCACY OF MERE "ABSTRACT DOCTRINE."  SEE YATES V. UNITED
STATES, 354 U.S. 298, 312-327. 

FN5  APPELLANTS CONTEND THAT UNDER THIS COURT'S DECISION IN
PENNSYLVANIA V. NELSON, 350 U.S. 497, THE STATE CAN NO LONGER ENFORCE
ITS CRIMINAL STATUTES AIMED AT SUBVERSION.  WE NEED NOT DECIDE WHETHER
THIS CONTENTION IS SOUND; NOR NEED WE CONSIDER WHETHER, IF IT IS, IT
FOLLOWS THAT CALIFORNIA CANNOT DENY TAX EXEMPTIONS TO THOSE WHO IN FACT
ARE IN VIOLATION OF THE FEDERAL AND STATE SEDITION LAWS. 

FN6  THE CALIFORNIA SUPREME COURT HELD THAT SEC. 19 OF ART. XX OF THE
STATE CONSTITUTION WAS IN EFFECT SELF-EXECUTING.  "UNDER THE TAX LAWS
OF THE STATE WHOLLY APART FROM SECTION 32 IT IS THE DUTY OF THE
ASSESSOR TO ASCERTAIN THE FACTS WITH REFERENCE TO THE TAXABILITY OR
EXEMPTION FROM TAXATION OF PROPERTY WITHIN HIS JURISDICTION.  AND IT IS
ALSO THE DUTY OF THE PROPERTY OWNER TO COOPERATE WITH THE ASSESSOR AND
ASSIST HIM IN THE ASCERTAINMENT OF THESE FACTS BY DECLARATIONS UNDER
OATH."  48 CAL. 2D, AT 430, 311 P.2D, AT 514-515.    IN ALL EVENTS, IF
THE ASSESSOR "IS SATISFIED FROM HIS INVESTIGATIONS THAT THE EXEMPTION
SHOULD NOT BE ALLOWED HE MAY ASSESS THE PROPERTY AS NOT EXEMPT AND IF
CONTESTED COMPEL A DETERMINATION OF THE FACTS IN A SUIT TO RECOVER THE
TAX PAID UNDER PROTEST.  IN SUCH A CASE IT WOULD BE NECESSARY FOR THE
CLAIMANT TO ALLEGE AND PROVE FACTS WITH REFERENCE TO THE NATURE, EXTENT
AND CHARACTER OF THE PROPERTY WHICH WOULD JUSTIFY THE EXEMPTION AND
COMPLIANCE WITH ALL VALID REGULATIONS IN THE PRESENTATION AND
PROSECUTION OF THE CLAIM.  IN ANY EVENT IT IS THE DUTY OF THE ASSESSOR
TO ASCERTAIN THE FACTS FROM ANY LEGAL SOURCE AVAILABLE.  IN PERFORMING
THIS TASK HE IS ENGAGED IN THE ASSEMBLY OF FACTS WHICH ARE TO SERVE AS
A GUIDE IN ARRIVING AT HIS CONCLUSION WHETHER AN EXEMPTION SHOULD OR
SHOULD NOT BE ALLOWED.  THAT CONCLUSION IS IN NO WISE A FINAL
DETERMINATION THAT THE CLAIMANT BELONGS TO A CLASS PROSCRIBED BY
THE PRESUMPTION OF INNOCENCE AVAILABLE TO ALL IN CRIMINAL PROSECUTIONS
DOES NOT IN A CASE SUCH AS THIS RELIEVE OR PREVENT THE ASSESSOR FROM
MAKING THE INVESTIGATION ENJOINED UPON HIM BY LAW TO SEE THAT
EXEMPTIONS ARE NOT IMPROPERLY ALLOWED.  HIS ADMINISTRATIVE
DETERMINATION IS NOT BINDING ON THE TAX EXEMPTION CLAIMANT BUT IT IS
SUFFICIENT TO AUTHORIZE HIM TO TAX THE PROPERTY AS NONEXEMPT AND TO
PLACE THE BURDEN ON THE CLAIMANT TO TEST THE VALIDITY OF HIS
ADMINISTRATIVE DETERMINATION IN AN ACTION AT LAW."  48 CAL. 2D, AT 431
432, 311 P.2D, AT 515. 

FN7  IT IS SUGGESTED THAT THE OPINION OF THE CALIFORNIA SUPREME COURT
BE READ AS HOLDING THAT "THE FILING, WHETHER THE OATH BE TRUE OR FALSE,
WOULD CONCLUSIVELY ESTABLISH THE TAXPAYER'S ELIGIBILITY FOR AN
EXEMPTION."  BUT THE CALIFORNIA COURT EXPRESSLY STATES THAT "IT IS THE
DUTY OF THE ASSESSOR TO SEE THAT EXEMPTIONS ARE NOT ALLOWED CONTRARY TO
LAW AND THIS OF COURSE INCLUDES THOSE WHICH ARE CONTRARY TO THE
PROHIBITIONS PROVIDED FOR IN SECTION 19 OF ARTICLE XX," 48 CAL. 2D 419,
431, 311 P.2D 508, 515, AND THAT THE "MANDATORY AND PROHIBITORY"
PROVISION OF SEC. 19 OF ART. XX "APPLIES TO ALL TAX EXEMPTION
CLAIMANTS."  48 CAL. 2D, AT 428, 311 P.2D, AT 513.  INDEED, THE TAX
AUTHORITIES OF CALIFORNIA THEMSELVES POINT OUT THAT THE SIGNING OF THE
DECLARATION IS NOT CONCLUSIVE OF THE RIGHT TO THE TAX EXEMPTION.  THE
BRIEF OF THE TAXING AUTHORITIES IN THE COMPANION CASE, FIRST UNITARIAN
CHURCH V. COUNTY OF LOS ANGELES, POST, P. 545, STATES, "SECTION 32 IS
AN EVIDENTIARY PROVISION.  ITS PURPOSE AND EFFECT ARE TO AFFORD TO THE
ASSESSOR INFORMATION TO GUIDE HIS COMPLIANCE WITH AND HIS ENFORCEMENT
OF THE CONSTITUTION'S PROHIBITION  ...  ." 

IT IS ALSO SUGGESTED THAT THIS COURT CONSTRUE THE CALIFORNIA
LEGISLATION CONTRARY TO THE CLEARLY EXPRESSED CONSTRUCTION OF THE
CALIFORNIA SUPREME COURT AND THUS AVOID DECISION OF THE QUESTION OF
PROCEDURAL DUE PROCESS.  BUT THIS CONSTRUCTION WOULD NOT AVOID DECISION
OF CONSTITUTIONAL QUESTIONS BUT RATHER WOULD CREATE THE NECESSITY FOR
DECISION OF THE BROADER CONSTITUTIONAL QUESTION OF THE VALIDITY OF SEC.
19 OF ART. XX.  A MORE FUNDAMENTAL OBJECTION TO THE SUGGESTION, OF
COURSE, IS THAT IT DOES VIOLENCE TO THE BASIC CONSTITUTIONAL PRINCIPLE
THAT THE CONSTRUCTION OF STATE LAWS IS THE EXCLUSIVE RESPONSIBILITY OF
THE STATE COURTS. 

FN8  SIGNIFICANTLY, THE NEW YORK STATUTE WHICH THIS COURT UPHELD IN
ADLER V. BOARD OF EDUCATION, 342 U.S. 485, PROVIDED THAT PUBLIC-SCHOOL
TEACHERS COULD BE DISMISSED ON SECURITY GROUNDS ONLY AFTER A HEARING AT
WHICH THE OFFICIAL PRESSING THE CHARGES SUSTAINED HIS BURDEN OF PROOF
BY A FAIR PREPONDERANCE OF THE EVIDENCE. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING.* 

*NOTE:  THIS OPINION APPLIES ALSO TO NO. 382, FIRST UNITARIAN CHURCH
V. COUNTY OF LOS ANGELES, AND NO. 385, VALLEY UNITARIAN-UNIVERSALIST
CHURCH V. COUNTY OF LOS ANGELES, POST, P. 545. 

CALIFORNIA, IN EFFECT, HAS IMPOSED A TAX ON BELIEF AND EXPRESSION. 
IN MY VIEW, A LEVY OF THIS NATURE IS WHOLLY OUT OF PLACE IN THIS
COUNTRY; SO FAR AS I KNOW SUCH A THING HAS NEVER EVEN BEEN ATTEMPTED
BEFORE.  I BELIEVE THAT IT CONSTITUTES A PALPABLE VIOLATION OF THE
FIRST AMENDMENT, WHICH OF COURSE IS APPLICABLE IN ALL ITS PARTICULARS
TO THE STATES.  SEE, E.G., STAUB V. CITY OF BAXLEY, 355 U.S. 313;
POULOS V. NEW HAMPSHIRE, 345 U.S. 395, 396-397; EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1, 8; THOMAS V. COLLINS, 323 U.S. 516; BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624, 639; DOUGLAS V. JEANNETTE, 319
U.S. 157, 162; MARTIN V. STRUTHERS, 319 U.S. 141; MURDOCK V.
PENNSYLVANIA, 319 U.S. 105, 109; CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S.
568, 571; BRIDGES V. CALIFORNIA, 314 U.S. 252, 263; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303; SCHNEIDER V. STATE, 308 U.S. 147, 160;
LOVELL V. GRIFFIN, 303 U.S. 444, 450; DE JONGE V. OREGON, 299 U.S. 353,
364; GITLOW V. NEW YORK, 268 U.S. 652, 666.  THE MERE FACT THAT
CALIFORNIA ATTEMPTS TO EXACT THIS ILL-CONCEALED PENALTY FROM
INDIVIDUALS AND CHURCHES AND THAT ITS VALIDITY HAS TO BE CONSIDERED IN
THIS COURT ONLY EMPHASIZES HOW DANGEROUSLY FAR WE HAVE DEPARTED FROM
THE FUNDAMENTAL PRINCIPLES OF FREEDOM DECLARED IN THE FIRST AMENDMENT. 
WE SHOULD NEVER FORGET THAT THE FREEDOMS SECURED BY THAT AMENDMENT -
SPEECH, PRESS, RELIGION, PETITION AND ASSEMBLY - ARE ABSOLUTELY
INDISPENSABLE FOR THE PRESERVATION OF A FREE SOCIETY IN WHICH
GOVERNMENT IS BASED UPON THE CONSENT OF AN INFORMED CITIZENRY AND IS
DEDICATED TO THE PROTECTION OF THE RIGHTS OF ALL, EVEN THE MOST
DESPISED MINORITIES.  SEE AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382, 445 (DISSENTING OPINION); DENNIS V. UNITED STATES, 341 U.S.
494, 580 (DISSENTING OPINION). 

THIS CASE OFFERS JUST ANOTHER EXAMPLE OF A WIDE-SCALE EFFORT BY
GOVERNMENT IN THIS COUNTRY TO IMPOSE PENALTIES AND DISABILITIES ON
EVERYONE WHO IS OR IS SUSPECTED OF BEING A "COMMUNIST" OR WHO IS NOT
READY AT ALL TIMES AND ALL PLACES TO SWEAR HIS LOYALTY TO STATE AND
NATION.  COMPARE ADLER V. BOARD OF EDUCATION, 342 U.S. 485, 496
(DISSENTING OPINION); WIEMAN V. UPDEGRAFF, 344 U.S. 183, 193
(CONCURRING OPINION); BARSKY V. BOARD OF REGENTS, 347 U.S. 442, 456,
472 (DISSENTING OPINIONS).  GOVERNMENT EMPLOYEES, LAWYERS, DOCTORS,
TEACHERS, PHARMACISTS, VETERINARIANS, SUBWAY CONDUCTORS, INDUSTRIAL
WORKERS AND A MULTITUDE OF OTHERS HAVE BEEN DENIED AN OPPORTUNITY TO
WORK AT THEIR TRADE OR PROFESSION FOR THESE REASONS.  HERE A TAX IS
LEVIED UNLESS THE TAXPAYER MAKES AN OATH THAT HE DOES NOT AND WILL NOT
IN THE FUTURE ADVOCATE CERTAIN THINGS; IN OHIO THOSE WITHOUT JOBS HAVE
BEEN DENIED UNEMPLOYMENT INSURANCE UNLESS THEY ARE W LLING TO SWEAR
THAT THEY DO NOT HOLD SPECIFIC VIEWS; AND CONGRESS HAS EVEN ATTEMPTED
TO DENY PUBLIC HOUSING TO NEEDY FAMILIES UNLESS THEY FIRST DEMONSTRATE
THEIR LOYALTY.  THESE ARE MERELY RANDOM SAMPLES; I WILL NOT TAKE TIME
HERE TO REFER TO INNUMERABLE OTHERS, SUCH AS OATHS FOR HUNTERS AND
FISHERMEN, WRESTLERS AND BOXERS AND JUNK DEALERS. 

I AM CONVINCED THAT THIS WHOLE BUSINESS OF PENALIZING PEOPLE BECAUSE
OF THEIR VIEWS AND EXPRESSIONS CONCERNING GOVERNMENT IS HOPELESSLY
REPUGNANT TO THE PRINCIPLES OF FREEDOM UPON WHICH THIS NATION WAS
FOUNDED AND WHICH HAVE HELPED TO MAKE IT THE GREATEST IN THE WORLD.  AS
STATED IN PRIOR CASES, I BELIEVE "THAT THE FIRST AMENDMENT GRANTS AN
ABSOLUTE RIGHT TO BELIEVE IN ANY GOVERNMENTAL SYSTEM, TO DISCUSS ALL
GOVERNMENTAL AFFAIRS, AND TO ARGUE FOR DESIRED CHANGES IN THE EXISTING
ORDER.  THIS FREEDOM IS TOO DANGEROUS FOR BAD, TYRANNICAL GOVERNMENTS
TO PERMIT.  BUT THOSE WHO WROTE AND ADOPTED OUR FIRST AMENDMENT WEIGHED
THOSE DANGERS AGAINST THE DANGERS OF CENSORSHIP AND DELIBERATELY CHOSE
THE FIRST AMENDMENT'S UNEQUIVOCAL COMMAND THAT FREEDOM OF ASSEMBLY,
PETITION, SPEECH AND PRESS SHALL NOT BE ABRIDGED.  I HAPPEN TO BELIEVE
THIS WAS A WISE CHOICE AND THAT OUR FREE WAY OF LIFE ENLISTS SUCH
RESPECT AND LOVE THAT OUR NATION CANNOT BE IMPERILED BY MERE TALK." 
CARLSON V. LANDON, 342 U.S. 524, 555-556 (DISSENTING OPINION). 

LOYALTY OATHS, AS WELL AS OTHER CONTEMPORARY "SECURITY MEASURES,"
TEND TO STIFLE ALL FORMS OF UNORTHODOX OR UNPOPULAR THINKING OR
EXPRESSION - THE KIND OF THOUGHT AND EXPRESSION WHICH HAS PLAYED SUCH A
VITAL AND BENEFICIAL ROLE IN THE HISTORY OF THIS NATION.  THE RESULT IS
A STULTIFYING CONFORMITY WHICH IN THE END MAY WELL TURN OUT TO BE MORE
DESTRUCTIVE TO OUR FREE SOCIETY THAN FOREIGN AGENTS COULD EVER HOPE TO
BE.  THE COURSE WHICH WE HAVE BEEN FOLLOWING THE LAST DECADE IS NOT THE
COURSE OF A STRONG, FREE, SECURE PEOPLE, BUT THAT OF THE FRIGHTENED,
THE INSECURE, THE INTOLERANT.  I AM CERTAIN THAT LOYALTY TO THE UNITED
STATES CAN NEVER BE SECURED BY THE ENDLESS PROLIFERATION OF "LOYALTY"
OATHS; LOYALTY MUST ARISE SPONTANEOUSLY FROM THE HEARTS OF PEOPLE WHO
LOVE THEIR COUNTRY AND RESPECT THEIR GOVERNMENT.  I ALSO ADHERE TO THE
PROPOSITION THAT THE "FIRST AMENDMENT PROVIDES THE ONLY KIND OF
SECURITY SYSTEM THAT CAN PRESERVE A FREE GOVERNMENT - ONE THAT LEAVES
THE WAY WIDE OPEN FOR PEOPLE TO FAVOR, DISCUSS, ADVOCATE, OR INCITE
CAUSES AND DOCTRINES HOWEVER OBNOXIOUS AND ANTAGONISTIC SUCH VIEWS MAY
BE TO THE REST OF US."  YATES V. UNITED STATES, 354 U.S. 298, 344
(SEPARATE OPINION). 

IF IT BE ASSUMED HOWEVER, AS MR. JUSTICE BRENNAN DOES FOR PURPOSES OF
THIS CASE, THAT CALIFORNIA MAY TAX THE EXPRESSION OF CERTAIN VIEWS, I
AM IN FULL AGREEMENT WITH HIM THAT THE PROCEDURES IT HAS PROVIDED TO
DETERMINE WHETHER PETITIONERS ARE ENGAGED IN "TAXABLE" ADVOCACY VIOLATE
THE REQUIREMENTS OF DUE PROCESS. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AGREES, CONCURRING. 

WHILE I SUBSTANTIALLY AGREE WITH THE OPINION OF THE COURT, I WILL
STATE MY REASONS MORE FULLY AND MORE EXPLICITLY. 

I. THE STATE BY THE DEVICE OF THE LOYALTY OATH PLACES THE BURDEN OF
PROVING LOYALTY ON THE CITIZEN.  THAT PROCEDURAL DEVICE GOES AGAINST
THE GRAIN OF OUR CONSTITUTIONAL SYSTEM, FOR EVERY MAN IS PRESUMED
INNOCENT UNTIL GUILT IS ESTABLISHED.  THIS TECHNIQUE IS AN ANCIENT ONE
THAT WAS DENOUNCED IN AN EARLY PERIOD OF OUR HISTORY. 

ALEXANDER HAMILTON, WRITING IN 1784 UNDER THE NAME PHOCION, SAID: 

"  ...  LET IT BE SUPPOSED THAT INSTEAD OF THE MODE OF INDICTMENT AND
TRIAL BY JURY, THE LEGISLATURE WAS TO DECLARE, THAT EVERY CITIZEN WHO
DID NOT SWEAR HE HAD NEVER ADHERED TO THE KING OF GREAT BRITAIN, SHOULD
INCUR ALL THE PENALTIES WHICH OUR TREASON LAWS PRESCRIBE.  WOULD THIS
NOT BE ...  A DIRECT INFRINGEMENT OF THE CONSTITUTION?  ...  IT IS
SUBSTITUTING A NEW AND ARBITRARY MODE OF PROSECUTION TO THAT ANCIENT
AND HIGHLY ESTEEMED ONE, RECOGNIZED BY THE LAWS AND THE CONSTITUTION OF
THE STATE, - I MEAN THE TRIAL BY JURY."  4 THE WORKS OF ALEXANDER
HAMILTON (FED. ED. 1904) 269-270. 

HAMILTON COMPARED THAT HYPOTHETICAL LAW TO AN ACTUAL ONE PASSED BY
NEW YORK ON MARCH 27, 1778, WHEREBY A PERSON WHO HAD SERVED THE KING OF
ENGLAND IN ENUMERATED WAYS WAS DECLARED "TO BE UTTERLY DISABLED
DISQUALIFIED AND INCAPACITATED TO VOTE EITHER BY BALLOT OR VIVA VOCE AT
ANY ELECTION" IN NEW YORK.  N.Y. LAWS 1777-1784, 35.  AN OATH WAS
REQUIRED (FN1) IN ENFORCEMENT OF THAT LAW.  (FN2) 

HAMILTON CALLED THIS "A SUBVERSION OF ONE GREAT PRINCIPLE OF SOCIAL
SECURITY:  TO WIT, THAT EVERY MAN SHALL BE PRESUMED INNOCENT UNTIL HE
IS PROVED GUILTY."  4 THE WORKS OF ALEXANDER HAMILTON (FED. ED. 1904)
269.  HE WENT ON TO SAY "THIS WAS TO INVERT THE ORDER OF THINGS; AND,
INSTEAD OF OBLIGING THE STATE TO PROVE THE GUILT IN ORDER TO INFLICT
THE PENALTY, IT WAS TO OBLIGE THE CITIZEN TO ESTABLISH HIS OWN
INNOCENCE TO AVOID THE PENALTY.  IT WAS TO EXCITE SCRUPLES IN THE
HONEST AND CONSCIENTIOUS, AND TO HOLD OUT A BRIBE TO PERJURY."  IBID. 

IF THE AIM IS TO APPREHEND THOSE WHO HAVE LIFTED A HAND AGAINST THE
GOVERNMENT, THE PROCEDURE IS UNCONSTITUTIONAL. 

IF ONE CONSPIRES TO OVERTHROW THE GOVERNMENT, HE COMMITS A CRIME.  TO
MAKE HIM SWEAR HE IS INNOCENT TO AVOID THE CONSEQUENCES OF A LAW IS TO
PUT ON HIM THE BURDEN OF PROVING HIS INNOCENCE.  THAT METHOD DOES NOT
SQUARE WITH OUR STANDARDS OF PROCEDURAL DUE PROCESS, AS THE OPINION OF
THE COURT POINTS OUT. 

THE COURT IN CUMMINGS V. MISSOURI, 4 WALL.  277, 328, DENOUNCED
ANOTHER EXPURGATORY OATH THAT HAD SOME OF THE VICES OF THE PRESENT
ONE. 

"THE CLAUSES IN QUESTION SUBVERT THE PRESUMPTIONS OF INNOCENCE, AND
ALTER THE RULES OF EVIDENCE, WHICH HERETOFORE, UNDER THE UNIVERSALLY
RECOGNIZED PRINCIPLES OF THE COMMON LAW, HAVE BEEN SUPPOSED TO BE
FUNDAMENTAL AND UNCHANGEABLE.  THEY ASSUME THAT THE PARTIES ARE GUILTY;
THEY CALL UPON THE PARTIES TO ESTABLISH THEIR INNOCENCE; AND THEY
DECLARE THAT SUCH INNOCENCE CAN BE SHOWN ONLY IN ONE WAY - BY AN
INQUISITION, IN THE FORM OF AN EXPURGATORY OATH, INTO THE CONSCIENCES
OF THE PARTIES." 

II.   IF THE AIM OF THE LAW IS NOT TO APPREHEND CRIMINALS BUT TO
PENALIZE ADVOCACY, IT LIKEWISE MUST FALL.  SINCE THE TIME THAT
ALEXANDER HAMILTON WROTE CONCERNING THESE OATHS, THE BILL OF RIGHTS WAS
ADOPTED; AND THEN MUCH LATER CAME THE FOURTEENTH AMENDMENT.  AS A
RESULT OF THE LATTER A RATHER BROAD RANGE OF LIBERTIES WAS NEWLY
GUARANTEED TO THE CITIZEN AGAINST STATE ACTION.  INCLUDED WERE THOSE
CONTAINED IN THE FIRST AMENDMENT - THE RIGHT TO SPEAK FREELY, THE RIGHT
TO BELIEVE WHAT ONE CHOOSES, THE RIGHT OF CONSCIENCE.  STROMBERG V.
CALIFORNIA, 283 U.S. 359; MURDOCK V. PENNSYLVANIA, 319 U.S. 105; STAUB
V. CITY OF BAXLEY, 355 U.S. 313.  TODAY WHAT ONE THINKS OR BELIEVES,
WHAT ONE UTTERS AND SAYS HAVE THE FULL PROTECTION OF THE FIRST
AMENDMENT.  IT IS ONLY HIS ACTIONS THAT GOVERNMENT MAY EXAMINE AND
PENALIZE.  WHEN WE ALLOW GOVERNMENT TO PROBE HIS BELIEFS AND WITHHOLD
FROM HIM SOME OF THE PRIVILEGES OF CITIZENSHIP BECAUSE OF WHAT HE
THINKS, WE DO INDEED "INVERT THE ORDER OF THINGS," TO USE HAMILTON'S
PHRASE.  ALL PUBLIC OFFICIALS - STATE AND FEDERAL - MUST TAKE AN OATH
TO SUPPORT THE CONSTITUTION BY THE EXPRESS COMMAND OF ARTICLE VI OF THE
CONSTITUTION.  AND SEE GERENDE V. ELECTION BOARD, 341 U.S. 56.  BUT
OTHERWISE THE DOMAINS OF CONSCIENCE AND BELIEF HAVE BEEN SET ASIDE AND
PROTECTED FROM GOVERNMENT INTRUSION.  BOARD OF EDUCATION V. BARNETTE,
319 U.S. 624.  WHAT A MAN THINKS IS OF NO CONCERN TO GOVERNMENT.  "THE
FIRST AMENDMENT GIVES FREEDOM OF MIND THE SAME SECURITY AS FREEDOM OF
CONSCIENCE."  THOMAS V. COLLINS, 323 U.S. 516, 531.  ADVOCACY AND
BELIEF GO HAND IN HAND.  FOR THERE CAN BE NO TRUE FREEDOM OF MIND IF
THOUGHTS ARE SECURE ONLY WHEN THEY ARE PENT UP.    IN MURDOCK V.
PENNSYLVANIA, SUPRA, WE STATED, "PLAINLY A COMMUNITY MAY NOT SUPPRESS,
OR THE STATE TAX, THE DISSEMINATION OF VIEWS BECAUSE THEY ARE
UNPOPULAR, ANNOYING OR DISTASTEFUL."  319 U.S., AT 116.  IF THE
GOVERNMENT MAY NOT IMPOSE A TAX UPON THE EXPRESSION OF IDEAS IN ORDER
TO DISCOURAGE THEM, IT MAY NOT ACHIEVE THE SAME END BY REDUCING THE
INDIVIDUAL WHO EXPRESSES HIS VIEWS TO SECOND-CLASS CITIZENSHIP BY
WITHHOLDING TAX BENEFITS GRANTED OTHERS.  WHEN GOVERNMENT DENIES A TAX
EXEMPTION BECAUSE OF THE CITIZEN'S BELIEF, IT PENALIZES THAT BELIEF. 
THAT IS DIFFERENT ONLY IN FORM, NOT SUBSTANCE, FROM THE "TAXES ON
KNOWLEDGE" WHICH HAVE HAD A NOTORIOUS HISTORY IN THE ENGLISH-SPEAKING
WORLD.  SEE GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 246-247. 

WE DEAL HERE WITH A TYPE OF ADVOCACY WHICH, TO SAY THE LEAST, LIES
CLOSE TO THE "CONSTITUTIONAL DANGER ZONE."  YATES V. UNITED STATES, 354
U.S. 298, 319.  ADVOCACY WHICH IS IN NO WAY BRIGADED WITH ACTION SHOULD
ALWAYS BE PROTECTED BY THE FIRST AMENDMENT.  THAT PROTECTION SHOULD
EXTEND EVEN TO THE IDEAS WE DESPISE.  AS MR. JUSTICE HOLMES WROTE IN
DISSENT IN GITLOW V. NEW YORK, 268 U.S. 652, 673, "IF IN THE LONG RUN
THE BELIEFS EXPRESSED IN PROLETARIAN DICTATORSHIP ARE DESTINED TO BE
ACCEPTED BY THE DOMINANT FORCES OF THE COMMUNITY, THE ONLY MEANING OF
FREE SPEECH IS THAT THEY SHOULD BE GIVEN THEIR CHANCE AND HAVE THEIR
WAY."  IT IS TIME FOR GOVERNMENT - STATE OR FEDERAL - TO BECOME
CONCERNED WITH THE CITIZEN'S ADVOCACY WHEN HIS IDEAS AND BELIEFS MOVE
INTO THE REALM OF ACTION. 

THE CALIFORNIA OATH IS NOT RELATED TO UNLAWFUL ACTION.  TO GET THE
TAX EXEMPTION THE TAXPAYER MUST SWEAR HE "DOES NOT ADVOCATE THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF THE STATE OF
CALIFORNIA BY FORCE OR VIOLENCE OR OTHER UNLAWFUL MEANS NOR ADVOCATE
THE SUPPORT OF A FOREIGN GOVERNMENT AGAINST THE UNITED STATES IN EVENT
OF HOSTILITIES."  (FN3)  THE COURT CONSTRUES THE OPINION OF THE
CALIFORNIA SUPREME COURT AS APPLYING THE SAME TEST OF ILLEGAL ADVOCACY
AS WAS SUSTAINED AGAINST CONSTITUTIONAL CHALLENGE IN DENNIS V. UNITED
STATES, 341 U.S. 494.  THAT CASE HELD THAT ADVOCACY OF THE OVERTHROW OF
GOVERNMENT BY FORCE AND VIOLENCE WAS NOT ENOUGH, THAT INCITEMENT TO
ACTION, AS WELL AS CLEAR AND PRESENT DANGER, WERE ALSO ESSENTIAL
INGREDIENTS.  ID., AT 512, 509-510.  AS YATES V. UNITED STATES, SUPRA,
MAKES CLEAR, THERE IS STILL A CLEAR CONSTITUTIONAL LINE BETWEEN
ADVOCACY OF ABSTRACT DOCTRINE AND ADVOCACY OF ACTION.  THE CALIFORNIA
SUPREME COURT SAID, TO BE SURE, THAT THE OATH IN QUESTION "IS
CONCERNED" WITH THAT KIND OF ADVOCACY.  (FN4)  BUT IT NOWHERE SAYS THAT
OATH IS LIMITED TO THAT KIND OF ADVOCACY.  IT SEEMED TO THINK THAT
ADVOCACY WAS ITSELF ACTION FOR IT SAID, "WHAT ONE MAY MERELY BELIEVE IS
NOT PROHIBITED.  IT IS ONLY ADVOCATES OF THE SUBVERSIVE DOCTRINES WHO
ARE AFFECTED.  ADVOCACY CONSTITUTES ACTION AND THE INSTIGATION OF
ACTION, NOT MERE BELIEF OR OPINION."  (FN5) 

HOWEVER THE CALIFORNIA OPINION MAY BE READ, THESE JUDGMENTS SHOULD
FALL.  IF THE CONSTRUCTION OF THE OATH IS THE ONE I PREFER, THEN THE
SUPREME COURT OF CALIFORNIA HAS OBLITERATED THE LINE BETWEEN ADVOCACY
OF ABSTRACT DOCTRINE AND ADVOCACY OF ACTION.  IF THE CALIFORNIA OATH
HAS BEEN LIMITED BY JUDICIAL CONSTRUCTION TO THE TYPE OF ADVOCACY
CONDEMNED IN DENNIS, IT STILL SHOULD FALL.  MY DISAGREEMENT WITH THAT
DECISION HAS NOT ABATED.  NO CONSPIRACY TO OVERTHROW THE GOVERNMENT WAS
INVOLVED.  SPEECH AND SPEECH ALONE WAS THE OFFENSE.  I REPEAT THAT
THOUGHT AND SPEECH GO HAND IN HAND.  THERE IS NO REAL FREEDOM OF
THOUGHT IF IDEAS MUST BE SUPPRESSED.  THERE CAN BE NO FREEDOM OF THE
MIND UNLESS IDEAS CAN BE UTTERED. 

I KNOW OF NO POWER THAT ENABLES ANY GOVERNMENT UNDER OUR CONSTITUTION
TO BECOME THE MONITOR OF THOUGHT, AS THIS STATUTE WOULD HAVE IT
BECOME. 

FN1  THE OATH WAS PRESCRIBED BY THE COUNCIL IN CHARGE OF THE SOUTHERN
DISTRICT OF NEW YORK.  THE COUNCIL, AUTHORIZED BY THE ACT OF OCTOBER
23, 1779, WAS COMPOSED OF THE GOVERNOR, PRESIDENT OF THE SENATE,
CHANCELLOR, SUPREME COURT JUDGES, SENATORS, ASSEMBLYMEN, SECRETARY OF
STATE, ATTORNEY GENERAL, AND COUNTY COURT JUDGES.  THE COUNCIL WAS TO
ASSUME AUTHORITY "WHENEVER THE ENEMY SHALL ABANDON OR BE DISPOSSESSED
OF THE SAME, AND UNTIL THE LEGISLATURE CAN BE CONVENED," N.Y. LAWS 1777
1784, 192.  THE COUNCIL GOVERNED FROM NOVEMBER 25, 1783, TO FEBRUARY 5,
1784.  SEE BARCK, NEW YORK CITY 1776-1783 (1931), 220-221.  AMONG THE
POWERS OF THE COUNCIL WAS CONTROL OF ELECTIONS. 

THE ELECTION OATH PRESCRIBED BY THE COUNCIL READ AS FOLLOWS: 

"I ..... DO SOLEMNLY, WITHOUT ANY MENTAL RESERVATION OR EQUIVOCATION
WHATSOEVER, SWEAR AND DECLARE, AND CALL GOD TO WITNESS (OR IF OF THE
PEOPLE CALLED QUAKERS, AFFIRM) THAT I RENOUNCE AND ABJURE ALL
ALLEGIANCE TO THE KING OF GREAT-BRITIAN; AND THAT I WILL BEAR TRUE
FAITH AND ALLEGIANCE TO THE STATE OF NEW-YORK, AS A FREE AND
INDEPENDENT STATE, AND THAT I WILL IN ALL THINGS, TO THE BEST OF MY
KNOWLEDGE AND ABILITY, DO MY DUTY AS A GOOD AND FAITHFUL SUBJECT OF THE
SAID STATE OUGHT TO DO.  SO HELP ME GOD."  INDEPENDENT GAZETTE, DEC.
13, 1783. 

THE COUNCIL FURTHER PROVIDED: 

"THAT IF ANY PERSON PRESENTING HIMSELF TO GIVE HIS VOTE, SHALL BE
SUSPECTED OF, OR CHARGED WITH HAVING COMMITTED ANY OF THE OFFENCES
ABOVE SPECIFIED, IT SHALL BE LAWFUL FOR THE INSPECTORS, OR
SUPERINTENDENTS (AS THE CASE MAY BE) TO INQUIRE INTO AND DETERMINE THE
FACT WHEREOF SUCH PERSON SHALL BE SUSPECTED, OR WHEREWITH HE SHALL BE
CHARGED, AS THE CAUSE OF DISQUALIFICATION, ON THE OATH OF ONE OR MORE
WITNESSES, OR ON THE OATH OF THE PARTY SO SUSPECTED OR CHARGED, AT
THEIR DISCRETION; AND IF SUCH FACT SHALL, IN THE JUDGEMENT OF THE
INSPECTORS OR SUPERINTENDENTS, BE ESTABLISHED, IT SHALL BE LAWFUL FOR
THEM, AND THEY ARE HEREBY REQUIRED, TO REJECT THE VOTE OF SUCH PERSON
AT SUCH ELECTION."  INDEPENDENT GAZETTE, DEC. 13, 1783. 

FN2  OTHER LOYALTY OATHS APPEARED DURING THIS EARLY PERIOD. 
SUSPECTED PERSONS WERE REQUIRED TO TAKE A LOYALTY OATH.  N.Y. LAWS 1777
1784, 87.  THE SAME WAS REQUIRED OF LAWYERS.  ID., AT 155, 420.   AND
SEE FLICK, LOYALISM IN NEW YORK DURING THE AMERICAN REVOLUTION, 14
STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW (COLUMBIA UNIV.  1901) 9
(PASSIM). 

FN3  CALIF. REV. & TAX CODE, SEC. 32; AND SEE CALIF. CONST., ART. XX,
SEC. 19. 

FN4  48 CAL. 2D 419, 440, 311 P.2D 508, 520. 

FN5  48 CAL. 2D, AT 434, 311 P.2D, AT 517. 

MR. JUSTICE CLARK, DISSENTING. 

THE DECISION OF THE COURT TURNS ON A CONSTRUCTION OF CALIFORNIA LAW
WHICH REGARDS THE FILING OF THE CALIFORNIA TAX OATH AS INTRODUCTORY,
NOT CONCLUSIVE, IN NATURE.  HENCE, ONCE THE OATH IS FILED, IT MAY BE
"ACCEPTED OR REJECTED ON THE BASIS OF INCOMPETENT INFORMATION OR NO
INFORMATION AT ALL."  AND THE FILING IS "ONLY A STEP IN A PROCESS
THROUGHOUT WHICH THE TAXPAYER MUST BEAR THE BURDEN OF PROOF." 

NO CALIFORNIA CASE, LEAST OF ALL THE PRESENT ONE, COMPELS SUCH AN
UNDERSTANDING OF SEC. 32 OF THE CALIFORNIA REVENUE AND TAXATION CODE. 
NEITHER APPELLANT HERE FILED THE REQUIRED OATH, SO THE PROCEDURAL
SKELETON OF THIS CASE IS NOT ENLIGHTENING.  IF ANYTHING, THE OPINION OF
THE STATE COURT INDICATES THAT THE FILING, WHETHER THE OATH BE TRUE OR
FALSE, WOULD CONCLUSIVELY ESTABLISH THE TAXPAYER'S ELIGIBILITY FOR AN
EXEMPTION.  THUS, IN EXPLAINING THE EFFECT OF SEC. 32, THE CALIFORNIA
COURT STATED: 

"FOR THE OBVIOUS PURPOSE, AMONG OTHERS, OF AVOIDING LITIGATION, THE
LEGISLATURE, THROUGHOUT THE YEARS HAS SOUGHT TO RELIEVE THE ASSESSOR OF
THE BURDEN, ON HIS OWN INITIATIVE AND AT THE PUBLIC EXPENSE, OF
ASCERTAINING THE FACTS WITH REFERENCE TO TAX EXEMPTION CLAIMANTS.  IN
ADDITION TO THE MEANS HERETOFORE AND OTHERWISE PROVIDED BY LAW THE
LEGISLATURE, WITH SPECIAL REFERENCE TO THE IMPLEMENTATION OF SECTION 19
OF ARTICLE XX, HAS ENACTED SECTION 32.  THAT SECTION PROVIDES A DIRECT,
TIME SAVING AND RELATIVELY INEXPENSIVE METHOD OF ASCERTAINING THE
FACTS."  48 CAL. 2D 419, 432, 311 P. 508, 515-516. 

MOREOVER, THE RECOURSE OF THE STATE IN THE EVENT A FALSE OATH IS
FILED IS EXPRESSLY PROVIDED BY SEC. 32:  "ANY PERSON OR ORGANIZATION
WHO MAKES SUCH DECLARATION KNOWING IT TO BE FALSE IS GUILTY OF A
FELONY."  THE MAJORITY RELIES HEAVILY ON THE DUTY OF THE ASSESSOR TO
"INVESTIGATE THE FACTS UNDERLYING ALL TAX LIABILITIES," AS WELL AS HIS
SUBPOENA POWER INCIDENT THERETO UNDER SEC. 454 OF THE CALIFORNIA TAX
CODE.  BUT THE CALIFORNIA COURT ADVERTS TO THOSE MATTERS ONLY UNDER A
HYPOTHETICAL STATE OF FACTS, NAMELY, IN THE ABSENCE OF THE AID PROVIDED
BY SEC. 32.  48 CAL. 2D, AT 430-432, 311 P.2D, AT 515.  THE ESSENTIAL
POINT IS THAT, WHATEVER THE ASSESSOR'S DUTY, SEC. 32 PROVIDES FOR ITS
DISCHARGE ON THE BASIS OF THE DECLARATIONS ALONE. 

ON THE OTHER HAND, IF IT BE THOUGHT THAT THE SUPREME COURT OF
CALIFORNIA IS AMBIGUOUS ON THIS MATTER, THEN IT IS WELL ESTABLISHED
THAT OUR DUTY IS TO SO CONSTRUE THE STATE OATH AS TO AVOID CONFLICT
WITH CONSTITUTIONAL GUARANTEES OF DUE PROCESS.  GARNER V. BOARD OF
PUBLIC WORKS, 341 U.S. 716, 723-724 (1951); GERENDE V. BOARD OF
SUPERVISORS OF ELECTIONS, 341 U.S. 56 (1951).  TWO YEARS AGO WE
CONSTRUED FILING OF THE NON-COMMUNIST AFFIDAVIT REQUIRED BY SEC. 9(H)
OF THE NATIONAL LABOR RELATIONS ACT AS BEING CONCLUSIVE IN CHARACTER,
HOLDING THAT THE CRIMINAL SANCTION PROVIDED IN THAT SECTION WAS THE
EXCLUSIVE REMEDY FOR THE FILING OF A FALSE AFFIDAVIT.  LEEDOM V.
INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, 352 U.S. 145
(1956).  THAT ACT BARS ISSUANCE OF A COMPLAINT OR CONDUCTING AN
INVESTIGATION UPON THE APPLICATION OF A UNION UNLESS THE PRESCRIBED NON
COMMUNIST AFFIDAVIT IS FILED BY EACH OFFICER OF THE UNION.  ARTICLE XX,
SEC. 19, OF THE CALIFORNIA CONSTITUTION EXPRESSLY PROHIBITS A TAX
EXEMPTION TO ANY PERSON OR ORGANIZATION THAT ADVOCATES VIOLENT
OVERTHROW OF EITHER THE CALIFORNIA OR THE UNITED STATES GOVERNMENTS, OR
ADVOCATES THE SUPPORT OF A FOREIGN GOVERNMENT AGAINST THE UNITED STATES
IN THE EVENT OF HOSTILITIES, AND PROVIDES FOR LEGISLATIVE
IMPLEMENTATION THEREOF.  BY SEC. 32 THE CALIFORNIA LEGISLATURE HAS
REQUIRED ONLY THE FILING OF THE AFFIDAVIT.  THE TERMS OF SEC. 9(H) OF
THE NATIONAL LABOR RELATIONS ACT AND SEC. 32 OF THE CALIFORNIA TAX
CODE, THEREFORE, ESTABLISH IDENTICAL PROCEDURES.  THAT IDENTITY POINTS
UP THE INAPPROPRIATENESS OF THE COURT'S CONSTRUCTION OF SEC. 32. 

EVEN IF THE COURT'S INTERPRETATION OF CALIFORNIA LAW IS CORRECT, I
CANNOT AGREE THAT DUE PROCESS REQUIRES CALIFORNIA TO BEAR THE BURDEN OF
PROOF UNDER THE CIRCUMSTANCES OF THIS CASE.  THIS IS NOT A CRIMINAL
PROCEEDING.  NEITHER FINE NOR IMPRISONMENT IS INVOLVED.  SO FAR AS ART.
XX, SEC. 19, OF THE CALIFORNIA CONSTITUTION AND SEC. 32 OF THE
CALIFORNIA TAX CODE ARE CONCERNED, APPELLANTS ARE FREE TO SPEAK AS THEY
WISH, TO ADVOCATE WHAT THEY WILL.  IF THEY ADVOCATE THE VIOLENT AND
FORCEFUL OVERTHROW OF THE CALIFORNIA GOVERNMENT, CALIFORNIA WILL TAKE
NO ACTION AGAINST THEM UNDER THE TAX PROVISIONS HERE IN QUESTION.  BUT
IT WILL REFUSE TO TAKE ANY ACTION FOR THEM, IN THE SENSE OF EXTENDING
TO THEM THE LEGISLATIVE LARGESSE THAT IS INHERENT IN THE GRANTING OF
ANY TAX EXEMPTION OR DEDUCTION.  IN THE VIEW OF THE CALIFORNIA COURT,
"AN EXEMPTION FROM TAXATION IS THE EXCEPTION AND THE UNUSUAL  ...  . IT
IS A BOUNTY OR GRATUITY ON THE PART OF THE SOVEREIGN AND WHEN ONCE
GRANTED MAY BE WITHDRAWN."  48 CAL. 2D, AT 426, 311 P.2D, AT 512.  THE
POWER OF THE SOVEREIGN TO ATTACH CONDITIONS TO ITS BOUNTY IS FIRMLY
ESTABLISHED UNDER THE DUE PROCESS CLAUSE.  CF. IVANHOE IRRIGATION
DISTRICT V. MCCRACKEN, 357 U.S. 275, 295 (1958).  TRADITIONALLY, THE
BURDEN OF QUALIFYING RESTS UPON THE ONE SEEKING THE GRACE OF THE
STATE.  THE MAJORITY SUGGESTS THAT TRADITIONAL PROCEDURES ARE
INADEQUATE WHEN "A PERSON IS TO SUFFER A PENALTY FOR A CRIME."  BUT
CALIFORNIA'S ACTION HERE, DECLINING TO EXTEND THE GRACE OF THE STATE TO
APPELLANTS, CAN IN NO PROPER SENSE BE REGARDED AS A "PENALTY."  THE
CASE CITED BY THE MAJORITY, LIPKE V. LEDERER, 259 U.S. 557 (1922),
INVOLVES AN ALTOGETHER DIFFERENT MATTER, IMPOSITION OF A SPECIAL TAX
UPON ONE WHO ENGAGED IN CERTAIN ILLEGAL CONDUCT, BY A STATUTE THAT
DESCRIBED THE LEVY AS A "TAX OR PENALTY."  259 U.S., AT 561. 

THE MAJORITY, HOWEVER, WOULD REQUIRE THAT CALIFORNIA BEAR THE BURDEN
OF PROOF UNDER THE CIRCUMSTANCES OF THIS CASE BECAUSE "THE TRANSCENDENT
VALUE OF SPEECH IS INVOLVED."  THIS IS A WHOLLY NOVEL DOCTRINE,
UNSUPPORTED BY ANY PRECEDENT, AND SO FAR AS I CAN SEE, INAPPOSITE TO
SEVERAL OTHER DECISIONS OF THIS COURT UPHOLDING THE APPLICATION OF
SIMILAR OATHS TO MUNICIPAL EMPLOYEES, GARNER V. BOARD OF PUBLIC WORKS,
341 U.S. 716 (1951); PUBLIC SCHOOL TEACHERS, ADLER V. BOARD OF
EDUCATION, 342 U.S. 483 (1952); CANDIDATES FOR PUBLIC OFFICE, GERENDE
V. BOARD OF SUPERVISORS, 341 U.S. 56 (1951); AND LABOR UNION OFFICIALS,
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382 (1950).  SEE ALSO
DAVIS V. BEASON, 133 U.S. 333 (1890), AS TO VOTERS IN TERRITORIAL
ELECTIONS.  ALL OF THOSE DECISIONS, BY VIRTUE OF THE OATH INVOLVED, PUT
THE BURDEN ON THE INDIVIDUAL TO COME FORWARD AND DISAVOW ACTIVITY
INVOLVING "THE TRANSCENDENT VALUE OF SPEECH."  THE MAJORITY ATTEMPTS TO
DISTINGUISH THEM ON THE BASIS OF THEIR INVOLVING A GREATER STATE
INTEREST IN JUSTIFICATION OF RESTRICTING SPEECH, AND ALSO ON THE GROUND
THAT THE OATHS THERE INVOLVED WERE CONCLUSIVE IN NATURE.  THE FIRST
DISTINCTION, HOWEVER, SEEMS PERTINENT ONLY TO THE VALIDITY OF AN OATH
REQUIREMENT IN THE FIRST PLACE, NOT TO BURDEN OF PROOF UNDER SUCH A
REQUIREMENT.  THE SECOND DISTINCTION, WHICH ARGUENDO I ACCEPT AS TRUE
AT THIS POINT, SEEMS EXCEEDINGLY FLIMSY, SINCE EVEN AN OATH THAT IS
CONCLUSIVE IN NATURE FORCES THE APPLICANT TO THE BURDEN OF COMING
FORWARD AND MAKING THE REQUISITE DECLARATION.  SO FAR AS IMPACT ON
FREEDOM OF SPEECH IS CONCERNED, THE FURTHER BURDEN OF PROVING THE
DECLARATIONS TRUE APPEARS CLOSE TO BEING DE MINIMIS.    THE MAJORITY
ASSUMES, WITHOUT DECIDING, THAT CALIFORNIA MAY DENY A TAX EXEMPTION TO
THOSE IN THE PROSCRIBED CLASS.  I THINK IT PERFECTLY CLEAR THAT THE
STATE MAY DO SO, SINCE ONLY THAT SPEECH IS AFFECTED WHICH IS CRIMINALLY
PUNISHABLE UNDER THE FEDERAL SMITH ACT, 18 U.S.C. SEC. 2385, OR THE
CALIFORNIA CRIMINAL SYNDICALISM ACT, CAL. STAT., 1919, C. 188.  AND
CALIFORNIA HAS AGREED THAT ITS INTERPRETATION OF CRIMINAL SPEECH UNDER
THOSE ACTS SHALL BE IN CONFORMITY WITH THE DECISIONS OF THIS COURT,
E.G., YATES V. UNITED STATES, 354 U.S. 298 (1957); DENNIS V. UNITED
STATES, 341 U.S. 494 (1951); WHITNEY V. CALIFORNIA, 274 U.S. 357
(1927).  THE INTEREST OF THE STATE THAT JUSTIFIES RESTRICTION OF SPEECH
BY IMPOSITION OF CRIMINAL SANCTIONS SURELY JUSTIFIES THE FAR LESS
SEVERE MEASURE OF DENYING A TAX EXEMPTION, PROVIDED THE LESSER SANCTION
BEARS REASONABLE RELATION TO THE EVIL AT WHICH THE STATE AIMS.  CF.
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, SUPRA.  THE GENERAL AIM OF THE
CONSTITUTIONAL AND LEGISLATIVE PROVISIONS IN QUESTION IS TO RESTRICT
ADVOCACY OF VIOLENT OR FORCEFUL OVERTHROW OF STATE OR NATIONAL
GOVERNMENT; THE PARTICULAR AIM IS TO AVOID STATE SUBSIDIZATION OF SUCH
ADVOCACY BY REFUSING THE STATE'S BOUNTY TO THOSE WHO ARE SO ENGAGED. 
THE LATTER HAS BEEN DENOMINATED THE "PRIMARY PURPOSE" BY THE CALIFORNIA
SUPREME COURT.  48 CAL. 2D, AT 428, 311 P.2D, AT 513.  IN VIEW OF THAT,
REASONABLE RELATION IS EVIDENT ON THE FACE OF THE MATTER. 

REFUSAL OF THE TAXING SOVEREIGN'S GRACE IN ORDER TO AVOID SUBSIDIZING
OR ENCOURAGING ACTIVITY CONTRARY TO THE SOVEREIGN'S POLICY IS AN
ACCEPTED PRACTICE.  WE HAVE HERE A PARALLEL SITUATION TO FEDERAL
REFUSAL TO REGARD AS "NECESSARY AND ORDINARY," AND HENCE DEDUCTIBLE
UNDER THE FEDERAL INCOME TAX, THOSE EXPENSES DEDUCTION OF WHICH WOULD
FRUSTRATE SHARPLY DEFINED STATE POLICIES.  SEE TANK TRUCK RENTALS,
INC., V. COMMISSIONER, 356 U.S. 30 (1958). 

IF THE STATE'S REQUIREMENT OF AN OATH IN IMPLEMENTING DENIAL OF THIS
EXEMPTION BE THOUGHT TO MAKE AN INROAD UPON SPEECH OVER AND ABOVE THAT
CAUSED BY DENIAL OF THE EXEMPTION, OR EVEN BY CRIMINAL PUNISHMENT OF
THE PROSCRIBED SPEECH, I FIND CALIFORNIA'S INTEREST STILL SUFFICIENT TO
JUSTIFY THE STATE'S ACTION.  THE RESTRICTION MUST BE CONSIDERED IN THE
CONTEXT IN WHICH THE OATH IS SET - APPEAL TO THE LARGESSE OF THE
STATE.  THE INTEREST OF THE STATE, AS BEFORE POINTED OUT, IS DUAL IN
NATURE, BUT ITS PRIMARY THRUST IS SUMMED UP IN AN UNDERSTANDABLE DESIRE
TO INSURE THAT THOSE WHO BENEFIT BY TAX EXEMPTION DO NOT BITE THE HAND
THAT GIVES IT. 

APPELLANTS RAISE OTHER ISSUES - PRE-EMPTION OF SECURITY LEGISLATION
UNDER PENNSYLVANIA V. NELSON, 350 U.S. 497 (1956), AND DENIAL OF EQUAL
PROTECTION BECAUSE THE OATH IS NOT REQUIRED FOR ALL TYPES OF TAX
EXEMPTIONS - WHICH THE MAJORITY DOES NOT PASS UPON.  I TREAT OF THEM
ONLY SO FAR AS TO SAY THAT I THINK NEITHER HAS MERIT, SUBSTANTIALLY FOR
THE REASONS STATED IN THE OPINION OF THE SUPREME COURT OF CALIFORNIA. 

IF MY INTERPRETATION OF SEC. 32 IS CORRECT, I ASSUME THAT CALIFORNIA
WILL AFFORD APPELLANTS ANOTHER OPPORTUNITY TO TAKE THE OATH, THIS TIME
KNOWING THAT ITS FILING WILL HAVE CONCLUSIVE EFFECT.   FOR THE REASONS
STATED ABOVE, I WOULD AFFIRM THE JUDGMENT. 
..END :
























FIRST UNITARIAN CHURCH OF LOS ANGELES V. COUNTY OF LOS ANGELES 357 U.S.
545 


NO. 382.  ARGUED APRIL 8, 1958 - DECIDED JUNE 30, 1958* - 48 CAL. 2D
419, 899, 311 P.2D 508, 540, REVERSED AND CAUSES REMANDED. 

*TOGETHER WITH NO. 385, VALLEY UNITARIAN-UNIVERSALIST CHURCH, INC.,
V. COUNTY OF LOS ANGELES ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


SOLELY BECAUSE THEY REFUSED TO SUBSCRIBE OATHS THAT THEY DO NOT
ADVOCATE THE OVERTHROW OF THE FEDERAL GOVERNMENT BY FORCE, VIOLENCE OR
OTHER UNLAWFUL MEANS, OR ADVOCATE THE SUPPORT OF A FOREIGN GOVERNMENT
AGAINST THE UNITED STATES IN THE EVENT OF HOSTILITIES, PETITIONERS WERE
DENIED TAX EXEMPTIONS PROVIDED BY THE CALIFORNIA CONSTITUTION FOR REAL
PROPERTY AND BUILDINGS USED SOLELY AND EXCLUSIVELY FOR RELIGIOUS
WORSHIP.  HELD:  ENFORCEMENT OF THE UNDERLYING PROHIBITION THROUGH
PROCEDURES WHICH PLACE THE BURDENS OF PROOF AND PERSUASION ON THE
TAXPAYER VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
SPEISER V. RANDALL, ANTE, P. 513.  PP. 546-547. 

FIRST UNITARIAN CHURCH OF LOS ANGELES V. COUNTY OF LOS ANGELES ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO SPEISER V. RANDALL AND PRINCE V. CITY
AND COUNTY OF SAN FRANCISCO, ANTE, P. 513.  THE PETITIONERS CLAIMED THE
PROPERTY-TAX EXEMPTION PROVIDED BY ART. XIII, SEC. 1 1/2, OF THE
CALIFORNIA CONSTITUTION FOR REAL PROPERTY AND BUILDINGS USED SOLELY AND
EXCLUSIVELY FOR RELIGIOUS WORSHIP.  THE LOS ANGELES ASSESSOR DENIED THE
EXEMPTIONS BECAUSE EACH PETITIONER REFUSED TO SUBSCRIBE, AND STRUCK
FROM THE PRESCRIBED APPLICATION FORM, THE OATH THAT THEY DID NOT
ADVOCATE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES AND OF
THE STATE OF CALIFORNIA BY FORCE OR VIOLENCE OR OTHER UNLAWFUL MEANS
NOR ADVOCATE THE SUPPORT OF A FOREIGN GOVERNMENT AGAINST THE UNITED
STATES IN THE EVENT OF HOSTILITIES.  EACH PETITIONER SUED IN THE
SUPERIOR COURT IN AND FOR THE COUNTY OF LOS ANGELES TO RECOVER TAXES
PAID UNDER PROTEST AND FOR DECLARATORY RELIEF.  BOTH CONTENDED THAT THE
EXACTION OF THE OATH PURSUANT TO SEC. 19 OF ART. XX OF THE STATE
CONSTITUTION AND SEC. 32 OF THE CALIFORNIA REVENUE AND TAXATION CODE
WAS FORBIDDEN BY THE FEDERAL CONSTITUTION.  THE COURT UPHELD THE
VALIDITY OF THE PROVISIONS IN THE ACTION BROUGHT BY PETITIONER FIRST
UNITARIAN CHURCH OF LOS ANGELES, AND THE SUPREME COURT OF CALIFORNIA
AFFIRMED.  48 CAL. 2D 419, 311 P.2D 508.  WE GRANTED CERTIORARI.  355
U.S. 853.  THE SUPERIOR COURT IN THE ACTION BROUGHT BY PETITIONER
VALLEY UNITARIAN-UNIVERSALIST CHURCH, INC., UPHELD THE VALIDITY OF THE
PROVISIONS UNDER THE FEDERAL CONSTITUTION BUT HELD THAT SEC. 32 OF THE
REVENUE AND TAXATION CODE VIOLATED THE CALIFORNIA CONSTITUTION BECAUSE
IT EXCLUDED OR EXEMPTED HOUSEHOLDERS FROM THE REQUIREMENT.  THE SUPREME
COURT OF CALIFORNIA REVERSED, 48 CAL. 2D 899, 311 P.2D 540, AND WE
GRANTED CERTIORARI, 355 U.S. 854. 

IN ADDITION TO THE CONTENTIONS ADVANCED BY THE APPELLANTS IN SPEISER
V. RANDALL, THE PETITIONERS ARGUE THAT THE PROVISIONS ARE INVALID UNDER
THE FOURTEENTH AMENDMENT AS ABRIDGMENTS OF RELIGIOUS FREEDOM AND AS
VIOLATIONS OF THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE.  OUR
DISPOSITION OF THE CASES, HOWEVER, MAKES CONSIDERATION OF THESE
QUESTIONS UNNECESSARY.  FOR THE REASONS EXPRESSED IN SPEISER V.
RANDALL, WE HOLD THAT THE ENFORCEMENT OF SEC. 19 OF ART. XX OF THE
STATE CONSTITUTION THROUGH PROCEDURES WHICH PLACE THE BURDENS OF PROOF
AND PERSUASION ON THE TAXPAYER IS A VIOLATION OF DUE PROCESS. 

THE JUDGMENTS ARE REVERSED AND THE CAUSES REMANDED FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR CONCURRING OPINION OF MR. JUSTICE BLACK, JOINED BY MR. JUSTICE
DOUGLAS, SEE ANTE, P. 529. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AGREES, CONCURRING. 

WHAT I HAVE SAID IN SPEISER V. RANDALL AND PRINCE V. SAN FRANCISCO,
DECIDED THIS DAY, ANTE, P. 532, IS SUFFICIENT FOR THESE CASES AS WELL. 
BUT THERE IS A RELATED GROUND ON WHICH THE DECISION IN THESE UNITARIAN
CASES SHOULD REST.  WE KNOW FROM THE RECORD ONE PRINCIPLE OF THAT
CHURCH: 

"THE PRINCIPLES, MORAL AND RELIGIOUS, OF THE FIRST UNITARIAN CHURCH
OF LOS ANGELES COMPEL IT, ITS MEMBERS, OFFICERS AND MINISTER, AS A
MATTER OF DEEPEST CONSCIENCE, BELIEF AND CONVICTION, TO DENY POWER IN
THE STATE TO COMPEL ACCEPTANCE BY IT OR ANY OTHER CHURCH OF THIS OR ANY
OTHER OATH OF COERCED AFFIRMATION AS TO CHURCH DOCTRINE, ADVOCACY OR
BELIEFS." 

WE STATED IN GIROUARD V. UNITED STATES, 328 U.S. 61, 69, "THE TEST
OATH IS ABHORRENT TO OUR TRADITION."  SEE AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382, 445 (DISSENTING OPINION).  THE REASON FOR THAT
ABHORRENCE IS THE SUPREMACY OF CONSCIENCE IN OUR CONSTITUTIONAL
SCHEME.  AS WE STATED IN BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624,
642, "IF THERE IS ANY FIXED STAR IN OUR CONSTITUTIONAL CONSTELLATION,
IT IS THAT NO OFFICIAL, HIGH OR PETTY, CAN PRESCRIBE WHAT SHALL BE
ORTHODOX IN POLITICS, NATIONALISM, RELIGION, OR OTHER MATTERS OF
OPINION OR FORCE CITIZENS TO CONFESS BY WORD OR ACT THEIR FAITH
THEREIN." 

THERE IS NO POWER IN OUR GOVERNMENT TO MAKE ONE BEND HIS RELIGIOUS
SCRUPLES TO THE REQUIREMENTS OF THIS TAX LAW. 

MR. JUSTICE CLARK, DISSENTING. 

FOR THE REASONS STATED IN MY DISSENTING OPINION IN NO. 483, SPEISER
V. RANDALL, AND NO. 484, PRINCE V. SAN FRANCISCO, ANTE, P. 538, I
CANNOT AGREE EITHER THAT CALIFORNIA LAW IMPOSES THE BURDEN WHICH THE
COURT CONSIDERS HERE, OR THAT SUCH A BURDEN IN ANY EVENT WOULD CAUSE
THE PROCEDURE ESTABLISHED BY SEC. 32 OF THE CALIFORNIA REVENUE AND
TAXATION CODE TO VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  AGAIN FOR REASONS STATED IN MY DISSENTING OPINION IN
SPEISER AND PRINCE, SUPRA, I FIND NO VIOLATION OF THE CONSTITUTIONAL
RIGHT TO FREEDOM OF SPEECH. 

THE MAJORITY NOTES THE FURTHER CONTENTION HERE THAT FREEDOM OF
RELIGION IS ABRIDGED, BUT HAS NO OCCASION TO CONSIDER IT.  THE
CALIFORNIA COURT FOUND THAT NO TENET OF PETITIONERS' RESPECTIVE
RELIGIONS EMBRACES THE ACTIVITY WHICH IS THE SUBJECT OF THE STATE
PROVISIONS.  NOR DOES IT APPEAR THAT SUCH ACTIVITY CAN BE CHARACTERIZED
AS RELIGIOUS IN NATURE.  CF. DAVIS V. BEASON, 133 U.S. 333 (1890);
REYNOLDS V. UNITED STATES, 98 U.S. 145 (1879).  I WOULD AFFIRM. 
..END :

















CARITATIVO V. CALIFORNIA 357 U.S. 549 


NO. 561.  ARGUED MAY 21, 1958 - DECIDED JUNE 30, 1958* - AFFIRMED. 

*TOGETHER WITH NO. 562, RUPP V. DICKSON, ACTING WARDEN, ALSO ON
CERTIORARI TO THE SAME COURT. 


CALIFORNIA LAW FORBIDS THE EXECUTION OF AN INSANE PERSON BUT LEAVES TO
THE SOLE JUDGMENT OF THE PRISON WARDEN THE INITIATION OF PROCEEDINGS TO
DETERMINE THE SANITY OF A CONDEMNED CRIMINAL IN HIS CUSTODY.  IF THE
WARDEN "HAS GOOD REASON TO BELIEVE" THAT A CONDEMNED PRISONER HAS
BECOME INSANE, HE MUST SO ADVISE THE DISTRICT ATTORNEY, WHO MUST
INSTITUTE COURT PROCEEDINGS LEADING TO A DETERMINATION OF THE
PRISONER'S SANITY BY A JURY.  BUT, IF THE WARDEN DOES NOT TAKE THE
FIRST STEP, NO JUDGE, COURT, OR OFFICER, OTHER THAN THE GOVERNOR, CAN
SUSPEND THE EXECUTION OF A DEATH SENTENCE.   PETITIONERS HAD BEEN
CONVICTED OF MURDER AND SENTENCED TO DEATH, AND THEIR CONVICTIONS HAD
BEEN AFFIRMED BY THE STATE SUPREME COURT.  SUBSEQUENTLY, THE WARDEN OF
THE PRISON WHERE THEY WERE CONFINED DETERMINED THAT THERE WAS NO REASON
TO BELIEVE THEM INSANE AND REFUSED TO INSTITUTE PROCEEDINGS TO
DETERMINE THEIR SANITY.  THE STATE SUPREME COURT DENIED WRITS OF HABEAS
CORPUS TO REVIEW THE WARDEN'S DETERMINATIONS.  HELD:  THE JUDGMENTS ARE
AFFIRMED ON THE AUTHORITY OF SOLESBEE V. BALKCOM, 339 U.S. 9. 

CARITATIVO V. CALIFORNIA ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE JUDGMENTS ARE AFFIRMED.  SOLESBEE V. BALKCOM, 339 U.S. 9, 12. 

MR. JUSTICE HARLAN, CONCURRING. 

BEING UNCERTAIN AS TO THE FULL IMPLICATIONS OF SOLESBEE V. BALKCOM,
339 U.S. 9, I PREFER NOT TO RELY ON THAT DECISION IN DISPOSING OF THESE
CASES. 

I PROCEED ON THE PREMISE THAT THE FOURTEENTH AMENDMENT PROHIBITS A
STATE FROM EXECUTING A PRISONER WHO HAS BECOME INSANE AFTER HIS
CONVICTION.  EVEN SO, I DO NOT BELIEVE THAT THE PROCEDURE ESTABLISHED
BY CALIFORNIA TO DEAL WITH SUCH CASES, IN EVIDENT RECOGNITION OF THE
GRAVE INTEREST AT STAKE, CAN UPON THE RECORDS BEFORE US BE SAID TO
OFFEND DUE PROCESS. 

THE CALIFORNIA STATUTE IN SUBSTANCE IMPOSES ON THE WARDEN A MANDATORY
DUTY TO MAKE A CONTINUING CHECK ON THE MENTAL CONDITION OF CONDEMNED
PRISONERS AND TO NOTIFY THE DISTRICT ATTORNEY WHENEVER HE FINDS GROUNDS
FOR BELIEF THAT A PRISONER HAS BECOME INSANE.  UPON BEING SO ADVISED,
IT IS THE UNQUALIFIED DUTY OF THE DISTRICT ATTORNEY TO SUBMIT THE ISSUE
OF THE PRISONER'S SANITY TO A JURY IN JUDICIAL PROCEEDINGS IN WHICH THE
PRISONER IS ENTITLED TO BE HEARD.  THE PRISONER IS GIVEN NO RIGHT TO
COMMENCE SUCH PROCEEDINGS HIMSELF, OR TO BE HEARD IN CONNECTION WITH
THE WARDEN'S INITIATING DETERMINATION.  AFFIDAVITS SUBMITTED BY THE
WARDEN DISCLOSE THAT HIS STATUTORY DUTY IS CARRIED OUT UNDER A REGULAR
PROCEDURE PURSUANT TO WHICH THE PRISON PSYCHIATRIC STAFF SUBMITS
REPORTS TO THE WARDEN AS TO ALL CONDEMNED PRISONERS SOON AFTER THEIR
ARRIVAL AT THE PRISON, AND ALSO SUBMITS A SPECIAL PSYCHIATRIC REPORT
WITHIN 20 DAYS OF A SCHEDULED EXECUTION. 

THIS PROCEDURE, IN MY OPINION, SATISFIES THE TEST OF FUNDAMENTAL
FAIRNESS WHICH UNDERLIES DUE PROCESS.  AT THE POST-CONVICTION STAGE OF
A CAPITAL CASE, IT SEEMS TO ME ENTIRELY PROPER FOR THE STATE TO
CONDITION A PRISONER'S RIGHT TO A SANITY TRIAL UPON A PRELIMINARY
DETERMINATION BY A RESPONSIBLE OFFICIAL THAT "GOOD REASON" EXISTS FOR
THE BELIEF THAT THE PRISONER HAS BECOME INSANE.  SURELY IT IS NOT
INAPPROPRIATE FOR CALIFORNIA TO LODGE THIS GRAVE RESPONSIBILITY IN THE
HANDS OF THE WARDEN, THE OFFICIAL WHO BEYOND ALL OTHERS HAS HAD THE
MOST INTIMATE RELATIONS WITH, AND BEST OPPORTUNITY TO OBSERVE, THE
PRISONER.  AND HAVING REGARD TO THE NATURAL AND IMPELLING IMPULSE OF
LAWYERS REPRESENTING CONDEMNED MEN TO STAVE OFF THEIR EXECUTION AS LONG
AS POSSIBLE, I ALSO THINK IT CONSTITUTIONALLY PERMISSIBLE FOR THE STATE
TO CONCLUDE THAT SUCH A PRELIMINARY DETERMINATION SHOULD BE MADE EX
PARTE.  IT IS A LEGITIMATE CONSIDERATION FOR CALIFORNIA TO TAKE INTO
ACCOUNT THAT AN ADVERSARY PROCEEDING ON THE ISSUE OF PROBABLE CAUSE
MIGHT OPEN THE DOOR TO INTERMINABLE DELAYING MANEUVERS IN CAPITAL
CASES, CONTRARY TO THE SOUND ADMINISTRATION OF JUSTICE.  FOR EXAMPLE,
UNLESS THIS COURT WERE PREPARED TO ACCEPT AS CONCLUSIVE THE WARDEN'S
REPRESENTATION THAT HE HAD RECKONED WITH THE CONDEMNED PRISONER'S
SUBMISSIONS, WHENEVER SUCH A REPRESENTATION IS CHALLENGED, IT WOULD
INEVITABLY INVITE JUDICIAL PROCEEDINGS TO DETERMINE WHETHER THE WARDEN
HAD IN FACT ACTED PROPERLY ON EVERY OCCASION THAT A CONDEMNED MAN
CLAIMED THAT HE HAD BECOME INSANE. 

GRANTING THAT UNDER THE FOURTEENTH AMENDMENT THE WARDEN MAY NOT
REFRAIN FROM MAKING A RESPONSIBLE AND GOOD-FAITH DETERMINATION, NO
CONSIDERATIONS OF THIS KIND ARE SUGGESTED BY EITHER OF THE RECORDS
BEFORE US.  THE WARDEN'S AFFIDAVITS SHOW THAT THE USUAL PROCEDURES WERE
FOLLOWED HERE; THAT THE PRISON PSYCHIATRISTS UNANIMOUSLY CONCLUDED THAT
EACH OF THE PETITIONERS WAS SANE; THAT THE WARDEN PERSONALLY OBSERVED
THEIR CONDUCT; AND THAT "NEITHER FROM THE PSYCHIATRIC REPORTS, HIS OWN
OBSERVATION, NOR THE REPORTS OF HIS CUSTODIAL STAFF HAS HE ANY REASON
TO BELIEVE PETITIONERS PRESENTLY INSANE."  IN ADDITION, THE WARDEN
AFFIRMS HIS INTENTION TO INSTITUTE THE REQUIRED PROCEEDINGS TO
DETERMINE PETITIONERS' SANITY IF AND WHEN HE HAS "GOOD REASON" TO
BELIEVE EITHER OF THEM INSANE.  PETITIONERS DO NOT CONTROVERT THE
SUBSTANCE OF THESE AFFIRMATIONS, BUT SIMPLY CLAIM THAT THEY WERE DENIED
DUE PROCESS BECAUSE THE WARDEN ACTED WITHOUT ACCORDING THEM AN
OPPORTUNITY TO BE HEARD OR TO SUBMIT FURTHER DATA. 

IN THE ABSENCE OF ANY CHALLENGE TO THE WARDEN'S AFFIRMATIONS THAT HE
FOLLOWED THE CUSTOMARY CALIFORNIA PROCEDURE, THAT IS, THAT HE
DETERMINED PETITIONERS' SANITY ON THE BASIS OF RESPONSIBLE MEDICAL
ADVICE AND ON HIS OWN PERSONAL OBSERVATIONS, AND IN THE ABSENCE OF ANY
ALLEGATION THAT HE ACTED IN BAD FAITH, I CANNOT SAY THAT THE
PETITIONERS WERE DENIED DUE PROCESS SOLELY BECAUSE THE WARDEN DECLINED,
IN THE EXERCISE OF HIS DISCRETION, TO CONSIDER ALSO THE PROFESSIONS
SOUGHT TO BE MADE ON THEIR BEHALF. 

FOR THESE REASONS I CONCUR IN THE COURT'S AFFIRMANCE OF THE TWO
JUDGMENTS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BRENNAN JOIN, DISSENTING. 

BY ITS SUMMARY DISPOSITION OF THESE CASES, THE COURT EXTENDS THE
DISTURBING DECISION IN SOLESBEE V. BALKCOM, 339 U.S. 9, WHERE IT WAS
FOUND THAT A STATE DID NOT OFFEND DUE PROCESS BY LEAVING TO THE PRIVATE
JUDGMENT OF ITS GOVERNOR, IN WHICH THE VICTIM HAD NO PART, THE
DETERMINATION OF THE SANITY OF A MAN CONDEMNED TO DEATH.  NOW IT
APPEARS THAT THIS DETERMINATION, UPON WHICH DEPENDS THE FEARFUL
QUESTION OF LIFE OR DEATH, MAY ALSO BE MADE ON THE MERE SAY-SO OF THE
WARDEN OF A STATE PRISON, ACCORDING TO SUCH PROCEDURE AS HE CHOOSES TO
PURSUE, AND MORE PARTICULARLY WITHOUT ANY RIGHT ON THE PART OF A MAN
AWAITING DEATH WHO CLAIMS THAT INSANITY HAS SUPERVENED TO HAVE HIS CASE
PUT TO THE WARDEN.  THERE CAN HARDLY BE A COMPARABLE SITUATION UNDER
OUR CONSTITUTIONAL SCHEME OF THINGS IN WHICH AN INTEREST SO GREAT, THAT
AN INSANE MAN NOT BE EXECUTED, IS GIVEN SUCH FLIMSY PROCEDURAL
PROTECTION, AND WHERE ONE ASSERTING A CLAIM IS DENIED THE RUDIMENTARY
RIGHT OF HAVING HIS SIDE SUBMITTED TO THE ONE WHO SITS IN JUDGMENT. 

PETITIONERS IN BOTH THESE CASES HAVE BEEN CONVICTED OF MURDER IN THE
FIRST DEGREE AND SENTENCED TO DEATH.  THEIR CONVICTIONS WERE AFFIRMED
BY THE SUPREME COURT OF CALIFORNIA.  PEOPLE V. CARITATIVO, 46 CAL. 2D
68, 292 P.2D 513; PEOPLE V. RUPP, 41 CAL. 2D 371, 260 P.2D 1. 
SUBSEQUENTLY, EACH PETITIONED THAT COURT FOR HABEAS CORPUS TO REVIEW
THE DETERMINATION OF THE WARDEN OF SAN QUENTIN, WHERE THEY ARE CONFINED
AWAITING EXECUTION, THAT THERE IS NO REASON TO BELIEVE PETITIONERS
INSANE AND HIS REFUSAL TO INSTITUTE PROCEEDINGS UNDER CALIFORNIA LAW TO
DETERMINE THEIR PRESENT SANITY.  TO REVIEW THE DENIAL OF THESE
PETITIONS, CARITATIVO V. TEETS, 48 A.C. (MINUTES, MAY 8, 1957); RUPP V.
TEETS, 49 A.C. (MINUTES, AUG. 27, 1957), WE GRANTED CERTIORARI.  355
U.S. 853, 854. 

PROCEDURE TO BE FOLLOWED IN DETERMINING THE SANITY OF A PERSON
CONDEMNED TO DEATH.  SECTION 3700 PROVIDES THAT, "NO JUDGE, COURT, OR
OFFICER, OTHER THAN THE GOVERNOR, CAN SUSPEND THE EXECUTION OF A
JUDGMENT OF DEATH, EXCEPT THE WARDEN OF THE STATE PRISON TO WHOM HE IS
DELIVERED FOR EXECUTION, AS PROVIDED IN THE SIX SUCCEEDING SECTIONS,
UNLESS AN APPEAL IS TAKEN."  SECTION 3701 PROVIDES THAT, "IF, AFTER HIS
DELIVERY TO THE WARDEN FOR EXECUTION, THERE IS GOOD REASON TO BELIEVE
THAT A DEFENDANT, UNDER JUDGMENT OF DEATH, HAS BECOME INSANE, THE
WARDEN MUST CALL SUCH FACT TO THE ATTENTION OF THE DISTRICT ATTORNEY OF
THE COUNTY IN WHICH THE PRISON IS SITUATED, WHOSE DUTY IT IS TO
IMMEDIATELY FILE IN THE SUPERIOR COURT OF SUCH COUNTY A PETITION,
STATING THE CONVICTION AND JUDGMENT, AND THE FACT THAT THE DEFENDANT IS
BELIEVED TO BE INSANE, AND ASKING THAT THE QUESTION OF HIS SANITY BE
INQUIRED INTO.  THEREUPON THE COURT MUST AT ONCE CAUSE TO BE SUMMONED
AND IMPANELED, FROM THE REGULAR JURY LIST OF THE COUNTY, A JURY OF 12
PERSONS TO HEAR SUCH INQUIRY." 

THE WARDEN IN THE PRESENT CASES DID NOT INSTITUTE PROCEEDINGS
PURSUANT TO THESE SECTIONS LEADING TO A JUDICIAL DETERMINATION OF
PETITIONERS' SANITY.  ACCORDING TO THE PETITIONS FOR HABEAS CORPUS
FILED IN THE CALIFORNIA SUPREME COURT, HE DID NOT DO SO IN SPITE OF THE
FACT THAT "THERE IS GOOD REASON TO BELIEVE" THAT PETITIONERS ARE
INSANE.  AFFIDAVITS OF THE WARDEN, APPENDED TO BRIEFS FILED IN THIS
COURT, STATE THAT HE HAS OBSERVED THE PETITIONERS AND EXAMINED REPORTS
SUBMITTED TO HIM BY PRISON PSYCHIATRISTS, AND THAT HE HAS NO REASON TO
BELIEVE THAT PETITIONERS ARE INSANE.  FURTHERMORE, THAT HE "INTENDS TO
FOLLOW THE STATUTES OF CALIFORNIA AND TO INSTITUTE PROCEEDINGS TO
DETERMINE (PETITIONERS')  ...  SANITY PURSUANT TO SECTION 3701 OF THE
PENAL CODE, IF AND WHEN HE HAS 'GOOD REASON TO BELIEVE' THEY ARE  ...
INSANE." 

IN RUPP'S PETITION FOR HABEAS CORPUS, IT IS STATED THAT THE
CONCLUSIONS OF THE PRISON PSYCHIATRISTS, UPON WHICH THE WARDEN
PROFESSED TO RELY IN REACHING HIS DETERMINATION THAT THERE WAS NO
REASON TO THINK RUPP INSANE, WERE MADE WITHOUT BENEFIT OF THE COMPLETE
MEDICAL AND PSYCHIATRIC REPORTS RELATING TO RUPP'S PAST HISTORY OF
MENTAL DISEASE.  THIS HISTORY IS SET FORTH IN DETAIL IN THE PETITION
AND SHOWS A CONTINUOUS RECORD OF MENTAL DISEASE EXTENDING OVER MANY
YEARS.  IT IS ALSO STATED THAT THE WARDEN HAS REFUSED TO ALLOW A
PRIVATE PSYCHIATRIST, EMPLOYED BY RUPP'S SISTER, TO EXAMINE THE
PRISONER TO DETERMINE HIS SANITY, AND HAS REFUSED TO LET RUPP'S
ATTORNEYS EXAMINE THE PRISON PSYCHIATRIC RECORDS.  IN REGARD TO
CARITATIVO, IT IS CLEAR FROM THE WARDEN'S AFFIDAVIT THAT HE REFUSED
COUNSEL PERMISSION TO HAVE THE PRISONER EXAMINED BY A PRIVATE
PSYCHIATRIST, AND DECLARED THAT HE WOULD "RELY ON THE ADVICE OF THE
MEMBERS OF HIS STAFF AS TO THE MENTAL CONDITION OF BART LUIS
CARITATIVO." 

IT IS NOW PERFECTLY CLEAR, AS IT WAS NOT WHEN THE COURT DECIDED PHYLE
V. DUFFY, 334 U.S. 431, THAT THERE IS NO REMEDY WHATSOEVER UNDER
CALIFORNIA LAW IF THE WARDEN FAILS TO PERFORM THE DUTIES IMPOSED UPON
HIM BY SEC. 3701.  NEITHER HABEAS CORPUS NOR MANDAMUS IS AVAILABLE TO
REVIEW HIS DETERMINATION THAT THERE IS NO REASON TO BELIEVE A CONDEMNED
MAN INSANE.  HIS DETERMINATION ON THIS ISSUE IS NOT A "PRELIMINARY
DETERMINATION," BUT BOTH AN INITIAL AND FINAL DETERMINATION.  THE FATE
OF THE CONDEMNED MAN RESTS ENTIRELY WITH THE WARDEN, AND DEPENDS ON HIS
WILLINGNESS TO CONSIDER THE PRISONER'S SANITY, AND, IF HE DECIDES TO
CONSIDER THIS QUESTION, HIS WILLINGNESS TO HEAR AND RATIONALLY APPRAISE
INFORMATION RELEVANT TO SUCH A DETERMINATION.  BEYOND THE WARDEN, UNDER
CALIFORNIA LAW, THERE IS NO RECOURSE OF RIGHT.  EVEN IF NO REASONABLE
MAN WOULD SAY THAT THE CONDEMNED PRISONER IS SANE, STILL, IF THE WARDEN
DOES NOT CHOOSE TO CALL THIS FACT TO THE ATTENTION OF THE DISTRICT
ATTORNEY, THE INSANE PRISONER WILL BE EXECUTED.  THUS, EVEN IF
CONSTITUTIONAL REQUIREMENTS ARE MET BY THE PROCEDURE SET FORTH IN THE
CALIFORNIA STATUTE, UNDER WHICH THE WARDEN MAY DETERMINE THE QUESTION
OF SANITY WITHOUT ANY OPPORTUNITY FOR THE CONDEMNED MAN TO PUT HIS
CASE, THERE IS NO WAY UNDER CALIFORNIA LAW TO INQUIRE INTO WHETHER THE
WARDEN HAS IN FACT FOLLOWED THIS RUDIMENTARY PROCEDURE AND MADE ANY
INQUIRY WHATSOEVER INTO THE PRISONER'S SANITY.  THE ONLY ASSURANCE THAT
HE HAS DONE SO IN THE PRESENT CASES COMES FROM THE WARDEN'S OWN
AFFIDAVITS, TWO OF WHICH WERE INTRODUCED FOR THE FIRST TIME WITH
RESPONDENTS' BRIEFS FILED IN THIS COURT. 

UNDER THE CALIFORNIA STATUTE, WHAT INFORMATION THE WARDEN CONSIDERS,
AND THE MANNER IN WHICH HE CONSIDERS IT, IN THE COMMON EXPERIENCE OF
LAWYERS A FACTOR VITAL IN DETERMINING THE OUTCOME OF ANY LEGAL INQUIRY,
ARE MATTERS RESTING SOLELY WITH THE WARDEN.  HE MAY MAKE HIS
DETERMINATION EX PARTE, AND, AS EVIDENTLY WAS TRUE IN THE PRESENT
CASES, WITHOUT AFFORDING THE CONDEMNED MAN, HIS COUNSEL, OR FAMILY, ANY
OPPORTUNITY WHATSOEVER TO PRESENT EVIDENCE OR ARGUMENTS HIGHLY RELEVANT
TO THE PROPER DISPOSITION OF THE CASE AND THEREFORE ESSENTIAL TO BE
CONSIDERED, FROM A RATIONAL POINT OF VIEW, IF THE WARDEN IS PROPERLY TO
PERFORM THE DUTY IMPOSED UPON HIM BY LAW.  IN THESE CASES THE WARDEN
RELIED ALMOST EXCLUSIVELY ON THE REPORTS OF HIS STAFF AND REFUSED TO
ALLOW EXAMINATION OF PETITIONERS BY INDEPENDENT PSYCHIATRISTS.  IF THE
PETITION FOR HABEAS CORPUS FILED ON BEHALF OF RUPP IS TO BE BELIEVED,
AND FOR OUR PURPOSES IT MUST BE BELIEVED FOR IT WAS NOT TRAVERSED, HE
WAS DENIED THE OPPORTUNITY TO PUT BEFORE THE WARDEN MUCH INFORMATION ON
HIS MEDICAL HISTORY THAT WOULD BE HIGHLY PERTINENT TO ANY INQUIRY INTO
HIS PRESENT SANITY, AND, AT THE LEAST, WAS HIGHLY RELEVANT TO A FAIR
JUDGMENT WHETHER FURTHER INQUIRY SHOULD BE PURSUED. 

IN CONSIDERING THE ADEQUACY OF THIS PROCEDURE, IT IS IMPORTANT TO
BEAR IN MIND THAT CALIFORNIA DOES NOT TOLERATE THE EXECUTION OF THE
INSANE.  CALIFORNIA PENAL CODE, SEC.  1367.  ON THE CONTRARY, FROM THE
BEGINNING OF ITS HISTORY AS A STATE, CALIFORNIA HAS EXPLICITLY
FORBIDDEN IT.  CAL. STAT. 1850, C. 119, SEC. 615.  THE STATE HAS
ADHERED TO A VIEW SET DEEP IN THE COMMON LAW AND PART AND PARCEL OF OUR
NOTIONS OF WHAT IS TOLERABLE IN A CIVILIZED SOCIETY.  THE REASONS FOR
THIS VIEW, EXPLAINING AND JUSTIFYING THE PROFOUND ABHORRENCE WITH WHICH
THE EXECUTION OF THE INSANE HAS LONG BEEN REGARDED, I HAVE SET FORTH IN
MY DISSENT IN SOLESBEE V. BALKCOM, 339 U.S. 9, 14.  TIME HAS NOT
DISCREDITED OR WEAKENED THE FORCE OF THESE REASONS.  IT IS NOT MERELY A
MATTER OF ADMINISTRATIVE GRACE, TO BE DISPENSED AT THE WILL OF THE
WARDEN, THAT AN INSANE MAN NOT BE EXECUTED.  IT IS A MATTER OF RIGHT
UNDER BOTH CALIFORNIA LAW AND THE FEDERAL CONSTITUTION.  SO IMPORTANT
DOES CALIFORNIA CONSIDER THE MATTER THAT, IN SEC. 3701 OF THE PENAL
CODE, IT HAS PROVIDED FOR A JUDICIAL PROCEEDING AND JURY DETERMINATION
OF THE QUESTION OF SANITY ONCE THE WARDEN HAS NOTIFIED THE DISTRICT
ATTORNEY.  SO, SUBSTANTIALLY, IT HAS BEEN FROM THE BEGINNING IN
CALIFORNIA.  CAL. STAT. 1850, C. 119, SEC. 502.  I MAKE NO CLAIM THAT
THE DUE PROCESS CLAUSE REQUIRES AN OPPORTUNITY TO PERSONS IN THE PLACE
OF PETITIONERS TO HAVE THEIR CLAIM TESTED IN A JUDICIAL PROCEEDING.  I
DO NOT EVEN SUGGEST THAT THERE MUST BE A FORMAL ADVERSARY HEARING
BEFORE THE WARDEN.  I DO INSIST ON THE MANDATORY REQUIREMENT THAT SOME
PROCEDURE BE ESTABLISHED FOR ASSURING THAT THE WARDEN GIVE EAR TO A
CLAIM THAT THE CIRCUMSTANCES WARRANT HIS SUBMISSION OF THE ISSUE OF
SANITY TO A DETERMINATION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN
THE CALIFORNIA STATUTES. 

SURELY THE RIGHT OF AN INSANE MAN NOT TO BE EXECUTED, A RIGHT BASED
ON MORAL PRINCIPLES DEEPLY EMBEDDED IN THE TRADITIONS AND FEELINGS OF
OUR PEOPLE AND ITSELF PROTECTED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, MERITS THE PROCEDURAL PROTECTION THAT THAT
AMENDMENT SAFEGUARDS.  WHAT KIND OF A CONSTITUTIONAL RIGHT IS IT,
ESPECIALLY IF LIFE IS AT STAKE, THE VINDICATION OF WHICH RESTS WHOLLY
IN THE HANDS OF AN ADMINISTRATIVE OFFICIAL WHOSE ACTIONS CANNOT BE
INQUIRED INTO, AND WHO NEED NOT CONSIDER THE CLAIMS OF THE PERSON MOST
VITALLY AFFECTED, THE PERSON IN WHOM THE CONSTITUTIONAL RIGHT IS SAID
TO INHERE?  IN SOLESBEE V. BALKCOM, SUPRA, THE COURT FOUND THAT A STATE
HAD NOT OFFENDED DUE PROCESS IN CONSTITUTING ITS GOVERNOR AN "APT AND
SPECIAL TRIBUNAL" FOR DETERMINING, IN EX PARTE PROCEEDINGS, THE SANITY
OF A CONDEMNED MAN AT THE TIME OF EXECUTION.  THE COURT RELIED
PARTICULARLY ON "THE SOLEMN RESPONSIBILITY OF A STATE'S HIGHEST
EXECUTIVE."  339 U.S., AT 13.  IT ANALOGIZED THE FUNCTION GIVEN THE
GOVERNOR TO THE POWER TO PARDON AND REPRIEVE, POWERS TRADITIONALLY
CONFIDED TO THE CHIEF EXECUTIVE OF THE STATE.  IT DID NOT APPEAR IN
THAT CASE WHETHER, IN EXERCISING THIS FUNCTION, THE GOVERNOR HAD
DECLINED TO HEAR STATEMENTS ON THE DEFENDANT'S BEHALF.   IN THE PRESENT
CASE, HOWEVER, THE DETERMINATION IS NOT TO BE MADE ON THE "SOLEMN
RESPONSIBILITY OF A STATE'S HIGHEST EXECUTIVE," BUT BY A PRISON
WARDEN.  THERE IS NO APPARENT REASON WHY THIS AWESOME POWER, SURELY
WITHOUT PARALLEL UNDER OUR LAW IN THE FREEDOM OF ITS EXERCISE AND THE
SERIOUSNESS OF ITS CONSEQUENCES, SHOULD NOT AFTER TODAY'S DECISION BE
ENTRUSTED TO STILL LOWER ADMINISTRATIVE OFFICIALS.  IT IS NO REFLECTION
ON THE QUALITIES OF WARDENS AND SIMILAR OFFICIALS TO POINT OUT THAT
WHEN WIELDED BY THEM IN EX PARTE PROCEEDINGS THIS POWER CAN SCARCELY BE
ASSIMILATED TO THE CHIEF EXECUTIVE'S TRADITIONAL POWER TO PARDON OR
REPRIEVE.  FINALLY, IN THESE CASES, IT DOES APPEAR THAT THE WARDEN DID
IN FACT REFUSE TO CONSIDER EVIDENCE TENDERED ON THE PRISONERS' BEHALF,
AND REFUSED TO ALLOW AN EXAMINATION BY INDEPENDENT PSYCHIATRISTS.  HE
EXPRESSLY RESTED HIS DETERMINATION ON THE UNTESTED CONCLUSIONS OF HIS
OWN STAFF. 

AUDI ALTERAM PARTEM - HEAR THE OTHER SIDE]  - A DEMAND MADE
INSISTENTLY THROUGH THE CENTURIES, IS NOW A COMMAND, SPOKEN WITH THE
VOICE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AGAINST
STATE GOVERNMENTS, AND EVERY BRANCH OF THEM - EXECUTIVE, LEGISLATIVE,
AND JUDICIAL - WHENEVER ANY INDIVIDUAL, HOWEVER LOWLY AND UNFORTUNATE,
ASSERTS A LEGAL CLAIM.  IT IS BESIDE THE POINT THAT THE CLAIM MAY TURN
OUT NOT TO BE MERITORIOUS.  IT IS BESIDE THE POINT THAT DELAY IN THE
ENFORCEMENT OF THE LAW MAY BE ENTAILED.  THE PROTECTION OF A
CONSTITUTIONAL RIGHT TO LIFE OUGHT NOT BE SUBORDINATED TO THE FEAR THAT
SOME LAWYERS WILL BE WANTING IN THE OBSERVANCE OF THEIR PROFESSIONAL
RESPONSIBILITIES.  THE RIGHT TO BE HEARD SOMEHOW BY SOMEONE BEFORE A
CLAIM IS DENIED, PARTICULARLY IF LIFE HANGS IN THE BALANCE, IS FAR
GREATER IN IMPORTANCE TO SOCIETY, IN THE LIGHT OF THE SAD HISTORY OF
ITS DENIAL, THAN INCONVENIENCE IN THE EXECUTION OF THE LAW.  IF THIS IS
TRUE WHEN MERE PROPERTY INTERESTS ARE AT STAKE, SEE WALKER V. CITY OF
HUTCHINSON, 352 U.S. 112; COVEY V. TOWN OF SOMERS, 351 U.S. 141;
MULLANE V. CENTRAL HANOVER BANK & TRUST CO., 339 U.S. 306, HOW MUCH
MORE SO WHEN THE DIFFERENCE IS BETWEEN LIFE AND DEATH.  AS MR. JUSTICE
HOLMES SAID, HAPPILY SPEAKING FOR THE COURT, IN UNITED STATES V.
OPPENHEIMER, 242 U.S. 85, 87, "IT CANNOT BE THAT THE SAFEGUARDS OF THE
PERSON, SO OFTEN AND SO RIGHTLY MENTIONED WITH SOLEMN REVERENCE, ARE
LESS THAN THOSE THAT PROTECT FROM A LIABILITY IN DEBT." 

IT MAY WELL BE THAT IF THE WARDEN OF A CALIFORNIA PRISON CANNOT ACT
ON HIS ARBITRARY JUDGMENT - FOR IT IS INHERENTLY ARBITRARY IF THE
CONDEMNED MAN OR THOSE WHO SPEAK FOR HIM ARE NOT ALLOWED TO BE HEARD -
IN DECIDING WHETHER THERE IS GOOD REASON TO BELIEVE THAT A PERSON ABOUT
TO BE EXECUTED IS INSANE, THAT UNWORTHY CLAIMS WILL BE PUT TO THE
WARDEN AND PERCHANCE ADD TO DELAYS IN THE EXECUTION OF THE LAW.  BUT
FAR BETTER SUCH MINOR INCONVENIENCES, AND AN EFFECTIVE PENAL
ADMINISTRATION OUGHT TO FIND NO DIFFICULTY IN MAKING THEM MINOR, THAN
THAT THE STATE OF CALIFORNIA SHOULD HAVE ON ITS CONSCIENCE A SINGLE
EXECUTION THAT WOULD BE BARBARIC BECAUSE THE VICTIM WAS IN FACT, THOUGH
HE HAD NO OPPORTUNITY TO SHOW IT, MENTALLY UNFIT TO MEET HIS DESTINY. 
..END :




FEDERAL TRADE COMMISSION V. NATIONAL CASUALTY CO. 357 U.S. 560 


NO. 435.  ARGUED APRIL 9-10, 1958 - DECIDED JUNE 30, 1958* - 243 F.2D
719, 245 F.2D 883, AFFIRMED. 

*TOGETHER WITH NO. 436, FEDERAL TRADE COMMISSION V. AMERICAN HOSPITAL
& LIFE INSURANCE CO., ON CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 


THE FEDERAL TRADE COMMISSION ORDERED RESPONDENT INSURANCE COMPANIES TO
CEASE AND DESIST FROM CERTAIN ADVERTISING PRACTICES FOUND BY THE
COMMISSION TO BE FALSE, MISLEADING AND DECEPTIVE, IN VIOLATION OF SEC.
5 OF THE FEDERAL TRADE COMMISSION ACT.  THE ORDERS PURPORTED TO APPLY
IN STATES HAVING LAWS FORBIDDING SUCH PRACTICES AS WELL AS IN STATES
NOT HAVING SUCH LAWS.  THE COMPANIES' ADVERTISING MATERIAL WAS PREPARED
BY THEM AND SHIPPED IN BULK TO LOCAL AGENTS WHO DISTRIBUTED IT
LOCALLY.  ONLY AN INSUBSTANTIAL AMOUNT WENT DIRECTLY FROM THE COMPANIES
TO THE PUBLIC, AND THERE WAS NO USE OF RADIO, TELEVISION, OR OTHER
MEANS OF MASS COMMUNICATION BY THE COMPANIES.  THE COURTS OF APPEALS
SET ASIDE THE COMMISSION'S ORDERS ON THE GROUND THAT, UNDER THE
MCCARRAN-FERGUSON ACT, THE COMMISSION HAD NO JURISDICTION TO MAKE SUCH
ORDERS EFFECTIVE IN STATES HAVING LAWS FORBIDDING SUCH PRACTICES. 
HELD:  THE JUDGMENTS ARE AFFIRMED.  PP. 561-565. 

FEDERAL TRADE COMMISSION V. NATIONAL CASUALTY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PER CURIAM. 

THE COURTS OF APPEALS FOR THE FIFTH AND SIXTH CIRCUITS HAVE SET ASIDE
CEASE-AND-DESIST ORDERS OF THE FEDERAL TRADE COMMISSION PROHIBITING
RESPONDENT INSURANCE COMPANIES FROM CARRYING ON CERTAIN ADVERTISING
PRACTICES FOUND BY THE COMMISSION TO BE FALSE, MISLEADING, AND
DECEPTIVE, IN VIOLATION OF THE FEDERAL TRADE COMMISSION ACT, 15 U.S.C.
SEC. 45.  (FN1)  THESE ORDERS SEEK TO PROSCRIBE ACTIVITIES WITHIN THE
BOUNDARIES OF STATES THAT HAVE THEIR OWN STATUTES PROHIBITING UNFAIR
AND DECEPTIVE INSURANCE PRACTICES AS WELL AS WITHIN STATES THAT DO
NOT.  THE COURTS BELOW CONCLUDED THAT IN VIEW OF THE EXISTENCE OF THESE
STATUTES, THE MCCARRAN-FERGUSON ACT, 15 U.S.C. SECS. 1011-1015,
PROHIBITS THE FEDERAL TRADE COMMISSION FROM REGULATING SUCH PRACTICES
WITHIN THE STATES HAVING THESE STATUTES.  WE GRANTED CERTIORARI TO
REVIEW THIS INTERPRETATION OF AN IMPORTANT FEDERAL STATUTE.  355 U.S.
867. 

RESPONDENTS, THE NATIONAL CASUALTY COMPANY IN NO. 435 AND THE
AMERICAN HOSPITAL AND LIFE INSURANCE COMPANY IN NO. 436, ENGAGE IN THE
SALE OF HEALTH AND ACCIDENT INSURANCE.  NATIONAL IS LICENSED TO SELL
POLICIES IN ALL STATES, AS WELL AS THE DISTRICT OF COLUMBIA AND HAWAII,
WHILE AMERICAN IS LICENSED IN FOURTEEN STATES.  SOLICITATION OF
BUSINESS FOR NATIONAL IS CARRIED ON BY INDEPENDENT AGENTS WHO OPERATE
ON COMMISSION.  THE COMPANY'S ADVERTISING MATERIAL IS PREPARED BY IT
AND SHIPPED IN BULK TO THESE AGENTS, WHO DISTRIBUTE THE MATERIAL
LOCALLY AND ASSUME THE EXPENSE OF SUCH DISSEMINATION.  ONLY AN
INSUBSTANTIAL AMOUNT OF ANY ADVERTISING GOES DIRECTLY BY MAIL FROM THE
COMPANY TO THE PUBLIC, AND THERE IS NO USE OF RADIO, TELEVISION, OR
OTHER MEANS OF MASS COMMUNICATION BY THE COMPANY.  AMERICAN DOES NOT
MATERIALLY DIFFER FROM NATIONAL IN METHOD OF OPERATION. 

THE PERTINENT PORTIONS OF THE MCCARRAN-FERGUSON ACT ARE SET FORTH IN
THE MARGIN.  (FN2)  AN EXAMINATION OF THAT STATUTE AND ITS LEGISLATIVE
HISTORY ESTABLISHES THAT THE ACT WITHDREW FROM THE FEDERAL TRADE
COMMISSION THE AUTHORITY TO REGULATE RESPONDENTS' ADVERTISING PRACTICES
IN THOSE STATES WHICH ARE REGULATING THOSE PRACTICES UNDER THEIR OWN
LAWS.  (FN3) 

PETITIONER ASSERTS THAT FOR CONSTITUTIONAL REASONS THE MCCARRAN
FERGUSON ACT SHOULD BE CONSTRUED TO AUTHORIZE FEDERAL REGULATION IN
THESE CASES.  IT IS URGED THAT BECAUSE CONGRESS UNDERSTOOD THAT IN
ACCORDANCE WITH DUE PROCESS THERE ARE TERRITORIAL LIMITATIONS ON THE
POWER OF THE STATES TO REGULATE AN INTERSTATE BUSINESS, IT DID NOT
INTEND TO FORECLOSE FEDERAL REGULATION OF INTERSTATE INSURANCE AS A
SUPPLEMENT TO STATE ACTION.  (FN4)  HOWEVER, PETITIONER CONCEDES THAT
THIS CONSTITUTIONAL INFIRMITY ON THE POWER OF THE STATES DOES NOT
OPERATE TO HINDER STATE REGULATION OF THE ADVERTISING PRACTICES OF THE
RESPONDENTS IN THE INSTANT CASES.  WHATEVER MAY HAVE BEEN THE INTENT OF
CONGRESS WITH REGARD TO INTERSTATE INSURANCE PRACTICES WHICH THE STATES
CANNOT FOR CONSTITUTIONAL REASONS REGULATE EFFECTIVELY, THAT INTENT IS
IRRELEVANT IN THE CASES BEFORE US. RESPONDENTS' ADVERTISING PROGRAMS
REQUIRE DISTRIBUTION BY THEIR LOCAL AGENTS, AND THERE IS NO QUESTION
BUT THAT THE STATES POSSESS AMPLE MEANS TO REGULATE THIS ADVERTISING
WITHIN THEIR RESPECTIVE BOUNDARIES.  CF., E.G., ROBERTSON V.
CALIFORNIA, 328 U.S. 440, 445, N. 6, 461.  (FN5) 

PETITIONER ALSO ARGUES IN A DIFFERENT VEIN THAT EVEN IF THE MCCARRAN
FERGUSON ACT BARS FEDERAL REGULATION WHERE STATE REGULATION HAS BEEN
EFFECTIVELY APPLIED, THE EXERCISE OF COMMISSION AUTHORITY IN THESE
CASES SHOULD BE UPHELD BECAUSE THE STATES HAVE NOT "REGULATED" WITHIN
THE MEANING OF THE SECTION 2(B) PROVISO.  THIS ARGUMENT IS NOT
PERSUASIVE IN THE INSTANT CASES.  EACH STATE IN QUESTION HAS ENACTED
PROHIBITORY LEGISLATION WHICH PROSCRIBES UNFAIR INSURANCE ADVERTISING
AND AUTHORIZES ENFORCEMENT THROUGH A SCHEME OF ADMINISTRATIVE
SUPERVISION.  (FN6)  PETITIONER DOES NOT ARGUE THAT THE STATUTORY
PROVISIONS HERE UNDER REVIEW WERE MERE PRETENSE.  RATHER, IT URGES THAT
A GENERAL PROHIBITION DESIGNED TO GUARANTEE CERTAIN STANDARDS OF
CONDUCT IS TOO "INCHOATE" TO BE "REGULATION" UNTIL THAT PROHIBITION HAS
BEEN CRYSTALLIZED INTO "ADMINISTRATIVE ELABORATION OF THESE STANDARDS
AND APPLICATION IN INDIVIDUAL CASES."  HOWEVER, ASSUMING THERE IS SOME
DIFFERENCE IN THE MCCARRAN-FERGUSON ACT BETWEEN "LEGISLATION" AND
"REGULATION," NOTHING IN THE LANGUAGE OF THAT ACT OR ITS LEGISLATIVE
HISTORY SUPPORTS THE DISTINCTIONS DRAWN BY PETITIONER.  SO FAR AS WE
CAN DETERMINE FROM THE RECORDS AND ARGUMENTS IN THESE CASES, THE
PROVISO IN SECTION 2(B) HAS BEEN SATISFIED. 

THE JUDGMENTS OF THE COURTS OF APPEALS ARE AFFIRMED. 

FN1  THE DECISION OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IS
REPORTED AT 243 F.2D 719.  THE DECISION OF THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT IS REPORTED AT 245 F.2D 883. 

FN2  "THAT THE CONGRESS HEREBY DECLARES THAT THE CONTINUED REGULATION
AND TAXATION BY THE SEVERAL STATES OF THE BUSINESS OF INSURANCE IS IN
THE PUBLIC INTEREST, AND THAT SILENCE ON THE PART OF THE CONGRESS SHALL
NOT BE CONSTRUED TO IMPOSE ANY BARRIER TO THE REGULATION OR TAXATION OF
SUCH BUSINESS BY THE SEVERAL STATES. 

"SEC. 2.  (A)  THE BUSINESS OF INSURANCE, AND EVERY PERSON ENGAGED
THEREIN, SHALL BE SUBJECT TO THE LAWS OF THE SEVERAL STATES WHICH
RELATE TO THE REGULATION OR TAXATION OF SUCH BUSINESS. 

"(B)  NO ACT OF CONGRESS SHALL BE CONSTRUED TO INVALIDATE, IMPAIR, OR
SUPERSEDE ANY LAW ENACTED BY ANY STATE FOR THE PURPOSE OF REGULATING
THE BUSINESS OF INSURANCE, OR WHICH IMPOSES A FEE OR TAX UPON SUCH
BUSINESS, UNLESS SUCH ACT SPECIFICALLY RELATES TO THE BUSINESS OF
INSURANCE:  PROVIDED, THAT AFTER JUNE 30, 1948,  ...  THE SHERMAN ACT,
...  THE CLAYTON ACT, AND  ...  THE FEDERAL TRADE COMMISSION ACT  ...
SHALL BE APPLICABLE TO THE BUSINESS OF INSURANCE TO THE EXTENT THAT
SUCH BUSINESS IS NOT REGULATED BY STATE LAW  ...  ."  59 STAT. 33, AS
AMENDED, 61 STAT. 448, 70 STAT. 908. 

FN3  THE CRUCIAL PROVISO IN SECTION 2(B) WAS THE SUBJECT OF EXTENDED
DEBATE.  SEE, ESPECIALLY, THE REMARKS OF SENATOR MCCARRAN, 91 CONG.
REC. 1443, AND SENATOR FERGUSON, 91 CONG. REC. 1481.  A SUBSTANTIAL
AMOUNT OF MATERIAL APPEARS DURING THE FORMULATING PERIOD OF THE
MCCARRAN-FERGUSON ACT.  SEE, E.G., S. REP. NO. 20, 79TH CONG., 1ST
SESS.; H.R.  REP. NO. 143, 79TH CONG., 1ST SESS., AND THE REMARKS OF
SENATORS FERGUSON, MURDOCK, AND RADCLIFFE, 91 CONG. REC. 482-483, AND
OF REPRESENTATIVES HANCOCK AND GWYNNE, 91 CONG. REC.  1087, 1089-1090. 

FN4  CF., E.G., H.R. REP. NO. 143, 79TH CONG., 1ST SESS. 3, AND 91
CONG. REC. 1442. 

FN5  SEE ALSO HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313; OSBORN
V. OZLIN, 310 U.S. 53. 

FN6  AT THE TIME THE COMPLAINTS WERE FILED THIRTY-SIX STATES HAD
ENACTED THE "MODEL UNFAIR TRADE PRACTICES BILL FOR INSURANCE."  EIGHT
OTHERS HAD STATUTES ESSENTIALLY THE SAME IN EFFECT AS THE "MODEL
BILL." 
..END :











AARON V. COOPER 357 U.S. 566 


NO. 1095.  DECIDED JUNE 30, 1958. 


A FEDERAL DISTRICT COURT ENTERED AN ORDER AUTHORIZING PUBLIC SCHOOL
OFFICIALS OF LITTLE ROCK, ARK., TO SUSPEND UNTIL JANUARY 1961 A PLAN OF
RACIAL INTEGRATION PREVIOUSLY APPROVED BY THAT COURT AND AFFIRMED BY
THE COURT OF APPEALS; AND IT DENIED A STAY OF ITS SUSPENSION ORDER
PENDING APPEAL.  AFTER AN APPEAL TO THE COURT OF APPEALS HAD BEEN
DOCKETED AND APPLICATION FOR A STAY HAD BEEN MADE TO THAT COURT,
PETITIONERS APPLIED TO THIS COURT FOR A WRIT OF CERTIORARI TO REVIEW
THE ORDER OF THE DISTRICT COURT BEFORE THE COURT OF APPEALS HAD HAD AN
OPPORTUNITY TO ACT ON THE PETITION FOR A STAY OR TO HEAR THE APPEAL. 
HELD:  THE WRIT IS DENIED ON THE ASSUMPTION THAT THE COURT OF APPEALS
WILL ACT UPON THE APPLICATION FOR A STAY OR THE APPEAL IN AMPLE TIME TO
PERMIT ARRANGEMENTS TO BE MADE FOR THE NEXT SCHOOL YEAR.  PP. 566-567. 

AARON ET AL. V. COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE
LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

ON JUNE 21, 1958, THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
ARKANSAS ENTERED AN ORDER AUTHORIZING THE MEMBERS OF THE SCHOOL BOARD
OF LITTLE ROCK, ARKANSAS, AND THE SUPERINTENDENT OF SCHOOLS, TO SUSPEND
UNTIL JANUARY 1961 A PLAN OF INTEGRATION THERETOFORE APPROVED BY THAT
COURT IN AUGUST 1956, AARON V. COOPER, 143 F. SUPP. 855, AND AFFIRMED
BY THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN APRIL 1957.  243 F.2D
361.  ON JUNE 23, 1958, THE DISTRICT COURT DENIED AN APPLICATION FOR A
STAY OF EXECUTION OF ITS ORDER.  AN APPEAL WAS DOCKETED IN THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT ON JUNE 24, 1958, AND THERE IS PENDING
IN THAT COURT AN APPLICATION FOR A STAY OF THE DISTRICT COURT'S ORDER. 

BY THE PRESENT PETITION THIS COURT IS ASKED TO BRING THE CASE HERE
BEFORE THE COURT OF APPEALS HAS HAD AN OPPORTUNITY TO ACT UPON THE
PETITION FOR A STAY OR TO HEAR THE APPEAL.  THE POWER OF THE COURT TO
DO SO HAS BEEN EXERCISED BUT RARELY, AND THE ISSUES AND CIRCUMSTANCES
RELEVANT TO THE PRESENT PETITION DO NOT WARRANT ITS EXERCISE NOW.  THE
ORDER THAT THE DISTRICT COURT SUSPENDED HAS, IN DIFFERENT POSTURES,
BEEN BEFORE THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT THREE TIMES
ALREADY.  AARON V. COOPER, 243 F.2D 361; THOMASON V. COOPER, 254 F.2D
808 (APRIL 28, 1958); FAUBUS V. UNITED STATES, 254 F.2D 797 (APRIL 28,
1958).  THAT COURT IS THE REGULAR COURT FOR REVIEWING ORDERS OF THE
DISTRICT COURT HERE CONCERNED, AND THE APPEAL AND THE PETITION FOR A
STAY ARE MATTERS PROPERLY TO BE ADJUDICATED BY IT IN THE FIRST
INSTANCE. 

WE HAVE NO DOUBT THAT THE COURT OF APPEALS WILL RECOGNIZE THE VITAL
IMPORTANCE OF THE TIME ELEMENT IN THIS LITIGATION, AND THAT IT WILL ACT
UPON THE APPLICATION FOR A STAY OR THE APPEAL IN AMPLE TIME TO PERMIT
ARRANGEMENTS TO BE MADE FOR THE NEXT SCHOOL YEAR. 

ACCORDINGLY, THE PETITION FOR CERTIORARI IS DENIED. 
..END :

















FIRST METHODIST CHURCH OF SAN LEANDRO V. HORSTMANN 357 U.S. 568 


NO. 485.  DECIDED JUNE 30, 1958. 


48 CAL. 2D 901, 311 P.2D 542, REVERSED ON THE AUTHORITY OF CASES
CITED. 

FIRST METHODIST CHURCH OF SAN LEANDRO ET AL. V. HORSTMANN, ASSESSOR OF
ALAMEDA COUNTY, CALIFORNIA, ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  NO. 382, FIRST UNITARIAN CHURCH OF LOS
ANGELES V. COUNTY OF LOS ANGELES, ANTE, P. 545; NO. 385, VALLEY
UNITARIAN-UNIVERSALIST CHURCH, INC., V. COUNTY OF LOS ANGELES, ANTE, P.
545; NO. 483, SPEISER V. RANDALL, ANTE, P. 513, AND NO. 484, PRINCE V.
CITY AND COUNTY OF SAN FRANCISCO, ANTE, P. 513, DECIDED THIS DAY. 

MR. JUSTICE CLARK DISSENTS FOR THE REASONS SET FORTH IN HIS
DISSENTING OPINIONS IN NOS. 382 AND 385, AND NOS. 483 AND 484, DECIDED
THIS DAY. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



COLUMBIA BROADCASTING SYSTEM V. ATKINSON 357 U.S. 569 


NO. 756.  DECIDED JUNE 30, 1958* - APPEALS DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  49 CAL. 2D 338, 316 P.2D 960. 

*TOGETHER WITH NO. 757, RADIO CORPORATION OF AMERICA ET AL. V.
ANDERSON ET AL., AND NO. 759, AMERICAN FEDERATION OF MUSICIANS OF THE
UNITED STATES AND CANADA V. ATKINSON ET AL., ALSO ON APPEALS FROM THE
SAME COURT. 


COLUMBIA BROADCASTING SYSTEM, INC., ET AL. V. ATKINSON ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEALS ARE DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEALS WERE TAKEN AS PETITIONS FOR
WRITS OF CERTIORARI, CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :








PENNSYLVANIA V. BOARD OF DIRECTORS OF CITY TRUSTS OF PHILADELPHIA 357
U.S. 570 


NO. 947.  DECIDED JUNE 30, 1958 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW:  391 PA. 434, 138 A.2D 844. 


PENNSYLVANIA ET AL. V. BOARD OF DIRECTORS OF CITY TRUSTS OF PHILADELPHIA
ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














NATIONAL BISCUIT CO. V. PENNSYLVANIA 357 U.S. 571 


NO. 990.  DECIDED JUNE 30, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  390 PA. 642, 136 A.2D
821. 


NATIONAL BISCUIT CO. V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















PRIMBS V. CALIFORNIA 357 U.S. 572 


NO. 730, MISC.  DECIDED JUNE 30, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


PRIMBS V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, LOS ANGELES COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















JOINES V. UNITED STATES 357 U.S. 573 


NO. 387.  DECIDED JUNE 30, 1958 - REPORTED BELOW:  246 F.2D 278. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED FOR
CONSIDERATION IN LIGHT OF JONES V. UNITED STATES, ANTE, P. 493. 

JOINES V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT IS VACATED AND THE
CASE IS REMANDED FOR CONSIDERATION IN LIGHT OF NO. 331, JONES V. UNITED
STATES, ANTE, P. 493, DECIDED THIS DAY. 

MR. JUSTICE BURTON AND MR. JUSTICE CLARK DISSENT FOR THE REASONS SET
FORTH IN THE DISSENTING OPINION IN NO. 331, DECIDED THIS DAY. 
..END :








INDIVIGLIO V. UNITED STATES 357 U.S. 574 


NO. 753.  DECIDED JUNE 30, 1958 - CERTIORARI GRANTED - REPORTED BELOW:
249 F.2D 549. 


UPON CONSIDERATION OF THE ENTIRE RECORD AND THE CONFESSION OF ERROR BY
THE SOLICITOR GENERAL, JUDGMENT REVERSED ON AUTHORITY OF CASES CITED. 

INDIVIGLIO ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  UPON CONSIDERATION
OF THE ENTIRE RECORD AND THE CONFESSION OF ERROR BY THE SOLICITOR
GENERAL, THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT IS REVERSED.  JENCKS V. UNITED STATES, 353 U.S. 657.  SEE
ALSO AGNELLO V. UNITED STATES, 269 U.S. 20, AND GIORDENELLO V. UNITED
STATES, ANTE, P. 480, DECIDED THIS DAY. 
..END :








ROSS V. SCHNECKLOTH 357 U.S. 575 


NO. 513, MISC.  DECIDED JUNE 30, 1958* - REPORTED BELOW:  NO. 513,
MISC., 51 WASH. 2D 893, 318 P.2D 975. 

*TOGETHER WITH NO. 596, MISC., WOODS V. RHAY, SUPERINTENDENT,
WASHINGTON STATE PENITENTIARY, ALSO ON PETITION FOR WRIT OF CERTIORARI
TO THE SAME COURT. 


CERTIORARI GRANTED; JUDGMENTS VACATED; AND CASES REMANDED FOR
CONSIDERATION IN THE LIGHT OF ESKRIDGE V. WASHINGTON STATE PRISON
BOARD, ANTE, P. 214. 

ROSS V. SCHNECKLOTH, SUPERINTENDENT, WASHINGTON STATE PENITENTIARY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON. 

PER CURIAM. 

THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITIONS
FOR WRITS OF CERTIORARI ARE GRANTED.  THE JUDGMENTS OF THE SUPREME
COURT OF WASHINGTON ARE VACATED AND THE CASES ARE REMANDED FOR
CONSIDERATION IN LIGHT OF ESKRIDGE V. WASHINGTON STATE PRISON BOARD,
ANTE, P. 214. 
..END :




GIORDENELLO V. UNITED STATES 357 U.S. 576 


NO. 515, MISC.  DECIDED JUNE 30, 1958 - REPORTED BELOW:  249 F.2D 549. 


CERTIORARI GRANTED AND JUDGMENT REVERSED ON AUTHORITY OF GIORDENELLO
V. UNITED STATES, ANTE, P. 480. 

GIORDENELLO V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT IS REVERSED.  NO. 549,
GIORDENELLO V. UNITED STATES, ANTE, P. 480, DECIDED THIS DAY. 

MR. JUSTICE BURTON, MR. JUSTICE CLARK, AND MR. JUSTICE WHITTAKER
DISSENT FOR THE REASONS SET FORTH IN THE DISSENTING OPINION IN NO. 549,
DECIDED THIS DAY. 
..END :







URRUTIA V. UNITED STATES 357 U.S. 577 


NO. 756, MISC.  DECIDED JUNE 30, 1958 - CERTIORARI GRANTED - REPORTED
BELOW:  253 F.2D 501. 


UPON CONSIDERATION OF THE ENTIRE RECORD AND THE CONFESSION OF ERROR BY
THE SOLICITOR GENERAL, JUDGMENT REVERSED AND CASE REMANDED FOR
HEARING. 

URRUTIA V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  UPON CONSIDERATION OF THE ENTIRE
RECORD AND THE CONFESSION OF ERROR BY THE SOLICITOR GENERAL, THE
JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT IS
REVERSED AND THE CASE IS REMANDED FOR HEARING. 
..END :








HANSFORD V. UNITED STATES 357 U.S. 578 


NO. 826, MISC.  DECIDED JUNE 30, 1958. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED FOR
CONSIDERATION IN THE LIGHT OF ELLIS V. UNITED STATES, 356 U.S. 674. 

HANSFORD V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR CONSIDERATION IN LIGHT OF ELLIS
V. UNITED STATES, 356 U.S. 674.  IT IS ORDERED THAT THE JUDGMENT IN
THIS CASE ISSUE FORTHWITH. 
..END :









MCALLISTER V. MAGNOLIA PETROLEUM CO. 357 U.S. 221 


NO. 83.  ARGUED APRIL 1, 1958 - DECIDED JUNE 23, 1958 - 290 S.W.2D 313,
JUDGMENT VACATED AND CAUSE REMANDED. 


1.  WHERE AN ACTION FOR UNSEAWORTHINESS IS COMBINED WITH AN ACTION
UNDER THE JONES ACT, A COURT CANNOT APPLY TO THE FORMER A SHORTER
PERIOD OF LIMITATIONS THAN CONGRESS HAS PRESCRIBED FOR THE LATTER.  PP.
221-226. 

2.  IN THIS CASE, THE TRIAL JUDGE'S INSTRUCTIONS TO THE JURY ON THE
ISSUE OF UNSEAWORTHINESS WERE ERRONEOUS, SINCE THEY CARRIED THE
INCORRECT IMPLICATION THAT PETITIONER COULD RECOVER FOR UNSEAWORTHINESS
ONLY IF THE DEFECT WAS OF SUCH QUALITY THAT IT RENDERED THE WHOLE
VESSEL UNFIT FOR THE PURPOSE FOR WHICH IT WAS INTENDED.  PP. 226-227. 

MCALLISTER V. MAGNOLIA PETROLEUM CO. 

CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, FIFTH SUPREME
JUDICIAL DISTRICT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER A STATE COURT MAY APPLY ITS TWO
YEAR STATUTE OF LIMITATIONS TO BAR AN UNSEAWORTHINESS ACTION THAT IS
JOINED WITH AN ACTION FOR NEGLIGENCE UNDER THE JONES ACT. 

PETITIONER WAS A MEMBER OF THE CREW OF A VESSEL OWNED AND OPERATED BY
RESPONDENT.  HIS BACK WAS INJURED OCT. 19, 1950, WHEN HE SLIPPED AND
FELL DOWN A STAIRWAY LEADING FROM THE LOUNGE TO THE GALLEY.  HE
REPORTED THE INJURY, AND THE SHIP'S LOG BOOK SUPPORTS HIS ALLEGATION
THAT THE STEPS WERE WET.  AT THE TERMINATION OF THE VOYAGE PETITIONER
CONSULTED A DOCTOR ABOUT THE PAIN AND STIFFNESS IN HIS BACK. 
INTERMITTENT MEDICAL ATTENTION FAILED TO ARREST A DETERIORATING
CONDITION.  IN MARCH 1953, A SPECIALIST IN ORTHOPEDICS DIAGNOSED THE
DIFFICULTY AS RUPTURED DISCS BETWEEN THE VERTEBRAE.  BY JULY 6, 1953,
PETITIONER COULD NO LONGER PERFORM HIS DUTIES ABOARD RESPONDENT'S
VESSEL, AND ON THAT DATE HE ENTERED A UNITED STATES PUBLIC HEALTH
MARINE HOSPITAL AS AN INJURED SEAMAN.  AFTER HIS DISCHARGE HE CONSULTED
AN ATTORNEY AND THIS STATE-COURT ACTION WAS FILED AUG. 27, 1953, IN THE
DISTRICT COURT OF DALLAS COUNTY, TEXAS. 

PETITIONER CLAIMED DAMAGES UNDER THE JONES ACT FOR NEGLIGENCE (FN1)
AND UNDER THE GENERAL MARITIME LAW FOR UNSEAWORTHINESS.  HE ALSO ASKED
FOR MAINTENANCE AND CURE UNDER THE GENERAL MARITIME LAW.  HE ALLEGED
THAT THE PORTHOLES AND DECK AT THE HEAD OF THE STAIRS WERE NOT
WATERTIGHT, THAT THEY ALLOWED WATER TO ACCUMULATE ON THE STAIRS, AND
THAT THIS CONDITION WAS THE PROXIMATE CAUSE OF HIS FALL.  RESPONDENT'S
ANSWER DENIED THE ALLEGATIONS OF NEGLIGENCE AND UNSEAWORTHINESS, AND
AVERRED THAT PETITIONER'S CLAIMS WERE BARRED BY THE PERTINENT STATUTES
OF LIMITATIONS AND BY LACHES.  THE TRIAL COURT RULED THAT THE ACTIONS
WERE NOT BARRED, AND AFTER HEARING EVIDENCE SUBMITTED ALL THREE CLAIMS
TO THE JURY.  (FN2)  THE JURY RETURNED SPECIAL VERDICTS IMPORTING THE
FOLLOWING FINDINGS: PETITIONER WAS INJURED WHILE ATTEMPTING TO WALK
DOWN THE STAIRS IN QUESTION; THE PORTHOLES AND DECK ABOVE AND NEAR THE
STAIRS WERE NOT WATERTIGHT; THESE DEFECTS WERE NOT DUE TO THE
NEGLIGENCE OF RESPONDENTS; AND THE CONDITION DID NOT MAKE THE VESSEL
UNSEAWORTHY.  (FN3)  PURSUANT TO THESE FINDINGS, THE TRIAL COURT
ENTERED JUDGMENT FOR RESPONDENT ON THE JONES ACT AND UNSEAWORTHINESS
COUNTS, AND AWARDED PETITIONER $6,258 FOR MAINTENANCE AND CURE. 

BOTH PARTIES APPEALED TO THE TEXAS COURT OF CIVIL APPEALS. 
RESPONDENT SOUGHT TO OVERTURN THE AWARD FOR MAINTENANCE AND CURE, BUT
THE TRIAL COURT'S DECISION IN THAT RESPECT WAS AFFIRMED AND THAT
PORTION OF THE CASE IS NOT BEFORE US.  PETITIONER TOOK NO APPEAL FROM
THE JUDGMENT SO FAR AS IT CONCERNED HIS CLAIM UNDER THE JONES ACT, SO
THAT PORTION OF THE CASE IS ALSO OUTSIDE THE SCOPE OF OUR REVIEW. 
LIMITING HIS APPEAL TO THE UNSEAWORTHINESS ASPECT OF HIS CASE,
PETITIONER ASSIGNED ERRORS IN ADMITTING EVIDENCE AND IN INSTRUCTING THE
JURY.  THE COURT OF CIVIL APPEALS FOUND IT UNNECESSARY TO RULE UPON
THESE QUESTIONS, FOR IN ITS OPINION THE UNSEAWORTHINESS ACTION WAS
BARRED BY THE TWO-YEAR TEXAS STATUTE OF LIMITATIONS PERTAINING TO
ACTIONS FOR PERSONAL INJURIES.  (FN4) 290 S.W.2D 313.  THE TEXAS
SUPREME COURT REFUSED PETITIONER'S APPLICATION FOR WRIT OF ERROR.  IN
VIEW OF THE IMPORTANCE OF THIS RULING FOR MARITIME PERSONAL INJURY
LITIGATION IN THE STATE COURTS, WE GRANTED PETITIONER'S MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS, AND GRANTED CERTIORARI.  352 U.S.
1000. 

IN THE VIEW WE TAKE OF THIS CASE IT IS UNNECESSARY FOR US TO DECIDE
THE BROAD QUESTION OF WHETHER A STATE COURT IS FREE TO APPLY ITS OWN
STATUTES OF LIMITATION TO AN ADMIRALTY RIGHT OF ACTION FOR WHICH NO
SPECIAL LIMITATION IS PRESCRIBED, OR WHETHER IT IS BOUND TO DETERMINE
THE TIMELINESS OF SUCH ACTIONS BY THE ADMIRALTY DOCTRINE OF LACHES. 
(FN5)  FOR THE REASONS STATED HEREAFTER, WE SIMPLY HOLD THAT WHERE AN
ACTION FOR UNSEAWORTHINESS IS COMBINED WITH AN ACTION UNDER THE JONES
ACT A COURT CANNOT APPLY TO THE FORMER A SHORTER PERIOD OF LIMITATIONS
THAN CONGRESS HAS PRESCRIBED FOR THE LATTER.  WE THINK THIS IS SO
WHETHER THE ACTION IS AT LAW OR IN ADMIRALTY, IN THE STATE OR THE
FEDERAL COURTS. 

THE APPROPRIATE PERIOD OF LIMITATIONS FOR THIS ACTION MUST BE
DETERMINED WITH AN EYE TO THE PRACTICALITIES OF ADMIRALTY PERSONAL
INJURY LITIGATION.  WHEN A SEAMAN IS INJURED HE HAS THREE MEANS OF
RECOVERY AGAINST HIS EMPLOYER:  (1) MAINTENANCE AND CURE, (2)
NEGLIGENCE UNDER THE JONES ACT, AND (3) UNSEAWORTHINESS.  WITHOUT
ELABORATING ON THE NATURE OF THESE THREE ACTIONS, IT IS SUFFICIENT TO
SAY THAT THEY ARE SO VARIED IN THEIR ELEMENTS OF PROOF, TYPE OF
DEFENSES, AND EXTENT OF RECOVERY THAT A SEAMAN WILL RARELY FOREGO HIS
RIGHT TO SUE FOR ALL THREE.  BUT IF THE SEAMAN IS TO SUE FOR BOTH
UNSEAWORTHINESS AND JONES ACT NEGLIGENCE, HE MUST DO SO IN A SINGLE
PROCEEDING.  THAT IS A CONSEQUENCE OF THIS COURT'S DECISION IN
BALTIMORE S.S. CO. V. PHILLIPS, 274 U.S. 316, WHICH HELD THAT THESE
CLAIMS WERE BUT ALTERNATIVE "GROUNDS" OF RECOVERY FOR A SINGLE CAUSE OF
ACTION.  A JUDGMENT IN THE SEAMAN'S LIBEL FOR UNSEAWORTHINESS WAS HELD
TO BE A COMPLETE "BAR" TO HIS SUBSEQUENT ACTION FOR THE SAME INJURIES
UNDER THE JONES ACT. 

SINCE THE SEAMAN MUST SUE FOR BOTH UNSEAWORTHINESS AND JONES ACT
NEGLIGENCE IN ORDER TO MAKE FULL UTILIZATION OF HIS REMEDIES FOR
PERSONAL INJURY, AND SINCE THAT CAN BE ACCOMPLISHED ONLY IN A SINGLE
PROCEEDING, A TIME LIMITATION ON THE UNSEAWORTHINESS CLAIM EFFECTS IN
SUBSTANCE A SIMILAR LIMITATION ON THE RIGHT OF ACTION UNDER THE JONES
ACT.  CONGRESS HAS PROVIDED THAT A SEAMAN SHALL HAVE THREE YEARS TO
BRING HIS ACTION UNDER THE JONES ACT.  (FN6)  A STATE COURT CANNOT
REDUCE THAT TIME BY APPLYING ITS OWN STATUTE OF LIMITATIONS TO SUCH AN
ACTION.  ENGEL V. DAVENPORT, 271 U.S. 33; CF. COX V. ROTH, 348 U.S.
207.  AS AN ESSENTIAL COROLLARY OF THAT PROPOSITION, IT MAY NOT QUALIFY
THE SEAMAN'S JONES ACT RIGHT BY AFFIXING A SHORTER LIMITATION TO HIS
CONCURRENT RIGHT OF ACTION FOR UNSEAWORTHINESS.  (FN7)  TO BE SURE, THE
SEAMAN'S RIGHT OF ACTION UNDER THE JONES ACT IS NOT EXTINGUISHED WHEN A
STATE IMPOSES A TWO-YEAR LIMITATION ON THE RIGHT TO SUE FOR
UNSEAWORTHINESS FOR THE SAME INJURY.  BUT IN VIEW OF THE PRACTICAL
NECESSITY OF COMBINING BOTH CLAIMS IN A SINGLE ACTION, BALTIMORE S.S.
CO. V. PHILLIPS, SUPRA, THE UNSEAWORTHINESS LIMITATION EFFECTIVELY
DIMINISHES THE TIME WITHIN WHICH THE SEAMAN MUST COMMENCE HIS ACTION
UNDER THE JONES ACT.  THE RESULT FALLS SHORT OF AFFORDING SEAMEN "THE
FULL BENEFIT OF FEDERAL LAW," GARRETT V. MOORE-MCCORMACK CO., 317 U.S.
239, 243, TO WHICH THEY ARE ENTITLED WHEN STATE COURTS UNDERTAKE TO
ADJUDICATE CLAIMS UNDER THE FEDERAL MARITIME LAW. 

BECAUSE THE STATE COURT THOUGHT PETITIONER'S ACTION WAS BARRED BY THE
STATUTE OF LIMITATIONS, IT HAD NO OCCASION TO CONSIDER THE ASSIGNMENT
OF ERROR IN CONNECTION WITH THE TRIAL JUDGE'S INSTRUCTIONS ON
UNSEAWORTHINESS.  THE PARTIES HAVE ARGUED THE MATTER, AND IN
FURTHERANCE OF WHAT WE DEEM TO BE SOUND JUDICIAL ADMINISTRATION,
WEYERHAEUSER S.S. CO. V. NACIREMA OPERATING CO., 355 U.S. 563, 569, WE
RULE ON THE QUESTION AT THIS TIME.  WE THINK THAT THE CHARGES SET OUT
IN THE MARGIN (FN8) WERE ERRONEOUS.  THEY CARRIED THE INCORRECT
IMPLICATION THAT PETITIONER COULD RECOVER FOR UNSEAWORTHINESS ONLY IF
THE DEFECT WAS OF SUCH QUALITY THAT IT RENDERED THE WHOLE VESSEL UNFIT
FOR THE PURPOSE FOR WHICH IT WAS INTENDED.  (FN9)  IT IS WELL SETTLED
THAT "THE VESSEL AND OWNER ARE LIABLE TO INDEMNIFY A SEAMAN FOR INJURY
CAUSED BY UNSEAWORTHINESS OF THE VESSEL OR ITS APPURTENANT APPLIANCES
AND EQUIPMENT  ...  ."  MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96, 99. 

THE JUDGMENT OF THE COURT OF CIVIL APPEALS OF TEXAS IS VACATED, AND
THE CAUSE IS REMANDED TO IT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  46 U.S.C. SEC. 688. 

FN2  RECENT AUTHORITIES HAVE EFFECTIVELY DISPOSED OF SUGGESTIONS IN
EARLIER CASES THAT AN INJURED SEAMAN CAN BE REQUIRED TO EXERCISE AN
ELECTION BETWEEN HIS REMEDIES FOR NEGLIGENCE UNDER THE JONES ACT AND
FOR UNSEAWORTHINESS.  MCCARTHY V. AMERICAN EASTERN CORP., 175 F.2D 724
(C.A. 3D CIR.); BALADO V. LYKES BROS. S.S. CO., 179 F.2D 943 (C.A.2D
CIR.); WILLIAMS V. TIDE WATER ASSO.  OIL CO., 227 F.2D 791 (C.A. 9TH
CIR.).  CF. POPE & TALBOT, INC., V. HAWN, 346 U.S. 406.  SEE GILMORE
AND BLACK, THE LAW OF ADMIRALTY, SECS. 6-23 THROUGH 6-25. 

FN3  BECAUSE OF ITS NEGATIVE FINDINGS ON UNSEAWORTHINESS AND
NEGLIGENCE, THE JURY MADE NO FINDING ON WHETHER THE CONDITION OF THE
PORTHOLES AND DECK WAS THE PROXIMATE CAUSE OF PETITIONER'S FALL.  THE
JURY DID FIND THAT PETITIONER WAS NOT CONTRIBUTORILY NEGLIGENT, AND
THAT IT WOULD REQUIRE $32,500 TO COMPENSATE HIM FOR LOSS OF EARNINGS,
DIMINISHED EARNING CAPACITY, PAST AND FUTURE MEDICAL EXPENSES, AND PAIN
AND SUFFERING. 

FN4  "THERE SHALL BE COMMENCED AND PROSECUTED WITHIN TWO YEARS AFTER
THE CAUSE OF ACTION SHALL HAVE ACCRUED, AND NOT AFTERWARD, ALL ACTIONS
OR SUITS IN COURT OF THE FOLLOWING DESCRIPTION: 

     *         *         *         *         * 

"6.  ACTION FOR INJURY TO THE PERSON OF ANOTHER."  VERNON'S ANN. REV.
CIV. STAT., ART. 5526. 

FN5  THE QUESTION OF WHICH LIMITATION A STATE COURT MUST APPLY WAS
RESERVED IN ENGEL V. DAVENPORT, 271 U.S. 33, 36.  LOWER COURTS ARE
DIVIDED ON THE RELATED QUESTION OF WHICH PRINCIPLES GOVERN THE
LIMITATION OF ADMIRALTY ACTIONS ON THE LAW SIDE OF THE FEDERAL COURT. 
COMPARE HENDERSON V. CARGILL, INC., 128 F. SUPP. 119; APIKA V.
PENNSYLVANIA WHSG.  & SAFE DEPOSIT CO., 74 F. SUPP. 819, 101 F. SUPP.
575; UNTERSINGER V. KEYSTONE TANKSHIP CORP., 1948 A.M.C. 1899; WITH
BONAM V. SOUTHERN MENHADEN CORP., 284 F. 360; OROZ V. AMERICAN
PRESIDENT LINES, 154 F. SUPP. 241. 

FN6  SEE 46 U.S.C. SEC. 688, WHICH INCORPORATES THE STATUTE OF
LIMITATIONS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SEC.
56.  WHEN THE JONES ACT WAS ADOPTED IN 1920 THE PERIOD OF LIMITATIONS
FOR THE FELA WAS TWO YEARS.  SOME AUTHORITIES HAVE SUGGESTED THAT THE
ACT OF AUG. 11, 1939, 53 STAT. 1404, WHICH EXTENDED THE FELA PERIOD TO
THREE YEARS, DID NOT EFFECT A SIMILAR EXTENSION FOR THE JONES ACT. 
E.G., 3 BENEDICT, ADMIRALTY (6TH ED., KNAUTH, 1940), SEC. 469.  THE
CONTRARY MUST NOW BE TAKEN TO HAVE BEEN ESTABLISHED.  SEE COX V. ROTH,
348 U.S. 207, 210; POPE V. MCCRADY RODGERS CO., 164 F.2D 591, 592;
STREETER V. GREAT LAKES TRANSIT CORP., 49 F. SUPP. 466; GAHLING V.
COLABEE S.S. CO., 37 F. SUPP. 759; ROYLE V. STANDARD FRUIT & STEAMSHIP
CO., 269 APP. DIV. 762, 54 N.Y.S.2D 778. 

FN7  CF. LE GATE V. THE PANAMOLGA, 221 F.2D 689 (C.A.2D CIR.).  IN
THAT CASE, A LONGSHOREMAN BROUGHT A LIBEL CLAIMING DAMAGES FOR PERSONAL
INJURIES CAUSED BY NEGLIGENCE OR UNSEAWORTHINESS.  THE DISTRICT COURT
HELD BOTH CLAIMS BARRED BY LACHES.  HE WAS REVERSED AS TO
UNSEAWORTHINESS.  THE COURT OF APPEALS HELD THAT IF THE NEGLIGENCE
COUNT WERE THE ONLY BASIS OF LIABILITY THE DISTRICT COURT WOULD HAVE
BEEN CORRECT IN HOLDING IT BARRED BY LACHES.  HOWEVER, SINCE LIBELLANT
WAS GOING TO HAVE A TRIAL ON HIS UNSEAWORTHINESS CLAIM, THE COURT
THOUGHT IT A "HARSH RESULT" TO LIMIT THE SCOPE OF HIS SUIT.  THE CAUSE
WAS REMANDED FOR THE DISTRICT COURT TO RECONSIDER THE QUESTION OF
LACHES ON THE NEGLIGENCE COUNT AND RESPONDENT WAS GIVEN THE BURDEN OF
SHOWING PREJUDICE FROM INEXCUSABLE DELAY.  AND SEE CROSS V. ALLEN, 141
U.S. 528 (LACHES WILL NOT BAR SUIT IN EQUITY TO FORECLOSE MORTGAGE SO
LONG AS STATUTE OF LIMITATIONS HAS NOT RUN ON UNDERLYING DEBT); UNITED
STATES V. MACK, 295 U.S. 480, 489 ("LACHES WITHIN THE TERM OF THE
STATUTE OF LIMITATIONS IS NO DEFENSE AT LAW."). 

FN8  "SPECIAL ISSUE NO. 3 AND 14.  DO YOU FIND FROM A PREPONDERANCE
OF THE EVIDENCE THAT THE PORTHOLES OR WINDOWS IN QUESTION OR THE "DECK
ABOVE THE GALLEY" NOT BEING IN A WATERTIGHT CONDITION, IF YOU HAVE SO
FOUND IN ANSWER TO SPECIAL ISSUE NO. 2 OR NO. 13, MADE THE CREW SHIP IN
QUESTION 'UNSEAWORTHY,' AS DEFINED HEREIN? 

"YOU ARE INSTRUCTED THAT THE TERM 'UNSEAWORTHY,' AS USED HEREIN,
MEANS THAT A VESSEL WITH ITS APPLIANCES AND FITTINGS IS NOT REASONABLY
FIT FOR THE PURPOSES FOR WHICH IT IS BEING USED." 

FN9  THE JURORS WERE PUZZLED OVER THE MEANING OF THIS CHARGE.  A
SHORT TIME AFTER RETIRING TO THE JURYROOM THEY MADE THE FOLLOWING
INQUIRY OF THE TRIAL JUDGE:  "IN SPECIAL ISSUE 3 IS THE TERM
UNSEAWORTHY REFERRING TO THE VESSEL AS A WHOLE, OR THE THREE WINDOWS ON
THE PORT SIDE?"  PLAINTIFF THEREUPON REQUESTED THE TRIAL JUDGE TO
INSTRUCT THE JURY THAT THE TERM MEANT THAT "THE PORTHOLES AND THEIR
FITTINGS ARE NOT FIT FOR THE PURPOSE FOR WHICH SUCH PORTHOLES ARE
USED."  THE COURT DECLINED TO INSTRUCT THE JURY FURTHER AND ANSWERED
THEIR REQUEST BY REFERRING THEM TO THE DEFINITION IN HIS CHARGE,
PRESUMABLY THE ONE QUOTED IN NOTE 8, SUPRA. 

MR. JUSTICE BRENNAN, CONCURRING. 

WHILE I JOIN IN THE OPINION OF THE COURT, I BELIEVE IT PROPER TO ADD
A FEW WORDS BECAUSE OF THE SUGGESTION IN THE DISSENT THAT THE COURT
INTIMATES THAT THE STATE STATUTE WOULD BE APPLIED WERE IT LONGER.  I
FIND NO SUCH INDICATION IN THE COURT'S OPINION.  INDEED, THE THEORY OF
THE COURT PRECLUDES CONSIDERATION OF THAT PROBLEM.  THE SINGLE QUESTION
FOR DECISION IS WHETHER THE TEXAS TWO-YEAR STATUTE OF LIMITATIONS WAS
CORRECTLY APPLIED TO BAR PETITIONER'S CLAIM FOR DAMAGES BASED ON THE
UNSEAWORTHINESS OF HIS EMPLOYER'S VESSEL.  MORE GENERALLY, THE QUESTION
IS WHETHER, IN AN ACTION IN A STATE COURT TO ENFORCE THE SEAMAN'S
FEDERALLY CREATED RIGHT TO RECOVER FOR UNSEAWORTHINESS, THE PERIOD OF
LIMITATIONS FOR THAT ACTION IS GOVERNED BY STATE OR FEDERAL LAW.    IN
RESOLVING THIS QUESTION THE COURT MUST TOUCH UPON THE DELICATE PROBLEMS
OF FEDERALISM INEVITABLE IN THE WORKING OUT OF A VIABLE SCHEME FOR
ENFORCING FEDERALLY CREATED RIGHTS IN STATE COURTS.  CF. TESTA V. KATT,
330 U.S. 386.  WHERE FEDERAL STATUTES, WHICH CREATE FEDERAL RIGHTS OF
ACTION, DO NOT INCLUDE A PERIOD OF LIMITATIONS, IT HAS BEEN THE
PRACTICE OF STATE AND FEDERAL COURTS TO APPLY STATE STATUTES OF
LIMITATIONS.  SEE CAMPBELL V. HAVERHILL, 155 U.S. 610, 616; COPE V.
ANDERSON, 331 U.S. 461.  ON THE OTHER HAND, WHERE A FEDERAL STATUTE
ESTABLISHES A LIMITATION PERIOD FOR THE ENFORCEMENT OF FEDERAL RIGHTS,
WHICH PERIOD IS AN INTEGRAL PART OF THE RIGHT CREATED, THAT LIMITATION
MUST BE APPLIED IN ACTIONS BROUGHT IN STATE COURTS, WHETHER THE STATE
STATUTE BE LONGER, ATLANTIC COAST LINE R. CO. V. BURNETTE, 239 U.S.
199, OR SHORTER, ENGEL V. DAVENPORT, 271 U.S. 33.  THIS CASE HAS TWO
FACTORS WHICH MUST BE ALIGNED WITH THE PATTERN OF THOSE DECISIONS. 
FIRST, WE DEAL WITH JUDICIALLY CREATED MARITIME RIGHTS, POPE & TALBOT,
INC., V. HAWN, 346 U.S. 406; SECOND, WE DO NOT HAVE AN ACT OF CONGRESS
ESTABLISHING A FIXED PERIOD OF LIMITATIONS FOR ENFORCEMENT OF THE
RIGHT. 

AS TO THE FIRST FACTOR, THAT THE REMEDY FOR UNSEAWORTHINESS IS
JUDICIALLY RATHER THAN LEGISLATIVELY CREATED, IT CANNOT FAIRLY BE
CONSIDERED PERTINENT TO THE PROBLEM OF WHAT PERIOD OF LIMITATIONS
APPLIES IN STATE COURTS.  AS TO THE SECOND, I DO NOT BELIEVE THAT THE
ABSENCE OF SPECIFIC DIRECTIONS FROM CONGRESS LEADS NECESSARILY TO THE
RESULT THAT STATE STATUTES OF LIMITATIONS SHOULD APPLY IN CASES OF THIS
SORT.  THE REASON IS THAT THE CONSIDERATIONS WHICH IN CAMPBELL V.
HAVERHILL, SUPRA, AND COPE V. ANDERSON, SUPRA, PROMPTED RESORT TO THE
STATE STATUTES DO NOT APPLY AT ALL HERE.  THOSE CASES REPRESENTED
INTENSELY PRACTICAL SOLUTIONS TO A PRACTICAL PROBLEM IN THE
ADMINISTRATION OF JUSTICE.  IN THE ABSENCE OF ANY COMPARABLE FEDERAL
STATUTE OF LIMITATIONS WHICH MIGHT BE APPLIED, THE COURT HAD FOUR
CHOICES: (1) NO PERIOD OF LIMITATIONS AT ALL; (2) AN ARBITRARY PERIOD
APPLICABLE IN ALL LIKE CASES; (3) THE FLEXIBLE BUT UNCERTAIN DOCTRINE
OF LACHES; AND (4) STATE STATUTES OF LIMITATIONS.  THE STATE STATUTES
WERE CHOSEN BY DEFAULT. 

NO SUCH DEFAULT IS NECESSARY IN THIS CASE SINCE THE COURT CAN LOOK
ELSEWHERE FOR THE MEASURE OF THE SEAMAN'S FEDERAL RIGHT TO RECOVER FOR
UNSEAWORTHINESS.  JUST AS EQUITY FOLLOWS THE LAW IN APPLYING, AS A
ROUGH MEASURE OF LIMITATIONS, THE PERIOD WHICH WOULD BAR A SIMILAR
ACTION AT LAW, SEE RUSSELL V. TODD, 309 U.S. 280, 287, I THINK THAT THE
MARITIME CAUSE OF ACTION FOR UNSEAWORTHINESS COULD BE MEASURED BY THE
ANALOGOUS ACTION AT LAW FOR NEGLIGENCE UNDER THE JONES ACT, 46 U.S.C.
SEC. 688.  THIS REFERENCE SEEMS ESPECIALLY APPROPRIATE SINCE THE
SEAMAN'S REMEDY FOR UNSEAWORTHINESS UNDER THE GENERAL MARITIME LAW AND
HIS REMEDY FOR NEGLIGENCE UNDER THE JONES ACT ARE BUT TWO ASPECTS OF A
SINGLE CAUSE OF ACTION.  BALTIMORE S.S. CO. V. PHILLIPS, 274 U.S. 316. 

IT THUS SEEMS TO ME THAT THE THREE-YEAR LIMITATION ON THE JONES ACT
REMEDY, 45 U.S.C. SEC. 56, IS THE READY AND LOGICAL SOURCE TO DRAW UPON
FOR DETERMINING THE PERIOD WITHIN WHICH THIS FEDERAL RIGHT MAY BE
ENFORCED.  THIS PERIOD SHOULD BE APPLIED IN AN ACTION FOR
UNSEAWORTHINESS BROUGHT IN A STATE COURT, JUST AS IT WOULD BE APPLIED
BY THE STATE COURTS IN ACTIONS BROUGHT UNDER THE JONES ACT, ENGEL V.
DAVENPORT, SUPRA.  SUCH A RESULT WOULD BE IN HARMONY WITH THE PRACTICE
IN FEDERAL ADMIRALTY COURTS OF APPLYING STATE STATUTES OF LIMITATIONS
IN ENFORCING STATE-CREATED RIGHTS.  WESTERN FUEL CO. V. GARCIA, 257
U.S. 233.  THE ALTERNATIVE OF SUBJECTING THE PARTIES' RIGHTS TO THE
VARIANT STATE STATUTES OF LIMITATIONS AND THE CONSEQUENT UNCERTAINTY OF
LEGAL OBLIGATION WOULD INJECT AN UNNECESSARILY SPORTING ELEMENT INTO
THE AFFAIRS OF MEN.  CF. GUARANTY TRUST CO. V. YORK, 326 U.S. 99.  THE
MISCHIEF TO BE AVOIDED IS THE POSSIBILITY OF SHOPPING FOR THE FORUM
WITH THE MOST FAVORABLE PERIOD OF LIMITATIONS.  IN ACTIONS ARISING AT
SEA, FREQUENTLY BEYOND THE TERRITORIAL BOUNDS OF ANY STATE, NORMAL
CHOICE-OF-LAW DOCTRINES ARE LIKELY TO PROVE INADEQUATE TO THE TASK OF
SUPPLYING CERTAINTY AND PREDICTABILITY. 

SINCE WE ARE NOT ADVISED THAT THE TEXAS STATUTE OF LIMITATIONS IS
ANYTHING MORE THAN A STATUTE OF REPOSE, AND SINCE APPLICATION OF THE
STATE STATUTE OF LIMITATIONS WOULD BE DISRUPTIVE OF THE DESIRED
UNIFORMITY OF ENFORCEMENT OF MARITIME RIGHTS, SOUTHERN PACIFIC CO. V.
JENSEN, 244 U.S. 205; GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239, THE
STATE STATUTE OF LIMITATIONS CANNOT BE APPLIED TO BAR PETITIONER'S
CLAIM FOR UNSEAWORTHINESS. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER AND MR.
JUSTICE HARLAN JOIN, DISSENTING. 

WITH ALL RESPECT, I FEEL COMPELLED TO EXPRESS MY DISAGREEMENT WITH
THE COURT'S HOLDING "THAT WHERE AN ACTION FOR UNSEAWORTHINESS IS
COMBINED WITH AN ACTION UNDER THE JONES ACT A COURT CANNOT APPLY TO THE
FORMER A SHORTER PERIOD OF LIMITATIONS THAN CONGRESS HAS PRESCRIBED FOR
THE LATTER." 

ALTHOUGH BOTH ARE FEDERAL LAWS, EACH CREATES A SEPARATE AND
INDEPENDENT CAUSE OF ACTION FOR CONDUCT NOT COVERED OR MADE REDRESSABLE
BY THE OTHER, THOUGH BOTH ARE DESIGNED FOR THE ONE PURPOSE OF
AUTHORIZING, WITHIN THEIR RESPECTIVE TERMS, RECOVERY OF DAMAGES BY A
SEAMAN FOR A BODILY INJURY SUFFERED IN THE COURSE OF HIS EMPLOYMENT. 
UNDER THE MARITIME LAW OF UNSEAWORTHINESS THE OWNER WARRANTS THE
VESSEL, ITS APPLIANCES AND GEAR TO BE FREE OF DEFECTS, AND IS LIABLE TO
PAY DAMAGES TO A SEAMAN FOR AN INJURY OCCASIONED BY A BREACH OF THE
WARRANTY.  THIS IS SO EVEN THOUGH "NEGLIGENCE OF THE OFFICERS OF THE
VESSEL CONTRIBUTED TO ITS UNSEAWORTHINESS FOR THEIR NEGLIGENCE IS NOT
SUFFICIENT TO INSULATE THE OWNER FROM LIABILITY FOR  ...  FAILURE TO
FURNISH SEAWORTHY APPLIANCES ...  ."  MAHNICH V. SOUTHERN STEAMSHIP
CO., 321 U.S. 96, 100-101.  BUT "BEFORE THE JONES ACT THE OWNER WAS, IN
OTHER RESPECTS, NOT RESPONSIBLE FOR INJURIES TO A SEAMAN CAUSED BY THE
NEGLIGENCE OF OFFICERS OR MEMBERS OF THE CREW."  ID., AT 101. 

TO FILL THE GAP IN THE OWNER'S LIABILITY, BY MAKING HIM LIABLE FOR
THE OPERATING NEGLIGENCE OF OFFICERS AND MEMBERS OF THE CREW, CONGRESS
PASSED THE JONES ACT IN 1920, WHICH, IN PERTINENT PART, PROVIDES: 

"ANY SEAMAN WHO SHALL SUFFER PERSONAL INJURY IN THE COURSE OF HIS
EMPLOYMENT MAY, AT HIS ELECTION, MAINTAIN AN ACTION FOR DAMAGES AT LAW,
WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL STATUTES OF THE
UNITED STATES MODIFYING OR EXTENDING THE COMMON-LAW RIGHT OR REMEDY IN
CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES SHALL APPLY  ... ."  46
U.S.C. SEC. 688. 

THAT ACT, THUS, INCORPORATED THE PROVISIONS OF THE FEDERAL EMPLOYERS'
LIABILITY ACT, (FN1) SEC.  1 OF WHICH (FN2) CREATES A LIABILITY UPON
THE CARRIER FOR "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  ...  BOATS, WHARVES, OR OTHER EQUIPMENT", AND SEC.
6 (FN3) PROVIDES, IN PERTINENT PART, THAT "NO ACTION SHALL BE
MAINTAINED UNDER THIS CHAPTER UNLESS COMMENCED WITHIN THREE YEARS FROM
THE DAY THE CAUSE OF ACTION ACCRUED." 

THIS MAKES CLEAR THAT THE MARITIME LAW OF UNSEAWORTHINESS IMPOSES AN
UNQUALIFIED LIABILITY UPON THE OWNER TO PAY DAMAGES TO A SEAMAN FOR
INJURIES SUSTAINED THROUGH THE OWNER'S FAILURE TO KEEP THE VESSEL, ITS
APPLIANCES AND GEAR IN THAT SAFE AND SOUND CONDITION COLLOQUIALLY
CALLED "SHIP-SHAPE," AND THAT THE JONES ACT, ON THE OTHER HAND,
SUPPLEMENTS THE MARITIME LAW OF UNSEAWORTHINESS BY IMPOSING A LIABILITY
IN TORT UPON THE OWNER TO PAY DAMAGES TO A SEAMAN INJURED BY NEGLIGENCE
OF THE OFFICERS OR MEMBERS OF THE CREW IN THE OPERATION OF THE VESSEL,
ITS APPLIANCES AND GEAR. 

BY THE JONES ACT, THEN, CONGRESS CREATED A NEW CAUSE OF ACTION, NOT
THEN KNOWN TO MARITIME LAW, FOR DAMAGES FOR A BODILY INJURY TO A SEAMAN
CAUSED BY "THE NEGLIGENCE OF ANY OF THE OFFICERS, AGENTS, OR EMPLOYEES
OF SUCH CARRIER," AND REQUIRED ANY SUIT THEREUNDER TO BE BROUGHT WITHIN
THREE YEARS.  BUT CONGRESS HAS FIXED NO LIMITATION UPON THE TIME WITHIN
WHICH AN ACTION FOR DAMAGES FOR UNSEAWORTHINESS MUST BE COMMENCED. 

NUMEROUS DECISIONS OF THIS COURT HAVE ESTABLISHED THAT, IN A SUIT TO
ENFORCE A FEDERALLY CREATED RIGHT WHICH IS SILENT ON THE MATTER OF
LIMITATIONS, THE APPLICABLE PERIOD OF LIMITATIONS IS THAT PRESCRIBED BY
THE LAW OF THE STATE IN WHICH THE ACTION IS BROUGHT.  COPE V. ANDERSON,
331 U.S. 461, 463; HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395; RAWLINGS
V. RAY, 312 U.S. 96, 97; CHATTANOOGA FOUNDRY V. ATLANTA, 203 U.S. 390,
397; MCCLAINE V. RANKIN, 197 U.S. 154, 158, AND BRADY V. DALY, 175 U.S.
148, 158.  THE COURT'S OPINION, HOLDING THAT, WHERE AN ACTION FOR
UNSEAWORTHINESS IS COMBINED WITH AN ACTION UNDER THE JONES ACT, A COURT
CANNOT APPLY TO THE FORMER "A SHORTER PERIOD OF LIMITATIONS" THAN
CONGRESS HAS PRESCRIBED FOR THE LATTER, RECOGNIZES THIS RULE BUT
PERMITS IT TO BE APPLIED ONLY TO AN UNSEAWORTHINESS ACTION WHICH IS NOT
CONJOINED WITH A COUNT FOR NEGLIGENCE UNDER THE JONES ACT, OR TO AN
UNSEAWORTHINESS ACTION WHICH IS CONJOINED WITH A COUNT FOR NEGLIGENCE
UNDER THE JONES ACT IF BROUGHT IN A STATE WHOSE LAWS PROVIDE AN EQUAL
OR LONGER PERIOD THAN CONGRESS HAS PROVIDED FOR THE COMMENCEMENT OF A
NEGLIGENCE ACTION UNDER THE JONES ACT.  THIS SEEMS QUITE INCONSISTENT. 
WE KNOW THAT MANY STATES PROVIDE A LONGER PERIOD, AND OTHERS A SHORTER
PERIOD, FOR THE COMMENCEMENT OF A SUIT FOR UNSEAWORTHINESS THAN IS
PROVIDED BY CONGRESS FOR THE COMMENCEMENT OF AN ACTION FOR DAMAGES FOR
NEGLIGENCE UNDER THE JONES ACT.  I CANNOT ESCAPE THE CONVICTION THAT
THE LONG-ESTABLISHED RULE, EXPRESSIVE OF THE MEANING OF THE SILENCE OF
CONGRESS IN FIXING A STATUTE OF LIMITATIONS, SHOULD BE ENFORCED IN ALL
UNSEAWORTHINESS CASES OR IN NONE.  I AM THEREFORE UNABLE TO SEE WHY, AS
THE COURT ARGUES, "A TIME LIMITATION ON THE UNSEAWORTHINESS CLAIM
EFFECTS IN SUBSTANCE A SIMILAR LIMITATION ON THE RIGHT OF ACTION UNDER
THE JONES ACT" OR, TRANSPOSING - AS I THINK MORE PROPER - THE NAMES OF
THE LAWS AS USED IN THE COURT'S ARGUMENT, WHY "A TIME LIMITATION ON THE
JONES ACT CLAIM EFFECTS IN SUBSTANCE A SIMILAR LIMITATION ON THE RIGHT
OF ACTION FOR UNSEAWORTHINESS," I.E., EXTENDS IT TO THREE YEARS WHEN,
AS HERE, THE APPLICABLE STATE STATUTE PRESCRIBES A LIMITATION OF TWO
YEARS. 

IT IS QUITE TRUE, AS THE COURT POINTS OUT, THAT BALTIMORE STEAMSHIP
CO. V. PHILLIPS, 274 U.S. 316, HOLDS THAT AN ACTION FOR DAMAGES FOR
UNSEAWORTHINESS AND AN ACTION FOR DAMAGES FOR NEGLIGENCE UNDER THE
JONES ACT MUST BE CONJOINED IN THE SAME SUIT INASMUCH AS THEY BOTH LOOK
TO REDRESS OF THE SAME BODILY INJURY, AND THAT OTHERWISE A FINAL
JUDGMENT ON THE ONE WOULD BAR AN ACTION ON THE OTHER UNDER PRINCIPLES
OF RES JUDICATA.  BUT I THINK THIS IS NOT TO SAY, AS THE COURT ARGUES,
THAT A TIME LIMITATION UPON THE ONE "EFFECTS IN SUBSTANCE A SIMILAR
LIMITATION" UPON THE OTHER.  SURELY A SEAMAN MAY NOT, IN SUCH A SUIT,
MAINTAIN A COUNT FOR UNSEAWORTHINESS WHICH IS BARRED BY THE APPLICABLE
LIMITATIONS OF THE STATE, ANY MORE THAN HE MAY MAINTAIN A COUNT FOR
DAMAGES FOR NEGLIGENCE UNDER THE JONES ACT WHICH IS BARRED BY THE
APPLICABLE THREE-YEAR FEDERAL STATUTE.  IT WOULD SEEM JUST AS CLEAR
THAT HE MAY MAINTAIN BOTH COUNTS IN THE SAME SUIT ONLY IF NEITHER IS
BARRED BY LIMITATIONS AS IT IS THAT HE COULD NOT MAINTAIN AN ACTION ON
EITHER COUNT IF BOTH WERE SO BARRED. 

I, THEREFORE, BELIEVE THAT THE COURT IS IN ERROR IN HOLDING THAT
"WHERE AN ACTION FOR UNSEAWORTHINESS IS COMBINED WITH AN ACTION UNDER
THE JONES ACT A COURT CANNOT APPLY TO THE FORMER A SHORTER PERIOD OF
LIMITATIONS THAN CONGRESS HAS PRESCRIBED FOR THE LATTER", FOR, AS
OBSERVED, A STATE COURT, IN AN UNSEAWORTHINESS ACTION, IS BOUND TO
APPLY THE PERIOD OF LIMITATIONS PRESCRIBED BY THE LAW OF THE STATE IN
WHICH IT SITS, NOT ONLY IN INSTANCES WHERE THAT PERIOD IS EQUAL TO OR
LONGER, BUT ALSO WHERE IT IS SHORTER, THAN THE THREE-YEAR PERIOD
PRESCRIBED BY CONGRESS FOR COMMENCING A NEGLIGENCE ACTION UNDER THE
JONES ACT - WHICH ACT, I THINK, IS QUITE IMMATERIAL TO THE QUESTION. 
HOWEVER DESIRABLE COTERMINOUS AND UNIFORMLY APPLICABLE PERIODS OF
LIMITATIONS MAY BE IN THESE TWO COORDINATE FEDERAL LAWS, ACCOMPLISHMENT
OF THAT CHANGE IN THE LAW IS NOT PROPERLY FOR US, BUT FOR CONGRESS. 

HERE PETITIONER JOINED IN HIS SUIT, BROUGHT IN A TEXAS COURT, A COUNT
FOR UNSEAWORTHINESS WITH A COUNT FOR NEGLIGENCE UNDER THE JONES ACT,
BUT HE DID NOT BRING THE SUIT WITHIN THE TWO-YEAR PERIOD OF LIMITATIONS
APPLICABLE TO UNSEAWORTHINESS ACTIONS AS PRESCRIBED BY THE LAW OF THAT
STATE.  THEREFORE, I THINK THE TEXAS COURT OF CIVIL APPEALS WAS CORRECT
IN HOLDING HIS UNSEAWORTHINESS COUNT TO BE BARRED FOR THAT REASON, AND
I WOULD AFFIRM ITS JUDGMENT. 

FN1  45 U.S.C. SEC. 51 ET SEQ. 

FN2  45 U.S.C. SEC. 51. 

FN3  45 U.S.C. SEC. 56. 
..END :
























HANSON V. DENCKLA 357 U.S. 235 


NO. 107.  ARGUED MARCH 10-11, 1958 - DECIDED JUNE 23, 1958* - 100 SO. 2D
378, REVERSED AND CAUSE REMANDED - DEL. - , 128 A.2D 819, AFFIRMED. 

*TOGETHER WITH NO. 117, LEWIS ET AL. V. HANSON, EXECUTRIX AND
TRUSTEE, ET AL., ON CERTIORARI TO THE SUPREME COURT OF DELAWARE. 


WHILE DOMICILED IN PENNSYLVANIA, A WOMAN EXECUTED IN DELAWARE A
REVOCABLE DEED OF TRUST MAKING A DELAWARE TRUST COMPANY TRUSTEE OF
CERTAIN SECURITIES, RESERVING THE INCOME FOR LIFE AND PROVIDING THAT
THE REMAINDER SHOULD BE PAID TO SUCH PARTIES AS SHE SHOULD APPOINT BY
INTER VIVOS OR TESTAMENTARY INSTRUMENT.  LATER, AFTER BECOMING
DOMICILED IN FLORIDA, WHERE SHE REMAINED UNTIL HER DEATH, SHE EXECUTED
(1) AN INTER VIVOS INSTRUMENT APPOINTING CERTAIN BENEFICIARIES TO
RECEIVE $400,000 OF THE TRUST PROPERTY, AND (2) A WILL CONTAINING A
RESIDUARY CLAUSE COVERING, INTER ALIA, "ALL PROPERTY, RIGHTS AND
INTEREST OVER WHICH I MAY HAVE POWER OF APPOINTMENT WHICH PRIOR TO MY
DEATH HAS NOT BEEN EFFECTIVELY EXERCISED."  IN A PROCEEDING IN WHICH
THE DELAWARE TRUST COMPANY DID NOT APPEAR AND WAS GIVEN NOTICE ONLY BY
MAIL AND PUBLICATION, A FLORIDA STATE COURT HELD THAT THE TRUST AND
POWER OF APPOINTMENT WERE INEFFECTIVE UNDER FLORIDA LAW AND THAT THE
$400,000 PASSED UNDER THE RESIDUARY CLAUSE OF THE WILL.  THIS RULING
WAS SUSTAINED BY THE SUPREME COURT OF FLORIDA, WHICH ALSO HELD THAT THE
FLORIDA COURT HAD JURISDICTION OVER THE NONRESIDENT TRUST COMPANY, AND
AN APPEAL WAS TAKEN TO THIS COURT.  A DELAWARE COURT WITH PERSONAL
JURISDICTION OVER THE TRUST COMPANY SUSTAINED THE TRUST AND INTER VIVOS
APPOINTMENT AND HELD THAT THE PARTIES DESIGNATED THEREIN WERE ENTITLED
TO THE $400,000.  THIS DECISION WAS SUSTAINED BY THE SUPREME COURT OF
DELAWARE, AND ITS JUDGMENT WAS BROUGHT HERE ON CERTIORARI.  BOTH
DELAWARE COURTS DENIED MOTIONS TO GIVE FULL FAITH AND CREDIT TO THE
FLORIDA DECREE.  HELD: 

1.  THIS COURT NEED NOT DETERMINE WHETHER FLORIDA WAS BOUND TO GIVE
FULL FAITH AND CREDIT TO THE DELAWARE DECREE, BECAUSE THAT QUESTION WAS
NOT SEASONABLY PRESENTED TO THE FLORIDA COURT.  PP. 243-244. 

2.  THIS COURT IS WITHOUT JURISDICTION OF THE FLORIDA APPEAL, AND IT
IS DISMISSED; BUT, TREATING THE PAPERS WHEREON APPEAL WAS TAKEN AS A
PETITION FOR CERTIORARI, 28 U.S.C. SEC.  2103, CERTIORARI IS GRANTED. 
P. 244. 

3.  APPELLANTS IN THE FLORIDA CASE HAVE STANDING TO CHALLENGE THE
JURISDICTION OF THE FLORIDA COURT OVER THE NONRESIDENT TRUST COMPANY
WHICH MADE NO APPEARANCE, BECAUSE THEY HAVE A "DIRECT AND SUBSTANTIAL
PERSONAL INTEREST IN THE OUTCOME" OF THE LITIGATION, CHICAGO V.
ATCHISON, T.&S.F.R. CO., ANTE, P. 77, AND THE TRUSTEE WAS AN
INDISPENSABLE PARTY WITHOUT WHOM A FLORIDA COURT HAD NO POWER TO
ADJUDICATE THE CONTROVERSY.  PP. 244-245. 

4.  THE FLORIDA COURT DID NOT HAVE IN REM JURISDICTION OVER THE
CORPUS OF THE TRUST OR PERSONAL JURISDICTION OVER THE TRUST COMPANY. 
WITHOUT SUCH JURISDICTION IT HAD NO POWER UNDER FLORIDA LAW TO PASS ON
THE VALIDITY OF THE TRUST.  THEREFORE, ITS DECREE IS VOID UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND IT IS REVERSED, NOT
ONLY AS TO THE TRUST COMPANY BUT ALSO AS TO THE INDIVIDUALS OVER WHOM
IT DID HAVE JURISDICTION.  PP. 245-254. 

(A)  THOUGH THE PROPERTY INVOLVED WAS INTANGIBLE PERSONAL PROPERTY,
THE SETTLOR WAS DOMICILED IN FLORIDA AT THE TIME OF HER DEATH, AND
FLORIDA HAD JURISDICTION OVER THE PROBATE AND CONSTRUCTION OF HER WILL,
IT HAD NO IN REM JURISDICTION OVER THE TRUST ASSETS, AND ITS JUDGMENT
IS INVALID INSOFAR AS IT RESTS ON THE BASIS OF IN REM JURISDICTION. 
PP. 246-250. 

(B)  THE TRUST COMPANY DID NOT HAVE SUFFICIENT AFFILIATION WITH
FLORIDA TO EMPOWER THE FLORIDA COURTS TO EXERCISE PERSONAL JURISDICTION
OVER IT.  MCGEE V. INTERNATIONAL LIFE INS.  CO., 355 U.S. 220,
DISTINGUISHED.  PP. 250-253. 

(C)  SINCE IT IS THE VALIDITY OF THE TRUST AGREEMENT, NOT THE
EXERCISE OF THE POWER OF APPOINTMENT, THAT IS AT ISSUE HERE, THE
EXECUTION IN FLORIDA OF THE POWER OF APPOINTMENT DOES NOT GIVE FLORIDA
A SUBSTANTIAL CONNECTION WITH THE CONTRACT ON WHICH THE SUIT IS BASED
NOR JUSTIFY THE EXERCISE OF PERSONAL JURISDICTION OVER THE NONRESIDENT
TRUSTEE.  PP. 253-254. 

(D)  THAT THE SETTLOR AND MOST OF THE APPOINTEES AND BENEFICIARIES
WERE DOMICILED IN FLORIDA DOES NOT GIVE FLORIDA PERSONAL JURISDICTION
OVER THIS NONRESIDENT TRUSTEE.  P. 254. 

(E)  BECAUSE THE FLORIDA SUPREME COURT HAS REPEATEDLY HELD THAT A
TRUSTEE IS AN INDISPENSABLE PARTY WITHOUT WHOM A FLORIDA COURT HAS NO
POWER TO ADJUDICATE CONTROVERSIES AFFECTING THE VALIDITY OF A TRUST
(THOUGH IT DID NOT RULE ON THAT POINT IN THIS CASE), THE FLORIDA
JUDGMENT MUST BE REVERSED, NOT ONLY AS TO THE NONRESIDENT TRUSTEES BUT
ALSO AS TO THE APPELLANTS OVER WHOM THE FLORIDA COURT ADMITTEDLY HAD
JURISDICTION.  PP. 254-255. 

5.  DELAWARE WAS UNDER NO OBLIGATION TO GIVE FULL FAITH AND CREDIT TO
THE INVALID FLORIDA JUDGMENT, AND THE DELAWARE JUDGMENT IS AFFIRMED. 
PP. 255-256. 

(A)  SINCE DELAWARE WAS ENTITLED TO CONCLUDE THAT FLORIDA LAW MADE
THE TRUST COMPANY AN INDISPENSABLE PARTY, IT WAS UNDER NO OBLIGATION TO
GIVE THE FLORIDA JUDGMENT ANY FAITH AND CREDIT - EVEN AGAINST PARTIES
OVER WHOM FLORIDA'S JURISDICTION WAS UNQUESTIONED.  P. 255. 

(B)  THE DELAWARE CASE SHOULD NOT BE HELD WHILE THE FLORIDA CASE IS
REMANDED TO GIVE THE FLORIDA COURT AN OPPORTUNITY TO DETERMINE WHETHER
THE TRUSTEE IS AN INDISPENSABLE PARTY IN THE CIRCUMSTANCES OF THIS
CASE, SINCE THERE IS AMPLE FLORIDA AUTHORITY FROM WHICH THE ANSWER TO
THAT QUESTION MAY BE DETERMINED.  PP. 255-256. 

HANSON, EXECUTRIX, ET AL. V. DENCKLA ET AL. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY CONCERNS THE RIGHT TO $400,000, PART OF THE CORPUS
OF A TRUST ESTABLISHED IN DELAWARE BY A SETTLOR WHO LATER BECAME
DOMICILED IN FLORIDA.  ONE GROUP OF CLAIMANTS, "LEGATEES," URGE THAT
THIS PROPERTY PASSED UNDER THE RESIDUARY CLAUSE OF THE SETTLOR'S WILL,
WHICH WAS ADMITTED TO PROBATE IN FLORIDA.  THE FLORIDA COURTS HAVE
SUSTAINED THIS POSITION.  100 SO. 2D 378.  OTHER CLAIMANTS,
"APPOINTEES" AND "BENEFICIARIES," CONTEND THAT THE PROPERTY PASSED
PURSUANT TO THE SETTLOR'S EXERCISE OF THE INTER VIVOS POWER OF
APPOINTMENT CREATED IN THE DEED OF TRUST.  THE DELAWARE COURTS ADOPTED
THIS POSITION AND REFUSED TO ACCORD FULL FAITH AND CREDIT TO THE
FLORIDA DETERMINATION BECAUSE THE FLORIDA COURT HAD NOT ACQUIRED
JURISDICTION OVER AN INDISPENSABLE PARTY, THE DELAWARE TRUSTEE.  - DEL.
- , 128 A.2D 819.  WE POSTPONED THE QUESTION OF JURISDICTION IN THE
FLORIDA APPEAL, NO. 107, 354 U.S. 919, AND GRANTED CERTIORARI TO THE
DELAWARE SUPREME COURT, NO. 117, 354 U.S. 920. 

THE TRUST WHOSE VALIDITY IS CONTESTED HERE WAS CREATED IN 1935.  DORA
BROWNING DONNER, THEN A DOMICILIARY OF PENNSYLVANIA, EXECUTED A TRUST
INSTRUMENT IN DELAWARE NAMING THE WILMINGTON TRUST CO., OF WILMINGTON,
DELAWARE, AS TRUSTEE.  THE CORPUS WAS COMPOSED OF SECURITIES.  MRS.
DONNER RESERVED THE INCOME FOR LIFE, AND STATED THAT THE REMAINDER
SHOULD BE PAID TO SUCH PERSONS OR UPON SUCH TRUSTS AS SHE SHOULD
APPOINT BY INTER VIVOS OR TESTAMENTARY INSTRUMENT.  THE TRUST AGREEMENT
PROVIDED THAT MRS. DONNER COULD CHANGE THE TRUSTEE, AND THAT SHE COULD
AMEND, ALTER OR REVOKE THE AGREEMENT AT ANY TIME.  A MEASURE OF CONTROL
OVER TRUST ADMINISTRATION WAS ASSURED BY THE PROVISION THAT ONLY WITH
THE CONSENT OF A TRUST "ADVISOR" APPOINTED BY THE SETTLOR COULD THE
TRUSTEE (1) SELL TRUST ASSETS, (2) MAKE INVESTMENTS, AND (3)
PARTICIPATE IN ANY PLAN, PROCEEDING, REORGANIZATION OR MERGER INVOLVING
SECURITIES HELD IN THE TRUST.  A FEW DAYS AFTER THE TRUST WAS
ESTABLISHED MRS. DONNER EXERCISED HER POWER OF APPOINTMENT.  THAT
APPOINTMENT WAS REPLACED BY ANOTHER IN 1939.  THEREAFTER SHE LEFT
PENNSYLVANIA, AND IN 1944 BECAME DOMICILED IN FLORIDA, WHERE SHE
REMAINED UNTIL HER DEATH IN 1952.  MRS. DONNER'S WILL WAS EXECUTED DEC.
3, 1949.  ON THAT SAME DAY SHE EXECUTED THE INTER VIVOS POWER OF
APPOINTMENT WHOSE TERMS ARE AT ISSUE HERE.  (FN1)  AFTER MAKING MODEST
APPOINTMENTS IN FAVOR OF A HOSPITAL AND CERTAIN FAMILY RETAINERS (THE
"APPOINTEES"), (FN2) SHE APPOINTED THE SUM OF $200,000 TO EACH OF TWO
TRUSTS PREVIOUSLY ESTABLISHED WITH ANOTHER DELAWARE TRUSTEE, THE
DELAWARE TRUST CO. THE BALANCE OF THE TRUST CORPUS, OVER $1,000,000 AT
THE DATE OF HER DEATH, WAS APPOINTED TO HER EXECUTRIX.  THAT AMOUNT
PASSED UNDER THE RESIDUARY CLAUSE OF HER WILL AND IS NOT AT ISSUE
HERE. 

THE TWO TRUSTS WITH THE DELAWARE TRUST CO. WERE CREATED IN 1948 BY
MRS. DONNER'S DAUGHTER, ELIZABETH DONNER HANSON, FOR THE BENEFIT OF
ELIZABETH'S CHILDREN, DONNER HANSON AND JOSEPH DONNER WINSOR.  IN
IDENTICAL TERMS THEY PROVIDE THAT THE INCOME NOT REQUIRED FOR THE
BENEFICIARY'S SUPPORT SHOULD BE ACCUMULATED TO AGE 25, WHEN THE
BENEFICIARY SHOULD BE PAID 1/4 OF THE CORPUS AND RECEIVE THE INCOME
FROM THE BALANCE FOR LIFE.  UPON THE DEATH OF THE BENEFICIARY THE
REMAINDER WAS TO GO TO SUCH OF THE BENEFICIARY'S ISSUE OR ELIZABETH
DONNER HANSON'S ISSUE AS THE BENEFICIARY SHOULD APPOINT BY INTER VIVOS
OR TESTAMENTARY INSTRUMENT; IN DEFAULT OF APPOINTMENT TO THE
BENEFICIARY'S ISSUE ALIVE AT THE TIME OF HIS DEATH, AND IF NONE TO THE
ISSUE OF ELIZABETH DONNER HANSON. 

MRS. DONNER DIED NOV. 20, 1952.  HER WILL, WHICH WAS ADMITTED TO
PROBATE IN FLORIDA, NAMED ELIZABETH DONNER HANSON AS EXECUTRIX.  SHE
WAS INSTRUCTED TO PAY ALL DEBTS AND TAXES, INCLUDING ANY WHICH MIGHT BE
PAYABLE BY REASON OF THE PROPERTY APPOINTED UNDER THE POWER OF
APPOINTMENT IN THE TRUST AGREEMENT WITH THE WILMINGTON TRUST CO. AFTER
DISPOSING OF PERSONAL AND HOUSEHOLD EFFECTS, MRS. DONNER'S WILL
DIRECTED THAT THE BALANCE OF HER PROPERTY (THE $1,000,000 APPOINTED
FROM THE DELAWARE TRUST) BE PAID IN EQUAL PARTS TO TWO TRUSTS FOR THE
BENEFIT OF HER DAUGHTERS KATHERINE N.R. DENCKLA AND DOROTHY B.R.
STEWART. 

THIS CONTROVERSY GROWS OUT OF THE RESIDUARY CLAUSE THAT CREATED THE
LAST-MENTIONED TRUSTS.  IT BEGINS: 

"ALL THE REST, RESIDUE AND REMAINDER OF MY ESTATE, REAL, PERSONAL AND
MIXED, WHATSOEVER AND WHERESOEVER THE SAME MAY BE AT THE TIME OF MY
DEATH, INCLUDING ANY AND ALL PROPERTY, RIGHTS AND INTEREST OVER WHICH I
MAY HAVE POWER OF APPOINTMENT WHICH PRIOR TO MY DEATH HAS NOT BEEN
EFFECTIVELY EXERCISED BY ME OR HAS BEEN EXERCISED BY ME IN FAVOR OF MY
EXECUTRIX, I DIRECT MY EXECUTRIX TO DEAL WITH AS FOLLOWS  ...  ." 

RESIDUARY LEGATEES DENCKLA AND STEWART, ALREADY THE RECIPIENTS OF
OVER $500,000 EACH, URGE THAT THE POWER OF APPOINTMENT OVER THE
$400,000 APPOINTED TO SISTER ELIZABETH'S CHILDREN WAS NOT "EFFECTIVELY
EXERCISED" AND THAT THE PROPERTY SHOULD ACCORDINGLY PASS TO THEM. 
FOURTEEN MONTHS AFTER MRS. DONNER'S DEATH THESE PARTIES PETITIONED A
FLORIDA CHANCERY COURT FOR A DECLARATORY JUDGMENT "CONCERNING WHAT
PROPERTY PASSES UNDER THE RESIDUARY CLAUSE" OF THE WILL.  PERSONAL
SERVICE WAS HAD UPON THE FOLLOWING DEFENDANTS:  (1) EXECUTRIX ELIZABETH
DONNER HANSON, (2) BENEFICIARIES DONNER HANSON AND JOSEPH DONNER
WINSOR, AND (3) POTENTIAL BENEFICIARY WILLIAM DONNER ROOSEVELT, ALSO
ONE OF ELIZABETH'S CHILDREN.  CURTIN WINSOR, JR., ANOTHER OF
ELIZABETH'S CHILDREN AND ALSO A POTENTIAL BENEFICIARY OF THE DELAWARE
TRUSTS, WAS NOT NAMED AS A PARTY AND WAS NOT SERVED.  ABOUT A DOZEN
OTHER DEFENDANTS WERE NONRESIDENTS AND COULD NOT BE PERSONALLY SERVED. 
THESE INCLUDED THE WILMINGTON TRUST CO. ("TRUSTEE"), THE DELAWARE TRUST
CO. (TO WHOM THE $400,000 HAD BEEN PAID SHORTLY AFTER MRS. DONNER'S
DEATH), CERTAIN INDIVIDUALS WHO WERE POTENTIAL SUCCESSORS IN INTEREST
TO COMPLAINANTS DENCKLA AND STEWART, AND MOST OF THE NAMED APPOINTEES
IN MRS. DONNER'S 1949 APPOINTMENT.  A COPY OF THE PLEADINGS AND A
"NOTICE TO APPEAR AND DEFEND" WERE SENT TO EACH OF THESE DEFENDANTS BY
ORDINARY MAIL, AND NOTICE WAS PUBLISHED LOCALLY AS REQUIRED BY THE
FLORIDA STATUTES DEALING WITH CONSTRUCTIVE SERVICE.  (FN3)  WITH THE
EXCEPTION OF TWO INDIVIDUALS WHOSE INTERESTS COINCIDED WITH
COMPLAINANTS DENCKLA AND STEWART, NONE OF THE NONRESIDENT DEFENDANTS
MADE ANY APPEARANCE. 

THE APPEARING DEFENDANTS (ELIZABETH DONNER HANSON AND HER CHILDREN)
MOVED TO DISMISS THE SUIT BECAUSE THE EXERCISE OF JURISDICTION OVER
INDISPENSABLE PARTIES, THE DELAWARE TRUSTEES, WOULD OFFEND SECTION 1 OF
THE FOURTEENTH AMENDMENT.  THE CHANCELLOR RULED THAT HE LACKED
JURISDICTION OVER THESE NONRESIDENT DEFENDANTS BECAUSE NO PERSONAL
SERVICE WAS HAD AND BECAUSE THE TRUST CORPUS WAS OUTSIDE THE
TERRITORIAL JURISDICTION OF THE COURT.  THE CAUSE WAS DISMISSED AS TO
THEM.  AS FAR AS PARTIES BEFORE THE COURT WERE CONCERNED, HOWEVER, HE
RULED THAT THE POWER OF APPOINTMENT WAS TESTAMENTARY AND VOID UNDER THE
APPLICABLE FLORIDA LAW.  IN A DECREE DATED JAN. 14, 1955, HE RULED THAT
THE $400,000 PASSED UNDER THE RESIDUARY CLAUSE OF THE WILL. 

AFTER THE FLORIDA LITIGATION BEGAN, BUT BEFORE ENTRY OF THE DECREE,
THE EXECUTRIX INSTITUTED A DECLARATORY JUDGMENT ACTION IN DELAWARE TO
DETERMINE WHO WAS ENTITLED TO PARTICIPATE IN THE TRUST ASSETS HELD IN
THAT STATE.  EXCEPT FOR THE ADDITION OF BENEFICIARY WINSOR AND SEVERAL
APPOINTEES, THE PARTIES WERE SUBSTANTIALLY THE SAME AS IN THE FLORIDA
LITIGATION.  NONRESIDENT DEFENDANTS WERE NOTIFIED BY REGISTERED MAIL. 
ALL OF THE TRUST COMPANIES, BENEFICIARIES, AND LEGATEES EXCEPT
KATHERINE N.R. DENCKLA, APPEARED AND PARTICIPATED IN THE LITIGATION. 
AFTER THE FLORIDA COURT ENJOINED EXECUTRIX HANSON FROM FURTHER
PARTICIPATION, HER CHILDREN PURSUED THEIR OWN INTERESTS.  WHEN THE
FLORIDA DECREE WAS ENTERED THE LEGATEES UNSUCCESSFULLY URGED IT AS RES
JUDICATA OF THE DELAWARE DISPUTE.  IN A DECREE DATED JAN. 13, 1956, THE
DELAWARE CHANCELLOR RULED THAT THE TRUST AND POWER OF APPOINTMENT WERE
VALID UNDER THE APPLICABLE DELAWARE LAW, AND THAT THE TRUST CORPUS HAD
PROPERLY BEEN PAID TO THE DELAWARE TRUST CO. AND THE OTHER APPOINTEES. 
- DEL. CH. - , 119 A.2D 901. 

ALLEGING THAT SHE WOULD BE BOUND BY THE DELAWARE DECREE, THE
EXECUTRIX MOVED THE FLORIDA SUPREME COURT TO REMAND WITH INSTRUCTIONS
TO DISMISS THE FLORIDA SUIT THEN PENDING ON APPEAL.  NO FULL FAITH AND
CREDIT QUESTION WAS RAISED.  THE MOTION WAS DENIED.  THE FLORIDA
SUPREME COURT AFFIRMED ITS CHANCELLOR'S CONCLUSION THAT FLORIDA LAW
APPLIED TO DETERMINE THE VALIDITY OF THE TRUST AND POWER OF
APPOINTMENT.  UNDER THAT LAW THE TRUST WAS INVALID BECAUSE THE SETTLOR
HAD RESERVED TOO MUCH POWER OVER THE TRUSTEE AND TRUST CORPUS, AND THE
POWER OF APPOINTMENT WAS NOT INDEPENDENTLY EFFECTIVE TO PASS THE
PROPERTY BECAUSE IT WAS A TESTAMENTARY ACT NOT ACCOMPANIED BY THE
REQUISITE FORMALITIES.  THE CHANCELLOR'S CONCLUSION THAT THERE WAS NO
JURISDICTION OVER THE TRUST COMPANIES AND OTHER ABSENT DEFENDANTS WAS
REVERSED.  THE COURT RULED THAT JURISDICTION TO CONSTRUE THE WILL
CARRIED WITH IT "SUBSTANTIVE" JURISDICTION "OVER THE PERSONS OF THE
ABSENT DEFENDANTS" EVEN THOUGH THE TRUST ASSETS WERE NOT "PHYSICALLY IN
THIS STATE."  WHETHER THIS MEANT JURISDICTION OVER THE PERSON OF THE
DEFENDANTS OR JURISDICTION OVER THE TRUST ASSETS IS OPEN TO DOUBT.  IN
A MOTION FOR REHEARING THE BENEFICIARIES AND APPOINTEES URGED FOR THE
FIRST TIME THAT FLORIDA SHOULD HAVE GIVEN FULL FAITH AND CREDIT TO THE
DECISION OF THE DELAWARE CHANCELLOR.  THE MOTION WAS DENIED WITHOUT
OPINION, NOV. 28, 1956. 

THE FULL FAITH AND CREDIT QUESTION WAS FIRST RAISED IN THE DELAWARE
LITIGATION BY AN UNSUCCESSFUL MOTION FOR NEW TRIAL FILED WITH THE
CHANCELLOR JAN. 20, 1956.  AFTER THE FLORIDA SUPREME COURT DECISION THE
MATTER WAS RENEWED BY A MOTION TO REMAND FILED WITH THE DELAWARE
SUPREME COURT.  IN A DECISION OF JAN. 14, 1957, THAT COURT DENIED THE
MOTION AND AFFIRMED ITS CHANCELLOR IN ALL RESPECTS.   THE FLORIDA
DECREE WAS HELD NOT BINDING FOR PURPOSES OF FULL FAITH AND CREDIT
BECAUSE THE FLORIDA COURT HAD NO PERSONAL JURISDICTION OVER THE TRUST
COMPANIES AND NO JURISDICTION OVER THE TRUST RES. 

THE ISSUES FOR OUR DECISION ARE, FIRST, WHETHER FLORIDA ERRED IN
HOLDING THAT IT HAD JURISDICTION OVER THE NONRESIDENT DEFENDANTS, AND
SECOND, WHETHER DELAWARE ERRED IN REFUSING FULL FAITH AND CREDIT TO THE
FLORIDA DECREE.  WE NEED NOT DETERMINE WHETHER FLORIDA WAS BOUND TO
GIVE FULL FAITH AND CREDIT TO THE DECREE OF THE DELAWARE CHANCELLOR
SINCE THE QUESTION WAS NOT SEASONABLY PRESENTED TO THE FLORIDA COURT. 
RADIO STATION WOW V. JOHNSON, 326 U.S. 120, 128. 

NO. 107, THE FLORIDA APPEAL.  THE QUESTION OF OUR JURISDICTION WAS
POSTPONED UNTIL THE HEARING OF THE MERITS.  THE APPEAL IS PREDICATED
UPON THE CONTENTION THAT AS APPLIED TO THE FACTS OF THIS CASE THE
FLORIDA STATUTE PROVIDING FOR CONSTRUCTIVE SERVICE IS CONTRARY TO THE
FEDERAL CONSTITUTION.  28 U.S.C. SEC. 1257(2).  BUT IN THE STATE COURT
APPELLANTS (THE "BENEFICIARIES") DID NOT OBJECT THAT THE STATUTE WAS
INVALID AS APPLIED, BUT RATHER THAT THE EFFECT OF THE STATE COURT'S
EXERCISE OF JURISDICTION IN THE CIRCUMSTANCES OF THIS CASE DEPRIVED
THEM OF A RIGHT UNDER THE FEDERAL CONSTITUTION.  (FN4)  ACCORDINGLY, WE
ARE WITHOUT JURISDICTION OF THE APPEAL AND IT MUST BE DISMISSED. 
WILSON V. COOK, 327 U.S. 474, 482; CHARLESTON FED. SAV. & L. ASSN. V.
ALDERSON, 324 U.S. 182.  TREATING THE PAPERS WHEREON APPEAL WAS TAKEN
AS A PETITION FOR CERTIORARI, 28 U.S.C. SEC. 2103, CERTIORARI IS
GRANTED. 

RELYING UPON THE PRINCIPLE THAT A PERSON CANNOT INVOKE THE
JURISDICTION OF THIS COURT TO VINDICATE THE RIGHT OF A THIRD PARTY,
(FN5) APPELLEES URGE THAT APPELLANTS LACK STANDING TO COMPLAIN OF A
DEFECT IN JURISDICTION OVER THE NONRESIDENT TRUST COMPANIES, WHO HAVE
MADE NO APPEARANCE IN THIS ACTION.  FLORIDA ADHERES TO THE GENERAL RULE
THAT A TRUSTEE IS AN INDISPENSABLE PARTY TO LITIGATION INVOLVING THE
VALIDITY OF THE TRUST.  (FN6)  IN THE ABSENCE OF SUCH A PARTY A FLORIDA
COURT MAY NOT PROCEED TO ADJUDICATE THE CONTROVERSY.  (FN7)  SINCE
STATE LAW REQUIRED THE ACQUISITION OF JURISDICTION OVER THE NONRESIDENT
TRUST COMPANY (FN8) BEFORE THE COURT WAS EMPOWERED TO PROCEED WITH THE
ACTION, ANY DEFENDANT AFFECTED BY THE COURT'S JUDGMENT HAS THAT "DIRECT
AND SUBSTANTIAL PERSONAL INTEREST IN THE OUTCOME" THAT IS NECESSARY TO
CHALLENGE WHETHER THAT JURISDICTION WAS IN FACT ACQUIRED.  CHICAGO V.
ATCHISON, T.&S.F.R. CO., 357 U.S. 77. 

APPELLANTS CHARGE THAT THIS JUDGMENT IS OFFENSIVE TO THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE THE FLORIDA COURT WAS
WITHOUT JURISDICTION.  THERE IS NO SUGGESTION THAT THE COURT FAILED TO
EMPLOY A MEANS OF NOTICE REASONABLY CALCULATED TO INFORM NONRESIDENT
DEFENDANTS OF THE PENDING PROCEEDINGS, (FN9) OR DENIED THEM AN
OPPORTUNITY TO BE HEARD IN DEFENSE OF THEIR INTERESTS.  (FN10)  THE
ALLEGED DEFECT IS THE ABSENCE OF THOSE "AFFILIATING CIRCUMSTANCES"
(FN11) WITHOUT WHICH THE COURTS OF A STATE MAY NOT ENTER A JUDGMENT
IMPOSING OBLIGATIONS ON PERSONS (JURISDICTION IN PERSONAM) OR AFFECTING
INTERESTS IN PROPERTY (JURISDICTION IN REM OR QUASI IN REM).  (FN12)
WHILE THE IN REM AND IN PERSONAM CLASSIFICATIONS DO NOT EXHAUST ALL THE
SITUATIONS THAT GIVE RISE TO JURISDICTION, (FN13) THEY ARE ADEQUATE TO
DESCRIBE THE AFFILIATING CIRCUMSTANCES SUGGESTED HERE, AND ACCORDINGLY
SERVE AS A USEFUL MEANS OF APPROACH TO THIS CASE.    IN REM
JURISDICTION.  FOUNDED ON PHYSICAL POWER, MCDONALD V. MABEE, 243 U.S.
90, 91, THE IN REM JURISDICTION OF A STATE COURT IS LIMITED BY THE
EXTENT OF ITS POWER AND BY THE COORDINATE AUTHORITY OF SISTER STATES. 
(FN14)  THE BASIS OF THE JURISDICTION IS THE PRESENCE OF THE SUBJECT
PROPERTY WITHIN THE TERRITORIAL JURISDICTION OF THE FORUM STATE.  ROSE
V. HIMELY, 4 CRANCH 241, 277; OVERBY V. GORDON, 177 U.S. 214, 221-222. 
TANGIBLE PROPERTY POSES NO PROBLEM FOR THE APPLICATION OF THIS RULE,
BUT THE SITUS OF INTANGIBLES IS OFTEN A MATTER OF CONTROVERSY.  (FN15)
IN CONSIDERING RESTRICTIONS ON THE POWER TO TAX, THIS COURT HAS
CONCLUDED THAT "JURISDICTION" OVER INTANGIBLE PROPERTY IS NOT LIMITED
TO A SINGLE STATE.  TAX COMMISSION V. ALDRICH, 316 U.S. 174; CURRY V.
MCCANLESS, 307 U.S. 357.  WHETHER THE TYPE OF "JURISDICTION" WITH WHICH
THIS OPINION DEALS MAY BE EXERCISED BY MORE THAN ONE STATE WE NEED NOT
DECIDE.  THE PARTIES SEEM TO ASSUME THAT THE TRUST ASSETS THAT FORM THE
SUBJECT MATTER OF THIS ACTION (FN16) WERE LOCATED IN DELAWARE AND NOT
IN FLORIDA.  WE CAN SEE NOTHING IN THE RECORD CONTRARY TO THAT
ASSUMPTION, OR SUFFICIENT TO ESTABLISH A SITUS IN FLORIDA.  (FN17) 

THE FLORIDA COURT HELD THAT THE PRESENCE OF THE SUBJECT PROPERTY WAS
NOT ESSENTIAL TO ITS JURISDICTION.  AUTHORITY OVER THE PROBATE AND
CONSTRUCTION OF ITS DOMICILIARY'S WILL, UNDER WHICH THE ASSETS MIGHT
PASS, WAS THOUGHT SUFFICIENT TO CONFER THE REQUISITE JURISDICTION. 
(FN18)  BUT JURISDICTION CANNOT BE PREDICATED UPON THE CONTINGENT ROLE
OF THIS FLORIDA WILL.  WHATEVER THE EFFICACY OF A SO-CALLED "IN REM"
JURISDICTION OVER ASSETS ADMITTEDLY PASSING UNDER A LOCAL WILL, A STATE
ACQUIRES NO IN REM JURISDICTION TO ADJUDICATE THE VALIDITY OF INTER
VIVOS DISPOSITIONS SIMPLY BECAUSE ITS DECISION MIGHT AUGMENT AN ESTATE
PASSING UNDER A WILL PROBATED IN ITS COURTS.  IF SUCH A BASIS OF
JURISDICTION WERE SUSTAINED, PROBATE COURTS WOULD ENJOY NATIONWIDE
SERVICE OF PROCESS TO ADJUDICATE INTERESTS IN PROPERTY WITH WHICH
NEITHER THE STATE NOR THE DECEDENT COULD CLAIM ANY AFFILIATION.  THE
SETTLOR-DECEDENT'S FLORIDA DOMICILE IS EQUALLY UNAVAILING AS A BASIS
FOR JURISDICTION OVER THE TRUST ASSETS.  FOR THE PURPOSE OF
JURISDICTION IN REM THE MAXIM THAT PERSONALTY HAS ITS SITUS AT THE
DOMICILE OF ITS OWNER (FN19) IS A FICTION OF LIMITED UTILITY.  GREEN V.
VAN BUSKIRK, 7 WALL.  139, 150.  THE MAXIM IS NO LESS SUSPECT WHEN THE
DOMICILE IS THAT OF A DECEDENT.  IN ANALOGOUS CASES, THIS COURT HAS
REJECTED THE SUGGESTION THAT THE PROBATE DECREE OF THE STATE WHERE
DECEDENT WAS DOMICILED HAS AN IN REM EFFECT ON PERSONALTY OUTSIDE THE
FORUM STATE THAT COULD RENDER IT CONCLUSIVE ON THE INTERESTS OF
NONRESIDENTS OVER WHOM THERE WAS NO PERSONAL JURISDICTION.  RILEY V.
NEW YORK TRUST CO., 315 U.S. 343, 353; BAKER V. BAKER, ECCLES & CO.,
242 U.S. 394, 401; OVERBY V. GORDON, 177 U.S. 214.  (FN20)  THE FACT
THAT THE OWNER IS OR WAS DOMICILED WITHIN THE FORUM STATE IS NOT A
SUFFICIENT AFFILIATION WITH THE PROPERTY UPON WHICH TO BASE
JURISDICTION IN REM.  HAVING CONCLUDED THAT FLORIDA HAD NO IN REM
JURISDICTION, WE PROCEED TO CONSIDER WHETHER A JUDGMENT PURPORTING TO
REST ON THAT BASIS IS INVALID IN FLORIDA AND MUST THEREFORE BE
REVERSED. 

PRIOR TO THE FOURTEENTH AMENDMENT AN EXERCISE OF JURISDICTION OVER
PERSONS OR PROPERTY OUTSIDE THE FORUM STATE WAS THOUGHT TO BE AN
ABSOLUTE NULLITY, (FN21) BUT THE MATTER REMAINED A QUESTION OF STATE
LAW OVER WHICH THIS COURT EXERCISED NO AUTHORITY.  (FN22)  WITH THE
ADOPTION OF THAT AMENDMENT, ANY JUDGMENT PURPORTING TO BIND THE PERSON
OF A DEFENDANT OVER WHOM THE COURT HAD NOT ACQUIRED IN PERSONAM
JURISDICTION WAS VOID WITHIN THE STATE AS WELL AS WITHOUT.  PENNOYER V.
NEFF, 95 U.S. 714.  NEARLY A CENTURY HAS PASSED WITHOUT THIS COURT
BEING CALLED UPON TO APPLY THAT PRINCIPLE TO AN IN REM JUDGMENT DEALING
WITH PROPERTY OUTSIDE THE FORUM STATE.  THE INVALIDITY OF SUCH A
JUDGMENT WITHIN THE FORUM STATE SEEMS TO HAVE BEEN ASSUMED - AND WITH
GOOD REASON.  SINCE A STATE IS FORBIDDEN TO ENTER A JUDGMENT ATTEMPTING
TO BIND A PERSON OVER WHOM IT HAS NO JURISDICTION, IT HAS EVEN LESS
RIGHT TO ENTER A JUDGMENT PURPORTING TO EXTINGUISH THE INTEREST OF SUCH
A PERSON IN PROPERTY OVER WHICH THE COURT HAS NO JURISDICTION.  (FN23)
THEREFORE, SO FAR AS IT PURPORTS TO REST UPON JURISDICTION OVER THE
TRUST ASSETS, THE JUDGMENT OF THE FLORIDA COURT CANNOT BE SUSTAINED. 
SADLER V. INDUSTRIAL TRUST CO., 327 MASS. 10, 97 N.E.2D 169. 

IN PERSONAM JURISDICTION.  APPELLEES' STRONGER ARGUMENT IS FOR IN
PERSONAM JURISDICTION OVER THE DELAWARE TRUSTEE.  THEY URGE THAT THE
CIRCUMSTANCES OF THIS CASE AMOUNT TO SUFFICIENT AFFILIATION WITH THE
STATE OF FLORIDA TO EMPOWER ITS COURTS TO EXERCISE PERSONAL
JURISDICTION OVER THIS NONRESIDENT DEFENDANT.  PRINCIPAL RELIANCE IS
PLACED UPON MCGEE V. INTERNATIONAL LIFE INS. CO., 355 U.S. 220.  IN
MCGEE THE COURT NOTED THE TREND OF EXPANDING PERSONAL JURISDICTION OVER
NONRESIDENTS.  AS TECHNOLOGICAL PROGRESS HAS INCREASED THE FLOW OF
COMMERCE BETWEEN STATES, THE NEED FOR JURISDICTION OVER NONRESIDENTS
HAS UNDERGONE A SIMILAR INCREASE.  AT THE SAME TIME, PROGRESS IN
COMMUNICATIONS AND TRANSPORTATION HAS MADE THE DEFENSE OF A SUIT IN A
FOREIGN TRIBUNAL LESS BURDENSOME.  IN RESPONSE TO THESE CHANGES, THE
REQUIREMENTS FOR PERSONAL JURISDICTION OVER NONRESIDENTS HAVE EVOLVED
FROM THE RIGID RULE OF PENNOYER V. NEFF, 95 U.S. 714, TO THE FLEXIBLE
STANDARD OF INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310.  BUT IT
IS A MISTAKE TO ASSUME THAT THIS TREND HERALDS THE EVENTUAL DEMISE OF
ALL RESTRICTIONS ON THE PERSONAL JURISDICTION OF STATE COURTS.  SEE
VANDERBILT V. VANDERBILT, 354 U.S. 416, 418.  THOSE RESTRICTIONS ARE
MORE THAN A GUARANTEE OF IMMUNITY FROM INCONVENIENT OR DISTANT
LITIGATION.  THEY ARE A CONSEQUENCE OF TERRITORIAL LIMITATIONS ON THE
POWER OF THE RESPECTIVE STATES.  HOWEVER MINIMAL THE BURDEN OF
DEFENDING IN A FOREIGN TRIBUNAL, A DEFENDANT MAY NOT BE CALLED UPON TO
DO SO UNLESS HE HAS HAD THE "MINIMAL CONTACTS" WITH THAT STATE THAT ARE
A PREREQUISITE TO ITS EXERCISE OF POWER OVER HIM.  SEE INTERNATIONAL
SHOE CO. V. WASHINGTON, 326 U.S. 310, 319. 

WE FAIL TO FIND SUCH CONTACTS IN THE CIRCUMSTANCES OF THIS CASE.  THE
DEFENDANT TRUST COMPANY HAS NO OFFICE IN FLORIDA, AND TRANSACTS NO
BUSINESS THERE.  NONE OF THE TRUST ASSETS HAS EVER BEEN HELD OR
ADMINISTERED IN FLORIDA, AND THE RECORD DISCLOSES NO SOLICITATION OF
BUSINESS IN THAT STATE EITHER IN PERSON OR BY MAIL.  CF. INTERNATIONAL
SHOE CO. V. WASHINGTON, 326 U.S. 310; MCGEE V. INTERNATIONAL LIFE INS.
CO., 355 U.S. 220; TRAVELERS HEALTH ASSN. V. VIRGINIA, 339 U.S. 643. 

THE CAUSE OF ACTION IN THIS CASE IS NOT ONE THAT ARISES OUT OF AN ACT
DONE OR TRANSACTION CONSUMMATED IN THE FORUM STATE.  IN THAT RESPECT,
IT DIFFERS FROM MCGEE V. INTERNATIONAL LIFE INS. CO., 355 U.S. 220, AND
THE CASES THERE CITED.  IN MCGEE, THE NONRESIDENT DEFENDANT SOLICITED A
REINSURANCE AGREEMENT WITH A RESIDENT OF CALIFORNIA.  THE OFFER WAS
ACCEPTED IN THAT STATE, AND THE INSURANCE PREMIUMS WERE MAILED FROM
THERE UNTIL THE INSURED'S DEATH.  NOTING THE INTEREST CALIFORNIA HAS IN
PROVIDING EFFECTIVE REDRESS FOR ITS RESIDENTS WHEN NONRESIDENT INSURERS
REFUSE TO PAY CLAIMS ON INSURANCE THEY HAVE SOLICITED IN THAT STATE,
THE COURT UPHELD JURISDICTION BECAUSE THE SUIT "WAS BASED ON A CONTRACT
WHICH HAD SUBSTANTIAL CONNECTION WITH THAT STATE."  IN CONTRAST, THIS
ACTION INVOLVES THE VALIDITY OF AN AGREEMENT THAT WAS ENTERED WITHOUT
ANY CONNECTION WITH THE FORUM STATE.  THE AGREEMENT WAS EXECUTED IN
DELAWARE BY A TRUST COMPANY INCORPORATED IN THAT STATE AND A SETTLOR
DOMICILED IN PENNSYLVANIA.  THE FIRST RELATIONSHIP FLORIDA HAD TO THE
AGREEMENT WAS YEARS LATER WHEN THE SETTLOR BECAME DOMICILED THERE, AND
THE TRUSTEE REMITTED THE TRUST INCOME TO HER IN THAT STATE.  FROM
FLORIDA MRS. DONNER CARRIED ON SEVERAL BITS OF TRUST ADMINISTRATION
THAT MAY BE COMPARED TO THE MAILING OF PREMIUMS IN MCGEE.  (FN24)  BUT
THE RECORD DISCLOSES NO INSTANCE IN WHICH THE TRUSTEE PERFORMED ANY
ACTS IN FLORIDA THAT BEAR THE SAME RELATIONSHIP TO THE AGREEMENT AS THE
SOLICITATION IN MCGEE.  CONSEQUENTLY, THIS SUIT CANNOT BE SAID TO BE
ONE TO ENFORCE AN OBLIGATION THAT AROSE FROM A PRIVILEGE THE DEFENDANT
EXERCISED IN FLORIDA.  CF. INTERNATIONAL SHOE CO. V. WASHINGTON, 326
U.S. 310, 319.  THIS CASE IS ALSO DIFFERENT FROM MCGEE IN THAT THERE
THE STATE HAD ENACTED SPECIAL LEGISLATION (UNAUTHORIZED INSURERS
PROCESS ACT) TO EXERCISE WHAT MCGEE CALLED ITS "MANIFEST INTEREST" IN
PROVIDING EFFECTIVE REDRESS FOR CITIZENS WHO HAD BEEN INJURED BY
NONRESIDENTS ENGAGED IN AN ACTIVITY THAT THE STATE TREATS AS
EXCEPTIONAL AND SUBJECTS TO SPECIAL REGULATION.  CF. TRAVELERS HEALTH
ASSN.  V. VIRGINIA, 339 U.S. 643, 647-649; DOHERTY & CO. V. GOODMAN,
294 U.S. 623, 627; HESS V. PAWLOSKI, 274 U.S. 352. 

THE EXECUTION IN FLORIDA OF THE POWERS OF APPOINTMENT UNDER WHICH THE
BENEFICIARIES AND APPOINTEES CLAIM DOES NOT GIVE FLORIDA A SUBSTANTIAL
CONNECTION WITH THE CONTRACT ON WHICH THIS SUIT IS BASED.  IT IS THE
VALIDITY OF THE TRUST AGREEMENT, NOT THE APPOINTMENT, THAT IS AT ISSUE
HERE.  (FN25)  FOR THE PURPOSE OF APPLYING ITS RULE THAT THE VALIDITY
OF A TRUST IS DETERMINED BY THE LAW OF THE STATE OF ITS CREATION,
FLORIDA RULED THAT THE APPOINTMENT AMOUNTED TO A "REPUBLICATION" OF THE
ORIGINAL TRUST INSTRUMENT IN FLORIDA.  FOR CHOICE-OF-LAW PURPOSES SUCH
A RULING MAY BE JUSTIFIED, BUT WE THINK IT AN INSUBSTANTIAL CONNECTION
WITH THE TRUST AGREEMENT FOR PURPOSES OF DETERMINING THE QUESTION OF
PERSONAL JURISDICTION OVER A NONRESIDENT DEFENDANT.  THE UNILATERAL
ACTIVITY OF THOSE WHO CLAIM SOME RELATIONSHIP WITH A NONRESIDENT
DEFENDANT CANNOT SATISFY THE REQUIREMENT OF CONTACT WITH THE FORUM
STATE.  THE APPLICATION OF THAT RULE WILL VARY WITH THE QUALITY AND
NATURE OF THE DEFENDANT'S ACTIVITY, BUT IT IS ESSENTIAL IN EACH CASE
THAT THERE BE SOME ACT BY WHICH THE DEFENDANT PURPOSEFULLY AVAILS
ITSELF OF THE PRIVILEGE OF CONDUCTING ACTIVITIES WITHIN THE FORUM
STATE, THUS INVOKING THE BENEFITS AND PROTECTIONS OF ITS LAWS. 
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310, 319.  THE SETTLOR'S
EXECUTION IN FLORIDA OF HER POWER OF APPOINTMENT CANNOT REMEDY THE
ABSENCE OF SUCH AN ACT IN THIS CASE. 

IT IS URGED THAT BECAUSE THE SETTLOR AND MOST OF THE APPOINTEES AND
BENEFICIARIES WERE DOMICILED IN FLORIDA THE COURTS OF THAT STATE SHOULD
BE ABLE TO EXERCISE PERSONAL JURISDICTION OVER THE NONRESIDENT
TRUSTEES.  THIS IS A NON SEQUITUR.  WITH PERSONAL JURISDICTION OVER THE
EXECUTOR, LEGATEES, AND APPOINTEES, THERE IS NOTHING IN FEDERAL LAW TO
PREVENT FLORIDA FROM ADJUDICATING CONCERNING THE RESPECTIVE RIGHTS AND
LIABILITIES OF THOSE PARTIES.  BUT FLORIDA HAS NOT CHOSEN TO DO SO.  AS
WE UNDERSTAND ITS LAW, THE TRUSTEE IS AN INDISPENSABLE PARTY OVER WHOM
THE COURT MUST ACQUIRE JURISDICTION BEFORE IT IS EMPOWERED TO ENTER
JUDGMENT IN A PROCEEDING AFFECTING THE VALIDITY OF A TRUST.  (FN26)  IT
DOES NOT ACQUIRE THAT JURISDICTION BY BEING THE "CENTER OF GRAVITY" OF
THE CONTROVERSY, OR THE MOST CONVENIENT LOCATION FOR LITIGATION.  THE
ISSUE IS PERSONAL JURISDICTION, NOT CHOICE OF LAW.  IT IS RESOLVED IN
THIS CASE BY CONSIDERING THE ACTS OF THE TRUSTEE.  AS WE HAVE
INDICATED, THEY ARE INSUFFICIENT TO SUSTAIN THE JURISDICTION.  (FN27) 

BECAUSE IT SUSTAINED JURISDICTION OVER THE NONRESIDENT TRUSTEES, THE
FLORIDA SUPREME COURT FOUND IT UNNECESSARY TO DETERMINE WHETHER FLORDIA
LAW MADE THOSE DEFENDANTS INDISPENSABLE PARTIES IN THE CIRCUMSTANCES OF
THIS CASE.  OUR CONCLUSION THAT FLORIDA WAS WITHOUT JURISDICTION OVER
THE DELAWARE TRUSTEE, OR OVER THE TRUST CORPUS HELD IN THAT STATE,
REQUIRES THAT WE MAKE THAT DETERMINATION IN THE FIRST INSTANCE.  AS WE
HAVE NOTED EARLIER, THE FLORIDA SUPREME COURT HAS REPEATEDLY HELD THAT
A TRUSTEE IS AN INDISPENSABLE PARTY WITHOUT WHOM A FLORIDA COURT HAS NO
POWER TO ADJUDICATE CONTROVERSIES AFFECTING THE VALIDITY OF A TRUST. 
(FN28)  FOR THAT REASON THE FLORIDA JUDGMENT MUST BE REVERSED NOT ONLY
AS TO THE NONRESIDENT TRUSTEES BUT ALSO AS TO APPELLANTS, OVER WHOM THE
FLORIDA COURT ADMITTEDLY HAD JURISDICTION. 

NO. 117, THE DELAWARE CERTIORARI.  THE SAME REASONS THAT COMPEL
REVERSAL OF THE FLORIDA JUDGMENT REQUIRE AFFIRMANCE OF THE DELAWARE
ONE.  DELAWARE IS UNDER NO OBLIGATION TO GIVE FULL FAITH AND CREDIT TO
A FLORIDA JUDGMENT INVALID IN FLORIDA BECAUSE OFFENSIVE TO THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  28 U.S.C. SEC. 1738.  EVEN
BEFORE PASSAGE OF THE FOURTEENTH AMENDMENT THIS COURT SUSTAINED STATE
COURTS IN REFUSING FULL FAITH AND CREDIT TO JUDGMENTS ENTERED BY COURTS
THAT WERE WITHOUT JURISDICTION OVER NONRESIDENT DEFENDANTS.  D'ARCY V.
KETCHUM, 11 HOW.  165; HALL V. LANNING, 91 U.S. 160.  SEE BAKER V.
BAKER, ECCLES & CO., 242 U.S. 394; RILEY V. NEW YORK TRUST CO., 315
U.S. 343.  SINCE DELAWARE WAS ENTITLED TO CONCLUDE THAT FLORIDA LAW
MADE THE TRUST COMPANY AN INDISPENSABLE PARTY, IT WAS UNDER NO
OBLIGATION TO GIVE THE FLORIDA JUDGMENT ANY FAITH AND CREDIT - EVEN
AGAINST PARTIES OVER WHOM FLORIDA'S JURISDICTION WAS UNQUESTIONED. 

IT IS SUGGESTED THAT THIS DISPOSITION IS IMPROPER - THAT THE DELAWARE
CASE SHOULD BE HELD WHILE THE FLORIDA CAUSE IS REMANDED TO GIVE THAT
COURT AN OPPORTUNITY TO DETERMINE WHETHER THE TRUSTEE IS AN
INDISPENSABLE PARTY IN THE CIRCUMSTANCES OF THIS CASE.  BUT THIS IS NOT
A CASE LIKE HERB V. PITCAIRN, 324 U.S. 117, WHERE IT IS APPROPRIATE TO
REMAND FOR THE STATE COURT TO CLARIFY AN AMBIGUITY IN ITS OPINION THAT
MAY REVEAL AN ADEQUATE STATE GROUND THAT WOULD DEPRIVE US OF POWER TO
AFFECT THE RESULT OF THE CONTROVERSY.  NOR IS THIS A CIRCUMSTANCE WHERE
THE STATE COURT HAS NEVER RULED ON THE QUESTION OF STATE LAW THAT WE
ARE DECIDING.  ALTHOUGH THE QUESTION WAS LEFT OPEN IN THIS CASE, THERE
IS AMPLE FLORIDA AUTHORITY FROM WHICH WE MAY DETERMINE THE APPROPRIATE
ANSWER.    THE RULE OF PRIMACY TO THE FIRST FINAL JUDGMENT IS A
NECESSARY INCIDENT TO THE REQUIREMENT OF FULL FAITH AND CREDIT.  OUR
ONLY FUNCTION IS TO DETERMINE WHETHER JUDGMENTS ARE CONSISTENT WITH THE
FEDERAL CONSTITUTION.  IN DETERMINING THE CORRECTNESS OF DELAWARE'S
JUDGMENT WE LOOK TO WHAT DELAWARE WAS ENTITLED TO CONCLUDE FROM THE
FLORIDA AUTHORITIES AT THE TIME THE DELAWARE COURT'S JUDGMENT WAS
ENTERED.  TO WITHHOLD AFFIRMANCE OF A CORRECT DELAWARE JUDGMENT UNTIL
FLORIDA HAS HAD TIME TO RULE ON ANOTHER QUESTION WOULD BE PARTICIPATING
IN THE LITIGATION INSTEAD OF ADJUDICATING ITS OUTCOME. 

THE JUDGMENT OF THE DELAWARE SUPREME COURT IS AFFIRMED, AND THE
JUDGMENT OF THE FLORIDA SUPREME COURT IS REVERSED AND THE CAUSE IS
REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1 THE APPOINTMENT WAS PARTIALLY REVOKED JULY 7, 1950 IN A RESPECT
NOT MATERIAL TO THE INSTANT CONTROVERSY. 

FN2  THE HOSPITAL RECEIVED $10,000.  SIX SERVANTS QUALIFIED FOR
APPOINTMENTS TOTALLING $7,000. 

FN3  FLA. STAT., 1957, C. 48, SEC. 48.01:  "SERVICE OF PROCESS BY
PUBLICATION MAY BE HAD, IN ANY OF THE SEVERAL COURTS OF THIS STATE, AND
UPON ANY OF THE PARTIES MENTIONED IN SEC. 48.02 IN ANY SUIT OR
PROCEEDING: 

"(1)  TO ENFORCE ANY LEGAL OR EQUITABLE LIEN UPON OR CLAIM TO ANY
TITLE OR INTEREST IN REAL OR PERSONAL PROPERTY WITHIN THE JURISDICTION
OF THE COURT OR ANY FUND HELD OR DEBT OWING BY ANY PARTY UPON WHOM
PROCESS CAN BE SERVED WITHIN THIS STATE. 

     *         *         *         *         * 

"(5)  FOR THE CONSTRUCTION OF ANY WILL, DEED, CONTRACT OR OTHER
WRITTEN INSTRUMENT AND FOR A JUDICIAL DECLARATION OR ENFORCEMENT OF ANY
LEGAL OR EQUITABLE RIGHT, TITLE, CLAIM, LIEN OR INTEREST THEREUNDER." 

SEC. 48.02:  "WHERE PERSONAL SERVICE OF PROCESS CANNOT BE HAD,
SERVICE OF PROCESS BY PUBLICATION MAY BE HAD UPON ANY PARTY, NATURAL OR
CORPORATE, KNOWN OR UNKNOWN, INCLUDING:  (1) ANY KNOWN OR UNKNOWN
NATURAL PERSON  ...  (2) ANY CORPORATION OR OTHER LEGAL ENTITY, WHETHER
ITS DOMICILE BE FOREIGN, DOMESTIC OR UNKNOWN  ...  ." 

FN4  THE RECORD DISCLOSES NO MENTION OF THE STATE STATUTE UNTIL THE
PETITION FOR REHEARING IN THE FLORIDA SUPREME COURT.  IN THE TRIAL
COURT, APPELLANT'S MOTION TO DISMISS RAISED THE FEDERAL QUESTION IN
THIS MANNER:  "THE EXERCISE BY THIS COURT OF THE JURISDICTION SOUGHT TO
BE INVOKED BY THE PLAINTIFFS HEREIN WOULD CONTRAVENE THE CONSTITUTION
AND LAWS OF THE STATE OF FLORIDA AND THE CONSTITUTION OF THE UNITED
STATES, AND, IN PARTICULAR, SECTION 1 OF THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION."  NO. 107, R. 41. 

FN5  SEE LIBERTY WAREHOUSE CO. V. BURLEY T.G. CO-OP. M. ASSN., 276
U.S. 71, 88; SMITH V. INDIANA, 191 U.S. 138, 148; TYLER V. JUDGES OF
THE COURT OF REGISTRATION, 179 U.S. 405; ROBERTSON AND KIRKHAM,
JURISDICTION OF THE SUPREME COURT (WOLFSON AND KURLAND ED.), SEC. 298. 

FN6  TRUEMAN FERTILIZER CO. V. ALLISON, 81 SO. 2D 734, 738; WINN V.
STRICKLAND, 34 FLA.  610, 633, 16 SO. 606, 613; WILSON V. RUSS, 17 FLA.
691, 697; MCARTHUR V. SCOTT, 113 U.S. 340, 396; SADLER V. INDUSTRIAL
TRUST CO., 327 MASS. 10, 97 N.E.2D 169. 

FN7  MARTINEZ V. BALBIN, 76 S. 2D 488, 490; FLORIDA LAND ROCK
PHOSPHATE CO. V. ANDERSON, 50 FLA. 501, 512-513, 39 SO. 392, 396. 

FN8  HEREAFTER THE TERMS "TRUST," "TRUST COMPANY" AND "TRUSTEE" HAVE
REFERENCE TO THE TRUST ESTABLISHED IN 1935 WITH THE WILMINGTON TRUST
CO., THE VALIDITY OF WHICH IS AT ISSUE HERE.  IT IS UNNECESSARY TO
DETERMINE WHETHER THE DELAWARE TRUST CO., TO WHICH THE $400,000
REMAINDER INTEREST WAS APPOINTED AND WAS PAID AFTER MRS. DONNER'S
DEATH, IS ALSO AN INDISPENSABLE PARTY TO THIS PROCEEDING. 

FN9  WALKER V. CITY OF HUTCHINSON, 352 U.S. 112; MULLANE V. CENTRAL
HANOVER B.&T. CO., 339 U.S. 306; MCDONALD V. MABEE, 243 U.S. 90. 

FN10  ROLLER V. HOLLY, 176 U.S. 398. 

FN11  SUNDERLAND, THE PROBLEM OF JURISDICTION, SELECTED ESSAYS ON
CONSTITUTIONAL LAW, 1270, 1272. 

FN12  A JUDGMENT IN PERSONAM IMPOSES A PERSONAL LIABILITY OR
OBLIGATION ON ONE PERSON IN FAVOR OF ANOTHER.  A JUDGMENT IN REM
AFFECTS THE INTERESTS OF ALL PERSONS IN DESIGNATED PROPERTY.  A
JUDGMENT QUASI IN REM AFFECTS THE INTERESTS OF PARTICULAR PERSONS IN
DESIGNATED PROPERTY.  THE LATTER IS OF TWO TYPES.  IN ONE THE PLAINTIFF
IS SEEKING TO SECURE A PRE-EXISTING CLAIM IN THE SUBJECT PROPERTY AND
TO EXTINGUISH OR ESTABLISH THE NONEXISTENCE OF SIMILAR INTERESTS OF
PARTICULAR PERSONS.  IN THE OTHER THE PLAINTIFF SEEKS TO APPLY WHAT HE
CONCEDES TO BE THE PROPERTY OF THE DEFENDANT TO THE SATISFACTION OF A
CLAIM AGAINST HIM.  RESTATEMENT, JUDGMENTS, 5-9.  FOR CONVENIENCE OF
TERMINOLOGY THIS OPINION WILL USE "IN REM" IN LIEU OF "IN REM AND QUASI
IN REM." 

FN13  E.G., MULLANE V. CENTRAL HANOVER BANK & TRUST CO., 339 U.S.
306, 312; WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 297.  FRASER,
JURISDICTION BY NECESSITY, 100 U. OF PA. L. REV. 305. 

FN14  BAKER V. BAKER, ECCLES & CO., 242 U.S. 394, 400; RILEY V. NEW
YORK TRUST CO., 315 U.S. 343, 349; OVERBY V. GORDON, 177 U.S. 214, 221
222; PENNOYER V. NEFF, 95 U.S. 714; ROSE V. HIMELY, 4 CRANCH 241, 277. 

FN15  SEE ANDREWS, SITUS OF INTANGIBLES IN SUITS AGAINST NON-RESIDENT
CLAIMANTS, 49 YALE L.J. 241. 

FN16  THIS CASE DOES NOT CONCERN THE SITUS OF A BENEFICIAL INTEREST
IN TRUST PROPERTY.  THESE APPELLEES WERE CONTESTING THE VALIDITY OF THE
TRUST.  THEIR CONCERN WAS WITH THE LEGAL INTEREST OF THE TRUSTEE OR, IF
THE TRUST WAS INVALID, THE SETTLOR.  THEREFORE, THE RELEVANT FACTOR
HERE IS THE SITUS OF THE STOCKS, BONDS, AND NOTES THAT MAKE UP THE
CORPUS OF THE TRUST.  PROPERLY SPEAKING SUCH ASSETS ARE INTANGIBLES
THAT HAVE NO "PHYSICAL" LOCATION.  BUT THEIR EMBODIMENT IN DOCUMENTS
TREATED FOR MOST PURPOSES AS THE ASSETS THEMSELVES MAKES THEM PARTAKE
OF THE NATURE OF TANGIBLES.  CF. WHEELER V. SOHMER, 233 U.S. 434, 439. 

FN17  THE DOCUMENTS EVIDENCING OWNERSHIP OF THE TRUST PROPERTY WERE
HELD IN DELAWARE, CF.  BANK OF JASPER V. FIRST NAT. BANK, 258 U.S. 112,
119, BY A DELAWARE TRUSTEE WHO WAS THE OBLIGEE OF THE CREDIT
INSTRUMENTS AND THE RECORD OWNER OF THE STOCK.  THE LOCATION OF THE
OBLIGORS AND THE DOMICILE OF THE CORPORATIONS DO NOT APPEAR.  THE TRUST
INSTRUMENT WAS EXECUTED IN DELAWARE BY A SETTLOR THEN DOMICILED IN
PENNSYLVANIA.  WITHOUT EXPRESSING ANY OPINION ON THE SIGNIFICANCE OF
THESE OR OTHER FACTORS UNNAMED, WE NOTE THAT NONE RELATES TO FLORIDA. 

FN18  THE FLORIDA SUPREME COURT'S OPINION STATES:  "WE HELD IN
HENDERSON V. USHER, 118 FLA. 688, 160 SO. 9 THAT CONSTRUCTIVE SERVICE
WAS VALID IN THAT STATE OF THE RECORD BECAUSE SUBSTANTIVE JURISDICTION
EXISTED IN THE FLORIDA COURT BY VIRTUE OF CONSTRUCTION OF A WILL, WHICH
WAS ALSO INVOLVED, THE TESTATOR HAVING BEEN DOMICILED IN FLORIDA.  WE
OBSERVED THAT IT WAS NOT ESSENTIAL THAT THE ASSETS OF THE TRUST BE
PHYSICALLY IN THIS STATE IN ORDER THAT CONSTRUCTIVE SERVICE BE BINDING
UPON A NON-RESIDENT WHERE THE PROBLEM PRESENTED TO THE COURT WAS TO
ADJUDICATE, INTER ALIA, THE STATUS OF THE SECURITIES INCORPORATED IN
THE TRUST ESTATE AND THE RIGHTS OF THE NON-RESIDENT THEREIN.  IT IS
ENTIRELY CONSISTENT WITH THE HENDERSON CASE TO HOLD, AS WE DO, THAT THE
COURT BELOW ERRED IN RULING THAT IT LACKED JURISDICTION OVER THE
PERSONS OF THE ABSENT DEFENDANTS."  100 SO. 2D, AT 385. 

THE FOREGOING LEAVES UNCLEAR WHETHER THE COURT WAS INVOKING IN
PERSONAM JURISDICTION OVER THE TRUSTEE, OR IN REM JURISDICTION OVER THE
TRUST ASSETS.  HENDERSON V. USHER, SUPRA, WHICH WAS AN ACTION BY
TESTAMENTARY TRUSTEES FOR A CONSTRUCTION OF THE WILL ESTABLISHING A
TRUST WHOSE ASSETS WERE HELD IN NEW YORK, FOUND IT UNNECESSARY TO
DECIDE THE BASIS OF THE JURISDICTION EXERCISED.  IN RESPONSE TO THE
JURISDICTIONAL OBJECTIONS OF A SPECIALLY APPEARING NONRESIDENT
DEFENDANT, THE FLORIDA SUPREME COURT RULED:  "SINCE THE INTERPRETATION
OF THE WILL IS THE PRIMARY QUESTION WITH WHICH WE ARE CONFRONTED WE ARE
IMPELLED TO HOLD THAT THE RES IS AT LEAST CONSTRUCTIVELY IN THIS STATE
AND THAT THE FLORIDA COURTS ARE EMPOWERED TO ADVISE THE TRUSTEES HOW TO
PROCEED UNDER IT AND WHAT RIGHTS THOSE AFFECTED HAVE IN IT.  FOR THE
IMMEDIATE PURPOSE OF THIS SUIT THE WILL IS THE RES AND WHEN THAT IS
VOLUNTARILY BROUGHT INTO THE COURTS OF FLORIDA TO BE CONSTRUED THE
TRUST CREATED BY IT IS TO ALL INTENTS AND PURPOSES BROUGHT WITH IT." 
118 FLA., AT 692, 160 SO., AT 10. 

FN19  WE ASSUME ARGUENDO FOR THE PURPOSE OF THIS DISCUSSION THAT THE
TRUST WAS INVALID SO THAT MRS. DONNER WAS THE "OWNER" OF THE SUBJECT
PROPERTY. 

FN20  THOUGH ANALOGOUS, THESE CASES ARE NOT SQUARELY IN POINT.  THEY
CONCERNED THE EFFICACY OF SUCH JUDGMENTS IN THE COURTS OF ANOTHER
SOVEREIGN, WHILE THE ISSUE HERE IS THE VALIDITY OF SUCH AN EXERCISE OF
JURISDICTION WITHIN THE FORUM STATE. 

FN21  SEE PENNOYER V. NEFF, 95 U.S. 714, 720-728, 732; STORY,
COMMENTARIES ON THE CONFLICT OF LAWS (6TH ED. 1865), SECS. 539, 550
551; COOLEY, CONSTITUTIONAL LIMITATIONS (1ST ED. 1868), 404-405;
RHEINSTEIN, THE CONSTITUTIONAL BASES OF JURISDICTION, 22 U. OF CHI.  L.
REV. 775, 792-793. 

FN22  SEE BAKER V. BAKER, ECCLES & CO., 242 U.S. 394, 403. 

FN23  THIS HOLDING WAS FORECAST IN PENNOYER V. NEFF, SUPRA.  WHEN
CONSIDERING THE EFFECT OF THE FOURTEENTH AMENDMENT, THIS COURT DECLARED
THAT IN ACTIONS AGAINST NONRESIDENTS SUBSTITUTED SERVICE WAS
PERMISSIBLE ONLY WHERE "PROPERTY IN THE STATE IS BROUGHT UNDER THE
CONTROL OF THE COURT, AND SUBJECTED TO ITS DISPOSITION BY PROCESS
ADAPTED TO THAT PURPOSE  ...  ."  95 U.S., AT 733. 

FN24  BY A LETTER DATED FEB. 5, 1946, MRS. DONNER CHANGED THE
COMPENSATION TO BE PAID THE TRUST ADVISOR.  APRIL 2, 1947, SHE REVOKED
THE TRUST AS TO $75,000, RETURNING THAT AMOUNT TO THE TRUSTEE DECEMBER
22, 1947.  TO THESE ACTS MAY BE ADDED THE EXECUTION OF THE TWO POWERS
OF APPOINTMENT MENTIONED EARLIER. 

FN25  THE FLORIDA SUPREME COURT'S OPINION MAKES REPEATED REFERENCES
TO THE "INVALIDITY" OF THE TRUST, AND USES OTHER LANGUAGE OF LIKE
IMPORT.  SEE 100 SO. 2D, AT 381, 382, 383, 384, 385.  ITS RULING THAT
THE 1949 AND 1950 "APPOINTMENTS" WERE INEFFECTIVE TO PASS TITLE TO THE
PROPERTY (BECAUSE LACKING THE REQUISITE TESTAMENTARY FORMALITIES)
PROCEEDED FROM THIS INITIAL RULING THAT THE TRUST AGREEMENT WAS
"INVALID," 100 SO. 2D, AT 383, OR "ILLUSORY," 100 SO. 2D, AT 384, AND
THEREFORE CREATED NO POWER OF APPOINTMENT.  THERE WAS NO SUGGESTION
THAT THE APPOINTMENT WAS INEFFECTIVE AS AN EXERCISE OF WHATEVER POWER
WAS CREATED BY THE TRUST AGREEMENT. 

FN26  SEE NOTE 6, SUPRA. 

FN27  THIS CONCLUSION MAKES UNNECESSARY ANY CONSIDERATION OF
APPELLANTS' CONTENTION THAT THE CONTACTS THE TRUST AGREEMENT HAD WITH
FLORIDA WERE SO SLIGHT THAT IT WAS A DENIAL OF DUE PROCESS OF LAW TO
DETERMINE ITS VALIDITY BY FLORIDA LAW.  SEE HOME INSURANCE CO. V. DICK,
281 U.S. 397. 

FN28  SEE NOTES 6 AND 7, SUPRA. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE BURTON AND MR. JUSTICE BRENNAN
JOIN, DISSENTING. 

I BELIEVE THE COURTS OF FLORIDA HAD POWER TO ADJUDICATE THE
EFFECTIVENESS OF THE APPOINTMENT MADE IN FLORIDA BY MRS. DONNER WITH
RESPECT TO ALL THOSE WHO WERE NOTIFIED OF THE PROCEEDINGS AND GIVEN AN
OPPORTUNITY TO BE HEARD WITHOUT VIOLATING THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  (FN1)  IF THIS IS CORRECT, IT FOLLOWS THAT THE
DELAWARE COURTS ERRED IN REFUSING TO GIVE THE PRIOR FLORIDA JUDGMENT
FULL FAITH AND CREDIT.  U.S. CONST., ART. IV, SEC. 1; 28 U.S.C. SEC.
1738. 

MRS. DONNER WAS DOMICILED IN FLORIDA FROM 1944 UNTIL HER DEATH IN
1952.  THE CONTROVERSIAL APPOINTMENT WAS MADE THERE IN 1949.  IT
PROVIDED THAT CERTAIN PERSONS WERE TO RECEIVE A SHARE OF THE PROPERTY
HELD BY THE DELAWARE "TRUSTEE" UNDER THE SO-CALLED TRUST AGREEMENT UPON
HER DEATH.  UNTIL SHE DIED MRS. DONNER RECEIVED THE ENTIRE INCOME FROM
THIS PROPERTY, AND AT ALL TIMES POSSESSED ABSOLUTE POWER TO REVOKE OR
ALTER THE APPOINTMENT AND TO DISPOSE OF THE PROPERTY AS SHE PLEASED. 
AS A PRACTICAL MATTER SHE ALSO RETAINED CONTROL OVER THE MANAGEMENT OF
THE PROPERTY, THE "TRUSTEE" IN DELAWARE BEING LITTLE MORE THAN A
CUSTODIAN.  (FN2)  A NUMBER OF THE BENEFICIARIES OF THE APPOINTMENT,
INCLUDING THOSE WHO WERE TO RECEIVE MORE THAN 95% OF THE ASSETS
INVOLVED, WERE RESIDENTS OF FLORIDA AT THE TIME THE APPOINTMENT WAS
MADE AS WELL AS WHEN THE PRESENT SUIT WAS FILED.  THE APPOINTED
PROPERTY CONSISTED OF INTANGIBLES WHICH HAD NO REAL SITUS IN ANY
PARTICULAR STATE ALTHOUGH MRS. DONNER PAID TAXES ON THE PROPERTY IN
FLORIDA. 

THE SAME DAY THE 1949 APPOINTMENT WAS MADE MRS. DONNER EXECUTED A
WILL, WHICH AFTER HER DEATH WAS DULY PROBATED IN A FLORIDA COURT.  THE
WILL CONTAINED A RESIDUARY CLAUSE PROVIDING FOR THE DISTRIBUTION OF ALL
OF HER PROPERTY NOT PREVIOUSLY BEQUEATHED, INCLUDING "ANY AND ALL
PROPERTY, RIGHTS AND INTEREST OVER WHICH I MAY HAVE POWER OF
APPOINTMENT WHICH PRIOR TO MY DEATH HAS NOT BEEN EFFECTIVELY EXERCISED
BY ME  ...  ."  THUS IF THE 1949 APPOINTMENT WAS INEFFECTIVE THE
PROPERTY INVOLVED CAME BACK INTO MRS. DONNER'S ESTATE TO BE DISTRIBUTED
UNDER THE RESIDUARY CLAUSE OF HER WILL.  AS MIGHT BE ANTICIPATED THE
PRESENT LITIGATION AROSE WHEN LEGATEES BROUGHT AN ACTION IN THE FLORIDA
COURTS SEEKING A DETERMINATION WHETHER THE APPOINTMENT WAS VALID.  THE
BENEFICIARIES OF THE APPOINTMENT, SOME OF WHOM LIVE OUTSIDE FLORIDA,
AND THE DELAWARE TRUSTEE WERE DEFENDANTS.  THEY HAD TIMELY NOTICE OF
THE SUIT AND AN ADEQUATE OPPORTUNITY TO OBTAIN COUNSEL AND APPEAR. 

IN LIGHT OF THE FOREGOING CIRCUMSTANCES IT SEEMS QUITE CLEAR TO ME
THAT THERE IS NOTHING IN THE DUE PROCESS CLAUSE WHICH DENIES FLORIDA
THE RIGHT TO DETERMINE WHETHER MRS. DONNER'S APPOINTMENT WAS VALID AS
AGAINST ITS STATUTE OF WILLS.  THIS DISPOSITION, WHICH WAS DESIGNED TO
TAKE EFFECT AFTER HER DEATH, HAD VERY CLOSE AND SUBSTANTIAL CONNECTIONS
WITH THAT STATE.  NOT ONLY WAS THE APPOINTMENT MADE IN FLORIDA BY A
DOMICILIARY OF FLORIDA, BUT THE PRIMARY BENEFICIARIES ALSO LIVED IN
THAT STATE.   IN MY VIEW IT COULD HARDLY BE DENIED THAT FLORIDA HAD
SUFFICIENT INTEREST SO THAT A COURT WITH JURISDICTION MIGHT PROPERLY
APPLY FLORIDA LAW, IF IT CHOSE, TO DETERMINE WHETHER THE APPOINTMENT
WAS EFFECTUAL.  WATSON V. EMPLOYERS LIABILITY ASSURANCE CORP., 348 U.S.
66; OSBORN V. OZLIN, 310 U.S. 53.  TRUE, THE QUESTION WHETHER THE LAW
OF A STATE CAN BE APPLIED TO A TRANSACTION IS DIFFERENT FROM THE
QUESTION WHETHER THE COURTS OF THAT STATE HAVE JURISDICTION TO ENTER A
JUDGMENT, BUT THE TWO ARE OFTEN CLOSELY RELATED AND TO A SUBSTANTIAL
DEGREE DEPEND UPON SIMILAR CONSIDERATIONS.  IT SEEMS TO ME THAT WHERE A
TRANSACTION HAS AS MUCH RELATIONSHIP TO A STATE AS MRS. DONNER'S
APPOINTMENT HAD TO FLORIDA ITS COURTS OUGHT TO HAVE POWER TO ADJUDICATE
CONTROVERSIES ARISING OUT OF THAT TRANSACTION, UNLESS LITIGATION THERE
WOULD IMPOSE SUCH A HEAVY AND DISPROPORTIONATE BURDEN ON A NONRESIDENT
DEFENDANT THAT IT WOULD OFFEND WHAT THIS COURT HAS REFERRED TO AS
"TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE."  MILLIKEN
V. MEYER, 311 U.S. 457, 463; INTERNATIONAL SHOE CO. V. WASHINGTON, 326
U.S. 310, 316.  SO FAR AS THE NONRESIDENT DEFENDANTS HERE ARE CONCERNED
I CAN SEE NOTHING WHICH APPROACHES THAT DEGREE OF UNFAIRNESS.  FLORIDA,
THE HOME OF THE PRINCIPAL CONTENDERS FOR MRS. DONNER'S LARGESS, WAS A
REASONABLY CONVENIENT FORUM FOR ALL.  (FN3)  CERTAINLY THERE IS NOTHING
FUNDAMENTALLY UNFAIR IN SUBJECTING THE CORPORATE TRUSTEE TO THE
JURISDICTION OF THE FLORIDA COURTS.  IT CHOSE TO MAINTAIN BUSINESS
RELATIONS WITH MRS. DONNER IN THAT STATE FOR EIGHT YEARS, REGULARLY
COMMUNICATING WITH HER WITH RESPECT TO THE BUSINESS OF THE TRUST
INCLUDING THE VERY APPOINTMENT IN QUESTION. 

FLORIDA'S INTEREST IN THE VALIDITY OF MRS. DONNER'S APPOINTMENT IS
MADE MORE EMPHATIC BY THE FACT THAT HER WILL IS BEING ADMINISTERED IN
THAT STATE.  IT HAS TRADITIONALLY BEEN THE RULE THAT THE STATE WHERE A
PERSON IS DOMICILED AT THE TIME OF HIS DEATH IS THE PROPER PLACE TO
DETERMINE THE VALIDITY OF HIS WILL, TO CONSTRUE ITS PROVISIONS AND TO
MARSHALL AND DISTRIBUTE HIS PERSONAL PROPERTY.  HERE FLORIDA WAS
SERIOUSLY CONCERNED WITH WINDING UP MRS. DONNER'S ESTATE AND WITH
FINALLY DETERMINING WHAT PROPERTY WAS TO BE DISTRIBUTED UNDER HER
WILL.  IN FACT THIS SUIT WAS BROUGHT FOR THAT VERY PURPOSE. 

THE COURT'S DECISION THAT FLORIDA DID NOT HAVE JURISDICTION OVER THE
TRUSTEE (AND INFERENTIALLY THE NONRESIDENT BENEFICIARIES) STEMS FROM
PRINCIPLES STATED THE BETTER PART OF A CENTURY AGO IN PENNOYER V. NEFF,
95 U.S. 714.  THAT LANDMARK CASE WAS DECIDED IN 1878, AT A TIME WHEN
BUSINESS AFFAIRS WERE PREDOMINANTLY LOCAL IN NATURE AND TRAVEL BETWEEN
STATES WAS DIFFICULT, COSTLY AND SOMETIMES EVEN DANGEROUS.  THERE THE
COURT LAID DOWN THE BROAD PRINCIPLE THAT A STATE COULD NOT SUBJECT
NONRESIDENTS TO THE JURISDICTION OF ITS COURTS UNLESS THEY WERE SERVED
WITH PROCESS WITHIN ITS BOUNDARIES OR VOLUNTARILY APPEARED, EXCEPT TO
THE EXTENT THEY HAD PROPERTY IN THE STATE.  BUT AS THE YEARS HAVE
PASSED THE CONSTANTLY INCREASING EASE AND RAPIDITY OF COMMUNICATION AND
THE TREMENDOUS GROWTH OF INTERSTATE BUSINESS ACTIVITY HAVE LED TO A
STEADY AND INEVITABLE RELAXATION OF THE STRICT LIMITS ON STATE
JURISDICTION ANNOUNCED IN THAT CASE.  IN THE COURSE OF THIS EVOLUTION
THE OLD JURISDICTIONAL LANDMARKS HAVE BEEN LEFT FAR BEHIND SO THAT IN
MANY INSTANCES STATES MAY NOW PROPERLY EXERCISE JURISDICTION OVER
NONRESIDENTS NOT AMENABLE TO SERVICE WITHIN THEIR BORDERS.  (FN4)  YET
FURTHER RELAXATION SEEMS CERTAIN.  OF COURSE WE HAVE NOT REACHED THE
POINT WHERE STATE BOUNDARIES ARE WITHOUT SIGNIFICANCE, AND I DO NOT
MEAN TO SUGGEST SUCH A VIEW HERE.  THERE IS NO NEED TO DO SO.  FOR WE
ARE DEALING WITH LITIGATION ARISING FROM A TRANSACTION THAT HAD AN
ABUNDANCE OF CLOSE AND SUBSTANTIAL CONNECTIONS WITH THE STATE OF
FLORIDA. 

PERHAPS THE DECISION MOST NEARLY IN POINT IN MULLANE V. CENTRAL
HANOVER BANK & TRUST CO., 339 U.S. 306.  IN THAT CASE THE COURT HELD
THAT A STATE COULD ENTER A PERSONAL JUDGMENT IN FAVOR OF A TRUSTEE
AGAINST NONRESIDENT BENEFICIARIES OF A TRUST EVEN THOUGH THEY WERE NOT
SERVED WITH PROCESS IN THAT STATE.  SO FAR AS APPEARED, THEIR ONLY
CONNECTION WITH THE STATE WAS THE FACT THAT THE TRUST WAS BEING
ADMINISTERED THERE.  (FN5)  IN UPHOLDING THE STATE'S JURISDICTION THE
COURT EMPHASIZED ITS GREAT INTEREST IN TRUSTS ADMINISTERED WITHIN ITS
BOUNDARIES AND GOVERNED BY ITS LAWS.  ID., AT 313.  ALSO IMPLICIT IN
THE RESULT WAS A DESIRE TO AVOID THE NECESSITY FOR MULTIPLE LITIGATION
WITH ITS ACCOMPANYING WASTE AND POSSIBILITY OF INCONSISTENT RESULTS. 
IT SEEMS TO ME THAT THE SAME KIND OF CONSIDERATION ARE PRESENT HERE
SUPPORTING FLORIDA'S JURISDICTION OVER THE NONRESIDENT DEFENDANTS. 

EVEN IF IT BE ASSUMED THAT THE COURT IS RIGHT IN ITS JURISDICTIONAL
HOLDING, I THINK ITS DISPOSITION OF THE TWO CASES IS UNJUSTIFIED.  IT
REVERSES THE JUDGMENT OF THE FLORIDA SUPREME COURT ON THE GROUND THAT
THE TRUSTEE MAY BE, BUT NEED NOT BE, AN INDISPENSABLE PARTY TO THE
FLORIDA LITIGATION UNDER FLORIDA LAW.  AT THE SAME TIME IT AFFIRMS THE
SUBSEQUENT DELAWARE JUDGMENT.  ALTHOUGH IN FORM THE FLORIDA CASE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE COURT'S
OPINION, THE EFFECT IS THAT THE FLORIDA COURTS WILL BE OBLIGED TO GIVE
FULL FAITH AND CREDIT TO THE DELAWARE JUDGMENT.  THIS MEANS THE FLORIDA
COURTS WILL NEVER HAVE AN OPPORTUNITY TO DETERMINE WHETHER THE TRUSTEE
IS AN INDISPENSABLE PARTY.  THE FLORIDA JUDGMENT IS THUS COMPLETELY
WIPED OUT EVEN AS TO THOSE PARTIES WHO MAKE THEIR HOMES IN THAT STATE,
AND EVEN THOUGH THE COURT ACKNOWLEDGES THERE IS NOTHING IN THE
CONSTITUTION WHICH PRECLUDES FLORIDA FROM ENTERING A BINDING JUDGMENT
FOR OR AGAINST THEM.  IT MAY BE ARGUED THAT THE DELAWARE JUDGMENT IS
THE FIRST TO BECOME FINAL AND THEREFORE IS ENTITLED TO PREVAIL.  BUT IT
ONLY COMES FIRST BECAUSE THE COURT MAKES IT SO.  IN MY JUDGMENT THE
PROPER THING TO DO WOULD BE TO HOLD THE DELAWARE CASE UNTIL THE FLORIDA
COURTS HAD AN OPPORTUNITY TO DECIDE WHETHER THE TRUSTEE IS AN
INDISPENSABLE PARTY.  UNDER THE CIRCUMSTANCES OF THIS CASE I THINK IT
IS QUITE PROBABLE THAT THEY WOULD SAY HE IS NOT.  SEE TRUEMAN
FERTILIZER CO. V. ALLISON, 81 SO. 2D 734.  I CAN SEE NO REASON WHY THIS
COURT SHOULD DEPRIVE FLORIDA PLAINTIFFS OF THEIR JUDGMENT AGAINST
FLORIDA DEFENDANTS ON THE BASIS OF SPECULATION ABOUT FLORIDA LAW WHICH
MIGHT WELL TURN OUT TO BE UNWARRANTED. 

FN1  IN MY JUDGMENT IT IS A MISTAKE TO DECIDE THIS CASE ON THE
ASSUMPTION THAT THE FLORIDA COURTS INVALIDATED THE TRUST ESTABLISHED IN
1935 BY MRS. DONNER WHILE SHE WAS LIVING IN PENNSYLVANIA.  IT SEEMS
QUITE CLEAR TO ME THAT THOSE COURTS HAD NO SUCH PURPOSE.  AS I
UNDERSTAND IT, ALL THEY HELD WAS THAT AN APPOINTMENT MADE IN FLORIDA
PROVIDING FOR THE DISPOSITION OF PART OF THE TRUST PROPERTY AFTER MRS.
DONNER'S DEATH WAS (1) TESTAMENTARY SINCE SHE RETAINED COMPLETE CONTROL
OVER THE APPOINTED PROPERTY UNTIL SHE DIED, AND (2) INEFFECTIVE BECAUSE
NOT EXECUTED IN ACCORDANCE WITH THE FLORIDA STATUTE OF WILLS. 

FN2  AMONG OTHER THINGS MRS. DONNER RESERVED THE RIGHT TO APPOINT
"ADVISERS" SERVING AT HER SUFFERANCE WHO CONTROLLED ALL PURCHASES,
SALES AND INVESTMENTS BY THE "TRUSTEE."  EVIDENCE BEFORE THE DELAWARE
COURTS INDICATED THAT THESE ADVISERS, NOT THE DELAWARE "TRUSTEE,"
ACTUALLY MADE ALL DECISIONS WITH RESPECT TO TRANSACTIONS AFFECTING THE
"TRUST" PROPERTY AND THAT THE "TRUSTEE" MECHANICALLY ACTED AS THEY
DIRECTED. 

FN3  THE SUGGESTION IS MADE THAT DELAWARE WAS A MORE SUITABLE FORUM,
BUT THE PLAIN FACT IS THAT NONE OF THE BENEFICIARIES OR LEGATEES HAS
EVER RESIDED IN THAT STATE. 

FN4  SEE, E.G., MCGEE V. INTERNATIONAL LIFE INS. CO., 355 U.S. 220;
TRAVELERS HEALTH ASSN.  V. VIRGINIA EX REL. STATE CORPORATION COMM'N,
339 U.S. 643; INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310;
MILLIKEN V. MEYER, 311 U.S. 457; HENRY L. DOHERTY & CO. V. GOODMAN, 294
U.S. 623; HESS V. PAWLOSKI, 274 U.S. 352. 

FN5  THERE WAS NO BASIS FOR IN REM JURISDICTION SINCE THE LITIGATION
CONCERNED THE PERSONAL LIABILITY OF THE TRUSTEE AND DID NOT INVOLVE THE
TRUST PROPERTY. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE TESTATRIX DIED DOMICILED IN FLORIDA.  HER WILL, MADE AFTER SHE
HAD ACQUIRED A DOMICILE IN FLORIDA, WAS PROBATED THERE.  PRIOR TO THE
TIME SHE ESTABLISHED A DOMICILE IN FLORIDA SHE EXECUTED A TRUST
INSTRUMENT IN DELAWARE.  BY ITS TERMS SHE WAS TO RECEIVE THE INCOME
DURING HER LIFE.  ON HER DEATH THE PRINCIPAL AND UNDISTRIBUTED INCOME
WERE TO GO AS PROVIDED IN ANY POWER OF APPOINTMENT OR, FAILING THAT, IN
HER LAST WILL AND TESTAMENT. 

AFTER SHE HAD BECOME DOMICILED IN FLORIDA SHE EXECUTED A POWER OF
APPOINTMENT; AND SHE ALSO PROVIDED IN HER WILL THAT IF THE POWER OF
APPOINTMENT HAD NOT BEEN EFFECTIVELY EXERCISED, THE PROPERTY UNDER THE
TRUST, CONSISTING OF INTANGIBLES, SHOULD PASS TO CERTAIN DESIGNATED
TRUSTS. 

THE FLORIDA COURT HELD THAT THE POWER OF APPOINTMENT WAS TESTAMENTARY
IN CHARACTER AND NOT BEING A VALID TESTAMENTARY DISPOSITION FOR LACK OF
THE REQUISITE WITNESSES, FAILED AS A WILL UNDER FLORIDA LAW.  THEREFORE
THE PROPERTY PASSED UNDER THE WILL.  100 SO. 2D 378. 

DISTRIBUTION OF THE ASSETS OF THE ESTATE COULD NOT BE MADE WITHOUT
DETERMINING THE VALIDITY OF THE POWER OF APPOINTMENT.  THE POWER OF
APPOINTMENT, BEING INTEGRATED WITH THE WILL, WAS AS MUCH SUBJECT TO
CONSTRUCTION AND INTERPRETATION BY THE FLORIDA COURT AS THE WILL
ITSELF.  OF COURSE ONE NOT A PARTY OR PRIVY TO THE FLORIDA PROCEEDINGS
IS NOT BOUND BY IT AND CAN SEPARATELY LITIGATE THE RIGHT TO ASSETS IN
OTHER STATES.  SEE RILEY V. NEW YORK TRUST CO., 315 U.S. 343; BAKER V.
BAKER, ECCLES & CO., 242 U.S. 394.  BUT WE HAVE NO SUCH SITUATION
HERE.  THE TRUSTEE OF THE TRUST WAS IN PRIVITY WITH THE DECEASED.  SHE
WAS THE SETTLOR; AND UNDER THE TRUST, THE TRUSTEE WAS TO DO HER
BIDDING.  THAT IS TO SAY, THE TRUSTEE, THOUGH MANAGING THE RES DURING
THE LIFE OF THE SETTLOR, WAS ON HER DEATH TO TRANSFER THE PROPERTY TO
SUCH PERSONS AS THE SETTLOR DESIGNATED BY HER POWER OF APPOINTMENT OR
BY HER LAST WILL AND TESTAMENT, OR, FAILING THAT, TO DESIGNATED CLASSES
OF PERSONS.  SO FAR AS THE PRESENT CONTROVERSY IS CONCERNED THE TRUSTEE
WAS PURELY AND SIMPLY A STAKEHOLDER OR AN AGENT HOLDING ASSETS OF THE
SETTLOR TO DISPOSE OF AS SHE DESIGNATED.  IT HAD A COMMUNITY OF
INTEREST WITH THE DECEASED.  I SEE NO REASON THEREFORE WHY FLORIDA
COULD NOT SAY THAT THE DECEASED AND HER EXECUTRIX MAY STAND IN JUDGMENT
FOR THE TRUSTEE SO FAR AS THE DISPOSITION OF THE PROPERTY UNDER THE
POWER OF APPOINTMENT AND THE WILL IS CONCERNED.  THE QUESTION IN CASES
OF THIS KIND IS WHETHER THE PROCEDURE IS FAIR AND JUST, CONSIDERING THE
INTERESTS OF THE PARTIES.  CF. HANSBERRY V. LEE, 311 U.S. 32; MULLANE
V. CENTRAL HANOVER TRUST CO., 339 U.S. 306, 312-317.  FLORIDA HAS SUCH
A PLAIN AND COMPELLING RELATION TO THESE OUT-OF-STATE INTANGIBLES (CF.
CURRY V. MCCANLESS, 307 U.S. 357), AND THE NEXUS BETWEEN THE SETTLOR
AND TRUSTEE IS SO CLOSE, AS TO GIVE FLORIDA THE RIGHT TO MAKE THE
CONTROLLING DETERMINATION EVEN WITHOUT PERSONAL SERVICE OVER THE
TRUSTEE AND THOSE WHO CLAIM UNDER IT.  WE MUST REMEMBER THIS IS NOT A
SUIT TO IMPOSE LIABILITY ON THE DELAWARE TRUSTEE OR ON ANY OTHER ABSENT
PERSON.  IT IS MERELY A SUIT TO DETERMINE INTERESTS IN THOSE
INTANGIBLES.  CF.  MULLANE V. CENTRAL HANOVER TRUST CO., SUPRA, AT
313.  UNDER CLOSELY ANALOGOUS FACTS THE CALIFORNIA SUPREME COURT HELD
IN ATKINSON V. SUPERIOR COURT, 49 CAL. 2D 338, 316 P.2D 960, THAT
CALIFORNIA HAD JURISDICTION OVER AN ABSENT TRUSTEE.  I WOULD HOLD THE
SAME HERE.  THE DECEDENT WAS DOMICILED IN FLORIDA; MOST OF THE LEGATEES
ARE THERE; AND THE ABSENT TRUSTEE THROUGH WHOM THE OTHERS CLAIM WAS AN
AGENCY SO CLOSE TO THE DECEDENT AS TO BE HELD TO BE PRIVY WITH HER - IN
OTHER WORDS SO IDENTIFIED IN INTEREST WITH HER AS TO REPRESENT THE SAME
LEGAL RIGHT. 
..END :








MCKINNEY V. MISSOURI-KANSAS-TEXAS RAILROAD CO. 357 U.S. 265 


NO. 93.  ARGUED JANUARY 27, 1958 - DECIDED JUNE 23, 1958 - 240 F.2D 8,
AFFIRMED. 


UNDER SEC. 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT,
PETITIONER, WHO HAD BEEN PROMOTED BY RESPONDENT RAILROAD TO AN ADVANCED
POSITION UPON HIS RETURN FROM MILITARY SERVICE, THOUGH UNDER THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN HIS UNION AND THE RAILROAD SUCH
PROMOTION DEPENDED ON FITNESS AND ABILITY, WAS NOT ENTITLED TO
SENIORITY IN HIS NEW POSITION FROM THE DATE HE WOULD HAVE HAD THE
OPPORTUNITY TO QUALIFY FOR IT HAD HE REMAINED IN THE CONTINUOUS
EMPLOYMENT OF THE RAILROAD.  PP. 266-274. 

(A)  BEFORE BRINGING SUIT UNDER SEC. 9(D) OF THE ACT PETITIONER WAS
NOT OBLIGED TO PURSUE REMEDIES POSSIBLY AVAILABLE UNDER THE GRIEVANCE
PROCEDURE SET FORTH IN THE COLLECTIVE BARGAINING AGREEMENT OR BEFORE
THE NATIONAL RAILROAD ADJUSTMENT BOARD.  PP. 268-270. 

(B)  SINCE PROMOTION TO THE HIGHER POSITION IN THIS CASE WAS NOT
AUTOMATIC BUT WAS DEPENDENT ON FITNESS AND ABILITY, PETITIONER RECEIVED
A PROMOTION WHICH WAS NOT REQUIRED UNDER THE ACT, AND RESPONDENT WAS
NOT OBLIGED TO GIVE HIM A SENIORITY DATE EARLIER THAN THAT TO WHICH ANY
EMPLOYEE SIMILARLY PROMOTED WOULD HAVE BEEN ENTITLED.  PP. 270-273. 

(C)  BECAUSE HIS COMPLAINT WAS DISMISSED AND HE HAD NO OPPORTUNITY TO
PROVE THAT, BY CUSTOM AND PRACTICE UNDER THE COLLECTIVE BARGAINING
AGREEMENT, HE WOULD NECESSARILY HAVE BEEN PROMOTED TO THE NEW POSITION
HAD HE REMAINED CONTINUOUSLY IN RESPONDENT'S EMPLOY, PETITIONER IS
GRANTED LEAVE TO AMEND HIS COMPLAINT TO ALLEGE, IF SUCH BE THE FACT,
THAT, IN ACTUAL PRACTICE UNDER THE COLLECTIVE BARGAINING AGREEMENT, HIS
PROMOTION WAS AUTOMATIC.  PP. 273-274. 

MCKINNEY V. MISSOURI-KANSAS-TEXAS RAILROAD CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES OUT OF PROCEEDINGS TO ENFORCE THE CLAIM OF A VETERAN
TO RE-EMPLOYMENT RIGHTS UNDER SEC. 9 OF THE UNIVERSAL MILITARY TRAINING
AND SERVICE ACT.  62 STAT. 604, 614-618, AS AMENDED, 50 U.S.C. APP.
SEC. 459, AS AMENDED, 50 U.S.C. APP. (SUPP. V) SEC. 459.  MORE
SPECIFICALLY, PETITIONER CLAIMS THAT HE HAS BEEN DEPRIVED OF SENIORITY
RIGHTS TO WHICH HE IS ENTITLED UNDER THE STATUTE AND THE COLLECTIVE
BARGAINING AGREEMENT IN FORCE BETWEEN HIS EMPLOYER, RESPONDENT
RAILROAD, AND THE UNION REPRESENTING ITS EMPLOYEES. 

MADE PART OF THE COMPLAINT FILED IN THE DISTRICT COURT ARE PROVISIONS
OF THE COLLECTIVE BARGAINING AGREEMENT REGULATING THE RELATIONS BETWEEN
RESPONDENT AND ITS EMPLOYEES, ESPECIALLY PROVISIONS RELATING TO
SENIORITY AND PROMOTIONS.  EMPLOYEES ARE DIVIDED INTO THREE GROUPS
ACCORDING TO THE FUNCTIONS THEY PERFORM, WITH SENIORITY DEFINED WITHIN
EACH GROUP.  RULE 10 PROVIDES THAT WHEN NEW POSITIONS ARE AVAILABLE OR
VACANCIES OCCUR IN EXISTING POSITIONS, SUCH POSITIONS WILL BE
"BULLETINED" BY THE EMPLOYER AND EMPLOYEES MAY BID THEREFOR.  RULE
1(3)(A) PROVIDES THAT, "PROMOTION WILL BE CONFINED TO THE GROUP  ...
WITH THE EXCEPTION THAT EMPLOYES ON POSITIONS ENUMERATED IN GROUPS TWO
(2) WILL BE GIVEN PREFERENCE OVER NONEMPLOYES IN THE ASSIGNMENT TO
POSITIONS IN GROUP ONE (1), BASED UPON FITNESS AND ABILITY  ...  ." 
RULE 15 STATES THAT, "AN EMPLOYE RETURNING AFTER LEAVE OF ABSENCE MAY
RETURN TO FORMER POSITION OR MAY, UPON RETURN  ...  EXERCISE SENIORITY
RIGHTS TO ANY POSITION BULLETINED DURING SUCH ABSENCE." 

THE COMPLAINT ALLEGES THAT PETITIONER WAS EMPLOYED BY RESPONDENT AS A
RELIEF CLERK-CHIEF CALLER, A POSITION CLASSIFIED UNDER THE COLLECTIVE
BARGAINING AGREEMENT IN GROUP 2.  ON SEPTEMBER 26, 1950, HE LEFT HIS
EMPLOYMENT FOR INDUCTION IN THE ARMED FORCES OF THE UNITED STATES. 
PETITIONER WAS STILL IN THE ARMED FORCES WHEN RESPONDENT, PURSUANT TO
THE PROCEDURE SET FORTH IN RULE 10 OF THE COLLECTIVE BARGAINING
AGREEMENT, BULLETINED TWO GROUP 1 POSITIONS TO BE FILLED.  ON SEPTEMBER
8, 1952, THE GROUP 1 POSITION OF BILL CLERK WAS BULLETINED AND A
NONEMPLOYEE ASSIGNED TO IT ON SEPTEMBER 15.  ON SEPTEMBER 10, 1952, THE
GROUP 1 POSITION OF ASSISTANT CASHIER WAS BULLETINED AND NONEMPLOYEES
ASSIGNED TO IT ON SEPTEMBER 22.  PETITIONER WAS SEPARATED FROM THE
MILITARY SERVICE ON SEPTEMBER 25, 1952, AND ON OCTOBER 1 APPLIED FOR RE
EMPLOYMENT WITH RESPONDENT.  HE WAS PLACED IN THE GROUP 1 POSITION OF
ASSISTANT CASHIER WITH A GROUP 1 SENORITY DATE OF OCTOBER 7, 1952. 
SUBSEQUENTLY THIS POSITION WAS ABOLISHED AND PETITIONER REDUCED TO A
GROUP 2 POSITION.  RESPONDENT REFUSED TO ALLOW PETITIONER TO EXERCISE
CLAIMED SENIORITY RIGHTS TO PLACE HIMSELF IN THE GROUP 1 POSITION OF
BILL CLERK IN PLACE OF THE NONEMPLOYEE WHO HAD BEEN ASSIGNED TO THAT
POSITION ON SEPTEMBER 15, 1952. 

IN THE DISTRICT COURT PETITIONER CONTENDED THAT THE GROUP 1 SENORITY
DATE ASSIGNED HIM ON RE-EMPLOYMENT, OCTOBER 7, 1952, WAS ERRONEOUS, AND
THAT UNDER SEC. 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT,
SUPRA, HE WAS ENTITLED TO A SENIORITY DATE OF SEPTEMBER 8 OR SEPTEMBER
10, 1952, THE DATES ON WHICH, IF HE HAD THEN BEEN EMPLOYED BY
RESPONDENT, HE COULD HAVE APPLIED FOR THE BULLETINED GROUP 1
POSITIONS.  SUCH A SENIORITY DATE, ACCORDING TO PETITIONER, WOULD HAVE
ENTITLED HIM TO REPLACE THE NONEMPLOYEE AS BILL CLERK WHEN THE POSITION
OF ASSISTANT CASHIER WAS ABOLISHED, AND THUS AVOIDED REDUCTION TO GROUP
2. 

PETITIONER PRAYED THE DISTRICT COURT TO ORDER RESPONDENT TO ASSIGN
HIM THE REQUESTED EARLIER SENIORITY DATE AND TO PERMIT HIM TO PLACE
HIMSELF IN THE POSITION OF BILL CLERK, AND IN ADDITION HE SOUGHT
COMPENSATION FOR WAGES LOST AS A RESULT OF BEING DEPRIVED OF THE GROUP
1 POSITION.  THE DISTRICT COURT DISMISSED THE COMPLAINT FOR FAILURE TO
STATE A CAUSE OF ACTION UNDER THE UNIVERSAL MILITARY TRAINING AND
SERVICE ACT, AND THE COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED. 
240 F.2D 8.  BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED IN THE
ADMINISTRATION OF THE STATUTE AND THE PROTECTION OF VETERANS' RIGHTS
THEREUNDER, WE GRANTED CERTIORARI.  353 U.S. 948. 

THE COURT OF APPEALS CORRECTLY HELD THAT PETITIONER WAS NOT OBLIGED,
BEFORE BRINGING SUIT IN THE DISTRICT COURT UNDER SEC. 9(D) OF THE ACT,
62 STAT. 616, AS AMENDED, 50 U.S.C. APP. (SUPP. V) SEC. 459(D), TO
PURSUE REMEDIES POSSIBLY AVAILABLE UNDER THE GRIEVANCE PROCEDURE SET
FORTH IN THE COLLECTIVE BARGAINING AGREEMENT OR BEFORE THE NATIONAL
RAILROAD ADJUSTMENT BOARD.  SEE 48 STAT. 1189-1193, 45 U.S.C. SEC.
153.  THE RIGHTS PETITIONER ASSERTS ARE RIGHTS CREATED BY FEDERAL
STATUTE EVEN THOUGH THEIR DETERMINATION MAY NECESSARILY INVOLVE
INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT.  ALTHOUGH THE
STATUTE DOES NOT ITSELF CREATE A SENIORITY SYSTEM, BUT ACCEPTS THAT SET
FORTH IN THE COLLECTIVE BARGAINING AGREEMENT, IT REQUIRES THE
APPLICATION OF THE PRINCIPLES OF THAT SYSTEM IN A MANNER THAT WILL NOT
DEPRIVE THE VETERAN OF THE BENEFITS, IN TERMS OF RESTORATION TO
POSITION AND ADVANCEMENT IN STATUS, FOR WHICH CONGRESS HAS PROVIDED. 
PETITIONER SUES NOT SIMPLY AS AN EMPLOYEE UNDER A COLLECTIVE BARGAINING
AGREEMENT, BUT AS A VETERAN ASSERTING SPECIAL RIGHTS BESTOWED UPON HIM
IN FURTHERANCE OF A FEDERAL POLICY TO PROTECT THOSE WHO HAVE SERVED IN
THE ARMED FORCES. 

FOR THE EFFECTIVE PROTECTION OF THESE DISTINCTIVELY FEDERAL RIGHTS,
CONGRESS PROVIDED IN SEC. 9 (D) (FN1) OF THE ACT THAT IF ANY EMPLOYER
FAILS TO COMPLY WITH THE PROVISIONS OF THE STATUTE, THE DISTRICT COURT,
UPON THE FILING OF A PETITION BY A PERSON ENTITLED TO THE BENEFITS OF
THE ACT, HAS JURISDICTION TO COMPEL COMPLIANCE AND TO COMPENSATE FOR
LOSS OF WAGES.  THE COURT IS ENJOINED TO ORDER SPEEDY HEARING IN ANY
SUCH CASE AND TO ADVANCE IT ON THE CALENDAR, AND THE UNITED STATES
ATTORNEY MUST APPEAR AND ACT FOR THE VETERAN IN THE PROSECUTION OF HIS
CLAIM IF REASONABLY SATISFIED THAT HE IS ENTITLED TO THE BENEFITS OF
THE ACT.  NOWHERE IS IT SUGGESTED THAT BEFORE A VETERAN CAN OBTAIN THE
BENEFIT OF THIS EXPEDITIOUS PROCEDURE AND THE REMEDIES AVAILABLE TO HIM
IN THE DISTRICT COURT HE MUST EXHAUST OTHER AVENUES OF RELIEF POSSIBLY
OPEN UNDER A COLLECTIVE BARGAINING AGREEMENT OR BEFORE A TRIBUNAL SUCH
AS THE NATIONAL RAILWAY ADJUSTMENT BOARD.  ON THE CONTRARY, THE
STATUTORY SCHEME CONTEMPLATES THE SPEEDY VINDICATION OF THE VETERAN'S
RIGHTS BY A SUIT BROUGHT IMMEDIATELY IN THE DISTRICT COURT, ADVANCED ON
THE CALENDAR BEFORE OTHER LITIGATION, AND PROSECUTED WITH THE
ASSISTANCE OF THE UNITED STATES ATTORNEY.  ONLY THUS, IT EVIDENTLY WAS
THOUGHT, WOULD ADEQUATE PROTECTION BE ASSURED THE VETERAN, SINCE DELAY
IN THE VINDICATION OF RE-EMPLOYMENT RIGHTS MIGHT OFTEN RESULT IN
HARDSHIP TO THE VETERAN AND THE DEFEAT, FOR ALL PRACTICAL PURPOSES, OF
THE RIGHTS CONGRESS SOUGHT TO GIVE HIM.  TO INSIST THAT THE VETERAN
FIRST EXHAUST OTHER POSSIBLY LENGTHY AND DOUBTFUL PROCEDURES ON THE
GROUND THAT HIS CLAIM IS NOT DIFFERENT FROM ANY OTHER EMPLOYEE
GRIEVANCE OR CLAIM UNDER A COLLECTIVE BARGAINING AGREEMENT WOULD IGNORE
THE ACTUAL CHARACTER OF THE RIGHTS ASSERTED AND DEFEAT THE LIBERAL
PROCEDURAL POLICY CLEARLY MANIFESTED IN THE STATUTE FOR THE VINDICATION
OF THOSE RIGHTS. 

WHICH PETITIONER RELIES, REQUIRES THAT A RETURNING VETERAN WHO HAS BEEN
SEPARATED FROM THE SERVICE UNDER THE CONDITIONS SET FORTH IN THE
STATUTE BE RESTORED BY HIS EMPLOYER TO HIS FORMER POSITION OR TO A
POSITION OF LIKE SENIORITY, STATUS, AND PAY.  HE IS NOT TO BE
DISADVANTAGED BY SERVING HIS COUNTRY.  SECTION 9(C)(1) STATES THAT HE
SHALL BE RESTORED "WITHOUT LOSS OF SENIORITY."  (FN2)  IN FISHGOLD V.
SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. 275, 284-285, AND OAKLEY V.
LOUISVILLE & N.R. CO., 338 U.S. 278, 283, THE SAME PROVISION IN AN
EARLIER ACT WAS INTERPRETED TO MEAN THAT A RETURNING VETERAN DOES NOT
STEP BACK AT THE EXACT POINT HE LEFT HIS EMPLOYMENT, BUT RATHER IS
ENTITLED TO "A POSITION WHICH, ON THE MOVING ESCALATOR OF TERMS AND
CONDITIONS AFFECTING THAT PARTICULAR EMPLOYMENT, WOULD BE COMPARABLE TO
THE POSITION WHICH HE WOULD HAVE HELD IF HE HAD REMAINED CONTINUOUSLY
IN HIS CIVILIAN EMPLOYMENT."  338 U.S., AT 283.  THIS INTERPRETATION IS
NOW EMBODIED IN SEC. 9(C)(2) OF THE PRESENT ACT.  (FN3) 

HOWEVER, SEC. 9(C) DOES NOT GUARANTEE THE RETURNING SERVICEMAN A
PERFECT REPRODUCTION OF THE CIVILIAN EMPLOYMENT THAT MIGHT HAVE BEEN
HIS IF HE HAD NOT BEEN CALLED TO THE COLORS.  MUCH THERE IS THAT MIGHT
HAVE FLOWED FROM EXPERIENCE, EFFORT, OR CHANCE TO WHICH HE CANNOT LAY
CLAIM UNDER THE STATUTE.  SECTION 9(C) DOES NOT ASSURE HIM THAT THE
PAST WITH ALL ITS POSSIBILITIES OF BETTERMENT WILL BE RECALLED.  ITS
VERY IMPORTANT BUT LIMITED PURPOSE IS TO ASSURE THAT THOSE CHANGES AND
ADVANCEMENTS IN STATUS THAT WOULD NECESSARILY HAVE OCCURRED SIMPLY BY
VIRTUE OF CONTINUED EMPLOYMENT WILL NOT BE DENIED THE VETERAN BECAUSE
OF HIS ABSENCE IN THE MILITARY SERVICE.  THE STATUTE MANIFESTS NO
PURPOSE TO GIVE TO THE VETERAN A STATUS THAT HE COULD NOT HAVE ATTAINED
AS OF RIGHT, WITHIN THE SYSTEM OF HIS EMPLOYMENT, EVEN IF HE HAD NOT
BEEN INDUCTED INTO THE ARMED FORCES BUT CONTINUED IN HIS CIVILIAN
EMPLOYMENT. 

THUS, ON APPLICATION FOR RE-EMPLOYMENT A VETERAN IS NOT ENTITLED TO
DEMAND THAT HE BE ASSIGNED A POSITION HIGHER THAN THAT HE FORMERLY HELD
WHEN PROMOTION TO SUCH A POSITION DEPENDS, NOT SIMPLY ON SENIORITY OR
SOME OTHER FORM OF AUTOMATIC PROGRESSION, BUT ON THE EXERCISE OF
DISCRETION ON THE PART OF THE EMPLOYER.  ON HIS RETURN FROM SERVICE,
PETITIONER IN THE PRESENT CASE COULD NOT HAVE DEMANDED UNDER THE
STATUTE THAT RESPONDENT PLACE HIM IN ANY GROUP 1 POSITION.  PROMOTION
TO A GROUP 1 POSITION FROM GROUP 2, IN WHICH PETITIONER HAD FORMERLY
BEEN EMPLOYED, IS NOT DEPENDENT SIMPLY ON SENIORITY.  UNDER RULE 1
(3)(A) OF THE COLLECTIVE BARGAINING AGREEMENT IT IS DEPENDENT ON
FITNESS AND ABILITY AND THE EXERCISE OF A DISCRIMINATING MANAGERIAL
CHOICE.  COLLECTIVE BARGAINING AGREEMENTS THAT INCLUDE SUCH FAMILIAR
PROVISIONS ARE PRESUPPOSED BY THE STATUTE, AND IT IS IN THEIR CONTEXT
THAT IT MUST BE PLACED.  SEE AERONAUTICAL LODGE V. CAMPBELL, 337 U.S.
521, 527.  PETITIONER WAS NOT ENTITLED TO A GROUP 1 POSITION SIMPLY
BECAUSE IN HIS ABSENCE IT HAD BEEN BULLETINED, AND IF HE HAD THEN BEEN
EMPLOYED HE MIGHT HAVE APPLIED FOR IT, AND RESPONDENT MIGHT HAVE FOUND
THAT HE POSSESSED THE REQUISITE FITNESS AND ABILITY.  THE STATUTE DOES
NOT ENVISAGE OVERRIDING AN EMPLOYER'S DISCRETIONARY CHOICE BY ANY SUCH
MANDATORY PROMOTION.  NOR DOES IT SANCTION INTERFERING WITH AND
DISRUPTING THE USUAL, CAREFULLY ADJUSTED RELATIONS AMONG THE EMPLOYEES
THEMSELVES REGARDING OPPORTUNITIES FOR ADVANCEMENT. 

THE PRECISE QUESTION IN THE PRESENT CASE IS NOT ESSENTIALLY
DIFFERENT.  PETITIONER WAS NOT, BY VIRTUE OF THE FACT THAT THE GROUP 1
POSITION OF ASSISTANT CASHIER HAD BEEN BULLETINED IN HIS ABSENCE,
ENTITLED TO THAT POSITION ON RE-EMPLOYMENT.  RULE 15 OF THE COLLECTIVE
BARGAINING AGREEMENT STATES THAT AN EMPLOYEE WHO RETURNS FROM LEAVE OF
ABSENCE MAY "EXERCISE SENIORITY RIGHTS TO ANY POSITION BULLETINED
DURING SUCH ABSENCE."  BUT SENIORITY ALONE DOES NOT, UNDER RULE
1(3)(A), ENTITLE AN EMPLOYEE TO MOVE FROM GROUP 2 TO GROUP 1; FITNESS
AND ABILITY ARE ALSO RELEVANT.  RESPONDENT ASSERTS THAT PETITIONER WAS
IN FACT ASSIGNED TO THE GROUP 1 POSITION OF ASSISTANT CASHIER THROUGH A
MISTAKE OF LAW.  WHATEVER THE REASON, THE FACT OF EMPLOYMENT IN THE
HIGHER POSITION DID NOT ENLARGE PETITIONER'S RIGHTS UNDER EITHER THE
COLLECTIVE BARGAINING AGREEMENT OR THE STATUTE.  SINCE RESPONDENT WAS
NOT OBLIGATED TO GIVE PETITIONER THE HIGHER POSITION AT ALL, WHEN IT
DID SO IT WAS NOT BOUND TO GIVE HIM A SENIORITY DATE EARLIER THAN THAT
TO WHICH ANY EMPLOYEE SIMILARLY PROMOTED WOULD HAVE BEEN ENTITLED.  IN
THIS CASE THAT WAS THE DATE ON WHICH PETITIONER'S PAY IN THE GROUP 1
POSITION COMMENCED, AND NOT A MONTH EARLIER WHEN THE POSITION HAD FIRST
BEEN BULLETINED. 

PETITIONER ARGUES THAT BECAUSE THE COMPLAINT WAS SUMMARILY DISMISSED
ON MOTION HE DID NOT HAVE THE OPPORTUNITY TO PROVE THAT BY CUSTOM AND
PRACTICE UNDER THE COLLECTIVE BARGAINING AGREEMENT HE WOULD NECESSARILY
HAVE BEEN ASSIGNED TO THE GROUP 1 POSITION OF BILL CLERK OR ASSISTANT
CASHIER HAD HE REMAINED CONTINUOUSLY IN RESPONDENT'S EMPLOY.  HE STATES
THAT INTERPRETATION AND PRACTICE BY THE PARTIES TO AN AGREEMENT ARE
FREQUENTLY THE MOST RELIABLE BASES FOR DETERMINING RIGHTS CLAIMED TO
ARISE UNDER IT.  ACCORDINGLY, WE AFFIRM THE JUDGMENT, BUT WITH LEAVE TO
PETITIONER TO AMEND HIS COMPLAINT TO ALLEGE, IF SUCH BE THE FACT, THAT
IN ACTUAL PRACTICE UNDER THE COLLECTIVE BARGAINING AGREEMENT
ADVANCEMENT FROM GROUP 2 TO GROUP 1 IS AUTOMATIC. 

THE JUDGMENT IS AFFIRMED. 

FN1  "IN CASE ANY PRIVATE EMPLOYER FAILS OR REFUSES TO COMPLY WITH
THE PROVISIONS OF SUBSECTION (B), (C)(1) OR SUBSECTION (G) OF THIS
WHICH SUCH PRIVATE EMPLOYER MAINTAINS A PLACE OF BUSINESS SHALL HAVE
POWER, UPON THE FILING OF A MOTION, PETITION, OR OTHER APPROPRIATE
PLEADING BY THE PERSON ENTITLED TO THE BENEFITS OF SUCH PROVISIONS,
SPECIFICALLY TO REQUIRE SUCH EMPLOYER TO COMPLY WITH SUCH PROVISIONS
AND TO COMPENSATE SUCH PERSON FOR ANY LOSS OF WAGES OR BENEFITS
SUFFERED BY REASON OF SUCH EMPLOYER'S UNLAWFUL ACTION:  PROVIDED, THAT
ANY SUCH COMPENSATION SHALL BE IN ADDITION TO AND SHALL NOT BE DEEMED
TO DIMINISH ANY OF THE BENEFITS OF SUCH PROVISIONS.  THE COURT SHALL
ORDER SPEEDY HEARING IN ANY SUCH CASE AND SHALL ADVANCE IT ON THE
CALENDAR.  UPON APPLICATION TO THE UNITED STATES ATTORNEY OR OFFICIAL,
IF REASONABLY SATISFIED THAT THE PERSON SO APPLYING IS ENTITLED TO SUCH
BENEFITS, SHALL APPEAR AND ACT AS ATTORNEY FOR SUCH PERSON IN THE
AMICABLE ADJUSTMENT OF THE CLAIM OR IN THE FILING OF ANY MOTION,
PETITION, OR OTHER APPROPRIATE PLEADING AND THE PROSECUTION THEREOF
SPECIFICALLY TO REQUIRE SUCH EMPLOYER TO COMPLY WITH SUCH PROVISIONS:
PROVIDED, THAT NO FEES OR COURT COSTS SHALL BE TAXED AGAINST ANY PERSON
WHO MAY APPLY FOR SUCH BENEFITS:  PROVIDED FURTHER, THAT ONLY THE
EMPLOYER SHALL BE DEEMED A NECESSARY PARTY RESPONDENT TO ANY SUCH
ACTION."  62 STAT. 616, AS AMENDED, 50 U.S.C. APP. (SUPP. V) SEC.
459(D). 

FN2  "ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE
CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS
PERIOD OF TRAINING AND SERVICE IN THE ARMED FORCES, SHALL BE SO
RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN
INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO
ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR
LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON
WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH
POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION."  62
STAT. 604, 615, AS AMENDED, 50 U.S.C. APP. SEC. 459(C)(1). 

FN3  "IT IS HEREBY DECLARED TO BE THE SENSE OF THE CONGRESS THAT ANY
PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS
OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHOULD BE SO RESTORED IN SUCH
MANNER AS TO GIVE HIM SUCH STATUS IN HIS EMPLOYMENT AS HE WOULD HAVE
ENJOYED IF HE HAD CONTINUED IN SUCH EMPLOYMENT CONTINUOUSLY FROM THE
TIME OF HIS ENTERING THE ARMED FORCES UNTIL THE TIME OF HIS RESTORATION
TO SUCH EMPLOYMENT."  62 STAT.  604, 615-616, AS AMENDED, 50 U.S.C.
APP. SEC. 459(C)(2). 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT ON THE MERITS. 
..END :



IVANHOE IRRIGATION DISTRICT V. MCCRACKEN 357 U.S. 275 


NO. 122.  ARGUED APRIL 29, 1958 - DECIDED JUNE 23, 1958* - 47 CAL. 2D
597, 681, 695, 699, 306 P.2D 824, 886, 894, 875, REVERSED. 

*TOGETHER WITH NO. 123, MADERA IRRIGATION DISTRICT ET AL. V. STEINER
ET AL., NO. 124, MADERA IRRIGATION DISTRICT V. ALBONICO ET UX., AND NO.
125, SANTA BARBARA COUNTY WATER AGENCY V. BALAAM ET AL., ALSO ON
APPEALS FROM THE SAME COURT. 


IN THESE CASES INVOLVING TWO FEDERAL RECLAMATION PROJECTS IN
CALIFORNIA, THE SUPREME COURT OF CALIFORNIA REFUSED TO CONFIRM CERTAIN
CONTRACTS ENTERED INTO BETWEEN THE UNITED STATES ON THE ONE HAND AND
TWO STATE IRRIGATION DISTRICTS AND A STATE WATER AGENCY ON THE OTHER
HAND, BECAUSE IT FOUND THEM INVALID ON SEVERAL GROUNDS.  TAKING THE
POSITION THAT SEC. 8 OF THE RECLAMATION ACT OF 1902 REQUIRED THE
APPLICATION OF STATE LAW, IT HELD THAT SEC. 5, PROVIDING GENERALLY THAT
NO RIGHT TO THE USE OF WATER SHALL BE SOLD FOR LANDS IN EXCESS OF 160
ACRES IN SINGLE OWNERSHIP, WAS INAPPLICABLE BECAUSE IN CONFLICT WITH
STATE LAW AND THAT, THEREFORE, THE EXCESS LANDS PROVISIONS OF THE
CONTRACTS WERE INVALID.  IT ALSO HELD THAT THE PROVISIONS PURSUANT TO
SEC. 9 OF THE RECLAMATION PROJECT ACT OF 1939 FOR REPAYMENT TO THE
UNITED STATES OF PART OF THE FUNDS EXPENDED ON THE CONSTRUCTION AND
OPERATION OF RECLAMATION WORKS WERE INVALID, ON THE GROUNDS THAT NO
PROVISION WAS MADE FOR REPAYMENT OF A STATED AMOUNT WITHIN 40 YEARS OR
FOR TRANSFER OF TITLE TO THE DISTRIBUTION SYSTEMS TO THE RESPECTIVE
DISTRICTS AFTER PAYMENT THEREOF AND THAT NO PERMANENT RIGHT TO RECEIVE
WATER WAS VESTED IN THE RESPECTIVE DISTRICTS AND THEIR MEMBERS.  ON
REVIEW BY THIS COURT, HELD:  THE JUDGMENTS ARE REVERSED.  PP. 277-300. 

1.  THIS COURT DOES NOT HAVE JURISDICTION ON APPEAL, BECAUSE THE
DECISIONS WERE BASED ON THE CONSTRUCTION OF A FEDERAL STATUTE, NOT ON A
HOLDING THAT FEDERAL STATUTES WERE UNCONSTITUTIONAL.  HOWEVER, TREATING
THE PAPERS AS PETITIONS FOR CERTIORARI, 28 U.S.C.  SEC. 2103,
CERTIORARI IS GRANTED.  PP. 279, 289-290. 

2.  THE JUDGMENTS DID NOT REST UPON AN ADEQUATE STATE GROUND, BECAUSE
STATE LAW WAS INVOKED ONLY BY THE INTERPRETATION THE COURT GAVE TO SEC.
8 OF THE RECLAMATION ACT OF 1902.  P. 290. 

3.  CONGRESS DID NOT INTEND THAT SEC. 8 OF THE RECLAMATION ACT OF
1902 WOULD, UNDER THE APPLICATION OF STATE LAW, MAKE THE EXCESS LANDS
PROVISION OF SEC. 5 INAPPLICABLE TO THE CENTRAL VALLEY PROJECT.  PP.
290-294. 

4.  SECTION 5 OF THE RECLAMATION ACT OF 1902 AND SEC. 46 OF THE
OMNIBUS ADJUSTMENT ACT OF 1926, PROVIDING GENERALLY THAT NO RIGHT TO
THE USE OF WATER SHALL BE SOLD FOR LANDS IN EXCESS OF 160 ACRES IN
SINGLE OWNERSHIP, ARE NOT INVALID UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS, BECAUSE THEY DO NOT AMOUNT TO A TAKING OF VESTED PROPERTY
RIGHTS IN LAND OR IRRIGATION DISTRICT WATER WITHOUT JUST COMPENSATION
AND THEY DO NOT DENY EQUAL PROTECTION OF THE LAWS BY DISCRIMINATING
UNJUSTLY BETWEEN SMALL AND LARGE LANDOWNERS.  PP. 294-297. 

5.  IN VIEW OF THE DECLARATIONS AND PROVISIONS INCORPORATED IN THE
AMENDMENTS CONTAINED IN THE ACT OF JULY 2, 1956, THERE IS NO ROOM FOR
OBJECTION TO THE CONTRACTS ON THE GROUND THAT THEY INFER THAT THE WATER
USERS ARE NOT ENTITLED TO WATER RIGHTS BEYOND THE 40-YEAR TERMS OF THE
CONTRACTS OR THAT THE CONTRACTS DO NOT MAKE CLEAR THAT THE DISTRICTS
AND LANDOWNERS BECOME FREE OF INDEBTEDNESS UPON REPAYMENT OF THEIR
SHARES OF THE COST OF THE PROJECT.  PP. 297-298. 

6.  THE CONTRACTS WERE NOT INVALID BECAUSE OF FAILURE TO RECITE A
DEFINITE SUM AS BEING THE TOTAL AMOUNT DUE FOR THE WATER SUPPLY
FACILITIES.  P. 298. 

7.  THE CONTRACTS WERE NOT INVALID BECAUSE OF THE ABSENCE OF ANY
PROVISION TO THE EFFECT THAT THE DISTRICTS WOULD OBTAIN TITLE TO THE
DISTRIBUTION SYSTEMS WHEN THEIR OBLIGATIONS THEREFOR HAD BEEN TOTALLY
DISCHARGED.  PP. 298-300. 

IVANHOE IRRIGATION DISTRICT ET AL. V. MCCRACKEN ET AL. 

ON APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE FOUR CASES PRESENT ISSUES OF BASIC IMPORTANCE TO THE FEDERAL
RECLAMATION LAWS.  THE SUPREME COURT OF CALIFORNIA HAS REFUSED TO
CONFIRM CERTAIN CONTRACTS ENTERED INTO BETWEEN TWO STATE IRRIGATION
DISTRICTS AND A WATER AGENCY ON THE ONE HAND AND THE UNITED STATES ON
THE OTHER, (FN1) FINDING THE CONTRACTS INVALID ON SEVERAL GROUNDS.  47
CAL. 2D 597, 681, 695, 699, 306 P.2D 824, 886, 894, 875.  SPECIFICALLY
INVOLVED ARE PARTS OF TWO STATUTORY ENACTMENTS:  SECTION 5 OF THE
RECLAMATION ACT OF 1902, (FN2) PROVIDING GENERALLY THAT NO RIGHT TO THE
USE OF WATER SHALL BE SOLD FOR LANDS IN EXCESS OF 160 ACRES IN SINGLE
OWNERSHIP, AND SEC. 9 OF THE RECLAMATION PROJECT ACT OF 1939, (FN3)
PROVIDING, INTER ALIA, FOR THE REPAYMENT TO THE UNITED STATES OF FUNDS
EXPENDED ON THE CONSTRUCTION OF RECLAMATION WORKS, AND AUTHORIZING THE
SECRETARY OF THE INTERIOR TO MAKE CONTRACTS TO FURNISH RECLAMATION
WATER AT APPROPRIATE RATES FOR IRRIGATION.  THE OPINION OF THE SUPREME
COURT OF CALIFORNIA TURNED ON AN INTERPRETATION OF A THIRD PROVISION,
SEC. 8 OF THE RECLAMATION ACT OF 1902.  (FN4)  THAT SECTION PROVIDES
THAT THE ACT IS NOT TO BE CONSTRUED AS INTERFERING WITH STATE LAWS
"RELATING TO THE CONTROL, APPROPRIATION, USE, OR DISTRIBUTION OF WATER
USED IN IRRIGATION."  IT FURTHER PROVIDES THAT IN ADMINISTERING THE ACT
THE SECRETARY OF THE INTERIOR "SHALL PROCEED IN CONFORMITY WITH SUCH
LAWS  ...  ."  THE CALIFORNIA COURT HELD THAT THIS PROVISION REQUIRED
THE APPLICATION OF CALIFORNIA LAW, AND FINDING THE PROVISIONS OF THE
CONTRACTS CONTRARY THERETO, IT REFUSED CONFIRMATION.  THE WATER
DISTRICTS AND AGENCY INVOLVED, JOINED BY THE STATE OF CALIFORNIA,
APPEALED, AND WE POSTPONED THE QUESTION OF JURISDICTION TO THE MERITS. 
355 U.S. 803 (1957).  WE HAVE CONCLUDED, FOR REASONS HEREINAFTER SET
FORTH, THAT WE HAVE NO JURISDICTION OVER THE APPEALS.  TREATING THE
PAPERS AS PETITIONS FOR CERTIORARI, 28 U.S.C. SEC. 2103, WE GRANT
CERTIORARI.  ON THE MERITS, WE DEEM THE CONTRACTS CONTROLLED BY FEDERAL
LAW AND VALID AGAINST THE OBJECTIONS MADE. 

                     I. THE BACKGROUND OF THE LITIGATION 

THIS LITIGATION INVOLVES A DISPUTE BETWEEN LANDOWNERS ON THE ONE HAND
AND THE COMBINED STATE AND FEDERAL GOVERNMENTS ON THE OTHER.  AS THE
ATTORNEY GENERAL OF CALIFORNIA POINTS OUT, THERE IS NO CLASH HERE
BETWEEN THE UNITED STATES AND THE STATE OF CALIFORNIA.  QUITE TO THE
CONTRARY, THE UNITED STATES AND THE VARIOUS STATE AGENCIES, WITH
COMMENDABLE FAITH AND STEADFASTNESS TO ONE ANOTHER, HAVE EMBARKED UPON
AND NEARLY COMPLETED A MOST COMPLICATED JOINT VENTURE KNOWN AS THE
CENTRAL VALLEY PROJECT.  THERE HAVE AT TIMES BEEN DIFFERENCES, BUT
THESE ARE INEVITABLE IN THE EVERYDAY IMPLEMENTATION OF SUCH A GIANT
UNDERTAKING.  ON THE WHOLE THE PARTIES HAVE KEPT THE ULTIMATE GOAL
FIRMLY CENTERED IN THEIR JOINT VISION. 

CENTRAL VALLEY IS THE LARGEST SINGLE UNDERTAKING YET EMBARKED UPON
UNDER THE FEDERAL RECLAMATION PROGRAM.  IT WAS BORN IN THE MINDS OF FAR
SEEING CALIFORNIANS IN THEIR ENDEAVOR TO BRING TO THAT STATE'S PARCHED
ACRES A WATER SUPPLY SUFFICIENTLY PERMANENT TO TRANSFORM THEM INTO
VERITABLE GARDENS FOR THE BENEFIT OF MANKIND.  FAILING IN ITS EFFORTS
TO FINANCE SUCH A GIANT UNDERTAKING, CALIFORNIA ALMOST A QUARTER OF A
CENTURY AGO PETITIONED THE UNITED STATES TO JOIN IN THE ENTERPRISE. 
THE CONGTESS APPROVED AND ADOPTED THE PROJECT, PURSUANT TO REPEATED
REQUESTS OF THE STATE, AND THUS FAR HAS EXPENDED NEARLY HALF A BILLION
DOLLARS.  THE TOTAL COST IS ESTIMATED TO BE AS HIGH AS A BILLION
DOLLARS. 

THE SAGA OF THIS PROJECT IS FASCINATING.  CALIFORNIA HAS TWO SOMEWHAT
PARALLEL RANGES OF MOUNTAINS RUNNING SOUTH FROM ITS NORTHERN BORDER FOR
TWO-THIRDS THE LENGTH OF THE STATE.  KNOWN AS THE SIERRA NEVADA ON THE
EAST AND THE COAST RANGE ON THE WEST, THEY CONVERGE ON THE NORTH AT
MOUNT SHASTA AND ARE JOINED BY THE TEHACHAPI MOUNTAINS ON THE SOUTH,
THEREBY FORMING THE CENTRAL VALLEY BASIN.  THE BASIN EXTENDS ALMOST 500
MILES BETWEEN THESE RANGES, FROM SHASTA TO BAKERSFIELD, AND HAS AN
AVERAGE WIDTH OF 120 MILES, INCLUDING MORE THAN A THIRD OF THE AREA OF
CALIFORNIA.  THE MAIN VALLEY FLOOR, COMPRISING ABOUT A THIRD OF THE
BASIN AREA, IS AN ALLUVIAL PLAIN SOME 400 MILES LONG AND AVERAGING 45
MILES IN WIDTH.  THE SACRAMENTO RIVER, WITH HEADWATERS NEAR MOUNT
SHASTA, FLOWS SOUTH INTO SAN FRANCISCO BAY, DRAINING THE NORTHERN
PORTION OF THE BASIN.  THE SAN JOAQUIN RIVER, WHICH RISES ABOVE FRIANT
IN THE SOUTH, RUNS FIRST WEST THEN NORTH TO JOIN THE SACRAMENTO RIVER
IN THE SACRAMENTO-SAN JOAQUIN DELTA, BOTH FINDING A COMMON OUTLET TO
THE OCEAN THROUGH SAN FRANCISCO BAY.  SEE UNITED STATES V. GERLACH LIVE
STOCK CO., 339 U.S. 725 (1950). 

RAINFALL ON THE VALLEY FLOOR COMES DURING THE WINTER MONTHS - 85%
FROM NOVEMBER TO APRIL - AND SUMMERS ARE QUITE DRY.  AT RED BLUFF, JUST
SOUTH OF MOUNT SHASTA, THE AVERAGE IS 23 INCHES, WHILE SOUTH AT
BAKERSFIELD A SCANT 6 INCHES FALL.  THE CLIMATE IS IDEAL WITH A FROST
FREE PERIOD OF OVER SEVEN MONTHS AND A MILD WINTER PERMITTING
PRODUCTION OF SOME CITRUS AS WELL AS DECIDUOUS FRUITS AND OTHER
SPECIALIZED CROPS.  THE ABSENCE OF RAIN, HOWEVER, MAKES IRRIGATION
ESSENTIAL, PARTICULARLY IN THE SOUTHERN REGION. 

IN THE MOUNTAIN RANGES PRECIPITATION IS GREATER, AND THE WINTERS MORE
SEVERE.  THE NORTHERN SIERRAS AVERAGE 80 INCHES OF RAINFALL AND THE
SOUTHERN 35 INCHES.  THE COAST RANGE EXPERIENCES MUCH LESS.  IN THE
HIGHER RECESSES OF THE MOUNTAINS PRECIPITATION IS LARGELY SNOW WHICH,
WHEN IT MELTS, JOINS THE OTHER RUNOFF OF THE MOUNTAIN AREAS TO MAKE UP
AN ANNUAL AVERAGE OF 33,000,000 ACRE-FEET OF WATER COMING FROM THE
MOUNTAIN REGIONS.  NATURE HAS NOT REGULATED THE TIMING OF THE RUNOFF
WATER, HOWEVER, AND IT IS ESTIMATED THAT HALF OF THE SIERRA RUNOFF
OCCURS DURING THE THREE MONTHS OF APRIL, MAY, AND JUNE.  RESULTING
FLOODS CAUSE GREAT DAMAGE, AND WASTE THIS PHENOMENAL ACCUMULATION OF
WATER SO VITAL TO THE VALLEY'S RICH ALLUVIAL SOIL.  THE OBJECT OF THE
PLAN IS TO ARREST THIS FLOW AND REGULATE ITS SEASONAL AND YEAR-TO-YEAR
VARIATIONS, THEREBY CREATING SALINITY CONTROL TO AVOID THE GRADUAL
ENCROACHMENT OF OCEAN WATER, PROVIDING AN ADEQUATE SUPPLY OF WATER FOR
MUNICIPAL AND IRRIGATION PURPOSES, FACILITATING NAVIGATION, AND
GENERATING POWER.  THE PLAN IS NOW NEARING COMPLETION AND IS ACTUALLY
IN PARTIAL OPERATION IN SOME AREAS. 

THE COMPLETED PROJECT IS BUILT AROUND THESE TWO GREAT RIVERS, AND
INCLUDES A SERIES OF DAMS, THREE OF WHICH - SHASTA, FOLSOM, AND TRINITY
RIVER - WILL FURNISH ELECTRIC POWER.  THE STATE WATER PLAN CONTEMPLATES
THAT EVENTUALLY 38 MAJOR RESERVOIRS SCATTERED AT VARIOUS POINTS IN THIS
PART OF THE STATE WILL STORE AN ESTIMATED 30,000,000 ACRE-FEET OF
WATER.  THE SHASTA DAM AND RESERVOIR SITS AT THE HEAD OF THE TABLE ON
THE NORTH.  WITH A CAPACITY OF 4,500,000 ACRE-FEET OF WATER, IT, ALONG
WITH TRIBUTARY DAMS AND RESERVOIRS, WILL CONTROL THE FLOODS FROM THAT
AREA.  THE TRINITY RIVER, WITH HEADWATERS WEST OF SHASTA ON THE WESTERN
SLOPE OF THE COAST RANGE, DRAINS INTO THE PACIFIC OCEAN.  A DAM NOW
UNDER CONSTRUCTION NEAR LEWISTON WILL IMPOUND SOME THREE-QUARTERS OF A
MILLION ACRE-FEET OF WATER WHICH, BY MEANS OF A TUNNEL, WILL BE
PARTIALLY DIVERTED INTO AND SUPPLEMENT THE WATERS OF THE SACRAMENTO
RIVER LYING TO THE EAST AND ACROSS THE MOUNTAINS.  THE WATER SUPPLY
FACILITIES ALONG THE SACRAMENTO RIVER WILL REGULATE ITS FLOW, STORE
SURPLUS WINTER RUNOFF FOR USE IN THE SACRAMENTO VALLEY, MAINTAIN
NAVIGATION IN THE CHANNEL, PROTECT THE SACRAMENTO-SAN JOAQUIN DELTA
FROM SALT INTRUSION FROM THE PACIFIC, PROVIDE A WATER SUPPLY FOR THE
CONTRA COSTA AND DELTA-MENDOTA CANALS, AND GENERATE A GREAT DEAL OF
HYDROELECTRIC ENERGY.  THE CONTRA COSTA CANAL SERVICES THE SOUTH SHORE
OF SUISUN BAY FROM ANTIOCH TO MARTINEZ WITH WATER FROM THE DELTA FOR
DOMESTIC, INDUSTRIAL, AND IRRIGATION USE.  THE DELTA-MENDOTA CANAL
TRANSPORTS SURPLUS SACRAMENTO RIVER WATER TO MENDOTA POOL ON THE SAN
JOAQUIN RIVER, 120 MILES SOUTH OF THE DELTA.  THE WATER IS PUMPED FROM
THE DELTA TO THE CANAL ALONG THE FOOTHILLS OF THE COAST RANGE AND BY
GRAVITY IT RUNS TO THE POOL AT MENDOTA.  THIS EXCHANGE OF WATER
REPLACES THAT DIVERTED FROM THE SAN JOAQUIN BY THE DAM AT FRIANT.  THIS
LATTER DAM FORCES THE ENTIRE FLOW OF THE SAN JOAQUIN INTO MILLERTON
LAKE WHICH HAS A CAPACITY OF 520,000 ACRE-FEET OF WATER.  IT IS
DIVERTED FROM THE LAKE BY THE MADERA CANAL TO THE NORTH AND THE FRIANT
KERN CANAL TO THE SOUTH.  THE FORMER EXTENDS ABOUT 37 MILES IN LENGTH
AND SERVICES THE MADERA DISTRICT, WHILE THE LATTER SUPPLIES WATER TO
THE IVANHOE DISTRICT AND OTHERS TO THE SOUTH.  IT WILL EXTEND SOUTH
ABOUT 160 MILES TO A POINT NEAR BAKERSFIELD, WHICH SITS AT THE FOOT OF
THE CENTRAL VALLEY'S ENORMOUS TABLE. 

THE POWER FACILITIES OF THE PROJECT WILL, WHEN FINALLY COMPLETED,
HAVE A CAPACITY OF NEAR A MILLION KILOWATTS.  TRANSMISSION LINES, STEAM
PLANTS, AND OTHER ESSENTIAL FACILITIES WILL BE CONSTRUCTED SO AS TO
OBTAIN THE MAXIMUM UTILIZATION.  IT IS ESTIMATED THAT THROUGH THE SALE
OF THIS POWER THE UNITED STATES WILL RECEIVE REIMBURSEMENT FOR OVER
HALF OF ITS TOTAL REIMBURSABLE EXPENDITURES. 

THE OVER-ALL ALLOCATION OF THESE ENORMOUS COSTS HAS NOT BEEN
DEFINITELY DETERMINED.  THAT PORTION OF THE COSTS ULTIMATELY ALLOCATED
TO POWER FACILITIES WILL BE REIMBURSED AT 4% INTEREST, BUT THAT
ALLOCATED TO IRRIGATION FACILITIES WILL BE REIMBURSED AT NO INTEREST. 
MOREOVER, THE FEDERAL GOVERNMENT WILL RECEIVE NO REIMBURSEMENT FOR THAT
PORTION OF THE COST ALLOCATED TO NUMEROUS ASPECTS OF THE PROJECT, SUCH
AS NAVIGATION, FLOOD CONTROL, SALINITY PREVENTION, FISH AND WILDLIFE
PRESERVATION, AND RECREATION.  THE IRRIGATORS WILL, THEREFORE, BE
CHARGEABLE WITH BUT A SMALL FRACTION OF THE TOTAL COST OF THE PROJECT. 

WE HASTEN TO CORRECT ANY IMPRESSION THAT LANDS IN THE CENTRAL VALLEY
HAD NOT BEEN RECLAIMED AND IRRIGATED AT THE INCEPTION OF THE PROJECT. 
ON THE CONTRARY, SINCE CALIFORNIA ENTERED THE UNION IT HAS WORKED
DILIGENTLY TO BRING WATER TO ITS ARID LANDS.  WORKING LARGELY THROUGH
STATE IRRIGATION DISTRICTS, PRIVATE INTERESTS HAVE BEEN INGENIOUS IN
CONSTRUCTING SMALLER RESERVOIRS, TAPPING UNDERGROUND SOURCES, AND
ATTEMPTING TO PREVENT SALINE ENCROACHMENT WHICH WOULD DESTROY THE SOIL
FOR AGRICULTURAL PURPOSES.  WATER HAS BEEN CALLED "THE LIFE BLOOD OF
THE STATE."  COMPETITION FOR THIS VITAL NATURAL RESOURCE HAS PROVOKED
SUCH CONTROVERSY THAT IT HAS REQUIRED AMENDMENTS TO THE CONSTITUTION
AND CONTINUAL LEGISLATIVE ACTIVITY.  IT IS NOT AT ALL SURPRISING,
THERFORE, THAT IN PUTTING TOGETHER THE MOSAIC OF CENTRAL VALLEY SOME
LITIGATION WOULD ENSUE.  SEE UNITED STATES V. GERLACH LIVE STOCK CO.,
SUPRA.

              II. SCOPE OF THE APPEALS AND NATURE OF THE
CONTRACTS. 

THESE FOUR APPEALS CONTEST THE RIGHT OF THE UNITED STATES AND
CALIFORNIA TO COMPLETE THE VENTURE AND REAP THE REWARDS THEREFROM AS
PROVIDED BY THEIR RESPECTIVE LAWS. 

IT SHOULD BE NOTED THAT THE APPEAL INVOLVING THE SANTA BARBARA COUNTY
WATER AGENCY, NO. 125, DOES NOT INVOLVE THE CENTRAL VALLEY PROJECT, AS
IT DOES NOT LIE WITHIN THAT AREA.  IT CONCERNS A PROJECT TO SUPPLY
WATER FOR IRRIGATION AND MUNICIPAL USES ALONG THE SOUTH COASTAL AREA OF
SANTA BARBARA COUNTY.  IT INCLUDES A DAM ON THE SANTA YNEZ RIVER
IMPOUNDING WATER IN CACHUMA RESERVOIR.  THIS RIVER RISES ON THE WESTERN
SLOPES OF THE COAST RANGE AND RUNS INTO THE PACIFIC.  THE TECOLOTE
TUNNEL WILL DELIVER WATER ACROSS THE COASTAL RANGE OF MOUNTAINS TO THE
SANTA BARBARA COUNTY AGENCY THROUGH THE LATERAL DISTRIBUTION SYSTEMS OF
THE GOLETA AND CARPENTERIA COUNTY WATER DISTRICTS.  THE ADOPTION OF THE
PROJECT BY THE CONGRESS IN 1948 WAS BASED ON THE RECOMMENDATION OF THE
STATE DIVISION OF WATER RESOURCES REPORT STATING THAT THERE WAS "AN
URGENT AND IMMEDIATE NEED FOR SUBSTANTIAL SUPPLEMENTAL MUNICIPAL AND
IRRIGATION WATER SUPPLIES  ...  .  THE CITY OF SANTA BARBARA HAS A
CRITICAL WATER SITUATION AT THIS TIME  ...  .  THE UNDERGROUND WATER
SUPPLIES IN THE COUNTY WATER DISTRICTS ARE BEING SERIOUSLY OVERDRAWN. 
IN SOME LOCALITIES  ...  WELLS ARE BEING DAMAGED BY SALT WATER
INTRUSION."  H.R. DOC. NO. 587, 80TH CONG., 2D SESS. 10.  WHILE THE
CONTRACT IS AUTHORIZED UNDER SEC. 9(C) OF THE 1939 ACT, (FN5) FOR OUR
PURPOSES IT IS IDENTICAL TO THE OTHERS AND WILL BE DISCUSSED WITH
THEM. 

THE REMAINING APPEALS INVOLVE AREAS IN THE SOUTHERN PORTION OF THE
CENTRAL VALLEY BASIN.  THE MADERA DISTRICT INCLUDES THE FRAINT DAM AND
MILLERTON LAKE, THE SITES FOR WHICH THE UNITED STATES HAS PURCHASED
OUTRIGHT.  WATER RIGHTS SURROUNDING THESE AREAS WERE INVOLVED IN UNITED
STATES V. GERLACH LIVE STOCK CO., SUPRA, AND HAVE BEEN ACQUIRED BY THE
UNITED STATES.  THESE INSTALLATIONS ARE, OF COURSE, VITAL TO THE
OPERATION OF THE PROJECT IN THE SOUTH OF THE VALLEY.  THE MADERA
DISTRICT WILL BE FURNISHED WATER FROM MILLERTON LAKE BY THE MADERA
CANAL.  THE IVANHOE DISTRICT IS SOUTH OF FRIANT AND WILL BE SUPPLIED
WATER THROUGH THE FRIANT-KERN CANAL.  IT IS INTERESTING TO NOTE THAT
IRRIGATORS IN THIS DISTRICT RECEIVE WATER DIVERTED FROM THE SAN JOAQUIN
IN WHICH THEY NEVER HAD NOR WERE ABLE TO OBTAIN ANY WATER RIGHT.    THE
CONTRACTS TO WHICH THE SUPREME COURT OF CALIFORNIA TOOK EXCEPTION
PROVIDE, IN OUTLINE, THAT THE UNITED STATES WILL, AFTER CONSTRUCTION OF
THE WATER SUPPLY FACILITIES AND THE LATERAL DISTRIBUTION SYSTEM FOR THE
IRRIGATION DISTRICTS, FURNISH WATER TO THE DISTRICTS AND THE SANTA
BARBARA COUNTY AGENCY FOR A PERIOD OF 40 YEARS.  INCORPORATING THE
REQUIREMENTS OF SEC. 5 OF THE RECLAMATION ACT OF 1902, (FN6) THE
CONTRACT PROVIDES THAT PROJECT WATER SHALL NOT BE FURNISHED TO LANDS IN
EXCESS OF 160 ACRES IN SINGLE OWNERSHIP.  THIS LIMITATION APPLIES ONLY
TO "PROJECT WATER" AND PREVIOUSLY EXISTING WATER SUPPLIES ARE
UNAFFECTED THEREBY.  "LARGE LANDOWNERS," I.E., THOSE WHO OWN EXCESS
LAND, WHO WISH THAT EXCESS TO HAVE THE BENEFIT OF PROJECT WATER MUST
AGREE TO SELL THEIR EXCESS TO OTHER THAN LARGE LANDOWNERS WITHIN 10
YEARS AT A PRICE, FIXED BY THREE APPRAISERS, WHICH WILL EXCLUDE
POTENTIAL ENHANCEMENT OF THE PRICE BY REASON OF PROJECT WATER BEING
AVAILABLE.  LARGE LANDOWNERS ELECTING NOT TO SELL THEIR EXCESS MAY USE
EXISTING WATER SUPPLIES IN UNDERGROUND SOURCES.   MOREOVER, IF THEY
DESIGNATE WHICH OF THEIR HOLDINGS SHALL BE CONSIDERED NONEXCESS, THE
DISTRICT WOULD FURNISH WATER TO THAT LAND UNDER THE TERMS PROVIDED IN
THE CONTRACTS. 

THE REPAYMENT PROVISIONS AS TO THE "DISTRIBUTION SYSTEMS" REQUIRE
LIQUIDATION OF THE MAXIMUM STATED EXPENDITURE OF THE UNITED STATES BY
INSTALLMENTS SPREAD OVER 40 YEARS, WITHOUT INTEREST, IN ACCORDANCE WITH
SEC. 9(D) OF THE RECLAMATION PROJECT ACT OF 1939.  AS TO THE "WATER
SUPPLY FACILITIES," SUCH AS THE DAMS AND RESERVOIRS, THE CONTRACTS
EMPLOY THE MORE LIBERAL PROVISIONS OF SEC. 9(E) OF THAT ACT.  (FN7)
REPAYMENT, WITHOUT INTEREST, IS TO BE INCLUDED IN THE CHARGE FOR WATER
SOLD TO THE DISTRICTS AND THE AGENCY BY THE UNITED STATES.  THE
CONTRACT TERM RUNS FOR 40 YEARS AND, USING THE LANGUAGE OF SEC. 9(E),
THE WATER RATE IS CALCULATED SO AS TO RETURN TO THE UNITED STATES
"REVENUES AT LEAST SUFFICIENT TO COVER AN APPROPRIATE SHARE OF THE
ANNUAL OPERATION AND MAINTENANCE COST AND AN APPROPRIATE SHARE OF SUCH
FIXED CHARGES AS THE SECRETARY DEEMS PROPER, DUE CONSIDERATION BEING
GIVEN TO THAT PART OF THE COST OF CONSTRUCTION OF WORKS CONNECTED WITH
WATER SUPPLY AND ALLOCATED TO IRRIGATION."  THE CONGRESS HAS NOW
SUPPLEMENTED THESE TERMS OF THE CONTRACTS BY THE ACT OF JULY 2, 1956,
70 STAT. 483.  IT PROVIDES THAT THE DISTRICTS AND THE AGENCY SHALL BE
GIVEN "CREDIT EACH YEAR" FOR "SO MUCH OF THE AMOUNT PAID  ...  AS IS IN
EXCESS OF THE SHARE OF THE OPERATION AND MAINTENANCE COSTS OF THE
PROJECT WHICH THE SECRETARY FINDS IS PROPERLY CHARGEABLE  ...  ."  THE
PROVISION IS RETROACTIVE AND RUNS WITH THE CONTRACT, AND WHEN THIS
AMOUNT IS EQUAL TO THE AMOUNT OWING ON THE TOTAL WATER SUPPLY
EXPENDITURES ALLOCATED TO IRRIGATION, "NO CONSTRUCTION COMPONENT SHALL
BE INCLUDED IN ANY CHARGES MADE FOR THE FURNISHING OF WATER  ...  " THE
ACT ALSO PERMITS RENEWAL OF THE CONTRACT ON TERMS THAT WILL REFLECT ANY
"INCREASES OR DECREASES IN CONSTRUCTION, OPERATION, AND MAINTENANCE
COSTS AND IMPROVEMENT OR DETERIORATION IN THE DISTRICT'S REPAYMENT
CAPACITY."  IN ADDITION, THE ACT PROVIDES THAT THE DISTRICTS AND THE
AGENCY "SHALL  ... HAVE A FIRST RIGHT (TO WHICH RIGHT THE RIGHTS OF THE
HOLDERS OF ANY OTHER TYPE OF IRRIGATION WATER CONTRACT SHALL BE
SUBORDINATE) TO A STATED SHARE OR QUANTITY OF THE PROJECT'S AVAILABLE
WATER SUPPLY FOR BENEFICIAL USE ON THE IRRIGABLE LANDS WITHIN THE
DISTRICT AND A PERMANENT RIGHT TO SUCH SHARE OR QUANTITY UPON
COMPLETION OF PAYMENT OF THE AMOUNT" THAT IS DUE ON EXPENDITURES FOR
WATER SUPPLY ALLOCATED TO IRRIGATION. 

                     III.  ACTION OF THE CALIFORNIA COURTS. 

IN THE CONFIRMATION SUITS INVOLVING THE IVANHOE DISTRICT, NO. 122,
AND OF THE MADERA DISTRICT, NO. 123, THE TRIAL COURT FOUND THE
CONTRACTS AND THE PROCEEDINGS LEADING TO THEIR EXECUTION INVALID.  THE
COURT REASONED THAT SEC. 8 OF THE 1902 ACT REQUIRED THAT "WHENEVER
THERE IS A CONFLICT BETWEEN THE FEDERAL RECLAMATION LAWS AND THE LAWS
OF THE STATE, THE LAW OF CALIFORNIA MUST PREVAIL."  THE COURT ALSO
FOUND THAT IN THE LIGHT OF THE ORIGIN OF THE CENTRAL VALLEY PROJECT,
THE UNITED STATES WAS TRUSTEE OF AN EXPRESS TRUST OF WHICH THE IVANHOE
DISTRICT AND OTHERS WERE AMONG THE BENEFICIARIES.  IT CONCLUDED THAT
ALL APPLICATIONS TO APPROPRIATE WATER ARE INCLUDED IN SUCH TRUST AND
THE BENEFICIARIES HAVE "AN INCOMPLETE, INCIPIENT AND CONDITIONAL RIGHT
IN THE WATER APPLIED FOR" WHICH IS VESTED AND RUNS WITH THE LAND.  THE
EXCESS LAND PROVISION WAS DECLARED INVALID AND UNENFORCEABLE AS
CONFLICTING WITH BOTH STATE LAW AND THE RECLAMATION ACT.  APPLICATION
OF THE EXCESS LAND PROVISION TO AN IRRIGATOR WOULD, THE COURT FOUND, BE
UNCONSTITUTIONAL. 

THE ALBONICO LITIGATION, NO. 124, WAS AN APPLICATION FOR A MANDATORY
ORDER EXCLUDING LANDS IN EXCESS OF 320 ACRES OWNED BY THE ALBONICOS
FROM THE MADERA DISTRICT.  THE COURT HELD THAT THE EXCESS LAND
PROVISIONS WERE UNCONSTITUTIONAL AND THAT IF APPLIED TO THE ALBONICOS
THE MANDATORY ORDER SHOULD ISSUE. 

THE TRIAL COURT IN THE SANTA BARBARA CONFIRMATION CASE, NO. 125,
CONTRARY TO THE ACTION IN THE OTHER CASES, UPHELD THE CONTRACT AND
GRANTED CONFIRMATION.  THE COURT FOUND THAT THE MASTER CONTRACT WAS
RATIFIED AND CONFIRMED BY THE INTERIOR DEPARTMENT'S APPROPRIATION ACT
FOR 1951.  64 STAT. 595, 679. 

THE SUPREME COURT OF CALIFORNIA, BY A 4-3 VOTE, REVERSED THE TRIAL
COURT JUDGMENT VALIDATING THE CONTRACT IN NO. 125, THE SANTA BARBARA
CASE, AND AFFIRMED EACH OF THE OTHER JUDGMENTS.  THE PRINCIPAL OPINION
WAS IN THE IVANHOE CASE TO WHICH WE CONFINE OUR DISCUSSION.  THE
MAJORITY AGREED WITH THE TRIAL COURT THAT SEC. 8 OF THE 1902 ACT
REQUIRED THE APPLICATION OF STATE LAW.  IT FOUND THAT THE EXCESS LANDS
PROVISION WAS INAPPLICABLE AND IMPROPER UNDER STATE LAW, AND THAT THE
CONTRACT WAS THERFORE INVALID.  THIS CONCLUSION WAS POSITED ON A TRUST
THEORY OF CALIFORNIA WATER LAW WHICH PLACED A TRUST ON THE STATE AND
IRRIGATION DISTRICTS FOR THE BENEFIT OF WATER USERS.  IN ADMINISTERING
THIS TRUST THE UNITED STATES, THE MAJORITY HELD, STOOD IN THE SHOES OF
THE STATE.  THE SEC. 9(E) PROVISIONS OF THE CONTRACT WERE FOUND INVALID
ON THE GROUNDS THAT NO PROVISION WAS MADE FOR REPAYMENT OF A STATED
AMOUNT WITHIN 40 YEARS OR FOR TRANSFER OF TITLE TO THE DISTRIBUTION
SYSTEMS TO THE RESPECTIVE DISTRICTS AFTER PAYMENT THEREOF, AND THAT NO
PERMANENT RIGHT TO RECEIVE WATER WAS VESTED IN THE RESPECTIVE DISTRICTS
AND THEIR MEMBERS.  THE COURT APPEARS TO HAVE REACHED THIS CONCLUSION
BY FINDING THAT THE CONTRACT CREATED A "DEBTOR-CREDITOR" RELATIONSHIP
AND THAT THE UNITED STATES WAS ACTING AS A PUBLIC UTILITY WITHOUT
CONFORMING TO STATE LAW. 

                        IV. THE JURISDICTIONAL QUESTION. 

WE FIRST FACE THE DUAL ASPECTS OF THE JURISDICTIONAL QUESTION:  HAS
CALIFORNIA'S SUPREME COURT HELD A FEDERAL STATUTE UNCONSTITUTIONAL, AND
DOES ITS DECISION REST ON AN ADEQUATE STATE GROUND?  FLOURNOY V.
WIENER, 321 U.S. 253, 262 (1944). 

AS WE READ THE REASONS, HERETOFORE MENTIONED, UPON WHICH THE SUPREME
COURT OF CALIFORNIA INVALIDATED THE CONTRACTS, WE CONCLUDE THAT THEY
REST UPON NEITHER GROUND.  AS TO THE RIGHTS AND DUTIES OF THE UNITED
STATES UNDER THE CONTRACTS, THESE ARE MATTERS OF FEDERAL LAW ON WHICH
THIS COURT HAS FINAL WORD.  CLEARFIELD TRUST CO. V. UNITED STATES, 318
U.S. 363 (1943).  OUR CONSTRUCTION OF THE CONTRACT MIGHT DISPEL ANY
FEATURES THEREOF FOUND OFFENSIVE.  THE OTHER GROUND, NAMELY, THE 160
ACRE LIMITATION, ALONE REQUIRES FURTHER CONSIDERATION. 

APPELLANTS CLAIM THAT CALIFORNIA'S SUPREME COURT HAS HELD
UNCONSTITUTIONAL THE FEDERAL STATUTES, SEC. 5 OF THE RECLAMATION ACT OF
1902, AS RE-ENACTED IN SEC. 46 OF THE OMNIBUS ADJUSTMENT ACT OF 1926,
RELATING TO THE 160-ACRE LIMITATION.  IT APPEARS TO US, HOWEVER, THAT
THE OPINION ACTUALLY TURNED ON THE COURT'S INTERPRETATION OF SEC. 8 OF
THE 1902 ACT.  IN EFFECT, THE COURT HELD THAT THIS SECTION OVERRIDES
ALL OTHER SECTIONS OF THE ACT, REQUIRING THAT IT BE CONSTRUED AS NOT
AFFECTING STATE LAWS "RELATING TO THE CONTROL, APPROPRIATION, USE, OR
DISTRIBUTION OF WATER USED IN IRRIGATION."  TURNING TO STATE LAW, THE
COURT BY APPLYING A "TRUST THEORY" HELD THAT THE FEDERAL GOVERNMENT
COULD ACQUIRE NO TITLE TO APPROPRIATIVE WATER RIGHTS FREE OF A TRUST IN
THE STATE OF CALIFORNIA FOR THE BENEFIT OF THE PEOPLE OF THE STATE. 
THIS "LIMITED MEASURE OF CONTROL" OF THE APPROPRIATIVE WATER, THE COURT
SAID, 47 CAL. 2D, AT 620, 306 P.2D, AT 837, PREVENTED THE IMPOSITION OF
THE 160-ACRE LIMITATION BECAUSE THE BENEFICIARIES OF THE TRUST, NAMELY,
THE PEOPLE OF THE STATE AND PARTICULARLY THOSE IN THE DISTRICTS
INVOLVED, WOULD BE DEPRIVED BY THE ACREAGE LIMITATION OF A RIGHT TO THE
USE OF THE WATER IN THE DISTRICT.  WE THINK IT PLAIN THAT THIS WAS A
CONSTRUCTION OF FEDERAL LAW AND NOT A HOLDING OF UNCONSTITUTIONALITY. 
THIS, OF COURSE, PROVIDES NO BASIS FOR AN APPEAL, BUT THE IMPORTANCE OF
THE CASE, AS WE EARLIER NOTED, REQUIRES THAT CERTIORARI BE GRANTED. 

WE DEEM IT EQUALLY CLEAR THAT THE JUDGMENTS DO NOT REST ON AN
ADEQUATE STATE GROUND.  THE CONSTRUCTION THE OPINION GAVE TO SEC. 8 OF
THE 1902 ACT NULLIFIED THE SPECIFIC MANDATE OF SEC. 5, AS WELL AS ITS
RE-ENACTMENT IN THE 1926 ACT, AND EVEN THOUGH IN THE DOING A STATE LAW
MAY HAVE BEEN CALLED INTO PLAY, THIS WOULD NOT IMMUNIZE IT FROM THIS
COURT'S REVIEW.  BASICALLY IT IS THE INTERPRETATION OF THE FEDERAL ACT
THAT OPENS THE DOOR TO THE APPLICATION OF THE STATE LAW AND LEADS TO
THE STRIKING DOWN OF THE CONTRACTS MADE BY THE SECRETARY. 

NOR WOULD THE SUGGESTION THAT STATE LAW PREVENTED THE WATER DISTRICTS
AND AGENCIES OF THE STATE FROM ENTERING INTO THE CONTRACTS CHANGE THIS
CONCLUSION.  WE NEED NOT DETERMINE WHETHER A STATE COULD IN THAT MANNER
FRUSTRATE THE CONSUMMATION OF A FEDERAL PROJECT CONSTRUCTED AT ITS OWN
BEHEST.  THE FACT REMAINS THAT THE STATE LAW WAS, IN FACT, INVOKED ONLY
BY THE INTERPRETATION THE COURT GAVE SEC. 8. 

           V. APPLICATION OF THE RECLAMATION LAWS TO THE
CONTRACTS. 

AT THE OUTSET WE SET ASIDE AS NOT NECESSARY TO DECISION HERE THE
QUESTION OF TITLE TO OR VESTED RIGHTS IN UNAPPROPRIATED WATER.  CF.
NEBRASKA V. WYOMING, 325 U.S. 589, 611-616 (1945).  IF THE RIGHTS HELD
BY THE UNITED STATES ARE INSUFFICIENT, THEN IT MUST ACQUIRE THOSE
NECESSARY TO CARRY ON THE PROJECT, UNITED STATES V. GERLACH LIVE STOCK
CO., SUPRA, AT 739, PAYING JUST COMPENSATION THEREFOR, EITHER THROUGH
CONDEMNATION OR, IF ALREADY TAKEN, THROUGH ACTION OF THE OWNERS IN THE
COURTS.  AS WE SEE IT, THE AUTHORITY TO IMPOSE THE CONDITIONS OF THE
CONTRACTS HERE COMES FROM THE POWER OF THE CONGRESS TO CONDITION THE
USE OF FEDERAL FUNDS, WORKS, AND PROJECTS ON COMPLIANCE WITH REASONABLE
REQUIREMENTS.  AND, AGAIN, IF THE ENFORCEMENT OF THOSE CONDITIONS
IMPAIRS ANY COMPENSABLE PROPERTY RIGHTS, THEN RECOURSE FOR JUST
COMPENSATION IS OPEN IN THE COURTS. 

AS WE HAVE NOTED, THE SUPREME COURT OF CALIFORNIA FIRST CONCLUDED
THAT THE PROVISIONS OF SEC. 8 OF THE 1902 ACT AS TO THE APPLICATION OF
STATE LAW WERE ABSOLUTE, AND CONTROLLED ALL PROVISIONS OF THE ACT AND
OTHER RECLAMATION STATUTES HAVING TO DO WITH "THE CONTROL,
APPROPRIATION, USE, OR DISTRIBUTION OF WATER USED IN IRRIGATION, OR ANY
VESTED RIGHT ACQUIRED THEREUNDER  ... ."  WE BELIEVE THIS ERRONEOUS
INSOFAR AS THE SUBSTANTIVE PROVISIONS OF SEC. 5 OF THE 1902 ACT ARE
CONCERNED.  AS WE READ SEC. 8, IT MERELY REQUIRES THE UNITED STATES TO
COMPLY WITH STATE LAW WHEN, IN THE CONSTRUCTION AND OPERATION OF A
RECLAMATION PROJECT, IT BECOMES NECESSARY FOR IT TO ACQUIRE WATER
RIGHTS OR VESTED INTERESTS THEREIN.  BUT THE ACQUISITION OF WATER
RIGHTS MUST NOT BE CONFUSED WITH THE OPEATION OF FEDERAL PROJECTS.  AS
THE COURT SAID IN NEBRASKA V. WYOMING, SUPRA, AT 615: "WE DO NOT
SUGGEST THAT WHERE CONGRESS HAS PROVIDED A SYSTEM OF REGULATION FOR
FEDERAL PROJECTS IT MUST GIVE WAY BEFORE AN INCONSISTENT STATE
SYSTEM."  SECTION 5 IS A SPECIFIC AND MANDATORY PREREQUISITE LAID DOWN
BY THE CONGRESS AS BINDING IN THE OPERATION OF RECLAMATION PROJECTS,
PROVIDING THAT "NO RIGHT TO THE USE OF WATER  ...  SHALL BE SOLD FOR A
TRACT EXCEEDING ONE HUNDRED AND SIXTY ACRES TO ANY ONE LANDOWNER  ...
."  WE READ NOTHING IN SEC. 8 THAT COMPELS THE UNITED STATES TO DELIVER
WATER ON CONDITIONS IMPOSED BY THE STATE.  TO READ SEC. 8 TO THE
CONTRARY WOULD REQUIRE THE SECRETARY TO VIOLATE SEC. 5, THE PROVISIONS
OF WHICH, AS WE SHALL SEE, HAVE BEEN NATIONAL POLICY FOR OVER HALF A
CENTURY.  WITHOUT PASSING GENERALLY ON THE COVERAGE OF SEC. 8 IN THE
DELICATE AREA OF FEDERAL-STATE RELATIONS IN THE IRRIGATION FIELD, WE DO
NOT BELIEVE THAT THE CONGRESS INTENDED SEC. 8 TO OVERRIDE THE
REPEATEDLY REAFFIRMED NATIONAL POLICY OF SEC. 5. 

FROM THE BEGINNING OF THE FEDERAL RECLAMATION PROGRAM IN 1902, THE
POLICY AS DECLARED BY THE CONGRESS HAS BEEN ONE REQUIRING THAT THE
BENEFITS THEREFROM BE MADE AVAILABLE TO THE LARGEST NUMBER OF PEOPLE,
CONSISTENT, OF COURSE, WITH THE PUBLIC GOOD.  THIS POLICY HAS BEEN
ACCOMPLISHED BY LIMITING THE QUANTITY OF LAND IN A SINGLE OWNERSHIP TO
WHICH PROJECT WATER MIGHT BE SUPPLIED.  IT HAS BEEN APPLIED TO PUBLIC
LAND OPENED UP FOR ENTRY UNDER THE RECLAMATION LAW AS WELL AS PRIVATELY
OWNED LANDS, WHICH MIGHT RECEIVE PROJECT WATER.  SEE TAYLOR, THE EXCESS
LAND LAW:  EXECUTION OF A PUBLIC POLICY, 64 YALE L.J. 477. 

SIGNIFICANTLY, WHERE A PARTICULAR PROJECT HAS BEEN EXEMPTED BECAUSE
OF ITS PECULIAR CIRCUMSTANCES, THE CONGRESS HAS ALWAYS MADE SUCH
EXEMPTION BY EXPRESS ENACTMENT.  SEE ACT OF SEPTEMBER 3, 1954, 68 STAT.
1190, EXEMPTING THE SANTA MARIA PROJECT FROM THE APPLICABILITY OF
"EXCESS LAND LAWS."  (FN8) WITH RESPECT TO THE CENTRAL VALLEY PROJECT
THE CONGRESS HAS AGAIN AND AGAIN REAFFIRMED THE SPECIFIC REQUIREMENTS
OF SEC. 5 AND THE ACTION TAKEN BY THE SECRETARY THEREUNDER.  AS LATE AS
1944 ON CONSIDERATION OF THE OMNIBUS RIVERS AND HARBORS BILL THE SENATE
REFUSED, AFTER VIGOROUS DEBATE, TO CONCUR IN A CONFERENCE REPORT THAT
WOULD HAVE EXEMPTED THIS PROJECT FROM THE EXCESS LAND REQUIREMENTS OF
SEC. 5.  90 CONG. REC. 9493-9499.  AT THE NEXT SESSION OF THE CONGRESS
THE DISPUTED EXEMPTION WAS DELETED FROM THE BILL AND IT WAS PROMPTLY
PASSED.  LIKEWISE, THE SECRETARY REPORTED TO THE CONGRESS FROM TIME TO
TIME THE EXECUTION OF CONTRACTS, SIMILAR TO THOSE INVOLVED HERE,
WHEREIN "THE EXCESS LAND LIMITATIONS AND OTHER REQUIREMENTS OF LAW ARE
FULLY INCORPORATED IN THE CENTRAL VALLEY CONTRACT FORM."  HIS ANNUAL
REPORT FOR 1950 AND 1951 RELATED THE EXECUTION OF THE MADERA, IVANHOE,
AND SANTA BARBARA CONTRACTS INVOLVED HERE.  IN THE LATTER REPORT HE
MENTIONS INDIVIDUAL CONTRACTS WITH WATER USERS UNDER THE EXCESS LAND
LAWS, ADVISING THAT THESE LAWS WERE "GIVEN ACTIVE ATTENTION.  FIVE
RECORDABLE CONTRACTS PROVIDING FOR DELIVERY OF CENTRAL VALLEY PROJECT
WATER TO 3,570 ACRES OF EXCESS LAND ARE THE FIRST TO BE EXECUTED ON THE
PROJECT."  DURING THIS PERIOD THE CONGRESS REAUTHORIZED THE PROJECT,
ADDITIONAL UNITS WERE ADDED, SEE ACT OF OCTOBER 14, 1949, 63 STAT. 852;
H.R. DOC. NO. 416, 84TH CONG., 2D SESS., PP. 620-622; ACT OF SEPTEMBER
26, 1950, 64 STAT. 1036, AND THE ACT OF AUGUST 12, 1955, 69 STAT. 719;
H.R. DOC. NO. 416, PP. 937-940, AND LARGE APPROPRIATIONS OF FUNDS
THERETO WERE GRANTED ANNUALLY. 

IN LIGHT OF THESE CONGRESSIONAL ACTIONS, IT CANNOT BE SAID THAT
CONGRESS INTENDED THAT SEC. 8 WOULD, UNDER THE APPLICATION OF STATE
LAW, MAKE INAPPLICABLE THE EXCESS LANDS PROVISIONS OF SEC. 5 OF THE
RECLAMATION ACT OF 1902 TO THE CENTRAL VALLEY PROJECT.  THAT
POSSIBILITY IS FORECLOSED BY SUBSEQUENT AND CONTINUING ACTION BY THE
CONGRESS EVER SINCE THE INCEPTION OF THE PROJECT.  SUCH A RECORD
CONSTITUTES RATIFICATION OF ADMINISTRATIVE CONSTRUCTION, AND
CONFIRMATION AND APPROVAL OF THE CONTRACTS.  FLEMING V. MOHAWK CO., 331
U.S. 111, 119 (1947); BROOKS V. DEWAR, 313 U.S. 354, 361 (1941); SWAYNE
& HOYT, LTD., V. UNITED STATES, 300 U.S. 297, 302 (1937). 

                          VI. THE CONSTITUTIONAL ISSUES. 

APPELLEES URGE, HOWEVER, THAT THE FEDERAL STATUTES REQUIRING
INSERTION OF THESE PROVISIONS IN THE CONTRACTS ARE UNCONSTITUTIONAL AS
A DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW UNDER THE FIFTH
AND FOURTEENTH AMENDMENTS.  THEY ASSERT THAT THE EXCESS ACREAGE
PROVISIONS AMOUNT TO A TAKING OF VESTED PROPERTY RIGHTS BOTH IN LAND
AND IRRIGATION DISTRICT WATER, AND DISCRIMINATE BETWEEN THE NONEXCESS
AND THE EXCESS LANDOWNER.  WE CANNOT AGREE. 

THERE CAN BE NO DOUBT OF THE FEDERAL GOVERNMENT'S GENERAL AUTHORITY
TO ESTABLISH AND EXECUTE THE CENTRAL VALLEY AND SANTA BARBARA COUNTY
PROJECTS.  AS WE SAID IN UNITED STATES V. GERLACH LIVE STOCK CO.,
SUPRA, AT 739, THE CONGRESS "ELECTED TO TREAT IT (THE CENTRAL VALLEY
PROJECT) AS A RECLAMATION PROJECT."  WE UPHELD ITS POWER TO PURSUE THE
PROJECT AS "CLEAR" AND "AMPLE," AN EXERCISE OF THE GENERAL POWER "TO
PROMOTE THE GENERAL WELFARE THROUGH LARGE-SCALE PROJECTS FOR
RECLAMATION, IRRIGATION, OR OTHER INTERNAL IMPROVEMENT."  ID., AT 738. 
THE SANTA BARBARA PROJECT IS SUPPORTABLE ON THE SAME GROUNDS.  CF.
UNITED STATES V. BUTLER, 297 U.S. 1, 65-67 (1936).  IN DEVELOPING THESE
PROJECTS THE UNITED STATES IS EXPENDING FEDERAL FUNDS AND ACQUIRING
FEDERAL PROPERTY FOR A VALID PUBLIC AND NATIONAL PURPOSE, THE PROMOTION
OF AGRICULTURE.  THIS POWER FLOWS NOT ONLY FROM THE GENERAL WELFARE
CLAUSE OF ART. I, SEC. 8 OF THE CONSTITUTION, BUT ALSO FROM ART. IV,
SEC. 3, RELATING TO THE MANAGEMENT AND DISPOSAL OF FEDERAL PROPERTY. 
AS THIS COURT SAID IN UNITED STATES V. SAN FRANCISCO, 310 U.S. 16, 29
30 (1940), THIS "POWER OVER THE PUBLIC LAND THUS ENTRUSTED TO CONGRESS
IS WITHOUT LIMITATIONS.  'AND IT IS NOT FOR THE COURTS TO SAY HOW THAT
TRUST SHALL BE ADMINISTERED.  THAT IS FOR CONGRESS TO DETERMINE.'"  SEE
ALSO UNITED STATES V. CALIFORNIA, 332 U.S. 19, 27 (1947), AND ALABAMA
V. TEXAS, 347 U.S. 272, 273-274 (1954). 

ALSO BEYOND CHALLENGE IS THE POWER OF THE FEDERAL GOVERNMENT TO
IMPOSE REASONABLE CONDITIONS ON THE USE OF FEDERAL FUNDS, FEDERAL
PROPERTY, AND FEDERAL PRIVILEGES.  SEE BERMAN V. PARKER, 348 U.S. 26
(1954), AND FEDERAL POWER COMM'N V. IDAHO POWER CO., 344 U.S. 17
(1952).  THE LESSON OF THESE CASES IS THAT THE FEDERAL GOVERNMENT MAY
ESTABLISH AND IMPOSE REASONABLE CONDITIONS RELEVANT TO FEDERAL INTEREST
IN THE PROJECT AND TO THE OVER-ALL OBJECTIVES THEREOF.  CONVERSELY, A
STATE CANNOT COMPEL USE OF FEDERAL PROPERTY ON TERMS OTHER THAN THOSE
PRESCRIBED OR AUTHORIZED BY CONGRESS.  PUBLIC UTILITIES COMM'N OF
CALIFORNIA V. UNITED STATES, 355 U.S. 534 (1958).  ARTICLE VI OF THE
CONSTITUTION, OF COURSE, FORBIDS STATE ENCROACHMENT ON THE SUPREMACY OF
FEDERAL LEGISLATIVE ACTION. 

IN CONSIDERING APPELLEES' SPECIFIC CONSTITUTIONAL CONTENTIONS, IT IS
WELL TO RECAPITULATE.  THE CENTRAL VALLEY PROJECT IS MULTI-PURPOSE IN
NATURE.  THAT PORTION OF THE PROJECT EXPENSE ATTRIBUTABLE TO
NAVIGATION, FLOOD CONTROL, SALINITY PREVENTION, RECREATION AND FISH AND
WILDLIFE PRESERVATION IS NONREIMBURSABLE.  THE REMAINDER OF THE TOTAL
EXPENSE, AND THE ONLY PART THAT IS REIMBURSABLE, IS DIVIDED BETWEEN TWO
MAIN SOURCES.  THE FIRST IS HYDROELECTRIC POWER WHICH ESTIMATES
INDICATE WILL BE CHARGEABLE WITH OVER 50 PERCENT OF THE REIMBURSABLE
EXPENSE, PLUS INTEREST ON THE PART REPRESENTING ELECTRIC PLANTS IN
SERVICE.  THE OTHER IS IRRIGATION, WHICH PAYS THE REST WITHOUT INTEREST
CHARGE.  IN SHORT, THE PROJECT IS A SUBSIDY, THE COST OF WHICH WILL
NEVER BE RECOVERED IN FULL.  APPELLEES ARGUE THAT THE SAME REASONING
APPLIES TO POWER FACILITIES, BUT THERE THE GOVERNMENT IS OPERATING THE
GENERATING FACILITIES ITSELF AND THE BASE RATE UPON WHICH THE POWER IS
SOLD INCLUDES AN ITEM FOR INTEREST ON THE AMOUNT OF EXPENDITURES
ALLOCATED TO THAT PURPOSE.  HENCE THE TRUE RELATIONSHIP OF DEBTOR
CREDITOR IS MAINTAINED.  IN THE LIGHT OF THESE FACTS WE BELIEVE THAT
THE LANGUAGE OF THE COURT IN WICKARD V. FILBURN, 317 U.S. 111, 131
(1942), IS APPOSITE:  "IT IS HARDLY LACK OF DUE PROCESS FOR THE
GOVERNMENT TO REGULATE THAT WHICH IT SUBSIDIZES." 

IN ANY EVENT, THE PROVISIONS UNDER ATTACK ARE ENTIRELY REASONABLE AND
DO NOT DEPRIVE APPELLEES OF ANY RIGHTS TO PROPERTY OR WATER.  IT IS
BEYOND DISPUTE THAT EXCESS LAND WILL BE BENEFITED BY DELIVERY OF WATER
TO NEIGHBORING AND NEARBY NONEXCESS LAND.  THIS FACT WAS RECOGNIZED BY
THE CALIFORNIA SUPREME COURT IN THE SANTA BARBARA CASE.  47 CAL. 2D
699, 712, 306 P.2D 875, 883.  FURTHERMORE THE CHIEF ENGINEER OF THE
MADERA DISTRICT SO TESTIFIED BEFORE THE SENATE COMMITTEE ON PUBLIC
LANDS IN 1944.  (FN9)  THE CONTRACTS THEMSELVES INDIRECTLY REFER TO THE
BENEFITS THAT MAY ACCRUE, THROUGH UNDERGROUND WATER IMPROVEMENT, TO
EXCESS OWNERS, BY PROVISIONS WHICH DECLARE THAT SUCH WATER SHALL NOT BE
CONSIDERED AS FURNISHED BY THE PROJECT.  IN OTHER WORDS, ANY BENEFITS
TO THE UNDERGROUND WATER LEVEL UNDER EXCESS ACREAGE WILL NOT BE
CHARGEABLE TO THE OWNER OF SUCH ACREAGE, BUT STILL WILL BE AVAILABLE TO
HIS EXCESS LAND.  WE THEREFORE FIND NO SUBSTANCE IN THE CONTENTION THAT
"POSSIBLE SEVERANCE" OF THE EXCESS ACREAGE WILL RESULT IN DAMAGE
CONSTITUTING A TAKING OF PROPERTY WITHOUT JUST COMPENSATION.  WE DEEM
IT UNNECESSARY TO DISCUSS OTHER CLAIMS IN THIS AREA, BUT REPEAT IN
CONNECTION THEREWITH THAT IF THE UNITED STATES TAKES ANY COMPENSABLE
WATER OR PROPERTY RIGHT THE COURTS ARE OPEN FOR REDRESS. 

AS TO THE CLAIM OF DISCRIMINATION IN THE 160-ACRE LIMITATION, WE
BELIEVE THAT IT OVERLOOKS THE PURPOSE FOR WHICH THE PROJECT WAS
DESIGNED.  THE PROJECT WAS DESIGNED TO BENEFIT PEOPLE, NOT LAND.  IT IS
A REASONABLE CLASSIFICATION TO LIMIT THE AMOUNT OF PROJECT WATER
AVAILABLE TO EACH INDIVIDUAL IN ORDER THAT BENEFITS MAY BE DISTRIBUTED
IN ACCORDANCE WITH THE GREATEST GOOD TO THE GREATEST NUMBER OF
INDIVIDUALS.  THE LIMITATION INSURES THAT THIS ENORMOUS EXPENDITURE
WILL NOT GO IN DISPROPORTIONATE SHARE TO A FEW INDIVIDUALS WITH LARGE
LAND HOLDINGS.  MOREOVER, IT PREVENTS THE USE OF THE FEDERAL
RECLAMATION SERVICE FOR SPECULATIVE PURPOSES.  IN SHORT, THE EXCESS
ACREAGE PROVISION ACTS AS A CEILING, IMPOSED EQUALLY UPON ALL
PARTICIPANTS, ON THE FEDERAL SUBSIDY THAT IS BEING BESTOWED. 

WE ALSO FIND THE OTHER CONTRACT PROVISIONS REASONABLE AND NECESSARY. 
AS WE HAVE POINTED OUT HERETOFORE THE ACT OF JULY 2, 1956, SUPRA,
ANSWERED MOST OF THE OBJECTIONS LODGED AGAINST THESE REQUIREMENTS. 
THAT ACT REQUIRES THE SECRETARY, IN ALL SEC. 9(D) AND SEC. 9(E)
CONTRACTS EXECUTED AFTER ITS PASSAGE, (1) TO INCLUDE A RENEWAL
PROVISION, (2) TO PROVIDE THAT DURING THE TERM OF THE CONTRACT OR ANY
RENEWAL THEREOF THE CONTRACTING PARTIES SHALL HAVE "FIRST RIGHT  ...
TO A STATED SHARE OR QUANTITY OF THE PROJECT'S AVAILABLE WATER SUPPLY,"
AND (3) TO DETERMINE AS SOON AS FEASIBLE THE TOTAL REPAYMENT OBLIGATION
OF THE CONTRACTING PARTIES, CREDITING AGAINST THAT OBLIGATION SO MUCH
OF THE AMOUNT PAID FOR WATER SUPPLY AS IS UNNECESSARY FOR OPERATION AND
MAINTENANCE COSTS UNTIL, AND ONLY UNTIL, THAT OBLIGATION HAS BEEN
LIQUIDATED.  THE SECRETARY IS AUTHORIZED TO NEGOTIATE AMENDMENTS TO
EXISTING CONTRACTS TO INCORPORATE THE FOREGOING AMENDMENTS.  IN VIEW OF
THE DECLARATIONS AND PRIVILEGES INCORPORATED IN THESE AMENDMENTS WE SEE
NO ROOM FOR OBJECTION TO THE CONTRACTS ON THE GROUND THAT THEY INFER
THAT THE WATER USERS ARE NOT ENTITLED TO WATER RIGHTS BEYOND THE 40
YEAR TERMS OF THE CONTRACTS, OR THAT THEY DO NOT MAKE CLEAR THAT THE
DISTRICTS AND LANDOWNERS BECOME FREE OF INDEBTEDNESS UPON REPAYMENT. 

THAT LEAVES TWO OTHER OBJECTIONS, THE FIRST BEING THE FAILURE OF THE
CONTRACTS TO RECITE A DEFINITE SUM AS BEING THE TOTAL AMOUNT DUE FOR
THE WATER SUPPLY FACILITIES.  IT WAS NOT POSSIBLE AT THE TIME OF
EXECUTING THE CONTRACTS, NOR IS IT TODAY, TO DETERMINE THE EXACT AMOUNT
OF EXPENDITURES NECESSARY FOR DAMS AND RESERVOIRS.  THE RECORD SHOWS
THAT ORIGINAL ESTIMATES OFTEN BORE LITTLE RESEMBLANCE TO ULTIMATE
COST.  THE PROJECT IS ONLY TWO-THIRDS COMPLETED, AND ESTIMATES OF THE
REMAINING THIRD CANNOT BE ACCURATELY MADE.  MOREOVER, THE GOVERNMENT
WAS NOT BOUND TO DETERMINE IN ADVANCE OF THE PROJECT'S COMPLETION JUST
WHAT PROPORTION OF THIS TOTAL COST SHOULD BE ATTRIBUTED TO IRRIGATION. 
IN VIEW OF THESE UNCERTAINTIES IT WOULD HAVE BEEN HIGHLY IMPRACTICAL,
IF NOT IMPOSSIBLE, TO RECITE ANY STATED AMOUNT IN THE CONTRACT.  SINCE
NO INTEREST IS CHARGED ON THE AMOUNT DUE, IT IS DIFFICULT TO SEE HOW
HARM OR INCONVENIENCE IS OCCASIONED BY THE DELAY.  THE LAW NOW REQUIRES
THAT ALL AMOUNTS PAID THE GOVERNMENT IN EXCESS OF ITS MAINTENANCE AND
OPERATION COSTS BE CREDITED ON THE OBLIGATIONS OF THE RESPECTIVE
DISTRICTS.  THAT IS AN ENTIRELY ADEQUATE PROTECTION OF THE DISTRICT'S
INTEREST IN NOY PAYING MORE THAN ITS SHARE OF THE PRINCIPAL
FACILITIES. 

SECOND, OBJECTION WAS MADE TO THE ABSENCE OF ANY PROVISION TO THE
EFFECT THAT THE DISTRICTS WOULD OBTAIN TITLE TO THE DISTRIBUTION
SYSTEMS WHEN THEIR OBLIGATIONS THEREFOR HAD BEEN TOTALLY DISCHARGED. 
WE DO NOT UNDERSTAND APPELLEES TO CONTEND THAT THE DISTRICTS AND
LANDOWNERS SHOULD ULTIMATELY OBTAIN TITLE TO THE PRINCIPAL DAMS AND
RESERVOIRS.  THE FACT THAT IRRIGATION INTERESTS ARE BEARING BUT A SMALL
FRACTION OF THE COST OF THE WATER SUPPLY FACILITIES RENDERS SUCH A
SUGGESTION UNTENABLE.  FOR RELATED REASONS WE SEE NO DEFECT IN THE
FAILURE TO GUARANTEE PASSAGE OF TITLE TO THE LOCAL DISTRIBUTING SYSTEMS
AT THE END OF 40 YEARS WHEN IT IS CONTEMPLATED THAT THE OBLIGATION
THEREFOR SHALL HAVE BEEN DISCHARGED.  AS WE HAVE POINTED OUT, EVEN THE
TERMS REGARDING THE DISTRIBUTION SYSTEMS INVOLVE A SUBSTANTIAL FEDERAL
SUBSIDY BECAUSE NO INTEREST IS CHARGED OVER THE 40-YEAR PERIOD DURING
WHICH THE PRINCIPAL AMOUNT IS REPAID.  IN REALITY, THE DISTRICTS WILL
NEVER REPAY THE TOTAL COST OF THESE SYSTEMS.  MOREOVER, IT IS LIKELY
THAT FOR SOME TIME BEYOND THE 40-YEAR PERIOD OF THESE CONTRACTS THE
DISTRICTS WILL REMAIN INDEBTED TO THE FEDERAL GOVERNMENT FOR THEIR
SHARE OF THE COST OF THE WATER SUPPLY FACILITIES.  UNDER SUCH
CIRCUMSTANCES THE RETENTION OF TITLE TO THE DISTRIBUTION SYSTEMS, AT
LEAST UNTIL THE STATED OBLIGATIONS OF THE DISTRICTS ARE DISCHARGED,
SEEMS ENTIRELY CONSISTENT WITH WHAT THE STATE COURT THOUGHT WAS A
"DEBTOR-CREDITOR" RELATIONSHIP.  IN VIEW OF THESE CONSIDERATIONS, WE
THINK IT ALTOGETHER REASONABLE FOR THE FEDERAL GOVERNMENT AND THE
DISTRICTS AND AGENCY INVOLVED TO DEFER THE QUESTION OF TITLE PASSAGE TO
ANOTHER DAY. 

ANY SUGGESTION THAT THE CONGRESS MIGHT BE ARBITRARY IN THE FINAL
ACCOUNTING, OR TRAMPLE UPON ANY OF THE RIGHTS OF APPELLEES, IS HIGHLY
IMPROBABLE.  IT DOES NOT SEEM UNTOWARD FOR THE RECIPIENTS OF A HUGE
FEDERAL BOUNTY TO HAVE TO DEPEND IN SMALL MEASURE ON THE CONTINUED
BENEFICENCE OF THEIR DONOR.  IT WOULD BE A PHYSICAL IMPOSSIBILITY TO
WITHDRAW THE FACILITIES.  AS FOR THE POSSIBILITY OF DISCRIMINATION IN
THE ADMINISTRATION OF THOSE FACILITIES, IT SEEMS FARFETCHED TO FORESEE
THE FEDERAL GOVERNMENT "TURNING ITS BACK UPON A PEOPLE WHO HAD BEEN
BENEFITED BY IT" AND ALLOWING THEIR LANDS TO REVERT TO DESERT.  (FN10)
THE PROSPECT IS TOO IMPROBABLE TO FIGURE IN OUR DECISION. 

FOR THE REASONS SET FORTH ABOVE, THE JUDGMENTS OF THE SUPREME COURT
OF CALIFORNIA ARE REVERSED. 

FN1 SECTION 46 OF THE OMNIBUS ADJUSTMENT ACT OF 1926 REQUIRES THAT
THE CONTRACTS BE CONFIRMED BY DECREE OF A COURT OF COMPETENT
JURISDICTION.  44 STAT. 649, AS AMENDED, 70 STAT. 524, 43 U.S.C. SEC.
423E.  FOR THE APPLICABLE CALIFORNIA STATUTES AUTHORIZING SUCH
PROCEDURE, SEE CAL. WATER CODE, 1956, SEC. 23225 (IRRIGATION
DISTRICTS), AND CAL. STAT.  1945, PP. 2780, 2798, AS AMENDED, CAL.
STAT. 1949, P. 18 (WATER AGENCY).    FN2  SECTION 5:  "  ...  NO RIGHT
TO THE USE OF WATER FOR LAND IN PRIVATE OWNERSHIP SHALL BE SOLD FOR A
TRACT EXCEEDING ONE HUNDRED AND SIXTY ACRES TO ANY ONE LANDOWNER, AND
NO SUCH SALE SHALL BE MADE TO ANY LANDOWNER UNLESS HE BE AN ACTUAL BONA
FIDE RESIDENT ON SUCH LAND, OR OCCUPANT THEREOF RESIDING IN THE
NEIGHBORHOOD OF SAID LAND, AND NO SUCH RIGHT SHALL PERMANENTLY ATTACH
UNTIL ALL PAYMENTS THEREFOR ARE MADE."  32 STAT. 389, 43 U.S.C.  SEC.
431.  THE PROVISION WAS SUBSTANTIALLY RE-ENACTED IN SEC. 46 OF THE
OMNIBUS ADJUSTMENT ACT OF 1926, 44 STAT. 649, AS AMENDED, 70 STAT. 524,
43 U.S.C. SEC. 423E. 

FN3  53 STAT. 1193, AS AMENDED, 59 STAT. 75, 43 U.S.C. SEC. 485H. 
SECRETARY OF THE INTERIOR TO ENTER INTO CONTRACTS TO FURNISH WATER FOR
MUNICIPAL WATER SUPPLY.  SECTION 9(D) INVOLVES CONTRACTS WITH
IRRIGATION DISTRICTS, AND REQUIRES REPAYMENT WITHIN A 40-YEAR PERIOD OF
CONSTRUCTION COSTS ALLOCATED TO IRRIGATION.  SECTION 9(E) AUTHORIZES
THE USE OF AN ALTERNATIVE METHOD OF REPAYMENT, WHEREBY THE SECRETARY
MAY AGREE TO FURNISH WATER FOR IRRIGATION FOR A PERIOD OF 40 YEARS AT
RATES SUFFICIENT "TO COVER AN APPROPRIATE SHARE OF THE ANNUAL OPERATION
AND MAINTENANCE COST AND AN APPROPRIATE SHARE OF SUCH FIXED CHARGES AS
THE SECRETARY DEEMS PROPER, DUE CONSIDERATION BEING GIVEN TO THAT PART
OF THE COST OF CONSTRUCTION OF WORKS CONNECTED WITH WATER SUPPLY AND
ALLOCATED TO IRRIGATION  ...  .  THE COSTS OF ANY IRRIGATION WATER
DISTRIBUTION WORKS CONSTRUCTED BY THE UNITED STATES IN CONNECTION WITH
THE NEW PROJECT, NEW DIVISION OF A PROJECT, OR SUPPLEMENTAL WORKS ON A
PROJECT, SHALL BE COVERED BY A REPAYMENT CONTRACT ENTERED INTO PURSUANT
TO SAID SUBSECTION (D)." 

FN4  SECTION 8:  "THAT NOTHING IN THIS ACT SHALL BE CONSTRUED AS
AFFECTING OR INTENDED TO AFFECT OR TO IN ANY WAY INTERFERE WITH THE
LAWS OF ANY STATE OR TERRITORY RELATING TO THE CONTROL, APPROPRIATION,
USE, OR DISTRIBUTION OF WATER USED IN IRRIGATION, OR ANY VESTED RIGHT
ACQUIRED THEREUNDER, AND THE SECRETARY OF THE INTERIOR, IN CARRYING OUT
THE PROVISIONS OF THIS ACT, SHALL PROCEED IN CONFORMITY WITH SUCH LAWS,
AND NOTHING HEREIN SHALL IN ANY WAY AFFECT ANY RIGHT OF ANY STATE OR OF
THE FEDERAL GOVERNMENT OR OF ANY LANDOWNER, APPROPRIATOR, OR USER OF
WATER IN, TO, OR FROM ANY INTERSTATE STREAM OR THE WATERS THEREOF:
PROVIDED, THAT THE RIGHT TO THE USE OF WATER ACQUIRED UNDER THE
PROVISIONS OF THIS ACT SHALL BE APPURTENANT TO THE LAND IRRIGATED, AND
BENEFICIAL USE SHALL BE THE BASIS, THE MEASURE, AND THE LIMIT OF THE
RIGHT."  32 STAT. 390, 43 U.S.C. SECS. 372, 383. 

FN5  SEE NOTE 3, SUPRA. 

FN6  SEE NOTE 2, SUPRA. 

FN7  SEE NOTE 3, SUPRA. 

FN8  THE ACT RECITES:  "THAT IN VIEW OF THE SPECIAL CIRCUMSTANCES OF
THE SANTA MARIA PROJECT" THE EXCESS LAND LAWS SHOULD NOT BE APPLICABLE
THERETO "SO LONG AS THE WATER UTILIZED ON PROJECT LANDS IS ACQUIRED BY
PUMPING FROM THE UNDERGROUND RESERVOIR."  SEE H.R. REP. NO. 1098, 83D
CONG., 2D SESS. 2-3. 

FN9  "THERE APPEARS TO BE NO DOUBT, THEREFORE, THAT WITH THE
INTRODUCTION OF SURFACE IRRIGATION AND THE CONSEQUENT CESSATION OF
PUMPING BY THOSE USING SURFACE WATER, EXCESS LANDS WILL RECEIVE DIRECT
BENEFITS IN THE WAY OF A HIGHER WATER TABLE, WITH CONSEQUENT
IMPROVEMENT IN QUALITY, PLUS LOWER PUMPING COSTS, AND ABOVE ALL,
REASONABLE ASSURANCE THAT THE WATER TABLE WILL NOT FALL TO THE DANGER
POINT."  HEARINGS BEFORE SENATE COMMITTEE ON PUBLIC LANDS ON S. 912,
80TH CONG., 1ST SESS. 1221. 

FN10 SENATOR GORE (THEN REPRESENTATIVE) GAVE THIS COMPELLING ANSWER
TO THESE TREPIDATIONS IN 1947: 

"I CANNOT CONCEIVE OF A GOVERNMENT THAT WOULD SPEND $384,000,000
BUILDING ONE OF THE GREAT RECLAMATION-IRRIGATION PROJECTS OF THE WORLD
AND SUDDENLY BECAUSE SOME EVIL AGENT OF GOVERNMENT HAD GOTTEN INTO A
BUREAU, TURNING ITS BACK UPON A PEOPLE WHO HAD BEEN BENEFITED BY IT AND
WHO IN TURN HAD GREATLY BENEFITED THE NATION BY PRODUCTION OF
FOODSTUFFS AND WEALTH.  I JUST DO NOT CONCEIVE OF THE UNITED STATES AS
BEING THAT KIND  ...  ."  HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON APPROPRIATIONS ON THE INTERIOR DEPARTMENT APPROPRIATION
BILL FOR 1948, 80TH CONG., 1ST SESS. 737. 
..END :















MILLER V. UNITED STATES 357 U.S. 301 


NO. 126.  ARGUED JANUARY 28, 1958 - DECIDED JUNE 23, 1958 - 100 U.S.
APP. D.C. 302, 244 F.2D 750, REVERSED. 


IN THE DISTRICT OF COLUMBIA, OFFICERS WITHOUT A WARRANT KNOCKED ON THE
DOOR OF PETITIONER'S APARTMENT AND UPON HIS INQUIRY, "WHO'S THERE?" 
REPLIED IN A LOW VOICE, "POLICE."  PETITIONER OPENED THE DOOR BUT
QUICKLY TRIED TO CLOSE IT, WHEREUPON THE OFFICERS BROKE THE DOOR,
ENTERED, ARRESTED PETITIONER AND SEIZED MARKED BILLS WHICH WERE LATER
ADMITTED AS EVIDENCE OVER PETITIONER'S OBJECTION AT A TRIAL IN WHICH HE
WAS CONVICTED OF VIOLATIONS OF THE NARCOTICS LAWS.  HELD:  PETITIONER
COULD NOT LAWFULLY BE ARRESTED IN HIS HOME BY OFFICERS BREAKING IN
WITHOUT FIRST GIVING HIM NOTICE OF THEIR AUTHORITY AND PURPOSE, THE
ARREST WAS UNLAWFUL, THE EVIDENCE SEIZED WAS INADMISSIBLE, AND THE
CONVICTION IS REVERSED.  PP. 302-314. 

(A)  THE VALIDITY OF AN ARREST WITHOUT A WARRANT FOR VIOLATION OF
FEDERAL LAW BY LOCAL PEACE OFFICERS IS TO BE DETERMINED BY REFERENCE TO
LOCAL LAW.  PP. 305-306. 

(B)  UNDER DISTRICT OF COLUMBIA LAW, PEACE OFFICERS, OTHERWISE
AUTHORIZED TO BREAK THE DOOR OF A HOME TO MAKE AN ARREST, MAY DO SO
ONLY IF DENIED ADMITTANCE AFTER NOTICE OF THEIR AUTHORITY AND PURPOSE. 
PP. 306-310. 

(C)  SINCE NO EXPRESS ANNOUNCEMENT WAS MADE AND SINCE THE EVIDENCE IN
THIS CASE WAS NOT SUFFICIENT TO PROVE THAT PETITIONER KNEW THE PURPOSE
OF THE ARRESTING OFFICERS, THE ARREST WAS UNLAWFUL.  PP. 310-313. 

MILLER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER, WILLIAM MILLER, TOGETHER WITH BESSIE BYRD AND HER
BROTHER, ARTHUR R. SHEPHERD, WAS TRIED AND CONVICTED IN THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA FOR CONSPIRACY TO COMMIT VIOLATIONS,
AND VIOLATIONS, OF THE FEDERAL NARCOTICS LAWS.  26 U.S.C.  SUPP. V)
SEC. 4704(A), 21 U.S.C. SEC. 174, 18 U.S.C. SEC. 371.  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED, ONE JUDGE
DISSENTING, 100 U.S. APP. D.C. 302, 244 F.2D 750.  WE GRANTED
CERTIORARI, 353 U.S. 957, TO DETERMINE WHETHER EVIDENCE SEIZED AT THE
TIME OF PETITIONER'S ARREST WAS PROPERLY ADMITTED AGAINST THE
PETITIONER.  THE EVIDENCE WAS $100 OF MARKED CURRENCY WHICH WAS SEIZED
BY THE FEDERAL OFFICERS WHO ARRESTED THE PETITIONER AND BESSIE BYRD AT
THEIR APARTMENT. 

ON MARCH 25, 1955, AT 1:35 A.M., CLIFFORD REED WAS ARRESTED, UNDER AN
ARREST WARRANT, ON A WASHINGTON, D.C., STREET ON SUSPICION OF NARCOTICS
OFFENSES.  REED REVEALED TO WILSON, A FEDERAL NARCOTICS AGENT, THAT HE
PURCHASED HEROIN IN 100-CAPSULE QUANTITIES FROM THE PETITIONER THROUGH
SHEPHERD.  AGENT WILSON KNEW OF THE PETITIONER AS ONE WHO HAD
TRAFFICKED IN NARCOTICS AND HAD BEEN CONVICTED FOR A NARCOTICS OFFENSE
IN 1953.  REED SAID THAT HE WAS TO MEET SHEPHERD LATER THAT MORNING TO
MAKE A PURCHASE.  AGENT WILSON ENLISTED HIS AID TO APPREHEND SHEPHERD
AND THE PETITIONER.   ABOUT 3 A.M. ANOTHER FEDERAL NARCOTICS AGENT,
LEWIS, CARRYING $100 OF MARKED CURRENCY, WENT WITH REED IN A TAXICAB TO
SHEPHERD'S HOME.  REED INTRODUCED LEWIS TO SHEPHERD AS A BUYER. 
SHEPHERD ACCEPTED THE $100 AND AGREED TO SECURE 100 CAPSULES OF HEROIN
FROM THE PETITIONER AND DELIVER THEM TO LEWIS AT REED'S APARTMENT. 
SHEPHERD PROCEEDED ALONE IN THE TAXICAB TO THE PETITIONER'S APARTMENT. 

THE TAXICAB WAS FOLLOWED BY AGENT WILSON, OFFICER WURMS OF THE
METROPOLITAN POLICE DEPARTMENT, AND OTHER OFFICERS IN POLICE CARS. 
(FN1)  SHEPHERD WAS SEEN TO LEAVE THE TAXICAB IN FRONT OF THE APARTMENT
HOUSE WHERE THE PETITIONER AND BESSIE BYRD OCCUPIED A TWO-ROOM-AND-BATH
BASEMENT APARTMENT.  THE TAXICAB WAITED.  SHEPHERD ENTERED THE BASEMENT
BUT AGENT WILSON, WHO LOOKED INTO THE BASEMENT HALL, COULD NOT SEE
WHERE HE WENT.  SHEPHERD CAME OUT OF THE BASEMENT WITHIN A FEW MINUTES
AND RE-ENTERED THE TAXICAB.  THE TAXICAB WAS PROCEEDING TOWARD REED'S
APARTMENT WHEN THE OFFICERS FOLLOWING IN THE POLICE CARS INTERCEPTED
IT.  SHEPHERD WAS ARRESTED AND SEARCHED.  HE DID NOT HAVE THE MARKED
BILLS ON HIS PERSON BUT ADMITTED TO AGENT WILSON AND OFFICER WURMS THAT
A PACKAGE OF 100 CAPSULES OF NARCOTICS FOUND UNDER THE TAXICAB'S FRONT
SEAT WAS PUT THERE BY HIM WHEN THE POLICE CARS STOPPED THE TAXICAB.  HE
SAID THAT HE HAD TAKEN THE PACKAGE FROM BEHIND A FIRE EXTINGUISHER IN
THE BASEMENT HALL WHERE HE HAD BEEN SENT BY A "FELLOW" WITH REED WHO
HAD PROMISED HIM $10 FOR GETTING IT. 

THE FEDERAL OFFICERS RETURNED IMMEDIATELY TO THE APARTMENT BUILDING. 
ABOUT 3:45 A.M.  AGENT WILSON AND OFFICER WURMS WENT TO THE DOOR OF THE
PETITIONER'S APARTMENT.  OFFICER WURMS KNOCKED AND, UPON THE INQUIRY
FROM WITHIN - "WHO'S THERE?"  - REPLIED IN A LOW VOICE, "POLICE."  THE
PETITIONER OPENED THE DOOR ON AN ATTACHED DOOR CHAIN AND ASKED WHAT THE
OFFICERS WERE DOING THERE.  BEFORE EITHER RESPONDED, HE ATTEMPTED TO
CLOSE THE DOOR.  THEREUPON, ACCORDING TO OFFICER WURMS, "WE PUT OUR
HANDS INSIDE THE DOOR AND PULLED AND RIPPED THE CHAIN OFF, AND
ENTERED."  (FN2)  THE OFFICERS HAD NO ARREST OR SEARCH WARRANT.  THEY
DID NOT EXPRESSLY DEMAND ADMISSION OR STATE THEIR PURPOSE FOR THEIR
PRESENCE, (FN3) NOR DID THEY PLACE THE PETITIONER UNDER ARREST UNTIL
AFTER THEY ENTERED THE APARTMENT. 

BESSIE BYRD WAS ALSO ARRESTED IN THE APARTMENT AND TURNED OVER THE
CASH SHE HAD IN HER HOUSECOAT.  THE CASH INCLUDED $34 OF THE MARKED
CURRENCY.  AFTER AN EXTENDED SEARCH THE REMAINING $66 OF MARKED
CURRENCY WAS FOUND, SOME IN A HATBOX IN A CLOSET, AND THE REST WITHIN
THE COVERS OF A BED IN THE BEDROOM. 

THE GOVERNMENT CONTENDS THAT THERE WAS PROBABLE CAUSE FOR ARRESTING
THE PETITIONER AND THAT THE MARKED CURRENCY WAS PROPERLY ADMITTED IN
EVIDENCE BECAUSE IT WAS SEIZED AS AN INCIDENT TO A LAWFUL ARREST. 
HARRIS V. UNITED STATES, 331 U.S. 145.  THE PETITIONER'S ARGUMENT
BREAKS DOWN INTO THREE CONTENTIONS:  (1) THAT THE OFFICERS HAD NO
PROBABLE CAUSE TO ARREST THE PETITIONER WITHOUT A WARRANT; (2) THAT THE
SEARCH WAS NOT JUSTIFIED AS BEING AN INCIDENT OF A LAWFUL ARREST; (3)
THAT THE ARREST, AND THEREFORE THE SEARCH, WAS IN ANY EVENT UNLAWFUL
BECAUSE THE OFFICERS BROKE THE DOOR OF PETITIONER'S HOME WITHOUT FIRST
GIVING NOTICE OF THEIR AUTHORITY AND PURPOSE IN DEMANDING ADMISSION. 
IF ANY ONE OF THESE CONTENTIONS PREVAILS, IT IS AGREED THAT THE MARKED
MONEY WAS INADMISSIBLE IN EVIDENCE.  IN THE VIEW WE TAKE, WE NEED
CONSIDER ONLY PETITIONER'S THIRD CONTENTION. 

THE LAWFULNESS OF THE ARREST OF PETITIONER DEPENDS UPON THE POWER OF
THE ARRESTING OFFICERS TO "BREAK" THE DOORS OF A HOME IN ORDER TO
ARREST WITHOUT WARRANT PERSONS SUSPECTED OF HAVING COMMITTED NARCOTICS
OFFENSES.  AGENT WILSON DID NOT HAVE STATUTORY AUTHORITY TO ARREST
WITHOUT A WARRANT ALTHOUGH OFFICER WURMS, AS A MEMBER OF THE
METROPOLITAN POLICE DEPARTMENT, DID HAVE SUCH AUTHORITY.  (FN4)  THIS
COURT HAS SAID, IN THE SIMILAR CIRCUMSTANCE OF AN ARREST FOR VIOLATION
OF FEDERAL LAW BY STATE PEACE OFFICERS, THAT THE LAWFULNESS OF THE
ARREST WITHOUT WARRANT IS TO BE DETERMINED BY REFERENCE TO STATE LAW. 
UNITED STATES V. DI RE, 332 U.S. 581, 589; JOHNSON V. UNITED STATES,
333 U.S. 10, 15.  BY LIKE REASONING THE VALIDITY OF THE ARREST OF
PETITIONER IS TO BE DETERMINED BY REFERENCE TO THE LAW OF THE DISTRICT
OF COLUMBIA. 

IN MAKING REFERENCE TO THAT LAW WE ARE MINDFUL OF OUR POLICY OF NOT
INTERFERING WITH LOCAL RULES OF LAW FASHIONED BY THE COURTS OF THE
DISTRICT OF COLUMBIA.  FISHER V. UNITED STATES, 328 U.S. 463, 476;
GRIFFIN V. UNITED STATES, 336 U.S. 704, 715.  BUT THE GOVERNMENT AGREES
WITH PETITIONER THAT THE VALIDITY OF THE ENTRY TO EXECUTE THE ARREST
WITHOUT WARRANT MUST BE TESTED BY CRITERIA IDENTICAL WITH THOSE
EMBODIED IN 18 U.S.C. SEC. 3109, WHICH DEALS WITH ENTRY TO EXECUTE A
SEARCH WARRANT.  (FN5)  THAT SECTION PROVIDES THAT AN OFFICER,
EXECUTING A SEARCH WARRANT, MAY BREAK OPEN A DOOR ONLY IF, "AFTER
NOTICE OF HIS AUTHORITY AND PURPOSE," HE IS DENIED ADMITTANCE.  THE
GOVERNMENT STATES IN ITS BRIEF THAT, "WHERE AN ARREST IS MADE ON
PROBABLE CAUSE RATHER THAN A WARRANT, THESE STATUTORY REQUIRMENTS MUST
BE MET BEFORE AN OFFICER CAN FORCE ENTRY INTO AN APARTMENT."  THESE
STATUTORY REQUIREMENTS ARE SUBSTANTIALLY IDENTICAL TO THOSE JUDICIALLY
DEVELOPED BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
IN ACCARINO V. UNITED STATES, 85 U.S. APP. D.C. 394, 403, 179 F.2D 456,
465.  SINCE THE RULE OF ACCARINO BEARS SUCH A CLOSE RELATIONSHIP TO A
STATUTE WHICH IS NOT CONFINED IN OPERATION TO THE DISTRICT OF COLUMBIA,
WE BELIEVE THAT REVIEW IS WARRANTED HERE.  CF. DEL VECCHIO V. BOWERS,
296 U.S. 280; CARROLL V. UNITED STATES, 354 U.S. 394, 414. 

FROM EARLIEST DAYS, THE COMMON LAW DRASTICALLY LIMITED THE AUTHORITY
OF LAW OFFICERS TO BREAK THE DOOR OF A HOUSE TO EFFECT AN ARREST. 
(FN6)  SUCH ACTION INVADES THE PRECIOUS INTEREST OF PRIVACY SUMMED UP
IN THE ANCIENT ADAGE THAT A MAN'S HOUSE IS HIS CASTLE.  AS EARLY AS THE
13TH YEARBOOK OF EDWARD IV (1461-1483), AT FOLIO 9, THERE IS A RECORDED
HOLDING THAT IT WAS UNLAWFUL FOR THE SHERIFF TO BREAK THE DOORS OF A
MAN'S HOUSE TO ARREST HIM IN A CIVIL SUIT IN DEBT OR TRESPASS, FOR THE
ARREST WAS THEN ONLY FOR THE PRIVATE INTEREST OF A PARTY.  REMARKS
ATTRIBUTED (FN7) TO WILLIAM PITT, EARL OF CHATHAM, ON THE OCCASION OF
DEBATE IN PARLIAMENT ON THE SEARCHES INCIDENT TO THE ENFORCEMENT OF AN
EXCISE ON CIDER, ELOQUENTLY EXPRESSED THE PRINCIPLE: 

"THE POOREST MAN MAY IN HIS COTTAGE BID DEFIANCE TO ALL THE FORCES OF
THE CROWN.  IT MAY BE FRAIL; ITS ROOF MAY SHAKE; THE WIND MAY BLOW
THROUGH IT; THE STORM MAY ENTER; THE RAIN MAY ENTER; BUT THE KING OF
ENGLAND CANNOT ENTER - ALL HIS FORCE DARES NOT CROSS THE THRESHOLD OF
THE RUINED TENEMENT]" 

BUT THE COMMON LAW RECOGNIZED SOME AUTHORITY IN LAW OFFICERS TO BREAK
THE DOOR OF A DWELLING TO ARREST FOR FELONY.  THE COMMON-LAW
AUTHORITIES DIFFER, HOWEVER, AS TO THE CIRCUMSTANCES IN WHICH THIS WAS
THE CASE.  HAWKINS SAYS:  "WHERE ONE LIES UNDER A PROBABLE SUSPICION
ONLY, AND IS NOT INDICTED, IT SEEMS THE BETTER OPINION AT THIS DAY,
THAT NO ONE CAN JUSTIFY THE BREAKING OPEN DOORS IN ORDER TO APPREHEND
HIM."  2 HAWKINS, PLEAS OF THE CROWN (1762), C. 14, SEC. 7; SEE ALSO
FOSTER, CROWN LAW (1762), 320-321.  COKE APPEARS TO HAVE BEEN OF THE
SAME VIEW, AND TO HAVE THOUGHT THAT THE BREAKING OF A HOUSE WAS LIMITED
TO CASES IN WHICH A WRIT, NOW OUR WARRANT, HAD ISSUED.  CO. 4TH INST. 
177.  ON THE OTHER HAND, HALE SAYS THAT "A MAN, THAT ARRESTS UPON
SUSPICION OF FELONY, MAY BREAK OPEN DOORS, IF THE PARTY REFUSE UPON
DEMAND TO OPEN THEM  ...  ."  1 HALE, PLEAS OF THE CROWN (1736), 583. 

WHATEVER THE CIRCUMSTANCES UNDER WHICH BREAKING A DOOR TO ARREST FOR
FELONY MIGHT BE LAWFUL, HOWEVER, THE BREAKING WAS UNLAWFUL WHERE THE
OFFICER FAILED FIRST TO STATE HIS AUTHORITY AND PURPOSE FOR DEMANDING
ADMISSION.  THE REQUIREMENT WAS PRONOUNCED IN 1603 IN SEMAYNE'S CASE, 5
CO. REP. 91A, 11 E.R.C. 629, 77 ENG. REPR.  194, AT 195:  "IN ALL CASES
WHERE THE KING IS PARTY, THE SHERIFF (IF THE DOORS BE NOT OPEN) MAY
BREAK THE PARTY'S HOUSE, EITHER TO ARREST HIM, OR TO DO OTHER EXECUTION
OF THE KING'S PROCESS, IF OTHERWISE HE CANNOT ENTER.  BUT BEFORE HE
BREAKS IT, HE OUGHT TO SIGNIFY THE CAUSE OF HIS COMING, AND TO MAKE
REQUEST TO OPEN DOORS  ...  ." 

THE REQUIREMENT STATED IN SEMAYNE'S CASE STILL OBTAINS.  IT IS
REFLECTED IN 18 U.S.C.  SEC. 3109, IN THE STATUTES OF A LARGE NUMBER OF
STATES, (FN8) AND IN THE AMERICAN LAW INSTITUTE'S PROPOSED CODE OF
CRIMINAL PROCEDURE, SEC. 28.  (FN9)  IT APPLIES, AS THE GOVERNMENT HERE
CONCEDES, WHETHER THE ARREST IS TO BE MADE BY VIRTUE OF A WARRANT, OR
WHEN OFFICERS ARE AUTHORIZED TO MAKE AN ARREST FOR A FELONY WITHOUT A
WARRANT.  THERE ARE SOME STATE DECISIONS HOLDING THAT JUSTIFICATION FOR
NONCOMPLIANCE EXISTS IN EXIGENT CIRCUMSTANCES, AS, FOR EXAMPLE, WHEN
THE OFFICERS MAY IN GOOD FAITH BELIEVE THAT THEY OR SOMEONE WITHIN ARE
IN PERIL OF BODILY HARM, READ V. CASE, 4 CONN. 166, OR THAT THE PERSON
TO BE ARRESTED IS FLEEING OR ATTEMPTING TO DESTROY EVIDENCE.  PEOPLE V.
MADDOX, 46 CAL. 2D 301, 294 P.2D 6. 

BUT WHETHER THE UNQUALIFIED REQUIREMENTS OF THE RULE ADMIT OF AN
EXCEPTION JUSTIFYING NONCOMPLIANCE IN EXIGENT CIRCUMSTANCES IS NOT A
QUESTION WE ARE CALLED UPON TO DECIDE IN THIS CASE.  THE GOVERNMENT
MAKES NO CLAIM HERE OF THE EXISTENCE OF CIRCUMSTANCES EXCUSING
COMPLIANCE.  THE GOVERNMENT CONCEDES THAT COMPLIANCE WAS REQUIRED BUT
ARGUES THAT "COMPLIANCE IS EVIDENT FROM THE EVENTS IMMEDIATELY
PRECEDING THE OFFICERS' FORCED ENTRY." 

THE RULE SEEMS TO REQUIRE NOTICE IN THE FORM OF AN EXPRESS
ANNOUNCEMENT BY THE OFFICERS OF THEIR PURPOSE FOR DEMANDING ADMISSION. 
THE BURDEN OF MAKING AN EXPRESS ANNOUNCEMENT IS CERTAINLY SLIGHT.  A
FEW MORE WORDS BY THE OFFICERS WOULD HAVE SATISFIED THE REQUIREMENT IN
THIS CASE.  IT MAY BE THAT, WITHOUT AN EXPRESS ANNOUNCEMENT OF PURPOSE,
THE FACTS KNOWN TO OFFICERS WOULD JUSTIFY THEM IN BEING VIRTUALLY
CERTAIN THAT THE PETITIONER ALREADY KNOWS THEIR PURPOSE SO THAT AN
ANNOUNCEMENT WOULD BE A USELESS GESTURE.  CF. PEOPLE V. MARTIN, 45 CAL.
2D 755, 290 P.2D 855; WILGUS, ARREST WITHOUT A WARRANT, 22 MICH. L.
REV. 541, 798, 802 (1924).  (FN10)  BUT EVEN BY THAT TEST THE EVIDENCE
UPON WHICH THE GOVERNMENT RELIES WAS NOT SUFFICIENT TO JUSTIFY THE
OFFICERS' FAILURE EXPRESSLY TO NOTIFY THE PETITIONER THAT THEY DEMANDED
ADMISSION TO HIS APARTMENT FOR THE PURPOSE OF ARRESTING HIM. 

THE SINGLE FACT KNOWN TO THE OFFICERS UPON WHICH THE GOVERNMENT
RELIES IS THE "SPLIT-SECOND" OCCURRENCE IN WHICH THE PETITIONER EVINCED
"INSTANTANEOUS RESISTANCE TO THEIR ENTRY," AN "ALMOST INSTINCTIVE
ATTEMPT TO BAR THEIR ENTRY AFTER THEY (THE OFFICERS) HAD IDENTIFIED
THEMSELVES AS POLICE  ...  ."  IT IS ARGUED THAT THIS OCCURRENCE
"CERTAINLY POINTS UP THAT HE KNEW THEIR PURPOSE IMMEDIATELY  ...  AND,
AT ONCE, REALIZED THAT HE HAD BEEN DETECTED AND THAT THE OFFICERS WERE
THERE TO ARREST HIM"; THAT "IT WOULD BE WHOLLY UNREALISTIC TO SAY THAT
THE OFFICERS HAD NOT MADE THEIR PURPOSE KNOWN BECAUSE THEY DID NOT MORE
FORMALLY ANNOUNCE THAT THEY WERE THERE TO ARREST HIM." 

BUT, FIRST, THE FACT THAT PETITIONER ATTEMPTED TO CLOSE THE DOOR DID
NOT OF ITSELF PROVE THAT HE KNEW THEIR PURPOSE TO ARREST HIM.  IT WAS
AN AMBIGUOUS ACT.  IT COULD HAVE BEEN MERELY THE EXPECTED REACTION OF
ANY CITIZEN HAVING THIS EXPERIENCE AT THAT HOUR OF THE MORNING,
PARTICULARLY SINCE IT DOES NOT APPEAR THAT THE OFFICERS WERE IN
UNIFORM, CF.  ACCARINO V. UNITED STATES, SUPRA, 85 U.S. APP. D.C., AT
403, 179 F.2D, AT 465, AND THE ANSWER "POLICE" WAS SPOKEN "IN A LOW
VOICE" AND MIGHT NOT HAVE BEEN HEARD BY THE PETITIONER SO FAR AS THE
OFFICERS COULD TELL.    SECOND, PETITIONER'S REACTION UPON OPENING THE
DOOR COULD ONLY HAVE CREATED DOUBT IN THE OFFICERS' MINDS THAT HE KNEW
THEY WERE POLICE INTENT ON ARRESTING HIM.  ON THE MOTION TO SUPPRESS,
AGENT WILSON TESTIFIED THAT "HE WANTED TO KNOW WHAT WE WERE DOING
THERE."  THIS QUERY, WHICH WENT UNANSWERED, IS ON ITS FACE INCONSISTENT
WITH KNOWLEDGE.  THE MAJORITY OF THE COURT OF APPEALS DENIED THE IMPORT
OF THE QUERY BY INFERRING THAT MILLER KNEW WILSON AND WURMS PERSONALLY
AND RECOGNIZED THEM AS SOON AS HE OPENED THE DOOR.  THAT INFERENCE HAS
NO SUPPORT IN THE RECORD.  (FN11)  BUT EVEN IF THIS INFERENCE WERE
SUPPORTABLE, MILLER'S RECOGNITION OF WILSON AND WURMS AS POLICE
OFFICERS WOULD NOT HAVE JUSTIFIED THEM, IN LIGHT OF OTHER FACTS KNOWN
TO THEM, IN BEING VIRTUALLY CERTAIN THAT MILLER ACTUALLY KNEW THE
REASON FOR THEIR PRESENCE.  THE OFFICERS KNEW THAT PETITIONER WAS
UNAWARE OF SHEPHERD'S ARREST, THEY KNEW THAT HE WAS UNAWARE THAT THE
CURRENCY WAS MARKED; THEY KNEW THAT HE WAS UNAWARE THAT THEIR PRESENCE
WAS PURSUANT TO A PLAN, INITIATED BY REED'S DISCLOSURES, TO CATCH THE
PETITIONER IN A CRIMINAL ACT.  MOREOVER, THEY DID NOT ACTUALLY KNOW
THAT PETITIONER HAD MADE A SALE TO SHEPHERD AND RECEIVED THE MARKED
MONEY, FOR SHEPHERD HAD NOT TALKED AND HAD NOT BEEN SEEN TO ENTER
PETITIONER'S APARTMENT.  THE FACT THAT THE MARKED MONEY WAS FOUND IN
THE APARTMENT HAS NO BEARING UPON THE PETITIONER'S KNOWLEDGE OF THE
OFFICERS' PURPOSE SINCE HE DID NOT KNOW THAT THE MONEY WAS MARKED. 
THIS COURT SAID IN UNITED STATES V. DI RE, SUPRA, AT 595:  "WE HAVE HAD
FREQUENT OCCASION TO POINT OUT THAT A SEARCH IS NOT TO BE MADE LEGAL BY
WHAT IT TURNS UP.  IN LAW IT IS GOOD OR BAD WHEN IT STARTS AND DOES NOT
CHANGE CHARACTER FROM ITS SUCCESS."  THE MOST THAT CAN BE SAID IS THAT
THE PETITIONER'S ACT IN ATTEMPTING TO CLOSE THE DOOR MIGHT BE THE BASIS
FOR THE OFFICERS BEING VIRTUALLY CERTAIN THAT THE PETITIONER KNEW THERE
WERE POLICE AT HIS DOOR CONDUCTING AN INVESTIGATION.  THIS, HOWEVER,
FALLS SHORT OF A VIRTUAL CERTAINTY THAT THE PETITIONER KNEW OF THEIR
PURPOSE TO ARREST HIM.  THE REQUIREMENT IS NOT MET EXCEPT BY NOTICE OF
THAT PURPOSE, FOR THE GOVERNMENT ADMITS THAT THE OFFICERS HAD NO
AUTHORITY TO BREAK THE PETITIONER'S DOOR EXCEPT TO ARREST HIM.  WE
MUST, THEREFORE, CONCLUDE THAT THE PETITIONER DID NOT RECEIVE THE
REQUIRED NOTICE OF AUTHORITY AND PURPOSE. 

WE ARE DULY MINDFUL OF THE RELIANCE THAT SOCIETY MUST PLACE FOR
ACHIEVING LAW AND ORDER UPON THE ENFORCING AGENCIES OF THE CRIMINAL
LAW.  BUT INSISTENCE ON OBSERVANCE BY LAW OFFICERS OF TRADITIONAL FAIR
PROCEDURAL REQUIREMENTS IS, FROM THE LONG POINT OF VIEW, BEST
CALCULATED TO CONTRIBUTE TO THAT END.  HOWEVER MUCH IN A PARTICULAR
CASE INSISTENCE UPON SUCH RULES MAY APPEAR AS A TECHNICALITY THAT
INURES TO THE BENEFIT OF A GUILTY PERSON, THE HISTORY OF THE CRIMINAL
LAW PROVES THAT TOLERANCE OF SHORTCUT METHODS IN LAW ENFORCEMENT
IMPAIRS ITS ENDURING EFFECTIVENESS.  THE REQUIREMENT OF PRIOR NOTICE OF
AUTHORITY AND PURPOSE BEFORE FORCING ENTRY INTO A HOME IS DEEPLY ROOTED
IN OUR HERITAGE AND SHOULD NOT BE GIVEN GRUDGING APPLICATION. 
CONGRESS, CODIFYING A TRADITION EMBEDDED IN ANGLO-AMERICAN LAW, HAS
DECLARED IN SEC. 3109 THE REVERENCE OF THE LAW FOR THE INDIVIDUAL'S
RIGHT OF PRIVACY IN HIS HOUSE.  (FN12)  EVERY HOUSEHOLDER, THE GOOD AND
THE BAD, THE GUILTY AND THE INNOCENT, IS ENTITLED TO THE PROTECTION
DESIGNED TO SECURE THE COMMON INTEREST AGAINST UNLAWFUL INVASION OF THE
HOUSE.  THE PETITIONER COULD NOT BE LAWFULLY ARRESTED IN HIS HOME BY
OFFICERS BREAKING IN WITHOUT FIRST GIVING HIM NOTICE OF THEIR AUTHORITY
AND PURPOSE.  BECAUSE THE PETITIONER DID NOT RECEIVE THAT NOTICE BEFORE
THE OFFICERS BROKE THE DOOR TO INVADE HIS HOME, THE ARREST WAS
UNLAWFUL, AND THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED. 
REVERSED. 

FN1  THE GROUP INCLUDED TWO FEDERAL BUREAU OF NARCOTICS AGENTS,
WILSON AND PAPPAS, OFFICER WURMS OF THE DISTRICT OF COLUMBIA
METROPOLITAN POLICE DEPARTMENT, AND OFFICERS BOWMAN AND THOMPSON OF THE
VIRGINIA STATE POLICE, WHO WERE TRAINEES IN THE NARCOTICS PROGRAM OF
THE STATE OF VIRGINIA. 

FN2  OFFICER WURMS TESTIFIED: 

"THE WITNESS:  AGENT WILSON AND I WERE AT THE FRONT DOOR OF THE
APARTMENT NO. 1, 1337 COLUMBIA ROAD.  I KNOCKED ON THE FRONT DOOR.  I
SAID - SOMEBODY ASKED, 'WHO'S THERE?'  I SAID, 'BLUE' (THE PETITIONER'S
NICKNAME) - IN A LOW VOICE, I SAID 'POLICE.' 

"I REPEATED IT TWO OR THREE TIMES, IN THAT MANNER. 

"THE DOOR OPENED.  THERE WAS A CHAIN ON THE DOOR.  BLUE MILLER SAW
ME, AGENT WILSON, AND I DON'T KNOW WHO ELSE HE SAW BUT HE TRIED TO
CLOSE THE DOOR AND AT THAT TIME WE PUT OUR HANDS INSIDE THE DOOR AND
PULLED AND RIPPED THE CHAIN OFF, AND ENTERED." 

FN3  AT THE TRIAL, BUT NOT AT THE HEARING ON THE MOTION TO SUPPRESS,
AGENT WILSON TESTIFIED, "HE SAID, 'WHAT DO YOU-ALL WANT?'  AND WE SAYS,
'POLICE, YOU ARE UNDER ARREST, WE WANT IN.'  HE SAYS HE WAS NOT GOING
TO LET US IN, OR SOMETHING LIKE THAT, AND SO OFFICER WURMS TOOK AHOLD
OF THE DOOR AND PULLED IT OPEN."  BUT APPARENTLY THE GOVERNMENT IS
SATISFIED THAT AGENT WILSON WAS MISTAKEN IN SAYING THAT THERE WAS
MENTION OF THE PURPOSE TO ARREST.  HIS TESTIMONY ON THE MOTION TO
SUPPRESS AS WELL AS THE TESTIMONY OF OFFICER WURMS, BOTH ON THE MOTION
AND AT THE TRIAL, IS CONTRARY.  THE GOVERNMENT IN ITS BRIEF REFERS TO
THIS TESTIMONY MERELY IN FOOTNOTES.  ITS BRIEF ACCEPTS THE PETITIONER'S
PREMISE THAT THE CASE SHOULD BE DECIDED UPON THE BASIS THAT THE
EVIDENCE SHOWS THAT THE OFFICERS DID NOT FORMALLY ANNOUNCE THEIR
PURPOSE.  THE COURT OF APPEALS DECIDED THE CASE ON THE BASIS THAT
WILSON DID NOT MAKE THE STATEMENT.  100 U.S. APP. D.C. 302, 306, 244
F.2D 750, 754. 

FN4  NARCOTICS AGENTS WERE SUBSEQUENTLY GIVEN AUTHORITY BY 26 U.S.C.
SEC. 7607, ADDED JULY 18, 1956, TO MAKE AN ARREST WHERE THE AGENTS HAVE
"REASONABLE GROUNDS TO BELIEVE THAT THE PERSON TO BE ARRESTED HAS
COMMITTED" A NARCOTICS OFFENSE.  IN THE DISTRICT OF COLUMBIA PEACE
OFFICERS HAVING PROBABLE CAUSE TO BELIEVE THAT A FELONY IS BEING, OR
HAS BEEN, COMMITTED ARE EMPOWERED TO ARREST WITHOUT A WARRANT. 
WRIGHTSON V. UNITED STATES, 98 U.S. APP. D.C. 377, 378, 236 F.2D 672,
673 (C.A.D.C. CIR.). 

FN5  18 U.S.C. SEC. 3109: 

"THE OFFICER MAY BREAK OPEN ANY OUTER OR INNER DOOR OR WINDOW OF A
HOUSE, OR ANY PART OF A HOUSE, OR ANYTHING THEREIN, TO EXECUTE A SEARCH
WARRANT, IF, AFTER NOTICE OF HIS AUTHORITY AND PURPOSE, HE IS REFUSED
ADMITTANCE OR WHEN NECESSARY TO LIBERATE HIMSELF OR A PERSON AIDING HIM
IN THE EXECUTION OF THE WARRANT." 

THE PETITIONER DOES NOT RAISE A QUESTION OF THE APPLICATION OF D.C.
CODE, 1951, SEC.  4-141.  SEE ALSO SEC. 4-145. 

FN6  JUDGE PRETTYMAN'S OPINION FOR THE COURT OF APPEALS IN ACCARINO
V. UNITED STATES, 85 U.S. APP. D.C. 394, 179 F.2D 456, DISCUSSES
COMPREHENSIVELY THE DEVELOPMENT OF THE LAW.  SEE ALSO THE EXHAUSTIVE
ARTICLE, WILGUS, ARREST WITHOUT A WARRANT, 22 MICH. L. REV. 541, 673,
798 (1924). 

FN7  THE OXFORD DICTIONARY OF QUOTATIONS (2D ED. 1953), 379.  IN
HANSARD, PARLIAMENTARY HISTORY OF ENGLAND (1813), VOL. 15, COLUMN 1307,
UNDER THE PROCEEDINGS IN THE COMMONS ON THE CIDER TAX IN MARCH, 1763,
WE FIND:  "MR. PITT SPOKE AGAINST THIS MEASURE, PARTICULARLY AGAINST
THE DANGEROUS PRECEDENT OF ADMITTING THE OFFICERS OF EXCISE INTO
PRIVATE HOUSES.  EVERY MAN'S HOUSE WAS HIS CASTLE, HE SAID." 

FN8  ALA. CODE, 1940, TIT. 15, SEC. 155; ARIZ. REV. STAT. ANN., 1955,
SEC. 13-1411; DEERING'S CAL. PENAL CODE, SEC. 844; FLA. STAT., 1957,
901.17; IDAHO CODE, 1947, SEC. 19-611; BURNS' ANN. IND. STAT., 1956,
REPLACEMENT VOL., SEC. 9-1009; IOWA CODE ANN., 1949, SEC. 755.9; KAN.
GEN. STAT., 1949, 62-1819; KY. REV. STAT., 1953, SEC. 70.078; DART'S
LA. CRIM. CODE, 1943, ART. 72; MICH. STAT. ANN., 1954, SEC. 28.880;
MINN. STAT., 1945, SEC. 629.34; MISS.  CODE, 1942, SEC. 2471; MO. REV.
STAT., 1949, SEC. 544.200; MONT. REV. CODES, 1947, 94-6011; NEB. REV.
STAT., 1943, SEC. 29-411; NEV. REV. STAT., 1957, 171.275; CLEVENGER
GILBERT'S N.Y.  CRIM. CODE, 1956, SEC. 178; N.C. GEN. STAT., 1953, SEC.
15-44; PAGE'S OHIO REV. CODE ANN., 1953, SEC. 2935.15; OKLA. STAT.
ANN., TIT. 22, SEC. 194; ORE.  COMP.  LAWS ANN., 1940, SEC.  26-1530;
S.C. CODE, 1952, SEC. 53-198; S.D. CODE, 1939, SEC. 34.1606; TENN. CODE
ANN., 1955, SEC. 40-807; UTAH CODE ANN., 1953, 77-13-12; REMINGTON'S
WASH. REV. STAT., 1932, SEC.  2082; WYO. COMP. STAT., 1945, SEC. 10
309. 

FN9  CODE OF CRIM. PROC., AMERICAN LAW INSTITUTE, OFFICIAL DRAFT
(1930), SEC. 28: 

"RIGHT OF OFFICER TO BREAK INTO BUILDING.  AN OFFICER, IN ORDER TO
MAKE AN ARREST EITHER BY VIRTUE OF A WARRANT, OR WHEN AUTHORIZED TO
MAKE SUCH ARREST FOR A FELONY WITHOUT A WARRANT, AS PROVIDED IN SECTION
21, MAY BREAK OPEN A DOOR OR WINDOW OF ANY BUILDING IN WHICH THE PERSON
TO BE ARRESTED IS OR IS REASONABLY BELIEVED TO BE, IF HE IS REFUSED
ADMITTANCE AFTER HE HAS ANNOUNCED HIS AUTHORITY AND PURPOSE." 

FN10  PROFESSOR WILGUS SUMS UP HIS DISCUSSION OF THE BREAKING OF
DOORS THUS:  "BEFORE DOORS ARE BROKEN, THERE MUST BE A NECESSITY FOR SO
DOING, AND NOTICE OF THE AUTHORITY AND PURPOSE TO MAKE THE ARREST MUST
BE GIVEN AND A DEMAND AND REFUSAL OF ADMISSION MUST BE MADE, UNLESS
THIS IS ALREADY UNDERSTOOD, OR THE PERIL WOULD BE INCREASED."  22 MICH.
L. REV.  798, 802.  (FOOTNOTES OMITTED.)  THE DISSENTING OPINION
HEREIN, IN FOOTNOTE 1, MISTAKENLY REFERS TO THIS PASSAGE AS IF IT WERE
A HOLDING "ENUNCIATED" BY THE COURT OF APPEALS.  IN FACT, THIS PASSAGE
WAS MERELY QUOTED WITHOUT APPROVAL.  THE HOLDING WAS:  "UPON ONE TOPIC
THERE APPEARS TO BE NO DISPUTE IN THE AUTHORITIES.  BEFORE AN OFFICER
CAN BREAK OPEN A DOOR TO A HOME, HE MUST MAKE KNOWN THE CAUSE OF HIS
DEMAND FOR ENTRY.  THERE IS NO CLAIM IN THE CASE AT BAR THAT THE
OFFICERS ADVISED THE SUSPECT OF THE CAUSE OF THEIR DEMAND BEFORE THEY
BROKE DOWN THE DOOR."  ACCARINO V. UNITED STATES, 85 U.S. APP. D.C.
394, 403, 179 F.2D 456, 465. 

FN11  JUDGE HOLTZOFF HEARD THE MOTION TO SUPPRESS OVER TWO MONTHS
BEFORE THE TRIAL.  OUR EXAMINATION OF THE RECORD MADE AT THAT TIME
BRINGS US INTO COMPLETE AGREEMENT WITH JUDGE EDGERTON, WHO, DISSENTING
IN THE COURT OF APPEALS, SAID, "I FIND NO EVIDENCE, AND THE COURT CITES
NO EVIDENCE, THAT SUPPORTS AN INFERENCE THAT MILLER EVEN RECOGNIZED THE
OFFICERS AS THE NARCOTICS SQUAD."  100 U.S. APP. D.C. 302, 311, 244
F.2D 750, 759.  EVEN IF PETITIONER COULD HAVE SEEN THE OFFICERS
SUFFICIENTLY TO MAKE OUT THEIR FACES, THERE IS NO EVIDENCE THAT HE KNEW
THEM PERSONALLY.  THE RECORD AT BEST SUPPORTS AN INFERENCE, NOT THAT
EITHER OFFICER PERSONALLY KNEW MILLER, OR THAT MILLER HAD MET, OR EVEN
HEARD OF, EITHER OFFICER, BUT ONLY THAT THE OFFICERS KNEW OF HIM AS A
REPUTED NARCOTICS VIOLATER.  JUDGE YOUNGDAHL PRESIDED AT THE TRIAL AND
REFUSED TO HEAR A RENEWED MOTION TO SUPPRESS BECAUSE HE CONSIDERED THE
MATTER SETTLED BY JUDGE HOLTZOFF'S RULING.  AGENT WILSON'S TESTIMONY AT
THE TRIAL WAS AGAIN AT VARIANCE WITH HIS TESTIMONY BEFORE JUDGE
HOLTZOFF AS IT HAD BEEN ON THE QUESTION WHETHER THE OFFICERS HAD
COMMUNICATED THEIR PURPOSE TO ARREST.  AT THE TRIAL HE TESTIFIED THAT
MILLER HAD MET HIM ON ONE OCCASION BEFORE THE NIGHT OF THE ARREST. 
APPARENTLY UNWILLING TO RELY ON THIS TESTIMONY, IN THE FACE OF ITS
INCONSISTENCY, THE MAJORITY OF THE COURT OF APPEALS DID NOT ALLUDE TO
IT AS THE BASIS FOR ITS CONCLUSION THAT MILLER RECOGNIZED THE
OFFICERS. 

FN12  COMPLIANCE IS ALSO A SAFEGUARD FOR THE POLICE THEMSELVES WHO
MIGHT BE MISTAKEN FOR PROWLERS AND BE SHOT DOWN BY A FEARFUL
HOUSEHOLDER.  SEE CONCURRING OPINION IN MCDONALD V. UNITED STATES, 335
U.S. 451, 460-461. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON CONCURS, DISSENTING. 

I AGREE THAT A REQUIREMENT OF PRIOR NOTICE OF AUTHORITY AND PURPOSE
SHOULD NOT BE GIVEN A "GRUDGING" APPLICATION.  BUT BY THE SAME TOKEN IT
SHOULD NOT BE REDUCED TO AN ABSURDITY.  A MAJORITY OF THE COURT OF
APPEALS HAS CONCLUDED THAT PETITIONER, AT THE TIME THE POLICE ENTERED
HIS APARTMENT, "ALREADY FULL UNDERSTOOD WHO THE OFFICERS WERE AND THAT
THEY SOUGHT TO ARREST HIM."  100 U.S. APP. D.C. 302, 310, 244 F.2D 750,
758.  THE ENTRY, THEREFORE, WAS HELD VALID UNDER DISTRICT OF COLUMBIA
LAW.  (FN1)  THIS COURT NOW SUPERIMPOSES UPON THE LOCAL RULE OF THE
DISTRICT AN ARTIFICIAL AND UNREALISTIC REQUIREMENT THAT, EVEN UNDER THE
CIRCUMSTANCES FOUND HERE, POLICE MUST MAKE "AN EXPRESS ANNOUNCEMENT" IN
UNMISTAKABLE WORDS THAT THEY ARE THE POLICE AND HAVE COME TO MAKE AN
ARREST. 

THE COURT ATTEMPTS TO JUSTIFY INTERFERENCE IN LOCAL LAW BY WHAT IT
TERMS A "CONCESSION" OF THE GOVERNMENT THAT VALIDITY OF THE ENTRY MUST
BE TESTED BY A FEDERAL STATUTE RELATING TO FORCIBLE ENTRY TO EXECUTE A
SEARCH WARRANT.  (FN2)  BUT THE FACT THAT THE GOVERNMENT SEEKS
CLARIFICATION OF A GENERAL FEDERAL STATUTE, POSSIBLY TO SERVE ITS
PURPOSES IN PROSECUTIONS ELSEWHERE, IS NO REASON FOR US TO OBLIGE,
ESPECIALLY WHEN THE RESULT IS TO SUBVERT EXISTING LOCAL LAW.  IN THE
PROCESS, THE COURT REVERSES THE CONVICTION OF A WHOLESALE NARCOTICS
VIOLATOR WITH A PREVIOUS RECORD IN THE TRAFFIC WHO CARRIES ON HIS
ABOMINABLE TRADE BY USING A JUVENILE AS HIS DOPE PEDDLER AND CO
CONSPIRATOR. 

THE FACTS ON WHICH THE COURT OF APPEALS FOUND THE ENTRY VALID WERE
THESE:  OFFICERS TRAILED SHEPHERD AS HE PROCEEDED BY TAXICAB TO
PURCHASE HEROIN FOR LEWIS, A NARCOTICS AGENT.  SHEPHERD WENT TO THE
APARTMENT OCCUPIED BY HIS SISTER, MRS. BYRD, AND BY PETITIONER.  THE
OFFICERS SAW HIM ENTER THE APARTMENT BUILDING.  AGENT WILSON FOLLOWED
HIM TO THE BASEMENT ENTRANCE AND SAW HIM DISAPPEAR DOWN A LIGHTED HALL
ABOUT "AS LONG AS THE JURY BOX."  OTHER THAN THE ENTRANCE, THERE WERE
ONLY TWO DOORS INTO THE HALL, ONE LEADING INTO PETITIONER'S APARTMENT,
THE OTHER INTO A FURNACE ROOM.  NO ONE LIVED IN THE BASEMENT EXCEPT
PETITIONER AND MRS. BYRD.  WILSON THEN WITHDREW TO A LOCATION ACROSS
THE STREET.  HE SAW A LIGHT GO ON IN THE FURNACE ROOM, REMAIN ON
SHORTLY, AND THEN GO OUT.  SHEPHERD SOON EMERGED, RE-ENTERED THE
TAXICAB AND DROVE AWAY.  THE OFFICERS FOLLOWED, ARRESTED SHEPHERD, AND
SEIZED 100 CAPSULES OF HEROIN FOUND IN THE TAXICAB.    THE OPINION OF
THE COURT OF APPEALS GRAPHICALLY DESCRIBED THE SUBSEQUENT EVENTS: 

"AFTER THE ARREST OF SHEPHERD, THE OFFICERS, HAVING FOUND THE 100
CAPSULES OF HEROIN, IMMEDIATELY WENT BACK TO THE APARTMENT OCCUPIED BY
MRS. BYRD AND MILLER, AND, A FEW MINUTES LATER, KNOCKED ON THE DOOR AND
ANNOUNCED THEIR IDENTITY.  THEREUPON MILLER, KNOWN TO THE OFFICERS AS A
NARCOTICS VIOLATOR, HAVING OPENED HIS DOOR PART WAY, RECOGNIZED THE
OFFICERS OF THE NARCOTICS SQUAD AND ATTEMPTED TO CLOSE THE DOOR.  AS HE
PULLED THE DOOR TO, THE OFFICERS RESISTED HIS EFFORT TO CLOSE IT, A
CHAIN BOLT BROKE, AND THE OFFICERS ARRESTED MILLER AND MRS. BYRD."  100
U.S. APP. D.C., AT 304, 244 F.2D, AT 752. 

THIS SUMMARY IS AMPLY SUPPORTED BY THE EVIDENCE.  WILSON TESTIFIED
THAT PETITIONER PREVIOUSLY MET HIM WHEN HE WAS AN AGENT WITH THE
FEDERAL BUREAU OF NARCOTICS.  HE ALSO KNEW PETITIONER IN CONNECTION
WITH A NARCOTICS CASE.  OFFICER WURMS TESTIFIED THAT HE TOO KNEW
PETITIONER OFFICIALLY.  (FN3)  AS TO THEIR ENTRY INTO THE APARTMENT,
WURMS TESTIFIED: "I KNOCKED ON THE FRONT DOOR  ... SOMEBODY ASKED,
'WHO'S THERE?'  I SAID, 'BLUE' - IN A LOW VOICE, I SAID 'POLICE.'  I
REPEATED IT TWO OR THREE TIMES, IN THAT MANNER.  THE DOOR OPENED. 
THERE WAS A CHAIN ON THE DOOR.  BLUE MILLER SAW ME, AGENT WILSON, AND I
DON'T KNOW WHO ELSE HE SAW BUT HE TRIED TO CLOSE THE DOOR  ...  ." 
WILSON DESCRIBED THE ENTRY THIS WAY:  "THERE WAS A SHORT STRUGGLE THERE
BETWEEN WURMS AND MILLER TO OPEN THE DOOR AND FINALLY THE DOOR WAS
FORCED OPEN AND WE GOT OURSELVES INTO THE APARTMENT."  THE OFFICERS
FOUND THE MARKED CURRENCY AND A CARTON OF ONE THOUSAND UNFILLED GELATIN
CAPSULES.  THREE HUNDRED AND EIGHTY-ONE SUCH CAPSULES FILLED WITH
HEROIN WERE FOUND IN THE FURNACE ROOM ACROSS THE HALL. 

AT A PRETRIAL HEARING PETITIONER MOVED TO SUPPRESS THE MARKED
CURRENCY, ALLEGING THAT THE OFFICERS HAD NEITHER WARRANT NOR PROBABLE
CAUSE FOR ARREST.  THIS MOTION WAS DENIED.  AT TRIAL BEFORE A JURY AND
A DIFFERENT JUDGE THE MOTION WAS RENEWED.  IN DENYING THE MOTION, THE
JUDGE SAID, "I WILL GIVE YOU THE RIGHT TO MAKE ANOTHER MOTION.  YOU
CERTAINLY HAVE A RIGHT AT THE END OF THE TESTIMONY."  PETITIONER NEVER
AVAILED HIMSELF OF THIS OPPORTUNITY. 

ON APPEAL PETITIONER SHIFTED HIS GROUND, EMPHASIZING THAT EVEN IF THE
OFFICERS HAD PROBABLE CAUSE TO ARREST HIM, SUCH AUTHORITY WAS
IMPROPERLY EXERCISED BECAUSE THEY DID NOT FORMALLY ANNOUNCE THEIR
PURPOSE BEFORE ENTRY.  THE COURT OF APPEALS HELD: 

"AGAINST THE BACKGROUND OF THE FACTS AS NOTED AND THE LAW AS
SUMMARIZED, WE FIND THE OFFICERS AT MILLER'S DOOR, KNOWING THAT A
FELONY HAD BEEN COMMITTED AND HAVING PROBABLE CAUSE TO BELIEVE IT WAS
CONTINUING.  THE STATUTE SPELLED OUT THEIR CLEAR DUTY TO ARREST."  100
U.S. APP. D.C. 302, 309, 244 F.2D 750, 757. 

THE COURT AGREED WITH THE TRIAL JUDGE "THAT THE ATTEMPT OF THE
OFFICERS TO ARREST MILLER AT HIS DOORWAY UNDER THE CIRCUMSTANCES OF
THIS CASE WAS NOT UNREASONABLE," AND FOUND THAT THE BREAKING OF THE
DOOR CHAIN "IN THE COURSE OF HIS RESISTANCE WAS IMMATERIAL AND HIS
ARREST, IMMEDIATELY MADE, WAS JUSTIFIED."  100 U.S. APP. D.C., AT 310,
244 F.2D, AT 758.  CONCLUDING THAT MILLER WITHOUT DOUBT WAS AWARE BOTH
OF THE OFFICERS' IDENTITY AND PURPOSE, THE COURT UPHELD THE REFUSAL OF
THE TRIAL COURTT TO SUPPRESS THE EVIDENCE, AND FOUND THE PROOF OF GUILT
"OVERWHELMING AND UNANSWERABLE." 

THE MAJORITY, HOWEVER, BRUSHES ASIDE THESE CONCLUSIONS, EXPLAINING
PETITIONER'S ACTION IN SLAMMING THE DOOR AS "THE EXPECTED REACTION OF
ANY CITIZEN."  THIS IS SOMETHING ENTIRELY FOREIGN TO MY CONCEPT OF THE
RESPECT A LAW-ABIDING CITIZENRY PAYS TO ITS LAW-ENFORCEMENT OFFICERS. 
NOR CAN I ACCEPT THE CONCLUSION OF THE COURT THAT THE CIRCUMSTANCES
FOUND BY THE COURT OF APPEALS FALL "SHORT OF A VIRTUAL CERTAINTY THAT
THE PETITIONER KNEW OF THE OFFICERS' PURPOSE TO ARREST HIM."  HIS
KNOWLEDGE - IN THE ABSENCE OF AN EXPRESS ADMISSION BY HIM - CAN NEVER
BE A "VIRTUAL CERTAINTY."  RATHER THAN ATTEMPTING TO PSYCHOANALYZE
PETITIONER, WE SHOULD MEASURE HIS UNDERSTANDING BY HIS OUTWARD ACTS. 
THE COURT OF APPEALS FOUND THAT THEY INDISPUTABLY ESTABLISHED
PETITIONER'S AWARENESS OF THE POLICE PURPOSE.  WE SHOULD NOT DISTURB
THAT FINDING. 

THE MAJORITY DOES NOT DEAL WITH THE "EXIGENT CIRCUMSTANCES" OF THE
CASE BECAUSE THE GOVERNMENT MAKES NO CLAIM FOR THUS "EXCUSING
COMPLIANCE" WITH THE STATUTE.  IT IS TO BE NOTED, HOWEVER, THAT THE
COURT OF APPEALS EXPRESSLY BASED ITS OPINION ON THE FACT THAT THE
OFFICERS "WERE CONFRONTED BY THE NEED FOR A DECISION ARISING FROM THE
NECESSITOUS CIRCUMSTANCES OF THE SITUATION."  THE POSITION OF THE
GOVERNMENT DOES NOT EXCUSE US FROM EVALUATING THE CIRCUMSTANCES OF THE
WHOLE CASE.  I BELIEVE THAT THE COURT OF APPEALS WAS EMINENTLY CORRECT
IN ITS CONCLUSION THAT "NECESSITOUS CIRCUMSTANCES" HERE WARRANTED THE
OFFICERS IN ENTERING THE APARTMENT.  AS THAT COURT POINTED OUT,
PETITIONER MIGHT HAVE FLED OR HIDDEN HIMSELF OR DESTROYED THE FRUITS OF
HIS CRIME, PARTICULARLY IN VIEW OF HIS BACKGROUND AND THE VISIT OF HIS
BROTHER-IN-LAW SHEPHERD ONLY A FEW MOMENTS BEFORE.  CERTAINLY HE SOON
WOULD HAVE LEARNED OF SHEPHERD'S ARREST.  MOREOVER, HIS ATTEMPT TO
FORCIBLY PREVENT THE ENTRY OF THE OFFICERS INTO HIS APARTMENT REQUIRED
THEIR IMMEDIATE ACTION.  ANY DELAY MIGHT WELL HAVE PRECLUDED THE
ARREST.  DESTRUCTION OF THE MARKED MONEY MIGHT HAVE PREVENTED THE
ESTABLISHMENT OF PETITIONER'S GUILT.  AS THE GOVERNMENT POINTS OUT,
"SPLIT-SECOND ACTION WAS NECESSARY." 

I WOULD AFFIRM THE JUDGMENT ON THE BASIS OF THE DISTRICT OF COLUMBIA
RULE IN ACCARINO, SUPRA, WHICH I BELIEVE THIS COURT SHOULD HONOR. 
(FN4) 

FN1  THE RULE IN THE DISTRICT WITH WHICH THE COURT OF APPEALS FOUND
COMPLIANCE WAS ENUNCIATED IN ACCARINO V. UNITED STATES, 85 U.S. APP.
D.C. 394, 179 F.2D 456 (OPINION BY JUDGE PRETTYMAN).  REHEARING EN BANC
IN THE INSTANT CASE WAS DENIED WITHOUT DISSENT, WITH THE AUTHOR OF
ACCARINO PARTICIPATING. 

IN DISCUSSING THE LOCAL RULE, JUDGE PRETTYMAN IN ACCARINO QUOTED WITH
APPROVAL FROM WILGUS, ARREST WITHOUT A WARRANT, 22 MICH. L. REV. 798,
802:  "BEFORE DOORS ARE BROKEN, THERE MUST BE A NECESSITY FOR SO DOING,
AND NOTICE OF THE AUTHORITY AND PURPOSE TO MAKE THE ARREST MUST BE
GIVEN AND A DEMAND AND REFUSAL OF ADMISSION MUST BE MADE, UNLESS THIS
IS ALREADY UNDERSTOOD, OR THE PERIL WOULD BE INCREASED."  85 U.S. APP.
D.C., AT 401, 179 F.2D, AT 463.  THE COURT OF APPEALS IN THE INSTANT
CASE RECOGNIZED THIS LANGUAGE AS THE EMBODIMENT OF THE LOCAL RULE, 100
U.S. APP. D.C., AT 309, 244 F.2D, AT 757, AND IN FINDING THAT
PETITIONER "ALREADY FULLY UNDERSTOOD WHO THE OFFICERS WERE AND THAT
THEY SOUGHT TO ARREST HIM," 100 U.S. APP. D.C., AT 310, 244 F.2D, AT
758, APPLIED THAT RULE IN AFFIRMING THE CONVICTION. 

THIS COURT NOW CONCLUDES THAT THE RULE "JUDICIALLY DEVELOPED" IN THE
DISTRICT IS "SUBSTANTIALLY IDENTICAL" TO 18 U.S.C. SEC. 3109, WHICH
CONCERNS ENTRY TO EXECUTE A SEARCH WARRANT.  IT IS IMPORTANT TO NOTE,
HOWEVER, THAT CERTAIN LANGUAGE, SET OUT IN ITALICS ABOVE, IS PECULIAR
TO THE LOCAL "JUDICIALLY DEVELOPED" RULE.  THE LATTER IS NOT RESPECTED
IN THE INTERPRETATION OF SEC. 3109 BY THE COURT TODAY. 

FN2  WHILE THE GOVERNMENT IN ITS BRIEF AGREES "THAT THE VALIDITY OF
THE ENTRY SHOULD BE TESTED UNDER THE STANDARD OF 18 U.S.C. 3109," IT
JOINS THAT POSITION WITH THE CONTENTION THAT "UNDER THESE
CIRCUMSTANCES, THE POLICE ENTRY COMPLIED WITH THE TEACHING ACCEPTED IN
ACCARINO V. UNITED STATES (85 U.S. APP. D.C. 394, 401), 179 F.2D 456,
463."  SEE NOTE 1, SUPRA. 

FN3  Q. "HOW DID YOU KNOW MILLER?"  A. "PREVIOUS KNOWLEDGE, AND I
HAVE SEEN HIM BEFORE."  FURTHERMORE, PETITIONER IN HIS AFFIDAVIT
SUPPORTING HIS MOTION TO SUPPRESS SWORE "THAT OFFICERS WILSON, PAPPAS
AND FOUR OTHERS DID BREAK THE CHAIN OFF THE DOOR," AND FURTHER THAT
WILSON PHYSICALLY ASSAULTED HIM IN HIS APARTMENT. 

FN4  SEE FISHER V. UNITED STATES, 328 U.S. 463, 476 (1946), WHERE THE
COURT SAID, "OUR POLICY IS NOT TO INTERFERE WITH THE LOCAL RULES OF LAW
WHICH DISTRICT OF COLUMBIA COURTS FASHION, SAVE IN EXCEPTIONAL
SITUATIONS WHERE EGREGIOUS ERROR HAS BEEN COMMITTED." 

IN GRIFFIN V. UNITED STATES, 336 U.S. 704 (1949), THE COURT
DETERMINED THAT THERE WAS NO "FEDERAL RULE" ON THE ISSUE IN THE CASE. 
BUT IT ADDED THAT EVEN IF THERE WERE SUCH A RULE, IT WOULD NOT
NECESSARILY CONTROL IN THE DISTRICT OF COLUMBIA:  "THIS COURT, IN ITS
DECISIONS, AND CONGRESS, IN ITS ENACTMENT OF STATUTES, HAVE OFTEN
RECOGNIZED THE APPROPRIATENESS OF ONE RULE FOR THE DISTRICT AND ANOTHER
FOR OTHER JURISDICTIONS SO FAR AS THEY ARE SUBJECT TO FEDERAL LAW." 
ID., AT 712.  THE COURT NOTED THAT IT WAS THE "SPECIAL FUNCTION" OF THE
COURT OF APPEALS TO DECIDE QUESTIONS OF LOCAL LAW.  "ONLY IN
EXCEPTIONAL CASES WILL THIS COURT REVIEW A DETERMINATION OF SUCH A
QUESTION BY THE COURT OF APPEALS FOR THE DISTRICT."  ID., AT 718. 
..END :





CITY OF TACOMA V. TAXPAYERS OF TACOMA 357 U.S. 320 


NO. 509.  ARGUED APRIL 30, 1958 - DECIDED JUNE 23, 1958 - 49 WASH. 2D
781, 307 P.2D 567, REVERSED AND REMANDED. 


UNDER THE FEDERAL POWER ACT, THE CITY OF TACOMA, A MUNICIPALITY OF THE
STATE OF WASHINGTON AUTHORIZED TO CONSTRUCT AND OPERATE ELECTRIC POWER
PLANTS, APPLIED FOR A LICENSE TO CONSTRUCT AND OPERATE A HYDRO-ELECTRIC
PROJECT ON NAVIGABLE WATERS.  ITS APPLICATION WAS OPPOSED BY THE STATE
ON THE GROUND, INTER ALIA, THAT ONE OF THE RESERVOIRS WHICH WOULD BE
CREATED BY THE PROPOSED DAMS WOULD INUNDATE A FISH HATCHERY OWNED BY
THE STATE; BUT THE COMMISSION ISSUED THE LICENSE.  UNDER SEC. 313 OF
THE ACT, THE STATE PETITIONED THE COURT OF APPEALS FOR REVIEW AND
CHALLENGED THE COMMISSION'S AUTHORITY TO ISSUE THE LICENSE, ON THE
GROUND, INTER ALIA, THAT THE CITY COULD NOT ACT IN OPPOSITION TO THE
POLICY OF THE STATE.  HOLDING THAT STATE LAWS CANNOT PREVENT THE
COMMISSION FROM ISSUING A LICENSE OR BAR THE LICENSEE FROM ACTING
THEREUNDER, THE COURT OF APPEALS AFFIRMED THE COMMISSION'S ORDER.  THIS
COURT DENIED CERTIORARI.  IN A PROCEEDING BY THE CITY FOR A JUDGMENT
DECLARING VALID A BOND ISSUE TO FINANCE THE PROJECT, A STATE COURT
ENJOINED THE CITY FROM PROCEEDING WITH THE PROJECT.   THE SUPREME COURT
OF WASHINGTON AFFIRMED, ON THE GROUND THAT THE CITY WAS NOT AUTHORIZED
BY STATE LAW TO CONDEMN STATE-OWNED PROPERTY.  THIS COURT GRANTED
CERTIORARI.  HELD:  THE JUDGMENT IS REVERSED.  PP. 322-341. 

1.  THE FACT THAT THE PROJECT CANNOT BE COMPLETED BEFORE EXPIRATION
OF THE LICENSE DOES NOT REQUIRE DISMISSAL OF THE WRIT ON THE GROUND
THAT THE CASE IS MOOT, BECAUSE SEC. 13 OF THE ACT EXPRESSLY AUTHORIZES
THE COMMISSION TO EXTEND THE TIME FOR COMPLETING THE PROJECT, AND AN
APPLICATION FOR EXTENSION IS PENDING.  P. 333. 

2.  UNDER SEC. 313(B) OF THE ACT, THE JUDGMENT OF THE COURT OF
APPEALS BECAME FINAL UPON THIS COURT'S DENIAL OF CERTIORARI; IT IS
BINDING UPON THE STATE, ITS OFFICERS AND ITS CITIZENS, INCLUDING THE
TAXPAYERS OF TACOMA; AND THE OBJECTIONS AND CLAIMS TO THE CONTRARY
ASSERTED BY THE STATE, ITS OFFICERS AND THE TAXPAYERS OF TACOMA IN THE
BOND-VALIDATION SUIT WERE IMPERMISSIBLE COLLATERAL ATTACKS UPON, AND DE
NOVO LITIGATION BETWEEN THE SAME PARTIES OF ISSUES DETERMINED BY, THE
FINAL JUDGMENT OF THE COURT OF APPEALS.  PP. 334-341. 

(A)  UNDER THE COMMERCE CLAUSE, THE FEDERAL GOVERNMENT HAS DOMINION,
TO THE EXCLUSION OF THE STATES, OVER NAVIGABLE WATERS OF THE UNITED
STATES.  P. 334. 

(B)  UNDER SEC. 313(B) OF THE FEDERAL POWER ACT, THE COURT OF APPEALS
HAD "EXCLUSIVE JURISDICTION" TO REVIEW THE COMMISSION'S ORDER; ALL
OBJECTIONS TO THE ORDER, TO THE LICENSES TO BE ISSUED THEREUNDER, AND
TO THE LEGAL COMPETENCE OF THE LICENSEE TO EXECUTE ITS TERMS, MUST BE
MADE IN THE COURT OF APPEALS OR NOT AT ALL; AND THE JUDGMENT OF THE
COURT OF APPEALS IS "FINAL," SUBJECT TO REVIEW BY THIS COURT.  PP. 335
337. 

(C)  UPON REVIEW OF THE COMMISSION'S ORDER, THE COURT OF APPEALS
OVERRULED THE STATE'S CONTENTION THAT THE CITY, AS A CREATURE OF THE
STATE, HAD NO RIGHT TO TAKE OR DESTROY PROPERTY OF THE STATE.  PP. 337
339. 

(D)  EVEN IF IT BE THOUGHT THAT THIS ISSUE WAS NOT RAISED IN THE
COURT OF APPEALS, THAT WAS THE ONLY PLACE WHERE IT COULD BE RAISED,
BECAUSE THE COURT OF APPEALS HAD "EXCLUSIVE JURISDICTION" AND CONGRESS
HAS DECLARED THAT ITS JUDGMENT "SHALL BE FINAL," SUBJECT TO REVIEW BY
THIS COURT.  P. 339. 

(E)  THE DECISION OF THE COURT OF APPEALS LEFT OPEN POSSIBLE
QUESTIONS WITH REFERENCE TO "INDEBTEDNESS LIMITATIONS" IN THE CITY'S
CHARTER AND OTHER "QUESTIONS OF THIS NATURE"; BUT IT DID NOT LEAVE OPEN
THE RIGHT OF THE CITY TO RECEIVE AND PERFORM, AS LICENSEE OF THE
FEDERAL GOVERNMENT UNDER THE FEDERAL POWER ACT, THE FEDERAL RIGHTS
DETERMINED BY THE COMMISSION AND DELEGATED TO THE CITY AS SPECIFIED IN
THE LICENSE.  PP. 339-340. 

(F)  THE FINAL JUDGMENT OF THE COURT OF APPEALS WAS EFFECTIVE, NOT
ONLY AGAINST THE STATE, BUT ALSO AGAINST ITS CITIZENS, INCLUDING THE
TAXPAYERS OF TACOMA, FOR THEY, IN THEIR COMMON PUBLIC RIGHTS AS
CITIZENS, WERE REPRESENTED BY THE STATE IN THOSE PROCEEDINGS AND, LIKE
IT, WERE BOUND BY THE JUDGMENT.  PP. 340-341. 

CITY OF TACOMA V. TAXPAYERS OF TACOMA ET AL. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THIS IS THE LATEST EPISODE IN LITIGATION BEGINNING IN 1948 WHICH HAS
BEEN WAGED IN FIVE TRIBUNALS AND HAS PRODUCED MORE THAN 125 PRINTED
PAGES OF ADMINISTRATIVE AND JUDICIAL OPINIONS.  IT CONCERNS THE PLAN OF
THE CITY OF TACOMA, A MUNICIPAL CORPORATION IN THE STATE OF WASHINGTON,
TO CONSTRUCT A POWER PROJECT ON THE COWLITZ RIVER, A NAVIGABLE WATER OF
THE UNITED STATES, IN ACCORDANCE WITH A LICENSE ISSUED BY THE FEDERAL
POWER COMMISSION UNDER THE FEDERAL POWER ACT.  (FN1)  THE QUESTION
PRESENTED FOR DECISION HERE IS WHETHER UNDER THE FACTS OF THIS CASE THE
CITY OF TACOMA HAS ACQUIRED FEDERAL EMINENT DOMAIN POWER AND CAPACITY
TO TAKE, UPON THE PAYMENT OF JUST COMPENSATION, A FISH HATCHERY OWNED
AND OPERATED BY THE STATE OF WASHINGTON, BY VIRTUE OF THE LICENSE
ISSUED TO THE CITY UNDER THE FEDERAL POWER ACT AND MORE PARTICULARLY
SEC. 21 THEREOF.  (FN2)  THE PROJECT CANNOT BE BUILT WITHOUT TAKING THE
HATCHERY BECAUSE IT NECESSARILY MUST BE INUNDATED BY A RESERVOIR THAT
WILL BE CREATED BY ONE OF THE PROJECT'S DAMS. 

THE QUESTION HAS ARISEN UNDER THE FOLLOWING CIRCUMSTANCES AND
PROCEEDINGS.  HAVING EARLIER FILED ITS DECLARATION OF INTENTION TO
CONSTRUCT THE PROJECT, (FN3) THE CITY OF TACOMA, A "MUNICIPALITY" (FN4)
IN THE STATE OF WASHINGTON, ON DECEMBER 28, 1948, FILED WITH THE
COMMISSION, UNDER SEC. 4(E) OF THE FEDERAL POWER ACT, (FN5) AN
APPLICATION (FN6) FOR A FEDERAL LICENSE TO CONSTRUCT A POWER PROJECT,
INCLUDING TWO DAMS (KNOWN AS MOSSYROCK AND MAYFIELD) AND APPURTENANT
FACILITIES, ON THE COWLITZ RIVER.  (FN7) 

THE MOSSYROCK DEVELOPMENT WAS PROPOSED TO BE LOCATED AT MILE 65 AND
TO CONSIST OF A CONCRETE DAM ACROSS THE COWLITZ RISING 510 FEET ABOVE
BEDROCK (CREATING A RESERVOIR COVERING ABOUT 10,000 ACRES EXTENDING 21
MILES UPSTREAM) AND AN INTEGRAL POWERHOUSE CONTAINING, INITIALLY, THREE
GENERATORS EACH OF 75,000-KILOWATT CAPACITY AND PROVISIONS FOR A FOURTH
GENERATOR OF LIKE CAPACITY.  THE MAYFIELD DEVELOPMENT WAS PROPOSED TO
BE LOCATED AT MILE 52 AND TO CONSIST OF A CONCRETE DAM ACROSS THE
COWLITZ RISING 240 FEET ABOVE BEDROCK (CREATING A RESERVOIR COVERING
ABOUT 2,200 ACRES EXTENDING 13.5 MILES UPSTREAM TO THE TAILWATERS OF
THE MOSSYROCK DAM, WHICH WOULD INUNDATE THE STATE'S FISH HATCHERY) AND
AN INTEGRAL POWERHOUSE CONTAINING, INITIALLY, THREE GENERATORS EACH OF
40,000-KILOWATT CAPACITY AND PROVISIONS FOR A FOURTH GENERATOR OF LIKE
CAPACITY.  THE PROJECT - ESTIMATED TO COST $146,000,000 INCLUDING
$9,465,000 FOR DEVICES TO ENABLE ANADROMOUS FISH TO PASS TO SPAWNING
GROUNDS UPSTREAM AND THEIR YOUNG TO PASS TO THE SEA, AND FOR NEW FISH
HATCHERIES - WOULD THUS HAVE INITIAL CAPACITY TO PRODUCE 345,000
KILOWATTS OR 474,000 HORSEPOWER, AND EVENTUALLY 460,000 KILOWATTS OR
632,000 HORSEPOWER, OF ELECTRICAL ENERGY. 

THE COMMISSION ORDERED A PUBLIC HEARING TO DETERMINE WHETHER THE
LICENSE SHOULD ISSUE, AND GAVE NOTICE OF THE HEARING TO THE GOVERNOR OF
THE STATE OF WASHINGTON.  IN RESPONSE, THE ATTORNEY GENERAL OF THE
STATE FILED AN INTERVENING PETITION, IN THE NAMES OF THE STATE'S
DIRECTORS OF FISHERIES AND OF GAME, ALLEGING IN SUBSTANCE THAT THE
STATE'S DEPARTMENTS OF FISHERIES AND OF GAME ARE SUBDIVISIONS OF THE
SOVEREIGN STATE, AND THAT THE RESPECTIVE DIRECTORS ARE CHARGED WITH THE
DUTY OF ENFORCING ITS LAWS CONCERNING THE CONSERVATION OF FISH AND
GAME; THAT THE DAMS AND FISH-HANDLING FACILITIES PROPOSED BY THE CITY
WOULD DESTROY FISHERY RESOURCES OF THE STATE; THAT CONSTRUCTION OF
PROPOSED DAMS WOULD VIOLATE WASH. REV. CODE 90.28.060, REQUIRING THE
STATE'S PERMISSION TO CONSTRUCT ANY DAM FOR THE STORAGE OF 10 ACRE-FEET
OR MORE OF WATER, AND WASH. REV. CODE 75.20.010, PROHIBITING THE
CONSTRUCTION OF ANY DAM HIGHER THAN 25 FEET ACROSS ANY RIVER TRIBUTARY
TO THE COLUMBIA, DOWNSTREAM FROM THE MCNARY DAM, WITHIN THE MIGRATORY
RANGE OF ANADROMOUS FISH; AND "THAT THE RESERVOIRS WHICH WOULD BE
CREATED BY THE PROPOSED DAMS WOULD INUNDATE A VALUABLE AND
IRREPLACEABLE FISH HATCHERY OWNED BY THE STATE OF WASHINGTON, AS WELL
AS  ...  PRODUCTIVE SPAWNING AREAS."  THE CITY'S ANSWER ADMITTED THAT
THE STATE'S FISH HATCHERY WOULD BE INUNDATED BY THE MAYFIELD
RESERVOIR.  THE STATE'S ATTORNEY GENERAL ALSO APPOINTED A SPECIAL
ASSISTANT ATTORNEY GENERAL TO REPRESENT ALL PERSONS OF THE STATE WHOSE
VIEWS WERE IN CONFLICT WITH THE STATE'S OFFICIAL POSITION. 

UPON THE ISSUES THUS FRAMED A HEARING, CONSUMING 24 DAYS, WAS
CONDUCTED BY A COMMISSION EXAMINER, THROUGHOUT WHICH THE ATTORNEY
GENERAL OF THE STATE, BY HIS DESIGNATED ASSISTANT, ACTIVELY
PARTICIPATED IN OPPOSITION TO THE APPLICATION, AND THE SPECIAL
ASSISTANT ATTORNEY GENERAL, APPOINTED FOR THE PURPOSE STATED, ALSO
PARTICIPATED IN THE PROCEEDINGS BEFORE THE COMMISSION.  THEREAFTER THE
COMMISSION ON NOVEMBER 28, 1951, RENDERED ITS OPINION, (FN8) FINDINGS,
(FN9) AND ORDER GRANTING THE LICENSE.  (FN10)  RE CITY OF TACOMA, 92
P.U.R.  (N.S.)  79.  THE STATE PETITIONED FOR A REHEARING WHICH WAS
DENIED. 

PURSUANT TO SEC. 313 OF THE ACT, 16 U.S.C. SEC. 825L, THE STATE, IN
ITS PROPER NAME AND ALSO ON BEHALF OF ITS DIRECTORS OF FISHERIES AND OF
GAME, PETITIONED FOR REVIEW OF THE COMMISSION'S ORDER BY THE COURT OF
APPEALS FOR THE NINTH CIRCUIT.  THE CITY INTERVENED.  THE STATE THERE
CHALLENGED THE COMMISSION'S AUTHORITY TO ISSUE THE LICENSE PRINCIPALLY
UPON THE GROUNDS THAT THE CITY HAD NOT COMPLIED WITH APPLICABLE STATE
LAWS NOR OBTAINED STATE PERMITS AND APPROVALS REQUIRED BY STATE
STATUTES; (FN11) THAT "TACOMA, AS A CREATURE OF THE STATE OF
WASHINGTON, CANNOT ACT IN OPPOSITION TO THE POLICY OF THE STATE OR IN
DEROGATION OF ITS LAWS"; AND THAT THE EVIDENCE WAS NOT SUFFICIENT TO
SUSTAIN THE COMMISSION'S FINDINGS AND ORDER.  THE COURT OF APPEALS,
HOLDING THAT "STATE LAWS CANNOT PREVENT THE FEDERAL POWER COMMISSION
FROM ISSUING A LICENSE OR BAR THE LICENSEE FROM ACTING UNDER THE
LICENSE TO BUILD A DAM ON A NAVIGABLE STREAM SINCE THE STREAM IS UNDER
THE DOMINION OF THE UNITED STATES" AND THAT THERE WAS AMPLE EVIDENCE TO
SUSTAIN THE COMMISSION'S FINDINGS AND ITS ORDER, AFFIRMED.  WASHINGTON
DEPARTMENT OF GAME V. FEDERAL POWER COMM'N, 207 F.2D 391, 396.  THE
STATE THEN PETITIONED THIS COURT FOR A WRIT OF CERTIORARI WHICH WAS
DENIED.  347 U.S. 936. 

WHILE THE PETITION FOR REVIEW WAS PENDING IN THE NINTH CIRCUIT, THE
CITY, ON FEBRUARY 3, 1952, COMMENCED AN ACTION IN THE SUPERIOR COURT OF
PIERCE COUNTY, WASHINGTON, AGAINST THE TAXPAYERS OF TACOMA AND THE
STATE'S DIRECTORS OF FISHERIES AND OF GAME, SEEKING A JUDGMENT
DECLARING VALID A LARGE ISSUE OF REVENUE BONDS, AUTHORIZED BY THE
CITY'S ORDINANCE (NO. 14386) OF JANUARY 9, 1952, TO BE ISSUED AND SOLD
BY TACOMA TO FINANCE THE CONSTRUCTION OF THE COWLITZ PROJECT - A
PROCEEDING SPECIFICALLY AUTHORIZED BY WASH. REV. CODE 7.25.010 THROGH
7.25.040.  AS REQUIRED BY THOSE STATUTES THE COURT NAMED REPRESENTATIVE
TAXPAYERS OF TACOMA AS CLASS DEFENDANTS AND ALSO APPOINTED THEIR
COUNSEL WHO DEMURRED TO THE CITY'S COMPLAINT.  THE STATE'S DIRECTORS OF
FISHERIES AND OF GAME, ACTING THROUGH AN ASSISTANT ATTORNEY GENERAL OF
THE STATE, FILED AN ANSWER AND ALSO A CROSS-COMPLAINT (REASSERTING
SUBSTANTIALLY THE SAME OBJECTIONS THAT THEY AND THE STATE HAD MADE
BEFORE THE COMMISSION, AND THAT HAD BEEN MADE IN, AND REJECTED BY, THE
COURT OF APPEALS ON THEIR PETITION FOR REVIEW) TO WHICH THE CITY
DEMURRED.  THE JUDGE OF THE SUPERIOR COURT SUSTAINED THE TAXPAYERS'
DEMURRER AND DISMISSED THE SUIT.  (FN12)  TACOMA APPEALED TO THE
SUPREME COURT OF WASHINGTON.  THAT COURT, THREE JUSTICES DISSENTING,
REVERSED THE JUDGMENT AND REMANDED THE CAUSE WITH INSTRUCTIONS TO
OVERRULE THE TAXPAYERS' DEMURRER AND TO PROCEED FURTHER CONSISTENTLY
WITH THE COURT'S OPINION.  CITY OF TACOMA V. TAXPAYERS OF TACOMA, 43
WASH. 2D 468, 262 P.2D 214.  (FN13) 

FOLLOWING THAT OPINION THE CITY, ON JUNE 21, 1955, ACCEPTED BIDS FOR
A BLOCK OF ITS REVENUE BONDS TOTALING $15,000,000 AND ON THE NEXT DAY
IT AWARDED CONTRACTS FOR CONSTRUCTION OF THE MAYFIELD DAM AGGREGATING
$16,120,870.  TWO DAYS LATER, JUNE 24, 1955, THE DIRECTORS "ACTING FOR
AND ON BEHALF OF THE STATE" MOVED IN THE SUPERIOR COURT FOR, AND
OBTAINED, EX PARTE, AN ORDER ENJOINING THE CITY, PENDING DETERMINATION
OF THE SUIT, FROM PROCEEDING TO CONSTRUCT THE COWLITZ PROJECT OR TO
SELL ANY OF ITS REVENUE BONDS.  THAT ORDER WAS MODIFIED ON JUNE 30,
1955, TO PERMIT SUCH CONSTRUCTION WORK AS WOULD NOT IN ANY MANNER
INTERFERE WITH THE BED OR WATERS OF THE COWLITZ RIVER.  PROMPTLY
THEREAFTER THE CITY BEGAN CONSTRUCTION OF THE PROJECT, WITHIN THE
LIMITS OF THE INJUNCTION, AND HAD EXPENDED ABOUT $7,000,000 THEREON TO
THE TIME THE WORK WAS COMPLETELY ENJOINED AS LATER STATED. 

ON JULY 27, 1955, TACOMA AMENDED ITS COMPLAINT MERELY TO ASSERT THE
INTERVENING FACTS THAT THE COMMISSION, UPON APPLICATION OF THE CITY
WHICH WAS OPPOSED BY THE STATE, HAD, ON THE BASIS OF DELAYS ENTAILED BY
THIS LITIGATION, ENTERED AN ORDER ON FEBRUARY 24, 1954, AMENDING
ARTICLES 28 AND 33 OF THE CITY'S LICENSE BY EXTENDING THE TIME FOR
COMMENCING AND FOR COMPLETING THE PROJECT TO DECEMBER 31, 1955, AND
DECEMBER 31, 1958, RESPECTIVELY, AND THAT THE CITY HAD AMENDED ITS
PERTINENT ORDINANCE (NO. 14386) ACCORDINGLY AND IN OTHER MINOR
RESPECTS.  ON AUGUST 8, 1955, ON MOTION MADE BY THE STATE'S ATTORNEY
GENERAL (IN THE NAMES OF THE DIRECTORS OF FISHERIES AND OF GAME), THE
STATE, "IN ITS SOVEREIGN CAPACITY," WAS FORMALLY MADE A DEFENDANT IN
THE ACTION.  THE STATE AND THOSE DIRECTORS ANSWERED, AND ALSO FILED A
CROSS-COMPLAINT AGAIN REVIVING THE OBJECTIONS PREVIOUSLY MADE BY THE
DIRECTORS IN THEIR EARLIER CROSS-COMPLAINT AND ALLEGING FURTHER THAT
THE PROJECT WOULD INTERFERE WITH NAVIGATION OF THE COWLITZ RIVER IN
VIOLATION OF WASH. REV. CODE 80.40.010.  UPON PRETRIAL CONFERENCE THE
SUPERIOR COURT FOUND THAT THE NAVIGATION ISSUE WAS THE ONLY ONE OPEN
AND ORDERED THAT THE EVIDENCE AT THE TRIAL BE LIMITED TO THAT ISSUE. 
ON JANUARY 11, 1956, THE CASE WAS TRIED AND THE TESTIMONY TAKEN WAS
LIMITED SOLELY TO THE NAVIGATION ISSUE.  ON MARCH 6, 1956, THE COURT,
HOLDING THAT THE STATE'S STATUTES PROSCRIBING THE CONSTRUCTION OF DAMS
(NOTE 11) ARE "INAPPLICABLE," BUT THAT THE CITY "IS ACTING ILLEGALLY
AND IN EXCESS OF ITS AUTHORITY IN THE CONSTRUCTION OF THE  ... PROJECT
AS PRESENTLY PROPOSED FOR THE REASON THAT SAID PROJECT WOULD
NECESSARILY IMPEDE, OBSTRUCT OR INTERFERE WITH PUBLIC NAVIGATION
CONTRARY TO THE PROVISO OF R.C.W. 80.40.010 ET SEQ.," ENTERED JUDGMENT
IN FAVOR OF THE TAXPAYERS AND THE STATE, AND ENJOINED THE CITY FROM
PROCEEDING TO CONSTRUCT THE PROJECT. 

TACOMA APPEALED, AND THE TAXPAYERS, THE STATE AND ITS DIRECTORS CROSS
APPEALED, TO THE SUPREME COURT OF WASHINGTON, ON FEBRUARY 7, 1957, THAT
COURT, (FN14) THREE JUSTICES DISSENTING, AFFIRMED.  CITY OF TACOMA V.
TAXPAYERS OF TACOMA, 49 WASH. 2D 781, 307 P.2D 567.  IT AGREED THAT THE
WASHINGTON STATUTES PROSCRIBING THE CONSTRUCTION OF DAMS (NOTE 11) WERE
"INAPPLICABLE  ... INSOFAR AS THE SAME CONFLICT WITH THE PROVISIONS OF
THE FEDERAL POWER ACT OR THE TERMS AND CONDITIONS OF THE CITY'S LICENSE
FOR SAID PROJECT, OR INSOFAR AS THEY WOULD ENABLE STATE OFFICIALS TO
EXERCISE A VETO OVER SAID PROJECT" (49 WASH. 2D, AT 801, 307 P.2D, AT
577), BUT IT DISAPPROVED THE ACTION OF THE TRIAL COURT IN SUSTAINING
THE STATE'S OBJECTION THAT THE PROJECT WOULD INTERFERE WITH NAVIGATION
IN VIOLATION OF WASH. REV. CODE 80.40.010.  HOWEVER, UPON THE DECLARED
PREMISE THAT THOUGH THE TRIAL COURT'S JUDGMENT WAS BASED UPON AN
ERRONEOUS GROUND IT WOULD SUSTAIN IT IF CORRECT ON ANY GROUND WITHIN
THE PLEADINGS AND ESTABLISHED BY PROOF, IT HELD THAT, THOUGH THE STATE
LEGISLATURE HAS GIVEN THE CITY THE RIGHT TO CONSTRUCT AND OPERATE
FACILITIES FOR THE PRODUCTION AND DISTRIBUTION OF ELECTRIC POWER AND A
GENERAL POWER OF CONDEMNATION FOR THOSE PURPOSES, "THE LEGISLATURE HAS
NOT EXPRESSLY AUTHORIZED A MUNICIPAL CORPORATION TO CONDEMN STATE-OWNED
LAND PREVIOUSLY DEDICATED TO A PUBLIC USE AND THAT THE CITY OF TACOMA
HAS NOT BEEN ENDOWED WITH STATE STATUTORY CAPACITY TO CONDEMN THE
STATE'S FISH HATCHERY"; THAT "THE CITY OF TACOMA MAY NOT RECEIVE THE
POWER AND CAPACITY TO CONDEMN THE STATE'S FISH HATCHERY PREVIOUSLY
DEDICATED TO A PUBLIC USE, FROM THE LICENSE ISSUED TO IT BY THE FEDERAL
POWER COMMISSION IN THE ABSENCE OF SUCH POWER AND CAPACITY UNDER STATE
STATUTES"; AND THAT THE CITY'S "INABILITY SO TO ACT CAN BE REMEDIED
ONLY BY STATE LEGISLATION THAT EXPANDS ITS CAPACITY."  49 WASH. 2D, AT
798, 799, 307 P.2D, AT 576, 577.  THIS, IT SAID, "IS NOT A QUESTION OF
THE RIGHT OF THE FEDERAL GOVERNMENT TO CONTROL ALL PHASES OF ACTIVITY
ON NAVIGABLE STREAMS, NOR A QUESTION OF ITS POWER, UNDER THE FEDERAL
POWER ACT, TO DELEGATE THAT RIGHT.  IT ONLY QUESTIONS THE CAPACITY OF A
MUNICIPAL CORPORATION OF THIS STATE TO ACT UNDER SUCH LICENSE WHEN ITS
EXERCISE REQUIRES THE CONDEMNATION OF STATE-OWNED PROPERTY DEDICATED TO
A PUBLIC USE."  49 WASH. 2D, AT 798, 307 P.2D, AT 576.  WE GRANTED
CERTIORARI.  355 U.S. 888.    AT THE OUTSET RESPONDENTS ASK DISMISSAL
OF OUR WRIT ON THE GROUND THAT THE CASE IS MOOT.  THEY ARGUE THAT IT IS
EVIDENT THE COWLITZ PROJECT CANNOT BE COMPLETED BY DECEMBER 31, 1958,
WHICH IS THE DATE NOW STATED IN THE LICENSE FOR ITS COMPLETION.  THERE
IS NO MERIT IN THIS CONTENTION BECAUSE SEC. 13 OF THE FEDERAL POWER
ACT, 41 STAT. 1071, 16 U.S.C. SEC. 806, EXPRESSLY PROVIDES THAT "THE
PERIOD FOR THE COMPLETION OF CONSTRUCTION CARRIED ON IN GOOD FAITH AND
WITH REASONABLE DILIGENCE MAY BE EXTENDED BY THE COMMISSION WHEN NOT
INCOMPATIBLE WITH THE PUBLIC INTERESTS," AND AN APPLICATION BY THE CITY
IS NOW PENDING BEFORE THE COMMISSION FOR AN EXTENSION OF COMPLETION
TIME BASED UPON DELAYS ENTAILED BY THESE PROCEEDINGS.    WE COME NOW TO
THE CORE OF THE CONTROVERSY BETWEEN THE PARTIES, NAMELY, WHETHER THE
LICENSE ISSUED BY THE COMMISSION UNDER THE FEDERAL POWER ACT TO THE
CITY OF TACOMA GAVE IT CAPACITY TO ACT UNDER THAT FEDERAL LICENSE IN
CONSTRUCTING THE PROJECT AND DELEGATED TO IT FEDERAL EMINENT DOMAIN
POWER TO TAKE, UPON THE PAYMENT OF JUST COMPENSATION, THE STATE'S FISH
HATCHERY - ESSENTIAL TO THE CONSTRUCTION OF THE PROJECT - IN THE
ABSENCE OF STATE LEGISLATION SPECIFICALLY CONFERRING SUCH AUTHORITY. 

AT THE THRESHOLD OF THIS CONTROVERSY PETITIONER, THE CITY, ASSERTS
THAT, UNDER THE EXPRESS TERMS OF SEC. 313(B) OF THE ACT, 16 U.S.C. SEC.
825LB), THIS QUESTION HAS BEEN FINALLY DETERMINED BY THE DECISION OF
THE COURT OF APPEALS (207 F.2D 391) AND THIS COURT'S DENIAL OF
CERTIORARI (347 U.S. 936); AND THAT RESPONDENTS' CROSS-COMPLAINTS, AND
PROCEEDINGS THEREON, IN THE SUBSEQUENT BOND VALIDATION SUIT IN THE
WASHINGTON COURTS HAVE BEEN ONLY IMPERMISSIBLE COLLATERAL ATTACKS UPON
THE FINAL JUDGMENT OF THE COURT OF APPEALS.  IF THIS ASSERTION IS
CORRECT, THE JUDGMENT OF THE SUPREME COURT OF WASHINGTON NOW BEFORE US
WOULD NECESSARILY HAVE TO BE REVERSED, FOR OBVIOUSLY THAT COURT, LIKE
THIS ONE, MAY NOT, IN SUCH A CASE, RE-EXAMINE AND DECIDE A QUESTION
WHICH HAS BEEN FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION
IN EARLIER LITIGATION BETWEEN THE PARTIES.  WE MUST TURN THEN TO AN
EXAMINATION OF PETITIONER'S CONTENTION. 

IT IS NO LONGER OPEN TO QUESTION THAT THE FEDERAL GOVERNMENT UNDER
THE COMMERCE CLAUSE OF THE CONSTITUTION (ART. I, SEC. 8, CL. 3) HAS
DOMINION, TO THE EXCLUSION OF THE STATES, OVER NAVIGABLE WATERS OF THE
UNITED STATES.  GIBBONS V. OGDEN, 9 WHEAT.  1, 196; NEW JERSEY V.
SARGENT, 269 U.S. 328, 337; UNITED STATES V. APPALACHIAN ELECTRIC POWER
CO., 311 U.S. 377, 424; FIRST IOWA HYDRO-ELECTRIC COOPERATIVE V.
FEDERAL POWER COMM'N, 328 U.S. 152, 173; UNITED STATES V. TWIN CITY
POWER CO., 350 U.S. 222, 224-225.  CONGRESS HAS ELECTED TO EXERCISE
THIS POWER UNDER THE DETAILED AND COMPREHENSIVE PLAN (FN15) FOR
DEVELOPMENT OF THE NATION'S WATER RESOURCES, WHICH IT PRESCRIBED IN THE
FEDERAL POWER ACT, TO BE ADMINISTERED BY THE FEDERAL POWER COMMISSION. 
FIRST IOWA HYDRO-ELECTRIC COOPERATIVE V. FEDERAL POWER COMM'N, SUPRA;
UNITED STATES V. APPALACHIAN ELECTRIC POWER CO., SUPRA. 

DEPENDS, PROVIDES, IN PERTINENT PART: 

"(B)  ANY PARTY TO A PROCEEDING UNDER THIS CHAPTER AGGRIEVED BY AN
ORDER ISSUED BY THE COMMISSION IN SUCH PROCEEDING MAY OBTAIN A REVIEW
OF SUCH ORDER IN THE UNITED STATES COURT OF APPEALS FOR ANY CIRCUIT
WHEREIN THE LICENSEE OR PUBLIC UTILITY TO WHICH THE ORDER RELATES IS
LOCATED  ...  BY FILING IN SUCH COURT, WITHIN 60 DAYS AFTER THE ORDER
OF THE COMMISSION UPON THE APPLICATION FOR REHEARING, A WRITTEN
PETITION PRAYING THAT THE ORDER OF THE COMMISSION BE MODIFIED OR SET
ASIDE IN WHOLE OR IN PART.  A COPY OF SUCH PETITION SHALL FORTHWITH BE
SERVED UPON ANY MEMBER OF THE COMMISSION AND THEREUPON THE COMMISSION
SHALL CERTIFY AND FILE WITH THE COURT A TRANSCRIPT OF THE RECORD UPON
WHICH THE ORDER COMPLAINED OF WAS ENTERED.  UPON THE FILING OF SUCH
TRANSCRIPT SUCH COURT SHALL HAVE EXCLUSIVE JURISDICTION TO AFFIRM,
MODIFY, OR SET ASIDE SUCH ORDER IN WHOLE OR IN PART.  NO OBJECTION TO
THE ORDER OF THE COMMISSION SHALL BE CONSIDERED BY THE COURT UNLESS
SUCH OBJECTION SHALL HAVE BEEN URGED BEFORE THE COMMISSION IN THE
APPLICATION FOR REHEARING UNLESS THERE IS REASONABLE GROUND FOR FAILURE
SO TO DO.  THE FINDING OF THE COMMISSION AS TO THE FACTS, IF SUPPORTED
BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE  ...  .  THE JUDGMENT AND
DECREE OF THE COURT, AFFIRMING, MODIFYING, OR SETTING ASIDE, IN WHOLE
OR IN PART, ANY SUCH ORDER OF THE COMMISSION, SHALL BE FINAL, SUBJECT
TO REVIEW BY THE SUPREME COURT OF THE UNITED STATES UPON CERTIORARI OR
CERTIFICATION AS PROVIDED IN SECTIONS 346 AND 347 OF TITLE 28."  16
U.S.C. SEC. 825LB). 

THIS STATUTE IS WRITTEN IN SIMPLE WORDS OF PLAIN MEANING AND LEAVES
NO ROOM TO DOUBT THE CONGRESSIONAL PURPOSE AND INTENT.  IT CAN HARDLY
BE DOUBTED THAT CONGRESS, ACTING WITHIN ITS CONSTITUTIONAL POWERS, MAY
PRESCRIBE THE PROCEDURES AND CONDITIONS UNDER WHICH, AND THE COURTS IN
WHICH, JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS MAY BE HAD.  CF. LABOR
BOARD V. CHENEY CALIFORNIA LUMBER CO., 327 U.S. 385, 388.  SO ACTING,
CONGRESS IN SEC. 313(B) PRESCRIBED THE SPECIFIC, COMPLETE AND EXCLUSIVE
MODE FOR JUDICIAL REVIEW OF THE COMMISSION'S ORDERS.  SAFE HARBOR WATER
POWER CORP. V. FEDERAL POWER COMM'N, 124 F.2D 800, 804, CERT. DENIED,
316 U.S. 663.  IT THERE PROVIDED THAT ANY PARTY AGGRIEVED BY THE
COMMISSION'S ORDER MAY HAVE JUDICIAL REVIEW, UPON ALL ISSUES RAISED
BEFORE THE COMMISSION IN THE MOTION FOR REHEARING, BY THE COURT OF
APPEALS WHICH "SHALL HAVE EXCLUSIVE JURISDICTION TO AFFIRM, MODIFY, OR
SET ASIDE SUCH ORDER IN WHOLE OR IN PART," AND THAT "THE JUDGMENT AND
DECREE OF THE COURT, AFFIRMING, MODIFYING, OR SETTING ASIDE, IN WHOLE
OR IN PART, ANY SUCH ORDER OF THE COMMISSION, SHALL BE FINAL, SUBJECT
TO REVIEW BY THE SUPREME COURT OF THE UNITED STATES UPON CERTIORARI OR
CERTIFICATION  ...  ."  IT THEREBY NECESSARILY PRECLUDED DE NOVO
LITIGATION BETWEEN THE PARTIES OF ALL ISSUES INHERING IN THE
CONTROVERSY, AND ALL OTHER MODES OF JUDICIAL REVIEW.  (FN16)  HENCE,
UPON JUDICIAL REVIEW OF THE COMMISSION'S ORDER, ALL OBJECTIONS TO THE
ORDER, TO THE LICENSE IT DIRECTS TO BE ISSUED, AND TO THE LEGAL
COMPETENCE OF THE LICENSEE TO EXECUTE ITS TERMS, MUST BE MADE IN THE
COURT OF APPEALS OR NOT AT ALL.  FOR CONGRESS, ACTING WITHIN ITS
POWERS, HAS DECLARED THAT THE COURT OF APPEALS SHALL HAVE "EXCLUSIVE
JURISDICTION" TO REVIEW SUCH ORDERS, AND THAT ITS JUDGMENT "SHALL BE
FINAL," SUBJECT TO REVIEW BY THIS COURT UPON CERTIORARI OR
CERTIFICATION.  SUCH STATUTORY FINALITY NEED NOT BE LABELED RES
JUDICATA, ESTOPPEL, COLLATERAL ESTOPPEL, WAIVER OR THE LIKE EITHER BY
CONGRESS OR THE COURTS. 

THE STATE PARTICIPATED IN THE HEARING BEFORE THE COMMISSION.  IT
THERE VIGOROUSLY OBJECTED TO THE ISSUANCE OF THE LICENSE UPON THE
GROUNDS, AMONG OTHERS, "THAT THE RESERVOIRS WHICH WOULD BE CREATED BY
THE PROPOSED DAMS WOULD INUNDATE A VALUABLE AND IRREPLACEABLE FISH
HATCHERY OWNED BY THE STATE" AND, HENCE, NECESSARILY REQUIRE THE TAKING
OF IT BY THE CITY UNDER THE LICENSE OUGHT; THAT THE CITY HAD NOT
COMPLIED WITH THE APPLICABLE LAWS OF THE STATE RESPECTING CONSTRUCTION
OF THE PROJECT AND PERFORMANCE OF THE ACTS NECESSARILY INCIDENT THERETO
(NOTE 11); AND THAT THE CITY WAS NOT AUTHORIZED BY THE LAWS OF THE
STATE TO ENGAGE IN SUCH BUSINESS.  THE COMMISSION REJECTED THESE
CONTENTIONS OF THE STATE AND MADE ALL THE FINDINGS REQUIRED BY THE ACT
TO SUPPORT ITS ORDER GRANTING THE LICENSE (NOTE 9) INCLUDING THE
FINDING THAT: 

"THE APPLICANT  ...  HAS SUBMITTED SATISFACTORY EVIDENCE OF
COMPLIANCE WITH THE REQUIREMENTS OF ALL APPLICABLE STATE LAWS INSOFAR
AS NECESSARY TO EFFECT THE PURPOSES OF A LICENSE FOR THE PROJECT;
(FN17) AND IT IS A MUNICIPALITY WITHIN THE MEANING OF SECTION 3(7) OF
THE ACT."  (FN18) 

THE STATE THEN PETITIONED THE COMMISSION FOR A REHEARING, REVIVING
THE FOREGOING CONTENTIONS AND RAISING OTHERS.  THE PETITION WAS
DENIED. 

THEREAFTER, THE STATE, FOLLOWING THE PROCEDURES PRESCRIBED BY SEC.
313(B), PETITIONED THE PROPER COURT OF APPEALS FOR REVIEW OF THE
COMMISSION'S FINDINGS AND ORDER.  AFTER FULL HEARING, THAT COURT
REJECTED ALL CONTENTIONS THERE RAISED BY THE STATE, DID NOT DISTURB ANY
OF THE COMMISSION'S FINDINGS, AND AFFIRMED ITS ORDER WITHOUT
MODIFICATION.  WASHINGTON DEPARTMENT OF GAME V. FEDERAL POWER COMM'N,
207 F.2D 391.  IT MADE PARTICULAR MENTION OF, AND APPROVED, THE
COMMISSION'S FINDING, AS REPHRASED BY THE COURT, THAT THE CITY HAD
SUBMITTED "SUCH EVIDENCE OF COMPLIANCE WITH STATE LAW AS, IN THE
COMMISSION'S JUDGMENT, WOULD BE 'APPROPRIATE TO EFFECT THE PURPOSES OF
A FEDERAL LICENSE ON THE NAVIGABLE WATERS OF THE UNITED STATES.'"  ID.,
AT 396. 

MOREOVER, IN ITS BRIEFS IN THE COURT OF APPEALS, THE STATE URGED
REVERSAL OF THE COMMISSION'S ORDER ON THE GROUNDS THAT THE CITY "HAS
NOT SHOWN, NOR COULD IT SHOW, THAT IT HAS AVAILED ITSELF OF ...  ANY
RIGHT TO TAKE OR DESTROY THE PROPERTY OF THE STATE OF WASHINGTON AND
THAT TACOMA, AS A CREATURE OF THE STATE OF WASHINGTON, CANNOT ACT UNDER
THE LICENSE IN OPPOSITION TO THE POLICY OF THE STATE OR IN DEROGATION
OF ITS LAWS."  IN REJECTING THESE CONTENTIONS - THAT THE CITY DOES NOT
HAVE "ANY RIGHT TO TAKE OR DESTROY PROPERTY OF THE STATE" AND "CANNOT
ACT" IN ACCORDANCE WITH THE TERMS OF ITS FEDERAL LICENSE - THE COURT OF
APPEALS SAID: 

"AGAIN, WE TURN TO THE FIRST IOWA CASE, SUPRA.  THERE, TOO, THE
APPLICANT FOR A FEDERAL LICENSE WAS A CREATURE OF THE STATE AND THE
CHIEF OPPOSITION CAME FROM THE STATE ITSELF.  YET, THE SUPREME COURT
PERMITTED THE APPLICANT TO ACT INCONSISTENTLY WITH THE DECLARED POLICY
OF ITS CREATOR, AND TO PREVAIL IN OBTAINING A LICENSE. 

"CONSISTENT WITH THE FIRST IOWA CASE, SUPRA, WE CONCLUDE THAT THE
STATE LAWS CANNOT PREVENT THE FEDERAL POWER COMMISSION FROM ISSUING A
LICENSE OR BAR THE LICENSEE FROM ACTING UNDER THE LICENSE TO BUILD A
DAM ON A NAVIGABLE STREAM SINCE THE STREAM IS UNDER THE DOMINION OF THE
UNITED STATES."  ID., AT 396. 

WE THINK THESE RECITALS SHOW THAT THE VERY ISSUE UPON WHICH
RESPONDENTS STAND HERE WAS RAISED AND LITIGATED IN THE COURT OF APPEALS
AND DECIDED BY ITS JUDGMENT.  BUT EVEN IF IT MIGHT BE THOUGHT THAT THIS
ISSUE WAS NOT RAISED IN THE COURT OF APPEALS, IT CANNOT BE DOUBTED THAT
IT COULD AND SHOULD HAVE BEEN, FOR THAT WAS THE COURT TO WHICH CONGRESS
HAD GIVEN "EXCLUSIVE JURISDICTION TO AFFIRM, MODIFY, OR SET ASIDE" THE
COMMISSION'S ORDER.  AND THE STATE MAY NOT RESERVE THE POINT, FOR
ANOTHER ROUND OF PIECEMEAL LITIGATION, BY REMAINING SILENT ON THE ISSUE
WHILE ITS ACTION TO REVIEW AND REVERSE THE COMMISSION'S ORDER WAS
PENDING IN THAT COURT - WHICH HAD "EXCLUSIVE JURISDICTION" OF THE
PROCEEDING AND WHOSE JUDGMENT THEREIN AS DECLARED BY CONGRESS "SHALL BE
FINAL," SUBJECT TO REVIEW BY THIS COURT UPON CERTIORARI OR
CERTIFICATION.  AFTER THE COURT OF APPEALS' JUDGMENT WAS RENDERED, THE
STATE PETITIONED THIS COURT FOR A WRIT OF CERTIORARI WHICH WAS DENIED. 
347 U.S. 936. 

THESE WERE PRECISELY THE PROCEEDINGS PRESCRIBED BY CONGRESS IN SEC.
313(B) OF THE ACT FOR JUDICIAL REVIEW OF THE COMMISSION'S FINDINGS AND
ORDER.  THEY RESULTED IN AFFIRMANCE.  THAT RESULT, CONGRESS HAS
DECLARED, "SHALL BE FINAL." 

BUT RESPONDENTS SAY THAT THE COURT OF APPEALS DID NOT DECIDE THE
QUESTION OF LEGAL CAPACITY OF THE CITY TO ACT UNDER THE LICENSE AND,
THEREFORE, ITS DECISION IS NOT FINAL ON THAT QUESTION, BUT LEFT IT OPEN
TO FURTHER LITIGATION.  THEY RELY UPON THE FOLLOWING LANGUAGE OF THE
OPINION: 

"HOWEVER, WE DO NOT TOUCH THE QUESTION AS TO THE LEGAL CAPACITY OF
THE CITY OF TACOMA TO INITIATE AND ACT UNDER THE LICENSE ONCE IT IS
GRANTED.  THERE MAY BE LIMITATIONS IN THE CITY CHARTER, FOR INSTANCE,
AS TO INDEBTEDNESS LIMITATIONS.  QUESTIONS OF THIS NATURE MAY BE
INQUIRED INTO BY THE COMMISSION AS RELEVANT TO THE PRACTICABILITY OF
THE PLAN, BUT THE COMMISSION HAS NO POWER TO ADJUDICATE THEM."  ID., AT
396-397. 

WE BELIEVE THAT RESPONDENTS' CONSTRUCTION OF THIS LANGUAGE IS IN
ERROR.  THE QUESTIONED LANGUAGE EXPRESSLY REFERS TO POSSIBLE
"INDEBTEDNESS LIMITATIONS" IN THE CITY'S CHARTER AND "QUESTIONS OF THIS
NATURE," NOT TO THE RIGHT OF THE CITY TO RECEIVE AND PERFORM, AS
LICENSEE OF THE FEDERAL GOVERNMENT UNDER THE FEDERAL POWER ACT, THE
FEDERAL RIGHTS DETERMINED BY THE COMMISSION AND DELEGATED TO THE CITY
AS SPECIFIED IN THE LICENSE.  THAT THIS WAS THE MEANING OF THE COURT,
IF ITS MEANING MIGHT OTHERWISE BE DOUBTFUL, IS MADE CERTAIN BY THE
FACTS THAT THE COURT DID NOT DISTURB A SINGLE ONE OF THE COMMISSION'S
FINDINGS; AFFIRMED ITS ORDER WITHOUT MODIFICATION; AND SAID, IN THE
SENTENCE IMMEDIATELY PRECEDING THE QUESTIONED LANGUAGE:  "CONSISTENT
WITH THE FIRST IOWA CASE, SUPRA, WE CONCLUDE THAT THE STATE LAWS CANNOT
PREVENT THE FEDERAL POWER COMMISSION FROM ISSUING A LICENSE OR BAR THE
LICENSEE FROM ACTING UNDER THE LICENSE TO BUILD A DAM ON A NAVIGABLE
STREAM SINCE THE STREAM IS UNDER THE DOMINION OF THE UNITED STATES." 
ID., AT 396. 

THE FINAL JUDGMENT OF THE COURT OF APPEALS WAS EFFECTIVE, NOT ONLY
AGAINST THE STATE, BUT ALSO AGAINST ITS CITIZENS, INCLUDING THE
TAXPAYERS OF TACOMA, FOR THEY, IN THEIR COMMON PUBLIC RIGHTS AS
CITIZENS OF THE STATE, WERE REPRESENTED BY THE STATE IN THOSE
PROCEEDINGS, AND, LIKE IT, WERE BOUND BY THE JUDGMENT.  WYOMING V.
COLORADO, 286 U.S. 494, 506-509; CF. MISSOURI V. ILLINOIS, 180 U.S.
208, 241; KANSAS V. COLORADO, 185 U.S. 125, 142; S.C.  206 U.S. 46, 49;
GEORGIA V. TENNESSEE COPPER CO., 206 U.S. 230, 237; HUDSON WATER CO. V.
MCCARTER, 209 U.S. 349, 355; PENNSYLVANIA V. WEST VIRGINIA, 262 U.S.
553, 591, 595; NORTH DAKOTA V. MINNESOTA, 263 U.S. 365, 373. 

WE CONCLUDE THAT THE JUDGMENT OF THE COURT OF APPEALS, UPON THIS
COURT'S DENIAL OF THE STATE'S PETITION FOR CERTIORARI, BECAME FINAL
UNDER SEC. 313(B) OF THE ACT, AND IS BINDING UPON THE STATE OF
WASHINGTON, ITS DIRECTORS OF FISHERIES AND OF GAME, AND ITS CITIZENS,
INCLUDING THE TAXPAYERS OF TACOMA; AND THAT THE OBJECTIONS AND CLAIMS
TO THE CONTRARY ASSERTED IN THE CROSS-COMPLAINTS OF THE STATE, ITS
DIRECTORS OF FISHERIES AND OF GAME, AND THE TAXPAYERS OF TACOMA, IN
THIS BOND VALIDATION SUIT, WERE IMPERMISSIBLE COLLATERAL ATTACKS UPON,
AND DE NOVO LITIGATION BETWEEN THE SAME PARTIES OF ISSUES DETERMINED
BY, THE FINAL JUDGMENT OF THE COURT OF APPEALS.  THEREFORE, THE
JUDGMENT OF THE SUPREME COURT OF WASHINGTON IS REVERSED AND THE CAUSE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED    FN1  41 STAT. 1063 ET SEQ., 16
U.S.C. SEC. 791A ET SEQ.    FN2  41 STAT. 1074, 16 U.S.C. SEC. 814. 

FN3  ON AUGUST 6, 1948, THE CITY FILED WITH THE COMMISSION ITS
DECLARATION OF INTENTION TO BUILD THIS POWER PROJECT.  ON MARCH 18,
1949, THE COMMISSION RULED THAT THE COWLITZ RIVER WAS NAVIGABLE BELOW
THE PROPOSD PROJECT AND THAT ITS CONSTRUCTION WOULD AFFECT NAVIGATION
AND INTERSTATE COMMERCE AND, HENCE, COULD NOT BE BUILT WITHOUT A
LICENSE FROM THE COMMISSION, BECAUSE OF THE PROVISIONS OF SEC. 23 OF
THE FEDERAL POWER ACT.  41 STAT.  1075, 16 U.S.C. SEC. 816. 

FN4  "'MUNICIPALITY' (AS USED IN THE FEDERAL POWER ACT) 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."  SEC. 3(7), 41 STAT. 1063, 16 U.S.C. SEC. 796(7). 

BY A WASHINGTON STATUTE ALL CITIES AND TOWNS OF THAT STATE ARE MADE
LEGALLY COMPETENT TO "CONSTRUCT, CONDEMN AND PURCHASE, PURCHASE,
ACQUIRE, ADD TO, MAINTAIN, AND OPERATE WORKS, PLANTS, AND FACILITIES
FOR THE PURPOSE OF FURNISHING THE CITY OR TOWN AND ITS INHABITANTS, AND
ANY OTHER PERSONS, WITH GAS, ELECTRICITY, AND OTHER MEANS OF POWER AND
FACILITIES FOR LIGHTING, HEATING, FUEL, AND POWER PURPOSES  ...  ." 
WASH. REV. CODE 80.40.050.  TACOMA HAS EXERCISED SUCH POWERS SINCE
1893. 

FN5  41 STAT. 1065, 16 U.S.C. SEC. 797(E).  THAT SUBSECTION, SO FAR
AS PRESENTLY PERTINENT, PROVIDES: 

"THE COMMISSION IS AUTHORIZED AND EMPOWERED: 

     *         *         *         *         * 

"(E)  TO ISSUE LICENSES TO CITIZENS OF THE UNITED STATES, OR TO ANY
ASSOCIATION OF SUCH CITIZENS, OR TO ANY CORPORATION ORGANIZED UNDER THE
LAWS OF THE UNITED STATES OR ANY STATE THEREOF, OR TO ANY STATE OR
MUNICIPALITY FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND
MAINTAINING DAMS, WATER CONDUITS, RESERVOIRS, POWERHOUSES, TRANSMISSION
LINES, OR OTHER PROJECT WORKS NECESSARY OR CONVENIENT FOR THE
DEVELOPMENT AND IMPROVEMENT OF NAVIGATION AND FOR THE DEVELOPMENT,
TRANSMISSION, AND UTILIZATION OF POWER ACROSS, ALONG, FROM, OR IN ANY
OF THE STREAMS OR OTHER BODIES OF WATER OVER WHICH CONGRESS HAS
JURISDICTION UNDER ITS AUTHORITY TO REGULATE COMMERCE WITH FOREIGN
NATIONS AND AMONG THE SEVERAL STATES  ...  ." 

FN6  THE APPLICATION WAS ACCOMPANIED BY THE MAPS, PLANS,
SPECIFICATIONS AND ESTIMATES OF COST COVERING THE PROPOSED PROJECT, AS
REQUIRED BY SEC. 9(A) OF THE ACT.  41 STAT. 1068, 16 U.S.C. SEC.
802(A).  THOSE MAPS, PLANS AND SPECIFICATIONS MADE CLEAR THAT THE
STATE'S HATCHERY WOULD BE INUNDATED BY THE PROPOSED MAYFIELD
RESERVOIR. 

FN7  THE COWLITZ RIVER IS A TRIBUTARY OF THE COLUMBIA IN SOUTHWESTERN
WASHINGTON.  IT DRAINS AN AREA OF 2,490 SQUARE MILES OF THE WESTERN
SLOPE OF THE CASCADE RANGE, AND FLOWS WESTERLY FOR ABOUT 100 MILES AND
THENCE SOUTHERLY FOR 30 MILES TO ITS CONFLUENCE WITH THE COLUMBIA AT
LONGVIEW WHICH IS ABOUT 65 MILES ABOVE THE MOUTH OF THE COLUMBIA.  IT
IS CONCEDED TO BE NAVIGABLE AT ALL POINTS BELOW THE PROJECTED MAYFIELD
DAM AND, AT THE POINT OF CONFLUENCE WITH THE COLUMBIA, IS A TIDAL RIVER
WITH AN AVERAGE FLOW OF ABOUT 10,000 CUBIC FEET PER SECOND. 

FN8  THE COMMISSION'S OPINION DISCUSSED AT LENGTH THE STATE'S BASIC
CONTENTION THAT THE RIVER SHOULD BE LEFT IN ITS NATURAL STATE FOR THE
UNOBSTRUCTED USE AND PROPAGATION OF ANADROMOUS FISH AND, UPON THAT
CONTENTION, CONCLUDED: 

"THE QUESTION POSED DOES NOT APPEAR TO US TO BE BETWEEN ALL POWER AND
NO FISH BUT RATHER BETWEEN LARGE POWER BENEFITS (NEEDED PARTICULARLY
FOR DEFENSE PURPOSES), IMPORTANT FLOOD CONTROL BENEFITS AND NAVIGATION
BENEFITS, WITH INCIDENTAL RECREATION AND INTANGIBLE BENEFITS, BALANCED
AGAINST SOME FISH LOSSES, OR A RETENTION OF THE STREAM IN ITS PRESENT
NATURAL CONDITION UNTIL SUCH TIME IN THE FAIRLY NEAR FUTURE WHEN
ECONOMIC PRESSURES WILL FORCE ITS FULL UTILIZATION.  WITH PROPER
TESTING AND EXPERIMENTATION BY THE CITY OF TACOMA, IN CO-OPERATION WITH
INTERESTED STATE AND FEDERAL AGENCIES, A FISHERY PROTECTIVE PROGRAM CAN
BE EVOLVED WHICH WILL PREVENT UNDUE LOSS OF FISHERY VALUES IN RELATION
TO THE OTHER VALUES.  FOR THESE REASONS WE ARE ISSUING THE LICENSE WITH
CERTAIN CONDITIONS WHICH ARE SET FORTH IN OUR ACCOMPANYING ORDER."  92
P.U.R.(N.S.)  79, 85. 

FN9  IN ITS ORDER GRANTING THE LICENSE THE COMMISSION MADE 66
FINDINGS IN WHICH, AMONG OTHER THINGS, IT FOUND THAT THE COWLITZ IS A
NAVIGABLE WATER OF THE UNITED STATES BELOW THE SITE OF THE PROPOSED
PROJECT AND THAT THE DAMS AND RESERVOIRS WILL AFFECT THE INTERESTS OF
INTERSTATE OR FOREIGN COMMERCE (SEE SECS. 4(E) AND 23 OF THE ACT, 41
STAT. 1065, 1075, 16 U.S.C. SECS. 797(E), 816); THAT A CRITICAL
SHORTAGE OF ELECTRIC POWER EXISTS ON THE WEST SIDE OF THE CASCADE
RANGE; THAT THE PROJECT "WILL BE AN EXCEPTIONALLY VALUABLE ADDITION TO
THE NORTHWEST REGION POWER SUPPLY"; THAT "NONE OF THE HYDROELECTRIC
PROJECTS SUGGESTED FOR CONSTRUCTION IN LIEU OF THE COWLITZ PROJECT CAN
BE CONSTRUCTED AS QUICKLY OR AS ECONOMICALLY AS THE COWLITZ PROJECT";
THAT THE PROJECT HAS BEEN APPROVED BY THE CHIEF OF ENGINEERS AND THE
SECRETARY OF THE ARMY (SEE SEC. 4(E), 41 STAT. 1065, 16 U.S.C. SEC.
797(E); THAT THE PROJECT IS FINANCIALLY AND ECONOMICALLY FEASIBLE; THAT
"THE APPLICANT  ...  HAS SUBMITTED SATISFACTORY EVIDENCE OF COMPLIANCE
WITH THE REQUIREMENTS OF ALL APPLICABLE STATE LAWS INSOFAR AS NECESSARY
TO EFFECT THE PURPOSES OF A LICENSE FOR THE PROJECT (SEE SEC. 9(B), 41
STAT. 1068, 16 U.S.C. SEC. 802(B)) AND IT IS A MUNICIPALITY WITHIN THE
MEANING OF SECTION 3(7) OF THE ACT"; AND THAT "UNDER PRESENT
CIRCUMSTANCES AND CONDITIONS AND UPON THE TERMS AND CONDITIONS
HEREINAFTER INCLUDED IN THE LICENSE, THE PROJECT IS BEST ADAPTED TO A
COMPREHENSIVE PLAN FOR IMPROVING OR DEVELOPING THE WATERWAY INVOLVED
FOR THE USE OR BENEFIT OF INTERSTATE OR FOREIGN COMMERCE, FOR THE
IMPROVEMENT AND UTILIZATION OF WATER-POWER DEVELOPMENT, FOR THE
CONSERVATION AND PRESERVATION OF FISH AND WILDLIFE RESOURCES, AND FOR
OTHER BENEFICIAL PUBLIC USES INCLUDING RECREATIONAL PURPOSES."  SEE
SEC. 10(A), 41 STAT.  1068, 16 U.S.C. SEC. 803(A). 

FN10  THE LICENSE WAS ISSUED ON NOVEMBER 28, 1951, FOR A PERIOD OF 50
YEARS FROM JANUARY 1, 1952 - THE FIRST DAY OF THE MONTH IN WHICH THE
CITY FILED WITH THE COMMISSION ITS ORDINANCE, NO. 14386, ENACTED ON
JANUARY 9, 1952, FORMALLY ACCEPTING THE LICENSE AND ALL ITS
REQUIREMENTS AND CONDITIONS.  SEE SEC. 6, 41 STAT. 1067, 16 U.S.C. SEC.
799.  THE LICENSE, AMONG OTHER THINGS, INCORPORATED THE CITY'S MAPS,
PLANS, SPECIFICATIONS, AND ESTIMATES OF COST FOR THE CONSTRUCTION OF
THE PROJECT (SEE SEC. 9(A), 41 STAT. 1068, 16 U.S.C.  SEC. 802(A));
INCORPORATED BY REFERENCE ALL PROVISIONS OF THE FEDERAL POWER ACT (SEE
SEC.  6, 41 STAT. 1067, 16 U.S.C. SEC. 799); REQUIRED CONSTRUCTION OF
THE PROJECT TO BE COMMENCED WITHIN TWO YEARS FROM THE EFFECTIVE DATE OF
THE LICENSE AND TO BE COMPLETED WITHIN 36 MONTHS (SEE SEC. 13, 41 STAT.
1071, 16 U.S.C. SEC. 806); REQUIRED THE CITY TO CONSTRUCT, MAINTAIN AND
OPERATE SUCH FISH-HANDLING FACILITIES AND FISH HATCHERIES AS MAY BE
PRESCRIBED BY THE COMMISSION, BUT, BEFORE DOING SO, TO MAKE FURTHER
STUDIES, TESTS AND EXPERIMENTS IN COOPERATION WITH THE UNITED STATES
FISH AND WILDLIFE SERVICE AND THE DEPARTMENTS OF FISHERIES AND OF GAME
OF THE STATE OF WASHINGTON TO DETERMINE THE EFFECTIVENESS OF SUCH
FACILITIES, AND TO SUBMIT THE PLANS THEREFOR TO THE COMMISSION AND
OBTAIN ITS APPROVAL. 

FN11 THE WASHINGTON STATUTES RELIED UPON WERE WASH. REV. CODE
75.20.050, PROSCRIBING THE DIVERSION OR USE OF WATER WITHOUT A STATE
PERMIT; WASH. REV. CODE 75.20.100, REQUIRING THE STATE'S APPROVAL OF
PLANS FOR THE PROTECTION OF FISH IN CONNECTION WITH THE CONSTRUCTION OF
DAMS; AND WASH. REV. CODE 75.20.010, PROSCRIBING THE CONSTRUCTION OF
ANY DAM HIGHER THAN 25 FEET ACROSS ANY STREAM TRIBUTARY TO THE
COLUMBIA, DOWNSTREAM FROM THE MCNARY DAM, WITHIN THE MIGRATION RANGE OF
ANADROMOUS FISH. 

FN12  THIS ORDER WAS ENTERED BY THE SUPERIOR COURT OF THURSTON COUNTY
TO WHICH THE CAUSE HAD BEEN TRANSFERRED. 

FN13  THE COURT, IN ANSWERING THE CONTENTIONS OF THE TAXPAYERS AND
THE STATE'S DIRECTORS OF FISHERIES AND OF GAME THAT THE STATE'S
STATUTES PROSCRIBING THE DIVERSION OF WATER AND THE CONSTRUCTION OF
DAMS (SEE NOTE 11) "ARE A VALID EXERCISE OF THE STATE'S POLICE POWER"
(43 WASH. 2D, AT 483, 262 P.2D, AT 222) AND "MUST BE COMPLIED WITH
BEFORE THE CITY CAN PROCEED WITH THE CONSTRUCTION OF ITS PROJECT" (43
WASH. 2D, AT 477, 262 P.2D, AT 219), SAID: "THESE STATE LAWS ARE IN
DIRECT CONFLICT WITH THE FEDERAL POWER ACT, THEY ARE INVALID UNDER THE
TERMS OF THE SUPREMACY CLAUSE CONTAINED IN ARTICLE VI OF THE UNITED
STATES CONSTITUTION, AND WHERE, AS HERE, THE STATE AND FEDERAL ACTS
CANNOT BE RECONCILED OR CONSISTENTLY STAND TOGETHER, THE ACTION OF A
STATE EVEN UNDER ITS POLICE POWER MUST GIVE WAY."  43 WASH. 2D, AT 483,
262 P.2D, AT 222.  AND IN ANSWERING THE FURTHER CONTENTION THAT THE
CITY, "BEING A MUNICIPAL CORPORATION CREATED BY THE STATE, MAY NOT DEFY
THE LAWS OF ITS CREATOR" (43 WASH.  2D, AT 491, 262 P.2D, AT 227), THE
COURT SAID:  "THE FEDERAL POWER ACT DEFINES THE TERM MUNICIPAL
CORPORATION AND AUTHORIZES THE POWER COMMISSION TO ISSUE A LICENSE TO
SUCH AN ENTITY.  APPELLANT HAS COMPLIED WITH THE STATE LAW WITH RESPECT
TO THE RIGHT OF A MUNICIPALITY TO ENGAGE IN THE BUSINESS OF DEVELOPING,
TRANSMITTING AND DISTRIBUTING POWER.  HAVING BEEN GRANTED A LICENSE BY
THE POWER COMMISSION, WE HOLD THAT APPELLANT IS AT THE PRESENT TIME IN
THE SAME POSITION AS ANY OTHER LICENSEE UNDER THE ACT."  43 WASH. 2D,
AT 492, 262 P.2D, AT 227. 

FN14  THE SUPREME COURT OF WASHINGTON WAS THEN SOMEWHAT DIFFERENTLY
CONSTITUTED THAN WHEN IT RENDERED ITS DECISION ON OCTOBER 14, 1953,
REVERSING THE SUPERIOR COURT'S JUDGMENT SUSTAINING THE TAXPAYERS'
DEMURRER TO THE CITY'S COMPLAINT.  CITY OF TACOMA V. TAXPAYERS OF
TACOMA, 43 WASH. 2D 468, 262 P.2D 214. 

FN15  FOR A SUMMARY OF THE DETAILED AND COMPREHENSIVE PLAN OF THE ACT
SEE FIRST IOWA CASE, SUPRA, AT 181, NOTE 25. 

FN16  CF., E.G., MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41,
48-50; UNITED STATES V. CORRICK, 298 U.S. 435; WASHINGTON TERMINAL CO.
V. BOSWELL, 75 U.S. APP. D.C. 1, 124 F.2D 235. 

FN17  SEE SEC. 9(B) OF THE ACT, 41 STAT. 1068, 16 U.S.C. SEC.
802(B). 

FN18  UNDER SEC. 3(7) OF THE ACT "MUNICIPALITY" MEANS, AMONG OTHER
THINGS, A CITY "COMPETENT UNDER THE LAWS OF THE STATE TO CARRY ON THE
BUSINESS OF DEVELOPING, TRANSMITTING, UTILIZING, OR DISTRIBUTING
POWER."  41 STAT. 1063, 16 U.S.C. SEC. 796(7).  IT IS NO LONGER
DISPUTED THAT TACOMA IS EXPRESSLY AUTHORIZED BY WASH. REV. CODE
80.40.050 TO CARRY ON SUCH BUSINESS, AND THAT IT HAS DONE SO FOR MANY
YEARS.  IN FACT THE STATE'S BRIEF IN THIS COURT GOES MUCH FURTHER,
SAYING THAT "IMPLICIT IN THE STATE COURT'S RULING IS THAT PETITIONER,
IF LICENSED, COULD BUILD A DAM ON A PLAN WHICH WOULD NOT NECESSITATE
THE DESTRUCTION OF THE STATE FISH HATCHERY," AND THAT "TACOMA  ... HAS
THE RIGHT TO BUILD THE DAM IN SUCH A WAY THAT THE FISH HATCHERY WILL
NOT BE DAMAGED." 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION, BUT DEEM IT APPROPRIATE TO STATE MY
UNDERSTANDING OF WHAT THE COURT HAS HELD.  THE COURT OF APPEALS IN THE
EARLIER PROCEEDING HAD JURISDICTION TO DETERMINE WHETHER STATE OR
FEDERAL LAW GOVERNED TACOMA'S POWER TO CONDEMN THE STATE'S HATCHERY,
AND THAT ISSUE ITSELF WAS A FEDERAL QUESTION.  SECTION 313(B) OF THE
FEDERAL POWER ACT THEREFORE FORECLOSED RELITIGATION OF THIS ISSUE IN
THE PRESENT CASE.  I DO NOT UNDERSTAND THE COURT TO SUGGEST THAT THE
FEDERAL POWER ACT ENDOWED THE COMMISSION AND THE COURT OF APPEALS WITH
AUTHORITY TO DECIDE ANY ISSUES OF STATE LAW IF SUCH LAW WERE DEEMED
CONTROLLING, OR THAT HAD THE COURT OF APPEALS UNDERTAKEN TO DO SO, SUCH
A DETERMINATION WOULD HAVE FORECLOSED RE-EXAMINATION OF SUCH A DECISION
IN OTHER PROCEEDINGS. 
..END :























MORAND V. CITY OF RALEIGH 357 U.S. 343 


NO. 949.  DECIDED JUNE 23, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  247 N.C. 363, 100
S.E.2D 870. 


MORAND ET UX. V. CITY OF RALEIGH. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















DUNN V. COUNTY OF LOS ANGELES 357 U.S. 344 


NO. 952.  DECIDED JUNE 23, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  155 CAL. APP. 2D 789, 318 P.2D 795. 


DUNN ET AL. V. COUNTY OF LOS ANGELES ET AL. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :















NATIONAL LABOR RELATIONS BOARD V. MILK DRIVERS AND DAIRY EMPLOYEES LOCAL
UNIONS NOS. 338 AND 680, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO 357 U.S. 345 


NO. 412.  DECIDED JUNE 23, 1958 - CERTIORARI GRANTED AND JUDGMENT
REVERSED ON AUTHORITY OF CASES CITED.  - REPORTED BELOW:  245 F.2D
817. 


NATIONAL LABOR RELATIONS BOARD V. MILK DRIVERS AND DAIRY EMPLOYEES LOCAL
UNIONS NOS.  338 AND 680, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED ON THE AUTHORITY OF LOCAL 1976, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, ET AL. V.
NATIONAL LABOR RELATIONS BOARD; NATIONAL LABOR RELATIONS BOARD V.
GENERAL DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, LOCAL NO.
886, AFL-CIO; AND LOCAL 850, INTERNATIONAL ASSOCIATION OF MACHINISTS,
AFL-CIO, V. NATIONAL LABOR RELATIONS BOARD, ALL DECIDED TOGETHER JUNE
16, 1958, AND REPORTED ANTE, P. 93. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE DOUGLAS DISSENT
FOR THE REASONS STATED IN THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS
IN THESE CASES. 
..END :























KLAW V. SCHAFFER 357 U.S. 346 


NO. 921.  DECIDED JUNE 23, 1958 - MOTION TO SUBSTITUTE NEW PARTY
RESPONDENT DENIED AS UNTIMELY.  - REPORTED BELOW:  251 F.2D 615. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO DISTRICT
COURT WITH INSTRUCTIONS TO DISMISS COMPLAINT AS ABATED. 

KLAW V. SCHAFFER, POSTMASTER, NEW YORK CITY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE MOTION TO SUBSTITUTE HOWARD COONEN, INDIVIDUALLY AND REGIONAL
OPERATIONS DIRECTOR IN CHARGE OF THE UNITED STATES POST OFFICE AT NEW
YORK, NEW YORK, AS THE PARTY RESPONDENT IN THE PLACE AND STEAD OF
ROBERT H. SCHAFFER, RESIGNED, IS DENIED AS UNTIMELY.  SNYDER V. BUCK,
340 U.S. 15.  THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE
JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS THE COMPLAINT AS ABATED. 
..END :






GLANZMAN, DBA GLANZMAN STUDIOS AND BOWERY ENTERPRISES V. SCHAFFER 357
U.S. 347 


NO. 986.  DECIDED JUNE 23, 1958 - MOTION TO SUBSTITUTE NEW PARTY
RESPONDENT DENIED AS UNTIMELY.  - REPORTED BELOW:  252 F.2D 333. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO DISTRICT
COURT WITH INSTRUCTIONS TO DISMISS COMPLAINT AS ABATED. 

GLANZMAN, DOING BUSINESS AS GLANZMAN STUDIOS AND BOWERY ENTERPRISES, V.
SCHAFFER, POSTMASTER, NEW YORK CITY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISPENSE WITH THE PRINTING OF THE PETITION IS GRANTED. 
THE MOTION TO SUBSTITUTE ROBERT K. CHRISTENBERRY, ACTING POSTMASTER,
NEW YORK, NEW YORK, AS THE PARTY RESPONDENT IN THE PLACE AND STEAD OF
ROBERT H. SCHAFFER, RESIGNED, IS DENIED AS UNTIMELY.  SNYDER V. BUCK,
340 U.S. 15.  THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE
JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS THE COMPLAINT AS ABATED. 
..END :




WASHINGTON V. UNITED STATES 357 U.S. 348 


NO. 1012.  DECIDED JUNE 23, 1958 - REPORTED BELOW:  253 F.2D 913. 


CERTIORARI GRANTED; JUDGMENT REVERSED BECAUSE OF INSUFFICIENCY OF THE
EVIDENCE; AND CASE REMANDED. 

WASHINGTON V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT IS REVERSED
BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE AND THE CASE IS REMANDED
TO THAT COURT. 

MR. JUSTICE BURTON, MR. JUSTICE CLARK, AND MR. JUSTICE WHITTAKER
DISSENT. 
..END :








FLORA V. UNITED STATES 357 U.S. 63 


NO. 492.  ARGUED MAY 20, 1958 - DECIDED JUNE 16, 1958 - 246 F.2D 929,
AFFIRMED. 


A TAXPAYER MUST PAY THE FULL AMOUNT OF AN INCOME TAX DEFICIENCY
ASSESSED BY THE COMMISSIONER OF INTERNAL REVENUE BEFORE HE MAY
CHALLENGE ITS CORRECTNESS BY A SUIT IN A FEDERAL DISTRICT COURT FOR
REFUND UNDER 28 U.S.C. SEC. 1346(A)(1).  PP. 63-76. 

FLORA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER A TAXPAYER MUST PAY THE FULL AMOUNT
OF AN INCOME TAX DEFICIENCY BEFORE HE MAY CHALLENGE ITS CORRECTNESS BY
A SUIT FOR REFUND UNDER 28 U.S.C.  SEC. 1346(A)(1). 

DURING 1950 PETITIONER SUFFERED LOSSES ON THE SALE OF CERTAIN
COMMODITIES AND FUTURES.  HE REPORTED THEM AS ORDINARY LOSSES, BUT THE
COMMISSIONER OF INTERNAL REVENUE CHARACTERIZED THEM AS CAPITAL LOSSES. 
A DEFICIENCY ASSESSMENT WAS LEVIED IN THE AMOUNT OF $28,908.60,
INCLUDING INTEREST.   PETITIONER MADE TWO PAYMENTS THAT TOTALED
$5,058.54, AND THEN SUBMITTED A CLAIM FOR REFUND OF THAT AMOUNT.  THE
CLAIM WAS DISALLOWED.  ON AUG. 3, 1956, PETITIONER BROUGHT THIS ACTION
UNDER 28 U.S.C. SEC. 1346(A)(1) FOR REFUND.  THE UNITED STATES MOVED TO
DISMISS FOR WANT OF JURISDICTION AND FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED.  THE DISTRICT JUDGE HELD THAT BECAUSE
PETITIONER HAD NOT PAID THE FULL AMOUNT OF THE DEFICIENCY HE "SHOULD
NOT MAINTAIN" THE ACTION.  BECAUSE THE QUESTION HAD NOT BEEN RESOLVED
BY THE COURT OF APPEALS, HOWEVER, HE DEEMED IT ADVISABLE TO PASS UPON
THE MERITS, AND UPON DOING SO ENTERED JUDGMENT FOR DEFENDANT UNITED
STATES.  142 F. SUPP.  602.  THE COURT OF APPEALS FOR THE TENTH CIRCUIT
VACATED THE JUDGMENT AND REMANDED WITH INSTRUCTIONS TO DISMISS, HOLDING
THAT THE COMPLAINT "FAILED TO STATE A CLAIM" BECAUSE PETITIONER HAD NOT
PAID THE ENTIRE ASSESSMENT FOR THE PERIOD IN QUESTION.  246 F.2D 929. 
(FN1)  WE GRANTED CERTIORARI, 355 U.S. 881, TO RESOLVE THE CONFLICT
BETWEEN THAT DECISION AND BUSHMIAER V. UNITED STATES, 230 F.2D 146
(C.A. 8TH CIR.).  (FN2) 

THE PERTINENT JURISDICTIONAL STATUTE, 28 U.S.C. SEC. 1346(A)(1),
READS AS FOLLOWS: 

"(A)  THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION,
CONCURRENT WITH THE COURT OF CLAIMS, OF: 

"(1)  ANY CIVIL ACTION AGAINST THE UNITED STATES FOR THE RECOVERY OF
ANY INTERNAL-REVENUE TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY
ASSESSED OR COLLECTED, OR ANY PENALTY CLAIMED TO HAVE BEEN COLLECTED
WITHOUT AUTHORITY OR ANY SUM ALLEGED TO HAVE BEEN EXCESSIVE OR IN ANY
MANNER WRONGFULLY COLLECTED UNDER THE INTERNAL-REVENUE LAWS  ...  ." 
IN MATTERS OF STATUTORY CONSTRUCTION THE DUTY OF THIS COURT IS TO GIVE
EFFECT TO THE INTENT OF CONGRESS, AND IN DOING SO OUR FIRST REFERENCE
IS OF COURSE TO THE LITERAL MEANING OF WORDS EMPLOYED.  THE PRINCIPLE
OF STRICT CONSTRUCTION OF WAIVERS OF SOVEREIGN IMMUNITY, UNITED STATES
V. MICHEL, 282 U.S. 656, AND THE SHARP DIVISION OF OPINION AMONG THE
LOWER COURTS ON THE MEANING OF THE PERTINENT STATUTORY LANGUAGE SUGGEST
THE PRESENCE OF AMBIGUITY IN WHAT MIGHT OTHERWISE BE TERMED A CLEAR
AUTHORIZATION TO SUE FOR THE REFUND OF "ANY SUM."  CONSEQUENTLY, A
THOROUGH CONSIDERATION OF THE RELEVANT LEGISLATIVE HISTORY IS
REQUIRED. 

ACT OF 1921.  (FN3)  ITS ESSENTIAL LANGUAGE SEEMS TO HAVE BEEN COPIED
FROM R.S. SEC. 3226, THE PREDECESSOR OF THE PRESENT CLAIM-FOR-REFUND
STATUTE, 26 U.S.C. (SUPP. V) SEC. 7422(A).  THOSE STATUTES USE LANGUAGE
IDENTICAL TO THAT APPEARING ABOVE TO PROVIDE THAT NO SUIT FOR THE
REFUND OF A "TAX," "PENALTY," OR "SUM" SHALL BE MAINTAINED UNTIL
SIMILAR RELIEF HAS BEEN SOUGHT FROM THE SECRETARY OR HIS DELEGATE. 
(FN4)  THE MEANING THAT HAS BEEN ASCRIBED TO THIS LANGUAGE IN THE CLAIM
FOR-REFUND STATUTE PROVIDES THE KEY TO WHAT CONGRESS INTENDED WHEN IT
USED THAT LANGUAGE IN THE JURISDICTIONAL PROVISION. 

THE ORIGINAL CLAIM-FOR-REFUND STATUTE, SECTION 19 OF THE REVENUE ACT
OF JULY 13, 1866, PROVIDED THAT NO SUIT SHOULD BE MAINTAINED IN ANY
COURT FOR THE RECOVERY OF "ANY TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR
ILLEGALLY ASSESSED OR COLLECTED, UNTIL APPEAL SHALL HAVE BEEN DULY MADE
TO THE COMMISSIONER OF INTERNAL REVENUE  ...  ."  (FN5) ON THIS
"APPEAL" THE COMMISSIONER WAS EMPOWERED TO "REMIT, REFUND, AND PAY
BACK" ALL TAXES OR PENALTIES IMPROPERLY ASSESSED OR COLLECTED.  (FN6)
WHEN THE APPEAL REQUIREMENT WAS RESTATED IN SECTION 3226 OF THE REVISED
STATUTES, (FN7) CONGRESS ADDED THE "PENALTY" AND "SUM" CLAUSES,
BRINGING TOGETHER FOR THE FIRST TIME THE THREE-WAY DIVISION THAT
SURVIVES IN 26 U.S.C. (SUPP. V) SEC. 7422(A) AND 28 U.S.C. SEC.
1346(A)(1).  THE REVISERS LEFT NO INDICATION OF WHAT SIGNIFICANCE, IF
ANY, WAS TO BE ATTACHED TO THIS ADDITION. 

DURING THE PERIOD OF THIS FORMATIVE LEGISLATION REFUND SUITS COULD
NOT BE BROUGHT AGAINST THE UNITED STATES BECAUSE OF ITS SOVEREIGN
IMMUNITY.  TAX LITIGATION TOOK THE FORM OF AN ACTION OF ASSUMPSIT
AGAINST THE COLLECTOR.  SEE PHILADELPHIA V. COLLECTOR, 5 WALL.  720. 
(FN8)  SUCH SUITS WERE OF COURSE SUBJECT TO THE PROVISION IN SECTION 19
OF THE 1866 ACT THAT THEY MUST BE PRECEDED BY "APPEAL" TO THE
COMMISSIONER.  THE MEANING OF THAT COMMAND, WHICH LATER BECAME R.S.
SEC. 3226 AND EVENTUALLY, AS AMENDED, 26 U.S.C. (SUPP. V) SEC. 7422(A),
WAS CONSIDERED IN CHEATHAM V. UNITED STATES, 92 U.S. 85.  THERE, IN
RESPONSE TO AN APPEAL, THE COMMISSIONER OF INTERNAL REVENUE HAD SET
ASIDE THE FIRST ASSESSMENT OF TAXPAYER'S 1864 INCOME TAXES AND DIRECTED
THE LOCAL ASSESSOR TO MAKE A SECOND ONE.  THE TAXPAYER PAID THE SECOND
ASSESSMENT AND SUED THE COLLECTOR FOR REFUND.  THE COURT HELD THAT BY
FAILING TO APPEAL FROM THE SECOND ASSESSMENT THE TAXPAYER FAILED TO
COMPLY WITH SECTION 19 AND HENCE HAD NO RIGHT OF ACTION.  IN THE COURSE
OF ITS OPINION THE COURT MADE THIS CAREFUL STATEMENT OF THE REMEDIES
THEN AVAILABLE TO TAXPAYERS WHO SOUGHT TO CONTEST THE CORRECTNESS OF
THEIR TAX: 

"SO ALSO, IN THE INTERNAL-REVENUE DEPARTMENT, THE STATUTE WHICH WE
HAVE COPIED ALLOWS APPEALS FROM THE ASSESSOR TO THE COMMISSIONER OF
INTERNAL REVENUE; AND, IF DISSATISFIED WITH HIS DECISION, ON PAYING THE
TAX THE PARTY CAN SUE THE COLLECTOR; AND, IF THE MONEY WAS WRONGFULLY
EXACTED, THE COURTS WILL GIVE HIM RELIEF BY A JUDGMENT, WHICH THE
UNITED STATES PLEDGES HERSELF TO PAY. 

     *         *         *         *   * 

"  ...  WHILE A FREE COURSE OF REMONSTRANCE AND APPEAL IS ALLOWED
WITHIN THE DEPARTMENTS BEFORE THE MONEY IS FINALLY EXACTED, THE GENERAL
GOVERNMENT HAS WISELY MADE THE PAYMENT OF THE TAX CLAIMED, WHETHER OF
CUSTOMS OR OF INTERNAL REVENUE, A CONDITION PRECEDENT TO A RESORT TO
THE COURTS BY THE PARTY AGAINST WHOM THE TAX IS ASSESSED  ...  .  IF
THE COMPLIANCE WITH THIS CONDITION THAT SUIT MUST BE BROUGHT WITHIN SIX
MONTHS OF THE COMMISSIONER'S DECISION REQUIRES THE PARTY AGGRIEVED TO
PAY THE MONEY, HE MUST DO IT.  HE CANNOT, AFTER THE DECISION IS
RENDERED AGAINST HIM, PROTRACT THE TIME WITHIN WHICH HE CAN CONTEST
THAT DECISION IN THE COURTS BY HIS OWN DELAY IN PAYING THE MONEY.  IT
IS ESSENTIAL TO THE HONOR AND ORDERLY CONDUCT OF THE GOVERNMENT THAT
ITS TAXES SHOULD BE PROMPTLY PAID, AND DRAWBACKS SPEEDILY ADJUSTED; AND
THE RULE PRESCRIBED IN THIS CLASS OF CASES IS NEITHER ARBITRARY NOR
UNREASONABLE  ...  . 

"THE OBJECTING PARTY CAN TAKE HIS APPEAL.  HE CAN, IF THE DECISION IS
DELAYED BEYOND TWELVE MONTHS, REST HIS CASE ON THAT DECISION; OR HE CAN
PAY THE AMOUNT CLAIMED, AND COMMENCE HIS SUIT AT ANY TIME WITHIN THAT
PERIOD.  SO, AFTER THE DECISION, HE CAN PAY AT ONCE, AND COMMENCE SUIT
WITHIN THE SIX MONTHS  ...  ."  (FN9) 

FROM THIS CAREFULLY CONSIDERED DICTUM IT IS UNMISTAKABLY CLEAR THAT
THE COURT UNDERSTOOD THE STATUTES OF THAT TIME TO REQUIRE FULL PAYMENT
OF AN ASSESSED TAX AS A CONDITION PRECEDENT TO THE RIGHT TO SUE THE
COLLECTOR FOR A REFUND.  THIS UNDERSTANDING OF THE STATUTORY SCHEME
APPEARS TO HAVE PREVAILED FOR THE SUCCEEDING FIFTY OR SIXTY YEARS.  IT
WAS NEVER SUGGESTED THAT THE ADDITION IN R.S. SEC. 3226 OF THE CLAUSE
BEGINNING "ANY SUM" EFFECTED ANY CHANGE.  THE CHEATHAM CASE WAS DECIDED
AFTER THAT ADDITION WAS MADE, AND IT GAVE NO INDICATION THAT THE
"CONDITION PRECEDENT" OF WHICH IT SPOKE HAD ALREADY BEEN ABROGATED BY
CONGRESS.  CONSISTENT WITH THAT UNDERSTANDING, THERE DOES NOT APPEAR TO
BE A SINGLE CASE BEFORE 1940 IN WHICH A TAXPAYER ATTEMPTED A SUIT FOR
REFUND OF INCOME TAXES WITHOUT PAYING THE FULL AMOUNT THE GOVERNMENT
ALLEGED TO BE DUE.  COURT OPINIONS THAT TOOK OCCASION TO COMMENT ON THE
EXTENT OF PAYMENT ARE CONSISTENT WITH THE CHEATHAM DECLARATION, (FN10)
AND THAT CASE HAS CONTINUED TO BE CITED WITH APPROVAL TO THE PRESENT
DAY.  (FN11)  SUCH WAS THE UNDERSTANDING OF THE NECESSITY FOR FULL
PAYMENT IN THE SUIT AGAINST THE COLLECTOR. 

SINCE THE STATUTE NOW UNDER CONSIDERATION, 28 U.S.C. SEC. 1346(A)(1),
EMPLOYS LANGUAGE IDENTICAL TO THAT IN THE STATUTE UNDER WHICH THE FULL
PAYMENT UNDERSTANDING DEVELOPED, R.S. SEC. 3226, A CONSTRUCTION
REQUIRING FULL PAYMENT WOULD APPEAR TO BE MORE CONSISTENT WITH THE
ESTABLISHED MEANING OF THE STATUTORY LANGUAGE.  FURTHERMORE, THE
SITUATION WITH RESPECT TO TAX SUITS AGAINST THE UNITED STATES AT THE
TIME 28 U.S.C. SEC. 1346(A)(1) WAS ENACTED, THE EXPRESS PURPOSE OF ITS
ENACTMENT, AND SUBSEQUENT EXPRESSIONS OF CONGRESSIONAL INTENT ALL
SUGGEST THAT THE PRINCIPLE OF FULL PAYMENT WAS TO BE PRESERVED. 

THE JURISDICTIONAL PROVISION THAT IS NOW 28 U.S.C. SEC. 1346(A)(1)
WAS FIRST ENACTED IN SECTION 1310(C) OF THE REVENUE ACT OF 1921. 
(FN12)  AT THAT TIME THE UNITED STATES WAS ALREADY SUABLE IN THE
DISTRICT COURTS.  SINCE 1887 THE TUCKER ACT HAD ALLOWED SUIT AGAINST
THE UNITED STATES FOR CLAIMS LESS THAN $10,000 "FOUNDED UPON  ...  ANY
LAW OF CONGRESS  ...  ," (FN13) AND THAT LANGUAGE INCLUDED SUITS TO
OBTAIN REFUND OF INCOME TAXES.  UNITED STATES V. EMERY, BIRD, THAYER
REALTY CO., 237 U.S. 28.  SINCE R.S. SEC.  3226 WAS CAST IN THE
BROADEST OF TERMS, ITS REQUIREMENT THAT REFUND SUITS BE PRECEDED BY AN
"APPEAL" TO THE COMMISSIONER CLEARLY APPLIED TO THE TUCKER ACT CASES,
UNITED STATES V. MICHEL, 282 U.S. 656, AND THE RELATED REQUIREMENT THAT
FULL PAYMENT MUST BE MADE PRIOR TO SUIT SEEMS TO HAVE BEEN ASSUMED TO
BE EQUALLY APPLICABLE.  FOR AMOUNTS IN EXCESS OF THE $10,000 TUCKER ACT
LIMITATION THE TAXPAYER COULD INVOKE HIS OLD REMEDY AGAINST THE
COLLECTOR. 

THE COMPLEMENTARY NATURE OF THE TWO DISTRICT COURT REMEDIES WAS
IMPAIRED WHEN THIS COURT RE-EMPHASIZED THE RULE REQUIRING THE COLLECTOR
TO BE SUED PERSONALLY.  A SUIT AGAINST THE OFFICE OR THE SUCCESSOR IN
OFFICE OF A DECEASED COLLECTOR COULD NOT BE MAINTAINED.  SMIETANKA V.
INDIANA STEEL CO., 257 U.S. 1 (1921).  SENATOR JONES OF NEW MEXICO
INTERRUPTED FLOOR DEBATE ON THE REVENUE ACT OF 1921 TO CALL ATTENTION
TO THIS DECISION.  IN HIS VIEW IT MEANT THAT WHEN THE PARTICULAR
COLLECTOR WAS DEAD A TAXPAYER SUING FOR MORE THAN $10,000 HAD TO BRING
SUIT IN THE COURT OF CLAIMS.  IN ADDITION TO THE EXTRA EXPENSE AND
INCONVENIENCE OF LITIGATING IN WASHINGTON, A COURT OF CLAIMS JUDGMENT
CARRIED NO INTEREST.  THE SENATOR PROPOSED AN AMENDMENT, STATING: 

"WHAT IS HERE PROPOSED IS THAT WE SHALL REMEDY THAT SITUATION BY
PROVIDING THAT WHERE THE COLLECTOR TO WHOM THE REVENUE WAS PAID HAS
DIED THEN THE CLAIMANT MAY SUE THE UNITED STATES.  IT SIMPLY BRINGS
ABOUT AN EQUITABLE SITUATION AND PREVENTS THE TAXPAYER FROM HAVING TO
SUFFER THE HARDSHIPS WHICH WOULD BE BROUGHT UPON HIM SIMPLY THROUGH THE
ACCIDENT OF THE DEATH OF THE COLLECTOR TO WHOM HE PAID THE MONEY.  I
OFFER THE AMENDMENT FOR THE PURPOSE OF REMEDYING THAT SITUATION." 
(FN14) 

THE AMENDMENT, WHICH WAS ACCEPTED WITHOUT FURTHER COMMENT, CONFERRED
JURISDICTION ON THE DISTRICT COURT: 

"CONCURRENT WITH THE COURT OF CLAIMS, OF ANY SUIT OR PROCEEDING,
COMMENCED AFTER THE PASSAGE OF THE REVENUE ACT OF 1921, FOR THE
RECOVERY OF ANY INTERNAL-REVENUE TAX ALLEGED TO HAVE BEEN ERRONEOUSLY
OR ILLEGALLY ASSESSED OR COLLECTED, OR OF ANY PENALTY CLAIMED TO HAVE
BEEN COLLECTED WITHOUT AUTHORITY OR ANY SUM ALLEGED TO HAVE BEEN
EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED UNDER THE INTERNAL
REVENUE LAWS, EVEN IF THE CLAIM EXCEEDS $10,000, IF THE COLLECTOR OF
INTERNAL REVENUE BY WHOM SUCH TAX, PENALTY, OR SUCH WAS COLLECTED IS
DEAD AT THE TIME SUCH SUIT OR PROCEEDING IS COMMENCED."  (FN15) 

THE AMENDMENT'S NARROW-STATED PURPOSE REFUTES ANY SUGGESTION THAT
CONGRESS INTENDED FURTHER TO EXPAND OR EVEN TO RESTATE THE JURISDICTION
OF THE DISTRICT COURT IN REFUND SUITS BROUGHT AGAINST THE UNITED
STATES.  AS WE HAVE SEEN, THE DISTRICT COURT ALREADY HAD SUCH
JURISDICTION UNDER THE TUCKER ACT, AND THERE IS NO INDICATION THAT
CONGRESS INTENDED ANY CHANGE IN THE TERMS ON WHICH THAT ACTION WAS MADE
AVAILABLE OTHER THAN THE CHANGE THAT WAS CLEARLY SET FORTH.  THE
STATUTE THAT IS NOW 28 U.S.C. SEC. 1346(A)(1) WAS ENACTED MERELY TO
REMOVE THE JURISDICTIONAL AMOUNT LIMITATION OF THE TUCKER ACT IN THE
SPECIAL SITUATION WHERE THE COLLECTOR COULD NOT BE SUED.  SEE LOWE
BROS. CO. V. UNITED STATES, 304 U.S. 302, 305.  THE HOUSE CONFERENCE
REPORT AND A CONTEMPORARY TREASURY DEPARTMENT DECLARATION CONFIRM THIS
VIEW OF THE STATUTE'S EFFECT.  (FN16) 

THE SIMILARITY OF ESSENTIAL LANGUAGE LEAVES NO DOUBT THAT THE TERMS
OF THE JURISDICTIONAL PROVISION WERE COPIED FROM THE CLAIM-FOR-REFUND
STATUTE, R.S. SEC. 3226, AS AMENDED BY SECTION 1318 OF THE REVENUE ACT
OF 1921.  (FN17)  THE FACT THAT THIS LANGUAGE HAD FOR MANY YEARS BEEN
CONSIDERED TO REQUIRE FULL PAYMENT BEFORE SUING THE COLLECTOR, AND THE
FACT THAT THE AVOWED PURPOSE OF THE 1921 AMENDMENT WAS MERELY TO CURE
AN INADEQUACY IN THE SUIT AGAINST THE COLLECTOR, COMBINE AS PERSUASIVE
INDICATIONS THAT NO CHANGE WAS INTENDED IN THE FULL-PAYMENT PRINCIPLE
DECLARED IN CHEATHAM V. UNITED STATES, SUPRA.    WHEN CONGRESS CREATED
THE BOARD OF TAX APPEALS IN 1924, (FN18) IT DEMONSTRATED A CLEAR
UNDERSTANDING THAT REFUND SUITS COULD ONLY BE MAINTAINED UPON FULL
PAYMENT OF THE TAX ALLEGED TO BE DUE.  THE HOUSE COMMITTEE PROPOSING
THE BILL EXPLAINED ITS PURPOSE AS FOLLOWS:    "THE COMMITTEE RECOMMENDS
THE ESTABLISHMENT OF A BOARD OF TAX APPEALS TO WHICH A TAXPAYER MAY
APPEAL PRIOR TO THE PAYMENT OF AN ADDITIONAL ASSESSMENT OF INCOME,
EXCESS-PROFITS, WAR-PROFITS, OR ESTATE TAXES.  ALTHOUGH A TAXPAYER MAY,
AFTER PAYMENT OF HIS TAX, BRING SUIT FOR THE RECOVERY THEREOF AND THUS
SECURE A JUDICIAL DETERMINATION OF THE QUESTIONS INVOLVED, HE CAN NOT,
IN VIEW OF SECTION 3224 OF THE REVISED STATUTES, WHICH PROHIBITS SUITS
TO ENJOIN THE COLLECTION OF TAXES, SECURE SUCH A DETERMINATION PRIOR TO
THE PAYMENT OF THE TAX.  THE RIGHT OF APPEAL AFTER PAYMENT OF THE TAX
IS AN INCOMPLETE REMEDY, AND DOES LITTLE TO REMOVE THE HARDSHIP
OCCASIONED BY AN INCORRECT ASSESSMENT.  THE PAYMENT OF A LARGE
ADDITIONAL TAX ON INCOME RECEIVED SEVERAL YEARS PREVIOUS AND WHICH MAY
HAVE, SINCE ITS RECEIPT, BEEN EITHER WIPED OUT BY SUBSEQUENT LOSSES,
INVESTED IN NON-LIQUID ASSETS, OR SPENT, SOMETIMES FORCES TAXPAYERS
INTO BANKRUPTCY, AND OFTEN CAUSES GREAT FINANCIAL HARDSHIP AND
SACRIFICE.  THESE RESULTS ARE NOT REMEDIED BY PERMITTING THE TAXPAYER
TO SUE FOR THE RECOVERY OF THE TAX AFTER THIS PAYMENT.  HE IS ENTITLED
TO AN APPEAL AND TO A DETERMINATION OF HIS LIABILITY FOR THE TAX PRIOR
TO ITS PAYMENT."  (FN19) 

PETITIONER ARGUES THAT THE "HARDSHIP" THE BOARD OF TAX APPEALS WAS
CREATED TO ALLEVIATE WAS NOT THE TAXPAYER'S INABILITY TO SUE WITHOUT
PAYING THE WHOLE TAX - FOR PETITIONER ERRONEOUSLY CONCLUDES THAT THE
1921 AMENDMENT CONFERRED THAT RIGHT - BUT THE GOVERNMENT'S POWER TO
COLLECT THE BALANCE DUE WHILE A REFUND SUIT WAS IN PROGRESS.  BUT THE
COMMITTEE REPORT QUOTED ABOVE CLEARLY DEMONSTRATES THAT THE HARDSHIP
ABOUT WHICH THE CONGRESS WAS CONCERNED WAS THE HARDSHIP OF PRE
LITIGATION PAYMENT, NOT POST-LITIGATION COLLECTION.  OLD COLONY TRUST
CO. V. COMMISSIONER OF INTERNAL REVENUE, 279 U.S. 716, 721.  (FN20) 

THE FINAL STEP IN THE EVOLVEMENT OF 28 U.S.C. SEC. 1346(A)(1) TOOK
PLACE IN THE ACT OF JULY 30, 1954, (FN21) WHICH REMOVED THE $10,000
JURISDICTIONAL LIMITATION AND ELIMINATED THE CONDITION ABOUT THE
COLLECTOR BEING DEAD OR OUT OF OFFICE.  FAR FROM INDICATING AN INTENT
TO ALLOW SUIT WITHOUT FULL PAYMENT OF THE TAX DUE, THE LEGISLATIVE
HISTORY OF THAT AMENDMENT SHOWS A CLEAR UNDERSTANDING OF THE CHEATHAM
REQUIREMENT, AND DEMONSTRATES A NARROW PURPOSE IN NO WAY INCONSISTENT
WITH THE REQUIREMENT.   THE HOUSE REPORT STATES: 

"THE PURPOSE OF THIS BILL IS TO PERMIT TAXPAYERS A GREATER
OPPORTUNITY TO SUE THE UNITED STATES IN THE DISTRICT COURT OF THEIR OWN
RESIDENCE TO RECOVER TAXES WHICH THEY FEEL HAVE BEEN WRONGFULLY
COLLECTED.  THIS IS DONE BY REMOVING THE JURISDICTIONAL LIMITATION OF
$10,000 NOW IMPOSED ON SUCH SUITS."  (FN22) 

IN EXPLAINING THE PRESENT STATE OF THE LAW THE REPORT GOES ON TO
POINT OUT THAT A TAXPAYER MAY CONTEST A DEFICIENCY ASSESSMENT BY A
PETITION IN THE TAX COURT.  "THE TAXPAYER MAY, HOWEVER," THE REPORT
CONTINUES, "ELECT TO PAY HIS TAX AND THEREAFTER BRING SUIT TO RECOVER
THE AMOUNT CLAIMED TO HAVE BEEN ILLEGALLY EXACTED."  (FN23) 

THE FOREGOING STUDY OF THE LEGISLATIVE HISTORY OF 28 U.S.C. SEC.
1346(A)(1) AND RELATED STATUTES LEAVES NO ROOM FOR CONTENTION THAT
THEIR BROAD TERMS WERE INTENDED TO ALTER IN ANY WAY THE CHEATHAM
PRINCIPLE OF "PAY FIRST AND LITIGATE LATER."  (FN24)  FOR MANY YEARS
THAT PRINCIPLE HAS BEEN REINFORCED BY THE RULE THAT NO SUIT CAN BE
MAINTAINED FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR COLLECTION
OF ANY TAX.  (FN25) MORE RECENTLY, CONGRESS TOOK CARE TO EXCEPT FROM
THE OPERATION OF THE FEDERAL DECLARATORY JUDGMENTS ACT ANY
CONTROVERSIES "WITH RESPECT TO FEDERAL TAXES."  (FN26)  TO AMELIORATE
THE HARDSHIP PRODUCED BY THESE REQUIREMENTS CONGRESS CREATED A SPECIAL
COURT WHERE TAX QUESTIONS COULD BE ADJUDICATED IN ADVANCE OF ANY
PAYMENT.  BUT THERE IS NO INDICATION OF ANY INTENT TO CREATE THE HYBRID
REMEDY FOR WHICH PETITIONER CONTENDS. 

IT IS SUGGESTED THAT A PART-PAYMENT REMEDY IS NECESSARY FOR THE
BENEFIT OF A TAXPAYER TOO POOR TO PAY THE FULL AMOUNT OF THE TAX.  SUCH
AN INDIVIDUAL IS FREE TO LITIGATE IN THE TAX COURT WITHOUT ANY ADVANCE
PAYMENT.  WHERE TIME TO PETITION THAT COURT HAS EXPIRED, OR WHERE FOR
SOME OTHER REASON A SUIT IN THE DISTRICT COURT SEEMS MORE DESIRABLE,
THE REQUIREMENT OF FULL PAYMENT MAY IN SOME INSTANCES WORK A HARDSHIP. 
BUT SINCE ANY HARDSHIP WOULD GROW OUT OF AN OPINION WHOSE EFFECT
CONGRESS IN SUCCESSIVE STATUTORY REVISIONS HAS MADE NO ATTEMPT TO
ALTER, IF ANY AMELIORATION IS REQUIRED IT IS NOW A MATTER FOR CONGRESS,
NOT THIS COURT. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  SEE ALSO SUHR V. UNITED STATES, 18 F.2D 81 (C.A. 3D CIR.). BUT
CF. SIRIAN LAMP CO. V. MANNING, 123 F.2D 776 (C.A. 3D CIR.). 

FN2  SEE ALSO SIRIAN LAMP CO. V. MANNING, 123 F.2D 776 (C.A. 3D
CIR.); COATES V. UNITED STATES, 111 F.2D 609 (C.A.2D CIR.).  BUT CF.
BENDHEIM V. COMMISSIONER, 214 F.2D 26, 28 (C.A.2D CIR.); ELBERT V.
JOHNSON, 164 F.2D 421, 423-424 (C.A.2D CIR.). 

FN3  42 STAT. 311. 

FN4  26 U.S.C. (SUPP. V) SEC. 7422(A):  "NO SUIT OR PROCEEDING SHALL
BE MAINTAINED IN ANY COURT FOR THE RECOVERY OF ANY INTERNAL REVENUE TAX
ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED, OR
OF ANY PENALTY CLAIMED TO HAVE BEEN COLLECTED WITHOUT AUTHORITY, OR OF
ANY SUM ALLEGED TO HAVE BEEN EXCESSIVE OR IN ANY MANNER WRONGFULLY
COLLECTED, UNTIL A CLAIM FOR REFUND OR CREDIT HAS BEEN DULY FILED WITH
THE SECRETARY OR HIS DELEGATE, ACCORDING TO THE PROVISIONS OF LAW IN
THAT REGARD, AND THE REGULATIONS OF THE SECRETARY OR HIS DELEGATE
ESTABLISHED IN PURSUANCE THEREOF."   R.S. SEC. 3226 IS QUOTED IN NOTE
7, INFRA. 

FN5  14 STAT. 152. 

FN6  14 STAT. 111. 

FN7  "NO SUIT SHALL BE MAINTAINED IN ANY COURT FOR THE RECOVERY OF
(1) ANY INTERNAL TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY
ASSESSED OR COLLECTED, OR OF (2) ANY PENALTY CLAIMED TO HAVE BEEN
COLLECTED WITHOUT AUTHORITY, OR OF (3) ANY SUM ALLEGED TO HAVE BEEN
EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED, UNTIL APPEAL SHALL
HAVE BEEN DULY MADE TO THE COMMISSIONER OF INTERNAL REVENUE  ...  ." 
R.S. SEC. 3226. 

THIS LANGUAGE IS PRACTICALLY IDENTICAL TO THAT USED BY THE 1866 ACT
IN GIVING THE COMMISSIONER HIS REFUNDING POWERS.  14 STAT. 111,
RESTATED IN R.S. SEC. 3220.  THE FIRST CATEGORY DATES BACK TO THE 1863
ACT.  12 STAT. 729.  THE THIRD CATEGORY WAS ADDED IN 1864.  13 STAT.
239.  THE 1866 ACT ROUNDED OUT THE THREE CATEGORIES BY ADDING THE
SECOND.  14 STAT. 111.  AN EXAMINATION OF THE LEGISLATIVE HISTORY
DISCLOSES NO INDICATION OF THE PURPOSE OF THESE SUCCESSIVE ADDITIONS. 

FN8  INITIALLY SUCH SUITS DEPENDED UPON DIVERSITY JURISDICTION. 
COLLECTOR V. HUBBARD, 12 WALL.  1.   LATER CONGRESS CREATED
JURISDICTION FOR "ALL CAUSES ARISING UNDER ANY LAW PROVIDING INTERNAL
REVENUE  ...  ."  R.S. SEC. 629 FOURTH.  WITH SLIGHT MODIFICATION THAT
PROVISION BECAME SECTION 24 FIFTH OF THE JUDICIAL CODE, 36 STAT. 1092,
AND IS PRESENTLY 28 U.S.C. SEC. 1340.  SEE LOWE BROS. CO. V. UNITED
STATES, 304 U.S. 302, 305. 

FN9  92 U.S., AT 88-89. 

FN10  KINGS COUNTY SAVINGS INSTITUTION V. BLAIR, 116 U.S. 200, 205
(1886)("NO CLAIM FOR THE REFUNDING OF TAXES CAN BE MADE ACCORDING TO
LAW AND THE REGULATIONS UNTIL AFTER THE TAXES HAVE BEEN PAID AND  ...
NO SUIT CAN BE MAINTAINED FOR TAXES ILLEGALLY COLLECTED UNLESS A CLAIM
THEREFOR HAS BEEN MADE WITHIN THE TIME PRESCRIBED BY THE LAW.");
POLLOCK V. FARMERS' LOAN & TRUST CO., 157 U.S. 429, 609
(1895)(DISSENTING OPINION)("THE SAME AUTHORITIES INCLUDING THE CHEATHAM
CASE HAVE ESTABLISHED THE RULE THAT THE PROPER COURSE, IN A CASE OF
ILLEGAL TAXATION, IS TO PAY THE TAX UNDER PROTEST OR WITH NOTICE OF
SUIT, AND THEN BRING AN ACTION AGAINST THE OFFICER WHO COLLECTED IT.");
DODGE V. OSBORN, 240 U.S. 118, 120 (1916)("THE REMEDY OF A SUIT TO
RECOVER BACK THE TAX AFTER IT IS PAID IS PROVIDED BY STATUTE  ...  .");
SEE NOTE 20, INFRA. 

FN11  E.G., PHILLIPS V. COMMISSIONER, 283 U.S. 589, 595; UNITED
STATES V. JEFFERSON ELECTRIC CO., 291 U.S. 386, 395-396; DOBSON V.
COMMISSIONER, 320 U.S. 489, 496. 

FN12  42 STAT. 311. 

FN13  24 STAT. 505, 28 U.S.C. SEC. 1346(A)(2). 

FN14  61 CONG. REC. 7506-7507. 

FN15  61 CONG. REC. 7507.  A SECOND AMENDMENT PROVIDED THAT INTEREST
SHOULD BE ALLOWED IN ANY JUDGMENT AGAINST THE UNITED STATES IN THESE
REFUND SUITS.  IBID.  A SPECIAL AMENDMENT IN 1925 ADDED THE RIGHT TO
BRING SUCH REFUND SUITS WHEN THE COLLECTOR "IS NOT IN OFFICE."  43
STAT. 972. 

FN16  H.R. REP. NO. 486, 67TH CONG., 1ST SESS. 57; II-1 CUM. BULL. 
224, 225. 

FN17  42 STAT. 314.  THE 1921 ACT SUBSTITUTED "CLAIM FOR REFUND OR
CREDIT" WHERE THE STATUTE FORMERLY REFERRED TO AN "APPEAL" TO THE
COMMISSIONER. 

FN18  43 STAT. 336. 

FN19  H.R. REP. NO. 179, 68TH CONG., 1ST SESS. 7.  THE SENATE
COMMITTEE ON FINANCE MADE A SIMILAR EXPLANATION.  S. REP. NO. 398, 68TH
CONG., 1ST SESS. 8. 

FN20  "THE BOARD OF TAX APPEALS  ...  WAS CREATED BY CONGRESS TO
PROVIDE TAXPAYERS AN OPPORTUNITY TO SECURE AN INDEPENDENT REVIEW OF THE
COMMISSIONER OF INTERNAL REVENUE'S DETERMINATION OF ADDITIONAL INCOME
AND ESTATE TAXES BY THE BOARD IN ADVANCE OF THEIR PAYING THE TAX FOUND
BY THE COMMISSIONER TO BE DUE.  BEFORE THE ACT OF 1924 THE TAXPAYER
COULD ONLY CONTEST THE COMMISSIONER'S DETERMINATION OF THE AMOUNT OF
THE TAX AFTER ITS PAYMENT." 

FN21  68 STAT. 589. 

FN22  H.R. REP. NO. 659, 83D CONG., 1ST SESS. 1. 

FN23  ID., AT 2.  AND SEE S. REP. NO. 115, 83D CONG., 1ST SESS. 

FN24  ALLEN V. REGENTS OF UNIVERSITY SYSTEM OF GA., 304 U.S. 439, 456
(CONCURRING OPINION). 

FN25  14 STAT. 475 (1867), RE-ENACTED IN R.S. SEC. 3224, PRESENTLY IN
FORCE AS 26 U.S.C. (SUPP. V) SEC. 7421. 

FN26  49 STAT. 1027, 28 U.S.C. SEC. 2201.  SEE S. REP. NO. 1240, 74TH
CONG., 1ST SESS. 11. 

MR. JUSTICE WHITTAKER, BELIEVING THAT BUSHMIAER V. UNITED STATES, 230
F.2D 146 (C.A. 8TH CIR.); SIRIAN LAMP CO. V. MANNING, 123 F.2D 776
(C.A. 3D CIR.), AND COATES V. UNITED STATES, 111 F.2D 609 (C.A.2D
CIR.); PROPERLY APPLY THE STATUTES INVOLVED AND SHOULD BE FOLLOWED,
WOULD REVERSE THE JUDGMENT BELOW. 
..END :




CITY OF CHICAGO V. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. 357 U.S. 77 


NO. 103.  ARGUED MARCH 5-6, 1958 - DECIDED JUNE 16, 1958* - 240 F.2D
930, AFFIRMED. 

*TOGETHER WITH NO. 104, PARMELEE TRANSPORTATION CO. ET AL. V.
ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET AL, ON APPEAL FROM, AND
PETITION FOR CERTIORARI TO, THE UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT, ARGUED MARCH 6, 1958. 


AFTER THE RAILROADS OPERATING IN AND OUT OF CHICAGO HAD FOR MANY YEARS
UTILIZED AN OLD MOTOR CARRIER TO TRANSFER INTERSTATE PASSENGERS AND
THEIR BAGGAGE BETWEEN DIFFERENT RAILROAD TERMINALS IN THE CITY, THE
RAILROADS TERMINATED THAT ARRANGEMENT AND ENGAGED A NEWLY ORGANIZED
MOTOR CARRIER TO PROVIDE THE SAME SERVICE.  THE CITY THEN AMENDED ITS
MUNICIPAL CODE SO AS TO REQUIRE, IN EFFECT, THAT THE OPERATOR OF ANY
NEW TRANSFER SERVICE MUST OBTAIN A CERTIFICATE OF CONVENIENCE AND
NECESSITY FROM THE COMMISSIONER OF LICENSES AND THE APPROVAL OF THE
CITY COUNCIL BEFORE IT COULD LAWFULLY TRANSFER ANY PASSENGERS FOR THE
RAILROADS.  THE NEW MOTOR CARRIER REFUSED TO APPLY FOR A CERTIFICATE OF
CONVENIENCE AND NECESSITY, AND THE CITY THREATENED TO ARREST AND FINE
ITS DRIVERS IF THEY OPERATED UNLICENSED VEHICLES.  THE NEW MOTOR
CARRIER AND THE RAILROADS THEN SUED IN A FEDERAL DISTRICT COURT FOR A
JUDGMENT DECLARING THE CITY ORDINANCE EITHER INAPPLICABLE OR INVALID. 
THE OLD MOTOR CARRIER INTERVENED AS A DEFENDANT.  THE DISTRICT COURT
DISMISSED THE COMPLAINT.  THE COURT OF APPEALS REVERSED, HOLDING THAT
THE CITY ORDINANCE, AS APPLIED, WAS REPUGNANT ON ITS FACE TO THE
CONSTITUTION AND LAWS OF THE UNITED STATES.  HELD:  THE JUDGMENT IS
AFFIRMED.  PP. 78-79. 

1.  THE JUDGMENT OF THE COURT OF APPEALS WAS A PROPER SUBJECT OF AN
APPEAL TO THIS COURT UNDER 28 U.S.C. SEC. 1254(2), SINCE IT HELD A
STATE STATUTE INVALID AS REPUGNANT TO THE CONSTITUTION AND LAWS OF THE
UNITED STATES, AND IT WAS A "FINAL" JUDGMENT WITHIN THE MEANING OF THAT

2.  THE OLD MOTOR CARRIER HAD STANDING TO SECURE REVIEW OF THE
JUDGMENT BELOW BY APPEAL, SINCE THE CASE INVOLVED AN ACTUAL CONTROVERSY
AND IT HAD A DIRECT AND SUBSTANTIAL PERSONAL INTEREST IN THE OUTCOME. 
PP. 83-84. 

3.  THERE BEING NO AMBIGUITY IN THE CITY ORDINANCE AND NO DOUBT THAT
IT APPLIED TO THE NEW MOTOR CARRIER, THE COURTS BELOW PROPERLY PASSED
UPON ITS VALIDITY WITHOUT AWAITING ITS INTERPRETATION BY THE STATE
COURTS.  P. 84. 

4.  THE CITY ORDINANCE, AS APPLIED TO THE NEW MOTOR CARRIER, IS
REPUGNANT ON ITS FACE TO THE CONSTITUTION AND LAWS OF THE UNITED
STATES, BECAUSE THE CITY HAS NO POWER TO DECIDE WHETHER THE NEW MOTOR
CARRIER CAN OPERATE A TRANSFER SERVICE BETWEEN TERMINALS FOR THE
RAILROADS, WHICH IS AN INTEGRAL PART OF INTERSTATE RAILROAD
TRANSPORTATION AUTHORIZED AND SUBJECT TO REGULATION UNDER THE
INTERSTATE COMMERCE ACT.  PP. 84-89. 

5.  SINCE THE CITY ORDINANCE IS COMPLETELY INVALID INSOFAR AS IT
APPLIES TO THE NEW MOTOR CARRIER, THAT COMPANY WAS NOT OBLIGATED TO
APPLY FOR A CERTIFICATE OF CONVENIENCE AND NECESSITY AND SUBMIT TO
ADMINSTRATIVE PROCEDURES INCIDENT THERETO BEFORE BRINGING THIS ACTION. 
P. 89. 

CITY OF CHICAGO V. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

CHICAGO IS ONE OF THE NATION'S GREAT RAIL CENTERS.  EACH DAY
THOUSANDS OF RAILROAD PASSENGERS TRAVEL THROUGH THAT CITY ON CONTINUOUS
JOURNEYS FROM ONE STATE TO ANOTHER.  SINCE THE LINES OF ALL RAILROADS
WHICH CARRY PASSENGERS INTO AND OUT OF CHICAGO COME TO AN END IN ONE OF
THAT CITY'S EIGHT TERMINALS, THROUGH PASSENGERS FREQUENTLY ARRIVE AT A
STATION DIFFERENT FROM THE ONE WHERE THEY ARE TO BOARD THEIR OUTGOING
TRAIN AND MUST TRANSFER WITH THEIR BAGGAGE IN ORDER TO CONTINUE THEIR
TRIP.  BECAUSE OF THE SERIOUS PROBLEMS OF SCHEDULING AND PASSENGER
CONVENIENCE INVOLVED IN THIS INTERCHANGE, THE RAILROADS, AS A GROUP,
HAVE LONG PROVIDED FOR THE TRANSFER OF THROUGH PASSENGERS FROM ONE
STATION TO ANOTHER BY A SYSTEMATIC AND HIGHLY ORGANIZED MOTOR CARRIER
OPERATION.  GENERALLY THE PASSENGERS RECEIVE A COUPON COVERING THIS
TRANSFER SERVICE, WITHOUT SPECIAL CHARGE, AS PART OF THEIR THROUGH
TICKET. 

FOR MANY YEARS THE RAILROADS HAD AN ARRANGEMENT WITH PARMELEE
TRANSPORTATION COMPANY UNDER WHICH IT CARRIED THROUGH PASSENGERS
BETWEEN STATIONS.  APPARENTLY FINDING ITS SERVICE NO LONGER DESIRABLE,
THE RAILROADS NOTIFIED PARMELEE IN JUNE 1955 THAT THEY WOULD
DISCONTINUE USING ITS TRANSFER VEHICLES AS OF OCTOBER 1, 1955. 
SUBSEQUENTLY THEY ENGAGED RAILROAD TRANSFER SERVICE, A CORPORATION
SPECIALLY ORGANIZED AT THEIR REQUEST FOR THAT PURPOSE, AS THEIR
EXCLUSIVE TRANSFER AGENT FOR A FIVE-YEAR PERIOD COMMENCING WITH THE
TERMINATION OF PARMELEE'S SERVICE. 

AT THE TIME THE RAILROADS GAVE PARMELEE THEIR NOTICE THE CITY OF
CHICAGO HAD IN EFFECT A DETAILED PLAN FOR THE REGULATION AND LICENSING
OF PUBLIC PASSENGER VEHICLES FOR HIRE.  AMONG OTHER THINGS, OPERATION
OF ANY PUBLIC PASSENGER VEHICLE, INCLUDING A VEHICLE ENGAGED IN THE
TRANSFER OF PASSENGERS BETWEEN RAILROAD STATIONS, WAS PROHIBITED UNLESS
IT HAD BEEN LICENSED BY THE CITY.  ANY PERSON WHO OPERATED ONE OF THESE
VEHICLES WITHOUT A LICENSE WAS SUBJECT TO ARREST AND PUNISHMENT. 

AFTER THE RAILROADS ANNOUNCED THEY INTENDED TO USE THE FACILITIES OF
RAILROAD TRANSFER SERVICE INSTEAD OF THOSE OF PARMELEE, THE CITY
COUNCIL PROCEEDED TO AMEND THE MUNICIPAL CODE SO AS TO EFFECT CERTAIN
IMPORTANT CHANGES WITH REGARD TO THE LICENSING OF TRANSFER VEHICLES.  A
NEW SECTION, 28-31.1, WAS ADDED.  IN SUBSTANCE, IT PROVIDED THAT NO
LICENSE FOR A TRANSFER VEHICLE WOULD ISSUE UNLESS THE CITY COMMISSIONER
OF LICENSES FIRST DETERMINED THAT PUBLIC CONVENIENCE AND NECESSITY
REQUIRED ADDITIONAL INTERTERMINAL SERVICE.  IN THAT EVENT, THE CITY
COUNCIL RESERVED FINAL DISCRETION TO DETERMINE HOW MANY, IF ANY, NEW
LICENSES WERE TO BE ISSUED.  IN MAKING HIS DETERMINATION THE
COMMISSIONER WAS AUTHORIZED TO CONSIDER PUBLIC DEMAND FOR THE PROPOSED
ADDITIONAL TRANSFER SERVICE, ITS ECONOMIC FEASIBILITY, PUBLIC SAFETY
AND, GENERALLY, ANY OTHER FACTS HE MIGHT THINK RELEVANT.  (FN1)  IF
SEC. 28-31.1 VALIDLY APPLIED TO RAILROAD TRANSFER SERVICE THAT COMPANY
WAS REQUIRED TO SECURE A CERTIFICATE OF CONVENIENCE AND NECESSITY FROM
THE COMMISSIONER PLUS THE APPROVAL OF THE CITY COUNCIL BEFORE IT COULD
LAWFULLY TRANSFER ANY PASSENGERS FOR THE RAILROADS.  ON THE OTHER HAND,
PARMELEE WAS PERMITTED TO CONTINUE OPERATING WITHOUT LEAVE FROM THE
CITY SINCE AN EXCEPTION IN SEC. 28-31.1 PROVIDED THAT NO CERTIFICATE
WAS NECESSARY FOR THE RENEWAL OF AN EXISTING LICENSE.  PARMELEE'S
VEHICLES WERE ALL LICENSED, OF COURSE, AT THE TIME THE SECTION BECAME
EFFECTIVE. 

AS SCHEDULED, TRANSFER BEGAN TO CARRY PASSENGERS BETWEEN STATIONS ON
OCTOBER 1, 1955.  (FN2) HOWEVER, IT REFUSED TO APPLY FOR A CERTIFICATE
OF CONVENIENCE AND NECESSITY, TAKING THE POSITION THAT SEC. 28.31.1 WAS
EITHER INAPPLICABLE TO ITS VEHICLES OR, IF APPLICABLE, INVALID.  THE
CITY REJECTED THIS CONTENTION AND THREATENED TO ARREST AND FINE
TRANSFER'S DRIVERS IF THEY OPERATED UNLICENSED VEHICLES.  TRANSFER AND
THE RAILROADS THEN FILED THIS SUIT IN UNITED STATES DISTRICT COURT
ASKING FOR A JUDGMENT DECLARING SEC. 28-31.1 EITHER INAPPLICABLE OR
INVALID.  THE COMPLAINT ASSERTED THAT THE CITY'S REQUIREMENT OF A
CERTIFICATE OF CONVENIENCE AND NECESSITY WAS INCONSISTENT WITH THE
PROVISIONS OF THE INTERSTATE COMMERCE ACT AS WELL AS THE COMMERCE
CLAUSE OF THE CONSTITUTION INSOFAR AS IT APPLIED TO VEHICLES
TRANSFERRING INTERSTATE PASSENGERS FROM ONE RAILROAD STATION TO ANOTHER
UNDER AGREEMENT WITH THE RAILROADS.  THE CITY FILED NO ANSWER BUT MOVED
FOR A SUMMARY JUDGMENT.  PARMELEE WAS PERMITTED TO INTERVENE AS A
DEFENDANT. 

THE DISTRICT JUDGE, POINTING OUT THAT THERE WERE NO GENUINE ISSUES OF
FACT, GRANTED THE CITY'S MOTION AND DISMISSED THE COMPLAINT.  BUT THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED.  240 F.2D 930.  IT
AGREED WITH THE DISTRICT COURT THAT SEC. 28-31.1 APPLIED TO TRANSFER'S
OPERATION, BUT HELD THAT THE SECTION AS SO APPLIED WAS REPUGNANT ON ITS
FACE TO THE CONSTITUTION AND LAWS OF THE UNITED STATES.  WE GRANTED THE
CITY'S PETITION FOR CERTIORARI, 353 U.S. 972, BUT POSTPONED ASSUMING
JURISDICTION ON AN APPEAL BY PARMELEE UNTIL FURTHER CONSIDERATION AT
THE HEARING ON THE MERITS, 353 U.S. 971.  COUNSEL FOR PARMELEE AND
TRANSFER WERE ASKED TO DISCUSS THE FOLLOWING JURISDICTIONAL QUESTIONS: 

"1.  WHETHER PARMELEE TRANSPORTATION CO. HAS STANDING TO SEEK REVIEW
HERE ON APPEAL OR BY WRIT OF CERTIORARI. 

"2.  WHETHER THE JUDGMENT OF THE COURT OF APPEALS IS 'FINAL' SO AS TO
PERMIT REVIEW BY THE WAY OF APPEAL UNDER 28 U.S.C. SEC. 1254(2).  CF.
SLAKER V. O'CONNOR, 278 U.S. 188, 189; SOUTH CAROLINA ELECTRIC & GAS
CO. V. FLEMMING, 351 U.S. 901." 

FIRST.  THE JUDGMENT OF THE COURT OF APPEALS IS THE PROPER SUBJECT OF
AN APPEAL.  UNDER 28 U.S.C. SEC. 1254(2) THIS COURT MAY REVIEW CASES ON
APPEAL WHERE A COURT OF APPEALS HAS HELD A STATE STATUTE INVALID AS
REPUGNANT TO THE CONSTITUTION, TREATIES OR LAWS OF THE UNITED STATES. 
IN SLAKER V. O'CONNOR, 278 U.S. 188, 189, THE COURT CONSTRUED THE
SUBSTANTIALLY IDENTICAL PREDECESSOR OF SEC. 1254(2) (FN3) AS REQUIRING
A "FINAL" JUDGMENT IN A CASE BEFORE AN APPEAL COULD BE TAKEN.  THE
SLAKER CASE WAS FOLLOWED WITHOUT COMMENT, AS TO SEC. 1254(2) ITSELF, BY
THE PER CURIAM OPINION IN SOUTH CAROLINA ELECTRIC & GAS CO. V.
FLEMMING, 351 U.S. 901.  COUNSEL FOR PARMELEE, RELYING ON THE LANGUAGE
AND LEGISLATIVE HISTORY OF SEC. 1254(2) AND ITS PREDECESSOR, FORCEFULLY
ARGUE THAT THE REQUIREMENT OF FINALITY ANNOUNCED IN THE SLAKER CASE IS
ERRONEOUS AND SHOULD BE OVERRULED.  WE FIND IT UNNECESSARY HOWEVER TO
PASS ON THIS CONTENTION HERE BECAUSE WE ARE CONVINCED THAT THE JUDGMENT
BELOW WAS "FINAL" BY AN RELEVANT STANDARD. 

BY ITS DECISION THE COURT OF APPEALS RESOLVED ALL DISPUTED QUESTIONS
BETWEEN THE PARTIES.  FROM THE BEGINNING THE ONLY ISSUES IN THE CASE
WERE WHETHER SEC. 28-31.1 WAS APPLICABLE TO TRANSFER AND, IF
APPLICABLE, WHETHER THAT SECTION WAS CONSISTENT WITH FEDERAL LAW.  THE
COURT OF APPEALS HELD THE SECTION APPLIED TO TRANSFER BUT WAS
UNCONSTITUTIONAL.  THERE WAS NOTHING MORE TO LITIGATE; ALL THAT
REMAINED FOR THE DISTRICT COURT ON REMAND WAS TO FORMALLY ENTER
JUDGMENT FOR THE PLAINTIFF.  COMPARE POPE V. ATLANTIC COAST LINE R.
CO., 345 U.S. 379, 381-383. 

SECOND.  PARMELEE HAS STANDING TO SECURE REVIEW OF THE JUDGMENT BELOW
BY APPEAL.  IT IS ENOUGH, FOR PURPOSES OF STANDING, THAT WE HAVE AN
ACTUAL CONTROVERSY BEFORE US IN WHICH PARMELEE HAS A DIRECT AND
SUBSTANTIAL PERSONAL INTEREST IN THE OUTCOME.  UNDOUBTEDLY IT IS
AFFECTED ADVERSELY BY TRANSFER'S OPERATION.  PERMELEE CONTENDS THAT
THIS OPERATION IS PROHIBITED BY A VALID CITY ORDINANCE AND ASSERTS THE
RIGHT TO BE FREE FROM UNLAWFUL COMPETITION.  TRANSFER, ON THE OTHER
HAND, SUGGESTS THAT PARMELEE HAS NO STANDING BECAUSE THE CITY ORDINANCE
IS INVALID AND TRANSFER'S OPERATION IS LAWFUL.  IT ARGUES THAT A PARTY
HAS NO RIGHT TO COMPLAIN ABOUT LAWFUL COMPETITION, CITING ALABAMA POWER
CO. V. ICKES, 302 U.S. 464, AND TENNESSEE ELECTRIC POWER CO. V.
TENNESSEE VALLEY AUTHORITY, 306 U.S. 118.  WE DO NOT REGARD EITHER OF
THESE CASES AS CONTROLLING HERE.  IT SEEMS TO US THAT TRANSFER'S
ARGUMENT CONFUSES THE MERITS OF THE CONTROVERSY WITH THE STANDING OF
PARMELEE TO LITIGATE THEM.  CF. BELL V. HOOD, 327 U.S. 678.  PARMELEE'S
STANDING COULD HARDLY DEPEND ON WHETHER OR NOT IT IS EVENTUALLY HELD
THAT TRANSFER CAN LAWFULLY OPERATE WITHOUT A CERTIFICATE OF CONVENIENCE
AND NECESSITY.  (FN4) 

THIRD.  THERE IS STILL ANOTHER PRELIMINARY POINT WHICH MUST BE
DECIDED.  THE CITY ARGUES THAT THE COURTS BELOW SHOULD NOT HAVE PASSED
ON THE VALIDITY OF SEC. 28-31.1 UNTIL STATE COURTS HAD AUTHORITATIVELY
RULED THAT TRANSFER'S TERMINAL VEHICLES CAME WITHIN ITS PROVISIONS. 
THE CITY ASKS THAT WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND
REMAND TO THE DISTRICT COURT WITH DIRECTIONS TO HOLD THE CASE UNTIL
EFFORTS TO OBTAIN AN ADJUDICATION IN THE STATE COURTS HAVE BEEN
EXHAUSTED.  UNDER THE CIRCUMSTANCES WE DO NOT BELIEVE THIS PROCEDURE IS
WARRANTED. 

AFTER FULL ARGUMENT ON THAT POINT, BOTH THE DISTRICT COURT AND A
UNANIMOUS COURT OF APPEALS HELD THAT SEC. 28-31.1 APPLIED TO TRANSFER. 
THAT WAS THE POSITION OF THE CITY IN BOTH COURTS AND IT MADE NO MOVE
THERE TO HAVE THE MATTER REMITTED TO THE STATE COURTS.  AFTER REFERRING
TO THE PROVISIONS OF SEC. 28-31.1 THE CITY DECLARED IN ITS BRIEF IN THE
COURT OF APPEALS:  "A MORE ACCURATE DESCRIPTION OF THE BUSINESS ENGAGED
IN BY TRANSFER WOULD BE HARD TO FIND."  WE THINK THIS IS A FAIR
SUMMARIZATION.  WE SEE NO AMBIGUITY IN THE SECTION WHICH CALLS FOR
INTERPRETATION BY THE STATE COURTS.  CF. TOOMER V. WITSELL, 334 U.S.
385.  REMISSION TO THOSE COURTS WOULD INVOLVE SUBSTANTIAL DELAY AND
EXPENSE, AND THE CHANCE OF A RESULT DIFFERENT FROM THAT REACHED BELOW,
ON THE ISSUE OF APPLICABILITY, WOULD APPEAR TO BE SLIGHT. 

FOURTH.  WE AGREE WITH THE COURT OF APPEALS THAT SEC. 28-31.1 IS
INVALID INSOFAR AS IT REQUIRES TRANSFER TO SECURE A CERTIFICATE OF
CONVENIENCE AND NECESSITY BEFORE IT CAN OPERATE.  BY ITS TERMS SEC. 28
31.1 GIVES THE CITY COMMISSIONER OF LICENSES, AND ULTIMATELY THE CITY
COUNSEL ITSELF, VIRTUALLY UNLIMITED DISCRETION TO DETERMINE WHO MAY
TRANSFER INTERSTATE PASSENGERS AND BAGGAGE BETWEEN RAILROAD TERMINALS. 
ALTHOUGH COUNSEL FOR THE CITY DENIES THAT IT WILL USE THIS POWER TO
EXCLUDE PROPOSED TRANSFER OPERATIONS WHOLLY OR PRIMARILY BECAUSE OF
ECONOMIC CONSIDERATIONS (CF. BUCK V. KUYKENDALL, 267 U.S. 307), IT IS
CLEAR THAT THE CITY CLAIMS AT LEAST SOME POWER UNDER SEC. 28-31.1 TO
DECIDE WHETHER A MOTOR CARRIER MAY TRANSPORT PASSENGERS FROM ONE
STATION TO ANOTHER.  IN OUR JUDGMENT THE PROVISIONS OF THE INTERSTATE
COMMERCE ACT, 24 STAT. 379, AS AMENDED, 49 U.S.C. SEC. 1 ET SEQ.,
PRECLUDE THE CITY FROM EXERCISING ANY VETO POWER OVER SUCH TRANSFER
SERVICE WHEN PERFORMED BY THE RAILROADS OR BY THEIR CHOSEN AGENTS. 


"IT SHALL BE THE DUTY OF EVERY COMMON CARRIER SUBJECT TO THIS CHAPTER
...  TO ESTABLISH REASONABLE THROUGH ROUTES WITH OTHER SUCH CARRIERS
...  AND TO PROVIDE REASONABLE FACILITIES FOR OPERATING SUCH ROUTES AND
TO MAKE REASONABLE RULES AND REGULATIONS WITH RESPECT TO THEIR
OPERATION ...  ." 


"ALL CARRIERS SUBJECT TO THE PROVISIONS OF THIS CHAPTER SHALL,
ACCORDING TO THEIR RESPECTIVE POWERS, AFFORD ALL REASONABLE, PROPER,
AND EQUAL FACILITIES FOR THE INTERCHANGE OF TRAFFIC BETWEEN THEIR
RESPECTIVE LINES AND CONNECTING LINES, AND FOR THE RECEIVING,
FORWARDING, AND DELIVERING OF PASSENGERS OR PROPERTY TO AND FROM
CONNECTING LINES  ...  ." 

COMPLEMENTING THESE PROVISIONS, SEC. 15(3) SPECIFICALLY EMPOWERS THE
INTERSTATE COMMERCE COMMISSION TO ESTABLISH REASONABLE THROUGH ROUTES
WHENEVER NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST.  (FN5) 

AS WE UNDERSTAND THESE SECTIONS THEY NOT ONLY AUTHORIZE THE RAILROADS
TO TAKE ALL REASONABLE AND PROPER STEPS FOR THE TRANSFER OF PERSONS AND
PROPERTY BETWEEN THEIR CONNECTING LINES, BUT IMPOSE AFFIRMATIVE
OBLIGATIONS ON THEM IN THIS RESPECT.  SEE UNITED STATES V. PENNSYLVANIA
R. CO., 323 U.S. 612; CENTRAL TRANSFER CO. V. TERMINAL RAILROAD
ASSOCIATION OF ST. LOUIS, 288 U.S. 469, 473, N. 1.  ALTHOUGH THE
RAILROADS MAY NOT BE OBLIGATED TO FURNISH TRANSFER SERVICE BETWEEN
TERMINALS IN EVERY INSTANCE, IT SEEMS APPARENT THAT SUCH SERVICE WOULD
OFTEN BE NECESSARY IF THE STATUTORY REQUIREMENTS WERE TO BE OBSERVED. 
ON THIS BASIS THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT IT HAS
AUTHORITY TO REQUIRE MOTOR SERVICE BETWEEN TERMINALS.  SEE CARTAGE,
RAIL TO STEAMSHIP LINES AT NEW YORK, 269 I.C.C. 199.  HERE THE
RAILROADS HAVE FURNISHED TRANSFER FACILITIES FOR THE HEAVY FLOW OF
TRAFFIC BETWEEN THE NUMEROUS CHICAGO TERMINALS FOR MORE THAN A
CENTURY.  IT IS AGREED THAT TRANSPORTATION BY MOTOR VEHICLE IS NOW THE
ONLY PRACTICAL MEANS OF MOVING THIS TRAFFIC FROM TERMINAL TO TERMINAL. 
WE THINK THE TRANSFER SERVICE INVOLVED IS AT LEAST AUTHORIZED, IF NOT
ACTUALLY REQUIRED, UNDER THE ACT AS A REASONABLE AND PROPER FACILITY
FOR THE INTERCHANGE OF PASSENGERS AND THEIR BAGGAGE BETWEEN CONNECTING
LINES.    MOREOVER, SEC. 302(C) OF THE ACT PROVIDES THAT MOTOR VEHICLE
TRANSPORTATION BETWEEN TERMINALS, WHETHER PERFORMED BY A RAILROAD OR BY
AN AGENT OR CONTRACTOR OF ITS CHOOSING, SHALL BE REGARDED AS RAILROAD
TRANSPORTATION AND SHALL BE SUBJECT TO THE SAME COMPREHENSIVE SCHEME OF
REGULATION WHICH APPLIES TO SUCH TRANSPORTATION.  (FN6)  WHILE THE
INTERSTATE COMMERCE COMMISSION HAS NOT YET ADOPTED SPECIAL REGULATIONS
FOR INTERSTATION TRANSFER SERVICE IT OBVIOUSLY CAN DO SO AT ANY TIME
UNDER THIS SECTION.  IN THE MEANTIME MANY OF THE COMMISSION'S
REGULATIONS WHICH GENERALLY GOVERN RAILROAD TRANSPORTATION APPLY TO
THIS SERVICE.  AND EVEN WITHOUT COMMISSION ACTION A NUMBER OF THE
PROVISIONS OF THE INTERSTATE COMMERCE ACT ITSELF ARE SELF-EXECUTING IN
THEIR APPLICATION. 

THE VARIOUS PROVISIONS SET FORTH ABOVE MANIFEST A CONGRESSIONAL
POLICY TO PROVIDE FOR THE SMOOTH, CONTINUOUS AND EFFICIENT FLOW OF
RAILROAD TRAFFIC FROM STATE TO STATE SUBJECT TO FEDERAL REGULATION. 
IN OUR VIEW IT WOULD BE INCONSISTENT WITH THIS POLICY IF LOCAL
AUTHORITIES RETAINED THE POWER TO DECIDE WHETHER THE RAILROADS OR THEIR
AGENTS COULD ENGAGE IN THE INTERTERMINAL TRANSFER OF INTERSTATE
PASSENGERS.  WE BELIEVE THE ACT AUTHORIZES THE RAILROADS TO ENGAGE IN
THIS TRANSFER OPERATION THEMSELVES OR TO SELECT SUCH AGENTS AS THEY SEE
FIT FOR THAT PURPOSE WITHOUT LEAVE FROM LOCAL AUTHORITIES. 

NATIONAL RATHER THAN LOCAL CONTROL OF INTERSTATE RAILROAD
TRANSPORTATION HAS LONG BEEN THE POLICY OF CONGRESS.  IT IS NOT AT ALL
EXTRAORDINARY THAT CONGRESS SHOULD EXTEND FREEDOM FROM LOCAL RESTRAINTS
TO THE MOVEMENT OF INTERSTATE TRAFFIC BETWEEN RAILROAD TERMINALS. 
SERIOUS IMPEDIMENTS TO THE EFFICIENT AND UNINTERRUPTED FLOW OF THIS
TRAFFIC MIGHT WELL RESULT IF THE CITY COULD DENY THE RAILROADS THE
RIGHT TO TRANSFER PASSENGERS BY THEIR OWN VEHICLES OR BY THOSE OF THEIR
SELECTED AGENTS.  FOR EXAMPLE, THE RAILROADS HERE UNDOUBTEDLY HAVE A
BETTER UNDERSTANDING OF HOW TO HANDLE THE TRANSPORTATION PROBLEMS
INVOLVED IN EXPEDITIOUSLY MOVING THOUSANDS OF PASSENGERS FROM STATION
TO STATION EACH DAY THAN DO LOCAL OFFICIALS.  BECAUSE OF CLOSE TIME
SCHEDULES, THE GREAT VOLUME OF TRAFFIC AND ITS IRREGULAR EBB AND FLOW,
THE RAILROADS OBVIOUSLY NEED A COOPERATIVE AND DEPENDABLE TRANSFER
OPERATOR WITH SUITABLE EQUIPMENT WHO IS WILLING TO WORK IN CLOSE
HARMONY WITH THEM.  THE RAILROADS HAVE REJECTED AS UNSUITABLE THE ONLY
TRANSFER SERVICE NOW LICENSED TO OPERATE BY THE CITY.  IF LOCAL
OFFICIALS CAN PREVENT THEM FROM PROVIDING THIS SERVICE BY SOME OTHER
MEANS A BREAKDOWN IN THE ORGANIZED TRANSFER OF PASSENGERS COULD
RESULT.  AT A MINIMUM THEY WOULD BE FORCED TO DEAL ONCE AGAIN WITH THE
REJECTED OPERATOR.  MOREOVER, IT SEEMS CLEAR THAT IF THE CITY COULD
DENY A LICENSE TO ONE OPERATOR IT HAS THE POWER, AT LEAST SO FAR AS THE
INTERSTATE COMMERCE ACT IS CONCERNED, TO DENY A LICENSE TO ALL. 

WE ARE FULLY AWARE THAT USE OF LOCAL STREETS IS INVOLVED, BUT NO ONE
SUGGESTS THAT CONGRESS CANNOT REQUIRE THE CITY TO PERMIT INTERSTATE
COMMERCE TO PASS OVER THOSE STREETS.  OF COURSE THE CITY RETAINS
CONSIDERABLE AUTHORITY TO REGULATE HOW TRANSFER VEHICLES SHALL BE
OPERATED.  IT COULD HARDLY BE DENIED, FOR EXAMPLE, THAT SUCH VEHICLES
MUST OBEY TRAFFIC SIGNALS, SPEED LIMITS AND OTHER GENERAL SAFETY
REGULATIONS.  SIMILARLY THE CITY MAY REQUIRE REGISTRATION OF THESE
VEHICLES AND EXACT REASONABLE FEES FOR THEIR USE OF THE LOCAL STREETS. 
CF. FRY ROOFING CO. V. WOOD, 344 U.S. 157; CAPITOL GREYHOUND LINES V.
BRICE, 339 U.S. 542.  ALL WE HOLD HERE, AND ALL WE CONSTRUE THE COURT
OF APPEALS AS HOLDING, IS THAT THE CITY HAS NO POWER TO DECIDE WHETHER
TRANSFER CAN OPERATE A MOTOR VEHICLE SERVICE BETWEEN TERMINALS FOR THE
RAILROADS BECAUSE THIS SERVICE IS AN INTEGRAL PART OF INTERSTATE
RAILROAD TRANSPORTATION AUTHORIZED AND SUBJECT TO REGULATION UNDER THE
INTERSTATE COMMERCE ACT.  CF. CASTLE V. HAYES FREIGHT LINES, 348 U.S.
61. 

FIFTH.  SINCE WE HOLD THAT SEC. 28-31.1 IS COMPLETELY INVALID INSOFAR
AS IT APPLIES TO TRANSFER, THAT COMPANY WAS NOT OBLIGATED TO APPLY FOR
A CERTIFICATE OF CONVENIENCE AND NECESSITY AND SUBMIT TO THE
ADMINISTRATIVE PROCEDURES INCIDENT THERETO BEFORE BRINGING THIS
ACTION.  SEE SMITH V.CAHOON, 283 U.S. 553, 562; PUBLIC UTILITIES
COMMISSION OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, 539-540.  CF.
STAUB V. CITY OF BAXLEY, 355 U.S. 313, 319.  AFFIRMED. 

FN1  IN FULL, THE SECTION READ: 

"28-31.1  PUBLIC CONVENIENCE AND NECESSITY.  NO LICENSE FOR ANY
TERMINAL VEHICLE SHALL BE ISSUED EXCEPT IN THE ANNUAL RENEWAL OF SUCH
LICENSE OR UPON TRANSFER TO PERMIT REPLACEMENT OF A VEHICLE FOR THAT
LICENSED UNLESS, AFTER A PUBLIC HEARING HELD IN THE SAME MANNER AS
SPECIFIED FOR HEARINGS IN SECTION 28.22.1, THE COMMISSIONER SHALL
REPORT TO THE COUNCIL THAT PUBLIC CONVENIENCE AND NECESSITY REQUIRE
ADDITIONAL TERMINAL VEHICLE SERVICE AND SHALL RECOMMEND THE NUMBER OF
SUCH VEHICLE LICENSES WHICH MAY BE ISSUED. 

"IN DETERMINING WHETHER PUBLIC CONVENIENCE AND NECESSITY REQUIRE
ADDITIONAL TERMINAL VEHICLE SERVICE DUE CONSIDERATION SHALL BE GIVEN TO
THE FOLLOWING: 

"1.  THE PUBLIC DEMAND FOR SUCH SERVICE. 

"2.  THE EFFECT OF AN INCREASE IN THE NUMBER OF SUCH VEHICLES ON THE
SAFETY OF EXISTING VEHICULAR AND PEDESTRIAN TRAFFIC IN THE AREA OF
THEIR OPERATION. 

"3.  THE EFFECT OF AN INCREASE IN THE NUMBER OF SUCH VEHICLES UPON THE
ABILITY OF THE LICENSEE TO CONTINUE RENDERING THE REQUIRED SERVICE AT
REASONABLE FARES AND CHARGES TO PROVIDE REVENUE SUFFICIENT TO PAY FOR
ALL COSTS OF SUCH SERVICE, INCLUDING FAIR AND EQUITABLE WAGES AND
COMPENSATION FOR LICENSEE'S EMPLOYEES AND A FAIR RETURN ON THE
INVESTMENT IN PROPERTY DEVOTED TO SUCH SERVICE. 

"4.  ANY OTHER FACTS WHICH THE COMMISSIONER MAY DEEM RELEVANT. 

"IF THE COMMISSIONER SHALL REPORT THAT PUBLIC CONVENIENCE AND
NECESSITY REQUIRE ADDITIONAL TERMINAL VEHICLE SERVICE, THE COUNCIL, BY
ORDINANCE, MAY FIX THE MAXIMUM NUMBER OF TERMINAL VEHICLE LICENSES TO
BE ISSUED NOT TO EXCEED THE NUMBER RECOMMENDED BY THE COMMISSIONER." 
CHICAGO MUNICIPAL CODE, C. 28, SEC. 28-31.1. 

FN2  IN ACCORDANCE WITH ITS AGREEMENT WITH THE RAILROADS, TRANSFER'S
OPERATION IS LIMITED EXCLUSIVELY TO TRANSPORTING THROUGH PASSENGERS
FROM ONE RAILROAD STATION TO ANOTHER.  IT CARRIES NO OTHER PASSENGERS. 

FN3  SEC. 240(B) OF THE JUDICIARY ACT OF 1925, 43 STAT. 939. 

FN4  SINCE NO. 104 IS PROPERLY HERE ON APPEAL, THE PETITION FOR
CERTIORARI IN THAT CASE IS DENIED. 

FN5  SECTION 12 GENERALLY AUTHORIZES AND REQUIRES THE COMMISSION "TO
EXECUTE AND ENFORCE" ALL OF THE PROVISIONS OF THE ACT. 

FN6  IN PERTINENT PART, SEC. 302(C) READS: 

"NOTWITHSTANDING ANY PROVISION OF THIS SECTION OR OF SECTION 303 OF
THIS TITLE, THE PROVISIONS OF CHAPTER 8 OF THE ACT REGULATING MOTOR
CARRIERS  ...  SHALL NOT APPLY: 

"(1)  TO TRANSPORTATION BY MOTOR VEHICLE BY A CARRIER BY RAILROAD ...
INCIDENTAL TO TRANSPORTATION OR SERVICE SUBJECT TO REGULATION BY THE
INTERSTATE COMMERCE COMMISSION UNDER CHAPTER 1 OF THE ACT AS RAILROAD
TRANSPORTATION OR SERVICE  ...  IN THE PERFORMANCE WITHIN TERMINAL
AREAS OF TRANSFER, COLLECTION, OR DELIVERY SERVICES; BUT SUCH
TRANSPORTATION SHALL BE CONSIDERED TO BE AND SHALL BE REGULATED AS
TRANSPORTATION SUBJECT TO CHAPTER 1 OF THIS TITLE WHEN PERFORMED BY
SUCH CARRIER BY RAILROAD  ...  . 

"(2)  TO TRANSPORTATION BY MOTOR VEHICLE BY ANY PERSON (WHETHER AS
AGENT OR UNDER A CONTRACTUAL ARRANGEMENT) FOR A COMMON CARRIER BY
RAILROAD SUBJECT TO CHAPTER 1 OF THIS TITLE  ...  IN THE PERFORMANCE
WITHIN TERMINAL AREAS OF TRANSFER, COLLECTION, OR DELIVERY SERVICE; BUT
SUCH TRANSPORTATION SHALL BE CONSIDERED TO BE PERFORMED BY SUCH CARRIER
... AS PART OF, AND SHALL BE REGULATED IN THE SAME MANNER AS, THE
TRANSPORTATION BY RAILROAD  ...  TO WHICH SUCH SERVICES ARE
INCIDENTAL."  49 U.S.C. SEC. 302(C). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

IN MY OPINION THE COURT HAS ACTED PREMATURELY IN STRIKING DOWN THIS
CHICAGO ORDINANCE AS IT RELATES TO TRANSFER.  I ACCEPT THE PREMISE THAT
THE RAILROADS HAVE THE RIGHT TO CHOOSE WHOM THEY PLEASE TO PERFORM THE
TRANSFER SERVICES, SUBJECT ONLY TO THE CITY'S RIGHT TO REGULATE HOW
TRANSFER VEHICLES SHALL BE OPERATED.  NEVERTHELESS, THE VALIDITY OF THE
ORDINANCE SHOULD NOT BE DETERMINED UNTIL TRANSFER HAS APPLIED TO
CHICAGO FOR A "TERMINAL" LICENSE AND THE LOCAL AUTHORITIES HAVE HAD AN
OPPORTUNITY TO ACT ON THE APPLICATION.  NOT UNTIL THEN WILL IT BE KNOWN
WHETHER THE ORDINANCE, AS IT MAY BE APPLIED TO TRANSFER'S OPERATIONS,
TRESPASSES UPON PARAMOUNT FEDERAL CONCERNS.  PROPER REGARD FOR THE
CITY'S LEGITIMATE INTERESTS IN ENFORCING THIS LOCAL ENACTMENT ENTITLES
CHICAGO TO THAT OPPORTUNITY.  CF. PUBLIC UTILITIES COMM'N OF CALIFORNIA
V. UNITED STATES, 355 U.S. 534, 546 (DISSENTING OPINION). 

NO PROVISION OF THE INTERSTATE COMMERCE ACT PURPORTS TO PRE-EMPT
CHICAGO'S POWER TO APPLY ITS ORDINANCE TO ONE IN THE POSITION OF
TRANSFER.  THIS IS THEREFORE NOT A CASE WHERE PARTICULAR PROVISIONS OF
FEDERAL AND LOCAL LEGISLATION CONFLICT IN SUCH A WAY THAT THEY CANNOT
LOGICALLY OR PRACTICALLY STAND TOGETHER, CF. CLOVERLEAF BUTTER CO. V.
PATTERSON, 315 U.S. 148; FIRST IOWA HYDRO-ELECTRIC COOPERATIVE V.
FEDERAL POWER COMM'N, 328 U.S. 152, NOR ONE WHERE THERE IS SUCH OVERALL
SIMILARITY BETWEEN FEDERAL AND STATE REGULATION THAT A CONGRESSIONAL
PURPOSE TO DISPLACE STATE ACTION IN ITS ENTIRETY CAN FAIRLY BE
DEDUCED.  CF. HINES V. DAVIDOWITZ, 312 U.S. 52; PENNSYLVANIA V. NELSON,
350 U.S. 497.  AND BECAUSE TRANSFER DOES NOT HOLD A CERTIFICATE OF
NECESSITY FROM THE INTERSTATE COMMERCE COMMISSION, AND SEEMINGLY CANNOT
GET ONE, SEE STATUS OF PARMELEE TRANSPORTATION CO., 288 I.C.C. 95, NO
CONFLICT APPEARS BETWEEN FEDERAL AND LOCAL REGULATORY POLICIES
RESPECTING THOSE PERFORMING TRANSFER SERVICES.  CF. CASTLE V. HAYES
FREIGHT LINES, INC., 348 U.S. 61.  THE SOLE QUESTION IS THUS WHETHER
THE ORDINANCE MUST BE STRUCK DOWN, WHEN APPLIED TO TRANSFER'S
OPERATIONS, AS "INCONSISTENT" WITH THE POLICY OF THE INTERSTATE
COMMERCE ACT TO FOSTER EFFICIENT INTERSTATE TRANSPORTATION. 

IN DETERMINING WHETHER CHICAGO'S ORDINANCE SHOULD NOW BE ANNULLED IT
MUST BE BORNE IN MIND THAT LOCAL AUTHORITIES ARE NOT FORECLOSED FROM
REGULATING MATTERS OF LOCAL CONCERN MERELY BECAUSE THERE MAY BE SOME
INCIDENTAL, BUT NOT BURDENSOME, EFFECT ON INTERSTATE COMMERCE.  AT
LEAST SINCE COOLEY V. BOARD OF WARDENS, 12 HOW.  299, IT HAS BEEN
RECOGNIZED THAT BECAUSE REGULATION OF LOCAL INCIDENTS OF INTERSTATE
TRANSPORTATION IS, AS A PRACTICAL MATTER, BEYOND THE EFFECTIVE REACH OF
CONGRESS, THERE WOULD FREQUENTLY BE AN UNDESIRABLE ABSENCE OF NEEDED
REGULATION UNLESS STATES AND MUNICIPALITIES WERE FREE TO ACT.  SEE
CALIFORNIA V. THOMPSON, 313 U.S. 109; SEE ALSO H.P. WELCH CO. V. NEW
HAMPSHIRE, 306 U.S. 79; EICHHOLZ V. PUBLIC SERVICE COMM'N OF MISSOURI,
306 U.S. 268.  SO MUCH INDEED IS RECOGNIZED BY THE COURT TODAY WHEN IT
SAYS THAT CHICAGO, AS PART OF ITS "CONSIDERABLE AUTHORITY" TO REGULATE
THE OPERATION OF TRANSFER VEHICLES, MAY EXACT FEES FOR THEIR USE OF THE
CITY STREETS AND MAY REQUIRE THEM TO MEET WITH SAFETY REGULATIONS AND
TO BE REGISTERED WITH THE CITY.  AND, OF COURSE, THE COURT'S EXAMPLES
DO NOT EXHAUST THE SCOPE OF LOCAL REGULATORY POWER TO INSURE SAFE
TRANSPORTATION.  NOR CAN I PERCEIVE WHY THE CITY SHOULD NOT BE
PERMITTED TO EXERCISE SUCH POWER BEFORE PERMITTING UNLICENSED VEHICLES
TO TRAVEL ON ITS STREETS.  ON THE OTHER HAND, I WOULD AGREE THAT
CHICAGO, UNDER THE GUISE OF PROMOTING SAFE AND PROPER TRANSPORTATION,
COULD NOT VALIDLY LIMIT ON "ECONOMIC" GROUNDS THOSE WITH WHOM THE
RAILROADS MAY CONTRACT TO CARRY ITS INTERSTATE PASSENGERS THROUGH THE
CITY.  CF. BUCK V. KUYKENDALL, 267 U.S. 307. 

WE DO NOT YET KNOW HOW CHICAGO WILL APPLY THE ORDINANCE.  IF IT
SHOULD GRANT TRANSFER A LICENSE, THAT WILL END THE PRESENT
CONTROVERSY.  IF A LICENSE IS DENIED, IT WILL THEN BE TIME ENOUGH TO
DETERMINE WHETHER THE BASIS FOR DENIAL RUNS AFOUL OF FEDERAL
TRANSPORTATION POLICY.  IT IS TRUE THAT THE ORDINANCE GIVES THE CITY
BROAD AUTHORITY, BUT THAT DOES NOT JUSTIFY THE ASSUMPTION THAT SUCH
AUTHORITY WILL BE EXERCISED BEYOND PERMISSIBLE BOUNDS, ESPECIALLY SINCE
CHICAGO HAS ACKNOWLEDGED THAT IT COULD NOT PROPERLY WITHHOLD A LICENSE
"SOLELY OR EVEN PRIMARILY" BECAUSE EXISTING TRANSFER FACILITIES WERE
ADEQUATE OR BECAUSE ADDITIONAL LICENSES WOULD ADVERSELY AFFECT THE
COMPETITIVE SITUATION.  ONLY BY REFRAINING FROM PASSING ON THE
ORDINANCE UNTIL CHICAGO HAS HAD A CHANCE TO ACT UNDER IT, DO WE RESPECT
THE LONG-STANDING TRADITION OF THIS COURT NOT TO INTERFERE PREMATURELY
WITH THE ADMINISTRATION OF STATE AND LOCAL ENACTMENTS.  SEE, E.G.,
ALABAMA FEDERATION OF LABOR V. MCADORY, 325 U.S. 450; PUBLIC SERVICE
COMM'N OF UTAH V. WYCOFF CO., 344 U.S. 237.  CF. SPECTOR MOTOR SERVICE,
INC., V. MCLAUGHLIN, 323 U.S. 101. 

THE FACT THAT THIS COURSE OF ACTION WOULD INVOLVE SOME FURTHER DELAY
AND EXPENSE DOES NOT, IN MY JUDGMENT, JUSTIFY BY-PASSING THE MUNICIPAL
AUTHORITIES.  TRANSFER ACCEPTED THE RISK OF SUCH A RESULT WHEN IT
FAILED TO APPLY FOR A LICENSE IN THE FIRST INSTANCE.  AND IF IT IS SAID
THAT THIS COURSE WILL EXPOSE THE TRANSFER OPERATIONS TO HAZARDS IN THE
INTERVAL, THE ANSWER IS THAT THE FEDERAL DISTRICT COURT IN CHICAGO
POSSESSES AMPLE AUTHORITY TO PREVENT ANY INTERFERENCE WITH TRANSFER'S
ACTIVITIES PENDING FINAL ADJUDICATION OF THE MATTERS IN CONTROVERSY. 
SOME YEARS AGO, IN A SITUATION CLOSELY ANALOGOUS TO THE ONE BEFORE US,
THIS COURT APPROVED THE DECISION OF A THREE-JUDGE DISTRICT COURT
DECLINING TO ENTERTAIN A COMPLAINT ATTACKING THE CONSTITUTIONALITY OF A
MISSOURI STATUTE WHICH PROHIBITED INTERSTATE CARRIERS FROM USING STATE
HIGHWAYS WITHOUT OBTAINING A PERMIT FROM THE STATE, ON THE GROUND THAT
THE COMPLAINANT HAD NOT APPLIED FOR SUCH A PERMIT.  COLUMBIA TERMINALS
CO. V. LAMBERT, 30 F. SUPP. 28; 309 U.S. 620.  I BELIEVE THAT COLUMBIA
TERMINALS PROVIDES THE GUIDING PRINCIPLE FOR THE APPROPRIATE
DISPOSITION OF PREMATURE CHALLENGES TO THE VALIDITY OF LOCAL
ORDINANCES.  HOWEVER, IN VIEW OF THE POSTURE OF THE PRESENT LITIGATION,
I WOULD FOLLOW A SOMEWHAT DIFFERENT COURSE HERE, AND WOULD VACATE THE
JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE TO THE DISTRICT
COURT.  OUR MANDATE SHOULD ENABLE THE DISTRICT COURT TO STAY THE
OPERATION OF CHICAGO'S ORDINANCE AND TO RETAIN JURISDICTION OVER THIS
CASE, PENDING TRANSFER'S PROMPT STEPS TO INITIATE LICENSE PROCEEDINGS
BEFORE THE LOCAL AUTHORITIES AND THE OUTCOME OF SUCH PROCEEDINGS. 
..END :





LOCAL 1976, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
A.F.L. V. NATIONAL LABOR RELATIONS BOARD 357 U.S. 93 


NO. 127.  ARGUED MARCH 12, 1958 - DECIDED JUNE 16, 1958* - 241 F.2D 147,
AFFIRMED - 101 U.S. APP. D.C. 80, 247 F.2D 71, AFFIRMED IN PART,
REVERSED IN PART AND CAUSE REMANDED. 

*TOGETHER WITH NO. 273, NATIONAL LABOR RELATIONS BOARD V. GENERAL
DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, LOCAL NO. 886, AFL
CIO, AND NO. 324, LOCAL 850, INTERNATIONAL ASSOCIATION OF MACHINISTS,
AFL-CIO, V. NATIONAL LABOR RELATIONS BOARD, BOTH ON CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT,
ARGUED MARCH 11-12, 1958. 


1.  UNDER SEC. 8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, A "HOT CARGO" PROVISION IN A COLLECTIVE BARGAINING AGREEMENT
BETWEEN A LABOR UNION AND AN EMPLOYER, PROVIDING THAT EMPLOYEES "SHALL
NOT BE REQUIRED TO HANDLE NON-UNION MATERIAL" OR "SHALL NOT BE ALLOWED
TO HANDLE OR HAUL FREIGHT TO OR FROM AN UNFAIR COMPANY," MAY NOT BE
ENFORCED BY UNION INDUCEMENT OF EMPLOYEES TO REFUSE TO HANDLE SUCH
GOODS, AND THE EXISTENCE OF SUCH A "HOT CARGO" PROVISION IS NOT A
DEFENSE TO A CHARGE OF AN UNFAIR LABOR PRACTICE UNDER THAT SECTION. 
PP. 98-108. 

2.  WHEN THE EMPLOYER IS A COMMON CARRIER IN INTERSTATE COMMERCE,
SUCH ENFORCEMENT OF A "HOT CARGO" PROVISION IS A VIOLATION OF SEC.
8(B)(4)(A), NOT BECAUSE OF A POSSIBLE BREACH OF THE CARRIER'S
OBLIGATIONS UNDER THE INTERSTATE COMMERCE ACT, BUT FOR THE SAME REASONS
THAT WARRANT THE FINDING OF A VIOLATION WHENEVER EMPLOYEES HAVE BEEN
INDUCED BY A UNION TO REFUSE TO HANDLE SUCH GOODS.  PP. 108-111. 

LOCAL 1976, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
A.F.L., ET AL. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE SO-CALLED "HOT CARGO" PROVISIONS IN COLLECTIVE
BARGAINING AGREEMENTS.  MORE PARTICULARLY, THEY RAISE THE QUESTION
WHETHER SUCH A PROVISION IS A DEFENSE TO A CHARGE AGAINST A UNION OF AN
UNFAIR LABOR PRACTICE UNDER SEC. 8(B)(4)(A) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, 61 STAT. 136, 141, 29 U.S.C. SEC.
158(B)(4)(A). 

NO. 127 ARISES OUT OF A LABOR DISPUTE BETWEEN CARPENTER UNIONS AND AN
EMPLOYER ENGAGED IN THE BUILDING CONSTRUCTION TRADE IN SOUTHERN
CALIFORNIA.  THE SAND DOOR AND PLYWOOD COMPANY IS THE EXCLUSIVE
DISTRIBUTOR IN SOUTHERN CALIFORNIA OF DOORS MANUFACTURED BY THE PAINE
LUMBER COMPANY OF OSHKOSH, WISCONSIN.  WATSON AND DREPS ARE MILLWORK
CONTRACTORS WHO PURCHASE DOORS FROM SAND.  HAVSTAD AND JENSEN ARE
GENERAL CONTRACTORS WHO WERE, AT THE TIME OF THE DISPUTE INVOLVED,
ENGAGED IN THE CONSTRUCTION OF A HOSPITAL IN LOS ANGELES.  HAVSTAD AND
JENSEN ARE PARTIES TO A MASTER LABOR AGREEMENT NEGOTIATED WITH THE
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA ON BEHALF OF
ITS AFFILIATED DISTRICT COUNCILS AND LOCALS, INCLUDING PETITIONER
UNIONS.  THIS AGREEMENT, COMPREHENSIVELY REGULATING THE LABOR RELATIONS
OF HAVSTAD AND JENSEN AND ITS CARPENTER EMPLOYEES, INCLUDES A PROVISION
THAT, "WORKMEN SHALL NOT BE REQUIRED TO HANDLE NON-UNION MATERIAL." 

IN AUGUST 1954 DOORS MANUFACTURED BY PAINE AND PURCHASED BY SAND WERE
DELIVERED TO THE HOSPITAL CONSTRUCTION SITE BY WATSON AND DREPS.  ON
THE MORNING OF AUGUST 17, FLEISHER, BUSINESS AGENT OF PETITIONER LOCAL
1976, CAME TO THE CONSTRUCTION SITE AND NOTIFIED STEINERT, HAVSTAD AND
JENSEN'S FOREMAN, THAT THE DOORS WERE NON-UNION AND COULD NOT BE HUNG. 
STEINERT THEREFORE ORDERED EMPLOYEES TO CEASE HANDLING THE DOORS.  WHEN
NICHOLSON, HAVSTAD AND JENSEN'S GENERAL SUPERINTENDENT, APPEARED ON THE
JOB AND ASKED FLEISHER WHY THE WORKERS HAD BEEN PREVENTED FROM HANDLING
THE DOORS, HE STATED THAT THEY HAD BEEN STOPPED UNTIL IT COULD BE
DETERMINED WHETHER THE DOORS WERE UNION OR NONUNION.  SUBSEQUENT
NEGOTIATIONS BETWEEN OFFICERS OF SAND AND THE UNION FAILED TO PRODUCE
AN AGREEMENT THAT WOULD PERMIT THE DOORS TO BE INSTALLED. 

ON THE BASIS OF CHARGES FILED BY SAND AND A COMPLAINT DULY ISSUED,
THE NATIONAL LABOR RELATIONS BOARD FOUND THAT PETITIONERS HAD INDUCED
AND ENCOURAGED EMPLOYEES TO ENGAGE IN A STRIKE OR CONCERTED REFUSAL TO
HANDLE PAINE'S DOORS IN ORDER TO FORCE HAVSTAD AND JENSEN AND SAND TO
CEASE DOING BUSINESS WITH PAINE, ALL IN VIOLATION OF SEC. 8(B)(4)(A). 
113 N.L.R.B. 1210.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT ENFORCED
THE BOARD'S CEASE-AND-DESIST ORDER, 241 F.2D 147, AND WE GRANTED
CERTIORARI.  355 U.S. 808.  THE SOLE QUESTION TENDERED BY THE PETITION
FOR CERTIORARI CONCERNED THE RELATION BETWEEN THE HOT CARGO PROVISION
IN THE COLLECTIVE BARGAINING AGREEMENT AND THE CHARGE OF AN UNFAIR
LABOR PRACTICE PROSCRIBED BY SEC. 8(B)(4)(A).  (FN1) 

NOS. 273 AND 324 ARISE OUT OF A LABOR DISPUTE IN OKLAHOMA CITY IN
WHICH CERTAIN UNIONS ARE SAID TO HAVE INDUCED THE EMPLOYEES OF FIVE
COMMON CARRIERS TO CEASE HANDLING THE GOODS OF ANOTHER EMPLOYER IN
VIOLATION OF SEC. 8(B)(4)(A).  AMERICAN IRON AND MACHINE WORKS WAS
ENGAGED IN A CONTROVERSY WITH LOCAL 850 OF THE INTERNATIONAL
ASSOCIATION OF MACHINISTS, THE BARGAINING REPRESENTATIVE OF ITS
PRODUCTION AND MAINTENANCE EMPLOYEES, AND A STRIKE HAD BEEN CALLED AT
THE COMPANY'S PLANTS.  PICKETING AT THE PLANTS PREVENTED THE CARRIERS
THAT NORMALLY SERVED AMERICAN IRON FROM MAKING PICKUP AND DELIVERIES,
SO AMERICAN IRON HAULED FREIGHT IN ITS OWN TRUCKS TO THE LOADING
PLATFORMS OF THE CARRIERS.  THE MACHINISTS FOLLOWED THE TRUCKS TO THE
CARRIERS' PLATFORMS AND PICKETED THEM THERE, WITHOUT MAKING IT CLEAR
THAT THEIR DISPUTE WAS ONLY WITH AMERICAN IRON.  IN ADDITION, THERE WAS
EVIDENCE THAT THEY EXPRESSLY REQUESTED EMPLOYEES OF SOME OF THE
CARRIERS NOT TO HANDLE AMERICAN IRON FREIGHT.  TEAMSTERS UNION LOCAL
886, REPRESENTATIVE OF THE CARRIERS' EMPLOYEES, INSTRUCTED THE
EMPLOYEES TO CEASE HANDLING THE FREIGHT.  ALL THE CARRIERS EXCEPT ONE
EXPRESSLY ORDERED THEIR EMPLOYEES TO MOVE AMERICAN IRON FREIGHT, BUT
NEVERTHELESS THEY REFUSED TO DO SO.  THE TEAMSTERS' CONTRACT WITH THE
CARRIERS CONTAINED A PROVISION THAT, "MEMBERS OF THE UNION SHALL NOT BE
ALLOWED TO HANDLE OR HAUL FREIGHT TO OR FROM AN UNFAIR COMPANY,
PROVIDED, THIS IS NOT A VIOLATION OF THE LABOR MANAGEMENT RELATIONS ACT
OF 1947." 

ON THE BASIS OF CHARGES FILED BY AMERICAN IRON, THE BOARD ISSUED
COMPLAINTS AGAINST THE UNIONS AND FOUND THAT BOTH THE MACHINISTS AND
TEAMSTERS, BY THEIR APPEALS OR INSTRUCTIONS TO THE CARRIERS' EMPLOYEES,
HAD VIOLATED SEC. 8(B)(4)(A), NOTWITHSTANDING THE HOT CARGO PROVISION
IN THE COLLECTIVE BARGAINING AGREEMENT.  115 N.L.R.B. 800.  THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SET ASIDE THE ORDERS AS
TO THE TEAMSTERS BECAUSE OF THE HOT CARGO PROVISION (NO. 273), BUT
ENFORCED THE ORDER AGAINST THE MACHINISTS (NO. 324).  101 U.S. APP.
D.C. 80, 247 F.2D 71.  WE GRANTED CERTIORARI IN ALL THREE CASES BECAUSE
OF CONFLICTS AMONG THE CIRCUITS AS TO THE MEANING OF SEC. 8(B)(4)(A),
AND BECAUSE OF THE IMPORTANCE OF THE PROBLEM IN THE ADMINISTRATION OF
THE NATIONAL LABOR RELATIONS ACT, AND ORDERED THEM CONSOLIDATED FOR
ARGUMENT.  355 U.S. 808.  (FN2) 

PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS  ...  (4) TO ENGAGE IN,
OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY EMPLOYER TO ENGAGE IN, A
STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF THEIR EMPLOYMENT TO USE,
MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE OR WORK ON ANY
GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM ANY SERVICES,
WHERE AN OBJECT THEREOF IS:  (A) FORCING OR REQUIRING  ...  ANY
EMPLOYER OR OTHER PERSON TO CEASE USING, SELLING, HANDLING,
TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS OF ANY OTHER
PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING BUSINESS WITH
ANY OTHER PERSON ...  ." 

WHATEVER MAY HAVE BEEN SAID IN CONGRESS PRECEDING THE PASSAGE OF THE
TAFT-HARTLEY ACT CONCERNING THE EVIL OF ALL FORMS OF "SECONDARY
BOYCOTTS" AND THE DESIRABILITY OF OUTLAWING THEM, IT IS CLEAR THAT NO
SUCH SWEEPING PROHIBITION WAS IN FACT ENACTED IN SEC. 8(B)(4)(A).  THE
AND CONDEMNS SPECIFIC UNION CONDUCT DIRECTED TO SPECIFIC OBJECTIVES. 
IT FORBIDS A UNION TO INDUCE EMPLOYEES TO STRIKE AGAINST OR TO REFUSE
TO HANDLE GOODS FOR THEIR EMPLOYER WHEN AN OBJECT IS TO FORCE HIM OR
ANOTHER PERSON TO CEASE DOING BUSINESS WITH SOME THIRD PARTY. 
EMPLOYEES MUST BE INDUCED; THEY MUST BE INDUCED TO ENGAGE IN A STRIKE
OR CONCERTED REFUSAL; AN OBJECT MUST BE TO FORCE OR REQUIRE THEIR
EMPLOYER OR ANOTHER PERSON TO CEASE DOING BUSINESS WITH A THIRD
PERSON.  THUS, MUCH THAT MIGHT ARGUMENTATIVELY BE FOUND TO FALL WITHIN
THE BROAD AND SOMEWHAT VAGUE CONCEPT OF SECONDARY BOYCOTT IS NOT IN
TERMS PROHIBITED.  A BOYCOTT VOLUNTARILY ENGAGED IN BY A SECONDARY
EMPLOYER FOR HIS OWN BUSINESS REASONS, PERHAPS BECAUSE THE UNIONIZATION
OF OTHER EMPLOYERS WILL PROTECT HIS COMPETITIVE POSITION OR BECAUSE HE
IDENTIFIES HIS OWN INTERESTS WITH THOSE OF HIS EMPLOYEES AND THEIR
UNION, IS NOT COVERED BY THE STATUTE.  LIKEWISE, A UNION IS FREE TO
APPROACH AN EMPLOYER TO PERSUADE HIM TO ENGAGE IN A BOYCOTT, SO LONG AS
IT REFRAINS FROM THE SPECIFICALLY PROHIBITED MEANS OF COERCION THROUGH
INDUCEMENT OF EMPLOYEES. 

FROM THESE CONSIDERATIONS OF WHAT IS NOT PROHIBITED BY THE STATUTE,
THE TRUE SCOPE AND LIMITS OF THE LEGISLATIVE PURPOSE EMERGE.  THE
PRIMARY EMPLOYER, WITH WHOM THE UNION IS PRINCIPALLY AT ODDS, HAS NO
ABSOLUTE ASSURANCE THAT HE WILL BE FREE FROM THE CONSEQUENCES OF A
SECONDARY BOYCOTT.  NOR HAVE OTHER EMPLOYERS OR PERSONS WHO DEAL WITH
EITHER THE PRIMARY EMPLOYER OR THE SECONDARY EMPLOYER AND WHO MAY BE
INJURIOUSLY AFFECTED BY THE RESTRICTIONS ON COMMERCE THAT FLOW FROM
SECONDARY BOYCOTTS.  NOR HAS THE GENERAL PUBLIC.  WE DO NOT READ THE
WORDS "OTHER PERSON" IN THE PHRASE "FORCING OR REQUIRING  ...  ANY
EMPLOYER OR OTHER PERSON" TO EXTEND PROTECTION FROM THE EFFECTS OF A
SECONDARY BOYCOTT TO SUCH OTHER PERSON WHEN THE SECONDARY EMPLOYER
HIMSELF, THE EMPLOYER OF THE EMPLOYEES INVOLVED, CONSENTS TO THE
BOYCOTT.  WHEN HE DOES CONSENT IT CANNOT APPROPRIATELY BE SAID THAT
THERE IS A STRIKE OR CONCERTED REFUSAL TO HANDLE GOODS ON THE PART OF
THE EMPLOYEES.  CONGRESS HAS NOT SEEN FIT TO PROTECT THESE OTHER
PERSONS OR THE GENERAL PUBLIC BY ANY WHOLESALE CONDEMNATION OF
SECONDARY BOYCOTTS, SINCE IF THE SECONDARY EMPLOYER AGREES TO THE
BOYCOTT, OR IT IS BROUGHT ABOUT BY MEANS OTHER THAN THOSE PROSCRIBED IN
SEC. 8(B)(4)(A), THERE IS NO UNFAIR LABOR PRACTICE. 

IT IS RELEVANT TO RECALL THAT THE TAFT-HARTLEY ACT WAS, TO A MARKED
DEGREE, THE RESULT OF CONFLICT AND COMPROMISE BETWEEN STRONG CONTENDING
FORCES AND DEEPLY HELD VIEWS ON THE ROLE OF ORGANIZED LABOR IN THE FREE
ECONOMIC LIFE OF THE NATION AND THE APPROPRIATE BALANCE TO BE STRUCK
BETWEEN THE UNCONTROLLED POWER OF MANAGEMENT AND LABOR TO FURTHER THEIR
RESPECTIVE INTERESTS.  THIS IS RELEVANT IN THAT IT COUNSELS WARINESS IN
FINDING BY CONSTRUCTION A BROAD POLICY AGAINST SECONDARY BOYCOTTS AS
SUCH WHEN, FROM THE WORDS OF THE STATUTE ITSELF, IT IS CLEAR THAT THOSE
INTERESTED IN JUST SUCH A CONDEMNATION WERE UNABLE TO SECURE ITS
EMBODIMENT IN ENACTED LAW.  THE PROBLEM RAISED BY THESE CASES AFFORDS A
STRIKING ILLUSTRATION OF THE IMPORTANCE OF THE TRUISM THAT IT IS THE
BUSINESS OF CONGRESS TO DECLARE POLICY AND NOT THIS COURT'S.  THE
JUDICIAL FUNCTION IS CONFINED TO APPLYING WHAT CONGRESS HAS ENACTED
AFTER ASCERTAINING WHAT IT IS THAT CONGRESS HAS ENACTED.  BUT SUCH
ASCERTAINMENT, THAT IS, CONSTRUING LEGISLATION, IS NOTHING LIKE A
MECHANICAL ENDEAVOR.  IT COULD NOT BE ACCOMPLISHED BY THE SUBTLEST OF
MODERN "BRAIN" MACHINES.  BECAUSE OF THE INFIRMITIES OF LANGUAGE AND
THE LIMITED SCOPE OF SCIENCE IN LEGISLATIVE DRAFTING, INEVITABLY THERE
ENTERS INTO THE CONSTRUCTION OF STATUTES THE PLAY OF JUDICIAL JUDGMENT
WITHIN THE LIMITS OF THE RELEVANT LEGISLATIVE MATERIALS.  MOST
RELEVANT, OF COURSE, IS THE VERY LANGUAGE IN WHICH CONGRESS HAS
EXPRESSED ITS POLICY AND FROM WHICH THE COURT MUST EXTRACT THE MEANING
MOST APPROPRIATE.  OF COURSE SEC. 8(B)(4)(A), LIKE THE ENTIRE TAFT
HARTLEY ACT, WAS DESIGNED TO PROTECT THE PUBLIC INTEREST, BUT NOT IN
THE SENSE THAT THE PUBLIC WAS TO BE SHIELDED FROM SECONDARY BOYCOTTS NO
MATTER HOW BROUGHT ABOUT.  CONGRESS' PURPOSE WAS MORE NARROWLY
CONCEIVED.  IT AIMED TO RESTRICT THE AREA OF INDUSTRIAL CONFLICT
INSOFAR AS THIS COULD BE ACHIEVED BY PROHIBITING THE MOST OBVIOUS,
WIDESPREAD, AND, AS CONGRESS EVIDENTLY JUDGED, DANGEROUS PRACTICE OF
UNIONS TO WIDEN THAT CONFLICT: THE COERCION OF NEUTRAL EMPLOYERS,
THEMSELVES NOT CONCERNED WITH A PRIMARY LABOR DISPUTE, THROUGH THE
INDUCEMENT OF THEIR EMPLOYEES TO ENGAGE IN STRIKES OR CONCERTED
REFUSALS TO HANDLE GOODS.  IN THE LIGHT OF THE PURPOSE OF THE STATUTE
AS THUS DEFINED THE CASES NOW BEFORE THE COURT MUST BE JUDGED. 

THE QUESTION IS WHETHER A HOT CARGO PROVISION, SUCH AS IS FOUND IN
THE COLLECTIVE BARGAINING AGREEMENTS IN THESE CASES, CAN BE A DEFENSE
TO A CHARGE OF AN UNFAIR LABOR PRACTICE UNDER SEC. 8(B)(4)(A) WHEN, IN
THE ABSENCE OF SUCH A PROVISION, THE UNION CONDUCT WOULD UNQUESTIONABLY
BE A VIOLATION.  THIS QUESTION HAS HAD A CHECKERED CAREER IN THE
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD SINCE IT FIRST CAME
BEFORE THAT TRIBUNAL SOME NINE YEARS AGO.  IN THE CONWAY'S EXPRESS
CASE, IN RE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 87 N.L.R.B. 972
(1949), AFF'D SUB NOM. RABOUIN V. LABOR BOARD, 195 F.2D 906, THE BOARD
(MEMBERS HOUSTON, MURDOCK, AND GRAY) FOUND THAT THERE WAS NOTHING IN A
HOT CARGO PROVISION AS SUCH REPUGNANT TO THE POLICY OF THE STATUTE, AND
THAT THE UNION HAD NOT VIOLATED SEC. 8(B)(4)(A) WHEN, PURSUANT TO THE
PROVISION, IT HAD INSTRUCTED EMPLOYEES NOT TO HANDLE GOODS, AND THE
EMPLOYERS HAD APPARENTLY ACQUIESCED.  CHAIRMAN HERZOG CONCURRED IN THE
FINDING THAT SEC. 8(B)(4)(A) HAD NOT BEEN VIOLATED ON THE FACTS OF THE
PARTICULAR CASE, BUT WAS OF THE OPINION THAT THE HOT CARGO PROVISION
DID NOT LICENSE THE UNION ITSELF TO TAKE ACTION TO INDUCE THE EMPLOYEES
TO REFUSE TO HANDLE GOODS.  87 N.L.R.B., AT 983, N. 33.  MEMBER
REYNOLDS DISSENTED ON THE GROUND THAT A HOT CARGO PROVISION WAS IN
CONFLICT WITH THE POLICY OF THE STATUTE AND COULD NOT BE INVOKED AS A
DEFENSE TO A CHARGE OF A VIOLATION OF SEC. 8(B)(4)(A).  IN THE
PITTSBURGH PLATE GLASS CASE, CHAUFFEURS UNION, 105 N.L.R.B.  740
(1953), WHERE THE UNION HAD ALSO INDUCED EMPLOYEES NOT TO HANDLE GOODS
AND THE EMPLOYERS HAD ACQUIESCED IN THE ENFORCEMENT OF THE HOT CARGO
PROVISIONS, THE BOARD WITHOUT DISSENT (MEMBERS HOUSTON, MURDOCK, STYLES
AND PETERSON; CHAIRMAN HERZOG TOOK NO PART) ADHERED TO THE CONWAY
DECISION.  SINCE "THE EMPLOYERS IN THIS PROCEEDING CONSENTED TO THE
'UNFAIR GOODS' PROVISION OF THE CONTRACTS, THEIR EMPLOYEES' FAILURE TO
HANDLE THESE GOODS WAS NOT A STRIKE OR CONCERTED REFUSAL TO WORK UNDER
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 110 N.L.R.B. 1769 (1954), THE
BOARD TOOK A DIFFERENT POSITION.  MEMBERS RODGERS AND BEESON WERE OF
THE VIEW THAT SEC. 8(B)(4)(A) PROHIBITED ALL SECONDARY BOYCOTTS AND HAD
BEEN ENACTED AS MUCH FOR THE PROTECTION OF THE PRIMARY EMPLOYER AND THE
PUBLIC AS THE SECONDARY EMPLOYERS, AND THAT A CONTRACT BETWEEN THE
SECONDARY EMPLOYERS AND THE UNION WAS INEFFECTIVE TO WAIVE THE
PROTECTION GRANTED THESE OTHER INTERESTS.  THEY CALLED FOR OVERRULING
THE CONWAY CASE AND A DECLARATION THAT A HOT CARGO PROVISION IS NO
DEFENSE TO A CHARGE UNDER SEC. 8(B)(4)(A).  CHAIRMAN FARMER CONCURRED
IN FINDING A VIOLATION OF THE STATUTE, ON THE GROUND THAT THE CASE WAS
DISTINGUISHABLE FROM THE CONWAY AND PITTSBURGH PLATE GLASS DECISIONS IN
THAT THE EMPLOYERS HAD NOT ACQUIESCED IN THE EMPLOYEES' FAILURE TO
HANDLE THE GOODS.  HE FOUND NOTHING CONTRARY TO THE STATUTE IN THE
EXECUTION OF A HOT CARGO PROVISION AND MUTUAL ADHERENCE TO IT BY
EMPLOYER AND UNION, BUT ONLY IN THE INDUCEMENT OF EMPLOYEES TO REFUSE
TO HANDLE GOODS IN THE FACE OF EXPRESS INSTRUCTIONS TO DO SO.  MEMBERS
MURDOCK AND PETERSON DISSENTED ON THE GROUND THAT SINCE THE EMPLOYERS
HAD BY THE HOT CARGO PROVISION CONSENTED IN ADVANCE TO THE BOYCOTT,
THERE WAS NO STRIKE OR CONCERTED REFUSAL TO HANDLE GOODS WITHIN THE
MEANING OF THE STATUTE, APPARENTLY EVEN ASSUMING THAT THE EMPLOYERS HAD
INSTRUCTED THEIR EMPLOYEES TO HANDLE THE GOODS. 

STILL FURTHER MUTATIONS IN THE POSITION OF THE BOARD AND THE VIEWS OF
THE INDIVIDUAL MEMBERS TOOK PLACE IN THE SAND DOOR CASE, LOCAL 1976,
UNITED BROTHERHOOD OF CARPENTERS, 113 N.L.R.B. 1210 (1955), NOW HERE AS
NO. 127.  CHAIRMAN FARMER AND MEMBER LEEDOM MAINTAINED THAT, ALTHOUGH
HOT CARGO CLAUSES ARE NOT THEMSELVES IN CONFLICT WITH THE STATUTE, ANY
DIRECT APPEAL BY A UNION TO THE EMPLOYEES OF A SECONDARY EMPLOYER TO
INDUCE THEM TO REFUSE TO HANDLE GOODS, AND IN THIS MANNER TO ASSERT
THEIR RIGHTS UNDER THE CONTRACT, VIOLATES SEC. 8(B)(4)(A).  THE
IMPORTANCE OF THE FACT THAT, EVIDENTLY, THE EMPLOYER IN THE CASE BEFORE
THE BOARD HAD NOT ACQUIESCED IN THE STOPPAGE WAS NOT MADE CLEAR. 
MEMBER RODGERS CONCURRED IN THE RESULT ON THE BASIS OF THE PRINCIPAL
OPINION IN THE MCALLISTER CASE AND HIS VIEW THAT HOT CARGO CLAUSES AS
SUCH VIOLATE THE POLICY OF THE STATUTE.  MEMBERS MURDOCK AND PETERSON,
DISSENTING, ADHERED TO THE VIEWS THEY HAD EXPRESSED IN MCALLISTER.  SEE
ALSO LOCAL 11, UNITED BROTHERHOOD OF CARPENTERS (GENERAL MILLWORK
CORP.), 113 N.L.R.B. 1084, 1086-1087, AND MEMBERS MURDOCK AND PETERSON
DISSENTING AT 1088-1090, AFF'D SUB NOM.  LABOR BOARD V. LOCAL 11,
UNITED BROTHERHOOD OF CARPENTERS, 242 F.2D 932 (C.A. 6TH CIR.). 

IN THE AMERICAN IRON CASE, GENERAL DRIVERS UNION, 115 N.L.R.B. 800
(1956), NOW HERE AS NOS. 273 AND 324, MEMBERS LEEDOM AND BEAN RELIED ON
THE PRINCIPAL OPINION IN THE SAND DOOR CASE, MAKING IT CLEAR THAT ANY
DIRECT APPEAL TO THE EMPLOYEES WAS FORBIDDEN WHETHER OR NOT THE
EMPLOYER ACQUIESCED IN THE BOYCOTT.  MEMBER RODGERS CONCURRED ON THE
BASIS OF HIS PREVIOUS OPINIONS.  MEMBERS MURDOCK AND PETERSON
DISSENTED, NOTING THAT SINCE THERE WAS A VIOLATION OF THE STATUTE EVEN
IF THE EMPLOYER ACQUIESCED, THE CONWAY DOCTRINE HAD AT LEAST BEEN
CLEARLY REPUDIATED.  SEE ALSO MILK DRIVERS UNION (CROWLEY'S MILK CO.),
116 N.L.R.B. 1408 (1956), ORDERS REVERSED AND ENFORCEMENT DENIED SUB
NOM. MILK DRIVERS UNION V. LABOR BOARD, 245 F.2D 817 (C.A.2D CIR.). 

IN A DECISION HANDED DOWN AFTER THE GRANTING OF CERTIORARI IN THE
CASES NOW BEFORE THE COURT, TRUCK DRIVERS UNION (GENUINE PARTS CO.),
119 N.L.R.B. 399 (1957), TWO MEMBERS OF THE BOARD, CHAIRMAN LEEDOM AND
MEMBER JENKINS, RESTED ON A BROADER GROUND THAN THAT TAKEN IN THE
PRINCIPAL OPINION IN THE SAND DOOR AND AMERICAN IRON CASES:  WHEN THE
SECONDARY EMPLOYER IS A COMMON CARRIER SUBJECT TO THE INTERSTATE
COMMERCE ACT, 24 STAT. 379, AS AMENDED BY ACT OF AUG. 9, 1935, 49 STAT.
543, AMENDED, 49 U.S.C.  SECS. 301-327, A HOT CARGO CLAUSE IS INVALID
AT ITS INCEPTION AND CANNOT BE RECOGNIZED BY THE BOARD AS HAVING ANY
FORCE OR EFFECT.  IT IS ALSO STRONGLY SUGGESTED IN THE OPINION FILED BY
THESE MEMBERS THAT IT WOULD BE DESIRABLE TO ESTABLISH SUCH A RULE IN
RESPECT TO ALL EMPLOYERS, AND THAT THE MERE EXISTENCE OF A HOT CARGO
CLAUSE SHOULD BE DEEMED PRIMA FACIE EVIDENCE OF INDUCEMENT IN VIOLATION
OF SEC. 8(B)(4)(A).  MEMBER RODGERS CONCURRED ON THE BASIS OF HIS
EARLIER OPINIONS, WITHOUT CONSIDERING THE IMPLICATIONS OF THE
INTERSTATE COMMERCE ACT.  MEMBER BEAN CONCURRED SOLELY ON THE BASIS OF
THE SAND DOOR CASE.  MEMBER MURDOCK DISSENTED, OBJECTING PARTICULARLY
TO WHAT HE CONCEIVED TO BE THE EXTREME SUGGESTION THAT THE MERE
EXISTENCE OF A HOT CARGO PROVISION SHOULD BE DEEMED PRIMA FACIE
EVIDENCE OF A VIOLATION OF SEC. 8(B)(4)(A), AND POINTING OUT THAT A
MAJORITY OF THE BOARD APPEARS TO HAVE ABANDONED THE THEORY OF THE SAND
DOOR AND AMERICAN IRON CASES EVEN BEFORE THIS COURT COULD REVIEW THEM. 

THE ARGUMENT THAT A HOT CARGO CLAUSE IS A DEFENSE TO A CHARGE OF A
VIOLATION OF SEC. 8(B)(4)(A) MAY BE THUS STATED.  THE EMPLOYER HAS BY
CONTRACT VOLUNTARILY AGREED THAT HIS EMPLOYEES SHALL NOT HANDLE THE
GOODS.  BECAUSE OF THIS CONSENT, EVEN IF IT IS SOUGHT TO BE WITHDRAWN
AT THE TIME OF AN ACTUAL WORK STOPPAGE AND BOYCOTT, IT CANNOT BE SAID,
IN THE LIGHT OF THE STATUTORY PURPOSE, EITHER THAT THERE IS A "STRIKE
OR A CONCERTED REFUSAL" ON THE PART OF THE EMPLOYEES, OR THAT THERE IS
A "FORCING OR REQUIRING" OF THE EMPLOYER.  ONLY IF CONSIDERATION IS
CONFINED TO THE CIRCUMSTANCES IMMEDIATELY SURROUNDING THE BOYCOTT, IN
DISREGARD OF THE BROADER HISTORY OF THE LABOR RELATIONS OF THE PARTIES,
IS IT POSSIBLE TO SAY THAT THE EMPLOYER IS COERCED INTO ENGAGING IN THE
BOYCOTT.  IF THE PURPOSE OF THE STATUTE IS TO PROTECT NEUTRALS FROM
CERTAIN UNION PRESSURES TO INVOLVE THEM INVOLUNTARILY IN THE LABOR
DISPUTES OF OTHERS, PROTECTION SHOULD NOT EXTEND TO AN EMPLOYER WHO HAS
AGREED TO A HOT CARGO PROVISION, FOR SUCH AN EMPLOYER IS NOT IN FACT
INVOLUNTARILY INVOLVED IN THE DISPUTE.  THIS MUST AT LEAST BE SO WHEN
THE EMPLOYER TAKES NO STEPS AT THE TIME OF THE BOYCOTT TO REPUDIATE THE
CONTRACT AND TO ORDER HIS EMPLOYEES TO HANDLE THE GOODS.  THE UNION
DOES NO MORE THAN INFORM THE EMPLOYEES OF THEIR CONTRACTUAL RIGHTS AND
URGE THEM TO TAKE THE ONLY ACTION EFFECTIVE TO ENFORCE THEM. 

THE BOARD IN THE PRESENT CASES HAS REJECTED THE ARGUMENT AS NOT
COMPORTING WITH THE LEGISLATIVE PURPOSE TO BE DRAWN FROM THE STATUTE,
PROJECTED ONTO THE PRACTICAL REALITIES OF LABOR RELATIONS.  WE AGREE,
DULY HEEDFUL OF THE STRENGTH OF THE ARGUMENT TO THE CONTRARY.  THERE IS
NOTHING IN THE LEGISLATIVE HISTORY TO SHOW THAT CONGRESS DIRECTLY
CONSIDERED THE RELATION BETWEEN HOT CARGO PROVISIONS AND THE
PROHIBITIONS OF SEC. 8(B)(4)(A).  NEVERTHELESS, IT SEEMS MOST PROBABLE
THAT THE FREEDOM OF CHOICE FOR THE EMPLOYER CONTEMPLATED BY SEC.
(B)(4)(A) IS A FREEDOM OF CHOICE AT THE TIME THE QUESTION WHETHER TO
BOYCOTT OR NOT ARISES IN A CONCRETE SITUATION CALLING FOR THE EXERCISE
OF JUDGMENT ON A PARTICULAR MATTER OF LABOR AND BUSINESS POLICY.  SUCH
A CHOICE, FREE FROM THE PROHIBITED PRESSURES - WHETHER TO REFUSE TO
DEAL WITH ANOTHER OR TO MAINTAIN NORMAL BUSINESS RELATIONS ON THE
GROUND THAT THE LABOR DISPUTE IS NO CONCERN OF HIS - MUST AS A MATTER
OF FEDERAL POLICY BE AVAILABLE TO THE SECONDARY EMPLOYER
NOTWITHSTANDING ANY PRIVATE AGREEMENT ENTERED INTO BETWEEN THE
PARTIES.  SEE NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350, 364. 
THIS IS SO BECAUSE BY THE EMPLOYER'S INTELLIGENT EXERCISE OF SUCH A
CHOICE UNDER THE IMPACT OF A CONCRETE SITUATION WHEN JUDGMENT IS MOST
RESPONSIBLE, AND NOT MERELY AT THE TIME A COLLECTIVE BARGAINING
AGREEMENT IS DRAWN UP COVERING A MULTITUDE OF SUBJECTS, OFTEN IN A
GENERAL AND ABSTRACT MANNER, CONGRESS MAY RIGHTLY BE ASSUMED TO HAVE
HOPED THAT THE SCOPE OF INDUSTRIAL CONFLICT AND THE ECONOMIC EFFECTS OF
THE PRIMARY DISPUTE MIGHT BE EFFECTIVELY LIMITED. 

CERTAINLY THE LANGUAGE OF THE STATUTE DOES NOT COUNTER SUCH AN
INTERPRETATION.  THE EMPLOYEES' ACTION MAY BE DESCRIBED AS A "STRIKE OR
CONCERTED REFUSAL," AND THERE IS A "FORCING OR REQUIRING" OF THE
EMPLOYER, EVEN THOUGH THERE IS A HOT CARGO PROVISION.  THE REALITIES OF
COERCION ARE NOT ALTERED SIMPLY BECAUE IT IS SAID THAT THE EMPLOYER IS
FORCED TO CARRY OUT A PRIOR ENGAGEMENT RATHER THAN FORCED NOW TO CEASE
DOING BUSINESS WITH ANOTHER.  A MORE IMPORTANT CONSIDERATION, AND ONE
PECULIARLY WITHIN THE COGNIZANCE OF THE BOARD BECAUSE OF ITS CLOSENESS
TO AND FAMILIARITY WITH THE PRACTICALITIES OF THE COLLECTIVE BARGAINING
PROCESS, IS THE POSSIBILITY THAT THE CONTRACTUAL PROVISION ITSELF MAY
WELL NOT HAVE BEEN THE RESULT OF CHOICE ON THE EMPLOYER'S PART FREE
FROM THE KIND OF COERCION CONGRESS HAS CONDEMNED.  IT MAY HAVE BEEN
FORCED UPON HIM BY STRIKES THAT, IF USED TO BRING ABOUT A BOYCOTT WHEN
THE UNION IS ENGAGED IN A DISPUTE WITH SOME PRIMARY EMPLOYER, WOULD
CLEARLY BE PROHIBITED BY THE ACT.  THUS, TO ALLOW THE UNION TO INVOKE
THE PROVISION TO JUSTIFY CONDUCT THAT IN THE ABSENCE OF SUCH A
PROVISION WOULD BE A VIOLATION OF THE STATUTE MIGHT GIVE IT THE MEANS
TO TRANSMIT TO THE MOMENT OF BOYCOTT, THROUGH THE CONTRACT, THE VERY
PRESSURES FROM WHICH CONGRESS HAS DETERMINED TO RELIEVE SECONDARY
EMPLOYERS. 

THUS INDUCEMENTS OF EMPLOYEES THAT ARE PROHIBITED UNDER SEC.
8(B)(4)(A) IN THE ABSENCE OF A HOT CARGO PROVISION ARE LIKEWISE
PROHIBITED WHEN THERE IS SUCH A PROVISION.  THE BOARD HAS CONCLUDED
THAT A UNION MAY NOT, ON THE ASSUMPTION THAT THE EMPLOYER WILL RESPECT
HIS CONTRACTUAL OBLIGATION, ORDER ITS MEMBERS TO CEASE HANDLING GOODS,
AND THAT ANY DIRECT APPEAL TO THE EMPLOYEES TO ENGAGE IN A STRIKE OR
CONCERTED REFUSAL TO HANDLE GOODS IS PROSCRIBED.  THIS CONCLUSION WAS
REACHED ONLY AFTER CONSIDERABLE EXPERIENCE WITH THE DIFFICULTY OF
DETERMINING WHETHER AN EMPLOYER HAS IN FACT ACQUIESCED IN A BOYCOTT,
WHETHER HE DID OR DID NOT ORDER HIS EMPLOYEES TO HANDLE THE GOODS, AND
THE SIGNIFICANCE OF AN EMPLOYER'S SILENCE.  OF COURSE IF AN EMPLOYER
DOES INTEND TO OBSERVE THE CONTRACT, AND DOES TRULY SANCTION AND
SUPPORT THE BOYCOTT, THERE IS NO VIOLATION OF SEC. 8(B)(4)(A).  A
VOLUNTARY EMPLOYER BOYCOTT DOES NOT BECOME PROHIBITED ACTIVITY SIMPLY
BECAUSE A HOT CARGO CLAUSE EXISTS.  BUT THERE REMAINS THE QUESTION
WHETHER THE EMPLOYER HAS IN FACT TRULY SANCTIONED AND SUPPORTED THE
BOYCOTT, AND WHETHER HE HAS EXERCISED THE CHOICE CONTEMPLATED BY THE
STATUTE.  THE POTENTIALITY OF COERCION IN A SITUATION WHERE THE UNION
IS FREE TO APPROACH THE EMPLOYEES AND INDUCE THEM TO ENFORCE THEIR
CONTRACTUAL RIGHTS BY SELF-HELP IS VERY GREAT.  FACED WITH A CONCERTED
WORK STOPPAGE ALREADY IN PROGRESS, AN EMPLOYER MAY FIND IT
SUBSTANTIALLY MORE DIFFICULT THAN HE OTHERWISE WOULD TO DECIDE THAT
BUSINESS SHOULD GO ON AS USUAL AND THAT HIS EMPLOYEES MUST HANDLE THE
GOODS.  HIS "ACQUIESCENCE" IN THE BOYCOTT MAY BE ANYTHING BUT FREE.  IN
ORDER TO GIVE EFFECT TO THE STATUTORY POLICY, IT IS NOT UNREASONABLE TO
INSIST, AS THE BOARD HAS DONE, THAT EVEN WHEN THERE IS A CONTRACTUAL
PROVISION THE UNION MUST NOT APPEAL TO THE EMPLOYEES OR INDUCE THEM NOT
TO HANDLE THE GOODS.  SUCH A RULE EXPRESSES PRACTICAL JUDGMENT ON THE
EFFECT OF UNION CONDUCT IN THE FRAMEWORK OF ACTUAL LABOR DISPUTES AND
WHAT IS NECESSARY TO PRESERVE TO THE EMPLOYER THE FREEDOM OF CHOICE
THAT CONGRESS HAS DECREED.  ON SUCH A MATTER THE JUDGMENT OF THE BOARD
MUST BE GIVEN GREAT WEIGHT, AND WE OUGHT NOT SET AGAINST IT OUR
ESTIMATE OF THE RELEVANT FACTORS. 

THERE IS NO OCCASION TO CONSIDER THE INVALIDITY OF HOT CARGO
PROVISIONS AS SUCH.  THE SOLE CONCERN OF THE BOARD IN THE PRESENT CASES
WAS WHETHER THE CONTRACTUAL PROVISION COULD BE USED BY THE UNIONS AS A
DEFENSE TO A CHARGE OF INDUCING EMPLOYEES TO STRIKE OR REFUSE TO HANDLE
GOODS FOR OBJECTIVES PROSCRIBED BY SEC. 8(B)(4)(A).  AS WE HAVE SAID,
IT CANNOT BE SO USED.  BUT THE BOARD HAS NO GENERAL COMMISSION TO
POLICE COLLECTIVE BARGAINING AGREEMENTS AND STRIKE DOWN CONTRACTUAL
PROVISIONS IN WHICH THERE IS NO ELEMENT OF AN UNFAIR LABOR PRACTICE. 
CERTAINLY THE VOLUNTARY OBSERVANCE OF A HOT CARGO PROVISION BY AN
EMPLOYER DOES NOT CONSTITUTE A VIOLATION OF SEC. 8(B)(4)(A), AND ITS
MERE EXECUTION IS NOT, CONTRARY TO THE SUGGESTION OF TWO MEMBERS OF THE
BOARD IN THE GENUINE PARTS CASE, TRUCK DRIVERS UNION, 119 N.L.R.B. 399,
PRIMA FACIE EVIDENCE OF PROHIBITED INDUCEMENT OF EMPLOYEES.  IT DOES
NOT NECESSARILY FOLLOW FROM THE FACT THAT THE UNIONS CANNOT INVOKE THE
CONTRACTUAL PROVISION IN THE MANNER IN WHICH THEY SOUGHT TO DO SO IN
THE PRESENT CASES THAT IT MAY NOT, IN SOME TOTALLY DIFFERENT CONTEXT
NOT NOW BEFORE THE COURT, STILL HAVE LEGAL RADIATIONS AFFECTING THE
RELATIONS BETWEEN THE PARTIES.  ALL WE NEED NOW SAY IS THAT THE
CONTRACT CANNOT BE ENFORCED BY THE MEANS SPECIFICALLY PROHIBITED IN
SEC. 8(B)(4)(A). 

IN NOS. 273 AND 324, THE BOARD IN ITS BRIEF SUGGESTS THAT WE SHOULD
GO FURTHER AND FIND THAT THE CONTRACT PROVISIONS IN THESE CASES ARE
INVALID AS SUCH BECAUSE THE SECONDARY EMPLOYERS ARE COMMON CARRIERS
SUBJECT TO THE INTERSTATE COMMERCE ACT, 24 STAT. 379, AS AMENDED BY ACT
OF AUG. 9, 1935, 49 STAT. 543, AMENDED, 49 U.S.C. SECS. 301-327.  IN
THE RECENT GENUINE PARTS CASE, ALREADY REFERRED TO, TRUCK DRIVERS
UNION, 119 N.L.R.B. 399, TWO MEMBERS OF THE BOARD IN FACT TOOK THIS
POSITION, STATING THAT WHEN COMMON CARRIERS ARE INVOLVED HOT CARGO
CLAUSES ARE "INVALID AT THEIR INCEPTION AND CAN BE GIVEN NO OPERATIVE
COGNIZANCE SO FAR AS THE ADMINISTRATION OF THIS (THE LABOR MANAGEMENT
RELATIONS) ACT IS CONCERNED."  THIS IS TRUE, IT IS SAID, BECAUSE BY
ENTERING A CONTRACT NOT TO HANDLE THE GOODS THE CARRIER VIOLATES ITS
OBLIGATIONS UNDER THE INTERSTATE COMMERCE ACT TO PROVIDE
NONDISCRIMINATORY SERVICE AND TO OBSERVE JUST AND REASONABLE
PRACTICES.  SEE ACT OF AUG. 9, 1935, SEC. 216, 49 STAT. 558, AMENDED,
49 U.S.C. SEC. 316.  THE CARRIER'S CONSENT TO BOYCOTT IS THEREFORE
VOID, AND IT FOLLOWS THAT IT IS LIKEWISE VOID FOR ALL PURPOSES
CONCERNED WITH THE LABOR MANAGEMENT RELATIONS ACT.   SINCE THE GENUINE
PARTS DECISION WAS HANDED DOWN, THE INTERSTATE COMMERCE COMMISSION HAS
IN FACT RULED, IN GALVESTON TRUCK LINE CORP. V. ADA MOTOR LINES, INC.,
73 M.C.C. 617 (DEC. 16, 1957), THAT THE CARRIERS THERE INVOLVED WERE
NOT RELIEVED FROM THEIR OBLIGATIONS UNDER THE INTERSTATE COMMERCE ACT
BY A HOT CARGO CLAUSE.    IT IS SIGNIFICANT TO NOTE THE LIMITATIONS
THAT THE COMMISSION WAS CAREFUL TO DRAW ABOUT ITS DECISION IN THE
GALVESTON CASE.  IT WAS NOT CONCERNED TO DETERMINE, AS AN ABSTRACT
MATTER, THE LEGALITY OF HOT CARGO CLAUSES, BUT ONLY TO ENFORCE WHATEVER
DUTY WAS IMPOSED ON THE CARRIERS BY THE INTERSTATE COMMERCE ACT AND
THEIR CERTIFICATES.  THE COMMISSION RECOGNIZED THAT IT HAD NO GENERAL
AUTHORITY TO POLICE SUCH CONTRACTS, AND ITS SOLE CONCERN WAS TO
DETERMINE WHETHER A HOT CARGO PROVISION COULD BE A DEFENSE TO A CHARGE
THAT THE CARRIERS HAD VIOLATED SOME SPECIFIC STATUTORY DUTY.  IT IS THE
COMMISSION THAT IN THE FIRST INSTANCE MUST DETERMINE WHETHER, BECAUSE
OF CERTAIN COMPELLING CONSIDERATIONS, A CARRIER IS RELIEVED OF ITS
USUAL STATUTORY DUTY, AND NECESSARILY IT MAKES THIS DETERMINATION IN
THE CONTEXT OF THE PARTICULAR SITUATION PRESENTED BY THE CASE BEFORE
IT.  OTHER AGENCIES OF GOVERNMENT, IN INTERPRETING AND ADMINISTERING
THE PROVISIONS OF STATUTES SPECIFICALLY ENTRUSTED TO THEM FOR
ENFORCEMENT, MUST BE CAUTIOUS NOT TO COMPLICATE THE COMMISSION'S
ADMINISTRATION OF ITS OWN ACT BY ASSUMING AS A FIXED AND UNIVERSAL RULE
WHAT THE COMMISSION ITSELF MAY PREFER TO DEVELOP IN A MORE CAUTIOUS AND
PRAGMATIC MANNER THROUGH CASE-BY-CASE ADJUDICATION. 

BUT IT IS SAID THAT THE BOARD IS NOT ENFORCING THE INTERSTATE
COMMERCE ACT OR INTERFERING WITH THE COMMISSION'S ADMINISTRATION OF
THAT STATUTE, BUT SIMPLY INTERPRETING THE PROHIBITIONS OF ITS OWN
STATUTE IN A WAY CONSISTENT WITH THE CARRIER'S OBLIGATIONS UNDER THE
INTERSTATE COMMERCE ACT.  BECAUSE OF THAT ACT A CARRIER CANNOT
EFFECTIVELY CONSENT NOT TO HANDLE THE GOODS OF A SHIPPER.  SINCE HE
CANNOT EFFECTIVELY CONSENT, THERE IS, UNDER SEC. 8(B)(4)(A), A "STRIKE
OR CONCERTED REFUSAL," AND A "FORCING OR REQUIRING" OF THE CARRIER TO
CEASE HANDLING GOODS JUST AS MUCH AS IF NO HOT CARGO CLAUSE EXISTED. 
BUT THE FACT THAT THE CARRIER'S CONSENT IS NOT EFFECTIVE TO RELIEVE HIM
FROM CERTAIN OBLIGATIONS UNDER THE INTERSTATE COMMERCE ACT DOES NOT
NECESSARILY MEAN THAT IT IS INEFFECTIVE FOR ALL PURPOSES, NOR SHOULD A
DETERMINATION UNDER ONE STATUTE BE MECHANICALLY CARRIED OVER IN THE
INTERPRETATION OF ANOTHER STATUTE INVOLVING SIGNIFICANTLY DIFFERENT
CONSIDERATIONS AND LEGISLATIVE PURPOSES.  WHETHER A CARRIER HAS WITHOUT
JUSTIFICATION FAILED TO PROVIDE REASONABLE AND NONDISCRIMINATORY
SERVICE IS A QUESTION OF DEFINING THE CARRIER'S DUTY IN THE FRAMEWORK
OF THE NATIONAL TRANSPORTATION POLICY.  WHETHER THERE IS A "STRIKE OR
CONCERTED REFUSAL," OR A "FORCING OR REQUIRING" OF AN EMPLOYER TO CEASE
HANDLING GOODS IS A MATTER OF THE FEDERAL POLICY GOVERNING LABOR
RELATIONS.  THE BOARD IS NOT CONCERNED WITH WHETHER THE CARRIER HAS
PERFORMED ITS OBLIGATIONS TO THE SHIPPER, BUT WHETHER THE UNION HAS
PERFORMED ITS OBLIGATION NOT TO INDUCE EMPLOYEES IN THE MANNER
PROSCRIBED BY SEC. 8(B)(4)(A).  COMMON FACTORS MAY EMERGE IN THE
ADJUDICATION OF THESE QUESTIONS, BUT THEY ARE, NEVERTHELESS, DISTINCT
QUESTIONS INVOLVING INDEPENDENT CONSIDERATIONS.  THIS IS MADE CLEAR BY
A SITUATION IN WHICH THE CARRIER HAS FREELY AGREED WITH THE UNION TO
ENGAGE IN A BOYCOTT.  HE MAY HAVE FAILED IN HIS OBLIGATIONS UNDER THE
INTERSTATE COMMERCE ACT, BUT THERE CLEARLY IS NO VIOLATION OF SEC.
8(B)(4)(A); THERE HAS BEEN NO PROHIBITED INDUCEMENT OF EMPLOYEES. 

THE CASE IS NOT LIKE THAT IN SOUTHERN S.S. CO. V. LABOR BOARD, 316
U.S. 31, WHERE THE BOARD WAS ADMONISHED NOT TO APPLY THE POLICIES OF
ITS STATUTE SO SINGLE-MINDEDLY AS TO IGNORE OTHER EQUALLY IMPORTANT
CONGRESSIONAL OBJECTIVES.  A SPECIFIC REMEDY ORDERED BY THE BOARD -
REINSTATEMENT OF EMPLOYEES WHO HAD ENGAGED IN A STRIKE - WORKED
DIRECTLY TO WEAKEN THE EFFECTIVENESS OF A STATUTORY PROHIBITION AGAINST
MUTINY BY MEMBERS OF THE CREW OF A VESSEL.  PRESUMED ILLEGALITY UNDER
THE MUTINY STATUTE WAS NOT USED TO ESTABLISH A VIOLATION OF THE LABOR
STATUTE.  IT WAS RELIED ON TO ESTABLISH AN ABUSE OF DISCRETION IN
GIVING A REMEDY.  MUCH LESS WAS THERE ANY SUGGESTION THAT THE BOARD
SHOULD ABANDON AN INDEPENDENT INQUIRY INTO THE REQUIREMENTS OF ITS OWN
STATUTE AND MECHANICALLY ACCEPT STANDARDS ELABORATED BY ANOTHER AGENCY
UNDER A DIFFERENT STATUTE FOR WHOLLY DIFFERENT PURPOSES. 

THE UNIONS IN NOS. 273 AND 324 VIOLATED SEC. 8(B)(4)(A) FOR THE
REASONS SET FORTH IN THE FIRST PART OF THIS OPINION, AND NOT AS A
CONSEQUENCE OF PROHIBITIONS IN THE INTERSTATE COMMERCE ACT. 

THE JUDGMENTS IN NOS. 127 AND 324 ARE AFFIRMED.  THE JUDGMENT IN NO.
273 IS REVERSED AND THE CAUSE REMANDED TO THE COURT OF APPEALS WITH
INSTRUCTIONS TO GRANT ENFORCEMENT OF THE ORDER OF THE BOARD.  NOS. 127
AND 324 - AFFIRMED.  NO. 273 - REVERSED AND REMANDED. 

FN1  WE THEREFORE FIND IT UNNECESSARY TO CONSIDER OTHER CONTENTIONS
NOW MADE BY PETITIONERS ON ISSUES RESOLVED AGAINST THEM BY BOTH THE
BOARD AND THE COURT OF APPEALS: (1) WHETHER STEINERT, WHEN HE
INSTRUCTED THE EMPLOYEES TO STOP HANDLING THE DOORS, ACTED AS A
REPRESENTATIVE OF HAVSTAD AND JENSEN, THE EMPLOYER, OR IN HIS CAPACITY
AS A MEMBER OF THE UNION, BOUND TO ENFORCE ITS RULES.  (2) WHETHER
THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE BOARD'S CONCLUSION THAT
THE UNION CONDUCT WAS NOT PRIMARY ACTIVITY OUTSIDE THE SCOPE OF SEC.
8(B)(4)(A).  SEE IRVINE V. CALIFORNIA, 347 U.S. 128, 129-130; RULE
23(C) OF THE REVISED RULES OF THE SUPREME COURT OF THE UNITED STATES. 

FN2  CERTAIN CONTENTIONS OF THE UNIONS IN NOS. 273 AND 324 CAN BE
QUICKLY DISPOSED OF.  THE CONTROVERSY WAS NOT RENDERED MOOT SIMPLY
BECAUSE, AFTER THE FILING OF THE CHARGES AND BEFORE THE COMPLAINT
ISSUED, PICKETING HAD CEASED AND THE MACHINISTS HAD ENTERED INTO A
COLLECTIVE BARGAINING AGREEMENT CONTAINING A NO-STRIKE CLAUSE.  WE
CANNOT SAY THAT THERE WAS NO DANGER OF RECURRENT VIOLATION, SEE UNITED
STATES V. W.T. GRANT CO., 345 U.S. 629, 632-633, AND THAT THE BOARD WAS
NOT JUSTIFIED IN CONCLUDING THAT, UNDER ALL THE CIRCUMSTANCES, IT WAS
DESIRABLE TO ADD THE SANCTION OF ITS ORDER TO WHATEVER AGREEMENT THE
PARTIES HAD REACHED.  THE MACHINISTS' CONTENTION THAT THEIR ACTIVITY
WAS ONLY LEGITIMATE PRIMARY ACTIVITY IS FORECLOSED BY THE BOARD'S
CONTRARY FINDING ON THE BASIS OF CONFLICTING EVIDENCE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THE COURT CONCEDES THAT THE VOLUNTARY OBSERVANCE OF A HOT CARGO
PROVISION BY AN EMPLOYER DOES NOT CONSTITUTE A VIOLATION OF SEC.
8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, (FN1) 61 STAT. 136,
140, 29 U.S.C. SEC. 158(B)(4)(A).  I FAIL TO SEE, THEREFORE, WHY
ENFORCEMENT OF A PROVISION IN A COLLECTIVE BARGAINING AGREEMENT
OUTLAWING WORK IN NONUNION GOODS VIOLATES THE ACT. 

THE PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT IN THE
CARPENTERS CASE IS TYPICAL OF THOSE IN ISSUE HERE: 

"WORKMEN SHALL NOT BE REQUIRED TO HANDLE NON-UNION MATERIAL." 

THAT PROVISION WAS BARGAINED FOR LIKE EVERY OTHER CLAUSE IN THE
COLLECTIVE AGREEMENT.  IT WAS AGREED TO BY THE EMPLOYER.  HOW IMPORTANT
IT MAY HAVE BEEN TO THE PARTIES - HOW HIGH OR LOW IN THEIR SCALE OF
VALUES - WE DO NOT KNOW.  BUT ON THESE RECORDS IT WAS THE PRODUCT OF
BARGAINING, NOT OF COERCION.  THE COURT CONCEDES THAT ITS INCLUSION IN
THE CONTRACTS MAY NOT BE CALLED "FORCING OR REQUIRING" THE EMPLOYER TO
CEASE HANDLING OTHER PRODUCTS WITHIN THE MEANING OF THE ACT.  ENFORCING
THE COLLECTIVE BARGAINING AGREEMENT - STANDING BY ITS TERMS - IS NOT
ONE OF THE COERCIVE PRACTICES AT WHICH THE ACT WAS AIMED.  ENFORCEMENT
OF THESE AGREEMENTS IS CONDUCIVE TO PEACE.  DISREGARD OF COLLECTIVE
AGREEMENTS - THE FLOUTING OF THEM - IS DISRUPTIVE.  THAT WAS THE
PHILOSOPHY OF THE CONWAY'S EXPRESS DECISION OF THE LABOR BOARD, 87
N.L.R.B. 972, AFF'D SUB NOM.  RABOUIN V. LABOR BOARD, 195 F.2D 906; AND
I THINK IT SQUARES WITH THE ACT. 

THE PRESENT DECISION IS CAPRICIOUS.  THE BOYCOTT IS LAWFUL IF THE
EMPLOYER AGREES TO ABIDE BY THIS COLLECTIVE BARGAINING AGREEMENT.  IT
IS UNLAWFUL IF THE EMPLOYER RENEGES. 

THE HOSTILE ATTITUDE OF LABOR AGAINST PATRONIZING OR HANDLING
"UNFAIR" GOODS GOES DEEP INTO OUR HISTORY.  IT IS NOT PECULIARLY
AMERICAN, THOUGH IT HAS FOUND EXPRESSION IN VARIOUS FORMS IN OUR
HISTORY (FN2) FROM THE REFUSAL OF AMERICANS TO BUY BRITISH TEA, TO THE
REFUSAL OF ABOLITIONISTS TO BUY SLAVE-MADE PRODUCTS, TO THE REFUSAL OF
UNIONS TO WORK ON CONVICT-MADE OR ON OTHER NONUNION GOODS.  UNIONS HAVE
ADHERED TO THE PRACTICE BECAUSE OF THEIR PRINCIPLE OF MUTUAL AID AND
PROTECTION.   SECTION 7 OF THE ACT, INDEED, RECOGNIZES THAT PRINCIPLE
IN ITS GUARANTEE THAT "EMPLOYEES SHALL HAVE THE RIGHT  ...  TO ENGAGE
IN  ...  CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING
OR OTHER MUTUAL AID OR PROTECTION."  WE NOTICED IN APEX HOSIERY CO. V.
LEADER, 310 U.S. 469, 503, THAT THE ELIMINATION OF "COMPETITION FROM
NON-UNION MADE GOODS" WAS A LEGITIMATE LABOR OBJECTIVE. 

THE REASON AN EMPLOYER MAY ALSO AGREE TO THAT PHASE OF UNION
POLICIES, THE REASON HE MAY ACQUIESCE IN THE INCLUSION OF SUCH A CLAUSE
IN A PARTICULAR COLLECTIVE AGREEMENT, MAY ONLY BE SURMISED.  PERHAPS HE
SEES EYE TO EYE WITH THE UNION.  PERHAPS HE RECEIVES IMPORTANT
CONCESSIONS IN EXCHANGE FOR HIS ASSISTANCE TO THE UNION. 

CERTAIN IT IS THAT WHERE HE VOLUNTARILY AGREES TO THE "UNFAIR" GOODS
CLAUSE HE IS NOT FORCED OR COERCED IN THE STATUTORY SENSE.  WHAT JUDGE
CLARK SAID IN MILK DRIVERS & DAIRY EMPLOYEES V. LABOR BOARD, 245 F.2D
817, 822, HAS NOT YET BEEN ANSWERED: 

"IN THE ABSENCE OF A PRIOR AGREEMENT, WORK TO BE DONE BY EMPLOYEES IS
DETERMINED UNILATERALLY BY THE EMPLOYER; BUT WHERE A COLLECTIVE
AGREEMENT SPECIFIES THE WORK TO BE DONE, THAT AGREEMENT DEFINES THE
NORMAL WORK OF THE EMPLOYEES AND A 'STRIKE' OR 'REFUSAL' MUST BE A
REFUSAL TO DO THAT NORMAL WORK.  THE EMPLOYER OBVIOUSLY CANNOT IMPOSE
ADDITIONAL WORK ON THE EMPLOYEES CONTRARY TO THE AGREEMENT AND THEN
CHARGE THAT THEIR REFUSAL TO PERFORM IT CONSTITUTES AN UNFAIR
PRACTICE.  WE SEE NO DIFFERENCE IN THIS RESPECT BETWEEN TASKS EXEMPTED
BY THE AGREEMENT BECAUSE THEY ARE OFFENSIVE TO HEALTH OR SAFETY AND
TASKS EXEMPTED BECAUSE THEIR PERFORMANCE IS CONTRARY TO THE INTERESTS
OF ORGANIZED LABOR AND, IN THIS CASE, THE LOCAL ITSELF." 

WE ACT TODAY MORE LIKE A COMMITTEE OF THE CONGRESS AND THE COURT.  WE
STRAIN TO OUTLAW BARGAINING CONTRACTS LONG ACCEPTED, LONG USED.  (FN3)
PERHAPS THESE PARTICULAR PROVISIONS HAVE EVILS IN THEM THAT SHOULD BE
DECLARED CONTRARY TO THE PUBLIC INTEREST.  THEY ARE, HOWEVER, SO MUCH A
PART OF THE VERY FABRIC OF COLLECTIVE BARGAINING THAT WE SHOULD LEAVE
THIS POLICY-MAKING TO CONGRESS AND NOT RUSH IN TO UNDO WHAT A CENTURY
OR MORE OF EXPERIENCE HAS IMBEDDED INTO LABOR-MANAGEMENT AGREEMENTS.  I
HAVE NOT FOUND A WORD OF LEGISLATIVE HISTORY WHICH EVEN INTIMATES THAT
THESE "UNFAIR" GOODS PROVISIONS OF COLLECTIVE BARGAINING AGREEMENTS ARE
UNLAWFUL. 

FN1  THAT PROVISION OF THE ACT READS AS FOLLOWS: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS
AGENTS: 

*         *         *         *         * 

"(4) TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS:  (A) FORCING OR
REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR
EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON; ...  ." 

FN2  SEE MILLIS AND MONTGOMERY, ORGANIZED LABOR (1945), 581 ET SEQ.;
WOLMAN, THE BOYCOTT IN AMERICAN TRADE UNIONS (1916), CC. II, III. 

FN3  "SYMPATHETIC SUPPORT BY MEMBERS OF ONE UNION FOR ORGANIZED
WORKERS IN OTHER PLANTS OR IN OTHER TRADES AND INDUSTRIES OFTEN FINDS
EXPRESSION IN UNION AGREEMENTS.  ANY UNION LOOKS UPON NONUNION
CONDITIONS OF WORK AS A THREAT TO ITS OWN UNION WORKING STANDARDS. 
CONSEQUENTLY IT IS OFTEN PROVIDED IN AGREEMENTS THAT THE EMPLOYER MAY
NOT REQUIRE EMPLOYEES TO WORK ON MATERIAL COMING FROM OR DESTINED FOR
MANUFACTURERS NOT OPERATING UNDER UNION AGREEMENTS.  OTHER AGREEMENTS
LIMIT THE PROHIBITION TO MATERIAL COMING FROM EMPLOYERS WHO HAVE BEEN
DECLARED 'UNFAIR' TO ORGANIZED LABOR BY AN AFFILIATED UNION.  THIS
REDUCES CONSIDERABLY THE LIST OF RESTRICTED MANUFACTURERS, SINCE MANY
EMPLOYERS WHO DO NOT DEAL WITH ORGANIZED LABOR HAVE NEVER BEEN DECLARED
'UNFAIR' BY UNIONS HAVING NOMINAL JURISDICTION.  ANOTHER ALTERNATIVE
MERELY PROHIBITS WORK ON MATERIALS COMING FROM OR DESTINED FOR
MANUFACTURERS WHOSE EMPLOYEES ARE ON STRIKE.  AGREEMENTS COVERING
FACTORY PRODUCTION WORKERS MAY REQUIRE THAT ALL BUILDING REPAIRS AND
MAINTENANCE WORK AS WELL AS ALL HAULING OF GOODS AND MATERIALS INTO AND
AWAY FROM THE EMPLOYER'S PREMISES MUST BE DONE BY UNION WORKERS." 
UNION AGREEMENT PROVISIONS, U.S. DEPT. OF LABOR, H.R. DOC. NO. 723,
77TH CONG., 2D SESS. 32.  AND SEE COLLECTIVE BARGAINING PROVISIONS,
U.S. DEPT. OF LABOR, H.R. DOC. NO. 282, 81ST CONG., 1ST SESS. 37;
STRIKES AND LOCKOUTS (PRELIMINARY DRAFT), U.S. DEPT. OF LABOR, FEBRUARY
1947, PP. 28-32; STRIKES AND LOCKOUTS, BUREAU OF NATIONAL AFFAIRS,
1956, 77:351. 
..END :























KENT V. DULLES 357 U.S. 116 


NO. 481.  ARGUED APRIL 10, 1958 - DECIDED JUNE 16, 1958 - 101 U.S. APP.
D.C. 278, 239, 248 F.2D 600, 561, REVERSED. 


AT A TIME WHEN AN ACT OF CONGRESS REQUIRED A PASSPORT FOR FOREIGN
TRAVEL BY CITIZENS IF A STATE OF NATIONAL EMERGENCY HAD BEEN DECLARED
BY THE PRESIDENT AND WHEN THE PROCLAMATION NECESSARY TO MAKE THE ACT
EFFECTIVE HAD BEEN MADE, THE SECRETARY OF STATE DENIED PASSPORTS TO
PETITIONERS BECAUSE OF THEIR ALLEGED COMMUNISTIC BELIEFS AND
ASSOCIATIONS AND THEIR REFUSAL TO FILE AFFIDAVITS CONCERNING PRESENT OR
PAST MEMBERSHIP IN THE COMMUNIST PARTY.  HELD:  THE SECRETARY WAS NOT
AUTHORIZED TO DENY THE PASSPORTS FOR THESE REASONS UNDER THE ACT OF
JULY 3, 1926, 22 U.S.C. SEC. 211A, OR SEC. 215 OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 8 U.S.C. SEC. 1185.  PP. 117-130. 

(A)  THE RIGHT TO TRAVEL IS A PART OF THE "LIBERTY" OF WHICH A
CITIZEN CANNOT BE DEPRIVED WITHOUT DUE PROCESS OF LAW UNDER THE FIFTH
AMENDMENT.  PP. 125-127. 

(B)  THE BROAD POWER OF THE SECRETARY UNDER 22 U.S.C. SEC. 211A TO
ISSUE PASSPORTS, WHICH HAS LONG BEEN CONSIDERED "DISCRETIONARY," HAS
BEEN CONSTRUED GENERALLY TO AUTHORIZE THE REFUSAL OF A PASSPORT ONLY
WHEN THE APPLICANT (1) IS NOT A CITIZEN OR A PERSON OWING ALLEGIANCE TO
THE UNITED STATES, OR (2) WAS ENGAGING IN CRIMINAL OR UNLAWFUL
CONDUCT.  PP. 124-125, 127-128. 

(C)  THIS COURT HESITATES TO IMPUTE TO CONGRESS, WHEN IN 1952 IT MADE
A PASSPORT NECESSARY FOR FOREIGN TRAVEL AND LEFT ITS ISSUANCE TO THE
DISCRETION OF THE SECRETARY OF STATE, A PURPOSE TO GIVE HIM UNBRIDLED
DISCRETION TO WITHHOLD A PASSPORT FROM A CITIZEN FOR ANY SUBSTANTIVE
REASON HE MAY CHOOSE.  P. 128. 

(D)  NO QUESTION CONCERNING THE EXERCISE OF THE WAR POWER IS INVOLVED
IN THIS CASE.  P. 128. 

(E)  IF A CITIZEN'S LIBERTY TO TRAVEL IS TO BE REGULATED, IT MUST BE
PURSUANT TO THE LAW-MAKING FUNCTIONS OF CONGRESS, ANY DELEGATION OF THE
POWER MUST BE SUBJECT TO ADEQUATE STANDARDS, AND SUCH DELEGATED
AUTHORITY WILL BE NARROWLY CONSTRUED.  P. 129. 

(F)  THE ACT OF JULY 3, 1926, 22 U.S.C. SEC. 211A, AND SEC. 215 OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952, 8 U.S.C. SEC. 1185, DO NOT
DELEGATE TO THE SECRETARY AUTHORITY TO WITHHOLD PASSPORTS TO CITIZENS
BECAUSE OF THEIR BELIEFS OR ASSOCIATIONS, AND ANY ACT OF CONGRESS
PURPORTING TO DO SO WOULD RAISE GRAVE CONSTITUTIONAL QUESTIONS.  PP.
129-130. 

(G)  THE ONLY ACT OF CONGRESS EXPRESSLY CURTAILING THE MOVEMENT OF
COMMUNISTS ACROSS OUR BORDERS, SECS. 2 AND 6 OF THE INTERNAL SECURITY
ACT OF 1950, HAS NOT YET BECOME EFFECTIVE, BECAUSE THE COMMUNIST PARTY
HAS NOT REGISTERED UNDER THAT ACT AND THERE IS NOT IN EFFECT A FINAL
ORDER OF THE BOARD REQUIRING IT TO DO SO.  P. 121, N. 3, P. 130. 

KENT ET AL. V. DULLES, SECRETARY OF STATE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS TWO APPLICATIONS FOR PASSPORTS, DENIED BY THE
SECRETARY OF STATE.  ONE WAS BY ROCKWELL KENT WHO DESIRED TO VISIT
ENGLAND AND ATTEND A MEETING OF AN ORGANIZATION KNOWN AS THE "WORLD
COUNCIL OF PEACE" IN HELSINKI, FINLAND.  THE DIRECTOR OF THE PASSPORT
OFFICE INFORMED KENT THAT ISSUANCE OF A PASSPORT WAS PRECLUDED BY SEC.
51.135 OF THE REGULATIONS PROMULGATED BY THE SECRETARY OF STATE ON TWO
GROUNDS:  (FN1)  (1) THAT HE WAS A COMMUNIST AND (2) THAT HE HAD HAD "A
CONSISTENT AND PROLONGED ADHERENCE TO THE COMMUNIST PARTY LINE."  THE
LETTER OF DENIAL SPECIFIED IN SOME DETAIL THE FACTS ON WHICH THOSE
CONCLUSIONS WERE BASED.  KENT WAS ALSO ADVISED OF HIS RIGHT TO AN
INFORMAL HEARING UNDER SEC. 51.137 OF THE REGULATIONS.   BUT HE WAS
ALSO TOLD THAT WHETHER OR NOT A HEARING WAS REQUESTED IT WOULD BE
NECESSARY, BEFORE A PASSPORT WOULD BE ISSUED, TO SUBMIT AN AFFIDAVIT AS
TO WHETHER HE WAS THEN OR EVER HAD BEEN A COMMUNIST.  (FN2)  KENT DID
NOT ASK FOR A HEARING BUT FILED A NEW PASSPORT APPLICATION LISTING
SEVERAL EUROPEAN COUNTRIES HE DESIRED TO VISIT.   WHEN ADVISED THAT A
HEARING WAS STILL AVAILABLE TO HIM, HIS ATTORNEY REPLIED THAT KENT TOOK
THE POSITION THAT THE REQUIREMENT OF AN AFFIDAVIT CONCERNING COMMUNIST
PARTY MEMBERSHIP "IS UNLAWFUL AND THAT FOR THAT REASON AND AS A MATTER
OF CONSCIENCE," HE WOULD NOT SUPPLY ONE.  HE DID, HOWEVER, HAVE A
HEARING AT WHICH THE PRINCIPAL EVIDENCE AGAINST HIM WAS FROM HIS BOOK
IT'S ME O LORD, WHICH KENT AGREED WAS ACCURATE.  HE AGAIN REFUSED TO
SUBMIT THE AFFIDAVIT, MAINTAINING THAT ANY MATTERS UNRELATED TO THE
QUESTION OF HIS CITIZENSHIP WERE IRRELEVANT TO THE DEPARTMENT'S
CONSIDERATION OF HIS APPLICATION.  THE DEPARTMENT ADVISED HIM THAT NO
FURTHER CONSIDERATION OF HIS APPLICATION WOULD BE GIVEN UNTIL HE
SATISFIED THE REQUIREMENTS OF THE REGULATIONS. 

THEREUPON KENT SUED IN THE DISTRICT COURT FOR DECLARATORY RELIEF. 
THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR RESPONDENT.  ON APPEAL
THE CASE OF KENT WAS HEARD WITH THAT OF DR. WALTER BRIEHL, A
PSYCHIATRIST.  WHEN BRIEHL APPLIED FOR A PASSPORT, THE DIRECTOR OF THE
PASSPORT OFFICE ASKED HIM TO SUPPLY THE AFFIDAVIT COVERING MEMBERSHIP
IN THE COMMUNIST PARTY.  BRIEHL, LIKE KENT, REFUSED.  THE DIRECTOR THEN
TENTATIVELY DISAPPROVED THE APPLICATION ON THE FOLLOWING GROUNDS: 

"IN YOUR CASE IT HAS BEEN ALLEGED THAT YOU WERE A COMMUNIST. 
SPECIFICALLY IT IS ALLEGED THAT YOU WERE A MEMBER OF THE LOS ANGELES
COUNTY COMMUNIST PARTY; THAT YOU WERE A MEMBER OF THE BOOKSHOP
ASSOCIATION, ST. LOUIS, MISSOURI; THAT YOU HELD COMMUNIST PARTY
MEETINGS; THAT IN 1936 AND 1941 YOU CONTRIBUTED ARTICLES TO THE
COMMUNIST PUBLICATION 'SOCIAL WORK TODAY'; THAT IN 1939, 1940 AND 1941
YOU WERE A SPONSOR TO RAISE FUNDS FOR VETERANS OF THE ABRAHAM LINCOLN
BRIGADE IN CALLING ON THE PRESIDENT OF THE UNITED STATES BY A PETITION
TO DEFEND THE RIGHTS OF THE COMMUNIST PARTY AND ITS MEMBERS; THAT YOU
CONTRIBUTED TO THE CIVIL RIGHTS CONGRESS BAIL FUND TO BE USED IN
RAISING BAIL ON BEHALF OF CONVICTED COMMUNIST LEADERS IN NEW YORK CITY;
THAT YOU WERE A MEMBER OF THE HOLLYWOOD ARTS, SCIENCES AND PROFESSIONS
COUNCIL AND A CONTACT OF THE LOS ANGELES COMMITTEE FOR PROTECTION OF
FOREIGN BORN AND A CONTACT OF THE FREEDOM STAGE, INCORPORATED." 

THE DIRECTOR ADVISED BRIEHL OF HIS RIGHT TO A HEARING BUT STATED THAT
WHETHER OR NOT A HEARING WAS HELD, AN AFFIDAVIT CONCERNING MEMBERSHIP
IN THE COMMUNIST PARTY WOULD BE NECESSARY.  BRIEHL ASKED FOR A HEARING
AND ONE WAS HELD.  AT THAT HEARING HE RAISED THREE OBJECTIONS:  (1)
THAT HIS "POLITICAL AFFILIATIONS" WERE IRRELEVANT TO HIS RIGHT TO A
PASSPORT; (2) THAT "EVERY AMERICAN CITIZEN HAS THE RIGHT TO TRAVEL
REGARDLESS OF POLITICS"; AND (3) THAT THE BURDEN WAS ON THE DEPARTMENT
TO PROVE ILLEGAL ACTIVITIES BY BRIEHL.  BRIEHL PERSISTED IN HIS REFUSAL
TO SUPPLY THE AFFIDAVIT.  BECAUSE OF THAT REFUSAL BRIEHL WAS ADVISED
THAT THE BOARD OF PASSPORT APPEALS COULD NOT UNDER THE REGULATIONS
ENTERTAIN AN APPEAL. 

BRIEHL FILED HIS COMPLAINT IN THE DISTRICT COURT WHICH HELD THAT HIS
CASE WAS INDISTINGUISHABLE FROM KENT'S AND DISMISSED THE COMPLAINT. 

THE COURT OF APPEALS HEARD THE TWO CASES EN BANC AND AFFIRMED THE
DISTRICT COURT BY A DIVIDED VOTE.  101 U.S. APP. D.C. 278, 239, 248
F.2D 600, 561.  THE CASES ARE HERE ON WRIT OF CERTIORARI.  355 U.S.
881. 

THE COURT FIRST NOTED THE FUNCTION THAT THE PASSPORT PERFORMED IN
AMERICAN LAW IN THE CASE OF URTETIQUI V. D'ARBEL, 9 PET. 692, 699,
DECIDED IN 1835: 

"THERE IS NO LAW OF THE UNITED STATES, IN ANY MANNER REGULATING THE
ISSUING OF PASSPORTS, OR DIRECTING UPON WHAT EVIDENCE IT MAY BE DONE,
OR DECLARING THEIR LEGAL EFFECT.  IT IS UNDERSTOOD, AS MATTER OF
PRACTICE, THAT SOME EVIDENCE OF CITIZENSHIP IS REQUIRED, BY THE
SECRETARY OF STATE, BEFORE ISSUING A PASSPORT.  THIS, HOWEVER, IS
ENTIRELY DISCRETIONARY WITH HIM.  NO INQUIRY IS INSTITUTED BY HIM TO
ASCERTAIN THE FACT OF CITIZENSHIP, OR ANY PROCEEDINGS HAD, THAT WILL IN
ANY MANNER BEAR THE CHARACTER OF A JUDICIAL INQUIRY.  IT IS A DOCUMENT,
WHICH, FROM ITS NATURE AND OBJECT, IS ADDRESSED TO FOREIGN POWERS;
PURPORTING ONLY TO BE A REQUEST, THAT THE BEARER OF IT MAY PASS SAFELY
AND FREELY; AND IS TO BE CONSIDERED RATHER IN THE CHARACTER OF A
POLITICAL DOCUMENT, BY WHICH THE BEARER IS RECOGNIZED, IN FOREIGN
COUNTRIES, AS AN AMERICAN CITIZEN; AND WHICH, BY USAGE AND THE LAW OF
NATIONS, IS RECEIVED AS EVIDENCE OF THE FACT." 

A PASSPORT NOT ONLY IS OF GREAT VALUE - INDEED NECESSARY - ABROAD; IT
IS ALSO AN AID IN ESTABLISHING CITIZENSHIP FOR PURPOSES OF RE-ENTRY
INTO THE UNITED STATES.  SEE BROWDER V. UNITED STATES, 312 U.S. 335,
339; 3 MOORE, DIGEST OF INTERNATIONAL LAW (1906), SEC. 512.  BUT
THROUGHOUT MOST OF OUR HISTORY - UNTIL INDEED QUITE RECENTLY - A
PASSPORT, THOUGH A GREAT CONVENIENCE IN FOREIGN TRAVEL, WAS NOT A LEGAL
REQUIREMENT FOR LEAVING OR ENTERING THE UNITED STATES.  SEE JAFFE, THE
RIGHT TO TRAVEL:  THE PASSPORT PROBLEM, 35 FOREIGN AFFAIRS 17.  APART
FROM MINOR EXCEPTIONS TO BE NOTED, IT WAS FIRST (FN3) MADE A
REQUIREMENT BY SEC. 215 OF THE ACT OF JUNE 27, 1952, 66 STAT. 190, 8
U.S.C. SEC. 1185, WHICH STATES THAT, AFTER A PRESCRIBED PROCLAMATION BY
THE PRESIDENT, IT IS "UNLAWFUL FOR ANY CITIZEN OF THE UNITED STATES TO
DEPART FROM OR ENTER, OR ATTEMPT TO DEPART FROM OR ENTER, THE UNITED
STATES UNLESS HE BEARS A VALID PASSPORT."  (FN4)  AND THE PROCLAMATION
NECESSARY TO MAKE THE RESTRICTIONS OF THIS ACT APPLICABLE AND IN FORCE
HAS BEEN MADE.  (FN5) 

PRIOR TO 1952 THERE WERE NUMEROUS LAWS ENACTED BY CONGRESS REGULATING
PASSPORTS AND MANY DECISIONS, RULINGS, AND REGULATIONS BY THE EXECUTIVE
DEPARTMENT CONCERNING THEM.  THUS IN 1803 CONGRESS MADE IT UNLAWFUL FOR
AN OFFICIAL KNOWINGLY TO ISSUE A PASSPORT TO AN ALIEN CERTIFYING THAT
HE IS A CITIZEN.  2 STAT. 205.  IN 1815, JUST PRIOR TO THE TERMINATION
OF THE WAR OF 1812, IT MADE IT ILLEGAL FOR A CITIZEN TO "CROSS THE
FRONTIER" INTO ENEMY TERRITORY, TO BOARD VESSELS OF THE ENEMY ON WATERS
OF THE UNITED STATES OR TO VISIT ANY OF HIS CAMPS WITHIN THE LIMITS OF
THE UNITED STATES, "WITHOUT A PASSPORT FIRST OBTAINED" FROM THE
SECRETARY OF STATE OR OTHER DESIGNATED OFFICIAL.  3 STAT. 199-200.  THE
SECRETARY OF STATE TOOK SIMILAR STEPS DURING THE CIVIL WAR.  SEE DEPT.
OF STATE, THE AMERICAN PASSPORT (1898), 50.  IN 1850 CONGRESS RATIFIED
A TREATY WITH SWITZERLAND REQUIRING PASSPORTS FROM CITIZENS OF THE TWO
NATIONS.  11 STAT. 587, 589-590.  FINALLY IN 1856 CONGRESS ENACTED WHAT
REMAINS TODAY AS OUR BASIC PASSPORT STATUTE.  PRIOR TO THAT TIME
VARIOUS FEDERAL OFFICIALS, STATE AND LOCAL OFFICIALS, AND NOTARIES
PUBLIC HAD UNDERTAKEN TO ISSUE EITHER CERTIFICATES OF CITIZENSHIP OR
OTHER DOCUMENTS IN THE NATURE OF LETTERS OF INTRODUCTION TO FOREIGN
OFFICIALS REQUESTING TREATMENT ACCORDING TO THE USAGES OF INTERNATIONAL
LAW.  BY THE ACT OF AUGUST 18, 1856, 11 STAT. 52, 60-61, 22 U.S.C. SEC.
211A, CONGRESS PUT AN END TO THOSE PRACTICES.  (FN6) THIS PROVISION, AS
CODIFIED BY THE ACT OF JULY 3, 1926, 44 STAT., PART 2, 887, READS: 

"THE SECRETARY OF STATE MAY GRANT AND ISSUE PASSPORTS  ...  UNDER
SUCH RULES AS THE PRESIDENT SHALL DESIGNATE AND PRESCRIBE FOR AND ON
BEHALF OF THE UNITED STATES, AND NO OTHER PERSON SHALL GRANT, ISSUE, OR
VERIFY SUCH PASSPORTS." 

THUS FOR MOST OF OUR HISTORY A PASSPORT WAS NOT A CONDITION TO ENTRY
OR EXIT. 

IT IS TRUE THAT, AT INTERVALS, A PASSPORT HAS BEEN REQUIRED FOR
TRAVEL.  MENTION HAS ALREADY BEEN MADE OF THE RESTRICTIONS IMPOSED
DURING THE WAR OF 1812 AND DURING THE CIVIL WAR.  A LIKE RESTRICTION,
WHICH WAS THE FORERUNNER OF THAT CONTAINED IN THE 1952 ACT, WAS IMPOSED
BY CONGRESS IN 1918. 

THE ACT OF MAY 22, 1918, 40 STAT. 559, MADE IT UNLAWFUL, WHILE A
PRESIDENTIAL PROCLAMATION WAS IN FORCE, FOR A CITIZEN TO LEAVE OR ENTER
THE UNITED STATES "UNLESS HE BEARS A VALID PASSPORT."  SEE H.R. REP.
NO. 485, 65TH CONG., 2D SESS.  THAT STATUTE WAS INVOKED BY PRESIDENTIAL
PROCLAMATION NO. 1473 ON AUGUST 8, 1918, 40 STAT.  1829, WHICH
CONTINUED IN EFFECT UNTIL MARCH 3, 1921.  41 STAT. 1359. 

THE 1918 ACT WAS EFFECTIVE ONLY IN WARTIME.  IT WAS AMENDED IN 1941
SO THAT IT COULD BE INVOKED IN THE THEN-EXISTING EMERGENCY.  55 STAT.
252.  SEE S. REP. NO. 444, 77TH CONG., 1ST SESS.  IT WAS INVOKED BY
PRESIDENTIAL PROCLAMATION NO. 2523, NOVEMBER 14, 1941, 55 STAT. 1696. 
THAT EMERGENCY CONTINUED UNTIL APRIL 28, 1952.  PROC. NO. 2974, 66
STAT.  C31.  CONGRESS EXTENDED THE STATUTORY PROVISIONS UNTIL APRIL 1,
1953.  66 STAT. 54, 57, 96, 137, 330, 333.  IT WAS DURING THIS
EXTENSION PERIOD THAT THE SECRETARY OF STATE ISSUED THE REGULATIONS
HERE COMPLAINED OF.  (FN7) 

UNDER THE 1926 ACT AND ITS PREDECESSOR A LARGE BODY OF PRECEDENTS
GREW UP WHICH REPEAT OVER AND AGAIN THAT THE ISSUANCE OF PASSPORTS IS
"A DISCRETIONARY ACT" ON THE PART OF THE SECRETARY OF STATE.   THE
SCHOLARS, (FN8) THE COURTS, (FN9) THE CHIEF EXECUTIVE, (FN10) AND THE
ATTORNEYS GENERAL, (FN11) ALL SO SAID.  THIS LONG-CONTINUED EXECUTIVE
CONSTRUCTION SHOULD BE ENOUGH, IT IS SAID, TO WARRANT THE INFERENCE
THAT CONGRESS HAD ADOPTED IT.  SEE ALLEN V. GRAND CENTRAL AIRCRAFT CO.,
347 U.S. 535, 544-545; UNITED STATES V. ALLEN-BRADLEY CO., 352 U.S.
306, 310.  BUT THE KEY TO THAT PROBLEM, AS WE SHALL SEE, IS IN THE
MANNER IN WHICH THE SECRETARY'S DISCRETION WAS EXERCISED, NOT IN THE
BARE FACT THAT HE HAD DISCRETION. 

THE RIGHT TO TRAVEL IS A PART OF THE "LIBERTY" OF WHICH THE CITIZEN
CANNOT BE DEPRIVED WITHOUT DUE PROCESS OF LAW UNDER THE FIFTH
AMENDMENT.  SO MUCH IS CONCEDED BY THE SOLICITOR GENERAL.  IN ANGLO
SAXON LAW THAT RIGHT WAS EMERGING AT LEAST AS EARLY AS THE MAGNA
CARTA.  (FN12)  CHAFEE, THREE HUMAN RIGHTS IN THE CONSTITUTION OF 1787
(1956), 171-181, 187 ET SEQ., SHOWS HOW DEEPLY ENGRAINED IN OUR HISTORY
THIS FREEDOM OF MOVEMENT IS.  FREEDOM OF MOVEMENT ACROSS FRONTIERS IN
EITHER DIRECTION, AND INSIDE FRONTIERS AS WELL, WAS A PART OF OUR
HERITAGE.  TRAVEL ABROAD, LIKE TRAVEL WITHIN THE COUNTRY, MAY BE
NECESSARY FOR A LIVELIHOOD.  IT MAY BE AS CLOSE TO THE HEART OF THE
INDIVIDUAL AS THE CHOICE OF WHAT HE EATS, OR WEARS, OR READS.  FREEDOM
OF MOVEMENT IS BASIC IN OUR SCHEME OF VALUES.  SEE CRANDALL V. NEVADA,
6 WALL.  35, 44; WILLIAMS V. FEARS, 179 U.S. 270, 274; EDWARDS V.
CALIFORNIA, 314 U.S. 160.  "OUR NATION," WROTE CHAFEE, "HAS THRIVED ON
THE PRINCIPLE THAT, OUTSIDE AREAS OF PLAINLY HARMFUL CONDUCT, EVERY
AMERICAN IS LEFT TO SHAPE HIS OWN LIFE AS HE THINKS BEST, DO WHAT HE
PLEASES, GO WHERE HE PLEASES."  ID., AT 197. 

FREEDOM OF MOVEMENT ALSO HAS LARGE SOCIAL VALUES.  AS CHAFEE PUT IT: 

"FOREIGN CORRESPONDENTS AND LECTURERS ON PUBLIC AFFAIRS NEED FIRST
HAND INFORMATION.  SCIENTISTS AND SCHOLARS GAIN GREATLY FROM
CONSULTATIONS WITH COLLEAGUES IN OTHER COUNTRIES.  STUDENTS EQUIP
THEMSELVES FOR MORE FRUITFUL CAREERS IN THE UNITED STATES BY
INSTRUCTION IN FOREIGN UNIVERSITIES.  (FN13)  THEN THERE ARE REASONS
CLOSE TO THE CORE OF PERSONAL LIFE - MARRIAGE, REUNITING FAMILIES,
SPENDING HOURS WITH OLD FRIENDS.  FINALLY, TRAVEL ABROAD ENABLES
AMERICAN CITIZENS TO UNDERSTAND THAT PEOPLE LIKE THEMSELVES LIVE IN
EUROPE AND HELPS THEM TO BE WELL-INFORMED ON PUBLIC ISSUES.  AN
AMERICAN WHO HAS CROSSED THE OCEAN IS NOT OBLIGED TO FORM HIS OPINIONS
ABOUT OUR FOREIGN POLICY MERELY FROM WHAT HE IS TOLD BY OFFICIALS OF
OUR GOVERNMENT OR BY A FEW CORRESPONDENTS OF AMERICAN NEWSPAPERS. 
MOREOVER, HIS VIEWS ON DOMESTIC QUESTIONS ARE ENRICHED BY SEEING HOW
FOREIGNERS ARE TRYING TO SOLVE SIMILAR PROBLEMS.  IN MANY DIFFERENT
WAYS DIRECT CONTACT WITH OTHER COUNTRIES CONTRIBUTES TO SOUNDER
DECISIONS AT HOME."  ID., AT 195-196.  AND SEE VESTAL, FREEDOM OF
MOVEMENT, 41 IOWA L. REV. 6, 13-14. 

FREEDOM TO TRAVEL IS, INDEED, AN IMPORTANT ASPECT OF THE CITIZEN'S
"LIBERTY."  WE NEED NOT DECIDE THE EXTENT TO WHICH IT CAN BE
CURTAILED.  WE ARE FIRST CONCERNED WITH THE EXTENT, IF ANY, TO WHICH
CONGRESS HAS AUTHORIZED ITS CURTAILMENT.    THE DIFFICULTY IS THAT
WHILE THE POWER OF THE SECRETARY OF STATE OVER THE ISSUANCE OF
PASSPORTS IS EXPRESSED IN BROAD TERMS, IT WAS APPARENTLY LONG EXERCISED
QUITE NARROWLY.  SO FAR AS MATERIAL HERE, THE CASES OF REFUSAL OF
PASSPORTS GENERALLY FELL INTO TWO CATEGORIES.  FIRST, QUESTIONS
PERTINENT TO THE CITIZENSHIP OF THE APPLICANT AND HIS ALLEGIANCE TO THE
UNITED STATES HAD TO BE RESOLVED BY THE SECRETARY, FOR THE COMMAND OF
CONGRESS WAS THAT "NO PASSPORT SHALL BE GRANTED OR ISSUED TO OR
VERIFIED FOR ANY OTHER PERSONS THAN THOSE OWING ALLEGIANCE, WHETHER
CITIZENS OR NOT, TO THE UNITED STATES."  32 STAT. 386, 22 U.S.C. SEC.
212.  SECOND, WAS THE QUESTION WHETHER THE APPLICANT WAS PARTICIPATING
IN ILLEGAL CONDUCT, TRYING TO ESCAPE THE TOILS OF THE LAW, PROMOTING
PASSPORT FRAUDS, OR OTHERWISE ENGAGING IN CONDUCT WHICH WOULD VIOLATE
THE LAWS OF THE UNITED STATES.  SEE 3 MOORE, DIGEST OF INTERNATIONAL
LAW (1906), SEC. 512; 3 HACKWORTH, DIGEST OF INTERNATIONAL LAW (1942),
SEC. 268; 2 HYDE, INTERNATIONAL LAW (2D REV. ED.), SEC. 401. 

THE GROUNDS FOR REFUSAL ASSERTED HERE DO NOT RELATE TO CITIZENSHIP OR
ALLEGIANCE ON THE ONE HAND OR TO CRIMINAL OR UNLAWFUL CONDUCT ON THE
OTHER.  YET, SO FAR AS RELEVANT HERE, THOSE TWO ARE THE ONLY ONES WHICH
IT COULD FAIRLY BE ARGUED WERE ADOPTED BY CONGRESS IN LIGHT OF PRIOR
ADMINISTRATIVE PRACTICE.  ONE CAN FIND IN THE RECORDS OF THE STATE
DEPARTMENT RULINGS OF SUBORDINATES COVERING A WIDER RANGE OF ACTIVITIES
THAN THE TWO INDICATED.  BUT AS RESPECTS COMMUNISTS THESE ARE SCATTERED
RULINGS AND NOT CONSISTENTLY OF ONE PATTERN.  WE CAN SAY WITH ASSURANCE
THAT WHATEVER MAY HAVE BEEN THE PRACTICE AFTER 1926, AT THE TIME THE
ACT OF JULY 3, 1926, WAS ADOPTED, THE ADMINISTRATIVE PRACTICE, SO FAR
AS RELEVANT HERE, HAD JELLED ONLY AROUND THE TWO CATEGORIES MENTIONED. 
WE, THEREFORE, HESITATE TO IMPUTE TO CONGRESS, WHEN IN 1952 IT MADE A
PASSPORT NECESSARY FOR FOREIGN TRAVEL AND LEFT ITS ISSUANCE TO THE
DISCRETION OF THE SECRETARY OF STATE, A PURPOSE TO GIVE HIM UNBRIDLED
DISCRETION TO GRANT OR WITHHOLD A PASSPORT FROM A CITIZEN FOR ANY
SUBSTANTIVE REASON HE MAY CHOOSE. 

MORE RESTRICTIVE REGULATIONS WERE APPLIED IN 1918 AND IN 1941 AS WAR
MEASURES.  WE ARE NOT COMPELLED TO EQUATE THIS PRESENT PROBLEM OF
STATUTORY CONSTRUCTION WITH PROBLEMS THAT MAY ARISE UNDER THE WAR
POWER.  CF. YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579. 

IN A CASE OF COMPARABLE MAGNITUDE, KOREMATSU V. UNITED STATES, 323
U.S. 214, 218, WE ALLOWED THE GOVERNMENT IN TIME OF WAR TO EXCLUDE
CITIZENS FROM THEIR HOMES AND RESTRICT THEIR FREEDOM OF MOVEMENT ONLY
ON A SHOWING OF "THE GRAVEST IMMINENT DANGER TO THE PUBLIC SAFETY." 
THERE THE CONGRESS AND THE CHIEF EXECUTIVE MOVED IN COORDINATED ACTION;
AND, AS WE SAID, THE NATION WAS THEN AT WAR.  NO SUCH CONDITION
PRESENTLY EXISTS.  NO SUCH SHOWING OF EXTREMITY, NO SUCH SHOWING OF
JOINT ACTION BY THE CHIEF EXECUTIVE AND THE CONGRESS TO CURTAIL A
CONSTITUTIONAL RIGHT OF THE CITIZEN HAS BEEN MADE HERE. 

SINCE WE START WITH AN EXERCISE BY AN AMERICAN CITIZEN OF AN ACTIVITY
INCLUDED IN CONSTITUTIONAL PROTECTION, WE WILL NOT READILY INFER THAT
CONGRESS GAVE THE SECRETARY OF STATE UNBRIDLED DISCRETION TO GRANT OR
WITHHOLD IT.  IF WE WERE DEALING WITH POLITICAL QUESTIONS ENTRUSTED TO
THE CHIEF EXECUTIVE BY THE CONSTITUTION WE WOULD HAVE A DIFFERENT
CASE.  BUT THERE IS MORE INVOLVED HERE.  IN PART, OF COURSE, THE
ISSUANCE OF THE PASSPORT CARRIES SOME IMPLICATION OF INTENTION TO
EXTEND THE BEARER DIPLOMATIC PROTECTION, THOUGH IT DOES NO MORE THAN
"REQUEST ALL WHOM IT MAY CONCERN TO PERMIT SAFELY AND FREELY TO PASS,
AND IN CASE OF NEED TO GIVE ALL LAWFUL AID AND PROTECTION" TO THIS
CITIZEN OF THE UNITED STATES.  BUT THAT FUNCTION OF THE PASSPORT IS
SUBORDINATE.  ITS CRUCIAL FUNCTION TODAY IS CONTROL OVER EXIT.  AND, AS
WE HAVE SEEN, THE RIGHT OF EXIT IS A PERSONAL RIGHT INCLUDED WITHIN THE
WORD "LIBERTY" AS USED IN THE FIFTH AMENDMENT.  IF THAT "LIBERTY" IS TO
BE REGULATED, IT MUST BE PURSUANT TO THE LAW-MAKING FUNCTIONS OF THE
CONGRESS.  YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, SUPRA.  AND IF THAT
POWER IS DELEGATED, THE STANDARDS MUST BE ADEQUATE TO PASS SCRUTINY BY
THE ACCEPTED TESTS.  SEE PANAMA REFINING CO. V. RYAN, 293 U.S. 388, 420
430.  CF. CANTWELL V. CONNECTICUT, 310 U.S. 296, 307; NIEMOTKO V.
MARYLAND, 340 U.S. 268, 271.  WHERE THE ACTIVITIES OR ENJOYMENT,
NATURAL AND OFTEN NECESSARY TO THE WELL-BEING OF AN AMERICAN CITIZEN,
SUCH AS TRAVEL, ARE INVOLVED, WE WILL CONSTRUE NARROWLY ALL DELEGATED
POWERS THAT CURTAIL OR DILUTE THEM.   SEE EX PARTE ENDO, 323 U.S. 283,
301-302.  CF. HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, 156; UNITED
STATES V. RUMELY, 345 U.S. 41, 46.  WE HESITATE TO FIND IN THIS BROAD
GENERALIZED POWER AN AUTHORITY TO TRENCH SO HEAVILY ON THE RIGHTS OF
THE CITIZEN. 

THUS WE DO NOT REACH THE QUESTION OF CONSTITUTIONALITY.  WE ONLY
CONCLUDE THAT SEC. 1185 AND SEC. 211A DO NOT DELEGATE TO THE SECRETARY
THE KIND OF AUTHORITY EXERCISED HERE.  WE DEAL WITH BELIEFS, WITH
ASSOCIATIONS, WITH IDEOLOGICAL MATTERS.  WE MUST REMEMBER THAT WE ARE
DEALING HERE WITH CITIZENS WHO HAVE NEITHER BEEN ACCUSED OF CRIMES NOR
FOUND GUILTY.  THEY ARE BEING DENIED THEIR FREEDOM OF MOVEMENT SOLELY
BECAUSE OF THEIR REFUSAL TO BE SUBJECTED TO INQUIRY INTO THEIR BELIEFS
AND ASSOCIATIONS.  THEY DO NOT SEEK TO ESCAPE THE LAW NOR TO VIOLATE
IT.  THEY MAY OR MAY NOT BE COMMUNISTS.  BUT ASSUMING THEY ARE, THE
ONLY LAW WHICH CONGRESS HAS PASSED EXPRESSLY CURTAILING THE MOVEMENT OF
COMMUNISTS ACROSS OUR BORDERS HAS NOT YET BECOME EFFECTIVE.  (FN14)  IT
WOULD THEREFORE BE STRANGE TO INFER THAT PENDING THE EFFECTIVENESS OF
THAT LAW, THE SECRETARY HAS BEEN SILENTLY GRANTED BY CONGRESS THE
LARGER, THE MORE PERVASIVE POWER TO CURTAIL IN HIS DISCRETION THE FREE
MOVEMENT OF CITIZENS IN ORDER TO SATISFY HIMSELF ABOUT THEIR BELIEFS OR
ASSOCIATIONS. 

TO REPEAT, WE DEAL HERE WITH A CONSTITUTIONAL RIGHT OF THE CITIZEN, A
RIGHT WHICH WE MUST ASSUME CONGRESS WILL BE FAITHFUL TO RESPECT.  WE
WOULD BE FACED WITH IMPORTANT CONSTITUTIONAL QUESTIONS WERE WE TO HOLD
THAT CONGRESS BY SEC. 1185 AND SEC. 211A HAD GIVEN THE SECRETARY
AUTHORITY TO WITHHOLD PASSPORTS TO CITIZENS BECAUSE OF THEIR BELIEFS OR
ASSOCIATIONS.  CONGRESS HAS MADE NO SUCH PROVISION IN EXPLICIT TERMS;
AND ABSENT ONE, THE SECRETARY MAY NOT EMPLOY THAT STANDARD TO RESTRICT
THE CITIZENS' RIGHT OF FREE MOVEMENT.  REVERSED. 

FN1  22 CFR SEC. 51.135 PROVIDES: 

"IN ORDER TO PROMOTE THE NATIONAL INTEREST BY ASSURING THAT PERSONS
WHO SUPPORT THE WORLD COMMUNIST MOVEMENT OF WHICH THE COMMUNIST PARTY
IS AN INTEGRAL UNIT MAY NOT, THROUGH USE OF UNITED STATES PASSPORTS,
FURTHER THE PURPOSES OF THAT MOVEMENT, NO PASSPORT, EXCEPT ONE LIMITED
FOR DIRECT AND IMMEDIATE RETURN TO THE UNITED STATES, SHALL BE ISSUED
TO: 

"(A)  PERSONS WHO ARE MEMBERS OF THE COMMUNIST PARTY OR WHO HAVE
RECENTLY TERMINATED SUCH MEMBERSHIP UNDER SUCH CIRCUMSTANCES AS TO
WARRANT THE CONCLUSION - NOT OTHERWISE REBUTTED BY THE EVIDENCE - THAT
THEY CONTINUE TO ACT IN FURTHERANCE OF THE INTERESTS AND UNDER THE
DISCIPLINE OF THE COMMUNIST PARTY. 

"(B)  PERSONS, REGARDLESS OF THE FORMAL STATE OF THEIR AFFILIATION
WITH THE COMMUNIST PARTY, WHO ENGAGE IN ACTIVITIES WHICH SUPPORT THE
COMMUNIST MOVEMENT UNDER SUCH CIRCUMSTANCES AS TO WARRANT THE
CONCLUSION - NOT OTHERWISE REBUTTED BY THE EVIDENCE - THAT THEY HAVE
ENGAGED IN SUCH ACTIVITIES AS A RESULT OF DIRECTION, DOMINATION, OR
CONTROL EXERCISED OVER THEM BY THE COMMUNIST MOVEMENT. 

"(C)  PERSONS, REGARDLESS OF THE FORMAL STATE OF THEIR AFFILIATION
WITH THE COMMUNIST PARTY, AS TO WHOM THERE IS REASON TO BELIEVE, ON THE
BALANCE OF ALL THE EVIDENCE, THAT THEY ARE GOING ABROAD TO ENGAGE IN
ACTIVITIES WHICH WILL ADVANCE THE COMMUNIST MOVEMENT FOR THE PURPOSE,
KNOWINGLY AND WILFULLY OF ADVANCING THAT MOVEMENT." 

FN2  SECTION 51.142 OF THE REGULATIONS PROVIDES: 

"AT ANY STAGE OF THE PROCEEDINGS IN THE PASSPORT DIVISION OR BEFORE
THE BOARD, IF IT IS DEEMED NECESSARY, THE APPLICANT MAY BE REQUIRED, AS
A PART OF HIS APPLICATION, TO SUBSCRIBE, UNDER OATH OR AFFIRMATION, TO
A STATEMENT WITH RESPECT TO PRESENT OR PAST MEMBERSHIP IN THE COMMUNIST
PARTY.  IF APPLICANT STATES THAT HE IS A COMMUNIST, REFUSAL OF A
PASSPORT IN HIS CASE WILL BE WITHOUT FURTHER PROCEEDINGS." 

FN3  SECTIONS 2 AND 6 OF THE ACT OF SEPTEMBER 23, 1950, KNOWN AS THE
INTERNATIONAL SECURITY ACT OF 1950, 64 STAT. 987, 993, 50 U.S.C. SECS.
781, 785, PROVIDE THAT IT SHALL BE UNLAWFUL, WHEN A COMMUNIST
ORGANIZATION IS REGISTERED UNDER THE ACT OR WHEN "THERE IS IN EFFECT A
FINAL ORDER OF THE BOARD REQUIRING AN ORGANIZATION TO REGISTER," FOR
ANY MEMBER HAVING KNOWLEDGE OF SUCH REGISTRY AND ORDER TO APPLY FOR A
PASSPORT OR FOR ANY OFFICIAL TO ISSUE HIM ONE.  BUT THE CONDITIONS
PRECEDENT HAVE NOT YET MATERIALIZED. 

FN4  THAT SECTION PROVIDES IN RELEVANT PART: 

"(A)  WHEN THE UNITED STATES IS AT WAR OR DURING THE EXISTENCE OF ANY
NATIONAL EMERGENCY PROCLAIMED BY THE PRESIDENT,  ...  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 SECTION 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 THE
CONGRESS, BE UNLAWFUL: 

"(1) 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 MAY PRESCRIBE. 

     *         *         *         *         * 

"(3) FOR ANY PERSON KNOWINGLY TO MAKE ANY FALSE STATEMENT IN AN
APPLICATION FOR PERMISSION TO DEPART FROM OR ENTER THE UNITED STATES
WITH INTENT TO INDUCE OR SECURE THE GRANTING OF SUCH PERMISSION EITHER
FOR HIMSELF OR FOR ANOTHER. 

     *         *    *         *         * 

"(B)  AFTER SUCH PROCLAMATION AS IS PROVIDED FOR IN SUBSECTION (A)
HAS BEEN MADE AND PUBLISHED AND WHILE SUCH PROCLAMATION IS IN FORCE, IT
SHALL, EXCEPT AS OTHERWISE PROVIDED BY THE PRESIDENT, AND SUBJECT TO
SUCH LIMITATIONS AND EXCEPTIONS AS THE PRESIDENT MAY AUTHORIZE AND
PRESCRIBE, BE UNLAWFUL FOR ANY CITIZEN OF THE UNITED STATES TO DEPART
FROM OR ENTER, OR ATTEMPT TO DEPART FROM OR ENTER, THE UNITED STATES
UNLESS HE BEARS A VALID PASSPORT." 

FN5  PROC. NO. 3004, 67 STAT. C31. 

FN6  SEE 9 OP. ATTY. GEN. 350, 352. 

FN7  DEPT. REG. NO. 108.162, EFFECTIVE AUGUST 28, 1952, 17 FED. REG.
8013. 

FN8  SEE 2 HYDE, INTERNATIONAL LAW (2D REV. ED. 1945), SEC. 399; 3
HACKWORTH, DIGEST OF INTERNATIONAL LAW (1942), SEC. 268. 

FN9  SEE PERKINS V. ELG, 307 U.S. 325, 350. 

FN10  EXEC. ORDER NO. 654, JUNE 13, 1907; ID., NO. 2119-A, JAN. 12,
1915; ID., NO. 2286-A, DEC. 17, 1915; ID., NO. 2362-A, APR. 17, 1916;
ID., NO. 2519-A, JAN. 24, 1917; ID., NO. 4382-A, FEB. 12, 1926; ID.,
NO. 4800, JAN. 31, 1928; ID., NO. 5860, JUNE 22, 1932; ID., NO. 7856,
MAR. 31, 1938, 3 FED. REG. 681, 22 CFR SEC. 51.75.  THE PRESENT
PROVISION IS THAT LAST LISTED AND READS IN PART AS FOLLOWS: 

"THE SECRETARY OF STATE IS AUTHORIZED IN HIS DISCRETION TO REFUSE TO
ISSUE A PASSPORT, TO RESTRICT A PASSPORT FOR USE ONLY IN CERTAIN
COUNTRIES, TO RESTRICT IT AGAINST USE IN CERTAIN COUNTRIES, TO WITHDRAW
OR CANCEL A PASSPORT ALREADY ISSUED, AND TO WITHDRAW A PASSPORT FOR THE
PURPOSE OF RESTRICTING ITS VALIDITY OR USE IN CERTAIN COUNTRIES." 

THE DEPARTMENT, HOWEVER, DID NOT FEEL THAT THE SECRETARY OF STATE
COULD EXERCISE HIS DISCRETION WILLFULLY WITHOUT CAUSE.  ACTING
SECRETARY WILSON WROTE ON APRIL 27, 1907, "THE ISSUANCE OF PASSPORTS IS
A DISCRETIONARY ACT ON THE PART OF THE SECRETARY OF STATE, AND HE MAY,
FOR REASONS DEEMED BY HIM TO BE SUFFICIENT, DIRECT THE REFUSAL OF A
PASSPORT TO AN AMERICAN CITIZEN; BUT A PASSPORT IS NOT TO BE REFUSED TO
AN AMERICAN CITIZEN, EVEN IF HIS CHARACTER IS DOUBTFUL, UNLESS THERE IS
REASON TO BELIEVE THAT HE WILL PUT THE PASSPORTS TO AN IMPROPER OR
UNLAWFUL USE."  FOREIGN RELATIONS OF THE UNITED STATES, PT. II (1910),
1083.  SEE 3 MOORE, DIGEST OF INTERNATIONAL LAW (1906), SEC. 512. 
FREUND, ADMINISTRATIVE POWERS OVER PERSONS AND PROPERTY (1928), 97,
STATES "  ...  IN PRACTICE IT IS CLEAR THAT THE DEPARTMENT OF STATE
ACTS UPON THE THEORY THAT IT MUST GRANT THE PASSPORT UNLESS THERE IS
SOME CIRCUMSTANCE MAKING IT A DUTY TO REFUSE IT.  ANY OTHER ATTITUDE
WOULD INDEED BE INTOLERABLE; IT WOULD MEAN AN EXECUTIVE POWER OF A
POLITICAL CHARACTER OVER INDIVIDUALS QUITE OUT OF HARMONY WITH
TRADITIONAL AMERICAN LEGISLATIVE PRACTICE." 

FN11  13 OP. ATTY. GEN. 89, 92; 23 OP. ATTY. GEN. 509, 511. 

FN12  ARTICLE 42 READS AS FOLLOWS: 

"IT SHALL BE LAWFUL TO ANY PERSON, FOR THE FUTURE, TO GO OUT OF OUR
KINGDOM, AND TO RETURN, SAFELY AND SECURELY, BY LAND OR BY WATER,
SAVING HIS ALLEGIANCE TO US, UNLESS IT BE IN TIME OF WAR, FOR SOME
SHORT SPACE, FOR THE COMMON GOOD OF THE KINGDOM:  EXCEPTING PRISONERS
AND OUTLAWS, ACCORDING TO THE LAWS OF THE LAND, AND OF THE PEOPLE OF
THE NATION AT WAR AGAINST US, AND MERCHANTS WHO SHALL BE TREATED AS IT
IS SAID ABOVE."  AND SEE JAFFE, OP. CIT. SUPRA, 19-20; SIBLEY, THE
PASSPORT SYSTEM, 7 J. SOC. COMP. LEG.  (N.S.)  26, 32-33; 1 BLACKSTONE
COMMENTARIES 134-135. 

FN13  THE USE OF FOREIGN TRAVEL TO PROMOTE EDUCATIONAL INTERESTS IS
REVIEWED BY FRANCIS J. COLLIGAN IN 30 DEPT. STATE BULL.  663. 

FN14 SEE NOTE 3, SUPRA. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON, MR. JUSTICE HARLAN,
AND MR. JUSTICE WHITTAKER CONCUR, DISSENTING. 

ON AUGUST 28, 1952, ACTING UNDER AUTHORITY VESTED BY EXECUTIVE ORDER
NO. 7856, 22 CFR SEC. 51.77, THE SECRETARY OF STATE ISSUED THE
REGULATIONS IN QUESTION, SEC. 51.142 OF WHICH PROVIDES THAT A PASSPORT
APPLICANT MAY BE REQUIRED TO MAKE A STATEMENT UNDER OATH "WITH RESPECT
TO PRESENT OR PAST MEMBERSHIP IN THE COMMUNIST PARTY."  22 CFR SEC.
51.142.  SINCE 1917, THE CONGRESS HAS REQUIRED THAT EVERY PASSPORT
APPLICATION "CONTAIN A TRUE RECITAL OF EACH AND EVERY MATTER OF FACT
WHICH MAY BE REQUIRED BY  ...  ANY RULES" OF THE SECRETARY OF STATE,
AND THAT REQUIREMENT MUST BE SATISFIED "BEFORE A PASSPORT IS ISSUED TO
ANY PERSON."  40 STAT. 227, 22 U.S.C. SEC. 213.  IN THE CONTEXT OF THAT
BACKGROUND, THE SECRETARY ASKED FOR, AND PETITIONERS REFUSED TO FILE,
AFFIDAVITS STATING WHETHER THEY THEN WERE OR EVER HAD BEEN MEMBERS OF
THE COMMUNIST PARTY.  THEREUPON THE SECRETARY REFUSED TO FURTHER
CONSIDER PETITIONER'S APPLICATIONS UNTIL SUCH TIME AS THEY FILED THE
REQUIRED AFFIDAVITS.    THE SECRETARY'S ACTION CLEARLY MUST BE HELD
AUTHORIZED BY CONGRESS IF THE REQUESTED INFORMATION IS RELEVANT TO ANY
GROUND UPON WHICH THE SECRETARY MIGHT PROPERLY REFUSE TO ISSUE A
PASSPORT.  THE COURT PURPORTS TODAY TO PRECLUDE THE EXISTENCE OF SUCH A
GROUND BY HOLDING THAT THE SECRETARY HAS NOT BEEN AUTHORIZED TO DENY A
PASSPORT TO A COMMUNIST WHOSE TRAVEL ABROAD WOULD BE INIMICAL TO OUR
NATIONAL SECURITY. 

IN THUS CONSTRUING THE AUTHORITY OF THE SECRETARY, THE COURT
RECOGNIZES THAT ALL DURING OUR HISTORY HE HAS HAD DISCRETION TO GRANT
OR WITHHOLD PASSPORTS.  THAT POWER, FIRST EXERCISED WITHOUT BENEFIT OF
STATUTE, WAS MADE THE SUBJECT OF SPECIFIC LEGISLATIVE AUTHORITY IN 1856
WHEN THE CONGRESS CONSOLIDATED ALL POWER OVER PASSPORTS IN THE HANDS OF
THE SECRETARY.  11 STAT. 60-61.  IN 1874 THE STATUTORY LANGUAGE, "SHALL
BE AUTHORIZED TO GRANT AND ISSUE," WAS CHANGED TO "MAY GRANT AND
ISSUE."  1874 R.S. SEC. 4075.  IN SLIGHTLY MODIFIED FORM, THE
SECRETARY'S POWER HAS COME THROUGH SEVERAL RE-ENACTMENTS, E.G., 44
STAT., PART 1, P. 657 IN 1926, TO ITS PRESENT-DAY EMBODIMENT IN 44
STAT., PART 2, P. 887, 22 U.S.C. SEC. 211A. 

THIS DISCRETIONARY AUTHORITY, WHICH WE PREVIOUSLY ACKNOWLEDGED IN
PERKINS V. ELG, 307 U.S. 325, 349-350 (1939), WAS EXERCISED BOTH IN
TIMES OF PEACE AND IN PERIODS OF WAR.  DURING WAR AND OTHER PERIODS OF
NATIONAL EMERGENCY, HOWEVER, THE IMPORTANCE OF THE SECRETARY'S PASSPORT
POWER WAS TREMENDOUSLY MAGNIFIED BY A SUCCESSION OF "TRAVEL-CONTROL
STATUTES" MAKING POSSESSION OF A PASSPORT A LEGAL NECESSITY TO LEAVING
OR ENTERING THIS COUNTRY.  THE FIRST OF THESE WAS ENACTED IN 1815 JUST
PRIOR TO THE END OF THE WAR OF 1812, WHEN IT WAS MADE ILLEGAL FOR ANY
CITIZEN TO "CROSS THE FRONTIER" INTO ENEMY TERRITORY WITHOUT A
PASSPORT.  3 STAT. 199.  AFTER THE SAME RESULT WAS ACCOMPLISHED DURING
THE CIVIL WAR WITHOUT CONGRESSIONAL SANCTION, 3 MOORE, DIGEST OF
INTERNATIONAL LAW, 1015-1021, WORLD WAR I PROMPTED PASSAGE IN 1918 OF
THE SECOND TRAVEL-CONTROL STATUTE, 40 STAT. 559.  THE 1918 STATUTE,
DIRECTLY ANTECEDENT TO PRESENTLY CONTROLLING LEGISLATION, PROVIDED THAT
IN TIME OF WAR AND UPON PUBLIC PROCLAMATION BY THE PRESIDENT THAT THE
PUBLIC SAFETY REQUIRED ADDITIONAL TRAVEL RESTRICTIONS, NO CITIZEN COULD
DEPART FROM OR ENTER INTO THE COUNTRY WITHOUT A PASSPORT.  SHORTLY
THEREAFTER, PRESIDENT WILSON MADE THE REQUIRED PROCLAMATION OF PUBLIC
NECESSITY, AND PROVIDED THAT NO CITIZEN SHOULD BE GRANTED A PASSPORT
UNLESS IT AFFIRMATIVELY APPEARED THAT HIS "DEPARTURE OR ENTRY IS NOT
PREJUDICIAL TO THE INTERESTS OF THE UNITED STATES."  PROC. NO. 1473, 40
STAT. 1829. 

THE LEGISLATIVE HISTORY OF THE 1918 ACT SHARPLY INDICATES THAT
CONGRESS MEANT THE SECRETARY TO DENY PASSPORTS TO THOSE WHOSE TRAVEL
ABROAD WOULD BE CONTRARY TO OUR NATIONAL SECURITY.  THE ACT CAME TO THE
FLOOR OF THE HOUSE OF REPRESENTATIVES ACCOMPANIED BY THE FOLLOWING
EXPLANATION IN THE REPORT OF THE HOUSE COMMITTEE ON FOREIGN AFFAIRS,
H.R. REP. NO. 485, 65TH CONG., 2D SESS. 2-3: 

"THAT SOME SUPERVISION OF TRAVEL BY AMERICAN CITIZENS IS ESSENTIAL
APPEARED FROM STATEMENTS MADE BEFORE THE COMMITTEE AT THE HEARING UPON
THE BILL.  ONE CASE WAS MENTIONED OF A UNITED STATES CITIZEN WHO
RECENTLY RETURNED FROM EUROPE AFTER HAVING, TO THE KNOWLEDGE OF OUR
GOVERNMENT, DONE WORK IN A NEUTRAL COUNTRY FOR THE GERMAN GOVERNMENT. 
THERE WAS STRONG SUSPICION THAT HE CAME TO THE UNITED STATES FOR NO
PROPER PURPOSE.  NEVERTHELESS NOT ONLY WAS IT IMPOSSIBLE TO EXCLUDE HIM
BUT IT WOULD NOW BE IMPOSSIBLE TO PREVENT HIM FROM LEAVING THE COUNTRY
IF HE SAW FIT TO DO SO.  THE KNOWN FACTS IN HIS CASE ARE NOT SUFFICIENT
TO WARRANT THE INSTITUTION OF A CRIMINAL PROSECUTION, AND IN ANY EVENT
THE DIFFICULTY OF SECURING LEGAL EVIDENCE FROM THE PLACE OF HIS
ACTIVITIES IN EUROPE MAY EASILY BE IMAGINED. 

*         *         *         *         * 

"IT IS ESSENTIAL TO MEET THE SITUATION THAT THE EXECUTIVE SHOULD HAVE
WIDE DISCRETION AND WIDE AUTHORITY OF ACTION.  NO ONE CAN FORESEE THE
DIFFERENT MEANS WHICH MAY BE ADOPTED BY HOSTILE NATIONS TO SECURE
MILITARY INFORMATION OR SPREAD PROPAGANDA AND DISCONTENT.  IT IS
OBVIOUSLY IMPRACTICABLE TO APPEAL TO CONGRESS FOR FURTHER LEGISLATION
IN EACH NEW EMERGENCY.  SWIFT EXECUTIVE ACTION IS THE ONLY EFFECTIVE
COUNTERSTROKE. 

"THE COMMITTEE WAS INFORMED BY REPRESENTATIVES OF THE EXECUTIVE
DEPARTMENTS THAT THE NEED FOR PROMPT LEGISLATION OF THE CHARACTER
SUGGESTED IS MOST PRESSING.  THERE HAVE RECENTLY BEEN NUMEROUS
SUSPICIOUS DEPARTURES FOR CUBA WHICH IT WAS IMPOSSIBLE TO PREVENT. 
OTHER INDIVIDUAL CASES OF ENTRY AND DEPARTURE AT VARIOUS POINTS HAVE
EXCITED THE GREATEST ANXIETY.  THIS IS PARTICULARLY TRUE IN RESPECT OF
THE MEXICAN BORDER, PASSAGE ACROSS WHICH CAN NOT LEGALLY BE RESTRICTED
FOR MANY TYPES OF PERSONS REASONABLY SUSPECTED OF AIDING GERMANY'S
PURPOSES." 

DURING DEBATE OF THE BILL ON THE FLOOR OF THE HOUSE, ITS HOUSE
SPOKESMAN STATED: 

"THE GOVERNMENT IS NOW VERY MUCH HAMPERED BY LACK OF AUTHORITY TO
CONTROL THE TRAVEL TO AND FROM THIS COUNTRY, EVEN OF PEOPLE SUSPECTED
OF NOT BEING LOYAL, AND EVEN OF THOSE WHOM THEY SUSPECT OF BEING IN THE
EMPLOY OF ENEMY GOVERNMENTS."  56 CONG. REC. 6029. 

*         *         *         *         * 

"OUR PORTS ARE OPEN, SO FAR AS THE LAW IS CONCERNED, TO ALIEN
FRIENDS, CITIZENS, AND NEUTRALS, TO COME AND GO AT WILL AND PLEASURE,
AND THAT NOTWITHSTANDING THE GOVERNMENT MAY SUSPECT THE CONDUCT AND THE
INTENTION OF THE INDIVIDUALS WHO COME AND GO."  ID., AT 6065. 

HIS COUNTERPART IN THE SENATE STATED IN DEBATE: 

"THE CHIEF OBJECT OF THE BILL IS TO CORRECT A VERY SERIOUS TROUBLE
WHICH THE DEPARTMENT OF STATE, THE DEPARTMENT OF JUSTICE, AND THE
DEPARTMENT OF LABOR ARE HAVING WITH ALIENS AND ALIEN ENEMIES AND
RENEGADE AMERICAN CITIZENS, I AM SORRY TO SAY, ENTERING THE UNITED
STATES FROM NESTS THEY HAVE IN CUBA AND OVER THE MEXICAN BORDER.  THEY
CAN NOW ENTER AND DEPART WITHOUT ANY POWER OF THE DEPARTMENTS OR OF THE
GOVERNMENT TO INTERCEPT OR DELAY THEM.  THERE IS NO LAW THAT COVERS
THIS CASE.   IT IS BELIEVED THAT ALL THE INFORMATION WHICH GOES TO
GERMANY OF THE WAR PREPARATIONS OF THE UNITED STATES AND OF THE
TRANSPORTATION OF TROOPS TO FRANCE PASSES THROUGH MEXICO.  THE
GOVERNMENT IS HAVING A GREAT DEAL OF TROUBLE ALONG THAT BORDER.  IT IS
AN EVERYDAY OCCURENCE, AND THE EMERGENCY OF THIS MEASURE IS VERY
GREAT.  THE BILL IS SUPPLEMENTARY TO THE ESPIONAGE LAWS AND NECESSARY
FOR THEIR EFFICIENT EXECUTION IN DETECTING AND PUNISHING GERMAN
SPIES."  56 CONG.  REC. 6192. 

THE IMPLICATION IS UNMISTAKABLE THAT THE SECRETARY WAS INTENDED TO
EXERCISE HIS TRADITIONAL PASSPORT FUNCTION IN SUCH A MANNER AS WOULD
EFFECTIVELY ADD TO THE PROTECTION OF THIS COUNTRY'S INTERNAL SECURITY. 

THAT THE SECRETARY SO UNDERSTOOD AND SO EXERCISED HIS PASSPORT POWER
IN THIS PERIOD IS EVIDENT FROM TWO STATE DEPARTMENT DOCUMENTS IN 1920. 
A MEMORANDUM OF THE UNDER SECRETARY OF STATE, DATED NOVEMBER 30, 1920,
DECLARED, "ANY ASSISTANCE IN THE WAY OF PASSPORT FACILITIES, WHICH THIS
GOVERNMENT MAY RENDER TO A PERSON WHO IS WORKING EITHER DIRECTLY OR
INDIRECTLY IN BEHALF OF THE SOVIET GOVERNMENT IS A HELP TO THE SOVIET
GOVERNMENT  ...  ."  MEMORANDUM RE APPLICANTS FOR PASSPORTS WHO ARE
BOLSHEVISTS OR WHO ARE CONNECTED WITH BOLSHEVIST GOVERNMENT, CODE NO.
5000.  ACCORDINGLY, IT WAS RECOMMENDED THAT PASSPORTS BE REFUSED ANY
PERSON "WHO COUNSELS OR ADVOCATES PUBLICLY OR PRIVATELY THE OVERTHROW
(OF) ORGANIZED GOVERNMENTS BY FORCE."  ID.  AMONG THE EXAMPLES STATED
WERE "MEMBERS OF THE COMMUNIST PARTY."  ID.  TWO WEEKS LATER, THE STATE
DEPARTMENT PUBLISHED OFFICE INSTRUCTIONS, DATED DECEMBER 16, 1920, TO
OUR EMBASSIES THROUGHOUT THE WORLD, IMPLEMENTING CODE NO. 5000 BY
PROHIBITING ISSUANCE OF PASSPORTS TO "ANARCHISTS" AND "REVOLUTIONARY
RADICALS."  EXPRESSLY INCLUDED AMONG THE PROSCRIBED CLASSES OF CITIZENS
WERE THOSE WHO "BELIEVE IN OR ADVOCATE THE OVERTHROW BY FORCE OR
VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES," AS WELL AS ALL THOSE
WHO "ARE MEMBERS OF OR ARE AFFILIATED WITH ANY ORGANIZATION" THAT
BELIEVES IN OR ADVOCATES SUCH OVERTHROW. 

BY ITS TERMS A WAR STATUTE, THE 1918 ACT EXPIRED IN MARCH 1921, SEE
41 STAT. 1359, AFTER WHICH NO MORE TRAVEL CONTROLS EXISTED UNTIL 1941. 
IN THAT YEAR, CONGRESS AMENDED THE 1918 ACT SO AS TO PROVIDE THE SAME
CONTROLS DURING THE NATIONAL EMERGENCY PROCLAIMED BY THE PRESIDENT ON
MAY 27, 1941, SHOULD THE PRESIDENT FIND AND PUBLICLY PROCLAIM THAT THE
INTEREST OF THE UNITED STATES REQUIRED THAT SUCH RESTRICTIONS BE
REIMPOSED.  55 STAT. 252.  SHORTLY THEREAFTER, PRESIDENT ROOSEVELT
INVOKED THIS AUTHORITY, 55 STAT. 1696, AND IMPLEMENTING REGULATIONS
WERE ISSUED BY THE STATE DEPARTMENT.  22 CFR SEC. 53.  THE LEGISLATIVE
HISTORY OF THE 1941 AMENDMENT IS AS CLEAR AS THAT OF THE 1918 ACT:  THE
PURPOSE OF THE LEGISLATION WAS TO SO USE THE PASSPORT POWER OF THE
SECRETARY AS TO BLOCK TRAVEL TO AND FROM THE COUNTRY BY THOSE PERSONS
WHOSE PASSAGE WOULD NOT BE IN THE BEST INTERESTS AND SECURITY OF THE
UNITED STATES.  THE REPORT OF THE SENATE COMMITTEE ON THE JUDICIARY, S.
REP. NO. 444, 77TH CONG., 1ST SESS. 1-2, DECLARED: 

"SINCE THE OUTBREAK OF THE PRESENT WAR IT HAS COME TO THE ATTENTION
OF THE DEPARTMENT OF STATE AND OF OTHER EXECUTIVE DEPARTMENTS THAT
THERE ARE MANY PERSONS IN AND OUTSIDE OF THE UNITED STATES WHO ARE
DIRECTLY ENGAGED IN ESPIONAGE AND SUBVERSIVE ACTIVITIES IN THE
INTERESTS OF FOREIGN GOVERNMENTS, AND OTHERS WHO ARE ENGAGED IN
ACTIVITIES INIMICAL TO THE BEST INTERESTS OF THE UNITED STATES, WHO
DESIRE TO TRAVEL FROM TIME TO TIME BETWEEN THE UNITED STATES AND
FOREIGN COUNTRIES IN CONNECTION WITH THEIR ACTIVITIES  ...  ." 

DURING DEBATE ON THE HOUSE FLOOR, THE "SOLE PURPOSE" OF THE BILL WAS
STATED TO BE ESTABLISHMENT OF "A SORT OF CLEARING HOUSE," WHERE THOSE
PERSONS WISHING TO ENTER OR LEAVE THE COUNTRY "WOULD HAVE TO GIVE THEIR
REASONS WHY THEY WERE GOING OR COMING, AND WHERE IT WOULD BE DETERMINED
WHETHER  ... THEIR COMING IN OR GOING OUT WOULD BE INIMICAL TO THE
INTERESTS OF THE UNITED STATES."  87 CONG. REC. 5052.  SEE ALSO 87
CONG. REC.  5048-5053, 5386-5388.  THE CARRYING OUT OF THIS LEGISLATIVE
PURPOSE RESULTED IN A "COMPLETE CHANGE IN EMPHASIS OF THE WORK OF THE
DIVISION FROM THAT OF AN AGENCY TO AFFORD PROTECTION TO THE INDIVIDUAL
TO THAT OF ONE WHOSE PRINCIPAL PURPOSE WAS TO SAFEGUARD AND MAINTAIN
THE SECURITY OF THE STATE."  12 DEPT. STATE BULL.  1070.  THAT
TRANSFORMATION INVOLVED "THE CLEARANCE UPON A BASIS OF SECURITY FOR THE
STATE OF THE ENTRY AND DEPARTURE OF HUNDREDS OF THOUSANDS OF PERSONS
INTO AND FROM THE UNITED STATES."  ID. 

WHILE THE NATIONAL EMERGENCY TO WHICH THE 1941 AMENDMENT RELATED WAS
OFFICIALLY DECLARED AT AN END ON APRIL 28, 1952, PROC. NO. 2974, 66
STAT. C31, CONGRESS CONTINUED THE PROVISIONS OF THE ACT IN EFFECT UNTIL
APRIL 1, 1953.  66 STAT. 54.  IN THAT INTERIM PERIOD, CONGRESS PASSED
THE IMMIGRATION AND NATIONALITY ACT OF 1952, WHICH BOTH REPEALED THE
1918 ACT AS AMENDED IN 1941, 66 STAT. 279, AND RE-ENACTED IT AS SEC.
215 OF THE 1952 ACT, AMENDING IT ONLY TO THE EXTENT THAT ITS PROVISIONS
WOULD BE SUBJECT TO INVOCATION "DURING THE EXISTENCE OF ANY NATIONAL
EMERGENCY PROCLAIMED BY THE PRESIDENT."  66 STAT. 190.  THERE IS
PRACTICALLY NO LEGISLATIVE HISTORY ON THIS INCORPORATION OF THE 1918
STATUTE IN THE 1952 ACT APART FROM A COMMENT IN THE HOUSE REPORT THAT
THE PROVISIONS OF SEC. 215 ARE "INCORPORATED IN THE BILL  ...  IN
PRACTICALLY THE SAME FORM AS THEY NOW APPEAR IN THE ACT OF MAY 22,
2918."  H.R. REP.  NO. 1365, 82D CONG., 2D SESS. 53.  FOR THAT REASON,
THE LEGISLATIVE HISTORY OF THE 1918 ACT AND THE 1941 AMENDMENT, WHICH I
HAVE SET OUT AT SOME DETAIL, IS DOUBLY IMPORTANT IN ASCERTAINING THE
INTENT OF THE CONGRESS AS TO THE AUTHORITY OF THE SECRETARY TO DENY
PASSPORTS UNDER SEC. 215 OF THE 1952 ACT.  CF. UNITED STATES V. PLESHA,
352 U.S. 202, 205 (1957). 

AT THE TIME OF THE 1952 ACT, A NATIONAL EMERGENCY PROCLAIMED BY
PRESIDENT TRUMAN ON DECEMBER 16, 1950, IN RESPONSE TO THE KOREAN
CONFLICT, WAS - AND STILL IS TODAY - IN EXISTENCE.  PROC. NO. 2914, 64
STAT. A454.  IN RELIANCE ON THAT, THE PRESIDENT INVOKED THE TRAVEL
RESTRICTIONS OF SEC. 215 ON JANUARY 17, 1953.  PROC. NO. 3004, 67 STAT.
C31.  THE PROCLAMATION BY WHICH THIS WAS DONE CAREFULLY POINTED OUT
THAT NONE OF ITS PROVISIONS SHOULD BE INTERPRETED AS REVOKING ANY
REGULATION "HERETOFORE ISSUED RELATING TO THE DEPARTURE OF PERSONS
FROM, OR THEIR ENTRY INTO, THE UNITED STATES."  ID. AMONG THE
REGULATIONS THERETOFORE ISSUED WERE THOSE NOW ATTACKED RELATING TO THE
ISSUANCE OF PASSPORTS TO COMMUNISTS, FOR THEY HAD BEEN PROMULGATED TO
BE EFFECTIVE ON AUGUST 28, 1952, SHORTLY AFTER PASSAGE OF THE 1952
ACT.  17 FED. REG. 8013. 

CONGRESS, BY VIRTURE OF SEC. 215 OF THE 1952 ACT, HAS APPROVED
WHATEVER USE OF HIS DISCRETION THE SECRETARY HAD MADE PRIOR TO THE JUNE
1952 DATE OF THAT LEGISLATION.  (FN1)  THAT CONCLUSION NECESSARILY
FOLLOWS FROM THE FACT THAT SEC. 215 CONTINUED TO MAKE LEGAL EXIT OR
ENTRY TURN ON POSSESSION OF A PASSPORT, WITHOUT IN ANY WAY LIMITING THE
DISCRETIONARY PASSPORT POWER THERETOFORE EXERCISED BY THE SECRETARY. 
SEE UNITED STATES V. ALLEN-BRADLEY CO., 352 U.S. 306, 310-311 (1957);
ALLEN V. GRAND CENTRAL AIRCRAFT CO., 347 U.S. 535, 544-545 (1954);
UNITED STATES V. CERECEDO HERMANOS Y COMPANIA, 209 U.S. 337, 339
(1908).  BUT THE COURT THEN DETERMINES (1) THAT THE SECRETARY'S DENIAL
OF PASSPORTS IN PEACETIME EXTENDED TO ONLY TWO CATEGORIES OF CASES,
THOSE INVOLVING ALLEGIANCE AND THOSE INVOLVING CRIMINAL ACTIVITY, AND
(2) THAT THE SECRETARY'S WARTIME EXERCISE OF HIS DISCRETION, WHILE
ADMITTEDLY MORE RESTRICTIVE, HAS NO RELEVANCE TO THE PRACTICE WHICH
CONGRESS CAN BE SAID TO HAVE APPROVED IN 1952.  SINCE THE PRESENT
DENIALS DO NOT INVOLVE GROUNDS EITHER OF ALLEGIANCE OR CRIMINAL
ACTIVITY, THE COURT CONCLUDES THAT THEY WERE BEYOND THE PALE OF
CONGRESSIONAL AUTHORIZATION.  BOTH OF THE PROPOSITIONS SET OUT ABOVE
ARE VITAL TO THE COURT'S FINAL CONCLUSION.  NEITHER OF THEM HAS ANY
VALIDITY:  THE FIRST IS CONTRARY TO FACT, AND THE SECOND TO COMMON
SENSE. 

THE PEACETIME PRACTICE OF THE STATE DEPARTMENT INDISPUTABLY INVOLVED
DENIAL OF PASSPORTS FOR REASONS OF NATIONAL SECURITY.  THE REPORT OF
THE COMMISSION ON GOVERNMENT SECURITY (1957), 470-473, SUMMARIZES THE
DEPARTMENT'S POLICY ON GRANTING PASSPORTS TO COMMUNISTS BY EXCERPTS
FROM STATE DEPARTMENT DOCUMENTS.  SHORTLY AFTER THE 1917 RUSSIAN
REVOLUTION, THE DEPARTMENT "BECAME AWARE OF THE SCOPE AND DANGER OF THE
WORLDWIDE REVOLUTIONARY MOVEMENT AND THE ATTENDANT PURPOSE TO OVERTHROW
ALL EXISTING GOVERNMENTS, INCLUDING OUR OWN."  THEREAFTER "PASSPORTS
WERE REFUSED TO AMERICAN COMMUNISTS WHO DESIRED TO GO ABROAD FOR
INDOCTRINATION, INSTRUCTION, ETC.  THIS POLICY WAS CONTINUED UNTIL 1931
...  ."  FROM 1931 "UNTIL WORLD WAR II NO PERSONS WERE REFUSED
PASSPORTS BECAUSE THEY WERE COMMUNISTS."  AFTER WORLD WAR II, "AT FIRST
PASSPORTS WERE REFUSED," BUT UPON RECONSIDERATION OF THE MATTER IN
1948, "THE DECISION WAS MADE THAT PASSPORTS WOULD BE ISSUED TO
COMMUNISTS AND SUPPORTERS OF COMMUNISM WHO SATISFIED THE DEPARTMENT
THAT THEY DID NOT INTEND, WHILE ABROAD, TO ENGAGE IN THE PROMOTION OF
COMMUNIST ACTIVITIES."  AT THE SAME TIME, HOWEVER, IT WAS DECIDED THAT
"PASSPORTS SHOULD BE REFUSED TO PERSONS WHOSE PURPOSE IN TRAVELING
ABROAD WAS BELIEVED TO BE TO SUBVERT THE INTEREST OF THE UNITED
STATES."  LATER IN 1948 THE POLICY WAS CHANGED TO GIVE COMMUNIST
JOURNALISTS PASSPORTS EVEN THOUGH THEY WERE "ACTIVELY PROMOTING THE
COMMUNIST CAUSE."  NEARLY TWO YEARS LATER, IN SEPTEMBER 1950, THE
LATTER LENIENCY WAS REVERSED, AFTER IT WAS POINTED OUT "THAT THE
INTERNAL SECURITY ACT OF 1950 CLEARLY SHOWED THE DESIRE OF CONGRESS
THAT NO COMMUNISTS SHOULD BE ISSUED PASSPORTS OF THIS GOVERNMENT." 
(FN2)  THE MATTER WAS REFERRED TO THE DEPARTMENT'S LEGAL ADVISER, "WHO
AGREED THAT IT WAS THE DUTY OF THE STATE DEPARTMENT TO REFUSE PASSPORTS
TO ALL COMMUNISTS, INCLUDING JOURNALISTS." 

OTHER EVIDENCE OF PEACETIME DENIALS FOR SECURITY REASONS IS MORE
SCATTERED, BUT NEVERTHELESS EXISTENT.  MUCH OF IT CENTERS AROUND
OPPOSITION TO THE INTERNAL SECURITY ACT OF 1950, FOR ONE OF THE STATED
AIMS OF THAT LEGISLATION WAS DENIAL OF PASSPORTS TO COMMUNISTS.  THE
MINORITY REPORT OF THE SENATE COMMITTEE ON THE JUDICIARY OBJECTED, "BUT
THIS CAN BE DONE UNDER THE EXISTING DISCRETIONARY POWERS OF THE
SECRETARY OF STATE  ...  AS EVIDENCED BY THE RECENT DENIAL OR
CANCELLATION OF A PASSPORT TO PAUL ROBESON."  S. REP. NO. 2369, PART 2,
81ST CONG., 2D SESS. 10.  PRESIDENT TRUMAN, IN VETOING THAT ACT,
STATED:  "IT IS CLAIMED THAT THIS BILL WOULD DENY PASSPORTS TO
COMMUNISTS.  THE FACT IS THAT THE GOVERNMENT CAN AND DOES DENY
PASSPORTS TO COMMUNISTS UNDER EXISTING LAW."  96 CONG. REC. 15631. 
(FN3)

IN 1869 ATTORNEY GENERAL HOAR ADVISED THE SECRETARY OF STATE THAT
GOOD REASON EXISTED FOR THE PASSPORT POWER BEING DISCRETIONARY IN
NATURE, FOR IT MIGHT SOMETIMES BE "MOST INEXPEDIENT FOR THE PUBLIC
INTERESTS FOR THIS COUNTRY TO GRANT A PASSPORT TO A CITIZEN OF THE
UNITED STATES."  23 OP. ATTY. GEN. 509, 511.  AS AN EXAMPLE HE REFERRED
TO THE CASE OF "AN AVOWED ANARCHIST," FOR IF SUCH PERSON WERE TO SEEK A
PASSPORT, "THE PUBLIC INTERESTS MIGHT REQUIRE THAT HIS APPLICATION BE
DENIED."   IBID.  SEE ALSO, 13 OP. ATTY. GEN. 89, 92. 

ORDERS PROMULGATED BY THE PASSPORT OFFICE PERIODICALLY HAVE REQUIRED
DENIAL OF PASSPORTS TO "POLITICAL ADVENTURERS" AND "REVOLUTIONARY
RADICALS," THE LATTER PHRASE BEING DEFINED TO INCLUDE "THOSE WHO WISH
TO GO ABROAD TO TAKE PART IN THE POLITICAL OR MILITARY AFFAIRS OF
FOREIGN COUNTRIES IN WAYS WHICH WOULD BE CONTRARY TO THE POLICY OR
INIMICAL TO THE WELFARE OF THE UNITED STATES."  SEE, SHORTLY AFTER THE
END OF WORLD WAR I, PASSPORT OFFICE INSTRUCTIONS OF MAY 4, 1921; IN
1937, PASSPORT OFFICE INSTRUCTIONS OF JULY 30, 1937; IN 1948, FOREIGN
SERVICE REGULATIONS OF JULY 9, 1948. 

AN EVEN MORE SERIOUS ERROR OF THE COURT IS ITS DETERMINATION THAT THE
SECRETARY'S WARTIME USE OF HIS DISCRETION IS WHOLLY IRRELEVANT IN
DETERMINING WHAT DISCRETIONARY PRACTICES WERE APPROVED BY CONGRESS IN
ENACTMENT OF SEC. 215.  IN A WHOLLY REALISTIC SENSE THERE IS NO PEACE
TODAY, AND THERE WAS NO PEACE IN 1952.  AT BOTH TIMES THE STATE OF
NATIONAL EMERGENCY DECLARED BY THE PRESIDENT IN 1950, WHEREIN HE STATED
THAT "WORLD CONQUEST BY COMMUNIST IMPERIALISM IS THE GOAL OF THE FORCES
OF AGGRESSION THAT HAVE BEEN LOOSED UPON THE WORLD" AND THAT "THE
INCREASING MENACE OF THE FORCES OF COMMUNIST AGGRESSION REQUIRES THAT
THE NATIONAL DEFENSE OF THE UNITED STATES BE STRENGTHENED AS SPEEDILY
AS POSSIBLE," WAS IN FULL EFFECT.  PROC. NO. 2914, 64 STAT. A454.  IT
IS NOT A CASE, THEN, OF JUDGING WHAT MAY BE DONE IN PEACE BY WHAT HAS
BEEN DONE IN WAR.  PROFESSOR JAFFE HAS APTLY EXPOSED THE FALLACY UPON
WHICH THE MAJORITY PROCEEDS: 

"THE CRITERION HERE IS THE DEFENSE OF THE COUNTRY FROM EXTERNAL
ENEMIES.  IT IS ASSERTED THAT THE PRECEDENTS OF 'WAR' HAVE NO RELEVANCE
TO 'PEACE.'  BUT THE CRITICAL CONSIDERATION IS DEFENSE AGAINST AN
EXTERNAL ENEMY; AND COMMUNICATION ABROAD BETWEEN OUR CITIZENS AND THE
ENEMY CANNOT BY ITS NATURE BE CONTROLLED BY THE USUAL CRIMINAL
PROCESS.  THE FACTS IN A PARTICULAR CASE AS TO THE CITIZEN'S INTENTION
ARE INEVITABLY SPECULATIVE:  ALL IS TO BE DONE AFTER THE BIRD HAS
FLOWN.  NOW OUR CONGRESS AND THE ADMINISTRATION HAVE CONCLUDED THAT THE
COMMUNIST INTERNATIONAL IS A FOREIGN AND DOMESTIC ENEMY.  WE DEAL WITH
ITS DOMESTIC ASPECT BY CRIMINAL PROCESS; WE WOULD SEEM JUSTIFIED IN
DEALING WITH ITS EXTERNAL ASPECT BY EXIT CONTROL.  IF AN AVOWED
COMMUNIST IS GOING ABROAD, IT MAY BE ASSUMED THAT HE WILL TAKE COUNSEL
THERE WITH HIS FELLOWS, WILL ARRANGE FOR THE STEADY AND DEPENDABLE FLOW
OF CASH AND INFORMATION, AND DO HIS BIT TO PROMOTE THE PURPOSES OF THE
'CONSPIRACY.'"  JAFFE, THE RIGHT TO TRAVEL:  THE PASSPORT PROBLEM, 35
FOREIGN AFFAIRS 17, 26. 

WERE THIS A TIME OF PEACE, THERE MIGHT VERY WELL BE NO PROBLEM FOR US
TO DECIDE, SINCE PETITIONERS THEN WOULD NOT NEED A PASSPORT TO LEAVE
THE COUNTRY.  THE VERY STRUCTURE OF SEC. 215 IS SUCH THAT EITHER WAR OR
NATIONAL EMERGENCY IS PREREQUISITE TO IMPOSITION OF ITS RESTRICTIONS. 

INDEED, RATHER THAN BEING IRRELEVANT, THE WARTIME PRACTICE MAY BE THE
ONLY RELEVANT ONE, FOR THE DISCRETION WITH WHICH WE ARE CONCERNED IS A
DISCRETIONARY CONTROL OVER INTERNATIONAL TRAVEL.  YET ONLY IN TIMES OF
WAR AND NATIONAL EMERGENCY HAS A PASSPORT BEEN REQUIRED TO LEAVE OR
ENTER THIS COUNTRY, AND HENCE ONLY IN SUCH TIMES HAS PASSPORT POWER
NECESSARILY MEANT POWER TO CONTROL TRAVEL.  (FN4) 

FINALLY, WHILE DISTINGUISHING AWAY THE SECRETARY'S PASSPORT DENIALS
IN WARTIME, THE MAJORITY MAKES NO ATTEMPT TO DISTINGUISH THE
SECRETARY'S PRACTICE DURING PERIODS WHEN THERE HAS BEEN NO OFFICIAL
STATE OF WAR BUT WHEN NEVERTHELESS A PRESIDENTIAL PROCLAMATION OF
NATIONAL EMERGENCY HAS BEEN IN EFFECT, THE VERY SITUATION WHICH HAS
PREVAILED SINCE THE END OF WORLD WAR II.  THROUGHOUT THAT TIME, AS I
HAVE POINTED OUT, THE SECRETARY REFUSED PASSPORTS TO THOSE "WHOSE
PURPOSE IN TRAVELING ABROAD WAS BELIEVED TO BE TO SUBVERT THE INTEREST
OF THE UNITED STATES."  REPORT OF THE COMMISSION ON GOVERNMENT
SECURITY, SUPRA.  NUMEROUS SPECIFIC INSTANCES OF PASSPORT DENIALS ON
SECURITY GROUNDS DURING THE YEARS 1947-1951 WERE REPORTED IN A FEBRUARY
1952 LAW REVIEW ARTICLE, NEARLY HALF A YEAR PRIOR TO PASSAGE OF SEC.
215.  NOTE, PASSPORT REFUSALS FOR POLITICAL REASONS, 61 YALE L.J. 171. 

ON THIS MULTIPLE BASIS, THEN, I AM CONSTRAINED TO DISAGREE WITH THE
MAJORITY AS TO THE AUTHORITY OF THE SECRETARY TO DENY PETITIONERS'
APPLICATIONS FOR PASSPORTS.  THE MAJORITY'S RESOLUTION OF THE AUTHORITY
QUESTION PREVENTS IT FROM REACHING THE CONSTITUTIONAL ISSUES RAISED BY
PETITIONERS, RELATING TO CLAIMED UNLAWFUL DELEGATION OF LEGISLATIVE
POWER, VIOLATION OF FREE SPEECH AND ASSOCIATION UNDER THE FIRST
AMENDMENT, AND VIOLATION OF INTERNATIONAL TRAVEL UNDER THE FIFTH
AMENDMENT.  IN VIEW OF THAT, IT WOULD BE INAPPROPRIATE FOR ME, AS A
DISSENTER, TO CONSIDER THOSE QUESTIONS AT THIS TIME.  CF.  PETERS V.
HOBBY, 349 U.S. 331, 353-357 (1955).  ACCORDINGLY, I WOULD AFFIRM ON
THE ISSUE OF THE SECRETARY'S AUTHORITY TO REQUIRE THE AFFIDAVITS
INVOLVED IN THIS CASE, WITHOUT REACHING ANY CONSTITUTIONAL QUESTIONS. 

FN1  THIS IS NOT SERIOUSLY DISPUTED BY THE MAJORITY.  HOWEVER,
REFERENCE IS MADE TO A RELUCTANCE TO INTERPRET BROADLY THE PRACTICE OF
THE SECRETARY APPROVED BY CONGRESS IN THE 1952 ACT BECAUSE THE DENIAL
OF PASSPORTS ON SECURITY GROUNDS HAD NOT "JELLED" AT THE TIME OF THE
1926 ACT.  BUT THAT OVERLOOKS (1) THAT IT IS CONGRESSIONAL INTENT IN
THE 1952 STATUTE, NOT THE 1926 STATUTE, TO WHICH WE LOOK, AND (2) THAT
THERE IS ABUNDANT EVIDENCE, SET OUT IN THIS OPINION, OF SECURITY
DENIALS BEFORE AS WELL AS AFTER 1926. 

FN2  FOR A COMPREHENSIVE STORY OF COMMUNISM IN AMERICA INDICATING THE
NECESSITY FOR PASSPORT CONTROL, SEE HOOVER, MASTERS OF DECEIT (1958). 

FN3  TO THE SAME EFFECT SEE THE STATEMENT OF SENATOR KILGORE DURING
SENATE DEBATE ON THE ACT, 96 CONG. REC. 14538, AND AN AMENDMENT OFFERED
TO THE ACT IN BOTH THE HOUSE, 96 CONG. REC. 13756, AND SENATE, 96 CONG.
REC. 14599. 

FN4  PEACETIME EXERCISE OF THE PASSPORT POWER MAY STILL BE RELEVANT
FROM ANOTHER POINT OF VIEW, NAMELY, IF OTHER COUNTRIES HINGE ENTRY ON
POSSESSION OF A PASSPORT, THE RIGHT OF INTERNATIONAL TRAVEL OF A UNITED
STATES CITIZEN WHO CANNOT SECURE A PASSPORT WILL THEREBY BE CURTAILED. 
FOR THOUGH HE CAN GET OUT OF THIS COUNTRY, HE CANNOT GET INTO ANOTHER. 

..END :
























DAYTON V. DULLES 357 U.S. 144 


NO. 621.  ARGUED APRIL 10, 1958 - DECIDED JUNE 16, 1958 - 102 U.S. APP.
D.C. 372, 254 F.2D 71, REVERSED. 


AT A TIME WHEN AN ACT OF CONGRESS REQUIRED A PASSPORT FOR FOREIGN
TRAVEL BY CITIZENS IF A STATE OF NATIONAL EMERGENCY HAD BEEN DECLARED
BY THE PRESIDENT AND WHEN THE PROCLAMATION NECESSARY TO MAKE THE ACT
EFFECTIVE HAD BEEN MADE, THE SECRETARY OF STATE, AFTER ADMINISTRATIVE
HEARINGS, CONCLUDED THAT THE ISSUANCE OF A PASSPORT TO PETITIONER
"WOULD BE CONTRARY TO THE NATIONAL INTEREST" AND DENIED HIM A
PASSPORT.  THIS ACTION APPARENTLY WAS BASED ON PETITIONER'S ALLEGED
ASSOCIATION WITH VARIOUS COMMUNISTS AND WITH PERSONS SUSPECTED OF BEING
PART OF THE ROSENBERG ESPIONAGE RING, HIS ALLEGED PRESENCE AT AN
APARTMENT ALLEGEDLY USED FOR MICROFILMING MATERIAL OBTAINED FOR THE USE
OF A FOREIGN GOVERNMENT, AND UPON CONFIDENTIAL INFORMATION IN THE
POSSESSION OF THE GOVERNMENT WHICH WAS NOT REVEALED TO PETITIONER. 
HELD:  THE SECRETARY WAS NOT AUTHORIZED TO DENY THE PASSPORT FOR THESE
REASONS UNDER THE ACT OF JULY 3, 1926, 22 U.S.C. SEC. 211A, OR SEC. 215
OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 8 U.S.C.  SEC. 1185. 
KENT V. DULLES, ANTE, P. 116.  PP. 145-150. 

DAYTON V. DULLES, SECRETARY OF STATE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A NATIVE-BORN CITIZEN, IS A PHYSICIST WHO HAS BEEN
CONNECTED WITH VARIOUS FEDERAL PROJECTS AND WHO HAS BEEN ASSOCIATED AS
A TEACHER WITH SEVERAL OF OUR UNIVERSITIES.  IN MARCH 1954 HE APPLIED
FOR A PASSPORT TO ENABLE HIM TO TRAVEL TO INDIA IN ORDER TO ACCEPT A
POSITION AS RESEARCH PHYSICIST AT THE TATA INSTITUTE OF FUNDAMENTAL
RESEARCH, AFFILIATED WITH THE UNIVERSITY OF BOMBAY.  IN APRIL 1954 THE
DIRECTOR OF THE PASSPORT OFFICE ADVISED HIM THAT HIS APPLICATION WAS
DENIED BECAUSE THE DEPARTMENT OF STATE "FEELS THAT IT WOULD BE CONTRARY
TO THE BEST INTEREST OF THE UNITED STATES TO PROVIDE YOU PASSPORT
FACILITIES AT THIS TIME." 

PETITIONER CONFERRED WITH AN OFFICER OF THE PASSPORT OFFICE AND AS A
RESULT OF THAT CONVERSATION EXECUTED AN AFFIDAVIT (FN1) WHICH COVERED
THE WIDE RANGE OF MATTERS INQUIRED INTO AND WHICH STATED IN PART: 

"I AM NOT NOW AND I HAVE NEVER BEEN A MEMBER OF THE COMMUNIST PARTY. 

"WITH THE POSSIBLE EXCEPTION OF A CASUAL AND BRIEF ASSOCIATION WITH
THE WORK OF THE JOINT ANTI-FASCIST REFUGEE COMMITTEE FOR A FEW MONTHS
IN 1941 AND IN 1942 (ALL AS RELATED BELOW); I AM NOT NOW AND HAVE NEVER
BEEN A MEMBER OF ANY OF THE ORGANIZATIONS DESIGNATED ON THE ATTORNEY
GENERAL'S LIST (WHICH I HAVE CAREFULLY EXAMINED). 

"I AM NOT NOW ENGAGED AND I HAVE NEVER ENGAGED IN ANY ACTIVITIES
WHICH, SO FAR AS I KNOW OR AT ANY TIME KNEW, SUPPORT OR SUPPORTED THE
COMMUNIST MOVEMENT. 

"I WISH TO GO ABROAD FOR THE SOLE PURPOSE OF ENGAGING IN EXPERIMENTAL
RESEARCH IN PHYSICS AT THE TATA INSTITUTE OF FUNDAMENTAL RESEARCH IN
BOMBAY.  I AM NOT GOING ABROAD TO ENGAGE IN ANY ACTIVITIES WHICH, SO
FAR AS I KNOW OR CAN IMAGINE, WILL IN ANY WAY ADVANCE THE COMMUNIST
MOVEMENT." 

THE DIRECTOR OF THE PASSPORT OFFICE WROTE PETITIONER'S LAWYER IN
REPLY THAT THE DEPARTMENT HAD GIVEN CAREFUL CONSIDERATION TO THE
AFFIDAVIT AND ADDED, "IN VIEW OF CERTAIN FACTORS OF MR. DAYTON'S CASE
WHICH I AM NOT AT LIBERTY TO DISCUSS WITH HIM, THE DEPARTMENT MUST
ADHERE TO ITS PREVIOUS DECISION THAT IT WOULD BE CONTRARY TO THE BEST
INTERESTS OF THE UNITED STATES TO PROVIDE MR. DAYTON WITH PASSPORT
FACILITIES AT THIS TIME."  LATER THE DIRECTOR WROTE AGAIN, SAYING: 

"IN ARRIVING AT ITS DECISION TO REFUSE PASSPORT FACILITIES TO MR.
DAYTON, THE DEPARTMENT TOOK INTO CONSIDERATION HIS CONNECTION WITH THE
SCIENCE FOR VICTORY COMMITTEE AND HIS ASSOCIATION AT THAT TIME WITH
VARIOUS COMMUNISTS.  HOWEVER, THE DETERMINING FACTOR IN THE CASE WAS
MR. DAYTON'S ASSOCIATION WITH PERSONS SUSPECTED OF BEING PART OF THE
ROSENBERG ESPIONAGE RING AND HIS ALLEGED PRESENCE AT AN APARTMENT IN
NEW YORK WHICH WAS ALLEGEDLY USED FOR MICROFILMING MATERIAL OBTAINED
FOR THE USE OF A FOREIGN GOVERNMENT."  THEREUPON PETITIONER, PURSUANT
TO THE PASSPORT REGULATIONS OF THE SECRETARY OF STATE, AS AMENDED, 22
CFR SEC. 51.1 ET SEQ., FILED A PETITION OF APPEAL, WITH THE BOARD OF
PASSPORT APPEALS.  (FN2)  HE ALSO REQUESTED, PURSUANT TO THE
REGULATIONS, (FN3) INFORMATION FROM THE BOARD OF PARTICULARS CONCERNING
THREE ITEMS:  (1) PETITIONER'S ALLEGED "ASSOCIATION WITH VARIOUS
COMMUNISTS"; (2) HIS "ASSOCIATION WITH PERSONS SUSPECTED OF BEING PART
OF THE ROSENBERG ESPIONAGE RING"; AND (3) HIS "ALLEGED PRESENCE AT AN
APARTMENT IN NEW YORK WHICH WAS ALLEGEDLY USED FOR MICROFILMING
MATERIAL OBTAINED FOR THE USE OF A FOREIGN GOVERNMENT."  THE BOARD'S
REPLY CONTAINED SOME, BUT VERY LITTLE, OF THE INFORMATION REQUESTED;
AND IT STATED: 

"THE FILE CONTAINS INFORMATION INDICATING THAT THE APPLICANT WAS
PRESENT AT 65 MORTON STREET, NEW YORK CITY IN THE SUMMER OF 1949 (JULY
OR AUGUST) AND AT APARTMENT 61, 65 MORTON STREET, NEW YORK CITY, DURING
THE MONTH OF JANUARY 1950.  THE APPLICANT'S RELATIONSHIP, IF ANY (PAST
OR PRESENT), WITH THE FOLLOWING-NAMED PERSONS IS CONSIDERED PERTINENT
TO THE BOARD'S REVIEW AND CONSIDERATION OF THE CASE:  MARCEL SCHERER,
ROSE SEGURE, SANDRA COLLINS, FRANK COLLINS, BERNARD PETERS, KURT FRITZ,
KARL SITTE, LOUIS S. WEISS, ALFRED SARANT, AND WILLIAM PERL." 

A HEARING WAS HELD (FN4) AT WHICH WITNESSES FOR PETITIONER AND FOR
THE STATE DEPARTMENT TESTIFIED.   PURSUANT TO THE REGULATIONS (FN5) THE
BOARD ANNOUNCED, OVER PETITIONER'S PROTEST, THAT IT WOULD CONSIDER "A
CONFIDENTIAL FILE COMPOSED OF INVESTIGATIVE REPORTS FROM GOVERNMENT
AGENCIES" WHICH PETITIONER WOULD NOT BE ALLOWED TO EXAMINE.  (FN6)
LATER PETITIONER WAS ADVISED BY THE ACTING SECRETARY OF STATE THAT THE
BOARD HAD SUBMITTED ITS RECOMMENDATION AND THAT THE SECRETARY, AFTER "A
REVIEW OF THE ENTIRE RECORD AND ON THE BASIS OF ALL THE EVIDENCE,
INCLUDING THAT CONTAINED IN CONFIDENTIAL REPORTS OF INVESTIGATION," HAD
DENIED THE APPLICATION.  THE DENIAL WAS RESTED SPECIFICALLY UPON SEC.
51.135 OF THE REGULATIONS.  (FN7) 

PETITIONER THEN BROUGHT SUIT IN THE DISTRICT COURT FOR DECLARATORY
RELIEF.  THE DISTRICT COURT ENTERED SUMMARY JUDGMENT FOR THE
SECRETARY.  THE COURT OF APPEALS REVERSED, 99 U.S. APP. D.C. 47, 237
F.2D 43, AND REMANDED THE CASE TO THE SECRETARY FOR RECONSIDERATION IN
THE LIGHT OF ITS EARLIER DECISION IN BOUDIN V. DULLES, 98 U.S. APP.
D.C. 305, 235 F.2D 532. 

ON REMAND THE SECRETARY WITHOUT FURTHER HEARING DENIED THE
APPLICATION UNDER SEC. 51.135(C), (FN8) SAYING THAT "THE ISSUANCE OF A
PASSPORT WOULD BE CONTRARY TO THE NATIONAL INTEREST."  THE SECRETARY AT
THIS ITME FILED A DOCUMENT CALLED "DECISION AND FINDINGS" WHICH IS
REPRODUCED AS AN APPENDIX TO THIS OPINION. 

THE DISTRICT COURT AGAIN GRANTED SUMMARY JUDGMENT FOR THE SECRETARY,
146 F. SUPP. 876; AND THE COURT OF APPEALS AFFIRMED BY A DIVIDED VOTE,
102 U.S. APP. D.C. 372, 254 F.2D 71.  THE CASE IS HERE ON A PETITION
FOR A WRIT OF CERTIORARI.  355 U.S. 911. 

THE QUESTION MOST DISCUSSED IN THE BRIEFS AND ON ORAL ARGUMENT IS
WHETHER THE HEARING ACCORDED PETITIONER SATISFIED THE REQUIREMENTS OF
DUE PROCESS.  A MAJORITY OF THE COURT THINKS WE NEED NOT REACH THAT
CONSTITUTIONAL QUESTION, SINCE ON THEIR FACE THESE FINDINGS SHOW ONLY A
DENIAL OF A PASSPORT FOR REASONS WHICH WE HAVE TODAY HELD TO BE
IMPERMISSIBLE.  KENT V. DULLES, ANTE, P. 116.  WHETHER THERE ARE
UNDISCLOSED GROUNDS ADEQUATE TO SUSTAIN THE SECRETARY'S ACTION IS NOT
HERE FOR DECISION.  REVERSED. 

FN1  THE PASSPORT REGULATIONS OF THE SECRETARY OF STATE, AS AMENDED,
22 CFR SEC. 51.142, PROVIDE: 

"AT ANY STAGE OF THE PROCEEDINGS IN THE PASSPORT DIVISION OR BEFORE
THE BOARD, IF IT IS DEEMED NECESSARY, THE APPLICANT MAY BE REQUIRED, AS
A PART OF HIS APPLICATION, TO SUBSCRIBE, UNDER OATH OR AFFIRMATION, TO
A STATEMENT WITH RESPECT TO PRESENT OR PAST MEMBERSHIP IN THE COMMUNIST
PARTY.  IF APPLICANT STATES THAT HE IS A COMMUNIST, REFUSAL OF A
PASSPORT IN HIS CASE WILL BE WITHOUT FURTHER PROCEEDINGS." 

FN2  SEC. 51.138.  "IN THE EVENT OF A DECISION ADVERSE TO THE
APPLICANT, HE SHALL BE ENTITLED TO APPEAL HIS CASE TO THE BOARD OF
PASSPORT APPEALS PROVIDED FOR IN SEC. 51.139." 

SEC. 51.139.  "THERE IS HEREBY ESTABLISHED WITHIN THE DEPARTMENT OF
STATE A BOARD OF PASSPORT APPEALS, HEREINAFTER REFERRED TO AS THE
BOARD, COMPOSED OF NOT LESS THAN THREE OFFICERS OF THE DEPARTMENT TO BE
DESIGNATED BY THE SECRETARY OF STATE.  THE BOARD SHALL ACT ON ALL
APPEALS UNDER SEC. 51.138.  THE BOARD SHALL ADOPT AND MAKE PUBLIC ITS
OWN RULES OF PROCEDURE, TO BE APPROVED BY THE SECRETARY, WHICH SHALL
PROVIDE THAT ITS DUTIES IN ANY CASE MAY BE PERFORMED BY A PANEL OF NOT
LESS THAN THREE MEMBERS ACTING BY MAJORITY DETERMINATION.  THE RULES
SHALL ACCORD APPLICANT THE RIGHT TO A HEARING AND TO BE REPRESENTED BY
COUNSEL, AND SHALL ACCORD APPLICANT AND EACH WITNESS THE RIGHT TO
INSPECT THE TRANSCRIPT OF HIS OWN TESTIMONY. 

FN3  SEC. 51.162.  "THE PURPOSE OF THE HEARING IS TO PERMIT APPLICANT
TO PRESENT ALL INFORMATION RELEVANT AND MATERIAL TO THE DECISION IN HIS
CASE.  APPLICANT MAY, AT THE TIME OF FILING HIS PETITION, ADDRESS A
REQUEST IN WRITING TO THE BOARD FOR SUCH ADDITIONAL INFORMATION OR
EXPLANATION AS MAY BE NECESSARY TO THE PREPARATION OF HIS CASE.  IN
CONFORMITY WITH THE RELEVANT LAWS AND REGULATIONS, THE BOARD SHALL PASS
PROMPTLY AND FINALLY UPON ALL SUCH REQUESTS AND SHALL ADVISE APPLICANT
OF ITS DECISION.  THE BOARD SHALL TAKE WHATEVER ACTION IT DEEMS
NECESSARY TO INSURE THE APPLICANT OF A FULL AND FAIR CONSIDERATION OF
HIS CASE." 

FN4  SECTION 51.163 OF THE REGULATIONS PROVIDES: 

"THE PASSPORT FILE AND ANY OTHER PERTINENT GOVERNMENT FILES SHALL BE
CONSIDERED AS PART OF THE EVIDENCE IN EACH CASE WITHOUT TESTIMONY OR
OTHER FORMALITY AS TO ADMISSIBILITY.  SUCH FILES MAY NOT BE EXAMINED BY
THE APPLICANT, EXCEPT THE APPLICANT MAY EXAMINE HIS APPLICATION OR ANY
PAPER WHICH HE HAS SUBMITTED IN CONNECTION WITH HIS APPLICATION OR
APPEAL.  THE APPLICANT MAY APPEAR AND TESTIFY IN HIS OWN BEHALF, BE
REPRESENTED BY COUNSEL SUBJECT TO THE PROVISIONS OF SEC. 51.161,
PRESENT WITNESSES AND OFFER OTHER EVIDENCE IN HIS OWN BEHALF.  THE
APPLICANT AND ALL WITNESSES MAY BE CROSS-EXAMINED BY ANY MEMBER OF THE
BOARD OR ITS COUNSEL.  IF ANY WITNESS WHOM THE APPLICANT WISHES TO CALL
IS UNABLE TO APPEAR PERSONALLY, THE BOARD MAY, IN ITS DISCRETION,
ACCEPT AN AFFIDAVIT BY HIM OR ORDER EVIDENCE TO BE TAKEN BY
DEPOSITION.  SUCH DEPOSITIONS MAY BE TAKEN BEFORE ANY PERSON DESIGNATED
BY THE BOARD AND SUCH DESIGNEE IS HEREBY AUTHORIZED TO ADMINISTER OATHS
OR AFFIRMATIONS FOR THE PURPOSE OF THE DEPOSITIONS.  THE BOARD SHALL
CONDUCT THE HEARING PROCEEDINGS IN SUCH MANNER AS TO PROTECT FROM
DISCLOSURE INFORMATION AFFECTING THE NATIONAL SECURITY OR TENDING TO
DISCLOSE OR COMPROMISE INVESTIGATIVE SOURCES OR METHODS." 

FN5  NOTE 4, SUPRA. 

FN6  THE REGULATIONS IN PROVIDING FOR THAT CONTINGENCY STATE: 

SEC. 51.170.  "IN DETERMINING WHETHER THERE IS A PREPONDERANCE OF
EVIDENCE SUPPORTING THE DENIAL OF A PASSPORT THE BOARD SHALL CONSIDER
THE ENTIRE RECORD, INCLUDING THE TRANSCRIPT OF THE HEARING AND SUCH
CONFIDENTIAL INFORMATION AS IT MAY HAVE IN ITS POSSESSION.  THE BOARD
SHALL TAKE INTO CONSIDERATION THE INABILITY OF THE APPLICANT TO MEET
INFORMATION OF WHICH HE HAS NOT BEEN ADVISED, SPECIFICALLY OR IN
DETAIL, OR TO ATTACK THE CREDIBILITY OF CONFIDENTIAL INFORMANTS." 

FN7  THAT SECTION PROVIDES: 

"IN ORDER TO PROMOTE THE NATIONAL INTEREST BY ASSURING THAT PERSONS
WHO SUPPORT THE WORLD COMMUNIST MOVEMENT OF WHICH THE COMMUNIST PARTY
IS AN INTEGRAL UNIT MAY NOT, THROUGH USE OF UNITED STATES PASSPORTS,
FURTHER THE PURPOSES OF THAT MOVEMENT, NO PASSPORT, EXCEPT ONE LIMITED
FOR DIRECT AND IMMEDIATE RETURN TO THE UNITED STATES, SHALL BE ISSUED
TO:  "(A)  PERSONS WHO ARE MEMBERS OF THE COMMUNIST PARTY OR WHO HAVE
RECENTLY TERMINATED SUCH MEMBERSHIP UNDER SUCH CIRCUMSTANCES AS TO
WARRANT THE CONCLUSION - NOT OTHERWISE REBUTTED BY THE EVIDENCE - THAT
THEY CONTINUE TO ACT IN FURTHERANCE OF THE INTERESTS AND UNDER THE
DISCIPLINE OF THE COMMUNIST PARTY: 

"(B)  PERSONS, REGARDLESS OF THE FORMAL STATE OF THEIR AFFILIATION
WITH THE COMMUNIST PARTY, WHO ENGAGE IN ACTIVITIES WHICH SUPPORT THE
COMMUNIST MOVEMENT UNDER SUCH CIRCUMSTANCES AS TO WARRANT THE
CONCLUSION - NOT OTHERWISE REBUTTED BY THE EVIDENCE - THAT THEY HAVE
ENGAGED IN SUCH ACTIVITIES AS A RESULT OF DIRECTION, DOMINATION, OR
CONTROL EXERCISED OVER THEM BY THE COMMUNIST MOVEMENT: 

"(C)  PERSONS, REGARDLESS OF THE FORMAL STATE OF THEIR AFFILIATION
WITH THE COMMUNIST PARTY, AS TO WHOM THERE IS REASON TO BELIEVE, ON THE
BALANCE OF ALL THE EVIDENCE, THAT THEY ARE GOING ABROAD TO ENGAGE IN
ACTIVITIES WHICH WILL ADVANCE THE COMMUNIST MOVEMENT FOR THE PURPOSE,
KNOWINGLY AND WILFULLY OF ADVANCING THAT MOVEMENT." 

FN8  NOTE 7, SUPRA.

                              APPENDIX TO OPINION OF THE COURT. 

                     DECISION AND FINDINGS OF THE SECRETARY OF
STATE IN

                               THE CASE OF WELDON BRUCE DAYTON 

I HAVE EXAMINED THE FILES OF THE DEPARTMENT OF STATE CONCERNING THE
PASSPORT APPLICATION OF WELDON BRUCE DAYTON, INCLUDING THE PROCEEDINGS
IN THE PASSPORT OFFICE AND BEFORE THE BOARD OF PASSPORT APPEALS,
INCLUDING CONFIDENTIAL SECURITY INFORMATION, AND HAVE FOUND AND
CONCLUDED AS FOLLOWS:

                                              I. 

A. I FIND THAT APPLICANT WAS ACTIVE IN THE SCIENCE FOR VICTORY
COMMITTEE WHILE AT THE UNIVERSITY OF CALIFORNIA DURING 1943-44, SERVING
AS CHAIRMAN OF THE ORGANIZATION DURING MUCH OF THAT PERIOD.  AS
CHAIRMAN HE ASSOCIATED WITH FRANK AND SANDRA COLLINS, AND ROSE SEGURE,
WHO HAD BEEN INSTRUMENTAL IN ORAGNIZING THE SAID ORGANIZATION.  THE
FINDING IS BASED ON INFORMATION CONTAINED IN THE OPEN RECORD, INCLUDING
APPLICANT'S OWN STATEMENTS. 

B. CONFIDENTIAL INFORMATION CONTAINED IN THE FILES OF THE DEPARTMENT
OF STATE, CONSTITUTING A PART OF THE RECORD CONSIDERED BY THE PASSPORT
OFFICE, THE BOARD OF PASSPORT APPEALS, AND MYSELF, INDICATES THAT THE
ABOVE-NAMED ORGANIZATION WAS CONCEIVED AND ORGANIZED BY COMMUNIST PARTY
OFFICIALS AS A FRONT FOR PROPAGANDA AND ESPIONAGE ACTIVITIES; AND THAT
FRANK AND SANDRA COLLINS AND ROSE SEGURE WERE MEMBERS OF THE COMMUNIST
PARTY AT THE TIME OF THEIR ASSOCIATION WITH APPLICANT AND THE SCIENCE
FOR VICTORY COMMITTEE. 
 II. 

A. I FIND THAT DURING THE PERIOD 1946-1950, AT ITHACA, NEW YORK,
APPLICANT MAINTAINED A CLOSE ASSOCIATION AND RELATIONSHIP WITH ONE
ALFRED SARANT.  AT APPLICANT'S INVITATION, SARANT AND HIS WIFE LIVED IN
APPLICANT'S HOME FOR A PERIOD OF EIGHT MONTHS IN 1947-1948, PENDING THE
COMPLETION OF THE SARANT HOME NEXT DOOR TO APPLICANT'S HOME. 
THEREAFTER DAYTON AND SARANT WERE NEIGHBORS UNTIL JULY, 1950.  ON
APPROXIMATELY JULY 18, 1950, SARANT BECAME THE SUBJECT OF INTENSIVE
INTERROGATION BY THE FEDERAL BUREAU OF INVESTIGATION.  APPROXIMATELY A
WEEK AFTER THE INTERROGATION HAD BEGUN SARANT DEPARTED FROM ITHACA AND
SUBSEQUENTLY ENTERED MEXICO WITH APPLICANT'S WIFE.  THIS FINDING IS
BASED ON INFORMATION CONTAINED IN THE OPEN RECORD, INCLUDING
APPLICANT'S OWN STATEMENTS. 

B. CONFIDENTIAL INFORMATION CONTAINED IN THE FILES OF THE DEPARTMENT
OF STATE, CONSTITUTING A PART OF THE RECORD CONSIDERED BY THE PASSPORT
OFFICE, THE BOARD OF PASSPORT APPEALS, AND MYSELF, ESTABLISHES WITH
RESPECT TO ALFRED SARANT THAT HE WAS AN ACTIVE MEMBER OF THE COMMUNIST
PARTY; THAT HE ADMITTED SAID MEMBERSHIP DURING THE YEARS 1943 AND 1944;
AND THAT HE WAS INVOLVED IN THE ESPIONAGE APPARATUS OF JULIUS
ROSENBERG. 

                                                  III. 

A. I FIND THAT THE APPLICANT WAS PRESENT DURING 1949 AND 1950, ON
MORE THAN ONE OCCASION, IN THE APARTMENT BUILDING AT 65 MORTON STREET,
NEW YORK CITY, IN WHICH ALFRED SARANT WAS LESSEE OF APARTMENT 6-I.
THIS FINDING IS BASED ON INFORMATION CONTAINED IN THE OPEN RECORD. 

B. CONFIDENTIAL INFORMATION CONTAINED IN THE FILES OF THE DEPARTMENT
OF STATE, CONSTITUTING A PART OF THE RECORD CONSIDERED BY THE PASSPORT
OFFICE, THE BOARD OF PASSPORT APPEALS, AND MYSELF, INDICATES THAT
SARANT'S APARTMENT AT 65 MORTON STREET, NEW YORK CITY, WAS USED BY
JULIUS ROSENBERG AND OTHER MEMBERS OF HIS SPY RING FOR THE MICROFILMING
OF CLASSIFIED UNITED STATES GOVERNMENT DOCUMENTS WHICH WERE ULTIMATELY
TRANSFERRED TO A FOREIGN POWER. 

                   IV. 

A. I FIND THAT SINCE 1938 THE APPLICANT, AN EXPERIENCED PHYSICIST,
HAS MAINTAINED A CLOSE ASSOCIATION AND RELATIONSHIP WITH ONE BERNARD
PETERS; THAT PETERS WAS RESPONSIBLE FOR THE APPLICANT'S OFFER OF
EMPLOYMENT AT THE TATA INSTITUTE OF FUNDAMENTAL RESEARCH, BOMBAY,
INDIA; AND THAT ONE OF THE PRIMARY STATED PURPOSES OF THE APPLICANT'S
PROPOSED TRAVEL ABROAD IS TO WORK IN CLOSE COLLABORATION WITH PETERS AT
THE TATA INSTITUTE.  THIS FINDING IS BASED ON INFORMATION CONTAINED IN
THE OPEN RECORD, INCLUDING APPLICANT'S OWN STATEMENTS. 

B. CONFIDENTIAL INFORMATION CONTAINED IN THE FILES OF THE DEPARTMENT
OF STATE, CONSTITUTING A PART OF THE RECORD CONSIDERED BY THE PASSPORT
OFFICE, THE BOARD OF PASSPORT APPEALS, AND MYSELF, INDICATES THAT
BERNARD PETERS, WHO RECENTLY RENOUNCED HIS AMERICAN CITIZENSHIP, HAS
HELD MEMBERSHIP IN THE COMMUNIST PARTY OUTSIDE OF THE UNITED STATES;
HAS ENGAGED IN NUMEROUS COMMUNIST ACTIVITIES BOTH IN THIS COUNTRY AND
ABROAD; AND IS SUSPECTED OF BEING A COMMUNIST ESPIONAGE AGENT. 

                        V. 

I HAVE REASON TO BELIEVE, ON THE BALANCE OF ALL THE EVIDENCE, THAT
THE APPLICANT IS GOING ABROAD TO ENGAGE IN ACTIVITIES WHICH WILL
ADVANCE THE COMMUNIST MOVEMENT FOR THE PURPOSE, KNOWINGLY AND WILFULLY
OF ADVANCING THAT MOVEMENT.  I HAVE REACHED THIS CONCLUSION ON THE
BASIS OF THE FOREGOING FINDINGS TOGETHER WITH THE CONFIDENTIAL
INFORMATION RELATING THERETO, AS WELL AS OTHER CONFIDENTIAL INFORMATION
CONTAINED IN THE FILES OF THE DEPARTMENT OF STATE, THE DISCLOSURE OF
WHICH MIGHT PREJUDICE THE CONDUCT OF UNITED STATES FOREIGN RELATIONS. 
I HAVE ALSO TAKEN INTO CONSIDERATION THE SERIOUS DOUBTS AS TO
APPLICANT'S GENERAL CREDIBILITY RAISED BY THE APPLICANT'S DENIAL IN THE
FACE OF CONVINCING CONTRARY EVIDENCE, INCLUDING THE ORAL TESTIMONY OF
THREE APPARENTLY DISINTERESTED WITNESSES OF EVER HAVING BEEN PRESENT AT
65 MORTON STREET.  THE PASSPORT APPLICATION OF WELDON BRUCE DAYTON IS
THEREFORE DENIED UNDER SECTION 51.135(C) OF THE PASSPORT REGULATIONS
(22 CFR SEC. 51.135(C)), AND BECAUSE THE ISSUANCE OF A PASSPORT WOULD
BE CONTRARY TO THE NATIONAL INTEREST. 

                VI. 

THE CONFIDENTIAL INFORMATION REFERRED TO IN PARAGRAPHS IB), IIB),
IIIB) AND IVB) ABOVE RELATES TO THE INTERNAL SECURITY OF THE UNITED
STATES.  THE SUBSTANCE OF THIS CONFIDENTIAL INFORMATION WAS DISCLOSED
TO THE APPLICANT DURING THE CONSIDERATION OF HIS PASSPORT APPLICATION. 
TO DISCLOSE PUBLICLY THE SOURCES AND DETAILS OF THIS INFORMATION WOULD,
IN MY JUDGMENT, BE DETRIMENTAL TO OUR NATIONAL INTEREST BY COMPROMISING
INVESTIGATIVE SOURCES AND METHODS AND SERIOUSLY INTERFERING WITH THE
ABILITY OF THIS DEPARTMENT AND THE EXECUTIVE BRANCH TO OBTAIN RELIABLE
INFORMATION AFFECTING OUR INTERNAL SECURITY.  MOREOVER, IT WOULD HAVE
AN ADVERSE EFFECT UPON OUR ABILITY TO OBTAIN AND UTILIZE INFORMATION
FROM SOURCES ABROAD AND INTERFERE WITH OUR ESTABLISHED RELATIONSHIPS IN
THE SECURITY AND INTELLIGENCE AREA; AND MIGHT, WITH RESPECT TO
INFORMATION REFERRED TO IN PARAGRAPH V, PREJUDICE THE INTEREST OF
UNITED STATES FOREIGN RELATIONS.  DATE:  OCTOBER 4, 1956. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON, MR. JUSTICE HARLAN,
AND MR. JUSTICE WHITTAKER CONCUR, DISSENTING. 

ON THE GROUNDS STATED IN MY DISSENT TO KENT V. DULLES, ANTE, P. 130,
ALSO DECIDED THIS DAY, I THINK THE SECRETARY OF STATE IS AUTHORIZED TO
DENY A PASSPORT TO AN APPLICANT WHO IS GOING ABROAD WITH THE PURPOSE OF
ENGAGING IN ACTIVITIES THAT WOULD ADVANCE THE COMMUNIST CAUSE.  BECAUSE
THE MAJORITY DOES NOT CONSIDER ANY OF THE CONSTITUTIONAL ISSUES RAISED
BY PETITIONER, IT WOULD BE INAPPROPRIATE FOR ME, AS A DISSENTER, TO
CONSIDER THEM AT THIS TIME.  CF. PETERS V. HOBBY, 349 U.S. 331, 353-357
(1955).  ACCORDINGLY, I WOULD AFFIRM ON THE QUESTION OF AUTHORITY
WITHOUT REACHING ANY CONSTITUTIONAL ISSUE. 
..END :









UNITED STATES V. CENTRAL EUREKA MINING CO. 357 U.S. 155 


NO. 29.  ARGUED JANUARY 7, 1958 - DECIDED JUNE 16, 1958 - 134 CT. CL. 1,
130, 138 F. SUPP. 281, 146 F. SUPP. 476, REVERSED. 


IN 1942, THE WAR PRODUCTION BOARD ISSUED AN ORDER REQUIRING
NONESSENTIAL GOLD MINES, INCLUDING THOSE OF RESPONDENTS, TO CEASE
OPERATING; BUT THE GOVERNMENT DID NOT OCCUPY, USE OR TAKE PHYSICAL
POSSESSION OF THE GOLD MINES OR THE EQUIPMENT CONNECTED WITH THEM.  THE
PURPOSE OF THE ORDER WAS TO CONSERVE EQUIPMENT AND MANPOWER FOR
ESSENTIAL WAR USES.  CLAIMING THAT THE ORDER AMOUNTED TO A TAKING OF
THEIR RIGHT TO MINE GOLD DURING THE LIFE OF THE ORDER, RESPONDENTS SUED
THE GOVERNMENT IN THE COURT OF CLAIMS FOR COMPENSATION.  HELD: 

1.  THE SPECIAL JURISDICTIONAL ACT OF JULY 14, 1952, GRANTING THE
COURT OF CLAIMS JURISDICTION TO HEAR AND DETERMINE ACTIONS BROUGHT
WITHIN A YEAR FROM THAT DATE ON THE CLAIMS OF OWNERS OR OPERATORS OF
GOLD MINES FOR LOSSES ALLEGEDLY RESULTING FROM THE WAR PRODUCTION
BOARD'S ORDER, "NOTWITHSTANDING ANY STATUTE OF LIMITATIONS, LACHES, OR
LAPSE OF TIME," WAS NO MORE THAN A WAIVER OF DEFENSES BASED ON THE
PASSAGE OF TIME.  IT WAS NOT A CONGRESSIONAL MANDATE TO AWARD
COMPENSATION FOR LOSSES RESULTING FROM THE ORDER.  PP. 162-165. 

2.  THE BOARD'S ORDER DID NOT CONSTITUTE A TAKING OF PRIVATE PROPERTY
FOR PUBLIC USE WITHIN THE MEANING OF THE FIFTH AMENDMENT, AND
RESPONDENTS ARE NOT ENTITLED TO COMPENSATION.  PP. 165-169. 

UNITED STATES V. CENTRAL EUREKA MINING CO. ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

IN THE INTEREST OF NATIONAL DEFENSE, THE WAR PRODUCTION BOARD, IN
1942, ISSUED ITS LIMITATION ORDER L-208 (FN1) ORDERING NONESSENTIAL
GOLD MINES TO CLOSE DOWN.  THIS LITIGATION WAS INSTITUTED IN THE COURT
OF CLAIMS TO RECOVER COMPENSATION FROM THE UNITED STATES FOR ITS
ALLEGED TAKING, UNDER SUCH ORDER, OF RESPONDENTS' RIGHTS TO OPERATE
THEIR RESPECTIVE GOLD MINES.  TWO ISSUES ARE NOW PRESENTED.  FIRST,
WHETHER THE ACT OF JULY 14, 1952, (FN2) GRANTING JURISDICTION TO THE
COURT OF CLAIMS TO ENTERTAIN THE CLAIMS ARISING OUT OF L-208, WAS A
MANDATE TO THAT COURT TO AWARD COMPENSATION FOR WHATEVER LOSSES WERE
SUFFERED AS A RESULT OF L-208, OR WHETHER IT AMOUNTED MERELY TO A
WAIVER BY THE UNITED STATES OF DEFENSES BASED ON THE PASSAGE OF TIME. 
FOR THE REASONS HEREAFTER STATED, WE HOLD THAT IT WAS THE LATTER.  WE,
THEREFORE, REACH THE SECOND QUESTION - WHETHER L-208 CONSTITUTED A
TAKING OF PRIVATE PROPERTY FOR PUBLIC USE WITHIN THE MEANING OF THE
FIFTH AMENDMENT.  (FN3)  FOR THE REASONS HEREAFTER STATED, WE HOLD THAT
IT DID NOT. 

EARLY IN 1941, IT BECAME APPARENT TO THOSE IN CHARGE OF THE NATION'S
DEFENSE MOBILIZATION THAT WE FACED A CRITICAL SHORTAGE OF NONFERROUS
METALS, NOTABLY COPPER, AND A COMPARABLE SHORTAGE OF MACHINERY AND
SUPPLIES TO PRODUCE THEM.  RESPONSIVE TO THIS SITUATION, THE OFFICE OF
PRODUCTION MANAGEMENT (OPM) AND ITS SUCCESSOR, THE WAR PRODUCTION BOARD
(WPB), ISSUED A SERIES OF PREFERENCE ORDERS.  THESE GAVE THE PRODUCERS
OF MINING MACHINERY AND SUPPLIES RELATIVELY HIGH PRIORITIES FOR THE
ACQUISITION OF NEEDED MATERIALS.  THEY ALSO GAVE TO THOSE MINES, WHICH
WERE DEEMED IMPORTANT FROM THE STANDPOINT OF DEFENSE OR ESSENTIAL
CIVILIAN NEEDS, A HIGH PRIORITY IN THE ACQUISITION OF SUCH MACHINERY. 
GOLD MINES WERE CLASSIFIED AS NONESSENTIAL AND EVENTUALLY WERE
RELEGATED TO THE LOWEST PRIORITY RATING.  THESE ORDERS PREVENTED THE
MINES OPERATED BY RESPONDENTS FROM ACQUIRING NEW MACHINERY OR SUPPLIES
SO THAT, BY MARCH OF 1942, RESPONDENTS WERE REDUCED TO USING ONLY THE
MACHINERY AND SUPPLIES WHICH THEY HAD ON HAND. 

SOON THEREAFTER, A SEVERE SHORTAGE OF SKILLED LABOR DEVELOPED IN THE
NONFERROUS METAL MINES.  THIS WAS DUE IN PART TO THE EXPANDING NEED FOR
NONFERROUS METALS, AND IN PART TO A DEPLETION OF MINING MANPOWER AS A
RESULT OF THE MILITARY DRAFT AND THE ATTRACTION OF HIGHER WAGES PAID BY
OTHER INDUSTRIES.  IT BECAME APPARENT THAT THE ONLY RESERVOIR OF
SKILLED MINING LABOR WAS THAT WHICH REMAINED IN THE GOLD MINES. 
PRESSURE WAS BROUGHT TO BEAR ON THE WPB TO CLOSE DOWN THE GOLD MINES
WITH THE EXPECTATION THAT MANY GOLD MINERS WOULD THUS BE ATTRACTED TO
THE NONFERROUS MINES. 

AS A PART OF THIS CONSERVATION PROGRAM, WPB, ON OCTOBER 8, 1942,
ISSUED LIMITATION ORDER L-208 (FN4) NOW BEFORE US.  THAT ORDER WAS
ADDRESSED EXCLUSIVELY TO THE GOLD MINING INDUSTRY WHICH IT CLASSIFIED
AS NONESSENTIAL.  IT DIRECTED EACH OPERATOR OF A GOLD MINE TO TAKE
STEPS IMMEDIATELY TO CLOSE DOWN ITS OPERATIONS AND, AFTER SEVEN DAYS,
NOT TO ACQUIRE, USE OR CONSUME ANY MATERIAL OR EQUIPMENT IN DEVELOPMENT
WORK.  THE ORDER DIRECTED THAT, WITHIN 60 DAYS, ALL OPERATIONS SHOULD
CEASE, EXCEPTING ONLY THE MINIMUM ACTIVITY NECESSARY TO MAINTAIN MINE
BUILDINGS, MACHINERY AND EQUIPMENT, AND TO KEEP THE WORKINGS SAFE AND
ACCESSIBLE.  APPLICATIONS TO THE WPB WERE PERMITTED TO MEET SPECIAL
NEEDS AND SEVERAL EXCEPTIONS WERE MADE UNDER THAT AUTHORITY.  SMALL
MINES WERE DEFINED AND EXEMPTED FROM THE ORDER.  THE WPB DID NOT TAKE
PHYSICAL POSSESSION OF THE GOLD MINES.  IT DID NOT REQUIRE MINE OWNERS
TO DISPOSE OF ANY OF THEIR MACHINERY OR EQUIPMENT. 

ON NOVEMBER 19, 1942, ORDER L-208 WAS AMENDED TO PROHIBIT THE
DISPOSITION OF CERTAIN TYPES OF MACHINERY OR SUPPLIES WITHOUT THE
PERMISSION OF AN OFFICER OF THE WPB.  EACH MINE OPERATOR WAS REQUIRED
TO SUBMIT AN ITEMIZED LIST OF ALL SUCH EQUIPMENT HELD IN INVENTORY AND
TO INDICATE WHICH ITEMS HE WOULD BE WILLING TO SELL OR RENT.  (FN5)  ON
AUGUST 31, 1943, L-208 WAS FURTHER AMENDED TO PERMIT DISPOSITION OF
EQUIPMENT, WITHOUT APPROVAL OF THE WPB, TO PERSONS HOLDING CERTAIN
PREFERENCE RATINGS.  (FN6)  THE ORDER, THUS AMENDED, REMAINED IN EFFECT
UNTIL REVOKED ON JUNE 30, 1945.  (FN7) 

THE FIRST LEGAL ACTION AGAINST THE GOVERNMENT ARISING OUT OF L-208
WAS BROUGHT IN THE COURT OF CLAIMS IN 1950.  IT WAS THERE ALLEGED THAT
THE ORDER HAD AMOUNTED TO A TAKING OF THE COMPLAINANT'S RIGHT TO MINE
GOLD DURING THE LIFE OF THE ORDER.  THE GOVERNMENT DEMURRED, TAKING ITS
PRESENT POSITION THAT THE ORDER WAS MERELY A LAWFUL REGULATION OF SHORT
SUPPLIES RELEVANT TO THE WAR EFFORT.   THE COURT SUSTAINED THE
DEMURRER, HOLDING THAT THE DAMAGES WERE NOT COMPENSABLE.  ORO FINO
CONSOLIDATED MINES, INC., V. UNITED STATES, 118 CT. CL. 18, 92 F. SUPP.
1016.  ACCORD, ALASKA-PACIFIC CONSOLIDATED MINING CO. V. UNITED STATES,
120 CT.  CT. 307.  SOMEWHAT LATER, THE INSTANT ACTION WAS BROUGHT IN
THE COURT OF CLAIMS BY THE IDAHO MARYLAND MINES CORPORATION.  RELYING
ON THE ORO FINO DECISION, THE GOVERNMENT AGAIN DEMURRED.  THIS TIME,
HOWEVER, THE COURT OVERRULED THE DEMURRER ON THE GROUND THAT THIS
COMPLAINT CONTAINED DETAILED ALLEGATIONS WHICH, IF TRUE, IN ITS OPINION
DEMONSTRATED THAT L-208 WAS AN ARBITRARY ORDER WITHOUT RATIONAL
CONNECTION WITH THE WAR EFFORT.  ON THAT BASIS, THE COURT AUTHORIZED A
COMMISSIONER TO HEAR THIS CASE AND SEVERAL SIMILAR ONES, SOLELY TO
DETERMINE THE GOVERNMENT'S LIABILITY, LEAVING DETERMINATION OF THE
AMOUNT OF RECOVERY, IF ANY, TO FURTHER PROCEEDINGS.  122 CT. CL. 670,
104 F. SUPP. 576.  (FN8)  THE COMMISSIONER HEARD THE CASES AND FILED
HIS REPORT.  THE COURT OF CLAIMS, WITH TWO JUDGES DISSENTING, HELD THAT
THE SIX RESPONDENTS NOW BEFORE US WERE ENTITLED TO JUST COMPENSATION. 
134 CT. CL. 1, 53, 56, 138 F. SUPP. 281, 310, 312.  (FN9)  A NEW TRIAL
WAS DENIED.  134 CT. CL. 130, 146 F. SUPP. 476.  WE GRANTED THE
GOVERNMENT'S PETITION FOR CERTIORARI IN ORDER TO CONSIDER THE IMPORTANT
CONSTITUTIONAL ISSUE PRESENTED.  352 U.S. 964. 

BEFORE REACHING THE MERITS, WE FACE THE SUGGESTION OF RESPONDENTS
THAT THE SPECIAL JURISDICTIONAL ACT OF JULY 14, 1952, 66 STAT. 605, DID
MORE THAN WAIVE THE STATUTE OF LIMITATIONS AND THE DEFENSE OF LACHES. 
RESPONDENTS CONTEND THAT THIS ACT WAS A CONGRESSIONAL MANDATE TO THE
COURT OF CLAIMS TO AWARD COMPENSATION TO SUCH OF THE RESPONDENTS AS
ESTABLISHED ANY LOSS WHICH WAS, IN FACT, CAUSED BY L-208.  WE CONCLUDE
THAT THE LANGUAGE OF THE ACT AND ITS LEGISLATIVE HISTORY DEMONSTRATE
THAT IT WAS NO MORE THAN A WAIVER OF DEFENSES BASED ON THE PASSAGE OF
TIME. 

THE ENTIRE ACT READS AS FOLLOWS: 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE UNITED STATES
COURT OF CLAIMS BE, AND HEREBY IS, GIVEN JURISDICTION TO HEAR,
DETERMINE, AND RENDER JUDGMENT, NOTWITHSTANDING ANY STATUTE OF
LIMITATIONS, LACHES, OR LAPSE OF TIME, ON THE CLAIM OF ANY OWNER OR
OPERATOR OF A GOLD MINE OR GOLD PLACER OPERATION FOR LOSSES INCURRED
ALLEGEDLY BECAUSE OF THE CLOSING OR CURTAILMENT OR PREVENTION OF
OPERATIONS OF SUCH MINE OR PLACER OPERATION AS A RESULT OF THE
RESTRICTIONS IMPOSED BY WAR PRODUCTION BOARD LIMITATION ORDER L-208
DURING THE EFFECTIVE LIFE THEREOF:  PROVIDED, THAT ACTIONS ON SUCH
CLAIMS SHALL BE BROUGHT WITHIN ONE YEAR FROM THE DATE THIS ACT BECOMES
EFFECTIVE." 

THE ACT THUS CONTAINS NO LANGUAGE PREJUDGING THE VALIDITY OF THE
CLAIMS ON THEIR MERITS.  ON THE OTHER HAND, IT EXPRESSLY PERMITS THE
FILING OF ACTIONS, BASED ON L-208, WITHIN ONE YEAR FROM THE TAKING
EFFECT OF THE ACT, "NOTWITHSTANDING ANY STATUTE OF LIMITATIONS, LACHES,
OR LAPSE OF TIME  ...  ."  THAT THIS WAS THE MOTIVATING PURPOSE OF
CONGRESS IS FURTHER INDICATED BY THE FACT THAT THE STATUTE OF
LIMITATIONS HAD RECENTLY RUN AGAINST MANY OF THESE CLAIMS BY THE TIME
THE COURT OF CLAIMS, IN THE INSTANT CASE, UPHELD THE CLAIM ON THE
PLEADINGS OF THE IDAHO MARYLAND MINES CORPORATION.  122 CT. CL. 670,
104 F. SUPP. 576.  THIS WAS EXPLAINED TO CONGRESS AS FOLLOWS IN THE
HOUSE REPORT RECOMMENDING PASSAGE OF THE BILL: 

"AT THE PRESENT TIME MANY OTHER CLAIMANTS WHO MAY HAVE AS GOOD A
RIGHT FOR AN ADJUDICATION OF THEIR CLAIMS AS DOES THE IDAHO MARYLAND
MINES CORP. MAY NOT PROSECUTE SUCH CLAIMS DUE TO THE RUNNING OF THE
STATUTE OF LIMITATIONS.  MANY OF THE CLAIMANTS AFTER THE RULING IN THE
ORO FINA CASE UNDOUBTEDLY FELT THAT TO FILE IN THE COURT OF CLAIMS
WOULD BE USELESS AND, THEREFORE, ALLOWED THE STATUTE TO RUN AGAINST
THEM."  H.R. REP. NO. 2220, 82D CONG., 2D SESS. 2.  SEE ALSO, S. REP.
NO. 1605, 82D CONG., 2D SESS. 2. 

THE LEGISLATIVE HISTORY ALSO DISCLOSES REPEATED FAILURES TO INDUCE
CONGRESS TO ACT UPON THE MERITS OF THE CLAIMS.  (FN10)  IN VIEW OF SUCH
HISTORY, IT IS HARD TO BELIEVE THAT THE SUCCESSFUL PASSAGE OF THIS ACT
OF JULY 14, 1952, WOULD HAVE TAKEN PLACE, AS IT DID, WITHOUT OPPOSITION
(FN11) HAD IT INCLUDED A CONCESSION OF LIABILITY.  ON THE OTHER HAND,
AS EXPLAINED IN THE ABOVE-QUOTED HOUSE COMMITTEE REPORT, ITS PASSAGE IS
READILY UNDERSTOOD IF IT MERELY GRANTED AN EXTENSION, FOR ONE YEAR, OF
THE TIME WITHIN WHICH TO FILE AN ACTION TO RECOVER A CLAIM, THE MERITS
OF WHICH WOULD BE DETERMINED BY THE COURT OF CLAIMS.  FOR THESE
REASONS, WE HOLD THAT THIS JURISDICTIONAL ACT IS FAIRLY INTERPRETED AS
AMOUNTING ONLY TO A WAIVER OF DEFENSES BASED ON THE PASSAGE OF TIME. 

TURNING TO THE MERITS, IT IS CLEAR FROM THE RECORD THAT THE
GOVERNMENT DID NOT OCCUPY, USE, OR IN ANY MANNER TAKE PHYSICAL
POSSESSION OF THE GOLD MINES OR OF THE EQUIPMENT CONNECTED WITH THEM. 
CF. UNITED STATES V. PEWEE COAL CO., 341 U.S. 114.  ALL THAT THE
GOVERNMENT SOUGHT WAS THE CESSATION OF THE CONSUMPTION OF MINING
EQUIPMENT AND MANPOWER IN THE GOLD MINES AND THE CONSERVATION OF SUCH
EQUIPMENT AND MANPOWER FOR MORE ESSENTIAL WAR USES.  THE GOVERNMENT HAD
NO NEED FOR THE GOLD OR THE GOLD MINES.  THE MERE FACT THAT L-208 WAS
IN THE FORM OF AN EXPRESS PROHIBITION OF THE OPERATION OF THE MINES,
RATHER THAN A PROHIBITION OF THE USE OF THE SCARCE EQUIPMENT IN THE
MINES, DID NOT CONVERT THE ORDER INTO A "TAKING" OF A RIGHT TO OPERATE
THE MINES.  OBVIOUSLY, IF THE USE OF EQUIPMENT WERE PROHIBITED, THE
MINES WOULD CLOSE AND IT DID NOT MAKE THAT ORDER A "TAKING" MERELY
BECAUSE THE ORDER WAS, IN FORM, A DIRECTION TO CLOSE DOWN THE MINES. 
THE RECORD SHOWS THAT THE WPB EXPECTED THAT L-208 WOULD RELEASE
SUBSTANTIAL AMOUNTS OF SCARCE MINING EQUIPMENT FOR USE IN ESSENTIAL
INDUSTRIES, AND ALSO THAT EXPERIENCED GOLD MINERS WOULD TRANSFER TO
OTHER MINES WHOSE PRODUCT WAS IN GRAVELY SHORT SUPPLY.  THE PURPOSE OF
L-208 WAS TO ENCOURAGE VOLUNTARY REALLOCATION OF SCARCE RESOURCES FROM
THE UNESSENTIAL TO THE ESSENTIAL. 

RESPONDENTS CONTEND THAT L-208 WAS ARBITRARY AND WITHOUT RATIONAL
CONNECTION WITH THE WAR EFFORT.  (FN12)  THEY CONTEND THAT, IF IT WERE
ARBITRARY, THERE IS NO DISTINCTION IN LAW BETWEEN THIS CASE AND ONE
WHERE THE GOVERNMENT CONSCIOUSLY EXERCISES ITS POWER TO TAKE FOR PUBLIC
USE.  RESPONDENTS BASE THEIR ASSERTION OF ARBITRARINESS ON SEVERAL
CIRCUMSTANCES.  FOR EXAMPLE, THEY URGE THAT THE PREAMBLE TO L-208
RECITED AS ITS SOLE PURPOSE THE CONSERVATION OF SCARCE MATERIALS.  IF
THAT ALONE WERE THE PURPOSE, THEY CONTEND, IT HAD ALREADY BEEN ACHIEVED
BY PRIORITY ORDERS WHICH PREVENTED THE GOLD MINES FROM OBTAINING ANY
SCARCE EQUIPMENT.  ORDER L-208 DID MORE THAN MERELY PROHIBIT THE
ACQUISITION OF SCARCE EQUIPMENT - IT ALSO PROHIBITED THE USE OF
EQUIPMENT PREVIOUSLY ACQUIRED.  THE FACT THAT L-208 DID NOT REQUIRE THE
MINE OWNERS TO SELL THEIR INVENTORY OF SCARCE EQUIPMENT TO ESSENTIAL
USERS WAS A REASONABLE COURSE OF ACTION.  THE WPB COULD PROPERLY RELY
ON THE PROFIT MOTIVE TO INDUCE THE MINE OWNERS TO LIQUIDATE THEIR
INVENTORIES, AND IT WAS THOUGHT THAT THE PEOPLE WHO WOULD BE INTERESTED
IN PURCHASING USED MINING EQUIPMENT PROBABLY WOULD BE THE OWNERS OF
ESSENTIAL MINES.  IN ANY EVENT, L-208 WAS SOON AMENDED TO PROHIBIT
SALES TO NONESSENTIAL USERS.  (FN13) 

RESPONDENTS ALSO URGE THAT THE RECORD SHOWS THAT THE SHORTAGE OF
EXPERIENCED MINERS WAS THE DOMINANT, IF NOT THE SOLE, CONSIDERATION FOR
THE ISSUANCE OF L-208.  THEY CONTEND THAT THE WPB HAD NO AUTHORITY TO
COMPEL GOLD MINERS TO TRANSFER TO OTHER MINES.  THE RECORD SHOWS THAT A
DOMINATING CONSIDERATION IN THE ISSUANCE OF L-208 WAS THE EXPECTATION
THAT IT WOULD RELEASE EXPERIENCED MINERS FOR WORK IN THE NONFERROUS
MINES, BUT THE RECORD DOES NOT SUPPORT A FINDING THAT SUCH WAS THE SOLE
PURPOSE OF THE ORDER.  IT WAS LAWFUL FOR THE WPB TO CONSIDER THE IMPACT
OF ITS MATERIAL ORDERS ON THE MANPOWER SITUATION.  ORDER L-208 DID NOT
DRAFT GOLD MINERS INTO GOVERNMENT SERVICE AS COPPER MINERS.  IT SOUGHT
ONLY TO MAKE THE GOLD MINERS AVAILABLE FOR MORE ESSENTIAL WORK IF THEY
CHOSE TO MOVE.  ALTHOUGH THE RECORD INDICATES THAT THE NUMBER OF GOLD
MINERS WHO TRANSFERRED TO NONFERROUS MINES WAS DISAPPOINTINGLY SMALL,
YET THERE WERE SOME WHO DID, AND OTHERS MOVED TO OTHER ESSENTIAL
WARTIME SERVICES.  THE RECORD SHOWS A CAREFUL OFFICIAL CONSIDERATION OF
THE SUBJECT AND A WELL-CONSIDERED DECISION TO ACCOMPLISH A PROPER
RESULT.  THERE IS NO SUGGESTION THAT ANY OF THE OFFICIALS WHO WERE
RESPONSIBLE FOR THE ORDER WERE MOTIVATED BY ANYTHING OTHER THAN
APPROPRIATE CONCERN FOR THE WAR EFFORT.    THUS THE WPB MADE A REASONED
DECISION THAT, UNDER EXISTING CIRCUMSTANCES, THE NATION'S NEED WAS SUCH
THAT THE UNRESTRICTED USE OF MINING EQUIPMENT AND MANPOWER IN GOLD
MINES WAS SO WASTEFUL OF WARTIME RESOURCES THAT IT MUST BE TEMPORARILY
SUSPENDED.  TRADITIONALLY, WE HAVE TREATED THE ISSUE AS TO WHETHER A
PARTICULAR GOVERNMENTAL RESTRICTION AMOUNTED TO A CONSTITUTIONAL TAKING
AS BEING A QUESTION PROPERLY TURNING UPON THE PARTICULAR CIRCUMSTANCES
OF EACH CASE.  SEE PENNSYLVANIA COAL CO. V. MAHON, 260 U.S. 393, 416. 
IN DOING SO, WE HAVE RECOGNIZED THAT ACTION IN THE FORM OF REGULATION
CAN SO DIMINISH THE VALUE OF PROPERTY AS TO CONSTITUTE A TAKING.  E.G.,
UNITED STATES V. KANSAS CITY INS. CO., 339 U.S. 799; UNITED STATES V.
CAUSBY, 328 U.S. 256.  HOWEVER, THE MERE FACT THAT THE REGULATION
DEPRIVES THE PROPERTY OWNER OF THE MOST PROFITABLE USE OF HIS PROPERTY
IS NOT NECESSARILY ENOUGH TO ESTABLISH THE OWNER'S RIGHT TO
COMPENSATION.  SEE MUGLER V. KANSAS, 123 U.S. 623, 664, 668, 669.  IN
THE CONTEXT OF WAR, WE HAVE BEEN RELUCTANT TO FIND THAT DEGREE OF
REGULATION WHICH, WITHOUT SAYING SO, REQUIRES COMPENSATION TO BE PAID
FOR RESULTING LOSSES OF INCOME.  E.G., HAMILTON V. KENTUCKY
DISTILLERIES CO., 251 U.S. 146; JACOB RUPPERT V. CAFFEY, 251 U.S. 264;
BOWLES V. WILLINGHAM, 321 U.S. 503; AND SEE UNITED STATES V. CALTEX,
INC., 344 U.S. 149.  THE REASONS ARE PLAIN.  WAR, PARTICULARLY IN
MODERN TIMES, DEMANDS THE STRICT REGULATION OF NEARLY ALL RESOURCES. 
IT MAKES DEMANDS WHICH OTHERWISE WOULD BE INSUFFERABLE.  BUT WARTIME
ECONOMIC RESTRICTIONS, TEMPORARY IN CHARACTER, ARE INSIGNIFICANT WHEN
COMPARED TO THE WIDESPREAD UNCOMPENSATED LOSS OF LIFE AND FREEDOM OF
ACTION WHICH WAR TRADITIONALLY DEMANDS. 

WE DO NOT FIND IN THE TEMPORARY RESTRICTIONS HERE PLACED ON THE
OPERATION OF GOLD MINES A TAKING OF PRIVATE PROPERTY THAT WOULD JUSTIFY
A DEPARTURE FROM THE TREND OF THE ABOVE DECISIONS.  THE WPB HERE
SOUGHT, BY REASONABLE REGULATION, TO CONSERVE THE LIMITED SUPPLY OF
EQUIPMENT USED BY THE MINES AND IT HOPED THAT ITS ORDER WOULD DIVERT
AVAILABLE MINERS TO MORE ESSENTIAL WORK.  BOTH PURPOSES WERE PROPER
OBJECTIVES; BOTH MATTERS WERE SUBJECT TO REGULATION TO THE EXTENT OF
THE ORDER.  L-208 DID NOT ORDER ANY DISPOSAL OF PROPERTY OR TRANSFER OF
MEN.  ACCORDINGLY, SINCE THE DAMAGE TO THE MINE OWNERS WAS INCIDENTAL
TO THE GOVERNMENT'S LAWFUL REGULATION OF MATTERS REASONABLY DEEMED
ESSENTIAL TO THE WAR EFFORT, THE JUDGMENT IS REVERSED. 

FN1  ISSUED OCTOBER 8, 1942, 7 FED. REG. 7992-7993.  AMENDED,
NOVEMBER 19, 1942, 7 FED.  REG. 9613-9614; NOVEMBER 25, 1942, 7 FED.
REG. 9810-9811; AND AUGUST 31, 1943, 8 FED. REG.  12007-12008. 
REVOKED, JUNE 30, 1945, 10 FED. REG. 8110.  FOR TEXT OF THE ORDER AS
ISSUED OCTOBER 8, 1942, SEE NOTE 4, INFRA. 

FN2  THE ACT IS SET FORTH IN THE TEXT OF THIS OPINION AT P. 163,
INFRA. 

FN3  "NO PERSON SHALL BE  ...  DEPRIVED OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR SHALL PRIVATE PROPERTY BE
TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION."  U.S. CONST., AMEND.
V. 

FN4  WAR PRODUCTION BOARD LIMITATION ORDER L-208, 7 FED. REG. 7992
7993, PROVIDED AS FOLLOWS: 

"THE FULFILLMENT OF REQUIREMENTS FOR THE DEFENSE OF THE UNITED STATES
HAS CREATED A SHORTAGE IN THE SUPPLY OF CRITICAL MATERIALS FOR DEFENSE,
FOR PRIVATE ACCOUNT AND FOR EXPORT WHICH ARE USED IN THE MAINTENANCE
AND OPERATION OF GOLD MINES; AND THE FOLLOWING ORDER IS DEEMED
NECESSARY AND APPROPRIATE IN THE PUBLIC INTEREST AND TO PROMOTE THE
NATIONAL DEFENSE. 

"SEC. 3093.1  LIMITATION ORDER L-208 - (A) DEFINITIONS.  FOR THE
PURPOSES OF THIS ORDER, 'NONESSENTIAL MINE' MEANS ANY MINING ENTERPRISE
IN WHICH GOLD IS PRODUCED, WHETHER LODE OR PLACER, LOCATED IN THE
UNITED STATES, ITS TERRITORIES OR POSSESSIONS, UNLESS THE OPERATOR OF
SUCH MINING ENTERPRISE IS THE HOLDER OF A SERIAL NUMBER FOR SUCH
ENTERPRISE WHICH HAS BEEN ISSUED UNDER PREFERENCE RATING ORDER P-56. 

"(B)  RESTRICTIONS UPON PRODUCTION.  (1)  ON AND AFTER THE ISSUANCE
DATE OF THIS ORDER, EACH OPERATOR OF A NONESSENTIAL MINE SHALL
IMMEDIATELY TAKE ALL SUCH STEPS AS MAY BE NECESSARY TO CLOSE DOWN, AND
SHALL CLOSE DOWN, IN THE SHORTEST POSSIBLE TIME, THE OPERATIONS OF SUCH
MINE. 

"(2)  IN NO EVENT ON OR AFTER 7 DAYS FROM THE ISSUANCE DATE OF THIS
ORDER SHALL ANY OPERATOR OF A NONESSENTIAL MINE ACQUIRE, CONSUME, OR
USE ANY MATERIAL, FACILITY, OR EQUIPMENT TO BREAK ANY NEW ORE OR TO
PROCEED WITH ANY DEVELOPMENT WORK OR ANY NEW OPERATIONS IN OR ABOUT
SUCH MINE. 

"(3)  IN NO EVENT ON OR BEFORE 60 DAYS FROM THE ISSUANCE DATE OF THIS
ORDER SHALL ANY OPERATOR OF A NONESSENTIAL MINE ACQUIRE, CONSUME, OR
USE ANY MATERIAL, FACILITY, OR EQUIPMENT TO REMOVE ANY ORE OR WASTE
FROM SUCH MINE, EITHER ABOVE OR BELOW GROUND, OR TO CONDUCT ANY OTHER
OPERATIONS IN OR ABOUT SUCH MINE, EXCEPT TO THE MINIMUM AMOUNT
NECESSARY TO MAINTAIN ITS BUILDINGS, MACHINERY, AND EQUIPMENT IN
REPAIR, AND ITS ACCESS AND DEVELOPMENT WORKINGS SAFE AND ACCESSIBLE. 

"(4)  THE PROVISIONS OF THIS ORDER SHALL NOT APPLY TO ANY LODE MINE
WHICH PRODUCED 1200 TONS OR LESS OF COMMERCIAL ORE IN THE YEAR 1941,
PROVIDED THE RATE OF PRODUCTION OF SUCH MINE, AFTER THE ISSUANCE DATE
OF THIS ORDER, SHALL NOT EXCEED 100 TONS PER MONTH, NOR TO ANY PLACER
MINE WHICH TREATED LESS THAN 1000 CUBIC YARDS OF MATERIAL IN THE YEAR
1941, PROVIDED THAT THE RATE OF TREATMENT OF SUCH PLACER MINE, AFTER
THE ISSUANCE DATE OF THIS ORDER, SHALL NOT EXCEED 100 CUBIC YARDS PER
MONTH. 

"(5)  NOTHING CONTAINED IN THIS ORDER SHALL LIMIT OR PROHIBIT THE USE
OR OPERATION OF THE MILL, MACHINE SHOP, OR OTHER FACILITIES OF A
NONESSENTIAL MINE IN THE MANUFACTURE OF ARTICLES TO BE DELIVERED
PURSUANT TO ORDERS BEARING A PREFERENCE RATING OF A-1-K OR HIGHER, OR
IN MILLING ORES FOR THE HOLDER OF A SERIAL NUMBER UNDER PREFERENCE
RATING ORDER P-56. 

"(C)  RESTRICTIONS ON APPLICATION OF PREFERENCE RATINGS.  NO PERSON
SHALL APPLY ANY PREFERENCE RATING, WHETHER HERETOFORE OR HEREAFTER
ASSIGNED, TO ACQUIRE ANY MATERIAL OR EQUIPMENT FOR CONSUMPTION OR USE
IN THE OPERATION, MAINTENANCE, OR REPAIR OF A NONESSENTIAL MINE, EXCEPT
WITH THE EXPRESS PERMISSION OF THE DIRECTOR GENERAL FOR OPERATIONS
ISSUED AFTER APPLICATION MADE TO THE MINING BRANCH, WAR PRODUCTION
BOARD. 

"(D)  ASSIGNMENT OF PREFERENCE RATINGS.  THE DIRECTOR GENERAL FOR
OPERATIONS, UPON RECEIVING AN APPLICATION IN ACCORDANCE WITH PARAGRAPH
(C) ABOVE, MAY ASSIGN SUCH PREFERENCE RATINGS AS MAY BE REQUIRED TO
OBTAIN THE MINIMUM AMOUNT OF MATERIAL NECESSARY TO MAINTAIN SUCH
NONESSENTIAL MINE ON THE BASIS SET FORTH IN PARAGRAPH (B)(3) ABOVE. 

"(E)  RECORDS.  ALL PERSONS AFFECTED BY THIS ORDER SHALL KEEP AND
PRESERVE, FOR NOT LESS THAN TWO YEARS, ACCURATE AND COMPLETE RECORDS
CONCERNING INVENTORY, ACQUISITION, CONSUMPTION, AND USE OF MATERIALS,
AND PRODUCTION OF ORE. 

"(F)  REPORTS.  ALL PERSONS AFFECTED BY THIS ORDER SHALL EXECUTE AND
FILE WITH THE WAR PRODUCTION BOARD SUCH REPORTS AND QUESTIONNAIRES AS
SAID BOARD SHALL FROM TIME TO TIME PRESCRIBE. 

"(G)  AUDIT AND INSPECTION.  ALL RECORDS REQUIRED TO BE KEPT BY THIS
ORDER SHALL, UPON REQUEST, BE SUBMITTED TO AUDIT AND INSPECTION BY DULY
AUTHORIZED REPRESENTATIVES OF THE WAR PRODUCTION BOARD. 

"(H)  COMMUNICATIONS.  ALL REPORTS TO BE FILED, APPEALS, AND OTHER
COMMUNICATIONS CONCERNING THIS ORDER SHOULD BE ADDRESSED TO:  WAR
PRODUCTION BOARD, MINING BRANCH, WASHINGTON, D.C., REF.:  L-208. 

"(I)  VIOLATIONS.  ANY PERSON WHO WILFULLY VIOLATES ANY PROVISION OF
THIS ORDER, OR WHO, IN CONNECTION WITH THIS ORDER, WILFULLY CONCEALS A
MATERIAL FACT OR FURNISHES FALSE INFORMATION TO ANY DEPARTMENT OR
AGENCY OF THE UNITED STATES, IS GUILTY OF A CRIME, AND UPON CONVICTION
MAY BE PUNISHED BY FINE OR IMPRISONMENT.  IN ADDITION, ANY SUCH PERSON
MAY BE PROHIBITED FROM MAKING OR OBTAINING FURTHER DELIVERIES OF, OR
FROM PROCESSING OR USING, MATERIAL UNDER PRIORITY CONTROL AND MAY BE
DEPRIVED OF PRIORITIES ASSISTANCE. 

"(J)  APPEAL.  ANY PERSON AFFECTED BY THIS ORDER WHO CONSIDERS THAT
COMPLIANCE THEREWITH WOULD WORK AN EXCEPTIONAL AND UNREASONABLE
HARDSHIP UPON HIM MAY APPEAL TO THE WAR PRODUCTION BOARD, BY LETTER, IN
TRIPLICATE, SETTING FORTH THE PERTINENT FACTS AND THE REASON HE
CONSIDERS HE IS ENTITLED TO RELIEF.  THE DIRECTOR GENERAL FOR
OPERATIONS MAY THEREUPON TAKE SUCH ACTION AS HE DEEMS APPROPRIATE. 

"(K)  APPLICABILITY OF PRIORITIES REGULATIONS.  THIS ORDER AND ALL
TRANSACTIONS AFFECTED THEREBY ARE SUBJECT TO ALL APPLICABLE PROVISIONS
OF THE PRIORITIES REGULATIONS OF THE WAR PRODUCTION BOARD, AS AMENDED
FROM TIME TO TIME. 

"(P.D. REG. 1, AS AMENDED, 6 F.R. 6680; W.P.B. REG. 1, 7 F.R. 561;
E.O. 9024, 7 F.R. 329; E.O. 9040, 7 F.R. 527; E.O. 9125, 7 F.R. 2719;
SEC. 2(A), PUB. LAW 671, 76TH CONG., AS AMENDED BY PUB. LAWS 89 AND
507, 77TH CONG.) 

"ISSUED THIS 8TH DAY OF OCTOBER 1942. 

                   "ERNEST KANZLER,

               "DIRECTOR GENERAL FOR OPERATIONS." 

FN5  SECTION 6(E), ADDED TO THE ORIGINAL ORDER ON NOVEMBER 19, 1942,
7 FED. REG. 9613, PROVIDED: 

"(E)  RESTRICTIONS ON DISPOSITION OF MACHINERY AND EQUIPMENT.  NO
PERSON SHALL SELL OR OTHERWISE DISPOSE OF ANY MACHINERY OR EQUIPMENT OF
THE TYPES LISTED IN SCHEDULE A TO PREFERENCE RATING ORDER P-56, WHICH
HAS BEEN USED IN A NONESSENTIAL MINE, AND NO PERSON SHALL ACCEPT
DELIVERY THEREOF, EXCEPT WITH SPECIFIC PERMISSION OF THE DIRECTOR
GENERAL FOR OPERATIONS.  ON OR BEFORE NOVEMBER 19, 1942, OR WITHIN
SIXTY DAYS AFTER THE EFFECTIVE DATE, WHICHEVER IS LATER, EACH OPERATOR
OF A NONESSENTIAL MINE SHALL FILE WITH THE WAR PRODUCTION BOARD,
WASHINGTON, D.C., REFERENCE:  L-208, AN ITEMIZED LIST OF SUCH MACHINERY
AND EQUIPMENT, SIGNED BY SUCH OPERATOR OR AN AUTHORIZED OFFICIAL,
INDICATING EACH ITEM AVAILABLE FOR SALE OR RENTAL.  UPON RECEIPT OF
SUCH ITEMIZED LIST, THE WAR PRODUCTION BOARD WILL FURNISH TO THE
OPERATOR APPROPRIATE FORMS TO BE FILLED OUT FOR EACH ITEM WHICH THE
OPERATOR DESIRES TO DISPOSE OF." 

FN6  8 FED. REG. 12007-12008. 

FN7  10 FED. REG. 8110. 

FN8  SEE ALSO, HOMESTAKE MINING CO. V. UNITED STATES, 122 CT. CL.
690, AND CENTRAL EUREKA MINING CO. V. UNITED STATES, 122 CT. CL. 691. 

FN9  THE COURT OF CLAIMS CONCLUDED THAT RESPONDENTS HAD SHOWN NOT
ONLY THAT L-208 WAS ARBITRARY, BUT ALSO THAT THEY HAD A SUFFICIENT
INVENTORY OF MACHINERY AND SUPPLIES SO THAT THEY WOULD HAVE BEEN ABLE
TO OPERATE HAD IT NOT BEEN FOR THE ORDER.  HOWEVER, AS TO THE FOLLOWING
COMPANIES, IT ORDERED THEIR PETITIONS DISMISSED ON THE GROUND THAT THEY
HAD NOT SHOWN THAT THEY WOULD HAVE BEEN ABLE TO CONTINUE OPERATIONS,
THUS FAILING TO SHOW THAT L-208 WAS THE PROXIMATE CAUSE FOR THEIR LOSS:
ALABAMA-CALIFORNIA GOLD MINES CO., CONSOLIDATED CHOLLAR GOULD & SAVAGE
MINING CO., AND ORO FINO CONSOLIDATED MINES, INC. 134 CT. CL., AT 53,
138 F. SUPP., AT 310. 

FN10  BILLS WERE FIRST INTRODUCED IN THE 78TH CONGRESS, 1ST SESSION
(1943), FOR THE RELIEF OF THE OWNERS AND OPERATORS OF GOLD MINES. 
EARLY EFFORTS WERE DIRECTED AT RECISION OF L-208.  H.R. 3009, 89 CONG.
REC. 6181, WAS REFERRED TO THE HOUSE COMMITTEE ON BANKING AND CURRENCY
AND NEVER REPORTED OUT; H.R. 3682, 89 CONG. REC. 9653, WAS REFERRED TO
THE HOUSE COMMITTEE ON THE JUDICIARY AND NEVER REPORTED OUT. 

AT THE SAME SESSION OF CONGRESS, SENATOR MCCARRAN INTRODUCED A BILL,
S. 27, 89 CONG. REC. 34, WHICH PROVIDED LEGISLATIVE RELIEF TO THE MINE
OWNERS VIS-A-VIS THEIR CREDITORS.  THIS BILL, REFERRED TO THE SENATE
COMMITTEE ON THE JUDICIARY, WAS FAVORABLY REPORTED, 89 CONG. REC. 5187,
S. REP. NO. 271, 78TH CONG., 1ST SESS., AND, AFTER AMENDMENT, IT PASSED
THE SENATE, 89 CONG.  REC. 6094-6095.  IN THE HOUSE, S. 27 WAS REFERRED
TO THE HOUSE COMMITTEE ON MINES AND MINING, 89 CONG. REC. 6180, AND WAS
NEVER REPORTED OUT.  IN THE FOLLOWING SESSION OF CONGRESS, A SIMILAR
BILL WAS INTRODUCED IN THE HOUSE BY REPRESENTATIVE ENGLE.  H.R. 5093,
90 CONG. REC. 6587.  IT TOO WAS REFERRED TO THE HOUSE COMMITTEE ON
BANKING AND CURRENCY AND WAS NEVER REPORTED OUT. 

IN THE 79TH CONGRESS, 1ST SESSION (1945), REPRESENTATIVE ENGLE
INTRODUCED THE FIRST BILL CALLING FOR COMPENSATION FOR LOSSES ARISING
OUT OF L-208.  H.R. 4393, 91 CONG. REC. 9726.  THIS BILL WAS REFERRED
TO THE HOUSE COMMITTEE ON WAR CLAIMS WHICH, IN TURN, REFERRED THE
MATTER TO A SUBCOMMITTEE.   THE SUBCOMMITTEE HELD HEARINGS OVER SEVERAL
DAYS AND ISSUED A REPORT TO THE FULL COMMITTEE RECOMMENDING APPROVAL. 
(THIS REPORT WAS QUOTED AT LENGTH IN THE REPORTS TO BOTH HOUSES
FAVORING PASSAGE OF THE JURISDICTIONAL ACT.)  THE BILL WAS NEVER
REPORTED OUT OF THE FULL COMMITTEE. 

IN THE 81ST CONGRESS, 1ST SESSION (1949), SENATOR MCCARRAN INTRODUCED
S. 45, 95 CONG. REC. 39, SUBSTANTIVELY SIMILAR TO H.R. 4393 INTRODUCED
BY REPRESENTATIVE ENGLE.  THE BILL WAS REFERRED TO THE SENATE COMMITTEE
ON THE JUDICIARY WHICH REPORTED IT FAVORABLY.  S. REP. NO. 79, 81ST
CONG., 1ST SESS.  IT WAS OBJECTED TO, HOWEVER, BY SENATOR DONNELL, 95
CONG. REC. 2764; SENATOR HENDRICKSON, BY REQUEST, ID., AT 13297;
SENATOR SCHOEPPEL, ID., AT 14722; SENATOR WILLIAMS, 96 CONG. REC. 1278;
SENATOR HENDRICKSON, ID., AT 14691; AND SENATORS HENDRICKSON AND
WILLIAMS, ID., AT 16592, AND CONSEQUENTLY NEVER CAME TO A VOTE.  IN THE
SAME CONGRESS, REPRESENTATIVE WHITE INTRODUCED H.R. 7851, 96 CONG. REC.
4066, A BILL OF THE SAME TYPE, WHICH WAS REFERRED TO THE HOUSE
COMMITTEE ON THE JUDICIARY AND NEVER REPORTED OUT. 

FN11  THE SPECIAL JURISDICTIONAL ACT WAS PASSED ON THE CONSENT
CALENDAR.  98 CONG. REC. 6322-6323, 8931.  THE SERIOUSNESS OF A
CONCESSION OF LIABILITY IS EVIDENCED BY THE GOVERNMENT'S RECENT
ESTIMATE THAT ITS POTENTIAL LIABILITY, IF RESPONDENTS PREVAIL, CAN BE
MEASURED IN "TERMS OF THIRTY TO SIXTY MILLION DOLLARS."    FN12
ORDINARILY THE REMEDY FOR ARBITRARY GOVERNMENTAL ACTION IS AN
INJUNCTION, RATHER THAN AN ACTION FOR JUST COMPENSATION.  YOUNGSTOWN
SHEET & TUBE CO. V. SAWYER, 343 U.S. 579.  OUR VIEW OF THE CASE MAKES
IT UNNECESSARY TO REACH THAT QUESTION. 

FN13  SEE PP. 160-161, SUPRA. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

FOR LOSSES ALLEGED TO HAVE RESULTED FROM A WARTIME ORDER OF THE WAR
PRODUCTION BOARD, VARIOUS OF THE RESPONDENTS SOUGHT MONETARY RELIEF IN
THE COURT OF CLAIMS.  THESE SUITS HAD A CHECKERED CAREER IN THAT COURT,
AND, AS A CONSEQUENCE, CONGRESS PASSED REMEDIAL LEGISLATION THAT HAS
SERVED AS A GROUND FOR RESPONDENTS' CONTINUED ASSERTION OF THEIR RIGHT
TO RECOVER.  A CONSIDERATION OF THE HISTORY OF THIS CONTROVERSY IS
NECESSARY FOR DUE APPRECIATION OF THIS LEGISLATION, AND AN
UNDERSTANDING OF THE LEGISLATION, ITS BACKGROUND AND ITS MEANING, IS
ESSENTIAL TO A PROPER DISPOSITION OF THE SUIT BEFORE US. 

FROM A TIME SHORTLY BEFORE OUR ENTRY INTO THE SECOND WORLD WAR, GOLD
MINES IN THIS COUNTRY WERE SUBJECTED BY THE UNITED STATES GOVERNMENT TO
INCREASINGLY STRINGENT LIMITATIONS ON THEIR OPERATIONS.   BECAUSE THEY
WERE REGARDED AS A NON-ESSENTIAL INDUSTRY, THEY WERE FIRST RESTRICTED
IN, AND THEN VIRTUALLY EXCLUDED FROM, THE ACQUISITION OF REQUIRED
MACHINERY, SPARE PARTS AND SUPPLIES THAT WERE NEEDED IN MINES PRODUCING
CRITICAL MATERIALS.  FINALLY, ON OCTOBER 8, 1942, APPARENTLY MORE IN AN
ATTEMPT TO DIVERT GOLD MINERS INTO COPPER MINES THAN (AS ITS PREAMBLE
RECITED) TO CONSERVE CRITICAL MATERIALS, THE WAR PRODUCTION BOARD
ISSUED LIMITATION ORDER L-208, 7 FED. REG. 7992-7993, AS AMENDED, 7
ID., AT 9613-9614, 8 ID., AT 12007-12008, WHICH ORDERED OPERATORS OF
GOLD MINES THAT DID NOT ALSO PRODUCE SUBSTANTIAL QUANTITIES OF
STRATEGIC MATERIALS TO CEASE MINING OPERATIONS WITHIN SIXTY DAYS.  THIS
ORDER WAS REVOKED ON JUNE 30, 1945.  10 ID., AT 8110. 

EARLY IN 1950, ONE OF THE MINE OPERATORS ALLEGEDLY AFFECTED BY THE
SHUTDOWN ORDER BROUGHT SUIT AGAINST THE UNITED STATES IN THE COURT OF
CLAIMS, ASSERTING THAT ORDER L-208 WAS ISSUED "ARBITRARILY AND WITHOUT
AUTHORITY OF LAW" AND WAS THEREFORE A TAKING OF PROPERTY WITHIN THE
MEANING OF THE FIFTH AMENDMENT FOR WHICH THE CLAIMANT SOUGHT JUST
COMPENSATION.  THE COURT, WHILE HOLDING THAT THE SIX-YEAR STATUTE OF
LIMITATIONS (28 U.S.C. SEC. 2501) DID NOT BEGIN TO RUN AGAINST THE
CLAIMANT UNTIL THE ORDER WAS RESCINDED, DISMISSED THE PETITION FOR
FAILURE TO STATE A CLAIM UNDER THE FIFTH AMENDMENT.  ORO FINO CONSOL. 
MINES, INC., V. UNITED STATES, 118 CT. CL. 18, 92 F. SUPP. 1016
(1950).   APPROXIMATELY A MONTH BEFORE THE END OF THE STATUTORY PERIOD,
THREE OTHER MINE OPERATORS FILED SUITS IN THE COURT OF CLAIMS, ALSO
CONTENDING THAT, BY VIRTUE OF THE WPB ORDER, THEIR PROPERTY HAD BEEN
TAKEN WITHOUT JUST COMPENSATION IN VIOLATION OF THE FIFTH AMENDMENT. 
IN THEIR COMPLAINTS (AS AMENDED AFTER THE STATUTE HAD RUN) THEY LAID A
CONSIDERABLY MORE EXTENSIVE FACTUAL BASIS FOR THEIR CONTENTIONS OF
ARBITRARY AND UNAUTHORIZED ACTION.  THE COURT OF CLAIMS, IN IDAHO
MARYLAND MINES CORP. V. UNITED STATES, 122 CT. CL. 670, 104 F. SUPP.
576 (1952), (FN1) DENIED THE GOVERNMENT'S MOTION TO DISMISS THE SUITS. 
IT DISTINGUISHED ORO FINO ON THE GROUND THAT THE FACTS THERE ALLEGED IN
SUPPORT OF THE CONTENTIONS OF UNCONSTITUTIONALITY, BY CONTRAST WITH
THOSE IN IDAHO MARYLAND, HAD NOT BEEN SUFFICIENT TO REBUT THE
PRESUMPTION OF CONSTITUTIONALITY ATTACHING TO GOVERNMENTAL ACTION.  A
MOTION BY THE GOVERNMENT FOR REHEARING WAS OVERRULED TWO MONTHS LATER. 
IBID. 

WITHIN TWO WEEKS AFTER THE IDAHO MARYLAND DECISION SENATOR MCCARRAN
OF NEVADA INTRODUCED A BILL (S. 3195, 82D CONG., 2D SESS.) TO GRANT THE
COURT OF CLAIMS JURISDICTION, NOTWITHSTANDING THE STATUTE OF
LIMITATIONS, TO HEAR CLAIMS OF GOLD MINE OPERATORS FOR LOSSES RESULTING
FROM THE ISSUANCE OF ORDER L-208.  98 CONG. REC. 5394.  AFTER
CONSIDERATION OF THE BILL, THE COMMITTEE ON THE JUDICIARY ON MAY 28,
1952, RECOMMENDED "FAVORABLE CONSIDERATION OF THE MEASURE BY THE
SENATE" IN A REPORT, S. REP. NO. 1605, 82D CONG., 2D SESS.  THE REPORT,
"IN ORDER THAT THE BACKGROUND OF THIS SITUATION CAN BE FULLY UNDERSTOOD
AND APPRECIATED," ID., AT P. 2, SET FORTH LARGE PORTIONS OF AN EARLIER
REPORT (ON H.R. 4393 OF THE 79TH CONGRESS) SETTING FORTH IN GREAT
DETAIL A FACTUAL BASIS FOR THE FOLLOWING CONTENTIONS: 

"1.  WPB ORDER L-208 WAS UNIQUE IN THAT IT WAS THE ONLY GOVERNMENT
ORDER CLOSING A PRODUCTIVE INDUSTRY. 

"2.  ISSUANCE OF THE ORDER WAS AN ADMINISTRATIVE ERROR, BASED UPON A
STATISTICAL MISCONCEPTION, AND MAY, FURTHERMORE, HAVE BEEN ILLEGAL. 

"3.  THE NET RESULTS OF THE ORDER IN ACCOMPLISHING ITS AVOWED PRIMARY
PURPOSE OF CHANNELING MANPOWER TO 'ESSENTIAL' MINES WERE NEGLIGIBLE. 

"4.  THE ECONOMIC LOSS TO THE GOLD-MINING INDUSTRY HAS BEEN GREAT AND
IN SOME CASES THE DAMAGE MAY BE IRREPARABLE."  ID., AT P. 3. 

IN THE CONCLUSION OF THE REPORT, IT WAS STATED (ID., AT P. 7) THAT: 

"THE COMMITTEE HAS CAREFULLY STUDIED THE FACTS RELATING TO THE
SITUATION THAT AROSE AS A RESULT OF THE PROCLAMATION OF THE WAR
PRODUCTION BOARD LIMITATION ORDER L-208 AND IS CONVINCED THAT THE GOLD
MINING INDUSTRY WAS DEALT WITH IN A FASHION WHICH MERITS THE
CONSIDERATION OF THE COURT IN THE ADJUDICATION OF THE LOSSES WHICH MAY
HAVE BEEN OCCASIONED BY THIS ORDER.  THE IDAHO MARYLAND MINES CORP.
DECISION IS AMPLE EVIDENCE OF THE FACT THAT THE LEAST THAT CAN BE DONE
IS TO ALLOW THOSE PERSONS AFFECTED BY ORDER L-208 THEIR DAY IN COURT
FOR SUCH RECOMPENSE AS MAY SEEM JUSTIFIED." 

THE SENATE PASSED THE BILL WITHOUT DEBATE ON JUNE 2.  98 CONG. REC.
6322.  IN THE HOUSE OF REPRESENTATIVES, THE BILL WAS REFERRED TO AND
CONSIDERED BY THE COMMITTEE ON THE JUDICIARY, WHICH RECOMMENDED ITS
PASSAGE IN A REPORT (H.R. REP. NO. 2220, 82D CONG., 2D SESS.)
SUBSTANTIALLY IDENTICAL WITH THE SENATE REPORT.  THE HOUSE PASSED THE
BILL ON JULY 2, 98 CONG. REC. 8931, AND IT WAS SIGNED BY THE PRESIDENT
ON JULY 14, 1952.  IT PROVIDES AS FOLLOWS: 

"THAT THE UNITED STATES COURT OF CLAIMS BE, AND HEREBY IS, GIVEN
JURISDICTION TO HEAR, DETERMINE, AND RENDER JUDGMENT, NOTWITHSTANDING
ANY STATUTE OF LIMITATIONS, LACHES, OR LAPSE OF TIME, ON THE CLAIM OF
ANY OWNER OR OPERATOR OF A GOLD MINE OR GOLD PLACER OPERATION FOR
LOSSES INCURRED ALLEGEDLY BECAUSE OF THE CLOSING OR CURTAILMENT OR
PREVENTION OF OPERATIONS OF SUCH MINE OR PLACER OPERATION AS A RESULT
OF THE RESTRICTIONS IMPOSED BY WAR PRODUCTION BOARD LIMITATION ORDER L
208 DURING THE EFFECTIVE LIFE THEREOF:  PROVIDED, THAT ACTIONS ON SUCH
CLAIMS SHALL BE BROUGHT WITHIN ONE YEAR FROM THE DATE THIS ACT BECOMES
EFFECTIVE."  66 STAT. 605. 

THEREUPON A NUMBER OF GOLD MINE OPERATORS BROUGHT SUIT IN THE COURT
OF CLAIMS, AND THEIR CLAIMS WERE CONSOLIDATED WITH THOSE INVOLVED IN
IDAHO MARYLAND FOR TRIAL ON THE ISSUE OF LIABILITY.  THESE PLAINTIFFS
PROCEEDED UNDER ALTERNATIVE CLAIMS AGAINST THE UNITED STATES: FIRST,
THAT THE ACTION OF THE GOVERNMENT IN ORDERING THEM TO CLOSE THEIR GOLD
MINES CONSTITUTED A TAKING OF THEIR PROPERTY THAT ENTITLED THEM TO JUST
COMPENSATION; AND, SECOND, THAT THE ACT OF JULY 14, 1952, CREATED
LIABILITY ON THE PART OF THE GOVERNMENT FOR THEIR PROVABLE LOSSES
RESULTING FROM THE CLOSING.  THE COURT OF CLAIMS (TWO JUDGES
DISSENTING) DECIDED THAT THE CLOSING OF THE MINES CONSTITUTED A
COMPENSABLE "TAKING" OF THE PLAINTIFFS' RIGHT TO OPERATE THEIR MINES
WITHIN THE MEANING OF THE FIFTH AMENDMENT.  THE COURT DEALT WITH THE
STATUTORY CLAIM IN THE FOLLOWING TERMS:  "IN VIEW OF OUR DECISION IN
THESE CASES IT IS UNNECESSARY TO DISCUSS THE VARIOUS CONTENTIONS
RELATIVE TO THE SPECIAL JURISDICTIONAL ACT OF JULY 14, 1952, 66 STAT.
605."  134 CT. CL. 1, 53, 138 F. SUPP. 281, 310 (1956). 

SINCE A COURT OF THE UNITED STATES MAY PROPERLY DECIDE A
CONSTITUTIONAL QUESTION ONLY IF THE CASE CANNOT FAIRLY BE DISPOSED OF
ON A NON-CONSTITUTIONAL BASIS, ANY STATUTORY QUESTION THAT IS NOT
FRIVOLOUS SHOULD BE MET AND DISPOSED OF BEFORE QUESTIONS REQUIRING
CONSTRUCTION OF THE CONSTITUTION ARE REACHED.  THE REASON FOR THE COURT
OF CLAIMS' FAILURE TO HEED THIS FUNDAMENTAL RULE CAN ONLY BE SURMISED. 
THIS LITIGATION WAS INITIATED BEFORE THE ACT OF JULY 14, 1952, HAD BEEN
PASSED BY CONGRESS AND WAS FRAMED EXCLUSIVELY IN CONSTITUTIONAL TERMS. 
THE STATUTORY CLAIM WAS INJECTED INTO THE LITIGATION AT A TIME WHEN THE
COURT, HAVING ALREADY HANDED DOWN SEVERAL DECISIONS ON THE QUESTION OF
WHETHER OR NOT A CLAIM UNDER THE FIFTH AMENDMENT HAD BEEN STATED, HAD
BECOME PREOCCUPIED WITH, AND, THEREFORE, ORIENTED TOWARD, THE
CONSTITUTIONAL ASPECTS OF THE CLAIMS.  UNDERSTANDABLE THOUGH THIS
APPROACH MAY BE, IT SHOULD NOT BE PERMITTED TO GOVERN THE ULTIMATE
DISPOSITION OF THE CASES BEFORE US.  IN THE INTEREST OF RESPONSIBLE
ADMINISTRATION OF OUR CONSTITUTIONAL SYSTEM, THE SCOPE AND MEANING OF
THE ACT OF JULY 14, 1952, CALL FOR DETERMINATION BEFORE ANY DECISION IS
MADE AS TO WHETHER OR NOT THE GOVERNMENT'S ACTION AMOUNTED TO A
"TAKING" WITHIN THE MEANING OF THE FIFTH AMENDMENT. 

THE CRITICAL QUESTION IS, OF COURSE, WHETHER THE ACT MERELY
ELIMINATES THE BAR OF THE STATUTE OF LIMITATIONS OR SUBSTANTIVELY
ESTABLISHES A CONGRESSIONALLY ACKNOWLEDGED BASIS FOR RECOVERY.  ON ITS
FACE, THE ACT IS READILY SUSCEPTIBLE OF EITHER INTERPRETATION.  THE
ACTION AUTHORIZED BY THE STATUTE - I.E., THE FILING OF A CERTAIN TYPE
OF SUIT IN THE COURT OF CLAIMS WITHIN ONE YEAR - IS CONSISTENT WITH
EITHER OF THESE ALTERNATIVE LEGISLATIVE ENDS.  IN ORDER TO WAIVE THE
GOVERNMENT'S THEN EXISTING DEFENSE OF THE STATUTE OF LIMITATIONS, IT
WAS NECESSARY FOR CONGRESS TO AUTHORIZE THE ASSERTION OF CLAIMS
NOTWITHSTANDING THE AVAILABILITY OF THAT DEFENSE.  AND RECOGNITION BY
CONGRESS OF WHAT IT MAY REGARD AS A JUST CLAIM AGAINST THE GOVERNMENT
IS NOT NECESSARILY TO BE MET BY AN OUTRIGHT APPROPRIATION TO THE
CLAIMANTS: THERE OFTEN REMAIN QUESTIONS (SUCH AS MAY BE INVOLVED HERE,
WHETHER OR NOT THE ALLEGED LOSSES WERE CAUSED BY THE GOVERNMENT'S
LIABILITY-CREATING ACTION) THAT CONGRESS QUITE PROPERLY WISHES TO HAVE
JUDICIALLY DETERMINED BEFORE FUNDS ARE TO BE WITHDRAWN FROM THE
TREASURY FOR THE BENEFIT OF CLAIMANTS. 

SINCE THE STATUTORY LANGUAGE ALONE SHEDS LITTLE LIGHT ON THE
CONGRESSIONAL PURPOSE, IT IS APPROPRIATE TO CANVASS THE LEGISLATIVE
BACKGROUND OF THE ACT.  AT THE OUTSET IT SHOULD BE NOTED THAT THE
LEGISLATIVE MANNER ATTENDING THE PASSAGE OF THE ACT HAS NO RELEVANCE AS
TO ITS INTERPRETATION.  IT IS NO MORE ADMISSIBLE THAT A STATUTE'S
PASSAGE VIRTUALLY WITHOUT DEBATE AND FROM A BILL ON THE CONSENT
CALENDAR SHOULD REFLECT ON ITS WEIGHT THAN THAT A DECISION OF THIS
COURT SHOULD BE GIVEN LESS WEIGHT BECAUSE IT WAS ARGUED ON THE SUMMARY
DOCKET.  THERE IS NO REASON TO SUPPOSE THAT THIS LEGISLATION DID NOT
RECEIVE THE CAREFUL STUDY THAT THE COMMITTEES IN THEIR REPORTS CLAIM TO
HAVE GIVEN IT.  HERE ONE NEED NOT EVEN DRAW ON THE INDISPUTABLE FACT
THAT MUCH LEGISLATION IS PASSED SOLELY ON THE BASIS OF COMMITTEE
RECOMMENDATIONS; THE GRIEVANCES OF THE GOLD MINING INDUSTRY HAD BEEN
CONTINUALLY PRESSED ON CONGRESS SINCE SHORTLY AFTER THE ISSUANCE OF L
208, (FN2) SO THAT THE PROBLEM TO WHICH THE ACT WAS DIRECTED WAS ONE
WITH WHICH MANY MEMBERS OF CONGRESS WERE UNDOUBTEDLY THOROUGHLY
CONVERSANT. 

NOTHING IS CLEARER FROM A READING OF THE COMMITTEES' REPORTS THAN
THAT THEIR MEMBERS REGARDED THE GOLD MINE OPERATORS TO HAVE BEEN
UNJUSTLY TREATED BY THE GOVERNMENT.  IT IS, OF COURSE, NO CONCERN OF
OURS WHETHER OR NOT THEY WERE JUSTIFIED IN THINKING SO.  THE REPORTS
QUOTE EXTENSIVELY FROM AN EARLIER REPORT CASTING SERIOUS DOUBT ON THE
PROPRIETY AND EVEN THE LEGALITY OF THE GOVERNMENT ORDER AND DETAILING
THE SERIOUSNESS OF THE INDUSTRY'S RESULTING LOSSES.  TO BE SURE,
SUPPORT MAY BE DRAWN FROM THIS CONDEMNATION FOR EITHER OF THE COMPETING
INTERPRETATIONS OF THE STATUTE.  IT MAY IMPLY A CONVICTION THAT THE
GOVERNMENT SHOULD PAY FOR WHATEVER LOSSES RESULTED FROM THE ISSUANCE OF
THE ORDER; BUT IT MAY ALSO SERVE AS NOTHING MORE THAN A JUSTIFICATION
FOR MAKING AN EXCEPTION TO THE STATUTE OF LIMITATIONS.  SPECIFIC
STATEMENTS IN THE REPORTS ONLY COMPOUND THIS AMBIGUITY.  THE COMMITTEES
MAKE CLEAR THEIR CONCERN THAT PROSPECTIVE CLAIMANTS, DISCOURAGED BY THE
ORO FINO DECISION, MAY HAVE FAILED TO ASSERT THEIR CLAIMS WITHIN THE
STATUTORY PERIOD, DISCOVERING TOO LATE (THROUGH THE IDAHO MARYLAND
DECISION) THAT THEY MIGHT HAVE RECOVERED.  SEE S. REP. NO. 1605, 82D
CONG., 2D SESS. 2; H.R. REP. NO. 2220, 82D CONG., 2D SESS. 2.  ON THE
OTHER HAND, THE COMMITTEES' CONCLUSIONS THAT "THE GOLD MINING INDUSTRY
WAS DEALT WITH IN A FASHION WHICH MERITS THE CONSIDERATION OF THE COURT
IN THE ADJUDICATION OF THE LOSSES WHICH MAY HAVE BEEN OCCASIONED BY
THIS ORDER" AND THAT "THE LEAST THAT CAN BE DONE IS TO ALLOW THOSE
PERSONS AFFECTED BY ORDER L-208 THEIR DAY IN COURT FOR SUCH RECOMPENSE
AS MAY SEEM JUSTIFIED," S. REP. NO. 1605, SUPRA, AT P. 7; H.R. REP. NO.
2220, SUPRA, AT P. 7, PROVIDE GROUND FOR INFERRING THAT CONGRESS
INTENDED TO ESTABLISH A RIGHT OF RECOVERY IF ONE DID NOT ALREADY
EXIST.  THE MOST, THEN, THAT CAN BE SAID CONCERNING THE BACKGROUND OF
THE ACT IS THAT IT IS INCONCLUSIVE. 

ALTHOUGH THE LANGUAGE OF THE STATUTE IS EQUIVOCAL AND ITS LEGISLATIVE
HISTORY AMBIGUOUS, ANOTHER RELEVANT LINE OF INQUIRY MUST BE PURSUED. 
THE ACT OF JULY 14, 1952, IS BUT ONE OF MANY SPECIAL JURISDICTIONAL
STATUTES PASSED FROM TIME TO TIME BY CONGRESS, AND A NUMBER OF THESE
HAVE BEEN CONSTRUED BY THE COURT OF CLAIMS.  AN EXAMINATION OF THESE
CASES TENDS TO CORROBORATE THE CONCLUSION THAT THE WORDING OF THE
STATUTE PROVIDES LITTLE CLUE TO ITS JUDICIALLY ASCERTAINABLE MEANING. 
THE PHRASE "TO HEAR, DETERMINE, AND RENDER JUDGMENT  ...  ON THE
CLAIM," OR AN APPROXIMATE EQUIVALENT, IS COMMON TO MOST SPECIAL
JURISDICTIONAL STATUTES, INCLUDING MANY THAT HAVE BEEN HELD TO DO NO
MORE THAN WAIVE LIMITED DEFENSES.  SEE, E.G., ACT OF SEPT. 25, 1950, 64
STAT. 1032, INVOLVED IN CALIFORNIA V. UNITED STATES, 127 CT. CL. 624,
628, 119 F. SUPP. 174, 177; ACT OF JUNE 15, 1946, 60 STAT. 1227,
INVOLVED IN ZEPHYR AIRCRAFT CORP. V. UNITED STATES, 122 CT. CL. 523,
551, 104 F. SUPP. 990, 997; CF. UNITED STATES V. MILLE LAC CHIPPEWAS,
229 U.S. 498, 500.  AGAIN, STATUTES SIMILAR IN SIGNIFICANT RESPECTS TO
THE ACT OF JULY 14, 1952, HAVE BEEN CONSTRUED IN SOME CASES TO CREATE A
LEGAL BASIS FOR RECOVERY WHERE NONE HAD EXISTED BEFORE, SEE, E.G., ACT
OF JUNE 14, 1935, 49 STAT. 2078, INVOLVED IN STUBBS V. UNITED STATES,
86 CT. CL. 152; ACT OF JUNE 25, 1938, 52 STAT. 1399, INVOLVED IN CREECH
V. UNITED STATES, 102 CT. CL. 301, 60 F. SUPP. 885, WHILE IN OTHER
CASES TO DO NO MORE THAN PROVIDE A FORUM FOR THE ADJUDICATION OF A
CLAIM ON THE BASIS OF EXISTING LEGAL PRINCIPLES, SEE, E.G., ACT OF MAY
11, 1948, 62 STAT. 1350, INVOLVED IN HEMPSTEAD WAREHOUSE CORP. V.
UNITED STATES, 120 CT. CL. 291, 98 F. SUPP. 572. 

IN MANY OF THESE SPECIAL JURISDICTIONAL STATUTES, CONGRESS HAS
CLARIFIED ITS PURPOSE BY EMPLOYING VARIOUS QUALIFYING PHRASES AND
CLAUSES.  THE ABSENCE OF SUCH QUALIFICATIONS MAY BE FOUND TO HAVE SOME
RELEVANCE IN THE INTERPRETATION OF THE STATUTE BEFORE US.  FOR EXAMPLE,
WHERE A SPECIFIC DEFENSE IS WAIVED (AS THE STATUTE OF LIMITATIONS IS
WAIVED IN THE ACT OF JULY 14, 1952), CONGRESS HAS ON OCCASION BEEN AT
PAINS TO EMPHASIZE THAT THE EFFECT OF THE STATUTE SHOULD EXTEND NO
FURTHER THAN THAT LIMITED WAIVER.  SEE, E.G., ACT.  OF AUG. 24, 1949,
63 STAT. 1169, INVOLVED IN BREINIG BROS., INC. V. UNITED STATES, 124
CT. CL. 645, 110 F. SUPP. 269; ACT OF OCT. 18, 1951, 65 STAT. A124,
INVOLVED IN WATSON V. UNITED STATES, 135 CT. CL. 145, 146 F. SUPP.
425.  MOREOVER, IT HAS NOT BEEN UNCOMMON FOR CONGRESS IN THESE STATUTES
SPECIFICALLY TO PROVIDE THAT THE PASSAGE OF THE ACT SHOULD NOT BE
CONSTRUED AS "AN INFERENCE OF LIABILITY" ON THE PART OF THE UNITED
STATES GOVERNMENT.  SEE, E.G., ACT OF JULY 16, 1952, 66 STAT. A206,
A207, INVOLVED IN GRIFFITH V. UNITED STATES, 135 CT. CL. 278; AND ACT
OF AUG. 25, 1950, 64 STAT. A191, INVOLVED IN BOOTH V. UNITED STATES,
140 CT. CL. 145, 155 F. SUPP. 235. 

OF COURSE, IF THERE IS ANY SIGNIFICANCE TO CONGRESS' FAILURE
EXPRESSLY TO LIMIT THE APPLICATION OF THE STATUTE, IT MUST ALSO BE
RECOGNIZED THAT CONGRESS FAILED TO EMPLOY TECHNIQUES THAT WOULD HAVE
MADE CLEAR ANY INTENTION TO CREATE A NEW RIGHT OF ACTION.  CONGRESS
MIGHT, FOR EXAMPLE, HAVE MADE A VIRTUAL CONFESSION OF LIABILITY AS IT
DID IN THE ACT OF MARCH 1, 1929, 45 STAT.  2345, INVOLVED IN GARRETT V.
UNITED STATES, 70 CT. CL. 304.  CONGRESS MIGHT HAVE WAIVED OTHER
DEFENSES THAN THE STATUTE OF LIMITATIONS.  SEE, E.G., THE ACT OF MAY
28, 1928, 45 STAT. 2001, INVOLVED IN ALCOCK V. UNITED STATES, 74 CT.
CL. 308.  OR CONGRESS MIGHT, AS IT HAS OFTEN DONE, SPELL OUT IN DETAIL
PRECISELY WHAT THE TASK OF THE COURT OF CLAIMS IS TO BE UNDER THE
STATUTE, MAKING CLEAR WHAT ISSUES REMAIN TO BE LITIGATED.  SEE, E.G.,
ACT OF JULY 2, 1956, 70 STAT. A103, INVOLVED IN KRAMER V. UNITED
STATES, 137 CT. CL. 537, 149 F. SUPP. 152; ACT OF JULY 16, 1952, 66
STAT. A206, INVOLVED IN GRIFFITH V. UNITED STATES, 135 CT. CL. 278; ACT
OF MARCH 19, 1951, 65 STAT. 5, INVOLVED IN BOARD OF COUNTY COMM'RS V.
UNITED STATES, 123 CT. CL. 304, 105 F. SUPP. 995. 

THE COURT OF CLAIMS, IN SEEKING TO DETERMINE THE MEANING OF THESE
STATUTES, HAS HAD OCCASION TO TURN TO THEIR LEGISLATIVE BACKGROUNDS. 
THE COURT HAS, FOR EXAMPLE, BEEN MORE READILY ABLE TO FIND AN INTENTION
ON THE PART OF CONGRESS TO ADMIT LIABILITY WHERE THE CLAIM IN QUESTION
AROSE OUT OF A NATIONAL EMERGENCY THAT HAD NECESSITATED HASTY AND
EXPERIMENTAL GOVERNMENTAL ACTION RESULTING IN DISPORPORTIONATE
HARDSHIPS, SEE NOLAN BROS. V. UNITED STATES, 98 CT. CL. 41, 89 (ACT OF
JULY 23, 1937, 50 STAT. 533); CF. MANSFIELD V. UNITED STATES, 89 CT.
CL. 12 (ACT OF AUG. 19, 1935, 49 STAT. 2148).  SIGNIFICANCE HAS ALSO
BEEN ATTACHED TO THE FACT THAT CONGRESS REGARDED THE GOVERNMENTAL
ACTION TO HAVE BEEN WRONGFUL.  SEE HAWKINS V. UNITED STATES, 96 CT.
CL. 357, 369-370 (ACT OF FEB. 11, 1936, 49 STAT. 2217)(STATEMENT IN
COMMITTEE REPORT TO EFFECT THAT ACTION WAS "UNMORAL, INEQUITABLE, AND
UNJUST").  CONTRARIWISE, HOWEVER, WHERE CONGRESS HAS NOT MADE ITS
INTENTION QUITE CLEAR, THE COURT HAS APPROACHED ITS TASK WITH CAUTION,
SEE HEMPSTEAD WAREHOUSE CORP. V. UNITED STATES, SUPRA, 120 CT. CL., AT
305, 98 F. SUPP., AT 573; AND IT HAS OFTEN ASSERTED THAT SPECIAL
JURISDICTIONAL STATUTES SHOULD BE STRICTLY CONSTRUED.  SEE, E.G.,
CALIFORNIA V. UNITED STATES, SUPRA, 127 CT. CL., AT 629-630, 119 F.
SUPP., AT 178-179; CF. UNITED STATES V. CUMMING, 130 U.S. 452, 455. 

THUS, EVEN THIS LIMITED EXAMINATION OF RELEVANT MATERIALS LEAVES ONE
VERY MUCH IN BALANCE.  BUT THE FACT THAT THE ANSWER TO THIS QUESTION IS
NOT EASY IS NO EXCUSE FOR PASSING OVER IT AND DECIDING CONSTITUTIONAL
QUESTIONS.  IT IS STARTLING DOCTRINE TO CONSTRUE THE CONSTITUTION IN
ORDER TO AVOID DIFFICULT QUESTIONS OF STATUTORY INTERPRETATION.  IT MAY
WELL BE THAT THE COURT OF CLAIMS, EXPERIENCED AS IT OBVIOUSLY IS IN
INTERPRETING SUCH STATUTES AS THESE, MAY FIND THE PURPOSE OF THE ACT OF
JULY 14, 1952, MORE READILY SUSCEPTIBLE OF DETERMINATION THAN COULD A
COURT NOT POSSESSED OF THAT SPECIALIZED COMPETENCE.  WHEN THE
ALTERNATIVES ARE INITIAL AND YET FINAL DECISION BY THIS COURT AND
DECISION BY AN EXPERIENCED COURT WITH THE POSSIBILITY OF REVIEW IN THIS
COURT, THE CHOICE SEEMS CLEAR.  I WOULD SEND THE CASE BACK TO THE COURT
OF CLAIMS FOR AN AUTHORITATIVE CONSTRUCTION OF THE SPECIAL
JURISDICTIONAL ACT. 

FN1  THAT DECISION ALSO GOVERNED THE COMPANION CASES OF HOMESTAKE
MINING CO. V. UNITED STATES, 122 CT. CL. 690, AND CENTRAL EUREKA MINING
CO. V. UNITED STATES, 122 CT. CL. 691. 

FN2  E.G., S. 27, 78TH CONG.; S. 344, 78TH CONG.; H.R. 3009, 78TH
CONG.; H.R. 3682, 78TH CONG.; H.R. 5093, 78TH CONG.; H.R. 4393, 79TH
CONG.; H.R. 950, 80TH CONG.; S. 45, 81ST CONG.; H.R. 7851, 81ST CONG. 

MR. JUSTICE HARLAN, DISSENTING. 

I DISSENT BECAUSE I BELIEVE THAT THE FIFTH AMENDMENT TO THE
CONSTITUTION REQUIRES THE GOVERNMENT TO PAY JUST COMPENSATION TO THE
RESPONDENTS FOR THE TEMPORARY "TAKING" OF THEIR PROPERTY ACCOMPLISHED
BY WPB ORDER L-208. 

THE COURT VIEWS L-208 AS A NORMAL REGULATORY MEASURE OF THE WPB,
WHICH HAD AUTHORITY TO ALLOCATE CRITICAL MATERIALS DURING THE LATE
WAR.  IT HOLDS THAT THIS WAS THE CHARACTER OF THE ADMINISTRATIVE ORDER
EVEN THOUGH THE COURT OF CLAIMS FOUND THAT L-208 WAS ACTUALLY DESIGNED
TO CAUSE A SHIFT OF GOLD MINERS TO OTHER NONFERROUS METAL MINES, RATHER
THAN TO CONTROL THE ALLOCATION OF MINING EQUIPMENT IN SHORT SUPPLY, AS
THE ORDER ON ITS FACE PURPORTED TO DO.  IN SO HOLDING, THE COURT
EMPHASIZES THAT THE "MANPOWER" OBJECTIVE WAS SIMPLY ONE OF THE PURPOSES
OF L-208.  I AM UNABLE TO RECONCILE THE COURT'S CONCLUSIONS WITH THE
FINDINGS OF THE COURT OF CLAIMS.  FINDING 46 OF THE COURT OF CLAIMS
STATES THAT REALLOCATION OF GOLD MINERS BY FORCED CLOSURE OF THE GOLD
MINES WAS "THE DOMINANT CONSIDERATION  ...  IN THE ISSUANCE OF  ...  L
208."  THAT THIS FINDING REFLECTED THE CONCLUSION THAT THE "MANPOWER"
PURPOSE WAS THE SOLE OBJECTIVE OF THE ORDER SEEMS CLEAR FROM THE FACT
THAT THE COURT OF CLAIMS STRUCK FROM THIS FINDING, AS SUBMITTED TO IT
BY THE HEARING OFFICER, THE FOLLOWING TWO SENTENCES: 

"ANOTHER CONSIDERATION IN THE ISSUANCE OF THE ORDER WAS AS STATED IN
THE PREAMBLE THAT THE FULFILLMENT OF REQUIREMENTS FOR THE DEFENSE OF
THE UNITED STATES HAD CREATED A SHORTAGE IN THE SUPPLY OF CRITICAL
MATERIALS WHICH HAD BEEN USED IN THE MAINTENANCE AND OPERATION OF GOLLD
MINES. 

"BOTH OBJECTIVES (THE OTHER BEING "MANPOWER") WERE IN SOME MEASURE
ACCOMPLISHED WITH THE CLOSING OF THE PLAINTIFFS' GOLD MINES PURSUANT TO
THE ORDER." 

ON THE BASIS OF ITS FINDINGS, THE COURT OF CLAIMS CONCLUDED IN ITS
OPINION: 

"FROM THE LANGUAGE OF THE ORDER ITSELF (L-208) AND FROM THE
CIRCUMSTANCES SURROUNDING ITS PROMULGATION, IT IS APPARENT THAT ITS
ONLY PURPOSE WAS TO DEPRIVE THE GOLD MINE OWNERS AND OPERATORS OF THEIR
RIGHT TO MAKE USE OF THEIR MINING PROPERTIES." 

THESE CONCLUSIONS, WHICH SEEM TO ME TO BE CONVINCINGLY SUPPORTED BY
THE EVIDENCE IN THE RECORD, REQUIRE THAT L-208 BE REGARDED AS HAVING NO
OTHER PURPOSE THAN TO EFFECT THE CLOSING OF RESPONDENTS' MINES IN ORDER
TO FREE GOLD MINE LABOR FOR ESSENTIAL WAR WORK.  THE GOVERNMENT
ACKNOWLEDGES THAT DURING THE WAR IT LACKED ANY LEGAL AUTHORITY TO ORDER
THE TRANSFER OF CIVILIAN MANPOWER. 

VIEWING L-208 IN THIS LIGHT, I CANNOT AGREE WITH THE COURT'S
CONCLUSION THAT THE ORDER WAS SIMPLY A "REGULATION" INCIDENT TO WHICH
RESPONDENTS HAPPENED TO SUFFER FINANCIAL LOSS.  INSTEAD, I BELIEVE THAT
L-208 EFFECTED A TEMPORARY "TAKING" OF THE RESPONDENTS' RIGHT TO MINE
GOLD WHICH IS COMPENSABLE UNDER THE FIFTH AMENDMENT. 

L-208 WAS THE ONLY ORDER PROMULGATED DURING WORLD WAR II WHICH BY ITS
TERMS REQUIRED A LAWFUL AND PRODUCTIVE INDUSTRY TO SHUT DOWN AT A
SEVERE ECONOMIC COST.  SEE S. REP. NO. 1605, 82D CONG., 2D SESS. 3.  AS
A RESULT OF THE ORDER THE RESPONDENTS WERE TOTALLY DEPRIVED OF THE
BENEFICIAL USE OF THEIR PROPERTY.  ANY SUGGESTION THAT THE MINES COULD
HAVE BEEN USED IN SUCH A WAY (THAT IS, OTHER THAN TO MINE GOLD) SO AS
TO REMOVE THEM FROM THE SCOPE OF THE ORDER WOULD BE CHIMERICAL.  NOT
ONLY WERE THE RESPONDENTS COMPLETELY PREVENTED FROM MAKING PROFITABLE
USE OF THEIR PROPERTY, BUT THE GOVERNMENT ACQUIRED ALL THAT IT WANTED
FROM THE MINES - THEIR COMPLETE IMMOBILIZATION AND THE RESULTING
DISCHARGE OF THE HARDROCK MINERS.  IT IS PLAIN THAT AS A PRACTICAL
MATTER THE ORDER LED TO CONSEQUENCES NO DIFFERENT FROM THOSE THAT WOULD
HAVE FOLLOWED THE TEMPORARY ACQUISITION OF PHYSICAL POSSESSION OF THESE
MINES BY THE UNITED STATES. 

IN THESE CIRCUMSTANCES MAKING THE RESPONDENTS' RIGHT TO COMPENSATION
TURN ON WHETHER THE GOVERNMENT TOOK THE CEREMONIAL STEP OF PLANTING THE
AMERICAN FLAG ON THE MINING PREMISES, CF. UNITED STATES V. PEWEE COAL
CO., 341 U.S. 114, 116, IS SURELY TO PERMIT TECHNICALITIES OF FORM TO
DICTATE CONSEQUENCES OF SUBSTANCE.  IN MY JUDGMENT THE PRESENT CASE
SHOULD BE VIEWED PRECISELY AS IF THE UNITED STATES, IN ORDER TO
ACCOMPLISH ITS PURPOSE OF FREEING GOLD MINERS FOR ESSENTIAL WORK, HAD
TAKEN POSSESSION OF THE GOLD MINES AND ALLOWED THEM TO LIE FALLOW FOR
THE DURATION OF THE WAR.  HAD THE GOVERNMENT ADOPTED THE LATTER COURSE
IT IS HARDLY DEBATABLE THAT RESPONDENTS WOULD HAVE BEEN ENTITLED TO
COMPENSATION.  SEE UNITED STATES V. PEWEE COAL CO., SUPRA. 

AS THE COURT RECOGNIZES, GOVERNMENTAL ACTION IN THE FORM OF
REGULATION WHICH SEVERELY DIMINISHES THE VALUE OF PROPERTY MAY
CONSTITUTE A "TAKING."  SEE UNITED STATES V. KANSAS CITY LIFE INS. CO.,
339 U.S. 799; UNITED STATES V. CAUSBY, 328 U.S. 256; RICHARDS V.
WASHINGTON TERMINAL CO., 233 U.S. 546.  "THE GENERAL RULE AT LEAST IS,
THAT WHILE PROPERTY MAY BE REGULATED TO A CERTAIN EXTENT, IF REGULATION
GOES TOO FAR IT WILL BE RECOGNIZED AS A TAKING."  PENNSYLVANIA COAL CO.
V. MAHON, 260 U.S. 393, 415.  IN MY OPINION APPLICATION OF THIS
PRINCIPLE CALLS HERE FOR THE CONCLUSION THAT THERE WAS A "TAKING," FOR
IT IS DIFFICULT TO CONCEIVE OF A GREATER IMPAIRMENT OF THE USE OF
PROPERTY BY A REGULATORY MEASURE THAN THAT SUFFERED BY THE RESPONDENTS
AS A RESULT OF L-208. 

NONE OF THE CASES RELIED ON BY THE GOVERNMENT PRECLUDES OUR
ACKNOWLEDGING THE CONFISCATORY NATURE OF L-208 AND ACCORDING
RESPONDENTS JUST COMPENSATION.  EXCEPT IN THE EXTRAORDINARY SITUATION
WHERE PRIVATE PROPERTY IS DESTROYED BY AMERICAN ARMED FORCES TO MEET
THE EXIGENCIES OF THE MILITARY SITUATION IN A THEATRE OF WAR, SEE
UNITED STATES V. CALTEX, INC., 344 U.S. 149, NO CASE IN THIS COURT HAS
HELD THAT THE GOVERNMENT IS EXCUSED FROM PROVIDING COMPENSATION WHEN
PROPERTY HAS BEEN "TAKEN" FROM ITS OWNERS DURING WARTIME IN THE
INTEREST OF THE COMMON GOOD.  CASES SUCH AS YAKUS V. UNITED STATES, 321
U.S. 414; BOWLES V. WILLINGHAM, 321 U.S. 503; LICHTER V. UNITED STATES,
334 U.S. 742, INVOLVING THE WARTIME REGULATION OF PRICES, RENTS, AND
PROFITS, ARE WIDE OF THE MARK.  IN ALL OF THEM THE GOVERNMENT WAS
ADMINISTERING A NATIONWIDE REGULATORY SYSTEM RATHER THAN A NARROWLY
CONFINED ORDER DIRECTED TO A SMALL, SINGLED-OUT CATEGORY OF INDIVIDUAL
CONCERNS.  FURTHERMORE, NONE OF THE REGULATIONS INVOLVED IN THOSE CASES
PROHIBITED THE PROFITABLE EXPLOITATION OF A LEGAL BUSINESS.  AND IN
NONE OF THEM DID THE GOVERNMENT, FOLLOWING ISSUANCE OF ITS EDICT, STAND
VIRTUALLY IN THE POSITION OF ONE IN PHYSICAL POSSESSION OF THE
PROPERTY. 

ALSO BESIDE THE POINT ARE THE WARTIME PROHIBITION CASES.  HAMILTON V.
KENTUCKY DISTILLERIES & WAREHOUSE CO., 251 U.S. 146, DEALT WITH THE
CONSEQUENCES OF THE ACT OF NOVEMBER 21, 1918, 40 STAT. 1045, 1046,
WHICH PLACED UPON THE PROPERTY OWNERS A BURDEN NOT NEARLY SO ONEROUS AS
THE ONE IMPOSED ON RESPONDENTS BY L-208.  THAT ACT PERMITTED
UNRESTRICTED SALE OF LIQUOR FOR MORE THAN SEVEN MONTHS FROM THE DATE OF
ITS PASSAGE, AND EVEN AFTER THAT TIME THERE WAS NO RESTRICTION ON SALE
FOR EXPORT OR ON LOCAL SALE FOR OTHER THAN BEVERAGE PURPOSES. 
MOREOVER, THE PROHIBITION CASES AROSE ONLY AFTER CONGRESSIONAL ACTION
DEALING SPECIFICALLY WITH THE SALE OF LIQUOR, AND THE COURT IN HAMILTON
PARTICULARLY ADVERTED TO THE FACT THAT CONGRESS MIGHT PROPERLY CONCLUDE
THAT SUCH SALE SHOULD BE HALTED "IN ORDER TO GUARD AND PROMOTE THE
EFFICIENCY" OF THE ARMED FORCES AND DEFENSE WORKERS.  HAMILTON V.
KENTUCKY DISTILLERIES & WAREHOUSE CO., SUPRA, AT 155.  THIS LATTER
FACTOR WAS ALSO THE PREMISE OF JACOB RUPPERT V. CAFFEY, 251 U.S. 264. 
NOT ONLY HAS THERE BEEN NO COMPARABLE CONGRESSIONAL FINDING THAT GOLD
MINING WAS INJURIOUS, BUT THE SENATE COMMITTEE ON THE JUDICIARY, WHICH
CONDUCTED A THOROUGH ANALYSIS OF THE OPERATION OF L-208, RECOGNIZED
THAT "ISSUANCE OF THE ORDER WAS AN ADMINISTRATIVE ERROR  ...  AND MAY,
FURTHERMORE, HAVE BEEN ILLEGAL."  S. REP. NO. 1605, 82D CONG., 2D SESS.
3.    THE QUESTION WHETHER THERE HAS BEEN A TAKING CANNOT OF COURSE BE
RESOLVED BY GENERAL FORMULAE, BUT MUST TURN ON THE CIRCUMSTANCES OF
EACH PARTICULAR CASE.  AS I HAVE SHOWN, THE PRESENT CASE IS PLAINLY
OUTSIDE THE RUN OF PAST DECISIONS.  IN THOSE CASES THE COURT WAS
RIGHTFULLY RELUCTANT TO SANCTION COMPENSATION FOR LOSSES RESULTING FROM
WARTIME REGULATORY MEASURES WHICH, UNDER CONDITIONS OF TOTAL
MOBILIZATION, HAVE RAMIFICATIONS TOUCHING EVERYONE IN ONE DEGREE OR
ANOTHER.  BUT WHERE THE GOVERNMENT PROCEEDS BY INDIRECTION, AND
ACCOMPLISHES BY REGULATION WHAT IS THE EQUIVALENT OF OUTRIGHT PHYSICAL
SEIZURE OF PRIVATE PROPERTY, COURTS SHOULD GUARD THEMSELVES AGAINST
PERMITTING FORMALITIES TO OBSCURE ACTUALITIES.  AS MR. JUSTICE HOLMES
OBSERVED IN PENNSYLVANIA COAL CO. V. MAHON, SUPRA, AT 416:  "WE ARE IN
DANGER OF FORGETTING THAT A STRONG PUBLIC DESIRE TO IMPROVE THE PUBLIC
CONDITION IS NOT ENOUGH TO WARRANT ACHIEVING THE DESIRE BY A SHORTER
CUT THAN THE CONSTITUTIONAL WAY OF PAYING FOR THE CHANGE." 

WE SHOULD TREAT L-208 AS BEING WHAT IN EVERY REALISTIC SENSE IT WAS,
A TEMPORARY CONFISCATION OF RESPONDENTS' PROPERTY.  THE GOVERNMENT IS
NOT ABSOLVED FROM PROVIDING JUST COMPENSATION HERE BECAUSE THE WPB MAY
HAVE LACKED AUTHORITY TO "TAKE" RESPONDENTS' MINES IN ORDER TO FREE THE
MINERS FOR ESSENTIAL WORK IN OTHER MINES.  SEE INTERNATIONAL PAPER CO.
V. UNITED STATES, 282 U.S. 399, 406; CF. HATAHLEY V. UNITED STATES, 351
U.S. 173.  I NEED HARDLY ADD THAT WE SHOULD NOT BE DETERRED FROM
ACCORDING RESPONDENTS THEIR DUE BECAUSE THEIR CLAIMS AND THOSE OF
OTHERS SIMILARLY SITUATED MAY RUN INTO SIZABLE AMOUNTS.  THE COURT OF
CLAIMS, CERTAINLY NOT GIVEN TO THE EASY ALLOWANCE OF DEMANDS UPON THE
PUBLIC TREASURY, FACED UP TO WHAT THE CONSTITUTION PLAINLY REQUIRES IN
THIS INSTANCE.  WE SHOULD AFFIRM ITS JUDGMENT. 
..END :












LENG MAY MA V. BARBER 357 U.S. 185 


NO. 105.  ARGUED MAY 20, 1958 - DECIDED JUNE 16, 1958 - 241 F.2D 85,
AFFIRMED. 


PETITIONER, A NATIVE OF CHINA, CAME TO THE UNITED STATES IN 1951,
CLAIMING CITIZENSHIP.  PENDING DETERMINATION OF HER CLAIM, SHE WAS AT
FIRST HELD IN CUSTODY BUT LATER WAS RELEASED ON PAROLE.  WHEN IT WAS
DETERMINED THAT SHE WAS NOT A CITIZEN, SHE WAS ORDERED EXCLUDED.  SHE
SURRENDERED, BUT APPLIED FOR A STAY OF DEPORTATION UNDER SEC. 243(H) OF
THE IMMIGRATION AND NATIONALITY ACT, ON THE GROUND THAT HER DEPORTATION
TO CHINA WOULD SUBJECT HER TO PHYSICAL PERSECUTION AND PROBABLE DEATH
AT THE HANDS OF THE EXISTING GOVERNMENT.  THE STAY WAS DENIED, AND SHE
SOUGHT A WRIT OF HABEAS CORPUS.  HELD:  HER RELEASE ON PAROLE DID NOT
ALTER HER STATUS AS AN EXCLUDED ALIEN; SHE WAS NOT "WITHIN THE UNITED
STATES," WITHIN THE MEANING OF SEC. 243(H); AND THUS SHE WAS NOT
ELIGIBLE FOR THE BENEFITS OF THAT SECTION.  PP. 185-190. 

LENG MAY MA V. BARBER, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A HABEAS CORPUS CASE INVOLVING SEC. 243(H) OF THE IMMIGRATION
AND NATIONALITY ACT, WHICH AUTHORIZES THE ATTORNEY GENERAL "TO WITHHOLD
DEPORTATION OF ANY ALIEN WITHIN THE UNITED STATES TO ANY COUNTRY IN
WHICH IN HIS OPINION THE ALIEN WOULD BE SUBJECT TO PHYSICAL PERSECUTION
...  ."  (FN1)  CLAIMING TO BE AN ALIEN "WITHIN THE UNITED STATES" BY
REASON OF HER PAROLE IN THIS COUNTRY WHILE HER ADMISSIBILITY WAS BEING
DETERMINED, PETITIONER CONTENDS THAT SHE IS ELIGIBLE TO RECEIVE THE
BENEFACTIONS OF SEC. 243(H).  THE ATTORNEY GENERAL CONTENDS THAT THE
ENTERED THE UNITED STATES.  HE ARGUES THAT PETITIONER HAS NEVER ENJOYED
THAT STATUS BECAUSE SHE EVENTUALLY WAS FOUND INELIGIBLE FOR ENTRY AND
ORDERED EXCLUDED.  THE DISTRICT COURT DENIED A WRIT OF HABEAS CORPUS,
AND THE COURT OF APPEALS AFFIRMED.  241 F.2D 85.  WE GRANTED
CERTIORARI.  353 U.S. 981 (1957).  WE CONCLUDE THAT PETITIONER'S PAROLE
DID NOT ALTER HER STATUS AS AN EXCLUDED ALIEN OR OTHERWISE BRING HER
"WITHIN THE UNITED STATES" IN THE MEANING OF SEC. 243(H). 

PETITIONER IS A NATIVE OF CHINA WHO ARRIVED IN THIS COUNTRY IN MAY
1951 CLAIMING UNITED STATES CITIZENSHIP ON THE GROUND THAT HER FATHER
WAS A UNITED STATES CITIZEN.  PENDING DETERMINATION OF HER CLAIM, SHE
AT FIRST WAS HELD IN CUSTODY, BUT LATER, IN AUGUST 1952, WAS RELEASED
ON PAROLE.  SOME THREE MONTHS THEREAFTER, HAVING FAILED TO ESTABLISH
HER CLAIM OF CITIZENSHIP, SHE WAS ORDERED EXCLUDED, AND THE BOARD OF
IMMIGRATION APPEALS AFFIRMED.  SHE SURRENDERED FOR DEPORTATION IN
JANUARY 1954, AND THEREAFTER APPLIED FOR A STAY OF DEPORTATION UNDER
SEC. 243(H) IN WHICH SHE ALLEGED THAT HER PENDING DEPORTATION TO CHINA
WOULD SUBJECT HER TO PHYSICAL PERSECUTION AND PROBABLE DEATH AT THE
HANDS OF THE EXISTING GOVERNMENT.  HER PETITION FOR WRIT OF HABEAS
CORPUS FOLLOWED ADMINISTRATIVE NOTIFICATION OF HER INELIGIBILITY FOR
RELIEF UNDER THAT SECTION.  PETITIONER DOES NOT CHALLENGE THE VALIDITY
OF HER EXCLUSION ORDER OR THE PROCEEDINGS CULMINATING THEREIN.  SHE
MERELY CONTENDS THAT BY VIRTUE OF HER PHYSICAL PRESENCE AS A PAROLEE
SHE IS "WITHIN THE UNITED STATES," AND HENCE COVERED BY SEC. 243(H). 
THE QUESTION, THEREFORE, IS WHOLLY ONE OF STATUTORY CONSTRUCTION. 

IT IS IMPORTANT TO NOTE AT THE OUTSET THAT OUR IMMIGRATION LAWS HAVE
LONG MADE A DISTINCTION BETWEEN THOSE ALIENS WHO HAVE COME TO OUR
SHORES SEEKING ADMISSION, SUCH AS PETITIONER, AND THOSE WHO ARE WITHIN
THE UNITED STATES AFTER AN ENTRY, IRRESPECTIVE OF ITS LEGALITY.  IN THE
LATTER INSTANCE THE COURT HAS RECOGNIZED ADDITIONAL RIGHTS AND
PRIVILEGES NOT EXTENDED TO THOSE IN THE FORMER CATEGORY WHO ARE MERELY
"ON THE THRESHOLD OF INITIAL ENTRY."  SHAUGHNESSY V. UNITED STATES EX
REL. MEZEI, 345 U.S. 206, 212 (1953).  SEE KWONG HAI CHEW V. COLDING,
344 U.S. 590, 596 (1953).  THE DISTINCTION WAS CAREFULLY PRESERVED IN
TITLE II OF THE IMMIGRATION AND NATIONALITY ACT.  CHAPTER 4 (FN2)
SUBJECTS THOSE SEEKING ADMISSION TO "EXCLUSION PROCEEDINGS" TO
DETERMINE WHETHER THEY "SHALL BE ALLOWED TO ENTER OR SHALL BE EXCLUDED
AND DEPORTED."  66 STAT. 200, 8 U.S.C. SEC. 1226(A).  ON THE OTHER
HAND, CHAPTER 5 (FN3) CONCERNS ITSELF WITH ALIENS WHO HAVE ALREADY
ENTERED THE UNITED STATES AND ARE SUBJECT TO "EXPULSION," AS
DISTINGUISHED FROM "EXCLUSION," IF THEY FALL WITHIN CERTAIN "GENERAL
CLASSES OF DEPORTABLE ALIENS."  66 STAT. 204, 8 U.S.C. SEC. 1251. 
PROCEEDINGS FOR EXPULSION UNDER CHAPTER 5 ARE COMMONLY REFERRED TO AS
"DEPORTATION PROCEEDINGS."  PARENTHETICALLY, THE WORD "DEPORTATION"
APPEARS ALSO IN CHAPTER 4 TO REFER TO THE RETURN OF EXCLUDED ALIENS
FROM THE COUNTRY, BUT ITS USE THERE REFLECTS NONE OF THE TECHNICAL
GLOSS ACCOMPANYING ITS USE AS A WORD OF ART IN CHAPTER 5. 

FOR OVER A HALF CENTURY THIS COURT HAS HELD THAT THE DETENTION OF AN
ALIEN IN CUSTODY PENDING DETERMINATION OF HIS ADMISSIBILITY DOES NOT
LEGALLY CONSTITUTE AN ENTRY THOUGH THE ALIEN IS PHYSICALLY WITHIN THE
UNITED STATES.  SHAUGHNESSY V. UNITED STATES EX REL. MEZEI, 345 U.S.
206, 215 (1953); UNITED STATES V. JU TOY, 198 U.S. 253, 263 (1905);
EKIU V. UNITED STATES, 142 U.S. 651, 661 (1892).  IT SEEMS QUITE CLEAR
THAT AN ALIEN SO CONFINED WOULD NOT BE "WITHIN THE UNITED STATES" FOR
PURPOSES OF SEC. 243(H).  THIS, IN FACT, WAS CONCEDED BY RESPONDENTS IN
THE COMPANION CASE, ROGERS V. QUAN, POST, P. 193.  OUR QUESTION IS
WHETHER THE GRANTING OF TEMPORARY PAROLE SOMEHOW EFFECTS A CHANGE IN
THE ALIEN'S LEGAL STATUS.  IN SEC. 212(D)(5) OF THE ACT, GENERALLY A
CODIFICATION OF THE ADMINISTRATIVE PRACTICE PURSUANT TO WHICH
PETITIONER WAS PAROLED, (FN4) THE CONGRESS SPECIFICALLY PROVIDED THAT
PAROLE "SHALL NOT BE REGARDED AS AN ADMISSION OF THE ALIEN," AND THAT
AFTER THE RETURN TO CUSTODY THE ALIEN'S CASE "SHALL CONTINUE TO BE
DEALT WITH IN THE SAME MANNER AS THAT OF ANY OTHER APPLICANT FOR
ADMISSION TO THE UNITED STATES."  (FN5)  PETITIONER'S CONCEPT OF THE
EFFECT OF PAROLE CERTAINLY FINDS NO SUPPORT IN THIS STATUTORY
LANGUAGE. 

THIS COURT PREVIOUSLY HAS HAD OCCASION TO DEFINE THE LEGAL STATUS OF
EXCLUDED ALIENS ON PAROLE.  IN KAPLAN V. TOD, 267 U.S. 228 (1925), AN
EXCLUDED ALIEN WAS PAROLED TO A PRIVATE IMMIGRANT AID SOCIETY PENDING
DEPORTATION.  THE QUESTIONS POSED WERE WHETHER THE ALIEN WAS "DWELLING
IN THE UNITED STATES" WITHIN THE MEANING OF A NATURALIZATION STATUTE,
AND WHETHER SHE HAD "ENTERED OR WAS FOUND IN THE UNITED STATES" FOR
PURPOSE OF LIMITATIONS.  MR. JUSTICE HOLMES DISPOSED OF THE PROBLEM BY
EXPLICITLY EQUATING PAROLE WITH DETENTION: 

"THE APPELLANT COULD NOT LAWFULLY HAVE LANDED IN THE UNITED STATES
...  , AND UNTIL SHE LEGALLY LANDED 'COULD NOT HAVE DWELT WITHIN THE
UNITED STATES.'  ZARTARIAN V. BILLINGS, 204 U.S. 170, 175.  MOREOVER
WHILE SHE WAS AT ELLIS ISLAND SHE WAS TO BE REGARDED AS STOPPED AT THE
BOUNDARY LINE AND KEPT THERE UNLESS AND UNTIL HER RIGHT TO ENTER SHOULD
BE DECLARED.  UNITED STATES V. JU TOY, 198 U.S. 253, 263.  WHEN HER
PRISON BOUNDS WERE ENLARGED BY COMMITTING HER TO THE CUSTODY OF THE
HEBREW SOCIETY, THE NATURE OF HER STAY WITHIN THE TERRITORY WAS NOT
CHANGED.  SHE WAS STILL IN THEORY OF LAW AT THE BOUNDARY LINE AND HAD
GAINED NO FOOTHOLD IN THE UNITED STATES."  267 U.S., AT 230. 

WE FIND NO EVIDENCE THAT THE CONGRESS, IN ENACTING SEC. 243(H) IN
1952, INTENDED TO DEPART FROM THIS INTERPRETATION. 

THE CONTEXT IN WHICH SEC. 243(H) APPEARS IN THE ACT PERSUASIVELY
INDICATES THE SCOPE OF ITS PROVISIONS.  AS WE HAVE OBSERVED, TITLE II
OF THE ACT PRESERVES THE DISTINCTION BETWEEN EXCLUSION PROCEEDINGS AND
DEPORTATION (EXPULSION) PROCEEDINGS, CHAPTER 4 DEALING WITH THE FORMER
AND CHAPTER 5 WITH THE LATTER.  WITHIN THE TWO CHAPTERS ARE ENUMERATED
SEPARATE ADMINISTRATIVE PROCEDURES FOR EXCLUSION AND EXPULSION,
SEPARATE PROVISIONS FOR REMOVAL AND TRANSPORTATION, AND - MOST
SIGNIFICANTLY - SEPARATE PROVISIONS FOR STAYS OF DEPORTATION.  SECTION
243(H), UNDER WHICH PETITIONER CLAIMS RELIEF, WAS INSERTED BY THE
CONGRESS NOT AMONG CHAPTER 4'S "PROVISIONS RELATING TO ENTRY AND
EXCLUSION," BUT SQUARELY WITHIN CHAPTER 5 - A STRIKINGLY INAPPROPRIATE
PLACE IF, AS PETITIONER CLAIMS, IT WAS INTENDED TO APPLY TO EXCLUDED
ALIENS. 

THE PAROLE OF ALIENS SEEKING ADMISSION IS SIMPLY A DEVICE THROUGH
WHICH NEEDLESS CONFINEMENT IS AVOIDED WHILE ADMINISTRATIVE PROCEEDINGS
ARE CONDUCTED.  IT WAS NEVER INTENDED TO AFFECT AN ALIEN'S STATUS, AND
TO HOLD THAT PETITIONER'S PAROLE PLACED HER LEGALLY "WITHIN THE UNITED
STATES" IS INCONSISTENT WITH THE CONGRESSIONAL MANDATE, THE
ADMINISTRATIVE CONCEPT OF PAROLE, AND THE DECISIONS OF THIS COURT. 
PHYSICAL DETENTION OF ALIENS IS NOW THE EXCEPTION, NOT THE RULE, AND IS
GENERALLY EMPLOYED ONLY AS TO SECURITY RISKS OR THOSE LIKELY TO
ABSCOND.  SEE ANNUAL REPORTS, IMMIGRATION AND NATURALIZATION SERVICE,
1955, PP. 5-6; 1956, PP. 5-6.  CERTAINLY THIS POLICY REFLECTS THE
HUMANE QUALITIES OF AN ENLIGHTENED CIVILIZATION.  THE ACCEPTANCE OF
PETITIONER'S POSITION IN THIS CASE, HOWEVER, WITH ITS INHERENT
SUGGESTION OF AN ALTERED PAROLE STATUS, WOULD BE QUITE LIKELY TO PROMPT
SOME CURTAILMENT OF CURRENT PAROLE POLICY - AN INTENTION WE ARE
RELUCTANT TO IMPUTE TO THE CONGRESS.   AFFIRMED. 

FN1  SECTION 243(H):  "THE ATTORNEY GENERAL IS AUTHORIZED TO WITHHOLD
DEPORTATION OF ANY ALIEN WITHIN THE UNITED STATES TO ANY COUNTRY IN
WHICH IN HIS OPINION THE ALIEN WOULD BE SUBJECT TO PHYSICAL PERSECUTION
AND FOR SUCH PERIOD OF TIME AS HE DEEMS TO BE NECESSARY FOR SUCH
REASON."  66 STAT. 214, 8 U.S.C. SEC. 1253(H). 

FN2  66 STAT. 195-204, 8 U.S.C. SECS. 1221-1230. 

FN3  66 STAT. 204-219, 8 U.S.C. SECS. 1251-1260. 

FN4  SEE ANALYSIS OF S. 716, 82D CONG., GENERAL COUNSEL, IMMIGRATION
AND NATURALIZATION SERVICE, PP. 39-42. 

FN5  SECTION 212(D)(5):  "THE ATTORNEY GENERAL MAY IN HIS DISCRETION
PAROLE INTO THE UNITED STATES TEMPORARILY UNDER SUCH CONDITIONS AS HE
MAY PRESCRIBE FOR EMERGENT REASONS OR FOR REASONS DEEMED STRICTLY IN
THE PUBLIC INTEREST ANY ALIEN APPLYING FOR ADMISSION TO THE UNITED
STATES, BUT SUCH PAROLE OF SUCH ALIEN SHALL NOT BE REGARDED AS AN
ADMISSION OF THE ALIEN AND WHEN THE PURPOSES OF SUCH PAROLE SHALL, IN
THE OPINION OF THE ATTORNEY GENERAL, HAVE BEEN SERVED THE ALIEN SHALL
FORTHWITH RETURN OR BE RETURNED TO THE CUSTODY FROM WHICH HE WAS
PAROLED AND THEREAFTER HIS CASE SHALL CONTINUE TO BE DEALT WITH IN THE
SAME MANNER AS THAT OF ANY OTHER APPLICANT FOR ADMISSION TO THE UNITED
STATES."  66 STAT. 188, 8 U.S.C.  SEC. 1182(D)(5). 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

THE STATUTORY PROVISION IN CONTROVERSY IS CONTAINED IN SEC. 243(H) OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 212, 214, 8
U.S.C. SEC. 1253(H), WHICH READS: 

"THE ATTORNEY GENERAL IS AUTHORIZED TO WITHHOLD DEPORTATION OF ANY
ALIEN WITHIN THE UNITED STATES TO ANY COUNTRY IN WHICH IN HIS OPINION
THE ALIEN WOULD BE SUBJECT TO PHYSICAL PERSECUTION AND FOR SUCH PERIOD
OF TIME AS HE DEEMS TO BE NECESSARY FOR SUCH REASON." 

THE ALIEN WHO IS PHYSICALLY PRESENT IN THIS COUNTRY IS ABOUT TO BE
SENT TO COMMUNIST CHINA - A COUNTRY WHICH THE IMMIGRATION AND
NATURALIZATION SERVICE ITSELF HAS TOLD US IS INHOSPITABLE TO
REFUGEES.* 

*THE IMMIGRATION AND NATURALIZATION SERVICE ANNOUNCED ON OCTOBER 31,
1956, A POLICY OF GRANTING STAYS OF DEPORTATION FOR THOSE HEADED BACK
TO RED CHINA.  IN THAT CONNECTION IT STATED: 

"OFFICIAL NOTICE MAY BE TAKEN THAT THE CHINA MAINLAND IS UNDER THE
CONTROL OF A DE FACTO COMMUNIST GOVERNMENT.  AS IN OTHER COMMUNIST
STATES, THIS GOVERNMENT OPERATES AS A TOTALITARIAN DICTATORSHIP,
SUPPRESSING PERSONAL LIBERTIES AND IMPOSING ARBITRARY RESTRAINTS ON THE
PEOPLE WHEN NECESSARY TO MAINTAIN ITS AUTHORITY OR SECURE ITS
OBJECTIVES.  ITS METHODS FOR IMPOSING ITS WILL INCLUDE PERSECUTION OF
INDIVIDUALS AND GROUPS BY WAY OF ECONOMIC SANCTIONS, CORPORAL
PUNISHMENT, INCARCERATION, AND EXECUTION. 

"WHILE IT CAN BE ACCEPTED AS A GENERAL PROPOSITION THAT THE PEIPING
GOVERNMENT AT TIMES ENGAGES IN THESE FORMS OF PERSECUTION TO FURTHER
ITS AUTHORITARIAN ENDS, NO RELIABLE INFORMATION HAS YET BEEN MADE
AVAILABLE TO THIS SERVICE TO INDICATE WHETHER SUCH PERSECUTION IS
DIRECTED INDISCRIMINATELY AGAINST THE POPULACE AS A WHOLE OR WHETHER IT
IS EMPLOYED ON A SELECTIVE BASIS AGAINST PARTICULAR ELEMENTS.  IT IS
NOT KNOWN TO WHAT EXTENT OR TO WHAT DEGREE SUCH FACTORS AS PERSONAL
POLITICAL BELIEFS OR RELIGIOUS VIEWS, IN THEMSELVES, ARE NOTICED OR
ACTED UPON BY THE COMMUNIST AUTHORITIES.  ANOTHER UNKNOWN FACTOR IS
WHETHER PRIOR PRESENCE IN THE UNITED STATES HAS ANY BEARING ON THE KIND
OF TREATMENT ACCORDED BY THE COMMUNIST AUTHORITIES TO A CHINESE
NATIONAL UPON HIS RETURN TO THE MAINLAND, DESPITE THE FACT THAT THERE
IS EVIDENCE INDICATING STRONG AND CONTINUED EFFORTS ON THE PART OF
THESE SAME AUTHORITIES TO PERSUADE THEIR OVERSEAS NATIONALS TO RE
ESTABLISH THEMSELVES AND THEIR RESIDENCE WITHIN COMMUNIST CHINA.  THESE
AND OTHER SPECIFIC CONSIDERATIONS BEARING ON THE QUESTION OF PHYSICAL
PERSECUTION AS PRACTICED ON THE CHINA MAINLAND TODAY ARE MATTERS WHICH
AWAIT FURTHER INQUIRY AND TO WHICH AN ANSWER MAY BE PROVIDED THROUGH
THE COLLATION OF INTELLIGENCE MATERIAL BEING GATHERED BY OTHER AGENCIES
OF THE UNITED STATES GOVERNMENT."  IN RE LEE SUNG, NO. A-7921505. 

THE QUESTION FOR US IS NOT WHETHER SHE SHOULD OR SHOULD NOT BE
RETURNED TO CHINA.  IT IS WHETHER THE ATTORNEY GENERAL HAS DISCRETION
TO WITHHOLD HER DEPORTATION IF IN HIS OPINION SHE WOULD BE "SUBJECT TO
PHYSICAL PERSECUTION" WERE SHE RETURNED TO THAT COUNTRY. 

THIS ALIEN IS NOT IN CUSTODY AT OUR BORDER.  SHE IS HERE ON PAROLE. 
THE AUTHORITY TO PAROLE IS CONTAINED IN SEC. 212(D)(5) OF THE ACT - THE
ATTORNEY GENERAL MAY "IN HIS DISCRETION" PAROLE AN ALIEN "INTO THE
UNITED STATES."  HOW AN ALIEN CAN BE PAROLED "INTO THE UNITED STATES"
AND YET NOT BE "WITHIN THE UNITED STATES" REMAINS A MYSTERY.    OF
COURSE IF WE HAD THE PROBLEM OF KAPLAN V. TOD, 267 U.S. 228, DIFFERENT
CONSIDERATIONS WOULD COME INTO PLAY.  THERE AN ALIEN ON PAROLE SOUGHT
TO HAVE HER YEARS HERE USED TO GAIN HERSELF CITIZENSHIP. 
ALTERNATIVELY, SHE ARGUED THAT THE STATUTE HAD RUN ON HER DEPORTATION
SINCE HER PAROLE WAS AN "ENTRY." 

NO SUCH ENLARGEMENT OF THE PREROGATIVES OF A PAROLEE IS SOUGHT HERE. 
THIS ALIEN SEEKS NOT CITIZENSHIP, NOT RESIDENCE, BUT ONLY THE SHELTER
OF A PROVISION OF THE LAW DESIGNED TO PROTECT SUCH REFUGEES FROM THE
FATE OF "PHYSICAL PERSECUTION."  SHE ONLY REQUESTS THAT SHE BE ELIGIBLE
TO BE CONSIDERED BY THE ATTORNEY GENERAL AS A BENEFICIARY OF THIS
HUMANE PROVISION OF OUR LAW.  ONLY A HOSTILE READING CAN DENY HER THAT
RESPITE. 

I WOULD NOT READ THE LAW NARROWLY TO MAKE IT THE DUTY OF OUR
OFFICIALS TO SEND THIS ALIEN AND THE OTHERS IN THE COMPANION CASE TO
WHAT MAY BE PERSECUTION OR DEATH.  TECHNICALITIES NEED NOT ENMESH US.
THE SPIRIT OF THE LAW PROVIDES THE TRUE GUIDE.  IT MAKES PLAIN, I
THINK, THAT THIS CASE IS ONE OF THOSE WHERE THE ATTORNEY GENERAL IS
AUTHORIZED TO SAVE A HUMAN BEING FROM PERSECUTION IN A COMMUNIST LAND. 

..END :







ROGERS V. QUAN 357 U.S. 193 


NO. 396.  ARGUED MAY 20, 1958 - DECIDED JUNE 16, 1958 - 101 U.S. APP.
D.C. 229, 248 F.2D 89, REVERSED. 


RESPONDENTS, NATIVES OF CHINA, CAME TO THE UNITED STATES BETWEEN 1949
AND 1954, SEEKING ADMISSION.   ALL WERE PAROLED IN THE UNITED STATES
BUT HAVE BEEN ORDERED EXCLUDED.  THEY APPLIED FOR STAYS OF DEPORTATION
UNDER SEC. 243(H) OF THE IMMIGRATION AND NATIONALITY ACT, ON THE GROUND
THAT THEIR DEPORTATION TO CHINA WOULD SUBJECT THEM TO PHYSICAL
PERSECUTION AT THE HANDS OF THE EXISTING GOVERNMENT.  THE STAYS WERE
DENIED, AND THEY SUED FOR JUDGMENTS DECLARING THEIR NONDEPORTABILITY TO
CHINA, DIRECTING CONSIDERATION OF THEIR CLAIMS UNDER SEC. 243(H), AND
RESTRAINING THE ATTORNEY GENERAL FROM DEPORTING THEM.  HELD: 

1.  THEIR RELEASE ON PAROLE DID NOT ALTER THEIR STATUS AS EXCLUDED
ALIENS; THEY WERE NOT "WITHIN THE UNITED STATES," WITHIN THE MEANING OF
SEC. 243(H); AND THUS THEY WERE NOT ELIGIBLE FOR THE BENEFITS OF THAT

2.  DEPORTATION AUTHORITY UNDER THE TWO EXCLUSION SECTIONS, SEC. 237
OF THE IMMIGRATION AND NATIONALITY ACT AND SEC. 18 OF THE IMMIGRATION
ACT OF 1917, IS NOT CONFINED TO SITUATIONS WHERE DEPORTATION IS
IMMEDIATE.  PP. 194-196. 

3.  REGARDLESS OF WHICH OF THE TWO EXCLUSION SECTIONS, SEC. 237(A) OF
THE 1952 ACT OR SEC. 18 OF THE 1917 ACT, PROVIDES THE BASIS FOR
RESPONDENTS' DEPORTATION, THEIR APPLICATIONS FOR STAYS WERE ALL FILED
SUBSEQUENT TO THE 1952 ACT AND MUST BE DETERMINED BY THAT ACT.  P.
196. 

ROGERS, ATTORNEY GENERAL, V. QUAN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO LENG MAY MA V. BARBER, DECIDED TODAY,
ANTE, P. 185.  THE FIVE RESPONDENTS ARE NATIVES OF CHINA WHO CAME TO
THE UNITED STATES SEEKING ADMISSION BETWEEN 1949 AND 1954, FOUR OF THEM
ARRIVING BEFORE THE EFFECTIVE DATE OF THE IMMIGRATION AND NATIONALITY
ACT.  LIKE PETITIONER IN LENG MAY MA, ALL WERE PAROLED INTO THE UNITED
STATES, AND ALL HAVE BEEN ORDERED EXCLUDED.  THEY APPLIED FOR STAYS OF
DEPORTATION UNDER SEC. 243(H) OF THE IMMIGRATION AND NATIONALITY ACT,
(FN1) AND UPON REFUSAL, FILED COMPLAINTS IN THE DISTRICT COURT SEEKING
JUDGMENTS DECLARING THEIR NONDEPORTABILITY TO CHINA, DIRECTING
CONSIDERATION OF THEIR CLAIMS UNDER SEC. 243(H), AND RESTRAINING THE
ATTORNEY GENERAL FROM DEPORTING THEM.  THE COMPLAINTS WERE DISMISSED BY
THE DISTRICT COURT, BUT THE COURT OF APPEALS HELD THAT EXCLUDED ALIENS
ON PAROLE ARE "WITHIN THE UNITED STATES" FOR PURPOSES OF SEC. 243(H). 
101 U.S. APP. D.C. 229, 248 F.2D 89.  BECAUSE OF THE CONFLICT WITH THE
NINTH CIRCUIT'S DECISION IN LENG MAY MA, WE GRANTED CERTIORARI.  355
U.S. 861 (1957).  WE HAVE CONCLUDED THAT RESPONDENTS, LIKE PETITIONER
IN LENG MAY MA, ARE INELIGIBLE FOR STAYS OF DEPORTATION UNDER SEC.
243(H).  HOWEVER, BECAUSE OF THE IMPORTANCE OF THIS PROBLEM IN THE
ADMINISTRATION OF THE IMMIGRATION LAWS, WE DEEM IT APPROPRIATE TO DEAL
SPECIFICALLY WITH A CONTENTION NOT DIRECTLY ASSERTED BY PETITIONER IN
LENG MAY MA. 

THE DEPORTATION OF EXCLUDED ALIENS UNDER THE IMMIGRATION AND
NATIONALITY ACT IS AUTHORIZED IN SEC. 237(A) OF CHAPTER 4, WHEREIN IT
IS PROVIDED THAT AN ALIEN EXCLUDED UNDER THE ACT "SHALL BE IMMEDIATELY
DEPORTED TO THE COUNTRY WHENCE HE CAME  ...  ."  66 STAT. 201, 8 U.S.C.
SEC. 1227(A).  A SIMILAR PROVISION EXISTED IN THE IMMEDIATE
PREDECESSOR TO SEC. 237(A), WHICH WAS SEC. 18 OF THE IMMIGRATION ACT OF
1917.  (FN2)  DEPORTATION IN EXPULSION PROCEEDINGS IS SEPARATELY
PROVIDED FOR UNDER THE PRESENT ACT IN SEC. 243 OF CHAPTER 5, SUBSECTION
(H) OF WHICH, OF COURSE, CONTAINS THE AUTHORITY WHICH RESPONDENTS SEEK
TO INVOKE IN THIS CASE.  66 STAT. 212, 8 U.S.C. SEC. 1253.  LIKE
AUTHORITY EXISTED IN THE IMMEDIATE PREDECESSOR OF SEC. 243, WHICH WAS
SEC. 20 OF THE IMMIGRATION ACT OF 1917, 39 STAT. 890, AS AMENDED BY
SEC. 23 OF THE INTERNAL SECURITY ACT OF 1950, 64 STAT. 1010. 

RESPONDENTS ASSERT, HOWEVER, THAT NEITHER SEC. 237(A) NOR ITS
PREDECESSOR, SEC. 18 OF THE 1917 ACT, IS THE BASIS FOR THEIR
DEPORTATION SINCE THEY WERE NOT "IMMEDIATELY" DEPORTED AS REQUIRED IN
THE SECTIONS.  HENCE, THEY ARGUE THAT DEPORTATION MUST REST UPON SEC.
243 OF THE PRESENT ACT, AS TO THE RESPONDENT WHO ARRIVED AFTER THE
IMMIGRATION AND NATIONALITY ACT, AND ITS PREDECESSOR, SEC. 20 OF THE
1917 ACT, AS TO THE FOUR WHO ARRIVED PRIOR TO THE PRESENT ACT. 

WE WILL ASSUME, FOR PURPOSE OF ANALYSIS, THAT FOUR OF THE FIVE
RESPONDENTS ARE, AS THEY CLAIM, DEPORTABLE ONLY UNDER PRIOR ACTS BY
VIRTUE OF THEIR EARLY ARRIVAL.  HOWEVER, UNDER NEITHER OF THE EXCLUSION
ACT, IS THE DEPORTATION AUTHORITY CONFINED, AS RESPONDENTS CONTEND, TO
THOSE SITUATIONS WHERE DEPORTATION IS IMMEDIATE.  NEITHER SECTION, WHEN
READ IN ITS ENTIRETY AND IN CONTEXT, FAIRLY SUGGESTS ANY SUCH
LIMITATION.  NOR ARE THERE REASONS OF POLICY TO COMPEL SUCH A RESULT. 
AS THE DESIRE TO REMAIN INCREASES, THOSE KNOCKING ON OUR DOORS QUITE
NATURALLY BECOME MORE LITIGIOUS, AND CONTESTED DEPARTURES OFTEN INVOLVE
LONG DELAYS.  WE DOUBT THAT THE CONGRESS INTENDED THE MERE FACT OF
DELAY TO IMPROVE AN ALIEN'S STATUS FROM THAT OF ONE SEEKING ADMISSION
TO THAT OF ONE LEGALLY CONSIDERED WITHIN THE UNITED STATES.  WE
CONCLUDE THAT THERE IS AMPLE BASIS UNDER SEC. 237(A) AND SEC. 18 OF THE
1917 ACT TO DEPORT RESPONDENTS; WE NEED NOT DRAW UPON THE PROVISIONS IN
SEC. 243 OF THE PRESENT ACT OR SEC. 20 OF THE 1917 ACT. 

REGARDLESS OF WHICH OF THE TWO EXCLUSION SECTIONS, SEC. 237(A) OF THE
1952 ACT OR SEC. 18 OF THE 1917 ACT, PROVIDES THE BASIS FOR
RESPONDENTS' DEPORTATION, THE APPLICATIONS FOR STAYS WERE ALL FILED
SUBSEQUENT TO THE 1952 ACT AND HENCE MUST BE DETERMINED BY THAT ACT. 
FOR REASONS EXPLAINED IN LENG MAY MA, SEC. 243(H) IS UNAVAILABLE TO
EXCLUDED ALIENS, AND THE FACT OF PAROLE CREATES NO VARIANCE FROM THIS
PRINCIPLE.  REVERSED. 

FN1  SECTION 243(H):  "THE ATTORNEY GENERAL IS AUTHORIZED TO WITHHOLD
DEPORTATION OF ANY ALIEN WITHIN THE UNITED STATES TO ANY COUNTRY IN
WHICH IN HIS OPINION THE ALIEN WOULD BE SUBJECT TO PHYSICAL PERSECUTION
AND FOR SUCH PERIOD OF TIME AS HE DEEMS TO BE NECESSARY FOR SUCH
REASON."  66 STAT. 214, 8 U.S.C. SEC. 1253(H). 

FN2  SECTION 18:  "ALL ALIENS BROUGHT TO THIS COUNTRY IN VIOLATION OF
LAW SHALL BE IMMEDIATELY SENT BACK  ...  ."  39 STAT. 887. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR.
JUSTICE BRENNAN DISSENT FOR THE REASONS STATED IN THE DISSENTING
OPINION IN LENG MAY MA V. BARBER, ANTE, P. 190. 
..END :




















SOCIETE INTERNATIONALE POUR PARTICIPATIONS INDUSTRIELLES ET
COMMERCIALES, S.A. V. ROGERS 357 U.S. 197 


NO. 348.  ARGUED MAY 1, 1958 - DECIDED JUNE 16, 1958 - 100 U.S. APP.
D.C. 148, 243 F.2D 254, REVERSED AND CAUSE REMANDED. 


IN A SUIT UNDER SEC. 9(A) OF THE TRADING WITH THE ENEMY ACT BROUGHT BY
PETITIONER, A SWISS HOLDING COMPANY, FOR THE RETURN OF PROPERTY SEIZED
BY THE ALIEN PROPERTY CUSTODIAN UNDER SEC. 5(B), THE DISTRICT COURT
ORDERED PETITIONER TO PRODUCE CERTAIN RECORDS OF PETITIONER'S SWISS
BANK.  THE COURT FOUND THE RECORDS TO BE RELEVANT AND TO BE WITHIN
PETITIONER'S "CONTROL," WITHIN THE MEANING OF RULE 34 OF THE FEDERAL
RULES OF CIVIL PROCEDURE.  THE RECORDS WERE NOT PRODUCED, ON THE
GROUNDS THAT THEIR PRODUCTION WOULD VIOLATE SWISS PENAL LAWS AND THAT
AN ORDER PROHIBITING THEIR PRODUCTION HAD BEEN MADE BY THE SWISS
FEDERAL ATTORNEY.  THE DISTRICT COURT RULED THAT, UNLESS FULL
PRODUCTION WERE MADE, THE COMPLAINT WOULD BE DISMISSED.  DURING FURTHER
LENGTHY PROCEEDINGS, PETITIONER PRODUCED OVER 190,000 DOCUMENTS BUT WAS
UNABLE FULLY TO SATISFY THE COURT'S ORDER.  THE DISTRICT COURT FOUND
THAT PETITIONER HAD SHOWN GOOD FAITH IN ITS EFFORTS TO COMPLY WITH THE
PRODUCTION ORDER; BUT IT CONCLUDED THAT, APART FROM SWISS LAW,
PETITIONER HAD CONTROL OVER ITS BANK'S RECORDS, THAT SUCH RECORDS MIGHT
PROVE TO BE CRUCIAL IN THE OUTCOME OF THE LITIGATION, AND THAT SWISS
LAW DID NOT FURNISH AN ADEQUATE EXCUSE FOR FAILURE TO PRODUCE THEM. 
ACCORDINGLY, IT DISMISSED THE COMPLAINT WITH PREJUDICE.  THE COURT OF
APPEALS AFFIRMED.  HELD:  ON THE RECORD, DISMISSAL OF THE COMPLAINT
WITH PREJUDICE WAS NOT JUSTIFIED; THE JUDGMENT IS REVERSED; AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS.  PP. 198-213. 

(1)  IN THIS INSTANCE, ACCOMMODATION OF RULE 34 OF THE FEDERAL RULES
OF CIVIL PROCEDURE TO THE POLICIES UNDERLYING THE TRADING WITH THE
ENEMY ACT JUSTIFIED THE ACTION OF THE DISTRICT COURT IN ISSUING THE
PRODUCTION ORDER, NOTWITHSTANDING PETITIONER'S CLAIM THAT SWISS LAW,
BACKED BY CRIMINAL SANCTIONS, PREVENTED PETITIONER FROM HAVING
"CONTROL" OF THE RECORDS WITHIN THE MEANING OF RULE 34.  PP. 204-206. 

(2)  WHETHER A FEDERAL DISTRICT COURT HAS POWER TO DISMISS A
COMPLAINT BECAUSE OF FAILURE OF THE PLAINTIFF TO COMPLY WITH A
PRODUCTION ORDER DEPENDS EXCLUSIVELY UPON RULE 37(B), WHICH ADDRESSES
ITSELF WITH PARTICULARITY TO THE CONSEQUENCES OF A FAILURE TO MAKE
DISCOVERY BY LISTING A VARIETY OF REMEDIES WHICH A COURT MAY EMPLOY. 
THE RULE MAKES NO REAL DISTINCTION BETWEEN "FAILURE" TO COMPLY AND
"REFUSAL" TO OBEY.  PP. 206-208. 

(3)  ON THE RECORD IN THIS CASE, DISMISSAL OF THE COMPLAINT WITH
PREJUDICE WAS NOT JUSTIFIED, IN VIEW OF THE FINDINGS BELOW AS TO
PETITIONER'S GOOD FAITH AND EFFORTS TO COMPLY WITH THE PRODUCTION
ORDER, AND IN VIEW OF CONSTITUTIONAL CONSIDERATIONS WHICH BEAR ON THIS
QUESTION.  PP. 208-213. 

SOCIETE INTERNATIONALE POUR PARTICIPATIONS INDUSTRIELLES ET
COMMERCIALES, S.A., V. ROGERS, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN
PROPERTY CUSTODIAN, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER, IN THE CIRCUMSTANCES OF THIS CASE,
THE DISTRICT COURT ERRED IN DISMISSING, WITH PREJUDICE, A COMPLAINT IN
A CIVIL ACTION AS TO A PLAINTIFF THAT HAD FAILED TO COMPLY FULLY WITH A
PRETRIAL PRODUCTION ORDER. 

THIS ISSUE COMES TO US IN THE CONTEXT OF AN INTRICATE LITIGATION. 
AMENDED, 50 U.S.C. APP. SEC. 5(B), SETS FORTH THE CONDITIONS UNDER
WHICH THE UNITED STATES DURING A PERIOD OF WAR OR NATIONAL EMERGENCY
MAY SEIZE "  ...  ANY PROPERTY OR INTEREST OF ANY FOREIGN COUNTRY OR
NATIONAL  ...  ."  ACTING UNDER THIS SECTION, THE ALIEN PROPERTY
CUSTODIAN DURING WORLD WAR II ASSUMED CONTROL OF ASSETS WHICH WERE
FOUND BY THE CUSTODIAN TO BE "OWNED BY OR HELD FOR THE BENEFIT OF" I.G.
FARBENINDUSTRIE, A GERMAN FIRM AND A THEN ENEMY NATIONAL.  THESE
ASSETS, VALUED AT MORE THAN $100,000,000, CONSISTED OF CASH IN AMERICAN
BANKS AND APPROXIMATELY 90% OF THE CAPITAL STOCK OF GENERAL ANILINE &
FILM CORPORATION, A DELAWARE CORPORATION.  IN 1948 PETITIONER, A SWISS
HOLDING COMPANY ALSO KNOWN AS I.G. CHEMIE OR INTERHANDEL, BROUGHT SUIT
UNDER SEC. 9(A) OF THE TRADING WITH THE ENEMY ACT, 40 STAT. 419, AS
AMENDED, 50 U.S.C. APP. SEC. 9(A), AGAINST THE ATTORNEY GENERAL, AS
SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, AND THE TREASURER OF THE
UNITED STATES, TO RECOVER THESE ASSETS.  THIS SECTION AUTHORIZES
RECOVERY OF SEIZED ASSETS BY "ANY PERSON NOT AN ENEMY OR ALLY OF ENEMY"
TO THE EXTENT OF SUCH PERSON'S INTEREST IN THE ASSETS.  PETITIONER
CLAIMED THAT IT HAD OWNED THE GENERAL ANILINE STOCK AND CASH AT THE
TIME OF VESTING AND HENCE, AS THE NATIONAL OF A NEUTRAL POWER, WAS
ENTITLED UNDER SEC. 9(A) TO RECOVERY. 

THE GOVERNMENT BOTH CHALLENGED PETITIONER'S CLAIM OF OWNERSHIP AND
ASSERTED THAT IN ANY EVENT PETITIONER WAS AN "ENEMY" WITHIN THE MEANING
OF THE ACT SINCE IT WAS INTIMATELY CONNECTED WITH I.G. FARBEN AND HENCE
WAS AFFECTED WITH "ENEMY TAINT" DESPITE ITS "NEUTRAL" INCORPORATION. 
SEE UEBERSEE FINANZ-KORP.  V. MCGRATH, 343 U.S. 205.  MORE
PARTICULARLY, THE GOVERNMENT ALLEGED THAT FROM THE TIME OF ITS
INCORPORATION IN 1928, PETITIONER HAD CONSPIRED WITH I.G. FARBEN, H.
STURZENEGGER & CIE, A SWISS BANKING FIRM, AND OTHERS "TO CONCEAL,
CAMOUFLAGE AND CLOAK THE OWNERSHIP, CONTROL AND DOMINATION BY I.G.
FARBEN OF PROPERTIES AND INTERESTS LOCATED IN COUNTRIES, INCLUDING THE
UNITED STATES, OTHER THAN GERMANY, IN ORDER TO AVOID SEIZURE AND
CONFISCATION IN THE EVENT OF WAR BETWEEN SUCH COUNTRIES AND GERMANY." 

AT AN EARLY STAGE OF THE LITIGATION THE GOVERNMENT MOVED UNDER RULE
34 OF THE FEDERAL RULES OF CIVIL PROCEDURE FOR AN ORDER REQUIRING
PETITIONER TO MAKE AVAILABLE FOR INSPECTION AND COPYING A LARGE NUMBER
OF THE BANKING RECORDS OF STURZENEGGER & CIE.  RULE 34, IN CONJUNCTION
WITH RULE 26(B), PROVIDES THAT UPON A MOTION "SHOWING GOOD CAUSE
THEREFOR," A COURT MAY ORDER A PARTY TO PRODUCE FOR INSPECTION
NONPRIVILEGED DOCUMENTS RELEVANT TO THE SUBJECT MATTER OF PENDING
LITIGATION "  ... WHICH ARE IN HIS POSSESSION, CUSTODY, OR CONTROL  ...
."  IN SUPPORT OF ITS MOTION THE GOVERNMENT ALLEGED THAT THE RECORDS
SOUGHT WERE RELEVANT TO SHOWING THE TRUE OWNERSHIP OF THE GENERAL
ANILINE STOCK AND THAT THEY WERE WITHIN PETITIONER'S CONTROL BECAUSE
PETITIONER AND STURZENEGGER WERE SUBSTANTIALLY IDENTICAL.  PETITIONER
DID NOT DISPUTE THE GENERAL RELEVANCY OF THE STURZENEGGER DOCUMENTS BUT
DENIED THAT IT CONTROLLED THEM.  THE DISTRICT COURT GRANTED THE
GOVERNMENT'S MOTION, HOLDING, AMONG OTHER THINGS, THAT PETITIONER'S
"CONTROL" OVER THE RECORDS HAD BEEN PRIMA FACIE ESTABLISHED. 

THEREAFTER FOLLOWED A NUMBER OF MOTIONS BY PETITIONER TO BE RELIEVED
OF PRODUCTION ON THE GROUND THAT DISCLOSURE OF THE REQUIRED BANK
RECORDS WOULD VIOLATE SWISS PENAL LAWS AND CONSEQUENTLY MIGHT LEAD TO
IMPOSITION OF CRIMINAL SANCTIONS, INCLUDING FINE AND IMPRISONMENT, ON
THOSE RESPONSIBLE FOR DISCLOSURE.  THE GOVERNMENT IN TURN MOVED UNDER
RULE 37(B)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE TO DISMISS THE
COMPLAINT BECAUSE OF PETITIONER'S NONCOMPLIANCE WITH THE PRODUCTION
ORDER.  DURING THIS PERIOD THE SWISS FEDERAL ATTORNEY, DEEMING THAT
DISCLOSURE OF THESE RECORDS IN ACCORDANCE WITH THE PRODUCTION ORDER
WOULD CONSTITUTE A VIOLATION OF ARTICLE 273 OF THE SWISS PENAL CODE,
PROHIBITING ECONOMIC ESPIONAGE, AND ARTICLE 47 OF THE SWISS BANK LAW,
RELATING TO SECRECY OF BANKING RECORDS, "CONFISCATED" THE STURZENEGGER
RECORDS.  THIS "CONFISCATION" LEFT POSSESSION OF THE RECORDS IN
STURZENEGGER AND AMOUNTED TO AN INTERDICTION ON STURZENEGGER'S
TRANSMISSION OF THE RECORDS TO THIRD PERSONS.  THE UPSHOT OF ALL THIS
WAS THAT THE DISTRICT COURT, BEFORE FINALLY RULING ON PETITIONER'S
MOTION FOR RELIEF FROM THE PRODUCTION ORDER AND ON THE GOVERNMENT'S
MOTION TO DISMISS THE COMPLAINT, REFERRED THE MATTER TO A SPECIAL
MASTER FOR FINDINGS AS TO THE NATURE OF THE SWISS LAWS CLAIMED BY
PETITIONER TO BLOCK PRODUCTION AND AS TO PETITIONER'S GOOD FAITH IN
SEEKING TO ACHIEVE COMPLIANCE WITH THE COURT'S ORDER. 

THE REPORT OF THE MASTER BEARS IMPORTANTLY ON OUR DISPOSITION OF THIS
CASE.  IT CONCLUDED THAT THE SWISS GOVERNMENT HAD ACTED IN ACCORDANCE
WITH ITS OWN ESTABLISHED DOCTRINES IN EXERCISING PREVENTIVE POLICE
POWER BY CONSTRUCTIVE SEIZURE OF THE STURZENEGGER RECORDS, AND FOUND
THAT THERE WAS "  ... NO PROOF, OR ANY EVIDENCE AT ALL OF COLLUSION
BETWEEN PLAINTIFF AND THE SWISS GOVERNMENT IN THE SEIZURE OF THE PAPERS
HEREIN."  NOTING THAT THE BURDEN WAS ON PETITIONER TO SHOW GOOD FAITH
IN ITS EFFORTS TO COMPLY WITH THE PRODUCTION ORDER, AND TAKING AS THE
TEST OF GOOD FAITH WHETHER PETITIONER HAD ATTEMPTED ALL WHICH A
REASONABLE MAN WOULD HAVE UNDERTAKEN IN THE CIRCUMSTANCES TO COMPLY
WITH THE ORDER, THE MASTER FOUND THAT "  ...  THE PLAINTIFF HAS
SUSTAINED THE BURDEN OF PROOF PLACED UPON IT AND HAS SHOWN GOOD FAITH
IN ITS EFFORTS TO COMPLY WITH THE PRODUCTION ORDER IN ACCORDANCE WITH
THE FOREGOING TEST." 

THESE FINDINGS OF THE MASTER WERE CONFIRMED BY THE DISTRICT COURT. 
NEVERTHELESS THE COURT, IN FEBRUARY 1953, GRANTED THE GOVERNMENT'S
MOTION TO DISMISS THE COMPLAINT AND FILED AN OPINION WHEREIN IT
CONCLUDED THAT:  (1) APART FROM CONSIDERATIONS OF SWISS LAW PETITIONER
HAD CONTROL OVER THE STURZENEGGER RECORDS; (2) SUCH RECORDS MIGHT PROVE
TO BE CRUCIAL IN THE OUTCOME OF THIS LITIGATION; (3) SWISS LAW DID NOT
FURNISH AN ADEQUATE EXCUSE FOR PETITIONER'S FAILURE TO COMPLY WITH THE
PRODUCTION ORDER, SINCE PETITIONER COULD NOT INVOKE FOREIGN LAWS TO
JUSTIFY DISOBEDIENCE TO ORDERS ENTERED UNDER THE LAWS OF THE FORUM; AND
(4) THAT THE COURT IN THESE CIRCUMSTANCES HAD POWER UNDER RULE
37(B)(2), AS WELL AS INHERENT POWER, TO DISMISS THE COMPLAINT.  111 F.
SUPP. 435.  HOWEVER, IN VIEW OF STATEMENTS BY THE SWISS GOVERNMENT,
FOLLOWING PETITIONER'S INTERCESSION, THAT CERTAIN RECORDS NOT DEEMED TO
VIOLATE THE SWISS LAWS WOULD BE RELEASED, AND IN VIEW OF EFFORTS BY
PETITIONER TO SECURE WAIVERS FROM THOSE PERSONS BANKING WITH THE
STURZENEGGER FIRM WHO WERE PROTECTED BY THE SWISS SECRECY LAWS, AND
HENCE WHOSE WAIVERS MIGHT LEAD THE SWISS GOVERNMENT TO PERMIT
PRODUCTION, THE COURT SUSPENDED THE EFFECTIVE DATE OF ITS DISMISSAL
ORDER FOR A LIMITED PERIOD IN ORDER TO PERMIT PETITIONER TO CONTINUE
EFFORTS TO OBTAIN WAIVERS AND SWISS CONSENT FOR PRODUCTION. 

BY OCTOBER 1953, SOME 63,000 DOCUMENTS HAD BEEN RELEASED BY THIS
PROCESS AND TENDERED THE GOVERNMENT FOR INSPECTION.  NONE OF THE BOOKS
OF ACCOUNT OF STURZENEGGER WERE SUBMITTED, THOUGH PETITIONER WAS
PREPARED TO OFFER PLANS TO THE SWISS GOVERNMENT WHICH HERE TOO MIGHT
HAVE PERMITTED AT LEAST PARTIAL COMPLIANCE.  HOWEVER, SINCE FULL
PRODUCTION APPEARED IMPOSSIBLE, THE DISTRICT COURT IN NOVEMBER 1953
ENTERED A FINAL DISMISSAL ORDER.  THIS ORDER WAS AFFIRMED BY THE COURT
OF APPEALS, WHICH ACCEPTED THE FINDINGS OF THE DISTRICT COURT AS TO THE
RELEVANCY OF THE DOCUMENTS, CONTROL OF THEM BY PETITIONER, AND
PETITIONER'S GOOD-FAITH EFFORTS TO COMPLY WITH THE PRODUCTION ORDER. 
THE COURT FOUND IT UNNECESSARY TO DECIDE WHETHER RULE 37 AUTHORIZED
DISMISSAL UNDER THESE CIRCUMSTANCES SINCE IT RULED THAT THE DISTRICT
COURT WAS EMPOWERED TO DISMISS BOTH BY RULE 41(B) OF THE FEDERAL RULES
OF CIVIL PROCEDURE, AND UNDER ITS OWN "INHERENT POWER."  IT DID,
HOWEVER, MODIFY THE DISMISSAL ORDER TO ALLOW PETITIONER AN ADDITIONAL
SIX MONTHS IN WHICH TO CONTINUE ITS EFFORTS.  96 U.S. APP. D.C.  232,
225 F.2D 532.  WE DENIED CERTIORARI.  350 U.S. 937. 

DURING THIS FURTHER PERIOD OF GRACE, ADDITIONAL DOCUMENTS, WITH THE
CONSENT OF THE SWISS GOVERNMENT AND THROUGH WAIVERS, WERE RELEASED AND
TENDERED FOR INSPECTION, SO THAT BY JULY OF 1956, OVER 190,000
DOCUMENTS HAD BEEN PROCURED.  RECORD BOOKS OF STURZENEGGER WERE OFFERED
FOR EXAMINATION IN SWITZERLAND, SUBJECT TO THE EXPECTED APPROVAL OF THE
SWISS GOVERNMENT, TO THE EXTENT THAT MATERIAL WITHIN THEM WAS COVERED
BY WAIVERS.  FINALLY, PETITIONER PRESENTED THE DISTRICT COURT WITH A
PLAN, ALREADY APPROVED BY THE SWISS GOVERNMENT, WHICH WAS DESIGNED TO
ACHIEVE MAXIMUM COMPLIANCE WITH THE PRODUCTION ORDER: A "NEUTRAL"
EXPERT, WHO MIGHT BE AN AMERICAN, WOULD BE APPOINTED AS INVESTIGATOR
WITH THE CONSENT OF THE PARTIES, DISTRICT COURT, AND SWISS
AUTHORITIES.  AFTER INSPECTION OF THE STURZENEGGER FILES, THIS
INVESTIGATOR WOULD SUBMIT A REPORT TO THE PARTIES IDENTIFYING
DOCUMENTS, WITHOUT VIOLATING SECRECY REGULATIONS, WHICH HE DEEMED TO BE
RELEVANT TO THE LITIGATION.  PETITIONER COULD THEN SEEK TO OBTAIN
FURTHER WAIVERS OR SECURE SUCH DOCUMENTS BY LETTERS ROGATORY OR
ARBITRATION PROCEEDINGS IN SWISS COURTS. 

THE DISTRICT COURT, HOWEVER, REFUSED TO ENTERTAIN THIS PLAN OR TO
INSPECT THE DOCUMENTS TENDERED IN ORDER TO DETERMINE WHETHER THERE HAD
BEEN SUBSTANTIAL COMPLIANCE WITH THE PRODUCTION ORDER.  IT DIRECTED
FINAL DISMISSAL OF THE ACTION.  THE COURT OF APPEALS AFFIRMED, BUT AT
THE SAME TIME OBSERVED:  "THAT PETITIONER AND ITS COUNSEL PATIENTLY AND
DILIGENTLY SOUGHT TO ACHIEVE COMPLIANCE ...  IS NOT TO BE DOUBTED." 
100 U.S. APP. D.C. 148, 149, 243 F.2D 254, 255.  BECAUSE THIS DECISION
RAISED IMPORTANT QUESTIONS AS TO THE PROPER APPLICATION OF THE FEDERAL
RULES OF CIVIL PROCEDURE, WE GRANTED CERTIORARI.  355 U.S. 812. 

                                          I. 

WE CONSIDER FIRST PETITIONER'S CONTENTION THAT THE DISTRICT COURT
ERRED IN ISSUING THE PRODUCTION ORDER BECAUSE THE REQUIREMENT OF RULE
34, THAT A PARTY ORDERED TO PRODUCE DOCUMENTS MUST BE IN "CONTROL" OF
THEM, WAS NOT HERE SATISFIED.  WITHOUT INTIMATING ANY VIEW UPON THE
MERITS OF THE LITIGATION, WE ACCEPT AS AMPLY SUPPORTED BY THE EVIDENCE
THE FINDINGS OF THE TWO COURTS BELOW THAT, APART FROM THE EFFECT OF
SWISS LAW, THE STURZENEGGER DOCUMENTS ARE WITHIN PETITIONER'S CONTROL. 
THE QUESTION THEN BECOMES:  DO THE INTERDICTIONS OF SWISS LAW BAR A
CONCLUSION THAT PETITIONER HAD "CONTROL" OF THESE DOCUMENTS WITHIN THE
MEANING OF RULE 34? 

WE APPROACH THIS QUESTION IN LIGHT OF THE FINDINGS BELOW THAT THE
SWISS PENAL LAWS DID IN FACT LIMIT PETITIONER'S ABILITY TO SATISFY THE
PRODUCTION ORDER BECAUSE OF THE CRIMINAL SANCTIONS TO WHICH THOSE
PRODUCING THE RECORDS WOULD HAVE BEEN EXPOSED.  STILL WE DO NOT VIEW
THIS SITUATION AS FULLY ANALOGOUS TO ONE WHERE DOCUMENTS REQUIRED BY A
PRODUCTION ORDER HAVE CEASED TO EXIST OR HAVE BEEN TAKEN INTO THE
ACTUAL POSSESSION OF A THIRD PERSON NOT CONTROLLED BY THE PARTY ORDERED
TO PRODUCE, AND WITHOUT THAT PARTY'S COMPLICITY.  THE "CONFISCATION" OF
THESE RECORDS BY THE SWISS AUTHORITIES ADDS NOTHING TO THE DIMENSIONS
OF THE PROBLEM UNDER CONSIDERATION, FOR POSSESSION OF THE RECORDS
STAYED WHERE IT WAS AND THE POSSIBILITY OF CRIMINAL PROSECUTION FOR
DISCLOSURE WAS OF COURSE PRESENT BEFORE THE CONFISCATION ORDER WAS
ISSUED. 

IN ITS BROADER SCOPE, THE PROBLEM BEFORE US REQUIRES CONSIDERATION OF
THE POLICIES UNDERLYING THE TRADING WITH THE ENEMY ACT.  IF PETITIONER
CAN PROVE ITS RECORD TITLE TO GENERAL ANILINE STOCK, IT CERTAINLY IS
OPEN TO THE GOVERNMENT TO SHOW THAT PETITIONER ITSELF IS THE CAPTIVE OF
INTERESTS WHOSE DIRECT OWNERSHIP WOULD BAR RECOVERY.  THIS POSSIBILITY
OF ENEMY TAINT OF NATIONALS OF NEUTRAL POWERS, PARTICULARLY OF HOLDING
COMPANIES WITH INTRICATE FINANCIAL STRUCTURES, WHICH ASSERTED RIGHTS TO
AMERICAN ASSETS WAS OF DEEP CONCERN TO THE CONGRESS WHEN IT BROADENED
THE TRADING WITH THE ENEMY ACT IN 1941 "  ...  TO REACH ENEMY INTERESTS
WHICH MASQUERADED UNDER THOSE INNOCENT FRONTS."  CLARK V. UEBERSEE
FINANZ-KORP., 332 U.S. 480, 485.  SEE ADMINISTRATION OF THE WARTIME
FINANCIAL AND PROPERTY CONTROLS OF THE UNITED STATES GOVERNMENT,
TREASURY DEPARTMENT (1942), PP. 29-30; H.R. REP. NO. 2398, 79TH CONG.,
2D SESS. 3. 

IN VIEW OF THESE CONSIDERATIONS, TO HOLD BROADLY THAT PETITIONER'S
FAILURE TO PRODUCE THE STURZENEGGER RECORDS BECAUSE OF FEAR OF
PUNISHMENT UNDER THE LAWS OF ITS SOVEREIGN PRECLUDES A COURT FROM
FINDING THAT PETITIONER HAD "CONTROL" OVER THEM, AND THEREBY FROM
ORDERING THEIR PRODUCTION, WOULD UNDERMINE CONGRESSIONAL POLICIES MADE
EXPLICIT IN THE 1941 AMENDMENTS, AND INVITE EFFORTS TO PLACE OWNERSHIP
OF AMERICAN ASSETS IN PERSONS OR FIRMS WHOSE SOVEREIGN ASSURES SECRECY
OF RECORDS.  THE DISTRICT COURT HERE CONCLUDED THAT THE STURZENEGGER
RECORDS MIGHT HAVE A VITAL INFLUENCE UPON THIS LITIGATION INSOFAR AS
THEY SHED LIGHT UPON PETITIONER'S CONFUSED BACKGROUND.  PETITIONER IS
IN A MOST ADVANTAGEOUS POSITION TO PLEAD WITH ITS OWN SOVEREIGN FOR
RELAXATION OF PENAL LAWS OR FOR ADOPTION OF PLANS WHICH WILL AT THE
LEAST ACHIEVE A SIGNIFICANT MEASURE OF COMPLIANCE WITH THE PRODUCTION
ORDER, AND INDEED TO THAT END IT HAS ALREADY MADE SIGNIFICANT
PROGRESS.  UNITED STATES COURTS SHOULD BE FREE TO REQUIRE CLAIMANTS OF
SEIZED ASSETS WHO FACE LEGAL OBSTACLES UNDER THE LAWS OF THEIR OWN
COUNTRIES TO MAKE ALL SUCH EFFORTS TO THE MAXIMUM OF THEIR ABILITY
WHERE THE REQUESTED RECORDS PROMISE TO BEAR OUT OR DISPEL ANY DOUBT THE
GOVERNMENT MAY INTRODUCE AS TO TRUE OWNERSHIP OF THE ASSETS. 

WE DO NOT SAY THAT THIS RULING WOULD APPLY TO EVERY SITUATION WHERE A
PARTY IS RESTRICTED BY LAW FROM PRODUCING DOCUMENTS OVER WHICH IT IS
OTHERWISE SHOWN TO HAVE CONTROL.  RULE 34 IS SUFFICIENTLY FLEXIBLE TO
BE ADAPTED TO THE EXIGENCIES OF PARTICULAR LITIGATION.  THE PROPRIETY
OF THE USE TO WHICH IT IS PUT DEPENDS UPON THE CIRCUMSTANCES OF A GIVEN
CASE, AND WE HOLD ONLY THAT ACCOMMODATION OF THE RULE IN THIS INSTANCE
TO THE POLICIES UNDERLYING THE TRADING WITH THE ENEMY ACT JUSTIFIED THE
ACTION OF THE DISTRICT COURT IN ISSUING THIS PRODUCTION ORDER. 

                   II. 

WE CONSIDER NEXT THE SOURCE OF THE AUTHORITY OF A DISTRICT COURT TO
DISMISS A COMPLAINT FOR FAILURE OF A PLAINTIFF TO COMPLY WITH A
PRODUCTION ORDER.  THE DISTRICT COURT FOUND POWER TO DISMISS UNDER RULE
37(B)(2)(III) OF THE FEDERAL RULES OF CIVIL PROCEDURE AS WELL AS IN THE
GENERAL EQUITY POWERS OF A FEDERAL COURT.  THE COURT OF APPEALS CHOSE
NOT TO RELY UPON RULE 37, BUT RESTED SUCH POWER ON RULE 41(B) AND ON
THE DISTRICT COURT'S INHERENT POWER. 

RULE 37 DESCRIBED THE CONSEQUENCES OF A REFUSAL TO MAKE DISCOVERY. 
SUBSECTION (B), WHICH IS ENTITLED "FAILURE TO COMPLY WITH ORDER,"
PROVIDES IN PERTINENT PART: 

"(2)  ...  IF ANY PARTY  ...  REFUSES TO OBEY  ...  AN ORDER MADE
UNDER RULE 34 TO PRODUCE ANY DOCUMENT OR OTHER THING FOR INSPECTION
...  , THE COURT MAY MAKE SUCH ORDERS IN REGARD TO THE REFUSAL AS ARE
JUST, AND AMONG OTHERS THE FOLLOWING: 

     *         *         *         *  * 

"(III)  AN ORDER STRIKING OUT PLEADINGS OR PARTS THEREOF  ...  , OR
DISMISSING THE ACTION OR PROCEEDING OR ANY PART THEREOF  ...  ." 

RULE 41(B) IS CONCERNED WITH INVOLUNTARY DISMISSALS AND READS IN
PART:  "FOR FAILURE OF THE PLAINTIFF TO PROSECUTE OR TO COMPLY WITH
THESE RULES OR ANY ORDER OF COURT, A DEFENDANT MAY MOVE FOR DISMISSAL
OF AN ACTION OR OF ANY CLAIM AGAINST HIM." 

IN OUR OPINION, WHETHER A COURT HAS POWER TO DISMISS A COMPLAINT
BECAUSE OF NONCOMPLIANCE WITH A PRODUCTION ORDER DEPENDS EXCLUSIVELY
UPON RULE 37, WHICH ADDRESSES ITSELF WITH PARTICULARITY TO THE
CONSEQUENCES OF A FAILURE TO MAKE DISCOVERY BY LISTING A VARIETY OF
REMEDIES WHICH A COURT MAY EMPLOY AS WELL AS BY AUTHORIZING ANY ORDER
WHICH IS "JUST."  THERE IS NO NEED TO RESORT TO RULE 41(B), WHICH
APPEARS IN THAT PART OF THE RULES CONCERNED WITH TRIALS AND WHICH LACKS
SUCH SPECIFIC REFERENCES TO DISCOVERY.  FURTHER, THAT RULE IS ON ITS
FACE APPROPRIATE ONLY AS A DEFENDANT'S REMEDY, WHILE RULE 37 PROVIDES
MORE EXPANSIVE COVERAGE BY COMPREHENDING DISOBEDIENCE OF PRODUCTION
ORDERS BY ANY PARTY.  RELIANCE UPON RULE 41, WHICH CANNOT EASILY BE
INTERPRETED TO AFFORD A COURT MORE EXPANSIVE POWERS THAN DOES RULE 37,
OR UPON "INHERENT POWER," CAN ONLY OBSCURE ANALYSIS OF THE PROBLEM
BEFORE US.  SEE GENERALLY ROSENBERG, SANCTIONS TO EFFECTUATE PRETRIAL
DISCOVERY, 58 COL. L. REV. 480. 

IT MAY BE THAT THE COURT OF APPEALS INVOKED RULE 41(B), WHICH USES THE
WORD "FAILURE," AND HESITATED TO DRAW UPON RULE 37(B) BECAUSE OF DOUBT
THAT RULE 37 WOULD COVER THIS SITUATION SINCE IT APPLIES ONLY WHERE A
PARTY "REFUSES TO OBEY."  PETITIONER HAS URGED THAT THE WORD "REFUSES"
IMPLIES WILLFULNESS AND THAT IT SIMPLY FAILED AND DID NOT REFUSE TO
OBEY SINCE IT WAS NOT IN WILLFUL DISOBEDIENCE.  BUT THIS ARGUMENT TURNS
ON TOO FINE A LITERALISM AND UNDULY ACCENTS CERTAIN DISTINCTIONS FOUND
IN THE LANGUAGE OF THE VARIOUS SUBSECTIONS OF RULE 37.  (FN1)  INDEED
SUBSECTION (B), AS NOTED ABOVE, IS ITSELF ENTITLED "FAILURE TO COMPLY
WITH ORDER."  FOR PURPOSES OF SUBDIVISION (B)(2) OF RULE 37, WE THINK
THAT A PARTY "REFUSES TO OBEY" SIMPLY BY FAILING TO COMPLY WITH AN
ORDER.  SO CONSTRUED THE RULE ALLOWS A COURT ALL THE FLEXIBILITY IT
MIGHT NEED IN FRAMING AN ORDER APPROPRIATE TO A PARTICULAR SITUATION. 
WHATEVER ITS REASONS, PETITIONER DID NOT COMPLY WITH THE PRODUCTION
ORDER.  SUCH REASONS, AND THE WILLFULNESS OR GOOD FAITH OF PETITIONER,
CAN HARDLY AFFECT THE FACT OF NONCOMPLIANCE AND ARE RELEVANT ONLY TO
THE PATH WHICH THE DISTRICT COURT MIGHT FOLLOW IN DEALING WITH
PETITIONER'S FAILURE TO COMPLY. 

                                        III. 

WE TURN TO THE REMAINING QUESTION, WHETHER THE DISTRICT COURT
PROPERLY EXERCISED ITS POWERS UNDER RULE 37(B) BY DISMISSING THIS
COMPLAINT DESPITE THE FINDINGS THAT PETITIONER HAD NOT BEEN IN
COLLUSION WITH THE SWISS AUTHORITIES TO BLOCK INSPECTION OF THE
STURZENEGGER RECORDS, AND HAD IN GOOD FAITH MADE DILIGENT EFFORTS TO
EXECUTE THE PRODUCTION ORDER. 

WE MUST DISCARD AT THE OUTSET THE STRONGLY URGED CONTENTION OF THE
GOVERNMENT THAT DISMISSAL OF THIS ACTION WAS JUSTIFIED BECAUSE
PETITIONER CONSPIRED WITH I.G. FARBEN, STURZENEGGER & CIE, AND OTHERS
TO TRANSFER OWNERSHIP OF GENERAL ANILINE TO IT PRIOR TO 1941 SO THAT
SEIZURE WOULD BE AVOIDED AND ADVANTAGE TAKEN OF SWISS SECRECY LAWS.  IN
OTHER WORDS, THE GOVERNMENT SUGGESTS THAT PETITIONER STANDS IN THE
POSITION OF ONE WHO DELIBERATELY COURTED LEGAL IMPEDIMENTS TO
PRODUCTION OF THE STURZENEGGER RECORDS, AND WHO THUS CANNOT NOW BE
HEARD TO ASSERT ITS GOOD FAITH AFTER THIS EXPECTATION WAS REALIZED. 
CERTAINLY THESE CONTENTIONS, IF SUPPORTED BY THE FACTS, WOULD HAVE A
VITAL BEARING ON JUSTIFICATION FOR DISMISSAL OF THE ACTION, BUT THEY
ARE NOT OPEN TO THE GOVERNMENT HERE.  THE FINDINGS BELOW REACH NO SUCH
CONCLUSIONS; INDEED, IT IS NOT EVEN APPARENT FROM THEM WHETHER THIS
PARTICULAR CHARGE WAS EVER PASSED UPON BELOW.  ALTHOUGH WE DO NOT MEAN
TO PRECLUDE THE GOVERNMENT FROM SEEKING TO ESTABLISH SUCH FACTS BEFORE
THE DISTRICT COURT UPON REMAND, OR ANY OTHER FACTS RELEVANT TO
JUSTIFICATION FOR DISMISSAL OF THE COMPLAINT, WE MUST DISPOSE OF THIS
CASE ON THE BASIS OF THE FINDINGS OF GOOD FAITH MADE BY THE SPECIAL
MASTER, ADOPTED BY THE DISTRICT COURT, AND APPROVED BY THE COURT OF
APPEALS. 

THE PROVISIONS OF RULE 37 WHICH ARE HERE INVOLVED MUST BE READ IN
LIGHT OF THE PROVISIONS OF THE FIFTH AMENDMENT THAT NO PERSON SHALL BE
DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW, AND MORE PARTICULARLY
AGAINST THE OPINIONS OF THIS COURT IN HOVEY V. ELLIOTT, 167 U.S. 409,
AND HAMMOND PACKING CO. V. ARKANSAS, 212 U.S. 322.  THESE DECISIONS
ESTABLISH THAT THERE ARE CONSTITUTIONAL LIMITATIONS UPON THE POWER OF
COURTS, EVEN IN AID OF THEIR OWN VALID PROCESSES, TO DISMISS AN ACTION
WITHOUT AFFORDING A PARTY THE OPPORTUNITY FOR A HEARING ON THE MERITS
OF HIS CAUSE.  THE AUTHORS OF RULE 37 WERE WELL AWARE OF THESE
CONSTITUTIONAL CONSIDERATIONS.  SEE NOTES OF ADVISORY COMMITTEE ON
RULES, RULE 37, 28 U.S.C. (1952 ED.), P. 4325. 

IN HOVEY V. ELLIOTT, SUPRA, IT WAS HELD THAT DUE PROCESS WAS DENIED A
DEFENDANT WHOSE ANSWER WAS STRUCK, THEREBY LEADING TO A DECREE PRO
CONFESSO WITHOUT A HEARING ON THE MERITS, BECAUSE OF HIS REFUSAL TO
OBEY A COURT ORDER PERTINENT TO THE SUIT.  THIS HOLDING WAS
SUBSTANTIALLY MODIFIED BY HAMMOND PACKING CO. V. ARKANSAS, SUPRA, WHERE
THE COURT RULED THAT A STATE COURT, CONSISTENTLY WITH THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT, COULD STRIKE THE ANSWER OF AND
RENDER A DEFAULT JUDGMENT AGAINST A DEFENDANT WHO REFUSED TO PRODUCE
DOCUMENTS IN ACCORDANCE WITH A PRETRIAL ORDER.  THE HOVEY CASE WAS
DISTINGUISHED ON GROUNDS THAT THE DEFENDANT THERE WAS DENIED HIS RIGHT
TO DEFEND "AS A MERE PUNISHMENT"; DUE PROCESS WAS FOUND PRESERVED IN
HAMMOND ON THE REASONING THAT THE STATE SIMPLY UTILIZED A PERMISSIBLE
PRESUMPTION THAT THE REFUSAL TO PRODUCE MATERIAL EVIDENCE "  ...  WAS
BUT AN ADMISSION OF THE WANT OF MERIT IN THE ASSERTED DEFENSE."  212
U.S., AT 350-351.  BUT THE COURT TOOK CARE TO EMPHASIZE THAT THE
DEFENDANT HAD NOT BEEN PENALIZED "  ...  FOR A FAILURE TO DO THAT WHICH
IT MAY NOT HAVE BEEN IN ITS POWER TO DO."  ALL THE STATE HAD REQUIRED
"WAS A BONA FIDE EFFORT TO COMPLY WITH AN ORDER  ...  , AND THEREFORE
ANY REASONABLE SHOWING OF AN INABILITY TO COMPLY WOULD HAVE SATISFIED
THE REQUIREMENTS  ...  " OF THE ORDER.  212 U.S., AT 347. 

THESE TWO DECISIONS LEAVE OPEN THE QUESTION WHETHER FIFTH AMENDMENT
DUE PROCESS IS VIOLATED BY THE STRIKING OF A COMPLAINT BECAUSE OF A
PLAINTIFF'S INABILITY, DESPITE GOOD-FAITH EFFORTS, TO COMPLY WITH A
PRETRIAL PRODUCTION ORDER.  THE PRESUMPTION UTILIZED BY THE COURT IN
THE HAMMOND CASE MIGHT WELL FALTER UNDER SUCH CIRCUMSTANCES.  CF. TOT
V. UNITED STATES, 319 U.S. 463.  CERTAINLY SUBSTANTIAL CONSTITUTIONAL
QUESTIONS ARE PROVOKED BY SUCH ACTION.  THEIR GRAVITY IS ACCENTED IN
THE PRESENT CASE WHERE PETITIONER, THOUGH CAST IN THE ROLE OF
PLAINTIFF, CANNOT BE DEEMED TO BE IN THE CUSTOMARY ROLE OF A PARTY
INVOKING THE AID OF A COURT TO VINDICATE RIGHTS ASSERTED AGAINST
ANOTHER.  RATHER PETITIONER'S POSITION IS MORE ANALOGOUS TO THAT OF A
DEFENDANT, FOR IT BELATEDLY CHALLENGES THE GOVERNMENT'S ACTION BY NOW
PROTESTING AGAINST A SEIZURE AND SEEKING THE RECOVERY OF ASSETS WHICH
WERE SUMMARILY POSSESSED BY THE ALIEN PROPERTY CUSTODIAN WITHOUT THE
OPPORTUNITY FOR PROTEST BY ANY PARTY CLAIMING THAT SEIZURE WAS
UNJUSTIFIED UNDER THE TRADING WITH THE ENEMY ACT.  PAST DECISIONS OF
THIS COURT EMPHASIZE THAT THIS SUMMARY POWER TO SEIZE PROPERTY WHICH IS
BELIEVED TO BE ENEMY-OWNED IS RESCUED FROM CONSTITUTIONAL INVALIDITY
UNDER THE DUE PROCESS AND JUST COMPENSATION CLAUSES OF THE FIFTH
AMENDMENT ONLY BY THOSE PROVISIONS OF THE ACT WHICH AFFORD A NONENEMY
CLAIMANT A LATER JUDICIAL HEARING AS TO THE PROPRIETY OF THE SEIZURE. 
SEE STOEHR V. WALLACE, 255 U.S. 239, 245-246; GUESSEFELDT V. MCGRATH,
342 U.S. 308, 318; CF.  RUSSIAN VOLUNTEER FLEET V. UNITED STATES, 282
U.S. 481, 489. 

THE FINDINGS BELOW, AND WHAT HAS BEEN SHOWN AS TO PETITIONER'S
EXTENSIVE EFFORTS AT COMPLIANCE, COMPEL THE CONCLUSION ON THIS RECORD
THAT PETITIONER'S FAILURE TO SATISFY FULLY THE REQUIREMENTS OF THIS
PRODUCTION ORDER WAS DUE TO INABILITY FOSTERED NEITHER BY ITS OWN
CONDUCT NOR BY CIRCUMSTANCES WITHIN ITS CONTROL.  IT IS HARDLY
DEBATABLE THAT FEAR OF CRIMINAL PROSECUTION CONSTITUTES A WEIGHTY
EXCUSE FOR NONPRODUCTION, AND THIS EXCUSE IS NOT WEAKENED BECAUSE THE
LAWS PREVENTING COMPLIANCE ARE THOSE OF A FOREIGN SOVEREIGN.  OF COURSE
THIS SITUATION SHOULD BE DISTINGUISHED FROM ONE WHERE A PARTY CLAIMS
THAT COMPLIANCE WITH A COURT'S ORDER WILL REVEAL FACTS WHICH MAY
PROVIDE THE BASIS FOR CRIMINAL PROSECUTION OF THAT PARTY UNDER THE
PENAL LAWS OF A FOREIGN SOVEREIGN THEREBY SHOWN TO HAVE BEEN VIOLATED. 
CF. UNITED STATES V. MURDOCK, 284 U.S. 141, 149.  HERE THE FINDINGS
BELOW ESTABLISH THAT THE VERY FACT OF COMPLIANCE BY DISCLOSURE OF
BANKING RECORDS WILL ITSELF CONSTITUTE THE INITIAL VIOLATION OF SWISS
LAWS.  IN OUR VIEW, PETITIONER STANDS IN THE POSITION OF AN AMERICAN
PLAINTIFF SUBJECT TO CRIMINAL SANCTIONS IN SWITZERLAND BECAUSE
PRODUCTION OF DOCUMENTS IN SWITZERLAND PURSUANT TO THE ORDER OF A
UNITED STATES COURT MIGHT VIOLATE SWISS LAWS.  PETITIONER HAS SOUGHT NO
PRIVILEGES BECAUSE OF ITS FOREIGN CITIZENSHIP WHICH ARE NOT ACCORDED
DOMESTIC LITIGANTS IN UNITED STATES COURTS.  CF. GUARANTY TRUST CO. V.
UNITED STATES, 304 U.S. 126, 133-135.  IT DOES NOT CLAIM THAT SWISS
LAWS PROTECTING BANKING RECORDS SHOULD HERE BE ENFORCED.  IT EXPLICITLY
RECOGNIZES THAT IT IS SUBJECT TO PROCEDURAL RULES OF UNITED STATES
COURTS IN THIS LITIGATION AND HAS MADE FULL EFFORTS TO FOLLOW THESE
RULES.  IT ASSERTS NO IMMUNITY FROM THEM.  IT ASSERTS ONLY ITS
INABILITY TO COMPLY BECAUSE OF FOREIGN LAW. 

IN VIEW OF THE FINDINGS IN THIS CASE, THE POSITION IN WHICH
PETITIONER STANDS IN THIS LITIGATION, AND THE SERIOUS CONSTITUTIONAL
QUESTIONS WE HAVE NOTED, WE THINK THAT RULE 37 SHOULD NOT BE CONSTRUED
TO AUTHORIZE DISMISSAL OF THIS COMPLAINT BECAUSE OF PETITIONER'S
NONCOMPLIANCE WITH A PRETRIAL PRODUCTION ORDER WHEN IT HAS BEEN
ESTABLISHED THAT FAILURE TO COMPLY HAS BEEN DUE TO INABILITY, AND NOT
TO WILLFULNESS, BAD FAITH, OR ANY FAULT OF PETITIONER.  (FN2) 

THIS IS NOT TO SAY THAT PETITIONER WILL PROFIT THROUGH ITS INABILITY
TO TENDER THE RECORDS CALLED FOR.  IN SEEKING RECOVERY OF THE GENERAL
ANILINE STOCK AND OTHER ASSETS, PETITIONER RECOGNIZES THAT IT CARRIES
THE ULTIMATE BURDEN OF PROOF OF SHOWING ITSELF NOT TO BE AN "ENEMY"
WITHIN THE MEANING OF THE TRADING WITH THE ENEMY ACT.  THE GOVERNMENT
ALREADY HAS DISPUTED ITS RIGHT TO RECOVERY BY RELYING ON INFORMATION
OBTAINED THROUGH SEIZED RECORDS OF I.G. FARBEN, DOCUMENTS OBTAINED
THROUGH PETITIONER, AND DEPOSITIONS TAKEN OF PERSONS AFFILIATED WITH
PETITIONER.  IT MAY BE THAT IN A TRIAL ON THE MERITS, PETITIONER'S
INABILITY TO PRODUCE SPECIFIC INFORMATION WILL PROVE A SERIOUS HANDICAP
IN DISPELLING DOUBT THE GOVERNMENT MIGHT BE ABLE TO INJECT INTO THE
CASE.  IT MAY BE THAT IN THE ABSENCE OF COMPLETE DISCLOSURE BY
PETITIONER, THE DISTRICT COURT WOULD BE JUSTIFIED IN DRAWING INFERENCES
UNFAVORABLE TO PETITIONER AS TO PARTICULAR EVENTS.  SO MUCH INDEED
PETITIONER CONCEDES.  BUT THESE PROBLEMS GO TO THE ADEQUACY OF
PETITIONER'S PROOF AND SHOULD NOT ON THIS RECORD PRECLUDE PETITIONER
FROM BEING ABLE TO CONTEST ON THE MERITS.    ON REMAND, THE DISTRICT
COURT POSSESSES WIDE DISCRETION TO PROCEED IN WHATEVER MANNER IT DEEMS
MOST EFFECTIVE.  IT MAY DESIRE TO AFFORD THE GOVERNMENT ADDITIONAL
OPPORTUNITY TO CHALLENGE PETITIONER'S GOOD FAITH.  IT MAY WISH TO
EXPLORE PLANS LOOKING TOWARDS FULLER COMPLIANCE.  OR IT MAY DECIDE TO
COMMENCE AT ONCE TRIAL ON THE MERITS.  WE DECIDE ONLY THAT ON THIS
RECORD DISMISSAL OF THE COMPLAINT WITH PREJUDICE WAS NOT JUSTIFIED. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  RULE 37 IS ENTITLED:  "REFUSAL TO MAKE DISCOVERY:
CONSEQUENCES."  DIFFERENT SUBSECTIONS REFER TO "REFUSAL TO ANSWER" (A),
"EXPENSES ON REFUSAL TO ADMIT" (C), "FAILURE OF PARTY TO ATTEND OR
SERVE ANSWERS" (D), AND "FAILURE TO RESPOND TO LETTERS ROGATORY" (E). 
WE FIND NO DESIGN IN THE RULES EVIDENCED BY THIS PATTERN OF WORDS TO
ESTABLISH THE CLEAR DISTINCTION PETITIONER DETECTS BETWEEN MERE FAILURE
AND WILLFUL REFUSAL INSOFAR AS RULE 37(B) IS CONCERNED.  THE WORD
"REFUSAL," BY WAY OF EXAMPLE, CLEARLY REFERS IN SEVERAL INSTANCES IN
SUBSECTION (A) OF THE RULE TO NONCOMPLIANCE FOR ANY REASON.  AND RULE
41(B) IN TURN, DISCUSSED ABOVE IN TEXT, REFERS SIMPLY TO "FAILURE  ...
TO COMPLY" BUT MIGHT AS APPLIED TO A PARTICULAR SITUATION REQUIRE A
SHOWING OF WILLFULNESS TO JUSTIFY DISMISSAL.  THE WORDS "REFUSAL" AND
"FAILURE" CANNOT BE DEEMED TO BEAR A FIXED MEANING COMMON TO THEIR USE
IN ALL SECTIONS BUT MUST BE READ IN THE CONTEXT OF A PARTICULAR
SUBSECTION. 

FN2  THE GOVERNMENT RELIES IN PART UPON A NUMBER OF BRITISH PRIZE
CASES IN SUPPORT OF ITS POSITION THAT DISMISSAL WITHOUT ADJUDICATION ON
THE MERITS IS JUSTIFIED WHERE A PARTY IS PREVENTED BY FOREIGN LAWS FROM
SATISFYING A COURT ORDER.  HOWEVER THESE CASES ARE TO BE INTERPRETED,
THEY ARE NOT PERSUASIVE AUTHORITY ON THE ISSUE BEFORE US.  WE ARE HERE
CONCERNED WITH THE INTERPRETATION TO BE ACCORDED RULES GOVERNING
PROCEDURE IN THE FEDERAL COURTS AND WITH CONSTITUTIONAL DOCTRINE
UNDERLYING THESE RULES. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















ESKRIDGE V. WASHINGTON STATE BOARD OF PRISON TERMS AND PAROLES 357 U.S.
214 


NO. 96.  ARGUED MAY 19, 1958 - DECIDED JUNE 16, 1958 - REVERSED AND
REMANDED. 


THE CONSTITUTION OF THE STATE OF WASHINGTON GIVES THE ACCUSED IN A
CRIMINAL PROSECUTION A RIGHT TO APPEAL IN ALL CASES, AND A STATE LAW
AUTHORIZES THE FURNISHING OF A STENOGRAPHIC TRANSCRIPT OF TRIAL
PROCEEDINGS TO AN INDIGENT DEFENDANT AT PUBLIC EXPENSE, IF, IN THE
OPINION OF THE TRIAL JUDGE, "JUSTICE WILL THEREBY BE PROMOTED." 
ALLEGING SUBSTANTIAL ERRORS IN HIS TRIAL FOR MURDER, PETITIONER MOVED
IN 1935 FOR A FREE TRANSCRIPT; BUT IT WAS DENIED.  THE STATE SUPREME
COURT DENIED PETITIONER A WRIT OF MANDATE DIRECTING THE TRIAL JUDGE TO
FURNISH THE TRANSCRIPT AND DISMISSED PETITIONER'S APPEAL FOR FAILURE TO
FILE A TRANSCRIPT.  IN 1956, PETITIONER APPLIED TO THE STATE SUPREME
COURT FOR HABEAS CORPUS, CHARGING THAT FAILURE TO FURNISH THE FREE
TRANSCRIPT HAD VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF
THE FOURTEENTH AMENDMENT; BUT THE WRIT WAS DENIED.  HELD:  PETITIONER
WAS DENIED HIS CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT;
THE JUDGMENT IS REVERSED; AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS.  GRIFFIN V. ILLINOIS, 351 U.S. 12.  PP. 214-216. 

ESKRIDGE V. WASHINGTON STATE BOARD OF PRISON TERMS AND PAROLES. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE CONSTITUTION OF THE STATE OF WASHINGTON PROVIDES:  "IN CRIMINAL
PROSECUTIONS, THE ACCUSED SHALL HAVE  ...  THE RIGHT TO APPEAL IN ALL
CASES  ...  ."  WASH. CONST., AMEND. 10.  IN 1935, AFTER PETITIONER WAS
CONVICTED OF MURDER IN A WASHINGTON STATE COURT AND SENTENCED TO LIFE
IMPRISONMENT, HE GAVE TIMELY NOTICE OF APPEAL TO THE SUPREME COURT OF
THE STATE.  WASHINGTON LAW AUTHORIZES A TRIAL JUDGE TO HAVE A
STENOGRAPHIC TRANSCRIPT OF TRIAL PROCEEDINGS FURNISHED AN INDIGENT
DEFENDANT AT PUBLIC EXPENSE "IF IN HIS OPINION JUSTICE WILL THEREBY BE
PROMOTED."  REMINGTON'S WASH. REV. STAT., 1932, SEC. 42-5.  ALLEGING
SUBSTANTIAL ERRORS IN HIS TRIAL PETITIONER MOVED FOR A FREE
TRANSCRIPT.  THE TRIAL JUDGE DENIED THIS MOTION, FINDING THAT "JUSTICE
WOULD NOT BE PROMOTED  ...  IN THAT DEFENDANT HAS BEEN ACCORDED A FAIR
AND IMPARTIAL TRIAL, AND IN THE COURT'S OPINION NO GRAVE OR PREJUDICIAL
ERRORS OCCURRED THEREIN."  PETITIONER THEN MOVED IN THE STATE SUPREME
COURT FOR WRIT OF MANDATE ORDERING THE TRIAL JUDGE TO HAVE A TRANSCRIPT
FURNISHED FOR THE PROSECUTION OF HIS APPEAL.  THE SUPREME COURT DENIED
THIS PETITION AND SIMULTANEOUSLY GRANTED THE STATE'S MOTION TO DISMISS
PETITIONER'S APPEAL FOR FAILURE TO FILE A CERTIFIED "STATEMENT OF
FACTS" AND "TRANSCRIPT OF RECORD."  IN 1956 PETITIONER APPLIED FOR
HABEAS CORPUS IN THE WASHINGTON SUPREME COURT CHARGING THAT FAILURE TO
FURNISH A FREE TRANSCRIPT OF THE PROCEEDINGS HAD VIOLATED THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.  HIS PETITION WAS DENIED WITHOUT OPINION
AND WE GRANTED CERTIORARI.  353 U.S. 922. 

IN THIS COURT THE STATE DOES NOT DENY PETITIONER'S ALLEGATIONS OF
POVERTY, THE SUBSTANTIALITY OF THE TRIAL ERRORS HE ALLEGES, OR THE
NECESSITY FOR HIM TO HAVE SOME RECORD OF THE PROCEEDINGS IN ORDER TO
PROSECUTE HIS APPEAL PROPERLY.  IT DOES ARGUE THAT PETITIONER MIGHT
HAVE UTILIZED NOTES COMPILED BY SOMEONE OTHER THAN THE OFFICIAL COURT
REPORTER.  ASSUMING THAT UNDER SOME CIRCUMSTANCES SUCH NOTES COULD BE
AN ADEQUATE SUBSTITUTE FOR A COURT REPORTER'S TRANSCRIPT THERE IS
NOTHING IN THIS RECORD TO SHOW THAT ANY WERE AVAILABLE TO PETITIONER,
AND THE WASHINGTON COURTS APPEAR TO HAVE PROCEEDED ON THE ASSUMPTION
THAT HE COULD NOT EFFECTIVELY PROSECUTE HIS APPEAL UNLESS THE MOTION
FOR A FREE TRANSCRIPT WAS GRANTED.  THE STATE CONCEDES THAT THE
REPORTER'S TRANSCRIPT FROM THE 1935 TRIAL IS STILL AVAILABLE.  IN
GRIFFIN V. ILLINOIS, 351 U.S. 12, WE HELD THAT A STATE DENIES A
CONSTITUTIONAL RIGHT GUARANTEED BY THE FOURTEENTH AMENDMENT IF IT
ALLOWS ALL CONVICTED DEFENDANTS TO HAVE APPELLATE REVIEW EXCEPT THOSE
WHO CANNOT AFFORD TO PAY FOR THE RECORDS OF THEIR TRIALS.  WE HOLD THAT
WASHINGTON HAS DENIED THIS CONSTITUTIONAL RIGHT HERE.  THE CONCLUSION
OF THE TRIAL JUDGE THAT THERE WAS NO REVERSIBLE ERROR IN THE TRIAL
CANNOT BE AN ADEQUATE SUBSTITUTE FOR THE RIGHT TO FULL APPELLATE REVIEW
AVAILABLE TO ALL DEFENDANTS IN WASHINGTON WHO CAN AFFORD THE EXPENSE OF
A TRANSCRIPT.  WE DO NOT HOLD THAT A STATE MUST FURNISH A TRANSCRIPT IN
EVERY CASE INVOLVING AN INDIGENT DEFENDANT.  BUT HERE, AS IN THE
GRIFFIN CASE, WE DO HOLD THAT, "DESTITUTE DEFENDANTS MUST BE AFFORDED
AS ADEQUATE APPELLATE REVIEW AS DEFENDANTS WHO HAVE MONEY ENOUGH TO BUY
TRANSCRIPTS."  GRIFFIN V. ILLINOIS, 351 U.S. 12, 19. 

THE JUDGMENT OF THE WASHINGTON SUPREME COURT IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER, BELIEVING THAT ON THIS
RECORD THE GRIFFIN CASE, DECIDED IN 1956, SHOULD NOT BE APPLIED TO THIS
CONVICTION OCCURRING IN 1935, WOULD AFFIRM THE JUDGMENT. 

MR. JUSTICE FRANKFURTER, NOT HAVING HEARD THE ARGUMENT, TOOK NO PART
IN THE CONSIDERATION OR DISPOSITION OF THE CASE. 
..END :





TRIPLETT V. IOWA 357 U.S. 217 


NO. 547.  ARGUED MAY 21, 1958 - DECIDED JUNE 16, 1958 - CERTIORARI, 355
U.S. 811, DISMISSED AS IMPROVIDENTLY GRANTED - REPORTED BELOW:  248
IOWA 339, 79 N.W.2D 391. 


TRIPLETT V. IOWA. 

CERTIORARI TO THE SUPREME COURT OF IOWA. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 
..END :

















DEFEBIO V. COUNTY SCHOOL BOARD OF FAIRFAX COUNTY 357 U.S. 218 


NO. 677, MISC.  DECIDED JUNE 16, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 199 VA. 511, 100 S.E.2D 760. 


DEFEBIO ET AL. V. COUNTY SCHOOL BOARD OF FAIRFAX COUNTY ET AL. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















CASH V. UNITED STATES 357 U.S. 219 


NO. 723, MISC.  DECIDED JUNE 16, 1958 - REPORTED BELOW: - U.S. APP. D.C.
- , 261 F.2D 731. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CAUSE REMANDED FOR
CONSIDERATION IN LIGHT OF CASES CITED. 

CASH V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR CONSIDERATION IN LIGHT OF ELLIS
V. UNITED STATES, 356 U.S. 674, DECIDED MAY 26, 1958, AND IN LIGHT OF
HILL V. UNITED STATES, 356 U.S. 704, DECIDED JUNE 2, 1958. 
..END :








ROGERS V. RICHMOND 357 U.S. 220 


NO. 755, MISC.  DECIDED JUNE 16, 1958. 


CERTIORARI DENIED WITH STATEMENT AS TO EFFECT OF OPINION OF COURT OF
APPEALS IN 252 F.2D 807. 

ROGERS V. RICHMOND, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS DENIED.  WE READ THE OPINION
OF THE COURT OF APPEALS AS HOLDING THAT WHILE THE DISTRICT JUDGE MAY,
UNLESS HE FINDS A VITAL FLAW IN THE STATE COURT PROCEEDINGS, ACCEPT THE
DETERMINATION IN SUCH PROCEEDINGS, HE NEED NOT DEEM SUCH DETERMINATION
BINDING, AND MAY TAKE TESTIMONY.  SEE BROWN V. ALLEN, 344 U.S. 443,
506, ET SEQ.
..END :









FLORA V. UNITED STATES 362 U.S. 145 


NO. 492, OCTOBER TERM, 1957.  ARGUED MAY 20, 1958 - DECIDED JUNE 16,
1958 - REHEARING GRANTED JUNE 22, 1959 - REARGUED NOVEMBER 12, 1959 -
DECIDED MARCH 21, 1960 - 246 F.2D 929, AFFIRMED. 


UNDER 28 U.S.C. SEC. 1346(A)(1), A FEDERAL DISTRICT COURT DOES NOT
HAVE JURISDICTION OF AN ACTION BY A TAXPAYER FOR REFUND OF A PART
PAYMENT MADE BY HIM ON AN ASSESSMENT FOR AN ALLEGED DEFICIENCY IN HIS
INCOME TAX.  THE TAXPAYER MUST PAY THE FULL AMOUNT OF THE ASSESSMENT
BEFORE HE MAY CHALLENGE ITS VALIDITY IN AN ACTION UNDER SEC.
1346(A)(1).  FLORA V. UNITED STATES, 357 U.S. 63, REAFFIRMED.  PP. 146
177. 

(A)  THE LANGUAGE OF SEC. 1346(A)(1) CAN MORE READILY BE CONSTRUED TO
REQUIRE PAYMENT OF THE FULL TAX BEFORE SUIT THAN TO PERMIT SUIT FOR
RECOVERY OF A PART PAYMENT.  PP. 148-151. 

(B)  THE LEGISLATIVE HISTORY OF SEC. 1346(A)(1) IS BARREN OF ANY CLUE
TO THE CONGRESSIONAL INTENT ON THIS ISSUE; BUT THAT SECTION IS A
JURISDICTIONAL PROVISION WHICH IS A KEYSTONE IN A CAREFULLY ARTICULATED
AND QUITE COMPLICATED STRUCTURE OF TAX LAWS; SINCE ENACTMENT OF ITS
PRECURSOR IN 1921 CONGRESS HAS SEVERAL TIMES ACTED UPON THE ASSUMPTION
THAT SEC. 1346(A)(1) REQUIRES FULL PAYMENT BEFORE SUIT; AND ANY
EVIDENCE OF A CONTRARY INTENT IS TOO WEAK AND INSUBSTANTIAL TO JUSTIFY
DESTROYING THE EXISTING HARMONY OF THE TAX STATUTES.  PP. 151-158. 

(C)  IN ESTABLISHING THE BOARD OF TAX APPEALS (NOW THE TAX COURT),
CONGRESS ACTED UPON THE ASSUMPTION THAT FULL PAYMENT OF THE TAX
ASSESSED WAS A CONDITION PRECEDENT FOR BRINGING SUIT FOR REFUND IN A
DISTRICT COURT, AND IT CHOSE TO ESTABLISH THE BOARD AS A DIFFERENT
FORUM WHERE THE VALIDITY OF AN ASSESSMENT COULD BE LITIGATED WITHOUT
PRIOR PAYMENT IN FULL.  PP. 158-163. 

(D)  TO PERMIT SUCH A SUIT IN A DISTRICT COURT WOULD BE INCONSISTENT
WITH THE PURPOSE OF SEC. 405 OF THE REVENUE ACT OF 1935, WHICH AMENDED
THE DECLARATORY JUDGMENT ACT SO AS TO EXCEPT DISPUTES "WITH RESPECT TO
FEDERAL TAXES."  PP. 164-165. 

(E)  TO PERMIT SUCH A SUIT IN A DISTRICT COURT WOULD GENERATE THE
VERY PROBLEMS WHICH CONGRESS BELIEVED IT HAD SOLVED BY SEC. 7422(E) OF
THE INTERNAL REVENUE CODE OF 1954.  PP. 165-167. 

(F)  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE ADMINISTRATIVE
PRACTICE PRIOR TO 1940 NOR BY A FEW INCONSEQUENTIAL EXCEPTIONS TO THE
OTHERWISE UNIFORM BELIEF PRIOR TO 1940 THAT FULL PAYMENT HAD TO PRECEDE
SUIT IN A DISTRICT COURT FOR REFUND.  PP. 167-175. 

(G)  REQUIRING TAXPAYERS TO PAY ASSESSMENTS IN FULL BEFORE SUING IN A
DISTRICT COURT WILL NOT NECESSARILY SUBJECT THEM TO UNDUE HARDSHIPS,
SINCE THEY MAY APPEAL TO THE TAX COURT WITHOUT FIRST PAYING ANYTHING. 
PP. 175-177. 

FLORA V. UNITED STATES. 

ON REHEARING. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER A FEDERAL DISTRICT COURT HAS
JURISDICTION UNDER 28 U.S.C.  SEC. 1346(A)(1) OF A SUIT BY A TAXPAYER
FOR THE REFUND OF INCOME TAX PAYMENTS WHICH DID NOT DISCHARGE THE
ENTIRE AMOUNT OF HIS ASSESSMENT. 

THIS IS OUR SECOND CONSIDERATION OF THE CASE.  IN THE 1957 TERM, WE
DECIDED THAT FULL PAYMENT OF THE ASSESSMENT IS A JURISDICTIONAL
PREREQUISITE TO SUIT, 357 U.S. 63.  SUBSEQUENTLY THE COURT GRANTED A
PETITION FOR REHEARING.  360 U.S. 922.  THE CASE HAS BEEN EXHAUSTIVELY
BRIEFED AND ABLY ARGUED.  AFTER GIVING THE PROBLEM OUR MOST CAREFUL
ATTENTION, WE HAVE CONCLUDED THAT OUR ORIGINAL DISPOSITION OF THE CASE
WAS CORRECT. 

UNDER SUCH CIRCUMSTANCES, NORMALLY A BRIEF EPILOGUE TO THE PRIOR
OPINION WOULD BE SUFFICIENT TO ACCOUNT FOR OUR DECISION.  HOWEVER,
BECAUSE PETITIONER IN REARGUMENT HAS PLACED SOMEWHAT GREATER EMPHASIS
UPON CERTAIN CONTENTIONS THAN HE HAD PREVIOUSLY, AND BECAUSE OUR
DISSENTING COLLEAGUES HAVE ELABORATED UPON THE REASONS FOR THEIR
DISAGREEMENT, WE DEEM IT ADVISABLE TO SET FORTH OUR REASONING IN SOME
DETAIL, EVEN THOUGH THIS NECESSITATES REPEATING MUCH OF WHAT WE HAVE
ALREADY SAID. 

                                  THE FACTS. 

THE RELEVANT FACTS ARE UNDISPUTED AND UNCOMPLICATED.  THIS LITIGATION
HAS ITS SOURCE IN A DISPUTE BETWEEN PETITIONER AND THE COMMISSIONER OF
INTERNAL REVENUE CONCERNING THE PROPER CHARACTERIZATION OF CERTAIN
LOSSES WHICH PETITIONER SUFFERED DURING 1950.  PETITIONER REPORTED THEM
AS ORDINARY LOSSES, BUT THE COMMISSIONER TREATED THEM AS CAPITAL LOSSES
AND LEVIED A DEFICIENCY ASSESSMENT IN THE AMOUNT OF $28,908.60,
INCLUDING INTEREST.  PETITIONER PAID $5,058.54 AND THEN FILED WITH THE
COMMISSIONER A CLAIM FOR REFUND OF THAT AMOUNT.  AFTER THE CLAIM WAS
DISALLOWED, PETITIONER SUED FOR REFUND IN A DISTRICT COURT.  THE
GOVERNMENT MOVED TO DISMISS, AND THE JUDGE DECIDED THAT THE PETITIONER
"SHOULD NOT MAINTAIN" THE ACTION BECAUSE HE HAD NOT PAID THE FULL
AMOUNT OF THE ASSESSMENT.  BUT SINCE THERE WAS A CONFLICT AMONG THE
COURTS OF APPEALS ON THIS JURISDICTIONAL QUESTION, AND SINCE THE TENTH
CIRCUIT HAD NOT YET PASSED UPON IT, THE JUDGE BELIEVED IT DESIRABLE TO
DETERMINE THE MERITS OF THE CLAIM.  HE THEREUPON CONCLUDED THAT THE
LOSSES WERE CAPITAL IN NATURE AND ENTERED JUDGMENT IN FAVOR OF THE
GOVERNMENT.  142 F. SUPP. 602.  THE COURT OF APPEALS FOR THE TENTH
CIRCUIT AGREED WITH THE DISTRICT JUDGE UPON THE JURISDICTIONAL ISSUE,
AND CONSEQUENTLY REMANDED WITH DIRECTIONS TO VACATE THE JUDGMENT AND
DISMISS THE COMPLAINT.  246 F.2D 929.  WE GRANTED CERTIORARI BECAUSE
THE COURTS OF APPEALS WERE IN CONFLICT WITH RESPECT TO A QUESTION WHICH
IS OF CONSIDERABLE IMPORTANCE IN THE ADMINISTRATION OF THE TAX LAWS. 
(FN1)

                                 THE STATUTE. 

THE QUESTION RAISED IN THIS CASE HAS NOT ONLY RAISED A CONFLICT IN
THE FEDERAL DECISIONS, BUT HAS ALSO IN RECENT YEARS PROVOKED
CONTROVERSY AMONG LEGAL COMMENTATORS.  (FN2)  IN VIEW OF THIS
DIVERGENCE OF EXPERT OPINION, IT WOULD BE SURPRISING IF THE WORDS OF
THE STATUTE INEXORABLY DICTATED BUT A SINGLE REASONABLE CONCLUSION. 
NEVERTHELESS, ONE OF THE ARGUMENTS WHICH HAS BEEN MOST STRENUOUSLY
URGED IS THAT THE PLAIN LANGUAGE OF THE STATUTE PRECLUDES, OR AT THE
VERY LEAST STRONGLY MILITATES AGAINST, A DECISION THAT FULL PAYMENT OF
THE INCOME TAX ASSESSMENT IS A JURISDICTIONAL CONDITION PRECEDENT TO
MAINTENANCE OF A REFUND SUIT IN A DISTRICT COURT.  IF THIS WERE TRUE,
PRESUMABLY WE COULD BUT RECITE THE STATUTE AND ENTER JUDGMENT FOR
PETITIONER - THOUGH WE MIGHT BE PARDONED SOME PERPLEXITY AS TO HOW SUCH
A SIMPLE MATTER COULD HAVE CAUSED SO MUCH CONFUSION.  REGRETTABLY, THIS
FACILE AN APPROACH WILL NOT SERVE. 

JURISDICTION, CONCURRENT WITH THE COURT OF CLAIMS, OF: 

"(1)  ANY CIVIL ACTION AGAINST THE UNITED STATES FOR THE RECOVERY OF
ANY INTERNAL-REVENUE TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY
ASSESSED OR COLLECTED, OR ANY PENALTY CLAIMED TO HAVE BEEN COLLECTED
WITHOUT AUTHORITY OR ANY SUM ALLEGED TO HAVE BEEN EXCESSIVE OR IN ANY
MANNER WRONGFULLY COLLECTED UNDER THE INTERNAL-REVENUE LAWS  ...  ." 

IT IS CLEAR ENOUGH THAT THE PHRASE "ANY INTERNAL-REVENUE TAX" CAN
READILY BE CONSTRUED TO REFER TO PAYMENT OF THE ENTIRE AMOUNT OF AN
ASSESSMENT.  SUCH AN INTERPRETATION IS SUGGESTED BY THE NATURE OF THE
INCOME TAX, WHICH IS "A TAX  ...  IMPOSED FOR EACH TAXABLE YEAR," WITH
THE "AMOUNT OF THE TAX" DETERMINED IN ACCORDANCE WITH PRESCRIBED
SCHEDULES.  (FN3)  BUT IT IS ARGUED THAT THIS READING OF THE STATUTE IS
FORECLOSED BY THE PRESENCE IN SEC. 1346(A)(1) OF THE PHRASE "ANY SUM." 
THIS CONTENTION APPEARS TO BE BASED UPON THE NOTION THAT "ANY SUM" IS A
CATCHALL WHICH CONFERS JURISDICTION TO ADJUDICATE SUITS FOR REFUND OF
PART OF A TAX.  A CATCHALL THE PHRASE SURELY IS; BUT TO SAY THIS IS NOT
TO DEFINE WHAT IT CATCHES.  THE SWEEPING ROLE WHICH PETITIONER ASSIGNS
THESE WORDS IS BASED UPON A CONJUNCTIVE READING OF "ANY INTERNAL
REVENUE TAX," "ANY PENALTY," AND "ANY SUM."  BUT WE BELIEVE THAT THE
STATUTE MORE READILY LENDS ITSELF TO THE DISJUNCTIVE READING WHICH IS
SUGGESTED BY THE CONNECTIVE "OR."  THAT IS, "ANY SUM," INSTEAD OF BEING
RELATED TO "ANY INTERNAL-REVENUE TAX" AND "ANY PENALTY," MAY REFER TO
AMOUNTS WHICH ARE NEITHER TAXES NOR PENALTIES.   UNDER THIS
INTERPRETATION, THE FUNCTION OF THE PHRASE IS TO PERMIT SUIT FOR
RECOVERY OF ITEMS WHICH MIGHT NOT BE DESIGNATED AS EITHER "TAXES" OR
"PENALTIES" BY CONGRESS OR THE COURTS.  ONE OBVIOUS EXAMPLE OF SUCH A
"SUM" IS INTEREST.  AND IT IS SIGNIFICANT THAT MANY OLD TAX STATUTES
DESCRIBED THE AMOUNT WHICH WAS TO BE ASSESSED UNDER CERTAIN
CIRCUMSTANCES AS A "SUM" TO BE ADDED TO THE TAX, SIMPLY AS A "SUM," AS
A "PERCENTUM," OR AS "COSTS."  (FN4)  SUCH A RENDITION OF THE STATUTE,
WHICH IS SUPPORTED BY PRECEDENT, (FN5) FREES THE PHRASE "ANY INTERNAL
REVENUE TAX" FROM THE QUALIFICATIONS IMPOSED UPON IT BY PETITIONER AND
PERMITS IT TO BE GIVEN WHAT WE REGARD AS ITS MORE NATURAL READING - THE
FULL TAX.  MOREOVER, THIS CONSTRUCTION, UNDER WHICH EACH PHRASE IS
ASSIGNED A DISTINCT MEANING, IMPUTES TO CONGRESS A SURER GRAMMATICAL
TOUCH THAN DOES THE ALTERNATIVE INTERPRETATION, UNDER WHICH THE "ANY
SUM" PHRASE COMPLETELY ASSIMILATES THE OTHER TWO.  SURELY A MUCH
CLEARER STATUTE COULD HAVE BEEN WRITTEN TO AUTHORIZE SUITS FOR REFUND
OF ANY PART OF A TAX MERELY BY USE OF THE PHRASE "A TAX OR ANY PORTION
THEREOF," OR SIMPLY "ANY SUM PAID UNDER THE INTERNAL REVENUE LAWS." 
THIS COURT NATURALLY DOES NOT REVIEW CONGRESSIONAL ENACTMENTS AS A
PANEL OF GRAMMARIANS; BUT NEITHER DO WE REGARD ORDINARY PRINCIPLES OF
ENGLISH PROSE AS IRRELEVANT TO A CONSTRUCTION OF THOSE ENACTMENTS.  CF.
COMMISSIONER V. ACKER, 361 U.S. 87. 

WE CONCLUDE THAT THE LANGUAGE OF SEC. 1346(A)(1) CAN BE MORE READILY
CONSTRUED TO REQUIRE PAYMENT OF THE FULL TAX BEFORE SUIT THAN TO PERMIT
SUIT FOR RECOVERY OF A PART PAYMENT.  BUT, AS WE RECOGNIZED IN THE
PRIOR OPINION, THE STATUTORY LANGUAGE IS NOT ABSOLUTELY CONTROLLING,
AND CONSEQUENTLY RESORT MUST BE HAD TO WHATEVER OTHER MATERIALS MIGHT
BE RELEVANT.  (FN6)

                LEGISLATIVE HISTORY AND HISTORICAL BACKGROUND. 

ALTHOUGH FREQUENTLY THE LEGISLATIVE HISTORY OF A STATUTE IS THE MOST
FRUITFUL SOURCE OF INSTRUCTION AS TO ITS PROPER INTERPRETATION, IN THIS
CASE THAT HISTORY IS BARREN OF ANY CLUE TO CONGRESSIONAL INTENT. 

THE PRECURSOR OF SEC. 1346(A)(1) WAS SEC. 1310(C) OF THE REVENUE ACT
OF 1921, (FN7) IN WHICH THE LANGUAGE WITH WHICH WE ARE HERE CONCERNED
APPEARED FOR THE FIRST TIME IN A JURISDICTIONAL STATUTE.  SECTION
1310(C) HAD AN OVERT PURPOSE UNRELATED TO THE QUESTION WHETHER FULL
PAYMENT OF AN ASSESSED TAX WAS A JURISDICTIONAL PREREQUISITE TO A SUIT
FOR REFUND.  PRIOR TO 1921, TAX REFUND SUITS AGAINST THE UNITED STATES
COULD BE MAINTAINED IN THE DISTRICT COURTS UNDER THE AUTHORITY OF THE
TUCKER ACT, WHICH HAD BEEN PASSED IN 1887.  (FN8)  WHERE THE CLAIM
EXCEEDED $10,000, HOWEVER, SUCH A SUIT COULD NOT BE BROUGHT, AND IN
SUCH A SITUATION THE TAXPAYER'S REMEDY IN DISTRICT COURT WAS AGAINST
THE COLLECTOR.  BUT BECAUSE THE COLLECTOR HAD TO BE SUED PERSONALLY, NO
DISTRICT COURT ACTION WAS AVAILABLE IF HE WAS DECEASED.  (FN9)  THE
1921 PROVISION, WHICH WAS AN AMENDMENT TO THE TUCKER ACT, WAS
EXPLICITLY DESIGNED TO PERMIT TAXPAYERS TO SUE THE UNITED STATES IN THE
DISTRICT COURTS FOR SUMS EXCEEDING $10,000 WHERE THE COLLECTOR HAD
DIED.  (FN10) 

THE ANCESTRY OF THE LANGUAGE OF SEC. 1346(A)(1) IS NO MORE
ENLIGHTENING THAN IS THE LEGISLATIVE HISTORY OF THE 1921 PROVISION. 
THIS LANGUAGE, WHICH, AS WE HAVE STATED, APPEARED IN SUBSTANTIALLY ITS
PRESENT FORM IN THE 1921 AMENDMENT, WAS APPARENTLY TAKEN FROM R.S. SEC.
3226 (1878).  BUT SEC. 3226 WAS NOT A JURISDICTIONAL STATUTE AT ALL; IT
SIMPLY SPECIFIED THAT SUITS FOR RECOVERY OF TAXES, PENALTIES, OR SUMS
COULD NOT BE MAINTAINED UNTIL AFTER A CLAIM FOR REFUND HAD BEEN
SUBMITTED TO THE COMMISSIONER.  (FN11) 

THUS THERE IS PRESENTED A VEXING SITUATION - STATUTORY LANGUAGE WHICH
IS INCONCLUSIVE AND LEGISLATIVE HISTORY WHICH IS IRRELEVANT.  THIS, OF
COURSE, DOES NOT NECESSARILY MEAN THAT SEC. 1346(A)(1) EXPRESSES NO
CONGRESSIONAL INTENT WITH RESPECT TO THE ISSUE BEFORE THE COURT; BUT IT
DOES MAKE THAT INTENT UNCOMMONLY DIFFICULT TO DIVINE. 

IT IS ARGUED, HOWEVER, THAT THE PUZZLE MAY BE SOLVED THROUGH
CONSIDERATION OF THE HISTORICAL BASIS OF A SUIT TO RECOVER A TAX
ILLEGALLY ASSESSED.  THE ARGUMENT PROCEEDS AS FOLLOWS:  A SUIT TO
RECOVER TAXES COULD, BEFORE THE TUCKER ACT, BE BROUGHT ONLY AGAINST THE
COLLECTOR.  SUCH A SUIT WAS BASED UPON THE COMMON-LAW COUNT OF
ASSUMPSIT FOR MONEY HAD AND RECEIVED, AND THE NATURE OF THAT COUNT
REQUIRES THE INFERENCE THAT A SUIT FOR RECOVERY OF PART PAYMENT OF A
TAX COULD HAVE BEEN MAINTAINED.   NEITHER THE TUCKER ACT NOR THE 1921
AMENDMENT INDICATES AN INTENT TO CHANGE THE NATURE OF THE REFUND ACTION
IN ANY PERTINENT RESPECT.  CONSEQUENTLY, THERE IS NO WARRANT FOR
IMPORTING INTO SEC. 1346(A)(1) A FULL-PAYMENT REQUIREMENT. 

FOR REASONS WHICH WILL APPEAR LATER, WE BELIEVE THAT THE CONCLUSION
WOULD NOT FOLLOW EVEN IF THE PREMISES WERE CLEARLY SOUND.  BUT IN
ADDITION WE HAVE SUBSTANTIAL DOUBT ABOUT THE VALIDITY OF THE PREMISES. 
AS WE HAVE ALREADY INDICATED, THE LANGUAGE OF THE 1921 AMENDMENT DOES
IN FACT TEND TO INDICATE A CONGRESSIONAL PURPOSE TO REQUIRE FULL
PAYMENT AS A JURISDICTIONAL PREREQUISITE TO SUIT FOR REFUND.  MOREOVER,
WE ARE NOT SATISFIED THAT THE SUIT AGAINST THE COLLECTOR WAS IDENTICAL
TO THE COMMON-LAW ACTION OF ASSUMPSIT FOR MONEY HAD AND RECEIVED.  ONE
DIFFICULTY IS THAT, BECAUSE OF THE ACT OF FEBRUARY 26, 1845, C. 22, 5
STAT. 727, WHICH RESTORED THE RIGHT OF ACTION AGAINST THE COLLECTOR
AFTER THIS COURT HAD HELD THAT IT HAD BEEN IMPLICITLY ELIMINATED BY
OTHER LEGISLATION, (FN12) THE COURT NO LONGER REGARDED THE SUIT AS A
COMMON-LAW ACTION, BUT RATHER AS A STATUTORY REMEDY WHICH "IN ITS
NATURE WAS A REMEDY AGAINST THE GOVERNMENT."  CURTIS'S ADMINISTRATRIX
V. FIEDLER, 2 BLACK 461, 479.  ON THE OTHER HAND, IT IS TRUE THAT NONE
OF THE STATUTES RELATING TO THIS TYPE OF SUIT CLEARLY INDICATE A
CONGRESSIONAL INTENTION TO REQUIRE FULL PAYMENT OF THE ASSESSED TAX
BEFORE SUIT.  (FN13)  NEVERTHELESS, THE OPINION OF THIS COURT IN
CHEATHAM V. UNITED STATES, 92 U.S. 85, PREVENTS US FROM ACCEPTING THE
ANALOGY BETWEEN THE STATUTORY ACTION AGAINST THE COLLECTOR AND THE
COMMON-LAW COUNT.  IN THIS 1875 OPINION, THE COURT DESCRIBED THE
REMEDIES AVAILABLE TO TAXPAYERS AS FOLLOWS: 

"SO ALSO, IN THE INTERNAL-REVENUE DEPARTMENT, THE STATUTE WHICH WE
HAVE COPIED ALLOWS APPEALS FROM THE ASSESSOR TO THE COMMISSIONER OF
INTERNAL REVENUE; AND, IF DISSATISFIED WITH HIS DECISION, ON PAYING THE
TAX THE PARTY CAN SUE THE COLLECTOR; AND, IF THE MONEY WAS WRONGFULLY
EXACTED, THE COURTS WILL GIVE HIM RELIEF BY A JUDGMENT, WHICH THE
UNITED STATES PLEDGES HERSELF TO PAY. 

     *         *         *         *         * 

"  ...  WHILE A FREE COURSE OF REMONSTRANCE AND APPEAL IS ALLOWED
WITHIN THE DEPARTMENTS BEFORE THE MONEY IS FINALLY EXACTED, THE GENERAL
GOVERNMENT HAS WISELY MADE THE PAYMENT OF THE TAX CLAIMED, WHETHER OF
CUSTOMS OR OF INTERNAL REVENUE, A CONDITION PRECEDENT TO A RESORT TO
THE COURTS BY THE PARTY AGAINST WHOM THE TAX IS ASSESSED  ...  .  IF
THE COMPLIANCE WITH THIS CONDITION (THAT APPEAL MUST BE MADE TO THE
COMMISSIONER AND SUIT BROUGHT WITHIN SIX MONTHS OF HIS DECISION)
REQUIRES THE PARTY AGGRIEVED TO PAY THE MONEY, HE MUST DO IT.  HE
CANNOT, AFTER THE DECISION IS RENDERED AGAINST HIM, PROTRACT THE TIME
WITHIN WHICH HE CAN CONTEST THAT DECISION IN THE COURTS BY HIS OWN
DELAY IN PAYING THE MONEY.  IT IS ESSENTIAL TO THE HONOR AND ORDERLY
CONDUCT OF THE GOVERNMENT THAT ITS TAXES SHOULD BE PROMPTLY PAID, AND
DRAWBACKS SPEEDILY ADJUSTED; AND THE RULE PRESCRIBED IN THIS CLASS OF
CASES IS NEITHER ARBITRARY NOR UNREASONABLE  ...  . 

"THE OBJECTING PARTY CAN TAKE HIS APPEAL.  HE CAN, IF THE DECISION IS
DELAYED BEYOND TWELVE MONTHS, REST HIS CASE ON THAT DECISION; OR HE CAN
PAY THE AMOUNT CLAIMED, AND COMMENCE HIS SUIT AT ANY TIME WITHIN THAT
PERIOD.  SO, AFTER THE DECISION, HE CAN PAY AT ONCE, AND COMMENCE SUIT
WITHIN THE SIX MONTHS  ...  ."  92 U.S., AT 88-89.    REARGUMENT HAS
NOT CHANGED OUR VIEW THAT THIS LANGUAGE REFLECTS AN UNDERSTANDING THAT
FULL PAYMENT OF THE TAX WAS A PREREQUISITE TO SUIT.  OF COURSE, AS
STATED IN OUR PRIOR OPINION, THE CHEATHAM STATEMENT IS DICTUM; BUT WE
REITERATE THAT IT APPEARS TO US TO BE "CAREFULLY CONSIDERED DICTUM." 
357 U.S., AT 68.  EQUALLY IMPORTANT IS THE FACT THAT THE COURT WAS
CONSTRUING THE CLAIM-FOR-REFUND STATUTE FROM WHICH, AS AMENDED, THE
LANGUAGE OF SEC. 1346(A)(1) WAS PRESUMABLY TAKEN.  (FN14)  THUS IT
SEEMS THAT IN CHEATHAM THE SUPREME COURT INTERPRETED THIS LANGUAGE NOT
ONLY TO SPECIFY WHICH CLAIMS FOR REFUND MUST FIRST BE PRESENTED FOR
ADMINISTRATIVE RECONSIDERATION, BUT ALSO TO CONSTITUTE AN ADDITIONAL
QUALIFICATION UPON THE STATUTURY RIGHT TO SUE THE COLLECTOR.  IT IS
TRUE THAT THE VERSION OF THE PROVISION INVOLVED IN CHEATHAM CONTAINED
ONLY THE PHRASE "ANY TAX."  BUT THE PHRASES "ANY PENALTY" AND "ANY SUM"
WERE ADDED WELL BEFORE THE DECISION IN CHEATHAM; (FN15) THE HISTORY OF
THESE AMENDMENTS MAKES IT QUITE CLEAR THAT THEY WERE NOT DESIGNED TO
EFFECT ANY CHANGE RELEVANT TO THE CHEATHAM RULE; (FN16) LANGUAGE IN
OPINIONS OF THIS COURT AFTER CHEATHAM IS CONSISTENT WITH THE CHEATHAM
STATEMENT; (FN17) AND IN ANY EVENT, AS WE HAVE INDICATED, WE CAN SEE
NOTHING IN THESE ADDITIONAL WORDS WHICH WOULD NEGATE THE FULL-PAYMENT
REQUIREMENT. 

IF THIS WERE ALL THE MATERIAL RELEVANT TO A CONSTRUCTION OF SEC.
1346(A)(1), DETERMINATION OF THE ISSUE AT BAR WOULD BE INORDINATELY
DIFFICULT.  FAVORING PETITIONER WOULD BE THE THEORY THAT, IN THE EARLY
NINTEENTH CENTURY, A SUIT FOR RECOVERY OF PART PAYMENT OF AN ASSESSMENT
COULD BE MAINTAINED AGAINST THE COLLECTOR, TOGETHER WITH THE ABSENCE OF
ANY CONCLUSIVE EVIDENCE THAT CONGRESS HAS EVER INTENDED TO INAUGURATE A
NEW RULE; FAVORING RESPONDENT WOULD BE THE CHEATHAM STATEMENT AND THE
LANGUAGE OF THE 1921 STATUTE.  THERE ARE, HOWEVER, ADDITIONAL FACTORS
WHICH ARE DISPOSITIVE. 

WE ARE NOT HERE CONCERNED WITH A SINGLE SENTENCE IN AN ISOLATED
STATUTE, BUT RATHER WITH A JURISDICTIONAL PROVISION WHICH IS A KEYSTONE
IN A CAREFULLY ARTICULATED AND QUITE COMPLICATED STRUCTURE OF TAX
LAWS.  FROM THESE RELATED STATUTES, ALL OF WHICH WERE PASSED AFTER
1921, IT IS APPARENT THAT CONGRESS HAS SEVERAL TIMES ACTED UPON THE
ASSUMPTION THAT SEC. 1346(A)(1) REQUIRES FULL PAYMENT BEFORE SUIT.  OF
COURSE, IF THE CLEAR PURPOSE OF CONGRESS AT ANY TIME HAD BEEN TO PERMIT
SUIT TO RECOVER A PART PAYMENT, THIS SUBSEQUENT LEGISLATION WOULD HAVE
TO BE DISREGARDED.  BUT, AS WE HAVE STATED, THE EVIDENCE PERTAINING TO
THIS INTENT IS EXTREMELY WEAK, AND WE ARE CONVINCED THAT IT IS ENTIRELY
TOO INSUBSTANTIAL TO JUSTIFY DESTROYING THE EXISTING HARMONY OF THE TAX
STATUTES.  THE LAWS WHICH WE CONSIDER ESPECIALLY PERTINENT ARE THE
STATUTE ESTABLISHING THE BOARD OF TAX APPEALS (NOW THE TAX COURT), THE
DECLARATORY JUDGMENT ACT, AND SEC. 7422(E) OF THE INTERNAL REVENUE CODE
OF 1954. 

                           THE BOARD OF TAX APPEALS. 

THE BOARD OF TAX APPEALS WAS ESTABLISHED BY CONGRESS IN 1924 TO
PERMIT TAXPAYERS TO SECURE A DETERMINATION OF TAX LIABILITY BEFORE
PAYMENT OF THE DEFICIENTY.  (FN18)  THE GOVERNMENT ARGUES THAT THE
CONGRESS WHICH PASSED THIS 1924 LEGISLATION THOUGHT FULL PAYMENT OF THE
TAX ASSESSED WAS A CONDITION FOR BRINGING SUIT IN A DISTRICT COURT;
THAT CONGRESS BELIEVED THIS SOMETIMES CAUSED HARDSHIP; AND THAT
CONGRESS SET UP THE BOARD TO ALLEVIATE THAT HARDSHIP.  PETITIONER
DENIES THIS, AND CONTENDS THAT CONGRESS' SOLE PURPOSE WAS TO ENABLE
TAXPAYERS TO PREVENT THE GOVERNMENT FROM COLLECTING TAXES BY EXERCISE
OF ITS POWER OF DISTRAINT.  (FN19) 

WE BELIEVE THAT THE LEGISLATIVE HISTORY SURROUNDING BOTH THE CREATION
OF THE BOARD AND THE SUBSEQUENT REVISIONS OF THE BASIC STATUTE SUPPORTS
THE GOVERNMENT.  THE HOUSE COMMITTEE REPORT, FOR EXAMPLE, EXPLAINED THE
PURPOSE OF THE BILL AS FOLLOWS: 

"THE COMMITTEE RECOMMENDS THE ESTABLISHMENT OF A BOARD OF TAX APPEALS
TO WHICH A TAXPAYER MAY APPEAL PRIOR TO THE PAYMENT OF AN ADDITIONAL
ASSESSMENT OF INCOME, EXCESS-PROFITS, WAR-PROFITS, OR ESTATE TAXES. 
ALTHOUGH A TAXPAYER MAY, AFTER PAYMENT OF HIS TAX, BRING SUIT FOR THE
RECOVERY THEREOF AND THUS SECURE A JUDICIAL DETERMINATION ON THE
QUESTIONS INVOLVED, HE CAN NOT, IN VIEW OF SECTION 3224 OF THE REVISED
STATUTES, WHICH PROHIBITS SUITS TO ENJOIN THE COLLECTION OF TAXES,
SECURE SUCH A DETERMINATION PRIOR TO THE PAYMENT OF THE TAX.  THE RIGHT
OF APPEAL AFTER PAYMENT OF THE TAX IS AN INCOMPLETE REMEDY, AND DOES
LITTLE TO REMOVE THE HARDSHIP OCCASIONED BY AN INCORRECT ASSESSMENT. 
THE PAYMENT OF A LARGE ADDITIONAL TAX ON INCOME RECEIVED SEVERAL YEARS
PREVIOUS AND WHICH MAY HAVE, SINCE ITS RECEIPT, BEEN EITHER WIPED OUT
BY SUBSEQUENT LOSSES, INVESTED IN NONLIQUID ASSETS, OR SPENT, SOMETIMES
FORCES TAXPAYERS INTO BANKRUPTCY, AND OFTEN CAUSES GREAT FINANCIAL
HARDSHIP AND SACRIFICE.  THESE RESULTS ARE NOT REMEDIED BY PERMITTING
THE TAXPAYER TO SUE FOR THE RECOVERY OF THE TAX AFTER THIS PAYMENT.  HE
IS ENTITLED TO AN APPEAL AND TO A DETERMINATION OF HIS LIABILITY FOR
THE TAX PRIOR TO ITS PAYMENT."  (FN20) 

MOREOVER, THROUGHOUT THE CONGRESSIONAL DEBATES ARE TO BE FOUND
FREQUENT EXPRESSIONS OF THE PRINCIPLE THAT PAYMENT OF THE FULL TAX WAS
A PRECONDITION TO SUIT:  "PAY HIS TAX  ...  THEN  ... FILE A CLAIM FOR
REFUND"; "PAY THE TAX AND THEN SUE"; "A REVIEW IN THE COURTS AFTER
PAYMENT OF THE TAX"; "HE MAY STILL SEEK COURT REVIEW, BUT HE MUST FIRST
PAY THE TAX ASSESSED"; "IN ORDER TO GO TO COURT HE MUST PAY HIS
ASSESSMENT"; "HE MUST PAY IT (HIS ASSESSMENT) BEFORE HE CAN HAVE A
TRIAL IN COURT"; "PAY THE TAXES ADJUDICATED AGAINST HIM, AND THEN
COMMENCE A SUIT IN A COURT"; "PAY THE TAX ...  THEN  ...  SUE TO GET IT
BACK"; "PAYING HIS TAX AND BRINGING HIS SUIT"; "FIRST PAY HIS TAX AND
THEN SUE TO GET IT BACK"; "TAKE HIS CASE TO THE DISTRICT COURT -
CONDITIONED, OF COURSE, UPON HIS PAYING THE ASSESSMENT."  (FN21) 

PETITIONER'S ARGUMENT FALLS UNDER THE WEIGHT OF THIS EVIDENCE.  IT IS
TRUE, OF COURSE, THAT THE BOARD OF TAX APPEALS PROCEDURE HAS THE EFFECT
OF STAYING COLLECTION, (FN22) AND IT MAY WELL BE THAT CONGRESS SO
PROVIDED IN ORDER TO ALLEVIATE HARDSHIPS CAUSED BY THE LONG-STANDING
BAR AGAINST SUITS TO ENJOIN THE COLLECTION OF TAXES.  BUT IT IS A
CONSIDERABLE LEAP TO THE FURTHER CONCLUSION THAT AMELIORATION OF THE
HARDSHIP OF PRELITIGATION PAYMENT AS A JURISDICTIONAL REQUIREMENT WAS
NOT ANOTHER IMPORTANT MOTIVATION FOR CONGRESS' ACTION.  (FN23)  TO
RECONCILE THE LEGISLATIVE HISTORY WITH THIS CONCLUSION SEEMS TO REQUIRE
THE PRESUMPTION THAT ALL THE CONGRESSMEN WHO SPOKE OF PAYMENT OF THE
ASSESSMENT BEFORE SUIT AS A HARDSHIP UNDERSTOOD - WITHOUT SAYING - THAT
SUIT COULD BE BROUGHT FOR WHATEVER PART OF THE ASSESSMENT HAD BEEN
PAID, BUT BELIEVED THAT, AS A PRACTICAL MATTER, HARDSHIP WOULD
NONETHELESS ARISE BECAUSE THE GOVERNMENT WOULD REQUIRE PAYMENT OF THE
BALANCE OF THE TAX BY EXERCISING ITS POWER OF DISTRAINT.  BUT IF THIS
WAS IN FACT THE VIEW OF THESE LEGISLATORS, IT IS INDEED EXTRAORDINARY
THAT THEY DID NOT SAY SO.  (FN24)  MOREOVER, IF CONGRESS' ONLY CONCERN
WAS TO PREVENT DISTRAINT, IT IS SOMEWHAT DIFFICULT TO UNDERSTAND WHY
CONGRESS DID NOT SIMPLY AUTHORIZE INJUNCTION SUITS.  IT IS INTERESTING
TO NOTE IN THIS CONNECTION THAT BILLS TO PERMIT THE SAME TYPE OF
PREPAYMENT LITIGATION IN THE DISTRICT COURTS AS IS POSSIBLE IN THE TAX
COURT HAVE BEEN INTRODUCED SEVERAL TIMES, BUT NONE HAS EVER BEEN
ADOPTED.  (FN25) 

IN SUM, EVEN ASSUMING THAT ONE PURPOSE OF CONGRESS IN ESTABLISHING
THE BOARD WAS TO PERMIT TAXPAYERS TO AVOID DISTRAINT, IT SEEMS EVIDENT
THAT ANOTHER PURPOSE WAS TO FURNISH A FORUM WHERE FULL PAYMENT OF THE
ASSESSMENT WOULD NOT BE A CONDITION PRECEDENT TO SUIT.  THE RESULT IS A
SYSTEM IN WHICH THERE IS ONE TRIBUNAL FOR PREPAYMENT LITIGATION AND
ANOTHER FOR POST-PAYMENT LITIGATION, WITH NO ROOM CONTEMPLATED FOR A
HYBRID OF THE TYPE PROPOSED BY PETITIONER. 

       THE DECLARATORY JUDGMENT ACT. 

THE FEDERAL DECLARATORY JUDGMENT ACT OF 1934 (FN26) WAS AMENDED BY
SEC. 405 OF THE REVENUE ACT OF 1935 EXPRESSLY TO EXCEPT DISPUTES "WITH
RESPECT TO FEDERAL TAXES."  (FN27)  THE SENATE REPORT EXPLAINED THE
PURPOSE OF THE AMENDMENT AS FOLLOWS: 

"YOUR COMMITTEE HAS ADDED AN AMENDMENT MAKING IT CLEAR THAT THE
FEDERAL DECLARATORY JUDGMENTS ACT OF JUNE 14, 1934, HAS NO APPLICATION
TO FEDERAL TAXES.  THE APPLICATION OF THE DECLARATORY JUDGMENTS ACT TO
TAXES WOULD CONSTITUTE A RADICAL DEPARTURE FROM THE LONG-CONTINUED
POLICY OF CONGRESS (AS EXPRESSED IN REV. STAT. 3224 AND OTHER
PROVISIONS) WITH RESPECT TO THE DETERMINATION, ASSESSMENT, AND
COLLECTION OF FEDERAL TAXES.  YOUR COMMITTEE BELIEVES THAT THE ORDERLY
AND PROMPT DETERMINATION AND COLLECTION OF FEDERAL TAXES SHOULD NOT BE
INTERFERED WITH BY A PROCEDURE DESIGNED TO FACILITATE THE SETTLEMENT OF
PRIVATE CONTROVERSIES, AND THAT EXISTING PROCEDURE BOTH IN THE BOARD OF
TAX APPEALS AND THE COURTS AFFORDS AMPLE REMEDIES FOR THE CORRECTION OF
TAX ERRORS."  (FN28) 

IT IS CLEAR ENOUGH THAT ONE "RADICAL DEPARTURE" WHICH WAS AVERTED BY
THE AMENDMENT WAS THE POTENTIAL CIRCUMVENTION OF THE "PAY FIRST AND
LITIGATE LATER" RULE BY WAY OF SUITS FOR DECLARATORY JUDGMENTS IN TAX
CASES.  (FN29)  PETITIONER WOULD HAVE US GIVE THIS COURT'S IMPRIMATUR
TO PRECISELY THE SAME TYPE OF "RADICAL DEPARTURE," SINCE A SUIT FOR
RECOVERY OF BUT A PART OF AN ASSESSMENT WOULD DETERMINE THE LEGALITY OF
THE BALANCE BY OPERATION OF THE PRINCIPLE OF COLLATERAL ESTOPPEL.  WITH
RESPECT TO THIS UNPAID PORTION, THE TAXPAYER WOULD BE SECURING WHAT IS
IN EFFECT - EVEN THOUGH NOT TECHNICALLY - A DECLARATORY JUDGMENT.  THE
FRUSTRATION OF CONGRESSIONAL INTENT WHICH PETITIONER ASKS US TO ENDORSE
COULD HARDLY BE MORE GLARING, FOR HE HAS CONCEDED THAT HIS ARGUMENT
LEADS LOGICALLY TO THE CONCLUSION THAT PAYMENT OF EVEN $1 ON A LARGE
ASSESSMENT ENTITLES THE TAXPAYER TO SUE - A CONCESSION AMPLY WARRANTED
BY THE OBVIOUS IMPRACTICALITY OF ANY JUDICIALLY CREATED JURISDICTIONAL
STANDARD MIDWAY BETWEEN FULL PAYMENT AND ANY PAYMENT. 

                       SECTION 7422(E) OF THE 1954 CODE. 

ONE DISTINCT POSSIBILITY WHICH WOULD EMERGE FROM A DECISION IN FAVOR
OF PETITIONER WOULD BE THAT A TAXPAYER MIGHT BE ABLE TO SPLIT HIS CAUSE
OF ACTION, BRINGING SUIT FOR REFUND OF PART OF THE TAX IN A FEDERAL
DISTRICT COURT AND LITIGATING IN THE TAX COURT WITH RESPECT TO THE
REMAINDER.  IN SUCH A SITUATION THE FIRST DECISION WOULD, OF COURSE,
CONTROL.  THUS IF FOR ANY REASON A LITIGANT WOULD PREFER A DISTRICT
COURT ADJUDICATION, (FN30) HE MIGHT SUE FOR A SMALL PORTION OF THE TAX
IN THAT TRIBUNAL WHILE AT THE SAME TIME PROTECTING THE BALANCE FROM
DISTRAINT BY INVOKING THE PROTECTION OF THE TAX COURT PROCEDURE.  ON
THE OTHER HAND, DIFFERENT QUESTIONS WOULD ARISE IF THIS DEVICE WERE NOT
EMPLOYED.  FOR EXAMPLE, WOULD THE GOVERNMENT BE REQUIRED TO FILE A
COMPULSORY COUNTERCLAIM FOR THE UNPAID BALANCE IN DISTRICT COURT UNDER
RULE 13 OF THE FEDERAL RULES OF CIVIL PROCEDURE?  IF SO, WHICH PARTY
WOULD HAVE THE BURDEN OF PROOF?  (FN31) 

THAT CONGRESS HAS ASSUMED THESE PROBLEMS ARE NONEXISTENT EXCEPT IN THE
RARE CASE WHERE THE TAXPAYER BRINGS SUIT IN A DISTRICT COURT AND THE
COMMISSIONER THEN NOTIFIES HIM OF AN ADDITIONAL DEFICIENCY.  UNDER SEC.
7422(E) SUCH A CLAIMANT IS GIVEN THE OPTION OF PURSUING HIS SUIT IN THE
DISTRICT COURT OR IN THE TAX COURT, BUT HE CANNOT LITIGATE IN BOTH. 
MOREOVER, IF HE DECIDES TO REMAIN IN THE DISTRICT COURT, THE GOVERNMENT
MAY - BUT SEEMINGLY IS NOT REQUIRED TO - BRING A COUNTERCLAIM; AND IF
IT DOES, THE TAXPAYER HAS THE BURDEN OF PROOF.  (FN32)  IF WE WERE TO
OVERTURN THE ASSUMPTION UPON WHICH CONGRESS HAS ACTED, WE WOULD
GENERATE UPON A BROAD SCALE THE VERY PROBLEMS CONGRESS BELIEVED IT HAD
SOLVED.  (FN33) 

THESE, THEN, ARE THE BASIC REASONS FOR OUR DECISION, AND OUR VIEWS
WOULD BE UNAFFECTED BY THE CONSTANCY OR INCONSTANCY OF ADMINISTRATIVE
PRACTICE.  HOWEVER, BECAUSE THE PETITION FOR REHEARING IN THIS CASE
FOCUSED ALMOST EXCLUSIVELY UPON A SINGLE CLAUSE IN THE PRIOR OPINION -
"THERE DOES NOT APPEAR TO BE A SINGLE CASE BEFORE 1940 IN WHICH A
TAXPAYER ATTEMPTED A SUIT FOR REFUND OF INCOME TAXES WITHOUT PAYING THE
FULL AMOUNT THE GOVERNMENT ALLEGED TO BE DUE," 357 U.S., AT 69 - WE
FEEL OBLIGED TO COMMENT UPON THE MATERIAL INTRODUCED UPON REARGUMENT. 
THE REARGUMENT HAS, IF ANYTHING, STRENGTHENED, RATHER THAN WEAKENED,
THE SUBSTANCE OF THIS STATEMENT, WHICH WAS DIRECTED TO THE QUESTION
WHETHER THERE HAS BEEN A CONSISTENT UNDERSTANDING OF THE "PAY FIRST AND
LITIGATE LATER" PRINCIPLE BY THE INTERESTED GOVERNMENT AGENCIES AND BY
THE BAR. 

SO FAR AS APPEARS, SUHR V. UNITED STATES, 18 F.2D 81, DECIDED BY THE
THIRD CIRCUIT IN 1927, IS THE EARLIEST CASE IN WHICH A TAXPAYER IN A
REFUND ACTION SOUGHT TO CONTEST AN ASSESSMENT WITHOUT HAVING PAID THE
FULL AMOUNT THEN DUE.  (FN34)  IN HOLDING THAT THE DISTRICT COURT HAD
NO JURISDICTION OF THE ACTION, THE COURT OF APPEALS SAID: 

"NONE OF THE VARIOUS TAX ACTS PROVIDE FOR RECOURSE TO THE COURTS BY A
TAXPAYER UNTIL HE HAS FAILED TO GET RELIEF FROM THE PROPER
ADMINISTRATIVE BODY OR HAS PAID ALL TAXES ASSESSED AGAINST HIM.  THE
PAYMENT OF A PART DOES NOT CONFER JURISDICTION UPON THE COURTS ...  .
THERE IS NO PROVISION FOR REFUND TO THE TAXPAYER OF ANY EXCESS PAYMENT
OF ANY INSTALLMENT OR PART OF HIS TAX, IF THE WHOLE TAX FOR THE YEAR
HAS NOT BEEN PAID."  ID., AT 83. 

ALTHOUGH THE STATEMENT BY THE COURT MIGHT HAVE BEEN DICTUM, (FN35) IT
WAS IN ACCORD WITH SUBSTANTIALLY CONTEMPORANEOUS STATEMENTS BY
SECRETARY OF THE TREASURY A.W. MELLON, BY UNDER SECRETARY OF THE
TREASURY GARRARD B. WINSTON, BY THE FIRST CHAIRMAN OF THE BOARD OF TAX
APPEALS, CHARLES D. HAMEL, AND BY LEGAL COMMENTATORS.  (FN36)    THERE
IS STRONG CIRCUMSTANTIAL EVIDENCE THAT THIS VIEW OF THE JURISDICTION OF
THE COURTS WAS SHARED BY THE BAR AT LEAST UNTIL 1940, WHEN THE SECOND
CIRCUIT COURT OF APPEALS REJECTED THE GOVERNMENT'S POSITION IN COATES
V. UNITED STATES, 111 F.2D 609.  OUT OF THE MANY THOUSANDS OF REFUND
CASES LITIGATED IN THE PRE-1940 PERIOD - THE GOVERNMENT REPORTS THAT
THERE HAVE BEEN APPROXIMATELY 40,000 SUCH SUITS IN THE PAST 40 YEARS -
EXHAUSTIVE RESEARCH HAS UNCOVERED ONLY NINE SUITS IN WHICH THE ISSUE
WAS PRESENT, IN SIX OF WHICH THE GOVERNMENT CONTESTED JURISDICTION ON
PART-PAYMENT GROUNDS.  (FN37)  THE GOVERNMENT'S FAILURE TO RAISE THE
ISSUE IN THE OTHER THREE IS OBVIOUSLY ENTIRELY WITHOUT SIGNIFICANCE. 
CONSIDERATIONS OF LITIGATION STRATEGY MAY HAVE BEEN THOUGHT TO MILITATE
AGAINST RESTING UPON SUCH A DEFENSE IN THOSE CASES.  MOREOVER, WHERE
ONLY NINE LAWSUITS INVOLVING A PARTICULAR ISSUE ARISE OVER A PERIOD OF
MANY DECADES, THE POLICY OF THE EXECUTIVE DEPARTMENT ON THAT ISSUE CAN
HARDLY BE EXPECTED TO BECOME FAMILIAR TO EVERY GOVERNMENT ATTORNEY. 
BUT MOST IMPORTANT, THE NUMBER OF CASES BEFORE 1940 IN WHICH THE ISSUE
WAS PRESENT IS SIMPLY SO INCONSEQUENTIAL THAT IT REINFORCES THE
CONCLUSION OF THE PRIOR OPINION WITH RESPECT TO THE UNIFORMITY OF THE
PRE-1940 BELIEF THAT FULL PAYMENT HAD TO PRECEDE SUIT. 

A WORD SHOULD ALSO BE SAID ABOUT THE ARGUMENT THAT REQUIRING TAXPAYERS
TO PAY THE FULL ASSESSMENTS BEFORE BRINGING SUITS WILL SUBJECT SOME OF
THEM TO GREAT HARDSHIP.  THIS CONTENTION SEEMS TO IGNORE ENTIRELY THE
RIGHT OF THE TAXPAYER TO APPEAL THE DEFICIENCY TO THE TAX COURT WITHOUT
PAYING A CENT. (FN38)  IF HE PERMITS HIS TIME FOR FILING SUCH AN APPEAL
TO EXPIRE, HE CAN HARDLY COMPLAIN THAT HE HAS BEEN UNJUSTLY TREATED,
FOR HE IS IN PRECISELY THE SAME POSITION AS ANY OTHER PERSON WHO IS
BARRED BY A STATUTE OF LIMITATIONS.  ON THE OTHER HAND, THE GOVERNMENT
HAS A SUBSTANTIAL INTEREST IN PROTECTING THE PUBLIC PURSE, AN INTEREST
WHICH WOULD BE SUBSTANTIALLY IMPAIRED IF A TAXPAYER COULD SUE IN A
DISTRICT COURT WITHOUT PAYING HIS TAX IN FULL.  IT IS INSTRUCTIVE TO
NOTE THAT, AS OF JUNE 30, 1959, TAX CASES PENDING IN THE TAX COURT
INVOLVED $920,046,748, AND REFUND SUITS IN OTHER COURTS INVOLVED
$446,673,640.  (FN39)  IT IS QUITE TRUE THAT THE FILING OF AN APPEAL TO
THE TAX COURT NORMALLY PRECLUDES THE GOVERNMENT FROM REQUIRING PAYMENT
OF THE TAX, (FN40) BUT A DECISION IN PETITIONER'S FAVOR COULD BE
EXPECTED TO THROW A GREAT PORTION OF THE TAX COURT LITIGATION INTO THE
DISTRICT COURTS.  (FN41)  OF COURSE, THE GOVERNMENT CAN COLLECT THE TAX
FROM A DISTRICT COURT SUITOR BY EXERCISING ITS POWER OF DISTRAINT - IF
HE DOES NOT SPLIT HIS CAUSE OF ACTION - BUT WE CANNOT BELIEVE THAT
COMPELLING RESORT TO THIS EXTRAORDINARY PROCEDURE IS EITHER WISE OR IN
ACCORD WITH CONGRESSIONAL INTENT.  OUR SYSTEM OF TAXATION IS BASED UPON
VOLUNTARY ASSESSMENT AND PAYMENT, NOT UPON DISTRAINT.  (FN42)  A FULL
PAYMENT REQUIREMENT WILL PROMOTE THE SMOOTH FUNCTIONING OF THIS SYSTEM;
A PART-PAYMENT RULE WOULD WORK AT CROSS-PURPOSES WITH IT.  (FN43) 

IN SUM, IF WE WERE TO ACCEPT PETITIONER'S ARGUMENT, WE WOULD
SACRIFICE THE HARMONY OF OUR CAREFULLY STRUCTURED TWENTIETH CENTURY
SYSTEM OF TAX LITIGATION, AND ALL THAT WOULD BE ACHIEVED WOULD BE A
SUPPOSED HARMONY OF SEC. 1346(A)(1) WITH WHAT MIGHT HAVE BEEN THE
NINETEENTH CENTURY LAW HAD THE ISSUE EVER BEEN RAISED.  REARGUMENT HAS
BUT FORTIFIED OUR VIEW THAT SEC. 1346(A)(1), CORRECTLY CONSTRUED,
REQUIRES FULL PAYMENT OF THE ASSESSMENT BEFORE AN INCOME TAX REFUND
SUIT CAN BE MAINTAINED IN A FEDERAL DISTRICT COURT.  AFFIRMED. 

FN1  THE DECISION OF THE COURT OF APPEALS IN FLORA CONFLICTED WITH
BUSHMIAER V. UNITED STATES, 230 F.2D 146 (C.A. 8TH CIR.).  CF. COATES
V. UNITED STATES, 111 F.2D 609 (C.A.2D CIR.); SIRIAN LAMP CO. V.
MANNING, 123 F.2D 776 (C.A. 3D CIR.); SUHR V. UNITED STATES, 18 F.2D 81
(C.A. 3D CIR.), SEMBLE. 

FN2  AS WILL APPEAR LATER, PRIOR TO 1940 THE GENERAL VIEW WAS THAT
FULL PAYMENT WAS A JURISDICTIONAL PREREQUISITE.  BUT A SUBSTANTIAL
DIFFERENCE OF OPINION AROSE AFTER 1940, WHEN THE COURT OF APPEALS FOR
THE SECOND CIRCUIT DECIDED COATES V. UNITED STATES, 111 F.2D 609,
AGAINST THE GOVERNMENT.  SEE RIORDAN, MUST YOU PAY FULL TAX ASSESSMENT
BEFORE SUING IN THE DISTRICT COURT?  8 J. TAX.  179; BEAMAN, WHEN NOT
TO GO TO THE TAX COURT:  ADVANTAGES AND PROCEDURES IN GOING TO THE
DISTRICT COURT, 7 J. TAX.  356; RUDICK AND WENDER, FEDERAL INCOME
TAXATION, 32 N.Y.U.L. REV. 751, 777-778; NOTE, 44 CALIF. L. REV. 956;
NOTE, 2 HOW.  L.J. 290. 

FN3  SEE I.R.C. (1954), SECS. 1(A), 1(B)(1), 68A STAT. 5, 6.  THE
SAME GENERAL PATTERN HAS EXISTED FOR MANY YEARS.  SEE, E.G., SECS. 116,
117, OF THE ACT OF JUNE 30, 1864, C. 173, 13 STAT. 281-282. 

FN4  REVENUE ACT OF 1924, C. 234, SEC. 275(A), 43 STAT. 298; REVENUE
ACT OF 1918, C. 18, SEC. 250(E), 40 STAT. 1084; ACT OF JUNE 6, 1872, C.
315, SEC. 21, 17 STAT. 246; ACT OF JUNE 30, 1864, C. 173, SEC. 119, 13
STAT. 283.  SEE ALSO HELVERING V. MITCHELL, 303 U.S. 391, 405. 

FN5  LOWER COURTS HAVE GIVEN THIS CONSTRUCTION TO THE SAME THREE
PHRASES IN CERTAIN CLAIM-FOR-REFUND AND LIMITATIONS PROVISIONS IN PRIOR
TAX STATUTES.  UNITED STATES V. MAGOON, 77 F.2D 804; UNION TRUST CO. V.
UNITED STATES, 5 F. SUPP. 259, 261 ("THE NATURAL DEFINITION OF 'TAX'
COMPREHENDS ONE 'ASSESSMENT' OR ONE TAX IN THE ENTIRE AMOUNT OF
LIABILITY"), AFF'D, 70 F.2D 629, 630 ("WE AGREE WITH THE DISTRICT COURT
THAT 'TAX,' 'PENALTY,' AND 'SUM' REFER TO DISTINCT CATEGORIES OF
ILLEGAL COLLECTIONS AND 'TAX' INCLUDES THE ENTIRE TAX LIABILITY AS
ASSESSED BY THE COMMISSIONER"); UNITED STATES V. CLARKE, 69 F.2D 748;
HILLS V. UNITED STATES, 50 F.2D 302, 55 F.2D 1001 (CT. CL.); CF. BLAIR
V. BIRKENSTOCK, 271 U.S. 348. 

FN6  IN THE PRIOR OPINION WE STATED THAT, WERE IT NOT FOR CERTAIN
COUNTERVAILING CONSIDERATIONS, THE STATUTORY LANGUAGE "MIGHT  ...  BE
TERMED A CLEAR AUTHORIZATION" TO SUE FOR THE REFUND OF PART PAYMENT OF
AN ASSESSMENT.  357 U.S., AT 65.  IT IS QUITE OBVIOUS THAT WE DID NOT
REGARD THE LANGUAGE AS CLEAR ENOUGH TO PRECLUDE DECIDING THE CASE ON
OTHER GROUNDS.  MOREOVER, IT COULD AT THAT TIME BE ASSUMED THAT THE
TERMS OF THE STATUTE FAVORED THE TAXPAYER, BECAUSE EIGHT MEMBERS OF THE
COURT CONSIDERED THE EXTRINSIC EVIDENCE ALONE SUFFICIENT TO DECIDE THE
CASE AGAINST HIM.  ALTHOUGH WE ARE STILL OF THAT OPINION, WE NOW STATE
OUR VIEWS WITH REGARD TO THE BARE WORDS OF THE STATUTE BECAUSE THE
ARGUMENT THAT THESE WORDS ARE DECISIVELY AGAINST THE GOVERNMENT HAS
BEEN URGED SO STRENUOUSLY. 

FN7  42 STAT. 311. 

FN8  24 STAT. 505, AS AMENDED, 28 U.S.C. SECS. 1346, 1491.  SEE
UNITED STATES V. EMERY, BIRD, THAYER REALTY CO., 237 U.S. 28. 

FN9  SMIETANKA V. INDIANA STEEL CO., 257 U.S. 1. 

FN10  SEE H.R. CONF. REP. NO. 486, 67TH CONG., 1ST SESS. 57; REMARKS
OF SENATOR JONES, 61 CONG. REC. 7506-7507.  ANOTHER AMENDMENT WAS ADDED
IN 1925 GIVING THE RIGHT TO BRING REFUND SUITS AGAINST THE UNITED
STATES WHERE THE COLLECTOR WAS OUT OF OFFICE.  43 STAT.  972.  AND IN
1954, BOTH THE $10,000 LIMITATION AND THE LIMITATION WITH RESPECT TO
THE COLLECTOR BEING DEAD OR OUT OF OFFICE WERE ELIMINATED.  68 STAT.
589. 

FN11  THE TEXT OF R.S. SEC. 3226 IS SET FORTH IN NOTE 16, INFRA,
TOGETHER WITH A MORE DETAILED ACCOUNT OF THE ORIGIN AND DEVELOPMENT OF
THE PERTINENT STATUTORY LANGUAGE.  THE SUCCESSOR OF R.S. SEC. 3226 IS
I.R.C. (1954), SEC. 7422(A), 68A STAT. 876. 

FN12  SEE CARY V. CURTIS, 3 HOW.  236. 

FN13  E.G., ACT OF FEB. 26, 1845, C. 22, 5 STAT. 727; ACT OF MAR. 3,
1863, C. 74, 12 STAT.  729; ACT OF JUNE 30, 1864, C. 173, SEC. 44, 13
STAT. 239-240. 

FN14  SEE NOTE 16, INFRA. 

FN15  CHEATHAM WAS DECIDED IN O.T. 1875, WHILE THE PHRASES IN
QUESTION WERE ADDED TO THE STATUTE ON JUNE 6, 1872.  SEE NOTE 16,
INFRA, FOR A DISCUSSION OF THE STATUTE INVOLVED IN CHEATHAM AND ITS
AMENDMENT. 

FN16  SECTION 19 OF THE ACT OF JULY 13, 1866, C. 184, 14 STAT. 152,
WAS INVOLVED IN CHEATHAM.  THAT SECTION PROVIDED: 

"SEC. 19.  ...  NO SUIT SHALL BE MAINTAINED IN ANY COURT FOR THE
RECOVERY OF ANY TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY
ASSESSED OR COLLECTED, UNTIL APPEAL SHALL HAVE BEEN DULY MADE TO THE
COMMISSIONER OF INTERNAL REVENUE  ...  ." 

THE PHRASES "ANY PENALTY" AND "ANY SUM" WERE FIRST INTRODUCED INTO
THE STATUTE IN SEC. 44 OF THE ACT OF JUNE 6, 1872, C. 315, 17 STAT. 257
258, WHICH READ AS FOLLOWS: 

"SEC. 44.  THAT ALL SUITS AND PROCEEDINGS FOR THE RECOVERY OF ANY
INTERNAL TAX ALLEGED TO HAVE BEEN ERRONEOUSLY ASSESSED OR COLLECTED, OR
ANY PENALTY CLAIMED TO HAVE BEEN COLLECTED WITHOUT AUTHORITY, OR FOR
ANY SUM WHICH IT IS ALLEGED WAS EXCESSIVE, OR IN ANY MANNER WRONGFULLY
COLLECTED, SHALL BE BROUGHT WITHIN TWO YEARS NEXT AFTER THE CAUSE OF
ACTION ACCRUED AND NOT AFTER; AND ALL CLAIMS FOR THE REFUNDING OF ANY
INTERNAL TAX OR PENALTY SHALL BE PRESENTED TO THE COMMISSIONER OF
INTERNAL REVENUE WITHIN TWO YEARS NEXT AFTER THE CAUSE OF ACTION
ACCRUED AND NOT AFTER  ...  ." 

A CAREFUL READING OF THIS STATUTE DISCLOSES THE ABSURD RESULT WHICH
WOULD FLOW FROM CONSTRUING THE ADDITION OF THE "ANY SUM" LANGUAGE TO
AFFECT THE FULL-PAYMENT RULE, WHICH, UNDER THIS ARGUMENT, WOULD BE
BASED UPON THE "ANY TAX" PHRASE IN THE 1866 STATUTE.  THAT IS, SINCE
THE "ANY SUM" PHRASE OCCURS ONLY IN THE STATUTE OF LIMITATIONS PORTION
OF THE 1872 STATUTE, AND NOT IN THE CLAIM-FOR-REFUND PROVISION, A
PERSON WOULD BE ABLE TO BRING A SUIT FOR PART PAYMENT WITHOUT FILING A
CLAIM FOR REFUND. 

THERE WERE NO MATERIAL CHANGES IN R.S. SEC. 3226, WHICH PROVIDED: 

"SEC. 3226.  NO SUIT SHALL BE MAINTAINED IN ANY COURT FOR THE
RECOVERY OF ANY INTERNAL TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR
ILLEGALLY ASSESSED OR COLLECTED, OR OF ANY PENALTY CLAIMED TO HAVE BEEN
COLLECTED WITHOUT AUTHORITY, OR OF ANY SUM ALLEGED TO HAVE BEEN
EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED, UNTIL APPEAL SHALL
HAVE BEEN DULY MADE TO THE COMMISSIONER OF  ...  INTERNAL REVENUE  ...
." 

IT IS NO DOUBT TRUE, AS PETITIONER SAYS, THAT THESE VARIOUS
AMENDMENTS WERE DESIGNED TO REQUIRE SUBMISSION OF ALL LITIGABLE CLAIMS
TO THE COMMISSIONER; BUT, AS WE HAVE EXPLAINED, THIS INDICATES NO MORE
THAN AN INTENT TO COVER TAXES, PENALTIES, AND SUMS WHICH MIGHT,
STRICTLY SPEAKING, BE NEITHER TAXES NOR PENALTIES. 

FN17  KINGS COUNTY SAVINGS INSTITUTION V. BLAIR, 116 U.S. 200, 205
(1886)("NO CLAIM FOR THE REFUNDING OF TAXES CAN BE MADE ACCORDING TO
LAW AND THE REGULATIONS UNTIL AFTER THE TAXES HAVE BEEN PAID  ...  .
NO SUIT CAN BE MAINTAINED FOR TAXES ILLEGALLY COLLECTED UNLESS A CLAIM
THEREFOR HAS BEEN MADE WITHIN THE TIME PRESCRIBED BY THE LAW"); POLLOCK
V. FARMERS' LOAN & TRUST CO., 157 U.S. 429, 609 (1895)(DISSENTING
OPINION)("THE SAME AUTHORITIES INCLUDING THE CHEATHAM CASE HAVE
ESTABLISHED THE RULE THAT THE PROPER COURSE, IN A CASE OF ILLEGAL
TAXATION, IS TO PAY THE TAX UNDER PROTEST OR WITH NOTICE OF SUIT, AND
THEN BRING AN ACTION AGAINST THE OFFICER WHO COLLECTED IT"); BAILEY V.
GEORGE, 259 U.S. 16, 20 (1922) ("THEY MIGHT HAVE PAID THE AMOUNT
ASSESSED UNDER PROTEST AND THEN BROUGHT SUIT AGAINST THE COLLECTOR  ...
.").  THIS VIEW OF CHEATHAM ALSO CORRESPONDS TO THAT OF THE COURT OF
APPEALS IN THIS CASE.  246 F.2D, AT 930.  SEE ALSO BUSHMIAER V. UNITED
STATES, 230 F.2D 146, 152-155 (DISSENTING OPINION). 

FN18  43 STAT. 336. 

FN19  I.R.C. (1954), SEC. 6331, 68A STAT. 783.  THE GOVERNMENT HAS
POSSESSED THE POWER OF DISTRAINT FOR ALMOST 170 YEARS.  SEE ACT OF MAR.
3, 1791, C. 15, SEC. 23, 1 STAT. 204. 

FN20  H.R. REP. NO. 179, 68TH CONG., 1ST SESS. 7.  THE SENATE
COMMITTEE ON FINANCE FILED A SIMILAR REPORT.  S. REP. NO. 398, 68TH
CONG., 1ST SESS. 8. 

THE REFERENCE TO R.S. SEC. 3224 IN THE HOUSE REPORT CLEARLY WAS MEANT
SIMPLY TO DEMONSTRATE THAT A DETERMINATION PRIOR TO PAYMENT BY WAY OF
AN INJUNCTION SUIT WAS NOT POSSIBLE BECAUSE OF THE STATUTORY BAR TO
SUCH A SUIT.  THIS ANTI-INJUNCTION PROVISION HAS BEEN LAW FOR MANY
DECADES.  SEE ACT OF MAR. 2, 1867, C. 169, SEC. 10, 14 STAT. 475.  IT
IS NOW SEC. 7421 OF THE INTERNAL REVENUE CODE OF 1954, 68A STAT. 876. 

FN21  SEE 65 CONG. REC. 2621, 2684, 8110; 67 CONG. REC. 525, 1144,
3529, 3755. 

AS WE HAVE INDICATED, SOME OF THESE REMARKS WERE MADE DURING DEBATES
OVER PROPOSED CHANGES IN THE BOARD OF TAX APPEALS LEGISLATION DURING
THE MIDDLE OF THE 1920'S, BUT THEY ALL REFLECT CONGRESS' UNDERSTANDING
OF THE PRE-1924 PROCEDURE AND OF THE CHANGES WHICH WERE MADE BY
ESTABLISHMENT OF THE BOARD.  FOR EXAMPLE, SHORTLY AFTER THE BOARD
LEGISLATION WAS PASSED, CONGRESS CONSIDERED AND REJECTED A PROPOSAL TO
MAKE APPEAL TO THE BOARD AND THEN TO A CIRCUIT COURT OF APPEALS THE
TAXPAYER'S SOLE REMEDY.  IN THE COURSE OF THE DEBATE, A NUMBER OF
SENATORS DISCUSSED AT LENGTH THE TAXPAYER'S RIGHT TO BRING A REFUND
ACTION IN COURT.  SOME OF THE CITED QUOTATIONS ARE TAKEN FROM THAT
DEBATE.  THE FOLLOWING REMARK OF SENATOR FLETCHER IS ALSO
ILLUMINATING: 

"MR. FLETCHER.  ...  I THINK THE MOST IMPORTANT RIGHT THAT IS
PRESERVED HERE  ...  IS THE RIGHT TO GO INTO THE DISTRICT COURT BY THE
TAXPAYER UPON THE PAYMENT OF THE TAX.  I DO NOT THINK THAT WE OUGHT TO
ALLOW HIM TO DO THAT UNLESS HE DOES PAY THE TAX; BUT WHEN HE PAYS THE
TAX HIS RIGHT TO GO INTO THE DISTRICT COURT IS PRESERVED."  67 CONG.
REC. 3529. 

SEE ALSO THE MATERIALS QUOTED IN NOTE 24, INFRA. 

FN22  SEE I.R.C. (1954), SEC. 6213(A), 68A STAT. 771.  FOR THE
PERTINENT 1924 LEGISLATION, SEE REVENUE ACT OF 1924, C. 234, SEC. 274,
43 STAT. 297. 

FN23  IN OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716, 721,
THIS COURT EXPRESSED THE VIEW THAT THE BOARD "WAS CREATED BY CONGRESS
TO PROVIDE TAXPAYERS AN OPPORTUNITY TO SECURE AN INDEPENDENT REVIEW
...  IN ADVANCE OF THEIR PAYING THE TAX FOUND BY THE COMMISSIONER TO BE
DUE.  BEFORE THE ACT OF 1924 THE TAXPAYER COULD ONLY CONTEST THE
COMMISSIONER'S DETERMINATION OF THE AMOUNT OF THE TAX AFTER ITS
PAYMENT."    FN24  THERE ARE A FEW INTERCHANGES AMONG SENATORS WHICH
MIGHT BE CONSTRUED TO INDICATE THAT THEY WERE THINKING IN TERMS OF
PREVENTING DISTRAINT, BUT THE SAME PASSAGES DEMONSTRATE EVEN MORE
CLEARLY THAT THESE SENATORS ALSO INTENDED TO ELIMINATE THE NECESSITY OF
FULL PAYMENT AS A PREREQUISITE TO SUIT.  FOR EXAMPLE, THE FOLLOWING
DEBATE OCCURRED WHEN SENATOR REED, WHO WAS A MEMBER OF THE COMMITTEE ON
FINANCE, PROPOSED AN AMENDMENT WHICH WOULD HAVE PERMITTED A TAXPAYER TO
REFUSE TO PAY THE DEFICIENCY EVEN AFTER THE BOARD HAD RULED AGAINST HIM
AND WHICH WOULD HAVE REQUIRED THE GOVERNMENT TO SUE IN A DISTRICT
COURT. 

"MR. REED OF MISSOURI.  ... 

     *         *         * *         * 

"THE PRACTICE, AS I UNDERSTAND IT, HAS BEEN TO REQUIRE THE TAXPAYER
TO PAY IN THE AMOUNT OF THE INCREASED ASSESSMENT, AND THEN TO ALLOW HIM
TO GET IT BACK IF HE CAN.  IN ADDITION TO THIS, DISTRAINTS FREQUENTLY
HAVE BEEN ISSUED SEIZING THE PROPERTY OF THE CITIZEN  ...  . 

     *         *    *         *         * 

"MR. SWANSON.  WHAT ARE THE PROCESSES BY WHICH A CITIZEN WHO HAS
OVERPAID CAN GET BACK HIS MONEY UNDER THE EXISTING LAW? 

"MR. REED OF MISSOIRI.  AS I UNDERSTAND IT, HE PAYS HIS TAX.  THEN HE
MAKES AN APPLICATION FOR A RETURN OF IT.  THAT IS HEARD THROUGH THE
LONG, TROUBLESOME PROCESSES WHICH EXIST  ...  .  WHEN THE TREASURY IS
SATISFIED  ... THE TAXPAYER CAN GO INTO COURT AT THAT TIME.  IN THE
MEANTIME, HOWEVER, HE HAS HAD TO PAY HIS MONEY. 

     *         *       *         *         * 

"MR. SWANSON.  DOES THE SENATOR MEAN THAT IF THERE IS A DISPUTE, THE
TAX IS NOT ASSESSED PERMANENTLY AGAINST HIM UNTIL THE BOARD REACHES ITS
FINAL DECISION? 

"MR. SMOOT.  UNTIL THE BOARD OF APPEALS FINALLY PASSES UPON IT, AND
AFTER THAT IF HE WANTS TO GO TO COURT HE CAN DO SO, BUT IN ORDER TO GO
TO COURT HE MUST PAY HIS ASSESSMENT. 

"MR. REED OF MISSOURI.  HE MUST PAY IT BEFORE HE CAN HAVE A TRIAL IN
COURT. 

     *         *         *         *         * 

"MR. WALSH OF MONTANA.  MR. PRESIDENT, THE HARDSHIPS  ...  IN
CONNECTION WITH THE COLLECTION OF THESE TAXES IS A VERY REAL ONE  ...
.  AT LEAST TWO OR THREE INSTANCES HAVE COME UNDER MY NOTICE, AND MY
ASSISTANCE HAS BEEN ASKED IN CASES WHERE THE ASSESSING OFFICERS HAVE
...  ASSESSED AGAINST THE TAXPAYER DELINQUENT TAXES OF SUCH AN AMOUNT
THAT HE FOUND IT IMPOSSIBLE TO PAY IN ADVANCE AND SECURE REDRESS
THROUGH THE ORDINARY PROCEEDING IN A COURT OF LAW, SIMPLY BECAUSE IT
WOULD BANKRUPT HIM TO ENDEAVOR TO RAISE THE MONEY.  HE WAS THEREFORE
OBLIGED TO SUFFER A DISTRAINT  ...  . 

     *         *         *         *       * 

"  ...  AFTER THE BOARD OF REVIEW DETERMINES THE MATTER, IT SEEMS TO
ME, THAT IS AS FAR AS THE GOVERNMENT OUGHT TO BE INTERRUPTED IN THE
MATTER OF THE COLLECTION OF ITS REVENUES.  THEN THE TAXPAYER WOULD BE
OBLIGED TO PAY THE TAX AND TAKE HIS ORDINARY ACTION AT LAW TO RECOVER
WHATEVER HE CLAIMS WAS EXACTED OF HIM ILLEGALLY."  65 CONG. REC. 8109
8114. 

A SOMEWHAT SIMILAR EXCHANGE OCCURRED DURING THE 1926 DEBATE OVER A
PROPOSAL TO PROHIBIT REFUND SUITS WHERE AN APPEAL HAD BEEN TAKEN TO THE
BOARD. 

"MR. REED OF MISSOURI.  ...  NOW JUST ONE FURTHER QUESTION: 

"WHY IS IT THAT A TAXPAYER CAN NOT BE GIVEN HIS DAY IN COURT BY
DIRECT ACTION, WITHOUT FIRST REQUIRING HIM TO PAY THE TAX THAT IS
ASSESSED?  I KNOW I SHALL BE MET WITH THE STATEMENT THAT IT WOULD MEAN
INTERMINABLE DELAY TO THE GOVERNMENT; BUT IT FREQUENTLY HAPPENS THAT
THE TAX THAT IS ASSESSED IS RUINOUS, AND THAT THE TAXPAYER CAN NOT
RAISE THE MONEY  ...  . 

     *         *         *         *         * 

"IN MY OWN PERSONAL EXPERIENCE I HAVE HAD TWO CLIENTS WHO WERE
ABSOLUTELY RUINED BY ASSESSMENTS THAT WERE UNJUST AND THAT COULD NOT
HAVE STOOD UP IN A COURT OF JUSTICE  ...  .  AND IT WAS NO PROTECTION
TO THEM TO SAY, 'PAY YOUR TAXES AND THEN GO INTO COURT,' BECAUSE THEY
DID NOT HAVE THE MONEY TO PAY THE TAXES AND COULD NOT RAISE THE MONEY
TO PAY THE TAXES AND BE OUT OF THE MONEY TWO OR THREE YEARS. 

     *         *         *         *       * 

"  ...  I THINK THE BILL NEEDS JUST ONE MORE AMENDMENT IN THIS
PARTICULAR, AND THAT IS A PROVISION THAT ANY CITIZEN CAN GO INTO COURT
WITHOUT PAYING ANY TAX AND RESIST THE PAYMENT.  IN THE MEANTIME I AGREE
THAT THE GOVERNMENT FOR ITS OWN PROTECTION OUGHT TO BE ALLOWED,
PERHAPS, IN SUCH A CASE AS THAT TO ISSUE A DISTRAINT.  BUT THE IDEA
THAT A MAN MUST FIRST PAY HIS MONEY AND THEN SUE TO GET IT BACK IS
ANOMALY IN THE LAW."  67 CONG. REC. 3530-3533. 

SENATOR REED LATER PROPOSED THAT THE APPEAL FROM THE BOARD BE TO THE
DISTRICT COURT INSTEAD OF TO THE CIRCUIT COURT OF APPEALS, AND SENATOR
WADSWORTH, A MEMBER OF THE FINANCE COMMITTEE, ASKED: 

"DOES THE SENATOR NOT THINK THAT OTHER PROVISION IN THE BILL WHICH
PERMITS THE TAXPAYER TO TAKE HIS CASE TO THE DISTRICT COURT -
CONDITIONED, OF COURSE, UPON HIS PAYING THE ASSESSMENT - MEETS THE
SITUATION?"  67 CONG. REC. 3755. 

FN25  S. 1569, 81ST CONG., 1ST SESS.; S. 384, 82D CONG., 1ST SESS.;
H.R. 150 AND H.R. 246, 83D CONG., 1ST SESS. 

FN26  48 STAT. 955, AS AMENDED, 28 U.S.C. SECS. 2201, 2202. 

FN27  49 STAT. 1027. 

FN28  S. REP. NO. 1240, 74TH CONG., 1ST SESS. 11. 

FN29  "SHOULD THE DECLARATORY JUDGMENT ACT BE HELD TO APPLY TO TAX
CASES IT WILL MEAN A COMPLETE REVERSAL OF OUR PRESENT SCHEME OF
TAXATION.  THE PRINCIPLE OF 'PAY FIRST AND LITIGATE LATER' WILL BE
CHANGED TO 'LITIGATE FIRST AND PAY LATER.'  THIS PRINCIPLE HAS NEVER
BEFORE BEEN DEPARTED FROM."  WIDEMAN, APPLICATION OF THE DECLARATORY
JUDGMENT ACT TO TAX SUITS, 13 TAXES 539, 540. 

FN30  FOR SOME PRACTITIONERS' VIEWS ON THE DESIRABILITY OF LITIGATING
TAX CASES IN FEDERAL DISTRICT COURTS, SEE DOCKERY, REFUND SUITS IN
DISTRICT COURTS, 31 TAXES 523; YEATMAN, TAX CONTROVERSIES, 10 TEX. B.J.
9. 

FN31  THESE PROBLEMS HAVE ALREADY OCCURRED TO THE BAR.  SEE RIORDAN,
MUST YOU PAY FULL TAX ASSESSMENT BEFORE SUING IN THE DISTRICT COURT?  8
J. TAX.  179, 181. 

FN32  "SEC.  7422.  CIVIL ACTIONS FOR REFUND. 

     *         *         *         *     * 

"(E)  STAY OF PROCEEDINGS.  - IF THE SECRETARY OR HIS DELEGATE PRIOR
TO THE HEARING OF A SUIT BROUGHT BY A TAXPAYER IN A DISTRICT COURT OR
THE COURT OF CLAIMS FOR THE RECOVERY OF ANY INCOME TAX, ESTATE TAX, OR
GIFT TAX (OR ANY PENALTY RELATING TO SUCH TAXES) MAILS TO THE TAXPAYER
A NOTICE THAT A DEFICIENCY HAS BEEN DETERMINED IN RESPECT OF THE TAX
WHICH IS THE SUBJECT MATTER OF TAXPAYER'S SUIT, THE PROCEEDINGS IN
TAXPAYER'S SUIT SHALL BE STAYED DURING THE PERIOD OF TIME IN WHICH THE
TAXPAYER MAY FILE A PETITION WITH THE TAX COURT FOR A REDETERMINATION
OF THE ASSERTED DEFICIENCY, AND FOR 60 DAYS THEREAFTER.  IF THE
TAXPAYER FILES A PETITION WITH THE TAX COURT, THE DISTRICT COURT OR THE
COURT OF CLAIMS, AS THE CASE MAY BE, SHALL LOSE JURISDICTION OF
TAXPAYER'S SUIT TO WHATEVER EXTENT JURISDICTION IS ACQUIRED BY THE TAX
COURT OF THE SUBJECT MATTER OF TAXPAYER'S SUIT FOR REFUND.  IF THE
TAXPAYER DOES NOT FILE A PETITION WITH THE TAX COURT FOR A
REDETERMINATION OF THE ASSERTED DEFICIENCY, THE UNITED STATES MAY
COUNTERCLAIM IN THE TAXPAYER'S SUIT, OR INTERVENE IN THE EVENT OF A
SUIT AS DESCRIBED IN SUBSECTION (C) (RELATING TO SUITS AGAINST OFFICERS
OR EMPLOYEES OF THE UNITED STATES), WITHIN THE PERIOD OF THE STAY OF
PROCEEDINGS NOTWITHSTANDING THAT THE TIME FOR SUCH PLEADING MAY HAVE
OTHERWISE EXPIRED.  THE TAXPAYER SHALL HAVE THE BURDEN OF PROOF WITH
RESPECT TO THE ISSUES RAISED BY SUCH COUNTERCLAIM OR INTERVENTION OF
THE UNITED STATES EXCEPT AS TO THE ISSUE OF WHETHER THE TAXPAYER HAS
BEEN GUILTY OF FRAUD WITH INTENT TO EVADE TAX.  THIS SUBSECTION SHALL
NOT APPLY TO A SUIT BY A TAXPAYER WHICH, PRIOR TO THE DATE OF ENACTMENT
OF THIS TITLE, IS COMMENCED, INSTITUTED, OR PENDING IN A DISTRICT COURT
OR THE COURT OF CLAIMS FOR THE RECOVERY OF ANY INCOME TAX, ESTATE TAX,
OR GIFT TAX (OR ANY PENALTY RELATING TO SUCH TAXES)."  68A STAT. 877. 

THE POSSIBILITY OF DUAL JURISDICTION IN THIS TYPE OF SITUATION WAS
CONFIRMED BY CASES SUCH AS CAMP V. UNITED STATES, 44 F.2D 126, AND OHIO
STEEL FOUNDRY CO. V. UNITED STATES, 69 CT. CL. 158, 38 F.2D 144.  SEE
H.R. REP. NO. 1337, 83D CONG., 2D SESS. 109, A431; S. REP. NO. 1662,
83D CONG., 2D SESS. 148, 610. 

FN33  FOR ADDITIONAL EVIDENCE OF RECENT CONGRESSIONAL UNDERSTANDING
OF THE JURISDICTIONAL REQUIREMENT OF SEC. 1346(A)(1), SEE THE HOUSE
REPORT WHICH EXPLAINED THE 1954 AMENDMENT ABOLISHING THE $10,000
LIMITATION ON TAX SUITS AGAINST THE UNITED STATES, 68 STAT. 589.  AFTER
EXPLAINING THE TAXPAYER'S RIGHT TO CONTEST A DEFICIENCY IN THE TAX
COURT, THE REPORT STATES:  "THE TAXPAYER MAY, HOWEVER, ELECT TO PAY HIS
TAX AND THEREAFTER BRING SUIT TO RECOVER THE AMOUNT CLAIMED TO HAVE
BEEN ILLEGALLY EXACTED."  H.R. REP. NO. 659, 83D CONG., 1ST SESS. 2. 

FN34  PETITIONER CITES TWO EARLIER CASES IN WHICH THE GOVERNMENT
FAILED TO RAISE THE JURISDICTIONAL ISSUE.  BOWERS V. KERBAUGH-EMPIRE
CO., 271 U.S. 170 (1926); COOK V. TAIT, 265 U.S. 47 (1924).  THE
GOVERNMENT DISTINGUISHES THESE CASES ON THE GROUND THAT, ALTHOUGH THE
TOTAL TAX FOR THE YEAR HAS NOT BEEN PAID, THE FULL AMOUNT DUE AT THE
TIME OF SUIT HAD BEEN PAID.  THIS SITUATION OCCURRED BECAUSE UNDER SEC.
250(A) OF THE REVENUE ACT OF 1921, C. 136, 42 STAT. 264, THE TAX WAS
PAID IN FOUR INSTALLMENTS, AND THE PLAINTIFFS IN COOK AND BOWERS
APPARENTLY HAD PAID THE DUE INSTALLMENTS.  WHILE WE DO NOT SUGGEST THAT
THE STATUTE WILL SUPPORT THIS TYPE OF DISTINCTION, ADOPTION OF IT BY
THE GOVERNMENT OR BY THE BAR WOULD NOT IN ANY WAY IMPAIR THE
SUBSTANTIAL CONSISTENCY OF THE VIEW THAT FULL PAYMENT HAS FOR MANY
DECADES BEEN A PREREQUISITE TO SUIT IN DISTRICT COURT.  AN ERROR AS TO
THE APPLICABILITY OF A PRINCIPLE TO A UNIQUE FACTUAL SITUATION DOES NOT
MEAN THAT THE PRINCIPLE ITSELF HAS BEEN REJECTED. 

FN35  THE GROUND FOR THE DECISION MAY HAVE BEEN THAT THE DISTRICT
COURT HAD NO JURISDICTION BECAUSE THE TAXPAYER WAS CONTESTING THE
LEGALITY OF THE BALANCE OF THE ASSESSMENT BEFORE THE BOARD OF TAX
APPEALS. 

FN36  IN WELCOMING THE MEMBERS OF THE BOARD OF TAX APPEALS ON JULY
16, 1924, UNDER SECRETARY WINSTON DESCRIBED THE DIFFICULTIES WHICH HAD
ARISEN IN THE PAST. 

"  ...  UNDER THE LAW A TAX ONCE ASSESSED HAD TO BE PAID BY THE
TAXPAYER AND THEN HIS REMEDY WAS TO SUE FOR ITS RECOVERY.  HE MUST
FIRST FIND THE CASH FOR A LIABILITY FOR WHICH HE MAY NOT HAVE PROVIDED
...  .  THE FIRST INTEREST OF ALL OF THE PEOPLE IS, OF COURSE, THAT THE
GOVERNMENT CONTINUE TO FUNCTION, AND TO DO THIS IT MUST HAVE THE MEANS
OF PROMPT COLLECTION OF THE NECESSARY SUPPLIES TO KEEP IT GOING, THAT
IS, TAXES.  THE METHOD WAS, THEREFORE, THE DETERMINATION BY THE
COMMISSIONER OF THE AMOUNT OF TAX DUE, ITS COLLECTION AND SUIT TO
RECOVER  ...  .  THE TAX AS ASSESSED HAD TO BE PAID AND THE TAXPAYER
WAS LEFT TO HIS REMEDY IN THE COURTS.  THE PAYMENT OF THE TAX WAS OFTEN
A GREAT HARDSHIP ON THE TAXPAYER, MEANING IN GENERAL THAT HE HAD TO
RAISE THE CASH FOR AN UNEXPECTED LIABILITY WHICH MIGHT NOT BE LAWFULLY
DUE."  TREAS. DEPT. PRESS RELEASE, JULY 16, 1924.  SEE ALSO REMARKS BY
UNDER SECRETARY WINSTON IN ADDRESSING THE SEVENTEENTH ANNUAL CONFERENCE
OF THE NATIONAL TAX ASSOCIATION IN SEPTEMBER 1924, PROCEEDINGS OF
SEVENTEENTH NATIONAL CONFERENCE 271. 

IN COMMENTING UPON THE BOARD OF TAX APPEALS LEGISLATION, WHICH
CONTEMPLATED LEAVING THE TAXPAYER TO HIS DISTRICT COURT REMEDY IF THE
DECISION OF THE BOARD WAS ADVERSE, SECRETARY OF THE TREASURY MELLON
STATED:  "THE TAXPAYER, IN THE EVENT THAT DECISION OF THE BOARD IS
AGAINST HIM, WILL HAVE TO PAY THE TAX ACCORDING TO THE ASSESSMENT AND
HAVE RECOURSE TO THE COURTS  ...  ."  67 CONG. REC. 552. 

ON SEPTEMBER 17, 1924, THE FIRST CHAIRMAN OF THE BOARD, CHARLES D.
HAMEL, READ A PAPER BEFORE THE SEVENTEENTH ANNUAL CONFERENCE OF THE
NATIONAL TAX ASSOCIATION ON TAXATION WHICH CONTAINED THE FOLLOWING
REMARK:  "PRIOR TO THE ENACTMENT OF THE ACT OF 1924  ...  IF THE
DECISION ON THE APPEAL TO THE COMMISSIONER WAS IN FAVOR OF THE
GOVERNMENT, THE TAXPAYER, ONLY AFTER PAYMENT OF THE TAX, HAD THE RIGHT
TO PROTEST THE CORRECTNESS OF THE DECISION IN THE COURTS  ...  ." 
PROCEEDINGS 277-278. 

ONE OF THE CLEAREST STATEMENTS OF THE RULE BY A COMMENTATOR IS TO BE
FOUND IN BICKFORD, COURT PROCEDURE IN FEDERAL TAX CASES (REV. ED. 1929)
3, 7-8, 9, 119. 

"THERE ARE, HOWEVER, CERTAIN OTHER CONDITIONS WHICH MUST BE COMPLIED
WITH BEFORE A SUIT IS MAINTAINABLE UNDER THIS SECTION.  BRIEFLY STATED,
THESE ARE AS FOLLOWS: 

"1.  THE TAX MUST HAVE BEEN PAID. 

"2.  AFTER PAYMENT, THE TAXPAYER MUST HAVE FILED WITH THE
COMMISSIONER  ...  A SUFFICIENT CLAIM FOR THE REFUND OF THE TAXES SUED
FOR. 

     *         *        *         *         * 

"THE FIRST REQUIREMENT IS OBVIOUS.  WE HAVE, IN THE PRECEDING
PORTIONS OF THIS VOLUME, FOUND THAT A PROCEEDING COMMENCED IN THE BOARD
OF TAX APPEALS IS THE ONLY EXCEPTION TO THE RULE THAT NO REVIEW BY THE
COURTS IS PERMISSIBLE AT COMMON LAW OR UNDER THE STATUTES, UNTIL THE
TAX HAS BEEN PAID AND THE GOVERNMENT ASSURED OF ITS REVENUE."  ID., AT
119. 

SEE ALSO HAMEL, THE UNITED STATES BOARD OF TAX APPEALS (1926), 10;
KLEIN, FEDERAL INCOME TAXATION (1929), 1372, 1642, 1643; MELLON,
TAXATION:  THE PEOPLE'S BUSINESS (1924), 62-63; BALLANTINE, FEDERAL
INCOME TAX PROCEDURE, LECTURES ON TAXATION, COLUMBIA UNIVERSITY
SYMPOSIUM (1932), 179, 192-193; CASPERS, ASSESSMENT OF ADDITIONAL
INCOME TAXES FOR PRIOR YEARS, 1 NAT. INCOME TAX MAG.  (OCT. 1923), 12;
GRAUPNER, THE OPERATION OF THE BOARD OF TAX APPEALS, 3 NAT. INCOME TAX
MAG.  (1925), 295.  BUT SEE SMITH, NATIONAL TAXES, THEIR COLLECTION,
AND RIGHTS AND REMEDIES OF THE TAXPAYER, 8 GEO. L.J. 1, 3 (APR. 1920). 
SEE ALSO BEAMAN, WHEN NOT TO GO TO THE TAX COURT:  ADVANTAGES AND
PROCEDURES IN GOING TO THE DISTRICT COURT, 7 J. TAX (1957), 356 ("THE
BUSHMIAER CASE PERMITTING SUIT FOR PART OF THE TAX  ... RUNS COUNTER TO
A LONG TRADITION OF ADMINISTRATIVE PRACTICE AND INTERPRETATION  ...
."); RUDICK AND WENDER, FEDERAL INCOME TAXATION, 32 N.Y.U.L. REV.
(1957), 751, 777-778 ("IT IS GENERALLY SAID THAT A TAXPAYER HAS TWO
REMEDIES IF HE DISAGREES WITH A DETERMINATION OF THE COMMISSIONER.  HE
MAY PAY THE DEFICIENCY, FILE A CLAIM FOR REFUND, AND SUE FOR THE TAX IN
THE DISTRICT COURT  ...  . ALTERNATIVELY, THE TAXPAYER MAY PETITION THE
TAX COURT FOR REVIEW OF A DEFICIENCY PRIOR TO PAYMENT.  THE RECENT
BUSHMIAER CASE IS A THIRD ALTERNATIVE  ...  .  THE BUSHMIAER CASE
CONFLICTS WITH MORE THAN THIRTY YEARS OF EXPERIENCE IN THE
ADMINISTRATION AND COLLECTION OF TAXES.").  (FOOTNOTE OMITTED.) 

FN37  PETITIONER CITES A NUMBER OF CASES IN SUPPORT OF HIS ARGUMENT
THAT NEITHER THE BAR NOR THE GOVERNMENT HAS EVER ASSUMED THAT FULL
PAYMENT OF THE TAX IS A JURISDICTIONAL PREREQUISITE TO SUIT FOR
RECOVERY.  THE FOLLOWING FACTORS ROB THESE CASES OF THE SIGNIFICANCE
ATTRIBUTED TO THEM BY THE PETITIONER: 

(A)  A NUMBER OF THEM, ALTHOUGH CITED BY PETITIONER IN HIS PETITION
FOR REHEARING, WERE LATER CONCEDED BY HIM, AFTER HIS EXAMINATION OF
GOVERNMENT FILES, NOT TO BE IN POINT. 

(B)  A NUMBER OF THE CITED CASES INVOLVED EXCISE TAXES.  THE
GOVERNMENT SUGGESTS - AND WE AGREE - THAT EXCISE TAX DEFICIENCIES MAY
BE DIVISIBLE INTO A TAX ON EACH TRANSACTION OR EVENT, AND THEREFORE
PRESENT AN ENTIRELY DIFFERENT PROBLEM WITH RESPECT TO THE FULL-PAYMENT
RULE. 

(C)  THE CASES ARISING AFTER 1940 ARE INSIGNIFICANT.  ONCE THE SECOND
CIRCUIT COURT OF APPEALS HAD RULED AGAINST THE GOVERNMENT IN COATES,
TAXPAYERS WOULD NATURALLY BE MUCH MORE INCLINED TO SUE BEFORE FULL
PAYMENT, AND THE GOVERNMENT MIGHT WELL DECIDE NOT TO RAISE THE
OBJECTION IN A PARTICULAR CASE FOR REASONS RELATING TO LITIGATION
STRATEGY. 

(D)  IN SOME OF THE CASES THE ONLY AMOUNT REMAINING UNPAID AT THE
TIME OF SUIT WAS INTEREST.  AS WE HAVE INDICATED, THE STATUTE LENDS
ITSELF TO A CONSTRUCTION WHICH WOULD PERMIT SUIT FOR THE TAX AFTER FULL
PAYMENT THEREOF WITHOUT PAYMENT OF ANY PART OF THE INTEREST. 

(E)  IN SOME OF THE CASES THE GOVERNMENT WAS NOT LEGALLY ENTITLED TO
COLLECT THE UNPAID TAX AT THE TIME OF SUIT, EITHER BECAUSE THE TAX
SYSTEM AT THE TIME PERMITTED INSTALLMENT PAYMENT (SEE NOTE 34, SUPRA),
BECAUSE THE UNPAID PORTION HAD NOT YET BEEN ASSESSED, OR FOR SOME OTHER
REASON.  ALTHOUGH THE STATUTE MAY NOT SUPPORT ANY DISTINCTION BASED ON
FACTS OF THIS NATURE, IT IS QUITE UNDERSTANDABLE THAT A TAXPAYER MIGHT
HAVE PREDICATED A SUIT UPON THE THEORY THAT THE DISTINCTION WAS
MEANINGFUL AND THAT THE GOVERNMENT MIGHT NOT HAVE CONTESTED IT, WHETHER
BECAUSE IT AGREED OR FOR TACTICAL REASONS. 

IN THE LIGHT OF THESE CONSIDERATIONS, WE REGARD THE FOLLOWING PRE
1941 CASES AS IMMATERIAL: BALDWIN V. HIGGINS, 100 F.2D 405 (C.A.2D CIR.
1938)(PETITIONER CONCEDES); SAMPSON V. WELCH, 23 F. SUPP. 271 (D.C.S.D.
CAL. 1938)(SAME); CHARLESTON LUMBER CO. V. UNITED STATES, 20 F. SUPP.
83 (D.C.S.D. W.VA. 1937)(SAME); STERLING V. HAM, 3 F. SUPP. 386 (D.C.
ME. 1933)(SAME); FARMERS' LOAN & TRUST CO. V. BOWERS, 15 F.2D 706
(D.C.S.D.N.Y. 1926), MODIFIED, 22 F.2D 464 (1927), REV'D, 29 F.2D 14
(C.A.2D CIR. 1928)(SAME); HEINEMANN CHEMICAL CO. V. HEINER, 36-4 CCH
FED. TAX SERV. PARA. 9302 (D.C.W.D. PA. 1936), REV'D, 92 F.2D 344 (C.A.
3D CIR. 1937) (ONLY INTEREST UNPAID); WELCH V. HASSETT, 15 F. SUPP. 692
(D.C. MASS. 1936), REV'D, 90 F.2D 833 (C.A. 1ST CIR. 1937), AFF'D, 303
U.S. 303 (1938)(FULL ASSESSMENT PAID); LEAVITT V. HENDRICKSEN, 37-4 CCH
FED. TAX SERV. PARA. 9312 (D.C.W.D. WASH. 1937)(NO UNPAID ASSESSMENT);
BOWERS V. KERBAUGH-EMPIRE CO., 271 U.S. 170 (1926)(ALL DUE INSTALLMENTS
PAID); COOK V. TAIT, 265 U.S. 47 (1924)(SAME). 

FOUR PRE-1941 CASES REMAIN.  OF THESE, ONLY TWO ARE CLEARLY CASES IN
WHICH THE JURISDICTIONAL ISSUE WAS PRESENT AND NOT RAISED BY THE
GOVERNMENT.  TSIVOGLOU V. UNITED STATES, 31 F.2D 706 (C.A. 1ST CIR.
1929); THOMAS V. UNITED STATES, 85 CT. CL. 313, 18 F. SUPP. 942
(1937).  MCFADDEN V. UNITED STATES, 20 F. SUPP. 625 (D.C.E.D. PA.
1937), IS IN THE "DOUBTFUL" CATEGORY.  THERE THE COMMISSIONER HAD
GRANTED THE TAXPAYER AN EXTENSION OF TIME FOR PAYMENT OF 80% OF HIS
ASSESSMENT AND THE SUIT WAS FOR THE REMAINING 20%, WHICH HAD BEEN
PAID.  THE RELEVANT FACTS OF THE LAST CASE, PEERLESS PAPER BOX MFG. CO.
V. ROUTZAHN, 22 F.2D 459 (D.C.N.D. OHIO 1927), ARE SO UNCLEAR THAT THE
CASE MEANS NOTHING.  THE GOVERNMENT HAD APPLIED AN ADMITTED 1918
OVERPAYMENT TO A 1917 DEFICIENCY, BUT THE DEFICIENCY WAS GREATER THAN
THE OVERPAYMENT.  THE TAXPAYER SUED TO RECOVER THIS OVERPAYMENT, AND
WHETHER THERE HAD BEEN FULL PAYMENT AT THE TIME OF SUIT DEPENDS UPON
WHETHER THE SUIT IS REGARDED AS ONE FOR REFUND OF 1917 OR 1918 TAXES. 

NOR CAN WE AGREE ENTIRELY WITH PETITIONER'S EVALUATION OF A SECOND
GROUP OF PRE-1941 CASES - THOSE IN WHICH THE ISSUE ALLEGEDLY WAS
PRESENT AND THE GOVERNMENT DID RAISE IT BUT LOST.  FIVE OF THESE CASES
INVOLVED PRIMARILY THE TROUBLESOME CONCURRENT JURISDICTION PROBLEM THAT
AROSE BEFORE PASSAGE OF SEC. 7422(E) OF THE 1954 CODE WHEN A TAXPAYER
BOTH APPEALED TO THE TAX COURT AND BROUGHT SUIT IN A FEDERAL DISTRICT
COURT.  BRAMPTON WOOLEN CO. V. FIELD, 55 F.2D 325 (D.C.N.H. 1931),
REV'D, 56 F.2D 23 (C.A. 1ST CIR. 1932), CERT. DENIED, 287 U.S. 608;
CAMP V. UNITED STATES, 44 F.2D 126 (C.A. 4TH CIR. 1930); EMERY V.
UNITED STATES, 27 F.2D 992 (D.C.W.D. PA. 1928); OLD COLONY R. CO. V.
UNITED STATES, 27 F.2D 994 (D.C. MASS. 1928); OHIO STEEL FOUNDRY CO. V.
UNITED STATES, 69 CT. CL. 158, 38 F.2D 144 (1930).  IN ALL OF THESE
CASES EXCEPT CAMP, IT APPEARS THAT THE GOVERNMENT DID RAISE THE PART
PAYMENT QUESTION.  IT IS TRUE THAT THE CONTENTION DID NOT PREVAIL, BUT
THIS IS NOT VERY MEANINGFUL.  IN THE FIRST PLACE, THIS QUESTION WAS
QUITE SUBORDINATE TO THE MAJOR ISSUE, CONCURRENT JURISDICTION.  IN THE
SECOND PLACE, THE GOVERNMENT WON IN BRAMPTON ON ANOTHER JURISDICTIONAL
GROUND.   AND FINALLY, IN CONTRAST TO FLORA, IN BOTH CAMP AND OHIO
STEEL FOUNDRY THE FULL ASSESSMENT HAD BEEN PAID AT THE TIME SUIT WAS
BROUGHT; IT WAS ONLY LATER THAT AN ADDITIONAL DEFICIENCY WAS ASSERTED
BY THE COMMISSIONER. 

TO THESE CASES SHOULD BE ADDED RIVERSIDE HOSPITAL V. LARSON, 38-4 CCH
FED. TAX SERV.  PARA. 9542 (D.C.S.D. FLA. 1938), WHERE THE GOVERNMENT
RAISED THE FULL-PAYMENT QUESTION AND WON, AND SUHR V. UNITED STATES, 14
F.2D 227 (D.C.W.D. PA. 1926), AFF'D, 18 F.2D 81 (C.A. 3D CIR. 1927),
ANOTHER CONCURRENT JURISDICTION CASE WHERE THE GOVERNMENT RAISED THE
ISSUE AND WON, ALTHOUGH THE GROUNDS FOR THE DECISION ARE NOT ENTIRELY
CLEAR. 

THIS, THEN, IS HOW WE SEE THE PRE-1941 SITUATION:  OF 14 CASES
ORIGINALLY CITES AS BEING CASES IN WHICH THE JURISDICTIONAL ISSUE WAS
PRESENT BUT NOT RAISED BY THE GOVERNMENT, FIVE HAVE BEEN CONCEDED BY
PETITIONER NOT TO BE IN POINT; SIX, AND POSSIBLY SEVEN, ARE
DISTINGUISHABLE FOR VARIOUS REASONS; AND ONLY TWO, OR POSSIBLY THREE,
REMAIN.  OF FIVE CASES CITED AS BEING CASES IN WHICH THE JURISDICTIONAL
ISSUE WAS RAISED BY THE GOVERNMENT, ONLY ONE, COATES V. UNITED STATES,
111 F.2D 609 (C.A.2D CIR. 1940), OR AT MOST THREE, REALLY INVOLVED THE
FLORA QUESTION.  WHEN TO THESE ARE ADDED RIVERSIDE, WHERE THE
GOVERNMENT WON, SUHR, WHERE IT MAY HAVE WON, AND BRAMPTON WOOLEN CO.,
WHERE IT WON IN THE COURT OF APPEALS ON ANOTHER JURISDICTIONAL GROUND,
THE BOX SCORE IS AS FOLLOWS:  TWO OR THREE CASES IN WHICH THE
GOVERNMENT FAILED TO RAISE THE ISSUE; ONE, OR POSSIBLY THREE, CASES IN
WHICH THE GOVERNMENT ARGUED THE QUESTION AND LOST; ONE CASE IN WHICH IT
ARGUED THE QUESTION AND WON; ONE CASE IN WHICH IT ARGUED THE QUESTION
AND MAY HAVE WON; AND ONE CASE IN WHICH IT RAISED THE ISSUE AND
PREVAILED ON ANOTHER JURISDICTIONAL DEFENSE - A TOTAL OF NINE CASES AT
MOST IN WHICH THE ISSUE WAS PRESENTED, OUT OF WHICH THE GOVERNMENT
CONTESTED JURISDICTION IN SIX.  OF COURSE, THIS CALCULATION MAY NOT BE
PRECISE; BUT, IN VIEW OF THE MANY THOUSANDS OF TAX REFUND SUITS WHICH
HAVE BEEN BROUGHT DURING THE DECADES IN QUESTION, IT IS AN ACCURATE
ENOUGH APPROXIMATION TO REFLECT A GENERAL UNDERSTANDING OF THE
JURISDICTIONAL SIGNIFICANCE OF "PAY FIRST, LITIGATE LATER." 

IT WOULD BE BOOTLESS TO CONSIDER EACH OF THE POST-1940 CASES CITED BY
PETITIONER OR TO LIST THE MULTITUDE OF CASES CITED BY THE GOVERNMENT IN
WHICH THE JURISDICTIONAL ISSUE HAS BEEN RAISED.  AS WE HAVE STATED, WE
BELIEVE THESE CASES HAVE NO SIGNIFICANCE WHATSOEVER.  HOWEVER, PERHAPS
IT IS WORTH NOTING THAT ALL BUT A HANDFUL OF THE CASES WHICH
PETITIONER, IN THE PETITION FOR REHEARING, ASSERTED TO BE ONES IN WHICH
THE GOVERNMENT FAILED TO RAISE THE JURISDICTIONAL ISSUE WOULD BE
IMMATERIAL EVEN IF THEY WERE PRE-COATES.  THUS, FOR EXAMPLE, PETITIONER
HAS CONCEDED ERROR WITH RESPECT TO THREE CASES.  DICKSTEIN V. MCDONALD,
149 F. SUPP. 580 (D.C.M.D. PA. 1957), AFF'D, 255 F.2D 640 (C.A. 3D CIR.
1958); O'CONNOR V. UNITED STATES, 76 F. SUPP. 962 (D.C.S.D.N.Y. 1948);
TERRELL V. UNITED STATES, 64 F. SUPP.  418 (D.C.E.D. LA. 1946).  A
NUMBER OF THE CASES INVOLVED EXCISE TAXES.  E.G., GRIFFITHS DAIRY V.
SQUIRE, 138 F.2D 758 (C.A. 9TH CIR. 1943); AURICCHIO V. UNITED STATES,
49 F. SUPP.  184 (D.C.E.D.N.Y. 1943).  IN SOME OF THE CASES ONLY
INTEREST REMAINED UNPAID.  RAYMOND V. UNITED STATES, 58-1 U.S.T.C.
PARA. 9397 (D.C.E.D. MICH. 1958); HOGG V. ALLEN, 105 F. SUPP.  12
(D.C.M.D. GA. 1952).  AND SOME OF THE CASES AROSE IN THE THIRD CIRCUIT
AFTER A DECISION ADVERSE TO THE GOVERNMENT IN SIRIAN LAMP CO. V.
MANNING, 123 F.2D 776 (C.A. 3D CIR. 1941).  GALLAGHER V. SMITH, 223
F.2D 218 (1955); PETERS V. SMITH, 123 F. SUPP. 711 (D.C.E.D. PA.
1954), REV'D, 221 F.2D 721 (1955).  IT MIGHT BE NOTED ALSO THAT JONES
V. FOX, 162 F. SUPP.  449 (D.C. MD. 1957), CITED AS A CASE IN WHICH THE
GOVERNMENT ARGUED THE JURISDICTIONAL QUESTION AND LOST, WAS AN EXCISE
TAX CASE IN WHICH THE COURT DISTINGUISHED OUR PRIOR DECISION IN FLORA
BECAUSE OF THE DIVISIBILITY OF THE EXCISE TAX.  ANOTHER SUCH DECISION
DURING THE PRE-1941 PERIOD WAS FRIEBELE V. UNITED STATES, 20 F. SUPP.
492 (D.C.N.J. 1937). 

FN38  PETITIONER POINTS OUT THAT THE TAX COURT HAS NO JURISDICTION
OVER EXCISE TAX CASES.  SEE 9 MERTENS, LAW OF FEDERAL INCOME TAXATION
(ZIMET REV. 1958), SEC. 50.08.  BUT THIS FACT PROVIDES NO POLICY
SUPPORT FOR HIS POSITION, SINCE, AS WE HAVE NOTED, EXCISE TAX
ASSESSMENTS MAY BE DIVISIBLE INTO A TAX ON EACH TRANSACTION OR EVENT,
SO THAT THE FULL-PAYMENT RULE WOULD PROBABLY REQUIRE NO MORE THAN
PAYMENT OF A SMALL AMOUNT.  SEE NOTE 37, SUPRA. 

FN39  OF THIS $446,673,640, DISTRICT COURT SUITS INVOLVED
$222,177,920; COURT OF CLAIMS SUITS, $220,247,436; AND STATE COURT
SUITS, $4,248,284. 

FN40  SEE NOTE 22, SUPRA. 

FN41  THE PRACTICAL EFFECTS WHICH MIGHT RESULT FROM ACCEPTANCE OF
PETITIONER'S ARGUMENT ARE SKETCHED IN LOWITZ, FEDERAL TAX REFUND SUITS
AND PARTIAL PAYMENTS, 9 THE DECALOGUE J. 9, 10: 

"PERMITTING REFUND SUITS AFTER PARTIAL PAYMENT OF THE TAX ASSESSMENT
WOULD BENEFIT MANY TAXPAYERS.   SUCH A LAW WOULD BE OPEN TO WIDE ABUSE
AND WOULD PROBABLY SERIOUSLY IMPAIR THE GOVERNMENT'S ABILITY TO COLLECT
TAXES.  MANY TAXPAYERS, WITHOUT LEGITIMATE GROUNDS FOR CONTESTING AN
ASSESSMENT, WOULD MAKE A TOKEN PAYMENT AND SUE FOR REFUND, HOPING AT
LEAST TO REDUCE THE AMOUNT THEY WOULD ULTIMATELY HAVE TO PAY.  IN
JURISDICTIONS WHERE THE DISTRICT COURT IS CONSIDERED TO BE A
'TAXPAYER'S COURT' MOST TAXPAYERS WOULD USE THAT FORUM INSTEAD OF THE
TAX COURT.  CONCEIVABLY SUCH LEGISLATION COULD CAUSE THE CHAOTIC TAX
COLLECTION SITUATIONS WHICH EXIST IN SOME EUROPEAN COUNTRIES, SINCE
THERE WOULD BE STRONG IMPETUS TO A POLICY OF PAYING A LITTLE AND TRYING
TO SETTLE THE BALANCE." 

FN42  SEE HELVERING V. MITCHELL, 303 U.S. 391, 399; TREAS. REGS. ON
PROCEDURAL RULES (1954 CODE) SEC. 601.103(A). 

FN43  SEE RIORDAN, MUST YOU PAY FULL TAX ASSESSMENT BEFORE SUING IN
THE DISTRICT COURT?  8 J. TAX.  179, 181: 

"1.  IF THE GOVERNMENT IS FORCED TO USE THESE REMEDIES (DISTRAINT) ON
A LARGE SCALE, IT WILL AFFECT ADVERSELY TAXPAYERS' WILLINGNESS TO
PERFORM UNDER OUR VOLUNTARY ASSESSMENT SYSTEM. 

"2.  IT WILL PUT THE BURDEN ON THE GOVERNMENT TO SEEK OUT FOR SEIZURE
THE PROPERTY OF EVERY TAXPAYER WHO CHOOSES TO SUE FOR THE REFUND OF A
PARTIAL PAYMENT.  OFTEN, THE GOVERNMENT WILL NOT BE ABLE TO DO THIS
WITHOUT EXTRAORDINARY AND COSTLY EFFORT AND IN SOME CASES IT MAY NOT BE
ABLE TO DO IT AT ALL. 

"3.  THE USE OF THE DRASTIC-COLLECTION REMEDIES WOULD OFTEN CAUSE
INCONVENIENCE AND PERHAPS HARDSHIP TO THE CREDITORS, DEBTORS,
EMPLOYERS, EMPLOYEES, BANKS AND OTHER PERSONS DOING BUSINESS WITH THE
TAXPAYER." 

MR. JUSTICE FRANKFURTER. 

I SHOULD LIKE TO APPEND A WORD TO MY BROTHER WHITTAKER'S OPINION,
WITH WHICH I ENTIRELY AGREE. 

WHILE DOBSON V. COMMISSIONER, 320 U.S. 489, IS NO LONGER LAW, THE
OPINION OF THE MUCH LAMENTED MR. JUSTICE JACKSON, BASED AS IT WAS ON
HIS GREAT EXPERIENCE IN TAX LITIGATION, HAS NOT LOST ITS FORCE INSOFAR
AS IT LAID BARE THE COMPLEXITIES AND PERPLEXITIES FOR JUDICIAL
CONSTRUCTION OF TAX LEGISLATION.  FOR ONE NOT A SPECIALIST IN THIS
FIELD TO EXAMINE EVERY TAX QUESTION THAT COMES BEFORE THE COURT
INDEPENDENTLY WOULD INVOLVE IN MOST CASES AN INQUIRY INTO THE COURSE OF
TAX LEGISLATION AND LITIGATION FAR BEYOND THE FACTS OF THE IMMEDIATE
CASE.  SUCH AN INQUIRY ENTAILS WEEKS OF STUDY AND REFLECTION. 
THEREFORE, IN CONSTRUING A TAX LAW IT HAS BEEN MY RULE TO FOLLOW ALMOST
BLINDLY ACCEPTED UNDERSTANDING OF THE MEANING OF TAX LEGISLATION, WHEN
THAT IS MANIFESTED BY LONG-CONTINUED, UNIFORM PRACTICE, UNLESS A
STATUTE LEAVES NO ADMISSIBLE OPENING FOR ADMINISTRATIVE CONSTRUCTION. 
THEREFORE, WHEN ADVISED IN CONNECTION WITH THE DISPOSITION OF THIS
CASE AFTER ITS FIRST ARGUMENT THAT "THERE DOES NOT APPEAR TO BE A
SINGLE CASE BEFORE 1940 IN WHICH A TAXPAYER ATTEMPTED A SUIT FOR REFUND
OF INCOME TAXES WITHOUT PAYING THE FULL AMOUNT THE GOVERNMENT ALLEGED
TO BE DUE," (357 U.S. 63, AT 69), I DEEMED SUCH A LONG-CONTINUED,
UNBROKEN PRACTICAL CONSTRUCTION OF THE STATUTE CONTROLLING AS TO THE
MEANING OF THE REVENUE ACT OF 1921, NOW 28 U.S.C. SEC. 1346(A)(1). 
ONCE THE BASIS WHICH FOR ME GOVERNED THE DISPOSITION OF THE CASE WAS NO
LONGER AVAILABLE, I WAS THROWN BACK TO AN INDEPENDENT INQUIRY OF THE
COURSE OF TAX LEGISLATION AND LITIGATION FOR MORE THAN A HUNDRED YEARS,
FOR ALL OF THAT WAS RELEVANT TO A TRUE UNDERSTANDING OF THE PROBLEM
PRESENTED BY THIS CASE.  THIS INVOLVED MANY WEEKS OF STUDY DURING WHAT
IS CALLED THE SUMMER VACATION.  SUCH A STUDY LED TO THE CONCLUSION SET
FORTH IN DETAIL IN THE OPINION OF MY BROTHER WHITTAKER. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
HARLAN, AND MR. JUSTICE STEWART JOIN, DISSENTING. 

A DEEP AND ABIDING CONVICTION THAT THE COURT TODAY DEPARTS FROM THE
PLAIN DIRECTION OF CONGRESS EXPRESSED IN 28 U.S.C. SEC. 1346(A),
DEFEATS ITS BENEFICENT PURPOSE, AND REPUDIATES MANY SOUNDLY REASONED
OPINIONS OF THE FEDERAL COURTS ON THE QUESTION PRESENTED, COMPELS ME TO
EXPRESS AND EXPLAIN MY DISAGREEMENT IN DETAIL. 

IN HIS INCOME TAX RETURN FOR THE YEAR 1950, PETITIONER DEDUCTED IN
FULL, AS ORDINARY IN CHARACTER, THE LOSSES HE HAD SUFFERED IN COMMODITY
TRANSACTIONS IN THAT YEAR, BUT THE COMMISSIONER VIEWED THOSE LOSSES AS
CAPITAL IN CHARACTER AND PROPOSED, BY HIS 90-DAY LETTER, THE ASSESSMENT
OF A DEFICIENCY IN THE AMOUNT OF $27,251.13, PLUS INTEREST.  PETITIONER
DID NOT PETITION THE TAX COURT FOR A REDETERMINATION OF THE PROPOSED
DEFICIENCY AND THE COMMISSIONER ASSESSED IT ON MARCH 27, 1953.  IN
APRIL AND JUNE 1953, PETITIONER PAID TO THE COMMISSIONER A TOTAL OF
$5,058.54 UPON THE ASSESSMENT AND TIMELY THEREAFTER FILED A CLAIM FOR
REFUND OF THAT SUM.  THE CLAIM WAS REJECTED ON JULY 13, 1955, AND, ON
AUGUST 3, 1956, PETITIONER BROUGHT THIS ACTION AGAINST THE UNITED
STATES IN THE DISTRICT COURT FOR WYOMING TO RECOVER THE AMOUNT PAID,
ALLEGING, INTER ALIA, THAT SAID SUM "HAS BEEN ILLEGALLY AND UNLAWFULLY
COLLECTED" FROM HIM, AND HE PRAYED JUDGMENT THEREFOR WITH INTEREST FROM
THE DATE OF PAYMENT. 

AT THE TRIAL, THE GOVERNMENT PREVAILED ON THE MERITS, 142 F. SUPP.
602, BUT THE COURT OF APPEALS, WITHOUT REACHING THE MERITS, REMANDED
WITH DIRECTIONS TO DISMISS, HOLDING THAT BECAUSE THE PETITIONER HAD NOT
PAID THE ENTIRE AMOUNT OF THE ASSESSMENT THE DISTRICT COURT HAD NO
JURISDICTION OF THE ACTION.  246 F.2D 929.  WE GRANTED CERTIORARI AND,
AFTER HEARING, AFFIRMED THE JUDGMENT OF THE COURT OF APPEALS.  357 U.S.
63.  ON JUNE 22, 1959, WE GRANTED A PETITION FOR REHEARING AND RESTORED
THE CASE TO THE DOCKET.  360 U.S. 922.  IT HAS SINCE BEEN REBRIEFED,
REARGUED AND AGAIN SUBMITTED. 

THE CASE IS NOW PRESENTED IN A VERY DIFFERENT POSTURE THAN BEFORE, AS
CERTAIN VITAL CONTENTIONS THAT WERE PREVIOUSLY MADE ARE NOW CONCEDED TO
HAVE BEEN ERRONEOUS. 

THE QUESTION PRESENTED IS WHETHER A FEDERAL DISTRICT COURT HAS
JURISDICTION OF AN ACTION BY A TAXPAYER AGAINST THE UNITED STATES TO
RECOVER PAYMENTS MADE TO THE COMMISSIONER UPON, BUT WHICH DISCHARGED
LESS THAN THE ENTIRE AMOUNT OF, AN ILLEGAL ASSESSMENT. 

THE ANSWER TO THAT QUESTION DEPENDS UPON WHETHER THE UNITED STATES
HAS WAIVED ITS SOVEREIGN IMMUNITY TO, AND HAS CONSENTED TO, SUCH A SUIT
IN A DISTRICT COURT.  THE APPLICABLE JURISDICTIONAL STATUTE IS 28
U.S.C. SEC. 1346(A).  IT PROVIDES: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION, CONCURRENT
WITH THE COURT OF CLAIMS, OF: 

"(1)  ANY CIVIL ACTION AGAINST THE UNITED STATES FOR THE RECOVERY OF
ANY INTERNAL-REVENUE TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY
ASSESSED OR COLLECTED, OR ANY PENALTY CLAIMED TO HAVE BEEN COLLECTED
WITHOUT AUTHORITY OR ANY SUM ALLEGED TO HAVE BEEN EXCESSIVE OR IN ANY
MANNER WRONGFULLY COLLECTED UNDER THE INTERNAL-REVENUE LAWS." 

IN ITS FORMER OPINION THE COURT RECOGNIZED THAT THE WORDS OF THE
STATUTE MIGHT "BE TERMED A CLEAR AUTHORIZATION TO SUE FOR THE REFUND OF
'ANY SUM,'" 357 U.S., AT 65, BUT IT CONCLUDED THAT CONGRESS HAD LEFT
ROOM IN THE STATUTE FOR AN IMPLICATION THAT THE WAIVER OF IMMUNITY AND
GRANT OF JURISDICTION APPLIED ONLY TO REFUND SUITS IN WHICH THE ENTIRE
AMOUNTS OF ASSESSMENTS HAD BEEN PAID.  ADVOCATING THE EXISTENCE OF THAT
IMPLICATION, THE GOVERNMENT CONTENDED AND URGED THAT, FROM THE TIME OF
THE DECISION IN CHEATHAM V. UNITED STATES, 92 U.S. 85, IN 1875 UNTIL
THE DECISION IN COATES V. UNITED STATES, 111 F.2D 609 (C.A.2D CIR.), IN
1940, THERE WAS AN UNQUESTIONED UNDERSTANDING AND UNIFORM PRACTICE THAT
FULL PAYMENT OF AN ASSESSMENT WAS A CONDITION UPON THE RIGHT TO SUE FOR
REFUND; AND, FINDING WHAT IT THEN ACCEPTED AS ADEQUATE SUPPORT FOR THAT
CONTENTION, THE COURT WAS PERSUADED THAT, SINCE NO SUBSEQUENT STATUTE
HAD PURPORTED TO CHANGE IT, SUCH UNQUESTIONED UNDERSTANDING SO LONG AND
UNIFORMLY APPLIED WAS STILL EFFECTIVE. 

SUPPORT FOR THAT ASSERTED UNQUESTIONED UNDERSTANDING AND UNIFORM
PRACTICE WAS PRINCIPALLY DERIVED FROM TWO SOURCES.  FIRST, STATEMENTS
IN CHEATHAM V. UNITED STATES, SUPRA, WERE THOUGHT TO HAVE ENUNCIATED A
FULL-PAYMENT DOCTRINE (FN1) WHICH SEEMED NEVER TO HAVE BEEN DIRECTLY
QUESTIONED.  SECOND, THE CONTENTION WAS ACCEPTED THAT "THERE DOES NOT
APPEAR TO BE A SINGLE CASE BEFORE 1940 IN WHICH A TAXPAYER ATTEMPTED A
SUIT FOR REFUND OF INCOME TAXES WITHOUT PAYING THE FULL AMOUNT THE
GOVERNMENT ALLEGED TO BE DUE."  357 U.S., AT 69. 

THE GOVERNMENT NOW CONCEDES THAT THE SECOND CONTENTION WAS
ERRONEOUS.  THERE WERE, FOR EXAMPLE, TWO CASES IN THIS COURT (COOK V.
TAIT, 265 U.S. 47 (1924); BOWERS V. KERBAUGH-EMPIRE CO., 271 U.S. 170
(1926)) IN WHICH TAXPAYERS HAD SUED FOR REFUNDS AFTER HAVING PAID ONLY
PORTIONS (IN ONE CASE $298.34 OF AN ASSESSMENT OF $1,193.38, IN THE
OTHER $5,198.77 OF AN ASSESSMENT OF $10,320.14) OF THE AMOUNTS ASSESSED
AGAINST THEM.  IT WAS NOT CONTENDED BY THE GOVERNMENT IN EITHER OF
THOSE CASES THAT THERE WAS ANY WANT OF JURISDICTION, AND THIS COURT
CONSIDERED AND DECIDED BOTH UPON THE MERITS.  (FN2)  PETITIONER HAS NOW
CITED MANY OTHER TAX REFUND CASES, DECIDED IN THE LOWER COURTS PRIOR TO
1940, IN WHICH TAXPAYERS HAD PAID, AND SUED TO RECOVER, LESS THAN THE
WHOLE OF ASSESSMENTS ALLEGED TO HAVE BEEN ILLEGAL, AND IN WHICH CASES
THE GOVERNMENT DID NOT QUESTION JURISDICTION.  (FN3)  THE GOVERNMENT
CONCEDES THAT IN AT LEAST TWO OF THESE (THOMAS V. UNITED STATES, 85 CT.
CL. 313, 18 F. SUPP. 942 (1937); TSIVOGLOU V. UNITED STATES, 31 F.2D
706 (C.A. 1ST CIR. 1929), AFFIRMING 27 F.2D 564 (D.C. MASS. 1928))
TAXPAYERS HAD PAID, AND SUED TO RECOVER, LESS THAN THE WHOLE OF
DEFICIENCY ASSESSMENTS AND THAT THE GOVERNMENT DID NOT QUESTION
JURISDICTION IN EITHER OF THEM.  PRIOR TO THE DECISION IN THE PRESENT
CASE THERE WERE TWO DECISIONS IN THE COURTS OF APPEALS THAT FULLY
TREATED WITH THE PRECISE QUESTION HERE PRESENTED.  BOTH HELD THAT
DISTRICT COURTS HAVE JURISDICTION OVER ACTIONS TO RECOVER PARTIAL
PAYMENTS UPON ASSESSMENTS ALLEGED TO HAVE BEEN ILLEGAL.  COATES V.
UNITED STATES, 111 F.2D 609 (C.A.2D CIR. 1940); BUSHMIAER V. UNITED
STATES, 230 F.2D 146 (C.A. 8TH CIR. 1956).  (FN4)  CERTAINLY, THE CITED
CASES AND THE GOVERNMENT'S CONCESSION PRECLUDE A CONCLUSION THAT THERE
EVER WAS AN UNQUESTIONED UNDERSTANDING AND UNIFORM PRACTICE THAT FULL
PAYMENT OF AN ASSESSED DEFICIENCY WAS A CONDITION UPON THE JURISDICTION
OF A DISTRICT COURT TO ENTERTAIN A SUIT FOR REFUND. 

IN THE LIGHT OF THE FOREGOING, IT IS CLEAR THAT NOTHING IN CHEATHAM
V. UNITED STATES, SUPRA, FAIRLY MAY BE SAID TO HOLD THAT FULL PAYMENT
OF AN ILLEGALLY ASSESSED DEFICIENCY IS A CONDITION UPON THE
JURISDICTION OF A DISTRICT COURT TO ENTERTAIN A SUIT FOR REFUND.  NO
SUCH ISSUE WAS INVOLVED IN THAT CASE.  THERE THE ASSESSMENT HAD BEEN
FULLY PAID, AND THE ONLY ISSUE WAS WHETHER A PROPER CLAIM FOR REFUND
WAS A CONDITION PRECEDENT TO THE MAINTENANCE OF A SUIT TO RECOVER THE
AMOUNT ALLEGED TO HAVE BEEN ILLEGALLY COLLECTED.  NOT ONLY WERE THE
STATEMENTS THERE MADE RESPECTING "PAYMENT OF THE TAX" PURE DICTUM, BUT
EVEN THE LANGUAGE THERE USED DID NOT EMBRACE, AND CERTAINLY WAS NOT
DIRECTED TO, THE QUESTION WHETHER FULL PAYMENT OF AN ASSESSMENT IS A
CONDITION UPON THE JURISDICTION OF A DISTRICT COURT TO ENTERTAIN A SUIT
FOR REFUND. 

I PASS, THEN, TO AN EXAMINATION OF THE HISTORY OF THE PRESENT
JURISDICTIONAL PROVISION, SEC. 1346(A), AND THE SCHEME OF THE PRESENT
TAX LAW TO DETERMINE WHETHER THERE IS ANY REAL SUPPORT FOR THE
GOVERNMENT'S CONTENTION THAT A PROPER READING OF THE LANGUAGE OF SEC.
1346(A) REQUIRES AN IMPLIED QUALIFICATION TO ITS OBVIOUS SELF
EXPLANATORY MEANING, SO THAT FULL PAYMENT OF AN ASSESSMENT, ALLEGED TO
HAVE BEEN ILLEGAL, IS MADE A CONDITION UPON THE JURISDICTION OF A
DISTRICT COURT TO ENTERTAIN A SUIT FOR REFUND. 

JUDICIAL PROCEEDINGS FOR REFUND OF UNITED STATES TAXES IN FEDERAL
COURTS ORIGINATED, WITHOUT EXPRESS STATUTORY AUTHORITY, BY SUITS
AGAINST COLLECTORS (NOW DISTRICT DIRECTORS), BEFORE THE UNITED STATES
HAD MADE ITSELF AMENABLE TO SUIT.  ELLIOTT V. SWARTWOUT, 10 PET. 137
(1836), RECOGNIZED THE EXISTENCE OF A RIGHT OF ACTION AGAINST A
COLLECTOR OF CUSTOMS FOR REFUND OF DUTIES ILLEGALLY ASSESSED AND PAID
UNDER PROTEST.  (FN5) THE DOCTRINE OF THE ACTION, BASED UPON THE COMMON
LAW COUNT OF ASSUMPSIT FOR MONEY HAD AND RECEIVED, WAS THUS FORMULATED:
"WHERE MONEY IS ILLEGALLY DEMANDED AND RECEIVED BY AN AGENT, HE CANNOT
EXONERATE HIMSELF FROM PERSONAL RESPONSIBILITY BY PAYING IT OVER TO HIS
PRINCIPAL; IF HE HAS HAD NOTICE NOT TO PAY IT OVER."  10 PET., AT 158. 
AS A RESULT OF THAT CASE, COLLECTORS OF CUSTOMS WHO COLLECTED MONIES,
PAID UNDER PROTEST, RESORTED TO THE PRACTICE OF WITHHOLDING SUCH
AMOUNTS FROM THE GOVERNMENT AS INDEMNITY AGAINST LOSS SHOULD A REFUND
SUIT AGAINST THEM BE SUCCESSFUL.  SEE PLUMB, TAX REFUND SUITS AGAINST
COLLECTORS OF INTERNAL REVENUE, 60 HARV. L. REV. 685, 688-689.  THAT
PRACTICE LED TO ABUSES AND FACILITATED PECULATION UNDER THE GUISE OF
SELF-PROTECTION.  BECAUSE OF THE WHOLESALE FRAUDS OF SWARTWOUT, THE NEW
YORK COLLECTOR (SEE SWARTWOUT, 18 DICTIONARY OF AMERICAN BIOGRAPHY
(1936), 238-239), CONGRESS, IN 1839, EXPRESSLY PROHIBITED SUCH
WITHHOLDINGS BY CUSTOMS COLLECTORS PENDING THE POSSIBILITY, OR THE
RESULT, OF LITIGATION AGAINST THEM.  ACT OF MAR. 3, 1839, C. 82, SEC.
2, 5 STAT. 348.  SIX YEARS LATER, IN 1845, THIS COURT HELD THAT THIS
ACT, BY REDUCING THE COLLECTOR TO "THE MERE BEARER OF THOSE SUMS
(DUTIES) TO THE TREASURY," TERMINATED THE RIGHT OF ACTION AGAINST THE
COLLECTOR FOR REFUND, FOR, BEING DEPRIVED OF THE RIGHT TO WITHHOLD
PAYMENT TO HIS PRINCIPAL, HE WAS NO LONGER UNDER AN IMPLIED PROMISE TO
REFUND ILLEGALLY COLLECTED DUTIES TO THE TAXPAYER.  CARY V. CURTIS, 3
HOW.  236, 241 (1845). 

THIS CREATED THE INTOLERABLE CONDITION OF DENYING TO TAXPAYERS ANY
REMEDY WHATEVER IN THE DISTRICT COURTS TO RECOVER AMOUNTS ILLEGALLY
ASSESSED AND COLLECTED, AND - DOUBTLESS ALSO INFLUENCED BY THE VIGOROUS
DISSENTS OF MR. JUSTICE STORY AND MR. JUSTICE MCLEAN IN THAT CASE -
INDUCED CONGRESS TO PASS THE ACT OF FEB. 26, 1845, C. 22, 5 STAT. 727,
(FN6) WHICH WAS THE FIRST STATUTE EXPRESSLY GIVING TAXPAYERS THE RIGHT
TO SUE FOR REFUND OF TAXES ILLEGALLY COLLECTED.  THAT ACT, IN
SUBSTANCE, PROVIDED THAT NOTHING CONTAINED IN THE ACT OF MAR. 3, 1839
(C. 82, SEC. 2, 5 STAT. 348), SHOULD BE CONSTRUED TO TAKE AWAY OR
IMPAIR THE RIGHT OF ANY PERSON WHO HAD PAID DUTIES UNDER PROTEST TO ANY
COLLECTOR OF CUSTOMS, WHICH WERE NOT LAWFULLY "PAYABLE IN PART OR IN
WHOLE," TO MAINTAIN AN ACTION AT LAW AGAINST THE COLLECTOR TO RECOVER
SUCH AMOUNTS.  IT IS EVIDENT THAT CONGRESS, BY THAT STATUTE, WAS MERELY
CONCERNED TO REVERSE THE CONSEQUENCES OF CARY V. CURTIS, SUPRA, AND TO
RESTORE THE RIGHT OF ACTION AGAINST COLLECTORS WHICH HAD ORIGINALLY
BEEN SUSTAINED IN ELLIOTT V. SWARTWOUT, SUPRA. NEITHER THE TERMS OF
THAT STATUTE NOR SUCH KNOWLEDGE AS IS AVAILABLE OF ITS HISTORY (FN7)
REVEALS ANY LIMITING PURPOSE EXCEPT THAT THE PROTEST BE MADE IN WRITING
BEFORE OR AT THE TIME OF THE PAYMENT. 

WHILE THAT STATUTE, THE ACT OF FEB. 26, 1845, REFERRED ONLY TO
REFUNDS OF CUSTOMS DUTIES, THIS COURT HELD IN CITY OF PHILADELPHIA V.
THE COLLECTOR, 5 WALL.  720, 730-733 (1866), THAT TAXPAYERS HAD THE
SAME RIGHT OF ACTION AGAINST COLLECTORS TO RECOVER ILLEGALLY COLLECTED
INTERNAL REVENUE TAXES.  (FN8) 

THE UNITED STATES WAS FIRST MADE DIRECTLY SUABLE IN DISTRICT COURTS
FOR TAX REFUNDS BY THE ACT OF MAR. 3, 1887, C. 359, 24 STAT. 505,
COMMONLY KNOWN AS THE TUCKER ACT, WHICH CONFERRED JURISDICTION ON THE
DISTRICT COURTS OVER "ALL CLAIMS (AGAINST THE UNITED STATES, NOT
EXCEEDING $1,000) FOUNDED UPON THE CONSTITUTION OF THE UNITED STATES OR
ANY LAW OF CONGRESS,  ...  OR UPON ANY CONTRACT, EXPRESSED OR IMPLIED,
WITH THE GOVERNMENT OF THE UNITED STATES, OR FOR DAMAGES, LIQUIDATED OR
UNLIQUIDATED, IN CASES NOT SOUNDING IN TORT, IN RESPECT OF WHICH CLAIMS
THE PARTY WOULD BE ENTITLED TO REDRESS AGAINST THE UNITED STATES EITHER
IN A COURT OF LAW, EQUITY, OR ADMIRALTY IF THE UNITED STATES WERE
SUABLE."  THIS JURISDICTIONAL GRANT WAS HELD, IN UNITED STATES V.
EMERY, BIRD, THAYER REALTY CO., 237 U.S. 28 (1915), TO HAVE INCLUDED
JURISDICTION OVER SUITS FOR TAX REFUNDS, AS CLAIMS "FOUNDED UPON" THE
INTERNAL REVENUE LAWS.  THE GENERAL LANGUAGE OF THAT ACT, THE TUCKER
ACT, WAS MOST EVIDENTLY NOT INTENDED TO, AND DID NOT, IMPOSE ANY NEW
CONDITIONS UPON THE PRE-EXISTING RIGHT TO SUE (THE COLLECTOR) FOR THE
REFUND OF TAXES ILLEGALLY COLLECTED, SAVE FOR A MONETARY LIMIT OF
$1,000, WHICH WAS INCREASED TO $10,000 IN 1911.  (FN9) 

THE GIST OF SEC. 1346(A), (FN10) WITH WHICH WE ARE NOW CONCERNED,
FIRST APPEARED IN THE JURISDICTIONAL STATUTE IN 1921, AS PART OF THE
REVENUE ACT OF 1921, C. 136, SEC. 1310(C), 42 STAT. 311.  THE REASON
FOR ITS APPEARANCE IS ENTIRELY UNRELATED TO THE QUESTION WHETHER FULL
PAYMENT OF AN ASSESSMENT IS A CONDITION PRECEDENT TO A SUIT FOR
REFUND.  UNDER THE TUCKER ACT, AS IT STOOD IN 1921, THE UNITED STATES
COULD NOT BE SUED IN A DISTRICT COURT FOR A TAX REFUND OF MORE THAN
$10,000.   TAXPAYERS WITH LARGER CLAIMS COULD PURSUE EITHER THEIR OLD
REMEDY - WHICH CONTINUED TO BE AVAILABLE AND IS TODAY - AGAINST THE
COLLECTOR IN THE DISTRICT COURTS OR THEIR REMEDY AGAINST THE UNITED
STATES IN THE COURT OF CLAIMS.  BUT, THE RIGHT OF SUIT AGAINST THE
COLLECTOR WAS IMPAIRED IN 1921 BY THE DECISION IN SMIETANKA V. INDIANA
STEEL CO., 257 U.S. 1 (1921).  IT HELD THAT SUCH ACTIONS AGAINST THE
COLLECTOR WERE PERSONAL IN CHARACTER AND NOT MAINTAINABLE AGAINST HIS
SUCCESSOR IN OFFICE.  HENCE, IF THE COLLECTOR HAD DIED OR CEASED TO BE
IN OFFICE, A TAXPAYER WITH A REFUND CLAIM OF MORE THAN $10,000 HAD NO
REMEDY IN A DISTRICT COURT.  THE PORTION OF THE REVENUE ACT OF 1921
THAT IS NOW EMBODIED IN SEC. 1346(A) WAS AN AMENDMENT OF THE TUCKER ACT
AND WAS DESIGNED TO PRESERVE TO TAXPAYERS WITH CLAIMS OF MORE THAN
$10,000 A DISTRICT COURT REMEDY, EVEN WHERE THE COLLECTOR HAD DIED OR
WAS OUT OF OFFICE, BY SUIT AGAINST THE UNITED STATES.  THE LEGISLATIVE
HISTORY MAKES THIS PURPOSE PLAIN.  (FN11) 

THE RELEVANT PORTION OF THE 1921 AMENDMENT TO THE TUCKER ACT - PART
OF THE REVENUE ACT OF 1921 (C. 136, SEC. 1310(C), 42 STAT. 311) (FN12)
WAS APPARENTLY TAKEN FROM A PROVISION IN REVISED STATUTES SEC. 3226
(1875) THAT "NO SUIT SHALL BE MAINTAINED IN ANY COURT FOR THE RECOVERY
OF ANY INTERNAL REVENUE TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR
ILLEGALLY ASSESSED OR COLLECTED, OR OF ANY PENALTY CLAIMED TO HAVE BEEN
COLLECTED WITHOUT AUTHORITY, OR OF ANY SUM ALLEGED TO HAVE BEEN
EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED, UNTIL APPEAL SHALL
HAVE BEEN DULY MADE TO THE COMMISSIONER OF THE INTERNAL REVENUE." 
(FN13)  IN THAT CONTEXT IT IS CLEAR THAT THE LANGUAGE "ANY TAX," "ANY
PENALTY" OR "ANY SUM" HAD NO REFERENCE TO WHAT PAYMENTS WERE REQUIRED
TO PRECEDE A SUIT FOR REFUND.  QUITE EVIDENTLY, ITS FUNCTION WAS ONLY
TO DESCRIBE, IN BROADEST TERMS, THE CLAIMS FOR REFUND WHICH WERE
REQUIRED TO BE SUBMITTED TO THE COMMISSIONER BEFORE SUIT MIGHT BE
BROUGHT THEREON.  WHAT REASONABLE BASIS IS THERE FOR ASCRIBING TO
CONGRESS, BY REASON OF ITS INSERTION OF THIS LANGUAGE INTO THE TUCKER
ACT, AN INTENT TO REQUIRE FULL PAYMENT OF AN ILLEGAL ASSESSMENT AS A
CONDITION UPON THE JURISDICTION OF A DISTRICT COURT TO ENTERTAIN A SUIT
FOR REFUND?  THE CHANGE WAS A JURISDICTIONAL ONE IN A JURISDICTIONAL
STATUTE, AND THE LANGUAGE, IT IS ALMOST NECESSARY TO ASSUME, WAS CHOSEN
BECAUSE, IN ANOTHER STATUTE, IT REFERRED TO ALL OF THE ACTIONS WHICH
COULD BE BROUGHT FOR REFUND OF INTERNAL REVENUE TAXES. 

THE GOVERNMENT HEAVILY RELIES ON STATEMENTS MADE IN CONGRESS
PERTAINING TO THE ESTABLISHMENT IN 1924 OF THE BOARD OF TAX APPEALS
(SINCE 1942 DESIGNATED THE TAX COURT) AND ITS REORGANIZATION IN 1926. 
IT ASSERTS THAT THESE STATEMENTS DEMONSTRATE A CONGRESSIONAL
UNDERSTANDING THAT THE BROAD LANGUAGE IN SEC. 1346(A) EXCLUDES
JURISDICTION OF DISTRICT COURTS TO ENTERTAIN SUITS TO RECOVER ONLY
PARTIAL PAYMENTS OF ASSESSMENTS ALLEGED TO BE ILLEGAL.  IT IS TRUE THAT
THOSE STATEMENTS, SOME OF WHICH ARE REPRODUCED IN THE MARGIN, (FN14)
ARE CONSISTENT WITH THE GOVERNMENT'S INTERPRETATION OF THAT SECTION. 
BUT, AS WITH THE STATEMENTS IN CHEATHAM V. UNITED STATES, SUPRA, THEY
ARE NOT DIRECTED TO THE QUESTION WE HAVE HERE AND ARE TOO IMPRECISE FOR
THE DRAWING OF SUCH A FAR-REACHING INFERENCE, INVOLVING, AS IT DOES,
THE INTERPOLATION OF A DRASTIC QUALIFICATION INTO THE OTHERWISE PLAIN,
CLEAR AND UNLIMITED PROVISIONS OF THE STATUTE. 

THE TAX COURT WAS CREATED TO ALLEVIATE HARDSHIPS OCCASIONED BY THE
FACT THAT THE COLLECTION OF ASSESSMENTS, HOWEVER ILLEGAL, COULD NOT BE
ENJOINED.  AND THE GOVERNMENT ARGUES THAT THE HARDSHIPS WHICH MOTIVATED
CONGRESS TO ESTABLISH THE TAX COURT WOULD NOT HAVE EXISTED IF A
TAXPAYER COULD, AS THE PETITIONER DID HERE, PAY ONLY PART OF A
DEFICIENCY ASSESSMENT AND THEN, BY WAY OF A SUIT FOR REFUND, LITIGATE
THE LEGALITY OF THE ASSESSMENT IN A DISTRICT COURT.  BUT THAT PROCEDURE
WOULD NOT THEN, NOR TODAY, AFFORD ANY SURE RELIEF TO TAXPAYERS FROM THE
HARDSHIPS WHICH TROUBLED CONGRESS IN 1924, FOR IT IS UNDISPUTED THAT
THE INSTITUTION OF A SUIT FOR REFUND OF A PARTIAL PAYMENT OF AN
ASSESSMENT DOES NOT STAY THE COMMISSIONER'S POWER OF COLLECTION (FN15)
BY DISTRAINT OR OTHERWISE, AND A TAXPAYER WITH THE PROPERTY OR MEANS TO
PAY THE BALANCE OF THE ASSESSMENT CANNOT AVOID ITS PAYMENT, EXCEPT
THROUGH THE COMMISSIONER'S ACQUIESCENCE AND FAILURE TO EXERCISE HIS
POWER OF DISTRAINT.  (FN16) 

THE GOVERNMENT ARGUES, WITH SOME FORCE, THAT OUR TAX LEGISLATION AS A
WHOLE CONTEMPLATES THE TAX COURT AS THE FORUM FOR ADJUDICATION OF
DEFICIENCIES, AND THE DISTRICT COURTS AND COURT OF CLAIMS AS THE FORUMS
FOR ADJUDICATION OF REFUND SUITS.  THIS, IN GENERAL, IS TRUE, AND IT IS
ALSO TRUE THAT TO HOLD THAT FULL PAYMENT OF ASSESSMENTS IS NOT A
CONDITION UPON THE JURISDICTION OF DISTRICT COURTS TO ENTERTAIN SUITS
FOR REFUND IS TO SANCTION WHAT MAY BE CALLED A "HYBRID" REMEDY IN THE
DISTRICT COURTS, FOR THE SUIT OF THE TAXPAYER WHO HAS PAID ONLY PART OF
AN ASSESSMENT AND HAS SUED FOR REFUND WILL, UNDER APPLICATION OF THE
PRINCIPLES OF COLLATERAL ESTOPPEL, DETERMINE THE LEGALITY OF THE
REMAINDER OF THE DEFICIENCY AS WELL AS HIS RIGHT TO REFUND OF THE
AMOUNT PAID.  BUT SUCH DUAL DETERMINATIONS ARE POSSIBLE UNDER THE
PRESENT LAW (FN17) AND IT IS DIFFICULT TO CONCEIVE HOW THEY MAY CREATE
SUFFICIENT DISHARMONY TO JUSTIFY SUCH A STRAINED INTERPRETATION OF THE
PLAIN WORDS OF SEC. 1346(A) AS THE GOVERNMENT'S CONTENTION WOULD
REQUIRE.  (FN18) 

NOR IS THE ARGUMENT SOUND THAT TO HOLD THAT FULL PAYMENT OF AN
ILLEGAL ASSESSMENT IS NOT A CONDITION UPON THE JURISDICTION OF DISTRICT
COURTS TO ENTERTAIN SUITS FOR REFUND WOULD UNDULY HAMPER THE COLLECTION
OF TAXES, BY ENCOURAGING TAXPAYERS TO WITHHOLD PAYMENT OF LARGE
PORTIONS OF ASSESSMENTS WHILE PROSECUTING LITIGATION FOR THE REFUND OF
THE PART ALREADY PAID.  NOT ONLY IS IT TRUE THAT THE INSTITUTION OF A
SUIT FOR REFUND DOES NOT STAY COLLECTION, (FN19) BUT, SINCE THE
CREATION OF THE TAX COURT, ANY TAXPAYER HAS A METHOD OF WITHHOLDING
PAYMENT, IMMUNE FROM DISTRAINT, (FN20) UNTIL THE LEGALITY OF THE
ASSESSMENT IS FINALLY DETERMINED.  ANY DELAY IN COLLECTION WHICH MIGHT
BE CAUSED BY HOLDING THAT FULL PAYMENT OF AN ASSESSMENT IS NOT A
CONDITION UPON THE JURISDICTION OF A DISTRICT COURT TO ENTERTAIN A SUIT
FOR REFUND WOULD BE OF THE SAME ORDER AS THE DELAY INCIDENT TO
ADJUDICATION BY THE TAX COURT, AND WOULD NOT CREATE SO INCONGRUOUS A
RESULT AS TO JUSTIFY GIVING AN OTHERWISE CLEAR AND UNLIMITED STATUTE A
STRAINED AND UNNATURAL MEANING. 

PETITIONER, ON THE OTHER HAND, SUGGESTS THAT IF IT BE HELD THAT FULL
PAYMENT OF ILLEGAL ASSESSMENTS IS A CONDITION UPON THE JURISDICTION OF
DISTRICT COURTS IN REFUND SUITS, NOT ONLY WILL THE WORDS OF SEC.
1346(A) BE DISREGARDED, BUT GREAT HARDSHIPS UPON TAXPAYERS WILL RESULT,
AND THAT SUCH AN INTENTION SHOULD NOT LIGHTLY BE IMPLIED.  WHERE A
TAXPAYER HAS PAID, UPON A NORMAL OR A "JEOPARDY" ASSESSMENT, EITHER
VOLUNTARILY OR UNDER COMPULSION OF DISTRAINT, A PART ONLY OF AN ILLEGAL
ASSESSMENT AND IS UNABLE TO PAY THE BALANCE WITHIN THE TWO-YEAR PERIOD
OF LIMITATIONS, (FN21) HE WOULD BE DEPRIVED OF ANY MEANS OF
ESTABLISHING THE INVALIDITY OF THE ASSESSMENT AND OF RECOVERING THE
AMOUNT ILLEGALLY COLLECTED FROM HIM, UNLESS IT BE HELD, AS IT SEEMS TO
ME CONGRESS PLAINLY PROVIDED IN SEC. 1346(A), THAT FULL PAYMENT IS NOT
A CONDITION UPON THE JURISDICTION OF DISTRICT COURTS TO ENTERTAIN SUITS
FOR REFUND.  (FN22)  LIKEWISE, TAXPAYERS WHO PAY ASSESSMENTS IN
INSTALLMENTS WOULD BE WITHOUT REMEDY TO RECOVER EARLY INSTALLMENTS THAT
WERE WRONGFULLY COLLECTED SHOULD THE PERIOD OF LIMITATIONS RUN BEFORE
THE LAST INSTALLMENT IS PAID. 

NO ONE HAS SUGGESTED THAT CONGRESS COULD NOT CONSTITUTIONALLY CONFER
JURISDICTION UPON DISTRICT COURTS TO ENTERTAIN SUITS AGAINST THE UNITED
STATES TO RECOVER SUMS WRONGFULLY COLLECTED UNDER, BUT WHICH DID NOT
DISCHARGE THE WHOLE OF, ILLEGAL ASSESSMENTS.  NOR CAN IT BE DENIED THAT
CONGRESS HAS PROVIDED IN SEC. 1346(A) THAT: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION  ...  OF  ...
ANY CIVIL ACTION AGAINST THE UNITED STATES FOR RECOVERY OF  ...  ANY
SUM ALLEGED TO HAVE BEEN EXCESSIVE OR IN ANY MANNER WRONGFULLY
COLLECTED UNDER THE INTERNAL-REVENUE LAWS." 

ENGLISH WORDS MORE CLEARLY EXPRESSIVE OF THE GRANT OF JURISDICTION TO
FEDERAL DISTRICT COURTS OVER SUCH CASES THAN THOSE USED BY CONGRESS DO
NOT READILY OCCUR TO ME. 

IT MUST, THEREFORE, BE CONCLUDED THAT THERE IS NO SOUND REASON FOR
IMPLYING INTO SEC.  1346(A) A LIMITATION THAT FULL PAYMENT OF AN
ILLEGAL ASSESSMENT IS A CONDITION UPON THE JURISDICTION OF A DISTRICT
COURT TO ENTERTAIN A SUIT FOR REFUND.  INASMUCH AS NO CONTRADICTION OR
ABSURDITY IS CREATED BY SO DOING, I THINK IT IS OUR DUTY TO RELY UPON
THE WORDS OF SEC.  1346(A) RATHER THAN UPON UNARTICULATED IMPLICATIONS
OR EXCEPTIONS.  PARTICULARLY IS THIS SO IN DEALING WITH LEGISLATION IN
AN AREA SUCH AS INTERNAL REVENUE, WHERE COUNTLESS RULES AND EXCEPTIONS
ARE THE SUBJECTS OF FREQUENT REVISIONS AND PRECISE REFINEMENTS. 

BY SEC. 1346(A) CONGRESS EXPRESSED ITS PURPOSE TO WAIVE SOVEREIGN
IMMUNITY TO SUITS, AND TO GRANT JURISDICTION TO DISTRICT COURTS OVER
SUITS, TO RECOVER "ANY SUM ALLEGED TO HAVE BEEN EXCESSIVE OR IN ANY
MANNER WRONGFULLY COLLECTED UNDER THE INTERNAL-REVENUE LAWS."  SURELY
THESE WORDS DO NOT LIMIT THE WAIVER OF IMMUNITY OR THE GRANT OF
JURISDICTION TO ACTIONS IN WHICH THE ENTIRE AMOUNTS OF ILLEGAL
ASSESSMENTS HAVE BEEN PAID.  EVEN IF THE WORDS "ANY INTERNAL-REVENUE
TAX" OR "ANY PENALTY," WHEN READ IN ISOLATION AND MOST RESTRICTIVELY,
COULD BE THOUGHT TO CONTEMPLATE ONLY THE ENTIRE AMOUNT OF AN ILLEGAL
ASSESSMENT, THE CONCLUDING PHRASE - "OR ANY SUM ALLEGED TO HAVE BEEN
EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED" - LEAVES NO ROOM OR
BASIS FOR ANY SUCH CONSTRUCTION OF THE STATUTE AS A WHOLE.  JUDGED BY
ITS TEXT AND ITS HISTORY IN RELATION TO OTHER PROVISIONS OF THE TAX
LAWS, AS MUST BE DONE, I CANNOT DOUBT THAT CONGRESS PLAINLY EXPRESSED
ITS INTENTION TO WAIVE SOVEREIGN IMMUNITY TO SUITS, AND TO GRANT
JURISDICTION TO DISTRICT COURTS OVER SUITS, AGAINST THE UNITED STATES
TO RECOVER "ANY SUM" ALLEGED TO HAVE BEEN WRONGFULLY COLLECTED. 
PETITIONER'S COMPLAINT HERE ALLEGED THAT THE $5,058.54 WHICH HE HAD
PAID TO THE COMMISSIONER UPON THE QUESTIONED ASSESSMENT "HAS BEEN
ILLEGALLY AND UNLAWFULLY COLLECTED" FROM HIM.  THE COMPLAINT,
THEREFORE, STATED A CAUSE OF ACTION WITHIN THE JURISDICTION OF THE
DISTRICT COURT. 

BUT THE COURT DOES NOT SO SEE IT.  THE MAJORITY NOW HOLD, DESPITE THE
STATUTE, THAT FULL PAYMENT OF AN ILLEGAL ASSESSMENT IS A CONDITION UPON
THE JURISDICTION OF A DISTRICT COURT TO ENTERTAIN A SUIT FOR REFUND. 
IT, THEREFORE, SEEMS APPROPRIATE, IN ORDER EVENTUALLY TO AVOID THE
HARSH INJUSTICE OF PERMITTING THE GOVERNMENT UNLAWFULLY TO COLLECT AND
RETAIN TAXES THAT ARE NOT OWING, TO EXPRESS THE HOPE THAT CONGRESS WILL
TRY AGAIN. 

FN1  THE LANGUAGE OF CHEATHAM RELIED UPON BY THIS COURT IN ITS FIRST
OPINION WAS THE FOLLOWING: 

"SO ALSO, IN THE INTERNAL-REVENUE DEPARTMENT, THE STATUTE WHICH WE
HAVE COPIED ALLOWS APPEALS FROM THE ASSESSOR TO THE COMMISSIONER OF
INTERNAL REVENUE; AND, IF DISSATISFIED WITH HIS DECISION, ON PAYING THE
TAX THE PARTY CAN SUE THE COLLECTOR; AND, IF THE MONEY WAS WRONGFULLY
EXACTED, THE COURTS WILL GIVE HIM RELIEF BY A JUDGMENT, WHICH THE
UNITED STATES PLEDGES HERSELF TO PAY. 

     *        *         *         *         * 

"  ...  WHILE A FREE COURSE OF REMONSTRANCE AND APPEAL IS ALLOWED
WITHIN THE DEPARTMENTS BEFORE THE MONEY IS FINALLY EXACTED, THE GENERAL
GOVERNMENT HAS WISELY MADE THE PAYMENT OF THE TAX CLAIMED, WHETHER OF
CUSTOMS OR OF INTERNAL REVENUE, A CONDITION PRECEDENT TO A RESORT TO
THE COURTS BY THE PARTY AGAINST WHOM THE TAX IS ASSESSED ...  .  IF THE
COMPLIANCE WITH THIS CONDITION (THAT SUIT MUST BE BROUGHT WITHIN SIX
MONTHS OF THE COMMISSIONER'S DECISION) REQUIRES THE PARTY AGGRIEVED TO
PAY THE MONEY, HE MUST DO IT.  HE CANNOT, AFTER THE DECISION IS
RENDERED AGAINST HIM, PROTRACT THE TIME WITHIN WHICH HE CAN CONTEST
THAT DECISION IN THE COURTS BY HIS OWN DELAY IN PAYING THE MONEY.  IT
IS ESSENTIAL TO THE HONOR AND ORDERLY CONDUCT OF THE GOVERNMENT THAT
ITS TAXES SHOULD BE PROMPTLY PAID, AND DRAWBACKS SPEEDILY ADJUSTED; AND
THE RULE PRESCRIBED IN THIS CLASS OF CASES IS NEITHER ARBITRARY NOR
UNREASONABLE  ...  . 

"THE OBJECTING PARTY CAN TAKE HIS APPEAL.  HE CAN, IF THE DECISION IS
DELAYED BEYOND TWELVE MONTHS, REST HIS CASE ON THAT DECISION; OR HE CAN
PAY THE AMOUNT CLAIMED, AND COMMENCE HIS SUIT AT ANY TIME WITHIN THAT
PERIOD.  SO, AFTER THE DECISION, HE CAN PAY AT ONCE, AND COMMENCE SUIT
WITHIN THE SIX MONTHS  ...  ."  92 U.S., AT 88-89. 

FN2  THE GOVERNMENT NOW SEEKS TO DISTINGUISH THESE TWO CASES BECAUSE
THEY AROSE UNDER THE REVENUE ACT OF 1921, ACT OF NOV. 23, 1921, C. 136,
42 STAT. 227, AND BECAUSE SEC. 250(A) OF WHICH PERMITTED THE TAXPAYER,
AT HIS OPTION, TO PAY THE TAX IN FOUR TRIMONTHLY INSTALLMENTS, RATHER
THAN ALL AT ONCE.  THE TAXPAYERS IN BOTH COOK V. TAIT AND BOWERS V.
KERBAUGH-EMPIRE CO. DID CHOOSE TO PAY IN INSTALLMENTS, AND THE
GOVERNMENT POINTS TO THE FACT THAT, AT THE TIME THE SUITS WERE BROUGHT,
ALL INSTALLMENTS DUE HAD BEEN PAID, ALTHOUGH THE FULL ASSESSMENT HAD
NOT.  THE GOVERNMENT THEREFORE WOULD SEEM TO TAKE THE POSITION THAT THE
WHOLE TAX NEED NOT BE PAID, SO LONG AS THE TAXPAYER, WHEN HE INITIATES
THE SUIT, HAS PAID "ALL THAT THE TAXPAYER WAS AT THAT TIME LEGALLY
OBLIGATED TO PAY, AND ALL (IN THE ABSENCE OF A SO-CALLED JEOPARDY
ASSESSMENT) THAT THE COMMISSIONER WAS AT THAT TIME LEGALLY EMPOWERED TO
COLLECT."  (IT SHOULD BE POINTED OUT THAT IN COOK V. TAIT AND BOWERS V.
KERBAUGH-EMPIRE CO. INSTALLMENTS FELL DUE IMMEDIATELY AFTER SUIT WAS
BEGUN, AND BEFORE HEARING OR ADJUDICATION; THESE INSTALLMENTS WERE NOT
PAID AS THEY CAME DUE.)  IT SEEMS ALMOST UNNECESSARY TO SAY THAT THE
WORDS OF THE JURISDICTIONAL STATUTE SIMPLY WILL NOT SUPPORT THIS FINE
DISTINCTION URGED BY THE GOVERNMENT; NOR IS THERE THE LEAST SUPPORT FOR
IT (THERE IS, IF ANYTHING, CONTRADICTION) IN THE MATERIAL THE
GOVERNMENT CITES TO ESTABLISH AN UNDERSTANDING OF THE FULL-PAYMENT
REQUIREMENT.    FN3  THE LOWER COURTS' DECISIONS CITED BY PETITIONER,
THAT WERE RENDERED PRIOR TO 1940, IN WHICH TAXPAYERS HAD PAID, AND SUED
TO RECOVER, LESS THAN THE WHOLE OF ASSESSMENTS ALLEGED TO HAVE BEEN
ILLEGAL, AND IN WHICH THE GOVERNMENT DID NOT QUESTION, ARE:  TSIVOGLOU
V. UNITED STATES, 31 F.2D 706 (C.A. 1ST CIR. 1929); HEINEMANN CHEMICAL
CO. V. HEINER, 92 F.2D 344 (C.A. 3D CIR. 1937); THOMAS V. UNITED
STATES, 85 CT. CL. 313, 18 F. SUPP. 942 (1937); PEERLESS PAPER BOX MFG.
CO. V. ROUTZAHN, 22 F.2D 459 (D.C.N.D. OHIO 1927); WELCH V. HASSETT, 15
F. SUPP. 692 (D.C. MASS. 1936); MCFADDEN V. UNITED STATES, 20 F. SUPP.
625 (D.C.E.D. PA. 1937); LEAVITT V. HENDRICKSEN, 37-2 U.S.T.C., PARA.
9312 (D.C.W.D. WASH. 1937). 

IN JUSTICE TO COUNSEL FOR BOTH PARTIES IT SEEMS APPROPRIATE TO
OBSERVE - WHAT EVERY LAWYER KNOWS - THAT CASES, SUCH AS THESE, IN WHICH
THERE "LURKED IN THE RECORD" QUESTIONS THAT WERE NOT RAISED OR DECIDED
ARE NOT DISCOVERABLE BY ANY ORDINARY MEANS OF REFERENCE.  WITHOUT
DOUBT, THIS FACT ACCOUNTS FOR THE FAILURE OF COUNSEL TO TAKE ACCOUNT OF
OR TO CITE, AND OF THIS COURT TO FIND, THOSE CASES ON THE FIRST
HEARING. 

PETITIONER HAS CITED A NUMBER OF OTHER CASES, DECIDED BY THE LOWER
COURTS PRIOR TO AND DURING 1940, THAT SOUGHT RECOVERY OF PARTIAL
PAYMENTS UPON ASSESSMENTS, AND IN EACH OF WHICH THE GOVERNMENT DID
CHALLENGE, BUT UNSUCCESSFULLY, THE JURISDICTION OF THE COURTS, NAMELY,
COATES V. UNITED STATES, 111 F.2D 609 (C.A.2D CIR. 1940); CAMP V.
UNITED STATES, 44 F.2D 126 (C.A.  4TH CIR. 1930); OHIO STEEL FOUNDRY
CO. V. UNITED STATES, 69 CT. CL. 158, 38 F.2D 144 (1930); EMERY V.
UNITED STATES, 27 F.2D 992 (D.C.W.D. PA. 1928); OLD COLONY R. CO. V.
UNITED STATES, 27 F.2D 994 (D.C. MASS. 1928). 

PETITIONER HAS ALSO CITED 22 SIMILAR CASES, DECIDED BY THE LOWER
COURTS SINCE 1940.  IN 17 OF THEM (KAVANAGH V. FIRST NATIONAL BANK, 139
F.2D 309 (C.A. 6TH CIR. 1943); GRIFFITHS DAIRY, INC., V. SQUIRE, 138
F.2D 758 (C.A. 9TH CIR. 1943); UNITED STATES V. PFISTER, 205 F.2D 538
(C.A. 8TH CIR. 1953); GALLAGHER V. SMITH, 223 F.2D 218 (C.A. 3D CIR.
1955); PERRY V. ALLEN, 239 F.2D 107 (C.A. 5TH CIR. 1956); AURICCHIO V.
UNITED STATES, 49 F. SUPP. 184 (D.C.E.D.N.Y.  1943); PROFESSIONAL GOLF
CO. V. NASHVILLE TRUST CO., 60 F. SUPP. 398 (D.C.M.D. TENN. 1945); JACK
LITTLE FOUNDATION V. JONES, 102 F. SUPP. 325 (D.C.W.D. OKLA. 1951);
HOGG V. ALLEN, 105 F. SUPP. 12 (D.C.M.D. GA. 1952); SNYDER V. WESTOVER,
107 F. SUPP. 363 (D.C.S.D. CAL.  1952); WHEELER V. HOLLAND, 120 F.
SUPP. 383 (D.C.N.D. GA. 1954); PETERS V. SMITH, 123 F. SUPP. 711
(D.C.E.D. PA. 1954); ZUKIN V. RIDDELL, 55-2 U.S.T.C., PARA. 9688
(D.C.S.D. CAL. 1955); LEWIS V. SCOFIELD, 57-1 U.S.T.C., PARA. 9251
(D.C.W.D. TEX. 1956); MCFARLAND V. UNITED STATES, 57-2 U.S.T.C., PARA.
9733 (D.C.M.D. TENN. 1957); RAYMOND V. UNITED STATES, 58-1 U.S.T.C.,
PARA. 9397, (D.C.E.D. MICH. 1958); FREEMAN V. UNITED STATES, 58-1
U.S.T.C., PARA. 9309 (D.C.S.D. CAL. 1958)) THE GOVERNMENT DID NOT
QUESTION THE JURISDICTION OF THE COURTS, AND IN THE OTHER FIVE CASES
(BUSHMIAER V. UNITED STATES, 230 F.2D 146 (C.A. 8TH CIR. 1956); SIRIAN
LAMP CO. V. MANNING, 123 F.2D 776 (C.A. 3D CIR. 1941); JONES V. FOX, 57
2 U.S.T.C., PARA. 9876 (D.C. MD. 1957); HANCHETT V. SHAUGHNESSY, 126 F.
SUPP. 769 (D.C.N.D.N.Y. 1954); ROGERS V. UNITED STATES, 155 F. SUPP.
409 (D.C.E.D.N.Y. 1957)) THE GOVERNMENT DID CHALLENGE THE JURISDICTION
OF THE COURTS, BUT PREVAILED UPON THE POINT ONLY IN THE LAST-MENTIONED
CASE. 

FN4 SIRIAN LAMP CO. V. MANNING, 123 F.2D 776 (C.A. 3D CIR. 1941) WAS
A SUIT AGAINST THE COLLECTOR AND, THEREFORE, DID NOT COME UNDER THE
JURISDICTIONAL PROVISION HERE IN ISSUE, WHICH IS APPLICABLE ONLY TO
SUITS AGAINST THE UNITED STATES.  BUT IT HELD EXPRESSLY THAT A SUIT FOR
REFUND MAY BE MAINTAINED TO RECOVER A PARTIAL PAYMENT OF AN
ASSESSMENT.  NO ONE HAS SUGGESTED THAT THE JURISDICTIONAL REQUIREMENT
OF THE AMOUNT OF THE ASSESSED TAX THAT MUST BE PAID AS A PREREQUISITE
TO A SUIT FOR REFUND IS DIFFERENT WHEN THE SUIT IS AGAINST THE
COLLECTOR, WITH REGARD TO WHICH SUITS THERE IS NO SPECIFIC
JURISDICTIONAL PROVISION, RATHER THAN AGAINST THE UNITED STATES. 

FN5  SEE ALSO BEND V. HOYT, 13 PET. 263, 267 (1839).  ELLIOTT V.
SWARTWOUT SEEMS TO HAVE BEEN THE FIRST CASE IN THIS COUNTRY EXPRESSLY
TO RECOGNIZE THE RIGHT. 

FN6  THE ACT OF FEB. 26, 1845, C. 22, 5 STAT. 727, IN PERTINENT PART,
PROVIDES: 

"NOTHING CONTAINED IN THE ACT OF MAR. 3, 1839, C. 82, SEC. 2  ...
SHALL TAKE AWAY, OR BE CONSTRUED TO TAKE AWAY OR IMPAIR, THE RIGHT OF
ANY PERSON OR PERSONS WHO HAVE PAID OR SHALL HEREAFTER PAY MONEY, AS
AND FOR DUTIES, UNDER PROTEST, TO ANY COLLECTOR OF THE CUSTOMS  ...
WHICH DUTIES ARE NOT AUTHORIZED OR PAYABLE IN PART OR IN WHOLE BY LAW,
TO MAINTAIN ANY ACTION AT LAW AGAINST SUCH COLLECTOR ...  TO ASCERTAIN
AND TRY THE LEGALITY AND VALIDITY OF SUCH DEMAND AND PAYMENT OF DUTIES
...  ; NOR SHALL ANY ACTION BE MAINTAINED AGAINST ANY COLLECTOR, TO
RECOVER THE AMOUNT OF DUTIES SO PAID UNDER PROTEST, UNLESS THE SAID
PROTEST WAS MADE IN WRITING, AND SIGNED BY THE CLAIMANT, AT OR BEFORE
THE PAYMENT OF SAID DUTIES, SETTING FORTH DISTINCTLY AND SPECIFICALLY
THE GROUNDS OF OBJECTION TO THE PAYMENT THEREOF." 

FN7  THE ONLY STATEMENTS WITH REGARD TO THE PURPOSE OF THE BILL IN
CONGRESS WHICH HAVE BEEN FOUND ARE THE REMARKS OF SENATORS HUNTINGTON
AND WOODBURY, CONG. GLOBE, 28TH CONG., 2D SESS.  195 (1845).  SEE ALSO
5 STAT. 349, N. (A):  "CONGRESS BEING IN SESSION WHEN THE DECISION OF
THE COURT IN THE CASE OF CAREY V. CURTIS, 3 HOWARD, 236, WAS MADE, THE
FOLLOWING ACT (THE ACT OF FEB. 26, 1845) WAS PASSED." 

FN8  THE COURT RECOGNIZED THAT INTERNAL REVENUE COLLECTORS, LIKE
CUSTOMS COLLECTORS, WERE REQUIRED TO PAY DAILY INTO THE TREASURY ALL
SUMS COLLECTED UNDER THE INTERNAL REVENUE LAWS.  ACT OF MAR. 3, 1865,
C. 78, SEC. 3, 13 STAT. 483.  IN REFUSING TO REACH THE SAME RESULT AS
HAD BEEN REACHED IN CARY V. CURTIS, WITHOUT AN EXPRESS SAVING STATUTE
SUCH AS THE ACT OF FEB. 26, 1845, THE COURT RELIED UPON THE PROVISIONS
IN THE INTERNAL REVENUE LAWS THAT THE COMMISSIONER SHALL PAY ALL
JUDGMENTS FOR REFUNDS RECOVERED AGAINST COLLECTORS.  ACT OF MAR. 3,
1863, C. 74, SEC. 31, 12 STAT. 729; ACT OF JUNE 30, 1864, C. 173, SEC.
44, 13 STAT.  239; ACT OF JULY 13, 1866, C. 184, SEC. 9, 14 STAT. 101,
111.  "CLEAR IMPLICATION OF THE SEVERAL PROVISIONS IS, THAT A JUDGMENT
AGAINST THE COLLECTOR IN SUCH A CASE (A REFUND SUIT) IS IN THE NATURE
OF A RECOVERY AGAINST THE UNITED STATES, AND THAT THE AMOUNT RECOVERED
IS REGARDED AS A PROPER CHARGE AGAINST THE REVENUE COLLECTED FROM THAT
SOURCE."  CITY OF PHILADELPHIA V. THE COLLECTOR, 5 WALL., AT 733. 

FN9  ACT OF MAR. 3, 1911, C. 231, SEC. 24, 36 STAT. 1093.  THE
MONETARY LIMITATION WAS ENTIRELY ELIMINATED IN 1954.  ACT OF JULY 30,
1954, C. 648, SEC. 1, 68 STAT. 589. 

FN10  THE GIST OF SEC. 1346(A) PROVIDES:  "FOR THE RECOVERY OF ANY
INTERNAL-REVENUE TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY
ASSESSED OR COLLECTED, OR ANY PENALTY CLAIMED TO HAVE BEEN COLLECTED
WITHOUT AUTHORITY OR ANY SUM ALLEGED TO HAVE BEEN EXCESSIVE OR IN ANY
MANNER WRONGFULLY COLLECTED UNDER THE INTERNAL-REVENUE LAWS."  28
U.S.C. SEC. 1346(A). 

FN11  SEE 61 CONG. REC. 7506-7507 (1921); H.R. CONF. REP. NO. 486,
67TH CONG., 1ST SESS.  57 (1921). 

FN12  SEE NOTE 10. 

FN13  THIS LANGUAGE WAS IN TURN PRECEDED BY SEC. 19 OF THE REVENUE
ACT OF JULY 13, 1866, C. 184, 14 STAT. 152, WHICH DID NOT INCLUDE ANY
REFERENCE TO "PENALTIES" OR "SUMS": "NO SUIT SHALL BE MAINTAINED IN ANY
COURT FOR THE RECOVERY OF ANY TAX ALLEGED TO HAVE BEEN ERRONEOUSLY OR
ILLEGALLY ASSESSED OR COLLECTED, UNTIL APPEAL SHALL HAVE BEEN DULY MADE
TO THE COMMISSIONER OF INTERNAL REVENUE  ...  ."  IT IS IMPORTANT TO
NOTE THAT THIS WAS THE "CLAIM FOR REFUND" STATUTE IN EFFECT AT THE TIME
OF, AND THAT WAS APPLICABLE TO, CHEATHAM V. UNITED STATES, SUPRA.
QUITE UNLIKE SEC. 1346(A), IT MADE NO REFERENCE TO "ANY SUM." 

FN14  "THE COMMITTEE (ON WAYS AND MEANS) RECOMMENDS THE ESTABLISHMENT
OF A BOARD OF TAX APPEALS TO WHICH A TAXPAYER MAY APPEAL PRIOR TO THE
PAYMENT OF AN ADDITIONAL ASSESSMENT OF INCOME, EXCESS-PROFITS, WAR
PROFITS, OR ESTATE TAXES.  ALTHOUGH A TAXPAYER MAY, AFTER PAYMENT OF
HIS TAX, BRING SUIT FOR THE RECOVERY THEREOF AND THUS SECURE A JUDICIAL
DETERMINATION ON THE QUESTIONS INVOLVED, HE CAN NOT, IN VIEW OF SECTION
3224 OF THE REVISED STATUTES, WHICH PROHIBITS SUITS TO ENJOIN THE
COLLECTION OF TAXES, SECURE SUCH A DETERMINATION PRIOR TO THE PAYMENT
OF THE TAX.  THE RIGHT OF APPEAL AFTER PAYMENT OF THE TAX IS AN
INCOMPLETE REMEDY, AND DOES LITTLE TO REMOVE THE HARDSHIP OCCASIONED BY
AN INCORRECT ASSESSMENT.  THE PAYMENT OF A LARGE ADDITIONAL TAX ON
INCOME RECEIVED SEVERAL YEARS PREVIOUS AND WHICH MAY HAVE, SINCE ITS
RECEIPT, BEEN EITHER WIPED OUT BY SUBSEQUENT LOSSES, INVESTED IN
NONLIQUID ASSETS, OR SPENT, SOMETIMES FORCES TAXPAYERS INTO BANKRUPTCY,
AND OFTEN CAUSES GREAT FINANCIAL HARDSHIP AND SACRIFICE.  THESE RESULTS
ARE NOT REMEDIED BY PERMITTING THE TAXPAYER TO SUE FOR THE RECOVERY OF
THE TAX AFTER THIS PAYMENT.  HE IS ENTITLED TO AN APPEAL AND TO A
DETERMINATION OF HIS LIABILITY FOR THE TAX PRIOR TO ITS PAYMENT."  H.R.
REP. NO. 179, 68TH CONG., 1ST SESS. 7 (1924). 

"NOW, IT IS TRUE THAT UNDER THE PRESENT LAW IT IS POSSIBLE TO GET A
JUDICIAL REVIEW, BUT IT IS VERY SLOW AND EXPENSIVE.  IN ORDER TO GET A
JUDICIAL REVIEW UNDER THE LAW AS IT EXISTS TO-DAY A MAN MUST PAY HIS
TAX AND PAY IT UNDER PROTEST; THEN HE MUST FILE A CLAIM FOR REFUND;
THEN THE GOVERNMENT HAS SIX MONTHS WITHIN WHICH TO ACCEPT OR REJECT IT;
THEN AFTER THAT HE MUST BEGIN AN ACTION IN THE COURTS."  REMARKS OF
REPRESENTATIVE YOUNG, 65 CONG. REC. 2621 (1924). 

"THE PRACTICE, AS I UNDERSTAND IT, HAS BEEN TO REQUIRE THE TAXPAYER
TO PAY IN THE AMOUNT OF THE INCREASED ASSESSMENT, AND THEN TO ALLOW HIM
TO GET IT BACK IF HE CAN.  IN ADDITION TO THIS, DISTRAINTS FREQUENTLY
HAVE BEEN ISSUED SEIZING THE PROPERTY OF THE CITIZEN, SO THAT THE MAN
WHOSE TAXES MAY HAVE BEEN RAISED UNJUSTLY MAY FIND HIMSELF FORCED TO
RAISE A LARGE SUM OF MONEY AT ONCE OR HAVE HIS PROPERTY SEIZED." 
REMARKS OF SENATOR REED OF MISSOURI, 65 CONG. REC. 8109 (1924). 

"ONE OF THE CHIEF ARGUMENTS PRESENTED IN THE REPORTS OF THE
COMMITTEES OF BOTH HOUSES (UPON THE CREATION OF THE BOARD OF TAX
APPEALS) WAS TO RELIEVE THE TAXPAYER OF THE HARDSHIP OF BEING FORCED TO
GO OUT AND PAY HIS TAX BEFORE HE COULD HAVE A JUDICIAL CONSIDERATION OF
THE PROBLEMS INVOLVED IN HIS CASE.  THE TAXPAYER WHO WAS FACED WITH,
SAY, $100,000 OF ADDITIONAL TAX, AND WHO WAS FORCED TO PAY THAT MONEY,
VERY FREQUENTLY HAD HIS CREDIT DESTROYED, AND SOMETIMES HE WAS FORCED
INTO BANKRUPTCY IN ORDER TO MEET THAT PAYMENT.  IT WAS A REAL
HARDSHIP.  THE MAN WHO HAD ALREADY PAID THE TAX HAD GONE THROUGH THE
SUFFERING, HAD FILED HIS CLAIM FOR REFUND, AND HAD HIS REMEDY.  HE HAS
THE REMEDY THAT HE HAD PRIOR TO THE CREATION OF THE BOARD."  STATEMENT
OF CHARLES D. HAMEL, FIRST CHAIRMAN OF THE BOARD OF TAX APPEALS,
HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS ON THE REVENUE
REVISION, 1925, OCT. 19 TO NOV. 3, 1925, PP. 922, 923. 

FN15  "EXCEPT AS PROVIDED IN SECTIONS 6212(A) AND (C), AND 6213(A)
(GIVING A RIGHT TO PETITION THE TAX COURT), NO SUIT FOR THE PURPOSE OF
RESTRAINING THE ASSESSMENT OR COLLECTION OF ANY TAX SHALL BE MAINTAINED
IN ANY COURT."  INT. REV. CODE, 1954, SEC. 7421.  SUCH A PROVISION HAS
BEEN IN THE LAW SINCE THE ACT OF MAR. 2, 1867, C. 169, SEC. 10, 14
STAT. 475. 

FN16  INDEED THERE DOES NOT SEEM TO BE ANY WAY OF RESTRAINING THE
COMMISSIONER FROM COLLECTING THE REMAINDER OF A DEFICIENCY EVEN AFTER
THE TAXPAYER WHO HAS PAID PART HAS WON A SUIT FOR REFUND, THE
COMMISSIONER THUS FORCING THE TAXPAYER TO BRING ANOTHER ACTION FOR
REFUND. 

FN17  SEE SECS. 7422(E) AND 6512 OF THE INTERNAL REVENUE CODE OF 1954
GIVING, RESPECTIVELY, THE DISTRICT COURTS AND THE TAX COURT
JURISDICTION OVER SUITS INVOLVING BOTH DEFICIENCIES AND CLAIMS FOR
REFUND. 

FN18  THE GOVERNMENT SUGGESTS THAT IF THIS COURT PERMITS THE
PETITIONER TO MAINTAIN HIS ACTION FOR REFUND IT WILL, AS A CONSEQUENCE,
SANCTION THE PRACTICE OF A TAXPAYER MAKING ONLY "TOKEN PAYMENT," AND
THEN, BY A SUIT FOR REFUND, ADJUDICATING THE LEGALITY OF THE ENTIRE
ASSESSMENT.  WE ARE NOT HERE CONCERNED WITH SUCH A TOTALLY DIFFERENT
QUESTION.  PETITIONER'S PAYMENT OF $5,058.54 ON AN ASSESSMENT OF
$27,251.13 CERTAINLY WAS NOT A "TOKEN PAYMENT"; NOR COULD THE SUIT TO
RECOVER THE AMOUNT PAID BE SAID TO BE ONE FOR A DECLARATORY JUDGMENT -
NOT PERMITTED "WITH RESPECT TO FEDERAL TAXES" - UNDER 28 U.S.C. SEC.
2201. 

FN19  SEE NOTE 15. 

FN20  EXCEPT FOR THE PROVISION MADE FOR A "JEOPARDY ASSESSMENT." 
INT. REV. CODE, 1954, SEC. 6861. 

FN21  SEE INT. REV. CODE, 1954, SECS. 6511, 6532, 26 U.S.C. SECS.
6511, 6532. 

FN22  THE GROSSLY UNFAIR AND, TO ME, SHOCKINGLY INEQUITABLE RESULT OF
TODAY'S HOLDING MAY BE LAID BARE BY ASSUMING A COMMONPLACE SET OF
FACTS:  TWO BROTHERS, DOING BUSINESS AS PARTNERS - ONE HAVING A 60% AND
THE OTHER A 40% INTEREST IN THE PARTNERSHIP - FAILED IN THEIR BUSINESS
WHICH WAS THEN LIQUIDATED IN BANKRUPTCY.  THEREAFTER, BASED UPON THE
PARTNERSHIP'S TRANSACTIONS, THE COMMISSIONER PROPOSED DEFICIENCY
ASSESSMENTS IN INCOME TAXES - ONE AGAINST THE MAJOR PARTNER OF $6,000
AND ANOTHER AGAINST THE MINOR ONE OF $4,000.  BEING WITHOUT FUNDS TO
EMPLOY COUNSEL TO PREPARE, FILE IN WASHINGTON, AND PROSECUTE A PETITION
FOR REDETERMINATION IN THE TAX COURT, NONE WAS FILED BY EITHER OF THE
TAXPAYERS, AND THE COMMISSIONER MADE THE ASSESSMENTS AS PROPOSED.  ONE
YEAR LATER, THEIR FATHER DIED INTESTATE, AND THEREUPON THE FAMILY
HOMESTEAD VESTED EQUALLY IN HIS TWO SONS (THE TAXPAYERS) UNDER THE
STATE'S LAWS OF DESCENT.  THE TAX LIENS WERE, OF COURSE, INSTANTLY
IMPRESSED UPON THEIR RESPECTIVE INTERESTS, AND, UNDER WARRANTS OF
DISTRAINT, THE COMMISSIONER SOLD THE HOMESTEAD.  IT BROUGHT A TOTAL OF
$8,500 ($4,250 FOR THE INTEREST OF EACH OF THE TAXPAYERS).  THIS, OR
COURSE, SATISFIED THE ASSESSMENT AND ACCRUED INTEREST AGAINST THE MINOR
PARTNER, BUT LEFT UNPAID ABOUT $2,000 OF THE ASSESSMENT AND ACCRUED
INTEREST AGAINST THE MAJOR PARTNER.  BOTH FILED CLAIMS FOR REFUND,
WHICH WERE DENIED.  THE TAXPAYERS THEN FILED SEPARATE SUITS, PRESENTING
IDENTICAL ISSUES, IN THE SAME FEDERAL DISTRICT COURT TO RECOVER THE
TAXES AND INTEREST THUS COLLECTED BY THE COMMISSIONER.  THE CASES WERE
CONSOLIDATED FOR TRIAL.  THE COURT FOUND THAT THE ASSESSMENTS WERE
ILLEGAL AND THE TAXES WRONGFULLY COLLECTED.  THE PROCEEDS OF THE SALE
OF THE MINOR TAXPAYER'S INTEREST BEING SUFFICIENT TO DISCHARGE THE
ILLEGAL ASSESSMENT AND ACCRUED INTEREST AGAINST HIM, THE COURT RENDERED
JUDGMENT IN HIS FAVOR FOR THE SUM THUS WRONGFULLY COLLECTED.  BUT,
INASMUCH AS THE PROCEEDS OF THE SALE WERE NOT SUFFICIENT TO DISCHARGE
THE ILLEGAL ASSESSMENT AGAINST THE MAJOR PARTNER, AND HE WAS
FINANCIALLY UNABLE TO PAY THE BALANCE OF IT, THE COURT HELD THAT IT
LACKED JURISDICTION TO ALLOW HIS RECOVERY OF THE $4,250 THUS FOUND TO
HAVE BEEN WRONGFULLY COLLECTED FROM HIM UNDER THE INTERNAL REVENUE
LAWS.  IS THIS FAIR?  IS IT NOT SHOCKING?  MORE TO THE POINT, IS NOT
THAT RESULT PLAINLY PROSCRIBED BY CONGRESS' WORDS IN SEC. 1346(A) THAT:
"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION  ...  OF  ...
ANY CIVIL ACTION AGAINST THE UNITED STATES FOR THE RECOVERY OF  ...
ANY SUM ALLEGED TO HAVE BEEN EXCESSIVE OR IN ANY MANNER WRONGFULLY
COLLECTED UNDER THE INTERNAL-REVENUE LAWS"? 
..END :












NATIONAL LABOR RELATIONS BOARD V. DUVAL JEWELRY COMPANY OF MIAMI, INC.
357 U.S. 1 


NO. 234.  ARGUED MAY 20, 1958 - DECIDED JUNE 9, 1958 - 234 F.2D 427,
REVERSED AND CAUSE REMANDED. 


IN A PROCEEDING UNDER THE NATIONAL LABOR RELATIONS ACT BY A UNION TO
OBTAIN A REPRESENTATION ELECTION AMONG THE EMPLOYEES OF A RETAIL STORE,
SUBPOENAS DUCES TECUM WERE ISSUED, DIRECTED TO RESPONDENTS, WHO MOVED
BEFORE BOTH THE BOARD AND THE HEARING OFFICER TO REVOKE THEM.  THE
BOARD REFUSED TO ENTERTAIN THE MOTIONS ON THE GROUND THAT, UNDER ITS
RULES AND REGULATIONS, THEY REQUIRED AN INITIAL RULING BY THE HEARING
OFFICER.  THAT OFFICER DENIED THE MOTIONS; THE RULING WAS NOT APPEALED;
RESPONDENTS REFUSED TO COMPLY WITH THE SUBPOENAS; AND THE BOARD
INSTITUTED PROCEEDINGS IN THE DISTRICT COURT TO ENFORCE THEM.  THE
DISTRICT COURT QUASHED THEM, AND THE COURT OF APPEALS SUSTAINED THE
DISTRICT COURT, ON THE GROUND THAT THE BOARD ALONE COULD RULE ON
MOTIONS TO REVOKE SUBPOENAS DUCES TECUM IN REPRESENTATION PROCEEDINGS. 
HELD:  THOUGH SEC. 11(1) OF THE ACT GIVES A PERSON SERVED WITH A
SUBPOENA DUCES TECUM THE RIGHT TO PETITION THE BOARD TO REVOKE IT,
THERE IS NO ILLEGALITY IN THE BOARD'S DELEGATION OF AUTHORITY TO THE
HEARING OFFICER TO MAKE A PRELIMINARY RULING ON SUCH A MOTION, SINCE
THE BOARD RESERVES TO ITSELF THE FINAL DECISION.  THEREFORE, THE
JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS.  PP. 2-8. 

(A)  CUDAHY PACKING CO. V. HOLLAND, 315 U.S. 357, AND FLEMING V.
MOHAWK WRECKING CO., 331 U.S. 111, DISTINGUISHED.  P. 7. 

(B)  THAT SPECIAL PERMISSION OF THE BOARD IS REQUIRED FOR AN APPEAL
IS NOT IMPORTANT, SINCE THAT IS MERELY A METHOD OF ASCERTAINING WHETHER
A SUBSTANTIAL QUESTION IS RAISED CONCERNING THE VALIDITY OF THE
SUBORDINATE'S RULING, AND A DECISION BY THE BOARD THAT NO SUBSTANTIAL
QUESTION IS RAISED SATISFIES THE REQUIREMENTS OF SEC. 11(1).  PP. 7-8. 

NATIONAL LABOR RELATIONS BOARD V. DUVAL JEWELRY COMPANY OF MIAMI, INC.,
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY GROWS OUT OF AN EFFORT OF A UNION TO OBTAIN A
REPRESENTATION ELECTION (FN1) AMONG THE EMPLOYEES OF RESPONDENT, DUVAL
JEWELRY CO., A RETAIL STORE.  THE LATTER MOVED TO DISMISS ON THE GROUND
THAT ITS INTERSTATE OPERATIONS WERE INADEQUATE TO MEET THE
JURISDICTIONAL TESTS OF THE ACT.  FIVE SUBPOENAS DUCES TECUM AND ONE
SUBPOENA AD TESTIFICANDUM WERE ISSUED.  (FN2)  THE PERSONS TO WHOM THE
SUBPOENAS WERE DIRECTED MOVED BEFORE BOTH THE BOARD AND THE HEARING
OFFICER TO REVOKE THE SUBPOENAS.  (FN3)  THE BOARD REFUSED TO ENTERTAIN
THE MOTIONS TO REVOKE ON THE GROUNDS THAT THOSE MOTIONS, UNDER ITS
RULES AND REGULATIONS, (FN4) REQUIRE AN INITIAL RULING BY THE HEARING
OFFICER.  THAT OFFICER AFTER GRANTING AN OPPORTUNITY FOR A HEARING
DENIED THE MOTIONS TO REVOKE.  THAT RULING WAS NOT APPEALED; AND
RESPONDENTS REFUSED TO COMPLY WITH THE SUBPOENAS.  THEREUPON THE BOARD
INSTITUTED THIS PROCEEDING IN THE DISTRICT COURT FOR ENFORCEMENT OF
THEM.  (FN5) 

THE DISTRICT COURT QUASHED THE SUBPOENAS HOLDING THEM UNREASONABLE
AND OPPRESSIVE.  IT ALSO HELD THEY HAD BEEN INVALIDLY ISSUED.  141 F.
SUPP. 860.  THE COURT OF APPEALS REVERSED THE DISTRICT COURT ON THE
SUBPOENA AD TESTIFICANDUM; AND NO QUESTION CONCERNING IT IS BEFORE US.
BUT IT UPHELD THE DISTRICT COURT AS RESPECTS THE SUBPOENAS DUCES TECUM,
ON THE GROUND THAT THE BOARD ALONE COULD RULE ON MOTIONS TO REVOKE
SUBPOENAS DUCES TECUM IN REPRESENTATION PROCEEDINGS.  243 F.2D 427. 
THE CASE IS HERE ON A WRIT OF CERTIORARI, 355 U.S. 809, WHICH WE
GRANTED BECAUSE OF A CONFLICT AMONG THE CIRCUITS.  SEE, E.G., LABOR
BOARD V. LEWIS, 249 F.2D 832, 836-837; LABOR BOARD V. GUNACA, 135 F.
SUPP. 790, AFF'D 230 F.2D 542. 

THERE IS A DEGREE OF DELEGATION OF AUTHORITY IN CONNECTION WITH A
MOTION TO REVOKE A SUBPOENA DUCES TECUM.  THE BOARD'S RULES AND
REGULATIONS PROVIDE THAT A MOTION TO REVOKE IS FIRST HEARD BY THE
REGIONAL DIRECTOR OR BY THE HEARING OFFICER.  (FN6)  BUT THE RULING OF
THAT SUBORDINATE OFFICIAL IS NOT FINAL.  MACHINERY IS PROVIDED IN THE
RULES FOR AN APPEAL FROM THAT RULING TO THE BOARD.  (FN7)  WE ARE
ADVISED THAT IN PRACTICE THE AGGRIEVED PARTY ASKS THE BOARD FOR LEAVE
TO APPEAL, STATING THE GROUNDS RELIED UPON.  THE BOARD IN DECIDING
WHETHER TO GRANT THE APPEAL CONSIDERS THE MERITS.  IF NO SUBSTANTIAL
QUESTION HAS BEEN RAISED, LEAVE TO APPEAL IS DENIED.  IF A SUBSTANTIAL
QUESTION IS PRESENTED, LEAVE TO APPEAL IS GRANTED.  SOMETIMES WHEN
LEAVE TO APPEAL IS GRANTED, ACTION IS FORTHWITH TAKEN ON THE MERITS,
THE RULING OF THE HEARING OFFICER BEING REVERSED OR MODIFIED.  (FN8)
OR WHERE AN IMMEDIATE RULING BY THE BOARD ON A MOTION TO REVOKE IS NOT
REQUIRED, THE BOARD DEFERS ITS RULING UNTIL THE ENTIRE CASE IS
TRANSFERRED TO IT IN NORMAL COURSE.  (FN9) 

A SUBPOENA DUCES TECUM THE RIGHT TO "PETITION THE BOARD TO REVOKE"; AND
THAT SECTION PROVIDES THAT "THE BOARD SHALL REVOKE  ...  SUCH SUBPENA
IF IN ITS OPINION" THE STATUTORY REQUIREMENTS ARE NOT SATISFIED.  THE
LIMITED NATURE OF THE DELEGATED AUTHORITY DISTINGUISHES THE CASE FROM
CUDAHY PACKING CO. V. HOLLAND, 315 U.S. 357, AND FLEMING V. MOHAWK
WRECKING CO., 331 U.S. 111, WHERE THE PERSON ENDOWED WITH THE POWER TO
ISSUE SUBPOENAS DELEGATED THE FUNCTION TO ANOTHER.  WHILE THERE IS
DELEGATION HERE, THE ULTIMATE DECISION ON A MOTION TO REVOKE IS
RESERVED TO THE BOARD, NOT TO A SUBORDINATE.  ALL THAT THE BOARD HAS
DELEGATED IS THE PRELIMINARY RULING ON THE MOTION TO REVOKE.  IT
RETAINS THE FINAL DECISION ON THE MERITS.  ONE WHO IS AGGRIEVED BY THE
RULING OF THE REGIONAL DIRECTOR OR HEARING OFFICER CAN GET THE BOARD'S
RULING.  THE FACT THAT SPECIAL PERMISSION OF THE BOARD IS REQUIRED FOR
THE APPEAL (FN11) IS NOT IMPORTANT.  MOTION FOR LEAVE TO APPEAL IS THE
METHOD OF SHOWING THAT A SUBSTANTIAL QUESTION IS RAISED CONCERNING THE
VALIDITY OF THE SUBORDINATE'S RULING.  IF THE BOARD DENIES LEAVE, IT
HAS DECIDED THAT NO SUBSTANTIAL QUESTION IS PRESENTED.  WE THINK THAT
NO MORE IS REQUIRED OF IT UNDER THE STATUTORY SYSTEM EMBODIED IN SEC.
11.  NO MATTER HOW STRICT OR STUBBORN THE STATUTORY REQUIREMENT MAY BE,
THE LAW DOES NOT "PRECLUDE PRACTICABLE ADMINISTRATIVE PROCEDURE IN
OBTAINING THE AID OF ASSISTANTS IN THE DEPARTMENT."  SEE MORGAN V.
UNITED STATES, 298 U.S. 468, 481; EAGLES V. SAMUELS, 329 U.S. 304, 315,
316.  IT IS NOT OF HELP TO SAY THAT ON SOME MATTERS THE BOARD HAS
ORIGINAL JURISDICTION, ON OTHERS APPELLATE JURISDICTION.  WE ARE
DEALING WITH A MATTER ON WHICH THE BOARD HAS THE FINAL SAY.  AS IN THE
CASE OF MANY OTHER MATTERS COMING BEFORE HEARING EXAMINERS, IT MERELY
DELEGATES THE RIGHT TO MAKE A PRELIMINARY RULING.  MUCH OF THE WORK OF
THE BOARD NECESSARILY HAS TO BE DONE THROUGH AGENTS.  SECTION 5 OF THE
ACT PROVIDES THAT "THE BOARD MAY, BY ONE OR MORE OF ITS MEMBERS OR BY
SUCH AGENTS OR AGENCIES AS IT MAY DESIGNATE, PROSECUTE ANY INQUIRY
NECESSARY TO ITS FUNCTIONS IN ANY PART OF THE UNITED STATES."  AS WE
HAVE SEEN, (FN12) HEARINGS ON THESE REPRESENTATION CASES "MAY BE
CONDUCTED BY AN OFFICER OR EMPLOYEE OF THE REGIONAL OFFICE."  CERTAINLY
PRELIMINARY RULINGS ON SUBPOENA QUESTIONS ARE AS MUCH IN THE PURVIEW OF
A HEARING OFFICER AS HIS RULINGS ON EVIDENCE AND THE MYRIAD OF
QUESTIONS DAILY PRESENTED TO HIM.  HE DOES NOT, OF COURSE, HAVE THE
FINAL WORD.  ULTIMATE DECISION ON THE MERITS OF ALL THE ISSUES COMING
BEFORE HIM IS LEFT TO THE BOARD.  THAT IS TRUE OF MOTIONS TO REVOKE
SUBPOENAS DUCES TECUM, AS WELL AS OTHER ISSUES OF LAW AND FACT.  THAT
DEGREE OF DELEGATION SEEMS TO US WHOLLY PERMISSIBLE UNDER THIS
STATUTORY SYSTEM.  WE NEED NOT GO FURTHER AND CONSIDER THE LEGALITY OF
THE MORE COMPLETE TYPE OF DELEGATION TO WHICH MOST OF THE ARGUMENT IN
THE CASE HAS BEEN DIRECTED. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF
APPEALS FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  SECTION 9(C)(1) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
61 STAT. 136, 29 U.S.C. SEC. 159, PROVIDES IN PART: 

"WHENEVER A PETITION SHALL HAVE BEEN FILED, IN ACCORDANCE WITH SUCH
REGULATIONS AS MAY BE PRESCRIBED BY THE BOARD: 

    *         *         *         *         * 

"THE BOARD SHALL INVESTIGATE SUCH PETITION AND IF IT HAS REASONABLE
CAUSE TO BELIEVE THAT A QUESTION OF REPRESENTATION AFFECTING COMMERCE
EXISTS SHALL PROVIDE FOR AN APPROPRIATE HEARING UPON DUE NOTICE.  SUCH
HEARING MAY BE CONDUCTED BY AN OFFICER OR EMPLOYEE OF THE REGIONAL
OFFICE, WHO SHALL NOT MAKE ANY RECOMMENDATIONS WITH RESPECT THERETO. 
IF THE BOARD FINDS UPON THE RECORD OF SUCH HEARING THAT SUCH A QUESTION
OF REPRESENTATION EXISTS, IT SHALL DIRECT AN ELECTION BY SECRET BALLOT
AND SHALL CERTIFY THE RESULTS THEREOF." 

FN2  SECTION 11(1) OF THE ACT PROVIDES IN PART: 

"FOR THE PURPOSE OF ALL HEARINGS AND INVESTIGATIONS, WHICH, IN THE
OPINION OF THE BOARD, ARE NECESSARY AND PROPER FOR THE EXERCISE OF THE
POWERS VESTED IN IT BY SECTION 9 AND SECTION 10: 

"(1)  THE BOARD, OR ITS DULY AUTHORIZED AGENTS OR AGENCIES, SHALL AT
ALL REASONABLE TIMES HAVE ACCESS TO, FOR THE PURPOSE OF EXAMINATION,
AND THE RIGHT TO COPY ANY EVIDENCE OF ANY PERSON BEING INVESTIGATED OR
PROCEEDED AGAINST THAT RELATES TO ANY MATTER UNDER INVESTIGATION OR IN
QUESTION.  THE BOARD, OR ANY MEMBER THEREOF, SHALL UPON APPLICATION OF
ANY PARTY TO SUCH PROCEEDINGS, FORTHWITH ISSUE TO SUCH PARTY SUBPOENAS
REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES OR THE PRODUCTION
OF ANY EVIDENCE IN SUCH PROCEEDING OR INVESTIGATION REQUESTED IN SUCH
APPLICATION." 

CUM. POCKET SUPP., SEC. 102.58(C), PROVIDES: 

"APPLICATIONS FOR SUBPENAS MAY BE FILED IN WRITING BY ANY PARTY, WITH
THE REGIONAL DIRECTOR IF MADE PRIOR TO HEARING, OR WITH THE HEARING
OFFICER IF MADE AT THE HEARING.  APPLICATIONS FOR SUBPENAS MAY BE MADE
EX PARTE.  THE REGIONAL DIRECTOR OR THE HEARING OFFICER, AS THE CASE
MAY BE, SHALL FORTHWITH GRANT THE SUBPENAS REQUESTED.  ANY PERSON
SUBPENAED, IF HE DOES NOT INTEND TO COMPLY WITH THE SUBPENA, SHALL,
WITHIN 5 DAYS AFTER THE DATE OF SERVICE OF THE SUBPENA, PETITION IN
WRITING TO REVOKE THE SUBPENA.  SUCH PETITION SHALL BE FILED WITH THE
REGIONAL DIRECTOR WHO MAY EITHER RULE UPON IT OR REFER IT FOR RULING TO
THE HEARING OFFICER:  PROVIDED, HOWEVER, THAT IF THE EVIDENCE CALLED
FOR IS TO BE PRODUCED AT A HEARING AND THE HEARING HAS OPENED, THE
PETITION TO REVOKE SHALL BE FILED WITH THE HEARING OFFICER.  NOTICE OF
THE FILING OF PETITIONS TO REVOKE SHALL BE PROMPTLY GIVEN BY THE
REGIONAL DIRECTOR OR HEARING OFFICER, AS THE CASE MAY BE, TO THE PARTY
AT WHOSE REQUEST THE SUBPENA WAS ISSUED.  THE REGIONAL DIRECTOR OR THE
HEARING OFFICER, AS THE CASE MAY BE, SHALL REVOKE THE SUBPENA IF, IN
HIS OPINION, THE EVIDENCE WHOSE PRODUCTION IS REQUIRED DOES NOT RELATE
TO ANY MATTER UNDER INVESTIGATION OR IN QUESTION IN THE PROCEEDINGS OR
THE SUBPENA DOES NOT DESCRIBE WITH SUFFICIENT PARTICULARITY THE
EVIDENCE WHOSE PRODUCTION IS REQUIRED.  THE REGIONAL DIRECTOR OR THE
HEARING OFFICER, AS THE CASE MAY BE, SHALL MAKE A SIMPLE STATEMENT OF
PROCEDURAL OR OTHER GROUNDS FOR HIS RULING.  THE PETITION TO REVOKE,
ANY ANSWER FILED THERETO, AND ANY RULING THEREON, SHALL NOT BECOME PART
OF THE RECORD EXCEPT UPON THE REQUEST OF THE PARTY AGGRIEVED BY THE
RULING.  PERSONS COMPELLED TO SUBMIT DATA OR EVIDENCE ARE ENTITLED TO
RETAIN OR, ON PAYMENT OF LAWFULLY PRESCRIBED COSTS, TO PROCURE, COPIES
OR TRANSCRIPTS OF THE DATA OR EVIDENCE SUBMITTED BY THEM." 

FOR THE COUNTERPART OF THIS REGULATION IN UNFAIR LABOR PRACTICE CASES
SEE SEC. 102.31. 

THE SUBPOENAS IN THE INSTANT CASE WERE ISSUED BY THE REGIONAL
DIRECTOR UPON APPLICATION OF THE BOARD'S ATTORNEY ASSIGNED TO THE
CASE.  THESE SUBPOENAS CONTAINED THE SEAL OF THE BOARD AND THE
FACSIMILE SIGNATURE OF A BOARD MEMBER.  SEE SEC. 102.31(A) OF THE
BOARD'S RULES AND REGULATIONS. 

FN3  SECTION 11(1) OF THE ACT CONTAINS THE FOLLOWING PROVISION
RESPECTING THE REVOCATION OF SUBPOENAS: 

"WITHIN FIVE DAYS AFTER THE SERVICE OF A SUBPENA ON ANY PERSON
REQUIRING THE PRODUCTION OF ANY EVIDENCE IN HIS POSSESSION OR UNDER HIS
CONTROL, SUCH PERSON MAY PETITION THE BOARD TO REVOKE, AND THE BOARD
SHALL REVOKE, SUCH SUBPENA IF IN ITS OPINION THE EVIDENCE WHOSE
PRODUCTION IS REQUIRED DOES NOT RELATE TO ANY MATTER UNDER
INVESTIGATION, OR ANY MATTER IN QUESTION IN SUCH PROCEEDINGS, OR IF IN
ITS OPINION SUCH SUBPENA DOES NOT DESCRIBE WITH SUFFICIENT
PARTICULARITY THE EVIDENCE WHOSE PRODUCTION IS REQUIRED." 

FN4  SEE SEC. 102.58(C), SUPRA, NOTE 2. 

FN5  SECTION 11(2) OF THE ACT PROVIDES: 

"IN CASE OF CONTUMACY OR REFUSAL TO OBEY A SUBPENA ISSUED TO ANY
PERSON, ANY DISTRICT COURT OF THE UNITED STATES OR THE UNITED STATES
COURTS OF ANY TERRITORY OR POSSESSION, OR THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT OF COLUMBIA, WITHIN THE JURISDICTION OF
WHICH THE INQUIRY IS CARRIED ON OR WITHIN THE JURISDICTION OF WHICH
SAID PERSON GUILTY OF CONTUMACY OR REFUSAL TO OBEY IS FOUND OR RESIDES
OR TRANSACTS BUSINESS, UPON APPLICATION BY THE BOARD SHALL HAVE
JURISDICTION TO ISSUE TO SUCH PERSON AN ORDER REQUIRING SUCH PERSON TO
APPEAR BEFORE THE BOARD, ITS MEMBER, AGENT, OR AGENCY, THERE TO PRODUCE
EVIDENCE IF SO ORDERED, OR THERE TO GIVE TESTIMONY TOUCHING THE MATTER
UNDER INVESTIGATION OR IN QUESTION; AND ANY FAILURE TO OBEY SUCH ORDER
OF THE COURT MAY BE PUNISHED BY SAID COURT AS A CONTEMPT THEREOF." 

FN6  SEE SEC. 102.58(C), SUPRA, NOTE 2. 

FN7  SECTION 102.57(C) PROVIDES: 

"ALL MOTIONS, RULINGS, AND ORDERS SHALL BECOME A PART OF THE RECORD,
EXCEPT THAT RULINGS ON MOTIONS TO REVOKE SUBPENAS SHALL BECOME A PART
OF THE RECORD ONLY UPON THE REQUEST OF THE PARTY AGGRIEVED, AS PROVIDED
IN SEC. 102.58(C).  UNLESS EXPRESSLY AUTHORIZED BY THE RULES AND
REGULATIONS IN THIS PART, RULINGS BY THE REGIONAL DIRECTOR AND BY THE
HEARING OFFICER SHALL NOT BE APPEALED DIRECTLY TO THE BOARD EXCEPT BY
SPECIAL PERMISSION OF THE BOARD, BUT SHALL BE CONSIDERED BY THE BOARD
WHEN IT REVIEWS THE ENTIRE RECORD.  REQUESTS TO THE BOARD FOR SPECIAL
PERMISSION TO APPEAL FROM SUCH RULINGS OF THE REGIONAL DIRECTOR OR THE
HEARING OFFICER SHALL BE FILED PROMPTLY, IN WRITING, AND SHALL BRIEFLY
STATE THE GROUNDS RELIED ON.  THE MOVING PARTY SHALL IMMEDIATELY SERVE
A COPY THEREOF ON EACH OTHER PARTY." 

THE FOREGOING REGULATION APPLIES IN REPRESENTATION PROCEEDINGS.  FOR
ITS COUNTERPART IN UNFAIR LABOR PRACTICE CASES SEE SEC. 102.26. 

FN8  THE BOARD HAS SUBMITTED THE FOLLOWING STATISTICS: 

"AN ANALYSIS OF THE BOARD'S RECORDS FOR THE THREE-YEAR PERIOD MAY 1,
1955, THROUGH APRIL 30, 1958, REVEALS THAT THERE WERE THIRTEEN REQUESTS
FOR PERMISSION TO APPEAL SPECIALLY FROM RULINGS BY HEARING OFFICERS AND
TRIAL EXAMINERS ON PETITIONS TO REVOKE SUBPENAS; THAT FIVE OF THESE
REQUESTS WERE GRANTED BY THE BOARD; AND THAT ON FOUR OF THESE APPEALS
THE HEARING OFFICER OR TRIAL EXAMINER WAS REVERSED AND THE SUBPENAS
REVOKED, AND THAT ON ONE APPEAL THE HEARING OFFICER OR TRIAL EXAMINER
WAS SUSTAINED."    FN9  SEE NOTE 2, SUPRA.  IN HERTNER ELECTRIC CO.,
115 N.L.R.B. 820, 821-822; JAMESTOWN STERLING CORP., 106 N.L.R.B. 466,
469; INTERNATIONAL FURNITURE CO., 106 N.L.R.B. 127, 128, N. 2; BELL
AIRCRAFT CORP., 98 N.L.R.B. 1277, 1282, N. 4; BURNUP & SIMS, INC., 95
N.L.R.B.  1130, N. 1; MORRISON TURNING CO., 83 N.L.R.B. 687, 688, THE
BOARD DECIDED THE CASES ON THE MERITS AND ALSO REVIEWED THE DECISIONS
OF THE HEARING OFFICER OR TRIAL EXAMINER TO EITHER REVOKE OR REFUSE TO
REVOKE A SUBPOENA. 

FN10  SEE NOTE 3, SUPRA.    FN11  SEE NOTE 7, SUPRA. 

FN12  SEE SEC. 9(C)(1), SUPRA, NOTE 1. 

MR. JUSTICE WHITTAKER, CONCURRING. 

I CONCUR IN THE COURT'S DECISION, BUT DESIRE BRIEFLY TO STATE MY
REASONS. 

ALTHOUGH IN A STRICT LEGAL SENSE THE BOARD HAS NOT DELEGATED ITS DUTY
UNDER SEC. 11(1) TO RULE UPON MOTIONS TO REVOKE SUBPOENAS DUCES TECUM,
BUT HAS, BY SEC. 102.58(C) OF ITS RULES AND REGULATIONS, MERELY GIVEN
TO ITS REGIONAL DIRECTORS, HEARING OFFICERS OR EXAMINERS THE TASK OF
MAKING PRELIMINARY OR INTERIM RULINGS ON SUCH MOTIONS - RECOGNIZING, IN
SEC. 102.57(C) OF ITS RULES AND REGULATIONS, ITS STATUTORY DUTY FINALLY
TO RULE UPON SUCH MOTIONS EITHER UPON AN IMMEDIATE, THOUGH
DISCRETIONARY, INTERLOCUTORY APPEAL OR UPON REVIEW OF THE COMPLETED
RECORD IN THE COURSE OF ITS DECISION OF THE WHOLE PROCEEDING - YET, AS
A PRACTICAL MATTER, NEITHER SUCH DISCRETIONARY APPEAL NOR REVIEW OF THE
COMPLETED RECORD AFFORDS ANY CERTAINTY OF THE PROTECTION SPECIFIED BY
CONGRESS, IN SEC. 11(1), TO BE GIVEN BY THE BOARD AGAINST AN IMPROPER
OR OPPRESSIVE SUBPOENA DUCES TECUM.  FOR, NOTWITHSTANDING ITS DUTY
UNDER SEC. 11(1), THE BOARD, UNDER SEC. 102.57(C) OF ITS RULES AND
REGULATIONS, MAY REFUSE TO ALLOW SUCH INTERLOCUTORY APPEAL AND, HENCE,
REFUSE TO RULE UPON THE MOTION TO REVOKE IN ADVANCE OF THE TIME FIXED
BY SUCH SUBPOENA FOR COMPLIANCE.  IT IS OBVIOUS THAT, AFTER THE ILLEGAL
OR OPPRESSIVE SUBPOENA HAS BEEN ENFORCED, THE BOARD ON ITS REVIEW OF
THE COMPLETED RECORD CAN NO MORE RELIEVE THE CONSUMMATED OPPRESSION
THAN IT CAN UNRING A BELL.  BUT, AS THE COURT'S OPINION POINTS OUT,
CONGRESS HAS PROVIDED, IN SEC. 11(2), THAT THE BOARD'S SUBPOENAS MAY BE
ENFORCED ONLY BY A UNITED STATES DISTRICT COURT, AND THUS AN EFFECTIVE
MEANS EXISTS TO REVOKE AN ILLEGAL OR OPPRESSIVE SUBPOENA DUCES TECUM
BEFORE THE DAMAGE HAS BEEN DONE.  FOR THIS PRACTICAL REASON I ACCEPT
THE LEGALISMS OF THE BOARD'S NONDELEGATION ARGUMENT AND CONCUR IN THE
DECISION OF THE COURT. 
..END :




LEWIS V. NATIONAL LABOR RELATIONS BOARD 357 U.S. 10 


NO. 684.  ARGUED MAY 21, 1958 - DECIDED JUNE 9, 1958 - 249 F.2D 832,
AFFIRMED. 


IN AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE NATIONAL LABOR
RELATIONS ACT, SUBPOENAS DUCES TECUM AND AD TESTIFICANDUM DIRECTED TO
PETITIONERS WERE ISSUED BY THE REGIONAL DIRECTOR UNDER THE SEAL OF THE
BOARD AND THE FACSIMILE SIGNATURE OF A MEMBER, AT THE REQUEST OF THE
BOARD'S GENERAL COUNSEL.  PETITIONERS MOVED THAT THE BOARD REVOKE THE
SUBPOENAS; THE BOARD REFERRED THE MOTIONS TO THE TRIAL EXAMINER; HE
DENIED THEM; PETITIONERS REFUSED TO COMPLY; AND THE BOARD SUED IN THE
DISTRICT COURT FOR THEIR ENFORCEMENT.  HELD:  THE DISTRICT COURT SHOULD
HAVE ORDERED COMPLIANCE WITH THE SUBPOENAS.  PP. 11-16. 

1.  THE BOARD'S ACTION IN REFERRING THE MOTIONS TO THE TRIAL EXAMINER
WAS NOT ILLEGAL.  PP. 12-14. 

(A)  UNDER SEC. 11(1) OF THE ACT, THE BOARD'S EXPRESS AUTHORITY TO
REVOKE SUBPOENAS EXTENDS ONLY TO THOSE "REQUIRING THE PRODUCTION OF ANY
EVIDENCE," NOT TO THOSE REQUIRING THE ATTENDANCE AND TESTIMONY OF
WITNESSES.  P. 12. 

(B)  THE BOARD DID NOT ACT ILLEGALLY IN DELEGATING TO THE TRIAL
EXAMINER THE POWER TO MAKE A PRELIMINARY RULING ON THE MOTIONS TO
REVOKE THE SUBPOENAS DUCES TECUM, SINCE THE FINAL DECISION WAS RESERVED
TO THE BOARD.  LABOR BOARD V. DUVAL JEWELRY CO., ANTE, P. 1.  PP. 12
13. 

(C)  THE BOARD'S POWER UNDER SEC. 6 OF THE ACT "TO MAKE  ...  SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS
OF THIS ACT" INCLUDES THE POWER TO MAKE THE REVOCATION PROCEDURE
APPLICABLE TO SUBPOENAS AD TESTIFICANDUM.  P. 14. 

2.  SINCE THE ISSUANCE OF SUBPOENAS BY "THE BOARD, OR ANY MEMBER
THEREOF" UPON APPLICATION OF ANY PARTY IS MANDATORY UNDER SEC. 11(1),
IT INVOLVES NO EXERCISE OF DISCRETION BUT IS A MERE MINISTERIAL ACT
WHICH THE BOARD MAY LAWFULLY DELEGATE TO ITS AGENTS.  PP.14-15. 

3.  THE GENERAL COUNSEL OF THE BOARD IS A "PARTY" IN AN UNFAIR LABOR
PRACTICE PROCEEDING, WITHIN THE MEANING OF SEC. 11(1), AND SUBPOENAS
MAY LAWFULLY BE ISSUED UPON HIS REQUEST.  PP. 15-16. 

LEWIS ET AL. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO LABOR BOARD V. DUVAL JEWELRY CO., ANTE,
P. 1, DECIDED THIS DAY.  WHILE THE LATTER WAS A REPRESENTATION
PROCEEDING UNDER THE NATIONAL LABOR RELATIONS ACT, THE PRESENT CASE IS
AN UNFAIR LABOR PRACTICE PROCEEDING.  IT WAS COMMENCED ON THE ISSUANCE
OF A COMPLAINT CHARGING VIOLATIONS OF SEC. 8 OF THE ACT, 61 STAT. 136,
140, 29 U.S.C. SEC. 158, BOTH BY PETITIONER-EMPLOYER AND BY PETITIONER
UNION.  SUBPOENAS DUCES TECUM AND AD TESTIFICANDUM WERE ISSED BY THE
REGIONAL DIRECTOR UNDER THE SEAL OF THE BOARD AND THE FACSIMILE
SIGNATURE OF A MEMBER.  ON THE DAY OF THE HEARING PETITIONERS ALL MOVED
THAT THE SUBPOENAS BE REVOKED.  ONE GROUND WAS THAT THEY HAD NOT BEEN
PROPERLY ISSUED.  ANOTHER WAS THAT THEY WERE ISSUED AT THE REQUEST OF
THE GENERAL COUNSEL OF THE BOARD WHO, IT WAS ALLEGED, WAS NOT A "PARTY"
TO THE PROCEEDING WITHIN THE MEANING OF THE ACT.  (FN1)  THE MOTIONS,
WHICH WERE ADDRESSED TO THE BOARD, WERE REFERRED TO THE TRIAL EXAMINER
OVER OBJECTION OF PETITIONERS.  HE DENIED THEM.  PETITIONERS REFUSED TO
APPEAR IN RESPONSE TO THE SUBPOENAS; AND THE HEARING WAS CONTINUED
UNTIL THEY COULD BE ENFORCED.  THEREAFTER THE PRESENT SUIT WAS
INSTITUTED IN THE DISTRICT COURT FOR THEIR ENFORCEMENT.  THE DISTRICT
COURT DENIED ENFORCEMENT ON THE AUTHORITY OF LABOR BOARD V. PESANTE,
119 F. SUPP. 444.  THE COURT OF APPEALS REVERSED.  249 F.2D 832.  THE
CASE IS HERE ON A WRIT OF CERTIORARI.  355 U.S. 929. 

1.  DELEGATION OF AUTHORITY OVER THE REVOCATION OF SUBPOENAS.  - THE
EXPRESS AUTHORITY OF THE BOARD TO REVOKE EXTENDS ONLY TO SUBPOENAS
"REQUIRING THE PRODUCTION OF ANY EVIDENCE," NOT TO SUBPOENAS REQUIRING
THE ATTENDANCE AND TESTIMONY OF WITNESSES.  (FN2)  SO THE ARGUMENT THAT
CONGRESS HAD DISALLOWED DELEGATION EXTENDS ONLY TO THE SUBPOENAS DUCES
TECUM.  WHAT WE HAVE SAID IN LABOR BOARD V. DUVAL JEWELRY CO., SUPRA,
DISPOSES OF THE ARGUMENT THAT THE BOARD HAS NO AUTHORITY TO DELEGATE TO
A TRIAL EXAMINER THE POWER TO RULE ON MOTIONS TO REVOKE THOSE SUBPOENAS
(FN3) RESERVING TO ITSELF THE FINAL DECISION IN THE MATTER.  (FN4)  THE
PROVISIONS OF THOSE RULES BEING SUBSTANTIALLY THE SAME IN THIS TYPE OF
CASE AS IN THE REPRESENTATION CASES, THE RESULTS IN THE TWO CASES
SHOULD BE THE SAME.  WE THEREFORE FIND IT UNNECESSARY TO CONSIDER THE
ARGUMENT PRESSED ON US THAT SEC. 7(B) OF THE ADMINISTRATIVE PROCEDURE
ACT, (FN5) 60 STAT. 237, 241, 5 U.S.C. SEC. 1006, GRANTS A POWER
WITHHELD BY THE NATIONAL LABOR RELATIONS ACT.  THE POWER TO MAKE THE
REVOCATION PROCEDURE APPLICABLE TO SUBPOENAS AD TESTIFICANDUM SEEMS
CLEAR FROM THE AUTHORITY OF THE BOARD CONTAINED IN SEC. 6 OF THE ACT
"TO MAKE  ...  SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY
OUT THE PROVISIONS OF THIS ACT." 

2.  ISSUANCE OF SUBPOENAS BY THE REGIONAL DIRECTOR.  - THE ACT MAKES
CLEAR (FN6) THAT THE ISSUANCE OF SUBPOENAS IS MANDATORY.  "THE BOARD,
OR ANY MEMBER THEREOF, SHALL UPON APPLICATION OF ANY PARTY ...
FORTHWITH ISSUE  ...  SUBPENAS  ...  ."  THE ONLY FUNCTION REMAINING IS
MINISTERIAL.  (FN7) CONSEQUENTLY THE BOARD SUPPLIES BLANK SUBPOENAS
BEARING ITS SEAL AND THE FACSIMILE SIGNATURE OF A BOARD MEMBER TO ITS
REGIONAL OFFICES AND TRIAL EXAMINERS.  UPON APPLICATION OF A PROPER
PARTY THE SUBORDINATE OFFICIAL AUTOMATICALLY ISSUES THE SUBPOENA TO THE
APPLICANT.  THERE IS HERE INVOLVED NO DELEGATION OF ANY ACT ENTAILING
THE EXERCISE OF DISCRETION, AS IN CUDAHY PACKING CO. V. HOLLAND, 315
U.S. 357.  THE AGENTS ISSUING THE SUBPOENAS PERFORM MINISTERIAL ACTS
ONLY.  WE CANNOT READ THE ACT TO MEAN THAT THESE BURDENSOME DETAILS
SHOULD BE PERFORMED BY BOARD MEMBERS IN FARAWAY WASHINGTON, D.C.  THE
COMMAND OF THE ACT IS TO ISSUE THE SUBPOENA "FORTHWITH" ON "APPLICATION
OF ANY PARTY."  IDENTIFICATION OF THE PARTY HARDLY RISES TO THE DIGNITY
OF THE DISCRETIONARY ACT WHICH IS CONFIDED SOLELY TO THE AGENCY HEADS. 
THIS HAS BEEN THE CONSISTENT VIEW OF THE LAW IN THE LOWER COURTS; (FN8)
AND WE THINK IT IS THE CORRECT ONE. 

3.  THE GENERAL COUNSEL OF THE BOARD AS A "PARTY."  - THE ACT DOES
NOT DEFINE THE TERM "PARTY"; BUT IT DOES MAKE CLEAR THAT THE ROLE OF
THE GENERAL COUNSEL IS A MAJOR ONE.  BY SEC. 3(D) OF THE ACT HE IS
GIVEN "FINAL AUTHORITY" RESPECTING THE INVESTIGATION OF CHARGES, THE
ISSUANCE OF COMPLAINTS, AND THE PROSECUTION OF COMPLAINTS BEFORE THE
BOARD.  (FN9)  THE GENERAL COUNSEL IS, INDEED, INDISPENSABLE TO THE
PROSECUTION OF THE CASE.  HE VINDICATES THE PUBLIC INTEREST, PERFORMING
FUNCTIONS PREVIOUSLY PERFORMED BY THE BOARD ITSELF.  (FN10)  SEE
NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350, 352.  PLAINLY THE
ISSUANCE OF SUBPOENAS MAY OFTEN BE ESSENTIAL TO THE PERFORMANCE OF THAT
ROLE.  TO RELEGATE HIM TO A LESSER ROLE THAN THAT OF A "PARTY" IS TO
OVERLOOK THE CRITICAL ROLE HE PERFORMS IN ENFORCEMENT OF THE ACT. 
AFFIRMED. 

FN1  SECTION 11(1) OF THE ACT PROVIDES: 

"FOR THE PURPOSE OF ALL HEARINGS AND INVESTIGATIONS, WHICH, IN THE
OPINION OF THE BOARD, ARE NECESSARY AND PROPER FOR THE EXERCISE OF THE
POWERS VESTED IN IT BY SECTION 9 AND SECTION 10: 

"(1)  THE BOARD, OR ITS DULY AUTHORIZED AGENTS OR AGENCIES, SHALL AT
ALL REASONABLE TIMES HAVE ACCESS TO, FOR THE PURPOSE OF EXAMINATION,
AND THE RIGHT TO COPY ANY EVIDENCE OF ANY PERSON BEING INVESTIGATED OR
PROCEEDED AGAINST THAT RELATES TO ANY MATTER UNDER INVESTIGATION OR IN
QUESTION.  THE BOARD, OR ANY MEMBER THEREOF, SHALL UPON APPLICATION OF
ANY PARTY TO SUCH PROCEEDINGS, FORTHWITH ISSUE TO SUCH PARTY SUBPENAS
REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES OR THE PRODUCTION
OF ANY EVIDENCE IN SUCH PROCEEDING OR INVESTIGATION REQUESTED IN SUCH
APPLICATION.  WITHIN FIVE DAYS AFTER THE SERVICE OF A SUBPENA ON ANY
PERSON REQUIRING THE PRODUCTION OF ANY EVIDENCE IN HIS POSSESSION OR
UNDER HIS CONTROL, SUCH PERSON MAY PETITION THE BOARD TO REVOKE, AND
THE BOARD SHALL REVOKE, SUCH SUBPENA IF IN ITS OPINION THE EVIDENCE
WHOSE PRODUCTION IS REQUIRED DOES NOT RELATE TO ANY MATTER UNDER
INVESTIGATION, OR ANY MATTER IN QUESTION IN SUCH PROCEEDINGS, OR IF IN
ITS OPINION SUCH SUBPENA DOES NOT DESCRIBE WITH SUFFICIENT
PARTICULARITY THE EVIDENCE WHOSE PRODUCTION IS REQUIRED.  ANY MEMBER OF
THE BOARD, OR ANY AGENT OR AGENCY DESIGNATED BY THE BOARD FOR SUCH
PURPOSES, MAY ADMINISTER OATHS AND AFFIRMATIONS, EXAMINE WITNESSES, AND
RECEIVE EVIDENCE.  SUCH ATTENDANCE OF WITNESSES AND THE PRODUCTION OF
SUCH EVIDENCE MAY BE REQUIRED FROM ANY PLACE IN THE UNITED STATES OR
ANY TERRITORY OR POSSESSION THEREOF, AT ANY DESIGNATED PLACE OF
HEARING." 

FN2  SEE SEC. 11(1), SUPRA, NOTE 1. 

FN3  SECTION 102.31(B) OF THE BOARD'S RULES AND REGULATIONS, 29 CFR,
1958 CUM. POCKET SUPP., PROVIDES: 

"ANY PERSON SUBPENAED, IF HE DOES NOT INTEND TO COMPLY WITH THE
SUBPENA, SHALL, WITHIN 5 DAYS AFTER THE DATE OF SERVICE OF THE SUBPENA
UPON HIM, PETITION IN WRITING TO REVOKE THE SUBPENA.  ALL PETITIONS TO
REVOKE SUBPENAS SHALL BE SERVED UPON THE PARTY AT WHOSE REQUEST THE
SUBPENA WAS ISSUED.   SUCH PETITION TO REVOKE, IF MADE PRIOR TO THE
HEARING, SHALL BE FILED WITH THE REGIONAL DIRECTOR AND THE REGIONAL
DIRECTOR SHALL REFER THE PETITION TO THE TRIAL EXAMINER OR THE BOARD
FOR RULING.  PETITIONS TO REVOKE SUBPENAS FILED DURING THE HEARING
SHALL BE FILED WITH THE TRIAL EXAMINER.  NOTICE OF THE FILING OF
PETITIONS TO REVOKE SHALL BE PROMPTLY GIVEN BY THE REGIONAL DIRECTOR OR
THE TRIAL EXAMINER, AS THE CASE MAY BE, TO THE PARTY AT WHOSE REQUEST
THE SUBPENA WAS ISSUED.  THE TRIAL EXAMINER OR THE BOARD, AS THE CASE
MAY BE, SHALL REVOKE THE SUBPENA IF IN ITS OPINION THE EVIDENCE WHOSE
PRODUCTION IS REQUIRED DOES NOT RELATE TO ANY MATTER UNDER
INVESTIGATION OR IN QUESTION IN THE PROCEEDINGS OR THE SUBPENA DOES NOT
DESCRIBE WITH SUFFICIENT PARTICULARITY THE EVIDENCE WHOSE PRODUCTION IS
REQUIRED.  THE TRIAL EXAMINER OR THE BOARD, AS THE CASE MAY BE, SHALL
MAKE A SIMPLE STATEMENT OF PROCEDURAL OR OTHER GROUNDS FOR THE RULING
ON THE PETITION TO REVOKE.  THE PETITION TO REVOKE, ANY ANSWER FILED
THERETO, AND ANY RULING THEREON, SHALL NOT BECOME PART OF THE OFFICIAL
RECORD EXCEPT UPON THE REQUEST OF THE PARTY AGGRIEVED BY THE RULING." 

FN4  SECTION 102.26 OF THE RULES PROVIDES: 

"ALL MOTIONS, RULINGS, AND ORDERS SHALL BECOME PART OF THE RECORD,
EXCEPT THAT RULINGS ON MOTIONS TO REVOKE SUBPENAS SHALL BECOME A PART
OF THE RECORD ONLY UPON THE REQUEST OF THE PARTY AGGRIEVED THEREBY, AS
PROVIDED IN SEC. 102.31.  UNLESS EXPRESSLY AUTHORIZED BY THE RULES AND
REGULATIONS, RULINGS BY THE REGIONAL DIRECTOR AND BY THE TRIAL EXAMINER
ON MOTIONS, BY THE TRIAL EXAMINER ON OBJECTIONS, AND ORDERS IN
CONNECTION THEREWITH, SHALL NOT BE APPEALED DIRECTLY TO THE BOARD
EXCEPT BY SPECIAL PERMISSION OF THE BOARD, BUT SHALL BE CONSIDERED BY
THE BOARD IN REVIEWING THE RECORD, IF EXCEPTION TO THE RULING OR ORDER
IS INCLUDED IN THE STATEMENT OF EXCEPTIONS FILED WITH THE BOARD,
PURSUANT TO SEC. 102.46.  REQUESTS TO THE BOARD FOR SPECIAL PERMISSION
TO APPEAL FROM SUCH RULINGS OF THE REGIONAL DIRECTOR OR THE TRIAL
EXAMINER SHALL BE FILED PROMPTLY, IN WRITING, AND SHALL BRIEFLY STATE
THE GROUNDS RELIED ON.  THE MOVING PARTY SHALL IMMEDIATELY SERVE A COPY
THEREOF ON EACH OTHER PARTY." 

FN5  SECTION 7(B) PROVIDES: 

"IN HEARINGS WHICH SECTION 4 OR 5 REQUIRES TO BE CONDUCTED PURSUANT
TO THIS SECTION: 

*         *         *         *         * 

"OFFICERS PRESIDING AT HEARINGS SHALL HAVE AUTHORITY, SUBJECT TO THE
PUBLISHED RULES OF THE AGENCY AND WITHIN ITS POWERS, TO (1) ADMINISTER
OATHS AND AFFIRMATIONS, (2) ISSUE SUBPENAS AUTHORIZED BY LAW, (3) RULE
UPON OFFERS OF PROOF AND RECEIVE RELEVANT EVIDENCE, (4) TAKE OR CAUSE
DEPOSITIONS TO BE TAKEN WHENEVER THE ENDS OF JUSTICE WOULD BE SERVED
THEREBY, (5) REGULATE THE COURSE OF THE HEARING, (6) HOLD CONFERENCES
FOR THE SETTLEMENT OF SIMPLIFICATION OF THE ISSUES BY CONSENT OF THE
PARTIES, (7) DISPOSE OF PROCEDURAL REQUESTS OR SIMILAR MATTERS, (8)
MAKE DECISIONS OR RECOMMEND DECISIONS IN CONFORMITY WITH SECTION 8, AND
(9) TAKE ANY OTHER ACTION AUTHORIZED BY AGENCY RULE CONSISTENT WITH
THIS ACT." 

IT SHOULD BE NOTED THAT REPRESENTATION PROCEEDINGS SUCH AS WERE
INVOLVED IN LABOR BOARD V. DUVAL JEWELRY CO., SUPRA, ARE EXCEPTED FROM
SOME OF THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT.  SEE SEC.
4. 

FN6  SEE SEC. 11(1), SUPRA, NOTE 1. 

FN7  SECTION 11(1) WAS REWRITTEN BY THE TAFT-HARTLEY ACT, 61 STAT.
136, 29 U.S.C. SEC.  151 ET SEQ.  SENATOR TAFT SAID CONCERNING IT, 93
CONG. REC. 6445: 

"SECTION 11 AUTHORIZES THE BOARD TO CONDUCT HEARINGS AND
INVESTIGATIONS AND TO SUBPENA WITNESSES.  THIS SECTION WAS NOT CHANGED
IN THE SENATE AMENDMENT AND WAS MODIFIED BY THE CONFEREES IN ONLY ONE
RESPECT.  THE BOARD IS REQUIRED UPON APPLICATION OF ANY PARTY TO ISSUE
A SUBPENA AS A MATTER OF COURSE.  A PROCEDURE IS ESTABLISHED WHEREBY
THE PERSON SUBPENAED MAY MOVE TO QUASH THE SUBPENA IF THE EVIDENCE
REQUESTED THEREBY DOES NOT RELATE TO ANY MATTER UNDER INVESTIGATION OR
DOES NOT DESCRIBE WITH SUFFICIENT PARTICULARITY THE EVIDENCE
REQUIRED." 

FN8  SEE LABOR BOARD V. JOHN S. BARNES CORP., 178 F.2D 156; EDWARDS
V. LABOR BOARD, 189 F.2D 970; JACKSON PACKING CO. V. LABOR BOARD, 204
F.2D 842; LABOR BOARD V. GUNACA, 135 F. SUPP. 790, AFF'D 230 F.2D 542. 

FN9  SECTION 3(D) READS AS FOLLOWS: 

"THERE SHALL BE A GENERAL COUNSEL OF THE BOARD WHO SHALL BE APPOINTED
BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FOR
A TERM OF FOUR YEARS.  THE GENERAL COUNSEL OF THE BOARD SHALL EXERCISE
GENERAL SUPERVISION OVER ALL ATTORNEYS EMPLOYED BY THE BOARD (OTHER
THAN TRIAL EXAMINERS AND LEGAL ASSISTANTS TO BOARD MEMBERS) AND OVER
THE OFFICERS AND EMPLOYEES IN THE REGIONAL OFFICES.  HE SHALL HAVE
FINAL AUTHORITY, ON BEHALF OF THE BOARD, IN RESPECT OF THE
INVESTIGATION OF CHARGES AND ISSUANCE OF COMPLAINTS UNDER SECTION 10,
AND IN RESPECT OF THE PROSECTUTION OF SUCH COMPLAINTS BEFORE THE BOARD,
AND SHALL HAVE SUCH OTHER DUTIES AS THE BOARD MAY PRESCRIBE OR AS MAY
BE PROVIDED BY LAW." 

FN10  SECTION 3(D) OF THE ACT EFFECTED AN IMPORTANT CHANGE OVER THE
EARLIER WAGNER ACT.  IT WAS DESIGNED TO SEPARATE THE PROSECUTING FROM
THE ADJUDICATING FUNCTION, TO PLACE THE FORMER IN THE GENERAL COUNSEL,
AND TO MAKE HIM AN INDEPENDENT OFFICIAL APPOINTED BY THE PRESIDENT AND
CONFIRMED BY THE SENATE FOR A TERM OF YEARS.  SEE H.R. REP. NO. 245,
80TH CONG., 1ST SESS. 26; H.R. REP. NO. 510, 80TH CONG., 1ST SESS. 37;
STATEMENT OF SENATOR TAFT, 93 CONG. REC. 6859. 
..END :







UNITED STATES V. DOW 357 U.S. 17 


NO. 102.  ARGUED MARCH 5, 1958 - DECIDED JUNE 9, 1958 - 238 F.2D 898,
REVERSED. 


IN CONDEMNATION PROCEEDINGS, THE GOVERNMENT OBTAINED A JUDGMENT OF
"IMMEDIATE POSSESSION" OF A PIPE-LINE RIGHT-OF-WAY ACROSS A TRACT OF
LAND, AND IT ENTERED INTO PHYSICAL POSSESSION IN 1943 AND LAID THE PIPE
LINE THROUGH THE TRACT.  IN 1945, THE OWNERS CONVEYED THE TRACT OF LAND
TO RESPONDENT BY A DEED WHICH WAS CONSTRUED BY THE TRIAL COURT AS
INTENDED TO CONVEY "ALL THEIR RIGHT, TITLE AND INTEREST" IN THE TRACT
"OR IN THE AWARD TO BE MADE FOR THE SAME."  IN 1946, THE GOVERNMENT,
ACTING UNDER THE DECLARATION OF TAKING ACT, FILED A DECLARATION
COVERING THE PIPE-LINE RIGHT-OF-WAY, DEPOSITED COMPENSATION IN COURT
AND OBTAINED A JUDGMENT ON THE DECLARATION OF TAKING.  HELD:  THE
"TAKING" OCCURRED IN 1943 WHEN THE GOVERNMENT ENTERED INTO PHYSICAL
POSSESSION OF THE LAND; THE ASSIGNMENT OF THE CLAIM FOR COMPENSATION
WAS INVALID UNDER THE ASSIGNMENT OF CLAIMS ACT; AND THE RESPONDENT WAS
NOT ENTITLED TO RECEIVE THE COMPENSATION AWARD.  PP. 18-27. 

(A)  IN VIEW OF THE TRIAL COURT'S EXPRESS FINDING THAT THE GRANTORS
INTENDED TO CONVEY THEIR RIGHT TO THE COMPENSATION AWARD, THE TRANSFER
OF THE CLAIM WAS A VOLUNTARY ASSIGNMENT, RATHER THAN AN ASSIGNMENT
TAKING EFFECT BY OPERATION OF LAW, AND, THEREFORE, IT WAS PROHIBITED BY
THE ASSIGNMENT OF CLAIMS ACT.  P. 20. 

(B)  SINCE COMPENSATION IS DUE AT THE TIME OF TAKING, THE OWNER AT
THAT TIME, NOT THE OWNER AT AN EARLIER OR LATER DATE, IS ENTITLED TO
RECEIVE THE COMPENSATION AWARD.  PP. 20-21. 

(C)  WHEN THE GOVERNMENT ENTERS INTO POSSESSION OF PROPERTY PRIOR TO
THE ACQUISITION OF TITLE, IT IS THE FORMER EVENT WHICH CONSTITUTES THE
ACT OF TAKING AND GIVES RISE TO THE CLAIM FOR COMPENSATION.  PP. 21
22. 

(D)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT, AFTER THE
CONVEYANCE, THE GOVERNMENT FILED A DECLARATION OF TAKING AND OBTAINED
TITLE UNDER THE DECLARATION OF TAKING ACT.  PP. 22-26. 

(E)  IN CASES LIKE THIS, THE TOTAL COMPENSATION SHOULD NOT BE DIVIDED
BETWEEN THE FIRST AND SECOND OWNERS OF THE PROPERTY, THE FORMER TAKING
THAT PORTION OF THE AWARD ATTRIBUTABLE TO THE GOVERNMENT'S USE OF THE
PROPERTY UNTIL THE PASSAGE OF TITLE, AND THE LATTER RECEIVING THE
BALANCE.  PP. 26-27. 

(F)  EQUITABLE CONSIDERATIONS DO NOT REQUIRE THAT RESPONDENT RECEIVE
PART OR ALL OF THE COMPENSATION AWARD IN THE CIRCUMSTANCES OF THIS
CASE.  P. 27. 

UNITED STATES V. DOW. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE ARISES OUT OF A CONDEMNATION PROCEEDING IN
WHICH THE UNITED STATES ACQUIRED AN EASEMENT PURSUANT TO ITS POWER OF
EMINENT DOMAIN.  THE PRINCIPAL QUESTION PRESENTED IS WHETHER THE CLAIM
TO "JUST COMPENSATION" VESTED IN THE OWNERS OF THE LAND AT THE TIME THE
UNITED STATES ENTERED INTO POSSESSION OF THE EASEMENT PURSUANT TO COURT
ORDER IN 1943 OR WHETHER SUCH CLAIM VESTED IN THE RESPONDENT, DOW, WHO
ACQUIRED THE LAND IN 1945, AT THE TIME THE UNITED STATES FILED A
DECLARATION OF TAKING IN 1946, UNDER THE DECLARATION OF TAKING ACT OF
FEBRUARY 26, 1931, 46 STAT. 1421, 40 U.S.C. SECS. 258A-258E. 

IN MARCH 1943 THE UNITED STATES INSTITUTED A CONDEMNATION PROCEEDING
IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS TO ACQUIRE A
RIGHT-OF-WAY FOR A PIPE LINE OVER CERTAIN LANDS IN HARRIS COUNTY,
TEXAS, OWNED BY THE ESTATE AND HEIRS OF JOHN F. GARRETT AND JAMES
BUTE.  AMONG THE LANDS CONDEMNED WAS PARCEL 1, A NARROW STRIP OF SOME
2.7 ACRES OUT OF A 617-ACRE TRACT, THE PROPERTY INVOLVED IN THE PRESENT
SUIT.  THE GOVERNMENT PROCEEDED UNDER VARIOUS STATUTES, INCLUDING THE
ACT OF AUGUST 1, 1888, 25 STAT. 357, 40 U.S.C. SEC.  257, AND TITLE II
OF THE SECOND WAR POWERS ACT OF MARCH 27, 1942, 56 STAT. 176, 177.  AS
REQUESTED IN THE PETITION, THE DISTRICT COURT ORDERED THE UNITED STATES
INTO THE "IMMEDIATE POSSESSION" OF THIS STRIP.  WITHIN THE NEXT TEN
DAYS THE UNITED STATES ENTERED INTO PHYSICAL POSSESSION AND BEGAN
LAYING THE PIPE LINE THROUGH THE TRACT.  THE LINE WAS COMPLETED IN 1943
AND HAS BEEN IN CONTINUOUS USE SINCE THAT TIME. 

IN NOVEMBER 1945 THE 617-ACRE TRACT WAS CONVEYED TO DOW BY A GENERAL
WARRANTY DEED WHICH SPECIFICALLY EXCEPTED THE PIPE-LINE RIGHT-OF-WAY AS
BEING SUBJECT TO THE CONDEMNATION PROCEEDINGS.  IN MAY 1946 THE
GOVERNMENT FILED A DECLARATION OF TAKING, UNDER THE DECLARATION OF
TAKING ACT, COVERING THIS PIPE-LINE STRIP.  ESTIMATED COMPENSATION WAS
DEPOSITED IN COURT AND JUDGMENT ON THE DECLARATION OF TAKING WAS
ENTERED.  A FEW MONTHS LATER THE GOVERNMENT AMENDED ITS PETITION TO
NAME ADDITIONAL PARTIES, INCLUDING DOW, WHO WERE ALLEGED TO BE
ASSERTING AN INTEREST IN THE LAND.  THE QUESTION OF COMPENSATION WAS
REFERRED TO COMMISSIONERS UNDER THE TEXAS PRACTICE, WHICH AT THAT TIME
WAS APPLICABLE TO FEDERAL CONDEMNATION PROCEEDINGS.  SEE UNITED STATES
V. MILLER, 317 U.S. 369, 379-380.  AFTER A HEARING, AT WHICH DOW
APPEARED, THE COMMISSIONERS, IN 1948, AWARDED $4,450 FOR IMPOSITION OF
THE PIPE-LINE EASEMENT. 

AFTER A LENGTHY UNEXPLAINED DELAY IN THE PROCEEDINGS, THE GOVERNMENT
IN MAY 1955 FILED A MOTION FOR SUMMARY JUDGMENT AGAINST DOW.  IN MARCH
1956 THE DISTRICT COURT GRANTED THIS MOTION AND DISMISSED DOW AS A
PARTY.  THE DISTRICT COURT FOUND AS A FACT THAT DOW'S GRANTORS HAD
INTENDED TO CONVEY TO HIM "ALL THEIR RIGHT, TITLE AND INTEREST IN THE
SAID PARCEL NO. 1 OR IN THE AWARD TO BE MADE FOR THE SAME."  IT THEN
WENT ON TO RULE THAT UNDER THE ASSIGNMENT OF CLAIMS ACT, 31 U.S.C. SEC.
203, THIS WAS A PROHIBITED ASSIGNMENT OF A CLAIM AGAINST THE UNITED
STATES, AND THAT THE DEED WAS THEREFORE INEFFECTIVE TO CONVEY TO DOW
THE COMPENSATION AWARD.  THE COURT OF APPEALS REVERSED, HOLDING THAT NO
ASSIGNMENT WAS INVOLVED BECAUSE NO CLAIM TO COMPENSATION AGAINST THE
UNITED STATES "AROSE AND VESTED" UNTIL THE FILING OF THE DECLARATION OF
TAKING IN 1946, AND THAT, BECAUSE DOW BY THAT TIME HAD BECOME OWNER OF
THE LAND, HE WAS ENTITLED TO THE AWARD.  238 F.2D 898.  BECAUSE THE
QUESTION PRESENTED BEARS IMPORTANTLY ON RIGHTS RESULTING FROM FEDERAL
CONDEMNATION PROCEEDINGS, WE GRANTED THE GOVERNMENT'S PETITION FOR
CERTIORARI.  353 U.S. 972. 

IT IS WELL ESTABLISHED, AS THE COURT OF APPEALS RECOGNIZED, THAT THE
ASSIGNMENT OF CLAIMS ACT PROHIBITS THE VOLUNTARY ASSIGNMENT OF A
COMPENSATION CLAIM AGAINST THE GOVERNMENT FOR THE TAKING OF PROPERTY. 
UNITED STATES V. SHANNON, 342 U.S. 288.  IN VIEW OF THE EXPRESS FINDING
OF THE DISTRICT COURT THAT DOW'S GRANTORS INTENDED TO CONVEY TO HIM
THEIR RIGHT TO THE CONDEMNATION AWARD, WE THINK THAT THE TRANSFER OF
THE CLAIM IN THIS CASE MUST BE CONSIDERED TO HAVE BEEN SUCH A VOLUNTARY
ASSIGNMENT, RATHER THAN, AS DOW ARGUES, AN ASSIGNMENT TAKING EFFECT BY
OPERATION OF LAW, AND THUS NOT WITHIN THE ACT'S PROHIBITION.  CF.
UNITED STATES V. AETNA CASUALTY & SURETY CO., 338 U.S. 366, 373-376;
SEE 23 TRACTS OF LAND V. UNITED STATES, 177 F.2D 967, 970.  WE WOULD
NOT BE JUSTIFIED IN RELAXING THE RIGOR OF THE ACT, ESPECIALLY IN VIEW
OF THE FACT THAT UNDER ITS VERY TERMS THE WAY WAS LEFT OPEN FOR THE
PARTIES TO ACCOMPLISH A TRANSFER OF THE AWARD BY VALID MEANS.*
ACCORDINGLY, DOW CAN PREVAIL ONLY IF THE "TAKING" OCCURRED WHILE HE WAS
THE OWNER.  FOR IT IS UNDISPUTED THAT "SINCE COMPENSATION IS DUE AT THE
TIME OF TAKING, THE OWNER AT THAT TIME, NOT THE OWNER AT AN EARLIER OR
LATER DATE, RECEIVES THE PAYMENT."  DANFORTH V. UNITED STATES, 308 U.S.
271, 284; CF. UNITED STATES V. DICKINSON, 331 U.S. 745.  WE HOLD,
CONTRARY TO THE COURT OF APPEALS, THAT THE "TAKING" DID NOT OCCUR IN
1946 WHEN THE GOVERNMENT FILED ITS DECLARATION OF TAKING, BUT RATHER
WHEN THE UNITED STATES ENTERED INTO POSSESSION OF THE LAND IN 1943.  IT
FOLLOWS THAT THE LANDOWNERS IN 1943 WERE ENTITLED TO RECEIVE THE
COMPENSATION AWARD AND THAT DOW IS NOT ENTITLED TO RECOVER IN THIS
ACTION. 

*THE ASSIGNMENT OF CLAIMS ACT PROVIDES THAT ASSIGNMENTS OF CLAIMS
WHICH IT WOULD OTHERWISE NULLIFY ARE NEVERTHELESS VALID IF "THEY ARE
FREELY MADE AND EXECUTED IN THE PRESENCE OF AT LEAST TWO ATTESTING
WITNESSES, AFTER THE ALLOWANCE OF SUCH A CLAIM, THE ASCERTAINMENT OF
THE AMOUNT DUE, AND THE ISSUING OF A WARRANT FOR THE PAYMENT THEREOF
...  ." 

BROADLY SPEAKING, THE UNITED STATES MAY TAKE PROPERTY PURSUANT TO ITS
POWER OF EMINENT DOMAIN IN ONE OF TWO WAYS:  IT CAN ENTER INTO PHYSICAL
POSSESSION OF PROPERTY WITHOUT AUTHORITY OF A COURT ORDER; OR IT CAN
INSTITUTE CONDEMNATION PROCEEDINGS UNDER VARIOUS ACTS OF CONGRESS
PROVIDING AUTHORITY FOR SUCH TAKINGS.  UNDER THE FIRST METHOD -
PHYSICAL SEIZURE - NO CONDEMNATION PROCEEDINGS ARE INSTITUTED, AND THE
PROPERTY OWNER IS PROVIDED A REMEDY UNDER THE TUCKER ACT, 28 U.S.C.
SECS. 1346(A)(2) AND 1491, TO RECOVER JUST COMPENSATION.  SEE HURLEY V.
KINCAID, 285 U.S. 95, 104.  UNDER THE SECOND PROCEDURE THE GOVERNMENT
MAY EITHER EMPLOY STATUTES WHICH REQUIRE IT TO PAY OVER THE JUDICIALLY
DETERMINED COMPENSATION BEFORE IT CAN ENTER UPON THE LAND, ACT OF
AUGUST 1, 1888, 25 STAT. 357, 40 U.S. SEC. 257; ACT OF AUGUST 18, 1890,
26 STAT. 316, 50 U.S.C. SEC. 171, OR PROCEED UNDER OTHER STATUTES WHICH
ENABLE IT TO TAKE IMMEDIATE POSSESSION UPON ORDER OF COURT BEFORE THE
AMOUNT OF JUST COMPENSATION HAS BEEN ASCERTAINED.  ACT OF JULY 18,
1918, 40 STAT. 904, 911, 33 U.S.C. SEC. 594; TITLE II OF THE SECOND WAR
POWERS ACT OF MARCH 27, 1942, 56 STAT. 176, 177 (EMPLOYED BY THE
GOVERNMENT IN THE PRESENT CASE). 

ALTHOUGH IN BOTH CLASSES OF "TAKING" CASES - CONDEMNATION AND
PHYSICAL SEIZURE - TITLE TO THE PROPERTY PASSES TO THE GOVERNMENT ONLY
WHEN THE OWNER RECEIVES COMPENSATION, SEE ALBERT HANSON LUMBER CO. V.
UNITED STATES, 261 U.S. 581, 587, OR WHEN THE COMPENSATION IS DEPOSITED
INTO COURT PURSUANT TO THE TAKING ACT, SEE INFRA, THE PASSAGE OF TITLE
DOES NOT NECESSARILY DETERMINE THE DATE OF "TAKING."  THE USUAL RULE IS
THAT IF THE UNITED STATES HAS ENTERED INTO POSSESSION OF THE PROPERTY
PRIOR TO THE ACQUISITION OF TITLE, IT IS THE FORMER EVENT WHICH
CONSTITUTES THE ACT OF TAKING.  IT IS THAT EVENT WHICH GIVES RISE TO
THE CLAIM FOR COMPENSATION AND FIXES THE DATE AS OF WHICH THE LAND IS
TO BE VALUED AND THE GOVERNMENT'S OBLIGATION TO PAY INTEREST ACCRUES. 
SEE UNITED STATES V. LYNAH, 188 U.S. 445, 470-471; UNITED STATES V.
ROGERS, 255 U.S. 163; SEABOARD AIR LINE R. CO. V. UNITED STATES, 261
U.S. 299.  THE OWNER AT THE TIME THE GOVERNMENT TAKES POSSESSION
"RATHER THAN THE OWNER AT AN EARLIER OR LATER DATE, IS THE ONE WHO HAS
THE CLAIM AND IS TO RECEIVE PAYMENT."   23 TRACTS OF LAND V. UNITED
STATES, SUPRA, AT 970. 

HAD THE GOVERNMENT NOT SUBSEQUENTLY FILED A DECLARATION OF TAKING IN
THIS CASE, THERE IS NO REASON TO BELIEVE THAT THESE ORDINARY RULES
WOULD NOT HAVE BEEN APPLICABLE; THE OWNERS OF THE PARCEL WHEN THE
GOVERNMENT ENTERED INTO POSSESSION IN 1943 WOULD THEN HAVE BEEN
ENTITLED TO COMPENSATION.  NO SUGGESTION TO THE CONTRARY HAS BEEN MADE
BY DOW.  INSTEAD, DOW CONTENDS THAT ALTHOUGH THERE WAS AN ENTRY INTO
POSSESSION IN 1943 WHICH WAS AN APPROPRIATION OF THE PROPERTY
SUFFICIENT TO AMOUNT TO A "TAKING," THE SUBSEQUENT FILING OF A
DECLARATION OF TAKING VITIATED THE EFFECT OF THE EARLIER ENTRY, AND
RENDERED THE FILING DATE THE TIME OF THE TAKING.  WE THINK THAT THIS
CONTENTION IS FOUNDED ON A MISTAKEN VIEW OF THE DECLARATION OF TAKING
ACT AND MUST BE REJECTED. 

FILING SAID DECLARATION OF TAKING PRIOR TO JUDGMENT IN A CONDEMNATION
PROCEEDING AND OF THE DEPOSIT IN THE COURT  ...  OF THE ESTIMATED
COMPENSATION  ...  TITLE  ...  SHALL VEST IN THE UNITED STATES  ... AND
SAID LANDS SHALL BE DEEMED TO BE CONDEMNED AND TAKEN FOR THE USE OF THE
UNITED STATES, AND THE RIGHT TO JUST COMPENSATION  ...  SHALL VEST IN
THE PERSONS ENTITLED THERETO  ...  ."  ALTHOUGH IT HAS BEEN RECOGNIZED
THAT THE "EXACT EFFECT OF THESE PROVISIONS IS NOT ENTIRELY CLEAR,"
CATLIN V. UNITED STATES, 324 U.S. 229, 240, PAST CASES IN THIS COURT
HAVE ESTABLISHED CERTAIN UNCHALLENGED PRINCIPLES PERTINENT TO THE
PRESENT CONTROVERSY.  THE TAKING ACT DOES NOT BESTOW INDEPENDENT
AUTHORITY TO CONDEMN LANDS FOR PUBLIC USE.  ON THE CONTRARY, IT
PROVIDES A PROCEEDING "ANCILLARY OR INCIDENTAL TO SUITS BROUGHT UNDER
OTHER STATUTES," CATLIN V. UNITED STATES, SUPRA, AT 240.  SUCH A
PROCEEDING CAN BE INSTITUTED EITHER AT THE COMMENCEMENT OF THE
CONDEMNATION SUIT UNDER THE "OTHER STATUTES" OR, AS IN THIS CASE, AFTER
SUCH A SUIT HAS BEEN COMMENCED AND EITHER BEFORE OR AFTER THE
GOVERNMENT HAS TAKEN POSSESSION.  IN BOTH SITUATIONS THE TAKING ACT
ENABLES THE UNITED STATES TO ACQUIRE TITLE SIMPLY BY DEPOSITING FUNDS
"FOR OR ON ACCOUNT" OF THE JUST COMPENSATION TO BE AWARDED THE OWNERS,
RATHER THAN BY MAKING PAYMENT PURSUANT TO A COURT ORDER.  IN THOSE
CASES WHERE THE GOVERNMENT HAS NOT YET ENTERED INTO POSSESSION, THE
FILING OF THE DECLARATION ENABLES IT TO ENTER IMMEDIATELY AND RELIEVES
IT OF THE BURDEN OF INTEREST FROM THE TIME OF FILING TO THE DATE OF
JUDGMENT IN THE EMINENT DOMAIN PROCEEDINGS.  SEE UNITED STATES V.
MILLER, SUPRA, AT 380-381. 

THE SCHEME OF THE TAKING ACT MAKES IT PLAIN THAT WHEN THE GOVERNMENT
FILES A DECLARATION BEFORE IT HAS ENTERED INTO POSSESSION OF THE
PROPERTY THE FILING CONSTITUTES THE "TAKING."  BUT NEITHER THE LANGUAGE
NOR THE HISTORY OF THE ACT PROVIDES A RELIABLE INDICATION AS TO THE
INTENTION OF CONGRESS IN CASES, SUCH AS THE ONE BEFORE US, WHERE A
DECLARATION IS FILED AFTER THE GOVERNMENT HAS TAKEN POSSESSION. 
NEVERTHELESS, A NUMBER OF CONSIDERATIONS HAVE LED US TO THE VIEW THAT
IN SUCH CASES THE DATE OF "TAKING" IS THE DATE ON WHICH THE GOVERNMENT
ENTERED AND APPROPRIATED THE PROPERTY TO PUBLIC USE. 

IN THE FIRST PLACE, TO ADOPT THE SOLUTION URGED BY DOW WOULD BE TO
UNDERMINE POLICIES DETERMINING THE OTHER INCIDENTS OF THE GOVERNMENT'S
OBLIGATION TO PROVIDE JUST COMPENSATION.  AS ALREADY NOTED, IN CASES
WHERE THERE HAS BEEN AN ENTRY INTO POSSESSION BEFORE THE FILING OF A
DECLARATION OF TAKING, SUCH ENTRY HAS BEEN CONSIDERED THE TIME OF
"TAKING" FOR PURPOSES OF VALUING THE PROPERTY AND FIXING THE DATE ON
WHICH THE GOVERNMENT'S OBLIGATION TO PAY INTEREST BEGINS TO RUN.  TO
RULE THAT THE DATE OF "TAKING" IS THE TIME OF FILING WOULD CONFRONT US
WITH A HOBSON'S CHOICE.  ON THE ONE HAND, IT WOULD CERTAINLY BE BIZARRE
TO HOLD THAT THERE WERE TWO DIFFERENT "TAKINGS" OF THE SAME PROPERTY,
WITH SOME INCIDENTS OF THE TAKING DETERMINED AS OF ONE DATE AND SOME AS
OF THE OTHER.  ON THE OTHER HAND, TO RULE THAT FOR ALL PURPOSES THE
TIME OF TAKING IS THE TIME OF FILING WOULD OPEN THE DOOR TO ANOMALOUS
RESULTS.  FOR EXAMPLE, IF THE VALUE OF THE PROPERTY CHANGED BETWEEN THE
TIME THE GOVERNMENT TOOK POSSESSION AND THE TIME OF FILING, PAYMENT AS
OF THE LATTER DATE WOULD NOT BE AN ACCURATE REFLECTION OF THE VALUE OF
WHAT THE PROPERTY OWNER GAVE UP AND THE GOVERNMENT ACQUIRED.  IN THE
GRAPHIC LANGUAGE OF CHIEF JUSTICE SHAW:  "IF A PIE-POWDER COURT COULD
BE CALLED ON THE INSTANT AND ON THE SPOT, THE TRUE RULE OF JUSTICE FOR
THE PUBLIC WOULD BE, TO PAY THE COMPENSATION WITH ONE HAND, WHILST THEY
APPLY THE AXE WITH THE OTHER."  PARKS V. BOSTON, 15 PICK.  (MASS.) 
198, 208.  SEE ALSO ANDERSON V. UNITED STATES, 179 F.2D 281. 
SIMILARLY, BECAUSE INTEREST FOR DELAY IN PAYMENT WOULD NOT BEGIN TO
ACCRUE UNTIL PAYMENT OF COMPENSATION IS DUE, THE GOVERNMENT WOULD BE
ABSOLVED OF INTEREST UNTIL IT CHOSE TO FILE A DECLARATION OF TAKING,
EVEN THOUGH IT HAD ALREADY BEEN IN POSSESSION, TO THE EXCLUSION OF THE
PROPERTY OWNER, FOR SOME TIME.  CF. SEABOARD AIR LINE R. CO. V. UNITED
STATES, SUPRA.    THERE IS ANOTHER REASON WHY WE CANNOT REGARD THE TIME
OF FILING AS THE TIME OF THE "TAKING" IN CASES WHERE THE GOVERNMENT HAS
ALREADY ENTERED INTO POSSESSION.  BECAUSE OF THE UNCERTAINTY WHEN, IF
EVER, A DECLARATION WOULD BE FILED AFTER THE GOVERNMENT'S ENTRY,
MANIPULATONS MIGHT BE ENCOURAGED WHICH COULD OPERATE TO THE
DISADVANTAGE OF EITHER THE LANDOWNER OR THE UNITED STATES.  THE
GOVERNMENT TELLS US THAT THE DECLARATION OF TAKING PROCEDURE MAY BE
INVOKED "SOLELY IN THE DISCRETION OF THE ADMINISTRATIVE OFFICER."  IT
WOULD THUS LIE WITHIN THE POWER OF SUCH AN OFFICER TO REDUCE THE "JUST"
COMPENSATION DUE THE PROPERTY OWNER BY STAYING HIS HAND UNTIL A MARKET
SITUATION FAVORABLE TO THE GOVERNMENT HAD DEVELOPED.  CONVERSELY,
LANDOWNERS MIGHT BE IN A POSITION TO INCREASE UNDULY THE GOVERNMENT'S
LIABILITY.  FOR INSTANCE, IF A SINGLE TRACT OF LAND WERE WORTH MORE
THAN THE SUM OF ITS COMPONENT PARCELS, CF. UNITED STATES V. RUNNER, 174
F.2D 651, OWNERS OF ADJACENT CONDEMNED PROPERTIES COULD CONSOLIDATE
THEIR HOLDINGS AFTER THE GOVERNMENT'S ENTRY SOLELY FOR THE PURPOSE OF
OBTAINING A LARGER AWARD. 

WE CANNOT ATTRIBUTE TO CONGRESS THE INTENTION TO PROMULGATE A RULE
WHICH WOULD OPEN THE DOOR TO SUCH OBVIOUS INCONGRUITIES AND UNDESIRABLE
POSSIBILITIES. 

WE ARE NOT PERSUADED BY ANY OF THE COUNTERVAILING CONSIDERATIONS PUT
FORWARD BY DOW.  IT IS CLAIMED THAT MUCH NEEDED CERTAINTY WOULD ENSUE
IN CONDEMNATION MATTERS WERE THE COURT TO HOLD THAT THE GOVERNMENT'S
FILING UNDER THE TAKING ACT INVARIABLY ESTABLISHED THE DATE OF THE
"TAKING" OF THIS PROPERTY.  BUT CERTAINTY IS NOT LACKING UNDER THE RULE
ADVOCATED BY THE GOVERNMENT, WHICH FIXES THE "TAKING" AT THE TIME OF
THE ENTRY INTO PHYSICAL POSSESSION - A FACT READILY ASCERTAINABLE
WHETHER OR NOT THE GOVERNMENT MAKES USE OF CONDEMNATION PROCEEDINGS,
AND WHETHER OR NOT IT EVER FILES A DECLARATION OF TAKING. 

IT IS ALSO ARGUED THAT A PROPERTY OWNER MIGHT BE PREJUDICED UNDER THE
GOVERNMENT'S VIEW BECAUSE THE PROJECT COULD BE ABANDONED AND THE
CONDEMNATION PROCEEDINGS DISCONTINUED BEFORE TITLE PASSED TO THE
GOVERNMENT.  BUT THE POSSIBILITY OF SUCH AN ABANDONMENT EXISTS WHENEVER
THE GOVERNMENT ENTERS INTO POSSESSION OF PROPERTY WITHOUT FILING A
DECLARATION OF TAKING AND WITHOUT OTHERWISE PROVIDING COMPENSATION FOR
ACQUISITION OF THE TITLE.  IN ANY EVENT, SUCH AN ABANDONMENT DOES NOT
PREJUDICE THE PROPERTY OWNER.  IT MERELY RESULTS IN AN ALTERATION IN
THE PROPERTY INTEREST TAKEN - FROM FULL OWNERSHIP TO ONE OF TEMPORARY
USE AND OCCUPATION.  O'CONNOR V. UNITED STATES, 155 F.2D 425; MOODY V.
WICKARD, 78 U.S. APP. D.C. 80, 136 F.2D 801; CF. CHEROKEE NATION V.
SOUTHERN KANSAS R. CO., 135 U.S. 641, 660.  IN SUCH CASES COMPENSATION
WOULD BE MEASURED BY THE PRINCIPLES NORMALLY GOVERNING THE TAKING OF A
RIGHT TO USE PROPERTY TEMPORARILY.  SEE KIMBALL LAUNDRY CO. V. UNITED
STATES, 338 U.S. 1; UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372;
UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373. 

NOR CAN WE ACCEPT THE SUGGESTION THAT IN CASES LIKE THE PRESENT ONE
THE TOTAL COMPENSATION SHOULD BE DIVIDED BETWEEN THE FIRST AND SECOND
OWNERS OF THE PROPERTY, THE FORMER TAKING THAT PORTION OF THE AWARD
ATTRIBUTABLE TO THE GOVERNMENT'S USE OF THE PROPERTY UNTIL THE PASSAGE
OF TITLE, AND THE LATTER RECEIVING THE BALANCE.  CF. UNITED STATES V.
40,379 SQUARE FEET OF LAND, 58 F. SUPP. 246.  TO REQUIRE THE GOVERNMENT
TO DEAL WITH MORE THAN ONE PARTY, PARTICULARLY WHEN DIVISION OF THE
CONDEMNATION AWARD WOULD ENTAIL A COMPLEX APPORTIONMENT, MIGHT SEVERLY
IMPEDE THE ORDERLY PROGRESS OF CONDEMNATION PROCEEDINGS AND WOULD
CONFLICT WITH THE POLICIES UNDERLYING THE ANTI-ASSIGNMENT ACT.   SEE
HOBBS V. MCLEAN, 117 U.S. 567, 576; UNITED STATES V. AETNA CASUALTY &
SURETY CO., SUPRA. 

DOW RELIES ON DANFORTH V. UNITED STATES, SUPRA, AND UNITED STATES V.
DICKINSON, SUPRA, BUT NEITHER CASE IS IN POINT ON THE ISSUE BEFORE US.
IN DANFORTH THE COURT REJECTED THE LANDOWNER'S CLAIM FOR INTEREST ON
THE GROUND, INTER ALIA, THAT THE CONSTRUCTION OF A SET-BACK LEVEE NEAR
HIS LAND DID NOT AMOUNT TO A "TAKING" BECAUSE THE GOVERNMENT BY SUCH
ACTION HAD NOT YET APPROPRIATED THE PROPERTY TO ITS USE.  THE EXPRESSLY
LIMITED HOLDING IN DICKINSON WAS THAT THE STATUTE OF LIMITATIONS DID
NOT BAR AN ACTION UNDER THE TUCKER ACT FOR A TAKING BY FLOODING WHEN IT
WAS UNCERTAIN AT WHAT STAGE IN THE FLOODING OPERATION THE LAND HAD
BECOME APPROPRIATED TO PUBLIC USE.  IN THE PRESENT CASE THERE IS NO
DISPUTE OVER THE FACT THAT THE UNITED STATES APPROPRIATED PARCEL 1 ON
THE DATE THAT IT ENTERED INTO PHYSICAL POSSESSION UNDER ORDER OF THE
DISTRICT COURT. 

FINALLY, WE SEE NO MERIT IN THE SUGGESTION THAT IT IS INEQUITABLE TO
DENY DOW RECOVERY IN THIS ACTION.  DOW TOOK HIS DEED WITH FULL NOTICE
OF THE CONDEMNATION PROCEEDING BROUGHT BY THE UNITED STATES.  THERE
WERE READILY AVAILABLE CONTRACTUAL MEANS BY WHICH HE COULD HAVE
PROTECTED HIMSELF VIS-A-VIS HIS GRANTORS AGAINST THE CONTINGENCY THAT
HIS CLAIM AGAINST THE UNITED STATES WOULD BE SUBSEQUENTLY INVALIDATED
BY THE ANTI-ASSIGNMENT ACT.  AND WHATEVER MAY BE THE EQUITIES BETWEEN
THE FORMER OWNERS AND DOW, OR BETWEEN THE GOVERNMENT AND THE FORMER
OWNERS, WHOSE CLAIM TO COMPENSATION DOW ASSERTS MAY BE BARRED BY THE
STATUTE OF LIMITATIONS, SUCH EQUITIES CANNOT SERVE TO PREVENT THE
APPLICATION OF THE CORRECT RULE OF LAW AS BETWEEN THE GOVERNMENT AND
DOW IN THIS CASE.  CF. MCKENZIE V. IRVING TRUST CO., 323 U.S. 365,
369.  REVERSED. 
..END :









THE COLONY, INC. V. COMMISSIONER OF INTERNAL REVENUE 357 U.S. 28 


NO. 306.  ARGUED APRIL 3, 1958 - DECIDED JUNE 9, 1958 - 244 F.2D 75,
REVERSED. 


UNDER THE INTERNAL REVENUE CODE OF 1939, THE COMMISSIONER ASSESSED
DEFICIENCIES IN A TAXPAYER'S INCOME TAXES WITHIN AN EXTENDED PERIOD
PROVIDED IN WAIVERS EXECUTED BY THE TAXPAYER MORE THAN THREE BUT LESS
THAN FIVE YEARS AFTER THE RETURNS WERE FILED.  THERE WAS NO CLAIM THAT
THE RETURNS WERE FRADULENT OR THAT THE TAXPAYER HAD INACCURATELY
REPORTED ITS GROSS RECEIPTS.  INSTEAD, THE DEFICIENCIES WERE BASED UPON
THE COMMISSIONER'S DETERMINATION THAT THE TAXPAYER HAD UNDERSTATED THE
GROSS PROFITS ON SALES OF CERTAIN LOTS OF LAND FOR RESIDENTIAL PURPOSES
AS A RESULT OF HAVING ERRONEOUSLY INCLUDED IN THEIR COST CERTAIN
UNALLOWABLE ITEMS OF DEVELOPMENT EXPENSE.  THIS RESULTED IN AN
UNDERSTATEMENT OF THE TAXPAYER'S GROSS INCOME BY MORE THAN 25% OF THE
AMOUNT REPORTED.  HELD: THE FIVE-YEAR PERIOD OF LIMITATIONS PRESCRIBED
IN SEC. 275(C) FOR CASES IN WHICH THE TAXPAYER "OMITS FROM GROSS INCOME
AN AMOUNT PROPERLY INCLUDIBLE THEREIN" WHICH EXCEEDS 25% OF THE GROSS
INCOME REPORTED IS NOT APPLICABLE, AND THE ASSESSMENT WAS BARRED BY THE
THREE-YEAR LIMITATION OF SEC. 275(A).  PP. 29-38. 

(A)  IN SEC. 275(C), THE WORDS "OMITS FROM GROSS INCOME AN AMOUNT
PROPERLY INCLUDIBLE THEREIN" REFERS TO SITUATIONS IN WHICH SPECIFIC
ITEMS OF INCOME ARE LEFT OUT OF THE COMPUTATION OF GROSS INCOME, AND
THEY DO NOT APPLY TO ERRORS IN THE COMPUTATION OF GROSS INCOME
RESULTING FROM A MISTAKEN OVERSTATEMENT OF THE COST OF PROPERTY SOLD. 
PP. 32-33. 

(B)  THE LEGISLATIVE HISTORY OF SEC. 275(C) SUPPORTS THIS
CONCLUSION.  PP. 33-35. 

(C)  IN ENACTING SEC. 275(C), CONGRESS WAS NOT CONCERNED WITH THE
MERE SIZE OF AN ERROR IN REPORTING GROSS INCOME BUT WITH A RESTRICTED
TYPE OF SITUATION WHERE THE TAXPAYER'S FAILURE TO REPORT SOME ITEMS OF
TAXABLE INCOME PUT THE COMMISSIONER AT A SPECIAL DISADVANTAGE IN
DETECTING ERRORS.  PP. 36-38. 

THE COLONY, INC., V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION IN THIS CASE IS WHETHER ASSESSMENTS BY THE
COMMISSIONER OF TWO ASSERTED TAX DEFICIENCIES WERE BARRED BY THE THREE
YEAR STATUTE OF LIMITATIONS PROVIDED IN THE INTERNAL REVENUE CODE OF
1939. 

UNDER THE 1939 CODE THE GENERAL STATUTE OF LIMITATIONS GOVERNING THE
ASSESSMENT OF FEDERAL INCOME TAX DEFICIENCIES IS FIXED AT THREE YEARS
FROM THE DATE ON WHICH THE TAXPAYER FILED HIS RETURN, SEC. 275(A), 53
STAT. 86, EXCEPT IN CASES INVOLVING A FRAUDULENT RETURN OR FAILURE TO
FILE A RETURN, WHERE A TAX MAY BE ASSESSED AT ANY TIME.  SEC. 276(A),
53 STAT. 87.  A SPECIAL FIVE-YEAR PERIOD OF LIMITATIONS IS PROVIDED
WHEN A TAXPAYER, EVEN THOUGH ACTING IN GOOD FAITH, "OMITS FROM GROSS
INCOME AN AMOUNT PROPERLY INCLUDIBLE THEREIN WHICH IS IN EXCESS OF 25
PER CENTUM OF THE AMOUNT OF GROSS INCOME STATED IN THE RETURN  ...  ." 
SEC.  275(C), 53 STAT. 86.  IN EITHER CASE THE PERIOD OF LIMITATION MAY
BE EXTENDED BY A WRITTEN WAIVER EXECUTED BY THE TAXPAYER WITHIN THE
STATUTORY OR ANY EXTENDED PERIOD OF LIMITATION.  SEC. 276(B), 53 STAT.
87.  (FN1) 

THE COMMISSIONER ASSESSED DEFICIENCIES IN THE TAXPAYER'S INCOME TAXES
FOR EACH OF THE FISCAL YEARS ENDING OCTOBER 31, 1946, AND 1947, WITHIN
THE EXTENDED PERIOD PROVIDED IN WAIVERS WHICH WERE EXECUTED BY THE
TAXPAYER MORE THAN THREE BUT LESS THEN FIVE YEARS AFTER THE RETURNS
WERE FILED.  THERE WAS NO CLAIM THAT THE TAXPAYER HAD INACCURATELY
REPORTED ITS GROSS RECEIPTS.  INSTEAD, THE DEFICIENCIES WERE BASED UPON
THE COMMISSIONER'S DETERMINATION THAT THE TAXPAYER HAD UNDERSTATED THE
GROSS PROFITS ON THE SALES OF CERTAIN LOTS OF LAND FOR RESIDENTIAL
PURPOSES AS A RESULT OF HAVING OVERSTATED THE "BASIS" OF SUCH LOTS BY
ERRONEOUSLY INCLUDING IN THEIR COST CERTAIN UNALLOWABLE ITEMS OF
DEVELOPMENT EXPENSE.  THERE WAS NO CLAIM THAT THE RETURNS WERE
FRAUDULENT. 

THE TAX COURT SUSTAINED THE COMMISSIONER.  IT HELD THAT SUBSTANTIAL
PORTIONS OF THE DEVELOPMENT COSTS WERE PROPERLY DISALLOWED, AND THAT
THESE ERRORS BY THE TAXPAYER HAD RESULTED IN THE UNDERSTATEMENT OF THE
TAXPAYER'S TOTAL GROSS INCOME BY 77.2% AND 30.7%, RESPECTIVELY, OF THE
AMOUNTS REPORTED FOR THE TAXABLE YEARS 1946 AND 1947.  IN ADDITION, THE
TAX COURT HELD THAT IN THESE CIRCUMSTANCES THE FIVE-YEAR PERIOD OF
LIMITATION PROVIDED FOR IN SEC. 275(C) WAS APPLICABLE.  IT TOOK THE
VIEW THAT THE STATUTORY LANGUAGE, "OMITS FROM GROSS INCOME AN AMOUNT
PROPERLY INCLUDIBLE THEREIN," EMBRACED NOT MERELY THE OMISSION FROM A
RETURN OF AN ITEM OF INCOME RECEIVED BY OR ACCRUING TO A TAXPAYER, BUT
ALSO AN UNDERSTATEMENT OF GROSS INCOME RESULTING FROM A TAXPAYER'S
MISCALCULATION OF PROFITS THROUGH THE ERRONEOUS INCLUSION OF AN
EXCESSIVE ITEM OF COST.  26 T.C. 30.   ON THE TAXPAYER'S APPEAL TO THE
COURT OF APPEALS THE ONLY QUESTION RAISED WAS WHETHER THE THREE-YEAR OR
THE FIVE-YEAR STATUTE OF LIMITATIONS GOVERNED THE ASSESSMENT OF THESE
DEFICIENCIES.  ADHERING TO ITS EARLIER DECISION IN REIS V.
COMMISSIONER, 142 F.2D 900, THE COURT OF APPEALS AFFIRMED.  244 F.2D
75.  WE GRANTED CERTIORARI BECAUSE THIS DECISION CONFLICTED WITH
RULINGS IN OTHER COURTS OF APPEALS ON THE SAME ISSUE, (FN2) AND BECAUSE
THE QUESTION AS TO THE PROPER SCOPE OF SEC. 275(C), ALTHOUGH RESOLVED
FOR THE FUTURE BY SEC. 650(E)(1)(A) OF THE INTERNAL REVENUE CODE OF
1954, P. 37, INFRA, REMAINS ONE OF SUBSTANTIAL IMPORTANCE IN THE
ADMINISTRATION OF THE INCOME TAX LAWS FOR EARLIER TAXABLE YEARS.  355
U.S. 811. 

IN DETERMINING THE CORRECT INTERPRETATION OF SEC. 275(C) WE START
WITH THE CRITICAL STATUTORY LANGUAGE, "OMITS FROM GROSS INCOME AN
AMOUNT PROPERLY INCLUDIBLE THEREIN."  THE COMMISSIONER STATES THAT THE
DRAFTSMAN'S USE OF THE WORD "AMOUNT" (INSTEAD OF, FOR EXAMPLE, "ITEM")
SUGGESTS A CONCENTRATION ON THE QUANTITATIVE ASPECT OF THE ERROR - THAT
IS, WHETHER OR NOT GROSS INCOME WAS UNDERSTATED BY AS MUCH AS 25%. THIS
VIEW IS SOMEWHAT REINFORCED IF, IN READING THE ABOVE-QUOTED PHRASE, ONE
TOUCHES LIGHTLY ON THE WORD "OMITS" AND BEARS DOWN HARD ON THE WORDS
"GROSS INCOME," FOR WHERE A COST ITEM IS OVERSTATED, AS IN THE CASE
BEFORE US, GROSS INCOME IS AFFECTED TO THE SAME DEGREE AS WHEN A GROSS
RECEIPT ITEM OF THE SAME AMOUNT IS COMPLETELY OMITTED FROM A TAX
RETURN. 

ON THE OTHER HAND, THE TAXPAYER CONTENDS THAT THE COMMISSIONER'S
READING FAILS TO TAKE FULL ACCOUNT OF THE WORD "OMITS," WHICH CONGRESS
SELECTED WHEN IT COULD HAVE CHOSEN ANOTHER VERB SUCH AS "REDUCES" OR
"UNDERSTATES," EITHER OF WHICH WOULD HAVE POINTED SIGNIFICANTLY IN THE
COMMISSIONER'S DIRECTION.  THE TAXPAYER ALSO POINTS OUT THAT NORMALLY
"STATUTORY WORDS ARE PRESUMED TO BE USED IN THEIR ORDINARY AND USUAL
SENSE, AND WITH THE MEANING COMMONLY ATTRIBUTABLE TO THEM."  DEGANAY V.
LEDERER, 250 U.S. 376, 381.  "OMIT" IS DEFINED IN WEBSTER'S NEW
INTERNATIONAL DICTIONARY (2D ED. 1939) AS "TO LEAVE OUT OR UNMENTIONED;
NOT TO INSERT, INCLUDE, OR NAME," AND THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT HAS ELSEWHERE SIMILARLY DEFINED THE WORD.  EWALD V.
COMMISSIONER, 141 F.2D 750, 753.  RELYING ON THIS DEFINITION, THE
TAXPAYER SAYS THAT THE STATUTE IS LIMITED TO SITUATIONS IN WHICH
SPECIFIC RECEIPTS OR ACCRUALS OF INCOME ITEMS ARE LEFT OUT OF THE
COMPUTATION OF GROSS INCOME.  FOR REASONS STATED BELOW WE AGREE WITH
THE TAXPAYER'S POSITION. 

ALTHOUGH WE ARE INCLINED TO THINK THAT THE STATUTE ON ITS FACE LENDS
ITSELF MORE PLAUSIBLY TO THE TAXPAYER'S INTERPRETATION, IT CANNOT BE
SAID THAT THE LANGUAGE IS UNAMBIGUOUS.  IN THESE CIRCUMSTANCES WE TURN
TO THE LEGISLATIVE HISTORY OF SEC. 275(C).  WE FIND IN THAT HISTORY
PERSUASIVE EVIDENCE THAT CONGRESS WAS ADDRESSING ITSELF TO THE SPECIFIC
SITUATION WHERE A TAXPAYER ACTUALLY OMITTED SOME INCOME RECEIPT OR
ACCRUAL IN HIS COMPUTATION OF GROSS INCOME, AND NOT MORE GENERALLY TO
ERRORS IN THAT COMPUTATION ARISING FROM OTHER CAUSES. 

680.  AS INTRODUCED IN THE HOUSE THE BILL SIMPLY ADDED THE GROSS-INCOME
PROVISION TO SEC. 276 OF THE REVENUE ACT OF 1932, 47 STAT. 169,
RELATING TO FRAUDULENT RETURNS AND CASES WHERE NO RETURN HAD BEEN
FILED, AND CARRIED WITH IT NO PERIOD OF LIMITATIONS.  THE INTENDED
COVERAGE OF THE PROPOSED PROVISION WAS STATED IN A REPORT OF A HOUSE
WAYS AND MEANS SUBCOMMITTEE AS FOLLOWS: 

"SECTION 276 PROVIDES FOR THE ASSESSMENT OF THE TAX WITHOUT REGARD TO
THE STATUTE OF LIMITATIONS IN CASE OF A FAILURE TO FILE A RETURN OR IN
CASE OF A FALSE OR FRADULENT RETURN WITH INTENT TO EVADE TAX. 

"YOUR SUBCOMMITTEE IS OF THE OPINION THAT THE LIMITATION PERIOD ON
ASSESSMENT SHOULD ALSO NOT APPLY TO CERTAIN CASES WHERE THE TAXPAYER
HAS UNDERSTATED HIS GROSS INCOME ON HIS RETURN BY A LARGE AMOUNT, EVEN
THOUGH FRAUD WITH INTENT TO EVADE TAX CANNOT BE ESTABLISHED.  IT IS,
THEREFORE, RECOMMENDED THAT THE STATUTE OF LIMITATIONS SHALL NOT APPLY
WHERE THE TAXPAYER HAS FAILED TO DISCLOSE IN HIS RETURN AN AMOUNT OF
GROSS INCOME IN EXCESS OF 25 PERCENT OF THE AMOUNT OF THE GROSS INCOME
STATED IN THE RETURN.  THE GOVERNMENT SHOULD NOT BE PENALIZED WHEN A
TAXPAYER IS SO NEGLIGENT AS TO LEAVE OUT ITEMS OF SUCH MAGNITUDE FROM
HIS RETURN."  HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS,
73D CONG., 2D SESS. 139. 

THIS PURPOSE OF THE PROPOSAL WAS RELATED TO THE FULL COMMITTEE IN THE
FOLLOWING COLLOQUY BETWEEN CONGRESSMAN COOPER OF TENNESSEE, SPEAKING
FOR THE SUBCOMMITTEE, AND MR. ROSWELL MAGILL, REPRESENTING THE
TREASURY: 

"MR. COOPER.  WHAT WE REALLY HAD IN MIND WAS JUST THIS KIND OF A
SITUATION:  ASSUME THAT A TAXPAYER LEFT OUT, SAY, A MILLION DOLLARS; HE
JUST FORGOT IT.  WE FELT THAT WHENEVER WE FOUND THAT HE DID THAT WE
OUGHT TO GET THE MONEY ON IT, THE TAX ON IT. 

"MR. MAGILL.  I WILL NOT ARGUE AGAINST YOU ON THAT SCORE. 

"MR. COOPER.  IN OTHER WORDS, IF A MAN IS SO NEGLIGENT AND SO
FORGETFUL, OR WHATEVER THE REASON IS, THAT HE OVERLOOKS AN ITEM
AMOUNTING TO AS MUCH AS 25 PERCENT OF HIS GROSS INCOME, THAT WE SIMPLY
OUGHT TO HAVE THE OPPORTUNITY OF GETTING THE TAX ON THAT AMOUNT OF
MONEY."  HOUSE HEARINGS, SUPRA, AT 149. 

THE FULL COMMITTEE REVEALED THE SAME ATTITUDE IN ITS REPORT: 

"IT IS NOT BELIEVED THAT TAXPAYERS WHO ARE SO NEGLIGENT AS TO LEAVE
OUT OF THEIR RETURNS ITEMS OF SUCH MAGNITUDE SHOULD BE ACCORDED THE
PRIVILEGE OF PLEADING THE BAR OF THE STATUTE."  H.R. REP. NO. 704, 73D
CONG., 2D SESS. 35. 

THE SENATE FINANCE COMMITTEE APPROVED OF THE INTENDED COVERAGE AND
LANGUAGE OF THE BILL, EXCEPT THAT IT BELIEVED THE STATUTE OF
LIMITATIONS SHOULD NOT BE KEPT OPEN INDEFINITELY IN THE CASE OF AN
HONEST BUT NEGLIGENT TAXPAYER.  ITS REPORT STATED: 

"  ...  YOUR COMMITTEE IS IN GENERAL ACCORD WITH THE POLICY EXPRESSED
IN THIS SECTION OF THE HOUSE BILL.  HOWEVER, IT IS BELIEVED THAT IN THE
CASE OF A TAXPAYER WHO MAKES AN HONEST MISTAKE, IT WOULD BE UNFAIR TO
KEEP THE STATUTE OPEN INDEFINITELY.  FOR INSTANCE, A CASE MIGHT ARISE
WHERE A TAXPAYER FAILED TO REPORT A DIVIDEND BECAUSE HE WAS ERRONEOUSLY
ADVISED BY THE OFFICERS OF THE CORPORATION THAT IT WAS PAID OUT OF
CAPITAL OR HE MIGHT REPORT AS INCOME FOR ONE YEAR AN ITEM OF INCOME
WHICH PROPERLY BELONGED IN ANOTHER YEAR.  ACCORDINGLY, YOUR COMMITTEE
HAS PROVIDED FOR A 5-YEAR STATUTE IN SUCH CASES."  S. REP. NO. 558, 73D
CONG., 2D SESS. 43-44. 

EXCEPT FOR EMBODYING THE FIVE-YEAR PERIOD OF LIMITATION, SEC. 275(C),
AS PASSED, REFLECTS NO CHANGE IN THE ORIGINAL BASIC OBJECTIVE
UNDERLYING ITS ENACTMENT. 

AS REBUTTING THESE PERSUASIVE INDICATIONS THAT CONGRESS MERELY HAD IN
MIND FAILURES TO REPORT PARTICULAR INCOME RECEIPTS AND ACCRUALS, AND
DID NOT INTEND THE FIVE-YEAR LIMITATION TO APPLY WHENEVER GROSS INCOME
WAS UNDERSTATED, THE COMMISSIONER STRESSES THE OCCASIONAL USE OF THE
PHRASE "UNDERSTATES GROSS INCOME" IN THE LEGISLATIVE MATERIALS.  THE
FORCE OF THIS CONTENTION IS MUCH DILUTED, HOWEVER, WHEN IT IS OBSERVED
THAT WHEREVER THIS GENERAL LANGUAGE IS FOUND ITS INTENDED MEANING IS
IMMEDIATELY ILLUMINATED BY THE USE OF SUCH PHRASES AS "FAILED TO
DISCLOSE" OR "TO LEAVE OUT" ITEMS OF INCOME.  SEE UPTEGROVE LUMBER CO.
V. COMMISSIONER, 204 F.2D 570, 572. 

THE COMMISSIONER ALSO SUGGESTS THAT IN ENACTING SEC. 275(C) CONGRESS
WAS PRIMARILY CONCERNED WITH PROVIDING FOR A LONGER PERIOD OF
LIMITATIONS WHERE RETURNS CONTAINED RELATIVELY LARGE ERRORS ADVERSELY
AFFECTING THE TREASURY, AND THAT EFFECT CAN BE GIVEN THIS PURPOSE ONLY
BY ADOPTING THE GOVERNMENT'S BROAD CONSTRUCTION OF THE STATUTE.  BUT
THIS THEORY DOES NOT PERSUADE US.  FOR IF THE MERE SIZE OF THE ERROR
HAD BEEN THE PRINCIPAL CONCERN OF CONGRESS, ONE MIGHT HAVE EXPECTED TO
FIND THE STATUTE CAST IN TERMS OF ERRORS IN THE TOTAL TAX DUE OR IN
TOTAL TAXABLE NET INCOME.  WE HAVE BEEN UNABLE TO FIND ANY SOLID
SUPPORT FOR THE GOVERNMENT'S THEORY IN THE LEGISLATIVE HISTORY. 
INSTEAD, AS THE EXCERPTS SET OUT ABOVE ILLUSTRATE, THIS HISTORY SHOWS
TO OUR SATISFACTION THAT THE CONGRESS INTENDED AN EXCEPTION TO THE
USUAL THREE-YEAR STATUTE OF LIMITATIONS ONLY IN THE RESTRICTED TYPE OF
SITUATION ALREADY DESCRIBED. 

WE THINK THAT IN ENACTING SEC. 275(C) CONGRESS MANIFESTED NO BROADER
PURPOSE THAN TO GIVE THE COMMISSIONER AN ADDITIONAL TWO YEARS TO
INVESTIGATE TAX RETURNS IN CASES WHERE, BECAUSE OF A TAXPAYER'S
OMISSION TO REPORT SOME TAXABLE ITEM, THE COMMISSIONER IS AT A SPECIAL
DISADVANTAGE IN DETECTING ERRORS.  IN SUCH INSTANCES THE RETURN ON ITS
FACE PROVIDES NO CLUE TO THE EXISTENCE OF THE OMITTED ITEM.  ON THE
OTHER HAND, WHEN, AS HERE, THE UNDERSTATEMENT OF A TAX ARISES FROM AN
ERROR IN REPORTING AN ITEM DISCLOSED ON THE FACE OF THE RETURN THE
COMMISSIONER IS AT NO SUCH DISADVANTAGE.  AND THIS WOULD SEEM TO BE SO
WHETHER THE ERROR BE ONE AFFECTING "GROSS INCOME" OR ONE, SUCH AS
OVERSTATED DEDUCTIONS, AFFECTING OTHER PARTS OF THE RETURN.  TO ACCEPT
THE COMMISSIONER'S INTERPRETATION AND TO IMPOSE A FIVE-YEAR LIMITATION
WHEN SUCH ERRORS AFFECT "GROSS INCOME," BUT A THREE-YEAR LIMITATION
WHEN THEY DO NOT, NOT ONLY WOULD BE TO READ SEC. 275(C) MORE BROADLY
THAN IS JUSTIFIED BY THE EVIDENT REASON FOR ITS ENACTMENT, BUT ALSO TO
CREATE A PATENT INCONGRUITY IN THE TAX LAW.  SEE UPTEGROVE LUMBER CO.
V. COMMISSIONER, SUPRA, AT 573. 

FINALLY, OUR CONSTRUCTION OF SEC. 275(C) ACCORDS WITH THE
INTERPRETATIONS IN THE MORE RECENT DECISIONS OF FOUR DIFFERENT COURTS
OF APPEALS.  SEE NOTE 2, SUPRA.  THE FORCE OF THE REASONING IN THESE
OPINIONS WAS RECOGNIZED BY THE COURT OF APPEALS IN THE PRESENT CASE,
WHICH INDICATED THAT IT MIGHT HAVE AGREED WITH THOSE COURTS HAD THE
MATTER BEEN RES NOVA IN ITS CIRCUIT.  244 F.2D, AT 76.  AND WITHOUT
DOING MORE THAN NOTING THE SPECULATIVE DEBATE BETWEEN THE PARTIES AS TO
WHETHER CONGRESS MANIFESTED AN INTENTION TO CLARIFY OR TO CHANGE THE
1939 CODE, WE OBSERVE THAT THE CONCLUSION WE REACH IS IN HARMONY WITH
THE UNAMBIGUOUS LANGUAGE OF SEC. 6501(E)(1)(A) OF THE INTERNAL REVENUE
CODE OF 1954.  (FN3)    WE HOLD THAT BOTH TAX ASSESSMENTS BEFORE US
WERE BARRED BY THE STATUTE OF LIMITATIONS.  REVERSED. 

FN1  THE PERTINENT PROVISIONS OF THE 1939 CODE ARE: 

"SEC. 275.  PERIOD OF LIMITATION UPON ASSESSMENT AND COLLECTION. 

"EXCEPT AS PROVIDED IN SECTION 276: 

"(A)  GENERAL RULE.  - THE AMOUNT OF INCOME TAXES IMPOSED BY THIS
CHAPTER SHALL BE ASSESSED WITHIN THREE YEARS AFTER THE RETURN WAS
FILED, AND NO PROCEEDING IN COURT WITHOUT ASSESSMENT FOR THE COLLECTION
OF SUCH TAXES SHALL BE BEGUN AFTER THE EXPIRATION OF SUCH PERIOD. 

     *         *    *         *         * 

"(C)  OMISSION FROM GROSS INCOME.  - IF THE TAXPAYER OMITS FROM GROSS
INCOME AN AMOUNT PROPERLY INCLUDIBLE THEREIN WHICH IS IN EXCESS OF 25
PER CENTUM OF THE AMOUNT OF GROSS INCOME STATED IN THE RETURN, THE TAX
MAY BE ASSESSED, OR A PROCEEDING IN COURT FOR THE COLLECTION OF SUCH
TAX MAY BE BEGUN WITHOUT ASSESSMENT, AT ANY TIME WITHIN 5 YEARS AFTER
THE RETURN WAS FILED. 

     *         *         *  *         * 

"SEC. 276.  SAME - EXCEPTIONS. 

"(A)  FALSE RETURN OR NO RETURN.  - IN THE CASE OF A FALSE OR
FRADULENT RETURN WITH INTENT TO EVADE TAX OR OF A FAILURE TO FILE A
RETURN THE TAX MAY BE ASSESSED, OR A PROCEEDING IN COURT FOR THE
COLLECTION OF SUCH TAX MAY BE BEGUN WITHOUT ASSESSMENT, AT ANY TIME. 

"(B)  WAIVER.  - WHERE BEFORE THE EXPIRATION OF THE TIME PRESCRIBED
IN SECTION 275 FOR THE ASSESSMENT OF THE TAX, BOTH THE COMMISSIONER AND
THE TAXPAYER HAVE CONSENTED IN WRITING TO ITS ASSESSMENT AFTER SUCH
TIME, THE TAX MAY BE ASSESSED AT ANY TIME PRIOR TO THE EXPIRATION OF
THE PERIOD AGREED UPON.  THE PERIOD SO AGREED UPON MAY BE EXTENDED BY
SUBSEQUENT AGREEMENTS IN WRITING MADE BEFORE THE EXPIRATION OF THE
PERIOD PREVIOUSLY AGREED UPON." 

FN2  IN CONFLICT WITH THIS CASE ARE DECISIONS IN FOUR DIFFERENT
COURTS OF APPEALS.  UPTEGROVE LUMBER CO. V. COMMISSIONER, 204 F.2D 570
(C.A. 3D CIR.); DEAKMAN-WELLS CO. V. COMMISSIONER, 213 F.2D 894 (C.A.
3D CIR.); SLAFF V. COMMISSIONER, 220 F.2D 65 (C.A. 9TH CIR.); DAVIS V.
HIGHTOWER, 230 F.2D 549 (C.A. 5TH CIR.); GOODENOW V. COMMISSIONER, 238
F.2D 20 (C.A. 8TH CIR.).  THE COURT OF CLAIMS HAS ALSO HELD TO THE
CONTRARY OF THE PRESENT CASE.  LAZARUS V. COMMISSIONER, 136 CT. CL.
283, 142 F. SUPP. 897. 

THREE COURTS OF APPEALS DECISIONS ANTEDATING UPTEGROVE LUMBER CO. V.
COMMISSIONER, SUPRA, PROVIDED SUPPORT FOR THE GOVERNMENT'S CONSTRUCTION
OF SEC. 275(C).  FOSTER'S ESTATE V. COMMISSIONER, 131 F.2D 405 (C.A.
5TH CIR.); KETCHAM V. COMMISSIONER, 142 F.2D 996 (C.A.2D CIR.); O'BRYAN
V. COMMISSIONER, 148 F.2D 456 (C.A. 9TH CIR.).  BUT NEITHER FOSTER'S
ESTATE NOR O'BRYAN CAN BE REGARDED AS THE CONTROLLING AUTHORITY WITHIN
THEIR RESPECTIVE CIRCUITS IN VIEW OF THE MORE RECENT DECISIONS IN DAVIS
V. HIGHTOWER, SUPRA, AND SLAFF V. COMMISSIONER, SUPRA.  KETCHAM IS
DISTINGUISHABLE ON ITS FACTS. 

THE SIXTH CIRCUIT HAS CONSISTENTLY MAINTAINED ITS CURRENT POSITION. 
THE TAX COURT HAS ALSO REGULARLY UPHELD THE COMMISSIONER.  E.G.,
AMERICAN LIBERTY OIL CO. V. COMMISSIONER, 1 T.C. 386; ESTATE OF GIBBS
V. COMMISSIONER, 21 T.C. 443. 

FN3  SEC. 6501.  LIMITATIONS ON ASSESSMENT AND COLLECTION. 

     *         *         *        *         * 

"(E)  OMISSION FROM GROSS INCOME.  - EXCEPT AS OTHERWISE PROVIDED IN
SUBSECTION (C): 

"(1)  INCOME TAXES.  - IN THE CASE OF ANY TAX IMPOSED BY SUBTITLE A: 

"(A)  GENERAL RULE.  - IF THE TAXPAYER OMITS FROM GROSS INCOME AN
AMOUNT PROPERLY INCLUDIBLE THEREIN WHICH IS IN EXCESS OF 25 PERCENT OF
THE AMOUNT OF GROSS INCOME STATED IN THE RETURN, THE TAX MAY BE
ASSESSED, OR A PROCEEDING IN COURT FOR THE COLLECTION OF SUCH TAX MAY
BE BEGUN WITHOUT ASSESSMENT, AT ANY TIME WITHIN 6 YEARS AFTER THE
RETURN WAS FILED.  FOR PURPOSES OF THIS SUBPARAGRAPH: 

"(I)  IN THE CASE OF A TRADE OR BUSINESS, THE TERM "GROSS INCOME"
MEANS THE TOTAL OF THE AMOUNTS RECEIVED OR ACCRUED FROM THE SALE OF
GOODS OR SERVICES (IF SUCH AMOUNTS ARE REQUIRED TO BE SHOWN ON THE
RETURN) PRIOR TO DIMINUTION BY THE COST OF SUCH SALES OR SERVICES;
AND: 

"(II)  IN DETERMINING THE AMOUNT OMITTED FROM GROSS INCOME, THERE
SHALL NOT BE TAKEN INTO ACCOUNT ANY AMOUNT WHICH IS OMITTED FROM GROSS
INCOME STATED IN THE RETURN IF SUCH AMOUNT IS DISCLOSED IN THE RETURN,
OR IN A STATEMENT ATTACHED TO THE RETURN, IN A MANNER ADEQUATE TO
APPRISE THE SECRETARY OR HIS DELEGATE OF THE NATURE AND AMOUNT OF SUCH
ITEM."  68A STAT. 803, 804-805. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK WOULD FOLLOW THE
INTERPRETATION CONSISTENTLY GIVEN SEC. 275(C) BY THE TAX COURT FOR MANY
YEARS AND AFFIRM THE JUDGMENT OF THE COURT OF APPEALS IN THIS CASE. 
SEE CASES CITED IN NOTE 2 OF THE COURT'S OPINION. 
..END :




















COMMISSIONER OF INTERNAL REVENUE V. STERN 357 U.S. 39 


NO. 311.  ARGUED APRIL 7, 1958 - DECIDED JUNE 9, 1958 - 242 F.2D 322,
AFFIRMED. 


BECAUSE THE ASSETS OF THE ESTATE OF RESPONDENT'S HUSBAND WERE
INSUFFICIENT TO MEET HIS LIABILITY FOR INCOME TAX DEFICIENCIES FOUND TO
HAVE BEEN DUE BEFORE HIS DEATH, THE COMMISSIONER PROCEEDED UNDER SEC.
311 OF THE INTERNAL REVENUE CODE OF 1939 AGAINST RESPONDENT AS THE
BENEFICIARY OF LIFE INSURANCE POLICIES HELD BY HIM AND ON WHICH HE HAD
RETAINED THE RIGHT TO CHANGE THE BENEFICIARIES AND TO DRAW DOWN THE
CASH SURRENDER VALUES.  THERE WERE NO FINDINGS THAT HE HAD PAID ANY OF
THE PREMIUMS WITH INTENT TO DEFRAUD HIS CREDITORS OR THAT HE WAS
INSOLVENT AT ANY TIME PRIOR TO HIS DEATH, AND NO TAX LIEN HAD
ATTACHED.  HELD:  THE LAWS OF KENTUCKY, WHERE RESPONDENT AND HER
HUSBAND RESIDED, GOVERN THE QUESTION OF RESPONDENT'S LIABILITY AND
CREATE NO LIABILITY OF RESPONDENT TO THE GOVERNMENT IN THE
CIRCUMSTANCES OF THIS CASE.  PP. 40-47. 

1.  SECTION 311 NEITHER CREATES NOR DEFINES A SUBSTANTIVE LIABILITY
BUT MERELY PROVIDES A NEW PROCEDURE BY WHICH THE GOVERNMENT MAY COLLECT
TAXES.  PP. 42-44. 

2.  THERE BEING NO FEDERAL STATUTE CREATING OR DEFINING LIABILITY OF
RESPONDENT IN THIS CASE, AND CONGRESS HAVING MANIFESTED NO DESIRE FOR
UNIFORMITY OF LIABILITY, THE CREATION OF FEDERAL DECISIONAL LAW TO
FURTHER UNIFORMITY OF LIABILITY IN SUCH CASES WOULD BE UNWARRANTED; AND
THE EXISTENCE AND EXTENT OF LIABILITY SHOULD BE DETERMINED BY STATE LAW
UNTIL CONGRESS SPEAKS TO THE CONTRARY.  PP. 44-45. 

3.  CONGRESS HAVING IMPOSED NO LIABILITY ON RESPONDENT AND NO TAX
LIEN HAVING ATTACHED, THE GOVERNMENT'S SUBSTANTIVE RIGHTS IN THIS CASE
ARE PRECISELY THOSE WHICH OTHER CREDITORS WOULD HAVE UNDER KENTUCKY
LAW, AND RESPONDENT IS NOT LIABLE TO THE GOVERNMENT BECAUSE KENTUCKY
LAW IMPOSES NO LIABILITY AGAINST RESPONDENT IN FAVOR OF HER HUSBAND'S
CREDITORS IN THE CIRCUMSTANCES OF THIS CASE.  PP. 45-47. 

COMMISSIONER OF INTERNAL REVENUE V. STERN, TRANSFEREE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT PETITIONED THE TAX COURT FOR REDETERMINATION OF THE
LIABILITY ASSESSED AGAINST HER FOR HER DECEASED HUSBAND'S UNPAID INCOME
TAX DEFICIENCIES.  THE TAX COURT HELD THAT, AS BENEFICIARY OF PROCEEDS
OF HER HUSBAND'S LIFE INSURANCE EXCEEDING THE AMOUNT OF THE
DEFICIENCIES, THE RESPONDENT WAS LIABLE FOR THE FULL AMOUNT OF THE
DEFICIENCIES.  THE COURT OF APPEALS REVERSED, 242 F.2D 322, HOLDING
THAT THE RESPONDENT WAS NOT LIABLE EVEN TO THE EXTENT OF THE AMOUNT OF
THE CASH SURRENDER VALUES OF THE POLICIES, WHICH WAS LESS THAN THE
AMOUNT OF THE DEFICIENCIES.  WE GRANTED CERTIORARI.  355 U.S. 810. 

DR. MILTON J. STERN DIED A RESIDENT OF LEXINGTON, KENTUCKY, ON JUNE
12, 1949.  NEARLY SIX YEARS LATER THE TAX COURT HELD THAT DR. STERN HAD
BEEN DEFICIENT IN HIS INCOME TAXES FOR THE YEARS 1944 THROUGH 1947 AND
WAS LIABLE FOR THE AMOUNT, INCLUDING INTEREST AND PENALTIES, OF
$32,777.51.  BECAUSE THE ASSETS OF THE ESTATE WERE INSUFFICIENT TO MEET
THIS LIABILITY, THE COMMISSIONER PROCEEDED UNDER SEC. 311 OF THE
INTERNAL REVENUE CODE OF 1939 (FN1) AGAINST RESPONDENT, DR. STERN'S
WIDOW, AS THE BENEFICIARY OF LIFE INSURANCE POLICIES HELD BY HIM.  THE
PROCEEDS AND THE CASH SURRENDER VALUE OF THESE POLICIES AT DR. STERN'S
DEATH TOTALED $47,282.02 AND $27,259.68 RESPECTIVELY.  THE RIGHT TO
CHANGE THE BENEFICIARY AND TO DRAW DOWN THE CASH SURRENDER VALUE OF
EACH POLICY HAD BEEN RETAINED UNTIL DEATH BY DR. STERN.  THERE WERE NO
FINDINGS THAT DR. STERN PAID ANY PREMIUMS WITH INTENT TO DEFRAUD HIS
CREDITORS OR THAT HE WAS INSOLVENT AT ANY TIME PRIOR TO HIS DEATH. 

THE COURT OF APPEALS RESTED ITS DECISION UPON TWO GROUNDS:  (1) THAT
THE RESPONDENT BENEFICIARY WAS NOT A TRANSFEREE WITHIN THE MEANING OF
SEC. 311, TYSON V. COMMISSIONER, 212 F.2D 16; AND (2) THAT IN ANY EVENT
KENTUCKY STATUTES, KY. R.S., 1948, SECS. 297.140, 297.150, LIMIT THE
BENEFICIARY'S LIABILITY TO CREDITORS OF THE DECEASED INSURED TO THE
AMOUNT OF THE PREMIUMS PAID BY THE INSURED IN FRAUD OF CREDITORS, AND
CONSEQUENTLY THERE WAS NO LIABILITY SINCE THERE WAS NO EVIDENCE THAT
DR. STERN PAID ANY PREMIUM IN FRAUD OF HIS CREDITORS.  WITHOUT
INTIMATING ANY VIEW AS TO THE CORRECTNESS OF THE FIRST HOLDING OF THE
COURT OF APPEALS WE FIND IT UNNECESSARY TO DECIDE WHETHER THE
RESPONDENT WAS A TRANSFEREE WITHIN THE MEANING OF SEC. 311 (FN2)
BECAUSE WE HOLD THAT THE KENTUCKY STATUTES GOVERN THE QUESTION OF THE
BENEFICIARY'S LIABILITY AND CREATE NO LIABILITY OF THE RESPONDENT TO
THE GOVERNMENT IN THE CIRCUMSTANCES OF THIS CASE. 

FIRST.  SECTION 311(A) PROVIDES THAT "THE LIABILITY, AT LAW OR IN
EQUITY, OF A TRANSFEREE OF PROPERTY OF A TAXPAYER, IN RESPECT OF THE
TAX  ...  IMPOSED UPON THE TAXPAYER BY THIS CHAPTER" SHALL BE
"ASSESSED, COLLECTED, AND PAID IN THE SAME MANNER AND SUBJECT TO THE
SAME PROVISIONS AND LIMITATIONS AS IN THE CASE OF A DEFICIENCY IN A TAX
IMPOSED BY THIS CHAPTER  ...  ."  THE DECISIONS OF THE COURT OF APPEALS
AND THE TAX COURT HAVE BEEN IN CONFLICT ON THE QUESTION WHETHER THE
SUBSTANTIVE LIABILITY ENFORCED UNDER SEC. 311 IS TO BE DETERMINED BY
STATE OR FEDERAL LAW.  COMPARE, E.G., ROWEN V. COMMISSIONER, 215 F.2D
641, AND BOTZ V. HELVERING, 134 F.2D 538, WITH UNITED STATES V. BESS,
243 F.2D 675, AND STOUMEN V. COMMISSIONER, 27 T.C. 1014.  THIS COURT
HAS EXPRESSLY LEFT THE QUESTION OPEN.  PHILLIPS V. COMMISSIONER, 283
U.S. 589, 602. 

THE COURTS HAVE REPEATEDLY RECOGNIZED THAT SEC. 311 NEITHER CREATES
NOR DEFINES A SUBSTANTIVE LIABILITY BUT PROVIDES MERELY A NEW PROCEDURE
BY WHICH THE GOVERNMENT MAY COLLECT TAXES.  PHILLIPS V. COMMISSIONER,
SUPRA; HATCH V. MOROSCO HOLDING CO., 50 F.2D 138; LIQUIDATORS OF
EXCHANGE NATIONAL BANK V. UNITED STATES, 65 F.2D 316; HARWOOD V. EATON,
68 F.2D 12; WEIL V. COMMISSIONER, 91 F.2D 944; TOOLEY V. COMMISSIONER,
121 F.2D 350.  (FN3)  PRIOR TO THE ENACTMENT OF SEC. 280 OF THE REVENUE
ACT OF 1926, 44 STAT. 9, 61, THE PREDECESSOR OF SEC. 311, THE RIGHTS OF
THE GOVERNMENT AS CREDITOR, ENFORCEABLE ONLY BY BRINGING A BILL IN
EQUITY OR AN ACTION AT LAW, DEPENDED UPON STATE STATUTES OR LEGAL
THEORIES DEVELOPED BY THE COURTS FOR THE PROTECTION OF PRIVATE
CREDITORS, AS IN CASES WHERE THE DEBTOR HAD TRANSFERRED HIS PROPERTY TO
ANOTHER.  PHILLIPS V. COMMISSIONER, SUPRA, AT 592, N. 2; CF. PIERCE V.
UNITED STATES, 255 U.S. 398; HOSPES V. NORTHWESTERN MFG. & CAR CO., 48
MINN. 174, 50 N.W. 1117.  THIS PROCEDURE PROVED UNDULY CUMBERSOME,
HOWEVER, IN COMPARISON WITH THE SUMMARY ADMINISTRATIVE REMEDY ALLOWED
AGAINST THE TAXPAYER HIMSELF, REV. STAT. SEC. 3187, AS AMENDED BY THE
REVENUE ACT OF 1924, 43 STAT. 343.  THE PREDECESSOR SECTION OF SEC. 311
WAS DESIGNED "TO PROVIDE FOR THE ENFORCEMENT OF SUCH LIABILITY TO THE
GOVERNMENT BY THE PROCEDURE PROVIDED IN THE ACT FOR THE ENFORCEMENT OF
TAX DEFICIENCIES."  S. REP. NO. 52, 69TH CONG., 1ST SESS. 30.  "WITHOUT
IN ANY WAY CHANGING THE EXTENT OF SUCH LIABILITY OF THE TRANSFEREE
UNDER EXISTING LAW,  ...  THIS SECTION ENFORCES SUCH LIABILITY  ...  IN
THE SAME MANNER AS LIABILITY FOR A TAX DEFICIENCY IS ENFORCED; THAT IS,
NOTICE BY THE COMMISSIONER TO THE TRANSFEREE AND OPPORTUNITY EITHER TO
PAY AND SUE FOR REFUND OR ELSE TO PROCEED BEFORE THE BOARD OF TAX
APPEALS, WITH REVIEW BY THE COURTS.  SUCH A PROCEEDING IS IN LIEU OF
THE PRESENT EQUITY PROCEEDING  ...  ."  H.R. CONF. REP. NO. 356, 69TH
CONG., 1ST SESS. 43-44.  THEREFORE, SINCE SEC. 311 IS PURELY A
PROCEDURAL STATUTE WE MUST LOOK TO OTHER SOURCES FOR DEFINITION OF THE
SUBSTANTIVE LIABILITY.  SINCE NO FEDERAL STATUTE DEFINES SUCH
LIABILITY, WE ARE LEFT WITH A CHOICE BETWEEN FEDERAL DECISIONAL LAW AND
STATE LAW FOR ITS DEFINITION. 

SECOND.  THE GOVERNMENT URGES THAT, TO FURTHER "UNIFORMITY OF
LIABILITY," WE REJECT THE APPLICABILITY OF KENTUCKY LAW IN FAVOR OF
HAVING THE FEDERAL COURTS FASHION GOVERNING RULES.  CF. CLEARFIELD
TRUST CO. V. UNITED STATES, 318 U.S. 363.  BUT A FEDERAL DECISIONAL LAW
IN THIS FIELD DISPLACING STATE STATUTES AS DETERMINATIVE OF LIABILITY
WOULD BE A SHARP BREAK WITH THE PAST.  FEDERAL COURTS, IN CASES WHERE
THE GOVERNMENT SEEKS TO COLLECT UNPAID TAXES FROM PERSONS OTHER THAN
THE DEFAULTING TAXPAYER, HAVE APPLIED STATE STATUTES, HUTTON V.
COMMISSIONER, 59 F.2D 66; WEIL V. COMMISSIONER, SUPRA; UNITED STATES V.
GOLDBLATT, 128 F.2D 576; BOTZ V. HELVERING, SUPRA, AND THE GOVERNMENT
ITSELF HAS URGED RELIANCE UPON SUCH STATUTES IN SIMILAR CASES, G.C.M.
2514, VI-2 CUM. BULL.  99; G.C.M. 3491, VII-1 CUM. BULL.  147.  THE
CONGRESS WAS AWARE OF THE USE OF STATE STATUTES WHEN THE ENACTMENT OF
THE PREDECESSOR SECTION TO SEC. 311 WAS UNDER CONSIDERATION, FOR THE
CONGRESS IN DISCLAIMING ANY INTENTION "TO DEFINE OR CHANGE EXISTING
LIABILITY," S. REP. NO. 52, 69TH CONG., 1ST SESS. 30, IDENTIFIED
"EXISTING LIABILITY" AS LIABILITY ENSUING "BY REASON OF THE TRUST FUND
DOCTRINE AND VARIOUS STATE STATUTORY PROVISIONS  ...  ."  H.R. CONF.
REP. NO. 356, SUPRA, AT 43. 

IT IS TRUE THAT, IN ADDITION TO RELIANCE UPON STATE STATUTES, THE
GOVERNMENT INVOKED PRINCIPLES JUDICIALLY DEVELOPED FOR THE PROTECTION
OF PRIVATE CREDITORS, IN CASES WHERE THE DEBTOR HAD TRANSFERRED HIS
PROPERTY TO ANOTHER AND BEEN LEFT INSOLVENT.  CF. PIERCE V. UNITED
STATES, SUPRA; HOSPES V. NORTHWESTERN MFG. & CAR CO., SUPRA.  IN SUCH
CASES THE FEDERAL COURTS APPLIED A "GENERAL LAW" WHICH DID NOT
DISTINGUISH BETWEEN FEDERAL AND STATE DECISIONAL LAW.  BUT THE FACT
REMAINS THAT THE VARYING DEFINITIONS OF LIABILITY UNDER STATE STATUTES
RESULTED IN AN ABSENCE OF UNIFORMITY OF LIABILITY.  YET CONGRESS, WITH
KNOWLEDGE THAT THIS WAS "EXISTING LAW" AT THE TIME THE PREDECESSOR
PREVAILING PRACTICE.  UNIFORMITY IS NOT ALWAYS THE FEDERAL POLICY. 
UNDER SEC. 70 OF THE BANKRUPTCY ACT, FOR INSTANCE, STATE LAW IS APPLIED
TO DETERMINE WHAT PROPERTY OF THE BANKRUPT HAS BEEN TRANSFERRED IN
FRAUD OF CREDITORS.  30 STAT. 565, AS AMENDED, 11 U.S.C. SEC. 110. 
WHAT IS A GOOD TRANSFER IN ONE JURISDICTION MIGHT NOT BE SO IN
ANOTHER. 

SINCE CONGRESS HAS NOT MANIFESTED A DESIRE FOR UNIFORMITY OF
LIABILITY, WE THINK THAT THE CREATION OF A FEDERAL DECISIONAL LAW WOULD
BE INAPPROPRIATE IN THESE CASES.  IN DIVERSITY CASES, THE FEDERAL
COURTS MUST NOW APPLY STATE DECISIONAL LAW IN DEFINING STATE-CREATED
RIGHTS, OBLIGATIONS, AND LIABILITIES.  ERIE R. CO. V. TOMPKINS, 304
U.S. 64.  THEY WOULD, OF COURSE, DO SO IN DIVERSITY ACTIONS BROUGHT BY
PRIVATE CREDITORS.  SINCE THE FEDERAL COURTS NO LONGER FORMULATE A BODY
OF FEDERAL DECISIONAL LAW FOR THE LARGER FIELD OF CREDITORS' RIGHTS IN
DIVERSITY CASES, ANY SUCH EFFORT FOR THE SMALL FIELD OF ACTIONS BY THE
GOVERNMENT AS A CREDITOR WOULD BE NECESSARILY EPISODIC.  THAT EFFORT IS
PLAINLY NOT JUSTIFIED WHEN THERE EXISTS A FLEXIBLE BODY OF PERTINENT
STATE LAW CONTINUOUSLY BEING ADAPTED TO CHANGING CIRCUMSTANCES
AFFECTING ALL CREDITORS.  ACCORDINGLY WE HOLD THAT, UNTIL CONGRESS
SPEAKS TO THE CONTRARY, THE EXISTENCE AND EXTENT OF LIABILITY SHOULD BE
DETERMINED BY STATE LAW. 

THIRD.  THE COURT OF APPEALS HELD IN THIS CASE THAT UNDER THE
APPLICABLE KENTUCKY LAW THE BENEFICIARY OF A LIFE INSURANCE POLICY IS
NOT LIABLE TO THE INSURED'S CREDITORS, AT LEAST WHERE, AS HERE, THE
PREMIUMS HAVE NOT BEEN PAID IN FRAUD OF CREDITORS, KY. R.S., 1948,
SECS. 297.140, 297.150, (FN4) AND THAT THEREFORE NO LIABILITY OF THE
RESPONDENT EXISTS UNDER STATE LAW TO ANY CREDITOR, INCLUDING THE
GOVERNMENT.  THE PARTIES DO NOT CONTEST THIS CONSTRUCTION OF LOCAL
LAW. 

THE GOVERNMENT, HOWEVER, ARGUES IN ITS BRIEF, "JUST AS IN THE
SITUATION WHERE A TAX LIEN HAS ATTACHED IT IS HELD THAT STATE LAW MAY
NOT DESTROY THAT LIEN, SO HERE, WHERE A TAX LIABILITY IS IMPOSED BY
CONGRESS, THE STATE MAY NOT PROVIDE EXCEPTIONS."  WE AGREE THAT STATE
LAW MAY NOT DESTROY A TAX LIEN WHICH HAS ATTACHED IN THE INSURED'S
LIFETIME.  WE HELD TODAY IN UNITED STATES V. BESS, POST, P. 51, THAT A
NEW JERSEY STATUTE, SIMILAR TO THE KENTUCKY STATUTES, COULD NOT DEFEAT
THE ATTACHMENT IN THE INSURED'S LIFETIME OF A FEDERAL TAX LIEN UNDER
SEC. 3670 AGAINST THE CASH SURRENDER VALUE OF THE POLICY, OR PREVENT
ENFORCEMENT OF THE LIEN OUT OF THE PROCEEDS RECEIVED BY THE BENEFICIARY
ON THE INSURED'S DEATH.  WE MIGHT ALSO AGREE THAT A STATE MAY NOT
PROVIDE EXEMPTIONS FROM A TAX LIABILITY IMPOSED BY CONGRESS.  THE
FALLACY IN THE GOVERNMENT'S ARGUMENT IS IN THE PREMISE THAT CONGRESS
HAS IMPOSED A TAX LIABILITY AGAINST THE BENEFICIARY.  WE HAVE CONCLUDED
THAT CONGRESS HAS NOT SEEN FIT TO DEFINE THAT LIABILITY AND THAT NONE
EXISTS EXCEPT SUCH AS IS IMPOSED BY STATE LAW.  THUS THERE IS NO
PROBLEM HERE OF GIVING EFFECT TO STATE EXEMPTION PROVISIONS WHEN
FEDERAL LAW IMPOSES SUCH LIABILITY.  THE GOVERNMENT'S SUBSTANTIVE
RIGHTS IN THIS CASE ARE PRECISELY THOSE WHICH OTHER CREDITORS WOULD
HAVE UNDER KENTUCKY LAW.  THE RESPONDENT IS NOT LIABLE TO THE
GOVERNMENT BECAUSE KENTUCKY LAW IMPOSES NO LIABILITY AGAINST RESPONDENT
IN FAVOR OF DR. STERN'S OTHER CREDITORS.  AFFIRMED. 

FN1  SECTION 311 PROVIDES: 

"(A)  METHOD OF COLLECTION.  - THE AMOUNTS OF THE FOLLOWING
LIABILITIES SHALL, EXCEPT AS HEREINAFTER IN THIS SECTION PROVIDED, BE
ASSESSED, COLLECTED, AND PAID IN THE SAME MANNER AND SUBJECT TO THE
SAME PROVISIONS AND LIMITATIONS AS IN THE CASE OF A DEFICIENCY IN A TAX
IMPOSED BY THIS CHAPTER (INCLUDING THE PROVISIONS IN CASE OF
DELINQUENCY IN PAYMENT AFTER NOTICE AND DEMAND, THE PROVISIONS
AUTHORIZING DISTRAINT AND PROCEEDINGS IN COURT FOR COLLECTION, AND THE
PROVISIONS PROHIBITING CLAIMS AND SUITS FOR REFUNDS): 

"(1)  TRANSFEREES.  - THE LIABILITY, AT LAW OR IN EQUITY, OF A
TRANSFEREE OF PROPERTY OF A TAXPAYER, IN RESPECT OF THE TAX (INCLUDING
INTEREST, ADDITIONAL AMOUNTS, AND ADDITIONS TO THE TAX PROVIDED BY LAW)
IMPOSED UPON THE TAXPAYER BY THIS CHAPTER. 

     *         *         *       *         * 

"(F)  DEFINITION OF 'TRANSFEREE'.  - AS USED IN THIS SECTION, THE
TERM 'TRANSFEREE' INCLUDES HEIR, LEGATEE, DEVISEE, AND DISTRIBUTEE." 
53 STAT. 90, 91. 

FN2  THE COURT OF APPEALS IN THIS CASE FOLLOWED ITS OWN PRIOR
DECISION IN TYSON V. COMMISSIONER, 212 F.2D 16, IN HOLDING THAT MRS.
STERN AS BENEFICIARY WAS NOT A "TRANSFEREE" OF ANY PART OF THE PROCEEDS
WITHIN THE MEANING OF SEC. 311.  OTHER COURTS OF APPEALS HAVE HELD THAT
THE BENEFICIARY IS A TRANSFEREE ONLY TO THE EXTENT OF THE CASH
SURRENDER VALUE EXISTING AT THE TIME OF THE INSURED'S DEATH.  ROWEN V.
COMMISSIONER, 215 F.2D 641; UNITED STATES V. BESS, 243 F.2D 675.  THE
TAX COURT, ON THE OTHER HAND, HAS HELD THAT THE BENEFICIARY IS THE
TRANSFEREE OF THE ENTIRE PROCEEDS.  STOUMEN V. COMMISSIONER, 27 T.C.
1014. 

FN3  THE GOVERNMENT ARGUES THAT SINCE SEC. 311 AND SEC. 900 WERE
ORIGINALLY ENACTED AS CORRELATIVE PROVISIONS OF THE REVENUE ACT OF 1926
A SUBSTANTIVE LIABILITY IS IMPOSED UPON THE BENEFICIARY FOR BOTH UNPAID
INCOME AND ESTATE TAXES OF THE DECEDENT.  BUT THE 1939 CODE "CONTAINS
NO PROVISION IN RESPECT TO INCOME TAX COLLECTION COMPARABLE TO SECTION
827(B) OF THE CODE WHICH EXPRESSLY IMPOSES LIABILITY FOR THE ESTATE TAX
ON A 'BENEFICIARY, WHO RECEIVES  ...  PROPERTY INCLUDED IN THE GROSS
ESTATE UNDER SECTION 811(F).'"  ROWEN V. COMMISSIONER, 215 F.2D 641,
646.    FN4  KENTUCKY REVISED STATUTES PROVIDED: 

"297.140  LIFE INSURANCE FOR BENEFIT OF A MARRIED WOMAN; PREMIUMS
PAID IN FRAUD OF CREDITORS.  (1) A POLICY OF INSURANCE ON THE LIFE OF
ANY PERSON EXPRESSED TO BE FOR THE BENEFIT OF, OR DULY ASSIGNED,
TRANSFERRED OR MADE PAYABLE TO, ANY MARRIED WOMAN, OR TO ANY PERSON IN
TRUST FOR HER, OR FOR HER BENEFIT, BY WHOMSOEVER SUCH TRANSFER MAY BE
MADE, SHALL INURE TO HER SEPARATE USE AND BENEFIT AND THAT OF HER
CHILDREN, INDEPENDENTLY OF HER HUSBAND OR HIS CREDITORS OR ANY OTHER
PERSON EFFECTING OR TRANSFERRING THE POLICY OR HIS CREDITORS. 

"(2)  A MARRIED WOMAN MAY, WITHOUT CONSENT OF HER HUSBAND, CONTRACT,
PAY FOR, TAKE OUT AND HOLD A POLICY OF INSURANCE UPON THE LIFE OR
HEALTH OF HER HUSBAND OR CHILDREN, OR AGAINST LOSS BY HIS OR THEIR
DISABLEMENT BY ACCIDENT.  THE PREMIUMS PAID ON THE POLICY SHALL BE HELD
TO HAVE BEEN HER SEPARATE ESTATE, AND THE POLICY SHALL INURE TO HER
SEPARATE USE AND BENEFIT AND THAT OF HER CHILDREN, FREE FROM ANY CLAIM
OF HER HUSBAND OR OTHERS. 

"(3)  IF THE PREMIUM ON ANY POLICY MENTIONED IN THIS SECTION IS PAID
BY ANY PERSON WITH INTENT TO DEFRAUD HIS CREDITORS, AN AMOUNT EQUAL TO
THE PREMIUM SO PAID, WITH INTEREST THEREON, SHALL INURE TO THE BENEFIT
OF THE CREDITORS, SUBJECT TO THE STATUTE OF LIMITATIONS. 

"297.150  LIFE INSURANCE FOR BENEFIT OF ANOTHER; PREMIUMS PAID IN
FRAUD OF CREDITORS.  (1) WHEN A POLICY OF INSURANCE IS EFFECTED BY ANY
PERSON ON HIS OWN LIFE OR ON ANOTHER LIFE IN FAVOR OF SOME PERSON OTHER
THAN HIMSELF HAVING AN INSURABLE INTEREST THEREIN, THE LAWFUL
BENEFICIARY THEREOF, OTHER THAN THE PERSON EFFECTING THE INSURANCE OR
HIS LEGAL REPRESENTATIVES, SHALL BE ENTITLED TO ITS PROCEEDS AGAINST
THE CREDITORS AND REPRESENTATIVES OF THE PERSON EFFECTING THE SAME. 

"(2)  SUBJECT TO THE STATUTE OF LIMITATIONS, THE AMOUNT OF ANY
PREMIUMS FOR SUCH INSURANCE PAID IN FRAUD OF CREDITORS, WITH INTEREST
THEREON, SHALL INURE TO THEIR BENEFIT FROM THE PROCEEDS OF THE POLICY,
BUT THE COMPANY ISSUING THE POLICY SHALL BE DISCHARGED OF ALL LIABILITY
THEREON BY PAYMENT OF ITS PROCEEDS IN ACCORDANCE WITH ITS TERMS,
UNLESS, BEFORE SUCH PAYMENT, THE COMPANY RECEIVED WRITTEN NOTICE BY OR
IN BEHALF OF SOME CREDITOR, WITH SPECIFICATION OF THE AMOUNT CLAIMED,
CLAIMING TO RECOVER FOR CERTAIN PREMIUMS PAID IN FRAUD OF CREDITORS." 

MR. JUSTICE BLACK, WHOM THE CHIEF JUSTICE AND MR. JUSTICE WHITTAKER
JOIN, DISSENTING. 

WE ARE CONCERNED HERE WITH A SUIT AGAINST THE UNITED STATES TO
DETERMINE THE LIABILITY OF A PARTY FOR FEDERAL INCOME TAXES.  IN MY
JUDGMENT IT IS A MISTAKE TO LOOK TO STATE LAW TO DECIDE THAT
LIABILITY.  THE LAWS OF THE SEVERAL STATES ARE BOUND TO VARY WIDELY
WITH RESPECT TO THE RESPONSIBILITY OF TRANSFEREES FOR THE OBLIGATIONS
OF THEIR TRANSFERORS.  THEREFORE APPLICATION OF STATE LAW LEADS TO THE
ANOMALOUS RESULT THAT TRANSFEREES WILL BE LIABLE FOR FEDERAL TAXES IN
ONE STATE BUT NOT IN ANOTHER EVEN THOUGH THEY STAND IN PRECISELY THE
SAME POSITION.  I BELIEVE THAT SUCH UNEVEN APPLICATION OF WHAT THIS
COURT HAS CHARACTERIZED AS "A NATIONWIDE SCHEME OF TAXATION," BURNET V.
HARMEL, 287 U.S. 103, 110, IS THOROUGHLY UNWISE AND IS NOT REQUIRED BY
THE CONSTITUTION, BY ACTS OF CONGRESS, OR BY ANY COMPELLING PRACTICAL
CONSIDERATIONS. 

IN MY VIEW, LIABILITY FOR FEDERAL TAXES SHOULD BE DETERMINED BY
UNIFORM PRINCIPLES OF FEDERAL LAW, IN THE ABSENCE OF THE PLAINEST
CONGRESSIONAL MANDATE TO THE CONTRARY.*  WHERE AS HERE CONGRESS HAS
PROVIDED NO STANDARDS WHICH DEFINE THE LIABILITY OF A TRANSFEREE FOR
THE TAXES OF HIS TRANSFEROR THE FEDERAL COURTS THEMSELVES SHOULD
FASHION A UNIFORM BODY OF CONTROLLING RULES WHICH FAIRLY IMPLEMENT THE
COLLECTION OF GOVERNMENT REVENUES.  CF. CLEARFIELD TRUST CO. V. UNITED
STATES, 318 U.S. 363; UNITED STATES V. STANDARD RICE CO., 323 U.S. 106;
UNITED STATES V. STANDARD OIL CO., 332 U.S. 301; PRIEBE & SONS, INC.,
V. UNITED STATES, 332 U.S. 407; TEXTILE WORKERS UNION OF AMERICA V.
LINCOLN MILLS OF ALABAMA, 353 U.S. 448.  IT CAN HARDLY BE DENIED THAT
UNIFORMITY IN THE IMPOSITION AND COLLECTION OF FEDERAL TAXES HAS ALWAYS
BEEN REGARDED AS EXTREMELY DESIRABLE IN THIS COUNTRY.  INDEED THOSE WHO
FRAMED THE CONSTITUTION DEEMED IT SO IMPORTANT THAT THEY EXPRESSLY
REQUIRED THAT "ALL DUTIES, IMPOSTS AND EXCISES LEVIED BY CONGRESS SHALL
BE UNIFORM THROUGHOUT THE UNITED STATES."  ART. I, SEC. 8.  CF. ART. I,
SECS. 2, 9.  TAXPAYERS SHOULD BE TREATED EQUALLY WITHOUT REGARD TO THE
FORTUITY OF RESIDENCE; AND THE ADDITIONAL COMPLICATION AND
INCONVENIENCE IN THE ADMINISTRATION OF AN ALREADY COMPLEX FEDERAL TAX
SYSTEM WHICH IS CERTAIN TO FOLLOW AN ATTEMPT TO APPLY THE DIFFERING
LAWS OF 48 STATES TO TRANSFEREE LIABILITY OUGHT TO BE AVOIDED, IF AT
ALL POSSIBLE. 

*"AS WE HAVE OFTEN HAD OCCASION TO POINT OUT, THE REVENUE LAWS ARE TO
BE CONSTRUED IN THE LIGHT OF THEIR GENERAL PURPOSE TO ESTABLISH A
NATIONWIDE SCHEME OF TAXATION UNIFORM IN ITS APPLICATION.  HENCE THEIR
PROVISIONS ARE NOT TO BE TAKEN AS SUBJECT TO STATE CONTROL OR
LIMITATION UNLESS THE LANGUAGE OR NECESSARY IMPLICATION OF THE SECTION
INVOLVED MAKES ITS APPLICATION DEPENDENT ON STATE LAW."  UNITED STATES
V. PELZER, 312 U.S. 399, 402-403. 

OF COURSE STATE LAW MUST BE CONSULTED TO DETERMINE WHAT PROPERTY
RIGHTS AND INTERESTS A TAXPAYER ACTUALLY HAS.  BUT ONCE THESE RIGHTS
AND INTERESTS ARE THUS ESTABLISHED, THEIR CONSEQUENCE FOR PURPOSES OF
FEDERAL TAXATION IS A MATTER OF FEDERAL LAW.  WATSON V. COMMISSIONER,
345 U.S. 544; MORGAN V. COMMISSIONER, 309 U.S. 78; BURNET V. HARMEL,
287 U.S. 103. 

HERE, CONGRESS HAS NEVER DIRECTED THAT THE TAX LIABILITY OF A
TRANSFEREE BE DETERMINED BY STATE LAW.  THE LEGISLATIVE HISTORY OF SEC.
280 OF THE REVENUE ACT OF 1926 CERTAINLY FALLS FAR SHORT OF A
CONGRESSIONAL MANDATE TO THAT EFFECT.  PRIOR TO THAT ACT THE FEDERAL
COURTS HAD APPLIED GENERAL PRINCIPLES OF EQUITY TO DETERMINE THE
LIABILITY OF TRANSFEREES FOR FEDERAL TAXES, WITHOUT REGARD TO STATE
LAW, EXCEPT FOR A FEW INSTANCES WHERE STATE STATUTES APPARENTLY WERE
MORE FAVORABLE TO THE COMMISSIONER.  BOTH SENATE AND HOUSE COMMITTEES
EMPHASIZED THAT SEC. 280 WAS SIMPLY A PROCEDURAL PROVISION NOT
AFFECTING THE SUBSTANTIVE LIABILITY OF A TRANSFEREE AS IT HAD BEEN
PREVIOUSLY DEVELOPED BY THE FEDERAL COURTS.  S. REP. NO. 52, 69TH
CONG., 1ST SESS. 30; H.R. CONF. REP. NO. 356, 69TH CONG., 1ST SESS. 43
44.  AND THE HOUSE CONFERENCE COMMITTEE WENT ON TO EXPRESS THE HOPE
THAT THE NEWLY CREATED BOARD OF TAX APPEALS WOULD GRADUALLY FASHION A
UNIFORM BODY OF PRINCIPLES TO GOVERN TRANSFEREE LIABILITY.  H.R. CONF.
REP. NO. 356, SUPRA, AT 44.  ALL THIS IS HARDLY CONSISTENT WITH THE
NOTION THAT STATE LAW WAS TO BE DECISIVE; IF ANYTHING IT INDICATES
PRECISELY THE CONTRARY.  IT MIGHT BE ADDED THAT THE TAX COURT,
MEASURING UP TO THE EXPECTATIONS OF THE HOUSE COMMITTEE, HAS
PERSISTENTLY ENDEAVORED TO DEVELOP CONSISTENT STANDARDS TO DETERMINE
TRANSFEREE LIABILITY DESPITE THE OPPOSITION OF SEVERAL COURTS OF
APPEALS.  SEE, E.G., MULLER V. COMMISSIONER, 10 T.C. 678; LEARY V.
COMMISSIONER, 18 T.C. 139; BALES V. COMMISSIONER, 22 T.C. 355; STOUMEN
V. COMMISSIONER, 27 T.C. 1014. 

I WOULD HOLD, AS A MATTER OF FEDERAL LAW, THAT WHERE A TRANSFEREE
RECEIVES PROPERTY FROM A TAXPAYER WHO IS LEFT WITH INSUFFICIENT ASSETS
TO PAY HIS FEDERAL TAXES THE TRANSFEREE IS LIABLE FOR THOSE TAXES TO
THE EXTENT HE HAS NOT GIVEN FAIR CONSIDERATION FOR THE PROPERTY
RECEIVED.  THIS HAS BEEN THE RULE APPLIED BY THOSE COURTS WHICH HAVE
HERETOFORE DETERMINED TRANSFEREE LIABILITY ON THE BASIS OF FEDERAL
LAW.  SEE, E.G., PEARLMAN V. COMMISSIONER, 153 F.2D 560; UPDIKE V.
UNITED STATES, 8 F.2D 913; STOUMEN V. COMMISSIONER, 27 T.C. 1014.  SUCH
A RULE HAS LONGSTANDING ANTECEDENTS IN THE FEDERAL COURTS WHICH MAY BE
TRACED BACK, IN PART, AT LEAST AS FAR AS THE NOTED DECISION BY JUSTICE
STORY IN WOOD V. DRUMMER, 30 FED.  CAS. 435.  IT WOULD OPERATE TO
PREVENT TAX EVASION, AND YET NOT IMPOSE AN UNFAIR BURDEN ON
TRANSFEREES. 

TURNING TO THE PRESENT CASE, I AGREE WITH THE COURT IN UNITED STATES
V. BESS, POST, P. 51, THAT THE CASH SURRENDER VALUES OF INSURANCE
POLICIES, BUT NOT THE PROCEEDS, ARE PROPERTY OF THE INSURED FOR
PURPOSES OF THE FEDERAL TAX LAWS WHICH PASS TO THE BENEFICIARY OF THE
POLICY UPON THE INSURED'S DEATH.  HERE IT APPEARS THAT THE INSURED HAD
INSUFFICIENT ASSETS AT THE TIME OF HIS DEATH TO SATISFY HIS UNPAID
INCOME TAXES.  THEREFORE I WOULD HOLD THE BENEFICIARY OF HIS POLICIES,
MRS. STERN, RESPONSIBLE FOR THE UNPAID TAXES TO THE EXTENT OF THE CASH
SURRENDER VALUE OF THOSE POLICIES JUST BEFORE HE DIED. 
..END :






















UNITED STATES V. BESS 357 U.S. 51 


NO. 395.  ARGUED APRIL 7, 1958 - DECIDED JUNE 9, 1958* - 243 F.2D 675,
AFFIRMED. 

*TOGETHER WITH NO. 410, BESS V. UNITED STATES, ALSO ON CERTIORARI TO
THE SAME COURT. 


THIS IS A CIVIL ACTION BROUGHT BY THE GOVERNMENT TO RECOVER, IN
EQUITY, FROM THE BENEFICIARY OF LIFE INSURANCE POLICIES THE AMOUNT OF
FEDERAL INCOME TAXES OWED BY THE INSURED AT THE TIME OF HIS DEATH AND
FOR SOME OF WHICH LIENS HAD ATTACHED TO ALL HIS PROPERTY UNDER SEC.
3670 OF THE INTERNAL REVENUE CODE OF 1939 BEFORE HIS DEATH.  THE
INSURED, A RESIDENT OF NEW JERSEY, HAD RETAINED THE RIGHT TO CHANGE THE
BENEFICIARIES OF THE POLICIES AND, EXCEPT AS TO ONE POLICY, THE RIGHT
TO DRAW DOWN OR BORROW AGAINST THE CASH SURRENDER VALUES AND TO ASSIGN
THE POLICIES.  HE HAD PAID ALL THE PREMIUMS AND NONE WAS PAID IN FRAUD
OF HIS CREDITORS.  SOME OF HIS FEDERAL INCOME TAX LIABILITIES WERE PAID
OUT OF THE ASSETS OF HIS ESTATE, BUT OTHERS REMAINED UNPAID WHEN HIS
ESTATE WAS ADJUDGED INSOLVENT.  HELD:  BECAUSE OF THE TAX LIENS WHICH
HAD ATTACHED TO ALL OF THE INSURED'S PROPERTY BEFORE HIS DEATH, THE
BENEFICIARY IS LIABLE TO THE EXTENT OF THE CASH SURRENDER VALUES OF HIS
POLICIES.  PP. 52-59. 

1.  HAD THERE BEEN NO LIEN, THE BENEFICIARY WOULD NOT BE LIABLE,
BECAUSE, UNDER NEW JERSEY LAW, THE BENEFICIARY OF A LIFE INSURANCE
POLICY IS ENTITLED TO ITS BENEFITS AGAINST ALL CREDITORS EXCEPT TO THE
EXTENT OF THE AMOUNT OF ANY PREMIUMS PAID IN FRAUD OF CREDITORS. 
COMMISSIONER V. STERN, ANTE, P. 39.  PP. 53-54. 

2.  BECAUSE, PRIOR TO THE DEATH OF THE INSURED, LIENS HAD ATTACHED
UNDER SEC. 3670 TO ALL OF HIS ASSETS, INCLUDING THE CASH SURRENDER
VALUES OF HIS LIFE INSURANCE POLICIES, THE BENEFICIARY IS LIABLE TO THE
EXTENT OF SUCH CASH SURRENDER VALUES.  PP. 54-59. 

(A)  UNDER NEW JERSEY LAW, THE INSURED DID NOT POSSESS, PRIOR TO HIS
DEATH, "PROPERTY" OR "RIGHTS TO PROPERTY," WITHIN THE MEANING OF SEC.
3670, IN THE PROCEEDS OF HIS LIFE INSURANCE POLICIES; BUT HE DID
POSSESS SUCH "PROPERTY" OR "RIGHTS TO PROPERTY" IN THEIR CASH SURRENDER
VALUES; AND THE FEDERAL TAX LIEN ATTACHED UNDER SEC. 3670, EVEN IF,
UNDER STATE LAW, HIS PROPERTY RIGHT REPRESENTED BY THE CASH SURRENDER
VALUES WAS NOT SUBJECT TO CREDITORS' LIENS.  PP. 55-57. 

(B)  FOR THE PURPOSES OF SEC. 3670, THERE WAS A TRANSFER OF PROPERTY
FROM THE INSURED TO THE BENEFICIARY, AND THE LIEN WHICH HAD ATTACHED TO
THE CASH SURRENDER VALUES BEFORE HIS DEATH FOLLOWED THAT PROPERTY INTO
THE HANDS OF THE BENEFICIARY.  PP. 57-59. 

UNITED STATES V. BESS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES FILED THIS CIVIL ACTION IN THE DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY TO RECOVER, IN EQUITY, FROM THE BENEFICIARY
OF LIFE INSURANCE POLICIES THE AMOUNT OF FEDERAL INCOME TAXES OWED BY
THE INSURED AT THE TIME OF HIS DEATH. 

HERMAN BESS DIED A RESIDENT OF MONMOUTH COUNTY, NEW JERSEY, ON JUNE
29, 1950.  HIS WIFE, MOLLY G. BESS, WAS THE BENEFICIARY OF EIGHT
INSURANCE POLICIES ON HIS LIFE FROM WHICH SHE RECEIVED $63,576.95 IN
PROCEEDS.  THE CASH SURRENDER VALUE OF THESE POLICIES AT HIS DEATH WAS
$3,362.53.  SEVEN OF THE POLICIES WERE ISSUED TO MR. BESS FROM 1934 TO
1937 AND THE EIGHTH, A GROUP POLICY, IN 1950.  HE RETAINED THE RIGHT
UNTIL DEATH TO CHANGE THE BENEFICIARY, TO DRAW DOWN OR BORROW AGAINST
THE CASH SURRENDER VALUE AND TO ASSIGN THE POLICIES, EXCEPT THAT UNDER
THE GROUP INSURANCE POLICY HE RETAINED ONLY THE RIGHT TO CHANGE THE
BENEFICIARY.  MR. BESS PAID ALL PREMIUMS AND IT IS CONCEDED THAT NONE
WAS PAID IN FRAUD OF HIS CREDITORS. 

THE FEDERAL INCOME TAXES WERE OWING FOR THE SEVERAL YEARS FROM 1945
TO 1949.  THE ASSETS OF MR. BESS' ESTATE WERE APPLIED TO PAYMENT OF THE
AMOUNTS OWING FOR 1948 AND 1949, BUT A TOTAL OF $8,874.57 REMAINED
OWING FOR 1945, 1946 AND 1947 WHEN THE ESTATE WAS ADJUDGED INSOLVENT BY
THE MONMOUTH COUNTY COURT IN 1952.  THE AMOUNTS OWING WERE $4,159.31
FOR 1945, $3,789.32 FOR 1946, AND $925.94 FOR 1947. 

THE DISTRICT COURT HELD MRS. BESS LIABLE FOR THE TOTAL TAXES OWING OF
$8,874.57.  134 F. SUPP. 467.  THE COURT OF APPEALS FOR THE THIRD
CIRCUIT REDUCED THE JUDGMENT TO THE AMOUNT OF THE TOTAL CASH SURRENDER
VALUE OF THE POLICIES OF $3,362.53.  243 F.2D 675.  WE GRANTED
CERTIORARI ON THE GOVERNMENT'S PETITION AND MRS. BESS' CROSS-PETITION,
355 U.S. 861, AND SET THE CASE FOR ARGUMENT WITH COMMISSIONER V. STERN,
ANTE, P. 39.  THE GOVERNMENT SEEKS IN NO. 395 THE REINSTATEMENT OF THE
DISTRICT COURT'S JUDGMENT IN THE FULL AMOUNT OF THE TAXES OWING.  MRS.
BESS SEEKS IN NO. 410 THE REVERSAL OF THE COURT OF APPEALS JUDGMENT IN
THE AMOUNT OF THE CASH SURRENDER VALUE. 

                                        I. 

AS IN COMMISSIONER V. STERN, THE GOVERNMENT ARGUES THAT MRS. BESS, AS
BENEFICIARY OF HER HUSBAND'S LIFE INSURANCE POLICIES, IS LIABLE FOR HIS
UNPAID FEDERAL INCOME TAXES.  (FN1)  WE HELD TODAY IN THE STERN CASE
THAT RECOVERY OF UNPAID FEDERAL INCOME TAXES FROM A BENEFICIARY OF
INSURANCE, IN THE ABSENCE OF A LIEN, CAN BE SUSTAINED ONLY TO THE
EXTENT THAT STATE LAW IMPOSES SUCH LIABILITY IN FAVOR OF OTHER
CREDITORS OF THE INSURED.  UNDER NEW JERSEY LAW THE BENEFICIARY OF A
POLICY OF LIFE INSURANCE IS ENTITLED TO ITS PROCEEDS AGAINST ALL
CREDITORS EXCEPT TO THE EXTENT OF THE AMOUNTS OF ANY PREMIUMS FOR THE
INSURANCE PAID IN FRAUD OF CREDITORS.  N.J. STAT. ANN., 1939, SEC.
17:34-29; SLURSZBERG V. PRUDENTIAL INS.  CO., 15 N.J. MISC. 423, 192 A.
451; MIDDLESEX COUNTY WELFARE BOARD V. MOTOLINSKY, 134 N.J.  EQ. 323,
35 A.2D 463.  IF IN THE INSTANT CASE NO LIEN WERE INVOLVED, OUR HOLDING
IN COMMISSIONER V. STERN WOULD REQUIRE AN AFFIRMANCE IN NO. 395 AND A
REVERSAL IN NO. 410, SINCE IT IS CONCEDED THAT MR. BESS DID NOT PAY ANY
PREMIUMS IN FRAUD OF HIS CREDITORS. 

                                       II. 

HOWEVER, THE GOVERNMENT CONTENDS THAT IT IS ALSO SEEKING IN THIS
ACTION TO ENFORCE, AS TO THE 1945 AND 1946 DEFICIENCIES, LIENS
PERFECTED UNDER SEC. 3670 OF THE INTERNAL REVENUE CODE OF 1939 AGAINST
THE PROPERTY OF MR. BESS IN HIS LIFETIME.  SECTION 3670 PROVIDES THAT
"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT  ...  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."  53 STAT. 448.  ON JULY 30, 1948,
AND AGAIN ON AUGUST 9, 1948, BEFORE MR. BESS DIED, NOTICE AND DEMAND
WERE MADE UPON HIM FOR PAYMENT OF THE DEFICIENCIES FORMALLY CONSENTED
TO BY HIM AS OWING FOR 1945 AND 1946.  HE MADE PERIODIC PAYMENTS ON THE
AMOUNT OWING FOR 1945, REDUCING THAT AMOUNT FROM $11,514 TO $4,713.59
BEFORE HIS DEATH.  THIS BALANCE WAS FURTHER REDUCED TO $4,159.31 BY A
PAYMENT OF $554.28 FROM HIS ESTATE PURSUANT TO AN ORDER OF THE MONMOUTH
COUNTY COURT.  HOWEVER, NO PAYMENT ON ACCOUNT OF THE $3,789.32 OWING
FOR 1946 WAS MADE EITHER IN HIS LIFETIME OR AFTER HIS DEATH. 

FIRST.  AS TO THE TAX LIEN THEORY, MRS. BESS CONTENDS THAT THE
GOVERNMENT DID NOT ASSERT THIS BASIS FOR RECOVERY BEFORE THE DISTRICT
COURT AND THEREFORE SHOULD NOT BE HEARD TO ASSERT THAT THEORY IN THIS
COURT.  BUT THE ESSENTIAL FACTS PERTINENT TO A DECISION ON THE MERITS
OF THE TAX LIEN THEORY WERE STIPULATED IN THE DISTRICT COURT. 
MOREOVER, THE ISSUE WAS FULLY BRIEFED AND ARGUED BOTH IN THE COURT OF
APPEALS AND IN THIS COURT.  WE THEREFORE SEE NO BASIS FOR ANY INFERENCE
OF PREJUDICE IN THE CIRCUMSTANCES, AND ACCORDINGLY PROCEED TO A
DETERMINATION OF THE QUESTION. 

SECOND.  MRS. BESS ARGUES THAT IN ANY EVENT NO LIEN ATTACHED TO ANY
PROPERTY OF MR. BESS SINCE A LIEN DOES NOT ATTACH UNDER SEC. 3670
UNLESS AND UNTIL THE DELINQUENT TAXPAYER "NEGLECTS OR REFUSES TO PAY
THE SAME AFTER DEMAND."  SHE URGES THAT THE FACTS STIPULATED AS TO THE
PAYMENTS ON ACCOUNT OF 1945 TAXES MADE BY MR. BESS IN HIS LIFETIME
PROVE THAT HE DID NOT NEGLECT OR REFUSE TO PAY TAXES AFTER DEMAND. 
SINCE, IN THE VIEW WE TAKE OF THIS CASE, THE LIABILITY OF MRS. BESS IS
LIMITED TO THE CASH SURRENDER VALUE OF $3,362.53, IT SUFFICES THAT
WHATEVER MAY BE THE CASE AS TO THE 1945 TAXES THE REQUISITE NEGLECT OR
REFUSAL WAS PLAINLY ESTABLISHED AS TO THE 1946 DELINQUENCY OF
$3,789.32, FOR IT IS ADMITTED THAT MR. BESS NEITHER PAID NOR ATTEMPTED
TO PAY ANYTHING ON ACCOUNT OF THOSE TAXES. 

THIRD.  WE MUST NOW DECIDE WHETHER MR. BESS POSSESSED IN HIS
LIFETIME, WITHIN THE MEANING OF SEC. 3670, ANY "PROPERTY" OR "RIGHTS TO
PROPERTY" IN THE INSURANCE POLICIES TO WHICH THE PERFECTED LIEN FOR THE
1946 TAXES MIGHT ATTACH.  SINCE SEC. 3670 CREATES NO PROPERTY RIGHTS
BUT MERELY ATTACHES CONSEQUENCES, FEDERALLY DEFINED, TO RIGHTS CREATED
UNDER STATE LAW, FIDELITY & DEPOSIT CO. V. NEW YORK CITY HOUSING
AUTHORITY, 241 F.2D 142, 144, WE MUST LOOK FIRST TO MR. BESS' RIGHT IN
THE POLICIES AS DEFINED BY STATE LAW. 

(A)  IT IS NOT QUESTIONED THAT THE RIGHTS OF THE INSURED ARE MEASURED
BY THE POLICY CONTRACT AS ENFORCED BY NEW JERSEY LAW.  MANIFESTLY THE
INSURED COULD NOT ENJOY THE POSSESSION OF THE PROCEEDS IN HIS
LIFETIME.  HIS RIGHT TO CHANGE THE BENEFICIARY, EVEN TO DESIGNATE HIS
ESTATE TO RECEIVE THE PROCEEDS, GIVES HIM NO RIGHT TO RECEIVE THE
PROCEEDS WHILE HE LIVES.  CF. ROWEN V. COMMISSIONER, 215 F.2D 641,
644.  IT WOULD BE ANOMALOUS TO VIEW AS "PROPERTY" SUBJECT TO LIEN
PROCEEDS NEVER WITHIN THE INSURED'S REACH TO ENJOY, AND WHICH ARE
REDUCIBLE TO POSSESSION BY ANOTHER ONLY UPON THE INSURED'S DEATH WHEN
HIS RIGHT TO CHANGE THE BENEFICIARY COMES TO AN END.  WE THEREFORE DO
NOT BELIEVE THAT MR. BESS HAD "PROPERTY" OR "RIGHTS TO PROPERTY" IN THE
PROCEEDS, WITHIN THE MEANING OF SEC. 3670, TO WHICH THE FEDERAL TAX
LIEN MIGHT ATTACH.  CANNON V. NICHOLAS, 80 F.2D 934; SEE UNITED STATES
V. BURGO, 175 F.2D 196.  THIS CONCLUSION IS IN HARMONY WITH THE
DECISION IN EVERETT V. JUDSON, 228 U.S. 474, THAT THE CASH SURRENDER
VALUE OF A POLICY ON THE LIFE OF A BANKRUPT IS THE EXTENT OF THE
PROPERTY WHICH IS VESTED IN THE TRUSTEE UNDER SEC. 70A OF THE
BANKRUPTCY ACT. 

(B)  THE CASH SURRENDER VALUE OF THE POLICY, HOWEVER, STANDS ON A
DIFFERENT FOOTING.  THE INSURED HAS THE RIGHT UNDER THE POLICY CONTRACT
TO COMPEL THE INSURER TO PAY HIM THIS SUM UPON SURRENDER OF THE
POLICY.  THIS RIGHT MAY BE BORROWED AGAINST, ASSIGNED OR PLEDGED. 
SLURSZBERG V. PRUDENTIAL INS. CO., SUPRA. THUS MR. BESS "POSSESSED JUST
PRIOR TO HIS DEATH, A CHOSE IN ACTION IN THE AMOUNT STATED (I.E., THE
CASH SURRENDER VALUE) WHICH HE COULD HAVE COLLECTED FROM THE INSURANCE
COMPANIES IN ACCORDANCE WITH THE TERMS OF THE POLICIES."  243 F.2D 675,
678.  IT IS THEREFORE CLEAR THAT MR. BESS HAD "PROPERTY" OR "RIGHTS TO
PROPERTY," WITHIN THE MEANING OF SEC. 3670, IN THE CASH SURRENDER
VALUE.  UNITED STATES V. HOPER, 242 F.2D 468; KNOX V. GREAT WEST LIFE
ASSURANCE CO., 212 F.2D 784; UNITED STATES V. ROYCE SHOE CO., 137 F.
SUPP. 786; SMITH V. DONNELLY, 65 F. SUPP. 415; UNITED STATES V. AETNA
LIFE INS. CO., 46 F. SUPP. 30. 

BUT IT IS CONTENDED THAT UNDER STATE LAW THE INSURED'S PROPERTY RIGHT
REPRESENTED BY THE CASH SURRENDER VALUE IS NOT SUBJECT TO CREDITORS'
LIENS, WHETHER ASSERTED BY A PRIVATE CREDITOR, SLURSZBERG V. PRUDENTIAL
INS. CO., SUPRA, OR BY A STATE AGENCY, MIDDLESEX COUNTY WELFARE BOARD
V. MOTOLINSKY, SUPRA.  HOWEVER, ONCE IT HAS BEEN DETERMINED THAT STATE
LAW CREATES SUFFICIENT INTERESTS IN THE INSURED TO SATISFY THE
REQUIREMENTS OF SEC. 3670, STATE LAW IS INOPERATIVE TO PREVENT THE
ATTACHMENT OF LIENS CREATED BY FEDERAL STATUTES IN FAVOR OF THE UNITED
STATES.  SUCH STATE LAWS "ARE NOT LAWS FOR THE UNITED STATES  ...
UNLESS THEY HAVE BEEN MADE SUCH BY CONGRESS ITSELF."  FINK V. O'NEIL,
106 U.S. 272, 276; CF. COMMISSIONER V. TOWER, 327 U.S. 280.  (FN2)  THE
PROVISIONS OF THE INTERNAL REVENUE ACT CREATING LIENS UPON TAXPAYER'S
PROPERTY FOR UNPAID INCOME TAXES, UNLIKE SEC. 6 OF THE BANKRUPTCY ACT,
30 STAT. 548, AS AMENDED, 11 U.S.C. SEC. 24, DO NOT SPECIFICALLY
PROVIDE FOR RECOGNITION OF SUCH STATE LAWS.  THE FACT THAT IN SEC. 3691
CONGRESS PROVIDED SPECIFIC EXEMPTIONS FROM DISTRAINT IS EVIDENCE THAT
CONGRESS DID NOT INTEND TO RECOGNIZE FURTHER EXEMPTIONS WHICH WOULD
PREVENT ATTACHMENT OF LIENS UNDER SEC. 3670.  KNOX V. GREAT WEST LIFE
ASSURANCE CO., SUPRA; UNITED STATES V. HEFFRON, 158 F.2D 657; SHAMBAUGH
V. SCOFIELD, 132 F.2D 345; SMITH V. DONNELLY, SUPRA. 

FOURTH.  THE TRANSFER OF PROPERTY SUBSEQUENT TO THE ATTACHMENT OF THE
LIEN DOES NOT AFFECT THE LIEN, FOR "IT IS OF THE VERY NATURE AND
ESSENCE OF A LIEN, THAT NO MATTER INTO WHOSE HANDS THE PROPERTY GOES,
IT PASSES CUM ONERE  ...  ."  BURTON V. SMITH, 13 PET.  464, 483; SEE
MICHIGAN V. UNITED STATES, 317 U.S. 338, 340.  THE QUESTION THEREFORE
IS WHETHER THE CASH SURRENDER VALUES WITH THE LIEN ATTACHED WERE
TRANSFERRED TO MRS. BESS AS BENEFICIARY WHEN MR. BESS DIED. 

IT IS ARGUED THAT THE RIGHT TO RECIEVE THE CASH SURRENDER VALUE
EXPIRES WITH THE DEATH OF THE INSURED AND THAT THUS NO PROPERTY OF HIS
PASSES TO THE BENEFICIARY.  THE CONTENTION IS THAT THE BENEFICIARY
RECEIVES THE PROCEEDS OF THE POLICIES AS PERFORMANCE BY THE INSURANCE
COMPANY OF A SEPARATE PROMISE TO PAY UPON THE DEATH OF THE INSURED.  IT
IS SAID TO FOLLOW THAT "THERE IS NO LOGICAL ESCAPE FROM HOLDING THAT
THE 'SURRENDER VALUE' COMES TO AN END ON THE INSURED'S DEATH, IF WE
DISPOSE OF THE CONTROVERSY IN ACCORDANCE WITH THE ORDINARY RULES
GOVERNING CONTRACTS."  UNITED STATES V. BEHRENS, 230 F.2D 504, 506
507.  THIS IS TO SAY THAT THE CASH SURRENDER VALUE IS NO PART OF THE
PROCEEDS, BUT REPRESENTS MERELY THE RIGHT OF THE INSURED TO CANCEL THE
POLICY AND THEREUPON RECEIVE BACK FROM THE INSURER THE AMOUNT
ACCUMULATED FROM PREMIUMS PAID IN THE PAST AND HELD TO COVER THE RISK
TO BE INCURRED IN THE FUTURE.  (FN3)  THEREFORE IT IS SAID THAT THE
PROPERTY REPRESENTED BY THE CASH SURRENDER VALUE DISAPPEARS ON THE
INSURED'S DEATH AND NO LIEN CAN SURVIVE IN ANY PART OF THE PROCEEDS. 

BUT THE COURTS HAVE LONG RECOGNIZED THAT THE SURPLUS OF THE PAID
PREMIUMS ACCUMULATED TO MAKE UP THE CASH SURRENDER VALUE SHOULD BE
TREATED FOR SOME PURPOSES AS THOUGH IN FACT A "FUND" HELD BY THE
INSURER FOR THE BENEFIT OF THE INSURED.  JUDGE ADDISON BROWN STATED IN
IN RE MCKINNEY, 15 F. 535, 537: 

"THOUGH THIS EXCESS OF PREMIUMS PAID IS LEGALLY THE SOLE PROPERTY OF
THE COMPANY, STILL IN PRACTICAL EFFECT, THOUGH NOT IN LAW, IT IS MONEYS
OF THE ASSURED DEPOSITED WITH THE COMPANY IN ADVANCE TO MAKE UP THE
DEFICIENCY IN LATER PREMIUMS  ...  .  SO LONG AS THE POLICY REMAINS IN
FORCE THE COMPANY HAS NOT PRACTICALLY ANY BENEFICIAL INTEREST IN IT,
EXCEPT AS ITS CUSTODIAN, WITH THE OBLIGATION TO MAINTAIN IT UNIMPAIRED
AND SUITABLY INVESTED FOR THE BENEFIT OF THE INSURED.  THIS IS THE
PRACTICAL, THOUGH NOT THE LEGAL, RELATION OF THE COMPANY TO THIS
FUND." 

THIS VIEW WAS APPROVED IN HISCOCK V. MERTENS, 205 U.S. 202, 211, AND
BURLINGHAM V. CROUSE, 228 U.S. 459, 469.  SEE ALSO UNITED STATES V.
BEHRENS, SUPRA, AT 507.  THUS IN ECONOMIC REALITY THE INSURER PAYS THE
BENEFICIARY THE INSURED'S "FUND," PLUS ANOTHER AMOUNT SUFFICIENT TO
PERFORM THE INSURER'S PROMISE TO PAY THE PROCEEDS ON THE INSURED'S
DEATH.  ROWEN V. COMMISSIONER, SUPRA, AT 647.   THEREFORE WE HOLD THAT,
FOR PURPOSES OF SEC. 3670, THERE WAS A TRANSFER OF PROPERTY FROM
INSURED TO MRS. BESS, AND THAT THE LIEN ATTACHED TO THE PROPERTY BEFORE
HIS DEATH FOLLOWED THE PROPERTY INTO HER HANDS.  AFFIRMED. 

FN1  THE PROCEEDING AGAINST MRS. BESS WAS NOT BY THE SUMMARY METHOD
AUTHORIZED BY SEC. 311 OF THE INTERNAL REVENUE CODE OF 1939 BUT BY THE
ALTERNATIVE METHOD OF A PROCEEDING IN EQUITY IN THE DISTRICT COURT,
LEIGHTON V. UNITED STATES, 289 U.S. 506.  THE COURTS BELOW ERRED IN
APPLYING SEC. 311 IN THIS CASE.  AS WE HELD IN COMMISSIONER V. STERN,
ANTE, SEC. 311 IS A PURELY PROCEDURAL STATUTE AND HAS NO BEARING UPON
THE LIABILITY OF MRS. BESS.    FN2  ONCE A FEDERAL TAX LIEN ATTACHES TO
THE INSURED'S INTEREST, OF COURSE, THE GOVERNMENT IN A PROPER ACTION
JOINING THE APPROPRIATE PARTIES, CAN ENFORCE THE LIEN IN THE INSURED'S
LIFETIME AND THEREBY RECOVER THE CASH SURRENDER VALUE.  KNOX V. GREAT
WEST LIFE ASSURANCE CO., 212 F.2D 784; KYLE V. MCGUIRK, 82 F.2D 212;
SMITH V. DONNELLY, 65 F. SUPP. 415.  SEE ALSO CANNON V. NICHOLAS, 80
F.2D 934; UNITED STATES V. ROYCE SHOE CO., 137 F. SUPP. 786.  COMPARE
UNITED STATES V. METROPOLITAN LIFE INS. CO., 130 F.2D 149; UNITED
STATES V. GILMORE, 147 F. SUPP. 902. 

FN3  "IN THE LEVEL PREMIUM SYSTEM OF LIFE INSURANCE THE NET LEVEL
PREMIUM MUST BE HIGHER THAN THE MONETARY VALUE OF THE ANNUAL RISK
DURING THE EARLY POLICY YEARS, AND THE EXCESS MUST BE ACCUMULATED WITH
INTEREST TO PROVIDE FUNDS FOR PAYMENT OF CLAIMS AFTER THE AGE IS
REACHED WHERE THE VALUE OF THE ANNUAL RISK EXCEEDS THE NET LEVEL
PREMIUM IN THE ANNUAL PREMIUM BEING PAID.  IT IS THE NECESSARY
ACCUMULATION OF THESE FUNDS THAT MAKES POSSIBLE NONFORFEITURE
BENEFITS.  ON SURRENDER OF A POLICY THE INSURER, BEING RELIEVED OF THE
OBLIGATION TO PROVIDE DEATH BENEFITS DURING FUTURE YEARS WHERE THE
ANNUAL VALUE OF THE RISK EXCEEDS THE ANNUAL NET LEVEL PREMIUM, NO
LONGER NEEDS TO RETAIN THE SURRENDERING POLICYHOLDER'S CONTRIBUTIONS TO
THE FUNDS PREVIOUSLY ACCUMULATED FOR SUCH PURPOSE.  SINCE THE
SURRENDERING POLICYHOLDER MADE A CONTRIBUTION TO THESE FUNDS DURING THE
PERIOD FROM DATE OF ISSUE TO DATE OF SURRENDER, HE IS EQUITABLY
ENTITLED TO A RETURN EQUAL TO THE PRORATA SHARE OF THE FUNDS ACTUALLY
ACCUMULATED FROM PREMIUMS PAID BY HIS GROUP OF POLICYHOLDERS AND NO
LONGER NEEDED TO ASSURE SOLVENCY OF THE COMPANY FOR THE PROTECTION OF
CONTINUING POLICYHOLDERS."  KRUEGER AND WAGGONER, THE LIFE INSURANCE
POLICY CONTRACT (1953 ED.), 194.  (FOOTNOTE OMITTED). 

THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE WHITTAKER CONCUR
IN THE OPINION OF THE COURT INSOFAR AS IT HOLDS THAT THE UNITED STATES
HAD A VALID LIEN AGAINST THE CASH SURRENDER VALUE OF THE INSURANCE
POLICIES INVOLVED HERE WHICH WAS ENFORCEABLE AGAINST THE BENEFICIARY,
MRS. BESS.  THEY WOULD ALSO AFFIRM THE JUDGMENT OF THE COURT OF APPEALS
ON THE BASIS OF THE DISSENTING OPINION OF MR. JUSTICE BLACK IN
COMMISSIONER V. STERN, ANTE, P. 47. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BURTON JOINS, CONCURRING IN PART
AND DISSENTING IN PART. 

INSOFAR AS THE GOVERNMENT'S ACTION HERE RESTS ON A THEORY OF
LIABILITY IN EQUITY FOR DEBTS OF ANOTHER PERSON, I AGREE WITH THE COURT
THAT MRS. BESS' LIABILITY IS TO BE DETERMINED BY REFERENCE TO STATE LAW
AND THAT CONSEQUENTLY THE GOVERNMENT CANNOT PREVAIL ON THIS BASIS SINCE
STATE LAW HERE IMPOSES NO LIABILITY.  I THINK, HOWEVER, THAT THE
GOVERNMENT FARES NO BETTER BY ASSERTING A RIGHT TO THE CASH SURRENDER
VALUES OF THE POLICIES BY VIRTUE OF THE STATUTORY LIEN CREATED BY SEC.
3670 OF THE INTERNAL REVENUE CODE OF 1939. 

IN MY VIEW THE CORRECT ANALYSIS OF THE SURRENDER-VALUE ISSUE HAS BEEN
GIVEN IN A SECOND CIRCUIT CASE, UNITED STATES V. BEHRENS, 230 F.2D 504,
WHICH ALSO INVOLVED THE ENFORCEMENT OF FEDERAL TAX LIENS ASSERTED UNDER
SEC. 3670.  THERE JUDGE LEARNED HAND, ALTHOUGH HE FELT CONSTRAINED TO
APPLY THE PRINCIPLES OF AN EARLIER SECOND CIRCUIT CASE, ROWEN V.
COMMISSIONER,* 215 F.2D 641, AND THEREBY HELD FOR THE GOVERNMENT,
OBSERVED IN SPEAKING FOR HIMSELF AND JUDGE MEDINA: 

"CONSIDERED STRICTLY UPON THE BASIS OF THE LEGAL RIGHTS CREATED, THE
LIEN ON THE 'SURRENDER VALUES' CAME TO AN END WITH BEHREN'S DEATH.  THE
OBLIGATION OF AN INSURER IN A POLICY OF LIFE INSURANCE IS MADE UP OF A
NUMBER OF PROMISES, OF WHICH ONE IS TO PAY TO THE BENEFICIARY THE
AMOUNT OF INSURANCE - THE 'PROCEEDS' - AND ANOTHER IS TO PAY THE
'SURRENDER VALUE' TO THE INSURED UPON HIS DEMAND.  THE PERFORMANCES OF
THESE PROMISES ARE NOT ONLY SEPARATE, BUT INCONSISTENT WITH EACH OTHER:
THE PAYMENT OF THE 'SURRENDER VALUE' CANCELS THE PROMISE TO PAY THE
'PROCEEDS' AND THE PROMISE TO PAY THE 'PROCEEDS' ASSUMES THAT THE
INSURED HAS NOT DEMANDED AND RECEIVED THE 'SURRENDER VALUE.'  THE
PREMIUMS WHEN PAID BECOME THE PROPERTY OF THE INSURER AND THE INSURED
HAS NO INTEREST IN THEM, ALTHOUGH IT IS TRUE THAT IN NEW YORK, AS IN
MOST STATES, A LIFE INSURANCE COMPANY'S FINANCES ARE REGULATED BY
STATUTE IN MUCH DETAIL IN ORDER TO PROTECT POLICYHOLDERS  ...  .  IT
FOLLOWS FROM WHAT WE HAVE SAID THAT THERE IS NO LOGICAL ESCAPE FROM
HOLDING THAT THE 'SURRENDER VALUE' COMES TO AN END ON THE INSURED'S
DEATH, IF WE DISPOSE OF THE CONTROVERSY IN ACCORDANCE WITH THE ORDINARY
RULES GOVERNING CONTRACTS."  230 F.2D, AT 506-507. 

*IN THE ROWEN CASE, WHEN A MEMBER OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT, I SUBSCRIBED TO A HOLDING THAT ONE IN THE POSITION OF
THE PETITIONER IN COMMISSIONER V. STERN, ANTE, P. 39, SHOULD BE DEEMED
A "  ...  TRANSFEREE OF PROPERTY OF A TAXPAYER  ...  "  WITHIN THE
MEANING OF SEC. 311(A) OF THE INTERNAL REVENUE CODE OF 1939 INSOFAR AS
CASH SURRENDER VALUES OF LIFE INSURANCE POLICIES WERE CONCERNED. 
FURTHER REFLECTION HOWEVER HAS LED ME TO QUESTION THE ANALYSIS IN THE
ROWEN DECISION ON THIS SCORE.  IN ANY EVENT I DO NOT VIEW THAT
DECISION, WHICH WAS CONCERNED WITH THE INTERPRETATION TO BE ACCORDED
SEC. 311, AS NECESSARILY HAVING APPLICATION TO A CASE INVOLVING A
FEDERAL TAX LIEN. 

AGREEING WITH THIS REASONING, I BELIEVE THAT ALTHOUGH THE CASH
SURRENDER VALUES OF LIFE INSURANCE POLICIES WERE HERE PROPERLY
CONSIDERED PROPERTY OF A TAXPAYER TO WHICH FEDERAL TAX LIENS ATTACHED
DURING THE TAXPAYER'S LIFE, THESE VALUES CANNOT BE DEEMED TO EXIST
AFTER THE TAXPAYER'S DEATH.  IT FOLLOWS THAT THE LIEN TERMINATED AT THE
TIME OF DEATH.  THE "FUND" THEORY OF SURRENDER VALUES REFERRED TO IN
THE CASES CITED IN THE COURT'S OPINION HAS IN MY VIEW NO APPLICATION
WHEN IT COMES TO DETERMINING THE SPECIFIC REACH OF A LIEN UNDER SEC.
3670.  ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS
INSOFAR AS IT DENIED THE GOVERNMENT RELIEF WITH RESPECT TO THE PROCEEDS
OF THESE POLICIES ABOVE THEIR SURRENDER VALUES, AND REVERSE IT INSOFAR
AS IT HELD THE PETITIONER-RESPONDENT BESS LIABLE TO THE EXTENT OF THE
SURRENDER VALUES. 
..END :







UNITED STATES V. PROCTER & GAMBLE CO. 356 U.S. 677 


NO. 51.  ARGUED APRIL 28, 1958 - DECIDED JUNE 2, 1958 - REVERSED. 


FOLLOWING A FEDERAL GRAND JURY INVESTIGATION OF POSSIBLE CRIMINAL
VIOLATIONS OF THE SHERMAN ACT, IN WHICH NO INDICTMENT WAS RETURNED, THE
GOVERNMENT BROUGHT A CIVIL SUIT UNDER SEC. 4 OF THE ACT TO ENJOIN
ALLEGED VIOLATIONS OF SECS. 1 AND 2 BY APPELLEES.  THE GOVERNMENT WAS
USING THE GRAND JURY TRANSCRIPT TO PREPARE THE CIVIL CASE FOR TRIAL,
AND APPELLEES MOVED FOR DISCOVERY AND PRODUCTION OF THE TRANSCRIPT, IN
ORDER THAT THEY MIGHT HAVE THE SAME PRIVILEGE.  THE DISTRICT COURT
RULED THAT APPELLEES HAD SHOWN "GOOD CAUSE," AS REQUIRED BY RULE 34 OF
THE FEDERAL RULES OF CIVIL PROCEDURE, AND GRANTED THE MOTION.  BEING
UNWILLING TO PRODUCE THE TRANSCRIPT, THE GOVERNMENT MOVED THAT THE
ORDER BE AMENDED TO PROVIDE THAT, IF PRODUCTION OF THE TRANSCRIPT WERE
NOT MADE, THE COURT WOULD DISMISS THE COMPLAINT.  THE ORDER WAS SO
AMENDED; THE GOVERNMENT PERSISTED IN ITS REFUSAL TO PRODUCE THE
TRANSCRIPT; AND THE DISTRICT COURT DISMISSED THE COMPLAINT.  THE
GOVERNMENT APPEALED TO THIS COURT.  HELD: 

1.  THE RULE THAT A PLAINTIFF WHO HAS VOLUNTARILY DISMISSED HIS
COMPLAINT MAY NOT APPEAL FROM THE ORDER OF DISMISSAL HAS NO APPLICATION
HERE, SINCE THE GOVERNMENT'S MOTION TO AMEND THE ORIGINAL ORDER WAS
DESIGNED ONLY TO EXPEDITE REVIEW OF THAT ORDER.  PP. 680-681. 

2.  APPELLEES FAILED TO SHOW "GOOD CAUSE," AS REQUIRED BY RULE 34,
FOR THE WHOLESALE DISCOVERY AND PRODUCTION OF A TRANSCRIPT OF THE GRAND
JURY'S PROCEEDINGS, WHICH PURSUANT TO A LONG-ESTABLISHED POLICY MUST
NORMALLY BE KEPT SECRET, WHEN THEY DID NOT SHOW THAT THE CRIMINAL
PROCEDURE HAD BEEN SUBVERTED TO ELICIT EVIDENCE IN A CIVIL CASE.  PP.
681-684. 

UNITED STATES V. PROCTER & GAMBLE CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL SUIT BROUGHT UNDER SEC. 4 OF THE SHERMAN ACT, 26
STAT. 209, AS AMENDED, 15 U.S.C. SEC. 4, TO ENJOIN ALLEGED VIOLATIONS
OF SEC. 1 AND SEC. 2 OF THE ACT.  THE CIVIL SUIT WAS FILED ON THE HEELS
OF A GRAND JURY INVESTIGATION IN WHICH NO INDICTMENT WAS RETURNED.  THE
GOVERNMENT IS USING THE GRAND JURY TRANSCRIPT TO PREPARE THE CIVIL CASE
FOR TRIAL; AND APPELLEES, WHO ARE DEFENDANTS IN THAT SUIT, DESIRE THE
SAME PRIVILEGE.  THEY MOVED FOR DISCOVERY AND PRODUCTION OF THE MINUTES
UNDER THE RULES OF CIVIL PROCEDURE.  (FN1)  THE DISTRICT COURT GRANTED
THE MOTION, RULING THAT APPELLEES HAD SHOWN "GOOD CAUSE" AS REQUIRED BY
RULE 34.  (FN2)  IT RESTED ON THE GROUND THAT THE GOVERNMENT WAS USING
THE TRANSCRIPT IN PREPARATION FOR TRIAL, THAT IT WOULD BE USEFUL TO
APPELLEES IN THEIR PREPARATION, THAT ONLY IN THIS WAY COULD APPELLEES
GET THE INFORMATION.  THESE REASONS, THE COURT HELD, OUTWEIGHED THE
REASONS BEHIND THE POLICY FOR MAINTAINING SECRECY OF THE GRAND JURY
PROCEEDINGS.  19 F.R.D. 122, 128. 

THE DISTRICT COURT ENTERED ORDERS DIRECTING THE GOVERNMENT TO PRODUCE
THE TRANSCRIPT IN 30 DAYS AND TO PERMIT APPELLEES TO INSPECT AND COPY
IT.  THE GOVERNMENT, ADAMANT IN ITS REFUSAL TO OBEY, FILED A MOTION IN
THE DISTRICT COURT REQUESTING THAT THOSE ORDERS BE AMENDED TO PROVIDE
THAT, IF PRODUCTION WERE NOT MADE, THE COURT WOULD DISMISS THE
COMPLAINT.  ALTERNATIVELY, THE GOVERNMENT MOVED THE DISTRICT COURT TO
STAY THE ORDER PENDING THE FILING OF AN APPEAL AND AN APPLICATION FOR
EXTRAORDINARY WRIT.  APPELLEES DID NOT OPPOSE THE MOTION; AND THE
DISTRICT COURT ENTERED AN AMENDED ORDER PROVIDING THAT, UNLESS THE
GOVERNMENT RELEASED THE TRANSCRIPT BY AUGUST 24, 1956, "THE COURT WILL
ENTER AN ORDER DISMISSING THE COMPLAINT."  (FN3)  AS THE GOVERNMENT
PERSISTED IN ITS REFUSAL, THE DISTRICT COURT ENTERED JUDGMENT OF
DISMISSAL.  THE CASE IS HERE BY WAY OF APPEAL, 32 STAT. 823, AS
AMENDED, 62 STAT. 869, 989, 15 U.S.C. SEC. 29.  WE POSTPONED THE
QUESTION OF JURISDICTION TO ARGUMENT ON THE MERITS.  352 U.S. 997. 

FIRST.  THE ORDERS OF DISMISSAL WERE FINAL ORDERS, ENDING THE CASE. 
(FN4)  SEE UNITED STATES V. WALLACE & TIERNAN CO., 336 U.S. 793. 

APPELLEES URGE THAT THIS APPEAL MAY NOT BE MAINTAINED BECAUSE
DISMISSAL OF THE COMPLAINT WAS SOLICITED BY THE GOVERNMENT.  THEY
INVOKE THE FAMILIAR RULE THAT A PLAINTIFF WHO HAS VOLUNTARILY DISMISSED
HIS COMPLAINT MAY NOT SUE OUT A WRIT OF ERROR.  SEE EVANS V. PHILLIPS,
4 WHEAT.  73; UNITED STATES V. BABBIT, 104 U.S. 767.  THE RULE HAS NO
APPLICATION HERE.  THE GOVERNMENT AT ALL TIMES OPPOSED THE PRODUCTION
ORDERS.  IT MIGHT OF COURSE HAVE TESTED THEIR VALIDITY IN OTHER WAYS,
FOR EXAMPLE, BY THE ROUTE OF CIVIL CONTEMPT.  YET IT IS UNDERSTANDABLE
WHY A MORE CONVENTIONAL WAY OF GETTING REVIEW OF THE ADVERSE RULING
MIGHT BE SOUGHT AND ANY UNSEEMLY CONFLICT WITH THE DISTRICT COURT
AVOIDED.  WHEN THE GOVERNMENT PROPOSED DISMISSAL FOR FAILURE TO OBEY,
IT HAD LOST ON THE MERITS AND WAS ONLY SEEKING AN EXPEDITIOUS REVIEW. 
THIS CASE IS THEREFORE LIKE THOMSEN V. CAYSER, 243 U.S. 66, WHERE THE
LOSING PARTY GOT THE LOWER COURT TO DISMISS THE COMPLAINT RATHER THAN
REMAND FOR A NEW TRIAL, SO THAT IT COULD GET REVIEW IN THIS COURT.  THE
COURT, IN DENYING THE MOTION TO DISMISS, SAID: 

"THE PLAINTIFFS DID NOT CONSENT TO A JUDGMENT AGAINST THEM, BUT ONLY
THAT, IF THERE WAS TO BE SUCH A JUDGMENT, IT SHOULD BE FINAL IN FORM
INSTEAD OF INTERLOCUTORY, SO THAT THEY MIGHT COME TO THIS COURT WITHOUT
FURTHER DELAY."  ID., AT 83. 

SECOND.  ON THE MERITS WE HAVE CONCLUDED THAT "GOOD CAUSE," AS USED
IN RULE 34, WAS NOT ESTABLISHED.  THE GOVERNMENT AS A LITIGANT IS, OF
COURSE, SUBJECT TO THE RULES OF DISCOVERY.  AT THE SAME TIME, WE START
WITH A LONG-ESTABLISHED POLICY THAT MAINTAINS THE SECRECY OF THE GRAND
JURY PROCEEDINGS IN THE FEDERAL COURTS.  (FN5)  SEE UNITED STATES V.
JOHNSON, 319 U.S. 503, 513; COSTELLO V. UNITED STATES, 350 U.S. 359,
362.  THE REASONS ARE VARIED.  (FN6)  ONE IS TO ENCOURAGE ALL WITNESSES
TO STEP FORWARD AND TESTIFY FREELY WITHOUT FEAR OF RETALIATION.  THE
WITNESSES IN ANTITRUST SUITS MAY BE EMPLOYEES OR EVEN OFFICERS OF
POTENTIAL DEFENDANTS, OR THEIR CUSTOMERS, THEIR COMPETITORS, THEIR
SUPPLIERS.  THE GRAND JURY AS A PUBLIC INSTITUTION SERVING THE
COMMUNITY MIGHT SUFFER IF THOSE TESTIFYING TODAY KNEW THAT THE SECRECY
OF THEIR TESTIMONY WOULD BE LIFTED TOMORROW.  THIS "INDISPENSABLE
SECRECY OF GRAND JURY PROCEEDINGS," UNITED STATES V. JOHNSON, SUPRA, AT
513, MUST NOT BE BROKEN EXCEPT WHERE THERE IS A COMPELLING NECESSITY. 
THERE ARE INSTANCES WHEN THAT NEED WILL OUTWEIGH THE COUNTERVAILING
POLICY.  BUT THEY MUST BE SHOWN WITH PARTICULARITY. 

NO SUCH SHOWING WAS MADE HERE.  THE RELEVANCY AND USEFULNESS OF THE
TESTIMONY SOUGHT WERE, OF COURSE, SUFFICIENTLY ESTABLISHED.  IF THE
GRAND JURY TRANSCRIPT WERE MADE AVAILABLE, DISCOVERY THROUGH
DEPOSITIONS, WHICH MIGHT INVOLVE DELAY AND SUBSTANTIAL COSTS, WOULD BE
AVOIDED.  YET THESE SHOWINGS FALL SHORT OF PROOF THAT WITHOUT THE
TRANSCRIPT A DEFENSE WOULD BE GREATLY PREJUDICED OR THAT WITHOUT
REFERENCE TO IT AN INJUSTICE WOULD BE DONE.  MODERN INSTRUMENTS OF
DISCOVERY SERVE A USEFUL PURPOSE, AS WE NOTED IN HICKMAN V. TAYLOR, 329
U.S. 495.  THEY TOGETHER WITH PRETRIAL PROCEDURES MAKE A TRIAL LESS A
GAME OF BLINDMAN'S BUFF AND MORE A FAIR CONTEST WITH THE BASIC ISSUES
AND FACTS DISCLOSED TO THE FULLEST PRACTICABLE EXTENT.  ID., AT 501. 
ONLY STRONG PUBLIC POLICIES WEIGH AGAINST DISCLOSURE.  THEY WERE
PRESENT IN HICKMAN V. TAYLOR, SUPRA, FOR THERE THE INFORMATION SOUGHT
WAS IN THE TRIAL NOTES OF THE OPPOSING LAWYER.  THEY ARE PRESENT HERE
BECAUSE OF THE POLICY OF SECRECY OF GRAND JURY PROCEEDINGS.  WE DO NOT
REACH IN THIS CASE PROBLEMS CONCERNING THE USE OF THE GRAND JURY
TRANSCRIPT AT THE TRIAL TO IMPEACH A WITNESS, TO REFRESH HIS
RECOLLECTION, TO TEST HIS CREDIBILITY AND THE LIKE.  (FN7)  THOSE ARE
CASES OF PARTICULARIZED NEED WHERE THE SECRECY OF THE PROCEEDINGS IS
LIFTED DISCRETELY AND LIMITEDLY.  WE ONLY HOLD THAT NO COMPELLING
NECESSITY HAS BEEN SHOWN FOR THE WHOLESALE DISCOVERY AND PRODUCTION OF
A GRAND JURY TRANSCRIPT UNDER RULE 34.  WE HOLD THAT A MUCH MORE
PARTICULARIZED, MORE DISCRETE SHOWING OF NEED IS NECESSARY TO ESTABLISH
"GOOD CAUSE."  THE COURT MADE NO SUCH PARTICULARIZED FINDING OF NEED IN
CASE OF ANY ONE WITNESS.  IT ORDERED THAT THE ENTIRE TRANSCRIPT BE
DELIVERED OVER TO THE APPELLEES.  IT UNDOUBTEDLY WAS INFLUENCED BY THE
FACT THAT THIS TYPE OF CASE IS COMPLEX, LONG DRAWN OUT, AND EXPENSIVE
TO PROSECUTE AND DEFEND.  IT ALSO SEEMED TO HAVE BEEN INFLUENCED BY THE
FACT THAT THE PROSECUTION WAS USING CRIMINAL PROCEDURES TO ELICIT
EVIDENCE IN A CIVIL CASE.  IF THE PROSECUTION WERE USING THAT DEVICE,
IT WOULD BE FLOUTING THE POLICY OF THE LAW.  FOR IN THESE SHERMAN ACT
CASES CONGRESS HAS GUARDED AGAINST IN CAMERA PROCEEDINGS BY PROVIDING
THAT "THE TAKING OF DEPOSITIONS  ...  SHALL BE OPEN TO THE PUBLIC" AND
THAT NO ORDER EXCLUDING THE PUBLIC SHALL BE VALID.  37 STAT. 731, 15
U.S.C.  SEC. 30. 

WE CANNOT CONDEMN THE GOVERNMENT FOR ANY SUCH PRACTICE IN THIS CASE. 
THERE IS NO FINDING THAT THE GRAND JURY PROCEEDING WAS USED AS A SHORT
CUT TO GOALS OTHERWISE BARRED OR MORE DIFFICULT TO REACH.  IT IS TRUE
THAT NO INDICTMENT WAS RETUREND IN THE PRESENT CASE.  BUT THAT IS NO
REFLECTION ON THE INTEGRITY OF THE PROSECUTION.  FOR ALL WE KNOW, THE
TRAILS THAT LOOKED FRESH AT THE START FADED ALONG THE WAY.  WHAT SEEMED
AT THE BEGINNING TO BE A CASE WITH A CRIMINAL CAST APPARENTLY TOOK ON A
DIFFERENT CHARACTER AS THE EVENTS AND TRANSACTIONS WERE DISCLOSED.  THE
FACT THAT A CRIMINAL CASE FAILED DOES NOT MEAN THAT THE EVIDENCE
OBTAINED COULD NOT BE USED IN A CIVIL CASE.  IT IS ONLY WHEN THE
CRIMINAL PROCEDURE IS SUBVERTED THAT "GOOD CAUSE" FOR WHOLESALE
DISCOVERY AND PRODUCTION OF A GRAND JURY TRANSCRIPT WOULD BE
WARRANTED.  NO SUCH SHOWING WAS MADE HERE.  REVERSED. 

FN1  APPELLEE, COLGATE-PALMOLIVE CO., MOVED UNDER RULE 6(E) OF THE
RULES OF CRIMINAL PROCEDURE, NOTE 5, INFRA. 

FN2  RULE 34 PROVIDES IN PART: 

"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,  ...  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  ...  ." 

FN3  RULE 37(B)(2) PROVIDES: 

"IF ANY PARTY  ...  REFUSES TO OBEY  ...  AN ORDER MADE UNDER RULE 34
TO PRODUCE ANY DOCUMENT OR OTHER THING FOR INSPECTION, COPYING, OR
PHOTOGRAPHING  ...  , THE COURT MAY MAKE SUCH ORDERS IN REGARD TO THE
REFUSAL AS ARE JUST, AND AMONG OTHERS THE FOLLOWING: 

"(I)  AN ORDER THAT  ...  THE CONTENTS OF THE PAPER  ...  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. 

"(II)  AN ORDER REFUSING TO ALLOW THE DISOBEDIENT PARTY TO SUPPORT OR
OPPOSE DESIGNATED CLAIMS OR DEFENSES, OR PROHIBITING HIM FROM
INTRODUCING IN EVIDENCE DESIGNATED DOCUMENTS OR THINGS OR ITEMS OF
TESTIMONY  ...  . 

"(III)  AN ORDER STRIKING OUT PLEADINGS OR PARTS THEREOF, OR STAYING
FURTHER PROCEEDINGS UNTIL THE ORDER IS OBEYED, OR DISMISSING THE ACTION
OR PROCEEDING OR ANY PART THEREOF, OR RENDERING A JUDGMENT BY DEFAULT
AGAINST THE DISOBEDIENT PARTY. 

"(IV)  IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION THERETO,
AN ORDER DIRECTING THE ARREST OF ANY PARTY OR AGENT OF A PARTY FOR
DISOBEYING ANY OF SUCH ORDERS  ...  ." 

FN4  RULE 41(B) PROVIDES IN PART: 

"UNLESS THE COURT IN ITS ORDER FOR DISMISSAL OTHERWISE SPECIFIES, A
DISMISSAL UNDER THIS SUBDIVISION AND ANY DISMISSAL NOT PROVIDED FOR IN
THIS RULE, OTHER THAN A DISMISSAL FOR LACK OF JURISDICTION OR FOR
IMPROPER VENUE, OPERATES AS AN ADJUDICATION UPON THE MERITS." 

WHILE RULE 41(B) COVERS MOTIONS TO DISMISS MADE BY DEFENDANTS, THE
PORTION QUOTED SHOWS THAT IT IS NOT RESTRICTED TO THAT SITUATION. 

FN5  RULE 6(E) OF THE RULES OF CRIMINAL PROCEDURE PROVIDES IN PART: 

"DISCLOSURE OF MATTERS OCCURRING BEFORE THE GRAND JURY OTHER THAN ITS
DELIBERATIONS AND THE VOTE OF ANY JUROR MAY BE MADE TO THE ATTORNEYS
FOR THE GOVERNMENT FOR USE IN THE PERFORMANCE OF THEIR DUTIES. 
OTHERIWSE A JUROR, ATTORNEY, INTERPRETER OR STENOGRAPHTER MAY DISCLOSE
MATTERS OCCURING BEFORE THE GRAND JURY ONLY WHEN SO DIRECTED BY THE
COURT PRELIMINARILY TO OR IN CONNECTION WITH A JUDICIAL PROCEEDING OR
WHEN PERMITTED BY THE COURT AT THE REQUEST OF THE DEFENDANT UPON A
SHOWING THAT GROUNDS MAY EXIST FOR A MOTION TO DISMISS THE INDICTMENT
BECAUSE OF MATTERS OCCURING BEFORE THE GRAND JURY.  NO OBLIGATION OF
SECRECY MAY BE IMPOSED UPON ANY PERSON EXCEPT IN ACCORDANCE WITH THIS
RULE." 

FN6  IN UNITED STATES V. ROSE, 215 F.2D 617, 628-629, THOSE REASONS
WERE SUMMARIZED AS FOLLOWS: 

"(1) TO PREVENT THE ESCAPE OF THOSE WHOSE INDICTMENT MAY BE
CONTEMPLATED; (2) TO INSURE THE UTMOST FREEDOM TO THE GRAND JURY IN ITS
DELIBERATIONS, AND TO PREVENT PERSONS SUBJECT TO INDICTMENT OR THEIR
FRIENDS FROM IMPORTUNING THE GRAND JURORS; (3) TO PREVENT SUBORNATION
OF PERJURY OR TAMPERING WITH THE WITNESSES WHO MAY TESTIFY BEFORE GRAND
JURY AND LATER APPEAR AT THE TRIAL OF THOSE INDICTED BY IT; (4) TO
ENCOURAGE FREE AND UNTRAMMELED DISCLOSURES BY PERSONS WHO HAVE
INFORMATION WITH RESPECT TO THE COMMISSION OF CRIMES; (5) TO PROTECT
INNOCENT ACCUSED WHO IS EXONERATED FROM DISCLOSURE OF THE FACT THAT HE
HAS BEEN UNDER INVESTIGATION, AND FROM THE EXPENSE OF STANDING TRIAL
WHERE THERE WAS NO PROBABILITY OF GUILT." 

FN7  SEE, E.G., UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150,
234.  CF. JENCKS V. UNITED STATES, 353 U.S. 657. 

MR. JUSTICE WHITTAKER, CONCURRING. 

BELIEVING THAT APPELLEES DID NOT MAKE A SUFFICIENT SHOWING OF SUCH
EXCEPTIONAL AND PARTICULARIZED NEED FOR THE GRAND JURY MINUTES AS
JUSTIFIED WHOLESALE INVASION OF THEIR SECRECY IN THE CIRCUMSTANCES OF
THIS CASE, I CONCUR IN THE COURT'S DECISION, BUT DESIRE TO ADD A WORD. 

ALTHOUGH A "NO TRUE BILL" WAS VOTED BY THE GRAND JURY IN THIS CASE -
AND, HENCE, THE GOVERNMENT'S ATTORNEYS, AGENTS AND INVESTIGATORS WERE
THEN THROUGH WITH THE GRAND JURY PROCEEDINGS, IF THEY WERE CONDUCTED
FOR LAWFUL PURPOSES - THE GOVERNMENT ADMITS THAT IT HAS USED THE GRAND
JURY MINUTES AND TRANSCRIPTS IN ITS PREPARATION, AND THAT IT INTENDS TO
USE THEM IN ITS PROSECUTION, OF THIS CIVIL CASE.  APPELLEES SUGGEST,
PRINCIPALLY ON THE BASIS THAT NO INDICTMENT WAS PREPARED, PRESENTED TO
OR ASKED OF THE GRAND JURY, THAT THE GOVERNMENT'S PURPOSE IN CONDUCTING
THE GRAND JURY INVESTIGATION WAS TO OBTAIN, EX PARTE, DIRECT OR
DERIVATIVE EVIDENCE FOR ITS USE IN THIS CIVIL SUIT WHICH THEN WAS
CONTEMPLATED.  BUT THE DISTRICT COURT MADE NO FINDING OF SUCH A FACT. 
HOWEVER, IT IS OBVIOUS THAT SUCH COULD BE, AND PROBABLY HAS OFTEN BEEN,
THE REAL PURPOSE OF GRAND JURY INVESTIGATIONS IN LIKE CASES.  THE GRAND
JURY MINUTES AND TRANSCRIPTS ARE NOT THE PROPERTY OF THE GOVERNMENT'S
ATTORNEYS, AGENTS OR INVESTIGATORS, NOR ARE THEY ENTITLED TO POSSESSION
OF THEM IN SUCH A CASE.  INSTEAD THOSE DOCUMENTS ARE RECORDS OF THE
COURT.  AND IT SEEMS CLEAR THAT WHERE, AS HERE, A "NO TRUE BILL" HAS
BEEN VOTED, THEIR SECRECY, WHICH THE LAW WISELY PROVIDES, MAY BE AS
FULLY VIOLATED BY DISCLOSURE TO AND USE BY THE GOVERNMENT COUNSEL,
AGENTS AND INVESTIGATORS AS BY THE DEFENDANTS' COUNSEL IN SUCH A CIVIL
SUIT.   IN ORDER TO MAINTAIN THE SECRECY OF GRAND JURY PROCEEDINGS; TO
ELIMINATE THE TEMPTATION TO CONDUCT GRAND JURY INVESTIGATIONS AS A
MEANS OF EX PARTE PROCUREMENT OF DIRECT OR DERIVATIVE EVIDENCE FOR USE
IN A CONTEMPLATED CIVIL SUIT; AND TO ELIMINATE, SO FAR AS POSSIBLE,
FUNDAMENTAL UNFAIRNESS AND INEQUALITY BY PERMITTING THE GOVERNMENT'S
ATTORNEYS, AGENTS AND INVESTIGATORS TO POSSESS AND USE SUCH MATERIALS
WHILE DENYING LIKE POSSESSION AND USE BY ATTORNEYS FOR THE DEFENDANTS
IN SUCH A CASE, I WOULD ADOPT A RULE REQUIRING THAT THE GRAND JURY
MINUTES AND TRANSCRIPTS AND ALL COPIES THEREOF AND MEMORANDA MADE
THEREFROM, IN CASES WHERE A "NO TRUE BILL" HAS BEEN VOTED, BE PROMPTLY
UPON RETURN SEALED AND IMPOUNDED WITH THE CLERK OF THE COURT, SUBJECT
TO INSPECTION BY ANY PARTY TO SUCH CIVIL SUIT ONLY UPON ORDER OF THE
COURT MADE, AFTER NOTICE AND HEARING, UPON A SHOWING OF SUCH
EXCEPTIONAL AND PARTICULARIZED NEED AS IS NECESSARY TO ESTABLISH "GOOD
CAUSE," IN THE CIRCUMSTANCES, UNDER RULE 34.  SURELY SUCH AN ORDER MAY
STILL BE MADE BY THE TRIAL COURT IN THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

THE COURT REVERSES THE JUDGMENT BELOW WITHOUT SO MUCH AS ADVERTISING
TO WHAT SEEMS TO ME THE REAL AND ONLY QUESTION IN THE CASE:  DID THE
DISTRICT COURT ABUSE ITS DISCRETION BY ORDERING THE GOVERNMENT TO
FURNISH THE APPELLEES WITH THE TRANSCRIPT OF THE GRAND JURY
PROCEEDINGS? 

I DO NOT BELIEVE THIS QUESTION CAN BE AVOIDED OR OBSCURED BY CASTING
THE ISSUE IN TERMS OF WHETHER THE APPELLEES MADE AN ADEQUATE SHOWING OF
"GOOD CAUSE" UNDER RULE 34 FOR THE DISCOVERY WHICH THEY SOUGHT AND
GAINED.  WHAT CONSTITUTES "GOOD CAUSE" UNDER RULE 34 NECESSARILY TURNS
ON THE FACTS AND CIRCUMSTANCES OF EACH PARTICULAR CASE, AND IN THE LAST
ANALYSIS RESTS WITHIN THE SOUND DISCRETION OF THE TRIAL COURT.  4
MOORE'S FEDERAL PRACTICE (2D ED. 1950) SEC. 34.08. 

VIEWING THE MATTER IN THIS LIGHT, I DO NOT THINK IT CAN BE SAID THAT
THE LOWER COURT WAS GUILTY OF AN ABUSE OF DISCRETION.  A CURSORY
STATEMENT OF THE SETTING IN WHICH APPELLEES WERE ACCORDED ACCESS TO THE
GRAND JURY TRANSCRIPT SHOULD SUFFICE TO MAKE THIS CLEAR.  BY ANY
STANDARDS THIS ANTITRUST LITIGATION WAS OF GREAT MAGNITUDE AND
COMPLEXITY.  IN 1956, WHEN DISCOVERY WAS ORDERED, THE LITIGATION HAD
BEEN PENDING FOR OVER THREE YEARS, AND DESPITE THE ASSIDUOUS EFFORTS OF
THE COURT TO BRING THE ISSUES WITHIN MANAGEABLE COMPASS, THE CASE SEEMS
STILL TO HAVE BEEN FAR REMOVED FROM A POSTURE WHERE TRIAL WAS IN
SIGHT.  THE DISCOVERY ORDER WAS THE SUBJECT OF ELABORATE BRIEFING AND
ORAL ARGUMENT, DURING THE COURSE OF WHICH THE COURT FOUND ITSELF
HANDICAPPED BY THE REFUSAL OF THE GOVERNMENT TO INDICATE THE EXACT USE
IT HAD MADE, AND INTENDED TO MAKE, OF THE GRAND JURY TRANSCRIPT IN
CONNECTION WITH ITS PREPARATION AND TRIAL OF THE CASE.  (FN1) 

IN GRANTING DISCOVERY THE DISTRICT COURT WROTE A REASONED OPINION IN
WHICH IT FOUND:  (1) THAT THE GOVERNMENT HAD FILED ITS COMPLAINT IN
THIS CIVIL SUIT FOLLOWING AN EIGHTEEN-MONTH GRAND JURY INVESTIGATION,
WHICH HAD ENDED SOME FOUR YEARS BEFORE THE DISCOVERY ORDER WITHOUT AN
INDICTMENT BEING RETURNED; (FN2) (2) THAT THE GOVERNMENT HAD MADE
CONTINUING USE OF THE GRAND JURY TRANSCRIPT IN ITS PREPARATION OF THE
CIVIL CASE; (3) THAT "THE ENDS OF JUSTICE" REQUIRED THAT APPELLEES BE
GIVEN RECIPROCAL ACCESS TO SUCH TRANSCRIPT IN AID OF THE PREPARATION OF
THEIR DEFENSE; (FN3) AND (4) THAT DISCLOSURE WOULD NOT IN THE
CIRCUMSTANCES VIOLATE THE TRADITIONAL REASONS FOR SAFEGUARDING THE
SECRECY OF GRAND JURY PROCEEDINGS.  (FN4) 

THE FOLLOWING QUOTATION FROM THE DISTRICT COURT'S OPINION REVEALS ITS
ALERT AND SENSITIVE CONCERN OVER UNNECESSARY DISCLOSURE OF GRAND JURY
PROCEEDINGS: 

"I REALIZE THERE IS A STRONG CAVEAT AGAINST THE NEEDLESS INTRUSION
UPON THE INDISPENSABLE SECRECY OF GRAND JURY PROCEEDINGS.  THE REASONS
THEREFOR WERE INDELIBLY IMPRESSED UPON ME WHEN I SERVED AS ASSISTANT
PROSECUTOR OF MY HOME COUNTY FOR TEN YEARS WHERE I SPENT THE GREATER
PART OF THE TIME PRESENTING CASES TO THE GRAND JURY.  I REALIZE FURTHER
THAT A STRONG AND POSITIVE SHOWING SHOULD BE REQUIRED OF PERSONS
SEEKING TO BREAK THE SEAL OF SECRECY, WHICH NEVER SHOULD BE DONE EXCEPT
IN EXTREME INSTANCES TO PREVENT CLEAR INJUSTICE OR AN ABUSE OF JUDICIAL
PROCESSES.  WHICH POLICY SHOULD BE SERVED HERE TO BRING ABOUT JUSTICE -
THE POLICY REQUIRING SECRECY, OR THE POLICY PERMITTING DISCLOSURE FOR
DISCOVERY PURPOSES ONLY IN THE INTEREST OF JUSTICE?  I BELIEVE THE
REQUIREMENT OF SECRECY IN THIS CASE CAN BE SAFELY WAIVED AND THE
MINUTES OF THE GRAND JURY DIVULGED WITHIN THE LIMITS PRESCRIBED BY THE
LAW, AND THAT THE FAILURE TO DO SO WOULD BE AN ABUSE OF DISCRETION AND
NOT IN THE FURTHERANCE OF JUSTICE.  UNDER RULE 6(E) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE OUR COURTS HAVE, BY WAY OF INTERPRETATION,
EXTENDED THEIR JURISDICTION SO AS TO REMOVE 'THE VEIL OF SECRECY'
AROUND GRAND JURY PROCEEDINGS WHERE, IN THE COURT'S DISCRETION, THE
FURTHERANCE OF JUSTICE REQUIRES IT.  IF IT CAN BE DONE ON THE CRIMINAL
SIDE, I CAN SEE NO COMPELLING REASON WHY IT CANNOT BE SAFELY DONE ON
THE CIVIL SIDE IN THIS CASE.  I WOULD NOT GRANT THESE MOTIONS IF I
THOUGHT THEY WERE PREJUDICIAL TO THE PUBLIC INTEREST, USELESS OR
UNNECESSARY, WOULD NOT REVEAL THE INFORMATION SOUGHT, OR DEFENDANTS
ALREADY POSSESSED ALL THE NECESSARY INFORMATION OR COULD OBTAIN IT BY
PURSUING A DIFFERENT REMEDY." 

THE FINDINGS OF THE DISTRICT COURT AS TO WHAT THE PROCEDURAL
SITUATION IN THIS COMPLICATED CASE FAIRLY REQUIRED, MADE AS THEY WERE
BY A JUDGE WHO HAD BEEN IN CHARGE OF THIS CASE FROM THE BEGINNING,
SHOULD NOT BE DISTURBED BY THIS COURT ANY MORE LIGHTLY THAN FINDINGS
MADE AFTER A TRIAL ON THE MERITS.  CF. UNITED STATES V. YELLOW CAB CO.,
338 U.S. 338; UNITED STATES V. OREGON STATE MEDICAL SOCIETY, 343 U.S.
326. 

THE COURT RECOGNIZES THAT HAD THE GOVERNMENT'S GRAND JURY
INVESTIGATION BEEN INSTITUTED SOLELY IN AID OF A CIVIL SUIT - THAT IS
WITHOUT ANY THOUGHT OF OBTAINING AN INDICTMENT - THE APPELLEES WOULD
THEN HAVE BEEN ENTITLED TO SEE THE ENTIRE GRAND JURY TRANSCRIPT. 
ALTHOUGH IT MAY BE TRUE THAT NO FINDING HAS BEEN MADE HERE OF SUCH
MISUSE OF THE GRAND JURY PROCESS, I AM UNABLE TO SEE WHY THE CASE WHERE
A GRAND JURY INVESTIGATION HAS ABORTED AND THE GOVERNMENT THEREAFTER
USES THE TRANSCRIPT SOLELY IN AID OF ITS CIVIL CASE SHOULD BE TREATED
DIFFERENTLY.  THE ONLY DISTINCTION RELATES TO THE GOVERNMENT'S MOTIVE
IN INSTITUTING THE GRAND JURY PROCEEDINGS.  FOR IN BOTH INSTANCES THE
EFFECT ON THE LITIGATION IS PRECISELY THE SAME, AND IN BOTH INSTANCES
THE GOVERNMENT'S CONDUCT DISRESPECTS THE POLICY UNDERLYING 37 STAT.
731, 15 U.S. C. SEC. 30, (FN5) REQUIRING THE TESTIMONY OF WITNESSES IN
GOVERNMENT SHERMAN ACT EQUITY SUITS TO BE TAKEN IN PUBLIC.  IN NEITHER
TYPE OF CASE SHOULD THE COURT UNDERTAKE TO LAY DOWN A FIXED RULE
CONCERNING DISCLOSURE OF GRAND JURY TRANSCRIPTS, BUT INSTEAD SHOULD
LEAVE THE MATTER TO THE SOUND DISCRETION OF THE TRIAL JUDGE, TO BE
DEALT WITH BY HIM IN LIGHT OF THE PARTICULAR CIRCUMSTANCES OF EACH
CASE. 

I FULLY SUBSCRIBE TO THE VIEW THAT THE STRONG PUBLIC POLICY OF
PRESERVING THE SECRECY OF GRAND JURY PROCEEDINGS SHOULD PREVENT THE
GENERAL DISCLOSURE OF A GRAND JURY TRANSCRIPT EXCEPT IN THE RAREST
CASES.  BUT THE INFLEXIBLE RULE ANNOUNCED TODAY, WHICH ALLOWS THAT
POLICY TO BE OVERCOME ONLY IN INSTANCES WHERE IT CAN BE SHOWN THAT THE
GOVERNMENT HAS "SUBVERTED" THE GRAND JURY PROCESS IN THE MANNER
SUGGESTED BY THE COURT, SEEMS TO ME AN UNWISE AND UNNECESSARY CURBING
OF TRIAL JUDGES IN THE EFFICIENT AND FAIR HANDLING OF THE DIFFICULT
PROBLEMS PRESENTED BY A UNIQUE TYPE OF LITIGATION.  SEE THE PRETTYMAN
REPORT ON PROCEDURE IN ANTI-TRUST AND OTHER PROTRACTED CASES, 13 F.R.D.
62, WHICH HAS BEEN ADOPTED BY THE JUDICIAL CONFERENCE OF THE UNITED
STATES.  THIS IS PARTICULARLY SO IN CASES LIKE THE ONE BEFORE US, WHERE
THE GRAND JURY'S FUNCTIONS HAVE LONG SINCE ENDED.  SEE UNITED STATES V.
SOCONY-VACUUM OIL CO., 310 U.S. 150, 233-234; 8 WIGMORE, EVIDENCE (3D
ED. 1940), SEC. 2362.  HERE AS ELSEWHERE IN THE REALM OF DISCRETIONARY
POWER APPELLATE REVIEW SHOULD BE THE SAFEGUARD AGAINST ABUSE IN
PARTICULAR INSTANCES, RATHER THAN THE A PRIORI IMPOSITION OF RIGID
RESTRICTIONS UPON TRIAL JUDGES WHICH LEAVE THEM POWERLESS TO ACT IN
APPROPRIATE CASES.  UNDER THE FACTS SHOWN BY THIS RECORD, I AM UNABLE
TO SAY THAT THE DISTRICT COURT ABUSED ITS DISCRETION IN ORDERING THE
GRAND JURY TRANSCRIPT TO BE MADE AVAILABLE TO THE APPELLEES. 

FN1  THE FOLLOWING IS TAKEN FROM THE DISTRICT COURT'S OPINION: 

"  ...  DURING THE ORAL ARGUMENT OF THESE MOTIONS THE COURT ASKED MR.
MCDOWELL, PLAINTIFF'S ATTORNEY, THE FOLLOWING QUESTIONS: 

"'MR. MCDOWELL, DO YOU OBJECT TO SUBMITTING A DETAILED AFFIDAVIT
STATING EXACTLY (A) WHAT USE, IF ANY, PLAINTIFF HAS MADE IN THE PAST OF
THE GRAND JURY TRANSCRIPTS WHILE PREPARING FOR THE TRIAL OF THIS CASE;
(B) WHAT USE, IF ANY, PLAINTIFF INTENDS TO MAKE OF THE TRANSCRIPTS
DURING ITS FUTURE PREPARATION FOR THE TRIAL; (C) WHAT USE, IF ANY,
PLAINTIFF INTENDS TO MAKE OF THE TRANSCRIPTS DURING THE TRIAL.' 

"HE WISHED TO CONFER WITH HIS SUPERIORS IN THE DEPARTMENT OF JUSTICE
BEFORE DECIDING IF HE WOULD ANSWER THE QUESTIONS.  THE COURT AWAITED
CANDID ANSWERS - BUT IN VAIN.  FOR MR. MCDOWELL WROTE: 

"'THE QUESTIONS WHICH YOU PUT TO ME AT THE HEARING ON DECEMBER 12TH
RELATING TO THE USE BY THE GOVERNMENT OF TRANSCRIPTS OF GRAND JURY
TESTIMONY HAVE BEEN GIVEN SERIOUS CONSIDERATION WITHIN THE DEPARTMENT
OF JUSTICE.  I AM INSTRUCTED RESPECTFULLY TO INFORM YOU THAT WE DO NOT
WISH TO ADD TO THE STATEMENT WHICH I MADE AT THE HEARING.' 

"HIS 'STATEMENT' AT THE HEARING DID NOT ANSWER THE QUESTIONS. 
BECAUSE THE PLAINTIFF ARBITRARILY HAS REFUSED TO ANSWER THE COURT'S
QUESTIONS RELATING TO ANY USE OF THESE TRANSCRIPTS, THE COURT HAS BEEN
DENIED HELPFUL INFORMATION AND AS A RESULT HAS BEEN FORCED TO SEEK ITS
ANSWERS ELSEWHERE." 

FN2  IN RESPONSE TO QUESTIONS PUT AT ORAL ARGUMENT, GOVERNMENT
COUNSEL INFORMED US THAT THE GOVERNMENT HAD NOT REQUESTED THE GRAND
JURY TO RETURN AN INDICTMENT. 

FN3  IN THE APPENDIX TO ITS OPINION, WHICH REVIEWS SOME OF THE PRIOR
PROCEEDINGS, THE DISTRICT COURT REFERS TO THE FOLLOWING COMMENT MADE BY
IT AT AN EARLIER STAGE OF THE CASE: 

"'ONE OF MY CONCERNS IS THAT SINCE PLAINTIFF HAS BEEN PREPARING ITS
CASE FOR PROBABLY THREE YEARS, OR LONGER, HOW LONG MUST WE WAIT FOR
DEFENDANTS TO PREPARE THEIR CASE?  THE SOONER DEFENDANTS ARE INFORMED
OF PLAINTIFF'S FACTUAL CONTENTIONS, THE SOONER DEFENSE PREPARATION CAN
COMMENCE - AND NOT BEFORE, OBVIOUSLY.'" 

FN4  SEE UNITED STATES V. ROSE, 215 F.2D 617, 628-629, QUOTED FROM IN
FOOTNOTE 6 OF THE COURT'S OPINION. 

FN5  "IN THE TAKING OF DEPOSITIONS OF WITNESSES FOR USE IN ANY SUIT
IN EQUITY BROUGHT BY THE UNITED STATES UNDER THE SHERMAN ACT, AND IN
THE HEARINGS BEFORE ANY EXAMINER OR SPECIAL MASTER APPOINTED TO TAKE
TESTIMONY THEREIN, THE PROCEEDINGS SHALL BE OPEN TO THE PUBLIC AS
FREELY AS ARE TRIALS IN OPEN COURT; AND NO ORDER EXCLUDING THE PUBLIC
FROM ATTENDANCE ON ANY SUCH PROCEEDINGS SHALL BE VALID OR
ENFORCEABLE." 
..END :



BONETTI V. ROGERS 356 U.S. 691 


NO. 94.  ARGUED APRIL 7, 1958 - DECIDED JUNE 2, 1958 - 99 U.S. APP. D.C.
386, 240 F.2D 624, REVERSED. 


PETITIONER, AN ALIEN, WAS ADMITTED TO THE UNITED STATES FOR PERMANENT
RESIDENCE IN 1923.  HE WAS A MEMBER OF THE COMMUNIST PARTY FROM 1932
THROUGH 1936.  HE THEN LEFT THE PARTY AND NEVER REJOINED IT.  IN 1937
HE WENT ABROAD, ABANDONING ALL RIGHTS OF RESIDENCE IN THE UNITED
STATES.  IN 1938 HE WAS READMITTED TO THE UNITED STATES "FOR PERMANENT
RESIDENCE AS A QUOTA IMMIGRANT."  HE HAS SINCE RESIDED IN THE UNITED
STATES EXCEPT FOR A ONE-DAY VISIT TO MEXICO IN 1939.  IN 1951,
PROCEEDINGS WERE INSTITUTED TO DEPORT HIM UNDER SECS. 1 AND 4(A) OF THE
ANARCHIST ACT OF OCTOBER 16, 1918, AS AMENDED BY SEC. 22 OF THE
INTERNAL SECURITY ACT OF 1950, AS AN ALIEN WHO "WAS AT THE TIME OF
ENTERING THE UNITED STATES, OR HAS BEEN AT ANY TIME THEREAFTER," A
MEMBER OF THE COMMUNIST PARTY.  HELD:  SINCE PETITIONER'S CLAIM OF
RIGHT TO REMAIN IN THE UNITED STATES IS BASED UPON HIS ENTRY IN 1938
AND HE WAS NOT THEN AND HAS NOT SINCE BEEN A MEMBER OF THE COMMUNIST
PARTY, HE IS NOT DEPORTABLE UNDER SECS. 1 AND 4(A).  PP. 692-700. 

(A)  SINCE PETITIONER CLAIMS NO RIGHT UNDER HIS ENTRY IN 1923 AND THE
GOVERNMENT DOES NOT BY THE DEPORTATION PROCEEDING SEEK TO ANNUL ANY
RIGHT ACQUIRED UNDER THAT ENTRY, THE DATE OF HIS ENTRY IN 1938
CONSTITUTED HIS "TIME OF ENTERING THE UNITED STATES," WITHIN THE
MEANING OF SEC. 4(A).  PP. 696-697. 

(B)  UNITED STATES EX REL. VOLPE V. SMITH, 289 U.S. 422,
DISTINGUISHED.  PP. 697-698. 

BONETTI V. ROGERS, ATTORNEY GENERAL, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THIS IS A DEPORTATION CASE.  IT PRESENTS A NARROW AND VEXING PROBLEM
OF STATUTORY CONSTRUCTION.  THE PRINCIPAL QUESTION HERE IS WHICH, IF
LESS THAN ALL, OF SEVERAL ENTRIES INTO THIS COUNTRY BY THE ALIEN
PETITIONER WAS "THE TIME OF ENTERING THE UNITED STATES," WITHIN THE
MEANING OF SEC. 4(A) OF THE ANARCHIST ACT OF OCTOBER 16, 1918, (FN1) AS
AMENDED BY SEC. 22 OF THE INTERNAL SECURITY ACT OF 1950.  64 STAT.
1008. 

THE FACTS ARE CLEAR AND UNDISPUTED.  PETITIONER, AN ALIEN WHO WAS
BORN IN FRANCE OF ITALIAN PARENTAGE, WAS ADMITTED TO THE UNITED STATES
FOR PERMANENT RESIDENCE ON NOVEMBER 1, 1923, AT THE AGE OF 15.  HE
BECAME A MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES AT LOS
ANGELES IN 1932 AND REMAINED A MEMBER TO THE END OF 1936, WHEN HE
VOLUNTARILY CEASED PAYING DUES AND LEFT THE PARTY.  HE NEVER REJOINED
IT.  ON JUNE 28, 1937, HE DEPARTED THE UNITED STATES - ABANDONING ALL
RIGHTS OF RESIDENCE HERE - AND WENT TO SPAIN TO FIGHT WITH THE SPANISH
REPUBLICAN ARMY.  (FN2)  HE FOUGHT IN THAT ARMY FOR ONE YEAR, WAS
WOUNDED IN ACTION AND SUFFERED THE LOSS OF HIS LEFT FOOT.  ON SEPTEMBER
19, 1938, HE CAME TO THE UNITED STATES AS A NEW OR "QUOTA IMMIGRANT,"
AND APPLIED FOR ADMISSION FOR PERMANENT RESIDENCE.  HE WAS DETAINED AT
ELLIS ISLAND.  A HEARING WAS HELD BY A BOARD OF SPECIAL INQUIRY ON THE
ISSUE OF HIS ADMISSIBILITY.  AT THAT HEARING HE FREELY ADMITTED THAT HE
HAD BEEN A MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES AT LOS
ANGELES, CALIFORNIA, FROM 1932 TO 1936, AND HAD VOLUNTARILY LEFT THE
UNITED STATES ON JUNE 28, 1937, TO GO TO SPAIN AND FIGHT IN THE SPANISH
REPUBLICAN ARMY.  THE BOARD ORDERED HIM EXCLUDED, BUT ITS ORDER WAS
REVERSED ON AN ADMINISTRATIVE APPEAL, AND ON OCTOBER 8, 1938, HE WAS
ADMITTED TO THE UNITED STATES "FOR PERMANENT RESIDENCE AS A QUOTA
IMMIGRANT."  HE HAS SINCE CONTINUOUSLY RESIDED IN THE UNITED STATES
(CALIFORNIA), EXCEPT FOR A ONE-DAY VISIT TO TIJUANA, MEXICO, IN
SEPTEMBER 1939.  "AT THE TIME OF ENTERING THE UNITED STATES" ON OCTOBER
8, 1938, HE WAS NOT, AND HAS NOT SINCE BEEN, A MEMBER OF THE COMMUNIST
PARTY. 

IN OCTOBER 1951, PROCEEDINGS WERE INSTITUTED TO DEPORT HIM UNDER
SECS. 1 AND 4(A) OF THE ANARCHIST ACT OF OCTOBER 16, 1918, AS AMENDED
BY SEC. 22 OF THE INTERNAL SECURITY ACT OF 1950, AS AN "ALIEN WHO HAD
BEEN A MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES AFTER ENTRY
INTO THE UNITED STATES."  AFTER A HEARING, DISCLOSING THE FACTS ABOVE
RECITED, THE HEARING OFFICER ORDERED HIM DEPORTED, AND THE BOARD OF
IMMIGRATION APPEALS AFFIRMED. 

PETITIONER THEN BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA AGAINST RESPONDENT, PRAYING THAT THE
ORDER OF DEPORTATION BE SET ASIDE.  RESPONDENT MOVED FOR SUMMARY
JUDGMENT.  THE DISTRICT JUDGE SUSTAINED THE MOTION AND DISMISSED THE
COMPLAINT.  ON APPEAL THE COURT OF APPEALS, FINDING THAT AFTER
PETITIONER'S FIRST ADMISSION FOR PERMANENT RESIDENCE ON NOVEMBER 1,
1923, HE ADMITTEDLY HAD BEEN A MEMBER OF THE COMMUNIST PARTY OF THE
UNITED STATES FROM 1932 THROUGH 1936, AFFIRMED THE JUDGMENT.  99 U.S.
APP. D.C. 386, 240 F.2D 624.  WE GRANTED CERTIORARI.  355 U.S. 901. 

THE PARTIES AGREE THAT PETITIONER'S PAST COMMUNIST PARTY MEMBERSHIP
DID NOT MAKE HIM EXCLUDABLE "AT THE TIME OF ENTERING THE UNITED STATES"
ON OCTOBER 8, 1938, NOR WHEN, AFTER HIS ONE-DAY VISIT TO MEXICO, HE RE
ENTERED IN SEPTEMBER 1939.  (FN3) 

BY SEC. 22 OF THE INTERNAL SECURITY ACT OF 1950, (FN5) DEALS WITH THE
SUBJECT OF EXCLUSION OF ALIENS FROM ADMISSION AND PROVIDES, IN
PERTINENT PART, AS FOLLOWS: 

"(SEC. 1)  THAT ANY ALIEN WHO IS A MEMBER OF ANY ONE OF THE FOLLOWING
CLASSES SHALL BE EXCLUDED FROM ADMISSION INTO THE UNITED STATES: 

"(1)  ...  . 

"(2)  ALIENS WHO, AT ANY TIME, SHALL BE OR SHALL HAVE BEEN, MEMBERS
OF ANY OF THE FOLLOWING CLASSES: 

"(A)  ...  . 

"(B)  ...  . 

"(C)  ALIENS WHO ARE MEMBERS OF  ...  THE COMMUNIST PARTY OF THE
UNITED STATES  ...  . 

  *         *         *         *         * 

"(H)  ...  ." 

SEC. 22 OF THE INTERNAL SECURITY ACT OF 1950, DEALS WITH THE SUBJECT OF
DEPORTATION AND, IN PERTINENT PART, PROVIDES: 

"ANY ALIEN WHO WAS AT THE TIME OF ENTERING THE UNITED STATES, OR HAS
BEEN AT ANY TIME THEREAFTER ...  A MEMBER OF ANY ONE OF THE CLASSES OF
ALIENS ENUMERATED IN SECTION 1(2) OF THIS ACT, SHALL, UPON THE WARRANT
OF THE ATTORNEY GENERAL, BE TAKEN INTO CUSTODY AND DEPORTED IN THE
MANNER PROVIDED IN THE IMMIGRATION ACT OF FEBRUARY 5, 1917.  THE
PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO THE CLASSES OF ALIENS
MENTIONED IN THIS ACT, IRRESPECTIVE OF THE TIME OF THEIR ENTRY INTO THE
UNITED STATES."  (FN6) 

THE SENSE OF THE TWO AMENDED SECTIONS, AS APPLIED TO THIS CASE, IS
THIS:  ANY ALIEN WHO WAS AT THE TIME OF ENTERING THE UNITED STATES, OR
HAS BEEN AT ANY TIME THEREAFTER, A MEMBER OF THE COMMUNIST PARTY OF THE
UNITED STATES SHALL, UPON THE WARRANT OF THE ATTORNEY GENERAL, BE TAKEN
INTO CUSTODY AND DEPORTED IN THE MANNER PROVIDED IN THE IMMIGRATION ACT
OF FEBRUARY 5, 1917. 

PETITIONER CONTENDS THAT IT WAS HIS ENTRY OF OCTOBER 8, 1938, MADE
AFTER THE ADMINISTRATIVE ADJUDICATION OF THAT DATE THAT HE WAS
ADMISSIBLE "AS A QUOTA IMMIGRANT FOR PERMANENT RESIDENCE" - NOT HIS
ENTRY OF NOVEMBER 1, 1923 - THAT CONSTITUTES "THE TIME OF ENTERING THE
UNITED STATES," WITHIN THE MEANING OF SEC. 4(A); AND INASMUCH AS HE WAS
NOT THEN, AND HAS NOT SINCE BEEN, A MEMBER OF THE COMMUNIST PARTY HE IS
NOT DEPORTABLE UNDER THAT SECTION.  RESPONDENT, ON THE OTHER HAND,
CONTENDS THAT SEC. 4(A) APPLIES TO ANY "ENTRY INTO THE UNITED STATES"
BY PETITIONER, INCLUDING THAT OF NOVEMBER 1, 1923, AND THAT INASMUCH AS
HE WAS A MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES FROM 1932
TO 1936 BEFORE DEPARTING FROM, AND ABANDONING ALL RIGHTS TO RESIDE IN,
THE UNITED STATES ON JUNE 28, 1937, HE IS DEPORTABLE UNDER THAT SECTION
AS AN ALIEN WHO HAS BEEN, AFTER ENTERING THE UNITED STATES, A MEMBER OF
THE COMMUNIST PARTY. 

TO DECIDE THE QUESTION PRESENTED IT IS NECESSARY TO EXAMINE AND
CONSTRUE THE STATUTES INVOLVED.  IT SEEMS PLAIN THAT THE REFERENCE IN
SEC. 4(A) TO THE "CLASSES OF ALIENS ENUMERATED IN SEC. 1(2)"
INCORPORATES ONLY THE CLASSES ENUMERATED IN SUBSECTIONS (A) THROUGH
(H), (FN7) AND THAT THE ONLY ONE OF THOSE CLASSES WHICH IS APPLICABLE
HERE IS CLASS "(C)," NAMELY, "ALIENS WHO ARE MEMBERS OF  ... THE
COMMUNIST PARTY OF THE UNITED STATES."  THERE BEING NO QUESTION ABOUT
THE FACT THAT PETITIONER WAS NOT A MEMBER OF THE COMMUNIST PARTY AT THE
TIME OF ENTERING THE UNITED STATES ON OCTOBER 8, 1938, OR AT ANY TIME
THEREAFTER, THE QUESTION IS WHETHER THAT ENTRY - AS AFFECTED, IF AT
ALL, BY HIS RE-ENTRY AS A RETURNING RESIDENT ALIEN AFTER HIS ONE-DAY
TRIP TO MEXICO IN SEPTEMBER 1939 - OR THE ONE OF NOVEMBER 1, 1923,
CONSTITUTED "THE TIME OF HIS ENTERING THE UNITED STATES," WITHIN THE
MEANING OF SEC. 4(A), AS AMENDED BY SEC. 22 OF THE INTERNAL SECURITY
ACT OF 1950.  IF IT WAS THE LATTER HE IS DEPORTABLE, BUT IF THE FORMER
HE IS NOT. 

IT IS OBVIOUS THAT CONGRESS IN ENACTING THESE STATUTES DID NOT
CONTEMPLATE THE NOVEL FACTUAL SITUATION THAT CONFRONTS US, AND THAT
THESE STATUTES ARE, TO SAY THE LEAST, AMBIGUOUS UPON THE QUESTION WE
MUST NOW DECIDE.  OUR STUDY OF THE PROBLEM, IN THE LIGHT OF THE FACTS
OF THIS CASE, HAS BROUGHT US TO THESE CONCLUSIONS:  THE FIRST PHRASE OF
SEC. 4(A) - "ANY ALIEN WHO WAS AT THE TIME OF ENTERING THE UNITED
STATES" - NECESSARILY REFERS TO "THE TIME" OF PETITIONER'S ADJUDICATED
LAWFUL ADMISSION, AS AFFECTED, IF AT ALL, BY HIS RE-ENTRY AS A
RETURNING RESIDENT ALIEN AFTER HIS ONE-DAY TRIP TO MEXICO IN SEPTEMBER
1939, UNDER WHICH HE CLAIMS THE RIGHT TO REMAIN.  THE NEXT PHRASE - "OR
HAS BEEN AT ANY TIME THEREAFTER" - NECESSARILY REFERS TO ALL TIMES
SUBSEQUENT TO SUCH LAWFUL ADMISSION.  THUS THE TWO PHRASES, WHEN READ
TOGETHER, REFER TO THE PARTICULAR TIME THE ALIEN WAS LAWFULLY PERMITTED
TO MAKE THE ENTRY UNDER WHICH HE CLAIMS THE STATUS AND RIGHT OF LAWFUL
PRESENCE THAT IS SOUGHT TO BE ANNULLED BY HIS DEPORTATION, AND TO ANY
TIME SUBSEQUENT THERETO.  INASMUCH AS PETITIONER CLAIMS NO RIGHT OF
LAWFUL PRESENCE UNDER HIS ENTRY OF NOVEMBER 1, 1923, AND RESPONDENT
DOES NOT BY THE DEPORTATION ORDER HERE SEEK TO ANNUL ANY RIGHT OF
PRESENCE ACQUIRED UNDER THAT ENTRY, WE MUST HOLD THAT PETITIONER'S
ENTRY OF OCTOBER 8, 1938 - AS AFFECTED, IF AT ALL, BY HIS RETURNING
FROM MEXICO IN SEPTEMBER 1939 - CONSTITUTED "THE TIME OF ENTERING THE
UNITED STATES," WITHIN THE MEANING OF SEC. 4(A).  SINCE PETITIONER WAS
NOT A MEMBER OF THE COMMUNIST PARTY "AT THE TIME OF ENTERING THE UNITED
STATES" ON OCTOBER 8, 1938, AND HAS NOT BEEN A MEMBER "AT ANY TIME
THEREAFTER," INCLUDING, OF COURSE, THE TIME OF HIS RETURNING ENTRY FROM
MEXICO IN SEPTEMBER 1939, HE IS NOT DEPORTABLE UNDER SEC. 4(A), AS
AMENDED BY SEC. 22 OF THE INTERNAL SECURITY ACT OF 1950. 

IN A DIFFERENT CONTEXT THIS COURT HAS SAID THAT THE WORD ENTRY
"INCLUDES ANY COMING OF AN ALIEN FROM A FOREIGN COUNTRY INTO THE UNITED
STATES WHETHER SUCH COMING BE THE FIRST OR ANY SUBSEQUENT ONE."  UNITED
STATES EX REL. VOLPE V. SMITH, 289 U.S. 422, 425.  (FN8)  WHILE THAT
HOLDING IS QUITE CORRECT, IT IS NOT HERE APPOSITE OR CONTROLLING, FOR
THE QUESTION HERE IS NOT WHETHER PETITIONER'S COMING TO THE UNITED
STATES IN 1923 CONSTITUTED AN ENTRY.  ADMITTEDLY IT DID.  RATHER, OUR
QUESTION IS WHETHER IT WAS THAT ENTRY, OR THE ADJUDICATED LAWFUL ENTRY
OF OCTOBER 8, 1938, AS AFFECTED, IF AT ALL, BY PETITIONER'S RE-ENTRY AS
A RETURNING RESIDENT ALIEN IN SEPTEMBER 1939, WHICH CONSTITUTED THE
TIME OF PETITIONER'S ENTRY UPON WHICH HIS PRESENT STATUS DEPENDS.  IN
THE NOVEL CIRCUMSTANCES HERE WE THINK IT EVIDENT THAT IT COULD NOT BE
HIS ENTRY OF NOVEMBER 1, 1923, SINCE PETITIONER HAD ABANDONED ALL
RIGHTS OF RESIDENCE UNDER THAT ENTRY.  VOLPE DID NOT INVOLVE ANY
QUESTION OF ABANDONMENT. 

OF COURSE, IF PETITIONER HAD BECOME A MEMBER OF THE COMMUNIST PARTY
AFTER THE ENTRY OF OCTOBER 8, 1938, OR THE RE-ENTRY OF SEPTEMBER 1939,
HE WOULD HAVE BEEN DEPORTABLE UNDER SEC. 4(A).  GALVAN V. PRESS, 347
U.S. 522.  BUT IT IS ADMITTED THAT HE WAS NOT A MEMBER OF THAT PARTY AT
THOSE TIMES OR "AT ANY TIME THEREAFTER."  LIKEWISE, IF HE HAD APPLIED
FOR ENTRY AFTER JUNE 27, 1952, HE WOULD BE EXCLUDABLE UNDER SEC.
212(A)(28)(C)(IV) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952.  66
STAT. 182, 8 U.S.C. SEC. 1182(A)(28)(C)(IV). 

THE GOVERNMENT ARGUES THAT THE CONSTRUCTION WHICH WE ADOPT WOULD
ENABLE A RESIDENT ALIEN, WHO AFTER LAWFULLY ENTERING THE UNITED STATES
FOR PERMANENT RESIDENCE BECAME A MEMBER OF THE COMMUNIST PARTY, TO
AVOID DEPORTATION FOR THAT CAUSE SIMPLY BY QUITTING THE PARTY AND
THEREAFTER STEPPING ACROSS THE BORDER AND RETURNING.  WHILE A RESIDENT
ALIEN WHO LEAVES THE COUNTRY FOR ANY PERIOD, HOWEVER BRIEF, DOES MAKE A
NEW ENTRY ON HIS RETURN, HE IS THEN SUBJECT NEVERTHELESS TO ALL CURRENT
EXCLUSIONARY LAWS, ONE OF WHICH, AT PRESENT, EXCLUDES FROM ADMISSION
ANY ALIEN WHO HAS EVER BEEN A MEMBER OF THE COMMUNIST PARTY.  SECTION
212(A)(28)(C)(IV) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952,
SUPRA.  IF HE ENTERS WHEN EXCLUDABLE, HE IS DEPORTABLE, EVEN THOUGH HE
WOULD NOT HAVE BEEN SUBJECT TO DEPORTATION IF HE HAD NOT LEFT THE
COUNTRY.  (FN9)  HENCE, OUR CONSTRUCTION OF THE STATUTES HERE INVOLVED
DOES NOT ENABLE AN ALIEN RESIDENT TO EVADE THE DEPORTATION LAWS BY
LEAVING THE COUNTRY AND RETURNING AFTER A BRIEF PERIOD, FOR IF AT THE
TIME OF HIS RETURN HE IS WITHIN AN EXCLUDED CLASS HE WOULD BE
EXCLUDABLE, OR, IF HE NEVERTHELESS ENTERS, HE WOULD BE DEPORTABLE.  IT
IS ADMITTED THAT WHEN PETITIONER RETURNED FROM MEXICO AFTER HIS ONE-DAY
TRIP IN SEPTEMBER 1939 HE WAS NOT EXCLUDABLE UNDER THEN CURRENT
EXCLUSIONARY LAWS.  THAT ENTRY, BEING LAWFUL, CAN ONLY SUPPORT OUR
CONCLUSION IN THIS CASE. 

THOUGH SECS. 1 AND 4(A) OF THE ANARCHIST ACT OF 1918, AS AMENDED BY
THE INTERNAL SECURITY ACT OF 1950, ARE QUITE AMBIGUOUS IN THEIR
APPLICATION TO THE QUESTION HERE PRESENTED, WE BELIEVE THAT OUR
INTERPRETATION OF THEM IS THE ONLY FAIR AND REASONABLE CONSTRUCTION
THAT THEIR CLOUDY PROVISIONS WILL PERMIT UNDER THE RARE AND NOVEL FACTS
OF THIS CASE.  "WHEN CONGRESS LEAVES TO THE JUDICIARY THE TASK OF
IMPUTING TO CONGRESS AN UNDECLARED WILL, THE AMBIGUITY SHOULD BE
RESOLVED IN FAVOR OF LENITY.  AND THIS NOT OUT OF ANY SENTIMENTAL
CONSIDERATION, OR FOR WANT OF SYMPATHY WITH THE PURPOSE OF CONGRESS IN
PROSCRIBING EVIL OR ANTISOCIAL CONDUCT.  IT MAY FAIRLY BE SAID TO BE A
PRESUPPOSITION OF OUR LAW TO RESOLVE DOUBTS  ...  AGAINST THE
IMPOSITION OF A HARSHER PUNISHMENT."  BELL V. UNITED STATES, 349 U.S.
81, 83.  AND WE CANNOT "ASSUME THAT CONGRESS MEANT TO TRENCH ON AN
ALIEN'S FREEDOM BEYOND THAT WHICH IS REQUIRED BY THE NARROWEST OF
SEVERAL POSSIBLE MEANINGS OF THE WORDS USED."  FONG HAW TAN V. PHELAN,
333 U.S. 6, 10.  CF. BARBER V. GONZALES, 347 U.S. 637, 642-643;
DELGADILLO V. CARMICHAEL, 332 U.S. 388, 391.    AS APPLIED TO THE
CIRCUMSTANCES OF THIS CASE, WE HOLD THAT THE PHRASE IN SEC. 4(A), "ANY
ALIEN WHO WAS AT THE TIME OF ENTERING THE UNITED STATES, OR HAS BEEN AT
ANY TIME THEREAFTER," REFERS TO THE TIME THE ALIEN WAS LAWFULLY
PERMITTED TO MAKE THE ENTRY AND RE-ENTRY UNDER WHICH HE ACQUIRED THE
STATUS AND RIGHT OF LAWFUL PRESENCE THAT IS SOUGHT TO BE ANNULLED BY
HIS DEPORTATION.  PETITIONER'S ENTRY OF OCTOBER 8, 1938, AS AFFECTED,
IF AT ALL, BY HIS SUBSEQUENT ENTRY IN SEPTEMBER 1939 AS A RETURNING
RESIDENT ALIEN, CONSTITUTED "THE TIME OF ENTERING THE UNITED STATES"
WITHIN THE MEANING OF SEC. 4(A).  INASMUCH AS PETITIONER WAS NOT ON
OCTOBER 8, 1938, OR AT ANY TIME THEREAFTER - INCLUDING SEPTEMBER 1939 -
A MEMBER OF THE COMMUNIST PARTY, HE IS NOT DEPORTABLE UNDER SECS. 1 AND
4(A) OF THE ANARCHIST ACT OF OCTOBER 16, 1918, AS AMENDED BY SEC. 22 OF
THE INTERNAL SECURITY ACT OF 1950, AND THE JUDGMENT MUST BE REVERSED
FOR THAT REASON.  REVERSED. 

FN1  40 STAT. 1012, AS AMENDED, 41 STAT. 1008, 54 STAT. 673, 8 U.S.C.
SEC. 137. 

FN2  HE STATED THAT HE DID SO BECAUSE HE FELT THAT FRANCO WAS A TOOL
OF MUSSOLINI AND HITLER, AND IF THE ROME-BERLIN AXIS WAS NOT STOPPED
"THEY WOULD GO ON FROM COUNTRY TO COUNTRY UNTIL THE WORLD WAR WOULD
START." 

FN3  THE STATUTORY PROVISION FOR EXCLUSION FROM ADMISSION SOLELY BY
REASON OF MEMBERSHIP IN THE COMMUNIST PARTY WAS FIRST ENACTED IN THE
INTERNAL SECURITY ACT OF 1950 (64 STAT. 1006), AND THEREFORE,
PETITIONER WAS NOT EXCLUDABLE FROM ADMISSION, ON THE GROUND OF PAST
MEMBERSHIP IN THE COMMUNIST PARTY, AT THE TIME HE ENTERED THE UNITED
STATES ON OCTOBER 8, 1938, OR AT THE TIME HE RE-ENTERED, AFTER A ONE
DAY VISIT TO TIJUANA, MEXICO, IN SEPTEMBER 1939. 

FN4  SEE NOTE 1. 

FN5  64 STAT. 1008. 

FN6  ALTHOUGH BOTH SECS. 1 AND 4(A) WERE REPEALED BY SEC. 403(A)(16)
OF THE IMMIGRATION AND NATIONALITY ACT OF JUNE 27, 1952 (66 STAT. 163,
279), THOSE SECTIONS NEVERTHELESS APPLY TO THIS CASE UNDER THE SAVING
CLAUSE (SEC. 405(A)) OF THE 1952 ACT, SINCE THE ORDER OF DEPORTATION
INVOLVED HERE WAS ISSUED PRIOR TO THE EFFECTIVE DATE OF THE 1952 ACT. 

FN7  CF. BERREBI V. CROSSMAN, 208 F.2D 498, AND KLIG V. BROWNELL
(DISSENTING OPINION), 100 U.S. APP. D.C. 294, 299-300, 244 F.2D 742,
747-748 (CERTIORARI GRANTED, 355 U.S. 809; JUDGMENT OF THE COURT OF
APPEALS VACATED AND CASE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS
TO DISMISS THE CAUSE AS MOOT, SUB NOM. KLIG V. ROGERS, 355 U.S. 605). 

FN8  CF. LEWIS V. FRICK, 233 U.S. 291; UNITED STATES EX REL. CLAUSSEN
V. DAY, 279 U.S. 398; UNITED STATES EX REL STAPF V. CORSI, 287 U.S.
129. 

FN9  SHAUGHNESSY V. UNITED STATES EX REL. MEZEI, 345 U.S. 206; UNITED
STATES EX REL.  VOLPE V. SMITH, 289 U.S. 422; UNITED STATES EX REL.
STAPF V. CORSI, 287 U.S. 129; UNITED STATES EX REL. CLAUSSEN V. DAY,
279 U.S. 398; LAPINA V. WILLIAMS, 232 U.S. 78; LEWIS V. FRICK, 233 U.S.
291; CHAE CHAN PING V. UNITED STATES, 130 U.S. 581. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
HARLAN CONCUR, DISSENTING. 

PETITIONER ENTERED THE UNITED STATES IN 1923, BEING ADMITTED FOR
PERMANENT RESIDENCE AT THAT TIME.   FROM 1932 TO 1936 HE WAS A MEMBER
OF THE COMMUNIST PARTY.  IN 1937 HE VOLUNTARILY LEFT THE COUNTRY TO
FIGHT IN THE SPANISH CIVIL WAR.  A YEAR LATER, IN 1938, HE RETURNED AND
AGAIN WAS ADMITTED.  AT THAT TIME OUR LAW DID NOT EXCLUDE MEMBERS OR
PAST MEMBERS OF THE COMMUNIST PARTY. 

IN 1950 THE CONGRESS PASSED THE INTERNAL SECURITY ACT, SEC. 22 OF
WHICH REQUIRED THE ATTORNEY GENERAL TO DEPORT ALL ALIENS WHO WERE
COMMUNIST PARTY MEMBERS "AT THE TIME OF ENTERING THE UNITED STATES, OR
...  AT ANY TIME THEREAFTER."  64 STAT. 1008.  AS EARLY AS THE ALIEN
REGISTRATION ACT OF 1940, 54 STAT. 670, 673, THE CONGRESS HAD PROVIDED,
AS EXPLAINED BY THE SENATE COMMITTEE ON THE JUDICIARY, "THAT ANY ALIEN
WHO HAS BEEN A MEMBER OF A PROSCRIBED CLASS AT ANY TIME AFTER HIS
ADMISSION TO THE UNITED STATES (FOR NO MATTER HOW SHORT A TIME OR HOW
FAR IN THE PAST SO LONG AS IT WAS AFTER THE DATE OF ENTRY), SHALL BE
DEPORTED."  S. REP. NO. 1796, 76TH CONG., 3D SESS. 3.  IN ENACTING SEC.
22 OF THE ACT OF 1950, THE CONGRESS STATED, "THE PURPOSE  ...  IS TO
STRENGTHEN THE PROVISIONS OF EXISTING LAW WITH RESPECT TO THE EXCLUSION
AND DEPORTATION OF SUBVERSIVE ALIENS."  S. REP. NO. 2230, 81ST CONG.,
2D SESS. 5.  THIS REPORT FURTHER DECLARED, "THE CONCLUSION IS
INESCAPABLE THAT  ...  THE COMMUNIST MOVEMENT IN THE UNITED STATES IS
AN ALIEN MOVEMENT  ...  .  THE SEVERANCE OF THIS CONNECTION AND THE
DESTRUCTION OF THE LIFE LINE OF COMMUNISM BECOMES  ...  AN IMMIGRATION
PROBLEM."  ID., AT 16.  ADDITIONAL CLASSES OF ALIENS WERE MADE
DEPORTABLE "AT ANY TIME AFTER ENTRY, WHETHER OR NOT MEMBERSHIP IN THE
CLASS HAS CEASED."  ID., AT 23.  THE CONSTRUCTION OF THE SECTION AS
APPLYING TO MEMBERSHIP AFTER ANY ENTRY - INCLUDING THE FIRST AS WELL AS
THE LAST - SEEMS TO BE DEMANDED BY THIS LEGISLATIVE HISTORY.  SEE ALSO
84 CONG. REC. 10448-10449 (REMARKS OF REPRESENTATIVE HOBBS), 86 CONG.
REC. 8343 (REMARKS OF SENATOR CONNALLY).  THAT THE ACT APPLIES
RETROACTIVELY TO ALL ALIENS REGARDLESS OF THE TIME OF THEIR ENTRY IS
ADMITTED.  SEE GALVAN V. PRESS, 347 U.S. 522 (1954).  THE SIMPLE TEST,
THEREFORE, IS WHETHER THE ALIEN WAS AT ANY TIME A MEMBER OF THE
COMMUNIST PARTY UPON OR AFTER COMING TO THE UNITED STATES, REGARDLESS
OF HOW MANY ENTRIES HE MAY HAVE MADE.  PETITIONER WAS A PARTY MEMBER
SUBSEQUENT TO HIS ARRIVAL IN 1923, SO THE LANGUAGE "AT ANY TIME
THEREAFTER" CLEARLY MAKES THE SECTION APPLICABLE TO HIM. 

BUT TODAY THE COURT, IN EFFECT, WRITES THE WORD "LAST" INTO THE
STATUTE.  THE RESULT IS THAT AN ALIEN WHO HAS BEEN A MEMBER OF THE
COMMUNIST PARTY IN THE UNITED STATES IS DEPORTABLE ONLY IF "AT THE TIME
OF LAST ENTERING THE UNITED STATES, OR  ...  AT ANY TIME THEREAFTER,"
HE WAS A MEMBER.  THIS CRIPPLES THE EFFECTIVENESS OF THE ACT,
PERMITTING ALIENS TO ESCAPE DEPORTATION SOLELY BECAUSE THEY HAPPEN TO
LEAVE AND THEN RE-ENTER THE COUNTRY.  IT IS CONCEDED BY THE COURT THAT
HAD PETITIONER REMAINED HERE HE WOULD HAVE BEEN DEPORTABLE.  HENCE, THE
CONSTRUCTION OF THE COURT RESTRICTS THE LITERAL SENSE OF THE 1950 ACT
TO ALIENS WHO HAVE CONTINUOUSLY REMAINED IN THE UNITED STATES. 

THIS INNOVATION IS CONTRARY TO DECADES OF UNINTERRUPTED
ADMINISTRATIVE INTERPRETATION AND PRACTICE, AND ALSO TO PRIOR CASES OF
THIS COURT.  THE IMMIGRATION AND NATURALIZATION SERVICE HAS ALWAYS
CONSTRUED "ENTRY" AS MEANING ANY COMING OF AN ALIEN FROM A FOREIGN
COUNTRY TO THE UNITED STATES.  (FN1)  THE CONGRESS RECOGNIZED THIS
INTERPRETATION WHEN CONSIDERING THE IMMIGRATION AND NATIONALITY ACT OF
1952.  H.R. REP. NO. 1365, 82D CONG., 2D SESS. 32; S. REP. NO. 1137,
82D CONG., 2D SESS. 4.  (FN2)  THE COURT, HOWEVER, SIDE-STEPS THIS
AUTHORITY BY SAYING THAT "THE NOVEL CIRCUMSTANCES HERE" PRECLUDE OUR
CONSIDERATION OF THE 1923 ENTRY BECAUSE "PETITIONER HAD ABANDONED ALL
RIGHTS OF RESIDENCE UNDER THAT ENTRY."  BUT THAT IS NOT THE QUESTION. 
TRUE, PETITIONER MAKES NO CLAIM UNDER THE 1923 ENTRY, AND THE 1938
ADMISSION IS NOT DEPENDENT ON THE FORMER BUT WAS A REGULAR "QUOTA
IMMIGRANT" ENTRY.  NEVERTHELESS, PETITIONER IS AN ALIEN WHO ENTERED AND
"THEREAFTER" WAS A MEMBER OF THE COMMUNIST PARTY WHILE IN THE UNITED
STATES.  ANY NUMBER OF ADDITIONAL ENTRIES - IN 1938 OR OTHERWISE -
CANNOT WIPE OUT THAT FACT. 

IN UNITED STATES EX REL. VOLPE V. SMITH, 289 U.S. 422 (1933), THE
QUESTION WAS WHETHER AN ALIEN'S CRIMINAL CONVICTION HAD OCCURRED "PRIOR
TO ENTRY" WITHIN THE MEANING OF SEC. 19 OF THE IMMIGRATION ACT OF
1917.  39 STAT. 889.  THE ALIEN CONTENDED THAT "ENTRY" SHOULD BE
CONSTRUED AS MEANING, IN EFFECT, "FIRST ENTRY," BUT THE ARGUMENT WAS
REJECTED.  THE COURT SAID, "AN EXAMINATION OF THE IMMIGRATION ACT OF
1917, WE THINK, REVEALS NOTHING SUFFICIENT TO INDICATE THAT CONGRESS
DID NOT INTEND THE WORD 'ENTRY'  ...  SHOULD HAVE ITS ORDINARY
MEANING."  289 U.S., AT 425.  SEE ALSO UNITED STATES EX REL. CLAUSSEN
V. DAY, 279 U.S. 398 (1929).  PETITIONER HERE MAKES THE CONVERSE
ARGUMENT THAT THE WORD "ENTERING" SHOULD BE MODIFIED TO READ "LAST
ENTERING."  I WOULD NOT SO AMEND THE STATUTE IN DISREGARD OF THE LONG
AND UNIFORM JUDICIAL, LEGISLATIVE, AND ADMINISTRATIVE HISTORY WHEREBY
"ENTRY" HAS ACQUIRED A DEFINITIVE, TECHNICAL GLOSS, TO WIT, ITS
ORDINARY MEANING AND NOTHING MORE OR LESS.  THEREFORE, I WOULD AFFIRM
THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  FOR A COMPREHENSIVE REVIEW OF ADMINISTRATIVE ACTION WITH REGARD
TO RE-ENTRY OF RESIDENT ALIENS, SEE LOWENSTEIN, THE ALIEN AND THE
IMMIGRATION LAW, 206-213. 

FN2  ALTHOUGH THE ACT OF 1952 IS NOT DIRECTLY INVOLVED HERE, IT IS
SIGNIFICANT THAT THE MEANING OF "ENTRY" WAS CODIFIED IN SEC. 101(A)(13)
AS "ANY COMING OF AN ALIEN INTO THE UNITED STATES, FROM A FOREIGN PORT
OR PLACE OR FROM AN OUTLYING POSSESSION  ...  ."  66 STAT. 167, 8
U.S.C. SEC. 1101(A)(13). 
..END :









HILL V. UNITED STATES 356 U.S. 704 


NO. 287, MISC.  DECIDED JUNE 2, 1958 - REPORTED BELOW:  SEE 101 U.S.
APP. D.C. 313, 248 F.2D 635. 


CERTIORARI AND LEAVE TO PROCEED IN FORMA PAUPERIS GRANTED; JUDGMENT
VACATED AND CASE REMANDED FOR CONSIDERATION IN LIGHT OF CASES CITED. 

HILL V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS VACATED AND
THE CASE IS REMANDED TO THAT COURT FOR CONSIDERATION IN LIGHT OF ELLIS
V. UNITED STATES, 356 U.S. 674, DECIDED MAY 26, 1958, AND ALSO IN LIGHT
OF FARLEY V. UNITED STATES, 354 U.S. 521; AND JOHNSON V. UNITED STATES,
352 U.S. 565. 
..END :







EUBANKS V. LOUISIANA 356 U.S. 584 


NO. 550.  ARGUED APRIL 30-MAY 1, 1958 - DECIDED MAY 26, 1958 - 232 LA.
289, 94 SO. 2D 262, REVERSED AND CAUSE REMANDED. 


PETITIONER, A NEGRO, WAS INDICTED BY AN ALL-WHITE GRAND JURY IN
LOUISIANA FOR THE MURDER OF A WHITE WOMAN.  HE MOVED TO QUASH THE
INDICTMENT ON THE GROUND THAT NEGROES HAD BEEN SYSTEMATICALLY EXCLUDED
FROM GRAND JURIES IN THE PARISH IN WHICH HE WAS INDICTED, INCLUDING THE
GRAND JURY WHICH RETURNED THE INDICTMENT AGAINST HIM.  AFTER A HEARING,
HIS MOTION WAS OVERRULED, AND HE WAS TRIED, CONVICTED AND SENTENCED TO
DEATH.  THE STATE SUPREME COURT AFFIRMED.  HELD:  THE CONSISTENT
EXCLUSION OF NEGROES FROM GRAND JURIES SHOWN BY THE RECORD IN THIS CASE
DENIED PETITIONER THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE
FOURTEENTH AMENDMENT, AND THE JUDGMENT IS REVERSED.  PP. 585-589. 

(A)  WHEN A JURY SELECTION PLAN, WHATEVER IT IS, OPERATES IN SUCH A
WAY AS ALWAYS TO RESULT IN THE COMPLETE AND LONG-CONTINUED EXCLUSION OF
ANY REPRESENTATIVE AT ALL FROM A LARGE GROUP OF NEGROES, OR ANY OTHER
RACIAL GROUP, INDICTMENTS AND VERDICTS RETURNED AGAINST THEM BY JURIES
THUS SELECTED CANNOT STAND.  PATTON V. MISSISSIPPI, 332 U.S. 463.  P.
587. 

(B)  THE UNIFORM AND LONG-CONTINUED EXCLUSION OF NEGROES FROM GRAND
JURIES SHOWN BY THE RECORD IN THIS CASE CANNOT BE ATTRIBUTED TO CHANCE,
TO ACCIDENT, OR TO THE FACT THAT NO SUFFICIENTLY QUALIFIED NEGROES HAVE
EVER BEEN INCLUDED IN THE LISTS SUBMITTED TO THE VARIOUS LOCAL JUDGES
FOR SELECTION AS GRAND JURORS; AND IT SEEMS CLEAR THAT NEGROES HAVE
BEEN CONSISTENTLY BARRED FROM JURY SERVICE BECAUSE OF THEIR RACE.  PP.
585-588. 

(C)  LOCAL TRADITION CANNOT JUSTIFY FAILURE TO COMPLY WITH THE
CONSTITUTIONAL MANDATE REQUIRING EQUAL PROTECTION OF THE LAWS.  P.
588. 

EUBANKS V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN AN UNBROKEN LINE OF CASES STRETCHING BACK ALMOST 80 YEARS THIS
COURT HAS HELD THAT A CRIMINAL DEFENDANT IS DENIED THE EQUAL PROTECTION
OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT IF HE IS INDICTED BY
A GRAND JURY OR TRIED BY A PETIT JURY FROM WHICH MEMBERS OF HIS RACE
HAVE BEEN EXCLUDED BECAUSE OF THEIR RACE.  (FN1)  OUR ONLY CONCERN HERE
IS WITH THE APPLICATION OF THIS ESTABLISHED PRINCIPLE TO THE FACTS
DISCLOSED BY THE RECORD NOW BEFORE US. 

THE PETITIONER, A YOUNG NEGRO, WAS INDICTED BY AN ALL-WHITE GRAND
JURY IN THE PARISH OF ORLEANS, LOUISIANA, FOR MURDER OF A WHITE WOMAN. 
HE MOVED TO QUASH THE INDICTMENT ON THE GROUND THAT NEGROES HAD BEEN
SYSTEMATICALLY EXCLUDED FROM GRAND JURIES IN THE PARISH, INCLUDING THE
GRAND JURY WHICH RETURNED THE INDICTMENT AGAINST HIM.  AFTER A HEARING,
HIS MOTION WAS OVERRULED, AND HE WAS TRIED, CONVICTED AND SENTENCED TO
DEATH.  THE LOUISIANA SUPREME COURT AFFIRMED, HOLDING THAT THE RECORD
DISCLOSED NO DISCRIMINATORY EXCLUSION OF NEGROES FROM HIS GRAND JURY,
232 LA. 289, 94 SO. 2D 262.  WE GRANTED CERTIORARI, 355 U.S. 812. 

THE METHOD BY WHICH GRAND JURIES ARE SELECTED IN THE PARISH IS NOT
CONTROVERTED.  A JURY COMMISSION IS REQUIRED TO SELECT, "IMPARTIALLY,
FROM THE CITIZENS OF THE PARISH OF ORLEANS HAVING THE QUALIFICATIONS
REQUISITE TO REGISTER AS VOTERS, THE NAMES OF NOT LESS THAN SEVEN
HUNDRED AND FIFTY PERSONS COMPETENT  ...  TO SERVE AS JURORS."  (FN2)
TWICE EACH YEAR THE COMMISSIONERS DRAW THE NAMES OF 75 PERSONS FROM
THIS GROUP.  THE LIST OF 75 IS THEN SUBMITTED TO ONE OF THE SIX JUDGES
OF THE LOCAL CRIMINAL COURT WHO, IN ROTATION, CHOOSE A NEW GRAND JURY
OF 12 EVERY SIX MONTHS.  (FN3)  OBVIOUSLY THE JUDGES HAVE BROAD
DISCRETION IN SELECTING FROM THE LIST PROVIDED BY THE COMMISSION. 
STATE V. DORSEY, 207 LA. 928, 22 SO.  2D 273.  SEVERAL OF THEM
INTERVIEW A SUBSTANTIAL NUMBER OF PROSPECTIVE JURORS BEFORE MAKING
THEIR CHOICE.  OTHERS, INCLUDING THE JUDGE WHO CHOSE THE JURY THAT
INDICTED PETITIONER, TESTIFIED THAT THEY USUALLY SELECTED ON THE BASIS
OF PERSONAL KNOWLEDGE OR REPUTATION IN THE COMMUNITY.  PETITIONER DOES
NOT CHALLENGE THIS SYSTEM OF CHOOSING GRAND JURORS, AS SUCH, BUT HE
DOES CONTEND THAT IT HAS BEEN ADMINISTERED BY THE LOCAL JUDGES SO THAT
MEMBERS OF THE NEGRO RACE HAVE BEEN SYSTEMATICALLY EXCLUDED FROM GRAND
JURY SERVICE. 

ALTHOUGH NEGROES COMPRISE ABOUT ONE-THIRD OF THE POPULATION OF THE
PARISH, THE UNCONTRADICTED TESTIMONY OF VARIOUS WITNESSES ESTABLISHED
THAT ONLY ONE NEGRO HAD BEEN PICKED FOR GRAND JURY DUTY WITHIN MEMORY. 
AND THIS LONE EXCEPTION APPARENTLY RESULTED FROM THE MISTAKEN
IMPRESSION THAT THE JUROR WAS WHITE.  FROM 1936, WHEN THE COMMISSION
FIRST BEGAN TO INCLUDE NEGROES IN THE POOL OF POTENTIAL JURORS, UNTIL
1954, WHEN PETITIONER WAS INDICTED, 36 GRAND JURIES WERE SELECTED IN
THE PARISH.  SIX OR MORE NEGROES WERE INCLUDED IN EACH LIST SUBMITTED
TO THE LOCAL JUDGES.  YET OUT OF THE 432 JURORS SELECTED ONLY THE
SINGLE NEGRO WAS CHOSEN.  UNDISPUTED TESTIMONY ALSO PROVED THAT A
SUBSTANTIAL NUMBER OF THE LARGE NEGRO POPULATION IN THE PARISH WERE
EDUCATED, REGISTERED TO VOTE AND POSSESSED THE QUALIFICATIONS REQUIRED
FOR JURY SERVICE, ALL OF WHICH IS EMPHASIZED BY THE FACT THAT SINCE
1936 THE COMMISSION HAS REGULARLY SELECTED NEGROES FOR THE GRAND JURY
PANEL.  INDEED, NEGROES HAVE SERVED ON THE FEDERAL GRAND JURY IN THE
PARISH FOR MANY YEARS. 

IN PATTON V. MISSISSIPPI, 332 U.S. 463, 469, THIS COURT DECLARED, IN
A UNANIMOUS OPINION, THAT "WHEN A JURY SELECTION PLAN, WHATEVER IT IS,
OPERATES IN SUCH WAY AS ALWAYS TO RESULT IN THE COMPLETE AND LONG
CONTINUED EXCLUSION OF ANY REPRESENTATIVE AT ALL FROM A LARGE GROUP OF
NEGROES, OR ANY OTHER RACIAL GROUP, INDICTMENTS AND VERDICTS RETURNED
AGAINST THEM BY JURIES THUS SELECTED CANNOT STAND."  THIS IS
ESSENTIALLY THE SITUATION HERE.  TRUE, THE JUDGES NOW SERVING ON THE
LOCAL COURT TESTIFIED GENERALLY THAT THEY HAD NOT DISCRIMINATED AGAINST
NEGROES IN CHOOSING GRAND JURIES, AND HAD ONLY TRIED TO PICK THE BEST
AVAILABLE JURORS.  BUT AS CHIEF JUSTICE HUGHES SAID FOR THE COURT IN
NORRIS V. ALABAMA, 294 U.S. 587, 598, "IF, IN THE PRESENCE OF SUCH
TESTIMONY AS DEFENDANT ADDUCED, THE MERE GENERAL ASSERTIONS BY
OFFICIALS OF THEIR PERFORMANCE OF DUTY WERE TO BE ACCEPTED AS AN
ADEQUATE JUSTIFICATION FOR THE COMPLETE EXCLUSION OF NEGROES FROM JURY
SERVICE, THE EQUAL PROTECTION CLAUSE - ADOPTED WITH SPECIAL REFERENCE
TO THEIR PROTECTION - WOULD BE BUT A VAIN AND ILLUSORY REQUIREMENT." 
COMPARE REECE V. GEORGIA, 350 U.S. 85, 88; HERNANDEZ V. TEXAS, 347 U.S.
475, 481.  THIS IS PARTICULARLY TRUE HERE WHERE SEVERAL OF THE PARISH
JUDGES APPARENTLY HAVE NEVER EVEN INTERVIEWED A NEGRO IN SELECTING
GRAND JURORS.  WE ARE RELUCTANTLY FORCED TO CONCLUDE THAT THE UNIFORM
AND LONG-CONTINUED EXCLUSION OF NEGROES FROM GRAND JURIES SHOWN BY THIS
RECORD CANNOT BE ATTRIBUTED TO CHANCE, TO ACCIDENT, OR TO THE FACT THAT
NO SUFFICIENTLY QUALIFIED NEGROES HAVE EVER BEEN INCLUDED IN THE LISTS
SUBMITTED TO THE VARIOUS LOCAL JUDGES.  IT SEEMS CLEAR TO US THAT
NEGROES HAVE BEEN CONSISTENTLY BARRED FROM JURY SERVICE BECAUSE OF
THEIR RACE. 

IT MAY WELL BE, AS ONE OF THE PARISH JUDGES RECENTLY STATED, THAT
"THE SELECTION OF GRAND JURIES IN THIS COMMUNITY THROUGHOUT THE YEARS
HAS BEEN CONTROLLED BY A TRADITION AND THE GENERAL THINKING OF THE
COMMUNITY AS A WHOLE IS UNDER THE INFLUENCE OF THAT TRADITION."  (FN4)
BUT LOCAL TRADITION CANNOT JUSTIFY FAILURE TO COMPLY WITH THE
CONSTITUTIONAL MANDATE REQUIRING EQUAL PROTECTION OF THE LAWS. 

"A PRISONER WHOSE CONVICTION IS REVERSED BY THIS COURT NEED NOT GO
FREE IF HE IS IN FACT GUILTY, FOR THE STATE MAY INDICT AND TRY HIM
AGAIN BY THE PROCEDURE WHICH CONFORMS TO CONSTITUTIONAL REQUIREMENTS. 
(FN5)  BUT NO STATE IS AT LIBERTY TO IMPOSE UPON ONE CHARGED WITH CRIME
A DISCRIMINATION IN ITS TRIAL PROCEDURE WHICH THE CONSTITUTION, AND AN
ACT OF CONGRESS PASSED PURSUANT TO THE CONSTITUTION, ALIKE FORBID.  NOR
IS THIS COURT AT LIBERTY TO GRANT OR WITHHOLD THE BENEFITS OF EQUAL
PROTECTION, WHICH THE CONSTITUTION COMMANDS FOR ALL, MERELY AS WE MAY
DEEM THE DEFENDANT INNOCENT OR GUILTY."  HILL V. TEXAS, 316 U.S. 400,
406. 

THE JUDGMENT OF THE LOUISIANA SUPREME COURT IS REVERSED AND THE CAUSE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  STRAUDER V. WEST VIRGINIA, 100 U.S. 303; NEAL V. DELAWARE, 103
U.S. 370; GIBSON V. MISSISSIPPI, 162 U.S. 565; CARTER V. TEXAS, 177
U.S. 442; ROGERS V. ALABAMA, 192 U.S. 226; MARTIN V. TEXAS, 200 U.S.
316; NORRIS V. ALABAMA, 294 U.S. 587; HALE V. KENTUCKY, 303 U.S. 613;
PIERRE V. LOUISIANA, 306 U.S. 354; SMITH V. TEXAS, 311 U.S. 128; HILL
V. TEXAS, 316 U.S. 400; AKINS V. TEXAS, 325 U.S. 398; PATTON V.
MISSISSIPPI, 332 U.S. 463; CASSELL V. TEXAS, 339 U.S. 282; HERNANDEZ V.
TEXAS, 347 U.S. 475; REECE V. GEORGIA, 350 U.S. 85. 

FN2  LA. REV. STAT., 1950, TIT. 15, SEC. 194. 

FN3  ID., SEC. 196. 

FN4  LOUISIANA V. DOWELS, CRIM. DIST. CT., NO. 139-324, OCT. 1952
(UNREPORTED OPINION).  IN THAT CASE THE TRIAL JUDGE QUASHED AN
INDICTMENT BECAUSE NEGROES HAD BEEN SYSTEMATICALLY AND INTENTIONALLY
EXCLUDED FROM PARISH GRAND JURIES: 

"OUR SITUATION IN ORLEANS SEEMS TO BE PARTICULARLY VULNERABLE TO THE
THEORY OF THE UNITED STATES SUPREME COURT 'THAT CHANCE AND ACCIDENT
ALONE CAN HARDLY EXPLAIN THE CONTINUOUS OMISSION OF NEGROES FROM GRAND
JURIES OVER A LONG PERIOD OF TIME' BECAUSE WE HAVE FIVE AND IN THE LAST
FOUR YEARS, SIX COURTS, SELECTING GRAND JURIES AND THE RECORD SHOWS
THAT NOTWITHSTANDING THE NUMBER OF COURTS THAT SELECT GRAND JURIES, AND
REGARDLESS OF WHICH COURT SELECTS A GRAND JURY, OR WHEN THAT COURT
SELECTS A GRAND JURY, OR HOW THAT COURT SELECTS A GRAND JURY, OR HOW
OFTEN ONE COURT OR ALL COURTS HAVE SELECTED A GRAND JURY, OR OVER WHAT
PERIOD OF TIME ANY COURT OR ALL COURTS CONTINUE TO SELECT GRAND JURIES,
THE OMISSION OF NEGROES IS CONSISTENT, CONSTANT AND THE SAME. 

     *         *         *         *       * 

"WHILE THIS COURT IS CONSCIOUS OF ITS FALLIBILITY, IT IS FIRM IN ITS
OPINION THAT THIS RECORD IN THE SUPREME COURT OF LOUISIANA OR OF THE
UNITED STATES, WOULD SUPPORT NO OTHER RULING EXCEPT A RULING QUASHING
THE INDICTMENT HEREIN BECAUSE OF INTENTIONAL AND SYSTEMATIC EXCLUSION
OF NEGROES FROM GRAND JURIES IN ORLEANS PARISH BECAUSE OF RACE AND
COLOR AND IN VIOLATION OF THE FOURTEENTH AMENDMENT, INCLUSIVE OF THE
GRAND JURY THAT RETURNED THE INDICTMENT IN THIS CASE, BECAUSE THAT
GRAND JURY IS NOT DIFFERENTIATED FROM THE PATTERN OF JURY SELECTION
THAT CONSISTENTLY ELIMINATED COLORED PERSONS FROM GRAND JURIES." 

SO FAR AS APPEARS THIS IS THE ONLY INSTANCE IN THE PARISH WHERE AN
INDICTMENT HAS BEEN ANNULLED BECAUSE OF RACIAL DISCRIMINATION. 

FN5  FOR EXAMPLE IN PIERRE V. LOUISIANA, 306 U.S. 354, A NEGRO'S
CONVICTION WAS REVERSED BECAUSE MEMBERS OF HIS RACE HAD BEEN
DISCRIMINATORILY EXCLUDED FROM THE GRAND JURY WHICH INDICTED HIM.  ON
REMAND ANOTHER GRAND JURY, THIS TIME COMPOSED IN PART OF NEGROES, WAS
IMPANELED AND RETURNED A NEW INDICTMENT.  THE DEFENDANT WAS THEN TRIED
AND CONVICTED BY A PETIT JURY WHICH INCLUDED A NEGRO.  SEE STATE V.
PIERRE, 198 LA. 619, 3 SO. 2D 895. 
..END :








RAINWATER DBA R.S. RAINWATER & SONS V. UNITED STATES 356 U.S. 590 


NO. 276.  ARGUED APRIL 2, 1958 - DECIDED MAY 26, 1958 - 224 F.2D 27,
AFFIRMED. 


A CLAIM AGAINST THE COMMODITY CREDIT CORPORATION, A WHOLLY OWNED
GOVERNMENT CORPORATION OPERATING WITHIN AND AS A PART OF THE DEPARTMENT
OF AGRICULTURE AS AN ADMINISTRATIVE DEVICE FOR THE PURPOSE OF CARRYING
OUT FEDERAL FARM PROGRAMS WITH PUBLIC FUNDS, IS A CLAIM "AGAINST THE
GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT OR OFFICER THEREOF"
WITHIN THE MEANING OF THE CIVIL PROVISIONS OF THE FALSE CLAIMS ACT. 
PP. 590-594. 

RAINWATER ET AL., DOING BUSINESS AS R.S. RAINWATER & SONS, ET AL. V.
UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES TWO RELATED SUITS BY THE UNITED STATES TO RECOVER
DAMAGES AND FORFEITURES UNDER THE CIVIL PROVISIONS OF THE FALSE CLAIMS
ACT.  (FN1)  IN EACH INSTANCE THE COMPLAINT ALLEGED THAT THE DEFENDANTS
HAD SUCCESSFULLY PRESENTED FALSE APPLICATIONS FOR CROP LOANS TO THE
COMMODITY CREDIT CORPORATION, A WHOLLY OWNED GOVERNMENT CORPORATION. 
THE DEFENDANTS MOVED TO DISMISS THE COMPLAINTS, ARGUING THAT A CLAIM
AGAINST COMMODITY WAS NOT A CLAIM "AGAINST THE GOVERNMENT OF THE UNITED
STATES, OR ANY DEPARTMENT OR OFFICER THEREOF" AS REQUIRED BY THE ACT. 
THE DISTRICT COURT GRANTED THE MOTIONS TO DISMISS, BUT THE COURT OF
APPEALS REVERSED AND REMANDED FOR TRIAL.  244 F.2D 27.  BECAUSE OF A
CONFLICT IN THE CIRCUITS (FN2) WE GRANTED CERTIORARI, 355 U.S. 811,
SOLELY TO CONSIDER WHETHER FALSE CLAIMS AGAINST COMMODITY ARE COVERED
BY THE FALSE CLAIMS ACT. 

COMMODITY IS AN "AGENCY AND INSTRUMENTALITY OF THE UNITED STATES,
WITHIN THE DEPARTMENT OF AGRICULTURE, SUBJECT TO THE GENERAL
SUPERVISION AND DIRECTION OF THE SECRETARY OF AGRICULTURE."  (FN3)  IT
WAS CREATED BY CONGRESS TO SUPPORT FARM PRICES AND TO ASSIST IN
MAINTAINING AND DISTRIBUTING ADEQUATE SUPPLIES OF AGRICULTURAL
COMMODITIES.  ITS CAPITAL WAS PROVIDED BY CONGRESSIONAL APPROPRIATION. 
ANY IMPAIRMENT OF THIS CAPITAL, WHICH AT TIMES HAS BEEN GREAT DUE TO
THE NATURE OF ITS ACTIVITIES, (FN4) IS REPLACED OUT OF THE PUBLIC
TREASURY; ANY GAINS ARE RETURNED TO THAT TREASURY.  ALL OF ITS OFFICERS
AND OTHER PERSONNEL ARE EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE AND
ARE COMPENSATED AS SUCH.  LIKE OTHER GOVERNMENT CORPORATIONS, COMMODITY
IS SUBJECT TO THE PROVISIONS OF THE GOVERNMENT CORPORATION CONTROL ACT
WHICH PROVIDES SUCH CLOSE BUDGETARY, AUDITING AND FISCAL CONTROLS THAT
LITTLE MORE THAN A CORPORATE NAME REMAINS TO DISTINGUISH IT FROM THE
ORDINARY GOVERNMENT AGENCY.  (FN5)  IN BRIEF, COMMODITY IS SIMPLY AN
ADMINISTRATIVE DEVICE ESTABLISHED BY CONGRESS FOR THE PURPOSE OF
CARRYING OUT FEDERAL FARM PROGRAMS WITH PUBLIC FUNDS. 

IN OUR JUDGMENT COMMODITY IS A PART OF "THE GOVERNMENT OF THE UNITED
STATES" FOR PURPOSES OF THE FALSE CLAIMS ACT.  (FN6)  THAT ACT WAS
ORIGINALLY PASSED IN 1863 AFTER DISCLOSURE OF WIDESPREAD FRAUD AGAINST
THE GOVERNMENT DURING THE WAR BETWEEN THE STATES.  IT SEEMS QUITE CLEAR
THAT THE OBJECTIVE OF CONGRESS WAS BROADLY TO PROTECT THE FUNDS AND
PROPERTY OF THE GOVERNMENT FROM FRAUDULENT CLAIMS, REGARDLESS OF THE
PARTICULAR FORM, OR FUNCTION, OF THE GOVERNMENT INSTRUMENTALITY UPON
WHICH SUCH CLAIMS WERE MADE.  CF. UNITED STATES EX REL.  MARCUS V.
HESS, 317 U.S. 537, 544-545.   (FN7)  BY ANY ORDINARY STANDARD THE
LANGUAGE OF THE ACT IS CERTAINLY COMPREHENSIVE ENOUGH TO ACHIEVE THIS
PURPOSE.  IN REACHING OUR CONCLUSION, WE ARE AWARE THAT THE CIVIL
PORTION OF THE ACT INCORPORATES, AS A TEST OF LIABILITY, THE PROVISIONS
OF THE CRIMINAL SECTION AS THEY WERE SET OUT IN SEC. 5438 OF THE
REVISED STATUTES OF 1878, (FN8) AND THAT ACCORDING TO FAMILIAR
PRINCIPLES THE SCOPE OF THESE PROVISIONS SHOULD BE CONFINED TO THEIR
LITERAL TERMS.  YET EVEN PENAL PROVISIONS MUST BE "GIVEN THEIR FAIR
MEANING IN ACCORD WITH THE EVIDENT INTENT OF CONGRESS."  UNITED STATES
V. RAYNOR, 302 U.S. 540, 552. 

IN 1918 CONGRESS AMENDED THE CRIMINAL PROVISIONS OF THE FALSE CLAIMS
ACT SO THAT THEY EXPLICITLY PROHIBITED FALSE CLAIMS AGAINST "ANY
CORPORATION IN WHICH THE UNITED STATES OF AMERICA IS A STOCKHOLDER." 
(FN9)  PETITIONERS CONTEND THAT THIS AMENDMENT SHOWS THAT THE CRIMINAL
PROVISIONS HAD NOT PREVIOUSLY COVERED GOVERNMENT CORPORATIONS.  FROM
THIS THEY ARGUE - RELYING ON THE RULE THAT INCORPORATION OF A STATUTE
BY REFERENCE GENERALLY DOES NOT INCLUDE SUBSEQUENT AMENDMENTS TO THAT
STATUTE - THAT THE CIVIL PROVISIONS, WHICH HAVE NEVER BEEN AMENDED,
ALSO DO NOT COVER FALSE CLAIMS AGAINST SUCH CORPORATIONS. 

DESPITE ITS SURFACE PLAUSIBILITY THIS ARGUMENT CANNOT WITHSTAND
ANALYSIS.  AT MOST, THE 1918 AMENDMENT IS MERELY AN EXPRESSION OF HOW
THE 1918 CONGRESS INTERPRETED A STATUTE PASSED BY ANOTHER CONGRESS MORE
THAN A HALF CENTURY BEFORE.  UNDER THESE CIRCUMSTANCES SUCH
INTERPRETATION HAS VERY LITTLE, IF ANY, SIGNIFICANCE.  CF. HIGGINS V.
SMITH, 308 U.S. 473, 479-480; UNITED STATES V. STAFOFF, 260 U.S. 477,
480.  ASIDE FROM THIS, THE LANGUAGE OF THE 1918 AMENDMENT AS WELL AS
ITS BACKGROUND INDICATES THAT CONGRESS WAS PRIMARILY CONCERNED WITH
PROTECTING CERTAIN GOVERNMENT CORPORATIONS, LIKE THE UNITED STATES
SHIPPING BOARD EMERGENCY FLEET CORPORATION, CHARTERED UNDER LOCAL LAWS
AND ORGANIZED SO THAT PRIVATE PARTIES COULD SHARE STOCK OWNERSHIP WITH
THE UNITED STATES.   SEE 39 STAT. 731; UNITED STATES V. BOWMAN, 260
U.S. 94, 101-102.  ANY EXPRESSION OF CONGRESSIONAL OPINION REGARDING
THAT TYPE OF CORPORATION IS OF LITTLE VALUE IN DECIDING THE
APPLICABILITY OF THE FALSE CLAIMS ACT TO A WHOLLY OWNED AND CLOSELY
CONTROLLED GOVERNMENT INSTRUMENTALITY LIKE COMMODITY. 

NONE OF THE CASES RELIED ON BY PETITIONER CALL FOR A RESULT DIFFERENT
FROM THE ONE WE REACH.  PIERCE V. UNITED STATES, 314 U.S. 306, WHERE
THE COURT REFUSED TO APPLY A STATUTE MAKING CRIMINAL THE IMPERSONATION
OF AN OFFICER OF THE UNITED STATES TO A PERSON POSING AS AN OFFICER OF
THE TENNESSEE VALLEY AUTHORITY, CONCERNED ANOTHER STATUTE ENACTED FOR
OTHER PURPOSES.  (FN10)  MOREOVER, IT RESTED IN SUBSTANTIAL PART ON THE
FACT THAT THE TVA ACT SPECIFICALLY LISTED A NUMBER OF FEDERAL CRIMINAL
STATUTES AS APPLICABLE TO TVA OPERATIONS BUT OMITTED THE FALSE
IMPERSONATION STATUTE.  THE CASES PRESENTING QUESTIONS OF GOVERNMENTAL
IMMUNITY, E.G., KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP., 306
U.S. 381, OR INTRAGOVERNMENTAL ORGANIZATION, E.G., UNITED STATES EX
REL. SKINNER & EDDY CORP. V. MCCARL, 275 U.S. 1, INVOLVED NOTHING MORE
THAN A SEARCH FOR CONGRESSIONAL PURPOSE WITH RESPECT TO THE PROBLEMS
THEN BEFORE THE COURT.  AFFIRMED. 

FN1  R.S. SEC. 3490 (1878):  "ANY PERSON  ...  WHO SHALL DO OR COMMIT
ANY OF THE ACTS PROHIBITED BY ANY OF THE PROVISIONS OF SECTION FIFTY
FOUR HUNDRED AND THIRTY-EIGHT (R.S.  SEC. 5438 (1878)) SHALL FORFEIT
AND PAY TO THE UNITED STATES THE SUM OF TWO THOUSAND DOLLARS, AND, IN
ADDITION, DOUBLE THE AMOUNT OF DAMAGES WHICH THE UNITED STATES MAY HAVE
SUSTAINED BY REASON OF THE DOING OR COMMITTING SUCH ACT  ...  ." 

R.S. SEC. 5438 (1878):  "EVERY PERSON WHO MAKES OR CAUSES TO BE MADE,
OR PRESENTS OR CAUSES TO BE PRESENTED, FOR PAYMENT OR APPROVAL, TO OR
BY ANY PERSON OR OFFICER IN THE CIVIL, MILITARY, OR NAVAL SERVICE OF
THE UNITED STATES, ANY CLAIM UPON OR AGAINST THE GOVERNMENT OF THE
UNITED STATES, OR ANY DEPARTMENT OF OFFICER THEREOF, KNOWING SUCH CLAIM
TO BE FALSE, FICTITIOUS, OR FRAUDULENT  ...  SHALL BE IMPRISONED AT
HARD LABOR FOR NOT LESS THAN ONE NOR MORE THAN FIVE YEARS, OR FINED NOT
LESS THAN ONE THOUSAND NOR MORE THAN FIVE THOUSAND DOLLARS." 

FN2  SEE UNITED STATES V. MCNINCH, 242 F.2D 359, CERT. GRANTED, 355
U.S. 808, REVERSED IN PART AND AFFIRMED IN PART, POST, P. 595. 

FN3  SEE THE COMMODITY CREDIT CORPORATION CHARTER ACT, 62 STAT. 1070,
AS AMENDED, 15 U.S.C.  SEC. 714 ET SEQ. 

FN4  SEE, E.G., 67 STAT. 222; 70 STAT. 238. 

FN5  59 STAT. 597, AS AMENDED, 31 U.S.C. SEC. 841 ET SEQ. 

FN6  CF. CHERRY COTTON MILLS, INC., V. UNITED STATES, 327 U.S. 536;
INLAND WATERWAYS CORP. V. YOUNG, 309 U.S. 517; EMERGENCY FLEET CORP. V.
WESTERN UNION TELEGRAPH CO., 275 U.S. 415. 

FN7  SEE CONG. GLOBE, 37TH CONG., 3D SESS. 952-958.  CF. H.R. REP.
NO. 2, PART 2, 37TH CONG., 2D SESS. 

FN8  ORIGINALLY CONGRESS PROVIDED BOTH CRIMINAL AND CIVIL SANCTIONS
IN THE SAME STATUTE.  12 STAT. 696.  BY THE REVISED STATUTES OF 1878
THE CIVIL SANCTIONS WERE CODIFIED AS SEC.  3490, WHILE THE CRIMINAL
PROVISIONS WERE SEPARATELY ENACTED AS SEC. 5438.  SECTION 3490
PERMITTED THE GOVERNMENT TO RECOVER FORFEITURES AND DAMAGES FOR THOSE
ACTS PROHIBITED BY SEC. 5438, E.G., SUBMISSION OF FALSE OR FRAUDULENT
CLAIMS "AGAINST THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT
OR OFFICER THEREOF."  SEE NOTE 1, SUPRA.  THE CIVIL PROVISIONS AS
ENACTED IN SEC. 3490 HAVE NEVER BEEN ALTERED. 

FN9  40 STAT. 1015. 

FN10  ALSO SEE UNITED STATES V. STRANG, 254 U.S. 491.  COMPARE UNITED
STATES V. WALTER, 263 U.S. 15, 18, AND EMERGENCY FLEET CORP. V. WESTERN
UNION TELEGRAPH CO., 275 U.S. 415. 
..END :





















UNITED STATES V. MCNINCH, DBA HOME COMFORT CO. 356 U.S. 595 


NO. 146.  ARGUED APRIL 1, 1958 - DECIDED MAY 26, 1958 - 242 F.2D 359,
AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED. 


1.  A CLAIM AGAINST THE COMMODITY CREDIT CORPORATION IS A CLAIM
"AGAINST THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT OR
OFFICER THEREOF" WITHIN THE MEANING OF THE CIVIL PROVISIONS OF THE
FALSE CLAIMS ACT.  RAINWATER V. UNITED STATES, ANTE, P. 590.  PP.  595
596. 

2.  THE FEDERAL HOUSING ADMINISTRATION, AN UNINCORPORATED AGENCY IN
THE EXECUTIVE DEPARTMENT CREATED BY THE PRESIDENT PURSUANT TO
CONGRESSIONAL AUTHORITY TO ADMINISTER A NUMBER OF FEDERAL HOUSING
PROGRAMS AND OPERATING WITH FUNDS ORIGINALLY APPROPRIATED BY CONGRESS,
IS A PART OF THE "GOVERNMENT OF THE UNITED STATES" WITHIN THE MEANING
OF THE CIVIL PROVISIONS OF THE FALSE CLAIMS ACT.  PP. 596-598. 

3.  A LENDING INSTITUTION'S APPLICATION TO THE FEDERAL HOUSING
ADMINISTRATION FOR CREDIT INSURANCE IS NOT A "CLAIM" AS THAT TERM IS
USED IN THE FALSE CLAIMS ACT.  PP. 598-600. 

UNITED STATES V. MCNINCH, DOING BUSINESS AS HOME COMFORT CO., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS ARGUED WITH RAINWATER V. UNITED STATES, ANTE, P. 590,
ALSO DECIDED TODAY.  IT INVOLVES THREE SEPARATE ACTIONS BY THE
GOVERNMENT TO RECOVER DAMAGES AND FORFEITURES UNDER THE FALSE CLAIMS
ACT.  (FN1)  THESE ACTIONS - WHICH WILL BE REFERRED TO, AFTER THE
PRINCIPAL DEFENDANT IN EACH INSTANCE, AS CATO, TOEPLEMAN AND MCNINCH -
WERE INITIALLY BROUGHT IN DIFFERENT FEDERAL DISTRICT COURTS BUT ON
APPEAL WERE DISPOSED OF BY THE COURT OF APPEALS IN A SINGLE OPINION. 
242 F.2D 359.  (FN2) 

IN CATO AND TOEPLEMAN THE DISTRICT COURT FOUND THE DEFENDANTS HAD
SUBMITTED FALSE CLAIMS FOR CROP SUPPORT LOANS TO THE COMMODITY CREDIT
CORPORATION, AND ENTERED JUDGMENT IN FAVOR OF THE GOVERNMENT FOR THE
FORFEITURES PROVIDED BY THE FALSE CLAIMS ACT.  THE COURT OF APPEALS
REVERSED ON THE GROUND THAT A FALSE CLAIM AGAINST COMMODITY WAS NOT A
CLAIM "AGAINST THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT
OR OFFICER THEREOF" WITHIN THE MEANING OF THAT ACT.  THE SOLE QUESTION
BEFORE US, SO FAR AS THESE TWO ACTIONS ARE CONCERNED, IS WHETHER THE
COURT OF APPEALS ERRED IN SO DECIDING.  FOR THE REASONS SET FORTH IN
RAINWATER WE HOLD THAT IT DID. 

MCNINCH RAISES DIFFERENT QUESTIONS CONCERNING ALLEGED FALSE CLAIMS
AGAINST THE FEDERAL HOUSING ADMINISTRATION.  BY STATUTE THE FHA IS
AUTHORIZED TO INSURE QUALIFIED BANKS AND OTHER PRIVATE LENDING
INSTITUTIONS AGAINST A SUBSTANTIAL PORTION OF ANY LOSSES SUSTAINED BY
THEM IN LENDING MONEY FOR THE REPAIR OR ALTERATION OF HOMES.  (FN3)
AFTER A LENDING INSTITUTION HAS BEEN APPROVED BY THE FHA THAT AGENCY
PROMISES TO INSURE, UPON PAYMENT OF A SPECIFIED PREMIUM, ANY HOME
IMPROVEMENT LOAN MADE BY THE INSTITUTION.  A BORROWER DESIRING TO
OBTAIN AN INSURED LOAN APPLIES DIRECTLY TO THE PRIVATE LENDER, WHICH
HAS FINAL AUTHORITY TO DECIDE WHETHER THE LOAN SHOULD BE MADE.  IF A
LOAN IS GRANTED, THE LENDER REPORTS THE DETAILS TO THE FHA WHICH
AUTOMATICALLY INSURES THE LOAN AS SOON AS THE REQUIRED PREMIUM IS
PAID. 

THE GOVERNMENT'S COMPLAINT IN MCNINCH CHARGED THE DEFENDANTS WITH
CAUSING A QUALIFIED BANK TO PRESENT A NUMBER OF FALSE APPLICATIONS FOR
CREDIT INSURANCE TO THE FHA.  (FN4)  THE DEFENDANTS MOVED TO DISMISS
THE COMPLAINT, ASSERTING THAT IT FAILED TO STATE A CAUSE OF ACTION. 
THE DISTRICT COURT GRANTED THE MOTION, HOLDING THAT AN APPLICATION FOR
CREDIT INSURANCE WAS NOT A "CLAIM" WITHIN THE MEANING OF THE FALSE
CLAIMS ACT.  THE COURT OF APPEALS AFFIRMED ON THAT SAME BASIS AS WELL
AS ON THE ALTERNATIVE GROUND THAT A FALSE CLAIM AGAINST THE FHA WAS NOT
A CLAIM "AGAINST THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT
OR OFFICER THEREOF." 

1.  IN OUR JUDGMENT THE COURT OF APPEALS QUITE PLAINLY ERRED IN
HOLDING THAT THE FHA WAS NOT PART OF THE "GOVERNMENT OF THE UNITED
STATES" FOR PURPOSES OF THE FALSE CLAIMS ACT.  THE FHA IS AN
UNINCORPORATED AGENCY IN THE EXECUTIVE DEPARTMENT CREATED BY THE
PRESIDENT PURSUANT TO CONGRESSIONAL AUTHORIZATION.  ITS HEAD, THE
FEDERAL HOUSING COMMISSIONER, IS APPOINTED BY THE PRESIDENT WITH THE
SENATE'S CONSENT, AND THE POWERS OF THE AGENCY ARE VESTED IN HIM.  THE
AGENCY IS RESPONSIBLE FOR THE ADMINISTRATION OF A NUMBER OF FEDERAL
HOUSING PROGRAMS AND OPERATES WITH FUNDS ORIGINALLY APPROPRIATED BY
CONGRESS.  IN SHORT, THE FHA IS ABOUT AS MUCH A PART OF THE GOVERNMENT
AS ANY AGENCY CAN BE. 

2.  ALTHOUGH THE PROBLEM IS NOT EASY, WE BELIEVE THE COURTS BELOW WERE
CORRECT IN HOLDING THAT A LENDING INSTITUTION'S APPLICATION FOR CREDIT
INSURANCE UNDER THE FHA PROGRAM IS NOT A "CLAIM" AS THAT TERM IS USED
IN THE FALSE CLAIMS ACT.  WE ACKNOWLEDGE THE FORCE IN THE GOVERNMENT'S
ARGUMENT THAT LITERALLY SUCH AN APPLICATION COULD BE REGARDED AS A
CLAIM, IN THE SENSE THAT THE APPLICANT ASSERTS A RIGHT OR PRIVILEGE TO
DRAW UPON THE GOVERNMENT'S CREDIT.  BUT IT MUST BE KEPT IN MIND, AS WE
EXPLAINED IN RAINWATER, THAT IN DETERMINING THE MEANING OF THE WORDS
"CLAIM AGAINST THE GOVERNMENT" WE ARE ACTUALLY CONSTRUING THE
PROVISIONS OF A CRIMINAL STATUTE.  (FN5)  SUCH PROVISIONS MUST BE
CAREFULLY RESTRICTED, NOT ONLY TO THEIR LITERAL TERMS BUT TO THE
EVIDENT PURPOSE OF CONGRESS IN USING THOSE TERMS, PARTICULARLY WHERE
THEY ARE BROAD AND SUSCEPTIBLE TO NUMEROUS DEFINITIONS.  SEE UNITED
STATES EX REL. MARCUS V. HESS, 317 U.S. 537, 542; UNITED STATES V.
WILTBERGER, 5 WHEAT.  76, 95-96. 

IN NORMAL USAGE OR UNDERSTANDING AN APPLICATION FOR CREDIT INSURANCE
WOULD HARDLY BE THOUGHT OF AS A "CLAIM AGAINST THE GOVERNMENT."  AS THE
COURT OF APPEALS FOR THE THIRD CIRCUIT SAID IN THIS SAME CONTEXT, "THE
CONCEPTION OF A CLAIM AGAINST THE GOVERNMENT NORMALLY CONNOTES A DEMAND
FOR MONEY OR FOR SOME TRANSFER OF PUBLIC PROPERTY."  UNITED STATES V.
TIEGER, 234 F.2D 589, 591.  IN AGREEING TO INSURE A HOME IMPROVEMENT
LOAN THE FHA DISBURSES NO FUNDS NOR DOES IT OTHERWISE SUFFER IMMEDIATE
FINANCIAL DETRIMENT.  IT SIMPLY CONTRACTS, FOR A PREMIUM, TO REIMBURSE
THE LENDING INSTITUTION IN THE EVENT OF FUTURE DEFAULT, IF ANY.  (FN6) 

THE FALSE CLAIMS ACT WAS ORIGINALLY ADOPTED FOLLOWING A SERIES OF
SENSATIONAL CONGRESSIONAL INVESTIGATIONS INTO THE SALE OF PROVISIONS
AND MUNITIONS TO THE WAR DEPARTMENT.  TESTIMONY BEFORE THE CONGRESS
PAINTED A SORDID PICTURE OF HOW THE UNITED STATES HAD BEEN BILLED FOR
NONEXISTENT OR WORTHLESS GOODS, CHARGED EXORBITANT PRICES FOR GOODS
DELIVERED, AND GENERALLY ROBBED IN PURCHASING THE NECESSITIES OF WAR. 
(FN7)  CONGRESS WANTED TO STOP THIS PLUNDERING OF THE PUBLIC TREASURY. 
(FN8)  AT THE SAME TIME IT IS EQUALLY CLEAR THAT THE FALSE CLAIMS ACT
WAS NOT DESIGNED TO REACH EVERY KIND OF FRAUD PRACTICED ON THE
GOVERNMENT.  FROM THE LANGUAGE OF THAT ACT, READ AS A WHOLE IN THE
LIGHT OF NORMAL USAGE, AND THE AVAILABLE LEGISLATIVE HISTORY WE ARE LED
TO THE CONCLUSION THAT AN APPLICATION FOR CREDIT INSURANCE DOES NOT
FAIRLY COME WITHIN THE SCOPE THAT CONGRESS INTENDED THE ACT TO HAVE. 
(FN9)  THIS QUESTION HAS NOW BEEN CONSIDERED BY THE COURTS OF APPEALS
FOR THE THIRD, FOURTH, AND FIFTH CIRCUITS, AS WELL AS BY DISTRICT
COURTS IN THOSE CIRCUITS, AND ALL HAVE REACHED THE SAME CONCLUSION. 
(FN10) 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN MCNINCH AND
REVERSED IN CATO AND TOEPLEMAN AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  R.S. SECS. 3490, 5438 (1878), WHICH ARE SET OUT IN NOTE 1,
RAINWATER V. UNITED STATES, ANTE, P. 590. 

FN2  IN CATO THE SUIT WAS FILED IN THE EASTERN DISTRICT OF VIRGINIA. 
THE DEFENDANTS WERE CATO BROTHERS, INC., A VIRGINIA CORPORATION, AND
WILFRED CATO, WILLIAM CATO AND MAGIE STONE, ALL DIRECTORS AND OFFICERS
OF THE CORPORATION.  TOEPLEMAN WAS BROUGHT IN THE EASTERN DISTRICT OF
NORTH CAROLINA.  NAMED AS DEFENDANTS WERE FREDERICK TOEPLEMAN AND
GARLAND GREENWAY, AS INDIVIDUALS AND PARTNERS.  AFTER TRIAL, THE
DISTRICT COURT EXONERATED GREENWAY AND HE IS NO LONGER INVOLVED.  IN
MCNINCH THE ACTION WAS INSTITUTED IN THE EASTERN DISTRICT OF SOUTH
CAROLINA.  THE DEFENDANTS WERE HOWARD MCNINCH, ROSALIE MCNINCH AND
GARIS ZEIGLER. 

FN3  IN GENERAL SEE 48 STAT. 1246, AS AMENDED, 12 U.S.C. SEC. 1701 ET
SEQ.; 24 CFR SECS. 200.2-200.3, 201.1-201.16. 

FN4  IN SOMEWHAT GREATER DETAIL THE COMPLAINT MADE THE FOLLOWING
ASSERTIONS:  THE DEFENDANTS HOWARD AND ROSALIE MCNINCH WERE OFFICERS OF
AN UNINCORPORATED HOME CONSTRUCTION BUSINESS AND THE DEFENDANT ZEIGLER
WAS ONE OF THEIR SALESMEN.  THE DEFENDANTS PRESENTED SEVERAL
APPLICATIONS FOR FHA-INSURED LOANS TO A QUALIFIED BANK.  THE LOANS WERE
SOUGHT ON BEHALF OF HOMEOWNERS FOR THE PURPOSE OF FINANCING RESIDENTIAL
REPAIRS AND IMPROVEMENTS WHICH THE BUSINESS HAD CONTRACTED TO MAKE. 
THE APPLICATIONS CONTAINED STATEMENTS MISREPRESENTING THE FINANCIAL
ELIGIBILITY OF THE HOMEOWNERS AND WERE ACCOMPANIED BY FICTITIOUS CREDIT
REPORTS.  THE BANK, RELYING ON THIS FALSE INFORMATION, GRANTED THE
LOANS WHICH IN TURN WERE ROUTINELY INSURED BY THE FHA. 

FN5  SEE NOTE 8, RAINWATER V. UNITED STATES, ANTE, P. 592, AND THE
TEXT AT THAT POINT. 

FN6  SINCE THERE HAS BEEN NO DEFAULT HERE, WE NEED EXPRESS NO VIEW AS
TO WHETHER A LENDING INSTITUTION'S DEMAND FOR REIMBURSEMENT ON A
DEFAULTED LOAN ORIGINALLY PROCURED BY A FRAUDULENT APPLICATION WOULD BE
A "CLAIM" COVERED BY THE FALSE CLAIMS ACT. 

FN7  SEE, E.G., H.R. REP. NO. 2, PART 2, 37TH CONG., 2D SESS. 

FN8 CONG. GLOBE, 37TH CONG., 3D SESS. 952-958. 

FN9  THE MANAGER OF THE BILL IN THE SENATE STATED ITS OBJECTIVE AS
FOLLOWS: 

"I WILL SIMPLY SAY TO THE SENATE THAT THIS BILL HAS BEEN PREPARED AT
THE URGENT SOLICITATION OF THE OFFICERS WHO ARE CONNECTED WITH THE
ADMINISTRATION OF THE WAR DEPARTMENT AND TREASURY DEPARTMENT.  THE
COUNTRY, AS WE KNOW, HAS BEEN FULL OF COMPLAINTS RESPECTING THE FRAUDS
AND CORRUPTIONS PRACTICED IN OBTAINING PAY FROM THE GOVERNMENT DURING
THE PRESENT WAR; AND IT IS SAID, AND EARNESTLY URGED UPON OUR
ATTENTION, THAT FURTHER LEGISLATION IS PRESSINGLY NECESSARY TO PREVENT
THIS GREAT EVIL; AND I SUPPOSE THERE CAN BE NO DOUBT THAT THESE
COMPLAINTS ARE, IN THE MAIN, WELL FOUNDED.  FROM THE ATTENTION I HAVE
BEEN ABLE TO GIVE THE SUBJECT, I AM SATISFIED THAT MORE STRINGENT
PROVISIONS ARE REQUIRED FOR THE PURPOSE OF PUNISHING AND PREVENTING
THESE FRAUDS; AND WITH A VIEW TO APPLY A MORE SPEEDY AND VIGOROUS
REMEDY IN CASES OF THIS KIND THE PRESENT BILL HAS BEEN PREPARED." 
CONG. GLOBE, 37TH CONG., 3D SESS. 952. 

APPARENTLY THERE WERE NO COMMITTEE REPORTS NOR ANY RECORD OF THE
PROCEEDINGS IN THE HOUSE. 

FN10  SEE UNITED STATES V. TIEGER, 234 F.2D 589, CERT. DENIED, 352
U.S. 941; UNITED STATES V. COCHRAN, 235 F.2D 131, CERT. DENIED, 352
U.S. 941. 

ALTHOUGH OFFERED IN A SOMEWHAT DIFFERENT CONTEXT THE STATEMENT OF THE
COURT IN UNITED STATES V. COHN, 270 U.S. 339, 345-346, ALSO HAS
RELEVANCY HERE: 

"WHILE THE WORD 'CLAIM' MAY SOMETIMES BE USED IN THE BROAD JURIDICAL
SENSE OF 'A DEMAND OF SOME MATTER AS OF RIGHT MADE BY ONE PERSON UPON
ANOTHER, TO DO OR TO FORBEAR TO DO SOME ACT OR THING AS A MATTER OF
DUTY,' PRIGG V. PENNSYLVANIA, 16 PET. 539, 615, IT IS CLEAR, IN THE
LIGHT OF THE ENTIRE CONTEXT, THAT IN THE PRESENT STATUTE, THE PROVISION
RELATING TO THE PAYMENT OR APPROVAL OF A 'CLAIM UPON OR AGAINST' THE
GOVERNMENT RELATES SOLELY TO THE PAYMENT OR APPROVAL OF A CLAIM FOR
MONEY OR PROPERTY TO WHICH A RIGHT IS ASSERTED AGAINST THE GOVERNMENT,
BASED UPON THE GOVERNMENT'S OWN LIABILITY TO THE CLAIMANT." 

MR. JUSTICE DOUGLAS, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH THE COURT AS RESPECTS THE FALSE CLAIMS MADE AGAINST THE
COMMODITY CREDIT CORPORATION.   I DISAGREE AS TO THE CLAIMS AGAINST THE
FEDERAL HOUSING ADMINISTRATION.  THE ALLEGATIONS ARE THAT MCNINCH AND
OTHERS, HAVING CONTRACTED TO MAKE ALTERATIONS AND IMPROVEMENTS IN
VARIOUS HOMES, PRESENTED TO A SOUTH CAROLINA BANK SEVERAL FRAUDULENT
LOAN APPLICATIONS.  THE APPLICATIONS WERE ACCOMPANIED BY FICTITIOUS
CREDIT REPORTS AND MISREPRESENTED THE FINANCIAL ELIGIBILITY OF THE
HOMEOWNERS.  THESE LOAN APPLICATIONS WERE MADE WITH THE INTENT THAT
THEY BE ACCEPTED BY THE FEDERAL HOUSING ADMINISTRATION FOR INSURANCE. 
(FN1)  THESE ARE THE ALLEGATIONS, WHICH FOR PRESENT PURPOSES WE MUST
ASSUME ARE CORRECT. 

THE SOUTH CAROLINA BANK HAD BEEN APPROVED BY FHA AS A LENDING
INSTITUTION.  THE BANK APPROVED THE REQUESTED LOANS AND APPLIED TO FHA
FOR INSURANCE.  FHA INSURED THE LOANS.  THEREUPON THE PROCEEDS OF THE
LOANS WERE DEPOSITED TO THE ACCOUNTS OF THESE RESPONDENTS IN THE SOUTH
CAROLINA BANK. 

THE STATUTE, R.S. SECS. 3490, 5438, 31 U.S.C. SEC. 231, COVERS ANYONE
WHO FRAUDULENTLY "MAKES OR CAUSES TO BE MADE, OR PRESENTS OR CAUSES TO
BE PRESENTED, FOR PAYMENT OR APPROVAL  ...  ANY CLAIM" AGAINST THE
UNITED STATES.  NO CLAIM HAS BEEN TENDERED AGAINST THE UNITED STATES
FOR "PAYMENT."  BUT A CLAIM HAS BEEN PRESENTED FOR "APPROVAL" IN THE
MEANING OF THE ACT.  FOR THE UNITED STATES HAS BEEN INDUCED BY
FRAUDULENT REPRESENTATIONS TO INSURE THESE LOANS.  ONE WHO HAS THE
ENDORSEMENT OF THE UNITED STATES ON HIS PAPER HAS ACQUIRED PROPERTY OF
SUBSTANTIAL VALUE.  IT IS A PROPERTY RIGHT OF VALUE BECAUSE IT
REPRESENTS A CLAIM AGAINST THE UNITED STATES.  IT IS OF COURSE
CONTINGENT UNTIL A DEFAULT OCCURS.  BUT WHEN FRAUDULENT, IT REPRESENTS
AN EFFORT TO "CHEAT THE UNITED STATES" (UNITED STATES EX REL. MARCUS V.
HESS, 317 U.S. 537, 544) TO THE EXTENT THAT THE UNITED STATES
UNDERWRITES THE LOSSES ON THE LOANS.  THE FACT THAT PRECISE DAMAGES ARE
NOT SHOWN IS NOT FATAL, AS REX TRAILER CO. V. UNITED STATES, 350 U.S.
148, 153, HOLDS. 

THIS CHEATING OF THE UNITED STATES IS AS REAL, AS SUBSTANTIAL, AND AS
DAMAGING AS THOSE SPECIFIC ABUSES AGAINST WHICH THE MANAGERS OF THIS
LEGISLATION RAILED WHEN IT WAS BEFORE THE CONGRESS.  (FN2)  WE DO NOT
HAVE TO STRETCH THE LAW TO INCLUDE THIS TYPE OF "CLAIM," AS THIS FORM
OF INSURANCE IS A WELL-RECOGNIZED PROPERTY INTEREST.  SEE FIDELITY &
DEPOSIT CO. V. ARENZ, 290 U.S. 66.  THE OBTAINING OF CREDIT RISK
INSURANCE FROM THE GOVERNMENT BY FRAUDULENT MEANS IS A FORM OF
PLUNDERING AS FLAGRANT AS THE PRESENTATION FOR "PAYMENT OR APPROVAL" OF
ANY OTHER TYPE OF CLAIM AGAINST THE TREASURY.  AS JUDGE RIVES SAID IN
HIS DISSENT IN UNITED STATES V. COCHRAN, 235 F.2D 131, 135, "INDUCING
THE GOVERNMENT TO PLEDGE ITS CREDIT BY A FALSE AND FRAUDULENT CLAIM" IS
AS MUCH WITHIN THE ACT AS "INDUCING IT TO PART WITH ITS MONEY OR
PROPERTY."    FN1  THE FEDERAL HOUSING COMMISSIONER IS EMPOWERED TO
INSURE QUALIFIED LENDING INSTITUTIONS AGAINST LOSSES SUSTAINED AS A
RESULT OF LOANS MADE BY THEM FOR THE PURPOSE OF FINANCING ALTERATIONS,
REPAIRS, AND IMPROVEMENTS UPON OR IN CONNECTION WITH REAL PROPERTY, 48
STAT.  1246, AS AMENDED, 12 U.S.C. SEC. 1703(A).  UNDER THE REGULATIONS
(24 CFR SECS. 200.2-200.3) A LENDING INSTITUTION IS FIRST APPROVED BY
FHA TO GRANT LOANS ELIGIBLE FOR INSURANCE AND IS GIVEN A CONTRACT OF
INSURANCE UNDER WHICH THE FHA IN GENERAL AGREES TO INDEMNIFY THE
INSURED AGAINST LOSSES SUSTAINED BY IT UP TO AN AGGREGATE AMOUNT EQUAL
TO 10% OF THE TOTAL SUMS ADVANCED BY THE INSTITUTION IN ELIGIBLE LOANS
AND REPORTED TO FHA FOR INSURANCE.  A BORROWER DESIRING TO OBTAIN A
LOAN MAKES APPLICATION TO THE LENDING INSTITUTION, EITHER DIRECTLY OR
THROUGH CONTRACTORS, ON AN FHA FORM WHICH PROVIDES FOR THE DISCLOSURE
OF CERTAIN INFORMATION, 24 CFR SEC. 200.3(A).  WITHIN 31 DAYS AFTER THE
LOAN IS MADE, THE LENDING INSTITUTION MUST REPORT THE DETAILS OF THE
LOAN TRANSACTION TO THE FHA ON AN AGENCY FORM PROVIDED FOR THAT
PURPOSE, 24 CFR SEC. 200.3(C).  AFTER THE DETAILS OF THE TRANSACTION
HAVE BEEN REPORTED TO IT, FHA COMPUTES THE INSURANCE PREMIUM WHICH WILL
BE DUE AND PAYABLE BY THE LENDING INSTITUTION, RECORDS THE TRANSACTION,
AND ACKNOWLEDGES THE LOAN FOR INSURANCE.  IBID. 

FN2  CONG. GLOBE, 37TH CONG., 3D SESS. 952 (1863); AND SEE H.R. REP.
NO. 2, 37TH CONG., 2D SESS.
..END :







KOVACS V. BREWER 356 U.S. 604 


NO. 200.  ARGUED APRIL 3, 1958.  - DECIDED MAY 26, 1958.  - 245 N.C.
630, 97 S.E.2D 96, JUDGMENT VACATED AND CAUSE REMANDED. 


IN 1951, A NEW YORK COURT GRANTED PETITIONER'S HUSBAND A DIVORCE AND
AWARDED CUSTODY OF THEIR FIVE-YEAR-OLD DAUGHTER TO HER PATERNAL
GRANDFATHER, WHO REMOVED THE CHILD TO NORTH CAROLINA, WHERE SHE HAS
SINCE RESIDED.  IN A PROCEEDING IN 1954, THE NEW YORK COURT MODIFIED
ITS DECREE AND GRANTED CUSTODY TO THE MOTHER.  FOURTEEN MONTHS LATER,
THE MOTHER SUED IN NORTH CAROLINA FOR CUSTODY OF THE CHILD, PRESENTING
A CERTIFIED COPY OF THE NEW YORK DECREE AND CLAIMING THAT IT WAS
ENTITLED TO "FULL FAITH AND CREDIT" IN NORTH CAROLINA, "EXCEPT AS TO
MATTERS SHOWING CHANGED CIRCUMSTANCES SINCE THE DATE OF SUCH DECREE." 
THE NORTH CAROLINA TRIAL COURT FOUND THAT THE WELFARE OF THE CHILD
DEMANDED THAT SHE REMAIN IN HER GRANDFATHER'S CUSTODY AND HELD THAT IT
WAS NOT BOUND TO GIVE EFFECT TO THE NEW YORK DECREE.  THE SUPREME COURT
OF NORTH CAROLINA SUSTAINED THE TRIAL COURT, DECLARING, APPARENTLY AS
AN ALTERNATIVE GROUND OF DECISION, THAT THE NEW YORK DECREE WAS NOT
BINDING BECAUSE THE DIVORCE COURT HAD NO JURISDICTION TO MODIFY ITS
ORIGINAL CUSTODY AWARD AFTER THE CHILD HAD BECOME A RESIDENT AND
DOMICILIARY OF NORTH CAROLINA.  HELD: THE CASE IS REMANDED TO THE NORTH
CAROLINA SUPREME COURT FOR CLARIFICATION OF ITS HOLDING, SO THAT THE
COURTS OF THAT STATE MAY HAVE AN OPPORTUNITY TO DETERMINE THE ISSUE OF
CHANGED CIRCUMSTANCES, IF THEY HAVE NOT ALREADY DONE SO. PP. 604-608. 

KOVACS V. BREWER. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ON JANUARY 17, 1951, A NEW YORK COURT GRANTED GEORGE BREWER, JR., A
DECREE OF DIVORCE FROM HIS WIFE, NOW AIDA KOVACS.  CUSTODY OF THEIR
FIVE-YEAR-OLD DAUGHTER, JANE, WAS AWARDED TO GEORGE BREWER, SR., THE
PATERNAL GRANDFATHER, PENDING DISCHARGE OF BREWER, JR., FROM THE NAVY. 
AS CONTEMPLATED BY THE DECREE, THE GRANDFATHER REMOVED THE CHILD TO HIS
HOME IN NORTH CAROLINA WHERE SHE HAS SINCE RESIDED.  IN NOVEMBER 1954
THE MOTHER ASKED THE NEW YORK DIVORCE COURT TO MODIFY ITS DECREE AND
AWARD HER CUSTODY OF THE CHILD.  ALTHOUGH THE FATHER AND GRANDFATHER
PRESENTED AFFIDAVITS THROUGH COUNSEL CHALLENGING THE MOTHER'S CLAIM,
THE COURT GRANTED CUSTODY TO HER.  IN MODIFYING ITS DECREE THE COURT
APPARENTLY RELIED, IN PART, ON FINDINGS THAT THE GRANDFATHER WAS ILL
WITH HEART TROUBLE AND DIABETES AND THAT THE LIVING ACCOMMODATIONS
WHICH HE WAS ABLE TO PROVIDE FOR THE CHILD WERE NOT AS SUITABLE AS
THOSE THEN OFFERED BY THE MOTHER. 

THE GRANDFATHER REFUSED TO SURRENDER THE CHILD, BUT THE MOTHER TOOK NO
STEPS TO ENFORCE HER CUSTODY AWARD UNTIL FEBRUARY 1956 - 14 MONTHS
AFTER THE DECREE HAD BEEN MODIFIED.  AT THAT TIME SHE BROUGHT THE
PRESENT ACTION IN A NORTH CAROLINA STATE COURT TO SECURE THE CHILD. 
(FN1)  SHE OFFERED A CERTIFIED COPY OF THE NEW YORK DECREE AND ASSERTED
THAT IT WAS "ENTITLED TO FULL FAITH AND CREDIT IN THE COURTS OF NORTH
CAROLINA EXCEPT AS TO MATTERS SHOWING CHANGED CIRCUMSTANCES SINCE THE
DATE OF SUCH DECREE."  THE FATHER AND GRANDFATHER AGAIN CHALLENGED HER
RIGHT TO THE CHILD.  THEY PRESENTED NUMEROUS AFFIDAVITS ATTESTING TO
FACTS WHICH THEY ARGUED DEMONSTRATED THAT THE CHILD'S BEST INTEREST
WOULD BE SERVED BY LEAVING HER IN NORTH CAROLINA WITH THE
GRANDPARENTS.  MANY OF THESE FACTS HAD BEEN PRESENTED TO THE NEW YORK
COURT AT THE TIME THE DIVORCE DECREE WAS MODIFIED, BUT NEW EVIDENCE WAS
ALSO OFFERED CONCERNING THE CHILD'S SURROUNDINGS, HER SCHOOL AND CHURCH
EXPERIENCES AND HER LIFE IN GENERAL, PARTICULARLY WITH REFERENCE TO THE
PERIOD THAT HAD ELAPSED BETWEEN THE TIME WHEN THE DIVORCE COURT
MODIFIED ITS DECREE AND THE DATE OF THE NORTH CAROLINA PROCEEDINGS. 
(FN2) 

AFTER HEARING THE CASE ON AFFIDAVITS, STIPULATIONS AND THE PLEADINGS,
THE TRIAL COURT MADE NUMEROUS FINDINGS.  AMONG OTHER THINGS, IT
DETERMINED THAT FOR MORE THAN A YEAR IMMEDIATELY PRECEDING THE HEARING
THE GRANDFATHER HAD REQUIRED NO MEDICAL CARE FOR HEART OR DIABETIC
AILMENTS AND WAS ABLE TO WORK AND TO PROPERLY CARE FOR HIS
GRANDDAUGHTER.  THE COURT ALSO FOUND THAT A 17-YEAR-OLD STEPSON, WHO
HAD BEEN RESIDING IN THE GRANDFATHER'S HOME AT THE TIME THE NEW YORK
DECREE WAS MODIFIED, HAD MOVED FROM THE HOME THUS LEAVING MORE SPACE
FOR THE REMAINING OCCUPANTS AND GIVING THE GRANDFATHER A BETTER
OPPORTUNITY TO PROVIDE FOR THE GRANDCHILD.  ON THE BASIS OF THESE AND
OTHER FINDINGS THE TRIAL COURT CONCLUDED THAT IT WAS "NOT BOUND BY OR
REQUIRED TO GIVE EFFECT TO THE DECREE OF THE COURT OF THE STATE OF NEW
YORK MADE IN 1954" AND THAT THE WELFARE OF THE CHILD DEMANDED THAT SHE
REMAIN UNDER THE GRANDFATHER'S CUSTODY IN THE ENVIRONMENT TO WHICH SHE
HAD BECOME ACCUSTOMED. 

ON APPEAL THE NORTH CAROLINA SUPREME COURT APPROVED THE TRIAL COURT'S
FINDINGS, AND WITHOUT SPECIFYING ANY PARTICULAR REASON UPHELD ITS
"CONCLUSION OF LAW."  THE COURT THEN WENT ON TO DECLARE, SEEMINGLY AS
AN ALTERNATIVE GROUND OF DECISION, THAT THE NEW YORK DECREE WAS NOT
BINDING BECAUSE THE DIVORCE COURT HAD NO JURISDICTION TO MODIFY ITS
ORIGINAL CUSTODY AWARD AFTER THE CHILD HAD BECOME A RESIDENT AND
DOMICILIARY OF NORTH CAROLINA.  245 N.C.  630, 97 S.E.2D 96.  WE
GRANTED CERTIORARI TO CONSIDER THE CLAIM THAT THE NORTH CAROLINA COURTS
HAD FAILED TO GIVE FULL FAITH AND CREDIT TO THE JUDICIAL PROCEEDINGS OF
ANOTHER STATE.  355 U.S. 810. 

IN THIS COURT THE PETITIONER, MRS. KOVACS, CONTENDS (1) THAT THE NEW
YORK DIVORCE COURT HAD JURISDICTION TO MODIFY ITS DECREE BY AWARDING
HER CUSTODY OF THE CHILD, (2) THAT IN ANY EVENT THE QUESTION OF
JURISDICTION WAS RES JUDICATA IN THE NORTH CAROLINA COURTS BECAUSE BOTH
THE FATHER AND GRANDFATHER HAD APPEARED IN THE NEW YORK PROCEEDING, AND
(3) THAT THE NORTH CAROLINA COURTS FAILED TO GIVE THE CUSTODY DECREE,
AS MODIFIED, THE FAITH AND CREDIT REQUIRED BY THE FEDERAL CONSTITUTION
AND STATUTE.  (FN3)  SHE ARGUES THAT THE NORTH CAROLINA COURTS WERE
OBLIGATED TO GIVE THE CUSTODY DECREE THE SAME EFFECT AS IT HAD IN NEW
YORK, A QUESTION WHICH WE RESERVED IN NEW YORK EX REL. HALVEY V.
HALVEY, 330 U.S. 610, 615-616.  AS PRESENTED, THE CASE OBVIOUSLY RAISES
DIFFICULT AND IMPORTANT QUESTIONS OF CONSTITUTIONAL LAW, QUESTIONS
WHICH WE SHOULD POSTPONE DECIDING AS LONG AS A REASONABLE ALTERNATIVE
EXISTS.  (FN4) 

WHATEVER EFFECT THE FULL FAITH AND CREDIT CLAUSE MAY HAVE WITH
RESPECT TO CUSTODY DECREES, IT IS CLEAR, AS THE COURT STATED IN HALVEY,
"THAT THE STATE OF THE FORUM HAS AT LEAST AS MUCH LEEWAY TO DISREGARD
THE JUDGMENT, TO QUALIFY IT, OR TO DEPART FROM IT AS DOES THE STATE
WHERE IT WAS RENDERED."  330 U.S., AT 615.  PETITIONER CONCEDES THAT A
CUSTODY DECREE IS NOT RES JUDICATA IN NEW YORK IF CHANGED CIRCUMSTANCES
CALL FOR A DIFFERENT ARRANGEMENT TO PROTECT THE CHILD'S HEALTH AND
WELFARE.  (FN5)  IN THE COURTS BELOW THE QUESTION OF CHANGED
CIRCUMSTANCES WAS RAISED IN THE PLEADINGS, CONSIDERABLE EVIDENCE WAS
INTRODUCED ON THAT ISSUE, AND THE TRIAL COURT MADE A NUMBER OF FINDINGS
WHICH DEMONSTRATED THAT THE FACTS MATERIAL TO THE PROPER CUSTODY OF THE
CHILD WERE NO LONGER THE SAME IN 1956 AS IN 1954 WHEN THE NEW YORK
DECREE WAS MODIFIED.  AND THOUGH IT IS NOT CLEAR FROM THE OPINION OF
THE NORTH CAROLINA SUPREME COURT, IT MAY BE, PARTICULARLY IN VIEW OF
THIS BACKGROUND, THAT IT INTENDED TO DECIDE THE CASE, AT LEAST
ALTERNATIVELY, ON THAT BASIS.  UNDER ALL THE CIRCUMSTANCES WE THINK IT
ADVISABLE TO REMAND TO THE NORTH CAROLINA COURTS FOR CLARIFICATION,
AND, IF THEY HAVE NOT ALREADY DECIDED, SO THEY MAY HAVE AN OPPORTUNITY
TO DETERMINE THE ISSUE OF CHANGED CIRCUMSTANCES.  CF. MINNESOTA V.
NATIONAL TEA CO., 309 U.S. 551; SPECTOR MOTOR CO. V. MCLAUGHLIN, 323
U.S. 101, 105.  IF THOSE COURTS PROPERLY FIND THAT CHANGED CONDITIONS
MAKE IT TO THE CHILD'S BEST INTEREST FOR THE GRANDFATHER TO HAVE
CUSTODY, DECISION OF THE CONSTITUTIONAL QUESTIONS NOW BEFORE US WOULD
BE UNNECESSARY.  THOSE QUESTIONS WE EXPLICITLY RESERVE WITHOUT
EXPRESSLY OR IMPLIEDLY INDICATING ANY VIEWS ABOUT THEM. 

THE JUDGMENT OF THE SUPREME COURT OF NORTH CAROLINA IS VACATED AND
THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  UNDER NORTH CAROLINA LAW "CUSTODY OF CHILDREN OF PARENTS WHO
HAVE BEEN DIVORCED OUTSIDE OF NORTH CAROLINA  ...  MAY BE DETERMINED IN
A SPECIAL PROCEEDING INSTITUTED BY EITHER OF SAID PARENTS ...  ."  N.C.
GEN. STAT. ANN., 1950, SEC. 50-13. 

FN2  UNLIKE THE SITUATION IN THE NEW YORK MODIFICATION PROCEEDING,
THE CHILD, FATHER AND GRANDFATHER WERE ALL PRESENT BEFORE THE NORTH
CAROLINA COURT. 

FN3  ART. IV, SEC. 1, DECLARES:  "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."  BY STATUTE CONGRESS HAS PROVIDED
THAT JUDGMENTS "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."  28 U.S.C. SEC. 1738. 

FN4  THIS APPROACH IS REINFORCED HERE BY THE FACT THAT NEITHER THE
FATHER NOR THE GRANDFATHER APPEARED OR SUBMITTED A BRIEF IN THIS COURT
IN SUPPORT OF THEIR RIGHT TO CUSTODY. 

FN5  THERE IS SOME INDICATION THAT IN NEW YORK A LOCAL CUSTODY DECREE
MAY BE MODIFIED WHENEVER THE BEST INTEREST OF THE CHILD DEMANDS,
WHETHER THERE HAVE BEEN CHANGED CIRCUMSTANCES OR NOT.  SEE, E.G., 6A
GILBERT-BLISS' N.Y. CIV. PRAC., 1944, SEC. 1170.  CF. BACHMAN V.
MEJIAS, 1 N.Y.2D 575, 580, 136 N.E.2D 866, 868; SUTERA V. SUTERA, 1
APP. DIV. 2D 356, 358, 150 N.Y.S.2D 448, 451-452. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

AT STAKE IN THIS CASE IS THE WELFARE OF A CHILD.  MORE IMMEDIATELY
THE QUESTION BEFORE US IS WHAT RESTRICTION, IF ANY, DOES THE
CONSTITUTION OF THE UNITED STATES IMPOSE ON A STATE COURT WHEN IT IS
DETERMINING THE CUSTODY OF A CHILD BEFORE IT.  THE CONTEST HERE FOR THE
CHILD'S CUSTODY IS BETWEEN HER MOTHER AND HER GRANDPARENTS:  A MOTHER
WHOM A NEW YORK COURT, IN DIVORCE PROCEEDINGS WHILE THE CHILD WAS
PRESENT IN NEW YORK, DID NOT FIND TO BE A SUITABLE CUSTODIAN, AND THE
GRANDPARENTS, LIVING IN NORTH CAROLINA, TO WHOM THE NEW YORK COURT
DECREED THE CUSTODY OF THE CHILD AND WITH WHOM THE CHILD, NOW TWELVE
YEARS OF AGE, HAS LIVED HAPPILY FOR THE LAST SIX AND ONE-HALF YEARS.  A
SECOND NEW YORK DECREE, RENDERED WHILE THE CHILD WAS IN NORTH CAROLINA,
AWARDED HER CUSTODY TO THE MOTHER.  A NORTH CAROLINA COURT, AFTER A
FULL HEARING, WITH ALL THE RELEVANT PARTIES, INCLUDING THE CHILD,
BEFORE IT, HAS FOUND THAT THE CHILD'S WELFARE PRECLUDES SEVERANCE OF
THE CHILD'S CUSTODY FROM THE GRANDPARENTS. 

THE FACTS ARE THESE:  PETITIONER AND GEORGE BREWER, JR., SON OF
RESPONDENT, WERE MARRIED IN NEW YORK CITY IN 1945.  A CHILD, JANE
ELIZABETH, WAS BORN TO THEM IN 1946.  IN 1950 BREWER, JR., INSTITUTED A
DIVORCE ACTION AGAINST PETITIONER IN NEW YORK, AND ON JANUARY 17, 1951,
THE NEW YORK COURT GRANTED HIM A DIVORCE.  FINDING THAT "THE BEST
INTERESTS OF THE CHILD" SO REQUIRED, THAT COURT AWARDED CUSTODY OF JANE
ELIZABETH TO RESPONDENT UNTIL BREWER, JR., SHOULD BE DISCHARGED FROM
THE NAVY, AT WHICH TIME HE MIGHT ASSUME SOLE CUSTODY.  THE CHILD WAS AT
THAT TIME BOTH DOMICILED AND RESIDENT IN NEW YORK.  AFTER THE DECREE
WAS RENDERED PETITIONER WENT INTO HIDING WITH THE CHILD.  RESPONDENT
SECURED CONTROL OF THE CHILD BY WRIT OF HABEAS CORPUS AFTER SHE WAS
FOUND IN SEPTEMBER 1951 AND TOOK HER TO HIS HOME IN NORTH CAROLINA,
WHERE THE CHILD HAS BEEN LIVING WITH RESPONDENT AND HIS WIFE UNTIL THE
PRESENT TIME.  BREWER, JR., THE CHILD'S FATHER AND RESPONDENT'S SON, IS
STILL IN THE NAVY. 

IN 1954, AFTER HAVING MARRIED ONE KOVACS, PETITIONER APPLIED TO THE
NEW YORK COURT FOR A MODIFICATION OF THE DIVORCE DECREE SO THAT CUSTODY
OF THE CHILD BE AWARDED TO HER.  IN DECEMBER 1954 THE NEW YORK COURT,
THROUGH A JUDGE OTHER THAN THE ONE WHO HAD RENDERED THE ORIGINAL
DECREE, AWARDED TO PETITIONER CUSTODY OF THE CHILD, WHO WAS NOT BEFORE
THE COURT BUT IN NORTH CAROLINA, ON THE GROUND THAT "THE ACCOMMODATIONS
AND SURROUNDINGS OF THE MOTHER ARE ACCEPTABLE FOR THE WELFARE OF THE
INFANT AND WOULD BE MORE DESIRABLE FOR AN EIGHT YEAR OLD GIRL, WHOSE
BRINGING UP BELONGS TO HER MOTHER." 

RESPONDENT REFUSED TO DELIVER THE CHILD TO PETITIONER AS DIRECTED BY
THE NEW YORK DECREE.  IN FEBRUARY 1956 PETITIONER BROUGHT THIS SUIT IN
A NORTH CAROLINA COURT, SEEKING TO HAVE RESPONDENT COMPELLED TO
SURRENDER CUSTODY OF THE CHILD TO PETITIONER AND TO HAVE CUSTODY
AWARDED TO PETITIONER BY THE COURT.  AFTER A FULL HEARING ON THE MERITS
OF THE QUESTION OF THE CHILD'S PROPER CUSTODY, AT WHICH PETITIONER,
RESPONDENT, BREWER, JR., AND THE CHILD WERE PRESENT, THE NORTH CAROLINA
COURT DENIED THE RELIEF REQUESTED BY PETITIONER; IT DETERMINED THAT IT
WAS NOT REQUIRED TO GIVE EFFECT TO THE 1954 NEW YORK DECREE AND AWARDED
CUSTODY OF THE CHILD TO RESPONDENT.*  THE SUPREME COURT OF NORTH
CAROLINA AFFIRMED, 245 N.C. 630, 97 S.E.2D 96, HOLDING THAT SINCE THE
CHILD WAS NOT BEFORE THE NEW YORK COURT WHEN IT RENDERED THE 1954
DECREE, THAT DECREE WAS WITHOUT EXTRATERRITORIAL EFFECT. 

*AMONG THE MANY RELEVANT CIRCUMSTANCES THE COURT CANVASSED AT THE
HEARING WERE THE AGE, HEALTH, RELIGIOUS ACTIVITIES, AND COMMUNITY
INTERESTS OF RESPONDENT; THE SUITABILITY OF HIS RESIDENCE FROM THE
STANDPOINT OF SIZE, LOCATION, APPEARANCE, AND EQUIPMENT; THE TRAINING
AND INTERESTS OF RESPONDENT'S WIFE; THE CHILD'S RELIGIOUS AND
SCHOLASTIC RECORD, ASSOCIATIONS, AND HEALTH; AND THE EDUCATIONAL AND
RECREATIONAL FACILITIES AVAILABLE TO THE CHILD.  ON THE BASIS OF THE
EVIDENCE, THE COURT MADE THE FOLLOWING FINDINGS OF FACT, AMONG OTHERS: 

"13.  THAT THE PETITIONER, AIDA KOVACS, IS NOT A FIT AND PROPER
PERSON TO HAVE THE CARE, CUSTODY AND CONTROL OF THE MINOR, JANE
ELIZABETH BREWER. 

"14.  THAT GEORGE A. BREWER, SR. IS A MAN OF EXCELLENT CHARACTER,
GOOD HABITS AND CONDUCT, AND IS A FIT AND SUITABLE PERSON TO HAVE THE
CARE, CUSTODY AND CONTROL OF THE MINOR, JANE ELIZABETH BREWER. 

"15.  THAT THE WELFARE, INTEREST AND DEVELOPMENT OF THE CHILD WILL BE
MATERIALLY PROMOTED BY ALLOWING HER TO REMAIN IN THE CUSTODY OF GEORGE
A. BREWER, SR. AND IN THE ENVIRONMENT TO WHICH SHE HAS BECOME
ACCUSTOMED AND UPON WHICH IN A MEASURE SHE DEPENDS." 

WHILE THERE IS SUBSTANTIAL ACCORD AMONG THE COURTS AS TO THE
PRACTICAL OUTCOME OF CASES INVOLVING THE EXTRATERRITORIAL EFFECT OF
CUSTODY DECREES, THERE HAS BEEN NO LITTLE CONFUSION AND LACK OF CLARITY
IN THE LANGUAGE THEY HAVE EMPLOYED IN JUSTIFYING THOSE RESULTS.  THE
UNCRITICAL RELIANCE OF COURTS, IN DEALING WITH THE PROBLEM RAISED BY
THIS CASE, UPON SUCH CONCEPTS AS "CHANGE OF CIRCUMSTANCES" HAS LED ONE
LEARNED COMMENTATOR TO REMARK THAT "WORDS HAVE BEEN THE CHIEF TROUBLE
MAKERS IN THIS FIELD."  STANSBURY, CUSTODY AND MAINTENANCE LAW ACROSS
STATE LINES, 10 LAW & CONTEMP.  PROB.  819, 826.  ALTHOUGH THE QUESTION
PRESENTED HERE IS A NARROW ONE, IT IS OF A KIND THAT CONFRONTS STATE
COURTS WITH GREAT FREQUENCY:  DOES THE FEDERAL CONSTITUTION REQUIRE
NORTH CAROLINA TO GIVE EFFECT TO THE SECOND NEW YORK DECREE, AWARDING
CUSTODY OF THE CHILD TO THE PETITIONER?  THE EVIDENT IMPLICATION OF THE
COURT'S OPINION TODAY IS THAT, UNLESS "CIRCUMSTANCES HAVE CHANGED"
SINCE THE LATTER DECREE, IT MUST BE GIVEN FULL FAITH AND CREDIT. 

IT WAS THE PURPOSE OF THE FULL FAITH AND CREDIT CLAUSE TO PRECLUDE
DISSATISFIED LITIGANTS FROM TAKING ADVANTAGE OF THE FEDERAL CHARACTER
OF THE NATION BY RELITIGATING IN ONE STATE ISSUES THAT HAD BEEN DULY
DECIDED IN ANOTHER.  THE CLAUSE WAS THUS DESIGNED TO PROMOTE A MAJOR
POLICY OF THE LAW: THAT THERE BE CERTAINTY AND FINALITY AND AN END TO
HARASSING LITIGATION.  BUT WHEN COURTS ARE CONFRONTED WITH THE
RESPONSIBILITY OF DETERMINING THE PROPER CUSTODY OF CHILDREN, A MORE
IMPORTANT CONSIDERATION ASSERTS ITSELF TO WHICH REGARD FOR CURBING
LITIGIOUS STRIFE IS SUBORDINATE - NAMELY, THE WELFARE OF THE CHILD. 
THAT, IN THE FAMILIAR PHRASE USED BY THE SUPREME COURT OF NORTH
CAROLINA IN THIS CASE, "IS THE POLAR STAR BY WHICH THE COURTS MUST BE
GUIDED IN AWARDING CUSTODY."  245 N.C., AT 635, 97 S.E.2D, AT 100-101. 
WHEN THE CARE AND PROTECTION OF THE MINORS WITHIN THEIR BORDERS FALLS
TO STATES THEY MUST BE FREE TO DO "WHAT IS BEST FOR THE INTEREST OF THE
CHILD," FINLAY V. FINLAY, 240 N.Y. 429, 433, 148 N.E. 624, 626
(1925)(PER CARDOZO, J.); SEE QUEEN V. GYNGALL, (1893) 2 Q.B. 232, 241
("THE COURT IS PLACED IN A POSITION  ...  TO ACT AS SUPREME PARENT OF
CHILDREN, AND MUST EXERCISE THAT JURISDICTION IN THE MANNER IN WHICH A
WISE, AFFECTIONATE, AND CAREFUL PARENT WOULD ACT FOR THE WELFARE OF THE
CHILD"). 

BECAUSE THE CHILD'S WELFARE IS THE CONTROLLING GUIDE IN A CUSTODY
DETERMINATION, A CUSTODY DECREE IS OF AN ESSENTIALLY TRANSITORY
NATURE.  THE PASSAGE OF EVEN A RELATIVELY SHORT PERIOD OF TIME MAY WORK
GREAT CHANGES, ALTHOUGH DIFFICULT OF ASCERTAINMENT, IN THE NEEDS OF A
DEVELOPING CHILD.  SUBTLE, ALMOST IMPERCEPTIBLE, CHANGES IN THE FITNESS
AND ADAPTABILITY OF CUSTODIANS TO PROVIDE FOR SUCH NEEDS MAY DEVELOP
WITH CORRESPONDING RAPIDITY.  A COURT THAT IS CALLED UPON TO DETERMINE
TO WHOM AND UNDER WHAT CIRCUMSTANCES CUSTODY OF AN INFANT WILL BE
GRANTED CANNOT, IF IT IS TO PERFORM ITS FUNCTION RESPONSIBLY, BE BOUND
BY A PRIOR DECREE OF ANOTHER COURT, IRRESPECTIVE OF WHETHER "CHANGES IN
CIRCUMSTANCES" ARE OBJECTIVELY PROVABLE.  TO SAY THIS IS NOT TO SAY
THAT A COURT SHOULD PAY NO ATTENTION TO A PRIOR DECREE OR TO THE STATUS
QUO ESTABLISHED BY IT.  THESE ARE, OF COURSE, AMONG THE RELEVANT AND
EVEN IMPORTANT CIRCUMSTANCES THAT A COURT SHOULD CONSIDER WHEN
EXERCISING A JUDGMENT ON WHAT THE WELFARE OF A CHILD BEFORE IT
REQUIRES.  SEE NEW YORK EX REL. ALLEN V. ALLEN, 105 N.Y. 628, 11 N.E.
143, 144 (1887)(ILLINOIS CUSTODY DECREE WAS "A FACT OR CIRCUMSTANCE
BEARING UPON THE DISCRETION TO BE EXERCISED WITHOUT DICTATING OR
CONTROLLING IT"). 

IN SHORT, BOTH THE UNDERLYING PURPOSE OF THE FULL FAITH AND CREDIT
CLAUSE AND THE NATURE OF THE DECREES MILITATE STRONGLY AGAINST A
CONSTITUTIONALLY ENFORCED REQUIREMENT OF RESPECT TO FOREIGN CUSTODY
DECREES.  NEW YORK ITSELF, THE STATE FOR WHOSE DECREE FULL FAITH AND
CREDIT IS HERE DEMANDED, HAS REJECTED THE APPLICABILITY OF THAT
REQUIREMENT TO CUSTODY DECREES.  SEE, E.G., BACHMAN V. MEJIAS, 1 N.Y.2D
575, 580, 136 N.E.2D 866, 868 (1956) ("THE FULL FAITH AND CREDIT CLAUSE
DOES NOT APPLY TO CUSTODY DECREES"); NEW YORK EX REL.  HERZOG V.
MORGAN, 287 N.Y. 317, 320, 39 N.E.2D 255, 256 (1942); NEW YORK EX REL.
ALLEN V. ALLEN, SUPRA; HICKS V. BRIDGES, 2 APP. DIV. 2D 335, 339, 155
N.Y.S.2D 746, 751 (1956); NEW YORK EX REL. KNIFFIN V. KNIGHT, 184 MISC.
545, 550, 56 N.Y.S.2D 108, 133 (1945).  AND WRITERS ON THE SUBJECT HAVE
OBSERVED A MARKED TENDENCY AMONG OTHER STATE COURTS TO ARRIVE AT THIS
SAME CONCLUSION, ALTHOUGH OFTEN SPELLING OUT THEIR JUDGMENTS IN
TRADITIONAL TERMS.  SEE EHRENZWEIG, INTERSTATE RECOGNITION OF CUSTODY
DECREES, 51 MICH. L. REV. 345; STANSBURY, SUPRA. 

THIS CASE VIVIDLY ILLUSTRATES THE EVIL OF REQUIRING ONE COURT, WHICH
MAY BE PECULIARLY WELL-SITUATED FOR MAKING THE DELICATE DETERMINATION
OF WHAT IS IN THE CHILD'S BEST INTERESTS, TO DEFER TO A PRIOR FOREIGN
DECREE, WHICH MAY WELL BE THE RESULT OF A SUPERFICIAL OR ABSTRACT
JUDGMENT ON WHAT THE CHILD'S WELFARE REQUIRES.  IN THIS CASE, THE NEW
YORK DECREE WAS RENDERED IN A PROCEEDING AT WHICH THE CHILD WAS NOT
PRESENT - INDEED, WAS NOT EVEN WITHIN THE STATE - BY A JUDGE WHO, SO
FAR AS THE RECORD SHOWS, HAD NEVER SEEN HER.  WHATEVER FORCE SUCH A
DECREE MIGHT HAVE IN NEW YORK, THE FEDERAL CONSTITUTION AT ALL EVENTS
DOES NOT REQUIRE ITS BLIND ACCEPTANCE ELSEWHERE.  THE MINIMUM NEXUS
BETWEEN COURT AND CHILD THAT MUST EXIST BEFORE THE COURT'S AWARD OF THE
CHILD'S CUSTODY SHOULD CARRY ANY AUTHORITY IS THAT THE COURT SHOULD
HAVE BEEN IN A POSITION ADEQUATELY TO INFORM ITSELF REGARDING THE NEEDS
AND DESIRES OF THE CHILD, OF WHAT IS IN THE CHILD'S BEST INTERESTS. 
AND THE VERY LEAST THAT SHOULD BE EXPECTED IN ORDER THAT THE
INVESTIGATION BE RESPONSIBLY THOROUGH AND ENLIGHTENING IS THAT THE
CHILD BE PHYSICALLY WITHIN THE JURISDICTION OF THE COURT AND SO
AVAILABLE AS A SOURCE FOR ARRIVING AT SOLOMON'S JUDGMENT.  SEE
STUMBERG, THE STATUS OF CHILDREN IN THE CONFLICT OF LAWS, 8 U. OF CHI. 
L. REV. 42, 56, 58, 62.  TO DISPENSE WITH THIS REQUIREMENT IS SERIOUSLY
TO UNDERMINE THE CONSCIENTIOUS EFFORTS THAT MOST STATE COURTS EXPEND TO
CARRY OUT THEIR FUNCTIONS IN CHILD CUSTODY CASES IN A RESPONSIBLE WAY. 

WHATEVER MAY BE THE COURT'S FORMAL DISAVOWAL, A FEDERAL QUESTION CAN
BE FOUND FOR REVIEW HERE ONLY IF THE COURT REQUIRES, HOWEVER
IMPLICITLY, THAT NORTH CAROLINA GIVE FULL FAITH AND CREDIT TO THE
SECOND NEW YORK DECREE.  FOR IF THE SUPREME COURT OF NORTH CAROLINA IS
OBLIGED TO FIND THAT "CIRCUMSTANCES HAVE CHANGED" SINCE THE SECOND NEW
YORK DECREE IN ORDER NOT TO BE BOUND BY IT, IT MUST BE THAT THAT DECREE
HAS LEGAL SIGNIFICANCE UNDER THE FULL FAITH AND CREDIT CLAUSE.  THE
STATE SUPREME COURT HAS ALREADY DECLARED UNQUALIFIEDLY - NOT AS AN
"ALTERNATIVE GROUND" BUT AS A NECESSARY DISPOSITION OF A CONSTITUTIONAL
CLAIM - THAT IT IS NOT BOUND BY THE NEW YORK DECREE.  BUT NOW THE NORTH
CAROLINA DECREE IS ALLOWED TO STAND ONLY IF THE HIGHEST COURT OF THAT
STATE WILL SHELTER ITS BASIS FOR LEAVING THE CUSTODY OF THIS CHILD TO
THE GRANDPARENTS, UNDER WHOSE NURTURING CARE SHE HAS BEEN ALL THESE
YEARS, BY LABELING THE FACTORS THAT HAVE LED TO THIS DETERMINATION AS
"CHANGED CIRCUMSTANCES" FROM WHAT THE ABSENTEE COURT HAD FOUND. 
INEVITABLY THIS IS TO OPEN THE DOOR WIDE TO EVASION OF THE FULL FAITH
AND CREDIT CLAUSE AFTER FINDING IN IT A COMMAND REGARDING CUSTODY
DECREES THAT IT DOES NOT CARRY.  THE SUPREME COURT OF ERRORS OF
CONNECTICUT POINTED OUT ALMOST FIFTY YEARS AGO THAT, "AS A FINDING OF
CHANGED CONDITIONS IS ONE EASILY MADE WHEN A COURT IS SO INCLINED, AND
PLAUSIBLE GROUNDS THEREFOR CAN QUITE GENERALLY BE FOUND, IT FOLLOWS
THAT THE RECOGNITION EXTRATERRITORIALLY WHICH CUSTODY ORDERS WILL
RECEIVE OR CAN COMMAND IS LIABLE TO BE MORE THEORETICAL THAN OF GREAT
PRACTICAL CONSEQUENCE."  MORRILL V. MORRILL, 83 CONN. 479, 492-493, 77
A. 1, 6 (1910).   SEE ALSO STUMBERG, PRINCIPLES OF CONFLICT OF LAWS (2D
ED.), 328-329. 

THIS COURT SHOULD INDEED BE RIGOROUS IN AVOIDING CONSTITUTIONAL
ISSUES WHERE A REASONABLE ALTERNATIVE EXISTS.  BUT A CONSTITUTIONAL
ISSUE CANNOT BE, AND IS NOT, AVOIDED WHEN A RULING IS MADE THAT
NECESSARILY - AND NOT THE LESS BECAUSE IT DOES SO IMPLIEDLY - INCLUDES
IT.  TO WHAT END MUST THE SUPREME COURT OF NORTH CAROLINA JUSTIFY ITS
DETERMINATION THAT THE CHILD SHOULD REMAIN WITH HER GRANDFATHER, BY
FINDING THAT THERE HAS BEEN A CHANGE FROM THE CONDITIONS UNDER WHICH
THE NEW YORK DECREE WAS RENDERED, UNLESS IN DEFAULT OF SUCH A
JUSTIFICATION THAT COURT MUST BE HELD TO HAVE DISREGARDED ITS
CONSTITUTIONAL DUTY TO GIVE FULL FAITH AND CREDIT TO THE NEW YORK
DECREE?  IT THIS CONSTRUCTION AS TO THE EXTRATERRITORIAL ENFORCEABILITY
OF THE IN ABSENTIA NEW YORK DECREE IS NOT THE NECESSARILY IMPLIED
MEANING OF TODAY'S DECISION, IT CAN MEAN ONLY THAT THIS COURT IS
ENFORCING THE LOCAL NORTH CAROLINA LAW OF CONFLICTS AS TO THE RESPECT
TO BE PAID THE PRIOR NEW YORK DECREE. 

TO BE SURE, THERE ARE SITUATIONS WHERE THE COURT PROPERLY DISAVOWS
PASSING ON A CONSTITUTIONAL QUESTION BECAUSE IT IS NOT CLEAR WHETHER IT
IS HERE.  IF A STATE COURT JUDGMENT RESTS ON AN UNCLEAR ADMIXTURE OF
FEDERAL AND STATE GROUNDS AND THEREFORE DOES NOT OF ITSELF DISCLOSE THE
REQUIRED FEDERAL QUESTION AS A BASIS FOR THIS COURT'S JURISDICTION, THE
AMBIGUITY MAY BE REMOVED BY REMANDING THE CASE TO THE STATE COURT FOR A
CLARIFYING OPINION OR AN APPROPRIATE CERTIFICATE.  BUT SURELY IT CANNOT
BE SAID OF THE DECISION UNDER REVIEW, AS WAS TRUE IN MINNESOTA V.
NATIONAL TEA CO., 309 U.S. 551, 555, THAT "THERE IS CONSIDERABLE
UNCERTAINTY AS TO THE PRECISE GROUNDS FOR THE DECISION (OF THE STATE
COURT)."  ANY UNCERTAINTY IS HERE INTERPOLATED; THE NORTH CAROLINA
OPINION CARRIES NO AMBIGUITY.  WHEN THIS CASE GOES BACK TO THE NORTH
CAROLINA SUPREME COURT, THAT COURT, WITH ENTIRE RESPECT FOR THIS
COURT'S ACTION, ACCEPTING THE COURT'S FORMAL DISAVOWAL, MAY SAY IT
RIGHTFULLY EXERCISED ITS JURISDICTION UNDER LOCAL LAW IN NOT BEING
CONCERNED WITH "CHANGED CIRCUMSTANCES" RELATING TO THE ABSENTEE NEW
YORK DECREE IN 1954, BECAUSE THE NORTH CAROLINA COURT, WITH THE CHILD
BEFORE IT, ON ITS VIEW OF CONTROLLING NORTH CAROLINA LAW, NEED JUSTIFY
ITS CUSTODIAL DECREE ONLY BY CONSIDERING WHETHER THE CHILD'S INTERESTS
REQUIRE A CHANGE IN ITS CUSTODY FROM THE PRESENT PROPITIOUS
CIRCUMSTANCES.  AND THIS FOR THE REASON THAT THE COURT PURPORTS NOT TO
SUGGEST TO THE NORTH CAROLINA COURT ITS DUTY UNDER THE UNITED STATES
CONSTITUTION TO RESPECT THE NEW YORK DECREE OF 1954 UNLESS THERE BE A
FINDING THAT THE CIRCUMSTANCES ON WHICH THAT DECREE WAS BASED HAVE
CHANGED. 

I WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF NORTH CAROLINA. 
..END :










INTERNATIONAL ASSOCIATION OF MACHINISTS V. GONZALES 356 U.S. 617 


NO. 31.  ARGUED DECEMBER 12, 1957 - DECIDED MAY 26, 1958 - 142 CAL. APP.
2D 207, 298 P.2D 92, AFFIRMED. 


CLAIMING TO HAVE BEEN EXPELLED FROM MEMBERSHIP IN AN INTERNATIONAL
UNION AND ITS LOCAL UNION IN VIOLATION OF HIS RIGHTS UNDER THE
CONSTITUTIONS AND BY-LAWS OF THE UNIONS, A FORMER UNION MEMBER SUED IN
A CALIFORNIA STATE COURT FOR RESTORATION OF HIS MEMBERSHIP AND FOR
DAMAGES FOR HIS ILLEGAL EXPULSION.  THE COURT ENTERED JUDGMENT ORDERING
HIS REINSTATEMENT AND AWARDING HIM DAMAGES FOR LOST WAGES AND PHYSICAL
AND MENTAL SUFFERING.  HELD:  THE NATIONAL LABOR RELATIONS ACT AS
AMENDED, DOES NOT EXCLUDE THIS EXERCISE OF STATE POWER, AND THE
JUDGMENT IS AFFIRMED.  PP. 618-623. 

(A)  THE PROTECTION OF UNION MEMBERS IN THEIR CONTRACTUAL RIGHTS AS
MEMBERS HAS NOT BEEN UNDERTAKEN BY FEDERAL LAW, AND STATE POWER TO
ORDER REINSTATEMENT IN A UNION IS NOT PRECLUDED BY THE FACT THAT THE
UNION'S CONDUCT MAY ALSO INVOLVE AN UNFAIR LABOR PRACTICE AND THERE IS
A REMOTE POSSIBILITY OF CONFLICT WITH ENFORCEMENT OF NATIONAL POLICY BY
THE NATIONAL LABOR RELATIONS BOARD.  PP. 618-620. 

(B)  LIKEWISE, A STATE COURT CAN AWARD DAMAGES FOR BREACH OF THE
CONTRACT BY WRONGFUL OUSTER, SINCE, EVEN IF THE BOARD COULD AWARD BACK
PAY, IT COULD NOT COMPENSATE FOR OTHER INJURIES SUFFERED BY AN OUSTED
UNION MEMBER, AND THE DANGER OF CONFLICT WITH FEDERAL POLICY IS NO
GREATER THAN FROM AN ORDER OF REINSTATEMENT.  PP. 620-623. 

INTERNATIONAL ASSOCIATION OF MACHINISTS ET AL. V. GONZALES. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

CLAIMING TO HAVE BEEN EXPELLED FROM MEMBERSHIP IN THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND ITS LOCAL NO. 68 IN VIOLATION OF HIS
RIGHTS UNDER THE CONSTITUTION AND BY-LAWS OF THE UNIONS, RESPONDENT, A
MARINE MACHINIST, BROUGHT THIS SUIT AGAINST THE INTERNATIONAL AND
LOCAL, TOGETHER WITH THEIR OFFICERS, IN A SUPERIOR COURT IN CALIFORNIA
FOR RESTORATION OF HIS MEMBERSHIP IN THE UNIONS AND FOR DAMAGES DUE TO
HIS ILLEGAL EXPULSION.  THE CASE WAS TRIED TO THE COURT, AND, ON THE
BASIS OF THE PLEADINGS, EVIDENCE, AND ARGUMENT OF COUNSEL, DETAILED
FINDINGS OF FACT WERE MADE, CONCLUSIONS OF LAW DRAWN, AND A JUDGMENT
ENTERED ORDERING THE REINSTATEMENT OF RESPONDENT AND AWARDING HIM
DAMAGES FOR LOST WAGES AS WELL AS FOR PHYSICAL AND MENTAL SUFFERING. 
THE JUDGMENT WAS AFFIRMED BY THE DISTRICT COURT OF APPEAL, 142 CAL.
APP. 2D 207, 298 P.2D 92, AND THE SUPREME COURT OF CALIFORNIA DENIED A
PETITION FOR HEARING.  WE BROUGHT THE CASE HERE, 352 U.S. 966, SINCE IT
PRESENTED ANOTHER IMPORTANT QUESTION CONCERNING THE EXTENT TO WHICH THE
NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, AS AMENDED, 29 U.S.C. SECS.
141-188, HAS EXCLUDED THE EXERCISE OF STATE POWER. 

THE CRUX OF THE CLAIM SUSTAINED BY THE CALIFORNIA COURT WAS THAT
UNDER CALIFORNIA LAW MEMBERSHIP IN A LABOR UNION CONSTITUTES A CONTRACT
BETWEEN THE MEMBER AND THE UNION, THE TERMS OF WHICH ARE GOVERNED BY
THE CONSTITUTION AND BY-LAWS OF THE UNION, AND THAT STATE LAW PROVIDES,
THROUGH MANDATORY REINSTATEMENT AND DAMAGES, A REMEDY FOR BREACH OF
SUCH CONTRACT THROUGH WRONGFUL EXPULSION.  THIS CONTRACTUAL CONCEPTION
OF THE RELATION BETWEEN A MEMBER AND HIS UNION WIDELY PREVAILS IN THIS
COUNTRY AND HAS RECENTLY BEEN ADOPTED BY THE HOUSE OF LORDS IN BONSOR
V. MUSICIANS' UNION, (1956) A.C. 104.  IT HAS BEEN THE LAW OF
CALIFORNIA FOR AT LEAST HALF A CENTURY.  SEE DINGWALL V. AMALGAMATED
ASSN. OF STREET R. EMPLOYEES, 4 CAL. APP. 565, 88 P. 597.  THOUGH AN
UNINCORPORATED ASSOCIATION, A LABOR UNION IS FOR MANY PURPOSES GIVEN
THE RIGHTS AND SUBJECTED TO THE OBLIGATIONS OF A LEGAL ENTITY.  SEE
UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344, 383-392; UNITED
STATES V. WHITE, 322 U.S. 694, 701-703. 

THAT THE POWER OF CALIFORNIA TO AFFORD THE REMEDY OF REINSTATEMENT
FOR THE WRONGFUL EXPULSION OF A UNION MEMBER HAS NOT BEEN DISPLACED BY
THE TAFT-HARTLEY ACT IS ADMITTED BY PETITIONERS.  QUITE PROPERLY THEY
DO NOT ATTACK SO MUCH OF THE JUDGMENT AS ORDERS RESPONDENT'S
REINSTATEMENT.  AS GARNER V. TEAMSTERS UNION, 346 U.S. 485, COULD NOT
AVOID DECIDING, THE TAFT-HARTLEY ACT UNDOUBTEDLY CARRIES IMPLICATIONS
OF EXCLUSIVE FEDERAL AUTHORITY.  CONGRESS WITHDREW FROM THE STATES MUCH
THAT HAD THERETOFORE RESTED WITH THEM.  BUT THE OTHER HALF OF WHAT WAS
PRONOUNCED IN GARNER - THAT THE ACT "LEAVES MUCH TO THE STATES" - IS NO
LESS IMPORTANT.  SEE 346 U.S., AT 488.  THE STATUTORY IMPLICATIONS
CONCERNING WHAT HAS BEEN TAKEN FROM THE STATES AND WHAT HAS BEEN LEFT
TO THEM ARE OF A DELPHIC NATURE, TO BE TRANSLATED INTO CONCRETENESS BY
THE PROCESS OF LITIGATING ELUCIDATION.  SEE WEBER V. ANHEUSER-BUSCH,
INC., 348 U.S. 468, 474-477. 

SINCE WE DEAL WITH IMPLICATIONS TO BE DRAWN FROM THE TAFT-HARTLEY ACT
FOR THE AVOIDANCE OF CONFLICTS BETWEEN ENFORCEMENT OF FEDERAL POLICY BY
THE NATIONAL LABOR RELATIONS BOARD AND THE EXERTION OF STATE POWER, IT
MIGHT BE ABSTRACTLY JUSTIFIABLE, AS A MATTER OF WOODEN LOGIC, TO
SUGGEST THAT AN ACTION IN A STATE COURT BY A MEMBER OF A UNION FOR
RESTORATION OF HIS MEMBERSHIP RIGHTS IS PRECLUDED.  IN SUCH A SUIT
THERE MAY BE EMBEDDED CIRCUMSTANCES THAT COULD CONSTITUTE AN UNFAIR
LABOR PRACTICE UNDER SEC. 8(B)(2) OF THE ACT.  IN THE JUDGMENT OF THE
BOARD, EXPULSION FROM A UNION, TAKEN IN CONNECTION WITH OTHER
CIRCUMSTANCES ESTABLISHED IN A PARTICULAR CASE, MIGHT CONSTITUTE AN
ATTEMPT TO CAUSE AN EMPLOYER TO "DISCRIMINATE AGAINST AN EMPLOYEE WITH
RESPECT TO WHOM MEMBERSHIP IN SUCH ORGANIZATION HAS BEEN DENIED OR
TERMINATED ON SOME GROUND OTHER THAN HIS FAILURE TO TENDER THE PERIODIC
DUES AND THE INITIATION FEES UNIFORMLY REQUIRED AS A CONDITION OF
ACQUIRING OR RETAINING MEMBERSHIP  ...  ."  61 STAT. 141, 29 U.S.C.
SEC. 158(B)(2).  BUT THE PROTECTION OF UNION MEMBERS IN THEIR RIGHTS AS
MEMBERS FROM ARBITRARY CONDUCT BY UNIONS AND UNION OFFICERS HAS NOT
BEEN UNDERTAKEN BY FEDERAL LAW, AND INDEED THE ASSERTION OF ANY SUCH
POWER HAS BEEN EXPRESSLY DENIED.  THE PROVISO TO SEC. 8(B)(1) OF THE
ACT STATES THAT "THIS PARAGRAPH SHALL NOT IMPAIR THE RIGHT OF A LABOR
ORGANIZATION TO PRESCRIBE ITS OWN RULES WITH RESPECT TO THE ACQUISITION
OR RETENTION OF MEMBERSHIP THEREIN  ...  ."  61 STAT. 141, 29 U.S.C.
SEC. 158(B)(1).  THE PRESENT CONTROVERSY IS PRECISELY ONE THAT GIVES
LEGAL EFFICACY UNDER STATE LAW TO THE RULES PRESCRIBED BY A LABOR
ORGANIZATION FOR "RETENTION OF MEMBERSHIP THEREIN."  THUS, TO PRECLUDE
A STATE COURT FROM EXERTING ITS TRADITIONAL JURISDICTION TO DETERMINE
AND ENFORCE THE RIGHTS OF UNION MEMBERSHIP WOULD IN MANY CASES LEAVE AN
UNJUSTLY OUSTED MEMBER WITHOUT REMEDY FOR THE RESTORATION OF HIS
IMPORTANT UNION RIGHTS.  SUCH A DRASTIC RESULT, ON THE REMOTE
POSSIBILITY OF SOME ENTANGLEMENT WITH THE BOARD'S ENFORCEMENT OF THE
NATIONAL POLICY, WOULD REQUIRE A MORE COMPELLING INDICATION OF
CONGRESSIONAL WILL THAN CAN BE FOUND IN THE INTERSTICES OF THE TAFT
HARTLEY ACT.  SEE UNITED CONSTR.  WORKERS V. LABURNUM CONSTR.  CORP.,
347 U.S. 656. 

ALTHOUGH PETITIONERS DO NOT CLAIM THAT THE STATE COURT LACKED
JURISDICTION TO ORDER RESPONDENT'S REINSTATEMENT, THEY DO CONTEND THAT
IT WAS WITHOUT POWER TO FILL OUT THIS REMEDY BY AN AWARD OF DAMAGES FOR
LOSS OF WAGES AND SUFFERING RESULTING FROM THE BREACH OF CONTRACT.  NO
RADIATION OF THE TAFT-HARTLEY ACT REQUIRES US THUS TO MUTILATE THE
COMPREHENSIVE RELIEF OF EQUITY AND REACH SUCH AN INCONGRUOUS ADJUSTMENT
OF FEDERAL-STATE RELATIONS TOUCHING THE REGULATION OF LABOR.  THE
NATIONAL LABOR RELATIONS BOARD COULD NOT HAVE GIVEN RESPONDENT THE
RELIEF THAT CALIFORNIA GAVE HIM ACCORDING TO ITS LOCAL LAW OF CONTRACTS
AND DAMAGES.  ALTHOUGH, IF THE UNIONS' CONDUCT CONSTITUTED AN UNFAIR
LABOR PRACTICE, THE BOARD MIGHT POSSIBLY HAVE BEEN EMPOWERED TO AWARD
BACK PAY, IN NO EVENT COULD IT MULCT IN DAMAGES FOR MENTAL OR PHYSICAL
SUFFERING.  AND THE POSSIBILITY OF PARTIAL RELIEF FROM THE BOARD DOES
NOT, IN SUCH A CASE AS IS HERE PRESENTED, DEPRIVE A PARTY OF AVAILABLE
STATE REMEDIES FOR ALL DAMAGES SUFFERED.  SEE INTERNATIONAL UNION,
UNITED AUTOMOBILE WORKERS V. RUSSELL, POST, P. 634. 

IF, AS WE HELD IN THE LABURNUM CASE, CERTAIN STATE CAUSES OF ACTION
SOUNDING IN TORT ARE NOT DISPLACED SIMPLY BECAUSE THERE MAY BE AN
ARGUMENTATIVE COINCIDENCE IN THE FACTS ADDUCIBLE IN THE TORT ACTION AND
A PLAUSIBLE PROCEEDING BEFORE THE NATIONAL LABOR RELATIONS BOARD, A
STATE REMEDY FOR BREACH OF CONTRACT ALSO OUGHT NOT BE DISPLACED BY SUCH
EVIDENTIARY COINCIDENCE WHEN THE POSSIBILITY OF CONFLICT WITH FEDERAL
POLICY IS SIMILARLY REMOTE.  THE POSSIBILITY OF CONFLICT FROM THE
COURT'S AWARD OF DAMAGES IN THE PRESENT CASE IS NO GREATER THAN FROM
ITS ORDER THAT RESPONDENT BE RESTORED TO MEMBERSHIP.  IN EITHER CASE
THE POTENTIAL CONFLICT IS TOO CONTINGENT, TOO REMOTELY RELATED TO THE
PUBLIC INTEREST EXPRESSED IN THE TAFT-HARTLEY ACT, TO JUSTIFY DEPRIVING
STATE COURTS OF JURISDICTION TO VINDICATE THE PERSONAL RIGHTS OF AN
OUSTED UNION MEMBER.  THIS IS EMPHASIZED BY THE FACT THAT THE SUBJECT
MATTER OF THE LITIGATION IN THE PRESENT CASE, AS THE PARTIES AND THE
COURT CONCEIVED IT, WAS THE BREACH OF A CONTRACT GOVERNING THE
RELATIONS BETWEEN RESPONDENT AND HIS UNIONS.*  THE SUIT DID NOT PURPORT
TO REMEDY OR REGULATE UNION CONDUCT ON THE GROUND THAT IT WAS DESIGNED
TO BRING ABOUT EMPLOYER DISCRIMINATION AGAINST AN EMPLOYEE, THE EVIL
THE BOARD IS CONCERNED TO STRIKE AT AS AN UNFAIR LABOR PRACTICE UNDER
SEC. 8(B)(2).  THIS IMPORTANT DISTINCTION BETWEEN THE PURPOSES OF
FEDERAL AND STATE REGULATION HAS BEEN APTLY DESCRIBED:  "ALTHOUGH EVEN
THESE STATE COURT DECISIONS MAY LEAD TO POSSIBLE CONFLICT BETWEEN THE
FEDERAL LABOR BOARD AND STATE COURTS THEY DO NOT PRESENT POTENTIALITIES
OF CONFLICTS IN KIND OR DEGREE WHICH REQUIRE A HANDS-OFF DIRECTIVE TO
THE STATES.  A STATE COURT DECISION REQUIRING RESTORATION OF MEMBERSHIP
REQUIRES CONSIDERATION OF AND JUDGMENT UPON MATTERS WHOLLY OUTSIDE THE
SCOPE OF THE NATIONAL LABOR RELATIONS BOARD'S DETERMINATION WITH
REFERENCE TO EMPLOYER DISCRIMINATION AFTER UNION OUSTER FROM
MEMBERSHIP.  THE STATE COURT PROCEEDINGS DEAL WITH ARBITRARINESS AND
MISCONDUCT VIS-A-VIS THE INDIVIDUAL UNION MEMBERS AND THE UNION; THE
BOARD PROCEEDING, LOOKING PRINCIPALLY TO THE NEXUS BETWEEN UNION ACTION
AND EMPLOYER DISCRIMINATION, EXAMINES THE OUSTER FROM MEMBERSHIP IN
ENTIRELY DIFFERENT TERMS."  ISAACSON, LABOR RELATIONS LAW:  FEDERAL
VERSUS STATE JURISDICTION, 42 A.B.A.J. 415, 483. 

*"IN DETERMINING THE QUESTION OF WHETHER THE EXCLUSIVE JURISDICTION
TO GRANT DAMAGES IN A CASE OF THIS KIND LIES IN THE LABOR RELATIONS
BOARD, IT IS FIRST NECESSARY TO DETERMINE THE CHARACTER OF THE
PLEADINGS AND ISSUES IN THIS CASE.  THE PETITION ALLEGED A BREACH OF
CONTRACT BETWEEN THE UNION AND PLAINTIFF, ONE OF ITS MEMBERS  ...  .
IT TOOK THE FORM OF A PETITION FOR WRIT OF MANDATE BECAUSE DAMAGES
ALONE WOULD NOT BE ADEQUATE TO RESTORE TO PETITIONER THE THINGS OF
VALUE HE HAD LOST BY REASON OF THE BREACH.  NO CHARGE OF 'UNFAIR LABOR
PRACTICES' APPEARS IN THE PETITION.  THE ANSWER TO THE PETITION DENIED
ITS ALLEGATIONS AND CHALLENGED THE JURISDICTION OF THE COURT, BUT SAID
NOTHING ABOUT UNFAIR LABOR PRACTICES.  THE EVIDENCE ADDUCED AT THE
TRIAL SHOWED THAT PLAINTIFF, BECAUSE OF HIS LOSS OF MEMBERSHIP, WAS
UNABLE TO OBTAIN EMPLOYMENT AND WAS THEREBY DAMAGED.  HOWEVER, THIS
DAMAGE WAS NOT CHARGED NOR TREATED AS THE RESULT OF AN UNFAIR LABOR
PRACTICE BUT AS A RESULT OF THE BREACH OF CONTRACT.  THUS THE QUESTION
OF UNFAIR LABOR PRACTICE WAS NOT RAISED NOR WAS ANY FINDING ON THE
SUBJECT REQUESTED OF, OR MADE BY, THE COURT."  142 CAL. APP. 2D 207,
217, 298 P.2D 92, 99. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

BY SUSTAINING A STATE-COURT DAMAGE AWARD AGAINST A LABOR ORGANIZATION
FOR CONDUCT THAT WAS SUBJECT TO AN UNFAIR LABOR PRACTICE PROCEEDING
UNDER THE FEDERAL ACT, THIS COURT SANCTIONS A DUPLICATION AND CONFLICT
OF REMEDIES TO WHICH I CANNOT ASSENT.  SUCH A DISPOSITION IS CONTRARY
TO THE UNANIMOUS DECISION OF THIS COURT IN GARNER V. TEAMSTERS C.&H.
LOCAL UNION, 346 U.S. 485. 

IN GARNER, WE REJECTED AN ATTEMPT TO SECURE PREVENTIVE RELIEF UNDER
STATE LAW FOR CONDUCT OVER WHICH THE BOARD HAD REMEDIAL AUTHORITY.  WE
HELD THAT THE NECESSITY FOR UNIFORMITY IN THE REGULATION OF LABOR
RELATIONS SUBJECT TO THE FEDERAL ACT FORBADE RECOURSE TO POTENTIALLY
CONFLICTING STATE REMEDIES.  THE BASES OF THAT DECISION WERE CLEARLY
SET FORTH: 

"CONGRESS EVIDENTLY CONSIDERED THAT CENTRALIZED ADMINISTRATION OF
SPECIALLY DESIGNED PROCEDURES WAS NECESSARY TO OBTAIN UNIFORM
APPLICATION OF ITS SUBSTANTIVE RULES AND TO AVOID THESE DIVERSITIES AND
CONFLICTS LIKELY TO RESULT FROM A VARIETY OF LOCAL PROCEDURES AND
ATTITUDES TOWARD LABOR CONTROVERSIES.  (FN1) 

*         *         *         *         * 

"FURTHER, EVEN IF WE WERE TO ASSUME, WITH PETITIONERS, THAT
DISTINCTLY PRIVATE RIGHTS WERE ENFORCED BY THE STATE AUTHORITIES, IT
DOES NOT FOLLOW THAT THE STATE AND FEDERAL AUTHORITIES MAY SUPPLEMENT
EACH OTHER IN CASES OF THIS TYPE.  THE CONFLICT LIES IN REMEDIES, NOT
RIGHTS.  THE SAME PICKETING MAY INJURE BOTH PUBLIC AND PRIVATE RIGHTS. 
BUT WHEN TWO SEPARATE REMEDIES ARE BROUGHT TO BEAR ON THE SAME
ACTIVITY, A CONFLICT IS IMMINENT."  (FN2) 

THE TWO SUBSEQUENT OPINIONS OF THIS COURT THAT HAVE UNDERTAKEN TO
RESTATE THE HOLDING IN GARNER, ONE OF THEM WRITTEN BY THE AUTHOR OF
TODAY'S MAJORITY OPINION, CONFIRM ITS PROHIBITION AGAINST DUPLICATION
OF REMEDIES.  WEBER V. ANHEUSER-BUSCH, 348 U.S. 468, 479; (FN3) UNITED
CONSTR.  WORKERS V. LABURNUM CONSTR.  CORP., 347 U.S. 656, 663, 665. 
(FN4) AND IF ELUCIDATING LITIGATION WAS REQUIRED TO DISPEL THE DELPHIC
NATURE OF THAT DOCTRINE, THE REQUISITE CONCRETENESS HAS BEEN ADEQUATELY
SUPPLIED.  THIS COURT HAS CONSISTENTLY TURNED BACK EFFORTS TO UTILIZE
STATE REMEDIES FOR CONDUCT SUBJECT TO PROCEEDINGS FOR RELIEF UNDER THE
FEDERAL ACT.  DISTRICT LODGE 34, INT'L ASSN. OF MACHINISTS V. L.P.
CAVETT CO., 355 U.S. 39; LOCAL UNION 429, INT'L BROTHERHOOD OF
ELECTRICAL WORKERS V. FARNSWORTH & CHAMBERS CO., 353 U.S. 969; RETAIL
CLERKS INTERNATIONAL ASSN. V. J.J. NEWBERRY CO., 352 U.S. 987;
POCATELLO BUILDING & CONSTR.  TRADES COUNCIL V. C.H. ELLE CONSTR.  CO.,
352 U.S. 884; BUILDING TRADES COUNCIL V. KINARD CONSTR.  CO., 346 U.S.
933.  WITH THE EXCEPTION OF CASES ALLOWING THE STATE TO EXERCISE ITS
POLICE POWER TO PUNISH OR PREVENT VIOLENCE, UNITED A., A.&A.I.W. V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, 351 U.S. 266; YOUNGDAHL V.
RAINFAIR, INC., 355 U.S. 131, THE BROAD HOLDING OF GARNER HAS NEVER
BEEN IMPAIRED.  CERTAINLY UNITED CONSTR.  WORKERS V. LABURNUM CONSTR. 
CORP., SUPRA, DID NOT HAVE THAT EFFECT.  THE LABURNUM OPINION CAREFULLY
NOTES THAT THE FEDERAL ACT EXCLUDES CONFLICTING STATE PROCEDURES, AND
EMPHASIZES THAT "CONGRESS HAS NEITHER PROVIDED NOR SUGGESTED ANY
SUBSTITUTE" (FN5) FOR THE STATE RELIEF THERE BEING SUSTAINED.  (FN6) 
THE PRINCIPLES DECLARED IN GARNER V. TEAMSTERS C.&H. LOCAL UNION,
SUPRA, WERE NOT THE PRODUCT OF IMPERFECT CONSIDERATION OR UNTRIED
HYPOTHESIS.  THEY COMPRISE THE FUNDAMENTAL DOCTRINES THAT HAVE GUIDED
THIS COURT'S PREEMPTION DECISIONS FOR OVER A CENTURY.  WHEN CONGRESS,
ACTING IN A FIELD OF DOMINANT FEDERAL INTEREST AS PART OF A
COMPREHENSIVE SCHEME OF FEDERAL REGULATION, CONFERS RIGHTS AND CREATES
REMEDIES WITH RESPECT TO CERTAIN CONDUCT, IT HAS EXPRESSED ITS JUDGMENT
ON THE DESIRABLE SCOPE OF REGULATION, AND STATE ACTION TO SUPPLEMENT IT
IS AS "CONFLICTING," OFFENSIVE AND INVALID AS STATE ACTION IN
DEROGATION.  E.G., PENNSYLVANIA V. NELSON, 350 U.S. 497; MISSOURI P.R.
CO. V. PORTER, 273 U.S. 341; HOUSTON V. MOORE, 5 WHEAT.  1, 21-23. 
THIS IS AS TRUE OF A STATE COMMON-LAW RIGHT OF ACTION AS IT IS OF STATE
REGULATORY LEGISLATION.  TEXAS & P.R. CO. V. ABILENE COTTON OIL CO.,
204 U.S. 426.  AS RECENTLY AS GUSS V. UTAH LABOR RELATIONS BOARD, 353
U.S. 1, WE HAD OCCASION TO RE-EMPHASIZE THE VITALITY OF THESE PRE
EMPTION DOCTRINES IN A LABOR CASE WHERE, DUE TO NLRB INACTION, THE
CONDUCT INVOLVED WAS EITHER SUBJECT TO STATE REGULATION OR IT WAS
WHOLLY UNREGULATED.  WE SET ASIDE A STATE-COURT REMEDIAL ORDER DIRECTED
AT ACTIVITY THAT HAD BEEN THE SUBJECT OF UNFAIR LABOR PRACTICE CHARGES
WITH THE BOARD, DECLARING THAT:  "THE (SECESSION OF JURISDICTION)
PROVISO TO SEC. 10(A) IS THE EXCLUSIVE MEANS WHEREBY STATES MAY BE
ENABLED TO ACT CONCERNING THE MATTERS WHICH CONGRESS HAS ENTRUSTED TO
THE NATIONAL LABOR RELATIONS BOARD."  (FN7) 

THAT THE FOREGOING PRINCIPLES OF PRE-EMPTION APPLY TO THE TYPE OF
DISPUTE INVOLVED IN THIS CASE CANNOT BE DOUBTED.  COMMENT HARDLY NEED
BE MADE UPON THE COMPREHENSIVE NATURE OF THE FEDERAL LABOR REGULATION
IN THE TAFT-HARTLEY ACT.  ONE OF ITS DECLARED PURPOSES IS "TO PROTECT
THE RIGHTS OF INDIVIDUAL EMPLOYEES IN THEIR RELATIONS WITH LABOR
ORGANIZATIONS WHOSE ACTIVITIES AFFECT COMMERCE ...  ."  (FN8)  THE ACT
DEALS WITH THE VERY CONDUCT INVOLVED IN THIS CASE BY DECLARING IN SEC.
8(B)(2) THAT IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE
IN REGARD TO HIRE OR TENURE OF EMPLOYMENT AGAINST AN EMPLOYEE WHO HAS
BEEN DENIED UNION MEMBERSHIP ON SOME GROUND OTHER THAN FAILURE TO
TENDER PERIODIC DUES.  (FN9) THE EVIDENCE DISCLOSED THE PROBABILITY OF
A SEC. 8(B)(2) UNFAIR LABOR PRACTICE IN THE UNION'S REFUSAL TO DISPATCH
GONZALES FROM ITS HIRING HALL AFTER HIS EXPULSION FROM MEMBERSHIP AND
HIS INABILITY THEREAFTER TO OBTAIN EMPLOYMENT.  IF A CAUSAL RELATION
BETWEEN THE NONDISPATCH AND THE REFUSAL TO HIRE IS AN ESSENTIAL ELEMENT
OF SEC. 8(B)(2), (FN10) THERE WAS AMPLE EVIDENCE TO SATISFY THAT
REQUIREMENT.  A FEW MONTHS AFTER GONZALES' EXPULSION, THE UNION SIGNED
A MULTIEMPLOYER COLLECTIVE BARGAINING AGREEMENT WITH A HIRING-HALL
PROVISION.  ONE WITNESS TESTIFIED THAT THERE WAS NO MATERIAL DIFFERENCE
BETWEEN HIRING PROCEDURES BEFORE AND AFTER THE DATE OF THAT AGREEMENT. 
(FN11)  THERE WERE OTHER INDICATIONS TO THE SAME EFFECT.  (FN12)  IN
ANY EVENT, SINCE THE UNCONTESTED FACTS DISCLOSE THE PROBABILITY OF A
SEC. 8(B)(2) UNFAIR LABOR PRACTICE, THE EXISTENCE OF THE SAME MUST FOR
PRE-EMPTION PURPOSES BE ASSUMED.  AS WE SAID IN WEBER V. ANHEUSER
BUSCH, SUPRA, AT 478, "THE POINT IS RATHER THAT THE BOARD, AND NOT THE
STATE COURT, IS EMPOWERED TO PASS UPON SUCH ISSUES IN THE FIRST
INSTANCE." 

ASSUMING THAT THE UNION CONDUCT INVOLVED CONSTITUTED A SEC. 8(B)(2)
UNFAIR LABOR PRACTICE, (FN13) THE EXISTENCE OF A CONFLICT OF REMEDIES
IN THIS CASE CANNOT BE DENIED.  SECTION 10(C) OF THE ACT EMPOWERS THE
BOARD TO REDRESS SUCH CONDUCT BY REQUIRING THE RESPONSIBLE PARTY TO
REIMBURSE THE WORKER FOR THE PAY HE HAS LOST.  RELYING UPON THE
IDENTICAL CONDUCT ON WHICH THE BOARD WOULD PREMISE ITS BACKPAY AWARD,
(FN14) THE STATE COURT HAS REQUIRED OF THE UNION PRECISELY WHAT THE
BOARD WOULD REQUIRE:  THAT GONZALES BE MADE WHOLE FOR HIS LOST WAGES. 
SUCH A DUPLICATION AND CONFLICT OF REMEDIES IS THE VERY THING THIS
COURT CONDEMNED IN GARNER. 

THE FURTHER RECOVERY OF $2,500 DAMAGES FOR "MENTAL SUFFERING,
HUMILIATION AND DISTRESS" SERVES TO AGGRAVATE THE EVIL.  WHEN CONGRESS
PROSCRIBED UNION-INSPIRED JOB DISCRIMINATIONS AND PROVIDED FOR A
RECOVERY OF LOST WAGES BY THE INJURED PARTY, IT CREATED ALL THE RELIEF
IT THOUGHT NECESSARY TO ACCOMPLISH ITS PURPOSE.  ANY ADDITIONAL REDRESS
UNDER STATE LAW FOR THE SAME CONDUCT CANNOT AVOID DISTURBING THIS
DELICATE BALANCE OF RIGHTS AND REMEDIES.  THE RIGHT OF ACTION FOR
EMOTIONAL DISTURBANCE, LIKE THE PUNITIVE RECOVERY THE PLAINTIFF SOUGHT
UNSUCCESSFULLY IN THIS CASE, IS A PARTICULARLY UNWELCOME ADDITION TO
THE SCHEME OF FEDERAL REMEDIES BECAUSE OF THE RANDOM NATURE OF ANY
ASSESSMENT OF DAMAGES.  WITHOUT A RELIABLE GAUGE TO WHICH TO RELATE
THEIR VERDICT, A JURY MAY FIX AN AMOUNT IN RESPONSE TO THOSE "LOCAL
PROCEDURES AND ATTITUDES TOWARD LABOR CONTROVERSIES" FROM WHICH THE
GARNER CASE SOUGHT TO ISOLATE NATIONAL LABOR REGULATION.  THE PROSPECT
OF SUCH RECOVERIES WILL INEVITABLY EXERCISE A REGULATORY EFFECT ON
LABOR RELATIONS. 

THE STATE AND FEDERAL COURTS THAT HAVE CONSIDERED THE PERMISSIBILITY
OF DAMAGE ACTIONS FOR THE VICTIMS OF JOB DISCRIMINATION LEND THEIR
WEIGHT TO THE FOREGOING CONCLUSION.  WHILE MOST SUSTAIN THE STATE'S
POWER TO REINSTATE MEMBERS WRONGFULLY OUSTED FROM THE UNION, THEY ARE
UNANIMOUS IN DENYING THE STATE'S POWER TO AWARD DAMAGES FOR THE
EMPLOYER DISCRIMINATIONS THAT RESULT FROM NONMEMBERSHIP.  (FN15) 

THE LEGISLATIVE HISTORY AND STRUCTURE OF THE FEDERAL ACT LEND FURTHER
SUPPORT TO A CONCLUSION OF PRE-EMPTION.  WHILE SEC. 8(B)(2) AND THE
OTHER PROVISIONS DEFINING UNFAIR LABOR PRACTICES ON THE PART OF LABOR
ORGANIZATIONS WERE FIRST INTRODUCED IN THE TAFT-HARTLEY ACT, SIMILAR
CONDUCT BY AN EMPLOYER HAD BEEN AN UNFAIR LABOR PRACTICE UNDER SEC.
8(3) OF THE WAGNER ACT, 49 STAT. 452.  COMMITTEE REPORTS DEALING WITH
THAT PROVISION LEAVE NO DOUBT THAT THE CONGRESS WAS PRESCRIBING A
COMPLETE CODE OF FEDERAL LABOR REGULATION THAT DID NOT CONTEMPLATE
ACTIONS IN THE STATE COURT FOR THE SAME CONDUCT. 

"THE BOARD IS EMPOWERED, ACCORDING TO THE PROCEDURE PROVIDED IN
PRACTICE LISTED IN SECTION 8 'AFFECTING COMMERCE', AS THAT TERM IS
DEFINED IN SECTION 2(7).  THIS POWER IS VESTED EXCLUSIVELY IN THE BOARD
AND IS NOT TO BE AFFECTED BY ANY OTHER MEANS OF ADJUSTMENT OR
PREVENTION. 

     *       *         *         *         * 

"THE MOST FREQUENT FORM OF AFFIRMATIVE ACTION REQUIRED IN CASES OF
THIS TYPE IS SPECIFICALLY PROVIDED FOR, I.E., THE REINSTATEMENT OF
EMPLOYEES WITH OR WITHOUT BACK PAY, AS THE CIRCUMSTANCES DICTATE.  NO
PRIVATE RIGHT OF ACTION IS CONTEMPLATED."  (FN16) 

THERE IS NOTHING IN THE TAFT-HARTLEY AMENDMENTS THAT DETRACTS IN THE
SLIGHTEST FROM THIS UNEQUIVOCAL DECLARATION THAT PRIVATE RIGHTS OF
ACTION ARE NOT CONTEMPLATED WITHIN THE SCHEME OF REMEDIES CONGRESS HAS
CHOSEN TO PRESCRIBE IN THE REGULATION OF LABOR RELATIONS.  (FN17)  IT
IS CONSISTENT WITH EVERY INDICATION OF LEGISLATIVE INTENT.  AS THE ACT
ORIGINALLY PASSED THE HOUSE, SEC. 12 CREATED A PRIVATE RIGHT OF ACTION
IN FAVOR OF PERSONS INJURED BY CERTAIN UNFAIR LABOR PRACTICES.  (FN18)
THE SENATE REJECTED THAT APPROACH, AND THE SECTION WAS DELETED BY THE
CONFERENCE. 

SPECIAL CONSIDERATIONS PROMPTED ADOPTION OF A SENATE AMENDMENT
CREATING AN ACTION FOR DAMAGES SUSTAINED FROM ONE UNFAIR LABOR
PRACTICE, THE SECONDARY BOYCOTT.  (FN19)  ASIDE FROM THE OBVIOUS
ARGUMENT THAT THE EXPRESS INCLUSION OF ONE PRIVATE ACTION IN THE SCHEME
OF REMEDIES PROVIDED BY THE ACT INDICATES THAT CONGRESS DID NOT
CONTEMPLATE OTHERS, THE CONTENT OF SEC. 301 FURNISHES ANOTHER
DISTINGUISHING FEATURE.  THE RIGHT OF ACTION IS FEDERAL IN ORIGIN,
ASSURING THE UNIFORMITY OF SUBSTANTIVE LAW SO ESSENTIAL TO MATTERS
HAVING AN IMPACT ON NATIONAL LABOR REGULATION.  (FN20)  THE RIGHT OF
ACTION THAT THE MAJORITY SANCTIONS HERE, ON THE OTHER HAND, IS A
CREATURE OF STATE LAW AND MAY BE EXPECTED TO VARY IN CONTENT AND EFFECT
ACCORDING TO THE LOCALITY IN WHICH IT IS ASSERTED.  FREE TO OPERATE AS
WHAT SENATOR TAFT CHARACTERIZED "A TREMENDOUS DETERRENT" (FN21) TO THE
UNFAIR LABOR PRACTICE FOR WHICH IT GIVES COMPENSATION, THIS DAMAGE
RECOVERY CONSTITUTES A STATE-CREATED AND STATE-ADMINISTERED ADDITION TO
THE STRUCTURE OF NATIONAL LABOR REGULATION THAT CANNOT CLAIM EVEN THE
VIRTUE OF UNIFORMITY. 

SINCE THE MAJORITY'S DECISION ON THE PERMISSIBILITY OF A STATE-COURT
DAMAGE AWARD IS AT WAR WITH THE POLICIES OF THE FEDERAL ACT AND
CONTRARY TO THE DECISIONS OF THIS COURT, IT IS NOT SURPRISING THAT THE
BULK OF ITS OPINION IS CONCERNED WITH THE COMFORTING IRRELEVANCY OF THE
STATE'S CONCEDED POWER TO REINSTATE THE WRONGFULLY EXPELLED.  BUT IT
WILL NOT DO TO ASSERT THAT THE "POSSIBILITY OF CONFLICT WITH FEDERAL
POLICY" IS AS "REMOTE" IN THE CASE OF DAMAGES AS WITH REINSTATEMENT. 
AS WE HAVE SEEN, THE BOARD HAS NO POWER TO ORDER THE RESTORATION OF
UNION MEMBERSHIP RIGHTS, WHILE ITS POWER TO REQUIRE THE PAYMENT OF BACK
PAY IS WELL RECOGNIZED AND OFTEN EXERCISED.  IF A STATE COURT MAY
DUPLICATE THE LATTER RELIEF, AND AWARD EXEMPLARY OR PAIN AND SUFFERING
DAMAGES AS WELL, EMPLOYEES WILL BE DETERRED FROM RESORTING TO THE
CURATIVE MACHINERY OF THE FEDERAL ACT.  THE MAJORITY APPARENTLY BLINKS
AT THAT RESULT IN ORDER THAT THE STATE COURT MAY "FILL OUT THIS
REMEDY."  TO AVOID "MUTILATING" THE STATE EQUITY COURT'S CONVENTIONAL
POWERS OF RELIEF, THE MAJORITY REACHES A DECISION THAT WILL FRUSTRATE
THE REMEDIAL PATTERN OF THE FEDERAL ACT.  HOW DIFFERENT THAT IS FROM
GUSS V. UTAH LABOR RELATIONS BOARD, SUPRA, WHERE THE REMEDIAL AUTHORITY
OF A STATE WAS DENIED IN ITS ENTIRETY BECAUSE CONGRESS HAD "EXPRESSED
ITS JUDGMENT IN FAVOR OF UNIFORMITY." 

THE MAJORITY DRAWS SATISFACTION FROM THE FACT THAT THIS WAS A SUIT
FOR BREACH OF CONTRACT, NOT AN ATTEMPT TO REGULATE OR REMEDY UNION
CONDUCT DESIGNED TO BRING ABOUT AN EMPLOYER DISCRIMINATION.  BUT THE
PRESENCE OR ABSENCE OF PRE-EMPTION IS A CONSEQUENCE OF THE EFFECT OF
STATE ACTION ON THE AIMS OF FEDERAL LEGISLATION, NOT A GAME THAT IS
PLAYED WITH LABELS OR AN EXERCISE IN ARTFUL PLEADING.  IN A PRE-EMPTION
CASE DECIDED UPON WHAT NOW SEEM TO BE DISCARDED PRINCIPLES, (FN22) THE
AUTHOR OF TODAY'S MAJORITY OPINION DECLARED:  "CONTROLLING AND
THEREFORE SUPERSEDING FEDERAL POWER CANNOT BE CURTAILED BY THE STATE
EVEN THOUGH THE GROUND OF INTERVENTION BE DIFFERENT THAN THAT ON WHICH
FEDERAL SUPREMACY HAS BEEN EXERCISED."  WEBER V. ANHEUSER-BUSCH, SUPRA,
AT 480.  I WOULD ADHERE TO THE VIEW OF PRE-EMPTION EXPRESSED BY THAT
CASE AND BY GARNER V. TEAMSTERS C.&H. LOCAL UNION, SUPRA, AND REVERSE
THE JUDGMENT BELOW. 

FN1  346 U.S., AT 490. 

FN2  346 U.S., AT 498-499. 

FN3  "IN GARNER THE EMPHASIS WAS NOT ON TWO CONFLICTING LABOR
STATUTES BUT RATHER ON TWO SIMILAR REMEDIES, ONE STATE AND ONE FEDERAL,
BROUGHT TO BEAR ON PRECISELY THE SAME CONDUCT." 

FN4  "IN THE GARNER CASE, CONGRESS HAD PROVIDED A FEDERAL
ADMINISTRATIVE REMEDY, SUPPLEMENTED BY JUDICIAL PROCEDURE FOR ITS
ENFORCEMENT, WITH WHICH THE STATE INJUNCTIVE PROCEDURE CONFLICTED  ...
.  THE CARE WE TOOK IN THE GARNER CASE TO DEMONSTRATE THE EXISTING
CONFLICT BETWEEN STATE AND FEDERAL ADMINISTRATIVE REMEDIES IN THAT CASE
WAS, ITSELF, A RECOGNITION THAT IF NO CONFLICT HAD EXISTED, THE STATE
PROCEDURE WOULD HAVE SURVIVED." 

AND SEE GUSS V. UTAH LABOR RELATIONS BOARD, 353 U.S. 1, 6:  "THE
NATIONAL ACT EXPRESSLY DEALS WITH THE CONDUCT CHARGED TO APPELLANT
WHICH WAS THE BASIS OF THE STATE TRIBUNALS' ACTIONS.  THEREFORE, IF THE
NATIONAL BOARD HAD NOT DECLINED JURISDICTION, STATE ACTION WOULD HAVE
BEEN PRECLUDED BY OUR DECISION IN GARNER V. TEAMSTERS UNION,  ...  ." 

FN5  347 U.S., AT 663. 

FN6  SPEAKING OF THE LABURNUM CASE IN WEBER V. ANHEUSER-BUSCH, 348
U.S. 468, 477, THE COURT STATED THAT "THIS COURT SUSTAINED THE STATE
JUDGMENT ON THE THEORY THAT THERE WAS NO COMPENSATORY RELIEF UNDER THE
FEDERAL ACT AND NO FEDERAL ADMINISTRATIVE RELIEF WITH WHICH THE STATE
REMEDY CONFLICTED." 

FN7  353 U.S., AT 9. 

FN8  29 U.S.C. SEC. 141. 

FN9  29 U.S.C. SEC. 158(B)(2). 

FN10  BUT CF. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO.
12, 113 N.L.R.B.  655, 662-663, ENFORCEMENT GRANTED, 237 F.2D 670. 

FN11  REPLY BRIEF FOR PETITIONER, P. 4; R. 73-74, 134. 

FN12  THE STATE APPELLATE COURT CONCLUDED THAT "EMPLOYERS OF THE TYPE
OF LABOR PROVIDED BY MEMBERS OF THIS ORGANIZATION ONLY HIRE THROUGH THE
UNION HIRING HALL."  142 CAL. APP. 2D 207, 214, 298 P.2D 92, 97.  THE
OPENING STATEMENT FOR GONZALES IN THE TRIAL COURT DECLARED THAT
"EVERYTIME HE APPLIES FOR A JOB, HE IS TOLD TO GO TO THE HALL TO GET A
CLEARANCE  ...  ."  R. 36.  GONZALES' TESTIMONY ON THAT SUBJECT WAS
EXCLUDED AS HEARSAY.  R. 60-61. 

FN13  IT IS UNNECESSARY TO CONSIDER WHETHER A SEC. 8(B)(1)(A)
VIOLATION WAS ALSO INVOLVED. 

FN14  THE CAUSE OF ACTION UNDER STATE LAW AROSE WHEN THE UNION DENIED
GONZALES THE BENEFITS OF MEMBERSHIP BY REFUSING DISPATCH.  SUBSEQUENT
EMPLOYER REFUSALS TO HIRE MERELY ESTABLISHED THE DAMAGES.  WITH THE
UNFAIR LABOR PRACTICE, ON THE OTHER HAND, EMPLOYER REFUSAL OR FAILURE
TO HIRE IS AN ESSENTIAL ELEMENT OF THE WRONGFUL CONDUCT.  IN EITHER
CASE GONZALES IS REQUIRED TO PROVE THE SAME UNION AND EMPLOYER CONDUCT
TO QUALIFY FOR COMPENSATION.    FN15  BORN V. LAUBE, 213 F.2D 407,
REHEARING DENIED, 214 F.2D 349; MCNISH V. AMERICAN BRASS CO., 139 CONN.
44, 89 A.2D 566; MORSE V. LOCAN UNION NO. 1058 CARPENTERS AND JOINERS,
78 IDAHO 405, 304 P.2D 1097; STERLING V. LOCAL 438, LIBERTY ASSN. OF
STEAM AND POWER PIPE FITTERS, 207 MD. 132, 113 A.2D 389; REAL V.
CURRAN, 285 APP. DIV. 552, 138 N.Y.S.2D 809; MAHONEY V. SAILORS' UNION
OF THE PACIFIC, 45 WASH. 2D 453, 275 P.2D 440. 

FN16  H.R. REP. NO. 1147 ON S. 1958, 74TH CONG., 1ST SESS. 23-24;
H.R. REP. NO. 972 ON S. 1958, 74TH CONG., 1ST SESS. 21; H.R. REP. NO.
969 ON H.R. 7978, 74TH CONG., 1ST SESS.  21. 

FN17  THE NEW ACT DELETED THE PROVISION IN SEC. 10(A) THAT THE
BOARD'S POWER TO PREVENT UNFAIR LABOR PRACTICES WAS "EXCLUSIVE," BUT
THE COMMITTEE REPORTS MAKE ABUNDANTLY CLEAR THAT THE DELETION WAS ONLY
MADE TO AVOID CONFLICT WITH THE NEW PROVISIONS AUTHORIZING A FEDERAL
COURT INJUNCTION AGAINST UNFAIR LABOR PRACTICES (SEC. 10(J) AND (L), 29
U.S.C.  SEC. 160(J) AND (L)), AND THE PROVISION MAKING UNIONS SUABLE IN
THE FEDERAL COURTS (SEC. 301, 29 U.S.C. SEC. 185).  H.R. CONF. REP. NO.
510 ON H.R. 3020, 80TH CONG., 1ST SESS. 52.  AMAZON COTTON MILL CO. V.
TEXTILE WORKERS UNION, 167 F.2D 183. 

FN18  H.R. 3020, 80TH CONG., 1ST SESS.; H.R. REP. NO. 245 ON H.R.
3020, 80TH CONG., 1ST SESS. 43-44. 

FN19  SEC. 303, LABOR MANAGEMENT RELATIONS ACT OF 1947, 29 U.S.C.
SEC. 187.  AN EXAMINATION OF THE COMMITTEE REPORTS AND DEBATES
CONCERNING THIS PROVISION REVEALS THAT THE ADDITIONAL RELIEF WAS A
PRODUCT OF CONGRESSIONAL CONCERN THAT, FOR THIS TYPE OF CONDUCT, THE
BOARD'S ORDINARY CEASE-AND-DESIST ORDER WAS "A WEAK AND UNCERTAIN
REMEDY."  CORRECTIVE ACTION WAS ENTIRELY IN THE DISCRETION OF THE
BOARD, AND THE DELAY INVOLVED IN SETTING ITS PROCESSES IN MOTION COULD
WORK A GREAT HARDSHIP ON THE VICTIMS OF THE BOYCOTT.  S. REP. NO. 105
ON S. 1126, SUPP. VIEWS, 80TH CONG., 1ST SESS. 54-55; 93 CONG. REC.
4835-4838.  THE SENATE REJECTED A PROPOSAL FOR INJUNCTIVE RELIEF IN THE
STATE COURTS (93 CONG. REC. 4847), BUT CREATED THIS FEDERAL RIGHT OF
ACTION FOR DAMAGES.  SENATOR TAFT, THE AUTHOR OF THE AMENDMENT, VOICED
ITS TWO OBJECTIVES:  IT WOULD EFFECT RESTITUTION FOR THE INJURED
PARTIES (93 CONG.  REC. 4844, 4858), AND "THE THREAT OF A SUIT FOR
DAMAGES IS A TREMENDOUS DETERRENT TO THE INSTITUTION OF SECONDARY
BOYCOTTS AND JURISDICTIONAL STRIKES" (92 CONG. REC. 4858). 

FN20  "BY THIS PROVISION (SEC. 303), THE ACT ASSURES UNIFORMITY,
OTHERWISE LACKING, IN RIGHTS OF RECOVERY IN THE STATE COURTS  ...  ." 
UNITED CONSTR.  WORKERS V. LABURNUM CONSTR.  CORP., 347 U.S. 656, 665
666. 

FN21  93 CONG. REC. 4858. 

FN22  COMPARE THE CHARACTERIZATION OF THE LABURNUM CASE IN WEBER V.
ANHEUSER-BUSCH, SUPRA, WITH THE PROPORTIONS THAT CASE HAS ASSUMED IN
TODAY'S DECISION. 

THEN:  "UNITED CONSTR.  WORKERS V. LABURNUM CONSTR.  CORP., 347 U.S.
656, WAS AN ACTION FOR DAMAGES BASED ON VIOLENT CONDUCT, WHICH THE
STATE COURT FOUND TO BE A COMMON-LAW TORT.  WHILE ASSUMING THAT AN
UNFAIR LABOR PRACTICE UNDER THE TAFT-HARTLEY ACT WAS INVOLVED, THIS
COURT SUSTAINED THE STATE JUDGMENT ON THE THEORY THAT THERE WAS NO
COMPENSATORY RELIEF UNDER THE FEDERAL ACT AND NO FEDERAL ADMINISTRATIVE
RELIEF WITH WHICH THE STATE REMEDY CONFLICTED."  348 U.S., AT 477. 

NOW:  "IF, AS WE HELD IN THE LABURNUM CASE, CERTAIN STATE CAUSES OF
ACTION SOUNDING IN TORT ARE NOT DISPLACED SIMPLY BECAUSE THERE MAY BE
AN ARGUMENTATIVE COINCIDENCE IN THE FACTS ADDUCIBLE IN THE TORT ACTION
AND A PLAUSIBLE PROCEEDING BEFORE THE NATIONAL LABOR RELATIONS BOARD, A
STATE REMEDY FOR BREACH OF CONTRACT ALSO OUGHT NOT BE DISPLACED BY SUCH
EVIDENTIARY COINCIDENCE WHEN THE POSSIBILITY OF CONFLICT WITH FEDERAL
POLICY IS SIMILARLY REMOTE."  ANTE, P. 621. 
..END :



INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO) V. RUSSELL 356 U.S. 634 


NO. 21.  ARGUED DECEMBER 11-12, 1957 - DECIDED MAY 26, 1958 - 264 ALA.
456, 88 SO. 2D 175, AFFIRMED. 


IN 1952, RESPONDENT, A NONUNION EMPLOYEE IN AN INDUSTRY AFFECTING
INTERSTATE COMMERCE, BROUGHT A COMMON-LAW TORT ACTION IN A STATE COURT
AGAINST A LABOR UNION AND ITS AGENT TO RECOVER COMPENSATORY AND
PUNITIVE DAMAGES FOR MALICIOUS INTERFERENCE WITH HIS LAWFUL OCCUPATION,
ALLEGING THAT, BY MASS PICKETING AND THREATS OF VIOLENCE DURING A
STRIKE, THEY PREVENTED HIM FROM ENTERING THE PLANT WHERE HE WAS
EMPLOYED AND FROM ENGAGING IN HIS EMPLOYMENT FOR OVER A MONTH.  IT IS
ASSUMED THAT SUCH ACTION ALSO CONSTITUTED AN UNFAIR LABOR PRACTICE
UNDER SEC. 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
FOR WHICH THE NATIONAL LABOR RELATIONS BOARD COULD HAVE AWARDED
RESPONDENT BACK PAY UNDER SEC. 10(C).  HELD:  THE ACT DID NOT GIVE THE
BOARD SUCH EXCLUSIVE JURISDICTION OVER THE SUBJECT MATTER AS TO
PRECLUDE THE STATE COURT FROM ENTERTAINING THE ACTION AND AWARDING
COMPENSATORY AND PUNITIVE DAMAGES.  PP. 635-646. 

(A)  THE UNION'S ACTIVITY IN THIS CASE CLEARLY WAS NOT PROTECTED BY
FEDERAL LAW.  P. 640. 

(B)  CONGRESS HAS NOT DEPRIVED A VICTIM OF THE KIND OF TORTIOUS
CONDUCT HERE INVOLVED OF HIS COMMON-LAW RIGHTS OF ACTION FOR ALL
DAMAGES SUFFERED.  UNITED WORKERS V. LABURNUM CORP., 347 U.S. 656.  PP.
640-642. 

(C)  THAT, UNDER SEC. 10(C) OF THE FEDERAL ACT, THE BOARD HAD LIMITED
POWER TO AWARD BACK PAY TO RESPONDENT DOES NOT CREATE SUCH A CONFLICT
AS TO DEPRIVE THE STATE COURTS OF JURISDICTION TO AWARD COMMON-LAW
DAMAGES FOR LOST PAY.  PP. 642-645. 

(D)  TO HOLD THAT THE LIMITED POWER OF THE BOARD UNDER SEC. 10(C) TO
AWARD BACK PAY IN ITS DISCRETION EXCLUDES THE POWER OF THE STATE TO
ENFORCE THE EMPLOYEE'S COMMON-LAW RIGHTS OF ACTION WOULD, IN EFFECT,
GRANT TO UNIONS A SUBSTANTIAL IMMUNITY FROM THE CONSEQUENCES OF MASS
PICKETING OR COERCION SUCH AS WAS EMPLOYED HERE.  PP. 645-646. 

(E)  AN EMPLOYEE'S RIGHT TO RECOVER IN THE STATE COURTS ALL DAMAGES
CAUSED HIM BY THIS KIND OF TORTIOUS CONDUCT CANNOT FAIRLY BE SAID TO BE
PRE-EMPTED WITHOUT A CLEARER DECLARATION OF CONGRESSIONAL POLICY THAN
IS FOUND HERE.  P. 646. 

(F)  THE POWER TO AWARD PUNITIVE DAMAGES IS WITHIN THE JURISDICITON
OF THE STATE COURTS BUT NOT WITHIN THAT OF THE BOARD.  P. 646. 

INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO) ET AL. V. RUSSELL. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE ISSUE BEFORE US IS WHETHER A STATE COURT, IN 1952, HAD
JURISDICITON TO ENTERTAIN AN ACTION BY AN EMPLOYEE, WHO WORKED IN AN
INDUSTRY AFFECTING INTERSTATE COMMERCE, AGAINST A UNION AND ITS AGENT,
FOR MALICIOUS INTERFERENCE WITH SUCH EMPLOYEE'S LAWFUL OCCUPATION.  IN
UNITED WORKERS V. LABURNUM CORP., 347 U.S. 656, 657, WE HELD THAT
CONGRESS HAD NOT "GIVEN THE NATIONAL LABOR RELATIONS BOARD SUCH
EXCLUSIVE JURISDICTION OVER THE SUBJECT MATTER OF A COMMON-LAW TORT
ACTION FOR DAMAGES AS TO PRECLUDE AN APPROPRIATE STATE COURT FROM
HEARING AND DETERMINING ITS ISSUES WHERE SUCH CONDUCT CONSTITUTES AN
UNFAIR LABOR PRACTICE" UNDER THE LABOR MANAGEMENT RELATIONS ACT, 1947,
OR THE NATIONAL LABOR RELATIONS ACT, AS AMENDED.  (FN1)  FOR THE
REASONS HEREAFTER STATED, WE UPHOLD THE JURISDICTION OF THE STATE
COURTS IN THIS CASE AS WE DID IN THE LABURNUM CASE. 

THIS ACTION WAS INSTITUTED IN THE CIRCUIT COURT OF MORGAN COUNTY,
ALABAMA, IN 1952, BY PAUL S. RUSSELL, THE RESPONDENT, AGAINST THE
PETITIONERS, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, AN UNINCORPORATED LABOR
ORGANIZATION, HERE CALLED THE UNION, AND ITS AGENT, VOLK, TOGETHER WITH
OTHER PARTIES NOT NOW IN THE CASE.  RUSSELL WAS A MAINTENANCE
ELECTRICIAN EMPLOYED BY CALUMET AND HECLA CONSOLIDATED COPPER COMPANY
(WOLVERINE TUBE DIVISION) IN DECATUR, ALABAMA, AT $1.75 AN HOUR AND
EARNED APPROXIMATELY $100 A WEEK.  THE UNION WAS THE BARGAINING AGENT
FOR CERTAIN EMPLOYEES OF THAT DIVISION BUT RUSSELL WAS NOT A MEMBER OF
THE UNION NOR HAD HE APPLIED FOR SUCH MEMBERSHIP. 

THE ALLEGATIONS OF HIS AMENDED COMPLAINT MAY BE SUMMARIZED AS
FOLLOWS:  THE UNION, ON BEHALF OF THE EMPLOYEES IT REPRESENTED, CALLED
A STRIKE TO COMMENCE JULY 18, 1951.  TO PREVENT RUSSELL AND OTHER
HOURLY PAID EMPLOYEES FROM ENTERING THE PLANT DURING THE STRIKE, AND TO
THUS MAKE THE STRIKE EFFECTIVE, PETITIONERS MAINTAINED A PICKET LINE
FROM JULY 18 TO SEPTEMBER 24, 1951.  THIS LINE WAS LOCATED ALONG AND IN
THE PUBLIC STREET WHICH WAS THE ONLY MEANS OF INGRESS AND EGRESS TO THE
PLANT.  THE LINE CONSISTED OF PERSONS STANDING ALONG THE STREET OR
WALKING IN A COMPACT CIRCLE ACROSS THE ENTIRE TRAVELED PORTION OF THE
STREET.  SUCH PICKETS, ON JULY 18, BY FORCE OF NUMBERS, THREATS OF
BODILY HARM TO RUSSELL AND OF DAMAGE TO HIS PROPERTY, PREVENTED HIM
FROM REACHING THE PLANT GATES.  AT LEAST ONE STRIKER TOOK HOLD OF
RUSSELL'S AUTOMOBILE.  SOME OF THE PICKETS STOOD OR WALKED IN FRONT OF
HIS AUTOMOBILE IN SUCH A MANNER AS TO BLOCK THE STREET AND MAKE IT
IMPOSSIBLE FOR HIM, AND OTHERS SIMILARLY SITUATED, TO ENTER THE PLANT. 
THE AMENDED COMPLAINT ALSO CONTAINED A SECOND COUNT TO THE SAME GENERAL
EFFECT BUT ALLEGING THAT PETITIONERS UNLAWFULLY CONSPIRED WITH OTHER
PERSONS TO DO THE ACTS ABOVE DESCRIBED. 

THE AMENDED COMPLAINT FURTHER ALLEGED THAT PETITIONERS WILLFULLY AND
MALICIOUSLY CAUSED RUSSELL TO LOSE TIME FROM HIS WORK FROM JULY 18 TO
AUGUST 22, 1951, AND TO LOSE THE EARNINGS WHICH HE WOULD HAVE RECEIVED
HAD HE AND OTHERS NOT BEEN PREVENTED FROM GOING TO AND FROM THE PLANT. 
RUSSELL, ACCORDINGLY, CLAIMED COMPENSATORY DAMAGES FOR HIS LOSS OF
EARNINGS AND FOR HIS MENTAL ANGUISH, PLUS PUNITIVE DAMAGES, IN THE
TOTAL SUM OF $50,000. 

PETITIONERS FILED A PLEA TO THE JURISDICTION.  THEY CLAIMED THAT THE
NATIONAL LABOR RELATIONS BOARD HAD JURISDICTION OF THE CONTROVERSY TO
THE EXCLUSION OF THE STATE COURT.  THE TRIAL COURT OVERRULED RUSSELL'S
DEMURRER TO THE PLEA.  HOWEVER, THE SUPREME COURT OF ALABAMA REVERSED
THE TRIAL COURT AND UPHELD THE JURISDICTION OF THAT COURT, EVEN THOUGH
THE AMENDED COMPLAINT CHARGED A VIOLATION OF SEC. 8(B)(1)(A) OF THE
FEDERAL ACT.  (FN2)  258 ALA. 615, 64 SO. 2D 384. 

ON REMAND, PETITIONERS' PLEA TO THE JURISDICTION WAS AGAIN FILED BUT
THIS TIME RUSSELL'S DEMURRER TO IT WAS SUSTAINED.  THE CASE WENT TO
TRIAL BEFORE A JURY AND RESULTED IN A GENERAL VERDICT AND A JUDGMENT
FOR RUSSELL IN THE AMOUNT OF $10,000, INCLUDING PUNITIVE DAMAGES.  ON
APPEAL, THE SUPREME COURT OF ALABAMA REAFFIRMED THE CIRCUIT COURT'S
JURISDICTION.  IT ALSO AFFIRMED THE JUDGMENT FOR RUSSELL ON THE MERITS,
HOLDING THAT RUSSELL HAD PROVED THE TORT OF WRONGFUL INTERFERENCE WITH
A LAWFUL OCCUPATION.  264 ALA. 456, 88 SO. 2D 175.  BECAUSE OF THE
IMPORTANCE OF THE JURISDICTIONAL ISSUE, WE GRANTED CERTIORARI.  352
U.S. 915. 

THERE WAS MUCH CONFLICT IN THE TESTIMONY AS TO WHAT TOOK PLACE IN
CONNECTION WITH THE PICKETING BUT THOSE CONFLICTS WERE RESOLVED BY THE
JURY IN FAVOR OF RUSSELL.  (FN3)  ACCEPTING A VIEW OF THE EVIDENCE MOST
FAVORABLE TO HIM, THE JURY WAS ENTITLED TO CONCLUDE THAT PETITIONERS
DID, BY MASS PICKETING AND THREATS OF VIOLENCE, PREVENT HIM FROM
ENTERING THE PLANT AND FROM ENGAGING IN HIS EMPLOYMENT FROM JULY 18 TO
AUGUST 22.  THE JURY COULD HAVE FOUND THAT WORK WOULD HAVE BEEN
AVAILABLE WITHIN THE PLANT IF RUSSELL, AND OTHER DESIRING ENTRY, HAD
NOT BEEN EXCLUDED BY THE FORCE, OR THREATS OF FORCE, OF THE STRIKERS. 
(FN4)  THIS LEAVES NO SIGNIFICANT ISSUE OF FACT FOR DECISION HERE.  THE
PRINCIPAL ISSUE OF LAW IS WHETHER THE STATE COURT HAD JURISDICTION TO
ENTERTAIN RUSSELL'S AMENDED COMPLAINT OR WHETHER THAT JURISDICTION HAD
BEEN PRE-EMPTED BY CONGRESS AND VESTED EXCLUSIVELY IN THE NATIONAL
LABOR RELATIONS BOARD. 

AT THE OUTSET, WE NOTE THAT THE UNION'S ACTIVITY IN THIS CASE CLEARLY
WAS NOT PROTECTED BY FEDERAL LAW.  INDEED THE STRIKE WAS CONDUCTED IN
SUCH A MANNER THAT IT COULD HAVE BEEN ENJOINED BY ALABAMA COURTS. 
YOUNGDAHL V. RAINFAIR, INC., 355 U.S. 131; AUTO WORKERS V. WISCONSIN
BOARD, 351 U.S. 266. 

IN THE LABURNUM CASE, SURPA, THE UNION, WITH INTIMIDATION AND THREATS
OF VIOLENCE, DEMANDED RECOGNITION TO WHICH IT WAS NOT ENTITLED.  IN
THAT MANNER, THE UNION PREVENTED THE EMPLOYER FROM USING ITS REGULAR
EMPLOYEES AND FORCED IT TO ABANDON A CONSTRUCTION CONTRACT WITH A
CONSEQUENT LOSS OF PROFITS.  THE EMPLOYER FILED A TORT ACTION IN A
VIRGINIA COURT AND RECEIVED A JUDGMENT FOR ABOUT $30,000 COMPENSATORY
DAMAGES, PLUS $100,000 PUNITIVE DAMAGES.  ON PETITION FOR CERTIORARI,
WE UPHELD THE STATE COURT'S JURISDICTION AND AFFIRMED ITS JUDGMENT.  WE
ASSUMED THAT THE CONDUCT OF THE UNION CONSTITUTED A VIOLATION OF SEC.
8(B)(1)(A) OF THE FEDERAL ACT.  NEVERTHELESS, WE HELD THAT THE FEDERAL
ACT DID NOT EXPRESSLY OR IMPLIEDLY DEPRIVE THE EMPLOYER OF ITS COMMON
LAW RIGHT OF ACTION IN TORT FOR DAMAGES. 

THIS CASE IS SIMILAR TO LABURNUM IN MANY RESPECTS.  IN EACH, A STATE
COURT AWARDED COMPENSATORY AND PUNITIVE DAMAGES AGAINST A UNION FOR
CONDUCT WHICH WAS A TORT AND ALSO ASSUMED TO BE AN UNFAIR LABOR
PRACTICE.  THE SITUATIONS ARE COMPARABLE EXCEPT THAT, IN THE INSTANT
CASE, THE BOARD IS AUTHORIZED, UNDER SEC. 10(C) OF THE FEDERAL ACT, TO
AWARD BACK PAY TO EMPLOYEES UNDER CERTAIN CIRCUMSTANCES.  WE ASSUME,
FOR THE PURPOSE OF ARGUMENT, THAT THE BOARD WOULD HAVE HAD AUTHORITY TO
AWARD BACK PAY TO RUSSELL.  (FN5)  PETITIONERS ASSERT THAT THE
POSSIBILITY OF PARTIAL RELIEF DISTINGUISHES THE INSTANT CASE FROM
LABURNUM.  IT IS OUR VIEW THAT CONGRESS HAS NOT MADE SUCH A DISTINCTION
AND THAT IT HAS NOT, IN EITHER CASE, DEPRIVED A VICTIM OF THE KIND OF
CONDUCT HERE INVOLVED OF COMMON-LAW RIGHTS OF ACTION FOR ALL DAMAGES
SUFFERED. 

GIVES LIMITED AUTHORITY TO THE BOARD TO AWARD BACK PAY TO EMPLOYEES. 
THE MATERIAL PROVISIONS ARE THE FOLLOWING: 

"IF UPON THE PREPONDERANCE OF THE TESTIMONY TAKEN THE BOARD SHALL BE
OF THE OPINION THAT ANY PERSON NAMED IN THE COMPLAINT HAS ENGAGED IN OR
IS ENGAGING IN ANY SUCH UNFAIR LABOR PRACTICE, THEN THE BOARD SHALL
STATE ITS FINDINGS OF FACT AND SHALL ISSUE AND CAUSE TO BE SERVED ON
SUCH PERSON AN ORDER REQUIRING SUCH PERSON TO CEASE AND DESIST FROM
SUCH UNFAIR LABOR PRACTICE, AND TO TAKE SUCH AFFIRMATIVE ACTION
INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY, AS WILL
EFFECTUATE THE POLICIES OF THIS ACT:  PROVIDED, THAT WHERE AN ORDER
DIRECTS REINSTATEMENT OF AN EMPLOYEE, BACK PAY MAY BE REQUIRED OF THE
EMPLOYER OR LABOR ORGANIZATION, AS THE CASE MAY BE, RESPONSIBLE FOR THE
DISCRIMINATION SUFFERED BY HIM  ...  ."  61 STAT. 147, 29 U.S.C. SEC.
160(C). 

IF AN AWARD OF DAMAGES BY A STATE COURT FOR CONDUCT SUCH AS IS
INVOLVED IN THE PRESENT CASE IS NOT OTHERWISE PROHIBITED BY THE FEDERAL
ACTS, IT CERTAINLY IS NOT PROHIBITED BY THE PROVISIONS OF SEC. 10(C). 
THIS SECTION IS FAR FROM BEING AN EXPRESS GRANT OF EXCLUSIVE
JURISDICTION SUPERSEDING COMMON-LAW ACTIONS, BY EITHER AN EMPLOYER OR
AN EMPLOYEE, TO RECOVER DAMAGES CAUSED BY THE TORTIOUS CONDUCT OF A
UNION.  TO MAKE AN AWARD, THE BOARD MUST FIRST BE CONVINCED THAT THE
AWARD WOULD "EFFECTUATE THE POLICIES" OF THE ACT.  "THE REMEDY OF BACK
PAY, IT MUST BE REMEMBERED, IS ENTRUSTED TO THE BOARD'S DISCRETION; IT
IS NOT MECHANICALLY COMPELLED BY THE ACT."  PHELPS DODGE CORP. V. LABOR
BOARD, 313 U.S. 177, 198.  THE POWER TO ORDER AFFIRMATIVE RELIEF UNDER
SEC. 10(C) IS MERELY INCIDENTAL TO THE PRIMARY PURPOSE OF CONGRESS TO
STOP AND TO PREVENT UNFAIR LABOR PRACTICES.  CONGRESS DID NOT ESTABLISH
A GENERAL SCHEME AUTHORIZING THE BOARD TO AWARD FULL COMPENSATORY
DAMAGES FOR INJURIES CAUSED BY WRONGFUL CONDUCT.  UNITED WORKERS V.
LABURNUM CORP., 347 U.S. 656, 666-667.  IN VIRGINIA ELECTRIC CO. V.
LABOR BOARD, 319 U.S. 533, 543, IN SPEAKING OF THE BOARD'S POWER TO
GRANT AFFIRMATIVE RELIEF, WE SAID: 

"THE INSTANT REIMBURSEMENT ORDER (WHICH DIRECTS REIMBURSEMENT BY AN
EMPLOYER OF DUES CHECKED OFF FOR A DOMINATED UNION) IS NOT A REDRESS
FOR A PRIVATE WRONG.  LIKE A BACK PAY ORDER, IT DOES RESTORE TO THE
EMPLOYEES IN SOME MEASURE WHAT WAS TAKEN FROM THEM BECAUSE OF THE
COMPANY'S UNFAIR LABOR PRACTICES.  IN THIS, BOTH THESE TYPES OF
MONETARY AWARDS SOMEWHAT RESEMBLE COMPENSATION FOR PRIVATE INJURY, BUT
IT MUST BE CONSTANTLY REMEMBERED THAT BOTH ARE REMEDIES CREATED BY
STATUTE - THE ONE EXPLICITLY AND THE OTHER IMPLICITLY IN THE CONCEPT OF
EFFECTUATION OF THE POLICIES OF THE ACT - WHICH ARE DESIGNED TO AID IN
ACHIEVING THE ELIMINATION OF INDUSTRIAL CONFLICT.  THEY VINDICATE
PUBLIC, NOT PRIVATE, RIGHTS,  CF.  AGWILINES, INC. V. LABOR BOARD, 87
F.2D 146, 150-151; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177. 
FOR THIS REASON IT IS ERRONEOUS TO CHARACTERIZE THIS REIMBURSEMENT
ORDER AS PENAL OR AS THE ADJUDICATION OF A MASS TORT.  IT IS EQUALLY
WRONG TO FETTER THE BOARD'S DISCRETION BY COMPELLING IT TO OBSERVE
CONVENTIONAL COMMON LAW OR CHANCERY PRINCIPLES IN FASHIONING SUCH AN
ORDER, OR TO FORCE IT TO INQUIRE INTO THE AMOUNT OF DAMAGES ACTUALLY
SUSTAINED.  WHETHER AND TO WHAT EXTENT SUCH MATTERS SHOULD BE
CONSIDERED IS A COMPLEX PROBLEM FOR THE BOARD TO DECIDE IN THE LIGHT OF
ITS ADMINISTRATIVE EXPERIENCE AND KNOWLEDGE." 

IN LABURNUM, IN DISTINGUISHING GARNER V. TEAMSTERS UNION, 346 U.S.
485, WE SAID: 

"TO THE EXTENT THAT CONGRESS PRESCRIBED PREVENTIVE PROCEDURE AGAINST
UNFAIR LABOR PRACTICES, THAT CASE RECOGNIZED THAT THE ACT EXCLUDED
CONFLICTING STATE PROCEDURE TO THE SAME END.  TO THE EXTENT, HOWEVER,
THAT CONGRESS HAS NOT PRESCRIBED PROCEDURE FOR DEALING WITH THE
CONSEQUENCES OF TORTIOUS CONDUCT ALREADY COMMITTED, THERE IS NO GROUND
FOR CONCLUDING THAT EXISTING CRIMINAL PENALTIES OR LIABILITIES FOR
TORTIOUS CONDUCT HAVE BEEN ELIMINATED.  THE CARE WE TOOK IN THE GARNER
CASE TO DEMONSTRATE THE EXISTING CONFLICT BETWEEN STATE AND FEDERAL
ADMINISTRATIVE REMEDIES IN THAT CASE WAS, ITSELF, A RECOGNITION THAT IF
NO CONFLICT HAD EXISTED, THE STATE PROCEDURE WOULD HAVE SURVIVED."  347
U.S., AT 665. 

IN THIS CASE THERE IS A POSSIBILITY THAT BOTH THE BOARD AND THE STATE
COURTS HAVE JURISDICTION TO AWARD LOST PAY.  HOWEVER, THAT POSSIBILITY
DOES NOT CREATE THE KIND OF "CONFLICT" OF REMEDIES REFERRED TO IN
LABURNUM.  OUR CASES WHICH HOLD THAT STATE JURISDICTION IS PRE-EMPTED
ARE DISTINGUISHABLE.  IN THEM WE HAVE BEEN CONCERNED LEST ONE FORUM
WOULD ENJOIN, AS ILLEGAL, CONDUCT WHICH THE OTHER FORUM WOULD FIND
LEGAL, OR THAT THE STATE COURTS WOULD RESTRICT THE EXERCISE OF RIGHTS
GUARANTEED BY THE FEDERAL ACTS.  (FN6) 

IN THE INSTANT CASE, THERE WOULD BE NO "CONFLICT" EVEN IF ONE FORUM
AWARDED BACK PAY AND THE OTHER DID NOT.  THERE IS NOTHING INCONSISTENT
IN HOLDING THAT AN EMPLOYEE MAY RECOVER LOST WAGES AS DAMAGES IN A TORT
ACTION UNDER STATE LAW, AND ALSO HOLDING THAT THE AWARD OF SUCH DAMAGES
IS NOT NECESSARY TO EFFECTUATE THE PURPOSES OF THE FEDERAL ACT. 

IN ORDER TO EFFECTUATE THE POLICIES OF THE ACT, CONGRESS HAS ALLOWED
THE BOARD, IN ITS DISCRETION, TO AWARD BACK PAY.  SUCH AWARDS MAY
INCIDENTALLY PROVIDE SOME COMPENSATORY RELIEF TO VICTIMS OF UNFAIR
LABOR PRACTICES.  THIS DOES NOT MEAN THAT CONGRESS NECESSARILY INTENDED
THIS DISCRETIONARY RELIEF TO CONSTITUTE AN EXCLUSIVE PATTERN OF MONEY
DAMAGES FOR PRIVATE INJURIES.  NOR DO WE THINK THAT THE ALABAMA TORT
REMEDY, AS APPLIED IN THIS CASE, ALTERED RIGHTS AND DUTIES
AFFIRMATIVELY ESTABLISHED BY CONGRESS.   TO THE EXTENT THAT A BACK-PAY
AWARD MAY PROVIDE RELIEF FOR VICTIMS OF AN UNFAIR LABOR PRACTICE, IT IS
A PARTIAL ALTERNATIVE TO A SUIT IN THE STATE COURTS FOR LOSS OF
EARNINGS.  IF THE EMPLOYEE'S COMMON-LAW RIGHTS OF ACTION AGAINST A
UNION TORTFEASOR ARE TO BE CUT OFF, THAT WOULD IN EFFECT GRANT TO
UNIONS A SUBSTANTIAL IMMUNITY FROM THE CONSEQUENCES OF MASS PICKETING
OR COERCION SUCH AS WAS EMPLOYED DURING THE STRIKE IN THE PRESENT
CASE. 

THE SITUATION MAY BE ILLUSTRATED BY SUPPOSING, IN THE INSTANT CASE,
THAT RUSSELL'S CAR HAD BEEN TURNED OVER RESULTING IN DAMAGE TO THE CAR
AND PERSONAL INJURY TO HIM.  UNDER STATE LAW PRESUMABLY HE COULD HAVE
RECOVERED FOR MEDICAL EXPENSES, PAIN AND SUFFERING AND PROPERTY
DAMAGES.  SUCH ITEMS OF RECOVERY ARE BEYOND THE SCOPE OF PRESENT BOARD
REMEDIAL ORDERS.  FOLLOWING THE REASONING ADOPTED BY US IN THE LABURNUM
CASE, WE BELIEVE THAT STATE JURISDICTION TO AWARD DAMAGES FOR THESE
ITEMS IS NOT PRE-EMPTED.  CF. INTERNATIONAL ASSN.  OF MACHINISTS V.
GONZALES, ANTE, P. 617, DECIDED THIS DAY.   NOR CAN WE SEE ANY
DIFFERENCE, SIGNIFICANT FOR PRESENT PURPOSES, BETWEEN TORT DAMAGES TO
RECOVER MEDICAL EXPENSES AND TORT DAMAGES TO RECOVER LOST WAGES.  WE
CONCLUDE THAT AN EMPLOYEE'S RIGHT TO RECOVER, IN THE STATE COURTS, ALL
DAMAGES CAUSED HIM BY THIS KIND OF TORTIOUS CONDUCT CANNOT FAIRLY BE
SAID TO BE PRE-EMPTED WITHOUT A CLEARER DECLARATION OF CONGRESSIONAL
POLICY THAN WE FIND HERE.  OF COURSE, RUSSELL COULD NOT COLLECT
DUPLICATE COMPENSATION FOR LOST PAY FROM THE STATE COURTS AND THE
BOARD. 

PUNITIVE DAMAGES CONSTITUTE A WELL-SETTLED FORM OF RELIEF UNDER THE
LAW OF ALABAMA WHEN THERE IS A WILLFUL AND MALICIOUS WRONG.  PENNEY V.
WARREN, 217 ALA. 120, 115 SO. 16.  TO THE EXTENT THAT SUCH RELIEF IS
PENAL IN ITS NATURE, IT IS ALL THE MORE CLEARLY NOT GRANTED TO THE
BOARD BY THE FEDERAL ACTS.  REPUBLIC STEEL CORP. V. LABOR BOARD, 311
U.S. 7, 10-12.  THE POWER TO IMPOSE PUNITIVE SANCTIONS IS WITHIN THE
JURISDICTION OF THE STATE COURTS BUT NOT WITHIN THAT OF THE BOARD.  IN
LABURNUM WE APPROVED A JUDGMENT THAT INCLUDED $100,000 IN PUNITIVE
DAMAGES.  FOR THE EXERCISE OF THE POLICE POWER OF A STATE OVER SUCH A
CASE AS THIS, SEE ALSO, YOUNGDAHL V. RAINFAIR, INC., 355 U.S. 131; AUTO
WORKERS V. WISCONSIN BOARD, 351 U.S. 266, 274, N. 12. 

ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF ALABAMA IS
AFFIRMED. 

FN1  61 STAT. 136, 29 U.S.C. SEC. 141. 

FN2  WE ASSUME, FOR THE PURPOSES OF THIS CASE, THAT THE UNION'S
CONDUCT DID VIOLATE SEC. 8(B)(1)(A) WHICH PROVIDES: 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7: PROVIDED, THAT THIS PARAGRAPH SHALL NOT
IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN  ...
."  61 STAT. 141, 29 U.S.C. SEC. 158(B)(1)(A). 

FN3 AMONG THE INSTRUCTIONS GIVEN TO THE JURY WERE THE FOLLOWING
REQUESTED BY PETITIONERS: 

"5.  I CHARGE YOU THAT UNLESS YOU ARE REASONABLY SATISFIED FROM THE
EVIDENCE IN THIS CASE THAT THE PROXIMATE CAUSE OF RESPONDENT'S
INABILITY TO WORK AT THE DECATUR PLANT OF CALUMET AND HECLA
CONSOLIDATED COPPER COMPANY (WOLVERINE TUBE DIVISION) DURING THE PERIOD
FROM JULY 18, 1951 TO AUGUST 22, 1951, WAS THAT A PICKET LINE WAS
CONDUCTED BY THE PETITIONERS IN A MANNER WHICH BY FORCE AND VIOLENCE,
OR THREATS OF FORCE AND VIOLENCE PREVENTED RESPONDENT FROM ENTERING THE
PLANT, AND UNLESS YOU ARE ALSO REASONABLY SATISFIED FROM THE EVIDENCE
THAT WORK WOULD HAVE BEEN AVAILABLE TO RESPONDENT IN THE PLANT DURING
SAID PERIOD, EXCEPT FOR PICKETING IN SUCH MANNER, YOU SHOULD NOT RETURN
A VERDICT FOR THE RESPONDENT. 

"6.  I CHARGE YOU THAT UNLESS YOU ARE REASONABLY SATISFIED FROM THE
EVIDENCE THAT THE ACTS COMPLAINED OF BY RESPONDENT OCCURRED, AND THAT
THE RESPONDENT SUFFERED A LOSS OF WAGES AS THE NATURAL AND PROXIMATE
RESULT OF SAID ACTS, YOU SHOULD RETURN YOUR VERDICT FOR THE
PETITIONERS." 

IN ITS MAIN CHARGE TO THE JURY, THE TRIAL COURT INCLUDED THE
FOLLOWING STATEMENT: 

"IF, IN THIS CASE, AFTER CONSIDERING ALL THE EVIDENCE AND UNDER THE
INSTRUCTIONS I HAVE GIVEN YOU, YOU ARE REASONABLY SATISFIED THAT AT THE
TIME COMPLAINED OF AND IN DOING THE ACTS CHARGED, THE PETITIONERS  ...
ACTUATED BY MALICE AND ACTUATED BY ILL-WILL, COMMITTED THE UNLAWFUL AND
WRONGFUL ACTS ALLEGED, YOU, IN ADDITION TO THE ACTUAL DAMAGES, IF ANY,
MAY GIVE DAMAGES FOR THE SAKE OF EXAMPLE AND BY WAY OF PUNISHING THE
PETITIONERS OR FOR THE PURPOSE OF MAKING THE PETITIONERS SMART, NOT
EXCEEDING IN ALL THE AMOUNT CLAIMED IN THE COMPLAINT. 

"IN ORDER TO AUTHORIZE THE FIXING OF SUCH DAMAGES, YOU MUST BE
REASONABLY SATISFIED FROM THE EVIDENCE THAT THERE WAS PRESENT
WILLFULNESS OR WANTONNESS AND A RECKLESS DISREGARD OF THE RIGHTS OF THE
OTHER PERSON." 

FN4  ON THE EVIDENCE BEFORE IT, THE JURY WAS ENTITLED TO FIND THAT
ABOUT 400 OF THE EMPLOYEES WHO HAD ATTENDED UNION MEETINGS ON JULY 17
WERE IN FRONT OF THE PLANT GATES AT 8 O'CLOCK THE FOLLOWING MORNING.  A
CROWD OF BETWEEN 1,500 AND 2,000 PEOPLE, INCLUDING THE ABOVE 400, WAS
NEAR THE PLANT GATES WHEN THE FIRST SHIFT WAS DUE TO REPORT FOR WORK AT
8 A.M.  BETWEEN 700 AND 800 AUTOMOBILES WERE PARKED ALONG THE STREET
WHICH LED TO AND ENDED AT THE PLANT.  A PICKET LINE OF 25 TO 30
STRIKERS, CARRYING SIGNS AND WALKING ABOUT THREE FEET APART, MOVED IN A
CIRCLE EXTENDING COMPLETELY ACROSS THE STREET.  ADJACENT TO THE STREET
AT THAT POINT, THERE WAS A GROUP OF ABOUT 150 PEOPLE, SOME OF WHOM
CHANGED PLACES WITH THOSE IN THE CIRCLE.  ON THE OTHER SIDE OF THE
STREET, THERE WAS ANOTHER GROUP OF ABOUT 50 PEOPLE.  MANY MEMBERS OF
THE FIRST SHIFT CAME, BRINGING THEIR LUNCHES, IN EXPECTATION OF WORKING
THAT DAY AS USUAL.  RUSSELL WAS ONE OF THESE AND HE TRIED TO REACH THE
PLANT GATES.  BECAUSE OF THE CROWD, HE PROCEEDED SLOWLY TO WITHIN 20 OR
30 FEET OF THE PICKET LINE.  THERE HE FELT A DRAG ON HIS CAR AND
STOPPED.  WHILE THUS STOPPED, THE REGIONAL DIRECTOR OF THE UNION CAME
TO HIM AND SAID, "IF YOU ARE SALARIED, YOU CAN GO ON IN.  IF YOU ARE
HOURLY, THIS IS AS FAR AS YOU CAN GO."  RUSSELL NEVERTHELESS EDGED
TOWARD THE ENTRANCE UNTIL SOMEONE NEAR THE PICKET LINE CALLED OUT,
"HE'S GOING TO TRY TO GO THROUGH."  ANOTHER YELLED, "LOOKS LIKE WE'RE
GOING TO HAVE TO TURN HIM OVER TO GET RID OF HIM," AND SEVERAL YELLED,
"TURN HIM OVER."  NO ONE ACTUALLY ATTEMPTED TO TURN OVER RUSSELL'S CAR
BUT THE PICKET LINE EFFECTIVELY BLOCKED HIS FURTHER PROGRESS.  HE
REMAINED THERE FOR MORE THAN AN HOUR AND A HALF.  FROM TIME TO TIME, HE
TRIED TO EASE HIS CAR FORWARD BUT, WHEN HE DID SO, THE PICKETS WOULD
STOP WALKING AND TURN THEIR SIGNS TOWARD HIS CAR, SOME OF THEM TOUCHING
THE CAR.  WHEN HE BECAME CONVINCED THAT HE COULD NOT GET THROUGH THE
PICKET LINE WITHOUT RUNNING OVER SOMEBODY OR GETTING TURNED OVER, HE
WENT HOME.  THE PLANT'S OFFICES WERE OPEN AND SALARIED EMPLOYEES WORKED
THERE THROUGHOUT THE STRIKE.  RUSSELL AND OTHER HOURLY EMPLOYEES
NECESSARY TO OPERATE THE PLANT WERE PREVENTED FROM REACHING THE COMPANY
GATES IN THE MANNER DESCRIBED.  DURING THE NEXT FIVE WEEKS HE KEPT IN
TOUCH WITH THE UNCHANGED SITUATION AT THE PLANT ENTRANCE, AND SET ABOUT
SECURING SIGNATURES TO A PETITION OF ENOUGH EMPLOYEES, WHO WISHED TO
RESUME WORK, TO OPERATE THE PLANT.  AFTER OBTAINING OVER 200
SIGNATURES, THE PETITION WAS PRESENTED TO THE COMPANY ON OR ABOUT
AUGUST 18.  ON AUGUST 20, THE COMPANY ADVERTISED IN A LOCAL NEWSPAPER
THAT ON AUGUST 22 THE PLANT WOULD RESUME OPERATIONS.  ALL EMPLOYEES
WERE REQUESTED TO REPORT TO WORK AT 8 A.M. ON AUGUST 22.  AT THAT TIME,
ABOUT 70 STATE HIGHWAY PATROL OFFICERS AND 20 LOCAL POLICE OFFICERS
WERE AT THE GATES AND CONVOYED INTO THE PLANT ABOUT 230 HOURLY PAID
EMPLOYEES REPORTING FOR WORK.  RUSSELL WAS AMONG THEM AND HE WAS
IMMEDIATELY PUT TO WORK.  THEREAFTER, HE HAD NO DIFFICULTY IN ENTERING
THE PLANT. 

THERE ALSO WAS EVIDENCE THAT ON AUGUST 20 THE COMPANY SOUGHT TO RUN
ITS SWITCH ENGINE OUT OF THE YARD TO BRING IN CARS CONTAINING COPPER
INGOTS.  THE ENGINE, HOWEVER, WAS MET BY STRIKERS - SOME OF WHOM STOOD
IN ITS PATH.  ONE PULLED OUT THE ENGINE'S IGNITION KEY AND THREW IT
AWAY.  OTHERS IN THE CROWD CUT THE ENGINE'S FAN BELTS, AIR HOSES AND
SPARK PLUG WIRES, REMOVED THE DISTRIBUTOR HEAD AND DISABLED THE
BRAKES.  THE ENGINE WAS THEN ROLLED BACK INTO THE PLANT YARD BY THE
CREW WITHOUT ITS MISSION HAVING BEEN ACCOMPLISHED.  THERE IS NO
EVIDENCE THAT RUSSELL WAS PRESENT ON THIS OCCASION. 

FN5  THE BOARD HAS HELD THAT IT CAN AWARD BACK PAY WHERE A UNION HAS
WRONGFULLY CAUSED A TERMINATION IN THE EMPLOYEE STATUS, BUT NOT IN A
CASE SUCH AS THIS WHEN A UNION MERELY INTERFERES WITH ACCESS TO WORK BY
ONE WHO REMAINS AT ALL TIMES AN EMPLOYEE.  IN RE UNITED FURNITURE
WORKERS OF AMERICA, CIO, 84 N.L.R.B. 563, 565.  THAT VIEW WAS
ACKNOWLEDGED IN PROGRESSIVE MINE WORKERS V. LABOR BOARD, 187 F.2D 298,
306-307, AND HAS BEEN ADHERED TO BY THE BOARD IN SUBSEQUENT CASES. 
E.G., LOCAL 983, 115 N.L.R.B. 1123.  PETITIONERS CONTEND THAT THE
BOARD'S ABOVE INTERPRETATION OF ITS OWN POWER CONFLICTS WITH THE
RATIONALE OF PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, AND
VIRGINIA ELECTRIC CO. V. LABOR BOARD, 319 U.S. 533.  SEE ALSO, IN RE
UNITED MINE WORKERS, 92 N.L.R.B. 916, 920 (DISSENTING OPINION); UNITED
ELECTRICAL, RADIO AND MACHINE WORKERS, 95 N.L.R.B. 391, 392, N. 3.  AS
THE DECISION OF THIS QUESTION IS NOT ESSENTIAL IN THE INSTANT CASE, WE
DO NOT PASS UPON IT. 

FN6  SEE, E.G., SAN DIEGO COUNCIL V. GARMON, 353 U.S. 26 (INVOLVING
STATE INJUNCTION OF PEACEFUL PICKETING); AMALGAMATED MEAT CUTTERS V.
FAIRLAWN MEATS, INC., 353 U.S. 20, 23 (SAME); UNITED MINE WORKERS V.
ARKANSAS OAK FLOORING CO., 351 U.S. 62, 75 (SAME); GARNER V. TEAMSTERS
UNION, 346 U.S. 485, 498-500 (SAME); WEBER V. ANHEUSER-BUSCH, INC., 348
U.S. 468, 475-476, 479-481 (INVOLVING STATE INJUNCTION OF A STRIKE AND
PEACEFUL PICKETING); BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S. 383,
394-395, 398-399 (INVOLVING STATE STATUTE RESTRICTING RIGHT TO STRIKE
OF, AND COMPELLING ARBITRATION BY, PUBLIC UTILITY EMPLOYEES);
AUTOMOBILE WORKERS V. O'BRIEN, 339 U.S. 454, 456-459 (INVOLVING STATE
STATUTE RESTRICTING RIGHT TO STRIKE BY REQUIRING, AS A CONDITION
PRECEDENT, A STRIKE VOTE RESULTING IN AN AFFIRMATIVE MAJORITY); LA
CROSSE TELEPHONE CORP. V. WISCONSIN BOARD, 336 U.S. 18, 24-26
(INVOLVING STATE CERTIFICATION OF THE APPROPRIATE UNIT FOR COLLECTIVE
BARGAINING); BETHLEHEM STEEL CO. V. NEW YORK BOARD, 330 U.S. 767, 773
776 (SAME); HILL V. FLORIDA EX REL. WATSON, 325 U.S. 538, 541-543
(INVOLVING STATE STATUTE RESTRICTING ELIGIBILITY TO BE A LABOR
REPRESENTATIVE). 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE ISSUE IN THIS CASE IS WHETHER THE TAFT-HARTLEY ACT HAS PRE-EMPTED
A STATE'S POWER TO ASSESS CONPENSATORY AND PUNITIVE DAMAGES AGAINST A
UNION FOR DENYING A WORKER ACCESS TO A PLANT DURING AN ECONOMIC STRIKE
CONDUCT THAT THE FEDERAL ACT SUBJECTS TO CORRECTION AS AN UNFAIR LABOR
PRACTICE UNDER SEC. 8(B)(1)(A).  IF CONGRESS HAD SPECIFICALLY PROVIDED
THAT THE STATES WERE WITHOUT POWER TO AWARD DAMAGES UNDER SUCH
CIRCUMSTANCES, OR IF IT HAD EXPRESSLY SANCTIONED SUCH REDRESS IN THE
STATE COURT, OUR COURSE OF ACTION WOULD BE CLEAR.  BECAUSE CONGRESS DID
NOT IN SPECIFIC WORDS MAKE ITS WILL MANIFEST, INTERNATIONAL UNION V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, 336 U.S. 245, 252, WE MUST BE
GUIDED BY WHAT IS CONSISTENT WITH THE SCHEME OF REGULATION THAT
CONGRESS HAS ESTABLISHED. 

IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF THE TAFT-HARTLEY ACT THAT
IN SUBJECTING CERTAIN CONDUCT TO REGULATION AS AN UNFAIR LABOR PRACTICE
CONGRESS HAD NO INTENTION OF IMPAIRING A STATE'S TRADITIONAL POWERS TO
PUNISH OR IN SOME INSTANCES PREVENT THAT SAME CONDUCT WHEN IT WAS
OFFENSIVE TO WHAT A LEADING CASE TERMED "SUCH TRADITIONALLY LOCAL
MATTERS AS PUBLIC SAFETY AND ORDER AND THE USE OF STREETS AND
HIGHWAYS."  ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740, 749. 
BOTH PROPONENTS AND CRITICTS OF THE MEASURE CONCEDED THAT CERTAIN
UNFAIR LABOR PRACTICES WOULD INCLUDE ACTS "CONSTITUTING VIOLATION OF
THE LAW OF THE STATE," (FN1) "ILLEGAL UNDER STATE LAW," (FN2)
"PUNISHABLE UNDER STATE AND LOCAL POLICE LAW," (FN3) OR ACTS OF SUCH
NATURE THAT "THE MAIN REMEDY FOR SUCH CONDITIONS IS PROSECUTION UNDER
STATE LAW AND BETTER LOCAL LAW ENFORCEMENT."  (FN4)  IT WAS THIS ROLE
OF STATE LAW THAT THE LAWMAKERS REFERRED TO WHEN THEY CONCEDED THAT
THERE WOULD BE TWO REMEDIES" (FN5) FOR A VIOLENT UNFAIR LABOR
PRACTICE.  FOR EXAMPLE, WHEN SENATOR TAFT WAS EXPLAINING TO THE SENATE
THE IMPORT OF THE SEC. 8(B)(1)(A) UNFAIR LABOR PRACTICE, HE RESPONDED
IN THIS MANNER TO A SUGGESTION THAT IT WOULD "RESULT IN DUPLICATION OF
SOME OF THE STATE LAWS": 

"I MAY SAY FURTHER THAT ONE OF THE ARGUMENTS HAS SUGGESTED THAT IN
CASE THIS PROVISION COVERED VIOLENCE IT DUPLICATED STATE LAW.  I WISH
TO POINT OUT THAT THE PROVISIONS AGREED TO BY THE COMMITTEE COVERING
UNFAIR LABOR PRACTICES ON THE PART OF LABOR UNIONS ALSO MIGHT DUPLICATE
TO SOME EXTENT THAT STATE LAW.  SECONDARY BOYCOTTS, JURISDICTIONAL
STRIKES, AND SO FORTH, MAY INVOLVE SOME VIOLATION OF STATE LAW
RESPECTING VIOLENCE WHICH MAY BE CRIMINAL, AND SO TO SOME EXTENT THE
MEASURE MAY BE DUPLICATING THE REMEDY EXISTING UNDER STATE LAW.  BUT
THAT, IN MY OPINION, IS NO VALID ARGUMENT."  (FN6) 

THIS FREQUENT REFERENCE TO A STATE'S CONTINUING POWER TO PRESCRIBE
CRIMINAL PUNISHMENTS FOR CONDUCT DEFINED AS AN UNFAIR LABOR PRACTICE BY
THE FEDERAL ACT IS IN SHARP CONTRAST TO THE ABSENCE OF ANY REFERENCE TO
A STATE'S POWER TO AWARD DAMAGES FOR THAT CONDUCT.    IN THE ABSENCE OF
A RELIABLE INDICATION OF CONGRESSIONAL INTENT, THE COURT SHOULD BE
GUIDED BY PRINCIPLES THAT LEAD TO A RESULT CONSISTENT WITH THE
LEGISLATIVE WILL.  IT IS CLEAR THAT THE STATES MAY NOT TAKE ACTION THAT
FETTERS THE EXERCISE OF RIGHTS PROTECTED BY THE FEDERAL ACT, HILL V.
FLORIDA, 325 U.S. 538, OR CONSTITUTES A COUNTERPART TO ITS REGULATORY
SCHEME, INTERNATIONAL UNION OF UNITED AUTOMOBILE WORKERS V. O'BRIEN,
339 U.S. 454, OR DUPLICATES ITS REMEDIES, GARNER V. TEAMSTERS UNION,
346 U.S. 485.  THE COURT MUST DETERMINE WHETHER THE STATE LAW "STANDS
AS AN OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES
AND OBJECTIVES OF CONGRESS."  HINES V. DAVIDOWITZ, 312 U.S. 52, 67.  IF
THE STATE ACTION WOULD FRUSTRATE THE POLICIES EXPRESSED OR IMPLIED IN
THE FEDERAL ACT, THEN IT MUST FALL.  THE STATE ACTION HERE - A JUDGMENT
REQUIRING A CERTIFIED BARGAINING REPRESENTATIVE TO PAY PUNITIVE AND
COMPENSATORY DAMAGES TO A NON-STRIKER WHO LOST WAGES WHEN STRIKING
UNION MEMBERS DENIED HIM ACCESS TO THE PLANT - MUST BE TESTED AGAINST
THAT STANDARD. 

PETITIONERS DO NOT DENY THE STATE'S POWER TO AWARD DAMAGES AGAINST
INDIVIDUALS OR AGAINST A UNION FOR PHYSICAL INJURIES INFLICTED IN THE
COURSE OF CONDUCT REGULATED UNDER THE FEDERAL ACT.  (FN7) THE
MAJORITY'S ILLUSTRATION INVOLVING FACTS OF THAT SORT IS THEREFORE
BESIDE THE POINT.  BUT THE POWER TO AWARD DAMAGES FOR PERSONAL INJURIES
DOES NOT NECESSARILY IMPLY A LIKE POWER FOR OTHER FORMS OF MONETARY
LOSS.  THE UNPROVOKED INFLICTION OF PERSONAL INJURIES DURING A PERIOD
OF LABOR UNREST IS NEITHER TO BE EXPECTED NOR TO BE JUSTIFIED, BUT
ECONOMIC LOSS INEVITABLY ATTENDS WORK STOPPAGES.  FURTHERMORE, DAMAGES
FOR PERSONAL INJURIES MAY BE ASSESSED WITHOUT REGARD TO THE MERITS OF
THE LABOR CONTROVERSY, BUT IN ORDER TO DETERMINE THE CAUSE AND FIX THE
RESPONSIBILITY FOR ECONOMIC LOSS A COURT MUST CONSIDER THE WHOLE
BACKGROUND AND STATUS OF THE DISPUTE.  AS A CONSEQUENCE, PRECEDENTS OR
EXAMPLES INVOLVING PERSONAL INJURIES ARE INAPPOSITE WHEN THE PROBLEM IS
WHETHER A STATE COURT MAY AWARD DAMAGES FOR ECONOMIC LOSS SUSTAINED
FROM CONDUCT REGULATED BY THE FEDERAL ACT. 

THE MAJORITY ASSUMES FOR THE PURPOSE OF ARGUMENT THAT THE BOARD HAD
AUTHORITY TO COMPENSATE FOR THE LOSS OF WAGES INVOLVED HERE.  IF SO,
THEN THE REMEDY THE STATE COURT HAS AFFORDED DUPLICATES THE REMEDY
PROVIDED IN THE FEDERAL ACT AND IS SUBJECT TO THE OBJECTIONS VOICED IN
MY DISSENT IN INTERNATIONAL ASSOCIATION OF MACHINISTS V. GONZALES,
ANTE, P. 617, DECIDED THIS DAY.  BUT I FIND IT UNNECESSARY TO RELY UPON
ANY PARTICULAR CONSTRUCTION OF THE BOARD'S REMEDIAL AUTHORITY UNDER
SEC. 10(C) OF THE ACT.  IN MY VIEW, THIS IS A CASE IN WHICH THE STATE
IS WITHOUT POWER TO ASSESS DAMAGES WHETHER OR NOT LIKE RELIEF IS
AVAILABLE UNDER THE FEDERAL ACT.  EVEN IF WE ASSUME THAT THE BOARD HAD
NO AUTHORITY TO AWARD RESPONDENT BACK PAY IN THE CIRCUMSTANCES OF THIS
CASE, THE EXISTENCE OF SUCH A GAP IN THE REMEDIAL SCHEME OF FEDERAL
LEGISLATION IS NO LICENSE FOR THE STATES TO FASHION CORRECTIVES.  GUSS
V. UTAH LABOR RELATIONS BOARD, 353 U.S. 1.  THE FEDERAL ACT REPRESENTS
AN ATTEMPT TO BALANCE THE COMPETING INTERESTS OF EMPLOYEE, UNION AND
MANAGEMENT.  BY PROVIDING ADDITIONAL REMEDIES THE STATES MAY UPSET THAT
BALANCE AS EFFECTIVELY AS BY FRUSTRATING OR DUPLICATING EXISTING ONES. 

STATE-COURT DAMAGE AWARDS SUCH AS THOSE IN THE INSTANT CASE SHOULD BE
REVERSED BECAUSE OF THE IMPACT THEY WILL HAVE ON THE PURPOSES AND
OBJECTIVES OF THE FEDERAL ACT.  THE FIRST OBJECTION IS THE WANT OF
UNIFORMITY THIS INTRODUCES INTO LABOR REGULATION.  UNQUESTIONABLY THE
FEDERAL ACT SOUGHT TO CREATE A UNIFORM SCHEME OF NATIONAL LABOR
REGULATION.  BY APPROVING A STATE-COURT DAMAGE AWARD FOR CONDUCT
REGULATED BY THE TAFT-HARTLEY ACT, THE MAJORITY ASSURES THAT THE
CONSEQUENCES OF VIOLATING THE FEDERAL ACT WILL VARY FROM STATE TO STATE
WITH THE AVAILABILITY AND CONSTITUENT ELEMENTS OF A GIVEN RIGHT OF
ACTION AND THE PROCEDURES AND RULES OF EVIDENCE ESSENTIAL TO ITS
VINDICATION.  THE MATTER OF PUNITIVE DAMAGES IS AN EXAMPLE, THOUGH BY
NO MEANS THE ONLY ONE.  SEVERAL STATES HAVE OUTLAWED OR SEVERELY
RESTRICTED SUCH RECOVERIES.  (FN8)  THOSE STATES WHERE THE RECOVERY IS
STILL AVAILABLE ENTERTAIN WIDE DIFFERENCES OF OPINION ON THE END SOUGHT
TO BE SERVED BY THE EXACTION AND THE CONDITIONS AND TERMS ON WHICH IT
IS TO BE IMPOSED.  (FN9) 

THE MULTITUDE OF TRIBUNALS THAT TAKE PART IN IMPOSING DAMAGES ALSO
HAS AN UNFAVORABLE EFFECT UPON THE UNIFORMITY THE ACT SOUGHT TO
ACHIEVE.  ESPECIALLY IS THIS SO WHEN THE PLAINTIFF IS SEEKING PUNITIVE
OR OTHER DAMAGES FOR WHICH THE MEASURE OF RECOVERY IS VAGUE OR
NONEXISTENT.  DIFFERING ATTITUDES TOWARD LABOR ORGANIZATIONS WILL
INEVITABLY BE GIVEN EXPRESSION IN VERDICTS RETURNED BY JURORS IN
VARIOUS LOCALITIES.  THE PROVINCIALISM THIS WILL ENGENDER IN LABOR
REGULATION IS IN DIRECT OPPOSITION TO THE CARE CONGRESS TOOK IN
PROVIDING A SINGLE BODY OF NATIONWIDE JURISDICTION TO ADMINISTER ITS
CODE OF LABOR REGULATION.  BECAUSE OF THESE INESCAPABLE DIFFERENCES IN
THE CONTENT AND APPLICATION OF THE VARIOUS STATE LAWS, THE MAJORITY'S
DECISION ASSURES THAT THE CONSEQUENCES OF ENGAGING IN AN UNFAIR LABOR
PRACTICE WILL VARY FROM STATE TO STATE.  THAT IS INCONSISTENT WITH A
BASIC PURPOSE OF THE FEDERAL ACT. 

THE SCANT ATTENTION THE MAJORITY PAYS TO THE LARGE PROPORTION OF
PUNITIVE DAMAGES IN PLAINTIFF'S JUDGMENT (FN10) CANNOT DISGUISE THE
SERIOUS PROBLEM POSED BY THAT RECOVERY.  (FN11)  THE ELEMENT OF
DETERRENCE INHERENT IN THE IMPOSITION OR AVAILABILITY OF PUNITIVE
DAMAGES FOR CONDUCT THAT IS AN UNFAIR LABOR PRACTICE ORDINARILY MAKES
SUCH A RECOVERY REPUGNANT TO THE FEDERAL ACT.  THE PROSPECT OF SUCH
LIABILITY ON THE PART OF A UNION FOR THE ACTION OF ITS MEMBERS IN THE
COURSE OF CONCERTED ACTIVITIES WILL INEVITABLY INFLUENCE THE CONDUCT OF
LABOR DISPUTES.  THERE IS A VERY REAL PROSPECT OF STAGGERING PUNITIVE
DAMAGES ACCUMULATED THROUGH SUCCESSIVE ACTIONS BY PARTIES INJURED BY
MEMBERS WHO HAVE SUCCUMBED TO THE EMOTION THAT FREQUENTLY ACCOMPANIES
CONCERTED ACTIVITIES DURING LABOR UNREST.  THIS THREAT COULD RENDER
EVEN THOSE ACTIVITIES PROTECTED BY THE FEDERAL ACT TOO RISKY TO
UNDERTAKE.  MUST WE ASSUME THAT THE EMPLOYER WHO RESORTS TO A LOCKOUT
IS ALSO SUBJECT TO A SUCCESSION OF PUNITIVE RECOVERIES AT THE HANDS OF
HIS EMPLOYEES?  BY ITS DETERRENT EFFECT THE IMPOSITION OR AVAILABILITY
OF PUNITIVE DAMAGES SERVES A REGULATORY PURPOSE PARELLELING THAT OF THE
FEDERAL ACT.  IT IS PRECISELY SUCH AN INFLUENCE ON THE SENSITIVE AREA
OF LABOR RELATIONS THAT THE PRE-EMPTION DOCTRINES ARE DESIGNED TO
AVOID. 

THERE ARE OTHER VICES IN THE PUNITIVE RECOVERY.  A PRINCIPAL PURPOSE
OF THE WAGNER AND TAFT-HARTLEY ACTS IS TO PROMOTE INDUSTRIAL PEACE. 
(FN12)  CONSISTENT WITH THAT AIM CONGRESS CREATED TRIBUNALS, PROCEDURES
AND REMEDIES CALCULATED TO BRING LABOR DISPUTES TO A SPEEDY
CONCLUSION.  BECAUSE THE AVAILABILITY OF A STATE DAMAGE ACTION
DISCOURAGES RESORT TO THE CURATIVE FEATURES OF THE PERTINENT FEDERAL
LABOR LAW, IT CONFLICTS WITH THE AIMS OF THAT LEGISLATION.  IN A CASE
SUCH AS THE PRESENT ONE, FOR EXAMPLE, THE PLAINTIFF IS UNLIKELY TO SEEK
A CEASE-AND-DESIST ORDER, WHICH WOULD QUICKLY TERMINATE THE SEC.
8(B)(1)(A) UNFAIR LABOR PRACTICE, IF HE IS ASSURED COMPENSATORY DAMAGES
AND HAS THE PROSPECT OF A LUCRATIVE PUNITIVE RECOVERY AS WELL. 

IN ALABAMA, AS IN MANY OTHER JURISDICTIONS, THE THEORY OF PUNITIVE
DAMAGES IS AT VARIANCE WITH THE CURATIVE AIMS OF THE FEDERAL ACT.  THE
JURY IN THIS CASE WAS INSTRUCTED THAT IF IT FOUND THAT THE DEFENDANT
WAS "ACTUATED BY ILL-WILL" IT MIGHT AWARD "SMART MONEY" (PUNITIVE
DAMAGES) "FOR THE PURPOSE OF MAKING THE DEFENDANT SMART  ...  ." 
(FN13)  THE PARTIES TO LABOR CONTROVERSIES HAVE ENOUGH DEVICES FOR
MAKING ONE ANOTHER "SMART" WITHOUT THIS COURT PUTTING ITS STAMP OF
APPROVAL UPON ANOTHER.  I CAN CONCEIVE OF NOTHING MORE DISRUPTIVE OF
CONGENIAL LABOR RELATIONS THAN ARMING EMPLOYEE, UNION AND MANAGEMENT
WITH THE POTENTIAL FOR "SMARTING" ONE ANOTHER WITH EXEMPLARY DAMAGES. 
EVEN WITHOUT THE PUNITIVE ELEMENT, A DAMAGE ACTION HAS AN UNFAVORABLE
EFFECT ON THE CLIMATE OF LABOR RELATIONS.  EACH NEW STEP IN THE
PROCEEDINGS REKINDLES THE ANIMOSITY.  UNTIL FINAL JUDGMENT THE ACTION
IS A CONSTANT SOURCE OF FRICTION BETWEEN THE PARTIES.  IN THE PRESENT
CASE, FOR EXAMPLE, IT HAS BEEN NEARLY SIX YEARS SINCE THE COMPLAINT WAS
FILED.  THE NUMEROUS OTHER ACTIONS AWAITING OUTCOME OF THIS CASE
PORTEND MORE YEARS OF BITTERNESS BEFORE THE COURTS CAN CONCLUDE WHAT A
BOARD CEASE-AND-DESIST ORDER MIGHT HAVE SETTLED IN A WEEK.  AS THE
DISSENT WARNED IN UNITED CONSTR.  WORKERS V. LABURNUM CONSTR.  CORP.,
347 U.S. 656, 671, A STATE-COURT DAMAGE ACTION FOR CONDUCT THAT
CONSTITUTES AN UNFAIR LABOR PRACTICE "DRAGS ON AND ON IN THE COURTS,
KEEPING OLD WOUNDS OPEN, AND ROBBING THE ADMINSTRATIVE REMEDY OF THE
HEALING EFFECTS IT WAS INTENDED TO HAVE." 

THE MAJORITY PLACES ITS PRINCIPAL RELIANCE UPON UNITED CONSTR. 
WORKERS V. LABURNUM CONSTR.  CORP., SUPRA.  I JOINED IN THAT DECISION,
BUT MY UNDERSTANDING OF THE CASE DIFFERS FROM THAT OF THE MAJORITY
HERE.  THAT CASE WAS AN ACTION BY AN EMPLOYER AGAINST A STRANGER UNION
FOR DAMAGES FOR INTERFERENCE WITH CONTRACTUAL RELATIONS.  WHILE ENGAGED
IN CONSTRUCTION WORK ON CERTAIN MINING PROPERTIES THE PLAINTIFF
EMPLOYER HAD USED AFL LABORERS PURSUANT TO ITS COLLECTIVE BARGAINING
CONTRACT.  A FIELD REPRESENTATIVE OF THE UNITED CONSTRUCTION WORKERS,
AN AFFILIATE OF THE UNITED MINE WORKERS, INFORMED PLAINTIFF'S FOREMAN
THAT HE WAS WORKING IN "MINE WORKERS TERRITORY," AND DEMANDED THAT HIS
UNION BE RECOGNIZED AS THE SOLE BARGAINING AGENT FOR THE EMPLOYEES. 
OTHERWISE, HE THREATENED, THE UNITED CONSTRUCTION WORKERS WOULD "CLOSE
DOWN" ALL OF THE WORK.  AT THE TIME OF THIS ULTIMATUM NOT A SINGLE
WORKER IN LABURNUM'S EMPLOY BELONGED TO THE STRANGER UNION.  PLAINTIFF
REFUSED.  A FEW DAYS LATER THE UNION REPRESENTATIVE APPEARED AT THE JOB
SITE WITH A "ROUGH, BOISTEROUS CROWD" VARIOUSLY ESTIMATED FROM 40 TO
150 MEN.  SOME WERE DRUNK.  SOME CARRIED GUNS AND KNIVES.  PLAINTIFF'S
EMPLOYEES WERE INFORMED THAT THEY WOULD HAVE TO JOIN THE UNITED
CONSTRUCTION WORKERS OR "WE WILL KICK YOU OUT OF HERE."  A FEW WORKERS
YIELDED TO THE MOB.  THOSE WHO REFUSED WERE SUBJECTED TO A COURSE OF
THREATS AND INTIMIDATION UNTIL THEY WERE AFRAID TO PROCEED WITH THEIR
WORK.  AS A CONSEQUENCE, THE EMPLOYER WAS COMPELLED TO DISCONTINUE HIS
WORK ON THE CONTRACT AND IT WAS LOST.  THE EMPLOYER SUED THE UNITED
CONSTRUCTION WORKERS FOR THE PROFITS LOST BY THIS INTERFERENCE,
RECOVERING COMPENSATORY AND PUNITIVE DAMAGES.  (FN14)  THIS COURT
AFFIRMED. 

THERE ARE AT LEAST THREE CRUCIAL DIFFERENCES BETWEEN THIS CASE AND
LABURNUM.  FIRST, IN THIS CASE THE PLAINTIFF IS SEEKING DAMAGES FOR AN
INTERFERENCE WITH HIS RIGHT TO WORK DURING A STRIKE.  SINCE THE RIGHT
TO REFRAIN FROM CONCERTED ACTIVITIES IS PROTECTED BY SEC. 7 OF THE ACT,
A SEC. 8(B)(1)(A) UNFAIR LABOR PRACTICE IS INHERENT IN THE WRONG OF
WHICH PLAINTIFF COMPLAINS, AND THE FEDERAL ACT OFFERS MACHINERY TO
CORRECT IT.  THE SEC. 8(B)(1)(A) UNFAIR LABOR PRACTICE IN LABURNUM, ON
THE OTHER HAND, WAS INVOLVED ONLY FORTUITOUSLY.  DAMAGES WERE AWARDED
FOR INTERFERENCE WITH THE CONTRACTUAL RELATIONSHIP BETWEEN THE EMPLOYER
AND THE PARTIES FOR WHOM THE CONSTRUCTION WORK WAS BEING PERFORMED. 
THE MEANS DEFENDANTS CHOSE TO EFFECT THAT INTERFERENCE HAPPENED TO
CONSTITUTE AN UNFAIR LABOR PRACTICE, BUT THE SAME TORT MIGHT HAVE BEEN
COMMITTED BY A VARIETY OF MEANS IN NO WAY OFFENSIVE TO THE FEDERAL
ACT.  LABURNUM SIMPLY HOLDS THAT A TORTFEASOR SHOULD NOT BE ALLOWED TO
IMMUNIZE HIMSELF FROM LIABILITY FOR A WRONG HAVING NO RELATION TO
FEDERAL LAW SIMPLY BECAUSE THE MEANS HE ADOPTS TO EFFECT THE WRONG
TRANSGRESS A COMPREHENSIVE CODE OF FEDERAL REGULATION.  THE
AVAILABILITY OF STATE-COURT DAMAGE RELIEF MAY DISCOURAGE THE EMPLOYER
FROM INVOKING THE REMEDIES OF THE FEDERAL ACT ON BEHALF OF HIS
EMPLOYEES.  (FN15)  BUT THAT EFFECT MAY BE TOLERATED SINCE THE
EMPLOYER'S INTEREST IS AT MOST DERIVATIVE, AND THERE WILL BE NOTHING TO
DISSUADE THE EMPLOYEES, WHO ARE MORE DIRECTLY CONCERNED, FROM USING THE
FEDERAL MACHINERY TO CORRECT THE INTERFERENCE WITH THEIR PROTECTED
ACTIVITY. 

SECOND, THE DEFENDANT IN THIS CASE IS THE CERTIFIED BARGAINING AGENT
OF EMPLOYEES AT THE PLANT WHERE PLAINTIFF IS EMPLOYED, AND THE WRONG
INVOLVED WAS COMMITTED IN THE COURSE OF PICKETING INCIDENT TO AN
ECONOMIC STRIKE TO ENFORCE WAGE DEMANDS.  THUS, THE CONTROVERSY GROWS
OUT OF WHAT MIGHT BE CALLED AN ORDINARY LABOR DISPUTE.  CONTINUED
RELATIONS MAY BE EXPECTED BETWEEN THE PARTIES TO THIS LITIGATION.  THE
DEFENDANT IN LABURNUM, ON THE OTHER HAND, WAS A TOTAL STRANGER TO THE
EMPLOYER'S COLLECTIVE BARGAINING CONTRACT, AND COULD CLAIM THE
MEMBERSHIP OF NOT A SINGLE WORKER.  THERE WAS NO PROSPECT OF A
CONTINUING RELATIONSHIP BETWEEN THE PARTIES TO THE SUIT, AND NO NEED
FOR CONCERN OVER THE CLIMATE OF LABOR RELATIONS THAT AN ACTION MIGHT
IMPAIR.  THE DEFENDANT WAS ATTEMPTING TO COERCE LABURNUM'S EMPLOYEES,
EITHER BY DIRECT THREATS OR EMPLOYER PRESSURES, TO JOIN ITS RANKS. 
SUCH PREDATORY FORAYS ARE DISFAVORED WHEN UNDERTAKEN BY PEACEFUL
PICKETING, AND EVEN MORE SO WHEN UNIONS ENGAGE IN THE CRUDE VIOLENCE
USED IN LABURNUM. 

FINALLY, THE EFFECT OF PUNITIVE DAMAGES IN CASES SUCH AS THE PRESENT
ONE IS ENTIRELY DIFFERENT FROM THAT WHICH RESULTS FROM THE RECOVERY
SANCTIONED IN LABURNUM.  SINCE THE WRONG IN LABURNUM WAS COMMITTED
AGAINST AN EMPLOYER, THE DAMAGES EXACTED THERE WERE PROBABLY THE EXTENT
OF THE DEFENDANT'S LIABILITY FOR THAT PARTICULAR CONDUCT.  WHERE IT IS
EMPLOYEES WHO HAVE BEEN WRONGED, HOWEVER, THERE MAY BE DOZENS OF
ACTIONS FOR THE SAME CONDUCT, EACH WITH ITS OWN DEMAND FOR PUNITIVE
DAMAGES.  IN THE INSTANT CASE, FOR EXAMPLE, RUSSELL IS ONLY ONE OF
THIRTY EMPLOYEES WHO HAVE FILED SUITS AGAINST THE UNION FOR THE SAME
CONDUCT, ALL OF THEM CLAIMING SUBSTANTIAL PUNITIVE DAMAGES.  (FN16)
WHATEVER THE LAW IN OTHER STATES, ALABAMA SEEMS TO HOLD TO THE VIEW
THAT EVIDENCE OF A PREVIOUS PUNITIVE RECOVERY IS INADMISSIBLE AS A
DEFENSE IN A SUBSEQUENT ACTION CLAIMING PUNITIVE DAMAGES FOR THE SAME
CONDUCT.  (FN17)  THUS, THE DEFENDANT UNION MAY BE HELD FOR A WHOLE
SERIES OF PUNITIVE AS WELL AS COMPENSATORY RECOVERIES.  THE DAMAGES
CLAIMED IN THE PENDING ACTIONS TOTAL $1,500,000, AND TO THE PROSPECT OF
LIABILITY FOR A FRACTION OF THAT AMOUNT MAY BE ADDED THE CERTAINTY OF
LARGE LEGAL EXPENSES ENTAILED IN DEFENDING THE SUITS.  BY REASON OF
VICARIOUS LIABILITY FOR ITS MEMBERS' ILL-ADVISED CONDUCT ON THE PICKET
LINES, THE UNION IS TO BE SUBJECTED TO A SERIES OF JUDGMENTS THAT MAY
AND PROBABLY WILL REDUCE IT TO BANKRUPTCY, OR AT THE VERY LEAST DEPRIVE
IT OF THE MEANS NECESSARY TO PERFORM ITS ROLE AS BARGAINING AGENT OF
THE EMPLOYEES IT REPRESENTS.  TO APPROVE THAT RISK IS TO EXACT A RESULT
LABURNUM DOES NOT REQUIRE. 

FROM THE FOREGOING I CONCLUDE THAT THE LABURNUM CASE, TO WHICH THE
MAJORITY ATTRIBUTES SUCH EXTRAVAGANT PROPORTIONS, IS NOT CONTROLING
HERE.  IN MY JUDGMENT, THE EFFECT OF ALLOWING THE STATE COURTS TO AWARD
COMPENSATION AND FIX PENALTIES FOR THIS AND SIMILAR CONDUCT WILL UPSET
THE PATTERN OF RIGHTS AND REMEDIES ESTABLISHED BY CONGRESS AND WILL
FRUSTRATE THE VERY POLICIES THE FEDERAL ACT SEEKS TO IMPLEMENT.  THE
PROSPECT OF THAT RESULT IMPELS ME TO DISSENT. 

FN1  93 CONG. REC. 4024. 

FN2  S. REP. NO. 105 ON S. 1126, SUPP. VIEWS, 80TH CONG., 1ST SESS.
50. 

FN3  93 CONG. REC. 4019. 

FN4  93 CONG. REC. 4432. 

FN5  E.G., 93 CONG. REC. 4024. 

FN6  93 CONG. REC. 4437. 

FN7  SEE HALL V. WALTERS, 226 S.C. 430, 85 S.E.2D 729, CERT. DENIED,
349 U.S. 953; MCDANIEL V. TEXTILE WORKERS, 36 TENN. APP. 236, 254
S.W.2D 1. 

FN8  LOUISIANA, MASSACHUSETTS, NEBRASKA, AND WASHINGTON ALLOW NO SUCH
RECOVERY.  INDIANA FORBIDS IT WHEN THE CONDUCT IS ALSO PUNISHABLE
CRIMINALLY.  CONNECTICUT LIMITS THE RECOVERY TO THE EXPENSES OF
LITIGATION.  MCCORMICK, DAMAGES, SEC. 78.  NOTE, 70 HARV. L. REV. 517. 

FN9  SOME STATES REGARD THE DAMAGES AS EXTRA COMPENSATION FOR INJURED
FEELINGS.  IN MOST JURISDICTIONS THE RECOVERY IS CALCULATED TO PUNISH
AND DETER RATHER THAN COMPENSATE, THOUGH SOME STATES PERMIT THE JURY TO
CONSIDER THE PLAINTIFF'S COST OF LITIGATION.  IN MOST STATE COURTS A
PRINCIPAL MUST ANSWER IF THE WRONGFUL CONDUCT WAS WITHIN THE GENERAL
SCOPE OF THE AGENT'S AUTHORITY.   THIS LIST OF DIFFERENCES IS NOT
EXHAUSTIVE.  MCCORMICK, SECS. 78-85.  NOTE, 70 HARV. L. REV. 517. 

FN10  PLAINTIFF'S WAGES WERE APPROXIMATELY $100 PER WEEK AND HE WAS
OUT OF WORK FIVE WEEKS.  THEREFORE, ABOUT $9,500 OF HIS $10,000 VERDICT
REPRESENTS PUNITIVE DAMAGES AND DAMAGES FOR "MENTAL PAIN AND ANGUISH." 

FN11  REPUBLIC STEEL CORP. V. N.L.R.B., 311 U.S. 7, IS NOT AUTHORITY
FOR THE MAJORITY'S HOLDING ON PUNITIVE DAMAGES.  THAT CASE HELD THAT
THE BOARD OVERSTEPPED THE REMEDIAL AUTHORITY CONFERRED BY SEC. 10(C) OF
THE WAGNER ACT WEHN IT REQUIRED AN EMPLOYER TO REIMBURSE THE WORK
PROJECTS ADMINISTRATION FOR WAGES PAID WRONGFULLY DISCHARGED EMPLOYEES
SUBSEQUENTLY EMPLOYED ON WPA PROJECTS.   THE COURT SAID THIS PAYMENT
WAS IN THE NATURE OF A PENALTY AND CONCLUDED THAT THE ACT CONFERRED NO
AUTHORITY ON THE BOARD TO EXACT SUCH A PENALTY.  THERE WAS NO QUESTION
OF PRE-EMPTION AND NO DISCUSSION DIRECTED AT WHETHER AN AWARD OF
PUNITIVE DAMAGES BY A STATE WOULD BE CONSISTENT WITH THE FEDERAL ACT. 

FN12  29 U.S.C. SECS. 141, 151. 

FN13  R. 632. 

FN14  194 VA. 872, 75 S.E.2D 694. 

FN15  IT IS CLEAR THAT THE EMPLOYER IN LABURNUM COULD HAVE INVOKED
THE INVESTIGATIVE AND PREVENTIVE MACHINERY OF THE BOARD.  AN UNFAIR
LABOR PRACTICE CHARGE MAY BE FILED BY "ANY PERSON."  29 CFR, 1955 CUM.
SUPP., SEC. 102.9.  LOCAL UNION NO. 25 V. NEW YORK, NEW HAVEN & H.R.
CO., 350 U.S. 155, 160. 

FN16  PETITIONER HAS SUPPLIED THE COURT WITH THE FOLLOWING LIST OF
THOSE CASES.  ALL ARE HELD IN ABEYANCE PENDING DECISION OF THE INSTANT
CASE.  UNLESS OTHERWISE NOTED EACH ACTION IS IN THE CIRCUIT COURT OF
MORGAN COUNTY, ALABAMA.  THE AMOUNT SHOWN IS THE TOTAL DAMAGES ASKED,
WHICH IS COMPOSED OF A RELATIVELY INSUBSTANTIAL LOSS-OF-WAGES CLAIM AND
A BALANCE OF PUNITIVE DAMAGES.  PETITIONERS' APPENDICES, PP. 7A-9A. 

1.  BURL MCLEMORE V. UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, AFL-CIO, ET AL., #6150, $50,000.  VERDICT
AND JUDGMENT OF $8,000.  NEW TRIAL GRANTED BECAUSE OF IMPROPER ARGUMENT
OF PLAINTIFF'S COUNSEL.  264 ALA. 538, 88 SO. 2D 170. 

2.  JAMES W. THOMPSON V. SAME, #6151, $50,000.  APPEAL FROM $10,000
VERDICT AND JUDGMENT PENDING IN SUPREME COURT OF ALABAMA. 

3.  N.A. PALMER V. SAME, #6152, $50,000.  APPEAL FROM $18,450 VERDICT
AND JUDGMENT PENDING IN SUPREME COURT OF ALABAMA. 

4.  LLOYD E. MCABEE V. SAME, #6153, $50,000. 

5.  TOMMIE F. BREEDING V. SAME, #6154, $50,000. 

6.  DAVID G. PUCKETT V. SAME, #6155, $50,000. 

7.  COMER T. JUNKINS V. SAME, #6156, $50,000. 

8.  JOSEPH E. RICHARDSON V. SAME, #6157, $50,000. 

9.  COIS E. WOODARD V. SAME, #6158, $50,000. 

10.  MILLARD E. GREEN V. SAME, #6159, $50,000. 

11.  JAMES C. HUGHES V. SAME, #6160, $50,000. 

12.  JAMES C. DILLEHAY V. SAME, #6161, $50,000. 

13.  JAMES T. KIRBY V. SAME, #6162, $50,000. 

14.  CLOYCE FROST V. SAME, #6163, $50,000. 

15.  E.L. THOMPSON, JR. V. SAME, #6164, $50,000. 

16.  J.A. GLASSCOCK, JR. V. SAME, #6165, $50,000. 

17.  HOYT T. PENN V. SAME, #6166, $50,000. 

18.  SPENCER WEINMAN V. SAME, #6167, $50,000. 

19.  JOSEPH J. HIGHTOWER V. SAME, #6168, $50,000. 

20.  A.A. KILPATRICK V. SAME, #6169, $50,000. 

21.  CHARLES E. KIRK V. SAME, #6170, $50,000. 

22.  RICHARD W. PENN V. SAME, #6171, $50,000 

23.  ROBERT C. RUSSELL V. SAME, #6172, $50,000. 

24.  T.H. ABERCROMBIE V. SAME, #6173, $50,000. 

25.  JAMES H. TANNER V. SAME, #6174, $50,000. 

26.  CHARLES E. CARROLL V. SAME, #6175, $50,000. 

27.  ORDELL T. GARVEY V. SAME, #6176, $50,000. 

28.  A.R. BARRAN V. SAME, #6177, $50,000. 

29.  RUSSELL L. WOODARD V. SAME, #6178, $50,000. 

FN17  ALABAMA POWER CO. V. GOODWIN, 210 ALA. 657, 99 SO. 158.  THAT
WAS AN ACTION BY A PASSENGER AGAINST A STREETCAR COMPANY FOR INJURIES
SUSTAINED IN A COLLISION.  AS A DEFENSE TO A COUNT FOR PUNITIVE
DAMAGES, THE DEFENDANT SOUGHT TO SHOW THAT PUNITIVE DAMAGES HAD ALREADY
BEEN AWARDED AGAINST IT IN ANOTHER SUIT GROWING OUT OF THE SAME
COLLISION.  THE COURT HELD THAT THE EVIDENCE WAS PROPERLY EXCLUDED, FOR
"IN ITS CIVIL ASPECTS THE SINGLE ACT OR OMISSION FORMS AS MANY DISTINCT
AND UNRELATED WRONGS AS THERE ARE INDIVUDUALS INJURED BY IT."  210
ALA., AT 658-659, 99 SO., AT 160.  WHILE CONCEDING THE LOGICAL
RELEVANCY OF A PREVIOUS RECOVERY, THE COURT FELT THAT THE RULE OF
EXCLUSION WAS THE BETTER RULE SINCE IT WOULD PREVENT THE INTRODUCTION
OF SUCH COLLATERAL ISSUES AS WHETHER AND TO WHAT EXTENT PUNITIVE
DAMAGES HAD BEEN INCLUDED IN A PREVIOUS VERDICT.  THIS RULE OF
EXCLUSION WAS APPLIED IN SOUTHERN R. CO. V. SHERRILL, 232 ALA. 184, 167
SO. 731.  CF. MCCORMICK, DAMAGES, SEC. 82, AND 2 SUTHERLAND, DAMAGES
(4TH ED. 1916), SEC. 402, DISCUSSING THE MAJORITY RULE THAT EVIDENCE OF
PRIOR CRIMINAL PUNISHMENT IS INADMISSIBLE IN AN ACTION FOR PUNITIVE
DAMAGES FOR THE SAME MISFEASANCE. 
..END :














NOWAK V. UNITED STATES 356 U.S. 660 


NO. 72.  ARGUED JANUARY 28, 1958.  - DECIDED MAY 26, 1958.  - 238 F.2D
282, REVERSED AND CAUSE REMANDED. 


PETITIONER WAS BROUGHT TO THE UNITED STATES FROM POLAND IN 1913 AT THE
AGE OF 10 YEARS AND WAS ADMITTED TO CITIZENSHIP IN 1938.  IN 1952, THE
GOVERNMENT SUED UNDER SEC. 338(A) OF THE NATIONALITY ACT OF 1940 TO SET
ASIDE THE NATURALIZATION DECREE ON THE GROUND THAT IT HAD BEEN OBTAINED
FRAUDULENTLY AND ILLEGALLY.  THE DISTRICT COURT GRANTED THE RELIEF
SOUGHT, AND THE COURT OF APPEALS AFFIRMED.  HELD:  THE JUDGMENT IS
REVERSED, BECAUSE THE GOVERNMENT HAS FAILED TO PROVE ITS CHARGES BY THE
"CLEAR, UNEQUIVOCAL, AND CONVINCING EVIDENCE" WHICH IS REQUIRED IN
DENATURALIZATION CASES.  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118. 
PP.  661-668. 

1.  AN AFFIDAVIT SHOWING "GOOD CAUSE," FILED WITH THE COMPLAINT BY A
RESPONSIBLE OFFICIAL OF THE IMMIGRATION AND NATURALIZATION SERVICE, WHO
SWORE THAT THE ALLEGATIONS WERE BASED UPON FACTS DISCLOSED BY OFFICIAL
RECORDS OF THE SERVICE TO WHICH HE HAD HAD ACCESS, SATISFIED THE
PURPOSE OF SEC. 338(A) TO PROTECT THOSE PROCEEDED AGAINST FROM ILL
CONSIDERED ACTION.  P. 662. 

2.  THE FINDING OF FRAUDULENT PROCUREMENT OF CITIZENSHIP, BASED ON
PETITIONER'S ANSWERS TO A QUESTION IN A PRELIMINARY NATURALIZATION FORM
FILED IN 1937, COULD NOT BE SUSTAINED.  THE GOVERNMENT CLAIMED THAT THE
QUESTION REQUIRED PETITIONER TO DISCLOSE THAT HE WAS A MEMBER OF THE
COMMUNIST PARTY; BUT THE QUESTION WAS SO AMBIGUOUS THAT IT MAY HAVE
BEEN UNDERSTOOD BY HIM AS RELATING SOLELY TO MEMBERSHIP IN ANARCHISTIC
ORGANIZATIONS.  PP. 663-665. 

3.  THOUGH THE GOVERNMENT PROVED THAT PETITIONER WAS A MEMBER OF THE
COMMUNIST PARTY FOR FIVE YEARS PRECEDING HIS NATURALIZATION, IT FAILED
TO PROVE SUFFICIENTLY THAT HE WAS NOT "ATTACHED TO THE PRINCIPLES OF
THE CONSTITUTION," BECAUSE IT DID NOT PROVE BY "CLEAR, UNEQUIVOCAL, AND
CONVINCING" EVIDENCE THAT HE KNEW THAT THE PARTY ADVOCATED THE VIOLENT
OVERTHROW OF THE GOVERNMENT.  PP. 665-668. 

NOWAK V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN 1913, AT THE AGE OF 10 YEARS, PETITIONER WAS BROUGHT TO THE UNITED
STATES AS AN IMMIGRANT FROM POLAND.  IN JUNE 1938 THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ENTERED ITS ORDER
ADMITTING HIM TO CITIZENSHIP.  MORE THAN 14 YEARS LATER, IN DECEMBER
1952, THE UNITED STATES BROUGHT THIS SUIT UNDER SEC. 338(A) OF THE
NATIONALITY ACT OF 1940 (FN1) TO SET ASIDE THE NATURALIZATION DECREE,
ALLEGING THAT NOWAK HAD OBTAINED HIS CITIZENSHIP BOTH FRAUDULENTLY AND
ILLEGALLY.  THE GOVERNMENT FILED WITH ITS COMPLAINT AN "AFFIDAVIT
SHOWING GOOD CAUSE," AS REQUIRED BY SEC. 338(A).  AFTER A TRIAL THE
DISTRICT COURT GRANTED THE RELIEF REQUESTED BY THE UNITED STATES ON THE
GROUNDS THAT NOWAK (1) FRAUDULENTLY OBTAINED CITIZENSHIP BY MAKING A
FALSE ANSWER TO A QUESTION IN HIS PRELIMINARY FORM FOR PETITION FOR
NATURALIZATION, FILED IN JULY 1937; AND (2) ILLEGALLY OBTAINED
CITIZENSHIP, IN THAT FOR A PERIOD OF FIVE YEARS PRECEDING HIS
NATURALIZATION HE HAD NOT BEEN "ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION OF THE UNITED STATES  ...  ,"  AS REQUIRED BY SEC. 4 OF
THE NATIONALITY ACT OF 1906, (FN2) UNDER WHICH HE WAS NATURALIZED.  133
F. SUPP. 191.  THE COURT OF APPEALS AFFIRMED, 238 F.2D 282, AND WE
GRANTED CERTIORARI.  353 U.S. 922.  FOR REASONS GIVEN HEREAFTER WE
DECIDE THAT THE JUDGMENT BELOW MUST BE REVERSED. 

1.  "GOOD CAUSE" AFFIDAVIT.  - PETITIONER, RELYING ON UNITED STATES
V. ZUCCA, 351 U.S. 91, CONTENDS THAT THE DISTRICT COURT LACKED
JURISDICITON OVER THIS PROCEEDING BECAUSE THE GOVERNMENT'S AFFIDAVIT OF
"GOOD CAUSE" WAS DEFECTIVE, IN THAT IT WAS NOT MADE BY ONE HAVING
PERSONAL KNOWLEDGE OF THE MATTERS CONTAINED THEREIN.  THIS CONTENTION
MUST BE REJECTED.  THE AFFIANT WAS AN ATTORNEY OF THE IMMIGRATION AND
NATURALIZATION SERVICE WHO SWORE THAT THE ALLEGATIONS MADE IN HIS
AFFIDAVIT WERE BASED UPON FACTS DISCLOSED BY OFFICIAL RECORDS OF THE
NATURALIZATION SERVICE TO WHICH HE HAD HAD ACCESS.  IN SUBSTANCE THE
AFFIDAVIT SET FORTH THE SAME MATTERS UPON WHICH THE DISTRICT COURT'S
LATER DECREE OF DENATURALIZATION WAS BASED, AND SHOWED WITH ADEQUATE
PARTICULARITY THE GROUNDS ON WHICH THE GOVERNMENT'S SUIT RESTED.  SWORN
TO AS IT WAS BY A RESPONSIBLE OFFICIAL OF THE NATURALIZATION SERVICE,
WE CONSIDER THAT THE AFFIDAVIT SATISFIED THE PURPOSE OF SEC.  338(A) TO
PROTECT THOSE PROCEEDED AGAINST FROM ILL-CONSIDERED ACTION.  SEE UNITED
STATES V. ZUCCA, SUPRA, AT 99-100. 

2.  FRAUDULENT PROCUREMENT.  - THE FINDING OF FRAUD HERE WAS BASED ON
NOWAK'S ANSWER TO QUESTION 28 IN THE ABOVE-MENTIONED PRELIMINARY
NATURALIZATION FORM, WHICH READ: 

"28.  ARE YOU A BELIEVER IN ANARCHY?  ...  DO YOU BELONG TO OR ARE
YOU ASSOCIATED WITH ANY ORGANIZATION WHICH TEACHES OR ADVOCATES ANARCHY
OR THE OVERTHROW OF EXISTING GOVERNMENT IN THIS COUNTRY?  ...  " 

NOWAK PLACED "NO" AFTER EACH PART OF THE QUESTION.  THE COURTS BELOW
RULED THAT HE SHOULD HAVE ANSWERED "YES" TO THE SECOND PART BECAUSE IN
1937, WHEN THE FORM WAS EXECUTED, (1) NOWAK WAS A MEMBER OF THE
COMMUNIST PARTY; (2) THE PARTY TAUGHT "THE OVERTHROW OF EXISTING
GOVERNMENT"; AND (3) NOWAK WAS AWARE OF THIS PARTY TEACHING. 
ACCORDINGLY THE CHARGE OF FRAUDULENT PROCUREMENT WAS SUSTAINED. 

WHERE CITIZENSHIP IS AT STAKE THE GOVERNMENT CARRIES THE HEAVY BURDEN
OF PROVING ITS CASE BY " 'CLEAR, UNEQUIVOCAL, AND CONVINCING' EVIDENCE
WHICH DOES NOT LEAVE 'THE ISSUE IN DOUBT'  ...  ."  SCHNEIDERMAN V.
UNITED STATES, 320 U.S. 118, 158.  "ESPECIALLY IS THIS SO WHEN THE
ATTACK IS MADE LONG AFTER THE TIME WHEN THE CERTIFICATE OF CITIZENSHIP
WAS GRANTED AND THE CITIZEN HAS MEANWHILE MET HIS OBLIGATIONS AND HAS
COMMITTED NO ACT OF LAWLESSNESS."  ID., AT 122-123.  SEE ALSO
BAUMGARTNER V. UNITED STATES, 322 U.S. 665, 675.  AND IN A CASE SUCH AS
THIS IT BECOMES OUR DUTY TO SCRUTINIZE THE RECORD WITH THE UTMOST
CARE.  CF. DENNIS V. UNITED STATES, 341 U.S. 494, 516; YATES V. UNITED
STATES, 354 U.S. 298, 328. 

APLYING THE STRICT STANDARD REQUIRED OF THE GOVERNMENT BY
SCHNEIDERMAN, WE RULE THAT THE CHARGE OF FRAUD WAS NOT PROVED:  FIRST,
QUESTION 28 ON ITS FACE WAS NOT SUFFICIENTLY CLEAR TO WARRANT THE FIRM
CONCLUSION THAT WHEN NOWAK ANSWERED IT IN 1937 HE SHOULD HAVE KNOWN
THAT IT CALLED FOR DISCLOSURE OF MEMBERSHIP IN NONANARCHISTIC
ORGANIZATIONS ADVOCATING VIOLENT OVERTHROW OF GOVERNMENT AND, MORE
PARTICULARLY, MEMBERSHIP IN THE COMMUNIST PARTY; SECOND, EVEN IF THE
QUESTION SHOULD HAVE BEEN TAKEN AS CALLING FOR DISCLOSURE OF MEMBERSHIP
IN SUCH ORGANIZATIONS, AS THE GOVERNMENT CLAIMS, THE EVIDENCE, AS WE
DECIDE BELOW IN CONNECTION WITH THE CHARGE OF ILLEGAL PROCUREMENT, WAS
INSUFFICIENT TO ESTABLISH THAT NOWAK KNEW THAT THE COMMUNIST PARTY
ENGAGED IN SUCH ILLEGAL ADVOCACY.  WE DEAL WITH THE FIRST OF THESE
GROUNDS HERE. 

NO CLAIM IS MADE THAT NOWAK'S ANSWER TO THE FIRST PART OF QUESTION 28
WAS UNTRUTHFUL.  THE ISSUE IS WHETHER, AS NOWAK CLAIMS, THE SECOND PART
OF THE QUESTION COULD REASONABLY HAVE BEEN READ BY HIM AS INQUIRING
SOLELY ABOUT MEMBERSHIP IN AN ANARCHISTIC ORGANIZATION, OR WHETHER, AS
THE GOVERNMENT CONTENDS, IT UNAMBIGUOUSLY CALLED FOR DISCLOSURE OF
MEMBERSHIP IN AN ORGANIZATION WHICH ADVOCATES EITHER ANARCHY OR
OVERTHROW OF EXISTING GOVERNMENT. 

WE THINK THAT NOWAK COULD REASONABLY HAVE INTERPRETED QUESTION 28 AS
A TWO-PRONGED INQUIRY RELATING SIMPLY TO ANARCHY.  ITS FIRST PART
REFERS SOLELY TO ANARCHY.  ITS SECOND PART, WHICH IS IN DIRECT SERIES
WITH THE FIRST, BEGINS WITH "ANARCHY," AND THEN REFERS TO "OVERTHROW." 
IT IS TRUE THAT THE TWO TERMS ARE USED IN THE DISJUNCTIVE, BUT, HAVING
REGARD TO THE MAXIM EJUSDEM GENERIS, WE DO NOT THINK THAT THE
GOVERNMENT'S BURDEN CAN BE SATISFIED SIMPLY BY PARSING THE SECOND
SENTENCE OF THE QUESTION ACCORDING TO STRICT RULES OF SYNTAX.  FOR THE
TWO REFERENCES TO "ANARCHY" MAKE IT NOT IMPLAUSIBLE TO READ THE
QUESTION IN ITS TOTALITY AS INQUIRING SOLELY ABOUT ANARCHY.  ESPECIALLY
IS THIS SO WHEN IT IS BORNE IN MIND THAT NOWAK ANSWERED THE QUESTION IN
1937, DURING A PERIOD WHEN COMMUNISM WAS MUCH LESS IN THE PUBLIC
CONSCIOUSNESS THAN HAS BEEN THE CASE IN MORE RECENT YEARS, AND WHEN,
ACCORDINGLY, THERE WAS LESS REASON FOR INDIVIDUALS TO BELIEVE THAT
GOVERNMENT QUESTIONNAIRES WERE SEEKING INFORMATION RELATING TO
COMMUNIST PARTY MEMBERSHIP.  (FN3)  THE FACT THAT THE NATIONALITY ACT
OF 1906, UNDER WHICH THIS PRELIMINARY NATURALIZATION FORM WAS ISSUED,
PROHIBITED ANARCHISTS, BUT NOT COMMUNISTS, FROM BECOMING AMERICAN
CITIZENS, SEE 34 STAT.  596, 597, 598, ACCENTUATES THE HIGHLY DOUBTFUL
MEANING OF THE QUESTION.  WE HOLD THE SECOND PART OF QUESTION 28 TOO
AMBIGUOUS TO SUSTAIN THE FRAUDULENT PROCUREMENT CHARGE BASED ON
PETITIONER'S ANSWER TO IT. 

3.  ILLEGAL PROCUREMENT.  - AS IN THE SCHNEIDERMAN CASE, THE
GOVERNMENT HERE UNDER TOOK TO PROVE THAT NOWAK, DURING THE FIVE YEARS
PRECEDING HIS NATURALIZATION, WAS NOT "ATTACHED" TO THE PRINCIPLES OF
THE CONSTITUTION BY SHOWING THAT HE HAD BEEN A MEMBER OF THE COMMUNIST
PARTY WITH KNOWLEDGE THAT THE PARTY ADVOCATED THE OVERTHROW OF THE
GOVERNMENT BY FORCE AND VIOLENCE.  WE BELIEVE THAT THE GOVERNMENT HAS
ADEQUATELY PROVED THAT NOWAK WAS A MEMBER OF THE PARTY DURING THE
PERTINENT FIVE-YEAR PERIOD.  BUT EVEN ASSUMING THAT THE EVIDENCE OF THE
ILLEGAL ADVOCACY OF THE PARTY WAS SUFFICIENT, SEE YATES V. UNITED
STATES, SUPRA, AT 319-322, AND THAT, DESPITE THE DOUBTS EXPRESSED IN
SCHNEIDERMAN V. UNITED STATES, SUPRA, AT 136, 154, LACK OF "ATTACHMENT"
COULD BE PROVED BY THIS METHOD, WE NEVERTHELESS HOLD THAT THE
GOVERNMENT CANNOT PREVAIL ON THIS RECORD.  FOR WE ARE OF THE OPINION
THAT IT HAS NOT BEEN ESTABLISHED THAT NOWAK KNEW OF THE PARTY'S ILLEGAL
ADVOCACY. 

THE FACT THAT NOWAK WAS AN ACTIVE MEMBER AND FUNCTIONARY IN THE PARTY
DOES NOT OF ITSELF SUFFICE TO ESTABLISH THIS VITAL LINK IN THE
GOVERNMENT'S CHAIN OF PROOF.  SEE GENERALLY SCHNEIDERMAN V. UNITED
STATES, SUPRA; CF. YATES V. UNITED STATES, SUPRA, AT 329-330.  NOR IS
THE GOVERNMENT'S BURDEN SATISFIED ON THE CRUCIAL ISSUE OF NOWAK'S
AWARENESS OF THE ILLEGAL ASPECTS OF THE PARTY'S PROGRAM BY THE EVIDENCE
OF HIS ATTENDANCE AT "CLOSED" PARTY MEETINGS, OR BY THE DISPUTED
EVIDENCE AS TO HIS ALLEGED CONCEALMENT OF PARTY MEMBERSHIP.  VIRTUALLY
THE ONLY TESTIMONY AT THE TRIAL BEARING DIRECTLY ON NOWAK'S STATE OF
MIND RELATED TO THREE STATEMENTS ATTRIBUTED TO HIM BY FORMER MEMBERS OF
THE COMMUNIST PARTY.  ONE TESTIFIED THAT AT THE MEETING AT WHICH NOWAK
JOINED THE PARTY IN 1935 HE STATED THAT IT WOULD BE NECESSARY TO
"DESTROY" CAPITALISM IN ORDER TO SET UP A WORKERS' GOVERNMENT.  A
SECOND TESTIFIED THAT ABOUT 1937 NOWAK STATED AT A PARTY MEETING THAT
THE PARTY COULD NOT RELY ENTIRELY ON THE BALLOT TO GAIN ITS OBJECTIVES,
"BUT THAT IT WOULD EVENTUALLY RESOLVE TO BULLETS."  AND A THIRD
TESTIFIED THAT IN THE SUMMER OF 1937, WHILE LECTURING AT A PARTY
SCHOOL, NOWAK SAID THAT IF THE PARTY COULD NOT GAIN CONTROL OF LABOR
UNIONS THROUGH ELECTIONS, "THEN IT MAY BE NECESSARY TO USE VIOLENCE TO
GET IT," AND THAT "THE GOAL OF ALL THIS ACTIVITY WAS TO EXTEND THE
SOVIET SYSTEM AROUND THE FACE OF THE EARTH." 

FOR A NUMBER OF REASONS WE CANNOT REGARD THESE FRAGMENTARY EPISODES
AS PROVIDING RELIABLE SUPPORT FOR THE GOVERNMENT'S CASE.  ON THEIR FACE
EACH OF THE STATEMENTS ATTRIBUTED TO NOWAK WAS EQUIVOCAL.  READ IN
CONTEXT, THEY CAN BE TAKEN AS MERELY THE EXPRESSION OF OPINIONS OR
PREDICTIONS ABOUT FUTURE EVENTS, RATHER THAN AS ADVOCACY OF VIOLENT
ACTION FOR THE OVERTHROW OF GOVERNMENT.  SEE SCHNEIDERMAN V. UNITED
STATES, SUPRA, AT 157--158; CF.  YATES V. UNITED STATES, SUPRA, AT 319
322.  THE RECORD REVEALS THAT IN TWO OF THESE INSTANCES NOWAK WAS NOT
EVEN ADDRESSING HIMSELF TO POLITICAL ACTION, BUT RATHER TO PARTY
ACTIVITY DESIGNED TO STRENGTHEN THE AMERICAN LABOR MOVEMENT, IN WHICH
HE WAS A UNION ORGANIZER.  AT NO POINT DOES THE RECORD SHOW THAT NOWAK
HIMSELF EVER ADVOCATED ACTION FOR VIOLENT OVERTHROW, OR THAT HE
UNDERSTOOD THAT THE PARTY ADVOCATED ACTION TO THAT END.  IN ADDITION,
THE RECORD LEAVES US WITH THE DISTINCT IMPRESSION THAT THE TESTIMONY AS
TO THESE EPISODES WAS ITSELF QUITE UNCERTAIN, GIVEN AS IT WAS FROM 17
TO 19 YEARS AFTER THE EVENT.  INDEED, SOME OF THE TESTIMONY WAS
ELICITED ONLY AFTER PERSISTENT PRODDING BY COUNSEL FOR THE GOVERNMENT. 
(FN4) 

UNDER THE STRICT STANDARD OF PROOF BY WHICH THIS CASE MUST BE JUDGED,
THE RECORD SHOWS AT BEST FROM THE GOVERNMENT'S STANDPOINT THAT NOWAK
WAS AN ACTIVE MEMBER AND FUNCTIONARY OF THE COMMUNIST PARTY.  BUT THIS
PROOF DOES NOT SUFFICE TO MAKE OUT THE GOVERNMENT'S CASE, FOR CONGRESS
IN THE NATIONALITY ACT OF 1940 DID NOT MAKE MEMBERSHIP OR HOLDING
OFFICE IN THE COMMUNIST PARTY A GROUND FOR LOSS OF CITIZENSHIP.  WE
CONCLUDE THAT THE GOVERNMENT HAS FAILED TO PROVE ITS CHARGES OF FRAUD
AND LACK OF "ATTACHMENT" AGAINST THIS PETITIONER BY THE "CLEAR,
UNEQUIVOCAL, AND CONVINCING" EVIDENCE WHICH IS REQUIRED IN
DENATURALIZATION CASES.  WE THEREFORE NEED NOT CONSIDER ANY OF THE
OTHER CONTENTIONS PRESSED BY PETITIONER. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISCRICT COURT FOR FURTHER PROCEEDINGS IN CONFIRMITY
WITH THIS OPINION.  REVERSED. 

FN1  54 STAT. 1137, 1158: 

"IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT ATTORNEYS FOR THE
RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD CAUSE THEREFOR, TO
INSTITUTE PROCEEDINGS  ...  FOR THE PURPOSE OF REVOKING AND SETTING
ASIDE THE ORDER ADMITTING SUCH PERSON TO CITIZENSHIP AND CANCELING THE
CERTIFICATE OF NATURALIZATION ON THE GROUND OF FRAUD OR ON THE GROUND
THAT SUCH ORDER AND CERTIFICATE OF NATURALIZATION WERE ILLEGALLY
PROCURED." 

FN2  PARAGRAPH 4 OF SEC. 4 OF THE ACT, 34 STAT. 596, 598, AS AMENDED,
8 U.S.C. (1934 ED.)  SEC.  382, PROVIDES THAT NO ALIEN MAY BE ADMITTED
TO CITIZENSHIP UNLESS IMMEDIATELY PRECEDING HIS APPLICATION HE HAS
RESIDED CONTINUOUSLY WITHIN THE UNITED STATES FOR AT LEAST FIVE YEARS
AND THAT DURING THIS PERIOD "HE HAS BEHAVED AS A PERSON OF GOOD MORAL
CHARACTER, ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED
STATES, AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE UNITED
STATES." 

FN3  NO EVIDENCE WAS INTRODUCED TENDING TO SHOW THAT NOWAK ACTUALLY
UNDERSTOOD QUESTION 28 AS CALLING FOR DISCLOSURE OF HIS MEMBERSHIP IN
THE COMMUNIST PARTY.  THE GOVERNMENT ARGUES THAT THE REQUISITE
UNDERSTANDING OF THE QUESTION SHOULD BE IMPUTED TO NOWAK, "AN IMPORTANT
FUNCTIONARY IN THE PARTY, AND AN INTELLIGENT MAN," BECAUSE OF THE FACT
THAT FOR SOME PERIOD PRIOR TO 1937 THE DEPORTATION AND EXCLUSION
STATUTES APPLIED TO ALIENS "WHO ARE ANARCHISTS; ALIENS WHO BELIEVE IN
OR ADVOCATE THE OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE
UNITED STATES OR OF ALL FORMS OF LAW."  ACT OF OCTOBER 16, 1918, 40
STAT. 1012.  THE GAP IN THE GOVERNMENT'S PROOF CANNOT BE FILLED IN SUCH
TENUOUS FASHION, ESPECIALLY IN VIEW OF THE CITIZENSHIP PROVISIONS OF
THE NATIONALITY ACT OF 1906 REFERRED TO IN THE TEXT.    FN4  THE
TESTIMONY OF WITNESS EAGER PROVIDES AN EXAMPLE OF THIS:  AFTER IT WAS
ESTABLISHED THAT IN 1937 EAGER WAS A MEMBER OF THE SAME COMMUNIST PARTY
CELL AS NOWAK, WHICH WAS COMPOSED OF MEMBERS OF THE UNITED AUTO
WORKERS, AND THAT THEY ATTENDED SEVERAL PARTY MEETINGS TOGETHER, EAGER
WAS ASKED WHAT NOWAK SAID AT THOSE MEETINGS.  EAGER'S REPLY WAS, "HE
GAVE AN OUTLINE OF WHAT PARTY MEMBERS SHOULD DO IN THE PLANT, AND THAT
WE WOULD HAVE TO BE A LITTLE MORE AGGRESSIVE IF WE EXPECTED TO GET
ANYWHERE AT THAT TIME  ...  .  AND HE SAID WE COULDN'T DEPEND ENTIRELY
ON BALLOTS IN THIS COUNTRY; IT WAS ONLY BY A MILITANT COMMUNIST
LEADERSHIP IN THE SHOPS, STORES AND FACTORIES AND MINES THAT WE COULD
EXPECT TO HAVE A SOVIET AMERICA."  (TRANSCRIPT, PP. 315-316.)  DURING
THE COURSE OF HIS DIRECT EXAMINATION EAGER WAS ASKED SEVERAL MORE TIMES
ABOUT STATEMENTS NOWAK MAY HAVE MADE RELATING TO COMMUNISM EITHER AT
PARTY MEETINGS OR IN PRIVATE CONVERSATION.  HIS ANSWERS WERE ALWAYS OF
TWO TYPES.  SOMETIMES HE SUBSTANTIALLY REPEATED HIS FIRST ACCOUNT; FOR
EXAMPLE, "NOWAK SAID THE PARTY POLICY WAS THAT MEMBERS OF THE PARTY IN
THE VARIOUS UNIONS SHOULD TAKE AN AGGRESSIVE AND MILITANT LEADERSHIP OF
THE UNION."  (TRANSCRIPT, P. 321.)  OR ELSE HE PLEADED THAT HE WAS NOT
ABLE TO REMEMBER WHAT NOWAK SAID; FOR EXAMPLE, "I CAN'T RECALL THE
EXACT WORDS HE SAID AT THAT MEETING, IT IS SO LONG AGO."  (TRANSCRIPT,
P. 322.)  AFTER DIRECT EXAMINATION ENDED, AND AFTER A LENGTHY CROSS
EXAMINATION, COUNSEL FOR THE GOVERNMENT RETURNED TO THE THEME ON
REDIRECT AND ASKED EAGER ABOUT ANY STATEMENTS OF NOWAK CONCERNING "THE
ROLE THAT THE COMMUNIST PARTY SHOULD PLAY IN THAT UNION."  EAGER
REPLIED, "ONLY TO THE EXTENT THAT HE STATED WE SHOULD BE MILITANT AND
AGGRESSIVE AND TAKE A LEADERSHIP IN OUR PLANTS."  (TRANSCRIPT, P.
375.)  A LITTLE LATER EAGER WAS ASKED SUBSTANTIALLY THE SAME QUESTION. 
AFTER OBJECTION BY NOWAK'S COUNSEL ON THE GROUND THAT THE MATTER HAD
BEEN GONE INTO "TEN TIMES ON DIRECT EXAMINATION," THE DISTRICT COURT
RECOGNIZED THAT THE QUESTION HAD PREVIOUSLY BEEN ASKED, BUT PERMITTED
THE WITNESS TO ANSWER.  EAGER SAID, "WELL, I THINK THAT I HAVE ANSWERED
THAT QUESTION FOUR OR FIVE TIMES."  WHEN ASKED AT THAT POINT IF HE
COULD ADD ANYTHING, EAGER ONLY THEN SUBMITTED THE ANSWER SO HEAVILY
RELIED ON BY THE GOVERNMENT HERE, "THE ONLY THING I CAN RECALL HIM
SAYING ONE NIGHT, AT A MEETING, THAT WAS SLIGHTLY DIFFERENT, I GUESS,
AND YET THE SAME QUESTION OF MILITANCY AND ALL THAT, AND THERE WAS
POLITICAL ACTION, THE QUESTION WAS BROUGHT UP AT THE MEETING AND HE
TOLD US AT THAT TIME THAT WE COULDN'T DEPEND TOO MUCH ON THE BALLOT TO
GAIN OUR OBJECTIVES BUT THAT IT WOULD EVENTUALLY RESOLVE TO BULLETS,
AND IT WAS ONLY BY THE SAME MILITANCY OF THE WORKERS IN THE PLANTS THAT
WE, AS LEADERS, WOULD BE ABLE TO ESTABLISH A SOVIET AMERICA." 
(TRANSCRIPT, P. 379.) 

MR. JUSTICE BURTON, MR. JUSTICE CLARK, AND MR. JUSTICE WHITTAKER,
DISSENTING.* 

*NOTE: THIS OPINION APPLIES ALSO TO NO. 76, MAISENBERG V. UNITED
STATES, POST, P. 670. 

WE JOIN THE COURT IN CONCLUDING THAT THE "GOOD CAUSE" AFFIDAVITS WERE
SUFFICIENT.  HOWEVER, UNDER THE CIRCUMSTANCES OF THESE CASES WE BELIEVE
THAT EACH PETITIONER FULLY UNDERSTOOD THE THRUST OF QUESTION 28 AS TO
ASSOCIATION WITH OR MEMBERSHIP IN ANY ORGANIZATION WHICH TEACHES OR
ADVOCATES THE OVERTHROW OF THE GOVERNMENT.  FURTHER, WE BELIEVE THAT
THE FACTS AMPLY SUPPORT THE CONCLUSION OF BOTH THE TRIAL COURT AND THE
COURT OF APPEALS THAT NEITHER PETITIONER "BEHAVED AS A PERSON ...
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES
...  ."  WE CANNOT JOIN IN OVERTURNING THESE FINDINGS OF TWO COURTS,
AND THEREFORE WOULD AFFIRM THE JUDGMENTS. 
..END :



















MAISENBERG V. UNITED STATES 356 U.S. 670 


NO. 76.  ARGUED JANUARY 28, 1958 - DECIDED MAY 26, 1958 - 238 F.2D 282,
REVERSED AND CAUSE REMANDED. 


PETITIONER WAS BROUGHT TO THE UNITED STATES IN 1912 AT THE AGE OF 11
AND WAS ADMITTED TO CITIZENSHIP IN 1938.  IN 1953, THE GOVERNMENT SUED
UNDER SEC. 340(A) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952 TO SET
ASIDE THE NATURALIZATION DECREE ON THE GROUND THAT IT HAD BEEN OBTAINED
BY "CONCEALMENT OF A MATERIAL FACT AND WILLFUL MISREPRESENTATION."  THE
DISTRICT COURT GRANTED THE RELIEF SOUGHT, AND THE COURT OF APPEALS
AFFIRMED.  HELD:  THE JUDGMENT IS REVERSED, BECAUSE THE GOVERNMENT HAS
FAILED TO PROVE ITS CHARGES BY THE "CLEAR, UNEQUIVOCAL, AND CONVINCING
EVIDENCE" WHICH IS REQUIRED IN DENATURALIZATION CASES.  SCHNEIDERMAN V.
UNITED STATES, 320 U.S. 118.   PP. 671-673. 

1.  THE GOVERNMENT'S TIMELY FILED AFFIDAVIT OF "GOOD CAUSE" WAS
SUFFICIENT.  NOWAK V. UNITED STATES, ANTE, P. 660.  P. 672. 

2. A FINDING OF MISREPRESENTATION CANNOT BE PREDICATED ON
PETITIONER'S ANSWER TO AN AMBIGUOUS QUESTION IN A PRELIMINARY
NATURALIZATION FORM.  NOWAK V. UNITED STATES, ANTE, P. 660.  P. 672. 

3.  THOUGH THE GOVERNMENT PROVED THAT PETITIONER WAS A MEMBER OF THE
COMMUNIST PARTY FOR FIVE YEARS PRECEDING HER NATURALIZATION, IT FAILED
TO PROVE SUFFICIENTLY THAT SHE WAS NOT "ATTACHED TO THE PRINCIPLES OF
THE CONSTITUTION," BECAUSE IT DID NOT PROVE BY "CLEAR, UNEQUIVOCAL, AND
CONVINCING EVIDENCE" THAT SHE KNEW THAT THE PARTY ADVOCATED THE VIOLENT
OVERTHROW OF THE GOVERNMENT.  PP. 672-673. 

MAISENBERG V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 72, NOWAK V. UNITED STATES, DECIDED
TODAY, ANTE, P. 660.  MAISENBERG WAS BROUGHT TO THIS COUNTRY FROM
RUSSIA IN 1912, AT THE AGE OF 11.  SHE WAS ADMITTED TO CITIZENSHIP IN
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
IN JANUARY 1938.  IN MARCH 1953, IN THE SAME COURT, THE UNITED STATES
BROUGHT THIS SUIT UNDER SEC. 340(A) OF THE IMMIGRATION AND NATIONALITY
ACT OF 1952 (FN1) TO SET ASIDE THE NATURALIZATION DECREE, ALLEGING IN
ITS COMPLAINT THAT MAISENBERG'S CITIZENSHIP WAS OBTAINED "BY
CONCEALMENT OF A MATERIAL FACT AND WILLFUL MISREPRESENTATION."  AFTER A
TRIAL THE DISTRICT COURT, IN AN UNREPORTED OPINION, GRANTED THE RELIEF
REQUESTED BY THE GOVERNMENT.  THE COURT OF APPEALS AFFIRMED, 238 F.2D
282, AND WE GRANTED CERTIORARI.  353 U.S. 922. 

ALTHOUGH THE FINDINGS OF THE DISTRICT COURT DO NOT CLEARLY DISCLOSE
THE GROUNDS FOR DECISION, MAISENBERG SEEMS TO HAVE BEEN DENATURALIZED
BECAUSE SHE WAS FOUND TO HAVE MADE MISREPRESENTATIONS IN (1) ANSWERING
FALSELY "NO" TO THE SECOND PART OF QUESTION 28 IN HER PRELIMINARY FORM
FOR PETITION FOR NATURALIZATION, FILED IN JUNE 1937; (FN2) AND (2)
STATING THAT FOR A PERIOD OF FIVE YEARS PRECEDING HER NATURALIZATION
SHE HAD BEEN "ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE
UNITED STATES  ...  ."  THE DISTRICT COURT ALSO SUSTAINED THE
SUFFICIENCY OF THE GOVERNMENT'S AFFIDAVIT OF "GOOD CAUSE," WHICH WAS
NOT SIGNED BY AN INDIVIDUAL HAVING PERSONAL KNOWLEDGE OF THE FACTS ON
WHICH THE PROCEEDINGS WERE BASED, BUT BY AN ATTORNEY OF THE IMMIGRATION
AND NATURALIZATION SERVICE WHO RELIED ON OFFICIAL RECORDS OF THE
SERVICE. 

FOR THE REASONS STATED IN NOWAK V. UNITED STATES, SUPRA, WE HOLD THAT
(1) THE GOVERNMENT'S TIMELY FILED AFFIDAVIT OF GOOD CAUSE WAS
SUFFICIENT; AND (2) A FINDING OF MISREPRESENTATION CANNOT BE PREDICATED
ON MAISENBERG'S NEGATIVE ANSWER TO THE SECOND PART OF QUESTION 28. 

WE ALSO ARE OF OPINION THAT THE GOVERNMENT HAS FAILED TO PROVE BY
"CLEAR, UNEQUIVOCAL, AND CONVINCING" EVIDENCE, SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118, 125, 158, THAT MAISENBERG WAS NOT "ATTACHED TO
THE PRINCIPLES OF THE CONSTITUTION."  (FN3)  AS IN NOWAK, THE
GOVERNMENT HAS ATTEMPTED TO PROVE ITS CASE INDIRECTLY BY SHOWING THAT
MAISENBERG WAS A MEMBER OF THE COMMUNIST PARTY DURING THE FIVE YEARS
PRECEDING HER NATURALIZATION AND THAT SHE KNEW THAT THE PARTY WAS
ILLEGALLY ADVOCATING THE VIOLENT OVERTHROW OF THE UNITED STATES.  WE
THINK THAT THE GOVERNMENT HAS ADEQUATELY PROVED THAT MAISENBERG WAS A
MEMBER OF THE PARTY DURING THE PERTINENT FIVE-YEAR PERIOD.  BUT, EVEN
MAKING THE SAME ASSUMPTIONS ON BEHALF OF THE GOVERNMENT THAT WERE MADE
IN NOWAK - THAT IT WAS ADEQUATELY SHOWN THAT THE PARTY IN 1938
ADVOCATED VIOLENT ACTION FOR THE OVERTHROW OF THE GOVERNMENT AND THAT
LACK OF "ATTACHMENT" COULD BE PROVED BY THIS METHOD - THE GOVERNMENT
STILL CANNOT PREVAIL.  FOR WE DO NOT BELIEVE THAT IT HAS CARRIED THE
BURDEN OF PROVING THAT MAISENBERG WAS AWARE OF THAT ALLEGED TENET OF
THE PARTY. 

APART FROM INTRODUCING EVIDENCE THAT MAISENBERG WAS AN ACTIVE MEMBER
AND FUNCTIONARY OF THE COMMUNIST PARTY, AND THAT SHE HAD ATTENDED
VARIOUS "CLOSED" PARTY MEETINGS, THE GOVERNMENT PRESENTED SEVERAL
WITNESSES WHO TESTIFIED TO A NUMBER OF SPORADIC STATEMENTS BY
MAISENBERG (OR BY OTHERS IN HER PRESENCE) BETWEEN 1930 AND 1937 WHICH
ARE CLAIMED TO SHOW THAT SHE WAS AWARE OF THE PURPOSE OF THE PARTY "TO
OVERTHROW THE GOVERNMENT BY FORCE" AND TO ESTABLISH "THE DICTATORSHIP
OF THE PROLETARIAT."  FOR MUCH THE SAME REASONS GIVEN IN NOWAK, WE
REGARD THIS EVIDENCE AS INADEQUATE TO ESTABLISH THE GOVERNMENT'S CASE. 
IN EACH OF THE SEVERAL EPISODES DESCRIBED BY THE WITNESSES THE
STATEMENTS ATTRIBUTED TO MAISENBERG CAN WELL BE TAKEN AS MERELY THE
EXPRESSION OF ABSTRACT PREDICTORY OPINIONS; ALL OF THEM WERE OF A
HIGHLY EQUIVOCAL NATURE; AND THE FALTERING CHARACTER OF MUCH OF THIS
TESTIMONY AS TO EVENTS OF MANY YEARS BEFORE CASTS THE GRAVEST DOUBT
UPON ITS RELIABILITY.  THERE IS NO EVIDENCE IN THE RECORD THAT
MAISENBERG HERSELF EVER ADVOCATED REVOLUTIONARY ACTION OR THAT SHE WAS
AWARE THAT THE PARTY PROPOSED TO TAKE SUCH ACTION.  CF. YATES V. UNITED
STATES, 354 U.S. 298, 319-322.  AS WE SAID IN NOWAK, SUCH PROOF FALLS
SHORT OF THE "CLEAR, UNEQUIVOCAL, AND CONVINCING" EVIDENCE NEEDED TO
SUPPORT A DECREE OF DENATURALIZATION.  ACCORDINGLY, THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  66 STAT. 260, 8 U.S.C. SEC. 1451(A): 

"IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT ATTORNEYS FOR THE
RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD CAUSE THEREFOR, TO
INSTITUTE PROCEEDINGS  ...  FOR THE PURPOSE OF REVOKING AND SETTING
ASIDE THE ORDER ADMITTING SUCH PERSON TO CITIZENSHIP AND CANCELING THE
CERTIFICATE OF NATURALIZATION ON THE GROUND THAT SUCH ORDER AND
CERTIFICATE OF NATURALIZATION WERE PROCURED BY CONCEALMENT OF A
MATERIAL FACT OR BY WILLFUL MISREPRESENTATION  ...  ." 

FN2  AS IN THE FORM COMPLETED BY NOWAK, QUESTION 28 READ: 

"28.  ARE YOU A BELIEVER IN ANARCHY?  ...  DO YOU BELONG TO OR ARE
YOU ASSOCIATED WITH ANY ORGANIZATION WHICH TEACHES OR ADVOCATES ANARCHY
OR THE OVERTHROW OF EXISTING GOVERNMENT IN THIS COUNTRY?  ...  ." 

FN3  IN VIEW OF OUR DECISION THAT, AS AN OBJECTIVE MATTER, PETITIONER
HAS NOT BEEN SHOWN TO HAVE LACKED ATTACHMENT TO THE PRINCIPLES OF THE
CONSTITUTION IN 1938, WE NEED NOT REACH THE FURTHER QUESTION UNDER THE
1952 ACT WHETHER THE GOVERNMENT HAS ADEQUATELY PROVED THAT PETITIONER
MISREPRESENTED HER ATTACHMENT OR CONCEALED A LACK OF ATTACHMENT.  SEE
NOTE 1, SUPRA. 

FOR DISSENTING OPINION OF MR. JUSTICE BURTON, MR. JUSTICE CLARK AND
MR. JUSTICE WHITTAKER, SEE ANTE, P. 669. 
..END :



ELLIS V. UNITED STATES 356 U.S. 674 


NO. 293, MISC.  DECIDED MAY 26, 1958.  - 101 U.S. APP. D.C. 386, 249
F.2D 478, JUDGMENT VACATED AND CAUSE REMANDED. 


THE COURT OF APPEALS DENIED PETITIONER LEAVE TO APPEAL IN FORMA
PAUPERIS FROM HIS CONVICTION FOR HOUSEBREAKING AND LARCENY.  THE
SOLICITOR GENERAL CONCEDES, AND AFTER EXAMINING THE RECORD THIS COURT
AGREES, THAT THE ISSUE PRESENTED - PROBABLE CAUSE TO ARREST - IS NOT
ONE THAT "CAN NECESSARILY BE CHARACTERIZED AS FRIVOLOUS."  HELD:  THE
JUDGMENT IS VACATED AND THE CAUSE IS REMANDED FOR RECONSIDERATION IN
THE LIGHT OF THIS OPINION.  PP. 674-675. 

ELLIS V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, AS IS LEAVE TO
PROCEED IN FORMA PAUPERIS. 

THE COURT OF APPEALS DENIED PETITIONER LEAVE TO APPEAL IN FORMA
PAUPERIS A CONVICTION FOR HOUSEBREAKING AND LARCENY.  101 U.S. APP.
D.C. 386, 249 F.2D 478.  THE SOLICITOR GENERAL CONCEDES THAT LEAVE TO
APPEAL SHOULD HAVE BEEN ALLOWED UNLESS PETITIONER'S CONTENTIONS ON THE
MERITS WERE FRIVOLOUS.  THE ONLY STATUTORY REQUIREMENT FOR THE
ALLOWANCE OF AN INDIGENT'S APPEAL IS THE APPLICANT'S "GOOD FAITH."  28
U.S.C. SEC. 1915.  IN THE ABSENCE OF SOME EVIDENT IMPROPER MOTIVE, THE
APPLICANT'S GOOD FAITH IS ESTABLISHED BY THE PRESENTATION OF ANY ISSUE
THAT IS NOT PLAINLY FRIVOLOUS.  FARLEY V. UNITED STATES, 354 U.S. 521. 
THE GOOD-FAITH TEST MUST NOT BE CONVERTED INTO A REQUIREMENT OF A
PRELIMINARY SHOWING OF ANY PARTICULAR DEGREE OF MERIT.  UNLESS THE
ISSUES RAISED ARE SO FRIVOLOUS THAT THE APPEAL WOULD BE DISMISSED IN
THE CASE OF A NONINDIGENT LITIGANT, FED. RULES CRIM. PROC. 39(A), THE
REQUEST OF AN INDIGENT FOR LEAVE TO APPEAL IN FORMA PAUPERIS MUST BE
ALLOWED. 

NORMALLY, ALLOWANCE OF AN APPEAL SHOULD NOT BE DENIED UNTIL AN
INDIGENT HAS HAD ADEQUATE REPRESENTATION BY COUNSEL.  JOHNSON V. UNITED
STATES, 352 U.S. 565.  IN THIS CASE, IT APPEARS THAT THE TWO ATTORNEYS
APPOINTED BY THE COURT OF APPEALS, PERFORMED ESSENTIALLY THE ROLE OF
AMICI CURIAE.   BUT REPRESENTATION IN THE ROLE OF AN ADVOCATE IS
REQUIRED.  IF COUNSEL IS CONVINCED, AFTER CONSCIENTIOUS INVESTIGATION,
THAT THE APPEAL IS FRIVOLOUS, OF COURSE, HE MAY ASK TO WITHDRAW ON THAT
ACCOUNT.  IF THE COURT IS SATISFIED THAT COUNSEL HAS DILIGENTLY
INVESTIGATED THE POSSIBLE GROUNDS OF APPEAL, AND AGREES WITH COUNSEL'S
EVALUATION OF THE CASE, THEN LEAVE TO WITHDRAW MAY BE ALLOWED AND LEAVE
TO APPEAL MAY BE DENIED.  IN THIS CASE, THE SOLICITOR GENERAL CONCEDES,
AND AFTER EXAMINING THE RECORD WE AGREE, THAT THE ISSUE PRESENTED -
PROBABLE CAUSE TO ARREST - IS NOT ONE THAT "CAN NECESSARILY BE
CHARACTERIZED AS FRIVOLOUS."  ACCORDINGLY, THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED, AND THE CASE IS REMANDED FOR RECONSIDERATION IN
LIGHT OF THIS OPINION. 
..END :


















AMLIN, DBA AMLIN CARTAGE V. VERBEEM, DBA PETERS CARTAGE 356 U.S. 676 


NO. 881.  DECIDED MAY 26, 1958 - 154 F. SUPP. 431, AFFIRMED. 


AMLIN ET AL., DOING BUSINESS AS AMLIN CARTAGE, ET AL. V. VERBEEM, DOING
BUSINESS AS PETERS CARTAGE, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :

















SHERMAN V. UNITED STATES 356 U.S. 369 


NO. 87.  ARGUED JANUARY 16, 1958 - DECIDED MAY 19, 1958 - 240 F.2D 949,
REVERSED AND CAUSE REMANDED. 


AT PETITIONER'S TRIAL IN A FEDERAL DISTRICT COURT FOR SELLING
NARCOTICS IN VIOLATION OF 21 U.S.C. SEC. 174, HE RELIED ON THE DEFENSE
OF ENTRAPMENT.  FROM THE UNDISPUTED TESTIMONY OF THE GOVERNMENT'S
WITNESSES, IT APPEARED THAT A GOVERNMENT INFORMER HAD MET PETITIONER AT
A DOCTOR'S OFFICE WHERE BOTH WERE BEING TREATED TO CURE NARCOTICS
ADDICTION, THE INFORMER ASKED PETITIONER TO HELP HIM TO OBTAIN
NARCOTICS FOR HIS OWN USE, PETITIONER SEEMED RELUCTANT TO DO SO, THE
INFORMER PERSISTED, AND FINALLY PETITIONER MADE SEVERAL SMALL PURCHASES
OF NARCOTICS AND LET THE INFORMER HAVE HALF OF EACH AMOUNT PURCHASED AT
COST PLUS EXPENSES.  BY PREARRANGEMENT, OTHER GOVERNMENT AGENTS THEN
OBTAINED EVIDENCE OF THREE SIMILAR SALES TO THE INFORMER, FOR WHICH
PETITIONER WAS INDICTED.  EXCEPT FOR A RECORD OF TWO CONVICTIONS NINE
AND FIVE YEARS PREVIOUSLY, THERE WAS NO EVIDENCE THAT PETITIONER
HIMSELF WAS IN THE TRADE OR THAT HE SHOWED A "READY COMPLAISANCE" TO
THE INFORMER'S REQUEST.  THE FACTUAL ISSUE WHETHER THE INFORMER HAD
PERSUADED THE OTHERWISE UNWILLING PETITIONER TO MAKE THE SALE OR
WHETHER PETITIONER WAS ALREADY PREDISPOSED TO DO SO AND EXHIBITED ONLY
THE NATURAL HESITANCY OF ONE ACQUAINTED WITH THE NARCOTICS TRADE WAS
SUBMITTED TO THE JURY, WHICH FOUND PETITIONER GUILTY.  HELD:  ON THE
RECORD IN THIS CASE, ENTRAPMENT WAS ESTABLISHED AS A MATTER OF LAW, AND
PETITIONER'S CONVICTION IS REVERSED.  PP. 370-378. 

(A)  ENTRAPMENT OCCURS ONLY WHEN THE CRIMINAL CONDUCT WAS "THE
PRODUCT OF THE CREATIVE ACTIVITY" OF LAW-ENFORCEMENT OFFICIALS.  P.
372. 

(B)  THE UNDISPUTED TESTIMONY OF THE GOVERNMENT'S WITNESSES
ESTABLISHED ENTRAPMENT AS A MATTER OF LAW.  P. 373. 

(C)  ALTHOUGH THE INFORMER WAS NOT BEING PAID, THE GOVERNMENT CANNOT
DISOWN HIM OR DISCLAIM RESPONSIBILITY FOR HIS ACTIONS, SINCE HE WAS AN
ACTIVE GOVERNMENT INFORMER WHO WAS HIMSELF AWAITING TRIAL ON NARCOTICS
CHARGES, FOR WHICH HE WAS LATER GIVEN A SUSPENDED SENTENCE.  PP. 373
374. 

(D)  IT MAKES NO DIFFERENCE THAT THE SALES FOR WHICH PETITIONER WAS
CONVICTED OCCURRED AFTER A SERIES OF SALES, SINCE THEY WERE NOT
INDEPENDENT ACTS SUBSEQUENT TO THE INDUCEMENT BUT WERE PART OF A COURSE
OF CONDUCT WHICH WAS THE PRODUCT OF THE INDUCEMENT.  P. 374. 

(E)  THE GOVERNMENT CANNOT MAKE SUCH USE OF AN INFORMER AND THEN
CLAIM DISASSOCIATION THROUGH IGNORANCE OF THE WAY IN WHICH HE
OPERATED.  PP. 374-375. 

(F)  THE EVIDENCE WAS INSUFFICIENT TO OVERCOME THE DEFENSE OF
ENTRAPMENT BY SHOWING THAT PETITIONER EVINCED A "READY COMPLAISANCE" TO
ACCEDE TO THE INFORMER'S REQUEST.  PP. 375-376. 

(G)  THIS COURT ADHERES TO THE DOCTRINE OF THE COURT'S OPINION IN
SORRELLS V. UNITED STATES, 287 U.S. 435, AND DECLINES TO REASSESS THE
DOCTRINE OF ENTRAPMENT ACCORDING TO THE PRINCIPLES ANNOUNCED IN THE
SEPARATE OPINION OF MR. JUSTICE ROBERTS IN THAT CASE, SUCH ISSUES NOT
HAVING BEEN RAISED BY THE PARTIES EITHER IN THIS COURT OR IN THE LOWER
COURTS.  PP. 376-378. 

SHERMAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE BEFORE US IS WHETHER PETITIONER'S CONVICTION SHOULD BE SET
ASIDE ON THE GROUND THAT AS A MATTER OF LAW THE DEFENSE OF ENTRAPMENT
WAS ESTABLISHED.  PETITIONER WAS CONVICTED UNDER AN INDICTMENT CHARGING
THREE SALES OF NARCOTICS IN VIOLATION OF 21 U.S.C. SEC. 174.  A
PREVIOUS CONVICTION HAD BEEN REVERSED ON ACCOUNT OF IMPROPER
INSTRUCTIONS AS TO THE ISSUE OF ENTRAPMENT.  200 F.2D 880.  IN THE
SECOND TRIAL, AS IN THE FIRST, PETITIONER'S DEFENSE WAS A CLAIM OF
ENTRAPMENT:  AN AGENT OF THE FEDERAL GOVERNMENT INDUCED HIM TO TAKE
PART IN ILLEGAL TRANSACTIONS WHEN OTHERWISE HE WOULD NOT HAVE DONE SO. 

IN LATE AUGUST 1951, KALCHINIAN, A GOVERNMENT INFORMER, FIRST MET
PETITIONER AT A DOCTOR'S OFFICE WHERE APPARENTLY BOTH WERE BEING
TREATED TO BE CURED OF NARCOTICS ADDICTION.  SEVERAL ACCIDENTAL
MEETINGS FOLLOWED, EITHER AT THE DOCTOR'S OFFICE OR AT THE PHARMACY
WHERE BOTH FILLED THEIR PRESCRIPTIONS FROM THE DOCTOR.  FROM MERE
GREETINGS, CONVERSATION PROGRESSED TO A DISCUSSION OF MUTUAL
EXPERIENCES AND PROBLEMS, INCLUDING THEIR ATTEMPTS TO OVERCOME
ADDICTION TO NARCOTICS.  FINALLY KALCHINIAN ASKED PETITIONER IF HE KNEW
OF A GOOD SOURCE OF NARCOTICS.  HE ASKED PETITIONER TO SUPPLY HIM WITH
A SOURCE BECAUSE HE WAS NOT RESPONDING TO TREATMENT.  FROM THE FIRST,
PETITIONER TRIED TO AVOID THE ISSUE.  NOT UNTIL AFTER A NUMBER OF
REPETITIONS OF THE REQUEST, PREDICATED ON KALCHINIAN'S PRESUMED
SUFFERING, DID PETITIONER FINALLY ACQUIESCE.  SEVERAL TIMES THEREAFTER
HE OBTAINED A QUANTITY OF NARCOTICS WHICH HE SHARED WITH KALCHINIAN. 
EACH TIME PETITIONER TOLD KALCHINIAN THAT THE TOTAL COST OF NARCOTICS
HE OBTAINED WAS TWENTY-FIVE DOLLARS AND THAT KALCHINIAN OWED HIM
FIFTEEN DOLLARS.  THE INFORMER THUS BORE THE COST OF HIS SHARE OF THE
NARCOTICS PLUS THE TAXI AND OTHER EXPENSES NECESSARY TO OBTAIN THE
DRUG.  AFTER SEVERAL SUCH SALES KALCHINIAN INFORMED AGENTS OF THE
BUREAU OF NARCOTICS THAT HE HAD ANOTHER SELLER FOR THEM.  ON THREE
OCCASIONS DURING NOVEMBER 1951, GOVERNMENT AGENTS OBSERVED PETITIONER
GIVE NARCOTICS TO KALCHINIAN IN RETURN FOR MONEY SUPPLIED BY THE
GOVERNMENT. 

AT THE TRIAL THE FACTUAL ISSUE WAS WHETHER THE INFORMER HAD CONVINCED
AN OTHERWISE UNWILLING PERSON TO COMMIT A CRIMINAL ACT OR WHETHER
PETITIONER WAS ALREADY PREDISPOSED TO COMMIT THE ACT AND EXHIBITED ONLY
THE NATURAL HESITANCY OF ONE ACQUAINTED WITH THE NARCOTICS TRADE.  THE
ISSUE OF ENTRAPMENT WENT TO THE JURY, (FN1) AND A CONVICTION RESULTED. 
PETITIONER WAS SENTENCED TO IMPRISONMENT FOR TEN YEARS.  THE COURT OF
APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  240 F.2D 949.  WE GRANTED
CERTIORARI.  353 U.S. 935. 

IN SORRELLS V. UNITED STATES, 287 U.S. 435, THIS COURT FIRMLY
RECOGNIZED THE DEFENSE OF ENTRAPMENT IN THE FEDERAL COURTS.  THE
INTERVENING YEARS HAVE IN NO WAY DETRACTED FROM THE PRINCIPLES
UNDERLYING THAT DECISION.  THE FUNCTION OF LAW ENFORCEMENT IS THE
PREVENTION OF CRIME AND THE APPREHENSION OF CRIMINALS.  MANIFESTLY,
THAT FUNCTION DOES NOT INCLUDE THE MANUFACTURING OF CRIME.  CRIMINAL
ACTIVITY IS SUCH THAT STEALTH AND STRATEGY ARE NECESSARY WEAPONS IN THE
ARSENAL OF THE POLICE OFFICER.  HOWEVER, "A DIFFERENT QUESTION IS
PRESENTED WHEN THE CRIMINAL DESIGN ORIGINATES WITH THE OFFICIALS OF THE
GOVERNMENT, AND THEY IMPLANT IN THE MIND OF AN INNOCENT PERSON THE
DISPOSITION TO COMMIT THE ALLEGED OFFENSE AND INDUCE ITS COMMISSION IN
ORDER THAT THEY MAY PROSECUTE."  287 U.S., AT 442.  THEN STEALTH AND
STRATEGY BECOME AS OBJECTIONABLE POLICE METHODS AS THE COERCED
CONFESSION AND THE UNLAWFUL SEARCH.  CONGRESS COULD NOT HAVE INTENDED
THAT ITS STATUTES WERE TO BE ENFORCED BY TEMPTING INNOCENT PERSONS INTO
VIOLATIONS. 

HOWEVER, THE FACT THAT GOVERNMENT AGENTS "MERELY AFFORD OPPORTUNITIES
OR FACILITIES FOR THE COMMISSION OF THE OFFENSE DOES NOT" CONSTITUTE
ENTRAPMENT.  ENTRAPMENT OCCURS ONLY WHEN THE CRIMINAL CONDUCT WAS "THE
PRODUCT OF THE CREATIVE ACTIVITY" OF LAW-ENFORCEMENT OFFICIALS.  SEE
287 U.S., AT 441, 451.  TO DETERMINE WHETHER ENTRAPMENT HAS BEEN
ESTABLISHED, A LINE MUST BE DRAWN BETWEEN THE TRAP FOR THE UNWARY
INNOCENT AND THE TRAP FOR THE UNWARY CRIMINAL.  THE PRINCIPLES BY WHICH
THE COURTS ARE TO MAKE THIS DETERMINATION WERE OUTLINED IN SORRELLS. 
ON THE ONE HAND, AT TRIAL THE ACCUSED MAY EXAMINE THE CONDUCT OF THE
GOVERNMENT AGENT; AND ON THE OTHER HAND, THE ACCUSED WILL BE SUBJECTED
TO AN "APPROPRIATE AND SEARCHING INQUIRY INTO HIS OWN CONDUCT AND
PREDISPOSITION" AS BEARING ON HIS CLAIM OF INNOCENCE.  SEE 287 U.S., AT
451. 

WE CONCLUDE FROM THE EVIDENCE THAT ENTRAPMENT WAS ESTABLISHED AS A
MATTER OF LAW.  IN SO HOLDING, WE ARE NOT CHOOSING BETWEEN CONFLICTING
WITNESSES, NOR JUDGING CREDIBILITY.  ASIDE FROM RECALLING KALCHINIAN,
WHO WAS THE GOVERNMENT'S WITNESS, THE DEFENSE CALLED NO WITNESSES.  WE
REACH OUR CONCLUSION FROM THE UNDISPUTED TESTIMONY OF THE PROSECUTION'S
WITNESSES. 

IT IS PATENTLY CLEAR THAT PETITIONER WAS INDUCED BY KALCHINIAN.  THE
INFORMER HIMSELF TESTIFIED THAT, BELIEVING PETITIONER TO BE UNDERGOING
A CURE FOR NARCOTICS ADDICTION, HE NONETHELESS SOUGHT TO PERSUADE
PETITIONER TO OBTAIN FOR HIM A SOURCE OF NARCOTICS.  IN KALCHINIAN'S
OWN WORDS WE ARE TOLD OF THE ACCIDENTAL, YET RECURRING, MEETINGS, THE
ENSUING CONVERSATIONS CONCERNING MUTUAL EXPERIENCES IN REGARD TO
NARCOTICS ADDICTION, AND THEN OF KALCHINIAN'S RESORT TO SYMPATHY.  ONE
REQUEST WAS NOT ENOUGH, FOR KALCHINIAN TELLS US THAT ADDITIONAL ONES
WERE NECESSARY TO OVERCOME, FIRST, PETITIONER'S REFUSAL, THEN HIS
EVASIVENESS, AND THEN HIS HESITANCY IN ORDER TO ACHIEVE CAPITULATION. 
KALCHINIAN NOT ONLY PROCURED A SOURCE OF NARCOTICS BUT APPARENTLY ALSO
INDUCED PETITIONER TO RETURN TO THE HABIT.  FINALLY, ASSURED OF A
CATCH, KALCHINIAN INFORMED THE AUTHORITIES SO THAT THEY COULD CLOSE THE
NET.  THE GOVERNMENT CANNOT DISOWN KALCHINIAN AND INSIST IT IS NOT
RESPONSIBLE FOR HIS ACTIONS.  ALTHOUGH HE WAS NOT BEING PAID,
KALCHINIAN WAS AN ACTIVE GOVERNMENT INFORMER WHO HAD BUT RECENTLY BEEN
THE INSTIGATOR OF AT LEAST TWO OTHER PROSECUTIONS.  (FN2)  UNDOUBTEDLY
THE IMPETUS FOR SUCH ACHIEVEMENTS WAS THE FACT THAT IN 1951 KALCHINIAN
WAS HIMSELF UNDER CRIMINAL CHARGES FOR ILLEGALLY SELLING NARCOTICS AND
HAD NOT YET BEEN SENTENCED.  (FN3)  IT MAKES NO DIFFERENCE THAT THE
SALES FOR WHICH PETITIONER WAS CONVICTED OCCURRED AFTER A SERIES OF
SALES.  THEY WERE NOT INDEPENDENT ACTS SUBSEQUENT TO THE INDUCEMENT BUT
PART OF A COURSE OF CONDUCT WHICH WAS THE PRODUCT OF THE INDUCEMENT. 
IN HIS TESTIMONY THE FEDERAL AGENT IN CHARGE OF THE CASE ADMITTED THAT
HE NEVER BOTHERED TO QUESTION KALCHINIAN ABOUT THE WAY HE HAD MADE
CONTACT WITH PETITIONER.  THE GOVERNMENT CANNOT MAKE SUCH USE OF AN
INFORMER AND THEN CLAIM DISASSOCIATION THROUGH IGNORANCE. 

THE GOVERNMENT SOUGHT TO OVERCOME THE DEFENSE OF ENTRAPMENT BY
CLAIMING THAT PETITIONER EVINCED A "READY COMPLAISANCE" TO ACCEDE TO
KALCHINIAN'S REQUEST.  ASIDE FROM A RECORD OF PAST CONVICTIONS, WHICH
WE DISCUSS IN THE FOLLOWING PARAGRAPH, THE GOVERNMENT'S CASE IS
UNSUPPORTED.  THERE IS NO EVIDENCE THAT PETITIONER HIMSELF WAS IN THE
TRADE.  WHEN HIS APARTMENT WAS SEARCHED AFTER ARREST, NO NARCOTICS WERE
FOUND.  THERE IS NO SIGNIFICANT EVIDENCE THAT PETITIONER EVEN MADE A
PROFIT ON ANY SALE TO KALCHINIAN.  (FN4)  THE GOVERNMENT'S
CHARACTERIZATION OF PETITIONER'S HESITANCY TO KALCHINIAN'S REQUEST AS
THE NATURAL WARINESS OF THE CRIMINAL CANNOT FILL THE EVIDENTIARY VOID. 
(FN5) 

THE GOVERNMENT'S ADDITIONAL EVIDENCE IN THE SECOND TRIAL TO SHOW THAT
PETITIONER WAS READY AND WILLING TO SELL NARCOTICS SHOULD THE
OPPORTUNITY PRESENT ITSELF WAS PETITIONER'S RECORD OF TWO PAST
NARCOTICS CONVICTIONS.  IN 1942 PETITIONER WAS CONVICTED OF ILLEGALLY
SELLING NARCOTICS; IN 1946 HE WAS CONVICTED OF ILLEGALLY POSSESSING
THEM.  HOWEVER, A NINE-YEAR-OLD SALES CONVICTION AND A FIVE-YEAR-OLD
POSSESSION CONVICTION ARE INSUFFICIENT TO PROVE PETITIONER HAD A
READINESS TO SELL NARCOTICS AT THE TIME KALCHINIAN APPROACHED HIM,
PARTICULARLY WHEN WE MUST ASSUME FROM THE RECORD HE WAS TRYING TO
OVERCOME THE NARCOTICS HABIT AT THE TIME. 

THE CASE AT BAR ILLUSTRATES AN EVIL WHICH THE DEFENSE OF ENTRAPMENT
IS DESIGNED TO OVERCOME.  THE GOVERNMENT INFORMER ENTICES SOMEONE
ATTEMPTING TO AVOID NARCOTICS NOT ONLY INTO CARRYING OUT AN ILLEGAL
SALE BUT ALSO INTO RETURNING TO THE HABIT OF USE.  SELECTING THE PROPER
TIME, THE INFORMER THEN TELLS THE GOVERNMENT AGENT.  THE SETUP IS
ACCEPTED BY THE AGENT WITHOUT EVEN A QUESTION AS TO THE MANNER IN WHICH
THE INFORMER ENCOUNTERED THE SELLER.  THUS THE GOVERNMENT PLAYS ON THE
WEAKNESSES OF AN INNOCENT PARTY AND BEGUILES HIM INTO COMMITTING CRIMES
WHICH HE OTHERWISE WOULD NOT HAVE ATTEMPTED.  (FN6)  LAW ENFORCEMENT
DOES NOT REQUIRE METHODS SUCH AS THIS. 

IT HAS BEEN SUGGESTED THAT IN OVERTURNING THIS CONVICTION WE SHOULD
REASSESS THE DOCTRINE OF ENTRAPMENT ACCORDING TO PRINCIPLES ANNOUNCED
IN THE SEPARATE OPINION OF MR. JUSTICE ROBERTS IN SORRELLS V. UNITED
STATES, 287 U.S. 435, 453.  TO DO SO WOULD BE TO DECIDE THE CASE ON
GROUNDS REJECTED BY THE MAJORITY IN SORRELLS AND, SO FAR AS THE RECORD
SHOWS, NOT RAISED HERE OR BELOW BY THE PARTIES BEFORE US.  WE DO NOT
ORDINARILY DECIDE ISSUES NOT PRESENTED BY THE PARTIES AND THERE IS GOOD
REASON NOT TO VARY THAT PRACTICE IN THIS CASE. 

AT LEAST TWO IMPORTANT ISSUES OF LAW ENFORCEMENT AND TRIAL PROCEDURE
WOULD HAVE TO BE DECIDED WITHOUT THE BENEFIT OF ARGUMENT BY THE
PARTIES, ONE PARTY BEING THE GOVERNMENT.  MR. JUSTICE ROBERTS ASSERTED
THAT ALTHOUGH THE DEFENDANT COULD CLAIM THAT THE GOVERNMENT HAD INDUCED
HIM TO COMMIT THE CRIME, THE GOVERNMENT COULD NOT REPLY BY SHOWING THAT
THE DEFENDANT'S CRIMINAL CONDUCT WAS DUE TO HIS OWN READINESS AND NOT
TO THE PERSUASION OF GOVERNMENT AGENTS.  THE HANDICAP THUS PLACED ON
THE PROSECUTION IS OBVIOUS.  (FN7)  FURTHERMORE, IT WAS THE POSITION OF
MR. JUSTICE ROBERTS THAT THE FACTUAL ISSUE OF ENTRAPMENT - NOW LIMITED
TO THE QUESTION OF WHAT THE GOVERNMENT AGENTS DID - SHOULD BE DECIDED
BY THE JUDGE, NOT THE JURY.  NOT ONLY WAS THIS REJECTED BY THE COURT IN
SORRELLS, BUT WHERE THE ISSUE HAS BEEN PRESENTED TO THEM, THE COURTS OF
APPEALS HAVE SINCE SORRELLS UNANIMOUSLY CONCLUDED THAT UNLESS IT CAN BE
DECIDED AS A MATTER OF LAW, THE ISSUE OF WHETHER A DEFENDANT HAS BEEN
ENTRAPPED IS FOR THE JURY AS PART OF ITS FUNCTION OF DETERMINING THE
GUILT OR INNOCENCE OF THE ACCUSED.  (FN8) 

TO DISPOSE OF THIS CASE ON THE GROUND SUGGESTED WOULD ENTAIL BOTH
OVERRULING A LEADING DECISION OF THIS COURT AND BRUSHING ASIDE THE
POSSIBILITY THAT WE WOULD BE CREATING MORE PROBLEMS THAN WE WOULD
SUPPOSEDLY BE SOLVING. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE
INDICTMENT.  REVERSED AND REMANDED. 

FN1  THE CHARGE TO THE JURY WAS NOT IN ISSUE HERE. 

FN2  "Q.  AND IT WAS YOUR (KALCHINIAN'S) JOB, WAS IT NOT, WHILE YOU
WERE WORKING WITH THESE AGENTS TO GO OUT AND TRY AND INDUCE SOMEBODY TO
SELL YOU NARCOTICS, ISN'T THAT TRUE? 

     *         *         *         *         * 

"A.  NO, IT WASN'T MY JOB AT ALL TO DO ANYTHING OF THE KIND. 

"Q.  DO YOU REMEMBER THIS QUESTION (ASKED AT THE FIRST TRIAL) -  ...
'Q.  AND IT WAS YOUR JOB WHILE WORKING WITH THESE AGENTS TO GO OUT AND
TRY AND INDUCE A PERSON TO SELL NARCOTICS TO YOU, ISN'T THAT CORRECT? 
A. I WOULD SAY YES TO THAT.'  DO YOU REMEMBER THAT? 

"A.  IF THAT IS WHAT I SAID, LET IT STAND JUST THAT WAY. 

     *         *         *         *         * 

"Q.  SO WHEN YOU TESTIFY NOW THAT IT WAS NOT YOUR JOB YOU ARE NOT
TELLING THE TRUTH? 

"A.  I MEAN BY JOB THAT NOBODY HIRED ME FOR THAT.  THAT IS WHAT I
INFERRED, OTHERWISE I MEANT THE SAME THING IN MY ANSWER TO YOUR
QUESTION."  R. 100. 

FN3  "Q.  BUT YOU HAD MADE A PROMISE, AN AGREEMENT, THOUGH, TO
COOPERATE WITH THE FEDERAL BUREAU OF NARCOTICS BEFORE YOU RECEIVED A
SUSPENDED SENTENCE FROM THE COURT? 

"A.  (KALCHINIAN).  I HAD PROMISED TO COOPERATE IN 1951. 

"Q.  AND THAT WAS BEFORE YOUR SENTENCE? 

"A.  YES, THAT WAS BEFORE MY SENTENCE."  R. 99. 

KALCHINIAN RECEIVED A SUSPENDED SENTENCE IN 1952 AFTER A STATEMENT BY
THE UNITED STATES ATTORNEY TO THE JUDGE THAT HE HAD BEEN COOPERATIVE
WITH THE GOVERNMENT.  R. 89, 98. 

FN4  AT ONE POINT KALCHINIAN DID TESTIFY THAT HE HAD PREVIOUSLY
RECEIVED THE SAME AMOUNT OF NARCOTICS AT SOME UNSPECIFIED LOWER PRICE. 
HE CHARACTERIZED THIS OTHER PRICE AS "NOT QUITE" THE PRICE HE PAID
PETITIONER.  R. 80. 

FN5  IT IS OF INTEREST TO NOTE THAT ON THE FIRST APPEAL IN THIS CASE
THE COURT OF APPEALS CAME TO THE SAME CONCLUSION AS WE DO AS TO THE
EVIDENCE DISCUSSED SO FAR.  SEE UNITED STATES V. SHERMAN, 200 F.2D 880,
883. 

FN6  CF. E.G., LUTFY V. UNITED STATES, 198 F.2D 760; WALL V. UNITED
STATES, 65 F.2D 993; BUTTS V. UNITED STATES, 273 F. 35. 

FN7  IN THE FIRST APPEAL OF THIS CASE JUDGE LEARNED HAND STATED:
"INDEED, IT WOULD SEEM PROBABLE THAT, IF THERE WERE NO REPLY TO THE
CLAIM OF INDUCEMENT, IT WOULD BE IMPOSSIBLE EVER TO SECURE CONVICTIONS
OF ANY OFFENCES WHICH CONSIST OF TRANSACTIONS THAT ARE CARRIED ON IN
SECRET."  UNITED STATES V. SHERMAN, 200 F.2D 880, 882.    FN8  FOR
EXAMPLE, IN THE FOLLOWING CASES THE COURTS HAVE, IN AFFIRMING
CONVICTIONS, HELD THAT THE ISSUE OF ENTRAPMENT HAD BEEN PROPERLY
SUBMITTED TO THE JURY.  UNITED STATES V. LINDENFELD, 142 F.2D 829
(C.A.2D CIR.); UNITED STATES V. BRANDENBURG, 162 F.2D 980 (C.A. 3D
CIR.); DEMOS V. UNITED STATES, 205 F.2D 596 (C.A. 5TH CIR.); NERO V.
UNITED STATES, 189 F.2D 515 (C.A. 6TH CIR.); UNITED STATES V. CERONE,
150 F.2D 382 (C.A. 7TH CIR.); LOUIE HUNG V. UNITED STATES, 111 F.2D 325
(C.A. 9TH CIR.); RYLES V. UNITED STATES, 183 F.2D 944 (C.A. 10TH CIR.);
CRATTY V. UNITED STATES, 82 U.S. APP. D.C. 236, 163 F.2D 844.  AND IN
THE FOLLOWING CASES THE COURTS HAVE REVERSED CONVICTIONS WHERE THE
ISSUE OF ENTRAPMENT WAS EITHER NOT SUBMITTED TO THE JURY OR WAS
SUBMITTED ON IMPROPER INSTRUCTIONS.  UNITED STATES V. SHERMAN, 200 F.2D
880 (C.A.2D CIR.); UNITED STATES V. SAWYER, 210 F.2D 169 (C.A. 3D
CIR.); WALL V. UNITED STATES, 65 F.2D 993 (C.A. 5TH CIR.); LUTFY V.
UNITED STATES, 198 F.2D 760 (C.A. 9TH CIR.); YEP V. UNITED STATES, 83
F.2D 41 (C.A. 10TH CIR.). 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
HARLAN, AND MR. JUSTICE BRENNAN JOIN, CONCURRING IN THE RESULT. 

ALTHOUGH AGREEING WITH THE COURT THAT THE UNDISPUTED FACTS SHOW
ENTRAPMENT AS A MATTER OF LAW, I REACH THIS RESULT BY A ROUTE DIFFERENT
FROM THE COURT'S. 

THE FIRST CASE IN WHICH A FEDERAL COURT CLEARLY RECOGNIZED AND
SUSTAINED A CLAIM OF ENTRAPMENT BY GOVERNMENT OFFICERS AS A DEFENSE TO
AN INDICTMENT WAS, APPARENTLY, WOO WAI V. UNITED STATES, 223 F. 412. 
YET THE BASIS OF THIS DEFENSE, AFFORDING GUIDANCE FOR ITS APPLICATION
IN PARTICULAR CIRCUMSTANCES, IS AS MUCH IN DOUBT TODAY AS IT WAS WHEN
THE DEFENSE WAS FIRST RECOGNIZED OVER FORTY YEARS AGO, ALTHOUGH
ENTRAPMENT HAS BEEN THE DECISIVE ISSUE IN MANY PROSECUTIONS.  THE LOWER
COURTS HAVE CONTINUED GROPINGLY TO EXPRESS THE FEELING OF OUTRAGE AT
CONDUCT OF LAW ENFORCERS THAT BROUGHT RECOGNITION OF THE DEFENSE IN THE
FIRST INSTANCE, BUT WITHOUT THE FORMULATED BASIS IN REASON THAT IT IS
THE FIRST DUTY OF COURTS TO CONSTRUCT FOR JUSTIFYING AND GUIDING
EMOTION AND INSTINCT. 

TODAY'S OPINION DOES NOT PROMOTE THIS JUDICIAL DESIDERATUM, AND FAILS
TO GIVE THE DOCTRINE OF ENTRAPMENT THE SOLID FOUNDATION THAT THE
DECISIONS OF THE LOWER COURTS AND CRITICISM OF LEARNED WRITERS HAVE
CLEARLY SHOWN IS NEEDED.  (FN1)  INSTEAD IT ACCEPTS WITHOUT RE
EXAMINATION THE THEORY ESPOUSED IN SORRELLS V. UNITED STATES, 287 U.S.
435, OVER STRONG PROTEST BY MR. JUSTICE ROBERTS, SPEAKING FOR BRANDEIS
AND STONE, JJ., AS WELL AS HIMSELF.  THE FACT THAT SINCE THE SORRELLS
CASE THE LOWER COURTS HAVE EITHER IGNORED ITS THEORY AND CONTINUED TO
REST DECISION ON THE NARROW FACTS OF EACH CASE, OR HAVE FAILED AFTER
PENETRATING EFFORT TO DEFINE A SATISFACTORY GENERALIZATION, SEE, E.G.,
UNITED STATES V. BECKER, 62 F.2D 1007 (L. HAND, J.), IS PROOF THAT THE
PREVAILING THEORY OF THE SORRELLS CASE OUGHT NOT TO BE DEEMED THE LAST
WORD.  IN A MATTER OF THIS KIND THE COURT SHOULD NOT REST ON THE FIRST
ATTEMPT AT AN EXPLANATION FOR WHAT SOUND INSTINCT COUNSELS.  IT SHOULD
NOT FOREGO RE-EXAMINATION TO ACHIEVE CLARITY OF THOUGHT, BECAUSE
CONFUSED AND INADEQUATE ANALYSIS IS TOO APT GRADUALLY TO LEAD TO A
COURSE OF DECISIONS THAT DIVERGES FROM THE TRUE ENDS TO BE PURSUED. 
(FN2) 

IT IS SURELY SHEER FICTION TO SUGGEST THAT A CONVICTION CANNOT BE HAD
WHEN A DEFENDANT HAS BEEN ENTRAPPED BY GOVERNMENT OFFICERS OR INFORMERS
BECAUSE "CONGRESS COULD NOT HAVE INTENDED THAT ITS STATUTES WERE TO BE
ENFORCED BY TEMPTING INNOCENT PERSONS INTO VIOLATIONS."  IN THESE CASES
RAISING CLAIMS OF ENTRAPMENT, THE ONLY LEGISLATIVE INTENTION THAT CAN
WITH ANY SHOW OF REASON BE EXTRACTED FROM THE STATUTE IS THE INTENTION
TO MAKE CRIMINAL PRECISELY THE CONDUCT IN WHICH THE DEFENDANT HAS
ENGAGED.  THAT CONDUCT INCLUDES ALL THE ELEMENTS NECESSARY TO
CONSTITUTE CRIMINALITY.  WITHOUT COMPULSION AND "KNOWINGLY," WHERE THAT
IS REQUISITE, THE DEFENDANT HAS VIOLATED THE STATUTORY COMMAND.  IF HE
IS TO BE RELIEVED FROM THE USUAL PUNITIVE CONSEQUENCES, IT IS ON NO
ACCOUNT BECAUSE HE IS INNOCENT OF THE OFFENSE DESCRIBED.  IN THESE
CIRCUMSTANCES, CONDUCT IS NOT LESS CRIMINAL BECAUSE THE RESULT OF
TEMPTATION, WHETHER THE TEMPTER IS A PRIVATE PERSON OR A GOVERNMENT
AGENT OR INFORMER. 

THE COURTS REFUSE TO CONVICT AN ENTRAPPED DEFENDANT, NOT BECAUSE HIS
CONDUCT FALLS OUTSIDE THE PROSCRIPTION OF THE STATUTE, BUT BECAUSE,
EVEN IF HIS GUILT BE ADMITTED, THE METHODS EMPLOYED ON BEHALF OF THE
GOVERNMENT TO BRING ABOUT CONVICTION CANNOT BE COUNTENANCED.  AS MR.
JUSTICE HOLMES SAID IN OLMSTEAD V. UNITED STATES, 277 U.S. 438, 470
(DISSENTING), IN ANOTHER CONNECTION, "IT IS DESIRABLE THAT CRIMINALS
SHOULD BE DETECTED, AND TO THAT END THAT ALL AVAILABLE EVIDENCE SHOULD
BE USED.  IT ALSO IS DESIRABLE THAT THE GOVERNMENT SHOULD NOT ITSELF
FOSTER AND PAY FOR OTHER CRIMES, WHEN THEY ARE THE MEANS BY WHICH THE
EVIDENCE IS TO BE OBTAINED  ...  .  FOR MY PART I THINK IT A LESS EVIL
THAT SOME CRIMINALS SHOULD ESCAPE THAN THAT THE GOVERNMENT SHOULD PLAY
AN IGNOBLE PART."  INSOFAR AS THEY ARE USED AS INSTRUMENTALITIES IN THE
ADMINISTRATION OF CRIMINAL JUSTICE, THE FEDERAL COURTS HAVE AN
OBLIGATION TO SET THEIR FACE AGAINST ENFORCEMENT OF THE LAW BY LAWLESS
MEANS OR MEANS THAT VIOLATE RATIONALLY VINDICATED STANDARDS OF JUSTICE,
AND TO REFUSE TO SUSTAIN SUCH METHODS BY EFFECTUATING THEM.  THEY DO
THIS IN THE EXERCISE OF A RECOGNIZED JURISDICTION TO FORMULATE AND
APPLY "PROPER STANDARDS FOR THE ENFORCEMENT OF THE FEDERAL CRIMINAL LAW
IN THE FEDERAL COURTS," MCNABB V. UNITED STATES, 318 U.S. 332, 341, AN
OBLIGATION THAT GOES BEYOND THE CONVICTION OF THE PARTICULAR DEFENDANT
BEFORE THE COURT.  PUBLIC CONFIDENCE IN THE FAIR AND HONORABLE
ADMINISTRATION OF JUSTICE, UPON WHICH ULTIMATELY DEPENDS THE RULE OF
LAW, IS THE TRANSCENDING VALUE AT STAKE. 

THE FORMULATION OF THESE STANDARDS DOES NOT IN ANY WAY CONFLICT WITH
THE STATUTE THE DEFENDANT HAS VIOLATED, OR INVOLVE THE INITIATION OF A
JUDICIAL POLICY DISREGARDING OR QUALIFYING THAT FRAMED BY CONGRESS.  A
FALSE CHOICE IS PUT WHEN IT IS SAID THAT EITHER THE DEFENDANT'S CONDUCT
DOES NOT FALL WITHIN THE STATUTE OR HE MUST BE CONVICTED.  THE STATUTE
IS WHOLLY DIRECTED TO DEFINING AND PROHIBITING THE SUBSTANTIVE OFFENSE
CONCERNED AND EXPRESSES NO PURPOSE, EITHER PERMISSIVE OR PROHIBITORY,
REGARDING THE POLICE CONDUCT THAT WILL BE TOLERATED IN THE DETECTION OF
CRIME.  A STATUTE PROHIBITING THE SALE OF NARCOTICS IS AS SILENT ON THE
QUESTION OF ENTRAPMENT AS IT IS ON THE ADMISSIBILITY OF ILLEGALLY
OBTAINED EVIDENCE.  IT IS ENACTED, HOWEVER, ON THE BASIS OF CERTAIN
PRESUPPOSITIONS CONCERNING THE ESTABLISHED LEGAL ORDER AND THE ROLE OF
THE COURTS WITHIN THAT SYSTEM IN FORMULATING STANDARDS FOR THE
ADMINISTRATION OF CRIMINAL JUSTICE WHEN CONGRESS ITSELF HAS NOT
SPECIFICALLY LEGISLATED TO THAT END.  SPECIFIC STATUTES ARE TO BE
FITTED INTO AN ANTECEDENT LEGAL SYSTEM. 

IT MIGHT BE THOUGHT THAT IT IS LARGELY AN ACADEMIC QUESTION WHETHER
THE COURT'S FINDING A BAR TO CONVICTION DERIVES FROM THE STATUTE OR
FROM A SUPERVISORY JURISDICTION OVER THE ADMINISTRATION OF CRIMINAL
JUSTICE; UNDER EITHER THEORY SUBSTANTIALLY THE SAME CONSIDERATIONS WILL
DETERMINE WHETHER THE DEFENSE OF ENTRAPMENT IS SUSTAINED.  BUT TO LOOK
TO A STATUTE FOR GUIDANCE IN THE APPLICATION OF A POLICY NOT REMOTELY
WITHIN THE CONTEMPLATION OF CONGRESS AT THE TIME OF ITS ENACTMENT IS TO
DISTORT ANALYSIS.  IT IS TO RUN THE RISK, FURTHERMORE, THAT THE COURT
WILL SHIRK THE RESPONSIBILITY THAT IS NECESSARILY IN ITS KEEPING, IF
CONGRESS IS TRULY SILENT, TO ACCOMMODATE THE DANGERS OF OVERZEALOUS LAW
ENFORCEMENT AND CIVILIZED METHODS ADEQUATE TO COUNTER THE INGENUITY OF
MODERN CRIMINALS.  THE REASONS THAT ACTUALLY UNDERLIE THE DEFENSE OF
ENTRAPMENT CAN TOO EASILY BE LOST SIGHT OF IN THE PURSUIT OF A WHOLLY
FICTITIOUS CONGRESSIONAL INTENT. 

THE CRUCIAL QUESTION, NOT EASY OF ANSWER, TO WHICH THE COURT MUST
DIRECT ITSELF IS WHETHER THE POLICE CONDUCT REVEALED IN THE PARTICULAR
CASE FALLS BELOW STANDARDS, TO WHICH COMMON FEELINGS RESPOND, FOR THE
PROPER USE OF GOVERNMENTAL POWER.  FOR ANSWER IT IS WHOLLY IRRELEVANT
TO ASK IF THE "INTENTION" TO COMMIT THE CRIME ORIGINATED WITH THE
DEFENDANT OR GOVERNMENT OFFICERS, OR IF THE CRIMINAL CONDUCT WAS THE
PRODUCT OF "THE CREATIVE ACTIVITY" OF LAW-ENFORCEMENT OFFICIALS.  YET
IN THE PRESENT CASE THE COURT REPEATS AND PURPORTS TO APPLY THESE
UNREVEALING TESTS.  OF COURSE IN EVERY CASE OF THIS KIND THE INTENTION
THAT THE PARTICULAR CRIME BE COMMITTED ORIGINATES WITH THE POLICE, AND
WITHOUT THEIR INDUCEMENT THE CRIME WOULD NOT HAVE OCCURRED.  BUT IT IS
PERFECTLY CLEAR FROM SUCH DECISIONS AS THE DECOY LETTER CASES IN THIS
COURT, E.G., GRIMM V. UNITED STATES, 156 U.S. 604, WHERE THE POLICE IN
EFFECT SIMPLY FURNISHED THE OPPORTUNITY FOR THE COMMISSION OF THE
CRIME, THAT THIS IS NOT ENOUGH TO ENABLE THE DEFENDANT TO ESCAPE
CONVICTION. 

THE INTENTION REFERRED TO, THEREFORE, MUST BE A GENERAL INTENTION OR
PREDISPOSITION TO COMMIT, WHENEVER THE OPPORTUNITY SHOULD ARISE, CRIMES
OF THE KIND SOLICITED, AND IN PROOF OF SUCH A PREDISPOSITION EVIDENCE
HAS OFTEN BEEN ADMITTED TO SHOW THE DEFENDANT'S REPUTATION, CRIMINAL
ACTIVITIES, AND PRIOR DISPOSITION.  THE DANGER OF PREJUDICE IN SUCH A
SITUATION, PARTICULARLY IF THE ISSUE OF ENTRAPMENT MUST BE SUBMITTED TO
THE JURY AND DISPOSED OF BY A GENERAL VERDICT OF GUILTY OR INNOCENT, IS
EVIDENT.  THE DEFENDANT MUST EITHER FOREGO THE CLAIM OF ENTRAPMENT OR
RUN THE SUBSTANTIAL RISK THAT, IN SPITE OF INSTRUCTIONS, THE JURY WILL
ALLOW A CRIMINAL RECORD OR BAD REPUTATION TO WEIGH IN ITS DETERMINATION
OF GUILT OF THE SPECIFIC OFFENSE OF WHICH HE STANDS CHARGED. 
FURTHERMORE, A TEST THAT LOOKS TO THE CHARACTER AND PREDISPOSITION OF
THE DEFENDANT RATHER THAN THE CONDUCT OF THE POLICE LOSES SIGHT OF THE
UNDERLYING REASON FOR THE DEFENSE OF ENTRAPMENT.  NO MATTER WHAT THE
DEFENDANT'S PAST RECORD AND PRESENT INCLINATIONS TO CRIMINALITY, OR THE
DEPTHS TO WHICH HE HAS SUNK IN THE ESTIMATION OF SOCIETY, CERTAIN
POLICE CONDUCT TO ENSNARE HIM INTO FURTHER CRIME IS NOT TO BE TOLERATED
BY AN ADVANCED SOCIETY.  AND IN THE PRESENT CASE IT IS CLEAR THAT THE
COURT IN FACT REVERSES THE CONVICTION BECAUSE OF THE CONDUCT OF THE
INFORMER KALCHINIAN, AND NOT BECAUSE THE GOVERNMENT HAS FAILED TO DRAW
A CONVINCING PICTURE OF PETITIONER'S PAST CRIMINAL CONDUCT. 
PERMISSIBLE POLICE ACTIVITY DOES NOT VARY ACCORDING TO THE PARTICULAR
DEFENDANT CONCERNED; SURELY IF TWO SUSPECTS HAVE BEEN SOLICITED AT THE
SAME TIME IN THE SAME MANNER, ONE SHOULD NOT GO TO JAIL SIMPLY BECAUSE
HE HAS BEEN CONVICTED BEFORE AND IS SAID TO HAVE A CRIMINAL
DISPOSITION.  NO MORE DOES IT VARY ACCORDING TO THE SUSPICIONS,
REASONABLE OR UNREASONABLE, OF THE POLICE CONCERNING THE DEFENDANT'S
ACTIVITIES.  APPEALS TO SYMPATHY, FRIENDSHIP, THE POSSIBILITY OF
EXORBITANT GAIN, AND SO FORTH, CAN NO MORE BE TOLERATED WHEN DIRECTED
AGAINST A PAST OFFENDER THAN AGAINST AN ORDINARY LAW-ABIDING CITIZEN. 
A CONTRARY VIEW RUNS AFOUL OF FUNDAMENTAL PRINCIPLES OF EQUALITY UNDER
LAW, AND WOULD ESPOUSE THE NOTION THAT WHEN DEALING WITH THE CRIMINAL
CLASSES ANYTHING GOES.  THE POSSIBILITY THAT NO MATTER WHAT HIS PAST
CRIMES AND GENERAL DISPOSITION THE DEFENDANT MIGHT NOT HAVE COMMITTED
THE PARTICULAR CRIME UNLESS CONFRONTED WITH INORDINATE INDUCEMENTS,
MUST NOT BE IGNORED.  PAST CRIMES DO NOT FOREVER OUTLAW THE CRIMINAL
AND OPEN HIM TO POLICE PRACTICES, AIMED AT SECURING HIS REPEATED
CONVICTION, FROM WHICH THE ORDINARY CITIZEN IS PROTECTED.  THE WHOLE
AMELIORATIVE HOPES OF MODERN PENOLOGY AND PRISON ADMINISTRATION
STRONGLY COUNSEL AGAINST SUCH A VIEW. 

THIS DOES NOT MEAN THAT THE POLICE MAY NOT ACT SO AS TO DETECT THOSE
ENGAGED IN CRIMINAL CONDUCT AND READY AND WILLING TO COMMIT FURTHER
CRIMES SHOULD THE OCCASION ARISE.  SUCH INDEED IS THEIR OBLIGATION.  IT
DOES MEAN THAT IN HOLDING OUT INDUCEMENTS THEY SHOULD ACT IN SUCH A
MANNER AS IS LIKELY TO INDUCE TO THE COMMISSION OF CRIME ONLY THESE
PERSONS AND NOT OTHERS WHO WOULD NORMALLY AVOID CRIME AND THROUGH SELF
STRUGGLE RESIST ORDINARY TEMPTATIONS.  THIS TEST SHIFTS ATTENTION FROM
THE RECORD AND PREDISPOSITION OF THE PARTICULAR DEFENDANT TO THE
CONDUCT OF THE POLICE AND THE LIKELIHOOD, OBJECTIVELY CONSIDERED, THAT
IT WOULD ENTRAP ONLY THOSE READY AND WILLING TO COMMIT CRIME.  IT IS AS
OBJECTIVE A TEST AS THE SUBJECT MATTER PERMITS, AND WILL GIVE GUIDANCE
IN REGULATING POLICE CONDUCT THAT IS LACKING WHEN THE REASONABLENESS OF
POLICE SUSPICIONS MUST BE JUDGED OR THE CRIMINAL DISPOSITION OF THE
DEFENDANT RETROSPECTIVELY APPRAISED.  IT DRAWS DIRECTLY ON THE
FUNDAMENTAL INTUITION THAT LED IN THE FIRST INSTANCE TO THE OUTLAWING
OF "ENTRAPMENT" AS A PROSECUTORIAL INSTRUMENT.  THE POWER OF GOVERNMENT
IS ABUSED AND DIRECTED TO AN END FOR WHICH IT WAS NOT CONSTITUTED WHEN
EMPLOYED TO PROMOTE RATHER THAN DETECT CRIME AND TO BRING ABOUT THE
DOWNFALL OF THOSE WHO, LEFT TO THEMSELVES, MIGHT WELL HAVE OBEYED THE
LAW.  HUMAN NATURE IS WEAK ENOUGH AND SUFFICIENTLY BESET BY TEMPTATIONS
WITHOUT GOVERNMENT ADDING TO THEM AND GENERATING CRIME. 

WHAT POLICE CONDUCT IS TO BE CONDEMNED, BECAUSE LIKELY TO INDUCE
THOSE NOT OTHERWISE READY AND WILLING TO COMMIT CRIME, MUST BE PICKED
OUT FROM CASE TO CASE AS NEW SITUATIONS ARISE INVOLVING DIFFERENT
CRIMES AND NEW METHODS OF DETECTION.  THE SORRELLS CASE INVOLVED
PERSISTENT SOLICITATION IN THE FACE OF OBVIOUS RELUCTANCE, AND APPEALS
TO SENTIMENTS AROUSED BY REMINISCENCES OF EXPERIENCES AS COMPANIONS IN
ARMS IN THE WORLD WAR.  PARTICULARLY REPREHENSIBLE IN THE PRESENT CASE
WAS THE USE OF REPEATED REQUESTS TO OVERCOME PETITIONER'S HESITANCY,
COUPLED WITH APPEALS TO SYMPATHY BASED ON MUTUAL EXPERIENCES WITH
NARCOTICS ADDICTION.  EVIDENCE OF THE SETTING IN WHICH THE INDUCEMENT
TOOK PLACE IS OF COURSE HIGHLY RELEVANT IN JUDGING ITS LIKELY EFFECT,
AND THE COURT SHOULD ALSO CONSIDER THE NATURE OF THE CRIME INVOLVED,
ITS SECRECY AND DIFFICULTY OF DETECTION, AND THE MANNER IN WHICH THE
PARTICULAR CRIMINAL BUSINESS IS USUALLY CARRIED ON.    AS MR. JUSTICE
ROBERTS CONVINCINGLY URGED IN THE SORRELLS CASE, SUCH A JUDGMENT, AIMED
AT BLOCKING OFF AREAS OF IMPERMISSIBLE POLICE CONDUCT, IS APPROPRIATE
FOR THE COURT AND NOT THE JURY.  "THE PROTECTION OF ITS OWN FUNCTIONS
AND THE PRESERVATION OF THE PURITY OF ITS OWN TEMPLE BELONGS ONLY TO
THE COURT.  IT IS THE PROVINCE OF THE COURT AND OF THE COURT ALONE TO
PROTECT ITSELF AND THE GOVERNMENT FROM SUCH PROSTITUTION OF THE
CRIMINAL LAW.  THE VIOLATION OF THE PRINCIPLES OF JUSTICE BY THE
ENTRAPMENT OF THE UNWARY INTO CRIME SHOULD BE DEALT WITH BY THE COURT
NO MATTER BY WHOM OR AT WHAT STAGE OF THE PROCEEDINGS THE FACTS ARE
BROUGHT TO ITS ATTENTION."  287 U.S., AT 457 (SEPARATE OPINION). 
EQUALLY IMPORTANT IS THE CONSIDERATION THAT A JURY VERDICT, ALTHOUGH IT
MAY SETTLE THE ISSUE OF ENTRAPMENT IN THE PARTICULAR CASE, CANNOT GIVE
SIGNIFICANT GUIDANCE FOR OFFICIAL CONDUCT FOR THE FUTURE.  ONLY THE
COURT, THROUGH THE GRADUAL EVOLUTION OF EXPLICIT STANDARDS IN
ACCUMULATED PRECEDENTS, CAN DO THIS WITH THE DEGREE OF CERTAINTY THAT
THE WISE ADMINISTRATION OF CRIMINAL JUSTICE DEMANDS. 

FN1  EXCELLENT DISCUSSIONS OF THE PROBLEM CAN BE FOUND IN MIKELL, THE
DOCTRINE OF ENTRAPMENT IN THE FEDERAL COURTS, 90 U. PA. L. REV. 245;
DONNELLY, JUDICIAL CONTROL OF INFORMANTS, SPIES, STOOL PIGEONS, AND
AGENT PROVOCATEURS, 60 YALE L.J. 1091, 1098-1115; NOTE, ENTRAPMENT BY
GOVERNMENT OFFICIALS, 28 COL. L. REV. 1067. 

FN2  IT IS OF COURSE NOT A RIGID RULE OF THIS COURT TO RESTRICT
CONSIDERATION OF A CASE MERELY TO ARGUMENTS ADVANCED BY COUNSEL. 
PRESUMABLY CERTIORARI WAS NOT GRANTED IN THIS CASE SIMPLY TO REVIEW THE
EVIDENCE UNDER AN ACCEPTED RULE OF LAW.  THE SOLUTION, WHEN AN ISSUE OF
REAL IMPORTANCE TO THE ADMINISTRATION OF CRIMINAL JUSTICE HAS NOT BEEN
ARGUED BY COUNSEL, IS NOT TO PERPETUATE A BAD RULE BUT TO SET THE CASE
DOWN FOR REARGUMENT WITH A VIEW TO RE-EXAMINING THAT RULE. 
..END :
























MASCIALE V. UNITED STATES 356 U.S. 386 


NO. 84.  ARGUED JANUARY 16, 1958 - DECIDED MAY 19, 1958 - 236 F.2D 601,
AFFIRMED. 


AT THE TRIAL IN A FEDERAL DISTRICT COURT IN WHICH PETITIONER WAS
CONVICTED OF THE ILLEGAL SALE OF NARCOTICS AND CONSPIRACY TO MAKE A
SALE, HE DID NOT DENY THE SALE OR HIS PARTICIPATION IN IT BUT CLAIMED
THAT HE WAS ENTRAPPED BY GOVERNMENT AGENTS.  THE TESTIMONY ON THE ISSUE
OF ENTRAPMENT WAS CONFLICTING, AND THE JUDGE SUBMITTED IT TO THE JURY
UNDER INSTRUCTIONS TO WHICH NO OBJECTION WAS MADE.  HELD:  ON THE
RECORD IN THIS CASE, THE TRIAL COURT PROPERLY SUBMITTED THE CASE TO THE
JURY, AND THE CONVICTION IS SUSTAINED.  PP. 386-388. 

MASCIALE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE SAME ISSUE AS SHERMAN V. UNITED STATES, ANTE,
P. 369, DECIDED THIS DAY: SHOULD PETITIONER'S CONVICTION BE SET ASIDE
ON THE GROUND THAT AS A MATTER OF LAW THE DEFENSE OF ENTRAPMENT WAS
ESTABLISHED?  CF. SORRELLS V. UNITED STATES, 287 U.S. 435.  PETITIONER
WAS CONVICTED ON THREE COUNTS, TWO OF WHICH CHARGED HIM WITH THE
ILLEGAL SALE OF NARCOTICS AND ONE WITH CONSPIRACY TO MAKE A SALE. 
(FN1)  THE ISSUE OF ENTRAPMENT WENT TO THE JURY, (FN2) AND CONVICTION
FOLLOWED.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  236
F.2D 601.  WE GRANTED CERTIORARI.  352 U.S. 1000. 

THE EVIDENCE DISCLOSES THE FOLLOWING EVENTS.  ON JANUARY 14, 1954,
PETITIONER WAS INTRODUCED TO GOVERNMENT AGENT MARSHALL BY A GOVERNMENT
INFORMER, KOWEL.  ALTHOUGH PETITIONER HAD KNOWN KOWEL FOR APPROXIMATELY
FOUR YEARS, HE WAS UNAWARE OF KOWEL'S UNDERCOVER ACTIVITIES.  MARSHALL
WAS INTRODUCED AS A BIG NARCOTICS BUYER.  BOTH MARSHALL AND PETITIONER
TESTIFIED CONCERNING THE ENSUING CONVERSATION.  MARSHALL TESTIFIED THAT
HE IMMEDIATELY MADE IT CLEAR THAT HE WANTED TO TALK ABOUT BUYING LARGE
QUANTITIES OF HIGH-GRADE NARCOTICS AND THAT IF PETITIONER WERE NOT
INTERESTED, THE CONVERSATION WOULD END AT ONCE.  INSTEAD OF LEAVING,
PETITIONER QUESTIONED MARSHALL ON HIS KNOWLEDGE OF THE NARCOTICS
TRAFFIC AND THEN BOASTED THAT WHILE HE WAS PRIMARILY A GAMBLER, "HE
KNEW SOMEONE WHOM HE CONSIDERED HIGH UP IN THE NARCOTICS TRAFFIC TO
WHOM HE WOULD INTRODUCE ME (MARSHALL) AND THAT I WAS ABLE TO GET - AND
I CAN QUOTE THIS - '88 PER CENT PURE HEROIN' FROM THIS SOURCE." 
MARSHALL ALSO STATED THAT PETITIONER GAVE HIM A TELEPHONE NUMBER WHERE
HE COULD BE REACHED.  IN HIS TESTIMONY PETITIONER ADMITTED THAT HE WAS
A GAMBLER AND HAD TOLD MARSHALL THAT THROUGH HIS GAMBLING CONTACTS HE
KNEW ABOUT THE NARCOTICS TRAFFIC.  HE DENIED THAT HE HAD THEN KNOWN ANY
AVAILABLE SOURCE OF NARCOTICS OR THAT HE SAID HE COULD OBTAIN NARCOTICS
FOR MARSHALL AT THAT TIME.  PETITIONER EXPLAINED THAT HE MET MARSHALL
ONLY TO HELP KOWEL IMPRESS MARSHALL.  PETITIONER ALSO SAID THAT IT WAS
MARSHALL WHO GAVE HIM THE TELEPHONE NUMBER.  IT IS NOTEWORTHY THAT
NOWHERE IN HIS TESTIMONY DID PETITIONER STATE THAT DURING THE
CONVERSATION EITHER MARSHALL OR KOWEL TRIED TO PERSUADE HIM TO ENTER
THE NARCOTICS TRAFFIC.  IN THE SIX WEEKS FOLLOWING THE CONVERSATION
JUST RELATED MARSHALL AND PETITIONER MET OR SPOKE WITH EACH OTHER AT
LEAST TEN TIMES; PETITIONER KEPT TELLING MARSHALL THAT HE WAS TRYING TO
MAKE HIS CONTACT BUT WAS HAVING TROUBLE DOING SO.  FINALLY, ON MARCH 1,
1954, PETITIONER INTRODUCED MARSHALL TO SEIFERT, WHO SOLD SOME HEROIN
TO MARSHALL ON THE NEXT DAY.  PETITIONER EVEN LOANED HIS SISTER'S CAR
TO SEIFERT IN ORDER TO GET THE NARCOTICS.  IT WAS THIS SALE FOR WHICH
PETITIONER WAS CONVICTED. 

IN THIS CASE ENTRAPMENT COULD HAVE OCCURRED IN ONLY ONE OF TWO WAYS. 
EITHER MARSHALL INDUCED PETITIONER, OR KOWEL DID.  AS FOR MARSHALL,
PETITIONER HAS CONCEDED HERE THAT THE JURY COULD HAVE FOUND THAT WHEN
PETITIONER MET MARSHALL HE WAS READY AND WILLING TO SEARCH OUT A SOURCE
OF NARCOTICS AND TO BRING ABOUT A SALE.  (FN3)  AS FOR KOWEL,
PETITIONER TESTIFIED THAT THE INFORMER ENGAGED IN A CAMPAIGN TO
PERSUADE HIM TO SELL NARCOTICS BY USING THE LURE OF EASY INCOME. 
PETITIONER ARGUES THAT THIS UNDISPUTED TESTIMONY (FN4) EXPLAINED WHY HE
WAS WILLING TO DEAL WITH MARSHALL AND SO ESTABLISHED ENTRAPMENT AS A
MATTER OF LAW.  HOWEVER, HIS TESTIMONY ALONE COULD NOT HAVE THIS
EFFECT.   WHILE PETITIONER PRESENTED ENOUGH EVIDENCE FOR THE JURY TO
CONSIDER, THEY WERE ENTITLED TO DISBELIEVE HIM IN REGARD TO KOWEL AND
SO FIND FOR THE GOVERNMENT ON THE ISSUE OF GUILT.  THEREFORE, THE TRIAL
COURT PROPERLY SUBMITTED THE CASE TO THE JURY.  (FN5) 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  SEE 26 U.S.C. SECS. 2553(A), 2554(A); 21 U.S.C. SEC. 174, AND 18
U.S.C. SEC. 2. 

FN2  THE CHARGE TO THE JURY WAS NOT IN ISSUE HERE. 

FN3  WELL MIGHT PETITIONER CONCEDE THIS, FOR DESPITE PETITIONER'S
VERSION OF THE MEETING AND HIS EXPLANATION FOR BEING THERE, THE JURY
COULD HAVE BELIEVED MARSHALL AND HAVE INFERRED FROM HIS NARRATION THAT
PETITIONER NEEDED NO PERSUASION TO SEEK A NARCOTICS BUYER. 

FN4  WE CONCLUDE FROM THE ARGUMENT THAT NEITHER PARTY EVEN ATTEMPTED
TO SUBPOENA KOWEL. 

FN5  FOR THE REASONS STATED IN SHERMAN V. UNITED STATES, ANTE, P.
369, WE DECLINE TO CONSIDER THE CONTENTION THAT THIS CASE SHOULD BE
REVERSED AND REMANDED TO THE DISTRICT COURT FOR A DETERMINATION OF THE
ISSUE OF ENTRAPMENT BY THE TRIAL JUDGE.  THIS ISSUE WAS NEVER RAISED BY
THE PARTIES.  THE QUESTION OF ENTRAPMENT WAS SUBMITTED TO THE JURY, AND
THE CHARGE TO THE JURY WAS NOT PUT IN ISSUE BY PETITIONER EITHER HERE
OR IN THE COURT OF APPEALS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
HARLAN, AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

THE TRIAL COURT IN THIS CASE, ACCORDING TO THE VIEWS EXPRESSED IN MY
CONCURRING OPINION IN SHERMAN V. UNITED STATES, ANTE, P. 378, SHOULD
ITSELF HAVE RULED ON THE ISSUE OF ENTRAPMENT AND NOT LEFT IT TO
DETERMINATION BY THE JURY.  ON A MERE READING OF THE COLD RECORD THE
EVIDENCE FOR SUSTAINING SUCH A CLAIM SEEMS RATHER THIN.  BUT THE JUDGE
WHO HEARD AND SAW THE WITNESSES MIGHT GIVE DIFFERENT WEIGHT TO THE
EVIDENCE THAN THE PRINTED RECORD REVEALS.  ACCORDINGLY, I WOULD REMAND
THE CASE TO THE DISTRICT COURT FOR DETERMINATION OF THE ISSUE OF
ENTRAPMENT BY THE TRIAL JUDGE.  IF HE SHOULD CONCLUDE, AS THE JURY WAS
ALLOWED TO CONCLUDE, THAT THE CLAIM OF ENTRAPMENT WAS NOT SUSTAINED,
THE CONVICTION WOULD STAND.  IF HE REACHED A DIFFERENT RESULT, THE
INDICTMENT SHOULD BE DISMISSED.  THIS SEEMS, ON MY VIEW OF THE LAW, A
BETTER DISPOSITION THAN FOR THIS COURT TO DECIDE THAT NO HARM WAS DONE
IN LEAVING THE QUESTION TO THE JURY BECAUSE AS A MATTER OF LAW THERE
WAS NO ENTRAPMENT. 
..END :



















THOMAS V. ARIZONA 356 U.S. 390 


NO. 88.  ARGUED MARCH 4-5, 1958 - DECIDED MAY 19, 1958 - 235 F.2D 775,
AFFIRMED. 


CONTENDING THAT HIS STATE-COURT CONVICTION OF MURDER WAS OBTAINED BY
USE OF A COERCED CONFESSION IN VIOLATION OF HIS RIGHTS UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, PETITIONER APPLIED TO A
FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS CORPUS.  THE WRIT WAS
DENIED WITHOUT A HEARING AFTER REVIEW OF THE ENTIRE RECORD.  PETITIONER
CLAIMED THAT HIS CONFESSION WAS COERCED BY FEAR OF LYNCHING.  AT THE
TIME OF HIS ARREST, HE WAS LASSOED AROUND THE NECK AND THEREAFTER
AROUND EITHER THE SHOULDER OR NECK BY ONE AND THEN ANOTHER LOCAL
RANCHER, NEITHER OF WHOM WAS OFFICIALLY CONNECTED WITH THE SHERIFF'S
POSSE.  AT THE FIRST ROPING, HE WAS JERKED A FEW STEPS IN THE DIRECTION
OF THE SHERIFF'S CAR AND THE NEAREST TREES, 200 YARDS AWAY; THE SECOND
ROPING OCCURRED SOON THEREAFTER AT THE PLACE WHERE ANOTHER NEGRO, WHOM
PETITIONER HAD ACCUSED OF THE CRIME, WAS APPREHENDED.  THIS TIME HE WAS
PULLED TO HIS KNEES.  ON BOTH OCCASIONS, THE SHERIFF IMMEDIATELY
REMOVED THE ROPE AND ORDERED THE RANCHER TO DESIST.  THE CONFESSION IN
ISSUE WAS MADE 20 HOURS LATER, WHEN PETITIONER WAS BROUGHT BEFORE A
JUSTICE OF THE PEACE FOR ARRAIGNMENT.  THE LATTER READ THE COMPLAINT TO
PETITIONER AND ADVISED HIM OF HIS RIGHTS, BUT PETITIONER DECLARED THAT
HE WAS GUILTY, DID NOT WANT A LAWYER AND HAD KILLED THE WOMAN.  DURING
THIS 20-HOUR INTERVAL, PETITIONER STOUTLY DENIED HIS GUILT AND
ATTEMPTED TO IMPLICATE ANOTHER SUSPECT, WHO SUBSEQUENTLY WAS FOUND TO
HAVE AN UNREFUTED ALIBI.  IN THAT TIME NO VIOLENCE OR THREAT OF
VIOLENCE OCCURRED, NO PROMISES WERE MADE, AND NO INTIMATION OF MOB
ACTION EXISTED.  PETITIONER WAS THEN 27 YEARS OF AGE, A VETERAN, OF
NORMAL INTELLIGENCE, AND POSSESSED OF AN EXTENSIVE CRIMINAL RECORD. 
DESPITE HIS DETERMINATION THAT THIS CONFESSION WAS VOLUNTARY, THE TRIAL
JUDGE FOUND THAT TWO LATER CONFESSIONS BY PETITIONER WERE PROCURED BY
FEAR OF LYNCHING AND HELD THEM INADMISSIBLE.  THE FIRST CONFESSION WAS
DISTINGUISHED ON THE GROUNDS (1) THAT IT WAS MADE IN THE SANCTUARY OF A
COURT OF LAW, AND (2) THAT IT WAS MADE IN THE PRESENCE OF THE SHERIFF
WHO PROTECTED PETITIONER AT THE ROPING AFFAIR.  HELD:  THE JUDGMENT IS
AFFIRMED.  PP. 391-404. 

(A)  ON ALL THE UNDISPUTED FACTS HERE, PETITIONER'S CONFESSION BEFORE
THE JUSTICE OF THE PEACE IS NOT SHOWN TO BE THE PRODUCT OF FEAR, DURESS
OR COERCION.  PP. 393-402. 

(B)  THIS COURT'S DETERMINATION OF THE CHARACTER OF THE FIRST
CONFESSION IS NEITHER CONTROLLED BY THE STATE'S DECISION THAT LATER
CONFESSIONS WERE INVOLUNTARY, NOR LIMITED TO THOSE FACTORS BY WHICH THE
STATE DIFFERENTIATED THE FIRST FROM THE LATER CONFESSIONS.  PP. 400
401. 

(C)  PETITIONER'S RELIANCE ON CERTAIN DISPUTED FACTS IS MISPLACED,
FOR THIS COURT'S INQUIRY IS LIMITED TO THE UNDISPUTED PORTIONS OF THE
RECORD WHEN EITHER THE TRIAL JUDGE OR THE JURY, WITH SUPERIOR
OPPORTUNITY TO GAUGE THE TRUTHFULNESS OF WITNESSES' TESTIMONY, HAS
FOUND THE CONFESSION TO BE VOLUNTARY.  PP. 402-403. 

(D)  THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE
WRIT OF HABEAS CORPUS WITHOUT A HEARING.  P. 403. 

(E)  THE DISTRICT COURT DID NOT ERR IN CONSIDERING A TRANSCRIPT WHICH
WAS FILED AS AN AFFIDAVIT BEFORE THAT COURT, DESPITE THE FACT THAT IT
WAS NOT PART OF THE TRIAL RECORD.  PP. 403-404. 

THOMAS V. ARIZONA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER HAS BEEN CONVICTED OF FIRST DEGREE MURDER AND SENTENCED TO
DEATH BY AN ARIZONA COURT FOR THE KILLING OF ONE JANIE MISCOVICH.  HE
ASKS THIS COURT TO REVERSE HIS CONVICTION ON THE GROUND THAT A
CONFESSION RECEIVED IN EVIDENCE AT HIS TRIAL WAS COERCED BY FEAR OF
LYNCHING, IN VIOLATION OF HIS RIGHTS UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT. 

THE VICTIM, PROPRIETOR OF A GROCERY STORE IN KANSAS SETTLEMENT,
ARIZONA, WAS KILLED WHILE TENDING HER STORE ON THE EVENING OF MARCH 16,
1953.  NO ONE WITNESSED THE CRIME, BUT STRONG CIRCUMSTANTIAL EVIDENCE
INDICATED THAT IT OCCURRED BETWEEN 10 P.M. AND 11 P.M., AND THAT
PETITIONER WAS RESPONSIBLE.  HE WAS ARRESTED THE NEXT DAY UNDER
CIRCUMSTANCES WHICH LEND CREDENCE TO HIS ASSERTION OF A "PUTATIVE
LYNCHING."  THE CONFESSION AT ISSUE, HOWEVER, WAS NOT MADE UNTIL THE
DAY FOLLOWING THE ARREST, WHEN HE WAS TAKEN BEFORE A JUSTICE OF THE
PEACE FOR PRELIMINARY EXAMINATION. 

AFTER AN INITIAL DETERMINATION OF VOLUNTARINESS, THE TRIAL JUDGE IN
THE SUPERIOR COURT OF COCHISE COUNTY, ARIZONA, SUBMITTED THE ISSUE OF
COERCION TO THE JURY UNDER INSTRUCTIONS TO IGNORE THE CONFESSION AS
EVIDENCE UNLESS IT WAS FOUND ENTIRELY VOLUNTARY.  A GENERAL VERDICT OF
GUILTY WAS RETURNED BY THE JURY AND ACCEPTED BY THE TRIAL COURT.  THE
SUPREME COURT OF ARIZONA AFFIRMED, 78 ARIZ. 52, 275 P.2D 408, AND WE
DENIED CERTIORARI.  (FN1)  350 U.S. 950 (1956).  PETITIONER THEN MADE
APPLICATION FOR HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA.  AFTER REVIEWING THE ENTIRE RECORD, THE
DISTRICT COURT DENIED THE WRIT WITHOUT A HEARING.  THE COURT OF APPEALS
AFFIRMED, 235 F.2D 775, AND WE GRANTED CERTIORARI BECAUSE OF THE
SERIOUSNESS OF PETITIONER'S ALLEGATIONS UNDER THE DUE PROCESS CLAUSE. 
352 U.S. 1024.  AN EXHAUSTIVE REVIEW OF THE RECORD, HOWEVER, IMPELS US
TO CONCLUDE THAT PETITIONER'S CONFESSION WAS "THE EXPRESSION OF FREE
CHOICE," WATTS V. INDIANA, 338 U.S. 49, 53 (1949), AND NOT THE PRODUCT
OF FEAR, DURESS, OR COERCION. 

THE PROSECUTION'S USE OF A COERCED CONFESSION FIRST LED TO THIS
COURT'S REVERSAL OF A STATE CONVICTION IN BROWN V. MISSISSIPPI, 297
U.S. 278 (1936).  OUR RESOLUTION OF SIMILAR CLAIMS IN SUBSEQUENT CASES
MAKES CLEAR THAT "THE QUESTION WHETHER THERE HAS BEEN A VIOLATION OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY THE INTRODUCTION
OF AN INVOLUNTARY CONFESSION IS ONE ON WHICH WE MUST MAKE AN
INDEPENDENT DETERMINATION ON THE UNDISPUTED FACTS."  MALINSKI V. NEW
YORK, 324 U.S. 401, 404 (1945).  NO ENCROACHMENT OF THE TRADITIONAL
JURY FUNCTION RESULTS, FOR THE ISSUE OF COERCION, UNLIKE THE BASIC
FACTS ON WHICH COERCION IS ASCERTAINED, INVOLVES THE APPLICATION OF
CONSTITUTIONAL STANDARDS OF FUNDAMENTAL FAIRNESS UNDER THE FOURTEENTH
AMENDMENT.  SEE BROWN V. ALLEN, 344 U.S. 443, 507 (1953)(CONCURRING
OPINION).  IN EACH INSTANCE OUR INQUIRY MUST WEIGH THE "CIRCUMSTANCES
OF PRESSURE AGAINST THE POWER OF RESISTANCE OF THE PERSON CONFESSING." 
FIKES V. ALABAMA, 352 U.S. 191, 197 (1957), QUOTING STEIN V. NEW YORK,
346 U.S. 156, 185 (1953). 

WE TURN THEN TO THE UNDISPUTED PORTIONS OF THE RECORD TO ASCERTAIN
THE FACTS AGAINST WHICH PETITIONER'S CLAIM OF COERCION MUST BE
MEASURED. 

                I. 

PETITIONER IS AN ITINERANT NEGRO LABORER WHO LIVED WITH HIS COMMON
LAW WIFE AND FOUR OTHER NEGROES, INCLUDING ONE ROSS LEE COOPER, A 17
YEAR-OLD BOY, IN AN OLD BARRACKS PROVIDED BY HIS EMPLOYER ABOUT A HALF
MILE FROM THE VICTIM'S STORE.  PETITIONER IS A NAVY VETERAN, 27 YEARS
OLD AT THE TIME OF THE MURDER, WITH A PARTIAL HIGH SCHOOL EDUCATION. 
HE HAD A CRIMINAL RECORD OF THREE DIFFERENT CONVICTIONS, THE MOST
SERIOUS BEING A FIVE-YEAR LARCENY SENTENCE, AS WELL AS TWO TERMS IN THE
NAVY BRIG FOR TWICE BEING ABSENT WITHOUT LEAVE FROM HIS SERVICE POST. 

THE BODY OF JANIE MISCOVICH WAS FOUND TUESDAY MORNING, MARCH 17.  A
SUPPLIER NOTICED SMOKE COMING FROM THE STORE AND SUMMONED THE HELP OF
THREE MEN CONSTRUCTING A BUILDING NEARBY, ONE OF WHOM WAS PETITIONER. 
PETITIONER DID NOTHING TO ASSIST IN PUTTING OUT THE FIRE, AND LEFT THE
SCENE BEFORE THE VICTIM'S BODY WAS DISCOVERED, DECLARING THAT HE "NEVER
COULD STAND THE STENCH OF BURNING FLESH."  ALTHOUGH THE BODY WAS
SEVERELY BEATEN AND BURNED, DEATH WAS ATTRIBUTED TO KNIFE WOUNDS IN THE
HEART, INFLICTED WITH A LARGE KNIFE FOUND LATER IN THE STORE. 

PRELIMINARY INVESTIGATION BY LOCAL POLICE DISCLOSED THAT PETITIONER
AND COOPER WERE AT THE STORE TOGETHER MONDAY AFTERNOON AND EVENING. 
AFTER THEY RETURNED TO THE BARRACKS AT APPROXIMATELY 8:30 P.M.,
PETITIONER LEFT AGAIN BY HIMSELF, RETURNING AROUND MIDNIGHT.  A TRAIL
OF BLOOD AND FOOTPRINTS WAS TRACED FROM THE STORE TO WITHIN 50 YARDS OF
THE BARRACKS, WHERE A STRIP OF FRESHLY HARROWED GROUND MADE FURTHER
TRACKING IMPOSSIBLE.  BLOOD SPOTS WERE FOUND IN THE KITCHEN OF THE
BARRACKS, AND TWO BLOODY GLOVES WERE FOUND HIDDEN NEAR THE BARRACKS. 
BOTH GLOVES WERE FOR THE RIGHT HAND AND ONE OF THEM WAS SLIT ACROSS THE
MIDDLE, RING AND LITTLE FINGERS.  MATCHING GLOVES WERE FOUND IN THE
STORE, WHERE NINE PAIRS PLUS TWO GLOVES FOR THE LEFT HAND REMAINED OUT
OF 12 PAIRS OF GLOVES STOCKED BY JANIE MISCOVICH ON MONDAY.  THE ONLY
PAIR OF SHOES PETITIONER OWNED, FOUND UNDER HIS BED IN THE BARRACKS,
EXACTLY MATCHED THE 13 1/2-INCH FOOTPRINTS TRAILED TO THE BARRACKS.  HE
HAD RETURNED TO THE BARRACKS AFTER DISCOVERY OF THE FIRE AND EXCHANGED
HIS SHOES FOR A PAIR OF OLD WORK BOOTS HE GOT "OUT OF THE TRASH PILE." 

                          II. 

A POSSE OF 12 TO 15 MEN HEADED BY THE SHERIFF OF COCHISE COUNTY
APPREHENDED PETITIONER TUESDAY AT 3 P.M. LYING UNDER A PASTURE BRUSH
PILE OVER 200 YARDS FROM THE ROAD AND ABOUT 1 1/2 MILES FROM KANSAS
SETTLEMENT.  THREE FINGERS OF HIS RIGHT HAND HAD BEEN SEVERELY CUT,
MATCHING THE SLITS IN THE BLOODY GLOVE FOUND OUTSIDE THE BARRACKS. 

PETITIONER WAS PLACED UNDER ARREST BY THE SHERIFF AND HANDCUFFED BY A
STATE HIGHWAY PATROLMAN WITH THE POSSE.  WHEN ASKED BY THE SHERIFF "WHY
HE HAD KILLED THE WOMAN," PETITIONER ASSERTED THAT HE HAD NOT KILLED
HER, BUT THAT HE COULD TAKE THE POSSE TO THE MAN WHO HAD DONE SO,
ACCUSING COOPER OF THE MURDER.  HE ALSO STATED THAT HE HAD CUT HIS HAND
ON A CAN.  AT THIS POINT A LOCAL RANCHER ON HORSEBACK, WHO HAD NO
OFFICIAL CONNECTION WITH THE SHERIFF'S POSSE, LASSOED PETITIONER AROUND
THE NECK AND JERKED HIM A FEW STEPS IN THE GENERAL DIRECTION OF BOTH
THE SHERIFF'S CAR AND THE NEAREST TREES, SOME 200 YARDS AWAY.  THE
SHERIFF QUICKLY INTERVENED, REMOVED THE ROPE, AND ADMONISHED, "STOP
THAT.  WE WILL HAVE NONE OF THAT  ...  ."  THERE WAS NO TALK OF
LYNCHING AMONG THE OTHER MEMBERS OF THE POSSE. 

THE SHERIFF THEN PUT PETITIONER AND TWO OTHER MEN IN HIS CAR AND
DROVE A FEW MILES SOUTH WHERE PETITIONER DIRECTED HIM IN SEARCH OF
COOPER.  THEY FOUND COOPER WORKING IN A FIELD ABOUT HALF A MILE OFF THE
ROAD.  THE SHERIFF BORROWED A HORSE FROM A MEMBER OF THE POSSE - WHICH
HAD FOLLOWED THE SHERIFF'S CAR - AND RODE ALONE ACROSS THE FIELD TO
ARREST COOPER.  AS HE WAS BRINGING COOPER BACK TO THE CAR, A SECOND
RANCHER ON HORSEBACK ROPED COOPER AROUND THE WAIST AND LED HIM ALONG. 
WHEN THEY REACHED THE CAR, THE SHERIFF REMOVED THE ROPE.  PETITIONER,
WHO HAD A FULL VIEW OF COOPER'S APPREHENSION, GOT OUT OF THE CAR AND
IDENTIFIED COOPER AS THE MISCOVICH KILLER. 

COOPER WAS HANDCUFFED AND STANDING BESIDE PETITIONER WHEN THE RANCHER
RESPONSIBLE FOR COOPER'S ROPING LASSOED BOTH MEN, CATCHING THEM EITHER
BY THEIR SHOULDERS OR THEIR NECKS AND PULLING THEM DOWN TO THEIR
KNEES.  THE SHERIFF, LOOKING "KIND OF MAD," REACTED "IMMEDIATELY,"
REMOVING THE ROPE AND SHOUTING, "HEY, STOP THAT.  WE WILL HAVE NO MORE
OF THAT."  TWO OR THREE OTHER MEN JOINED THE SHERIFF IN PROTESTING THE
THIRD ROPING INCIDENT.  NO TREES AT ALL COULD BE SEEN FROM THE LOCATION
OF THESE LAST TWO ROPINGS, AND NO MENTION OR THREAT OF LYNCHING WAS
HEARD. 

BY 4:30 P.M. BOTH PRISONERS HAD BEEN PLACED IN THE SHERIFF'S CAR. 
THEY WERE TAKEN DIRECTLY TO WILLCOX, THE NEAREST TOWN WITH A JUSTICE
COURT, FOR PRELIMINARY EXAMINATION IN COMPLIANCE WITH ARIZONA LAW. 
(FN2)  HOWEVER, THE JUDGE, WHO WAS ALSO A SCHOOL BUS DRIVER, ALREADY
HAD DEPARTED ON THE EVENING RUN.  BEFORE LEAVING WILLCOX, THE SHERIFF
STOPPED BRIEFLY AT THE LOCAL MORTUARY, WHERE THE BODY OF THE MURDER
VICTIM WAS SHOWN TO BOTH SUSPECTS.  THE PRISONERS THEN WERE TAKEN TO
BISBEE, SITE OF THE COUNTY JAIL AND COURTHOUSE.  ARRIVING THERE AFTER
CLOSING TIME OF THE NEAREST JUSTICE COURT, THE SHERIFF TOOK THEM TO
NEARBY WARREN FOR QUESTIONING BY THE COUNTY ATTORNEY. 

IT WAS 6 P.M. WHEN THE SHERIFF AND HIS PRISONERS REACHED THE HOME OF
THE COUNTY ATTORNEY, WHOM A PRIOR INJURY HAD CONFINED TO A FULL BODY
CAST AND STRETCHER.  PETITIONER AND COOPER WERE PLACED TOGETHER IN A
BACK BEDROOM UNDER GUARD OF AN ARMED DEPUTY, BUT EACH WAS SEPARATELY
QUIZZED FOR AN HOUR IN A FRONT ROOM.  PETITIONER WAS QUESTIONED SOLELY
BY THE COUNTY ATTORNEY, THOUGH SIX OTHER MEN, SOME OF WHOM WERE ARMED,
WERE PRESENT.  (FN3)  PETITIONER WAS BAREFOOT; HIS SHOES HAD BEEN
SEIZED AS EVIDENCE IN THE CASE, AND THERE WERE NO SHOES AT THE JAIL
LARGE ENOUGH TO FIT HIM.  HE WORE THE SAME COVERALLS IN WHICH HE WAS
ARRESTED.  THE COUNTY ATTORNEY FIRST IDENTIFIED EACH MAN IN THE ROOM,
ASSURED PETITIONER THAT NO THREATS AND NO PROMISES WOULD BE MADE,
"EXPLAINED TO HIM HIS RIGHTS," AND TOLD HIM TO TELL THE TRUTH.  NO
FORCE WAS USED OR THREATENED AGAINST EITHER PRISONER.  WHILE
PETITIONER'S STATEMENT WAS NEVER TENDERED IN EVIDENCE AT THE TRIAL, IT
WAS FILED WITH THE UNITED STATES DISTRICT COURT IN THE HABEAS
PROCEEDING AS PROOF OF HIS COMPOSURE ON THE VERY DAY OF HIS ARREST. 
THE STATEMENT INCLUDED PETITIONER'S STOUT DENIAL OF ANY RESPONSIBILITY
FOR THE MURDER, AND A DETAILED STORY DESIGNED TO INCRIMINATE COOPER, A
YOUNG AND BACKWARD BOY CALLED "BABY JOHN."  (FN4)  PETITIONER CLAIMED
TO HAVE RETURNED TO THE STORE WITH COOPER A SECOND TIME THE NIGHT
BEFORE, AND TO HAVE WAITED OUTSIDE WHILE COOPER ENTERED THE STORE TO
BUY BEER.  UPON HEARING SCREAMS, PETITIONER SAID HE RUSHED INSIDE,
FOUND COOPER HOLDING A KNIFE OVER THE WOMAN, CUT HIS HAND TRYING TO
SEIZE THE KNIFE FROM COOPER, AND THEN RAN BACK TO THE BARRACKS, LEAVING
COOPER WITH THE WOMAN.  HE ILLUSTRATED THE STORY IN SOME DETAIL BY
TRACING HIS MOVEMENTS WITH CRAYONS ON A DIAGRAM OF THE MISCOVICH
STORE. 

AT 9 P.M., THE COCHISE COUNTY UNDER-SHERIFF TOOK PETITIONER TO A
HOSPITAL WHERE HIS HAND WAS TREATED, AND AT 10 P.M. LEFT HIM AT THE
COUNTY JAIL.  LATER THE SHERIFF STOPPED BY PETITIONER'S CELL, BUT
NOTHING WAS SAID ASIDE FROM THE SHERIFF'S INQUIRY AS TO "HOW HE WAS
FEELING." 

AT 11:30 A.M. THE NEXT MORNING, WEDNESDAY, MARCH 18, THE SHERIFF
BROUGHT PETITIONER BEFORE THE LOWELL JUSTICE COURT FOR PRELIMINARY
EXAMINATION.  PETITIONER WAS BAREFOOT, AND REMAINED SO UNTIL THE
SHERIFF BOUGHT HIM A PAIR OF SHOES.  PRIOR TO LEAVING THE JAIL FOR
COURT, THE SHERIFF GAVE PETITIONER A PACK OF CIGARETTES.  UPON FURTHER
INQUIRY AS TO HOW HE WAS FEELING, PETITIONER COMPLAINED OF HIS HAND
INJURY, AND THE SHERIFF SAID HE WOULD SEE THAT IT WAS DRESSED AGAIN. 

WHEN PETITIONER ARRIVED AT THE COURT, THREE OTHER MEN WERE CONDUCTING
BUSINESS WITH THE JUSTICE OF THE PEACE, DELAYING PETITIONER'S HEARING
FOR FIVE MINUTES UNTIL THEY FINISHED AND DEPARTED.  THEN, IN THE
PRESENCE OF THE SHERIFF, A DEPUTY SHERIFF, AND A FEMALE SECRETARY,
JUSTICE OF THE PEACE FRAZIER READ THE COMPLAINT TO PETITIONER, ADVISED
HIM OF HIS RIGHTS TO PRELIMINARY HEARING AND TO COUNSEL, (FN5) TOLD HIM
THE HEARING COULD BE WAIVED, AND INSTRUCTED HIM THAT HE COULD PLEAD
GUILTY OR NOT GUILTY AS HE CHOSE, BUT THAT A GUILTY PLEA WOULD
AUTOMATICALLY WAIVE THE PRELIMINARY.  PETITIONER IMMEDIATELY REPLIED
WITH THE ORAL CONFESSION IN ISSUE HERE:  "I AM GUILTY.  I DON'T NEED
ANY LAWYER.  I KILLED THE WOMAN."  JUDGE FRAZIER ASKED IF THE MURDER
WAS COMMITTED WITH AN AXE.  PETITIONER SAID, "NO.  I KILLED HER WITH A
KNIFE." 

IMMEDIATELY THEREAFTER, THE SHERIFF AGAIN TOOK PETITIONER TO THE HOME
OF THE COUNTY ATTORNEY, WHERE A DETAILED CONFESSION WAS MADE IN THE
PRESENCE OF THE COUNTY ATTORNEY, HIS SECRETARY, THE SHERIFF, AND A
DEPUTY SHERIFF.  JUST AS HE HAD THE NIGHT BEFORE, THE COUNTY ATTORNEY
IDENTIFIED THOSE PRESENT AND TOLD PETITIONER THAT NO THREATS OR
PROMISES WOULD BE MADE.  HE ALSO WARNED PETITIONER THAT THE SECRETARY
WOULD RECORD EVERYTHING SAID, AND CONCLUDED, "YOU DON'T HAVE TO TALK TO
ME IF YOU DON'T WANT TO, BUT YOU CAN, IF YOU WILL, TELL ME IN YOUR OWN
WORDS, IN YOUR OWN FREE WILL, JUST WHAT TOOK PLACE OUT AT KANSAS
SETTLEMENT."  LATER IN THE AFTERNOON, AFTER HIS RETURN TO THE JAIL,
PETITIONER WAS TAKEN DOWNSTAIRS TO THE COUNTY ATTORNEY'S COURTHOUSE
OFFICE, WHERE IN THE PRESENCE OF FIVE PEOPLE (FN6) HE READ THROUGH AND
SIGNED THE TYPED TRANSCRIPT OF HIS CONFESSION AT THE COUNTY ATTORNEY'S
HOME.   EITHER THE NEXT DAY, THURSDAY, MARCH 19, OR ELSE FRIDAY, MARCH
20 (THE RECORD BEING INCONCLUSIVE), A NEWSPAPER REPORTER VISITED
PETITIONER IN JAIL.  AT THE TRIAL HE TESTIFIED PETITIONER SEEMED
NERVOUS AND AFRAID.  PETITIONER INDICATED THAT HE'D BEEN "ROUGHED UP"
AND THAT THE SHERIFF HAD SAVED HIS LIFE.  AT THE REPORTER'S REQUEST, HE
POSED FOR A PICTURE WITH THE SHERIFF.  PETITIONER ASKED THE SHERIFF ON
THURSDAY TO BE MOVED TO A PART OF THE JAIL WHERE HE COULD BE BY
HIMSELF, AND THE SHERIFF SAID HE WOULD TRY TO ARRANGE IT.  ON THE SAME
DAY, THE SHERIFF TOOK PETITIONER TO A DOCTOR FOR ADDITIONAL TREATMENT
OF HIS HAND. 

THE THIRD AND LAST CONFESSION WAS TAKEN DOWN ON FRIDAY, MARCH 20, IN
THE COUNTY ATTORNEY'S OFFICE IN THE PRESENCE OF SEVEN MEN, INCLUDING A
DEPUTY UNITED STATES MARSHAL.  (FN7)  AFTER THE SAME PRELIMINARY
PRECAUTIONS AS PRECEDED PETITIONER'S STATEMENTS TUESDAY NIGHT AND
WEDNESDAY AFTERNOON, THE COUNTY ATTORNEY OBTAINED A DETAILED
CONFESSION.  SEVERAL DAYS LATER, ON APRIL 1, THE MARSHAL MET ALONE WITH
PETITIONER AND HAD HIM READ THE TRANSCRIPT OF THIS LAST CONFESSION,
TELLING HIM TO INITIAL THE BOTTOM OF EACH PAGE IF, AND ONLY IF, THE
MATERIAL THEREON WAS TRUE.  AFTER AN HOUR'S READING, PETITIONER
INITIALED ALL THE PAGES. 

THE WRITTEN CONFESSIONS, SIGNED ON THE 18TH AND THE 1ST, WERE FOUND
"PROCURED BY THREAT OF LYNCH" AND DECLARED INVOLUNTARY BY THE TRIAL
JUDGE AFTER HIS PRELIMINARY INQUIRY.  ALTHOUGH THE ORAL CONFESSION
BEFORE THE JUSTICE OF THE PEACE WAS MADE BETWEEN THE TIME OF THE
ROPINGS AND THE WRITTEN CONFESSIONS, THE TRIAL JUDGE MADE AN INITIAL
DETERMINATION THAT IT WAS VOLUNTARY.  HE JUSTIFIED THIS SEEMING
INCONGRUITY ON THE BASIS OF THE DIFFERENT CIRCUMSTANCES UNDER WHICH THE
ORAL STATEMENT WAS MADE, NAMELY, THE JUDICIAL SURROUNDINGS AND THE
PRESENCE OF THE SHERIFF WITH ONLY ONE OTHER DEPUTY, THE SHERIFF BEING
"THE VERY MAN WHO HAD PROTECTED PETITIONER." 

       III. 

DEPLORABLE AS THESE ROPINGS ARE TO THE SPIRIT OF A CIVILIZED
ADMINISTRATION OF JUSTICE, THE UNDISPUTED FACTS BEFORE US DO NOT SHOW
THAT PETITIONER'S ORAL STATEMENT WAS A PRODUCT OF FEAR ENGENDERED BY
THEM.  ARIZONA'S DETERMINATION THAT THE WRITTEN CONFESSIONS WERE
INVOLUNTARY CANNOT CONTROL THE SEPARATE CONSTITUTIONAL INQUIRY POSED BY
THE CHARACTER OF THE ORAL CONFESSION.  AND SINCE OURS IS TO BE AN
INDEPENDENT RESOLUTION OF THE ISSUE OF COERCION, THE RANGE OF OUR
INQUIRY IS NOT LIMITED TO THOSE FACTORS WHICH DIFFERENTIATE THE ORAL
FROM THE WRITTEN CONFESSIONS.  THE INQUIRY TO BE MADE HERE, PRIMARY IN
BOTH TIME AND LOGIC, IS THE VOLUNTARINESS OF THE ORAL CONFESSION, WHICH
WAS ADMITTED INTO EVIDENCE.  CONSEQUENTLY WE DO NOT CONSIDER THE
SUBSEQUENT CONFESSIONS. 

COERCION HERE IS POSITED SOLELY UPON THE ROPING INCIDENTS.  THERE IS
NO CLAIM AND NO EVIDENCE OF PHYSICAL BEATING, AS IN BROWN V.
MISSISSIPPI, 297 U.S. 278 (1936); OF CONTINUOUS RELAY QUESTIONING, AS
IN WATTS V. INDIANA, 338 U.S. 49 (1949); OF INCOMMUNICADO DETENTION, AS
IN FIKES V. ALABAMA, 352 U.S. 191 (1957); OR OF PSYCHIATRIC INDUCEMENT,
AS IN LEYRA V. DENNO, 347 U.S. 556 (1954).  PETITIONER IS NEITHER OF
TENDER AGE, AS WAS THE ACCUSED IN HALEY V. OHIO, 332 U.S. 596 (1948),
NOR OF SUBNORMAL INTELLIGENCE, AS WAS THE DEFENDANT IN FIKES V.
ALABAMA, SUPRA.  NOR, IN VIEW OF HIS EXTENSIVE CRIMINAL RECORD, CAN HE
BE THOUGHT AN IMPRESSIONABLE STRANGER TO THE PROCESSES OF LAW. 

THE 20-HOUR INTERVAL BETWEEN THE TIME OF THE ROPINGS AND PETITIONER'S
ORAL CONFESSION WAS DEVOID OF ALL COERCIVE INFLUENCES OTHER THAN THE
SIGHT OF THE VICTIM'S BODY.  (FN8)  NO THREATS WERE MADE, NO PROMISES
OFFERED, NO FORCE USED, AND NO INTIMATION OF MOB ACTION EXISTENT. 
PETITIONER'S OWN ACTIVITY DURING THE CRUCIAL 20 HOURS IS ELOQUENT
REBUTTAL OF THE CONTENTION THAT HE WAS A MAN DOMINATED BY FEAR.  AT THE
LOGICAL HEIGHT OF OPPRESSION, DURING THE ROPINGS THEMSELVES, PETITIONER
STOUTLY DENIED THE OFFENSE AND ATTEMPTED TO PUT THE POLICE ON THE TRAIL
OF COOPER.  THAT VERY EVENING HE REITERATED HIS POSITION IN A DETAILED
STORY OF COOPER'S GUILT AND HIS OWN INNOCENCE, NOTWITHSTANDING COOPER'S
PRESENCE WITH HIM IN THE SAME HOUSE.  EVEN THOUGH PETITIONER APPEARED
APPREHENSIVE AND WORRIED TO A NEWSPAPERMAN TWO OR THREE DAYS AFTER THE
ORAL STATEMENT, HIS DEMEANOR BOTH AT THE COUNTY ATTORNEY'S HOME THE
NIGHT OF HIS ARREST AND BEFORE THE JUSTICE COURT THE NEXT MORNING
BESPOKE COMPLETE VOLUNTARINESS TO OTHER WITNESSES, INCLUDING JUDGE
FRAZIER.  NOTHING IN THE UNDISPUTED RECORD SERIOUSLY SUBSTANTIATES THE
CONTENTION THAT A FEAR ENGENDERED BY THE ROPINGS OVERBORE PETITIONER'S
FREE WILL AT THE TIME HE APPEARED IN THE JUSTICE COURT.  HIS STATEMENT
APPEARS TO BE THE SPONTANEOUS EXCLAMATION OF A GUILTY CONSCIENCE. 

PETITIONER RELIES HEAVILY ON THE TESTIMONY OF THE STATE PATROLMAN WHO
WAS PRESENT AT THE FIRST ROPING.  HE TESTIFIED THAT WHEN PETITIONER WAS
FIRST ROPED, THE SHERIFF SAID, "WILL YOU TELL THE TRUTH, OR I WILL LET
THEM GO AHEAD AND DO THIS."  PETITIONER ARGUES THAT THIS TESTIMONY
COMPLETELY NEGATES THE SHERIFF'S ROLE AS PETITIONER'S "PROTECTOR,"
ELIMINATING ONE OF THE TWO FACTORS BY WHICH THE TRIAL JUDGE
DISTINGUISHED THE ORAL FROM THE OTHER CONFESSIONS.  THE SHERIFF,
HOWEVER, EXPRESSLY DENIED MAKING ANY SUCH STATEMENT, AND ALL OTHER
WITNESSES OF THE FIRST ROPING AGREED THAT NO SUCH THREAT EVER WAS
UTTERED.  WHATEVER THE MERITS OF THIS DISPUTE, OUR INQUIRY CLEARLY IS
LIMITED TO A STUDY OF THE UNDISPUTED PORTIONS OF THE RECORD.  "THERE
HAS BEEN COMPLETE AGREEMENT THAT ANY CONFLICT IN TESTIMONY AS TO WHAT
ACTUALLY LED TO A CONTESTED CONFESSION IS NOT THIS COURT'S CONCERN. 
SUCH CONFLICT COMES HERE AUTHORITATIVELY RESOLVED AGAINST PETITIONER BY
THE STATE'S ADJUDICATION."  WATTS V. INDIANA, 338 U.S. 49, 51-52
(1949).  (FN9)  TIME AND AGAIN WE HAVE REFUSED TO CONSIDER DISPUTED
FACTS WHEN DETERMINING THE ISSUE OF COERCION.  SEE GALLEGOS V.
NEBRASKA, 342 U.S. 55, 60-61 (1951); HALEY V. OHIO, 332 U.S. 596, 597
598 (1948); WARD V. TEXAS, 316 U.S. 547 (1942).  THE RATIONALE BEHIND
SUCH EXCLUSION, OF COURSE, LIES IN THE SUPERIOR OPPORTUNITY OF TRIAL
COURT AND JURY TO OBSERVE THE WITNESSES AND WEIGH THE FLEETING
INTANGIBLES WHICH MAY INDICATE TRUTH OR FALSEHOOD.  WE ABIDE BY THE
WISDOM OF THAT REASONING. 

                 IV. 

PETITIONER HAS AN ALTERNATIVE PRAYER THAT HIS CASE BE REMANDED TO THE
DISTRICT COURT FOR A PLENARY HEARING ON THE ISSUE OF COERCION.  THERE
IS NO MERIT, HOWEVER, TO HIS CONTENTION THAT THE DISTRICT COURT ERRED
IN DENYING THE WRIT ON THE BASIS OF THE RECORD WITHOUT A FULL HEARING. 
THE GRANTING OF A HEARING IS WITHIN THE DISCRETION OF THE DISTRICT
COURT, BROWN V. ALLEN, 344 U.S. 443, 463-465 (1953), AND NO ABUSE OF
THAT DISCRETION APPEARS HERE. 

PETITIONER ALSO URGES THAT THE DISTRICT COURT ERRED IN CONSIDERING
THE TRANSCRIPT OF HIS INTERROGATION IN THE COUNTY ATTORNEY'S HOME AFTER
HIS ARREST.  AS STATED ABOVE, THAT TRANSCRIPT NEVER WAS MADE PART OF
THE RECORD IN THE CASE.  THE STATE, HOWEVER, FILED IT AS AN AFFIDAVIT
BEFORE THE DISTRICT COURT.  PETITIONER ASSERTS ERROR BECAUSE, IN THE
ABSENCE OF ANY HEARING, HE HAD NO OPPORTUNITY TO REBUT THE AFFIDAVIT. 
IT DOES NOT APPEAR, HOWEVER, THAT PETITIONER MADE ANY OBJECTION IN THE
DISTRICT COURT, NOR DID HE FILE ANY COUNTER-AFFIDAVIT.  MOREOVER, THE
SUBSTANCE OF THE TRANSCRIPT - PETITIONER'S DENIAL OF GUILT AND ATTEMPT
TO IMPLICATE COOPER JUST THREE HOURS AFTER THE ROPINGS - APPEARS AT
OTHER PLACES IN THE RECORD.  WE FAIL TO SEE HOW PREJUDICE COULD HAVE
RESULTED.  AFFIRMED. 

FN1  THE STATE CONTENDS PRELIMINARILY THAT PETITIONER FAILED TO
EXHAUST HIS STATE REMEDY BEFORE SEEKING HABEAS IN THE FEDERAL COURTS,
BECAUSE HIS APPLICATION IN THIS COURT FOR CERTIORARI TO THE STATE COURT
WAS NOT TIMELY.  THE NORMAL RULE THAT CERTIORARI MUST BE APPLIED FOR
HERE AFTER A STATE CONVICTION BEFORE HABEAS IS SOUGHT IN THE DISTRICT
COURT, DARR V. BURFORD, 339 U.S. 200 (1950), IS NOT INFLEXIBLE,
HOWEVER, AND IN SPECIAL CIRCUMSTANCES NEED NOT BE COMPLIED WITH.  DARR
V. BURFORD, SUPRA, AT 210.  "WHETHER SUCH CIRCUMSTANCES EXIST CALLS FOR
A FACTUAL APPRAISAL BY THE DISTRICT COURT IN EACH SPECIAL SITUATION. 
DETERMINATION OF THIS ISSUE, LIKE OTHERS, IS LARGELY LEFT TO THE TRIAL
COURTS SUBJECT TO APPROPRIATE REVIEW BY THE COURTS OF APPEALS." 
FRISBIE V. COLLINS, 342 U.S. 519, 521 (1952).  PETITIONER'S FAILURE TO
TIMELY APPLY FOR CERTIORARI WAS NOTED BY THE DISTRICT COURT IN THIS
CASE, BUT EXPRESSLY WAS STATED NOT TO BE THE BASIS FOR ITS DENIAL OF
HABEAS.  SINCE THAT COURT AND THE COURT OF APPEALS CONSIDERED
PETITIONER'S APPLICATION ON THE MERITS, WE ARE NOT INCLINED AT THIS
LATE DATE TO CONSIDER THE PROCEDURAL DEFECT A FATAL ERROR. 

FN2  "AN OFFICER WHO HAS ARRESTED A PERSON WITHOUT A WARRANT SHALL
WITHOUT UNNECESSARY DELAY TAKE THE PERSON ARRESTED BEFORE THE NEAREST
OR MOST ACCESSIBLE MAGISTRATE IN THE COUNTY IN WHICH THE ARREST OCCURS,
AND SHALL MAKE BEFORE THE MAGISTRATE A COMPLAINT, WHICH SHALL SET FORTH
THE FACTS SHOWING THE OFFENSE FOR WHICH THE PERSON WAS ARRESTED." 
ARIZ.  REV. STAT. ANN., 1956, SEC. 13-1418. 

FN3  THE SHERIFF, THE UNDER-SHERIFF, A COURT REPORTER, A POLICE
PHOTOGRAPHER, AND TWO COUNTY ATTORNEY'S DEPUTIES. 

FN4  A YOUNG MOTHER LIVING IN THE BARRACKS WHO SAT UP ALL MONDAY
NIGHT WITH HER SICK CHILD COMPLETELY DISCREDITED PETITIONER'S STORY BY
HER UNSHAKEN TESTIMONY THAT COOPER NEVER LEFT THE BARRACKS AGAIN AFTER
RETURNING WITH PETITIONER ABOUT 8:30 P.M. 

FN5  OUT OF THE JURY'S PRESENCE DURING THE INITIAL INQUIRY OF THE
TRIAL COURT INTO THE COERCION ISSUE, JUDGE FRAZIER TESTIFIED THAT HE
TOLD PETITIONER THE SUPERIOR COURT WOULD APPOINT AN ATTORNEY FOR HIM,
BUT THAT HE SAID NOTHING ABOUT APPOINTING AN ATTORNEY HIMSELF FOR THE
PRELIMINARY EXAMINATION IN THE JUSTICE COURT.  SUBSEQUENTLY, TESTIFYING
BEFORE THE JURY, HE STATED THAT PETITIONER WAS TOLD OF A "RIGHT TO
COUNSEL BEFORE HIS PRELIMINARY IN JUSTICE COURT." 

FN6  THE SHERIFF, TWO DEPUTY SHERIFFS, A COUNTY ATTORNEY'S DEPUTY,
AND THE COUNTY ATTORNEY'S SECRETARY. 

FN7  OTHERS PRESENT WERE THE UNDER-SHERIFF, A DEPUTY SHERIFF, THE
COUNTY ATTORNEY, TWO COUNTY ATTORNEY'S DEPUTIES, AND A COURT REPORTER. 

FN8  UNLIKE MANY CASES WHERE THIS COURT HAS FOUND COERCION, THERE
APPARENTLY WAS NO FAILURE HERE TO COMPLY WITH THE STATE STATUTE
REQUIRING THAT A PRISONER BE TAKEN BEFORE A MAGISTRATE WITHOUT
UNNECESSARY DELAY AFTER THE ARREST.  CONTRAST, E.G., FIKES V. ALABAMA,
352 U.S. 191 (1957); WATTS V. INDIANA, 338 U.S. 49 (1949); MALINSKI V.
NEW YORK, 324 U.S. 401 (1945); WARD V. TEXAS, 316 U.S. 547 (1942).  THE
ARIZONA STATUTE, SEE NOTE 2, SUPRA, WAS CONSTRUED IN STATE V. JOHNSON,
69 ARIZ. 203, 211 P.2D 469, WHERE THE ACCUSED APPARENTLY WAS NOT TAKEN
BEFORE A MAGISTRATE UNTIL THE MORNING FOLLOWING HIS 5 P.M. ARREST. 

FN9  THE "STATE ADJUDICATION" UPON WHICH THIS RULE TURNS IS THAT OF
THE TRIAL JUDGE IN THIS CASE.  WHILE THE GENERAL VERDICT OF GUILTY IS
NOT INSTRUCTIVE HERE AS TO THE JURY'S VIEW ON THE ISSUE OF COERCION,
THE JUDGE MADE AN INITIAL DETERMINATION OF VOLUNTARINESS BEFORE
SUBMITTING THE CONFESSION TO THE JURY.  THAT PRELIMINARY FINDING
OCCURRED PRIOR TO THE HIGHWAY PATROLMAN'S TESTIMONY, BUT A MOTION FOR
MISTRIAL BY DEFENSE COUNSEL IMMEDIATELY AFTER THE CONFLICT AROSE WAS
DENIED BEFORE THE CASE WENT TO THE JURY.  THEREFORE, WE NEED NOT DECIDE
WHETHER THE MERE FACT OF CONVICTION, ABSENT A MORE SPECIFIC
ADJUDICATION OF VOLUNTARINESS, WOULD SUFFICE TO INVOKE THE RULE
FORECLOSING ASSESSMENT OF THE DISPUTED FACTS. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR.
JUSTICE BRENNAN DISSENT. 
..END :












UNITED STATES V. CORES 356 U.S. 405 


NO. 455.  ARGUED MARCH 13, 1958 - DECIDED MAY 19, 1958 - REVERSED AND
REMANDED. 


AN ALIEN CREWMAN WHO WILLFULLY REMAINS IN THE UNITED STATES IN EXCESS
OF THE 29 DAYS ALLOWED BY HIS CONDITIONAL LANDING PERMIT, IN VIOLATION
OF SEC. 252(C) OF THE IMMIGRATION AND NATIONALITY ACT, IS GUILTY OF A
CONTINUING OFFENSE WHICH MAY BE PROSECUTED IN ANY DISTRICT WHERE HE IS
FOUND, EVEN THOUGH IT IS NOT THE DISTRICT WHERE HE WAS PRESENT WHEN HIS
PERMIT EXPIRED.  PP. 405-410. 

UNITED STATES V. CORES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE SOLE ISSUE IN THIS APPEAL IS WHETHER AN ALIEN CREWMAN WHO
WILLFULLY REMAINS IN THE UNITED STATES IN EXCESS OF THE 29 DAYS ALLOWED
BY HIS CONDITIONAL LANDING PERMIT, IN VIOLATION OF SEC. 252(C) OF THE
IMMIGRATION AND NATIONALITY ACT, (FN1) IS GUILTY OF A CONTINUING
OFFENSE WHICH MAY BE PROSECUTED IN THE DISTRICT WHERE HE IS FOUND. 
DISCOVERING THAT APPELLEE'S PERMIT HAD EXPIRED BEFORE HE ENTERED THE
DISTRICT WHERE HE WAS APPREHENDED AND WHERE THE PROSECUTION WAS BEGUN,
THE DISTRICT COURT DISMISSED THE CRIMINAL INFORMATION, HOLDING THAT A
VIOLATION OF SEC. 252(C) WAS NOT A CONTINUING CRIME.  THE GOVERNMENT
BROUGHT DIRECT APPEAL, 18 U.S.C. SEC. 3731, AND WE NOTED PROBABLE
JURISDICTION.  355 U.S. 866 (1957).  SINCE WE CONCLUDE THAT THE
DISTRICT COURT WAS IN ERROR, THE JUDGMENT IS REVERSED AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS. 

THE INFORMATION, FILED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT, CHARGED THAT APPELLEE ENTERED THE UNITED
STATES AT PHILADELPHIA ON APRIL 27, 1955, AND THAT 29 DAYS LATER, AT
THE EXPIRATION OF HIS CONDITIONAL LANDING PERMIT, HE "DID WILFULLY AND
KNOWINGLY REMAIN IN THE UNITED STATES, TO WIT:  BETHEL, CONNECTICUT,"
IN VIOLATION OF SEC. 252(C) OF THE IMMIGRATION AND NATIONALITY ACT.  A
PLEA OF GUILTY WAS ENTERED, BUT A GOVERNMENT ATTORNEY INFORMED THE
COURT PRIOR TO SENTENCING THAT APPELLEE WAS NOT IN CONNECTICUT AT THE
EXPIRATION OF HIS PERMIT AS CHARGED IN THE INFORMATION, BUT THAT IN
FACT HE CAME TO CONNECTICUT ONLY AFTER SPENDING ABOUT A YEAR IN NEW
YORK.  THE JUDGE PERMITTED WITHDRAWAL OF THE GUILTY PLEA AND DISMISSED
THE CASE.  HE CITED AN EARLIER DECISION OF THE SAME COURT HOLDING THAT
SEC. 252(C) DID NOT DEFINE A CONTINUING CRIME, UNITED STATES V.
TAVARES, NO. 9407 CRIM., MAY 6, 1957, AND INDICATED THAT THE
INFORMATION WAS BROUGHT IN AN IMPROPER DISTRICT SINCE APPELLEE WAS NOT
IN CONNECTICUT AT THE TIME HIS PERMIT EXPIRED.  (FN2) 

THE CONSTITUTION MAKES IT CLEAR THAT DETERMINATION OF PROPER VENUE IN
A CRIMINAL CASE REQUIRES DETERMINATION OF WHERE THE CRIME WAS
COMMITTED.  (FN3)  THIS PRINCIPLE IS REFLECTED IN NUMEROUS STATUTORY
ENACTMENTS, INCLUDING RULE 18, FED. RULES CRIM. PROC., WHICH PROVIDES
THAT EXCEPT AS OTHERWISE PERMITTED, "THE PROSECUTION SHALL BE HAD IN A
DISTRICT IN WHICH THE OFFENSE WAS COMMITTED ...  ."  IN ASCERTAINING
THIS LOCALITY WE ARE MINDFUL THAT QUESTIONS OF VENUE "RAISE DEEP ISSUES
OF PUBLIC POLICY IN THE LIGHT OF WHICH LEGISLATION MUST BE CONSTRUED." 
UNITED STATES V. JOHNSON, 323 U.S. 273, 276 (1944).  THE PROVISION FOR
TRIAL IN THE VICINITY OF THE CRIME IS A SAFEGUARD AGAINST THE
UNFAIRNESS AND HARDSHIP INVOLVED WHEN AN ACCUSED IS PROSECUTED IN A
REMOTE PLACE.  PROVIDED ITS LANGUAGE PERMITS, THE ACT IN QUESTION
SHOULD BE GIVEN THAT CONSTRUCTION WHICH WILL RESPECT SUCH
CONSIDERATIONS. 

UNLIKE SOME STATUTORY OFFENSES, (FN4) THERE IS AN ABSENCE HERE OF ANY
SPECIFIC PROVISION FIXING VENUE, SAVE THE GENERAL LANGUAGE OF THE ACT
PROVIDING FOR VENUE "AT ANY PLACE IN THE UNITED STATES AT WHICH THE
VIOLATION MAY OCCUR  ...  ."  (FN5)  IN SUCH CASES THE COURT MUST BASE
ITS DETERMINATION ON "THE NATURE OF THE CRIME ALLEGED AND THE LOCATION
OF THE ACT OR ACTS CONSTITUTING IT," UNITED STATES V. ANDERSON, 328
U.S. 699, 703 (1946), AND IF THE CONGRESS IS FOUND TO HAVE CREATED A
CONTINUING OFFENSE, "THE LOCALITY OF THE CRIME SHALL EXTEND OVER THE
WHOLE AREA THROUGH WHICH FORCE PROPELLED BY AN OFFENDER OPERATES." 
UNITED STATES V. JOHNSON, SUPRA, AT 275. 

THE UNITED STATES IN EXCESS OF THE NUMBER OF DAYS ALLOWED."  THE
CONDUCT PROSCRIBED IS THE AFFIRMATIVE ACT OF WILLFULLY REMAINING, AND
THE CRUCIAL WORD "REMAINS" PERMITS NO CONNOTATION OTHER THAN CONTINUING
PRESENCE.  NOR DOES THE SECTION NECESSARILY PERTAIN TO ANY PARTICULAR
LOCALITY, SUCH AS THE PLACE OF ENTRY, FOR THE ACT BROADLY EXTENDS TO
WILLFULLY REMAINING "IN THE UNITED STATES."  (FN6)  APPELLEE URGES,
HOWEVER, THAT THE OFFENSE IS COMPLETED THE MOMENT THE PERMIT EXPIRES,
AND THAT EVEN IF THE ALIEN REMAINS THEREAFTER, HE NO LONGER COMMITS THE
OFFENSE.  IT IS TRUE THAT REMAINING AT THE INSTANT OF EXPIRATION
SATISFIES THE DEFINITION OF THE CRIME, BUT IT DOES NOT EXHAUST IT.  SEE
UNITED STATES V. KISSEL, 218 U.S. 601, 607 (1910).  IT SEEMS
INCONGRUOUS TO SAY THAT WHILE THE ALIEN "WILLFULLY REMAINS" ON THE 29TH
DAY WHEN HIS PERMIT EXPIRES, HE NO LONGER DOES SO ON THE 30TH, THOUGH
STILL PHYSICALLY PRESENT IN THE COUNTRY.  GIVEN THE ELEMENT OF
WILLFULNESS, WE BELIEVE AN ALIEN "REMAINS," IN THE CONTEMPLATION OF THE
STATUTE, UNTIL HE PHYSICALLY LEAVES THE UNITED STATES.  THE CRIME
ACHIEVES NO FINALITY UNTIL SUCH TIME.  SINCE AN OFFENSE COMMITTED IN
MORE THAN ONE DISTRICT "MAY BE INQUIRED OF AND PROSECUTED IN ANY
DISTRICT IN WHICH SUCH OFFENSE WAS  ...  CONTINUED," 18 U.S.C. SEC.
3237, VENUE FOR SEC. 252(C) LIES IN ANY DISTRICT WHERE THE CREWMAN
WILLFULLY REMAINS AFTER THE PERMIT EXPIRES.  APPELLEE ENTERED
CONNECTICUT AND WAS FOUND THERE, SO THAT DISTRICT HAS VENUE FOR THE
PROSECUTION. 

THE LEGISLATIVE HISTORY IS NOT INCONSISTENT WITH THIS INTERPRETATION
OF THE STATUTE.  AFTER A THOROUGH INVESTIGATION OF OUR IMMIGRATION LAWS
COMPLETED SOME TWO YEARS PRIOR TO THE ENACTMENT OF SEC. 252(C), THE
SENATE COMMITTEE ON THE JUDICIARY REPORTED, "THE PROBLEMS RELATING TO
SEAMEN ARE LARGELY CREATED BY THOSE WHO DESERT THEIR SHIPS, REMAIN HERE
ILLEGALLY BEYOND THE TIME GRANTED THEM TO STAY, AND BECOME LOST IN THE
GENERAL POPULACE OF THE COUNTRY."  S. REP. NO. 1515, 81ST CONG., 2D
SESS. 550.  THE TRACING OF SUCH PERSONS IS COMPLICATED BY THE
OBSCURATION WORKED BOTH BY THEIR OWN MOVEMENT AND BY THE PASSAGE OF
TIME.  IN THIS ATMOSPHERE THE CONGRESS SOUGHT TO ESTABLISH SANCTIONS
FOR ALIEN CREWMEN WHO "WILLFULLY REMAIN," THE SENATE COMMITTEE HAVING
OBSERVED THAT TRADITIONAL REMEDIES FOR THE PROBLEM WERE INADEQUATE
BECAUSE MANY CREWMEN "DO NOT HAVE THE NECESSARY DOCUMENTS TO PERMIT
DEPORTATION."  IBID.  IT IS HARDLY LIKELY THAT THE CONGRESS WOULD
CREATE THE NEW SANCTION ONLY TO STRIP IT OF MUCH OF ITS EFFECTIVENESS
BY COMPELLING TRIAL IN THE DISTRICT WHERE THE CREWMAN WAS PRESENT WHEN
HIS PERMIT EXPIRED - A PLACE WHICH MONTHS OR YEARS LATER MIGHT WELL BE
IMPOSSIBLE OF PROOF. 

MOREOVER, WE THINK IT NOT AMISS TO POINT OUT THAT THIS RESULT IS
ENTIRELY IN KEEPING WITH THE POLICY OF RELIEVING THE ACCUSED, WHERE
POSSIBLE, OF THE INCONVENIENCE INCIDENT TO PROSECUTION IN A DISTRICT
FAR REMOVED FROM HIS RESIDENCE.  SEE HYDE V. SHINE, 199 U.S. 62, 78
(1905); JOHNSTON V. UNITED STATES, 351 U.S. 215, 224 (DISSENT)(1956). 
FORCING AN ALIEN CREWMAN TO TRIAL IN THE DISTRICT WHERE HE WAS PRESENT
AT THE EXPIRATION OF HIS PERMIT COULD ENTAIL MUCH HARDSHIP.  BY HOLDING
THE CRIME HERE TO BE A CONTINUING ONE WE MAKE A VALUABLE TOOL OF
JUSTICE AVAILABLE TO THE CREWMAN.  RULE 21(B) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE PROVIDES FOR TRANSFER OF THE PROCEEDING TO ANOTHER
DISTRICT ON MOTION OF THE DEFENDANT IF IT APPEARS THAT THE OFFENSE WAS
COMMITTED IN MORE THAN ONE DISTRICT, AND "IF THE COURT IS SATISFIED
THAT IN THE INTEREST OF JUSTICE THE PROCEEDING SHOULD BE TRANSFERRED TO
ANOTHER DISTRICT OR DIVISION IN WHICH THE COMMISSION OF THE OFFENSE IS
CHARGED."  THE RULE, WITH ITS INHERENT FLEXIBILITY, WOULD BE
INAPPLICABLE ABSENT CHARACTERIZATION OF THE OFFENSE AS CONTINUING IN
NATURE.  REVERSED AND REMANDED. 

FN1  66 STAT. 221, 8 U.S.C. SEC. 1282(C).  SUBSECTION (A) AUTHORIZES
IMMIGRATION OFFICERS TO GRANT PERMITS, ON CERTAIN CONDITIONS, ALLOWING
ALIEN CREWMEN TO LAND FOR PERIODS UP TO 29 DAYS.  SUBSECTION (B)
DETAILS PROCEDURES FOR REVOCATION OF PERMITS.  SUBSECTION (C) SETS OUT
THE CRIMINAL PENALTIES INVOLVED IN THIS CASE: 

"ANY ALIEN CREWMAN WHO WILLFULLY REMAINS IN THE UNITED STATES IN
EXCESS OF THE NUMBER OF DAYS ALLOWED IN ANY CONDITIONAL PERMIT ISSUED
UNDER SUBSECTION (A) SHALL BE GUILTY OF A MISDEMEANOR, AND UPON
CONVICTION THEREOF SHALL BE FINED NOT MORE THAN $500 OR SHALL BE
IMPRISONED FOR NOT MORE THAN SIX MONTHS, OR BOTH." 

FN2  APPELLEE SUGGESTS THAT THE INCONSISTENCY IN THE DATE OF THE
OFFENSE AS ALLEGED IN THE INFORMATION AND AS REPRESENTED BY GOVERNMENT
COUNSEL PROVIDES ADDITIONAL REASON FOR UPHOLDING THE DISMISSAL.  THIS
PHASE OF THE CASE, HOWEVER, IS NOT BEFORE US, UNITED STATES V. BORDEN
CO., 308 U.S. 188, 206-207 (1939), SO WE CONFINE OUR OPINION TO THE
POINT OF STATUTORY CONSTRUCTION WHICH CLEARLY PROMPTED THE DISMISSAL. 
ANY INCONSISTENCY MAY BE ASSERTED BY APPELLEE ON REMAND.  SEE FED.
RULES CRIM. PROC., 7(E). 

FN3  "THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL
BE BY JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID
CRIMES SHALL HAVE BEEN COMMITTED  ...  ."  U.S. CONST., ART. III, SEC.
2, CL. 3. 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED  ...  ."  U.S. CONST.,
AMEND. VI. 

FN4  SEE, E.G., 18 U.S.C. SEC. 659 (THEFT OF GOODS IN INTERSTATE
COMMERCE); 18 U.S.C. SEC. 1073 (FLIGHT TO AVOID PROSECUTION OR GIVING
TESTIMONY); 18 U.S.C. SEC. 3236 (MURDER OR MANSLAUGHTER); 18 U.S.C.
SEC. 3239 (TRANSMITTING OR MAILING THREATENING COMMUNICATIONS); 32
STAT. 847, 34 STAT. 587, 49 U.S.C. SEC. 41(1) (CERTAIN VIOLATIONS OF
INTERSTATE COMMERCE ACT).  SEE 4 BARRON, FEDERAL PRACTICE AND
PROCEDURE, SEC. 2061. 

FN5  SEC. 279, IMMIGRATION AND NATIONALITY ACT, 66 STAT. 230, 8
U.S.C. SEC. 1329. 

FN6  THE OFFENSE HERE IS UNLIKE CRIMES OF ILLEGAL ENTRY SET OUT IN
SECS. 275 AND 276 OF THE ACT.  66 STAT. 229, 8 U.S.C. SECS. 1325,
1326.  THOSE OFFENSES ARE NOT CONTINUING ONES, AS "ENTRY" IS LIMITED TO
A PARTICULAR LOCALITY AND HARDLY SUGGESTS CONTINUITY.  HENCE A SPECIFIC
VENUE PROVISION IN SEC. 279 OF THE ACT WAS REQUIRED BEFORE ILLEGAL
ENTRY CASES COULD BE PROSECUTED AT THE PLACE OF APPREHENSION.  66 STAT.
230, 8 U.S.C. SEC. 1329.  THIS REASONING UNDERLAY THE REQUEST FOR
SPECIFIC LEGISLATION BY THE IMMIGRATION AND NATURALIZATION SERVICE. 
SEE ANALYSIS OF S. 3455, 81ST CONG., PREPARED BY THE GENERAL COUNSEL OF
THE SERVICE, P. 276-2.  IN CONTRAST TO ILLEGAL ENTRY, THE SEC. 252(C)
OFFENSE OF WILLFULLY REMAINING IS CONTINUING IN NATURE.  A SPECIFIC
VENUE PROVISION WOULD BE MERE SURPLUSAGE, SINCE PROSECUTIONS MAY BE
INSTITUTED IN ANY DISTRICT WHERE THE OFFENSE HAS BEEN COMMITTED, NOT
NECESSARILY THE DISTRICT WHERE THE VIOLATION FIRST OCCURRED.  THE
ABSENCE OF SUCH PROVISION, THEREFORE, IS WITHOUT SIGNIFICANCE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THE DECISION SEEMS TO ME TO BE OUT OF HARMONY WITH THE STATUTORY
SCHEME OF VENUE WHICH CONGRESS DESIGNED FOR IMMIGRATION CASES.  WE ARE
HERE CONCERNED WITH A CRIME UNDER SEC. 252 OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 163, 220, 8 U.S.C. SEC. 1282; VIZ.
UNLAWFULLY REMAINING IN THE UNITED STATES.  SECTIONS 275 AND 276
DESCRIBE CRIMES OF UNLAWFUL ENTRY.  SECTION 279 GIVES THE DISTRICT
COURTS JURISDICTION OVER THE TRIAL OF BOTH TYPES OF CRIMES; AND AS TO
VENUE IT PROVIDES: 

"NOTWITHSTANDING ANY OTHER LAW, SUCH PROSECUTIONS OR SUITS MAY BE
INSTITUTED AT ANY PLACE IN THE UNITED STATES AT WHICH THE VIOLATION MAY
OCCUR OR AT WHICH THE PERSON CHARGED WITH A VIOLATION UNDER SECTION 275
OR 276 MAY BE APPREHENDED." 

WHEN CONGRESS WANTED TO LAY VENUE IN THE DISTRICT WHERE THE ACCUSED
WAS "APPREHENDED," IT SAID SO.  IT WOULD SEEM, THEREFORE, THAT VENUE
MAY BE LAID IN THE DISTRICT WHERE THE ALIEN WAS "APPREHENDED" ONLY IN
CASE OF THE CRIMES OF UNLAWFUL ENTRY.  ALL OTHER CRIMES ARE TO BE
PROSECUTED IN THE DISTRICT WHERE THE VIOLATION FIRST OCCURRED.  IT IS
NO ANSWER TO SAY THAT THIS CRIME IS DIFFERENT BECAUSE IT WAS
"CONTINUOUS."  SEE IN RE SNOW, 120 U.S. 274, 281.  AS DISTRICT JUDGE
SMITH SAID, THE DISTINCTION DRAWN BY SEC. 279 BETWEEN VENUE AT THE
PLACE OF VIOLATION AND VENUE AT THE PLACE OF APPREHENSION "WOULD BE
MEANINGLESS IF VIOLATIONS SUCH AS THE ONE IN ISSUE WERE REGARDED AS
CONTINUOUS."  UNITED STATES V. TAVARES, SUPRA.* 

*CONGRESS HAS MADE ITS INTENT EQUALLY CLEAR IN ANALOGOUS SITUATIONS,
SEE, E.G., 18 U.S.C. SEC. 659, WHERE THE POSSESSION OF CERTAIN STOLEN
GOODS, CERTAINLY A CONTINUING ILLEGAL STATUS SIMILAR TO REMAINING, IS
MADE A CRIME.  SECTION 659 PROVIDES IN PERTINENT PART:  "THE OFFENSE
SHALL BE DEEMED TO HAVE BEEN COMMITTED  ...  IN ANY DISTRICT IN WHICH
THE DEFENDANT MAY HAVE TAKEN OR BEEN IN POSSESSION OF THE SAID MONEY,
BAGGAGE, GOODS, OR CHATTELS." 

MOREOVER, THE CRIME IS COMPLETED WHEN THE CONDITIONAL PERMIT
EXPIRES.  ALL ELEMENTS OF THE CRIME OCCUR THEN.  NOTHING MORE REMAINS
TO BE DONE.  IT IS THEN AND THERE, CONGRESS SAYS, THAT THE CRIME IS
"COMMITTED" IN THE SENSE THAT THAT TERM IS EMPLOYED IN ART. III, SEC.
2, CL. 3 OF THE CONSTITUTION AND IN THE SIXTH AMENDMENT.    I WOULD
AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 
..END :










COUNTY OF MARIN V. UNITED STATES 356 U.S. 412 


NO. 415.  ARGUED APRIL 9, 1958 - DECIDED MAY 19, 1958 - 150 F. SUPP.
619, REVERSED AND CAUSE REMANDED. 


ASSERTING EXCLUSIVE AND PLENARY AUTHORITY UNDER SEC. 5(2)(A) OF THE
INTERSTATE COMMERCE ACT, THE INTERSTATE COMMERCE COMMISSION APPROVED A
PROPOSED TRANSACTION IN WHICH AN INTERSTATE MOTOR CARRIER WOULD
TRANSFER ITS OPERATIONS IN THE SAN FRANCISCO BAY AREA (LARGELY LOCAL
COMMUTER SERVICE) TO A NON-CARRIER SUBSIDIARY ORGANIZED FOR THAT
PURPOSE, IN EXCHANGE FOR THE CAPITAL STOCK OF THE SUBSIDIARY.  THE
ADMITTED PURPOSE OF THE TRANSACTION WAS TO ESCAPE THE RATE-MAKING
PRACTICES AND POLICIES OF THE CALIFORNIA PUBLIC UTILITIES COMMISSION,
WHICH HELD THAT THE CARRIER'S APPLICATIONS FOR INCREASES IN RATES IN
THESE LOCAL OPERATIONS SHOULD BE DETERMINED IN THE LIGHT OF TOTAL
REVENUES FROM ALL OF ITS INTRASTATE OPERATIONS IN CALIFORNIA. 
APPELLANTS SUED TO SET ASIDE THE ORDER OF THE INTERSTATE COMMERCE
COMMISSION.  HELD:  THE PROPOSED TRANSACTION IS BEYOND THE SCOPE OF THE
POWER OF THE INTERSTATE COMMERCE COMMISSION UNDER SEC. 5(2)(A).  PP.
413-420. 

(A)  THE CONGRESSIONAL PURPOSE IN THE SWEEPING REVISION OF SEC. 5 OF
THE ACT IN 1940, ENACTING SEC. 5(2)(A) IN ITS PRESENT FORM, WAS TO
FACILITATE MERGERS AND CONSOLIDATIONS IN THE NATIONAL TRANSPORTATION
SYSTEM.  PP. 416-418. 

(B)  THE PROPOSED TRANSACTION DOES NOT INVOLVE THE "ACQUISITION" OF
ANY "CARRIER" WITHIN THE MEANING OF SEC. 5(2)(A), BECAUSE THE
SUBSIDIARY IS NOT A "CARRIER."  P. 418. 

(C)  EVEN IF THE PLAN WERE VIEWED AT ITS CONSUMMATION, WHEN THE
SUBSIDIARY WOULD BECOME A "CARRIER," THE PROPOSAL CONTEMPLATES, IN
REALITY, A SPLIT-UP - SOMETHING BEYOND THE PURPOSE AND LANGUAGE OF SEC.
5(2)(A).  P. 418. 

(D)  THIS HOLDING DOES NOT CREATE A VACUUM IN REGULATION, BECAUSE THE
INTERSTATE COMMERCE COMMISSION WOULD HAVE JURISDICTION OVER THE
TRANSFER OF INTERSTATE OPERATING RIGHTS UNDER SEC. 212(B), AND THE
TRANSFER OF INTRASTATE RIGHTS WOULD BE SUBJECT TO THE APPROVAL OF THE
STATE COMMISSION, THE BODY MOST DIRECTLY CONCERNED WITH THE LOCAL
OPERATIONS.  P. 419. 

(E)  THAT IT MAY HAVE BEEN THE PRIOR ADMINISTRATIVE PRACTICE OF THE
INTERSTATE COMMERCE COMMISSION TO EXERCISE JURISDICTION UNDER SEC.
5(2)(A) IN SIMILAR CASES IS INSUFFICIENT TO OUTWEIGH THE APPARENT
CONGRESSIONAL PURPOSE AND THE CLEAR LANGUAGE OF THE STATUTE -
ESPECIALLY IN THIS DELICATE AREA WHERE THE SUSTAINING OF FEDERAL
JURISDICTION LEADS, BY STATUTE, TO THE COMPLETE OUSTER OF STATE
AUTHORITY.  P. 420. 

COUNTY OF MARIN ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

AT ISSUE HERE IS THE EXCLUSIVE AND PLENARY AUTHORITY OF THE
INTERSTATE COMMERCE COMMISSION TO APPROVE A TRANSACTION IN WHICH
PACIFIC GREYHOUND LINES, A MOTOR CARRIER SUBSIDIARY OF THE GREYHOUND
CORPORATION, (FN1) WOULD TRANSFER ITS OPERATIONS IN THE SAN FRANCISCO
BAY AREA TO GOLDEN GATE TRANSIT LINES, A SUBSIDIARY OF PACIFIC
GREYHOUND ORGANIZED BY IT FOR THAT PURPOSE.  PACIFIC GREYHOUND WOULD
RECEIVE ALL GOLDEN GATE CAPITAL STOCK IN EXCHANGE FOR THE OPERATING
RIGHTS, CERTAIN EQUIPMENT, AND AN AMOUNT IN CASH.  APPELLANTS, TWO
COUNTIES IN THE AREA AND THEIR RESPECTIVE COMMUTER ASSOCIATIONS,
OPPOSED THE TRANSACTION AND CHALLENGED THE POWER OF THE COMMISSION TO
AUTHORIZE IT, (FN2) BUT THE COMMISSION ASSERTED JURISDICTION AND, ON
CERTAIN TERMS AND CONDITIONS, APPROVED THE PLAN ON THE MERITS.  65
M.C.C. 347.  A THREE-JUDGE DISTRICT COURT, IN WHICH APPELLANTS SOUGHT
TO SET ASIDE THE ORDER, HELD THAT THE COMMISSION HAD JURISDICTION UNDER
SEC. 5(2)(A) OF THE INTERSTATE COMMERCE ACT.  (FN3)  150 F. SUPP. 619. 
IN VIEW OF THE IMPORTANCE OF THE JURISDICTIONAL QUESTION AND ITS IMPACT
ON FEDERAL-STATE RELATIONS, WE NOTED PROBABLE JURISDICTION.  355 U.S.
866 (1957).  WE CONCLUDE THAT THE PROPOSED TRANSACTION IS BEYOND THE
SCOPE OF COMMISSION POWER UNDER SEC. 5(2)(A).  (FN4) 

AT THE TIME OF THE APPLICATION, PACIFIC GREYHOUND WAS A MOTOR COMMON
CARRIER OF PASSENGERS IN SEVEN WESTERN AND SOUTHWESTERN STATES UNDER
CERTIFICATES ISSUED BY THE INTERSTATE COMMERCE COMMISSION.  IN
COMBINATION WITH MEMBERS OF THE GREYHOUND SYSTEM AND OTHER LINES, IT
PROVIDED JOINT THROUGH SERVICE TO AND FROM MORE DISTANT AREAS OF THE
COUNTRY.  IN CALIFORNIA, THE EXTENSIVE SERVICES OF PACIFIC GREYHOUND
INCLUDED THE OPERATIONS IN THE SAN FRANCISCO BAY AREA WHICH ARE
INVOLVED HERE.  THESE ROUTES ARE WITHIN 25 OR 30 MILES OF THE CITY,
EXTENDING NORTH INTO MARIN COUNTY, EAST INTO CONTRA COSTA COUNTY, AND
SOUTH ON THE PENINSULA.  MEASURED IN TERMS OF REVENUE, ONLY 5.7% OF THE
TRAFFIC IS IN INTERSTATE MOVEMENT; 94.3% IS INTRASTATE, LARGELY
COMMUTER. 

THE CORPORATE TRANSACTION FOR WHICH COMMISSION APPROVAL WAS SOUGHT
WAS CONCEIVED IN AN ENVIRONMENT OF FINANCIAL DIFFICULTIES PLAGUING THE
BAY AREA OPERATIONS.  THE SERVICE CONSISTENTLY WAS OPERATED AT A LOSS,
AND PACIFIC GREYHOUND TO SOME EXTENT BLAMED THE RATE-MAKING PRACTICES
AND POLICIES OF THE CALIFORNIA PUBLIC UTILITIES COMMISSION.  IN
PROCEEDINGS FOR COMMUTATION RATE INCREASES OVER THESE ROUTES, FOR
EXAMPLE, THE STATE COMMISSION HAD HELD THAT PACIFIC GREYHOUND'S
APPLICATIONS SHOULD BE DETERMINED IN LIGHT OF TOTAL REVENUES FROM ALL
INTRASTATE OPERATIONS IN CALIFORNIA.  PACIFIC GREYHOUND LINES, 50 CAL.
P.U.C. 650.  THIS THE COMPANY DEEMED TO BE AN UNJUSTIFIED SUBSIDIZATION
OF THE LOCAL LOSSES WITH PROFITS FROM UNRELATED OPERATIONS.  (FN5) 

THE TRANSFER IN QUESTION ADMITTEDLY WAS DESIGNED TO ESCAPE, UPON
APPROVAL OF THE INTERSTATE COMMERCE COMMISSION, THE PRACTICES AND
POLICIES OF THE STATE COMMISSION.  GOLDEN GATE WAS INCORPORATED IN
1953, BUT HAD ENGAGED IN NO BUSINESS ACTIVITY AND WAS NOT A CARRIER. 
UNDER THE AGREEMENT, ARRIVED AT EARLY IN 1954, PACIFIC GREYHOUND WOULD
TRANSFER TO GOLDEN GATE SUBSTANTIALLY ALL INTERSTATE AND INTRASTATE
OPERATING RIGHTS IN THE BAY AREA, $150,000 IN CASH, AND CERTAIN
EQUIPMENT.  (FN6)  GOLDEN GATE WOULD IN TURN ISSUE ALL OF ITS CAPITAL
STOCK TO PACIFIC GREYHOUND.  THE RESULT IS OBVIOUS:  FOR RATE-MAKING
PURPOSES BEFORE THE STATE COMMISSION, THE DEFICIT-RIDDEN LOCAL
OPERATION, AFTER THE SPLIT-UP OF OPERATING RIGHTS INTO SEPARATE
CORPORATIONS, WOULD BE FORCED TO STAND ON ITS OWN - OR COLLAPSE. 

ALTHOUGH IT DID NOT FORMALLY INTERVENE, THE STATE COMMISSION FILED
ITS VIEWS REGARDING THE TRANSACTION WITH THE INTERSTATE COMMERCE
COMMISSION.  IT WAS STATED THAT THE PROPOSED TRANSFER OF "LOCAL"
OPERATIONS WAS WHOLLY UNNECESSARY, WOULD CREATE QUESTIONABLE EXPENSE,
AND WOULD TEND TO INJECT CONFUSION INTO INTRASTATE RATE FIXING. 
FURTHER, THE STATE COMMISSION FEARED THAT GOLDEN GATE'S RESULTING
CAPITAL STRUCTURE WOULD BE OF "QUESTIONABLE SOUNDNESS." 

THE INTERSTATE COMMERCE COMMISSION CONDITIONED ITS APPROVAL OF THE
PROPOSAL ON AN INCREASE IN THE CASH CONSIDERATION TO $250,000, AFTER
THE HEARING OFFICER HAD RECOMMENDED DISAPPROVAL OF THE PLAN IN ITS
ENTIRETY. 

THE CONGRESSIONAL PURPOSE IN THE SWEEPING REVISION OF SEC. 5 OF THE
INTERSTATE COMMERCE ACT IN 1940, ENACTING SEC. 5(2)(A) IN ITS PRESENT
FORM, WAS TO FACILITATE MERGER AND CONSOLIDATION IN THE NATIONAL
TRANSPORTATION SYSTEM.  (FN7)  IN THE TRANSPORTATION ACT OF 1920 THE
CONGRESS HAD DIRECTED THE COMMISSION ITSELF TO TAKE THE INITIATIVE IN
DEVELOPING A PLAN "FOR THE CONSOLIDATION OF THE RAILWAY PROPERTIES OF
THE CONTINENTAL UNITED STATES INTO A LIMITED NUMBER OF SYSTEMS," 41
STAT. 481, BUT AFTER 20 YEARS OF TRIAL THE APPROACH APPEARED
INADEQUATE.  THE TRANSPORTATION ACT OF 1940 EXTENDED SEC. 5 TO MOTOR
AND WATER CARRIERS, AND RELIEVED THE COMMISSION OF ITS RESPONSIBILITY
TO INITIATE THE UNIFICATIONS.  "INSTEAD, IT AUTHORIZED APPROVAL BY THE
COMMISSION OF CARRIER-INITIATED, VOLUNTARY PLANS OF MERGER OR
CONSOLIDATION IF, SUBJECT TO SUCH TERMS, CONDITIONS AND MODIFICATIONS
AS THE COMMISSION MIGHT PRESCRIBE, THE PROPOSED TRANSACTIONS MET WITH
CERTAIN TESTS OF PUBLIC INTEREST, JUSTICE AND REASONABLENESS  ...  ." 
SCHWABACHER V. UNITED STATES, 334 U.S. 182, 193 (1948).  IN ORDER TO
AVOID THE DELAYS INCIDENT TO APPROVAL BY EACH STATE THROUGH WHICH A
COMPANY OPERATED, THE CONGRESS PROVIDED FOR EFFECTUATION OF COMMISSION
APPROVED PLANS "WITHOUT INVOKING ANY APPROVAL UNDER STATE AUTHORITY." 
(FN8)  IN SHORT, THE RESULT OF THE ACT WAS A CHANGE IN THE MEANS, WHILE
THE END REMAINED THE SAME.  THE VERY LANGUAGE OF THE AMENDED
"UNIFICATION SECTION" (FN9) EXPRESSES CLEARLY THE DESIRE OF THE
CONGRESS THAT THE INDUSTRY PROCEED TOWARD AN INTEGRATED NATIONAL
TRANSPORTATION SYSTEM THROUGH SUBSTANTIAL CORPORATE SIMPLIFICATION. 
SUBJECT TO APPROVAL AND AUTHORIZATION OF THE COMMISSION, SEC. 5(2)(A)
MAKES LAWFUL THE CONSOLIDATION OR MERGER OF TWO OR MORE CARRIERS; THE
PURCHASE OR LEASE OF PROPERTY, OR ACQUISITION OF CONTROL, OF ONE
CARRIER BY ANOTHER; AND THE ACQUISITION OF CONTROL OF A CARRIER BY A
NONCARRIER.  (FN10) 

IN DETERMINING WHETHER THE COMMISSION HAD JURISDICTION IN THIS CASE,
WE MUST EXAMINE THE PROPOSED TRANSACTION IN LIGHT OF THE CONGRESSIONAL
PURPOSE AND STATUTORY LANGUAGE.  THE COMMISSION AND THE COMPANIES
REGARD THE TRANSACTION AS AN "ACQUISITION" OF GOLDEN GATE BY PACIFIC
GREYHOUND, WITHIN THE LANGUAGE OF SEC. 5(2)(A) AUTHORIZING COMMISSION
APPROVAL "  ...  FOR ANY CARRIER  ...  TO ACQUIRE CONTROL OF ANOTHER
THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE."  WE THINK IT IS CLEAR
THAT THIS CONTEMPLATES AN ACQUISITION, BY ONE CARRIER, OF ANOTHER
CARRIER.  COLDEN GATE, A MERE CORPORATE SHELL WITHOUT PROPERTY OR
FUNCTION, CAN BY NO STRETCH OF THE IMAGINATION BE DEEMED A "CARRIER." 
EVEN IF WE LOOK BEYOND GOLDEN GATE'S PRESENT STATUS, HOWEVER, AND VIEW
THE PLAN AT ITS CONSUMMATION, WE FIND THAT THE ALLEGED "ACQUISITION"
AMOUNTS TO LITTLE MORE THAN A PAPER TRANSACTION.  IN REALITY THE
CARRIERS PROPOSE A SPLIT-UP - SOMETHING BEYOND THE PURPOSE AND LANGUAGE
OF SEC. 5(2)(A).  THE OPERATING RIGHTS WHICH NOW ARE SOLELY THOSE OF
PACIFIC GREYHOUND WOULD BE DIVIDED WITH GOLDEN GATE; WHERE NOW THERE IS
ONE CARRIER, THERE WOULD BE TWO.  PACIFIC GREYHOUND'S CONTROL WOULD BE
DISSIPATED AND ITS FUNCTIONS DISMEMBERED, IN THE HOPE OF ESCAPING
CERTAIN PRACTICES OF THE STATE COMMISSION. 

THERE MAY OR MAY NOT, IN FACT, BE FINANCIAL OR OPERATIONAL
JUSTIFICATION FOR THE PROPOSED TRANSACTION; THAT QUESTION IS NOT BEFORE
US.  WE CONSIDER ONLY THE APPLICABILITY OF SEC. 5(2)(A) AS A GROUND FOR
COMMISSION JURISDICTION, AND IN SO DOING THE QUESTION NARROWS TO "THE
NATURE OF THE CHANGE IN RELATIONS BETWEEN THE COMPANIES."  ALLEGHANY
CORP. V. BRESWICK & CO., 353 U.S. 151, 169 (1957).  FOR REASONS WE HAVE
STATED, THE NATURE OF THAT CHANGE HERE ELIMINATES THIS TRANSACTION FROM
THE "ACQUISITION" LANGUAGE OF SEC. 5(2)(A). 

OUR HOLDING DOES NOT CREATE A VACUUM IN REGULATION.  IN CASES WHERE
THE TRANSACTION IS NOT WITHIN SEC. 5, THE COMMISSION NEVERTHELESS MAY
ASSERT JURISDICTION OVER THE TRANSFER OF INTERSTATE OPERATING RIGHTS
UNDER SEC. 212(B) OF THE ACT.  (FN11)  ALTHOUGH THE OPERATIONS SOUGHT
TO BE TRANSFERRED HERE WERE PREDOMINANTLY SUBURBAN-COMMUTER IN NATURE,
THEY INVOLVED AT LEAST SOME TRAFFIC IN INTERSTATE MOVEMENT, SERVICED
UNDER CERTIFICATES ISSUED BY THE INTERSTATE COMMERCE COMMISSION; THE
TRANSFER OF THESE CERTIFICATES MUST BE COMMISSION-APPROVED.  SEE
ATWOOD'S TRANSPORT LINE - LEASE - JOHN A. CLARKE, 52 M.C.C. 97, 105
108, WHERE THE COMMISSION DISCUSSED THE DISTINCTION BETWEEN SEC. 5 AND
SEC. 212(B).  THE TRANSFER OF INTRASTATE RIGHTS HERE WILL, OF COURSE,
BE SUBJECT TO APPROVAL OF THE STATE COMMISSION.  FAR FROM BEING A VOID
IN REGULATION, THIS WILL INVOKE THE AUTHORITY OF THE BODY MOST DIRECTLY
CONCERNED WITH THE LOCAL OPERATIONS.  THIS IS NOT TO SAY THAT THE
INTERSTATE COMMERCE COMMISSION COULD NEVER HAVE JURISDICTION OVER THE
TRANSFER OF INTRASTATE OPERATING RIGHTS ALONG WITH THE INTERSTATE
OPERATIONS OF A CARRIER.  THE TEST IS WHETHER THE TRANSACTION COMES
WITHIN THE TERMS OF SEC. 5(2)(A), AUTHORIZING THE EXERCISE OF EXCLUSIVE
AND PLENARY JURISDICTION. 

FINALLY, WE ARE REFERRED TO CERTAIN CASES IN THE COMMISSION AS
EVIDENCE THAT PRIOR ADMINISTRATIVE PRACTICE SUPPORTS THE SUSTAINING OF
SEC. 5(2)(A) JURISDICTION HERE.  GEHLHAUS AND HOLLOBINKO - CONTROL, 60
M.C.C. 167; TAKIN - PURCHASE - TAKIN BROS. FREIGHT LINE, INC., 37
M.C.C. 626; CONSOLIDATED FREIGHTWAYS, INC. - CONTROL - CONSOLIDATED
CONVOY CO., 36 M.C.C. 358; COLUMBIA MOTOR SERVICE CO. - PURCHASE -
COLUMBIA TERMINALS CO., 35 M.C.C. 531.  WHILE THE INTERPRETATION GIVEN
A STATUTE BY THOSE CHARGED WITH ITS APPLICATION AND ENFORCEMENT IS
ENTITLED TO CONSIDERABLE WEIGHT, IT HARDLY IS CONCLUSIVE.  UNITED
STATES V. MISSOURI PACIFIC R. CO., 278 U.S. 269, 280 (1929).  THE
COMMISSION PRACTICE AS EVIDENCED BY THESE CASES IS, IN OUR OPINION,
INSUFFICIENT TO OUTWEIGH THE APPARENT CONGRESSIONAL PURPOSE AND THE
CLEAR LANGUAGE OF THE STATUTE - ESPECIALLY IN THIS DELICATE AREA WHERE
THE SUSTAINING OF FEDERAL JURISDICTION LEADS, BY STATUTE, TO THE
COMPLETE OUSTER OF STATE AUTHORITY.  (FN12) 

WHILE THE ORIGINAL APPLICATION TO THE COMMISSION FOR APPROVAL OF THE
TRANSACTION IS NOT A PART OF THE RECORD ON APPEAL, IT APPEARS FROM THE
BRIEFS THAT SUCH APPLICATION CONTAINED AN ALTERNATIVE PRAYER FOR
APPROVAL OF THE CERTIFICATE TRANSFERS UNDER SEC. 212(B).  THEREFORE,
THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  A MERGER OF PACIFIC GREYHOUND AND GREYHOUND, PENDING WHEN THE
INSTANT PROCEEDINGS WERE BEFORE THE COMMISSION, NO. MC-F-573, HAS SINCE
BEEN CONSUMMATED. 

FN2  CERTAIN DIVISIONS OF THE AMALGAMATED ASSOCIATION OF STREET,
ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, REPRESENTING
EMPLOYEES OF PACIFIC GREYHOUND, ALSO OPPOSED THE APPLICATION, AND
JOINED APPELLANTS IN SEEKING TO SET ASIDE THE COMMISSION'S ORDER IN THE
DISTRICT COURT.  HOWEVER, THE COMPLAINT WAS LATER DISMISSED AS TO THE
UNION FOR REASONS NOT MATERIAL HERE. 

FN3  SECTION 5(2)(A):  "IT SHALL BE LAWFUL, WITH THE APPROVAL AND
AUTHORIZATION OF THE COMMISSION, AS PROVIDED IN SUBDIVISION (B): 

"(I)  FOR TWO OR MORE CARRIERS TO CONSOLIDATE OR MERGE THEIR
PROPERTIES OR FRANCHISES, OR ANY PART THEREOF, INTO ONE CORPORATION FOR
THE OWNERSHIP, MANAGEMENT, AND OPERATION OF THE PROPERTIES THERETOFORE
IN SEPARATE OWNERSHIP; OR FOR ANY CARRIER, OR TWO OR MORE CARRIERS
JOINTLY, TO PURCHASE, LEASE, OR CONTRACT TO OPERATE THE PROPERTIES, OR
ANY PART THEREOF, OF ANOTHER; OR FOR ANY CARRIER, OR TWO OR MORE
CARRIERS JOINTLY, TO ACQUIRE CONTROL OF ANOTHER THROUGH OWNERSHIP OF
ITS STOCK OR OTHERWISE; OR FOR A PERSON WHICH IS NOT A CARRIER TO
ACQUIRE CONTROL OF TWO OR MORE CARRIERS THROUGH OWNERSHIP OF THEIR
STOCK OR OTHERWISE; OR FOR A PERSON WHICH IS NOT A CARRIER AND WHICH
HAS CONTROL OF ONE OR MORE CARRIERS TO ACQUIRE CONTROL OF ANOTHER
CARRIER THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE  ...  ."  41 STAT.
481, AS AMENDED, 49 U.S.C. SEC. 5(2)(A). 

FN4  OUR DISPOSITION MAKES UNNECESSARY ANY CONSIDERATION OF
APPELLANTS' ALTERNATIVE CONTENTION, NAMELY, THAT THE DISTRICT COURT
ABUSED ITS DISCRETION IN DENYING A MOTION BY APPELLANTS TO AMEND THEIR
COMPLAINT. 

FN5  IN 1952 PACIFIC GREYHOUND UNSUCCESSFULLY SOUGHT APPROVAL FROM
THE STATE COMMISSION FOR THE TRANSFER OF LOCAL OPERATIONS BETWEEN SAN
FRANCISCO AND MARIN COUNTY TO AN OPERATOR WHO OFFERED TO INVEST
$200,000 IN WORKING CAPITAL.  THE STATE COMMISSION, FINDING THE
PROPOSED TRANSFER "ADVERSE TO THE PUBLIC INTEREST," DENIED THE
APPLICATION.  PACIFIC GREYHOUND LINES, CERTIFICATE TRANSFER, 52 CAL.
P.U.C. 2, 7.    FN6  THIS INCLUDED 52 BUSES RECENTLY PURCHASED BY
PACIFIC GREYHOUND UNDER CONDITIONAL SALES CONTRACTS, 138 OTHER BUSES IN
USE IN THE SYSTEM, AND 194 CASH FARE BOXES.  GOLDEN GATE WAS TO ASSUME
PAYMENT OF $982,566 ON THE NEW BUSES, AND IN ADDITION WAS TO PAY
PACIFIC GREYHOUND $173,394 FOR ITS EQUITY THEREIN. 

FN7  SEE S. REP. NO. 433, 76TH CONG., 1ST SESS. 28-32; H.R. REP. NO.
1217, 76TH CONG., 1ST SESS. 6, 12, 17; H.R. REP. NO. 2016, 76TH CONG.,
3D SESS. 61; H.R. REP. NO. 2832, 76TH CONG., 3D SESS. 68-69.  SEE THE
HISTORICAL OUTLINE OF THE "CONSOLIDATION" PROVISIONS IN ST. JOE PAPER
CO. V. ATLANTIC COAST LINE R. CO., 347 U.S. 298, 315 (1954)(APPENDIX). 
FN8  SECTION 5(11):  "THE AUTHORITY CONFERRED BY THIS SECTION SHALL
BE EXCLUSIVE AND PLENARY, AND ANY CARRIER OR CORPORATION PARTICIPATING
IN OR RESULTING FROM ANY TRANSACTION APPROVED BY THE COMMISSION
THEREUNDER, SHALL HAVE FULL POWER  ...  TO CARRY SUCH TRANSACTION INTO
EFFECT AND TO OWN AND OPERATE ANY PROPERTIES AND EXERCISE ANY CONTROL
OR FRANCHISES ACQUIRED THROUGH SAID TRANSACTION WITHOUT INVOKING ANY
APPROVAL UNDER STATE AUTHORITY  ...  ."  54 STAT. 908, 49 U.S.C. SEC.
5(11). 

FN9  SEE S. REP. NO. 433, 76TH CONG., 1ST SESS. 28. 

FN10  SEE NOTE 3, SUPRA. 

FN11  SECTION 212(B):  "EXCEPT AS PROVIDED IN SECTION 5, ANY
CERTIFICATE OR PERMIT MAY BE TRANSFERRED, PURSUANT TO SUCH RULES AND
REGULATIONS AS THE COMMISSION MAY PRESCRIBE."  49 STAT. 555, AS
AMENDED, 54 STAT. 924, 49 U.S.C. SEC. 312(B). 

FN12  SEE NOTE 8, SUPRA. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON, MR. JUSTICE HARLAN, AND
MR. JUSTICE WHITTAKER WOULD AFFIRM THE JUDGMENT, SUBSTANTIALLY FOR THE
REASONS GIVEN IN THE OPINION OF THE DISTRICT COURT, 150 F. SUPP. 619. 
..END :












PUBLIC SERVICE COMMISSION OF UTAH V. UNITED STATES 356 U.S. 421 


NO. 15.  ARGUED DECEMBER 9, 1957 - DECIDED MAY 19, 1958 - 146 F. SUPP.
803, REVERSED AND CAUSE REMANDED. 


IN A PROCEEDING UNDER SEC. 13(3) AND (4) OF THE INTERSTATE COMMERCE
ACT, THE INTERSTATE COMMERCE COMMISSION CONSIDERED THE PETITION OF
RAILROADS OPERATING IN UTAH FOR AN INCREASE IN FREIGHT RATES ON
INTRASTATE TRAFFIC IN UTAH, WHICH HAD BEEN DENIED BY THE PUBLIC SERVICE
COMMISSION OF UTAH.  AFTER MAKING FINDINGS PATTERNED AFTER THOSE
APPROVED IN KING V. UNITED STATES, 344 U.S. 254, THE INTERSTATE
COMMERCE COMMISSION CONCLUDED THAT THE INTRASTATE RATES CAUSED "UNDUE,
UNREASONABLE, AND UNJUST DISCRIMINATION AGAINST INTERSTATE COMMERCE,"
AND IT ISSUED AN ORDER GENERALLY APPLYING TO INTRASTATE TRAFFIC IN UTAH
THE 15% INCREASE PREVIOUSLY GRANTED GENERALLY FOR INTERSTATE TRAFFIC. 
APPELLANTS SUED TO SET ASIDE THE ORDER; BUT THE DISTRICT COURT DENIED
RELIEF.  HELD:  CERTAIN FINDINGS OF THE COMMISSION LACK SUFFICIENT
SUPPORT IN THE EVIDENCE; THE JUDGMENT IS REVERSED; AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO SET ASIDE THE
COMMISSION'S ORDER AND REMAND THE CAUSE TO THE COMMISSION FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  PP. 422-429. 

(A)  THE COMMISSION'S FINDING THAT PREVAILING INTRASTATE RATES WERE
ABNORMALLY LOW AND FAILED TO CONTRIBUTE A FAIR SHARE TO OVER-ALL
REVENUE WAS NOT ADEQUATELY SUPPORTED BY THE EVIDENCE, SINCE THERE WAS
NO POSITIVE EVIDENCE TO INDICATE THAT THE RELATIVE COST OF INTRASTATE
TRAFFIC WAS AS GREAT AS THAT OF INTERSTATE SHIPMENTS.  PP. 426-427. 

(B)  TO SUPPORT ITS FINDING THAT INTRASTATE CONDITIONS WERE NOT MORE
FAVORABLE THAN THOSE INCIDENT TO INTERSTATE TRANSPORTATION, THE
RAILROAD EVIDENCE WAS FAR FROM SUBSTANTIAL.  PP. 427-428. 

(C)  THE FINDINGS CONTAIN NO INDICATION THAT THE COMMISSION CONCERNED
ITSELF WITH THE REVENUES DERIVED FROM, OR THE CONDITIONS INCIDENT TO,
INTRASTATE PASSENGER OPERATIONS, WHICH MUST BE TAKEN INTO CONSIDERATION
IN ARRIVING AT A GENERAL INTRASTATE FREIGHT LEVEL.  CHICAGO, M., ST.
P.&P.R. CO. V. ILLINOIS, 355 U.S. 300.  PP. 428-429. 

PUBLIC SERVICE COMMISSION OF UTAH ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS ANOTHER CLASH BETWEEN STATE AND FEDERAL
AUTHORITY IN THE REGULATION OF INTRASTATE COMMERCE.  THE PUBLIC SERVICE
COMMISSION OF UTAH AND THE UTAH CITIZENS RATE ASSOCIATION, APPELLANTS,
SEEK TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
ENTERED IN A PROCEEDING UNDER SEC. 13(3) AND (4) OF THE INTERSTATE
COMMERCE ACT (FN1) IN WHICH AN INCREASE IN INTRASTATE FREIGHT RATES TO
THE GENERAL LEVEL OF INTERSTATE RATES WAS GRANTED TO RAILROADS
OPERATING IN UTAH.  297 I.C.C. 87.  THE PRINCIPAL CONTENTION HERE IS
THAT THE EVIDENCE BEFORE THE COMMISSION WAS INSUFFICIENT TO SUPPORT ITS
ULTIMATE FINDING THAT EXISTING INTRASTATE RATES CAUSED "UNDUE,
UNREASONABLE, AND UNJUST DISCRIMINATION AGAINST INTERSTATE COMMERCE." 
297 I.C.C., AT 105.  A THREE-JUDGE DISTRICT COURT FOUND AGAINST
APPELLANTS ON THIS AND ALL SUBSIDIARY ISSUES.  146 F. SUPP. 803.  UPON
DIRECT APPEAL, 28 U.S.C. SEC. 1253, WE NOTED PROBABLE JURISDICTION. 
352 U.S. 888 (1956).   HAVING CONCLUDED THAT CERTAIN FINDINGS OF THE
COMMISSION LACK SUFFICIENT SUPPORT IN THE EVIDENCE, WE REVERSE THE
JUDGMENT OF THE DISTRICT  COURT. 

THE ACTION OF THE COMMISSION WAS LIMITED TO FREIGHT RATES ON
INTRASTATE TRAFFIC IN UTAH.  IN EX PARTE NO. 175 THE COMMISSION HAD
INCREASED INTERSTATE FREIGHT RATES ON A NATIONAL BASIS BY AN AGGREGATE
OF 15%.  (FN2)  THE APPELLEE RAILROADS APPLIED TO THE PUBLIC SERVICE
COMMISSION OF UTAH FOR A LIKE INCREASE IN INTRASTATE RATES.  AFTER A
FULL HEARING, THE UTAH COMMISSION DISMISSED THE APPLICATION ON THE
GROUND THAT THE RAILROADS HAD NOT PRODUCED EVIDENCE CONCERNING THEIR
INTRASTATE OPERATIONS AS REQUIRED BY UTAH LAW.  NO APPEAL WAS TAKEN. 
INSTEAD, PURSUANT TO 49 U.S.C. SEC. 13(3) AND (4), THE RAILROADS FILED
A PETITION WITH THE INTERSTATE COMMERCE COMMISSION WHICH LED TO THE
ORDER UNDER ATTACK HERE.  THE COMMISSION FOUND THE EVIDENCE
INSUFFICIENT TO ESTABLISH ANY UNDUE OR UNREASONABLE ADVANTAGE,
PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS OR LOCALITIES IN INTRASTATE
COMMERCE, ON THE ONE HAND, AND INTERSTATE COMMERCE ON THE OTHER.  BUT
IN FINDINGS PATTERNED AFTER THOSE APPROVED IN KING V. UNITED STATES,
344 U.S. 254 (1952), IT CONCLUDED THAT THE INTRASTATE RATES CAUSED
"UNDUE, UNREASONABLE, AND UNJUST DISCRIMINATION AGAINST INTERSTATE
COMMERCE."  297 I.C.C., AT 105.  IT SOUGHT TO REMOVE THIS BURDEN BY
GENERALLY APPLYING TO INTRASTATE TRAFFIC THE 15% INTERSTATE INCREASE
PREVIOUSLY GRANTED IN EX PARTE NO. 175.  (FN3) 

APPELLANTS ATTACK TWO FINDINGS OF THE COMMISSION AS NOT BEING
SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE FIRST IS THAT EXISTING
INTRASTATE RATES WERE ABNORMALLY LOW AND FAILED TO CONTRIBUTE THEIR
FAIR SHARE OF THE REVENUE NEEDS OF THE RAILROADS.  EVIDENCE WAS
INTRODUCED TO SHOW THAT SOME OF UTAH'S INTRASTATE RATES WERE LOWER THAN
CORRESPONDING INTERSTATE RATES FOR LIKE DISTANCES.  NO SHOWING WAS
MADE, HOWEVER, OF THE COMPARATIVE COSTS OF PERFORMING SUCH SERVICES. 
THE SECOND FINDING UNDER ATTACK IS THAT THE CONDITIONS INCIDENT TO
INTRASTATE TRANSPORTATION WERE NOT MORE FAVORABLE THAN THOSE INCIDENT
TO INTERSTATE MOVEMENTS.  THE EVIDENCE UNDERLYING THIS FINDING
INDICATED ONLY THAT GOODS MOVING INTRASTATE WERE HANDLED PRECISELY AS
WERE THOSE IN INTERSTATE TRANSPORTATION, BEING INTERMINGLED ON THE SAME
TRAINS. 

INTRASTATE TRANSPORTATION IS PRIMARILY THE CONCERN OF THE STATE. 
FEDERAL POWER EXISTS IN THIS AREA ONLY WHEN INTRASTATE TARIFFS ARE SO
LOW THAN AN UNDUE OR UNREASONABLE ADVANTAGE, PREFERENCE, OR PREJUDICE
IS CREATED AS BETWEEN PERSONS OR LOCALITIES IN INTRASTATE COMMERCE ON
THE ONE HAND AND INTERSTATE COMMERCE ON THE OTHER, OR WHEN THOSE RATES
CAST AN UNDUE BURDEN ON INTERSTATE COMMERCE.  (FN4)  PROOF OF SUCH MUST
MEET "A HIGH STANDARD OF CERTAINTY," ILLINOIS CENTRAL R. CO. V. PUBLIC
UTILITIES COMM'N, 245 U.S. 493, 510 (1918); BEFORE A STATE RATE CAN BE
NULLIFIED, THE JUSTIFICATION FOR THE EXERCISE OF FEDERAL POWER MUST
"CLEARLY APPEAR."  FLORIDA V. UNITED STATES, 282 U.S. 194, 211-212
(1931).  THE COURT POINTED OUT IN NORTH CAROLINA V. UNITED STATES, 325
U.S. 507, 511 (1945), THAT THE FINDINGS SUPPORTING SUCH AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION MUST ENCOMPASS EACH OF THE ELEMENTS
ESSENTIAL TO FEDERAL POWER.  THEREAFTER, IN KING V. UNITED STATES,
SUPRA, WE STRESSED THE NECESSITY OF SUBSTANTIAL EVIDENCE TO SUPPORT THE
FINDINGS, ALTHOUGH WE HELD IT UNNECESSARY "TO ESTABLISH FOR EACH ITEM
IN EACH FREIGHT RATE A FULLY DEVELOPED RATE CASE."  344 U.S., AT 275. 
IN KING, HOWEVER, THE INSUFFICIENCY OF THE FINDINGS RATHER THAN OF THE
EVIDENCE WAS URGED UPON THE COURT.  THOSE FINDINGS, WHICH WE HELD
ADEQUATE TO SUPPORT AN ORDER INCREASING INTRASTATE RATES, WERE, INTER
ALIA, (1) THAT EXISTING INTRASTATE RATES WERE ABNORMALLY LOW AND DID
NOT CONTRIBUTE A FAIR SHARE OF THE RAILROADS' REVENUE NEEDS; (2) THAT
CONDITIONS AS TO THE MOVEMENT OF INTRASTATE TRAFFIC WERE NOT MORE
FAVORABLE THAN THOSE EXISTING IN INTERSTATE COMMERCE; (3) THAT THE
RATES CAST AN UNDUE BURDEN ON INTERSTATE COMMERCE; (4) THAT THE
INCREASE ORDERED BY THE COMMISSION WOULD YIELD SUBSTANTIAL REVENUES;
AND (5) THAT SUCH INCREASE WOULD NOT RESULT IN INTRASTATE RATES BEING
UNREASONABLE AND WOULD REMOVE THE EXISTING DISCRIMINATION AGAINST
INTERSTATE COMMERCE.  344 U.S., AT 267-268, FOOTNOTE 13.  WE ALSO HELD
IN KING THAT THE COMMISSION MIGHT GIVE WEIGHT TO DEFICITS IN PASSENGER
REVENUE WHEN PRESCRIBING INTRASTATE FREIGHT RATES SO AS TO MEET OVER
ALL REVENUE NEEDS.  IN OUR MOST RECENT REVIEW OF FEDERAL POWER IN THIS
INTRASTATE AREA, CHICAGO, M., ST. P.&P.R. CO. V. ILLINOIS, 355 U.S. 300
(1958), WE RELIED ON THE PRINCIPLES OF THE ABOVE CASES IN STRIKING DOWN
AN INCREASE IN INTRASTATE PASSENGER FARES FOR A SUBURBAN COMMUTER
SERVICE BECAUSE THE COMMISSION HAD FAILED TO TAKE INTO ACCOUNT "THE
CARRIER'S OTHER INTRASTATE REVENUES FROM ILLINOIS TRAFFIC, FREIGHT AND
PASSENGER."  355 U.S., AT 308. 

WE DO NOT BELIEVE THAT THE EVIDENCE HERE MET THE EXACTING STANDARDS
REQUIRED BY OUR PRIOR CASES.  AS TO THE FINDING THAT PREVAILING
INTRASTATE RATES WERE ABNORMALLY LOW AND FAILED TO CONTRIBUTE A FAIR
SHARE OF OVER-ALL REVENUE, WE DISCOVER NO POSITIVE EVIDENCE TO INDICATE
THAT THE RELATIVE COST OF INTRASTATE TRAFFIC WAS AS GREAT AS THAT OF
INTERSTATE SHIPMENTS.  THE ABSENCE OF SUCH EVIDENCE IS IMPORTANT, FOR
IT IS NOT ENOUGH TO SAY THAT INTERSTATE RATES WERE HIGHER ON SIMILAR
SHIPMENTS FOR LIKE DISTANCES, FLORIDA V. UNITED STATES, SUPRA, AT 212,
ESPECIALLY WHERE, AS HERE, THERE WAS SOME INDICATION THAT INTRASTATE
TRAFFIC MOVED AT LOWER COST THAN INTERSTATE.  THE ANNUAL REPORTS OF THE
FOUR INTERSTATE RAILROADS OPERATING IN UTAH SHOWED THAT THEIR UTAH
OPERATING RATIOS (FREIGHT SERVICE COST DIVIDED BY FREIGHT SERVICE
REVENUE) AND THE UTAH DENSITY STATISTICS (TON MILES OF TRAFFIC PER MILE
OF MAIN TRACK) WERE MORE FAVORABLE THAN COMPARABLE SYSTEM-WIDE
FIGURES.  THE COMMISSION DISCREDITED THE DENSITY STATISTICS BECAUSE OF
THE ABSENCE OF BRANCH-LINE INCLUSION IN THE TOTALS.  THIS WAS TRUE,
HOWEVER, IN THE CASE OF BOTH UTAH AND SYSTEM-WIDE COMPUTATIONS, LEAVING
NO APPARENT FOUNDATION FOR THE CONCLUSION OF UNRELIABILITY. 

OTHER EVIDENCE SEEMED TO INDICATE THAT THOSE RAILROADS WITH THE
LARGER PERCENTAGES OF TOTAL OPERATIONS WITHIN UTAH ENJOYED HIGHER RATES
OF OVER-ALL RETURN FOR 1953, THE YEAR JUST PRIOR TO THE HEARINGS IN
THIS CASE.  THE DENVER & RIO GRANDE, WITH ALMOST HALF OF ITS ENTIRE
OPERATIONS WITHIN UTAH, SHOWED A RATE OF RETURN OF 6.06%.  THE SOUTHERN
PACIFIC AND UNION PACIFIC, WITH SUBSTANTIALLY SMALLER PROPORTIONS OF
UTAH OPERATIONS, SHOWED RETURNS OF 3.48% AND 3.56%, RESPECTIVELY. 

STATISTICS INTRODUCED BY THE RAILROADS AS TO COMPARATIVE ECONOMIC
CONDITIONS SHOWED RECENT ECONOMIC IMPROVEMENT TO BE GREATER
PERCENTAGEWISE IN THE WEST AND PARTICULARLY IN UTAH THAN IN OTHER
INDUSTRIAL AND MINING ACTIVITY, WITH ITS RESULTING INCREASE IN TRAFFIC
A FACTOR TENDING TO SUGGEST MORE FAVORABLE RAILROAD OPERATING
CONDITIONS. 

AS TO THE FINDING THAT INTRASTATE CONDITIONS WERE NOT MORE FAVORABLE
THAN THOSE INCIDENT TO INTERSTATE TRANSPORTATION, (FN5) THE RAILROAD
EVIDENCE ON THIS POINT WAS FAR FROM SUBSTANTIAL.  IN ESSENCE, IT MERELY
SHOWED THAT INTRASTATE AND INTERSTATE TRAFFIC WAS HANDLED BY THE SAME
CREWS AND INTERMINGLED IN THE SAME MOVEMENT.  THIS EVIDENCE FAILED TO
ESTABLISH THAT ALL MATERIAL FACTORS BEARING ON THE REASONABLENESS OF
RATES WERE SUBSTANTIALLY THE SAME.  AS WE HAVE PREVIOUSLY NOTED,
APPELLANTS OFFERED CONVINCING EVIDENCE NOT ONLY OF GREATER DENSITY ON
INTRASTATE OPERATIONS, PERMITTING A WIDER SPREAD OF FIXED COSTS, BUT
ALSO OF LOWER OPERATING RATIOS AND HIGHER RETURNS AS THE PERCENTAGE OF
INTRASTATE TRAFFIC INCREASED.  IN THE FACE OF THIS PROOF THE EVIDENCE
AS TO GENERAL SIMILARITY OF CONDITIONS FALLS SHORT OF THE "HIGH
STANDARD OF CERTAINTY" REQUIRED. 

IT IS SUGGESTED THAT THE COMMISSION, IN GRANTING GENERAL INTERSTATE
INCREASES, FREQUENTLY PROCEEDS ON THE ASSUMPTION THAT INTRASTATE RATES
WILL BE RAISED TO THE SAME LEVEL.  BUT THIS ASSUMPTION IS NO THROUGH
TICKET PERMITTING IT TO APPROACH THE QUESTION OF INTRASTATE RATES WITH
PARTIALITY FOR A UNIFORM INCREASE.  RATE UNIFORMITY IS NOT NECESSARILY
THE GOAL OF FEDERAL REGULATION, NOR CAN THE COMMISSION'S WISHFUL
THINKING BE SUBSTITUTED FOR SUBSTANTIAL EVIDENCE.  SECTION 13 IS NOT
CAST IN TERMS OF "ASSUMPTION" OR "PARTIALITY."  AS APPLIED TO THIS
CASE, IT CONTEMPLATES AN INQUIRY INTO INTRASTATE RATES AND CONDITIONS
WITHIN UTAH, AND ANY CONCLUSION THAT INTERSTATE OPERATING CONDITIONS
EQUALLY EXIST THERE MUST BE TICKETED ON MORE THAN ASSUMPTION. 

FINALLY, WE NOTE AN ABSENCE IN THE FINDINGS OF ANY INDICATION THAT
THE COMMISSION CONCERNED ITSELF WITH THE REVENUES DERIVED FROM, OR THE
CONDITIONS INCIDENT TO, INTRASTATE PASSENGER OPERATIONS.  WHILE A
SWEEPING INQUIRY INTO THOSE OPERATIONS IS NOT REQUIRED, WE BELIEVE THAT
IN LIGHT OF OUR OPINION IN CHICAGO, M., ST. P.&P.R. CO. V. ILLINOIS,
SUPRA, THE FINDINGS MUST REFLECT CONSIDERATION OF THESE FACTORS IN
ARRIVING AT A GENERAL INTRASTATE FREIGHT LEVEL.  "A FAIR PICTURE OF THE
INTRASTATE OPERATION, AND WHETHER THE INTRASTATE TRAFFIC UNDULY
DISCRIMINATES AGAINST INTERSTATE TRAFFIC, IS NOT SHOWN  ...  BY
LIMITING CONSIDERATION TO THE PARTICULAR  ...  SERVICE IN DISREGARD OF
THE REVENUE CONTRIBUTED BY THE OTHER INTRASTATE SERVICES."  355 U.S.,
AT 308.  THIS ISSUE WAS NOT ARGUED BY THE PARTIES, OUR OPINION IN THAT
CASE HAVING BEEN ANNOUNCED AFTER SUBMISSION OF THE INSTANT CASE.  WE
MENTION IT AT THIS POINT, HOWEVER, SINCE FURTHER PROCEEDINGS BEFORE THE
COMMISSION NO DOUBT WILL ENSUE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED TO THAT COURT WITH INSTRUCTIONS TO SET ASIDE THE ORDER OF THE
COMMISSION AND REMAND THE CAUSE TO THE COMMISSION FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SEC. 13.  "(3)  WHENEVER IN ANY INVESTIGATION UNDER THE
PROVISIONS OF THIS PART, OR IN ANY INVESTIGATION INSTITUTED UPON
PETITION OF THE CARRIER CONCERNED, WHICH PETITION IS HEREBY AUTHORIZED
TO BE FILED, THERE SHALL BE BROUGHT IN ISSUE ANY RATE, FARE, CHARGE,
CLASSIFICATION, REGULATION, OR PRACTICE, MADE OR IMPOSED BY AUTHORITY
OF ANY STATE, OR INITIATED BY THE PRESIDENT DURING THE PERIOD OF
FEDERAL CONTROL, THE COMMISSION, BEFORE PROCEEDING TO HEAR AND DISPOSE
OF SUCH ISSUE, SHALL CAUSE THE STATE OR STATES INTERESTED TO BE
NOTIFIED OF THE PROCEEDING.  THE COMMISSION MAY CONFER WITH THE
AUTHORITIES OF ANY STATE HAVING REGULATORY JURISDICTION OVER THE CLASS
OF PERSONS AND CORPORATIONS SUBJECT TO THIS PART OR PART III WITH
RESPECT TO THE RELATIONSHIP BETWEEN RATE STRUCTURES AND PRACTICES OF
CARRIERS SUBJECT TO THE JURISDICTION OF SUCH STATE BODIES AND OF THE
COMMISSION; AND TO THAT END IS AUTHORIZED AND EMPOWERED, UNDER RULES TO
BE PRESCRIBED BY IT, AND WHICH MAY BE MODIFIED FROM TIME TO TIME, TO
HOLD JOINT HEARINGS WITH ANY SUCH STATE REGULATING BODIES ON ANY
MATTERS WHEREIN THE COMMISSION IS EMPOWERED TO ACT AND WHERE THE RATE
MAKING AUTHORITY OF A STATE IS OR MAY BE AFFECTED BY THE ACTION TAKEN
BY THE COMMISSION.  THE COMMISSION IS ALSO AUTHORIZED TO AVAIL ITSELF
OF THE COOPERATION, SERVICES, RECORDS, AND FACILITIES OF SUCH STATE
AUTHORITIES IN THE ENFORCEMENT OF ANY PROVISION OF THIS PART OR PART
III. 

"(4)  WHENEVER IN ANY SUCH INVESTIGATION THE COMMISSION, AFTER FULL
HEARING, FINDS THAT ANY SUCH RATE, FARE, CHARGE, CLASSIFICATION,
REGULATION, OR PRACTICE CAUSES ANY UNDUE OR UNREASONABLE ADVANTAGE,
PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS OR LOCALITIES IN INTRASTATE
COMMERCE ON THE ONE HAND AND INTERSTATE OR FOREIGN COMMERCE ON THE
OTHER HAND, OR ANY UNDUE, UNREASONABLE, OR UNJUST DISCRIMINATION
AGAINST INTERSTATE OR FOREIGN COMMERCE, WHICH IS HEREBY FORBIDDEN AND
DECLARED TO BE UNLAWFUL, IT SHALL PRESCRIBE THE RATE, FARE, OR CHARGE,
OR THE MAXIMUM OR MINIMUM, OR MAXIMUM AND MINIMUM, THEREAFTER TO BE
CHARGED, AND THE CLASSIFICATION, REGULATION, OR PRACTICE THEREAFTER TO
BE OBSERVED, IN SUCH MANNER AS, IN ITS JUDGMENT, WILL REMOVE SUCH
ADVANTAGE, PREFERENCE, PREJUDICE, OR DISCRIMINATION.  SUCH RATES,
FARES, CHARGES, CLASSIFICATIONS, REGULATIONS, AND PRACTICES SHALL BE
OBSERVED WHILE IN EFFECT BY THE CARRIERS PARTIES TO SUCH PROCEEDING
AFFECTED THEREBY, THE LAW OF ANY STATE OR THE DECISION OR ORDER OF ANY
STATE AUTHORITY TO THE CONTRARY NOTWITHSTANDING."  41 STAT. 484, AS
AMENDED, 49 STAT. 543, 54 STAT. 911, 49 U.S.C. SEC. 13(3), (4).    FN2
THE INCREASE WAS ACCOMPLISHED IN THREE SEPARATE ORDERS.  280 I.C.C.
179; 281 I.C.C. 557; 284 I.C.C. 589.    FN3  APPELLANTS CHALLENGE THE
VALIDITY OF THE INTERSTATE INCREASES PERMITTED IN EX PARTE NO. 175. 
THAT RECORD, HOWEVER, WAS NOT INTRODUCED IN THIS PROCEEDING; MOREOVER,
OUR DISPOSITION REQUIRES NO DECISION ON THIS PHASE OF THE CASE. 

FN4  SEE NOTE 1, SUPRA. 

FN5  "WHERE THE CONDITIONS UNDER WHICH INTERSTATE AND INTRASTATE
TRAFFIC MOVE ARE FOUND TO BE SUBSTANTIALLY THE SAME WITH RESPECT TO ALL
FACTORS BEARING ON THE REASONABLENESS OF THE RATE, AND THE TWO CLASSES
ARE SHOWN TO BE INTIMATELY BOUND TOGETHER, THERE IS NO OCCASION TO DEAL
WITH THE REASONABLENESS OF THE INTRASTATE RATES MORE SPECIFICALLY, OR
TO SEPARATE INTRASTATE AND INTERSTATE COSTS AND REVENUES."  ILLINOIS
COMMERCE COMM'N V. UNITED STATES, 292 U.S. 474, 483-484 (1934); KING V.
UNITED STATES, SUPRA, AT 273. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON, MR. JUSTICE HARLAN,
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

THIS CASE INVOLVES AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
RAISING RATES ON UTAH INTRASTATE FREIGHT TRAFFIC ON THE GROUND THAT
SUCH RATES UNDULY DISCRIMINATE AGAINST INTERSTATE COMMERCE.  THE COURT
HAS FOUND THE EVIDENCE INSUFFICIENT TO SUPPORT THE COMMISSION'S
FINDINGS BEARING ON DISCRIMINATION, AND, ALTHOUGH PETITIONERS DO NOT
CALL THEM IN QUESTION, HAS ALSO CONCLUDED THAT THE FINDINGS THEMSELVES
ARE INADEQUATE.  OUR HOLDING IN THE RECENT CASE OF CHICAGO, M., ST.
P.&P.R. CO. V. ILLINOIS, 355 U.S. 300, HAS BEEN EXTENDED TO REQUIRE,
EVEN IN SUCH A CASE AS THIS, COMPREHENSIVE FINDINGS CONCERNING ALL
INTRASTATE OPERATIONS. 

THERE COMES A TIME IN THE DEVELOPMENT OF LAW, ESPECIALLY WHEN IT
CONCERNS AS COMPLEX AND IMPORTANT A SUBJECT AS THAT IN THE PRESENT
CASE, WHEN A COMPREHENSIVE SURVEY MUST BE MADE AND THE CUMULATIVE
EFFECT OF EPISODIC INSTANCES APPRAISED TO DETERMINE WHETHER OR NOT THEY
REVEAL A HARMONIOUS WHOLE.  CASE-BY-CASE ADJUDICATION, WITHOUT SCRUTINY
OF UNDERLYING GENERALIZATIONS OR PRESUPPOSITIONS, MUST CULMINATE IN AN
EFFORT TO DETERMINE WHITHER WE ARE GOING, AND WHETHER THE DIRECTION CUT
BY THE SPECIFIC INSTANCES SHOULD BE FURTHER PURSUED OR WHETHER IT
REPRESENTS A DEVIATION FROM THE PATH DEMANDED BY THE PURPOSE OF THE
REGULATORY LEGISLATION.  THESE CONSIDERATIONS, AND THE FACT THAT THE
SUFFICIENCY OF THE EVIDENCE CAN ONLY BE JUDGED INTELLIGENTLY IN THE
LIGHT OF THE FINDINGS, MAKE IT NECESSARY TO CONSIDER AT SOME LENGTH THE
CASES IN WHICH THIS COURT HAS BEEN CONCERNED WITH INTRASTATE RATE
DISCRIMINATION AGAINST INTERSTATE COMMERCE AND THE FINDINGS THAT HAVE
BEEN REQUIRED OF THE COMMISSION TO JUSTIFY AN ORDER REMOVING SUCH
DISCRIMINATION. 

FEDERAL REGULATION OF INTRASTATE RATES ORIGINATED IN CASES INVOLVING
DISCRIMINATION AS BETWEEN PARTICULAR PERSONS OR LOCALITIES ENGAGED IN
INTERSTATE COMMERCE AND PARTICULAR PERSONS OR LOCALITIES ENGAGED IN
INTRASTATE COMMERCE.  THE DISCRIMINATION IN THE SHREVEPORT CASE,
HOUSTON, E.&W.T.R. CO. V. UNITED STATES, 234 U.S. 342, AROSE FROM THE
FACT THAT INTERSTATE SHIPPERS WERE REQUIRED TO PAY MORE THAN INTRASTATE
SHIPPERS ALTHOUGH THE RATE DISPARITY WAS NOT JUSTIFIED BY ANY
DIFFERENCE IN COSTS, TRANSPORTATION CONDITIONS, OR OTHER FACTORS
USUALLY CONSIDERED IN SETTING RATES.  THIS DISCRIMINATION WAS REMOVED
IN ORDER TO PROTECT THE INTERSTATE COMMERCE OF THE PARTICULAR SHIPPERS
OR LOCALITIES SHOWN TO HAVE BEEN PREJUDICED, THE SAME REASON FOR
PROHIBITING UNDER SEC. 3(1) OF THE INTERSTATE COMMERCE ACT, 24 STAT.
379, 380, AS AMENDED, 49 U.S.C. SEC. 3(1), ANY "UNDUE OR UNREASONABLE
PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON  ...  LOCALITY  ...
OR ANY PARTICULAR DESCRIPTION OF TRAFFIC  ... " WHERE TWO FORMS OF
INTERSTATE COMMERCE ARE INVOLVED.  IT HAS OFTEN BEEN SAID THAT THIS
FORM OF DISCRIMINATION ARISES SIMPLY FROM THE RELATION OF RATES TO EACH
OTHER, BUT THIS IS TRUE ONLY IF IT IS UNDERSTOOD THAT THE CIRCUMSTANCES
THAT ENTER INTO THE SETTING OF RATES AND JUSTIFY DIFFERENCES BETWEEN
THEM ARE ALSO TAKEN INTO CONSIDERATION.  EVEN IN A PERSONS-LOCALITIES
CASE, DISCRIMINATION IS NOT MADE OUT MERELY FROM A DISPARITY IN RATES,
BUT, AS THE COURT MADE CLEAR IN THE SHREVEPORT CASE, THE DISPARITY MUST
EXIST UNDER "'SUBSTANTIALLY SIMILAR CONDITIONS AND CIRCUMSTANCES  ...
.'"  234 U.S., AT 347. 

THE POWER TO REMOVE DISCRIMINATION THUS ANNOUNCED IN THE SHREVEPORT
CASE, AS BETWEEN PERSONS AND LOCALITIES IN INTERSTATE AND INTRASTATE
COMMERCE, WAS GIVEN EXPRESS STATUTORY BASIS BY SEC. 416 OF THE
TRANSPORTATION ACT OF 1920, 41 STAT. 456, 484, 49 U.S.C. SEC. 13(4),
AMENDING SEC. 13 OF THE INTERSTATE COMMERCE ACT.  THE AMENDMENT ADDED,
HOWEVER, AS PART OF A MUCH MORE COMPREHENSIVE REGULATION OF THE
NATION'S TRANSPORTATION SYSTEM, A BROAD PROHIBITION AGAINST "ANY UNDUE,
UNREASONABLE, OR UNJUST DISCRIMINATION AGAINST INTERSTATE OR FOREIGN
COMMERCE  ...  ."  THIS PROVISION, TAKEN IN CONJUNCTION WITH SEC.
15A(2), 41 STAT. 456, 488, AS AMENDED, 49 U.S.C. SEC. 15A(2), WAS
CONSTRUED IN RAILROAD COMM'N OF WISCONSIN V. CHICAGO, B.&Q.R. CO., 257
U.S. 563, TO AUTHORIZE THE COMMISSION TO REMOVE "REVENUE
DISCRIMINATION" RESULTING FROM UNJUSTIFIABLY LOW INTRASTATE RATES.  THE
CONSTITUTIONALITY OF THIS POWER WAS UPHELD AGAINST CLAIMS OF
UNWARRANTED INTRUSION INTO THE AREA RESERVED TO THE STATES IN THEIR
CONTROL OVER INTRASTATE COMMERCE.  "REVENUE DISCRIMINATION" CONSISTS,
NOT IN PREJUDICE TO PARTICULAR SHIPPERS OR LOCALITIES, BUT IN THE
BURDEN CAST ON INTERSTATE COMMERCE BECAUSE OF THE FAILURE OF INTRASTATE
COMMERCE TO CONTRIBUTE ITS FAIR SHARE TO MEET THE REVENUE NEEDS OF THE
CARRIER.  OF COURSE INTERSTATE SHIPPERS AND LOCALITIES WILL ULTIMATELY
BE PREJUDICED BY HAVING TO MAKE UP REVENUES PROPERLY DUE FROM
INTRASTATE COMMERCE OR BY THE COLLAPSE OF AN ADEQUATE TRANSPORTATION
SYSTEM, BUT THE IMMEDIATE PURPOSE OF THE EXERCISE OF THE COMMISSION'S
POWER UNDER THIS HEAD IS TO ASSURE TO THE CARRIER NEEDED REVENUES.  THE
TEST OF WHAT REVENUES ARE NEEDED IS FOUND IN SEC. 15A(2), 41 STAT. 456,
488, AS AMENDED, 49 U.S.C. SEC. 15A(2), WHICH INSTRUCTS THE COMMISSION
IN PRESCRIBING RATES TO GIVE DUE CONSIDERATION TO THE NEED "IN THE
PUBLIC INTEREST, OF ADEQUATE AND EFFICIENT RAILWAY TRANSPORTATION
SERVICE AT THE LOWEST COST CONSISTENT WITH THE FURNISHING OF SUCH
SERVICE; AND TO THE NEED OF REVENUES SUFFICIENT TO ENABLE THE CARRIERS,
UNDER HONEST, ECONOMICAL, AND EFFICIENT MANAGEMENT TO PROVIDE SUCH
SERVICE."  THE NATIONAL TRANSPORTATION POLICY OF 1940, 54 STAT. 899, 49
U.S.C., AT PP. 7107-7108, IN TURN EXPANDED AND SUPPLEMENTED THE TEST OF
SEC. 15(A)(2).  THE "DOVETAIL RELATION," AS MR. CHIEF JUSTICE TAFT
TERMED IT IN THE WISCONSIN CASE, 257 U.S., AT 586, BETWEEN THE SECOND
PART OF SEC. 13(4) AND SEC. 15A(2), THUS GAVE A MUCH BROADENED PURPOSE
TO FEDERAL REGULATION.  "THERETOFORE, THE EFFORT OF CONGRESS HAD BEEN
DIRECTED MAINLY TO THE PREVENTION OF ABUSES; PARTICULARLY, THOSE
ARISING FROM EXCESSIVE OR DISCRIMINATORY RATES.  THE 1920 ACT SOUGHT TO
ENSURE, ALSO, ADEQUATE TRANSPORTATION SERVICE."  NEW ENGLAND DIVISIONS
CASE, 261 U.S. 184, 189. 

THE ORDER SUSTAINED IN THE WISCONSIN CASE AFFECTED INTRASTATE FARES
ON A STATE-WIDE BASIS.  THE COURT EXPRESSLY REJECTED DISCRIMINATION
AGAINST PERSONS OR LOCALITIES AS JUSTIFICATION FOR THE ORDER, ON THE
GROUND THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF
STATE-WIDE DISCRIMINATION OF THIS KIND.  THIS CONCLUSION MAY HAVE BEEN
JUSTIFIED IN THE WISCONSIN CASE ITSELF.  HOWEVER, THE LIMITATION
IMPOSED BY THAT CASE AND LATER CASES UPON THE EFFECTIVE SCOPE OF THE
PERSONS-LOCALITIES BASIS OF DISCRIMINATION, BECAUSE OF STRINGENT
EVIDENTIARY REQUIREMENTS, SEEMS TO HAVE DERIVED MORE FROM THE ORIGIN OF
THE PROHIBITION IN THE PARTICULAR KIND OF SITUATION PRESENTED BY THE
SHREVEPORT CASE THAN FROM RESTRICTIONS INHERENT IN THE REGULATORY
SCHEME CONTEMPLATED BY THE STATUTE.  WHETHER DISCRIMINATION IS DIRECTLY
AGAINST SHIPPERS OR AGAINST THE REVENUES OF THE CARRIERS, PRACTICAL
CONSIDERATIONS REQUIRE THAT EVIDENCE TYPICAL OF DISCRIMINATORY
CONDITIONS BE SUFFICIENT TO JUSTIFY AN ORDER THAT GOES BEYOND THE
PARTICULAR INSTANCES SHOWN.  IN REVENUE CASES EVIDENCE OF SOME
INTRASTATE RATES MAY BE DEEMED TYPICAL AND RELIED ON TO SHOW THAT
INTRASTATE RATES IN GENERAL DO NOT CONTRIBUTE THEIR FAIR SHARE TO
REVENUES.  LIKEWISE IT MIGHT NOT HAVE BEEN UNREASONABLE TO RELY ON
EVIDENCE OF PREJUDICE TO CERTAIN INTERSTATE SHIPPERS AS INDICATIVE OF
PREJUDICE THROUGHOUT THE STATE TO INTERSTATE SHIPPERS, AND THUS JUSTIFY
A STATE-WIDE ORDER TO REMOVE DISCRIMINATION AGAINST "INTERSTATE
COMMERCE" WITHOUT RESORT TO THE QUESTION OF REVENUES. 

FOR A TIME IT APPEARED THAT SEC. 13(4) WOULD BE CONSTRUED TO
AUTHORIZE THE REMOVAL OF DISCRIMINATION AGAINST INTERSTATE COMMERCE ON
SUCH A BASIS.  IN GEORGIA PUB. SERV. COMM'N V. UNITED STATES, 283 U.S.
765, FOR EXAMPLE, THE COURT SUSTAINED A STATE-WIDE ORDER NOT CONFINED
IN ITS EFFECT TO TRAFFIC DIRECTLY SHOWN TO HAVE BEEN PREJUDICED, YET
ATTENTION DOES NOT SEEM TO HAVE BEEN DIRECTED TO THE REVENUE NEEDS OF
THE CARRIERS.  IN ITS OPINION THE COURT SPOKE PARTICULARLY OF "UNDUE
PREJUDICE AND DISCRIMINATION TO INTERSTATE SHIPPERS AND LOCALITIES  ...
," 283 U.S., AT 773, AND THE BRIEF FOR THE INTERSTATE COMMERCE
COMMISSION INDICATES THAT THE CASE WAS NOT PRIMARILY CONCEIVED OF AS A
REVENUE CASE.  PP. 38-40.  (SEE ALSO THE SIGNIFICANCE OF THE COURT'S
RELIANCE, 283 U.S., AT 774, ON NASHVILLE, C. & ST. L.R.  V. TENNESSEE,
262 U.S. 318.)  IN LOUISIANA PUB. SERV. COMM'N V. TEXAS & N.O.R. CO.,
284 U.S. 125, AN ORDER AFFECTING RATES THROUGHOUT MOST OF THE STATE WAS
SUSTAINED IN SPITE OF THE FACT, AS APPELLANTS POINTED OUT, 284 U.S., AT
126-128, THAT THERE WERE NO FINDINGS IN REGARD TO REVENUE.  FINALLY, IN
OHIO V. UNITED STATES, 292 U.S. 498, THE COURT SANCTIONED AN UNUSUALLY
WIDE APPLICATION OF THE PERSONS-LOCALITIES BASIS OF DISCRIMINATION IN
SUSTAINING AN ORDER RAISING COAL RATES THROUGHOUT THE ENTIRE
NORTHEASTERN PART OF OHIO. 

NEVERTHELESS, THE APPROACH SUGGESTED BY THESE CASES WAS NOT IN FACT
CARRIED FORWARD.  THE FIRST FLORIDA CASE, FLORIDA V. UNITED STATES, 282
U.S. 194, 208, STRONGLY REAFFIRMED THE WISCONSIN CASE IN ITS REJECTION
OF THE PERSONS-LOCALITIES BASIS FOR A STATE-WIDE ORDER, AND IN THE
REQUIREMENT THAT AN ORDER PREDICATED ON SUCH A THEORY BE RESTRICTED TO
"COMPETITIVE TERRITORY."  SEE AMERICAN EXPRESS CO. V. SOUTH DAKOTA EX
REL. CALDWELL, 244 U.S. 617, 626.  THIS WAS PERHAPS INEVITABLE IN VIEW
OF THE FACT THAT THE SHREVEPORT DOCTRINE HAD BEEN EVOLVED TO REMEDY A
SPECIFIC SITUATION - PREJUDICE AGAINST PARTICULAR SHIPPERS OR
LOCALITIES SHOWN BY RELATIVELY DIRECT EVIDENCE - SO THAT THE EVIL THAT
GAVE RISE TO THE LEGAL THEORY IN TURN LIMITED ITS GROWTH.  FURTHERMORE,
THE BROAD POWER THAT THE COURT FOUND IN THE RELATION BETWEEN SEC. 13(4)
AND SEC. 15A(2), TO PROTECT THE CARRIERS' REVENUES, MADE IT APPEAR
UNNECESSARY TO EXPAND THE PERSONS-LOCALITIES THEORY IN ORDER
EFFECTIVELY TO PROTECT INTERSTATE COMMERCE.  THE RESULT HAS BEEN THAT,
OVER THE YEARS, THE CASES THAT HAVE COME BEFORE THIS COURT THAT HAVE
RESULTED IN SIGNIFICANT DEVELOPMENTS UNDER SEC. 13(4) HAVE BEEN ALMOST
EXCLUSIVELY REVENUE CASES. 

FINDINGS IN REVENUE CASES UNDER SECTION 13(4).  - IN THESE CASES WE
HAVE BEEN CONCERNED TO SET FORTH, WITH SUCH PRECISION AS THE SUBJECT
MATTER PERMITS, THE FINDINGS REQUIRED TO JUSTIFY AN ULTIMATE CONCLUSION
THAT THERE IS A REVENUE DISCRIMINATION AGAINST INTERSTATE COMMERCE. 
SUCH FINDINGS NEED NOT BE, IN ANY PARTICULAR FORM OF WORDS, THE
AUTOMATIC RECITATION OF A TALISMANIC FORMULA, BUT MUST GIVE AMPLE
ASSURANCE THAT THE COMMISSION HAS APPLIED THE STANDARDS AND ENGAGED IN
THE PROCESS OF JUDGMENT CONTEMPLATED BY THE STATUTE.  ONLY THROUGH THE
FINDINGS CAN A COURT KNOW WHAT IT IS THAT THE COMMISSION HAS DECIDED
AND IS TO BE REVIEWED. 

SINCE THE PURPOSE OF THE PROCEEDING IS TO INCREASE THE CONTRIBUTION TO
REVENUES FROM INTRASTATE TRAFFIC, THERE MUST BE A FINDING THAT HIGHER
RATES WILL IN FACT RESULT IN INCREASED REVENUES.  IF BUSINESS IS UNABLE
TO BEAR THE HIGHER RATES, AND EITHER PRODUCTION WILL BE CURTAILED OR
TRAFFIC DIVERTED TO CHEAPER MODES OF TRANSPORT, INCREASED RATES MAY
ACTUALLY DECREASE REVENUES.  THE COMMISSION'S FINDING ON THIS MATTER
MUST EXPRESS AN INFORMED, EXPERT JUDGMENT ABOUT PROBABILITIES.  IT MAY
NOT REST SIMPLY ON THE MECHANICAL APPLICATION OF PROPOSED RATES TO THE
VOLUME OF PAST TRAFFIC, BUT, ON THE OTHER HAND, THE FACT THAT THERE IS
UNCERTAINTY ABOUT THE ACTUAL REVENUE OUTCOME WILL NOT MAKE THE FINDING
INSUFFICIENT.  UNITED STATES V. LOUISIANA, 290 U.S. 70, 80. 

THE FINDING PRINCIPALLY REQUIRED IN A REVENUE CASE IS THAT INTRASTATE
COMMERCE IS NOT CONTRIBUTING ITS "FAIR SHARE" TO THE REVENUES NEEDED TO
ACHIEVE THE ENDS SET FORTH IN SEC. 15A(2) AND THE NATIONAL
TRANSPORTATION POLICY.  WHAT SHARE IS A FAIR SHARE?  INTRASTATE TRAFFIC
IS NOT CONTRIBUTING A FAIR SHARE IF IT PAYS LOWER RATES THAN INTERSTATE
TRAFFIC WHEN, ON BALANCE, THE CIRCUMSTANCES THAT USUALLY GO TO THE
SETTING OF RATES ARE NOT SUBSTANTIALLY MORE FAVORABLE FOR INTRASTATE
TRAFFIC THAN FOR INTERSTATE TRAFFIC.  AS ALREADY INDICATED, THIS SAME
TEST IS APPLICABLE IN CASES INVOLVING DISCRIMINATION AGAINST PERSONS OR
LOCALITIES.  A DISPARITY IN RATES DOES NOT ALONE ESTABLISH A FORBIDDEN
DISCRIMINATION, AS THE COURT HAS FREQUENTLY SAID, NOR, IT IS EQUALLY
CLEAR, SINCE CONDITIONS SURROUNDING INTERSTATE TRANSPORTATION MAY BE
MORE FAVORABLE, DOES IDENTITY OF RATES ALONE GIVE ASSURANCE THAT THERE
IS NOT SUCH DISCRIMINATION.    THE MOST OBVIOUS OF THE CIRCUMSTANCES
THUS MADE RELEVANT ARE THE COSTS THAT ENTER INTO THE RENDERING OF THE
TRANSPORTATION SERVICE.  THE CIRCUMSTANCES THAT GO TO THE SETTING OF A
RATE, HOWEVER, ARE NOT NECESSARILY CONFINED TO SUCH COSTS, BUT MAY
INCLUDE A WIDE RANGE OF OTHER CONSIDERATIONS SUCH AS THE ABILITY OF
TRAFFIC TO BEAR THE INCREASE AND THE ECONOMIC CONDITION OF AN
INDUSTRY.  COSTS, FURTHERMORE, MAY BE CONSIDERED INDIRECTLY THROUGH THE
FACTORS THAT GENERATE COSTS, SUCH AS THE QUALITY OF THE SERVICE
RENDERED, THE PHYSICAL CHARACTERISTICS OF THE AREA THROUGH WHICH THE
TRAFFIC MOVES, AVERAGE LOADING, AVERAGE LENGTH OF HAUL, DENSITY OF
TRAFFIC, AND SO FORTH.  IN REGARD TO THE AVERAGE LENGTH OF HAUL, FOR
EXAMPLE, IF TERMINAL COSTS ARE FIXED, THE LONGER THE HAUL THE MORE THE
CARRIER WILL REALIZE PER MILE UNLESS THE RATE IS ITSELF GRADUATED TO
TAKE THIS FACT INTO ACCOUNT.  INTERSTATE HAULS ARE PROBABLY ON THE
WHOLE LONGER THAN INTRASTATE HAULS.  WHERE PASSENGER SERVICE IS
CONCERNED, WHOLLY DIFFERENT FACTORS MAY BECOME IMPORTANT IN DECIDING
WHETHER FARE DIFFERENTIALS ARE JUSTIFIED.  FOR INSTANCE, COACHES USED
IN INTRASTATE SUBURBAN OR COMMUTER SERVICE MAY REQUIRE MORE CLEANING
AND AVERAGE FEWER PASSENGER MILES PER DAY THAN THROUGH COACHES.  SEE,
E.G., IN RE INTRASTATE RATES WITHIN ILLINOIS, 102 I.C.C. 479, 483.  IT
IS APPARENT THAT THE FACTORS THAT MAY REASONABLY BE FOUND TO ENTER INTO
COSTS ARE INEXHAUSTIBLE IN NUMBER AND TOO CHANGING IN SIGNIFICANCE TO
PERMIT A DEFINITIVE CATALOGUE TO BE DRAWN UP.  LEAST OF ALL SHOULD SUCH
A TASK BE UNDERTAKEN BY COURTS THAT CANNOT BE ASSUMED TO HAVE
FAMILIARITY WITH, LET ALONE SPECIALIZED KNOWLEDGE OF, THE
PRACTICALITIES OF THE TRANSPORTATION INDUSTRY, AND WHOSE CONTACT WITH
THESE MATTERS IS NECESSARILY EPISODIC.  UNDERSTANDING IN SUCH A COMPLEX
AREA AS RATE REGULATION, AND THE FEEL FOR THE SUBJECT ESSENTIAL TO
SUCCESSFUL ADMINISTRATION, COME ONLY FROM SATURATION IN THE ELEMENTS OF
THE PROBLEM BY THOSE CONSTANTLY CONCERNED.  EVEN TO THE COMMISSION,
WHAT ONE YEAR HAS APPEARED AN INCONSIDERABLE FACTOR IN APPRAISING
RELATIVE TRANSPORTATION CONDITIONS AFFECTING COSTS HAS THE NEXT, IN THE
LIGHT OF NEW EXPERIENCE, BEEN DEEMED HIGHLY RELEVANT. 

IT IS ESSENTIAL TO BEAR IN MIND PRECISELY WHAT IT IS THAT THE
COMMISSION COMPARES WHEN IT COMPARES THE CIRCUMSTANCES SURROUNDING THE
MOVEMENT OF INTERSTATE AND INTRASTATE TRAFFIC THAT GO TO THE SETTING OF
RATES.  IN THE CASE OF INTERSTATE TRAFFIC, ONE RATE SET FOR AN ENTIRE
INTERSTATE MOVEMENT MAY TAKE INTO ACCOUNT NOT ONLY CONDITIONS WITHIN
THE STATE WHOSE INTRASTATE RATES ARE IN QUESTION, BUT ALSO CONDITIONS
IN SURROUNDING STATES.  IN COMPARING COST FACTORS, THEREFORE, IT MAY BE
NECESSARY TO CONSIDER NOT ONLY WHETHER INTERSTATE AND INTRASTATE
TRAFFIC AS THEY MOVE THROUGH THE STATE MOVE UNDER THE SAME CONDITIONS,
BUT ALSO THE CONDITIONS UNDER WHICH INTERSTATE TRAFFIC MOVES BEYOND THE
BORDERS OF THE STATE.  THE INTERSTATE AREA RELEVANT TO THIS INQUIRY MAY
EMBRACE SEVERAL STATES, SUCH AS THE WESTERN DISTRICT IN THE PRESENT
CASE, OR HALF THE COUNTRY; IT IS THE AREA CHOSEN IN SETTING THE
INTERSTATE RATES. 

WHAT FINDINGS THE COMMISSION IS REQUIRED TO MAKE CONCERNING THE
CIRCUMSTANCES SURROUNDING INTERSTATE AND INTRASTATE TRANSPORTATION TO
JUSTIFY AN ULTIMATE FINDING THAT INTRASTATE TRAFFIC IS NOT CONTRIBUTING
ITS FAIR SHARE TO REVENUES HAVE NECESSARILY BEEN DICTATED MORE BY THE
PRACTICALITIES OF ADMINISTRATION THAN THE DEMANDS OF ABSTRACT LOGIC. 
THE COMMISSION HAS NOT BEEN REQUIRED TO MAKE FINDINGS AS TO REVENUES
AND COSTS ATTRIBUTABLE TO INTRASTATE TRAFFIC OR EVEN TO MAKE FINDINGS
SPECIFICALLY NEGATIVING THE EXISTENCE OF ANY FACTORS THAT MIGHT AFFECT
COSTS.  ALTHOUGH SUCH FINDINGS WOULD GIVE INCREASED ASSURANCE THAT
INTRASTATE COMMERCE WAS NOT BEING MADE TO BEAR MORE THAN ITS FAIR
SHARE, AN UNWILLINGNESS TO RENDER NUGATORY THE PROVISIONS OF SEC. 13(4)
BY IMPOSING UPON THE COMMISSION OBLIGATIONS IMPOSSIBLE OF FULFILLMENT
HAS PRECLUDED THE COURT FROM SUCH A REQUIREMENT. 

IN ILLINOIS COMMERCE COMM'N V. UNITED STATES, 292 U.S. 474, A CASE
INVOLVING RATES IN THE CHICAGO SWITCHING DISTRICT, THE COURT CLEARLY
LAID DOWN WHAT HAD BEEN IMPLICIT IN EARLIER CASES SUSTAINING COMMISSION
ORDERS.  IN REPLY TO A CONTENTION THAT THERE HAD BEEN NO FINDING
SEPARATING INTERSTATE AND INTRASTATE PROPERTY, REVENUES, AND EXPENSES,
THE COURT STATED:  "WHERE THE CONDITIONS UNDER WHICH INTERSTATE AND
INTRASTATE TRAFFIC MOVE ARE FOUND TO BE SUBSTANTIALLY THE SAME WITH
RESPECT TO ALL FACTORS BEARING ON THE REASONABLENESS OF THE RATE, AND
THE TWO CLASSES ARE SHOWN TO BE INTIMATELY BOUND TOGETHER, THERE IS NO
OCCASION TO DEAL WITH THE REASONABLENESS OF THE INTRASTATE RATES MORE
SPECIFICALLY, OR TO SEPARATE INTRASTATE AND INTERSTATE COSTS AND
REVENUES."  292 U.S., AT 483-484.  THIS STATEMENT WAS QUOTED WITH
APPROVAL AND APPLIED IN KING V. UNITED STATES, 344 U.S. 254, 273.  THE
ORDER IN THE KING CASE WAS SUSTAINED, ALTHOUGH THE ONLY FINDING
RESPECTING THE SIMILARITY OF CONDITIONS SURROUNDING INTERSTATE AND
INTRASTATE TRANSPORTATION WAS THE GENERAL FINDING THAT, "THE
TRANSPORTATION CONDITIONS INCIDENT TO THE INTRASTATE TRANSPORTATION OF
FREIGHT IN FLORIDA ARE NOT MORE FAVORABLE AND SUCH CONDITIONS IN THE
FLORIDA PENINSULA ARE SOMEWHAT LESS FAVORABLE THAN THOSE (1) WITHIN
SOUTHERN TERRITORY AND (2) BETWEEN FLORIDA AND INTERSTATE POINTS."  278
I.C.C. 41, 72.  SEE ALSO THE SECOND FLORIDA CASE, FLORIDA V. UNITED
STATES, 292 U.S. 1, 11. 

MORE ELABORATE FINDINGS HAVE NOT BEEN REQUIRED BECAUSE OF THE
PRACTICAL IMPOSSIBILITY, AT LEAST WHERE THE TRAFFIC IS MINGLED AND
CARRIED ON AS ONE OPERATION, OF ACCURATELY SEGREGATING COSTS BETWEEN
INTERSTATE AND INTRASTATE COMMERCE.  MOREOVER, A GENERAL FINDING OF
SIMILARITY OF CONDITIONS WAS HELD SUFFICIENT BECAUSE IT WOULD HAVE BEEN
THE HEIGHT OF IMPRUDENCE FOR THIS COURT TO REQUIRE THE COMMISSION
SPECIFICALLY TO NEGATIVE THE EXISTENCE OF ALL FACTORS THAT MIGHT TOUCH
ON COSTS WHEN, BECAUSE OF THE CHANGING NATURE OF THE TRANSPORTATION
INDUSTRY AND THE ENDLESS VARIETY OF SITUATIONS GIVING RISE TO
DISCRIMINATION, SUCH FACTORS ARE NOT PRECISE, FIXED, OR EQUAL IN
IMPORTANCE.  THE HOLDING IN THE KING CASE WAS A PRACTICAL SOLUTION
HAMMERED OUT TO MEET THE ALMOST INTRACTABLE DIFFICULTY OF REGULATING AS
TWO SYSTEMS WHAT IS IN FACT ONE INTEGRATED TRANSPORTATION SYSTEM OF
INTERSTATE AND INTRASTATE COMMERCE, WHERE REGULATION, IF THERE IS TO BE
REGULATION AT ALL, MUST BE BY APPROXIMATION AND COMPROMISE. 

EVIDENCE IN SECTION 13(4) CASES.  - IN THE PRESENT CASE THE
COMMISSION FOUND THAT, "THE CONDITIONS INCIDENT TO THE INTRASTATE
TRANSPORTATION OF FREIGHT IN UTAH ARE NOT MORE FAVORABLE THAN THOSE
INCIDENT TO THE INTERSTATE TRANSPORTATION BETWEEN UTAH AND ADJOINING
STATES."  PETITIONERS ATTACK THIS FINDING AS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE.  THE FINDINGS NECESSARY TO SUPPORT AN ORDER UNDER
SEC. 13(4) HAVE BEEN CONSIDERED AT LENGTH BECAUSE ONLY IN THE LIGHT OF
THEM, AND THE REASONS THAT LED THE COURT TO REQUIRE THESE, AND NOT MORE
ELABORATE, FINDINGS, CAN THE SUFFICIENCY OF THE EVIDENCE BE APPRAISED. 
THUS IT WOULD BE PARADOXICAL, AFTER DECIDING THAT THE COMMISSION NEED
NOT MAKE FINDINGS SEGREGATING COSTS BECAUSE OF THE PRACTICAL
IMPOSSIBILITY OF ACCURATE ALLOCATION, TO REQUIRE THAT EVIDENCE TO THE
SAME EFFECT BE IN THE RECORD.  LIKEWISE, IF INDIVIDUAL FINDINGS ON
PARTICULAR FACTORS THAT MAY BEAR ON COSTS NEED NOT BE MADE BECAUSE AN
AUTHORITATIVE CATALOGUE OF SUCH FACTORS CANNOT BE COMPILED, IT WOULD BE
INCONSISTENT, AND WOULD DISREGARD THE CRITERIA GOVERNING THE FINDINGS,
TO REQUIRE THAT THE RECORD CONTAIN EVIDENCE AS TO ALL SUCH FACTORS OR
AS TO ANY PARTICULAR FACTOR. 

SINCE, AS CANNOT TOO OFTEN BE POINTED OUT, THE COMMISSION'S
ADMINISTRATION OF SEC. 13(4) MUST FROM THE NATURE OF THE CASE PROCEED
BY APPROXIMATION AND ESTIMATE, AND FOR THIS REASON THE POSSIBLE MUST
HAVE A LARGE SHARE IN DETERMINING THE PERMISSIBLE, IT IS HIGHLY
RELEVANT TO EXAMINE AT LEAST SOME OF THE SEC. 13(4) CASES THAT HAVE
COME BEFORE THIS COURT TO DETERMINE WHAT EVIDENCE HAS ACTUALLY BEEN IN
THE RECORD IN SUPPORT OF FINDINGS OF SIMILARITY OF CONDITIONS.  IN
DETERMINING WHETHER THE RECORD IN THE PRESENT CASE SATISFIED THE
REQUIREMENT OF SUBSTANTIAL EVIDENCE, WE DO NOT DEAL WITH A NEW
PROBLEM. 

IN THE WISCONSIN CASE ITSELF, RAILROAD COMM'N OF WISCONSIN V.
CHICAGO, B.&Q.R. CO., 257 U.S. 563, A STIPULATION THAT OPERATING AND
TRANSPORTATION CONDITIONS WERE SUBSTANTIALLY THE SAME MADE IT
UNNECESSARY TO EXAMINE THE EVIDENCE UNDERLYING THE COMMISSION'S FINDING
ON THIS POINT, AND THE RECORD ON WHICH THE COMMISSION FOUNDED ITS ORDER
WAS NOT IN FACT BEFORE THIS COURT.  IN NEW YORK V. UNITED STATES, 257
U.S. 591, HOWEVER, A CASE ALSO INVOLVING INTRASTATE PASSENGER FARES,
THIS COURT AFFIRMED THE DISTRICT COURT'S DISMISSAL OF A BILL BROUGHT TO
ANNUL THE COMMISSION'S ORDER WHEN THE SUBSTANTIALITY OF THE EVIDENCE
WAS SQUARELY IN ISSUE.  THE RECORD CONTAINED TESTIMONY THAT PHYSICAL
CHARACTERISTICS OF INTERSTATE AND INTRASTATE SERVICE, TYPE OF
EQUIPMENT, RUNNING TIME, AND ACCOMMODATIONS WERE SIMILAR, AND IN
ADDITION THERE WAS TESTIMONY OF THE MOST GENERAL SORT THAT
TRANSPORTATION CONDITIONS WITHIN THE STATE DID NOT JUSTIFY LOWER
RATES.  THERE WAS SOME INDICATION THAT TRAFFIC DENSITY IN NEW ENGLAND
WAS GREATER THAN IN NEW YORK. 

ALABAMA V. UNITED STATES, 283 U.S. 776, INVOLVED INTRASTATE RATES ON
FERTILIZER AND FERTILIZER MATERIALS.  THE ISSUE OF THE SUBSTANTIALITY
OF THE EVIDENCE TO SUPPORT THE COMMISSION'S FINDINGS WAS SQUARELY
PRESENTED.  THE RECORD CONTAINED NO EVIDENCE OF THE COST OF THE
INTRASTATE SERVICE.  INSTEAD THERE WAS GENERAL TESTIMONY THAT THE
CONDITIONS SURROUNDING INTRASTATE AND INTERSTATE TRANSPORTATION IN
ALABAMA WERE SUBSTANTIALLY SIMILAR, AND THAT THE WITNESSES KNEW OF NO
CONDITIONS IN ALABAMA THAT WOULD JUSTIFY DIFFERENT INTRASTATE RATES. 
THERE WAS SOME EVIDENCE THAT THE TONNAGE OF FERTILIZER MOVING
INTRASTATE WAS MUCH GREATER THAN THAT MOVING INTERSTATE, AND THAT TON
MILES PER LOADED CAR OF FERTILIZER WERE GREATER IN ALABAMA THAN IN THE
SOUTHERN DISTRICT AS A WHOLE.  EVIDENCE WAS INTRODUCED OF COMPETITION
FROM WAGONS ON SHORT, INTRASTATE HAULS.  YET IN SPITE OF THIS SPECIFIC
EVIDENCE TENDING TO SHOW, AS AGAINST THE MORE GENERAL TESTIMONY, THAT
CONDITIONS AFFECTING INTRASTATE TRAFFIC WERE NOT THE SAME AS THOSE
AFFECTING INTERSTATE TRAFFIC, THIS COURT SUSTAINED THE COMMISSION'S
ORDER, FINDING THAT THE QUESTION OF SIMILARITY OF TRANSPORTATION
CONDITIONS HAD BEEN "THOROUGHLY CANVASSED," AND THAT THE FINDINGS WERE
SUPPORTED BY EVIDENCE.  283 U.S., AT 779 AND N. 4. 

IN LOUISIANA PUB. SERV. COMM'N V. TEXAS & N.O.R. CO., 284 U.S. 125,
INVOLVING BOTH INTERSTATE AND INTRASTATE RATES ON SAND, GRAVEL, AND
SIMILAR MATERIALS IN WESTERN LOUISIANA, THIS COURT FOUND THAT THE FACTS
STATED IN THE OPINION WERE ADEQUATELY SUPPORTED BY THE EVIDENCE AND
WERE SUFFICIENT TO WARRANT THE ORDER PRESCRIBING HIGHER RATES.  THE
RECORD CONTAINED EVIDENCE AS TO GENERAL FREIGHT COSTS PER MILE IN
DIFFERENT STATES IN THE TERRITORY EMBRACING LOUISIANA, BUT NO
COMPARISON WAS MADE OF THE COSTS OF INTERSTATE AND INTRASTATE
TRANSPORTATION WITHIN THE STATE, AND THERE WAS NO EVIDENCE OF THE COST
OF TRANSPORTATION IN THE PARTICULAR PART OF LOUISIANA CONCERNED OR OF
THE PARTICULAR COMMODITIES ON WHICH HIGHER RATES WERE SOUGHT.  EVIDENCE
WAS INTRODUCED TO SHOW GENERAL FREIGHT DENSITY IN THE STATES IN THE
TERRITORY CONSIDERED, INTERSTATE AND INTRASTATE COMBINED, AND,
ACCORDING TO THE COMMISSION, 155 I.C.C.  247, 253, ABOUT NINETY PER
CENT OF THE MOVEMENTS OF THE PARTICULAR COMMODITIES INVOLVED WAS
INTRASTATE.  THERE WAS ALSO CONSIDERABLE EVIDENCE THAT BORE INDIRECTLY
ON TRAFFIC DENSITY IN THESE COMMODITIES:  TONNAGE MOVED IN EACH OF THE
STATES; PRODUCERS THROUGHOUT THE TERRITORY, IN LOUISIANA, AND IN
WESTERN LOUISIANA; TOTAL PRODUCTION IN WESTERN LOUISIANA; SHIPMENTS TO
PARTICULAR CONSUMERS; ESTIMATES, BASED ON THE LOUISIANA HIGHWAY PROGRAM
AND POPULATION STATISTICS, OF PROBABLE FUTURE CONSUMPTION.  IN ADDITION
THERE WAS THE USUAL GENERAL TESTIMONY ON SIMILARITY OF CONDITIONS, AND
REFERENCES TO COMMISSION FINDINGS IN EARLIER PROCEEDINGS ON THE SAME
QUESTION.  ALTHOUGH THE RECORD IS, AS TO THE ISSUE WE ARE HERE
CONCERNED WITH, ONE OF THE MOST EXTENSIVE IN ANY SEC. 13(4) CASE THAT
HAS BEEN BEFORE THE COURT, THERE IS LITTLE OR NO EVIDENCE SPECIFICALLY
DIRECTED TO TRANSPORTATION CONDITIONS IN THE SOUTHERN PART OF WESTERN
LOUISIANA, THE AREA TO WHICH THE LOUISIANA COMMISSION HAD SPECIFICALLY
REFUSED TO APPLY THE INTERSTATE LEVEL OF RATES. 

ANOTHER CASE IN WHICH THIS COURT FOUND THAT THERE WAS SUBSTANTIAL
EVIDENCE WAS FLORIDA V. UNITED STATES, 292 U.S. 1, INVOLVING INTRASTATE
RATES ON LOGS.  THE RECORD CONTAINED EVIDENCE BEARING ON THE COST OF
TRANSPORTING LOGS IN FLORIDA, AND INDICATING THAT EXISTING INTRASTATE
RATES DID NOT COVER THE COST OF THE SERVICE.  AS TO FREIGHT IN GENERAL,
THERE WAS EVIDENCE THAT COSTS PER GROSS TON-MILE WERE HIGHER ON THE
CARRIER'S LINES IN FLORIDA THAN FOR THE REST OF ITS SYSTEM, AND THAT
DENSITY ON ITS LINES IN FLORIDA, INTRASTATE AND INTERSTATE COMBINED,
WAS LESS THAN FOR ITS SYSTEM AS A WHOLE OR ITS SYSTEM EXCLUDING
FLORIDA.  THESE COMPARISONS INVOLVED THE QUESTION WHETHER EVIDENCE OF
GENERAL FREIGHT CONDITIONS COULD BE USED TO JUSTIFY RAISING RATES ON A
PARTICULAR COMMODITY.  THE CASE FURNISHED THE BEST EVIDENCE ON THE
PROBABILITY THAT INCREASED RATES WOULD INCREASE REVENUES BECAUSE THE
PROPOSED INTRASTATE RATES HAD ACTUALLY BEEN IN EFFECT FOR A PERIOD
BEFORE THE COURT SET ASIDE AN EARLIER ORDER OF THE COMMISSION.    IN
ILLINOIS COMMERCE COMM'N V. UNITED STATES, 292 U.S. 474, ALREADY
REFERRED TO IN CONNECTION WITH THE RULE THAT THERE NEED NOT BE FINDINGS
SEGREGATING INTERSTATE AND INTRASTATE EXPENSES, THE COURT ALSO FOUND
THAT THERE WAS SUBSTANTIAL EVIDENCE.  THE COMMISSION RELIED PRIMARILY
ON AN EXTENSIVE COST STUDY OF THE MOVEMENT OF ALL COMMODITIES IN THE
CHICAGO SWITCHING DISTRICT, A STUDY THAT DID NOT, HOWEVER, MAKE ANY
SEPARATION BETWEEN INTERSTATE AND INTRASTATE COSTS.  THERE WAS EVIDENCE
OF THE PHYSICAL CHARACTERISTICS OF THE SERVICE:  THAT INTERSTATE AND
INTRASTATE TRAFFIC WERE HANDLED IN THE SAME MANNER AND CARRIED ON THE
SAME TRAINS.  ON THE OTHER HAND, IT WAS SHOWN THAT AVERAGE INTRASTATE
HAULS WERE SHORTER THAN AVERAGE INTERSTATE HAULS, YET THE COMMISSION
HAD SET A SINGLE RATE NO MATTER WHAT THE LENGTH OF HAUL.  IN SPITE OF
THIS EVIDENCE INDICATING THAT AT LEAST ONE FACTOR UNDERLYING COSTS
FAVORED INTRASTATE TRAFFIC, THE COURT UPHELD THE COMMISSION'S ORDER. 

MISSISSIPPI EX REL. RICE V. UNITED STATES, 307 U.S. 610, CONCERNED
INTRASTATE RATES ON SAND, GRAVEL, FERTILIZER, AND FERTILIZER
MATERIALS.  THIS COURT AFFIRMED THE DISTRICT COURT PER CURIAM, CITING
CASES TO THE EFFECT THAT THE COMMISSION'S ORDERS WOULD BE SUSTAINED
WHEN SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE RECORD CONTAINED NO
EVIDENCE SEGREGATING COSTS BETWEEN INTRASTATE AND INTERSTATE TRAFFIC,
ALTHOUGH ONE WITNESS TESTIFIED GENERALLY THAT COSTS WERE LESS IN
MISSISSIPPI THAN IN NEIGHBORING STATES.  THERE WAS NO EVIDENCE ON
TRAFFIC DENSITY AS SUCH, BUT CONSIDERABLE FROM WHICH CONCLUSIONS AS TO
DENSITY MIGHT BE INFERRED.  THUS THERE WAS EVIDENCE OF THE TONNAGE OF
THE COMMODITIES INVOLVED THAT HAD BEEN MOVED BY THE CARRIERS,
INTRASTATE, INTERSTATE, AND TOTAL, DURING SELECTED ANNUAL PERIODS, AND
EVIDENCE OF POINTS OF PRODUCTION IN MISSISSIPPI.  THE CARRIERS RELIED
ON TESTIMONY THAT THE SAME SERVICE WAS RENDERED INTERSTATE AND
INTRASTATE TRAFFIC AND THE USUAL GENERAL EVIDENCE OF SIMILARITY OF
CONDITIONS.  AGAINST THIS WAS TESTIMONY THAT THE BULK OF INTRASTATE
MOVEMENTS WERE SINGLE-LINE, AND THAT, BECAUSE OF EXTRA SWITCHING AND
INSPECTION OF CARS AT SWITCHING POINTS, AND BECAUSE OF THE NECESSITY OF
KEEPING INTERCHANGE RECORDS, JOINT-LINE MOVEMENTS WERE MORE EXPENSIVE
THAN SINGLE-LINE.  DESPUTE CENTERED PRINCIPALLY ON WHETHER INCREASED
RATES WOULD INCREASE REVENUES.  EVIDENCE WAS INTRODUCED TO SHOW
INTENSIVE TRUCK COMPETITION, FACILITATED BY THE FACT THAT SHORT HAULS
FROM WAYSIDE GRAVEL PITS TO ALL POINTS IN THE STATE WERE POSSIBLE. 
OTHER EVIDENCE MINIMIZED THE SERIOUSNESS OF SUCH COMPETITION.  THE
RECORD CONTAINED LITTLE EVIDENCE OF CONDITIONS SURROUNDING THE
PRODUCTION AND TRANSPORTATION OF THE COMMODITIES IN OTHER PARTS OF THE
SOUTH, BUT THE COMMISSION RELIED TO SOME EXTENT ON ITS INVESTIGATION
INTO GENERAL CONDITIONS IN EARLIER PROCEEDINGS CONCERNED WITH
INTERSTATE RATES. 

NEW YORK V. UNITED STATES, 342 U.S. 882, AFFIRMING 98 F. SUPP. 855,
ANOTHER PER CURIAM AFFIRMANCE, RAISED INTRASTATE COMMUTER FARES TO THE
LEVEL OF INTERSTATE COMMUTER FARES.  A STUDY HAD BEEN MADE OF THE COST
OF THE INTRASTATE COMMUTER SERVICE, COSTS BEING APPORTIONED BETWEEN
THAT SERVICE AND OTHER SERVICE ON THE TRAINS STUDIED PRINCIPALLY ON THE
BASIS OF PASSENGER-MILE RATIOS.  THE RESULTS OF THE STUDY WERE USED BY
THE COMMISSION, HOWEVER, TO SHOW THAT INTRASTATE FARES DID NOT COVER
THE COST OF SERVICE, RATHER THAN TO CONTRAST INTRASTATE WITH COMPARABLE
INTERSTATE COSTS.  INTRASTATE COMMUTER SERVICE WAS OF MUCH HEAVIER
VOLUME THAN INTERSTATE, BOTH IN NUMBER OF PASSENGERS AND PASSENGER
MILES, BUT THE COMMISSION POINTED OUT THAT INCREASED COSTS FROM SUCH
DENSITY WENT FAR TO OFFSET ITS ADVANTAGES.  WEAR AND TEAR ON EQUIPMENT
WAS INCREASED, AND SINCE TRAFFIC WAS CONCENTRATED AT RUSH HOURS,
ADDITIONAL CREWS AND EQUIPMENT NEEDED TO HANDLE IT WERE IDLE DURING THE
REST OF THE DAY.  THERE WAS EVIDENCE THAT INTRASTATE TRAINS MADE MORE
STOPS THAN INTERSTATE TRAINS AND USED COACHES THAT WERE OLDER, MORE
CROWDED, AND NOT AIR-CONDITIONED.  YET THESE DIFFERENCES WERE FOUND NOT
TO JUSTIFY A LOWER FARE. 

IN KING V. UNITED STATES, 344 U.S. 254, THE PARTIES RAISED NO
QUESTION AS TO THE SUFFICIENCY OF THE EVIDENCE.  THE COURT OBSERVED,
HOWEVER, THAT EVIDENCE SUPPORTING THE FINDINGS APPEARED IN THE RECORD
AND THAT MUCH OF THE MATERIAL THAT HAD BEEN BEFORE THE COMMISSION IN
ITS INVESTIGATIONS INTO THE INTERSTATE RATES HAD ALSO BEEN BEFORE IT IN
THE SEC. 13 PROCEEDINGS.  344 U.S., AT 272.  THE RECORD DID CONTAIN
EVIDENCE OF OPERATING EXPENSES ALLOCATED TO FLORIDA TRAFFIC, INTERSTATE
AND INTRASTATE, BUT IT WAS ADMITTED THAT THE ALLOCATION WAS SIMPLY ON
THE BASIS OF THE PERCENTAGE OF REVENUE DERIVED FROM SUCH TRAFFIC, AND
THAT IT WAS IMPOSSIBLE ACCURATELY TO ASCERTAIN ACTUAL EXPENSES. 
HOWEVER, FOR ONE CARRIER, BECAUSE OF SPECIAL BOOKKEEPING, IT WAS
POSSIBLE TO SHOW THAT ACTUAL FREIGHT EXPENSES WERE HIGHER IN FLORIDA
THAN FOR THE REST OF ITS SYSTEM.  STATISTICS WERE INTRODUCED TO SHOW
THAT THE PERCENTAGE INCREASE IN NET RAILWAY OPERATING INCOME FOR
FLORIDA AND THE CARRIERS OPERATING IN FLORIDA HAD BEEN GREATER THAN FOR
THE SOUTHERN DISTRICT AS A WHOLE. 

AS TO DENSITY, THERE WAS EVIDENCE THAT THE DENSITY OF FREIGHT TRAFFIC
IN FLORIDA, AT LEAST FOR SOME CARRIERS, WAS LOWER THAN THAT FOR THEIR
WHOLE SYSTEMS OR THEIR SYSTEMS EXCLUDING FLORIDA.  AGAINST THIS THE
STATE COMMISSION INTODUCED EVIDENCE SHOWING THAT THERE HAD BEEN A
GREATER RELATIVE INCREASE IN TONNAGE ORIGINATED IN FLORIDA THAN ON THE
ENTIRE SYSTEMS OF THE THREE PRINCIPAL CARRIERS SERVING FLORIDA.  THERE
WAS EVIDENCE THAT INTRASTATE MOVEMENTS WERE MOSTLY BY LOCAL TRAINS ON
BRANCH LINES, AND THE PERCENTAGE OF BRANCH LINES IN FLORIDA WAS GREATER
THAN FOR THE REST OF THE CARRIERS' SYSTEMS.  BECAUSE OF OVERTIME WAGES,
SHORTER HAULS, MORE SWITCHING, THE NECESSITY OF FREQUENTLY MAKING AND
BREAKING UP TRAINS, SUCH LOCAL TRAINS WERE SHOWN TO BE MORE EXPENSIVE
TO OPERATE THAN THROUGH TRAINS.  THE COURT LEFT IT TO THE COMMISSION TO
WEIGH THE COMPETING CLAIMS OF ALL THIS EVIDENCE ON THE QUESTION OF
SIMILARITY OF CONDITIONS. 

IN RECENT YEARS THE COURT HAS, BY PER CURIAM AFFIRMANCE, DISPOSED OF
A NUMBER OF CASES INVOLVING CHALLENGES TO SEC. 13(4) ORDERS.  IN
TENNESSEE V. UNITED STATES, 346 U.S. 891, AFFIRMING 113 F. SUPP. 634, A
CASE INVOLVING INTRASTATE RATES ON COAL AND WOOD, THE DISTRICT COURT
HAD FOUND THAT THERE WAS SUBSTANTIAL EVIDENCE.  THE COMMISSION'S
REPORT, TENNESSEE INTRASTATE RATES AND CHARGES, 286 I.C.C. 41, STATED
THE PRINCIPAL EVIDENCE RELEVANT TO THE FINDING THAT INTRASTATE
CONDITIONS WERE NOT MORE FAVORABLE THAN INTERSTATE CONDITIONS.  THE
RESULTS OF A TRAFFIC STUDY, SEPARATELY LISTING INTERSTATE AND
INTRASTATE TERMINATIONS OF THE COMMODITIES INVOLVED, BORE INDIRECTLY ON
DENSITY.  A GREATER PROPORTION OF INTRASTATE THAN INTERSTATE TRAFFIC
WAS HANDLED IN COSTLY LOCAL TRAINS.  A COST STUDY BASED ON WAYBILLS
SHOWING AVERAGE LOAD, HAUL, AND RATES CHARGED WAS INTRODUCED TO SHOW
THAT INTRASTATE RATES PROVIDED A GREATER RETURN ABOVE COST THAN RATES
ON INTERSTATE MOVEMENTS; THE COMMISSION REJECTED THIS EVIDENCE ON THE
GROUND THAT THE INFORMATION IN THE WAYBILLS WAS UNRELIABLE. 

IN LOUISIANA PUB. SERV. COMM'N V. UNITED STATES, 348 U.S. 885,
AFFIRMING 125 F. SUPP. 180, THE DISTRICT COURT HAD ALSO FOUND THAT
THERE WAS SUBSTANTIAL EVIDENCE.  THE COMMISSION IN ITS REPORT,
LOUISIANA INTRASTATE FREIGHT RATES AND CHARGES, 291 I.C.C. 279, RELIED
ON EVIDENCE THAT GENERALLY INTRASTATE TRAFFIC WAS CARRIED IN THE SAME
TRAINS WITH THE SAME CREWS AS INTERSTATE TRAFFIC AND UNDER NO MORE
FAVORABLE OPERATING CONDITIONS, AND THAT IN FACT CONSIDERABLE
INTRASTATE TRAFFIC MOVED IN EXPENSIVE LOCAL TRAINS.  THERE WAS ALSO
EVIDENCE SEPARATELY STATING, AS BETWEEN INTRASTATE AND INTERSTATE
COMMERCE, THE TONNAGE OF THE VARIOUS COMMODITIES TERMINATED DURING A
TEST PERIOD. 

IN ILLINOIS CENTRAL R. CO. V. MISSISSIPPI PUB. SERV. COMM'N, 349 U.S.
908, AFFIRMING MISSISSIPPI PUB. SERV. COMM'N V. UNITED STATES, 124 F.
SUPP. 809, THE PRINCIPAL QUESTION BEFORE THE DISTRICT COURT HAD BEEN
THE SUFFICIENCY OF THE EVIDENCE.  AMONG THE CONSIDERATIONS THAT THAT
COURT RELIED ON IN SETTING ASIDE THE COMMISSION'S ORDER WAS THE FACT
THAT THE PASSENGER DEFICIT IN MISSISSIPPI WAS LOWER THAN FOR THE ENTIRE
SYSTEMS OF THE MISSISSIPPI CARRIERS, FOR THE REST OF THE SOUTH, OR FOR
THE COUNTRY AS A WHOLE.  IT FOUND THE EVIDENCE TOO UNSUBSTANTIAL,
FURTHERMORE, TO SUPPORT THE COMMISSION'S JUDGMENT THAT, IN SPITE OF
COMPETITION FROM OTHER FORMS OF TRANSPORTATION, INCREASED RATES WOULD
INCREASE REVENUE. 

FROM THIS REVIEW OF THE CASES IN THIS COURT, AND FROM A CONSIDERATION
OF OTHERS IN THE DISTRICT COURTS AND BEFORE THE COMMISSION, CERTAIN
CONCLUSIONS EMERGE THAT SHOULD BE DECISIVE IN DISPOSING OF THE CASE NOW
BEFORE US.  IN THE FIRST PLACE, THERE HAS BEEN IN MANY CASES ONLY THE
SLIGHTEST DIRECT EVIDENCE OF THE COST OF MOVING INTRASTATE TRAFFIC, AND
IN OTHER CASES THE RECORD IS WHOLLY DEVOID OF SUCH EVIDENCE.  AS IS
CLEAR FROM ILLINOIS COMMERCE COMM'N V. UNITED STATES, 292 U.S. 474, AND
KING V. UNITED STATES, 344 U.S. 254, SUCH EVIDENCE IS NOT REQUIRED WHEN
INTRASTATE AND INTERSTATE TRAFFIC ARE INTIMATELY BOUND TOGETHER.  THE
RECORDS IN MANY CASES CONTAINED EVIDENCE OF FACTORS AFFECTING COSTS,
BUT, ACCORDING TO THE TRAFFIC INVOLVED AND THE CHARACTER OF THE
INVESTIGATION, WHAT HAS BEEN DEEMED AN IMPORTANT FACTOR IN ONE CASE HAS
BEEN PASSED OVER IN SILENCE IN ANOTHER.  RELIANCE ON GENERAL TESTIMONY
CONCERNING SIMILARITY OF CONDITIONS HAS BEEN ALMOST UNIVERSAL AND, IN
SOME OF THE CASES CONSIDERED, SUCH EVIDENCE APPEARS TO HAVE PROVIDED
THE PRINCIPAL, IF NOT EXCLUSIVE, SUPPORT FOR THE COMMISSION'S FINDING. 

THE EVIDENCE INTRODUCED BEFORE THE COMMISSION TO SUPPORT A FINDING OF
SIMILARITY OF CONDITIONS VARIES WITH THE PURPOSE AND SCOPE OF THE
PROCEEDING.  THUS, AN INVESTIGATION UNDER SEC. 13(4) MAY INVOLVE
INTRASTATE RATES ON A SINGLE COMMODITY OR ON ALL FREIGHT TRAFFIC; IT
MAY INVOLVE THE RATE OF A SINGLE CARRIER OR ALL THE CARRIERS IN THE
STATE; IT MAY BE CONFINED TO RATES IN A CERTAIN PART OF THE STATE OR
EXTEND TO RATES AND FARES THROUGHOUT THE STATE.  OBVIOUSLY A SINGLE,
COMPREHENSIVE, EASILY APPLIED FORMULA FOR TESTING THE EVIDENCE REQUIRED
IN ALL THESE CASES CANNOT BE DEVISED WITHOUT CLOSING ONE'S EYES TO THE
RICH AND SHIFTING VARIETY OF SITUATIONS PRESENTED BY THE NATION'S
TRANSPORTATION SYSTEM, AND WITHOUT UNDULY CONFINING THE COMMISSION IN
ITS RESPONSIBILITY TO DEAL WITH THE INTERMINGLED INTERSTATE AND
INTRASTATE TRANSPORTATION OF A SINGLE SYSTEM. 

FINALLY, IT IS OF IMPORTANCE TO DISTINGUISH SEC. 13 PROCEEDINGS, SUCH
AS THOSE IN THE PRESENT CASE, THAT ACCOMPANY OR FOLLOW REGULATION OF
INTERSTATE RATES ON COMPARABLE TRAFFIC.  IN THESE CASES, IN DETERMINING
THE LEVEL AT WHICH INTERSTATE RATES SHOULD BE SET IN ORDER TO ASSURE A
GIVEN REVENUE, THE COMMISSION OFTEN PROCEEDS ON THE ASSUMPTION THAT
INTRASTATE RATES WILL BE RAISED TO THE SAME LEVEL OR PROPORTIONATELY
INCREASED.  OF COURSE UNIFORMITY OF RATES IS NOT THE GOAL OF FEDERAL
REGULATION, AND THE COMMISSION'S CONCLUSIONS IN THE INTERSTATE
PROCEEDINGS DO NOT JUSTIFY FOREGOING THE INQUIRY INTO INTRASTATE RATES
AND CONDITIONS REQUIRED BY SEC. 13.  BUT THE MANNER IN WHICH THE
COMMISSION CUSTOMARILY PROCEEDS IS STRONG EVIDENCE OF WHAT IS
PRACTICALLY POSSIBLE IN PERFORMING THE DIFFICULT REGULATORY TASK
IMPOSED BY THE STATUTE.  IT SHOULD BE RESPECTED BY THIS COURT IN
PRESCRIBING STANDARDS FOR THE COMMISSION'S GUIDANCE.  WHEN A SEC. 13
PROCEEDING FOLLOWS REGULATION OF RATES ON COMPARABLE INTERSTATE
TRAFFIC, FURTHERMORE, EVIDENCE INTRODUCED IN THE INTERSTATE
PROCEEDINGS, WHETHER THEY ARE GENERAL REVENUE PROCEEDINGS OR DIRECTED
TO SPECIFIC RATES, WILL, TO A GREATER OR LESS EXTENT, ALSO BEAR ON
CONDITIONS SURROUNDING THE MOVEMENT OF INTRASTATE TRAFFIC, AND IT MAY
NOT BE UNREASONABLE FOR THE COMMISSION TO ASSUME, IN THE ABSENCE OF
PERSUASIVE EVIDENCE TO THE CONTRARY, THAT THE CONCLUSIONS IT HAS DRAWN
FROM SUCH EVIDENCE ABOUT GENERAL CONDITIONS ARE EQUALLY APPLICABLE TO A
PARTICULAR STATE.  AS WAS STATED IN KING V. UNITED STATES, 344 U.S.
254, 272, "IN THE ABSENCE OF ANY SHOWING THAT IT IS NOT APPLICABLE TO
FLORIDA, THE EVIDENCE WHICH FORMS THE BASIS OF THE COMMISSION'S
NATIONWIDE ORDER BECOMES THE NATURAL BASIS FOR ITS FLORIDA ORDER." 

THE EVIDENCE IN THE PRESENT CASE.  - THE PRESENT CASE CONCERNS, WITH
EXCEPTIONS NOT NOW RELEVANT, ALL UTAH INTRASTATE FREIGHT RATES.  IT
FOLLOWS A GENERAL REVENUE PROCEEDING RAISING INTERSTATE RATES, AND
SEEKS TO APPLY THE SAME INCREASE THERE GRANTED TO INTRASTATE TRAFFIC. 

THE VALIDITY OF THE COMMISSION'S STATE-WIDE ORDER WAS NOT IMPAIRED
BECAUSE AS TO PARTICULAR TRAFFIC OR CARRIERS IN THE STATE A RATE
INCREASE MIGHT NOT BE JUSTIFIED.  IT MAY BE THAT AN INCREASE IN RATES
ON CERTAIN TRAFFIC WILL DECREASE REVENUES, OR THE OPERATIONS OF ONE
CARRIER MAY ALREADY BE EXCEPTIONALLY PROFITABLE.  FACTORS AFFECTING
COSTS MAY VARY THROUGHOUT THE STATE.  IN NEW YORK V. UNITED STATES, 257
U.S. 591, THE FACT THAT EVIDENCE INDICATED THAT ONE CARRIER HAD A MORE
FAVORABLE ROUTE WITH GREATER DENSITY THAN OTHERS DID NOT PRECLUDE AN
ORDER RAISING PASSENGER FARES ON A STATE-WIDE BASIS.  IF GENERAL ORDERS
ARE TO BE POSSIBLE AT ALL, AND SEC. 13(4) NECESSARILY IMPLIES THEM, THE
COMMISSION MUST BE ABLE TO PROCEED ON EVIDENCE TYPICAL OF GENERAL
CONDITIONS, SEE GEORGIA PUB. SERV. COMM'N V. UNITED STATES, 283 U.S.
765, 774, MAKING PROVISION AS IT DID IN THE PRESENT CASE FOR THE RE
EXAMINATION OF SPECIFIC RATES CLAIMED NOT TO FALL WITHIN THE FINDINGS. 
SEE RAILROAD COMM'N OF WISCONSIN V. CHICAGO, B.&Q.R. CO., 257 U.S. 563,
591; NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 196-199.    THE EVIDENCE
IN THE PRESENT CASE SAID TO BEAR ON THE CONDITIONS SURROUNDING THE
MOVEMENT OF INTERSTATE AND INTRASTATE TRAFFIC INCLUDED EVIDENCE OF THE
FOLLOWING:  ECONOMIC CONDITIONS IN UTAH, THE RATE OF RETURN ON THE
CARRIERS' NET PROPERTY INVESTMENT, NET RAILWAY OPERATING INCOME,
REVENUE PER TON-MILE, FREIGHT SERVICE RATIO, DENSITY, OPERATING
EFFICIENCY, THE CHARACTER OF THE SERVICE RENDERED INTERSTATE AND
INTRASTATE TRAFFIC, AND GENERAL SIMILARITY OF OPERATING CONDITIONS. 

THERE WAS GENERAL TESTIMONY FROM A NUMBER OF QUALIFIED WITNESSES THAT
INTERSTATE AND INTRASTATE TRAFFIC IN UTAH MOVED UNDER SUBSTANTIALLY
SIMILAR CONDITIONS, WERE CARRIED ON THE SAME TRAINS, HANDLED BY THE
SAME CREWS, AND ACCOUNTED FOR IN THE SAME MANNER, AND THAT GENERALLY NO
BETTER SERVICE WAS GIVEN INTERSTATE THAN INTRASTATE TRAFFIC.  THERE WAS
EVIDENCE THAT SO-CALLED "PIGGYBACK" SERVICE WAS USED EXCLUSIVELY FOR
INTERSTATE TRAFFIC, AND THAT TRAFFIC IN UTAH WAS MORE HEAVILY WEIGHTED
IN FAVOR OF MINE PRODUCTS MOVING IN CHEAP GONDOLA CARS THAN IN
NEIGHBORING STATES, BUT THERE WAS NO INDICATION THAT THESE
CONSIDERATIONS, INSOFAR AS THEY AFFECTED COSTS, WERE NOT IN FACT TAKEN
INTO ACCOUNT IN SETTING RATES ON THE PARTICULAR COMMODITIES INVOLVED. 

THE AVERAGE RATE OF RETURN ON NET PROPERTY INVESTMENT FOR THE FIVE
CLASS I CARRIERS SERVING UTAH, AND THEIR NET RAILWAY OPERATING INCOME,
WERE SHOWN TO HAVE DECLINED STEADILY SINCE 1950.  SINCE THESE FIGURES
WERE NOT BROKEN DOWN BETWEEN INTERSTATE AND INTRASTATE OPERATIONS
WITHIN UTAH, HOWEVER, NOR BETWEEN OPERATIONS IN UTAH AND OTHER STATES,
BUT INSTEAD EMBRACED THE CARRIERS' ENTIRE SYSTEMS, THE SHOWING OF A
DECLINE IS OF NO PROBATIVE VALUE ON SIMILARITY OF CONDITIONS
SURROUNDING THE MOVEMENT OF INTERSTATE AND INTRASTATE TRAFFIC.  THE
DECLINE MAY BE ATTRIBUTABLE AS MUCH TO ONE TRAFFIC AS TO THE OTHER.  IT
GOES INSTEAD TO ESTABLISH THE CARRIERS' NEED FOR ADDITIONAL REVENUE
FROM ONE SOURCE OR ANOTHER.  THE SAME MAY BE SAID OF THE EVIDENCE OF
PARTICULAR COSTS ENTERING INTO THE RENDERING OF FREIGHT SERVICE.  THERE
WAS EVIDENCE THAT WAGES ON THE ENTIRE SYSTEMS OF THE FIVE UTAH CLASS I
CARRIERS HAD RISEN 45.89% FROM 1948 TO 1953, THAT THEY WERE GENERALLY
HIGHER IN THE WESTERN DISTRICT THAN IN THE STATES FURTHER EAST, AND
THAT AVERAGE UNIT PRICES FOR MATERIALS AND SUPPLIES IN THAT DISTRICT
HAD RISEN 24.7% FROM 1949 TO 1954.  IN NONE OF THESE STATISTICS WERE
COSTS ATTRIBUTABLE TO INTERSTATE AND INTRASTATE TRAFFIC SEGREGATED AND
COMPARED. 

AS IN MOST SEC. 13(4) CASES, THE RECORD HERE CONTAINED NUMEROUS
STATISTICS SHOWING REVENUE PER TON-MILE.  REVENUE PER TON-MILE ON ALL
FREIGHT TRAFFIC IN UTAH, INTERSTATE AND INTRASTATE, HAD INCREASED LESS
BETWEEN 1939 AND 1952 THAN REVENUE PER TON-MILE FOR THE WESTERN
DISTRICT AND FOR THE COUNTRY AS A WHOLE.  ON THE OTHER HAND, THE
RESULTS OF A WAYBILL STUDY INTRODUCED BY THE UTAH COMMISSION SHOWED
THAT IN 1952 THE REVENUE PER TON-MILE FROM UTAH INTRASTATE SHIPMENTS
WAS GREATER THAN THAT FROM INTERSTATE SHIPMENTS THAT HAD ORIGINATED IN
UTAH.  BUT, AS THE INTERSTATE COMMERCE COMMISSION POINTED OUT IN ITS
REPORT, REVENUE PER TON-MILE TENDS TO BE LESS ON INTERSTATE TRAFFIC
BECAUSE AVERAGE HAULS ARE LONGER.  IN ANY EVENT, SINCE DIFFERENCES IN
REVENUE PER TON-MILE ARE OFTEN SIMPLY A REFLECTION OF THE FACT THAT
THERE ARE DIFFERENCES BETWEEN INTERSTATE AND INTRASTATE RATES, THEY ARE
NOT PROBATIVE OF THE RELATIVE COST FACTORS AFFECTING INTERSTATE AND
INTRASTATE TRAFFIC. 

I TURN NOW TO THE EVIDENCE THAT THE COURT FINDS, CONTRARY TO THE
COMMISSION, ESTABLISHES THAT ON THE WHOLE CONDITIONS SURROUNDING
INTRASTATE TRAFFIC ARE SUBSTANTIALLY MORE FAVORABLE THAN THOSE
SURROUNDING INTERSTATE TRAFFIC, AND REQUIRE OVERRULING THE DISTRICT
COURT AND SETTING ASIDE THE COMMISSION'S ORDER.  THIS EVIDENCE,
ACCORDING TO THE COURT, SO PREPONDERATES OVER THE GENERAL TESTIMONY ON
SIMILARITY OF CONDITIONS, REFERRED TO ABOVE, THAT THE COMMISSION WAS
BOUND TO ACCEPT IT AS DECISIVE. 

THERE WAS EVIDENCE SUCH AS INCREASE IN POPULATION, AUTOMOBILE
REGISTRATIONS, AND INCOME PAYMENTS TO INDIVIDUALS THAT JUSTIFIED A
CONCLUSION THAT ECONOMIC CONDITIONS IN UTAH HAD IMPROVED RELATIVELY
MORE THAN IN THE WESTERN DISTRICT AND THE UNITED STATES AS A WHOLE. 
ALTHOUGH THIS EVIDENCE MAY BE RELEVANT TO THE DENSITY OF TRAFFIC IN
UTAH AS COMPARED WITH OTHER STATES, OR THE DENSITY OF INTRASTATE AND
INTERSTATE TRAFFIC WITHIN UTAH, IT IS SO REMOTE THAT IT CANNOT
REASONABLY BE ARGUED THAT IT COMPELS A CONCLUSION ONE WAY OR ANOTHER. 

THE COURT SUGGESTS THAT UTAH INTRASTATE TRANSPORTATION CONDITIONS
MUST BE MORE FAVORABLE BECAUSE THE RATE OF RETURN ON THE DENVER AND RIO
GRANDE WESTERN, WITH ALMOST HALF OF ITS OPERATIONS IN UTAH, IS GREATER
THAN THE RATE OF RETURN FOR THE SOUTHERN PACIFIC AND UNION PACIFIC. 
FOR THIS COURT TO DRAW SUCH AN INFERENCE PRESUPPOSES A NATURAL LAW OF
RAILROADING WITHIN THE COURT'S KNOWLEDGE OR TO WHICH IT CAN GAIN READY
ACCESS.  THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE HIGHER
RATE OF RETURN FOR THE D&RGW IS DUE TO THE FACT THAT A SUBSTANTIAL PART
OF ITS TRAFFIC IS UTAH INTRASTATE TRAFFIC.  IT MAY BE DUE TO ANY ONE OF
A NUMBER OF FACTORS:  THE RAILROAD AS A WHOLE MAY BE MORE EFFICIENTLY
OPERATED THAN THE UP OR THE SP; ITS ROUTES MAY BE MORE FAVORABLY
SITUATED OR THE OPERATIONS ON OTHER PARTS OF ITS SYSTEM PARTICULARLY
PROFITABLE; THE LOWER RATE FOR THE UP AND THE SP MAY BE DUE TO
CIRCUMSTANCES PRESENT ANYWHERE IN THEIR FAR-FLUNG EMPIRES. 

THE COURT FINDS THAT THERE WAS NO JUSTIFICATION FOR THE COMMISSION'S
CONCLUSION THAT DENSITY FIGURES INTRODUCED BY PETITIONERS WERE
UNRELIABLE.  SUCH A JUDGMENT BY THE COURT ON THE BASIS OF THESE
STATISTICS IS INDEED PUZZLING. 

EXHIBIT 64 COMPARES, FOR FOUR CLASS I CARRIERS IN UTAH, FREIGHT
DENSITY (TON-MILES PER MILE OF MAIN-LINE TRACK) FOR "INTRASTATE"
OPERATIONS WITH THIS DENSITY FOR EACH CARRIER'S SYSTEM AS A WHOLE.   IN
EACH CASE THE "INTRASTATE" DENSITY IS GREATER THAN THE SYSTEM DENSITY. 
IT IS IMPORTANT TO UNDERSTAND JUST WHAT IS BEING COMPARED IN THIS
EXHIBIT.  AS WAS ADMITTED BY PETITIONERS, THE "INTRASTATE" DENSITY IN
THE EXHIBIT IS NOT LIMITED TO TRAFFIC THAT, UNDER SEC. 1(2)(A) OF THE
ACT, 24 STAT. 379, AS AMENDED, 49 U.S.C. SEC. 1(2)(A), MOVES "WHOLLY
WITHIN ONE STATE."  YET IT IS THE COST OF MOVING ONLY SUCH INTRASTATE
TRAFFIC, TRAFFIC WHOLLY WITHIN THE STATE, THAT MUST BE ASCERTAINED AND
COMPARED WITH THE COST OF MOVING INTERSTATE TRAFFIC, BECAUSE ONLY THIS
KIND OF INTRASTATE TRAFFIC IS SUBJECT IN THE FIRST INSTANCE TO
REGULATION BY THE STATE.  INSTEAD, "INTRASTATE" DENSITY IN THE EXHIBIT
INCLUDES ALSO THAT PORTION OF INTERSTATE MOVEMENTS THAT LIES WITHIN
UTAH, WHETHER SUCH MOVEMENTS ORIGINATE OR TERMINATE THERE OR BRIDGE THE
STATE. 

THE COMPARISON IN THIS EXHIBIT, THEREFORE, IS BY NO MEANS PROBATIVELY
THE BEST WHEN THE PURPOSE IS TO SHOW THAT THE COST OF MOVING ONE TON
ONE MILE ON AN INTRASTATE JOURNEY IS LESS THAN IT WOULD BE ON AN
INTERSTATE JOURNEY.  THE MOST PERSUASIVE COMPARISON WOULD BE BETWEEN
THE AVERAGE DENSITY OF INTERSTATE TRAFFIC IN THE REGION TAKEN FOR THE
PURPOSES OF SETTING THE INTERSTATE RATES AND THE AVERAGE DENSITY OF
INTRASTATE TRAFFIC THAT MOVES WHOLLY WITHIN THE STATE.  THE INTERSTATE
DENSITY PROPERLY TAKEN INTO CONSIDERATION, BECAUSE IT IS THE DENSITY
THAT AFFECTS THE INTERSTATE RATES, IS THE AVERAGE DENSITY FOR THE
ENTIRE INTERSTATE JOURNEY INCLUDING THAT PART THAT LIES IN OTHER
STATES, BUT NOT INCLUDING THE INTRASTATE DENSITY IN THOSE STATES. 
THERE IS SOME, ALTHOUGH LESS, PROBATIVE VALUE IN A COMPARISON BETWEEN
THE DENSITY OF INTERSTATE TRAFFIC CONFINED TO INTERSTATE TRAFFIC WITHIN
THE STATE AND THE DENSITY OF INTRASTATE TRAFFIC.  FOR THIS COMPARISON
TO BE RELIABLE, DENSITY OF INTERSTATE TRAFFIC FOR THE ENTIRE REGION FOR
WHICH THE INTERSTATE RATES HAVE BEEN SET MUST BE ASSUMED TO BE
SUBSTANTIALLY THE SAME AS THE DENSITY OF INTERSTATE TRAFFIC WITHIN THE
STATE. 

THE COMPARISON IN EXHIBIT 64, BETWEEN INTERSTATE AND INTRASTATE
DENSITY ON THE CARRIERS' ENTIRE SYSTEMS AND INTERSTATE AND INTRASTATE
DENSITY IN UTAH, IS OF CONSIDERABLY LESS PROBATIVE VALUE THAN THESE TWO
COMPARISONS.  IT DOES NOT SHOW WHETHER UTAH INTRASTATE DENSITY IS IN
FACT GREATER OR LESS THAN INTERSTATE DENSITY EITHER IN UTAH OR ON THE
CARRIERS' ENTIRE SYSTEMS.  IT HAS SOME EVIDENTIARY VALUE, OF COURSE,
SINCE, IF OVER-ALL SYSTEM DENSITY IS LESS THAN OVER-ALL DENSITY WITHIN
THE STATE, THERE ARE PROBABLY FACTORS IN THE STATE GENERATING TRAFFIC
THAT DO NOT EXIST IN NEIGHBORING STATES.  THAT THESE FACTORS GENERATE
MORE INTRASTATE THAN INTERSTATE TRAFFIC, HOWEVER, IS A MATTER OF
SPECULATION, AND AVERAGE REGIONAL INTERSTATE DENSITY MAY STILL BE
HIGHER THAN INTRASTATE DENSITY WITHIN UTAH.  A COMPARISON SOMEWHAT
SIMILAR TO THAT IN EXHIBIT 64, AND IN FACT RELIED ON IN THE SECOND
FLORIDA CASE, GEORGIA PUB. SERV. COMM'N V. ATLANTIC C.L.R. CO., 186
I.C.C. 157, 164, IS A COMPARISON BETWEEN COMBINED INTERSTATE AND
INTRASTATE DENSITY WITHIN ONE STATE AND COMBINED INTERSTATE AND
INTRASTATE DENSITY ON THE BALANCE OF THE CARRIER'S SYSTEM IN
SURROUNDING STATES.  IT IS IMPOSSIBLE TO TELL FROM SUCH A COMPARISON
WHETHER OR NOT REGION-WIDE INTERSTATE DENSITY IS LESS THAN INTRASTATE
DENSITY IN THE PARTICULAR STATE INVOLVED, ALTHOUGH THAT IT IS MAY BE A
PERMISSIBLE JUDGMENT FOR THE COMMISSION TO MAKE BUT HARDLY FOR THIS
COURT TO IMPOSE UPON IT. 

THESE DISTINCTIONS ARE NECESSARY BECAUSE THE BEARING OF DENSITY ON
THE COST OF INTERSTATE AND INTRASTATE TRAFFIC IS UNLIKE THAT OF MANY
OTHER FACTORS.  THUS ROAD CONDITIONS, WAGES, AND COST OF FUEL IN A
STATE ARE LIKELY TO FALL WITH EQUAL EFFECT ON INTRASTATE TRAFFIC AND
INTERSTATE TRAFFIC AS IT PASSES THROUGH THE STATE.  AS TO THESE
CONDITIONS, A COMPARISON BETWEEN THOSE PREVAILING IN ONE STATE AND
SURROUNDING STATES IS HIGHLY RELEVANT.  SINCE INTERSTATE RATES TAKE
INTO ACCOUNT AVERAGE CONDITIONS THROUGHOUT THE REGION, IF CONDITIONS
ARE MORE FAVORABLE IN ONE STATE, INTRASTATE TRAFFIC MOVING ONLY UNDER
THOSE MORE FAVORABLE CONDITIONS SHOULD NOT HAVE TO PAY THE SAME RATE AS
INTERSTATE TRAFFIC. 

THE COMMISSION ITSELF DISCOUNTS THE IMPORTANCE OF THE DENSITY FIGURES
BECAUSE COMPARISON IS MADE OF DENSITY ON MAIN-LINE TRACK ONLY AND THAT
ON BRANCH LINES IS EXCLUDED.  HOWEVER, THE COURT FINDS THAT, SINCE
BRANCH-LINE DENSITY IS EXCLUDED BOTH FROM UTAH AND SYSTEM FIGURES, THE
OMISSION DOES NOT RENDER THE EVIDENCE UNRELIABLE.  THIS IS RIGHT IF,
AND ONLY IF, THE PROPORTION OF BRANCH LINE TO MAIN LINE IN UTAH IS THE
SAME AS FOR THE CARRIERS' SYSTEMS AS A WHOLE.  IF THERE IS
PROPORTIONATELY MORE LOW-DENSITY BRANCH-LINE TRACK IN UTAH, UTAH
DENSITY WILL BE RELATIVELY LOWER.  THE POSSIBILITY THAT SUCH IS IN FACT
THE CASE WAS MENTIONED AT THE HEARINGS (R. 294), AND PETITIONERS
INTRODUCED NO EVIDENCE TO SUPPLY THE DEFICIENCY IN THEIR EXHIBIT. 

THUS IT IS CLEAR THAT THERE WERE GOOD REASONS FOR REJECTING THE
EVIDENCE IN EXHIBIT 64, (FN1) BUT EVEN IF THE COMPARISON OFFERED WERE
THE BEST, THE COMMISSION SURELY WOULD NOT BE COMPELLED TO ACCEPT THE
DENSITY EVIDENCE AS CONCLUSIVE.  DENSITY IS ONLY ONE OF A MULTITUDE OF
FACTORS AFFECTING COSTS, AND WHAT IS GAINED BY HIGH DENSITY MAY BE LOST
BECAUSE OF SOME OTHER FACTOR.  HIGH DENSITY ITSELF, AS WAS SHOWN IN NEW
YORK V. UNITED STATES, 342 U.S. 882 (SEE 279 I.C.C. 151, 161), IS NOT
ALWAYS AN UNMITIGATED BLESSING, AND LOW INTERSTATE DENSITY MAY BE THE
RESULT OF RATE DISCRIMINATION RATHER THAN A JUSTIFICATION FOR IT. 

THE COURT ALSO RELIES ON EVIDENCE THAT THE FREIGHT SERVICE OPERATING
RATIO OF FOUR CLASS I CARRIERS OPERATING IN UTAH FOR 1950-1953 WAS MORE
FAVORABLE FOR OPERATIONS DESCRIBED IN THE EXHIBIT AS "INTRASTATE" THAN
FOR THE CARRIERS' ENTIRE SYSTEMS.  THE "INTRASTATE" TRAFFIC INCLUDED IN
THIS COMPARISON WAS THE SAME AS THAT USED IN THE DENSITY STATISTICS. 
MOREOVER, THE COMMISSION ITSELF REJECTED THE EVIDENCE BECAUSE OF AN
EVEN MORE FUNDAMENTAL CRITICISM OF THE METHOD USED TO SEGREGATE
EXPENSES ATTRIBUTABLE TO INTRASTATE TRAFFIC.  SINCE IT WAS IMPOSSIBLE
IN MANY INSTANCES TO ASCERTAIN ACTUAL EXPENSES, ALLOCATION HAD BEEN TO
A LARGE EXTENT SIMPLY ON THE BASIS OF THE NUMBER OF TRAIN MILES IN THE
STATE.  THE CARRIERS HAD LONG ATTACKED THIS METHOD OF ALLOCATION AS
ARTIFICIAL AND NOT REFLECTING THE ACTUAL COST OF SERVICE, AND THERE IS
NO JUSTIFICATION FOR OVERRIDING THE COMMISSION'S JUDGMENT ON THE
MATTER. 

THE UPSHOT IS THAT PETITIONERS PRODUCED NO EVIDENCE OF DISSIMILAR
CONDITIONS THAT WAS NOT OPEN TO SERIOUS CRITICISM AND THAT THE
COMMISSION WAS NOT JUSTIFIED IN REJECTING OR SEVERELY RESTRICTING IN
EFFECT.  THERE REMAINED TO SUPPORT THE COMMISSION'S FINDING THE GENERAL
TESTIMONY THAT INTERSTATE AND INTRASTATE TRAFFIC IN UTAH DID IN FACT
MOVE UNDER SUBSTANTIALLY SIMILAR CONDITIONS, AND ALSO THE EVIDENCE IN
THE EARLIER GENERAL REVENUE PROCEEDING TO ADJUST INTERSTATE RATES THAT,
AS WE RECOGNIZED IN KING V. UNITED STATES, 344 U.S. 254, 272, BECOMES
THE NATURAL BASIS FOR THE INTRASTATE ORDER IN THE ABSENCE OF ANY
SHOWING THAT IS IS NOT APPLICABLE.  THIS COURT HAS NEVER BEFORE
OVERTURNED AN ORDER OF THE COMMISSION UNDER SEC. 13(4) ON THE GROUND
THAT THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A FINDING OF REVENUE
DISCRIMINATION, ALTHOUGH THAT QUESTION HAS BEEN SQUARELY PRESENTED ON A
NUMBER OF OCCASIONS.  THE EVIDENCE IN THE PRESENT CASE WAS AS
SUBSTANTIAL AS THAT IN MANY OF THESE OTHER CASES, AND, UNDER AN
INTERPRETATION OF THE ACT THAT RESPECTS THE PRACTICAL DIFFICULTIES
FACING THE COMMISSION, SHOULD BE ENOUGH. 

THE COURT OBJECTS THAT THERE WAS "NO POSITIVE EVIDENCE" TO SUPPORT
THE COMMISSION'S FINDING, BUT IT DOES NOT SAY WHAT EVIDENCE ON WHAT
FACTORS AFFECTING COSTS, BEYOND THAT IN THE RECORD, WAS REQUIRED. 
SHOULD THERE HAVE BEEN EVIDENCE ON LENGTH OF HAUL, AVERAGE LOADING,
CARS PER TRAIN, GRADE CONDITIONS, VOLUME OF INTRASTATE TRAFFIC HANDLED
BY LOCAL TRAINS, SIZE OF CREWS?  THIS COURT CANNOT SAY IN EACH CASE
WHAT FACTORS WOULD BE SIGNIFICANT ENOUGH TO NECESSITATE EVIDENCE, AND
TO REQUIRE THAT THE RECORD CONTAIN EVIDENCE NEGATIVING ALL POSSIBLE
FACTORS WOULD BE AS PARALYZING AS TO REQUIRE FINDINGS TO THAT EFFECT. 
ONCE THERE IS EVIDENCE OF THE GENERAL NATURE HERE INTRODUCED, IT IS FOR
THOSE WHO CONTEND THAT INTRASTATE CONDITIONS ARE DISSIMILAR TO COME
FORWARD WITH CONVINCING EVIDENCE SHOWING WHAT SPECIFIC FACTORS
AFFECTING COSTS ARE MORE FAVORABLE.  STATEMENTS IN EARLIER OPINIONS OF
THE COURT INDICATE THAT SUCH IS IN FACT PRESENT LAW.  (FN2)  IT IS THE
ONLY WORKABLE SOLUTION.  AS MR. JUSTICE BRANDEIS SAID IN THE NEW
ENGLAND DIVISIONS CASE, 261 U.S. 184, 197, "OBVIOUSLY, CONGRESS
INTENDED THAT A METHOD SHOULD BE PURSUED BY WHICH THE TASK, WHICH IT
IMPOSED UPON THE COMMISSION, COULD BE PERFORMED." 

INTRASTATE PASSENGER OPERATIONS.  - THIS CONSIDERATION OF THE
FINDINGS THE COURT HAS REQUIRED IN SEC. 13(4) CASES, AND THE EVIDENCE
NECESSARY TO SUPPORT THEM, BEARS ON THE FAR-REACHING CONSEQUENCES, NOT
ADVERTED TO IN THE COURT'S OPINION, OF HOLDING THAT OUR DECISION IN
CHICAGO, MILWAUKEE, ST. P.&P.R. CO., V. ILLINOIS, 355 U.S. 300, IN SOME
MANNER APPLIES TO THE PRESENT CASE.  IT IS NOT CLEAR FROM THE COURT'S
OPINION WHETHER ON THE REMAND THE COMMISSION WILL BE REQUIRED TO MAKE
FINDINGS ON THE PROFITABLENESS OF INTRASTATE PASSENGER OPERATIONS, SUCH
AS WERE REQUIRED IN THE MILWAUKEE CASE FOR ALL INTRASTATE OPERATIONS,
OR ONLY ON THE SIMILARITY OF CONDITIONS SURROUNDING INTRASTATE AND
INTERSTATE PASSENGER TRAFFIC. 

IT WAS SETTLED IN KING V. UNITED STATES, 344 U.S. 254, THAT
INTERSTATE FREIGHT TRAFFIC COULD BE MADE TO SUPPORT INTERSTATE
PASSENGER TRAFFIC, AND INTRASTATE FREIGHT TRAFFIC TO SUPPORT INTRASTATE
PASSENGER TRAFFIC.  LEFT OPEN, BECAUSE THERE WAS NO INDICATION IN THE
RECORD THAT THE DEFICITS ARISING FROM THE TWO KINDS OF PASSENGER
TRAFFIC SIGNIFICANTLY DIFFERED, WAS THE QUESTION WHETHER INTRASTATE
FREIGHT TRAFFIC COULD BE MADE TO SUPPORT AN INTERSTATE PASSENGER
DEFICIT.  SUCH SUPPORT WOULD BE THE PRACTICAL EFFECT IF INTERSTATE
FREIGHT RATES ARE SET TO COMPENSATE FOR AN INTERSTATE PASSENGER
DEFICIT, AND INTRASTATE FREIGHT RATES ARE RAISED TO THE SAME LEVEL
ALTHOUGH INTRASTATE PASSENGER OPERATIONS ARE PROFITABLE OR RESULT IN A
SMALLER LOSS THAN INTERSTATE PASSENGER OPERATIONS.  THE QUESTION WAS
PRESENTED IN MISSISSIPPI PUB. SERV. COMM'N V. UNITED STATES, 124 F.
SUPP. 809, WHERE THE FAILURE OF THE COMMISSION TO TAKE INTO ACCOUNT A
LOWER PASSENGER DEFICIT IN MISSISSIPPI WAS ONE GROUND FOR THE DISTRICT
COURT'S SETTING ASIDE THE ORDER.  SINCE THERE WERE OTHER ISSUES IN THE
CASE, HOWEVER, OUR PER CURIAM AFFIRMANCE DID NOT NECESSARILY INDICATE A
VIEW ON THE QUESTION.  ILLINOIS CENTRAL R. CO. V. MISSISSIPPI PUB.
SERV. COMM'N, 349 U.S. 908.  THE PRECISE PROBLEM, FURTHERMORE, WAS NOT
CLEARLY SETTLED BY THE GENERAL HOLDING IN THE MILWAUKEE CASE THAT THERE
SHOULD BE FINDINGS "WHICH REFLECT THE COMMUTER SERVICE DEFICIT IN THE
TOTALITY OF INTRASTATE REVENUES  ...  ," 355 U.S. 300, 308, NOR,
STRICTLY SPEAKING, MUST THE QUESTION BE ANSWERED AT THIS POINT IN THE
PRESENT CASE THOUGH DOUBTLESS IT WILL ARISE UNDER THE COURT'S
DISPOSITION ON THE REMAND. 

THERE IS NO APPARENT REASON WHY A LOWER PASSENGER DEFICIT, LIKE ANY
OTHER FAVORABLE CIRCUMSTANCE SURROUNDING INTRASTATE TRANSPORTATION,
WOULD NOT JUSTIFY A LOWER RATE ON INTRASTATE FREIGHT TRAFFIC.   IF
INTRASTATE TRAFFIC TAKEN AS A WHOLE CONTRIBUTES ITS FAIR SHARE TO
NEEDED REVENUES AND DOES NOT, FROM A REVENUE STANDPOINT, DISCRIMINATE
AGAINST INTERSTATE COMMERCE, WHAT JUSTIFICATION CAN THERE BE FOR A
FINDING OF DISCRIMINATION THAT IS POSSIBLE ONLY BECAUSE A SEGMENT OF
INTRASTATE TRAFFIC IS CONSIDERED IN ISOLATION?  RAISING RATES IN THIS
SITUATION MAY HAVE THE EFFECT OF COMPELLING INTRASTATE COMMERCE TO
CONTRIBUTE MORE THAN ITS FAIR SHARE. 

IT DOES NOT NECESSARILY FOLLOW THAT THE COMMISSION SHOULD BE REQUIRED
TO MAKE FINDINGS, SUPPORTED BY EVIDENCE IN THE RECORD, THAT THE
INTRASTATE PASSENGER DEFICIT IS NOT LOWER THAN THE INTERSTATE, OR ABOUT
THE PROFITABLENESS OF, OR CIRCUMSTANCES SURROUNDING, ANY SEGMENT OF
INTRASTATE OPERATIONS WITH WHICH IT IS NOT IMMEDIATELY CONCERNED. 
INDEED, THE CONSEQUENCES THAT FOLLOW IN THE TRAIN OF SUCH A REQUIREMENT
DEMONSTRATE THAT IT EXALTS FORMAL CONSISTENCY OVER SOUND POLICY.  IN
THE FIRST PLACE, IF THE COMMISSION MUST DETERMINE THE PROFITABLENESS OF
INTRASTATE PASSENGER OPERATIONS, IT WILL OF COURSE BE COMPELLED TO
SEGREGATE REVENUES AND COSTS ATTRIBUTABLE TO INTRASTATE AND INTERSTATE
TRAFFIC.  YET IT IS PRECISELY THIS THAT IN ILLINOIS COMMERCE COMM'N V.
UNITED STATES, 292 U.S. 474, AND THE KING CASE WE SAID, URGED ON BY THE
DIFFICULTY OF ACCURATE ALLOCATION, WAS NOT REQUIRED WHEN INTERSTATE AND
INTRASTATE TRAFFIC WERE MINGLED TOGETHER. 

ANOTHER CONSEQUENCE OF THE COURT'S DECISION APPEARS TO BE THAT EVERY
CASE INVOLVING AN INTRASTATE RATE CLAIMED TO RESULT IN A REVENUE
DISCRIMINATION MUST BE BROADENED INTO A GENERAL INQUIRY INTO ALL
INTRASTATE RATES AND THE PROFITABLENESS OF, OR CIRCUMSTANCES
SURROUNDING, ALL INTRASTATE TRAFFIC.  THE RESULT WOULD BE A RADICAL,
AND IN ALL LIKELIHOOD UNWORKABLE, CHANGE IN THE WAY THE COMMISSION HAS
ADMINISTERED THE PROVISIONS OF SEC. 13(4) FOR OVER 35 YEARS.  THE
COMMISSION'S REPORTS ARE FULL OF CASES IN WHICH INTRASTATE RATES ON ONE
COMMODITY OR GROUP OF COMMODITIES, OR ON TRAFFIC IN ONLY ONE PART OF A
STATE, HAVE BEEN TESTED FOR DISCRIMINATION WITHOUT REFERENCE TO THE
ENTIRE INTRASTATE PICTURE.  THE WISCONSIN CASE ITSELF RAISED PASSENGER
FARES WITHOUT CONSIDERATION OF OTHER INTRASTATE OPERATIONS, AND THE
CHICAGO SWITCHING CASE, ILLINOIS COMMERCE COMM'N V. UNITED STATES, 292
U.S. 474, CONCERNED ONLY SEGMENTS OF ILLINOIS AND INDIANA INTRASTATE
TRAFFIC.  THE POSSIBLE DISRUPTIVE EFFECT OF REQUIRING THE COMMISSION TO
PROCEED BY GIANT, STATE-WIDE STRIDES, RATHER THAN BY STEPS DESIGNED TO
RELIEVE DISCRIMINATION FROM A PARTICULAR SEGMENT OF INTRASTATE
COMMERCE, IS ALONE SUFFICIENT TO CAST DOUBT ON THE WISDOM OF THE
COURT'S DECISION AND TO REQUIRE A CLOSE SCRUTINY OF THE MILWAUKEE CASE
TO DETERMINE IF THE RULE THERE SET FORTH IS NOT IN FACT CONFINED TO THE
SPECIAL SITUATION THAT GAVE RISE TO IT.  (FN3) 

THE MILWAUKEE CASE INVOLVED INTRASTATE FARES ON COMMUTER SERVICE THAT
WAS FOR ALL PRACTICAL PURPOSES TOTALLY SEPARATE FROM THE INTERSTATE
OPERATIONS OF THE CARRIER.  THERE HAD BEEN NO PREVIOUS PROCEEDINGS TO
SET THE FARES ON COMPARABLE INTERSTATE TRAFFIC BECAUSE IN FACT THERE
WAS NO SIGNIFICANT COMPARABLE INTERSTATE TRAFFIC WITH WHICH THE
INTRASTATE TRAFFIC WAS MINGLED.  INTRASTATE FARES WERE NOT RAISED TO A
LEVEL OF INTERSTATE FARES THAT HAD PREVIOUSLY BEEN DETERMINED TO BE
REASONABLE; INSTEAD, THEY WERE RAISED TO A LEVEL THAT THE COMMISSION
DECIDED, AFTER CONSIDERING THE INTRASTATE TRAFFIC ALONE, WOULD
CONTRIBUTE A FAIR SHARE TO REVENUES.  IN SUCH A CONTEXT A DETERMINATION
OF DISCRIMINATION TOO EASILY BECOMES SIMPLY AN INQUIRY INTO
REASONABLENESS, AN INQUIRY THE COMMISSION IS NOT EMPOWERED TO MAKE IN
RESPECT TO INTRASTATE FARES.  BY BEING COMPELLED TO MAKE FINDINGS
REFLECTING A BROADER VIEW OF THE PROFITABLENESS OF INTRASTATE
OPERATIONS, THE COMMISSION IS MADE TO GIVE ASSURANCE THAT INTRASTATE
COMMERCE HAS IN FACT BEEN COMPARED WITH INTERSTATE COMMERCE AND
DISCRIMINATION FOUND.  A BROAD COMPARISON BETWEEN INTERSTATE AND
INTRASTATE OPERATIONS IS NECESSARY BECAUSE, IN THIS SPECIAL SITUATION,
A NARROW COMPARISON IS NOT POSSIBLE.  (FN4) 

IT IS A VERY DIFFERENT MATTER WHEN THERE IS COMPARABLE INTERSTATE
TRAFFIC AND INTRASTATE RATES ARE RAISED TO THE LEVEL OF RATES ON THAT
TRAFFIC ALREADY DETERMINED TO BE REASONABLE.  THIS WAS THE CASE IN NEW
YORK V. UNITED STATES, 342 U.S. 882, AFFIRMING 98 F. SUPP. 855, ALSO
INVOLVING INTRASTATE SUBURBAN FARES, AND THERE WAS NO SUGGESTION THAT
THE COMMISSION WAS BOUND TO LOOK TO THE TOTALITY OF INTRASTATE
OPERATIONS.  THE FACT THAT A COMPARISON OF RATES ON SIMILAR TRAFFIC IS
POSSIBLE GIVES A GREATER DEGREE OF ASSURANCE THAN WAS POSSIBLE IN THE
MILWAUKEE CASE THAT INTRASTATE TRAFFIC IS NOT BEING COMPELLED TO
CONTRIBUTE MORE THAN ITS FAIR SHARE TO NEEDED REVENUES, AND THAT IT IS
DISCRIMINATION RATHER THAN SIMPLY UNREASONABLENESS THAT THE COMMISSION
SEEKS TO REMEDY.  IN THIS SITUATION THE COMMISSION IS JUSTIFIED IN
CONSIDERING WHETHER A PARTICULAR SEGMENT OF INTRASTATE COMMERCE IS
CONTRIBUTING ITS FAIR SHARE TO REVENUES. 

OF COURSE, THOSE WHO CONTEND THAT INTRASTATE TRAFFIC AS A WHOLE IS
NOT DISCRIMINATING AGAINST INTERSTATE TRAFFIC MAY COME FORWARD AND
SHOW, AS THEY MAY IN RESPECT TO ANY CLAIMED DISSIMILARITY OF CONDITIONS
SURROUNDING INTERSTATE AND INTRASTATE TRAFFIC, SOME FAVORABLE ASPECT OF
INTRASTATE OPERATIONS THAT THE COMMISSION SHOULD TAKE INTO ACCOUNT.  IN
THE ABSENCE OF SUCH A SHOWING, HOWEVER, THE COMMISSION SHOULD BE ABLE
TO ASSUME THAT DISCRIMINATION SHOWN TO EXIST AS TO THE PARTICULAR
SEGMENTS OF INTRASTATE AND INTERSTATE TRAFFIC WITH WHICH THE SEC. 13(4)
PROCEEDING IS CONCERNED IS NOT OFFSET BY OTHER CONDITIONS THAT THIS
COURT SPECULATES MAY AFFECT WHOLLY DIFFERENT SEGMENTS OF INTRASTATE
COMMERCE.  THE RECORD IN THE PRESENT CASE IS DEVOID OF THE REMOTEST
SUGGESTION THAT THE UTAH INTRASTATE PASSENGER DEFICIT IS ANY LESS THAN
THE INTERSTATE PASSENGER DEFICIT, AND THE COMMISSION SHOULD NOT BE
REQUIRED TO SEEK OUT SUCH EVIDENCE ITSELF AND MAKE FINDINGS BEYOND
THOSE IT HAS ALREADY MADE. 

THIS IS A SOLUTION THAT ACCOMMODATES IMPONDERABLES AND DOES NOT
DEMAND PRECISION WHERE THE NATURE OF THE SUBJECT CAN YIELD ONLY
APPROXIMATIONS.  IT IS A SOLUTION RESPONSIVE TO THE DIFFICULT
REGULATORY PROBLEMS POSED BY SEC. 13(4).  EMBEDDED IN IT ARE SOME OF
THE ADVANTAGES IN SIMPLICITY OF ADMINISTRATION THAT WOULD FOLLOW IF
THIS COURT HAD EXPANDED, AS IT MIGHT WELL HAVE DONE, THE DOCTRINE OF
DISCRIMINATION AGAINST PERSONS OR LOCALITIES TO PERMIT STATE-WIDE
ORDERS PROTECTING ALL INTERSTATE SHIPPERS AGAINST DISCRIMINATION
WITHOUT REFERENCE TO REVENUES.  AT THE SAME TIME, THERE REMAINS AN
OPPORTUNITY FOR INTRASTATE SHIPPERS OR A STATE COMMISSION TO SHOW TO
THE INTERSTATE COMMERCE COMMISSION'S SATISFACTION THE EXISTENCE OF
SPECIFIC FACTORS FAVORING INTRASTATE TRAFFIC IN GENERAL THAT SHOULD NOT
WISELY BE IGNORED.  IT IS THE SOLUTION THAT SEEMS BEST DESIGNED TO
ACHIEVE THE PURPOSES OF THE ACT WITHOUT INTERPOSING INSURMOUNTABLE
OBSTACLES TO THE EFFECTIVE REGULATION OF THE NATIONAL TRANSPORTATION
SYSTEM, THE RESPONSIBILITY FOR WHICH REST, AFTER ALL, PREDOMINANTLY
WITH THE INTERSTATE COMMERCE COMMISSION. 

FN1  THE RECORD ALSO CONTAINS EVIDENCE THAT IN 1952 AND 1953 DENSITY
FOR THE DENVER AND RIO GRANDE WESTERN WAS HIGHER ON ITS LINES IN UTAH
THAN ON ITS LINES IN COLORADO OR FOR ITS SYSTEM AS A WHOLE.  SUCH A
COMPARISON, AS ALREADY POINTED OUT, DOES NOT SHOW THAT UTAH INTRASTATE
DENSITY FOR THE D&RGW IS IN FACT HIGHER THAN INTERSTATE DENSITY OVER
THE CARRIER'S ENTIRE SYSTEM.  FURTHERMORE, THE SYSTEM OF THE D&RGW IS
CONFINED ALMOST COMPLETELY TO UTAH AND COLORADO, AND THERE WAS NO
SHOWING THAT THE DENSITY FIGURES COULD NOT BE EXPLAINED ON THE BASIS OF
SPECIAL CONDITIONS IN COLORADO, RATHER THAN BY MORE FAVORABLE
CONDITIONS IN UTAH COMPARED WITH THE WESTERN DISTRICT AS A WHOLE.  THE
SAME CRITICISM CAN BE MADE OF THE EVIDENCE THAT OPERATING EFFICIENCY ON
THE D&RGW - TONS PER FREIGHT CAR LOADED, TONS PER TRAIN, TONS PER
LOCOMOTIVE, ETC. - IS MORE FAVORABLE IN UTAH THAN COLORADO. 

THERE WAS ALSO CONSIDERABLE EVIDENCE, TAKEN FROM ACTUAL FREIGHT
BILLS, OF TONNAGE TERMINATED IN UTAH DURING A FOUR-MONTH TEST PERIOD IN
1953-1954, IN SOME INSTANCES SEGREGATED BETWEEN INTERSTATE AND
INTRASTATE MOVEMENTS.  HOWEVER, SINCE ALL INTERSTATE MOVEMENTS DURING
THE PERIOD WERE ADMITTEDLY NOT INCLUDED, THE EVIDENCE PROVIDES NO BASIS
FOR RELIABLE CONCLUSIONS ABOUT DENSITY. 

EVIDENCE OF THE RELATIVE VOLUME OF INTERSTATE AND INTRASTATE
MOVEMENTS OF PARTICULAR COMMODITIES, SUCH AS COAL, ORES, AND
CONCENTRATES, ARE NO NECESSARY INDICATION OF OVER-ALL FREIGHT DENSITY,
AND THEREFORE OF LITTLE ASSISTANCE ON THIS QUESTION IN A PROCEEDING TO
RAISE ALL FREIGHT RATES.  WHEN THE SEC. 13(4) PROCEEDING IS CONCERNED
WITH RATES ON CERTAIN COMMODITIES ONLY, IT IS FOR THE COMMISSION TO
DECIDE WHAT DENSITY COMPARISONS ARE SIGNIFICANT, WHETHER OF OVER-ALL
FREIGHT TRAFFIC, MOVEMENTS OF THE PARTICULAR COMMODITIES, OR MOVEMENTS
RESTRICTED TO A PARTICULAR REGION.  SEE, E.G., INDIANAPOLIS CHAMBER OF
COMMERCE V. CLEVELAND, C., C. & ST. L.R. CO., 60 I.C.C. 67, 74. 

FN2  KING V. UNITED STATES, 344 U.S. 254, 264-265:  "IN THE INSTANT
CASE, HOWEVER, THERE IS NO SHOWING THAT THE CHARACTER OF OPERATING
CONDITIONS IN FLORIDA INTRASTATE PASSENGER TRAFFIC DIFFERS
SUBSTANTIALLY FROM THAT OF INTERSTATE PASSENGER OPERATIONS IN THE
SOUTHERN TERRITORY GENERALLY."  UNITED STATES V. LOUISIANA, 290 U.S.
70, 79:  "IT SUFFICED THAT THE COMMISSION FOUND THAT LOUISIANA SHOWED
NOTHING IN THE CIRCUMSTANCES OF ITS AGRICULTURE AND INDUSTRY OR ITS
TRAFFIC CONDITIONS SO DIFFERENT FROM THE REST OF THE COUNTRY AS TO LEAD
TO THE CONCLUSION THAT THE INTRASTATE RATES, RAISED TO THE REASONABLE
GENERAL INTERSTATE LEVEL, WOULD NOT THEMSELVES BE REASONABLE  ...  ." 

FN3  A RECENT REPORT ON THE "PROBLEMS OF THE RAILROADS" OF THE
SUBCOMMITTEE ON SURFACE TRANSPORTATION OF THE SENATE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, ISSUED AFTER EXTENSIVE HEARINGS ON THE
DEPRESSED CONDITIONS IN THE INDUSTRY, EXPRESSES DEEP CONCERN OVER THE
IMPLICATIONS OF THE MILWAUKEE DECISION, AND SPECIFICALLY PROPOSES
LEGISLATION TO FORESTALL WHAT APPEAR TO BE THE CONSEQUENCES OF THE
PRESENT DECISION: 

"FROM THE TESTIMONY, IT IS CLEAR THAT THIS OPINION OF THE SUPREME
COURT IN THE MILWAUKEE CASE NOT ONLY PLACES AN INTOLERABLE BURDEN UNDER
PRESENT ACCOUNTING PRACTICES, BUT IN ADDITION PRESENTS AN ALMOST
IMPOSSIBLE OBSTACLE BECAUSE OF THE PROBLEM OF SEGREGATING INTRASTATE
AND INTERSTATE EXPENSES OF RAIL OPERATION.  FURTHER THE SUBCOMMITTEE
THINKS THAT EACH SERVICE SHOULD STAND ON ITS OWN FEET, SUPPORTED BY
RATES THAT ARE COMPENSATORY.    "FEAR HAS BEEN EXPRESSED THAT THIS CASE
MIGHT BE CONSTRUED AS REQUIRING THAT THE FINDING OF 'UNDUE,
UNREASONABLE, OR UNJUST DISCRIMINATION AGAINST, OR UNDUE BURDEN ON,
INTERSTATE OR FOREIGN COMMERCE' STIPULATED BY THE ACT BE MADE ONLY IN
THE LIGHT OF THE OVERALL, STATEWIDE TOTALITY OF A CARRIER'S OPERATING
RESULTS DERIVING FROM THE ENTIRE BODY OF THAT CARRIER'S RATES
APPLICABLE WITHIN THE STATE, THUS PRECLUDING SUCH A FINDING ON A
SHOWING OF ONLY THE EFFECT OF THE PARTICULAR RATE OR RATES IN ISSUE. 
TO PROTECT AGAINST SUCH AN INTERPRETATION OF THE MILWAUKEE CASE IT IS
PROPOSED TO PROVIDE THAT THE COMMISSION, IN DETERMINING WHETHER ANY
INTRASTATE RATE CAUSES DISCRIMINATION AGAINST, OR BURDEN ON, INTERSTATE
COMMERCE, NEED NOT CONSIDER IN TOTALITY THE OVERALL STATEWIDE RESULTS
OF THE CARRIER'S OPERATIONS BUT NEED CONSIDER ONLY THE EFFECT OF THE
PARTICULAR RATE OR RATES IN ISSUE."  REPORT OF THE SUBCOMMITTEE ON
SURFACE TRANSPORTATION OF THE SENATE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, COMMITTEE PRINT, 85TH CONG., 2D SESS. 15 (APRIL 30,
1958). 

THE LEGISLATIVE PROPOSALS OF THE SUBCOMMITTEE HAVE BEEN EMBODIED IN A
BILL INTRODUCED IN THE SENATE ON MAY 8, 1958.  S. 3778, 85TH CONG., 2D
SESS. 

FN4  ARE WE TO ASSUME THAT THE MILWAUKEE CASE HAS, SUB SILENTIO,
OVERRULED ILLINOIS V. UNITED STATES, 342 U.S. 930, AFFIRMING 101 F.
SUPP. 36, WHERE THE INTRASTATE SUBURBAN SERVICE WAS ALMOST WHOLLY
DISTINCT FROM THE CARRIER'S OTHER OPERATIONS? 
..END :












HOAG V. NEW JERSEY 356 U.S. 464 


NO. 40.  ARGUED NOVEMBER 19, 1957 - DECIDED MAY 19, 1958 - 21 N.J. 496,
122 A.2D 628, AFFIRMED. 


IN A NEW JERSEY STATE COURT, PETITIONER WAS TRIED AND ACQUITTED ON
THREE SEPARATE INDICTMENTS (JOINED FOR TRIAL) FOR STATUTORY ROBBERY OF
THREE PERSONS ON THE SAME OCCASION.  SUBSEQUENTLY, HE WAS INDICTED,
TRIED AND CONVICTED FOR ROBBING A FOURTH PERSON DURING THE SAME
OCCURRENCE.  HELD: HIS CONVICTION DID NOT VIOLATE THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 465-473. 

(A)  HE WAS NOT PUT TWICE IN JEOPARDY FOR THE SAME CRIME.  NEW JERSEY
CONSTRUES THE STATUTE UNDER WHICH HE WAS INDICTED AS MAKING EACH OF THE
FOUR ROBBERIES, THOUGH TAKING PLACE ON THE SAME OCCASION, A SEPARATE
OFFENSE; AND NOTHING IN THE DUE PROCESS CLAUSE PREVENTED THE STATE FROM
MAKING THAT CONSTRUCTION.  PP. 466-467. 

(B)  IN THE CIRCUMSTANCES OF THIS CASE, HE WAS NOT DEPRIVED OF DUE
PROCESS BY CONSECUTIVE TRIALS, EVEN THOUGH THE MULTIPLE OFFENSES AROSE
OUT OF THE SAME OCCURRENCE.  PP. 467-470. 

(C)  WHETHER STATES MUST APPLY COLLATERAL ESTOPPEL IN CRIMINAL TRIALS
NEED NOT BE DECIDED; BECAUSE THE STATE COURTS HELD THAT PETITIONER'S
ACQUITTAL DID NOT GIVE RISE TO SUCH AN ESTOPPEL, AND THIS COURT WOULD
NOT BE JUSTIFIED IN SUBSTITUTING ITS VIEW AS TO THE BASIS OF THE JURY'S
VERDICT.  PP. 470-472. 

(D)  IN THE CIRCUMSTANCES OF THIS CASE, HE WAS NOT DENIED A SPEEDY
TRIAL.  P. 472. 

(E)  THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE IDENTIFICATION OF
PETITIONER AS ONE OF THE ROBBERS IS A MATTER SOLELY WITHIN THE PROVINCE
OF THE STATE COURTS.  PP. 472-473. 

HOAG V. NEW JERSEY. 

CERTIORARI TO THE SUPREME COURT OF NEW JERSEY. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE ASKED TO SET ASIDE, UNDER THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT, A STATE CONVICTION SECURED UNDER SOMEWHAT
UNUSUAL CIRCUMSTANCES. 

ON JUNE 26, 1951, A BERGEN COUNTY, NEW JERSEY, GRAND JURY RETURNED
THREE INDICTMENTS AGAINST THE PETITIONER CHARGING THAT ON SEPTEMBER 20,
1950, IN CONCERT WITH TWO OTHERS, HE ROBBED THREE INDIVIDUALS, CASCIO,
CAPEZZUTO AND GALIARDO, AT GAY'S TAVERN IN FAIRVIEW, NEW JERSEY.  THESE
INDICTMENTS WERE JOINED FOR TRIAL.  THE STATE CALLED FIVE WITNESSES:
THE THREE VICTIMS NAMED IN THE INDICTMENT, AND TWO OTHER PERSONS,
DOTTINO AND YAGER.  DOTTINO AND YAGER WERE ALSO VICTIMS OF THE ROBBERY,
BUT THEY WERE NOT NAMED IN THE INDICTMENT.  ALL THE WITNESSES, AFTER
STATING THAT THEY WERE IN GAY'S TAVERN ON SEPTEMBER 20, TESTIFIED TO
THE ELEMENTS OF A ROBBERY AS DEFINED IN THE NEW JERSEY STATUTE:  (FN1)
THAT THEY WERE PUT IN FEAR AND THAT PROPERTY WAS TAKEN FROM THEIR
PERSONS.  THE PETITIONER, WHO CLAIMED THAT HE WAS NOT AT THE TAVERN ON
THE FATEFUL DAY AND TESTIFIED TO AN ALIBI, WAS THE SOLE WITNESS FOR THE
DEFENSE.  ALTHOUGH GALIARDO AND DOTTINO HAD BOTH IDENTIFIED PETITIONER
FROM A PHOTOGRAPH DURING THE POLICE INVESTIGATION, ONLY ONE OF THE
WITNESSES, YAGER, IDENTIFIED HIM AT THE TRIAL AS ONE OF THE ROBBERS. 
ON MAY 27, 1952, THE JURY ACQUITTED THE PETITIONER ON ALL THREE
INDICTMENTS. 

SUBSEQUENTLY, ON JULY 17, 1952, ANOTHER BERGEN COUNTY GRAND JURY
RETURNED A FOURTH INDICTMENT AGAINST PETITIONER, WHICH WAS THE SAME AS
THE FIRST THREE IN ALL RESPECTS EXCEPT THAT IT NAMED YAGER AS THE
VICTIM OF THE ROBBERY AT GAY'S TAVERN.  AT THE TRIAL UPON THIS
INDICTMENT THE STATE CALLED ONLY YAGER AS A WITNESS, AND HE REPEATED
HIS EARLIER TESTIMONY IDENTIFYING PETITIONER.  THE DEFENSE CALLED
CASCIO, CAPEZZUTO, GALIARDO AND DOTTINO, AND THEY EACH ONCE AGAIN
TESTIFIED EITHER THAT PETITIONER WAS NOT ONE OF THE ROBBERS OR THAT A
POSITIVE IDENTIFICATION WAS NOT POSSIBLE.  PETITIONER REPEATED HIS
ALIBI.  THIS TIME THE JURY RETURNED A VERDICT OF GUILTY.  THE
CONVICTION WAS SUSTAINED ON APPEAL IN BOTH THE SUPERIOR COURT OF NEW
JERSEY, 35 N.J. SUPER.  555, 114 A.2D 573, AND THE SUPREME COURT OF NEW
JERSEY, 21 N.J. 496, 122 A.2D 628.  WE GRANTED CERTIORARI TO CONSIDER
PETITIONER'S CLAIM, TIMELY RAISED BELOW, THAT HE WAS DEPRIVED OF DUE
PROCESS.  352 U.S. 907. 

PETITIONER CONTENDS THAT THE SECOND PROSECUTION GROWING OUT OF THE
GAY'S TAVERN ROBBERIES INFRINGED SAFEGUARDS OF THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT WHICH ARE "IMPLICIT IN THE CONCEPT OF
ORDERED LIBERTY" AND THAT THESE SAFEGUARDS AS SUCH ARE RESTRICTIONS ON
THE STATES.  PALKO V. CONNECTICUT, 302 U.S. 319, 325.  MORE
PARTICULARLY, IT IS SAID THAT PETITIONER'S TRIAL FOR THE ROBBERY OF
YAGER, FOLLOWING HIS PREVIOUS ACQUITTAL ON CHARGES OF ROBBING CASCIO,
CAPEZZUTO, AND GALIARDO, AMOUNTED TO TRYING HIM AGAIN ON THE SAME
CHARGES.  HOWEVER, IN THE CIRCUMSTANCES SHOWN BY THIS RECORD, WE CANNOT
SAY THAT PETITIONER'S LATER PROSECUTION AND CONVICTION VIOLATED DUE
PROCESS. 

AT THE OUTSET IT SHOULD BE MADE CLEAR THAT PETITIONER HAS NOT BEEN
TWICE PUT IN JEOPARDY FOR THE SAME CRIME.  THE NEW JERSEY COURTS, IN
REJECTING HIS CLAIM THAT CONVICTION FOR ROBBING YAGER VIOLATED THE
DOUBLE JEOPARDY CLAUSE OF THE STATE CONSTITUTION, (FN2) HAVE CONSTRUED
THE NEW JERSEY STATUTE AS MAKING EACH OF THE FOUR ROBBERIES, THOUGH
TAKING PLACE ON THE SAME OCCASION, A SEPARATE OFFENSE.  THIS
CONSTRUCTION WAS CONSISTENT WITH THE USUAL NEW JERSEY RULE THAT DOUBLE
JEOPARDY DOES NOT APPLY UNLESS THE SAME EVIDENCE NECESSARY TO SUSTAIN A
SECOND INDICTMENT WOULD HAVE BEEN SUFFICIENT TO SECURE A CONVICTION ON
THE FIRST.  SEE STATE V. DI GIOSIA, 3 N.J. 413, 419, 70 A.2D 756, 759;
STATE V. LABATO, 7 N.J. 137, 144, 80 A.2D 617, 620.  CERTAINLY NOTHING
IN THE DUE PROCESS CLAUSE PREVENTED THE STATE FROM MAKING THAT
CONSTRUCTION. 

BUT EVEN IF IT WAS CONSTITUTIONALLY PERMISSIBLE FOR NEW JERSEY TO
PUNISH PETITIONER FOR EACH OF THE FOUR ROBBERIES AS SEPARATE OFFENSES,
IT DOES NOT NECESSARILY FOLLOW THAT THE STATE WAS FREE TO PROSECUTE HIM
FOR EACH ROBBERY AT A DIFFERENT TRIAL.  THE QUESTION IS WHETHER THIS
CASE INVOLVED AN ATTEMPT "TO WEAR THE ACCUSED OUT BY A MULTITUDE OF
CASES WITH ACCUMULATED TRIALS."  PALKO V. CONNECTICUT, SUPRA, AT 328. 
(FN3) 

WE DO NOT THINK THAT THE FOURTEENTH AMENDMENT ALWAYS FORBIDS STATES
TO PROSECUTE DIFFERENT OFFENSES AT CONSECUTIVE TRIALS EVEN THOUGH THEY
ARISE OUT OF THE SAME OCCURRENCE.  THE QUESTION IN ANY GIVEN CASE IS
WHETHER SUCH A COURSE HAS LED TO FUNDAMENTAL UNFAIRNESS.  OF COURSE, IT
MAY VERY WELL BE PREFERABLE PRACTICE FOR A STATE IN CIRCUMSTANCES SUCH
AS THESE NORMALLY TO TRY THE SEVERAL OFFENSES IN A SINGLE PROSECUTION,
AND RECENT STUDIES OF THE AMERICAN LAW INSTITUTE HAVE LED TO SUCH A
PROPOSAL.  SEE MODEL PENAL CODE SEC. 1.08(2) (TENT.  DRAFT.  NO. 5,
1956).  (FN4)  BUT IT WOULD BE AN ENTIRELY DIFFERENT MATTER FOR US TO
HOLD THAT THE FOURTEENTH AMENDMENT ALWAYS PREVENTS A STATE FROM
ALLOWING DIFFERENT OFFENSES ARISING OUT OF THE SAME ACT OR TRANSACTION
TO BE PROSECUTED SEPARATELY, AS NEW JERSEY HAS DONE.  (FN5)  FOR IT HAS
LONG BEEN RECOGNIZED AS THE VERY ESSENCE OF OUR FEDERALISM THAT THE
STATES SHOULD HAVE THE WIDEST LATITUDE IN THE ADMINISTRATION OF THEIR
OWN SYSTEMS OF CRIMINAL JUSTICE.  SEE HURTADO V. CALIFORNIA, 110 U.S.
516; MAXWELL V. DOW, 176 U.S. 581; WEST V. LOUISIANA, 194 U.S. 258;
TWINING V. NEW JERSEY, 211 U.S. 78.  IN THE LAST ANALYSIS, A
DETERMINATION WHETHER AN IMPERMISSIBLE USE OF MULTIPLE TRIALS HAS TAKEN
PLACE CANNOT BE BASED ON ANY OVER-ALL FORMULA.  HERE, AS ELSEWHERE,
"THE PATTERN OF DUE PROCESS IS PICKED OUT IN THE FACTS AND
CIRCUMSTANCES OF EACH CASE."  BROCK V. NORTH CAROLINA, 344 U.S. 424,
427-428.  AND THUS, WITHOUT SPECULATING AS TO HYPOTHETICAL SITUATIONS
IN WHICH THE FOURTEENTH AMENDMENT MIGHT PROHIBIT CONSECUTIVE
PROSECUTIONS OF MULTIPLE OFFENSES, WE REACH THE CONCLUSION THAT THE
PETITIONER IN THIS CASE WAS NOT DEPRIVED OF DUE PROCESS. 

IN BROCK V. NORTH CAROLINA, SUPRA, THIS COURT UPHELD A STATE
CONVICTION AGAINST A SOMEWHAT SIMILAR CLAIM OF DENIAL OF DUE PROCESS. 
IN BROCK TWO OF THE STATE'S KEY WITNESSES HAD PREVIOUSLY BEEN TRIED AND
CONVICTED OF CRIMES ARISING OUT OF THE SAME TRANSACTION WHICH FORMED
THE BASIS OF THE CHARGE AGAINST THE PETITIONER.  BEFORE JUDGMENTS WERE
ENTERED ON THEIR CONVICTIONS THEY WERE CALLED BY THE STATE TO TESTIFY
AT PETITIONER'S TRIAL.  BECAUSE OF THEIR INTENTION TO APPEAL THEIR
CONVICTIONS AND THE LIKELIHOOD OF A NEW TRIAL IN THE EVENT OF REVERSAL,
THE TWO WITNESSES DECLINED TO TESTIFY AT PETITIONER'S TRIAL ON THE
GROUND THAT THEIR ANSWERS MIGHT BE SELF-INCRIMINATORY.  AT THIS POINT
THE STATE WAS GRANTED A MISTRIAL UPON ITS REPRESENTATION THAT THE
EVIDENCE OF THE TWO WITNESSES WAS NECESSARY TO ITS CASE AND THAT IT
INTENDED TO PROCURE THEIR TESTIMONY AT A NEW TRIAL OF THE PETITIONER. 
THIS COURT HELD THAT A SECOND TRIAL OF THE PETITIONER DID NOT VIOLATE
DUE PROCESS. 

REMEMBERING THAT THE YAGER ROBBERY CONSITUTED A SEPARATE OFFENSE FROM
THE ROBBERIES OF THE OTHER VICTIMS, WE FIND NO BASIS FOR A
CONSTITUTIONAL DISTINCTION BETWEEN THE CIRCUMSTANCES WHICH LED TO THE
RETRIAL IN BROCK AND THOSE SURROUNDING THE SUBSEQUENT INDICTMENT AND
TRIAL IN THE PRESENT CASE.  IT IS A FAIR INFERENCE FROM THE RECORD
BEFORE US THAT THE INDICTMENT AND TRIAL ON THE CHARGE OF ROBBING YAGER
RESULTED FROM THE UNEXPECTED FAILURE OF FOUR OF THE STATE'S WITNESSES
AT THE EARLIER TRIAL TO IDENTIFY PETITIONER, AFTER TWO OF THESE
WITNESSES HAD PREVIOUSLY IDENTIFIED HIM IN THE COURSE OF THE POLICE
INVESTIGATION.  INDEED, AFTER THE SECOND OF THE TWO WITNESSES FAILED TO
IDENTIFY PETITIONER, THE STATE PLEADED SURPRISE AND ATTEMPTED TO
IMPEACH HIS TESTIMONY.  WE CANNOT SAY THAT, AFTER SUCH AN UNEXPECTED
TURN OF EVENTS, THE STATE'S DECISION TO TRY PETITIONER FOR THE YAGER
ROBBERY WAS SO ARBITRARY OR LACKING IN JUSTIFICATION THAT IT AMOUNTED
TO A DENIAL OF THOSE CONCEPTS CONSTITUTING "THE VERY ESSENCE OF A
SCHEME OF ORDERED JUSTICE, WHICH IS DUE PROCESS."  BROCK V. NORTH
CAROLINA, SUPRA, AT 428.  THUS, WHATEVER LIMITS MAY CONFINE THE RIGHT
OF A STATE TO INSTITUTE SEPARATE TRIALS FOR CONCEDEDLY DIFFERENT
CRIMINAL OFFENSES, IT IS PLAIN TO US THAT THESE LIMITS HAVE NOT BEEN
TRANSGRESSED IN THIS CASE. 

PETITIONER FURTHER CONTENDS THAT HIS CONVICTION WAS CONSTITUTIONALLY
BARRED BY "COLLATERAL ESTOPPEL."  HIS POSITION IS THAT BECAUSE THE SOLE
DISPUTED ISSUE IN THE EARLIER TRIAL RELATED TO HIS IDENTIFICATION AS A
PARTICIPANT IN THE GAY'S TAVERN ROBBERIES, THE VERDICT OF ACQUITTAL
THERE MUST NECESSARILY BE TAKEN AS HAVING RESOLVED THAT ISSUE IN HIS
FAVOR.  THE DOCTRINE OF COLLATERAL ESTOPPEL, SO THE ARGUMENT RUNS, IS
GROUNDED IN CONSIDERATIONS OF BASIC FAIRNESS TO LITIGANTS, AND THUS FOR
A STATE TO DECLINE TO APPLY THE RULE IN FAVOR OF A CRIMINAL DEFENDANT
DEPRIVES HIM OF DUE PROCESS.  ACCORDINGLY, IT IS CLAIMED THAT NEW
JERSEY COULD NOT RELITIGATE THE ISSUE OF PETITIONER'S "IDENTITY," AND
IS THUS PRECLUDED FROM CONVICTING HIM OF ROBBING YAGER. 

A COMMON STATEMENT OF THE RULE OF COLLATERAL ESTOPPEL IS THAT "WHERE
A QUESTION OF FACT ESSENTIAL TO THE JUDGMENT IS ACTUALLY LITIGATED AND
DETERMINED BY A VALID AND FINAL JUDGMENT, THE DETERMINATION IS
CONCLUSIVE BETWEEN THE PARTIES IN A SUBSEQUENT ACTION ON A DIFFERENT
CAUSE OF ACTION."  RESTATEMENT, JUDGMENTS, SEC. 68(1).  AS AN ASPECT OF
THE BROADER DOCTRINE OF RES JUDICATA, COLLATERAL ESTOPPEL IS DESIGNED
TO ELIMINATE THE EXPENSE, VEXATION, WASTE, AND POSSIBLE INCONSISTENT
RESULTS OF DUPLICATORY LITIGATION.  SEE DEVELOPMENTS IN THE LAW - RES
JUDICATA, 65 HARV. L. REV. 818, 820.  ALTHOUGH THE RULE WAS ORIGINALLY
DEVELOPED IN CONNECTION WITH CIVIL LITIGATION, IT HAS BEEN WIDELY
EMPLOYED IN CRIMINAL CASES IN BOTH STATE AND FEDERAL COURTS.  SEE,
E.G., HARRIS V. STATE, 193 GA. 109, 17 S.E.2D 573; COMMONWEALTH V.
EVANS, 101 MASS.  25; UNITED STATES V. OPPENHEIMER, 242 U.S. 85;
SEALFON V. UNITED STATES, 332 U.S. 575; CF. YATES V. UNITED STATES, 354
U.S. 298, 335. 

DESPITE ITS WIDE EMPLOYMENT, WE ENTERTAIN GRAVE DOUBTS WHETHER
COLLATERAL ESTOPPEL CAN BE REGARDED AS A CONSTITUTIONAL REQUIREMENT. 
CERTAINLY THIS COURT HAS NEVER SO HELD.  HOWEVER, WE NEED NOT DECIDE
THAT QUESTION, FOR IN THIS CASE NEW JERSEY BOTH RECOGNIZED THE RULE OF
COLLATERAL ESTOPPEL AND CONSIDERED ITS APPLICABILITY TO THE FACTS OF
THIS CASE.  THE STATE COURT SIMPLY RULED THAT PETITIONER'S PREVIOUS
ACQUITTAL DID NOT GIVE RISE TO SUCH AN ESTOPPEL BECAUSE "THE TRIAL OF
THE FIRST THREE INDICTMENTS INVOLVED SEVERAL QUESTIONS, NOT JUST
PETITIONER'S IDENTITY, AND THERE IS NO WAY OF KNOWING UPON WHICH
QUESTION THE JURY'S VERDICT TURNED."  21 N.J., AT 505, 122 A.2D, AT
632.  POSSESSING NO SUCH CORRECTIVE POWER OVER STATE COURTS AS WE DO
OVER THE FEDERAL COURTS, SEE WATTS V. INDIANA, 338 U.S. 49, 50, NOTE 1,
WE WOULD NOT BE JUSTIFIED IN SUBSTITUTING A DIFFERENT VIEW AS TO THE
BASIS OF THE JURY'S VERDICT. 

IT IS OF COURSE TRUE THAT WHEN NECESSARY TO A PROPER DETERMINATION OF
A CLAIMED DENIAL OF CONSTITUTIONAL RIGHTS THIS COURT WILL EXAMINE THE
RECORD IN A STATE CRIMINAL TRIAL AND IS NOT FORECLOSED BY THE
CONCLUSION OF THE STATE COURT.  NIEMOTKO V. MARYLAND, 340 U.S. 268,
271; FEINER V. NEW YORK, 340 U.S. 315, 316.  BUT THIS PRACTICE HAS
NEVER BEEN THOUGHT TO PERMIT US TO OVERRULE STATE COURTS ON
CONTROVERTED OR FAIRLY DEBATABLE FACTUAL ISSUES.  "ON REVIEW HERE OF
STATE CONVICTIONS, ALL THOSE MATTERS WHICH ARE USUALLY TERMED ISSUES OF
FACT ARE FOR CONCLUSIVE DETERMINATION BY THE STATE COURTS AND ARE NOT
OPEN FOR RECONSIDERATION BY THIS COURT.  OBSERVANCE OF THIS RESTRICTION
IN OUR REVIEW OF STATE COURTS CALLS FOR THE UTMOST SCRUPLE."  WATTS V.
INDIANA, SUPRA, AT 50-51. 

IN THIS CASE WE ARE BEING ASKED TO GO EVEN FURTHER THAN TO OVERRULE A
STATE COURT'S FINDINGS ON DISPUTED FACTUAL ISSUES.  FOR WE WOULD HAVE
TO EMBARK ON SHEER SPECULATION IN ORDER TO DECIDE THAT THE JURY'S
VERDICT AT THE EARLIER TRIAL NECESSARILY EMBRACED A DETERMINATION
FAVORABLE TO THE PETITIONER ON THE ISSUE OF "IDENTITY."  IN NUMEROUS
CRIMINAL CASES BOTH STATE AND FEDERAL COURTS HAVE DECLINED TO APPLY
COLLATERAL ESTOPPEL BECAUSE IT WAS NOT POSSIBLE TO DETERMINE WITH
CERTAINTY WHICH ISSUES WERE DECIDED BY THE FORMER GENERAL VERDICT OF
ACQUITTAL.  SEE, E.G., PEOPLE V. ROGERS, 102 MISC. 437, 170 N.Y. SUPP.
86; STATE V. ERWIN, 101 UTAH 365, 422-424, 120 P.2D 285, 312-313;
UNITED STATES V. HALBROOK, 36 F. SUPP. 345.  KEEPING IN MIND THE FACT
THAT JURY VERDICTS ARE SOMETIMES INCONSISTENT OR IRRATIONAL, SEE, E.G.,
DUNN V. UNITED STATES, 284 U.S. 390; UNITED STATES V. DOTTERWEICH, 320
U.S. 277, 279; GREEN V. UNITED STATES, 355 U.S. 184, WE CANNOT SAY THAT
THE NEW JERSEY SUPREME COURT EXCEEDED CONSTITUTIONALLY PERMISSIBLE
BOUNDS IN CONCLUDING THAT THE JURY MIGHT HAVE ACQUITTED PETITIONER AT
THE EARLIER TRIAL BECAUSE IT DID NOT BELIEVE THAT THE VICTIMS OF THE
ROBBERY HAD BEEN PUT IN FEAR, OR THAT PROPERTY HAD BEEN TAKEN FROM
THEM, OR FOR OTHER REASONS UNRELATED TO THE ISSUE OF "IDENTITY."  FOR
US TO TRY TO OUTGUESS THE STATE COURT ON THIS SCORE WOULD BE WHOLLY OUT
OF KEEPING WITH THE PROPER DISCHARGE OF OUR DIFFICULT AND DELICATE
RESPONSIBILITIES UNDER THE FOURTEENTH AMENDMENT IN DETERMINING WHETHER
A STATE HAS VIOLATED THE FEDERAL CONSTITUTION.    FINALLY, IN THE
CIRCUMSTANCES SHOWN BY THIS RECORD, WE CANNOT HOLD THAT PETITIONER WAS
DENIED A "SPEEDY TRIAL" ON THE YAGER INDICTMENT, WHATEVER MAY BE THE
REACH OF THE SIXTH AMENDMENT UNDER THE PROVISIONS OF THE FOURTEENTH. 
(FN6)  AND WE NEED HARDLY ADD TO THE SUFFICIENCY OF THE EVIDENCE TO
SUPPORT THE IDENTIFICATION OF THE PETITIONER AS ONE OF THE GAY'S TAVERN
ROBBERS IS A MATTER SOLELY WITHIN THE PROVINCE OF THE STATE COURTS. 
AFFIRMED.    FN1  SECTION 2:166-1 OF THE REVISED STATUTES OF NEW
JERSEY, UNDER WHICH PETITIONER WAS INDICTED, PROVIDED: 

"ANY PERSON WHO SHALL FORCIBLY TAKE FROM THE PERSON OF ANOTHER, MONEY
OR PERSONAL GOODS AND CHATTELS, OF ANY VALUE WHATEVER, BY VIOLENCE OR
PUTTING HIM IN FEAR  ...  SHALL BE GUILTY  ...  ." 

THIS SECTION WAS SUBSEQUENTLY REPEALED AND SUBSTANTIALLY RE-ENACTED. 
N.J. STAT. ANN., 1953, SEC. 2A:141-1. 

FN2  ARTICLE I, PAR. 11, OF THE NEW JERSEY CONSTITUTION PROVIDES IN
PART THAT "NO PERSON SHALL, AFTER ACQUITTAL, BE TRIED FOR THE SAME
OFFENSE." 

FN3  INDEED, THE NEW JERSEY SUPERIOR COURT RECOGNIZED THIS PROBLEM
UNDER THE DOUBLE JEOPARDY CLAUSE OF THE STATE CONSTITUTION WHEN IT SAID
IN THE PRESENT CASE:  "ASSUREDLY OUR PROSECUTORS ARE AWARE THAT THE
CONCEPT OF DOUBLE JEOPARDY IS DESIGNED TO PREVENT THE GOVERNMENT FROM
UNDULY HARASSING AN ACCUSED, AND WE ARE CONFIDENT THAT THEY WILL NOT
RESORT UNFAIRLY TO MULTIPLE INDICTMENTS AND SUCCESSIVE TRIALS IN ORDER
TO ACCOMPLISH INDIRECTLY THAT WHICH THE CONSTITUTIONAL INTERDICTION
PRECLUDES."  35 N.J. SUPER., AT 561-562, 114 A.2D, AT 577. 

FN4  SEE ALSO HORACK, THE MULTIPLE CONSEQUENCES OF A SINGLE CRIMINAL
ACT, 21 MINN. L. REV. 805; KIRCHHEIMER, THE ACT, THE OFFENSE AND DOUBLE
JEOPARDY, 58 YALE L.J. 513; GERSHENSON, RES JUDICATA IN SUCCESSIVE
CRIMINAL PROSECUTIONS, 24 BROOKLYN L. REV. 12. 

FN5  THE NEW JERSEY RULES IN FORCE DURING 1952 PROVIDED: 

"RULE 2:4-15 JOINDER OF OFFENSES (NOW REVISED RULE 3:4-7): 

"TWO OR MORE OFFENSES MAY BE CHARGED IN THE SAME INDICTMENT OR
ACCUSATION IN A SEPARATE COUNT FOR EACH OFFENSE IF THE OFFENSES
CHARGED, WHETHER HIGH MISDEMEANORS OR MISDEMEANORS OR BOTH, ARE OF THE
SAME OR SIMILAR CHARACTER OR ARE BASED ON THE SAME ACT OR TRANSACTION
OR ON TWO OR MORE ACTS OR TRANSACTIONS CONNECTED TOGETHER OR
CONSTITUTING PARTS OF A COMMON SCHEME OR PLAN." 

"RULE 2:5-4 TRIAL OF INDICTMENTS OR ACCUSATIONS TOGETHER (NOW REVISED
RULE 3:5-6): 

"THE COURT MAY ORDER TWO OR MORE INDICTMENTS OR ACCUSATIONS TO BE
TRIED TOGETHER IF THE OFFENSES AND THE DEFENDANTS, IF THERE IS MORE
THAN ONE, COULD HAVE BEEN JOINED IN A SINGLE INDICTMENT OR
ACCUSATION." 

FN6  THE ROBBERY AT GAY'S TAVERN OCCURRED ON SEPTEMBER 20, 1950.  ON
SEPTEMBER 23 OR 24, 1950, PETITIONER ABSCONDED FROM PAROLE IN NEW
YORK.  HE WAS ARRESTED ON NOVEMBER 20, 1950, AND RETURNED TO PRISON IN
NEW YORK, WHERE HE REMAINED UNTIL JANUARY 12, 1952, WHEN HE WAS
TRANSFERRED TO THE BERGEN COUNTY JAIL IN NEW JERSEY.  IN THE MEANTIME,
ON JUNE 26, 1951, THE BERGEN COUNTY GRAND JURY RETURNED INDICTMENTS
CHARGING PETITIONER WITH THE ROBBERIES OF CASCIO, CAPEZZUTO AND
GALIARDO.  THESE WERE TRIED TOGETHER, AT PETITIONER'S FIRST TRIAL, ON
MAY 26 AND 27, 1952.  FOLLOWING HIS ACQUITTAL PETITIONER WAS RETURNED
TO NEW YORK TO COMPLETE HIS SENTENCE, AND HE WAS IN A NEW YORK PRISON
ON JULY 17, 1952, WHEN THE BERGEN COUNTY GRAND JURY RETURNED THE
INDICTMENT CHARGING HIM WITH THE ROBBERY OF YAGER.  NEW JERSEY
REACQUIRED PETITIONER BY EXTRADITION ON MAY 11, 1954.  THE SECOND TRIAL
WAS HELD ON OCTOBER 18, 1954, AT THE NEXT TERM OF THE BERGEN COUNTY
COURT, WHICH WAS NOT IN SESSION FOR CRIMINAL TRIALS DURING THE SUMMER
MONTHS.  IT THUS APPEARS THAT A SUBSTANTIAL PORTION OF THE TIME
ELAPSING PRIOR TO PETITIONER'S TRIAL ON THE YAGER INDICTMENT CAN BE
ACCOUNTED FOR BY HIS INCARCERATION IN NEW YORK. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

I THINK THE UNDISPUTED FACTS DISCLOSED BY THIS RECORD PLAINLY SHOW
THAT THE CONVICTION OF THIS PETITIONER HAS BEEN OBTAINED BY USE OF A
PROCEDURE INCONSISTENT WITH THE DUE PROCESS REQUIREMENTS OF THE
FOURTEENTH AMENDMENT.  THESE ARE THE FACTS:  ON SEPT. 20, 1950, THREE
ARMED MEN ENTERED A TAVERN IN FAIRVIEW, NEW JERSEY, LINED UP FIVE
PERSONS AGAINST A WALL AND ROBBED EACH OF THEM.  PETITIONER ALONE WAS
CHARGED IN THREE INDICTMENTS WITH ROBBERY OF THREE OF THESE FIVE
VICTIMS.  THE THREE INDICTMENTS WERE JOINED FOR TRIAL.  AT HIS TRIAL,
PETITIONER PUT ONLY ONE FACT IN ISSUE - WHETHER OR NOT HE WAS ONE OF
THE MEN WHO HAD COMMITTED THE ROBBERY.  ALL FIVE VICTIMS TESTIFIED FOR
THE STATE ON THIS ISSUE.  THREE SAID PETITIONER WAS NOT THE MAN; ONE
SAID HE COULD NOT SWEAR THAT PETITIONER WAS THE MAN; ONE MAN MADE A
POSITIVE IDENTIFICATION OF PETITIONER.  PETITIONER'S SOLE DEFENSE WAS
AN ALIBI.  HE SOUGHT TO ESTABLISH HIS PRESENCE ELSEWHERE AT THE TIME OF
THE ROBBERY.  THE JURY HEARD ALL THE EVIDENCE, DULY DELIBERATED, AND
FOUND PETITIONER NOT GUILTY.  THEREAFTER, PETITIONER WAS INDICTED AND
TRIED FOR THE ROBBERY OF VICTIM NUMBER FOUR.  THIS TIME, ONLY THE
VICTIM WHO HAD IDENTIFIED PETITIONER AS ONE OF THE ROBBERS AT THE FIRST
TRIAL WAS CALLED BY THE STATE AS A WITNESS.   THE OTHER FOUR VICTIMS
TESTIFIED FOR THE DEFENSE.  ALL FIVE TESTIFIED SUBSTANTIALLY AS AT THE
FIRST TRIAL.  AGAIN, THE ONLY CONTESTED ISSUE WAS WHETHER PETITIONER
WAS ONE OF THE THREE ROBBERS.  AGAIN, PETITIONER TESTIFIED THAT HE WAS
IN NEW YORK CITY AT THE TIME OF THE ROBBERY.  THIS TIME THE JURY FOUND
PETITIONER GUILTY. 

THE ISSUE IS WHETHER OR NOT THIS DETERMINATION OF GUILT, BASED AS IT
IS ON THE SUCCESSIVE LITIGATION OF A SINGLE ISSUE THAT HAD PREVIOUSLY
BEEN RESOLVED BY A JURY IN PETITIONER'S FAVOR, IS CONTRARY TO THE
REQUIREMENTS OF FAIR PROCEDURE GUARANTEED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  THE ISSUE IS NOT WHETHER PETITIONER HAS
TECHNICALLY COMMITTED FIVE OFFENSES, NOR WHETHER HE COULD RECEIVE A
TOTAL OF FIVE PUNISHMENTS HAD HE BEEN CONVICTED IN A SINGLE TRIAL OF
ROBBING FIVE VICTIMS. 

FEW WOULD DISPUTE THAT AFTER THE FIRST JURY HAD ACQUITTED PETITIONER
OF ROBBING THE FIRST THREE VICTIMS, NEW JERSEY COULD NOT HAVE RETRIED
PETITIONER ON THE IDENTICAL CHARGE OF ROBBING THESE SAME THREE
PERSONS.  AFTER A JURY OF 12 HAD HEARD THE CONFLICTING TESTIMONY OF THE
FIVE VICTIMS ON THE ISSUE OF THE ROBBER'S IDENTITY AND CONCLUDED THAT
AT LEAST A REASONABLE DOUBT EXISTED AS TO WHETHER PETITIONER WAS ONE OF
THE ROBBERS, THE SAME EVIDENCE COULD NOT BE PRESENTED TO 12 NEW JURORS
IN THE HOPE THAT THEY WOULD COME TO A DIFFERENT CONCLUSION.  I FAIL TO
SEE HOW THE UNCONSTITUTIONALITY OF THAT PROCEDURE IS ALTERED ONE WHIT
BY THE FACT THAT THE NEW INDICTMENT, BROUGHT IN THIS CASE AFTER
PETITIONER'S ACQUITTAL, RELATES TO A DIFFERENT VICTIM OF THE SAME
ROBBERY.  THE NAME OF THE PARTICULAR VICTIM SPECIFIED IN THE INDICTMENT
HAS ABSOLUTELY NO BEARING ON THE ISSUE OF THE ROBBER'S IDENTITY.  THE
VICE OF THIS PROCEDURE LIES IN RELITIGATING THE SAME ISSUE ON THE SAME
EVIDENCE BEFORE TWO DIFFERENT JURIES WITH A MAN'S INNOCENCE OR GUILT AT
STAKE.  THIS TAINTS THE SECOND TRIAL, WHETHER THE NEW INDICTMENT
CHARGES ROBBERY OF THE SAME OR DIFFERENT VICTIMS. 

THE COURT FINDS IT UNNECESSARY TO COME TO GRIPS WITH THIS PROBLEM,
BECAUSE IT ELECTS TO DEFER TO THE APPRAISAL OF THE RECORD MADE BY A 4-3
MAJORITY OF THE NEW JERSEY SUPREME COURT.  THAT COURT CONCLUDED THAT
THE FIRST TRIAL RAISED ISSUES OTHER THAN IDENTITY OF THE ROBBER, THUS
MAKING IT IMPOSSIBLE TO SAY THAT THE JURY'S VERDICT OF ACQUITTAL
RESOLVED THE ISSUE OF IDENTITY FAVORABLY TO PETITIONER.  THIS COURT NOW
CONCLUDES THAT THE STATE COURT'S APPRAISAL OF THE RECORD WAS A
RESOLUTION OF THE SORT OF "FACTUAL ISSUE" THAT IS NORMALLY NOT OPEN FOR
RECONSIDERATION BY THIS COURT.  BUT "'ISSUE OF FACT' IS A COAT OF MANY
COLORS."  WATTS V. INDIANA, 338 U.S. 49, 51.  IN MY VIEW THE ISSUE
POSED HERE IS NOT A "FACT ISSUE" AT ALL.  THE FACTS ARE CLEAR AND
UNDISPUTED.  THE PROBLEM IS TO JUDGE THEIR LEGAL SIGNIFICANCE.  AND
SINCE THE CLAIM OF A DENIAL OF DUE PROCESS DEPENDS ON AN EVALUATION OF
THE SIGNIFICANCE OF THESE UNDISPUTED FACTS, THE TASK OF MAKING THAT
EVALUATION IS INESCAPABLY THE FUNCTION OF THIS COURT.  NIEMOTKO V.
MARYLAND, 340 U.S. 268, 271; WATTS V. INDIANA, SUPRA; FAY V. NEW YORK,
332 U.S. 261, 272. 

ASSESSING THE SIGNIFICANCE OF A JURY VERDICT IN SOME CRIMINAL CASES
MAY INVOLVE, AS THE COURT TERMS IT, "SHEER SPECULATION."  BUT THE
RECORDS OF OTHER TRIALS ARE SUCH AS TO INDICATE PLAINLY, WHEN "VIEWED
WITH AN EYE TO ALL THE CIRCUMSTANCES OF THE PROCEEDINGS," SEALFON V.
UNITED STATES, 332 U.S. 575, 579, THAT A JURY VERDICT OF ACQUITTAL IS
DETERMINATIVE OF A PARTICULAR ISSUE THAT WAS CONTESTED AT THAT TRIAL. 
THIS COURT UNANIMOUSLY FOUND THE RECORD IN SEALFON V. UNITED STATES,
SUPRA, SUFFICIENT TO JUSTIFY SUCH A CONCLUSION.  CF.  EMICH MOTORS
CORP. V. GENERAL MOTORS CORP., 340 U.S. 558.  OTHER COURTS HAVE
SIMILARLY EVALUATED TRIAL RECORDS AND COME TO THE SAME CONCLUSION IN
SITUATIONS WHERE, PRECISELY AS IN THE INSTANT CASE, THE SOLE CONTESTED
ISSUE WAS THE IDENTITY OF THE CRIMINAL.  UNITED STATES V. DE ANGELO,
138 F.2D 466; HARRIS V. STATE, 193 GA. 109, 17 S.E.2D 573; PEOPLE V.
GRZESCZAK, 77 MISC. 202, 137 N.Y. SUPP. 538.  OF COURSE, SUCH A REVIEW
OF THE RECORD CANNOT TELL US IN FACT WHAT WAS IN THE MIND OF EACH
JUROR.  THIS WE WOULD NOT KNOW EVEN IF THE ISSUE OF THE ROBBER'S
IDENTITY IN THIS CASE HAD BEEN SUBMITTED TO THE JURY AS A SPECIAL
INTERROGATORY, FOR AN ANSWER IN PETITIONER'S FAVOR MIGHT REFLECT A WIDE
ASSORTMENT OF "FACTS" BELIEVED BY EACH JUROR.  BUT BECAUSE A COURT
CANNOT SAY WITH CERTAINTY WHAT WAS IN THE MIND OF EACH JUROR IS NO
REASON FOR DECLINING TO EXAMINE A RECORD TO DETERMINE THE MANIFEST
LEGAL SIGNIFICANCE OF A JURY'S VERDICT. 

EVALUATING THE RECORD IN THIS CASE REQUIRES NO SPECULATION.  THE ONLY
CONTESTED ISSUE WAS WHETHER PETITIONER WAS ONE OF THE ROBBERS.  THE
PROOF OF THE ELEMENTS OF THE CRIME OF ROBBERY WAS OVERWHELMING AND WAS
NOT CHALLENGED.  THE SUGGESTION THAT THE JURY MIGHT HAVE ACQUITTED
BECAUSE OF A FAILURE OF PROOF THAT PROPERTY WAS TAKEN FROM THE VICTIMS
IS SIMPLY UNREALISTIC.  THE GUARANTEE OF A CONSTITUTIONAL RIGHT SHOULD
NOT BE DENIED BY SUCH AN ARTIFICIAL APPROACH.  THE FIRST JURY'S VERDICT
OF ACQUITTAL IS MERELY AN ILLUSION OF JUSTICE IF ITS LEGAL SIGNIFICANCE
IS NOT A DETERMINATION THAT THERE WAS AT LEAST A REASONABLE DOUBT
WHETHER PETITIONER WAS PRESENT AT THE SCENE OF THE ROBBERY. 

THE COURT'S EFFORT TO ENLIST BROCK V. NORTH CAROLINA, 344 U.S. 424,
IN AID OF THE CONCLUSIONS REACHED IS, IN MY VIEW, ENTIRELY
UNWARRANTED.  IN THAT CASE A TRIAL WAS HALTED BEFORE COMPLETION WHEN
TWO STATE WITNESSES UNEXPECTEDLY INVOKED THEIR PRIVILEGE AGAINST SELF
INCRIMINATION AND DECLINED TO TESTIFY.  UPON A MOTION BY THE
PROSECUTOR, A MISTRIAL WAS DECLARED.  ON RETRIAL, THE DEFENDANT WAS
CONVICTED, AND THIS COURT AFFIRMED.  WHATEVER VIEW ONE MIGHT TAKE OF
THE CORRECTNESS OF THAT DECISION, ITS HOLDING SHOULD NOT BE EXPANDED TO
COVER THE SITUATION HERE.  THE OBVIOUS DIFFERENCES BETWEEN THAT CASE
AND THIS IS THAT BROCK DOES NOT INVOLVE DETERMINATION OF THE SAME ISSUE
BY TWO DIFFERENT JURIES.  AT THE FIRST BROCK TRIAL, THE CASE NEVER WENT
TO THE JURY.  HERE, HOWEVER, THE PROSECUTION DID NOT ASK FOR A MISTRIAL
WHEN ITS OWN WITNESSES FAILED TO GIVE EXPECTED TESTIMONY.  INSTEAD, THE
STATE PROCEEDED TO THE CONCLUSION OF THE TRIAL, AND THE ISSUE OF GUILT,
WHICH TURNED SOLELY ON THE ISSUE OF IDENTITY, WENT TO THE JURY.  THE
VERDICT WAS IN PETITIONER'S FAVOR.  THE TRIAL WAS FREE OF ERROR.  TO
CONVICT PETITIONER BY LITIGATING THIS ISSUE AGAIN BEFORE 12 DIFFERENT
JURORS IS TO EMPLOY A PROCEDURE THAT FAILS TO MEET THE STANDARD
REQUIRED BY THE FOURTEENTH AMENDMENT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

WE RECENTLY STATED IN GREEN V. UNITED STATES, 355 U.S. 184, 190, THAT
BY VIRTUE OF THE CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY AN
ACCUSED CAN BE FORCED TO "RUN THE GANTLET" BUT ONCE ON A CHARGE.  THAT
CASE, INVOLVING A FEDERAL PROSECUTION, PROVIDES FOR ME THE STANDARD FOR
EVERY STATE PROSECUTION AS WELL, AND BY THAT STANDARD THIS JUDGMENT OF
CONVICTION SHOULD BE REVERSED.  (FN1) 

HOAG IS MADE TO RUN THE GANTLET TWICE.  THE FACTS ARE SIMPLE.  FIVE
MEN - CASCIO, CAPEZZUTO, GALIARDO, DOTTINO, AND YAGER - WERE TOGETHER
AT GAY'S TAVERN WHEN THREE ARMED MEN ENTERED AND ROBBED THEM. 
PETITIONER WAS INDICTED AND TRIED FOR THE OFFENSES OF ROBBING THREE OF
THE FIVE. 

ONE INDISPENSABLE ELEMENT OF THE CRIME WAS THE TAKING OF PROPERTY "BY
VIOLENCE OR PUTTING HIM IN FEAR," AS PROVIDED BY THE NEW JERSEY STATUTE
DEFINING ROBBERY.  N.J. STAT. ANN., 1939, 2:166-1.  (FN2)  THE CRITICAL
EVIDENCE WAS PETITIONER'S ALIBI:  HE CLAIMED TO BE AT ANOTHER PLACE AT
THE TIME.   ONE WITNESS, HOWEVER, IDENTIFIED HIM AS ONE OF THE
ROBBERS.  THE JURY ACQUITTED.  THEN PETITIONER WAS INDICTED FOR ROBBING
ONE OF THE REMAINING FIVE NAMED INDIVIDUALS.  THE CRIMINAL TRANSACTION,
UNLIKE THAT IN BURTON V. UNITED STATES, 202 U.S. 344, 378, WAS
INDIVISIBLE.  THE TIME AND PLACE WERE THE SAME.  (FN3)  THE CENTRAL
ISSUE WAS THE SAME, FOR, AS STATED BY JUSTICE HEHER, DISSENTING, BELOW,
"  ...  HERE THE ASSAULTS WERE SIMULTANEOUS, THE PUTTING IN FEAR WAS
BUT A SINGLE ACT OR OFFENSE OPERATING ALIKE UPON ALL OF THE VICTIMS OF
THE FELONIOUS ENDEAVOR AT THE SAME TIME."  21 N.J., AT 510, 122 A.2D,
AT 635.  THE BASIC FACTS CANVASSED WERE THE SAME.  PETITIONER'S ALIBI
WAS TENDERED ONCE MORE.  THE TESTIMONY OF THE SELFSAME WITNESS
IDENTIFYING PETITIONER AS ONE OF THE ROBBERS WAS INTRODUCED.  THIS TIME
PETITIONER WAS CONVICTED.    THE RESOLUTION OF THIS CRUCIAL ALIBI ISSUE
IN FAVOR OF THE PROSECUTION WAS AS ESSENTIAL TO CONVICTION IN THE
SECOND TRIAL AS ITS RESOLUTION IN FAVOR OF THE ACCUSED WAS ESSENTIAL TO
HIS ACQUITTAL IN THE FIRST TRIAL.  SINCE PETITIONER WAS PLACED IN
JEOPARDY ONCE AND FOUND NOT TO HAVE BEEN PRESENT OR A PARTICIPANT, HE
SHOULD BE PROTECTED FROM FURTHER PROSECUTION FOR A CRIME GROWING OUT OF
THE IDENTICAL FACTS AND OCCURRING AT THE SAME TIME.  (FN4) 

HOAG WAS ONCE MADE TO "RUN THE GANTLET" ON WHETHER HE WAS PRESENT
WHEN THE VIOLENCE AND PUTTING IN FEAR OCCURRED.  HAVING ONCE RUN THAT
GANTLET SUCCESSFULLY, HE MAY NOT BE COMPELLED TO RUN IT AGAIN.  (FN5) 

FN1  SEE BROCK V. NORTH CAROLINA, 344 U.S. 424, 440 (DISSENTING
OPINION). 

FN2  THIS SECTION HAS BEEN REPEALED AND RE-ENACTED IN SUBSTANTIALLY
THE SAME FORM.  N.J. STAT. ANN., 1953, 2A:141-1. 

FN3  GAVIERES V. UNITED STATES, 220 U.S. 338, AROSE IN THE
PHILIPPINES UNDER AN ACT OF CONGRESS WHICH APPLIED TO THE ISLANDS THE
PROTECTION OF DOUBLE JEOPARDY.  PETITIONER WAS FIRST CONVICTED OF BEING
DRUNK AND INDECENT IN A PUBLIC PLACE, AN OFFENSE UNDER AN ORDINANCE OF
MANILA.  THEN HE WAS CONVICTED A SECOND TIME FOR INSULTING A PUBLIC
OFFICIAL, A CRIME UNDER THE PENAL CODE OF THE ISLANDS.  THE ACTS AND
WORDS CHARGED IN THE SECOND PROSECUTION WERE THE SAME AS THOSE CHARGED
IN THE FIRST.  THE COURT SUSTAINED THE SECOND CONVICTION, MR. JUSTICE
HARLAN DISSENTING, ON THE GROUNDS THAT WHILE "THE CONDUCT OF THE
ACCUSED WAS ONE AND THE SAME, TWO OFFENSES RESULTED, EACH OF WHICH HAD
AN ELEMENT NOT EMBRACED IN THE OTHER."  ID., AT 345.  THIS CASE APPEARS
CONTRARY TO THE POSITION I TAKE HERE.  BUT IT, LIKE OTHER CASES ARISING
UNDER THE LAWS OF THE PHILIPPINE ISLANDS PRIOR TO THEIR INDEPENDENCE,
HAS NOT BEEN DEEMED AN AUTHORITATIVE CONSTRUCTION OF THE CONSTITUTIONAL
PROVISION.  SEE GREEN V. UNITED STATES, SUPRA, AT 194-198. 

FN4  IN 1912, A NEW YORK COURT, UNDER ALMOST IDENTICAL CIRCUMSTANCES,
STATED: 

"THE ONLY LITIGATED QUESTION OF FACT ON BOTH THESE INDICTMENTS IS THE
PRESENCE OF THE ACCUSED WHEN THESE CRIMES WERE COMMITTED.  THAT
QUESTION HAVING ONCE BEEN DECIDED, IT CANNOT AGAIN BE TRIED.  SHOULD
THE JURY IN THIS CASE FIND THE DEFENDANT GUILTY UNDER THE DEFENSE
HEREIN INTERPOSED, THAT OF AN ALIBI, WE WOULD BE CONFRONTED WITH TWO
INCOMPATIBLE VERDICTS, WHICH WOULD AMOUNT TO A FINDING ON THE ONE HAND
THAT THE DEFENDANT WAS NOT PRESENT, AND ON THE OTHER HAND THAT HE WAS
PRESENT."  PEOPLE V. GRZESCZAK, 77 MISC. 202, 137 N.Y. SUPP. 538, 541. 

OR, AS CHITTY SAID: 

"IT IS NOT, IN ALL CASES, NECESSARY THAT THE TWO CHARGES SHOULD BE
PRECISELY THE SAME IN POINT OF DEGREE, FOR IT IS SUFFICIENT IF AN
ACQUITTAL OF THE ONE WILL SHOW THAT THE DEFENDANT COULD NOT HAVE BEEN
GUILTY OF THE OTHER."  1 CHITTY, CRIMINAL LAW (5TH AM. ED.  1847),
455. 

TO LIKE EFFECT IS STATE V. SHEPARD, 7 CONN. 54, 55-56: 

"HE HAS BEEN CONVICTED OF AN ASSAULT, WITH AN ATTEMPT TO COMMIT A
RAPE; FOR THIS HE HAS BEEN PUNISHED.  OF THESE FACTS HE HAS BEEN FOUND
GUILTY; AND THEY MUST BE ALLEGED, AND PROVED, TO CONVICT HIM OF A
RAPE.  BUT FOR THESE FACTS HE CANNOT BE TRIED AGAIN; OTHERWISE, HE
MIGHT BE TWICE PUNISHED FOR THE SAME FACT." 

AND SEE STATE V. COOPER, 13 N.J.L. 361; STATE V. LABATO, 7 N.J. 137,
80 A.2D 617; COMMONWEALTH V. ROBY, 12 PICK.  (MASS.)  496, 504-505. 

FN5  THE RESULT I REACH DOES NOT SQUARE WITH PALKO V. CONNECTICUT,
302 U.S. 319.  PALKO WAS INDICTED FOR THE CRIME OF MURDER IN THE FIRST
DEGREE AND WAS FOUND GUILTY BY A JURY OF MURDER IN THE SECOND DEGREE. 
HE WAS SENTENCED TO CONFINEMENT FOR LIFE.  PURSUANT TO A STATE STATUTE,
THE PROSECUTION APPEALED AND OBTAINED A REVERSAL AND A NEW TRIAL.  THIS
TIME PALKO WAS CONVICTED OF MURDER IN THE FIRST DEGREE AND SENTENCED TO
DEATH.  THAT IS A DECISION UNDER THE DOUBLE JEOPARDY CLAUSE WITH WHICH
I DO NOT AGREE SINCE PALKO WAS FORCED TO FACE THE RISK OF THE DEATH
PENALTY TWICE ON THE SAME EVIDENCE AND THE SAME CHARGE. 
..END :
















FEDERAL MARITIME BOARD V. ISBRANDTSEN COMPANY, INC. 356 U.S. 481 


NO. 73.  ARGUED DECEMBER 11, 1957 - DECIDED MAY 19, 1958* - 99 U.S. APP.
D.C. 312, 239 F.2D 933, AFFIRMED. 

*TOGETHER WITH NO. 74, JAPAN-ATLANTIC AND GULF FREIGHT CONFERENCE ET
AL. V. UNITED STATES ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 


THE FEDERAL MARITIME BOARD ISSUED AN ORDER APPROVING A RATE SYSTEM
PROPOSED BY A SHIPPING CONFERENCE OF 17 COMMON CARRIERS BY WATER
SERVING THE INBOUND TRADE FROM JAPAN, KOREA, AND OKINAWA TO PORTS ON
THE ATLANTIC AND GULF COASTS OF THE UNITED STATES.  UNDER THE PROPOSED
SYSTEM, A SHIPPER WHO SIGNED AN EXCLUSIVE-PATRONAGE CONTRACT WITH THE
CONFERENCE WOULD PAY LESS THAN THE REGULAR FREIGHT RATES CHARGED TO ALL
OTHERS.  THE COURT OF APPEALS SET ASIDE THE BOARD'S ORDER, ON THE
GROUND THAT THIS SYSTEM OF DUAL RATES WAS UNLAWFUL UNDER SEC. 14 OF THE
SHIPPING ACT OF 1916.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 482-500. 

(A)  IN SEC. 14 CONGRESS FLATLY PROHIBITS CERTAIN SPECIFIC CONFERENCE
PRACTICES HAVING THE PURPOSE AND EFFECT OF STIFLING THE COMPETITION OF
INDEPENDENT CARRIERS.  IN ADDITION TO THESE SPECIFIC ABUSES, SEC. 14
ALSO FORBIDS "RESORT TO OTHER DISCRIMINATING OR UNFAIR METHODS," AND
THIS, IN THE CONTEXT OF SEC. 14, MUST BE CONSTRUED AS CONSTITUTING A
CATCHALL CLAUSE BY WHICH CONGRESS MEANT TO PROHIBIT OTHER PRACTICES NOT
SPECIFICALLY ENUMERATED BUT SIMILAR IN PURPOSE AND EFFECT TO THOSE
WHICH WERE ENUMERATED.  PP. 491-493. 

(B)  SINCE THE BOARD FOUND THAT THE PROPOSED RATE SYSTEM WAS REQUIRED
TO MEET THE COMPETITION OF A CERTAIN INDEPENDENT CARRIER IN ORDER TO
OBTAIN FOR CONFERENCE MEMBERS A GREATER PARTICIPATION IN THE CARGO
MOVING IN THIS TRADE, IT FOLLOWS THAT THE SYSTEM WAS A "RESORT TO OTHER
DISCRIMINATING OR UNFAIR METHODS" TO STIFLE OUTSIDE COMPETITION IN
VIOLATION OF SEC. 14.  P. 493. 

(C)  PREVIOUS DECISIONS IN UNITED STATES NAVIGATION CO. V. CUNARD
S.S. CO., 284 U.S. 474, AND FAR EAST CONFERENCE V. UNITED STATES, 342
U.S. 570, CANNOT BE READ AS HAVING PASSED ON THE CONSTRUCTION OF SEC.
14 THIRD.  PP. 496-499. 

FEDERAL MARITIME BOARD V. ISBRANDTSEN COMPANY, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE ISBRANDTSEN CO., INC., FILED A PETITION IN THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT TO REVIEW, UNDER
5 U.S.C. SEC. 1034, AN ORDER OF THE FEDERAL MARITIME BOARD (FN1)
APPROVING A RATE SYSTEM PROPOSED BY THE JAPAN-ATLANTIC AND GULF FREIGHT
CONFERENCE (THE CONFERENCE).  (FN2)  UNDER THE PROPOSED SYSTEM A
SHIPPER WOULD PAY LESS THAN REGULAR FREIGHT RATES FOR THE SAME SERVICE
IF HE SIGNS AN EXCLUSIVE-PATRONAGE CONTRACT WITH THE CONFERENCE. 
CONTRACT RATES WOULD BE SET AT LEVELS 9 1/2 PERCENT BELOW NONCONTRACT
RATES.  THE COURT OF APPEALS (FN3) SET ASIDE THE BOARD'S ORDER ON THE
GROUND THAT THIS SYSTEM OF DUAL RATES WAS ILLEGAL PER SE UNDER SEC. 14
OF THE SHIPPING ACT, 1916, 39 STAT. 733, AS AMENDED, 46 U.S.C. SEC. 812
THIRD.  (FN4)  WE GRANTED CERTIORARI.  353 U.S. 908. 

THE CONFERENCE IS A VOLUNTARY ASSOCIATION OF 17 COMMON CARRIERS BY
WATER SERVING THE INBOUND TRADE FROM JAPAN, KOREA, AND OKINAWA TO PORTS
ON THE UNITED STATES ATLANTIC AND GULF COASTS.  FIVE OF THE CARRIERS
ARE AMERICAN LINES, EIGHT ARE JAPANESE, AND FOUR ARE OF OTHER
NATIONALITIES.  THE CONFERENCE PRESENTLY OPERATES UNDER A BOARD
APPROVED CONFERENCE AGREEMENT MADE IN 1934.  PRIOR TO WORLD WAR II, THE
CONFERENCE HAD NO DIRECT LINER COMPETITION AND LITTLE TRAMP
COMPETITION. 

AFTER THE WAR, ISBRANDTSEN ENTERED THE TRADE AS THE SOLE NON
CONFERENCE LINE MAINTAINING A REGULAR BERTH SERVICE IN THE JAPAN
ATLANTIC TRADE.  FROM 1947 TO EARLY 1949, ISBRANDTSEN OPERATED FROM
JAPAN TO ATLANTIC COAST PORTS VIA THE SUEZ CANAL.  SINCE 1949
ISBRANDTSEN HAS OPERATED AN APPROXIMATELY FORTNIGHTLY SERVICE FROM
JAPAN TO UNITED STATES ATLANTIC COAST PORTS VIA THE PANAMA CANAL AS
PART OF ITS EASTBOUND, ROUND-THE-WORLD SERVICE.  (FN5) 

ALTHOUGH CONFERENCE MEMBERSHIP IS OPEN TO ANY COMMON CARRIER
REGULARLY OPERATING IN THE TRADE, ISBRANDTSEN HAS REFUSED TO JOIN. 
ISBRANDTSEN'S PRACTICE, BETWEEN 1947 AND MARCH 12, 1953, WAS TO
MAINTAIN RATES AT APPROXIMATELY 10 PERCENT BELOW THE CORRESPONDING
CONFERENCE RATES.  THE GENERAL UNDERSTANDING OF SHIPPERS AND CARRIERS
IN THE TRADE WAS THAT ISBRANDTSEN UNDERQUOTED CONFERENCE RATES BY 10
PERCENT.  THIS PRACTICE OF UNDERCUTTING CONFERENCE RATES DURING THE
YEARS 1950, 1951, AND 1952, CAPTURED FOR ISBRANDTSEN 30 PERCENT OF THE
TOTAL CARGO IN THE TRADE ALTHOUGH ISBRANDTSEN PROVIDED ONLY 11 PERCENT
OF THE SAILINGS.  (FN6) 

SINCE OUTBOUND TONNAGE FROM THE UNITED STATES EXCEEDS THE INBOUND
TONNAGE, THE JAPAN-ATLANTIC AND GULF TRADE IS PRESENTLY OVERTONNAGED,
AND BOTH ISBRANDTSEN AND CONFERENCE VESSELS HAVE HAD SUBSTANTIAL UNUSED
CARGO SPACE AFTER LOADING CARGOES IN JAPAN.  TOTAL SAILINGS IN THE
TRADE ROSE FROM 109 IN 1949 TO MORE THAN 300 IN 1953.  (CF. NOTE 6.) 
THE RE-ENTRY OF THE JAPANESE LINES IN THE TRADE AFTER WORLD WAR II,
FOUR IN 1951 AND FOUR IN 1952, GREATLY CONTRIBUTED TO THE EXCESS OF
TONNAGE.  FOR THE YEARS 1951, 1952, AND THE FIRST 6 MONTHS OF 1953, THE
JAPANESE LINES CARRIED APPROXIMATELY 15 PERCENT, 49 PERCENT, AND 66
PERCENT, RESPECTIVELY, OF THE TRADE'S TOTAL LINER CARGO.  FOR THE YEARS
1950, 1951, 1952, AND THE FIRST 6 MONTHS OF 1953, AMERICAN FLAG LINES,
INCLUDING ISBRANDTSEN BUT EXCLUDING TWO OTHERS, CARRIED 53 PERCENT, 46
PERCENT, 34 PERCENT, AND 21 PERCENT RESPECTIVELY. 

WHEN, IN LATE 1952, ISBRANDTSEN ANNOUNCED A PLAN TO INCREASE SAILINGS
FROM TWO TO THREE OR FOUR SAILINGS A MONTH, THE CONFERENCE FORESAW A
FURTHER INCREASE IN ISBRANDTSEN'S PARTICIPATION WHICH, BECAUSE OF THE
NATIONALISTIC PREFERENCE OF JAPANESE SHIPPERS, WOULD PROBABLY BE AT THE
EXPENSE OF THE NON-JAPANESE CONFERENCE LINES.  TO MEET THIS OUTSIDE
COMPETITION THE CONFERENCE FIRST ATTEMPTED, IN NOVEMBER OF 1952, A 10
PERCENT REDUCTION IN RATES, BUT ISBRANDTSEN ANSWERED WITH A REDUCTION
OF ITS RATES 10 PERCENT UNDER THE CONFERENCE RATES. 

ON DECEMBER 24, 1952, THE CONFERENCE PROPOSED THE DUAL-RATE SYSTEM
AND FILED ITS PLAN WITH THE BOARD AS REQUIRED BY THE BOARD'S GENERAL
ORDER 76, 46 CFR SEC. 236.3, WHICH PERMITTED PROPOSED RATE CHANGES TO
BECOME EFFECTIVE AFTER 30 DAYS UNLESS POSTPONED BY THE BOARD ON ITS OWN
MOTION OR ON THE PROTEST OF INTERESTED PERSONS.  PROTESTS WERE FILED BY
ISBRANDTSEN AND THE DEPARTMENT OF JUSTICE.  THE SECRETARY OF
AGRICULTURE INTERVENED AS AN INTERESTED COMMERCIAL SHIPPER OPPOSED TO
THE PROPOSAL.   ON JANUARY 21, 1953, THE BOARD ORDERED A HEARING ON THE
PROTESTS BUT REFUSED, PENDING THE BOARD'S DETERMINATION, TO SUSPEND
OPERATIONS OF THE DUAL-RATE SYSTEM.  ISBRANDTSEN, THEREFORE, FILED A
PETITION IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT FOR A STAY OF THE BOARD'S ORDER INSOFAR AS IT
AUTHORIZED THE CONFERENCE TO INSTITUTE THE DUAL-RATE SYSTEM.  THE COURT
ANNOUNCED ON FEBRUARY 3, 1953, THAT THE BOARD'S ORDER WOULD BE STAYED
AND THE STAY WAS ENTERED ON MARCH 23, 1953.  (FN7) 

THE CONFERENCE RESPONSE TO THE STAY WAS TO OPEN RATES TO ALLOW EACH
LINE TO FIX ITS OWN RATES.  AT A MEETING ON MARCH 12, 1953, THE
CONFERENCE VOTED TO OPEN CONFERENCE RATES ON 10 OF THE MAJOR
COMMODITIES MOVING IN THE TRADE.  THE ACTION WAS PRIMARILY DIRECTED AT
ISBRANDTSEN'S COMPETITION; THE BOARD FOUND THAT "IT WAS HOPED THAT THE
RATE WAR WOULD LEAD TO ISBRANDTSEN'S JOINING THE CONFERENCE OR TO THE
INSTITUTION OF THE DUAL RATE SYSTEM OR OTHER SYSTEM."  ON SUCCEEDING
DATES IN THE SPRING OF THAT YEAR, THE CONFERENCE OPENED RATES ON MOST
OF THE MAJOR ITEMS IN THE TRADE.  IN THE RESULTING RATE WAR, THE LEVEL
OF RATES DROPPED TO ABOUT 80 PERCENT AND LATER TO ABOUT 30 PERCENT TO
40 PERCENT OF THE PRE-MARCH 12 RATES.  IN SOME INSTANCES, RATES FELL
BELOW HANDLING COSTS.  ISBRANDTSEN ATTEMPTED TO KEEP ON A COMPETITIVE
BASIS IN THE RATE WAR BUT, WHEN PEGGING OF MINIMUM RATES IN MAY DID NOT
IMPROVE ITS POSITION, IN JULY IT SET ITS RATES AT 50 PERCENT OF THE PRE
MARCH 12 CONFERENCE RATES.  SINCE THAT DATE, ISBRANDTSEN HAS CARRIED
LITTLE CARGO IN THE TRADE.  MEANWHILE THE BOARD PROCEEDED WITH THE
HEARING AND ISSUED ITS REPORT ON DECEMBER 14, 1955, FOLLOWED ON
DECEMBER 21, 1955, AND JANUARY 11, 1956, BY ORDERS APPROVING THE
PROPOSED DUAL-RATE SYSTEM.  (FN8) THE QUESTION FOR OUR DECISION IS
WHETHER THE COURT OF APPEALS CORRECTLY SET ASIDE THE BOARD'S ORDERS. 

IT HAS LONG BEEN ALMOST UNIVERSAL PRACTICE FOR AMERICAN AND FOREIGN
STEAMSHIP LINES ENGAGING IN OCEAN COMMERCE TO OPERATE UNDER CONFERENCE
ARRANGEMENTS AND AGREEMENTS.  AT LEAST BY 1913 IT WAS RECOGNIZED THAT
SUCH AGREEMENTS MIGHT RUN COUNTER TO THE POLICY OF THE ANTI-TRUST LAWS;
SEVERAL CASES WERE PENDING AGAINST FOREIGN AND DOMESTIC WATER CARRIERS
FOR ALLEGED VIOLATIONS OF THE SHERMAN ACT.  THE HOUSE COMMITTEE ON
MERCHANT MARINE AND FISHERIES OF THE 62D CONGRESS, OF WHICH COMMITTEE
REPRESENTATIVE J.W. ALEXANDER WAS CHAIRMAN, UNDERTOOK AN EXHAUSTIVE
INQUIRY INTO THE PRACTICES OF SHIPPING CONFERENCES.  THE WORK OF THIS
COMMITTEE IS SET FORTH IN TWO VOLUMES OF HEARINGS, (FN9) A VOLUME OF
DIPLOMATIC AND CONSULAR REPORTS, AND A FOURTH VOLUME CONTAINING THE
COMMITTEE'S REPORT, KNOWN AS THE ALEXANDER REPORT.  (FN10)
CONTEMPORANEOUSLY A BRITISH INQUIRY WAS CONDUCTED BY THE ROYAL
COMMISSION ON SHIPPING RINGS.  THE ROYAL COMMISSION'S REPORT WAS
AVAILABLE TO THE HOUSE COMMITTEE AND WAS CONSIDERED BY IT IN
FORMULATING RECOMMENDED LEGISLATION.  SEE HEARINGS, AT 369. 

BOTH INQUIRIES BROUGHT TO LIGHT A NUMBER OF PREDATORY PRACTICES BY
SHIPPING CONFERENCES DESIGNED TO GIVE THE CONFERENCES MONOPOLIES UPON
PARTICULAR TRADES BY FORESTALLING OUTSIDE COMPETITION AND DRIVING OUT
ALL OUTSIDERS ATTEMPTING TO COMPETE.  THE CRUDEST FORM OF PREDATORY
PRACTICE WAS THE FIGHTING SHIP.  THE CONFERENCE WOULD SELECT A SUITABLE
STEAMER FROM AMONG ITS LINES TO SAIL ON THE SAME DAYS AND BETWEEN THE
SAME PORTS AS THE NON-MEMBER VESSEL, REDUCING THE REGULAR RATES LOW
ENOUGH TO CAPTURE THE TRADE FROM THE OUTSIDER.  THE EXPENSES AND LOSSES
FROM THE LOWER RATES WERE SHARED BY THE MEMBERS OF THE CONFERENCE.  THE
COMPETITOR BY THIS MEANS WAS CAUSED TO EXHAUST ITS RESOURCES AND
WITHDRAW FROM COMPETITION. 

MORE SOPHISTICATED PRACTICES DEPENDED UPON A TIE BETWEEN THE
CONFERENCE AND THE SHIPPER.  THE MOST WIDELY USED TIE, BECAUSE THE MOST
EFFECTIVE, WAS THE SYSTEM OF DEFERRED REBATES.  UNDER THIS SYSTEM A
SHIPPER SIGNED A CONTRACT WITH THE CONFERENCE EXCLUSIVELY TO PATRONIZE
ITS STEAMERS, AND IF HE DID SO DURING THE CONTRACT TERM, AND FOR A
DESIGNATED PERIOD THEREAFTER, A REBATE OF A CERTAIN PERCENTAGE OF HIS
FREIGHT PAYMENTS WAS MADE TO HIM AT THE END OF THE LATTER PERIOD.  IN
THIS WAY, THE SHIPPER WAS UNDER CONSTANT OBLIGATION TO GIVE HIS
PATRONAGE EXCLUSIVELY TO THE CONFERENCE LINES OR SUFFER THE LOSS OF THE
REBATE, WHICH OFTEN AMOUNTED TO A CONSIDERABLE SUM. 

BUT THE ALEXANDER COMMITTEE ALSO FOUND EVIDENCE OF OTHER PREDATORY
PRACTICES.  SHIPPERS WHO PATRONIZED OUTSIDE COMPETITORS WERE DENIED
ACCOMMODATIONS FOR FUTURE SHIPMENTS EVEN AT FULL RATES OF FREIGHT, OR
WERE DISCRIMINATED AGAINST IN THE MATTER OF LIGHTERAGE AND OTHER
SERVICES.  OUTSIDE COMPETITION WAS ALSO MET BY DUAL-RATE CONTRACTS, BY
CONTRACTS WITH LARGE SHIPPERS AT LOWER RATES FOR VOLUME SHIPMENTS, AND
BY CONTRACTS WITH AMERICAN RAILROADS GIVING CONFERENCE VESSELS
PREFERENCE IN THE HANDLING OF CARGOES AT THE DOCKS, AND DELIVERING
THROUGH SHIPMENTS OF FREIGHT TO CONFERENCE VESSELS.  REPORT, AT 287
293. 

THE ALEXANDER COMMITTEE RECOMMENDED AGAINST A FLAT PROHIBITION OF
SHIPPING COMBINATIONS BECAUSE IT FOUND THAT THE RESTORATION OF
UNRESTRICTED COMPETITION AMONG CARRIERS WOULD OPERATE AGAINST THE
PUBLIC INTEREST BY DEPRIVING AMERICAN SHIPPERS OF DESIRABLE ADVANTAGES
OF CONFERENCE ARRANGEMENTS HONESTLY AND FAIRLY CONDUCTED.  THE
COMMITTEE MENTIONED ADVANTAGES SUCH AS "GREATER REGULARITY AND
FREQUENCY OF SERVICE, STABILITY AND UNIFORMITY OF RATES, ECONOMY IN THE
COST OF SERVICE, BETTER DISTRIBUTION OF SAILINGS, MAINTENANCE OF
AMERICAN AND EUROPEAN RATES OF FOREIGN MARKETS ON A PARITY, AND EQUAL
TREATMENTS OF SHIPPERS THROUGH THE ELIMINATION OF SECRET ARRANGEMENTS
AND UNDERHANDED METHODS OF DISCRIMINATION."  ID., AT 416.  THE
COMMITTEE BELIEVED THAT THESE ADVANTAGES COULD BE PRESERVED "ONLY BY
PERMITTING THE SEVERAL LINES IN ANY GIVEN TRADE TO COOPERATE THROUGH
SOME FORM OF RATE AND POOLING ARRANGEMENT UNDER GOVERNMENT SUPERVISION
AND CONTROL," IBID., AND FURTHER "THAT THE DISADVANTAGES AND ABUSES
CONNECTED WITH STEAMSHIP AGREEMENTS AND CONFERENCES AS NOW CONDUCTED
ARE INHERENT, AND CAN ONLY BE ELIMINATED BY EFFECTIVE GOVERNMENT
CONTROL; AND IT IS SUCH CONTROL THAT THE COMMITTEE RECOMMENDS AS THE
MEANS OF PRESERVING TO AMERICAN EXPORTERS AND IMPORTERS THE ADVANTAGES
ENUMERATED, AND OF PREVENTING THE ABUSES COMPLAINED OF."  ID., AT 418. 

IN PASSING THE SHIPPING ACT OF 1916, 39 STAT. 728, 733, AS AMENDED,
46 U.S.C. SEC. 812 THIRD, CONGRESS FOLLOWED THE BASIC RECOMMENDATIONS
OF THE ALEXANDER COMMITTEE.  (FN11)  THE ACT DOES NOT FORBID SHIPPING
CONFERENCES IN FOREIGN COMMERCE BUT REQUIRES ALL CONFERENCE AGREEMENTS
COVERING THE SUBJECTS MENTIONED IN SEC. 15 TO BE SUBMITTED FOR BOARD
APPROVAL.  (FN12)  NO POWER TO FIX RATES IS GRANTED TO THE BOARD. 
SUBJECT TO FAMILIAR LIMITATIONS, THE POWER VESTED IN THE BOARD IS TO
APPROVE AGREEMENTS NOT FOUND TO BE UNJUSTLY OR UNFAIRLY DISCRIMINATORY
IN VIOLATION OF SECS. 16 AND 17 OR OTHERWISE IN VIOLATION OF THE ACT. 
APPROVED AGREEMENTS ARE EXEMPTED FROM THE ANTITRUST LAWS. 

BUT IT MUST BE EMPHASIZED THAT THE FREEDOM ALLOWED CONFERENCE MEMBERS
TO AGREE UPON TERMS OF COMPETITION SUBJECT TO BOARD APPROVAL IS LIMITED
TO THE FREEDOM TO AGREE UPON TERMS REGULATING COMPETITION AMONG
THEMSELVES.  THE CONGRESS IN SEC. 14 HAS FLATLY PROHIBITED PRACTICES OF
CONFERENCES WHICH HAVE THE PURPOSE AND EFFECT OF STIFLING THE
COMPETITION OF INDEPENDENT CARRIERS.  THUS THE DEFERRED-REBATE SYSTEM
(SEC. 14 FIRST) AND THE FIGHTING SHIP (SEC. 14 SECOND) ARE SPECIFICALLY
OUTLAWED.  SIMILARLY, SEC. 14 THIRD PROHIBITS ANOTHER PRACTICE, COMMON
IN 1913:  TO "RETALIATE AGAINST ANY SHIPPER BY REFUSING  ...  SPACE
ACCOMMODATIONS WHEN SUCH ARE AVAILABLE  ... "; THAT PROHIBITION,
MOREOVER, IS ENLARGED TO CONDEMN RETALIATION NOT ONLY WHEN TAKEN
"BECAUSE SUCH SHIPPER HAS PATRONIZED ANY OTHER CARRIER" BUT ALSO WHEN
TAKEN BECAUSE THE SHIPPER "HAS FILED A COMPLAINT CHARGING UNFAIR
TREATMENT, OR FOR ANY OTHER REASON." 

BUT IN ADDITION TO THESE SPECIFICALLY PROSCRIBED ABUSES, CONGRESS, AS
PREVIOUSLY NOTED, WAS AWARE THAT OTHER DEVICES - SOME KNOWN BUT NOT SO
WIDELY USED, AND OTHERS THAT MIGHT BE CONTRIVED - MIGHT BE EMPLOYED TO
ACHIEVE THE SAME RESULTS.  THEREFORE, COORDINATE WITH THESE THREE
CLAUSES AIMED AT SPECIFIC PRACTICES, A FOURTH CATEGORY, COUCHED IN
GENERAL LANGUAGE, WAS ADDED:  "RESORT TO OTHER DISCRIMINATING OR UNFAIR
METHODS ...  ."  IN THE CONTEXT OF SEC. 14 THIS CLAUSE MUST BE
CONSTRUED AS CONSTITUTING A CATCHALL CLAUSE BY WHICH CONGRESS MEANT TO
PROHIBIT OTHER DEVICES NOT SPECIFICALLY ENUMERATED BUT SIMILAR IN
PURPOSE AND EFFECT TO THOSE BARRED BY SEC. 14 FIRST, SECOND, AND THE
"RETALIATE" CLAUSE OF SEC. 14 THIRD.    THE REASON THE "RESORT TO"
CLAUSE WAS ADDED TO THE STATUTE AS AN INDEPENDENT PROHIBITION OF
PRACTICES DESIGNED TO STIFLE OUTSIDE COMPETITION IS REVEALED IN THE
ALEXANDER REPORT.  FROM INFORMATION CONTAINED IN THE REPORT OF THE
BRITISH ROYAL COMMISSION AND A COMMUNICATION FROM A MAJOR NEW YORK
CARRIER ORGANIZATION, THE ALEXANDER COMMITTEE WAS AWARE THAT THE
OUTLAWING OF THE DEFERRED-REBATE SYSTEM WOULD LEAD CONFERENCES TO ADOPT
A CONTRACT SYSTEM TO ACCOMPLISH THE SAME RESULT.  THE BRITISH ROYAL
COMMISSION BELIEVED THAT TIES TO SHIPPERS WERE JUSTIFIED AND THAT THE
ABUSES OF THE DEFERRED-REBATE SYSTEM SHOULD BE TOLERATED IN THE
INTEREST OF ACHIEVING A STRONG CONFERENCE SYSTEM.  HEARINGS, 369-381. 
HOWEVER, THE ALEXANDER COMMITTEE, AND THE CONGRESS IN ADOPTING THE
COMMITTEE'S PROPOSALS, REACHED A DIFFERENT CONCLUSION.  CONGRESS WAS
UNWILLING TO TOLERATE METHODS INVOLVING TIES BETWEEN CONFERENCES AND
SHIPPERS DESIGNED TO STIFLE INDEPENDENT CARRIER COMPETITION.  THUS
CONGRESS STRUCK THE BALANCE BY ALLOWING CONFERENCE ARRANGEMENTS PASSING
MUSTER UNDER SECS. 15, 16, AND 17 LIMITING COMPETITION AMONG THE
CONFERENCE MEMBERS WHILE FLATLY OUTLAWING CONFERENCE PRACTICES DESIGNED
TO DESTROY THE COMPETITION OF INDEPENDENT CARRIERS.  (FN13) TIES TO
SHIPPERS NOT DESIGNED TO HAVE THE EFFECT OF STIFLING OUTSIDE
COMPETITION ARE NOT MADE UNLAWFUL.  WHETHER A PARTICULAR TIE IS
DESIGNED TO HAVE THE EFFECT OF STIFLING OUTSIDE COMPETITION IS A
QUESTION FOR THE BOARD IN THE FIRST INSTANCE TO DETERMINE. 

SINCE THE BOARD FOUND THAT THE DUAL-RATE CONTRACT OF THE CONFERENCE
WAS "A NECESSARY COMPETITIVE MEASURE TO OFFSET THE EFFECT OF NON
CONFERENCE COMPETITION" REQUIRED "TO MEET THE COMPETITION OF
ISBRANDTSEN IN ORDER TO OBTAIN FOR ITS MEMBERS A GREATER PARTICIPATION
IN THE CARGO MOVING IN THIS TRADE," (FN14) IT FOLLOWS THAT THE CONTRACT
WAS A "RESORT TO OTHER DISCRIMINATING OR UNFAIR METHODS" TO STIFLE
OUTSIDE COMPETITION IN VIOLATION OF SEC. 14 THIRD. 

THE BOARD ARGUES, HOWEVER, THAT CONGRESS, ALTHOUGH AWARE OF THE USE
OF SUCH CONTRACTS, DID NOT SPECIFICALLY OUTLAW THEM AND THEREFORE
IMPLICITLY APPROVED THEM.  BUT THE CONTRACTS CALLED TO THE ATTENTION OF
CONGRESS BEAR LITTLE RESEMBLANCE TO THE CONTRACTS HERE IN QUESTION. 
THOSE JOINT CONTRACTS WERE DESCRIBED BY THE ALEXANDER COMMITTEE AS
FOLLOWS: 

"SUCH CONTRACTS ARE MADE FOR THE ACCOUNT OF ALL THE LINES IN THE
AGREEMENT, EACH CARRYING ITS PROPORTION OF THE CONTRACT FREIGHT AS
TENDERED FROM TIME TO TIME.  THE CONTRACTING LINES AGREE TO FURNISH
STEAMERS AT REGULAR INTERVALS AND THE SHIPPER AGREES TO CONFINE ALL
SHIPMENTS TO CONFERENCE STEAMERS, AND TO ANNOUNCE THE QUANTITY OF CARGO
TO BE SHIPPED IN AMPLE TIME TO ALLOW FOR THE PROPER SUPPLY OF TONNAGE. 
THE RATES ON SUCH CONTRACTS ARE LESS THAN THOSE SPECIFIED IN THE
REGULAR TARIFF, BUT THE LINES GENERALLY PURSUE A POLICY OF GIVING THE
SMALL SHIPPER THE SAME CONTRACT RATES AS THE LARGE SHIPPERS, I.E. ARE
WILLING AT ALL TIMES TO CONTRACT WITH ALL SHIPPERS ON THE SAME TERMS." 
REPORT, AT 290. 

THESE CONTRACTS WERE VERY SIMILAR TO ORDINARY REQUIREMENT CONTRACTS. 
THEY OBLIGATED ALL MEMBERS OF THE CONFERENCE TO FURNISH STEAMERS AT
REGULAR INTERVALS AND AT RATES EFFECTIVE FOR A REASONABLY LONG PERIOD,
SOMETIMES A YEAR.  THE SHIPPER WAS THUS ASSURED OF THE STABILITY OF
SERVICE AND RATES WHICH WERE OF PARAMOUNT IMPORTANCE TO HIM.  MOREOVER,
A BREACH OF THE CONTRACT SUBJECTED THE SHIPPER TO ORDINARY DAMAGES. 

BY CONTRAST, THE DUAL-RATE CONTRACTS HERE REQUIRE THE CARRIERS TO
CARRY THE SHIPPER'S CARGO ONLY "SO FAR AS THEIR REGULAR SERVICES ARE
AVAILABLE"; RATES ARE "SUBJECT TO REASONABLE INCREASE" WITHIN TWO
CALENDAR MONTHS PLUS THE UNEXPIRED PORTION OF THE MONTH AFTER NOTICE OF
INCREASE IS GIVEN; "EACH MEMBER OF THE CONFERENCE IS RESPONSIBLE FOR
ITS OWN PART ONLY IN THIS AGREEMENT"; THE AGREEMENT IS TERMINABLE BY
EITHER PARTY ON THREE MONTHS' NOTICE; AND FOR A BREACH, "THE SHIPPER
SHALL PAY AS LIQUIDATED DAMAGES TO THE CARRIERS FIFTY PERCENTUM (50%)
OF THE AMOUNT OF FREIGHT WHICH THE SHIPPER WOULD HAVE PAID HAD SUCH
SHIPMENT BEEN MADE IN A VESSEL OF THE CARRIERS AT THE CONTRACT RATE
CURRENTLY IN EFFECT."  UNTIL PAYMENT OF THE LIQUIDATED DAMAGES THE
SHIPPER IS DENIED THE REDUCED RATE, AND IF HE VIOLATES THE AGREEMENT
MORE THAN ONCE IN 12 MONTHS, HE SUFFERS CANCELLATION OF THE AGREEMENT
AND THE DENIAL OF ANOTHER UNTIL ALL LIQUIDATED DAMAGES HAVE BEEN PAID
IN FULL.  THUS UNDER THIS AGREEMENT NOT ONLY IS THERE NO GUARANTEE OF
SERVICES AND RATES FOR A REASONABLY LONG PERIOD, BUT THE LIQUIDATED
DAMAGES PROVISION BEARS A STRONG RESEMBLANCE TO THE FEATURE WHICH
CONGRESS PARTICULARLY OBJECTED TO IN THE OUTLAWED DEFERRED-REBATE
SYSTEM.  CERTAINLY THE COERCIVE FORCE OF HAVING TO PAY SO LARGE A SUM
OF LIQUIDATED DAMAGES TIES THE SHIPPER TO THE CONFERENCE ALMOST AS
FIRMLY AS THE PROSPECT OF LOSING THE REBATE.  IT WOULD BE ANOMALOUS FOR
CONGRESS TO STRIKE DOWN DUAL-RATE CONTRACTS HAVING THE SAME
OBJECTIONABLE PURPOSE AND EFFECT.  EVENTS HAVE PROVED THE ACCURACY OF
THE PREDICTION THAT THE OUTLAWING OF THE DEFERRED-REBATE SYSTEM WOULD
LEAD CONFERENCES TO ADOPT A CONTRACT SYSTEM, AS HERE, SPECIALLY
DESIGNED TO ACCOMPLISH THE SAME RESULT. 

IT IS URGED THAT OUR CONSTRUCTION "PRODUCES A FLAT AND UNQUALIFIED
PROHIBITION OF ANY DISCRIMINATION BY A CARRIER FOR ANY REASON" AND
CONVERTS THE REST OF THE STATUTE INTO SURPLUSAGE.  BUT THAT ARGUMENT
OVERLOOKS THE REVEALED CONGRESSIONAL PURPOSE IN SEC. 14 THIRD.  THAT
PURPOSE, AS WE HAVE SAID, WAS TO OUTLAW PRACTICES IN ADDITION TO THOSE
SPECIFICALLY PROHIBITED ELSEWHERE IN THE SECTION WHEN SUCH PRACTICES
ARE USED TO STIFLE THE COMPETITION OF INDEPENDENT CARRIERS.  THE
CHARACTERIZATIONS "UNJUSTLY DISCRIMINATORY" AND "UNJUSTLY PREJUDICIAL"
FOUND IN OTHER SECTIONS (SECS. 15, 16 AND 17) IMPLY A CONGRESSIONAL
INTENT TO ALLOW SOME LATITUDE IN PRACTICES DEALT WITH BY THOSE
14 THIRD TAKE THEIR GLOSS FROM THE ABUSES SPECIFICALLY PROSCRIBED BY
THE SECTION; THAT IS, THEY ARE CONFINED TO PRACTICES DESIGNED TO STIFLE
OUTSIDE COMPETITION.  (FN15) 

PETITIONERS ARGUE THAT OUR CONSTRUCTION OF SEC. 14 THIRD IS
FORECLOSED BY THIS COURT'S DECISIONS IN UNITED STATES NAVIGATION CO. V.
CUNARD S.S. CO., 284 U.S. 474, AND FAR EAST CONFERENCE V. UNITED
STATES, 342 U.S. 570.  A READING OF THOSE OPINIONS IMMEDIATELY REFUTES
ANY SUGGESTION EITHER THAT THIS ISSUE WAS EXPRESSLY DECIDED IN THOSE
CASES OR THAT OUR HOLDING HERE IS NOT FULLY CONSISTENT WITH THE
DISPOSITION OF THOSE CASES.  IN CUNARD THE PETITIONER HAD FILED A
COMPLAINT IN THE DISTRICT COURT ALLEGING THAT RESPONDENTS HAD CONSPIRED
TO MAINTAIN "A GENERAL TARIFF RATE AND A LOWER CONTRACT RATE, THE
LATTER TO BE MADE AVAILABLE ONLY TO SHIPPERS WHO AGREE TO CONFINE THEIR
SHIPMENTS TO THE LINES OF RESPONDENTS."  284 U.S., AT 479.  THE
DIFFERENTIALS WERE ALLEGED TO BE UNRELATED TO VOLUME OR REGULARITY OF
SHIPMENTS, BUT TO BE WHOLLY ARBITRARY AND UNREASONABLE AND DESIGNED
"FOR THE PURPOSE OF COERCING SHIPPERS TO DEAL EXCLUSIVELY WITH
RESPONDENTS AND REFRAIN FROM SHIPPING BY THE VESSELS OF PETITIONER, AND
THUS EXCLUDE IT ENTIRELY FROM THE CARRYING TRADE BETWEEN THE UNITED
STATES AND GREAT BRITAIN."  ID., AT 480.  AN INJUNCTION WAS SOUGHT
UNDER THE SHERMAN AND CLAYTON ACTS.  THE COURT HELD THAT THE QUESTIONS
RAISED BY THIS COMPLAINT WERE WITHIN THE PRIMARY JURISDICTION OF THE
SHIPPING BOARD AND THEREFORE THE COURTS COULD NOT ENTERTAIN THE SUIT
UNTIL THE BOARD HAD CONSIDERED THE MATTER.  IN FAR EAST CONFERENCE THE
COURT SIMILARLY HELD THAT THE BOARD'S PRIMARY JURISDICTION PRECLUDED
THE UNITED STATES FROM BRINGING ANTITRUST PROCEEDINGS AGAINST A
SHIPPING CONFERENCE MAINTAINING DUAL RATES. 

THE BOARD AND THE CONFERENCE ARGUE THAT, IF THE COURT IN THESE
EARLIER CASES HAD THOUGHT THAT SEC. 14 THIRD IN ANY WAY MAKES DUAL
RATES PER SE ILLEGAL AND THUS NOT WITHIN THE POWER OF THE BOARD TO
AUTHORIZE, IT WOULD NOT HAVE FOUND IT NECESSARY TO REQUIRE THAT THE
BOARD FIRST PASS UPON THE CLAIMS.  BUT IN THE CUNARD CASE THE COURT
SAID: 

"WHETHER A GIVEN AGREEMENT AMONG SUCH CARRIERS SHOULD BE HELD TO
CONTRAVENE THE ACT MAY DEPEND UPON A CONSIDERATION OF ECONOMIC
RELATIONS, OF FACTS PECULIAR TO THE BUSINESS OR ITS HISTORY, OF
COMPETITIVE CONDITIONS IN RESPECT OF THE SHIPPING OF FOREIGN CONTRIES,
AND OF OTHER RELEVANT CIRCUMSTANCES, GENERALLY UNFAMILIAR TO A JUDICIAL
TRIBUNAL, BUT WELL UNDERSTOOD BY AN ADMINISTRATIVE BODY ESPECIALLY
TRAINED AND EXPERIENCED IN THE INTRICATE AND TECHNICAL FACTS AND USAGES
OF THE SHIPPING TRADE; AND WITH WHICH THAT BODY, CONSEQUENTLY, IS
BETTER ABLE TO DEAL."  284 U.S., AT 485. 

SIMILARLY, IN THE FAR EAST CONFERENCE CASE: 

"THE COURT IN CUNARD THUS APPLIED A PRINCIPLE, NOW FIRMLY
ESTABLISHED, THAT IN CASES RAISING ISSUES OF FACT NOT WITHIN THE
CONVENTIONAL EXPERIENCE OF JUDGES OR CASES REQUIRING THE EXERCISE OF
ADMINISTRATIVE DISCRETION, AGENCIES CREATED BY CONGRESS FOR REGULATING
THE SUBJECT MATTER SHOULD NOT BE PASSED OVER.  THIS IS SO EVEN THOUGH
THE FACTS AFTER THEY HAVE BEEN APPRAISED BY SPECIALIZED COMPETENCE
SERVE AS A PREMISE FOR LEGAL CONSEQUENCES TO BE JUDICIALLY DEFINED. 
UNIFORMITY AND CONSISTENCY IN THE REGULATION OF BUSINESS ENTRUSTED TO A
PARTICULAR AGENCY ARE SECURED, AND THE LIMITED FUNCTIONS OF REVIEW BY
THE JUDICIARY ARE MORE RATIONALLY EXERCISED, BY PRELIMINARY RESORT FOR
ASCERTAINING AND INTERPRETING THE CIRCUMSTANCES UNDERLYING LEGAL ISSUES
TO AGENCIES THAT ARE BETTER EQUIPPED THAN COURTS BY SPECIALIZATION, BY
INSIGHT GAINED THROUGH EXPERIENCE, AND BY MORE FLEXIBLE PROCEDURE." 
342 U.S., AT 574-575. 

IT IS, THEREFORE, VERY CLEAR THAT THESE CASES, WHILE HOLDING THAT THE
BOARD HAD PRIMARY JURISDICTION TO HEAR THE CASE IN THE FIRST INSTANCE,
DID NOT SIGNIFY THAT THE STATUTE LEFT THE BOARD FREE TO APPROVE OR
DISAPPROVE THE AGREEMENTS UNDER ATTACK.  RATHER, THOSE CASES RECOGNIZED
THAT IN CERTAIN KINDS OF LITIGATION PRACTICAL CONSIDERATIONS DICTATE A
DIVISION OF FUNCTIONS BETWEEN COURT AND AGENCY UNDER WHICH THE LATTER
MAKES A PRELIMINARY, COMPREHENSIVE INVESTIGATION OF ALL THE FACTS,
ANALYZES THEM, AND APPLIES TO THEM THE STATUTORY SCHEME AS IT IS
CONSTRUED.  COMPARE DENVER UNION STOCK YARD CO. V. PRODUCERS LIVESTOCK
MARKETING ASSN., ANTE, P. 282.  IT IS RECOGNIZED THAT THE COURTS, WHILE
RETAINING THE FINAL AUTHORITY TO EXPOUND THE STATUTE, SHOULD AVAIL
THEMSELVES OF THE AID IMPLICIT IN THE AGENCY'S SUPERIORITY IN GATHERING
THE RELEVANT FACTS AND IN MARSHALING THEM INTO A MEANINGFUL PATTERN. 
CASES ARE NOT DECIDED, NOR THE LAW APPROPRIATELY UNDERSTOOD, APART FROM
AN INFORMED AND PARTICULARIZED INSIGHT INTO THE FACTUAL CIRCUMSTANCES
OF THE CONTROVERSY UNDER LITIGATION. 

THUS THE COURT'S ACTION IN CUNARD AND FAR EAST CONFERENCE IS TO BE
TAKEN AS A DEFERRAL OF WHAT MIGHT COME TO BE THE ULTIMATE QUESTION -
THE CONSTRUCTION OF SEC. 14 THIRD - RATHER THAN AN IMPLICIT HOLDING
THAT THE BOARD COULD PROPERLY APPROVE THE PRACTICES THERE INVOLVED. 
THE HOLDING THAT THE BOARD HAD PRIMARY JURISDICTION, IN SHORT, WAS A
DEVICE TO PREPARE THE WAY, IF THE LITIGATION SHOULD TAKE ITS ULTIMATE
COURSE, FOR A MORE INFORMED AND PRECISE DETERMINATION BY THE COURT OF
THE SCOPE AND MEANING OF THE STATUTE AS APPLIED TO THOSE PARTICULAR
CIRCUMSTANCES.  TO HAVE HELD OTHERWISE WOULD, NECESSARILY, INVOLVE THE
COURT IN COMPARATIVELY ABSTRACT EXPOSITION. 

THIS CONSIDERATION, MOREOVER, IS PARTICULARLY COMPELLING IN LIGHT OF
OUR PRESENT HOLDING.  SINCE, AS WE HOLD, SEC. 14 THIRD STRIKES DOWN
DUAL-RATE SYSTEMS ONLY WHERE THEY ARE EMPLOYED AS PREDATORY DEVICES,
THEN PRECISE FINDINGS BY THE BOARD AS TO A PARTICULAR SYSTEM'S INTENT
AND EFFECT WOULD BECOME ESSENTIAL TO A JUDICIAL DETERMINATION OF THE
SYSTEM'S VALIDITY UNDER THE STATUTE.  IN NEITHER CUNARD NOR FAR EAST
CONFERENCE DID THE COURT HAVE THE ASSISTANCE OF SUCH FINDINGS ON WHICH
TO BASE A DETERMINATION OF VALIDITY.  WE CONCLUDE, THEREFORE, THAT THE
PRESENT HOLDING IS NOT FORECLOSED BY THESE TWO CASES.  (FN16) 

FINALLY, PETITIONERS ARGUE THAT THIS COURT SHOULD NOT CONSTRUE THE
SHIPPING ACT IN SUCH A WAY AS TO OVERTURN THE BOARD'S CONSISTENT
INTERPRETATION.  "THE RULINGS, INTERPRETATIONS AND OPINIONS OF THE
PARTICULAR AGENCY  ...  , WHILE NOT CONTROLLING UPON THE COURTS BY
REASON OF THEIR AUTHORITY, DO CONSTITUTE A BODY OF EXPERIENCE AND
INFORMED JUDGMENT TO WHICH COURTS AND LITIGANTS MAY PROPERLY RESORT FOR
GUIDANCE.  THE WEIGHT OF SUCH A JUDGMENT IN A PARTICULAR CASE WILL
DEPEND UPON THE THOROUGHNESS EVIDENT IN ITS CONSIDERATION, THE VALIDITY
OF ITS REASONING, ITS CONSISTENCY WITH EARLIER AND LATER
PRONOUNCEMENTS, AND ALL THOSE FACTORS WHICH GIVE IT POWER TO PERSUADE,
IF LACKING POWER TO CONTROL."  SKIDMORE V. SWIFT & CO., 323 U.S. 134,
140.  BUT WE ARE HERE CONFRONTED WITH A STATUTE WHOSE ADMINISTRATION
HAS BEEN SHIFTED SEVERAL TIMES FROM ONE AGENCY TO ANOTHER, AND IT IS BY
NO MEANS CLEAR THAT THE BOARD AND ITS PREDECESSORS HAVE TAKEN UNIFORM
AND CONSISTENT POSITIONS IN REGARD TO THE VALIDITY OF DUAL-RATE SYSTEMS
UNDER SEC. 14 THIRD.  (FN17)  SEE ISBRANDTSEN CO. V. UNITED STATES, 96
F. SUPP. 883, 889-891.  IN VIEW OF THE FACT THAT IN THE PRESENT CASE
THE DUAL-RATE SYSTEM WAS INSTITUTED FOR THE PURPOSE OF CURTAILING
ISBRANDTSEN'S COMPETITION, THUS BECOMING A DEVICE MADE ILLEGAL BY
CONGRESS IN SEC. 14 THIRD, WE NEED NOT GIVE CONTROLLING WEIGHT TO THE
VARIOUS TREATMENTS OF DUAL RATES BY THE BOARD UNDER DIFFERENT
CIRCUMSTANCES.  AFFIRMED. 

FN1  4 F.M.B. 706.  THE FEDERAL MARITIME BOARD AND ITS PREDECESSORS
ARE HEREINAFTER REFERRED TO AS "THE BOARD."  ITS PREDECESSORS WERE THE
UNITED STATES SHIPPING BOARD (1916 TO 1933); THE UNITED STATES SHIPPING
BOARD BUREAU IN THE DEPARTMENT OF COMMERCE (1933 TO 1936); AND THE
UNITED STATES MARITIME COMMISSION (1936 TO 1950).    FN2  THE FEDERAL
MARITIME BOARD WAS NAMED A RESPONDENT IN ISBRANDTSEN'S PETITION.  THE
UNITED STATES WAS ALSO NAMED AS STATUTORY RESPONDENT PURSUANT TO 5
U.S.C. SEC. 1034 BUT, APPEARING BY THE DEPARTMENT OF JUSTICE, JOINED
ISBRANDTSEN IN ATTACKING THE BOARD ORDER.  THE SECRETARY OF AGRICULTURE
INTERVENED AND JOINED IN THE JUSTICE DEPARTMENT'S BRIEF.  THE
CONFERENCE INTERVENED BY LEAVE OF THE COURT.  THE SAME PARTIES ARE
BEFORE THIS COURT. 

FN3  99 U.S. APP. D.C. 312, 239 F.2D 933. 

FN4  SECTION 14 PROVIDES: 

"NO COMMON CARRIER BY WATER SHALL, DIRECTLY OR INDIRECTLY, IN RESPECT
TO THE TRANSPORTATION BY WATER OF PASSENGERS OR PROPERTY BETWEEN A PORT
OF A STATE, TERRITORY, DISTRICT, OR POSSESSION OF THE UNITED STATES AND
ANY OTHER SUCH PORT OR A PORT OF A FOREIGN COUNTRY: 

"FIRST.  PAY OR ALLOW, OR ENTER INTO ANY COMBINATION AGREEMENT, OR
UNDERSTANDING, EXPRESS OR IMPLIED, TO PAY OR ALLOW A DEFERRED REBATE TO
ANY SHIPPER.  THE TERM 'DEFERRED REBATE' IN THIS CHAPTER MEANS A RETURN
OF ANY PORTION OF THE FREIGHT MONEY BY A CARRIER TO ANY SHIPPER AS A
CONSIDERATION FOR THE GIVING OF ALL OR ANY PORTION OF HIS SHIPMENTS TO
THE SAME OR ANY OTHER CARRIER, OR FOR ANY OTHER PURPOSE, THE PAYMENT OF
WHICH IS DEFERRED BEYOND THE COMPLETION OF THE SERVICE FOR WHICH IT IS
PAID, AND IS MADE ONLY IF, DURING BOTH THE PERIOD FOR WHICH COMPUTED
AND THE PERIOD OF DEFERMENT, THE SHIPPER HAS COMPLIED WITH THE TERMS OF
THE REBATE AGREEMENT OR ARRANGEMENT. 

"SECOND.  USE A FIGHTING SHIP EITHER SEPARATELY OR IN CONJUNCTION
WITH ANY OTHER CARRIER, THROUGH AGREEMENT OR OTHERWISE.  THE TERM
'FIGHTING SHIP' IN THIS CHAPTER MEANS A VESSEL USED IN A PARTICULAR
TRADE BY A CARRIER OR GROUP OF CARRIERS FOR THE PURPOSE OF EXCLUDING,
PREVENTING, OR REDUCING COMPETITION BY DRIVING ANOTHER CARRIER OUT OF
SAID TRADE. 

"THIRD.  RETALIATE AGAINST ANY SHIPPER BY REFUSING, OR THREATENING TO
REFUSE, SPACE ACCOMMODATIONS WHEN SUCH ARE AVAILABLE, OR RESORT TO
OTHER DISCRIMINATING OR UNFAIR METHODS, BECAUSE SUCH SHIPPER HAS
PATRONIZED ANY OTHER CARRIER OR HAS FILED A COMPLAINT CHARGING UNFAIR
TREATMENT, OR FOR ANY OTHER REASON. 

"FOURTH.  MAKE ANY UNFAIR OR UNJUSTLY DISCRIMINATORY CONTRACT WITH
ANY SHIPPER BASED ON THE VOLUME OF FREIGHT OFFERED, OR UNFAIRLY TREAT
OR UNJUSTLY DISCRIMINATE AGAINST ANY SHIPPER IN THE MATTER OF (A) CARGO
SPACE ACCOMMODATIONS OR OTHER FACILITIES, DUE REGARD BEING HAD FOR THE
PROPER LOADING OF THE VESSEL AND THE AVAILABLE TONNAGE; (B) THE LOADING
AND LANDING OF FREIGHT IN PROPER CONDITION; OR (C) THE ADJUSTMENT AND
SETTLEMENT OF CLAIMS. 

"ANY CARRIER WHO VIOLATES ANY PROVISION OF THIS SECTION SHALL BE
GUILTY OF A MISDEMEANOR PUNISHABLE BY A FINE OF NOT MORE THAN $25,000
FOR EACH OFFENSE." 

FN5  ISBRANDTSEN'S VESSELS ARE NOT EQUIPPED WITH REFRIGERATED SPACE
OR SILKROOMS, AS ARE MANY OF THE CONFERENCE VESSELS, AND DO NOT COMPETE
FOR CARGOES REQUIRING THESE FACILITIES. 

FN6  THE COMPARATIVE SAILINGS AND CARRYINGS ARE INDICATED IN THE
FOLLOWING TABLE: (TABLE OMITTED.) 

FN7  ON JANUARY 21, 1954, THE COURT OF APPEALS HANDED DOWN ITS FINAL
DECISION HOLDING THAT SEC. 15 OF THE SHIPPING ACT REQUIRED THE BOARD TO
HOLD A HEARING ON THE PROPOSED DUAL-RATE SYSTEM BEFORE APPROVAL.  93
U.S. APP. D.C. 293, 211 F.2D 51. 

FN8  THE BOARD DID MODIFY THE EXCLUSIVE-PATRONAGE CONTRACTS TO DELETE
FROM THEIR COVERAGE REFRIGERATED CARGOES FOR WHICH ISBRANDTSEN DID NOT
COMPETE. 

FN9  PROCEEDINGS OF THE HOUSE COMMITTEE ON THE MERCHANT MARINE AND
FISHERIES IN THE INVESTIGATION OF SHIPPING COMBINATIONS UNDER HOUSE
RESOLUTION 587, HEARINGS, 62D CONG.  (HEREINAFTER "HEARINGS.") 

FN10  H.R. DOC. NO. 805, 63D CONG., 2D SESS.  (HEREINAFTER
"REPORT.") 

FN11  H.R. REP. NO. 659, 64TH CONG., 1ST SESS. 27; SEE S. REP. NO.
689, 64TH CONG., 1ST SESS. 7.  THE ALEXANDER REPORT WAS SUBMITTED IN
1914 TO THE 63D CONGRESS AND A BILL TO CARRY OUT ITS RECOMMENDATIONS
WAS INTRODUCED BUT NOT PASSED.  H.R. 17328, 63D CONG., 2D SESS.  IN THE
FOLLOWING CONGRESS SUBSTANTIALLY THE SAME BILL WAS REINTRODUCED, H.R.
15455, 64TH CONG., 1ST SESS., AND BECAME THE SHIPPING ACT OF 1916. 

FN12  SECTION 15 PROVIDES: 

"EVERY COMMON CARRIER BY WATER, OR OTHER PERSON SUBJECT TO THIS
CHAPTER, SHALL FILE IMMEDIATELY WITH THE FEDERAL MARITIME BOARD A TRUE
COPY, OR, IF ORAL, A TRUE AND COMPLETE MEMORANDUM, OF EVERY AGREEMENT,
WITH ANOTHER SUCH CARRIER OR OTHER PERSON SUBJECT TO THIS CHAPTER, OR
MODIFICATION OR CANCELLATION THEREOF, TO WHICH IT MAY BE A PARTY OR
CONFORM IN WHOLE OR IN PART, FIXING OR REGULATING TRANSPORTATION RATES
OR FARES; GIVING OR RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER
SPECIAL PRIVILEGES OR ADVANTAGES; CONTROLLING, REGULATING, PREVENTING,
OR DESTROYING COMPETITION; POOLING OR APPORTIONING EARNINGS, LOSSES, OR
TRAFFIC; ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE
NUMBER AND CHARACTER OF SAILINGS BETWEEN PORTS; LIMITING OR REGULATING
IN ANY WAY THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO
BE CARRIED; OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL,
OR COOPERATIVE WORKING ARRANGEMENT.  THE TERM 'AGREEMENT' IN THIS

"THE BOARD MAY BY ORDER DISAPPROVE, CANCEL, OR MODIFY ANY AGREEMENT,
OR ANY MODIFICATION OR CANCELLATION THEREOF, WHETHER OR NOT PREVIOUSLY
APPROVED BY IT, THAT IT FINDS TO BE UNJUSTLY DISCRIMINATORY OR UNFAIR
AS BETWEEN CARRIERS, SHIPPERS, EXPORTERS, IMPORTERS, OR PORTS, OR
BETWEEN EXPORTERS FROM THE UNITED STATES AND THEIR FOREIGN COMPETITORS
OR TO OPERATE TO THE DETRIMENT OF THE COMMERCE OF THE UNITED STATES, OR
TO BE IN VIOLATION OF THIS CHAPTER, AND SHALL APPROVE ALL OTHER
AGREEMENTS, MODIFICATIONS, OR CANCELLATIONS. 

     *         *         *         *         *  "EVERY AGREEMENT,
MODIFICATION, OR CANCELLATION LAWFUL UNDER THIS SECTION SHALL BE
EXCEPTED FROM THE PROVISIONS OF THE ANTITRUST ACTS  ...  ."  39 STAT.
733, AS AMENDED, 46 U.S.C. SEC. 814. 

FN13  BOTH THE SECTION WHICH BECAME SEC. 14 THIRD AND THE SECTION
WHICH BECAME SEC. 15, AS ORIGINALLY PROPOSED, USED THE LANGUAGE
"DISCRIMINATING OR UNFAIR."  H.R. 17328, 63D CONG., 2D SESS. THE BILL
WHICH BECAME THE SHIPPING ACT, H.R. 15455, 64TH CONG., 1ST SESS.,
SUBSTITUTED "UNJUSTLY DISCRIMINATORY OR UNFAIR" IN SEC. 15 BUT LEFT
UNTOUCHED "DISCRIMINATING OR UNFAIR" IN SEC. 14 THIRD. 

FN14  THE BOARD ESTIMATED THAT ISBRANDTSEN WOULD LOSE APPROXIMATELY
TWO-THIRDS OF ITS 1952 VOLUME.   "  ...  IT IS PROBABLE THAT
ISBRANDTSEN WILL RETAIN 10 PERCENT OR MORE OF THE CARGO MOVING IN THE
TRADE AS AGAINST THE 26 PERCENT CARRIED BY IT IN 1952  ...  ."  4
F.M.B. 706, 737, 1956 AM. MAR. CAS. 414, 451. 

FN15  THE COURT OF APPEALS MADE A PARTIAL APPLICATION OF THE RULE OF
EJUSDEM GENERIS AND RELATED THE "RESORT TO" CLAUSE TO RETALIATION,
HOLDING THE DUAL-RATE CONTRACT OR SUIT WAS RETALIATORY AND WITHIN THE
BAN OF THE SECTION.  THE BOARD URGES THAT THE COURT OF APPEALS DID NOT
CARRY THE RULE OF EJUSDEM GENERIS FAR ENOUGH, THAT BY CARRYING THE RULE
"A HAND'S BREADTH FARTHER" AND ALSO RELATING - AND LIMITING - THE
"RESORT TO" CLAUSE TO THE REFUSAL OF SPACE ACCOMMODATIONS AND SIMILAR
SERVICES TO SHIPPERS, THE DUAL-RATE CONTRACT FALLS WITHOUT THE
PROHIBITION BECAUSE THE CONTRACT IS CONCERNED ONLY WITH CHARGES FOR
SERVICES AND NOT WITH DENIAL OF SERVICES.  WE DO NOT BELIEVE THAT THESE
CONSTRUCTIONS CAN BE RECONCILED WITH THE LANGUAGE OF THE STATUTE OR THE
SCOPE OF THE CONGRESSIONAL PLAN. 

FN16  CERTAINLY IT MUST BE ASSUMED THAT THE COURT WOULD REFRAIN FROM
SETTLING SUB SILENTIO AN ISSUE OF SUCH OBVIOUS IMPORTANCE AND
DIFFICULTY PLAINLY REQUIRING A CLEARLY EXPRESSED DISPOSITION. 

PETITIONERS' RELIANCE ON SWAYNE & HOYT, LTD., V. UNITED STATES, 300
U.S. 297, IS SIMILARLY MISPLACED.  IN THAT CASE THE COURT UPHELD THE
ADMINISTRATIVE DETERMINATION THAT A DUAL-RATE SYSTEM GAVE AN "UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE" UNDER SEC. 16 OF THE SHIPPING
ACT.  BECAUSE THE COURT SUSTAINED THE FINDING AS SUPPORTED BY
SUBSTANTIAL EVIDENCE IT DID NOT NEED TO REACH THE MORE CONTENTIOUS
PROBLEM OF WHETHER THAT PARTICULAR CONTRACT WAS ILLEGAL UNDER SEC. 14
THIRD. 

FN17  COMPARE, E.G., EDEN MINING CO. V. BLUEFIELDS FRUIT & S.S. CO.,
1 U.S.S.B. 41, AND CONTRACT ROUTING RESTRICTIONS, 2 U.S.M.C. 220, 226
227, WITH W.T. RAWLEIGH CO. V. STOOMVART, 1 U.S.S.B. 285, 290. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

THE COURT TODAY HOLDS THAT ANY DUAL SYSTEM OF INTERNATIONAL STEAMSHIP
RATES TIED TO EXCLUSIVE PATRONAGE CONTRACTS THAT IS DESIGNED TO MEET
OUTSIDE COMPETITION - HOWSOEVER JUSTIFIED IT MAY BE AS A REASONABLE
MEANS OF COUNTERACTING CUTTHROAT COMPETITION - VIOLATES SEC. 14 OF THE
SHIPPING ACT OF 1916 (FN1) AND CANNOT BE APPROVED BY THE FEDERAL
MARITIME BOARD PURSUANT TO SEC. 15 OF THAT ACT.  THE COURT THUS OUTLAWS
A PRACTICE THAT HAS PREVAILED AMONG INTERNATIONAL STEAMSHIP CONFERENCES
FOR HALF A CENTURY, (FN2) THAT IS PRESENTLY EMPLOYED BY AT LEAST HALF
OF A HUNDRED-ODD CONFERENCES SUBJECT TO BOARD JURISDICTION, (FN3) AND
THAT HAS BEEN FOUND BY THE BOARD IN THIS CASE TO DECREASE THE
PROBABILITY OF RUINOUS RATE WARS IN THE SHIPPING INDUSTRY.  (FN4)  IN
DOING SO, THE COURT DOES MORE THAN SET ASIDE A WEIGHTY DECISION OF THE
FEDERAL MARITIME BOARD.  IT COULD DO SO ONLY BY RENDERING MEANINGLESS
TWO PRIOR DECISIONS IN WHICH THIS COURT RESPECTED THE POWER GIVEN BY
CONGRESS TO THE BOARD, WITHIN THE USUAL LIMITS OF ADMINISTRATIVE
DISCRETION, TO APPROVE OR DISAPPROVE SUCH AGREEMENTS. 

THE AGREEMENT INVOLVED IN THIS CASE IS TYPICAL OF THE CONTRACTS USED
BY THE LOOSE ASSOCIATIONS OF STEAMSHIP LINES KNOWN AS "CONFERENCES" TO
EFFECTUATE THEIR DUAL-RATE SYSTEMS.  SEE MARX, INTERNATIONAL SHIPPING
CARTELS, 207-210.  THE CONTRACTING SHIPPER AGREES TO FORWARD ALL OF HIS
SHIPMENTS MOVING IN THE "TRADE" OR ROUTE OF THE CONFERENCE BY BOTTOMS
OF CONFERENCE MEMBERS (SEC. 1).  IN RETURN, THE CONFERENCE MEMBERS, "SO
FAR AS THEIR REGULAR SERVICES ARE AVAILABLE," AGREE TO CARRY THE
SHIPPER'S GOODS AT RATES BELOW THOSE CHARGED TO NONCONTRACTING
SHIPPERS; RATES ARE SUBJECT TO REASONABLE INCREASE UPON SPECIFIED
NOTICE (SEC. 2).  THE CONFERENCE MEMBERS AGREE TO MAINTAIN SERVICE
ADEQUATE TO THE REASONABLE REQUIREMENTS OF THE TRADE, AND IF THEY FAIL
TO PROVIDE THE SHIPPER (WHO MAY ORDINARILY SELECT WHICH OF THE
CONFERENCE MEMBERS' VESSELS WILL CARRY HIS GOODS) WITH NEEDED SPACE, HE
MAY OBTAIN SPACE FROM NONCONFERENCE CARRIERS (SEC. 4).  IF THE SHIPPER
MAKES ANY SHIPMENTS IN VIOLATION OF THE AGREEMENT, HE MUST PAY AS
LIQUIDATED DAMAGES 50 PERCENT OF THE AMOUNT OF FREIGHT HE WOULD HAVE
PAID IF HE HAD MADE THE SHIPMENT UNDER THE CONTRACT, AND HE IS NOT
ENTITLED TO CONTRACT RATES UNTIL HE PAYS THESE DAMAGES (SEC. 5).  IF
THE SHIPPER VIOLATES THE AGREEMENT MORE THAN ONCE IN A TWELVE-MONTH
PERIOD, THE AGREEMENT IS CANCELLED, AND NO NEW AGREEMENT WILL BE
ENTERED INTO UNTIL ALL DAMAGES ARE PAID (IBID.).  EITHER PARTY MAY
CANCEL THE AGREEMENT ON THREE MONTHS' NOTICE (SEC. 9), AND ANY DISPUTE
ARISING OUT OF THE AGREEMENT IS TO BE SUBMITTED TO ARBITRATION (SEC.
10). 

SUCH DIFFERENCES AS EXIST AMONG THE DUAL-RATE SYSTEMS THAT HAVE FOR
LONG BEEN IN WIDE USE IN INTERNATIONAL OCEAN TRANSPORTATION ARE
IRRELEVANT IF EACH SUCH SYSTEM IS TO BE JUDGED BY THE NEW TEST LAID
DOWN BY THE COURT:  IS IT AIMED AT MEETING OUTSIDE COMPETITION?  OF
COURSE THESE EXCLUSIVE PATRONAGE CONTRACTS AND THE DUAL-RATE SYSTEMS OF
WHICH THEY ARE AN INTEGRAL PART ARE DESIGNED TO MEET NONCONFERENCE
COMPETITION.  AND THERE SHOULD BE NO DOUBT THAT TODAY'S DECISION
OUTLAWS SUCH SYSTEMS.  THIS RESULT CANNOT BE CLOUDED BY THE COURT'S
RELIANCE UPON "FINDINGS" OF THE BOARD THAT IT: 

"CONSIDERS THE INAUGURATION OF A DUAL-RATE SYSTEM TO BE A NECESSARY
COMPETITIVE MEASURE TO OFFSET THE EFFECT OF NON-CONFERENCE COMPETITION
IN THIS TRADE."  4 F.M.B. 706, 736, 1956 AM. MAR. CAS. 414, 450. 

AND THAT: 

"A REDUCTION IN THE AMOUNT OF CONFERENCE SAILINGS OR OTHER SOLUTION
TO THE OVERTONNAGING PROBLEM WOULD NOT MITIGATE THE CONFERENCE'S NEED
TO MEET THE COMPETITION OF ISBRANDTSEN IN ORDER TO OBTAIN FOR ITS
MEMBERS A GREATER PARTICIPATION IN THE CARGO MOVING IN THE TRADE."  4
F.M.B., AT 737, 1956 AM. MAR. CAS., AT 451. 

THESE STATEMENTS IN THE BOARD'S OPINION ARE NOTHING MORE THAN A
RECOGNITION OF THE DUAL-RATE SYSTEM AS A DEVICE FOR MEETING OUTSIDE
COMPETITION; THEY PROVIDE A BASIS NEITHER FOR DISTINGUISHING THE
SITUATION BEFORE US FROM ANY OTHER FAMILIAR USE OF A DUAL-RATE SYSTEM
NOR FOR CONCLUDING THAT THE CONFERENCE MEMBERS IN THIS CASE INSTITUTED
THE SYSTEM IN ORDER TO "STIFLE" OUTSIDE COMPETITION. 

WHILE LIMITS HAVE BEEN IMPOSED UPON ENTERPRISE IN MEETING
COMPETITION, WHICH IS ITSELF THE GOVERNING PRINCIPLE OF OUR ECONOMIC
SYSTEM, THESE LIMITS, EMBODIED IN THE ANTITRUST LAWS, WERE FOUND TO BE
INAPPLICABLE TO, BECAUSE DESTRUCTIVE OF OUR NATIONAL INTEREST IN, THE
INTERNATIONAL OCEAN TRANSPORTATION INDUSTRY.  THE UNITED STATES
OBVIOUSLY COULD NOT COMPLETELY REGULATE THE FOREIGN CARRIERS WITH WHOM
AMERICAN CARRIERS COMPETE (NOT TO MENTION THE CARRIERS THAT SERVE
FOREIGN SHIPPERS WITH WHOM AMERICAN SHIPPERS COMPETE).  IN VIEW OF THE
PREVAILING CHARACTERISTICS OF THE INDUSTRY, IT EARLY BECAME APPARENT
THAT IT WOULD, ON THE WHOLE, BE IN THE NATIONAL INTEREST TO TOLERATE
SOME PRACTICES OF STEAMSHIP LINES THAT IN OTHER INDUSTRIES WOULD BE
DEEMED INADMISSIBLE.  FOR THE ALTERNATIVE, SO IT WAS CONCLUDED, WOULD
BE TO PUT IT WITHIN THE POWER OF UNREGULATED FOREIGN CARRIERS SERIOUSLY
TO INJURE AMERICAN FIRMS - BOTH CARRIERS AND SHIPPERS - IF NOT, INDEED,
TO PUT THEM OUT OF BUSINESS.  AND SO, IN THE DEVELOPMENT OF A SCHEME
FOR REGULATING THIS INTERNATIONAL INDUSTRY, SELF-PROTECTIVE MEASURES BY
WAY OF COLLECTIVE ACTION WERE NOT LEFT TO THE CONDEMNATION OF THE
SHERMAN AND CLAYTON ACTS.  IN ORDER TO APPRECIATE THE SHIPPING ACT OF
1916 AS AN ATTEMPT TO BALANCE THE NEED FOR SOME REGULATION WITH THE
ECONOMIC AND POLITICAL OBJECTIONS TO SWEEPING THE SHIPPING INDUSTRY
UNDER THE ANTITRUST CONCEPT, THE CIRCUMSTANCES THAT BEGOT THE ACT MUST
BE RECALLED.    THE SECOND HALF OF THE NINTEENTH CENTURY SAW A
TREMENDOUS RISE IN THE DEVELOPMENT OF OCEAN TRANSPORATION BY
STEAMSHIP.  UNFORTUNATELY, THE SUPPLY OF AVAILABLE CARGO SPACE
INCREASED DURING THIS PERIOD MUCH MORE RAPIDLY THAN THE DEMAND FOR IT.
THE INEVITABLE RESULT WAS CUTTHROAT COMPETITION AMONG STEAMSHIP
OWNERS.  THIS IN TURN WAS FOLLOWED BY MERGERS OF OWNERSHIP AND BY
CONCERTED EFFORTS AMONG INDIVIDUAL OWNERS TO LIMIT COMPETITION.  THE
PRACTICES BY WHICH THIS END WAS PURSUED LED TO ABUSES AND DEMANDS FOR
THEIR CORRECTION, TO WHICH A NUMBER OF GOVERNMENTS AT THE TURN OF THE
CENTURY BEGAN TO DIRECT THEIR ATTENTION.  A SERIES OF INVESTIGATIONS OF
RATES AND PRACTICES IN VARIOUS PARTS OF THE BRITISH EMPIRE WAS FOLLOWED
BY THE APPOINTMENT IN 1906 OF THE ROYAL COMMISSION ON SHIPPING RINGS,
WHICH RENDERED ITS REPORT IN 1909.  SEE, GENERALLY, MARX, SUPRA, AT 45
50; SEE ALSO JOHNSON AND HUEBNER, PRINCIPLES OF OCEAN TRANSPORTATION,
263-302.  IN THE UNITED STATES, THE DEPARTMENT OF JUSTICE IN 1911
BROUGHT TWO PROCEEDINGS AGAINST THREE STEAMSHIP CONFERENCES TO ENJOIN
COMPETITIVE PRACTICES IN ALLEGED VIOLATION OF THE SHERMAN ACT, UNITED
STATES V. PRINCE LINE, LTD., 220 F. 230; UNITED STATES V. HAMBURG
AMERICAN S.S. LINE, 216 F. 971.  (FN5) 

THE TERMS OF THE RESOLUTIONS THAT GAVE RISE TO THE HISTORIC
INVESTIGATION OF SHIPPING COMBINATIONS BY THE HOUSE COMMITTEE ON THE
MERCHANT MARINE AND FISHERIES IN 1912-1913, H. RES. 425 AND H. RES.
587, 62D CONG., 2D SESS., 48 CONG. REC. 2835-2836, 9159-9160, MANIFEST
THE CONCERN OF CONGRESS OVER THESE STEAMSHIP CONFERENCES AND THEIR
PRACTICES.  THE INVESTIGATION WAS THOROUGH AND DETAILED.  THE
COMMITTEE, UNDER THE CHAIRMANSHIP OF REPRESENTATIVE JOSHUA W. ALEXANDER
OF MISSOURI, ELICITED GREAT QUANTITIES OF RELEVANT DATA FROM SHIPPERS,
CARRIERS, TRADE ORGANIZATIONS AND THE DEPARTMENTS OF STATE AND JUSTICE,
INCLUDING COPIES OF MANY KINDS OF AGREEMENTS AMONG CARRIERS AND BETWEEN
CARRIERS AND SHIPPERS, AND IT HELD EXTENSIVE PATRONAGE AGREEMENTS
BETWEEN SHIPPERS AND CONFERENCES PROVIDING FOR A DUAL RATE, SEE, E.G.,
HEARINGS BEFORE THE HOUSE COMMITTEE ON THE MERCHANT MARINE AND
FISHERIES IN THE INVESTIGATION OF SHIPPING COMBINATIONS, 62D CONG.,
248, 254, 262-263; SEE ALSO ID., AT 246, 263. 

IN 1914 THE COMMITTEE SUBMITTED ITS COMPREHENSIVE REPORT.  IN
SUMMARIZING THE COMPETITIVE METHODS USED BY STEAMSHIP CONFERENCES IN
THE AMERICAN FOREIGN TRADE, THE REPORT DISCUSSED, UNDER THE HEADING
"MEETING THE COMPETITION OF LINES OUTSIDE OF THE CONFERENCE," DEFERRED
REBATE SYSTEMS, THE USE OF FIGHTING SHIPS, AGREEMENTS WITH AMERICAN
RAILROADS, AND SUCH TYPES OF CONTRACTS WITH SHIPPERS AS INDIVIDUAL
REQUIREMENTS CONTRACTS, CONTRACTS GIVING PREFERENTIAL RATES TO LARGE
SHIPPERS, AND THE FOLLOWING: 

"(A)  JOINT CONTRACTS MADE BY THE CONFERENCE AS A WHOLE.  - SUCH
CONTRACTS ARE MADE FOR THE ACCOUNT OF ALL THE LINES IN THE AGREEMENT,
EACH CARRYING ITS PROPORTION OF THE CONTRACT FREIGHT AS TENDERED FROM
TIME TO TIME.  THE CONTRACTING LINES AGREE TO FURNISH STEAMERS AT
REGULAR INTERVALS AND THE SHIPPER AGREES TO CONFINE ALL SHIPMENTS TO
CONFERENCE STEAMERS, AND TO ANNOUNCE THE QUANTITY OF CARGO TO BE
SHIPPED IN AMPLE TIME TO ALLOW FOR THE PROPER SUPPLY OF TONNAGE.  THE
RATES ON SUCH CONTRACTS ARE LESS THAN THOSE SPECIFIED IN THE REGULAR
TARIFF, BUT THE LINES GENERALLY PURSUE A POLICY OF GIVING THE SMALL
SHIPPERS THE SAME CONTRACT RATES AS THE LARGE SHIPPERS, I.E. ARE
WILLING AT ALL TIMES TO CONTRACT WITH ALL SHIPPERS ON THE SAME TERMS." 
REPORT ON STEAMSHIP AGREEMENTS AND AFFILIATIONS IN THE AMERICAN FOREIGN
AND DOMESTIC TRADE, H.R. DOC. NO. 805, 63D CONG., 2D SESS. 290. 

THERE CAN BE NO DOUBT THAT THE COMMITTEE WAS AMPLY ALIVE TO THE
PRIMARY PURPOSE OF THE DUAL-RATE SYSTEM.  BUT IT DID NOT, IN
SUBSEQUENTLY DISCUSSING (ID., AT 304-307) THE "DISADVANTAGES OF
SHIPPING CONFERENCES AND AGREEMENTS, AS NOW CONDUCTED," MAKE ANY
REFERENCE TO THE SYSTEM AS SUCH, ALTHOUGH IT DEALT EXTENSIVELY AND
DISAPPROVINGLY, ON THE BASIS OF EVIDENCE PUT BEFORE IT, WITH SUCH
PRACTICES AS DEFERRED REBATES, FIGHTING SHIPS, AND RETALIATION AGAINST
SHIPPERS FOR AIRING GRIEVANCES.  NOR WERE THERE ANY STRICTURES AGAINST
DUAL-RATE SYSTEMS IN THE SURVEY OF RECOMMENDATIONS OF WITNESSES AT THE
HEARINGS FOR CORRECTIVE LEGISLATION (ID., AT 307-314), ALTHOUGH IT WAS
THERE NOTED THAT RECOMMENDATIONS WERE MADE IN FAVOR OF PROHIBITIONS
AGAINST DEFERRED REBATES AND RETALIATION BY REFUSAL OF ACCOMMODATIONS
TO A SHIPPER BECAUSE "HE MAY HAVE SHIPPED BY AN INDEPENDENT LINE, OR
MAY HAVE FILED A COMPLAINT CHARGING UNFAIR TREATMENT, OR FOR OTHER
UNJUST REASONS."  ID., AT 313. 

IN MAKING ITS OWN RECOMMENDATIONS (ID., AT 415-421), THE COMMITTEE
RECOGNIZED THAT STEAMSHIP LINES ALMOST UNIVERSALLY FORM CONFERENCES AND
ENTER INTO AGREEMENTS FOR THE PURPOSE (AMONG OTHERS) OF "MEETING THE
COMPETITION OF NON-CONFERENCE LINES."  ID., AT 415.  THE COMMITTEE
RECOGNIZED THAT IT HAD TO CHOOSE BETWEEN PROHIBITION OF THESE
CONFERENCES OR SUBJECTION OF THEM TO GOVERNMENT SUPERVISION. 

"IT IS THE VIEW OF THE COMMITTEE THAT OPEN COMPETITION CAN NOT BE
ASSURED FOR ANY LENGTH OF TIME BY ORDERING EXISTING AGREEMENTS
TERMINATED.  THE ENTIRE HISTORY OF STEAMSHIP AGREEMENTS SHOWS THAT IN
OCEAN COMMERCE THERE IS NO HAPPY MEDIUM BETWEEN WAR AND PEACE WHEN
SEVERAL LINES ENGAGE IN THE SAME TRADE.  MOST OF THE NUMEROUS
AGREEMENTS AND CONFERENCE ARRANGEMENTS DISCUSSED IN THE FOREGOING
REPORT WERE THE OUTCOME OF RATE WARS, AND REPRESENT A TRUCE BETWEEN THE
CONTENDING LINES."  ID., AT 416. 

TO PROHIBIT EXISTING ARRANGEMENTS, SAID THE COMMITTEE, WOULD BE TO
INVITE RATE WARS LEADING TO MONOPOLY OR TO THE EXPOSURE OF AMERICAN
SHIPPERS AND LINES TO DISASTROUS COMPETITION WITH FOREIGN SHIPPERS AND
LINES.  AMONG THE COMPLAINTS RELATING TO EXISTING CONDITIONS WAS "THE
UNFAIRNESS OF CERTAIN METHODS - SUCH AS FIGHTING SHIPS, DEFERRED
REBATES, AND THREATS TO REFUSE SHIPPING ACCOMMODATIONS - USED BY SOME
CONFERENCE LINES TO MEET THE COMPETITION OF NONCONFERENCE LINES."  ID.,
AT 417.  THE COMMITTEE CONCLUDED THAT THE SYSTEM OF CONFERENCES AND
AGREEMENTS WAS NOT TO BE UPROOTED.  ITS DISADVANTAGES AND ABUSES MUST
BE CURBED BY EFFECTIVE GOVERNMENT CONTROL. 

AMONG THE SPECIFIC RECOMMENDATIONS OF THE COMMITTEE WERE THAT
CARRIERS BE REQUIRED TO FILE FOR APPROVAL WITH THE REGULATORY AGENCY
(THE COMMITTEE RECOMMENDED USE OF THE INTERSTATE COMMERCE COMMISSION)
ANY AGREEMENTS AMONG THEMSELVES OR WITH SHIPPERS, WITH THE AGENCY BEING
EMPOWERED TO CANCEL AGREEMENTS IT FOUND TO BE "DISCRIMINATING OR UNFAIR
IN CHARACTER, OR DETRIMENTAL TO THE COMMERCIAL INTERESTS OF THE UNITED
STATES" (ID., AT 420); THAT THE AGENCY BE EMPOWERED TO INVESTIGATE AND
INSTITUTE PROCEEDINGS CONCERNING RATES THAT ARE "UNREASONABLY HIGH, OR
DISCRIMINATING IN CHARACTER AS BETWEEN SHIPPERS" (IBID.), AND: 

"  ...  THAT THE USE OF 'FIGHTING SHIPS' AND DEFERRED REBATES BE
PROHIBITED IN BOTH THE EXPORT AND IMPORT TRADE OF THE UNITED STATES. 
MOREOVER, ALL CARRIERS SHOULD BE PROHIBITED FROM RETALIATING AGAINST
ANY SHIPPER BY REFUSING SPACE ACCOMMODATIONS WHEN SUCH ARE AVAILABLE,
OR BY RESORTING TO OTHER UNFAIR METHODS OF DISCRIMINATION, BECAUSE SUCH
SHIPPER HAS PATRONIZED AN INDEPENDENT LINE, OR HAS FILED A COMPLAINT
CHARGING UNFAIR TREATMENT, OR FOR ANY OTHER REASON."  ID., AT 421. 

THE CAUTIOUS GENERALITY OF THE LATTER PORTION OF THIS LAST
RECOMMENDATION (AND, SURELY, OF THE LEGISLATIVE PROVISION BASED ON IT)
DOUBTLESS REFLECTS A FEELING ON THE PART OF THE COMMITTEE THAT MANY
SHIPPERS REFRAINED FROM DESCRIBING THE VARIOUS FORMS OF AND REASONS FOR
RETALIATION AGAINST THEM BY CARRIERS, FOR FEAR THAT THEY WOULD
SUBSEQUENTLY BE RETALIATED AGAINST FOR MAKING THE DISCLOSURES.  SEE,
E.G., ID., AT 5. 

THE REPORT OF THE COMMITTEE WAS FILED IN FEBRUARY 1914, AND FOUR
MONTHS LATER REPRESENTATIVE ALEXANDER INTRODUCED A BILL, H.R. 17328,
63D CONG., 2D SESS., INCORPORATING ITS RECOMMENDATIONS.  THE BILL
PROVIDED, AMONG OTHER THINGS, THAT CARRIERS BE REQUIRED TO FILE FOR
APPROVAL WITH THE INTERSTATE COMMERCE COMMISSION ANY OF A WIDE VARIETY
OF AGREEMENTS, THAT THE COMMISSION BE EMPOWERED TO CANCEL OR MODIFY
AGREEMENTS THAT IT FOUND "DISCRIMINATING OR UNFAIR AS BETWEEN CARRIERS,
SHIPPERS, EXPORTERS, IMPORTERS, OR PORTS, OR BETWEEN EXPORTERS FROM THE
UNITED STATES AND THEIR FOREIGN COMPETITORS, OR THAT IT MAY FIND TO
OPERATE TO THE DETRIMENT OF THE COMMERCE OF THE UNITED STATES, OR THAT
MAY BE IN VIOLATION OF THIS ACT," AND THAT AGREEMENTS WHEN APPROVED
SHOULD BE EXEMPT FROM THE ANTITRUST LAWS (SEC. 3).  WHERE THE
COMMISSION WAS OF THE OPINION THAT RATES, CHARGES, CLASSIFICATIONS,
REGULATIONS OR PRACTICES WERE "UNJUST OR UNREASONABLE," IT WAS
EMPOWERED TO DETERMINE AND ENFORCE WHAT WOULD BE JUST AND REASONABLE
UNDER THE CIRCUMSTANCES (SEC. 7).  AND THE BILL (SEC. 2) PROVIDED THAT
IT SHOULD BE A MISDEMEANOR (PUNISHABLE BY FINE OF UP TO $25,000) FOR
ANY CARRIER TO ALLOW DEFERRED REBATES, USE A FIGHTING SHIP OR: 

"THIRD.  RETALIATE AGAINST ANY SHIPPER BY REFUSING, OR THREATENING TO
REFUSE, SPACE ACCOMMODATIONS WHEN SUCH ARE AVAILABLE, OR RESORT TO
OTHER DISCRIMINATING OR UNFAIR METHODS, BECAUSE SUCH SHIPPER HAS
PATRONIZED ANY OTHER CARRIER OR HAS FILED A COMPLAINT CHARGING UNFAIR
TREATMENT OR FOR ANY OTHER REASON." 

AS NO ACTION WAS TAKEN ON H.R. 17328 IN 1914, IT WAS REINTRODUCED BY
MR. ALEXANDER IN THE 64TH CONGRESS LATE IN 1915 AS H.R. 450.  SHORTLY
THEREAFTER HE INTRODUCED H.R. 10500, A BILL "TO ESTABLISH A UNITED
STATES SHIPPING BOARD FOR THE PURPOSE OF ENCOURAGING, DEVELOPING, AND
CREATING A NAVAL AUXILIARY AND NAVAL RESERVE AND MERCHANT MARINE TO
MEET THE REQUIREMENTS OF THE COMMERCE OF THE UNITED STATES WITH ITS
TERRITORIES AND POSSESSIONS, AND WITH FOREIGN COUNTRIES, AND FOR OTHER
PURPOSES."  THAT BILL AUTHORIZED THE BOARD TO PURCHASE OR CHARTER
COMMERCIAL VESSELS TO BE LEASED TO PRIVATE CONCERNS IN PEACETIME AND
USED AS A NAVAL AUXILIARY IN WARTIME; THE BILL ALSO (SECS. 9, 10)
PROVIDED FOR VERY GENERAL REGULATION BY THE BOARD OF THE OCEAN
TRANSPORTATION INDUSTRY. 

APPROXIMATELY TWO MONTHS LATER, IN APRIL 1916, MR. ALEXANDER
INTRODUCED H.R. 14337, WHICH ADAPTED HIS EARLIER REGULATORY BILL (H.R.
450) TO THE ADMINISTRATIVE FRAMEWORK OF THE SHIPPING BOARD BILL (H.R.
10500).  THE BILL WAS CONSIDERED IN COMMITTEE WITH A VIEW TO
SUBSTITUTING ITS PROVISIONS FOR THE GENERAL REGULATORY LANGUAGE OF
SECS. 9 AND 10 OF THE SHIPPING BOARD BILL.  SEE HEARINGS BEFORE THE
HOUSE COMMITTEE ON THE MERCHANT MARINE AND FISHERIES ON H.R. 14337,
64TH CONG., 1ST SESS. 5.  IN THESE HEARINGS, THERE WAS NO DISCUSSION OF
THE "RETALIATION" PROVISION OF THE BILL; ATTENTION WAS CONCENTRATED ON
ITS MORE CONTROVERSIAL ASPECTS, SUCH AS THE POWER OF THE BOARD TO
REGULATE RATES. 

AT THE CLOSE OF THESE HEARINGS, IN EARLY MAY 1916, A NEW SHIPPING
BOARD BILL, H.R. 15455, IN WHICH THE SUBSTITUTION OF THE MORE DETAILED
REGULATORY PROVISIONS HAD BEEN MADE, WAS INTRODUCED BY MR. ALEXANDER. 
THE BILL ADDED A "FOURTH" TO THE PROHIBITIONS AGAINST DEFERRED REBATES,
FIGHTING SHIPS AND RETALIATION:  UNFAIR OR UNJUSTLY DISCRIMINATORY
CONTRACTS WITH OR TREATMENT OF SHIPPERS UNDER SPECIFIED CIRCUMSTANCES;
THE STANDARD ("DISCRIMINATING AND UNFAIR") IN THE PROVISION EMPOWERING
THE BOARD TO CANCEL OR MODIFY AGREEMENTS BECAME "UNJUSTLY
DISCRIMINATORY AND UNFAIR."  THE BILL WAS PROMPTLY REPORTED OUT OF THE
MERCHANT MARINE AND FISHERIES COMMITTEE WITH A REPORT THAT SET FORTH IN
EXTENSO THE RECOMMENDATIONS INTO THE 1914 REPORT OF THE INVESTIGATION
OF THE SHIPPING INDUSTRY.  H.R. REP. NO. 659, 64TH CONG., 1ST SESS. 27
31.  THE DEBATE IN THE HOUSE CENTERED ON THE SHIP PURCHASE AND LEASE
PROVISIONS OF THE BILL, AND THE BILL PASSED THE HOUSE WITH NO DETAILED
CONSIDERATION OF THE REGULATORY PROVISIONS.  IN THE SENATE, THE
HEARINGS BEFORE THE COMMITTEE ON COMMERCE WERE ALSO CONCERNED PRIMARILY
WITH THE SHIP PURCHASE AND LEASE PROVISIONS, AS WERE THE FLOOR
DEBATES.  ONCE AGAIN, THE COMMITTEE REPORT SET FORTH THE
RECOMMENDATIONS ARISING OUT OF THE 1914 INVESTIGATION.  S. REP. NO.
689, 64TH CONG., 1ST SESS. 7-11.  WITH NO RELEVANT AMENDMENT TO THE
REGULATORY PORTIONS OF THE BILL, H.R. 15455 PASSED THE SENATE AND
BECAME LAW IN SEPTEMBER OF 1916.  39 STAT. 728. 

AS ENACTED, THEN, THE STATUTE PROVIDED FOR THE FOLLOWING SCHEME OF
REGULATION.  CARRIERS SUBJECT TO THE ACT MUST FILE WITH THE BOARD
COPIES OF AGREEMENTS ESTABLISHING (INTER ALIA) PREFERENTIAL OR
COOPERATIVE ARRANGEMENTS.  SUCH OF THESE AS THE BOARD FINDS "TO BE
UNJUSTLY DISCRIMINATORY OR UNFAIR  ...  OR TO OPERATE TO THE DETRIMENT
OF THE COMMERCE OF THE UNITED STATES, OR TO BE IN VIOLATION OF THIS
ACT," IT MAY DISAPPROVE, CANCEL OR MODIFY; ALL OTHERS IT MUST APPROVE,
AND THOSE APPROVED ARE EXEMPT FROM THE ANTITRUST LAWS (SEC. 15).  AS TO
ANY "RATE, FARE, CHARGE, CLASSIFICATION, TARIFF, REGULATION, OR
PRACTICE" OF CARRIERS THAT THE BOARD FINDS TO BE UNJUST OR
UNREASONABLE, IT MAY TAKE CORRECTIVE MEASURES (SEC. 18).  AS AN
EXCEPTION TO, OR QUALIFICATION UPON, THIS SCHEME, CERTAIN PRACTICES
WERE SPECIFICALLY OUTLAWED AND MAY NOT, THEREFORE, BE APPROVED BY THE
BOARD:  TO ALLOW DEFERRED REBATES, USE FIGHTING SHIPS: 

"  ... RETALIATE AGAINST ANY SHIPPER BY REFUSING, OR THREATENING TO
REFUSE, SPACE ACCOMMODATIONS WHEN SUCH ARE AVAILABLE, OR RESORT TO
OTHER DISCRIMINATING OR UNFAIR METHODS, BECAUSE SUCH SHIPPER HAS
PATRONIZED ANY OTHER CARRIER OR HAS FILED A COMPLAINT CHARGING UNFAIR
TREATMENT, OR FOR ANY OTHER REASON,  ...  ."    AND TREAT OR CONTRACT
WITH SHIPPERS IN CERTAIN UNFAIR OR UNJUSTLY DISCRIMINATORY WAYS;
VIOLATION OF THIS PROVISION IS A MISDEMEANOR PUNISHABLE BY A FINE UP TO
$25,000 (SEC. 14).  (FN6) 

THE FORM THAT THIS REGULATION TAKES, CONSIDERED IN LIGHT OF ITS
LEGISLATIVE BACKGROUND, MAKES CLEAR THE CONGRESSIONAL PURPOSE.  IT WAS
FOUND THAT ABUSES AND DISCRIMINATIONS WERE INHERENT IN THE
INTERNATIONAL SHIPPING TRADE WHEN IT WAS CONDUCTED ON THE BASIS OF
COOPERATION AMONG COMPETITORS.  IT WAS FURTHER FOUND THAT THE
ALTERNATIVE TO COOPERATION WAS CUTTHROAT COMPETITION LEADING TO
MONOPOLY AND, MORE PARTICULARLY, WORKING TO THE SERIOUS DETRIMENT OF
AMERICAN CARRIERS AND SHIPPERS AND TO THE ADVANTAGE OF THEIR FOREIGN
COMPETITORS.  THE CONCLUSION WAS THAT THE SYSTEM OF COOPERATION MUST BE
DOMESTICATED AND EXPOSED TO, AND POLICED BY, A CONTINUING PROCESS OF
REGULATION.   ONLY THE FLAGRANT ABUSES WERE FLATLY PROHIBITED.  THE
PERVADING PURPOSE OF THE SHIPPING ACT IS TO BE FOUND IN A STATEMENT
MADE IN THE HOUSE DEBATE BY REPRESENTATIVE BURKE, A MAJORITY MEMBER OF
THE ALEXANDER COMMITTEE DURING BOTH THE INVESTIGATION AND THE
CONSIDERATION OF THE VARIOUS BILLS: 

"YOUR COMMITTEE AT THE CONCLUSION OF SUCH HEARINGS AND AFTER
CONSIDERATION AND DUE DELIBERATION MADE ITS REPORT TO CONGRESS UPON THE
SUBJECT WITH MANY VALUABLE RECOMMENDATIONS.  AMONG THE RECOMMENDATIONS
MADE IN SUCH REPORT TO CONGRESS WERE THAT LAWS SHOULD BE PASSED
PROHIBITING THE GROSSEST AND MOST VICIOUS OF SUCH UNFAIR PRACTICES  ...
. 

     *         *         *         *         * 

"IT WAS FOUND BY YOUR COMMITTEE THAT MANY OF THE UNFAIR PRACTICES HAD
BECOME SO FIRMLY ESTABLISHED AND CONTAINED IN MANY INSTANCES ELEMENTS
OF USEFULNESS THAT, WITH THE EXCEPTION OF SOME OF THE MORE PROMINENT
ILL PRACTICES, IT WAS CONSIDERED THAT A SYSTEM OF REGULATION AND
CONTROL OF WATER TRANSPORTATION WOULD BE FOR THE BEST INTEREST OF BOTH
THE PUBLIC AND THOSE INTERESTED IN WATER TRANSPORTATION."  53 CONG.
REC. 8095. 

IT IS IMPORTANT TO KEEP IN MIND THE RELATION OF THIS SCHEME OF
REGULATION TO THE ANTITRUST LAWS.  PRIOR TO THE ENACTMENT OF THE
SHIPPING ACT, THE OCEAN TRANSPORTATION INDUSTRY WAS, OF COURSE, SUBJECT
TO THE ANTITRUST LAWS, AND, INDEED, AS HAS BEEN NOTED, PROCEEDINGS
UNDER THE SHERMAN ACT HAD BEEN BROUGHT AGAINST SEVERAL CONFERENCES BY
THE GOVERNMENT.  CONGRESS MIGHT HAVE PROVIDED THAT, IN ADDITION TO
BEING SUBJECTED TO THE GENERAL SURVEILLANCE INVOLVED IN A COMPREHENSIVE
PATTERN OF REGULATION, THE STEAMSHIP OWNERS MUST CONTINUE TO CONFORM TO
THE AFFIRMATIVE POLICY IN FAVOR OF A HIGH LEVEL OF COMPETITION THAT
UNDERLIES THE ANTITRUST LAWS.  SUCH WAS THE CONDITION IN WHICH
LEGISLATION HAD PLACED THE RAILROADS.  THEY WERE SUBJECT TO BOTH
INTERSTATE COMMERCE COMMISSION REGULATION AND THE OUTLAWRY OF THE
SHERMAN ACT.  UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S.
290; UNITED STATES V. JOINT TRAFFIC ASSN., 171 U.S. 505.  NOT UNTIL
1920 WERE AGREEMENTS AMONG RAIL CARRIERS EXCEPTED FROM THE ANTITRUST
LAWS.  SEC. 407, TRANSPORTATION ACT OF 1920, 41 STAT. 456, 480,
AMENDING SEC. 5 OF THE INTERSTATE COMMERCE ACT, 24 STAT. 379, 380. 
WITH RESPECT TO OCEAN TRANSPORTATION, HOWEVER, CONGRESS FROM THE
BEGINNING CHOSE TO EXEMPT AGREEMENTS AMONG CARRIERS AND BETWEEN
CARRIERS AND SHIPPERS FROM THE ANTITRUST LAWS.  THEY THUS REJECTED
COURT-DETERMINED COMPETITION AND PREFERRED TO RELY UPON REGULATION
UNDER AN EXPERT ADMINISTRATIVE AGENCY. 

IT IS IN THE LIGHT OF THIS BACKGROUND THAT WE MUST CONSIDER SEC. 14
THIRD OF THE SHIPPING ACT OF 1916, WHICH BOTH THE COURT OF APPEALS AND
THIS COURT HAVE CONSTRUED AS PROHIBITING THE DUAL-RATE CONTRACT
SYSTEM.  THE SECTION IMPOSES A HEAVY FINE FOR CONDUCT IT MAKES CRIMINAL
AND SO SHOULD BE STRICTLY CONSTRUED.  SEE YATES V. UNITED STATES, 354
U.S. 298, 304-305.  IT DESERVES NARROW CONSTRUCTION ALSO ON THE GROUND
THAT IT IS AN UNDOUBTED EXCEPTION TO A COMPREHENSIVE AND COMPLEX SCHEME
OF REGULATION BY THE BOARD.  FOR IT MUST BE CONSTRUED NOT AS THOUGH IT
WERE AN ISOLATED PIECE OF WRITING BUT AS PART OF A RETICULATED SCHEME
OF GOVERNMENT FOR THE SHIPPING INDUSTRY.  NO FORM OF CONDUCT SHOULD BE
BROUGHT WITHIN ITS TERMS THAT WAS NOT DESIGNED TO BE INCLUDED.  AS THE
FOREGOING SURVEY OF THE LEGISLATIVE HISTORY DEMONSTRATES, THERE IS NO
EVIDENCE OF SUCH PURPOSE WITH RESPECT TO THE DUAL-RATE CONTRACT
SYSTEM.  THE EVIDENCE IN FACT POINTS TO THE INTENTION OF ITS
EXCLUSION. 

UNDER NO FAIRLY APPLICABLE MEANING OF THE WORD "RETALIATION" CAN THE
CONCLUSION OF THE COURT OF APPEALS, THAT THE INITIATION AND MAINTENANCE
OF A DUAL-RATE CONTRACT SYSTEM IS RETALIATION, BE SUSTAINED.  IT IS
CLEAR FROM THE CONGRESSIONAL HISTORY THAT THE FRAMERS OF THE
LEGISLATION WERE CONCERNED WITH CERTAIN FORMS OF CONDUCT, NOTABLY
REFUSAL OF AVAILABLE ACCOMMODATIONS, DIRECTED AGAINST SHIPPERS BECAUSE
THEY HAD PREVIOUSLY DONE SUCH THINGS AS SHIPPING BY AN INDEPENDENT LINE
OR PUBLICLY FILING COMPLAINTS AGAINST CARRIERS.  THE VERY CONCEPT OF
RETALIATION IS THAT THE RETALIATING PARTY TAKES ACTION AGAINST THE
PARTY RETALIATED AGAINST AFTER, AND BECAUSE OF, SOME ACTION OF THE
LATTER.  IN THE DUAL-RATE CONTRACT SYSTEM, THERE IS NOTHING OF THIS
"GETTING EVEN"; THE PARTIES SIMPLY ENTER INTO AN AGREEMENT THAT IS
DESIGNED TO GUIDE THEIR FUTURE CONDUCT BUT IN NO WAY DEPENDS UPON OR
ARISES OUT OF PAST CONDUCT.  IT DOES VIOLENCE TO THE ENGLISH LANGUAGE -
AND CERTAINLY TO THE DUTY OF READING CONGRESSIONAL LANGUAGE IN CONTEXT
TO CHARACTERIZE SUCH A CONTRACTUAL ARRANGEMENT AS "RETALIATION."  AS
CONDUCT RELATING TO THE COMPETITIVE STRUGGLE BETWEEN CARRIERS COMBINED
IN A CONFERENCE AND THOSE WHO PERFER TO STAY OUT - YES; AS AN ACT OF
REPRISAL - NO. 

BUT IF THE DUAL-RATE CONTRACT SYSTEM IS NOT "RETALIATION," THEN IT
DOES NOT VIOLATE SEC. 14 THIRD, FOR IT SEEMS EVIDENT THAT THAT SECTION
WAS DIRECTED ONLY AT RETALIATION.  IT IS, INDEED, RATHER INARTFULLY
DRAWN, BUT UNDER THE CIRCUMSTANCES, AND PARTICULARLY IN LIGHT OF THE
LEGISLATIVE BACKGROUND, ITS AMBIGUITIES SHOULD BE RESOLVED IN FAVOR OF
THE NARROWER CONSTRUCTION.  THE RECOMMENDATION OF THE ALEXANDER
COMMITTEE, SUPRA, A BODY ON WHICH CONGRESS PLACED AN EXTRAORDINARILY
HIGH DEGREE OF RELIANCE WITH RESPECT TO THE REGULATORY ASPECTS OF THE
SHIPPING BILL, CONTEMPLATED NOTHING BUT "RETALIATION."  WHEN, FOUR
MONTHS LATER, THE RECOMMENDATION HAD BEEN PUT INTO THE LANGUAGE OF
PROPOSED LEGISLATION, IT TOOK SUBSTANTIALLY THE FORM IT TAKES IN THE
STATUTE AS ENACTED.   NO DOUBT, THE INTENTION TO LIMIT THE APPLICATION
OF THE PROVISION TO "RETALIATION" IS NOT SO CLEAR IN THE STATUTORY
LANGUAGE AS IT WAS IN THE RECOMMENDATION; HOWEVER, SINCE THERE IS NO
EVIDENCE OF PURPOSEFULNESS IN THIS CHANGE, AND NO APPARENT REASON FOR
IT, THE ALTERATION IN LANGUAGE SHOULD NOT BE REGARDED AS HAVING
EFFECTED A DECISIVE CHANGE IN THE SUBSTANCE OF THE PROVISION. 
ATTACHING SUCH DRASTIC SIGNIFICANCE TO THIS CHANGE IN WORDING HAS NO
SUPPORTING REASON AND IS CONTRADICTED BY THE UNDERLYING PHILOSOPHY OF
THE LEGISLATION.  THIS CONCLUSION IS EMPHASIZED BY THE FACT THAT AFTER
THE CHANGE THE COMMITTEE REPORTS IN BOTH HOUSES OF CONGRESS QUOTED THE
LANGUAGE OF THE RECOMMENDATION IN SUPPORT OF THE PROPOSED LEGISLATION
WITHOUT QUALIFICATION.  AND IN THE HOUSE DEBATE, WHEN REPRESENTATIVE
ALEXANDER WAS BRIEFLY SUMMARIZING THE PROVISIONS OF THE BILL, HE SAID,
IN DESCRIBING THE PROVISION THAT BECAME SEC. 14 THIRD, NOTHING MORE
THAN THAT IT "FORBIDS RETALIATION AGAINST SHIPPERS WHO PATRONIZE OTHER
CARRIERS, OR COMPLAIN OF UNFAIR TREATMENT BY REFUSING, OR THREATENING
TO REFUSE, SPACE ACCOMMODATIONS WHEN AVAILABLE, OR BY OTHER UNFAIR
PRACTICES ...  ."  53 CONG. REC. 8080.  SURELY, WHEN THERE IS NOTHING
IN THE LEGISLATIVE HISTORY TO SUGGEST THAT CONGRESS WISHED TO PROHIBIT
THE DUAL-RATE CONTRACT SYSTEM OF WHICH THEY WERE FULLY AWARE, AND
EVERYTHING TO SUGGEST THAT SEC. 14 THIRD WAS DESIGNED TO RESPOND SOLELY
TO AN ENTIRELY DIFFERENT PROBLEM, THAT SECTION CANNOT BE STRETCHED TO
EMBRACE THAT PRACTICE AND THEREBY TO UNDERCUT THE RATIONALE OF THE
LEGISLATION. 

THE COURT'S CONSTRUCTION MAKES OF THE LATTER PORTIONS OF SEC. 14
THIRD A GENERAL CATCHALL.  THE RELEVANT WORDS, AS ABSTRACTED FROM THE
ENTIRE PROVISION, WOULD BE THESE:  "NO COMMON CARRIER BY WATER SHALL,
DIRECTLY OR INDIRECTLY  ...  RESORT TO  ...  DISCRIMINATING OR UNFAIR
METHODS  ...  FOR ANY  ...  REASON."  SUCH A PROVISION - EVEN IF IT BE
LIMITED TO CONDUCT DESIGNED TO "STIFLE" COMPETITION - WOULD NOT ONLY
MAKE THE REMAINDER OF SEC. 14 REDUNDANT BUT WOULD BE INCONSISTENT WITH
THE WHOLE PHILOSOPHY, NOT TO SAY THE LANGUAGE, OF MUCH OF THE
REGULATORY PORTION OF THE SHIPPING ACT.  THERE IS NOTHING IN THE WORDS
OF THE STATUTE OR IN ITS CONGRESSIONAL BACKGROUND TO INDICATE THAT
CONGRESS INTENDED TO BURY SUCH A BROAD PROHIBITION IN THE THIRD PORTION
OF A FOUR-PART PENAL SECTION.  MOREOVER, AS NOTED ABOVE, THE MOST
PROBABLE EXPLANATION FOR THE GENERALITY OF THE LANGUAGE IN SEC. 14
THIRD IS THAT CONGRESS SOUGHT TO COVER FORMS OF RETALIATION THAT
SHIPPERS HAD BEEN AFRAID TO BRING TO THE LEGISLATORS' ATTENTION. 

NOR IS THERE ANY MERIT TO THE SUGGESTION THAT IF CONGRESS MADE
"DEFERRED REBATES" UNLAWFUL, THE PRACTICE OF DUAL-RATE CONTRACTS -
ALTHOUGH NOT SPECIFICALLY PROHIBITED - SHOULD ALSO BE UNLAWFUL BECAUSE
IT HAS "THE SAME OBJECTIONABLE PURPOSE AND EFFECT."  THIS MODE OF
APPROACH IS A JUDICIAL UTILIZATION OF THE SALESMANSHIP THAT OFFERS
SOMETHING AS "JUST AS GOOD."  THIS COURT CERTAINLY HAS NOT THE POWER TO
SAY THAT CONDUCT IS UNLAWFUL SIMPLY BECAUSE IT IS "JUST AS BAD" AS SOME
CONDUCT THAT CONGRESS HAS SPECIFICALLY PROHIBITED.  THE PRINCIPAL BASIS
THAT THE ALEXANDER COMMITTEE SET FORTH FOR ITS CONCLUSION THAT DEFERRED
REBATES WERE OBJECTIONABLE WAS PRECISELY THAT THE REBATES WERE
DEFERRED.  THE COMMITTEE, IN OUTLINING THE OBJECTIONS THAT HAD BEEN
MADE TO STEAMSHIP AGREEMENTS, NOTED THAT "BY DEFERRING THE PAYMENT OF
THE REBATE UNTIL THREE OR SIX MONTHS FOLLOWING THE PERIOD TO WHICH THE
REBATE APPLIES SHIP OWNERS EFFECTIVELY TIE THE MERCHANTS TO A GROUP OF
LINES FOR SUCCESSIVE PERIODS."  REPORT, SUPRA, AT 307.  THE COMMITTEE
RECITED THE CONTENTION THAT "THE ORDINARY CONTRACT SYSTEM DOES NOT
PLACE THE SHIPPER IN THE POSITION OF CONTINUAL DEPENDENCE THAT RESULTS
FROM THE DEFERRED REBATE SYSTEM" (IBID.); IT IS NOT UNLIKELY THAT THEY
HAD IN MIND THE DUAL-RATE CONTRACT SYSTEM.  THIS COURT IN SWAYNE &
HOYT, LTD., V. UNITED STATES, 300 U.S. 297, ADOPTED THAT POINT OF VIEW
WHEN IT SAID (300 U.S., AT 307, N. 3): 

"THE COMMITTEE RECOGNIZED THAT THE EXCLUSIVE CONTRACT SYSTEM DOES NOT
NECESSARILY TIE UP THE SHIPPER AS COMPLETELY AS 'DEFERRED REBATES,'
SINCE IT DOES NOT PLACE HIM IN 'CONTINUAL DEPENDENCE' ON THE CARRIER BY
FORCING HIS EXCLUSIVE PATRONAGE FOR ONE CONTRACT PERIOD UNDER THREATS
OF FORFEIT OF DIFFERENTIALS ACCUMULATED DURING A PREVIOUS CONTRACT
PERIOD." 

TWICE THIS COURT HAS REJECTED THE CONTENTION THAT IT NOW ACCEPTS. 
TWICE THIS COURT HAS HELD THAT THE SHIPPING ACT OF 1916 DID NOT RENDER
ILLEGAL PER SE A DUAL-RATE CONTRACT SYSTEM ENFORCED BY A COMBINATION OF
STEAMSHIP CARRIERS ESSENTIALLY LIKE THE ONE NOW BEFORE THE COURT,
WHEREBY LOWER RATES ARE TIED TO AN AGREEMENT FOR EXCLUSIVE CARRIAGE. 
SUCH WERE THE DECISIONS, UPON FULL CONSIDERATION, IN UNITED STATES
NAVIGATION CO. V. CUNARD S.S. CO., 284 U.S. 474, IN 1932 AND AGAIN IN
FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570, IN 1952 BY A WHOLLY
DIFFERENTLY CONSTITUTED COURT.  IN BOTH THESE CASES THE CLAIM WAS THAT
SUCH A DUAL-RATE SYSTEM CONSTITUTED A COMBINATION IN VIOLATION OF THE
SHERMAN ACT, FOR WHICH RELIEF BY WAY OF AN INJUNCTION COULD BE HAD BY A
COMPETING CARRIER OUTSIDE THE CONFERENCE, AS IN THE CUNARD CASE, AND BY
THE UNITED STATES, AS IN THE FAR EAST CONFERENCE CASE, UNDER SEC. 4 OF
THE SHERMAN ACT.  THE IMMEDIATE ISSUE IN BOTH CASES WAS, OF COURSE, THE
APPLICABILITY OF THE PRINCIPLE OF "PRIMARY JURISDICTION" - THAT IS,
WHETHER THE LEGALITY OF A DUAL-RATE SYSTEM COULD BE ADJUDICATED BY A
UNITED STATES DISTRICT COURT WITHOUT A DETERMINATION BY THE FEDERAL
MARITIME BOARD AS TO WHETHER "THE MATTERS COMPLAINED OF" (UNITED STATES
NAVIGATION CO. V. CUNARD S.S. CO., SUPRA, AT 478) AND WHETHER THE DUAL
RATE SYSTEM "ON THE MERITS" (FAR EAST CONFERENCE V. UNITED STATES,
SUPRA, AT 573) OFFEND THE SHIPPING ACT OF 1916.  THE DOCTRINE OF
"PRIMARY JURISDICTION" WAS RECOGNIZED BY MR. CHIEF JUSTICE TAFT AS AN
ACHIEVEMENT WHEREBY ITS AUTHOR, MR. CHIEF JUSTICE WHITE, "HAD MORE TO
DO WITH PLACING THIS VITAL PART OF OUR PRACTICAL GOVERNMENT ON A USEFUL
BASIS THAN ANY OTHER JUDGE."  (257 U.S. XXV.)  THE COURT'S OPINION
MAKES OF IT AN EMPTY RITUAL. 

BY VIRTUE OF THESE TWO DECISIONS, AN INDEPENDENT SHIPOWNER WHO
CLAIMED TO BE HURT BY THE OPERATION OF A DUAL-RATE CONTRACT SYSTEM,
EMPLOYED AS A COMPETITIVE MEASURE AGAINST HIM BY A SHIPPING CONFERENCE,
COULD NOT BRING HIS COMPLAINT TO COURT AS MIGHT A MANUFACTURER HURT BY
AN ANALOGOUS COMBINATION COMPETITOR.  SUCH A SHIPOWNER WOULD HAVE TO
APPEAL TO THE FEDERAL MARITIME BOARD, AS DID ISBRANDTSEN.  THE ENSUING
BOARD PROCEEDINGS WOULD PROBABLY BE SIMILAR TO THOSE IN THIS CASE.  ON
ISBRANDTSEN'S PROTESTS, FILED JANUARY 12, 1953, AND AMENDED ON JANUARY
19, HEARINGS WERE CONDUCTED BEFORE A BOARD EXAMINER FROM OCTOBER 5 TO
DECEMBER 23, 1953, IN WHICH WAS COMPLIED A RECORD OF OVER 4,500 PAGES
OF TESTIMONY AND OVER 150 EXHIBITS.  THE EXAMINER RENDERED HIS
RECOMMENDED DECISION ON SEPTEMBER 13, 1954, BUT ON OCTOBER 6 THE BOARD
REMANDED THE RECORD FOR SUPPLEMENTAL FINDINGS OF FACT; THESE
SUPPLEMENTAL FINDINGS WERE SERVED ON JANUARY 17, 1955.  ELEVEN MONTHS
LATER THE BOARD FILED ITS DETAILED, COMPREHENSIVE REPORT APPROVING THE
CONFERENCE'S DUAL-RATE SYSTEM (AS AMENDED IN ACCORDANCE WITH THE
BOARD'S REPORT) AS NOT UNJUSTLY DISCRIMINATORY OR UNFAIR, NOR LIKELY TO
OPERATE TO THE DETRIMENT OF THE COMMERCE OF THE UNITED STATES, NOR IN
VIOLATION OF THE SHIPPING ACT.  BUT ALL THIS ELABORATE PROCESS AND
DETERMINATION ARE LEGALLY MEANINGLESS.  THE AGENCY IS MADE TO SERVE AS
A CIRCUMLOCUTION OFFICE.  THE SOLE FUNCTION OF THIS CARNIVAL OF
PROCEDURAL EMPTINESS IS THAT OF A FORMAL PRELIMINARY TO A SUIT IN A
FEDERAL COURT.  FOR SUCH A SUIT, THE COURT NOW HOLDS, IS TO PROCEED IN
COMPLETE DISREGARD OF ALL THE HEARING, WEIGHING AND INTERPRETING OF
EVIDENCE BEFORE THE BOARD.  THE COURT IS TO MAKE A RULING OF LAW WITH
ENTIRE INDIFFERENCE TO ALL THE FINDINGS OF THE EXPERT BODY SET UP TO
MAKE APPROPRIATE FINDINGS ON THE BASIS OF THE LAW'S POLICY.  SURELY IT
IS A FORM OF PLAYFULNESS TO MAKE RESORT TO THE BOARD A PREREQUISITE
WHEN THE JUDICIAL DETERMINATION OF LAW COULD HAVE BEEN MADE PRECISELY
AS THOUGH THERE HAD BEEN NO PROCEEDING BEFORE THE BOARD.  THIS IS TO
MAKE A MOCKERY OF THE DOCTRINE OF PRIMARY JURISDICTION AND TO INTERPRET
THE DECISIONS IN THE CUNARD AND FAR EAST CONFERENCE CASES AS UTTERLY
WASTEFUL FUTILITIES. 

UNTIL TODAY THE DOCTRINE OF "PRIMARY JURISDICTION" WAS NOT AN EMPTY
RITUAL.  ITS OBSERVANCE IN SCORES OF CASES WAS NOT A WASTEFUL
FUTILITY.  IN DENYING TO THE DISTRICT COURTS JURISDICTION IN SITUATIONS
LIKE THOSE IN THE CUNARD AND FAR EAST CONFERENCE CASES THE DOCTRINE OF
PRIMARY JURISDICTION WAS NOT DEVISED FOR THE PURPOSELESS DELAY OF
GIVING THE SAME JURISDICTION TO COURTS OF APPEALS, ON CONDITION THAT
THEY USE THE ADMINISTRATIVE AGENCY AS A STERILE CONDUIT TO THEM.  SUCH
A VIEW WOULD DENIGRATE AND DISTORT THE SIGNIFICANCE OF ONE OF THE MOST
IMPORTANT MOVEMENTS IN OUR LAW.   LEGAL SCHOLARS HAVE RIGHTLY COMPARED
IT TO THE RISE OF EQUITY, A VIEW ENDORSED BY THIS COURT THROUGH MR.
CHIEF JUSTICE STONE, HIMSELF A SCHOLAR.  SEE UNITED STATES V. MORGAN,
307 U.S. 183, 191.   THE UTILIZATION OF THESE ADMINISTRATIVE AGENCIES
IS A LEGISLATIVE REALIZATION, JUDICIALLY RESPECTED, THAT THE REGULATORY
NEEDS OF MODERN SOCIETY DEMAND LAW-ENFORCING TRIBUNALS OTHER THAN THE
CONVENTIONAL COURTS.  THE DOCTRINE OF PRIMARY JURISDICTION, BASED AS IT
IS ON THE DISCHARGE OF FUNCTIONS FOR WHICH COURTS NORMALLY HAVE NEITHER
TRAINING AND EXPERIENCE NOR PROCEDURAL FREEDOMS, IS AN ESSENTIAL ASPECT
OF THIS MODERN DISTRIBUTION OF THE LAW-ENFORCING ROLES AS BETWEEN
ADMINISTRATIVE AGENCIES AND COURTS.  IT GIVES THESE AGENCIES THE
NECESSARY SCOPE FOR EXPLORING A WIDE REALM OF FACTS, NOT TO BE CONFINED
WITHIN THE EXCLUSIONARY RULES OF EVIDENCE CONTROLLING PROCEEDINGS IN
COURTS, TO WEIGH SUCH FACTS WITH AN EXPERT'S UNDERSTANDING AND TO
CHOOSE BETWEEN ALLOWABLE INFERENCES WHERE WISE CHOICE SO OFTEN DEPENDS
ON INFORMED JUDGMENT.  (FN7)  THESE AGENCIES DO NOT SUPPLANT COURTS. 
THEY ARE SUBJECT TO WHAT MAY BROADLY BE CALLED THE JUDICIAL RULE OF
LAW.  APPEAL LIES TO COURTS TO TEST WHETHER AN AGENCY ACTED WITHIN ITS
STATUTORY BOUNDS, ON THE BASIS OF RATIONAL EVIDENCE SUPPORTING A
REASONED CONCLUSION, AND ULTIMATELY SATISFIES THE CONSTITUTIONAL
REQUIREMENT OF DUE PROCESS.  WITHIN THESE LIMITS, A LARGE RANGE OF
DISCRETION IS ENTRUSTED TO ADMINISTRATIVE AGENCIES TO MAKE EFFECTIVE
THE SOCIAL AND ECONOMIC POLICIES ADOPTED BY CONGRESS IN THE MYRIAD
CONCRETE SITUATIONS CALLING FOR THEIR APPLICATION.  WHETHER RATES ARE
REASONABLE, WHETHER DISCRIMINATIONS ARE FAIR, WHETHER PARTICULAR
COMBINED ECONOMIC ARRANGEMENTS ARE JUSTIFIED, WHETHER PRACTICES THAT
WOULD, FOR INDUSTRY GENERALLY, FALL AFOUL THE SHERMAN ACT ARE
PERMISSIBLE UNDER A LEGISLATIVE REGIME FOR A PARTICULAR INDUSTRY THAT
TO THAT EXTENT SUPERSEDES THE ANTITRUST LAWS - THESE AND LIKE QUESTIONS
COME WITHIN THE OPERATION OF THE DOCTRINE OF PRIMARY JURISDICTION, AND
IT LIMITS THE POWER OF COURTS TO PASS ON THEIR MERITS. 

CONTRARIWISE, WHERE A DECISION OF A CASE DEPENDS ON DETERMINATION OF
A QUESTION OF LAW AS SUCH, EITHER BECAUSE OF EXPLICIT STATUTORY
OUTLAWRY OF SOME SPECIFIC CONDUCT OR BY NECESSARY IMPLICATION OF
JUDICIAL POWER BECAUSE NOT INVOLVING THE EXERCISE OF ADMINISTRATIVE
DISCRETION OR THE NEED OF UNIFORM APPLICATION OF SPECIALIZED
COMPETENCE, THE DOCTRINE OF PRIMARY JURISDICTION HAS NO FUNCTION,
BECAUSE THERE IS NO OCCASION TO REFER A MATTER TO THE ADMINISTRATIVE
AGENCY.  GREAT NORTHERN R. CO. V. MERCHANTS ELEVATOR CO., 259 U.S. 285
(REAFFIRMED IN UNITED STATES V. WESTERN PACIFIC R. CO., 352 U.S. 59,
69); TEXAS & PACIFIC R. CO. V. GULF, C.&S.F.R. CO., 270 U.S. 266; CIVIL
AERONAUTICS BOARD V. MODERN AIR TRANSPORT, INC., 179 F.2D 622, 624-625;
SEE DAVIS, ADMINISTRATIVE LAW, 666-668.  THE COURSE OF DECISIONS WAS
ACCURATELY SUMMARIZED IN MONTANA-DAKOTA UTILITIES CO. V. NORTHWESTERN
PUBLIC SERVICE CO., 341 U.S. 246, 254:  "  ...  WE KNOW OF NO CASE
WHERE THE COURT HAS ORDERED REFERENCE OF AN ISSUE WHICH THE
ADMINISTRATIVE BODY WOULD NOT ITSELF HAVE JURISDICTION TO DETERMINE IN
A PROCEEDING FOR THAT PURPOSE."  IT WOULD BE A TRAVESTY OF LAW AND AN
ABUSE OF THE JUDICIAL PROCESS TO FORCE LITIGANTS TO UNDERGO AN
EXPENSIVE AND MERELY DELAYING ADMINISTRATIVE PROCEEDING WHEN THE CASE
MUST EVENTUALLY BE DECIDED ON A CONTROLLING LEGAL ISSUE WHOLLY
UNRELATED TO DETERMINATIONS FOR THE ASCERTAINMENT OF WHICH THE
PROCEEDING WAS SENT TO THE AGENCY.  SUCH, HOWEVER, IS THE RESULT IN
THIS CASE. 

THE CUNARD AND FAR EAST CONFERENCE DECISIONS MEAN NOTHING IF THEY DO
NOT MEAN THAT THE DENIAL OF JURISDICTION TO THE DISTRICT COURTS TO
ENTERTAIN THE SUITS IN THOSE CASES AND THEIR REFERENCE TO THE FEDERAL
MARITIME BOARD, AND THE HOLDING THAT THE COMPLAINTS AGAINST THE DUAL
RATE SYSTEM IN THOSE TWO CASES MUST BE PASSED ON BY THE BOARD,
CONSTITUTED THE PLAINEST POSSIBLE RECOGNITION THAT IT WAS FOR THE BOARD
TO APPROVE OR DISAPPROVE THE DUAL-RATE CONTRACT SYSTEM COMPLAINED OF,
AND, THEREFORE, THAT THE PRACTICE WAS NOT ILLEGAL AS A MATTER OF LAW -
THAT IS, BY VIRTUE OF A STATUTORY CONDEMNATION.  IN BOTH CASES THE
COURT'S ATTENTION WAS DIRECTED TO THE CLAIM OF PER SE ILLEGALITY.  IN
BOTH CASES THE PLAINTIFFS URGED THAT, SINCE THE DUAL-RATE CONTRACT
SYSTEM VIOLATED SEC. 14, THE BOARD WAS WITHOUT POWER TO APPROVE IT.
BRIEF FOR PETITIONER, PP. 47-56, UNITED STATES NAVIGATION CO. V. CUNARD
S.S. CO., 284 U.S. 474; BRIEF FOR UNITED STATES, PP. 22-23
(INCORPORATING BY REFERENCE BRIEF FOR UNITED STATES, PP. 21-45, A/S J.
LUDWIG MOWINCKELS REDERI V. ISBRANDTSEN CO., 342 U.S. 950), FAR EAST
CONFERENCE V. UNITED STATES, 342 U.S. 570.  SEE ALSO UNITED STATES
NAVIGATION CO. V. CUNARD S.S. CO., 284 U.S. 474, 478 (ARGUMENT OF
PETITIONER'S COUNSEL).  AND IN FAR EAST CONFERENCE, THE CLAIM THAT NOW
PREVAILS WAS A MAIN GROUND OF DISSENT.  SEE 342 U.S., AT 578-579. 
(FN8)  WHEN AN ISSUE IS SQUARELY AND FULLY PRESENTED TO THE COURT AND
ITS DISPOSITION IS ESSENTIAL TO THE RESULT REACHED IN A CASE, THE ISSUE
IS DECIDED, WHETHER THE COURT SAYS MUCH OR LITTLE, WHETHER THE OPINION
IS DIDACTIC OR ELLIPTICAL.  OTHERWISE VERY FEW OPINIONS IN WHICH MR.
JUSTICE HOLMES SPOKE FOR THE COURT, IN MOST INSTANCES TERSELY AND OFTEN
CRYPTICALLY, WOULD HAVE FORMULATED DECISIONS. 

NOR CAN THESE CASES BE DISTINGUISHED ON THEIR FACTS.  THE COMPLAINTS
IN BOTH CASES ALLEGED THAT THE CONFERENCES HAD INITIATED THE DUAL-RATE
CONTRACT SYSTEM IN ORDER TO ELIMINATE COMPETITION.  SEE UNITED STATES
NAVIGATION CO. V. CUNARD S.S. CO., 284 U.S. 474, 479-480; TRANSCRIPT OF
RECORD, P. 6, FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570.  AND
THE DUAL-RATE AGREEMENT INVOLVED IN FAR EAST CONFERENCE WAS, IF
ANYTHING, MORE COERCIVE AND MORE CLOSELY ANALOGOUS TO A SYSTEM OF
DEFERRED REBATES THAN IS THE ONE INVOLVED IN THE CASES BEFORE THE
COURT.  IT PROVIDED (SEC. 4) THAT IF A SHIPPER VIOLATED THE AGREEMENT,
THE AGREEMENT WAS VOID, AND THE SHIPPER BECAME LIABLE TO PAY
"ADDITIONAL FREIGHT ON ALL COMMODITIES THERETOFORE SHIPPED WITH SUCH
CARRIERS FOR A PERIOD NOT EXCEEDING TWELVE MONTHS IMMEDIATELY PRECEDING
THE DATE OF SUCH SHIPMENT, AT THE NON-CONTRACT RATE OR RATES  ...  ." 
TRANSCRIPT OF RECORD, P. 18.  SUCH AN ACCUMULATION OF POTENTIAL
LIABILITY WAS MUCH MORE LIKELY TO RESULT IN "CONTINUAL DEPENDENCE" ON
THE CONFERENCE THAN IS THE LIQUIDATED DAMAGES PROVISION IN THE
AGREEMENT BEFORE US.  THE LATTER PROVIDES FOR DAMAGES OF 50 PERCENT OF
THE FREIGHT THAT WOULD HAVE BEEN PAID UNDER THE AGREEMENT (I.E., AT THE
LOWER, OR CONTRACT RATE) FOR THE SHIPMENT MADE IN VIOLATION OF THE
AGREEMENT; THE AGREEMENT DOES NOT BECOME VOID ON ACCOUNT OF A SINGLE
VIOLATION.  THERE IS NO BASIS FOR CONCLUDING THAT THESE DAMAGES ARE
UNREASONABLY HIGH OR THAT THEY DO NOT BEAR A RATIONAL RELATION TO THE
ACTUAL LOSS A CARRIER SUSTAINS WHEN HE IS DENIED A SHIPMENT TO WHICH
HIS CONTRACT ENTITLES HIM. 

SINCE THIS COURT HAS TWICE REJECTED THE THEORY THAT DUAL-RATE
CONTRACT SYSTEMS VIOLATE SEC. 14 OF THE SHIPPING ACT, AND SINCE THERE
IS NOTHING IN THAT STATUTE OR ITS LEGISLATIVE HISTORY TO SUGGEST THAT
THOSE CASES WERE WRONGLY DECIDED IN THE LIGHT OF NEW KNOWLEDGE NOT
BEFORE THE COURT WHEN THEY WERE DECIDED, THE QUESTION IN THIS CASE IS,
AS IT WAS IN THE EARLIER TWO CASES, ONE LYING WITHIN THE BOARD'S
ADMINISTRATIVE DISCRETION.  AS I SEE NO REASON FOR OVERTURNING THE
DETAILED, WELL-REASONED REPORT OF THE BOARD IN THESE PROCEEDINGS, I AM
OF THE OPINION THAT THE DECISION OF THE COURT OF APPEALS SHOULD BE
REVERSED. 

FN1  39 STAT. 728, 733, AS AMENDED, 46 U.S.C. SEC. 812. 

FN2  SEE, E.G., AGREEMENTS SET FORTH AT PP. 262-263 OF HEARINGS
BEFORE THE HOUSE COMMITTEE ON THE MERCHANT MARINE AND FISHERIES IN THE
INVESTIGATION OF SHIPPING COMBINATIONS, 62D CONG. 

FN3  RESPONDENT ISBRANDTSEN, IN ITS PETITION TO THE COURT OF APPEALS
TO REVIEW THE ORDER OF THE FEDERAL MARITIME BOARD, STATED (AT PAR. 10B)
THAT "OF THE ABOUT ONE HUNDRED SEVENTEEN STEAMSHIP FREIGHT CONFERENCES
ORGANIZED PURSUANT TO SECTION 15 OF THE SHIPPING ACT, AND SUBJECT TO
THE JURISDICTION OF THE BOARD, ABOUT SIXTY-TWO CONFERENCES PRESENTLY
EMPLOY THAT SYSTEM  ...  ."  SEE ALSO MARX, INTERNATIONAL SHIPPING
CARTELS, 207. 

FN4  4 F.M.B. 706, 737, 739-740, 1956 AM. MAR. CAS. 414, 451, 454. 

FN5  ON APPEAL, THE VERY LIMITED DECREES OBTAINED BY THE GOVERNMENT
AGAINST SOME MEMBERS OF TWO OF THE CONFERENCES WERE REVERSED, 239 U.S.
466, 242 U.S. 537, AND THE SUITS DIRECTED TO BE DISMISSED ON THE SCORE
OF MOOTNESS BECAUSE OF WORLD WAR I. 

FN6  IT IS WORTH NOTING THAT IN SECS. 14 FOURTH AND 15 THE STATUTE
SPEAKS IN TERMS OF "UNJUST" DISCRIMINATION, A STANDARD TO WHICH IT WAS
QUITE CLEARLY THE LEGISLATIVE PURPOSE FOR THE BOARD TO GIVE SUBSTANCE
AND MEANING.  CONGRESS HAD NO INTENTION OF CONDEMNING ALL OF THE
PRACTICES DESCRIBED BY THE VERY GENERAL LANGUAGE OF THE TWO PROVISIONS;
IT RELIED ON THE BOARD TO PREVENT ONLY THOSE THAT ARE UNWARRANTED BY
THE COMPETITIVE SITUATION IN WHICH THEY ARE FOUND.  BUT IN SEC. 14
THIRD NO SUCH QUALIFICATION WAS ADOPTED, FOR THE KIND OF
"DISCRIMINATING AND UNFAIR METHODS" TOWARD WHICH CONGRESS WAS DIRECTING
ITS ATTENTION HAD BEEN CLEARLY IDENTIFIED (I.E., BY RETALIATION AGAINST
SHIPPERS), AND THEY WERE TO BE FLATLY PROHIBITED IRRESPECTIVE OF THE
CIRCUMSTANCES IN WHICH THEY MIGHT BE PRACTICED. 

FN7  "THE DIFFERENCES IN ORIGIN AND FUNCTION BETWEEN COURT AND AGENCY
PRECLUDE WHOLESALE TRANSPLANTATION OF THE RULES OF PROCEDURE, TRIAL,
AND REVIEW WHICH HAVE EVOLVED FROM THE HISTORY AND EXPERIENCE OF
COURTS.  THUS, THIS COURT HAS RECOGNIZED THAT BODIES LIKE THE
INTERSTATE COMMERCE COMMISSION, INTO WHOSE MOULD CONGRESS HAS CAST MORE
RECENT ADMINISTRATIVE AGENCIES, 'SHOULD NOT BE TOO NARROWLY CONSTRAINED
BY TECHINCAL RULES AS TO THE ADMISSIBILITY OF PROOF,' INTERSTATE
COMMERCE COMMISSION V. BAIRD, 194 U.S. 25, 44, SHOULD BE FREE TO
FASHION THEIR OWN RULES OF PROCEDURE AND TO PURSUE METHODS OF INQUIRY
CAPABLE OF PERMITTING THEM TO DISCHARGE THEIR MULTITUDINOUS DUTIES. 
COMPARE NEW ENGLAND DIVISIONS CASE, 261 U.S. 184.  TO BE SURE, THE LAWS
UNDER WHICH THESE AGENCIES OPERATE PRESCRIBE THE FUNDAMENTALS OF FAIR
PLAY.  THEY REQUIRE THAT INTERESTED PARTIES BE AFFORDED AN OPPORTUNITY
FOR HEARING AND THAT JUDGMENT MUST EXPRESS A REASONED CONCLUSION.  BUT
TO ASSIMILATE THE RELATION OF THESE ADMINISTRATIVE BODIES AND THE
COURTS TO THE RELATIONSHIP BETWEEN LOWER AND UPPER COURTS IS TO
DISREGARD THE ORIGIN AND PURPOSES OF THE MOVEMENT FOR ADMINISTRATIVE
REGULATION AND AT THE SAME TIME TO DISREGARD THE TRADITIONAL SCOPE,
HOWEVER FAR-REACHING, OF THE JUDICIAL PROCESS.  UNLESS THESE VITAL
DIFFERENTIATIONS BETWEEN THE FUNCTIONS OF JUDICIAL AND ADMINISTRATIVE
TRIBUNALS ARE OBSERVED, COURTS WILL STRAY OUTSIDE THEIR PROVINCE AND
READ THE LAWS OF CONGRESS THROUGH THE DISTORTING LENSES OF INAPPLICABLE
LEGAL DOCTRINE."  FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE
BROADCASTING CO., 309 U.S. 134, 143-144. 

FN8  THE COURT IN THE CUNARD CASE DISCUSSED THE CLAIM IN THE
FOLLOWING TERMS: 

"IT IS SAID THAT THE AGREEMENT REFERRED TO IN THE BILL OF COMPLAINT
CANNOT LEGALLY BE APPROVED.  BUT THIS IS BY NO MEANS CLEAR  ...  .
WHATEVER MAY BE THE FORM OF THE AGREEMENT, AND WHETHER IT BE LAWFUL OR
UNLAWFUL UPON ITS FACE, CONGRESS UNDOUBTEDLY INTENDED THAT THE BOARD
SHOULD POSSESS THE AUTHORITY PRIMARILY TO HEAR AND ADJUDGE THE MATTER. 
FOR THE COURTS TO TAKE JURISDICTION IN ADVANCE OF SUCH HEARING AND
DETERMINATION WOULD BE TO USURP THAT AUTHORITY.  MOREOVER, HAVING
REGARD TO THE PECULIAR NATURE OF OCEAN TRAFFIC, IT IS NOT IMPOSSIBLE
THAT, ALTHOUGH AN AGREEMENT BE APPARENTLY BAD ON ITS FACE, IT PROPERLY
MIGHT, UPON A FULL CONSIDERATION OF ALL THE ATTENDING CIRCUMSTANCES, BE
APPROVED OR ALLOWED TO STAND WITH MODIFICATIONS."  284 U.S., AT 487. 

IT MAY BE NOTED THAT, AFTER THIS COURT ORDERED THE DISMISSAL OF THE
COMPLAINTS IN THE CUNARD AND FAR EAST CONFERENCE CASES, THE COMPLAINING
PARTY IN NEITHER CASE INITIATED PROCEEDINGS BEFORE THE BOARD CONCERNING
THE DUAL-RATE SYSTEM INVOLVED.  THE GOVERNMENT HAS, HOWEVER, INTERVENED
IN BOARD PROCEEDINGS INVOLVING THE SYSTEMS OF OTHER CONFERENCES, AS IT
DID IN THE INSTANT CASE. 

MR. JUSTICE HARLAN, DISSENTING. 

EXCEPT IN ONE RESPECT, I AGREE WITH THE DISSENTING OPINION OF MR.
JUSTICE FRANKFURTER.  I DO NOT THINK THAT THIS COURT'S DECISIONS IN
UNITED STATES NAVIGATION CO. V. CUNARD STEAMSHIP CO., 284 U.S. 474, AND
FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570, HAVE THE EFFECT
WHICH THAT OPINION ATTRIBUTES TO THEM.  DESPITE THE LOGIC OF THE
ARGUMENT FLOWING FROM THE DOCTRINE OF PRIMARY JURISDICTION, AND THE
LACK OF ANY SUBSTANTIAL FACTUAL DISTINCTION BETWEEN THE AGREEMENTS IN
THOSE CASES AND IN THIS ONE, I AM UNABLE TO READ CUNARD AND FAR EAST
CONFERENCE AS HAVING DETERMINED, WITHOUT ANY DISCUSSION, THE FAR
REACHING QUESTION WHICH HAS BEEN DECIDED TODAY.  SEE ESPECIALLY CUNARD,
284 U.S., AT 483-484, 487.  ON THE MERITS, HOWEVER, I DISSENT FOR THE
REASONS SET FORTH IN MR. JUSTICE FRANKFURTER'S OPINION. 
..END :
























BYRD V. BLUE RIDGE RURAL ELECTRIC COOPERATIVE, INC. 356 U.S. 525 


NO. 57.  ARGUED JANUARY 28, 1958 - RESTORED TO THE CALENDAR FOR
REARGUMENT MARCH 3, 1958 - REARGUED APRIL 28-29, 1958 - DECIDED MAY 19,
1958 - 238 F.2D 346, REVERSED AND CAUSE REMANDED. 


BASING JURISDICTION ON DIVERSITY OF CITIZENSHIP, PETITIONER SUED IN
THE FEDERAL DISTRICT COURT TO RECOVER FOR INJURIES ALLEGEDLY CAUSED BY
RESPONDENT'S NEGLIGENCE.  RESPONDENT ASSERTED AS AN AFFIRMATIVE DEFENSE
THAT PETITIONER WAS RESPONDENT'S EMPLOYEE FOR PURPOSES OF THE STATE
WORKMEN'S COMPENSATION ACT AND THAT THE ACT PROVIDED PETITIONER'S
EXCLUSIVE REMEDY.  AFTER HEARING RESPONDENT'S EVIDENCE ON THIS ISSUE,
THE TRIAL JUDGE STRUCK THE DEFENSE WITHOUT HEARING PETITIONER'S
EVIDENCE.  THE COURT OF APPEALS, HOLDING THAT UNDER STATE LAW
RESPONDENT HAD ESTABLISHED ITS DEFENSE, REVERSED AND DIRECTED THAT
JUDGMENT BE ENTERED FOR RESPONDENT.  HELD:  JUDGMENT REVERSED AND CAUSE
REMANDED.  PP. 526-540. 

1.  THE COURT OF APPEALS ERRED IN DIRECTING JUDGMENT FOR RESPONDENT
WITHOUT ALLOWING PETITIONER AN OPPORTUNITY TO PRESENT EVIDENCE ON THE
ISSUE OF RESPONDENT'S AFFIRMATIVE DEFENSE.  PP. 528-533. 

2.  NOTWITHSTANDING STATE DECISIONS HOLDING THAT THIS STATUTORY
DEFENSE MUST BE DECIDED BY THE JUDGE ALONE, PETITIONER IS ENTITLED IN A
FEDERAL COURT TO HAVE THE FACTUAL ISSUES RAISED BY THE DEFENSE
PRESENTED TO THE JURY.  PP. 533-540. 

(A)  THE STATE RULE REQUIRING JUDGE DETERMINATION OF THIS DEFENSE IS
NOT SO BOUND UP WITH STATE-CREATED RIGHTS AND OBLIGATIONS AS TO REQUIRE
ITS APPLICATION IN FEDERAL COURTS UNDER ERIE R. CO. V. TOMPKINS, 304
U.S. 64.  PP. 535-536. 

(B)  ALTHOUGH JURY DETERMINATION OF THE ISSUE MAY SUBSTANTIALLY AFFECT
THE OUTCOME OF THE CASE, THE POLICY OF GUARANTY TRUST CO. V. YORK, 326
U.S. 99, DOES NOT INVARIABLY PREVAIL OVER AN AFFIRMATIVE FEDERAL POLICY
FAVORING JURY DETERMINATION OF DISPUTED FACTUAL QUESTIONS.  PP. 536
539. 

(C)  THERE IS HERE NO SUCH STRONG POSSIBILITY THAT THE OUTCOME OF THE
SUIT WOULD BE AFFECTED BY JURY DETERMINATION OF THE DEFENSE AS TO
REQUIRE FEDERAL PRACTICE TO YIELD IN THE INTEREST OF UNIFORMITY.  PP.
539-540. 

BYRD V. BLUE RIDGE RURAL ELECTRIC COOPERATIVE, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS BROUGHT IN THE DISTRICT COURT FOR THE WESTERN DISTRICT
OF SOUTH CAROLINA.  JURISDICTION WAS BASED ON DIVERSITY OF
CITIZENSHIP.  28 U.S.C. SEC. 1332.  THE PETITIONER, A RESIDENT OF NORTH
CAROLINA, SUED RESPONDENT, A SOUTH CAROLINA CORPORATION, FOR DAMAGES
FOR INJURIES ALLEGEDLY CAUSED BY THE RESPONDENT'S NEGLIGENCE.  HE HAD
JUDGMENT ON A JURY VERDICT.  THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT REVERSED AND DIRECTED THE ENTRY OF JUDGMENT FOR THE
RESPONDENT.  238 F.2D 346.  WE GRANTED CERTIORARI, 352 U.S. 999, AND
SUBSEQUENTLY ORDERED REARGUMENT, 355 U.S. 950. 

THE RESPONDENT IS IN THE BUSINESS OF SELLING ELECTRIC POWER TO
SUBSCRIBERS IN RURAL SECTIONS OF SOUTH CAROLINA.  THE PETITIONER WAS
EMPLOYED AS A LINEMAN IN THE CONSTRUCTION CREW OF A CONSTRUCTION
CONTRACTOR.  THE CONTRACTOR, R.H. BOULIGNY, INC., HELD A CONTRACT WITH
THE RESPONDENT IN THE AMOUNT OF $334,300 FOR THE BUILDING OF SOME 24
MILES OF NEW POWER LINES, THE RECONVERSION TO HIGHER CAPACITIES OF
ABOUT 88 MILES OF EXISTING LINES, AND THE CONSTRUCTION OF 2 NEW
SUBSTATIONS AND A BREAKER STATION.  THE PETITIONER WAS INJURED WHILE
CONNECTING POWER LINES TO ONE OF THE NEW SUBSTATIONS. 

ONE OF RESPONDENT'S AFFIRMATIVE DEFENSES WAS THAT, UNDER THE SOUTH
CAROLINA WORKMEN'S COMPENSATION ACT, (FN1) THE PETITIONER - BECAUSE THE
WORK CONTRACTED TO BE DONE BY HIS EMPLOYER WAS WORK OF THE KIND ALSO
DONE BY THE RESPONDENT'S OWN CONSTRUCTION AND MAINTENANCE CREWS - HAD
THE STATUS OF A STATUTORY EMPLOYEE OF THE RESPONDENT AND WAS THEREFORE
BARRED FROM SUING THE RESPONDENT AT LAW BECAUSE OBLIGED TO ACCEPT
STATUTORY COMPENSATION BENEFITS AS THE EXCLUSIVE REMEDY FOR HIS
INJURIES.  (FN2)  TWO QUESTIONS CONCERNING THIS DEFENSE ARE BEFORE US:
(1) WHETHER THE COURT OF APPEALS ERRED IN DIRECTING JUDGMENT FOR
RESPONDENT WITHOUT A REMAND TO GIVE PETITIONER AN OPPORTUNITY TO
INTRODUCE FURTHER EVIDENCE; AND (2) WHETHER PETITIONER, STATE PRACTICE
NOTWITHSTANDING, IS ENTITLED TO A JURY DETERMINATION OF THE FACTUAL
ISSUES RAISED BY THIS DEFENSE. 

I. 

THE SUPREME COURT OF SOUTH CAROLINA HAS HELD THAT THERE IS NO
PARTICULAR FORMULA BY WHICH TO DETERMINE WHETHER AN OWNER IS A
STATUTORY EMPLOYER UNDER SEC. 72-111.  IN SMITH V. FULMER, 198 S.C. 91,
97, 15 S.E.2D 681, 683, THE STATE SUPREME COURT SAID: 

"AND THE OPINION IN THE MARCHBANKS CASE (MARCHBANKS V. DUKE POWER
CO., 190 S.C. 336, 2 S.E.2D 825, SAID TO BE THE "LEADING CASE" UNDER
THE STATUTE) REMINDS US THAT WHILE THE LANGUAGE OF THE STATUTE IS PLAIN
AND UNAMBIGUOUS, THERE ARE SO MANY DIFFERENT FACTUAL SITUATIONS WHICH
MAY ARISE THAT NO EASILY APPLIED FORMULA CAN BE LAID DOWN FOR THE
DETERMINATION OF ALL CASES.  IN OTHER WORDS, 'IT IS OFTEN A MATTER OF
EXTREME DIFFICULTY TO DECIDE WHETHER THE WORK IN A GIVEN CASE FALLS
WITHIN THE DESIGNATION OF THE STATUTE.  IT IS IN EACH CASE LARGELY A
QUESTION OF DEGREE AND OF FACT.'" 

THE RESPONDENT'S MANAGER TESTIFIED ON DIRECT EXAMINATION THAT THREE
OF ITS SUBSTATIONS WERE BUILT BY THE RESPONDENT'S OWN CONSTRUCTION AND
MAINTENANCE CREWS.  WHEN PRESSED ON CROSS-EXAMINATION, HOWEVER, HIS
ANSWERS LEFT HIS TESTIMONY IN SUCH DOUBT AS TO LEAD THE TRIAL JUDGE TO
SAY, "I UNDERSTOOD HE CHANGED HIS TESTIMONY, THAT THEY HAD NOT BUILT
THREE."  BUT THE CREDIBILITY OF THE MANAGER'S TESTIMONY, AND THE
GENERAL QUESTION WHETHER THE EVIDENCE IN SUPPORT OF THE AFFIRMATIVE
DEFENSE PRESENTED A JURY ISSUE, BECAME IRRELEVANT BECAUSE OF THE
INTERPRETATION GIVEN SEC. 72-111 BY THE TRIAL JUDGE.  IN STRIKING
RESPONDENT'S AFFIRMATIVE DEFENSE AT THE CLOSE OF ALL THE EVIDENCE (FN3)
HE RULED THAT THE RESPONDENT WAS THE STATUTORY EMPLOYER OF THE
PETITIONER ONLY IF THE CONSTRUCTION WORK DONE BY RESPONDENT'S CREWS WAS
DONE FOR SOMEBODY ELSE, AND WAS NOT THE STATUTORY EMPLOYER IF, AS THE
PROOFS SHOWED, THE CREWS BUILT FACILITIES ONLY FOR THE RESPONDENT'S OWN
USE.  "MY IDEA OF ENGAGING IN THE BUSINESS IS TO DO SOMETHING FOR
SOMEBODY ELSE.  WHAT THEY (THE RESPONDENT) ARE DOING - AND EVERYTHING
THEY DO ABOUT REPAIRING LINES AND BUILDING SUBSTATIONS, THEY DO IT FOR
THEMSELVES."  ON THIS VIEW OF THE MEANING OF THE STATUTE, THE EVIDENCE,
EVEN ACCEPTING THE MANAGER'S TESTIMONY ON DIRECT EXAMINATION AS TRUE,
LACKED PROOF OF AN ESSENTIAL ELEMENT OF THE AFFIRMATIVE DEFENSE, AND
THERE WAS THUS NOTHING FOR THE PETITIONER TO MEET WITH PROOF OF HIS
OWN. 

THE COURT OF APPEALS DISAGREED WITH THE DISTRICT COURT'S CONSTRUCTION
OF SEC. 72-111.  RELYING ON THE DECISIONS OF THE SUPREME COURT OF SOUTH
CAROLINA, AMONG OTHERS, IN MARCHBANKS V. DUKE POWER CO., 190 S.C. 336,
2 S.E.2D 825, AND BOSEMAN V. PACIFIC MILLS, 193 S.C. 479, 8 S.E.2D 878,
THE COURT OF APPEALS HELD THAT THE STATUTE GRANTED RESPONDENT IMMUNITY
FROM THE ACTION IF THE PROOFS ESTABLISHED THAT THE RESPONDENT'S OWN
CREWS HAD CONSTRUCTED LINES AND SUBSTATIONS WHICH, LIKE THE WORK
CONTRACTED TO THE PETITIONER'S EMPLOYER, WERE NECESSARY FOR THE
DISTRIBUTION OF THE ELECTRIC POWER WHICH THE RESPONDENT WAS IN THE
BUSINESS OF SELLING.  WE ORDINARILY ACCEPT THE INTERPRETATION OF LOCAL
LAW BY THE COURT OF APPEALS, CF.  RAGAN V. MERCHANTS TRANSFER CO., 337
U.S. 530, 534, AND DO SO READILY HERE SINCE NEITHER PARTY NOW DISPUTES
THE INTERPRETATION. 

HOWEVER, INSTEAD OF ORDERING A NEW TRIAL AT WHICH THE PETITIONER
MIGHT OFFER HIS OWN PROOF PERTINENT TO A DETERMINATION ACCORDING TO THE
CORRECT INTERPRETATION, THE COURT OF APPEALS MADE ITS OWN DETERMINATION
ON THE RECORD AND DIRECTED A JUDGMENT FOR THE RESPONDENT.  THE COURT
NOTED THAT THE RURAL ELECTRIC COOPERATIVE ACT OF SOUTH CAROLINA (FN4)
AUTHORIZED THE RESPONDENT TO CONSTRUCT, ACQUIRE, MAINTAIN, AND OPERATE
ELECTRIC GENERATING PLANTS, BUILDINGS, AND EQUIPMENT, AND ANY AND ALL
KINDS OF PROPERTY WHICH MIGHT BE NECESSARY OR CONVENIENT TO ACCOMPLISH
THE PURPOSES FOR WHICH THE CORPORATION WAS ORGANIZED, AND POINTED OUT
THAT THE WORK CONTRACTED TO THE PETITIONER'S EMPLOYER WAS OF THE CLASS
WHICH RESPONDENT WAS EMPOWERED BY ITS CHARTER TO PERFORM. 

THE COURT RESOLVED THE UNCERTAINTIES IN THE MANAGER'S TESTIMONY IN A
MANNER LARGELY FAVORABLE TO THE RESPONDENT:  "THE TESTIMONY WITH
RESPECT TO THE CONSTRUCTION OF THE SUBSTATIONS OF BLUE RIDGE, STATED
MOST FAVORABLY TO THE  ...  PETITIONER, DISCLOSES THAT ORIGINALLY BLUE
RIDGE BUILT THREE SUBSTATIONS WITH ITS OWN FACILITIES, BUT THAT ALL OF
THE SUBSTATIONS WHICH WERE BUILT AFTER THE WAR, INCLUDING THE SIX IT
WAS OPERATING AT THE TIME OF THE ACCIDENT, WERE CONSTRUCTED FOR IT BY
INDEPENDENT CONTRACTORS, AND THAT AT THE TIME OF THE ACCIDENT IT HAD NO
ONE IN ITS DIRECT EMPLOY CAPABLE OF HANDLING THE TECHNICAL DETAIL OF
SUBSTATION CONSTRUCTION."  238 F.2D 346, 350. 

THE COURT FOUND THAT THE RESPONDENT FINANCED THE WORK CONTRACTED TO
THE PETITIONER'S EMPLOYER WITH A LOAN FROM THE UNITED STATES, PURCHASED
THE MATERIALS USED IN THE WORK, AND ENTERED INTO AN ENGINEERING SERVICE
CONTRACT WITH AN INDEPENDENT ENGINEERING COMPANY FOR THE DESIGN AND
SUPERVISION OF THE WORK, CONCLUDING FROM THESE FINDINGS THAT "THE MAIN
ACTOR IN THE WHOLE ENTERPRISE WAS THE COOPERATIVE ITSELF."  IBID. 

FINALLY, THE COURT HELD THAT ITS FINDINGS ENTITLED THE RESPONDENT TO
THE DIRECTION OF A JUDGMENT IN ITS FAVOR.  "  ...  THERE CAN BE NO
DOUBT THAT BLUE RIDGE WAS NOT ONLY IN THE BUSINESS OF SUPPLYING
ELECTRICITY TO RURAL COMMUNITIES, BUT ALSO IN THE BUSINESS OF
CONSTRUCTING THE LINES AND SUBSTATIONS NECESSARY FOR THE DISTRIBUTION
OF THE PRODUCT  ...  ."  ID., AT 351. 

WHILE THE MATTER IS NOT ADVERTED TO IN THE COURT'S OPINION, IMPLICIT
IN THE DIRECTION OF VERDICT IS THE HOLDING THAT THE PETITIONER,
ALTHOUGH HAVING NO OCCASION TO DO SO UNDER THE DISTRICT COURT'S
ERRONEOUS CONSTRUCTION OF THE STATUTE, WAS NOT ENTITLED TO AN
OPPORTUNITY TO MEET THE RESPONDENT'S CASE UNDER THE CORRECT
INTERPRETATION.  THAT HOLDING IS ALSO IMPLIED IN THE COURT'S DENIAL,
WITHOUT OPINION, OF PETITIONER'S MOTION FOR A REHEARING SOUGHT ON THE
GROUND THAT "  ...  THE DIRECTION TO ENTER JUDGMENT FOR THE DEFENDANT
INSTEAD OF A DIRECTION TO GRANT A NEW TRIAL DENIES PLAINTIFF HIS RIGHT
TO INTRODUCE EVIDENCE IN CONTRADICTION TO THAT OF THE DEFENDANT ON THE
ISSUE OF DEFENDANT'S AFFIRMATIVE DEFENSE, A RIGHT WHICH HE WOULD HAVE
EXERCISED IF THE DISTRICT JUDGE HAD RULED ADVERSELY TO HIM ON HIS
MOTION TO DISMISS, AND THUS DEPRIVES HIM OF HIS CONSTITUTIONAL RIGHT TO
A JURY TRIAL ON A FACTUAL ISSUE." 

WE BELIEVE THAT THE COURT OF APPEALS ERRED.  WE DO NOT AGREE WITH THE
PETITIONER'S ARGUMENT IN THIS COURT THAT THE RESPONDENT'S EVIDENCE WAS
INSUFFICIENT TO WITHSTAND THE MOTION TO STRIKE THE DEFENSE AND THAT HE
IS ENTITLED TO OUR JUDGMENT REINSTATING THE JUDGMENT OF THE DISTRICT
COURT.  BUT THE PETITIONER IS ENTITLED TO HAVE THE QUESTION DETERMINED
IN THE TRIAL COURT.  THIS WOULD BE NECESSARY EVEN IF PETITIONER OFFERED
NO PROOF OF HIS OWN.  ALTHOUGH THE RESPONDENT'S EVIDENCE WAS SUFFICIENT
TO WITHSTAND THE MOTION UNDER THE MEANING GIVEN THE STATUTE BY THE
COURT OF APPEALS, IT PRESENTED A FACT QUESTION, WHICH, IN THE
CIRCUMSTANCES OF THIS CASE TO BE DISCUSSED INFRA, IS PROPERLY TO BE
DECIDED BY A JURY.  THIS IS CLEAR NOT ONLY BECAUSE OF THE ISSUE OF THE
CREDIBILITY OF THE MANAGER'S VITAL TESTIMONY, BUT ALSO BECAUSE, EVEN
SHOULD THE JURY RESOLVE THAT ISSUE AS DID THE COURT OF APPEALS, THE
JURY ON THE ENTIRE RECORD - CONSISTENT WITH THE VIEW OF THE SOUTH
CAROLINA CASES THAT THIS QUESTION IS IN EACH CASE LARGELY ONE OF DEGREE
AND OF FACT - MIGHT REASONABLY REACH AN OPPOSITE CONCLUSION FROM THE
COURT OF APPEALS AS TO THE ULTIMATE FACT WHETHER THE RESPONDENT WAS A
STATUTORY EMPLOYER. 

AT ALL EVENTS, THE PETITIONER IS PLAINLY ENTITLED TO HAVE AN
OPPORTUNITY TO TRY THE ISSUE UNDER THE COURT OF APPEALS'
INTERPRETATION.  HIS MOTION TO DISMISS THE AFFIRMATIVE DEFENSE,
PROPERLY VIEWED, WAS ANALOGOUS TO A DEFENDANT'S MOTION FOR INVOLUNTARY
DISMISSAL OF AN ACTION AFTER THE PLAINTIFF HAS COMPLETED THE
PRESENTATION OF HIS EVIDENCE.  UNDER RULE 41(B) OF THE FEDERAL RULES OF
CIVIL PROCEDURE, IN SUCH CASE "THE DEFENDANT, WITHOUT WAIVING HIS RIGHT
TO OFFER EVIDENCE IN THE EVENT THE MOTION IS NOT GRANTED, MAY MOVE FOR
DISMISSAL ON THE GROUND THAT UPON THE FACTS AND THE LAW THE PLAINTIFF
HAS SHOWN NO RIGHT TO RELIEF."  THE RESPONDENT ARGUES, HOWEVER, THAT
BEFORE THE TRIAL JUDGE RULED ON THE PETITIONER'S MOTION, THE
PETITIONER'S COUNSEL, IN EFFECT, CONCEDED THAT HE HAD NO OTHER EVIDENCE
TO OFFER AND WAS SUBMITTING THE ISSUE OF WHETHER THE RESPONDENT WAS A
STATUTORY EMPLOYER ON THE BASIS OF THE EVIDENCE ALREADY IN THE CASE. 
THE JUDGE ASKED PETITIONER'S COUNSEL:  "IN THE EVENT I OVERRULE YOUR
MOTION, DO YOU CONTEMPLATE PUTTING UP ANY TESTIMONY IN REPLY?"  COUNSEL
ANSWERED:  "WE HAVEN'T DISCUSSED IT, BUT WE ARE MAKING THAT MOTION.  I
FRANKLY DON'T KNOW AT THIS POINT OF ANY REPLY THAT IS NECESSARY.  I
DON'T KNOW OF ANY EVIDENCE IN THIS CASE - ."  THE INTERRUPTION WHICH
PREVENTED COUNSEL'S COMPLETION OF THE ANSWER WAS THE TRIAL JUDGE'S
COMMENT:  "I AM INCLINED TO THINK SO FAR IT IS A QUESTION OF LAW BUT I
WILL HEAR FROM MR. WALKER (RESPONDENT'S COUNSEL) ON THAT.  I DON'T KNOW
OF ANY ISSUE OF FACT TO SUBMIT TO THE JURY.  IT SEEMS TO ME UNDER THE
TESTIMONY HERE THERE HAS BEEN - I DON'T KNOW OF ANY CONFLICT IN THE
TESTIMONY, SO FAR AS THAT'S CONCERNED, SO FAR."  THE JUDGE TURNED TO
RESPONDENT'S COUNSEL AND THERE FOLLOWED A LONG COLLOQUY WITH HIM, (FN5)
AT THE CONCLUSION OF WHICH THE JUDGE DISMISSED THE DEFENSE UPON THE
GROUND THAT UNDER HIS INTERPRETATION OF THE STATUTE THE DEFENSE WAS NOT
SUSTAINED WITHOUT EVIDENCE THAT THE RESPONDENT'S BUSINESS INVOLVED THE
DOING OF WORK FOR OTHERS OF THE KIND DONE BY THE PETITIONER'S EMPLOYER
FOR THE RESPONDENT.  UPON THIS RECORD IT PLAINLY CANNOT BE SAID THAT
THE PETITIONER SUBMITTED THE ISSUE UPON THE EVIDENCE IN THE CASE AND
CONCEDED THAT HE HAD NO EVIDENCE OF HIS OWN TO OFFER.  THE PETITIONER
WAS FULLY JUSTIFIED IN THAT CIRCUMSTANCE IN NOT COMING FORWARD WITH
PROOF OF HIS OWN AT THAT STAGE OF THE PROCEEDINGS, FOR HE HAD NOTHING
TO MEET UNDER THE DISTRICT COURT'S VIEW OF THE STATUTE.  HE THUS CANNOT
BE PENALIZED BY THE DENIAL OF HIS DAY IN COURT TO TRY THE ISSUE UNDER
THE CORRECT INTERPRETATION OF THE STATUTE.  CF. FOUNTAIN V. FILSON, 336
U.S. 681; WEADE V. DICHMANN, WRIGHT & PUGH, INC., 337 U.S. 801; GLOBE
LIQUOR CO. V. SAN ROMAN, 332 U.S. 571; CONE V. WEST VIRGINIA PAPER CO.,
330 U.S. 212. 

  II. 

A QUESTION IS ALSO PRESENTED AS TO WHETHER ON REMAND THE FACTUAL
ISSUE IS TO BE DECIDED BY THE JUDGE OR BY THE JURY.  THE RESPONDENT
ARGUES ON THE BASIS OF THE DECISION OF THE SUPREME COURT OF SOUTH
CAROLINA IN ADAMS V. DAVISON-PAXON CO., 230 S.C. 532, 96 S.E.2D 566,
(FN6) THAT THE ISSUE OF IMMUNITY SHOULD BE DECIDED BY THE JUDGE AND NOT
BY THE JURY.  THAT WAS A NEGLIGENCE ACTION BROUGHT IN THE STATE TRIAL
COURT AGAINST A STORE OWNER BY AN EMPLOYEE OF AN INDEPENDENT CONTRACTOR
WHO OPERATED THE STORE'S MILLINERY DEPARTMENT.  THE TRIAL JUDGE DENIED
THE STORE OWNER'S MOTION FOR A DIRECTED VERDICT MADE UPON THE GROUND
THAT SEC. 72-111 BARRED THE PLAINTIFF'S ACTION.  THE JURY RETURNED A
VERDICT FOR THE PLAINTIFF.  THE SOUTH CAROLINA SUPREME COURT REVERSED,
HOLDING THAT IT WAS FOR THE JUDGE AND NOT THE JURY TO DECIDE ON THE
EVIDENCE WHETHER THE OWNER WAS A STATUTORY EMPLOYER, AND THAT THE STORE
OWNER HAD SUSTAINED HIS DEFENSE.  THE COURT RESTED ITS HOLDING ON
DECISIONS, LISTED IN FOOTNOTE 8, INFRA, INVOLVING JUDICIAL REVIEW OF
THE INDUSTRIAL COMMISSION AND SAID:    "THUS THE TRIAL COURT SHOULD
HAVE IN THIS CASE RESOLVED THE CONFLICTS IN THE EVIDENCE AND DETERMINED
THE FACT OF WHETHER  ...  THE INDEPENDENT CONTRACTOR WAS PERFORMING A
PART OF THE 'TRADE, BUSINESS OR OCCUPATION' OF THE DEPARTMENT STORE
APPELLANT AND, THEREFORE, WHETHER  ...  THE EMPLOYEE'S REMEDY IS
EXCLUSIVELY UNDER THE WORKMEN'S COMPENSATION LAW."  230 S.C., AT 543,
96 S.E.2D, AT 572. 

THE RESPONDENT ARGUES THAT THIS STATE-COURT DECISION GOVERNS THE
PRESENT DIVERSITY CASE AND "DIVESTS THE JURY OF ITS NORMAL FUNCTION" TO
DECIDE THE DISPUTED FACT QUESTION OF THE RESPONDENT'S IMMUNITY UNDER
SEC. 72-111.  THIS IS TO CONTEND THAT THE FEDERAL COURT IS BOUND UNDER
ERIE R. CO. V. TOMPKINS, 304 U.S. 64, TO FOLLOW THE STATE COURT'S
HOLDING TO SECURE UNIFORM ENFORCEMENT OF THE IMMUNITY CREATED BY THE
STATE.  (FN7) 

FIRST.  IT WAS DECIDED IN ERIE R. CO. V. TOMPKINS THAT THE FEDERAL
COURTS IN DIVERSITY CASES MUST RESPECT THE DEFINITION OF STATE-CREATED
RIGHTS AND OBLIGATIONS BY THE STATE COURTS.  WE MUST, THEREFORE, FIRST
EXAMINE THE RULE IN ADAMS V. DAVISON-PAXON CO. TO DETERMINE WHETHER IT
IS BOUND UP WITH THESE RIGHTS AND OBLIGATIONS IN SUCH A WAY THAT ITS
APPLICATION IN THE FEDERAL COURT IS REQUIRED.  CITIES SERVICE OIL CO.
V. DUNLAP, 308 U.S. 208. 

THE WORKMEN'S COMPENSATION ACT IS ADMINISTERED IN SOUTH CAROLINA BY
ITS INDUSTRIAL COMMISSION.  THE SOUTH CAROLINA COURTS HOLD THAT, ON
JUDICIAL REVIEW OF ACTIONS OF THE COMMISSION UNDER SEC. 72-111, THE
QUESTION WHETHER THE CLAIM OF AN INJURED WORKMAN IS WITHIN THE
COMMISSION'S JURISDICTION IS A MATTER OF LAW FOR DECISION BY THE COURT,
WHICH MAKES ITS OWN FINDINGS OF FACT RELATING TO THAT JURISDICTION. 
(FN8)  THE SOUTH CAROLINA SUPREME COURT STATES NO REASONS IN ADAMS V.
DAVISON-PAXON CO. WHY, ALTHOUGH THE JURY DECIDES ALL OTHER FACTUAL
ISSUES RAISED BY THE CAUSE OF ACTION AND DEFENSES, THE JURY IS
DISPLACED AS TO THE FACTUAL ISSUE RAISED BY THE AFFIRMATIVE DEFENSE
UNDER SEC. 72-111.  THE DECISIONS CITED TO SUPPORT THE HOLDING ARE
THOSE LISTED IN FOOTNOTE 8, WHICH ARE CONCERNED SOLELY WITH DEFINING
THE SCOPE AND METHOD OF JUDICIAL REVIEW OF THE INDUSTRIAL COMMISSION. 
A STATE MAY, OF COURSE, DISTRIBUTE THE FUNCTIONS OF ITS JUDICIAL
MACHINERY AS IT SEES FIT.  THE DECISIONS RELIED UPON, HOWEVER, FURNISH
NO REASON FOR SELECTING THE JUDGE RATHER THAN THE JURY TO DECIDE THIS
SINGLE AFFIRMATIVE DEFENSE IN THE NEGLIGENCE ACTION.  THEY SIMPLY
REFLECT A POLICY, CF. CROWELL V. BENSON, 285 U.S. 22, THAT
ADMINISTRATIVE DETERMINATION OF "JURISDICTIONAL FACTS" SHOULD NOT BE
FINAL BUT SUBJECT TO JUDICIAL REVIEW.  THE CONCLUSION IS INESCAPABLE
THAT THE ADAMS HOLDING IS GROUNDED IN THE PRACTICAL CONSIDERATION THAT
THE QUESTION HAD THERETOFORE COME BEFORE THE SOUTH CAROLINA COURTS FROM
THE INDUSTRIAL COMMISSION AND THE COURTS HAD BECOME ACCUSTOMED TO
DECIDING THE FACTUAL ISSUE OF IMMUNITY WITHOUT THE AID OF JURIES.  WE
FIND NOTHING TO SUGGEST THAT THIS RULE WAS ANNOUNCED AS AN INTEGRAL
PART OF THE SPECIAL RELATIONSHIP CREATED BY THE STATUTE.  THUS THE
REQUIREMENT APPEARS TO BE MERELY A FORM AND MODE OF ENFORCING THE
IMMUNITY, GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 108, AND NOT A RULE
INTENDED TO BE BOUND UP WITH THE DEFINITION OF THE RIGHTS AND
OBLIGATIONS OF THE PARTIES.  THE SITUATION IS THEREFORE NOT ANALOGOUS
TO THAT IN DICE V. AKRON, C.&Y.R.  CO., 342 U.S. 359, WHERE THIS COURT
HELD THAT THE RIGHT TO TRIAL BY JURY IS SO SUBSTANTIAL A PART OF THE
CAUSE OF ACTION CREATED BY THE FEDERAL EMPLOYERS' LIABILITY ACT THAT
THE OHIO COURTS COULD NOT APPLY, IN AN ACTION UNDER THAT STATUTE, THE
OHIO RULE THAT THE QUESTION OF FRAUDULENT RELEASE WAS FOR DETERMINATION
BY A JUDGE RATHER THAN BY A JURY. 

SECOND.  BUT CASES FOLLOWING ERIE HAVE EVINCED A BROADER POLICY TO
THE EFFECT THAT THE FEDERAL COURTS SHOULD CONFORM AS NEAR AS MAY BE -
IN THE ABSENCE OF OTHER CONSIDERATIONS - TO STATE RULES EVEN OF FORM
AND MODE WHERE THE STATE RULES MAY BEAR SUBSTANTIALLY ON THE QUESTION
WHETHER THE LITIGATION WOULD COME OUT ONE WAY IN THE FEDERAL COURT AND
ANOTHER WAY IN THE STATE COURT IF THE FEDERAL COURT FAILED TO APPLY A
PARTICULAR LOCAL RULE.  (FN9)  E.G., GUARANTY TRUST CO. V. YORK, SUPRA;
BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198.  CONCEDEDLY THE NATURE OF
THE TRIBUNAL WHICH TRIES ISSUES MAY BE IMPORTANT IN THE ENFORCEMENT OF
THE PARCEL OF RIGHTS MAKING UP A CAUSE OF ACTION OR DEFENSE, AND BEAR
SIGNIFICANTLY UPON ACHIEVEMENT OF UNIFORM ENFORCEMENT OF THE RIGHT.  IT
MAY WELL BE THAT IN THE INSTANT PERSONAL-INJURY CASE THE OUTCOME WOULD
BE SUBSTANTIALLY AFFECTED BY WHETHER THE ISSUE OF IMMUNITY IS DECIDED
BY A JUDGE OR A JURY.  THEREFORE, WERE "OUTCOME" THE ONLY
CONSIDERATION, A STRONG CASE MIGHT APPEAR FOR SAYING THAT THE FEDERAL
COURT SHOULD FOLLOW THE STATE PRACTICE. 

BUT THERE ARE AFFIRMATIVE COUNTERVAILING CONSIDERATIONS AT WORK
HERE.  THE FEDERAL SYSTEM IS AN INDEPENDENT SYSTEM FOR ADMINISTERING
JUSTICE TO LITIGANTS WHO PROPERLY INVOKE ITS JURISDICTION.  AN
ESSENTIAL CHARACTERISTIC OF THAT SYSTEM IS THE MANNER IN WHICH, IN
CIVIL COMMON-LAW ACTIONS, IT DISTRIBUTES TRIAL FUNCTIONS BETWEEN JUDGE
AND JURY AND, UNDER THE INFLUENCE - IF NOT THE COMMAND (FN10) - OF THE
SEVENTH AMENDMENT, ASSIGNS THE DECISIONS OF DISPUTED QUESTIONS OF FACT
TO THE JURY.  JACOB V. NEW YORK, 315 U.S. 752.  (FN11)  THE POLICY OF
UNIFORM ENFORCEMENT OF STATE-CREATED RIGHTS AND OBLIGATIONS, SEE, E.G.,
GUARANTY TRUST CO. V. YORK, SUPRA, CANNOT IN EVERY CASE EXACT
COMPLIANCE WITH A STATE RULE (FN12) - NOT BOUND UP WITH RIGHTS AND
OBLIGATIONS - WHICH DISRUPTS THE FEDERAL SYSTEM OF ALLOCATING FUNCTIONS
BETWEEN JUDGE AND JURY.  HERRON V. SOUTHERN PACIFIC CO., 283 U.S. 91. 
THUS THE INQUIRY HERE IS WHETHER THE FEDERAL POLICY FAVORING JURY
DECISIONS OF DISPUTED FACT QUESTIONS SHOULD YIELD TO THE STATE RULE IN
THE INTEREST OF FURTHERING THE OBJECTIVE THAT THE LITIGATION SHOULD NOT
COME OUT ONE WAY IN THE FEDERAL COURT AND ANOTHER WAY IN THE STATE
COURT. 

WE THINK THAT IN THE CIRCUMSTANCES OF THIS CASE THE FEDERAL COURT
SHOULD NOT FOLLOW THE STATE RULE.  IT CANNOT BE GAINSAID THAT THERE IS
A STRONG FEDERAL POLICY AGAINST ALLOWING STATE RULES TO DISRUPT THE
JUDGE-JURY RELATIONSHIP IN THE FEDERAL COURTS.  IN HERRON V. SOUTHERN
PACIFIC CO., SUPRA, THE TRIAL JUDGE IN A PERSONAL-INJURY NEGLIGENCE
ACTION BROUGHT IN THE DISTRICT COURT FOR ARIZONA ON DIVERSITY GROUNDS
DIRECTED A VERDICT FOR THE DEFENDANT WHEN IT APPEARED AS A MATTER OF
LAW THAT THE PLAINTIFF WAS GUILTY OF CONTRIBUTORY NEGLIGENCE.  THE
FEDERAL JUDGE REFUSED TO BE BOUND BY A PROVISION OF THE ARIZONA
CONSTITUTION WHICH MADE THE JURY THE SOLE ARBITER OF THE QUESTION OF
CONTRIBUTORY NEGLIGENCE.  (FN13)  THIS COURT SUSTAINED THE ACTION OF
THE TRIAL JUDGE, HOLDING THAT "STATE LAWS CANNOT ALTER THE ESSENTIAL
CHARACTER OR FUNCTION OF A FEDERAL COURT" BECAUSE THAT FUNCTION "IS NOT
IN ANY SENSE A LOCAL MATTER, AND STATE STATUTES WHICH WOULD INTERFERE
WITH THE APPROPRIATE PERFORMANCE OF THAT FUNCTION ARE NOT BINDING UPON
THE FEDERAL COURT UNDER EITHER THE CONFORMITY ACT OR THE 'RULES OF
DECISION' ACT."  ID., AT 94.  PERHAPS EVEN MORE CLEARLY IN LIGHT OF THE
INFLUENCE OF THE SEVENTH AMENDMENT, THE FUNCTION ASSIGNED TO THE JURY
"IS AN ESSENTIAL FACTOR IN THE PROCESS FOR WHICH THE FEDERAL
CONSTITUTION PROVIDES."  ID., AT 95.  CONCEDEDLY THE HERRON CASE WAS
DECIDED BEFORE ERIE R. CO. V. TOMPKINS, BUT EVEN WHEN SWIFT V. TYSON,
16 PET. 1, WAS GOVERNING LAW AND ALLOWED FEDERAL COURTS SITTING IN
DIVERSITY CASES TO DISREGARD STATE DECISIONAL LAW, IT WAS NEVER THOUGHT
THAT STATE STATUTES OR CONSTITUTIONS WERE SIMILARLY TO BE DISREGARDED. 
GREEN V. NEAL'S LESSEE, 6 PET. 291.  YET HERRON HELD THAT STATE
STATUTES AND CONSTITUTIONAL PROVISIONS COULD NOT DISRUPT OR ALTER THE
ESSENTIAL CHARACTER OR FUNCTION OF A FEDERAL COURT.  (FN14) 

THIRD.  WE HAVE DISCUSSED THE PROBLEM UPON THE ASSUMPTION THAT THE
OUTCOME OF THE LITIGATION MAY BE SUBSTANTIALLY AFFECTED BY WHETHER THE
ISSUE OF IMMUNITY IS DECIDED BY A JUDGE OR A JURY.  BUT CLEARLY THERE
IS NOT PRESENT HERE THE CERTAINTY THAT A DIFFERENT RESULT WOULD FOLLOW,
CF. GUARANTY TRUST CO. V. YORK, SUPRA, OR EVEN THE STRONG POSSIBILITY
THAT THIS WOULD BE THE CASE, CF. BERNHARDT V. POLYGRAPHIC CO., SUPRA.
THERE ARE FACTORS PRESENT HERE WHICH MIGHT REDUCE THAT POSSIBILITY. 
THE TRIAL JUDGE IN THE FEDERAL SYSTEM HAS POWERS DENIED THE JUDGES OF
MANY STATES TO COMMENT ON THE WEIGHT OF EVIDENCE AND CREDIBILITY OF
WITNESSES, AND DISCRETION TO GRANT A NEW TRIAL IF THE VERDICT APPEARS
TO HIM TO BE AGAINST THE WEIGHT OF THE EVIDENCE.  WE DO NOT THINK THE
LIKELIHOOD OF A DIFFERENT RESULT IS SO STRONG AS TO REQUIRE THE FEDERAL
PRACTICE OF JURY DETERMINATION OF DISPUTED FACTUAL ISSUES TO YIELD TO
THE STATE RULE IN THE INTEREST OF UNIFORMITY OF OUTCOME.  (FN15) 

THE COURT OF APPEALS DID NOT CONSIDER OTHER GROUNDS OF APPEAL RAISED
BY THE RESPONDENT BECAUSE THE GROUND TAKEN DISPOSED OF THE CASE.  WE
ACCORDINGLY REMAND THE CASE TO THE COURT OF APPEALS FOR THE DECISION OF
THE OTHER QUESTIONS, WITH INSTRUCTIONS THAT, IF NOT MADE UNNECESSARY BY
THE DECISION OF SUCH QUESTIONS, THE COURT OF APPEALS SHALL REMAND THE
CASE TO THE DISTRICT COURT FOR A NEW TRIAL OF SUCH ISSUES AS THE COURT
OF APPEALS MAY DIRECT.  REVERSED AND REMANDED. 

FN1  S.C. CODE, 1952, PROVIDES: 

"SEC. 72-111.  LIABILITY OF OWNER TO WORKMEN OF SUBCONTRACTOR. 

"WHEN ANY PERSON, IN THIS SECTION AND SECS. 72-113 AND 72-114
REFERRED TO AS 'OWNER,' UNDERTAKES TO PERFORM OR EXECUTE ANY WORK WHICH
IS A PART OF HIS TRADE, BUSINESS OR OCCUPATION AND CONTRACTS WITH ANY
OTHER PERSON (IN THIS SECTION AND SECS. 72-113 TO 72-116 REFERRED TO AS
'SUBCONTRACTOR') FOR THE EXECUTION OR PERFORMANCE BY OR UNDER SUCH
SUBCONTRACTOR OF THE WHOLE OR ANY PART OF THE WORK UNDERTAKEN BY SUCH
OWNER, THE OWNER SHALL BE LIABLE TO PAY TO ANY WORKMAN EMPLOYED IN THE
WORK ANY COMPENSATION UNDER THIS TITLE WHICH HE WOULD HAVE BEEN LIABLE
TO PAY IF THE WORKMAN HAD BEEN IMMEDIATELY EMPLOYED BY HIM." 

"SEC. 72-121.  EMPLOYEES' RIGHTS UNDER TITLE EXCLUDE ALL OTHERS
AGAINST EMPLOYER. 

"THE RIGHTS AND REMEDIES GRANTED BY THIS TITLE TO ANY EMPLOYEE WHEN
HE AND HIS EMPLOYER HAVE ACCEPTED THE PROVISIONS OF THIS TITLE,
RESPECTIVELY, TO PAY AND ACCEPT COMPENSATION ON ACCOUNT OF PERSONAL
INJURY OR DEATH BY ACCIDENT, SHALL EXCLUDE ALL OTHER RIGHTS AND
REMEDIES OF SUCH EMPLOYEE, HIS PERSONAL REPRESENTATIVE, PARENTS,
DEPENDENTS OR NEXT OF KIN AS AGAINST HIS EMPLOYER, AT COMMON LAW OR
OTHERWISE, ON ACCOUNT OF SUCH INJURY, LOSS OF SERVICE OR DEATH." 

"SEC. 72-123.  ONLY ONE REMEDY AVAILABLE. 

"EITHER THE ACCEPTANCE OF AN AWARD UNDER THIS TITLE OR THE
PROCUREMENT AND COLLECTION OF A JUDGMENT IN AN ACTION AT LAW SHALL BE A
BAR TO PROCEEDING FURTHER WITH THE ALTERNATE REMEDY." 

FN2  IN EARLIER PROCEEDINGS THE CASE WAS DISMISSED ON THE GROUND THAT
THE RESPONDENT, A NONPROFIT CORPORATION, WAS IMMUNE FROM TORT LIABILITY
UNDER SOUTH CAROLINA LAW.  118 F. SUPP. 868.  THE COURT OF APPEALS
REVERSED AND REMANDED THE CASE FOR TRIAL.  215 F.2D 542. 

FN3  THE TRIAL JUDGE, IN SPITE OF HIS ACTION STRIKING THE DEFENSE,
PERMITTED THE RESPONDENT TO INCLUDE THE AFFIRMATIVE DEFENSE AS A GROUND
OF ITS MOTIONS FOR A DIRECTED VERDICT AND JUDGMENT NON OBSTANTE
VEREDICTO. 

FN4  S.C. CODE, 1952, SEC. 12-1025. 

FN5  THE ONLY REMARKS THEREAFTER MADE BY THE PETITIONER'S COUNSEL
REITERATED HIS STATEMENT THAT HE PRESSED HIS MOTION TO DISMISS THE
AFFIRMATIVE DEFENSE. 

FN6  THE DECISION CAME DOWN SEVERAL MONTHS AFTER THE COURT OF APPEALS
DECIDED THIS CASE. 

FN7  SEE CITIES SERVICE OIL CO. V. DUNLAP, 308 U.S. 208; WEST V.
AMERICAN TEL. & TEL. CO., 311 U.S. 223; KLAXON CO. V. STENTOR CO., 313
U.S. 487; GUARANTY TRUST CO. V. YORK, 326 U.S. 99; ANGEL V. BULLINGTON,
330 U.S. 183; RAGAN V. MERCHANTS TRANSFER CO., 337 U.S. 530; WOODS V.
INTERSTATE REALTY CO., 337 U.S. 535; COHEN V. BENEFICIAL LOAN CORP.,
337 U.S. 541; BERNHARDT V. POLYGRAPHIC CO., 350 U.S. 198; SAMPSON V.
CHANNELL, 110 F.2D 754. 

FN8  KNIGHT V. SHEPHERD, 191 S.C. 452, 4 S.E.2D 906; TEDARS V.
SAVANNAH RIVER VENEER CO., 202 S.C. 363, 25 S.E.2D 235; MCDOWELL V.
STILLEY PLYWOOD CO., 210 S.C. 173, 41 S.E.2D 872; MILES V. WEST
VIRGINIA PULP & PAPER CO., 212 S.C. 424, 48 S.E.2D 26; WATSON V.
WANNAMAKER & WELLS, INC., 212 S.C. 506, 48 S.E.2D 447; GORDON V.
HOLLYWOOD-BEAUFORT PACKAGE CORP., 213 S.C. 438, 49 S.E.2D 718; HOLLAND
V. GEORGIA HARDWOOD LUMBER CO., 214 S.C. 195, 51 S.E.2D 744; YOUNGINER
V. JONES CONSTRUCTION CO., 215 S.C. 135, 54 S.E.2D 545; HORTON V.
BARUCH, 217 S.C. 48, 59 S.E.2D 545. 

FN9  CF. MORGAN, CHOICE OF LAW GOVERNING PROOF, 58 HARV. L. REV. 153;
3 BEALE, CONFLICT OF LAWS, SEC. 594.1; RESTATEMENT OF THE LAW, CONFLICT
OF LAWS, PP. 699-701. 

FN10  OUR CONCLUSION MAKES UNNECESSARY THE CONSIDERATION OF - AND WE
INITMATE NO VIEW UPON - THE CONSTITUTIONAL QUESTION WHETHER THE RIGHT
OF JURY TRIAL PROTECTED IN FEDERAL COURTS BY THE SEVENTH AMENDMENT
EMBRACES THE FACTUAL ISSUE OF STATUTORY IMMUNITY WHEN ASSERTED, AS
HERE, AS AN AFFIRMATIVE DEFENSE IN A COMMON-LAW NEGLIGENCE ACTION. 

FN11  THE COURTS OF APPEALS HAVE EXPRESSED VARYING VIEWS ABOUT THE
EFFECT OF ERIE R. CO. V. TOMPKINS ON JUDGE-JURY PROBLEMS IN DIVERSITY
CASES.  FEDERAL PRACTICE WAS FOLLOWED IN GORHAM V. MUTUAL BENEFIT
HEALTH & ACCIDENT ASSN., 114 F.2D 97 (C.A. 4TH CIR. 1940); DIEDERICH V.
AMERICAN NEWS CO., 128 F.2D 144 (C.A. 10TH CIR. 1942); MCSWEENEY V.
PRUDENTIAL INS. CO., 128 F.2D 660 (C.A. 4TH CIR. 1942); ETTELSON V.
METROPOLITAN LIFE INS. CO., 137 F.2D 62 (C.A. 3D CIR. 1943); ORDER OF
UNITED COMMERCIAL TRAVELERS V. DUNCAN, 221 F.2D 703 (C.A. 6TH CIR.
1955).  STATE PRACTICE WAS FOLLOWED IN COOPER V. BROWN, 126 F.2D 874
(C.A. 3D CIR. 1942); GUTIERREZ V. PUBLIC SERVICE INTERSTATE
TRANSPORTATION CO., 168 F.2D 678 (C.A.2D CIR. 1948); PRUDENTIAL INS.
CO. V. GLASGOW, 208 F.2D 908 (C.A.2D CIR. 1953); PIERCE CONSULTING
ENGINEERING CO. V. CITY OF BURLINGTON, 221 F.2D 607 (C.A.2D CIR. 1955);
ROWE V. PENNSYLVANIA GREYHOUND LINES, 231 F.2D 922 (C.A.2D CIR. 1956). 
FN12  THIS COURT HELD IN SIBBACH V. WILSON & CO., 312 U.S. 1, THAT
FEDERAL RULES OF CIVIL PROCEDURE 35 SHOULD PREVAIL OVER A CONTRARY
STATE RULE. 

FN13  "THE DEFENSE OF CONTRIBUTORY NEGLIGENCE OR OF ASSUMPTION OF
RISK SHALL, IN ALL CASES WHATSOEVER, BE A QUESTION OF FACT AND SHALL,
AT ALL TIMES, BE LEFT TO THE JURY."  SEC. 5, ART. 18. 

FN14  DIEDERICH V. AMERICAN NEWS CO., 128 F.2D 144, DECIDED AFTER
ERIE R. CO. V. TOMPKINS, HELD THAT AN ALMOST IDENTICAL PROVISION OF THE
OKLAHOMA CONSTITUTION WAS NOT BINDING ON A FEDERAL JUDGE IN A DIVERSITY
CASE. 

FN15  STONER V. NEW YORK LIFE INS. CO., 311 U.S. 464, IS NOT
CONTRARY.  IT WAS THERE HELD THAT THE FEDERAL COURT SHOULD FOLLOW THE
STATE RULE DEFINING THE EVIDENCE SUFFICIENT TO RAISE A JURY QUESTION
WHETHER THE STATE-CREATED RIGHT WAS ESTABLISHED.  BUT THE STATE RULE
DID NOT HAVE THE EFFECT OF NULLIFYING THE FUNCTION OF THE FEDERAL JUDGE
TO CONTROL A JURY SUBMISSION AS DID THE ARIZONA CONSTITUTIONAL
PROVISION WHICH WAS DENIED EFFECT IN HERRON.  THE SOUTH CAROLINA RULE
HERE INVOLVED AFFECTS THE JURY FUNCTION AS THE ARIZONA PROVISION
AFFECTED THE FUNCTION OF THE JUDGE:  THE RULE ENTIRELY DISPLACES THE
JURY WITHOUT REGARD TO THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT A
JURY FINDING OF IMMUNITY. 

MR. JUSTICE WHITTAKER, CONCURRING IN PART AND DISSENTING IN PART. 

IN 1936 THE SOUTH CAROLINA LEGISLATURE PASSED AN ACT KNOWN AS "THE
SOUTH CAROLINA WORKMEN'S COMPENSATION LAW."  S.C. CODE, 1952, TIT. 72. 
IT CREATED A NEW, COMPLETE, DETAILED AND EXCLUSIVE PLAN FOR THE
COMPENSATION BY AN "EMPLOYER" OF HIS "EMPLOYEE" (FN1) FOR BODILY
INJURIES SUSTAINED BY THE LATTER WHICH ARISE "BY ACCIDENT OUT OF AND IN
THE COURSE OF THE EMPLOYMENT," WHETHER WITH OR WITHOUT FAULT OF THE
EMPLOYER.  SEC. 72-14.  THE ACT ALSO PRESCRIBES THE MEASURE AND NATURE
OF THE REMEDY, (FN2) WHICH "SHALL EXCLUDE ALL OTHER RIGHTS AND REMEDIES
OF SUCH EMPLOYEE  ...  AGAINST HIS EMPLOYER, AT COMMON LAW OR
OTHERWISE, ON ACCOUNT OF SUCH INJURY" (SEC. 72-121), AND VESTS
EXCLUSIVE JURISDICTION IN THE SOUTH CAROLINA INDUSTRIAL COMMISSION OVER
ALL CLAIMS FALLING WITHIN THE PURVIEW OF THE ACT (SEC.  72-66), SUBJECT
TO REVIEW BY APPEAL TO THE STATE' COURTS UPON "ERRORS OF LAW."  SEC. 72
356. 

"EMPLOYER" (NOTE 1) BY PROVIDING, IN SUBSTANCE, THAT WHEN AN "'OWNER'"
OF PREMISES "UNDERTAKES TO PERFORM OR EXECUTE ANY WORK WHICH IS A PART
OF HIS TRADE, BUSINESS OR OCCUPATION AND CONTRACTS WITH ANY OTHER
PERSON (CALLED "SUBCONTRACTOR") FOR THE EXECUTION OR PERFORMANCE BY OR
UNDER SUCH SUBCONTRACTOR OF THE WHOLE OR ANY PART OF THE WORK
UNDERTAKEN BY SUCH OWNER, THE OWNER SHALL BE LIABLE TO PAY TO ANY
WORKMAN EMPLOYED IN THE WORK ANY COMPENSATION UNDER THIS TITLE WHICH HE
WOULD HAVE BEEN LIABLE TO PAY IF THE WORKMAN HAD BEEN IMMEDIATELY
EMPLOYED BY HIM."  EMPLOYEES OF SUCH SUBCONTRACTORS ARE COMMONLY CALLED
"STATUTORY EMPLOYEES" OF THE "OWNER." 

PETITIONER, A LINEMAN EMPLOYED BY A "SUBCONTRACTOR" WHO HAD CONTRACTED
TO BUILD MORE THAN 25 MILES OF NEW TRANSMISSION LINES AND TO CONVERT
FROM SINGLE-PHASE TO DOUBLE-PHASE MORE THAN 87 MILES OF EXISTING
TRANSMISSION LINES AND TO CONSTRUCT TWO SUBSTATIONS AND A BREAKER
STATION FOR THE "OWNER," WAS SEVERELY INJURED BY AN ACCIDENT WHICH
AROSE OUT OF AND IN THE COURSE OF THAT EMPLOYMENT.  SUBSEQUENT TO HIS
INJURY HE SOUGHT AND RECEIVED THE FULL BENEFITS PROVIDED BY THE SOUTH
CAROLINA WORKMEN'S COMPENSATION LAW. 

DIVERSITY EXISTING, PETITIONER THEN BROUGHT THIS COMMON-LAW SUIT IN A
FEDERAL DISTRICT COURT IN SOUTH CAROLINA AGAINST THE "OWNER,"  THE
RESPONDENT HERE, FOR DAMAGES FOR HIS BODILY INJURY, WHICH, HE ALLEGED,
HAD RESULTED FROM THE "OWNER'S" NEGLIGENCE.  THE RESPONDENT-"OWNER"
ANSWERED SETTING UP, AMONG OTHER DEFENSES, THE AFFIRMATIVE CLAIM THAT
PETITIONER'S INJURY AROSE BY ACCIDENT OUT OF AND IN THE COURSE OF HIS
EMPLOYMENT, AS A LINEMAN, BY THE SUBCONTRACTOR WHILE EXECUTING THE
CONTRACTED WORK "WHICH WAS A PART OF THE OWNER'S TRADE, BUSINESS OR
OCCUPATION."  IT URGED, IN CONSEQUENCE, THAT PETITIONER WAS ITS
"STATUTORY EMPLOYEE" AND THAT, THEREFORE, HIS EXCLUSIVE REMEDY WAS
UNDER THE SOUTH CAROLINA WORKMEN'S COMPENSATION LAW, AND THAT EXCLUSIVE
JURISDICTION OF THE SUBJECT MATTER OF HIS CLAIM WAS VESTED IN THE
STATE'S INDUSTRIAL COMMISSION AND, HENCE, THE FEDERAL COURT LACKED
JURISDICTION OVER THE SUBJECT MATTER OF THIS COMMON-LAW SUIT. 

AT THE TRIAL PETITIONER ADDUCED EVIDENCE UPON THE ISSUE OF NEGLIGENCE
AND RESTED HIS CASE IN CHIEF.  THEREUPON RESPONDENT, IN SUPPORT OF ITS
AFFIRMATIVE DEFENSE, ADDUCED EVIDENCE TENDING TO SHOW (1) THAT ITS
CHARTER, ISSUED UNDER THE RURAL ELECTRIC COOPERATIVE ACT OF SOUTH
CAROLINA (S.C. CODE, 1952, SEC. 12-1025), AUTHORIZED IT TO CONSTRUCT
AND OPERATE ELECTRIC GENERATING PLANTS AND TRANSMISSION LINES ESSENTIAL
TO ITS BUSINESS OF GENERATING AND DISTRIBUTING ELECTRICITY; (2) THAT IT
HAD (BEFORE THE SECOND WORLD WAR) CONSTRUCTED SUBSTATIONS WITH ITS OWN
DIRECT EMPLOYEES AND FACILITIES, ALTHOUGH THE SIX SUBSTATIONS WHICH IT
WAS OPERATING AT THE TIME PETITIONER WAS INJURED HAD BEEN BUILT BY
CONTRACTORS, AND THAT WHEN PETITIONER WAS INJURED IT DID NOT HAVE IN
ITS DIRECT EMPLOY ANY PERSON CAPABLE OF CONSTRUCTING A SUBSTATION;
(FN3) (3) THAT IT REGULARLY EMPLOYED A CREW OF 16 MEN - 8 LINEMEN AND 8
GROUNDMEN - TWO-THIRDS OF WHOSE TIME WAS SPENT IN CONSTRUCTING NEW
TRANSMISSION LINES AND EXTENSIONS, AND THAT SUCH WAS "A PART OF ITS
TRADE, BUSINESS AND OCCUPATION."   THIS EVIDENCE STOOD UNDISPUTED WHEN
RESPONDENT RESTED ITS CASE. 

AT THE CLOSE OF RESPONDENT'S EVIDENCE PETITIONER MOVED TO STRIKE
RESPONDENT'S AFFIRMATIVE JURISDICTIONAL DEFENSE, AND ALL EVIDENCE
ADDUCED IN SUPPORT OF IT. RESPONDENT MADE KNOWN TO THE COURT THAT WHEN
PETITIONER HAD RESTED IT WISHED TO MOVE FOR A DIRECTED VERDICT IN ITS
FAVOR.  THEREUPON THE COLLOQUY BETWEEN THE COURT AND COUNSEL, WHICH IS
SET FORTH IN SUBSTANCE IN MR. JUSTICE FRANKFURTER'S DISSENTING OPINION,
OCCURRED.  THE DISTRICT COURT SUSTAINED PETITIONER'S MOTION AND STRUCK
RESPONDENT'S AFFIRMATIVE JURISDICTIONAL DEFENSE AND ITS SUPPORTING
EVIDENCE FROM THE RECORD.  HIS DECLARED BASIS FOR THAT ACTION WAS THAT
THE PHRASE IN SEC. 72-111 "A PART OF HIS TRADE, BUSINESS OR OCCUPATION"
RELATED ONLY TO WORK BEING PERFORMED BY THE "OWNER" "FOR SOMEBODY
ELSE."  THEREAFTER, THE DISTRICT JUDGE HEARD ARGUMENTS UPON AND
OVERRULED RESPONDENT'S MOTION FOR A DIRECTED VERDICT, (FN4) AND
SUBMITTED THE CASE TO THE JURY WHICH RETURNED A VERDICT FOR
PETITIONER. 

ON APPEAL, THE COURT OF APPEALS FOUND THAT THE DISTRICT JUDGE'S
CONSTRUCTION OF SEC. 72-111 WAS NOT SUPPORTABLE UNDER CONTROLLING SOUTH
CAROLINA DECISIONS.  IT FURTHER FOUND THAT RESPONDENT'S EVIDENCE
DISCLOSED THAT RESPONDENT "WAS NOT ONLY IN THE BUSINESS OF SUPPLYING
ELECTRICITY TO RURAL COMMUNITIES, BUT WAS ALSO IN THE BUSINESS OF
CONSTRUCTING THE LINES AND SUBSTATIONS NECESSARY FOR THE DISTRIBUTION
OF THE PRODUCT," AND THAT THE CONTRACTED WORK WAS OF LIKE NATURE AND,
HENCE, WAS "A PART OF RESPONDENT'S TRADE, BUSINESS OR OCCUPATION,"
WITHIN THE MEANING OF SEC. 72-111, AND, THEREFORE, PETITIONER WAS
RESPONDENT'S STATUTORY EMPLOYEE, AND, HENCE, THE COURT WAS WITHOUT
JURISDICTION OVER THE SUBJECT MATTER OF THE CLAIM.  UPON THIS BASIS, IT
REVERSED THE JUDGMENT OF THE DISTRICT COURT WITH DIRECTIONS TO ENTER
JUDGMENT FOR RESPONDENT.  238 F.2D 346. 

THIS COURT NOW VACATES THE JUDGMENT OF THE COURT OF APPEALS AND
REMANDS THE CASE TO IT FOR DECISION OF QUESTIONS NOT REACHED IN ITS
PRIOR OPINION, WITH DIRECTIONS, IF NOT MADE UNNECESSARY BY ITS DECISION
OF SUCH QUESTIONS, TO REMAND THE CASE TO THE DISTRICT COURT FOR A NEW
TRIAL UPON SUCH ISSUES AS THE COURT OF APPEALS MAY DIRECT. 

I AGREE WITH AND JOIN IN THAT MUCH OF THE COURT'S OPINION.  I DO SO
BECAUSE - ALTHOUGH, AS FOUND BY THE COURT OF APPEALS, RESPONDENT'S
EVIDENCE WAS AMPLE, PRIMA FACIE, TO SUSTAIN ITS AFFIRMATIVE
JURISDICTIONAL DEFENSE - PETITIONER HAD NOT WAIVED HIS RIGHT TO ADDUCE
EVIDENCE IN REBUTTAL UPON THAT ISSUE, IN OTHER WORDS HAD NOT "RESTED,"
AT THE TIME THE DISTRICT JUDGE ERRONEOUSLY STRUCK RESPONDENT'S
JURISDICTIONAL DEFENSE AND SUPPORTING EVIDENCE FROM THE RECORD.  IN
THESE CIRCUMSTANCES, I BELIEVE THAT THE JUDGMENT OF THE COURT OF
APPEALS, INSOFAR AS IT DIRECTED THE DISTRICT COURT TO ENTER JUDGMENT
FOR RESPONDENT, WOULD DEPRIVE PETITIONER OF HIS LEGAL RIGHT, WHICH HE
HAD NOT WAIVED, TO ADDUCE EVIDENCE WHICH HE CLAIMS TO HAVE AND DESIRES
TO OFFER IN REBUTTAL OF RESPONDENT'S PRIMA FACIE ESTABLISHED
JURISDICTIONAL DEFENSE.  THE PROCEDURAL SITUATION THEN EXISTING WAS NOT
LEGALLY DIFFERENT FROM A CASE IN WHICH A DEFENDANT, WITHOUT RESTING,
MOVES, AT THE CLOSE OF THE PLAINTIFF'S CASE, FOR A DIRECTED VERDICT IN
ITS FAVOR WHICH THE COURT ERRONEOUSLY SUSTAINS, AND, ON APPEAL, IS
REVERSED FOR THAT ERROR.  IT COULD NOT FAIRLY BE CONTENDED, IN THOSE
CIRCUMSTANCES, THAT THE APPELLATE COURT MIGHT PROPERLY DIRECT THE TRIAL
COURT TO ENTER JUDGMENT FOR THE PLAINTIFF AND THUS DEPRIVE THE
DEFENDANT, WHO HAD NOT RESTED, OF HIS RIGHT TO OFFER EVIDENCE IN
DEFENSE OF PLAINTIFF'S CASE.  RULE 50, FED. RULES CIV.  PROC. IT IS
URGED BY RESPONDENT THAT, FROM THE COLLOQUY BETWEEN THE DISTRICT JUDGE
AND COUNSEL, WHICH, AS STATED, IS SET FORTH IN SUBSTANCE IN MR. JUSTICE
FRANKFURTER'S DISSENTING OPINION, IT APPEARS THAT PETITIONER HAD
"RESTED," AND THUS HAD WAIVED HIS RIGHT TO ADDUCE REBUTTAL EVIDENCE
UPON THE ISSUE OF RESPONDENT'S JURISDICTIONAL DEFENSE, BEFORE THE
DISTRICT JUDGE SUSTAINED HIS MOTION TO STRIKE THAT DEFENSE AND THE
SUPPORTING EVIDENCE.  BUT MY ANALYSIS OF THE RECORD CONVINCES ME THAT
PETITIONER, IN FACT, NEVER DID SO.  FOR THIS REASON I BELIEVE THAT SO
MUCH OF THE JUDGMENT OF THE COURT OF APPEALS AS DIRECTED THE DISTRICT
COURT TO ENTER JUDGMENT FOR RESPONDENT DEPRIVES PETITIONER OF HIS RIGHT
TO ADDUCE REBUTTAL EVIDENCE UPON THE ISSUE OF RESPONDENT'S PRIMA FACIE
ESTABLISHED JURISDICTIONAL DEFENSE, AND, THEREFORE, CANNOT STAND. 

BUT THE COURT'S OPINION PROCEEDS TO DISCUSS AND DETERMINE THE
QUESTION WHETHER, UPON REMAND TO THE DISTRICT COURT, IF SUCH BECOMES
NECESSARY, THE JURISDICTIONAL ISSUE IS TO BE DETERMINED BY THE JUDGE OR
BY THE JURY - A QUESTION WHICH, TO MY MIND, IS PREMATURE, NOT NOW
PROPERLY BEFORE US, AND IS ONE WE NEED NOT AND SHOULD NOT NOW REACH FOR
OR DECIDE.  THE COURT, ALTHOUGH PREMISING ITS CONCLUSION "UPON THE
ASSUMPTION THAT THE OUTCOME OF THE LITIGATION MAY BE SUBSTANTIALLY
AFFECTED BY WHETHER THE ISSUE OF IMMUNITY (FN5) IS DECIDED BY A JUDGE
OR A JURY," HOLDS THAT THE ISSUE IS TO BE DETERMINED BY A JURY - NOT BY
THE JUDGE.  I CANNOT AGREE TO THIS CONCLUSION FOR THE FOLLOWING
REASONS. 

AS EARLIER SHOWN, THE SOUTH CAROLINA WORKMEN'S COMPENSATION LAW
CREATES A NEW, COMPLETE, DETAILED AND EXCLUSIVE BUNDLE OF RIGHTS
RESPECTING THE COMPENSATION BY AN "EMPLOYER" OF HIS "EMPLOYEE" FOR
BODILY INJURIES SUSTAINED BY THE LATTER WHICH ARISE BY ACCIDENT OUT OF
AND IN THE COURSE OF THE EMPLOYMENT, REGARDLESS OF FAULT, AND VESTS
EXCLUSIVE JURISDICTION IN THE STATE'S INDUSTRIAL COMMISSION OVER ALL
SUCH CLAIMS, SUBJECT TO REVIEW BY APPEAL IN THE SOUTH CAROLINA COURTS
ONLY UPON "ERRORS OF LAW."  CONSONANT WITH SEC. 72-66, WHICH VESTS
EXCLUSIVE JURISDICTION OVER SUCH CLAIMS IN THE COMMISSION, AND WITH
SEC. 72-356, WHICH ALLOWS JUDICIAL REVIEW ONLY UPON "ERRORS OF LAW,"
THE SUPREME COURT OF THE STATE HAS UNIFORMLY HELD THAT THE QUESTION, IN
CASES LIKE THE PRESENT, WHETHER JURISDICTION OVER SUCH CLAIMS IS VESTED
IN THE INDUSTRIAL COMMISSION OR IN THE COURTS PRESENTS A QUESTION OF
LAW FOR DETERMINATION BY THE COURT, NOT A JURY.  IN ADAMS V. DAVISON
PAXON CO., 230 S.C. 532, 96 S.E.2D 566 (1957), WHICH APPEARS TO BE THE
LAST CASE BY THE SUPREME COURT OF THE STATE ON THE QUESTION, PLAINTIFF,
AN EMPLOYEE OF A CONCESSIONAIRE OPERATING THE MILLINERY DEPARTMENT IN
DEFENDANT'S STORE, WAS INJURED, SHE CLAIMED BY NEGLIGENCE, WHILE USING
A STAIRWAY IN THE STORE.  SHE BROUGHT A COMMON-LAW SUIT FOR DAMAGES
AGAINST THE OWNER OF THE STORE.  THE LATTER DEFENDED UPON THE GROUND,
AMONG OTHERS, THAT THE OPERATION OF THE MILLINERY DEPARTMENT, THOUGH
UNDER A CONTRACT WITH THE CONCESSIONAIRE, PLAINTIFF'S EMPLOYER, WAS "A
PART OF ITS TRADE, BUSINESS OR OCCUPATION," THAT THE PLAINTIFF WAS
THEREFORE ITS STATUTORY EMPLOYEE UNDER SEC. 72-111 AND EXCLUSIVE
JURISDICTION OVER THE SUBJECT MATTER OF PLAINTIFF'S CLAIM WAS VESTED IN
THE INDUSTRIAL COMMISSION, AND THAT THE COURT WAS WITHOUT JURISDICTION
OVER THE SUBJECT MATTER IN HER COMMON-LAW SUIT.  IT SEEMS THAT THE
TRIAL COURT SUBMITTED THIS ISSUE, ALONG WITH OTHERS, TO THE JURY WHICH
RETURNED A VERDICT FOR PLAINTIFF.  ON APPEAL THE SUPREME COURT OF THE
STATE REVERSED, SAYING: 

"IT HAS BEEN CONSISTENTLY HELD THAT WHETHER THE CLAIM OF AN INJURED
WORKMAN IS WITHIN THE JURISDICTION OF THE INDUSTRIAL COMMISSION IS A
MATTER OF LAW FOR DECISION BY THE COURT, WHICH INCLUDES THE FINDING OF
THE FACTS WHICH RELATE TO JURISDICTION.  KNIGHT V. SHEPHERD, 191 S.C.
452, 4 S.E.(2D) 906; TEDARS V. SAVANNAH RIVER VENEER COMPANY, 202 S.C.
363, 25 S.E.(2D) 235, 147 A.L.R. 914; MCDOWELL V. STILLEY PLYWOOD CO.,
210 S.C. 173, 41 S.E.(2D) 872; MILES V. WEST VIRGINIA PULP & PAPER CO.,
212 S.C. 424, 48 S.E.(2D) 26; WATSON V. WANNAMAKER & WELLS, INC., 212
S.C. 506, 48 S.E.(2D) 447; GORDON V. HOLLYWOOD-BEAUFORT PACKAGE CORP.,
213 S.C.  438, 49 S.E.(2D) 718; HOLLAND V. GEORGIA HARDWOOD LBR.  CO.,
214 S.C. 195, 51 S.E.(2D) 744; YOUNGINER V. J.A. JONES CONST. CO., 215
S.C. 135, 54 S.E.(2D) 545; HORTON V. BARUCH, 217 S.C. 48, 59 S.E.(2D)
545.    "THUS THE TRIAL COURT SHOULD HAVE IN THIS CASE RESOLVED THE
CONFLICTS IN THE EVIDENCE AND AND DETERMINED THE FACT OF WHETHER
EMPORIUM (THE CONCESSIONAIRE) WAS PERFORMING A PART OF THE 'TRADE,
BUSINESS OR OCCUPATION' OF THE DEPARTMENT STORE-APPELLANT AND,
THEREFORE, WHETHER RESPONDENT'S REMEDY IS EXCLUSIVELY UNDER THE
WORKMEN'S COMPENSATION LAW."  230 S.C., AT 543, 96 S.E.2D, AT 571. 

IT THUS SEEMS TO BE SETTLED UNDER THE SOUTH CAROLINA WORKMEN'S
COMPENSATION LAW, AND THE DECISIONS OF THE HIGHEST COURT OF THAT STATE
CONSTRUING IT, THAT THE QUESTION WHETHER EXCLUSIVE JURISDICTION, IN
CASES LIKE THIS, IS VESTED IN ITS INDUSTRIAL COMMISSION OR IN ITS
COURTS OF GENERAL JURISDICTION IS ONE FOR DECISION BY THE COURT, NOT BY
A JURY.  THE FEDERAL DISTRICT COURT, IN THIS DIVERSITY CASE, IS BOUND
TO FOLLOW THE SUBSTANTIVE SOUTH CAROLINA LAW THAT WOULD BE APPLIED IF
THE TRIAL WERE TO BE HELD IN A SOUTH CAROLINA COURT, IN WHICH STATE THE
FEDERAL DISTRICT COURT SITS.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64.  A
FEDERAL DISTRICT COURT SITTING IN SOUTH CAROLINA MAY NOT LEGALLY REACH
A SUBSTANTIALLY DIFFERENT RESULT THAN WOULD HAVE BEEN REACHED UPON A
TRIAL OF THE SAME CASE "IN A STATE COURT A BLOCK AWAY."  GUARANTY TRUST
CO. V. YORK, 326 U.S. 99, 109. 

THE COURT'S OPINION STATES:  "CONCEDEDLY THE NATURE OF THE TRIBUNAL
WHICH TRIES MAY BE IMPORTANT IN THE ENFORCEMENT OF THE PARCEL OF RIGHTS
MAKING UP A CAUSE OF ACTION OR DEFENSE, AND BEAR SIGNIFICANTLY UPON
ACHIEVEMENT OF UNIFORM ENFORCEMENT OF THE RIGHT.  IT MAY WELL BE THAT
IN THE INSTANT PERSONAL-INJURY CASE THE OUTCOME WOULD BE SUBSTANTIALLY
AFFECTED BY WHETHER THE ISSUE OF IMMUNITY IS DECIDED BY A JUDGE OR A
JURY."  AND THE COURT PREMISES ITS CONCLUSION "UPON THE ASSUMPTION THAT
THE OUTCOME OF THE LITIGATION MAY BE SUBSTANTIALLY AFFECTED BY WHETHER
THE ISSUE OF IMMUNITY IS DECIDED BY A JUDGE OR A JURY."  UPON THAT
PREMISE, THE COURT'S CONCLUSION, TO MY MIND, IS CONTRARY TO OUR CASES. 
"HERE AS IN GUARANTY TRUST CO. V. YORK, SUPRA WE ARE DEALING WITH A
RIGHT TO RECOVER DERIVED NOT FROM THE UNITED STATES BUT FROM ONE OF THE
STATES.  WHEN, BECAUSE THE PLAINTIFF HAPPENS TO BE A NON-RESIDENT, SUCH
A RIGHT IS ENFORCEABLE IN A FEDERAL AS WELL AS IN A STATE COURT, THE
FORMS AND MODE OF ENFORCING THE RIGHT MAY AT TIMES, NATURALLY ENOUGH,
VARY BECAUSE THE TWO JUDICIAL SYSTEMS ARE NOT IDENTIC.  BUT SINCE A
FEDERAL COURT ADJUDICATING A STATE-CREATED RIGHT SOLELY BECAUSE OF THE
DIVERSITY OF CITIZENSHIP OF THE PARTIES IS FOR THAT PURPOSE, IN EFFECT,
ONLY ANOTHER COURT OF THE STATE, IT CANNOT AFFORD RECOVERY IF THE RIGHT
TO RECOVER IS MADE UNAVAILABLE BY THE STATE NOR CAN IT SUBSTANTIALLY
AFFECT THE ENFORCEMENT OF THE RIGHT AS GIVEN BY THE STATE."  GUARANTY
TRUST CO. V. YORK, SUPRA, AT 108-109. 

THE WORDS "SUBSTANTIVE" AND "PROCEDURAL" ARE MERE CONCEPTUAL LABELS
AND IN NO SENSE TALISMANIC.  TO CALL A LEGAL QUESTION BY ONE OR THE
OTHER OF THOSE TERMS DOES NOT RESOLVE THE QUESTION OTHERWISE THAN AS A
PURELY AUTHORITARIAN PERFORMANCE.  WHEN A QUESTION THOUGH DENOMINATED
"PROCEDURAL" IS NEVERTHELESS SO "SUBSTANTIVE" AS MATERIALLY TO AFFECT
THE RESULT OF A TRIAL, FEDERAL COURTS, IN ENFORCING STATE-CREATED
RIGHTS, ARE NOT FREE TO DISREGARD IT, ON THE GROUND THAT IT IS
"PROCEDURAL," FOR SUCH WOULD BE TO ALLOW, UPON MERE NOMENCLATURE, A
DIFFERENT RESULT IN A STATE COURT FROM THAT ALLOWABLE IN A FEDERAL
COURT THOUGH BOTH ARE, IN EFFECT, COURTS OF THE STATE AND "SITTING SIDE
BY SIDE."  KLAXON CO. V. STENTOR CO., 313 U.S. 487, 496.  "THE FEDERAL
COURT ENFORCES THE STATE-CREATED RIGHT BY RULES OF PROCEDURE WHICH IT
HAS ACQUIRED FROM THE FEDERAL GOVERNMENT AND WHICH THEREFORE ARE NOT
IDENTICAL WITH THOSE OF THE STATE COURTS.  YET, IN SPITE OF THAT
DIFFERENCE IN PROCEDURE, THE FEDERAL COURT ENFORCING A STATE-CREATED
RIGHT IN A DIVERSITY CASE IS, AS WE SAID IN GUARANTY TRUST CO. V. YORK,
326 U.S. 99, 108, IN SUBSTANCE 'ONLY ANOTHER COURT OF THE STATE.'  THE
FEDERAL COURT THEREFORE MAY NOT 'SUBSTANTIALLY AFFECT THE ENFORCEMENT
OF THE RIGHT AS GIVEN BY THE STATE.'  ID., 109."  BERNHARDT V.
POLYGRAHIC CO., 350 U.S. 198, 202-203.  "WHERE LOCAL LAW QUALIFIES OR
ABRIDGES THE RIGHT, THE FEDERAL COURT MUST FOLLOW SUIT.  OTHERWISE
THERE IS A DIFFERENT MEASURE OF THE CAUSE OF ACTION IN ONE COURT THAN
IN THE OTHER, AND THE PRINCIPLE OF ERIE R. CO. V. TOMPKINS IS
TRANSGRESSED."  RAGAN V. MERCHANTS TRANSFER CO., 337 U.S. 530, 533. 
"IT IS THEREFORE IMMATERIAL WHETHER STATE-CREATED RIGHTS ARE
CHARACTERIZED EITHER AS 'SUBSTANTIVE' OR 'PROCEDURAL' IN STATE COURT
OPINIONS IN ANY USE OF THOSE TERMS UNRELATED TO THE SPECIFIC ISSUE
BEFORE US.  ERIE R. CO. V. TOMPKINS WAS NOT AN ENDEAVOR TO FORMULATE
SCIENTIFIC LEGAL TERMINOLOGY.  IT EXPRESSED A POLICY THAT TOUCHES
VITALLY THE PROPER DISTRIBUTION OF JUDICIAL POWER BETWEEN STATE AND
FEDERAL COURTS.  IN ESSENCE, THE INTENT OF THAT DECISION WAS TO INSURE
THAT, IN ALL CASES WHERE A FEDERAL COURT IS EXERCISING JURISDICTION
SOLELY BECAUSE OF THE DIVERSITY OF CITIZENSHIP OF THE PARTIES, THE
OUTCOME OF THE LITIGATION IN THE FEDERAL COURT SHOULD BE SUBSTANTIALLY
THE SAME, SO FAR AS LEGAL RULES DETERMINE THE OUTCOME OF A LITIGATION,
AS IT WOULD BE IF TRIED IN A STATE COURT.  THE NUB OF THE POLICY THAT
UNDERLIES ERIE R. CO. V. TOMPKINS IS THAT FOR THE SAME TRANSACTION THE
ACCIDENT OF A SUIT BY A NON-RESIDENT LITIGANT IN A FEDERAL COURT
INSTEAD OF IN A STATE COURT A BLOCK AWAY SHOULD NOT LEAD TO A
SUBSTANTIALLY DIFFERENT RESULT.  AND SO, PUTTING TO ONE SIDE
ABSTRACTIONS REGARDING 'SUBSTANCE' AND 'PROCEDURE,' WE HAVE HELD THAT
IN DIVERSITY CASES THE FEDERAL COURTS MUST FOLLOW THE LAW OF THE STATE
...  ."  GUARANTY TRUST CO. V. YORK, SUPRA, AT 109. 

INASMUCH AS THE LAW OF SOUTH CAROLINA, AS CONSTRUED BY ITS HIGHEST
COURT, REQUIRES ITS COURTS - NOT JURIES - TO DETERMINE WHETHER
JURISDICTION OVER THE SUBJECT MATTER OF CASES LIKE THIS IS VESTED IN
ITS INDUSTRIAL COMMISSION, AND INASMUCH AS THE COURT'S OPINION CONCEDES
"THAT IN THE INSTANT PERSONAL-INJURY CASE THE OUTCOME WOULD BE
SUBSTANTIALLY AFFECTED BY WHETHER THE ISSUE OF IMMUNITY IS DECIDED BY A
JUDGE OR A JURY," IF FOLLOWS THAT IN THIS DIVERSITY CASE THE
JURISDICTIONAL ISSUE MUST BE DETERMINED BY THE JUDGE - NOT BY THE
JURY.  INSOFAR AS THE COURT HOLDS THAT THE QUESTION OF JURISDICTION
SHOULD BE DETERMINED BY THE JURY, I THINK THE COURT DEPARTS FROM ITS
PAST DECISIONS.  I THEREFORE RESPECTFULLY DISSENT FROM PART II OF THE
OPINION OF THE COURT. 

FN1  THE TERMS "EMPLOYEE" AND "EMPLOYER" ARE CONVENTIONALLY DEFINED
IN SECS. 72-11 AND 72-12. 

FN2  S.C. CODE, 1952, C. 4, SECS. 72-151 TO 72-165. 

FN3  AS I SEE IT, THE EVIDENCE REFERRED TO IN "(1)" IS ONLY
COLLATERALLY MATERIAL, AND THAT REFERRED TO IN "(2)" IS WHOLLY
IMMATERIAL, TO THE ISSUE OF WHETHER PETITIONER WAS RESPONDENT'S
STATUTORY EMPLOYEE AT THE TIME OF THE INJURY, BECAUSE THAT QUESTION,
UNDER THE SOUTH CAROLINA WORKMEN'S COMPENSATION LAW, DOES NOT DEPEND
UPON WHAT PARTICULAR TRADE, BUSINESS OR OCCUPATION THE "OWNER" LAWFULLY
MIGHT PURSUE, OR LAWFULLY MIGHT HAVE PURSUED IN THE PAST.  RATHER, IT
DEPENDS UPON WHAT WORK HE IS ENGAGED IN AT THE TIME OF THE INJURY -
I.E., WHETHER THE CONTRACTED WORK "IS A PART OF THE OWNER'S TRADE,
BUSINESS OR OCCUPATION."  THE STATUTE THUS SPEAKS IN THE PRESENT TENSE,
AND, HENCE, THE RELEVANT INQUIRY HERE IS LIMITED TO WHETHER THE WORK
BEING DONE BY PETITIONER FOR THE "OWNER" AT THE TIME OF THE INJURY WAS
A PART OF THE TRADE, BUSINESS, OR OCCUPATION OF THE "OWNER" AT THAT
TIME. 

FN4  THE COURT'S OPINION AND MR. JUSTICE FRANKFURTER'S DISSENT
COMMENTS UPON THE FACT THAT THE DISTRICT JUDGE STATED TO RESPONDENT'S
COUNSEL THAT HE WOULD "ALLOW" HIM TO INCLUDE IN HIS MOTION FOR A
DIRECTED VERDICT THE AFFIRMATIVE JURISDICTIONAL DEFENSE WHICH HAD JUST
BEEN STRICKEN.  TO MY MIND THIS IS WHOLLY WITHOUT SIGNIFICANCE, FOR THE
DISTRICT JUDGE WAS WITHOUT POWER TO CONTROL WHAT POINTS AND ARGUMENTS
RESPONDENT'S COUNSEL MIGHT URGE IN SUPPORT OF HIS MOTION FOR A DIRECTED
VERDICT. 

FN5  HERE, AS AT OTHER PLACES IN ITS OPINION, THE COURT TREATS WITH
THE SOUTH CAROLINA WORKMEN'S COMPENSATION LAW AS AN "IMMUNITY" OF THE
EMPLOYER FROM LIABILITY.  TO ME, THE QUESTION IS NOT ONE OF IMMUNITY. 
RATHER, IT IS WHICH OF TWO TRIBUNALS - THE INDUSTRIAL COMMISSION OR THE
COURT OF GENERAL JURISDICTION - HAS JURISDICTION, TO THE EXCLUSION OF
THE OTHER, OVER THE SUBJECT MATTER OF THE ACTION, AND, HENCE, THE POWER
TO AWARD RELIEF UPON IT. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THIS IS A SUIT FOR COMMON-LAW NEGLIGENCE, BROUGHT IN A UNITED STATES
DISTRICT COURT IN SOUTH CAROLINA BECAUSE OF DIVERSITY OF CITIZENSHIP,
28 U.S.C. SEC. 1332.  RESPONDENT IS A COOPERATIVE, ORGANIZED AND
OPERATING UNDER THE SOUTH CAROLINA RURAL ELECTRIC COOPERATIVE ACT, S.C.
CODE, 1952, SEC. 12-1001 ET SEQ., ENGAGED IN DISTRIBUTING ELECTRIC
POWER TO ITS MEMBERS, AND EXTENDING THE AVAILABILITY OF POWER TO NEW
USERS, IN RURAL AREAS OF THE STATE.  INCIDENT TO THE EXPANSION OF ITS
FACILITIES AND SERVICES, IT HAD MADE A CONTRACT WITH R.H. BOULIGNY,
INC., WHEREBY THE LATTER WAS TO CONSTRUCT 24.19 MILES OF NEW POWER
LINES, TO REHABILITATE AND CONVERT TO HIGHER CAPACITY 87.69 MILES OF
EXISTING LINES, AND TO CONSTRUCT TWO SUBSTATIONS AND A BREAKER
STATION.  IN THE EXECUTION OF THIS CONTRACT, PETITIONER, A CITIZEN OF
NORTH CAROLINA, AND A LINEMAN FOR BOULIGNY, WAS SERIOUSLY BURNED WHEN
HE ATTEMPTED TO MAKE A CONNECTION BETWEEN THE EQUIPMENT IN ONE OF THE
NEW SUBSTATIONS AND AN OUTSIDE LINE THROUGH WHICH, BY A MISTAKE ON THE
PART OF ANOTHER OF BOULIGNY'S EMPLOYEES, CURRENT WAS RUNNING. 
PETITIONER FILED A CLAIM AGAINST BOULIGNY PURSUANT TO THE SOUTH
CAROLINA WORKMEN'S COMPENSATION LAW, S.C. CODE, 1952, SEC. 72-1 ET
SEQ., UNDER WHICH BOTH BOULIGNY AND RESPONDENT OPERATED, AND RECOVERED
THE FULL BENEFITS UNDER THE LAW.  HE THEN BROUGHT THIS SUIT. 

RESPONDENT DEFENDED ON THE GROUND, AMONG OTHERS, THAT, SINCE
PETITIONER WAS INJURED IN THE EXECUTION OF HIS TRUE EMPLOYER'S
(BOULIGNY'S) CONTRACT WITH RESPONDENT TO PERFORM A PART OF ITS "TRADE,
BUSINESS OR OCCUPATION," RESPONDENT WAS PETITIONER'S "STATUTORY
EMPLOYER" AND THEREFORE LIABLE TO PETITIONER UNDER SEC. 72-111 OF THE
STATE'S WORKMEN'S COMPENSATION LAW.  (FN1)  IT WOULD FOLLOW FROM THIS
THAT PETITIONER, BY VIRTUE OF HIS ELECTION TO PROCEED AGAINST BOULIGNY,
WAS BARRED FROM PROCEEDING AGAINST RESPONDENT, EITHER UNDER THE STATUTE
OR AT COMMON LAW (SECS. 72-121, 72-123).  (FN2)  AFTER ALL THE EVIDENCE
WAS IN, THE COURT GRANTED PETITIONER'S MOTION TO STRIKE THE DEFENSE, ON
THE GROUND THAT AN ACTIVITY COULD NOT BE A PART OF A FIRM'S "TRADE,
BUSINESS OR OCCUPATION" UNLESS IT WAS BEING PERFORMED "FOR SOMEBODY
ELSE."  THE COURT ALSO DENIED RESPONDENT'S MOTION FOR A DIRECTED
VERDICT AND SUBMITTED THE CASE TO THE JURY, WHICH RETURNED A VERDICT
FOR PETITIONER IN THE AMOUNT OF $126,786.80. 

ON APPEAL, THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
FOUND THE DISTRICT COURT'S CONSTRUCTION OF SEC. 72-111 UNSUPPORTABLE
UNDER CONTROLLING SOUTH CAROLINA DECISIONS.  (FN3)  IN CONCLUDING THAT
RESPONDENT HAD SUSTAINED ITS DEFENSE, THE APPELLATE COURT CITED THE
FOLLOWING EVIDENCE ELICITED AT TRIAL.  RESPONDENT EMPLOYED A SIXTEEN
MAN "OUTSIDE CREW," TWO-THIRDS OF WHOSE TIME WAS SPENT IN SUCH
CONSTRUCTION WORK AS BUILDING NEW POWER LINES AND EXTENSIONS; SINCE
WORLD WAR II THE DEMAND FOR ELECTRICAL SERVICE HAD BEEN SO GREAT THAT
INDEPENDENT CONTRACTORS HAD TO BE EMPLOYED TO DO MUCH OF THE NECESSARY
CONSTRUCTION WORK.  ALL OF RESPONDENT'S CONSTRUCTION WORK, REGARDLESS
OF WHO WAS ACTUALLY PERFORMING IT, WAS DONE UNDER THE SUPERVISION OF AN
ENGINEERING FIRM WITH WHICH RESPONDENT HAS AN ENGINEERING SERVICE
CONTRACT.  TESTIMONY AS TO THE CONSTRUCTION OF SUBSTATIONS WAS NOT
ALTOGETHER CONSISTENT; HOWEVER, STATED MOST FAVORABLY TO PETITIONER -
AND THAT IS THE LIGHT IN WHICH THE COURT OF APPEALS CONSIDERED IT -
THAT EVIDENCE WAS TO THE EFFECT THAT RESPONDENT HAD WITH ITS OWN
FACILITIES CONSTRUCTED THREE SUBSTATIONS, ALTHOUGH IT HAD BUILT NONE OF
THE SIX IT WAS OPERATING AT THE TIME PETITIONER WAS INJURED, NOR WAS
RESPONDENT AT THAT TIME EMPLOYING PERSONNEL CAPABLE OF CONSTRUCTING
SUBSTATIONS.  THE CONSTRUCTION WORK IN CONNECTION WITH WHICH PETITIONER
WAS INJURED WAS CLEARLY AMONG THE FUNCTIONS RESPONDENT WAS EMPOWERED TO
PERFORM BY THE STATUTE UNDER WHICH IT WAS ORGANIZED; MOREOVER, THIS
CONSTRUCTION WAS NECESSARY TO THE DISCHARGE OF RESPONDENT'S DUTY TO
SERVE THE AREA IN WHICH IT OPERATED.  FINALLY, RESPONDENT WAS THE "MAIN
ACTOR" IN THIS PARTICULAR CONSTRUCTION PROJECT:  IT SECURED THE
NECESSARY FINANCING; ITS CONSULTING ENGINEER PREPARED THE PLANS
(APPROVED BY RESPONDENT) AND SUPERVISED THE CONSTRUCTION; IT PURCHASED
THE MATERIALS OF WHICH THE SUBSTATIONS WERE CONSTRUCTED; IT HAD THE
RESPONSIBILITY OF DE-ENERGIZING AND RE-ENERGIZING EXISTING LINES THAT
WERE INVOLVED IN THE WORK.  FROM THIS EVIDENCE THE COURT OF APPEALS WAS
SATISFIED THAT "THERE CAN BE NO DOUBT THAT BLUE RIDGE WAS NOT ONLY IN
THE BUSINESS OF SUPPLYING ELECTRICITY TO RURAL COMMUNITIES, BUT ALSO IN
THE BUSINESS OF CONSTRUCTING THE LINES AND SUBSTATIONS NECESSARY FOR
THE DISTRIBUTION OF THE PRODUCT," 238 F.2D 346, 351.  THE COURT OF
APPEALS, HAVING CONCLUDED THAT RESPONDENT'S DEFENSE SHOULD HAVE BEEN
SUSTAINED, DIRECTED THE DISTRICT COURT TO ENTER JUDGMENT FOR THE
RESPONDENT.  THE DISTRICT COURT HAD DECIDED THE QUESTION OF WHETHER OR
NOT RESPONDENT WAS A STATUTORY EMPLOYER WITHOUT SUBMITTING IT TO THE
JURY.  IT IS NOT ALTOGETHER CLEAR WHETHER IT DID SO BECAUSE IT THOUGHT
IT ESSENTIALLY A NONJURY ISSUE, AS IT IS IN THE SOUTH CAROLINA COURTS
UNDER ADAMS V. DAVISON-PAXON CO., 230 S.C. 532, 96 S.E.2D 566, OR
BECAUSE THERE WAS NO CONTROVERTED QUESTION OF FACT TO SUBMIT TO THE
JURY.    THE CONSTRUCTION OF THE STATE LAW BY THE COURT OF APPEALS IS
CLEARLY SUPPORTED BY THE DECISIONS OF THE SUPREME COURT OF SOUTH
CAROLINA, AND SO WE NEED NOT REST ON THE USUAL RESPECT TO BE ACCORDED
TO A READING OF A LOCAL STATUTE BY A FEDERAL COURT OF APPEALS.  ESTATE
OF SPIEGEL V. COMMISSIONER, 335 U.S. 701, 708.  IT IS CLEAR FROM THE
STATE CASES THAT A DETERMINATION AS TO WHETHER A DEFENDANT IS AN
"EMPLOYER" FOR PURPOSES OF SEC.  72-111 WILL DEPEND UPON THE ENTIRE
CIRCUMSTANCES OF THE RELATIONSHIP BETWEEN SUCH DEFENDANT AND THE WORK
BEING DONE ON ITS BEHALF; NO SINGLE FACTOR IS DETERMINATIVE.  BOTH THE
APPROACH OF THE COURT OF APPEALS AND THE CONCLUSIONS THAT IT REACHED
FROM THE EVIDENCE IN THIS CASE ARE ENTIRELY CONSISTENT WITH PRIOR
DECLARATIONS OF SOUTH CAROLINA LAW BY THE HIGHEST COURT OF THAT STATE. 
(FN4) 

IN HOLDING RESPONDENT A STATUTORY EMPLOYER, THE COURT OF APPEALS WAS
GIVING THE SOUTH CAROLINA WORKMEN'S COMPENSATION LAW THE LIBERAL
CONSTRUCTION CALLED FOR BY THE SUPREME COURT OF THAT STATE.  IN YEOMANS
V. ANHEUSER-BUSCH, INC., 198 S.C. 65, 72, 15 S.E.2D 833, 835, THAT
COURT SAID: 

"THE BASIC PURPOSE OF THE COMPENSATION ACT IS THE INCLUSION OF
EMPLOYERS AND EMPLOYEES, AND NOT THEIR EXCLUSION; AND WE ADD THAT
DOUBTS OF JURISDICTION MUST BE RESOLVED IN FAVOR OF INCLUSION RATHER
THAN EXCLUSION." 

IT WOULD BE SHORT-SIGHTED TO OVERLOOK THE FACT THAT EXCLUSION OF AN
EMPLOYER IN A SPECIFIC CASE SUCH AS THIS ONE MIGHT WELL HAVE THE
CONSEQUENCE OF DENYING ANY RECOVERY AT ALL TO OTHER EMPLOYEES VIS-A-VIS
THIS EMPLOYER AND OTHERS SIMILARLY SITUATED.  THE COURT OF APPEALS,
THROUGH THE EXPERIENCED JUDGE SOPER, RECOGNIZED THE SHORT-SIGHTED
ILLIBERALITY OF YIELDING TO THE TEMPTATION OF ALLOWING A SINGLE
RECOVERY FOR NEGLIGENCE TO STAND AND DO VIOLENCE TO THE CONSISTENT AND
LEGISLATIVELY INTENDED INTERPRETATION OF THE STATUTE IN BERRY V.
ATLANTIC GREYHOUND LINES, 114 F.2D 255, 257: 

"IT MAY WELL BE, AND POSSIBLY THIS IS TRUE IN THE INSTANT CASE, THAT
SOMETIMES A RECOVERY MIGHT BE HAD IN A COMMON LAW ACTION FOR AN AMOUNT
MUCH LARGER THAN THE AMOUNT WHICH WOULD BE RECEIVED UNDER A
COMPENSATION ACT.  THIS, THOUGH, IS MORE THAN BALANCED BY THE MANY
ADVANTAGES ACCORDED TO AN INJURED EMPLOYEE IN A PROCEEDING UNDER A
COMPENSATION ACT WHICH WOULD NOT BE FOUND IN A COMMON LAW ACTION." 

WHEN, AFTER THE EVIDENCE WAS IN, PETITIONER MOVED TO STRIKE
RESPONDENT'S DEFENSE BASED ON SEC. 72-111, THE FOLLOWING COLLOQUY
ENSUED: 

"THE COURT:  IN THE EVENT I OVERRULE YOUR MOTION, DO YOU CONTEMPLATE
PUTTING UP ANY TESTIMONY IN REPLY?  YOU HAVE THAT RIGHT, OF COURSE.  ON
THIS POINT, I MEAN. 

"MR. HAMMER (PETITIONER'S COUNSEL):  WE HAVEN'T DISCUSSED IT, BUT WE
ARE MAKING THAT MOTION.  I FRANKLY DON'T KNOW AT THIS POINT OF ANY
REPLY THAT IS NECESSARY.  I DON'T KNOW OF ANY EVIDENCE IN THIS CASE
...  . 

     *         *         *         *         * 

"THE COURT:  THE REASON I AM MAKING THAT INQUIRY AS TO WHETHER YOU
INTEND TO PUT UP ANY MORE TESTIMONY IN THE EVENT I OVERRULE YOUR
MOTION, COUNSEL MAY WISH TO MOVE FOR A DIRECTED VERDICT ON THAT GROUND
SINCE IT IS A QUESTION OF LAW.  BUT THAT IS HIS PREROGATIVE AFTER ALL
THE EVIDENCE IS IN.  OF COURSE, HE CAN'T MOVE FOR A DIRECTED VERDICT AS
LONG AS YOU HAVE A RIGHT TO REPLY. 

"MR. HAMMER:  WE ARE MOVING AT THIS TIME IN THE NATURE OF A VOLUNTARY
DISMISSAL. 

"THE COURT:  YOU MOVE TO DISMISS THAT DEFENSE? 

"MR. HAMMER:  YES, SIR, AT THIS STAGE OF THE GAME." 

AFTER ARGUMENT BY COUNSEL, THE COURT MADE ITS RULING, GRANTING
PETITIONER'S MOTION.  RESPONDENT HAVING INDICATED ITS INTENTION TO MOVE
FOR A DIRECTED VERDICT, THE COURT THEN SAID, "I WILL ALLOW YOU TO
INCLUDE IN THAT MOTION FOR DIRECTED VERDICT YOUR DEFENSE WHICH I HAVE
STRICKEN, IF YOU DESIRE  ...  ."  RESPONDENT'S MOTION WAS OVERRULED. 

IT IS APPARENT THAT PETITIONER HAD NO INTENTION OF INTRODUCING ANY
EVIDENCE ON THE ISSUE OF WHETHER RESPONDENT WAS HIS STATUTORY EMPLOYER
AND THAT HE WAS PREPARED TO - AND DID - SUBMIT THE ISSUE TO THE COURT
ON THAT BASIS.  CLEARLY PETITIONER CANNOT BE SAID TO HAVE RELIED UPON,
AND THUS TO HAVE BEEN MISLED BY, THE COURT'S ERRONEOUS CONSTRUCTION OF
THE LAW, FOR IT WAS BEFORE THE COURT HAD DISCLOSED ITS VIEW OF THE LAW
THAT PETITIONER MADE APPARENT HIS WILLINGNESS TO SUBMIT THE ISSUE TO IT
ON THE BASIS OF RESPONDENT'S EVIDENCE.  IF PETITIONER COULD HAVE CAST
ANY DOUBT ON THAT EVIDENCE OR COULD HAVE BROUGHT IN ANY OTHER MATTER
RELEVANT TO THE ISSUE, IT WAS HIS DUTY TO BRING IT FORWARD BEFORE THE
ISSUE WAS SUBMITTED TO THE COURT.  FOR COUNSEL TO WITHHOLD EVIDENCE ON
AN ISSUE SUBMITTED FOR DECISION UNTIL AFTER THAT ISSUE HAS BEEN
RESOLVED AGAINST HIM WOULD BE AN ABUSE OF THE JUDICIAL PROCESS THAT
THIS COURT SURELY SHOULD NOT COUNTENANCE, HOWEVER STRONG THE
PHILANTHROPIC APPEAL IN A PARTICULAR CASE.  NOR DOES IT APPEAR THAT
PETITIONER HAD ANY SUCH "GAME" IN MIND.  HE GAVE NOT THE SLIGHTEST
INDICATION OF AN INTENTION TO INTRODUCE ANY ADDITIONAL EVIDENCE, NO
MATTER HOW THE COURT MIGHT DECIDE THE ISSUE.  IT SEEMS EQUALLY CLEAR
THAT, HAD THE TRIAL COURT DECIDED THE ISSUE - ON ANY CONSTRUCTION - IN
FAVOR OF THE RESPONDENT, THE PETITIONER WAS PREPARED TO RELY SOLELY
UPON HIS RIGHT OF APPEAL. 

WE ARE NOT TO READ THE RECORD AS THOUGH WE ARE MAKING AN INDEPENDENT
EXAMINATION OF THE TRIAL PROCEEDINGS.  WE ARE SITTING IN JUDGMENT ON
THE COURT OF APPEALS' REVIEW OF THE RECORD.  THAT COURT, INCLUDING
CHIEF JUDGE PARKER AND JUDGE SOPER, TWO OF THE MOST EXPERIENCED AND
ESTEEMED CIRCUIT JUDGES IN THE FEDERAL JUDICIARY, INTERPRETED THE
RECORD AS IT DID IN LIGHT OF ITS KNOWLEDGE OF LOCAL PRACTICE AND OF THE
WAYS OF LOCAL LAWYERS.  IN ORDERING JUDGMENT ENTERED FOR RESPONDENT, IT
NECESSARILY CONCLUDED, AS A RESULT OF ITS CRITICAL EXAMINATION OF THE
RECORD, THAT PETITIONER'S COUNSEL CHOSE TO HAVE THE ISSUE DECIDED ON
THE BASIS OF THE RECORD AS IT THEN STOOD.  THE DETERMINATION OF THE
COURT OF APPEALS CAN PROPERLY BE REVERSED ONLY IF IT IS FOUND THAT IT
WAS BASELESS.  EVEN GRANTING THAT THE RECORD IS SUSCEPTIBLE OF TWO
INTERPRETATIONS, IT IS TO DISREGARD THE RELATIONSHIP OF THIS COURT TO
THE COURTS OF APPEALS, ESPECIALLY AS TO THEIR FUNCTION IN APPEALS IN
DIVERSITY CASES, TO SUBSTITUTE OUR VIEW FOR THEIRS. 

THE ORDER OF THE COURT OF APPEALS THAT THE DISTRICT COURT ENTER
JUDGMENT FOR THE RESPONDENT IS AMPLY SUSTAINED ON EITHER THEORY AS TO
WHETHER OR NOT THE ISSUE WAS ONE FOR THE COURT TO DECIDE.  IF THE
QUESTION IS FOR THE COURT, THE COURT OF APPEALS HAS SATISFACTORILY
RESOLVED IT IN ACCORDANCE WITH STATE DECISIONS.  AND IF, ON THE OTHER
HAND, THE ISSUE IS SUCH THAT IT WOULD HAVE TO BE SUBMITTED TO THE JURY
IF THERE WERE ANY CRUCIAL FACTS IN CONTROVERSY, BOTH THE DISTRICT COURT
AND THE COURT OF APPEALS AGREED THAT THERE WAS NO CONFLICT AS TO THE
RELEVANT EVIDENCE - NOT, AT ANY RATE, IF SUCH INCONSISTENCY AS EXISTED
WAS RESOLVED IN FAVOR OF PETITIONER.  ACCORDING TO THE GOVERNING VIEW
OF SOUTH CAROLINA LAW, AS GIVEN US BY THE COURT OF APPEALS, THAT
EVIDENCE WOULD CLEARLY HAVE REQUIRED THE DISTRICT COURT TO GRANT A
DIRECTED VERDICT TO THE RESPONDENT.  ACCORDINGLY, I WOULD AFFIRM THE
JUDGMENT. 

FN1  "SEC.  72-111.  LIABILITY OF OWNER TO WORKMEN OF SUBCONTRACTOR. 

"WHEN ANY PERSON, IN THIS SECTION AND SECS. 72-113 AND 72-114
REFERRED TO AS 'OWNER,' UNDERTAKES TO PERFORM OR EXECUTE ANY WORK WHICH
IS A PART OF HIS TRADE, BUSINESS OR OCCUPATION AND CONTRACTS WITH ANY
OTHER PERSON (IN THIS SECTION AND SECS. 72-113 TO 72-116 REFERRED TO AS
'SUBCONTRACTOR') FOR THE EXECUTION OR PERFORMANCE BY OR UNDER SUCH
SUBCONTRACTOR OF THE WHOLE OR ANY PART OF THE WORK UNDERTAKEN BY SUCH
OWNER, THE OWNER SHALL BE LIABLE TO PAY TO ANY WORKMAN EMPLOYED IN THE
WORK ANY COMPENSATION UNDER THIS TITLE WHICH HE WOULD HAVE BEEN LIABLE
TO PAY IF THE WORKMAN HAD BEEN IMMEDIATELY EMPLOYED BY HIM." 

FN2  "SEC.  72-121.  EMPLOYEE'S RIGHTS UNDER TITLE EXCLUDE ALL OTHERS
AGAINST EMPLOYER. 

"THE RIGHTS AND REMEDIES GRANTED BY THIS TITLE TO AN EMPLOYEE WHEN HE
AND HIS EMPLOYER HAVE ACCEPTED THE PROVISIONS OF THIS TITLE,
RESPECTIVELY, TO PAY AND ACCEPT COMPENSATION ON ACCOUNT OF PERSONAL
INJURY OR DEATH BY ACCIDENT, SHALL EXCLUDE ALL OTHER RIGHTS AND
REMEDIES OF SUCH EMPLOYEE, HIS PERSONAL REPRESENTATIVE, PARENTS,
DEPENDENTS OR NEXT OF KIN AS AGAINST HIS EMPLOYER, AT COMMON LAW OR
OTHERWISE, ON ACCOUNT OF SUCH INJURY, LOSS OF SERVICE OR DEATH. 

     *         *         * *         * 

"SEC. 72-123.  ONLY ONE REMEDY AVAILABLE. 

"EITHER THE ACCEPTANCE OF AN AWARD UNDER THIS TITLE OR THE
PROCUREMENT AND COLLECTION OF A JUDGMENT IN AN ACTION AT LAW SHALL BE A
BAR TO PROCEEDING FURTHER WITH THE ALTERNATE REMEDY." 

FN3  IT MAY BE NOTED THAT NOT EVEN PETITIONER'S COUNSEL SUPPORTS THE
TRIAL COURT'S THEORY REGARDING THE SOUTH CAROLINA WORKMEN'S
COMPENSATION LAW. 

FN4  FOR EXAMPLE, WHETHER OR NOT THE DEFENDANT HAD EVER ITSELF
PERFORMED THE WORK CONTRACTED OUT HAS NOT BEEN THOUGHT TO BE A
CONCLUSIVE CRITERION.  IN FACT, IN BOSEMAN V. PACIFIC MILLS, 193 S.C.
479, 8 S.E.2D 878, THE COURT REJECTED THE DEFENDANT'S CONTENTION THAT,
BECAUSE IT HAD NEVER PERFORMED THE WORK IN QUESTION, IT COULD NOT BE
HELD AN EMPLOYER.  SEE ALSO HOPKINS V. DARLINGTON VENEER CO., 208 S.C.
307, 38 S.E.2D 4; KENNERLY V. OCMULGEE LUMBER CO., 206 S.C. 481, 34
S.E.2D 792.   NOR IS THE QUESTION WHETHER OR NOT THE ACCOMPLISHMENT OF
THE WORK INVOLVED REQUIRES SPECIALIZED SKILL DETERMINATIVE.  SEE
MARCHBANKS V. DUKE POWER CO., 190 S.C. 336, 2 S.E.2D 825. 

MR. JUSTICE HARLAN, DISSENTING. 

I JOIN IN MR. JUSTICE FRANKFURTER'S DISSENTING OPINION, BUT DESIRE TO
ADD TWO FURTHER REASONS WHY I BELIEVE THE JUDGMENT OF THE COURT OF
APPEALS SHOULD BE AFFIRMED.  AS I READ THAT COURT'S OPINION, IT HELD
THAT UNDER SOUTH CAROLINA LAW THE CONSTRUCTION OF FACILITIES NEEDED TO
TRANSMIT ELECTRIC POWER WAS NECESSARILY A PART OF THE BUSINESS OF
FURNISHING POWER, WHETHER SUCH CONSTRUCTION WAS PERFORMED BY THE
RESPONDENT ITSELF OR LET OUT TO OTHERS, AND THAT IN EITHER CASE
RESPONDENT WOULD BE LIABLE TO PETITIONER FOR COMPENSATION AS HIS
STATUTORY EMPLOYER.  SINCE THERE IS NO DISPUTE THAT RESPONDENT AT THE
TIME OF THE ACCIDENT WAS ENGAGED IN THE BUSINESS OF FURNISHING POWER
AND THAT PETITIONER WAS INJURED WHILE ENGAGED IN CONSTRUCTION IN
FURTHERANCE OF THAT BUSINESS, I DO NOT PERCEIVE HOW ANY FURTHER
EVIDENCE WHICH MIGHT BE ADDUCED BY PETITIONER COULD CHANGE THE RESULT
REACHED BY THE COURT OF APPEALS.  IN ANY EVENT, IN THE CIRCUMSTANCES
DISCLOSED BY THE RECORD BEFORE US, WE SHOULD AT THE VERY LEAST REQUIRE
PETITIONER TO MAKE SOME SHOWING HERE OF THE CHARACTER OF THE FURTHER
EVIDENCE HE EXPECTS TO INTRODUCE BEFORE WE DISTURB THE JUDGMENT BELOW. 

..END :







PAYNE V. ARKANSAS 356 U.S. 560 


NO. 99.  ARGUED MARCH 3, 1958.  - DECIDED MAY 19, 1958.  - 226 ARK. 910,
225 S.W.2D 312, REVERSED AND CAUSE REMANDED. 


PETITIONER, A MENTALLY DULL 19-YEAR-OLD NEGRO WITH A FIFTH-GRADE
EDUCATION, WAS CONVICTED IN A STATE COURT OF FIRST DEGREE MURDER AND
SENTENCED TO DEATH.  AT HIS TRIAL, THERE WAS ADMITTED IN EVIDENCE, OVER
HIS OBJECTION, A CONFESSION SHOWN BY UNDISPUTED EVIDENCE TO HAVE BEEN
OBTAINED IN THE FOLLOWING CIRCUMSTANCES:  HE WAS ARRESTED WITHOUT A
WARRANT AND NEVER TAKEN BEFORE A MAGISTRATE OR ADVISED OF HIS RIGHT TO
REMAIN SILENT OR TO HAVE COUNSEL, AS REQUIRED BY STATE LAW.  AFTER
BEING HELD INCOMMUNICADO FOR THREE DAYS WITHOUT COUNSEL, ADVISOR OR
FRIEND, AND WITH VERY LITTLE FOOD, HE CONFESSED AFTER BEING TOLD BY THE
CHIEF OF POLICE THAT "THERE WOULD BE 30 OR 40 PEOPLE THERE IN A FEW
MINUTES THAT WANTED TO GET HIM" AND THAT, IF HE WOULD TELL THE TRUTH,
THE CHIEF OF POLICE PROBABLY WOULD KEEP THEM FROM COMING IN.  HELD:
PETITIONER WAS DENIED DUE PROCESS OF LAW CONTRARY TO THE FOURTEENTH
AMENDMENT; THE JUDGMENT OF THE STATE SUPREME COURT AFFIRMING THE
CONVICTION IS REVERSED; AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  PP. 561-569. 

(A)  IT IS OBVIOUS FROM THE TOTALITY OF THE COURSE OF CONDUCT SHOWN
BY UNDISPUTED EVIDENCE THAT THE CONFESSION WAS COERCED AND DID NOT
CONSTITUTE AN "EXPRESSION OF FREE CHOICE."  PP. 562-567. 

(B)  EVEN THOUGH THERE MAY HAVE BEEN SUFFICIENT EVIDENCE, APART FROM
THE COERCED CONFESSION, TO SUPPORT A CONVICTION, THE ADMISSION IN
EVIDENCE OF THE COERCED CONFESSION, OVER PETITIONER'S OBJECTION,
VITIATES THE JUDGMENT, BECAUSE IT VIOLATES THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  PP. 567-568. 

(C)  STEIN V. NEW YORK, 346 U.S. 156, DISTINGUISHED.  P. 568, N. 15. 

PAYNE V. ARKANSAS. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A 19-YEAR-OLD NEGRO, WAS CONVICTED BY A JURY IN JEFFERSON
COUNTY, ARKANSAS, OF FIRST DEGREE MURDER AND SENTENCED TO DEATH BY
ELECTROCUTION.  ON APPEAL TO THE SUPREME COURT OF ARKANSAS HE PRESSED
TWO MAIN CONTENTIONS:  (1) THAT THE TRIAL COURT ERRED IN OVERRULING HIS
MOTION TO SUPPRESS, AND IN RECEIVING IN EVIDENCE OVER HIS OBJECTION, A
COERCED AND FALSE CONFESSION, AND THAT THE ERROR TAKES AND DEPRIVES HIM
OF HIS LIFE WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION, AND (2) THAT THE TRIAL COURT ERRED IN
OVERRULING HIS MOTION TO QUASH THE PANEL OF PETIT JURORS UPON THE
GROUND THAT NEGROES WERE SYSTEMATICALLY EXCLUDED, OR THEIR NUMBER
LIMITED, IN THE SELECTION OF THE JURY PANEL, AND THAT THE ERROR
DEPRIVES HIM OF THE EQUAL PROTECTION OF THE LAWS AND OF DUE PROCESS OF
LAW, IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION.  THE
COURT HELD THAT THESE CONTENTIONS WERE WITHOUT MERIT AND AFFIRMED THE
JUDGMENT.  226 ARK. 910, 295 S.W.2D 312.  HE THEN APPLIED TO US FOR A
WRIT OF CERTIORARI, BASED ON THESE CONTENTIONS, WHICH WE GRANTED
BECAUSE THE CONSTITUTIONAL QUESTIONS PRESENTED APPEARED TO BE
SUBSTANTIAL.  353 U.S. 929. 

WE WILL FIRST CONSIDER PETITIONER'S CONTENTION THAT THE CONFESSION
WAS COERCED, AND THAT ITS ADMISSION IN EVIDENCE OVER HIS OBJECTION
DENIED HIM DUE PROCESS OF LAW, IN VIOLATION OF THE FOURTEENTH
AMENDMENT. 

THE USE IN A STATE CRIMINAL TRIAL OF A DEFENDANT'S CONFESSION
OBTAINED BY COERCION - WHETHER PHYSICAL OR MENTAL - IS FORBIDDEN BY THE
FOURTEENTH AMENDMENT.  (FN1)  ENFORCEMENT OF THE CRIMINAL LAWS OF THE
STATES RESTS PRINCIPALLY WITH THE STATE COURTS, AND GENERALLY THEIR
FINDINGS OF FACT, FAIRLY MADE UPON SUBSTANTIAL AND CONFLICTING
TESTIMONY AS TO THE CIRCUMSTANCES PRODUCING THE CONTESTED CONFESSION -
AS DISTINGUISHED FROM INADEQUATELY SUPPORTED FINDINGS OR CONCLUSIONS
DRAWN FROM UNCONTROVERTED HAPPENINGS - ARE NOT THIS COURT'S CONCERN;
(FN2) YET WHERE THE CLAIM IS THAT THE PRISONER'S CONFESSION IS THE
PRODUCT OF COERCION WE ARE BOUND TO MAKE OUR OWN EXAMINATION OF THE
RECORD TO DETERMINE WHETHER THE CLAIM IS MERITORIOUS.  "THE PERFORMANCE
OF THIS DUTY CANNOT BE FORECLOSED BY THE FINDING OF A COURT, OR THE
VERDICT OF A JURY, OR BOTH."  (FN3)  THE QUESTION FOR OUR DECISION THEN
IS WHETHER THE CONFESSION WAS COERCED.  THAT QUESTION CAN BE ANSWERED
ONLY BY REVIEWING THE CIRCUMSTANCES UNDER WHICH THE CONFESSION WAS
MADE.  WE THEREFORE PROCEED TO EXAMINE THOSE CIRCUMSTANCES AS SHOWN BY
THIS RECORD. 

NEAR 6:30 P.M. ON OCTOBER 4, 1955, J.M. ROBERTSON, AN ELDERLY RETAIL
LUMBER DEALER IN THE CITY OF PINE BLUFF, ARKANSAS, WAS FOUND IN HIS
OFFICE DEAD OR DYING FROM CRUSHING BLOWS INFLICTED UPON HIS HEAD.  MORE
THAN $450 WAS MISSING FROM THE CASH DRAWER.  PETITIONER, A 19-YEAR-OLD
NEGRO WITH A FIFTH-GRADE EDUCATION, (FN4) WHO HAD BEEN EMPLOYED BY
ROBERTSON FOR SEVERAL WEEKS, WAS SUSPECTED OF THE CRIME.  HE WAS
INTERROGATED THAT NIGHT AT HIS HOME BY THE POLICE, BUT THEY DID NOT
THEN ARREST HIM.  NEAR 11 A.M. THE NEXT DAY, OCTOBER 5, HE WAS ARRESTED
WITHOUT A WARRANT AND PLACED IN A CELL ON THE FIRST FLOOR OF THE CITY
JAIL.  ARKANSAS STATUTES PROVIDE THAT AN ARREST MAY BE MADE WITHOUT A
WARRANT WHEN AN OFFICER "HAS REASONABLE GROUNDS FOR BELIEVING THAT THE
PERSON ARRESTED HAS COMMITTED FELONY," (FN5) AND THAT WHEN AN ARREST IS
MADE WITHOUT A WARRANT THE PERSON ARRESTED "SHALL BE FORTHWITH CARRIED
BEFORE THE MOST CONVENIENT MAGISTRATE OF THE COUNTY IN WHICH THE ARREST
IS MADE," (FN6) AND WHEN THE PERSON ARRESTED IS BROUGHT BEFORE SUCH
MAGISTRATE IT IS THE LATTER'S DUTY TO "STATE THE CHARGE AGAINST THE
ACCUSED AND TO INQUIRE  ...  WHETHER HE DESIRES THE AID OF COUNSEL AND
TO ALLOW HIM A REASONABLE OPPORTUNITY" TO OBTAIN COUNSEL.  (FN7)  IT IS
ADMITTED THAT PETITIONER, THOUGH ARRESTED WITHOUT A WARRANT, WAS NEVER
TAKEN BEFORE A MAGISTRATE, AND THAT THE STATUTES MENTIONED WERE NOT
COMPLIED WITH. 

PETITIONER WAS HELD INCOMMUNICADO WITHOUT ANY CHARGE AGAINST HIM FROM
THE TIME OF HIS ARREST AT 11 A.M. ON OCTOBER 5 UNTIL AFTER HIS
CONFESSION ON THE AFTERNOON OF OCTOBER 7, WITHOUT COUNSEL, ADVISOR OR
FRIEND BEING PERMITTED TO SEE HIM.  MEMBERS OF HIS FAMILY WHO SOUGHT TO
SEE HIM WERE TURNED AWAY, BECAUSE THE POLICE DID NOT "MAKE IT A
PRACTICE OF LETTING ANYONE TALK TO PRISONERS WHILE THEY ARE BEING
QUESTIONED."  TWO OF PETITIONER'S BROTHERS AND THREE OF HIS NEPHEWS
WERE, TO HIS KNOWLEDGE, BROUGHT BY THE POLICE TO THE CITY JAIL AND
QUESTIONED DURING THE EVENING OF PETITIONER'S ARREST, AND ONE OF HIS
BROTHERS WAS ARRESTED AND HELD IN JAIL OVERNIGHT.  PETITIONER ASKED
PERMISSION TO MAKE A TELEPHONE CALL BUT HIS REQUEST WAS DENIED. 

PETITIONER WAS NOT GIVEN LUNCH AFTER BEING LODGED IN THE CITY JAIL ON
OCTOBER 5, AND MISSED THE EVENING MEAL ON THAT DAY BECAUSE HE WAS THEN
BEING QUESTIONED IN THE OFFICE OF THE CHIEF OF POLICE.  NEAR 6:30 THE
NEXT MORNING, OCTOBER 6, HE WAS TAKEN BY THE POLICE, WITHOUT BREAKFAST,
AND ALSO WITHOUT SHOES OR SOCKS, (FN8) ON A TRIP TO LITTLE ROCK, A
DISTANCE OF ABOUT 45 MILES, FOR FURTHER QUESTIONING AND A LIE DETECTOR
TEST, ARRIVING THERE ABOUT 7:30 A.M.  HE WAS NOT GIVEN BREAKFAST IN
THAT CITY, BUT WAS TURNED OVER TO THE STATE POLICE WHO GAVE HIM A LIE
DETECTOR TEST AND QUESTIONED HIM FOR AN EXTENDED TIME NOT SHOWN IN THE
RECORD.  AT ABOUT 1 P.M. THAT DAY HE WAS GIVEN SHOES AND ALSO TWO
SANDWICHES - THE FIRST FOOD HE HAD RECEIVED IN MORE THAN 25 HOURS.  HE
WAS RETURNED TO THE CITY JAIL IN PINE BLUFF AT ABOUT 6:30 THAT EVENING
TOO LATE FOR THE EVENING MEAL - AND PLACED IN A CELL ON THE SECOND
FLOOR.  THE NEXT MORNING, OCTOBER 7, HE WAS GIVEN BREAKFAST - WHICH,
EXCEPT FOR THE TWO SANDWICHES HE HAD BEEN GIVEN AT LITTLE ROCK AT 1
P.M. THE DAY BEFORE, WAS THE ONLY FOOD HE HAD RECEIVED IN MORE THAN 40
HOURS. 

WE COME NOW TO AN EVEN MORE VITAL MATTER.  PETITIONER TESTIFIED,
(FN9) CONCERNING THE CONDUCT THAT IMMEDIATELY INDUCED HIS CONFESSION,
AS FOLLOWS:  "I WAS LOCKED UP UPSTAIRS AND CHIEF NORMAN YOUNG CAME UP
ABOUT 1 P.M. ON OCTOBER 7 AND HE TOLD ME THAT I HAD NOT TOLD HIM ALL OF
THE STORY - HE SAID THAT THERE WAS 30 OR 40 PEOPLE OUTSIDE THAT WANTED
TO GET TO ME, AND HE SAID IF I WOULD COME IN AND TELL HIM THE TRUTH
THAT HE WOULD PROBABLY KEEP THEM FROM COMING IN."  WHEN AGAIN ASKED
WHAT THE CHIEF OF POLICE HAD SAID TO HIM ON THAT OCCASION PETITIONER
TESTIFIED:  "CHIEF NORMAN YOUNG SAID THIRTY OR FORTY PEOPLE WERE
OUTSIDE WANTING TO GET IN TO ME AND HE ASKED ME IF I WANTED TO MAKE A
CONFESSION HE WOULD TRY TO KEEP THEM OUT."  THE CHIEF OF POLICE, ON
CROSS-EXAMINATION, ADMITTED THAT HE HAD MADE THE SUBSTANCE OF THAT
STATEMENT TO PETITIONER, (FN10) AND HAD TOLD HIM THAT HE WOULD BE
PERMITTED TO CONFESS TO THE CHIEF "IN PRIVATE."  IN THIS SETTING,
PETITIONER IMMEDIATELY AGREED TO MAKE A STATEMENT TO THE CHIEF.  THE
CHIEF THEN TOOK PETITIONER TO HIS PRIVATE OFFICE, AND ALMOST
IMMEDIATELY AFTER ARRIVING AT THAT PLACE THERE WAS A KNOCK ON THE
DOOR.  THE CHIEF OPENED THE DOOR AND STEPPED OUTSIDE, LEAVING THE DOOR
AJAR, AND PETITIONER HEARD HIM SAY "'HE IS FIXING TO CONFESS NOW,' AND
HE WOULD LIKE TO HAVE ME ALONE."  PETITIONER DID NOT KNOW WHAT PERSONS
OR HOW MANY WERE OUTSIDE THE DOOR.  THE CHIEF RE-ENTERED HIS OFFICE AND
BEGAN QUESTIONING PETITIONER WHO ORALLY CONFESSED THAT HE HAD COMMITTED
THE CRIME.  THEREUPON SERGEANT HALSELL OF THE STATE POLICE AND SHERIFF
NORTON WERE ADMITTED TO THE ROOM, AND UNDER QUESTIONING BY SERGEANT
HALSELL PETITIONER GAVE MORE DETAILS CONCERNING THE CRIME.  SOON
AFTERWARD A COURT REPORTER WAS CALLED IN AND SEVERAL BUSINESSMEN WERE
ALSO ADMITTED TO THE ROOM.  SERGEANT HALSELL THEN REQUESTIONED
PETITIONER AND THE QUESTIONS AND ANSWERS WERE TAKEN BY THE REPORTER IN
SHORTHAND.  AFTER BEING TRANSCRIBED BY THE REPORTER, THE TYPED
TRANSCRIPTION WAS RETURNED TO THE ROOM ABOUT 3 P.M. AND WAS READ AND
SIGNED BY PETITIONER AND WITNESSED BY THE OFFICERS AND BUSINESSMEN
REFERRED TO.  THUS THE "CONFESSION" WAS OBTAINED. 

AT THE BEGINNING OF THE TRIAL PETITIONER'S COUNSEL MOVED TO SUPPRESS
THE CONFESSION BECAUSE OBTAINED BY COERCION CULMINATING IN A THREAT OF
MOB VIOLENCE.  FOLLOWING ARKANSAS PROCEDURE (MCCLELLAN V. STATE, 203
ARK. 386, 156 S.W.2D 800), A HEARING UPON THAT MOTION WAS HELD BEFORE
THE TRIAL JUDGE IN CHAMBERS, AT WHICH THE FACTS ABOVE RECITED WERE
SHOWN WITHOUT DISPUTE.  IN ADDITION PETITIONER TESTIFIED THAT THE
CONFESSION DID NOT CONTAIN THE TRUTH, AND WHEN ASKED WHY HE MADE IT, HE
ANSWERED:  "WELL, AS A MATTER OF FACT LAWYER BRANTON I WAS MORE THAN
AFRAID BECAUSE CHIEF NORMAN YOUNG HAD ALREADY TOLD ME THAT THERE WAS 30
OR 40 PEOPLES OUTSIDE AND THE WAY HE STATED IT, IF I HADN'T, IF I
DIDN'T MAKE THE CONFESSION THAT HE WOULD LET THEM IN, FROM THE
CONVERSATION, FROM THE WAY THAT HE TOLD ME."  THE TRIAL JUDGE OVERRULED
THE MOTION TO SUPPRESS THE CONFESSION.  THE SAME EVIDENCE WAS THEN
REPEATED BEFORE THE JURY, AND THE CONFESSION WAS ADMITTED IN EVIDENCE
OVER PETITIONER'S OBJECTION.  THE COURT INSTRUCTED THE JURY TO
DISREGARD THE CONFESSION IF THEY FOUND IT WAS NOT VOLUNTARILY MADE. 
THE JURY RETURNED A GENERAL VERDICT FINDING PETITIONER GUILTY OF FIRST
DEGREE MURDER AS CHARGED AND ASSESSED THE PENALTY OF DEATH BY
ELECTROCUTION.  JUDGMENT ACCORDINGLY WAS ENTERED ON THE VERDICT. 

THAT PETITIONER WAS NOT PHYSICALLY TORTURED AFFORDS NO ANSWER TO THE
QUESTION WHETHER THE CONFESSION WAS COERCED, FOR "THERE IS TORTURE OF
MIND AS WELL AS BODY; THE WILL IS AS MUCH AFFECTED BY FEAR AS BY FORCE
...  .  A CONFESSION BY WHICH LIFE BECOMES FORFEIT MUST BE THE
EXPRESSION OF FREE CHOICE."  WATTS V. INDIANA, 338 U.S. 49, 52, 53. 
(FN11)  THE UNDISPUTED EVIDENCE IN THIS CASE SHOWS THAT PETITIONER, A
MENTALLY DULL 19-YEAR-OLD YOUTH, (1) WAS ARRESTED WITHOUT A WARRANT,
(2) WAS DENIED A HEARING BEFORE A MAGISTRATE AT WHICH HE WOULD HAVE
BEEN ADVISED OF HIS RIGHT TO REMAIN SILENT AND OF HIS RIGHT TO COUNSEL,
AS REQUIRED BY ARKANSAS STATUTES, (3) WAS NOT ADVISED OF HIS RIGHT TO
REMAIN SILENT OR OF HIS RIGHT TO COUNSEL, (4) WAS HELD INCOMMUNICADO
FOR THREE DAYS, WITHOUT COUNSEL, ADVISOR OR FRIEND, AND THOUGH MEMBERS
OF HIS FAMILY TRIED TO SEE HIM THEY WERE TURNED AWAY, AND HE WAS
REFUSED PERMISSION TO MAKE EVEN ONE TELEPHONE CALL, (5) WAS DENIED FOOD
FOR LONG PERIODS, AND, FINALLY, (6) WAS TOLD BY THE CHIEF OF POLICE
"THAT THERE WOULD BE 30 OR 40 PEOPLE THERE IN A FEW MINUTES THAT WANTED
TO GET HIM," WHICH STATEMENT CREATED SUCH FEAR IN PETITIONER AS
IMMEDIATELY PRODUCED THE "CONFESSION."  IT SEEMS OBVIOUS FROM THE
TOTALITY OF THIS COURSE OF CONDUCT, (FN12) AND PARTICULARLY THE
CULMINATING THREAT OF MOB VIOLENCE, THAT THE CONFESSION WAS COERCED AND
DID NOT CONSTITUTE AN "EXPRESSION OF FREE CHOICE," (FN13) AND THAT ITS
USE BEFORE THE JURY, OVER PETITIONER'S OBJECTION, DEPRIVED HIM OF "THAT
FUNDAMENTAL FAIRNESS ESSENTIAL TO THE VERY CONCEPT OF JUSTICE," (FN14)
AND, HENCE, DENIED HIM DUE PROCESS OF LAW, GUARANTEED BY THE FOURTEENTH
AMENDMENT. 

RESPONDENT SUGGESTS THAT, APART FROM THE CONFESSION, THERE WAS
ADEQUATE EVIDENCE BEFORE THE JURY TO SUSTAIN THE VERDICT.  BUT WHERE,
AS HERE, A COERCED CONFESSION CONSTITUTES A PART OF THE EVIDENCE BEFORE
THE JURY AND A GENERAL VERDICT IS RETURNED, NO ONE CAN SAY WHAT CREDIT
AND WEIGHT THE JURY GAVE TO THE CONFESSION.  AND IN THESE CIRCUMSTANCES
THIS COURT HAS UNIFORMLY HELD THAT EVEN THOUGH THERE MAY HAVE BEEN
SUFFICIENT EVIDENCE, APART FROM THE COERCED CONFESSION, TO SUPPORT A
JUDGMENT OF CONVICTION, THE ADMISSION IN EVIDENCE, OVER OBJECTION, OF
THE COERCED CONFESSION VITIATES THE JUDGMENT BECAUSE IT VIOLATES THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  (FN15) 

THE ADMITTED FACTS, SET OUT ABOVE, MAKE APPLICABLE THE CONCLUSION
REACHED IN CHAMBERS V. FLORIDA, 309 U.S. 227, 241:  "DUE PROCESS OF
LAW, PRESERVED FOR ALL BY OUR CONSTITUTION, COMMANDS THAT NO SUCH
PRACTICE AS THAT DISCLOSED BY THIS RECORD SHALL SEND ANY ACCUSED TO HIS
DEATH."  THE JUDGMENT MUST BE REVERSED BECAUSE OF THE ADMISSION IN
EVIDENCE OF THE COERCED CONFESSION.  IT IS THEREFORE UNNECESSARY AT
THIS TIME FOR US TO DISCUSS OR DECIDE THE OTHER QUESTION PRESENTED BY
PETITIONER - WHETHER THE OVERRULING OF HIS MOTION TO QUASH THE PANEL OF
PETIT JURORS UPON THE GROUND THAT NEGROES WERE SYSTEMATICALLY EXCLUDED,
OR THEIR NUMBER LIMITED, IN THE SELECTION OF THE JURY PANEL DENIED HIM
THE EQUAL PROTECTION OF THE LAWS UNDER THE FOURTEENTH AMENDMENT - FOR
WE WILL NOT ASSUME THAT THE SAME ISSUE WILL BE PRESENT UPON A NEW
TRIAL. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  SEE, E.G., BROWN V. MISSISSIPPI, 297 U.S. 278; CHAMBERS V.
FLORIDA, 309 U.S. 227; LISENBA V. CALIFORNIA, 314 U.S. 219; ASHCRAFT V.
TENNESSEE, 322 U.S. 143; MALINSKI V. NEW YORK, 324 U.S. 401; HALEY V.
OHIO, 332 U.S. 596; WATTS V. INDIANA, 338 U.S. 49; STROBLE V.
CALIFORNIA, 343 U.S. 181; LEYRA V. DENNO, 347 U.S. 556; FIKES V.
ALABAMA, 352 U.S. 191.  THESE CASES ILLUSTRATE THE SETTLED VIEW OF THIS
COURT THAT THE ADMISSION IN EVIDENCE OVER OBJECTION OF A COERCED
CONFESSION VITIATES A JUDGMENT OF CONVICTION.    FN2  WATTS V. INDIANA,
SUPRA, AT 50-53.  CF. ASHCRAFT V. TENNESSEE, SUPRA, AT 153; MALINSKI V.
NEW YORK, SUPRA, AT 404; HALEY V. OHIO, SUPRA, AT 598; AND LEYRA V.
DENNO, SUPRA, AT 558. 

FN3  LISENBA V. CALIFORNIA, SUPRA, AT 237-238.  SEE ALSO BROWN V.
MISSISSIPPI, SUPRA, AT 278; CHAMBERS V. FLORIDA, SUPRA, AT 228-229;
HALEY V. OHIO, SUPRA, AT 599; WATTS V. INDIANA, SUPRA, AT 50. 

FN4  PETITIONER WAS MENTALLY DULL AND "SLOW TO LEARN" AND WAS IN THE
FIFTH GRADE WHEN HE BECAME 15 YEARS OF AGE.  BECAUSE OF HIS AGE HE WAS
ARBITRARILY PROMOTED TO THE SEVENTH GRADE AND SOON THEREAFTER QUIT
SCHOOL. 

FN5  ARK. STAT., 1947, SEC. 43-403. 

FN6  ARK. STAT., 1947, SEC. 43-601. 

FN7  ARK. STAT., 1947, SEC. 43-605. 

FN8  HIS SHOES AND SOCKS HAD BEEN TAKEN FROM HIM FOR LABORATORY
EXAMINATION OF SUSPECTED BLOODSTAINS. 

FN9  PETITIONER TOOK THE STAND BOTH ON THE HEARING OF THE MOTION TO
SUPPRESS THE CONFESSION, WHICH WAS HELD IN CHAMBERS OUTSIDE THE
PRESENCE OF THE JURY, AND UPON THE TRIAL BEFORE THE JURY. 

FN10  THE CHIEF OF POLICE TESTIFIED: 

"Q.  WHEN DID THE DEFENDANT FIRST TELL YOU HE WAS GOING TO CONFESS? 
A. APPROXIMATELY 1:00 P.M. ON THE AFTERNOON OF THE 7TH. 

"Q.  NOW WHERE WERE YOU AT THE TIME?  A. AT THE TIME THAT HE TOLD ME
HE WAS READY TO CONFESS HE WAS IN THE JAIL IN AN UPSTAIRS CELL AND I
WAS STANDING OUTSIDE OF THE CELL TALKING TO HIM. 

"Q.  WERE ANY OTHER OFFICERS PRESENT?  A. THERE WAS NOT. 

"Q.  STATE WHETHER OR NOT ANYTHING WAS SAID TO THE DEFENDANT TO THE
EFFECT THAT THERE WOULD BE 30 OR 40 PEOPLE THERE IN A FEW MINUTES THAT
WANTED TO GET HIM?  A. I TOLD HIM THAT WOULD BE POSSIBLE THERE WOULD BE
THAT MANY - IT WAS POSSIBLE THERE COULD BE THAT MANY. 

"Q.  DID YOU PROMISE THE DEFENDANT THAT HE WOULD HAVE AN OPPORTUNITY
TO CONFESS IN PRIVATE?  A. I DID. 

"Q.  DID YOU THEN GO DOWN TO YOUR OFFICE?  A. WE DID." 

FN11  THE CASES OF CHAMBERS V. FLORIDA, SUPRA, AT 240; LISENBA V.
CALIFORNIA, SUPRA, AT 237, 240; HALEY V. OHIO, SUPRA, AT 600; ASHCRAFT
V. TENNESSEE, SUPRA, AT 154; AND WARD V. TEXAS, 316 U.S. 547, 555, ALL
ANNOUNCE THE SAME PRINCIPLE. 

FN12  SEE FIKES V. ALABAMA, SUPRA, AT 197. 

FN13  WATTS V. INDIANA, SUPRA, AT 53. 

FN14  LISENBA V. CALIFORNIA, SUPRA, AT 236; LYONS V. OKLAHOMA, 322
U.S. 596, 605. 

FN15  WATTS V. INDIANA, SUPRA, AT 50; MALINSKI V. NEW YORK, SUPRA, AT
404; LYONS V. OKLAHOMA, SUPRA, AT 597.  STEIN V. NEW YORK, 346 U.S.
156, IS NOT TO THE CONTRARY, FOR IN THAT CASE THIS COURT DID NOT FIND
THAT THE CONFESSION WAS COERCED.  INDEED IT WAS THERE RECOGNIZED THAT
WHEN "THE RULING ADMITTING THE CONFESSION IS FOUND ON REVIEW TO BE
ERRONEOUS, THE CONVICTION, AT LEAST NORMALLY, SHOULD FALL WITH THE
CONFESSION  ...  .  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 FORCED CONFESSION IS A FALSE
FOUNDATION FOR ANY CONVICTION  ...  ."  ID., AT 191-192. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN IN THE REVERSAL OF THE JUDGMENT IN THIS CASE BECAUSE THE
POLICE CHIEF'S TESTIMONY, QUOTED IN FOOTNOTE 10 OF THE COURT'S OPINION,
SEEMS TO ME TO REQUIRE ACCEPTANCE OF PETITIONER'S CLAIM THAT HIS
CONFESSION WAS INDUCED THROUGH FEAR OF MOB VIOLENCE. 

MR. JUSTICE BURTON, ON THIS RECORD, WOULD ACCEPT THE CONCLUSION OF
THE STATE COURT AND JURY THAT PETITIONER'S CONFESSION WAS VOLUNTARY. 
THEREFORE, HE WOULD AFFIRM THE JUDGMENT RENDERED.  SEE HIS DISSENT IN
MOORE V. MICHIGAN, 355 U.S. 155, 165. 

MR. JUSTICE CLARK, DISSENTING. 

I BELIEVE THAT ON THIS RECORD THE STATE COURTS PROPERLY HELD
PETITIONER'S CONFESSION VOLUNTARY.  MOREOVER, EVEN IF THE CONFESSION BE
DEEMED COERCED, THERE IS SUFFICIENT OTHER EVIDENCE OF GUILT TO SUSTAIN
THE CONVICTION ON THE AUTHORITY OF STEIN V. NEW YORK, 346 U.S. 156, 188
194 (1953).  JUST FIVE YEARS AGO THIS COURT ESTABLISHED IN STEIN THAT
THERE WAS NO CONSTITUTIONAL ERROR "IF THE JURY ADMITTED AND RELIED ON
THE CONFESSION," OR "REJECTED IT AND CONVICTED ON OTHER EVIDENCE."  346
U.S., AT 193-194.  FOR PURPOSE OF MAKING THE LATTER DETERMINATION, THIS
COURT ASSUMED THERE THAT THE CONFESSION WAS FOUND COERCED BY THE JURY. 
IT MAKES NO DIFFERENCE THAT THE DETERMINATION OF COERCION HERE IS BY
THIS COURT RATHER THAN BY THE JURY, FOR AS IS EVIDENT FROM THE MAJORITY
OPINION, THE INQUIRY IS THE SAME - WHETHER THE CONFESSION WAS COERCED. 
I MUST APPLY THE STEIN RULE HERE BECAUSE THE ARKANSAS PROCEDURE ON
ADMISSION OF CHALLENGED CONFESSIONS IS IDENTICAL TO THAT WHICH WE
APPROVED IN THAT CASE.  SEE NOLAN V. STATE, 205 ARK. 103, 104, 167
S.W.2D 503-504; DINWIDDIE V. STATE, 202 ARK. 562, 570, 151 S.W.2D 93,
95-96. 
..END :








CIUCCI V. ILLINOIS 356 U.S. 571 


NO. 157.  ARGUED MARCH 13, 1958 - DECIDED MAY 19, 1958 - 8 ILL. 2D 619,
137 N.E.2D 40, AFFIRMED. 


1.  IN AN ILLINOIS STATE COURT, PETITIONER WAS CHARGED IN FOUR
SEPARATE INDICTMENTS WITH MURDERING HIS WIFE AND THREE CHILDREN, ALL OF
WHOM WERE FOUND DEAD IN A BURNING BUILDING WITH BULLET WOUNDS IN THEIR
HEADS.  IN THREE SUCCESSIVE TRIALS, PETITIONER WAS CONVICTED OF THE
FIRST DEGREE MURDER OF HIS WIFE AND TWO CHILDREN.  AT EACH OF THE
TRIALS THE PROSECUTION INTRODUCED INTO EVIDENCE THE DETAILS OF ALL FOUR
DEATHS.  AT THE FIRST TWO TRIALS THE JURY FIXED THE PENALTY AT
IMPRISONMENT.  AT THE THIRD TRIAL THE PENALTY WAS FIXED AT DEATH, AND
THE STATE SUPREME COURT AFFIRMED.  HELD:  THE STATE WAS
CONSTITUTIONALLY ENTITLED TO PROSECUTE THESE INDIVIDUAL OFFENSES SINGLY
AT SEPARATE TRIALS, AND TO UTILIZE THEREIN ALL RELEVANT EVIDENCE, IN
THE ABSENCE OF PROOF ESTABLISHING THAT SUCH A COURSE OF ACTION ENTAILED
FUNDAMENTAL UNFAIRNESS.  HOAG V. NEW JERSEY, ANTE, P. 464.  PP. 572
573. 

2.  IN HIS BRIEF IN THIS COURT, PETITIONER APPENDED A NUMBER OF
ARTICLES WHICH HAD APPEARED IN CHICAGO NEWSPAPERS AFTER THE FIRST AND
SECOND TRIALS ATTRIBUTING TO THE PROSECUTION DISSATISFACTION WITH THE
PRISON SENTENCES AND DETERMINATION TO PROSECUTE PETITIONER UNTIL A
DEATH SENTENCE WAS OBTAINED; BUT NEITHER THESE ARTICLES NOR THEIR
SUBJECT MATTER WAS INCLUDED IN THE RECORD CERTIFIED TO THIS COURT FROM
THE STATE SUPREME COURT.  HELD:  NOT BEING PART OF THE RECORD, AND NOT
HAVING BEEN CONSIDERED BY THE STATE COURTS, THAT MATERIAL MAY NOT BE
CONSIDERED HERE.  PP. 572-573. 

3.  THE JUDGMENT IS AFFIRMED, WITH LEAVE TO PETITIONER TO INSTITUTE
SUCH FURTHER PROCEEDINGS AS MAY BE AVAILABLE TO HIM FOR THE PURPOSE OF
SUBSTANTIATING THE CLAIM THAT HE WAS DEPRIVED OF DUE PROCESS.  P. 573. 

CIUCCI V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

PETITIONER WAS CHARGED IN FOUR SEPARATE INDICTMENTS WITH MURDERING
HIS WIFE AND THREE CHILDREN, ALL OF WHOM, WITH BULLET WOUNDS IN THEIR
HEADS, WERE FOUND DEAD IN A BURNING BUILDING DURING THE EARLY HOURS OF
DECEMBER 5, 1953.  IN THREE SUCCESSIVE TRIALS, PETITIONER WAS FOUND
GUILTY OF THE FIRST DEGREE MURDER OF HIS WIFE AND TWO OF HIS CHILDREN. 
AT EACH OF THE TRIALS THE PROSECUTION INTRODUCED INTO EVIDENCE DETAILS
OF ALL FOUR DEATHS.  UNDER ILLINOIS LAW THE JURY IS CHARGED WITH THE
RESPONSIBILITY OF FIXING THE PENALTY FOR FIRST DEGREE MURDER FROM 14
YEARS' IMPRISONMENT TO DEATH.  ILL. REV. STAT., 1957, C. 38, SEC. 360. 
AT THE FIRST TWO TRIALS, INVOLVING THE DEATH OF THE WIFE AND ONE OF THE
CHILDREN, THE JURY FIXED THE PENALTY AT 20 AND 45 YEARS' IMPRISONMENT
RESPECTIVELY.  AT THE THIRD TRIAL, INVOLVING THE DEATH OF A SECOND
CHILD, THE PENALTY WAS FIXED AT DEATH.  ON APPEAL THE SUPREME COURT OF
ILLINOIS AFFIRMED THE CONVICTION, 8 ILL. 2D 619, 137 N.E.2D 40, AND WE
GRANTED CERTIORARI TO CONSIDER PETITIONER'S CLAIM THAT THIS THIRD TRIAL
VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES.  353 U.S. 982. 

IT IS CONCEDED THAT UNDER ILLINOIS LAW EACH OF THE MURDERS, ALTHOUGH
APPARENTLY TAKING PLACE AT THE SAME TIME, CONSTITUTED A SEPARATE CRIME
AND IT IS UNDISPUTED THAT EVIDENCE OF THE ENTIRE OCCURRENCE WAS
RELEVANT IN EACH OF THE THREE PROSECUTIONS.  IN HIS BRIEF IN THIS COURT
PETITIONER HAS APPENDED A NUMBER OF ARTICLES WHICH HAD APPEARED IN
CHICAGO NEWSPAPERS AFTER THE FIRST AND SECOND TRIALS ATTRIBUTING TO THE
PROSECUTION CERTAIN STATEMENTS EXPRESSING EXTREME DISSATISFACTION WITH
THE PRISON SENTENCES FIXED BY THE JURY AND ANNOUNCING A DETERMINED
PURPOSE TO PROSECUTE PETITIONER UNTIL A DEATH SENTENCE WAS OBTAINED. 
NEITHER THESE ARTICLES NOR THEIR SUBJECT MATTER IS INCLUDED IN THE
RECORD CERTIFIED TO THIS COURT FROM THE SUPREME COURT OF ILLINOIS. 

THE FIVE MEMBERS OF THE COURT WHO JOIN IN THIS OPINION ARE IN
AGREEMENT THAT UPON THE RECORD AS IT STANDS NO VIOLATION OF DUE PROCESS
HAS BEEN SHOWN.  THE STATE WAS CONSTITUTIONALLY ENTITLED TO PROSECUTE
THESE INDIVIDUAL OFFENSES SINGLY AT SEPARATE TRIALS, AND TO UTILIZE
THEREIN ALL RELEVANT EVIDENCE, IN THE ABSENCE OF PROOF ESTABLISHING
THAT SUCH A COURSE OF ACTION ENTAILED FUNDAMENTAL UNFAIRNESS.  HOAG V.
NEW JERSEY, ANTE, PP. 464, 467; SEE PALKO V. CONNECTICUT, 302 U.S. 319,
328.  MR. JUSTICE FRANKFURTER AND MR. JUSTICE HARLAN, ALTHOUGH
BELIEVING THAT THE MATTERS SET FORTH IN THE AFOREMENTIONED NEWSPAPER
ARTICLES MIGHT, IF ESTABLISHED, REQUIRE A RULING THAT FUNDAMENTAL
UNFAIRNESS EXISTED HERE, CONCUR IN THE AFFIRMANCE OF THE JUDGMENT
BECAUSE THIS MATERIAL, NOT BEING PART OF THE RECORD, AND NOT HAVING
BEEN CONSIDERED BY THE STATE COURTS, MAY NOT BE CONSIDERED HERE. 

ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS IS
AFFIRMED, WITH LEAVE TO PETITIONER TO INSTITUTE SUCH FURTHER
PROCEEDINGS AS MAY BE AVAILABLE TO HIM FOR THE PURPOSE OF
SUBSTANTIATING THE CLAIM THAT HE WAS DEPRIVED OF DUE PROCESS.  IT IS SO
ORDERED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

THIS CASE PRESENTS AN INSTANCE OF THE PROSECUTION BEING ALLOWED TO
HARASS THE ACCUSED WITH REPEATED TRIALS AND CONVICTIONS ON THE SAME
EVIDENCE, UNTIL IT ACHIEVES ITS DESIRED RESULT OF A CAPITAL VERDICT. 

PETITIONER'S WIFE AND THREE CHILDREN WERE FOUND DEAD IN A BURNING
BUILDING.  IT WAS LATER ESTABLISHED THAT DEATH WAS DUE BOTH TO THE FIRE
AND TO BULLET WOUNDS EACH HAD RECEIVED IN THE HEAD.  PETITIONER WAS
FIRST TRIED ON AN INDICTMENT CHARGING THAT HE HAD MURDERED HIS WIFE. 
AT THAT TRIAL THE EVIDENCE WAS NOT LIMITED TO THE WIFE'S DEATH.  THE
DEATHS OF THE THREE CHILDREN WERE ALSO INTRODUCED, AND TESTIMONY AS TO
THE CAUSE OF DEATH OF ALL OF THE VICTIMS WAS RECEIVED.  THIS TRIAL WAS
IN EFFECT A TRIAL FOR THE MURDER OF ALL FOUR VICTIMS FOR THE GRUESOME
DETAILS OF EACH OF THE FOUR DEATHS WERE INTRODUCED INTO EVIDENCE. 
PETITIONER WAS FOUND GUILTY.  UNDER ILLINOIS LAW THE JURY DETERMINES
THE SENTENCE IN A MURDER CASE BETWEEN A MINIMUM OF 14 YEARS'
IMPRISONMENT AND A MAXIMUM OF DEATH.  ILL. REV. STAT., 1957, C. 38,
SEC. 360.  AT THAT FIRST TRIAL THE JURY FIXED THE PENALTY AT 20 YEARS'
IMPRISONMENT. 

THE PROSECUTOR DEMANDED ANOTHER TRIAL.  ACCORDINGLY PETITIONER WAS
NEXT TRIED ON A CHARGE OF MURDERING ONE OF HIS DAUGHTERS. 

AT THE SECOND TRIAL THE SAME EVIDENCE WAS INTRODUCED AS IN THE FIRST
TRIAL.  EVIDENCE CONCERNING THE FOUR DEATHS ONCE MORE WAS USED.  ONCE
MORE ALL THE GRUESOME DETAILS OF THE FOUR CRIMES WERE PRESENTED TO THE
JURY.  ONCE MORE THE ACCUSED WAS TRIED IN FORM FOR ONE MURDER, IN
SUBSTANCE FOR FOUR.  THIS TIME A DIFFERENT JURY AGAIN FOUND PETITIONER
GUILTY AND SENTENCED HIM TO 45 YEARS' IMPRISONMENT. 

THE PROSECUTOR WAS STILL NOT SATISFIED WITH THE RESULT.  AND SO A
THIRD TRIAL WAS HAD, THE ONE INVOLVED HERE. 

IN THIS THIRD TRIAL, PETITIONER WAS CHARGED WITH MURDERING HIS SON. 
THIS TIME PETITIONER OBJECTED BEFORE TRIAL THAT HE WAS BEING SUBJECTED
TO DOUBLE JEOPARDY.  HE ALSO MOVED TO EXCLUDE TESTIMONY CONCERNING THE
OTHER DEATHS AND AFTER VERDICT HE PROTESTED THAT HE HAD BEEN DENIED A
FAIR TRIAL GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE TRIAL COURT OVERRULED THOSE OBJECTIONS.  AT THE TRIAL
COMPLETE EVIDENCE OF ALL OF THE DEATHS AND THEIR CAUSES WAS AGAIN
INTRODUCED.  ONCE MORE THE GRUESOME DETAILS OF FOUR MURDERS WERE
PRESENTED TO A JURY - THE GATHERING OF THE FAMILY IN THEIR HOME, THE
FIRE AT 2 A.M., THE .22 CALIBER BULLETS IN THE BODIES OF THE FOUR
VICTIMS, THE BORROWING BY THE ACCUSED OF A .22 RIFLE, THE ARRIVAL OF
THE FIREMEN, THE AUTOPSIES AT THE MORGUE.  THIS TIME A THIRD JURY
SENTENCED PETITIONER TO DEATH. 

IN MY VIEW THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
PREVENTS THIS EFFORT BY A STATE TO OBTAIN THE DEATH PENALTY.  NO
CONSTITUTIONAL PROBLEM WOULD HAVE ARISEN IF PETITIONER HAD BEEN
PROSECUTED IN ONE TRIAL FOR AS MANY MURDERS AS THERE WERE VICTIMS.  BUT
BY USING THE SAME EVIDENCE IN MULTIPLE TRIALS THE STATE CONTINUED ITS
RELENTLESS PROSECUTIONS UNTIL IT GOT THE RESULT IT WANTED.  IT IN
EFFECT TRIED THE ACCUSED FOR FOUR MURDERS THREE CONSECUTIVE TIMES,
MASSING IN EACH TRIAL THE HORRIBLE DETAILS OF EACH OF THE FOUR DEATHS. 
THIS IS AN UNSEEMLY AND OPPRESSIVE USE OF A CRIMINAL TRIAL THAT
VIOLATES THE CONCEPT OF DUE PROCESS CONTAINED IN THE FOURTEENTH
AMENDMENT, WHATEVER ITS ULTIMATE SCOPE IS TAKEN TO BE. 

MR. JUSTICE BLACK CONCURS IN THIS DISSENT ON THE GROUND THAT THE
FOURTEENTH AMENDMENT BARS A STATE FROM PLACING A DEFENDANT TWICE IN
JEOPARDY FOR THE SAME OFFENSE. 
..END :







SACHER V. UNITED STATES 356 U.S. 576 


NO. 828.  DECIDED MAY 19, 1958 - 102 U.S. APP. D.C. 264, 252 F.2D 828,
REVERSED AND REMANDED. 


PETITIONER WAS CONVICTED OF VIOLATING 2 U.S.C. SEC. 192 BY FAILING TO
ANSWER THREE QUESTIONS PUT TO HIM BY A SUBCOMMITTEE OF THE INTERNAL
SECURITY SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY, AND HIS
CONVICTION WAS SUSTAINED BY A DIVIDED COURT OF APPEALS.  HELD:  HIS
REFUSAL TO ANSWER RELATED TO QUESTIONS NOT CLEARLY PERTINENT TO THE
SUBJECT ON WHICH THE TWO-MEMBER SUBCOMMITTEE CONDUCTING THE HEARING HAD
BEEN AUTHORIZED TO TAKE TESTIMONY.  THEREFORE, THE CONDITIONS NECESSARY
TO SUSTAIN A CONVICTION FOR DELIBERATELY REFUSING TO ANSWER QUESTIONS
PERTINENT TO THE AUTHORIZED SUBJECT MATTER OF A CONGRESSIONAL HEARING
WERE WANTING.  CERTIORARI IS GRANTED AND THE JUDGMENT IS REVERSED. 
WATKINS V. UNITED STATES, 354 U.S. 178.  PP. 576-578. 

SACHER V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS GRANTED.  CHARGED IN A
THREE-COUNT INDICTMENT FOR VIOLATION OF R.S. SEC. 102, AS AMENDED, 2
U.S.C. SEC. 192, FOR FAILURE TO ANSWER THREE QUESTIONS PUT TO HIM BY A
SUBCOMMITTEE OF THE INTERNAL SECURITY SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, THE PETITIONER, HAVING WAIVED TRIAL BY
JURY, WAS FOUND GUILTY ON ALL COUNTS AND SENTENCED TO SIX MONTHS'
IMPRISONMENT AND TO PAY A FINE OF $1,000.  AFTER THE SENTENCE WAS
SUSTAINED BY THE COURT OF APPEALS, 99 U.S. APP. D.C. 360, 240 F.2D 46,
THIS COURT, HAVING GRANTED A PETITION FOR CERTIORARI, REMANDED THE
CASE, 354 U.S. 930, TO THE COURT OF APPEALS FOR RECONSIDERATION IN
LIGHT OF WATKINS V. UNITED STATES, 354 U.S. 178.  ON REARGUMENT BEFORE
THE COURT OF APPEALS SITTING EN BANC, A DIVIDED COURT AGAIN AFFIRMED
THE CONVICTION.  102 U.S. APP. D.C. 264, 252 F.2D 828. 

THE BROAD SCOPE OF AUTHORITY VESTED IN CONGRESS TO CONDUCT
INVESTIGATIONS AS AN INCIDENT TO THE "LEGISLATIVE POWERS" GRANTED BY
THE CONSTITUTION IS NOT QUESTIONED.  SEE WATKINS V. UNITED STATES,
SUPRA, AT 215.  BUT WHEN CONGRESS SEEKS TO ENFORCE ITS INVESTIGATING
AUTHORITY THROUGH THE CRIMINAL PROCESS ADMINISTERED BY THE FEDERAL
JUDICIARY, THE SAFEGUARDS OF CRIMINAL JUSTICE BECOME OPERATIVE.  THE
SUBJECT MATTER OF INQUIRY BEFORE THE SUBCOMMITTEE AT WHICH PETITIONER
APPEARED AS A WITNESS CONCERNED THE RECANTATION OF PRIOR TESTIMONY BY A
WITNESS NAMED MATUSOW.  IN THE COURSE OF THE HEARING, THE QUESTIONING
OF PETITIONER ENTERED UPON A "BRIEF EXCURSION," 99 U.S. APP. D.C. 360,
367, 240 F.2D 46, 53, INTO PROPOSED LEGISLATION BARRING COMMUNISTS FROM
PRACTICE AT THE FEDERAL BAR, A SUBJECT NOT WITHIN THE SUBCOMMITTEE'S
SCOPE OF INQUIRY AS AUTHORIZED BY ITS PARENT COMMITTEE.  INASMUCH AS
PETITIONER'S REFUSAL TO ANSWER RELATED TO QUESTIONS NOT CLEARLY
PERTINENT TO THE SUBJECT ON WHICH THE TWO-MEMBER SUBCOMMITTEE
CONDUCTING THE HEARING HAD BEEN AUTHORIZED TO TAKE TESTIMONY, THE
CONDITIONS NECESSARY TO SUSTAIN A CONVICTION FOR DELIBERATELY REFUSING
TO ANSWER QUESTIONS PERTINENT TO THE AUTHORIZED SUBJECT MATTER OF A
CONGRESSIONAL HEARING ARE WANTING.  WATKINS V. UNITED STATES, SUPRA.
THE JUDGMENT OF THE COURT OF APPEALS IS THEREFORE REVERSED AND THE
CAUSE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE
INDICTMENT.  REVERSED. 

MR. JUSTICE BURTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, CONCURRING. 

IN JOINING THE COURT'S OPINION, I AM CONSTRAINED TO WRITE THESE FEW
WORDS WITH REFERENCE TO MY BROTHER CLARK'S SUGGESTION THAT THE COURT
SHOULD HEAR ARGUMENT IN THIS CASE.  AS THE LIMITED SCOPE OF THE
SUBCOMMITTEE'S AUTHORITY IS NOT IN DISPUTE, THE CONTROLLING ISSUE IS
WHETHER THE PERTINENCY OF THE QUESTIONS PUT TO PETITIONER WAS OF SUCH
"UNDISPUTABLE CLARITY" AS TO JUSTIFY HIS PUNISHMENT IN A COURT OF LAW
FOR REFUSING TO ANSWER THEM.  WATKINS V. UNITED STATES, 354 U.S. 178,
214.  THAT ISSUE CAN ONLY BE DETERMINED BY SCRUTINY OF THE RECORD, AND
A FULL-DRESS ARGUMENT COULD HARDLY SHED FURTHER LIGHT ON THE MATTER. 
IN SUCH CIRCUMSTANCES PROMPT DISPOSITION OF THE CASE BEFORE US
CERTAINLY CONSTITUTES SOUND JUDICIAL ADMINISTRATION.  FOR MY PART, IT
IS ABUNDANTLY EVIDENT THAT THE PERTINENCY OF NONE OF THE THREE
QUESTIONS INVOLVED CAN BE REGARDED AS UNDISPUTABLY CLEAR, AS INDEED IS
EVIDENCED BY THE DIFFERENT INTERPRETATIONS OF THE RECORD ADVANCED BY
THE MEMBERS OF THIS COURT AND OF THE COURT OF APPEALS WHO HAVE
CONSIDERED THE ISSUE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE WHITTAKER CONCURS,
DISSENTING. 

PETITIONER CONCEDES THAT THE SUBJECT MATTER UNDER INQUIRY, THE
MATUSOW RECANTATION, "WAS CLEARLY DEFINED BY THE SUBCOMMITTEE AND HE
WAS SPECIFICALLY NOTIFIED AS TO WHAT THAT SUBJECT WAS AT THE TIME HE
WAS SUBPOENAED."*  IF ANY OF THE THREE QUESTIONS WHICH PETITIONER
REFUSED TO ANSWER IS CLEARLY PERTINENT TO THAT SUBJECT, THE JUDGMENT
MUST BE SUSTAINED, SINCE A GENERAL SENTENCE WAS IMPOSED AFTER
CONVICTION ON THREE COUNTS, ONE FOR EACH REFUSAL.  CLAASSEN V. UNITED
STATES, 142 U.S. 140 (1891). 

*THE CONCESSION APPEARS IN PETITIONER'S APPLICATION FOR CERTIORARI
LAST YEAR, NO. 884, 1956 TERM, WHICH WE GRANTED, 354 U.S. 930, IN
CONNECTION WITH OUR REMAND IN LIGHT OF WATKINS V. UNITED STATES, 354
U.S. 178 (1957).  NOTHING IN THE PRESENT APPLICATION FOR CERTIORARI
CONTROVERTS THE CONCESSION. 

THE THIRD QUESTION, COVERED BY THE THIRD COUNT OF THE INDICTMENT, WAS
WHETHER PETITIONER WAS OR EVER HAD BEEN "A MEMBER OF THE LAWYERS'
"BRIEF EXCURSION" INTO PROPOSED LEGISLATION BARRING COMMUNIST LAWYERS
FROM THE FEDERAL COURTS DID NOT CARRY AS FAR AS THIS QUESTION, WHICH
WAS VITAL TO A MATTER IN WHICH THE COMMITTEE PROPERLY WAS INTERESTED -
PETITIONER'S ROLE IN A COMMUNIST CONSPIRACY TO PROCURE MATUSOW'S
RECANTATION.  THE CONTEXT OF THE QUESTION CLEARLY RELATES IT TO THE
RECANTATION RATHER THAN THE PROPOSED LEGISLATION.  JUST PRIOR TO ASKING
ABOUT MEMBERSHIP IN THE LAWYERS' SECTION OF THE PARTY, THE COMMITTEE
ASKED THREE TIMES WHETHER PETITIONER HAD ATTENDED A BIRTHDAY PARTY FOR
ONE ALEXANDER BITTELMAN.  PETITIONER REPLIED THAT HE DID NOT REMEMBER. 
THE COMMITTEE ALREADY HAD REPORTS THAT HE WAS AT THE PARTY, WHICH
NUMBERED 50 HIGH COMMUNISTS AMONG ITS GUESTS, AND THAT INFORMATION WAS
ONE OF THE REASONS WHY HE WAS CALLED BEFORE THE COMMITTEE.  HE THEN WAS
ASKED IF HE HAD "ANY CONNECTION WITH THE LEGAL COMMISSION OR LAW
COMMISSION OF THE COMMUNIST PARTY," FOR THE COMMITTEE ALSO HAD
INFORMATION THAT EITHER HE OR ONE NATHAN WITT PROBABLY WAS THE HEAD OF
A GROUP OF IMPORTANT COMMUNISTS CONSTITUTING A LAWYERS' COMMISSION TO
FORMULATE LEGAL STRATEGY FOR THE PARTY.  UPON ANSWERING THAT HE "DID
NOT KNOW OF ANY SUCH ORGANIZATION," HE WAS ASKED THE QUESTION AT ISSUE,
NAMELY, WHETHER HE WAS OR HAD BEEN A MEMBER OF THE LAWYERS' SECTION OF
THE PARTY.  ITS RELATIONSHIP TO THE MATUSOW RECANTATION IS CONFIRMED BY
THE COMMITTEE'S NEXT QUESTION, ASKING WHETHER PETITIONER HAD ATTENDED A
COMMUNIST MEETING IN 1947 "AT THE HOME OF ANGUS CAMERON," PUBLISHER OF
MATUSOW'S AUTOBIOGRAPHY. 

WHEN THE QUESTION IS VIEWED IN CONTEXT, IT SEEMS TO ME THAT
PERTINENCY IS CLEARLY ESTABLISHED.  PETITIONER IS A SEASONED LAWYER
WITH TRIAL EXPERIENCE.  BOTH QUESTIONS AND ANSWERS MAY GO AFIELD IN THE
EXAMINATION OF A WITNESS - A TRUISM TO EVERY TRIAL PRACTITIONER - BUT
THAT FACT CANNOT LICENSE A WITNESS' REFUSAL TO ANSWER QUESTIONS WHICH
ARE RELEVANT. 

IN ANY EVENT THE GOVERNMENT SHOULD BE GIVEN A CHANCE TO PRESENT ORAL
ARGUMENT ON THE PERTINENCY OF THE QUESTION UNDER THE THIRD COUNT BEFORE
PETITIONER IS FREED.  OPPORTUNITY FOR A HEARING IS PARTICULARLY
IMPORTANT HERE BECAUSE THE ISSUE IS ONE THAT CONFRONTS THE COMMITTEES
OF THE CONGRESS DAY AFTER DAY.  FOR THESE REASONS I DISSENT FROM THE
SUMMARY REVERSAL OF PETITIONER'S CONVICTION. 
..END :



















BABCOCK V. CALIFORNIA 356 U.S. 581 


NO. 853.  DECIDED MAY 19, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


BABCOCK V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, LOS ANGELES COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















NORTH WESTERN-HANNA FUEL CO. V. UNITED STATES 356 U.S. 581 


NO. 861.  DECIDED MAY 19, 1958 - 161 F. SUPP. 714, AFFIRMED. 


NORTH WESTERN-HANNA FUEL CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















PORCHETTA V. OHIO 356 U.S. 582 


NO. 863.  DECIDED MAY 19, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW: 167 OHIO ST. 14, 145 N.E.2D 407. 


PORCHETTA V. OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















NEW YORK TRAP ROCK CORP. V. TOWN OF CLARKSTOWN, NEW YORK 356 U.S. 582 


NO. 867.  DECIDED MAY 19, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  3 N.Y.2D 844, 938,
144 N.E.2D 725, 146 N.E.2D 188. 


NEW YORK TRAP ROCK CORP. V. TOWN OF CLARKSTOWN, NEW YORK, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















ALHAMBRA GOLD MINE CORP. V. ALHAMBRA-SHUMWAY MINES, INC. 356 U.S. 583 


NO. 880.  DECIDED MAY 19, 1958 - APPEAL DISMISSED.  - REPORTED BELOW:
155 CAL. APP. 2D 46, 317 P.2D 649. 


ALHAMBRA GOLD MINE CORP. V. ALHAMBRA-SHUMWAY MINES, INC. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, THIRD
APPELLATE DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED.  GOSPEL
ARMY V. LOS ANGELES, 331 U.S. 543. 
..END :
















BROWNING V. KANSAS 356 U.S. 583 


NO. 620, MISC.  DECIDED MAY 19, 1958 - APPEAL DISMISSED.  - REPORTED
BELOW:  182 KAN. 244, 320 P.2D 844. 


BROWNING V. KANSAS. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















NATIONAL LABOR RELATIONS BOARD V. WOOSTER DIVISION OF BORG-WARNER CORP.
356 U.S. 342 


NO. 53.  ARGUED NOVEMBER 20-21, 1957 - DECIDED MAY 5, 1958* - 236 F.2D
898, AFFIRMED IN PART, REVERSED IN PART AND REMANDED. 

*TOGETHER WITH NO. 78, WOOSTER DIVISION OF BORG-WARNER CORP. V.
NATIONAL LABOR RELATIONS BOARD, ALSO ON CERTIORARI TO THE SAME COURT. 


IN COLLECTIVE-BARGAINING NEGOTIATIONS WITH CERTAIN OF ITS EMPLOYEES
UNDER THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, AN EMPLOYER, IN
1953, CONDITIONED ANY COLLECTIVE-BARGAINING AGREEMENT ON THE EMPLOYEES'
ACCEPTANCE OF TWO CLAUSES WHICH THEY WERE UNWILLING TO ACCEPT:  (1) A
"BALLOT" CLAUSE CALLING FOR A PRE-STRIKE SECRET VOTE OF SUCH EMPLOYEES
(UNION AND NONUNION) AS TO THE EMPLOYER'S LAST OFFER, AND (2) A
"RECOGNITION" CLAUSE WHICH EXCLUDED, AS A PARTY TO THE CONTRACT, THE
INTERNATIONAL UNION WHICH HAD BEEN CERTIFIED BY THE NATIONAL LABOR
RELATIONS BOARD AS THE EMPLOYEES' EXCLUSIVE BARGAINING AGENT AND
SUBSTITUTED FOR IT THE AGENT'S UNCERTIFIED LOCAL AFFILIATE.  THE BOARD
HELD THAT THE EMPLOYER'S INSISTENCE UPON EITHER OF SUCH CLAUSES AS A
CONDITION OF ITS EXECUTING THE COLLECTIVE-BARGAINING CONTRACT AS TO
WAGES, HOURS AND OTHER CONDITIONS OF EMPLOYMENT AMOUNTED TO A REFUSAL
TO BARGAIN, IN VIOLATION OF SEC. 8(A)(5) OF THE ACT, AS AMENDED, AND IT
ORDERED THE EMPLOYER TO CEASE AND DESIST FROM SUCH INSISTENCE.  HELD:
THE BOARD'S ORDER IS SUSTAINED.  PP. 343-350. 

(A)  READ TOGETHER, SECS. 8(A)(5) AND 8(D) ESTABLISH THE OBLIGATION
OF THE EMPLOYER AND THE REPRESENTATIVE OF ITS EMPLOYEES TO BARGAIN WITH
EACH OTHER IN GOOD FAITH WITH RESPECT TO "WAGES, HOURS, AND OTHER TERMS
AND CONDITIONS OF EMPLOYMENT"; THAT DUTY IS LIMITED TO THOSE SUBJECTS;
AND, WITHIN THAT AREA, NEITHER PARTY IS OBLIGATED TO YIELD.  AS TO
OTHER MATTERS, EACH PARTY IS FREE TO BARGAIN OR NOT TO BARGAIN, AND TO
AGREE OR NOT TO AGREE.  PP. 348-349. 

(B)  THAT THE EMPLOYER HAS BARGAINED IN GOOD FAITH WITH RESPECT TO
SUBJECTS OF MANDATORY BARGAINING DOES NOT LICENSE IT TO REFUSE TO ENTER
INTO A COLLECTIVE-BARGAINING CONTRACT ON THE GROUND THAT THE CONTRACT
DOES NOT INCLUDE SOME PROPOSAL WHICH IN TURN IS NOT A SUBJECT OF
MANDATORY BARGAINING.  SUCH REFUSAL IS, IN SUBSTANCE, A REFUSAL TO
BARGAIN ON THE SUBJECTS WHICH ARE WITHIN THE SCOPE OF MANDATORY
BARGAINING.  P. 349. 

(C)  THE TWO CLAUSES IN QUESTION WERE LAWFUL, AND THE EMPLOYER HAD A
RIGHT TO PROPOSE THEM; BUT IT COULD NOT LAWFULLY INSIST UPON THEM AS A
CONDITION TO ITS ENTERING A COLLECTIVE-BARGAINING CONTRACT.   P. 349. 

(D)  THE "BALLOT" CLAUSE HERE INVOLVED DOES NOT DEAL WITH "WAGES,
HOURS, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT" AND, THEREFORE, IS
NOT A SUBJECT OF MANDATORY BARGAINING.  PP. 349-350. 

(E)  THE "RECOGNITION" CLAUSE HERE INVOLVED DOES NOT DEAL WITH
"WAGES, HOURS, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT" AND,
THEREFORE, IS NOT A SUBJECT OF MANDATORY BARGAINING.  P. 350. 

NATIONAL LABOR RELATIONS BOARD V. WOOSTER DIVISION OF BORG-WARNER CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

IN THESE CASES AN EMPLOYER INSISTED THAT ITS COLLECTIVE-BARGAINING
CONTRACT WITH CERTAIN OF ITS EMPLOYEES INCLUDE:  (1) A "BALLOT" CLAUSE
CALLING FOR A PRE-STRIKE SECRET VOTE OF THOSE EMPLOYEES (UNION AND
NONUNION) AS TO THE EMPLOYER'S LAST OFFER, AND (2) A "RECOGNITION"
CLAUSE WHICH EXCLUDED, AS A PARTY TO THE CONTRACT, THE INTERNATIONAL
UNION WHICH HAD BEEN CERTIFIED BY THE NATIONAL LABOR RELATIONS BOARD AS
THE EMPLOYEES' EXCLUSIVE BARGAINING AGENT, AND SUBSTITUTED FOR IT THE
AGENT'S UNCERTIFIED LOCAL AFFILIATE.  THE BOARD HELD THAT THE
EMPLOYER'S INSISTENCE UPON EITHER OF SUCH CLAUSES AMOUNTED TO A REFUSAL
TO BARGAIN, IN VIOLATION OF SEC. 8(A)(5) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED.  (FN1)  THE ISSUE TURNS ON WHETHER EITHER OF
THESE CLAUSES COMES WITHIN THE SCOPE OF MANDATORY COLLECTIVE BARGAINING
AS DEFINED IN SEC. 8(D) OF THE ACT.  (FN2)  FOR THE REASONS HEREAFTER
STATED, WE AGREE WITH THE BOARD THAT NEITHER CLAUSE COMES WITHIN THAT
DEFINITION.  THEREFORE, WE SUSTAIN THE BOARD'S ORDER DIRECTING THE
EMPLOYER TO CEASE INSISTING UPON EITHER CLAUSE AS A CONDITION PRECEDENT
TO ACCEPTING ANY COLLECTIVE-BARGAINING CONTRACT. 

LATE IN 1952, THE INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO (HERE CALLED
INTERNATIONAL) WAS CERTIFIED BY THE BOARD TO THE WOOSTER (OHIO)
DIVISION OF THE BORG-WARNER CORPORATION (HERE CALLED THE COMPANY) AS
THE ELECTED REPRESENTATIVE OF AN APPROPRIATE UNIT OF THE COMPANY'S
EMPLOYEES.  SHORTLY THEREAFTER, INTERNATIONAL CHARTERED LOCAL NO. 1239,
UAW-CIO (HERE CALLED THE LOCAL).  TOGETHER THE UNIONS PRESENTED THE
COMPANY WITH A COMPREHENSIVE COLLECTIVE-BARGAINING AGREEMENT.  IN THE
"RECOGNITION" CLAUSE, THE UNIONS DESCRIBED THEMSELVES AS BOTH THE
"INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA AND ITS LOCAL UNION NO. 1239, U.A.W.
C.I.O.  ...  ." 

THE COMPANY SUBMITTED A COUNTERPROPOSAL WHICH RECOGNIZED AS THE SOLE
REPRESENTATIVE OF THE EMPLOYEES "LOCAL UNION 1239, AFFILIATED WITH THE
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO)."  THE UNIONS' NEGOTIATORS
OBJECTED BECAUSE SUCH A CLAUSE DISREGARDED THE BOARD'S CERTIFICATION OF
INTERNATIONAL AS THE EMPLOYEES' REPRESENTATIVE.  THE NEGOTIATORS
DECLARED THAT THE EMPLOYEES WOULD ACCEPT NO AGREEMENT WHICH EXCLUDED
INTERNATIONAL AS A PARTY. 

THE COMPANY'S COUNTERPROPOSAL ALSO CONTAINED THE "BALLOT" CLAUSE,
QUOTED IN FULL IN THE MARGIN.  (FN3)  IN SUMMARY, THIS CLAUSE PROVIDED
THAT, AS TO ALL NONARBITRABLE ISSUES (WHICH EVENTUALLY INCLUDED
MODIFICATION, AMENDMENT OR TERMINATION OF THE CONTRACT), THERE WOULD BE
A 30-DAY NEGOTIATION PERIOD AFTER WHICH, BEFORE THE UNION COULD STRIKE,
THERE WOULD HAVE TO BE A SECRET BALLOT TAKEN AMONG ALL EMPLOYEES IN THE
UNIT (UNION AND NONUNION) ON THE COMPANY'S LAST OFFER.  IN THE EVENT A
MAJORITY OF THE EMPLOYEES REJECTED THE COMPANY'S LAST OFFER, THE
COMPANY WOULD HAVE AN OPPORTUNITY, WITHIN 72 HOURS, OF MAKING A NEW
PROPOSAL AND HAVING A VOTE ON IT PRIOR TO ANY STRIKE.  THE UNIONS'
NEGOTIATORS ANNOUNCED THEY WOULD NOT ACCEPT THIS CLAUSE "UNDER ANY
CONDITIONS." 

FROM THE TIME THAT THE COMPANY FIRST PROPOSED THESE CLAUSES, THE
EMPLOYEES' REPRESENTATIVES THUS MADE IT CLEAR THAT EACH WAS WHOLLY
UNACCEPTABLE.  THE COMPANY'S REPRESENTATIVES MADE IT EQUALLY CLEAR THAT
NO AGREEMENT WOULD BE ENTERED INTO BY IT UNLESS THE AGREEMENT CONTAINED
BOTH CLAUSES.  IN VIEW OF THIS IMPASSE, THERE WAS LITTLE FURTHER
DISCUSSION OF THE CLAUSES, ALTHOUGH THE PARTIES CONTINUED TO BARGAIN AS
TO OTHER MATTERS.  THE COMPANY SUBMITTED A "PACKAGE" PROPOSAL COVERING
ECONOMIC ISSUES BUT MADE THE OFFER CONTINGENT UPON THE SATISFACTORY
SETTLEMENT OF "ALL OTHER ISSUES ...  ."  THE "PACKAGE" INCLUDED BOTH OF
THE CONTROVERSIAL CLAUSES.  ON MARCH 15, 1953, THE UNIONS REJECTED THAT
PROPOSAL AND THE MEMBERSHIP VOTED TO STRIKE ON MARCH 20 UNLESS A
SETTLEMENT WERE REACHED BY THEN.  NONE WAS REACHED AND THE UNIONS
STRUCK.  NEGOTIATIONS, NEVERTHELESS, CONTINUED.  ON APRIL 21, THE
UNIONS ASKED THE COMPANY WHETHER THE LATTER WOULD WITHDRAW ITS DEMAND
FOR THE "BALLOT" AND "RECOGNITION" CLAUSES IF THE UNIONS ACCEPTED ALL
OTHER PENDING REQUIREMENTS OF THE COMPANY.  THE COMPANY DECLINED AND
AGAIN INSISTED UPON ACCEPTANCE OF ITS "PACKAGE," INCLUDING BOTH
CLAUSES.  FINALLY, ON MAY 5, THE LOCAL, UPON THE RECOMMENDATION OF
INTERNATIONAL, GAVE IN AND ENTERED INTO AN AGREEMENT CONTAINING BOTH
CONTROVERSIAL CLAUSES. 

IN THE MEANTIME, INTERNATIONAL HAD FILED CHARGES WITH THE BOARD
CLAIMING THAT THE COMPANY, BY THE ABOVE CONDUCT, WAS GUILTY OF AN
UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC. 8(A)(5) OF THE ACT. 
THE TRIAL EXAMINER FOUND NO BAD FAITH ON EITHER SIDE.  HOWEVER, HE
FOUND THAT THE COMPANY HAD MADE IT A CONDITION PRECEDENT TO ITS
ACCEPTANCE OF ANY AGREEMENT THAT THE AGREEMENT INCLUDE BOTH THE
"BALLOT" AND THE "RECOGNITION" CLAUSES.  FOR THAT REASON, HE
RECOMMENDED THAT THE COMPANY BE FOUND GUILTY OF A PER SE UNFAIR LABOR
PRACTICE IN VIOLATION OF SEC. 8(A)(5).  HE REASONED THAT, BECAUSE EACH
OF THE CONTROVERSIAL CLAUSES WAS OUTSIDE OF THE SCOPE OF MANDATORY
BARGAINING AS DEFINED IN SEC. 8(D) OF THE ACT, THE COMPANY'S INSISTENCE
UPON THEM, AGAINST THE PERMISSIBLE OPPOSITION OF THE UNIONS, AMOUNTED
TO A REFUSAL TO BARGAIN AS TO THE MANDATORY SUBJECTS OF COLLECTIVE
BARGAINING.  THE BOARD, WITH TWO MEMBERS DISSENTING, ADOPTED THE
RECOMMENDATIONS OF THE EXAMINER.  113 N.L.R.B. 1288, 1298.  IN RESPONSE
TO THE BOARD'S PETITION TO ENFORCE ITS ORDER, THE COURT OF APPEALS SET
ASIDE THAT PORTION OF THE ORDER RELATING TO THE "BALLOT" CLAUSE, BUT
UPHELD THE BOARD'S ORDER AS TO THE "RECOGNITION" CLAUSE.  236 F.2D
898. 

BECAUSE OF THE IMPORTANCE OF THE ISSUES AND BECAUSE OF ALLEGED
CONFLICTS AMONG THE COURTS OF APPEALS, (FN4) WE GRANTED THE BOARD'S
PETITION FOR CERTIORARI IN NO. 53, RELATING TO THE "BALLOT" CLAUSE, AND
THE COMPANY'S CROSS-PETITION IN NO. 78, RELATING TO THE "RECOGNITION"
CLAUSE.  353 U.S. 907. 

WE TURN FIRST TO THE RELEVANT PROVISIONS OF THE STATUTE.  SECTION
8(A)(5) MAKES IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER "TO REFUSE TO
BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF HIS EMPLOYEES  ...
."  (FN5)  SECTION 8(D) DEFINES COLLECTIVE BARGAINING AS FOLLOWS: 

"(D)  FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS
THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT, OR ANY
QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN CONTRACT
INCORPORATING ANY AGREEMENT IF REQUESTED BY EITHER PARTY, BUT SUCH
OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR
REQUIRE THE MAKING OF A CONCESSION  ... ."  61 STAT. 142, 29 U.S.C.
SEC.  158(D). 

READ TOGETHER, THESE PROVISIONS ESTABLISH THE OBLIGATION OF THE
EMPLOYER AND THE REPRESENTATIVE OF ITS EMPLOYEES TO BARGAIN WITH EACH
OTHER IN GOOD FAITH WITH RESPECT TO "WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT  ...  ."  THE DUTY IS LIMITED TO THOSE
SUBJECTS, AND WITHIN THAT AREA NEITHER PARTY IS LEGALLY OBLIGATED TO
YIELD.  LABOR BOARD V. AMERICAN INSURANCE CO., 343 U.S. 395.  AS TO
OTHER MATTERS, HOWEVER, EACH PARTY IS FREE TO BARGAIN OR NOT TO
BARGAIN, AND TO AGREE OR NOT TO AGREE. 

THE COMPANY'S GOOD FAITH HAS MET THE REQUIREMENTS OF THE STATUTE AS
TO THE SUBJECTS OF MANDATORY BARGAINING.  BUT THAT GOOD FAITH DOES NOT
LICENSE THE EMPLOYER TO REFUSE TO ENTER INTO AGREEMENTS ON THE GROUND
THAT THEY DO NOT INCLUDE SOME PROPOSAL WHICH IS NOT A MANDATORY SUBJECT
OF BARGAINING.  WE AGREE WITH THE BOARD THAT SUCH CONDUCT IS, IN
SUBSTANCE, A REFUSAL TO BARGAIN ABOUT THE SUBJECTS THAT ARE WITHIN THE
SCOPE OF MANDATORY BARGAINING.  THIS DOES NOT MEAN THAT BARGAINING IS
TO BE CONFINED TO THE STATUTORY SUBJECTS.  EACH OF THE TWO
CONTROVERSIAL CLAUSES IS LAWFUL IN ITSELF.  (FN6)  EACH WOULD BE
ENFORCEABLE IF AGREED TO BY THE UNIONS.  BUT IT DOES NOT FOLLOW THAT,
BECAUSE THE COMPANY MAY PROPOSE THESE CLAUSES, IT CAN LAWFULLY INSIST
UPON THEM AS A CONDITION TO ANY AGREEMENT. 

SINCE IT IS LAWFUL TO INSIST UPON MATTERS WITHIN THE SCOPE OF
MANDATORY BARGAINING AND UNLAWFUL TO INSIST UPON MATTERS WITHOUT, THE
ISSUE HERE IS WHETHER EITHER THE "BALLOT" OR THE "RECOGNITION" CLAUSE
IS A SUBJECT WITHIN THE PHRASE "WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT" WHICH DEFINES MANDATORY BARGAINING.  THE
"BALLOT" CLAUSE IS NOT WITHIN THAT DEFINITION.  IT RELATES ONLY TO THE
PROCEDURE TO BE FOLLOWED BY THE EMPLOYEES AMONG THEMSELVES BEFORE THEIR
REPRESENTATIVE MAY CALL A STRIKE OR REFUSE A FINAL OFFER.  IT SETTLES
NO TERM OR CONDITION OF EMPLOYMENT - IT MERELY CALLS FOR AN ADVISORY
VOTE OF THE EMPLOYEES.  IT IS NOT A PARTIAL "NO-STRIKE" CLAUSE.  A "NO
STRIKE" CLAUSE PROHIBITS THE EMPLOYEES FROM STRIKING DURING THE LIFE OF
THE CONTRACT.  IT REGULATES THE RELATIONS BETWEEN THE EMPLOYER AND THE
EMPLOYEES.  SEE LABOR BOARD V. AMERICAN INSURANCE CO., SUPRA, AT 408,
N. 22.  THE "BALLOT" CLAUSE, ON THE OTHER HAND, DEALS ONLY WITH
RELATIONS BETWEEN THE EMPLOYEES AND THEIR UNIONS.  IT SUBSTANTIALLY
MODIFIES THE COLLECTIVE-BARGAINING SYSTEM PROVIDED FOR IN THE STATUTE
BY WEAKENING THE INDEPENDENCE OF THE "REPRESENTATIVE" CHOSEN BY THE
EMPLOYEES.  IT ENABLES THE EMPLOYER, IN EFFECT, TO DEAL WITH ITS
EMPLOYEES RATHER THAN WITH THEIR STATUTORY REPRESENTATIVE.  CF. MEDO
PHOTO CORP. V. LABOR BOARD, 321 U.S. 678. 

THE "RECOGNITION" CLAUSE LIKEWISE DOES NOT COME WITHIN THE DEFINITION
OF MANDATORY BARGAINING.  THE STATUTE REQUIRES THE COMPANY TO BARGAIN
WITH THE CERTIFIED REPRESENTATIVE OF ITS EMPLOYEES.  IT IS AN EVASION
OF THAT DUTY TO INSIST THAT THE CERTIFIED AGENT NOT BE A PARTY TO THE
COLLECTIVE-BARGAINING CONTRACT.  THE ACT DOES NOT PROHIBIT THE
VOLUNTARY ADDITION OF A PARTY, BUT THAT DOES NOT AUTHORIZE THE EMPLOYER
TO EXCLUDE THE CERTIFIED REPRESENTATIVE FROM THE CONTRACT. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IN NO. 53 IS
REVERSED AND THE CAUSE REMANDED FOR DISPOSITION CONSISTENT WITH THIS
OPINION.  IN NO. 78, THE JUDGMENT IS AFFIRMED.  NO. 53 - REVERSED AND
REMANDED.  NO. 78 - AFFIRMED. 

FN1  "SEC.  8.  (A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER: 

     *         * *         *         * 

"(5)  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A). 

     *         *         *     *         * 

"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  ...  ."  61 STAT. 140, 141, 143, 29
U.S.C. SECS. 158(A)(5), 159(A). 

FN2  SEE SEC. 8(D) AS SET FORTH IN THE TEXT OF THE OPINION, INFRA, P.
348. 

FN3  "5.  RESPONSIBILITIES OF THE COMPANY AND THE UNION. 

"5.4  IT IS AGREED BY BOTH THE COMPANY AND THE UNION THAT IT IS THEIR
MUTUAL INTENT TO PROVIDE PEACEFUL MEANS FOR THE SETTLEMENT OF ALL
DISPUTES THAT MAY ARISE BETWEEN THEM.  TO ASSIST BOTH PARTIES TO CARRY
OUT THIS INTENT IN GOOD FAITH, IT IS AGREED THAT IT IS ESSENTIAL THAT
THREE BASIC STEPS BE TAKEN WITH RESPECT TO EACH DISPUTE, IN ORDER TO
PERMIT THE GREATEST OPPORTUNITY FOR SATISFACTORY SETTLEMENT:  SUCH
STEPS SHALL INCLUDE (1) A CLEAR DEFINITION OF THE ISSUE OR ISSUES,
OFFICIALLY MADE KNOWN TO ALL EMPLOYEES IN THE BARGAINING UNIT; (2) A
REASONABLE PERIOD OF GOOD FAITH BARGAINING ON THE ISSUES AS DEFINED,
AFTER SUCH ISSUES HAVE BEEN MADE KNOWN TO ALL EMPLOYEES IN THE
BARGAINING UNIT; AND (3) AN OPPORTUNITY FOR ALL EMPLOYEES IN THE
BARGAINING UNIT TO VOTE, BY SECRET, IMPARTIALLY SUPERVISED, WRITTEN
BALLOT, ON WHETHER TO ACCEPT OR REJECT THE COMPANY'S LAST OFFER, AND ON
ANY SUBSEQUENT OFFERS MADE. 

"5.5  IT IS MUTUALLY AGREED THAT THE DEFINITION OF ISSUES REFERRED TO
IN SECTION 5.4 WILL INCLUDE THE PROPOSALS AND COUNTER-PROPOSALS OF EACH
PARTY; THAT THE REASONABLE PERIOD OF GOOD FAITH BARGAINING REFERRED TO
IN SECTION 5.4 SHALL BE AT LEAST 30 DAYS, WITH FULL DISCUSSION OF THE
ISSUE TAKING PLACE DURING THAT PERIOD; AND THAT THE SECRET WRITTEN
BALLOT REFERRED TO IN SECTION 5.4 SHALL BE SUPERVISED BY A
REPRESENTATIVE OF THE UNITED STATES MEDIATION AND CONCILIATION SERVICE,
OR BY SOME OTHER PARTY MUTUALLY AGREED UPON BY THE COMPANY AND THE
UNION.  THE COMPANY AND THE UNION FURTHER AGREE THAT SUCH A BALLOT
SHALL BE TAKEN ON COMPANY PREMISES, AT REASONABLE AND CONVENIENT TIMES,
AND WITH PROPER SAFEGUARDS, SIMILAR TO THOSE OBSERVED IN NLRB
ELECTIONS, BEING TAKEN TO INSURE FREEDOM OF CHOICE AND A FAIR
ELECTION.    "5.6  IT IS FURTHER MUTUALLY AGREED THAT IF A MAJORITY OF
EMPLOYEES IN THE BARGAINING UNIT REJECT THE COMPANY'S LAST OFFER, AND
THE COMPANY MAKES A SUBSEQUENT OFFER WITHIN 72 HOURS FROM THE TIME THE
RESULTS OF THE ELECTION ARE KNOWN, ANOTHER SECRET, IMPARTIALLY
SUPERVISED WRITTEN BALLOT WILL BE TAKEN WITHIN THE FOLLOWING 72 HOURS. 

"5.7  IT IS FURTHER MUTUALLY AGREED THAT THE QUESTION OF WHETHER OR
NOT THIS AGREEMENT IS TO BE TERMINATED IS ONE OF THE ISSUES SUBJECT TO
VOTE BY SUCH A SECRET, IMPARTIALLY SUPERVISED, WRITTEN BALLOT.    "5.8
IT IS FURTHER MUTUALLY AGREED THAT DURING THE LIFE OF THIS AGREEMENT
THE COMPANY WILL NOT ENGAGE IN ANY FORM OF LOCKOUT, AND THE UNION WILL
NOT CAUSE OR PERMIT THE MEMBERS OF THE BARGAINING UNIT TO TAKE PART IN
ANY SIT-DOWN, STAY-IN, OR SLOW-DOWN, OR ANY CURTAILMENT OF WORK OR
RESTRICTION OF PRODUCTION OR INTERFERENCE WITH PRODUCTION, OR TAKE PART
IN ANY STRIKE OR STOPPAGE OF ANY KIND, OR PICKET THE PLANT, ON ANY
MATTER SUBJECT TO ARBITRATION, AND NOT IN ANY OTHER MATTER, UNTIL ALL
THE BARGAINING PROCEDURE OUTLINED IN THIS AGREEMENT, (INCLUDING THE
GRIEVANCE PROCEDURE, WHERE APPLICABLE, AND IN ALL CASES THE THREE STEPS
OUTLINED IN THIS ARTICLE), HAVE BEEN COMPLETELY FULFILLED."  113
N.L.R.B. 1288, 1310-1311. 

FN4  LABOR BOARD V. DARLINGTON VENEER CO., 236 F.2D 85 (C.A. 4TH
CIR.); LABOR BOARD V. CORSICANA COTTON MILLS, 178 F.2D 344 (C.A. 5TH
CIR.).  CF. ALLIS-CHALMERS MFG. CO. V. LABOR BOARD, 213 F.2D 374 (C.A.
7TH CIR.). 

FN5  SEE NOTE 1, SEPRA. 

FN6  SEE SECS. 201(C) AND 203(C) OF THE ACT, 61 STAT. 152, 154, 29
U.S.C. SECS. 171(C) AND 173(C). 

MR. JUSTICE FRANKFURTER JOINS THIS OPINION INSOFAR AS IT HOLDS THAT
INSISTENCE BY THE COMPANY ON THE "RECOGNITION" CLAUSE, IN CONFLICT WITH
THE PROVISIONS OF THE ACT REQUIRING AN EMPLOYER TO BARGAIN WITH THE
REPRESENTATIVE OF HIS EMPLOYEES, CONSTITUTED AN UNFAIR LABOR PRACTICE. 
HE AGREES WITH THE VIEWS OF MR. JUSTICE HARLAN REGARDING THE "BALLOT"
CLAUSE.  THE SUBJECT MATTER OF THAT CLAUSE IS NOT SO CLEARLY OUTSIDE
THE REASONABLE RANGE OF INDUSTRIAL BARGAINING AS TO ESTABLISH A REFUSAL
TO BARGAIN IN GOOD FAITH, AND IS NOT PROHIBITED SIMPLY BECAUSE NOT
DEEMED TO BE WITHIN THE RATHER VAGUE SCOPE OF THE OBLIGATORY PROVISIONS
OF SEC. 8(D). 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK AND MR. JUSTICE WHITTAKER
JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE THAT THE COMPANY'S INSISTENCE ON THE "RECOGNITION" CLAUSE
CONSTITUTED AN UNFAIR LABOR PRACTICE, BUT REACH THAT CONCLUSION BY A
DIFFERENT ROUTE FROM THAT TAKEN BY THE COURT.  HOWEVER, IN LIGHT OF THE
FINDING BELOW THAT THE COMPANY BARGAINED IN "GOOD FAITH," I DISSENT
FROM THE VIEW THAT ITS INSISTENCE ON THE "BALLOT" CLAUSE CAN SUPPORT
THE CHARGE OF AN UNFAIR LABOR PRACTICE. 

OVER TWENTY YEARS AGO THIS COURT SAID IN ITS FIRST DECISION UNDER THE
WAGNER ACT:  "THE THEORY OF THE ACT IS THAT FREE OPPORTUNITY FOR
NEGOTIATION WITH ACCREDITED REPRESENTATIVES OF EMPLOYEES IS LIKELY TO
PROMOTE INDUSTRIAL PEACE AND MAY BRING ABOUT THE ADJUSTMENTS AND
AGREEMENTS WHICH THE ACT IN ITSELF DOES NOT ATTEMPT TO COMPEL."  LABOR
BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 45.   TODAY'S
DECISION PROCEEDS ON ASSUMPTIONS WHICH I DEEM INCOMPATIBLE WITH THIS
BASIC PHILOSOPHY OF THE ORIGINAL LABOR ACT, WHICH HAS RETAINED ITS
VITALITY UNDER THE AMENDMENTS EFFECTED BY THE TAFT-HARTLEY ACT.  SEE
LABOR BOARD V. AMERICAN NATIONAL INSURANCE CO., 343 U.S. 395, 401-404. 
I FEAR THAT THE DECISION MAY OPEN THE DOOR TO AN INTRUSION BY THE BOARD
INTO THE SUBSTANTIVE ASPECTS OF THE BARGAINING PROCESS WHICH GOES
BEYOND ANYTHING CONTEMPLATED BY THE NATIONAL LABOR RELATIONS ACT OR
SUGGESTED IN THIS COURT'S PRIOR DECISIONS UNDER IT. 

THE COURT CONSIDERS BOTH THE "BALLOT" AND "RECOGNITION" CLAUSES TO BE
OUTSIDE THE SCOPE OF THE MANDATORY BARGAINING PROVISIONS OF SEC. 8(D)
OF THE ACT, WHICH IN CONNECTION WITH SECS. 8(A)(5) AND 8(B)(3) IMPOSES
AN OBLIGATION ON AN EMPLOYER AND A UNION TO "  ...  CONFER IN GOOD
FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND CONDITIONS OF
EMPLOYMENT  ...  ."  FROM THIS CONCLUSION IT IS SAID TO FOLLOW THAT
ALTHOUGH THE COMPANY WAS FREE TO "PROPOSE" THESE CLAUSES AND "BARGAIN"
OVER THEM, IT COULD NOT "INSIST" ON THEIR INCLUSION IN THE COLLECTIVE
BARGAINING CONTRACT AS THE PRICE OF AGREEMENT, AND THAT SUCH INSISTENCE
WAS A PER SE UNFAIR LABOR PRACTICE BECAUSE IT WAS TANTAMOUNT TO A
REFUSAL TO BARGAIN ON "MANDATORY" SUBJECTS.  AT THE SAME TIME THE COURT
ACCEPTS THE TRIAL EXAMINER'S UNCHALLENGED FINDING THAT THE COMPANY HAD
BARGAINED IN "GOOD FAITH," BOTH WITH REFERENCE TO THESE CLAUSES AND ALL
OTHER SUBJECTS, AND HOLDS THAT THE CLAUSES ARE LAWFUL IN THEMSELVES AND
"  ...  WOULD BE ENFORCEABLE IF AGREED TO BY THE UNIONS." 

PRELIMINARILY, I MUST STATE THAT I AM UNABLE TO GRASP A CONCEPT OF
"BARGAINING" WHICH ENABLES ONE TO "PROPOSE" A PARTICULAR POINT, BUT NOT
TO "INSIST" ON IT AS A CONDITION TO AGREEMENT.  THE RIGHT TO BARGAIN
BECOMES ILLUSORY IF ONE IS NOT FREE TO PRESS A PROPOSAL IN GOOD FAITH
TO THE POINT OF INSISTENCE.  SURELY ADOPTION OF SO INHERENTLY VAGUE AND
FLUID A STANDARD IS APT TO INHIBIT THE ENTIRE BARGAINING PROCESS
BECAUSE OF A PARTY'S FEAR THAT STRENUOUS ARGUMENT MIGHT SHADE INTO
FORBIDDEN INSISTENCE AND THEREBY PRODUCE A CHARGE OF AN UNFAIR LABOR
PRACTICE.  THIS WATERED-DOWN NOTION OF "BARGAINING" WHICH THE COURT
IMPORTS INTO THE ACT WITH REFERENCE TO MATTERS NOT WITHIN THE SCOPE OF
SEC. 8(D) APPEARS AS FOREIGN TO THE LABOR FIELD AS IT WOULD BE TO THE
COMMERCIAL WORLD.  TO ME ALL OF THIS ADDS UP TO SAYING THAT THE ACT
LIMITS EFFECTIVE "BARGAINING" TO SUBJECTS WITHIN THE THREE FIELDS
REFERRED TO IN SEC. 8(D), THAT IS "WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT," EVEN THOUGH THE COURT EXPRESSLY DISCLAIMS SO
HOLDING. 

I SHALL DISCUSS MY DIFFICULTIES WITH THE COURT'S OPINION IN TERMS OF
THE "BALLOT" CLAUSE.  THE "RECOGNITION" CLAUSE IS SUBJECT IN MY VIEW TO
DIFFERENT CONSIDERATIONS. 

                                        I. 

AT THE START, I QUESTION THE COURT'S CONCLUSION THAT THE "BALLOT"
CLAUSE DOES NOT COME WITHIN THE "OTHER TERMS AND CONDITIONS OF
EMPLOYMENT" PROVISION OF SEC. 8(D).  THE PHRASE IS INHERENTLY VAGUE AND
PRIOR TO THIS DECISION HAS BEEN ACCORDED BY THE BOARD AND COURTS AN
EXPANSIVE RATHER THAN A GRUDGING INTERPRETATION.  MANY MATTERS WHICH
MIGHT HAVE BEEN THOUGHT TO BE THE SOLE CONCERN OF MANAGEMENT ARE NOW
DEALT WITH AS COMPULSORY BARGAINING TOPICS.  E.G., LABOR BOARD V. J.H.
ALLISON & CO., 165 F.2D 766 (MERIT INCREASES).  AND SINCE A "NO-STRIKE"
CLAUSE IS SOMETHING ABOUT WHICH AN EMPLOYER CAN CONCEDEDLY BARGAIN TO
THE POINT OF INSISTENCE, SEE SHELL OIL CO., 77 N.L.R.B. 1306, I FIND IT
DIFFICULT TO UNDERSTAND EVEN UNDER THE COURT'S ANALYSIS OF THIS PROBLEM
WHY THE "BALLOT" CLAUSE SHOULD NOT BE CONSIDERED WITHIN THE AREA OF
BARGAINING DESCRIBED IN SEC. 8(D).  IT AFFECTS THE EMPLOYER-EMPLOYEE
RELATIONSHIP IN MUCH THE SAME WAY, IN THAT IT MAY DETERMINE THE TIMING
OF STRIKES OR EVEN WHETHER A STRIKE WILL OCCUR BY REQUIRING A VOTE TO
ASCERTAIN THE EMPLOYEES' SENTIMENT PRIOR TO THE UNION'S DECISION. 

NONETHELESS I SHALL ACCEPT THE COURT'S HOLDING THAT THIS CLAUSE IS
NOT A CONDITION OF EMPLOYMENT, FOR EVEN THOUGH THE UNION WOULD
ACCORDINGLY NOT BE OBLIGED UNDER SEC. 8(D) TO BARGAIN OVER IT, IN MY
VIEW IT DOES NOT FOLLOW THAT THE COMPANY WAS PROHIBITED FROM INSISTING
ON ITS INCLUSION IN THE COLLECTIVE BARGAINING AGREEMENT.  IN OTHER
WORDS, I THINK THE CLAUSE WAS A PERMISSIBLE, EVEN IF NOT AN OBLIGATORY,
SUBJECT OF GOOD FAITH BARGAINING. 

THE LEGISLATIVE HISTORY BEHIND THE WAGNER AND TAFT-HARTLEY ACTS
PERSUASIVELY INDICATES THAT THE BOARD WAS NEVER INTENDED TO HAVE POWER
TO PREVENT GOOD FAITH BARGAINING AS TO ANY SUBJECT NOT VIOLATIVE OF THE
PROVISIONS OR POLICIES OF THOSE ACTS.  AS A LEADING PROPONENT FOR THE
WAGNER ACT EXPLAINED: 

"WHEN THE EMPLOYEES HAVE CHOSEN THEIR ORGANIZATION, WHEN THEY HAVE
SELECTED THEIR REPRESENTATIVES, ALL THE BILL PROPOSES TO DO IS TO
ESCORT THEM TO THE DOOR OF THEIR EMPLOYER AND SAY, 'HERE THEY ARE, THE
LEGAL REPRESENTATIVES OF YOUR EMPLOYEES.'  WHAT HAPPENS BEHIND THOSE
DOORS IS NOT INQUIRED INTO, AND THE BILL DOES NOT SEEK TO INQUIRE INTO
IT."  79 CONG. REC. 7660. 

THE WAGNER ACT DID NOT CONTAIN THE "GOOD FAITH" QUALIFICATION NOW
WRITTEN INTO THE BARGAINING REQUIREMENTS OF SEC. 8(D), ALTHOUGH THIS
LACK WAS REMEDIED BY EARLY JUDICIAL INTERPRETATION WHICH IMPLIED FROM
FORMER SEC. 8(5), 49 STAT. 453, THE REQUIREMENT THAT AN EMPLOYER
BARGAIN IN GOOD FAITH.   E.G., LABOR BOARD V. GRISWOLD MFG. CO., 106
F.2D 713.  BUT APART FROM THIS ESSENTIAL CHECK ON THE BARGAINING
PROCESS, THE BOARD POSSESSED NO STATUTORY AUTHORITY TO REGULATE THE
SUBSTANTIVE SCOPE OF THE BARGAINING PROCESS INSOFAR AS LAWFUL DEMANDS
OF THE PARTIES WERE CONCERNED.  NEVERTHELESS, THE BOARD ENGAGED
OCCASIONALLY IN THE PRACTICE OF DETERMINING THAT CERTAIN CONTRACT TERMS
URGED BY UNIONS WERE CONDITIONS OF EMPLOYMENT AND THEREBY IMPOSING ON
EMPLOYERS AN AFFIRMATIVE DUTY TO BARGAIN AS TO SUCH TERMS RATHER THAN
INSIST UPON THEIR UNILATERAL DETERMINATION, E.G., SINGER MFG. CO., 24
N.L.R.B. 444, OR CONVERSELY OF DETERMINING THAT CERTAIN CLAUSES WERE
NOT CONDITIONS OF EMPLOYMENT AND THEREBY PROHIBITING AN EMPLOYER FROM
BARGAINING OVER THEM.  E.G., JASPER BLACKBURN PRODUCTS CORP., 21
N.L.R.B. 1240. 

THESE EARLY INTRUSIONS OF THE BOARD INTO THE SUBSTANTIVE ASPECTS OF
THE BARGAINING PROCESS BECAME A MATTER OF CONCERN TO CONGRESS, AND IN
THE 1947 TAFT-HARTLEY AMENDMENTS TO THE WAGNER ACT, CONGRESS TOOK STEPS
TO CURTAIL THEM BY WRITING INTO SEC. 8(D) THE PARTICULAR FIELDS AS TO
WHICH IT CONSIDERED BARGAINING SHOULD BE REQUIRED.  THE BILL ORIGINALLY
PASSED BY THE HOUSE OF REPRESENTATIVES CONTAINED A DEFINITION OF THE
TERM "COLLECTIVE BARGAINING" WHICH RESTRICTED THE AREA OF COMPULSORY
NEGOTIATION TO SPECIFIED SUBJECTS, SUCH AS WAGES, HOURS, DISCHARGE OR
SENIORITY PROVISIONS, SAFETY CONDITIONS, AND VACATIONS.  SEC. 2(11),
H.R. 3020, 80TH CONG., 1ST SESS.  THE HOUSE REPORT ON THIS BILL,
SUBMITTED BY ITS SPONSOR, NOTED THAT THE SUGGESTED PROVISION WOULD
REQUIRE UNIONS AND EMPLOYERS TO BARGAIN COLLECTIVELY AS TO SPECIFIED
TOPICS AND WOULD LIMIT THAT AREA "  ...  TO MATTERS OF INTEREST TO THE
EMPLOYER AND TO THE INDIVIDUAL MAN AT WORK."  H.R. REP. NO. 245, 80TH
CONG., 1ST SESS. 7.  IN EXPLAINING THE NEED FOR SPECIFYING THE TOPICS
OVER WHICH BARGAINING WAS MANDATORY, AND THEREBY ESTABLISHING
"OBJECTIVE STANDARDS" FOR THE BOARD TO FOLLOW, THE REPORT CONTINUES: 

"  ...  THE PRESENT BOARD HAS GONE VERY FAR, IN THE GUISE OF
DETERMINING WHETHER OR NOT EMPLOYERS HAD BARGAINED IN GOOD FAITH, IN
SETTING ITSELF UP AS THE JUDGE OF WHAT CONCESSIONS AN EMPLOYER MUST
MAKE AND OF THE PROPOSALS AND COUNTERPROPOSALS THAT HE MAY OR MAY NOT
MAKE  ...  .  DISCUSSION OF BOARD CASES. 

     *         *   *         *         * 

"THESE CASES SHOW THAT UNLESS CONGRESS WRITES INTO THE LAW GUIDES FOR
THE BOARD TO FOLLOW, THE BOARD MAY ATTEMPT TO CARRY THIS PROCESS STILL
FURTHER AND SEEK TO CONTROL MORE AND MORE THE TERMS OF COLLECTIVE
BARGAINING AGREEMENTS."  ID., AT 19-20. 

THE SENATE AMENDMENT TO THE HOUSE BILL RECAST THESE PROVISIONS TO
READ IN SUBSTANTIALLY THE FORM OF PRESENT SEC. 8(D).  THAT IS, THE
SENATE PROVISIONS CONTAINED NO ELABORATION OF COMPULSORY BARGAINING
TOPICS, BUT USED THE GENERAL PHRASE:  "WAGES, HOURS, AND OTHER TERMS
AND CONDITIONS OF EMPLOYMENT."  IN COMMENTING ON THESE CHANGES, THE
MANAGERS OF THE HOUSE CONFERENCE APPENDED A STATEMENT TO THE HOUSE
CONFERENCE REPORT WHICH OBSERVED: 

"  ...  THE SENATE AMENDMENT, WHILE IT DID NOT PRESCRIBE A PURELY
OBJECTIVE TEST OF WHAT CONSTITUTED COLLECTIVE BARGAINING, AS DID THE
HOUSE BILL, HAD TO A VERY SUBSTANTIAL EXTENT THE SAME EFFECT AS THE
HOUSE BILL IN THIS REGARD, SINCE IT REJECTED, AS A FACTOR IN
DETERMINING GOOD FAITH, THE TEST OF MAKING A CONCESSION AND THUS
PREVENTED THE BOARD FROM DETERMINING THE MERITS OF THE POSITIONS OF THE
PARTIES."  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 34. 

THE FOREGOING HISTORY EVINCES A CLEAR CONGRESSIONAL PURPOSE TO ASSURE
THE PARTIES TO A PROPOSED COLLECTIVE BARGAINING AGREEMENT THE GREATEST
DEGREE OF FREEDOM IN THEIR NEGOTIATIONS, AND TO REQUIRE THE BOARD TO
REMAIN AS ALOOF AS POSSIBLE FROM REGULATION OF THE BARGAINING PROCESS
IN ITS SUBSTANTIVE ASPECTS. 

THE DECISION OF THIS COURT IN 1952 IN LABOR BOARD V. AMERICAN
NATIONAL INSURANCE CO., SUPRA, WAS FULLY IN ACCORD WITH THIS
LEGISLATIVE BACKGROUND IN HOLDING THAT THE BOARD LACKED POWER TO ORDER
AN EMPLOYER TO CEASE BARGAINING OVER A PARTICULAR CLAUSE BECAUSE SUCH
BARGAINING UNDER THE BOARD'S VIEW, ENTIRELY APART FROM A SHOWING OF BAD
FAITH, CONSTITUTED PER SE AN UNFAIR LABOR PRACTICE.  THERE AN EMPLOYER
INSISTED DURING NEGOTIATIONS UPON THE UNION'S ACCEPTANCE OF A
"MANAGEMENT FUNCTIONS" CLAUSE WHICH WOULD VEST EXCLUSIVELY IN
MANAGEMENT DURING THE PERIOD OF THE COLLECTIVE BARGAINING AGREEMENT THE
RIGHT TO SELECT, HIRE, AND PROMOTE EMPLOYEES, TO DISCHARGE FOR CAUSE
AND MAINTAIN DISCIPLINE, AND TO DETERMINE WORK SCHEDULES.  THE
ARGUMENTS ADVANCED BY THE BOARD IN THAT CASE IN SUPPORT OF ITS
CONCLUSION THAT THE EMPLOYER HAD COMMITTED AN UNFAIR LABOR PRACTICE
THROUGH ITS INSISTENCE ON THIS CLAUSE WERE STRIKINGLY SIMILAR TO THOSE
BEFORE US HERE.  IT WAS SAID THAT SUCH A CLAUSE WAS "IN DEROGATION OF"
STATUTORY RIGHTS TO BARGAIN GIVEN TO THE EMPLOYEES, AND THAT INSISTENCE
UPON IT WAS TANTAMOUNT TO REFUSAL TO BARGAIN AS TO ALL STATUTORY
SUBJECTS COVERED BY IT. 

BUT THIS COURT, IN REVERSING THE BOARD, EMPHASIZED THAT FLEXIBILITY
WAS AN ESSENTIAL CHARACTERISTIC OF THE PROCESS OF COLLECTIVE
BARGAINING, AND THAT WHETHER THE TOPICS CONTAINED IN THE DISPUTED
CLAUSE SHOULD BE ALLOCATED EXCLUSIVELY TO MANAGEMENT OR DECIDED JOINTLY
BY MANAGEMENT AND UNION "  ...  IS AN ISSUE FOR DETERMINATION ACROSS
THE BARGAINING TABLE, NOT BY THE BOARD."  343 U.S., AT 409.  IT IS TRUE
THAT THE DISPUTED CLAUSE RELATED TO MATTERS WHICH CONCEDEDLY WERE
"TERMS AND CONDITIONS OF EMPLOYMENT," BUT THE BROAD RATIONALE OF THE
COURT'S OPINION UNDERCUTS AN ATTEMPT TO DISTINGUISH THE CASE ON ANY
SUCH GROUND.  "CONGRESS PROVIDED EXPRESSLY THAT THE BOARD SHOULD NOT
PASS UPON THE DESIRABILITY OF THE SUBSTANTIVE TERMS OF LABOR AGREEMENTS
...  .  THE DUTY TO BARGAIN COLLECTIVELY IS TO BE ENFORCED BY
APPLICATION OF THE GOOD FAITH BARGAINING STANDARDS OF SECTION 8(D) TO
THE FACTS OF EACH CASE  ...  ."  343 U.S., AT 408-409. 

I THEREFORE CANNOT ESCAPE THE VIEW THAT TODAY'S DECISION IS DEEPLY
INCONSISTENT WITH LEGISLATIVE INTENTION AND THIS COURT'S PRECEDENTS. 
THE ACT SOUGHT TO COMPEL MANAGEMENT AND LABOR TO MEET AND BARGAIN IN
GOOD FAITH AS TO CERTAIN TOPICS.  THIS IS THE AFFIRMATIVE REQUIREMENT
OF SEC. 8(D) WHICH THE BOARD IS SPECIFICALLY EMPOWERED TO ENFORCE, BUT
I SEE NO WARRANT FOR INFERRING FROM IT ANY POWER IN THE BOARD TO
PROHIBIT BARGAINING IN GOOD FAITH AS TO LAWFUL MATTERS NOT INCLUDED IN
SEC. 8(D).  THE COURT REASONS THAT SUCH CONDUCT ON THE PART OF THE
EMPLOYER, WHEN CARRIED TO THE POINT OF INSISTENCE, IS IN SUBSTANCE
EQUIVALENT TO A REFUSAL TO BARGAIN AS TO THE STATUTORY SUBJECTS, BUT I
CANNOT UNDERSTAND HOW THIS CAN BE SAID OVER THE TRIAL EXAMINER'S
UNEQUIVOCAL FINDING THAT THE EMPLOYER DID IN FACT BARGAIN IN "GOOD
FAITH," NOT ONLY OVER THE DISPUTED CLAUSES BUT ALSO OVER THE STATUTORY
SUBJECTS. 

IT MUST NOT BE FORGOTTEN THAT THE ACT REQUIRES BARGAINING, NOT
AGREEMENT, FOR THE OBLIGATION TO BARGAIN "  ...  DOES NOT COMPEL EITHER
PARTY TO AGREE TO A PROPOSAL OR REQUIRE THE MAKING OF A CONCESSION." 
SEC. 8(D).  HERE THE EMPLOYER CONCEDEDLY BARGAINED BUT SIMPLY REFUSED
TO AGREE UNTIL THE UNION WOULD ACCEPT WHAT THE COURT HOLDS WOULD HAVE
BEEN A LAWFUL CONTRACT PROVISION.  IT MAY BE THAT AN EMPLOYER OR UNION,
BY ADAMANT INSISTENCE IN GOOD FAITH UPON A PROVISION WHICH IS NOT A
STATUTORY SUBJECT UNDER SEC. 8(D), DOES IN FACT REQUIRE THE OTHER PARTY
TO BARGAIN OVER IT.  BUT THIS EFFECT IS TRACEABLE TO THE ECONOMIC POWER
OF THE EMPLOYER OR UNION IN THE CIRCUMSTANCES OF A GIVEN SITUATION AND
SHOULD NOT AFFECT OUR CONSTRUCTION OF THE ACT.  IF ONE THING IS CLEAR,
IT IS THAT THE BOARD WAS NOT VIEWED BY CONGRESS AS AN AGENCY WHICH
SHOULD EXERCISE ITS POWERS TO AID A PARTY TO COLLECTIVE BARGAINING
WHICH WAS IN AN ECONOMICALLY DISADVANTAGEOUS POSITION. 

THE MOST CURSORY VIEW OF DECISIONS OF THE BOARD AND THE CIRCUIT
COURTS UNDER THE NATIONAL LABOR RELATIONS ACT REVEALS THE UNSETTLED AND
EVOLVING CHARACTER OF COLLECTIVE BARGAINING AGREEMENTS.  PROVISIONS
WHICH TWO DECADES AGO MIGHT HAVE BEEN THOUGHT TO BE THE EXCLUSIVE
CONCERN OF LABOR OR MANAGEMENT ARE TODAY COMMONPLACE IN SUCH
AGREEMENTS.  (FN1)  THE BARGAINING PROCESS SHOULD BE LEFT FLUID, FREE
FROM INTERVENTION OF THE BOARD LEADING TO PREMATURE CRYSTALLIZATION OF
LABOR AGREEMENTS INTO ANY ONE PATTERN OF CONTRACT PROVISIONS, SO THAT
THESE AGREEMENTS CAN BE ADAPTED THROUGH COLLECTIVE BARGAINING TO THE
CHANGING NEEDS OF OUR SOCIETY AND TO THE CHANGING CONCEPTS OF THE
RESPONSIBILITIES OF LABOR AND MANAGEMENT.  WHAT THE COURT DOES TODAY
MAY IMPEDE THIS EVOLUTIONARY PROCESS.  UNDER THE FACTS OF THIS CASE, AN
EMPLOYER IS PRECLUDED FROM ATTEMPTING TO LIMIT THE LIKELIHOOD OF A
STRIKE.  BUT BY THE SAME TOKEN IT WOULD SEEM TO FOLLOW THAT UNIONS
WHICH BARGAIN IN GOOD FAITH WOULD BE PRECLUDED FROM INSISTING UPON
CONTRACT CLAUSES WHICH MIGHT NOT BE DEEMED STATUTORY SUBJECTS WITHIN
SEC. 8(D). 

AS UNQUALIFIEDLY STATED IN LABOR BOARD V. AMERICAN NATIONAL INSURANCE
CO., SUPRA, P. 357, IT IS THROUGH THE "GOOD FAITH" REQUIREMENT OF SEC.
8(D) THAT THE BOARD IS TO ENFORCE THE BARGAINING PROVISIONS OF SEC. 8. 
A DETERMINATION THAT A PARTY BARGAINED AS TO STATUTORY OR NONSTATUTORY
SUBJECTS IN GOOD OR BAD FAITH MUST DEPEND UPON AN EVALUATION OF THE
TOTAL CIRCUMSTANCES SURROUNDING ANY GIVEN SITUATION.  I DO NOT DENY
THAT THERE MAY BE INSTANCES WHERE UNYIELDING INSISTENCE ON A PARTICULAR
ITEM MAY BE A RELEVANT CONSIDERATION IN THE OVER-ALL PICTURE IN
DETERMINING "GOOD FAITH," FOR THE DEMANDS OF A PARTY MIGHT IN THE
CONTEXT OF A PARTICULAR INDUSTRY BE SO EXTREME AS TO CONSTITUTE SOME
EVIDENCE OF AN UNWILLINGNESS TO BARGAIN.  BUT NO SUCH SITUATION IS
PRESENTED IN THIS INSTANCE BY THE "BALLOT" CLAUSE.  "NO-STRIKE"
CLAUSES, AND OTHER PROVISIONS ANALOGOUS TO THE "BALLOT" CLAUSE LIMITING
THE RIGHT TO STRIKE, ARE HARDLY NOVEL TO LABOR AGREEMENTS.  (FN2)  AND
IN ANY EVENT THE UNCONTESTED FINDING OF "GOOD FAITH" BY THE TRIAL
EXAMINER FORECLOSES THAT ISSUE HERE. 

OF COURSE AN EMPLOYER OR UNION CANNOT INSIST UPON A CLAUSE WHICH
WOULD BE ILLEGAL UNDER THE ACT'S PROVISIONS, LABOR BOARD V. NATIONAL
MARITIME UNION, 175 F.2D 686, OR CONDUCT ITSELF SO AS TO CONTRAVENE
SPECIFIC REQUIREMENTS OF THE ACT.  MEDO PHOTO SUPPLY CORP. V. LABOR
BOARD, 321 U.S. 678.   BUT HERE THE COURT RECOGNIZES, AS IT MUST, THAT
THE CLAUSE IS LAWFUL UNDER THE ACT, (FN3) AND I THINK IT CLEAR THAT THE
COMPANY'S INSISTENCE UPON IT VIOLATED NO STATUTORY DUTY TO WHICH IT WAS
SUBJECT.  THE FACT THAT THE EMPLOYER HERE DID BARGAIN WITH THE UNION
OVER THE INCLUSION OF THE "BALLOT" CLAUSE IN THE PROPOSED AGREEMENT
DISTINGUISHES THIS CASE FROM THE SITUATION INVOLVED IN THE MEDO PHOTO
SUPPLY CORP. CASE, SUPRA, WHERE AN EMPLOYER, WITHOUT THE SANCTION OF A
LABOR AGREEMENT CONTEMPLATING SUCH ACTION, NEGOTIATED DIRECTLY WITH ITS
EMPLOYEES IN REFERENCE TO WAGES.  THIS COURT UPHELD THE FINDING OF AN
UNFAIR LABOR PRACTICE, OBSERVING THAT THE ACT "  ...  MAKES IT THE DUTY
OF THE EMPLOYER TO BARGAIN COLLECTIVELY WITH THE CHOSEN REPRESENTATIVES
OF HIS EMPLOYEES.  THE OBLIGATION BEING EXCLUSIVE  ...  , IT EXACTS
'THE NEGATIVE DUTY TO TREAT WITH NO OTHER.'"  321 U.S., AT 683-684. 
BARGAINING DIRECTLY WITH EMPLOYEES "  ...  WOULD BE SUBVERSIVE OF THE
MODE OF COLLECTIVE BARGAINING WHICH THE STATUTE HAS ORDAINED  ...  ." 
321 U.S., AT 684.  THE IMPORTANT CONSIDERATION IS THAT THE ACT DOES NOT
PURPORT TO DEFINE THE TERMS OF AN AGREEMENT BUT SIMPLY SECURES THE
REPRESENTATIVE STATUS OF THE UNION FOR PURPOSES OF BARGAINING.  THE
CONTROLLING DISTINCTION FROM MEDO PHOTO IS THAT THE EMPLOYER HERE HAS
NOT SOUGHT TO BARGAIN WITH ANYONE ELSE OVER THE TERMS OF THE AGREEMENT
BEING NEGOTIATED. 

                                       II. 

THE COMPANY'S INSISTENCE ON THE "RECOGNITION" CLAUSE, WHICH HAD THE
EFFECT OF EXCLUDING THE INTERNATIONAL UNION AS A PARTY SIGNATORY TO
AGREEMENT AND MAKING LOCAL 1239 THE SOLE CONTRACTING PARTY ON THE UNION
SIDE, PRESENTS A DIFFERENT PROBLEM.  IN MY OPINION THE COMPANY'S ACTION
IN THIS REGARD DID CONSTITUTE AN UNFAIR LABOR PRACTICE SINCE IT
CONTRAVENED SPECIFIC REQUIREMENTS OF THE ACT. 

TO BARGAIN COLLECTIVELY "WITH THE REPRESENTATIVES OF HIS EMPLOYEES." 
SUCH REPRESENTATIVES ARE THOSE WHO HAVE BEEN CHOSEN BY A MAJORITY OF
THE EMPLOYEES OF THE APPROPRIATE UNIT, AND THEY CONSTITUTE "  ...  THE
EXCLUSIVE REPRESENTATIVES OF ALL THE EMPLOYEES IN SUCH UNIT FOR THE
PURPOSES OF COLLECTIVE BARGAINING  ...  ."   SEC.  9(A).  THE BOARD
UNDER SEC. 9(C) IS AUTHORIZED TO DIRECT A REPRESENTATION ELECTION AND
CERTIFY ITS RESULTS.  THE EMPLOYER'S DUTY TO BARGAIN WITH THE
REPRESENTATIVES INCLUDES NOT MERELY THE OBLIGATION TO CONFER IN GOOD
FAITH, BUT ALSO "  ...  THE EXECUTION OF A WRITTEN CONTRACT
INCORPORATING ANY AGREEMENT REACHED IF REQUESTED  ...  " BY THE
EMPLOYEES' REPRESENTATIVES.  SEC. 8(D).  I THINK IT HARDLY DEBATABLE
THAT THIS LANGUAGE MUST BE READ TO REQUIRE THE COMPANY, IF SO
REQUESTED, TO SIGN ANY AGREEMENT REACHED WITH THE SAME REPRESENTATIVE
WITH WHICH IT IS REQUIRED TO BARGAIN.  BY CONDITIONING AGREEMENT UPON A
CHANGE IN SIGNATORY FROM THE CERTIFIED EXCLUSIVE BARGAINING
REPRESENTATIVE, THE COMPANY HERE IN EFFECT VIOLATED THIS DUTY. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS IN BOTH CASES AND
REQUIRE THE BOARD TO MODIFY ITS CEASE AND DESIST ORDER SO AS TO ALLOW
THE COMPANY TO BARGAIN OVER THE "BALLOT" CLAUSE. 

FN1  A VARIETY OF TOPICS HAVE BEEN HELD TO BE SUBJECTS OVER WHICH AN
EMPLOYER MUST BARGAIN.  E.G., INLAND STEEL CO. V. LABOR BOARD, 170 F.2D
247 (PENSION AND RETIREMENT PLANS); UNION MFG. CO., 76 N.L.R.B. 322
(BONUSES). 

FN2  IT WAS STIPULATED BY THE PARTIES DURING HEARINGS ON THE CHARGE
OF UNFAIR LABOR PRACTICES THAT COLLECTIVE BARGAINING AGREEMENTS BETWEEN
SEVERAL UNIONS AND COMPANIES HAVE INCORPORATED CLAUSES REQUIRING, IN
ONE FORM OR ANOTHER, SECRET BALLOTS OF EMPLOYEES BEFORE THE UNION IS
ABLE TO CALL A STRIKE.  THE CLAUSES VARIED IN DEFINING EMPLOYEES TO
INCLUDE ONLY UNION MEMBERS OR ALL THOSE WORKING IN THE UNIT REPRESENTED
BY THE UNION AND GAVE VARYING EFFECT TO THE EMPLOYEE VOTE.  THE CLAUSE
HERE INVOLVED DOES NOT PURPORT TO MAKE THE VOTE OF THE EMPLOYEES
BINDING ON THE UNION. 

FN3  I FIND NO MERIT IN THE UNION'S POSITION THAT THE "BALLOT" CLAUSE
IS UNLAWFUL UNDER THE ACT SINCE IN DEROGATION OF THE REPRESENTATIVE
STATUS OF THE UNION.  THE STATUTE AND ITS LEGISLATIVE BACKGROUND
UNDERMINE ANY SUCH ARGUMENT, FOR THE TAFT-HARTLEY ACT INCORPORATES IN
TWO SECTIONS PROVISIONS FOR A PRE-STRIKE BALLOT OF EMPLOYEES AND
EARLIER DRAFTS OF THE ACT WOULD HAVE MADE AN EMPLOYEE BALLOT MANDATORY
AS A CONDITION PRECEDENT TO ALL STRIKES. 

THE HARTLEY BILL, AS PASSED BY THE HOUSE, PROVIDED THAT EMPLOYEES
SHOULD BE INFORMED IN WRITING OF ISSUES IN DISPUTE AND THAT A SECRET
BALLOT OF EMPLOYEES SHOULD BE HELD ON THE EMPLOYER'S LAST OFFER OF
SETTLEMENT AND ON THE QUESTION OF A STRIKE.  ONLY IF THE EMPLOYEES
REJECTED THE LAST OFFER AND VOTED TO STRIKE COULD THE UNION AUTHORIZE A
STRIKE.  SEC. 2(11), H.R. 3020, 80TH CONG., 1ST SESS. THE REPORT ON THE
BILL STATES THAT "  ...  AT LEAST THE MORE IRRESPONSIBLE STRIKES  ...
WILL BE GREATLY REDUCED BY REQUIRING STRIKE VOTES AFTER EACH SIDE HAS
HAD AN OPPORTUNITY TO STATE ITS POSITION AND TO URGE ITS FAIRNESS UPON
THOSE CALLED UPON TO DO THE STRIKING."  H.R. REP. NO. 245, 80TH CONG.,
1ST SESS. 22. 

THESE MANDATORY PROVISIONS WERE LATER DISCARDED, AND IN THEIR PLACE
CONGRESS ENACTED SEC. 203(C) IN TITLE II OF THE TAFT-HARTLEY ACT, 61
STAT. 154, 29 U.S.C. SEC. 173(C), UNDER WHICH THE DIRECTOR OF THE
FEDERAL MEDIATION AND CONCILIATION SERVICE IS IN CERTAIN SITUATIONS TO
SEEK TO INDUCE THE PARTIES IN DISPUTE TO AGREE VOLUNTARILY TO AN
EMPLOYEE VOTE ON THE EMPLOYER'S LAST OFFER PRIOR TO A STRIKE.  IN
COMMENTING ON THIS CHANGE, THE MANAGERS OF THE HOUSE CONFERENCE STATED:
"WHILE THE VOTE ON THE EMPLOYER'S LAST OFFER BY SECRET BALLOT IS NOT
COMPULSORY AS IT WAS IN THE HOUSE BILL, IT IS EXPECTED THAT THIS
PROCEDURE WILL BE EXTENSIVELY USED AND THAT IT WILL HAVE THE EFFECT OF
PREVENTING MANY STRIKES WHICH MIGHT OTHERWISE TAKE PLACE."  H.R. CONF.
REP. NO. 510, 80TH CONG., 1ST SESS. 63.  THE INESCAPABLE CONCLUSION IN
VIEW OF THIS LEGISLATIVE HISTORY IS THAT CONGRESS, INSTEAD OF MAKING
THE PRE-STRIKE BALLOT MANDATORY, INTENDED TO LEAVE SUCH BALLOT CLAUSES
TO THE DECISION OF THE PARTIES TO A LABOR AGREEMENT TO BE ARRIVED AT
THROUGH THE NORMAL COLLECTIVE BARGAINING PROCESS.  CF. SEC. 201(C) OF
TITLE II, 61 STAT. 152, 29 U.S.C. SEC. 171(C).  THERE IS A FURTHER
PROVISION FOR A PRE-STRIKE BALLOT IN SEC. 209(B) OF TITLE II, 61 STAT.
156, 29 U.S.C. SEC. 179(B), WHICH RELATES TO DISPUTES WHICH IMPERIL
NATIONAL HEALTH OR SAFETY. 
..END :
























YATES V. UNITED STATES 356 U.S. 363 


NO. 841.  DECIDED MAY 5, 1958 - 252 F.2D 568, JUDGMENT VACATED AND CAUSE
REMANDED TO DISTRICT COURT WITH DIRECTIONS. 


PETITIONER WAS TRIED AND CONVICTED FOR CONSPIRACY TO VIOLATE THE SMITH
ACT; BUT THE CONVICTION WAS REVERSED BY THIS COURT.  354 U.S. 298.  FOR
CONTEMPTS AND OTHER SUBSIDIARY MATTERS IN THE COURSE OF THESE
PROCEEDINGS, PETITIONER SERVED OVER SEVEN MONTHS' IMPRISONMENT ON THE
BASIS OF ACTIONS BY THE DISTRICT COURT, SEVERAL OF WHICH WERE SET ASIDE
ON APPEAL.  ONE CONTEMPT ACTION RESULTED IN PETITIONER'S CONVICTION FOR
ELEVEN CONTEMPTS, AND SHE WAS SENTENCED TO ELEVEN CONCURRENT TERMS OF
ONE YEAR'S IMPRISONMENT.  FINDING THAT THERE WAS ONLY ONE CONTEMPT,
THIS COURT REMANDED THE CASE TO THE DISTRICT COURT FOR APPROPRIATE
RESENTENCING.  355 U.S. 66.  THE DISTRICT COURT RESENTENCED PETITIONER
TO IMPRISONMENT FOR ONE YEAR FOR THE SINGLE CONTEMPT.  HELD:
CERTIORARI GRANTED; JUDGMENT VACATED; AND CAUSE REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO REDUCE THE SENTENCE TO THE TIME
PETITIONER HAS ALREADY BEEN CONFINED IN THE COURSE OF THESE
PROCEEDINGS.  PP. 363-367. 

YATES V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM.  THIS CASE HAS A LONG HISTORY, THE COURSE OF WHICH MUST
BE SUMMARIZED FOR UNDERSTANDING OF THE COURT'S DISPOSITION.  ON JULY
26, 1951, PETITIONER WAS ARRESTED FOR CONSPIRACY TO VIOLATE THE SMITH
ACT, 18 U.S.C. SECS. 371, 2385, AND WAS RELEASED ON FURNISHING $7,500
BAIL.  ON THE FOLLOWING DAY BAIL WAS INCREASED TO $50,000 PENDING
TRANSFER OF THE PROCEEDINGS TO A DIFFERENT CITY AND PETITIONER WAS
RECOMMITTED.  ON AUGUST 2 PETITIONER WAS ARRAIGNED, AND SEVERAL DAYS
LATER BAIL WAS SET AT $25,000.  PETITIONER'S WRIT OF HABEAS CORPUS
SEEKING A REDUCTION OF BAIL WAS DISMISSED.  THE DISTRICT JUDGE WHO HAD
FIXED BAIL WAS DISQUALIFIED, SEE CONNELLY V. UNITED STATES DISTRICT
COURT, 191 F.2D 692, AND THE DISTRICT JUDGE WHOSE SENTENCE IS NOW UNDER
REVIEW WAS ASSIGNED TO THE CASE.  ON MOTION OF THE GOVERNMENT, THE
COURT INCREASED BAIL TO $50,000 ON AUGUST 30; PETITIONER'S MOTION TO
REDUCE BAIL AND HER PETITION FOR A WRIT OF HABEAS CORPUS WERE DENIED;
ON REVIEW OF THE DENIAL OF HABEAS CORPUS, THE COURT OF APPEALS
AFFIRMED, STACK V. BOYLE, 192 F.2D 56.  THIS COURT, HOWEVER, FOUND THAT
BAIL HAD "NOT BEEN FIXED BY PROPER METHODS" AND REMITTED THE CASE FOR
THE PROPER REMEDY OF A MOTION TO REDUCE BAIL, STACK V. BOYLE, 342 U.S.
1, 7.  THE DISTRICT COURT DENIED SUCH MOTION BY PETITIONER, UNITED
STATES V. SCHNEIDERMAN, 102 F. SUPP. 52; ON APPEAL, THE COURT OF
APPEALS ORDERED BAIL SET AT $10,000.  STACK V. UNITED STATES, 193 F.2D
875.  SHORTLY THEREAFTER, ON DECEMBER 10, 1951, PETITIONER, HAVING BEEN
FOUND TO HAVE BEEN IMPROPERLY CONFINED SINCE AUGUST 30 OF THAT YEAR,
WAS RELEASED ON BAIL. 

THE TRIAL UNDER THE CONSPIRACY INDICTMENT BEGAN ON FEBRUARY 5, 1952. 
TESTIFYING IN HER OWN DEFENSE, PETITIONER ON CROSS-EXAMINATION ON JUNE
26 REFUSED TO ANSWER FOUR QUESTIONS ABOUT COMMUNIST MEMBERSHIP OF OTHER
PERSONS; SHE WAS ADJUDGED GUILTY OF CIVIL CONTEMPT AND COMMITTED TO
JAIL UNTIL THE CONTEMPT HAD BEEN PURGED.  ON JUNE 30 SHE REFUSED TO
ANSWER ELEVEN QUESTIONS ABOUT COMMUNIST MEMBERSHIP OF OTHER PERSONS;
THE COURT ANNOUNCED ITS INTENTION TO TREAT THESE REFUSALS AS CRIMINAL
CONTEMPT.  AT THE CONCLUSION OF THE TRIAL PETITIONER WAS FOUND GUILTY
OF CONSPIRACY TO VIOLATE THE SMITH ACT AND WAS SENTENCED TO SERVE FIVE
YEARS' IMPRISONMENT AND TO PAY A $10,000 FINE.  THE DISTRICT COURT
DENIED BAIL PENDING APPEAL OF THE CONSPIRACY CONVICTION; ON APPLICATION
TO THE COURT OF APPEALS TO FIX BAIL, THE CASE WAS REMANDED TO THE
DISTRICT COURT, WHICH AGAIN DENIED BAIL.  UNITED STATES V.
SCHNEIDERMAN, 106 F. SUPP. 941.  THE COURT OF APPEALS THEN FIXED BAIL
AT $20,000, AND ON AUGUST 30 PETITIONER, UPON FURNISHING THAT AMOUNT,
WAS RELEASED FROM CUSTODY, HAVING BEEN IN JAIL SINCE JUNE 26.  THE
CONSPIRACY CONVICTION WAS LATER AFFIRMED BY THE COURT OF APPEALS, 225
F.2D 146, BUT REVERSED BY THIS COURT, 354 U.S. 298.  THE INDICTMENT WAS
EVENTUALLY DISMISSED ON MOTION OF THE GOVERNMENT. 

PETITIONER HAD IN THE MEANTIME, ON AUGUST 8, 1952, BEEN ADJUDGED
GUILTY OF ELEVEN CRIMINAL CONTEMPTS FOR HER ELEVEN REFUSALS TO ANSWER
ON JUNE 30, AND SHE WAS SENTENCED BY THE DISTRICT COURT TO ELEVEN ONE
YEAR TERMS OF IMPRISONMENT, TO RUN CONCURRENTLY AND TO COMMENCE UPON
THE COMPLETION OF PETITIONER'S IMPRISONMENT FOR THE CONSPIRACY.  IT IS
AS TO THIS SENTENCE THAT REVIEW IS SOUGHT HERE TODAY. 

ON SEPTEMBER 3, 1952, FOUR DAYS AFTER PETITIONER'S RELEASE FROM
CUSTODY, THE DISTRICT COURT ORDERED HER RECOMMITTED ON THE CIVIL
CONTEMPT ARISING OUT OF THE FOUR REFUSALS TO ANSWER ON JUNE 26.   107
F. SUPP. 408.  THE DISTRICT COURT DENIED HER APPLICATION FOR BAIL
PENDING APPEAL, BUT THE COURT OF APPEALS GRANTED IT, AND SHE WAS
RELEASED TWO DAYS AFTER HER COMMITMENT; THE COURT OF APPEALS
SUBSEQUENTLY REVERSED THE RECOMMITMENT ORDER OF THE DISTRICT COURT ON
THE GROUND THAT PETITIONER SHOULD NOT HAVE BEEN RECONFINED FOR CIVIL
CONTEMPT AFTER THE CLOSE OF THE MAIN TRIAL.  227 F.2D 844.   TWO DAYS
AFTER HER RELEASE ON BAIL, ON SEPTEMBER 8, PETITIONER WAS ADJUDGED
GUILTY OF CRIMINAL CONTEMPT FOR THE FOUR JUNE 26 REFUSALS AND SENTENCED
TO FOUR THREE-YEAR TERMS OF IMPRISONMENT, TO RUN CONCURRENTLY.  107 F.
SUPP. 412.  PETITIONER WAS THEN RECONFINED; THE DISTRICT COURT DENIED
HER BAIL PENDING APPEAL, BUT THE COURT OF APPEALS GRANTED IT, AND SHE
WAS RELEASED ON BAIL THREE DAYS AFTER HER RECOMMITMENT.  THE COURT OF
APPEALS SUBSEQUENTLY REVERSED THIS CONTEMPT JUDGMENT BECAUSE OF THE
DISTRICT COURT'S FAILURE TO GIVE ANY NOTICE THAT IT INTENDED TO REGARD
THE JUNE 26 REFUSALS AS CRIMINAL CONTEMPTS, 227 F.2D 848. 

PETITIONER APPEALED HER CONVICTION OF CRIMINAL CONTEMPT FOR THE
ELEVEN REFUSALS TO ANSWER ON JUNE 30; THE COURT OF APPEALS AFFIRMED. 
227 F.2D 851.  THIS COURT HELD THAT THERE WAS BUT ONE CONTEMPT, NOT
ELEVEN, AND THAT A SENTENCE FOR ONLY ONE OFFENSE COULD BE IMPOSED. 
ACCORDINGLY, WE VACATED THE ONE-YEAR SENTENCE FOR THAT ONE CONVICTION
AND REMANDED THE CASE TO THE DISTRICT COURT FOR DETERMINATION OF A NEW
SENTENCE APPROPRIATE IN VIEW OF OUR SETTING ASIDE OF THE PUNISHMENT FOR
ELEVEN OFFENSES WHEN IN FACT ONLY ONE WAS LEGALLY ESTABLISHED.  355
U.S. 66.  ON REMAND, THE DISTRICT COURT, AFTER HEARING, RESENTENCED
PETITIONER TO ONE YEAR'S IMPRISONMENT.  THE COURT DENIED PETITIONER
BAIL PENDING APPEAL; THE COURT OF APPEALS ORDERED HER ADMITTED TO BAIL
IN THE AMOUNT OF $5,000, 252 F.2D 568, AND SHE WAS RELEASED AFTER
FIFTEEN DAYS' CONFINEMENT.  THE COURT OF APPEALS AFFIRMED THE JUDGMENT
OF THE DISTRICT COURT, NOTING THAT THE SENTENCE WAS "SEVERE."  IBID. 

REVERSING A JUDGMENT FOR CONTEMPT BECAUSE OF ERRORS OF SUBSTANTIVE
LAW MAY NATURALLY CALL FOR A REDUCTION OF THE SENTENCE BASED ON AN
EXTENT OF WRONGDOING FOUND UNSUSTAINABLE IN LAW.  SUCH REDUCTION OF THE
SENTENCE, HOWEVER, NORMALLY OUGHT NOT BE MADE BY THIS COURT.  IT SHOULD
BE LEFT, ON REMAND, TO THE SENTENCING COURT.  AND SO, WHEN THIS COURT
FOUND THAT ONLY A SINGLE OFFENSE WAS COMMITTED BY PETITIONER, AND NOT
ELEVEN OFFENSES, IT CHOSE NOT TO REDUCE THE SENTENCE BUT TO LEAVE THIS
TASK, WITH GENTLE INTIMATIONS OF THE NECESSITY FOR SUCH ACTION, TO THE
DISTRICT COURT.  HOWEVER, WHEN IN A SITUATION LIKE THIS THE DISTRICT
COURT APPEARS NOT TO HAVE EXERCISED ITS DISCRETION IN THE LIGHT OF THE
REVERSAL OF THE JUDGMENT BUT, IN EFFECT, TO HAVE SOUGHT MERELY TO
JUSTIFY THE ORIGINAL SENTENCE, THIS COURT HAS NO ALTERNATIVE EXCEPT TO
EXERCISE ITS SUPERVISORY POWER OVER THE ADMINISTRATION OF JUSTICE IN
THE LOWER FEDERAL COURTS BY SETTING ASIDE THE SENTENCE OF THE DISTRICT
COURT. 

ALTHOUGH PETITIONER'S CONVICTION UNDER THE SMITH ACT, THE SUBSTANTIVE
OFFENSE OUT OF WHICH THIS SUBSIDIARY MATTER AROSE, WAS REVERSED ON
APPEAL AND THE INDICTMENT ITSELF DISMISSED ON MOTION OF THE GOVERNMENT,
SHE HAS IN FACT SPENT SEVEN MONTHS IN JAIL IN THE COURSE OF THESE
PROCEEDINGS.  NOT UNMINDFUL OF PETITIONER'S OFFENSE, THIS COURT IS OF
THE VIEW, EXERCISING THE JUDGMENT THAT WE ARE NOW CALLED UPON TO
EXERCISE, THAT THE TIME THAT PETITIONER HAS ALREADY SERVED IN JAIL IS
AN ADEQUATE PUNISHMENT FOR HER OFFENSE IN REFUSING TO ANSWER QUESTIONS
AND IS TO BE DEEMED IN SATISFACTION OF THE NEW SENTENCE HEREIN ORDERED
FORMALLY TO BE IMPOSED.  ACCORDINGLY, THE WRIT OF CERTIORARI IS
GRANTED, AND THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE
CAUSE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO REDUCE THE
SENTENCE TO THE TIME PETITIONER HAS ALREADY BEEN CONFINED IN THE COURSE
OF THESE PROCEEDINGS.  IT IS SO ORDERED. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE DOUGLAS CONCUR
IN THE RESULT FOR REASONS SET OUT IN THEIR DISSENTS IN YATES V. UNITED
STATES, 355 U.S. 66, 76, AND GREEN V. UNITED STATES, 356 U.S. 165, 193,
BUT UNDER CONSTRAINT OF THE COURT'S HOLDINGS IN THOSE CASES THEY
ACQUIESCE IN THE OPINION HERE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON AND MR. JUSTICE
WHITTAKER CONCUR, DISSENTING. 

IT IS FOR US TO SAY WHETHER THE ONE-YEAR SENTENCE WAS IMPROPER RATHER
THAN TO PASS ON THE ADEQUACY OF TIME ALREADY SERVED ON OTHER
JUDGMENTS.  PETITIONER HAS SERVED BUT 15 DAYS ON THIS SENTENCE, AND I
THEREFORE DISSENT FROM THE JUDGMENT RELEASING HER. 
..END :





RATNER V. UNITED STATES 356 U.S. 368 


NO. 819.  DECIDED MAY 5, 1958 - 162 F. SUPP. 518, AFFIRMED. 


RATNER V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















FIDELITY-PHILADELPHIA TRUST CO. V. SMITH 356 U.S. 274 


NO. 130.  ARGUED JANUARY 30, 1958 - DECIDED APRIL 28, 1958 - 241 F.2D
690, REVERSED. 


AT THE AGE OF 76 AND WITHOUT A MEDICAL EXAMINATION, PETITIONERS'
DECEDENT PURCHASED AT REGULAR RATES THREE SINGLE-PREMIUM LIFE INSURANCE
POLICIES ON HER OWN LIFE, PAYABLE TO NAMED BENEFICIARIES, AND, FROM THE
SAME COMPANIES AT THE SAME TIME, AS REQUIRED BY THESE COMPANIES, THREE
SINGLE-PREMIUM NONREFUNDABLE LIFE ANNUITY POLICIES.  THE USE AND
ENJOYMENT OF THE ANNUITY POLICIES WERE ENTIRELY INDEPENDENT OF THE LIFE
INSURANCE POLICIES; BUT THE SIZE OF EACH ANNUITY WAS CALCULATED SO
THAT, IN THE EVENT THE ANNUITANT-INSURED DIED PREMATURELY, THE ANNUITY
PREMIUM, LESS THE ANNUITY PAYMENTS ALREADY MADE, WOULD COMBINE WITH THE
LIFE INSURANCE PREMIUM, PLUS INTEREST, TO EQUAL THE AMOUNT OF INSURANCE
PROCEEDS TO BE PAID, PLUS EXPENSES.  THE DECEDENT RECEIVED THE
ANNUITIES THROUGHOUT THE REMAINDER OF HER LIFETIME; BUT, PAYING A GIFT
TAX, SHE IRREVOCABLY ASSIGNED ALL RIGHTS AND BENEFITS UNDER THE
INSURANCE POLICIES, INCLUDING THE RIGHTS TO RECEIVE DIVIDENDS, TO
CHANGE BENEFICIARIES, AND TO SURRENDER OR ASSIGN THE POLICIES.  TWO
POLICIES WERE ASSIGNED TO HER CHILDREN AND THE THIRD TO A TRUSTEE, THE
DECEDENT RETAINING NO BENEFICIAL OR REVERSIONARY INTEREST IN THE
TRUST.  HELD: THE PROCEEDS OF THE LIFE INSURANCE POLICIES SHOULD NOT BE
INCLUDED IN THE DECEDENT'S ESTATE FOR THE PURPOSE OF THE FEDERAL ESTATE
TAX UNDER SEC.  811(C)(1)(B) OF THE INTERNAL REVENUE CODE OF 1939.  PP.
275-281. 

(A)  HELVERING V. LE GIERSE, 312 U.S. 531, DISTINGUISHED.  PP. 277
279. 

(B)  UNDER THE ASSIGNMENT, THE DECEDENT HAD NOT BECOME A LIFE TENANT
WHO POSTPONES THE POSSESSION AND ENJOYMENT OF THE PROPERTY BY THE
REMAINDERMEN UNTIL HER DEATH.  PP. 278-279. 

(C)  NOR ARE THE ASSIGNEES LIKE SECOND ANNUITANTS IN SURVIVORSHIP
ANNUITIES OR JOINT ANNUITANTS IN JOINT AND SURVIVOR ANNUITIES.  P. 279,
N. 5. 

(D)  THE ANNUITY PAYMENTS WERE NOT INCOME FROM PROPERTY WHICH THE
INSURED TRANSFERRED TO HER CHILDREN UNDER THE LIFE INSURANCE POLICIES,
SINCE THE USE AND ENJOYMENT OF THE ANNUITY POLICIES WERE ENTIRELY
INDEPENDENT OF THE LIFE INSURANCE POLICIES.  PP. 279-281. 

FIDELITY-PHILADELPHIA TRUST CO. ET AL., EXECUTORS, V. SMITH, COLLECTOR
OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE THE COURT IS WHETHER THE PROCEEDS OF CERTAIN
INSURANCE POLICIES ON THE LIFE OF THE DECEDENT, PAYABLE TO NAMED
BENFICIARIES AND IRREVOCABLY ASSIGNED BY THE INSURED, SHOULD BE
INCLUDED IN THE ESTATE OF THE DECEDENT FOR THE PURPOSES OF THE FEDERAL
ESTATE TAX.  THE FACTS ARE NOT IN DISPUTE.  IN 1934 DECEDENT, THEN AGED
76, PURCHASED A SERIES OF ANNUITY-LIFE INSURANCE POLICY COMBINATIONS. 
THREE SINGLE-PREMIUM LIFE INSURANCE POLICIES, AT FACE VALUES OF
$200,000, $100,000, AND $50,000, RESPECTIVELY, WERE OBTAINED WITHOUT
THE REQUIREMENT OF A MEDICAL EXAMINATION.  AS A CONDITION TO SELLING
DECEDENT EACH LIFE INSURANCE POLICY, THE COMPANIES INVOLVED REQUIRED
DECEDENT ALSO TO PURCHASE A SEPARATE, SINGLE-PREMIUM, NONREFUNDABLE
LIFE ANNUITY POLICY.  THE PREMIUMS FOR EACH LIFE INSURANCE POLICY AND
FOR EACH ANNUITY POLICY WERE FIXED AT REGULAR RATES.  THE SIZE OF EACH
ANNUITY, HOWEVER, WAS CALCULATED SO THAT IN THE EVENT THE ANNUITANT
INSURED DIED PREMATURELY THE ANNUITY PREMIUM, LESS THE AMOUNT ALLOCATED
TO ANNUITY PAYMENTS ALREADY MADE, WOULD COMBINE WITH THE COMPANION LIFE
INSURANCE PREMIUM, PLUS INTEREST, TO EQUAL THE AMOUNT OF INSURANCE
PROCEEDS TO BE PAID.  (FN1)  EACH ANNUITY POLICY COULD HAVE BEEN
PURCHASED WITHOUT THE INSURANCE POLICY FOR THE SAME PREMIUM CHARGED FOR
IT UNDER THE ANNUITY-LIFE INSURANCE COMBINATION. 

THE DECEDENT'S CHILDREN WERE PRIMARY BENEFICIARIES OF THE INSURANCE
POLICIES; THE FIDELITY-PHILADELPHIA TRUST COMPANY, AS TRUSTEE OF A
TRUST ESTABLISHED BY DECEDENT, WAS NAMED BENFICIARY OF THE INTERESTS OF
ANY OF DECEDENT'S CHILDREN WHO PREDECEASED HER.  IN THE YEAR OF
PURCHASE, DECEDENT ASSIGNED ALL RIGHTS AND BENEFITS UNDER TWO OF THE
LIFE INSURANCE POLICIES TO HER CHILDREN AND UNDER THE OTHER TO THE
FIDELITY-PHILADELPHIA TRUST COMPANY AS TRUSTEE.  THESE RIGHTS AND
BENEFITS INCLUDED THE RIGHTS TO RECEIVE DIVIDENDS, TO CHANGE THE
BENEFICIARIES, TO SURRENDER THE POLICIES, AND TO ASSIGN THEM. 
DIVIDENDS WERE RECEIVED, BUT, AS FAR AS THE RECORD DISCLOSES, NONE OF
THE OTHER RIGHTS WAS EXERCISED.  A GIFT TAX ON THESE TRANSFERS WAS PAID
BY THE DECEDENT IN 1935.  IN 1938 DECEDENT AMENDED THE ABOVE-MENTIONED
TRUST SO THAT IT BECAME IRREVOCABLE.  AS THE GOVERNMENT CONCEDES, THE
DECEDENT RETAINED NO BENEFICIAL OR REVERSIONARY INTEREST IN THE TRUST. 

THE INSURED DIED IN 1946.  THE PROCEEDS OF THE THREE INSURANCE
POLICIES WERE NOT INCLUDED IN HER ESTATE IN THE ESTATE TAX RETURN.  THE
COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THESE PROCEEDS SHOULD
HAVE BEEN INCLUDED AND ASSESSED A DEFICIENCY ACCORDINGLY.  THE ADJUSTED
TAX WAS PAID BY THE EXECUTORS, AND WHEN CLAIM FOR REFUND WAS DENIED,
THIS ACTION FOR REFUND FOLLOWED.  THE DISTRICT COURT ENTERED JUDGMENT
FOR THE TAXPAYERS, BUT THE COURT OF APPEALS FOR THE THIRD CIRCUIT
REVERSED.  241 F.2D 690.  WE GRANTED CERTIORARI.  (FN2)  354 U.S. 921. 

IT IS CONCEDED BY THE PARTIES THAT THE QUESTION OF WHETHER THE
PROCEEDS SHOULD BE INCLUDED IN THE ESTATE IS NOT DETERMINABLE BY THE
FEDERAL ESTATE TAX PROVISION DEALING WITH LIFE INSURANCE PROCEEDS. 
CF. HELVERING V. LE GIERSE, 312 U.S. 531.  TO SUPPORT THE DECISION
BELOW, THE GOVERNMENT ARGUES THAT THE PROCEEDS ARE INCLUDIBLE IN THE
ESTATE UNDER SECTION 811(C)(1)(B) OF THE INTERNAL REVENUE CODE OF 1939,
WHICH INCLUDES, IN THE ESTATE OF THE DECEDENT, PROPERTY, TO THE EXTENT
OF THE DECEDENT'S INTEREST THEREIN, WHICH THE DECEDENT HAD TRANSFERRED
WITHOUT ADEQUATE AND FULL CONSIDERATION, UNDER WHICH TRANSFER THE
DECEDENT: 

"HAS RETAINED FOR HIS LIFE  ...  (I) THE POSSESSION OR ENJOYMENT OF,
OR THE RIGHT TO INCOME FROM, THE PROPERTY  ...  ." 

THE GOVERNMENT CONTENDS THAT THE ANNUITY PAYMENTS, WHICH WERE
RETAINED UNTIL DEATH, WERE INCOME FROM PROPERTY TRANSFERRED BY THE
DECEDENT TO HER CHILDREN THROUGH THE USE OF THE LIFE INSURANCE
POLICIES. 

ON THE OTHER HAND, PETITIONERS, EXECUTORS OF THE ESTATE, ASSERT THAT
THE ANNUITY PAYMENTS WERE INCOME FROM THE ANNUITY POLICIES, WHICH WERE
SEPARATE PROPERTY FROM THE INSURANCE POLICIES, AND THAT SINCE DECEDENT
HAD ASSIGNED AWAY THE LIFE INSURANCE POLICIES BEFORE DEATH, SHE
RETAINED NO INTEREST IN THEM AT DEATH. 

THE GOVERNMENT RELIES ON HELVERING V. LE GIERSE, SUPRA, WHERE THIS
COURT ALSO HAD BEFORE IT THE ISSUE OF THE TAXABILITY OF PROCEEDS FROM A
LIFE INSURANCE POLICY IN AN ANNUITY-LIFE INSURANCE COMBINATION.  AFTER
HOLDING THAT THE TAXABILITY OF THESE PROCEEDS WAS NOT TO BE DETERMINED
FOR ESTATE TAX PURPOSES ACCORDING TO THE STATUTORY PROVISIONS DEALING
WITH LIFE INSURANCE, (FN3) THE COURT HELD THAT THE PROCEEDS WERE
INCLUDIBLE IN THE ESTATE UNDER SECTION 302(C) OF THE REVENUE ACT OF
1926 BECAUSE THEY DEVOLVED ON THE BENEFICIARIES IN A TRANSFER WHICH
TOOK "EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER  ...  DEATH."  312
U.S., AT 542.  HOWEVER, IN REACHING THIS CONCLUSION THE DECISION DID
NOT CONSIDER THE PROBLEM IN THE CASE AT BAR, FOR IN LE GIERSE THE
INSURED HAD RETAINED THE RIGHTS AND BENEFITS OF THE INSURANCE POLICY
UNTIL DEATH.  THE FACTS IN THE INSTANT CASE ON THIS POINT ARE
FUNDAMENTALLY DIFFERENT.  PRIOR TO DEATH, THE DECEDENT HAD DIVESTED
HERSELF OF ALL INTERESTS IN THE INSURANCE POLICIES, INCLUDING THE
POSSIBILITY THAT THE FUNDS WOULD RETURN TO HER OR HER ESTATE IF THE
BENEFICIARIES PREDECEASED HER.  (FN4)  THE ASSIGNEES BECAME THE
"OWNERS" OF THE POLICIES BEFORE HER DEATH; THEY HAD RECEIVED THE RIGHT
TO THE IMMEDIATE AND UNLIMITED USE OF THE POLICIES TO THE FULL EXTENT
OF THEIR WORTH.  THE IMMEDIATE VALUE OF THE POLICIES WAS ALWAYS
SUBSTANTIAL.  IN THE YEAR OF ASSIGNMENT THEIR TOTAL CASH SURRENDER
VALUE WAS OVER $289,000; IN THE YEAR OF DEATH IT WAS OVER $326,000. 
UNDER THE ASSIGNMENT, THE DECEDENT HAD NOT BECOME A LIFE TENANT WHO
POSTPONES THE POSSESSION AND ENJOYMENT OF THE PROPERTY BY THE
REMAINDERMEN UNTIL HER DEATH.  (FN5)  CF. HELVERING V. BULLARD, 303
U.S. 297; COMMISSIONER V. ESTATE OF CHURCH, 335 U.S. 632.  ON THE
CONTRARY, THE ASSIGNEES HELD THE BUNDLE OF RIGHTS, THE INCIDENTS OF
OWNERSHIP, OVER PROPERTY FROM WHICH THE DECEDENT HAD TOTALLY DIVORCED
HERSELF.  CF. CHASE NATIONAL BANK V. UNITED STATES, 278 U.S. 327;
GOLDSTONE V. UNITED STATES, 325 U.S. 687. 

ILLUSTRATIVE OF THE DISTINCTION BETWEEN HELVERING V. LE GIERSE AND
THE CASE AT BAR IS THE FACT THAT THE GOVERNMENT HAS NOT ENDEAVORED HERE
TO SUSTAIN THE TAX UNDER THE STATUTORY PROVISION APPLIED IN THAT CASE. 
INSTEAD OF THE PROVISION TAXING TRANSFERS "INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT OR AFTER" THE TRANSFEROR'S DEATH, (FN6) THE
PROVISION APPLIED IN LE GIERSE, THE GOVERNMENT RELIES ON THE PROVISION
TAXING TRANSFERS IN WHICH THE TRANSFEROR HAS RETAINED UNTIL DEATH "THE
RIGHT TO INCOME FROM" THE TRANSFERRED PROPERTY.  (FN7)  HOWEVER, THE
GOVERNMENT'S POSITION THAT THE ANNUITIES WERE INCOME FROM PROPERTY
WHICH THE INSURED TRANSFERRED TO HER CHILDREN UNDER THE LIFE INSURANCE
POLICIES IS NOT WELL TAKEN. 

TO ESTABLISH ITS CONTENTION, THE GOVERNMENT MUST AGGREGATE THE
PREMIUMS OF THE ANNUITY POLICIES WITH THOSE OF THE LIFE INSURANCE
POLICIES AND ESTABLISH THAT THE ANNUITY PAYMENTS WERE DERIVED AS INCOME
FROM THE ENTIRE INVESTMENT.  THIS PROPOSITION CANNOT BE ESTABLISHED. 
ADMITTEDLY, WHEN THE POLICIES WERE PURCHASED, EACH LIFE INSURANCE
ANNUITY COMBINATION WAS THE PRODUCT OF A SINGLE, INTEGRATED
TRANSACTION.  HOWEVER, THE PARTIES NEITHER INTENDED THAT, NOR ACTED AS
IF, ANY OF THE TRANSACTIONS WOULD HAVE A QUALITY OF INDIVISIBILITY. 
REGARDLESS OF THE CONSIDERATIONS PROMPTING THE INSURANCE COMPANIES TO
HEDGE THEIR LIFE INSURANCE CONTRACTS WITH ANNUITIES, EACH TIME AN
ANNUITY-LIFE INSURANCE COMBINATION WAS WRITTEN, TWO ITEMS OF PROPERTY,
AN ANNUITY POLICY AND AN INSURANCE POLICY, WERE TRANSFERRED TO THE
PURCHASER.  THE ANNUITY POLICY COULD HAVE BEEN ACQUIRED SEPARATELY, AND
THE LIFE INSURANCE POLICY COULD HAVE BEEN, AND WAS, CONVEYED
SEPARATELY.  THE ANNUITIES AROSE FROM PERSONAL OBLIGATIONS OF THE
INSURANCE COMPANIES WHICH WERE IN NO WAY CONDITIONED ON THE CONTINUED
EXISTENCE OF THE LIFE INSURANCE CONTRACTS.  THESE PERIODIC PAYMENTS
WOULD HAVE CONTINUED UNIMPAIRED AND WITHOUT DIMINUTION IN SIZE
THROUGHOUT THE LIFE OF THE INSURED EVEN IF THE LIFE INSURANCE POLICIES
HAD BEEN EXTINGUISHED.  (FN8)  QUITE CLEARLY THE ANNUITY PAYMENTS AROSE
SOLELY FROM THE ANNUITY POLICIES.  THE USE AND ENJOYMENT OF THE ANNUITY
POLICIES WERE ENTIRELY INDEPENDENT OF THE LIFE INSURANCE POLICIES. 
BECAUSE OF THIS INDEPENDENCE, THE COMMISSIONER MAY NOT, BY AGGREGATING
THE TWO TYPES OF POLICIES INTO ONE INVESTMENT, CONCLUDE THAT BY
RECEIVING THE ANNUITIES, THE DECEDENT HAD RETAINED INCOME FROM THE LIFE
INSURANCE CONTRACTS.  (FN9) 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  OF COURSE, AN ADDITIONAL AMOUNT IS ADDED TO THE PREMIUMS TO
COMPENSATE THE INSURANCE COMPANIES FOR EXPENSES. 

FN2  IN AGREEMENT WITH THE DECISION BELOW ARE BURR V. COMMISSIONER,
156 F.2D 871 (C.A.2D CIR.), AND CONWAY V. GLENN, 193 F.2D 965 (C.A. 6TH
CIR.).  TO THE CONTRARY IS BOHNEN V. HARRISON, 199 F.2D 492 (C.A. 7TH
CIR.), AFFIRMED BY AN EQUALLY DIVIDED COURT, 345 U.S. 946. 

FN3  SECTION 302(G) OF THE REVENUE ACT OF 1926, 44 STAT. 9, 71,
EXEMPTED FROM THE ESTATE PROCEEDS UP TO $40,000 "RECEIVABLE  ...  AS
INSURANCE" BY PERSONS OTHER THAN THE EXECUTOR.  THE PROCEEDS IN
HELVERING V. LE GIERSE WERE NOT CONSIDERED TO HAVE ARISEN FROM
"INSURANCE" AS CONGRESS MEANT THE WORD TO BE USED BECAUSE THE ORDINARY
"INSURANCE RISK" WAS NOT PRESENT.  THE INSURANCE COMPANY HAD NOT
UNDERTAKEN TO SHIFT THE RISK OF PREMATURE DEATH FROM THE INSURED AND TO
DISTRIBUTE THE RISK AMONG ITS OTHER POLICYHOLDERS.  ON THE CONTRARY, BY
REQUIRING A CONCURRENT PURCHASE OF A NONREFUNDABLE ANNUITY CONTRACT,
THE COMPANY HAD NEUTRALIZED THE RISK AT THE EXPENSE OF THE "INSURED." 
THE REMAINING RISK, WHETHER THE ANNUITANT WOULD LIVE BEYOND THE
ACTUARIAL PREDICTION AND AFTER THE INSURANCE POLICY HAD BEEN
SURRENDERED, WAS CONSIDERED NOT AN INSURANCE RISK BUT A RISK OF
ORDINARY INVESTMENT.  CF.  MEISENHOLDER, TAXATION OF ANNUITY CONTRACTS
UNDER ESTATE AND INHERITANCE TAXES, 39 MICH. L. REV. 856, 883. 

THE PRINCIPLE THAT THE PROCEEDS ARE NOT CONSIDERED "RECEIVABLE ...
AS INSURANCE" APPLIES WHETHER AT DEATH THE RIGHTS AND BENEFITS OF THE
POLICIES ARE IN THE HANDS OF THE INSURED OR OF ANOTHER PERSON. 
GOLDSTONE V. UNITED STATES, 325 U.S. 687, 690. 

FN4  CF. GOLDSTONE V. UNITED STATES, SUPRA. 

FN5  NOR ARE THE ASSIGNEES LIKE SECOND ANNUITANTS IN SURVIVORSHIP
ANNUITIES OR JOINT ANNUITANTS IN JOINT AND SURVIVOR ANNUITIES.  THE
DONOR'S AND DONEE'S ANNUITIES HAVE A COMMON FUND AS THE SOURCE SO THAT
IF THE SOURCE OF THE DONOR'S ANNUITY IS EXTINGUISHED, THE DONEE'S
ANNUITY IS DESTROYED.  THE ENTIRE ECONOMIC ENJOYMENT OF THE SECOND
ANNUITANT MUST, REALISTICALLY SPEAKING, AWAIT THE DEATH OF THE FIRST
ANNUITANT, AND A SUBSTANTIAL PORTION OF THE SURVIVING JOINT ANNUITANT'S
ENJOYMENT IS SIMILARLY POSTPONED.  CF., E.G., COMMISSIONER V. WILDER'S
ESTATE, 118 F.2D 281; COMMISSIONER V. CLISE, 122 F.2D 998; MEARKLE'S
ESTATE V. COMMISSIONER, 129 F.2D 386. 

FN6  SECTION 811(C)(1)(C) OF THE INTERNAL REVENUE CODE OF 1939, AS
AMENDED BY SECTION 7(A) OF THE ACT OF OCTOBER 25, 1949, C. 720, 63
STAT. 891, 895. 

FN7  SECTION 811(C)(1)(B) OF THE INTERNAL REVENUE CODE OF 1939, AS
AMENDED BY SECTION 7(A) OF THE ACT OF OCTOBER 25, 1949, C. 720, 63
STAT. 894.  THIS PROVISION WAS ALSO A PART OF SECTION 302(C) OF THE
REVENUE ACT OF 1926 AT THE TIME APPLICABLE IN HELVERING V. LE GIERSE. 

FN8  WHERE A DECEDENT, NOT IN CONTEMPLATION OF DEATH, HAS TRANSFERRED
PROPERTY TO ANOTHER IN RETURN FOR A PROMISE TO MAKE PERIODIC PAYMENTS
TO THE TRANSFEROR FOR HIS LIFETIME, IT HAS BEEN HELD THAT THESE
PAYMENTS ARE NOT INCOME FROM THE TRANSFERRED PROPERTY SO AS TO INCLUDE
THE PROPERTY IN THE ESTATE OF THE DECEDENT.  E.G., ESTATE OF SARAH A.
BERGAN, 1 T.C. 543, ACQ., 1943 CUM. BULL.  2; SECURITY TRUST & SAVINGS
BANK, TRUSTEE, 11 B.T.A. 833; SEYMOUR JOHNSON, 10 B.T.A. 411; HIRSH V.
UNITED STATES, 68 CT. CL. 508, 35 F.2D 982 (CT.  CL. 1929); CF. WELCH
V. HALL, 134 F.2D 366.  IN THESE CASES THE PROMISE IS A PERSONAL
OBLIGATION OF THE TRANSFEREE, THE OBLIGATION IS USUALLY NOT CHARGEABLE
TO THE TRANSFERRED PROPERTY, AND THE SIZE OF THE PAYMENTS IS NOT
DETERMINED BY THE SIZE OF THE ACTUAL INCOME FROM THE TRANSFERRED
PROPERTY AT THE TIME THE PAYMENTS ARE MADE. 

FN9 FOR THE TREATMENT BY LOWER COURTS OF THE LIFE INSURANCE-ANNUITY
COMBINATION IN A SIMILAR SITUATION IN THE FIELD OF FEDERAL INCOME
TAXATION, CF. COMMISSIONER V. MEYER, 139 F.2D 256; EDNA E. MEREDITH, 1
T.C.M. 847, AFFIRMED, HELVERING V. MEREDITH, 140 F.2D 973; JOHN
KOEHRER, 4 T.C.M. 219. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE CLARK
JOIN, DISSENTING. 

FOR THE REASONS STATES BY THE COURT BELOW, 241 F.2D 690, AND ALSO IN
CONWAY V. GLENN, 193 F.2D 965, AND BURR V. COMMISSIONER, 156 F.2D 871,
IT SEEMS TO ME THAT, FOR FEDERAL ESTATE TAX PURPOSES, THIS CASE IS
INDISTINGUISHABLE FROM ONE IN WHICH A SETTLOR PLACES A SUM IN TRUST
UNDER SUCH TERMS THAT HE SHALL RECEIVE THE INCOME FROM IT FOR LIFE, AND
THE PRINCIPAL SHALL BE PAYABLE TO DESIGNATED BENEFICIARIES UPON HIS
DEATH.  AS THE PRINCIPAL, IN THAT EVENT, WOULD BE INCLUDABLE IN THE
SETTLOR'S ESTATE FOR FEDERAL ESTATE TAX PURPOSES, SO HERE THE PROCEEDS
OF THE INSURANCE POLICIES SHOULD BE INCLUDED IN THIS DECEDENT'S
ESTATE.  ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS. 
..END :















DENVER UNION STOCK YARD CO. V. PRODUCERS LIVESTOCK MARKETING ASSOCIATION
356 U.S. 282 


NO. 106.  ARGUED MARCH 10, 1958 - DECIDED APRIL 28, 1958* - 241 F.2D
192, AFFIRMED. 

*TOGETHER WITH NO. 118, BENSON, SECRETARY OF AGRICULTURE, V.
PRODUCERS LIVESTOCK MARKETING ASSOCIATION, ALSO ON CERTIORARI TO THE
SAME COURT. 


UNDER THE PACKERS AND STOCKYARDS ACT, A MARKET AGENCY REGISTERED AND
DOING BUSINESS AT SEVERAL DIFFERENT STOCKYARDS INSTITUTED AN
ADMINISTRATIVE PROCEEDING CHALLENGING THE VALIDITY OF REGULATIONS
ISSUED BY A STOCKYARD COMPANY WHICH PROVIDED THAT A MARKET AGENCY
ENGAGED IN BUSINESS AT ITS STOCKYARD SHALL NOT, IN THE "NORMAL
MARKETING AREA" THEREOF, SOLICIT BUSINESS FOR, OR DIVERT BUSINESS TO,
ANY OTHER MARKET.  THE MARKET AGENCY INTRODUCED NO EVIDENCE TO SHOW
THAT THE REGULATIONS WERE UNREASONABLE BUT CLAIMED THAT THEY WERE
INVALID ON THEIR FACE AS A MATTER OF LAW.  THE STOCKYARD COMPANY MOVED
TO DISMISS THE COMPLAINT, AND IT WAS DISMISSED ON THE GROUND THAT THE
REGULATIONS COULD NOT BE FOUND INVALID ON THEIR FACE.  THE COURT OF
APPEALS REVERSED AND REMANDED THE CASE TO THE SECRETARY OF AGRICULTURE
WITH DIRECTIONS TO ISSUE AN ORDER REQUIRING THE STOCKYARD COMPANY TO
CEASE AND DESIST FROM ISSUING OR ENFORCING THE REGULATIONS.  HELD:  THE
JUDGMENT IS AFFIRMED.  PP. 283-290. 

(A)  THE REGULATIONS CONFLICT WITH SEC. 304 OF THE ACT, WHICH MAKES
IT "THE DUTY" OF EVERY MARKET AGENCY "TO FURNISH UPON REASONABLE
REQUEST, WITHOUT DISCRIMINATION, REASONABLE STOCKYARD SERVICES AT SUCH
STOCKYARD" (MEANING EVERY STOCKYARD WHERE THE MARKET AGENCY IS
REGISTERED), AND THEY ARE FORBIDDEN BY SEC. 307, WHICH MAKES UNLAWFUL
"EVERY UNJUST, UNREASONABLE, OR DISCRIMINATORY REGULATION OR
PRACTICE."  PP. 286-287. 

(B)  IN THESE CIRCUMSTANCES, THE TAKING OF EVIDENCE AS TO WHETHER THE
REGULATIONS WERE "REASONABLE" WAS NOT ESSENTIAL TO THE "FULL HEARING"
PROVIDED FOR IN SEC. 310 OF THE ACT.  PP. 287-288. 

(C)  STOCKYARDS SUBJECT TO THE ACT ARE PUBLIC UTILITIES AND, AS SUCH,
MAY NOT ENGAGE IN DISCRIMINATION OR OTHER MONOPOLISTIC PRACTICES.  PP.
288-290. 

DENVER UNION STOCK YARD CO. V. PRODUCERS LIVESTOCK MARKETING
ASSOCIATION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION STARTED WITH A COMPLAINT FILED BY RESPONDENT, A
MARKET AGENCY AT THE DENVER UNION STOCKYARD, WITH THE SECRETARY OF
AGRICULTURE, ALLEGING THAT CERTAIN REGULATIONS ISSUED BY DENVER UNION
STOCK YARD COMPANY ARE INVALID UNDER THE PACKERS AND STOCKYARDS ACT, 42
STAT. 159, AS AMENDED, 7 U.S.C. SEC. 181 ET SEQ. THE REGULATIONS
COMPLAINED OF PROVIDE: 

"NO MARKET AGENCY OR DEALER ENGAGING IN BUSINESS AT THIS STOCKYARD
SHALL, UPON STOCK YARD COMPANY PROPERTY, OR ELSEWHERE, NOR SHALL ANY
OTHER PERSON UPON STOCK YARD COMPANY PROPERTY: 

"(1)  SOLICIT ANY BUSINESS FOR OTHER MARKETS, FOR SALE AT OUTSIDE
FEED YARDS OR AT COUNTRY POINTS, OR ENDEAVOR TO SECURE CUSTOMERS TO
SELL OR PURCHASE LIVESTOCK ELSEWHERE; OR: 

"(2)  IN ANY MANNER DIVERT OR ATTEMPT TO DIVERT LIVESTOCK FROM THIS
MARKET WHICH WOULD OTHERWISE NORMALLY COME TO THIS STOCK YARD; OR: 

"(3)  ENGAGE IN ANY PRACTICE OR DEVICE WHICH WOULD IMPAIR OR
INTERFERE WITH THE NORMAL FLOW OF LIVESTOCK TO THE PUBLIC MARKET AT
THIS STOCKYARD."  (FN1) 

THE COMPLAINT WAS ENTERTAINED; AND THE STOCK YARD COMPANY ADMITTED
THAT IT ISSUED THE REGULATIONS AND ALLEGED THAT THEY WERE NECESSARY TO
ENABLE IT "TO FURNISH, UPON REASONABLE REQUEST, WITHOUT DISCRIMINATION,
REASONABLE STOCKYARD SERVICES  ...  AND TO ENABLE THE PATRONS OF THE
DENVER UNION STOCKYARDS TO SECURE, UPON REASONABLE REQUEST, WITHOUT
DISCRIMINATION, REASONABLE STOCKYARD SERVICES  ...  ."  THE PRAYER IN
THE ANSWER WAS THAT THE STOCK YARD COMPANY BE GRANTED AN ORAL HEARING
AND THAT THE COMPLAINT BE DISMISSED.  THEREAFTER THE STOCK YARD COMPANY
FILED A MOTION TO REQUIRE RESPONDENT TO PRODUCE FOR EXAMINATION CERTAIN
BOOKS AND RECORDS.  RESPONDENT OPPOSED THE MOTION, ELECTING TO STAND
UPON THE ILLEGALITY OF THE REGULATIONS AS A MATTER OF LAW.  THE
EXAMINER CERTIFIED THE QUESTION TO THE JUDICIAL OFFICER FOR DECISION,
RECOMMENDING THAT THE PROCEEDING BE DISMISSED.  THE JUDICIAL OFFICER
(FN2) DISMISSED THE COMPLAINT, HOLDING THAT HE COULD NOT FIND THE
REGULATIONS INVALID ON THEIR FACE.  15 AGR.  DEC.  638. THE COURT OF
APPEALS REVERSED, (FN3) HOLDING THAT THE REGULATIONS ARE AN UNLAWFUL
RESTRICTION ON THE STATUTORY RIGHTS AND DUTIES OF STOCKYARDS AND MARKET
AGENCIES UNDER THE ACT.  241 F.2D 192.  IT REMANDED THE CASE TO THE
SECRETARY OF AGRICULTURE WITH DIRECTIONS TO ISSUE A CEASE AND DESIST
ORDER AGAINST THE ISSUANCE OR ENFORCEMENT OF THE REGULATIONS.   THE
CASE IS HERE BY CERTIORARI WHICH WE GRANTED IN VIEW OF THE PUBLIC
IMPORTANCE OF THE ISSUE RAISED.  353 U.S. 982. 

THE ACT DEFINES "MARKET AGENCY" AS "ANY PERSON ENGAGED IN THE
BUSINESS OF (1) BUYING OR SELLING IN COMMERCE LIVE STOCK AT A STOCKYARD
ON A COMMISSION BASIS OR (2) FURNISHING STOCKYARD SERVICES."  SEC.
301(C).  THE ACT ALSO PROVIDES THAT "NO PERSON SHALL CARRY ON THE
BUSINESS OF A MARKET AGENCY ...  AT SUCH STOCKYARD UNLESS HE HAS
REGISTERED WITH THE SECRETARY  ...  ."  SEC. 303.  RESPONDENT IS
REGISTERED NOT ONLY WITH THE DENVER UNION STOCK YARD CO. BUT WITH OTHER
STOCKYARDS AS WELL.  ONE IMPACT OF THE REGULATIONS ON RESPONDENT IS
THEREFORE CLEAR:  HAVING REGISTERED WITH THIS STOCK YARD COMPANY IT MAY
NOT, IN THE "NORMAL MARKETING AREA" OF THE DENVER YARD (WHICH IS
DEFINED IN THE REGULATIONS TO EMBRACE A VAST AREA IN COLORADO), (FN4)
SOLICIT BUSINESS FOR, OR DIVERT IT TO, OTHER MARKETS.  THE MARKET
AGENCY REGISTERED WITH THE DENVER STOCK YARD CO. MUST, WHILE WORKING IN
THE"NORMAL MARKETING AREA" OF THAT YARD, SOLICIT OR DO BUSINESS
EXCLUSIVELY FOR IT AND FOR NONE OF THE OTHER STOCKYARDS WITH WHICH IT
IS REGISTERED. 

YET SEC. 304 OF THE ACT MAKES IT "THE DUTY" OF EVERY MARKET AGENCY
"TO FURNISH UPON REASONABLE REQUEST, WITHOUT DISCRIMINATION, REASONABLE
STOCKYARD SERVICES AT SUCH STOCKYARD."  SECTION 301(B) DEFINES
STOCKYARD SERVICES TO MEAN "SERVICES OR FACILITIES FURNISHED AT A
STOCKYARD IN CONNECTION WITH THE RECEIVING, BUYING OR SELLING ON A
COMMISSION BASIS OR OTHERWISE, MARKETING, FEEDING, WATERING, HOLDING,
DELIVERY, SHIPMENT, WEIGHING, OR HANDLING, IN COMMERCE, OF LIVE
STOCK."  AND SEC. 307 PROHIBITS AND DECLARES UNLAWFUL "EVERY UNJUST,
UNREASONABLE, OR DISCRIMINATORY REGULATION OR PRACTICE." 

THE WORDS "AT SUCH STOCKYARD" AS USED IN SEC. 304 OBVIOUSLY MEAN, AS
APPLIED TO A "MARKET AGENCY," EVERY STOCKYARD WHERE THAT "MARKET
AGENCY" IS REGISTERED.  FROM THE ACT IT SEEMS PLAIN, THEREFORE, THAT
THE DUTY OF RESPONDENT WOULD BE TO FURNISH A PRODUCER IN THE DENVER
AREA STOCKYARD SERVICE AT KANSAS CITY, IF THE PRODUCER SO DESIRED. 
STOCKYARDS AND MARKET AGENCIES ARE MADE PUBLIC UTILITIES BY THE ACT. 
STAFFORD V. WALLACE, 258 U.S. 495, 516; SWIFT & CO. V. UNITED STATES,
316 U.S. 216, 232.  THEIR DUTY IS TO SERVE ALL, IMPARTIALLY AND WITHOUT
DISCRIMINATION.  THE REGULATIONS BAR BOTH THE MARKET AGENCY AND THE
STOCKYARD FROM PERFORMING THEIR STATUTORY DUTY.  A MARKET AGENCY
REGISTERED WITH DENVER COULD NOT BY FORCE OF THE CHALLENGED REGULATIONS
FURNISH PRODUCERS IN THE DENVER AREA STOCKYARD SERVICES AT KANSAS CITY
OR AT ANY OTHER STOCKYARD WHERE THE AGENCY IS ALSO REGISTERED.  THE
CONFLICT SEEMS CLEAR AND OBVIOUS; AND NO EVIDENCE COULD MAKE IT
CLEARER.  (FN5) THE CASE IS AS SIMPLE TO US AS THAT OF A UTILITY THAT
REFUSES TO SELL ANY POWER TO A CUSTOMER IF THE CUSTOMER BUYS ANY POWER
FROM A COMPETITOR; AS CLEAR AS AN ATTEMPT BY A CARRIER BY RAIL TO DENY
SERVICE TO ONE WHO SHIPS BY TRUCK.  CF. NORTHERN PACIFIC R. CO. V.
UNITED STATES, 356 U.S. 1; INTERNATIONAL SALT CO. V. UNITED STATES, 332
U.S. 392. 

WHEN AN ACT CONDEMNS A PRACTICE THAT IS "UNFAIR" OR "UNREASONABLE,"
EVIDENCE IS NORMALLY NECESSARY TO DETERMINE WHETHER A PRACTICE, RULE,
OR REGULATION TRANSCENDS THE BOUNDS.  SEE ASSOCIATED PRESS V. LABOR
BOARD, 301 U.S. 103; CHICAGO BOARD OF TRADE V. UNITED STATES, 246 U.S.
231; SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553.  BUT WHERE AN ACT
DEFINES A DUTY IN EXPLICIT TERMS, A HEARING ON THE QUESTION OF
STATUTORY CONSTRUCTION IS OFTEN ALL THAT IS NEEDED.  SEE SECURITIES AND
EXCHANGE COMM'N V. RALSTON PURINA CO., 346 U.S. 119 (PUBLIC OFFERING);
ADDISON V. HOLLY HILL CO., 322 U.S. 607 (AREA OF PRODUCTION).  IT IS,
OF COURSE, TRUE THAT SEC. 310 OF THE ACT PROVIDES FOR A "FULL HEARING"
ON A COMPLAINT AGAINST A "REGULATION" OF A STOCKYARD.  THAT WAS ALSO
TRUE OF THE ACT INVOLVED IN UNITED STATES V. STORER BROADCASTING CO.,
351 U.S. 192.  BUT WE OBSERVED IN THAT CASE THAT WE NEVER PRESUME THAT
CONGRESS INTENDED AN AGENCY "TO WASTE TIME ON APPLICATIONS THAT DO NOT
STATE A VALID BASIS FOR A HEARING."  ID., AT 205. 

THE CRITICAL STATUTORY WORDS IN THE PRESENT CASE ARE FROM SEC. 304
PROVIDING, "IT SHALL BE THE DUTY OF EVERY STOCKYARD OWNER AND MARKET
AGENCY TO FURNISH UPON REASONABLE REQUEST, WITHOUT DISCRIMINATION,
REASONABLE STOCKYARD SERVICES AT SUCH STOCKYARD."  THE SECRETARY'S
EMPHASIS IN THE ARGUMENT WAS ON THE WORDS "REASONABLE STOCKYARD
SERVICES."  BY ANALOGY TO THE ANTITRUST CASES, A CASE IS BUILT FOR FACT
FINDINGS ESSENTIAL TO A DETERMINATION OF WHAT IS "REASONABLE."  SEE
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; CHICAGO BOARD OF TRADE
V. UNITED STATES, SUPRA.  CERTAINLY AN EVIDENTIARY HEARING WOULD BE
NECESSARY IF, FOR EXAMPLE, A METHOD OF HANDLING LIVESTOCK AT A
PARTICULAR STOCKYARD WAS CHALLENGED AS UNREASONABLE.  SEE MORGAN V.
UNITED STATES, 298 U.S. 468; MORGAN V. UNITED STATES, 304 U.S. 1;
UNITED STATES V. MORGAN, 307 U.S. 183.  BUT THAT ARGUMENT IS MISAPPLIED
HERE.  IT MISCONCEIVES THE THRUST OF THE PRESENT REGULATIONS, WHICH ARE
AIMED AT KEEPING MARKET AGENCIES REGISTERED AT DENVER FROM DOING
BUSINESS FOR PRODUCERS, WHO ARE IN THE "NORMAL MARKETING AREA" OF THE
DENVER YARD, AT ANY OTHER MARKET.  THESE REGULATIONS BAR THEM FROM
RENDERING NOT SOME STOCKYARD SERVICES AT THE OTHER YARDS, BUT ANY AND
ALL OTHER STOCKYARD SERVICES FOR THOSE PRODUCERS, EXCEPT AT DENVER. 
"NO" STOCKYARD SERVICES CANNOT POSSIBLY BE EQUATED WITH "REASONABLE"
STOCKYARD SERVICES UNDER THIS ACT. 

THE ARGUMENT CONTRA IS PREMISED ON THE THEORY THAT STOCKYARD OWNERS,
LIKE FEUDAL BARONS OF OLD, CAN DIVIDE UP THE COUNTRY, SET THE BOUNDS OF
THEIR DOMAIN, ESTABLISH "NO TRESPASSING" SIGNS, AND MAKE MARKET
AGENCIES REGISTERING WITH THEM THEIR EXCLUSIVE AGENTS.  THE INSTITUTION
OF THE EXCLUSIVE AGENCY IS, OF COURSE, WELL KNOWN IN THE LAW; AND THE
LEGAL PROBLEM HERE WOULD BE QUITE DIFFERENT IF THE ACT ENVISAGED
STOCKYARDS AS STRICTLY PRIVATE ENTERPRISE.  BUT, AS NOTED, CONGRESS
PLANNED DIFFERENTLY.  THE SENATE REPORT PROCLAIMED THAT THESE "GREAT
PUBLIC MARKETS" ARE "PUBLIC UTILITIES."   S. REP. NO. 39, 67TH CONG.,
1ST SESS. 7.  THE HOUSE REPORT, IN THE SAME VEIN, PLACED THIS
REGULATION OF THE STOCKYARDS ON A PAR WITH THE REGULATION OF THE
RAILROADS.  H.R. REP. NO. 77, 67TH CONG., 1ST SESS. 10.  IT WAS AGAINST
THIS BACKGROUND THAT CHIEF JUSTICE TAFT WROTE IN STAFFORD V. WALLACE,
SUPRA, AT 514: 

"THE OBJECT TO BE SECURED BY THE ACT IS THE FREE AND UNBURDENED FLOW
OF LIVE STOCK FROM THE RANGES AND FARMS OF THE WEST AND THE SOUTHWEST
THROUGH THE GREAT STOCKYARDS AND SLAUGHTERING CENTERS ON THE BORDERS OF
THAT REGION, AND THENCE IN THE FORM OF MEAT PRODUCTS TO THE CONSUMING
CITIES OF THE COUNTRY IN THE MIDDLE WEST AND EAST, OR, STILL AS LIVE
STOCK, TO THE FEEDING PLACES AND FATTENING FARMS IN THE MIDDLE WEST OR
EAST FOR FURTHER PREPARATION FOR THE MARKET." 

HE WENT ON TO SAY THAT THE ACT TREATS THE STOCKYARDS "AS GREAT
NATIONAL PUBLIC UTILITIES," ID., AT 516.  HIS OPINION ECHOES AND RE
ECHOES WITH THE FEAR OF MONOPOLY IN THIS FIELD. 

WE ARE TOLD, HOWEVER, THAT THE ECONOMICS OF THE BUSINESS HAS CHANGED,
THAT WHILE AT THE PASSAGE OF THE ACT MOST LIVESTOCK PURCHASES WERE AT
THESE STOCKYARDS, NOW A SUBSTANTIAL PORTION - ABOUT 40 PERCENT, IT IS
SAID - TAKES PLACE AT PRIVATE LIVESTOCK MARKETS SUCH AS FEED YARDS AND
COUNTRY POINTS.  FROM THIS IT IS ARGUED THAT THE PRESENT REGULATION IS
NEEDED TO KEEP THE BUSINESS IN THE PUBLIC MARKETS, WHERE THERE IS
REGULATION AND COMPETITION, AND OUT OF THE PRIVATE MARKETS WHERE THERE
IS NO COMPETITIVE BIDDING AND REGULATION.  IF THE ACT DOES NOT FIT THE
PRESENT ECONOMICS OF THE BUSINESS, A PROBLEM IS PRESENTED FOR THE
CONGRESS.  THOUGH OUR PREFERENCE WERE FOR MONOPOLY AND AGAINST
COMPETITION, WE SHOULD "GUARD AGAINST THE DANGER OF SLIDING
UNCONSCIOUSLY FROM THE NARROW CONFINES OF LAW INTO THE MORE SPACIOUS
DOMAIN OF POLICY."  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S.  177,
194. 

WE TAKE THE ACT AS WRITTEN.  AS WRITTEN, IT IS AIMED AT ALL MONOPOLY
PRACTICES, OF WHICH DISCRIMINATION IS ONE.  WHEN CHIEF JUSTICE TAFT
WROTE OF THE AIM OF THE ACT IN TERMS OF THE ENDS OF A MONOPOLY, HE
WROTE FAITHFULLY TO THE LEGISLATIVE HISTORY.  THE SENATE REPORT, SUPRA,
AT 7, STATED "IT HAS BEEN DEMONSTRATED BEYOND QUESTION THAT THE HISTORY
OF THE DEVELOPMENT OF THIS INDUSTRY HAS BEEN THE HISTORY OF ONE EFFORT
AFTER ANOTHER TO SET UP MONOPOLY."  THE PRESENT REGULATIONS, IT SEEMS,
HAVE HAD A LONG ANCESTRY.  AFFIRMED. 

FN1  THE REGULATION GOES ON TO STATE THE APPLICABILITY OF THE
FOREGOING PROVISIONS. 

"THE NORMAL MARKETING AREA FROM WHICH LIVESTOCK WOULD NORMALLY COME
TO THE PUBLIC MARKET AT THIS STOCKYARD, AND WHICH IS THE AREA TO WHICH
THIS SUBDIVISION (C) SHALL APPLY, IS DEFINED AS ALL OF THE STATE OF
COLORADO EXCEPT THAT PART LISTED AS FOLLOWS: 

"THE AREA LYING EAST OF THE LINE BEGINNING WITH THE WESTERLY BOUNDARY
OF THE COUNTY OF SEDGWICK WHERE IT INTERSECTS THE NEBRASKA STATE LINE;
THENCE SOUTH ALONG THE COUNTY LINE OF SEDGWICK AND PHILLIPS COUNTIES;
THENCE WEST AND SOUTH ALONG THE WESTERN BOUNDARY OF YUMA COUNTY TO ITS
INTERSECTION WITH U.S. HIGHWAY 36; THENCE WEST TO COPE AND SOUTH ALONG
COLORADO HIGHWAY 59 TO EADS, COLORADO; THENCE WESTERLY ALONG HIGHWAY 96
TO ORDWAY; THENCE SOUTH ON HIGHWAY 71 TO TIMPAS; THENCE SOUTHWESTERLY
VIA HIGHWAY 350 TO TRINIDAD; THENCE SOUTH TO NEW MEXICO STATE LINE. 

"THE PROVISIONS OF PARAGRAPH (C) DO NOT APPLY ON LIVESTOCK SOLELY
USED FOR BREEDING PURPOSES." 

FN2  THE AUTHORITY OF THE JUDICIAL OFFICER WAS DELEGATED BY THE
SECRETARY OF AGRICULTURE (10 FED. REG. 13769; 11 FED. REG. 177A-233; 18
FED. REG. 3219, 3648; 19 FED. REG. 11) PURSUANT TO THE ACT OF APRIL 4,
1940, 54 STAT. 81, 5 U.S.C. SEC. 516A ET SEQ. 

FN3  THE COURT OF APPEALS HAD JURISDICTION TO REVIEW THE CASE UNDER
64 STAT. 1129, 5 U.S.C. SEC. 1032. 

FN4  FOR THE DEFINITION OF THE "NORMAL MARKETING AREA" SEE NOTE 1,
SUPRA. 

FN5  WHETHER THE REGULATIONS AS APPLIED TO "DEALERS" ARE VALID IS A
QUESTION WE DO NOT REACH. 

MR. JUSTICE CLARK, CONCURRING. 

I AGREE THAT INVALIDITY IS EVIDENT ON THE FACE OF THE REGULATIONS
ISSUED BY THE DENVER UNION STOCK YARD COMPANY.  SECTION 304 OF THE
PACKERS AND STOCKYARDS ACT, 42 STAT. 164, AS AMENDED, 7 U.S.C. SEC.
205, REQUIRES A MARKET AGENCY REGISTERED AT A GIVEN STOCKYARD TO
FURNISH REASONABLE SERVICES AT THAT STOCKYARD ON REASONABLE REQUEST OF
A CUSTOMER.  RESPONDENT'S COMPLAINT ALLEGES THAT RESPONDENT IS
REGISTERED AT OTHER STOCKYARDS BESIDES THE DENVER YARD, AND BECAUSE OF
PETITIONER'S MOTION TO DISMISS THE COMPLAINT WE TAKE THOSE ALLEGATIONS
AS TRUE.  UNDER SEC. 304, THE SEVERAL REGISTRATIONS IMPOSE A DUTY ON
THE PART OF RESPONDENT TO OFFER COLORADO CUSTOMERS REASONABLE SERVICE
AT EACH YARD WHERE IT IS REGISTERED.  SINCE THE DENVER REGULATIONS
PROHIBIT RESPONDENT'S FULFILLMENT OF THAT STATUTORY DUTY, THEY WOULD
APPEAR VOID ON THEIR FACE UNDER SEC. 307, WHICH DECLARES UNLAWFUL
"EVERY UNJUST, UNREASONABLE, OR DISCRIMINATORY REGULATION OR
PRACTICE."  42 STAT. 165, AS AMENDED, 7 U.S.C. SEC. 208.    THE
REGULATORY SCHEME DEVISED BY THE CONGRESS, HOWEVER, MAKES IT POSSIBLE
FOR INVALIDITY ON THE FACE OF THE REGULATIONS TO BE OVERCOME BY
EVIDENCE SHOWING THAT THEIR APPLICATION AND OPERATION IS NOT IN FACT
UNJUST, UNREASONABLE, OR DISCRIMINATORY.  PRIMARY JURISDICTION IS
PLACED IN THE SECRETARY TO MAKE SUCH A DETERMINATION.  BECAUSE OF THAT,
I SHOULD THINK THE NORMAL COURSE OF ACTION WHERE DISMISSAL IS FOUND
UNWARRANTED WOULD BE TO REMAND THE CASE TO THE SECRETARY FOR A FULL
HEARING. 

THAT PROCEDURE DOES NOT APPEAR TO BE IN ORDER HERE, HOWEVER, BECAUSE
THE PURPOSE AND INTENDED EFFECT OF THE REGULATIONS IS CRYSTAL CLEAR. 
THE PRESIDENT OF THE DENVER STOCKYARD, BEFORE THE CASE TOOK ITS PRESENT
POSTURE, FILED AN AFFIDAVIT IN THE RECORD ALLEGING IN SUBSTANCE THAT IN
THE PERIOD JULY 1, 1951, TO JUNE 30, 1955, RESPONDENT MARKET AGENCY
"CONTINUALLY DIVERTED AWAY FROM THE DENVER UNION STOCKYARDS A LARGE
VOLUME OF LIVESTOCK" WHICH NORMALLY WOULD HAVE BEEN CONSIGNED TO THAT
YARD, THAT RESPONDENT SOLD LAMBS "DIRECT TO MANY PACKERS  ...
INCLUDING SOME LOCATED ON THE ATLANTIC COAST AND IN INTERIOR IOWA," AND
THAT "MANY LIKE TRANSACTIONS WERE CONDUCTED BY RESPONDENT IN ITS OWN
NAME OR FOR ITS ACCOUNT BY ITS WHOLLY OWNED SUBSIDIARY, THE WESTERN
ORDER BUYERS, OR BY THE EMPLOYEES OF RESPONDENT OR ITS SAID
SUBSIDIARY."  THE AFFIDAVIT FURTHER RECITES THAT, "AS A RESULT, THE
DENVER UNION STOCK YARD COMPANY IN THE EARLY PART OF THIS YEAR (1955)
ISSUED ITEM 10(C) OF ITS RULES AND REGULATIONS WHICH WAS DESIGNED TO
...  ELIMINATE AN UNJUST, UNREASONABLE, AND DISCRIMINATORY PRACTICE BY
RESPONDENT  ...  ."  THE PURPOSE AND EFFECT OF THE REGULATIONS IS MADE
CERTAIN BY THE ADDITIONAL STATEMENT THAT, "IT WAS FELT THAT MARKET
AGENCIES MAY NOT ENGAGE IN TRANSACTIONS AWAY FROM THE DENVER MARKET
INCONSISTENT WITH THE DUTIES IMPOSED UPON THEM TO RENDER THE BEST
POSSIBLE SERVICE WHICH, WHEN BOILED DOWN, MEANS THAT THEY MUST REFRAIN
FROM DIVERTING THE NORMAL FLOW OF LIVESTOCK TO THIS MARKET IF THEY ARE
TO CONTINUE TO OPERATE AT THE MARKET."  WITH GREATER FORCE THAN ANY
OTHER POSSIBLE EVIDENCE, THIS FRANK STATEMENT REVEALS THAT PETITIONER
INTENDED TO, AND DID, MONOPOLIZE THE LIVESTOCK MARKET IN THE ENTIRE
STATE OF COLORADO, SAVE A SMALL AREA ON THE EASTERN BORDER.  SINCE THE
DENVER STOCKYARD ITSELF WOULD IMPOSE THE ONLY SANCTION POSSIBLE FOR
VIOLATION OF THE REGULATION, NAMELY, CANCELLATION OF REGISTRATION, THE
AFFIDAVIT IS A COMPLETE ANSWER TO ANY EVIDENCE OFFERED AS TO
REASONABLENESS IN PRACTICAL OPERATION.  THE REGULATIONS, ACCORDING TO
THEIR AUTHOR, BLUNTLY SAY THAT TO CONTINUE OPERATION ON THE DENVER
MARKET A REGISTRANT "MUST REFRAIN" FROM SELLING COLORADO LIVESTOCK,
UNLESS FROM THE SMALL AREA MENTIONED ABOVE, ON ANY OTHER MARKET.  IT
WOULD BE A USELESS FORMALITY TO REMAND IN THE LIGHT OF SUCH AN
IRREFUTABLE ACKNOWLEDGMENT. 

IT ALSO IS WORTHY OF NOTE THAT PETITIONER ELECTED TO DEFEND THE
REGULATIONS WITHOUT ANY EVIDENCE WHEN IT MOVED TO DISMISS THE COMPLAINT
BEFORE THE SECRETARY.  PETITIONER COULD HAVE OFFERED ITS PRESENTLY
PROFFERED EXPLANATIONS THEN BUT CHOSE NOT TO DO SO.  WHILE SUCH ACTION
DOES NOT PRECLUDE A REMAND NOW FOR A FULL HEARING, PETITIONER'S ABOUT
FACE ON LOSING THE BATTLE LENDS NO SUPPORT TO ITS CAUSE. 

FOR THESE REASONS I JOIN THE JUDGMENT OF AFFIRMANCE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE SOLE QUESTION PRESENTED BY THE CASE IS THIS: 

UNDER HIS POWERS AND DUTIES TO EFFECTUATE THE SCHEME DESIGNED BY
CONGRESS THROUGH THE PACKERS AND STOCKYARDS ACT OF 1921, FOR THE
REGULATION OF THE STOCKYARDS INDUSTRY, IS THE SECRETARY OF AGRICULTURE
BARRED FROM DETERMINING ON THE BASIS OF EVIDENCE WHETHER OR NOT
REGULATIONS ARE REASONABLE THAT ARE PROMULGATED BY THE DENVER
STOCKYARDS FOR THE PURPOSE OF PREVENTING THE DIVERSION OF STOCKYARD
SERVICES FROM THE DENVER STOCKYARDS THAT AS A MATTER OF NORMAL BUSINESS
FLOW WOULD GO TO THE DENVER YARDS, ON THE CHALLENGE TO SUCH REGULATIONS
BY A MARKET AGENCY REGISTERED AT THE DENVER STOCKYARDS TO FURNISH
"REASONABLE STOCKYARD SERVICES" AT THAT YARD? 

TO DENY THE SECRETARY OF AGRICULTURE THE POWER EVEN TO HEAR EVIDENCE
AS TO THE REASONABLENESS OF SUCH REGULATIONS IS TO MISCONCEIVE THE
WHOLE SCHEME FOR THE REGIONAL REGULATION OF THE STOCKYARDS INDUSTRY FOR
WHICH STOCKYARDS AND MARKET AGENCIES ARE GEOGRAPHICALLY LICENSED, AND
TO DENY TO THE SECRETARY OF AGRICULTURE POWERS OF ADMINISTRATION THAT
CONGRESS HAS CONFERRED UPON HIM. 

WHILE A REGULATION MAY, LIKE THE ONE IN QUESTION, ON ITS FACE - THAT
IS, ABSTRACTLY CONSIDERED - APPEAR TO BE UNREASONABLE BECAUSE
DISCRIMINATORY, ELUCIDATION OF SUCH A REGULATION IN THE CONCRETE, ON
THE BASIS OF ITS PRACTICAL OPERATION IN LIGHT OF EVIDENCE, MAY NEGATIVE
SUCH APPEARANCE.  IT IS FOR THE SECRETARY OF AGRICULTURE TO HEAR SUCH
RELEVANT EVIDENCE AND TO ASSESS IT, SUBJECT TO THE APPROPRIATE SCOPE OF
JUDICIAL REVIEW.  THIS PROCEEDING SHOULD THEREFORE BE REMANDED TO THE
SECRETARY OF AGRICULTURE FOR APPROPRIATE ACTION.  THESE VIEWS ARE
ELABORATED IN MR. JUSTICE WHITTAKER'S OPINION, WHICH I JOIN. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER AND MR.
JUSTICE HARLAN JOIN, DISSENTING. 

I RESPECTFULLY DISSENT.  THE QUESTION PRESENTED IS WHETHER CERTAIN
REGULATIONS ISSUED BY THE OWNER OF A POSTED STOCKYARD ARE VOID ON THEIR
FACE.  PETITIONER, THE DENVER UNION STOCK YARD COMPANY, IS THE
"STOCKYARD OWNER" (FN1) OF THE DENVER UNION STOCKYARD, A FACILITY IN
DENVER, COLORADO, WHICH CONSTITUTES A "STOCKYARD" WITHIN THE MEANING OF
SEC.  302 OF THE PACKERS AND STOCKYARDS ACT, (FN2) 42 STAT. 159, AS
AMENDED, 7 U.S.C. SEC. 181 ET SEQ. - HEREINAFTER CALLED THE ACT.  IN
1921 THE SECRETARY OF AGRICULTURE, PURSUANT TO SEC. 302(B) OF THE ACT,
"POSTED" THAT STOCKYARD, AND IT THEREUPON BECAME, AND HAS SINCE BEEN,
SUBJECT TO THE PROVISIONS OF THE ACT.  UNDER SEC. 304, IT BECAME THE
"DUTY" OF PETITIONER "TO FURNISH UPON REASONABLE REQUEST, WITHOUT
DISCRIMINATION, REASONABLE STOCKYARD SERVICES AT SUCH STOCKYARD"; (FN3)
AND UNDER SEC. 307, IT ALSO BECAME ITS "DUTY" TO "ESTABLISH, OBSERVE,
AND ENFORCE JUST, REASONABLE, AND NONDISCRIMINATORY REGULATIONS AND
PRACTICES IN RESPECT TO THE FURNISHING OF STOCKYARD SERVICES" AT THAT
STOCKYARD.  PURSUANT THERETO PETITIONER FILED WITH THE SECRETARY ON MAY
11, 1955, AN AMENDMENT OF ITS EXISTING REGULATIONS TO BECOME EFFECTIVE
MAY 25, 1955.  THE AMENDED REGULATIONS, IN PERTINENT PART, PROVIDED: 

"NO MARKET AGENCY OR DEALER (FN4) ENGAGING IN BUSINESS AT THIS
STOCKYARD SHALL, UPON STOCK YARD COMPANY PROPERTY, OR ELSEWHERE, NOR
SHALL ANY OTHER PERSON UPON STOCK YARD COMPANY PROPERTY: 

"(1)  SOLICIT ANY BUSINESS FOR OTHER MARKETS, FOR SALE AT OUTSIDE
FEED YARDS OR AT COUNTRY POINTS, OR ENDEAVOR TO SECURE CUSTOMERS TO
SELL OR PURCHASE LIVESTOCK ELSEWHERE; OR: 

"(2)  IN ANY MANNER DIVERT OR ATTEMPT TO DIVERT LIVESTOCK FROM THIS
MARKET WHICH WOULD OTHERWISE NORMALLY COME TO THIS STOCK YARD; OR: 

"(3)  ENGAGE IN ANY PRACTICE OR DEVICE WHICH WOULD IMPAIR OR
INTERFERE WITH THE NORMAL FLOW OF LIVESTOCK TO THE PUBLIC MARKET AT
THIS STOCKYARD."  (FN5) 

SOMETIME AFTER THE DENVER UNION STOCKYARD WAS "POSTED," RESPONDENT,
PURSUANT TO THE PROVISIONS OF SEC. 303, "REGISTERED" WITH THE SECRETARY
AS A MARKET AGENCY - NOT AS A "DEALER" - ON THE DENVER UNION STOCKYARD,
AND THEREBY ACQUIRED THE STATUS OF A "MARKET AGENCY" UNDER THE ACT "AT
SUCH STOCKYARD."  SECTION 301(C) DEFINES THE TERM "MARKET AGENCY" TO
MEAN:  "ANY PERSON ENGAGED IN THE BUSINESS OF (1) BUYING OR SELLING IN
COMMERCE LIVESTOCK AT A STOCKYARD ON A COMMISSION BASIS, OR (2)
FURNISHING STOCKYARD SERVICES."  BY SEC. 306(A), IT BECAME THE DUTY OF
RESPONDENT, AS A "MARKET AGENCY AT SUCH STOCKYARD," TO PRINT, FILE WITH
THE SECRETARY, AND KEEP OPEN TO PUBLIC INSPECTION "AT THE DENVER
STOCKYARD," A SCHEDULE SHOWING ALL RATES AND CHARGES FOR "STOCKYARD
SERVICES" TO BE FURNISHED BY IT "AT SUCH STOCKYARD"; AND, UNDER SEC.
304, IT BECAME ITS DUTY "TO FURNISH UPON REASONABLE REQUEST, WITHOUT
DISCRIMINATION, REASONABLE STOCKYARD SERVICES AT SUCH STOCKYARD." 
(FN6)

OF ANYTHING DONE  ...  BY ANY STOCKYARD OWNER  ...  IN VIOLATION OF THE
PROVISIONS OF THE ACT MAY  ...  APPLY TO THE SECRETARY BY PETITION
WHICH SHALL BRIEFLY STATE THE FACTS, WHEREUPON THE COMPLAINT  ...
SHALL BE FORWARDED BY THE SECRETARY TO THE DEFENDANT, WHO SHALL BE
CALLED UPON  ...  TO ANSWER IT IN WRITING, WITHIN A REASONABLE TIME TO
BE SPECIFIED BY THE SECRETARY."  THE FOLLOWING SECTION (SEC. 310), IN
RELEVANT PART, PROVIDES:  "WHENEVER AFTER FULL HEARING UPON A COMPLAINT
...  THE SECRETARY IS OF THE OPINION THAT ANY  ...  REGULATION  ... OF
A STOCKYARD OWNER  ...  FOR OR IN CONNECTION WITH THE FURNISHING OF
STOCKYARD SERVICES, IS OR WILL BE UNJUST, UNREASONABLE, OR
DISCRIMINATORY, THE SECRETARY: 

"(A)  MAY DETERMINE AND PRESCRIBE  ...  WHAT REGULATION  ...  IS OR
WILL BE JUST, REASONABLE, AND NONDISCRIMINATORY TO BE THEREAFTER
FOLLOWED; AND: 

"(B)  MAY MAKE AN ORDER THAT SUCH OWNER OR OPERATOR  ...  (3) SHALL
CONFORM TO AND OBSERVE THE REGULATION  ...  SO PRESCRIBED." 

INVOKING THE SECRETARY'S REGULATORY POWERS UNDER SEC. 310(A),
RESPONDENT, ON JULY 7, 1955, FILED A COMPLAINT WITH THE SECRETARY,
ALLEGING THAT THE QUOTED REGULATIONS WERE UNAUTHORIZED BECAUSE THE ACT
AUTHORIZED THE STOCKYARD OWNER "TO ESTABLISH 'REGULATIONS AND PRACTICES
ONLY IN RESPECT TO THE FURNISHING OF STOCKYARD SERVICES'; AND THAT THE
PRACTICE PURPORTED TO BE PRESCRIBED OR ESTABLISHED BY THE REGULATION
DOES NOT  ...  RELATE TO THE FURNISHING OF STOCKYARD SERVICES AND IS
THEREFORE UNAUTHORIZED AND INVALID"; AND, WITHOUT WAIVING THAT
CONTENTION, IT FURTHER ALLEGED THAT THE REGULATION "IS UNJUST,
UNREASONABLE AND DISCRIMINATORY, AND SHOULD BE SET ASIDE AS UNLAWFUL";
IT THEN PROCEEDED TO STATE ITS CONCLUSIONS RESPECTING THE OPERATION AND
EFFECT OF THE REGULATIONS, AND ULTIMATELY PRAYED THAT THEY "BE SET
ASIDE AND ANNULLED." 

THEREUPON THE SECRETARY SENT A COPY OF THE COMPLAINT TO PETITIONER,
AND, IN A COVERING LETTER, STATED THAT THE COMPLAINT WOULD BE
ENTERTAINED AS A "DISCIPLINARY PROCEEDING" IN ACCORDANCE WITH SEC.
202.6(B) OF HIS RULES OF PRACTICE; ADVISED THAT PETITIONER WAS REQUIRED
TO FILE AN ANSWER WITHIN 20 DAYS FROM RECEIPT OF THE COMPLAINT
"CONTAINING A DEFINITE STATEMENT OF THE FACTS WHICH CONSTITUTE THE
GROUNDS OF DEFENSE"; AND CONCLUDED THAT, UNDER HIS RULES OF PRACTICE,
"THE BURDEN OF PROOF WOULD BE UPON THE COMPLAINANT TO ESTABLISH THE
MATTERS COMPLAINED OF."  PETITIONER ANSWERED, ADMITTING THAT IT WAS THE
"OWNER" OF THE "POSTED" DENVER UNION "STOCKYARDS"; THAT RESPONDENT WAS
"REGISTERED" TO DO BUSINESS THEREON AS A "MARKET AGENCY"; THAT IT HAD
PUBLISHED THE QUESTIONED REGULATIONS, BUT SPECIFICALLY DENIED THE
CONCLUSIONS CONCERNING THE INTERPRETATION AND EFFECT OF THE
REGULATIONS, AND GENERALLY DENIED ALL OTHER AVERMENTS OF THE COMPLAINT,
AND THEN PROCEEDED TO ALLEGE FACTS WHICH IT CONCLUDED MADE THE
REGULATIONS REASONABLE AND NECESSARY TO PREVENT UNFAIR AND UNJUSTLY
DISCRIMINATORY PRACTICES BY MARKET AGENCIES AND DEALERS, REGISTERED AS
SUCH AT THAT STOCKYARD, IN CONNECTION WITH RECEIVING AND HANDLING
LIVESTOCK, AND TO ENABLE IT TO RENDER, AND TO REQUIRE MARKET AGENCIES
TO RENDER, "REASONABLE STOCKYARD SERVICES" AT THE DENVER UNION
STOCKYARD 

SOON AFTERWARD, PETITIONER, IN PREPARING FOR THE HEARING, FILED WITH
THE SECRETARY AND SERVED UPON RESPONDENT A MOTION TO PRODUCE FOR
INSPECTION CERTAIN OF THE LATTER'S BOOKS AND RECORDS, ALLEGED TO
CONTAIN EVIDENCE RELEVANT AND MATERIAL TO THE ISSUES.  RESPONDENT THEN
FILED A "REPLY" TO THE MOTION IN WHICH IT RESISTED PRODUCTION OF THE
BOOKS AND RECORDS UPON THE GROUND THAT THE REGULATIONS WERE VOID ON
THEIR FACE.  PETITIONER MOVED TO STRIKE THAT REPLY AS NOT RESPONSIVE TO
THE MOTION TO PRODUCE.  AFTER ARGUMENT, THE HEARING EXAMINER ISSUED AN
"INTERIM RULING," IN WHICH HE SAID, "WE CANNOT HOLD, AS COMPLAINANT
ASKS, THAT RESPONDENT'S REGULATION VIOLATES THE LAW ON ITS FACE.  WE
MUST HAVE FACTS TO SEE WHETHER THE REGULATION, OR ACTION TAKEN UNDER
IT, IS REASONABLE UNDER THE CIRCUMSTANCES"; BUT HE DID NOT SUSTAIN THE
MOTION TO PRODUCE.  INSTEAD HE SET THE PROCEEDING FOR HEARING AT DENVER
ON JANUARY 24, 1956, AND INDICATED THAT IF, AFTER RESPONDENT HAD
PRODUCED ITS EVIDENCE, IT APPEARED NECESSARY TO THE PRESENTATION OF
PETITIONER'S DEFENSE HE WOULD SUSTAIN THE MOTION. 

ON DECEMBER 23, 1955, RESPONDENT FILED WHAT IT TERMED AN "ELECTION TO
REST," RECITING "THAT THIS COMPLAINANT ELECTS TO STAND UPON THE
ILLEGALITY OF SAID REGULATION, AS A MATTER OF LAW," AND THAT IT WOULD
"NOT PRESENT EVIDENCE IN THIS CAUSE."  THEREUPON PETITIONER MOVED TO
DISMISS THE COMPLAINT FOR FAILURE OF RESPONDENT "TO SUSTAIN THE BURDEN
OF MAKING A PRIMA FACIE CASE IN SUPPORT OF ITS COMPLAINT."  AFTER
HEARING THE PARTIES UPON THAT MOTION, THE HEARING EXAMINER CERTIFIED
THE PROCEEDING TO THE JUDICIAL OFFICER (FN7) FOR DECISION, WITH A
RECOMMENDATION THAT IT BE DISMISSED.  THE JUDICIAL OFFICER, AFTER
HEARING THE PARTIES ORALLY AND UPON BRIEFS, CONCLUDED THAT THE
REGULATIONS WERE NOT VOID ON THEIR FACE AND THAT, IN THE TOTAL ABSENCE
OF EVIDENCE, HE COULD NOT FIND THAT THE REGULATIONS WERE INVALID, AND
DISMISSED THE PROCEEDING.  15 AGR.  DEC.  638.    PURSUANT TO 5 U.S.C.
SEC. 1034, RESPONDENT FILED IN THE COURT OF APPEALS ITS PETITION
AGAINST THE UNITED STATES AND THE SECRETARY OF AGRICULTURE TO REVIEW
THE DECISION AND ORDER OF THE JUDICIAL OFFICER.  (FN8)  THE DENVER
UNION STOCK YARD COMPANY INTERVENED AS A RESPONDENT.  THE COURT OF
APPEALS, CONCLUDING THAT "THE COMPULSION OF THE REGULATION IS IN
IMMEDIATE CONFLICT WITH THE REQUIREMENT OF SEC. 304 WHICH CONTEMPLATES
AND IMPOSES THE DUTY UPON MARKETING AGENCIES TO RENDER REASONABLE
SERVICES TO THEIR CUSTOMERS AT EVERY STOCKYARD WHERE THEY DO BUSINESS,"
HELD THAT THE REGULATIONS WERE VOID ON THEIR FACE AND REVERSED THE
DECISION OF THE JUDICIAL OFFICER, AND ALSO REMANDED THE PROCEEDING TO
THE SECRETARY "WITH INSTRUCTIONS TO VACATE THE ORDER DISMISSING THE
COMPLAINT AND TO ENTER AN APPROPRIATE ORDER REQUIRING THE DENVER UNION
STOCKYARD COMPANY TO CEASE AND DESIST FROM ISSUING OR ENFORCING THE
REGULATION."  241 F.2D, AT 196-197.  UPON PETITION OF THE DENVER UNION
STOCK YARD COMPANY IN NO. 106, AND OF THE SECRETARY OF AGRICULTURE IN
NO. 118, WE GRANTED CERTIORARI.  353 U.S. 982. 

THIS COURT NOW AFFIRMS.  ITS OPINION, LIKE THAT OF THE COURT OF
APPEALS, IS BASED UPON THE CONCLUSION THAT THE REGULATIONS CONFLICT
WITH THE PROVISIONS OF SEC. 304 OF THE ACT.  THE MAJORITY HAVE
EXPRESSED THE BASIS OF THEIR CONCLUSION AS FOLLOWS:  "THE MARKET AGENCY
REGISTERED WITH THE DENVER STOCK YARD CO. MUST, WHILE WORKING IN THE
'NORMAL MARKETING AREA' OF THAT YARD, SOLICIT OR DO BUSINESS
EXCLUSIVELY FOR IT AND FOR NONE OF THE OTHER STOCKYARDS WITH WHICH IT
IS REGISTERED.  YET SEC. 304 OF THE ACT MAKES IT 'THE DUTY' OF EVERY
MARKET AGENCY 'TO FURNISH UPON REASONABLE REQUEST, WITHOUT
DISCRIMINATION, REASONABLE STOCKYARD SERVICES AT SUCH STOCKYARD'  ...
.  FROM THE ACT IT SEEMS PLAIN, THEREFORE, THAT THE DUTY OF RESPONDENT
WOULD BE TO FURNISH A PRODUCER IN THE DENVER AREA STOCKYARD SERVICE AT
KANSAS CITY, IF THE PRODUCER SO DESIRED ...  .  THEIR DUTY IS TO SERVE
ALL, IMPARTIALLY AND WITHOUT DISCRIMINATION.  THE REGULATIONS BAR BOTH
THE MARKET AGENCY AND THE STOCKYARD FROM PERFORMING THEIR STATUTORY
DUTY  ...  .  THE CONFLICT SEEMS CLEAR AND OBVIOUS; AND NO EVIDENCE
COULD MAKE IT CLEARER." 

IN MY VIEW, THE REASONING AND CONCLUSION OF BOTH THE COURT OF APPEALS
AND THIS COURT MISINTERPRET THE PROVISIONS OF THE ACT, AND THE
REGULATIONS AS WELL. 

THE FIRST, AND MOST GRIEVOUS, MISINTERPRETATION STEMS FROM THE
FAILURE TO APPRECIATE THAT RESPONDENT'S STATUS, PRIVILEGES AND
OBLIGATIONS, AS A REGISTERED "MARKET AGENCY" AT THE DENVER UNION
STOCKYARD, ARE LIMITED BY THE ACT TO "SUCH STOCKYARD," AND THAT THE
CHALLENGED REGULATIONS APPLY ONLY TO A "MARKET AGENCY OR DEALER
ENGAGING IN BUSINESS AT THIS STOCKYARD" - THE DENVER UNION STOCKYARD. 
AS EARLIER SHOWN, SEC. 303 PLAINLY STATES THAT AFTER THE SECRETARY HAS
"POSTED" A PARTICULAR STOCKYARD "NO PERSON SHALL CARRY ON THE BUSINESS
OF A MARKET AGENCY  ...  AT SUCH STOCKYARD UNLESS HE HAS REGISTERED
WITH THE SECRETARY STATING, AMONG OTHER THINGS THE KINDS OF STOCKYARD
SERVICES  ...  WHICH HE FURNISHES AT SUCH STOCKYARD."  BY EQUALLY CLEAR
LANGUAGE SEC. 306(A) MAKES IT THE DUTY OF "EVERY MARKET AGENCY AT SUCH
STOCKYARD TO PRINT, FILE WITH THE SECRETARY AND KEEP OPEN TO PUBLIC
INSPECTION AT THE STOCKYARD, SCHEDULES SHOWING ALL RATES AND CHARGES
FOR THE STOCKYARD SERVICES FURNISHED BY SUCH PERSON AT SUCH
STOCKYARD."  SECTION 304 IS NO LESS PLAIN IN STATING THAT IT IS THE
DUTY OF EVERY "MARKET AGENCY TO FURNISH UPON REASONABLE REQUEST,
WITHOUT DISCRIMINATION, REASONABLE STOCKYARD SERVICES AT SUCH
STOCKYARD."  I SUBMIT THAT THESE PROVISIONS OF THE ACT LEAVE NO ROOM TO
DOUBT THAT A PERSON BY REGISTERING WITH THE SECRETARY TO DO BUSINESS AS
A MARKET AGENCY AT A PARTICULAR STOCKYARD ACQUIRES THE RIGHTS, AND
ASSUMES THE OBLIGATIONS, OF A "MARKET AGENCY" ONLY "AT SUCH
STOCKYARD."  AND INASMUCH AS THE CHALLENGED REGULATIONS APPLY ONLY TO A
"MARKET AGENCY OR DEALER ENGAGING IN BUSINESS AT THIS STOCKYARD" - THE
DENVER UNION STOCKYARD - THEY CANNOT HAVE ANY APPLICATION OR EFFECT AT
ANY OTHER STOCKYARD.  REGISTRATION TO DO BUSINESS AS A "MARKET AGENCY"
AT "SUCH STOCKYARD" DOES NOT GIVE THE REGISTRANT THE STATUS OF A
"MARKET AGENCY," OR CREATE THE RIGHT OR OBLIGATION TO FURNISH
"STOCKYARD SERVICES," AT ALL STOCKYARDS IN THE NATION, OR AT ANY PLACE
OTHER THAN A PARTICULAR STOCKYARD WHERE SO REGISTERED AS A "MARKET
AGENCY."  WHILE A MARKET AGENCY IS A PUBLIC UTILITY (STAFFORD V.
WALLACE, 258 U.S. 495; SWIFT & CO. V. UNITED STATES, 316 U.S. 216,
232), IT IS SUCH ONLY ON THE POSTED STOCKYARD WHERE REGISTERED AS A
MARKET AGENCY.  DOUBTLESS ONE WHO HAS THE STATUS OF A "MARKET AGENCY,"
AND THUS ALSO OF A PUBLIC UTILITY, AT THE DENVER STOCKYARD, MAY, BY AN
ADDITIONAL REGISTRATION UNDER SEC. 303, ACQUIRE A LIKE STATUS AT
ANOTHER POSTED STOCKYARD, YET HE WOULD NOT THEREBY BECOME ONE MARKET
AGENCY OR ONE PUBLIC UTILITY COVERING THE SEVERAL STOCKYARDS WHERE SO
REGISTERED.  ON THE CONTRARY, HIS STATUS AS A MARKET AGENCY AND PUBLIC
UTILITY ON EACH OF SUCH POSTED STOCKYARDS WOULD BE JUST AS SEVERAL,
SEPARATE AND INDEPENDENT AS THOUGH OWNED BY DIFFERENT PERSONS.  IN
LEGAL EFFECT, A "MARKET AGENCY" AND PUBLIC UTILITY ON ONE POSTED
STOCKYARD IS A SEPARATE ENTITY FROM A "MARKET AGENCY" AND PUBLIC
UTILITY ON ANOTHER, EVEN THOUGH BOTH BE OWNED BY THE SAME PERSON.  AND
REGULATIONS PROMULGATED BY THE "STOCKYARD OWNER" OF ONE OF SUCH
STOCKYARDS, APPLICABLE TO A "MARKET AGENCY" THEREON, COULD HAVE NO
APPLICATION OR EFFECT AT ANOTHER POSTED STOCKYARD OR TO A REGISTERED
"MARKET AGENCY" THEREON.  HENCE THE QUESTION IS NOT WHETHER THE
CHALLENGED REGULATIONS MIGHT RESTRICT A "MARKET AGENCY" ON SOME OTHER
POSTED STOCKYARD FROM FURNISHING REASONABLE STOCKYARD SERVICES AT SUCH
OTHER STOCKYARD, FOR THE CHALLENGED REGULATIONS HAVE NO APPLICATION TO
A "MARKET AGENCY" ON SUCH OTHER STOCKYARD, BUT APPLY ONLY TO A "MARKET
AGENCY OR DEALER ENGAGING IN BUSINESS AT THE DENVER UNION STOCKYARD." 

THE QUESTION THEN IS WHETHER THE CHALLENGED REGULATIONS MAY BE SAID,
FROM THEIR FACE AS A MATTER OF LAW, TO OBSTRUCT A MARKET AGENCY ON THE
DENVER UNION STOCKYARD FROM FURNISHING JUST, REASONABLE AND
NONDISCRIMINATORY STOCKYARD SERVICES AT THAT STOCKYARD, WHERE, AND ONLY
WHERE, THEY APPLY.  I THINK ANALYSIS OF THEM SHOWS THAT THEY DO NOT
UPON THEIR FACE IN ANY WAY CONFLICT WITH SEC. 304 NOR OBSTRUCT "THE
DUTY OF A MARKET AGENCY TO FURNISH UPON REASONABLE REQUEST, WITHOUT
DISCRIMINATION, REASONABLE STOCKYARD SERVICES AT SUCH STOCKYARD" - THE
DENVER UNION STOCKYARD - AS REQUIRED BY THAT SECTION.  IT WILL BE
OBSERVED THAT THEY PROHIBIT A "MARKET AGENCY OR DEALER ENGAGING IN
BUSINESS AT THIS STOCKYARD" FROM DOING SIX THINGS.  THE FIRST
SUBSECTION PROVIDES THAT THEY SHALL NOT (1) "SOLICIT ANY BUSINESS FOR
OTHER MARKETS," (2) SOLICIT ANY BUSINESS "FOR SALE AT OUTSIDE FEED
YARDS," (3) SOLICIT ANY BUSINESS FOR SALE "AT COUNTRY POINTS," OR (4)
"ENDEAVOR TO SECURE CUSTOMERS TO SELL OR PURCHASE LIVESTOCK ELSEWHERE";
AND THE SECOND SUBSECTION PROVIDES THAT THEY SHALL NOT (5) "IN ANY
MANNER DIVERT OR ATTEMPT TO DIVERT LIVESTOCK FROM THIS MARKET  ...  ";
AND THE THIRD SUBSECTION PROVIDES THAT THEY SHALL NOT (6) "ENGAGE IN
ANY PRACTICE OR DEVICE WHICH WOULD IMPAIR OR INTERFERE WITH THE NORMAL
FLOW OF LIVESTOCK TO THE PUBLIC MARKET AT THIS STOCKYARD."  SURELY THE
REGULATIONS PROHIBITING A REGISTERED "MARKET AGENCY" ON THE DENVER
UNION STOCKYARD FROM SOLICITING BUSINESS FOR OTHER MARKETS, AND FROM
SOLICITING BUSINESS (LIVESTOCK) FOR SALE "AT OUTSIDE FEED YARDS" OR "AT
COUNTRY POINTS," AND FROM ENDEAVORING TO INDUCE CUSTOMERS NOT TO BUY OR
SELL THEIR LIVESTOCK ON THE DENVER STOCKYARD, DO NOT AT ALL PROHIBIT IT
FROM FURNISHING STOCKYARD SERVICES (NOTE 3) "AT SUCH STOCKYARD" (SEC.
304); AND, MOREOVER, AS SHOWN, SUCH A MARKET AGENCY IS NOT AUTHORIZED
BY THE ACT TO FURNISH STOCKYARD SERVICES "AT OUTSIDE FEED YARDS," AT
"COUNTRY POINTS," OR AT ANY PLACE OTHER THAN THE POSTED STOCKYARD UPON
WHICH IT IS REGISTERED AS A MARKET AGENCY.  SEC. 303.  AND INASMUCH AS
A "MARKET AGENCY," AS DISTINGUISHED FROM A "DEALER," MAY NOT BUY AND
SELL LIVESTOCK FOR ITS OWN ACCOUNT, BUT ONLY ON A "COMMISSION BASIS"
FOR OTHERS, IT CANNOT LAWFULLY OWN ANY LIVESTOCK TO "DIVERT," BUT IT IS
IN POSITION TO "ATTEMPT TO DIVERT" LIVESTOCK FROM THE DENVER MARKET,
AND THUS TO BOYCOTT IT, BY ATTEMPTING TO CAUSE THOSE WHO ARE OWNERS OF
LIVESTOCK TO SHIP AND SELL ELSEWHERE.  A REGULATION PROHIBITING THIS
SURELY CANNOT BE SAID TO PREVENT THE MARKET AGENCY FROM FURNISHING
STOCKYARD SERVICES AT THE DENVER YARD.  LASTLY, I BELIEVE IT CANNOT
LOGICALLY BE CONTENDED THAT THE REGULATION PROHIBITING A MARKET AGENCY
ON THE DENVER YARD FROM ENGAGING "IN ANY PRACTICE OR DEVICE" WHICH
WOULD IMPAIR OR INTERFERE WITH THE NORMAL FLOW OF LIVESTOCK TO THE
DENVER STOCKYARD COULD PREVENT SUCH MARKET AGENCY FROM FURNISHING
STOCKYARD SERVICES AT THAT STOCKYARD. 

IT IS PLAIN AND UNDISPUTED THAT THE REGULATIONS MAY NOT - IN THE
TOTAL ABSENCE OF EVIDENCE, AS HERE - BE HELD VOID UNLESS IT IS CLEAR
UPON THEIR FACE THAT THERE CANNOT BE ANY CIRCUMSTANCES UNDER WHICH
THEY, OR ANY OF THEM, COULD BE LAWFUL, "JUST, REASONABLE, AND
NONDISCRIMINATORY."  SEC. 307.  AND ONLY WHEN IT AFFIRMATIVELY AND
CLEARLY SO APPEARS UPON THE FACE OF THE REGULATIONS MAY IT BE SAID THAT
A PROCEEDING TO CONTEST THEIR VALIDITY, IN WHICH NO EVIDENCE WHATEVER
IS OFFERED TO SUSTAIN THE COMPLAINT, CONSTITUTES THE "FULL HEARING"
REQUIRED BY SEC. 310.  GENERAL AMERICAN TANK CAR CORP. V. EL DORADO
TERMINAL CO., 308 U.S. 422. 

UNDER THE TERMS OF THE ACT AND OF THE REGULATIONS, WHICH WE HAVE
SHOWN, IT SEEMS ENTIRELY CLEAR THAT THIS IS NOT SUCH A CASE, AND I
THINK IT MUST FOLLOW THAT THE REGULATIONS CANNOT BE SAID TO BE VOID ON
THEIR FACE.  THE FOREGOING DEMONSTRATES THE ERROR OF THE PIVOTAL
CONCLUSION OF THE COURT OF APPEALS THAT SEC. 304 "CONTEMPLATES AND
IMPOSES THE DUTY UPON MARKETING AGENCIES (REGISTERED AS SUCH AT THE
DENVER UNION STOCKYARD) TO RENDER REASONABLE SERVICES  ...  AT EVERY
STOCKYARD WHERE THEY DO BUSINESS."  IT ALSO DEMONSTRATES, I THINK, THE
ERROR OF THE BASIC CONCLUSION OF THE OPINION OF THIS COURT THAT:  "FROM
THE ACT IT SEEMS PLAIN, THEREFORE, THAT THE DUTY OF RESPONDENT WOULD BE
TO FURNISH A PRODUCER IN THE DENVER AREA STOCKYARD SERVICE AT KANSAS
CITY, IF THE PRODUCER SO DESIRED ...  .  THEIR DUTY IS TO SERVE ALL,
IMPARTIALLY AND WITHOUT DISCRIMINATION." 

IT IS INDEED OBVIOUS THAT THE SECRETARY, AFTER THE "FULL HEARING"
CONTEMPLATED BY SEC.  310, MIGHT REASONABLY FIND FROM ALL THE FACTS
ADDUCED AT SUCH "FULL HEARING" (1) THAT THE CONDUCT OF A "MARKET
AGENCY" ON THE DENVER STOCKYARD IN BOYCOTTING THAT YARD BY SOLICITING
LIVESTOCK FOR SALE AT OTHER MARKETS, OR AT OUTSIDE FEED YARDS, OR AT
COUNTRY POINTS, OR BY ENDEAVORING TO INDUCE LIVESTOCK OWNERS NOT TO BUY
OR SELL ON THE DENVER YARD AND TO DIVERT THEIR LIVESTOCK FROM THE
DENVER MARKET, CONSTITUTES AN "UNFAIR, UNJUSTLY DISCRIMINATORY, OR
DECEPTIVE PRACTICE OR DEVICE IN CONNECTION WITH THE RECEIVING,
MARKETING, BUYING OR SELLING  ...  DELIVERY, SHIPMENT ...  OR HANDLING,
IN COMMERCE AT A STOCKYARD, OF LIVE STOCK," IN VIOLATION OF SEC. 312 OF
THE ACT (NOTE 6), AND (2) THAT THESE REGULATIONS - OR AT LEAST SOME OF
THEM - ARE A "JUST, REASONABLE, AND NONDISCRIMINATORY MEANS TO BE
THEREAFTER FOLLOWED" (SEC. 310) TO PREVENT SUCH ILLEGAL PRACTICES BY A
MARKET AGENCY ON THAT YARD, AND TO ENABLE THE STOCKYARD OWNER TO
FURNISH, AND TO REQUIRE MARKET AGENCIES ON THAT YARD TO FURNISH,
"REASONABLE STOCKYARD SERVICES," AT THE DENVER STOCKYARD.  BUT, OF
COURSE, THE SECRETARY COULD NOT MAKE FINDINGS IN A VACUUM - IN THE
TOTAL ABSENCE OF EVIDENCE AS HERE.  WE MUST KEEP IN MIND THAT CONGRESS,
BY SEC. 307, MADE IT THE "DUTY" OF PETITIONER TO "ESTABLISH, OBSERVE,
AND ENFORCE JUST, REASONABLE, AND NONDISCRIMINATORY REGULATIONS AND
PRACTICES IN RESPECT TO THE FURNISHING OF STOCKYARD SERVICES" AT ITS
POSTED STOCKYARD, AND THAT THE QUESTIONED REGULATIONS WERE PROMULGATED
BY PETITIONER PURSUANT TO THAT DUTY.  AND WE MUST NOT FORGET THAT
CONGRESS GAVE TO THE SECRETARY - NOT TO THE COURTS - THE DUTY AND POWER
TO DETERMINE WHAT REGULATIONS OF A STOCKYARD OWNER ARE OR WILL BE JUST,
REASONABLE AND NONDISCRIMINATORY TO BE FOLLOWED IN THE FUTURE, AND
PRESCRIBED THE METHOD FOR CHALLENGING, AND FOR DETERMINING, THE
VALIDITY OF SUCH REGULATIONS.  BY SEC. 309(A) CONGRESS PRESCRIBED THAT
"ANY PERSON COMPLAINING" SHALL FILE A COMPLAINT WITH THE SECRETARY
"STATING THE FACTS, WHEREUPON THE COMPLAINT THUS MADE SHALL BE
FORWARDED BY THE SECRETARY TO THE DEFENDANT, WHO SHALL BE CALLED UPON
...  TO ANSWER IT IN WRITING," AND, BY SEC. 310, CONGRESS PRESCRIBED
THAT IF "AFTER FULL HEARING UPON THE COMPLAINT  ...  , THE SECRETARY IS
OF THE OPINION THAT ANY  ...  REGULATION  ...  OF A STOCKYARD OWNER
...  IS OR WILL BE UNJUST, UNREASONABLE, OR DISCRIMINATORY, THE
SECRETARY - (A) MAY DETERMINE AND PRESCRIBE  ...  WHAT REGULATION  ...
IS OR WILL BE JUST, REASONABLE, AND NONDISCRIMINATORY TO BE THEREAFTER
FOLLOWED; AND (B) MAY MAKE AN ORDER THAT SUCH OWNER OR OPERATOR  ...
(3) SHALL CONFORM TO AND OBSERVE THE REGULATION  ...  SO PRESCRIBED." 
ONLY AFTER "FULL HEARING" OF THE FACTS AND CIRCUMSTANCES COULD THE
SECRETARY PERFORM HIS DUTY UNDER SEC. 310 OF DETERMINING "WHAT
REGULATION WILL BE JUST, REASONABLE, AND NONDISCRIMINATORY TO BE
THEREAFTER FOLLOWED."  BY THE TERMS OF THE ACT, CONGRESS LEFT THESE
DETERMINATIONS TO THE EXPERIENCED AND INFORMED JUDGMENT OF THE
SECRETARY AND GAVE TO HIM APPROPRIATE DISCRETION TO ASSESS ALL FACTORS
RELEVANT TO THE SUBJECT.  ADDISON V. HOLLY HILL CO., 322 U.S. 607,
614.  TO DETERMINE WHETHER THE REGULATIONS ARE JUST, REASONABLE AND
NONDISCRIMINATORY THE SECRETARY MUST "CONSIDER THE FACTS PECULIAR TO
THE BUSINESS TO WHICH THE RESTRAINT IS APPLIED; ITS CONDITION BEFORE
AND AFTER THE RESTRAINT WAS IMPOSED; THE NATURE OF THE RESTRAINT AND
ITS EFFECT, ACTUAL OR PROBABLE.  THE HISTORY OF THE RESTRAINT, THE EVIL
BELIEVED TO EXIST, THE REASON FOR ADOPTING THE PARTICULAR REMEDY, THE
PURPOSE OR END SOUGHT TO BE ATTAINED, ARE ALL RELEVANT FACTS."  CHICAGO
BOARD OF TRADE V. UNITED STATES, 246 U.S. 231, 238.  "COURTS DEAL WITH
CASES UPON THE BASIS OF THE FACTS DISCLOSED, NEVER WITH NONEXISTENT AND
ASSUMED CIRCUMSTANCES," ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103,
132.  "BECAUSE THE RELATION OF REMEDY TO POLICY IS PECULIARLY A MATTER
FOR ADMINISTRATIVE COMPETENCE, COURTS MUST NOT ENTER THE ALLOWABLE AREA
OF THE SECRETARY'S DISCRETION AND MUST GUARD AGAINST THE DANGER OF
SLIDING UNCONSCIOUSLY FROM THE NARROW CONFINES OF LAW INTO THE MORE
SPACIOUS DOMAIN OF POLICY."  PHELPS DODGE CORP. V. LABOR BOARD, 313
U.S. 177, 194.  AFTER SUCH "FULL HEARING" THE SECRETARY MIGHT
REASONABLY FIND, FROM ALL THE FACTS AND CIRCUMSTANCES DISCLOSED, THAT
ALL OF THE REGULATIONS WERE JUST, REASONABLE AND NONDISCRIMINATORY, OR
THAT ONLY PART OF THEM MET THAT TEST, OR THAT NONE OF THEM DID SO; BUT
IT IS EVIDENT THAT HE COULD REACH NO CONCLUSION UPON THOSE MATTERS IN
THE TOTAL ABSENCE OF ANY FACTS. 

RESPONDENT'S COMPLAINT DID NOT ALLEGE THAT THE REGULATIONS WERE VOID
ON THEIR FACE.  (FN9)  RATHER RESPONDENT INJECTED THAT QUESTION
COLLATERALLY AND FOR THE FIRST TIME BY ITS "REPLY" TO PETITIONER'S
MOTION FOR AN ORDER REQUIRING RESPONDENT TO PRODUCE CERTAIN OF ITS
RECORDS FOR INSPECTION BY PETITIONER AS A STEP IN THE LATTER'S
PREPARATION FOR THE "FULL HEARING" TO BE HELD UPON THE ISSUES OF FACT
AND LAW THAT HAD BEEN JOINED IN THE PROCEEDING; AND WHEN THE HEARING
OFFICER, AFTER CONSIDERING THAT MOTION AND REPLY, FOUND THAT HE COULD
NOT DETERMINE WHETHER THE REGULATIONS WERE VALID OR INVALID WITHOUT
FULLY HEARING THE FACTS, RESPONDENT FILED ITS "ELECTION TO REST"
STATING THAT "THIS COMPLAINANT ELECTS TO STAND UPON THE ILLEGALITY OF
SAID REGULATION, AS A MATTER OF LAW" AND THAT IT WOULD "NOT PRESENT
EVIDENCE IN THIS CASE."  RESPONDENT THUS REFUSED TO ADDUCE EVIDENCE TO
SUSTAIN ITS BURDEN OF PROOF UPON THE ISSUES TENDERED BY ITS COMPLAINT,
AND HENCE WITHDREW ITS CHALLENGE OF THE NEED FOR, AND THE
REASONABLENESS OF, THE REGULATIONS.  THE JUDICIAL OFFICER DID NOT HOLD
THAT THE REGULATIONS WERE VALID OR INVALID.  HE HELD ONLY THAT THE
QUESTION COULD NOT BE DETERMINED IN A VACUUM - WITHOUT A "FULL HEARING"
OF THE FACTS - AND DISMISSED THE PROCEEDING.  IN SO DOING, I BELIEVE HE
WAS ENTIRELY JUSTIFIED AND THAT OUR ANALYSIS OF THE LAW AND THE
REGULATIONS MAKES THIS CLEAR. 

IT IS WORTHY OF NOTE THAT THOUGH THE QUESTIONED REGULATIONS APPLY TO
"DEALERS" AS WELL AS MARKET AGENCIES ON THE DENVER STOCKYARD, THE
VALIDITY OF THE REGULATIONS IN RESPECT TO DEALERS IS IN NO WAY HERE
QUESTIONED.  YET - IN THE TOTAL ABSENCE OF EVIDENCE AND ASSUMING
CERTAIN FACTS - THIS COURT AFFIRMS THE ACTION OF THE COURT OF APPEALS
IN STRIKING DOWN THE REGULATIONS IN WHOLE ON THE GROUND THAT THEY ARE
ALL VOID UPON THEIR FACE FOR CONFLICT WITH SEC. 304 OF THE ACT.  I
BELIEVE IT HAS BEEN DEMONSTRATED THAT THERE IS NO SUCH CONFLICT, AND
THAT THE REGULATIONS ARE NOT VOID ON THEIR FACE.  IN THESE
CIRCUMSTANCES, IT WAS FOR THE SECRETARY, UNDER SEC. 310, TO SAY AFTER
"FULL HEARING" OF THE FACTS AND CIRCUMSTANCES WHETHER THE REGULATIONS -
OR SOME PART OF THEM - WERE JUST, REASONABLE AND NONDISCRIMINATORY; AND
TO SAY "WHAT REGULATION WOULD BE JUST, REASONABLE, AND
NONDISCRIMINATORY TO BE THEREAFTER FOLLOWED."  FOR THESE REASONS I
WOULD VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE
TO THAT COURT WITH INSTRUCTIONS TO DIRECT THE SECRETARY OF AGRICULTURE
TO HIMSELF INITIATE A PROCEEDING, AS HE MAY DO UNDER SEC. 309(C), TO
DETERMINE WHETHER THE CHALLENGED REGULATIONS, OR ANY OF THEM, ARE JUST,
REASONABLE AND NONDISCRIMINATORY, AND TO DETERMINE, UNDER SEC. 310,
AFTER "FULL HEARING" JUST "WHAT REGULATION OR PRACTICE IS OR WILL BE
JUST, REASONABLE, AND NONDISCRIMINATORY TO BE THEREAFTER FOLLOWED." 

FN1  BY SEC. 301(A) OF THE PACKERS AND STOCKYARDS ACT (42 STAT. 159,
AS AMENDED, 7 U.S.C. SEC. 181 ET SEQ.) THE TERM "STOCKYARD OWNER" IS
DEFINED TO MEAN "ANY PERSON ENGAGED IN THE BUSINESS OF CONDUCTING OR
OPERATING A STOCKYARD." 

FN2  SECTION 302 OF THE ACT DEFINES A STOCKYARD TO BE "ANY PLACE,
ESTABLISHMENT, OR FACILITY COMMONLY KNOWN AS STOCKYARDS, CONDUCTED OR
OPERATED FOR COMPENSATION OR PROFIT AS A PUBLIC MARKET, CONSISTING OF
PENS, OR OTHER INCLOSURES, AND THEIR APPURTENANCES, IN WHICH LIVE
CATTLE, SHEEP, SWINE, HORSES, MULES, OR GOATS ARE RECEIVED, HELD, OR
KEPT FOR SALE OR SHIPMENT IN COMMERCE." 

FN3  SECTION 301(B) DEFINES THE TERM "STOCKYARD SERVICES" TO MEAN
"SERVICES OR FACILITIES FURNISHED AT A STOCKYARD IN CONNECTION WITH THE
RECEIVING, BUYING OR SELLING ON A COMMISSION BASIS OR OTHERWISE,
MARKETING, FEEDING, WATERING, HOLDING, DELIVERY, SHIPMENT, WEIGHING, OR
HANDLING, IN COMMERCE, OF LIVE STOCK." 

FN4  SECTION 301(D) OF THE ACT DEFINES THE TERM "DEALER" TO MEAN "ANY
PERSON, NOT A MARKET AGENCY, ENGAGED IN THE BUSINESS OF BUYING OR
SELLING IN COMMERCE LIVE STOCK AT A STOCKYARD, EITHER ON HIS OWN
ACCOUNT OR AS THE EMPLOYEE OR AGENT OF THE VENDOR OR PURCHASER." 

FN5  THE REGULATIONS ALSO STATED THAT THE "AREA FROM WHICH LIVESTOCK
WOULD NORMALLY COME TO THE PUBLIC MARKET AT THIS STOCKYARD" IS THE
STATE OF COLORADO, EXCEPT APPROXIMATELY THE EASTERN ONE-SIXTH OF IT. 

THE AMENDED REGULATIONS ARE SIMILAR TO PRECEDING ONES, EFFECTIVE JUNE
1, 1938, WHICH, AMONG OTHER THINGS, SAID:  "NO PERSON, WITHOUT THE
EXPRESS PERMISSION OF THIS COMPANY IN WRITING, SHALL SOLICIT ANY
BUSINESS IN THESE YARDS FOR OTHER MARKETS, SALES AT OUTSIDE FEED YARDS
OR COUNTRY POINTS, OR ENDEAVOR TO SECURE CUSTOMERS TO SELL OR PURCHASE
LIVESTOCK ELSEWHERE."  REGULATIONS OF THE DENVER UNION STOCKYARDS
COMPANY (EFFECTIVE JUNE 1, 1938), P. 4, SEC. 11, RULES 10 AND 11, ON
FILE IN THE LIVESTOCK DIVISION, AGRICULTURAL MARKETING SERVICE, UNITED
STATES DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C. 

FN6  SECTION 312 OF THE ACT IS ALSO RELEVANT.  IT PROVIDES:  "(A) IT
SHALL BE UNLAWFUL FOR ANY STOCKYARD OWNER, MARKET AGENCY, OR DEALER TO
ENGAGE IN OR USE ANY UNFAIR, UNJUSTLY DISCRIMINATORY, OR DECEPTIVE
PRACTICE OR DEVICE IN CONNECTION WITH THE RECEIVING, MARKETING, BUYING
OR SELLING ON A COMMISSION BASIS OR OTHERWISE, FEEDING, WATERING,
HOLDING, DELIVERY, SHIPMENT, WEIGHING OR HANDLING, IN COMMERCE AT A
STOCKYARD, OF LIVE STOCK. 

"(B)  WHENEVER COMPLAINT IS MADE TO THE SECRETARY BY ANY PERSON, OR
WHENEVER THE SECRETARY HAS REASON TO BELIEVE, THAT ANY STOCKYARD OWNER,
MARKET AGENCY, OR DEALER IN VIOLATING THE PROVISIONS OF SUBDIVISION (A)
THE SECRETARY AFTER NOTICE AND FULL HEARING MAY MAKE AN ORDER THAT HE
SHALL CEASE AND DESIST FROM CONTINUING SUCH VIOLATION TO THE EXTENT
THAT THE SECRETARY FINDS THAT IT DOES OR WILL EXIST." 

FN7  AUTHORITY TO REVIEW AND DETERMINE SUCH PROCEEDINGS HAD BEEN
DELEGATED BY THE SECRETARY OF AGRICULTURE TO THE JUDICIAL OFFICER (10
FED. REG. 13769; 11 FED. REG. 177A-233; 18 FED. REG. 3219, 3648; 19
FED. REG. 11) PURSUANT TO THE ACT OF APRIL 4, 1940, 54 STAT. 81, 5
U.S.C. SEC. 516A. 

FN8  THE COURT OF APPEALS HAD JURISDICTION TO REVIEW THE PROCEEDING
UNDER 5 U.S.C. SEC. 1032. 

FN9  AS SHOWN IN THE STATEMENT, RESPONDENT ALLEGED THAT THE
REGULATION DID NOT "RELATE TO THE FURNISHING OF STOCKYARD SERVICES AND
IS THEREFORE UNAUTHORIZED AND INVALID," AND, ALTERNATIVELY, THAT THE
REGULATION "IS UNJUST, UNREASONABLE AND DISCRIMINATORY AND SHOULD BE
SET ASIDE AS UNLAWFUL." 
..END :
















PANAMA CANAL CO. V. GRACE LINE, INC. 356 U.S. 309 


NO. 251.  ARGUED APRIL 2-3, 1958 - DECIDED APRIL 28, 1958* - 243 F.2D
844, REVERSED. 

*TOGETHER WITH NO. 252, GRACE LINE, INC., ET AL. V. PANAMA CANAL CO.,
ALSO ON CERTIORARI TO THE SAME COURT. 


CERTAIN AMERICAN SHIPPING COMPANIES USING THE PANAMA CANAL SUED IN A
FEDERAL DISTRICT COURT TO COMPEL THE PANAMA CANAL COMPANY TO PRESCRIBE
LOWER TOLLS FOR THE USE OF THE CANAL AND TO REFUND TOLLS ALLEGED TO
HAVE BEEN COLLECTED ILLEGALLY IN THE PAST.  THAT COMPANY IS AN AGENCY
OF THE UNITED STATES WHOLLY OWNED BY THE UNITED STATES AND CREATED BY
CONGRESS FOR THE PURPOSE OF OPERATING AND MAINTAINING THE CANAL AND
CONDUCTING BUSINESS OPERATIONS INCIDENTAL THERETO.  IT IS AUTHORIZED,
SUBJECT TO THE APPROVAL OF THE PRESIDENT, TO FIX AND TO CHANGE FROM
TIME TO TIME THE TOLLS CHARGED FOR THE USE OF THE CANAL; BUT SUCH TOLLS
ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH A FORMULA STATED IN THE
ACT.  IN A REPORT TO CONGRESS, BASED PARTLY ON HIS INTERPRETATION OF
THE ACT AND PARTLY ON HIS VIEWS AS TO PROPER COST-ACCOUNTING METHODS,
THE COMPTROLLER GENERAL EXPRESSED THE OPINION THAT THE TOLLS BEING
CHARGED WERE TOO HIGH UNDER EXISTING LAW, AND THAT OPINION WAS THE
BASIS OF THIS SUIT.  HELD:  THE CONTROVERSY AT PRESENT IS NOT ONE
APPROPRIATE FOR JUDICIAL ACTION.  PP. 310-319. 

(A)  THE MERE FACT THAT THE COMPANY MAY SUE AND BE SUED IN ITS
CORPORATE NAME DOES NOT NECESSARILY MEAN THAT THIS SUIT CAN BE
MAINTAINED.  P. 317. 

(B)  THE INITIATION OF A PROCEEDING FOR READJUSTMENT OF THE TOLLS OF
THE CANAL IS NOT A MINISTERIAL ACT BUT IS A MATTER THAT CONGRESS HAS
LEFT TO THE DISCRETION OF THE COMPANY, AND SUCH MATTERS ARE EXCLUDED
FROM THE CATEGORIES OF CASES SUBJECT TO JUDICIAL REVIEW UNDER SEC. 10
OF THE ADMINISTRATIVE PROCEDURE ACT.  PP. 317-318. 

(C)  THE QUESTION WHETHER THE COMPANY, AS THE CREATURE OF CONGRESS
AND AGENT OF THE PRESIDENT, SHOULD NOW FIX NEW TOLLS TURNS ON DOUBTFUL
OR HIGHLY DEBATABLE INFERENCES FROM LARGE OR LOOSE STATUTORY TERMS AND
ON PROBLEMS OF COST ACCOUNTING INVOLVING QUESTIONS OF EXPERT JUDGMENT
REQUIRING CLOSE ANALYSIS AND NICE CHOICES, AND IT IS SO WIDE OPEN AND
AT LARGE AS TO BE LEFT AT THIS STAGE TO AGENCY DISCRETION.  PP. 318
319. 

PANAMA CANAL CO. V. GRACE LINE, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, AMERICAN SHIPPING COMPANIES USING THE PANAMA CANAL,
BROUGHT THIS SUIT IN THE DISTRICT COURT TO COMPEL PETITIONER, THE
PANAMA CANAL CO., TO PRESCRIBE NEW TOLLS FOR THE USE OF THE CANAL AND
TO REFUND TOLLS WHICH IT WAS ALLEGED HAD BEEN ILLEGALLY COLLECTED IN
THE PAST.  THE DISTRICT COURT DISMISSED THE COMPLAINT FOR LACK OF
JURISDICTION OF THE SUBJECT MATTER.  143 F. SUPP. 539.  THE COURT OF
APPEALS REFUSED RELIEF FOR A REFUND BUT ON OTHER PHASES OF THE
COMPLAINT ENTERED A SUMMARY JUDGMENT FOR THE RESPONDENT.  243 F.2D
844.  THE CASES ARE HERE ON PETITIONS FOR CERTIORARI WHICH WE GRANTED
BECAUSE OF THE IMPORTANCE OF THE QUESTIONS PRESENTED.  355 U.S. 810. 
(FN1) 

PETITIONER WAS CREATED BY CONGRESS IN 1950.  64 STAT. 1041.  IT HOLDS
THE ASSETS OF THE PANAMA CANAL AND HAS THE DUTY OF OPERATING AND
MAINTAINING IT.  IT MAY SUE AND BE SUED IN ITS CORPORATE NAME.  CANAL
ZONE CODE, TIT. 2, SEC. 248, 62 STAT. 1078, AS AMENDED, 64 STAT.
1038.  PRIOR TO 1950 THE PANAMA CANAL WAS OPERATED BY THE PRESIDENT
THROUGH THE GOVERNOR OF THE CANAL ZONE.  37 STAT. 561.  BUSINESS
ACTIVITIES INCIDENT TO THAT OPERATION WERE CONDUCTED BY THE PANAMA
RAILROAD CO., A FEDERAL CORPORATION, 62 STAT. 1076, WHICH WAS AN AGENCY
AND INSTRUMENTALITY OF THE UNITED STATES, IBID.  THOSE AUXILIARY
BUSINESS ACTIVITIES WERE "DESIGNED AND USED TO AID" IN THE MANAGEMENT
AND OPERATION OF THE CANAL.  SEE NEW YORK EX REL. ROGERS V. GRAVES, 299
U.S. 401, 406.  SINCE 1950 ALL THOSE BUSINESS ACTIVITIES HAVE BEEN
CARRIED ON BY PETITIONER, THE PANAMA CANAL CO., ALL OF WHOSE STOCK IS
HELD BY THE PRESIDENT OR HIS DESIGNEE, CANAL ZONE CODE, TIT. 2, SEC.
246(A), THE PRESENT DESIGNEE BEING THE SECRETARY OF THE ARMY. 

THE HAY-PAUNCEFOTE TREATY, PROCLAIMED FEBRUARY 22, 1902, 32 STAT.
1903, PROVIDED IN ARTICLE III THAT THE "CHARGES OF TRAFFIC SHALL BE
JUST AND EQUITABLE."  UNDER THE ORIGINAL PANAMA CANAL LEGISLATION, 37
STAT. 562, THE PRESIDENT WAS AUTHORIZED TO FIX THE TOLLS ON SIX MONTHS'
NOTICE BY PROCLAMATION.  UNDER THAT ACT THE TOLLS WERE TO BE NOT LESS
THAN 75 CENTS NOR MORE THAN $1.25 PER NET REGISTERED TON.  IN 1937 THE
CEILING WAS LOWERED TO $1 PER NET VESSEL TON, THE MINIMUM OF 75 CENTS
BEING RETAINED.  50 STAT. 750.  WHEN PRESIDENT TRUMAN IN 1948 SOUGHT TO
INCREASE THE TOLL RATE TO THE STATUTORY MAXIMUM, 62 STAT. 1494,
CONGRESS ASKED THE PRESIDENT TO WITHHOLD ACTION UNTIL THE ENTIRE
PROBLEM COULD BE STUDIED.  SEE H.R. REP.  NO. 1304, 81ST CONG., 1ST
SESS. 7.  PRESIDENT TRUMAN AGREED BY REVOKING HIS PROCLAMATION, 64
STAT. A433, AND AGREEING TO THE STUDY. 

ON THE BASIS OF THAT STUDY CONGRESS SEPARATED THE GOVERNMENTAL
FUNCTIONS OF THE CANAL FROM ITS TRANSIT AND BUSINESS FUNCTIONS, THE
LATTER TO BE OPERATED BY PETITIONER.  SEE H.R. DOC.  NO. 460, 81ST
CONG., 2D SESS.; H.R. REP. NO. 2935, 81ST CONG., 2D SESS.  IT WAS
LEARNED THAT IF THE CANAL WERE OPERATED AT COST, THE TOLLS WOULD HAVE
TO BE RAISED TO A PROHIBITIVE LEVEL.  CONGRESS THEREFORE UNDERTOOK TO
REDUCE THE FINANCIAL BURDEN THAT WAS IMPOSED UPON THE USERS OF THE
CANAL.  THE INTEREST ON THE CAPITAL INVESTMENT OF THE UNITED STATES WAS
REDUCED AND INTEREST ACCRUED DURING THE CONSTRUCTION PERIOD WAS TO BE
DISREGARDED FOR THE PURPOSES OF COMPUTING INTEREST ON THE CAPITAL
INVESTMENT.  FREE TRANSITS OF GOVERNMENT-OWNED VESSELS WERE ELIMINATED
FOR ACCOUNTING PURPOSES.  THE SUPPORTING BUSINESS ACTIVITIES PREVIOUSLY
OPERATED BY THE PANAMA RAILROAD CO. WERE TO BEAR A PROPORTIONATE SHARE
OF THE COST OF THE CANAL ZONE GOVERNMENT FROM WHICH THEY HAD BEEN
EXEMPTED.  H.R. DOC. NO. 460, 81ST CONG., 2D SESS.  AND THE "NET COSTS
OF OPERATION OF THE CANAL ZONE GOVERNMENT" WERE DECLARED BY CONGRESS
"TO FORM AN INTEGRAL PART OF THE COSTS OF OPERATION OF THE PANAMA CANAL
ENTERPRISE AS A WHOLE."  SEE CANAL ZONE CODE, TIT. 2, SEC. 246(E), 64
STAT. 1041. 

IT WAS TO CARRY OUT THESE PROVISIONS THAT THE CONGRESS MERGED THE
FUNCTIONS OF OPERATING AND MAINTAINING THE CANAL WITH THE BUSINESS
ACTIVITIES FORMERLY CARRIED ON BY THE PANAMA RAILROAD CO. AT THE SAME
TIME, THE CONGRESS, BY THE ACT OF SEPTEMBER 26, 1950, 64 STAT. 1038,
CANAL ZONE CODE, TIT. 2, SECS. 411, 412, MADE CHANGES IN THE PROVISIONS
FOR THE FIXING OF TOLLS. 


"THE PANAMA CANAL COMPANY IS AUTHORIZED TO PRESCRIBE AND FROM TIME TO
TIME CHANGE (1) THE RULES FOR THE MEASUREMENT OF VESSELS FOR THE PANAMA
CANAL, AND (2), SUBJECT TO THE PROVISIONS OF THE SECTION NEXT
FOLLOWING, THE TOLLS THAT SHALL BE LEVIED FOR THE USE OF THE PANAMA
CANAL: PROVIDED, HOWEVER, THAT THE RULES OF MEASUREMENT, AND THE RATES
OF TOLLS, PREVAILING ON THE EFFECTIVE DATE OF THIS AMENDED SECTION
SHALL CONTINUE IN EFFECT UNTIL CHANGED AS PROVIDED IN THIS SECTION:
PROVIDED FURTHER, THAT THE SAID CORPORATION SHALL GIVE SIX MONTHS'
NOTICE, BY PUBLICATION IN THE FEDERAL REGISTER, OF ANY AND ALL PROPOSED
CHANGES IN BASIC RULES OF MEASUREMENT AND OF ANY AND ALL PROPOSED
CHANGES IN RATES OF TOLLS, DURING WHICH PERIOD A PUBLIC HEARING SHALL
BE CONDUCTED:  AND PROVIDED FURTHER, THAT CHANGES IN BASIC RULES OF
MEASUREMENT AND CHANGES IN RATES OF TOLLS SHALL BE SUBJECT TO, AND
SHALL TAKE EFFECT UPON, THE APPROVAL OF THE PRESIDENT OF THE UNITED
STATES, WHOSE ACTION IN SUCH MATTER SHALL BE FINAL AND CONCLUSIVE." 

COMPUTING NEW TOLLS: 

"TOLLS SHALL BE PRESCRIBED AT A RATE OR RATES CALCULATED TO COVER, AS
NEARLY AS PRACTICABLE, ALL COSTS OF MAINTAINING AND OPERATING THE
PANAMA CANAL, TOGETHER WITH THE FACILITIES AND APPURTENANCES RELATED
THERETO, INCLUDING INTEREST AND DEPRECIATION, AND AN APPROPRIATE SHARE
OF THE NET COSTS OF OPERATION OF THE AGENCY KNOWN AS THE CANAL ZONE
GOVERNMENT.  IN THE DETERMINATION OF SUCH APPROPRIATE SHARE,
SUBSTANTIAL WEIGHT SHALL BE GIVEN TO THE RATIO OF THE ESTIMATED GROSS
REVENUES FROM TOLLS TO THE ESTIMATED TOTAL GROSS REVENUES OF THE SAID
CORPORATION EXCLUSIVE OF THE COST OF COMMODITIES RESOLD, AND EXCLUSIVE
OF REVENUES ARISING FROM TRANSACTIONS WITHIN THE SAID CORPORATION OR
FROM TRANSACTIONS WITH THE CANAL ZONE GOVERNMENT." 

BY SEC. 412(C) VESSELS OPERATED BY THE UNITED STATES, INCLUDING NAVAL
SHIPS, MAY "IN THE DISCRETION OF THE PRESIDENT" BE REQUIRED TO PAY
TOLLS.  IN THE EVENT THEY DO NOT, TOLLS SHALL NEVERTHELESS BE COMPUTED
FOR THAT USE AND THE AMOUNTS THEREOF "SHALL BE TREATED AS REVENUES OF
THE PANAMA CANAL COMPANY FOR THE PURPOSE OF PRESCRIBING THE RATES OF
TOLLS." 

A COMMITTEE OF THE CONGRESS IN 1953 DIRECTED PETITIONER TO DETERMINE
THE ADEQUACY OF THE CANAL TOLLS.  SEE H.R. REP. NO. 889, 83D CONG., 1ST
SESS. 10.  PETITIONER IN REPLY STATED THAT NO INCREASE IN TOLLS WAS AT
THAT TIME INDICATED BUT THAT, SHOULD CANAL TRAFFIC DECLINE, AND SHOULD
THE DECLINE APPEAR LIKELY TO CONTINUE FOR AN APPRECIABLE LENGTH OF
TIME, "THE COMPANY WILL PROMPTLY TAKE THE STEPS AVAILABLE TO IT TO
INCREASE THE RATES OF TOLLS."  (FN2) 

PETITIONER, BEING A WHOLLY OWNED GOVERNMENT CORPORATION, IS SUBJECT
TO ANNUAL AUDIT BY THE GENERAL ACCOUNTING OFFICE.  59 STAT. 599, 31
U.S.C. SEC. 850.  AND IT IS PROVIDED THAT THE COMPTROLLER GENERAL SHALL
REPORT ON THIS AUDIT TO THE CONGRESS WITH "SUCH COMMENTS AND
INFORMATION AS MAY BE DEEMED NECESSARY TO KEEP CONGRESS INFORMED ON THE
OPERATIONS AND FINANCIAL CONDITION" OF THE CORPORATION, "TOGETHER WITH
SUCH RECOMMENDATIONS" AS THE COMPTROLLER GENERAL MAY DEEM ADVISABLE. 
31 U.S.C. SEC. 851. 

THE COMPTROLLER GENERAL IN 1955 EXPRESSED THE VIEW THAT THE
PETITIONER HAD ALLOCATED TOO HIGH A SHARE OF THE COSTS OF THE CANAL
ZONE GOVERNMENT, OF THE CORPORATE OVERHEAD, AND OF INTEREST PAYMENTS TO
THE OPERATIONS OF THE CANAL AND TOO LITTLE TO ITS SUPPORTING OR
AUXILIARY ACTIVITIES.  H.R. DOC. NO. 160, 84TH CONG., 1ST SESS.
ACCORDING TO HIS METHOD OF COST ALLOCATION, THE CANAL OPERATIONS SHOWED
A LARGE SURPLUS, THE AUXILIARY OR SUPPORTING ACTIVITIES A DEFICIT. 
IBID.  HE ALSO CLAIMED THAT THE PRICES CHARGED FOR THE LATTER
ACTIVITIES WERE INADEQUATE.  IBID.  HE WENT ON TO GIVE HIS CONSTRUCTION
OF SEC. 412(B) OF THE CANAL ZONE CODE, WHICH WAS THAT THE TOLLS MUST BE
COMPUTED EXCLUSIVELY ON THE BASIS OF THE COST OF OPERATING THE CANAL
WITHOUT REFERENCE TO THE LOSSES INCIDENT TO THE AUXILIARY OR SUPPORTING
OPERATIONS.  IBID.  HE THOUGHT THIS RESULT TO BE UNSOUND AND
RECOMMENDED THAT SEC. 412(B) BE AMENDED TO PROVIDE SPECIFICALLY THAT
ANY LOSSES OF THE AUXILIARY OR SUPPORTING ACTIVITIES BE INCLUDED IN THE
COST BASIS FOR THE DETERMINATION OF THE CANAL TOLLS.  IBID.

PETITIONER VIGOROUSLY OPPOSES THAT CONSTRUCTION OF SEC. 412(B),
MAINTAINING THAT THE COMPTROLLER'S METHODS OF COST ALLOCATION AND HIS
CONCLUSIONS VIOLATE BOTH SOUND ACCOUNTING PRACTICES AND THE ACT. 
PETITIONER IN PARTICULAR OBJECTS TO THE COMPTROLLER GENERAL'S VIEW THAT
THE ACT REQUIRES THE COMPUTATION OF TOLL RATES WITHOUT REGARD TO ANY
DEFICIT IN THE OPERATION OF THE AUXILIARY OR SUPPORTING BUSINESS
ACTIVITIES.  PETITIONER CONCLUDES THAT THE DOWNWARD REVISION OF THE
TOLLS RECOMMENDED BY THE COMPTROLLER GENERAL IS NOT IN HARMONY WITH THE
CONGRESSIONAL PROGRAM AND THAT NO CHANGE IN THE TOLL FORMULA IS
NEEDED. 

IT WAS SHORTLY AFTER THE COMPTROLLER GENERAL'S REPORT FOR 1954 WAS
SUBMITTED TO THE CONGRESS THAT RESPONDENTS INSTITUTED THIS SUIT. 

IT IS, WE THINK, IMPERMISSIBLE TO CONCLUDE THAT, BECAUSE PETITIONER
MAY SUE AND BE SUED, THIS SUIT CAN BE MAINTAINED.  WE DEAL HERE WITH A
PROBLEM IN THE PENUMBRA OF THE LAW WHERE GENERALLY THE EXECUTIVE AND
THE LEGISLATIVE ARE SUPREME.  WE DO NOT SAY, FOR WE ARE NOT CALLED UPON
TO DO SO, THAT NO JUSTICIABLE ISSUES CAN ARISE OUT OF THE TOLL-MAKING
PROCEDURE FOR THE PANAMA CANAL.  ALL WE HOLD IS THAT THE CONTROVERSY AT
PRESENT IS NOT ONE APPROPRIATE FOR JUDICIAL ACTION. 

U.S.C. SEC. 1009, EXCLUDES FROM THE CATEGORIES OF CASES SUBJECT TO
JUDICIAL REVIEW "AGENCY ACTION" THAT IS "BY LAW COMMITTED TO AGENCY
DISCRETION."  WE THINK THE INITIATION OF A PROCEEDING FOR READJUSTMENT
OF THE TOLLS OF THE PANAMA CANAL IS A MATTER THAT CONGRESS HAS LEFT TO
THE DISCRETION OF THE PANAMA CANAL CO. PETITIONER IS, AS WE HAVE SEEN,
AN AGENT OR SPOKESMAN OF THE PRESIDENT IN THESE MATTERS.  IT IS
"AUTHORIZED" TO PRESCRIBE TOLLS AND TO CHANGE THEM.  CANAL ZONE CODE,
TIT. 2, SEC. 411.  BUT THE EXERCISE OF THAT AUTHORITY IS FAR MORE THAN
THE PERFORMANCE OF A MINISTERIAL ACT.  AS WE HAVE SEEN, THE PRESENT
CONFLICT RAGES OVER QUESTIONS THAT AT HEART INVOLVE PROBLEMS OF
STATUTORY CONSTRUCTION AND COST ACCOUNTING:  WHETHER AN OPERATING
DEFICIT IN THE AUXILIARY OR SUPPORTING ACTIVITIES IS A LEGITIMATE COST
IN MAINTAINING AND OPERATING THE CANAL FOR PURPOSE OF THE TOLL
FORMULA.  THESE ARE MATTERS ON WHICH EXPERTS MAY DISAGREE; THEY INVOLVE
NICE ISSUES OF JUDGMENT AND CHOICE, NEW YORK V. UNITED STATES, 331 U.S.
284, 335, WHICH REQUIRE THE EXERCISE OF INFORMED DISCRETION.  CF.
UNITED STATES EX REL. MCLENNAN V. WILBUR, 283 U.S. 414; INTERSTATE
COMMERCE COMMISSION V. HUMBOLDT S.S. CO., 224 U.S. 474, 484-485.  THE
CASE IS, THEREFORE, QUITE UNLIKE THE SITUATION WHERE A STATUTE CREATES
A DUTY TO ACT AND AN EQUITY COURT IS ASKED TO COMPEL THE AGENCY TO TAKE
THE PRESCRIBED ACTION.  CF. VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300
U.S. 515, 551; KANSAS CITY SO. R. CO. V. INTERSTATE COMMERCE
COMMISSION, 252 U.S. 178.  WE PUT THE MATTER THAT WAY SINCE THE RELIEF
SOUGHT IN THIS ACTION IS TO COMPEL PETITIONER TO FIX NEW TOLLS.  THE
PRINCIPLE AT STAKE IS NO DIFFERENT THAN IF MANDAMUS WERE SOUGHT - A
REMEDY LONG RESTRICTED, MARBURY V. MADISON, 1 CRANCH 137, 166; DECATUR
V. PAULDING, 14 PET. 497, 514-517, IN THE MAIN, TO SITUATIONS WHERE
MINISTERIAL DUTIES OF A NONDISCRETIONARY NATURE ARE INVOLVED.  WHERE
THE MATTER IS PERADVENTURE CLEAR, WHERE THE AGENCY IS CLEARLY DERELICT
IN FAILING TO ACT, WHERE THE INACTION OR ACTION TURNS ON A MISTAKE OF
LAW, THEN JUDICIAL RELIEF IS OFTEN AVAILABLE.  HARMON V. BRUCKER, 355
U.S. 579, IS A RECENT EXAMPLE.  THERE THE SECRETARY OF THE ARMY ISSUED
LESS THAN "HONORABLE" DISCHARGES TO SOLDIERS, BASED ON THEIR ACTIVITIES
PRIOR TO INDUCTION.  THE COURT HELD THAT THE "RECORDS," PRESCRIBED BY
CONGRESS AS THE BASIS FOR HIS ACTION, WERE ONLY RECORDS OF MILITARY
SERVICE.  BUT WHERE THE DUTY TO ACT TURNS ON MATTERS OF DOUBTFUL OR
HIGHLY DEBATABLE INFERENCE FROM LARGE OR LOOSE STATUTORY TERMS, THE
VERY CONSTRUCTION OF THE STATUTE IS A DISTINCT AND PROFOUND EXERCISE OF
DISCRETION.  SEE WORK V. RIVES, 267 U.S. 175, 183; WILBUR V. KADRIE,
281 U.S. 206, 219; UNITED STATES EX REL. CHICAGO GREAT WESTERN R. CO.
V. INTERSTATE COMMERCE COMMISSION, 294 U.S. 50, 62-63.  WE THEN MUST
INFER THAT THE DECISION TO ACT OR NOT TO ACT IS LEFT TO THE EXPERTISE
OF THE AGENCY BURDENED WITH THE RESPONSIBLITY FOR DECISION. 

WE THINK THIS CASE IS IN THAT AREA.  THE PETITIONER, AS AGENT OF THE
PRESIDENT, IS GIVEN QUESTIONS OF JUDGMENT REQUIRING CLOSE ANALYSIS AND
NICE CHOICES.  PETITIONER IS NOT ONLY AGENT FOR THE PRESIDENT BUT A
CREATURE OF CONGRESS.  IT IS ON CLOSE TERMS WITH ITS COMMITTEES,
REPORTING TO THE CONGRESS, AIRING ITS PROBLEMS BEFORE THEM, LOOKING TO
CONGRESS FOR GUIDANCE AND DIRECTION.  IT IS AT LEAST ARGUABLE THAT
CONGRESS TO DATE HAS SIDED WITH PETITIONER AND AGAINST THE COMPTROLLER
GENERAL IN CONSTRUING SECS. 411 AND 412 OF THE CODE.  FOR CONGRESS,
FULLY ADVISED OF THE COMPTROLLER GENERAL'S VIEWS IN HIS REPORT FOR
1954, APPROVED THE BUDGETS FOR THE PANAMA CANAL CO. FOR 1956, 1957, AND
1958, BASED ON PETITIONER'S INTERPRETATION OF THE STATUTE AND ITS
METHODS OF ACCOUNTING AND COST ALLOCATION, 69 STAT. 235-237, 70 STAT.
322-324, 71 STAT. 78.  (FN3)  THAT DOES NOT NECESSARILY MEAN THAT THE
CONSTRUCTION OF THE ACT, PRESSED ON US AND ON CONGRESS BY PETITIONER,
IS THE CORRECT ONE.  IT DOES, HOWEVER, INDICATE THAT THE QUESTION IS SO
WIDE OPEN AND AT LARGE AS TO BE LEFT AT THIS STAGE TO AGENCY
DISCRETION.  (FN4)  THE MATTER SHOULD BE FAR LESS CLOUDY, MUCH MORE
CLEAR FOR COURTS TO INTRUDE.  REVERSED. 

FN1  IN NO. 251 WE GRANTED THE PANAMA CANAL CO.'S PETITION FOR
CERTIORARI AND IN NO. 252 WE GRANTED A CROSS-PETITION FILED BY THE
RESPONDENTS IN NO. 251.  THE PANAMA CANAL CO. WILL HEREINAFTER BE
REFERRED TO AS THE PETITIONER.  IT IS NOT NECESSARY TO DISCUSS THE
PETITIONS SEPARATELY UNDER THE VIEW WE TAKE OF THESE CASES. 

FN2  THE REPLY WAS IN THE FORM OF A LETTER TO THE SPEAKER OF THE
HOUSE FROM J.S. SEYBOLD, PRESIDENT OF PETITIONER, 100 CONG. REC. (DAILY
ED.)  A1995, STATING, INTER ALIA: 

"AN INITIAL STUDY OF THE ADEQUACY OF TOLLS RATES UNDER THE NEW
LEGISLATION HAS NOW BEEN COMPLETED BY THE COMPANY.  THIS STUDY REVEALS
THAT, LARGELY AS A RESULT OF THE VERY HIGH LEVEL OF TRAFFIC USING THE
CANAL IN RECENT YEARS WITHOUT A CORRESPONDING INCREASE IN COSTS, THE
TOLLS RATES THAT HAVE BEEN IN EFFECT SINCE 1938 ARE STILL SUFFICIENT TO
COVER ALL OPERATING COSTS, INCLUDING INTEREST AND DEPRECIATION, AS
REQUIRED BY THE TOLLS STATUTES.  THIS CONCLUSION IS BASED ON THE
ASSUMPTION THAT THE DIRECTOR OF THE BUREAU OF THE BUDGET, WHO UNDER THE
LAW MUST APPROVE THE VALUATION OF THE ASSETS TRANSFERRED TO THE COMPANY
FROM THE AGENCY FORMERLY KNOWN AS THE PANAMA CANAL, WILL CONCUR
GENERALLY IN THE VALUATIONS TENTATIVELY ESTABLISHED BY THE COMPANY UPON
WHICH THE INTEREST AND DEPRECIATION REQUIREMENTS FOR THE MOST PART HAVE
BEEN BASED. 

"IN RECENT MONTHS, CHIEFLY AS THE RESULT OF THE CESSATION OF
HOSTILITIES IN KOREA, THERE HAS BEEN SOME DROP IN TRAFFIC TRANSITING
THE CANAL.  THE COMPANY'S STUDY INDICATES THAT A FURTHER AND MORE
SUBSTANTIAL DECLINE IN THE VOLUME OF CANAL TRAFFIC DURING THE NEXT FEW
YEARS IS TO BE EXPECTED PRIMARILY AS THE RESULT OF CHANGING ECONOMIC
FACTORS AFFECTING WORLD MOVEMENTS OF PETROLEUM AND ITS PRODUCTS, IRON
ORE, AND COAL.  IT IS POSSIBLE THAT BY SOMETIME DURING THE FISCAL YEAR
1955 CANAL TRAFFIC WILL HAVE DECLINED TO A POINT WHERE REVENUES AT
EXISTING RATES WILL NO LONGER BE ADEQUATE TO COVER ALL CHARGES.  SHOULD
THIS CONDITION MATERIALIZE AND SHOULD IT APPEAR REASONABLY CERTAIN THAT
IT WILL CONTINUE FOR AN APPRECIABLE LENGTH OF TIME, THE COMPANY WILL
PROMPTLY TAKE THE STEPS AVAILABLE TO IT TO INCREASE THE RATES OF
TOLLS. 

"IN COMPUTING THE TOLLS REQUIREMENTS FOR PURPOSES OF THIS STUDY THE
COMPANY HAS MADE WHAT IT BELIEVES TO BE AN ADEQUATE ALLOWANCE FOR
DEPRECIATION GIVING DUE CONSIDERATION TO THE FACTORS OF OBSOLESCENCE
AND POTENTIAL INADEQUACY OF THE CAPITAL ASSETS INCLUDABLE IN THE TOLLS
BASE.  ESTIMATES OF THE SERVICE LIVES USED FOR THE PRINCIPAL CLASSES OF
PLANT AND EQUIPMENT HAVE BEEN APPROVED BY INDEPENDENT ENGINEERING
CONSULTANTS.  A DEPRECIATION RATE OF 1 PERCENT PER ANNUM FROM DATE OF
SERVICE HAS BEEN USED FOR THE INVESTMENT IN THE CHANNEL, HARBORS, LOCK
STRUCTURES, DAMS, BREAKWATERS AND SIMILAR LONG-LIVED FACILITIES. 
INCLUDING THIS ACCRUAL THE ANNUAL DEPRECIATION REQUIREMENTS OF THE
COMPANY ARE PRESENTLY APPROXIMATELY $9 MILLION. 

"THE TENTATIVE VALUATIONS USED IN THE STUDY RESULT IN A NET INTEREST
BEARING INVESTMENT OF GOVERNMENT IN THE CANAL ENTERPRISE, AS DEFINED BY
LAW, OF $274 MILLION.  AT THE RATE OF 2.342 PERCENT CURRENTLY
ESTABLISHED FOR REPAYMENT OF INTEREST COSTS AS REQUIRED BY THE
COMPANY'S CHARTER ANNUAL INTEREST PAYMENTS TO THE TREASURY WILL AMOUNT
TO $6.4 MILLION.  IT IS EXPECTED THAT THIS AMOUNT WILL INCREASE
SOMEWHAT IN THE FUTURE YEARS AS THE RESULT OF THE GENERALLY RISING
TREND OF LONG TERM INTEREST RATES. 

"NO DEPRECIATION OR RETURN ON THE CAPITAL VALUE OF INTEREST DURING
THE 1904-14 CONSTRUCTION PERIOD HAS BEEN INCLUDED IN THE STUDY BECAUSE
THE LEGISLATIVE HISTORY OF THE PRESENT TOLLS STATUTES CLEARLY INDICATES
THE INTENT OF THE CONGRESS TO EXCLUDE THIS ITEM ENTIRELY FROM THE TOLLS
BASE.  LIKEWISE NO PROVISION HAS BEEN MADE FOR AMORTIZATION OF LANDS
AND TREATY RIGHTS BECAUSE OF LACK OF STATUTORY AUTHORITY, ALTHOUGH
THESE ASSETS HAVE BEEN INCLUDED IN THE INVESTMENT FOR INTEREST
PURPOSES. 

"USING THE TENTATIVE PLANT VALUATIONS DEVELOPED BY THE COMPANY AND
RECOMPUTING THE OPERATING COSTS AND EXPENSES ACCORDINGLY, THE AGGREGATE
NET INCOME OF THE COMPANY FROM ALL SOURCES FOR THE 4-YEAR PERIOD FROM
THE REORGANIZATION TO JUNE 30, 1955, UNDER PRESENT TOLLS RATES IS
ESTIMATED TO BE APPROXIMATELY $9 MILLION AFTER PROVIDING FOR ALL
CHARGES CURRENTLY AUTHORIZED AND REQUIRED BY LAW.  AS PREVIOUSLY
INDICATED HOWEVER, IT APPEARS THAT A POSSIBLE DECLINE IN VOLUME OF
CANAL TRAFFIC COUPLED WITH RISING INTEREST AND WAGE RATES MAY
NECESSITATE AN INCREASE IN THE TOLLS RATES IN THE NEAR FUTURE.  CURRENT
INDICATIONS ARE THAT SUCH AN INCREASE MAY BE NECESSARY BY JULY 1, 1955,
IN WHICH CASE PUBLIC ANNOUNCEMENT OF THE NEW RATES WOULD BE MADE 6
MONTHS EARLIER OR JANUARY 1, 1955, AS REQUIRED BY LAW." 

FN3  CONGRESS HAS BEEN REPEATEDLY INFORMED OF THE BASIC PROBLEM
INVOLVED HERE, INDEED OF THIS VERY LITIGATION.  SEE, E.G., REPORTS ON
AUDIT OF PANAMA CANAL COMPANY AND THE CANAL ZONE GOVERNMENT, BY THE
COMPTROLLER GENERAL:  FOR THE FISCAL YEAR ENDING JUNE 30, 1954, H.R.
DOC.  NO. 160, 84TH CONG., 1ST SESS. 1-3, 8-9, 12-18; FOR THE FISCAL
YEAR ENDING JUNE 30, 1955, H.R. DOC. NO. 465, 84TH CONG., 2D SESS. 2, 9
10, 17-24; FOR THE FISCAL YEAR ENDING JUNE 30, 1956, H.R. DOC. NO. 210,
85TH CONG., 1ST SESS. 2-5, 15-21.  SEE ALSO, HEARINGS BEFORE THE
SUBCOMMITTEE ON PANAMA CANAL OF THE HOUSE COMMITTEE ON MERCHANT MARINE
AND FISHERIES ON H.R. 6917, 7645, AND 7697, 84TH CONG., 1ST SESS. 159
165; HEARINGS BEFORE THE SUB-COMMITTEE OF THE SENATE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON S. 2167, 84TH CONG., 2D SESS. 23, 68
70, 89-92, 101-102. 

FN4  A BILL WAS INTRODUCED IN THE SENATE IN 1955, S. 2167, 84TH
CONG., 1ST SESS., BY SENATOR MAGNUSON WHICH WOULD GIVE JUDICIAL REVIEW
OF AGENCY ACTION IN FIXING TOLLS.  THAT BILL WAS REPORTED FAVORABLY BY
THE COMMITTEE, S. REP. NO. 2375, 84TH CONG., 2D SESS.  BUT IT NEVER
CAME TO A VOTE.  SEE 102 CONG. REC. 11541, 12791, 13901. 
..END :
























ALASKA INDUSTRIAL BOARD V. CHUGACH ELECTRIC ASSOCIATION, INC. 356 U.S.
320 


NO. 303.  ARGUED APRIL 8, 1958 - DECIDED APRIL 28, 1958 - 245 F.2D 855,
REVERSED AND CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS. 


IN ALASKA, AN EMPLOYEE SUFFERED AN INJURY IN THE COURSE OF HIS
EMPLOYMENT THAT RESULTED IN THE AMPUTATION OF AN ARM, AMPUTATION OF
FOUR TOES ON HIS LEFT FOOT, AND, SOMETIME LATER, AMPUTATION OF HIS
RIGHT LEG BELOW THE KNEE.  THE LEFT FOOT HAD NOT HEALED THREE YEARS
LATER, AND THE EMPLOYEE CONTINUED UNABLE TO WORK OR TO OBTAIN
EMPLOYMENT.  HIS EMPLOYER AND ITS INSURER (RESPONDENTS HERE) PAID HIM
"TEMPORARY DISABILITY" PAYMENTS OF $95 PER WEEK FOR 38 WEEKS.  THEN
THEY CONCLUDED THAT HE HAD BEEN TOTALLY AND PERMANENTLY DISABLED SINCE
THE DATE OF THE LAST AMPUTATION AND WAS ENTITLED UNDER THE ALASKA
WORKMEN'S COMPENSATION ACT TO A LUMP-SUM AWARD OF $8,100 AND NO MORE. 
THEY SENT HIM A CHECK FOR THAT AMOUNT (LESS THE TOTAL ALREADY PAID FOR
"TEMPORARY DISABILITY") AND DISCONTINUED THE "TEMPORARY DISABILITY"
PAYMENTS.  HE THEN APPLIED TO THE ALASKA INDUSTRIAL BOARD, WHICH
AWARDED HIM "TEMPORARY DISABILITY" PAYMENTS FROM THE DATE OF THE LAST
AMPUTATION, ON THE GROUND THAT HIS TEMPORARY DISABILITY "CONTINUES TO
THIS DATE, NO END MEDICAL RESULTS HAVING BEEN REACHED."  RESPONDENTS
SUED IN A FEDERAL DISTRICT COURT TO SET ASIDE THAT AWARD.  HELD:  1. 
UNDER THE ACT, THE FACT THAT THE EMPLOYEE HAD BECOME ENTITLED TO A LUMP
SUM PAYMENT FOR "TOTAL AND PERMANENT DISABILITY" DID NOT PRECLUDE A
LATER AWARD FOR CONTINUING "TEMPORARY DISABILITY."  PP. 323-324. 

2.  FOR "ALL INJURIES CAUSING TEMPORARY DISABILITY," THE ACT PROVIDES
FOR AWARDS BASED ON THE EMPLOYEE'S "AVERAGE DAILY WAGE EARNING
CAPACITY"; THEIR PURPOSE IS TO COMPENSATE THE EMPLOYEE FOR LOST WAGES
DURING THE HEALING PERIOD AND UNTIL HE IS ABLE TO RETURN TO WORK; AND
THERE IS A FACTUAL BASIS FOR SUCH AWARDS AS LONG AS A CONTINUING
ABILITY TO DO SOME WORK EXISTS.  P. 324. 

3.  RESPONDENTS' CONTENTIONS THAT THE EMPLOYEE'S CLAIM WAS NOT TIMELY
FILED AND THAT FOR OTHER REASONS ALSO THE BOARD HAD NO JURISDICTION TO
ENTER ITS LATEST AWARD WERE DECIDED ADVERSELY TO THEM BY THE COURT OF
APPEALS; THEY FILED NO CROSS-PETITION HERE; AND, THEREFORE, THOSE
QUESTIONS ARE NOT OPEN TO RESPONDENTS AT THIS STAGE.  PP. 324-325. 

ALASKA INDUSTRIAL BOARD ET AL. V. CHUGACH ELECTRIC ASSOCIATION, INC., ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN IMPORTANT QUESTION UNDER THE ALASKA WORKMEN'S
COMPENSATION ACT, 2 ALASKA COMP. L. ANN., 1949, SEC. 43-3-1 ET SEQ.
PETITIONER JENKINS, AN EMPLOYEE OF RESPONDENT CHUGACH ELECTRIC
ASSOCIATION, WAS INJURED IN THE COURSE OF HIS EMPLOYMENT.  THREE
SURGICAL OPERATIONS WERE REQUIRED:  AMPUTATION OF HIS LEFT ARM AT THE
SHOULDER; AMPUTATION OF FOUR TOES ON HIS LEFT FOOT; AND LATER,
AMPUTATION OF HIS RIGHT LEG BELOW THE KNEE.  THOUGH THE INJURY OCCURRED
IN SEPTEMBER 1950, THE LEFT FOOT HAD NOT HEALED THREE YEARS LATER.  AS
A RESULT JENKINS WAS FOR A RATHER LONG PERIOD TOTALLY DISABLED. 
RESPONDENTS MADE "TEMPORARY DISABILITY" (FN1) PAYMENTS TO JENKINS FOR
APPROXIMATELY 38 WEEKS ($95.34 A WEEK OR A TOTAL OF $3,645).  AT THAT
POINT THEY DECIDED THAT JENKINS HAD BEEN TOTALLY AND PERMANENTLY
DISABLED (FN2) SINCE THE DATE OF THE LAST AMPUTATION AND WAS THEREFORE
ENTITLED TO A LUMP-SUM AWARD OF $8,100 UNDER THE ACT AND NO MORE. 
(FN3)  THEY THEREUPON SENT HIM A CHECK FOR THAT AMOUNT LESS THE $3,645
ALREADY RECEIVED, VIZ., $4,455. 

JENKINS THEN APPLIED TO THE ALASKA INDUSTRIAL BOARD FOR CONTINUING
BENEFITS FOR TEMPORARY DISABILITY, DESPITE HIS RECEIPT OF THE LUMP-SUM
AWARD FOR TOTAL AND PERMANENT DISABILITY.  THE BOARD ALLOWED HIM
TEMPORARY DISABILITY FROM THE DATE OF THE LAST AMPUTATION.  THIS
TEMPORARY DISABILITY, SAID THE BOARD, "CONTINUES TO THIS DATE, NO END
MEDICAL RESULT HAVING BEEN REACHED." 

RESPONDENTS THEREUPON INSTITUTED THIS ACTION IN THE DISTRICT COURT TO
SET ASIDE THE BOARD'S DECISION.  THAT COURT REVERSED THE BOARD, HOLDING
THAT AN AWARD OF TEMPORARY DISABILITY COULD NOT BE GRANTED UNDER THE
ACT FOR PHYSICAL DISABILITY ARISING FROM THE SAME ACCIDENT IN WHICH A
SCHEDULED, LUMP-SUM AWARD FOR TOTAL PERMANENT DISABILITY HAD BEEN
GRANTED.  122 F. SUPP. 210.  THE COURT OF APPEALS, SITTING EN BANC,
AFFIRMED, BY A DIVIDED VOTE, MODIFYING THE JUDGMENT.  245 F.2D 855.  BY
THAT MODIFICATION THE LUMP-SUM AWARD WAS NOT TO BE REDUCED BY THE
AMOUNT RECEIVED AS TEMPORARY DISABILITY PRIOR TO THAT TIME.  THE CASE
IS HERE ON A PETITION FOR CERTIORARI.  355 U.S. 810. 

THE COURT OF APPEALS REASONED THAT THE LUMP-SUM AWARD FOR TOTAL AND
PERMANENT DISABILITY WAS INTENDED TO REPRESENT A CAPITALIZATION OF
FUTURE EARNINGS.  IT CONCLUDED, THEREFORE, THAT JENKINS HAD BEEN
COMPENSATED BY THE LUMP-SUM AWARD FOR ANY LOSS OF FUTURE EARNINGS AND
THAT HE COULD NOT GET A FURTHER AWARD FOR LOSS OF EARNINGS, THE LUMP
SUM AWARD BEING INTENDED "AS A MAXIMUM AWARD."  ID., AT 862. 

WE READ THE ACT DIFFERENTLY.  THE LUMP-SUM AWARDS FOR TOTAL AND
PERMANENT DISABILITY UNDER THIS COMPENSATION ACT IGNORE WAGE LOSSES. 
WHATEVER THE EMPLOYEE MAY HAVE MADE BEFORE, WHATEVER HIS WAGES MAY BE
AFTER THE INJURY, THE AWARD IS THE SAME.  TO THAT EXTENT IT IS AN
ARBITRARY AMOUNT.  BUT IT IS THE EXPRESSION OF A LEGISLATIVE JUDGMENT
THAT ON AVERAGE THERE HAS BEEN A DEGREE OF IMPAIRMENT, AND WHATEVER MAY
BE THE FACT IN A PARTICULAR CASE, THE LUMP SUM SHOULD BE PAID WITHOUT
MORE.  SEE 2 LARSON, WORKMEN'S COMPENSATION, SEC. 58-10. 

THERE MAY, NEVERTHELESS, BE A CONTINUING ABILITY TO DO SOME WORK; AND
AS LONG AS THAT REMAINING ABILITY EXISTS THERE IS A FACTUAL BASIS FOR
TEMPORARY DISABILITY AWARDS.  THAT SEEMS TO BE THE THEORY OF THE ACT
FOR IT EXTENDS THOSE AWARDS TO "ALL INJURIES CAUSING TEMPORARY
DISABILITY" AND BASES THEM ON THE "AVERAGE DAILY WAGE EARNING CAPACITY"
OF THE INJURED EMPLOYEE, (FN4) AS DETERMINED BY THE BOARD.  THAT AWARD
TAKES CARE OF THE LOST WAGES DURING THE HEALING PERIOD AND UNTIL THE
EMPLOYEE IS ABLE TO RETURN TO WORK THOUGH PERHAPS AT A DIFFERENT JOB
AND AT REDUCED PAY.  IT ALSO COMPENSATES HIM FOR ANY TEMPORARY LOSS OF
EARNING POWER BASED ON THE "WAGE EARNING CAPACITY" (FN5) THAT REMAINS
AFTER THE INJURY.  THE COURT OF APPEALS ASSUMED THERE WAS "NO REMAINING
ABILITY TO WORK" AND THEREFORE "NO FOUNDATION FOR TEMPORARY DISABILITY
BENEFITS."  245 F.2D, AT 862.  BUT THE ACT, WE THINK, IS DRAWN ON A
DIFFERENT HYPOTHESIS.  IT SEEMS TO PROVIDE A SYSTEM OF TEMPORARY
DISABILITIES TO ALL WHO ARE INJURED, WHETHER THEIR INJURIES ARE
DISFIGUREMENT, (FN6) PARTIAL PERMANENT DISABILITY, (FN7) TOTAL AND
PERMANENT DISABILITY, (FN8) OR SO MINOR AS TO FALL IN LESSER
CATEGORIES.  ANY OTHER READING WOULD SEEM TO BE HOSTILE TO THE BENIGN
PURPOSE OF THIS LEGISLATION.  CF. BALTIMORE & PHILA.  S. CO. V. NORTON,
284 U.S. 408, 414. 

RESPONDENTS MAINTAIN THAT JENKINS' CLAIM WAS NOT TIMELY FILED AND
THAT FOR OTHER REASONS ALSO THE BOARD HAD NO JURISDICTION TO ENTER THIS
AWARD.  THESE QUESTIONS WERE DECIDED ADVERSELY TO RESPONDENTS BY THE
COURT OF APPEALS AND NO CROSS-PETITION WAS FILED HERE.  THOSE QUESTIONS
ARE THEREFORE NOT OPEN TO RESPONDENTS AT THIS STAGE.  LETULLE V.
SCOFIELD, 308 U.S. 415, 421-422. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  SECTION 43-3-1 OF THE ACT MAKES THE FOLLOWING PROVISION FOR
"TEMPORARY DISABILITY": 

"FOR ALL INJURIES CAUSING TEMPORARY DISABILITY, THE EMPLOYER SHALL
PAY TO THE EMPLOYEE, DURING THE PERIOD OF SUCH DISABILITY, SIXTY-FIVE
PER CENTUM (65%) OF HIS DAILY AVERAGE WAGES.  AND IN ALL CASES WHERE
THE INJURY DEVELOPS OR PROVES TO BE SUCH AS TO ENTITLE THE EMPLOYEE TO
COMPENSATION UNDER SOME PROVISION IN THIS SCHEDULE, RELATING TO CASES
OTHER THAN TEMPORARY DISABILITY, THE AMOUNT SO PAID OR DUE HIM SHALL BE
IN ADDITION TO THE AMOUNT TO WHICH HE SHALL BE ENTITLED UNDER SUCH
PROVISION IN THIS SCHEDULE. 

"PAYMENT FOR SUCH TEMPORARY DISABILITY SHALL BE MADE AT THE TIME
COMPENSATION IS CUSTOMARILY PAID FOR LABOR PERFORMED OR SERVICES
RENDERED AT THE PLANT OR ESTABLISHMENT OF THE EMPLOYER LIABLE THEREFOR
AND NOT LESS THAN ONCE A MONTH IN ANY EVENT. 

"THE AVERAGE DAILY WAGE EARNING CAPACITY OF AN INJURED EMPLOYEE IN
CASE OF TEMPORARY DISABILITY SHALL BE DETERMINED BY HIS ACTUAL EARNINGS
IF SUCH ACTUAL EARNINGS FAIRLY AND REASONABLY REPRESENT HIS DAILY WAGE
EARNING CAPACITY.  IF SUCH EARNINGS DO NOT FAIRLY AND REASONABLY
REPRESENT HIS DAILY WAGE EARNING CAPACITY, THE INDUSTRIAL BOARD SHALL
FIX SUCH DAILY WAGE EARNING CAPACITY AS SHALL BE REASONABLE AND HAVE A
DUE REGARD FOR THE NATURE OF HIS INJURY, THE DEGREE OF TEMPORARY
IMPAIRMENT, HIS USUAL EMPLOYMENT AND ANY OTHER FACTOR OR CIRCUMSTANCE
IN THE CASE WHICH MAY AFFECT HIS CAPACITY TO EARN WAGES IN HIS
TEMPORARY DISABLED CONDITION." 

FN2  SECTION 43-3-1 OF THE ACT DEFINES TOTAL AND PERMANENT DISABILITY
AS FOLLOWS: 

"THE LOSS OF BOTH HANDS, OR BOTH ARMS, OR BOTH FEET, OR BOTH LEGS, OR
BOTH EYES, OR ANY TWO THEREOF, OR HEARING IN BOTH EARS, SHALL
CONSTITUTE TOTAL AND PERMANENT DISABILITY AND BE COMPENSATED ACCORDING
TO THE PROVISIONS OF THIS ACT WITH REFERENCE TO TOTAL AND PERMANENT
DISABILITY. 

"AMPUTATION BETWEEN THE ELBOW AND THE WRIST SHALL BE CONSIDERED
EQUIVALENT TO THE LOSS OF AN ARM, AND AMPUTATION BETWEEN THE KNEE AND
THE ANKLE SHALL BE CONSIDERED EQUIVALENT TO THE LOSS OF A LEG." 

FN3  SECTION 43-3-1 OF THE ACT PROVIDES: 

"WHERE ANY SUCH EMPLOYEE RECEIVING AN INJURY ARISING OUT OF, AND IN
THE COURSE OF HIS OR HER EMPLOYMENT, AS THE RESULT OF WHICH HE OR SHE
IS TOTALLY AND PERMENENTLY DISABLED, HE OR SHE SHALL BE ENTITLED TO
RECEIVE COMPENSATION AS FOLLOWS: 

"IF SUCH EMPLOYEE WAS AT THE TIME OF HIS INJURY MARRIED HE SHALL BE
ENTITLED TO RECEIVE SEVEN THOUSAND TWO HUNDRED DOLLARS ($7,200.00) WITH
NINE HUNDRED DOLLARS ($900.00) ADDITIONAL FOR EACH CHILD UNDER THE AGE
OF EIGHTEEN (18) YEARS, BUT THE TOTAL TO BE PAID SHALL NOT EXCEED NINE
THOUSAND DOLLARS ($9,000.00)." 

FN4  NOTE 1, SUPRA. 

FN5  NOTE 1, SUPRA. 

FN6  SECTION 43-3-1 PROVIDES: 

"THE INDUSTRIAL BOARD MAY AWARD PROPER AND EQUITABLE COMPENSATION FOR
SERIOUS HEAD, NECK, FACIAL, OR OTHER DISFIGUREMENT, NOT EXCEEDING,
HOWEVER, THE SUM OF TWO THOUSAND DOLLARS ($2,000.00)." 

FN7  SECTION 43-3-1 PROVIDES A SCHEDULE OF PARTIAL PERMANENT
LIABILITY FOR LOSSES OF THUMBS, TOES, FINGERS, ARMS, LEGS, EYES, NOSE,
AND EAR. 

FN8  SEE NOTE 2, SUPRA. 

MR. JUSTICE WHITTAKER, BELIEVING THAT AN INJURED WORKMAN CANNOT BE,
OR BE LEGALLY COMPENSATED AS, BOTH "TOTALLY AND PERMANENTLY DISABLED"
AND "TEMPORARILY TOTALLY DISABLED" AT ONE AND THE SAME TIME UNDER THE
ALASKA WORKMEN'S COMPENSATION ACT, WOULD AFFIRM FOR THE REASONS STATED
BY THE COURT OF APPEALS, 245 F.2D, AT 862. 
..END :





















SINKLER V. MISSOURI PACIFIC RAILROAD CO. 356 U.S. 326 


NO. 133.  ARGUED MARCH 12-13, 1958 - DECIDED APRIL 28, 1958 - 295 S.W.2D
508, REVERSED AND CAUSE REMANDED. 


WHEN A RAILROAD EMPLOYEE'S INJURY IS CAUSED IN WHOLE OR IN PART BY THE
FAULT OF OTHERS PERFORMING, UNDER CONTRACT, OPERATIONAL ACTIVITIES OF
HIS EMPLOYER, SUCH OTHERS ARE "AGENTS" OF THE EMPLOYER WITHIN THE
MEANING OF SEC. 1 OF THE FEDERAL EMPLOYERS' LIABILITY ACT.  PP. 326
332. 

SINKLER V. MISSOURI PACIFIC RAILROAD CO. 

CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, NINTH SUPREME
JUDICIAL DISTRICT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS EMPLOYED BY THE RESPONDENT RAILROAD AS A COOK ON
THE PRIVATE CAR OF RESPONDENT'S GENERAL MANAGER.  HE WAS WORKING ON THE
CAR WHEN A SWITCHING CREW, EMPLOYED BY THE HOUSTON BELT & TERMINAL
RAILWAY COMPANY (HEREINAFTER THE BELT RAILWAY), UNDERTOOK TO SWITCH THE
CAR FROM ONE TRACK TO ANOTHER IN THE UNION STATION AT HOUSTON, TEXAS. 
THROUGH THE FAULT OF THE SWITCHING CREW, THE CAR WAS CAUSED VIOLENTLY
TO COLLIDE WITH ANOTHER RAILROAD CAR IN THE STATION, AND THE PETITIONER
WAS INJURED.  HE RECOVERED A JUDGMENT AGAINST THE RESPONDENT IN AN
ACTION BROUGHT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65,
AS AMENDED, 45 U.S.C. SECS. 51-60, IN THE DISTRICT COURT OF HARRIS
COUNTY, TEXAS.  THE COURT OF CIVIL APPEALS FOR THE NINTH SUPREME
JUDICIAL DISTRICT OF TEXAS REVERSED UPON THE GROUND THAT THE FELA DID
NOT SUBJECT THE RESPONDENT TO LIABILITY FOR INJURIES OF ITS EMPLOYEE
CAUSED BY THE FAULT OF EMPLOYEES OF THE BELT RAILWAY.  295 S.W.2D 508. 
THE SUPREME COURT OF TEXAS DENIED THE PETITIONER'S APPLICATION FOR WRIT
OF ERROR.  WE GRANTED CERTIORARI.  355 U.S. 809. 

NEITHER THE RESPONDENT RAILROAD NOR ITS PREDECESSORS HAVE, SINCE
1905, PERFORMED SWITCHING OPERATIONS IN THE HOUSTON TERMINAL AREA. 
SWITCHING IS A VITAL OPERATIONAL ACTIVITY OF RAILROADING CONSISTING IN
THE BREAKING UP AND ASSEMBLY OF TRAINS AND THE HANDLING OF CARS IN
INTERCHANGE WITH OTHER CARRIERS.  THIS FUNCTION, IN THE HOUSTON AREA,
HAS BEEN CONTRACTED BY THE RESPONDENT AND ITS PREDECESSORS, AND OTHER
CARRIERS, TO THE BELT RAILWAY, A CARRIER SPECIALLY ORGANIZED FOR THAT
PURPOSE. 

THE BELT RAILWAY WAS ORGANIZED BY SEVERAL CARRIERS, INCLUDING THE
PREDECESSORS OF THE RESPONDENT, (FN1) TO OWN AND OPERATE THE UNION
STATION AND TO PERFORM THESE SWITCHING OPERATIONS.  THE ORGANIZING
CARRIERS, OR THEIR SUCCESSORS, OWN THE BELT RAILWAY'S STOCK AND ARE
REPRESENTED ON ITS BOARD OF DIRECTORS IN PROPORTION TO THEIR HOLDINGS. 
THE RESPONDENT OWNS ONE-HALF OF THE STOCK AND DESIGNATES ONE-HALF OF
THE DIRECTORS.  THE BELT RAILWAY RECEIVES SOME INCOME FROM
NONSTOCKHOLDING CARRIERS BUT THE CARRIER STOCKHOLDERS OTHERWISE SHARE
THE NET EXPENSES OF ITS OPERATIONS ACCORDING TO AN AGREED FORMULA.  THE
BELT RAILWAY EMPLOYS ITS OWN SWITCHING CREWS AND OTHER PERSONNEL, AND
OWNS AND OPERATES THE FACILITIES AND ROLLING STOCK USED IN THE
SWITCHING OPERATIONS. 

A RAILROAD'S LIABILITY UNDER SEC. 1 OF THE FELA IS TO COMPENSATE ITS
EMPLOYEES IN DAMAGES FOR INJURIES RESULTING IN WHOLE OR IN PART FROM
THE FAULT OF "ANY OF THE OFFICERS, AGENTS, OR EMPLOYEES" OF SUCH
CARRIER.  45 U.S.C. SEC. 51.  NO QUESTION OF LIABILITY FOR THE FAULT OF
OFFICERS OR EMPLOYEES OF THE RESPONDENT IS HERE RAISED, BUT ONLY
WHETHER THE PETITIONER'S INJURIES WERE DUE TO THE FAULT OF "AGENTS" OF
THE RESPONDENT WITHIN THE MEANING OF THE SECTION. 

THE COURT OF CIVIL APPEALS HELD THAT, SINCE THE BELT RAILWAY WAS AN
INDEPENDENT CONTRACTOR UNDER LAWFUL CONTRACT WITH RESPONDENT TO DO THE
SWITCHING OPERATIONS ON ITS BEHALF, THE PETITIONER'S INJURIES WERE NOT
CAUSED BY RESPONDENT'S "AGENTS."  THE COURT OF CIVIL APPEALS APPLIED
THE GENERAL RULE THAT THE DOCTRINE OF RESPONDEAT SUPERIOR DOES NOT
EXTEND TO INDEPENDENT CONTRACTORS AND CONCLUDED THAT, SINCE THE
EVIDENCE WAS INSUFFICIENT TO SHOW THAT THE RESPONDENT EXERCISED CONTROL
OVER THE DETAILS OF THE BELT RAILWAY'S OPERATIONS, THE FAULT OF ITS
SWITCHING CREW WAS NOT IMPUTABLE TO THE RESPONDENT.  (FN2) 

IT SHOULD FIRST BE NOTED THAT SOME COMMON-LAW JURISDICTIONS
RECOGNIZED AN EXCEPTION TO THE GENERAL RULE OF RESPONDEAT SUPERIOR WHEN
A RAILROAD ENGAGED AN INDEPENDENT CONTRACTOR TO PERFORM OPERATIONAL
ACTIVITIES REQUIRED TO CARRY OUT THE FRANCHISE.  IN THAT CIRCUMSTANCE
THE RAILROAD WAS HELD LIABLE FOR THE FAULT OF THE SERVANTS OF THE
INDEPENDENT CONTRACTOR EVEN THOUGH THE RAILROAD DID NOT CONTROL THE
MANNER OR METHOD BY WHICH THE LATTER DID THE CONTRACTED WORK. 
DIFFERENT THEORIES SUPPORTED THIS LIABILITY, DEPENDING UPON WHETHER THE
PERSON INJURED WAS AN EMPLOYEE OF THE RAILROAD, A PASSENGER, OR A THIRD
PARTY.  IN THE CASE OF THE EMPLOYEE THE THEORY WAS PHRASED AS A
NONDELEGABLE DUTY OF CARE SPRINGING FROM THE CONTRACTUAL RELATIONSHIP
BETWEEN EMPLOYER AND EMPLOYEE, FLOODY V. GREAT NORTHERN R. CO., 102
MINN. 81, 112 N.W. 875, OR AS A DUTY SPRINGING FROM THE FRANCHISE TO
SEE THAT NO WRONG IS DONE THROUGH THE EXERCISE BY OTHER PERSONS OF
CHARTERED POWERS.  NORTH CHICAGO STREET R. CO. V. DUDGEON, 184 ILL.
477, 56 N.E. 796.  HOWEVER PHRASED, SUBSTANTIAL AUTHORITY IN COMMON-LAW
DECISIONS SUPPORTED RECOVERY BY THE RAILROAD EMPLOYEE FROM HIS EMPLOYER
FOR INJURIES CAUSED BY THE FAULT OF EMPLOYEES OF AN INDEPENDENT
CONTRACTOR PERFORMING A PART OF THE EMPLOYER'S RAILROAD OPERATIONS. 
(FN3) 

HOWEVER, IN INTERPRETING THE FELA, WE NEED NOT DEPEND UPON COMMON-LAW
PRINCIPLES OF LIABILITY.  THIS STATUTE, AN AVOWED DEPARTURE FROM THE
RULES OF THE COMMON LAW, CF. ROGERS V. MISSOURI PACIFIC R. CO., 352
U.S. 500, 507-509, WAS A RESPONSE TO THE SPECIAL NEEDS OF RAILROAD
WORKERS WHO ARE DAILY EXPOSED TO THE RISKS INHERENT IN RAILROAD WORK
AND ARE HELPLESS TO PROVIDE ADEQUATELY FOR THEIR OWN SAFETY.  TILLER V.
ATLANTIC COAST LINE R. CO., 318 U.S. 54.  THE COST OF HUMAN INJURY, AN
INESCAPABLE EXPENSE OF RAILROADING, MUST BE BORNE BY SOMEONE, AND THE
FELA SEEKS TO ADJUST THAT EXPENSE EQUITABLY BETWEEN THE WORKER AND THE
CARRIER.  KERNAN V. AMERICAN DREDGING CO., 355 U.S. 426, 431, 438.  THE
SENATE COMMITTEE WHICH REPORTED THE ACT STATED THAT IT WAS DESIGNED TO
ACHIEVE THE BROAD PURPOSE OF PROMOTING: 

"THE WELFARE OF BOTH EMPLOYER AND EMPLOYEE, BY ADJUSTING THE LOSSES
AND INJURIES INSEPARABLE FROM INDUSTRY AND COMMERCE TO THE STRENGTH OF
THOSE WHO IN THE NATURE OF THE CASE OUGHT TO SHARE THE BURDEN."  S.
REP. NO. 460, 60TH CONG., 1ST SESS. 3. 

THUS WHILE THE COMMON LAW HAD GENERALLY REGARDED THE TORTS OF FELLOW
SERVANTS AS SEPARATE AND DISTINCT FROM THE TORTS OF THE EMPLOYER,
HOLDING THE LATTER RESPONSIBLE ONLY FOR HIS OWN TORTS, IT WAS THE
CONCEPTION OF THIS LEGISLATION THAT THE RAILROAD WAS A UNITARY
ENTERPRISE, ITS ECONOMIC RESOURCES OBLIGATED TO BEAR THE BURDEN OF ALL
INJURIES BEFALLING THOSE ENGAGED IN THE ENTERPRISE ARISING OUT OF THE
FAULT OF ANY OTHER MEMBER ENGAGED IN THE COMMON ENDEAVOR.  HENCE A
RAILROAD WORKER MAY RECOVER FROM HIS EMPLOYER FOR AN INJURY CAUSED IN
WHOLE OR IN PART BY A FELLOW WORKER, NOT BECAUSE THE EMPLOYER IS
HIMSELF TO BLAME, BUT BECAUSE JUSTICE DEMANDS THAT ONE WHO GIVES HIS
LABOR TO THE FURTHERANCE OF THE ENTERPRISE SHOULD BE ASSURED THAT ALL
COMBINING THEIR EXERTIONS WITH HIM IN THE COMMON PURSUIT WILL CONDUCT
THEMSELVES IN ALL RESPECTS WITH SUFFICIENT CARE THAT HIS SAFETY WHILE
DOING HIS PART WILL NOT BE ENDANGERED.  IF THIS STANDARD IS NOT MET AND
INJURY RESULTS, THE WORKER IS COMPENSATED IN DAMAGES. 

THIS BROAD PURPOSE CONTROLS OUR DECISION IN DETERMINING WHETHER THE
BELT RAILWAY AND ITS SWITCHING CREW WERE "AGENTS" OF THE RESPONDENT
WITHIN THE MEANING OF THE SECTION.  (FN4)  PLAINLY AN ACCOMMODATING
SCOPE MUST BE GIVEN TO THE WORD "AGENTS" TO GIVE VITALITY TO THE
STANDARD GOVERNING THE LIABILITY OF CARRIERS TO THEIR WORKERS INJURED
ON THE JOB.  (FN5)  SEE KERNAN V. AMERICAN DREDGING CO., SUPRA, AT 431
432, 438-439. 

IN THE PRESENT CASE THE RESPONDENT, RATHER THAN DOING THE NECESSARY
SWITCHING INCIDENT TO ITS BUSINESS IN THE HOUSTON TERMINAL AREA,
ARRANGED THAT THE BELT RAILWAY SHOULD SUPPLY THE CREWS AND EQUIPMENT TO
PERFORM THIS OPERATION ON ITS BEHALF.  BUT THE EVIDENCE CLEARLY
ESTABLISHES THAT THE RESPONDENT'S TRAINS, WHEN UNDER THE CONTROL OF THE
BELT RAILWAY'S SWITCHING CREWS, WERE BEING HANDLED TO FURTHER THE TASK
OF THE RESPONDENT'S ENTERPRISE.  WHILE ENGAGED IN SWITCHING AND
HANDLING RESPONDENT'S CARS AND TRAINS ABOUT THE TERMINAL AREA, THE BELT
RAILWAY EMPLOYEES ON THE JOB WERE, FOR PURPOSES OF THE FELA, AS MUCH A
PART OF THE RESPONDENT'S TOTAL ENTERPRISE AS WAS THE PETITIONER WHILE
ENGAGED IN HIS REGULAR WORK ON THE RESPONDENT'S CAR. 

IT IS MANIFEST THAT THE CORPORATE AUTONOMY OF THE BELT RAILWAY, AND
ITS FREEDOM FROM DETAILED SUPERVISION OF ITS OPERATIONS BY RESPONDENT,
ARE IRRELEVANT INASMUCH AS THE SWITCHING CREW OF THE BELT RAILWAY
COMPANY AT THE MOMENT OF THE COLLISION IN THE STATION WAS ENGAGED IN
FURTHERING THE OPERATIONAL ACTIVITIES OF RESPONDENT.  WE THEREFORE HOLD
THAT WHEN A RAILROAD EMPLOYEE'S INJURY IS CAUSED IN WHOLE OR IN PART BY
THE FAULT OF OTHERS PERFORMING, UNDER CONTRACT, OPERATIONAL ACTIVITIES
OF HIS EMPLOYER, SUCH OTHERS ARE "AGENTS" OF THE EMPLOYER WITHIN THE
MEANING OF SEC. 1 OF FELA. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  THE STOCK OF THE BELT RAILWAY WAS ORIGINALLY SUBSCRIBED TO BY
FOUR RAILROAD CORPORATIONS.  THE TWO WHICH WERE PREDECESSORS IN
INTEREST TO THE PRESENT RESPONDENT WERE THE BEAUMONT, SOUR LAKE &
WESTERN AND THE ST. LOUIS, BROWNSVILLE & MEXICO.  THIS SUIT WAS BROUGHT
ORIGINALLY AGAINST THOMPSON, TRUSTEE IN BANKRUPTCY FOR THESE TWO
ROADS.  UPON THEIR REORGANIZATION AS PART OF THE MISSOURI PACIFIC, THE
RESPONDENT WAS SUBSTITUTED AS PARTY DEFENDANT. 

FN2  THE JURY, IN RESPONSE TO SPECIAL ISSUES SUBMITTED TO IT BY THE
TRIAL JUDGE, HAD EXPRESSLY FOUND THAT THE BELT RAILWAY "SUBMITS ITSELF
TO THE RIGHT OF CONTROL AND SUPERVISION OF THE OTHER (RESPONDENT) WITH
RESPECT TO ALL THE DETAILS OF SUCH WORK." 

FN3  WABASH, ST. L.&P.R. CO. V. PEYTON, 106 ILL. 534, 46 AM. REP.
705; BURNES V. KANSAS CITY, FT. S.&M.R. CO., 129 MO. 41, 31 S.W. 347;
STORY V. CONCORD & M.R. CO., 70 N.H. 364, 48 A. 288; GULF, C.&S.F.R.
CO. V. SHELTON, 96 TEX. 301, 72 S.W. 165; GULF, C.&S.F.R. CO. V.
SHEARER, 1 TEX. CIV. APP. 343, 21 S.W. 133; FORT WORTH & D.C.R. CO. V.
SMITH, 39 TEX.  CIV. APP. 92, 87 S.W. 371; BUT SEE BRADY V. CHICAGO &
G.W.R. CO., 114 F. 100. 

FN4  IT MAY BE SIGNIFICANT THAT THERE WAS OMITTED FROM THE SECTION AS
ENACTED THE LANGUAGE IN THE ORIGINAL BILLS WHICH WOULD HAVE IMPOSED
LIABILITY UPON A CARRIER FOR THE FAULT "OF ANY OTHER PERSON SUBJECT TO
ITS CONTROL."  HEARINGS BEFORE THE SENATE COMMITTEE ON EDUCATION AND
LABOR ON S. 5307, 60TH CONG., 1ST SESS. 3, 34; HEARINGS BEFORE THE
HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 17036, 60TH CONG., 1ST SESS.
3, 34. 

FN5  RESPONDENT'S RELIANCE ON ROBINSON V. BALTIMORE & O.R. CO., 237
U.S. 84, AND LINSTEAD V. CHESAPEAKE & O.R. CO., 276 U.S. 28, IS
MISPLACED.  THE ISSUE IN EACH OF THOSE CASES WAS WHETHER THE PLAINTIFF
WAS AN EMPLOYEE OF THE DEFENDANT RAILROAD. 

MR. JUSTICE CLARK CONCURS IN THE RESULT, BELIEVING THAT FOR PURPOSES
OF THE FELA, THE BELT RAILWAY WAS PERFORMING A NONDELEGABLE DUTY OF
RESPONDENT'S AT THE TIME OF PETITIONER'S INJURY. 

MR. JUSTICE WHITTAKER, BELIEVING THAT PETITIONER WAS NOT ONLY
RESPONDENT'S EMPLOYEE BUT, IN THE CIRCUMSTANCES OF THIS CASE, WAS ALSO
ITS PASSENGER AT THE TIME AND PLACE IN QUESTION AND THAT RESPONDENT'S
FRANCHISED CARRIER RESPONSIBILITIES TO HIM AS ITS PASSENGER WERE
NONDELEGABLE, CONCURS IN THE RESULT OF THIS OPINION. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

THIS CASE IS A FURTHER STEP IN A COURSE OF DECISIONS THROUGH WHICH
THE COURT HAS BEEN RAPIDLY CONVERTING THE FEDERAL EMPLOYERS' LIABILITY
ACT, 35 STAT. 65, AS AMENDED, 45 U.S.C.  SECS. 51-60 (AND THE JONES
ACT, WHICH INCORPORATES THE FELA, 41 STAT. 1007, 46 U.S.C. SEC. 688),
INTO WHAT AMOUNTS TO A WORKMEN'S COMPENSATION STATUTE. 

THIS PROCESS RECENTLY GAINED MARKED MOMENTUM WITH ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, 559, DECIDED AT THE 1956 TERM, WHERE
THE COURT IN EFFECT ESTABLISHED A "SCINTILLA" RULE IN THESE CASES FOR
JUDGING THE SUFFICIENCY OF THE EVIDENCE ON THE ISSUE OF "CAUSATION." 
IN SUBSEQUENT DECISIONS THAT RULE HAS BEEN EXTENDED, SUB SILENTIO, TO
COVER ALSO THE ISSUE OF "NEGLIGENCE."  (FN1)  MORE RECENTLY IN KERNAN
V. AMERICAN DREDGING CO., 355 U.S. 426, DECIDED A FEW MONTHS AGO, THE
COURT STILL FURTHER EXPANDED THESE ENACTMENTS TO EMBRACE A CONCEPT OF
ABSOLUTE LIABILITY FOR VIOLATION OF ANY STATUTORY DUTY OCCASIONING
INJURY TO ONE ENTITLED TO SUE UNDER THEM.  AND TODAY WE ARE TOLD THAT "
...  WHEN A RAILROAD EMPLOYEE'S INJURY IS CAUSED IN WHOLE OR IN PART
BY THE FAULT OF OTHERS PERFORMING, UNDER CONTRACT, OPERATIONAL
ACTIVITIES OF HIS EMPLOYER, SUCH OTHERS ARE 'AGENTS' OF THE EMPLOYER
WITHIN THE MEANING OF SEC. 1 OF FELA."  THIS IS HELD TO BE SO EVEN
THOUGH IT HAS LONG BEEN CUSTOMARY IN RAILROADING FOR CARRIERS TO
DELEGATE TO OTHERS ACTIVITIES SUCH AS THE SWITCHING OPERATION HERE, SEE
FORT WORTH BELT R. CO. V. UNITED STATES, 22 F.2D 795, AND
NOTWITHSTANDING THAT UNDER TRADITIONAL COMMON-LAW CONCEPTS THOSE
PERFORMING SUCH SPECIALIZED ACTIVITIES WOULD BE REGARDED AS INDEPENDENT
CONTRACTORS.  (FN2)  SEE, E.G., BRADY V. CHICAGO & G.W.R. CO., 114 F.
100, 108-112; MOLETON V. UNION PACIFIC R. CO., 118 UTAH 107, 114-115,
219 P.2D 1080, 1084.    IN LIGHT OF THE FELA AND ITS LEGISLATIVE
HISTORY IT IS DIFFICULT TO REGARD ANY OF THESE DEVELOPMENTS AS OTHER
THAN THE PRODUCTS OF FREEWHEELING.  THE FELA "  ...  IS FOUNDED ON
COMMON-LAW CONCEPTS OF NEGLIGENCE AND INJURY, SUBJECT TO SUCH
QUALIFICATIONS AS CONGRESS HAS IMPORTED INTO THOSE TERMS."  URIE V.
THOMPSON, 337 U.S. 163, 182.  SEE ALSO DISSENTING OPINIONS IN ROGERS V.
MISSOURI PACIFIC R. CO., SUPRA, AT 524, 538-539, 559, 563-564; AND IN
KERNAN V. AMERICAN DREDGING CO., SUPRA, AT 441, 451-452.  THE ONLY SUCH
QUALIFICATIONS WHICH CONGRESS HAS YET SEEN FIT TO ENACT ARE THOSE
EFFECTED BY SECS. 3 AND 4 OF THE ACT, MODIFYING OR ABOLISHING THE
COMMON-LAW DEFENSES OF CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 
35 STAT.  66, 45 U.S.C. SEC. 53; 35 STAT. 66, AS AMENDED, 45 U.S.C.
SEC. 54.  MORE PARTICULARLY, WHEN A WELL-KNOWN LEGAL TERM LIKE "AGENTS"
IS USED IN LEGISLATION, IT SHOULD BE TAKEN AS CARRYING ITS ORDINARY
MEANING UNLESS THE STATUTE INDICATES THE CONTRARY.  CF. HULL V.
PHILADELPHIA & R.R. CO., 252 U.S. 475, 479.  THE PRINCIPLE OF
"ACCOMMODATING SCOPE" TO WHICH THE COURT RESORTS FOR JUSTIFICATION OF
THE EXPANSIVE MEANING NOW GIVEN THAT TERM IS, AS APPLIED HERE, A NEW
RULE OF STATUTORY CONSTRUCTION OF WHICH I HAVE NOT BEEN AWARE UNTIL
TODAY.  I MUST DISSENT. 

FN1  WEBB V. ILLINOIS CENTRAL R. CO., 352 U.S. 512; FERGUSON V. MOORE
MCCORMACK LINES, INC., 352 U.S. 521; SHAW V. ATLANTIC COAST LINE R.
CO., 353 U.S. 920; FUTRELLE V. ATLANTIC COAST LINE R. CO., 353 U.S.
920; DEEN V. GULF, COLORADO & S.F.R. CO., 353 U.S. 925; THOMSON V.
TEXAS & P.R. CO., 353 U.S. 926; RINGHISER V. CHESAPEAKE & O.R. CO., 354
U.S. 901; MCBRIDE V. TOLEDO TERMINAL R. CO., 354 U.S. 517; GIBSON V.
THOMPSON, 355 U.S. 18; STINSON V. ATLANTIC COAST LINE R. CO., 355 U.S.
62; HONEYCUTT V. WABASH R. CO., 355 U.S. 424; FERGUSON V. ST. LOUIS-SAN
FRANCISCO R. CO., 356 U.S. 41; BUTLER V. WHITEMAN, 356 U.S. 271. 

FN2  ALTHOUGH THE COURT IN FOOTNOTE 2 OF ITS OPINION REFERS TO THE
JURY'S SPECIAL FINDING THAT BELT RAILWAY WAS UNDER THE "CONTROL AND
SUPERVISION" OF RESPONDENT, I DO NOT UNDERSTAND THAT ANY RELIANCE IS
PLACED UPON THAT FINDING HERE.  IT SEEMS ENOUGH TO SAY THAT THIS
FINDING WAS WITHOUT SUPPORT IN THE EVIDENCE, AS THE STATE APPELLATE
COURT HELD. 
..END :



















JUNG V. K.&D. MINING CO., INC. 356 U.S. 335 


NO. 619.  DECIDED APRIL 28, 1958 - 246 F.2D 281, REVERSED AND CAUSE
REMANDED. 


ON MAY 10, 1955, THE FEDERAL DISTRICT COURT DISMISSED PETITIONERS'
FIRST AMENDED COMPLAINT IN THIS CASE AND GRANTED PETITIONERS 20 DAYS
FROM THAT DATE TO FILE AN AMENDED COMPLAINT.  ON MAY 27, 1955, THE
COURT OVERRULED PETITIONERS' MOTION TO VACATE THAT ORDER BUT GRANTED
PETITIONERS LEAVE TO FILE AN AMENDED COMPLAINT WITHIN 20 DAYS FROM THAT
DATE.  PETITIONERS DID NOT FILE AN AMENDED COMPLAINT; BUT, ON MARCH 25,
1957, FILED A PAPER ELECTING TO STAND ON THEIR FIRST AMENDED
COMPLAINT.  ON THE SAME DAY, THE COURT DISMISSED THE CAUSE OF ACTION. 
ON APRIL 16, 1957, PETITIONERS FILED NOTICE OF APPEAL "FROM FINAL
JUDGMENT ENTERED IN THIS ACTION ON MARCH 25, 1957."  THE COURT OF
APPEALS HELD THAT THE DISTRICT COURT'S ORDER OF MAY 27, 1955, BECAME
ITS FINAL JUDGMENT WHEN PETITIONERS FAILED TO FILE AN AMENDED COMPLAINT
WITHIN THE 20 DAYS ALLOWED THEREBY, AND IT DISMISSED THE APPEAL AS
UNTIMELY.  HELD:  THE FINAL JUDGMENT IN THE CASE WAS THE DISTRICT
COURT'S ORDER OF MARCH 25, 1957, DISMISSING THE CAUSE OF ACTION, AND
THE APPEAL WAS TIMELY UNDER RULE 73(A) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  PP. 335-338. 

JUNG ET AL. V. K.&D. MINING CO., INC., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

PETITIONERS SEEK OUR WRIT OF CERTIORARI TO REVIEW THE JUDGMENT OF THE
COURT OF APPEALS DISMISSING THEIR APPEAL AS UNTIMELY. 

THE FACTS ARE UNDISPUTED.  PETITIONERS BROUGHT THIS ACTION TO RECOVER
THE PURCHASE PRICE OF SECURITIES ALLEGED TO HAVE BEEN WORTHLESS AND
FRAUDULENTLY SOLD TO THEM BY RESPONDENTS IN VIOLATION OF SEC. 12 OF THE
SECURITIES ACT OF 1933, AS AMENDED (48 STAT. 84, 15 U.S.C.  SEC. 77L),
AND OF SEC. 10(B) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
(48 STAT.  891, 15 U.S.C. SEC. 78JB)).  RESPONDENTS MOVED TO DISMISS
PETITIONERS' FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED.  ON MAY 10, 1955, THE DISTRICT COURT
SUSTAINED THE MOTION, DISMISSED THE COMPLAINT, AND GRANTED PETITIONERS
"TWENTY DAYS FROM THIS DATE WITHIN WHICH TO FILE AN AMENDED
COMPLAINT."  ON MAY 27, 1955, PETITIONERS MOVED TO VACATE THE ORDER OF
MAY 10 DISMISSING THE FIRST AMENDED COMPLAINT OR, IN THE ALTERNATIVE,
TO EXTEND THE TIME TO FILE AN AMENDED COMPLAINT.  ON THAT DATE (MAY 27,
1955) THE COURT OVERRULED PETITIONERS' MOTION TO VACATE THE ORDER OF
MAY 10, BUT GRANTED LEAVE TO PETITIONERS TO FILE AN AMENDED COMPLAINT
WITHIN 20 DAYS FROM MAY 27, 1955.  PETITIONERS DID NOT FILE AN AMENDED
COMPLAINT.  ON MARCH 25, 1957, PETITIONERS FILED AN INSTRUMENT IN THE
CASE BY WHICH THEY ELECTED TO STAND ON THEIR FIRST AMENDED COMPLAINT. 
ON THAT DAY (MARCH 25, 1957) THE COURT ORDERED THAT "THIS CAUSE OF
ACTION BE AND IT HEREBY IS DISMISSED WITHOUT COSTS."  ON APRIL 16,
1957, PETITIONERS FILED NOTICE OF APPEAL "FROM FINAL JUDGMENT ENTERED
IN THIS ACTION ON MARCH 25, 1957."  RESPONDENT MOVED IN THE COURT OF
APPEALS TO DISMISS THE APPEAL AS UNTIMELY.  THE COURT OF APPEALS,
HOLDING THAT THE ORDER OF MAY 27, 1955, BECAME THE DISTRICT COURT'S
FINAL JUDGMENT IN THE CASE WHEN PETITIONERS FAILED TO FILE AN AMENDED
COMPLAINT WITHIN THE 20 DAYS THEREBY ALLOWED FOR THAT PURPOSE,
SUSTAINED THE MOTION AND DISMISSED THE APPEAL OF APRIL 16, 1957, AS NOT
TAKEN WITHIN 30 DAYS FROM THE ENTRY OF THE JUDGMENT.  246 F.2D 281. 

WE THINK THAT THE DISTRICT COURT'S ORDER OF MAY 27, 1955, DENYING
PETITIONERS' MOTION TO VACATE THE ORDER OF MAY 10, 1955, BUT GRANTING
FURTHER LEAVE TO PETITIONERS TO AMEND THEIR COMPLAINT, DID NOT
CONSTITUTE THE FINAL JUDGMENT IN THE CASE.  IT DID NOT DIRECT "THAT ALL
RELIEF BE DENIED"  (RULE 58 OF FEDERAL RULES OF CIVIL PROCEDURE) BUT
LEFT THE SUIT PENDING FOR FURTHER PROCEEDINGS "EITHER BY AMENDMENT OF
THE COMPLAINT OR ENTRY OF A FINAL JUDGMENT."  MISSOURI & KANSAS
INTERURBAN R. CO. V. CITY OF OLATHE, 222 U.S. 185, 186.  THE SITUATION
DID "NOT DIFFER FROM AN ORDER SUSTAINING A DEMURRER WITH LEAVE TO
AMEND; ANOTHER ORDER OF ABSOLUTE DISMISSAL AFTER EXPIRATION OF THE TIME
ALLOWED FOR AMENDMENT IS REQUIRED TO MAKE A FINAL DISPOSITION OF THE
CAUSE."  CORY BROS. & CO., LTD., V. UNITED STATES, 47 F.2D 607.  CF.
UNITED STATES V. F.&M. SCHAEFER BREWING CO., 356 U.S. 227; CLARK V.
KANSAS CITY, 172 U.S. 334; CRUTCHER V. JOYCE, 134 F.2D 809; WESTERN
ELECTRIC CO. V. PACENT REPRODUCER CORP., 37 F.2D 14, AND RIVERSIDE OIL
& RFG.  CO. V. DUDLEY, 33 F.2D 749. 

ALTHOUGH TO BE SURE NEARLY TWO YEARS ELAPSED BETWEEN THE TIME
PETITIONERS WERE GIVEN LEAVE TO FILE AN AMENDED COMPLAINT AND THEIR
MOTION OF MARCH 25, 1957, THE DEFENDANTS ALSO DID NOT, AS THEY SO
EASILY COULD HAVE DONE, NOR DID THE DISTRICT COURT EXERCISING POWER SUA
SPONTE OVER ITS OWN CALENDAR, TAKE ANY STEP TO PUT A DEFINITIVE END TO
THE CASE AND THEREBY FIX AN UNEQUIVOCAL TERMINAL DATE FOR
APPEALABILITY.  THE UNDESIRABILITY OF USELESS DELAYS IN LITIGATION IS
MORE THAN OFFSET BY THE HAZARDS OF CONFUSION OR MISUNDERSTANDING AS TO
THE TIME FOR APPEAL. 

IT WAS THE DISTRICT COURT'S ORDER OF MARCH 25, 1957, DISMISSING "THIS
CAUSE OF ACTION," THAT CONSTITUTED THE FINAL JUDGMENT IN THE CASE.  IT
DIRECTED "THAT ALL RELIEF BE DENIED" AND REQUIRED "THE CLERK TO ENTER
JUDGMENT" ACCORDINGLY (RULE 58).  THE APPEAL OF APRIL 16, 1957, WAS
TAKEN WITHIN 30 DAYS FROM THE DATE OF ENTRY OF THE JUDGMENT AND HENCE
WAS TIMELY UNDER 73(A) OF FEDERAL RULES OF CIVIL PROCEDURE. 

THE WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED AND THE CAUSE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  SO ORDERED. 
..END :


















NEW YORKER MAGAZINE, INC. V. GEROSA, CITY OF NEW YORK 356 U.S. 339 


NO. 816.  DECIDED APRIL 28, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  3 N.Y.2D 362, 144
N.E.2D 367. 


NEW YORKER MAGAZINE, INC., V. GEROSA, COMPTROLLER OF THE CITY OF NEW
YORK, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION.  WESTERN LIVE STOCK V. BUREAU OF
REVENUE, 303 U.S. 250. 
..END :














VAN NEWKIRK V. MCNEILL 356 U.S. 339 


NO. 497, MISC.  DECIDED APRIL 28, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


VAN NEWKIRK V. MCNEILL, SUPERINTENDENT, MATTEAWAN STATE HOSPITAL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PHILYAW V. ARKANSAS 356 U.S. 340 


NO. 821.  DECIDED APRIL 28, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: 228 ARK. 71, 305 S.W.2D 851. 


PHILYAW V. ARKANSAS. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















CAINE V. CALIFORNIA 356 U.S. 340 


NO. 826.  DECIDED APRIL 28, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 


CAINE V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, SAN MATEO COUNTY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















POGOR V. NEW YORK 356 U.S. 341 


NO. 874.  DECIDED APRIL 28, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  3 N.Y.2D 836, 941, 144
N.E.2D 722, 145 N.E.2D 387. 


POGOR ET AL. V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION 795 V. NEWELL, DBA EL DORADO
DAIRY 356 U.S. 341 


NO. 847.  DECIDED APRIL 28, 1958 - CERTIORARI GRANTED AND JUDGMENT
REVERSED - 181 KAN. 898, 182 KAN. 205, 317 P.2D 817, 319 P.2D 171,
REVERSED. 


CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION 795 ET AL. V. NEWELL, DOING
BUSINESS AS EL DORADO DAIRY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE SUPREME COURT OF KANSAS IS REVERSED.  THORNHILL V. ALABAMA, 310
U.S. 88, 98, THIRD. 
..END :













COMMISSIONER OF INTERNAL REVENUE V. P.G. LAKE, INC. 356 U.S. 260 


NO. 108.  ARGUED MARCH 11, 1958 - DECIDED APRIL 14, 1958 - 241 F.2D 65,
69, 71, 78, 84, REVERSED. 


1.  IN EACH OF THE FIVE CASES HERE CONSIDERED TOGETHER, THE TAXPAYER
RECEIVED PRESENT CONSIDERATION FOR ASSIGNMENT OF A SO-CALLED OIL
PAYMENT RIGHT (OR SULPHUR PAYMENT RIGHT) CARVED OUT BY THE TAXPAYER
FROM A LARGER MINERAL INTEREST PRODUCING INCOME TAXABLE AS ORDINARY
INCOME, SUBJECT TO A DEPLETION DEDUCTION.  HELD:  THE CONSIDERATION
RECEIVED FOR THE ASSIGNMENT WAS TAXABLE AS ORDINARY INCOME, SUBJECT TO
A DEPLETION DEDUCTION, AND NOT AS A LONG-TERM CAPITAL GAIN UNDER SEC.
117 OF THE INTERNAL REVENUE CODE OF 1939.  PP. 261-267. 

(A)  THE PRESENT CONSIDERATION RECEIVED BY THE TAXPAYER WAS PAID FOR
THE RIGHT TO RECEIVE FUTURE INCOME, NOT FOR AN INCREASE IN THE VALUE OF
THE INCOME-PRODUCING PROPERTY.  PP.  264-267. 

(B)  AN EARLIER ADMINISTRATIVE PRACTICE (REVERSED IN 1946) CONTRARY
TO THIS HOLDING WILL NOT BE PRESUMED TO HAVE BEEN KNOWN TO CONGRESS AND
INCORPORATED INTO THE LAW BY RE-ENACTMENT, BECAUSE IT WAS NOT REFLECTED
IN ANY PUBLISHED RULING OR REGULATION.  P. 265, N. 5. 

(C)  MOREOVER, PRIOR ADMINISTRATIVE PRACTICE IS ALWAYS SUBJECT TO
CHANGE THROUGH EXERCISE BY THE ADMINISTRATIVE AGENCY OF ITS CONTINUING
RULE-MAKING POWER.  P. 265, N. 5. 

2.  IN THE FLEMING CASE, THE TAXPAYERS EXCHANGED OIL PAYMENT RIGHTS
FOR FEE SIMPLE INTERESTS IN REAL ESTATE.  HELD:  THIS DID NOT
CONSTITUTE A TAX-FREE EXCHANGE OF PROPERTY OF LIKE KIND WITHIN THE
MEANING OF SEC. 112(B)(1) OF THE INTERNAL REVENUE CODE OF 1939.  PP.
267-268. 

COMMISSIONER OF INTERNAL REVENUE ET AL. V. P.G. LAKE, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WE HAVE HERE, CONSOLIDATED FOR ARGUMENT, FIVE CASES INVOLVING AN
IDENTICAL QUESTION OF LAW.  FOUR ARE FROM THE TAX COURT WHOSE RULINGS
MAY BE FOUND IN 24 T.C. 1016 (THE LAKE CASE); 24 T.C. 818 (THE FLEMING
CASE); 24 T.C. 1025 (THE WEED CASE).  (ITS FINDINGS AND OPINION IN THE
WRATHER CASE ARE NOT OFFICIALLY REPORTED.)  THOSE FOUR CASES INVOLVED
INCOME TAX DEFICIENCIES.  THE FIFTH, THE O'CONNOR CASE, IS A SUIT FOR A
REFUND ORIGINATING IN THE DISTRICT COURT.  143 F. SUPP. 240.  ALL FIVE
ARE FROM THE SAME COURT OF APPEALS, 241 F.2D 71, 65, 78, 84, 69.  THE
CASES ARE HERE ON WRITS OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
PUBLIC IMPORTANCE OF THE QUESTION PRESENTED.  353 U.S. 982. 

THE FACTS OF THE LAKE CASE ARE CLOSELY SIMILAR TO THOSE IN THE
WRATHER AND O'CONNOR CASES.  LAKE IS A CORPORATION ENGAGED IN THE
BUSINESS OF PRODUCING OIL AND GAS.  IT HAS A SEVEN-EIGHTS WORKING
INTEREST (FN1) IN TWO COMMERCIAL OIL AND GAS LEASES.  IN 1950 IT WAS
INDEBTED TO ITS PRESIDENT IN THE SUM OF $600,000 AND IN CONSIDERATION
OF HIS CONCELLATION OF THE DEBT ASSIGNED HIM AN OIL PAYMENT RIGHT IN
THE AMOUNT OF $600,000, PLUS AN AMOUNT EQUAL TO INTEREST AT 3 PERCENT A
YEAR ON THE UNPAID BALANCE REMAINING FROM MONTH TO MONTH, PAYABLE OUT
OF 25 PERCENT OF THE OIL ATTRIBUTABLE TO THE TAXPAYER'S WORKING
INTEREST IN THE TWO LEASES.  AT THE TIME OF THE ASSIGNMENT IT COULD
HAVE BEEN ESTIMATED WITH REASONABLE ACCURACY THAT THE ASSIGNED OIL
PAYMENT RIGHT WOULD PAY OUT IN THREE OR MORE YEARS.  IT DID IN FACT PAY
OUT IN A LITTLE OVER THREE YEARS. 

IN ITS 1950 TAX RETURN LAKE REPORTED THE OIL PAYMENT ASSIGNMENT AS A
SALE OF PROPERTY PRODUCING A PROFIT OF $600,000 AND TAXABLE AS A LONG
TERM CAPITAL GAIN UNDER SEC. 117 OF THE INTERNAL REVENUE CODE OF 1939. 
THE COMMISSIONER DETERMINED A DEFICIENCY, RULING THAT THE PURCHASE
PRICE (LESS DEDUCTIONS NOT MATERIAL HERE) WAS TAXABLE AS ORDINARY
INCOME, SUBJECT TO DEPLETION.  THE WRATHER CASE HAS SOME VARIATIONS IN
ITS FACTS.  IN THE O'CONNOR CASE THE ASSIGNORS OF THE OIL PAYMENTS
OWNED ROYALTY INTERESTS (FN2) RATHER THAN WORKING INTERESTS.  BUT THESE
DIFFERENCES ARE NOT MATERIAL TO THE QUESTION WE HAVE FOR DECISION. 

THE WEED CASE IS DIFFERENT ONLY BECAUSE IT INVOLVES SULPHUR RIGHTS,
RATHER THAN OIL RIGHTS.  THE TAXPAYER WAS THE OWNER OF A POOLED
OVERRIDING ROYALTY IN A DEPOSIT KNOWN AS BOLING DOME.  (FN3)  THE
ROYALTY INTEREST ENTITLED THE TAXPAYER TO RECEIVE $0.00966133 PER LONG
TON OF SULPHUR PRODUCED FROM BOLING DOME, IRRESPECTIVE OF THE MARKET
PRICE.  ROYALTY PAYMENTS WERE MADE EACH MONTH, BASED ON THE PREVIOUS
MONTH'S PRODUCTION. 

IN 1947, THE TAXPAYER, IN ORDER TO OBTAIN A SURE SOURCE OF FUNDS TO
PAY HIS INDIVIDUAL INCOME TAXES, AGREED WITH ONE MUNRO, HIS TAX
ADVISOR, ON A SULPHUR PAYMENT ASSIGNMENT.  THE TAXPAYER ASSIGNED TO
MUNRO A SULPHUR PAYMENT TOTALING $50,000 AND CONSISTING OF 86.254514
PERCENT OF HIS POOLED ROYALTY INTEREST, WHICH REPRESENTED THE ROYALTY
INTEREST ON 6,000,000 LONG TONS OF THE ESTIMATED REMAINING 21,000,000
LONG TONS STILL IN PLACE.  THE PURCHASE PRICE WAS PAID IN THREE
INSTALLMENTS OVER A THREE-YEAR PERIOD.  MOST OF THE PURCHASE PRICE WAS
BORROWED BY MUNRO FROM A BANK WITH THE SULPHUR PAYMENT ASSIGNMENT AS
SECURITY.  THE ASSIGNED SULPHUR PAYMENT RIGHT PAID OUT WITHIN 28
MONTHS.  THE AMOUNTS RECEIVED BY THE TAXPAYER IN 1948 AND 1949 WERE
RETURNED BY HIM AS CAPITAL GAINS.  THE COMMISSIONER DETERMINED THAT
THESE AMOUNTS WERE TAXABLE AS ORDINARY INCOME, SUBJECT TO DEPLETION. 

THE FLEMING CASE IS A BIT MORE COMPLICATED AND PRESENTS AN ADDITIONAL
QUESTION NOT IN THE OTHER CASES.  HERE OIL PAYMENT ASSIGNMENTS WERE
MADE, NOT FOR CASH BUT FOR REAL ESTATE.  TWO TRANSACTIONS ARE
INVOLVED.  FLEMING AND OTHERS WITH WHOM HE WAS ASSOCIATED MADE OIL
PAYMENT ASSIGNMENTS, THE RIGHTS AND INTERESTS INVOLVED BEING HELD BY
THEM FOR PRODUCTIVE USE IN THEIR RESPECTIVE BUSINESSES OF PRODUCING
OIL.  EACH OIL PAYMENT WAS ASSIGNED FOR AN INTEREST IN A RANCH.  EACH
WAS IN AN AMOUNT WHICH REPRESENTED THE UNCONTESTED FAIR VALUE OF THE
UNDIVIDED INTEREST IN THE RANCH RECEIVED BY THE ASSIGNOR, PLUS AN
AMOUNT EQUAL TO THE INTEREST PER ANNUM ON THE BALANCE REMAINING UNPAID
FROM TIME TO TIME.  THE OTHER TRANSACTION CONSISTED OF AN OIL PAYMENT
ASSIGNMENT BY AN OWNER OF OIL AND GAS LEASES, HELD FOR PRODUCTIVE USE
IN THE ASSIGNOR'S BUSINESS, FOR THE FEE SIMPLE TITLE TO BUSINESS REAL
ESTATE.  THIS OIL PAYMENT ASSIGNMENT, LIKE THE ONES MENTIONED ABOVE,
WAS IN THE AMOUNT OF THE UNCONTESTED FAIR MARKET VALUE OF THE REAL
ESTATE RECEIVED, PLUS INTEREST ON THE UNPAID BALANCE REMAINING FROM
TIME TO TIME. 

FIRST, AS TO WHETHER THE PROCEEDS WERE TAXABLE AS LONGTERM CAPITAL
GAINS UNDER SEC.  117 (FN4) OR AS ORDINARY INCOME SUBJECT TO
DEPLETION.  THE COURT OF APPEALS STARTED FROM THE PREMISE, LAID DOWN IN
TEXAS DECISIONS, SEE ESPECIALLY TENNANT V. DUNN, 130 TEX. 285, 110
S.W.2D 53, THAT OIL PAYMENTS ARE INTERESTS IN LAND.  WE TOO PROCEED ON
THAT BASIS; AND YET WE CONCLUDE THAT THE CONSIDERATION RECEIVED FOR
THESE OIL PAYMENT RIGHTS (AND THE SULPHUR PAYMENT RIGHT) WAS TAXABLE AS
ORDINARY INCOME, SUBJECT TO DEPLETION. 

THE PURPOSE OF SEC. 117 WAS "TO RELIEVE THE TAXPAYER FROM  ...
EXCESSIVE TAX BURDENS ON GAINS RESULTING FROM A CONVERSION OF CAPITAL
INVESTMENTS, AND TO REMOVE THE DETERRENT EFFECT OF THOSE BURDENS ON
SUCH CONVERSIONS."  SEE BURNET V. HARMEL, 287 U.S. 103, 106.  AND THIS
EXCEPTION HAS ALWAYS BEEN NARROWLY CONSTRUED SO AS TO PROTECT THE
REVENUE AGAINST ARTFUL DEVICES.  SEE CORN PRODUCTS REFINING CO. V.
COMMISSIONER, 350 U.S. 46, 52. 

WE DO NOT SEE HERE ANY CONVERSION OF A CAPITAL INVESTMENT.  THE LUMP
SUM CONSIDERATION SEEMS ESSENTIALLY A SUBSTITUTE FOR WHAT WOULD
OTHERWISE BE RECEIVED AT A FUTURE TIME AS ORDINARY INCOME.  THE PAY-OUT
OF THESE PARTICULAR ASSIGNED OIL PAYMENT RIGHTS COULD BE ASCERTAINED
WITH CONSIDERABLE ACCURACY.  SUCH ARE THE STIPULATIONS, FINDINGS, OR
CLEAR INFERENCES.  IN THE O'CONNOR CASE, THE PAY-OUT OF THE ASSIGNED
OIL PAYMENT RIGHT WAS SO ASSURED THAT THE PURCHASER OBTAINED A
$9,990,350 PURCHASE MONEY LOAN AT 3 1/2 PERCENT INTEREST WITHOUT ANY
SECURITY OTHER THAN A DEED OF TRUST OF THE $10,000,000 OIL PAYMENT
RIGHT, HE RECEIVING 4 PERCENT FROM THE TAXPAYER.  ONLY A FRACTION OF
THE OIL OR SULPHUR RIGHTS WERE TRANSFERRED, THE BALANCE BEING
RETAINED.  (FN5)  EXCEPT IN THE FLEMING CASE, WHICH WE WILL DISCUSS
LATER, CASH WAS RECEIVED WHICH WAS EQUAL TO THE AMOUNT OF THE INCOME TO
ACCRUE DURING THE TERM OF THE ASSIGNMENT, THE ASSIGNEE BEING
COMPENSATED BY INTEREST ON HIS ADVANCE.  THE SUBSTANCE OF WHAT WAS
ASSIGNED WAS THE RIGHT TO RECEIVE FUTURE INCOME.  THE SUBSTANCE OF WHAT
WAS RECEIVED WAS THE PRESENT VALUE OF INCOME WHICH THE RECIPIENT WOULD
OTHERWISE OBTAIN IN THE FUTURE.  IN SHORT, CONSIDERATION WAS PAID FOR
THE RIGHT TO RECEIVE FUTURE INCOME, NOT FOR AN INCREASE IN THE VALUE OF
THE INCOME-PRODUCING PROPERTY. 

THESE ARRANGEMENTS SEEM TO US TRANSPARENT DEVICES.  THEIR FORMS DO
NOT CONTROL.  THEIR ESSENCE IS DETERMINED NOT BY SUBTLETIES OF
DRAFTSMANSHIP BUT BY THEIR TOTAL EFFECT.  SEE HELVERING V. CLIFFORD,
309 U.S. 331; HARRISON V. SCHAFFNER, 312 U.S. 579.  WE HAVE HELD THAT
IF ONE, ENTITLED TO RECEIVE AT A FUTURE DATE INTEREST ON A BOND OR
COMPENSATION FOR SERVICES, MAKES A GRANT OF IT BY ANTICIPATORY
ASSIGNMENT, HE REALIZES TAXABLE INCOME AS IF HE HAD COLLECTED THE
INTEREST OR RECEIVED THE SALARY AND THEN PAID IT OVER.  THAT IS THE
TEACHING OF HELVERING V. HORST, 311 U.S. 112, AND HARRISON V.
SCHAFFNER, SUPRA; AND IT IS APPLICABLE HERE.  AS WE STATED IN HELVERING
V. HORST, SUPRA, AT 117, "THE TAXPAYER HAS EQUALLY ENJOYED THE FRUITS
OF HIS LABOR OR INVESTMENT AND OBTAINED THE SATISFACTION OF HIS DESIRES
WHETHER HE COLLECTS AND USES THE INCOME TO PROCURE THOSE SATISFACTIONS,
OR WHETHER HE DISPOSES OF HIS RIGHT TO COLLECT IT AS THE MEANS OF
PROCURING THEM."  THERE THE TAXPAYER DETACHED INTEREST COUPONS FROM
NEGOTIABLE BONDS AND PRESENTED THEM AS A GIFT TO HIS SON.  THE INTEREST
WHEN PAID WAS HELD TAXABLE TO THE FATHER.  HERE, EVEN MORE CLEARLY THAN
THERE, THE TAXPAYER IS CONVERTING FUTURE INCOME INTO PRESENT INCOME. 

SECOND, AS TO THE FLEMING CASE.  THE COURT OF APPEALS IN THE FLEMING
CASE HELD THAT THE TRANSACTIONS WERE TAXFREE UNDER SEC. 112(B)(1) WHICH
PROVIDES: 

"NO GAIN OR LOSS SHALL BE RECOGNIZED IF PROPERTY HELD FOR PRODUCTIVE
USE IN TRADE OR BUSINESS OR FOR INVESTMENT (NOT INCLUDING STOCK IN
TRADE OR OTHER PROPERTY HELD PRIMARILY FOR SALE, NOR STOCKS, BONDS,
NOTES, CHOSES IN ACTION, CERTIFICATES OF TRUST OR BENEFICIAL INTEREST,
OR OTHER SECURITIES OR EVIDENCES OF INDEBTEDNESS OR INTEREST) IS
EXCHANGED SOLELY FOR PROPERTY OF A LIKE KIND TO BE HELD EITHER FOR
PRODUCTIVE USE IN TRADE OR BUSINESS OR FOR INVESTMENT."  53 STAT. 37. 

IN THE ALTERNATIVE AND AS A SECOND GROUND, IT HELD THAT THIS CASE,
TOO, WAS GOVERNED BY SEC. 117. 

WE AGREE WITH THE TAX COURT, 24 T.C. 818, THAT THIS IS NOT A TAX-FREE
EXCHANGE UNDER SEC. 112(B)(1).  TREASURY REGULATIONS 111, PROMULGATED
UNDER THE 1939 ACT, PROVIDE IN SEC. 39.112(B)(1)-1 AS RESPECTS THE
WORDS "LIKE KIND," AS USED IN SEC. 112(B)(1), THAT "ONE KIND OR CLASS
OF PROPERTY MAY NOT  ...  BE EXCHANGED FOR PROPERTY OF A DIFFERENT KIND
OR CLASS."  THE EXCHANGE CANNOT SATISFY THAT TEST WHERE THE EFFECT
UNDER THE TAX LAWS IS A TRANSFER OF FUTURE INCOME FROM OIL LEASES FOR
REAL ESTATE.  AS WE HAVE SEEN, THESE OIL PAYMENT ASSIGNMENTS WERE
MERELY ARRANGEMENTS FOR DELAYED CASH PAYMENT OF THE PURCHASE PRICE OF
REAL ESTATE, PLUS INTEREST.  MOREOVER, SEC. 39.112(A)-1 STATES THAT THE
"UNDERLYING ASSUMPTION OF THESE EXCEPTIONS IS THAT THE NEW PROPERTY IS
SUBSTANTIALLY A CONTINUATION OF THE OLD INVESTMENT STILL
UNLIQUIDATED."  YET THE OIL PAYMENT ASSIGNMENTS WERE NOT CONVERSIONS OF
CAPITAL INVESTMENTS, AS WE HAVE SEEN.  REVERSED. 

FN1  AN OIL AND GAS LEASE ORDINARILY CONVEYS THE ENTIRE MINERAL
INTEREST LESS ANY ROYALTY INTEREST RETAINED BY THE LESSOR.  THE OWNER
OF THE LEASE IS SAID TO OWN THE "WORKING INTEREST" BECAUSE HE HAS THE
RIGHT TO DEVELOP AND PRODUCE THE MINERALS. 

IN ANDERSON V. HELVERING, 310 U.S. 404, WE DESCRIBED AN OIL PAYMENT
AS "THE RIGHT TO A SPECIFIED SUM OF MONEY, PAYABLE OUT OF A SPECIFIED
PERCENTAGE OF THE OIL, OR THE PROCEEDS RECEIVED FROM THE SALE OF SUCH
OIL, IF, AS AND WHEN PRODUCED."  ID., AT 410.  A ROYALTY INTEREST IS "A
RIGHT TO RECEIVE A SPECIFIED PERCENTAGE OF ALL OIL AND GAS PRODUCED"
BUT, UNLIKE THE OIL PAYMENT, IS NOT LIMITED TO A SPECIFIED SUM OF
MONEY.  THE ROYALTY INTEREST LASTS DURING THE ENTIRE TERM OF THE
LEASE.  ID., AT 409. 

FN2  SEE NOTE 1, SUPRA. 

FN3  BOLING DOME IS A TRACT COMPOSED OF VARIOUS PARCELS OF LAND.  THE
OWNERS OF THE ROYALTY INTERESTS IN SULPHUR PRODUCED FROM THE SEPARATE
PARCELS ENTERED INTO A POOLING AGREEMENT BY WHICH ROYALTIES FROM
SULPHUR PRODUCED ANYWHERE IN BOLING DOME WERE DISTRIBUTED PRO RATA
AMONG ALL THE ROYALTY INTEREST HOLDERS.  IN THAT SENSE WAS THE INTEREST
OF EACH "POOLED." 

FN4  SECTION 117(A)(1) PROVIDES IN RELEVANT PART: 

"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(1), OR REAL PROPERTY USED IN THE TRADE OR BUSINESS OF THE
TAXPAYER."  53 STAT. 50, AS AMENDED, 56 STAT. 846. 


"THE TERM 'LONG-TERM CAPITAL GAIN' MEANS GAIN FROM THE SALE OR
EXCHANGE OF A CAPITAL ASSET HELD FOR MORE THAN 6 MONTHS, IF AND TO THE
EXTENT SUCH GAIN IS TAKEN INTO ACCOUNT IN COMPUTING NET INCOME."  53
STAT. 51, AS AMENDED, 56 STAT. 843. 


"IN THE CASE OF A TAXPAYER, OTHER THAN A CORPORATION, ONLY THE
FOLLOWING PERCENTAGES OF THE GAIN OR LOSS RECOGNIZED UPON THE SALE OR
EXCHANGE OF A CAPITAL ASSET SHALL BE TAKEN INTO ACCOUNT IN COMPUTING
NET CAPITAL GAIN, NET CAPITAL LOSS, AND NET INCOME: 

"100 PER CENTUM IF THE CAPITAL ASSET HAS BEEN HELD FOR NOT MORE THAN
6 MONTHS. 

"50 PER CENTUM IF THE CAPITAL ASSET HAS BEEN HELD FOR MORE THAN 6
MONTHS."  56 STAT. 843. 

FN5  UNTIL 1946 THE COMMISSIONER AGREED WITH THE CONTENTION OF THE
TAXPAYERS IN THESE CASES THAT THE ASSIGNMENT OF AN OIL PAYMENT RIGHT
WAS PRODUCTIVE OF A LONG-TERM CAPITAL GAIN.  IN 1946 HE CHANGED HIS
MIND AND RULED THAT "CONSIDERATION (NOT PLEDGED FOR DEVELOPMENT)
RECEIVED FOR THE ASSIGNMENT OF A SHORT-LIVED IN-OIL PAYMENT RIGHT
CARVED OUT OF ANY TYPE OF DEPLETABLE INTEREST IN OIL AND GAS IN PLACE
(INCLUDING A LARGER IN-OIL PAYMENT RIGHT) IS ORDINARY INCOME SUBJECT TO
THE DEPLETION ALLOWANCE IN THE ASSIGNOR'S HANDS."  G.C.M. 24849, 1946-1
CUM. BULL.  66, 69.  THIS RULING WAS MADE APPLICABLE "ONLY TO SUCH
ASSIGNMENTS MADE ON OR AFTER APRIL 1, 1946," I.T. 3895, 1948-1 CUM.
BULL.  39.  IN 1950 A FURTHER RULING WAS MADE THAT REPRESENTS THE
PRESENT VIEW OF THE COMMISSIONER.  I.T. 4003, 1950-1 CUM. BULL.  10,
11, READS IN RELEVANT PART AS FOLLOWS:    "AFTER CAREFUL STUDY AND
CONSIDERABLE EXPERIENCE WITH THE APPLICATION OF G.C.M. 24849, SUPRA, IT
IS NOW CONCLUDED THAT THERE IS NO LEGAL OR PRACTICAL BASIS FOR
DISTINGUISHING BETWEEN SHORT-LIVED AND LONG-LIVED IN-OIL PAYMENT
RIGHTS.  IT IS, THEREFORE, THE PRESENT POSITION OF THE BUREAU THAT THE
ASSIGNMENT OF ANY IN-OIL PAYMENT RIGHT (NOT PLEDGED FOR DEVELOPMENT),
WHICH EXTENDS OVER A PERIOD LESS THAN THE LIFE OF THE DEPLETABLE
PROPERTY INTEREST FROM WHICH IT IS CARVED, IS ESSENTIALLY THE
ASSIGNMENT OF EXPECTED INCOME FROM SUCH PROPERTY INTEREST.  THEREFOE,
THE ASSIGNMENT FOR A CONSIDERATION OF ANY SUCH IN-OIL PAYMENT RIGHT
RESULTS IN THE RECEIPT OF ORDINARY INCOME BY THE ASSIGNOR WHICH IS
TAXABLE TO HIM WHEN RECEIVED OR ACCRUED, DEPENDING UPON THE METHOD OF
ACCOUNTING EMPLOYED BY HIM.  WHERE THE ASSIGNMENT OF THE IN-OIL PAYMENT
RIGHT IS DONATIVE, THE TRANSACTION IS CONSIDERED AS AN ASSIGNMENT OF
FUTURE INCOME WHICH IS TAXABLE TO THE DONOR AT SUCH TIME AS THE INCOME
FROM THE ASSIGNED PAYMENT RIGHT ARISES. 

"NOTWITHSTANDING THE FOREGOING, G.C.M. 24849, SUPRA, AND I.T. 3935,
SUPRA, DO NOT APPLY WHERE THE ASSIGNED IN-OIL PAYMENT RIGHT CONSTITUTES
THE ENTIRE DEPLETABLE INTEREST OF THE ASSIGNOR IN THE PROPERTY OR A
FRACTION EXTENDING OVER THE ENTIRE LIFE OF THE PROPERTY." 

THE PRE-1946 ADMINISTRATIVE PRACTICE WAS NOT REFLECTED IN ANY
PUBLISHED RULING OR REGULATION.  IT THEREFORE WILL NOT BE PRESUMED TO
HAVE BEEN KNOWN TO CONGRESS AND INCORPORATED INTO THE LAW BY RE
ENACTMENT.  SEE HELVERING V. N.Y. TRUST CO., 292 U.S. 455, 467-468. 
CF. UNITED STATES V. LESLIE SALT CO., 350 U.S. 383, 389-397.  MOREOVER,
PRIOR ADMINISTRATIVE PRACTICE IS ALWAYS SUBJECT TO CHANGE "THROUGH
EXERCISE BY THE ADMINISTRATIVE AGENCY OF ITS CONTINUING RULE-MAKING
POWER."  SEE HELVERING V. REYNOLDS, 313 U.S. 428, 432. 
..END :















DESSALERNOS V. SAVORETTI 356 U.S. 269 


NO. 287.  ARGUED APRIL 3, 1958 - DECIDED APRIL 14, 1958 - 244 F.2D 178,
JUDGMENT VACATED AND CAUSE REMANDED TO DISTRICT COURT WITH DIRECTIONS. 


IN THE CIRCUMSTANCES OF THIS CASE, PETITIONER WAS ENTITLED TO HAVE HIS
APPLICATION FOR SUSPENSION OF DEPORTATION CONSIDERED UNDER SEC.
244(A)(1) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952. 

DESSALERNOS V. SAVORETTI, DISTRICT DIRECTOR, IMMIGRATION AND
NATURALIZATION SERVICE. 

CERTIORARI TO THE UNTIED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

IT WAS STIPULATED BY THE PARTIES IN THE DISTRICT COURT THAT THE SOLE
QUESTION FOR DECISION IS WHETHER PETITIONER IS ENTITLED TO HAVE HIS
APPLICATION FOR SUSPENSION OF DEPORTATION CONSIDERED UNDER SEC.
244(A)(1) OF THE IMMIGRATION AND NATIONALTY ACT OF 1952 (66 STAT.  163,
214; 8 U.S.C. SEC. 1254(A)(1)).  WE HOLD THAT PETITIONER IS SO
ENTITLED.  THE JUDGMENT OF THE COURT OF APPEALS (244 F.2D 178) IS
THEREFORE VACATED AND THE CAUSE IS REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO ENTER AN APPROPRIATE JUDGMENT DECLARING THAT PETITIONER
IS ENTITLED TO HAVE HIS APPLICATION FOR SUSPENSION OF DEPORTATION
CONSIDERED BY THE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE
UNDER SEC. 244(A)(1).  SO ORDERED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, WOULD DISMISS THE
WRIT FOR LACK OF JURISDICTION.   IN HIS VIEW THE RECORD FAILS TO
DISCLOSE A JUSTICIABLE CASE OR CONTROVERSY BECAUSE (1) THE UNDISTURBED
ADMINISTRATIVE FINDING THAT PETITIONER "DOES NOT MEET THE REQUIREMENT
THAT HIS DEPORTATION WOULD RESULT IN EXCEPTIONAL AND EXTREMELY UNUSUAL
HARDSHIP TO HIMSELF," ESTABLISHES THAT PETITIONER IS NOT ENTITLED TO
SUSPENSION OF DEPORTATION UNDER EITHER SUBDIVISION (A)(1) OR (A)(5) OF
SEC. 244 OF THE IMMIGRATION AND NATIONALTY ACT OF 1952; AND (2) THE
PARTIES' STIPULATION IN THE DISTRICT COURT IS INEFFECTIVE TO CONFER
JURISDICTION ON THIS COURT TO DECIDE THE QUESTION SOUGHT TO BE
PRESENTED.  SEE SWIFT & CO. V. HOCKING VALLEY R. CO., 243 U.S. 281,
289; AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240-241.  IN HOLDING
ON THIS RECORD THAT SUBDIVISION (A)(1) GOVERNS PETITIONER'S CASE THE
COURT HAS, IN HIS VIEW, RENDERED WHAT IN EFFECT IS AN ADVISORY
OPINION. 

MR. JUSTICE FRANKFURTER WOULD JOIN MR. JUSTICE HARLAN IF HE READ THE
RECORD TO BE AS CLEAR AS THE LATTER FINDS IT TO BE.  BEING IN
SUFFICIENT DOUBT ABOUT THE SCOPE AND MEANING OF THE STIPULATION, HE
JOINS THE COURT'S OPINION.  THIS LEAVES OPEN, ON THE REMAND, THE
ADMINISTRATIVE DETERMINATION OF THE ISSUES UNDER SEC. 244(A)(1). 
..END :























BUTLER V. WHITEMAN 356 U.S. 271 


NO. 200, MISC.  DECIDED APRIL 14, 1958 - CERTIORARI GRANTED - 243 F.2D
563, REVERSED AND CAUSE REMANDED FOR TRIAL. 


IN THIS CASE ARISING UNDER THE JONES ACT, PETITIONER'S EVIDENCE
PRESENTED AN EVIDENTIARY BASIS FOR JURY FINDINGS AS TO WHETHER OR NOT
(1) THE TUG INVOLVED WAS IN NAVIGATION, (2) THE PETITIONER'S DECEDENT
WAS A SEAMAN AND MEMBER OF THE CREW OF THE TUG WITHIN THE MEANING OF
THE JONES ACT, AND (3) EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING
DECEDENT'S DEATH. 

BUTLER ET AL. V. WHITEMAN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED AND THE
CAUSE IS REMANDED FOR TRIAL.  WE HOLD THAT THE PETITIONER'S EVIDENCE
PRESENTED AN EVIDENTIARY BASIS FOR JURY FINDINGS AS TO (1) WHETHER OR
NOT THE TUG G.W. WHITEMAN WAS IN NAVIGATION, SENKO V. LACROSSE DREDGING
CORP., 352 U.S. 370, 373; CARUMBO V. CAPE COD S.S. CO., 123 F.2D 991;
(2) WHETHER OR NOT THE PETITIONER'S DECEDENT WAS A SEAMAN AND MEMBER OF
THE CREW OF THE TUG WITHIN THE MEANING OF THE JONES ACT, 41 STAT. 1007,
46 U.S.C. SEC. 688; SENKO V. LACROSSE DREDGING CORP., SUPRA; GIANFALA
V. TEXAS CO., 350 U.S. 879; SOUTH CHICAGO CO. V. BASSETT, 309 U.S. 251;
GRIMES V. RAYMOND CONCRETE PILE CO., 356 U.S. 252; AND (3) WHETHER OR
NOT EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING DECEDENT'S DEATH. 
FERGUSON V. MOORE-MCCORMACK LINES, 352 U.S. 521; ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500; SCHULZ V. PENNSYLVANIA R. CO., 350 U.S.
523. 

FOR REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI PACIFIC R.
CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE VIEW THAT THE
WRIT OF CERTIORARI IS IMPROVIDENTLY GRANTED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITTAKER JOINS, DISSENTING. 

I THINK THE EVIDENCE IS INSUFFICIENT TO RAISE A QUESTION FOR THE JURY
AS TO WHETHER PETITIONER'S DECEDENT AT THE TIME OF THE ACCIDENT WAS A
SEAMAN WITHIN THE PURVIEW OF THE JONES ACT. 

RESPONDENT WAS THE OWNER OF A WHARF, BARGE AND TUG, ALL SITUATED ON
THE MISSISSIPPI RIVER.  THE BARGE WAS MOORED TO THE WHARF, AND THE TUG
WAS LASHED TO THE BARGE.  ON OCTOBER 7, 1953, THE DECEDENT MET DEATH BY
DROWNING IN UNCLEAR CIRCUMSTANCES.  HE WAS LAST SEEN ALIVE RUNNING
ACROSS THE BARGE TO THE TUG, AND IT WAS PETITIONER'S THEORY OF THE CASE
THAT THE DECEDENT HAD FALLEN INTO THE RIVER BETWEEN THE BARGE AND THE
TUG, AND THAT RESPONDENT WAS LIABLE UNDER THE JONES ACT BECAUSE OF HIS
NEGLIGENT FAILURE TO PROVIDE A GANGPLANK FOR CROSSING BETWEEN THE TWO
VESSELS. 

FOR SOME MONTHS BEFORE THE ACCIDENT THE TUG HAD BEEN WITHDRAWN FROM
NAVIGATION BECAUSE IT WAS INOPERABLE.  DURING THE ENTIRE YEAR OF 1953
THE TUG HAD NEITHER CAPTAIN NOR CREW AND REPORTED NO EARNINGS; THE ONLY
EVIDENCE OF ITS MOVEMENT DURING THE YEAR RELATED TO AN OCCASION ON
WHICH IT WAS TOWED TO DRY DOCK.  AT THE TIME OF THE ACCIDENT THE TUG
WAS UNDERGOING REHABILITATION PREPARATORY TO A COAST GUARD INSPECTION,
PRESUMABLY IN ANTICIPATION OF A RETURN TO SERVICE.  DURING THE PERIOD
OF THE TUG'S INACTIVITY, THE DECEDENT WAS EMPLOYED AS A LABORER DOING
ODD JOBS AROUND RESPONDENT'S WHARF, AND ON THE MORNING OF THE ACCIDENT
HE HAD BEEN ENGAGED IN CLEANING THE BOILER OF THE TUG. 

IN MY OPINION IT TAXES IMAGINATION TO THE BREAKING POINT TO CONSIDER
THIS UNFORTUNATE INDIVIDUAL TO HAVE BEEN A SEAMAN AT THE TIME OF THE
ACCIDENT WITHIN THE MEANING OF THE JONES ACT, AND I THINK THAT IF A
JURY WERE SO TO FIND, ITS VERDICT WOULD HAVE TO BE SET ASIDE.  DESPER
V. STARVED ROCK FERRY CO., 342 U.S. 187.  BECAUSE I WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS ON THIS GROUND, I DO NOT REACH THE
QUESTION WHETHER THE ACCIDENT WAS ATTRIBUTABLE IN ANY WAY TO
RESPONDENT'S NEGLIGENCE. 
..END :





















GEORGIA V. UNITED STATES 356 U.S. 273 


NO. 774.  DECIDED APRIL 14, 1958 - 156 F. SUPP. 711, AFFIRMED. 


GEORGIA ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















UNITED STATES V. F.&M. SCHAEFER BREWING CO. 356 U.S. 227 


NO. 79.  ARGUED JANUARY 6, 1958 - DECIDED APRIL 7, 1958 - 236 F.2D 889,
REVERSED. 


IN RESPONDENT'S SUIT AGAINST THE GOVERNMENT IN A FEDERAL DISTRICT
COURT FOR THE RECOVERY OF MONEY ONLY, WHICH WAS TRIED WITHOUT A JURY,
THE JUDGE FILED AN OPINION ON APRIL 14 GRANTING RESPONDENT'S MOTION FOR
SUMMARY JUDGMENT, WITHOUT SPECIFYING THE AMOUNT, AND THE CLERK NOTED
THAT FACT IN THE CIVIL DOCKET ON THE SAME DATE.  ON MAY 24, THE JUDGE
SIGNED AND FILED A FORMAL DOCUMENT CAPTIONED "JUDGMENT," WHICH
SPECIFIED THE EXACT AMOUNT OF RECOVERY, AND THE CLERK NOTED THAT FACT
IN THE CIVIL DOCKET ON THE SAME DATE.  THE GOVERNMENT FILED A NOTICE OF
APPEAL WITHIN 60 DAYS AFTER THE LATTER ENTRY BUT MORE THAN 60 DAYS
AFTER THE FORMER ENTRY.  HELD:  IN THE CIRCUMSTANCES OF THIS CASE, THE
APPEAL WAS TAKEN WITHIN 60 DAYS FROM THE "ENTRY OF THE JUDGMENT," AS
REQUIRED BY RULE 73(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE, AND IT
SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY.  PP. 228-236. 

(A)  WHATEVER MAY BE THE PRACTICAL NEEDS, NO PRESENT STATUTE OR RULE
REQUIRES THAT A FINAL JUDGMENT BE CONTAINED IN A SEPARATE DOCUMENT SO
LABELED.  P. 232. 

(B)  WHEN AN OPINION EMBODIES THE ESSENTIAL ELEMENTS OF A JUDGMENT
FOR MONEY AND CLEARLY EVIDENCES THE JUDGE'S INTENTION THAT IT SHALL BE
HIS FINAL ACT IN THE CASE AND IT HAS BEEN FILED AND ENTERED IN THE
DOCKET, THE TIME TO APPEAL STARTS TO RUN UNDER RULE 73(A).  PP. 232
233. 

(C)  WHEN AN OPINION LEAVES DOUBTFUL WHETHER THE JUDGE INTENDED IT TO
BE HIS FINAL ACT IN THE CASE, THE CLERK'S NOTATION OF IT IN THE DOCKET
CANNOT CONSTITUTE "ENTRY OF THE JUDGMENT" WITHIN THE MEANING OF RULE
58.  P. 233. 

(D)  A FINAL JUDGMENT FOR MONEY MUST, AT LEAST, DETERMINE, OR SPECIFY
THE MEANS OF DETERMINING, THE AMOUNT; AND AN OPINION WHICH DOES NOT
EITHER EXPRESSLY OR BY REFERENCE DETERMINE THE AMOUNT OF MONEY AWARDED
LEAVES DOUBTFUL WHETHER IT WAS INTENDED BY THE JUDGE TO BE HIS FINAL
ACT IN THE CASE.  PP. 233-234. 

(E)  THE OPINION IN THIS CASE STATED THE AMOUNT OF MONEY ILLEGALLY
COLLECTED FROM RESPONDENT; BUT, BY ITS FAILURE TO STATE THE DATE OF
PAYMENT, IT FAILED TO STATE FACTS NECESSARY TO COMPUTE THE AMOUNT OF
INTEREST TO BE INCLUDED IN THE JUDGMENT; AND THIS OMISSION CANNOT BE
CURED BY A SEARCH OF THE RECORD, BECAUSE RULE 79(A) REQUIRES THE
CLERK'S ENTRY TO SHOW THE "SUBSTANCE OF THE JUDGMENT."  PP. 234-235. 

(F)  IN THE CIRCUMSTANCES OF THIS CASE, THE FORMAL "JUDGMENT" SIGNED
BY THE JUDGE ON MAY 24, RATHER THAN A STATEMENT IN THE OPINION FILED ON
APRIL 14, MUST BE CONSIDERED THE COURT'S JUDGMENT, AND THE TIME FOR
APPEAL RAN FROM ITS ENTRY IN THE DOCKET.  PP. 235-236. 

UNITED STATES V. F.&M. SCHAEFER BREWING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS QUESTIONS CONCERNING THE TIMELINESS OF AN APPEAL
BY THE GOVERNMENT FROM A SUMMARY JUDGMENT OF A DISTRICT COURT TO THE
COURT OF APPEALS IN AN ACTION FOR THE RECOVERY OF MONEY ONLY.  THE
BASIC QUESTION PRESENTED IS WHICH OF TWO SERIES OF JUDICIAL AND
MINISTERIAL ACTS - ONE ON APRIL 14 AND THE OTHER ON MAY 24, 1955 -
CONSTITUTED THE "JUDGMENT" AND "ENTRY OF THE JUDGMENT."  IF IT WAS THE
FORMER, THE APPEAL WAS OUT OF TIME, BUT IF THE LATTER, IT WAS NOT. 

THE OVERT FACTS ARE CLEAR AND UNDISPUTED.  RESPONDENT SUED THE
GOVERNMENT FOR $7,189.57, ALLEGED TO HAVE BEEN ILLEGALLY ASSESSED AND
COLLECTED FROM IT AS FEDERAL STAMP TAXES, AND FOR INTEREST THEREON FROM
THE DATE OF PAYMENT.  AFTER ISSUE WAS JOINED, RESPONDENT MOVED FOR
SUMMARY JUDGMENT.  THE DISTRICT JUDGE, AFTER HEARING THE MOTION, FILED
AN OPINION ON APRIL 14, 1955 (130 F. SUPP. 322), IN WHICH, AFTER
FINDING THAT RESPONDENT HAD PAID STAMP TAXES TO THE GOVERNMENT IN THE
AMOUNT OF $7,012.50 AND INTEREST IN THE AMOUNT OF $177.07, BUT MAKING
NO FINDING OF THE DATE OR DATES OF PAYMENT, HE REFERRED TO AN EARLIER
DECISION OF THE SAME LEGAL QUESTION BY HIS COLLEAGUE, JUDGE LEIBELL, IN
UNITED STATES V. NATIONAL SUGAR REFINING CO., 113 F. SUPP. 157, AND
CONCLUDED, SAYING: "I AM IN AGREEMENT WITH JUDGE LEIBELL'S ANALYSIS
AND, ACCORDINGLY, THE PLAINTIFF'S MOTION IS GRANTED."  THEREUPON, THE
CLERK MADE THE FOLLOWING NOTATION IN THE CIVIL DOCKET:  "APRIL 14,
1955.  RAYFIEL, J. DECISION RENDERED ON MOTION FOR SUMMARY JUDGMENT. 
MOTION GRANTED.  SEE OPINION ON FILE." 

THEREAFTER, ON MAY 24, 1955, COUNSEL FOR RESPONDENT PRESENTED TO THE
JUDGE, AND THE LATTER SIGNED AND FILED, A FORMAL DOCUMENT CAPTIONED
"JUDGMENT," WHICH REFERRED TO THE MOTION AND THE HEARING OF IT AND TO
THE "OPINION" OF APRIL 14, AND THEN: 

"ORDERED, ADJUDGED AND DECREED THAT THE PLAINTIFF, THE F.&M. SCHAEFER
BREWING CO., RECOVER OF THE DEFENDANT, UNITED STATES OF AMERICA, THE
SUM OF $7,189.57 AND INTEREST THEREON FROM FEBRUARY 19, 1954 IN THE
AMOUNT OF $542.80, TOGETHER WITH COSTS AS TAXED BY THE CLERK OF THE
COURT IN THE SUM OF $37, AGGREGATING THE SUM OF $7,769.37, AND THAT
PLAINTIFF HAVE JUDGMENT AGAINST DEFENDANT THEREFOR." 

ON THE SAME DAY THE CLERK STAMPED THE DOCUMENT "JUDGMENT RENDERED:
DATED:  MAY 24TH, 1955," AND MADE THE FOLLOWING NOTATION IN THE CIVIL
DOCKET: 

"MAY 24, 1955.  RAYFIEL, J. JUDGMENT FILED AND DOCKETED AGAINST
DEFENDANT IN THE SUM OF $7189.57 WITH INTEREST OF $542.80 TOGETHER WITH
COSTS $37 AMOUNTING IN ALL TO $7769.37.  BILL OF COSTS ATTACHED TO
JUDGMENT." 

ON JULY 21, 1955, THE GOVERNMENT FILED ITS NOTICE OF APPEAL FROM THE
ORDER "ENTERED IN THIS ACTION ON MAY 25TH, 1955  ...  ."  THEREAFTER,
RESPONDENT MOVED TO DISMISS THE APPEAL UPON THE GROUND THAT THE OPINION
OF APRIL 14 CONSTITUTED THE "JUDGMENT," THAT THE CLERK'S ENTRY OF THAT
DATE CONSTITUTED "ENTRY OF THE JUDGMENT," AND THAT THE APPEAL WAS NOT
TAKEN WITHIN 60 DAYS FROM THE "ENTRY OF THE JUDGMENT," AS REQUIRED BY
RULE 73(A).  (FN1)  THE COURT OF APPEALS, HOLDING THAT THE OPINION OF
APRIL 14 WAS A "DECISIVE AND COMPLETE ACT OF ADJUDICATION," AND THAT
THE NOTATION MADE BY THE CLERK IN THE CIVIL DOCKET ON THAT DATE
CONSTITUTED "ENTRY OF THE JUDGMENT" WITHIN THE MEANING OF RULE 58 AND
ADEQUATELY DISCLOSED THE "SUBSTANCE" OF THE JUDGMENT AS REQUIRED BY
RULE 79(A), SUSTAINED THE MOTION AND DISMISSED THE APPEAL AS UNTIMELY. 
236 F.2D 889.  BECAUSE OF AN ASSERTED CONFLICT AMONG THE CIRCUITS (FN2)
AND THE PUBLIC IMPORTANCE OF THE PROPER INTERPRETATION AND UNIFORM
APPLICATION OF THE PROVISIONS OF THE FEDERAL RULES GOVERNING THE TIME
WITHIN WHICH APPEALS MAY BE TAKEN FROM JUDGMENTS OF DISTRICT COURTS IN
ACTIONS FOR MONEY ONLY TRIED WITHOUT A JURY, WE GRANTED CERTIORARI. 
353 U.S. 907. 

STATED SUMMARILY, THE GOVERNMENT CONTENDS (1) THAT PRACTICAL
CONSIDERATIONS REQUIRE THAT A FINAL JUDGMENT BE CONTAINED IN A SPEARATE
DOCUMENT SO LABELED; (2) THAT THE DISTRICT JUDGE'S OPINION DID NOT
CONTAIN ANY OF THE ELEMENTS OF A FINAL JUDGMENT FOR MONEY NOR MANIFEST
AN INTENTION THAT IT WAS TO BE HIS FINAL ACT IN THE CASE; (3) THAT IT
WAS ONLY THE FORMAL JUDGMENT OF MAY 24 WHICH AWARDED ANY SUM OF MONEY
TO RESPONDENT AND WHICH INVOKED THE PROVISIONS OF RULE 58, SAYING "WHEN
THE COURT DIRECTS THAT A PARTY RECOVER ONLY MONEY OR COSTS OR THAT ALL
RELIEF BE DENIED, THE CLERK SHALL ENTER JUDGMENT FORTHWITH UPON RECEIPT
BY HIM OF THE DIRECTION"; (4) THAT WHERE, AS HERE, A FORMAL JUDGMENT IS
SIGNED AND FILED BY THE JUDGE IT IS PRIMA FACIE HIS FINAL DECISION,
AND, INASMUCH AS NOTHING IN HIS OPINION INDICATED ANY CONTRARY
INTENTION, THE FORMAL "JUDGMENT" CONSTITUTED HIS FINAL DECISION; AND
(5) THAT THE NOTATION MADE BY THE CLERK IN THE CIVIL DOCKET ON APRIL 14
DID NOT INDICATE AN AWARD OF ANY SUM OF MONEY TO RESPONDENT AND,
THEREFORE, DID NOT "SHOW  ...  THE SUBSTANCE OF A MONEY JUDGMENT OF THE
COURT," AS REQUIRED BY RULE 79(A) AND, HENCE, DID NOT CONSTITUTE "THE
ENTRY OF A JUDGMENT" FOR MONEY, WITHIN THE MEANING OF RULE 58, NOR
START THE RUNNING OF THE TIME TO APPEAL UNDER RULE 73(A). 

RESOLUTION OF THESE CONTENTIONS DEPENDS PRINCIPALLY UPON THE PROPER
CONSTRUCTION AND APPLICATION OF THE PERTINENT PROVISIONS OF RULES 58
AND 79(A).  RULE 58, IN PERTINENT PART, PROVIDES: 

"WHEN THE COURT DIRECTS THAT A PARTY RECOVER ONLY MONEY OR COSTS OR
THAT ALL RELIEF BE DENIED, THE CLERK SHALL ENTER JUDGMENT FORTHWITH
UPON RECEIPT BY HIM OF THE DIRECTION  ...  .  THE NOTATION OF A
JUDGMENT IN THE CIVIL DOCKET AS PROVIDED BY RULE 79(A) CONSTITUTES THE
ENTRY OF THE JUDGMENT; AND THE JUDGMENT IS NOT EFFECTIVE BEFORE SUCH
ENTRY." 

SO MUCH OF RULE 79(A) AS IS PERTINENT HERE PROVIDES: 

"ALL  ...  JUDGMENTS SHALL BE NOTED  ...  IN THE CIVIL DOCKET  ...  .
THESE NOTATIONS SHALL BE BRIEF BUT SHALL SHOW  ...  THE SUBSTANCE OF
EACH  ...  JUDGMENT OF THE COURT  ...  ." 

AT THE OUTSET THE GOVERNMENT CONTENDS THAT PRACTICAL CONSIDERATIONS -
NAMELY, CERTAINTY AS TO WHAT JUDICIAL PRONOUNCEMENTS ARE INTENDED TO BE
FINAL JUDGMENTS IN ORDER TO AVOID BOTH PREMATURE AND UNTIMELY APPEALS,
TO RENDER CERTAIN THE DATE OF JUDGMENT LIENS, AND TO ENABLE THE
PROCUREMENT OF WRITS OF EXECUTION, TRANSCRIPTS AND CERTIFIED COPIES OF
JUDGMENTS - REQUIRE THAT A JUDGMENT BE CONTAINED IN A SEPARATE DOCUMENT
SO LABELED, AND URGES US SO TO HOLD.  WHATEVER MAY BE THE PRACTICAL
NEEDS IN THESE RESPECTS, THE ANSWER IS THAT NO PRESENT STATUTE OR RULE
SO REQUIRES, AS THE GOVERNMENT CONCEDES, AND THE DECISIONAL LAW SEEMS
SETTLED THAT "NO FORM OF WORDS  ...  IS NECESSARY TO EVINCE THE
RENDITION OF A JUDGMENT."  UNITED STATES V. HARK, 320 U.S. 531, 534. 
SEE ALSO IN RE FORSTNER CHAIN CORPORATION, 177 F.2D 572, 576. 

WHILE AN OPINION MAY EMBODY A FINAL DECISION, THE QUESTION WHETHER IT
DOES SO DEPENDS UPON WHETHER THE JUDGE HAS OR HAS NOT CLEARLY DECLARED
HIS INTENTION IN THIS RESPECT IN HIS OPINION.  THEREFORE, WHEN, AS
HERE, THE ACTION IS FOR MONEY ONLY - WHETHER FOR A LIQUIDATED OR AN
UNLIQUIDATED AMOUNT, AS RULE 58 MAKES NO SUCH DISTINCTION - IT IS
NECESSARY TO DETERMINE WHETHER THE LANGUAGE OF THE OPINION EMBODIES THE
ESSENTIAL ELEMENTS OF A JUDGMENT FOR MONEY AND CLEARLY EVIDENCES THE
JUDGE'S INTENTION THAT IT SHALL BE HIS FINAL ACT IN THE CASE.  IF IT
DOES SO, IT CONSTITUTES HIS FINAL JUDGMENT AND, UNDER RULE 58, IT
"DIRECTS THAT A PARTY RECOVER A SUM OF MONEY," AND, "UPON RECEIPT BY
THE CLERK OF THE OPINION," REQUIRES HIM TO "ENTER JUDGMENT FORTHWITH"
AGAINST THE PARTY FOUND LIABLE FOR THE AMOUNT AWARDED, WHICH IS TO BE
DONE BY MAKING A BRIEF "NOTATION OF THE JUDGMENT IN THE CIVIL DOCKET
SHOWING THE SUBSTANCE OF THE JUDGMENT OF THE COURT AS PROVIDED BY RULE
79(A)."  WHEN ALL OF THESE ELEMENTS CLEARLY APPEAR FINAL JUDGMENT HAS
BEEN BOTH PRONOUNCED AND ENTERED, AND THE TIME TO APPEAL STARTS TO RUN
UNDER THE PROVISIONS OF RULE 73(A).  AND, AS CORRECTLY HELD BY THE
COURT OF APPEALS, THE LATER FILING AND ENTRY OF A MORE FORMAL JUDGMENT
COULD NOT CONSTITUTE A SECOND FINAL JUDGMENT IN THE CASE NOR EXTEND THE
TIME TO APPEAL.  236 F.2D, AT 892. 

BUT, ON THE OTHER HAND, IF THE OPINION LEAVES DOUBTFUL WHETHER THE
JUDGE INTENDED IT TO BE HIS FINAL ACT IN THE CASE - AND, IN AN ACTION
FOR MONEY, FAILURE TO DETERMINE EITHER EXPRESSLY OR BY REFERENCE THE
AMOUNT TO BE AWARDED IS STRONG EVIDENCE OF SUCH LACK OF INTENTION - ONE
CANNOT SAY THAT IT "DIRECTS THAT A PARTY RECOVER A SUM OF MONEY," AS
REQUIRED BY RULE 58 BEFORE THE CLERK "SHALL ENTER JUDGMENT FORTHWITH";
NOR CAN ONE SAY THAT THE CLERK'S "NOTATION IN THE CIVIL DOCKET" - IF IT
SETS FORTH NO MORE SUBSTANCE THAN IS CONTAINED OR DIRECTED IN THE
OPINION, AND BEING ONLY A MINISTERIAL ACT (IN RE FORSTNER CHAIN
CORPORATION, SUPRA, 177 F.2D, AT 576) IT MAY DO NO MORE - "SHOWS  ...
THE SUBSTANCE OF A JUDGMENT" OF THE COURT, AS REQUIRED BY RULE 79(A),
AND "CONSTITUTES THE ENTRY OF THE JUDGMENT" AGAINST A PARTY FOR A SUM
OF MONEY UNDER RULE 58. 

WHILE, AS STATED, THERE IS NO STATUTE OR RULE THAT SPECIFIES THE
ESSENTIAL ELEMENTS OF A FINAL JUDGMENT, AND THIS COURT HAS HELD THAT
"NO FORM OF WORDS AND NO PECULIAR FORMAL ACT IS NECESSARY TO EVINCE THE
RENDITION OF A JUDGMENT" (UNITED STATES V. HARK, SUPRA, AT 534), YET IT
IS OBVIOUS THAT A FINAL JUDGMENT FOR MONEY MUST, AT LEAST, DETERMINE,
OR SPECIFY THE MEANS FOR DETERMINING, THE AMOUNT (UNITED STATES V.
COOKE, 215 F.2D 528, 530); AND AN OPINION, IN SUCH A CASE, WHICH DOES
NOT EITHER EXPRESSLY OR BY REFERENCE DETERMINE THE AMOUNT OF MONEY
AWARDED REVEALS DOUBT, AT THE VERY LEAST, WHETHER THE OPINION WAS A
"COMPLETE ACT OF ADJUDICATION" - TO BORROW A PHRASE FROM THE COURT OF
APPEALS - OR WAS INTENDED BY THE JUDGE TO BE HIS FINAL ACT IN THE
CASE. 

BUT RESPONDENT ARGUES, AS THE COURT OF APPEALS HELD, THAT THE OPINION
STATED THE AMOUNT OF MONEY ILLEGALLY COLLECTED FROM RESPONDENT AND,
THEREFORE, ADEQUATELY DETERMINED THE AMOUNT AWARDED, AND THAT INASMUCH
AS THE CLERK'S ENTRY INCORPORATED THE OPINION BY REFERENCE, IT, TOO,
ADEQUATELY STATED THE AMOUNT OF THE JUDGMENT.  THIS CONTENTION MIGHT
WELL BE ACCEPTED WERE IT NOT FOR THE FACT THAT THE ACTION ALSO SOUGHT
RECOVERY OF INTEREST ON THE AMOUNT PAID BY RESPONDENT FROM THE DATE OF
PAYMENT TO THE DATE OF JUDGMENT, AND FOR THE FACT THAT THE OPINION DOES
NOT STATE THE DATE OR DATES OF PAYMENT AND, HENCE, DID NOT STATE FACTS
NECESSARY TO COMPUTE THE AMOUNT OF INTEREST TO BE INCLUDED IN THE
JUDGMENT.  CF. UNITED STATES V. COOKE, SUPRA, AT 530.  IN AN EFFORT TO
COUNTER THE EFFECT OF THESE OMISSIONS, RESPONDENT STATES THAT A SEARCH
OF THE RECORD, WHICH IT URGES WE SHOULD MAKE, WOULD SHOW THAT THE
GOVERNMENT'S ANSWER ADMITTED THE DATE OF PAYMENT, AND THUS WOULD
FURNISH THE INFORMATION NECESSARY TO COMPUTE THE AMOUNT OF INTEREST TO
BE INCLUDED IN THE JUDGMENT.  IT RELIES UPON A STATEMENT IN THE
FORSTNER CASE, SUPRA, SAYING "WHETHER SUCH A JUDGMENT HAS BEEN RENDERED
DEPENDS PRIMARILY UPON THE INTENTION OF THE COURT, AS GATHERED FROM THE
RECORD AS A WHOLE ...  ."  177 F.2D, AT 576.  THIS ARGUMENT CANNOT BE
ACCEPTED UNDER THE FACTS HERE FOR THE REASON THAT RULE 79(A) EXPRESSLY
REQUIRES THAT THE CLERK'S ENTRY "SHALL SHOW  ...  THE SUBSTANCE OF THE
JUDGMENT OF THE COURT  ...  ."  SURELY THE AMOUNT OF A JUDGMENT FOR
MONEY IS A VITAL PART OF ITS SUBSTANCE.  TO HOLD THAT ONE MUST SEARCH
THE WHOLE RECORD TO DETERMINE THE AMOUNT, OR THE FACTS NECESSARY TO
COMPUTE THE AMOUNT, OF A FINAL JUDGMENT FOR MONEY WOULD BE TO IGNORE
THE QUOTED PROVISION OF RULE 79(A). 

IN THESE CIRCUMSTANCES, THE RULE DECLARED BY THIS COURT IN THE HARK
CASE - THOUGH A CRIMINAL CASE AND, THEREFORE, NOT GOVERNED BY THE
FEDERAL RULES OF CIVIL PROCEDURE, WHICH AS WE HAVE SHOWN AFFORD NO AID
IN DETERMINING JUDICIAL INTENT - IS EXACTLY APPOSITE AND CONTROLLING. 

"WHERE, AS HERE, A FORMAL JUDGMENT IS SIGNED BY THE JUDGE, THIS IS
PRIMA FACIE THE DECISION OR JUDGMENT RATHER THAN A STATEMENT IN AN
OPINION OR A DOCKET ENTRY  ...  .  THE JUDGE WAS CONSCIOUS, AS WE ARE,
THAT HE WAS WITHOUT POWER TO EXTEND THE TIME FOR APPEAL.  HE ENTERED A
FORMAL ORDER OF RECORD.  WE ARE UNWILLING TO ASSUME THAT HE DEEMED THIS
AN EMPTY FORM OR THAT HE ACTED FROM A PURPOSE INDIRECTLY TO EXTEND THE
APPEAL TIME, WHICH HE COULD NOT DO OVERTLY.  IN THE ABSENCE OF ANYTHING
OF RECORD TO LEAD TO A CONTRARY CONCLUSION, WE TAKE THE FORMAL ORDER OF
MARCH 31 AS IN FACT AND IN LAW THE PRONOUNCEMENT OF THE COURT'S
JUDGMENT AND AS FIXING THE DATE FROM WHICH THE TIME FOR APPEAL RAN." 
UNITED STATES V. HARK, 320 U.S., AT 534-535.  SEE ALSO UNITED STATES V.
HIGGINSON, 238 F.2D 439, 443. 

THE ACTIONS OF ALL CONCERNED - OF THE JUDGE IN NOT STATING IN HIS
OPINION THE AMOUNT, OR MEANS FOR DETERMINING THE AMOUNT, OF THE
JUDGMENT; OF THE CLERK IN NOT STATING THE AMOUNT OF THE JUDGMENT IN HIS
NOTATION ON THE CIVIL DOCKET; OF COUNSEL FOR THE GOVERNMENT IN NOT
APPEALING FROM THE "OPINION"; OF COUNSEL FOR RESPONDENT IN PREPARING
AND PRESENTING TO THE JUDGE A FORMAL "JUDGMENT" ON MAY 24; AND,
FINALLY, OF THE JUDGE HIMSELF IN SIGNING AND FILING THE FORMAL
"JUDGMENT" ON THE LATTER DATE - CLEARLY SHOW THAT NONE OF THEM
UNDERSTOOD THE OPINION TO BE THE JUDGE'S FINAL ACT OR TO CONSTITUTE HIS
FINAL JUDGMENT IN THE CASE.  THEREFORE, AS IN HARK, WE MUST TAKE THE
COURT'S FORMAL JUDGMENT OF MAY 24 AND THE CLERK'S ENTRY THEREOF ON THAT
DATE AS IN FACT AND IN LAW THE PRONOUNCEMENT AND ENTRY OF THE JUDGMENT
AND AS FIXING THE DATE FROM WHICH THE TIME FOR APPEAL RAN.  REVERSED. 
FN1  UNLESS OTHERWISE STATED, ALL REFERENCES HEREIN TO RULES ARE TO
THE FEDERAL RULES OF CIVIL PROCEDURE. 

FN2  THE FIRST CIRCUIT IN UNITED STATES V. HIGGINSON, 238 F.2D 439,
DECLINED TO FOLLOW THE SECOND CIRCUIT'S OPINION IN THE INSTANT CASE,
UNLESS THE LATTER MAY BE SAID TO REST UPON LOCAL RULE 10(A) OF THE
SOUTHERN AND EASTERN DISTRICTS OF NEW YORK, PROVIDING, IN PART, THAT A
"MEMORANDUM OF THE DETERMINATION OF A MOTION, SIGNED BY THE JUDGE,
SHALL CONSTITUTE THE ORDER," AND CONCLUDED:  "TO THE EXTENT THAT THE
LANGUAGE OF THE SCHAEFER OPINION MIGHT APPLY EVEN WHERE NO SUCH LOCAL
RULE EXISTS, THIS DECISION IS NOT IN ACCORD WITH IT."  ID., AT 443.  IN
ITS LATER CASE OF MATTESON V. UNITED STATES, 240 F.2D 517, THE SECOND
CIRCUIT MAKES CLEAR THAT IT REGARDS THE HIGGINSON OPINION AS IN
CONFLICT WITH ITS OPINION IN THE INSTANT CASE, SAYING:  "SINCE WE
VIEWED THE LOCAL RULE AS MERELY CORROBORATIVE OF THE PRACTICE ACTUALLY
REQUIRED BY F.R. 58, JUDGE HARTIGAN'S OPINION MUST BE TAKEN AS
DISAPPROVING OUR REASONING."  ID., AT 518. 

THE FOURTH CIRCUIT'S OPINION IN PAPANIKOLAOU V. ATLANTIC FREIGHTERS,
232 F.2D 663, ALSO APPEARS, IN RESULT AT LEAST, TO BE IN CONFLICT WITH
THE SECOND CIRCUIT'S OPINION IN THE INSTANT CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THIS CASE PRESENTS THE QUESTION WHETHER AN APPEAL BY THE GOVERNMENT
TO THE COURT OF APPEALS FROM A SUMMARY JUDGMENT RENDERED AGAINST IT WAS
TAKEN WITHIN THE SIXTY-DAY PERIOD ESTABLISHED BY RULE 73(A) OF THE
FEDERAL RULES OF CIVIL PROCEDURE.  ULTIMATELY DECISION TURNS ON THE
NEED FELT FOR NATION-WIDE UNIFORMITY IN THE DETAILED APPLICATION OF
RULES OF PROCEDURE WITHIN THE FEDERAL JUDICIAL SYSTEM, AS AGAINST
REGARD FOR LOCAL CONDITIONS AND EXPERIENCE IN THE DIFFERENT CIRCUITS IN
CONSTRUING RULES PHRASED IN BROAD AND FUNCTIONAL TERMS.  THOUGH NOT SO
FORMULATED BY THE COURT, THIS IS THE UNDERLYING QUESTION FOR DECISION,
FOR I CANNOT BELIEVE WE BROUGHT HERE FOR REVIEW A DISCRETE INSTANCE, A
PARTICULAR, NONRECURRING SET OF CIRCUMSTANCES, OR THAT WE WISH TO
ENCOURAGE PETITIONS FOR CERTIORARI TO REVIEW, FROM TIME TO TIME, OTHER
INDIVIDUAL SETS OF CIRCUMSTANCES.  THE ISSUES ON THE BASIS OF WHICH THE
GOVERNMENT SOUGHT REVIEW IN THIS CASE WERE SAID TO BE OF IMPORTANCE
BECAUSE THEY AFFECTED "ALL LITIGANTS IN THE FEDERAL COURTS." 

RESPONDENT TAXPAYER SUED TO RECOVER $7,189.57 IN STAMP TAXES, AN
AMOUNT SPECIFICALLY SET FORTH IN ITS COMPLAINT, ALLEGED TO HAVE BEEN
ILLEGALLY ASSESSED AND COLLECTED FROM IT, AND MOVED FOR SUMMARY
JUDGMENT.  ON APRIL 14, 1955, THE DISTRICT COURT FILED A "MEMORANDUM
DECISION" DIRECTED TO THE MOTION FOR SUMMARY JUDGMENT.  IN ITS OPINION
THE COURT, RELYING ON JUDGE LEIBELL'S DECISION IN UNITED STATES V.
NATIONAL SUGAR REFINING CO., 113 F. SUPP.  157, FOUND THAT THE TAX, IN
THE AMOUNT OF $7,189.57, HAD BEEN ILLEGALLY COLLECTED, AND CONCLUDED BY
STATING THAT, "I AM IN AGREEMENT WITH JUDGE LEIBELL'S ANALYSIS AND,
ACCORDINGLY, THE PLAINTIFF'S MOTION IS GRANTED."  130 F. SUPP. 322,
324.  ON THE SAME DAY THE CLERK MADE THE FOLLOWING ENTRY IN THE CIVIL
DOCKET:  "RAYFIEL, J. DECISION RENDERED ON MOTION FOR SUMMARY
JUDGMENT.  MOTION GRANTED.  SEE OPINION ON FILE." 

OVER A MONTH LATER, ON MAY 24, 1955, THE COURT SIGNED A PAPER,
SUBMITTED TO IT BY RESPONDENT, ENTITLED "JUDGMENT."  THIS DOCUMENT
RECITED THAT, RESPONDENT HAVING MOVED FOR SUMMARY JUDGMENT, AND THE
MOTION HAVING BEEN GRANTED ON APRIL 14, 1955, AND THE COURT'S OPINION
HAVING BEEN FILED, "IT IS ORDERED, ADJUDGED AND DECREED THAT THE
PLAINTIFF, THE F.&M. SCHAEFER BREWING CO., RECOVER OF THE DEFENDANT,
UNITED STATES OF AMERICA, THE SUM OF $7,189.57 AND INTEREST THEREON
FROM FEBRUARY 19, 1954 IN THE AMOUNT OF $542.80, TOGETHER WITH COSTS AS
TAXED BY THE CLERK OF THE COURT IN THE SUM OF $37, AGGREGATING THE SUM
OF $7,769.37, AND THAT PLAINTIFF HAVE JUDGMENT AGAINST DEFENDANT
THEREFOR."   ON THAT DAY THE CLERK MADE THE FOLLOWING ENTRY IN THE
DOCKET:  "RAYFIEL, J. JUDGMENT FILED AND DOCKETED AGAINST DEFENDANT IN
THE SUM OF $7189.57 WITH INTEREST OF $542.80 TOGETHER WITH COSTS $37
AMOUNTING IN ALL TO $7769.37.  BILL OF COSTS ATTACHED TO JUDGMENT." 

THE GOVERNMENT FILED ITS NOTICE OF APPEAL ON JULY 21, 1955, NINETY
EIGHT DAYS AFTER THE DECISION GRANTING THE MOTION FOR SUMMARY JUDGMENT,
AND FIFTY-EIGHT DAYS AFTER THE ENTRY OF THE FORMAL JUDGMENT OF MAY 24. 
THE COURT OF APPEALS FOR THE SECOND CIRCUIT, SIX JUDGES SITTING EN
BANC, UNANIMOUSLY DISMISSED THE APPEAL ON THE GROUND THAT THE NOTICE OF
APPEAL HAD NOT BEEN FILED WITHIN SIXTY DAYS FROM THE ENTRY OF JUDGMENT
AS REQUIRED BY RULE 73(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  THE
COURT FOUND THAT JUDGMENT HAD BEEN ENTERED ON APRIL 14, 1955, WHEN THE
MOTION FOR SUMMARY JUDGMENT WAS GRANTED, AND NOT ON MAY 24, 1955, WHEN
THE FORMAL "JUDGMENT" WAS DOCKETED. 

RULE 73(A) PROVIDES: 

"WHEN AN APPEAL IS PERMITTED BY LAW FROM A DISTRICT COURT TO A COURT
OF APPEALS THE TIME WITHIN WHICH AN APPEAL MAY BE TAKEN SHALL BE 30
DAYS FROM THE ENTRY OF THE JUDGMENT APPEALED FROM UNLESS A SHORTER TIME
IS PROVIDED BY LAW, EXCEPT THAT IN ANY ACTION IN WHICH THE UNITED
STATES OR AN OFFICER OR AGENCY THEREOF IS A PARTY THE TIME AS TO ALL
PARTIES SHALL BE 60 DAYS FROM SUCH ENTRY  ...  ." 

RULE 54(A) DEFINES A "JUDGMENT" AS: 

"A DECREE AND ANY ORDER FROM WHICH AN APPEAL LIES." 

RULE 58, ENTITLED "ENTRY OF JUDGMENT," PROVIDES THAT: 

"UNLESS THE COURT OTHERWISE DIRECTS AND SUBJECT TO THE PROVISIONS OF
RULE 54(B), JUDGMENT UPON THE VERDICT OF A JURY SHALL BE ENTERED
FORTHWITH BY THE CLERK; BUT THE COURT SHALL DIRECT THE APPROPRIATE
JUDGMENT TO BE ENTERED UPON A SPECIAL VERDICT OR UPON A GENERAL VERDICT
ACCOMPANIED BY ANSWERS TO INTERROGATORIES RETURNED BY A JURY PURSUANT
TO RULE 49.  WHEN THE COURT DIRECTS THAT A PARTY RECOVER ONLY MONEY OR
COSTS OR THAT ALL RELIEF BE DENIED, THE CLERK SHALL ENTER JUDGMENT
FORTHWITH UPON RECEIPT BY HIM OF THE DIRECTION; BUT WHEN THE COURT
DIRECTS ENTRY OF JUDGMENT FOR OTHER RELIEF, THE JUDGE SHALL PROMPTLY
SETTLE OR APPROVE THE FORM OF THE JUDGMENT AND DIRECT THAT IT BE
ENTERED BY THE CLERK.  THE NOTATION OF A JUDGMENT IN THE CIVIL DOCKET
AS PROVIDED BY RULE 79(A) CONSTITUTES THE ENTRY OF THE JUDGMENT; AND
THE JUDGMENT IS NOT EFFECTIVE BEFORE SUCH ENTRY.  THE ENTRY OF THE
JUDGMENT SHALL NOT BE DELAYED FOR THE TAXING OF COSTS." 

RULE 79(A) DESCRIBES THE CIVIL DOCKET MENTIONED IN RULE 58, AND GOES
ON TO DECLARE THAT: 

"ALL PAPERS FILED WITH THE CLERK, ALL PROCESS ISSUED AND RETURNS MADE
THEREON, ALL APPEARANCES, ORDERS, VERDICTS, AND JUDGMENTS SHALL BE
NOTED CHRONOLOGICALLY IN THE CIVIL DOCKET  ...  .  THESE NOTATIONS
SHALL BE BRIEF BUT SHALL SHOW THE NATURE OF EACH PAPER FILED OR WRIT
ISSUED AND THE SUBSTANCE OF EACH ORDER OR JUDGMENT OF THE COURT  ...
." 

THUS, BEFORE THE TIME FOR APPEAL BEGINS TO RUN UNDER RULE 73(A), A
JUDGMENT AS CONTEMPLATED IN RULE 58 MUST HAVE BEEN RENDERED BY THE
COURT AND, IN COMPLIANCE WITH RULE 79(A), ENTERED BY THE CLERK IN THE
CIVIL DOCKET.  THE JUDGMENT MUST HAVE BEEN BOTH PROPERLY RENDERED AND
PROPERLY ENTERED, AND THE ENTRY OF JUDGMENT IS THE DECISIVE PROCEDURAL
MOMENT.  IN THE PRESENT CASE THE QUESTION IS WHETHER THE MEMORANDUM
DECISION OF APRIL 14, 1955, WAS A "JUDGMENT" WITHIN THE MEANING OF THE
RULES, AND IF IT WAS, WHETHER THE CLERK'S DOCKET NOTATION OF THAT DATE
SHOWED THE "SUBSTANCE" OF THE JUDGMENT. 

THE RULES NOWHERE DEFINE WITH MECHANICAL EXACTITUDE THE MEANING OF
THE TERM "JUDGMENT."  RULE 54(A), HOWEVER, IN STATING THAT A JUDGMENT
INCLUDES "A DECREE AND ANY ORDER FROM WHICH AN APPEAL LIES," EMPHASIZES
THAT A JUDGMENT IS NOT CONFINED TO JUDICIAL ACTIONS SO DESCRIBED, BUT
INCLUDES ANY ACT OF THE COURT THAT PERFORMS THE FUNCTION OF A JUDGMENT
IN BRINGING LITIGATION TO ITS FINAL DETERMINATION.  RULE 58 IS
PERTINENT TO WHAT THAT FUNCTION IS AND IN DESCRIBING WHEN A JUDGMENT
SHALL BE ENTERED INDIRECTLY ILLUMINES WHAT A JUDGMENT IS WITHIN THE
CONTEMPLATION OF THE RULES.  THUS, WHEN A JURY RETURNS A GENERAL
VERDICT AND THERE HAVE BEEN NO INTERROGATORIES, JUDGMENT ON THE VERDICT
SHALL BE ENTERED FORTHWITH BY THE CLERK, WITHOUT FURTHER DIRECTION FROM
THE COURT.  WHEN THE CASE IS TRIED TO THE COURT AND THE RELIEF AWARDED
IS COMPLEX, THE COURT MUST APPROVE THE FORM OF THE JUDGMENT AND DIRECT
THAT IT BE ENTERED BY THE CLERK.  HOWEVER, WHEN THE COURT DIRECTS THAT
A PARTY RECOVER MONEY ONLY, AND THAT IS THE SITUATION IN THE PRESENT
CASE, OR THAT ALL RELIEF BE DENIED, THE CLERK IS TO ENTER JUDGMENT
FORTHWITH UPON RECEIPT OF THE DIRECTION. 

ONE THING IS CLEAR FROM A CLOSE READING OF THESE RULES IN THE LIGHT
OF THE GENERAL PURPOSE "TO SECURE THE JUST, SPEEDY, AND INEXPENSIVE
DETERMINATION OF EVERY ACTION."  FED.  RULES CIV. PROC., 1. 
SIMPLICITY AND SPEED, WHEN CONSONANT WITH EFFECTIVE PROTECTION OF THE
INTERESTS OF THE PARTIES, ARE TOUCHSTONES FOR THE INTERPRETATION OF ALL
THE RULES, ESPECIALLY THOSE STRATEGICALLY PLACED TO ADVANCE THE
LITIGATION TO ITS FINAL CONCLUSION.  THUS, AS REGARDS THE JUDGMENT
CONTEMPLATED BY RULE 73(A), NO FORMAL DOCUMENT STAMPED "JUDGMENT" IS
REQUIRED, AND THE DIRECTION THAT A PARTY RECOVER MONEY OR THAT ALL
RELIEF BE DENIED MAY BE INCLUDED IN AN INFORMAL MEMORANDUM, GIVEN AT
THE END OF A WRITTEN OPINION, OR EVEN DELIVERED ORALLY FROM THE BENCH. 
OF THE MANY DECISIONS IN THE COURTS OF APPEALS ON THIS QUESTION, NONE
HAS SUGGESTED THAT A JUDGMENT MUST BE EXPRESSED IN A FORMAL, AUTONOMOUS
DOCUMENT, AS IS REQUIRED BY THE CUMBERSOME, WASTEFUL PRACTICE IN SOME
STATES.  SUCH A REQUIREMENT WOULD CONTRADICT THE LIBERAL POLICY OF THE
FEDERAL RULES.  WE HAVE RECOGNIZED, EVEN IN A CRIMINAL CASE NOT
GOVERNED BY THESE RULES, THAT "NO FORM OF WORDS AND NO PECULIAR FORMAL
ACT IS NECESSARY TO EVINCE THE RENDITION OF A JUDGMENT  ...  OR TO
MATURE THE RIGHT OF APPEAL."  UNITED STATES V. HARK, 320 U.S. 531,
534.  THE FACT THAT BY RULE 58 THE COURT IS EXPRESSLY REQUIRED TO
APPROVE THE FORM OF THE JUDGMENT WHEN THE RELIEF GRANTED IS MORE
COMPLEX THAN MONEY OR COSTS IS SURELY CONVINCING THAT WHEN ONLY MONEY
OR COSTS ARE AWARDED THERE IS NO SUCH REQUIREMENT. 

THE 1946 AMENDMENT TO RULE 58 UNDERSCORED THE PURPOSE NOT TO REQUIRE
FROM THE COURT A PARTICULAR FORMAL ACT OR AN EXPLICIT DIRECTION THAT
JUDGMENT BE ENTERED.  THE RULE HAD PROVIDED THAT:  "WHEN THE COURT
DIRECTS THE ENTRY OF A JUDGMENT THAT A PARTY RECOVER ONLY MONEY OR
COSTS OR THAT THERE BE NO RECOVERY, THE CLERK SHALL ENTER JUDGMENT
FORTHWITH UPON RECEIPT BY HIM OF THE DIRECTION  ...  ."  308 U.S. 737. 
IT WAS AMENDED TO READ:  "WHEN THE COURT DIRECTS THAT A PARTY RECOVER
ONLY MONEY OR COSTS OR THAT ALL RELIEF BE DENIED, THE CLERK SHALL ENTER
JUDGMENT FORTHWITH UPON RECEIPT BY HIM OF THE DIRECTION  ...  ."  329
U.S. 863.  ACCORDING TO THE NOTES OF THE ADVISORY COMMITTEE, "THE
SUBSTITUTION OF THE MORE INCLUSIVE PHRASE 'ALL RELIEF BE DENIED' FOR
THE WORDS 'THERE BE NO RECOVERY', MAKES IT CLEAR THAT THE CLERK SHALL
ENTER THE JUDGMENT FORTHWITH IN THE SITUATIONS SPECIFIED WITHOUT
AWAITING THE FILING OF A FORMAL JUDGMENT APPROVED BY THE COURT."  28
U.S.C., P. 4343.  MOREOVER, THE ELIMINATION OF THE WORDS "THE ENTRY OF
A JUDGMENT" MADE IT CLEAR THAT IT IS THE DIRECTION TO RECOVER THAT IS
THE ESSENTIAL ACT, AND NOT A DIRECTION EXPLICITLY TO ENTER JUDGMENT OR
A DIRECTION FRAMED IN ANY PARTICULAR MANNER. 

OF COURSE THE COURT MAY, IN THE EXERCISE OF ITS CONTROL OVER THE
SHAPE OF THE JUDGMENT AND THE TIME OF ITS RENDITION, INDICATE THAT NO
JUDGMENT WILL BE RENDERED UNTIL A FORMAL DOCUMENT IS DRAWN UP,
APPROVED, AND SIGNED.  THE RULES THEMSELVES RECOGNIZE THAT IN MANY
CASES, ACCORDING TO THE RELIEF AWARDED, THE CAREFUL FORMULATION OF A
SEPARATE JUDGMENT MAY BE INDISPENSABLE TO THE PROPER DISPOSITION OF THE
LITIGATION.  MOREOVER, A FORMAL DOCUMENT EVIDENCING THE JUDGMENT MAY IN
SOME CIRCUMSTANCES BE NECESSARY FOR EXECUTION, FOR REGISTRATION UNDER
STATE LAW, OR FOR DIVERS PURPOSES UNRELATED TO THE TAKING OF AN
APPEAL.  IN THE PRESENT CASE, FOR EXAMPLE, THE GOVERNMENT STATES THAT,
UNDER TREASURY DEPARTMENT PROCEDURES, RESPONDENT COULD NOT HAVE SECURED
PAYMENT OF THE JUDGMENT WITHOUT SUBMITTING A CERTIFIED COPY STATING THE
PRECISE AMOUNT OF THE JUDGMENT PLUS INTEREST AND COSTS.  BUT THESE
REQUIREMENTS, ADMITTING THEIR RELEVANCE TO THE PARTICULAR PURPOSES FOR
WHICH THEY ARE DESIGNED, DO NOT JUSTIFY ERODING AN IMPORTANT FEDERAL
PROCEDURAL POLICY IN FAVOR OF SPEED AND SIMPLICITY IN TAKING APPEALS BY
DEMANDING THAT BECAUSE THE DEFINITIVE ADJUDICATION OF A CLAIM MUST BE
IN A PARTICULAR FORM FOR A PARTICULAR PURPOSE IT MUST BE SO FOR ALL. 

WHAT IS REQUIRED UNDER RULE 73(A) IS ACTION BY THE COURT THAT CLEARLY
INDICATES THAT THE ISSUES PRESENTED BY THE LITIGATION HAVE BEEN
ADJUDICATED, AND THAT THE DECISION IS WHOLLY COMPLETED AND NOT
DEPENDENT ON FURTHER ACTION BY THE COURT.  FURTHERMORE, SINCE THE
PARTIES MUST BE IN A POSITION TO MAKE AN INTELLIGENT CHOICE WHETHER OR
NOT TO APPEAL, THE COURT MUST INFORM THEM NOT ONLY THAT IT HAS DECIDED
THE CASE, BUT WHAT IT HAS DECIDED.  IN ASSESSING THE COURT'S ACTION TO
DETERMINE WHETHER THESE REQUIREMENTS HAVE BEEN MET AND A JUDGMENT HAS
BEEN RENDERED WITHIN THE MEANING OF RULE 73(A), AN APPELLATE COURT
NATURALLY LOOKS TO THE IMPORT OF THE TRIAL COURT'S ACTION AS IT MUST
REASONABLY HAVE APPEARED TO THE PARTIES.  CERTAINTY THAT THE COURT HAS
IN FACT RENDERED AN APPEALABLE JUDGMENT IS OF COURSE A VITAL
CONSIDERATION, SO THAT MERITORIOUS APPEALS MAY NOT BE LOST THROUGH
INADVERTENCE.  SURELY SUCH CERTAINTY CAN BE ATTAINED BY DIRECTING TRIAL
JUDGES TO EXPLICITNESS IN DECISION AND EXPRESSION WITHOUT INSISTING ON
ARCHAIC FORMALITIES THAT POINTLESSLY DELAY THE COURSE OF THE
LITIGATION.  AS CHIEF JUDGE CLARK HAS INDICATED IN AN OPINION FOLLOWING
THE DECISION IN THE PRESENT CASE, APPELLATE RULES SHOULD NOT BE
"ADJUSTED TO ACCOMMODATE CARELESSNESS, AT COST OF  ... SERIOUS LOSSES
IN EFFECTIVE COURT PROCEDURE  ...  ."  MATTESON V. UNITED STATES, 240
F.2D 517, 519.    IT IS READILY APPARENT THAT THESE CRITERIA SET ONLY
VERY BROAD LIMITS ON THE INTERPRETATION OF JUDICIAL ACTION AND THAT
CONSIDERABLE SCOPE IS LEFT FOR VARIATION ACCORDING TO LOCAL CUSTOM AND
PRACTICE, PROPERLY SO IN A COUNTRY AS DIVERSIFIED AND VAST AS OURS.  IN
THIS REGARD THE JUDGMENT IN UNITED STATES V. HARK, 320 U.S. 531, SUPRA,
A CRIMINAL CASE INVOLVING AN APPEAL DIRECT TO THIS COURT UNDER THE
CRIMINAL APPEALS ACT, NOW 18 U.S.C. SEC. 3731, IS NOT SIGNIFICANTLY
DIFFERENT FROM A JUDGMENT UNDER THE FEDERAL RULES OF CIVIL PROCEDURE. 
THERE THE DISTRICT COURT RENDERED AN OPINION GRANTING THE DEFENDANTS'
MOTION TO QUASH THE INDICTMENT, AND SOME WEEKS LATER SIGNED A FORMAL
ORDER TO THE SAME EFFECT.  THIS COURT CONCLUDED THAT THE FORMAL ORDER
RATHER THAN THE EARLIER OPINION WAS THE JUDGMENT OF THE COURT WITHIN
THE MEANING OF THE STATUTE, AND THAT THE APPEAL FROM IT WAS TIMELY. 
THIS CONCLUSION WAS REACHED, HOWEVER, ONLY AFTER FINDING THAT THE
CUSTOMARY PRACTICE IN THE DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS, FROM WHICH THE APPEAL HAD COME, WAS TO ISSUE A FORMAL
ORDER QUASHING AN INDICTMENT AND TO REGARD IT AS THE JUDGMENT.  THE
COURT EXPRESSLY REFUSED, BECAUSE OF THE DIVERSITY OF PRACTICE IN THE
LOWER COURTS, TO LAY DOWN A "HARD AND FAST RULE" THAT WHEN A FORMAL
JUDGMENT IS FILED IT MUST NECESSARILY BE REGARDED AS THE JUDGMENT FOR
PURPOSES OF APPEAL.  IN SAYING THAT A FORMAL JUDGMENT IS PRIMA FACIE
THE JUDGMENT OF THE COURT, WE MADE IT CLEAR THAT THIS PRESUMPTION COULD
BE OVERCOME BY A SHOWING OF LOCAL PRACTICE TO THE CONTRARY. 

IN COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF BEDFORD, 325 U.S.
283, A CASE INVOLVING THE TIMELINESS OF A PETITION FOR CERTIORARI FOR
REVIEW IN THIS COURT OF A JUDGMENT OF A COURT OF APPEALS, WE FOUND THAT
BY COMMON UNDERSTANDING AND LONG-CONTINUED PRACTICE IN THE COURT OF
APPEALS, THE FORMAL ORDER OF MANDATE RATHER THAN THE OPINION WAS
REGARDED AS THE JUDGMENT OF THE COURT.  THE COURT RESPECTED THIS
PRACTICE BECAUSE, AS WE SAID, "WHETHER THE ANNOUNCEMENT OF AN OPINION
AND ITS ENTRY IN THE DOCKET AMOUNTS TO A JUDGMENT FOR PURPOSES OF
APPEAL OR WHETHER THAT MUST AWAIT SOME LATER FORMAL ACT, OUGHT NOT TO
BE DECIDED ON NICE-SPUN ARGUMENTATION IN DISREGARD OF THE JUDICIAL
HABITS OF THE COURT WHOSE JUDGMENT IS CALLED INTO QUESTION, OF THE BAR
PRACTISING BEFORE IT, OF THE CLERK WHO EMBODIES ITS PROCEDURAL
TRADITIONS, AS WELL AS IN CONFLICT WITH THE ASSUMPTION OF THE REVIEWING
COURT."  325 U.S., AT 287-288.  PROCEDURAL REQUIREMENTS WITHIN THE
FEDERAL JUDICIAL SYSTEM ARE NOT TO BE FITTED TO A PROCRUSTEAN BED.  TO
THE EXTENT THAT THE FEDERAL RULES CLEARLY CONTEMPLATE A CERTAIN MANNER
OF DOING THINGS, OF COURSE SUCH EXPLICITNESS MUST BE RESPECTED.  BUT
WHEN THE RULES DO NOT SO REQUIRE, AND THE SUBJECT IS ONE INTIMATELY
ASSOCIATED WITH LOCAL PRACTICE AND CUSTOM AND ADEQUATELY DEALT WITH ON
THAT BASIS, LAYALTY TO THE RULES PRECLUDES IMPOSITION OF UNIFORMITY
MERELY FOR ITS OWN SAKE. 

IN THE SECOND CIRCUIT A DECISION OF A DISTRICT COURT, WHEN IT IS A
COMPLETE, CLEAR, AND FINAL ADJUDICATION, IS DEEMED THE JUDGMENT OF THE
COURT, EVEN THOUGH A LATER, FORMAL JUDGMENT IS SIGNED AND FILED AT THE
INSTANCE OF ONE OF THE PARTIES.  WE HAVE THE WORD OF A UNANIMOUS COURT
OF APPEALS FOR THIS.  MOREOVER, WE HAVE THE DECISIONS OF THAT COURT
OVER A NUMBER OF YEARS CONSISTENTLY ENFORCING, WITHOUT DISSENT, THE
PRACTICE TO WHICH IT ADHERES IN THE PRESENT CASE.  SO ACTIVE A LITIGANT
AS THE GOVERNMENT COULD HARDLY HAVE BEEN UNAWARE THAT SUCH WAS IN FACT
THE GOVERNING PRACTICE IN THE APPLICATION OF RULE 73(A).  THE RULE WHEN
FIRST SQUARELY STATED IN UNITED STATES V. WISSAHICKON TOOL WORKS, INC.,
200 F.2D 936, 938, REFLECTED A POSITION TAKEN IN A LINE OF EARLIER
AUTHORITIES, (FN1) AND IT HAS SINCE BEEN REPEATED WITH INCREASING
EMPHASIS AND CLARITY.  (FN2)  THAT COURT HAS CONTINUALLY ADMONISHED THE
DISTRICT COURTS TO BE CLEAR AND EXPLICIT IN THEIR ADJUDICATIONS SO THAT
CERTAINTY WILL NOT BE SACRIFICED AND LITIGANTS CONFUSED, BUT NO LESS
HAS IT BEEN CONCERNED, BECAUSE OF THE VOLUME OF LITIGATION IN THE
COURTS OF THAT HARRIED CIRCUIT AND THE WIDESPREAD CRITICISM OF THE
LAW'S DELAYS, TO FORMULATE AND ENFORCE PROCEDURES THAT BY THEIR SPEED
AND SIMPLICITY WILL BEST EXPEDITE CASES TO A FINAL DETERMINATION. 

IF THE DECISION OF A DISTRICT COURT IS, STANDING ALONE, A CLEAR AND
FINAL ADJUDICATION OF THE CASE, AND AT THE TIME RENDERED SUFFICIENT TO
GIVE NOTICE OF THE RUNNING OF THE TIME FOR APPEAL, THE COURT OF APPEALS
HAS REFUSED TO REASSESS ITS SIGNIFICANCE IN THE LIGHT OF A LATER FORMAL
JUDGMENT.  TO GIVE WEIGHT TO THE FILING OF THE FORMAL JUDGMENT IN THIS
SITUATION, THAT COURT HAS FOUND, WOULD INCREASE RATHER THAN DIMINISH
UNCERTAINTY AND CONFUSION, SINCE THE LEGAL EFFECT OF THE FIRST DECISION
WOULD VARY DEPENDING ON THE CHANCE, OFTEN WITHIN THE CONTROL OF THE
PARTIES AS MUCH AS THE COURT, THAT MORE FORMAL ACTION IS TAKEN LATER. 
THE TEMPTATION WOULD BE TOO GREAT TO PRESENT A FORMAL JUDGMENT FOR THE
COURT'S APPROVAL SIMPLY TO CAST DOUBT ON THE FINALITY OF THE EARLIER
ACTION, AND THUS IMPROPERLY TO EXTEND THE TIME FOR APPEAL.  ALTHOUGH IN
OTHER CIRCUITS A CONTRARY POSITION APPEARS TO HAVE BEEN TAKEN AND
WEIGHT IS GIVEN TO THE LATER FILING OF A FORMAL JUDGMENT, E.G., UNITED
STATES V. HIGGINSON, 238 F.2D 439, 441-443 (C.A. 1ST CIR.), IT CANNOT
BE SAID THAT THE VIEW ADOPTED BY THE SECOND CIRCUIT IS WITHOUT REASON
OR INAPPROPRIATE TO THE NEEDS AND PRACTICALITIES OF LITIGATION IN THAT
CIRCUIT.  (FN3)  IN VIEW OF THE VARYING PROBLEMS IN DIFFERENT CIRCUITS,
WE SHOULD, IN THIS MATTER, LEAVE TO A COURT OF APPEALS A CONSIDERABLE
MEASURE OF FREEDOM TO INTERPRET AND FORM THE PRACTICE IN THE DISTRICT
COURTS IN THE LIGHT OF ITS EXPERIENCE WITH THE PROCEDURAL RELATIONS
BETWEEN ITSELF AND THOSE COURTS. 

IF THE GENERAL RULE OF PRACTICE AND INTERPRETATION IN THE SECOND
CIRCUIT IS NOT IN CONFLICT WITH THE FEDERAL RULES OF CIVIL PROCEDURE,
IT IS ALSO NOT UNREASONABLE AS APPLIED IN THE PRESENT CASE.  THE
OPINION OF THE DISTRICT COURT CLEARLY INFORMED THE PARTIES THAT
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT WAS GRANTED, AND NOTHING IN
THE LANGUAGE OF THE COURT REMOTELY SUGGESTED THAT ANY FORMAL JUDGMENT
OR FURTHER ACTION BY THE COURT WAS CONTEMPLATED OR NECESSARY FOR
FINALITY OF ADJUDICATION.  THE AMOUNT OF THE JUDGMENT WAS THE AMOUNT,
PLUS INTEREST AND COSTS, OF THE TAX ILLEGALLY ASSESSED AND COLLECTED,
AND THIS AMOUNT WAS RECITED IN THE OPINION AS AN AGREED FACT.  RULE 58
SPECIFICALLY PROVIDES THAT THE ENTRY OF JUDGMENT SHALL NOT BE DELAYED
FOR THE TAXING OF COSTS, AND SINCE THE DATE OF THE PAYMENT OF THE TAX
WAS NOT IN DISPUTE, THE INTEREST DUE WAS A SIMPLE, MATHEMATICALLY
ASCERTAINABLE ITEM, AND THE FAILURE TO STATE IT EXPLICITLY IN THE
OPINION NEITHER QUALIFIED NOR DELAYED THE DEFINITIVE ASPECT OF THE
JUDGMENT. 

THE COURT ITSELF RECOGNIZES THAT A "JUDGMENT" FOR THE PURPOSES OF
APPEAL IS NO MORE THAN AN ACTION BY THE COURT THAT FINALLY AND
COMPLETELY ADJUDICATES THE ISSUES PRESENTED BY THE LITIGATION, AND THAT
ULTIMATELY THE QUESTION IS ONE OF ASCERTAINING THE INTENTION OF THE
DISTRICT COURT IN A GIVEN CASE.  NEVERTHELESS, THE COURT REVERSES THE
UNANIMOUS DETERMINATION OF THE COURT OF APPEALS ON THIS QUESTION, AND
IT APPEARS TO REST THIS UNUSUAL ACTION ON THE SLENDER REED THAT THE
OPINION OF THE DISTRICT COURT FAILED TO SHOW ON ITS FACE THE AMOUNT OF
THE INTEREST.  IN JUDGING WHETHER THE DISTRICT COURT INTENDED TO MAKE A
FINAL DISPOSITION OF THE CASE, THE COURT OF APPEALS SURELY WAS CORRECT
IN CONCLUDING THAT THIS TRIVIAL CIRCUMSTANCE WAS MORE THAN OUTWEIGHED
BY THE OTHER CIRCUMSTANCES OF THE CASE. 

THERE MAY BE CASES IN WHICH THE TRIAL COURT'S DECISION IS
INCONCLUSIVE AND AMBIGUOUS AS TO WHETHER FURTHER ACTION IS
CONTEMPLATED, OR IT MAY BE IMPOSSIBLE TO DETERMINE THE PRACTICAL EFFECT
OF THE JUDGMENT WITHOUT COMPLICATED COMPUTATIONS OR INFORMATION NOT
AVAILABLE AT THE TIME THE COURT RENDERS ITS DECISION.  BUT THE PRESENT
CASE IS NOT ONE OF THESE.  THE DIFFERENT CONSIDERATIONS SUCH CASES
PRESENT DO NOT JUSTIFY US IN STRIKING DOWN A REASONABLE PROCEDURAL RULE
RELEVANTLY APPLIED.  NOR IS IT MATERIAL THAT IN THIS CASE IT WAS
RESPONDENT ITSELF THAT SUBMITTED FOR THE COURT'S APPROVAL THE FORMAL
JUDGMENT OF MAY 24TH.  WHEN THE MOTION FOR SUMMARY JUDGMENT WAS GRANTED
ON APRIL 14TH AND A FINAL JUDGMENT RENDERED ACCORDING TO THE
ESTABLISHED PRACTICE IN THE SECOND CIRCUIT, THE TIME FOR APPEAL
COMMENCED TO RUN AUTOMATICALLY BY FORCE OF RULE 73(A).  THE FACT THAT
THE COURT OR EITHER OF THE PARTIES LATER PROCEEDED ON THE ASSUMPTION
THAT FURTHER ACTION WAS NECESSARY OR DESIRABLE TO OBTAIN A JUDGMENT, OR
FOR WHATEVER REASON, COULD IN NO WAY ENLARGE THE TIME WITHIN WHICH TO
INVOKE THE JURISDICTION OF THE APPELLATE COURT.  SUCH ACTION COULD NOT
PREVENT EITHER RESPONDENT OR THE COURT OF APPEALS FROM INSISTING ON THE
FINALITY OF THE DISTRICT COURT'S FIRST DECISION. 

WHAT HAS BEEN SAID IN REGARD TO THE RENDERING OF JUDGMENT APPLIES
EQUALLY TO THE ENTRY OF JUDGMENT ON THE CIVIL DOCKET.  RULE 79(A)
REQUIRES THAT THE NOTATION ON THE DOCKET BE BRIEF BUT SHOW THE
"SUBSTANCE" OF THE JUDGMENT RENDERED.  "SUBSTANCE" IN THIS CONTEXT IS
NOT A TERM OF ARISTOTELIAN METAPHYSICS; IT HAS NO MEANING APART FROM
THE REALITIES OF CUSTOM AND PRACTICE AND ADEQUACY OF NOTICE TO THOSE
WHOSE CONDUCT IS GOVERNED BY THE DOCKET ENTRIES AND THE INFORMATION
THEY REASONABLY CONVEY.  SUCH A PRACTICAL READING OF THE RULE DOES NOT,
CONTRARY TO THE GOVERNMENT'S CONTENTION, RENDER NUGATORY THE
REQUIREMENT THAT THE SUBSTANCE OF THE JUDGMENT BE SHOWN, BUT PROPERLY
INTERPRETS THAT REQUIREMENT IN TERMS OF THE PURPOSE FOR WHICH IT WAS
DESIGNED. 

THE DOCKET ENTRY IN THE PRESENT CASE RECITED THAT THE MOTION FOR
SUMMARY JUDGMENT HAD BEEN GRANTED, AND REFERRED TO THE COURT'S OPINION
ON FILE.  THE OPINION IN TURN TOLD OF THE AMOUNT OF THE JUDGMENT. 
SURELY WE CANNOT SAY, ON A QUESTION SO RELATED TO LOCAL CUSTOM AND
UNDERSTANDING, THAT THE COURT OF APPEALS ERRED IN FINDING THIS
SUFFICIENT NOTICE TO THE PARTIES THAT THE CASE HAD BEEN DECIDED AND HOW
IT HAD BEEN DECIDED.  THE DOCKET ENTRY STANDING ALONE WOULD DOUBTLESS
CONVEY LITTLE TO A STRANGER TO THE LITIGATION.  TO THOSE FAMILIAR WITH
THE CASE, HOWEVER, AND ATTENTIVE TO THE QUESTION OF APPEAL, IT
COMPREHENSIVELY CONVEYED THE VITAL INFORMATION NECESSARY TO PROTECT
THEIR INTERESTS.  THE USE OF THE WORD "JUDGMENT," OR THE RECITAL OF THE
AMOUNT OF THE JUDGMENT IN THE DOCKET AS WELL AS IN THE OPINION WOULD
HAVE DONE NO MORE, AND A FLAT RULE THAT SUCH RECITALS MUST BE INCLUDED
WOULD CONVERT RULE 79(A) FROM A COMMON-SENSE DIRECTION TO MAINTAIN A
DOCKET USEFUL TO THE COURT, THE CLERK, AND INTERESTED PARTIES, INTO A
DEMAND FOR POINTLESS TECHNICALITIES THAT ULTIMATELY MIGHT WELL
SERIOUSLY INCONVENIENCE THEM.  IF THE AMOUNT OF THE JUDGMENT MUST
NECESSARILY APPEAR IN THE DOCKET, SO ALSO, IT CAN BE ARGUED, MUST THE
TERMS OF AN INJUNCTION, THE SUBSTANCE OF THAT JUDGMENT; BUT BY SUCH
INCLUSIONS THE USEFULNESS OF THE DOCKET AS AN INDEX AND BRIEF HISTORY
OF THE PROCEEDINGS WOULD BE SUBSTANTIALLY IMPAIRED IF NOT DEFEATED. 

IT MUST BE REMEMBERED THAT THE PROBLEM BEFORE US CONCERNS NOT THE
NICETIES OF ABSTRACT LOGIC OR LEGAL SYMMETRY, BUT THE PRACTICALITIES OF
LITIGATION AND JUDICIAL ADMINISTRATION IN THE FEDERAL COURTS OF NEW
YORK, CONNECTICUT, AND VERMONT, COMPRISING THE SECOND CIRCUIT. 
DOUBTLESS THE FEDERAL RULES OF CIVIL PROCEDURE, INSOFAR AS THEY GOVERN
THE TIME FOR TAKING APPEALS, MUST BE OBSERVED THROUGHOUT THE COUNTRY BY
ALL ELEVEN COURTS OF APPEALS.  BUT SINCE THE RULES DO NOT LAY DOWN SELF
DEFINING SPECIFICATIONS OR MECHANICALLY ENFORCEABLE DETAILS ON MANY
MATTERS, INCLUDING THE RENDITION AND ENTRY OF JUDGMENTS, DOES DUE
REGARD FOR THE RULES REQUIRE MORE THAN OBEDIENCE TO THE FUNCTIONAL
PURPOSES THEY EXPRESS?  DOES THEIR OBSERVANCE NECESSARILY IMPLY A
NATION-WIDE UNIFORMITY IN THEIR FORMAL APPLICATION?  WE HAVE FOR REVIEW
THE PRACTICAL CONSTRUCTION GIVEN TO RULE 73(A) BY A COURT OF APPEALS
WITH AS LARGE A VOLUME OF BUSINESS AS ANY.  BY THIS PRACTICE THE
APPELLATE JURISDICTION OF THAT COURT HAS BEEN GUIDED FOR SOME YEARS,
AND IT HAS BEEN APPROVED BY EVERY APPELLATE JUDGE IN THE CIRCUIT WHO
HAS HAD OCCASION TO CONSIDER THE QUESTION.  THE MEMBERSHIP OF THE COURT
OF APPEALS REFLECTS THE EXPERIENCE OF JUDGES AMONG THOSE OF LONGEST
EXPERIENCE IN OUR JUDICIARY, BOTH ON THE DISTRICT COURTS AND THE COURTS
OF APPEALS, JUDGES WHO HAVE HAD EXTENSIVE EXPERIENCE AT THE BAR BOTH IN
PRIVATE AND PUBLIC LITIGATION, AND JUDGES OF SPECIAL COMPETENCE IN THE
DOMAIN OF PROCEDURE.  (FN4)  A RULE OF PROCEDURE AUTHENTICATED BY SUCH
A WEIGHTY CERTIFICATE OF LEGITIMACY SHOULD NOT BE NULLIFIED OUT OF
REGARD FOR CONSIDERATIONS OF ELEGANTIA JURIS.  CERTAINLY WE SHOULD NOT
UPSET IT UNLESS COMPELLED TO DO SO BY THE CLEAR REQUIREMENTS OF
UNAMBIGUOUS LEGISLATION OR THE ENFORCEMENT OF UNASSAILABLE EVEN IF
IMPLICIT STANDARDS FOR THE FAIR ADMINISTRATION OF JUSTICE. 

I WOULD AFFIRM THE JUDGMENT. 

FN1  SEE LEONARD V. PRINCE LINE, LTD., 157 F.2D 987, 989; MURPHY V.
LEHIGH VALLEY R. CO., 158 F.2D 481, 484-485; BINDER V. COMMERCIAL
TRAVELERS MUT. ACC.  ASSN., 165 F.2D 896, 901; MARKERT V. SWIFT & CO.,
173 F.2D 517, 519, N. 2.    FN2  UNITED STATES V. ROTH, 208 F.2D 467;
NAPIER V. DELAWARE, L.&W.R. CO., 223 F.2D 28; MATTESON V. UNITED
STATES, 240 F.2D 517; EDWARDS V. DOCTORS HOSPITAL, INC., 242 F.2D 888;
REPAN V. AMERICAN PRESIDENT LINES, LTD., 243 F.2D 876. 

FN3  IN ITS OPINION IN THE PRESENT CASE THE COURT OF APPEALS INVOKES
NOT ONLY THE FEDERAL RULES OF CIVIL PROCEDURE AND ITS OWN CAREFULLY
FORMULATED VIEWS ON THE RENDITION OF JUDGMENT AS UNDERSTOOD IN THOSE
RULES, BUT ALSO RULE 10(A) OF THE SOUTHERN AND EASTERN DISTRICTS OF NEW
YORK.  THIS RULE PROVIDES THAT, "A MEMORANDUM OF THE DETERMINATION OF A
MOTION, SIGNED BY THE JUDGE, SHALL CONSTITUTE THE ORDER, BUT NOTHING
HEREIN CONTAINED SHALL PREVENT THE COURT FROM MAKING AN ORDER, EITHER
ORIGINALLY OR ON AN APPLICATION FOR RESETTLEMENT, IN MORE EXTENDED
FORM."  HOWEVER, IN MATTESON V. UNITED STATES, 240 F.2D 517, FOLLOWING
THE DECISION IN THE PRESENT CASE, THE COURT OF APPEALS EXPLAINED THAT
IT "VIEWED THE LOCAL RULE AS MERELY CORROBORATIVE OF THE PRACTICE
ACTUALLY REQUIRED BY F.R. 58  ...  ."  240 F.2D, AT 518. 

FN4  THE COURT SITTING ON THE PRESENT CASE INCLUDED: 

CHIEF JUDGE CLARK - 6 YEARS' PRIVATE PRACTICE, 19 YEARS ON THE COURT
OF APPEALS, 21 YEARS MEMBER OF THE ADVISORY COMMITTEE ON THE FEDERAL
RULES OF CIVIL PROCEDURE. 

JUDGE FRANK - 22 YEARS' PRIVATE PRACTICE, 6 YEARS' FEDERAL
ADMINISTRATIVE SERVICE, 16 YEARS ON THE COURT OF APPEALS. 

JUDGE MEDINA - 35 YEARS' PRIVATE PRACTICE, 4 YEARS ON THE DISTRICT
COURT, 7 YEARS ON THE COURT OF APPEALS. 

JUDGE HINCKS - 14 YEARS' PRIVATE PRACTICE, 22 YEARS ON THE DISTRICT
COURT, 5 YEARS ON THE COURT OF APPEALS. 

JUDGE LUMBARD - 21 YEARS' PRIVATE PRACTICE, 6 YEARS IN THE UNITED
STATES ATTORNEY'S OFFICE, 3 YEARS ON THE COURT OF APPEALS. 

JUDGE WATERMAN - 29 YEARS' PRIVATE PRACTICE, 3 YEARS ON THE COURT OF
APPEALS. 

OTHER JUDGES WHO SAT IN UNITED STATES V. WISSAHICKON TOOL WORKS,
INC., 200 F.2D 936, SUPRA, OR THE CASES CITED IN NOTE 2 WERE: 

JUDGE LEARNED HAND - 12 YEARS' PRIVATE PRACTICE, 15 YEARS ON THE
DISTRICT COURT, 27 YEARS ON THE COURT OF APPEALS AT RETIREMENT. 

JUDGE AUGUSTUS N. HAND - 19 YEARS' PRIVATE PRACTICE, 13 YEARS ON THE
DISTRICT COURT, 26 YEARS ON THE COURT OF APPEALS AT RETIREMENT. 

JUDGE SWAN - 13 YEARS' PRIVATE PRACTICE, 26 YEARS ON THE COURT OF
APPEALS AT RETIREMENT. 

JUDGE CHASE - 7 YEARS' PRIVATE PRACTICE, 10 YEARS ON STATE COURTS, 25
YEARS ON THE COURT OF APPEALS AT RETIREMENT. 

MR. JUSTICE HARLAN, DISSENTING. 

THE EFFORT WHICH HAS GONE INTO THIS CASE HAS AT LEAST ENDED HAPPILY
FROM THE POINT OF VIEW OF PRESERVING THE INTEGRITY OF THOSE PROVISIONS
OF THE FEDERAL RULES OF CIVIL PROCEDURE BEARING ON THE TIMELINESS OF
APPEALS.  THE COURT'S OPINION, AND THE DISSENT OF MR. JUSTICE
FRANKFURTER WHICH I HAVE JOINED, ARE AT ONE ON THE BASIC ISSUE, NAMELY,
THAT ENTRY OF A FORMAL JUDGMENT IS NOT NECESSARY TO START THE TIME FOR
APPEAL RUNNING, AND ALSO AGREE THAT THE DETERMINATIVE QUESTION IN ANY
GIVEN CASE IS WHETHER THE DISTRICT COURT INTENDED ITS DECISION ON THE
MERITS TO BE A FINAL DISPOSITION OF THE MATTER.  AFTER AN EN BANC COURT
OF APPEALS HAD DECIDED THAT THE DISTRICT COURT IN THIS INSTANCE DID
INTEND TO MAKE A FINAL DISPOSITION OF THE CASE, I SHOULD HAVE THOUGHT
THIS COURT WOULD HAVE CONSIDERED IT THE BETTER COURSE TO AFFIRM THE
JUDGMENT BELOW, WITH AN APPROPRIATE SUGGESTION TO DISTRICT JUDGES TO
LEAVE NO ROOM FOR ARGUMENT ABOUT THEIR INTENTIONS RESPECTING FINALITY,
RATHER THAN TO REVERSE THE COURT OF APPEALS ON WHAT WAS ESSENTIALLY AN
ISSUE OF FACT. 

EVEN SO, THE COURT'S ACTION PERHAPS HAS A SILVER LINING, FOR I
DARESAY IT WILL STIMULATE DISTRICT JUDGES TO BE MORE AT PAINS IN THE
FUTURE, CF. MATTESON V. UNITED STATES, 240 F.2D 517, 518, TO GIVE IN
THEIR OPINIONS IN THESE "MONEY" CASES AN AFFIRMATIVE INDICATION OF
INTENTION REGARDING THE FINALITY OR NONFINALITY OF THEIR DECISIONS.  IF
SUCH IS THE EFFECT OF THIS DECISION, IT WILL BE A HEALTHY THING, FOR
SURELY SUCH A COMMONPLACE AFFAIR AS THE TIME FOR APPEAL SHOULD NOT BE
PERMITTED TO BREED LITIGATION. 
..END :























GRIMES V. RAYMOND CONCRETE PILE CO. 356 U.S. 252 


NO. 456.  ARGUED MARCH 10, 1958 - DECIDED APRIL 7, 1958 - 245 F.2D 437,
REVERSED AND CASE REMANDED. 


PETITIONER SUED RESPONDENTS UNDER THE JONES ACT FOR DAMAGES FOR
INJURIES SUSTAINED WHILE BEING TRANSFERRED AT SEA FROM A TUG TO A
"TEXAS TOWER" BEING SECURED TO THE OCEAN BED AT ITS ULTIMATE LOCATION
AS A RADAR WARNING STATION.  THE DISTRICT COURT INDICATED THAT THE
EVIDENCE CREATED A FACT QUESTION AS TO WHETHER HE WAS A MEMBER OF THE
CREW OF ANY VESSEL, BUT DIRECTED A VERDICT FOR RESPONDENTS ON THE
GROUND THAT PETITIONER'S EXCLUSIVE REMEDY WAS UNDER THE DEFENSE BASES
ACT.  THE COURT OF APPEALS HELD THAT THE DEFENSE BASES ACT DID NOT
PROVIDE THE EXCLUSIVE REMEDY FOR A CREW MEMBER; BUT IT AFFIRMED THE
DISTRICT COURT'S JUDGMENT ON THE GROUND THAT THE EVIDENCE WAS NOT
SUFFICIENT TO CREATE A FACT QUESTION AS TO WHETHER PETITIONER WAS A
CREW MEMBER.  HELD: 

1.  THE REMEDY UNDER THE JONES ACT CREATED FOR A MEMBER OF THE CREW
OF ANY VESSEL IS SAVED BY 42 U.S.C. SEC. 1654.  P. 253. 

2.  PETITIONER'S EVIDENCE PRESENTED AN EVIDENTIARY BASIS FOR A JURY'S
FINDING WHETHER OR NOT PETITIONER WAS A MEMBER OF A CREW OF ANY
VESSEL.  P. 253. 

GRIMES V. RAYMOND CONCRETE PILE CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

PER CURIAM. 

THE PETITIONER BROUGHT THIS SUIT IN THE DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS.  HE SOUGHT DAMAGES UNDER THE JONES ACT, 46
U.S.C. SEC. 688, FOR INJURIES SUFFERED WHILE BEING TRANSFERRED AT SEA
IN A "NAVY LIFE RING" FROM A TUG TO A TEXAS TOWER WHICH THE
RESPONDENTS, HIS EMPLOYERS, WERE CONSTRUCTING UNDER A CONTRACT WITH THE
GOVERNMENT ON GEORGES BANK, 110 MILES EAST OF CAPE COD.  THE DISTRICT
COURT DIRECTED A VERDICT FOR THE RESPONDENTS AT THE CLOSE OF THE
PETITIONER'S CASE.  THE TRIAL JUDGE INDICATED HIS VIEW THAT THE
EVIDENCE CREATED A FACT QUESTION ON THE ISSUE AS TO WHETHER THE
PETITIONER WAS A CREW MEMBER, BUT HELD THAT THE PETITIONER'S EXCLUSIVE
REMEDY WAS UNDER THE DEFENSE BASES ACT, 42 U.S.C.  SECS. 1651-1654,
WHICH INCORPORATES THE REMEDIES OF THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT, 33 U.S.C. SECS. 901-950.  THE COURT OF
APPEALS FOR THE FIRST CIRCUIT HELD THAT THE DEFENSE BASES ACT DID NOT
PROVIDE THE EXCLUSIVE REMEDY FOR A MEMBER OF A CREW IN LIGHT OF SEC.
1654 OF THE ACT PROVIDING "THIS CHAPTER SHALL NOT APPLY IN RESPECT TO
THE INJURY  ...  OF  ...  (3) A MASTER OR MEMBER OF A CREW OF ANY
VESSEL."  HOWEVER, THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S
JUDGMENT, ONE JUDGE DISSENTING, UPON THE GROUND THAT THE EVIDENCE WAS
NOT SUFFICIENT TO CREATE A FACT QUESTION AS TO WHETHER THE PETITIONER
WAS A CREW MEMBER.  245 F.2D 437.  WE GRANTED CERTIORARI, 355 U.S.
867. 

WE HOLD, IN AGREEMENT WITH THE COURT OF APPEALS, THAT 42 U.S.C. SEC.
1654 SAVES THE REMEDY UNDER THE JONES ACT CREATED FOR A MEMBER OF A
CREW OF ANY VESSEL.  WE HOLD FURTHER, HOWEVER, IN DISAGREEMENT WITH THE
COURT OF APPEALS, THAT THE PETITIONER'S EVIDENCE PRESENTED AN
EVIDENTIARY BASIS FOR A JURY'S FINDING WHETHER OR NOT THE PETITIONER
WAS A MEMBER OF A CREW OF ANY VESSEL.  SENKO V. LACROSSE DREDGING
CORP., 352 U.S. 370; GIANFALA V. TEXAS CO., 350 U.S. 879; SOUTH CHICAGO
CO. V. BASSETT, 309 U.S. 251. 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

MR. JUSTICE FRANKFURTER IS OF OPINION THAT, SINCE THE COURSE OF
ARGUMENT DEMONSTRATED THAT THE CASE TURNS ENTIRELY ON EVALUATION OF
EVIDENCE IN A PARTICULAR SET OF CIRCUMSTANCES, THE WRIT OF CERTIORARI
WAS IMPROVIDENTLY GRANTED AND SHOULD BE DISMISSED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITTAKER JOINS, DISSENTING. 

EVEN STRETCHING THE COURT'S PAST OPINIONS IN THIS FIELD TO THEIR
UTMOST, E.G., SENKO V. LACROSSE DREDGING CORP., 352 U.S. 370, I CANNOT
AGREE WITH TODAY'S DECISION.  THE COURT OF APPEALS IS SAID TO HAVE
ERRED IN HOLDING THE EVIDENCE INSUFFICIENT TO WARRANT A JURY FINDING
THAT PETITIONER WAS A "MEMBER OF A CREW OF ANY VESSEL," AND THUS
ENTITLED TO AVAIL HIMSELF OF THE REMEDIES FOR SEAMEN PROVIDED BY THE
JONES ACT.  SEE SWANSON V. MARRA BROS., INC., 328 U.S. 1.  IN VIEW OF
THE FACT THAT IT HAS LONG BEEN SETTLED THAT A "MEMBER OF A CREW" IS ONE
WHO IS "NATURALLY AND PRIMARILY ON BOARD A VESSEL TO AID IN  ...
NAVIGATION," SOUTH CHICAGO COAL & DOCK CO. V. BASSETT, 309 U.S. 251,
260, A STATEMENT OF THE FACTS IN THIS CASE SHOULD SUFFICE TO SHOW WHY I
DISAGREE WITH THE COURT.  RESPONDENT HAD CONTRACTED TO INSTALL FOR THE
UNITED STATES GOVERNMENT AT A SITE 110 MILES SEAWARD OF CAPE COD A
"TEXAS TOWER" - A TRIANGULAR METAL PLATFORM SUPERIMPOSED SOME 60 FEET
ABOVE THE SURFACE OF THE SEA ON SUPPORTS PERMANENTLY AFFIXED TO THE
FLOOR OF THE OCEAN BY THREE CAISSONS, AND UTILIZED TO OPERATE A RADAR
WARNING STATION.  PETITIONER, A MEMBER OF THE PILE DRIVERS UNION, HAD
BEEN EMPLOYED BY RESPONDENT AS A PILE DRIVER ON THE PROJECT.  FOR
SEVERAL WEEKS, PETITIONER ASSISTED IN THE COMPLETION OF THE TOWER IN
THE BETHLEHEM EAST BOSTON YARDS.  WHEN THE TOWER WAS TOWED TO SEA,
PETITIONER WITH ABOUT 25 OTHER WORKMEN LIVED ON THE TOWER AND KEPT IT
IN CONDITION BY OPERATING AIR COMPRESSORS, GENERATORS, AND PUMPS TO
EXPEDITE INSTALLATION AT THE PERMANENT SITE, AS WELL AS BY PERFORMING
CERTAIN FUNCTIONS TO KEEP IT IN SAFE TOW.  AFTER THE TOWER WAS ANCHORED
AT ITS PERMANENT SITE AND WHILE THE TEMPORARY PILINGS WERE BEING DRIVEN
DOWN, PETITIONER PERFORMED ONLY PILE-DRIVING. 

SIX DAYS AFTER THE TOWER HAD BEEN PLACED IN ITS PERMANENT POSITION,
PETITIONER AND SEVERAL OTHER WORKMEN WERE SENT TO A NEARBY BARGE, WHICH
WAS WITHOUT CREW AND USED SOLELY TO TRANSPORT CONSTRUCTION MATERIALS,
TO PREPARE FOR TRANSFER OF SUCH MATERIALS TO THE TOWER.  THEY REACHED
THE BARGE BY WAY OF A TUG, WORKED THERE FOR ABOUT SIX HOURS, AND THEN
STARTED ON THEIR RETURN TO THE TOWER.  WHILE ON THE NAVY LIFE RING
WHICH WAS USED TO EFFECT HIS TRANSFER FROM TUG TO TOWER, PETITIONER WAS
INJURED WHEN THE LIFE RING COLLIDED WITH THE PILOTHOUSE ON THE TUG. 

ON THESE FACTS I AM UNABLE TO SEE HOW A JURY COULD PERMISSIBLY FIND
PETITIONER TO BE A "MEMBER OF A CREW OF ANY VESSEL" UNDER ANY SENSIBLE
MEANING OF THAT PHRASE.  PRESUMABLY THE COURT DOES NOT CONSIDER AS A
VESSEL THIS MAN-MADE ISLAND, THE TEXAS TOWER, WHICH WAS SECURELY FIXED
TO THE OCEAN BED BEFORE PETITIONER WAS INJURED.  I FIND EQUALLY
UNTENABLE THE OTHER POSSIBLE BASIS FOR THE COURT'S ACTION - THAT
PETITIONER'S SPORADIC WORK FOR A FEW HOURS ON THE BARGE, A MINOR
INCIDENT TO HIS CONTINUING EMPLOYMENT AS A PILE DRIVER ON THE TOWER,
COULD BE FOUND TO TRANSORM HIM AT THE TIME OF THE ACCIDENT INTO A
SEAMAN AND A MEMBER OF THE CREW OF THE BARGE.  IF THE "STANDING"
REQUIREMENTS OF THE JONES ACT ARE STILL TO BE REGARDED AS HAVING ANY
REAL CONTENT, I CAN FIND NO ROOM FOR DEBATE THAT THIS INDIVIDUAL IS NOT
A SEAMAN, UNLESS A "SEAMAN" IS TO MEAN NOTHING MORE THAN A PERSON
INJURED WHILE WORKING AT SEA.  WE SHOULD GIVE EFFECT TO THE LAW AS
CONGRESS HAS WRITTEN IT. 

IT SHOULD BE REMEMBERED THAT CONGRESS HAS NOT LEFT THIS PETITIONER
REMEDILESS, BUT HAS PROVIDED HIM WITH REDRESS UNDER THE DEFENSE BASES
ACT, 42 U.S.C. SEC. 1651.*  INDEED, PETITIONER HAS ALREADY FOLLOWED
THAT PATH AND COLLECTED COMPENSATION FOR HIS INJURIES. 

*I AGREE WITH THE COURT THAT THE DEFENSE BASES ACT DOES NOT FORECLOSE
SEAMEN FROM HAVING RECOURSE TO THE JONES ACT. 
..END :






MATLES V. UNITED STATES 356 U.S. 256 


NO. 378.  DECIDED APRIL 7, 1958* - CERTIORARI GRANTED.  - NO. 378:  247
F.2D 378, JUDGMENT REVERSED AND CASE REMANDED TO DISTRICT COURT WITH
DIRECTIONS TO VACATE THE ORDER HOLDING PETITIONER IN CONTEMPT AND TO
DISMISS THE COMPLAINT.  - NOS. 450 AND 494:  247 F.2D 123, 384,
JUDGMENTS REVERSED AND CASES REMANDED TO DISTRICT COURT WITH DIRECTIONS
TO DISMISS THE COMPLAINTS. 

*TOGETHER WITH NO. 450, LUCCHESE V. UNITED STATES, AND NO. 494,
COSTELLO V. UNITED STATES, ALSO ON PETITIONS FOR WRITS OF CERTIORARI TO
THE SAME COURT. 


AN AFFIDAVIT SHOWING GOOD CAUSE IS A PREREQUISITE TO THE INITIATION OF
DENATURALIZATION PROCEEDINGS, AND SUCH AFFIDAVIT MUST BE FILED WITH THE
COMPLAINT WHEN THE PROCEEDINGS ARE INSTITUTED.  UNITED STATES V. ZUCCA,
351 U.S. 91. 

MATLES V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED.  IN NO. 378 THE
JUDGMENT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IS REVERSED AND
THE CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO VACATE
THE ORDER HOLDING THE PETITIONER IN CONTEMPT AND TO DISMISS THE
COMPLAINT.  IN NOS. 450 AND 494 THE JUDGMENTS OF THE COURT OF APPEALS
FOR THE SECOND CIRCUIT ARE REVERSED AND THE CASES ARE REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO DISMISS THE COMPLAINTS.  AN AFFIDAVIT
SHOWING GOOD CAUSE IS A PREREQUISITE TO THE INITIATION OF
DENATURALIZATION PROCEEDINGS.  THE AFFIDAVIT MUST BE FILED WITH THE
COMPLAINT WHEN THE PROCEEDINGS ARE INSTITUTED.  UNITED STATES V. ZUCCA,
351 U.S. 91, 99-100. 
..END :















UNITED STATES V. DIAMOND, ALIAS DUMANUS, THORNSON AND SLATER 356 U.S.
257 


NO. 771.  DECIDED APRIL 7, 1958 - CERTIORARI GRANTED AND JUDGMENT
AFFIRMED.  - REPORTED BELOW:  255 F.2D 749. 


UNITED STATES V. DIAMOND, ALIAS DUMANUS, THORNSON AND SLATER, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT IS
AFFIRMED. 
..END :















MENDOZA-MARTINEZ V. MACKEY 356 U.S. 258 


NO. 54.  DECIDED APRIL 7, 1958 - REPORTED BELOW:  238 F.2D 239. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CAUSE REMANDED TO DISTRICT
COURT FOR DETERMINATION IN LIGHT OF TROP V. DULLES, ANTE, P. 86. 

MENDOZA-MARTINEZ V. MACKEY, COMMISSIONER OF IMMIGRATION AND
NATURALIZATION SERVICE, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI AND THE MOTION TO SUBSTITUTE
WILLIAM P. ROGERS, PRESENT ATTORNEY GENERAL OF THE UNITED STATES, AS A
PARTY RESPONDENT IN THE PLACE AND STEAD OF HERBERT BROWNELL, JR.,
RESIGNED, ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT IS VACATED AND THE CAUSE IS REMANDED TO
THE UNITED STATES DISTRICT COURT FOR DETERMINATION IN LIGHT OF TROP V.
DULLES, ANTE, P. 86, DECIDED MARCH 31, 1958. 
..END :







DANDRIDGE V. UNITED STATES 356 U.S. 259 


NO. 609.  DECIDED APRIL 7, 1958 - 101 U.S. APP. D.C. 114, 247 F.2D 105,
REVERSED. 


UPON CONSIDERATION OF RECORD AND CONFESSION OF ERROR BY SOLICITOR
GENERAL, JUDGMENT OF COURT OF APPEALS REVERSED AND CASE REMANDED TO
DISTRICT COURT WITH DIRECTIONS TO PERMIT DEFENDANT TO CHANGE HIS PLEA
OF GUILTY. 

DANDRIDGE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE ENTIRE RECORD AND THE CONFESSION OF ERROR
BY THE SOLICITOR GENERAL, THE JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS REVERSED AND THE CASE
IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO PERMIT THE
DEFENDANT TO CHANGE HIS PLEA. 
..END :







PEREZ V. BROWNELL 356 U.S. 44 


NO. 44.  ARGUED MAY 1, 1957 - RESTORED TO THE CALENDAR FOR REARGUMENT
JUNE 24, 1957 - REARGUED OCTOBER 28, 1957 - DECIDED MARCH 31, 1958* -
235 F.2D 364, AFFIRMED. 

*ON THE SAME DAY, AN ORDER WAS ENTERED SUBSTITUTING ATTORNEY GENERAL
ROGERS FOR FORMER ATTORNEY GENERAL BROWNELL AS THE PARTY RESPONDENT. 
SEE POST, P. 915. 


IN PROCEEDINGS TO DEPORT A PERSON BORN IN THE UNITED STATES, THE
GOVERNMENT DENIED THAT HE WAS AN AMERICAN CITIZEN ON THE GROUND THAT,
BY VOTING IN A MEXICAN POLITICAL ELECTION AND REMAINING OUTSIDE OF THE
UNITED STATES IN WARTIME TO AVOID MILITARY SERVICE, HE HAD LOST HIS
CITIZENSHIP UNDER SEC. 401(E) AND (J) OF THE NATIONALITY ACT OF 1940,
AS AMENDED.  HE SUED FOR A JUDGMENT DECLARING HIM TO BE A CITIZEN BUT
WAS DENIED RELIEF.  HELD:  IT WAS WITHIN THE AUTHORITY OF CONGRESS,
UNDER ITS POWER TO REGULATE THE RELATIONS OF THE UNITED STATES WITH
FOREIGN COUNTRIES, TO PROVIDE IN SEC. 401(E) THAT ANYONE WHO VOTES IN A
FOREIGN POLITICAL ELECTION SHALL LOSE HIS AMERICAN CITIZENSHIP; AND THE
JUDGMENT IS AFFIRMED.  PP. 45-62. 

(A)  THE POWER OF CONGRESS TO REGULATE FOREIGN RELATIONS MAY
REASONABLY BE DEEMED TO INCLUDE A POWER TO DEAL WITH VOTING BY AMERICAN
CITIZENS IN FOREIGN POLITICAL ELECTIONS, SINCE CONGRESS COULD FIND THAT
SUCH ACTIVITIES, BECAUSE THEY MIGHT GIVE RISE TO SERIOUS INTERNATIONAL
EMBARRASSMENT, RELATE TO THE CONDUCT OF FOREIGN RELATIONS.  PP. 57-60. 

(B)  SINCE WITHDRAWAL OF THE CITIZENSHIP OF AMERICANS WHO VOTE IN
FOREIGN POLITICAL ELECTIONS IS REASONABLY CALCULATED TO EFFECT THE
AVOIDANCE OF EMBARRASSMENT IN THE CONDUCT OF FOREIGN RELATIONS, SUCH
WITHDRAWAL IS WITHIN THE POWER OF CONGRESS, ACTING UNDER THE NECESSARY
AND PROPER CLAUSE.  PP. 60-62. 

(C)  THERE IS NOTHING IN THE LANGUAGE, THE CONTEXT, THE HISTORY OR
THE MANIFEST PURPOSE OF THE FOURTEENTH AMENDMENT TO WARRANT DRAWING
FROM IT A RESTRICTION UPON THE POWER OTHERWISE POSSESSED BY CONGRESS TO
WITHDRAW CITIZENSHIP.  P. 58, N. 3. 

(D)  NO OPINION IS EXPRESSED WITH RESPECT TO THE CONSTITUTIONALITY OF
SEC. 401(J) RELATING TO PERSONS WHO REMAIN OUTSIDE THE UNITED STATES TO
AVOID MILITARY SERVICE.  P. 62. 

PEREZ V. BROWNELL, ATTORNEY GENERAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A NATIONAL OF THE UNITED STATES BY BIRTH, HAS BEEN
DECLARED TO HAVE LOST HIS AMERICAN CITIZENSHIP BY OPERATION OF THE
NATIONALITY ACT OF 1940, 54 STAT. 1137, AS AMENDED BY THE ACT OF
SEPTEMBER 27, 1944, 58 STAT. 746.  SECTION 401 OF THAT ACT (FN1)
PROVIDED THAT: 

"A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR
NATURALIZATION, SHALL LOSE HIS NATIONALITY BY: 

     *         *         *         *         * 

"(E)  VOTING IN A POLITICAL ELECTION IN A FOREIGN STATE OR
PARTICIPATING IN AN ELECTION OR PLEBICITE TO DETERMINE THE SOVEREIGNTY
OVER FOREIGN TERRITORY; OR: 

     *         *     *         *         * 

"(J)  DEPARTING FROM OR REMAINING OUTSIDE OF THE JURISDICTION OF THE
UNITED STATES IN TIME OF WAR OR DURING A PERIOD DECLARED BY THE
PRESIDENT TO BE A PERIOD OF NATIONAL EMERGENCY FOR THE PURPOSE OF
EVADING OR AVOIDING TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF
THE UNITED STATES." 

HE SEEKS A REVERSAL OF THE JUDGMENT AGAINST HIM ON THE GROUND THAT
THESE PROVISIONS WERE BEYOND THE POWER OF CONGRESS TO ENACT. 

PETITIONER WAS BORN IN TEXAS IN 1909.  HE RESIDED IN THE UNITED
STATES UNTIL 1919 OR 1920, WHEN HE MOVED WITH HIS PARENTS TO MEXICO,
WHERE HE LIVED, APPARENTLY WITHOUT INTERRUPTION, UNTIL 1943.  IN 1928
HE WAS INFORMED THAT HE HAD BEEN BORN IN TEXAS.  AT THE OUTBREAK OF
WORLD WAR II, PETITIONER KNEW OF THE DUTY OF MALE UNITED STATES
CITIZENS TO REGISTER FOR THE DRAFT, BUT HE FAILED TO DO SO. IN 1943 HE
APPLIED FOR ADMISSION TO THE UNITED STATES AS AN ALIEN RAILROAD
LABORER, STATING THAT HE WAS A NATIVE-BORN CITIZEN OF MEXICO, AND WAS
GRANTED PERMISSION TO ENTER ON A TEMPORARY BASIS.  HE RETURNED TO
MEXICO IN 1944 AND SHORTLY THEREAFTER APPLIED FOR AND WAS GRANTED
PERMISSION, AGAIN AS A NATIVE-BORN MEXICAN CITIZEN, TO ENTER THE UNITED
STATES TEMPORARILY TO CONTINUE HIS EMPLOYMENT AS A RAILROAD LABORER. 
LATER IN 1944 HE RETURNED TO MEXICO ONCE MORE.  IN 1947 PETITIONER
APPLIED FOR ADMISSION TO THE UNITED STATES AT EL PASO, TEXAS, AS A
CITIZEN OF THE UNITED STATES.  AT A BOARD OF SPECIAL INQUIRY HEARING
(AND IN HIS SUBSEQUENT APPEALS TO THE ASSISTANT COMMISSIONER AND THE
BOARD OF IMMIGRATION APPEALS), HE ADMITTED HAVING REMAINED OUTSIDE OF
THE UNITED STATES TO AVOID MILITARY SERVICE AND HAVING VOTED IN
POLITICAL ELECTIONS IN MEXICO.  HE WAS ORDERED EXCLUDED ON THE GROUND
THAT HE HAD EXPATRIATED HIMSELF; THIS ORDER WAS AFFIRMED ON APPEAL.  IN
1952 PETITIONER, CLAIMING TO BE A NATIVE-BORN CITIZEN OF MEXICO, WAS
PERMITTED TO ENTER THE UNITED STATES AS AN ALIEN AGRICULTURAL LABORER. 
HE SURRENDERED IN 1953 TO IMMIGRATION AUTHORITIES IN SAN FRANCISCO AS
AN ALIEN UNLAWFULLY IN THE UNITED STATES BUT CLAIMED THE RIGHT TO
REMAIN BY VIRTUE OF HIS AMERICAN CITIZENSHIP.  AFTER A HEARING BEFORE A
SPECIAL INQUIRY OFFICER, HE WAS ORDERED DEPORTED AS AN ALIEN NOT IN
POSSESSION OF A VALID IMMIGRATION VISA; THIS ORDER WAS AFFIRMED ON
APPEAL TO THE BOARD OF IMMIGRATION APPEALS. 

PETITIONER BROUGHT SUIT IN 1954 IN A UNITED STATES DISTRICT COURT FOR
A JUDGMENT DECLARING HIM TO BE A NATIONAL OF THE UNITED STATES.  (FN2)
THE COURT, SITTING WITHOUT A JURY, FOUND (IN ADDITION TO THE UNDISPUTED
FACTS SET FORTH ABOVE) THAT PETITIONER HAD REMAINED OUTSIDE OF THE
UNITED STATES FROM NOVEMBER 1944 TO JULY 1947 FOR THE PURPOSE OF
AVOIDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES AND THAT HE
HAD VOTED IN A "POLITICAL ELECTION" IN MEXICO IN 1946.  THE COURT,
CONCLUDING THAT HE HAD THEREBY EXPATRIATED HIMSELF, DENIED THE RELIEF
SOUGHT BY THE PETITIONER.  THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT AFFIRMED.  235 F.2D 364.  WE GRANTED CERTIORARI BECAUSE
OF THE CONSTITUTIONAL QUESTIONS RAISED BY THE PETITIONER.  352 U.S.
908. 

STATUTORY EXPATRIATION, AS A RESPONSE TO PROBLEMS OF INTERNATIONAL
RELATIONS, WAS FIRST INTRODUCED JUST A HALF CENTURY AGO.  LONG BEFORE
THAT, HOWEVER, SERIOUS FRICTION BETWEEN THE UNITED STATES AND OTHER
NATIONS HAD STIRRED CONSIDERATION OF MODES OF DEALING WITH THE
DIFFICULTIES THAT AROSE OUT OF THE CONFLICTING CLAIMS TO THE ALLEGIANCE
OF FOREIGN-BORN PERSONS NATURALIZED IN THE UNITED STATES, PARTICULARLY
WHEN THEY RETURNED TO THE COUNTRY OF THEIR ORIGIN. 

AS A STARTING POINT FOR GRAPPLING WITH THIS TANGLE OF PROBLEMS,
CONGRESS IN 1868 FORMALLY ANNOUNCED THE TRADITIONAL POLICY OF THIS
COUNTRY THAT IT IS THE "NATURAL AND INHERENT RIGHT OF ALL PEOPLE" TO
DIVEST THEMSELVES OF THEIR ALLEGIANCE TO ANY STATE, 15 STAT. 223, R.S.
SEC. 1999.  ALTHOUGH THE IMPULSE FOR THIS LEGISLATION HAD BEEN THE
REFUSAL BY OTHER NATIONS, NOTABLY GREAT BRITAIN, TO RECOGNIZE A RIGHT
IN NATURALIZED AMERICANS WHO HAD BEEN THEIR SUBJECTS TO SHED THAT
FORMER ALLEGIANCE, THE ACT OF 1868 WAS HELD BY THE ATTORNEY GENERAL TO
APPLY TO DIVESTMENT BY NATIVE-BORN AND NATURALIZED AMERICANS OF THEIR
UNITED STATES CITIZENSHIP.  14 OP. ATTY. GEN. 295, 296.  IN ADDITION,
WHILE THE DEBATE ON THE ACT OF 1868 WAS PROCEEDING, NEGOTIATIONS WERE
COMPLETED ON THE FIRST OF A SERIES OF TREATIES FOR THE ADJUSTMENT OF
SOME OF THE DISAGREEMENTS THAT WERE CONSTANTLY ARISING BETWEEN THE
UNITED STATES AND OTHER NATIONS CONCERNING CITIZENSHIP.  THESE
INSTRUMENTS TYPICALLY PROVIDED THAT EACH OF THE SIGNATORY NATIONS WOULD
REGARD AS A CITIZEN OF THE OTHER SUCH OF ITS OWN CITIZENS AS BECAME
NATURALIZED BY THE OTHER.  E.G., TREATY WITH THE NORTH GERMAN
CONFEDERATION, FEB. 22, 1868, 2 TREATIES, CONVENTIONS, INTERNATIONAL
ACTS, ETC. (COMP. MALLOY, 1910), 1298.  THIS SERIES OF TREATIES
INITIATED THIS COUNTRY'S POLICY OF AUTOMATIC DIVESTMENT OF CITIZENSHIP
FOR SPECIFIED CONDUCT AFFECTING OUR FOREIGN RELATIONS. 

ON THE BASIS, PRESUMABLY, OF THE ACT OF 1868 AND SUCH TREATIES AS
WERE IN FORCE, IT WAS THE PRACTICE OF THE DEPARTMENT OF STATE DURING
THE LAST THIRD OF THE NINETEENTH CENTURY TO MAKE RULINGS AS TO
FORFEITURE OF UNITED STATES CITIZENSHIP BY INDIVIDUALS WHO PERFORMED
VARIOUS ACTS ABROAD.  SEE BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS
ABROAD, SECS. 319, 324.  NATURALIZED CITIZENS WHO RETURNED TO THE
COUNTRY OF THEIR ORIGIN WERE HELD TO HAVE ABANDONED THEIR CITIZENSHIP
BY SUCH ACTIONS AS ACCEPTING PUBLIC OFFICE THERE OR ASSUMING POLITICAL
DUTIES.  SEE DAVIS TO WEILE, APR. 18, 1870, 3 MOORE, DIGEST OF
INTERNATIONAL LAW, 737; DAVIS TO TAFT, JAN. 18, 1883, 3 ID., AT 739. 
NATIVE-BORN CITIZENS OF THE UNITED STATES (AS WELL AS NATURALIZED
CITIZENS OUTSIDE OF THE COUNTRY OF THEIR ORIGIN) WERE GENERALLY DEEMED
TO HAVE LOST THEIR AMERICAN CITIZENSHIP ONLY IF THEY ACQUIRED FOREIGN
CITIZENSHIP.  SEE BAYARD TO SUZZARA-VERDI, JAN. 27, 1887, 3 ID., AT
714; SEE ALSO COMITIS V. PARKERSON, 56 F. 556, 559. 

NO ONE SEEMS TO HAVE QUESTIONED THE NECESSITY OF HAVING THE STATE
DEPARTMENT, IN ITS CONDUCT OF THE FOREIGN RELATIONS OF THE NATION, PASS
ON THE VALIDITY OF CLAIMS TO AMERICAN CITIZENSHIP AND TO SUCH OF ITS
INCIDENTS AS THE RIGHT TO DIPLOMATIC PROTECTION.  HOWEVER, IT WAS
RECOGNIZED IN THE EXECUTIVE BRANCH THAT THE DEPARTMENT HAD NO SPECIFIC
LEGISLATIVE AUTHORITY FOR NULLIFYING CITIZENSHIP, AND SEVERAL OF THE
PRESIDENTS URGED CONGRESS TO DEFINE THE ACTS BY WHICH CITIZENS SHOULD
BE HELD TO HAVE EXPATRIATED THEMSELVES.  E.G., MESSAGE OF PRESIDENT
GRANT TO CONGRESS, DEC. 7, 1874, 7 MESSAGES AND PAPERS OF THE
PRESIDENTS (RICHARDSON ED. 1899) 284, 291-292.  FINALLY IN 1906, DURING
THE CONSIDERATION OF THE BILL THAT BECAME THE NATURALIZATION ACT OF
1906, A SENATE RESOLUTION AND A RECOMMENDATION OF THE HOUSE COMMITTEE
ON FOREIGN AFFAIRS CALLED FOR AN EXAMINATION OF THE PROBLEMS RELATING
TO AMERICAN CITIZENSHIP, EXPATRIATION AND PROTECTION ABROAD.  IN
RESPONSE TO THESE SUGGESTIONS THE SECRETARY OF STATE APPOINTED THE
CITIZENSHIP BOARD OF 1906, COMPOSED OF THE SOLICITOR OF THE STATE
DEPARTMENT, THE MINISTER TO THE NETHERLANDS AND THE CHIEF OF THE
PASSPORT BUREAU.  THE BOARD CONDUCTED A STUDY AND LATE IN 1906 MADE AN
EXTENSIVE REPORT WITH RECOMMENDATIONS FOR LEGISLATION. 

AMONG THE RECOMMENDATIONS OF THE BOARD WERE THAT EXPATRIATION OF A
CITIZEN "BE ASSUMED" WHEN, IN TIME OF PEACE, HE BECAME NATURALIZED IN A
FOREIGN STATE, ENGAGED IN THE SERVICE OF A FOREIGN STATE WHERE SUCH
SERVICE INVOLVED THE TAKING OF AN OATH OF ALLEGIANCE TO THAT STATE, OR
DOMICILED IN A FOREIGN STATE FOR FIVE YEARS WITH NO INTENTION TO
RETURN.  CITIZENSHIP OF THE UNITED STATES, EXPATRIATION, AND PROTECTION
ABROAD, H.R. DOC. NO. 326, 59TH CONG., 2D SESS. 23.  IT ALSO
RECOMMENDED THAT AN AMERICAN WOMAN WHO MARRIED A FOREIGNER BE REGARDED
AS LOSING HER AMERICAN CITIZENSHIP DURING COVERTURE.  ID., AT 29.  AS
TO THE FIRST TWO RECOMMENDED ACTS OF EXPATRIATION, THE REPORT STATED
THAT "NO MAN SHOULD BE PERMITTED DELIBERATELY TO PLACE HIMSELF IN A
POSITION WHERE HIS SERVICES MAY BE CLAIMED BY MORE THAN ONE GOVERNMENT
AND HIS ALLEGIANCE BE DUE TO MORE THAN ONE."   ID., AT 23.  AS TO THE
THIRD, THE BOARD STATED THAT MORE AND MORE AMERICANS WERE GOING ABROAD
TO LIVE "AND THE QUESTION OF THEIR PROTECTION CAUSES INCREASING
EMBARRASSMENT TO THIS GOVERNMENT IN ITS RELATIONS WITH FOREIGN
POWERS."  ID., AT 25. 

WITHIN A MONTH OF THE SUBMISSION OF THIS REPORT A BILL WAS INTRODUCED
IN THE HOUSE BY REPRESENTATIVE PERKINS OF NEW YORK BASED ON THE BOARD'S
RECOMMENDATIONS.  PERKINS' BILL PROVIDED THAT A CITIZEN WOULD BE
"DEEMED TO HAVE EXPATRIATED HIMSELF" WHEN, IN PEACETIME, HE BECAME
NATURALIZED IN A FOREIGN COUNTRY OR TOOK AN OATH OF ALLEGIANCE TO A
FOREIGN STATE; IT WAS PRESUMED THAT A NATURALIZED CITIZEN WHO RESIDED
FOR FIVE YEARS IN A FOREIGN STATE HAD CEASED TO BE AN AMERICAN CITIZEN,
AND AN AMERICAN WOMAN WHO MARRIED A FOREIGNER WOULD TAKE THE
NATIONALITY OF HER HUSBAND.  41 CONG. REC. 1463-1464.  PERKINS STATED
THAT THE BILL WAS DESIGNED TO DISCOURAGE PEOPLE FROM EVADING
RESPONSIBILITIES BOTH TO OTHER COUNTRIES AND TO THE UNITED STATES AND
"TO SAVE OUR GOVERNMENT FROM BECOMING INVOLVED IN ANY TROUBLE OR
QUESTION WITH FOREIGN COUNTRIES WHERE THERE IS NO JUST REASON."  ID.,
AT 1464.  WHAT LITTLE DEBATE THERE WAS ON THE BILL CENTERED AROUND THE
FOREIGN DOMICILE PROVISION; NO CONSTITUTIONAL ISSUE WAS CANVASSED.  THE
BILL PASSED THE HOUSE, AND, AFTER SUBSTANTIALLY NO DEBATE AND THE
ADOPTION OF A COMMITTEE AMENDMENT ADDING A PRESUMPTION OF TERMINATION
OF CITIZENSHIP FOR A NATURALIZED CITIZEN WHO RESIDED FOR TWO YEARS IN
THE COUNTRY OF HIS ORIGIN, 41 CONG. REC.  4116, THE SENATE PASSED IT
AND IT BECAME THE EXPATRIATION ACT OF 1907.  34 STAT. 1228. 

THE QUESTION OF THE POWER OF CONGRESS TO ENACT LEGISLATION DEPRIVING
INDIVIDUALS OF THEIR AMERICAN CITIZENSHIP WAS FIRST RAISED IN THE
COURTS BY MACKENZIE V. HARE, 239 U.S. 299.  THE PLAINTIFF IN THAT
ACTION, MRS. MACKENZIE, WAS A NATIVE-BORN CITIZEN AND RESIDENT OF THE
UNITED STATES.  IN 1909 SHE MARRIED A SUBJECT OF GREAT BRITAIN AND
CONTINUED TO RESIDE WITH HIM IN THE UNITED STATES.  WHEN, IN 1913, SHE
APPLIED TO THE DEFENDANTS, MEMBERS OF A BOARD OF ELECTIONS IN
CALIFORNIA, TO BE REGISTERED AS A VOTER, HER APPLICATION WAS REFUSED ON
THE GROUND THAT BY REASON OF HER MARRIAGE SHE HAD CEASED TO BE A
CITIZEN OF THE UNITED STATES.  HER PETITION FOR A WRIT OF MANDAMUS WAS
DENIED IN THE STATE COURTS OF CALIFORNIA, AND SHE SUED OUT A WRIT OF
ERROR HERE, CLAIMING THAT IF THE ACT OF 1907 WAS INTENDED TO APPLY TO
HER IT WAS BEYOND THE POWER OF CONGRESS.  THE COURT, THROUGH MR.
JUSTICE MCKENNA, AFTER FINDING THAT MERGING THE IDENTITY OF HUSBAND AND
WIFE, AS CONGRESS HAD DONE IN THIS INSTANCE, HAD A "PURPOSE AND, IT MAY
BE, NECESSITY, IN INTERNATIONAL POLICY," CONTINUED: 

"AS A GOVERNMENT, THE UNITED STATES IS INVESTED WITH ALL THE
ATTRIBUTES OF SOVEREIGNTY.  AS IT HAS THE CHARACTER OF NATIONALITY IT
HAS THE POWERS OF NATIONALITY, ESPECIALLY THOSE WHICH CONCERN ITS
RELATIONS AND INTERCOURSE WITH OTHER COUNTRIES.  WE SHOULD HESITATE
LONG BEFORE LIMITING OR EMBARRASSING SUCH POWERS  ...  .  WE CONCUR
WITH COUNSEL THAT CITIZENSHIP IS OF TANGIBLE WORTH, AND WE SYMPATHIZE
WITH PLAINTIFF IN HER DESIRE TO RETAIN IT AND IN HER EARNEST ASSERTION
OF IT.  BUT THERE IS INVOLVED MORE THAN PERSONAL CONSIDERATIONS.  AS WE
HAVE SEEN, THE LEGISLATION WAS URGED BY CONDITIONS OF NATIONAL MOMENT
...  .  IT IS THE CONCEPTION OF THE LEGISLATION UNDER REVIEW THAT SUCH
AN ACT MAY BRING THE GOVERNMENT INTO EMBARRASSMENTS AND, IT MAY BE,
INTO CONTROVERSIES  ...  ."   239 U.S., AT 311-312. 

THE COURT OBSERVED THAT VOLUNTARY MARRIAGE OF AN AMERICAN WOMAN WITH
A FOREIGNER MAY HAVE THE SAME CONSEQUENCES, AND "INVOLVE NATIONAL
COMPLICATIONS OF LIKE KIND," AS VOLUNTARY EXPATRIATION IN THE
TRADITIONAL SENSE.  IT CONCLUDED:  "THIS IS NO ARBITRARY EXERCISE OF
GOVERNMENT."  239 U.S., AT 312.   SEE ALSO EX PARTE GRIFFIN, 237 F.
445; EX PARTE NG FUNG SING, 6 F.2D 670. 

BY THE EARLY 1930'S, THE AMERICAN LAW ON NATIONALITY, INCLUDING
NATURALIZATION AND DENATIONALIZATION, WAS EXPRESSED IN A LARGE NUMBER
OF PROVISIONS SCATTERED THROUGHOUT THE STATUTE BOOKS.  SOME OF THE
SPECIFIC LAWS ENACTED AT DIFFERENT TIMES SEEMED INCONSISTENT WITH
OTHERS, SOME PROBLEMS OF GROWING IMPORTANCE HAD EMERGED THAT CONGRESS
HAD LEFT UNHEEDED.  AT THE REQUEST OF THE HOUSE COMMITTEE ON
IMMIGRATION AND NATURALIZATION, SEE 86 CONG. REC. 11943, PRESIDENT
FRANKLIN D. ROOSEVELT ESTABLISHED A COMMITTEE COMPOSED OF THE SECRETARY
OF STATE, THE ATTORNEY GENERAL AND THE SECRETARY OF LABOR TO REVIEW THE
NATIONALITY LAWS OF THE UNITED STATES, TO RECOMMEND REVISIONS AND TO
CODIFY THE NATIONALITY LAWS INTO ONE COMPREHENSIVE STATUTE FOR
SUBMISSION TO CONGRESS; HE EXPRESSED PARTICULAR CONCERN ABOUT "EXISTING
DISCRIMINATIONS" IN THE LAW.  EXEC. ORDER NO. 6115, APR. 25, 1933.  THE
NECESSARY RESEARCH FOR SUCH A STUDY WAS ENTRUSTED TO SPECIALISTS
REPRESENTING THE THREE DEPARTMENTS.  FIVE YEARS WERE SPENT BY THESE
OFFICIALS IN THE STUDY AND FORMULATION OF A DRAFT CODE.  IN THEIR
LETTER SUBMITTING THE DRAFT CODE TO THE PRESIDENT AFTER IT HAD BEEN
REVIEWED WITHIN THE EXECUTIVE BRANCH, THE CABINET COMMITTEE NOTED THE
SPECIAL IMPORTANCE OF THE PROVISIONS CONCERNING LOSS OF NATIONALITY AND
ASSERTED THAT NONE OF THESE PROVISIONS WAS "DESIGNED TO BE PUNITIVE OR
TO INTERFERE WITH FREEDOM OF ACTION"; THEY WERE INTENDED TO DEPRIVE OF
CITIZENSHIP THOSE PERSONS WHO HAD SHOWN THAT "THEIR REAL ATTACHMENT IS
TO THE FOREIGN COUNTRY AND NOT TO THE UNITED STATES."  CODIFICATION OF
THE NATIONALITY LAWS OF THE UNITED STATES, H.R. COMM. PRINT, PT. 1,
76TH CONG., 1ST SESS. V-VII. 

THE DRAFT CODE OF THE EXECUTIVE BRANCH WAS AN OMNIBUS BILL IN FIVE
CHAPTERS.  THE CHAPTER RELATING TO "LOSS OF NATIONALITY" PROVIDED THAT
ANY CITIZEN SHOULD "LOSE HIS NATIONALITY" BY BECOMING NATURALIZED IN A
FOREIGN COUNTRY; TAKING AN OATH OF ALLEGIANCE TO A FOREIGN STATE;
ENTERING OR SERVING IN THE ARMED FORCES OF A FOREIGN STATE; BEING
EMPLOYED BY A FOREIGN GOVERNMENT IN A POST FOR WHICH ONLY NATIONALS OF
THAT COUNTRY ARE ELIGIBLE; VOTING IN A FOREIGN POLITICAL ELECTION OR
PLEBISCITE; USING A PASSPORT OF A FOREIGN STATE AS A NATIONAL THEREOF;
FORMALLY RENOUNCING AMERICAN CITIZENSHIP BEFORE A CONSULAR OFFICER
ABROAD; DESERTING THE ARMED FORCES OF THE UNITED STATES IN WARTIME
(UPON CONVICTION BY COURT MARTIAL); IF A NATURALIZED CITIZEN, RESIDING
IN THE STATE OF HIS FORMER NATIONALITY OR BIRTH FOR TWO YEARS IF HE
THEREBY ACQUIRES THE NATIONALITY OF THAT STATE; OR, IF A NATURALIZED
CITIZEN, RESIDING IN THE STATE OF HIS FORMER NATIONALITY OR BIRTH FOR
THREE YEARS.  ID., AT 66-76. 

IN SUPPORT OF THE RECOMMENDATION OF VOTING IN A FOREIGN POLITICAL
ELECTION AS AN ACT OF EXPATRIATION, THE COMMITTEE REPORTED: 

"TAKING AN ACTIVE PART IN THE POLITICAL AFFAIRS OF A FOREIGN STATE BY
VOTING IN A POLITICAL ELECTION THEREIN IS BELIEVED TO INVOLVE A
POLITICAL ATTACHMENT AND PRACTICAL ALLEGIANCE THERETO WHICH IS
INCONSISTENT WITH CONTINUED ALLEGIANCE TO THE UNITED STATES, WHETHER OR
NOT THE PERSON IN QUESTION HAS OR ACQUIRES THE NATIONALITY OF THE
FOREIGN STATE.  IN ANY EVENT IT IS NOT BELIEVED THAT AN AMERICAN
NATIONAL SHOULD BE PERMITTED TO PARTICIPATE IN THE POLITICAL AFFAIRS OF
A FOREIGN STATE AND AT THE SAME TIME RETAIN HIS AMERICAN NATIONALITY. 
THE TWO FACTS WOULD SEEM TO BE INCONSISTENT WITH EACH OTHER."  ID., AT
67. 

AS TO THE REFERENCE TO PLEBISCITES IN THE DRAFT LANGUAGE, THE REPORT
STATES:  "IF THIS PROVISION HAD BEEN IN EFFECT WHEN THE SAAR PLEBISCITE
WAS HELD, AMERICANS VOTING IN IT WOULD HAVE BEEN EXPATRIATED."  IBID.
IT SEEMS CLEAR THAT THE MOST IMMEDIATE IMPULSE FOR THE ENTIRE VOTING
PROVISION WAS THE PARTICIPATION BY MANY NATURALIZED AMERICANS IN THE
PLEBISCITE TO DETERMINE SOVEREIGNTY OVER THE SAAR IN JANUARY 1935. 
H.R. REP. NO. 216, 74TH CONG., 1ST SESS. 1.  REPRESENTATIVE DICKSTEIN
OF NEW YORK, CHAIRMAN OF THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION, WHO HAD CALLED THE PLEBISCITE AN "INTERNATIONAL
DISPUTE" IN WHICH NATURALIZED AMERICAN CITIZENS COULD NOT PROPERLY
PARTICIPATE, N.Y. TIMES, JAN. 4, 1935, P. 12, COL. 3, HAD INTRODUCED A
BILL IN THE HOUSE IN 1935 SIMILAR IN LANGUAGE TO THE VOTING PROVISIONS
IN THE DRAFT CODE, 79 CONG. REC. 2050, BUT, ALTHOUGH IT WAS FAVORABLY
REPORTED, THE HOUSE DID NOT PASS IT. 

IN JUNE 1938 THE PRESIDENT SUBMITTED THE CABINET COMMITTEE'S DRAFT
CODE AND THE SUPPORTING REPORT TO CONGRESS.  IN DUE COURSE, CHAIRMAN
DICKSTEIN INTRODUCED THE CODE AS H.R. 6127, AND IT WAS REFERRED TO HIS
COMMITTEE.  IN EARLY 1940 EXTENSIVE HEARINGS WERE HELD BEFORE BOTH A
SUBCOMMITTEE AND THE FULL COMMITTEE AT WHICH THE INTERESTED EXECUTIVE
BRANCH AGENCIES AND OTHERS TESTIFIED.  WITH RESPECT TO THE VOTING
PROVISION, CHAIRMAN DICKSTEIN SPOKE OF THE AMERICANS WHO HAD VOTED IN
THE SAAR PLEBISCITE AND SAID, "IF THEY ARE AMERICAN CITIZENS THEY HAD
NO RIGHT TO VOTE, TO INTERFERE WITH FOREIGN MATTERS OR POLITICAL
SUBDIVISION."  HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON H.R. 6127, 76TH CONG., 1ST SESS. 287.  MR. FLOURNOY,
ASSISTANT LEGAL ADVISER OF THE STATE DEPARTMENT, SAID THAT THE
PROVISION WOULD BE "PARTICULARLY APPLICABLE" TO PERSONS OF DUAL
NATIONALITY, ID., AT 132; HOWEVER, A SUGGESTION THAT THE PROVISION BE
MADE APPLICABLE ONLY TO DUAL NATIONALS, ID., AT 398, WAS NOT ADOPTED. 

UPON THE CONCLUSION OF THE HEARINGS IN JUNE 1940 A NEW BILL WAS DRAWN
UP AND INTRODUCED AS H.R. 9980.  THE ONLY CHANGES FROM THE EXECUTIVE
BRANCH DRAFT WITH RESPECT TO THE ACTS OF EXPATRIATION WERE THE DELETION
OF USING A FOREIGN PASSPORT AND THE ADDITION OF RESIDENCE BY A
NATURALIZED CITIZEN FOR FIVE YEARS IN ANY FOREIGN COUNTRY AS ACTS THAT
WOULD RESULT IN LOSS OF NATIONALITY.  86 CONG. REC. 11960-11961.  THE
HOUSE DEBATED THE BILL FOR A DAY IN SEPTEMBER 1940.  IN BRIEFLY
SUMMARIZING THE LOSS OF NATIONALITY PROVISIONS OF THE BILL, CHAIRMAN
DICKSTEIN SAID THAT "THIS BILL WOULD PUT AN END TO DUAL CITIZENSHIP AND
RELIEVE THIS COUNTRY OF THE RESPONSIBILITY OF THOSE WHO RESIDE IN
FOREIGN LANDS AND ONLY CLAIM CITIZENSHIP WHEN IT SERVES THEIR
PURPOSE."  ID., AT 11944.  REPRESENTATIVE REES OF KANSAS, WHO HAD
SERVED AS CHAIRMAN OF THE SUBCOMMITTEE THAT STUDIED THE DRAFT CODE,
SAID THAT CLARIFYING LEGISLATION WAS NEEDED, AMONG OTHER REASONS,
"BECAUSE OF THE DUTY OF THE GOVERNMENT TO PROTECT CITIZENS ABROAD." 
ID., AT 11947.  THE BILL PASSED THE HOUSE THAT SAME DAY.  ID., AT
11965. 

IN THE SENATE ALSO, AFTER A FAVORABLE REPORT FROM THE COMMITTEE ON
IMMIGRATION, THE BILL WAS DEBATED VERY BRIEFLY.  COMMITTEE AMENDMENTS
WERE ADOPTED MAKING THE PROVISION ON FOREIGN MILITARY SERVICE
APPLICABLE ONLY TO DUAL NATIONALS, MAKING TREASON AN ACT OF
EXPATRIATION AND PROVIDING A PROCEDURE BY WHICH PERSONS
ADMINISTRATIVELY DECLARED TO HAVE EXPATRIATED THEMSELVES MIGHT OBTAIN
JUDICIAL DETERMINATIONS OF CITIZENSHIP.  THE BILL AS AMENDED WAS
PASSED.  ID., AT 12817-12818.  THE HOUSE AGREED TO THESE AND ALL OTHER
AMENDMENTS ON WHICH THE SENATE INSISTED, ID., AT 13250, AND, ON OCTOBER
14, THE NATIONALITY ACT OF 1940 BECAME LAW.  54 STAT. 1137. 

THE LOSS OF NATIONALITY PROVISIONS OF THE ACT CONSTITUTED BUT A SMALL
PORTION OF A LONG OMNIBUS NATIONALITY STATUTE.  IT IS NOT SURPRISING,
THEN, THAT THEY RECEIVED AS LITTLE ATTENTION AS THEY DID IN DEBATE AND
HEARINGS AND THAT NOTHING SPECIFIC WAS SAID ABOUT THE CONSTITUTIONAL
BASIS FOR THEIR ENACTMENT.  THE BILL AS A WHOLE WAS REGARDED PRIMARILY
AS A CODIFICATION - AND ONLY SECONDARILY AS A REVISION - OF STATUTES
THAT HAD BEEN IN FORCE FOR MANY YEARS, SOME OF THEM, SUCH AS THE
NATURALIZATION PROVISIONS, HAVING THEIR BEGINNINGS IN LEGISLATION 150
YEARS OLD.  IT IS CLEAR THAT, AS IS SO OFTEN THE CASE IN MATTERS
AFFECTING THE CONDUCT OF FOREIGN RELATIONS, CONGRESS WAS GUIDED BY AND
RELIED VERY HEAVILY UPON THE ADVICE OF THE EXECUTIVE BRANCH, AND
PARTICULARLY THE STATE DEPARTMENT.  SEE, E.G., 86 CONG. REC. 11943
11944.  IN EFFECT, CONGRESS TREATED THE CABINET COMMITTEE AS IT
NORMALLY DOES ITS OWN COMMITTEES CHARGED WITH STUDYING A PROBLEM AND
FORMULATING LEGISLATION.  THESE CONSIDERATIONS EMPHASIZE THE
IMPORTANCE, IN THE INQUIRY INTO CONGRESSIONAL POWER IN THIS FIELD, OF
KEEPING IN MIND THE HISTORICAL BACKGROUND OF THE CHALLENGED
LEGISLATION, FOR HISTORY WILL DISCLOSE THE PURPOSE FAIRLY ATTRIBUTABLE
TO CONGRESS IN ENACTING THE STATUTE. 

THE FIRST STEP IN OUR INQUIRY MUST BE TO ANSWER THE QUESTION:  WHAT
IS THE SOURCE OF POWER ON WHICH CONGRESS MUST BE ASSUMED TO HAVE
DRAWN?  ALTHOUGH THERE IS IN THE CONSTITUTION NO SPECIFIC GRANT TO
CONGRESS OF POWER TO ENACT LEGISLATION FOR THE EFFECTIVE REGULATION OF
FOREIGN AFFAIRS, THERE CAN BE NO DOUBT OF THE EXISTENCE OF THIS POWER
IN THE LAW-MAKING ORGAN OF THE NATION.  SEE UNITED STATES V. CURTISS
WRIGHT EXPORT CORP., 299 U.S. 304, 318; MACKENZIE V. HARE, 239 U.S.
299, 311-312.  THE STATES THAT JOINED TOGETHER TO FORM A SINGLE NATION
AND TO CREATE, THROUGH THE CONSTITUTION, A FEDERAL GOVERNMENT TO
CONDUCT THE AFFAIRS OF THAT NATION MUST BE HELD TO HAVE GRANTED THAT
GOVERNMENT THE POWERS INDISPENSABLE TO ITS FUNCTIONING EFFECTIVELY IN
THE COMPANY OF SOVEREIGN NATIONS.  THE GOVERNMENT MUST BE ABLE NOT ONLY
TO DEAL AFFIRMATIVELY WITH FOREIGN NATIONS, AS IT DOES THROUGH THE
MAINTENANCE OF DIPLOMATIC RELATIONS WITH THEM AND THE PROTECTION OF
AMERICAN CITIZENS SOJOURNING WITHIN THEIR TERRITORIES.  IT MUST ALSO BE
ABLE TO REDUCE TO A MINIMUM THE FRICTIONS THAT ARE UNAVOIDABLE IN A
WORLD OF SOVEREIGNS SENSITIVE IN MATTERS TOUCHING THEIR DIGNITY AND
INTERESTS. 

THE INFERENCE IS FAIRLY TO BE DRAWN FROM THE CONGRESSIONAL HISTORY OF
THE NATIONALITY ACT OF 1940, READ IN LIGHT OF THE HISTORICAL BACKGROUND
OF EXPATRIATION IN THIS COUNTRY, THAT, IN MAKING VOTING IN FOREIGN
ELECTIONS (AMONG OTHER BEHAVIOR) AN ACT OF EXPATRIATION, CONGRESS WAS
SEEKING TO EFFECTUATE ITS POWER TO REGULATE FOREIGN AFFAIRS.  THE
LEGISLATORS, COUNSELED BY THOSE ON WHOM THEY RIGHTLY RELIED FOR ADVICE,
WERE CONCERNED ABOUT ACTIONS BY CITIZENS IN FOREIGN COUNTRIES THAT
CREATE PROBLEMS OF PROTECTION AND ARE INCONSISTENT WITH AMERICAN
ALLEGIANCE.  MOREOVER, WE CANNOT IGNORE THE FACT THAT EMBARRASSMENTS IN
THE CONDUCT OF FOREIGN RELATIONS WERE OF PRIMARY CONCERN IN THE
CONSIDERATION OF THE ACT OF 1907, OF WHICH THE LOSS OF NATIONALITY
PROVISIONS OF THE 1940 ACT ARE A CODIFICATION AND EXPANSION. 

BROAD AS THE POWER IN THE NATIONAL GOVERNMENT TO REGULATE FOREIGN
AFFAIRS MUST NECESSARILY BE, IT IS NOT WITHOUT LIMITATION.  THE
RESTRICTIONS CONFINING CONGRESS IN THE EXERCISE OF ANY OF THE POWERS
EXPRESSLY DELEGATED TO IT IN THE CONSTITUTION APPLY WITH EQUAL VIGOR
WHEN THAT BODY SEEKS TO REGULATE OUR RELATIONS WITH OTHER NATIONS. 
SINCE CONGRESS MAY NOT ACT ARBITRARILY, A RATIONAL NEXUS MUST EXIST
BETWEEN THE CONTENT OF A SPECIFIC POWER IN CONGRESS AND THE ACTION OF
CONGRESS IN CARRYING THAT POWER INTO EXECUTION.  MORE SIMPLY STATED,
THE MEANS - IN THIS CASE, WITHDRAWAL OF CITIZENSHIP - MUST BE
REASONABLY RELATED TO THE END - HERE, REGULATION OF FOREIGN AFFAIRS. 
THE INQUIRY - AND, IN THE CASE BEFORE US, THE SOLE INQUIRY - INTO WHICH
THIS COURT MUST ENTER IS WHETHER OR NOT CONGRESS MAY HAVE CONCLUDED NOT
UNREASONABLY THAT THERE IS A RELEVANT CONNECTION BETWEEN THIS
FUNDAMENTAL SOURCE OF POWER AND THE ULTIMATE LEGISLATIVE ACTION. 
(FN3) 

OUR STARTING POINT IS TO ASCERTAIN WHETHER THE POWER OF CONGRESS TO
DEAL WITH FOREIGN RELATIONS MAY REASONABLY BE DEEMED TO INCLUDE A POWER
TO DEAL GENERALLY WITH THE ACTIVE PARTICIPATION, BY WAY OF VOTING, OF
AMERICAN CITIZENS IN FOREIGN POLITICAL ELECTIONS.  EXPERIENCE AMPLY
ATTESTS THAT, IN THIS DAY OF EXTENSIVE INTERNATIONAL TRAVEL, RAPID
COMMUNICATION AND WIDESPREAD USE OF PROPAGANDA, THE ACTIVITIES OF THE
CITIZENS OF ONE NATION WHEN IN ANOTHER COUNTRY CAN EASILY CAUSE SERIOUS
EMBARRASSMENTS TO THE GOVERNMENT OF THEIR OWN COUNTRY AS WELL AS TO
THEIR FELLOW CITIZENS.  WE CANNOT DENY TO CONGRESS THE REASONABLE
BELIEF THAT THESE DIFFICULTIES MIGHT WELL BECOME ACUTE, TO THE POINT OF
JEOPARDIZING THE SUCCESSFUL CONDUCT OF INTERNATIONAL RELATIONS, WHEN A
CITIZEN OF ONE COUNTRY CHOOSES TO PARTICIPATE IN THE POLITICAL OR
GOVERNMENTAL AFFAIRS OF ANOTHER COUNTRY.  THE CITIZEN MAY BY HIS ACTION
UNWITTINGLY PROMOTE OR ENCOURAGE A COURSE OF CONDUCT CONTRARY TO THE
INTERESTS OF HIS OWN GOVERNMENT; MOREOVER, THE PEOPLE OR GOVERNMENT OF
THE FOREIGN COUNTRY MAY REGARD HIS ACTION TO BE THE ACTION OF HIS
GOVERNMENT, OR AT LEAST AS A REFLECTION IF NOT AN EXPRESSION OF ITS
POLICY.  CF. PREUSS, INTERNATIONAL RESPONSIBILITY FOR HOSTILE
PROPAGANDA AGAINST FOREIGN STATES, 28 AM. J. INT'L L. 649, 650. 

IT FOLLOWS THAT SUCH ACTIVITY IS REGULABLE BY CONGRESS UNDER ITS
POWER TO DEAL WITH FOREIGN AFFAIRS.  AND IT MUST BE REGULABLE ON MORE
THAN AN AD HOC BASIS.  THE SUBTLE INFLUENCES AND REPERCUSSIONS WITH
WHICH THE GOVERNMENT MUST DEAL MAKE IT REASONABLE FOR THE GENERALIZED,
ALTHOUGH CLEARLY LIMITED, CATEGORY OF "POLITICAL ELECTION" TO BE USED
IN DEFINING THE AREA OF REGULATION.  THAT DESCRIPTION CARRIES WITH IT
THE SCOPE AND MEANING OF ITS CONTEXT AND PURPOSE; CLASSES OF ELECTIONS
NONPOLITICAL IN THE COLLOQUIAL SENSE - AS TO WHICH PARTICIPATION BY
AMERICANS COULD NOT POSSIBLY HAVE ANY EFFECT ON THE RELATIONS OF THE
UNITED STATES WITH ANOTHER COUNTRY ARE EXCLUDED BY ANY RATIONAL
CONSTRUCTION OF THE PHRASE.  THE CLASSIFICATION THAT CONGRESS HAS
ADOPTED CANNOT BE SAID TO BE INAPPROPRIATE TO THE DIFFICULTIES TO BE
DEALT WITH.  SPECIFIC APPLICATIONS ARE OF COURSE OPEN TO JUDICIAL
CHALLENGE, AS ARE OTHER GENERAL CATEGORIES IN THE LAW, BY A "GRADUAL
PROCESS OF JUDICIAL INCLUSION AND EXCLUSION."  DAVIDSON V. NEW ORLEANS,
96 U.S. 97, 104.  (FN4) 

THE QUESTION MUST FINALLY BE FACED WHETHER, GIVEN THE POWER TO ATTACH
SOME SORT OF CONSEQUENCE TO VOTING IN A FOREIGN POLITICAL ELECTION,
CONGRESS, ACTING UNDER THE NECESSARY AND PROPER CLAUSE, ART. I, SEC. 8,
CL. 18, COULD ATTACH LOSS OF NATIONALITY TO IT.  IS THE MEANS,
WITHDRAWAL OF CITIZENSHIP, REASONABLY CALCULATED TO EFFECT THE END THAT
IS WITHIN THE POWER OF CONGRESS TO ACHIEVE, THE AVOIDANCE OF
EMBARRASSMENT IN THE CONDUCT OF OUR FOREIGN RELATIONS ATTRIBUTABLE TO
VOTING BY AMERICAN CITIZENS IN FOREIGN POLITICAL ELECTIONS?  THE
IMPORTANCE AND EXTREME DELICACY OF THE MATTERS HERE SOUGHT TO BE
REGULATED DEMAND THAT CONGRESS BE PERMITTED AMPLE SCOPE IN SELECTING
APPROPRIATE MODES FOR ACCOMPLISHING ITS PURPOSE.  THE CRITICAL
CONNECTION BETWEEN THIS CONDUCT AND LOSS OF CITIZENSHIP IS THE FACT
THAT IT IS THE POSSESSION OF AMERICAN CITIZENSHIP BY A PERSON
COMMITTING THE ACT THAT MAKES THE ACT POTENTIALLY EMBARRASSING TO THE
AMERICAN GOVERNMENT AND PREGNANT WITH THE POSSIBILITY OF EMBROILING
THIS COUNTRY IN DISPUTES WITH OTHER NATIONS.  THE TERMINATION OF
CITIZENSHIP TERMINATES THE PROBLEM.  MOREOVER, THE FACT IS NOT WITHOUT
SIGNIFICANCE THAT CONGRESS HAS INTERPRETED THIS CONDUCT, NOT
IRRATIONALLY, AS IMPORTING NOT ONLY SOMETHING LESS THAN COMPLETE AND
UNSWERVING ALLEGIANCE TO THE UNITED STATES BUT ALSO ELEMENTS OF AN
ALLEGIANCE TO ANOTHER COUNTRY IN SOME MEASURE, AT LEAST, INCONSISTENT
WITH AMERICAN CITIZENSHIP. 

OF COURSE, CONGRESS CAN ATTACH LOSS OF CITIZENSHIP ONLY AS A
CONSEQUENCE OF CONDUCT ENGAGED IN VOLUNTARILY.  SEE MACKENZIE V. HARE,
239 U.S. 299, 311-312.  BUT IT WOULD BE A MOCKERY OF THIS COURT'S
DECISIONS TO SUGGEST THAT A PERSON, IN ORDER TO LOSE HIS CITIZENSHIP,
MUST INTEND OR DESIRE TO DO SO.  THE COURT ONLY A FEW YEARS AGO SAID OF
THE PERSON HELD TO HAVE LOST HER CITIZENSHIP IN MACKENZIE V. HARE,
SUPRA:  "THE WOMAN HAD NOT INTENDED TO GIVE UP HER AMERICAN
CITIZENSHIP."  SAVORGNAN V. UNITED STATES, 338 U.S. 491, 501.  AND THE
LATTER CASE SUSTAINED THE DENATIONALIZATION OF MRS. SAVORGNAN ALTHOUGH
IT WAS NOT DISPUTED THAT SHE "HAD NO INTENTION OF ENDANGERING HER
AMERICAN CITIZENSHIP OR OF RENOUNCING HER ALLEGIANCE TO THE UNITED
STATES."  338 U.S., AT 495.  (FN5)  WHAT BOTH WOMEN DID DO VOLUNTARILY
WAS TO ENGAGE IN CONDUCT TO WHICH ACTS OF CONGRESS ATTACHED THE
CONSEQUENCE OF DENATIONALIZATION IRRESPECTIVE OF - AND, IN THOSE CASES,
ABSOLUTELY CONTRARY TO - THE INTENTIONS AND DESIRES OF THE
INDIVIDUALS.  THOSE TWO CASES MEAN NOTHING - INDEED, THEY ARE DECEPTIVE
- IF THEIR ESSENTIAL SIGNIFICANCE IS NOT REJECTION OF THE NOTION THAT
THE POWER OF CONGRESS TO TERMINATE CITIZENSHIP DEPENDS UPON THE
CITIZEN'S ASSENT.  IT IS A DISTORTION OF THOSE CASES TO EXPLAIN THEM
AWAY ON A THEORY THAT A CITIZEN'S ASSENT TO DENATIONALIZATION MAY BE
INFERRED FROM HIS HAVING ENGAGED IN CONDUCT THAT AMOUNTS TO AN
"ABANDONMENT OF CITIZENSHIP" OR A "TRANSFER OF ALLEGIANCE."  CERTAINLY
AN ACT OF CONGRESS CANNOT BE INVALIDATED BY RESTING DECISIVE PRECEDENTS
ON A GROSS FICTION - A FICTION BASELESS IN LAW AND CONTRADICTED BY THE
FACTS OF THE CASES. 

IT CANNOT BE SAID, THEN, THAT CONGRESS ACTED WITHOUT WARRANT WHEN,
PURSUANT TO ITS POWER TO REGULATE THE RELATIONS OF THE UNITED STATES
WITH FOREIGN COUNTRIES, IT PROVIDED THAT ANYONE WHO VOTES IN A FOREIGN
ELECTION OF SIGNIFICANCE POLITICALLY IN THE LIFE OF ANOTHER COUNTRY
SHALL LOSE HIS AMERICAN CITIZENSHIP.  TO DENY THE POWER OF CONGRESS TO
ENACT THE LEGISLATION CHALLENGED HERE WOULD BE TO DISREGARD THE
CONSTITUTIONAL ALLOCATION OF GOVERNMENTAL FUNCTIONS THAT IT IS THIS
COURT'S SOLEMN DUTY TO GUARD. 

BECAUSE OF OUR VIEW CONCERNING THE POWER OF CONGRESS WITH RESPECT TO
SEC. 401(E) OF THE NATIONALITY ACT OF 1940, WE FIND IT UNNECESSARY TO
CONSIDER - INDEED, IT WOULD BE IMPROPER FOR US TO ADJUDICATE - THE
CONSTITUTIONALITY OF SEC. 401(J), AND WE EXPRESSLY DECLINE TO RULE ON
THAT IMPORTANT QUESTION AT THIS TIME.  JUDGMENT AFFIRMED. 

FN1  INCORPORATED INTO SEC. 349 OF THE IMMIGRATION AND NATIONALITY
ACT OF 1952, 66 STAT. 163, 267-268, 8 U.S.C. SEC. 1481. 

FN2  PETITIONER PROCEEDED UNDER SEC. 503 OF THE NATIONALITY ACT OF
1940, 54 STAT. 1137, 1171, WHICH AUTHORIZES AN INDIVIDUAL TO BRING SUIT
FOR A DECLARATION OF NATIONALITY IN A UNITED STATES DISTRICT COURT
AGAINST THE HEAD OF ANY GOVERNMENT AGENCY THAT DENIES HIM A RIGHT OR
PRIVILEGE OF UNITED STATES NATIONALITY ON THE GROUND THAT HE IS NOT A
UNITED STATES NATIONAL.  THE JUDICIAL HEARING IN SUCH AN ACTION IS A
TRIAL DE NOVO IN WHICH THE INDIVIDUAL NEED MAKE ONLY A PRIMA FACIE CASE
ESTABLISHING HIS CITIZENSHIP BY BIRTH OR NATURALIZATION.  SEE PANDOLFO
V. ACHESON, 202 F.2D 38, 40-41.  THE GOVERNMENT MUST PROVE THE ACT OF
EXPATRIATION ON WHICH THE DENIAL WAS BASED BY "'CLEAR, UNEQUIVOCAL, AND
CONVINCING' EVIDENCE WHICH DOES NOT LEAVE 'THE ISSUE IN DOUBT.'" 
GONZALES V. LANDON, 350 U.S. 920; SEE SCHNEIDERMAN V. UNITED STATES,
320 U.S. 118, 158. 

FN3  THE PROVISION OF THE FOURTEENTH AMENDMENT THAT "ALL PERSONS BORN
OR NATURALIZED IN THE UNITED STATES, AND SUBJECT TO THE JURISDICTION
THEREOF, ARE CITIZENS OF THE UNITED STATES  ...  "  SETS FORTH THE TWO
PRINCIPAL MODES (BUT BY NO MEANS THE ONLY ONES) FOR ACQUIRING
CITIZENSHIP.  THUS, IN UNITED STATES V. WONG KIM ARK, 169 U.S. 649
(CHIEF JUSTICE FULLER AND MR. JUSTICE HARLAN DISSENTING), IT WAS HELD
THAT A PERSON OF CHINESE PARENTAGE BORN IN THIS COUNTRY WAS AMONG "ALL
PERSONS BORN  ...  IN THE UNITED STATES" AND THEREFORE A CITIZEN TO
WHOM THE CHINESE EXCLUSION ACTS DID NOT APPLY.  BUT THERE IS NOTHING IN
THE TERMS, THE CONTEXT, THE HISTORY OR THE MANIFEST PURPOSE OF THE
FOURTEENTH AMENDMENT TO WARRANT DRAWING FROM IT A RESTRICTION UPON THE
POWER OTHERWISE POSSESSED BY CONGRESS TO WITHDRAW CITIZENSHIP.  THE
LIMIT OF THE OPERATION OF THAT PROVISION WAS CLEARLY ENUNCIATED IN
PERKINS V. ELG, 307 U.S. 325, 329:  "AS AT BIRTH SHE BECAME A CITIZEN
OF THE UNITED STATES, THAT CITIZENSHIP MUST BE DEEMED TO CONTINUE
UNLESS SHE HAS BEEN DEPRIVED OF IT THROUGH THE OPERATION OF A TREATY OR
CONGRESSIONAL ENACTMENT OR BY HER VOLUNTARY ACTION IN CONFORMITY WITH
APPLICABLE LEGAL PRINCIPLES." 

FN4  PETITIONER IN THE CASE BEFORE US DID NOT OBJECT TO THE
CHARACTERIZATION OF THE ELECTION IN WHICH HE VOTED AS A "POLITICAL
ELECTION."  IT MAY BE NOTED THAT, IN ORAL ARGUMENT, COUNSEL FOR THE
PETITIONER EXPRESSED HIS UNDERSTANDING THAT THE ELECTION INVOLVED WAS
THE ELECTION FOR MEXICO'S PRESIDENT. 

FN5  THE DISTRICT COURT IN SAVORGNAN STATED:  "I AM SATISFIED FROM
THE PROOFS SUBMITTED THAT AT THE TIME PLAINTIFF SIGNED EXHIBITS 1 AND 2
(APPLICATION FOR ITALIAN CITIZENSHIP AND OATH OF ALLEGIANCE TO ITALIAN
GOVERNMENT) SHE HAD NO PRESENT OR FIXED INTENTION IN HER MIND TO
EXPATRIATE HERSELF."  73 F. SUPP. 109, 111. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

THE CONGRESS OF THE UNITED STATES HAS DECREED THAT A CITIZEN OF THE
UNITED STATES SHALL LOSE HIS CITIZENSHIP BY PERFORMING CERTAIN
DESIGNATED ACTS.  (FN1)  THE PETITIONER IN THIS CASE, A NATIVE-BORN
AMERICAN, (FN2) IS DECLARED TO HAVE LOST HIS CITIZENSHIP BY VOTING IN A
FOREIGN ELECTION.  (FN3)  WHETHER THIS FORFEITURE OF CITIZENSHIP
EXCEEDS THE BOUNDS OF THE CONSTITUTION IS THE ISSUE BEFORE US.  THE
PROBLEM IS FUNDAMENTAL AND MUST BE RESOLVED UPON FUNDAMENTAL
CONSIDERATIONS. 

GENERALLY, WHEN CONGRESSIONAL ACTION IS CHALLENGED, CONSTITUTIONAL
AUTHORITY IS FOUND IN THE EXPRESS AND IMPLIED POWERS WITH WHICH THE
NATIONAL GOVERNMENT HAS BEEN INVESTED OR IN THOSE INHERENT POWERS THAT
ARE NECESSARY ATTRIBUTES OF A SOVEREIGN STATE.  THE SWEEP OF THOSE
POWERS IS SURELY BROAD.  IN APPROPRIATE CIRCUMSTANCES, THEY ARE
ADEQUATE TO TAKE AWAY LIFE ITSELF.  THE INITIAL QUESTION HERE IS
WHETHER CITIZENSHIP IS SUBJECT TO THE EXERCISE OF THESE GENERAL POWERS
OF GOVERNMENT. 

WHAT IS THIS GOVERNMENT, WHOSE POWER IS HERE BEING ASSERTED?  AND
WHAT IS THE SOURCE OF THAT POWER?  THE ANSWERS ARE THE FOUNDATION OF
OUR REPUBLIC.  TO SECURE THE INALIENABLE RIGHTS OF THE INDIVIDUAL,
"GOVERNMENTS ARE INSTITUTED AMONG MEN, DERIVING THEIR JUST POWERS FROM
THE CONSENT OF THE GOVERNED."  I DO NOT BELIEVE THE PASSAGE OF TIME HAS
LESSENED THE TRUTH OF THIS PROPOSITION.  IT IS BASIC TO OUR FORM OF
GOVERNMENT.  THIS GOVERNMENT WAS BORN OF ITS CITIZENS, IT MAINTAINS
ITSELF IN A CONTINUING RELATIONSHIP WITH THEM, AND, IN MY JUDGMENT, IT
IS WITHOUT POWER TO SEVER THE RELATIONSHIP THAT GIVES RISE TO ITS
EXISTENCE.  I CANNOT BELIEVE THAT A GOVERNMENT CONCEIVED IN THE SPIRIT
OF OURS WAS ESTABLISHED WITH POWER TO TAKE FROM THE PEOPLE THEIR MOST
BASIC RIGHT. 

CITIZENSHIP IS MAN'S BASIC RIGHT FOR IT IS NOTHING LESS THAN THE
RIGHT TO HAVE RIGHTS.  REMOVE THIS PRICELESS POSSESSION AND THERE
REAMINS A STATELESS PERSON, DISGRACED AND DEGRADED IN THE EYES OF HIS
COUNTRYMEN.  HE HAS NO LAWFUL CLAIM TO PROTECTION FROM ANY NATION, AND
NO NATION MAY ASSERT RIGHTS ON HIS BEHALF.  (FN4)  HIS VERY EXISTENCE
IS AT THE SUFFERANCE OF THE STATE WITHIN WHOSE BORDERS HE HAPPENS TO
BE.  IN THIS COUNTRY THE EXPATRIATE WOULD PRESUMABLY ENJOY, AT MOST,
ONLY THE LIMITED RIGHTS AND PRIVILEGES OF ALIENS, (FN5) AND LIKE THE
ALIEN HE MIGHT EVEN BE SUBJECT TO DEPORTATION AND THEREBY DEPRIVED OF
THE RIGHT TO ASSERT ANY RIGHTS.  (FN6)  THIS GOVERNMENT WAS NOT
ESTABLISHED WITH POWER TO DECREE THIS FATE. 

THE PEOPLE WHO CREATED THIS GOVERNMENT ENDOWED IT WITH BROAD POWERS. 
THEY CREATED A SOVEREIGN STATE WITH POWER TO FUNCTION AS A
SOVEREIGNTY.  BUT THE CITIZENS THEMSELVES ARE SOVEREIGN, AND THEIR
CITIZENSHIP IS NOT SUBJECT TO THE GENERAL POWERS OF THEIR GOVERNMENT. 
WHATEVER MAY BE THE SCOPE OF ITS POWERS TO REGULATE THE CONDUCT AND
AFFAIRS OF ALL PERSONS WITHIN ITS JURISDICTION, A GOVERNMENT OF THE
PEOPLE CANNOT TAKE AWAY THEIR CITIZENSHIP SIMPLY BECAUSE ONE BRANCH OF
THAT GOVERNMENT CAN BE SAID TO HAVE A CONCEIVABLY RATIONAL BASIS FOR
WANTING TO DO SO. 

THE BASIC CONSTITUTIONAL PROVISION CRYSTALLIZING THE RIGHT OF
CITIZENSHIP IS THE FIRST SENTENCE OF SECTION ONE OF THE FOURTEENTH
AMENDMENT.  IT IS THERE PROVIDED THAT "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." 
UNITED STATES CITIZENSHIP IS THUS THE CONSTITUTIONAL BIRTHRIGHT OF
EVERY PERSON BORN IN THIS COUNTRY.  THIS COURT HAS DECLARED THAT
CONGRESS IS WITHOUT POWER TO ALTER THIS EFFECT OF BIRTH IN THE UNITED
STATES, UNITED STATES V. WONG KIM ARK, 169 U.S. 649, 703.  THE
CONSTITUTION ALSO PROVIDES THAT CITIZENSHIP CAN BE BESTOWED UNDER A
"UNIFORM RULE OF NATURALIZATION," (FN7) BUT THERE IS NO CORRESPONDING
PROVISION AUTHORIZING DIVESTMENT.  OF COURSE, NATURALIZATION UNLAWFULLY
PROCURED CAN BE SET ASIDE.  (FN8)  BUT APART FROM THIS CIRCUMSTANCE,
THE STATUS OF THE NATURALIZED CITIZEN IS SECURE.  AS THIS COURT STATED
IN OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738, 827: 

"THE NATURALIZED CITIZEN BECOMES A MEMBER OF THE SOCIETY, POSSESSING
ALL THE RIGHTS OF A NATIVE CITIZEN, AND STANDING, IN THE VIEW OF THE
CONSTITUTION, ON THE FOOTING OF A NATIVE.  THE CONSTITUTION DOES NOT
AUTHORIZE CONGRESS TO ENLARGE OR ABRIDGE THOSE RIGHTS.  THE SIMPLE
POWER OF THE NATIONAL LEGISLATURE, IS TO PRESCRIBE A UNIFORM RULE OF
NATURALIZATION, AND THE EXERCISE OF THIS POWER EXHAUSTS IT, SO FAR AS
RESPECTS THE INDIVIDUAL." 

UNDER OUR FORM OF GOVERNMENT, AS ESTABLISHED BY THE CONSTITUTION, THE
CITIZENSHIP OF THE LAWFULLY NATURALIZED AND THE NATIVE-BORN CANNOT BE
TAKEN FROM THEM. 

THERE IS NO QUESTION THAT CITIZENSHIP MAY BE VOLUNTARILY
RELINQUISHED.  THE RIGHT OF VOLUNTARY EXPATRIATION WAS RECOGNIZED BY
CONGRESS IN 1868.  (FN9)  CONGRESS DECLARED THAT "THE RIGHT OF
EXPATRIATION IS A NATURAL AND INHERENT RIGHT OF ALL PEOPLE  ...  ." 
(FN10)  ALTHOUGH THE PRIMARY PURPOSE OF THIS DECLARATION WAS THE
PROTECTION OF OUR NATURALIZED CITIZENS FROM THE CLAIMS OF THEIR
COUNTRIES OF ORIGIN, THE LANGUAGE WAS PROPERLY REGARDED AS ESTABLISHING
THE RECIPROCAL RIGHT OF AMERICAN CITIZENS TO ABJURE THEIR ALLEGIANCE. 
(FN11)  IN THE EARLY DAYS OF THIS NATION THE RIGHT OF EXPATRIATION HAD
BEEN A MATTER OF CONTROVERSY.  THE COMMON-LAW DOCTRINE OF PERPETUAL
ALLEGIANCE WAS EVIDENT IN THE OPINIONS OF THIS COURT.  (FN12)  AND,
ALTHOUGH IMPRESSMENT OF NATURALIZED AMERICAN SEAMEN OF BRITISH BIRTH
WAS A CAUSE OF THE WAR OF 1812, THE EXECUTIVE OFFICIALS OF THIS
GOVERNMENT WERE NOT UNWAVERING IN THEIR SUPPORT OF THE RIGHT OF
EXPATRIATION.  (FN13)  PRIOR TO 1868 ALL EFFORTS TO OBTAIN
CONGRESSIONAL ENACTMENTS CONCERNING EXPATRIATION FAILED.  (FN14)  THE
DOCTRINE OF PERPETUAL ALLEGIANCE, HOWEVER, WAS SO ILL-SUITED TO THE
GROWING NATION WHOSE DOORS WERE OPEN TO IMMIGRANTS FROM ABROAD THAT IT
COULD NOT LAST.  NINE YEARS BEFORE CONGRESS ACTED ATTORNEY GENERAL
BLACK STATED THE AMERICAN POSITION IN A NOTABLE OPINION:  (FN15) 

"HERE, IN THE UNITED STATES, THE THOUGHT OF GIVING IT (THE RIGHT OF
EXPATRIATION) UP CANNOT BE ENTERTAINED FOR A MOMENT.  UPON THAT
PRINCIPLE THIS COUNTRY WAS POPULATED.  WE OWE TO IT OUR EXISTENCE AS A
NATION.  EVER SINCE OUR INDEPENDENCE WE HAVE UPHELD AND MAINTAINED IT
BY EVERY FORM OF WORDS AND ACTS.  WE HAVE CONSTANTLY PROMISED FULL AND
COMPLETE PROTECTION TO ALL PERSONS WHO SHOULD COME HERE AND SEEK IT BY
RENOUNCING THEIR NATURAL ALLEGIANCE AND TRANSFERRING THEIR FEALTY TO
US.  WE STAND PLEDGED TO IT IN THE FACE OF THE WHOLE WORLD." 

IT HAS LONG BEEN RECOGNIZED THAT CITIZENSHIP MAY NOT ONLY BE
VOLUNTARILY RENOUNCED THROUGH EXERCISE OF THE RIGHT OF EXPATRIATION BUT
ALSO BY OTHER ACTIONS IN DEROGATION OF UNDIVIDED ALLEGIANCE TO THIS
COUNTRY.  (FN16)  WHILE THE ESSENTIAL QUALITIES OF THE CITIZEN-STATE
RELATIONSHIP UNDER OUR CONSTITUTION PRECLUDE THE EXERCISE OF
GOVERNMENTAL POWER TO DIVEST UNITED STATES CITIZENSHIP, THE
ESTABLISHMENT OF THAT RELATIONSHIP DID NOT IMPAIR THE PRINCIPLE THAT
CONDUCT OF A CITIZEN SHOWING A VOLUNTARY TRANSFER OF ALLEGIANCE IS AN
ABANDONMENT OF CITIZENSHIP.  NEARLY ALL SOVEREIGNTIES RECOGNIZE THAT
ACQUISITION OF FOREIGN NATIONALITY ORDINARILY SHOWS A RENUNCIATION OF
CITIZENSHIP.  (FN17)  NOR IS THIS THE ONLY ACT BY WHICH THE CITIZEN MAY
SHOW A VOLUNTARY ABANDONMENT OF HIS CITIZENSHIP.  ANY ACTION BY WHICH
HE MANIFESTS ALLEGIANCE TO A FOREIGN STATE MAY BE SO INCONSISTENT WITH
THE RETENTION OF CITIZENSHIP AS TO RESULT IN LOSS OF THAT STATUS. 
(FN18)  IN RECOGNIZING THE CONSEQUENCE OF SUCH ACTION, THE GOVERNMENT
IS NOT TAKING AWAY UNITED STATES CITIZENSHIP TO IMPLEMENT ITS GENERAL
REGULATORY POWERS, FOR, AS PREVIOUSLY INDICATED, IN MY JUDGMENT
CITIZENSHIP IS IMMUNE FROM DIVESTMENT UNDER THESE POWERS.  RATHER, THE
GOVERNMENT IS SIMPLY GIVING FORMAL RECOGNITION TO THE INEVITABLE
CONSEQUENCE OF THE CITIZEN'S OWN VOLUNTARY SURRENDER OF HIS
CITIZENSHIP.    TWICE BEFORE, THIS COURT HAS RECOGNIZED THAT CERTAIN
VOLUNTARY CONDUCT RESULTS IN AN IMPAIRMENT OF THE STATUS OF
CITIZENSHIP.  IN SAVORGNAN V. UNITED STATES, 338 U.S. 491, AN AMERICAN
CITIZEN HAD RENOUNCED HER CITIZENSHIP AND ACQUIRED THAT OF A FOREIGN
STATE.  THIS COURT AFFIRMED HER LOSS OF CITIZENSHIP, RECOGNIZING THAT
"FROM THE BEGINNING, ONE OF THE MOST OBVIOUS AND EFFECTIVE FORMS OF
EXPATRIATION HAS BEEN THAT OF NATURALIZATION UNDER THE LAWS OF ANOTHER
NATION."  338 U.S., AT 498.  MACKENZIE V. HARE, 239 U.S. 299, INVOLVED
AN AMERICAN WOMAN WHO HAD MARRIED A BRITISH NATIONAL.  THAT DECISION
SUSTAINED AN ACT OF CONGRESS WHICH PROVIDED THAT HER CITIZENSHIP WAS
SUSPENDED FOR THE DURATION OF HER MARRIAGE.  SINCE IT IS SOMETIMES
ASSERTED THAT THIS CASE IS AUTHORITY FOR THE BROAD PROPOSITION THAT
CONGRESS CAN TAKE AWAY UNITED STATES CITIZENSHIP, IT IS NECESSARY TO
EXAMINE PRECISELY WHAT THE CASE INVOLVED. 

THE STATUTE WHICH THE COURT THERE SUSTAINED DID NOT DIVEST MRS.
MACKENZIE OF HER CITIZENSHIP.  (FN19)  IT PROVIDED THAT "ANY AMERICAN
WOMAN WHO MARRIES A FOREIGNER SHALL TAKE THE NATIONALITY OF HER
HUSBAND."  (FN20)  "AT THE TERMINATION OF THE MARITAL RELATION," THE
STATUTE CONTINUES, "SHE MAY RESUME HER AMERICAN CITIZENSHIP  ...  ." 
HER CITIZENSHIP WAS NOT TAKEN AWAY; IT WAS HELD IN ABEYANCE. 

THIS VIEW OF THE STATUTE IS BORNE OUT BY ITS HISTORY.  THE 1907 ACT
WAS PASSED AFTER THE DEPARTMENT OF STATE HAD RESPONDED TO REQUESTS FROM
BOTH HOUSES OF CONGRESS FOR A COMPREHENSIVE STUDY OF OUR OWN AND
FOREIGN NATIONALITY LAWS, TOGETHER WITH RECOMMENDATIONS FOR NEW
LEGISLATION.  (FN21) ONE OF THOSE RECOMMENDATIONS, SUBSTANTIALLY
INCORPORATED IN THE 1907 ACT, WAS AS FOLLOWS:  (FN22) 

"THAT AN AMERICAN WOMAN WHO MARRIES A FOREIGNER SHALL TAKE DURING
COVERTURE THE NATIONALITY OF HER HUSBAND; BUT UPON TERMINATION OF THE
MARITAL RELATION BY DEATH OR ABSOLUTE DIVORCE SHE MAY REVERT TO HER
AMERICAN CITIZENSHIP BY REGISTERING WITHIN ONE YEAR AS AN AMERICAN
CITIZEN AT THE MOST CONVENIENT AMERICAN CONSULATE OR BY RETURNING TO
RESIDE IN THE UNITED STATES IF SHE IS ABROAD; OR IF SHE IS IN THE
UNITED STATES BY CONTINUING TO RESIDE THEREIN." 

THIS PRINCIPLE OF "REVERSION OF CITIZENSHIP" WAS A FAMILIAR ONE IN
OUR OWN LAW, (FN23) AND THE LAW OF FOREIGN STATES.  (FN24)  THE STATUTE
WERE MERELY DECLARATIVE OF THE LAW AS IT WAS THEN UNDERSTOOD.  (FN25)
ALTHOUGH THE OPINION IN MACKENZIE V. HARE CONTAINS SOME REFERENCE TO
TERMINATION OF CITIZENSHIP, THE REASONING IS CONSISTENT WITH THE TERMS
OF THE STATUTE THAT WAS UPHELD.  THUS, THE COURT SPEAKS OF MRS.
MACKENZIE'S HAVING ENTERED A "CONDITION," 239 U.S., AT 312, NOT AS
HAVING SURRENDERED HER CITIZENSHIP.  "THEREFORE," THE COURT CONCLUDES,
"AS LONG AS THE RELATION LASTS IT IS MADE TANTAMOUNT TO EXPATRIATION." 
IBID. 

A DECISION SUSTAINING A STATUTE THAT RELIES UPON THE UNITY OF
INTEREST IN THE MARITAL COMMUNITY - A COMMON-LAW FICTION NOW LARGELY A
RELIC OF THE PAST - MAY ITSELF BE OUTDATED.  (FN26)  HOWEVER THAT MAY
BE, THE FOREGOING DEMONSTRATES THAT MACKENZIE V. HARE SHOULD NOT BE
UNDERSTOOD TO SANCTION A POWER TO DIVEST CITIZENSHIP.  RATHER THIS
CASE, LIKE SAVORGNAN, SIMPLE ACKNOWLEDGES THAT UNITED STATES
CITIZENSHIP CAN BE ABANDONED, TEMPORARILY OR PERMANENTLY, BY CONDUCT
SHOWING A VOLUNTARY TRANSFER OF ALLEGIANCE TO ANOTHER COUNTRY. 

THE BACKGROUND OF THE CONGRESSIONAL ENACTMENT PERTINENT TO THIS CASE
INDICATES THAT CONGRESS WAS PROCEEDING GENERALLY IN ACCORDANCE WITH
THIS APPROACH.  AFTER THE INITIAL CONGRESSIONAL DESIGNATION IN 1907 OF
CERTAIN ACTIONS THAT WERE DEEMED TO BE AN ABANDONMENT OF CITIZENSHIP,
IT BECAME APPARENT THAT FURTHER CLARIFICATION OF THE PROBLEM WAS
NECESSARY.  IN 1933 PRESIDENT ROOSEVELT, ACTING AT THE REQUEST OF THE
HOUSE COMMITTEE ON IMMIGRATION AND NATURALIZATION, (FN27) ESTABLISHED A
COMMITTEE OF CABINET MEMBERS TO PREPARE A CODIFICATION AND REVISION OF
THE NATIONALITY LAWS.  (FN28)  THE COMMITTEE, COMPOSED OF THE SECRETARY
OF STATE, THE ATTORNEY GENERAL AND THE SECRETARY OF LABOR, SPENT FIVE
YEARS PREPARING THE CODIFICATION THAT BECAME THE NATIONALITY ACT OF
1940 AND SUBMITTED THEIR DRAFT IN 1938.  IT IS EVIDENT THAT THIS
COMMITTEE DID NOT BELIEVE CITIZENSHIP COULD BE DIVESTED UNDER THE
GOVERNMENT'S GENERAL REGULATORY POWERS.  RATHER, IT ADOPTED THE
POSITION THAT THE CITIZEN ABANDONS HIS STATUS BY COMPROMISING HIS
ALLEGIANCE.  IN ITS LETTER SUBMITTING THE PROPOSED CODIFICATION TO THE
PRESIDENT, THE COMMITTEE DESCRIBED THE LOSS-OF-NATIONALITY PROVISIONS
IN THESE WORDS:  (FN29) 

"THEY ARE MERELY INTENDED TO DEPRIVE PERSONS OF AMERICAN NATIONALITY
WHEN SUCH PERSONS, BY THEIR OWN ACTS, OR INACTION, SHOW THAT THEIR REAL
ATTACHMENT IS TO THE FOREIGN COUNTRY AND NOT TO THE UNITED STATES." 

FURTHERMORE, WHEN THE DRAFT CODE WAS FIRST DISCUSSED BY THE HOUSE
COMMITTEE ON IMMIGRATION AND NATURALIZATION - THE ONLY LEGISLATIVE
GROUP THAT SUBJECTED THE CODIFICATION TO DETAILED EXAMINATION (FN30) -
IT WAS AT ONCE RECOGNIZED THAT THE STATUS OF CITIZENSHIP WAS PROTECTED
FROM CONGRESSIONAL CONTROL BY THE FOURTEENTH AMENDMENT.  IN CONSIDERING
THE SITUATION OF A NATIVE-BORN CHILD OF ALIEN PARENTAGE, CONGRESSMEN
POAGE AND REES, MEMBERS OF THE COMMITTEE, AND RICHARD FLOURNOY, THE
STATE DEPARTMENT REPRESENTATIVE, ENGAGED IN THE FOLLOWING COLLOQUY:
(FN31) 

"MR. POAGE.  ISN'T THAT BASED ON THE CONSTITUTIONAL PROVISION THAT
ALL PERSONS BORN IN THE UNITED STATES ARE CITIZENS THEREOF? 

"MR. FLOURNOY.  YES. 

"MR. POAGE.  IN OTHER WORDS, IT IS NOT A MATTER WE HAVE ANY CONTROL
OVER. 

"MR. FLOURNOY.  NO; AND NO ONE WANTS TO CHANGE THAT. 

"MR. POAGE.  NO ONE WANTS TO CHANGE THAT, OF COURSE. 

"MR. FLOURNOY.  WE HAVE CONTROL OVER CITIZENS BORN ABROAD, AND WE
ALSO HAVE CONTROL OVER THE QUESTION OF EXPATRIATION.  WE CAN PROVIDE
FOR EXPATRIATION.  NO ONE PROPOSES TO CHANGE THE CONSTITUTIONAL
PROVISIONS. 

"MR. REES.  WE CANNOT CHANGE THE CITIZENSHIP OF A MAN WHO WENT
ABROAD, WHO WAS BORN IN THE UNITED STATES. 

"MR. FLOURNOY.  YOU CAN MAKE CERTAIN ACTS OF HIS RESULT IN A LOSS OF
CITIZENSHIP. 

"MR. REES.  SURELY, THAT WAY." 

IT IS THUS CLEAR THAT THE PURPOSE GOVERNING THE FORMULATION OF MOST OF
THE LOSS-OF-NATIONALITY PROVISIONS OF THE CODIFICATION WAS THE
SPECIFICATION OF ACTS THAT WOULD OF THEMSELVES SHOW A VOLUNTARY
ABANDONMENT OF CITIZENSHIP.  CONGRESS DID NOT ASSUME IT WAS EMPOWERED
TO USE DENATIONALIZATION AS A WEAPON TO AID IN THE EXERCISE OF ITS
GENERAL POWERS.  NOR SHOULD WE. 

WOULD RESULT IN LOSS OF CITIZENSHIP: 

"VOTING IN A POLITICAL ELECTION IN A FOREIGN STATE OR PARTICIPATING
IN AN ELECTION OR PLEBISCITE TO DETERMINE THE SOVEREIGNTY OVER FOREIGN
TERRITORY ...  ." 

THE CONDUCT DESCRIBED WAS SPECIFICALLY REPRESENTED BY MR. FLOURNOY TO
THE HOUSE COMMITTEE AS INDICATIVE OF "A CHOICE OF THE FOREIGN
NATIONALITY," JUST LIKE "USING A PASSPORT OF THE FOREIGN STATE AS A
NATIONAL THEREOF."  (FN32) 

THE PRECISE ISSUE POSED BY SECTION 401(E) IS WHETHER THE CONDUCT IT
DESCRIBES INVARIABLY INVOLVES A DILUTION OF UNDIVIDED ALLEGIANCE
SUFFICIENT TO SHOW A VOLUNTARY ABANDONMENT OF CITIZENSHIP.  DOUBTLESS
UNDER SOME CIRCUMSTANCES A VOTE IN A FOREIGN ELECTION WOULD HAVE THIS
EFFECT.  FOR EXAMPLE, ABANDONMENT OF CITIZENSHIP MIGHT RESULT IF THE
PERSON DESIRING TO VOTE HAD TO BECOME A FOREIGN NATIONAL OR REPRESENT
HIMSELF TO BE ONE.  (FN33)  CONDUCT OF THIS SORT IS APPARENTLY WHAT MR.
FLOURNOY HAD IN MIND WHEN HE DISCUSSED WITH THE COMMITTEE THE SITUATION
OF AN AMERICAN-BORN YOUTH WHO HAD ACQUIRED CANADIAN CITIZENSHIP THROUGH
THE NATURALIZATION OF HIS PARENTS.  MR. FLOURNOY SUGGESTED THAT THE
YOUNG MAN MIGHT MANIFEST AN ELECTION OF NATIONALITY BY TAKING ADVANTAGE
OF HIS CANADIAN CITIZENSHIP AND VOTING "AS A CANADIAN."  (FN34)  AND
EVEN THE SITUATION THAT BOTHERED COMMITTEE CHAIRMAN DICKSTEIN -
AMERICANS VOTING IN THE SAAR PLEBISCITE - MIGHT UNDER SOME
CIRCUMSTANCES DISCLOSE CONDUCT TANTAMOUNT TO DIVIDING ALLEGIANCE. 
CONGRESSMAN DICKSTEIN EXPRESSED HIS CONCERN AS FOLLOWS:  (FN35) 

"I KNOW WE HAVE HAD A LOT OF NAZIS, SO-CALLED AMERICAN CITIZENS, GO
TO EUROPE WHO HAVE VOTED IN THE SAAR FOR THE ANNEXATION OF TERRITORY TO
GERMANY, AND GERMANY SAYS THAT THEY HAVE THE RIGHT TO PARTICIPATE AND
TO VOTE, AND YET THEY ARE AMERICAN CITIZENS." 

THERE MIGHT WELL BE CIRCUMSTANCES WHERE AN AMERICAN SHOWN TO HAVE
VOTED AT THE BEHEST OF A FOREIGN GOVERNMENT TO ADVANCE ITS TERRITORIAL
INTERESTS WOULD COMPROMISE HIS NATIVE ALLEGIANCE. 

THIS FATAL DEFECT IN THE STATUTE BEFORE US IS THAT ITS APPLICATION IS
NOT LIMITED TO THOSE SITUATIONS THAT MAY RATIONALLY BE SAID TO
CONSTITUTE AN ABANDONMENT OF CITIZENSHIP.  IN SPECIFYING THAT ANY ACT
OF VOTING IN A FOREIGN POLITICAL ELECTION RESULTS IN LOSS OF
CITIZENSHIP, CONGRESS HAS EMPLOYED A CLASSIFICATION SO BROAD THAT IT
ENCOMPASSES CONDUCT THAT FAILS TO SHOW A VOLUNTARY ABANDONMENT OF
AMERICAN CITIZENSHIP.  (FN36)  "THE CONNECTION BETWEEN THE FACT PROVED
AND THAT PRESUMED IS NOT SUFFICIENT."  MANLEY V. GEORGIA, 279 U.S. 1,
7; SEE ALSO TOT V. UNITED STATES, 319 U.S. 463; BAILEY V. ALABAMA, 219
U.S. 219.  THE REACH OF THIS STATUTE IS BEST INDICATED BY A DECISION OF
A FORMER ATTORNEY GENERAL, HOLDING THAT AN AMERICAN CITIZEN LOST HER
CITIZENSHIP UNDER SECTION 401(E) BY VOTING IN AN ELECTION IN A CANADIAN
TOWN ON THE ISSUE OF WHETHER BEER AND WINE SHOULD BE SOLD.  (FN37)
VOTING IN A FOREIGN ELECTION MAY BE A MOST EQUIVOCAL ACT, GIVING RISE
TO NO IMPLICATION THAT ALLEGIANCE HAS BEEN COMPROMISED.  NOTHING COULD
DEMONSTRATE THIS BETTER THAN THE POLITICAL HISTORY OF THIS COUNTRY.  IT
WAS NOT UNTIL 1928 THAT A PRESIDENTIAL ELECTION WAS HELD IN THIS
COUNTRY IN WHICH NO ALIEN WAS ELIGIBLE TO VOTE.  (FN38)  EARLIER IN OUR
HISTORY AT LEAST 22 STATES HAD EXTENDED THE FRANCHISE TO ALIENS.  IT
CANNOT BE SERIOUSLY CONTENDED THAT THIS NATION UNDERSTOOD THE VOTE OF
EACH ALIEN WHO PREVIOUSLY TOOK ADVANTAGE OF THIS PRIVILEGE TO BE AN ACT
OF ALLEGIANCE TO THIS COUNTRY, JEOPARDIZING THE ALIEN'S NATIVE
CITIZENSHIP.  HOW THEN CAN WE ATTACH SUCH SIGNIFICANCE TO ANY VOTE OF A
UNITED STATES CITIZEN IN A FOREIGN ELECTION?  IT IS ALSO SIGNIFICANT
THAT OF 84 NATIONS WHOSE NATIONALITY LAWS HAVE BEEN COMPILED BY THE
UNITED NATIONS, ONLY THIS COUNTRY SPECIFICALLY DESIGNATES FOREIGN
VOTING AS AN EXPATRIATING ACT.  (FN39) 

MY CONCLUSIONS ARE AS FOLLOWS.  THE GOVERNMENT IS WITHOUT POWER TO
TAKE CITIZENSHIP AWAY FROM A NATIVE-BORN OR LAWFULLY NATURALIZED
AMERICAN.  THE FOURTEENTH AMENDMENT RECOGNIZES THAT THIS PRICELESS
RIGHT IS IMMUNE FROM THE EXERCISE OF GOVERNMENTAL POWERS.  IF THE
GOVERNMENT DETERMINES THAT CERTAIN CONDUCT BY UNITED STATES CITIZENS
SHOULD BE PROHIBITED BECAUSE OF ANTICIPATED INJURIOUS CONSEQUENCES TO
THE CONDUCT OF FOREIGN AFFAIRS OR TO SOME OTHER LEGITIMATE GOVERNMENTAL
INTEREST, IT MAY WITHIN THE LIMITS OF THE CONSTITUTION PROSCRIBE SUCH
ACTIVITY AND ASSESS APPROPRIATE PUNISHMENT.   BUT EVERY EXERCISE OF
GOVERNMENTAL POWER MUST FIND ITS SOURCE IN THE CONSTITUTION.  THE POWER
TO DENATIONALIZE IS NOT WITHIN THE LETTER OF THE SPIRIT OF THE POWERS
WITH WHICH OUR GOVERNMENT WAS ENDOWED.  THE CITIZEN MAY ELECT TO
RENOUNCE HIS CITIZENSHIP, AND UNDER SOME CIRCUMSTANCES HE MAY BE FOUND
TO HAVE ABANDONED HIS STATUS BY VOLUNTARILY PERFORMING ACTS THAT
COMPROMISE HIS UNDIVIDED ALLEGIANCE TO HIS COUNTRY.  THE MERE ACT OF
VOTING IN A FOREIGN ELECTION, HOWEVER, WITHOUT REGARD TO THE
CIRCUMSTANCES ATTENDING THE PARTICIPATION, IS NOT SUFFICIENT TO SHOW A
VOLUNTARY ABANDONMENT OF CITIZENSHIP.  THE RECORD IN THIS CASE DOES NOT
DISCLOSE ANY OF THE CIRCUMSTANCES UNDER WHICH THIS PETITIONER VOTED. 
WE KNOW ONLY THE BARE FACT THAT HE CAST A BALLOT.  THE BASIC RIGHT OF
AMERICAN CITIZENSHIP HAS BEEN TOO DEARLY WON TO BE SO LIGHTLY LOST. 

I FULLY RECOGNIZE THAT ONLY THE MOST COMPELLING CONSIDERATIONS SHOULD
LEAD TO THE INVALIDATION OF CONGRESSIONAL ACTION, AND WHERE LEGISLATIVE
JUDGMENTS ARE INVOLVED, THIS COURT SHOULD NOT INTERVENE.   BUT THE
COURT ALSO HAS ITS DUTIES, NONE OF WHICH DEMANDS MORE DILIGENT
PERFORMANCE THAN THAT OF PROTECTING THE FUNDAMENTAL RIGHTS OF
INDIVIDUALS.  THAT DUTY IS IMPERATIVE WHEN THE CITIZENSHIP OF AN
AMERICAN IS AT STAKE - THAT STATUS, WHICH ALONE, ASSURES HIM THE FULL
ENJOYMENT OF THE PRECIOUS RIGHTS CONFERRED BY OUR CONSTITUTION.  AS I
SEE MY DUTY IN THIS CASE, I MUST DISSENT. 

FN1  SECTION 401 OF THE NATIONALITY ACT OF 1940, 54 STAT. 1137, 1168
1169, AS AMENDED, 8 U.S.C. SEC. 1481. 

THE FACT THAT THE STATUTE SPEAKS IN TERMS OF LOSS OF NATIONALITY DOES
NOT MEAN THAT IT IS NOT PETITIONER'S CITIZENSHIP THAT IS BEING
FORFEITED.  HE IS A NATIONAL BY REASON OF HIS BEING A CITIZEN, SEC.
101(B), NATIONALITY ACT OF 1940, 54 STAT. 1137, 8 U.S.C. SEC.
1101(A)(22).  HENCE HE LOSES HIS CITIZENSHIP WHEN HE LOSES HIS STATUS
AS A NATIONAL OF THE UNITED STATES.  IN THE CONTEXT OF THIS OPINION,
THE TERMS NATIONALITY AND CITIZENSHIP CAN BE USED INTERCHANGEABLY.  CF.
RABANG V. BOYD, 353 U.S. 427. 

FN2  PETITIONER WAS BORN IN EL PASO, TEXAS, IN 1909, A FACT OF WHICH
HE WAS APPRISED IN 1928.  HIS MEXICAN-BORN PARENTS TOOK HIM TO MEXICO
WHEN HE WAS 10 OR 11 YEARS OLD.  IN 1932 PETITIONER MARRIED A MEXICAN
NATIONAL; THEY HAVE SEVEN CHILDREN.  IN 1943 AND 1944 PETITIONER SOUGHT
AND RECEIVED PERMISSION TO ENTER THIS COUNTRY FOR BRIEF PERIODS AS A
WARTIME RAILROAD LABORER.  IN 1952 PETITIONER AGAIN ENTERED THIS
COUNTRY AS A TEMPORARY FARM LABORER.  AFTER HE HAD BEEN ORDERED
DEPORTED AS AN ALIEN ILLEGALLY IN THE UNITED STATES, HE BROUGHT THIS
ACTION FOR A DECLARATORY JUDGMENT OF CITIZENSHIP, RELYING UPON HIS
BIRTH IN THIS COUNTRY.    FN3  SECTION 401(E) OF THE NATIONALITY ACT OF
1940, 54 STAT. 1169, 8 U.S.C. SEC. 1481(5). 

THE COURTS BELOW CONCLUDED THAT PETITIONER HAD LOST HIS CITIZENSHIP
FOR THE ADDITIONAL REASON SPECIFIED IN SEC. 401(J) OF THE NATIONALITY
ACT, WHICH WAS ADDED IN 1944, 58 STAT. 746, 8 U.S.C. SEC. 1481(10): 

"DEPARTING FROM OR REMAINING OUTSIDE OF THE JURISDICTION OF THE
UNITED STATES IN TIME OF WAR OR DURING A PERIOD DECLARED BY THE
PRESIDENT TO BE A PERIOD OF NATIONAL EMERGENCY FOR THE PURPOSE OF
EVADING OR AVOIDING TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF
THE UNITED STATES." 

THE MAJORITY EXPRESSLY DECLINES TO RULE ON THE CONSTITUTIONAL
QUESTIONS RAISED BY SEC. 401(J).  MY VIEWS ON A STATUTE OF THIS SORT
ARE SET FORTH IN MY OPINION IN TROP V. DULLES, POST, P. 86, DECIDED
THIS DAY, INVOLVING SIMILAR PROBLEMS RAISED BY SEC. 401(G) OF THE
NATIONALITY ACT, 54 STAT. 1169, AS AMENDED, 8 U.S.C. SEC. 1481(8). 

FN4  SEE BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD (1916),
SEC. 8; 1 OPPENHEIM, INTERNATIONAL LAW (7TH ED., LAUTERPACHT, 1948),
SECS. 291-294; HOLBORN, THE LEGAL STATUS OF POLITICAL REFUGEES, 1920
1938, 32 AM. J. INT'L L. 680 (1938); PREUSS, INTERNATIONAL LAW AND
DEPRIVATION OF NATIONALITY, 23 GEO. L.J. 250 (1934); STUDY ON
STATELESSNESS, U.N. DOC.  NO. E/1112 (1949); 64 YALE L.J. 1164 (1955). 

FN5  SEE KONVITZ, THE ALIEN AND THE ASIATIC IN AMERICAN LAW (1946);
COMMENT, 20 U. OF CHI.  L. REV. 547 (1953).  CF. TAKAHASHI V. FISH &
GAME COMMISSION, 334 U.S. 410; OYAMA V. CALIFORNIA, 332 U.S. 633. 

FN6  HARISIADES V. SHAUGHNESSY, 342 U.S. 580; FONG YUE TING V. UNITED
STATES, 149 U.S. 698. 

EVEN IF CONGRESS CAN DIVEST UNITED STATES CITIZENSHIP, IT DOES NOT
NECESSARILY FOLLOW THAT AN AMERICAN-BORN EXPATRIATE CAN BE DEPORTED. 
HE WOULD BE COVERED BY THE STATUTORY DEFINITION OF "ALIEN," 8 U.S.C.
SEC. 1101(A)(3), BUT HE WOULD NOT NECESSARILY HAVE COME "FROM A FOREIGN
PORT OR PLACE" AND HENCE MAY NOT HAVE EFFECTED THE "ENTRY," 8 U.S.C.
SEC. 1101(A)(13), SPECIFIED IN THE DEPORTATION PROVISIONS, 8 U.S.C.
SEC. 1251.  MORE FUNDAMENTALLY, SINCE THE DEPORTING POWER HAS BEEN HELD
TO BE DERIVED FROM THE POWER TO EXCLUDE, FONG YUE TING V. UNITED
STATES, SUPRA, IT MAY WELL BE THAT THIS POWER DOES NOT EXTEND TO
PERSONS BORN IN THIS COUNTRY.  AS TO THEM, DEPORTATION WOULD PERHAPS
FIND ITS JUSTIFICATION ONLY AS A PUNISHMENT, INDISTINGUISHABLE FROM
BANISHMENT.  SEE DISSENTING OPINIONS IN UNITED STATES V. JU TOY, 198
U.S. 253, 264; FONG YUE TING V. UNITED STATES, SUPRA, AT 744. 

SINCE THIS ACTION FOR A DECLARATORY JUDGMENT DOES NOT INVOLVE THE
VALIDITY OF THE DEPORTATION ORDER AGAINST PETITIONER, IT IS
UNNECESSARY, AS THE GOVERNMENT POINTS OUT, TO RESOLVE THE QUESTION OF
WHETHER THIS PETITIONER MAY BE DEPORTED. 

FN7  U.S. CONST., ART. I, SEC. 8, CL. 4. 

FN8  SEE, E.G., KNAUER V. UNITED STATES, 328 U.S. 654; BAUMGARTNER V.
UNITED STATES, 322 U.S. 665; SCHNEIDERMAN V. UNITED STATES, 320 U.S.
118. 

FN9  ACT OF JULY 27, 1868, 15 STAT. 223. 

FN10  IBID. 

FN11  SEE SAVORGNAN V. UNITED STATES, 338 U.S. 491, 498 AND N. 11;
FOREIGN RELATIONS, 1873, H.R. EXEC. DOC. NO. 1, 43D CONG., 1ST SESS.,
PT. 1, VOL. II, 1186-1187, 1204, 1210, 1213, 1216, 1222 (VIEWS OF
PRESIDENT GRANT'S CABINET MEMBERS); 14 OP. ATTY. GEN. 295; TSIANG, THE
QUESTION OF EXPATRIATION IN AMERICA PRIOR TO 1907, 97-98, 108-109. 

FN12  SEE SHANKS V. DUPONT, 3 PET. 242; INGLIS V. TRUSTEES OF
SAILOR'S SNUG HARBOUR, 3 PET. 99. 

FN13  3 MOORE, DIGEST OF INTERNATIONAL LAW, SECS. 434-437; TSIANG, 45
55, 71-86, 110-112. 

FN14  TSIANG, 55-61. 

FN15  9 OP. ATTY. GEN. 356, 359. 

FN16  SEE, E.G., SAVORGNAN V. UNITED STATES, 338 U.S. 491; MACKENZIE
V. HARE, 239 U.S. 299; BAUER V. CLARK, 161 F.2D 397, CERT. DENIED, 332
U.S. 839.  CF. ACHESON V. MAENZA, 92 U.S. APP.  D.C. 85, 202 F.2D 453. 

FN17  SEE LAWS CONCERNING NATIONALITY, U.N. DOC. NO. ST/LEG/SER.B/4
(1954). 

FN18  SEE, GENERALLY, LAWS CONCERNING NATIONALITY, OP. CIT. SUPRA,
NOTE 17. 

FN19  ACT OF MARCH 2, 1907, 34 STAT. 1228-1229.  THE FULL TEXT IS AS
FOLLOWS: 

"SEC. 3.  THAT ANY AMERICAN WOMAN WHO MARRIES A FOREIGNER SHALL TAKE
THE NATIONALITY OF HER HUSBAND.  AT THE TERMINATION OF THE MARITAL
RELATION SHE MAY RESUME HER AMERICAN CITIZENSHIP, IF ABROAD, BY
REGISTERING AS AN AMERICAN CITIZEN WITHIN ONE YEAR WITH A CONSUL OF THE
UNITED STATES, OR BY RETURNING TO RESIDE IN THE UNITED STATES, OR, IF
RESIDING IN THE UNITED STATES AT THE TERMINATION OF THE MARITAL
RELATION, BY CONTINUING TO RESIDE THEREIN." 

FN20  THIS CLAUSE MERELY EXPRESSED THE WELL-UNDERSTOOD PRINCIPLE THAT
A WIFE'S NATIONALITY "MERGED" WITH THAT OF HER HUSBAND'S.  COCKBURN,
NATIONALITY, 24; 3 MOORE, DIGEST OF INTERNATIONAL LAW, 450-451, 453; 3
HACKWORTH, DIGEST OF INTERNATIONAL LAW, 246-247.  THIS WAS A
CONSEQUENCE OF THE COMMON-LAW FICTION OF A UNITY OF INTEREST IN THE
MARITAL COMMUNITY.  DURING COVERTURE THE PRIVILEGES AND OBLIGATIONS OF
A WOMAN'S CITIZENSHIP GAVE WAY TO THE DOMINANCE OF HER HUSBAND'S.
PRIOR TO THE ACT OF MARCH 2, 1907, THE DEPARTMENT OF STATE DECLINED TO
ISSUE PASSPORTS TO AMERICAN-BORN WOMEN WHO WERE MARRIED TO ALIENS.  3
MOORE, 454; 3 HACKWORTH, 247.  THE ATTORNEY GENERAL RULED THAT A WOMAN
IN SUCH CIRCUMSTANCES WAS NOT SUBJECT TO AN INCOME TAX IMPOSED ON ALL
CITIZENS OF THE UNITED STATES RESIDING ABROAD.  13 OP. ATTY. GEN. 128. 
SEVERAL COURTS HELD THAT DURING THE DURATION OF A MARRIAGE CONSUMMATED
PRIOR TO THE ACT BETWEEN AN AMERICAN-BORN WOMAN AND AN ALIEN, A COURT
MAY ENTERTAIN A PETITION FOR HER NATURALIZATION.  IN RE WOHLGEMUTH, 35
F.2D 1007; IN RE KRAUSMANN, 28 F.2D 1004; IN RE PAGE, 12 F.2D 135.  CF.
PEQUIGNOT V. DETROIT, 16 F. 211. 

FN21  S. RES. 30, 59TH CONG., 1ST SESS.; H.R. REP. NO. 4784, 59TH
CONG., 1ST SESS. 

FN22  H.R. DOC. NO. 326, 59TH CONG., 2D SESS. 29.  THE DEPARTMENT'S
COVERING LETTER MAKES ABUNDANTLY CLEAR THAT MARRIAGE WAS NOT TO RESULT
IN "EXPATRIATION."  ID., AT 3. 

FN23  CONSULT, GENERALLY, 3 MOORE, SEC. 410(2)("REVERSION OF
NATIONALITY"); VAN DYNE, NATURALIZATION, 242-255.  NUMEROUS CASES
CONTAIN REFERENCES TO A WOMAN'S "REVERTING" TO UNITED STATES
CITIZENSHIP AFTER THE TERMINATION OF HER MARRIAGE TO AN ALIEN.  E.G.,
PETITION OF ZOGBAUM, 32 F.2D 911, 913; PETITION OF DRYSDALE, 20 F.2D
957, 958; IN RE FITZROY, 4 F.2D 541, 542.  THE DEPARTMENT OF STATE
ADOPTED THE SAME INTERPRETATION.  IN 1890 SECRETARY BLAINE DECLARED THE
VIEW OF THE DEPARTMENT THAT: 

"THE MARRIAGE OF AN AMERICAN WOMAN TO A FOREIGNER DOES NOT COMPLETELY
DIVEST HER OF HER ORIGINAL NATIONALITY.  HER AMERICAN CITIZENSHIP IS
HELD FOR MOST PURPOSES TO BE IN ABEYANCE DURING COVERTURE, BUT TO BE
SUSCEPTIBLE OF REVIVAL BY HER RETURN TO THE JURISDICTION AND ALLEGIANCE
OF THE UNITED STATES."  FOREIGN REL. U.S. 1890, 301. 

IN 1906 SECRETARY ROOT STATED: 

"UNDER THE PRACTICE OF THE DEPARTMENT OF STATE A WIDOW OR A WOMAN WHO
HAS OBTAINED AN ABSOLUTE DIVORCE, BEING AN AMERICAN CITIZEN AND WHO HAS
MARRIED AN ALIEN, MUST RETURN TO THE UNITED STATES, OR MUST HAVE HER
RESIDENCE HERE IN ORDER TO HAVE HER AMERICAN CITIZENSHIP REVERT ON
BECOMING FEMME SOLE."  FOREIGN REL. U.S. 1906, PT. 2, 1365. 

FN24  CONSULT, GENERALLY, 3 MOORE, 458-462.  H.R. DOC. NO. 326, 59TH
CONG., 2D SESS. 269-538, A REPORT BY THE DEPARTMENT OF STATE WHICH
CONGRESS REQUESTED PRIOR TO ITS ACT OF MARCH 2, 1907, CONTAINS A DIGEST
OF THE NATIONALITY LAWS OF FORTY-FOUR COUNTRIES.  TWENTY-FIVE OF THOSE
PROVIDED IN WIDELY VARYING TERMS THAT UPON MARRIAGE A WOMAN'S
CITIZENSHIP SHOULD FOLLOW THAT OF HER HUSBAND.  OF THESE TWENTY-FIVE,
ALL BUT TWO MADE SPECIAL PROVISION FOR THE WOMAN TO RECOVER HER
CITIZENSHIP UPON TERMINATION OF THE MARRIAGE BY COMPLIANCE WITH CERTAIN
FORMALITIES DEMONSTRATIVE OF THE PROPER INTENT, AND IN EVERY INSTANCE
WHOLLY DIFFERENT FROM THE ORDINARY NATURALIZATION PROCEDURES. 

FN25  IN RE WOHLGEMUTH, 35 F.2D 1007; IN RE KRAUSMANN, 28 F.2D 1004;
PETITION OF DRYSDALE, 20 F.2D 957; IN RE PAGE, 12 F.2D 135. 

IN FACT, CONGRESSMAN PERKINS, SUPPORTING THE BILL ON THE FLOOR OF THE
HOUSE, EXPLAINED ITS EFFECT IN THESE WORDS: 

"THE COURTS HAVE DECIDED THAT A WOMAN TAKES THE CITIZENSHIP OF HER
HUSBAND, ONLY THE DECISIONS OF THE COURTS PROVIDE NO MEANS BY WHICH SHE
MAY RETAKE THE CITIZENSHIP OF HER OWN COUNTRY ON THE EXPIRATION OF THE
MARITAL RELATION.  THIS BILL CONTAINS NOTHING NEW IN THAT RESPECT,
EXCEPT A PROVISION THAT WHEN THE MARITAL RELATION IS TERMINATED THE
WOMAN MAY THEN RETAKE HER FORMER CITIZENSHIP."  41 CONG. REC. 1465. 

CASES DISCUSSING THE PRE-1907 LAW GENERALLY HELD THAT A WOMAN DID NOT
LOSE HER CITIZENSHIP BY MARRIAGE TO AN ALIEN, ALTHOUGH SHE MIGHT BRING
ABOUT THAT RESULT BY OTHER ACTS (SUCH AS RESIDING ABROAD AFTER THE
DEATH OF HER HUSBAND) DEMONSTRATING AN INTENT TO RELINQUISH THAT
CITIZENSHIP.  E.G., SHANKS V. DUPONT, 3 PET. 242; IN RE WRIGHT, 19 F.
SUPP. 224; PETITION OF ZOGBAUM, 32 F.2D 911; IN RE LYNCH, 31 F.2D 762;
PETITION OF DRYSDALE, 20 F.2D 957; IN RE FITZROY, 4 F.2D 541;
WALLENBURG V. MISSOURI PACIFIC R. CO., 159 F. 217; RUCKGABER V. MOORE,
104 F. 947; COMITIS V. PARKERSON, 56 F. 556.  THIS WAS ALSO THE VIEW OF
THE DEPARTMENT OF STATE.  3 MOORE, 449-450; 3 HACKWORTH, 247-248. 

FN26  THE MARRIAGE PROVISIONS OF THE 1907 LEGISLATION WERE
SUBSTANTIALLY REPEALED BY THE 1922 CABLE ACT, 42 STAT. 1021, AND THE
LAST REMNANTS OF THE EFFECT OF MARRIAGE ON LOSS OF CITIZENSHIP WERE
ELIMINATED IN 1931.  46 STAT. 1511.  SEE ROCHE, THE LOSS OF AMERICAN
NATIONALITY, 99 U. OF PA. L. REV. 25, 47-49. 

FN27  SEE 86 CONG. REC. 11943. 

FN28  EXEC. ORDER NO. 6115, APRIL 25, 1933. 

FN29  CODIFICATION OF THE NATIONALITY LAWS OF THE UNITED STATES, H.R.
COMM. PRINT, PT. 1, 76TH CONG., 1ST SESS. VII. 

FN30  THE BILL WAS CONSIDERED BY THE HOUSE COMMITTEE ON IMMIGRATION
AND NATURALIZATION AND ITS SUBCOMMITTEE.  HEARINGS BEFORE THE HOUSE
COMMITTEE ON IMMIGRATION AND NATURALIZATION ON H.R. 6127, 76TH CONG.,
1ST SESS.  THE SENATE DID NOT HOLD HEARINGS ON THE BILL. 

FN31  HEARINGS, AT 37-38. 

FN32  ID., AT 132.  THE PASSPORT PROVISION WAS APPARENTLY DELETED BY
THE SUBCOMMITTEE, FOR IT DOES NOT APPEAR IN THE VERSION OF THE BILL
THAT WAS PRINTED WHEN HEARINGS RESUMED BEFORE THE FULL COMMITTEE ON MAY
2, 1940.  ID., AT 207. 

FN33  CF. IN THE MATTER OF P - , 1 I.&N. DEC. 267 (THIS PARTICULAR
ELECTION IN CANADA WAS OPEN ONLY TO BRITISH SUBJECTS). 

FN34  HEARINGS, AT 98. 

FN35  ID., AT 286-287. 

FN36  THE BROAD SWEEP OF THE STATUTE WAS SPECIFICALLY CALLED TO THE
ATTENTION OF THE COMMITTEE BY MR. HENRY F. BUTLER.  HEARINGS, AT 286
287.  MR. BUTLER ALSO SUBMITTED A BRIEF, SUGGESTING THAT THE COVERAGE
OF THE STATUTE BE LIMITED TO THOSE VOTING "IN A MANNER IN WHICH ONLY
NATIONALS OF SUCH FOREIGN STATE OR TERRITORY ARE ELIGIBLE TO VOTE OR
PARTICIPATE."  ID., AT 387. 

FN37  IN THE MATTER OF F - , 2 I.&N. DEC. 427. 

FN38  AYLSWORTH, THE PASSING OF ALIEN SUFFRAGE, 25 AM. POL.  SCI. 
REV. 114. 

FN39  LAWS CONCERNING NATIONALITY, U.N. DOC. NO. ST/LEG/SER.B/4
(1954).  THE STATUTES OF ANDORRA (191 SQ. MI.; 5,231 POP.)  PROVIDE FOR
LOSS OF NATIONALITY FOR A CITIZEN WHO "EXERCISES POLITICAL RIGHTS IN
ANOTHER COUNTRY," ID., AT 10, AND THIS VERY LIKELY INCLUDES VOTING. 

OF COURSE, IT SHOULD BE NOTED THAT TWO NATIONS, ROMANIA AND RUSSIA,
HAVE STATUTES PROVIDING THAT UPON DECREE OF THE GOVERNMENT CITIZENSHIP
CAN BE WITHDRAWN, APPARENTLY FOR ANY REASON.  ID., AT 396, 463. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

WHILE I JOIN THE OPINION OF THE CHIEF JUSTICE, I WISH TO ADD A WORD. 
THE PHILOSOPHY OF THE OPINION THAT SUSTAINS THIS STATUTE IS FOREIGN TO
OUR CONSTITUTIONAL SYSTEM.  IT GIVES SUPREMACY TO THE LEGISLATURE IN A
WAY THAT IS INCOMPATIBLE WITH THE SCHEME OF OUR WRITTEN CONSTITUTION. 
A DECISION SUCH AS THIS COULD BE EXPECTED IN ENGLAND WHERE THERE IS NO
WRITTEN CONSTITUTION, AND WHERE THE HOUSE OF COMMONS HAS THE FINAL
SAY.  BUT WITH ALL DEFERENCE, THIS PHILOSOPHY HAS NO PLACE HERE.  BY
PROCLAIMING IT WE FORSAKE MUCH OF OUR CONSTITUTIONAL HERITAGE AND MOVE
CLOSER TO THE BRITISH SCHEME.  THAT MAY BE BETTER THAN OURS OR IT MAY
BE WORSE.  CERTAINLY IT IS NOT OURS. 

WE DEAL HERE WITH THE RIGHT OF CITIZENSHIP CREATED BY THE
CONSTITUTION.  SECTION 1, CL. 1, OF THE FOURTEENTH AMENDMENT STATES
"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."  AS STATED BY THE COURT IN THE HISTORIC
DECISION UNITED STATES V. WONG KIM ARK, 169 U.S. 649, 702, "CITIZENSHIP
BY NATURALIZATION CAN ONLY BE ACQUIRED BY NATURALIZATION UNDER THE
AUTHORITY AND IN THE FORMS OF LAW.  BUT CITIZENSHIP BY BIRTH IS
ESTABLISHED BY THE MERE FACT OF BIRTH UNDER THE CIRCUMSTANCES DEFINED
IN THE CONSTITUTION." 

WHAT THE CONSTITUTION GRANTS THE CONSTITUTION CAN TAKE AWAY.  BUT
THERE IS NOT A WORD IN THAT DOCUMENT THAT COVERS EXPATRIATION.  THE
NUMEROUS LEGISLATIVE POWERS GRANTED BY ART. I, SEC. 8, DO NOT MENTION
IT.  I DO NOT KNOW OF ANY LEGISLATIVE POWER LARGE ENOUGH AND POWERFUL
ENOUGH TO MODIFY OR WIPE OUT RIGHTS GRANTED OR CREATED BY SEC. 1, CL.
1, OF THE FOURTEENTH AMENDMENT. 

OUR DECISIONS HAVE NEVER HELD THAT EXPATRIATION CAN BE IMPOSED.  TO
THE CONTRARY, THEY HAVE ASSUMED THAT EXPATRIATION WAS A VOLUNTARY
RELINQUISHMENT OF LOYALTY TO ONE COUNTRY AND ATTACHMENT TO ANOTHER. 
JUSTICE PATERSON SPOKE OF EXPATRIATION IN TALBOT V. JANSON, 3 DALL. 
133, 153, AS "A DEPARTURE WITH INTENTION TO LEAVE THIS COUNTRY, AND
SETTLE IN ANOTHER."  THE LOSS OF CITIZENSHIP IN THIS COUNTRY WITHOUT
ITS ACQUISITION IN ANOTHER COUNTRY WAS TO HIM THE CREATION OF "A
CITIZEN OF THE WORLD" - A CONCEPT THAT IS "A CREATURE OF THE
IMAGINATION, AND FAR TOO REFINED FOR ANY REPUBLIC OF ANCIENT OR MODERN
TIMES."  IBID.    SO FAR AS I CAN FIND, WE HAVE, PRIOR TO THIS DAY,
NEVER SUSTAINED THE LOSS OF A NATIVE-BORN AMERICAN CITIZENSHIP UNLESS
ANOTHER CITIZENSHIP WAS VOLUNTARILY ACQUIRED.  THAT WAS TRUE BOTH IN
MACKENZIE V. HARE, 239 U.S. 299, AND SAVORGNAN V. UNITED STATES, 338
U.S. 491.  WE SHOULD LOOK TO THEIR FACTS, NOT TO LOOSE STATEMENTS
UNNECESSARY FOR THE DECISIONS.  IN THE MACKENZIE CASE IT WAS THE
MARRIAGE OF A NATIVE-BORN WOMAN TO AN ALIEN THAT CAUSED THE LOSS OF ONE
NATIONALITY AND THE ACQUISITION OF ANOTHER.  IN THE SAVORGNAN CASE THE
NATIVE-BORN AMERICAN CITIZEN BECAME NATURALIZED IN ITALY.  IN THIS CASE
PEREZ DID VOTE IN A FOREIGN ELECTION OF SOME KIND.  BUT AS THE CHIEF
JUSTICE HAS CLEARLY SHOWN, SEC. 401(E) OF THE NATIONALITY ACT OF 1940
"IS NOT LIMITED TO THOSE SITUATIONS THAT MAY RATIONALLY BE SAID TO
CONSTITUTE AN ABANDONMENT OF CITIZENSHIP."  ANTE, P. 76. 

OUR LANDMARK DECISION ON EXPATRIATION IS PERKINS V. ELG, 307 U.S.
325, WHERE CHIEF JUSTICE HUGHES WROTE FOR THE COURT.  THE EMPHASIS OF
THAT OPINION IS THAT "EXPATRIATION IS THE VOLUNTARY RENUNCIATION OR
ABANDONMENT OF NATIONALITY AND ALLEGIANCE."  ID., AT 334. 

TODAY'S DECISION BREAKS WITH THAT TRADITION.  IT ALLOWS CONGRESS TO
BRAND AN AMBIGUOUS ACT AS A "VOLUNTARY RENUNCIATION" OF CITIZENSHIP
WHEN THERE IS NO REQUIREMENT AND NO FINDING THAT THE CITIZEN
TRANSFERRED HIS LOYALTY FROM THIS COUNTRY TO ANOTHER.  THIS POWER IS
FOUND IN THE POWER OF CONGRESS TO REGULATE FOREIGN AFFAIRS.  BUT IF
VOTING ABROAD IS SO PREGNANT WITH DANGER THAT CONGRESS CAN PENALIZE IT
BY WITHDRAWING THE VOTER'S AMERICAN CITIZENSHIP, ALL CITIZENS SHOULD BE
FILLED WITH ALARM.  SOME OF THE MOST HEATED POLITICAL DISCUSSIONS IN
OUR HISTORY HAVE CONCERNED FOREIGN POLICY.  I HAD ALWAYS ASSUMED THAT
THE FIRST AMENDMENT, WRITTEN IN TERMS ABSOLUTE, PROTECTED THOSE
UTTERANCES, NO MATTER HOW EXTREME, NO MATTER HOW UNPOPULAR THEY MIGHT
BE.  YET IF THE POWER TO REGULATE FOREIGN AFFAIRS CAN BE USED TO
DEPRIVE A PERSON OF HIS CITIZENSHIP BECAUSE HE VOTED ABROAD, WHY MAY
NOT IT BE USED TO DEPRIVE HIM OF HIS CITIZENSHIP BECAUSE HIS VIEWS ON
FOREIGN POLICY ARE UNORTHODOX OR BECAUSE HE DISPUTED THE POSITION OF
THE SECRETARY OF STATE OR DENOUNCED A RESOLUTION OF THE CONGRESS OR THE
ACTION OF THE CHIEF EXECUTIVE IN THE FIELD OF FOREIGN AFFAIRS?  IT
SHOULD BE REMEMBERED THAT MANY OF OUR MOST HEATED CONTROVERSIES
INVOLVED ASSERTION OF FIRST AMENDMENT RIGHTS RESPECTING FOREIGN
POLICY.  THE HATED ALIEN AND SEDITION LAWS GREW OUT OF THAT FIELD. 
(FN1)  MORE RECENTLY THE RISE OF FASCISM AND COMMUNISM HAS HAD PROFOUND
REPERCUSSIONS HERE.  COULD ONE WHO ADVOCATED RECOGNITION OF SOVIET
RUSSIA IN THE 1920'S BE DEPRIVED OF HIS CITIZENSHIP?  COULD THAT FATE
BEFALL ONE WHO WAS A BUNDIST (FN2) IN THE LATE 1930'S OR EARLY 1940'S
AND EXTOLLED HITLER?  COULD IT HAPPEN IN THE 1950'S TO ONE WHO PLEADED
FOR RECOGNITION OF RED CHINA OR WHO PROCLAIMED AGAINST THE EISENHOWER
DOCTRINE IN THE MIDDLE EAST?  NO DOUBT GEORGE F. KENNAN "EMBARRASSED"
OUR FOREIGN RELATIONS WHEN HE RECENTLY SPOKE OVER THE BRITISH RADIO. 
(FN3)  DOES THE CONSTITUTION PERMIT CONGRESS TO CANCEL HIS
CITIZENSHIP?  COULD AN AMERICAN WHO VIOLATED HIS PASSPORT RESTRICTIONS
AND VISITED RED CHINA BE DEPRIVED OF HIS CITIZENSHIP?  OR SUPPOSE HE
TRADES WITH THOSE UNDER A BAN.  TO MANY PEOPLE ANY OF THOSE ACTS WOULD
SEEM MUCH MORE HEINOUS THAN THE FAIRLY INNOCENT ACT OF VOTING ABROAD. 
IF CASTING A BALLOT ABROAD IS SUFFICIENT TO DEPRIVE AN AMERICAN OF HIS
CITIZENSHIP, WHY COULD NOT LIKE PENALTIES BE IMPOSED ON THE CITIZEN WHO
EXPRESSES DISAGREEMENT WITH HIS NATION'S FOREIGN POLICY IN ANY OF THE
WAYS ENUMERATED? 

THE FACT THAT FIRST AMENDMENT RIGHTS MAY BE INVOLVED IN SOME CASES
AND NOT IN OTHERS SEEMS IRRELEVANT.  FOR THE GRANT OF CITIZENSHIP BY
THE FOURTEENTH AMENDMENT IS CLEAR AND EXPLICIT AND SHOULD WITHSTAND ANY
INVASION OF THE LEGISLATIVE POWER.   WHAT THE COURT DOES IS TO MAKE IT
POSSIBLE FOR ANY ONE OF THE MANY LEGISLATIVE POWERS TO BE USED TO WIPE
OUT OR MODIFY SPECIFIC RIGHTS GRANTED BY THE CONSTITUTION, PROVIDED THE
ACTION TAKEN IS MODERATE AND DOES NOT DO VIOLENCE TO THE SENSIBILITIES
OF A MAJORITY OF THIS COURT.  THE EXAMPLES WHERE THIS CONCEPT OF DUE
PROCESS HAS BEEN USED TO SUSTAIN STATE ACTION (FN4) AS WELL AS FEDERAL
ACTION, (FN5) WHICH MODIFIES OR DILUTES SPECIFIC CONSTITUTIONAL
GUARANTEES, ARE NUMEROUS.  IT IS USED TODAY DRASTICALLY TO REVISE THE
EXPRESS COMMAND OF THE FIRST CLAUSE OF SEC. 1 OF THE FOURTEENTH
AMENDMENT.  A RIGHT GRANTED BY THE CONSTITUTION - WHETHER IT BE THE
RIGHT TO COUNSEL OR THE RIGHT TO CITIZENSHIP - MAY BE WAIVED BY THE
CITIZEN.  (FN6)  BUT THE WAIVER MUST BE FIRST A VOLUNTARY ACT AND
SECOND AN ACT CONSISTENT WITH A SURRENDER OF THE RIGHT GRANTED.  WHEN
PEREZ VOTED HE ACTED VOLUNTARILY.  BUT, AS SHOWN, SEC. 401(E) DOES NOT
REQUIRE THAT HIS ACT HAVE A SUFFICIENT RELATIONSHIP TO THE
RELINQUISHMENT OF CITIZENSHIP - NOR A SUFFICIENT QUALITY OF ADHERING TO
A FOREIGN POWER.  NOR DID HIS VOTING ABROAD HAVE THAT QUALITY. 

THE DECISION WE RENDER TODAY EXALTS THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT ABOVE ALL OTHERS.  OF COURSE ANY POWER EXERCISED BY THE
CONGRESS MUST BE ASSERTED IN CONFORMITY WITH THE REQUIREMENTS OF DUE
PROCESS.  TOT V. UNITED STATES, 319 U.S. 463; UNITED STATES V. HARRISS,
347 U.S. 612; LAMBERT V. CALIFORNIA, 355 U.S. 225.  BUT THE REQUIREMENT
OF DUE PROCESS IS A LIMITATION ON POWERS GRANTED, NOT THE MEANS WHEREBY
RIGHTS GRANTED BY THE CONSTITUTION MAY BE WIPED OUT OR WATERED DOWN. 
THE FOURTEENTH AMENDMENT GRANTS CITIZENSHIP TO THE NATIVE-BORN, AS
EXPLAINED IN UNITED STATES V. WONG KIM ARK, SUPRA.  THAT RIGHT MAY BE
WAIVED OR SURRENDERED BY THE CITIZEN.  BUT I SEE NO CONSTITUTIONAL
METHOD BY WHICH IT CAN BE TAKEN FROM HIM.  CITIZENSHIP, LIKE FREEDOM OF
SPEECH, PRESS, AND RELIGION, OCCUPIES A PREFERRED POSITION IN OUR
WRITTEN CONSTITUTION, BECAUSE IT IS A GRANT ABSOLUTE IN TERMS.  THE
POWER OF CONGRESS TO WITHHOLD IT, MODIFY IT, OR CANCEL IT DOES NOT
EXIST.  ONE WHO IS NATIVE-BORN MAY BE A GOOD CITIZEN OR A POOR ONE. 
WHETHER HIS ACTIONS BE CRIMINAL OR CHARITABLE, HE REMAINS A CITIZEN FOR
BETTER OR FOR WORSE, EXCEPT AND UNLESS HE VOLUNTARILY RELINQUISHES THAT
STATUS.  WHILE CONGRESS CAN PRESCRIBE CONDITIONS FOR VOLUNTARY
EXPATRIATION, CONGRESS CANNOT TURN WHITE TO BLACK AND MAKE ANY ACT AN
ACT OF EXPATRIATION.  FOR THEN THE RIGHT GRANTED BY THE FOURTEENTH
AMENDMENT BECOMES SUBJECT TO REGULATION BY THE LEGISLATIVE BRANCH.  BUT
THAT RIGHT HAS NO SUCH INFIRMITY.  IT IS DEEPLY ROOTED IN HISTORY, AS
UNITED STATES V. WONG KIM ARK, SUPRA, SHOWS.  AND THE FOURTEENTH
AMENDMENT PUT IT ABOVE AND BEYOND LEGISLATIVE CONTROL. 

THAT MAY HAVE BEEN AN UNWISE CHOICE.  BUT WE MADE IT WHEN WE ADOPTED
THE FOURTEENTH AMENDMENT AND PROVIDED THAT THE NATIVE-BORN IS AN
AMERICAN CITIZEN.  ONCE HE ACQUIRES THAT RIGHT THERE IS NO POWER IN ANY
BRANCH OF OUR GOVERNMENT TO TAKE IT FROM HIM. 

FN1  MILLER, CRISIS IN FREEDOM (1951), 167-168, STATES THE FEDERALIST
CASE FOR THOSE LAWS: 

"AS IN THE CASE OF THE ALIEN ACT, THE FEDERALISTS JUSTIFIED THE
SEDITION LAW BY CITING THE POWER OF CONGRESS TO PROVIDE FOR THE COMMON
DEFENSE AND GENERAL WELFARE, AND THE INHERENT RIGHT OF EVERY GOVERNMENT
TO ACT IN SELF-PRESERVATION.  IN WAS PASSED AT A TIME OF NATIONAL
EMERGENCY WHEN, AS A MEMBER OF CONGRESS SAID, 'SOME GENTLEMEN SAY WE
ARE AT WAR, AND WHEN ALL BELIEVE WE MUST HAVE WAR.'  'THREATENED BY
FACTION, AND ACTUALLY AT HOSTILITY WITH A FOREIGN AND PERFIDIOUS FOE
ABROAD,' THE SEDITION ACT WAS HELD TO BE 'NECESSARY FOR THE SAFETY,
PERHAPS THE EXISTENCE OF THE GOVERNMENT.'  CONGRESS COULD NOT PERMIT
SUBVERSIVE NEWSPAPERS TO 'PARALYZE THE PUBLIC ARM, AND WEAKEN THE
EFFORTS OF GOVERNMENT FOR THE DEFENSE OF THE COUNTRY.'  THE WILES OF
FRANCE AND ITS ADHERENTS WERE AS DANGEROUS AS ITS ARMIES:  'DO NOT THE
JACOBIN FIENDS OF FRANCE USE FALSEHOOD AND ALL THE ARMS OF HELL,' ASKED
WILLIAM COBBETT, 'AND DO THEY NOT RUN LIKE HALF FAMISHED WOLVES TO
ACCOMPLISH THE DESTRUCTION OF THIS COUNTRY?'  IF CONGRESS HAD FAILED TO
TAKE EVERY PRECAUTIONARY MEASURE AGAINST SUCH DANGER, THE BLOOD OF THE
REPUBLIC WOULD HAVE BEEN UPON ITS HANDS." 

FN2  CF. KEEGAN V. UNITED STATES, 325 U.S. 478. 

FN3  SEE KENNAN, RUSSIA, THE ATOM AND THE WEST (1957). 

FN4  SEE BETTS V. BRADY, 316 U.S. 455; IN RE SUMMERS, 325 U.S. 561;
ADAMSON V. CALIFORNIA, 332 U.S. 46; BUTE V. ILLINOIS, 333 U.S. 640;
FEINER V. NEW YORK, 340 U.S. 315; BREARD V. ALEXANDRIA, 341 U.S. 622;
ADLER V. BOARD OF EDUCATION, 342 U.S. 485; BEAUHARNAIS V. ILLINOIS, 343
U.S. 250; IN RE GROBAN, 352 U.S. 330; BREITHAUPT V. ABRAM, 352 U.S.
432. 

FN5  UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75; AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382; DENNIS V. UNITED STATES,
341 U.S. 494. 

FN6  E.G., ADAMS V. MCCANN, 317 U.S. 269, 275. 

MEMORANDUM OF MR. JUSTICE WHITTAKER. 

THOUGH I AGREE WITH THE MAJOR PREMISE OF THE MAJORITY'S OPINION -
THAT CONGRESS MAY EXPATRIATE A CITIZEN FOR AN ACT WHICH IT MAY
REASONABLY FIND TO BE FRAUGHT WITH DANGER OF EMBROILING OUR GOVERNMENT
IN AN INTERNATIONAL DISPUTE OR OF EMBARRASSING IT IN THE CONDUCT OF
FOREIGH AFFAIRS - I CANNOT AGREE WITH THE RESULT REACHED, FOR IT SEEMS
PLAIN TO ME THAT SEC. 401(E) IS TOO BROADLY WRITTEN TO BE SUSTAINED
UPON THAT GROUND.  THAT SECTION, SO FAR AS HERE PERTINENT, EXPATRIATES
AN AMERICAN CITIZEN SIMPLY FOR "VOTING IN A POLITICAL ELECTION IN A
FOREIGN STATE."  VOTING IN A POLITICAL ELECTION IN A PARTICULAR FOREIGN
STATE MAY BE OPEN TO ALIENS UNDER THE LAW OF THAT STATE, AS IT WAS IN
PRESIDENTIAL ELECTIONS IN THE UNITED STATES UNTIL 1928 AS THE
DISSENTING OPINION OF THE CHIEF JUSTICE OBSERVES.  WHERE THAT IS SO -
AND THIS RECORD FAILS TO SHOW THAT PETITIONER'S ACT OF VOTING IN A
POLITICAL ELECTION IN MEXICO IN 1946 WAS NOT ENTIRELY LAWFUL UNDER THE
LAW OF THAT STATE - SUCH LEGALIZED VOTING BY AN AMERICAN CITIZEN CANNOT
REASONABLY BE SAID TO BE FRAUGHT WITH DANGER OF EMBROILING OUR
GOVERNMENT IN AN INTERNATIONAL DISPUTE OR OF EMBARRASSING IT IN THE
CONDUCT OF FOREIGN AFFAIRS, NOR, I BELIEVE, CAN SUCH AN ACT - ENTIRELY
LEGAL UNDER THE LAW OF THE FOREIGN STATE - BE REASONABLY SAID TO
CONSTITUTE AN ABANDONMENT OR ANY DIVISION OR DILUTION OF ALLEGIANCE TO
THE UNITED STATES.  SINCE THESE ARE MY CONVICTIONS, I DISSENT FROM THE
MAJORITY'S OPINION AND JOIN IN SO MUCH OF THE DISSENTING OPINION OF THE
CHIEF JUSTICE AS EXPRESSES THE VIEW THAT THE ACT OF A CITIZEN OF THE
UNITED STATES IN VOTING IN A FOREIGN POLITICAL ELECTION WHICH IS
LEGALLY OPEN TO ALIENS UNDER THE LAW OF THAT STATE CANNOT REASONABLY BE
SAID TO CONSTITUTE ABANDONMENT OR ANY DIVISION OR DILUTION OF
ALLEGIANCE TO THE UNITED STATES. 

THIS LEAVES OPEN THE QUESTION PRESENTED RESPECTING THE
CONSTITUTIONALITY OF SEC. 401(J), BUT INASMUCH AS THE MAJORITY HAVE
FOUND IT UNNECESSARY TO ADJUDICATE THE CONSTITUTIONALITY OF THAT
A CONCLUSION ON THAT QUESTION, AND I NEITHER EXPRESS NOR IMPLY ANY
VIEWS UPON IT.  LIMITING MYSELF TO THE ISSUE DECIDED BY THE MAJORITY, I
DISSENT. 
..END :










TROP V. DULLES 356 U.S. 86 


NO. 70.  ARGUED MAY 2, 1957 - RESTORED TO THE CALENDAR FOR REARGUMENT
JUNE 24, 1957 - REARGUED OCTOBER 28-29, 1957 - DECIDED MARCH 31, 1958 -
239 F.2D 527, REVERSED. 


AT LEAST AS APPLIED IN THIS CASE TO A NATIVE-BORN CITIZEN OF THE
UNITED STATES WHO DID NOT VOLUNTARILY RELINQUISH OR ABANDON HIS
CITIZENSHIP OR BECOME INVOLVED IN ANY WAY WITH A FOREIGN NATION, SEC.
401(G) OF THE NATIONALITY ACT OF 1940, AS AMENDED, WHICH PROVIDES THAT
A CITIZEN "SHALL LOSE HIS NATIONALITY" BY "DESERTING THE MILITARY OR
NAVAL FORCES OF THE UNITED STATES IN TIME OF WAR, PROVIDED HE IS
CONVICTED THEREOF BY COURT MARTIAL AND AS A RESULT OF SUCH CONVICTION
IS DISMISSED OR DISHONORABLY DISCHARGED FROM THE SERVICE," IS
UNCONSTITUTIONAL.  PP. 87-114. 

THE CHIEF JUSTICE, IN AN OPINION JOINED BY MR. JUSTICE BLACK, MR.
JUSTICE DOUGLAS AND MR. JUSTICE WHITTAKER, CONCLUDED THAT: 

1.  CITIZENSHIP IS NOT SUBJECT TO THE GENERAL POWERS OF THE NATIONAL
GOVERNMENT AND THEREFORE CANNOT BE DIVESTED IN THE EXERCISE OF THOSE
POWERS.  PP. 91-93. 

2.  EVEN IF CITIZENSHIP COULD BE DIVESTED IN THE EXERCISE OF SOME
GOVERNMENTAL POWER, SEC. 401(G) VIOLATES THE EIGHTH AMENDMENT, BECAUSE
IT IS PENAL IN NATURE AND PRESCRIBES A "CRUEL AND UNUSUAL" PUNISHMENT. 
PP. 93-104. 

MR. JUSTICE BLACK, IN AN OPINION JOINED BY MR. JUSTICE DOUGLAS,
CONCURRED IN THE OPINION OF THE CHIEF JUSTICE AND EXPRESSED THE VIEW
THAT, EVEN IF CITIZENSHIP COULD BE INVOLUNTARILY DIVESTED, THE POWER TO
DENATIONALIZE MAY NOT BE PLACED IN THE HANDS OF MILITARY AUTHORITIES. 
PP. 104-105. 

MR. JUSTICE BRENNAN, WHILE AGREEING WITH THE COURT, IN PEREZ V.
BROWNELL, ANTE, P. 44, THAT THERE IS NO CONSTITUTIONAL INFIRMITY IN
SEC. 401(E) WHICH EXPATRIATES THE CITIZEN WHO VOTES IN A FOREIGN
POLITICAL ELECTION, CONCLUDED IN THIS CASE THAT SEC. 401(G) LIES BEYOND
THE POWER OF CONGRESS TO ENACT.  PP. 105-114. 

FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR.
JUSTICE BURTON, MR. JUSTICE CLARK AND MR. JUSTICE HARLAN, SEE POST, P.
114. 

TROP V. DULLES, SECRETARY OF STATE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN ANNOUNCED THE JUDGMENT OF THE COURT AND
DELIVERED AN OPINION, IN WHICH MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS,
AND MR. JUSTICE WHITTAKER JOIN. 

THE PETITIONER IN THIS CASE, A NATIVE-BORN AMERICAN, IS DECLARED TO
HAVE LOST HIS UNITED STATES CITIZENSHIP AND BECOME STATELESS BY REASON
OF HIS CONVICTION BY COURT-MARTIAL FOR WARTIME DESERTION.   AS IN PEREZ
V. BROWNELL, ANTE, P. 44, THE ISSUE BEFORE US IS WHETHER THIS
FORFEITURE OF CITIZENSHIP COMPORTS WITH THE CONSTITUTION. 

THE FACTS ARE NOT IN DISPUTE.  IN 1944 PETITIONER WAS A PRIVATE IN
THE UNITED STATES ARMY, SERVING IN FRENCH MOROCCO.  ON MAY 22, HE
ESCAPED FROM A STOCKADE AT CASABLANCA, WHERE HE HAD BEEN CONFINED
FOLLOWING A PREVIOUS BREACH OF DISCIPLINE.  THE NEXT DAY PETITIONER AND
A COMPANION WERE WALKING ALONG A ROAD TOWARDS RABAT, IN THE GENERAL
DIRECTION BACK TO CASABLANCA, WHEN AN ARMY TRUCK APPROACHED AND
STOPPED.  A WITNESS TESTIFIED THAT PETITIONER BOARDED THE TRUCK
WILLINGLY AND THAT NO WORDS WERE SPOKEN.  IN RABAT PETITIONER WAS
TURNED OVER TO MILITARY POLICE.  THUS ENDED PETITIONER'S "DESERTION." 
HE HAD BEEN GONE LESS THAN A DAY AND HAD WILLINGLY SURRENDERED TO AN
OFFICER ON AN ARMY VEHICLE WHILE HE WAS WALKING BACK TOWARDS HIS BASE. 
HE TESTIFIED THAT AT THE TIME HE AND HIS COMPANION WERE PICKED UP BY
THE ARMY TRUCK, "WE HAD DECIDED TO RETURN TO THE STOCKADE.  THE GOING
WAS TOUGH.  WE HAD NO MONEY TO SPEAK OF, AND AT THE TIME WE WERE ON
FOOT AND WE WERE GETTING COLD AND HUNGRY."  A GENERAL COURT-MARTIAL
CONVICTED PETITIONER OF DESERTION AND SENTENCED HIM TO THREE YEARS AT
HARD LABOR, FORFEITURE OF ALL PAY AND ALLOWANCES AND A DISHONORABLE
DISCHARGE. 

IN 1952 PETITIONER APPLIED FOR A PASSPORT.  HIS APPLICATION WAS
DENIED ON THE GROUND THAT UNDER THE PROVISIONS OF SECTION 401(G) OF THE
NATIONALITY ACT OF 1940, AS AMENDED, (FN1) HE HAD LOST HIS CITIZENSHIP
BY REASON OF HIS CONVICTION AND DISHONORABLE DISCHARGE FOR WARTIME
DESERTION.  IN 1955 PETITIONER COMMENCED THIS ACTION IN THE DISTRICT
COURT, SEEKING A DECLARATORY JUDGMENT THAT HE IS A CITIZEN.  THE
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT WAS GRANTED, AND THE COURT OF
APPEALS FOR THE SECOND CIRCUIT AFFIRMED, CHIEF JUDGE CLARK DISSENTING. 
239 F.2D 527.  WE GRANTED CERTIORARI.  352 U.S. 1023. 

PETITIONER'S CITIZENSHIP, IS BASED DIRECTLY ON A CIVIL WAR STATUTE,
WHICH PROVIDED THAT A DESERTER WOULD LOSE HIS "RIGHTS OF CITIZENSHIP." 
(FN2)  THE MEANING OF THIS PHRASE WAS NOT CLEAR.  (FN3)  WHEN THE 1940
CODIFICATION AND REVISION OF THE NATIONALITY LAWS WAS PREPARED, THE
CIVIL WAR STATUTE WAS AMENDED TO MAKE IT CERTAIN THAT WHAT A CONVICTED
DESERTER WOULD LOSE WAS NATIONALITY ITSELF.  (FN4)  IN 1944 THE STATUTE
WAS FURTHER AMENDED TO PROVIDE THAT A CONVICTED DESERTER WOULD LOSE HIS
CITIZENSHIP ONLY IF HE WAS DISMISSED FROM THE SERVICE OR DISHONORABLY
DISCHARGED.  (FN5)  AT THE SAME TIME IT WAS PROVIDED THAT CITIZENSHIP
COULD BE REGAINED IF THE DESERTER WAS RESTORED TO ACTIVE DUTY IN
WARTIME WITH THE PERMISSION OF THE MILITARY AUTHORITIES. 

THOUGH THESE AMENDMENTS WERE ADDED TO AMELIORATE THE HARSHNESS OF THE
STATUTE, (FN6) THEIR COMBINED EFFECT PRODUCES A RESULT THAT POSES FAR
GRAVER PROBLEMS THAN THE ONES THAT WERE SOUGHT TO BE SOLVED.  SECTION
401(G) AS AMENDED NOW GIVES THE MILITARY AUTHORITIES COMPLETE
DISCRETION TO DECIDE WHO AMONG CONVICTED DESERTERS SHALL CONTINUE TO BE
AMERICANS AND WHO SHALL BE STATELESS.  BY DECIDING WHETHER TO ISSUE AND
EXECUTE A DISHONORABLE DISCHARGE AND WHETHER TO ALLOW A DESERTER TO RE
ENTER THE ARMED FORCES, THE MILITARY BECOMES THE ARBITER OF
CITIZENSHIP.  AND THE DOMAIN GIVEN TO IT BY CONGRESS IS NOT AS NARROW
AS MIGHT BE SUPPOSED.  THOUGH THE CRIME OF DESERTION IS ONE OF THE MOST
SERIOUS IN MILITARY LAW, IT IS BY NO MEANS A RARE EVENT FOR A SOLDIER
TO BE CONVICTED OF THIS CRIME.  THE ELEMENTS OF DESERTION ARE SIMPLY
ABSENCE FROM DUTY PLUS THE INTENTION NOT TO RETURN.  (FN7)  INTO THIS
CATEGORY FALLS A GREAT RANGE OF CONDUCT, WHICH MAY BE PROMPTED BY A
VARIETY OF MOTIVES - FEAR, LAZINESS, HYSTERIA OR ANY EMOTIONAL
IMBALANCE.  THE OFFENSE MAY OCCUR NOT ONLY IN COMBAT BUT ALSO IN
TRAINING CAMPS FOR DRAFTEES IN THIS COUNTRY.  (FN8)  THE SOLICITOR
GENERAL INFORMED THE COURT THAT DURING WORLD WAR II, ACCORDING TO ARMY
ESTIMATES, APPROXIMATELY 21,000 SOLDIERS AND AIRMEN WERE CONVICTED OF
DESERTION AND GIVEN DISHONORABLE DISCHARGES BY THE SENTENCING COURTS
MARTIAL AND THAT ABOUT 7,000 OF THESE WERE ACTUALLY SEPARATED FROM THE
SERVICE AND THUS RENDERED STATELESS WHEN THE REVIEWING AUTHORITIES
REFUSED TO REMIT THEIR DISHONORABLE DISCHARGES.  OVER THIS GROUP OF
MEN, ENLARGED BY WHATEVER THE CORRESPONDING FIGURES MAY BE FOR THE NAVY
AND MARINES, THE MILITARY HAS BEEN GIVEN THE POWER TO GRANT OR WITHHOLD
CITIZENSHIP.  AND THE NUMBER OF YOUTHS SUBJECT TO THIS POWER COULD
EASILY BE ENLARGED SIMPLY BY EXPANDING THE STATUTE TO COVER CRIMES
OTHER THAN DESERTION.  FOR INSTANCE, A DISHONORABLE DISCHARGE ITSELF
MIGHT IN THE FUTURE BE DECLARED TO BE SUFFICIENT TO JUSTIFY FORFEITURE
OF CITIZENSHIP. 

THREE TIMES IN THE PAST THREE YEARS WE HAVE BEEN CONFRONTED WITH
CASES PRESENTING IMPORTANT QUESTIONS BEARING ON THE PROPER RELATIONSHIP
BETWEEN CIVILIAN AND MILITARY AUTHORITY IN THIS COUNTRY.  (FN9)  A
STATUTE SUCH AS SECTION 401(G) RAISES SERIOUS ISSUES IN THIS AREA, BUT
IN OUR VIEW OF THIS CASE IT IS UNNECESSARY TO DEAL WITH THOSE
PROBLEMS.  WE CONCLUDE THAT THE JUDGMENT IN THIS CASE MUST BE REVERSED
FOR THE FOLLOWING REASONS. 

  I. 

IN PEREZ V. BROWNELL, SUPRA, I EXPRESSED THE PRINCIPLES THAT I
BELIEVE GOVERN THE CONSTITUTIONAL STATUS OF UNITED STATES CITIZENSHIP. 
IT IS MY CONVICTION THAT CITIZENSHIP IS NOT SUBJECT TO THE GENERAL
POWERS OF THE NATIONAL GOVERNMENT AND THEREFORE CANNOT BE DIVESTED IN
THE EXERCISE OF THOSE POWERS.  THE RIGHT MAY BE VOLUNTARILY
RELINQUISHED OR ABANDONED EITHER BY EXPRESS LANGUAGE OR BY LANGUAGE AND
CONDUCT THAT SHOW A RENUNCIATION OF CITIZENSHIP. 

UNDER THESE PRINCIPLES, THIS PETITIONER HAS NOT LOST HIS
CITIZENSHIP.  DESERTION IN WARTIME, THOUGH IT MAY MERIT THE ULTIMATE
PENALTY, DOES NOT NECESSARILY SIGNIFY ALLEGIANCE TO A FOREIGN STATE. 
THERE IS NO SUCH ELEMENT IN THIS CASE.  THIS SOLDIER COMMITTED A CRIME
FOR WHICH HE SHOULD BE AND WAS PUNISHED, BUT HE DID NOT INVOLVE HIMSELF
IN ANY WAY WITH A FOREIGN STATE.  THERE WAS NO DILUTION OF HIS
ALLEGIANCE TO THIS COUNTRY.  THE FACT THAT THE DESERTION OCCURRED ON
FOREIGN SOIL IS OF NO CONSEQUENCE.  THE SOLICITOR GENERAL ACKNOWLEDGED
THAT FORFEITURE OF CITIZENSHIP WOULD HAVE OCCURRED IF THE ENTIRE
INCIDENT HAD TRANSPIRED IN THIS COUNTRY. 

CITIZENSHIP IS NOT A LICENSE THAT EXPIRES UPON MISBEHAVIOR.  THE
DUTIES OF CITIZENSHIP ARE NUMEROUS, AND THE DISCHARGE OF MANY OF THESE
OBLIGATIONS IS ESSENTIAL TO THE SECURITY AND WELL-BEING OF THE NATION. 
THE CITIZEN WHO FAILS TO PAY HIS TAXES OR TO ABIDE BY THE LAWS
SAFEGUARDING THE INTEGRITY OF ELECTIONS DEALS A DANGEROUS BLOW TO THIS
COUNTRY.  BUT COULD A CITIZEN BE DEPRIVED OF HIS NATIONALITY FOR
EVADING THESE BASIC RESPONSIBILITIES OF CITIZENSHIP?  IN TIME OF WAR
THE CITIZEN'S DUTIES INCLUDE NOT ONLY THE MILITARY DEFENSE OF THE
NATION BUT ALSO FULL PARTICIPATION IN THE MANIFOLD ACTIVITIES OF THE
CIVILIAN RANKS.  FAILURE TO PERFORM ANY OF THESE OBLIGATIONS MAY CAUSE
THE NATION SERIOUS INJURY, AND, IN APPROPRIATE CIRCUMSTANCES, THE
PUNISHING POWER IS AVAILABLE TO DEAL WITH DERELICTIONS OF DUTY.  BUT
CITIZENSHIP IS NOT LOST EVERY TIME A DUTY OF CITIZENSHIP IS SHIRKED. 
AND THE DEPRIVATION OF CITIZENSHIP IS NOT A WEAPON THAT THE GOVERNMENT
MAY USE TO EXPRESS ITS DISPLEASURE AT A CITIZEN'S CONDUCT, HOWEVER
REPREHENSIBLE THAT CONDUCT MAY BE.  AS LONG AS A PERSON DOES NOT
VOLUNTARILY RENOUNCE OR ABANDON HIS CITIZENSHIP, AND THIS PETITIONER
HAS DONE NEITHER, I BELIEVE HIS FUNDAMENTAL RIGHT OF CITIZENSHIP IS
SECURE.  ON THIS GROUND ALONE THE JUDGMENT IN THIS CASE SHOULD BE
REVERSED. 

                      II. 

SINCE A MAJORITY OF THE COURT CONCLUDED IN PEREZ V. BROWNELL THAT
CITIZENSHIP MAY BE DIVESTED IN THE EXERCISE OF SOME GOVERNMENTAL POWER,
I DEEM IT APPROPRIATE TO STATE ADDITIONALLY WHY THE ACTION TAKEN IN
THIS CASE EXCEEDS CONSTITUTIONAL LIMITS, EVEN UNDER THE MAJORITY'S
DECISION IN PEREZ.  THE COURT CONCLUDED IN PEREZ THAT CITIZENSHIP COULD
BE DIVESTED IN THE EXERCISE OF THE FOREIGN AFFAIRS POWER.  IN THIS
CASE, IT IS URGED THAT THE WAR POWER IS ADEQUATE TO SUPPORT THE
DIVESTMENT OF CITIZENSHIP.  BUT THERE IS A VITAL DIFFERENCE BETWEEN THE
TWO STATUTES THAT PURPORT TO IMPLEMENT THESE POWERS BY DECREEING LOSS
OF CITIZENSHIP.  THE STATUTE IN PEREZ DECREED LOSS OF CITIZENSHIP - SO
THE MAJORITY CONCLUDED - TO ELIMINATE THOSE INTERNATIONAL PROBLEMS THAT
WERE THOUGHT TO ARISE BY REASON OF A CITIZEN'S HAVING VOTED IN A
FOREIGN ELECTION.  THE STATUTE IN THIS CASE, HOWEVER, IS ENTIRELY
DIFFERENT.  SECTION 401(G) DECREES LOSS OF CITIZENSHIP FOR THOSE FOUND
GUILTY OF THE CRIME OF DESERTION.  IT IS ESSENTIALLY LIKE SECTION
401(J) OF THE NATIONALITY ACT, DECREEING LOSS OF CITIZENSHIP FOR
EVADING THE DRAFT BY REMAINING OUTSIDE THE UNITED STATES.  (FN10)  THIS
PROVISION WAS ALSO BEFORE THE COURT IN PEREZ, BUT THE MAJORITY DECLINED
TO CONSIDER ITS VALIDITY.  WHILE SECTION 401(J) DECREES LOSS OF
CITIZENSHIP WITHOUT PROVIDING ANY SEMBLANCE OF PROCEDURAL DUE PROCESS
WHEREBY THE GUILT OF THE DRAFT EVADER MAY BE DETERMINED BEFORE THE
SANCTION IS IMPOSED, SECTION 401(G), THE PROVISION IN THIS CASE,
ACCORDS THE ACCUSED DESERTER AT LEAST THE SAFEGUARDS OF AN ADJUDICATION
OF GUILT BY A COURT-MARTIAL. 

THE CONSTITUTIONAL QUESTION POSED BY SECTION 401(G) WOULD APPEAR TO
BE WHETHER OR NOT DENATIONALIZATION MAY BE INFLICTED AS A PUNISHMENT,
EVEN ASSUMING THAT CITIZENSHIP MAY BE DIVESTED PURSUANT TO SOME
GOVERNMENTAL POWER.  BUT THE GOVERNMENT CONTENDS THAT THIS STATUTE DOES
NOT IMPOSE A PENALTY AND THAT CONSTITUTIONAL LIMITATIONS ON THE POWER
OF CONGRESS TO PUNISH ARE THEREFORE INAPPLICABLE.  WE ARE TOLD THIS IS
SO BECAUSE A COMMITTEE OF CABINET MEMBERS, IN RECOMMENDING THIS
LEGISLATION TO THE CONGRESS, SAID IT "TECHNICALLY IS NOT A PENAL LAW." 
(FN11)  HOW SIMPLE WOULD BE THE TASKS OF CONSTITUTIONAL ADJUDICATION
AND OF LAW GENERALLY IF SPECIFIC PROBLEMS COULD BE SOLVED BY INSPECTION
OF THE LABELS PASTED ON THEM]  MANIFESTLY THE ISSUE OF WHETHER SECTION
401(G) IS A PENAL LAW CANNOT BE THUS DETERMINED.  OF COURSE IT IS
RELEVANT TO KNOW THE CLASSIFICATION EMPLOYED BY THE CABINET COMMITTEE
THAT PLAYED SUCH AN IMPORTANT ROLE IN THE PREPARATION OF THE
NATIONALITY ACT OF 1940.  BUT IT IS EQUALLY RELEVANT TO KNOW THAT THIS
VERY COMMITTEE ACKNOWLEDGED THAT SECTION 401(G) WAS BASED ON THE
PROVISIONS OF THE 1865 CIVIL WAR STATUTE, WHICH THE COMMITTEE ITSELF
TERMED "DISTINCTLY PENAL IN CHARACTER."  (FN12)  FURTHERMORE, THE 1865
STATUTE STATES IN TERMS THAT DEPRIVATION OF THE RIGHTS OF CITIZENSHIP
IS "IN ADDITION TO THE OTHER LAWFUL PENALTIES OF THE CRIME OF DESERTION
...  ."  (FN13)  AND CERTAINLY IT IS RELEVANT TO KNOW THAT THE REASON
GIVEN BY THE SENATE COMMITTEE ON IMMIGRATION AS TO WHY LOSS OF
NATIONALITY UNDER SECTION 401(G) CAN FOLLOW DESERTION ONLY AFTER
CONVICTION BY COURT-MARTIAL WAS "BECAUSE THE PENALTY IS SO DRASTIC." 
(FN14) DOUBTLESS EVEN A CLEAR LEGISLATIVE CLASSIFICATION OF A STATUTE
AS "NON-PENAL" WOULD NOT ALTER THE FUNDAMENTAL NATURE OF A PLAINLY
PENAL STATUTE.  (FN15)  WITH REGARD TO SECTION 401(G) THE FACT IS THAT
THE VIEWS OF THE CABINET COMMITTEE AND OF THE CONGRESS ITSELF AS TO THE
NATURE OF THE STATUTE ARE EQUIVOCAL, AND CANNOT POSSIBLY PROVIDE THE
ANSWER TO OUR INQUIRY.  DETERMINATION OF WHETHER THIS STATUTE IS A
PENAL LAW REQUIRES CAREFUL CONSIDERATION. 

IN FORM SECTION 401(G) APPEARS TO BE A REGULATION OF NATIONALITY. 
THE STATUTE DEALS INITIALLY WITH THE STATUS OF NATIONALITY AND THEN
SPECIFIES THE CONDUCT THAT WILL RESULT IN LOSS OF THAT STATUS.  BUT
SURELY FORM CANNOT PROVIDE THE ANSWER TO THIS INQUIRY.  A STATUTE
PROVIDING THAT "A PERSON SHALL LOSE HIS LIBERTY BY COMMITTING BANK
ROBBERY," THOUGH IN FORM A REGULATION OF LIBERTY, WOULD NONETHELESS BE
PENAL.  NOR WOULD ITS PENAL EFFECT BE ALTERED BY LABELING IT A
REGULATION OF BANKS OR BY ARGUING THAT THERE IS A RATIONAL CONNECTION
BETWEEN SAFEGUARDING BANKS AND IMPRISONING BANK ROBBERS.  THE INQUIRY
MUST BE DIRECTED TO SUBSTANCE. 

THIS COURT HAS BEEN CALLED UPON TO DECIDE WHETHER OR NOT VARIOUS
STATUTES WERE PENAL EVER SINCE 1798.  CALDER V. BULL, 3 DALL.  386. 
EACH TIME A STATUTE HAS BEEN CHALLENGED AS BEING IN CONFLICT WITH THE
CONSTITUTIONAL PROHIBITIONS AGAINST BILLS OF ATTAINDER AND EX POST
FACTO LAWS, (FN16) IT HAS BEEN NECESSARY TO DETERMINE WHETHER A PENAL
LAW WAS INVOLVED, BECAUSE THESE PROVISIONS APPLY ONLY TO STATUTES
IMPOSING PENALTIES.  (FN17)  IN DECIDING WHETHER OR NOT A LAW IS PENAL,
THIS COURT HAS GENERALLY BASED ITS DETERMINATION UPON THE PURPOSE OF
THE STATUTE.  (FN18)  IF THE STATUTE IMPOSES A DISABILITY FOR THE
PURPOSES OF PUNISHMENT - THAT IS, TO REPRIMAND THE WRONGDOER, TO DETER
OTHERS, ETC. - IT HAS BEEN CONSIDERED PENAL.  (FN19)  BUT A STATUTE HAS
BEEN CONSIDERED NONPENAL IF IT IMPOSES A DISABILITY, NOT TO PUNISH, BUT
TO ACCOMPLISH SOME OTHER LEGITIMATE GOVERNMENTAL PURPOSE.  (FN20)  THE
COURT HAS RECOGNIZED THAT ANY STATUTE DECREEING SOME ADVERSITY AS A
CONSEQUENCE OF CERTAIN CONDUCT MAY HAVE BOTH A PENAL AND A NONPENAL
EFFECT.  THE CONTROLLING NATURE OF SUCH STATUTES NORMALLY DEPENDS ON
THE EVIDENT PURPOSE OF THE LEGISLATURE.  THE POINT MAY BE ILLUSTRATED
BY THE SITUATION OF AN ORDINARY FELON.  A PERSON WHO COMMITS A BANK
ROBBERY, FOR INSTANCE, LOSES HIS RIGHT TO LIBERTY AND OFTEN HIS RIGHT
TO VOTE.  (FN21)  IF, IN THE EXERCISE OF THE POWER TO PROTECT BANKS,
BOTH SANCTIONS WERE IMPOSED FOR THE PURPOSE OF PUNISHING BANK ROBBERS,
THE STATUTES AUTHORIZING BOTH DISABILITIES WOULD BE PENAL.  BUT BECAUSE
THE PURPOSE OF THE LATTER STATUTE IS TO DESIGNATE A REASONABLE GROUND
OF ELIGIBILITY FOR VOTING, THIS LAW IS SUSTAINED AS A NONPENAL EXERCISE
OF THE POWER TO REGULATE THE FRANCHISE.  (FN22) 

THE SAME REASONING APPLIES TO SECTION 401(G).  THE PURPOSE OF TAKING
AWAY CITIZENSHIP FROM A CONVICTED DESERTER IS SIMPLY TO PUNISH HIM. 
THERE IS NO OTHER LEGITIMATE PURPOSE THAT THE STATUTE COULD SERVE. 
DENATIONALIZATION IN THIS CASE IS NOT EVEN CLAIMED TO BE A MEANS OF
SOLVING INTERNATIONAL PROBLEMS, AS WAS ARGUED IN PEREZ.  HERE THE
PURPOSE IS PUNISHMENT, AND THEREFORE THE STATUTE IS A PENAL LAW. 

IT IS URGED THAT THIS STATUTE IS NOT A PENAL LAW BUT A REGULATORY
PROVISION AUTHORIZED BY THE WAR POWER.  IT CANNOT BE DENIED THAT
CONGRESS HAS POWER TO PRESCRIBE RULES GOVERNING THE PROPER PERFORMANCE
OF MILITARY OBLIGATIONS, OF WHICH PERHAPS THE MOST SIGNIFICANT IS THE
PERFORMANCE OF ONE'S DUTY WHEN HAZARDOUS OR IMPORTANT SERVICE IS
REQUIRED.  BUT A STATUTE THAT PRESCRIBES THE CONSEQUENCE THAT WILL
BEFALL ONE WHO FAILS TO ABIDE BY THESE REGULATORY PROVISIONS IS A PENAL
LAW.  PLAINLY LEGISLATION PRESCRIBING IMPRISONMENT FOR THE CRIME OF
DESERTION IS PENAL IN NATURE.  IF LOSS OF CITIZENSHIP IS SUBSTITUTED
FOR IMPRISONMENT, IT CANNOT FAIRLY BE SAID THAT THE USE OF THIS
PARTICULAR SANCTION TRANSFORMS THE FUNDAMENTAL NATURE OF THE STATUTE. 
IN FACT, A DISHONORABLE DISCHARGE WITH CONSEQUENT LOSS OF CITIZENSHIP
MIGHT BE THE ONLY PUNISHMENT METED OUT BY A COURT-MARTIAL.  DURING
WORLD WAR II THE THREAT OF THIS PUNISHMENT WAS EXPLICITLY COMMUNICATED
BY THE ARMY TO SOLDIERS IN THE FIELD.  (FN23)  IF THIS STATUTE TAKING
AWAY CITIZENSHIP IS A CONGRESSIONAL EXERCISE OF THE WAR POWER, THEN IT
CANNOT RATIONALLY BE TREATED OTHER THAN AS A PENAL LAW, BECAUSE IT
IMPOSES THE SANCTION OF DENATIONALIZATION FOR THE PURPOSE OF PUNISHING
TRANSGRESSION OF A STANDARD OF CONDUCT PRESCRIBED IN THE EXERCISE OF
THAT POWER. 

THE GOVERNMENT ARGUES THAT THE SANCTION OF DENATIONALIZATION IMPOSED
BY SECTION 401(G) IS NOT A PENALTY BECAUSE DEPORTATION HAS NOT BEEN SO
CONSIDERED BY THIS COURT.  WHILE DEPORTATION IS UNDOUBTEDLY A HARSH
SANCTION THAT HAS A SEVERE PENAL EFFECT, THIS COURT HAS IN THE PAST
SUSTAINED DEPORTATION AS AN EXERCISE OF THE SOVEREIGN'S POWER TO
DETERMINE THE CONDITIONS UPON WHICH AN ALIEN MAY RESIDE IN THIS
COUNTRY.  (FN24)  FOR EXAMPLE, THE STATUTE (FN25) AUTHORIZING
DEPORTATION OF AN ALIEN CONVICTED UNDER THE 1917 ESPIONAGE ACT (FN26)
WAS VIEWED, NOT AS DESIGNED TO PUNISH HIM FOR THE CRIME OF ESPIONAGE,
BUT AS AN IMPLEMENTATION OF THE SOVEREIGN POWER TO EXCLUDE, FROM WHICH
THE DEPORTING POWER IS DERIVED.  MAHLER V. EBY, 264 U.S. 32.  THIS VIEW
OF DEPORTATION MAY BE HIGHLY FICTIONAL, BUT EVEN IF ITS VALIDITY IS
CONCEDED, IT IS WHOLLY INAPPLICABLE TO THIS CASE.  NO ONE CONTENDS THAT
THE GOVERNMENT HAS, IN ADDITION TO THE POWER TO EXCLUDE ALL ALIENS, A
SWEEPING POWER TO DENATIONALIZE ALL CITIZENS.  NOR DOES COMPARISON TO
DENATURALIZATION ELIMINATE THE PENAL EFFECT OF DENATIONALIZATION IN
THIS CASE.  DENATURALIZATION IS NOT IMPOSED TO PENALIZE THE ALIEN FOR
HAVING FALSIFIED HIS APPLICATION FOR CITIZENSHIP; IF IT WERE, IT WOULD
BE A PUNISHMENT.  RATHER, IT IS IMPOSED IN THE EXERCISE OF THE POWER TO
MAKE RULES FOR THE NATURALIZATION OF ALIENS.  (FN27)  IN SHORT, THE
FACT THAT DEPORTATION AND DENATURALIZATION FOR FRAUDULENT PROCUREMENT
OF CITIZENSHIP MAY BE IMPOSED FOR PURPOSES OTHER THAN PUNISHMENT
AFFORDS NO BASIS FOR SAYING THAT IN THIS CASE DENATIONALIZATION IS NOT
A PUNISHMENT. 

THE CONSTITUTION PERMITS THE CONGRESS TO TAKE AWAY CITIZENSHIP AS A
PUNISHMENT FOR CRIME.  IF IT IS ASSUMED THAT THE POWER OF CONGRESS
EXTENDS TO DIVESTMENT OF CITIZENSHIP, THE PROBLEM STILL REMAINS AS TO
THIS STATUTE WHETHER DENATIONALIZATION IS A CRUEL AND UNUSUAL
PUNISHMENT WITHIN THE MEANING OF THE EIGHTH AMENDMENT.  (FN28)  SINCE
WARTIME DESERTION IS PUNISHABLE BY DEATH, THERE CAN BE NO ARGUMENT THAT
THE PENALTY OF DENATIONALIZATION IS EXCESSIVE IN RELATION TO THE
GRAVITY OF THE CRIME.  THE QUESTION IS WHETHER THIS PENALTY SUBJECTS
THE INDIVIDUAL TO A FATE FORBIDDEN BY THE PRINCIPLE OF CIVILIZED
TREATMENT GUARANTEED BY THE EIGHTH AMENDMENT. 

AT THE OUTSET, LET US PUT TO ONE SIDE THE DEATH PENALTY AS AN INDEX
OF THE CONSTITUTIONAL LIMIT ON PUNISHMENT.  WHATEVER THE ARGUMENTS MAY
BE AGAINST CAPITAL PUNISHMENT, BOTH ON MORAL GROUNDS AND IN TERMS OF
ACCOMPLISHING THE PURPOSES OF PUNISHMENT - AND THEY ARE FORCEFUL - THE
DEATH PENALTY HAS BEEN EMPLOYED THROUGHOUT OUR HISTORY, AND, IN A DAY
WHEN IT IS STILL WIDELY ACCEPTED, IT CANNOT BE SAID TO VIOLATE THE
CONSTITUTIONAL CONCEPT OF CRUELTY.  BUT IT IS EQUALLY PLAIN THAT THE
EXISTENCE OF THE DEATH PENALTY IS NOT A LICENSE TO THE GOVERNMENT TO
DEVISE ANY PUNISHMENT SHORT OF DEATH WITHIN THE LIMIT OF ITS
IMAGINATION. 

THE EXACT SCOPE OF THE CONSTITUTIONAL PHRASE "CRUEL AND UNUSUAL" HAS
NOT BEEN DETAILED BY THIS COURT.  (FN29)  BUT THE BASIC POLICY
REFLECTED IN THESE WORDS IS FIRMLY ESTABLISHED IN THE ANGLO-AMERICAN
TRADITION OF CRIMINAL JUSTICE.  THE PHRASE IN OUR CONSTITUTION WAS
TAKEN DIRECTLY FROM THE ENGLISH DECLARATION OF RIGHTS OF 1688, (FN30)
AND THE PRINCIPLE IT REPRESENTS CAN BE TRACED BACK TO THE MAGNA CARTA. 
(FN31)  THE BASIC CONCEPT UNDERLYING THE EIGHTH AMENDMENT IS NOTHING
LESS THAN THE DIGNITY OF MAN.  WHILE THE STATE HAS THE POWER TO PUNISH,
THE AMENDMENT STANDS TO ASSURE THAT THIS POWER BE EXERCISED WITHIN THE
LIMITS OF CIVILIZED STANDARDS.  FINES, IMPRISONMENT AND EVEN EXECUTION
MAY BE IMPOSED DEPENDING UPON THE ENORMITY OF THE CRIME, BUT ANY
TECHNIQUE OUTSIDE THE BOUNDS OF THESE TRADITIONAL PENALTIES IS
CONSTITUTIONALLY SUSPECT.  THIS COURT HAS HAD LITTLE OCCASION TO GIVE
PRECISE CONTENT TO THE EIGHTH AMENDMENT, AND, IN AN ENLIGHTENED
DEMOCRACY SUCH AS OURS, THIS IS NOT SURPRISING.  BUT WHEN THE COURT WAS
CONFRONTED WITH A PUNISHMENT OF 12 YEARS IN IRONS AT HARD AND PAINFUL
LABOR IMPOSED FOR THE CRIME OF FALSIFYING PUBLIC RECORDS, IT DID NOT
HESITATE TO DECLARE THAT THE PENALTY WAS CRUEL IN ITS EXCESSIVENESS AND
UNUSUAL IN ITS CHARACTER.  WEEMS V. UNITED STATES, 217 U.S. 349.  THE
COURT RECOGNIZED IN THAT CASE THAT THE WORDS OF THE AMENDMENT ARE NOT
PRECISE, (FN32) AND THAT THEIR SCOPE IS NOT STATIC.  THE AMENDMENT MUST
DRAW ITS MEANING FROM THE EVOLVING STANDARDS OF DECENCY THAT MARK THE
PROGRESS OF A MATURING SOCIETY. 

WE BELIEVE, AS DID CHIEF JUDGE CLARK IN THE COURT BELOW, (FN33) THAT
USE OF DENATIONALIZATION AS A PUNISHMENT IS BARRED BY THE EIGHTH
AMENDMENT.  THERE MAY BE INVOLVED NO PHYSICAL MISTREATMENT, NO
PRIMITIVE TORTURE.  THERE IS INSTEAD THE TOTAL DESTRUCTION OF THE
INDIVIDUAL'S STATUS IN ORGANIZED SOCIETY.  IT IS A FORM OF PUNISHMENT
MORE PRIMITIVE THAN TORTURE, FOR IT DESTROYS FOR THE INDIVIDUAL THE
POLITICAL EXISTENCE THAT WAS CENTURIES IN THE DEVELOPMENT.  THE
PUNISHMENT STRIPS THE CITIZEN OF HIS STATUS IN THE NATIONAL AND
INTERNATIONAL POLITICAL COMMUNITY.  HIS VERY EXISTENCE IS AT THE
SUFFERANCE OF THE COUNTRY IN WHICH HE HAPPENS TO FIND HIMSELF.  WHILE
ANY ONE COUNTRY MAY ACCORD HIM SOME RIGHTS, AND PRESUMABLY AS LONG AS
HE REMAINED IN THIS COUNTRY HE WOULD ENJOY THE LIMITED RIGHTS OF AN
ALIEN, NO COUNTRY NEED DO SO BECAUSE HE IS STATELESS.  FURTHERMORE, HIS
ENJOYMENT OF EVEN THE LIMITED RIGHTS OF AN ALIEN MIGHT BE SUBJECT OT
TERMINATION AT ANY TIME BY REASON OF DEPORTATION.  (FN34)  IN SHORT,
THE EXPATRIATE HAS LOST THE RIGHT TO HAVE RIGHTS. 

THIS PUNISHMENT IS OFFENSIVE TO CARDINAL PRINCIPLES FOR WHICH THE
CONSTITUTION STANDS.  IT SUBJECTS THE INDIVIDUAL TO A FATE OF EVER
INCREASING FEAR AND DISTRESS.  HE KNOWS NOT WHAT DISCRIMINATIONS MAY BE
ESTABLISHED AGAINST HIM, WHAT PROSCRIPTIONS MAY BE DIRECTED AGAINST
HIM, AND WHEN AND FOR WHAT CAUSE HIS EXISTENCE IN HIS NATIVE LAND MAY
BE TERMINATED.  HE MAY BE SUBJECT TO BANISHMENT, A FATE UNIVERSALLY
DECRIED BY CIVILIZED PEOPLE.  HE IS STATELESS, A CONDITION DEPLORED IN
THE INTERNATIONAL COMMUNITY OF DEMOCRACIES.  (FN35)  IT IS NO ANSWER TO
SUGGEST THAT ALL THE DISASTROUS CONSEQUENCES OF THIS FATE MAY NOT BE
BROUGHT TO BEAR ON A STATELESS PERSON.  THE THREAT MAKES THE PUNISHMENT
OBNOXIOUS.  (FN36) 

THE CIVILIZED NATIONS OF THE WORLD ARE IN VIRTUAL UNANIMITY THAT
STATELESSNESS IS NOT TO BE IMPOSED AS PUNISHMENT FOR CRIME.  IT IS TRUE
THAT SEVERAL COUNTRIES PRESCRIBE EXPATRIATION IN THE EVENT THAT THEIR
NATIONALS ENGAGE IN CONDUCT IN DEROGATION OF NATIVE ALLEGIANCE.  (FN37)
EVEN STATUTES OF THIS SORT ARE GENERALLY APPLICABLE PRIMARILY TO
NATURALIZED CITIZENS.  BUT USE OF DENATIONALIZATION AS PUNISHMENT FOR
CRIME IS AN ENTIRELY DIFFERENT MATTER.  THE UNITED NATIONS' SURVEY ON
THE NATIONALITY LAWS OF 84 NATIONS OF THE WORLD REVEALS THAT ONLY TWO
COUNTRIES, THE PHILIPPINES AND TURKEY, IMPOSE DENATIONALIZATION AS A
PENALTY FOR DESERTION.  (FN38)  IN THIS COUNTRY THE EIGHTH AMENDMENT
FORBIDS THIS TO BE DONE. 

IN CONCLUDING AS WE DO THAT THE EIGHTH AMENDMENT FORBIDS CONGRESS TO
PUNISH BY TAKING AWAY CITIZENSHIP, WE ARE MINDFUL OF THE GRAVITY OF THE
ISSUE INEVITABLY RAISED WHENEVER THE CONSTITUTIONALITY OF AN ACT OF THE
NATIONAL LEGISLATURE IS CHALLENGED.  NO MEMBER OF THE COURT BELIEVES
THAT IN THIS CASE THE STATUTE BEFORE US CAN BE CONSTRUED TO AVOID THE
ISSUE OF CONSTITUTIONALITY.  THAT ISSUE CONFRONTS US, AND THE TASK OF
RESOLVING IT IS INESCAPABLY OURS.  THIS TASK REQUIRES THE EXERCISE OF
JUDGMENT, NOT THE RELIANCE UPON PERSONAL PREFERENCES.  COURTS MUST NOT
CONSIDER THE WISDOM OF STATUTES BUT NEITHER CAN THEY SANCTION AS BEING
MERELY UNWISE THAT WHICH THE CONSTITUTION FORBIDS. 

WE ARE OATH-BOUND TO DEFEND THE CONSTITUTION.  THIS OBLIGATION
REQUIRES THAT CONGRESSIONAL ENACTMENTS BE JUDGED BY THE STANDARDS OF
THE CONSTITUTION.  THE JUDICIARY HAS THE DUTY OF IMPLEMENTING THE
CONSTITUTIONAL SAFEGUARDS THAT PROTECT INDIVIDUAL RIGHTS.  WHEN THE
GOVERNMENT ACTS TO TAKE AWAY THE FUNDAMENTAL RIGHT OF CITIZENSHIP, THE
SAFEGUARDS OF THE CONSTITUTION SHOULD BE EXAMINED WITH SPECIAL
DILIGENCE. 

THE PROVISIONS OF THE CONSTITUTION ARE NOT TIME-WORN ADAGES OR HOLLOW
SHIBBOLETHS.  THEY ARE VITAL, LIVING PRINCIPLES THAT AUTHORIZE AND
LIMIT GOVERNMENTAL POWERS IN OUR NATION.  THEY ARE THE RULES OF
GOVERNMENT.  WHEN THE CONSTITUTIONALITY OF AN ACT OF CONGRESS IS
CHALLENGED IN THIS COURT, WE MUST APPLY THOSE RULES.  IF WE DO NOT, THE
WORDS OF THE CONSTITUTION BECOME LITTLE MORE THAN GOOD ADVICE. 

WHEN IT APPEARS THAT AN ACT OF CONGRESS CONFLICTS WITH ONE OF THESE
PROVISIONS, WE HAVE NO CHOICE BUT TO ENFORCE THE PARAMOUNT COMMANDS OF
THE CONSTITUTION.  WE ARE SWORN TO DO NO LESS.  WE CANNOT PUSH BACK THE
LIMITS OF THE CONSTITUTION MERELY TO ACCOMMODATE CHALLENGED
LEGISLATION.  WE MUST APPLY THOSE LIMITS AS THE CONSTITUTION PRESCRIBES
THEM, BEARING IN MIND BOTH THE BROAD SCOPE OF LEGISLATIVE DISCRETION
AND THE ULTIMATE RESPONSIBILITY OF CONSTITUTIONAL ADJUDICATION.  WE DO
WELL TO APPROACH THIS TASK CAUTIOUSLY, AS ALL OUR PREDECESSORS HAVE
COUNSELED.  BUT THE ORDEAL OF JUDGMENT CANNOT BE SHIRKED.  IN SOME 81
INSTANCES SINCE THIS COURT WAS ESTABLISHED IT HAS DETERMINED THAT
CONGRESSIONAL ACTION EXCEEDED THE BOUNDS OF THE CONSTITUTION.  IT IS SO
IN THIS CASE. 

THE JUDGMENT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IS
REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR
APPROPRIATE PROCEEDINGS.  REVERSED AND REMANDED. 

FN1  54 STAT. 1168, 1169, AS AMENDED, 58 STAT. 4, 8 U.S.C. SEC.
1481(A)(8): 

"A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR
NATURALIZATION, SHALL LOSE HIS NATIONALITY BY: 

     *         *         *         *         * 

"(G) DESERTING THE MILITARY OR NAVAL FORCES OF THE UNITED STATES IN
TIME OF WAR, PROVIDED HE IS CONVICTED THEREOF BY COURT MARTIAL AND AS
THE RESULT OF SUCH CONVICTION IS DISMISSED OR DISHONORABLY DISCHARGED
FROM THE SERVICE OF SUCH MILITARY OR NAVAL FORCES:  PROVIDED, THAT
NOTWITHSTANDING LOSS OF NATIONALITY OR CITIZENSHIP OR CIVIL OR
POLITICAL RIGHTS UNDER THE TERMS OF THIS OR PREVIOUS ACTS BY REASON OF
DESERTION COMMITTED IN TIME OF WAR, RESTORATION TO ACTIVE DUTY WITH
SUCH MILITARY OR NAVAL FORCES IN TIME OF WAR OR THE REENLISTMENT OR
INDUCTION OF SUCH A PERSON IN TIME OF WAR WITH PERMISSION OF COMPETENT
MILITARY OR NAVAL AUTHORITY, PRIOR OR SUBSEQUENT TO THE EFFECTIVE DATE
OF THIS ACT, SHALL BE DEEMED TO HAVE THE IMMEDIATE EFFECT OF RESTORING
SUCH NATIONALITY OR CITIZENSHIP AND ALL CIVIL AND POLITICAL RIGHTS
HERETOFORE OR HEREAFTER SO LOST AND OF REMOVING ALL CIVIL AND POLITICAL
DISABILITIES RESULTING THEREFROM  ...  ." 

FN2  ACT OF MARCH 3, 1865, 13 STAT. 487, 490. 

FN3  SEE ROCHE, THE LOSS OF AMERICAN NATIONALITY - THE DEVELOPMENT OF
STATUTORY EXPATRIATION, 99 U. OF PA. L. REV. 25, 60-62. 
ADMINISTRATIVELY THE PHRASE "RIGHTS OF CITIZENSHIP" WAS APPARENTLY
TAKEN TO MEAN "CITIZENSHIP."  SEE FOREIGN RELATIONS 1873, H.R. EXEC.
DOC. NO. 1, 43D CONG., 1ST SESS., PT. 1, VOL. II, P. 1187 (VIEW OF
SECRETARY OF STATE FISH); H.R. DOC. NO. 326, 59TH CONG., 2D SESS. 159
(STATE DEPARTMENT BOARD); HEARINGS BEFORE THE HOUSE COMMITTEE ON
IMMIGRATION AND NATURALIZATION ON H.R. 6127, 76TH CONG., 1ST SESS. 132
133 (TESTIMONY OF RICHARD FLOURNOY, STATE DEPARTMENT REPRESENTATIVE). 
FN4  HEARINGS, AT 133. 

BUT IT IS NOT ENTIRELY CLEAR, HOWEVER, THAT THE CONGRESS FULLY
APPRECIATED THE FACT THAT SECTION 401(G) RENDERED A CONVICTED DESERTER
STATELESS.  IN THIS REGARD, THE FOLLOWING COLLOQUY, WHICH OCCURRED
DURING HEARINGS IN 1943 BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION BETWEEN CONGRESSMEN ALLEN AND KEARNEY, MEMBERS OF THE
COMMITTEE, AND EDWARD J. SHAUGHNESSY, THEN DEPUTY COMMISSIONER OF
IMMIGRATION, IS ILLUMINATING: 

"MR. ALLEN.  IF HE IS CONVICTED (OF DESERTION) BY COURT MARTIAL IN
TIME OF WAR, HE LOSES HIS CITIZENSHIP? 

"MR. SHAUGHNESSY.  THAT IS CORRECT. 

"MR. ALLEN.  IN OTHER WORDS, THAT IS THE SAME THING AS IN OUR CIVIL
COURTS.  WHEN ONE IS CONVICTED OF A FELONY AND IS SENT TO THE
PENITENTIARY, ONE LOSES HIS CITIZENSHIP. 

"MR. SHAUGHNESSY.  HE LOSES HIS RIGHTS OF CITIZENSHIP. 

"MR. KEARNEY.  THERE IS A DIFFERENCE BETWEEN LOSING CITIZENSHIP AND
LOSING CIVIL RIGHTS. 

"MR. SHAUGHNESSY.  HE LOSES HIS CIVIL RIGHTS, NOT HIS CITIZENSHIP. 
HERE HE LOSES HIS CITIZENSHIP. 

"MR. ALLEN.  HE LOSES HIS RIGHTS DERIVED FROM CITIZENSHIP. 

"MR. SHAUGHNESSY.  YES; IT ALMOST AMOUNTS TO THE SAME THING.  IT IS A
TECHNICAL DIFFERENCE. 

"MR. ALLEN.  HE IS STILL AN AMERICAN CITIZEN, BUT HE HAS NO RIGHTS. 

"MR. SHAUGHNESSY.  NO RIGHTS OF CITIZENSHIP." 

HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND NATURALIZATION
ON H.R. 2207, 78TH CONG., 1ST SESS. 2-3. 

SEE ALSO ID., AT 7:  "MR. ELMER.  IS IT NOT TRUE THAT THIS LOSS OF
CITIZENSHIP FOR DESERTION IS A STATE MATTER AND THAT THE GOVERNMENT HAS
NOTHING TO DO WITH IT?" 

FN5  ACT OF JANUARY 20, 1944, 58 STAT. 4. 

FN6  SEE S. REP. NO. 382, 78TH CONG., 1ST SESS. 1, 3; H.R. REP. NO.
302, 78TH CONG., 1ST SESS. 1; 89 CONG. REC. 3241, 10135. 

FN7  ARTICLES OF WAR 58, 41 STAT. 800; ARTICLE 85, UNIFORM CODE OF
MILITARY JUSTICE, 10 U.S.C. (SUPP. V) SEC. 885; WINTHROP, MILITARY LAW
AND PRECEDENTS (2D ED., REPRINT 1920), 637. 

FN8  THE SOLICITOR GENERAL STATED IN HIS ARGUMENT THAT SEC. 401(G)
WOULD APPLY TO DESERTION FROM SUCH CAMPS. 

FN9  UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S. 11; REID V.
COVERT, 354 U.S. 1; HARMON V. BRUCKER, 355 U.S. 579. 

FN10  54 STAT. 1168, AS AMENDED, 58 STAT 746, 8 U.S.C. SEC.
1481(A)(10): 

"A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR
NATURALIZATION, SHALL LOSE HIS NATIONALITY BY: 

     *         *         *         *         * 

"(J) DEPARTING FROM OR REMAINING OUTSIDE OF THE JURISDICTION OF THE
UNITED STATES IN TIME OF WAR OR DURING A PERIOD DECLARED BY THE
PRESIDENT TO BE A PERIOD OF NATIONAL EMERGENCY FOR THE PURPOSE OF
EVADING OR AVOIDING TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF
THE UNITED STATES." 

FN11  CODIFICATION OF THE NATIONALITY LAWS OF THE UNITED STATES, H.R.
COMM. PRINT, PT. 1, 76TH CONG., 1ST SESS. 68. 

FN12  IBID. 

FN13  ACT OF MARCH 3, 1865, 13 STAT. 487. 

FN14  S. REP. NO. 2150, 76TH CONG., 3D SESS. 3. 

FN15  UNITED STATES V. CONSTANTINE, 296 U.S. 287, 294; UNITED STATES
V. LA FRANCA, 282 U.S. 568, 572. 

FN16  U.S. CONST., ART. I, SEC. 9, CL. 3; SEC. 10, CL. 1. 

FN17  UNITED STATES V. LOVETT, 328 U.S. 303; CALDER V. BULL, 3 DALL. 
386. 

FN18  OF COURSE, THE SEVERITY OF THE DISABILITY IMPOSED AS WELL AS
ALL THE CIRCUMSTANCES SURROUNDING THE LEGISLATIVE ENACTMENT IS RELEVANT
TO THIS DECISION.  SEE, GENERALLY, WORMUTH, LEGISLATIVE
DISQUALIFICATIONS AS BILLS OF ATTAINDER, 4 VAND.  L. REV. 603, 608-610;
64 YALE L.J. 712, 722-724. 

FN19  E.G., UNITED STATES V. LOVETT, SUPRA; PIERCE V. CARSKADON, 16
WALL.  234; EX PARTE GARLAND, 4 WALL.  333; CUMMINGS V. MISSOURI, 4
WALL.  277. 

FN20  E.G., MAHLER V. EBY, 264 U.S. 32; HAWKER V. NEW YORK, 170 U.S.
189; DAVIS V. BEASON, 133 U.S. 333; MURPHY V. RAMSEY, 114 U.S. 15. 

FN21  SEE GATHINGS, LOSS OF CITIZENSHIP AND CIVIL RIGHTS FOR
CONVICTION OF CRIME, 43 AM.  POL.  SCI.  REV. 1228. 

FN22  CF. DAVIS V. BEASON, SUPRA; MURPHY V. RAMSEY, SUPRA. 

FN23  SEE WAR DEPARTMENT CIRCULAR NO. 273, 1942, COMPILATION OF WAR
DEPARTMENT GENERAL ORDERS, BULLETINS AND CIRCULARS (GOVERNMENT PRINTING
OFFICE 1943) 343. 

FN24  MAHLER V. EBY, SUPRA; BUGAJEWITZ V. ADAMS, 228 U.S. 585; FONG
YUE TING V. UNITED STATES, 149 U.S. 698. 

FN25  ACT OF MAY 10, 1920, 41 STAT. 593. 

FN26  ACT OF JUNE 15, 1917, 40 STAT. 217. 

FN27  SEE, E.G., BAUMGARTNER V. UNITED STATES, 322 U.S. 665;
SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118. 

FN28  U.S. CONST., AMEND. VIII:  "EXCESSIVE BAIL SHALL NOT BE
REQUIRED, NOR EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL
PUNISHMENTS INFLICTED." 

FN29  SEE LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S. 459; WEEMS
V. UNITED STATES, 217 U.S. 349; HOWARD V. FLEMING, 191 U.S. 126; O'NEIL
V. VERMONT, 144 U.S. 323; IN RE KEMMLER, 136 U.S. 436; WILKERSON V.
UTAH, 99 U.S. 130. 

FN30  1 WM. & MARY, 2D SESS. (1689), C.2. 

FN31  SEE 34 MINN. L. REV. 134; 4 VAND.  L. REV. 680. 

FN32  WHETHER THE WORD "UNUSUAL" HAS ANY QUALITATIVE MEANING
DIFFERENT FROM "CRUEL" IS NOT CLEAR.  ON THE FEW OCCASIONS THIS COURT
HAS HAD TO CONSIDER THE MEANING OF THE PHRASE, PRECISE DISTINCTIONS
BETWEEN CRUELTY AND UNUSUALNESS DO NOT SEEM TO HAVE BEEN DRAWN.  SEE
WEEMS V. UNITED STATES, SUPRA; O'NEIL V. VERMONT, SUPRA; WILKERSON V.
UTAH, SUPRA.  THESE CASES INDICATE THAT THE COURT SIMPLY EXAMINES THE
PARTICULAR PUNISHMENT INVOLVED IN LIGHT OF THE BASIC PROHIBITION
AGAINST INHUMAN TREATMENT, WITHOUT REGARD TO ANY SUBTLETIES OF MEANING
THAT MIGHT BE LATENT IN THE WORD "UNUSUAL."  BUT CF. IN RE KEMMLER,
SUPRA, AT 443; UNITED STATES EX REL. MILWAUKEE SOCIAL DEMOCRATIC
PUBLISHING CO. V. BURLESON, 255 U.S. 407, 430 (BRANDEIS, J.,
DISSENTING).  IF THE WORD "UNUSUAL" IS TO HAVE ANY MEANING APART FROM
THE WORD "CRUEL," HOWEVER, THE MEANING SHOULD BE THE ORDINARY ONE,
SIGNIFYING SOMETHING DIFFERENT FROM THAT WHICH IS GENERALLY DONE. 
DENATIONALIZATION AS A PUNISHMENT CERTAINLY MEETS THIS TEST.  IT WAS
NEVER EXPLICITLY SANCTIONED BY THIS GOVERNMENT UNTIL 1940 AND NEVER
TESTED AGAINST THE CONSTITUTION UNTIL THIS DAY. 

FN33  "PLAINTIFF-APPELLANT HAS CITED TO US AND OBVIOUSLY RELIED ON
THE MASTERFUL ANALYSIS OF EXPATRIATION LEGISLATION SET FORTH IN THE
COMMENT, THE EXPATRIATION ACT OF 1954, 64 YALE L.J. 1164, 1189-1199.  I
AGREE WITH THE AUTHOR'S DOCUMENTED CONCLUSIONS THEREIN THAT PUNITIVE
EXPATRIATION OF PERSONS WITH NO OTHER NATIONALITY CONSTITUTES CRUEL AND
UNUSUAL PUNISHMENT AND IS INVALID AS SUCH.  SINCE I DOUBT IF I CAN ADD
TO THE PERSUASIVE ARGUMENTS THERE MADE, I SHALL MERELY INCORPORATE BY
REFERENCE.  IN MY FAITH, THE AMERICAN CONCEPT OF MAN'S DIGNITY DOES NOT
COMPORT WITH MAKING EVEN THOSE WE WOULD PUNISH COMPLETELY 'STATELESS' -
FAIR GAME FOR THE DESPOILER AT HOME AND THE OPPRESSOR ABROAD, IF INDEED
THERE IS ANY PLACE WHICH WILL TOLERATE THEM AT ALL."  239 F.2D 527,
530. 

FN34  SEE DISCUSSION IN PEREZ V. BROWNELL, ANTE, P. 44, AT 64. 

FN35  SEE STUDY ON STATELESSNESS, U.N. DOC. NO. E/1112; SECKLER
HUDSON, STATELESSNESS: WITH SPECIAL REFERENCE TO THE UNITED STATES;
BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD, SECS. 262, 334. 

FN36  THE SUGGESTION THAT JUDICIAL RELIEF WILL BE AVAILABLE TO
ALLEVIATE THE POTENTIAL RIGORS OF STATELESSNESS ASSUMES TOO MUCH. 
UNDERMINING SUCH ASSUMPTION IS THE STILL FRESH MEMORY OF SHAUGHNESSY V.
UNITED STATES EX REL. MEZEI, 345 U.S. 206, WHERE AN ALIEN, RESIDENT IN
THIS COUNTRY FOR 25 YEARS, RETURNED FROM A VISIT ABROAD TO FIND HIMSELF
BARRED FROM THIS COUNTRY AND FROM ALL OTHERS TO WHICH HE TURNED. 
SUMMARY IMPRISONMENT ON ELLIS ISLAND WAS HIS FATE, WITHOUT ANY JUDICIAL
EXAMINATION OF THE GROUNDS OF HIS CONFINEMENT.  THIS COURT DENIED
RELIEF, AND THE INTOLERABLE SITUATION WAS REMEDIED AFTER FOUR YEARS'
IMPRISONMENT ONLY THROUGH EXECUTIVE ACTION AS A MATTER OF GRACE.  SEE
N.Y. TIMES, AUG. 12, 1954, P. 10, COL. 4. 

FN37  SEE LAWS CONCERNING NATIONALITY, U.N. DOC. NO. ST/LEG/SER.B/4
(1954). 

FN38  ID., AT 379 AND 461.  CF. NATIONALITY LAW OF AUGUST 22, 1907,
ART. 17(2)(HAITI), ID., AT 208. 

MR. JUSTICE BLACK, WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

WHILE I CONCUR IN THE OPINION OF THE CHIEF JUSTICE THERE IS ONE
ADDITIONAL THING THAT NEEDS TO BE SAID. 

EVEN IF CITIZENSHIP COULD BE INVOLUNTARILY DIVESTED, I DO NOT BELIEVE
THAT THE POWER TO DENATIONALIZE MAY BE PLACED IN THE HANDS OF MILITARY
AUTHORITIES.  IF DESERTION OR OTHER MISCONDUCT IS TO BE A BASIS FOR
FORFEITING CITIZENSHIP, GUILT SHOULD BE DETERMINED IN A CIVILIAN COURT
OF JUSTICE WHERE ALL THE PROTECTIONS OF THE BILL OF RIGHTS GUARD THE
FAIRNESS OF THE OUTCOME.  SUCH FORFEITURE SHOULD NOT REST ON THE
FINDINGS OF A MILITARY TRIBUNAL.  MILITARY COURTS MAY TRY SOLDIERS AND
PUNISH THEM FOR MILITARY OFFENSES, BUT THEY SHOULD NOT HAVE THE LAST
WORD ON THE SOLDIER'S RIGHT TO CITIZENSHIP.  THE STATUTE HELD INVALID
HERE NOT ONLY MAKES THE MILITARY'S FINDING OF DESERTION FINAL BUT GIVES
MILITARY AUTHORITIES DISCRETION TO CHOOSE WHICH SOLDIERS CONVICTED OF
DESERTION SHALL BE ALLOWED TO KEEP THEIR CITIZENSHIP AND WHICH ONES
SHALL THEREAFTER BE STATELESS.  NOTHING IN THE CONSTITUTION OR ITS
HISTORY LENDS THE SLIGHTEST SUPPORT FOR SUCH MILITARY CONTROL OVER THE
RIGHT TO BE AN AMERICAN CITIZEN. 

MR. JUSTICE BRENNAN, CONCURRING. 

IN PEREZ V. BROWNELL, ANTE, P. 44, ALSO DECIDED TODAY, I AGREED WITH
THE COURT THAT THERE WAS NO CONSTITUTIONAL INFIRMITY IN SEC. 401(E),
WHICH EXPATRIATES THE CITIZEN WHO VOTES IN A FOREIGN POLITICAL
ELECTION.  I REACH A DIFFERENT CONCLUSION IN THIS CASE, HOWEVER,
BECAUSE I BELIEVE THAT SEC. 401(G), WHICH EXPATRIATES THE WARTIME
DESERTER WHO IS DISHONORABLY DISCHARGED AFTER CONVICTION BY COURT
MARTIAL, LIES BEYOND CONGRESS' POWER TO ENACT.  IT IS, CONCEDEDLY,
PARADOXICAL TO JUSTIFY AS CONSTITUTIONAL THE EXPATRIATION OF THE
CITIZEN WHO HAS COMMITTED NO CRIME BY VOTING IN A MEXICAN POLITICAL
ELECTION, YET FIND UNCONSTITUTIONAL A STATUTE WHICH PROVIDES FOR THE
EXPATRIATION OF A SOLDIER GUILTY OF THE VERY SERIOUS CRIME OF DESERTION
IN TIME OF WAR.  THE LOSS OF CITIZENSHIP MAY HAVE AS OMINOUS
SIGNIFICANCE FOR THE INDIVIDUAL IN THE ONE CASE AS IN THE OTHER.  WHY
THEN DOES NOT THE CONSTITUTION PREVENT THE EXPATRIATION OF THE VOTER AS
WELL AS THE DESERTER? 

HERE, AS IN PEREZ V. BROWNELL, WE MUST INQUIRE WHETHER THERE EXISTS A
RELEVANT CONNECTION BETWEEN THE PARTICULAR LEGISLATIVE ENACTMENT AND
THE POWER GRANTED TO CONGRESS BY THE CONSTITUTION.  THE COURT THERE
HELD THAT SUCH A RELEVANT CONNECTION EXISTS BETWEEN THE POWER TO
MAINTAIN RELATIONS WITH OTHER SOVEREIGN NATIONS AND THE POWER TO
EXPATRIATE THE AMERICAN WHO VOTES IN A FOREIGN ELECTION.  (1) WITHIN
THE POWER GRANTED TO CONGRESS TO REGULATE THE CONDUCT OF FOREIGN
AFFAIRS LIES THE POWER TO DEAL WITH EVILS WHICH MIGHT OBSTRUCT OR
EMBARRAS OUR DIPLOMATIC INTERESTS.  AMONG THESE EVILS, CONGRESS MIGHT
BELIEVE, IS THAT OF VOTING BY AMERICAN CITIZENS IN POLITICAL ELECTIONS
OF OTHER NATIONS.  (FN1) WHATEVER THE REALITIES OF THE SITUATION, MANY
FOREIGN NATIONS MAY WELL VIEW POLITICAL ACTIVITY ON THE PART OF
AMERICANS, EVEN IF LAWFUL, AS EITHER EXPRESSIONS OF OFFICIAL AMERICAN
POSITIONS OR ELSE AS IMPROPER MEDDLING IN AFFAIRS NOT THEIR OWN.  IN
EITHER EVENT THE REACTION IS LIABLE TO BE DETRIMENTAL TO THE INTERESTS
OF THE UNITED STATES.  (2) FINDING THAT THIS WAS AN EVIL WHICH CONGRESS
WAS EMPOWERED TO PREVENT, THE COURT CONCLUDED THAT EXPATRIATION WAS A
MEANS REASONABLY CALCULATED TO ACHIEVE THIS END.  EXPATRIATION, IT
SHOULD BE NOTED, HAS THE ADVANTAGE OF ACTING AUTOMATICALLY, FOR THE
VERY ACT OF CASTING THE BALLOT IS THE ACT OF DENATIONALIZATION, WHICH
COULD HAVE THE EFFECT OF CUTTING OFF AMERICAN RESPONSIBILITY FOR THE
CONSEQUENCES.  IF A FOREIGN GOVERNMENT OBJECTS, OUR ANSWER SHOULD BE
CONCLUSIVE - THE VOTER IS NO LONGER ONE OF OURS.  HARSH AS THE
CONSEQUENCES MAY BE TO THE INDIVIDUAL CONCERNED, CONGRESS HAS ORDAINED
THE LOSS OF CITIZENSHIP SIMULTANEOUSLY WITH THE ACT OF VOTING BECAUSE
CONGRESS MIGHT REASONABLY BELIEVE THAT IN THESE CIRCUMSTANCES THERE IS
NO ACCEPTABLE ALTERNATIVE TO EXPATRIATION AS A MEANS OF AVOIDING
POSSIBLE EMBARRASSMENTS TO OUR RELATIONS WITH FOREIGN NATIONS.  (FN2)
AND WHERE CONGRESS HAS DETERMINED THAT CONSIDERATIONS OF THE HIGHEST
NATIONAL IMPORTANCE INDICATE A COURSE OF ACTION FOR WHICH AN ADEQUATE
SUBSTITUTE MIGHT RATIONALLY APPEAR LACKING, I CANNOT SAY THAT THIS
MEANS LIES BEYOND CONGRESS' POWER TO CHOOSE.  CF. KOREMATSU V. UNITED
STATES, 323 U.S. 214. 

IN CONTRAST TO SEC. 401(E), THE SECTION WITH WHICH WE ARE NOW
CONCERNED, SEC. 401(G), DRAWS UPON THE POWER OF CONGRESS TO RAISE AND
MAINTAIN MILITARY FORCES TO WAGE WAR.  NO PRETENSE CAN HERE BE MADE
THAT EXPATRIATION OF THE DESERTER IN ANY WAY RELATES TO THE CONDUCT OF
FOREIGN AFFAIRS, FOR THIS STATUTE IS NOT LIMITED IN ITS EFFECTS TO
THOSE WHO DESERT IN A FOREIGN COUNTRY OR WHO FLEE TO ANOTHER LAND.  NOR
IS THIS STATUTE LIMITED IN ITS APPLICATION TO THE DESERTER WHOSE
CONDUCT IMPORTS "ELEMENTS OF AN ALLEGIANCE TO ANOTHER COUNTRY IN SOME
MEASURE, AT LEAST, INCONSISTENT WITH AMERICAN CITIZENSHIP."  PEREZ V.
BROWNELL, SUPRA, AT 61.  THE HISTORY OF THIS PROVISION, INDEED, SHOWS
THAT THE ESSENTIAL CONGRESSIONAL PURPOSE WAS A RESPONSE TO THE NEEDS OF
THE MILITARY IN MAINTAINING DISCIPLINE IN THE ARMED FORCES, ESPECIALLY
DURING WARTIME.  THERE CAN BE NO SERIOUS QUESTION THAT INCLUDED IN
CONGRESS' POWER TO MAINTAIN ARMIES IS THE POWER TO DEAL WITH THE
PROBLEM OF DESERTION, AN ACT PLAINLY DESTRUCTIVE, NOT ONLY OF THE
MILITARY ESTABLISHMENT AS SUCH, BUT, MORE IMPORTANTLY, OF THE NATION'S
ABILITY TO WAGE WAR EFFECTIVELY.  BUT GRANTING THAT CONGRESS IS
AUTHORIZED TO DEAL WITH THE EVIL OF DESERTION, WE MUST YET INQUIRE
WHETHER EXPATRIATION IS A MEANS REASONABLY CALCULATED TO ACHIEVE THIS
LEGITIMATE END AND THEREBY DESIGNED TO FURTHER THE ULTIMATE
CONGRESSIONAL OBJECTIVE - THE SUCCESSFUL WAGING OF WAR.    EXPATRIATION
OF THE DESERTER ORIGINATED IN THE ACT OF 1865, 13 STAT. 490, WHEN
WHOLESALE DESERTION AND DRAFT-LAW VIOLATIONS SERIOUSLY THREATENED THE
EFFECTIVENESS OF THE UNION ARMIES.  (FN3)  THE 1865 ACT EXPRESSLY
PROVIDED THAT EXPATRIATION WAS TO BE "IN ADDITION TO THE OTHER LAWFUL
PENALTIES OF THE CRIME OF DESERTION  ...  ."  THIS WAS EMPHASIZED IN
THE LEADING CASE UNDER THE 1865 ACT, HUBER V. REILY, 53 PA. 112,
DECIDED BY THE PENNSYLVANIA SUPREME COURT LITTLE MORE THAN A YEAR AFTER
PASSAGE OF THE ACT.  THE COURT SAID THAT "ITS AVOWED PURPOSE IS TO ADD
TO THE PENALTIES WHICH THE LAW HAD PREVIOUSLY AFFIXED TO THE OFFENCE OF
DESERTION FROM THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, AND
IT DENOMINATES THE ADDITIONAL SANCTIONS PROVIDED AS PENALTIES."  ID.,
AT 114-115. 

BUT, ALTHOUGH IT IMPOSED EXPATRIATION ENTIRELY AS AN ADDED PUNISHMENT
FOR CRIME, THE 1865 ACT DID NOT EXPRESSLY MAKE CONVICTION BY COURT
MARTIAL A PREREQUISITE TO THAT PUNISHMENT, AS WAS THE CASE WITH THE
CONVENTIONAL PENALTIES.  THE PENNSYLVANIA SUPREME COURT FELT THAT HUBER
WAS RIGHT IN CONTENDING THAT THIS WAS A SERIOUS CONSTITUTIONAL
OBJECTION:  "THE ACT PROPOSES TO INFLICT PAINS AND PENALTIES UPON
OFFENDERS BEFORE AND WITHOUT A TRIAL AND CONVICTION BY DUE PROCESS OF
LAW, AND  ... IT IS THEREFORE PROHIBITED BY THE BILL OF RIGHTS."  53
PA., AT 115.  THE COURT, HOWEVER, CONSTRUED THE STATUTE SO AS TO AVOID
THESE CONSTITUTIONAL DIFFICULTIES, HOLDING THAT LOSS OF CITIZENSHIP,
LIKE OTHER PENALTIES FOR DESERTION, FOLLOWED ONLY UPON CONVICTION BY
COURT-MARTIAL. 

THIS VIEW OF THE 1865 ACT WAS APPROVED BY THIS COURT IN KURTZ V.
MOFFITT, 115 U.S. 487, 501, AND, AS NOTED THERE, THE SAME VIEW "HAS
BEEN UNIFORMLY HELD BY THE CIVIL COURTS AS WELL AS BY THE MILITARY
AUTHORITIES."  SEE MCCAFFERTY V. GUYER, 59 PA. 109; STATE V. SYMONDS,
57 ME. 148; GOTCHEUS V. MATHESON, 58 BARB.  (N.Y.)  152; 2 WINTHROP,
MILITARY LAW AND PRECEDENTS (2D ED. 1896), 1001.  (FN4)  OF PARTICULAR
SIGNIFICANCE, MOREOVER, IS THE FACT THAT THE CONGRESS HAS CONFIRMED THE
CORRECTNESS OF THE VIEW THAT IT PURPOSED EXPATRIATION OF THE DESERTER
SOLELY AS ADDITIONAL PUNISHMENT.  THE PRESENT SEC. 401(G) MERELY
INCORPORATES THE 1865 PROVISION IN THE CODIFICATION WHICH BECAME THE
1940 NATIONALITY ACT.  (FN5)  BUT NOW THERE IS EXPRESSLY STATED WHAT
WAS OMITTED FROM THE 1865 ACT, NAMELY, THAT THE DESERTER SHALL BE
EXPATRIATED "IF AND WHEN HE IS CONVICTED THEREOF BY COURT MARTIAL  ...
."  54 STAT. 1169, AS AMENDED, 8 U.S.C. SEC. 1481(A)(8).  (FN6) 

IT IS DIFFICULT, INDEED, TO SEE HOW EXPATRIATION OF THE DESERTER
HELPS WAGE WAR EXCEPT AS IT PERFORMS THAT FUNCTION WHEN IMPOSED AS
PUNISHMENT.  IT IS OBVIOUS THAT EXPATRIATION CANNOT IN ANY WISE AVOID
THE HARM APPREHENDED BY CONGRESS.  AFTER THE ACT OF DESERTION, ONLY
PUNISHMENT CAN FOLLOW, FOR THE HARM HAS BEEN DONE.  THE DESERTER,
MOREOVER, DOES NOT CEASE TO BE AN AMERICAN CITIZEN AT THE MOMENT HE
DESERTS.  INDEED, EVEN CONVICTION DOES NOT NECESSARILY EFFECT HIS
EXPATRIATION, FOR DISHONORABLE DISCHARGE IS THE CONDITION PRECEDENT TO
LOSS OF CITIZENSHIP.  THEREFORE, IF EXPATRIATION IS MADE A CONSEQUENCE
OF DESERTION, IT MUST STAND TOGETHER WITH DEATH AND IMPRISONMENT - AS A
FORM OF PUNISHMENT. 

TO CHARACTERIZE EXPATRIATION AS PUNISHMENT IS, OF COURSE, BUT THE
BEGINNING OF CRITICAL INQUIRY.  AS PUNISHMENT IT MAY BE EXTREMELY
HARSH, BUT THE CRIME OF DESERTION MAY BE GRAVE INDEED.  HOWEVER, THE
HARSHNESS OF THE PUNISHMENT MAY BE AN IMPORTANT CONSIDERATION WHERE THE
ASSERTED POWER TO EXPATRIATE HAS ONLY A SLIGHT OR TENUOUS RELATION TO
THE GRANTED POWER.  IN ITS MATERIAL FORMS NO ONE CAN TODAY JUDGE THE
PRECISE CONSEQUENCES OF EXPATRIATION, FOR HAPPILY AMERICAN LAW HAS HAD
LITTLE EXPERIENCE WITH THIS STATUS, AND IT CANNOT BE SAID
HYPOTHETICALLY TO WHAT EXTENT THE SEVERITY OF THE STATUS MAY BE
INCREASED CONSISTENTLY WITH THE DEMANDS OF DUE PROCESS.  BUT IT CAN BE
SUPPOSED THAT THE CONSEQUENCES OF GREATEST WEIGHT, IN TERMS OF ULTIMATE
IMPACT ON THE PETITIONER, ARE UNKNOWN AND UNKNOWABLE.  (FN7)  INDEED,
IN TRUTH, HE MAY LIVE OUT HIS LIFE WITH BUT MINOR INCONVENIENCE.  HE
MAY PERHAPS LIVE, WORK, MARRY, RAISE A FAMILY, AND GENERALLY EXPERIENCE
A SATISFACTORILY HAPPY LIFE.  NEVERTHELESS IT CANNOT BE DENIED THAT THE
IMPACT OF EXPATRIATION - ESPECIALLY WHERE STATELESSNESS IS THE UPSHOT -
MAY BE SEVERE.  EXPATRIATION, IN THIS RESPECT, CONSTITUTES AN
ESPECIALLY DEMORALIZING SANCTION.  THE UNCERTAINTY, AND THE CONSEQUENT
PSYCHOLOGICAL HURT, WHICH MUST ACCOMPANY ONE WHO BECOMES AN OUTCAST IN
HIS OWN LAND MUST BE RECKONED A SUBSTANTIAL FACTOR IN THE ULTIMATE
JUDGMENT. 

IN VIEW OF THE MANIFEST SEVERITY OF THIS SANCTION, I FEEL THAT WE
SHOULD LOOK CLOSELY AT ITS PROBABLE EFFECT TO DETERMINE WHETHER
CONGRESS' IMPOSITION OF EXPATRIATION AS A PENAL DEVICE IS JUSTIFIED IN
REASON.  CLEARLY THE SEVERITY OF THE PENALTY, IN THE CASE OF A SERIOUS
OFFENSE, IS NOT ENOUGH TO INVALIDATE IT WHERE THE NATURE OF THE PENALTY
IS RATIONALLY DIRECTED TO ACHIEVE THE LEGITIMATE ENDS OF PUNISHMENT. 

THE NOVELTY OF EXPATRIATION AS PUNISHMENT DOES NOT ALONE DEMONSTRATE
ITS INEFFICIENCY.  IN RECENT YEARS WE HAVE SEEN SUCH DEVICES AS
INDETERMINATE SENTENCES AND PAROLE ADDED TO THE TRADITIONAL TERM OF
IMPRISONMENT.  SUCH PENAL METHODS SEEK TO ACHIEVE THE END, AT ONCE MORE
HUMANE AND EFFECTIVE, THAT SOCIETY SHOULD MAKE EVERY EFFORT TO
REHABILITATE THE OFFENDER AND RESTORE HIM AS A USEFUL MEMBER OF THAT
SOCIETY AS SOCIETY'S OWN BEST PROTECTION.  OF COURSE, REHABILITATION IS
BUT ONE OF THE SEVERAL PURPOSES OF THE PENAL LAW.  AMONG OTHER PURPOSES
ARE DETERRENTS OF THE WRONGFUL ACT BY THE THREAT OF PUNISHMENT AND
INSULATION OF SOCIETY FROM DANGEROUS INDIVIDUALS BY IMPRISONMENT OR
EXECUTION.  WHAT THEN IS THE RELATIONSHIP OF THE PUNISHMENT OF
EXPATRIATION TO THESE ENDS OF THE PENAL LAW?  IT IS PERFECTLY OBVIOUS
THAT IT CONSTITUTES THE VERY ANTITHESIS OF REHABILITATION, FOR INSTEAD
OF GUIDING THE OFFENDER BACK INTO THE USEFUL PATHS OF SOCIETY IT
EXCOMMUNICATES HIM AND MAKES HIM, LITERALLY, AN OUTCAST.  I CAN THINK
OF NO MORE CERTAIN WAY IN WHICH TO MAKE A MAN IN WHOM, PERHAPS, REST
THE SEEDS OF SERIOUS ANTISOCIAL BEHAVIOR MORE LIKELY TO PURSUE FURTHER
A CAREER OF UNLAWFUL ACTIVITY THAN TO PLACE ON HIM THE STIGMA OF THE
DERELICT, UNCERTAIN OF MANY OF HIS BASIC RIGHTS.  SIMILARLY, IT MUST BE
QUESTIONED WHETHER EXPATRIATION CAN REALLY ACHIEVE THE OTHER EFFECTS
SOUGHT BY SOCIETY IN PUNITIVE DEVICES.  CERTAINLY IT WILL NOT INSULATE
SOCIETY FROM THE DESERTER, FOR UNLESS COUPLED WITH BANISHMENT THE
SANCTION LEAVES THE OFFENDER AT LARGE.  AND AS A DETERRENT DEVICE THIS
SANCTION WOULD APPEAR OF LITTLE EFFECT, FOR THE OFFENDER, IF NOT
DETERRED BY THOUGHT OF THE SPECIFIC PENALTIES OF LONG IMPRISONMENT OR
EVEN DEATH, IS NOT VERY LIKELY TO BE SWAYED FROM HIS COURSE BY THE
PROSPECT OF EXPATRIATION.  (FN8)  HOWEVER INSIDIOUS AND DEMORALIZING
MAY BE THE ACTUAL EXPERIENCE OF STATELESSNESS, ITS CONTEMPLATION IN
ADVANCE SEEMS UNLIKELY TO INVOKE SERIOUS MISGIVING, FOR NONE OF US YET
KNOWS ITS RAMIFICATIONS. 

IN THE LIGHT OF THESE CONSIDERATIONS, IT IS UNDERSTANDABLE THAT THE
GOVERNMENT HAS NOT PRESSED ITS CASE ON THE BASIS OF EXPATRIATION OF THE
DESERTER AS PUNISHMENT FOR HIS CRIME.  RATHER, THE GOVERNMENT ARGUES
THAT THE NECESSARY NEXUS TO THE GRANTED POWER IS TO BE FOUND IN THE
IDEA THAT LEGISLATIVE WITHDRAWAL OF CITIZENSHIP IS JUSTIFIED IN THIS
CASE BECAUSE TROP'S DESERTION CONSTITUTED A REFUSAL TO PERFORM ONE OF
THE HIGHEST DUTIES OF AMERICAN CITIZENSHIP - THE BEARING OF ARMS IN A
TIME OF DESPERATE NATIONAL PERIL.  IT CANNOT BE DENIED THAT THERE IS
IMPLICIT IN THIS A CERTAIN ROUGH JUSTICE.  HE WHO REFUSES TO ACT AS AN
AMERICAN SHOULD NO LONGER BE AN AMERICAN - WHAT COULD BE FAIRER?  BUT I
CANNOT SEE THAT THIS IS ANYTHING OTHER THAN FORCING RETRIBUTION FROM
THE OFFENDER - NAKED VENGEANCE.  BUT MANY ACTS OF DESERTION CERTAINLY
FALL FAR SHORT OF A "REFUSAL TO PERFORM THIS ULTIMATE DUTY OF AMERICAN
CITIZENSHIP."  DESERTION IS DEFINED AS "ABSENCE WITHOUT LEAVE
ACCOMPANIED BY THE INTENTION NOT TO RETURN."  ARMY MANUAL FOR COURTS
MARTIAL (1928) 142.  THE OFFENSE MAY BE QUITE TECHNICAL, AS WHERE AN
OFFICER, "HAVING TENDERED HIS RESIGNATION AND PRIOR TO DUE NOTICE OF
THE ACCEPTANCE OF THE SAME, QUITS HIS POST OR PROPER DUTIES WITHOUT
LEAVE AND WITH INTENT TO ABSENT HIMSELF PERMANENTLY THEREFROM  ...  ." 
ARTICLE OF WAR 28 (1920), 41 STAT. 792.  DESERTION IS ALSO COMMITTED
WHERE A SOLDIER, WITHOUT HAVING RECEIVED A REGULAR DISCHARGE, RE
ENLISTS IN THE SAME OR ANOTHER SERVICE.  THE YOUNGSTER, FOR EXAMPLE,
RESTIVE AT HIS ASSIGNMENT TO A SUPPLY DEPOT, WHO RUNS OFF TO THE FRONT
TO BE IN THE FIGHT, SUBJECTS HIMSELF TO THE POSSIBILITY OF THIS
SANCTION.  YET THE STATUTE IMPOSES THE PENALTY COEXTENSIVE WITH THE
SUBSTANTIVE CRIME.  SINCE MANY ACTS OF DESERTION THUS CERTAINLY FALL
FAR SHORT OF A "REFUSAL TO PERFORM THIS ULTIMATE DUTY OF AMERICAN
CITIZENSHIP," IT STRETCHES THE IMAGINATION EXCESSIVELY TO ESTABLISH A
RATIONAL RELATION OF MERE RETRIBUTION TO THE ENDS PURPORTED TO BE
SERVED BY EXPATRIATION OF THE DESERTER.  I SIMPLY CANNOT ACCEPT A
JUDGMENT THAT CONGRESS IS FREE TO ADOPT ANY MEASURE AT ALL TO
DEMONSTRATE ITS DISPLEASURE AND EXACT ITS PENALTY FROM THE OFFENDER
AGAINST ITS LAWS. 

IT SEEMS TO ME THAT NOTHING IS SOLVED BY THE UNCRITICAL REFERENCE TO
SERVICE IN THE ARMED FORCES AS THE "ULTIMATE DUTY OF AMERICAN
CITIZENSHIP."  INDEED, IT IS VERY DIFFICULT TO IMAGINE, ON THIS THEORY
OF POWER, WHY CONGRESS CANNOT IMPOSE EXPATRIATION AS PUNISHMENT FOR ANY
CRIME AT ALL - FOR TAX EVASION, FOR BANK ROBBERY, FOR NARCOTICS
OFFENSES.  AS CITIZENS WE ARE ALSO CALLED UPON TO PAY OUR TAXES AND TO
OBEY THE LAWS, AND THESE DUTIES APPEAR TO ME TO BE FULLY AS RELATED TO
THE NATURE OF OUR CITIZENSHIP AS OUR MILITARY OBLIGATIONS.  BUT
CONGRESS' ASSERTED POWER TO EXPATRIATE THE DESERTER BEARS TO THE WAR
POWERS PRECISELY THE SAME RELATION AS ITS POWER TO EXPATRIATE THE TAX
EVADER WOULD BEAR TO THE TAXING POWER. 

I THEREFORE MUST CONCLUDE THAT SEC. 401(G) IS BEYOND THE POWER OF
CONGRESS TO ENACT.  ADMITTEDLY CONGRESS' BELIEF THAT EXPATRIATION OF
THE DESERTER MIGHT FURTHER THE WAR EFFORT MAY FIND SOME - THOUGH
NECESSARILY SLENDER - SUPPORT IN REASON.  BUT HERE, ANY SUBSTANTIAL
ACHIEVEMENT, BY THIS DEVICE, OF CONGRESS' LEGITIMATE PURPOSES UNDER THE
WAR POWER SEEMS FAIRLY REMOTE.  IT IS AT THE SAME TIME ABUNDANTLY CLEAR
THAT THESE ENDS COULD MORE FULLY BE ACHIEVED BY ALTERNATIVE METHODS NOT
OPEN TO THESE OBJECTIONS.  IN THE LIGHT OF THESE FACTORS, AND CONCEDING
ALL THAT I POSSIBLY CAN IN FAVOR OF THE ENACTMENT, I CAN ONLY CONCLUDE
THAT THE REQUISITE RATIONAL RELATION BETWEEN THIS STATUTE AND THE WAR
POWER DOES NOT APPEAR - FOR IN THIS RELATION THE STATUTE IS NOT "REALLY
CALCULATED TO EFFECT ANY OF THE OBJECTS ENTRUSTED TO THE GOVERNMENT ...
," M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 423 - AND THEREFORE THAT SEC.
401(G) FALLS BEYOND THE DOMAIN OF CONGRESS. 

FN1  SOME INDICATION OF THE PROBLEM IS TO BE SEEN IN THE JOINT
RESOLUTIONS INTRODUCED IN BOTH HOUSES OF CONGRESS TO EXEMPT THE TWO OR
THREE THOUSAND AMERICANS WHO ALLEGEDLY LOST THEIR CITIZENSHIP BY VOTING
IN CERTAIN ITALIAN ELECTIONS.  SEE S.J. RES. 47 AND H.J.  RES. 30, 239,
375, 81ST CONG., 1ST SESS.  ALL PROPOSED "TO SUSPEND THE OPERATION OF
ALSO H.R. 6400, 81ST CONG., 1ST SESS. 

FN2  PEREZ V. BROWNELL DID NOT RAISE QUESTIONS UNDER THE FIRST
AMENDMENT, WHICH OF COURSE WOULD HAVE THE EFFECT IN APPROPRIATE CASES
OF LIMITING CONGRESSIONAL POWER OTHERWISE POSSESSED. 

FN3  A GOOD DESCRIPTION OF THE EXTENT OF THE PROBLEM RAISED BY
DESERTIONS FROM THE UNION ARMIES, AND OF THE EXTREME MEASURES TAKEN TO
COMBAT THE PROBLEM, WILL BE FOUND IN PULLEN, THE TWENTIETH MAINE:  A
VOLUNTEER REGIMENT OF THE CIVIL WAR (1957). 

FN4  THE OPINION IN HUBER V. REILY, WHICH WAS WRITTEN BY MR. JUSTICE
STRONG, LATER A MEMBER OF THIS COURT, SUGGESTED, IF IT DID NOT HOLD,
THAT THE STATUTES AND CONSIDERATIONS OF DUE PROCESS REQUIRED THAT
EXPATRIATION, TO BE ACCOMPLISHED, SHOULD BE SPECIFICALLY INCLUDED BY
THE COURT-MARTIAL AS PART OF THE SENTENCE.  SEE 53 PA., AT 119-120. 
THE COURT-MARTIAL, UNDER MILITARY LAW, ADJUDGES BOTH GUILT AND THE
EXTENT OF INITIAL SENTENCE.  JACKSON V. TAYLOR, 353 U.S. 569, 574-575;
AND SEE ARTICLE OF WAR 58 (1920), 41 STAT. 800.  HOWEVER, IT HAS NOT
BEEN THE PRACTICE SPECIFICALLY TO INCLUDE EXPATRIATION AS PART OF THE
SENTENCE.  2 WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED. 1896),
1001. 

FN5  THE PROVISION WAS LIMITED IN 1912 TO DESERTION IN TIME OF WAR,
37 STAT. 356, BUT OTHERWISE WAS NOT REVISED UNTIL CARRIED INTO THE
NATIONALITY ACT OF 1940, 54 STAT. 1169.  IT WAS, HOWEVER, FIRST
CODIFIED AS PART OF THE LAWS CONCERNING CITIZENSHIP AS SEC. 1998 OF THE
1874 REVISED STATUTES. 

FN6  THE REASON FOR THE ADDITION TO THE PROVISO IS STATED IN A
REPORT, CODIFICATION OF THE NATIONALITY LAWS OF THE UNITED STATES, H.R.
COMM. PRINT, PT. 1, 76TH CONG., 1ST SESS., PREPARED AT THE REQUEST OF
THE PRESIDENT BY THE SECRETARY OF STATE, THE ATTORNEY GENERAL, AND THE
SECRETARY OF LABOR, PROPOSING A REVISION AND CODIFICATION OF THE
NATIONALITY LAWS:  "THE PROVISIONS OF SECTIONS 1996 AND 1998 OF THE
REVISED STATUTES ARE DISTINCTLY PENAL IN CHARACTER.  THEY MUST,
THEREFORE, BE CONSTRUED STRICTLY, AND THE PENALTIES TAKE EFFECT ONLY
UPON CONVICTION BY A COURT MARTIAL (HUBER V. REILLY, 1866, 53 PENN. 
ST. 112; KURTZ V. MOFFITT, 1885, 115 U.S. 487)."  ID., AT 68.    THE
REFERENCE LATER IN THE REPORT THAT SEC. 401 "TECHNICALLY IS NOT A PENAL
LAW" IS TO THE SECTION AS A WHOLE AND NOT TO SUBDIVISION (G). 

FN7  ADJUDICATION OF HYPOTHETICAL AND CONTINGENT CONSEQUENCES IS
BEYOND THE FUNCTION OF THIS COURT AND THE INCIDENTS OF EXPATRIATION ARE
ALTOGETHER INDEFINITE.  NONETHELESS, THIS VERY UNCERTAINTY OF THE
CONSEQUENCES MAKES EXPATRIATION AS PUNISHMENT SEVERE. 

IT IS ALSO UNNECESSARY TO CONSIDER WHETHER THE CONSEQUENCES WOULD BE
DIFFERENT FOR THE CITIZEN EXPATRIATED UNDER ANOTHER SECTION THAN SEC.
401(G). 

FN8  A DETERRENT EFFECT IS CERTAINLY CONJECTURAL WHEN WE ARE TOLD
THAT DURING WORLD WAR II AS MANY AS 21,000 SOLDIERS WERE CONVICTED OF
DESERTION AND SENTENCED TO BE DISHONORABLY DISCHARGED.  FROM THE FACT
THAT THE REVIEWING AUTHORITIES ULTIMATELY REMITTED THE DISHONORABLE
DISCHARGES IN ABOUT TWO-THIRDS OF THESE CASES IT IS POSSIBLE TO INFER
THAT THE MILITARY ITSELF HAD NO FIRM BELIEF IN THE DETERRENT EFFECTS OF
EXPATRIATION. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON, MR. JUSTICE CLARK
AND MR. JUSTICE HARLAN JOIN, DISSENTING. 

PETITIONER WAS BORN IN OHIO IN 1924.  WHILE IN THE ARMY SERVING IN
FRENCH MOROCCO IN 1944, HE WAS TRIED BY A GENERAL COURT-MARTIAL AND
FOUND GUILTY OF HAVING TWICE ESCAPED FROM CONFINEMENT, OF HAVING BEEN
ABSENT WITHOUT LEAVE, AND OF HAVING DESERTED AND REMAINED IN DESERTION
FOR ONE DAY.  HE WAS SENTENCED TO A DISHONORABLE DISCHARGE, FORFEITURE
OF ALL PAY AND ALLOWANCES AND CONFINEMENT AT HARD LABOR FOR THREE
YEARS.  HE SUBSEQUENTLY RETURNED TO THE UNITED STATES.  IN 1952 HE
APPLIED FOR A PASSPORT; THIS APPLICATION WAS DENIED BY THE STATE
DEPARTMENT ON THE GROUND THAT PETITIONER HAD LOST HIS CITIZENSHIP AS A
RESULT OF HIS CONVICTION OF AND DISHONORABLE DISCHARGE FOR DESERTION
FROM THE ARMY IN TIME OF WAR.  THE DEPARTMENT RELIED UPON SEC. 401 OF
THE NATIONALITY ACT OF 1940, 54 STAT. 1137, 1168, AS AMENDED BY THE ACT
OF JANUARY 20, 1944, 58 STAT. 4, WHICH PROVIDED, IN PERTINENT PART,
(FN1) THAT: 

"A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR
NATURALIZATION, SHALL LOSE HIS NATIONALITY BY: 

*         *         *         *         * 

"(G)  DESERTING THE MILITARY OR NAVAL FORCES OF THE UNITED STATES IN
TIME OF WAR, PROVIDED HE IS CONVICTED THEREOF BY COURT MARTIAL AND AS
THE RESULT OF SUCH CONVICTION IS DISMISSED OR DISHONORABLY DISCHARGED
FROM THE SERVICE OF SUCH MILITARY OR NAVAL FORCES:  PROVIDED, THAT
NOTWITHSTANDING LOSS OF NATIONALITY OR CITIZENSHIP OR CIVIL OR
POLITICAL RIGHTS UNDER THE TERMS OF THIS OR PREVIOUS ACTS BY REASON OF
DESERTION COMMITTED IN TIME OF WAR, RESTORATION OF ACTIVE DUTY WITH
SUCH MILITARY OR NAVAL FORCES IN TIME OF WAR OR THE REENLISTMENT OR
INDUCTION OF SUCH A PERSON IN TIME OF WAR WITH PERMISSION OF COMPETENT
MILITARY OR NAVAL AUTHORITY, PRIOR OR SUBSEQUENT TO THE EFFECTIVE DATE
OF THIS ACT, SHALL BE DEEMED TO HAVE THE IMMEDIATE EFFECT OF RESTORING
SUCH NATIONALITY OR CITIZENSHIP AND ALL CIVIL AND POLITICAL RIGHTS
HERETOFORE OR HEREAFTER SO LOST AND OF REMOVING ALL CIVIL AND POLITICAL
DISABILITIES RESULTING THEREFROM  ...  ." 

IN 1955 PETITIONER BROUGHT SUIT IN A UNITED STATES DISTRICT COURT FOR
A JUDGMENT DECLARING HIM TO BE A NATIONAL OF THE UNITED STATES.  THE
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT WAS GRANTED AND PETITIONER'S
DENIED.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED, ONE
JUDGE DISSENTING.  239 F.2D 527. 

AT THE THRESHOLD THE PETITIONER SUGGESTS CONSTRUCTIONS OF THE STATUTE
THAT WOULD AVOID CONSIDERATION OF CONSTITUTIONAL ISSUES.  IF SUCH A
CONSTRUCTION IS PRECLUDED, PETITIONER CONTENDS THAT CONGRESS IS WITHOUT
POWER TO ATTACH LOSS OF CITIZENSHIP AS A CONSEQUENCE OF CONVICTION FOR
DESERTION.  HE ALSO ARGUES THAT SUCH AN EXERCISE OF POWER WOULD VIOLATE
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE CONSTITUTION AND
THE PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENTS IN THE EIGHTH
AMENDMENT. 

THE SUBSECTION OF SEC. 401 OF THE NATIONALITY ACT OF 1940, AS
AMENDED, MAKING LOSS OF NATIONALITY RESULT FROM A CONVICTION FOR
DESERTION IN WARTIME IS A DIRECT DESCENDANT OF A PROVISION ENACTED
DURING THE CIVIL WAR.  ONE SECTION OF "AN ACT TO AMEND THE SEVERAL ACTS
HERETOFORE PASSED TO PROVIDE FOR THE ENROLLING AND CALLING OUT (OF) THE
NATIONAL FORCES, AND FOR OTHER PURPOSES," 13 STAT. 487, 490, APPROVED
ON MARCH 3, 1865, PROVIDED THAT "IN ADDITION TO THE OTHER LAWFUL
PENALTIES OF THE CRIME OF DESERTION FROM THE MILITARY OR NAVAL
SERVICE," ALL PERSONS WHO DESERT SUCH SERVICE "SHALL BE DEEMED AND
TAKEN TO HAVE VOLUNTARILY RELINQUISHED AND FORFEITED THEIR RIGHTS OF
CITIZENSHIP AND THEIR RIGHTS TO BECOME CITIZENS  ...  ."  EXCEPT AS
LIMITED IN 1912 TO DESERTION IN TIME OF WAR, 37 STAT. 356, THE
PROVISION REMAINED IN EFFECT UNTIL ABSORBED INTO THE NATIONALITY ACT OF
1940.  54 STAT. 1137, 1169, 1172.  SHORTLY AFTER ITS ENACTMENT THE 1865
PROVISION RECEIVED AN IMPORTANT INTERPRETATION IN HUBER V. REILY, 53
PA. 112 (1866).  THERE, THE SUPREME COURT OF PENNSYLVANIA, IN AN
OPINION BY MR. JUSTICE STRONG, LATER OF THIS COURT, HELD THAT THE
DISABILITIES OF THE 1865 ACT COULD ATTACH ONLY AFTER THE INDIVIDUAL HAD
BEEN CONVICTED OF DESERTION BY A COURT-MARTIAL.  THE REQUIREMENT WAS
DRAWN FROM THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE
CONSTITUTION.  53 PA., AT 116-118.  THIS INTERPRETATION WAS FOLLOWED BY
OTHER COURTS, E.G., STATE V. SYMONDS, 57 ME. 148, AND WAS REFERRED TO
APPROVINGLY BY THIS COURT IN 1885 IN KURTZ V. MOFFITT, 115 U.S. 487,
WITHOUT DISCUSSION OF ITS RATIONALE. 

WHEN THE NATIONALITY LAWS OF THE UNITED STATES WERE REVISED AND
CODIFIED AS THE NATIONALITY ACT OF 1940, 54 STAT. 1137, THERE WAS ADDED
TO THE LIST OF ACTS THAT RESULT IN LOSS OF AMERICAN NATIONALITY,
"DESERTING THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES IN TIME
OF WAR, PROVIDED HE (THE DESERTER) IS CONVICTED THEREOF BY A COURT
MARTIAL."  SEC.  401(G), 54 STAT. 1169.  DURING THE CONSIDERATION OF
THE ACT, THERE WAS SUBSTANTIALLY NO DEBATE ON THIS PROVISION.  IT SEEMS
CLEAR, HOWEVER, FROM THE REPORT OF THE CABINET COMMITTEE THAT HAD
RECOMMENDED ITS ADOPTION THAT NOTHING MORE WAS INTENDED IN ITS
ENACTMENT THAN TO INCORPORATE THE 1865 PROVISION INTO THE 1940
CODIFICATION, AT THE SAME TIME MAKING IT CLEAR THAT NATIONALITY, AND
NOT THE AMBIGUOUS "RIGHTS OF CITIZENSHIP," (FN2) WAS TO BE LOST AND
THAT THE PROVISION APPLIED TO ALL NATIONALS.  CODIFICATION OF THE
NATIONALITY LAWS OF THE UNITED STATES, H.R. COMM. PRINT, PT. 1, 76TH
CONG., 1ST SESS. 68. 

IN 1944, AT THE REQUEST OF THE WAR DEPARTMENT, CONGRESS AMENDED SEC.
401(G) OF THE 1940 ACT INTO THE FORM IN WHICH IT WAS WHEN APPLIED TO
THE PETITIONER; THIS AMENDMENT REQUIRED THAT A DISMISSAL OR
DISHONORABLE DISCHARGE RESULT FROM THE CONVICTION FOR DESERTION BEFORE
EXPATRIATION SHOULD FOLLOW AND PROVIDED THAT RESTORATION OF A DESERTER
TO ACTIVE DUTY DURING WARTIME SHOULD HAVE THE EFFECT OF RESTORING HIS
CITIZENSHIP.  58 STAT. 4.  IT IS ABUNDANTLY CLEAR FROM THE DEBATE AND
REPORTS THAT THE SOLE PURPOSE OF THIS CHANGE WAS TO PERMIT PERSONS
CONVICTED OF DESERTION TO REGAIN THEIR CITIZENSHIP AND CONTINUE SERVING
IN THE ARMED FORCES, H.R. REP. NO. 302, 78TH CONG., 1ST SESS. 1; S.
REP. NO. 382, 78TH CONG., 1ST SESS. 1; 89 CONG. REC. 10135.  BECAUSE IT
WAS THOUGHT UNREASONABLE TO REQUIRE PERSONS WHO WERE STILL IN THE
SERVICE TO FIGHT AND, PERHAPS, DIE FOR THE COUNTRY WHEN THEY WERE NO
LONGER CITIZENS, THE REQUIREMENT OF DISMISSAL OR DISHONORABLE DISCHARGE
PRIOR TO DENATIONALIZATION WAS INCLUDED IN THE AMENDMENT.  SEE S. REP.
NO. 382, SUPRA, AT 3; 89 CONG. REC. 3241. 

PETITIONER ADVANCES TWO POSSIBLE CONSTRUCTIONS OF SEC. 401(G) THAT
WOULD EXCLUDE HIM FROM ITS OPERATION AND AVOID CONSTITUTIONAL
DETERMINATIONS.  IT IS SUGGESTED THAT THE PROVISION APPLIES ONLY TO
DESERTION TO THE ENEMY AND THAT THE SENTENCE OF A DISHONORABLE
DISCHARGE, WITHOUT THE IMPOSITION OF WHICH A CONVICTION FOR DESERTION
DOES NOT HAVE AN EXPATRIATING EFFECT, MUST HAVE RESULTED FROM A
CONVICTION SOLELY FOR DESERTION.  THERE IS NO SUPPORT FOR THE FIRST OF
THESE CONSTRUCTIONS IN A FAIR READING OF SEC. 401(G) OR IN ITS
CONGRESSIONAL HISTORY.  RIGOROUSLY AS WE ARE ADMONISHED TO AVOID
CONSIDERATION OF CONSTITUTIONAL ISSUES IF STATUTORY DISPOSITION IS
AVAILABLE, IT WOULD DO VIOLENCE TO WHAT THIS STATUTE COMPELLINGLY
CONVEYS TO DRAW FROM IT A MEANING OTHER THAN WHAT IT SPONTANEOUSLY
REVEALS. 

"PROVIDED HE IS CONVICTED THEREOF BY COURT MARTIAL AND AS THE RESULT OF
SUCH CONVICTION IS DISMISSED OR DISHONORABLY DISCHARGED FROM THE
SERVICE OF SUCH MILITARY OR NAVAL FORCES  ...  ."  PETITIONER'S
ARGUMENT IS THAT THE DISHONORABLE DISCHARGE MUST BE SOLELY "THE RESULT
OF SUCH CONVICTION" AND THAT SEC. 401(G) IS THEREFORE NOT APPLICABLE TO
HIM, CONVICTED AS HE WAS OF ESCAPE FROM CONFINEMENT AND ABSENCE WITHOUT
LEAVE IN ADDITION TO DESERTION.  SINCE THE INVARIABLE PRACTICE IN
MILITARY TRIALS IS AND HAS BEEN THAT RELATED OFFENSES ARE TRIED
TOGETHER WITH BUT A SINGLE SENTENCE TO COVER ALL CONVICTIONS, SEE
JACKSON V. TAYLOR, 353 U.S. 569, 574, THE EFFECT OF THE SUGGESTED
CONSTRUCTION WOULD BE TO FORCE A BREAK WITH THE HISTORIC PROCESS OF
MILITARY LAW FOR WHICH CONGRESS HAS NOT IN THE REMOTEST WAY GIVEN
WARRANT.  THE OBVIOUS PURPOSE OF THE 1944 AMENDMENT, REQUIRING
DISHONORABLE DISCHARGE AS A CONDITION PRECEDENT TO EXPATRIATION, WAS TO
CORRECT THE SITUATION IN WHICH AN INDIVIDUAL WHO HAD BEEN CONVICTED OF
DESERTION, AND WHO HAD THUS LOST HIS CITIZENSHIP, WAS KEPT ON DUTY TO
FIGHT AND SOMETIMES DIE "FOR HIS COUNTRY WHICH DISOWNS HIM."  LETTER
FROM SECRETARY OF WAR TO CHAIRMAN, SENATE MILITARY AFFAIRS COMMITTEE,
S. REP. NO. 382, 78TH CONG., 1ST SESS. 3.  THERE IS NOT A HINT IN THE
CONGRESSIONAL HISTORY THAT THE REQUIREMENT OF DISCHARGE WAS INTENDED TO
MAKE EXPATRIATION DEPEND ON THE SERIOUSNESS OF THE DESERTION, AS
MEASURED BY THE SENTENCE IMPOSED.  IF WE ARE TO GIVE EFFECT TO THE
PURPOSE OF CONGRESS IN MAKING A CONVICTION FOR WARTIME DESERTION RESULT
IN LOSS OF CITIZENSHIP, WE MUST HOLD THAT THE DISHONORABLE DISCHARGE,
IN ORDER FOR EXPATRIATION TO FOLLOW, NEED ONLY BE "THE RESULT OF"
CONVICTION FOR ONE OR MORE OFFENSES AMONG WHICH ONE MUST BE WARTIME
DESERTION. 

SINCE NONE OF PETITIONER'S NONCONSTITUTIONAL GROUNDS FOR REVERSAL CAN
BE SUSTAINED, HIS CLAIM OF UNCONSTITUTIONALITY MUST BE FACED.  WHAT IS
ALWAYS BASIC WHEN THE POWER OF CONGRESS TO ENACT LEGISLATION IS
CHALLENGED IS THE APPROPRIATE APPROACH TO JUDICIAL REVIEW OF
CONGRESSIONAL LEGISLATION.  ALL POWER IS, IN MADISON'S PHRASE, "OF AN
ENCROACHING NATURE."  FEDERALIST, NO. 48 (EARLE ED. 1937), AT 321. 
JUDICIAL POWER IS NOT IMMUNE AGAINST THIS HUMAN WEAKNESS.  IT ALSO MUST
BE ON GUARD AGAINST ENCROACHING BEYOND ITS PROPER BOUNDS, AND NOT THE
LESS SO SINCE THE ONLY RESTRAINT UPON IT IS SELF-RESTRAINT.  WHEN THE
POWER OF CONGRESS TO PASS A STATUTE IS CHALLENGED, THE FUNCTION OF THIS
COURT IS TO DETERMINE WHETHER LEGISLATIVE ACTION LIES CLEARLY OUTSIDE
THE CONSTITUTIONAL GRANT OF POWER TO WHICH IT HAS BEEN, OR MAY FAIRLY
BE, REFERRED.  IN MAKING THIS DETERMINATION, THE COURT SITS IN JUDGMENT
ON THE ACTION OF A CO-ORDINATE BRANCH OF THE GOVERNMENT WHILE KEEPING
UNTO ITSELF - AS IT MUST UNDER OUR CONSTITUTIONAL SYSTEM - THE FINAL
DETERMINATION OF ITS OWN POWER TO ACT.  NO WONDER SUCH A FUNCTION IS
DEEMED "THE GRAVEST AND MOST DELICATE DUTY THAT THIS COURT IS CALLED ON
TO PERFORM."  HOLMES, J., IN BLODGETT V. HOLDEN, 275 U.S. 142, 148
(SEPARATE OPINION).  THIS IS NOT A LIP-SERVING PLATITUDE. 

RIGOROUS OBSERVANCE OF THE DIFFERENCE BETWEEN LIMITS OF POWER AND
WISE EXERCISE OF POWER - BETWEEN QUESTIONS OF AUTHORITY AND QUESTIONS
OF PRUDENCE - REQUIRES THE MOST ALERT APPRECIATION OF THIS DECISIVE BUT
SUBTLE RELATIONSHIP OF TWO CONCEPTS THAT TOO EASILY COALESCE.  NO LESS
DOES IT REQUIRE A DISCIPLINED WILL TO ADHERE TO THE DIFFERENCE.  IT IS
NOT EASY TO STAND ALOOF AND ALLOW WANT OF WISDOM TO PREVAIL, TO
DISREGARD ONE'S OWN STRONGLY HELD VIEW OF WHAT IS WISE IN THE CONDUCT
OF AFFAIRS.  BUT IT IS NOT THE BUSINESS OF THIS COURT TO PRONOUNCE
POLICY.  IT MUST OBSERVE A FASTIDIOUS REGARD FOR LIMITATIONS ON ITS OWN
POWER, AND THIS PRECLUDES THE COURT'S GIVING EFFECT TO ITS OWN NOTIONS
OF WHAT IS WISE OR POLITIC.  THAT SELF-RESTRAINT IS OF THE ESSENCE IN
THE OBSERVANCE OF THE JUDICIAL OATH, FOR THE CONSTITUTION HAS NOT
AUTHORIZED THE JUDGES TO SIT IN JUDGMENT ON THE WISDOM OF WHAT CONGRESS
AND THE EXECUTIVE BRANCH DO. 

ONE OF THE PRINCIPAL PURPOSES IN ESTABLISHING THE CONSTITUTION WAS TO
"PROVIDE FOR THE COMMON DEFENCE."  TO THAT END THE STATES GRANTED TO
CONGRESS THE SEVERAL POWERS OF ARTICLE I, SECTION 8, CLAUSES 11 TO 14
AND 18, COMPENDIOUSLY DESCRIBED AS THE "WAR POWER."  ALTHOUGH THESE
SPECIFIC GRANTS OF POWER DO NOT SPECIFICALLY ENUMERATE EVERY FACTOR
RELEVANT TO THE POWER TO CONDUCT WAR, THERE IS NO LIMITATION UPON IT
(OTHER THAN WHAT THE DUE PROCESS CLAUSE COMMANDS).  THE SCOPE OF THE
WAR POWER HAS BEEN DEFINED BY CHIEF JUSTICE HUGHES IN HOME BLDG. & LOAN
ASSN. V. BLAISDELL, 290 U.S. 398, 426: "THE WAR POWER OF THE FEDERAL
GOVERNMENT IS NOT CREATED BY THE EMERGENCY OF WAR, BUT IT IS A POWER
GIVEN TO MEET THAT EMERGENCY.  IT IS A POWER TO WAGE WAR SUCCESSFULLY,
AND THUS IT PERMITS THE HARNESSING OF THE ENTIRE ENERGIES OF THE PEOPLE
IN A SUPREME COOPERATIVE EFFORT TO PRESERVE THE NATION."  SEE ALSO
CHIEF JUSTICE STONE'S OPINION IN HIRABAYASHI V. UNITED STATES, 320 U.S.
81, 93. 

PROBABLY THE MOST IMPORTANT GOVERNMENTAL ACTION CONTEMPLATED BY THE
WAR POWER IS THE BUILDING UP AND MAINTENANCE OF AN ARMED FORCE FOR THE
COMMON DEFENSE.  JUST AS CONGRESS MAY BE CONVINCED OF THE NECESSITY FOR
CONSCRIPTION FOR THE EFFECTIVE CONDUCT OF WAR, SELECTIVE DRAFT LAW
CASES, 245 U.S. 366, CONGRESS MAY JUSTIFIABLY BE OF THE VIEW THAT STERN
MEASURES - WHAT TO SOME MAY SEEM OVERLY STERN - ARE NEEDED IN ORDER
THAT CONTROL MAY BE HAD OVER EVASIONS OF MILITARY DUTY WHEN THE ARMED
FORCES ARE COMMITTED TO THE NATION'S DEFENSE, AND THAT THE DELETERIOUS
EFFECTS OF THOSE EVASIONS MAY BE KEPT TO THE MINIMUM.  CLEARLY CONGRESS
MAY DEAL SEVERELY WITH THE PROBLEM OF DESERTION FROM THE ARMED FORCES
IN WARTIME; IT IS EQUALLY CLEAR - FROM THE FACE OF THE LEGISLATION AND
FROM THE CIRCUMSTANCES IN WHICH IT WAS PASSED - THAT CONGRESS WAS
CALLING UPON ITS WAR POWERS WHEN IT MADE SUCH DESERTION AN ACT OF
EXPATRIATION.  CF. WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED.,
REPRINT 1920), 647. 

POSSESSION BY AN AMERICAN CITIZEN OF THE RIGHTS AND PRIVILEGES THAT
CONSTITUTE CITIZENSHIP IMPOSES CORRELATIVE OBLIGATIONS, OF WHICH THE
MOST INDISPENSABLE MAY WELL BE "TO TAKE HIS PLACE IN THE RANKS OF THE
ARMY OF HIS COUNTRY AND RISK THE CHANCE OF BEING SHOT DOWN IN ITS
DEFENSE," JACOBSON V. MASSACHUSETTS, 197 U.S. 11, 29.  HARSH AS THIS
MAY SOUND, IT IS NO MORE SO THAN THE ACTUALITIES TO WHICH IT RESPONDS. 
CAN IT BE SAID THAT THERE IS NO RATIONAL NEXUS BETWEEN REFUSAL TO
PERFORM THIS ULTIMATE DUTY OF AMERICAN CITIZENSHIP AND LEGISLATIVE
WITHDRAWAL OF THAT CITIZENSHIP?  CONGRESS MAY WELL HAVE THOUGHT THAT
MAKING LOSS OF CITIZENSHIP A CONSEQUENCE OF WARTIME DESERTION WOULD
AFFECT THE ABILITY OF THE MILITARY AUTHORITIES TO CONTROL THE FORCES
WITH WHICH THEY WERE EXPECTED TO FIGHT AND WIN A MAJOR WORLD CONFLICT. 
IT IS NOT FOR US TO DENY THAT CONGRESS MIGHT REASONABLY HAVE BELIEVED
THE MORALE AND FIGHTING EFFICIENCY OF OUR TROOPS WOULD BE IMPAIRED IF
OUR SOLDIERS KNEW THAT THEIR FELLOWS WHO HAD ABANDONED THEM IN THEIR
TIME OF GREATEST NEED WERE TO REMAIN IN THE COMMUNION OF OUR CITIZENS. 

PETITIONER URGES THAT IMPOSING LOSS OF CITIZENSHIP AS A "PUNISHMENT"
FOR WARTIME DESERTION IS A VIOLATION OF BOTH THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT AND THE EIGHTH AMENDMENT.  HIS OBJECTIONS ARE THAT
THERE IS NO NOTICE OF EXPATRIATION AS A CONSEQUENCE OF DESERTION IN THE
PROVISION DEFINING THAT OFFENSE, THAT LOSS OF CITIZENSHIP AS A
"PUNISHMENT" IS UNCONSTITUTIONALLY DISPROPORTIONATE TO THE OFFENSE OF
DESERTION AND THAT LOSS OF CITIZENSHIP CONSTITUTES "CRUEL AND UNUSUAL
PUNISHMENT." 

THE PROVISION OF THE ARTICLES OF WAR UNDER WHICH PETITIONER WAS
CONVICTED FOR DESERTION, ART. 58, ARTICLES OF WAR, 41 STAT. 787, 800,
DOES NOT MENTION THE FACT THAT ONE CONVICTED OF THAT OFFENSE IN WARTIME
SHOULD SUFFER THE LOSS OF HIS CITIZENSHIP.  IT MAY BE THAT STATING ALL
OF THE CONSEQUENCES OF CONDUCT IN THE STATUTORY PROVISION MAKING IT AN
OFFENSE IS A DESIDERATUM IN THE ADMINISTRATION OF CRIMINAL JUSTICE;
THAT CAN SCARCELY BE SAID - NOR DOES PETITIONER CONTEND THAT IT EVER
HAS BEEN SAID - TO BE A CONSTITUTIONAL REQUIREMENT.  IT IS NOT FOR US
TO REQUIRE CONGRESS TO LIST IN ONE STATUTORY SECTION NOT ONLY THE
ORDINARY PENAL CONSEQUENCES OF ENGAGING IN ACTIVITIES THEREIN
PROHIBITED BUT ALSO THE COLLATERAL DISABILITIES THAT FOLLOW, BY
OPERATION OF LAW, FROM A CONVICTION THEREOF DULY RESULTING FROM A
PROCEEDING CONDUCTED IN ACCORDANCE WITH ALL OF THE RELEVANT
CONSTITUTIONAL SAFEGUARDS.  (FN3) 

OF COURSE AN INDIVIDUAL SHOULD BE APPRISED OF THE CONSEQUENCES OF HIS
ACTIONS.  THE ARTICLES OF WAR PUT PETITIONER ON NOTICE THAT DESERTION
WAS AN OFFENSE AND THAT, WHEN COMMITTED IN WARTIME, IT WAS PUNISHABLE
BY DEATH.  ART. 58, SUPRA.  EXPATRIATION AUTOMATICALLY FOLLOWED BY
COMMAND OF THE NATIONALITY ACT OF 1940, A DULY PROMULGATED ACT OF
CONGRESS.  THE WAR DEPARTMENT APPEARS TO HAVE MADE EVERY EFFORT TO
INFORM INDIVIDUAL SOLDIERS OF THE GRAVITY OF THE CONSEQUENCES OF
DESERTION; ITS CIRCULAR NO. 273 OF 1942 POINTED OUT THAT CONVICTIONS
FOR DESERTION WERE PUNISHABLE BY DEATH AND WOULD RESULT IN "FORFEITURE
OF THE RIGHTS OF CITIZENSHIP," AND IT INSTRUCTED UNIT COMMANDERS TO
"EXPLAIN CAREFULLY TO ALL PERSONNEL OF THEIR COMMANDS (CERTAIN ARTICLES
OF WAR, INCLUDING ART. 58) ...  AND EMPHASIZE THE SERIOUS CONSEQUENCES
WHICH MAY RESULT FROM THEIR VIOLATION."  COMPILATION OF WAR DEPARTMENT
GENERAL ORDERS, BULLETINS, AND CIRCULARS (GOVERNMENT PRINTING OFFICE
1943) 343.  THAT CONGRESS MUST DEFINE IN THE RUBRIC OF THE SUBSTANTIVE
CRIME ALL THE CONSEQUENCES OF CONDUCT IT HAS MADE A GRAVE OFFENSE AND
THAT IT CANNOT PROVIDE FOR A COLLATERAL CONSEQUENCE, STERN AS IT MAY
BE, BY EXPLICIT PRONOUNCEMENT IN ANOTHER PLACE ON THE STATUTE BOOKS IS
A CLAIM THAT HARDLY RISES TO THE DIGNITY OF A CONSTITUTIONAL
REQUIREMENT. 

PETITIONER CONTENDS THAT LOSS OF CITIZENSHIP IS AN UNCONSTITUTIONALLY
DISPROPORTIONATE "PUNISHMENT" FOR DESERTION AND THAT IT CONSTITUTES
"CRUEL AND UNUSUAL PUNISHMENT" WITHIN THE SCOPE OF THE EIGHTH
AMENDMENT.  LOSS OF CITIZENSHIP ENTAILS UNDOUBTEDLY SEVERE - AND IN
PARTICULAR SITUATIONS EVEN TRAGIC - CONSEQUENCES.  DIVESTMENT OF
CITIZENSHIP BY THE GOVERNMENT HAS BEEN CHARACTERIZED, IN THE CONTEXT OF
DENATURALIZATION, AS "MORE SERIOUS THAN A TAKING OF ONE'S PROPERTY, OR
THE IMPOSITION OF A FINE OR OTHER PENALTY."  SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118, 122.  HOWEVER, LIKE DENATURALIZATION, SEE
KLAPPROTT V. UNITED STATES, 335 U.S. 601, 612, EXPATRIATION UNDER THE
NATIONALITY ACT OF 1940 IS NOT "PUNISHMENT" IN ANY VALID CONSTITUTIONAL
SENSE.  CF. FONG YUE TING V. UNITED STATES, 149 U.S. 698, 730.  SIMPLY
BECAUSE DENATIONALIZATION WAS ATTACHED BY CONGRESS AS A CONSEQUENCE OF
CONDUCT THAT IT HAD ELSEWHERE MADE UNLAWFUL, IT DOES NOT FOLLOW THAT
DENATIONALIZATION IS A "PUNISHMENT," ANY MORE THAN IT CAN BE SAID THAT
LOSS OF CIVIL RIGHTS AS A RESULT OF CONVICTION FOR A FELONY, SEE
GATHINGS, LOSS OF CITIZENSHIP AND CIVIL RIGHTS FOR CONVICTION OF CRIME,
43 AM. POL.  SCI.  REV. 1228, 1233, IS A "PUNISHMENT" FOR ANY LEGALLY
SIGNIFICANT PURPOSES.  THE PROCESS OF DENATIONALIZATION, AS DEVISED BY
THE EXPERT CABINET COMMITTEE ON WHICH CONGRESS QUITE PROPERLY AND
RESPONSIBLY RELIED (FN4) AND AS ESTABLISHED BY CONGRESS IN THE
LEGISLATION BEFORE THE COURT, (FN5) WAS RELATED TO THE AUTHORITY OF
CONGRESS, PURSUANT TO ITS CONSTITUTIONAL POWERS, TO REGULATE CONDUCT
FREE FROM RESTRICTIONS THAT PERTAIN TO LEGISLATION IN THE FIELD
TECHNICALLY DESCRIBED AS CRIMINAL JUSTICE.  SINCE THERE ARE LEGISLATIVE
ENDS WITHIN THE SCOPE OF CONGRESS' WAR POWER THAT ARE WHOLLY CONSISTENT
WITH A "NON-PENAL" PURPOSE TO REGULATE THE MILITARY FORCES, AND SINCE
THERE IS NOTHING ON THE FACE OF THIS LEGISLATION OR IN ITS HISTORY TO
INDICATE THAT CONGRESS HAD A CONTRARY PURPOSE, THERE IS NO WARRANT FOR
THE COURT'S LABELING THE DISABILITY IMPOSED BY SEC. 401(G) AS A
"PUNISHMENT." 

EVEN ASSUMING, ARGUENDO, THAT SEC. 401(G) CAN BE SAID TO IMPOSE
"PUNISHMENT," TO INSIST THAT DENATIONALIZATION IS "CRUEL AND UNUSUAL"
PUNISHMENT IS TO STRETCH THAT CONCEPT BEYOND THE BREAKING POINT.  IT
SEEMS SCARCELY ARGUABLE THAT LOSS OF CITIZENSHIP IS WITHIN THE EIGHTH
AMENDMENT'S PROHIBITION BECAUSE DISPROPORTIONATE TO AN OFFENSE THAT IS
CAPITAL AND HAS BEEN SO FROM THE FIRST YEAR OF INDEPENDENCE.  ART. 58,
SUPRA; SEC. 6, ART. 1, ARTICLES OF WAR OF 1776, 5 J. CONT.  CONG. 
(FORD ED. 1906) 792.  IS CONSTITUTIONAL DIALECTIC SO EMPTY OF REASON
THAT IT CAN BE SERIOUSLY URGED THAT LOSS OF CITIZENSHIP IS A FATE WORSE
THAN DEATH?  THE SERIOUSNESS OF ABANDONING ONE'S COUNTRY WHEN IT IS IN
THE GRIP OF MORTAL CONFLICT PRECLUDES DENIAL TO CONGRESS OF THE POWER
TO TERMINATE CITIZENSHIP HERE, UNLESS THAT POWER IS TO BE DENIED TO
CONGRESS UNDER ANY CIRCUMSTANCE. 

MANY CIVILIZED NATIONS IMPOSE LOSS OF CITIZENSHIP FOR INDULGENCE IN
DESIGNATED PROHIBITED ACTIVITIES.  SEE, GENERALLY, LAWS CONCERNING
NATIONALITY, U.N. DOC. NO. ST/LEG/SER.B/4 (1954).  ALTHOUGH THESE
PROVISIONS ARE OFTEN, BUT NOT ALWAYS, APPLICABLE ONLY TO NATURALIZED
CITIZENS, THEY ARE MORE NEARLY COMPARABLE TO OUR EXPATRIATION LAW THAN
TO OUR DENATURALIZATION LAW.  (FN6)  SOME COUNTRIES HAVE MADE WARTIME
DESERTION RESULT IN LOSS OF CITIZENSHIP - NATIVE-BORN OR NATURALIZED. 
E.G., SEC. 1(6), PHILIPPINE COMMONWEALTH ACT NO. 63 OF OCT. 21, 1936,
AS AMENDED BY REPUBLIC ACT NO. 106 OF JUNE 2, 1947, U.N. DOC., SUPRA,
AT 379; SEE BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD, 730. 
IN THIS COUNTRY, DESERTION HAS BEEN PUNISHABLE BY LOSS OF AT LEAST THE
"RIGHTS OF CITIZENSHIP" (FN7) SINCE 1865.  THE COURT TODAY REAFFIRMS
ITS DECISIONS (MACKENZIE V. HARE, 239 U.S. 299; SAVORGNAN V. UNITED
STATES, 338 U.S. 491) SUSTAINING THE POWER OF CONGRESS TO DENATIONALIZE
CITIZENS WHO HAD NO DESIRE OR INTENTION TO GIVE UP THEIR CITIZENSHIP. 
IF LOSS OF CITIZENSHIP MAY CONSTITUTIONALLY BE MADE THE CONSEQUENCE OF
SUCH CONDUCT AS MARRYING A FOREIGNER, AND THUS CERTAINLY NOT "CRUEL AND
UNUSUAL," IT SEEMS MORE THAN INCONGRUOUS THAT SUCH LOSS SHOULD BE
THOUGHT "CRUEL AND UNUSUAL" WHEN IT IS THE CONSEQUENCE OF CONDUCT THAT
IS ALSO A CRIME.  IN SHORT, DENATIONALIZATION, WHEN ATTACHED TO THE
OFFENSE OF WARTIME DESERTION, CANNOT JUSTIFIABLY BE DEEMED SO AT
VARIANCE WITH ENLIGHTENED CONCEPTS OF "HUMANE JUSTICE," SEE WEEMS V.
UNITED STATES, 217 U.S. 349, 378, AS TO BE BEYOND THE POWER OF
CONGRESS, BECAUSE CONSTITUTING A "CRUEL AND UNUSUAL" PUNISHMENT WITHIN
THE MEANING OF THE EIGHTH AMENDMENT. 

NOR HAS CONGRESS FALLEN AFOUL OF THAT PROHIBITION BECAUSE A PERSON'S
POST-DENATIONALIZATION STATUS HAS ELEMENTS OF UNPREDICTABILITY. 
PRESUMABLY A DENATIONALIZED PERSON BECOMES AN ALIEN VIS-A-VIS THE
UNITED STATES.  THE VERY SUBSTANTIAL RIGHTS AND PRIVILEGES THAT THE
ALIEN IN THIS COUNTRY ENJOYS UNDER THE FEDERAL AND STATE CONSTITUTIONS
PUTS HIM IN A VERY DIFFERENT CONDITION FROM THAT OF AN OUTLAW IN
FIFTEENTH-CENTURY ENGLAND.  HE NEED NOT BE IN CONSTANT FEAR LEST SOME
DIRE AND UNFORESEEN FATE TO BE IMPOSED ON HIM BY ARBITRARY GOVERNMENTAL
ACTION - CERTAINLY NOT "WHILE THIS COURT SITS" (HOLMES, J., DISSENTING
IN PANHANDLE OIL CO. V. MISSISSIPPI EX REL. KNOX, 277 U.S. 218, 223). 
THE MULTITUDINOUS DECISIONS OF THIS COURT PROTECTIVE OF THE RIGHTS OF
ALIENS BEAR WEIGHTY TESTIMONY.  AND THE ASSUMPTION THAT BRUTAL
TREATMENT IS THE INEVITABLE LOT OF DENATIONALIZED PERSONS FOUND IN
OTHER COUNTRIES IS A SLENDER BASIS ON WHICH TO STRIKE DOWN AN ACT OF
CONGRESS OTHERWISE AMPLY SUSTAINABLE. 

IT MISGUIDES POPULAR UNDERSTANDING OF THE JUDICIAL FUNCTION AND OF
THE LIMITED POWER OF THIS COURT IN OUR DEMOCRACY TO SUGGEST THAT BY NOT
INVALIDATING AN ACT OF CONGRESS WE WOULD ENDANGER THE NECESSARY
SUBORDINATION OF THE MILITARY TO CIVIL AUTHORITY.  THIS CASE, NO DOUBT,
DERIVES FROM THE CONSEQUENCE OF A COURT-MARTIAL.  BUT WE ARE SITTING IN
JUDGMENT NOT ON THE MILITARY BUT ON CONGRESS.   THE MILITARY MERELY
CARRIED OUT A RESPONSIBILITY WITH WHICH THEY WERE CHARGED BY CONGRESS. 
SHOULD THE ARMED FORCES HAVE CEASED DISCHARGING WARTIME DESERTERS
BECAUSE CONGRESS ATTACHED THE CONSEQUENCE IT DID TO THEIR PERFORMANCE
OF THAT RESPONSIBILITY? 

THIS LEGISLATION IS THE RESULT OF AN EXERCISE BY CONGRESS OF THE
LEGISLATIVE POWER VESTED IN IT BY THE CONSTITUTION AND OF AN EXERCISE
BY THE PRESIDENT OF HIS CONSTITUTIONAL POWER IN APPROVING A BILL AND
THEREBY MAKING IT "A LAW."  TO SUSTAIN IT IS TO RESPECT THE ACTIONS OF
THE TWO BRANCHES OF OUR GOVERNMENT DIRECTLY RESPONSIVE TO THE WILL OF
THE PEOPLE AND EMPOWERED UNDER THE CONSTITUTION TO DETERMINE THE WISDOM
OF LEGISLATION.  THE AWESOME POWER OF THIS COURT TO INVALIDATE SUCH
LEGISLATION, BECAUSE IN PRACTICE IT IS BOUNDED ONLY BY OUR OWN PRUDENCE
IN DISCERNING THE LIMITS OF THE COURT'S CONSTITUTIONAL FUNCTION, MUST
BE EXERCISED WITH THE UTMOST RESTRAINT.  MR. JUSTICE HOLMES, ONE OF THE
PROFOUNDEST THINKERS WHO EVER SAT ON THIS COURT, EXPRESSED THE
CONVICTION THAT "I DO NOT THINK THE UNITED STATES WOULD COME TO AN END
IF WE LOST OUR POWER TO DECLARE AN ACT OF CONGRESS VOID.  I DO THINK
THE UNION WOULD BE IMPERILED IF WE COULD NOT MAKE THAT DECLARATION AS
TO THE LAWS OF THE SEVERAL STATES."  HOLMES, SPEECHES, 102.  HE DID
NOT, OF COURSE, DENY THAT THE POWER EXISTED TO STRIKE DOWN
CONGRESSIONAL LEGISLATION, NOR DID HE SHRINK FROM ITS EXERCISE.  BUT
THE WHOLE OF HIS WORK DURING HIS THIRTY YEARS OF SERVICE ON THIS COURT
SHOULD BE A CONSTANT REMINDER THAT THE POWER TO INVALIDATE LEGISLATION
MUST NOT BE EXERCISED AS IF, EITHER IN CONSTITUTIONAL THEORY OR IN THE
ART OF GOVERNMENT, IT STOOD AS THE SOLE BULWARK AGAINST UNWISDOM OR
EXCESSES OF THE MOMENT. 

FN1  THE SUBSTANCE OF THIS PROVISION NOW APPEARS IN SEC. 349(A)(8) OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163, 268, 8
U.S.C. SEC. 1481(A)(8). 

FN2  THE PRECISE MEANING OF THIS PHRASE HAS NEVER BEEN CLEAR, SEE
ROCHE, THE LOSS OF AMERICAN NATIONALITY - THE DEVELOPMENT OF STATUTORY
EXPATRIATION, 99 U. OF PA. L. REV.  25, 61-62.  IT APPEARS, HOWEVER,
THAT THE STATE DEPARTMENT REGARDED IT TO MEAN LOSS OF CITIZENSHIP, SEE,
E.G., HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON H.R. 6127, 76TH CONG., 1ST SESS. 38. 

FN3  IT SHOULD BE NOTED THAT A PERSON CANNOT BE DEPRIVED OF HIS
CITIZENSHIP MERELY ON THE BASIS OF AN ADMINISTRATIVE FINDING THAT HE
DESERTED IN WARTIME OR EVEN WITH FINALITY ON THE SOLE BASIS OF HIS
HAVING BEEN DISHONORABLY DISCHARGED AS A RESULT OF A CONVICTION FOR
WARTIME DESERTION.  SECTION 503 OF THE NATIONALITY ACT OF 1940
PROVIDES: 

"IF ANY PERSON WHO CLAIMS A RIGHT OR PRIVILEGE AS A NATIONAL OF THE
UNITED STATES IS DENIED SUCH RIGHT OR PRIVILEGE BY ANY DEPARTMENT OR
AGENCY, OR EXECUTIVE OFFICIAL THEREOF, UPON THE GROUND THAT HE IS NOT A
NATIONAL OF THE UNITED STATES, SUCH PERSON, REGARDLESS OF WHETHER HE IS
WITHIN THE UNITED STATES OR ABROAD, MAY INSTITUTE AN ACTION AGAINST THE
HEAD OF SUCH DEPARTMENT OR AGENCY IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT OF COLUMBIA OR IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT IN WHICH SUCH PERSON CLAIMS A PERMANENT
RESIDENCE FOR A JUDGMENT DECLARING HIM TO BE A NATIONAL OF THE UNITED
STATES  ...  ."  54 STAT. 1137, 1171, NOW SEC. 360 OF THE IMMIGRATION
AND NATIONALITY ACT OF 1952, 66 STAT. 163, 273, 8 U.S.C. SEC. 1503.  IN
SUCH A PROCEEDING IT IS OPEN TO A PERSON WHO, LIKE PETITIONER, IS
ALLEGED TO HAVE BEEN EXPATRIATED UNDER SEC. 401(G) OF THE 1940 ACT TO
SHOW, FOR EXAMPLE, THAT THE COURT-MARTIAL WAS WITHOUT JURISDICTION
(INCLUDING OBSERVANCE OF THE REQUIREMENTS OF DUE PROCESS) OR THAT THE
INDIVIDUAL, BY HIS RESTORATION TO ACTIVE DUTY AFTER CONVICTION AND
DISCHARGE, REGAINED HIS CITIZENSHIP UNDER THE TERMS OF THE PROVISO IN
SEC. 401(G), SUPRA.    FN4  THE REPORT OF THAT COMMITTEE STATED THAT
THE PROVISION IN QUESTION "TECHNICALLY IS NOT A PENAL LAW." 
CODIFICATION OF THE NATIONALITY LAWS OF THE UNITED STATES, SUPRA, AT
68.  IN THEIR LETTER TO THE PRESIDENT COVERING THE REPORT, THE
COMMITTEE STATED THAT NONE OF THE LOSS OF NATIONALITY PROVISIONS WAS
"DESIGNED TO BE PUNITIVE  ...  ."  ID., AT VII. 

FN5  THERE IS NO BASIS FOR FINDING THAT THE CONGRESS THAT ENACTED
THIS PROVISION REGARDED IT OTHERWISE THAN AS PART OF THE CLEARLY
NONPENAL SCHEME OF "ACTS OF EXPATRIATION" REPRESENTED BY SEC. 401 OF
THE NATIONALITY ACT OF 1940, SUPRA. 

FN6  IN THE UNITED STATES, DENATURALIZATION IS BASED EXCLUSIVELY ON
THE THEORY THAT THE INDIVIDUAL OBTAINED HIS CITIZENSHIP BY FRAUD, SEE
LURIA V. UNITED STATES, 231 U.S. 9, 24; THE LAWS OF MANY COUNTRIES
MAKING NATURALIZED CITIZENS SUBJECT TO EXPATRIATION FOR GROUNDS NOT
APPLICABLE TO NATURAL-BORN CITIZENS DO NOT RELATE THOSE GROUNDS TO THE
ACTUAL NATURALIZATION PROCESS.  E.G., BRITISH NATIONALITY ACT, 1948, 11
& 12 GEO. VI, C. 56, SEC. 20(3). 

FN7  SEE NOTE 2, SUPRA.
..END :























NISHIKAWA V. DULLES 356 U.S. 129 


NO. 19.  ARGUED MAY 1-2, 1957 - RESTORED TO THE CALENDAR FOR REARGUMENT
JUNE 24, 1957 - REARGUED OCTOBER 28, 1957 - DECIDED MARCH 31, 1958 -
235 F.2D 135, REVERSED. 


PETITIONER WAS A NATIVE-BORN CITIZEN OF THE UNITED STATES AND HE WAS
CONSIDERED BY JAPAN TO BE A CITIZEN OF THAT COUNTRY BECAUSE HIS PARENTS
WERE JAPANESE CITIZENS.  IN 1939, HE WENT TO JAPAN, INTENDING TO STAY
BETWEEN TWO AND FIVE YEARS VISITING AND STUDYING.  IN 1941, HE WAS
CONSCRIPTED INTO THE JAPANESE ARMY, AND HE SERVED IN THAT ARMY WHILE
JAPAN WAS AT WAR WITH THE UNITED STATES.  AFTER THE WAR, HE APPLIED FOR
AN AMERICAN PASSPORT BUT WAS GIVEN INSTEAD A CERTIFICATE OF LOSS OF
NATIONALITY.  HE SUED FOR A DECLARATORY JUDGMENT THAT HE WAS A CITIZEN
OF THE UNITED STATES.  THIS WAS DENIED BECAUSE THE DISTRICT JUDGE DID
NOT BELIEVE HIS TESTIMONY THAT HIS SERVICE IN THE JAPANESE ARMY WAS
INVOLUNTARY.  PETITIONER ALONE TESTIFIED AT THE TRIAL.  THE GOVERNMENT
INTRODUCED NO TESTIMONY, AND ITS ONLY AFFIRMATIVE EVIDENCE WAS THAT
PETITIONER WENT TO JAPAN AT A TIME WHEN HE WAS SUBJECT TO
CONSCRIPTION.  HELD:  THE EVIDENCE WAS NOT SUFFICIENT TO ESTABLISH
PETITIONER'S LOSS OF CITIZENSHIP UNDER SEC. 401(C) OF THE NATIONALITY
ACT OF 1940 AS A RESULT OF HIS ENTERING AND SERVING IN THE ARMED FORCES
OF A FOREIGN STATE.  PP. 130-138. 

(A)  NO CONDUCT RESULTS IN EXPATRIATION UNLESS THE CONDUCT IS ENGAGED
IN VOLUNTARILY.  P. 133. 

(B)  WHEN A CITIZENSHIP CLAIMANT PROVES HIS BIRTH IN THIS COUNTRY OR
ACQUISITION OF AMERICAN CITIZENSHIP IN SOME OTHER WAY, THE BURDEN IS
UPON THE GOVERNMENT TO PROVE AN ACT THAT SHOWS EXPATRIATION BY CLEAR,
CONVINCING AND UNEQUIVOCAL EVIDENCE; AND THIS RULE GOVERNS CASES UNDER
ALL SUBSECTIONS OF SEC. 401.  P. 133. 

(C)  BECAUSE THE CONSEQUENCES OF DENATIONALIZATION ARE SO DRASTIC,
THE BURDEN IS UPON THE GOVERNMENT OF PERSUADING THE TRIER OF FACT BY
CLEAR, CONVINCING AND UNEQUIVOCAL EVIDENCE THAT THE ACT SHOWING
RENUNCIATION OF CITIZENSHIP WAS PERFORMED VOLUNTARILY WHENEVER THE
QUESTION OF VOLUNTARINESS IS PUT IN ISSUE.  PP. 133-137. 

(D)  ON THE RECORD IN THIS CASE, THE GOVERNMENT HAS NOT SUSTAINED THE
BURDEN OF ESTABLISHING THE VOLUNTARY CONDUCT THAT IS AN ESSENTIAL
INGREDIENT OF EXPATRIATION.  PP. 137-138. 

NISHIKAWA V. DULLES, SECRETARY OF STATE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN THIS, THE THIRD OF THE DENATIONALIZATION CASES DECIDED TODAY,
ISSUES CONCERNING SECTION 401(C) OF THE NATIONALITY ACT OF 1940 ARE
PRESENTED.  THAT STATUTE PROVIDES: 

"A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR
NATURALIZATION, SHALL LOSE HIS NATIONALITY BY: 

     *         *   *         *         * 

"(C)  ENTERING, OR SERVING IN, THE ARMED FORCES OF A FOREIGN STATE
UNLESS EXPRESSLY AUTHORIZED BY THE LAWS OF THE UNITED STATES, IF HE HAS
OR ACQUIRES THE NATIONALITY OF SUCH FOREIGN STATE  ...  ."  (FN1) 

WE NEED NOT IN THIS CASE CONSIDER THE CONSTITUTIONALITY OF SECTION
401(C).  THIS CASE THUS DIFFERS FROM PEREZ V. BROWNELL, ANTE, P. 44,
AND TROP V. DULLES, ANTE, P. 86, WHERE QUESTIONS OF THE
CONSTITUTIONALITY OF SECTIONS 401(E) AND 401(G) WERE DETERMINED.  THE
ISSUES WITH WHICH WE ARE CONCERNED HERE RELATE SOLELY TO PROBLEMS OF
BURDEN OF PROOF. 

PETITIONER BROUGHT THIS ACTION IN A DISTRICT COURT PRAYING FOR A
JUDGMENT DECLARING HIM TO BE A CITIZEN OF THE UNITED STATES.  THE
CONTROVERSY AROSE FROM PETITIONER'S APPLICATION TO A UNITED STATES
CONSULATE IN JAPAN FOR AN AMERICAN PASSPORT.  INSTEAD OF THE PASSPORT,
HE RECEIVED MORE THAN A YEAR LATER A CERTIFICATE OF THE LOSS OF THE
NATIONALITY OF THE UNITED STATES.  PETITIONER ALONE TESTIFIED AT THE
TRIAL, THE GOVERNMENT INTRODUCING NO TESTIMONY.  WHAT FOLLOWS IS A
SUMMARY OF HIS TESTIMONY. 

PETITIONER WAS BORN IN ARTESIA, CALIFORNIA, IN 1916.  BY REASON OF
THAT FACT, HE WAS A CITIZEN OF THE UNITED STATES, AND BECAUSE OF THE
CITIZENSHIP OF HIS PARENTS, HE WAS ALSO CONSIDERED BY JAPAN TO BE A
CITIZEN OF THAT COUNTRY.  PETITIONER WAS EDUCATED IN THE SCHOOLS OF
THIS COUNTRY AND LIVED HERE UNTIL 1939.  IN AUGUST OF THAT YEAR, HAVING
BEEN GRADUATED FROM THE UNIVERSITY OF CALIFORNIA WITH A DEGREE IN
ENGINEERING, HE WENT TO JAPAN, INTENDING TO STAY BETWEEN TWO AND FIVE
YEARS, VISITING AND STUDYING.  HE KNEW THAT HIS FATHER HAD REGISTERED
HIM IN THE FAMILY REGISTER IN JAPAN.  IN NOVEMBER OF 1939 PETITIONER'S
FATHER, WHO WAS PAYING HIS WAY, DIED IN THIS COUNTRY AND PETITIONER,
LACKING FUNDS, WENT TO WORK FOR AN AIRCRAFT MANUFACTURING COMPANY IN
JAPAN FOR THE EQUIVALENT OF $15 A MONTH.  HE WAS UNABLE TO ACCUMULATE
ANY SAVINGS.  PURSUANT TO THE MILITARY SERVICE LAW OF JAPAN, PETITIONER
WAS REQUIRED ABOUT JUNE 1940 TO TAKE A PHYSICAL EXAMINATION, AND ON
MARCH 1, 1941, HE WAS INDUCTED INTO THE JAPANESE ARMY.  THE MILITARY
SERVICE LAW PROVIDED FOR IMPRISONMENT FOR EVASION.  BETWEEN THE TIME OF
HIS PHYSICAL EXAMINATION AND HIS INDUCTION, PETITIONER DID NOT PROTEST
HIS INDUCTION OR ATTEMPT TO RENOUNCE HIS JAPANESE NATIONALITY, TO
RETURN TO THE UNITED STATES OR TO SECURE THE AID OF UNITED STATES
CONSULAR OFFICIALS.  HE TESTIFIED THAT HE WAS TOLD BY A FRIEND WHO
WORKED AT THE AMERICAN EMBASSY THAT THE AMERICAN CONSULATE COULD NOT
AID A DUAL NATIONAL; THE GOVERNMENT HAS NOT CONTENDED THAT THIS WAS NOT
SO.  HE FURTHER TESTIFIED THAT HE HAD HEARD RUMORS ABOUT THE BRUTALITY
OF THE JAPANESE SECRET POLICE WHICH MADE HIM AFRAID TO MAKE ANY
PROTEST. 

PETITIONER TESTIFIED THAT HE DID NOT KNOW WHEN HE WENT TO JAPAN THAT
HE WAS LIKELY TO BE DRAFTED.  HE SAID HE WAS NOT AWARE AT THAT TIME OF
ANY THREAT OF WAR BETWEEN THE UNITED STATES AND JAPAN.  HE HAD LEFT THE
UNITED STATES JUST PRIOR TO THE OUTBREAK OF WAR IN EUROPE AND TWO YEARS
AND FOUR MONTHS BEFORE PEARL HARBOR.  HE TESTIFIED THAT HE WAS UNABLE
TO READ THE JAPANESE LANGUAGE AND LIVED TOO FAR OUT IN THE COUNTRY TO
SUBSCRIBE TO AN ENGLISH-LANGUAGE NEWSPAPER, AND THEREFORE DID NOT READ
ANY NEWSPAPERS WHILE IN JAPAN. 

PETITIONER SERVED AS A MAINTENANCE MAN OR MECHANIC IN AN AIR FORCE
REGIMENT IN CHINA, INDO-CHINA, THE PHILIPPINES AND MANCHURIA.  HE
TESTIFIED THAT WHEN WAR BETWEEN THE UNITED STATES AND JAPAN BEGAN, HE
EXPRESSED THE OPINION TO A GROUP OF NONCOMMISSIONED OFFICERS THAT THERE
WAS NO CHANCE OF JAPAN'S WINNING THE WAR.  THAT NIGHT HE WAS GIVEN A
THOROUGH BEATING; HE WAS BEATEN ALMOST EVERY DAY FOR A MONTH, AND
AFTERWARDS HE WAS BEATEN "A COUPLE DAYS A MONTH."  HE WON THE NICKNAME
"AMERICA." 

AFTER HEARING THIS TESTIMONY, THE DISTRICT JUDGE ANNOUNCED FROM THE
BENCH THAT "THE COURT SIMPLY DOES NOT BELIEVE THE TESTIMONY OF THE
WITNESS.  THAT IS ALL.  I SIMPLY DO NOT BELIEVE HIS TESTIMONY."  HE
WENT ON TO EXPRESS HIS OPINION THAT PETITIONER "WENT OVER BECAUSE AS A
JAPANESE CITIZEN UNDER THE LAWS OF JAPAN IT WAS NECESSARY FOR HIM TO
SERVE HIS HITCH IN THE ARMY  ...  .  HE WENT OVER AND HE WAITED UNTIL
THEY REACHED HIM ON THE DRAFT, AND WHEN THEY DID HE WAS DRAFTED." 
FORMALLY, THE COURT FOUND AS A FACT ON THE BASIS OF PETITIONER'S
TESTIMONY ALONE, WHICH DID NOT INCLUDE AN ADMISSION TO THAT EFFECT,
THAT HIS "ENTRY AND SERVICE IN THE JAPANESE ARMED FORCES WAS HIS FREE
AND VOLUNTARY ACT."  THEREFORE HE WAS HELD TO HAVE LOST HIS NATIONALITY
UNDER SECTION 401(C) AND JUDGMENT WAS RENDERED FOR RESPONDENT.  THE
COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED THAT JUDGMENT.  (FN2)
WE GRANTED CERTIORARI.  352 U.S. 907. 

WHATEVER DIVERGENCE OF VIEW THERE MAY BE AS TO WHAT CONDUCT MAY,
CONSISTENT WITH THE CONSTITUTION, BE SAID TO RESULT IN LOSS OF
NATIONALITY, CF. PEREZ V. BROWNELL, ANTE, PP. 44, 62, IT IS SETTLED
THAT NO CONDUCT RESULTS IN EXPATRIATION UNLESS THE CONDUCT IS ENGAGED
IN VOLUNTARILY.  MANDOLI V. ACHESON, 344 U.S. 133.  (FN3)  THE
GOVERNMENT DOES NOT CONTEND OTHERWISE.  LIKEWISE, THE PARTIES ARE
AGREED THAT WHEN A CITIZENSHIP CLAIMANT PROVES HIS BIRTH IN THIS
COUNTRY OR ACQUISITION OF AMERICAN CITIZENSHIP IN SOME OTHER WAY, THE
BURDEN IS UPON THE GOVERNMENT TO PROVE AN ACT THAT SHOWS EXPATRIATION
BY CLEAR, CONVINCING AND UNEQUIVOCAL EVIDENCE.  IN GONZALES V. LANDON,
350 U.S. 920, WE HELD THAT THE RULE AS TO BURDEN OF PROOF IN
DENATURALIZATION CASES (FN4) APPLIED TO EXPATRIATION CASES UNDER
THE SAME RULE SHOULD GOVERN CASES UNDER ALL THE SUBSECTIONS OF SECTION
401. 

THE PARTIES DISAGREE AS TO WHETHER THE GOVERNMENT MUST ALSO PROVE
THAT THE EXPATRIATING ACT WAS VOLUNTARILY PERFORMED OR WHETHER THE
CITIZENSHIP CLAIMANT BEARS THE BURDEN OF PROVING THAT HIS ACT WAS
INVOLUNTARY.  (FN5)  PETITIONER CONTENDS THAT VOLUNTARINESS IS AN
ELEMENT OF THE EXPATRIATING ACT, AND AS SUCH MUST BE PROVED BY THE
GOVERNMENT.  THE GOVERNMENT, ON THE OTHER HAND, RELIES UPON THE
ORDINARY RULE THAT DURESS IS A MATTER OF AFFIRMATIVE DEFENSE AND
CONTENDS THAT THE PARTY CLAIMING THAT HE ACTED INVOLUNTARILY MUST
OVERCOME A PRESUMPTION OF VOLUNTARINESS. 

BECAUSE THE CONSEQUENCES OF DENATIONALIZATION ARE SO DRASTIC
PETITIONER'S CONTENTION AS TO BURDEN OF PROOF OF VOLUNTARINESS SHOULD
BE SUSTAINED.  THIS COURT HAS SAID THAT IN A DENATURALIZATION CASE,
"INSTITUTED  ...  FOR THE PURPOSE OF DEPRIVING ONE OF THE PRECIOUS
RIGHT OF CITIZENSHIP PREVIOUSLY CONFERRED WE BELIEVE THE FACTS AND THE
LAW SHOULD BE CONSTRUED AS FAR AS IS REASONABLY POSSIBLE IN FAVOR OF
THE CITIZEN."  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 122.  (FN6)
THE SAME PRINCIPLE APPLIES TO EXPATRIATION CASES, AND IT CALLS FOR
PLACING UPON THE GOVERNMENT THE BURDEN OF PERSUADING THE TRIER OF FACT
BY CLEAR, CONVINCING AND UNEQUIVOCAL EVIDENCE THAT THE ACT SHOWING
RENUNCIATION OF CITIZENSHIP WAS VOLUNTARILY PERFORMED.  WHILE ONE FINDS
IN THE LEGISLATIVE HISTORY OF SECTION 401, AND PARTICULARLY SECTION
401(C), RECOGNITION OF THE CONCEPT OF VOLUNTARINESS, (FN7) THERE IS NO
DISCUSSION OF THE PROBLEM OF THE BURDEN OF PROOF.  WHAT IS CLEAR IS
THAT THE HOUSE COMMITTEE WHICH CONSIDERED THE BILL REJECTED A PROPOSAL
TO ENACT A CONCLUSIVE PRESUMPTION OF VOLUNTARINESS IN THE CASE OF DUAL
NATIONALS ENTERING OR SERVING IN THE MILITARY FORCES OF THE NATION OF
THEIR SECOND NATIONALITY.  (FN8)  IT IS ALTOGETHER CONSONANT WITH THIS
HISTORY TO PLACE UPON THE GOVERNMENT THE BURDEN OF PROVING
VOLUNTARINESS.  THE COURT HAS SAID THAT "RIGHTS OF CITIZENSHIP ARE NOT
TO BE DESTROYED BY AN AMBIGUITY."  PERKINS V. ELG, 307 U.S. 325, 337. 
THE REFERENCE WAS TO AN AMBIGUITY IN A TREATY, BUT THE PRINCIPLE THERE
STATED DEMANDS ALSO THAT EVIDENTIARY AMBIGUITIES ARE NOT TO BE RESOLVED
AGAINST THE CITIZEN. 

FINALLY, THE GOVERNMENT CONTENDS THAT EVEN IF IT HAS THE BURDEN OF
PROVING VOLUNTARINESS BY CLEAR, CONVINCING AND UNEQUIVOCAL EVIDENCE,
THAT BURDEN HAS BEEN MET IN THIS CASE.  WHAT VIEW THE DISTRICT COURT
TOOK OF THE BURDEN OF PROOF DOES NOT CLEARLY APPEAR.  THE COURT OF
APPEALS SEEMED AT ONE POINT TO ACCEPT THE EVIDENCE IN THE DISTRICT
COURT AS SUFFICIENT EVEN ON THE VIEW OF THE BURDEN OF PROOF AS ABOVE
STATED.  (FN9)  THAT CONCLUSION IS NOT SUPPORTABLE.  OF COURSE, THE
CITIZENSHIP CLAIMANT IS SUBJECT TO THE RULE DICTATED BY COMMON
EXPERIENCE THAT ONE ORDINARILY ACTS VOLUNTARILY.  UNLESS VOLUNTARINESS
IS PUT IN ISSUE, THE GOVERNMENT MAKES ITS CASE SIMPLY BY PROVING THE
OBJECTIVE EXPATRIATING ACT.  BUT HERE PETITIONER SHOWED THAT HE WAS
CONSCRIPTED IN A TOTALITARIAN COUNTRY TO WHOSE CONSCRIPTION LAW, WITH
ITS PENAL SANCTIONS, HE WAS SUBJECT.  THIS ADEQUATELY INJECTED THE
ISSUE OF VOLUNTARINESS AND REQUIRED THE GOVERNMENT TO SUSTAIN ITS
BURDEN OF PROVING VOLUNTARY CONDUCT BY CLEAR, CONVINCING AND
UNEQUIVOCAL EVIDENCE.  (FN10)  THE GOVERNMENT HAS NOT SUSTAINED THAT
BURDEN ON THIS RECORD.  THE FACT THAT PETITIONER MADE NO PROTEST AND
DID NOT SEEK AID OF AMERICAN OFFICIALS - EFFORTS THAT, FOR ALL THAT
APPEARS, WOULD HAVE BEEN IN VAIN - DOES NOT SATISFY THE REQUISITE
STANDARD OF PROOF.  NOR CAN THE DISTRICT JUDGE'S DISBELIEF OF
PETITIONER'S STORY OF HIS MOTIVES AND FEARS FILL THE EVIDENTIARY GAP IN
THE GOVERNMENT'S CASE.  THE GOVERNMENT'S ONLY AFFIRMATIVE EVIDENCE WAS
THAT PETITIONER WENT TO JAPAN AT A TIME WHEN HE WAS SUBJECT TO
CONSCRIPTION. 

ON THIS RECORD THE GOVERNMENT HAS NOT ESTABLISHED THE VOLUNTARY
CONDUCT THAT IS THE ESSENTIAL INGREDIENT OF EXPATRIATION.  THE FACT
THAT THIS PETITIONER, AFTER BEING CONSCRIPTED, WAS ORDERED INTO ACTIVE
SERVICE IN WARTIME ON THE SIDE OF A FORMER ENEMY OF THIS COUNTRY MUST
NOT BE PERMITTED TO DIVERT OUR ATTENTION FROM THE NECESSITY OF
MAINTAINING A STRICT STANDARD OF PROOF IN ALL EXPATRIATION CASES.  WHEN
THE GOVERNMENT CONTENDS THAT THE BASIC RIGHT OF CITIZENSHIP HAS BEEN
LOST, IT ASSUMES AN ONEROUS BURDEN OF PROOF.  REGARDLESS OF WHAT
CONDUCT IS ALLEGED TO RESULT IN EXPATRIATION, WHENEVER THE ISSUE OF
VOLUNTARINESS IS PUT IN ISSUE, THE GOVERNMENT MUST IN EACH CASE PROVE
VOLUNTARY CONDUCT BY CLEAR, CONVINCING AND UNEQUIVOCAL EVIDENCE. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  54 STAT. 1168, 1169.  THE PRESENT PROVISION, IMMIGRATION AND
NATIONALITY ACT OF 1952, SEC. 349(A)(3), 66 STAT. 267, 268, 8 U.S.C.
SEC. 1481(A)(3), ELIMINATES THE NECESSITY THAT THE EXPATRIATE HAVE OR
ACQUIRE THE NATIONALITY OF THE FOREIGN STATE. 

FN2  235 F.2D 135. 

FN3  SEE ALSO, E.G., ACHESON V. MURATA, 342 U.S. 900; ACHESON V.
OKIMURA, 342 U.S. 899; DOS REIS EX REL. CAMARA V. NICOLLS, 161 F.2D
860; 41 OP. ATTY. GEN., NO. 16. 

FN4  BAUMGARTNER V. UNITED STATES, 322 U.S. 665; SCHNEIDERMAN V.
UNITED STATES, 320 U.S. 118. 

FN5  GONZALES V. LANDON, 350 U.S. 920; ACHESON V. MURATA, 342 U.S.
900, AND ACHESON V. OKIMURA, 342 U.S. 899, ARE NOT DISPOSITIVE OF THE
ISSUE.  THE HOLDING IN GONZALES WENT TO THE GOVERNMENT'S BURDEN OF
PROOF IN GENERAL WITHOUT SPECIFIC REGARD TO VOLUNTARINESS.  MURATA AND
OKIMURA CAME HERE ON APPEAL FROM A DISTRICT COURT'S HOLDING THAT
VARIOUS SUBSECTIONS OF SEC. 401 WERE UNCONSTITUTIONAL.  99 F. SUPP.
587, 591.  WE REMANDED FOR SPECIFIC FINDINGS AS TO THE CIRCUMSTANCES
ATTENDING THE ALLEGED ACTS OF EXPATRIATION AND THE REASONABLE
INFERENCES TO BE DRAWN THEREFROM. 

IN BRUNI V. DULLES, 98 U.S. APP. D.C. 358, 235 F.2D 855, THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT CONSIDERED GONZALES AS
REQUIRING THE GOVERNMENT TO PROVE VOLUNTARINESS BY CLEAR, CONVINCING
AND UNEQUIVOCAL EVIDENCE.  LEHMANN V. ACHESON, 206 F.2D 592, CAN ALSO
BE READ AS PLACING THAT BURDEN ON THE GOVERNMENT.  IT IS CLEAR, AT
LEAST, THAT THE THIRD CIRCUIT, LEHMANN V. ACHESON, SUPRA; PERRI V.
DULLES, 206 F.2D 586, AS WELL AS THE SECOND CIRCUIT, AUGELLO V. DULLES,
220 F.2D 344, REGARDS CONSCRIPTION AS CREATING A PRESUMPTION OF
INVOLUNTARINESS WHICH THE GOVERNMENT MUST REBUT.  THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT TOOK A CONTRARY VIEW PRIOR TO
BRUNI V. DULLES, SUPRA.  ALATA V. DULLES, 95 U.S. APP. D.C. 182, 221
F.2D 52; ACHESON V. MAENZA, 92 U.S. APP. D.C. 85, 202 F.2D 453. 

FN6  SEE ALSO UNITED STATES V. MINKER, 350 U.S. 179, 197 (CONCURRING
OPINION):  "WHEN WE DEAL WITH CITIZENSHIP WE TREAD ON SENSITIVE
GROUND." 

FN7  SEE HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON H.R.  6127, SUPERSEDED BY H.R. 9980, 76TH CONG., 1ST
SESS. 150, 201.    FN8  THE PROPOSAL WAS ADVANCED BY THE STATE
DEPARTMENT SPOKESMAN, MR. FLOURNOY, WHO SAID: 

"IF A MAN IS A CITIZEN OF THE UNITED STATES AND JAPAN, BOTH
COUNTRIES, AS HE WOULD BE IN ALL OF THESE CASES WE HAVE BEEN
DISCUSSING, AND HE IS LIVING IN JAPAN, AND HE REACHES THE MILITARY AGE,
AND THEY CALL HIM FOR SERVICE, IT SHOULD NOT MAKE ANY DIFFERENCE FROM
OUR POINT OF VIEW WHETHER HE MAKES A PROTEST OR NOT.  IT IS HIS DUTY TO
SERVE.  HE IS IN THAT COUNTRY, AND HE IS A CITIZEN OF THAT COUNTRY, AND
IF WE ACCEPT HIS PLEA OF DURESS IN THESE CASES IT PRACTICALLY NULLIFIES
THE WHOLE THING, SO WE SHOULD PUT A PROVISO IN READING SOMEWHAT AS
FOLLOWS:  THAT IF AN AMERICAN NATIONAL ALSO HAS THE NATIONALITY OF A
FOREIGN COUNTRY AND IS RESIDING THEREIN AT A TIME WHEN HE REACHES THE
AGE FOR LIABILITY OF MILITARY SERVICE HIS ENTRY INTO THE ARMED FORCES
THEREOF SHALL BE PRESUMED TO BE VOLUNTARY.  IN OTHER WORDS, A PLEA OF
DURESS WOULD NOT MAKE ANY DIFFERENCE.  HE IS A CITIZEN OF THAT COUNTRY,
AND HE IS PRESUMED TO KNOW THAT WHEN THE TIME COMES HE WILL HAVE TO
SERVE."  ID., AT 150. 

SPOKESMEN FOR THE LABOR AND JUSTICE DEPARTMENTS OBJECTED, STATING
THAT DUAL NATIONALS SHOULD HAVE THE OPPORTUNITY TO BE HEARD ON THE
QUESTION OF DURESS.  ID., AT 150-156; 169-170; 200-203.  AT THE TIME OF
THE HEARINGS SEC. 401(C) WAS NOT LIMITED TO DUAL NATIONALS.  THE SENATE
COMMITTEE INSERTED THE LIMITATION.  SEE 86 CONG. REC. 12817. 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT HAS CORRECTLY CONCLUDED
THAT LITTLE SIGNIFICANCE ATTACHES TO THE FAILURE OF THE HOUSE COMMITTEE
TO ACCEPT A SUGGESTION THAT THE WORD "VOLUNTARILY" BE INSERTED IN
SUBSECTIONS (B) THROUGH (G) OF SEC. 401.  HEARINGS, SUPRA, AT 397-398. 
"IT SEEMS TO US THAT THE FAILURE OF THE COMMITTEE TO ACCEPT THIS
AMENDMENT IS OF LITTLE SIGNIFICANCE IN VIEW OF THE LEGISLATIVE HISTORY
...  INDICATING THAT SUCH AMENDMENT WAS UNNECESSARY AND SUPERFLUOUS." 
DOS REIS EX REL. CAMARA V. NICOLLS, 161 F.2D 860, 864, N. 4. 

FN9  235 F.2D, AT 140.  BUT SEE ID., AT 141. 

FN10  PETITIONER'S EVIDENCE OF CONSCRIPTION ALSO DISPELLED THE
PRESUMPTION CREATED BY SEC. 402 OF THE NATIONALITY ACT OF 1940, 54
STAT. 1169, THAT A NATIONAL WHO REMAINS SIX MONTHS OR MORE WITHIN THE
COUNTRY OF WHICH EITHER HE OR HIS PARENTS HAVE BEEN NATIONALS, HAS
EXPATRIATED HIMSELF UNDER SEC. 401(C) OR (D).  EVEN IF VALID, "SECTION
402 DOES NOT ENLARGE SEC. 401(C) OR (D)," KAWAKITA V. UNITED STATES,
343 U.S. 717, 730, AND, LIKE THE ANALOGOUS PROVISION OF SEC. 2 OF THE
ACT OF MARCH 2, 1907, 34 STAT. 1228, IT CREATES "A PRESUMPTION EASY TO
PRECLUDE, AND EASY TO OVERCOME."  UNITED STATES V. GAY, 264 U.S. 353,
358.  THE AMBIGUOUS TERMS OF SEC. 402 HAVE SINCE BEEN SUPERSEDED BY
SEC. 349(B) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT.
268, 8 U.S.C. SEC. 1481(B), WHICH ESTABLISHES A CONCLUSIVE PRESUMPTION
OF VOLUNTARINESS ON THE PART OF A DUAL NATIONAL WHO PERFORMS AN
EXPATRIATING ACT IF HE HAD RESIDED IN THE STATE OF HIS SECOND
NATIONALITY AN AGGREGATE OF TEN YEARS OR MORE IMMEDIATELY PRIOR
THERETO.  OF COURSE, THE NEW STATUTORY PRESUMPTION IS NOT IN ISSUE IN
THIS CASE AND THERE IS NO NEED TO CONSIDER ITS VALIDITY. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS. 

WHILE I CONCUR IN THE OPINION OF THE COURT I ADD THE FOLLOWING TO
STATE WHAT I CONCEIVE TO BE THE CONTROLLING CONSTITUTIONAL PRINCIPLES
IN THIS AND OTHER EXPATRIATION CASES. 

THE FOURTEENTH AMENDMENT DECLARES THAT "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."  NISHIKAWA WAS BORN IN THIS COUNTRY WHILE SUBJECT TO ITS
JURISDICTION; THEREFORE AMERICAN CITIZENSHIP IS HIS CONSTITUTIONAL
BIRTHRIGHT.  SEE UNITED STATES V. WONG KIM ARK, 169 U.S. 649.  WHAT THE
CONSTITUTION HAS CONFERRED NEITHER THE CONGRESS, NOR THE EXECUTIVE, NOR
THE JUDICIARY, NOR ALL THREE IN CONCERT, MAY STRIP AWAY.  ALTHOUGH
CONGRESS CAN ENACT LAWS PUNISHING THOSE WHO SHIRK THEIR DUTIES AS
CITIZENS OR THOSE WHO JEOPARDIZE OUR RELATIONS WITH FOREIGN COUNTRIES
IT CANNOT INVOLUNTARILY EXPATRIATE ANY CITIZEN.  AS THE CHIEF JUSTICE
AND MR. JUSTICE DOUGLAS EXPLAIN IN THEIR DISSENTING OPINIONS IN PEREZ
V. BROWNELL, ANTE, PP. 62, 79, THIS RESULTS NOT ONLY FROM THE
PROVISIONS OF THE FOURTEENTH AMENDMENT BUT FROM THE MANNER IN WHICH THE
GOVERNMENT OF THE UNITED STATES WAS FORMED, THE FUNDAMENTAL POLITICAL
PRINCIPLES WHICH UNDERLIE ITS EXISTENCE, AND ITS CONTINUING
RELATIONSHIP TO THE CITIZENRY WHO ERECTED AND MAINTAIN IT.  CF. OSBORN
V. BANK OF THE UNITED STATES, 9 WHEAT.  738, 827.  IN MY VIEW THE
NOTION THAT CITIZENSHIP CAN BE SNATCHED AWAY WHENEVER SUCH DEPRIVATION
BEARS SOME "RATIONAL NEXUS" TO THE IMPLEMENTATION OF A POWER GRANTED
CONGRESS BY THE CONSTITUTION IS A DANGEROUS AND FRIGHTENING
PROPOSITION.  BY THIS STANDARD A CITIZEN COULD BE TRANSFORMED INTO A
STATELESS OUTCAST FOR EVADING HIS TAXES, FOR FRAUD UPON THE GOVERNMENT,
FOR COUNTERFEITING ITS CURRENCY, FOR VIOLATING ITS VOTING LAWS AND ON
AND ON AD INFINITUM. 

OF COURSE A CITIZEN HAS THE RIGHT TO ABANDON OR RENOUNCE HIS
CITIZENSHIP AND CONGRESS CAN ENACT MEASURES TO REGULATE AND AFFIRM SUCH
ABJURATION.  BUT WHETHER CITIZENSHIP HAS BEEN VOLUNTARILY RELINQUISHED
IS A QUESTION TO BE DETERMINED ON THE FACTS OF EACH CASE AFTER A
JUDICIAL TRIAL IN FULL CONFORMITY WITH THE BILL OF RIGHTS.  ALTHOUGH
CONGRESS MAY PROVIDE RULES OF EVIDENCE FOR SUCH TRIALS, IT CANNOT
DECLARE THAT SUCH EQUIVOCAL ACTS AS SERVICE IN A FOREIGN ARMY,
PARTICIPATION IN A FOREIGN ELECTION OR DESERTION FROM OUR ARMED FORCES,
ESTABLISH A CONCLUSIVE PRESUMPTION OF INTENTION TO THROW OFF AMERICAN
NATIONALITY.  CF. TOT V. UNITED STATES, 319 U.S. 463.  OF COURSE SUCH
CONDUCT MAY BE HIGHLY PERSUASIVE EVIDENCE IN THE PARTICULAR CASE OF A
PURPOSE TO ABANDON CITIZENSHIP. 

TO THE EXTENT THAT MACKENZIE V. HARE, 239 U.S. 299, AND SAVORGNAN V.
UNITED STATES, 338 U.S. 491, APPLIED PRINCIPLES CONTRARY TO THOSE
EXPRESSED IN THIS OPINION I BELIEVE THEY ARE INCONSISTENT WITH THE
CONSTITUTION AND CANNOT BE REGARDED AS BINDING AUTHORITY. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON JOINS, CONCURRING IN
THE RESULT. 

THIS CASE INVOLVES A NATIVE-BORN CITIZEN OF JAPANESE PARENTAGE WHO
HAS BEEN DECLARED TO HAVE LOST HIS CITIZENSHIP BY VIRTUE OF SEC. 401(C)
OF THE NATIONALITY ACT OF 1940, 54 STAT. 1137, 1169, FOR HAVING SERVED
IN THE JAPANESE ARMED FORCES WHILE SUBJECT TO THE LAW OF JAPAN MAKING
FAILURE TO SERVE A CRIME.  THAT IS THE CASE BEFORE THE COURT.  THE
DEFINED ISSUE RAISED BY THIS CASE IS THE ONLY ISSUE, IN MY JUDGMENT,
THAT THE COURT SHOULD DECIDE. 

PETITIONER ASSERTS THAT HIS SERVICE IN THE JAPANESE FORCES WAS
PERFORMED UNDER DURESS.  HIS CLAIM OF DURESS IS BASED ON THE FACT THAT
HE WAS INDUCTED INTO THE JAPANESE ARMED FORCES PURSUANT TO THE
COMPULSORY CONSCRIPTION LAW OF THAT COUNTRY, (FN1) AND THAT RUMORS OF
HARSH PUNISHMENT OF DRAFT EVADERS BY THE SECRET POLICE AND THE
RUTHLESSNESS OF THE GOVERNMENT IN POWER MADE HIM AFRAID TO TAKE ANY
ACTION TO AVOID SERVICE.  THE EVIDENCE TO REBUT THIS TESTIMONY,
ELICITED ON CROSS-EXAMINATION, WAS THAT HE HAD FAILED TO TAKE CERTAIN
ACTIONS TO AVOID SERVICE; THE ONLY AFFIRMATIVE ACT URGED IN SUPPORT OF
THE VOLUNTARINESS OF HIS ENTRY INTO SERVICE IS THAT HE WENT TO JAPAN
WHEN HE WAS OF DRAFT-ELIGIBLE AGE (FN2) AND REMAINED THERE UNTIL
INDUCTED. 

IT IS COMMON GROUND THAT CONDUCT WILL RESULT IN EXPATRIATION ONLY IF
VOLUNTARILY PERFORMED.  SEE MACKENZIE V. HARE, 239 U.S. 299, 311-312;
CF. ACHESON V. OKIMURA, 342 U.S. 899; ACHESON V. MURATA, 342 U.S. 900. 
ACCORDINGLY, WHERE A PERSON WHO HAS BEEN DECLARED EXPATRIATED CONTESTS
THAT DECLARATION ON THE GROUNDS OF DURESS, THE EVIDENCE IN SUPPORT OF
THIS CLAIM MUST BE SYMPATHETICALLY SCRUTINIZED.  THIS IS SO BOTH
BECAUSE OF THE EXTREME GRAVITY OF BEING DENATIONALIZED AND BECAUSE OF
THE SUBTLE, PSYCHOLOGIC FACTORS THAT BEAR ON DURESS. 

THE ISSUE THAT IS ULTIMATELY DECISIVE IN A LITIGATION IS ONE THING,
THE MODE FOR DETERMINING IT QUITE ANOTHER.  THE FACT THAT CONDUCT, IN
ORDER TO RESULT IN LOSS OF CITIZENSHIP, MUST BE VOLUNTARY BEHAVIOR DOES
NOT INHERENTLY DEFINE THE APPROPRIATE MANNER OF ITS PROOF.  THE
GOVERNMENT PROPERLY HAS A VERY HEAVY BURDEN IN EXPATRIATION CASES:  IT
MUST ESTABLISH THAT THE CITIZEN COMMITTED AN "ACT OF EXPATRIATION" -
I.E., ENGAGED IN CONDUCT OF WHICH THE CONSEQUENCE IS LOSS OF
CITIZENSHIP - BY CLEAR, CONVINCING AND UNEQUIVOCAL EVIDENCE.  GONZALES
V. LANDON, 350 U.S. 920, ADOPTING THE STANDARD OF SCHNEIDERMAN V.
UNITED STATES, 320 U.S. 118, AND BAUMGARTNER V. UNITED STATES, 322 U.S.
665.  THIS IS INCUMBENT ON THE GOVERNMENT ALTHOUGH THE EVIDENCE IN
CASES SUCH AS THESE MAY WELL BE DIFFICULT TO OBTAIN.  MUCH MORE
DIFFICULT WOULD IT BE FOR THE GOVERNMENT TO ESTABLISH THE CITIZEN'S
STATE OF MIND AS IT BEARS ON HIS WILL, PURPOSE AND CHOICE OF ACTION -
IN SHORT "VOLUNTARINESS."  ACCORDING TO THE ORDINARILY CONTROLLING
PRINCIPLES OF EVIDENCE, THIS WOULD SUGGEST THAT THE INDIVIDUAL, WHO IS
PECULIARLY EQUIPPED TO CLARIFY AN AMBIGUITY IN THE MEANING OF OUTWARD
EVENTS, SHOULD HAVE THE BURDEN OF PROVING WHAT HIS STATE OF MIND WAS. 
SEE SELMA, ROME & DALTON R. CO. V. UNITED STATES, 139 U.S. 560, 567
568.  MOREOVER, ANY OTHER EVIDENCE OF HIS STATE OF MIND, OUTSIDE OF HIS
OWN MENTAL DISCLOSURES, WILL OFTEN BE FOUND ONLY ABROAD, WHERE THE
GOVERNMENT MAY HAVE NO FACILITIES FOR CONDUCTING THE NECESSARY
INVESTIGATION.  THE COURT SHOULD HESITATE LONG BEFORE IMPOSING ON THE
GOVERNMENT, BY A GENERALIZED, UNCRITICAL FORMULA, A BURDEN SO HEAVY
THAT THE WILL OF CONGRESS BECOMES INCAPABLE OF SENSIBLE, RATIONAL, FAIR
ENFORCEMENT. 

WHERE AN INDIVIDUAL ENGAGES IN CONDUCT BY COMMAND OF A PENAL STATUTE
OF ANOTHER COUNTRY TO WHOSE LAWS HE IS SUBJECT, THE GRAVEST DOUBT IS
CAST ON THE APPLICABILITY OF THE NORMAL ASSUMPTION - EVEN IN A
PROSECUTION FOR MURDER (SEE LELAND V. OREGON, 343 U.S. 790) - THAT WHAT
A PERSON DOES, HE DOES OF HIS OWN FREE WILL.  WHEN A CONSEQUENCE AS
DRASTIC AS DENATIONALIZATION MAY BE THE EFFECT OF SUCH CONDUCT, IT IS
NOT INAPPROPRIATE THAT THE GOVERNMENT SHOULD BE CHARGED WITH PROVING
THAT THE CITIZEN'S CONDUCT WAS A RESPONSE, NOT TO THE COMMAND OF THE
STATUTE, BUT TO HIS OWN DIRECTION.  THE READY PROVABILITY OF THE
CRITICAL FACT - EXISTENCE OF AN APPLICABLE LAW, PARTICULARLY A CRIMINAL
LAW, COMMANDING THE ACT IN QUESTION - PROVIDES PROTECTION AGAINST
SHIFTING THIS BURDEN TO THE GOVERNMENT ON THE BASIS OF A FRIVOLOUS
ASSERTION OF THE DEFENSE OF DURESS.  ACCORDINGLY, THE GOVERNMENT
SHOULD, UNDER THE CIRCUMSTANCES OF THIS CASE, HAVE THE BURDEN OF
PROVING BY CLEAR, CONVINCING AND UNEQUIVOCAL EVIDENCE THAT THE CITIZEN
VOLUNTARILY PERFORMED AN ACT CAUSING EXPATRIATION. 

SINCE THE COURTS BELOW WERE NOT GUIDED BY THIS FORMULATION, THE
JUDGMENT SHOULD NOT BE ALLOWED TO STAND.  HOWEVER, THE GOVERNMENT
SHOULD NOT BE DENIED A FURTHER OPPORTUNITY TO BRING FORWARD THE
NECESSARY PROOF IF IT IS ABLE TO DO SO.  WHETHER, IN OTHER CLASSES OF
CASES IN WHICH THE DEFENSE OF DURESS IS ASSERTED, THE GOVERNMENT SHOULD
HAVE THE BURDEN OF PROVING ITS ABSENCE IS A QUESTION THE COURT NEED NOT
- AND, THEREFORE, SHOULD NOT - REACH.  FOR THAT REASON, I CONCUR IN THE
RESULT ANNOUNCED BUT CANNOT JOIN THE OPINION OF THE COURT. 

FN1  ACCORDING TO A STIPULATION OF THE PARTIES IN THE RECORD, THE
MILITARY SERVICE LAW OF JAPAN PROVIDED PUNISHMENT OF UP TO THREE YEARS
OF PENAL SERVITUDE FOR PERSONS EVADING MILITARY SERVICE. 

FN2  THERE DOES NOT SEEM TO BE ANY EXPLICIT BASIS IN THE RECORD FOR
THE TRIAL COURT'S FINDING (FINDING OF FACT NO. III) THAT PETITIONER
MADE THE TRIP TO JAPAN "KNOWING AT THAT TIME THAT HE WAS LIKELY TO BE
CALLED FOR MILITARY SERVICE IN THE JAPANESE ARMED FORCES." 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

THE CENTRAL QUESTION IN THIS CASE IS SIMPLY WHETHER NISHIKAWA'S
SERVICE IN THE JAPANESE ARMY CAN BE SAID TO BE "VOLUNTARY" WHEN THE
RECORD CONTAINS VIRTUALLY NOTHING MORE IN THE WAY OF PROOF THAN THAT HE
WENT TO JAPAN FROM THIS COUNTRY IN 1939 AND WAS INDUCTED INTO THE ARMY
PURSUANT TO A CONSCRIPTION LAW OF JAPAN WITHOUT ANY PROTEST ON HIS
PART. 

BEYOND ESTABLISHING THAT HE WAS DRAFTED WITHOUT PROTEST, NISHIKAWA'S
TESTIMONY SHOULD BE DISREGARDED, FOR THE DISTRICT COURT EXPRESSLY
STATED THAT IT DISBELIEVED HIS EXPLANATIONS AS TO WHY HE HAD NOT SOUGHT
THE AID OF AMERICAN AUTHORITIES IN JAPAN OR OTHERWISE ATTEMPTED TO
PROTEST OR PREVENT HIS INDUCTION, AND THE COURT OF APPEALS HAS
AFFIRMED.  PARTICULARLY WHEN CREDIBILITY IS IN ISSUE WE SHOULD NOT SET
OURSELVES AGAINST THE FACTUAL DETERMINATIONS OF THE TRIAL COURT, WHICH
HAD THE GREAT ADVANTAGE OF HEARING AND OBSERVING NISHIKAWA ON THE
WITNESS STAND. 

THE COURTS OF APPEALS HAVE DIVIDED ON THE QUESTION WHETHER PROOF OF
CONSCRIPTION, IN THE ABSENCE OF ANYTHING MORE ON EITHER SIDE, PRECLUDES
A FINDING THAT SERVICE IN A FOREIGN ARMY WAS VOLUNTARY.  THE SECOND AND
THIRD CIRCUITS HAVE HELD THAT IT DOES.  AUGELLO V. DULLES, 220 F.2D
344; LEHMANN V. ACHESON, 206 F.2D 592; PERRI V. DULLES, 206 F.2D 586. 
THE DISTRICT OF COLUMBIA CIRCUIT HAS RULED THAT "DURESS CANNOT BE
INFERRED FROM THE MERE FACT OF CONSCRIPTION."  ACHESON V. MAENZA, 92
U.S. APP. D.C. 85, 90, 202 F.2D 453, 458; ALATA V. DULLES, 95 U.S. APP.
D.C. 182, 221 F.2D 52; BUT SEE BRUNI V. DULLES, 98 U.S. APP.  D.C. 358,
235 F.2D 855.  (FN1) 

MOVED BY THE CONSIDERATION THAT A CONTRARY RULE WOULD LEAD TO THE
"DRASTIC" CONSEQUENCE OF DENATIONALIZATION, THE COURT HOLDS THAT (1)
THE FACT THAT NISHIKAWA WAS CONSCRIPTED INTO THE JAPANESE ARMY
PRECLUDED THE DISTRICT COURT FROM FINDING THAT HIS SERVICE WAS
VOLUNTARY, IN THE ABSENCE OF THE GOVERNMENT'S SHOWING SOMETHING MORE
THAN THAT HE FAILED TO TAKE ANY STEPS TO PREVENT OR PROTEST HIS
INDUCTION; AND (2) THE GOVERNMENT HAS THE BURDEN OF PROVING
VOLUNTARINESS IN ALL DENATIONALIZATION CASES ONCE THE ISSUE OF DURESS
HAS BEEN "INJECTED" INTO THE CASE.  I TOO AM NOT INSENSITIVE TO THE
HIGH VALUE OF AMERICAN CITIZENSHIP, BUT FIND MYSELF COMPELLED TO
DISSENT BECAUSE IN MY OPINION THE MAJORITY'S POSITION CAN BE SQUARED
NEITHER WITH CONGRESSIONAL INTENT NOR WITH PROPER AND WELL-ESTABLISHED
RULES GOVERNING THE BURDEN OF PROOF ON THE ISSUE OF DURESS. 
                            I. 

TO PERMIT CONSCRIPTION WITHOUT MORE TO ESTABLISH DURESS UNJUSTIFIABLY
LIMITS, IF IT DOES NOT LARGELY NULLIFY, THE MANDATE OF SEC. 401(C).  BY
EXEMPTING FROM THE REACH OF THE STATUTE ALL THOSE SERVING IN FOREIGN
ARMIES AS TO WHOM NO MORE HAS BEEN SHOWN THAN THEIR CONSCRIPTION, THE
COURT IS ATTRIBUTING TO CONGRESS THE INTENTION TO PERMIT MANY AMERICANS
WHO SERVED IN SUCH ARMIES TO DO SO WITH IMPUNITY.  THERE IS NO SOLID
BASIS FOR SUCH A RESTRICTIVE INTERPRETATION.  BY THE TIME THE
NATIONALITY ACT OF 1940 WAS PASSED, CONSCRIPTION AND NOT VOLUNTARY
ENLISTMENT HAD BECOME THE USUAL METHOD OF RAISING ARMIES THROUGHOUT THE
WORLD, AND IT CAN HARDLY BE DOUBTED THAT CONGRESS WAS AWARE OF THIS
FACT.  IN VIEW OF THIS BACKGROUND IT IS FARFETCHED TO ASSUME THAT
CONGRESS INTENDED THE RESULT REACHED BY THE COURT, A RESULT PLAINLY
INCONSISTENT WITH THE EVEN-HANDED ADMINISTRATION OF SEC. 401(C). 
MOREOVER, THE VERY TERMS OF THE SECTION, WHICH REFER TO BOTH "ENTERING"
AND "SERVING IN" FOREIGN ARMED FORCES, ARE AT ODDS WITH SUCH AN
INTENTION. 

II. 

ALTHOUGH THE COURT RECOGNIZES THE GENERAL RULE THAT CONSCIOUSLY
PERFORMED ACTS ARE PRESUMED VOLUNTARY, SEE 3 WIGMORE, EVIDENCE (3D
ED.), SEC. 860; FED. RULES CIV. PROC., 8(C), IT IN FACT ALTERS THIS
RULE IN ALL DENATIONALIZATION CASES BY PLACING THE BURDEN OF PROVING
VOLUNTARINESS ON THE GOVERNMENT, THUS RELIEVING CITIZEN-CLAIMANTS IN
SUCH CASES FROM THE DUTY OF PROVING THAT THEIR PRESUMABLY VOLUNTARY
ACTS WERE ACTUALLY INVOLUNTARY.  (FN2) 

ONE OF THE PRIME REASONS FOR IMPOSING THE BURDEN OF PROOF ON THE
PARTY CLAIMING INVOLUNTARINESS IS THAT THE EVIDENCE NORMALLY LIES IN
HIS POSSESSION.  THIS REASON IS STRIKINGLY APPLICABLE TO CASES OF THE
KIND BEFORE US, FOR EVIDENCE THAT AN INDIVIDUAL INVOLUNTARILY SERVED IN
A FOREIGN ARMY IS PECULIARLY WITHIN HIS GRASP, AND RARELY ACCESSIBLE TO
THE GOVERNMENT.  NISHIKAWA'S CASE AMPLY ILLUSTRATES THE PROPOSITION. 
IN THE EIGHT MONTHS THAT PASSED BETWEEN HIS NOTICE TO REPORT FOR A
PHYSICAL EXAMINATION AND HIS ACTUAL INDUCTION NISHIKAWA COULD HAVE
TAKEN A VARIETY OF STEPS DESIGNED TO PREVENT HIS CONSCRIPTION, ANY OF
WHICH WOULD HAVE BEEN PERSUASIVE EVIDENCE OF THE INVOLUNTARY CHARACTER
OF HIS SERVICE.  FOR EXAMPLE, HE COULD HAVE SOUGHT TO RETURN TO THE
UNITED STATES, TO RENOUNCE HIS JAPANESE NATIONALITY, TO ADVISE JAPANESE
OFFICIALS THAT HE WAS AN AMERICAN CITIZEN, TO ENLIST THE ASSISTANCE OF
AMERICAN CONSULAR OFFICIALS IN JAPAN, OR TO EMPLOY THE AID OF FRIENDS
OR RELATIVES IN THE UNITED STATES.  (FN3)  NISHIKAWA ADMITS THAT HE DID
NONE OF THESE THINGS.  BUT IF HE CLAIMED THAT HE HAD, IS IT NOT
APPARENT THAT HE AND NOT THE GOVERNMENT IS THE LOGICAL PARTY TO BRING
FORWARD THE PERTINENT EVIDENCE?  IN SUCH CIRCUMSTANCES IT SEEMS TO ME
THE BETTER COURSE TO REQUIRE NISHIKAWA TO PROVE HIS ALLEGATION OF
DURESS RATHER THAN TO IMPOSE ON THE GOVERNMENT THE WELL-NIGH IMPOSSIBLE
TASK OF PRODUCING EVIDENCE TO REFUTE SUCH A CLAIM. 

FOR BOTH OF THE REASONS SET FORTH ABOVE I THINK THAT THE FINDING OF
THE DISTRICT COURT THAT NISHIKAWA SERVED IN THE JAPANESE ARMY WITHOUT
DURESS SHOULD NOT BE DISTURBED. 

IN CONSIDERING SEC. 401(C), WE OUGHT NOT TO LOSE SIGHT OF THE FACT
THAT IT DEALS SOLELY WITH DUAL NATIONALS, REMITTING THEM TO THE
CITIZENSHIP OF THE COUNTRY WHICH THEY SERVED IN TIME OF WAR.  UNLIKE
THE MAJORITY, I DO NOT BELIEVE THAT THIS CONSEQUENCE IS INCOMMENSURATE
WITH PETITIONER'S CONDUCT.  IT SEEMS TO ME THAT THERE IS A LARGE
MEASURE OF JUSTICE IN RELEGATING NISHIKAWA SOLELY TO HIS JAPANESE
CITIZENSHIP, FOR IT IS WITH THE ARMED FORCES OF JAPAN THAT HE SERVED
FOR MORE THAN FOUR YEARS DURING THE HEART OF THE LATE WORLD WAR. 
NISHIKAWA'S SERVICE INCLUDED PARTICIPATION IN MILITARY ACTION AGAINST
THE UNITED STATES IN THE PHILIPPINES.  THERE IS NO SUGGESTION THAT AT
ANY TIME DURING THIS PERIOD HE EVER PERFORMED ANY ACT INDICATING
DISLOYALTY TO JAPAN OR LOYALTY TO THE UNITED STATES. 

THE COURT REMANDS THE CASE PRESUMABLY TO GIVE THE GOVERNMENT THE
OPPORTUNITY TO SHOW THAT NISHIKAWA'S SERVICE WITH THE JAPANSES ARMY WAS
VOLUNTARY.  SURELY THIS IS BUT AN EMPTY GESTURE.  THE GOVERNMENT CAN
HARDLY BE EXPECTED TO ADDUCE PROOF AS TO OCCURRENCES TAKING PLACE IN
JAPAN MORE THAN 17 YEARS AGO WHICH ARE NOW SHROUDED IN OBSCURITY BEYOND
SERIOUS HOPE OF DETECTION. 

NISHIKAWA'S CONSTITUTIONAL CONTENTION THAT CONGRESS LACKED POWER TO
ENACT SEC. 401(C) IS, IN MY VIEW, FORECLOSED BY PEREZ V. BROWNELL,
ANTE, P. 44, DECIDED THIS DAY. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  SEE ALSO HAMAMOTO V. ACHESON, 98 F. SUPP. 904.  COMPARE ACHESON
V. OKIMURA, 342 U.S. 899; ACHESON V. MURATA, 342 U.S. 900, AND THE
DISSENTING OPINION IN MANDOLI V. ACHESON, 344 U.S. 133, 139.  AS WE
READ GONZALES V. LANDON, 350 U.S. 920, CITED IN THE MAJORITY OPINION,
THAT CASE RELATED SIMPLY TO THE STANDARD, AND NOT TO THE BURDEN, OF
PROOF IN DENATIONALIZATION CASES. 

FN2  THE COURT NOT ONLY REACHES A CONCLUSION INCONSISTENT WITH THE
USUAL RULES GOVERNING BURDEN OF PROOF, BUT DOES SO IN THE FACE OF SEC.
402 OF THE NATIONALITY ACT, WHICH PROVIDES IN PART: 

"A NATIONAL OF THE UNITED STATES WHO WAS BORN IN THE UNITED STATES
...  SHALL BE PRESUMED TO HAVE EXPATRIATED HIMSELF UNDER SUBSECTION (C)
OR (D) OF SECTION 401, WHEN HE SHALL REMAIN FOR SIX MONTHS OR LONGER
WITHIN ANY FOREIGN STATE OF WHICH HE OR EITHER OF HIS PARENTS SHALL
HAVE BEEN A NATIONAL ACCORDING TO THE LAWS OF SUCH FOREIGN STATE  ...
AND SUCH PRESUMPTION SHALL EXIST UNTIL OVERCOME WHETHER OR NOT THE
INDIVIDUAL HAS RETURNED TO THE UNITED STATES."  54 STAT. 1137, 1169. 

NISHIKAWA WAS IN JAPAN FOR 10 MONTHS BEFORE HE EVEN RECEIVED NOTICE
TO REPORT FOR PHYSICAL EXAMINATION IN THE DRAFT.  HE WAS INDUCTED OVER
18 MONTHS AFTER HIS ARRIVAL IN JAPAN.  THIS COURT HELD IN KAWAKITA V.
UNITED STATES, 343 U.S. 717, 730:  "SECTION 402 DOES NOT ENLARGE SEC.
401(C) OR (D); IT CREATES A REBUTTABLE PRESUMPTION OF EXPATRIATION; AND
WHEN IT IS SHOWN THAT THE CITIZEN DID NO ACT WHICH BROUGHT HIM UNDER
SEC. 401(C) OR (D), THE PRESUMPTION IS OVERCOME." 

FN3  IT IS OF COURSE QUITE IRRELEVANT THAT ANY STEPS TAKEN BY
NISHIKAWA TO FORESTALL HIS INDUCTION MAY HAVE BEEN IN VAIN.  WHETHER
SUCCESSFUL OR NOT, THEY WOULD CERTAINLY HAVE REFLECTED HIS
UNWILLINGNESS TO SERVE IN THE ARMY OF JAPAN. 
..END :


















BROWN V. UNITED STATES 356 U.S. 148 


NO. 43.  ARGUED APRIL 4, 1957 - RESTORED TO THE CALENDAR FOR REARGUMENT
JUNE 10, 1957 - REARGUED OCTOBER 22, 1957 - DECIDED MARCH 31, 1958 -
234 F.2D 140, AFFIRMED. 


IN THE GOVERNMENT'S CIVIL SUIT IN A FEDERAL DISTRICT COURT FOR
PETITIONER'S DENATURALIZATION ON THE GROUND THAT SHE HAD FRAUDULENTLY
PROCURED CITIZENSHIP BY SWEARING FALSELY THAT SHE WAS NOT, AND HAD NOT
BEEN, A MEMBER OF OR AFFILIATED WITH THE COMMUNIST PARTY, SHE
VOLUNTARILY TOOK THE STAND AND TESTIFIED AT LENGTH IN HER OWN DEFENSE. 
THEREAFTER, DURING CROSS-EXAMINATION, SHE REFUSED, ON GROUNDS OF SELF
INCRIMINATION, TO ANSWER QUESTIONS WHICH WERE RELEVANT TO HER TESTIMONY
ON DIRECT EXAMINATION.  THE DISTRICT COURT RULED THAT SHE HAD WAIVED
HER PRIVILEGE BY TESTIFYING IN HER OWN DEFENSE AND ORDERED HER TO
ANSWER; BUT SHE PERSISTED IN HER REFUSAL TO DO SO.  FOR THIS, SHE WAS
SUMMARILY ADJUDGED GUILTY OF CRIMINAL CONTEMPT AND SENTENCED TO
IMPRISONMENT.  HELD:  THE CONVICTION IS SUSTAINED.  PP. 149-157. 

(A)  THERE CAN BE NO DOUBT THAT STUBBORN DISOBEDIENCE OF THE DUTY TO
ANSWER RELEVANT INQUIRIES IN A JUDICIAL PROCEEDING BRINGS INTO FORCE
THE POWER OF THE FEDERAL COURTS TO PUNISH FOR CONTEMPT.  EX PARTE
HUDGINGS, 249 U.S. 378, AND IN RE MICHAEL, 326 U.S. 224,
DISTINGUISHED.  PP. 153-154. 

(B)  BY TAKING THE STAND AND TESTIFYING IN HER OWN BEHALF, PETITIONER
WAIVED THE RIGHT TO INVOKE ON CROSS-EXAMINATION HER PRIVILEGE AGAINST
SELF-INCRIMINATION REGARDING MATTERS MADE RELEVANT BY HER DIRECT
EXAMINATION.  PP. 154-156. 

(C)  THE RECORD DOES NOT FAIRLY SUPPORT PETITIONER'S CLAIM THAT THE
DISTRICT COURT FOUND A WAIVER SIMPLY IN THE ACT OF TAKING THE STAND AND
MISLED HER AS TO THE ACTUAL LEGAL QUESTION INVOLVED.  PP. 156-157. 

BROWN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING OF SUMMARY DISPOSITION, UNDER RULE 42(A) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE, (FN1) OF A FINDING OF CRIMINAL
CONTEMPT COMMITTED IN THE ACTUAL PRESENCE OF THE COURT, THE POWER TO
PUNISH WHICH IS GIVEN BY 18 U.S.C. SEC. 401.  (FN2)  THE PROCEEDING
GREW OUT OF A SUIT FOR DENATURALIZATION BROUGHT AGAINST PETITIONER
PURSUANT TO SEC. 340(A) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952,
66 STAT. 260, AS AMENDED, 8 U.S.C. (SUPP. IV) SEC. 1451(A).  THE
COMPLAINT IN THE DENATURALIZATION SUIT CHARGED THAT PETITIONER HAD
FRAUDULENTLY PROCURED CITIZENSHIP IN 1946 BY FALSELY SWEARING THAT SHE
WAS ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION, AND THAT SHE WAS
NOT AND HAD NOT BEEN FOR TEN YEARS PRECEDING OPPOSED TO ORGANIZED
GOVERNMENT OR A MEMBER OF OR AFFILIATED WITH THE COMMUNIST PARTY OR ANY
ORGANIZATION TEACHING OPPOSITION TO ORGANIZED GOVERNMENT, WHEREAS IN
FACT PETITIONER HAD BEEN, FROM 1933 TO 1937, A MEMBER OF THE COMMUNIST
PARTY AND THE YOUNG COMMUNIST LEAGUE, BOTH ORGANIZATIONS ADVOCATING THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE. 

AT THE TRIAL IN THE DENATURALIZATION PROCEEDING, PETITIONER WAS
CALLED AS AN ADVERSE WITNESS BY THE GOVERNMENT UNDER RULE 43(B) OF THE
FEDERAL RULES OF CIVIL PROCEDURE.  PETITIONER ADMITTED THAT SHE HAD
ONCE BEEN A MEMBER OF THE YOUNG COMMUNIST LEAGUE, BUT DENIED THAT SHE
HAD BELONGED TO THE COMMUNIST PARTY IN THE PERIOD BEFORE 1946.  SHE
REFUSED TO ANSWER QUESTIONS ABOUT ACTIVITIES AND ASSOCIATIONS THAT WERE
UNLIMITED IN TIME OR DIRECTED TO THE PERIOD AFTER 1946 ON THE GROUND
THAT HER ANSWERS MIGHT TEND TO INCRIMINATE HER, AND THE DISTRICT COURT
SUSTAINED THE CLAIM OF PRIVILEGE.  AT THE CLOSE OF THE GOVERNMENT'S
EXAMINATION, PETITIONER'S COUNSEL STATED THAT, "I WON'T CROSS-EXAMINE
THE WITNESS AT THIS POINT.  I WILL PUT HER ON ON DIRECT."  (FN3) 

THEREAFTER PETITIONER TOOK THE STAND AS A WITNESS IN HER OWN BEHALF. 
SHE COMPREHENSIVELY REAFFIRMED THE TRUTH OF THE STATEMENTS MADE AT THE
TIME OF HER NATURALIZATION, AND, ALTHOUGH SHE ADMITTED MEMBERSHIP IN
THE YOUNG COMMUNIST LEAGUE FROM ABOUT 1930, CLAIMED THAT SHE HAD
RESIGNED IN 1935 AND HAD NOT ENGAGED IN ANY COMMUNIST ACTIVITIES FROM
1935 UNTIL HER NATURALIZATION IN 1946.  NOT CONTENT TO REST THERE,
PETITIONER WENT ON TO TESTIFY THAT SHE HAD NEVER TAUGHT OR ADVOCATED
THE OVERTHROW OF THE EXISTING GOVERNMENT OR BELONGED TO ANY
ORGANIZATION THAT DO SO ADVOCATE, THAT SHE BELIEVED IN FIGHTING FOR
THIS COUNTRY AND WOULD TAKE UP ARMS IN ITS DEFENSE IN EVENT OF
HOSTILITIES WITH SOVIET RUSSIA, AND THAT SHE WAS ATTACHED TO THE
PRINCIPLES OF THE CONSTITUTION AND THE GOOD ORDER AND HAPPINESS OF THE
UNITED STATES.  (FN4)  THIS TESTIMONY WAS DIRECTED TO PETITIONER'S
PRESENT DISPOSITION TOWARDS THE UNITED STATES, AND WAS NOT LIMITED TO
THE PERIOD BEFORE 1946. 

ON CROSS-EXAMINATION THE GOVERNMENT IMMEDIATELY PUT TO PETITIONER THE
QUESTION, "ARE YOU NOW OR HAVE YOU EVER BEEN A MEMBER OF THE COMMUNIST
PARTY OF THE UNITED STATES?"  IT ALSO ASKED NUMEROUS OTHER QUESTIONS
RELATING TO COMMUNIST ACTIVITIES SINCE 1946 THAT PETITIONER HAD
SUCCESSFULLY REFUSED TO ANSWER WHEN FIRST EXAMINED.  PETITIONER AGAIN
REFUSED TO ANSWER, CLAIMING THE PRIVILEGE AGAINST SELF-INCRIMINATION. 
THE DISTRICT COURT RULED THAT BY TAKING THE STAND IN HER OWN DEFENSE
PETITIONER HAD ABANDONED THE PRIVILEGE, AND DIRECTED HER TO ANSWER. 
HOWEVER, PETITIONER PERSISTED IN HER REFUSAL TO ANSWER ANY QUESTIONS
DIRECTED TOWARDS ESTABLISHING THAT SHE HAD BEEN A COMMUNIST SINCE
1946.  FOR THIS SHE WAS CAST IN CONTEMPT OF COURT AND SENTENCED TO
IMPRISONMENT FOR SIX MONTHS.  THE JUDGMENT OF CONVICTION WAS AFFIRMED
BY THE COURT OF APPEALS.  234 F.2D 140.  DEEMING THE RECORD TO RAISE
IMPORTANT QUESTIONS REGARDING THE SCOPE OF THE PRIVILEGE AGAINST SELF
INCRIMINATION AND THE POWER OF A FEDERAL COURT TO MAKE SUMMARY
DISPOSITION OF A CHARGE OF CRIMINAL CONTEMPT, WE BROUGHT THE CASE
HERE.  352 U.S. 908.  ARGUMENT WAS HAD IN THE 1956 TERM AND THE CASE
SET DOWN FOR REARGUMENT IN THE PRESENT TERM.  354 U.S. 907. 

THE CONDUCT FOR WHICH PETITIONER WAS FOUND GUILTY OF CONTEMPT WAS HER
SUSTAINED DISOBEDIENCE OF THE COURT'S DIRECTION TO ANSWER PERTINENT
QUESTIONS ON CROSS-EXAMINATION AFTER HER CLAIM OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION HAD BEEN OVERRULED.  ON THE FIRST ARGUMENT IN THIS
COURT, PETITIONER STOOD ON THE VALIDITY OF HER CLAIM OF PRIVILEGE AS
THE ESSENTIAL GROUND FOR REVERSAL HERE OF THE JUDGMENT OF THE COURT OF
APPEALS.  IT WAS TAKEN FOR GRANTED BY PETITIONER NO LESS THAN BY THE
GOVERNMENT THAT FOR A PARTY INSISTENTLY TO BLOCK RELEVANT INQUIRY ON
CROSS-EXAMINATION SUBJECTS HIM TO PUNISHMENT FOR CONTEMPT IN THE
EXERCISE OF THE POWER VESTED IN THE FEDERAL COURTS THROUGHOUT OUR
HISTORY.  ACT OF SEPT. 24, 1789, SEC.  17, 1 STAT. 83; ACT OF MAR. 2,
1831, 4 STAT. 487-488; R.S. SEC. 725; JUDICIAL CODE, 1911, SEC. 268, 36
STAT. 1163; 18 U.S.C. SEC. 401. 

ON REARGUMENT, BOTH SIDES, RESPONSIVE TO A SUGGESTION FROM THE BENCH,
DISCUSSED THE RELEVANCE OF EX PARTE HUDGINGS, 249 U.S. 378, TO THE
PRESENT SITUATION.  THAT CASE, FOLLOWED IN IN RE MICHAEL, 326 U.S. 224,
HELD THAT FOR PERJURY ALONE A WITNESS MAY NOT BE SUMMARILY PUNISHED FOR
CONTEMPT.  THE ESSENCE OF THE HOLDING IN THOSE CASES WAS THAT PERJURY
IS A SPECIFICALLY DEFINED OFFENSE, SUBJECT TO PROSECUTION UNDER ALL THE
SAFEGUARDS OF THE FIFTH AND SIXTH AMENDMENTS, AND THAT THE TRUTH OR
FALSITY OF A WITNESS' TESTIMONY OUGHT NOT TO BE LEFT TO A JUDGE'S
UNAIDED DETERMINATION IN THE MIDST OF TRIAL.  PERJURY IS ONE THING;
TESTIMONIAL RECALCITRANCE ANOTHER.  HE WHO OFFERS HIMSELF AS A WITNESS
IS NOT FREED FROM THE DUTY TO TESTIFY.  THE COURT (EXCEPT INSOFAR AS IT
IS CONSTITUTIONALLY LIMITED), NOT A VOLUNTARY WITNESS, DEFINES THE
TESTIMONIAL DUTY.  SEE JUDGE LEARNED HAND IN UNITED STATES V. APPEL,
211 F. 495. 

SUCH HAS BEEN THE UNQUESTIONED LAW IN THE FEDERAL JUDICIAL SYSTEM
TIME OUT OF MIND.  IT HAS BEEN ACTED UPON IN THE LOWER COURTS AND THIS
COURT.  WHATEVER DIFFERENCES THE POTENTIALLY DRASTIC POWER OF COURTS TO
PUNISH FOR CONTEMPT MAY HAVE EVOKED, A DOUBT HAS NEVER BEEN UTTERED
THAT STUBBORN DISOBEDIENCE OF THE DUTY TO ANSWER RELEVANT INQUIRIES IN
A JUDICIAL PROCEEDING BRINGS INTO FORCE THE POWER OF THE FEDERAL COURTS
TO PUNISH FOR CONTEMPT.  TRIAL COURTS NO DOUBT MUST BE ON GUARD AGAINST
CONFUSING OFFENSES TO THEIR SENSIBILITIES WITH OBSTRUCTION TO THE
ADMINISTRATION OF JUSTICE.  IT IS NO LESS IMPORTANT FOR THIS COURT TO
USE SELF-RESTRAINT IN THE EXERCISE OF ITS ULTIMATE POWER TO FIND THAT A
TRIAL COURT HAS GONE BEYOND THE AREA IN WHICH IT CAN PROPERLY PUNISH
FOR CONTEMPT.  WE ARE NOT JUSTIFIED IN SLIDING FROM MERE DISAGREEMENT
WITH THE WAY IN WHICH A TRIAL COURT HAS DEALT WITH A PARTICULAR MATTER,
SUCH AS PETITIONER'S CONDUCT IN THE PRESENT CASE, INTO A CONDEMNATION
OF THE COURT'S ACTION AS AN ABUSE OF DISCRETION. 

WE THUS REACH THE CONSTITUTIONAL ISSUE. 

PETITIONER CONTENDS THAT BY TAKING THE STAND AND TESTIFYING IN HER
OWN BEHALF SHE DID NOT FOREGO THE RIGHT TO INVOKE ON CROSS-EXAMINATION
THE PRIVILEGE AGAINST SELF-INCRIMINATION REGARDING MATTERS MADE
RELEVANT BY HER DIRECT EXAMINATION.  SHE RELIES ON DECISIONS HOLDING
THAT WITNESSES IN CIVIL PROCEEDINGS AND BEFORE CONGRESSIONAL COMMITTEES
DO NOT WAIVE THE PRIVILEGE BY DENIALS AND PARTIAL DISCLOSURES, BUT ONLY
BY TESTIMONY THAT ITSELF INCRIMINATES.  MORE PARTICULARLY, PETITIONER'S
RELIANCE IS ON ARNDSTEIN V. MCCARTHY, 254 U.S. 71; MCCARTHY V.
ARNDSTEIN, 262 U.S. 355, 266 U.S. 34.   IN THAT LITIGATION A WITNESS
CALLED BEFORE SPECIAL COMMISSIONERS IN BANKRUPTCY PROCEEDINGS FILED
SCHEDULES OF HIS ASSETS AND LIABILITIES AND MADE CERTAIN DISCLOSURES IN
RESPECT TO HIS FINANCIAL CONDITION, BUT REFUSED TO ANSWER NUMEROUS
QUESTIONS ON THE GROUND THAT TO DO SO MIGHT INCRIMINATE HIM.  THIS
COURT HELD THAT THE WITNESS' REFUSAL DID NOT CONSTITUTE CONTEMPT; THAT
SINCE THE EVIDENCE FURNISHED "DID NOT AMOUNT TO AN ADMISSION OF GUILT
OR FURNISH CLEAR PROOF OF CRIME  ...  ," THE PRIVILEGE HAD NOT BEEN
ABANDONED AND THE WITNESS WAS ENTITLED TO "STOP SHORT" WHEN FURTHER
TESTIMONY "MIGHT TEND TO INCRIMINATE HIM."  254 U.S., AT 72; 262 U.S.,
AT 358.  THE TESTIMONY OF PETITIONER IN THE PRESENT CASE ADMITTEDLY DID
NOT AMOUNT TO "AN ADMISSION OF GUILT OR FURNISH CLEAR PROOF OF CRIME,"
BUT WAS, ON THE CONTRARY, A DENIAL OF ANY ACTIVITIES THAT MIGHT PROVIDE
A BASIS FOR PROSECUTION. 

OUR PROBLEM IS ILLUMINED BY THE SITUATION OF A DEFENDANT IN A
CRIMINAL CASE.  IF HE TAKES THE STAND AND TESTIFIES IN HIS OWN DEFENSE,
HIS CREDIBILITY MAY BE IMPEACHED AND HIS TESTIMONY ASSAILED LIKE THAT
OF ANY OTHER WITNESS, AND THE BREADTH OF HIS WAIVER IS DETERMINED BY
THE SCOPE OF RELEVANT CROSS-EXAMINATION.  "HE HAS NO RIGHT TO SET FORTH
TO THE JURY ALL THE FACTS WHICH TEND IN HIS FAVOR WITHOUT LAYING
HIMSELF OPEN TO A CROSS-EXAMINATION UPON THOSE FACTS."  FITZPATRICK V.
UNITED STATES, 178 U.S. 304, 315; AND SEE REAGAN V. UNITED STATES, 157
U.S. 301, 304-305.  THE REASONING OF THESE CASES APPLIES TO A WITNESS
IN ANY PROCEEDING WHO VOLUNTARILY TAKES THE STAND AND OFFERS TESTIMONY
IN HIS OWN BEHALF.  IT IS REASONING THAT CONTROLS THE RESULT IN THE
CASE BEFORE US. 

A WITNESS WHO IS COMPELLED TO TESTIFY, AS IN THE ARNDSTEIN TYPE OF
CASE, HAS NO OCCASION TO INVOKE THE PRIVILEGE AGAINST SELF
INCRIMINATION UNTIL TESTIMONY SOUGHT TO BE ELICITED WILL IN FACT TEND
TO INCRIMINATE.  IT WOULD INDEED BE IRRELEVANT FOR HIM TO DO SO.  IF HE
IS TO HAVE THE BENEFIT OF THE PRIVILEGE AT ALL, AND NOT BE CONFRONTED
WITH THE ARGUMENT THAT HE HAS WAIVED A RIGHT EVEN BEFORE HE COULD HAVE
INVOKED IT, HE MUST BE ABLE TO RAISE A BAR AT THE POINT IN HIS
TESTIMONY WHEN HIS IMMUNITY BECOMES OPERATIVE.  A WITNESS THUS
PERMITTED TO WITHDRAW FROM THE CROSS-FIRE OF INTERROGATION BEFORE THE
RELIABILITY OF HIS TESTIMONY HAS BEEN FULLY TESTED MAY ON OCCASION HAVE
SUCCEEDED IN PUTTING BEFORE THE TRIER OF FACT A ONE-SIDED ACCOUNT OF
THE MATTERS IN DISPUTE.  THIS IS AN ARGUMENTATIVE CURTAILMENT OF THE
NORMAL RIGHT OF CROSS-EXAMINATION OUT OF REGARD FOR THE FAIR CLAIMS OF
THE CONSTITUTIONAL PROTECTION AGAINST COMPULSORY SELF-INCRIMINATION. 

ON THE OTHER HAND, WHEN A WITNESS VOLUNTARILY TESTIFIES, THE
PRIVILEGE AGAINST SELF-INCRIMINATION IS AMPLY RESPECTED WITHOUT NEED OF
ACCEPTING TESTIMONY FREED FROM THE ANTISEPTIC TEST OF THE ADVERSARY
PROCESS.  THE WITNESS HIMSELF, CERTAINLY IF HE IS A PARTY, DETERMINES
THE AREA OF DISCLOSURE AND THEREFORE OF INQUIRY.  SUCH A WITNESS HAS
THE CHOICE, AFTER WEIGHING THE ADVANTAGE OF THE PRIVILEGE AGAINST SELF
INCRIMINATION AGAINST THE ADVANTAGE OF PUTTING FORWARD HIS VERSION OF
THE FACTS AND HIS RELIABILITY AS A WITNESS, NOT TO TESTIFY AT ALL.  HE
CANNOT REASONABLY CLAIM THAT THE FIFTH AMENDMENT GIVES HIM NOT ONLY
THIS CHOICE BUT, IF HE ELECTS TO TESTIFY, AN IMMUNITY FROM CROSS
EXAMINATION ON THE MATTERS HE HAS HIMSELF PUT IN DISPUTE.  IT WOULD
MAKE OF THE FIFTH AMENDMENT NOT ONLY A HUMANE SAFEGUARD AGAINST
JUDICIALLY COERCED SELF-DISCLOSURE BUT A POSITIVE INVITATION TO
MUTILATE THE TRUTH A PARTY OFFERS TO TELL.  "THERE IS HARDLY
JUSTIFICATION FOR LETTING THE DEFENDANT AFFIRMATIVELY RESORT TO
PERJURIOUS TESTIMONY IN RELIANCE ON THE GOVERNMENT'S DISABILITY TO
CHALLENGE HIS CREDIBILITY."  WALDER V. UNITED STATES, 347 U.S. 62, 65. 
THE INTERESTS OF THE OTHER PARTY AND REGARD FOR THE FUNCTION OF COURTS
OF JUSTICE TO ASCERTAIN THE TRUTH BECOME RELEVANT, AND PREVAIL IN THE
BALANCE OF CONSIDERATIONS DETERMINING THE SCOPE AND LIMITS OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  (FN5)  PETITIONER, AS A PARTY TO
THE SUIT, WAS A VOLUNTARY WITNESS.  SHE COULD NOT TAKE THE STAND TO
TESTIFY IN HER OWN BEHALF AND ALSO CLAIM THE RIGHT TO BE FREE FROM
CROSS-EXAMINATION ON MATTERS RAISED BY HER OWN TESTIMONY ON DIRECT
EXAMINATION. 

PETITIONER CLAIMS THAT THE DISTRICT COURT FOUND THAT SHE HAD WAIVED
THE PRIVILEGE MERELY BY TAKING THE STAND, WHEREAS THE COURT OF APPEALS
AFFIRMED HER CONVICTION ON THE GROUND THAT SHE HAD TAKEN THE STAND AND
TESTIFIED AS SHE DID.  PETITIONER ARGUES FROM THIS DISTINCTION THAT HER
CONVICTION HAS BEEN AFFIRMED ON A CHARGE NOT MADE IN THE DISTRICT
COURT.  SHE ALSO SUGGESTS THAT THE REASON GIVEN BY THE DISTRICT COURT
FOR FINDING A WAIVER MISLED HER AS TO THE ACTUAL LEGAL QUESTION
INVOLVED, AND THAT BUT FOR THE ASSERTIONS OF THE COURT SHE MIGHT HAVE
WITHDRAWN HER OPPOSITION TO THE CROSS-EXAMINATION AND ANSWERED THE
QUESTIONS PUT BY THE GOVERNMENT. 

THE RECORD DOES NOT FAIRLY SUPPORT THE STATEMENT THAT THE DISTRICT
COURT FOUND A WAIVER SIMPLY IN THE ACT OF TAKING THE STAND.  AFTER
PETITIONER HAD TESTIFIED ON DIRECT EXAMINATION, THE COURT RULED THAT
"THE DEFENDANT HAVING TAKEN THE STAND IN HER OWN DEFENSE, HAS WAIVED
THE RIGHT TO INVOKE THE FIFTH AMENDMENT  ...  ."  IN VIEW OF THE
CIRCUMSTANCES SURROUNDING THIS RULING AND THE TESTIMONY THAT PRECEDED
IT, IT IS REASONABLY CLEAR THAT THE COURT MEANT TO CONVEY BY "HAVING
TAKEN THE STAND IN HER OWN DEFENSE" WHAT SHE SAID ON THE STAND, NOT
MERELY THAT SHE PHYSICALLY TOOK THE STAND.  AS THE DISTRICT COURT
EXPRESSLY STATED IN ITS OPINION FINDING PETITIONER IN CONTEMPT, IT HAD
CAUTIONED HER THAT "SHE HAD WAIVED THE RIGHT TO CLAIM ANY PRIVILEGES
UNDER THE FIFTH AMENDMENT, BY REASON OF HAVING TESTIFIED AS A WITNESS
IN HER OWN BEHALF."  THE REASON FOR ABANDONMENT OF THE PRIVILEGE, AS
THUS EXPRESSED BY THE COURT, IS WHOLLY CONSISTENT WITH THE REASON GIVEN
BY THE COURT OF APPEALS IN AFFIRMING THE CONVICTION, AND WITH OUR
GROUND FOR UPHOLDING THE JUDGMENT OF THE COURT OF APPEALS.  NICE
QUESTIONS IN INTERPRETING THE RECORD TO ASCERTAIN WHETHER A TRIAL COURT
HAS DISCHARGED ITS DUTY OF APPROPRIATELY FRAMING THE LEGAL ISSUES IN A
LITIGATION, OR AT LEAST NOT MISFRAMING THEM TO THE DETRIMENTAL RELIANCE
OF ONE OF THE PARTIES, ARE NOT HERE PRESENTED.  TAKEN IN CONTEXT, THE
RULING OF THE DISTRICT COURT CONVEYED A CORRECT STATEMENT OF THE LAW,
AND ADEQUATELY INFORMED PETITIONER THAT BY HER DIRECT TESTIMONY SHE HAD
OPENED HERSELF TO CROSS-EXAMINATION ON THE MATTERS RELEVANTLY RAISED BY
THAT TESTIMONY.  THE JUDGMENT IS AFFIRMED. 

FN1  "A CRIMINAL CONTEMPT MAY BE PUNISHED SUMMARILY IF THE JUDGE
CERTIFIES THAT HE SAW OR HEARD THE CONDUCT CONSTITUTING THE CONTEMPT
AND THAT IT WAS COMMITTED IN THE ACTUAL PRESENCE OF THE COURT.   THE
ORDER OF CONTEMPT SHALL RECITE THE FACTS AND SHALL BE SIGNED BY THE
JUDGE AND ENTERED OF RECORD." 

FN2  "A COURT OF THE UNITED STATES SHALL HAVE POWER TO PUNISH BY FINE
OR IMPRISONMENT, AT ITS DISCRETION, SUCH CONTEMPT OF ITS AUTHORITY, AND
NONE OTHER, AS: 

"(1)  MISBEHAVIOR OF ANY PERSON IN ITS PRESENCE OR SO NEAR THERETO AS
TO OBSTRUCT THE ADMINISTRATION OF JUSTICE. 

"(2)  MISBEHAVIOR OF ANY OF ITS OFFICERS IN THEIR OFFICIAL
TRANSACTIONS. 

"(3)  DISOBEDIENCE OR RESISTANCE TO ITS LAWFUL WRIT, PROCESS, ORDER,
RULE, DECREE, OR COMMAND." 

FN3  COUNSEL FOR PETITIONER IN THIS COURT DID NOT REPRESENT HER IN
THE TRIAL COURT. 

FN4  "Q.  ARE YOU WILLING TO TAKE UP ARMS IN DEFENSE OF THIS COUNTRY,
IN THE EVENT OF ANY HOSTILITY BETWEEN THE UNITED STATES AND RUSSIA? 

"A.  YES. 

"Q.  REGARDLESS OF WHATEVER THE REASON MAY BE FOR ANY HOSTILITY
BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE GOVERNMENT OF
RUSSIA? 

"A.  THAT IS CORRECT. 

"Q.  IN QUESTION 28 YOU WERE ASKED:  'ARE YOU A BELIEVER IN ANARCHY,
OR THE UNLAWFUL DAMAGE, INJURY OR DESTRUCTION OF PROPERTY, OR OF
SABOTAGE'?  AND YOU ANSWERED 'NO.' 

"WAS THAT A TRUE ANSWER TO THAT QUESTION? 

"A.  THAT WAS A TRUE ANSWER. 

"Q.  YOU SAY IT WAS NOT ONLY A TRUE ANSWER AT THE TIME YOU FILED THE
PETITION, JULY 16, 1946, AND IS THAT THE TRUE ANSWER TODAY? 

"A.  IT IS TRUE.  IT WAS A PERFECTLY TRUE ANSWER TO THAT QUESTION.  I
NEVER BELIEVED IN OVERTHROWING ANYTHING.  I BELIEVE IN FIGHTING FOR
THIS COUNTRY.  I LIKE THIS COUNTRY.  I NEVER TOLD ANYBODY I DIDN'T. 

"Q.  DID YOU EVER TEACH OR ADVOCATE ANARCHY OR OVERTHROW OF THE
EXISTING GOVERNMENT IN THIS COUNTRY? 

"A.  TEACH? 

"Q.  DID YOU EVER TEACH THE IDEA THAT WE OUGHT TO OVERTHROW THE
GOVERNMENT OF THE UNITED STATES? 

"A.  NO, I NEVER DID. 

"Q.  DID YOU EVER ADVOCATE THAT? 

"A.  NO. 

"Q.  DID YOU EVER SAY THAT WE SHOULD? 

"A.  NO, I NEVER DID. 

"Q.  TO YOUR KNOWLEDGE, DID YOU EVER BELONG TO ANY ORGANIZATION THAT
TAUGHT OR ADVOCATED ANARCHY OR THE OVERTHROW OF THE EXISTING GOVERNMENT
OF THIS COUNTRY? 

"A.  NO. AS MUCH AS I KNOW, I DIDN'T BELONG, TO DESTROY THE COUNTRY. 
I BELIEVE IN HELPING THE COUNTRY, AND HELPING THE PEOPLE.  THAT WAS MY
LIFE OF LIVING, NOT DESTROYING THE THINGS THAT THE PEOPLE PUT UP. 

"Q.  ARE YOU ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE
UNITED STATES, AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE
UNITED STATES? 

"A.  THAT, I AM. 

"Q.  WHAT DO YOU UNDERSTAND BY THAT?  WHAT DO YOU UNDERSTAND BY THOSE
WORDS 'ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION'? 

"A.  THE WAY I UNDERSTAND THIS, WHEN MY COUNTRY NEEDS ME, I FIGHT FOR
IT AND DO WHAT IS RIGHT AMONG THE PEOPLE." 

FN5  STRIKING THE WITNESS' TESTIMONY, OR RELYING ON THE TRIER OF FACT
TO TAKE INTO ACCOUNT THE OBVIOUS UNFAIRNESS OF ALLOWING THE WITNESS TO
ESCAPE CROSS-EXAMINATION, MUST OFTEN IN PRACTICE BE POOR SUBSTITUTES
FOR A POSITIVE SHOWING UNDER SEARCHING CROSS-EXAMINATION THAT THE
TESTIMONY IS IN FACT FALSE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

THIS IS ANOTHER DECISION BY THIS COURT ERODING THE CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION.  SEE, E.G., FELDMAN V. UNITED
STATES, 322 U.S. 487; ROGERS V. UNITED STATES, 340 U.S. 367. 

THE QUESTIONS WHICH PETITIONER REFUSED TO ANSWER UNDOUBTEDLY CALLED
FOR RESPONSES WHICH MIGHT HAVE TENDED TO INCRIMINATE HER. 
NEVERTHELESS, THE COURT HOLDS THAT SHE CAN BE IMPRISONED FOR CONTEMPT
ON THE GROUND THAT A DEFENDANT IN A CIVIL ACTION WHO VOLUNTARILY TAKES
THE STAND TO TESTIFY WAIVES HIS PRIVILEGE AGAINST SELF-INCRIMINATION TO
THE EXTENT OF RELEVANT CROSS-EXAMINATION.  THUS IN SUBSTANCE THE
MAJORITY HAS EXTENDED THE RULE HERETOFORE APPLIED IN CRIMINAL
PROSECUTIONS TO CIVIL PROCEEDINGS.   I THINK THIS FURTHER ENCROACHMENT
ON THE PRIVILEGE IS UNWARRANTED.  I WOULD REVERSE THE PETITIONER'S
CONVICTION ON THE BASIS OF THE GENERAL RULE STATED IN ARNDSTEIN V.
MCCARTHY, 254 U.S. 71, 262 U.S. 355, 266 U.S. 34, THAT A WITNESS IN A
CIVIL CASE DOES NOT FORFEIT THE RIGHT TO CLAIM HIS PRIVILEGE UNLESS HE
MAKES DISCLOSURES WHICH AMOUNT TO "AN ACTUAL ADMISSION OF GUILT OR
INCRIMINATING FACTS."  262 U.S., AT 359.*  PETITIONER CONCEDEDLY MADE
NO SUCH DISCLOSURES. 

*AS I CONSTRUE THE HOLDING IN ARNDSTEIN V. MCCARTHY, IT IS BASED ON
THE SIMPLE GROUND THAT ONCE A WITNESS HAS INCRIMINATED HIMSELF
SUBSEQUENT INQUIRIES CONCERNING THE SAME OFFENSE CANNOT HARM HIM ANY
FURTHER AND THE REASON FOR THE PRIVILEGE DISAPPEARS.  BUT CF.  ROGERS
V. UNITED STATES, 340 U.S. 367. 

IN MY JUDGMENT THE RULE OF WAIVER NOW APPLIED IN CRIMINAL CASES,
ALTHOUGH LONG ACCEPTED, IS ITSELF DEBATABLE AND SHOULD NOT BE CARRIED
OVER TO ANY NEW AREA ABSENT THE MOST COMPELLING JUSTIFICATION.  BY
LIKENING THE POSITION OF A DEFENDANT WHO VOLUNTARILY TAKES THE STAND IN
A CIVIL CASE TO THAT OF AN ACCUSED TESTIFYING ON HIS OWN BEHALF IN A
CRIMINAL PROSECUTION THE MAJORITY UNFORTUNATELY FAILS TO GIVE DUE
CONSIDERATION TO MATERIAL DIFFERENCES BETWEEN THE TWO SITUATIONS.  FOR
EXAMPLE FAILURE OF A CRIMINAL DEFENDANT TO TAKE THE STAND MAY NOT BE
MADE THE SUBJECT OF ADVERSE COMMENT BY PROSECUTOR OR JUDGE, NOR MAY IT
LAWFULLY SUPPORT AN INFERENCE OF GUILT.  18 U.S.C. SEC. 3481; WILSON V.
UNITED STATES, 149 U.S. 60.  ON THE OTHER HAND THE FAILURE OF A PARTY
IN A CIVIL ACTION TO TESTIFY MAY BE FREELY COMMENTED ON BY HIS
ADVERSARY AND THE TRIER OF FACT MAY DRAW SUCH INFERENCES FROM THE
ABSTENTION AS HE SEES FIT ON THE ISSUES IN THE CASE.  BILOKUMSKY V.
TOD, 263 U.S. 149, 153-154.  THUS TO APPLY THE CRIMINAL RULE OF WAIVER
TO A CIVIL PROCEEDING MAY PLACE A DEFENDANT IN A SUBSTANTIAL DILEMMA. 
IF HE TESTIFIES VOLUNTARILY HE CAN BE COMPELLED TO GIVE INCRIMINATING
EVIDENCE AGAINST HIMSELF; BUT, UNLIKE A DEFENDANT IN A CRIMINAL CASE,
IF HE REMAINS OFF THE STAND HIS SILENCE CAN BE USED AGAINST HIM AS
"EVIDENCE OF THE MOST PERSUASIVE CHARACTER."  BILOKUMSKY V. TOD, SUPRA,
AT 154. 

THE COURT BRUSHES ASIDE THIS DILEMMA BY ASSUMING THAT A CIVIL
DEFENDANT CAN CONTROL THE SCOPE OF HIS WAIVER WHEN HE VOLUNTARILY TAKES
THE STAND BECAUSE HE "DETERMINES THE AREA OF DISCLOSURE AND THERFORE OF
INQUIRY."  I DO NOT BELIEVE THIS ASSUMPTION IS CORRECT.  WHILE IT IS
TRUE THAT A PARTY CAN DETERMINE THE AREA OF HIS OWN DISCLOSURES ON
DIRECT EXAMINATION, THE SCOPE OF PERMISSIBLE CROSS-EXAMINATION IS NOT
RESTRICTED TO THE MATTERS RAISED ON DIRECT BUT MAY INCLUDE OTHER AND
QUITE DIFFERENT MATTERS IF THEY WILL AID THE COURT OR JURY TO APPRAISE
THE CREDIBILITY OF THE WITNESS AND THE PROBATIVE VALUE OF HIS
TESTIMONY.  SUCH QUESTIONS, WHICH MAY RANGE OVER A BROAD AREA AND REFER
TO MATTERS COLLATERAL TO THE MAIN ISSUES, CANNOT BE FORECLOSED BY THE
WITNESS AND OFTEN CANNOT EVEN BE ANTICIPATED BY HIM.  SEE, E.G., RADIO
CAB, INC., V. HOUSER, 76 U.S. APP. D.C. 35, 128 F.2D 604; ATKINSON V.
ATCHISON, TOPEKA & SANTA FE R. CO., 197 F.2D 244.  SEE ALSO POWERS V.
UNITED STATES, 223 U.S. 303, 314-316. 

FURTHERMORE A PARTY TO A CIVIL ACTION, UNLIKE THE DEFENDANT IN A
CRIMINAL CASE, MAY BE COMPELLED BY HIS ADVERSARY TO TAKE THE STAND AND
THUS FORCED INTO A SITUATION (AS ILLUSTRATED BY THIS CASE) WHERE HE
MUST CLAIM THE PRIVILEGE OR INCRIMINATE HIMSELF.  BY CLAIMING HIS
PRIVILEGE HE MAY WELL PREJUDICE HIS CASE FOR REASONS WHOLLY UNRELATED
TO ITS MERITS.  IN ORDER TO MITIGATE THIS DAMAGE HE MAY FEEL GREAT
COMPULSION, EITHER ON CROSS-EXAMINATION BY HIS OWN COUNSEL OR BY TAKING
THE STAND LATER ON HIS OWN BEHALF, TO DISPEL SOME OF THE IMPRESSION
CREATED BY THE CLAIM OF PRIVILEGE.  BUT THIS CANNOT DO UNDER THE
COURT'S HOLDING WITHOUT THEREBY FORFEITING HIS CONSTITUTIONAL
PRIVILEGE. 

THE REASON OFFERED BY THE COURT FOR COMPELLING A CIVIL DEFENDANT TO
INCRIMINATE HIMSELF OR BE IMPRISONED FOR CONTEMPT IS THAT TO DO
OTHERWISE WOULD BE TO ACCEPT TESTIMONY UNTESTED BY CROSS-EXAMINATION
AND THUS EXTEND "A POSITIVE INVITATION TO MUTILATE THE TRUTH A PARTY
OFFERS TO TELL."  IF PUNISHMENT FOR CONTEMPT WERE THE ONLY METHOD OF
PROTECTING THE OTHER PARTY AND THE TRIER FROM A ONE-SIDED, DISTORTED
VERSION OF THE TRUTH THE SUBSTANTIAL ENCROACHMENT MADE BY THE MAJORITY
ON THE PRIVILEGE AGAINST SELF-INCRIMINATION MIGHT BE SOMEWHAT MORE
TOLERABLE.  BUT IT IS NOT.  FOR EXAMPLE, AS AN OBVIOUS ALTERNATIVE,
SUCH ONE-SIDED TESTIMONY MIGHT BE STRUCK IN FULL OR PART, IF THE
OCCASION WARRANTED, WITH APPROPRIATE DIRECTIONS BY THE JUDGE FOR THE
JURY TO DISREGARD IT AS UNRELIABLE.  AND IN SOME INSTANCES WHERE THE
PREJUDICE TO THE OPPOSING PARTY WAS EXTREME AND IRREMEDIABLE THE COURT
MIGHT EVEN ENTER JUDGMENT IN HIS FAVOR.  SEE HAMMOND PACKING CO. V.
ARKANSAS, 212 U.S. 322, 349-354.  COMPARE NATIONAL UNION OF MARINE
COOKS V. ARNOLD, 348 U.S. 37.  BY SUCH MEANS THE TRIAL JUDGE COULD
PROTECT THE RIGHT OF THE OPPOSING PARTY TO A FAIR TRIAL.  AT THE SAME
TIME THE WITNESS WOULD NOT BE TREATED AS HAVING WAIVED HIS PRIVILEGE SO
THAT HE COULD BE PUNISHED BY FINE OR IMPRISONMENT FOR REFUSING TO
INCRIMINATE HIMSELF. 

SINCE I BELIEVE THAT PETITIONER'S CONVICTION SHOULD BE REVERSED FOR
THE REASONS STATED ABOVE, I FIND IT UNNECESSARY TO DISCUSS WHETHER SHE
WAS ENTITLED TO A TRIAL WITH ALL THE SAFEGUARDS OF THE BILL OF RIGHTS
BEFORE SHE COULD BE PUNISHED FOR THE CRIME OF CONTEMPT.  MY VIEWS IN
THAT RESPECT ARE SET FORTH IN SOME DETAIL IN MY DISSENTING OPINIONS IN
SACHER V. UNITED STATES, 343 U.S. 1, 14, AND GREEN V. UNITED STATES,
POST, P. 193. 

MR. JUSTICE BRENNAN, DISSENTING. 

I WOULD REVERSE THIS JUDGMENT.  THE DISTRICT COURTS DO NOT HAVE THE
UNTRAMMELED DISCRETION TO PUNISH EVERY CONTEMPTUOUS ACT AS A CRIMINAL
CONTEMPT.  THAT IS THE BASIC TEACHING OF SUCH DECISIONS AS EX PARTE
HUDGINGS, 249 U.S. 378, AND IN RE MICHAEL, 326 U.S. 224.  IT WILL NOT
BE GAINSAID THAT DANGER OF ABUSE OF THIS EXTRAORDINARY POWER INHERES IN
THE ABSENCE OF THE SAFEGUARDS USUALLY SURROUNDING CRIMINAL
PROSECUTIONS, NOTABLY TRIAL BY JURY AND ANY BUT SELF-IMPOSED JUDICIAL
RESTRAINTS UPON THE EXTENT OF PUNISHMENT.  THAT DANGER OF ABUSE HAS
REQUIRED THIS COURT CLOSELY TO SCRUTINIZE THESE CASES TO GUARD AGAINST
EXCEEDING THE BOUNDS OF DISCRETION IN THE USE OF THE POWER.  WE DO SO
IN THE EXERCISE OF OUR GENERAL SUPERVISORY AUTHORITY OVER THE
ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL COURTS, MCNABB V.
UNITED STATES, 318 U.S. 332, 340, BUT PRIMARILY BECAUSE OF THE
"IMPORTANCE OF ASSURING ALERT SELF-RESTRAINT IN THE EXERCISE BY
DISTRICT JUDGES OF THE SUMMARY POWER."  OFFUTT V. UNITED STATES, 348
U.S. 11, 13. 

WITH THAT PRINCIPLE IN MIND, I CANNOT CONCLUDE THAT IT WAS PROPER TO
CONVICT PETITIONER OF CRIMINAL CONTEMPT.  HER CONTEMPT CONSISTED IN
REFUSING TO ANSWER QUESTIONS PUT TO HER ON CROSS-EXAMINATION BECAUSE
SHE BELIEVED THAT THE FIFTH AMENDMENT AFFORDED HER A PRIVILEGE TO MAKE
SUCH REFUSALS.  THE MAJORITY CONCEDES THAT THE REASON GIVEN TO THE
PETITIONER BY THE TRIAL JUDGE TO PROVE HER WAIVER WAS AN INCORRECT ONE
BUT CONCLUDES THAT "TAKEN IN CONTEXT  ...  IT CONVEYED A CORRECT
STATEMENT OF THE LAW  ...  ."  THE FACT REMAINS THAT THE TRIAL JUDGE'S
RULING ON WAIVER WAS INCORRECT.  HE ADVISED MRS. BROWN THAT SHE HAD
WAIVED HER PRIVILEGE BY THE SIMPLE ACT OF TAKING THE STAND.  BUT THE
RULE THAT THE PRIVILEGE IS WAIVED BY TAKING THE STAND DEVELOPED IN
CRIMINAL CASES AS AN HISTORICAL COROLLARY OF THE FACT THAT THE ACCUSED
COULD NOT EVEN BE CALLED OR SWORN AS A WITNESS.   8 WIGMORE, EVIDENCE
(3D ED. 1940), SEC. 2268.  IT HAS NO APPLICATION IN CIVIL CASES.  IN
CIVIL CASES THE MOST THAT CAN BE SAID IS THAT A PARTY WITNESS SUBJECTS
HIMSELF TO CROSS-EXAMINATION AS TO ALL MATTERS TESTIFIED TO ON DIRECT. 

THE TRIAL JUDGE MADE HIS FINAL RULING ON THE QUESTION OF WAIVER ON
THE MORNING OF FEBRUARY 18, 1955.  HE REPEATED HIS STATEMENT THAT MRS.
BROWN HAD WAIVED HER PRIVILEGE BY TAKING THE STAND.*  THE PETITIONER,
BELIEVING THAT HER CONDUCT WAS PRIVILEGED, CONTINUED TO REFUSE TO
ANSWER.  NO FURTHER EVIDENCE WAS OFFERED AFTER THE PETITIONER'S REFUSAL
TO ANSWER THE QUESTIONS PUT TO HER ON CROSS-EXAMINATION BY THE
GOVERNMENT.  ON THAT SAME AFTERNOON THE TRIAL JUDGE DELIVERED HIS
OPINION FINDING "BY CLEAR, UNEQUIVOCAL AND CONVINCING EVIDENCE, THAT
THE DEFENDANT DID PROCURE HER CITIZENSHIP ILLEGALLY AND FRAUDULENTLY." 
HE THEN PROCEEDED TO HOLD THE PETITIONER IN CONTEMPT FOR HER REFUSAL TO
ANSWER.  IT IS TRUE THAT AT THIS TIME HE ADVISED THE PETITIONER THAT
SHE HAD WAIVED HER PRIVILEGE BY THE TESTIMONY WHICH SHE HAD GIVEN BUT
IT WAS OF LITTLE HELP COMING AT THE SAME TIME AS THE SENTENCE.    *"THE
COURT.  THE COURT HOLDS THAT THE DEFENDANT HAVING TAKEN THE STAND IN
HER OWN DEFENSE, HAS WAIVED THE RIGHT TO INVOKE THE FIFTH AMENDMENT,
AND I WILL PERMIT THE WITNESS TO ANSWER THE QUESTION. 

     *         *         *         *         * 

"THE COURT.  THE COURT HAS JUST RULED THAT YOU HAVING TAKEN THE STAND
IN THIS CASE IN YOUR OWN DEFENSE, BY SO DOING YOU HAVE WAIVED THE RIGHT
TO INVOKE THE FIFTH AMENDMENT.  AND I HAVE JUST INFORMED YOUR COUNSEL,
AND YOU, THAT YOU MUST ANSWER THE QUESTION.  NOW, IF YOU DO NOT ANSWER
THE QUESTION, THE COURT WILL HOLD YOU IN CONTEMPT OF COURT."    IN
THESE CIRCUMSTANCES, I CAN HARDLY BELIEVE THAT PETITIONER WAS GUILTY OF
SUCH CONTEMPT OF THE AUTHORITY OF THE COURT AS TO MERIT SIX MONTHS'
IMPRISONMENT.  THE MOST THAT CAN BE SAID OF HER CONDUCT WAS THAT HER
LAWYER COULD NOT PREDICT THAT "TAKEN IN CONTEXT" THE APPELLATE COURTS
WOULD SUSTAIN THE TRIAL JUDGE'S TECHNICALLY INCORRECT RULING ON
WAIVER. 

THIS COURT HAS RECOGNIZED THAT THE CRIMINAL-CONTEMPT POWER SHOULD BE
LIMITED IN ITS EXERCISE TO "THE LEAST POSSIBLE POWER ADEQUATE TO THE
END PROPOSED," IN RE MICHAEL, SUPRA, AT 227.  THE "END PROPOSED," IT
SHOULD BE CLEAR, IS NOT TO IMPOSE VENGEANCE FOR AN INSULT TO THE COURT
WHOSE DECREE HAS BEEN FLOUTED, BUT TO AID THE FAIR AND ORDERLY
ADMINISTRATION OF JUSTICE BY DETERRING NONCOMPLIANCE WITH THE COURT'S
LAWFUL ORDER.  BUT I THINK THAT IN CONTEMPTS, AS IN OTHER AREAS OF THE
LAW, PENAL SANCTIONS SHOULD BE USED SPARINGLY AND ONLY WHERE COERCIVE
DEVICES LESS HARSH IN THEIR EFFECT WOULD BE UNAVAILING.  IN OTHER
WORDS, THERE IS A DUTY ON THE PART OF THE DISTRICT JUDGES NOT TO
EXERCISE THE CRIMINAL-CONTEMPT POWER WITHOUT FIRST HAVING CONSIDERED
THE FEASIBILITY OF THE ALTERNATIVES AT HAND.  MR. JUSTICE BLACK
PERSUASIVELY DEMONSTRATES IN HIS DISSENTING OPINION THAT THE TRIAL
JUDGE HERE MIGHT REASONABLY HAVE RESORTED TO SEVERAL CORRECTIVE DEVICES
TO AVOID BOTH PREJUDICE TO THE GOVERNMENT'S CASE AND UNNECESSARY DELAY
IN THE CONDUCT OF THE TRIAL.  CF. RUBENSTEIN V. KLEVEN, 150 F. SUPP.
47; FED. RULES CIV. PROC., 37(B).  IN ADDITION, IT APPEARS THAT
ORDINARY EXERCISE OF THE CIVIL-CONTEMPT POWER, CF. YATES V. UNITED
STATES, 355 U.S. 66, NOT EVEN CONSIDERED SO FAR AS THIS RECORD SHOWS,
MIGHT HAVE SUCCEEDED IN ACHIEVING ALL THE ENDS OF JUSTICE WITHOUT
REQUIRING RESORT TO THE FAR MORE DRASTIC CRIMINAL SANCTION. 

THE COURT DOES NOT GROUND THE AFFIRMANCE UPON ANY FINDING THAT MRS.
BROWN'S CONDUCT WAS ACTUALLY DISRESPECTFUL OF THE TRIAL JUDGE OR THAT
SHE OBSTINATELY FLOUTED HIS AUTHORITY.  INDEED, HER RESORT TO HER FIFTH
AMENDMENT RIGHTS MANIFESTLY HAD SUBSTANTIAL MERIT, FOR THE MAJORITY
DOES NOT SAY THAT THE AMENDMENT'S PROTECTION AGAINST BEING REQUIRED TO
GIVE INCRIMINATING ANSWERS DID NOT APPLY TO THE QUESTIONS, BUT ONLY
THAT SHE WAIVED THE PROTECTION OF THE AMENDMENT IN THE CIRCUMSTANCES. 

THE SITUATION, IT SEEMS TO ME, CRIED OUT FOR "ALERT SELF-RESTRAINT"
BY WAY OF CONSIDERATION OF THE OTHER AVAILABLE CORRECTIVES, BEFORE THE
JUDGE TOOK THE PARTICULARLY HARSH STEP OF SENDING MRS. BROWN TO JAIL
FOR SIX MONTHS.  THE TRIAL JUDGE GAVE NO THOUGHT TO THE USE OF THE
OTHER SANCTIONS AND, IN MY VIEW, HIS EXCLUSIVE RELIANCE UPON THE
CRIMINAL CONTEMPT POWER WAS ARBITRARY IN THE CIRCUMSTANCES.   I WOULD
THEREFORE SET ASIDE THE CONVICTION. 
..END :









GREEN V. UNITED STATES 356 U.S. 165 


NO. 100.  ARGUED OCTOBER 21, 1957 - DECIDED MARCH 31, 1958 - 241 F.2D
631, AFFIRMED. 


AFTER PETITIONERS WERE CONVICTED OF VIOLATING THE SMITH ACT AND
SENTENCED TO FINE AND IMPRISONMENT, THEY WERE ENLARGED ON BAIL PENDING
APPEAL.  AFTER THIS COURT AFFIRMED THEIR CONVICTIONS IN DENNIS V.
UNITED STATES, 341 U.S. 494, THE UNITED STATES ATTORNEY SERVED THEIR
COUNSEL WITH COPIES OF A PROPOSED ORDER ON MANDATE REQUIRING
PETITIONERS TO SURRENDER TO THE MARSHAL ON JULY 2, 1951, FOR EXECUTION
OF THEIR SENTENCES AND WITH NOTICE THAT SUCH ORDER WOULD BE PRESENTED
TO THE DISTRICT COURT FOR SIGNATURE ON JULY 2.  PETITIONERS WERE
INFORMED BY THEIR COUNSEL THAT THEIR PRESENCE IN COURT WOULD BE
REQUIRED ON JULY 2; BUT THEY DISAPPEARED FROM THEIR HOMES, FAILED TO
APPEAR IN COURT WHEN THE SURRENDER ORDER WAS SIGNED ON JULY 2, AND
REMAINED FUGITIVES FOR MORE THAN 4 1/2 YEARS.  AFTER THEY FINALLY
SURRENDERED TO THE MARSHAL, THEY WERE TRIED IN THE DISTRICT COURT
WITHOUT A JURY FOR CRIMINAL CONTEMPT, UNDER 18 U.S.C. SEC. 401 AND RULE
42 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, FOR WILLFUL DISOBEDIENCE
OF THE SURRENDER ORDER AND WERE CONVICTED AND SENTENCED TO THREE YEARS'
IMPRISONMENT, TO COMMENCE AFTER SERVICE OF THE FIVE-YEAR SENTENCES
IMPOSED FOR VIOLATIONS OF THE SMITH ACT.  HELD:  THEIR CONVICTIONS OF
CRIMINAL CONTEMPT AND THE SENTENCES THEREFOR ARE SUSTAINED.  PP. 167
189. 

1.  UNDER 18 U.S.C. SEC. 401, THE POWER OF FEDERAL COURTS TO PUNISH
FOR CRIMINAL CONTEMPTS, VIEWED IN ITS HISTORICAL PERSPECTIVE, INCLUDES
THE POWER TO PUNISH FOR DISOBEDIENCE OF SURRENDER ORDERS.  PP. 168
173. 

(A)  SECTION 17 OF THE JUDICIARY ACT OF 1789 ATTRIBUTED TO THE
FEDERAL JUDICIARY POWERS POSSESSED BY ENGLISH COURTS AT COMMON LAW TO
PUNISH FOR CONTEMPTS OF COURT.  P. 169. 

(B)  THE ACT OF 1831 WAS INTENDED TO CURTAIL THE POWERS OF FEDERAL
COURTS TO PUNISH UNDER THE CONTEMPT POWER FOR CERTAIN CONDUCT, NOT
HOWEVER OF THE KIND INVOLVED HERE.  IT REPRESENTED AN EFFORT BY THE
CONGRESS TO DEFINE INDEPENDENTLY THE CONTEMPT POWERS OF FEDERAL
COURTS.  PP. 170-173. 

2.  THE EVIDENCE WAS SUFFICIENT TO ESTABLISH BEYOND A REASONABLE
DOUBT PETITIONERS' KNOWING VIOLATIONS OF THE SURRENDER ORDER.  PP. 173
179. 

3.  THE DISTRICT COURT HAD POWER TO SENTENCE PETITIONERS TO
IMPRISONMENT FOR MORE THAN ONE YEAR.  PP. 179-187. 

(A)  SECTION 24 OF THE CLAYTON ACT OF 1914 (NOW FOUND IN AMENDED FORM
IN 18 U.S.C. SEC.  402), PROVIDING THAT CONTEMPTS OTHER THAN THOSE
REFERRED TO IN SEC. 24 WERE TO BE PUNISHED "IN CONFORMITY TO THE USAGES
AT LAW  ...  NOW PREVAILING," DID NOT FREEZE INTO CONTEMPT LAW THE
SENTENCING PRACTICES OF FEDERAL COURTS UP TO 1914 BUT MEANS THAT
CONTEMPTS (INCLUDING THAT INVOLVED IN THIS CASE) OTHER THAN THOSE
SPECIFIED IN SEC. 24 WERE TO BE TRIED BY NORMAL CONTEMPT PROCEDURES,
SUCH AS TRIAL WITHOUT JURY.  PP. 179-182. 

(B)  UNDER 18 U.S.C. SEC. 401, AS UNDER ITS STATUTORY PREDECESSORS,
THE TERM OF IMPRISONMENT IS NOT SUBJECT TO A ONE-YEAR LIMITATION BUT IS
WITHIN THE DISCRETION OF THE COURT.  PP.  182-183. 

(C)  CRIMINAL CONTEMPTS NEED NOT BE PROSECUTED BY INDICTMENT, SINCE
THEY ARE NOT "INFAMOUS CRIMES" WITHIN THE MEANING OF THE FIFTH
AMENDMENT'S PROVISION THAT "NO PERSON SHALL BE HELD TO ANSWER FOR A
CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A PRESENTMENT OR
INDICTMENT OF A GRAND JURY."  PP. 183-185. 

(D)  THIS CONCLUSION FOLLOWS FROM THE LONG LINE OF CASES IN THIS
COURT TO THE EFFECT THAT CRIMINAL CONTEMPTS ARE NOT SUBJECT TO JURY
TRIAL AS A MATTER OF CONSTITUTIONAL RIGHT UNDER ARTICLE III, SEC. 2 OR
THE SIXTH AMENDMENT.  PP. 183-187. 

4.  ALTHOUGH FEDERAL COURTS IN DEALING WITH CRIMINAL CONTEMPTS HAVE A
DUTY TO EXERCISE SPECIAL CARE IN APPLYING THEIR DISCRETION TO LENGTH OF
SENTENCES IMPOSED FOR COMMISSION OF CONTEMPTS, THE THREE-YEAR SENTENCES
HERE DID NOT CONSTITUTE AN ABUSE OF DISCRETION ON THE PART OF THE
DISTRICT COURT.  PP. 187-189. 

GREEN ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE TWO OF ELEVEN DEFENDANTS WHO WERE CONVICTED IN THE
SOUTHERN DISTRICT OF NEW YORK IN 1949 OF CONSPIRING TO TEACH AND
ADVOCATE THE VIOLENT OVERTHROW OF THE GOVERNMENT IN VIOLATION OF THE
SMITH ACT, 54 STAT. 670, 671, 18 U.S.C. SECS. 371, 2385.  THEIR
CONVICTIONS, EACH CARRYING A $10,000 FINE AND FIVE YEARS' IMPRISONMENT,
WERE AFFIRMED BY THIS COURT ON JUNE 4, 1951, IN DENNIS V. UNITED
STATES, 341 U.S. 494.  AFTER THEIR CONVICTIONS, PETITIONERS HAD BEEN
ENLARGED ON BAIL, AND FOLLOWING THE AFFIRMANCE, THE UNITED STATES
ATTORNEY SERVED COUNSEL FOR THE PETITIONERS ON JUNE 28, 1951, WITH
COPIES OF A PROPOSED ORDER ON MANDATE REQUIRING PETITIONERS TO
SURRENDER TO THE UNITED STATES MARSHAL ON JULY 2 FOR THE EXECUTION OF
THEIR SENTENCES, AND WITH A NOTICE THAT SUCH ORDER WOULD BE PRESENTED
TO THE DISTRICT COURT FOR SIGNATURE ON THE INDICATED DAY OF SURRENDER. 
PETITIONERS WERE THEREUPON INFORMED BY THEIR COUNSEL THAT THEIR
PRESENCE IN COURT WOULD BE REQUIRED ON JULY 2.  BOTH, HOWEVER,
DISAPPEARED FROM THEIR HOMES, FAILED TO APPEAR IN COURT WHEN THE
SURRENDER ORDER WAS SIGNED ON JULY 2, AND REMAINED FUGITIVES FOR MORE
THAN FOUR AND A HALF YEARS.  ULTIMATELY BOTH VOLUNTARILY SURRENDERED TO
THE UNITED STATES MARSHAL IN NEW YORK, GREEN ON FEBRUARY 27, 1956, AND
WINSTON ON MARCH 5, 1956. 

SHORTLY THEREAFTER, THE UNITED STATES INSTITUTED CRIMINAL CONTEMPT
PROCEEDINGS AGAINST THE PETITIONERS IN THE DISTRICT COURT FOR WILLFUL
DISOBEDIENCE OF THE SURRENDER ORDER IN VIOLATION OF 18 U.S.C. SEC. 401
(SEE P. 168, INFRA).  PURSUANT TO RULE 42(B) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, THESE PROCEEDINGS WERE TRIED TO THE COURT WITHOUT A
JURY.  (FN1)  FOLLOWING A HEARING, THE COURT FOUND PETITIONERS GUILTY
OF THE CONTEMPTS CHARGED AND SENTENCED EACH TO THREE YEARS'
IMPRISONMENT TO COMMENCE AFTER SERVICE OF THE FIVE-YEAR SENTENCES
IMPOSED IN THE CONSPIRACY CASE.  SEE 140 F. SUPP. 117 (OPINION AS TO
GREEN).  THE COURT OF APPEALS AFFIRMED, 241 F.2D 631, AND WE GRANTED
CERTIORARI BECAUSE THE CASE PRESENTED IMPORTANT ISSUES RELATING TO THE
SCOPE OF THE POWER OF FEDERAL DISTRICT COURTS TO CONVICT AND SENTENCE
FOR CRIMINAL CONTEMPTS.  353 U.S. 972. 

THE PETITIONERS URGE FOUR GROUNDS FOR REVERSAL, NAMELY:  (1) THE
CRIMINAL CONTEMPT POWER OF FEDERAL COURTS DOES NOT EXTEND TO SURRENDER
ORDERS; (2) EVEN IF SUCH POWER EXISTS, THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT THE JUDGMENTS OF CONTEMPT; (3) A PRISON SENTENCE FOR CRIMINAL
CONTEMPT CANNOT, AS A MATTER OF LAW, EXCEED ONE YEAR; AND (4) IN ANY
EVENT THE THREE-YEAR SENTENCES IMPOSED WERE SO EXCESSIVE AS TO
CONSTITUTE AN ABUSE OF DISCRETION ON THE PART OF THE DISTRICT COURT. 
FOR THE REASONS GIVEN HEREAFTER WE THINK THAT NONE OF THESE CONTENTIONS
CAN BE SUSTAINED, AND THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE
UPHELD. 

   I. 

THE CONTEMPT JUDGMENTS REST ON 18 U.S.C. SEC. 401, WHICH IN PERTINENT
PART PROVIDES THAT A FEDERAL COURT: 

" ...  SHALL HAVE POWER TO PUNISH BY FINE OR IMPRISONMENT, AT ITS
DISCRETION, SUCH CONTEMPT OF ITS AUTHORITY, AND NONE OTHER, AS: 

     *         *         *         *         * 

"(3)  DISOBEDIENCE OR RESISTANCE TO ITS LAWFUL  ...  ORDER  ...  ." 

SINCE THE ORDER HERE ISSUED WAS BEYOND DISPUTE "LAWFUL," SEC. 401
PLAINLY EMPOWERED THE DISTRICT COURT TO PUNISH PETITIONERS FOR
DISOBEYING IT UNLESS, AS PETITIONERS CLAIM, THIS ORDER IS OUTSIDE THE
SCOPE OF SUBDIVISION (3).  THIS CLAIM RESTS ON THE ARGUMENT THAT THE
STATUTE, VIEWED IN ITS HISTORICAL CONTEXT, DOES NOT EMBRACE AN ORDER
REQUIRING THE SURRENDER OF A BAILED DEFENDANT. 

AN EVALUATION OF THIS ARGUMENT REQUIRES AN ANALYSIS OF THE COURSE OF
DEVELOPMENT OF FEDERAL STATUTES RELATING TO CRIMINAL CONTEMPTS.  THE
FIRST STATUTE BEARING ON THE CONTEMPT POWERS OF FEDERAL COURTS WAS
ENACTED AS SEC. 17 OF THE JUDICIARY ACT OF 1789, 1 STAT. 73, 83.  IT
STATED THAT FEDERAL COURTS "SHALL HAVE POWER TO  ...  PUNISH BY FINE OR
IMPRISONMENT, AT THE DISCRETION OF SAID COURTS, ALL CONTEMPTS OF
AUTHORITY IN ANY CAUSE OR HEARING BEFORE THE SAME  ...  ."  THE
GENERALITY OF THIS LANGUAGE SUGGESTS THAT SEC. 17 WAS INTENDED TO DO NO
MORE THAN EXPRESSLY ATTRIBUTE TO THE FEDERAL JUDICIARY THOSE POWERS TO
PUNISH FOR CONTEMPT POSSESSED BY ENGLISH COURTS AT COMMON LAW.  INDEED,
THIS COURT HAS ITSELF STATED THAT UNDER SEC. 17 THE DEFINITION OF
CONTEMPTS AND THE PROCEDURE FOR THEIR TRIAL WERE "LEFT TO BE DETERMINED
ACCORDING TO SUCH ESTABLISHED RULES AND PRINCIPLES OF THE COMMON LAW AS
WERE APPLICABLE TO OUR SITUATION."  SAVIN, PETITIONER, 131 U.S. 267,
275-276.  (FN2)  AT ENGLISH COMMON LAW DISOBEDIENCE OF A WRIT UNDER THE
KING'S SEAL WAS EARLY TREATED AS A CONTEMPT, 4 BLACKSTONE COMMENTARIES
284, 285; BEALE, CONTEMPT OF COURT, 21 HARV. L. REV.  161, 164-167;
FOX, THE SUMMARY PROCESS TO PUNISH CONTEMPT, 25 L.Q. REV. 238, 249, AND
OVER THE CENTURIES ENGLISH COURTS CAME TO USE THE KING'S SEAL AS A
MATTER OF COURSE AS A MEANS OF MAKING EFFECTIVE THEIR OWN PROCESS. 
BEALE, AT 167.  IT FOLLOWS THAT UNDER THE JUDICIARY ACT OF 1789 THE
CONTEMPT POWERS OF THE FEDERAL COURTS COMPREHENDED THE POWER TO PUNISH
VIOLATIONS OF THEIR OWN ORDERS.  (FN3) 

SO MUCH THE PETITIONERS RECOGNIZE.  THEY POINT OUT, HOWEVER, THAT, AT
EARLY ENGLISH LAW, COURTS DEALT WITH ABSCONDING DEFENDANTS NOT BY WAY
OF CONTEMPT, BUT UNDER THE ANCIENT DOCTRINE OF OUTLAWRY, A PRACTICE
WHEREBY THE DEFENDANT WAS SUMMONED BY PROCLAMATION TO FIVE SUCCESSIVE
COUNTY COURTS AND, FOR FAILURE TO APPEAR, WAS DECLARED FORFEITED OF ALL
HIS GOODS AND CHATTELS.  4 BLACKSTONE COMMENTARIES 283, 319.  IN VIEW
OF THIS DISTINCT METHOD AT ENGLISH COMMON LAW OF PUNISHING REFUSAL TO
RESPOND TO THIS SUMMONS, WHICH WAS THE EQUIVALENT OF THE PRESENT
SURRENDER ORDER, PETITIONERS ARGUE THAT SEC. 17 OF THE JUDICIARY ACT OF
1789, INCORPORATING ENGLISH PRACTICE, DID NOT REACH TO A SURRENDER
ORDER, AND THAT THE UNIQUE STATUS OF SUCH AN ORDER SUBSISTED UNDER ALL
STATUTORY SUCCESSORS TO SEC. 17, INCLUDING SEC. 401(3) OF THE EXISTING
CONTEMPT STATUTE. 

WE FIND THESE ARGUMENTS UNCONVINCING.  THE REASONS FOR THE EARLY
ENGLISH PRACTICE OF PROCEEDING AGAINST ABSCONDING DEFENDANTS BY WAY OF
OUTLAWRY RATHER THAN BY CONTEMPT ARE OBSCURE.  IT MAY HAVE BEEN THAT
OUTLAWRY WAS RESORTED TO BECAUSE ABSCONDING WAS REGARDED SO SERIOUSLY
AS TO REQUIRE THE DRASTIC PENALTIES OF OUTLAWRY RATHER THAN FINE OR
IMPRISONMENT.  BUT WHATEVER THE REASONS MAY HAVE BEEN, THE FACT THAT
ENGLISH COURTS ADHERED TO THE PRACTICE OF DEALING WITH SUCH CASES BY
OUTLAWRY SHOULD NOT OBSCURE THE GENERAL PRINCIPLE THAT THEY HAD POWER
TO TREAT WILLFUL DISOBEDIENCE OF THEIR ORDERS AS CONTEMPTS OF COURT. 
IT IS SIGNIFICANT THAT, SO FAR AS WE KNOW, THE SEVERE REMEDY OF
OUTLAWRY, WHICH FELL INTO EARLY DISUSE IN THE STATE COURTS, WAS NEVER
KNOWN TO THE FEDERAL LAW.  SEE UNITED STATES V. HALL, 198 F.2D 726, 727
728.  ITS UNAVAILABILITY TO FEDERAL COURTS, AND THE ABSENCE OF ANY
OTHER SANCTIONS FOR THE DISOBEDIENCE OF SURRENDER ORDERS, ARE IN
THEMSELVES FACTORS WHICH POINT AWAY FROM THE CONCLUSION THAT THE KIND
OF POWER TRADITIONALLY USED TO ASSURE RESPECT FOR A COURT'S PROCESS
SHOULD BE FOUND WANTING IN THIS ONE INSTANCE. 

THE SUBSEQUENT DEVELOPMENT OF THE FEDERAL CONTEMPT POWER LENDS NO
SUPPORT TO THE PETITIONERS' POSITION, FOR THE SIGNIFICANCE OF THE ACT
OF 1831, 4 STAT. 487, 488, LIES QUITE IN THE OPPOSITE DIRECTION. 
SENTIMENT FOR PASSAGE OF THAT ACT AROSE OUT OF THE IMPEACHMENT
PROCEEDINGS INSTITUTED AGAINST JUDGE JAMES H. PECK BECAUSE OF HIS
CONVICTION AND PUNISHMENT FOR CRIMINAL CONTEMPT OF A LAWYER WHO HAD
PUBLISHED AN ARTICLE CRITICAL OF A DECISION OF THE JUDGE THEN ON
APPEAL.  ALTHOUGH IT IS TRUE THAT THE ACT MARKS THE FIRST CONGRESSIONAL
STEP TO CURTAIL THE CONTEMPT POWERS OF THE FEDERAL COURTS, THE
IMPORTANT THING TO NOTE IS THAT THE AREA OF CURTAILMENT RELATED NOT TO
PUNISHMENT FOR DISOBEDIENCE OF COURT ORDERS BUT TO PUNISHMENT FOR
CONDUCT OF THE KIND THAT HAD PROVOKED JUDGE PECK'S CONTROVERSIAL
ACTION.  AS TO SUCH CONDUCT, THE 1831 ACT CONFINED THE SUMMARY POWER OF
PUNISHMENT TO "  ...  MISBEHAVIOUR OF ANY PERSON  ...  IN THE PRESENCE
OF THE  ...  COURTS, OR SO NEAR THERETO AS TO OBSTRUCT THE
ADMINISTRATION OF JUSTICE  ...  ."  THE CASES IN THIS COURT WHICH HAVE
CURBED THE EXERCISE OF THE CONTEMPT POWER BY FEDERAL COURTS HAVE
CONCERNED THIS CLAUSE, AS FOUND IN STATUTORY SUCCESSORS TO THE ACT OF
1831 INCLUDING SUBDIVISION (1) OF PRESENT 18 U.S.C. SEC. 401, OR A
FURTHER CLAUSE IN THE ACT AND ITS SUCCESSORS DEALING WITH MISBEHAVIOR
OF COURT "OFFICERS," NOW FOUND IN SUBDIVISION (2) OF SEC. 401.  (FN4) 

IN CONTRAST TO THE JUDICIAL RESTRICTIONS IMPOSED ON THE CONTEMPT
POWER EXERCISABLE UNDER THE CLAUSES NOW FOUND IN SUBDIVISIONS (1) AND
(2) OF SEC. 401, WE FIND NO CASE SUGGESTING THAT SUBDIVISION (3) OF
SEC. 401, BEFORE US HERE, IS OPEN TO ANY BUT ITS OBVIOUS MEANING.  THIS
CLAUSE ALSO FINDS ITS STATUTORY SOURCE IN THE ACT OF 1831, WHICH FIRST
MADE EXPLICIT THE AUTHORITY OF FEDERAL COURTS TO PUNISH FOR CONDUCT OF
THE KIND INVOLVED IN THIS CASE BY PROVIDING THAT THE CONTEMPT POWER
SHOULD EXTEND TO "  ...  DISOBEDIENCE OR RESISTANCE  ...  TO ANY LAWFUL
WRIT, PROCESS, ORDER, RULE, DECREE, OR COMMAND  ...  " OF A FEDERAL
COURT.  PARTICULARLY IN THE ABSENCE OF ANY SHOWING THAT THE OLD
PRACTICE OF OUTLAWRY WAS EVER BROUGHT TO THE ATTENTION OF CONGRESS,
THERE IS NO WARRANT FOR ENGRAFTING UPON THIS UNAMBIGUOUS CLAUSE A
DUBIOUS EXCEPTION TO THE ENGLISH CONTEMPT POWER STEMMING FROM THIS
PRACTICE.  ALTHOUGH THE 1831 ACT NO DOUBT INCORPORATED MANY OF THE
CONCEPTS OF THE ENGLISH COMMON LAW, ITS LEGISLATIVE HISTORY INDICATES
THAT CONGRESS SOUGHT TO DEFINE INDEPENDENTLY THE CONTEMPT POWERS OF
FEDERAL COURTS RATHER THAN TO HAVE THE ACT SIMPLY REFLECT ALL THE
ODDITIES OF EARLY ENGLISH PRACTICE.  THE HOUSE COMMITTEE WHICH REPORTED
THE BILL HAD BEEN DIRECTED "TO INQUIRE INTO THE EXPEDIENCY OF DEFINING
BY STATUTE ALL OFFENCES WHICH MAY BE PUNISHED AS CONTEMPTS OF  ...  "
FEDERAL COURTS.  7 CONG. DEB., 21ST CONG., 2D SESS. (GALE'S & SEATON'S
REG.), PP. 560-561.  SEE FRANKFURTER AND LANDIS, POWER TO REGULATE
CONTEMPTS, 37 HARV. L. REV. 1010, 1024-1028. 

ENTIRELY APART FROM THE HISTORICAL ARGUMENT, THERE ARE NO REASONS OF
POLICY SUGGESTING A NEED FOR LIMITATION OF THE CONTEMPT POWER IN THIS
SITUATION.  AS THE PRESENT CASES EVIDENCE, THE ISSUANCE OF A BENCH
WARRANT AND THE FORFEITURE OF BAIL FOLLOWING FLIGHT HAVE GENERALLY
PROVED INADEQUATE TO DISSUADE DEFENDANTS FROM DEFYING COURT ORDERS. 
SEE WILLOUGHBY, PRINCIPLES OF JUDICIAL ADMINISTRATION (1929), 561-566. 
AT THE TIME THESE CONTEMPTS WERE COMMITTED BAIL-JUMPING ITSELF WAS NOT
A CRIMINAL OFFENSE, AND CONSIDERATIONS IN PAST DECISIONS LIMITING THE
SCOPE OF THE CONTEMPT POWER WHERE THE CONDUCT DEEMED TO CONSTITUTE A
CONTEMPT WAS ALSO PUNISHABLE AS A SUBSTANTIVE CRIME ARE NOT HERE
RELEVANT.  CF. EX PARTE HUDGINGS, 249 U.S. 378, 382.  THERE IS SMALL
JUSTIFICATION FOR PERMITTING A DEFENDANT THE ASSURANCE THAT HIS ONLY
RISK IN DISOBEYING A SURRENDER ORDER IS THE FORFEITURE OF A KNOWN SUM
OF MONEY, PARTICULARLY WHEN SUCH FORFEITURE MAY RESULT IN INJURY ONLY
TO A BAIL SURETY. 

IT MAY BE TRUE, AS PETITIONERS STATE, THAT THIS CASE AND THOSE OF THE
OTHER ABSCONDING DENNIS DEFENDANTS, UNITED STATES V. THOMPSON, 214 F.2D
545; UNITED STATES V. HALL, 198 F.2D 726, PROVIDE THE FIRST INSTANCES
WHERE A FEDERAL COURT HAS EXERCISED THE CONTEMPT POWER FOR DISOBEDIENCE
OF A SURRENDER ORDER.  BUT THE POWER TO PUNISH FOR WILLFUL DISOBEDIENCE
OF A COURT ORDER, ONCE FOUND TO EXIST, CANNOT BE SAID TO HAVE ATROPHIED
BY DISUSE IN THIS PARTICULAR INSTANCE.  INDEED, WHEN CONGRESS IN 1954
MADE BAIL-JUMPING A CRIME IN 18 U.S.C. SEC. 3146, IT EXPRESSLY
PRESERVED THE CONTEMPT POWER IN THIS VERY SITUATION.  WE FIND SUPPORT
IN NEITHER HISTORY NOR POLICY TO CARVE OUT SO SINGULAR AN EXCEPTION
FROM THE CLEAR MEANING OF SEC. 401(3). 

                       II. 

PETITIONERS CONTEND THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
THEIR CONTEMPT CONVICTIONS, IN THAT IT FAILED TO ESTABLISH BEYOND A
REASONABLE DOUBT THEIR KNOWLEDGE OF THE EXISTENCE OF THE SURRENDER
ORDER.  THE COURT OF APPEALS DID NOT ADDRESS ITSELF TO THIS CONTENTION,
CONSIDERING THE ISSUE FORECLOSED BY ITS PRIOR DECISIONS IN THE THOMPSON
AND HALL CASES, SUPRA, WHERE THE EVIDENCE AS TO THOSE OTHER TWO DENNIS
DEFENDANTS WHO WERE CONVICTED OF SIMILAR CRIMINAL CONTEMPTS WAS
IDENTICAL WITH THAT INVOLVED HERE, EXCEPT AS TO THE CIRCUMSTANCES OF
THEIR ULTIMATE APPREHENSION. 

IN THIS COURT, PETITIONERS INTERPRET THE DISTRICT COURT'S OPINION TO
REST THE CONTEMPT CONVICTIONS ON ALTERNATIVE THEORIES:  (A) THAT THE
PETITIONERS HAD ACTUAL KNOWLEDGE OF THE ISSUANCE OF THE JULY 2
SURRENDER ORDER, OR (B) THAT THEY AT LEAST HAD NOTICE OF ITS
PROSPECTIVE ISSUANCE AND HENCE WERE CHARGEABLE WITH KNOWLEDGE THAT IT
WAS IN FACT ISSUED.  BUT WE FIND NO SUCH DUAL ASPECT TO THE DISTRICT
COURT'S DECISION, WHICH RESTED SOLELY ON FINDINGS THAT, BEYOND A
REASONABLE DOUBT, GREEN "KNOWINGLY DISOBEYED" THE SURRENDER ORDER AND
WINSTON ABSENTED HIMSELF "WITH KNOWLEDGE" OF THE ORDER.  SINCE WE ARE
SATISFIED THAT THE RECORD SUPPORTS THESE FINDINGS, WE NEED NOT CONSIDER
WHETHER MERE NOTICE OF THE PROSPECTIVE ISSUANCE OF THE ORDER, CF.
PETTIBONE V. UNITED STATES, 148 U.S. 197, 206-207, WOULD BE SUFFICIENT
TO SUSTAIN THESE CONVICTIONS ON THE THEORY THAT PETITIONERS WERE
CHARGEABLE AS A MATTER OF LAW WITH NOTICE THAT IT WAS LATER ISSUED. 
THE EVIDENCE FOR THE GOVERNMENT, THERE BEING NONE OFFERED BY THE
DEFENSE, RELATED TO THREE TIME INTERVALS:  (1) THE PERIOD UP TO JUNE
28, 1951; (2) THE FOUR-DAY INTERVAL BETWEEN JUNE 28, WHEN THE PROPOSED
SURRENDER ORDER WAS SERVED ON COUNSEL WITH THE NOTICE OF SETTLEMENT,
AND JULY 2, WHEN THE SURRENDER ORDER WAS SIGNED; AND (3) THE PERIOD
ENDING WITH THE SURRENDER OF THE PETITIONERS - FEBRUARY 27, 1956, IN
THE CASE OF GREEN, AND MARCH 5, 1956, IN THE CASE OF WINSTON. 

1.  THE JUDGMENTS OF CONVICTION UPON THE CONSPIRACY INDICTMENT UNDER
THE SMITH ACT WERE ENTERED, AND THE PETITIONERS WERE SENTENCED, ON
OCTOBER 21, 1949.  ON NOVEMBER 2, 1949, THE COURT OF APPEALS ADMITTED
THE PETITIONERS TO BAIL PENDING APPEAL UPON SEPARATE RECOGNIZANCES,
SIGNED BY EACH PETITIONER ON NOVEMBER 3, BY WHICH EACH UNDERTOOK, AMONG
OTHER THINGS, TO: 

"SURRENDER HIMSELF IN EXECUTION OF THE JUDGMENT AND SENTENCE APPEALED
FROM UPON SUCH DAY AS THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK MAY DIRECT, IF THE JUDGMENT AND SENTENCE
APPEALED FROM SHALL BE AFFIRMED  ...  ." 

FOLLOWING THE COURT OF APPEALS' AFFIRMANCE OF THE CONSPIRACY
CONVICTIONS ON AUGUST 1, 1950, 183 F.2D 201, MR. JUSTICE JACKSON, AS
CIRCUIT JUSTICE, CONTINUED PETITIONERS' BAIL ON SEPTEMBER 25, 1950,
PENDING REVIEW OF THE CONVICTIONS BY THIS COURT.  184 F.2D 280.  THIS
COURT, AS NOTED ABOVE, AFFIRMED THE CONSPIRACY CONVICTIONS ON JUNE 4,
1951, AND ON JUNE 22, 1951, MR. JUSTICE JACKSON DENIED A STAY OF THE
COURT'S MANDATE. 

2.  ON THURSDAY, JUNE 28, 1951, ONE OF THE COUNSEL IN THE DENNIS CASE
ACCEPTED SERVICE ON BEHALF OF ALL THE DEFENDANTS, INCLUDING
PETITIONERS, OF A PROPOSED ORDER ON MANDATE REQUIRING THE DEFENDANTS TO
"PERSONALLY SURRENDER TO THE UNITED STATES MARSHAL FOR THE SOUTHERN
DISTRICT OF NEW YORK  ...  ON THE 2ND DAY OF JULY, 1951, AT 11:05"
A.M., TOGETHER WITH A NOTICE STATING THAT THE PROPOSED ORDER WOULD BE
PRESENTED TO THE DISTRICT COURT "FOR SETTLEMENT AND SIGNATURE" AT 10
A.M. ON THAT DAY.  (FN5)  IT APPEARS FROM THE TESTIMONY OF THIS SAME
COUNSEL AND ANOTHER DENNIS COUNSEL THAT ON THE FOLLOWING DAY, FRIDAY,
JUNE 29, AN UNSUCCESSFUL REQUEST WAS MADE TO THE UNITED STATES ATTORNEY
AND THE DISTRICT COURT TO POSTPONE THE DEFENDANTS' SURRENDER UNTIL
AFTER THE JULY 4 HOLIDAY; THAT ON THE SAME DAY THESE LAWYERS TOLD THE
PETITIONERS AND THE OTHER DENNIS DEFENDANTS THAT THEY MUST BE IN COURT
ON MONDAY, JULY 2; AND THAT PETITIONERS ASSURED COUNSEL OF THEIR
APPEARANCE ON THAT DAY.  (FN6)  ON JULY 2 ALL OF THE DENNIS DEFENDANTS
SURRENDERED, EXCEPT THE TWO PETITIONERS, AND HALL AND THOMPSON.  THE
SURRENDER ORDER WAS SIGNED, BENCH WARRANTS WERE ISSUED FOR THE ARREST
OF THESE FOUR, AND THE PROCEEDINGS WERE ADJOURNED TO THE FOLLOWING DAY,
JULY 3. 

3.  ON JULY 3 THE NAMES OF THE PETITIONERS WERE CALLED AGAIN IN OPEN
COURT, AND AFTER INTERROGATING COUNSEL AS TO THEIR DISAPPEARANCE (SEE
NOTE 6, SUPRA), THE COURT DECLARED THEIR BAIL FORFEITED.  THE
PETITIONERS REMAINED IN HIDING UNTIL THEIR EVENTUAL SURRENDER, SOME
FOUR AND A HALF YEARS LATER.  PRIOR TO THEIR RESPECTIVE SURRENDERS IN
FEBRUARY AND MARCH, 1956, GREEN AND WINSTON ISSUED PRESS RELEASES
ANNOUNCING THEIR INTENTION TO SURRENDER AND "ENTER PRISON."  (FN7)
WHEN HE TURNED UP ON THE STEPS OF THE COURTHOUSE, GREEN ALSO RESPONDED
TO CERTAIN QUESTIONS PUT BY REPORTERS AND STATED, AMONG OTHER THINGS,
THAT HE INTENDED "TO GO TO THE UNITED STATES MARSHAL'S OFFICE," THIS
BEING A REQUIREMENT FOUND ONLY IN THE SURRENDER ORDER ITSELF.  WINSTON
MADE A SIMILAR STATEMENT IN HIS PRESS RELEASE. 

IN SUMMARY, ONE DAY AFTER COUNSEL WAS SERVED ON JUNE 28 WITH THE
PROPOSED ORDER CALLING FOR PETITIONERS' SURRENDER ON JULY 2, TOGETHER
WITH THE NOTICE STATING THAT THE ORDER WOULD ALSO BE PRESENTED FOR THE
COURT'S SIGNATURE ON THAT DAY, PETITIONERS WERE UNEQUIVOCALLY NOTIFIED
BY COUNSEL THAT THEIR PRESENCE IN COURT WAS REQUIRED ON JULY 2.  FROM
THESE UNDISPUTED FACTS, COUPLED WITH PETITIONERS' DISAPPEARANCE, IT WAS
CERTAINLY PERMISSIBLE FOR THE DISTRICT COURT TO INFER THAT PETITIONERS
KNEW OF THE PROPOSED SURRENDER ORDER, OF THE FAILURE OF COUNSEL'S
EFFORTS ON JUNE 29 TO POSTPONE THE SURRENDER DATE, AND OF THE COURT'S
INTENTION TO SIGN THE ORDER ON JULY 2.  WE NEED NOT DECIDE WHETHER
THESE FACTS ALONE WOULD SUSTAIN THE FINDING THAT PETITIONERS KNEW OF
THE ISSUANCE OF THE SURRENDER ORDER ON JULY 2 AS PLANNED, FOR
UNQUESTIONABLY AS BACKGROUND THEY FURNISHED SIGNIFICANT SUPPORT FOR THE
DISTRICT COURT'S ULTIMATE FINDING THAT PETITIONERS' STATEMENTS TO THE
PRESS AT THE TIME OF THEIR EVENTUAL SURRENDER IN 1956 (SEE NOTE 7,
SUPRA) INDICATED THEIR KNOWLEDGE OF THE ISSUANCE OF THE ORDER, A
FINDING STRENGTHENED BY THE FACT THAT THE RECOGNIZANCE ADMITTING THE
PETITIONERS TO BAIL OBLIGATED PETITIONERS TO SURRENDER FOR SERVICE OF
SENTENCE ONLY WHEN SO DIRECTED BY THE DISTRICT COURT. 

NO DOUBT SOME OF THIS EVIDENCE LENT ITSELF TO CONFLICTING INFERENCES,
BUT THOSE FAVORABLE TO THE PETITIONERS WERE, IN OUR VIEW, NOT OF SUCH
STRENGTH AS TO COMPEL THE TRIER OF THE FACTS TO REJECT ALTERNATIVE
UNFAVORABLE INFERENCES.  OUR DUTY AS AN APPELLATE COURT IS TO ASSESS
THE EVIDENCE AS A WHOLE UNDER THE RIGOROUS STANDARDS GOVERNING CRIMINAL
TRIALS, RATHER THAN TO TEST BY THOSE STANDARDS EACH ITEM OF EVIDENCE
RELIED ON BY THE DISTRICT COURT.  9 WIGMORE, EVIDENCE (3D ED. 1940),
SEC. 2497; 1 WHARTON, CRIMINAL EVIDENCE (12TH ED. 1955), SEC. 16.  SO
VIEWING THE ENTIRE RECORD, WE THINK THE DISTRICT COURT WAS JUSTIFIED IN
FINDING THAT THE EVIDENCE ESTABLISHED, BEYOND A REASONABLE DOUBT,
PETITIONERS' KNOWING VIOLATIONS OF THE SURRENDER ORDER. 

     III. 

WE DEAL HERE WITH PETITIONERS' CLAIM THAT THE DISTRICT COURT WAS
WITHOUT POWER TO SENTENCE THEM TO IMPRISONMENT FOR MORE THAN ONE YEAR. 

FEDERAL COURTS "  ...  TO PUNISH BY FINE OR IMPRISONMENT, AT THE
DISCRETION OF SAID COURTS  ...  " CERTAIN CONTEMPTS.  THE ACT OF 1831
SIMPLY REFERRED TO THE POWER TO "INFLICT SUMMARY PUNISHMENTS," AND
PRESENT SEC. 401 CONTAINS SUBSTANTIALLY THE ABOVE LANGUAGE OF THE ACT
OF 1789.  PETITIONERS CONTEND THAT DESPITE THE PROVISION FOR
"DISCRETION," THE POWER TO PUNISH UNDER SEC. 401 IS LIMITED TO ONE YEAR
BY CERTAIN SECTIONS OF THE CLAYTON ACT OF 1914, 38 STAT.  730, 738
740.  IN ANY EVENT, WE ARE URGED TO READ SUCH A LIMITATION INTO SEC.
401 IN ORDER TO AVOID CONSTITUTIONAL DIFFICULTIES WHICH, IT IS SAID,
WOULD OTHERWISE CONFRONT US. 

WE TURN FIRST TO THE ARGUMENT BASED ON THE CLAYTON ACT.  SECTIONS 21
AND 22 OF THAT ACT PROVIDED THAT CERTAIN RIGHTS NOT TRADITIONALLY
ACCORDED PERSONS CHARGED WITH CONTEMPT, NOTABLY THE RIGHT TO TRIAL BY
JURY, SHOULD BE GRANTED IN CERTAIN CLASSES OF CRIMINAL CONTEMPTS, AND
THAT PERSONS TRIED UNDER THESE PROCEDURES WERE NOT SUBJECT TO A FINE OF
MORE THAN $1,000 OR IMPRISONMENT FOR LONGER THAN SIX MONTHS.  (FN8)
CATEGORIES OF CONTEMPTS, INCLUDING THE CONTEMPT FOR WHICH THE
PETITIONERS HERE HAVE BEEN CONVICTED, (FN9) AND PROVIDED THAT SUCH
EXCLUDED CATEGORIES OF CONTEMPTS WERE TO BE PUNISHED "IN CONFORMITY TO
THE USAGES AT LAW AND IN EQUITY NOW PREVAILING."  IN THE RECODIFICATION
OF 1948 THE FOREGOING PROVISIONS OF THE CLAYTON ACT WERE SUBSTANTIALLY
RE-ENACTED IN SEC. 402 (FN10) OF THE PRESENT CONTEMPT STATUTE, AND THE
ABOVE-QUOTED CLAUSE NOW READS:  "IN CONFORMITY TO THE PREVAILING USAGES
AT LAW." 

PETITIONERS' ARGUMENT IS THAT THE PURPOSE AND EFFECT OF THE "USAGES
...  NOW PREVAILING" LANGUAGE OF SEC. 24 OF THE CLAYTON ACT WAS TO
FREEZE INTO FEDERAL CONTEMPT LAW THE SENTENCING PRACTICES OF FEDERAL
COURTS, WHICH UP TO THAT TIME APPEAR NEVER TO HAVE IMPOSED A CONTEMPT
SENTENCE OF MORE THAN ONE YEAR.  (FN11)  THESE PRACTICES, SUGGEST
PETITIONERS, REFLECT THE UNARTICULATED BELIEF OF FEDERAL COURTS THAT
CRIMINAL CONTEMPTS ARE NOT INFAMOUS CRIMES AND HENCE NOT SUBJECT TO
PUNISHMENT BY IMPRISONMENT FOR OVER ONE YEAR; (FN12) THIS BELIEF IS
SAID TO DERIVE FROM THE CONSTITUTIONAL CONSIDERATIONS TO WHICH WE
SHORTLY TURN.  IN VIEW OF THIS SUGGESTED EFFECT OF SEC. 24, PETITIONERS
WOULD HAVE US READ THE "DISCRETION" VESTED IN FEDERAL COURTS BY SEC.
401 AS REFERRING EXCLUSIVELY TO THE CHOICE BETWEEN SENTENCING TO FINE
OR IMPRISONMENT, OR IN ANY EVENT AS SUBJECT TO THE UNEXPRESSED
LIMITATION OF ONE YEAR'S IMPRISONMENT. 

PARTICULARLY IN THE CONTEXT OF THE REST OF THE CLAYTON ACT OF 1914 WE
CANNOT READ THE "USAGES  ...  NOW PREVAILING" CLAUSE OF SEC. 24 AS
INCORPORATING INTO THE STATUTE THE SENTENCING PRACTICES UP TO THAT
DATE.  IN SEC. 22 THE STATUTE SPECIFICALLY RESTRICTS TO SIX MONTHS THE
MAXIMUM TERM OF IMPRISONMENT WHICH MAY BE IMPOSED FOR COMMISSION OF ANY
OF THE CONTEMPTS DESCRIBED IN SEC. 21.  HAD CONGRESS ALSO INTENDED TO
RESTRICT THE TERM OF IMPRISONMENT FOR CONTEMPTS EXCLUDED FROM THE
OPERATION OF THE ACT BY SEC. 24, IT IS DIFFICULT TO UNDERSTAND WHY IT
DID NOT MAKE EXPLICIT ITS INTENTION, AS IT DID IN SEC.  22, RATHER THAN
SO SUBTLY EXPRESS ITS PURPOSE BY PROCEEDING IN THE DEVIOUS MANNER
ATTRIBUTED TO IT BY THE PETITIONERS.  FURTHER, THERE IS NO EVIDENCE
THAT THE PAST SENTENCING PRACTICES OF THE COURTS WERE EVER BROUGHT TO
THE ATTENTION OF CONGRESS.  THAT THE FEDERAL COURTS THEMSELVES HAVE NOT
CONSIDERED THEIR SENTENCING POWER TO BE RESTRICTED BY SEC. 24 OF THE
CLAYTON ACT OR BY SEC. 402 OF THE PRESENT CONTEMPT STATUTE IS INDICATED
BY THE FACT THAT IN AT LEAST NINE CASES SUBSEQUENT TO 1914, CONTEMPT
CONVICTIONS CARRYING SENTENCES OF MORE THAN ONE YEAR HAVE BEEN AFFIRMED
BY FOUR DIFFERENT COURTS OF APPEALS AND ON ONE OCCASION BY THIS COURT. 
(FN13) 

SUCH OF THE LEGISLATIVE HISTORY AS IS GERMANE HERE ARGUES AGAINST THE
PETITIONERS AND STRENGTHENS OUR CONCLUSIONS THAT THE "USAGES  ...  NOW
PREVAILING" CLAUSE OF SEC. 24 OF THE CLAYTON ACT DID NO MORE THAN
EMPHASIZE THAT CONTEMPTS OTHER THAN THOSE SPECIFIED IN SEC. 21 WERE TO
BE TRIED UNDER FAMILIAR CONTEMPT PROCEDURES, THAT IS, AMONG OTHER
THINGS, BY THE COURT RATHER THAN A JURY.  THE HOUSE REPORT ACCOMPANYING
THE BILL WHICH WAS SUBSTANTIALLY ENACTED AS SECS. 21, 22 AND 24 OF THE
CLAYTON ACT REFERRED TO THE PROVISIONS LATER FORMING THESE SECTIONS AS
DEALING "  ...  ENTIRELY WITH QUESTIONS OF FEDERAL PROCEDURE RELATING
TO INJUNCTIONS AND CONTEMPTS COMMITTED WITHOUT THE PRESENCE OF THE
COURT."  H.R. REP. NO. 627, 63D CONG., 2D SESS. 21.  THERE IS NO
EVIDENCE OF A BROADER PURPOSE TO ENACT SO SUBSTANTIAL A RULE OF
SUBSTANTIVE LAW ENCOMPASSING ALL CRIMINAL CONTEMPTS. 

WE ARE NEVERTHELESS URGED TO READ INTO SEC. 401 A ONE-YEAR LIMITATION
ON THE SENTENCING POWER IN ORDER TO AVOID CONSTITUTIONAL ISSUES WHICH
THE PETITIONERS DEEM PRESENT IN THE ABSENCE OF SUCH A RESTRICTION.  BUT
IN VIEW OF WHAT WE HAVE SHOWN, THE SECTION'S PROVISION THAT A FEDERAL
COURT MAY PUNISH "AT ITS DISCRETION" THE ENUMERATED CLASSES OF
CONTEMPTS CANNOT REASONABLY BE READ TO ALLOW A COURT MERELY THE CHOICE
BETWEEN FINES AND IMPRISONMENT.  WE THINK THE COURT OF APPEALS
CORRECTLY SAID:  "THE PHRASE 'AT ITS DISCRETION,' DOES NOT MEAN THAT
THE COURT MUST CHOOSE BETWEEN FINE AND IMPRISONMENT; THE WORD 'OR,'
ITSELF PROVIDES AS MUCH AND THE WORDS, IF SO CONSTRUED, WOULD HAVE BEEN
REDUNDANT.  THE TERM OF IMPRISONMENT IS TO BE AS MUCH IN THE COURT'S
DISCRETION AS THE FINE."  241 F.2D, AT 634. 

WE THEREFORE TURN TO PETITIONERS' CONSTITUTIONAL ARGUMENTS.  THE
CLAIM IS THAT PROCEEDINGS FOR CRIMINAL CONTEMPTS, IF CONTEMPTS ARE
SUBJECT TO PRISON TERMS OF MORE THAN ONE YEAR, MUST BE BASED ON GRAND
JURY INDICTMENTS UNDER THE CLAUSE OF THE FIFTH AMENDMENT PROVIDING: "NO
PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS
CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY  ...  ." 
SINCE AN "INFAMOUS CRIME" WITHIN THE MEANING OF THE AMENDMENT IS ONE
PUNISHABLE BY IMPRISONMENT IN A PENITENTIARY, MACKIN V. UNITED STATES,
117 U.S. 348, AND SINCE IMPRISONMENT IN A PENITENTIARY CAN BE IMPOSED
ONLY IF A CRIME IS SUBJECT TO IMPRISONMENT EXCEEDING ONE YEAR, 18
U.S.C. SEC. 4083, PETITIONERS ASSERT THAT CRIMINAL CONTEMPTS IF SUBJECT
TO SUCH PUNISHMENT ARE INFAMOUS CRIMES UNDER THE AMENDMENT. 

BUT THIS ASSERTION CANNOT BE CONSIDERED IN ISOLATION FROM THE GENERAL
STATUS OF CONTEMPTS UNDER THE CONSTITUTION, WHETHER SUBJECT TO
"INFAMOUS" PUNISHMENT OR NOT.  THE STATEMENTS OF THIS COURT IN A LONG
AND UNBROKEN LINE OF DECISIONS INVOLVING CONTEMPTS RANGING FROM
MISBEHAVIOR IN COURT TO DISOBEDIENCE OF COURT ORDERS ESTABLISH BEYOND
PERADVENTURE THAT CRIMINAL CONTEMPTS ARE NOT SUBJECT TO JURY TRIAL AS A
MATTER OF CONSTITUTIONAL RIGHT.  (FN14)  ALTHOUGH APPEARING TO
RECOGNIZE THIS, PETITIONERS NEVERTHELESS POINT OUT THAT PUNISHMENT FOR
CRIMINAL CONTEMPTS CANNOT IN ANY PRACTICAL SENSE BE DISTINGUISHED FROM
PUNISHMENT FOR SUBSTANTIVE CRIMES, SEE GOMPERS V. UNITED STATES, 233
U.S. 604, 610, AND THAT CONTEMPT PROCEEDINGS HAVE TRADITIONALLY BEEN
SURROUNDED WITH MANY OF THE PROTECTIONS AVAILABLE IN A CRIMINAL TRIAL. 
(FN15)  BUT THIS COURT HAS NEVER SUGGESTED THAT SUCH PROTECTIONS
INCLUDED THE RIGHT TO GRAND JURY INDICTMENT.  CF. SAVIN, PETITIONER,
131 U.S. 267, 278; GOMPERS V. UNITED STATES, SUPRA, AT 612.  AND OF
COURSE THE SUMMARY PROCEDURES FOLLOWED BY ENGLISH COURTS PRIOR TO
ADOPTION OF THE CONSTITUTION IN DEALING WITH MANY CONTEMPTS OF COURT
DID NOT EMBRACE THE USE OF EITHER GRAND OR PETIT JURY.  SEE 4
BLACKSTONE COMMENTARIES 283-287.  IT WOULD INDEED BE ANOMALOUS TO
CONCLUDE THAT CONTEMPTS SUBJECT TO SENTENCES OF IMPRISONMENT FOR OVER
ONE YEAR ARE "INFAMOUS CRIMES" UNDER THE FIFTH AMENDMENT ALTHOUGH THEY
ARE NEITHER "CRIMES" NOR "CRIMINAL PROSECUTIONS" FOR THE PURPOSE OF
JURY TRIAL WITHIN THE MEANING OF ART. III, SEC. 2, (FN16) AND THE SIXTH
AMENDMENT.  (FN17)    WE ARE TOLD HOWEVER THAT THE DECISIONS OF THIS
COURT DENYING THE RIGHT TO JURY TRIAL IN CRIMINAL CONTEMPT PROCEEDINGS
ARE BASED UPON AN "HISTORICAL ERROR" REFLECTING A MISUNDERSTANDING AS
TO THE SCOPE OF THE POWER OF ENGLISH COURTS AT THE EARLY COMMON LAW TO
TRY SUMMARILY FOR CONTEMPTS, AND THAT THIS ERROR SHOULD NOT HERE BE
EXTENDED TO A DENIAL OF THE RIGHT TO GRAND JURY.  BUT THE MORE RECENT
HISTORICAL RESEARCH INTO ENGLISH CONTEMPT PRACTICES PREDATING THE
ADOPTION OF OUR CONSTITUTION REVEALS NO SUCH CLEAR ERROR AND INDICATES
IF ANYTHING THAT THE PRECISE NATURE OF THOSE PRACTICES IS SHROUDED IN
MUCH OBSCURITY.  AND WHATEVER THE BREADTH OF THE HISTORICAL ERROR SAID
BY CONTEMPORARY SCHOLARSHIP TO HAVE BEEN COMMITTED BY ENGLISH COURTS OF
THE LATE SEVENTEENTH AND EIGHTEENTH CENTURIES IN THEIR INTERPRETATION
OF ENGLISH PRECEDENTS INVOLVING THE TRIALS OF CONTEMPTS OF COURT, IT AT
LEAST SEEMS CLEAR THAT ENGLISH PRACTICE BY THE EARLY EIGHTEENTH CENTURY
COMPREHENDED THE USE OF SUMMARY POWERS OF CONVICTION BY COURTS TO
PUNISH FOR A VARIETY OF CONTEMPTS COMMITTED WITHIN AND OUTSIDE COURT. 
(FN18)  SUCH INDEED IS THE STATEMENT OF ENGLISH LAW OF THIS PERIOD
FOUND IN BLACKSTONE, SUPRA, P. 184, WHO EXPLICITLY RECOGNIZED USE OF A
SUMMARY POWER BY ENGLISH COURTS TO DEAL WITH DISOBEDIENCE OF COURT
PROCESS.  IT IS NOTEWORTHY THAT THE JUDICIARY ACT OF 1789, FIRST
ATTEMPTING A DEFINITION OF THE CONTEMPT POWER, WAS ENACTED BY A
CONGRESS WITH A JUDICIARY COMMITTEE INCLUDING MEMBERS OF THE RECENT
CONSTITUTIONAL CONVENTION, WHO NO DOUBT SHARED THE PREVAILING VIEWS IN
THE AMERICAN COLONIES OF ENGLISH LAW AS EXPRESSED IN BLACKSTONE.  SEE
EX PARTE BURR, 4 FED. CAS. 791, 797 (NO. 2,186).  AGAINST THIS
HISTORICAL BACKGROUND, THIS COURT HAS NEVER DEVIATED FROM THE VIEW THAT
THE CONSTITUTIONAL GUARANTEE OF TRIAL BY JURY FOR "CRIMES" AND
"CRIMINAL PROSECUTIONS" WAS NOT INTENDED TO REACH TO CRIMINAL
CONTEMPTS.  AND INDEED BEGINNING WITH THE JUDICIARY ACT OF 1789,
CONGRESS HAS CONSISTENTLY PRESERVED THE SUMMARY NATURE OF THE CONTEMPT
POWER IN THE ACT OF 1831 AND ITS STATUTORY SUCCESSORS, DEPARTING FROM
THIS TRADITIONAL NOTION ONLY IN SPECIFIC INSTANCES WHERE IT HAS
PROVIDED FOR JURY TRIAL FOR CERTAIN CATEGORIES OF CONTEMPT.  (FN19) 

WE DO NOT WRITE UPON A CLEAN SLATE.  THE PRINCIPLE THAT CRIMINAL
CONTEMPTS OF COURT ARE NOT REQUIRED TO BE TRIED BY A JURY UNDER ARTICLE
III OR THE SIXTH AMENDMENT IS FIRMLY ROOTED IN OUR TRADITIONS.  INDEED,
THE PETITIONERS THEMSELVES HAVE NOT CONTENDED THAT THEY WERE ENTITLED
TO A JURY TRIAL.  BY THE SAME TOKEN IT IS CLEAR THAT CRIMINAL
CONTEMPTS, ALTHOUGH SUBJECT, AS WE HAVE HELD, TO SENTENCES OF
IMPRISONMENT EXCEEDING ONE YEAR, NEED NOT BE PROSECUTED BY INDICTMENT
UNDER THE FIFTH AMENDMENT.  IN VARIOUS RESPECTS, SUCH AS THE ABSENCE OF
A STATUTORY LIMITATION OF THE AMOUNT OF A FINE OR THE LENGTH OF A
PRISON SENTENCE WHICH MAY BE IMPOSED FOR THEIR COMMISSION, CRIMINAL
CONTEMPTS HAVE ALWAYS DIFFERED FROM THE USUAL STATUTORY CRIME UNDER
FEDERAL LAW.  AS TO TRIAL BY JURY AND INDICTMENT BY GRAND JURY, THEY
POSSESS A UNIQUE CHARACTER UNDER THE CONSTITUTION.  (FN20)

          IV. 

PETITIONERS CONTEND THAT THE THREE-YEAR SENTENCES IMPOSED UPON THEM
CONSTITUTED AN ABUSE OF DISCRETION ON THE PART OF THE DISTRICT COURT. 

WE TAKE THIS OCCASION TO REITERATE OUR VIEW THAT IN THE AREAS WHERE
CONGRESS HAS NOT SEEN FIT TO IMPOSE LIMITATIONS ON THE SENTENCING POWER
FOR CONTEMPTS THE DISTRICT COURTS HAVE A SPECIAL DUTY TO EXERCISE SUCH
AN EXTRAORDINARY POWER WITH THE UTMOST SENSE OF RESPONSIBILITY AND
CIRCUMSPECTION.  THE "DISCRETION" TO PUNISH VESTED IN THE DISTRICT
COURT BY SEC. 401 IS NOT AN UNBRIDLED DISCRETION.  APPELLATE COURTS
HAVE HERE A SPECIAL RESPONSIBILITY FOR DETERMINING THAT THE POWER IS
NOT ABUSED, TO BE EXERCISED IF NECESSARY BY REVISING THEMSELVES THE
SENTENCES IMPOSED.  THIS COURT HAS IN PAST CASES TAKEN PAINS TO
EMPHASIZE ITS CONCERN WITH THE USE TO WHICH THE SENTENCING POWER HAS
OCCASIONALLY BEEN PUT, BOTH BY REMANDING FOR RECONSIDERATION OF
CONTEMPT SENTENCES IN LIGHT OF FACTORS IT DEEMED IMPORTANT, SEE YATES
V. UNITED STATES, 355 U.S. 66; NILVA V. UNITED STATES, 352 U.S. 385,
AND BY ITSELF MODIFYING SUCH SENTENCES.  SEE UNITED STATES V. UNITED
MINE WORKERS, 330 U.S. 258.  THE ANSWER TO THOSE WHO SEE IN THE
CONTEMPT POWER A POTENTIAL INSTRUMENT OF OPPRESSION LIES IN ASSURANCE
OF ITS CAREFUL USE AND SUPERVISION, NOT IN IMPOSITION OF ARTIFICIAL
LIMITATIONS ON THE POWER. 

IT IS IN THIS LIGHT THAT WE HAVE CONSIDERED THE CLAIM THAT THE
SENTENCES HERE WERE SO EXCESSIVE AS TO AMOUNT TO AN ABUSE OF
DISCRETION.  WE ARE LED TO REJECT THE CLAIM UNDER THE FACTS OF THIS
CASE FOR THREE REASONS.  FIRST, THE CONTEMPT HERE WAS BY ANY STANDARDS
A MOST EGREGIOUS ONE.  PETITIONERS HAD BEEN ACCORDED A FAIR TRIAL ON
THE CONSPIRACY CHARGES AGAINST THEM AND HAD BEEN GRANTED BAIL PENDING
REVIEW OF THEIR CONVICTIONS BY THE COURT OF APPEALS AND THIS COURT. 
NEVERTHELESS THEY ABSCONDED, AND OVER FOUR AND HALF YEARS OF HIDING
CULMINATED NOT IN A BELATED RECOGNITION OF THE AUTHORITY OF THE COURT,
BUT IN PETITIONERS' REASSERTION OF JUSTIFICATION FOR DISOBEYING THE
SURRENDER ORDER.  SECOND, COMPARING THESE SENTENCES WITH THOSE IMPOSED
ON THE OTHER FUGITIVES IN THE DENNIS CASE, THE SENTENCES HERE ARE
SHORTER BY A YEAR THAN THAT UPHELD IN THE THOMPSON CASE, AND NO LONGER
THAN THAT INFLICTED IN THE HALL CASE.  IT IS TRUE THAT HALL AND
THOMPSON WERE APPREHENDED, BUT THE RECORD SHOWS THAT THE DISTRICT COURT
TOOK INTO ACCOUNT THE FACT THAT THE SURRENDER OF THESE PETITIONERS WAS
VOLUNTARY; THERE IS THE FURTHER FACTOR THAT THE PERIOD DURING WHICH
PETITIONERS REMAINED FUGITIVES WAS LONGER THAN THAT IN EITHER THE HALL
OR THOMPSON CASE.  THIRD, THE SENTENCES WERE WELL WITHIN THE MAXIMUM
FIVE-YEAR IMPRISONMENT FOR BAIL-JUMPING PROVIDED NOW BY 18 U.S.C. SEC.
3146, A STATUTE IN WHICH CONGRESS SAW FIT EXPRESSLY TO PRESERVE THE
CONTEMPT POWER WITHOUT ENACTING ANY LIMITATION ON CONTEMPT SENTENCES. 

IN THESE CIRCUMSTANCES WE CANNOT SAY THAT THE SENTENCES IMPOSED WERE
BEYOND THE BOUNDS OF THE REASONABLE EXERCISE OF THE DISTRICT COURT'S
DISCRETION.  AFFIRMED. 

FN1  THIS RULE PROVIDES THAT CRIMINAL CONTEMPTS OTHER THAN THOSE
COMMITTED IN THE ACTUAL PRESENCE OF THE COURT AND SEEN OR HEARD BY THE
COURT SHALL BE PROSECUTED ON NOTICE.  NOTICE MAY BE GIVEN, AS IN THE
PRESENT CASE, BY AN ORDER TO SHOW CAUSE.  THE RULE STATES THAT A
DEFENDANT IS ENTITLED TO TRIAL BY JURY IF AN ACT OF CONGRESS SO
PROVIDES.  SEE NOTE 19, INFRA. 

FN2  THE DEBATES CONDUCTED IN 1830-1831 BY LEADING COUNSEL OF THAT
PERIOD DURING THE IMPEACHMENT PROCEEDINGS AGAINST JUDGE JAMES H. PECK,
SEE P. 171, INFRA, CONTAINED DISCUSSIONS OF THE ACT OF 1789, AND THE
LIMITATIONS TO BE IMPOSED UPON IT, WHICH WERE CAST LARGELY IN TERMS OF
THE ENGLISH COMMON LAW PRECEDING ITS ENACTMENT.  SEE STANSBURY, REPORT
OF THE TRIAL OF JAMES H. PECK (1833). 

FN3  DURING THE DEBATES IN 1830-1831 REFERRED TO IN NOTE 2, SUPRA,
SEVERAL OF THE MANAGERS WHO ARGUED THAT JUDGE PECK HAD EXCEEDED THE
HISTORICAL BOUNDARIES OF THE CONTEMPT POWER BY THE CONDUCT WHICH HAD
PROVOKED THE IMPEACHMENT PROCEEDINGS (SEE P. 171, INFRA) APPEAR TO HAVE
ASSUMED THAT COURTS WERE HISTORICALLY JUSTIFIED IN EMPLOYING THE
CONTEMPT POWER TO DEAL WITH DISOBEDIENCE TO COURT PROCESS.  SEE
STANSBURY, SUPRA, NOTE 2, AT 313, 395-396, 436, 444. 

FN4  SEE, E.G., IN RE MICHAEL, 326 U.S. 224, NYE V. UNITED STATES,
313 U.S. 33, AND EX PARTE HUDGINGS, 249 U.S. 378, ALL CONCERNING THE
PREDECESSOR STATUTES TO PRESENT SEC.  401(1), WHICH RELATES TO
MISBEHAVIOR IN COURT OR SO NEAR THERETO AS TO OBSTRUCT THE
ADMINISTRATION OF JUSTICE, AND CAMMER V. UNITED STATES, 350 U.S. 399,
ARISING UNDER SEC. 401(2), WHICH DEALS WITH MISBEHAVIOR OF COURT
OFFICERS IN THEIR OFFICIAL TRANSACTIONS. 

FN5  THIS ORDER CAN HARDLY BE INTERPRETED OTHERWISE THAN AS IMPOSING
ON THE DENNIS DEFENDANTS FROM THE TIME THAT THE ORDER BECAME EFFECTIVE
ON JULY 2 A CONTINUING OBLIGATION TO SURRENDER PROMPTLY UPON BECOMING
AWARE OF ITS EFFECTIVENESS.  THE PRINTED RECORD BEFORE US INDICATES
THAT THE PROPOSED ORDER GIVEN COUNSEL ON JUNE 28 READ PRECISELY IN THE
FORM QUOTED IN THE TEXT ABOVE, BUT THE ORIGINAL COPY OF THE ORDER
REVEALS THAT THE TIME FOR SURRENDER WAS FIRST WRITTEN AS "10:30" A.M.,
AND AT SOME LATER TIME PRIOR TO THE TIME THE ORDER WAS SIGNED WAS
CHANGED TO READ "11:05."  PETITIONERS MAKE NO ISSUE OF THIS
DISCREPANCY, AND WE ATTACH NO SIGNIFICANCE TO IT. 

FN6  THE EVENTS OF JUNE 29, 1951, WERE TESTIFIED TO IN COURT ON JULY
3, 1951, BY PETITIONERS' COUNSEL, MESSRS.  SACHER AND ISSERMAN.  BY
STIPULATION, A TRANSCRIPT OF THIS TESTOMONY WAS INTRODUCED INTO
EVIDENCE DURING THE CONTEMPT PROCEEDINGS IN THE DISTRICT COURT, AND
EXCERPTS FROM THE TESTIMONY FOLLOW: 

THE COURT:  "NOW, YOU DID MAKE A STATEMENT LAST WEEK THAT YOU WILL
HAVE THE FOUR DEFENDANTS (GREEN, WINSTON, HALL AND THOMPSON) IN COURT,
AS I RECALL, ON MONDAY (JULY 2). 

"MR. SACHER:  I SAID THAT ALL OF THEM WOULD BE HERE. 

     *         *   *         *         * 

"THE COURT:  AND AS YOU KNOW, FOUR OF THEM WERE NOT HERE ON MONDAY. 
OF COURSE, YOU MAY BE BOUND BY SOME OBLIGATION OF ATTORNEY AND CLIENT,
BUT ARE YOU ABLE TO GIVE THE COURT ANY INFORMATION AS TO THEIR PRESENT
WHEREABOUTS? 

"MR. SACHER:  YOUR HONOR, I SHOULD CONSIDER MYSELF NOT BOUND BY ANY
OBLIGATION TO WITHHOLD ANY INFORMATION THAT I MIGHT HAVE, AND I GIVE
YOUR HONOR MY ASSURANCE THAT I HAVE NO KNOWLEDGE, I HAVE NO BASIS OF
KNOWLEDGE AS TO THEIR PRESENT WHEREABOUTS OR WHERE THEY MIGHT HAVE
GONE. 

"THE COURT:  WHERE DID YOU LAST SEE THESE FOUR DEFENDANTS? 

     *         *         *         *         * 

"MR. SACHER:  ...  I AM NOT CERTAIN ABOUT THOMPSON, BUT I AM FAIRLY
CERTAIN THAT I SAW THE THREE I MENTIONED SOMETIME ON FRIDAY (JUNE 29)
AT 35 EAST TWELFTH STREET. 

"THE COURT:  DID YOU TELL THEM AT THAT TIME THAT THEIR PRESENCE WAS
REQUIRED IN COURT YESTERDAY MORNING? 

"MR. SACHER:  DEFINITELY.  AS A MATTER OF FACT I ADVISED THAT BECAUSE
I THINK I SAW THEM AMONG OTHER DEFENDANTS AFTER I HAD BEEN HERE ON
FRIDAY, YOUR HONOR, AND HAD MADE THESE MOTIONS (APPARENTLY REFERRING TO
COUNSEL'S EFFORTS TO POSTPONE THE SURRENDER DATE UNTIL AFTER JULY 4),
AND THEREFORE I ADVISED THAT THEY ALL SHOULD BE PRESENT AND I WAS
ASSURED THEY WOULD BE. 

     *         *         *         *         * 

"THE COURT:  MR. ISSERMAN, DO YOU KNOW WHERE ANY OF THESE DEFENDANTS
ARE? 

"MR. ISSERMAN:  I MIGHT SAY TO THE COURT THAT I WOULD NOT REST ON
PRIVILEGE IN THIS SITUATION AT ALL.  I HAVE NO KNOWLEDGE OF THE PRESENT
WHEREABOUTS OF ANY OF THESE DEFENDANTS  ...  .  I REMEMBER, GREEN BEING
MY CLIENT, I REMEMBER DISTINCTLY THAT I SAW HIM ON THAT DAY (JUNE 29)
AND RECEIVED FROM HIM THE ASSURANCE THAT HE WOULD BE HERE MONDAY
MORNING (JULY 2)." 

FN7  EXCERPTS FROM GREEN'S PRESS RELEASE: 

"ON MONDAY, FEBRUARY 27TH AT 12 NOON I SHALL CEASE BEING A FUGITIVE
FROM INJUSTICE AND INSTEAD BECOME ITS PRISONER.  AT THAT TIME, I SHALL
APPEAR AT FOLEY SQUARE  ...  .  THE COURSE I CHOSE FIVE YEARS AGO WAS
NOT DICTATED BY PERSONAL CONSIDERATIONS.  IN MANY WAYS IT WAS HARSHER
THAN THAT OF IMPRISONMENT  ...  .  IT SEEMED INCUMBENT UPON ME TO
RESIST THAT TREND (I.E. TO 'AN AMERICAN BRAND OF FASCISM') WITH EVERY
OUNCE OF STRENGTH I POSSESSED.  SOME COULD DO SO BY GOING TO JAIL;
OTHERS BY NOT  ...  .  I ENTER PRISON WITH HEAD HIGH AND CONSCIENCE
CLEAR." 

EXCERPTS FROM WINSTON'S PRESS RELEASE: 

"REITERATING MY INNOCENCE, AND PROTESTING THE FLAGRANT MISCARRIAGE OF
JUSTICE IN MY CASE, I NOW ENTER PRISON  ...  .  I SHALL APPEAR THIS
COMING MONDAY, MARCH 5TH, 12:30 P.M., AT THE U.S. MARSHAL'S OFFICE IN
FOLEY SQUARE." 

FN8  THE SUBSTANCE OF SECS. 21 AND 22 WAS THAT ONE CHARGED WITH THE
COMMISSION OF ACTS CONSTITUTING WILLFUL DISOBEDIENCE TO A LAWFUL COURT
ORDER COULD DEMAND A TRIAL BY JURY IF (SEC. 21) "  ...  THE ACT OR
THING SO DONE BY HIM BE OF SUCH CHARACTER AS TO CONSTITUTE ALSO A
CRIMINAL OFFENSE UNDER ANY STATUTE OF THE UNITED STATES, OR UNDER THE
LAWS OF ANY STATE IN WHICH THE ACT WAS COMMITTED  ...  ."  SECTION 22
PROVIDED THAT THE JURY TRIAL "  ...  SHALL CONFORM, AS NEAR AS MAY BE,
TO THE PRACTICE IN CRIMINAL CASES PROSECUTED BY INDICTMENT OR UPON
INFORMATION." 

FN9  THIS SECTION EXCLUDED FROM THE ACT, INTER ALIA, CONTEMPTS
COMMITTED BY DISOBEDIENCE TO ANY COURT ORDER ENTERED IN ANY SUIT OR
ACTION "  ...  BROUGHT OR PROSECUTED IN THE NAME OF, OR ON BEHALF OF,
THE UNITED STATES  ...  ." 

FN10  AT THE PRESENT TIME, 18 U.S.C. SEC. 402 CONTAINS THE
DEFINITIONAL PROVISION FORMERLY IN SEC. 21 OF THE CLAYTON ACT AND
EXPRESSLY REFERS TO 18 U.S.C. SEC. 3691, WHICH PROVIDES THAT CONTEMPTS
FALLING WITHIN THIS DEFINITION ARE SUBJECT TO TRIAL BY JURY. 

FN11  PETITIONERS HAVE SHOWN US NO FEDERAL DECISION WHICH INTIMATES
ANY CONSTITUTIONAL OR COMMON-LAW RESTRICTION ON THE POWER OF FEDERAL
COURTS TO SENTENCE FOR OVER ONE YEAR.  AS STATED BY THE COURT OF
APPEALS IN THE PRESENT CASE, 241 F.2D, AT 634, "  ...  THERE IS NOT IN
THE BOOKS A SYLLABLE OF RECOGNITION OF ANY SUCH SUPPOSED LIMITATION." 
UNDER ENGLISH LAW CONTEMPT SENTENCES WERE NOT SUBJECT TO ANY STATUTORY
LIMIT.  SEE FOX, ECCENTRICITIES OF THE LAW OF CONTEMPT OF COURT, 36
L.Q. REV. 394, 398.    FN12  SEE P. 182, INFRA. 

FN13  HILL V. UNITED STATES EX REL. WEINER, 300 U.S. 105; UNITED
STATES V. BROWN, 247 F.2D 332 (2D CIR.); LOPIPARO V. UNITED STATES, 216
F.2D 87 (8TH CIR.); UNITED STATES V. THOMPSON, 214 F.2D 545 (2D CIR.);
UNITED STATES V. HALL, 198 F.2D 726 (2D CIR.); UNITED STATES EX REL.
BROWN V. LEDERER, 140 F.2D 136 (7TH CIR.); WARRING V. HUFF, 74 U.S.
APP.  D.C. 302, 122 F.2D 641 (D.C. CIR.); CONLEY V. UNITED STATES, 59
F.2D 929 (8TH CIR.); CREEKMORE V. UNITED STATES, 237 F. 743 (8TH
CIR.). 

FN14  THE FOLLOWING ARE THE MAJOR OPINIONS OF THIS COURT WHICH HAVE
DISCUSSED THE RELATIONSHIP BETWEEN CRIMINAL CONTEMPTS AND JURY TRIAL
AND HAVE CONCLUDED OR ASSUMED THAT CRIMINAL CONTEMPTS ARE NOT SUBJECT
TO JURY TRIAL UNDER ART. III, SEC. 2, OR THE SIXTH AMENDEMNT:  SAVIN,
PETITIONER, 131 U.S. 267, 278; EILENBECKER V. DISTRICT COURT OF
PLYMOUTH COUNTY, 134 U.S. 31, 36-39; INTERSTATE COMMERCE COMMISSION V.
BRIMSON, 154 U.S. 447, 489; IN RE DEBS, 158 U.S. 564, 594-596; BESSETTE
V. W.B. CONKEY CO., 194 U.S. 324, 336-337; GOMPERS V. UNITED STATES,
233 U.S. 604, 610-611; EX PARTE HUDGINGS, 249 U.S. 378, 383; MICHAELSON
V. UNITED STATES, 266 U.S. 42, 67; UNITED STATES V. UNITED MINE
WORKERS, 330 U.S. 258, 298.  ALTHOUGH THE STATEMENTS CONTAINED IN THESE
CASES, WITH FEW EXCEPTIONS, ARE BROADLY PHRASED AND DO NOT REFER TO
PARTICULAR CATEGORIES OF CRIMINAL CONTEMPTS, SEVERAL OF THE CASES
INVOLVED REVIEW OF CONTEMPT CONVICTIONS ARISING OUT OF DISOBEDIENCE TO
COURT ORDERS.  SEE IN PARTICULAR IN RE DEBS, GOMPERS V. UNITED STATES,
AND UNITED STATES V. UNITED MINE WORKERS. 

FOR MORE GENERAL STATEMENTS OF THE NATURE OF THE CONTEMPT POWER AND
ITS INDESPENSABILITY TO FEDERAL COURTS, SEE UNITED STATES V. HUDSON, 7
CRANCH 32, 34; EX PARTE ROBINSON, 19 WALL.  505, 510; EXPARTE TERRY,
128 U.S. 289, 302-304; BESSETTE V. W.B. CONKEY CO., SUPRA, AT 326;
MYERS V. UNITED STATES, 264 U.S. 95, 103; MICHAELSON V. UNITED STATES,
SUPRA, AT 65-66. 

FN15  SEE, E.G., COOKE V. UNITED STATES, 267 U.S. 517, 537
(COMPULSORY PROCESS AND ASSISTANCE OF COUNSEL); GOMPERS V. UNITED
STATES, 233 U.S. 604, 611-612 (BENEFIT OF A STATUTE OF LIMITATIONS
GENERALLY GOVERNING CRIMES); GOMPERS V. BUCKS STOVE & RANGE CO., 221
U.S. 418, 444 (PROOF OF GUILT BEYOND A REASONABLE DOUBT AND FREEDOM
FROM COMPULSION TO TESTIFY). 

FN16  "THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL
BY BY JURY  ...  ." 

FN17  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE
RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE
AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED ...  ." 

FN18  PETITIONERS DERIVE THEIR ARGUMENT AS TO HISTORICAL ERROR FROM
THE WRITINGS OF SIR JOHN CHARLES FOX.  HOWEVER, FOX'S MAJOR EFFORT WAS
TO SHOW THAT A STATEMENT IN AN UNPUBLISHED OPINION BY WILMOT, J., IN
THE KING V. ALMON (1765), TO THE EFFECT THAT SUMMARY PUNISHMENT FOR
CONTEMPTS COMMITTED OUT OF COURT STOOD UPON "IMMEMORIAL USAGE," WAS
BASED ON AN ERRONEOUS INTERPRETATION OF EARLIER LAW AS APPLIED TO THE
CASE BEFORE HIM, NAMELY, CONTEMPT BY LIBEL ON THE COURT BY A STRANGER
TO COURT PROCEEDINGS.  SEE FOX, THE KING V. ALMON (PARTS I AND II), 24
L.Q. REV. 184, 266; FOX, THE HISTORY OF CONTEMPT OF COURT (1927), 5
43.  THAT CONTEMPTS COMMITTED IN THE VIEW OF THE COURT WERE AT AN EARLY
DATE DEALT WITH SUMMARILY IS NOT DISPUTED BY FOX.  THE HISTORY OF
CONTEMPT OF COURT, SUPRA, AT 50.  INSOFAR AS FOX DISCUSSES CONTEMPTS
OUT OF COURT BY DISOBEDIENCE TO COURT ORDERS, IT IS NOT CLEAR WHETHER
THE AUTHOR CONTENDS THAT SUCH CONTEMPTS WERE TRIED AT EARLY ENGLISH LAW
UNDER SUMMARY PROCEDURES ONLY FOR CIVIL COERCIVE PURPOSES, OR FOR
CRIMINAL, PUNITIVE PURPOSES AS WELL.  CF. THE KING V. ALMON, SUPRA, AT
188, 277-278; AND FOX, THE SUMMARY PROCESS TO PUNISH CONTEMPT (PARTS I
AND II), 25 L.Q. REV. 238, 354, WITH THE KING V. ALMON, AT 195, 276;
THE SUMMARY PROCESS TO PUNISH CONTEMPT, AT 249; AND THE HISTORY OF
CONTEMPT OF COURT, SUPRA, AT 108-110.  SEE ALSO BEALE, CONTEMPT OF
COURT, 21 HARV. L. REV. 161, 164, 169-171.  FOX CONCLUDES THAT BY THE
MID-SEVENTEENTH OR EARLY EIGHTEENTH CENTURY, A VARIETY OF CONTEMPTS
COMMITTED OUTSIDE OF COURT WERE SUBJECT TO PUNISHMENT BY THE EXERCISE
OF A COURT'S SUMMARY JURISDICTION.  THE SUMMARY PROCESS TO PUNISH
CONTEMPTS, SUPRA, AT 252, 366, 370-371.  IT APPEARS THAT UNDER PRESENT
ENGLISH LAW DISOBEDIENCE TO COURT PROCESS IS BUT ONE OF THE MANY
CATEGORIES OF CONTEMPTS OF COURT WHICH ARE DEALT WITH SUMMARILY.  8
HALSBURY, LAWS OF ENGLAND (3D ED. 1954), 3-4, 25-26; 1 RUSSELL, CRIME
(10TH ED. 1950), 329-330. 

FN19 SEE 18 U.S.C. SEC. 402, SUPRA, NOTE 10; 18 U.S.C. SEC. 3692
(JURY TRIAL FOR CONTEMPTS BASED ON VIOLATION OF INJUNCTIONS IN CASES
INVOLVING LABOR DISPUTES); SEC. 151, 71 STAT.  638, 42 U.S.C.A. SEC.
1995 (RIGHT TO JURY TRIAL UNDER PROVISIONS OF THE CIVIL RIGHTS ACT OF
1957 IN LIMITED CIRCUMSTANCES IN CASES OF CRIMINAL CONTEMPTS). 

FN20  THIS HOLDING MAKES UNNECESSARY CONSIDERATION OF PETITIONERS'
ARGUMENT BASED ON RULE 7 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE,
WHICH FALLS WITH THEIR CONSTITUTIONAL ARGUMENT.  RULE 7 REFERS TO
CRIMINAL OFFENSE, THAT IS "CRIMES" IN THE CONSTITUTIONAL SENSE. 
CRIMINAL CONTEMPTS ARE GOVERNED BY RULE 42. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IN JOINING THE COURT'S OPINION I DEEM IT APPROPRIATE TO ADD A FEW
OBSERVATIONS.  LAW IS A SOCIAL ORGANISM, AND EVOLUTION OPERATES IN THE
SOCIOLOGICAL DOMAIN NO LESS THAN IN THE BIOLOGICAL.  THE VITALITY AND
THEREFORE VALIDITY OF LAW IS NOT ARRESTED BY THE CIRCUMSTANCES OF ITS
ORIGIN.  WHAT MAGNA CARTA HAS BECOME IS VERY DIFFERENT INDEED FROM THE
IMMEDIATE OBJECTS OF THE BARONS AT RUNNYMEDE.  THE FACT THAT
SCHOLARSHIP HAS SHOWN THAT HISTORICAL ASSUMPTIONS REGARDING THE
PROCEDURE FOR PUNISHMENT OF CONTEMPT OF COURT WERE ILL-FOUNDED, HARDLY
WIPES OUT A CENTURY AND A HALF OF THE LEGISLATIVE AND JUDICIAL HISTORY
OF FEDERAL LAW BASED ON SUCH ASSUMPTIONS.  MOREOVER, THE MOST
AUTHORITATIVE STUDENT OF THE HISTORY OF CONTEMPT OF COURT HAS
IMPRESSIVELY SHOWN THAT "FROM THE REIGN OF EDWARD I IT WAS ESTABLISHED
THAT THE COURT HAD POWER TO PUNISH SUMMARILY CONTEMPT COMMITTED  ...
IN THE ACTUAL VIEW OF THE COURT."  FOX, HISTORY OF CONTEMPT OF COURT,
49-52. 

WHATEVER THE CONFLICTING VIEWS OF SCHOLARS IN CONSTRUING MORE OR LESS
DUBIOUS MANUSCRIPTS OF THE FOURTEENTH CENTURY, WHAT IS INDISPUTABLE IS
THAT FROM THE FOUNDATION OF THE UNITED STATES THE CONSTITUTIONALITY OF
THE POWER TO PUNISH FOR CONTEMPT WITHOUT THE INTERVENTION OF A JURY HAS
NOT BEEN DOUBTED.  THE FIRST JUDICIARY ACT CONFERRED SUCH A POWER ON
THE FEDERAL COURTS IN THE VERY ACT OF THEIR ESTABLISHMENT, 1 STAT. 73,
83, AND OF THE JUDICIARY COMMITTEE OF EIGHT THAT REPORTED THE BILL TO
THE SENATE, FIVE MEMBERS INCLUDING THE CHAIRMAN, SENATOR, LATER TO BE
CHIEF JUSTICE, ELLSWORTH, HAD BEEN DELEGATES TO THE CONSTITUTIONAL
CONVENTION.  (FN1)  IN THE FIRST CONGRESS ITSELF NO LESS THAN NINETEEN
MEMBERS, INCLUDING MADISON WHO CONTEMPORANEOUSLY INTRODUCED THE BILL OF
RIGHTS, HAD BEEN DELEGATES TO THE CONVENTION.  AND WHEN AN ABUSE UNDER
THIS POWER MANIFESTED ITSELF, AND LED CONGRESS TO DEFINE MORE
EXPLICITLY THE SUMMARY POWER VESTED IN THE COURTS, IT DID NOT REMOTELY
DENY THE EXISTENCE OF THE POWER BUT MERELY DEFINED THE CONDITIONS FOR
ITS EXERCISE MORE CLEARLY, IN AN ACT "DECLARATORY OF THE LAW CONCERNING
CONTEMPTS OF COURT."  ACT OF MAR. 2, 1831, 4 STAT.  487.  ALTHOUGH THE
JUDGE WHO HAD MISUSED THE POWER WAS IMPEACHED, AND CONGRESS DEFINED THE
POWER MORE CLEARLY, NEITHER THE PROPONENTS OF THE REFORM NOR CONGRESS
IN ITS CORRECTIVE LEGISLATION SUGGESTED THAT THE ESTABLISHED LAW BE
CHANGED BY MAKING THE JURY PART OF THE PROCEDURE FOR THE PUNISHMENT OF
CRIMINAL CONTEMPT.  THIS IS MORE SIGNIFICANT IN THAT SUCH A PROPOSAL
HAD ONLY RECENTLY BEEN PUT BEFORE CONGRESS AS PART OF THE DRAFT PENAL
CODE OF EDWARD LIVINGSTON OF LOUISIANA. 

NOR HAS THE CONSTITUTIONALITY OF THE POWER BEEN DOUBTED BY THIS COURT
THROUGHOUT ITS EXISTENCE.  IN AT LEAST TWO SCORE CASES IN THIS COURT,
NOT TO MENTION THE VAST MASS OF DECISIONS IN THE LOWER FEDERAL COURTS,
THE POWER TO PUNISH SUMMARILY HAS BEEN ACCEPTED WITHOUT QUESTION. 
(FN2)  IT IS RELEVANT TO CALL THE ROLL OF THE JUSTICES, NOT INCLUDING
THOSE NOW SITTING, WHO THUS SUSTAINED THE EXERCISE OF THIS POWER: 

WASHINGTON   GRAY          PITNEY 

MARSHALL     BLATCHFORD    MCREYNOLDS 

JOHNSON      L.Q.C. LAMAR  BRANDEIS 

LIVINGSTON   FULLER        CLARK 

TODD         BREWER    TAFT 

STORY        BROWN         SUTHERLAND 

DUVAL     SHIRAS        BUTLER 

CLIFFORD     H.E. JACKSON  SANFORD 

SWAYNE       WHITE         STONE 

MILLER       PECKHAM       ROBERTS 

DAVIS        MCKENNA       CARDOZO 

FIELD        HOLMES        REED 

STRONG       DAY           MURPHY 

BRADLEY      MOODY         R.H. JACKSON 

HUNT         LURTON        RUTLEDGE 

WAITE        HUGHES        VINSON 

HARLAN       VAN DEVANTER  MINTON (FN3) 

MATTHEWS     J.R. LAMAR 

TO BE SURE, IT IS NEVER TOO LATE FOR THIS COURT TO CORRECT A
MISCONCEPTION IN AN OCCASIONAL DECISION, EVEN ON A RARE OCCASION TO
CHANGE A RULE OF LAW THAT MAY HAVE LONG PERSISTED BUT ALSO HAVE LONG
BEEN QUESTIONED AND ONLY FLUCTUATINGLY APPLIED.  TO SAY THAT EVERYBODY
ON THE COURT HAS BEEN WRONG FOR 150 YEARS AND THAT THAT WHICH HAS BEEN
DEEMED PART OF THE BONE AND SINEW OF THE LAW SHOULD NOW BE EXTIRPATED
IS QUITE ANOTHER THING.  DECISION-MAKING IS NOT A MECHANICAL PROCESS,
BUT NEITHER IS THIS COURT AN ORIGINATING LAWMAKER.  THE ADMONITION OF
MR. JUSTICE BRANDEIS THAT WE ARE NOT A THIRD BRANCH OF THE LEGISLATURE
SHOULD NEVER BE DISREGARDED.  CONGRESS HAS SEEN FIT FROM TIME TO TIME
TO QUALIFY THE POWER OF SUMMARY PUNISHMENT FOR CONTEMPT THAT IT GAVE
THE FEDERAL COURTS IN 1789 BY REQUIRING IN EXPLICITLY DEFINED
SITUATIONS THAT A JURY BE ASSOCIATED WITH THE COURT IN DETERMINING
WHETHER THERE HAS BEEN A CONTEMPT.  SEE, E.G., 18 U.S.C. SEC. 3691;
CIVIL RIGHTS ACT OF 1957, 71 STAT.  634, 638, 42 U.S.C.A. SEC. 1995. 
IT IS FOR CONGRESS TO EXTEND THIS PARTICIPATION OF THE JURY, WHENEVER
IT SEES FIT TO DO SO, TO OTHER INSTANCES OF THE EXERCISE OF THE POWER
TO PUNISH FOR CONTEMPT.  IT IS NOT FOR THIS COURT TO FASHION A WHOLLY
NOVEL CONSTITUTIONAL DOCTRINE THAT WOULD REQUIRE SUCH PARTICIPATION
WHATEVER CONGRESS MAY THINK ON THE MATTER, AND IN THE TEETH OF AN
UNBROKEN LEGISLATIVE AND JUDICIAL HISTORY FROM THE FOUNDATION OF THE
NATION.  (FN4) 

FN1  OLIVER ELLSWORTH, CHAIRMAN, WILLIAM PATERSON, CALEB STRONG,
RICHARD BASSETT, WILLIAM FEW.  1 ANNALS OF CONG. 17. 

FN2  EX PARTE KEARNEY, 7 WHEAT.  38; IN RE CHILES, 22 WALL.  157; EX
PARTE TERRY, 128 U.S. 289; IN RE SAVIN, 131 U.S. 267; IN RE CUDDY, 131
U.S. 280; IN RE SWAN, 150 U.S. 637; IN RE DEBS, 158 U.S. 564; BROWN V.
WALKER, 161 U.S. 591; IN RE LENNON, 166 U.S. 548; BESSETTE V. W.B.
CONKEY CO., 194 U.S. 324; NELSON V. UNITED STATES, 201 U.S. 92; UNITED
STATES V. SHIPP, 203 U.S. 563, 214 U.S. 386; EX PARTE YOUNG, 209 U.S.
123; TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402; BLAIR V.
UNITED STATES, 250 U.S. 273; CRAIG V. HECHT, 263 U.S. 255; BROWN V.
UNITED STATES, 276 U.S. 134; SINCLAIR V. UNITED STATES, 279 U.S. 749;
BLACKMER V. UNITED STATES, 284 U.S. 421; CLARK V. UNITED STATES, 289
U.S. 1; UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258; ROGERS V.
UNITED STATES, 340 U.S. 367; SACHER V. UNITED STATES, 343 U.S. 1; NILVA
V. UNITED STATES, 352 U.S. 385; YATES V. UNITED STATES, 355 U.S. 66. 

IN THE FOLLOWING CASES THE COURT, ALTHOUGH REFUSING TO SUSTAIN
CONTEMPT CONVICTIONS FOR OTHER REASONS, TOOK FOR GRANTED TRIAL BY THE
COURT WITHOUT A JURY; EX PARTE ROBINSON, 19 WALL.  505; IN RE BURRUS,
136 U.S. 586; WILSON V. NORTH CAROLINA, 169 U.S. 586; IN RE WATTS, 190
U.S. 1; BAGLIN V. CUSENIER CO., 221 U.S. 580; GOMPERS V. BUCKS STOVE &
RANGE CO., 221 U.S. 418; EX PARTE HUDGINGS, 249 U.S. 378; COOKE V.
UNITED STATES, 267 U.S. 517; NYE V. UNITED STATES, 313 U.S. 33;
PENDERGAST V. UNITED STATES, 317 U.S. 412; UNITED STATES V. WHITE, 322
U.S. 694; IN RE MICHAEL., 326 U.S. 224; BLAU V. UNITED STATES, 340 U.S.
332; HOFFMAN V. UNITED STATES, 341 U.S. 479; CAMMER V. UNITED STATES,
350 U.S. 399. 

THE MATERIALS ON THE BASIS OF WHICH THIS UNBROKEN COURSE OF
ADJUDICATION IS PROPOSED TO BE REVERSED HAVE IN FACT BEEN KNOWN IN THIS
COUNTRY FOR ALMOST HALF A CENTURY AND WERE AVAILABLE TO THE JUSTICES
WHO PARTICIPATED IN MANY OF THESE DECISIONS.  THE FIRST OF THE STUDIES
OF CRIMINAL CONTEMPT BY SIR JOHN CHARLES FOX, THE KING V. ALMON, 24 LAW
Q. REV. 184, APPEARED IN 1908, AND THE RESULTS OF THE RESEARCH OF SOLLY
FLOOD WERE PUBLISHED AS EARLY AS 1886.  THE STORY OF PRINCE HENRY OF
MONMOUTH AND CHIEF-JUSTICE GASCOIGN, 3 TRANSACTIONS OF THE ROYAL
HISTORICAL SOCIETY (N.S.)  47.  MR. JUSTICE HOLMES, WRITING FOR THE
COURT IN GOMPERS V. UNITED STATES, 233 U.S. 604 (1914), NOTED THE WORK
OF SOLLY-FLOOD.  HE OBSERVED THAT:  "IT DOES NOT FOLLOW THAT CONTEMPTS
OF THE CLASS UNDER CONSIDERATION ARE NOT CRIMES, OR RATHER, IN THE
LANGUAGE OF THE STATUTE, OFFENSES, BECAUSE TRIAL BY JURY AS IT HAS BEEN
GRADUALLY WORKED OUT AND FOUGHT OUT HAS BEEN THOUGHT NOT TO EXTEND TO
THEM AS A MATTER OF CONSTITUTIONAL RIGHT.  THESE CONTEMPTS ARE
INFRACTIONS OF THE LAW, VISITED WITH PUNISHMENT AS SUCH.  IF SUCH ACTS
ARE NOT CRIMINAL, WE ARE IN ERROR AS TO THE MOST FUNDAMENTAL
CHARACTERISTIC OF CRIMES AS THAT WORD HAS BEEN UNDERSTOOD IN ENGLISH
SPEECH.  SO TRULY ARE THEY CRIMES THAT IT SEEMS TO BE PROVED THAT IN
THE EARLY LAW THEY WERE PUNISHED ONLY BY THE USUAL CRIMINAL PROCEDURE,
3 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY, N.S. P. 147 (1885), AND
THAT AT LEAST IN ENGLAND IT SEEMS THAT THEY STILL MAY BE AND PREFERABLY
ARE TRIED IN THAT WAY."  233 U.S., AT 610-611. 

FN3  BEGINNING WITH EX PARTE ROBINSON, 19 WALL.  505, AND IN RE
CHILES, 22 WALL.  157, THIS LIST INCLUDES EVERY JUSTICE WHO SAT ON THE
COURT SINCE 1874, WITH THE EXCEPTION OF MR. JUSTICE WOODS (1881-1887),
AND MR. JUSTICE BYRNES (1941-1942).    FN4  "WE DO NOT WRITE ON A BLANK
SHEET.  THE COURT HAS ITS JURISPRUDENCE, THE HELPFUL REPOSITORY OF THE
DELIBERATE AND EXPRESSED CONVICTIONS OF GENERATIONS OF SINCERE MINDS
ADDRESSING THEMSELVES TO EXPOSITION AND DECISION, NOT WITH THE FREEDOM
OF CASUAL CRITICS OR EVEN OF STUDIOUS COMMENTATORS, BUT UNDER THE
PRESSURE AND WITHIN THE LIMITS OF A DEFINITE OFFICIAL RESPONSIBILITY." 
CHIEF JUSTICE HUGHES SPEAKING ON THE OCCASION OF THE 150TH ANNIVERSARY
OF THE COURT.  309 U.S. XIV. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING.    THE POWER OF A JUDGE TO INFLICT
PUNISHMENT FOR CRIMINAL CONTEMPT BY MEANS OF A SUMMARY PROCEEDINGS
STANDS AS AN ANOMALY IN THE LAW.  (FN1)  IN MY JUDGMENT THE TIME HAS
COME FOR A FUNDAMENTAL AND SEARCHING RECONSIDERATION OF THE VALIDITY OF
THIS POWER WHICH HAS APTLY BEEN CHARACTERIZED BY A STATE SUPREME COURT
AS, "PERHAPS, NEAREST AKIN TO DESPOTIC POWER OF ANY POWER EXISTING
UNDER OUR FORM OF GOVERNMENT."  (FN2)  EVEN THOUGH THIS EXTRAORDINARY
AUTHORITY FIRST SLIPPED INTO THE LAW AS A VERY LIMITED AND
INSIGNIFICANT THING, IT HAS RELENTLESSLY SWOLLEN, AT THE HANDS OF NOT
UNWILLING JUDGES, UNTIL IT HAS BECOME A DRASTIC AND PERVASIVE MODE OF
ADMINISTERING CRIMINAL JUSTICE USURPING OUR REGULAR CONSTITUTIONAL
METHODS OF TRYING THOSE CHARGED WITH OFFENSES AGAINST SOCIETY. 
THEREFORE TO ME THIS CASE INVOLVES BASIC QUESTIONS OF THE HIGHEST
IMPORTANCE FAR TRANSCENDING ITS PARTICULAR FACTS.  BUT THE SPECIFIC
FACTS DO PROVIDE A STRIKING EXAMPLE OF HOW THE GREAT PROCEDURAL
SAFEGUARDS ERECTED BY THE BILL OF RIGHTS ARE NOW EASILY EVADED BY THE
EVER-READY AND BOUNDLESS EXPEDIENTS OF A JUDICIAL DECREE AND A SUMMARY
CONTEMPT PROCEEDING. 

I WOULD REJECT THOSE PRECEDENTS WHICH HAVE HELD THAT THE FEDERAL
COURTS CAN PUNISH AN ALLEGED VIOLATION OUTSIDE THE COURTROOM OF THEIR
DECREES BY MEANS OF A SUMMARY TRIAL, AT LEAST AS LONG AS THEY CAN
PUNISH BY SEVERE PRISON SENTENCES OR FINES AS THEY NOW CAN AND DO.
(FN3)  I WOULD HOLD THAT THE DEFENDANTS HERE WERE ENTITLED TO BE TRIED
BY A JURY AFTER INDICTMENT BY A GRAND JURY AND IN FULL ACCORDANCE WITH
ALL THE PROCEDURAL SAFEGUARDS REQUIRED BY THE CONSTITUTION FOR "ALL
CRIMINAL PROSECUTIONS."  I AM CONVINCED THAT THE PREVIOUS CASES TO THE
CONTRARY ARE WRONG - WHOLLY WRONG FOR REASONS WHICH I SHALL SET OUT IN
THIS OPINION. 

ORDINARILY IT IS SOUND POLICY TO ADHERE TO PRIOR DECISIONS BUT THIS
PRACTICE HAS QUITE PROPERLY NEVER BEEN A BLIND, INFLEXIBLE RULE. 
COURTS ARE NOT OMNISCIENT.  LIKE EVERY OTHER HUMAN AGENCY, THEY TOO CAN
PROFIT FROM TRIAL AND ERROR, FROM EXPERIENCE AND REFLECTION.  AS OTHERS
HAVE DEMONSTRATED, THE PRINCIPLE COMMONLY REFERRED TO AS STARE DECISIS
HAS NEVER BEEN THOUGHT TO EXTEND SO FAR AS TO PREVENT THE COURTS FROM
CORRECTING THEIR OWN ERRORS.  ACCORDINGLY, THIS COURT HAS TIME AND TIME
AGAIN FROM THE VERY BEGINNING RECONSIDERED THE MERITS OF ITS EARLIER
DECISIONS EVEN THOUGH THEY CLAIMED GREAT LONGEVITY AND REPEATED
REAFFIRMATION.  SEE, E.G., ERIE RAILROAD CO. V. TOMPKINS, 304 U.S. 64;
GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466; NYE V. UNITED STATES,
313 U.S. 33.  (FN4)  INDEED, THE COURT HAS A SPECIAL RESPONSIBILITY
WHERE QUESTIONS OF CONSTITUTIONAL LAW ARE INVOLVED TO REVIEW ITS
DECISIONS FROM TIME TO TIME AND WHERE COMPELLING REASONS PRESENT
THEMSELVES TO REFUSE TO FOLLOW ERRONEOUS PRECEDENTS; OTHERWISE ITS
MISTAKES IN INTERPRETING THE CONSTITUTION ARE EXTREMELY DIFFICULT TO
ALLEVIATE AND NEEDLESSLY SO.  SEE BURNET V. CORONADO OIL & GAS CO., 285
U.S. 393, 405 (BRANDEIS, J., DISSENTING); DOUGLAS, STARE DECISIS, 49
COL. L. REV. 735. 

IF EVER A GROUP OF CASES CALLED FOR REAPPRAISAL IT SEEMS TO ME THAT
THOSE APPROVING SUMMARY TRIAL OF CHARGES OF CRIMINAL CONTEMPT ARE THE
ONES.  THE EARLY PRECEDENTS WHICH LAID THE GROUNDWORK FOR THIS LINE OF
AUTHORITIES WERE DECIDED BEFORE THE ACTUAL HISTORY OF THE PROCEDURES
USED TO PUNISH CONTEMPT WAS BROUGHT TO LIGHT, AT A TIME WHEN "WHOLLY
UNFOUNDED ASSUMPTIONS ABOUT 'IMMEMORIAL USAGE' ACQUIRED A FACTITIOUS
AUTHORITY AND WERE MADE THE BASIS OF LEGAL DECISIONS."  (FN5)  THESE
CASES ERRONEOUSLY ASSUMED THAT COURTS HAD ALWAYS POSSESSED THE POWER TO
PUNISH ALL CONTEMPTS SUMMARILY AND THAT IT INHERED IN THEIR VERY BEING
WITHOUT SUPPORTING THEIR SUPPOSITIONS BY AUTHORITY OR REASON.  LATER
CASES MERELY CITE THE EARLIER ONES IN A PROGRESSIVE CUMULATION WHILE
UNCRITICALLY REPEATING THEIR ASSUMPTIONS ABOUT "IMMEMORIAL USAGE" AND
"INHERENT NECESSITY."  (FN6) 

NO JUSTIFIED EXPECTATIONS WOULD BE DESTROYED BY THE COURSE I
PROPOSE.  THERE HAS BEEN NO HEAVY INVESTMENT IN RELIANCE ON THE EARLIER
CASES; THEY DO NOT REMOTELY LAY DOWN RULES TO GUIDE MEN IN THEIR
COMMERCIAL OR PROPERTY AFFAIRS.  INSTEAD THEY CONCERN THE MANNER IN
WHICH PERSONS ARE TO BE TRIED BY THE GOVERNMENT FOR THEIR ALLEGED
CRIMES.  CERTAINLY IN THIS AREA THERE IS NO EXCUSE FOR THE PERPETUATION
OF PAST ERRORS, PARTICULARLY ERRORS OF GREAT CONTINUING IMPORTANCE WITH
OMINOUS POTENTIALITIES.  APPARENTLY EVEN THE MAJORITY RECOGNIZES THE
NEED FOR SOME KIND OF REFORM BY ENGRAFTING THE REQUIREMENT THAT
PUNISHMENT FOR CONTEMPT MUST BE "REASONABLE" - THAT IRREPRESSIBLE,
VAGUE AND DELUSIVE STANDARD WHICH AT TIMES THREATENS TO ENGULF THE
ENTIRE LAW, INCLUDING THE CONSTITUTION ITSELF, IN A SEA OF JUDICIAL
DISCRETION.  (FN7)  BUT THIS TRIFLING AMELIORATION DOES NOT STRIKE AT
THE HEART OF THE PROBLEM AND CAN EASILY COME TO NOTHING, AS THE
MAJORITY'S VERY APPROVAL OF THE GROSSLY DISPROPORTIONATE SENTENCES
IMPOSED ON THESE DEFENDANTS PORTENDS. 

BEFORE GOING ANY FURTHER, PERHAPS IT SHOULD BE EMPHASIZED THAT WE ARE
NOT AT ALL CONCERNED WITH THE POWER OF COURTS TO IMPOSE CONDITIONAL
IMPRISONMENT FOR THE PURPOSE OF COMPELLING A PERSON TO OBEY A VALID
ORDER.  SUCH COERCION, WHERE THE DEFENDANT CARRIES THE KEYS TO FREEDOM
IN HIS WILLINGNESS TO COMPLY WITH THE COURT'S DIRECTIVE, IS ESSENTIALLY
A CIVIL REMEDY DESIGNED FOR THE BENEFIT OF OTHER PARTIES AND HAS QUITE
PROPERLY BEEN EXERCISED FOR CENTURIES TO SECURE COMPLIANCE WITH
JUDICIAL DECREES.  SEE UNITED STATES V. UNITED MINE WORKERS OF AMERICA,
330 U.S. 258, 330-332 (DISSENTING AND CONCURRING OPINION).  INSTEAD, AT
STAKE HERE IS THE VALIDITY OF A CRIMINAL CONVICTION FOR DISOBEDIENCE OF
A COURT ORDER PUNISHED BY A LONG, FIXED TERM OF IMPRISONMENT.  IN MY
JUDGMENT THE DISTINCTION BETWEEN CONDITIONAL CONFINEMENT TO COMPEL
FUTURE PERFORMANCE AND UNCONDITIONAL IMPRISONMENT DESIGNED TO PUNISH
PAST TRANSGRESSIONS IS CRUCIAL, ANALYTICALLY AS WELL AS HISTORICALLY,
IN DETERMINING THE PERMISSIBLE MODE OF TRIAL UNDER THE CONSTITUTION. 

SUMMARY TRIAL OF CRIMINAL CONTEMPT, AS NOW PRACTICED, ALLOWS A SINGLE
FUNCTIONARY OF THE STATE, A JUDGE, TO LAY DOWN THE LAW, TO PROSECUTE
THOSE WHO HE BELIEVES HAVE VIOLATED HIS COMMAND (AS INTERPRETED BY
HIM), TO SIT IN "JUDGMENT" ON HIS OWN CHARGES, AND THEN WITHIN THE
BROADEST KIND OF BOUNDS TO PUNISH AS HE SEES FIT.  IT SEEMS
INCONSISTENT WITH THE MOST RUDIMENTARY PRINCIPLES OF OUR SYSTEM OF
CRIMINAL JUSTICE, A SYSTEM CAREFULLY DEVELOPED AND PRESERVED THROUGHOUT
THE CENTURIES TO PREVENT OPPRESSIVE ENFORCEMENT OF OPPRESSIVE LAWS, TO
CONCENTRATE THIS MUCH POWER IN THE HANDS OF ANY OFFICER OF THE STATE. 
NO OFFICIAL, REGARDLESS OF HIS POSITION OR THE PURITY AND NOBLENESS OF
HIS CHARACTER, SHOULD BE GRANTED SUCH AUTOCRATIC OMNIPOTENCE.  INDEED
IF ANY OTHER OFFICER WERE PRESUMPTUOUS ENOUGH TO CLAIM SUCH POWER I
CANNOT BELIEVE THE COURTS WOULD TOLERATE IT FOR AN INSTANT UNDER THE
CONSTITUTION.  JUDGES ARE NOT ESSENTIALLY DIFFERENT FROM OTHER
GOVERNMENT OFFICIALS.  FORTUNATELY THEY REMAIN HUMAN EVEN AFTER
ASSUMING THEIR JUDICIAL DUTIES.  LIKE ALL THE REST OF MANKIND THEY MAY
BE AFFECTED FROM TIME TO TIME BY PRIDE AND PASSION, BY PETTINESS AND
BRUISED FEELINGS, BY IMPROPER UNDERSTANDING OR BY EXCESSIVE ZEAL. 
FRANK RECOGNITION OF THESE COMMON HUMAN CHARACTERISTICS, AS WELL AS
OTHERS WHICH NEED NOT BE MENTIONED, UNDOUBTEDLY LED TO THE
DETERMINATION OF THOSE WHO FORMED OUR CONSTITUTION TO FRAGMENT POWER,
ESPECIALLY THE POWER TO DEFINE AND ENFORCE THE CRIMINAL LAW, AMONG
DIFFERENT DEPARTMENTS AND INSTITUTIONS OF GOVERNMENT IN THE HOPE THAT
EACH WOULD TEND TO OPERATE AS A CHECK ON THE ACTIVITIES OF THE OTHERS
AND A SHIELD AGAINST THEIR EXCESSESS THEREBY SECURING THE PEOPLE'S
LIBERTY. 

WHEN THE RESPONSIBILITIES OF LAWMAKER, PROSECUTOR, JUDGE, JURY AND
DISCIPLINARIAN ARE THRUST UPON A JUDGE HE IS OBVIOUSLY INCAPABLE OF
HOLDING THE SCALES OF JUSTICE PERFECTLY FAIR AND TRUE AND REFLECTING
IMPARTIALLY ON THE GUILT OR INNOCENCE OF THE ACCUSED.  (FN8)  HE TRULY
BECOMES THE JUDGE OF HIS OWN CAUSE.  THE DEFENDANT CHARGED WITH
CRIMINAL CONTEMPT IS THUS DENIED WHAT I HAD ALWAYS THOUGHT TO BE AN
INDISPENSABLE ELEMENT OF DUE PROCESS OF LAW - AN OBJECTIVE,
SCRUPULOUSLY IMPARTIAL TRIBUNAL TO DETERMINE WHETHER HE IS GUILTY OR
INNOCENT OF THE CHARGES FILED AGAINST HIM.  IN THE WORDS OF THIS COURT:
"A FAIR TRIAL IN A FAIR TRIBUNAL IS A BASIC REQUIREMENT OF DUE
PROCESS.  FAIRNESS OF COURSE REQUIRES AN ABSENCE OF ACTUAL BIAS IN THE
TRIAL OF CASES.  BUT OUR SYSTEM OF LAW HAS ALWAYS ENDEAVORED TO PREVENT
EVEN THE PROBABILITY OF UNFAIRNESS.  TO THIS END NO MAN CAN BE A JUDGE
IN HIS OWN CASE AND NO MAN IS PERMITTED TO TRY CASES WHERE HE HAS AN
INTEREST IN THE OUTCOME ...  .  FAIR TRIALS ARE TOO IMPORTANT A PART OF
OUR FREE SOCIETY TO LET PROSECUTING JUDGES BE TRIAL JUDGES OF THE
CHARGES THEY PREFER."  IN RE MURCHISON, 349 U.S. 133, 136-137.  CF.
CHAMBERS V. FLORIDA, 309 U.S. 227, 236-237; TUMEY V. OHIO, 273 U.S.
510; IN RE OLIVER, 333 U.S. 257. 

THE VICES OF A SUMMARY TRIAL ARE ONLY AGGRAVATED BY THE FACT THAT THE
JUDGE'S POWER TO PUNISH CRIMINAL CONTEMPT IS EXERCISED WITHOUT
EFFECTIVE EXTERNAL RESTRAINT.  FIRST, THE SUBSTANTIVE SCOPE OF THE
OFFENSE OF CONTEMPT IS INORDINATELY SWEEPING AND VAGUE; IT HAS BEEN
DEFINED, FOR EXAMPLE, AS "ANY CONDUCT THAT TENDS TO BRING THE AUTHORITY
AND ADMINISTRATION OF THE LAW INTO DISRESPECT OR DISREGARD."  (FN9)  IT
WOULD BE NO OVERSTATEMENT THEREFORE TO SAY THAT THE OFFENSE WITH THE
MOST ILL-DEFINED AND ELASTIC CONTOURS IN OUR LAW IS NOW PUNISHED BY THE
HARSHEST PROCEDURES KNOWN TO THAT LAW.  SECONDLY, A DEFENDANT'S
PRINCIPAL ASSURANCE THAT HE WILL BE FAIRLY TRIED AND PUNISHED IS THE
LARGELY IMPOTENT REVIEW OF A COLD RECORD BY AN APPELLATE COURT, ANOTHER
BODY OF JUDGES.  ONCE IN A GREAT WHILE A PARTICULAR APPELLATE TRIBUNAL
BASICALLY HOSTILE TO SUMMARY PROCEEDINGS WILL CLOSELY POLICE CONTEMPT
TRIALS BUT SUCH SUPERVISION IS ONLY ISOLATED AND FLEETING.  ALL TOO
OFTEN THE REVIEWING COURTS STAND ASIDE READILY WITH THE FORMAL
DECLARATION THAT "THE TRIAL JUDGE HAS NOT ABUSED HIS DISCRETION."  BUT
EVEN AT ITS RARE BEST APPELLATE REVIEW CANNOT BEGIN TO TAKE THE PLACE
OF TRIAL IN THE FIRST INSTANCE BY AN IMPARTIAL JURY SUBJECT TO REVIEW
ON THE SPOT BY AN UNCOMMITTED TRIAL JUDGE.  FINALLY, AS THE LAW NOW
STANDS THERE ARE NO LIMITS ON THE PUNISHMENT A JUDGE CAN IMPOSE ON A
DEFENDANT WHOM HE FINDS GUILTY OF CONTEMPT EXCEPT FOR WHATEVER REMOTE
RESTRICTIONS EXIST IN THE EIGHTH AMENDMENT'S PROHIBIITON AGAINST CRUEL
AND UNUSUAL PUNISHMENTS OR IN THE NEBULOUS REQUIREMENTS OF
"REASONABLENESS" NOW PROMULGATED BY THE MAJORITY. 

IN MY VIEW THE POWER OF COURTS TO PUNISH CRIMINAL CONTEMPT BY SUMMARY
TRIAL, AS NOW EXERCISED, IS PRECISELY THE KIND OF ARBITRARY AND
DANGEROUS POWER WHICH OUR FOREFATHERS BOTH HERE AND ABROAD FOUGHT SO
LONG, SO BITTERLY, TO STAMP OUT.  AND THE PARADOX OF IT ALL IS THAT THE
COURTS WERE ESTABLISHED AND ARE MAINTAINED TO PROVIDE IMPARTIAL
TRIBUNALS OF STRICTLY DISINTERESTED ARBITERS TO RESOLVE CHARGES OF
WRONGDOING BETWEEN CITIZEN AND CITIZEN OR CITIZEN AND STATE. 

THE CONSTITUTION AND BILL OF RIGHTS DECLARE IN SWEEPING UNEQUIVOCAL
TERMS THAT "THE TRIAL OF ALL CRIMES  ...  SHALL BE BY JURY," THAT "IN
ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY," AND THAT "NO PERSON
SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME,
UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY."  AS IT MAY NOW
BE PUNISHED CRIMINAL CONTEMPT IS MANIFESTLY A CRIME BY EVERY RELEVANT
TEST OF REASON OR HISTORY.  IT WAS ALWAYS A CRIME AT COMMON LAW
PUNISHABLE AS SUCH IN THE REGULAR COURSE OF THE CRIMINAL LAW.  (FN10)
IT POSSESSES ALL OF THE EARMARKS COMMONLY ATTRIBUTED TO A CRIME.  A
MANDATE OF THE GOVERNMENT HAS ALLEGEDLY BEEN VIOLATED FOR WHICH SEVERE
PUNISHMENT, INCLUDING LONG PRISON SENTENCES, MAY BE EXACTED -
PUNISHMENT AIMED AT CHASTISING THE VIOLATOR FOR HIS DISOBEDIENCE. 
(FN11)  AS MR. JUSTICE HOLMES IRREFUTABLY OBSERVED FOR THE COURT IN
GOMPERS V. UNITED STATES, 233 U.S. 604, AT 610-611:  "THESE CONTEMPTS
ARE INFRACTIONS OF THE LAW, VISITED WITH PUNISHMENT AS SUCH.   IF SUCH
ACTS ARE NOT CRIMINAL, WE ARE IN ERROR AS TO THE MOST FUNDAMENTAL
CHARACTERISTIC OF CRIMES AS THAT WORD HAS BEEN UNDERSTOOD IN ENGLISH
SPEECH.  SO TRULY ARE THEY CRIMES THAT IT SEEMS TO BE PROVED THAT IN
THE EARLY LAW THEY WERE PUNISHED ONLY BY THE USUAL CRIMINAL PROCEDURE
...  AND THAT AT LEAST IN ENGLAND IT SEEMS THAT THEY STILL MAY BE AND
PREFERABLY ARE TRIED IN THAT WAY."  (FN12) 

THIS VERY CASE FORCEFULLY ILLUSTRATES THE POINT.  AFTER SURRENDERING
THE DEFENDANTS WERE CHARGED WITH FLEEING FROM JUSTICE, CONVICTED, AND
GIVEN LENGTHY PRISON SENTENCES DESIGNED TO PUNISH THEM FOR THEIR
FLIGHT.  IDENTICAL FLIGHT HAS NOW BEEN MADE A STATUTORY CRIME BY THE
CONGRESS WITH SEVERE PENALTIES.  (FN13)  HOW CAN IT POSSIBLY BE ANY
MORE OF A CRIME TO BE CONVICTED OF DISOBEYING A STATUTE AND SENT TO
JAIL FOR THREE YEARS THAN TO BE FOUND GUILTY OF VIOLATING A JUDICIAL
DECREE FORBIDDING PRECISELY THE SAME CONDUCT AND IMPRISONED FOR THE
SAME TERM?    THE CLAIM HAS FREQUENTLY BEEN ADVANCED THAT COURTS HAVE
EXERCISED THE POWER TO TRY ALL CRIMINAL CONTEMPTS SUMMARILY SINCE TIME
IMMEMORIAL AND THAT THIS MODE OF TRIAL WAS SO WELL ESTABLISHED AND SO
FAVORABLY REGARDED AT THE TIME THE CONSTITUTION WAS ADOPTED THAT IT WAS
CARRIED FORWARD INTACT, BY IMPLICATION, DESPITE THE EXPRESS PROVISIONS
OF THE BILL OF RIGHTS REQUIRING A COMPLETELY DIFFERENT AND FAIRER KIND
OF TRIAL FOR "ALL CRIMES."  THE MYTH OF IMMEMORIAL USUAGE HAS BEEN
EXPLODED BY RECENT SCHOLARSHIP AS A MERE FICTION.  INSTEAD IT SEEMS
CLEAR THAT UNTIL AT LEAST THE LATE SEVENTEENTH OR EARLY EIGHTEENTH
CENTURY THE ENGLISH COURTS, WITH THE SOLE EXCEPTION OF THE
EXTRAORDINARY AND ILL-FAMED COURT OF STAR CHAMBER WHOSE ARBITRARY
PROCEDURES AND GROSS EXCESSES BROUGHT FORTH MANY OF THE SAFEGUARDS
INCLUDED IN OUR CONSTITUTION, NEITHER HAD NOR CLAIMED POWER TO PUNISH
CONTEMPTS COMMITTED OUT OF COURT BY SUMMARY PROCESS.  FOX, THE HISTORY
OF CONTEMPT OF COURT; FRANKFURTER AND LANDIS, POWER TO REGULATE
CONTEMPTS, 37 HARV. L. REV. 1010, 1042-1052; BEALE, CONTEMPT OF COURT,
CRIMINAL AND CIVIL, 21 HARV. L. REV. 161.  PRIOR TO THIS PERIOD SUCH
CONTEMPTS WERE TRIED IN THE NORMAL AND REGULAR COURSE OF THE CRIMINAL
LAW, INCLUDING TRIAL BY JURY.  (FN14) AFTER THE STAR CHAMBER WAS
ABOLISHED IN 1641 THE SUMMARY CONTEMPT PROCEDURES UTILIZED BY THAT
ODIOUS INSTRUMENT OF TYRANNY SLOWLY BEGAN TO SEEP INTO THE COMMON-LAW
COURTS WHERE THEY WERE EMBRACED BY JUDGES NOT AVERSE TO ENHANCING THEIR
OWN POWER.  STILL FOR DECADES THE INSTANCES WHERE SUCH IRREGULAR
PROCEDURES WERE ACTUALLY APPLIED REMAINED FEW AND FAR BETWEEN AND
LIMITED TO CERTAIN SPECIAL SITUATIONS. 

THEN IN 1765 JUSTICE WILMOT DECLARED IN AN OPINION PREPARED FOR
DELIVERY IN THE COURT OF KING'S BENCH (BUT NEVER ACTUALLY HANDED DOWN)
THAT COURTS HAD EXERCISED THE POWER TO TRY ALL CONTEMPTS SUMMARILY
SINCE THEIR CREATION IN THE FORGOTTEN PAST.  ALTHOUGH THIS BALD
ASSERTION HAS BEEN WHOLLY DISCREDITED BY THE PAINSTAKING RESEARCH OF
THE EMINENT AUTHORITIES REFERRED TO ABOVE, AND EVEN THOUGH WILMOT'S
OPINION WAS NOT PUBLISHED UNTIL SOME YEARS AFTER OUR CONSTITUTION HAD
BEEN ADOPTED, NOR CITED AS AUTHORITY BY ANY COURT UNTIL 1821, HIS VIEWS
HAVE NEVERTHELESS EXERTED A BALEFUL INFLUENCE ON THE LAW OF CONTEMPT
BOTH IN THIS COUNTRY AND IN ENGLAND.  BY THE MIDDLE OF THE LAST CENTURY
THE ENGLISH COURTS HAD COME TO ACCEPT FULLY HIS THESIS THAT THEY
INHERENTLY POSSESSED POWER TO PUNISH ALL CONTEMPTS SUMMARILY, IN OR OUT
OF COURT.  YET EVEN THEN CONTEMPTS WERE OFTEN PUNISHED BY THE REGULAR
CRIMINAL PROCEDURES SO THAT THIS COURT COULD REPORT AS LATE AS 1913
THAT THEY WERE STILL PREFERABLY TRIED IN THAT MANNER.  GOMPERS V.
UNITED STATES, 233 U.S. 604, 611.  (FN15) 

THE GOVERNMENT, RELYING SOLELY ON CERTAIN OBSCURE PASSEGES IN SOME
EARLY LAW REVIEW ARTICLES BY FOX, CONTENDS THAT WHILE THE COMMON-LAW
COURTS MAY NOT HAVE TRADITIONALLY POSSESSED POWER TO PUNISH ALL
CRIMINAL CONTEMPTS WITHOUT A REGULAR TRIAL THEY HAD ALWAYS EXERCISED
SUCH AUTHORITY WITH RESPECT TO DISOBEDIENCE OF THEIR DECREES.  I DO NOT
BELIEVE THAT THE STUDIES OF FOX OR OF OTHER STUDENTS OF THE HISTORY OF
CONTEMPT SUPPORT ANY SUCH CLAIM.  AS I UNDERSTAND HIM, FOX REACHES
PRECISELY THE OPPOSITE CONCLUSION.  IN HIS AUTHORITATIVE TREATISE,
EXPRESSLY WRITTEN TO ELABORATE AND FURTHER SUBSTANTIATE THE OPINIONS
FORMED IN HIS EARLIER LAW REVIEW COMMENTS, HE STATES CLEARLY AT THE
OUTSET: 

"THE FIRST OF THIS SERIES OF EARLIER ARTICLES, ENTITLED THE KING V.
ALMON, WAS WRITTEN TO SHOW THAT IN FORMER TIMES THE OFFENCE OF CONTEMPT
COMMITTED OUT OF COURT WAS TRIED BY A JURY IN THE ORDINARY COURSE OF
LAW AND NOT SUMMARILY BY THE COURT AS AT PRESENT (1927).  THE LATER
ARTICLES ALSO BEAR UPON THE HISTORY OF THE PROCEDURE IN MATTERS OF
CONTEMPT.  FURTHER INQUIRY CONFIRMED THE OPINION ORIGINALLY FORMED WITH
REGARD TO THE TRIAL OF CONTEMPT AND BROUGHT TO LIGHT A CONSIDERABLE
AMOUNT OF ADDITIONAL EVIDENCE WHICH, WITH THE EARLIER MATTER, IS
EMBODIED IN THE FOLLOWING CHAPTERS ...  ."  (FN16) 

THEN IN SUMMARIZING HE ASSERTS THAT STRANGERS TO COURT PROCEEDINGS
WERE NEVER PUNISHED EXCEPT BY THE ORDINARY PROCESSES OF THE CRIMINAL
LAW FOR CONTEMPTS COMMITTED OUT OF THE COURT'S PRESENCE UNTIL SOME TIME
AFTER THE DISSOLUTION OF THE STAR CHAMBER; HE IMMEDIATELY FOLLOWS WITH
THE JUDGMENT THAT PARTIES WERE GOVERNED BY THE SAME GENERAL RULES THAT
APPLIED TO STRANGERS.  (FN17)  OF COURSE HE RECOGNIZES THE ANTIQUITY OF
THE JURISDICTION OF COURTS TO ENFORCE THEIR ORDERS BY CONDITIONAL
CONFINEMENT, BUT SUCH COERCION, AS POINTED OUT BEFORE, IS OBVIOUSLY
SOMETHING QUITE DIFFERENT FROM THE INFLICTION OF PURELY PUNITIVE
PENALTIES FOR CRIMINAL CONTEMPT WHEN COMPLIANCE IS NO LONGER POSSIBLE. 

PROFESSORS FRANKFURTER AND LANDIS IN THEIR FINE ARTICLE LIKEWISE
UNEQUIVOCALLY DECLARE: 

"  ...  THE CLAYTON ACT (PROVIDING FOR JURY TRIAL OF CERTAIN CHARGES
OF CRIMINAL CONTEMPT) DOES NOTHING NEW.  IT IS AS OLD AS THE BEST
TRADITIONS OF THE COMMON LAW  ...  . 

"DOWN TO THE EARLY PART OF THE EIGHTEENTH CENTURY CASES OF CONTEMPT
EVEN IN AND ABOUT THE COMMON-LAW COURTS WHEN NOT COMMITTED BY PERSONS
OFFICIALLY CONNECTED WITH THE COURT WERE DEALT WITH BY THE ORDINARY
COURSE OF LAW, I.E., TRIED BY JURY, EXCEPT WHEN THE OFFENDER CONFESSED
OR WHEN THE OFFENSE WAS COMMITTED 'IN THE ACTUAL VIEW OF THE COURT.' 
...  . 

     *         *         *         *         * 

"UNTIL 1720 THERE IS NO INSTANCE IN THE COMMON-LAW PRECEDENTS OF
PUNISHMENT OTHERWISE THAN AFTER TRIAL IN THE ORDINARY COURSE AND NOT BY
SUMMARY PROCESS."  (FN18) 

AND PROFESSOR BEALE IN HIS DISCUSSION OF THE MATTER CONCLUDES: 

"AS EARLY AS THE TIME OF RICHARD III IT WAS SAID THAT THE CHANCELLOR
OF ENGLAND COMPELS A PARTY AGAINST WHOM AN ORDER IS ISSUED BY
IMPRISONMENT; AND A LITTLE LATER IT WAS SAID IN THE CHANCERY THAT 'A
DECREE DOES NOT BIND THE RIGHT, BUT ONLY BINDS THE PERSON TO OBEDIENCE,
SO THAT IF THE PARTY WILL NOT OBEY, THEN THE CHANCELLOR MAY COMMIT HIM
TO PRISON TILL HE OBEY, AND THAT IS ALL THE CHANCELLOR CAN DO.'  THIS
IMPRISONMENT WAS BY NO MEANS A PUNISHMENT, BUT WAS MERELY TO SECURE
OBEDIENCE TO THE WRIT OF THE KING.  DOWN TO WITHIN A CENTURY (BEALE WAS
WRITING IN 1908) IT WAS VERY DOUBTFUL IF THE CHANCELLOR COULD UNDER ANY
CIRCUMSTANCES INFLICT PUNISHMENT FOR DISOBEDIENCE OF A DECREE  ...  .
IN ANY CASE THE CONTEMPT OF A DEFENDANT WHO HAD VIOLATED A DECREE IN
CHANCERY COULD BE PURGED BY DOING THE ACT COMMANDED AND PAYING COSTS;
...  . 

     *         *         *         *         * 

"WHERE THE COURT INFLICTS A DEFINITE TERM OF IMPRISONMENT BY WAY OF
PUNISHMENT FOR THE VIOLATION OF ITS ORDERS, THE CASE DOES NOT DIFFER,
IT WOULD SEEM, FROM THE CASE OF CRIMINAL CONTEMPT OUT OF COURT, AND
REGULAR PROCESS AND TRIAL BY JURY SHOULD BE REQUIRED."  (FN19) 

IN BRIEF THE AVAILABLE HISTORICAL MATERIAL AS REPORTED AND ANALYZED
BY THE RECOGNIZED AUTHORITIES IN THIS FIELD SQUARELY REFUTES THE
GOVERNMENT'S INSISTENCE THAT DISOBEDIENCE OF A COURT ORDER HAS ALWAYS
BEEN AN EXCEPTION PUNISHABLE BY SUMMARY PROCESS.  INSOFAR AS THIS
PARTICULAR CASE IS CONCERNED, THE GOVERNMENT FRANKLY CONCEDES THAT IT
CANNOT POINT TO A SINGLE INSTANCE IN THE ENTIRE COURSE OF ANGLO
AMERICAN LEGAL HISTORY PRIOR TO THIS PROSECUTION AND TWO RELATED
CONTEMPORARY CASES WHERE A DEFENDANT HAS BEEN PUNISHED FOR CRIMINAL
CONTEMPT BY SUMMARY TRIAL AFTER FLEEING FROM COURT-ORDERED
IMPRISONMENT.  (FN20) 

THOSE WHO CLAIM THAT THE DELEGATES WHO RATIFIED THE CONSTITUTION AND
ITS CONTEMPORANEOUS AMENDMENTS INTENDED TO EXEMPT THE CRIME OF CONTEMPT
FROM THE PROCEDURAL SAFEGUARDS EXPRESSLY ESTABLISHED BY THOSE GREAT
CHARTERS FOR THE TRIAL OF "ALL CRIMES" CARRY A HEAVY BURDEN INDEED. 
THERE IS NOTHING IN THE CONSTITUTION OR ANY OF ITS AMENDMENTS WHICH
EVEN REMOTELY SUGGESTS SUCH AN EXCEPTION.  AND AS THE GOVERNMENT POINTS
OUT IN ITS BRIEF, IT DOES NOT APPEAR THAT THERE WAS A WORD OF
DISCUSSION IN THE CONSTITUTIONAL CONVENTION OR IN ANY OF THE STATE
RATIFYING CONVENTIONS RECOGNIZING OR AFFIRMING THE JURISDICTION OF
COURTS TO PUNISH THIS CRIME BY SUMMARY PROCESS, A POWER WHICH IN ALL
PARTICULARS IS SO INHERENTLY ALIEN TO THE METHOD OF PUNISHING OTHER
PUBLIC OFFENSES PROVIDED BY THE CONSTITUTION. 

IN THE BEGINNING THE CONTEMPT POWER WITH ITS ESSENTIALLY ARBITRARY
PROCEDURES WAS A PETTY, INSIGNIFICANT PART OF OUR LAW INVOLVING THE USE
OF TRIVIAL PENALTIES TO PRESERVE ORDER IN THE COURTROOM AND MAINTAIN
THE AUTHORITY OF THE COURTS.  (FN21)  BUT SINCE THE ADOPTION OF THE
CONSTITUTION IT HAS UNDERGONE AN INCREDIBLE TRANSFORMATION AND GROWTH,
SLOWLY AT FIRST AND THEN WITH INCREASING ACCELERATION, UNTIL IT HAS
BECOME A POWERFUL AND PERVASIVE DEVICE FOR ENFORCEMENT OF THE CRIMINAL
LAW.  IT IS NO LONGER THE SAME COMPARATIVELY INNOCUOUS POWER THAT IT
WAS.  ITS SUMMARY PROCEDURES HAVE BEEN PRESSED INTO SERVICE FOR SUCH
FAR-FLUNG PURPOSES AS TO PREVENT "UNLAWFUL" LABOR PRACTICES, TO ENFORCE
THE PROHIBITION LAWS, TO SECURE CIVIL LIBERTIES AND NOW, FOR THE FIRST
TIME IN OUR HISTORY, TO PUNISH A CONVICT FOR FLEEING FROM
IMPRISONMENT.  (FN22)  IN BRIEF IT HAS BECOME A COMMON DEVICE FOR BY
PASSING THE CONSTITUTIONALLY PRESCRIBED SAFEGUARDS OF THE REGULAR
CRIMINAL LAW IN PUNISHING PUBLIC WRONGS.  BUT STILL WORSE, ITS
SUBVERSIVE POTENTIAL TO THAT END APPEARS TO BE VIRTUALLY UNLIMITED. 
ALL THE WHILE THE SENTENCES IMPOSED ON THOSE FOUND GUILTY OF CONTEMPT
HAVE STEADILY MOUNTED, UNTIL NOW THEY ARE EVEN IMPRISONED FOR YEARS. 

I CANNOT HELP BUT BELIEVE THAT THIS ARBITRARY POWER TO PUNISH BY
SUMMARY PROCESS, AS NOW USED, IS UTTERLY IRRECONCILABLE WITH FIRST
PRINCIPLES UNDERLYING OUR CONSTITUTION AND THE SYSTEM OF GOVERNMENT IT
CREATED - PRINCIPLES WHICH WERE UPPERMOST IN THE MINDS OF THE
GENERATION THAT ADOPTED THE CONSTITUTION.  ABOVE ALL THAT GENERATION
DEEPLY FEARED AND BITTERLY ABHORRED THE EXISTENCE OF ARBITRARY,
UNCHECKED POWER IN THE HANDS OF ANY GOVERNMENT OFFICIAL, PARTICULARLY
WHEN IT CAME TO PUNISHING ALLEGED OFFENSES AGAINST THE STATE.  A GREAT
CONCERN FOR PROTECTING INDIVIDUAL LIBERTY FROM EVEN THE POSSIBILITY OF
IRRESPONSIBLE OFFICIAL ACTION WAS ONE OF THE MOMENTOUS FORCES WHICH LED
TO THE BILL OF RIGHTS.  AND THE FIFTH, SIXTH, SEVENTH AND EIGHTH
AMENDMENTS WERE DIRECTLY AND PURPOSEFULLY DESIGNED TO CONFINE THE POWER
OF COURTS AND JUDGES, ESPECIALLY WITH REGARD TO THE PROCEDURES USED FOR
THE TRIAL OF CRIMES. 

AS MANIFESTED BY THE DECLARATION OF INDEPENDENCE, THE DENIAL OF TRIAL
BY JURY AND ITS SUBVERSION BY VARIOUS CONTRIVANCES WAS ONE OF THE
PRINCIPAL COMPLAINTS AGAINST THE ENGLISH CROWN.  TRIAL BY A JURY OF
LAYMEN AND NO LESS WAS REGARDED AS THE BIRTHRIGHT OF FREE MEN.  (FN23)
WITNESS THE FIERCE OPPOSITION OF THE COLONIALS TO THE COURTS OF
ADMIRALTY IN WHICH JUDGES INSTEAD OF CITIZEN JURIES WERE AUTHORIZED TO
TRY THOSE CHARGED WITH VIOLATING CERTAIN LAWS.  (FN24)  THE SAME
ZEALOUS DETERMINATION TO PROTECT JURY TRIAL DOMINATED THE STATE
CONVENTIONS WHICH RATIFIED THE CONSTITUTION AND EVENTUALLY LED TO THE
SOLEMN REAFFIRMATION OF THAT MODE OF TRIAL IN THE BILL OF RIGHTS - NOT
ONLY FOR ALL CRIMINAL PROSECUTIONS BUT FOR ALL CIVIL CAUSES INVOLVING
$20 OR MORE.  SEE 2 STORY, COMMENTARIES ON THE CONSTITUTION (5TH ED.
1891), SECS. 1763-1768.  I FIND IT DIFFICULT TO UNDERSTAND HOW IT CAN
BE MAINTAINED THAT THE SAME PEOPLE WHO MANIFESTED SUCH GREAT CONCERN
FOR TRIAL BY JURY AS TO EXPLICITLY EMBED IT IN THE CONSTITUTION FOR
EVERY $20 CIVIL SUIT COULD HAVE INTENDED THAT THIS CHERISHED METHOD OF
TRIAL SHOULD NOT BE AVAILABLE TO THOSE THREATENED WITH LONG
IMPRISONMENT FOR THE CRIME OF CONTEMPT.  I AM CONFIDENT THAT IF THERE
HAD BEEN ANY INKLING THAT THE FEDERAL COURTS ESTABLISHED UNDER THE
CONSTITUTION COULD IMPOSE HEAVY PENALTIES, AS THEY NOW DO, FOR
VIOLATION OF THEIR SWEEPING AND FAR-RANGING MANDATES WITHOUT GIVING THE
ACCUSED A FAIR TRIAL BY HIS FELLOW CITIZENS IT WOULD HAVE PROVOKED A
STORM OF PROTEST, TO PUT IT MILDLY.  WOULD ANY FRIEND OF THE
CONSTITUTION HAVE BEEN FOOLHARDY ENOUGH TO TAKE THE FLOOR OF THE
RATIFYING CONVENTION IN VIRGINIA OR ANY OF A HALF DOZEN OTHER STATES
AND EVEN SUGGEST SUCH A POSSIBILITY?  (FN25) 

AS THIS COURT HAS OFTEN OBSERVED, "THE CONSTITUTION WAS WRITTEN TO BE
UNDERSTOOD BY THE VOTERS; ITS WORDS AND PHRASES WERE USED IN THEIR
NORMAL AND ORDINARY AS DISTINGUISHED FROM TECHNICAL MEANING," UNITED
STATES V. SPRAGUE, 282 U.S. 716, 731; "  ...  CONSTITUTIONS, ALTHOUGH
FRAMED BY CONVENTIONS, ARE YET CREATED BY THE VOTES OF THE ENTIRE BODY
OF ELECTORS IN A STATE, THE MOST OF WHOM ARE LITTLE DISPOSED, EVEN IF
THEY WERE ABLE, TO ENGAGE IN SUCH REFINEMENTS.  THE SIMPLEST AND MOST
OBVIOUS INTERPRETATION OF A CONSTITUTION, IF IN ITSELF SENSIBLE, IS THE
MOST LIKELY TO BE THAT MEANT BY THE PEOPLE IN ITS ADOPTION," LAKE
COUNTY V. ROLLINS, 130 U.S. 662, 671.  CF. MR. JUSTICE HOLMES IN EISNER
V. MACOMBER, 252 U.S. 189, 219-220 (DISSENTING OPINION).  IT IS WHOLLY
BEYOND MY COMPREHENSION HOW THE GENERALITY OF LAYMEN, OR FOR THAT
MATTER EVEN THOUGHTFUL LAWYERS, EITHER AT THE END OF THE EIGHTEENTH
CENTURY OR TODAY, COULD POSSIBLY SEE AN APPRECIABLE DIFFERENCE BETWEEN
THE CRIME OF CONTEMPT, AT LEAST AS IT HAS NOW EVOLVED, AND OTHER MAJOR
CRIMES, OR WHY THEY WOULD WISH TO DRAW ANY DISTINCTION BETWEEN THE TWO
SO FAR AS BASIC CONSTITUTIONAL RIGHTS WERE CONCERNED. 

IT IS TRUE THAT BLACKSTONE IN HIS COMMENTARIES INCORPORATED WILMOT'S
ERRONEOUS FANCY THAT AT COMMON LAW THE COURTS HAD IMMEMORIALLY PUNISHED
ALL CRIMINAL CONTEMPTS WITHOUT REGULAR TRIAL.  MUCH ADO IS MADE OVER
THIS BY THE PROPONENTS OF SUMMARY PROCEEDINGS.  YET AT THE VERY SAME
TIME BLACKSTONE OPENLY CLASSIFIED AND UNIFORMLY REFERRED TO CONTEMPT AS
A "CRIME" THROUGHOUT HIS TREATISE, AS IN FACT IT HAD TRADITIONALLY BEEN
REGARDED AND PUNISHED AT COMMON LAW.  (FN26) SIMILARLY, OTHER LEGAL
TREATISES AVILABLE IN THIS COUNTRY DURING THE PERIOD WHEN THE
CONSTITUTION WAS ESTABLISHED PLAINLY TREATED CONTEMPT AS A "CRIME." 
(FN27)  IT SEEMS TO ME THAT IF ANY GUIDE TO THE MEANING OF THE
CONSTITUTION CAN BE FASHIONED FROM THE CIRCULATION OF THE COMMENTARIES
AND THESE OTHER LEGAL AUTHORITIES THROUGH THE FORMER COLONIES
(PRIMARILY AMONG LAWYERS AND JUDGES) IT IS AT LEAST AS COMPATIBLE WITH
THE VIEW THAT THE CONSTITUTION REQUIRES A JURY TRIAL FOR CRIMINAL
CONTEMPTS AS WITH THE CONTRARY NOTION.    BUT FAR MORE SIGNIFICANT, OUR
CONSTITUTION AND BILL OF RIGHTS WERE MANIFESTLY NOT DESIGNED TO
PERPETUATE, TO PRESERVE INVIOLATE, EVERY ARBITRARY AND OPPRESSIVE
GOVERNMENTAL PRACTICE THEN TOLERATED, OR THOUGHT TO BE, IN ENGLAND. 
CF. BRIDGES V. CALIFORNIA, 314 U.S. 252, 263-268.  THOSE WHO FORMED THE
CONSTITUTION STRUCK OUT ANEW FREE OF PREVIOUS SHACKLES IN AN EFFORT TO
OBTAIN A BETTER ORDER OF GOVERNMENT MORE CONGENIAL TO HUMAN LIBERTY AND
WELFARE.  IT CANNOT BE SERIOUSLY CLAIMED THAT THEY INTENDED TO ADOPT
THE COMMON LAW WHOLESALE.  THEY ACCEPTED THOSE PORTIONS OF IT WHICH
WERE ADAPTED TO THIS COUNTRY AND CONFORMED TO THE IDEALS OF ITS
CITIZENS AND REJECTED THE REMAINDER.  IN TRUTH THERE WAS WIDESPREAD
HOSTILITY TO THE COMMON LAW IN GENERAL AND PROFOUND OPPOSITION TO ITS
ADOPTION INTO OUR JURISPRUDENCE FROM THE COMMENCEMENT OF THE
REVOLUTIONARY WAR UNTIL LONG AFTER THE CONSTITUTION WAS RATIFIED.  AS
SUMMARIZED BY ONE HISTORIAN: 

"THE REVOLUTIONARY WAR MADE EVERYTHING CONNECTED WITH THE LAW OF
ENGLAND DISTASTEFUL TO THE PEOPLE AT LARGE.  THE LAWYERS KNEW ITS
VALUE:  THE COMMUNITY DID NOT.  PUBLIC SENTIMENT FAVORED AN AMERICAN
LAW FOR AMERICA.  IT WAS QUICKENED BY THE UNFRIENDLY FEELING TOWARD THE
MOTHER COUNTRY WHICH BECAME PRONOUNCED TOWARD THE CLOSE OF THE
EIGHTEENTH CENTURY AND CULMINATED IN THE WAR OF 1812."  (FN28) 

ALTHOUGH THE BENCH AND BAR, PARTICULARLY THOSE WHO WERE ADHERENTS TO
THE PRINCIPLES OF THE FEDERALIST PARTY, OFTEN FAVORED CARRYING FORWARD
THE COMMON LAW TO THE FULLEST POSSIBLE EXTENT POPULAR SENTIMENT WAS
OVERWHELMINGLY AGAINST THEM.  (FN29) 

APOLOGISTS FOR SUMMARY TRIAL OF THE CRIME OF CONTEMPT ALSO ENDEAVOR
TO JUSTIFY IT AS A "NECESSITY" IF JUDICIAL ORDERS ARE TO BE OVSERVED
AND THE NEEDFUL AUTHORITY OF THE COURTS MAINTAINED.  "NECESSITY" IS
OFTEN USED IN THIS CONTEXT AS CONVENIENT OR DESIRABLE.  BUT SINCE WE
ARE DEALING WITH AN ASSERTED POWER WHICH DEROGATES FROM AND IS
FUNDAMENTALLY INCONSISTENT WITH OUR ORDINARY, CONSTITUTIONALLY
PRESCRIBED METHODS OF PROCEEDING IN CRIMINAL CASES, "NECESSITY," IF IT
CAN JUSTIFY AT ALL, MUST AT LEAST REFER TO A SITUATION WHERE THE
EXTRAORDINARY POWER TO PUNISH BY SUMMARY PROCESS IS CLEARLY
INDISPENSABLE TO THE ENFORCEMENT OF COURT DECREES AND THE ORDERLY
ADMINISTRATION OF JUSTICE.  OR AS THIS COURT HAS REPEATEDLY PHRASED IT,
THE COURTS IN PUNISHING CONTEMPTS SHOULD BE RIGOROUSLY RESTRICTED TO
THE "LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED."  SEE, E.G., IN
RE MICHAEL, 326 U.S. 224, 227. 

STARK NECESSITY IS AN IMPRESSIVE AND OFTEN COMPELLING THING, BUT
UNFORTUNATELY IT HAS ALL TOO OFTEN BEEN CLAIMED LOOSELY AND WITHOUT
WARRANT IN THE LAW, AS ELSEWHERE, TO JUSTIFY THAT WHICH IN TRUTH IS
UNJUSTIFIABLE.  AS ONE OF OUR GREAT LAWYERS, EDWARD LIVINGSTON,
OBSERVED IN PROPOSING THE COMPLETE ABOLITION OF SUMMARY TRIAL OF
CRIMINAL CONTEMPTS: 

"NOT ONE OF THE OPPRESSIVE PREROGATIVES OF WHICH THE CROWN HAS BEEN
SUCCESSIVELY STRIPPED, IN ENGLAND, BUT WAS IN ITS DAY, DEFENDED ON THE
PLEA OF NECESSITY.  NOT ONE OF THE ATTEMPTS TO DESTROY THEM, BUT WAS
DEEMED A HAZARDOUS INNOVATION."  (FN30) 

WHEN EXAMINED IN CLOSER DETAIL THE ARGUMENT FROM "NECESSITY" APPEARS
TO REST ON THE ASSUMPTION THAT THE REGULAR CRIMINAL PROCESSES,
INCLUDING TRIAL BY PETIT JURY AND INDICTMENT BY GRAND JURY, WILL NOT
RESULT IN CONVICTION AND PUNISHMENT OF A FAIR SHARE OF THOSE GUILTY OF
VIOLATING COURT ORDERS, ARE UNDULY SLOW AND CUMBERSOME, AND BY
INTERVENING BETWEEN THE COURT AND PUNISHMENT FOR THOSE WHO DISOBEY ITS
MANDATE SOMEHOW DETRACT FROM ITS DIGNITY AND PRESTIGE.  OBVIOUSLY THIS
ARGUMENT REFLECTS SUBSTANTIAL DISRESPECT FOR THE INSTITUTION OF TRIAL
BY JURY, ALTHOUGH THIS METHOD OF TRIAL IS - AND HAS BEEN FOR CENTURIES
AN INTEGRAL AND HIGHLY ESTEEMED PART OF OUR SYSTEM OF CRIMINAL JUSTICE
ENSHRINED IN THE CONSTITUTION ITSELF.  NOTHING CONCRETE IS EVER OFFERED
TO SUPPORT THE INNUENDO THAT JURIES WILL NOT CONVICT THE SAME
PROPORTION OF THOSE GUILTY OF CONTEMPT AS WOULD JUDGES.  SUCH EVIDENCE
AS IS AVAILABLE PLUS MY OWN EXPERIENCE CONVINCES ME THAT BY AND LARGE
JURIES ARE FULLY AS RESPONSIBLE IN METING OUT JUSTICE IN CRIMINAL CASES
AS ARE THE JUDICIARY.  (FN31)  AT THE SAME TIME, AND IMMEASURABLY MORE
IMPORTANT, TRIAL BEFORE A JURY AND IN FULL COMPLIANCE WITH ALL OF THE
OTHER PROTECTIONS OF THE BILL OF RIGHTS IS MUCH LESS LIKELY TO RESULT
IN A MISCARRIAGE OF JUSTICE THAN SUMMARY TRIAL BY THE SAME JUDGE WHO
ISSUED THE ORDER ALLEGEDLY VIOLATED. 

ALTHOUGH SOME ARE PRONE TO OVERLOOK IT, AN ACCUSED'S RIGHT TO TRIAL
BY A JURY OF HIS FELLOW CITIZENS WHEN CHARGED WITH A SERIOUS CRIMINAL
OFFENSE IS UNQUESTIONABLY ONE OF HIS MOST VALUABLE AND WELL-ESTABLISHED
SAFEGUARDS IN THIS COUNTRY.  (FN32)  IN THE WORDS OF CHIEF JUSTICE
COOLEY:  "THE LAW HAS ESTABLISHED THIS TRIBUNAL BECAUSE IT IS BELIEVED
THAT, FROM ITS NUMBERS, THE MODE OF THEIR SELECTION, AND THE FACT THAT
JURORS COME FROM ALL CLASSES OF SOCIETY, THEY ARE BETTER CALCULATED TO
JUDGE OF MOTIVES, WEIGH PROBABILITIES, AND TAKE WHAT MAY BE CALLED A
COMMON SENSE VIEW OF A SET OF CIRCUMSTANCES, INVOLVING BOTH ACT AND
INTENT, THAN ANY SINGLE MAN, HOWEVER PURE, WISE AND EMINENT HE MAY BE.
THIS IS THE THEORY OF THE LAW; AND AS APPLIED TO CRIMINAL ACCUSATIONS,
IT IS EMINENTLY WISE, AND FAVORABLE ALIKE TO LIBERTY AND TO JUSTICE." 
PEOPLE V. GARBUTT, 17 MICH. 9, 27.  TRIAL BY AN IMPARTIAL JURY OF
INDEPENDENT LAYMEN RAISES ANOTHER IMPOSING BARRIER TO OPPRESSION BY
GOVERNMENT OFFICERS.  AS ONE OF THE MORE PERCEPTIVE STUDENTS OF OUR
EXPERIMENT IN FREEDOM KEENLY OBSERVED, "THE INSTITUTION OF THE JURY
...  PLACES THE REAL DIRECTION OF SOCIETY IN THE HANDS OF THE GOVERNED,
OR OF A PORTION OF THE GOVERNED, AND NOT IN THAT OF THE GOVERNMENT."  1
DE TOCQUEVILLE, DEMOCRACY IN AMERICA (REEVE TRANS., 1948 ED.), 282. 
THE JURY INJECTS A DEMOCRATIC ELEMENT INTO THE LAW.  THIS ELEMENT IS
VITAL TO THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE, NOT ONLY IN
SAFEGUARDING THE RIGHTS OF THE ACCUSED, BUT IN ENCOURAGING POPULAR
ACCEPTANCE OF THE LAWS AND THE NECESSARY GENERAL ACQUIESCENCE IN THEIR
APPLICATION.  IT CAN HARDLY BE DENIED THAT TRIAL BY JURY REMOVES A
GREAT BURDEN FROM THE SHOULDERS OF THE JUDICIARY.  MARTYRDOM DOES NOT
COME EASILY TO A MAN WHO HAS BEEN FOUND GUILTY AS CHARGED BY TWELVE OF
HIS NEIGHBORS AND FELLOW CITIZENS. 

IT IS UNDOUBTEDLY TRUE THAT A JUDGE CAN DISPOSE OF CHARGES OF
CRIMINAL CONTEMPT FASTER AND CHEAPER THAN A JURY.  BUT SUCH TRIFLING
ECONOMIES AS MAY RESULT HAVE NOT GENERALLY BEEN THOUGHT SUFFICIENT
REASON FOR ABANDONING OUR GREAT CONSTITUTIONAL SAFEGUARDS AIMED AT
PROTECTING FREEDOM AND OTHER BASIC HUMAN RIGHTS OF INCALCULABLE VALUE. 
CHEAP, EASY CONVICTIONS WERE NOT THE PRIMARY CONCERN OF THOSE WHO
ADOPTED THE CONSTITUTION AND THE BILL OF RIGHTS.  EVERY PROCEDURAL
SAFEGUARD THEY ESTABLISHED PURPOSELY MADE IT MORE DIFFICULT FOR THE
GOVERNMENT TO CONVICT THOSE IT ACCUSED OF CRIMES.  ON THEIR SCALE OF
VALUES JUSTICE OCCUPIED AT LEAST AS HIGH A POSITION AS ECONOMY.  BUT
EVEN SETTING THIS DOMINANT CONSIDERATION TO ONE SIDE, WHAT COMPELLING
NECESSITY IS THERE FOR SPECIAL DISPATCH IN PUNISHING CRIMINAL
CONTEMPTS, ESPECIALLY THOSE OCCURRING BEYOND THE COURTROOM?  WHEN THE
DESIRED ACTION OR INACTION CAN NO LONGER BE COMPELLED BY COERCIVE
MEASURES AND ALL THAT REMAINS IS THE PUNISHMENT OF PAST SINS THERE IS
ADEQUATE TIME TO GIVE DEFENDANTS THE FULL BENEFIT OF THE ORDINARY
CRIMINAL PROCEDURES.  AS A MATTER OF FACT ANY SLIGHT DELAY INVOLVED
MIGHT WELL DISCOURAGE A COURT FROM RESORTING TO HASTY, UNNECESSARY
MEASURES TO CHASTISE SUSPECTED DISOBEDIENCE.  I BELIEVE THAT MR.
JUSTICE HOLMES, SPEAKING FOR HIMSELF AND MR. JUSTICE BRANDEIS, TOOK HIS
STAND ON INVULNERABLE GROUND WHEN HE DECLARED THAT WHERE "THERE IS NO
NEED FOR IMMEDIATE ACTION CONTEMPTS ARE LIKE ANY OTHER BREACH OF LAW
AND SHOULD BE DEALT WITH AS THE LAW DEALS WITH OTHER ILLEGAL ACTS." 
TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402, 425-426
(DISSENTING OPINION).  (FN33) 

FOR ALMOST A HALF CENTURY THE CLAYTON ACT HAS PROVIDED FOR TRIAL BY
JURY IN ALL CASES OF CRIMINAL CONTEMPT WHERE THE ALLEGED CONTEMPT IS
ALSO A VIOLATION OF A FEDERAL CRIMINAL STATUTE.  (FN34)  AND SINCE 1931
THE NORRIS-LAGUARDIA ACT HAS GRANTED THE SAME RIGHT WHERE A CHARGE OF
CRIMINAL CONTEMPT IS BASED ON THE ALLEGED VIOLATION OF AN INJUNCTION
ISSUED IN A LABOR DISPUTE.  (FN35) NOTWITHSTANDING THE FOREBODINGS OF
CALAMITY AND DESTRUCTION OF THE JUDICIAL SYSTEM WHICH PRECEDED,
ACCOMPANIED AND BRIEFLY FOLLOWED THESE REFORMS, THERE IS NO INDICATION
WHATEVER THAT TRIAL BY JURY HAS IMPAIRED THE EFFECTIVENESS OR AUTHORITY
OF THE COURTS IN THESE IMPORTANT AREAS OF THE LAW.  FURTHERMORE IT
APPEARS THAT IN AT LEAST FIVE STATES ONE ACCUSED OF THE CRIME OF
CONTEMPT IS ENTITLED, AT LEAST TO SOME DEGREE, TO DEMAND JURY TRIAL
WHERE THE ALLEGED CONTEMPT OCCURRED BEYOND THE COURTROOM.  (FN36)
AGAIN, I AM UNABLE TO FIND ANY EVIDENCE, OR EVEN AN ASSERTION, THAT
JUDICIAL ORDERS HAVE BEEN STRIPPED OF THEIR EFFICACY OR COURTS DEPRIVED
OF THEIR REQUISITE DIGNITY BY THE INTERVENTION OF THE JURY IN THOSE
STATES.  SO FAR AS CAN BE DISCERNED THE WHEELS OF JUSTICE HAVE NOT
GROUND TO A HALT OR EVEN NOTICEABLY SLOWED.  AFTER ALL THE ENGLISH
COURTS APPARENTLY GOT ON WITH THEIR BUSINESS FOR SIX OR SEVEN CENTURIES
WITHOUT ANY GENERAL POWER TO TRY CHARGES OF CRIMINAL CONTEMPT
SUMMARILY. 

I AM CONFIDENT THAT IN THE LONG RUN DUE RESPECT FOR THE COURTS AND
THEIR MANDATES WOULD BE MUCH MORE LIKELY IF THEY FAITHFULLY OBSERVED
THE PROCEDURES LAID DOWN BY OUR NATIONALLY ACCLAIMED CHARTER OF
LIBERTY, THE BILL OF RIGHTS.  (FN37)  RESPECT AND OBEDIENCE IN THIS
COUNTRY ARE NOT ENGENDERED - AND RIGHTLY NOT - BY ARBITRARY AND
AUTOCRATIC PROCEDURES.  IN THE END SUCH METHODS ONLY YIELD REAL
CONTEMPT FOR THE COURTS AND THE LAW.  THE CLASSIC EXAMPLE OF THIS IS
THE USE AND ABUSE OF THE INJUNCTION AND SUMMARY CONTEMPT POWER IN THE
LABOR FIELD.  THE FEDERAL COURTS HAVE STILL NOT RECOVERED FROM THE
SCARS INFLICTED BY THEIR INTERVENTION IN THAT AREA WHERE CONGRESS
FINALLY STEPPED IN AND PRESERVED THE RIGHT OF JURY TRIAL TO ALL THOSE
CHARGED WITH THE CRIME OF CONTEMPT. 

IN THE LAST ANALYSIS THERE IS NO JUSTIFICATION IN HISTORY, IN
NECESSITY, OR MOST IMPORTANT IN THE CONSTITUTION FOR TRYING THOSE
CHARGED WITH VIOLATING A COURT'S DECREE IN A MANNER WHOLLY DIFFERENT
FROM THOSE ACCUSED OF DISOBEYING ANY OTHER MANDATE OF THE STATE.  IT IS
SIGNIFICANT THAT NEITHER THE COURT NOR THE GOVERNMENT MAKES ANY SERIOUS
EFFORT TO JUSTIFY SUCH DIFFERENTIATION EXCEPT THAT IT HAS BEEN
SANCTIONED BY PRIOR DECISIONS.  UNDER THE CONSTITUTION COURTS ARE
MERELY ONE OF THE COORDINATE AGENCIES WHICH HOLD AND EXERCISE
GOVERNMENTAL POWER.  THEIR DECREES ARE SIMPLY ANOTHER FROM OF SOVEREIGN
DIRECTIVE AIMED AT GUIDING THE CITIZEN'S ACTIVITY.  I CAN PERCEIVE
NOTHING WHICH PLACES THESE DECREES ON ANY HIGHER OR DIFFERENT PLANE
THAN THE LAWS OF CONGRESS OR THE REGULATIONS OF THE EXECUTIVE INSOFAR
AS PUNISHMENT FOR THEIR VIOLATION IS CONCERNED.  THERE IS NO VALID
REASON WHY THEY SHOULD BE SINGLED OUT FOR AN EXTRAORDINARY AND
ESSENTIALLY ARBITRARY MODE OF ENFORCEMENT.  UNFORTUNATELY JUDGES AND
LAWYERS HAVE TOLD EACH OTHER THE CONTRARY SO OFTEN THAT THEY HAVE COME
TO ACCEPT IT AS THE GOSPEL TRUTH.  IN MY JUDGMENT TRIAL BY THE SAME
PROCEDURES, CONSTITUTIONAL AND OTHERWISE, WHICH ARE EXTENDED TO
CRIMINAL DEFENDANTS IN ALL OTHER INSTANCES IS ALSO WHOLLY SUFFICIENT
FOR THE CRIME OF CONTEMPT. 

FN1  THE TERM "SUMMARY PROCEEDING" (OR "SUMMARY TRIAL") IS USED IN
ITS ORDINARY SENSE TO REFER TO A "FORM OF TRIAL IN WHICH THE ANCIENT
ESTABLISHED COURSE OF LEGAL PROCEEDINGS IS DISREGARDED, ESPECIALLY IN
THE MATTER OF TRIAL BY JURY, AND, IN THE CASE OF THE HEAVIER CRIMES,
PRESENTMENT BY A GRAND JURY."  3 BOUVIER'S LAW DICTIONARY (8TH ED.
1914) 3182.  OF COURSE AS THE LAW NOW STANDS CONTEMPTS COMMITTED IN THE
PRESENCE OF THE JUDGE MAY BE PUNISHED WITHOUT ANY HEARING OR TRIAL AT
ALL, SUMMARY OR OTHERWISE.  FOR A FLAGRANT EXAMPLE SEE SACHER V. UNITED
STATES, 343 U.S. 1. 

FN2  STATE EX REL. ASHBAUGH V. CIRCUIT COURT, 97 WIS. 1, 8, 72 N.W.
193, 194-195. 

FN3  THE PRECEDENTS ARE ADEQUATELY COLLECTED IN NOTE 14 OF THE
COURT'S OPINION. 

MUCH OF WHAT IS SAID IN THIS OPINION IS EQUALLY APPLICABLE TO
CONTEMPTS COMMITTED IN THE PRESENCE OF THE COURT.  MY OPPOSITION TO
SUMMARY PUNISHMENT FOR THOSE CONTEMPTS WAS FULLY SET FORTH IN MY
DISSENT IN SACHER V. UNITED STATES, 343 U.S. 1, 14. 

FN4  "I  ...  AM QUITE WILLING THAT IT BE REGARDED HEREAFTER AS THE
LAW OF THIS COURT, THAT ITS OPINION UPON THE CONSTRUCTION OF THE
CONSTITUTION IS ALWAYS OPEN TO DISCUSSION WHEN IT IS SUPPOSED TO HAVE
BEEN FOUNDED IN ERROR, AND THAT ITS JUDICIAL AUTHORITY SHOULD HEREAFTER
DEPEND ALTOGETHER ON THE FORCE OF THE REASONING BY WHICH IT IS
SUPPORTED."  CHIEF JUSTICE TANEY, PASSENGER CASES, 7 HOW.  283, 470
(DISSENTING OPINION). 

FN5  FRANKFURTER AND LANDIS, POWER TO REGULATE CONTEMPTS, 37 HARV. L.
REV. 1010, 1011. 

IT ALSO SEEMS SIGNIFICANT THAT THE INITIAL DECISIONS BY THIS COURT
ACTUALLY UPHOLDING THE POWER OF THE FEDERAL COURTS TO PUNISH CONTEMPTS
BY SUMMARY PROCESS WERE NOT MADE UNTIL AS LATE AS THE FINAL DECADES OF
THE LAST CENTURY, ALMOST A FULL CENTURY AFTER THE ADOPTION OF THE
CONSTITUTION.  SINCE THAT TIME THE POWER HAS BEEN VIGOROUSLY CHALLENGED
ON A NUMBER OF OCCASIONS.  SEE, E.G., TOLEDO NEWSPAPER CO. V. UNITED
STATES, 247 U.S. 402, 425 (DISSENTING OPINION); SACHER V. UNITED
STATES, 343 U.S. 1, 14 (DISSENTING OPINION).  WITHIN THE PAST FEW YEARS
THERE HAS BEEN A TENDENCY ON THE PART OF THIS COURT TO RESTRICT THE
SUBSTANTIVE SCOPE OF THE CONTEMPT POWER TO NARROWER BOUNDS THAN HAD
BEEN FORMERLY THOUGHT TO EXIST.  SEE, E.G., NYE V. UNITED STATES, 313
U.S. 33; BRIDGES V. CALIFORNIA, 314 U.S.  252; IN RE MICHAEL, 326 U.S.
224; CAMMER V. UNITED STATES, 350 U.S. 399.  CF. IN RE OLIVER, 333 U.S.
257.  IN SUBSTANTIAL PART THIS IS ATTRIBUTABLE TO A DEEPLY FELT
ANTIPATHY TOWARD THE ARBITRARY PROCEDURES NOW USED TO PUNISH
CONTEMPTS.    FN6  PERHAPS THE CLASSIC EXAMPLE IS THE MUCH CRITICIZED
DECISION IN IN RE DEBS, 158 U.S. 564.  FOR SOME OF THE MILDER COMMENT
SEE LEWIS, A PROTEST AGAINST ADMINISTERING CRIMINAL LAW BY INJUNCTION -
THE DEBS CASE, 42 AM. L. REG. 879; LEWIS, STRIKES AND COURTS OF EQUITY,
46 AM. L. REG. 1; DUNBAR, GOVERNMENT BY INJUNCTION, 13 L.Q. REV. 347;
GREGORY, GOVERNMENT BY INJUNCTION, 11 HARV. L. REV. 487. 

FN7  E.G., SEE BEAUHARNAIS V. ILLINOIS, 343 U.S. 250; PEREZ V.
BROWNELL, ANTE, P. 44. 

FN8  A SERIES OF RECENT CASES IN THIS COURT ALONE INDICATES THAT THE
PERSONAL EMOTIONS OR OPINIONS OF JUDGES OFTEN BECOME DEEPLY INVOLVED IN
THE PUNISHMENT OF AN ALLEGED CONTEMPT.  SEE, E.G., FISHER V. PACE, 336
U.S. 155; SACHER V. UNITED STATES, 343 U.S. 1; OFFUTT V. UNITED STATES,
348 U.S. 11; NILVA V. UNITED STATES, 352 U.S. 385; YATES V. UNITED
STATES, 355 U.S. 66. 

FN9  OSWALD, CONTEMPT OF COURT (3D ED. 1911), 6. 

FN10  SEE PP. 202-213, INFRA. 

FN11  IN ACCORDANCE WITH ESTABLISHED USAGE 18 U.S.C. SEC. 1 DEFINES A
FELONY AS ANY "OFFENSE PUNISHABLE BY DEATH OR IMPRISONMENT FOR A TERM
EXCEEDING ONE YEAR."  BY THIS STANDARD THE OFFENSE OF CONTEMPT IS NOT
ONLY A CRIME, BUT A FELONY - A CRIME OF THE GRAVEST AND MOST SERIOUS
KIND. 

OF COURSE IF THE MAXIMUM PUNISHMENT FOR CRIMINAL CONTEMPT WERE
SUFFICIENTLY LIMITED THAT OFFENSE MIGHT NO LONGER FALL WITHIN THE
CATEGORY OF "CRIMES"; INSTEAD IT MIGHT THEN BE REGARDED, IN THE LIGHT
OF OUR PREVIOUS DECISIONS, AS A "PETTY" OR "MINOR" OFFENSE FOR WHICH
THE DEFENDANT WOULD NOT NECESSARILY BE ENTITLED TO TRIAL BY JURY.  SEE
DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617; CALLAN V. WILSON, 127
U.S. 540. 

FN12  CF. NEW ORLEANS V. STEAMSHIP CO., 20 WALL.  387, 392 ("CONTEMPT
OF COURT IS A SPECIFIC CRIMINAL OFFENCE.").  AND SEE MICHAELSON V.
UNITED STATES EX REL. CHICAGO, ST. P.,M.&O.R. CO., 266 U.S. 42, 66-67;
PENDERGAST V. UNITED STATES, 317 U.S. 412, 417-418. 

"SINCE A CHARGE OF CRIMINAL CONTEMPT IS ESSENTIALLY AN ACCUSATION OF
CRIME, ALL THE CONSTITUTIONAL SAFEGUARDS AVAILABLE TO AN ACCUSED IN A
CRIMINAL TRIAL SHOULD BE EXTENDED TO PROSECUTIONS FOR SUCH CONTEMPT." 
FRANKFURTER AND GREENE, THE LABOR INJUNCTION, 226. 

FN13  18 U.S.C. SEC. 3146. 

FN14  ONE SCHOLAR HAS ARGUED THAT EVEN CONTEMPTS IN THE FACE OF THE
COURTS WERE TRIED BY JURY AFTER INDICTMENT BY GRAND JURY UNTIL THE
REIGN OF ELIZABETH I. SOLLY-FLOOD, PRINCE HENRY OF MONMOUTH AND CHIEF
JUSTICE GASCOIGN, 3 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY
(N.S.)  47.  ALTHOUGH AGREEING THAT CONTEMPTS IN FACIE WERE OFTEN TRIED
BY A JURY UP TO AND BEYOND THIS PERIOD, FOX TAKES THE VIEW THAT SUCH
CONTEMPTS WERE ALSO PUNISHABLE BY SUMMARY PROCEDURES FROM THE EARLY
COMMON LAW. 

FN15  IN PASSING IT IS INTERESTING TO NOTE THAT EVEN WILMOT FELT
OBLIGED TO BOLSTER HIS POSITION BY POINTING TO THE FACT THAT A
DEFENDANT, UNDER A NOTION THEN PREVALENT, COULD EXONERATE HIMSELF FROM
A CHARGE OF CONTEMPT BY FULLY DENYING THE CHARGES UNDER OATH.  IN THIS
EVENT HE COULD ONLY BE PROSECUTED FOR FALSE SWEARING IN WHICH CASE HE
WAS ENTITLED, AS WILMOT ELABORATELY OBSERVES, TO TRIAL BY JURY.  SEE
CURTIS AND CURTIS, THE STORY OF A NOTION IN THE LAW OF CRIMINAL
CONTEMPT, 41 HARV. L. REV. 51. 

FN16  FOX, THE HISTORY OF CONTEMPT OF COURT, VII. 

FN17  ID., AT 116-117.  SEE ALSO, ID., AT 3-4, 13, 54-55, 71-72, 89. 

FN18  POWER TO REGULATE CONTEMPTS, 37 HARV. L. REV. 1010, 1042,
1046. 

FN19  CONTEMPT OF COURT, CRIMINAL AND CIVIL, 21 HARV. L. REV. 161,
169-170, 174. 

FN20  SEE UNITED STATES V. THOMPSON, 214 F.2D 545; UNITED STATES V.
HALL, 198 F.2D 726. 

FN21  ALTHOUGH RECORDS OF THE COLONIAL ERA ARE EXTREMELY FRAGMENTARY
AND INACCESSIBLE APPARENTLY SUCH CONTEMPTS AS EXISTED WERE NOT THE
SUBJECT OF MAJOR PUNISHMENT IN THAT PERIOD.  FROM THE SCATTERED
REPORTED CASES IT APPEARS THAT ALLEGED OFFENDERS WERE LET OFF AFTER AN
APOLOGY, A REPRIMAND OR A SMALL FINE OR OTHER RELATIVELY SLIGHT
PUNISHMENT.  I HAVE FOUND NO INSTANCE WHERE ANYONE WAS UNCONDITIONALLY
IMPRISONED FOR EVEN A TERM OF MONTHS, LET ALONE YEARS, DURING THAT ERA
WHEN EXTREMELY HARSH PENALTIES WERE OTHERWISE COMMONPLACE. 

FN22  THE FOLLOWING ARE MERELY RANDOM SAMPLES OF IMPORTANT AND FAR
REACHING FEDERAL REGULATORY ACTS NOW IN EFFECT UNDER WHICH A VIOLATION
OF ANY PROVISION OF THE ACT IS NOT ONLY A STATUTORY CRIME PUNISHABLE AS
SUCH BUT ALSO MAY BE ENJOINED AT THE GOVERNMENT'S REQUEST AND PUNISHED
AS A CRIMINAL CONTEMPT BY SUMMARY PROCESS IF THE INJUNCTION IS
DISOBEYED.  SECURITIES EXCHANGE ACT, 48 STAT. 900, 15 U.S.C. SEC. 78U;
NATURAL GAS ACT, 52 STAT. 832, 15 U.S.C. SEC. 717S; FAIR LABOR
STANDARDS ACT, 52 STAT. 1069, 29 U.S.C.  SEC. 217; ATOMIC ENERGY ACT,
68 STAT. 959, 42 U.S.C. (SUPP. IV) SEC. 2280; FEDERAL COMMUNICATIONS
ACT, 48 STAT. 1092, 47 U.S.C. SEC. 401; DEFENSE PRODUCTION ACT OF 1950,
64 STAT. 817, 50 U.S.C. APP. SEC. 2156. 

FN23  AS EARLY AS 1765 DELEGATES FROM NINE COLONIES MEETING IN NEW
YORK DECLARED IN A DECLARATION OF RIGHTS THAT TRIAL BY JURY WAS THE
"INHERENT AND INVALUABLE RIGHT" OF EVERY COLONIAL.  43 HARVARD
CLASSICS, 147, 148. 

FN24  IN 1775 JEFFERSON PROTESTED:  "PARLIAMENT HAS EXTENDED THE
JURISDICTION OF THE COURTS OF ADMIRALTY BEYOND THEIR ANTIENT LIMITS
THEREBY DEPRIVING US OF THE INESTIMABLE RIGHT OF TRIAL BY JURY IN CASES
AFFECTING BOTH LIFE AND PROPERTY AND SUBJECTING BOTH TO THE ARBITRARY
DECISION OF A SINGLE AND DEPENDENT JUDGE."  2 JOURNALS OF THE
CONTINENTAL CONGRESS (FORD ED.)  132. 

FN25  ALTHOUGH SECTION 17 OF THE JUDICIARY ACT OF 1789, 1 STAT. 73,
83, AUTHORIZED THE FEDERAL COURTS TO PUNISH CONTEMPTS "IN ANY CAUSE OR
HEARING BEFORE THE SAME," IT DID NOT, AS THIS COURT HAS POINTED OUT,
DEFINE WHAT WERE CONTEMPTS OR PRESCRIBE THE METHOD OF PUNISHING THEM. 
SAVIN, PETITIONER, 131 U.S. 267, 275.  SECTION 17, WHICH CONTAINS A
NUMBER OF OTHER PROVISIONS, APPEARS TO HAVE BEEN A COMPARATIVELY
INSIGNIFICANT PROVISION OF THE JUDICIAL CODE ENACTED BY THE CONGRESS
WITHOUT MATERIAL DISCUSSION IN THE MIDST OF 34 OTHER SECTIONS, MANY OF
WHICH WERE BOTH EXTREMELY IMPORTANT AND HIGHLY CONTROVERSIAL. 

FN26  SEE, E.G., 4 BLACKSTONE'S COMMENTARIES 1-6, 119-126, 280-287. 
ALSO PERTINENT HERE IS BLACKSTONE'S OFT-QUOTED LAUDATION OF TRIAL BY
JURY "AS THE GLORY OF THE ENGLISH LAW  ...  .  IT IS THE MOST
TRANSCENDENT PRIVILEGE WHICH ANY SUBJECT CAN ENJOY, OR WISH FOR, THAT
HE CANNOT BE AFFECTED EITHER IN HIS PROPERTY, HIS LIBERTY, OR HIS
PERSON BUT BY THE UNANIMOUS CONSENT OF TWELVE OF HIS NEIGHBOURS AND
EQUALS."  3 ID., AT 379. 

FN27  SEE, E.G., 1 HAWKINS, PLEAS OF THE CROWN (6TH ED. 1787), 87. 

FN28  BALDWIN, THE AMERICAN JUDICIARY, 14. 

"AFTER THE REVOLUTION THE PUBLIC WAS EXTREMELY HOSTILE TO ENGLAND AND
TO ALL THAT WAS ENGLISH AND IT WAS IMPOSSIBLE FOR THE COMMON LAW TO
ESCAPE THE ODIUM OF ITS ENGLISH ORIGIN."  POUND, THE SPIRIT OF THE
COMMON LAW, 116.  AND SEE WARREN, HISTORY OF THE AMERICAN BAR, 224
228. 

FN29  IN 1804 THE CHIEF JUSTICE AND TWO ASSOCIATE JUSTICES OF THE
PENNSYLVANIA SUPREME COURT WERE ACTUALLY IMPEACHED FOR SENTENCING A
PERSON TO JAIL FOR CONTEMPT.  IN PART THE IMPEACHMENT RESTED ON THE
FEELING THAT PUNISHMENT OF CONTEMPT BY SUMMARY PROCESS WAS AN ARBITRARY
PRACTICE OF THE COMMON LAW UNSUITED TO THIS COUNTRY.  WHILE THE
JUSTICES WERE NARROWLY ACQUITTED THIS APPARENTLY ONLY AGGRAVATED
POPULAR ANTAGONISM TOWARD THE CONTEMPT POWER.  SEE 3 MCMASTER, HISTORY
OF THE PEOPLE OF THE UNITED STATES (1938 ED.), 153-162. 

FN30  1 WORKS OF EDWARD LIVINGSTON 264. 

FN31  SEE, E.G., SUNDERLAND, TRIAL BY JURY, 11 UNIV.  OF CIN.  L.
REV. 119, 120; HARTSHORNE, JURY VERDICTS:  A STUDY OF THEIR
CHARACTERISTICS AND TRENDS, 35 A.B.A.J. 113. 

FN32  SEE EX PARTE MILLIGAN, 4 WALL.  2, 122-123; THOMPSON V. UTAH,
170 U.S. 343, 349-350; DIMICK V. SCHIEDT, 293, U.S. 474, 485-486;
UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S. 11, 16, 18-19; THE
FEDERALIST, NO. 83 (HAMILTON); 2 STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES, 544; 2 WILSON'S WORKS (ANDREWS ED.
1896) 222. 

FN33  AGAIN THIS CASE APTLY DEMONSTRATES THE POINT.  HERE THE
DEFENDANTS SURRENDERED SEVERAL YEARS AFTER THEY HAD BEEN ORDERED TO
APPEAR AND SERVE THEIR SENTENCES.  THERE WAS NO REASON FOR URGENT
ACTION TO PUNISH THEM FOR THEIR ABSENCE, THERE WAS AMPLE TIME TO
IMPANEL A JURY AND PROSECUTE THEM IN THE REGULAR MANNER.  AS A MATTER
OF FACT ALMOST A MONTH AND A HALF DID ELAPSE BETWEEN THEIR SURRENDER
AND TRIAL. 

ALLEGED CONTEMPTS COMMITTED BEYOND THE COURT'S PRESENCE WHERE THE
JUDGE HAS NO PERSONAL KNOWLEDGE OF THE MATERIAL FACTS ARE ESPECIALLY
SUITED FOR TRIAL BY JURY.  A HEARING MUST BE HELD, WITNESSES MUST BE
CALLED, AND EVIDENCE TAKEN IN ANY EVENT.  CF. COOKE V. UNITED STATES,
267 U.S. 517.  AND OFTEN, AS IN THIS CASE, CRUCIAL FACTS ARE IN CLOSE
DISPUTE. 

I MIGHT ADD, AT THIS POINT, THAT MR. JUSTICE BRENNAN HAS FORCEFULLY
DEMONSTRATED, IN MY JUDGMENT, THAT THE EVIDENCE IN THIS CASE WAS WHOLLY
INSUFFICIENT TO PROVE A CRUCIAL ELEMENT OF THE OFFENSE CHARGED -
NAMELY, NOTICE OF THE SURRENDER ORDER. 

FN34  38 STAT. 738-739, AS AMENDED, 18 U.S.C. SECS. 402, 3691. 

FN35  47 STAT. 72, 18 U.S.C. SEC. 3692. 

FN36 ARIZONA, REV. STAT. ANN., 1956, SEC. 12-863; GEORGIA, CODE ANN.,
1935, SEC.  24-105; KENTUCKY, REV. STAT. ANN., 1955, SEC. 432.260;
OKLAHOMA, STAT. ANN., 1936, TIT.  21, SEC. 567; PENNSYLVANIA, PURDON'S
STAT. ANN., 1930 (CUM. ANN. POCKET PT. 1957), TIT.  17, SEC. 2047. 

FN37  SEE BROWN, WHENCE COME THESE SINEWS?  12 WYO. L.J. 22. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

I DISSENT BECAUSE I DO NOT BELIEVE THAT THE EVIDENCE WAS SUFFICIENT
TO ESTABLISH BEYOND A REASONABLE DOUBT THE PETITIONERS' GUILT OF THE
CRIMINAL CONTEMPT CHARGED. 

PETITIONERS WERE AMONG 11 LEADERS OF THE COMMUNIST PARTY WHO WERE
CONVICTED OF VIOLATION OF THE SMITH ACT, NOW 18 U.S.C. SEC. 2385, ON
OCTOBER 14, 1949.  BOTH WERE SENTENCED TO A FINE OF $10,000 AND TO FIVE
YEARS' IMPRISONMENT, AND WERE ENLARGED ON BAIL PENDING APPEAL.  THE
COURT OF APPEALS AFFIRMED THE CONVICTIONS ON AUGUST 1, 1950, AND THIS
COURT IN TURN AFFIRMED ON JUNE 4, 1951.  DENNIS V. UNITED STATES, 341
U.S. 494.  ON JUNE 28, 1951, PRIOR TO FORMAL RECEIPT OF THE SUPREME
COURT JUDGMENT, THE DISTRICT COURT DREW UP A PROPOSED ORDER ON MANDATE
MAKING THE JUDGMENT OF THIS COURT THAT OF THE DISTRICT COURT.  THE LAST
PARAGRAPH "FURTHER ORDERED, ADJUDGED AND DECREED THAT THE DEFENDANTS
PERSONALLY SURRENDER TO THE UNITED STATES MARSHAL  ...  ON THE 2ND DAY
OF JULY, 1951  ...  ."  THIS PROPOSED ORDER WAS SERVED ON THE ATTORNEYS
FOR THE 11 AND THEY PROMISED TO BRING THEIR CLIENTS INTO COURT THE
FOLLOWING MONDAY, JULY 2, TO BEGIN SERVING THEIR SENTENCES.  ON FRIDAY,
JUNE 29, THE ATTORNEYS MET WITH ALL THE DEFENDANTS AND "ADVISED THAT
THEY ALL SHOULD BE PRESENT IN COURT ON MONDAY AND  ...  WERE ASSURED
THEY WOULD BE."  BUT BY MONDAY FOUR HAD ABSCONDED.  SINCE SEVEN WERE
PRESENT, HOWEVER, THE ORDER ON MANDATE WAS SIGNED, AND THE SEVEN WERE
TAKEN OFF TO SERVE THEIR PRISON TERMS.  THE COURT CANCELED THE BAIL OF
THE MISSING FOUR ON JULY 3 AND ISSUED A BENCH WARRANT FOR THEIR
ARREST.  TWO OF THE FOUR, HALL AND THOMPSON, WERE APPREHENDED IN 1951
AND 1953 RESPECTIVELY AND WERE CONVICTED OF CRIMINAL CONTEMPT.  UNITED
STATES V. HALL, 198 F.2D 726; UNITED STATES V. THOMPSON, 214 F.2D 545. 
THE PETITIONERS SURRENDERED VOLUNTARILY IN 1956 AND WERE LIKEWISE
CONVICTED OF CRIMINAL CONTEMPT.  THE CONTEMPT CHARGED IN EACH INSTANCE
WAS A VIOLATION OF 18 U.S.C. SEC. 401(3) BY DISOBEDIENCE OF THE
PROVISION OF THE ORDER ON MANDATE, ISSUED ON THE MORNING OF JULY 2,
1951, REQUIRING THE SURRENDER OF ALL THE DENNIS DEFENDANTS TO THE
UNITED STATES MARSHAL AT 11:05 A.M. ON THAT DAY.  SIGNIFICANTLY, AT THE
TIME THE JUDGE SIGNED THE ORDER HE LINED OUT THE HOUR OF SURRENDER,
APPEARING AS 10:30 IN THE PROPOSED ORDER, AND SUBSTITUTED 11:05, THE
TIME AT WHICH THE ORDER WAS ACTUALLY SIGNED.  SEE THE OPINION OF JUDGE
BIGGS IN UNITED STATES V. HALL, SUPRA, AT 732. 

THE MOST THAT CAN BE SAID IS THAT THE EVIDENCE MIGHT HAVE BEEN
SUFFICIENT TO SUPPORT CONVICTION OF THE PETITIONERS FOR BAIL JUMPING IF
THAT HAD BEEN AN OFFENSE AT THE TIME THEY FLED.  BUT BAIL JUMPING DID
NOT BECOME A SEPARATE CRIME UNTIL THREE YEARS AFTER THE PETITIONERS'
FLIGHT, WHEN THIS VOID IN THE LAW - HIGHLIGHTED BY THE PETITIONERS'
CONDUCT - LED THE DEPARTMENT OF JUSTICE TO SECURE THE ENACTMENT OF 18
U.S.C. SEC. 3146.  SEE H.R. REP. NO. 2104, 83D CONG., 2D SESS.  BUT, IN
ANY EVENT, BAIL JUMPING IS NOT THE OFFENSE CHARGED, AND, ALTHOUGH IT IS
CERTAINLY A MOST SERIOUS OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE,
IT IS NOT IN ITSELF A CRIMINAL CONTEMPT. 

THE COURT RELATES THE CRIMINAL CONTEMPT CHARGED TO BAIL JUMPING BY
ITS USE OF SEC.  3146 AS SUPPORT FOR THE SENTENCES IMPOSED UPON THE
PETITIONERS.  BUT BAIL JUMPING UNDER SEC. 3146 IS PROVED MERELY BY
EVIDENCE THAT THE ACCUSED WILLFULLY FAILED TO SURRENDER WITHIN 30 DAYS
AFTER INCURRING A FORFEITURE OF HIS BAIL.  MUCH MORE, HOWEVER, THAN
EVIDENCE SUSTAINING A CONVICTION FOR BAIL JUMPING IS NECESSARY TO
SUSTAIN CONVICTIONS FOR THE CONTEMPTS HERE CHARGED OF VIOLATING 18
U.S.C. SEC. 401(3) BY WILLFUL AND KNOWING DISOBEDIENCE OF A SINGLE
PROVISION OF THE ORDER ON MANDATE OF JULY 2, 1951.  THE INDISPENSABLE
ELEMENT OF THAT OFFENSE, TO BE PROVED BEYOND A REASONABLE DOUBT,
GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 444, IS THAT THE
PETITIONERS, WHO WERE NOT SERVED WITH THE ORDER, IN SOME OTHER WAY
OBTAINED ACTUAL KNOWLEDGE OF ITS EXISTENCE AND COMMAND.  KELTON V.
UNITED STATES, 294 F. 491; IN RE KWELMAN, 31 F. SUPP. 23; SEE WILSON V.
NORTH CAROLINA, 169 U.S. 586.    ASSESSMENT OF THE SUFFICIENCY OF THE
EVIDENCE BEARING ON THE PETITIONERS' KNOWLEDGE REQUIRES THAT THE
PRECISE TIME AT WHICH THE ORDER CAME INTO EXISTENCE BE KEPT CLEARLY IN
MIND.  THE COURT OF APPEALS BELOW FELL INTO PALPABLE ERROR IN READING
THE SPECIFICATIONS TO CHARGE "DISOBEDIENCE OF THE ORDER OF JUNE 28." 
241 F.2D 631, 632.  THE ORDER WAS NOT SIGNED OR ENTERED UNTIL COURT
CONVENED AFTER 10 O'CLOCK ON THE MORNING OF JULY 2.  WHAT HAPPENDED ON
JUNE 28 WAS THAT THE ATTORNEYS OF THE DENNIS DEFENDANTS WERE SERVED
WITH COPIES OF A PROPOSED ORDER TO BE ENTERED ON JULY 2.  BUT THE
ATTORNEYS' KNOWLEDGE CANNOT BE IMPUTED TO THEIR CLIENTS.  IN RE
KWELMAN, SUPRA.  THE PETITIONERS HAD ABSCONDED BY JULY 2, AND THE
RECORD IS COMPLETELY SILENT AS TO THEIR WHEREABOUTS FROM JUNE 29 UNTIL
THEY SURRENDERED ALMOST FIVE YEARS LATER.  CONCEDEDLY, DIRECT EVIDENCE
OF KNOWLEDGE BY THE PETITIONERS OF THE ORDER OF JULY 2 IS WHOLLY
LACKING AND THE CASE FOR CONVICTION RESTS ENTIRELY UPON CIRCUMSTANTIAL
EVIDENCE. 

THE PROOF UPON WHICH RELIANCE IS PLACED CONSISTS OF EVIDENCE (1) THAT
THE PETITIONERS KNEW ON JUNE 29, 1951, THAT THE ORDER WAS TO BE ENTERED
ON JULY 2, AND (2) THAT THE PETITIONERS MADE CERTAIN STATEMENTS TO THE
PRESS AT THE TIME OF THEIR SURRENDER ALMOST FIVE YEARS LATER. 

FIRST.  MANIFESTLY, FOREKNOWLEDGE THAT AN ORDER MIGHT COME INTO
EXISTENCE DOES NOT PROVE KNOWLEDGE THAT IT DID COME INTO EXISTENCE. 
EVEN IF THE PETITIONERS KNEW ON JUNE 29 THAT THE ORDER WAS LIKELY TO BE
SIGNED ON JULY 2, THE MOST THAT CAN BE SAID IS THAT AFTER JULY 2 THE
PETITIONERS KNEW THAT THE ORDER WAS TO HAVE BEEN ENTERED.  THIS, OF
COURSE, IS NOT THE SAME AS KNOWLEDGE THAT THE ORDER HAD BEEN ENTERED,
AND IT IS THE LATTER KNOWLEDGE WHICH THE GOVERNMENT MUST PROVE BEYOND A
REASONABLE DOUBT.  KNOWLEDGE THAT THE ORDER HAD BEEN ENTERED, OF
COURSE, COULD ONLY BE ACQUIRED BY THE PETITIONERS AFTER THE ORDER HAD
COME INTO EXISTENCE ON THE MORNING OF JULY 2; AND THAT KNOWLEDGE CAN
HARDLY BE INFERRED FROM THE EVENTS WHICH OCCURRED PRIOR TO THE MOMENT
THE ORDER WAS ENTERED.  SEE THE OPINION OF JUDGE BIGGS IN UNITED STATES
V. HALL, 198 F.2D 726, 733-735. 

THE GOVERNMENT'S LACK OF CONFIDENCE IN THE PROOFS TO SHOW ACTUAL
KNOWLEDGE IS IMPLICIT IN ITS EFFORT TO SUSTAIN THE CONVICTIONS ON A
THEORY OF CONSTRUCTIVE KNOWLEDGE DERIVED FROM THE EVENTS OF JUNE 28 AND
FROM THE EVIDENCE THAT ON JUNE 29 THE PETITIONERS AND THE OTHER DENNIS
DEFENDANTS WERE TOLD BY THE ATTORNEYS THAT THEY MUST BE IN COURT ON
JULY 2.  THE SHORT ANSWER TO THIS CONTENTION IS THAT THE PETITIONERS
ARE NOT CHARGED WITH DISOBEDIENCE OF AN ORDER OF WHICH THEY HAD
CONSTRUCTIVE KNOWLEDGE BUT WITH DISOBEDIENCE OF AN ORDER OF WHICH THEY
HAD ACTUAL KNOWLEDGE, AND CONVICTION CAN BE HAD ON THE PRECISE CHARGE,
OR NOT AT ALL.  IN ANY EVENT, THE SOLE AUTHORITY RELIED UPON BY THE
GOVERNMENT IS A DICTUM IN PETTIBONE V. UNITED STATES, 148 U.S. 197, 206
207, TO THE EFFECT THAT PERSONS MAY BE CHARGEABLE WITH KNOWLEDGE OF AN
ORDER FROM NOTICE THAT AN APPLICATION WILL BE MADE FOR THE ORDER.  BUT
WHATEVER ITS UTILITY IN CIVIL CASES, THEORIES OF CONSTRUCTIVE KNOWLEDGE
HAVE NO PLACE IN THE CRIMINAL LAW.  NOT ONLY IS THIS FORCEFULLY
DEMONSTRATED IN JUDGE BIGGS' OPINION IN UNITED STATES V. HALL, SUPRA,
BUT THE PETTIBONE DICTUM HAS NOT BEEN FOLLOWED IN CRIMINAL CONTEMPT
CASES.  KELTON V. UNITED STATES, SUPRA; IN RE KWELMAN, SUPRA. 

SECOND.  SINCE THE EVIDENCE OF KNOWLEDGE THAT AN ORDER WAS TO BE
ENTERED IS NOT SUFFICIENT TO PROVE KNOWLEDGE THAT THE ORDER WAS
ENTERED, WHAT OF THE EVIDENCE OF WHAT WAS SAID BY THE PETITIONERS AT
THE TIME OF THEIR SURRENDER?  THE COURT REFERS TO THE PETITIONERS'
PRESS RELEASES IN WHICH THEY STATED THEY WOULD SURRENDER TO "ENTER
PRISON," AND TO GREEN'S FURTHER REFERENCE THAT HE INTENDED TO "GO TO
THE UNITED STATES MARSHAL'S OFFICE."  BUT, OF COURSE, SURRENDER COULD
ONLY HAVE BEEN TO ENTER PRISON.  THEIR STATEMENTS PROVE NO MORE THAN
WHAT THE PETITIONERS AND EVERYONE ELSE KNEW HAD TO HAPPEN WHEN THIS
COURT AFFIRMED THEIR SMITH ACT CONVICTIONS IN 1951.  AND IT CAN HARDLY
BE DOUBTED THAT, AFTER THE MANY MONTHS THESE PETITIONERS SPENT AT THEIR
TRIAL IN THE FOLEY SQUARE COURTHOUSE, BOTH THE LOCATION AND FUNCTION OF
THE MARSHAL'S OFFICE WAS WELL KNOWN TO THEM.  THAT THE COURT MUST
RESORT TO THESE STATEMENTS TO FIND PROBATIVE WEIGHT IN THE EVIDENCE
DEMONSTRATES THE INHERENT INSUFFICIENCY OF THE PROOFS TO SHOW ACTUAL
KNOWLEDGE. 

NOR DO THERE APPEAR OTHER CIRCUMSTANCES FROM WHICH KNOWLEDGE MAY BE
INFERRED.  THE COURT'S OPINION GIVES THE IMPRESSION THAT THE SURRENDER
ORDER WAS AN ORDER IN FAMILIAR AND CUSTOMARY USE, WELL KNOWN TO THE
SOPHISTICATED IN THE CRIMINAL LAW.  I DOUBT THAT EVEN WIDELY
EXPERIENCED CRIMINAL LAWYERS ENCOUNTER THIS PROVISION VERY OFTEN.  THE
PROVISION WAS NOT THE OCCASION FOR THE ENTRY OF THE ORDER OF JULY 2. 
THE PURPOSE OF THAT ORDER, AS ITS CAPTION "ORDER ON MANDATE" SHOWS, WAS
TO ENTER AN ORDER IN THE DISTRICT COURT TO GIVE EFFECT TO THE MANDATE
OF THIS COURT AFFIRMING THE CONVICTIONS OF THE DENNIS DEFENDANTS.  BUT
FOR THE NECESSITY OF ENTERING AN ORDER FOR THAT PURPOSE THERE MAY WELL
HAVE BEEN NO SURRENDER ORDER.  NO STATUTE OR RULE OF COURT, EVEN A
LOCAL RULE OF THE DISTRICT COURT, CAN BE POINTED TO AS REQUIRING
INCLUSION OF THE SURRENDER PROVISION.  THE BONDSMAN WHO STANDS TO LOSE
THE POSTED BAIL, NOT A SURRENDER ORDER, IS USUALLY COUNTED ON TO
PRODUCE THE DEFENDANT.  HEARINGS BEFORE SUBCOMMITTEE NO. 4 OF THE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 8658, 83D CONG., 2D SESS. 14-19. 
THIS IS NOT TO SAY, OF COURSE, THAT THE PROVISION WAS IN ANY WAY
IMPROPER OR ILLEGAL OR SERVED NO USEFUL PURPOSE.  NEVERTHELESS ITS
NOVELTY IS INDICATED WHEN THE COURT MUST LOOK TO A PROVISION OF THE
BAIL BOND AS THE ONLY DISCOVERABLE SOURCE OF AUTHORITY FOR THE
PROVISION. 

I CAN WELL UNDERSTAND WHY THE GOVERNMENT SHOULD HAVE DESIRED TO
PROCEED AGAINST THESE PETITIONERS FOR THEIR SERIOUS OBSTRUCTION OF THE
ADMINISTRATION OF JUSTICE.  IN THE ABSENCE OF A STATUTORY PROVISION
AIMED DIRECTLY AT THIS CONDUCT, THE GOVERNMENT RESORTED TO THIS ATTEMPT
TO PUNISH THAT OBSTRUCTION AS A CRIMINAL CONTEMPT.  HOWEVER, REGARDLESS
OF THE VIEW TAKEN ON THE UNDERLYING CONSTITUTIONAL ISSUE INVOLVED, THE
ODIOUSNESS OF THE OFFENSE CANNOT BE A REASON FOR RELAXING THE NORMAL
STANDARDS OF PROOF REQUIRED TO SUSTAIN A CONVICTION UNDER SEC. 401(3). 
BELIEVING THAT THE PROOFS IN THIS CASE FALL SHORT OF THAT STANDARD, I
MUST DISSENT. 
..END :





















PEORIA TRANSIT LINES V. CITY OF PEORIA 356 U.S. 225 


NO. 780.  DECIDED MARCH 31, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  11 ILL. 2D 520, 144
N.E.2D 609. 


PEORIA TRANSIT LINES, INC., V. CITY OF PEORIA. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















CANTWELL V. CANTWELL 356 U.S. 225 


NO. 766.  DECIDED MARCH 31, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED.  - REPORTED BELOW:  237 IND. 168, 143 N.E.2D 275. 


CANTWELL V. CANTWELL. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















PRATT V. DEPARTMENT OF THE ARMY 356 U.S. 226 


NO. 455, MISC.  DECIDED MARCH 31, 1958 - APPEAL DISMISSED. 


PRATT V. DEPARTMENT OF THE ARMY ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :


















STRONG V. UNITED STATES 356 U.S. 226 


NO. 456, MISC.  DECIDED MARCH 31, 1958 - APPEAL DISMISSED.  - REPORTED
BELOW:  155 F. SUPP. 468. 


STRONG V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
..END :

















COMMISSIONER OF INTERNAL REVENUE V. SULLIVAN 356 U.S. 27 


NO. 119.  ARGUED JANUARY 30, 1958.  - DECIDED MARCH 17, 1958.  - 241
F.2D 46, 242 F.2D 558, AFFIRMED. 


AMOUNTS EXPENDED TO LEASE PREMISES AND HIRE EMPLOYEES FOR THE CONDUCT
OF GAMBLING ENTERPRISES, ILLEGAL UNDER STATE LAW, ARE DEDUCTIBLE AS
ORDINARY AND NECESSARY BUSINESS EXPENSES WITHIN THE MEANING OF SEC.
23(A)(1)(A) OF THE INTERNAL REVENUE CODE OF 1939.  PP. 27-29. 

COMMISSIONER OF INTERNAL REVENUE V. SULLIVAN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER AMOUNTS EXPENDED TO LEASE PREMISES AND HIRE
EMPLOYEES FOR THE CONDUCT OF ALLEGED ILLEGAL GAMBLING ENTERPRISES ARE
DEDUCTIBLE AS ORDINARY AND NECESSARY BUSINESS EXPENSES WITHIN THE
MEANING OF SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE OF 1939. 
(FN1) 

THE TAXPAYERS RECEIVED INCOME FROM BOOKMAKING ESTABLISHMENTS IN
CHICAGO, ILL.  THE TAX COURT FOUND THAT THESE ENTERPRISES WERE ILLEGAL
UNDER ILLINOIS LAW, (FN2) THAT THE ACTS PERFORMED BY THE EMPLOYEES
CONSTITUTED VIOLATIONS OF THAT LAW, AND THAT THE PAYMENT OF RENT FOR
THE USE OF THE PREMISES FOR THE PURPOSE OF BOOKMAKING WAS ALSO ILLEGAL
UNDER THAT LAW.  THE TAX COURT ACCORDINGLY HELD THAT THE AMOUNT PAID
FOR WAGES AND FOR RENT COULD NOT BE DEDUCTED FROM GROSS INCOME SINCE
THOSE DEDUCTIONS WERE FOR EXPENDITURES MADE IN CONNECTION WITH ILLEGAL
ACTS.  15 CCH TC MEM. DEC. 23, 25 T.C. 513.  THE COURT OF APPEALS
REVERSED, 241 F.2D 46, 242 F.2D 558, ON THE BASIS OF ITS PRIOR DECISION
IN COMMISSIONER V. DOYLE, 231 F.2D 635.  THE CASE IS HERE ON A PETITION
FOR CERTIORARI, 354 U.S. 920, FOR CONSIDERATION IN CONNECTION WITH THE
COMPANION CASES HOOVER MOTOR EXPRESS CO. V. UNITED STATES, POST, P. 38,
AND TANK TRUCK RENTALS, INC., V. COMMISSIONER, POST, P. 30, DECIDED
THIS DAY. 

DEDUCTIONS ARE A MATTER OF GRACE AND CONGRESS CAN, OF COURSE,
DISALLOW THEM AS IT CHOOSES.  AT TIMES THE POLICY TO DISALLOW EXPENSES
IN CONNECTION WITH CERTAIN CONDEMNED ACTIVITIES IS CLEAR.  IT WAS MADE
SO BY THE REGULATIONS IN TEXTILE MILLS CORP. V. COMMISSIONER, 314 U.S.
326.  ANY INFERENCE OF DISAPPROVAL OF THESE EXPENSES AS DEDUCTIONS IS
ABSENT HERE.  THE REGULATIONS, INDEED, POINT THE OTHER WAY, FOR THEY
MAKE THE FEDERAL EXCISE TAX ON WAGERS DEDUCTIBLE AS AN ORDINARY AND
NECESSARY BUSINESS EXPENSE.  (FN3)  THIS SEEMS TO US TO BE RECOGNITION
OF A GAMBLING ENTERPRISE AS A BUSINESS FOR FEDERAL TAX PURPOSES.  THE
POLICY THAT ALLOWS AS A DEDUCTION THE TAX PAID TO CONDUCT THE BUSINESS
SEEMS SUFFICIENTLY HOSPITABLE TO ALLOW THE NORMAL DEDUCTIONS OF THE
RENT AND WAGES NECESSARY TO OPERATE IT.  WE SAID IN COMMISSIONER V.
HEININGER, 320 U.S. 467, 474, THAT THE "FACT THAT AN EXPENDITURE BEARS
A REMOTE RELATION TO AN ILLEGAL ACT" DOES NOT MAKE IT NONDEDUCTIBLE. 
AND SEE LILLY V. COMMISSIONER, 343 U.S. 90.  IF WE ENFORCE AS FEDERAL
POLICY THE RULE ESPOUSED BY THE COMMISSIONER IN THIS CASE, WE WOULD
COME CLOSE TO MAKING THIS TYPE OF BUSINESS TAXABLE ON THE BASIS OF ITS
GROSS RECEIPTS, WHILE ALL OTHER BUSINESS WOULD BE TAXABLE ON THE BASIS
OF NET INCOME.  IF THAT CHOICE IS TO BE MADE, CONGRESS SHOULD DO IT.
THE AMOUNTS PAID AS WAGES TO EMPLOYEES AND TO THE LANDLORD AS RENT ARE
"ORDINARY AND NECESSARY EXPENSES" IN THE ACCEPTED MEANING OF THE
WORDS.  THAT IS ENOUGH TO PERMIT THE DEDUCTION, UNLESS IT IS CLEAR THAT
THE ALLOWANCE IS A DEVICE TO AVOID THE CONSEQUENCE OF VIOLATIONS OF A
LAW, AS IN HOOVER MOTOR EXPRESS CO. V. UNITED STATES, SUPRA, AND TANK
TRUCK RENTALS, INC., V. COMMISSIONER, SUPRA, OR OTHERWISE CONTRAVENES
THE FEDERAL POLICY EXPRESSED IN A STATUTE OR REGULATION, AS IN TEXTILE
MILLS CORP. V. COMMISSIONER, SUPRA.  AFFIRMED. 

FN1  SECTION 23(A)(1)(A) PROVIDES: 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     *         *         * *         * 

"ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE
TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS, INCLUDING A
REASONABLE ALLOWANCE FOR SALARIES OR OTHER COMPENSATION FOR PERSONAL
SERVICES ACTUALLY RENDERED; ...  AND RENTALS OR OTHER PAYMENTS REQUIRED
TO BE MADE AS A CONDITION TO THE CONTINUED USE OR POSSESSION, FOR
PURPOSES OF THE TRADE OR BUSINESS, OF PROPERTY TO WHICH THE TAXPAYER
HAS NOT TAKEN OR IS NOT TAKING TITLE OR IN WHICH HE HAS NO EQUITY."  53
STAT. 12, AS AMENDED, 56 STAT. 819, 26 U.S.C.  SEC. 23(A)(1)(A). 

FN2  ILL. REV. STAT., 1945, C. 38, SEC. 336. 

FN3  TREAS. REG. 118, SEC. 39.23(A)-1, REV. RUL. 54-219, 1954-1 CUM.
BULL.  51: 

"THE FEDERAL EXCISE TAX ON WAGERS UNDER SECTION 3285(D) OF THE
INTERNAL REVENUE CODE AND THE SPECIAL TAX UNDER SECTION 3290 OF THE
CODE PAID BY PERSONS ENGAGED IN RECEIVING WAGERS ARE DEDUCTIBLE, FOR
FEDERAL INCOME TAX PURPOSES, AS ORDINARY AND NECESSARY BUSINESS
EXPENSES UNDER SECTION 23(A) OF THE INTERNAL REVENUE CODE, PROVIDED THE
TAXPAYER IS ENGAGED IN THE BUSINESS OF ACCEPTING WAGERS OR CONDUCTING
WAGERING POOLS OR LOTTERIES, OR IS ENGAGED IN RECEIVING WAGERS FOR OR
ON BEHALF OF ANY PERSON LIABLE FOR THE TAX UNDER SECTION 3285(D) OF THE
CODE." 
..END :





















TANK TRUCK RENTALS V. COMMISSIONER OF INTERNAL REVENUE 356 U.S. 30 


NO. 109.  ARGUED JANUARY 29-30, 1958.  - DECIDED MARCH 17, 1958.  - 242
F.2D 14, AFFIRMED. 


FINES IMPOSED ON, AND PAID BY, THE OWNERS OF TANK TRUCKS (AND THEIR
DRIVERS, WHO ARE REIMBURSED BY THE OWNERS) FOR VIOLATIONS OF STATE
MAXIMUM WEIGHT LAWS ARE NOT DEDUCTIBLE BY THE TRUCK OWNERS AS "ORDINARY
AND NECESSARY" BUSINESS EXPENSES UNDER SEC. 23(A)(1)(A) OF THE INTERNAL
REVENUE CODE OF 1939, EITHER (A) WHEN COMMERCIAL PRACTICALITIES CAUSE
THE TRUCK OWNERS TO VIOLATE SUCH STATE LAWS DELIBERATELY AT THE
CALCULATED RISK OF BEING DETECTED AND FINED, OR (B) WHEN THE VIOLATIONS
ARE UNINTENTIONAL.  PP. 31-37. 

(A)  A FINDING THAT AN EXPENSE IS "NECESSARY" CANNOT BE MADE IF
ALLOWANCE OF THE DEDUCTION WOULD FRUSTRATE SHARPLY DEFINED NATIONAL OR
STATE POLICIES PROSCRIBING PARTICULAR TYPES OF CONDUCT, EVIDENCED BY
SOME GOVERNMENTAL DECLARATION THEREOF.  PP. 33-34. 

(B)  THE FINES HERE CONCERN THE POLICY OF SEVERAL STATES, "EVIDENCED"
BY PENAL STATUTES ENACTED TO PROTECT THEIR HIGHWAYS FROM DAMAGE AND TO
INSURE THE SAFETY OF ALL PERSONS USING THEM.  P. 34. 

(C)  ASSESSMENT OF THE FINES HERE INVOLVED WAS PUNITIVE ACTION AND
NOT A MERE TOLL FOR THE USE OF THE HIGHWAYS.  PP. 34, 36. 

(D)  IN ALLOWING DEDUCTIONS FOR INCOME TAX PURPOSES, CONGRESS DID NOT
INTEND TO ENCOURAGE BUSINESS ENTERPRISES TO VIOLATE THE DECLARED POLICY
OF A STATE.  P. 35. 

(E)  THE RULE AS TO FRUSTRATION OF SHARPLY DEFINED NATIONAL OR STATE
POLICIES IS NOT ABSOLUTE.  EACH CASE TURNS ON ITS OWN FACTS, AND THE
TEST OF NONDEDUCTIBILITY IS THE SEVERITY AND IMMEDIACY OF THE
FRUSTRATION RESULTING FROM ALLOWANCE OF THE DEDUCTION.  P. 35. 

(F)  TO PERMIT THE DEDUCTION OF FINES AND PENALTIES IMPOSED BY A
STATE FOR VIOLATIONS OF ITS LAWS WOULD FRUSTRATE STATE POLICY IN SEVERE
AND DIRECT FASHION BY REDUCING THE "STING" OF THE PENALTIES.  PP. 35
36. 

(G)  SINCE THE MAXIMUM WEIGHT STATUTES MAKE NO DISTINCTION BETWEEN
INNOCENT AND WILLFUL VIOLATORS, STATE POLICY IS AS MUCH THWARTED IN THE
CASE OF UNINTENTIONAL VIOLATIONS AS IT IS IN THE CASE OF WILLFUL
VIOLATIONS.  PP. 36-37. 

TANK TRUCK RENTALS, INC., V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN 1951 PETITIONER TANK TRUCK RENTALS PAID SEVERAL HUNDRED FINES
IMPOSED ON IT AND ITS DRIVERS FOR VIOLATIONS OF STATE MAXIMUM WEIGHT
LAWS.  THIS CASE INVOLVES THE DEDUCTIBILITY OF THOSE PAYMENTS AS
"ORDINARY AND NECESSARY" BUSINESS EXPENSES UNDER SEC. 23(A)(1)(A) OF
THE INTERNAL REVENUE CODE OF 1939.  (FN1)  PRIOR TO 1950 THE
COMMISSIONER HAD PERMITTED SUCH DEDUCTIONS, (FN2) BUT A CHANGE OF
POLICY THAT YEAR (FN3) CAUSED PETITIONER'S EXPENDITURES TO BE
DISALLOWED.  THE TAX COURT, REASONING THAT ALLOWANCE OF THE DEDUCTION
WOULD FRUSTRATE SHARPLY DEFINED STATE POLICY EXPRESSED IN THE MAXIMUM
WEIGHT LAWS, UPHELD THE COMMISSIONER.  26 T.C. 427.  THE COURT OF
APPEALS AFFIRMED ON THE SAME GROUND, 242 F.2D 14, AND WE GRANTED
CERTIORARI.  354 U.S. 920 (1957).  IN OUR VIEW, THE DEDUCTIONS PROPERLY
WERE DISALLOWED. 

PETITIONER, A PENNSYLVANIA CORPORATION, OWNS A FLEET OF TANK TRUCKS
WHICH IT LEASES, WITH DRIVERS, TO MOTOR CARRIERS FOR TRANSPORTATION OF
BULK LIQUIDS.  THE LESSEES OPERATE THE TRUCKS THROUGHOUT PENNSYLVANIA
AND THE SURROUNDING STATES OF NEW JERSEY, OHIO, DELAWARE, WEST
VIRGINIA, AND MARYLAND, WITH NEARLY ALL THE SHIPMENTS ORIGINATING OR
TERMINATING IN PENNSYLVANIA.  IN 1951, THE TAX YEAR IN QUESTION, EACH
OF THESE STATES IMPOSED MAXIMUM WEIGHT LIMITS FOR MOTOR VEHICLES
OPERATING ON ITS HIGHWAYS.  (FN4)  PENNSYLVANIA RESTRICTED TRUCKERS TO
45,000 POUNDS, HOWEVER, WHILE THE OTHER STATES THROUGH WHICH PETITIONER
OPERATED ALLOWED MAXIMUM WEIGHTS APPROXIMATING 60,000 POUNDS.  IT IS
UNCONTESTED THAT TRUCKING OPERATIONS WERE SO HINDERED BY THIS SITUATION
THAT NEITHER PETITIONER NOR OTHER BULK LIQUID TRUCKERS COULD OPERATE
PROFITABLY AND ALSO OBSERVE THE PENNSYLVANIA LAW.  PETITIONER'S
EQUIPMENT CONSISTED LARGELY OF 4,500- TO 5,000-GALLON TANKS, AND THE
INDUSTRY RATE STRUCTURE GENERALLY WAS PREDICATED ON FULLY LOADED USE OF
EQUIPMENT OF THAT CAPACITY.  YET ONLY ONE OF THE COMMONLY CARRIED
LIQUIDS WEIGHED LITTLE ENOUGH THAT A FULLY LOADED TRUCK COULD SATISFY
THE PENNSYLVANIA STATUTE.  OPERATION OF PARTIALLY LOADED TRUCKS,
HOWEVER, NOT ONLY WOULD HAVE CREATED SAFETY HAZARDS, BUT ALSO WOULD
HAVE BEEN ECONOMICALLY IMPOSSIBLE FOR ANY CARRIER SO LONG AS THE REST
OF THE INDUSTRY CONTINUED CAPACITY LOADING.  AND THE INDUSTRY AS A
WHOLE COULD NOT OPERATE ON A PARTIAL LOAD BASIS WITHOUT DRIVING
SHIPPERS TO COMPETING FORMS OF TRANSPORTATION.  THE ONLY OTHER
ALTERNATIVE, USE OF SMALLER TANKS, ALSO WAS COMMERCIALLY IMPRACTICABLE,
NOT ONLY BECAUSE OF INITIAL REPLACEMENT COSTS BUT EVEN MORE SO BECAUSE
OF REDUCED REVENUE AND INCREASED OPERATING EXPENSE, SINCE THE RATES
CHARGED WERE BASED ON THE NUMBER OF GALLONS TRANSPORTED PER MILE. 

CONFRONTED BY THIS DILEMMA, THE INDUSTRY DELIBERATELY OPERATED ITS
TRUCKS OVERWEIGHT IN PENNSYLVANIA IN THE HOPE, AND AT THE CALCULATED
RISK, OF ESCAPING THE NOTICE OF THE STATE AND LOCAL POLICE.  THIS
CONDUCT ALSO CONSTITUTED WILLFUL VIOLATIONS IN NEW JERSEY, FOR
RECIPROCITY PROVISIONS OF THE JEW JERSEY STATUTE SUBJECTED TRUCKS
REGISTERED IN PENNSYLVANIA TO PENNSYLVANIA WEIGHT RESTRICTIONS WHILE
TRAVELING IN NEW JERSEY.  (FN5)  IN THE REMAINDER OF THE STATES IN
WHICH PETITIONER OPERATED, IT SUFFERED OVERWEIGHT FINES FOR SEVERAL
UNINTENTIONAL VIOLATIONS, SUCH AS THOSE CAUSED BY TEMPERATURE CHANGES
IN TRANSIT.  DURING THE TAX YEAR 1951, PETITIONER PAID A TOTAL OF
$41,060.84 IN FINES AND COSTS FOR 718 WILLFUL AND 28 INNOCENT
VIOLATIONS.  DEDUCTION OF THAT AMOUNT IN PETITIONER'S 1951 TAX RETURN
WAS DISALLOWED BY THE COMMISSIONER. 

IT IS CLEAR THAT THE CONGRESS INTENDED THE INCOME TAX LAWS "TO TAX
EARNINGS AND PROFITS LESS EXPENSES AND LOSSES," HIGGINS V. SMITH, 308
U.S. 473, 477 (1940), CARRYING OUT A BROAD BASIC POLICY OF TAXING "NET,
NOT  ...  GROSS, INCOME  ...  ."  MCDONALD V. COMMISSIONER, 323 U.S.
57, 66-67 (1944).  EQUALLY WELL ESTABLISHED IS THE RULE THAT
DEDUCTIBILITY UNDER SEC. 23(A)(1)(A) IS LIMITED TO EXPENSES THAT ARE
BOTH ORDINARY AND NECESSARY TO CARRYING ON THE TAXPAYER'S BUSINESS. 
DEPUTY V. DU PONT, 308 U.S. 488, 497 (1940).  A FINDING OF "NECESSITY"
CANNOT BE MADE, HOWEVER, IF ALLOWANCE OF THE DEDUCTION WOULD FRUSTRATE
SHARPLY DEFINED NATIONAL OR STATE POLICIES PROSCRIBING PARTICULAR TYPES
OF CONDUCT, EVIDENCED BY SOME GOVERNMENTAL DECLARATION THEREOF. 
COMMISSIONER V. HEININGER, 320 U.S. 467, 473 (1943); SEE LILLY V.
COMMISSIONER, 343 U.S. 90, 97 (1952).  THIS RULE WAS FORESHADOWED IN
TEXTILE MILLS SECURITIES CORP. V. COMMISSIONER, 314 U.S. 326 (1941),
WHERE THE COURT, FINDING NO CONGRESSIONAL INTENT TO THE CONTRARY,
UPHELD THE VALIDITY OF AN INCOME TAX REGULATION REFLECTING AN
ADMINISTRATIVE DISTINCTION "BETWEEN LEGITIMATE BUSINESS EXPENSES AND
THOSE ARISING FROM THAT FAMILY OF CONTRACTS TO WHICH THE LAW HAS GIVEN
NO SANCTION."  314 U.S., AT 339.  SIGNIFICANT REFERENCE WAS MADE IN
HEININGER TO THE VERY SITUATION NOW BEFORE US; THE COURT STATED, "WHERE
A TAXPAYER HAS VIOLATED A FEDERAL OR A STATE STATUTE AND INCURRED A
FINE OR PENALTY HE HAS NOT BEEN PERMITTED A TAX DEDUCTION FOR ITS
PAYMENT."  320 U.S., AT 473. 

HERE WE ARE CONCERNED WITH THE POLICY OF SEVERAL STATES "EVIDENCED"
BY PENAL STATUTES ENACTED TO PROTECT THEIR HIGHWAYS FROM DAMAGE AND TO
INSURE THE SAFETY OF ALL PERSONS USING THEM.  (FN6) PETITIONER AND ITS
DRIVERS HAVE VIOLATED THESE LAWS AND HAVE BEEN SENTENCED TO PAY THE
FINES HERE CLAIMED AS INCOME TAX DEDUCTIONS.  (FN7)  IT IS CLEAR THAT
ASSESSMENT OF THE FINES WAS PUNITIVE ACTION AND NOT A MERE TOLL FOR USE
OF THE HIGHWAYS: THE FINES OCCURRED ONLY IN THE EXCEPTIONAL INSTANCE
WHEN THE OVERWEIGHT RUN WAS DETECTED BY THE POLICE.  PETITIONER'S
FAILURE TO COMPLY WITH THE STATE LAWS OBVIOUSLY WAS BASED ON A
BALANCING OF THE COST OF COMPLIANCE AGAINST THE CHANCE OF DETECTION. 
SUCH A COURSE CANNOT BE SANCTIONED, FOR JUDICIAL DEFERENCE TO STATE
ACTION REQUIRES, WHENEVER POSSIBLE, THAT A STATE NOT BE THWARTED IN ITS
POLICY.  WE WILL NOT PRESUME THAT THE CONGRESS, IN ALLOWING DEDUCTIONS
FOR INCOME TAX PURPOSES, INTENDED TO ENCOURAGE A BUSINESS ENTERPRISE TO
VIOLATE THE DECLARED POLICY OF A STATE.  TO ALLOW THE DEDUCTION SOUGHT
HERE WOULD BUT ENCOURAGE CONTINUED VIOLATIONS OF STATE LAW BY
INCREASING THE ODDS IN FAVOR OF NONCOMPLIANCE.  THIS COULD ONLY TEND TO
DESTROY THE EFFECTIVENESS OF THE STATE'S MAXIMUM WEIGHT LAWS. 

THIS IS NOT TO SAY THAT THE RULE AS TO FRUSTRATION OF SHARPLY DEFINED
NATIONAL OR STATE POLICIES IS TO BE VIEWED OR APPLIED IN ANY ABSOLUTE
SENSE.  "IT HAS NEVER BEEN THOUGHT  ...  THAT THE MERE FACT THAT AN
EXPENDITURE BEARS A REMOTE RELATION TO AN ILLEGAL ACT MAKES IT
NONDEDUCTIBLE."  COMMISSIONER V. HEININGER, SUPRA, AT 474.  ALTHOUGH
EACH CASE MUST TURN ON ITS OWN FACTS, JERRY ROSSMAN CORP. V.
COMMISSIONER, 175 F.2D 711, 713, THE TEST OF NONDEDUCTIBILITY ALWAYS IS
THE SEVERITY AND IMMEDIACY OF THE FRUSTRATION RESULTING FROM ALLOWANCE
OF THE DEDUCTION.  THE FLEXIBILITY OF SUCH A STANDARD IS NECESSARY IF
WE ARE TO ACCOMMODATE BOTH THE CONGRESSIONAL INTENT TO TAX ONLY NET
INCOME, AND THE PRESUMPTION AGAINST CONGRESSIONAL INTENT TO ENCOURAGE
VIOLATION OF DECLARED PUBLIC POLICY. 

CERTAINLY THE FRUSTRATION OF STATE POLICY IS MOST COMPLETE AND DIRECT
WHEN THE EXPENDITURE FOR WHICH DEDUCTION IS SOUGHT IS ITSELF PROHIBITED
BY STATUTE.  SEE BOYLE, FLAGG & SEAMAN, INC., V. COMMISSIONER, 25 T.C.
43.  IF THE EXPENDITURE IS NOT ITSELF AN ILLEGAL ACT, BUT RATHER THE
PAYMENT OF A PENALTY IMPOSED BY THE STATE BECAUSE OF SUCH AN ACT, AS IN
THE PRESENT CASE, THE FRUSTRATION ATTENDANT UPON DEDUCTION WOULD BE
ONLY SLIGHTLY LESS REMOTE, AND WOULD CLEARLY FALL WITHIN THE LINE OF
DISALLOWANCE.  DEDUCTION OF FINES AND PENALTIES UNIFORMLY HAS BEEN HELD
TO FRUSTRATE STATE POLICY IN SEVERE AND DIRECT FASHION BY REDUCING THE
"STING" OF THE PENALTY PRESCRIBED BY THE STATE LEGISLATURE.  (FN8) 

THERE IS NO MERIT TO PETITIONER'S ARGUMENT THAT THE FINES IMPOSED
HERE WERE NOT PENALTIES AT ALL, BUT MERELY A REVENUE TOLL.  IT IS TRUE
THAT THE PENNSYLVANIA STATUTE PROVIDES FOR PURCHASE OF A SINGLE-TRIP
PERMIT BY AN OVERWEIGHTED TRUCKER; THAT ITS PROVISION FOR FORCING
REMOVAL OF THE EXCESS WEIGHT AT THE DISCRETION OF THE POLICE
AUTHORITIES APPARENTLY WAS NEVER ENFORCED; AND THAT THE FINES WERE
DEVOTED BY STATUTE TO ROAD REPAIR WITHIN THE MUNICIPALITY OR TOWNSHIP
WHERE THE TRUCKER WAS APPREHENDED.  MOREOVER, THE PENNSYLVANIA STATUTE
WAS AMENDED IN 1955, (FN9) RAISING THE MAXIMUM WEIGHT RESTRICTION TO
60,000 POUNDS, MAKING MANDATORY THE REMOVAL OF THE EXCESS, AND
GRADUATING THE AMOUNT OF THE FINE BY THE NUMBER OF POUNDS THAT THE
TRUCK WAS OVERWEIGHT.  THESE CONSIDERATIONS, HOWEVER, DO NOT CHANGE THE
FACT THAT THE TRUCKERS WERE FINED BY THE STATE AS A PENAL MEASURE WHEN
AND IF THEY WERE APPREHENDED BY THE POLICE. 

FINALLY, PETITIONER CONTENDS THAT DEDUCTION OF THE FINES AT LEAST FOR
THE INNOCENT VIOLATIONS WILL NOT FRUSTRATE STATE POLICY.  BUT SINCE THE
MAXIMUM WEIGHT STATUTES MAKE NO DISTINCTION BETWEEN INNOCENT AND
WILLFUL VIOLATORS, STATE POLICY IS AS MUCH THWARTED IN THE ONE INSTANCE
AS IN THE OTHER.  PETITIONER'S RELIANCE ON JERRY ROSSMAN CORP. V.
COMMISSIONER, SUPRA, IS MISPLACED.  DEDUCTIONS WERE ALLOWED THE
TAXPAYER IN THAT CASE FOR AMOUNTS INADVERTENTLY COLLECTED BY HIM AS OPA
OVERCHARGES AND THEN PAID OVER TO THE GOVERNMENT, BUT THE ALLOWANCE WAS
BASED ON THE FACT THAT THE ADMINISTRATOR, IN APPLYING THE ACT, HAD
DIFFERENTIATED BETWEEN WILLFUL AND INNOCENT VIOLATORS.  NO SUCH
DIFFERENTIATION EXISTS HERE, EITHER IN THE APPLICATION OR IN THE
LITERAL LANGUAGE OF THE STATE MAXIMUM WEIGHT LAWS.  AFFIRMED. 

FN1  "SEC.  23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES. 

"(1)  TRADE OR BUSINESS EXPENSES. 

"(A)  IN GENERAL.  - ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS
...  ."  53 STAT. 12, AS AMENDED, 56 STAT. 819. 

FN2  LETTER RULING BY COMMISSIONER HELVERING, DATED SEPTEMBER 10,
1942 (IT:P:2 - WTL), 5 CCH 1950 FED. TAX REP. PAR. 6134. 

FN3  1951 - 1 CUM. BULL.  15. 

FN4  DELAWARE, DEL. LAWS 1947, C. 86, SEC. 2; MARYLAND, FLACK'S MD.
ANN. CODE, 1939 (1947 CUM. SUPP.), ART 66 1/2, SEC. 254, AND FLACK'S
MD. ANN. CODE, 1951, ART. 66 1/2, SEC. 278; NEW JERSEY, N.J. REV.
STAT., 1937, 39:3-84; OHIO, PAGE'S OHIO GEN. CODE ANN., 1938 (CUM.
POCKET SUPP. 1952), SEC. 7248-1; PENNSYLVANIA, PURDON'S PA. STAT. ANN.,
1953, TIT. 75, SEC. 453; WEST VIRGINIA, W.VA. CODE ANN., 1949, SEC.
1546, AND 1953 CUM. SUPP., SEC.  1721(463). 

FN5  N.J. REV. STAT., 1937 (CUM. SUPP. 1948-1950), 39:3-84.3. 

FN6  BECAUSE STATE POLICY IN THIS CASE WAS EVIDENCED BY SPECIFIC
LEGISLATION, IT IS UNNECESSARY TO DECIDE WHETHER THE REQUISITE
"GOVERNMENTAL DECLARATION" MIGHT EXIST OTHER THAN IN AN ACT OF THE
LEGISLATURE.  SEE SCHWARTZ, BUSINESS EXPENSES CONTRARY TO PUBLIC
POLICY, 8 TAX L. REV. 241, 248. 

FN7  UNLIKE THE REST OF THE STATES, PENNSYLVANIA IMPOSED THE FINES ON
THE DRIVER RATHER THAN ON THE OWNER OF THE TRUCKS.  IN EACH INSTANCE,
HOWEVER, THE DRIVER WAS PETITIONER'S EMPLOYEE, AND PETITIONER PAID THE
FINES AS A MATTER OF COURSE, BEING BOUND TO DO SO BY ITS COLLECTIVE
BARGAINING AGREEMENT WITH THE UNION REPRESENTING THE DRIVERS. 

FN8  SEE.  E.G., UNITED STATES V. JAFFRAY, 97 F.2D 488, AFF'D ON
OTHER GROUNDS, SUB NOM.  UNITED STATES V. BERTELSEN & PETERSEN
ENGINEERING CO., 306 U.S. 276 (1939); TUNNEL R. CO. V. COMMISSIONER, 61
F.2D 166; CHICAGO, R.I.&P.R. CO. V. COMMISSIONER, 47 F.2D 990;
BURROUGHS BLDG. MATERIAL CO. V. COMMISSIONER, 47 F.2D 178; GREAT
NORTHERN R. CO. V. COMMISSIONER, 40 F.2D 372; DAVENSHIRE, INC., V.
COMMISSIONER, 12 T.C. 958. 

FN9  PURDON'S PA. STAT. ANN., 1953 (1957 CUM. ANN. POCKET PART), TIT.
75, SEC. 453. 
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HOOVER MOTOR EXPRESS V. UNITED STATES 356 U.S. 38 


NO. 95.  ARGUED JANUARY 29-30, 1958.  - DECIDED MARCH 17, 1958.  - 241
F.2D 459, AFFIRMED. 


FINES PAID BY A TRUCK OWNER FOR INADVERTENT VIOLATIONS OF STATE
MAXIMUM WEIGHT LAWS ARE NOT DEDUCTIBLE AS "ORDINARY AND NECESSARY"
BUSINESS EXPENSES UNDER SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE
OF 1939.  PP. 38-40. 

(A)  IN THIS CASE, IT DOES NOT APPEAR THAT THE TRUCK OWNER TOOK ALL
REASONABLE PRECAUTIONS TO AVOID THE FINES.  PP. 39-40. 

(B)  EVEN ASSUMING ALL DUE CARE AND NO WILLFUL INTENT, ALLOWANCE OF
THE DEDUCTION WOULD SEVERELY AND DIRECTLY FRUSTRATE STATE POLICY.  P.
40. 

HOOVER MOTOR EXPRESS CO., INC., V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE SOLE ISSUE HERE - THE DEDUCTIBILITY FOR TAX PURPOSES (FN1) OF
FINES PAID BY A TRUCKER FOR INADVERTENT VIOLATIONS OF STATE MAXIMUM
WEIGHT LAWS - IS IDENTICAL TO ONE OF THE ISSUES DECIDED TODAY IN NO.
109, TANK TRUCK RENTALS, INC., V. COMMISSIONER, ANTE, P. 30. 

MOST OF THE OVERWEIGHT FINES PAID BY PETITIONER DURING 1951-1953
INCLUSIVE, THE TAX YEARS IN QUESTION, WERE INCURRED IN TENNESSEE AND
KENTUCKY, TWO OF THE NINE STATES IN WHICH PETITIONER OPERATED.  DURING
THE RELEVANT PERIOD, BOTH TENNESSEE AND KENTUCKY IMPOSED MAXIMUM WEIGHT
LIMITATIONS OF 42,000 POUNDS OVER-ALL AND 18,000 POUNDS PER AXLE, (FN2)
CONSIDERABLY LESS THAN THOSE IN THE OTHER SEVEN STATES.  PETITIONER'S
FINES RESULTED LARGELY FROM VIOLATIONS OF THE AXLE-WEIGHT LIMITS RATHER
THAN VIOLATIONS OF THE OVER-ALL TRUCK WEIGHT LIMITS.  THE DISTRICT
COURT FOUND THAT SUCH VIOLATIONS USUALLY OCCURRED BECAUSE OF A SHIFTING
OF THE FREIGHT LOAD DURING TRANSIT. 

AFTER PAYING THE TAXES IMPOSED, PETITIONER SUED IN THE DISTRICT COURT
FOR A REFUND, CLAIMING THAT NO FRUSTRATION OF STATE POLICY WOULD RESULT
FROM ALLOWANCE OF THE DEDUCTIONS BECAUSE (1) THE VIOLATIONS HAD NOT
BEEN WILLFUL, AND (2) ALL REASONABLE PRECAUTIONS HAD BEEN TAKEN TO
AVOID THE VIOLATIONS.  THE DISTRICT COURT HELD THAT EVEN IF PETITIONER
HAD ACTED INNOCENTLY AND HAD TAKEN ALL REASONABLE PRECAUTIONS,
ALLOWANCE OF THE DEDUCTIONS WOULD FRUSTRATE CLEARLY DEFINED STATE
POLICY.  JUDGMENT WAS ENTERED FOR THE COMMISSIONER, 135 F. SUPP. 818,
AND THE COURT OF APPEALS AFFIRMED ON THE SAME REASONING.  241 F.2D
459.  WE GRANTED CERTIORARI, 354 U.S. 920 (1957), IN CONJUNCTION WITH
THE GRANT IN TANK TRUCK RENTALS, INC., V. COMMISSIONER, SUPRA, AND
COMMISSIONER V. SULLIVAN, ANTE, P. 27, BOTH DECIDED TODAY. 

WHOLLY APART FROM POSSIBLE FRUSTRATION OF STATE POLICY, IT DOES NOT
APPEAR THAT PAYMENT OF THE FINES IN QUESTION WAS "NECESSARY" TO THE
OPERATION OF PETITIONER'S BUSINESS.  THIS, OF COURSE, PREVENTS ANY
DEDUCTION.  DEPUTY V. DU PONT, 308 U.S. 488 (1940).  THE VIOLATIONS
USUALLY RESULTED FROM A SHIFTING OF THE LOAD DURING TRANSIT, BUT THERE
IS NOTHING IN THE RECORD TO INDICATE THAT THE SHIFTING COULD NOT HAVE
BEEN CONTROLLED MERELY BY TYING DOWN THE LOAD OR COMPARTMENTALIZING THE
TRUCKS.  OTHER VIOLATIONS OCCURRED BECAUSE PETITIONER RELIED ON THE
WEIGHT STATED IN THE BILL OF LADING WHEN PICKING UP GOODS IN SMALL
COMMUNITIES HAVING NO WEIGHING FACILITIES.  IT WOULD SEEM THAT THIS
SITUATION COULD HAVE BEEN ALLEVIATED BY CARRYING A SCALE IN THE TRUCK. 

EVEN ASSUMING THAT PETITIONER ACTED WITH ALL DUE CARE AND WITHOUT
WILLFUL INTENT, IT IS CLEAR THAT ALLOWANCE OF THE DEDUCTION SOUGHT BY
PETITIONER WOULD SEVERELY AND DIRECTLY FRUSTRATE STATE POLICY.  TANK
TRUCK RENTALS, INC., V. COMMISSIONER, SUPRA.  AS IN TANK TRUCK, THE
STATUTES INVOLVED HERE DO NOT DIFFERENTIATE BETWEEN INNOCENT AND
WILLFUL VIOLATORS.  AFFIRMED. 

FN1  "SEC.  23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES. 

"(1)  TRADE OR BUSINESS EXPENSES. 

"(A)  IN GENERAL.  - ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS
...  ."  53 STAT. 12, AS AMENDED, 56 STAT. 819. 

FN2  KY. REV. STAT., 1953, SEC. 189.222; WILLIAMS' TENN. CODE, 1934
(1952 CUM. SUPP. TO 1943 REPL.  VOL.), SEC. 1166.33. 
..END :









FERGUSON V. ST. LOUIS-SAN FRANCISCO RAILWAY CO. 356 U.S. 41 


NO. 799.  DECIDED MARCH 17, 1958 - REPORTED BELOW:  307 S.W.2D 385. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, HELD:
THE PROOFS WERE SUFFICIENT TO SUBMIT TO THE JURY THE QUESTION WHETHER
EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING PETITIONER'S INJURY. 
THEREFORE, CERTIORARI IS GRANTED, THE JUDGMENT BELOW IS REVERSED, AND
THE CASE IS REMANDED FOR FURTHER PROCEEDINGS. 

FERGUSON V. ST. LOUIS-SAN FRANCISCO RAILWAY CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  WE HOLD THAT THE
PROOFS WERE SUFFICIENT TO SUBMIT TO THE JURY THE QUESTION WHETHER
EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING THE PETITIONER'S
INJURY.  WILKERSON V. MCCARTHY, 336 U.S. 53; ROGERS V. MISSOURI PACIFIC
R. CO., 352 U.S. 500; WEBB V. ILLINOIS CENTRAL R. CO., 352 U.S. 512;
SHAW V. ATLANTIC COAST LINE R. CO., 353 U.S. 920; FUTRELLE V. ATLANTIC
COAST LINE R. CO., 353 U.S. 920; DEEN V. GULF, C.&S.F.R. CO., 353 U.S.
925; THOMSON V. TEXAS & PACIFIC R. CO., 353 U.S. 926; ARNOLD V.
PANHANDLE & S.F.R. CO., 353 U.S. 360; RINGHISER V. CHESAPEAKE & O.R.
CO., 354 U.S. 901; MCBRIDE V. TOLEDO TERMINAL R. CO., 354 U.S. 517;
GIBSON V. THOMPSON, 355 U.S. 18; HONEYCUTT V. WABASH R. CO., 355 U.S.
424.  THE JUDGMENT OF THE SUPREME COURT OF MISSOURI IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT FOR THE REASONS GIVEN IN HIS
MEMORANDUM IN GIBSON V. THOMPSON, 355 U.S. 18. 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI IS IMPROVIDENTLY GRANTED. 

MR. JUSTICE WHITTAKER DISSENTS. 
..END :












HURLEY V. RAGEN 356 U.S. 42 


NO. 225, MISC.  DECIDED MARCH 17, 1958. 


CERTIORARI DENIED WITHOUT CONSIDERATION OF QUESTIONS RAISED AND
WITHOUT PREJUDICE TO INSTITUTION OF PROCEEDINGS IN AN ILLINOIS STATE
COURT UNDER THE ILLINOIS POST-CONVICTION HEARING ACT OF AUGUST 4,
1949. 

HURLEY V. RAGEN, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF WILL
COUNTY, ILLINOIS. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS DENIED WITHOUT CONSIDERATION
OF THE QUESTIONS RAISED THEREIN AND WITHOUT PREJUDICE TO THE
INSTITUTION BY PETITIONER OF PROCEEDINGS IN ANY ILLINOIS STATE COURT OF
COMPETENT JURISDICTION UNDER THE ILLINOIS POST-CONVICTION HEARING ACT
OF AUGUST 4, 1949.  ILL. REV. STAT., 1957, C. 38, SEC. 826. 
..END :








COLUMBIA BROADCASTING SYSTEM, INC. V. LOEW'S INC. 356 U.S. 43 


NO. 90.  ARGUED JANUARY 29, 1958 - DECIDED MARCH 17, 1958 - 239 F.2D
532, AFFIRMED BY AN EQUALLY DIVIDED COURT. 


COLUMBIA BROADCASTING SYSTEM, INC., ET AL. V. LOEW'S INC. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














FORMAN V. APFEL 356 U.S. 43 


NO. 726.  DECIDED MARCH 17, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  390 PA. 161, 134 A.2D
662. 


FORMAN ET UX. V. APFEL, LIQUIDATING RECEIVER, ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















NORTHERN PACIFIC RAILWAY CO. V. UNITED STATES 356 U.S. 1 


NO. 59.  ARGUED JANUARY 7-8, 1958 - DECIDED MARCH 10, 1958 - 142 F.
SUPP. 679, AFFIRMED. 


UNDER SEC. 4 OF THE SHERMAN ACT, THE GOVERNMENT SUED IN A FEDERAL
DISTRICT COURT FOR A DECLARATION THAT APPELLANT RAILROAD'S
"PREFERENTIAL ROUTING" AGREEMENTS ARE UNLAWFUL AS UNREASONABLE
RESTRAINTS OF TRADE UNDER SEC. 1 OF THE ACT.  SUCH AGREEMENTS WERE
INCORPORATED IN DEEDS AND LEASES TO SEVERAL MILLION ACRES OF LAND IN
SEVERAL NORTHWESTERN STATES, ORIGINALLY GRANTED TO THE RAILROAD TO
FACILITATE ITS CONSTRUCTION.  THEY COMPEL THE GRANTEES AND LESSEES TO
SHIP OVER THE RAILROAD'S LINES ALL COMMODITIES PRODUCED OR MANUFACTURED
ON THE LAND, PROVIDED ITS RATES (AND IN SOME INSTANCES ITS SERVICE) ARE
EQUAL TO THOSE OF COMPETING CARRIERS.  MANY OF THE GOODS PRODUCED ON
SUCH LANDS ARE SHIPPED FROM ONE STATE TO ANOTHER.  AFTER VARIOUS
PRETRIAL PROCEEDINGS, THE GOVERNMENT MOVED FOR SUMMARY JUDGMENT.  THE
DISTRICT JUDGE MADE NUMEROUS FINDINGS BASED ON PLEADINGS, STIPULATIONS,
DEPOSITIONS AND ANSWERS TO INTERROGATORIES; GRANTED THE GOVERNMENT'S
MOTION; AND ENJOINED THE RAILROAD FROM ENFORCING SUCH "PREFERENTIAL
ROUTING" CLAUSES.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 2-12. 

(A)  A TYING ARRANGEMENT, WHEREBY A PARTY AGREES TO SELL ONE PRODUCT
ONLY ON CONDITION THAT THE BUYER ALSO PURCHASES A DIFFERENT (OR TIED)
PRODUCT, OR AT LEAST AGREES THAT HE WILL NOT PURCHASE THAT PRODUCT FROM
ANY OTHER SUPPLIER, IS PER SE UNREASONABLE AND UNLAWFUL UNDER THE
SHERMAN ACT WHENEVER THE SELLER HAS SUFFICIENT ECONOMIC POWER WITH
RESPECT TO THE TYING PRODUCT TO RESTRAIN APPRECIABLY FREE COMPETITION
IN THE MARKET FOR THE TIED PRODUCT, AND A "NOT INSUBSTANTIAL" AMOUNT OF
INTERSTATE COMMERCE IS AFFECTED.  PP. 5-7. 

(B)  ON THE RECORD IN THIS CASE, THE UNDISPUTED FACTS ESTABLISHED
BEYOND ANY GENUINE QUESTION THAT APPELLANT POSSESSED SUBSTANTIAL
ECONOMIC POWER BY VIRTUE OF ITS EXTENSIVE LANDHOLDINGS WHICH IT USED AS
LEVERAGE TO INDUCE LARGE NUMBERS OF PURCHASERS AND LESSEES TO GIVE IT
PREFERENCE, TO THE EXCLUSION OF ITS COMPETITORS, IN CARRYING GOODS OR
PRODUCE FROM THE LAND TRANSFERRED TO THEM, AND THAT A "NOT
INSUBSTANTIAL" AMOUNT OF INTERSTATE COMMERCE WAS AND IS AFFECTED.  PP.
7-8. 

(C)  THE ESSENTIAL PREREQUISITES FOR TREATING APPELLANT'S TYING
ARRANGEMENTS AS UNREASONABLE PER SE WERE CONCLUSIVELY ESTABLISHED IN
THE DISTRICT COURT, AND APPELLANT HAS OFFERED TO PROVE NOTHING THERE OR
HERE WHICH WOULD ALTER THIS CONCLUSION.  P. 8. 

(D)  THE CONCLUSION HERE REACHED IS SUPPORTED BY INTERNATIONAL SALT
CO. V. UNITED STATES, 332 U.S. 392, WHICH WAS NOT LIMITED BY TIMES
PICAYUNE PUBLISHING CO. V. UNITED STATES, 345 U.S. 594.  PP. 8-11. 

(E)  THAT APPELLANT'S "PREFERENTIAL ROUTING" CLAUSES ARE SUBJECT TO
CERTAIN EXCEPTIONS AND MAY HAVE BEEN ADMINISTERED LENIENTLY DOES NOT
AVOID THEIR STIFLING EFFECT ON COMPETITION.  PP. 11-12. 

NORTHERN PACIFIC RAILWAY CO. ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF WASHINGTON. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1864 AND 1870 CONGRESS GRANTED THE PREDECESSOR OF THE NORTHERN
PACIFIC RAILWAY COMPANY APPROXIMATELY FORTY MILLION ACRES OF LAND IN
SEVERAL NORTHWESTERN STATES AND TERRITORIES TO FACILITATE ITS
CONSTRUCTION OF A RAILROAD LINE FROM LAKE SUPERIOR TO PUGET SOUND. 
(FN1)  IN GENERAL TERMS, THIS GRANT CONSISTED OF EVERY ALTERNATE
THROUGH STATES AND 40 MILES WIDE THROUGH TERRITORIES.  THE GRANTED
LANDS WERE OF VARIOUS KINDS; SOME CONTAINED GREAT STANDS OF TIMBER,
SOME IRON ORE OR OTHER VALUABLE MINERAL DEPOSITS, SOME OIL OR NATURAL
GAS, WHILE STILL OTHER SECTIONS WERE USEFUL FOR AGRICULTURE, GRAZING OR
INDUSTRIAL PURPOSES.  BY 1949 THE RAILROAD HAD SOLD ABOUT 37,000,000
ACRES OF ITS HOLDINGS, BUT HAD RESERVED MINERAL RIGHTS IN 6,500,000 OF
THOSE ACRES.  MOST OF THE UNSOLD LAND WAS LEASED FOR ONE PURPOSE OR
ANOTHER.  IN A LARGE NUMBER OF ITS SALES CONTRACTS AND MOST OF ITS
LEASE AGREEMENTS THE RAILROAD HAD INSERTED "PREFERENTIAL ROUTING"
CLAUSES WHICH COMPELLED THE GRANTEE OR LESSEE TO SHIP OVER ITS LINES
ALL COMMODITIES PRODUCED OR MANUFACTURED ON THE LAND, PROVIDED THAT ITS
RATES (AND IN SOME INSTANCES ITS SERVICE) WERE EQUAL TO THOSE OF
COMPETING CARRIERS.  (FN2)  SINCE MANY OF THE GOODS PRODUCED ON THE
LANDS SUBJECT TO THESE "PREFERENTIAL ROUTING" PROVISIONS ARE SHIPPED
FROM ONE STATE TO ANOTHER THE ACTUAL AND POTENTIAL AMOUNT OF INTERSTATE
COMMERCE AFFECTED IS SUBSTANTIAL.  ALTERNATIVE MEANS OF TRANSPORTATION
EXIST FOR A LARGE PORTION OF THESE SHIPMENTS INCLUDING THE FACILITIES
OF TWO OTHER MAJOR RAILROAD SYSTEMS. 

IN 1949 THE GOVERNMENT FILED SUIT UNDER SEC. 4 OF THE SHERMAN ACT
SEEKING A DECLARATION THAT THE DEFENDANT'S "PREFERENTIAL ROUTING"
AGREEMENTS WERE UNLAWFUL AS UNREASONABLE RESTRAINTS OF TRADE UNDER SEC.
1 OF THAT ACT.  (FN3)  AFTER VARIOUS PRETRIAL PROCEEDINGS THE
GOVERNMENT MOVED FOR SUMMARY JUDGMENT CONTENDING THAT ON THE UNDISPUTED
FACTS IT WAS ENTITLED, AS A MATTER OF LAW, TO THE RELIEF DEMANDED.  THE
DISTRICT JUDGE MADE NUMEROUS FINDINGS, AS SET FORTH IN SUBSTANCE IN THE
PRECEDING PARAGRAPH, BASED ON THE VOLUMINOUS PLEADINGS, STIPULATIONS,
DEPOSITIONS AND ANSWERS TO INTERROGATORIES FILED IN THE CASE, AND THEN
GRANTED THE GOVERNMENT'S MOTION (WITH AN EXCEPTION NOT RELEVANT HERE). 
142 F. SUPP.  679.  HE ISSUED AN ORDER ENJOINING THE DEFENDANT FROM
ENFORCING THE EXISTING "PREFERENTIAL ROUTING" CLAUSES OR FROM ENTERING
INTO ANY FUTURE AGREEMENTS CONTAINING THEM.   THE DEFENDANT TOOK A
DIRECT APPEAL TO THIS COURT UNDER SEC. 2 OF THE EXPEDITING ACT OF 1903,
32 STAT.  823, AS AMENDED, 15 U.S.C. SEC. 29, AND WE NOTED PROBABLE
JURISDICTION.  352 U.S. 980. 

THE SHERMAN ACT WAS DESIGNED TO BE A COMPREHENSIVE CHARTER OF
ECONOMIC LIBERTY AIMED AT PRESERVING FREE AND UNFETTERED COMPETITION AS
THE RULE OF TRADE.  IT RESTS ON THE PREMISE THAT THE UNRESTRAINED
INTERACTION OF COMPETITIVE FORCES WILL YIELD THE BEST ALLOCATION OF OUR
ECONOMIC RESOURCES, THE LOWEST PRICES, THE HIGHEST QUALITY AND THE
GREATEST MATERIAL PROGRESS, WHILE AT THE SAME TIME PROVIDING AN
ENVIRONMENT CONDUCIVE TO THE PRESERVATION OF OUR DEMOCRATIC POLITICAL
AND SOCIAL INSTITUTIONS.  BUT EVEN WERE THAT PREMISE OPEN TO QUESTION,
THE POLICY UNEQUIVOCALLY LAID DOWN BY THE ACT IS COMPETITION.  AND TO
THIS END IT PROHIBITS "EVERY CONTRACT, COMBINATION  ...  OR CONSPIRACY,
IN RESTRAINT OF TRADE OR COMMERCE AMONG THE SEVERAL STATES."  ALTHOUGH
THIS PROHIBITION IS LITERALLY ALL-ENCOMPASSING, THE COURTS HAVE
CONSTRUED IT AS PRECLUDING ONLY THOSE CONTRACTS OR COMBINATIONS WHICH
"UNREASONABLY" RESTRAIN COMPETITION.  STANDARD OIL CO. OF NEW JERSEY V.
UNITED STATES, 221 U.S. 1; CHICAGO BOARD OF TRADE V. UNITED STATES, 246
U.S. 231. 

HOWEVER, THERE ARE CERTAIN AGREEMENTS OR PRACTICES WHICH BECAUSE OF
THEIR PERNICIOUS EFFECT ON COMPETITION AND LACK OF ANY REDEEMING VIRTUE
ARE CONCLUSIVELY PRESUMED TO BE UNREASONABLE AND THEREFORE ILLEGAL
WITHOUT ELABORATE INQUIRY AS TO THE PRECISE HARM THEY HAVE CAUSED OR
THE BUSINESS EXCUSE FOR THEIR USE.  THIS PRINCIPLE OF PER SE
UNREASONABLENESS NOT ONLY MAKES THE TYPE OF RESTRAINTS WHICH ARE
PROSCRIBED BY THE SHERMAN ACT MORE CERTAIN TO THE BENEFIT OF EVERYONE
CONCERNED, BUT IT ALSO AVOIDS THE NECESSITY FOR AN INCREDIBLY
COMPLICATED AND PROLONGED ECONOMIC INVESTIGATION INTO THE ENTIRE
HISTORY OF THE INDUSTRY INVOLVED, AS WELL AS RELATED INDUSTRIES, IN AN
EFFORT TO DETERMINE AT LARGE WHETHER A PARTICULAR RESTRAINT HAS BEEN
UNREASONABLE - AN INQUIRY SO OFTEN WHOLLY FRUITLESS WHEN UNDERTAKEN. 
AMONG THE PRACTICES WHICH THE COURTS HAVE HERETOFORE DEEMED TO BE
UNLAWFUL IN AND OF THEMSELVES ARE PRICE FIXING, UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S.  150, 210; DIVISION OF MARKETS, UNITED STATES
V. ADDYSTON PIPE & STEEL CO., 85 F. 271, AFF'D, 175 U.S. 211; GROUP
BOYCOTTS, FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N, 312 U.S.
457; AND TYING ARRANGEMENTS, INTERNATIONAL SALT CO. V. UNITED STATES,
332 U.S. 392. 

FOR OUR PURPOSES A TYING ARRANGEMENT MAY BE DEFINED AS AN AGREEMENT
BY A PARTY TO SELL ONE PRODUCT BUT ONLY ON THE CONDITION THAT THE BUYER
ALSO PURCHASES A DIFFERENT (OR TIED) PRODUCT, OR AT LEAST AGREES THAT
HE WILL NOT PURCHASE THAT PRODUCT FROM ANY OTHER SUPPLIER.  (FN4)
WHERE SUCH CONDITIONS ARE SUCCESSFULLY EXACTED COMPETITION ON THE
MERITS WITH RESPECT TO THE TIED PRODUCT IS INEVITABLY CURBED.  INDEED
"TYING AGREEMENTS SERVE HARDLY ANY PURPOSE BEYOND THE SUPPRESSION OF
COMPETITION."  STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, 337
U.S. 293, 305-306.  (FN5)  THEY DENY COMPETITORS FREE ACCESS TO THE
MARKET FOR THE TIED PRODUCT, NOT BECAUSE THE PARTY IMPOSING THE TYING
REQUIREMENTS HAS A BETTER PRODUCT OR A LOWER PRICE BUT BECAUSE OF HIS
POWER OR LEVERAGE IN ANOTHER MARKET.  AT THE SAME TIME BUYERS ARE
FORCED TO FOREGO THEIR FREE CHOICE BETWEEN COMPETING PRODUCTS.  FOR
THESE REASONS "TYING AGREEMENTS FARE HARSHLY UNDER THE LAWS FORBIDDING
RESTRAINTS OF TRADE."  TIMES-PICAYUNE PUBLISHING CO. V. UNITED STATES,
345 U.S. 594, 606.  THEY ARE UNREASONABLE IN AND OF THEMSELVES WHENEVER
A PARTY HAS SUFFICIENT ECONOMIC POWER WITH RESPECT TO THE TYING PRODUCT
TO APPRECIABLY RESTRAIN FREE COMPETITION IN THE MARKET FOR THE TIED
PRODUCT AND A "NOT INSUBSTANTIAL" AMOUNT OF INTERSTATE COMMERCE IS
AFFECTED.  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392.  CF.
UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131, 156-159; UNITED
STATES V. GRIFFITH, 334 U.S. 100.  OF COURSE WHERE THE SELLER HAS NO
CONTROL OR DOMINANCE OVER THE TYING PRODUCT SO THAT IT DOES NOT
REPRESENT AN EFFECTUAL WEAPON TO PRESSURE BUYERS INTO TAKING THE TIED
ITEM ANY RESTRAINT OF TRADE ATTRIBUTABLE TO SUCH TYING ARRANGEMENTS
WOULD OBVIOUSLY BE INSIGNIFICANT AT MOST.  AS A SIMPLE EXAMPLE, IF ONE
OF A DOZEN FOOD STORES IN A COMMUNITY WERE TO REFUSE TO SELL FLOUR
UNLESS THE BUYER ALSO TOOK SUGAR IT WOULD HARDLY TEND TO RESTRAIN
COMPETITION IN SUGAR IF ITS COMPETITORS WERE READY AND ABLE TO SELL
FLOUR BY ITSELF. 

IN THIS CASE WE BELIEVE THE DISTRICT JUDGE WAS CLEARLY CORRECT IN
ENTERING SUMMARY JUDGMENT DECLARING THE DEFENDANT'S "PREFERENTIAL
ROUTING" CLAUSES UNLAWFUL RESTRAINTS OF TRADE.  WE WHOLLY AGREE THAT
THE UNDISPUTED FACTS ESTABLISHED BEYOND ANY GENUINE QUESTION THAT THE
DEFENDANT POSSESSED SUBSTANTIAL ECONOMIC POWER BY VIRTUE OF ITS
EXTENSIVE LANDHOLDINGS WHICH IT USED AS LEVERAGE TO INDUCE LARGE
NUMBERS OF PURCHASERS AND LESSEES TO GIVE IT PREFERENCE, TO THE
EXCLUSION OF ITS COMPETITORS, IN CARRYING GOODS OR PRODUCE FROM THE
LAND TRANSFERRED TO THEM.  NOR CAN THERE BE ANY REAL DOUBT THAT A "NOT
INSUBSTANTIAL" AMOUNT OF INTERSTATE COMMERCE WAS AND IS AFFECTED BY
THESE RESTRICTIVE PROVISIONS. 

AS POINTED OUT BEFORE, THE DEFENDANT WAS INITIALLY GRANTED LARGE
ACREAGES BY CONGRESS IN THE SEVERAL NORTHWESTERN STATES THROUGH WHICH
ITS LINES NOW RUN.  THIS LAND WAS STRATEGICALLY LOCATED IN CHECKERBOARD
FASHION AMID PRIVATE HOLDINGS AND WITHIN ECONOMIC DISTANCE OF
TRANSPORTATION FACILITIES.  NOT ONLY THE TESTIMONY OF VARIOUS WITNESSES
BUT COMMON SENSE MAKES IT EVIDENT THAT THIS PARTICULAR LAND WAS OFTEN
PRIZED BY THOSE WHO PURCHASED OR LEASED IT AND WAS FREQUENTLY ESSENTIAL
TO THEIR BUSINESS ACTIVITIES.  IN DISPOSING OF ITS HOLDINGS THE
DEFENDANT ENTERED INTO CONTRACTS OF SALE OR LEASE COVERING AT LEAST
SEVERAL MILLION ACRES OF LAND WHICH INCLUDED "PREFERENTIAL ROUTING"
CLAUSES.  (FN6)  THE VERY EXISTENCE OF THIS HOST OF TYING ARRANGEMENTS
IS ITSELF COMPELLING EVIDENCE OF THE DEFENDANT'S GREAT POWER, AT LEAST
WHERE, AS HERE, NO OTHER EXPLANATION HAS BEEN OFFERED FOR THE EXISTENCE
OF THESE RESTRAINTS.  THE "PREFERENTIAL ROUTING" CLAUSES CONFERRED NO
BENEFIT ON THE PURCHASERS OR LESSEES.  WHILE THEY GOT THE LAND THEY
WANTED BY YIELDING THEIR FREEDOM TO DEAL WITH COMPETING CARRIERS, THE
DEFENDANT MAKES NO CLAIM THAT IT CAME ANY CHEAPER THAN IF THE
RESTRICTIVE CLAUSES HAD BEEN OMITTED.  IN FACT ANY SUCH PRICE REDUCTION
IN RETURN FOR RAIL SHIPMENTS WOULD HAVE QUITE PLAINLY CONSTITUTED AN
UNLAWFUL REBATE TO THE SHIPPER.  (FN7)  SO FAR AS THE RAILROAD WAS
CONCERNED ITS PURPOSE OBVIOUSLY WAS TO FENCE OUT COMPETITORS, TO STIFLE
COMPETITION.  WHILE THIS MAY HAVE BEEN EXCEEDINGLY BENEFICIAL TO ITS
BUSINESS, IT IS THE VERY TYPE OF THING THE SHERMAN ACT CONDEMNS.  IN
SHORT, WE ARE CONVINCED THAT THE ESSENTIAL PREREQUISITES FOR TREATING
THE DEFENDANT'S TYING ARRANGEMENTS AS UNREASONABLE "PER SE" WERE
CONCLUSIVELY ESTABLISHED BELOW AND THAT THE DEFENDANT HAS OFFERED TO
PROVE NOTHING THERE OR HERE WHICH WOULD ALTER THIS CONCLUSION. 

IN OUR VIEW INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392,
WHICH HAS BEEN UNQUALIFIEDLY APPROVED BY SUBSEQUENT DECISIONS, IS AMPLE
AUTHORITY FOR AFFIRMING THE JUDGMENT BELOW.  IN THAT CASE THE DEFENDANT
REFUSED TO LEASE ITS SALT-DISPENSING MACHINES UNLESS THE LESSEE ALSO
AGREED TO PURCHASE ALL THE SALT IT USED IN THE MACHINES FROM THE
DEFENDANT.  IT WAS ESTABLISHED THAT THE DEFENDANT HAD MADE ABOUT 900
LEASES UNDER SUCH CONDITIONS AND THAT IN THE YEAR IN QUESTION IT HAD
SOLD ABOUT $500,000 WORTH OF SALT FOR USE IN THE LEASED MACHINES.  ON
THAT BASIS WE AFFIRMED UNANIMOUSLY A SUMMARY JUDGMENT FINDING THE
DEFENDANT GUILTY OF VIOLATING SEC. 1 OF THE SHERMAN ACT.  THE COURT
RULED THAT IT WAS "UNREASONABLE, PER SE, TO FORECLOSE COMPETITORS FROM
ANY SUBSTANTIAL MARKET" BY TYING ARRANGEMENTS.  AS WE LATER ANALYZED
THE DECISION, "IT WAS NOT ESTABLISHED THAT EQUIVALENT MACHINES WERE
UNOBTAINABLE, IT WAS NOT INDICATED WHAT PROPORTION OF THE BUSINESS OF
SUPPLYING SUCH MACHINES WAS CONTROLLED BY DEFENDANT, AND IT WAS DEEMED
IRRELEVANT THAT THERE WAS NO EVIDENCE AS TO THE ACTUAL EFFECT OF THE
TYING CLAUSES UPON COMPETITION."  STANDARD OIL CO. OF CALIFORNIA V.
UNITED STATES, 337 U.S. 293, 305. 

THE DEFENDANT ATTEMPTS TO EVADE THE FORCE OF INTERNATIONAL SALT ON
THE GROUND THAT THE TYING PRODUCT THERE WAS PATENTED WHILE HERE IT IS
NOT.  BUT WE DO NOT BELIEVE THIS DISTINCTION HAS, OR SHOULD HAVE, ANY
SIGNIFICANCE.  IN ARRIVING AT ITS DECISION IN INTERNATIONAL SALT THE
COURT PLACED NO RELIANCE ON THE FACT THAT A PATENT WAS INVOLVED NOR DID
IT GIVE THE SLIGHTEST INTIMATION THAT THE OUTCOME WOULD HAVE BEEN ANY
DIFFERENT IF THAT HAD NOT BEEN THE CASE.  IF ANYTHING, THE COURT HELD
THE CHALLENGED TYING ARRANGEMENTS UNLAWFUL DESPITE THE FACT THAT THE
TYING ITEM WAS PATENTED, NOT BECAUSE OF IT.  "BY CONTRACTING TO CLOSE
THIS MARKET FOR SALT AGAINST COMPETITION, INTERNATIONAL HAS ENGAGED IN
A RESTRAINT OF TRADE FOR WHICH ITS PATENTS AFFORD NO IMMUNITY FROM THE
ANTI-TRUST LAWS."  332 U.S., AT 396.  NOR HAVE SUBSEQUENT CASES
CONFINED THE RULE OF PER SE UNREASONABLENESS LAID DOWN IN INTERNATIONAL
SALT TO SITUATIONS INVOLVING PATENTS.  CF. UNITED STATES V. GRIFFITH,
334 U.S. 100; UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131, 156;
TIMES-PICAYUNE PUBLISHING CO. V. UNITED STATES, 345 U.S. 594.  (FN8) 

THE DEFENDANT ARGUES THAT THE HOLDING IN INTERNATIONAL SALT WAS
LIMITED BY THE DECISION IN TIMES-PICAYUNE PUBLISHING CO. V. UNITED
STATES, 345 U.S. 594.  THERE THE COURT HELD THAT A UNIT SYSTEM OF
ADVERTISING IN TWO LOCAL NEWSPAPERS DID NOT VIOLATE SEC. 1 OF THE
SHERMAN ACT.  ON THE FACTS BEFORE IT THE MAJORITY FOUND THERE WAS NO
TYING PROBLEM AT ALL SINCE ONLY ONE PRODUCT WAS INVOLVED AND THAT, IN
ANY EVENT, THE DEFENDANT DID NOT POSSESS SUFFICIENT ECONOMIC POWER IN
THE ADVERTISING MARKET TO BRING ITS UNIT RULE WITHIN THE PRINCIPLE OF
PER SE UNREASONABLENESS.  BUT THE COURT WAS EXTREMELY CAREFUL TO
CONFINE ITS DECISION TO THE NARROW RECORD BEFORE IT.  ID., AT 627-628. 
AND FAR FROM REPUDIATING ANY OF THE PRINCIPLES SET FORTH IN
INTERNATIONAL SALT IT VIGOROUSLY REASSERTED THEM BY BROADLY CONDEMNING
TYING ARRANGEMENTS AS WHOLLY INCONSISTENT WITH THE FUNDAMENTAL
PRINCIPLES OF THE ANTITRUST LAWS.  IN THE COURT'S FORCEFUL TERMS,
"TYING ARRANGEMENTS ...  FLOUT THE SHERMAN ACT'S POLICY THAT
COMPETITION RULE THE MARTS OF TRADE  ...  .  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." 
ID., AT 605.    WHILE THERE IS SOME LANGUAGE IN THE TIMES-PICAYUNE
OPINION WHICH SPEAKS OF "MONOPOLY POWER" OR "DOMINANCE" OVER THE TYING
PRODUCT AS A NECESSARY PRECONDITION FOR APPLICATION OF THE RULE OF PER
SE UNREASONABLENESS TO TYING ARRANGEMENTS, WE DO NOT CONSTRUE THIS
GENERAL LANGUAGE AS REQUIRING ANYTHING MORE THAN SUFFICIENT ECONOMIC
POWER TO IMPOSE AN APPRECIABLE RESTRAINT ON FREE COMPETITION IN THE
TIED PRODUCT (ASSUMING ALL THE TIME, OF COURSE, THAT A "NOT
INSUBSTANTIAL" AMOUNT OF INTERSTATE COMMERCE IS AFFECTED).  TO GIVE IT
ANY OTHER CONSTRUCTION WOULD BE WHOLLY OUT OF ACCORD WITH THE OPINION'S
COGENT ANALYSIS OF THE NATURE AND BANEFUL EFFECTS OF TYING ARRANGEMENTS
AND THEIR INCOMPATIBILITY WITH THE POLICIES UNDERLYING THE SHERMAN
ACT.  TIMES-PICAYUNE, OF COURSE, MUST BE VIEWED IN CONTEXT WITH
INTERNATIONAL SALT AND OUR OTHER DECISIONS CONCERNING TYING
AGREEMENTS.  THERE IS NO WARRANT FOR TREATING IT AS A DEPARTURE FROM
THOSE CASES.  NOR DID IT PURPORT TO BE ANY SUCH THING; RATHER IT SIMPLY
MADE AN EFFORT TO RESTATE THE GOVERNING CONSIDERATIONS IN THIS AREA AS
SET FORTH IN THE PRIOR CASES.  AND IN SO DOING IT MAKES CLEAR, AS DO
THOSE CASES, THAT THE VICE OF TYING ARRANGEMENTS LIES IN THE USE OF
ECONIMIC POWER IN ONE MARKET TO RESTRICT COMPETITION ON THE MARKETS OF
ANOTHER, REGARDLESS OF THE SOURCE FROM WHICH THE POWER IS DERIVED AND
WHETHER THE POWER TAKES THE FORM OF A MONOPOLY OR NOT. 

THE DEFENDANT CONTENDS THAT ITS "PREFERENTIAL ROUTING" CLAUSES ARE
SUBJECT TO SO MANY EXCEPTIONS AND HAVE BEEN ADMINISTERED SO LENIENTLY
THAT THEY DO NOT SIGNIFICANTLY RESTRAIN COMPETITION.  IT POINTS OUT
THAT THESE CLAUSES PERMIT THE VENDEE OR LESSEE TO SHIP BY COMPETING
CARRIER IF ITS RATES ARE LOWER (OR IN SOME INSTANCES IF ITS SERVICE IS
BETTER) THAN THE DEFENDANT'S.  (FN9)  OF COURSE IF THESE RESTRICTIVE
PROVISIONS ARE MERELY HARMLESS SIEVES WITH NO TENDENCY TO RESTRAIN
COMPETITION, AS THE DEFENDANT'S ARGUMENT SEEMS TO IMPLY, IT IS HARD TO
UNDERSTAND WHY IT HAS EXPENDED SO MUCH EFFORT IN OBTAINING THEM IN VAST
NUMBERS AND UPHOLDING THEIR VALIDITY, OR HOW THEY ARE OF ANY BENEFIT TO
ANYONE, EVEN THE DEFENDANT.  BUT HOWEVER THAT MAY BE, THE ESSENTIAL
FACT REMAINS THAT THESE AGREEMENTS ARE BINDING OBLIGATIONS HELD OVER
THE HEADS OF VENDEES WHICH DENY DEFENDANT'S COMPETITORS ACCESS TO THE
FENCED-OFF MARKET ON THE SAME TERMS AS THE DEFENDANT.  IN INTERNATIONAL
SALT THE DEFENDANTS SIMILARLY ARGUED THAT THEIR TYING ARRANGEMENTS WERE
INOFFENSIVE RESTRAINTS BECAUSE THEY ALLOWED LESSEES TO BUY SALT FROM
OTHER SUPPLIERS WHEN THEY OFFERED A LOWER PRICE THAN INTERNATIONAL. 
THE COURT'S ANSWER THERE IS EQUALLY APT HERE. 

"(THIS EXCEPTION) DOES, OF COURSE, AFFORD A MEASURE OF PROTECTION TO
THE LESSEE, BUT IT DOES NOT AVOID THE STIFLING EFFECT OF THE AGREEMENT
ON COMPETITION.  THE APPELLANT HAD AT ALL TIMES A PRIORITY ON THE
BUSINESS AT EQUAL PRICES.  A COMPETITOR WOULD HAVE TO UNDERCUT
APPELLANT'S PRICE TO HAVE ANY HOPE OF CAPTURING THE MARKET, WHILE
APPELLANT COULD HOLD THAT MARKET BY MERELY MEETING COMPETITION.  WE DO
NOT THINK THIS CONCESSION RELIEVES THE CONTRACT OF BEING A RESTRAINT OF
TRADE, ALBEIT A LESS HARSH ONE THAN WOULD RESULT IN THE ABSENCE OF SUCH
A PROVISION."  332 U.S., AT 397. 

ALL OF THIS IS ONLY AGGRAVATED, OF COURSE, HERE IN THE REGULATED
TRANSPORTATION INDUSTRY WHERE THERE IS FREQUENTLY NO REAL RATE
COMPETITION AT ALL AND SUCH EFFECTIVE COMPETITION AS ACTUALLY THRIVES
TAKES OTHER FORMS.  AFFIRMED. 

FN1  13 STAT. 365, 16 STAT. 378.  THE DETAILS OF THESE STATUTORY
GRANTS ARE EXTENSIVELY SET FORTH AND DISCUSSED IN UNITED STATES V.
NORTHERN PACIFIC R. CO., 256 U.S. 51, AND UNITED STATES V. NORTHERN
PACIFIC R. CO., 311 U.S. 317. 

FN2  THE VOLUME AND NATURE OF THESE RESTRICTIVE PROVISIONS ARE SET
FORTH IN MORE DETAIL HEREAFTER.   SEE NOTE 6, INFRA. 

FN3  26 STAT. 209, AS AMENDED, 15 U.S.C. SECS. 1, 4.  ACTUALLY THERE
ARE TWO DEFENDANTS HERE, THE NORTHERN PACIFIC RAILWAY COMPANY AND ITS
WHOLLY OWNED SUBSIDIARY NORTHWESTERN IMPROVEMENT COMPANY WHICH SELLS,
LEASES AND MANAGES THE RAILROAD'S LANDS.  FOR CONVENIENCE AND SINCE
NORTHWESTERN IS COMPLETELY CONTROLLED BY THE RAILROAD WE SHALL SPEAK OF
THE TWO OF THEM AS A SINGLE "DEFENDANT" OR AS THE "RAILROAD." 

FN4  OF COURSE WHERE THE BUYER IS FREE TO TAKE EITHER PRODUCT BY
ITSELF THERE IS NO TYING PROBLEM EVEN THOUGH THE SELLER MAY ALSO OFFER
THE TWO ITEMS AS A UNIT AT A SINGLE PRICE. 

FN5  AS THIS COURT HAS PREVIOUSLY POINTED OUT SUCH NONANTICOMPETITIVE
PURPOSES AS THESE ARRANGEMENTS HAVE BEEN ASSERTED TO POSSESS CAN BE
ADEQUATELY ACCOMPLISHED BY OTHER MEANS MUCH LESS INIMICAL TO
COMPETITION.  SEE, E.G., INTERNATIONAL BUSINESS MACHINES CORP. V.
UNITED STATES, 298 U.S. 131; INTERNATIONAL SALT CO. V. UNITED STATES,
332 U.S. 392. 

FN6  THE DISTRICT JUDGE FOUND (AND HIS FINDINGS ARE NOT CHALLENGED
HERE) THAT AS OF 1949 THERE WERE (1) OVER 1,000 GRAZING LEASES COVERING
MORE THAN 1,000,000 ACRES OF LAND, (2) AT LEAST 72 CONTRACTS FOR THE
SALE OF TIMBERLAND COVERING 1,244,137 ACRES, (3) AT LEAST 31 TIMBER
SALE CONTRACTS COVERING 100,585 ACRES, (4) AT LEAST 19 OIL AND GAS
LEASES COVERING 135,000 ACRES, (5) AT LEAST 16 IRON ORE LEASES COVERING
5,261 ACRES, (6) 12 COAL LEASES (ACREAGE NOT SPECIFIED), AND (7) AT
LEAST 17 OTHER MINERAL LEASES COVERING 6,810 ACRES WHICH CONTAINED
"PREFERENTIAL ROUTING" CLAUSES. 

THE GRAZING LEASES, TIMBER SALES CONTRACTS, TIMBERLAND SALES
CONTRACTS AND IN SOME INSTANCES THE MINERAL LAND LEASES OBLIGATED THE
VENDEE OR LESSEE TO SHIP ITS PRODUCTS BY WAY OF THE DEFENDANT'S LINES
UNLESS RATES OF COMPETITORS WERE LOWER; THE OIL AND GAS LEASES, COAL
LEASES AND THE REMAINDER OF THE MINERAL LAND LEASES, UNLESS THE RATES
WERE LOWER OR THE SERVICE BETTER; THE IRON ORE LEASES, UNLESS THE
DEFENDANT'S RATES, SERVICE AND FACILITIES WERE EQUAL TO THOSE OF ANY
COMPETING LINE. 

FN7  49 U.S.C. SECS. 2, 6 (7), 41 (3). 

FN8  OF COURSE IT IS COMMON KNOWLEDGE THAT A PATENT DOES NOT ALWAYS
CONFER A MONOPOLY OVER A PARTICULAR COMMODITY.  OFTEN THE PATENT IS
LIMITED TO A UNIQUE FORM OR IMPROVEMENT OF THE PRODUCT AND THE ECONOMIC
POWER RESULTING FROM THE PATENT PRIVILEGES IS SLIGHT.  AS A MATTER OF
FACT THE DEFENDANT IN INTERNATIONAL SALT OFFERED TO PROVE THAT
COMPETITIVE SALT MACHINES WERE READILY AVAILABLE WHICH WERE
SATISFACTORY SUBSTITUTES FOR ITS MACHINES (A FACT THE GOVERNMENT DID
NOT CONTROVERT), BUT THE COURT REGARDED SUCH PROOF AS IRRELEVANT. 

FN9  SEE NOTE 6, SUPRA. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

THE COURT AFFIRMS SUMMARY JUDGMENT FOR THE GOVERNMENT BY CONCLUDING
THAT "THE ESSENTIAL PREREQUISITES FOR TREATING THE DEFENDANT'S TYING
ARRANGEMENTS AS UNREASONABLE 'PER SE' WERE CONCLUSIVELY ESTABLISHED
BELOW  ...  ."  IN MY VIEW, THESE PREREQUISITES WERE NOT ESTABLISHED,
AND THIS CASE SHOULD BE REMANDED TO THE DISTRICT COURT FOR A TRIAL ON
THE ISSUE WHETHER APPELLANTS' LANDHOLDINGS GAVE THEM THAT AMOUNT OF
CONTROL OVER THE RELEVANT MARKET FOR LAND NECESSARY UNDER THIS COURT'S
PAST DECISIONS TO MAKE THE CHALLENGED TYING CLAUSES VIOLATIVE PER SE OF
THE SHERMAN ACT.  FURTHER, IN LIGHT OF THE COURT'S DISPOSITION OF THE
CASE AND THE NATURE OF THE FINDINGS MADE BELOW, I THINK THAT THE
COURT'S DISCUSSION OF INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392, IS APT TO PRODUCE CONFUSION AS TO WHAT PROOF IS NECESSARY TO SHOW
PER SE ILLEGALITY OF TYING CLAUSES IN FUTURE SHERMAN ACT CASES. 

BECAUSE THE GOVERNMENT NECESSARILY BASED ITS COMPLAINT ON SEC. 1 OF
THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C. SEC. 1, RATHER
THAN ON SEC. 3 OF THE CLAYTON ACT, (FN1) IT WAS REQUIRED TO SHOW THAT
THE CHALLENGED TYING CLAUSES CONSTITUTED UNREASONABLE RESTRAINTS OF
TRADE, SEE STANDARD OIL CO. OF NEW JERSEY V. UNITED STATES, 221 U.S.
1.  AS A RESULT, THESE TYING CLAUSES RAISED LEGAL ISSUES DIFFERENT FROM
THOSE PRESENTED BY THE LEGISLATIVELY DEFINED TYING CLAUSES INVALIDATED
UNDER THE MORE POINTED PROHIBITIONS OF THE CLAYTON ACT.  TIMES-PICAYUNE
PUBLISHING CO. V. UNITED STATES, 345 U.S. 594, HAS MADE IT CLEAR BEYOND
DISPUTE THAT BOTH PROOF OF DOMINANCE IN THE MARKET FOR THE TYING
PRODUCT AND A SHOWING THAT AN APPRECIABLE VOLUME OF BUSINESS IN THE
TIED PRODUCT IS RESTRAINED ARE ESSENTIAL CONDITIONS TO JUDICIAL
CONDEMNATION OF A TYING CLAUSE AS A PER SE VIOLATION OF THE SHERMAN
ACT.  (FN2)  345 U.S., AT 608-611.  THESE FIRM REQUIREMENTS DERIVE FROM
AN AWARENESS THAT THE VICE APT TO EXIST IN TYING AGREEMENTS "IS A
WIELDING OF MONOPOLISTIC LEVERAGE; A SELLER EXPLOITS HIS DOMINANT
POSITION IN ONE MARKET TO EXPAND HIS EMPIRE INTO THE NEXT."  345 U.S.,
AT 611.  IT IS NOT, AS THE COURT INTIMATES AT ONE POINT IN ITS OPINION,
THAT UNDER THE SHERMAN ACT THE TYING CLAUSE IS ILLEGAL PER SE; THE PER
SE ILLEGALITY RESULTS FROM ITS USE BY VIRTUE OF A VENDOR'S DOMINANCE
OVER THE TYING INTEREST TO FORECLOSE COMPETITORS FROM A SUBSTANTIAL
MARKET IN THE TIED INTEREST. 

MY PRIMARY DIFFICULTY WITH THE COURT'S AFFIRMANCE OF THE JUDGMENT
BELOW IS THAT THE DISTRICT COURT MADE NO FINDING THAT THE APPELLANTS
HAD A "DOMINANT POSITION" OR, AS THIS COURT NOW PUTS IT, "SUFFICIENT
ECONOMIC POWER," IN THE RELEVANT LAND MARKET.  SUCH A FINDING WOULD
INDICATE THAT THOSE REQUIRING LAND OF THE CHARACTER OWNED BY THE
APPELLANTS WOULD BE DRIVEN TO THEM FOR IT, THEREBY PUTTING APPELLANTS
IN A POSITION TO FORECLOSE COMPETING CARRIERS, THROUGH THE MEDIUM OF
TYING CLAUSES, FROM SHIPPING THE PRODUCE FROM THE LANDS SOLD OR
LEASED.  THE DISTRICT COURT SEEMS TO HAVE CONCEIVED THAT NO MORE NEED
BE SHOWN ON THIS SCORE THAN THAT THE APPELLANTS OWNED THE PARTICULAR
TRACTS OF LAND SOLD OR LEASED SUBJECT TO A TYING CLAUSE.  THUS IT
SAID: 

"DEFENDANTS ARGUE THAT THE FIRST TYING ELEMENT, I.E., MARKET
DOMINATION OVER THE TYING PRODUCT, IS NOT ESTABLISHED BECAUSE THE
RECORD DOES NOT SHOW THE PROPORTION OF N.P.  (NORTHERN PACIFIC) LANDS
OF VARIOUS TYPES TO THE TOTAL OF THE LANDS OF THE SAME TYPES SOLD AND
LEASED IN THE AREA OF DEFENDANTS' OPERATIONS.  THIS CONTENTION IGNORES
THE PLAIN LANGUAGE OF THE CITED DECISIONS ("TYING CLAUSE" CASES IN THIS
COURT), PROVIDING THAT MARKET DOMINANCE OF 'THE TYING COMMODITY' IS
REQUIRED.  THE TYING COMMODITY NEED ONLY BE THE PARTICULAR PROPERTY OR
PRODUCT TO WHICH FORCED PURCHASE OF THE SECOND COMMODITY IS TIED;
CERTAINLY IT DOES NOT NECESSARILY INCLUDE ALL OF THE SIMILAR AND
COMPETING COMMODITIES WHICH MAY BE IN THE MARKET  ...  . 

"THE TYING COMMODITY IN THE PRESENT CASE IS THE LAND PRESENTLY OR
FORMERLY OWNED BY N.P. UNRESTRICTED FEE-SIMPLE TITLE TO LAND VESTS IN
THE OWNER ABSOLUTE DOMINATION OF THE MARKET IN SUCH LAND.  BY THE
OWNERSHIP OF THE LANDS AND RESULTING DOMINANCE IN THE MARKET THEREFOR
DEFENDANTS WERE ABLE TO IMPOSE THE TRAFFIC CLAUSES IN QUESTION ON THE
GRANTEES AND LESSEES OF THE LAND."  142 F. SUPP. 679, 684. 

IN CONFORMITY WITH THESE VIEWS THE ULTIMATE FINDINGS OF THE DISTRICT
COURT ON THE ISSUE OF "CONTROL" WERE ONLY THESE: 

"37.  DEFENDANTS, AS SELLERS AND AS LESSORS, BY REASON OF TITLE IN
FEE SIMPLE, HAVE DOMINANCE IN THE LANDS NOW OWNED BY THEM AND HAD
DOMINANCE IN THE LANDS FORMERLY OWNED AT THE TIME OF SALE OF SUCH
LANDS. 

"38.  DEFENDANTS HAVE USED THEIR DOMINANCE IN THE LANDS SOLD AND
LEASED TO REQUIRE PURCHASERS AND LESSEES TO PURCHASE AND USE NORTHERN
PACIFIC'S TRANSPORTATION SERVICE, UNDER THE CONDITIONS STATED IN
FINDING 10."  (FINDING 10 RELATES TO THE TERMS OF THE TYING CLAUSES.) 

I DO NOT THINK THAT THESE FINDINGS AS TO APPELLANTS' AD HOC
"DOMINANCE" OVER THE PARTICULAR LAND SOLD OR LEASED SUFFICE TO MEET THE
SHOWING OF MARKET CONTROL WHICH TIMES-PICAYUNE ESTABLISHED AS ONE OF
THE ESSENTIAL PREREQUISITES TO HOLDING TYING CLAUSES ILLEGAL PER SE
UNDER THE SHERMAN ACT.  IN EFFECT THE DISTRICT COURT'S VIEW BYPASSES
THAT REQUIREMENT AND MADE THE VALIDITY OF THESE TYING CLAUSES DEPEND
ENTIRELY ON THE COMMERCIAL RESTRAINT ACCOMPLISHED BY THEM.  THE
DISTRICT COURT SHOULD HAVE TAKEN EVIDENCE OF THE RELATIVE STRENGTH OF
APPELLANTS' LANDHOLDINGS VIS-A-VIS THAT OF OTHERS IN THE APPROPRIATE
MARKET FOR LAND OF THE TYPES NOW OR FORMERLY POSSESSED BY APPELLANTS,
(FN3) OF THE "UNIQUENESS" OF APPELLANTS' LANDHOLDINGS IN TERMS OF
QUALITY OR USE TO WHICH THEY MAY HAVE BEEN PUT, AND OF THE EXTENT TO
WHICH THE LOCATION OF THE LANDS ON OR NEAR THE NORTHERN PACIFIC'S
RAILROAD LINE, OR ANY OTHER CIRCUMSTANCES, PUT THE APPELLANTS IN A
STRATEGIC POSITION AS AGAINST OTHER SELLERS AND LESSORS OF LAND.  SHORT
OF SUCH AN INQUIRY I DO NOT SEE HOW IT CAN BE DETERMINED WHETHER THE
APPELLANTS OCCUPIED SUCH A DOMINANT POSITION IN THE RELEVANT LAND
MARKET, CF. UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 351 U.S.
377, AS TO MAKE THESE TYING CLAUSES ILLEGAL PER SE UNDER THE SHERMAN
ACT. 

EXPLANATION FOR THE COURT'S FAILURE TO REMAND WITH INSTRUCTIONS TO
PURSUE SUCH AN INQUIRY APPARENTLY LIES IN PART IN ITS STATEMENT THAT
THE "VERY EXISTENCE OF THIS HOST OF TYING ARRANGEMENTS IS ITSELF
COMPELLING EVIDENCE OF THE DEFENDANT'S GREAT POWER" OVER THE LAND
MARKET.  I DO NOT DENY THAT THERE MAY BE INSTANCES WHERE ECONOMIC
COERCION BY A VENDOR MAY BE INFERRED, WITHOUT ANY DIRECT SHOWING OF
MARKET DOMINANCE, FROM THE MERE EXISTENCE OF THE TYING ARRANGEMENTS
THEMSELVES, AS WHERE THE VENDEE IS APT TO SUFFER ECONOMIC DETRIMENT
FROM THE TYING CLAUSE BECAUSE PRECLUDED FROM PURCHASING A TIED PRODUCT
AT BETTER TERMS OR OF A BETTER QUALITY ELSEWHERE.  BUT THE TYING
CLAUSES HERE ARE NOT CAST IN SUCH ABSOLUTE TERMS.  THE RECORD INDICATES
THAT A LARGE MAJORITY OF APPELLANTS' LANDS WERE CLOSE TO THE NORTHERN
PACIFIC LINES AND THUS VENDEES OR LESSEES OF THESE LANDS MIGHT BE
EXPECTED TO UTILIZE NORTHERN PACIFIC AS A MATTER OF COURSE.  FURTHER,
SUBSTANTIALLY ALL THE TYING CLAUSES, AS FOUND BY THE DISTRICT COURT,
CONTAINED PROVISOS LEAVING THE VENDEE OR LESSEE FREE TO SHIP BY OTHER
RAILROADS WHEN OFFERED EITHER LOWER RATES OR LOWER RATES OR SUPERIOR
SERVICE.  IN THESE CIRCUMSTANCES IT WOULD APPEAR THAT THE INCLUSION OF
THE TYING CLAUSES IN CONTRACTS OR LEASES MIGHT HAVE BEEN LARGELY A
MATTER OF INDIFFERENCE TO AT LEAST MANY OF THE PURCHASERS OR LESSEES OF
APPELLANTS' LAND, AND HENCE THAT MORE IS NEEDED THAN THE TYING CLAUSES
THEMSELVES TO WARRANT THE INFERENCE THAT ACCEPTANCE OF THE TYING
CLAUSES RESULTED FROM COERCION EXERCISED BY APPELLANTS THROUGH THEIR
POSITION IN THE LAND MARKET. 

PARTICULARLY IN VIEW OF THE COURT'S AFFIRMANCE OF A JUDGMENT BASED ON
SO INADEQUATE A RECORD, I HAVE FURTHER DIFFICULTY WITH THE OPINION IN
ITS TREATMENT OF INTERNATIONAL SALT, THE DECISION ON WHICH THE COURT
PRINCIPALLY RELIES.  THE COURT REGARDS THAT CASE AS MAKING IRRELEVANT
PROOF OF MARKET DOMINANCE IN THE TYING INTEREST, BUT IT SEEMS TO ME
THAT TIMES-PICAYUNE HAS LAID TO REST ALL DOUBT AS TO THE NEED FOR CLEAR
PROOF ON THIS ISSUE.  IN FACT THAT CASE CONSIDERED THAT IN
INTERNATIONAL SALT THE REQUIRED ELEMENT OF PROOF WAS SUPPLIED BY THE
PATENTS THEMSELVES WHICH "CONFERRED MONOPOLISTIC, ALBEIT LAWFUL, MARKET
CONTROL" OVER THE TYING PRODUCT, 345 U.S., AT 608, AS INDEED THE COURT
IN INTERNATIONAL SALT ITSELF SUGGESTED BY PREFACING ITS HOLDING WITH
THE STATEMENT THAT "(DEFENDANT'S) PATENTS CONFER A LIMITED MONOPOLY OF
THE INVENTION THEY REWARD."  332 U.S., AT 395.  STILL THE COURT TODAY
STATES THAT THE TYING CLAUSES WERE THERE STRUCK DOWN DESPITE THE FACT
THAT THE TYING PRODUCT WAS PATENTED.  IN SHORT, INSOFAR AS THE SHERMAN
ACT IS CONCERNED, IT APPEARS THAT INTERNATIONAL SALT SIMPLY TREATED A
PATENT AS THE EQUIVALENT OF PROOF OF MARKET CONTROL - A VIEW FURTHER
SUPPORTED BY WHAT WAS SAID ABOUT INTERNATIONAL SALT IN STANDARD OIL CO.
OF CALIFORNIA V. UNITED STATES, 337 U.S. 293, AT 304, 307. 

THE RELIANCE ON INTERNATIONAL SALT WITH THE NEW SCOPE THE COURT NOW
GIVES IT IS PUZZLING IN LIGHT OF THE COURT'S EXPRESS RECOGNITION THAT A
FINDING OF SUFFICIENT ECONOMIC POWER OVER LAND TO RESTRICT COMPETITION
IN FREIGHT SERVICES IS AN ESSENTIAL ELEMENT HERE.  THE COURT HEIGHTENS
THIS PARADOX BY ITS EFFORT TO SATISFY THIS REQUIREMENT WITH THE
ASSERTION THAT "UNDISPUTED FACTS" CONCLUSIVELY ESTABLISHED THE
EXISTENCE OF THIS POWER.  BUT IN SO CONCLUDING, IT COULD HARDLY RELY ON
THE MARKET-DOMINANCE FINDINGS BELOW WHICH, AS I HAVE TRIED TO SHOW,
RESTED UPON THE DISTRICT COURT'S EVIDENT MISCONCEPTION OF TIMES
PICAYUNE. 

I DO NOT UNDERSTAND THE COURT TO EXCUSE FINDINGS AS TO CONTROL BY
ADOPTING THE GOVERNMENT'S ARGUMENT THAT THIS CASE SHOULD BE BROUGHT
WITHIN INTERNATIONAL SALT BY ANALOGY OF THE OWNERSHIP OF LAND TO THAT
OF A PATENT, SO THAT THE PARTICULAR TRACT OF LAND INVOLVED IN EACH
PURCHASE OR LEASE ITSELF CONSTITUTES THE RELEVANT MARKET.  THE RECORD
IN ANY EVENT IS WITHOUT SUPPORT FOR SUCH A THEORY.  NO FINDINGS WERE
MADE BELOW AS TO THE UNIQUENESS OF ANY OF APPELLANTS' LANDS EITHER
BECAUSE OF THEIR LOCATION (FN4) OR BECAUSE OF THEIR PECULIAR QUALITIES
ENABLING PRODUCTION OF SUPERIOR MINERAL, TIMBER, OR AGRICULTURAL
PRODUCTS.  WITHOUT SUCH AN INQUIRY, I DO NOT SEE HOW APPELLANTS'
SUPPOSED DOMINANCE OF THE LAND MARKET CAN BE BASED ON THE THEORY THAT
THEIR LANDS WERE "UNIQUE." 

FINALLY, THE COURT LEAVES IN UNSETTLING DOUBT THE FUTURE EFFECT OF
ITS STATEMENT THAT THE USE OF THE WORD "DOMINANCE" IN THE TIMES
PICAYUNE IMPLIES NO MORE OF A SHOWING OF MARKET DOMINANCE THAN
"SUFFICIENT ECONOMIC POWER TO IMPOSE AN APPRECIABLE RESTRAINT ON FREE
COMPETITION IN THE TIED PRODUCT."  AS AN ABSTRACTION ONE CAN HARDLY
QUARREL WITH THIS PIECE OF SURGERY, FOR I DO NOT CLAIM THAT A MONOPOLY
IN THE SENSE OF SEC. 2 OF THE SHERMAN ACT MUST BE SHOWN OVER A TYING
PRODUCT.  AS ALREADY INDICATED, I SHOULD THINK THAT A SHOWING OF
"SUFFICIENT ECONOMIC POWER" IN CASES OF THIS KIND COULD BE BASED UPON A
VARIETY OF FACTORS, SUCH AS SIGNIFICANT PERCENTAGE CONTROL OF THE
RELEVANT MARKET, DESIRABILITY OF THE PRODUCT TO THE PURCHASER, USE OF
TYING CLAUSES WHICH WOULD BE LIKELY TO RESULT IN ECONOMIC DETRIMENT TO
VENDEES OR LESSEES, AND SUCH UNIQUENESS OF THE TYING PRODUCT AS TO
SUGGEST COMPARISON WITH A MONOPOLY BY PATENT.  BUT I VENTURE TO PREDICT
THAT THE LANGUAGE OF THE COURT, TAKEN IN CONJUNCTION WITH ITS APPROVAL
OF THE SUMMARY DISPOSITION OF THIS CASE, WILL LEAVE COURTS AND LAWYERS
IN CONFUSION AS TO WHAT THE PROPER STANDARDS NOW ARE FOR JUDGING TYING
CLAUSES UNDER THE SHERMAN ACT. 

THE COURT'S ACTION IN AFFIRMING THE JUDGMENT BELOW SANCTIONS WHAT I
DEEM TO BE A SERIOUS ABUSE OF THE SUMMARY JUDGMENT PROCEDURES.  CF.
SARTOR V. ARKANSAS NATURAL GAS CORP., 321 U.S. 620.  A RECORD BARREN OF
FACTS ADEQUATE TO SUPPORT EITHER A FINDING OF ECONOMIC POWER OVER A
RELEVANT LAND MARKET OR A FINDING THAT THE LAND INVOLVED IS SO UNIQUE
AS TO CONSTITUTE IN ITSELF THE RELEVANT MARKET IS REMEDIED BY THIS
COURT'S RELIANCE UPON "COMMON SENSE" AND JUDICIAL NOTICE OF APPELLANTS'
COMMANDING POSITION.  BUT THESE ARE POOR SUBSTITUTES FOR THE PROOF TO
WHICH THE GOVERNMENT SHOULD BE PUT.  I WOULD REMAND TO THE DISTRICT
COURT FOR A TRIAL AND FINDINGS ON THE ISSUE OF "DOMINANCE." 

FN1  THE TYING ARRANGEMENTS PROSCRIBED BY SEC. 3 OF THE CLAYTON ACT
RELATE ONLY TO "GOODS, WARES, MERCHANDISE, MACHINERY, SUPPLIES OR OTHER
COMMODITIES  ...  ."  38 STAT.  731, 15 U.S.C. SEC. 14. 

FN2  THE COURT THERE STATED THAT THE PRESENCE OF EITHER FACTOR IS
SUFFICIENT FOR INVALIDATION OF A TYING CLAUSE UNDER THE CLAYTON ACT. 
345 U.S., AT 608-609. 

FN3  THE FINDINGS ENTERED BY THE DISTRICT COURT MAKE NO REFERENCE TO
APPELLANTS' PERCENTAGE OWNERSHIP OF A PROPER MARKET FOR LAND, AND
INDEED THE RECORD CONTAINS IN ONLY ONE INSTANCE STATISTICS BEARING ON
THIS PROBLEM.  IN THE PERIOD BETWEEN 1935 AND 1942, IT APPEARS THAT
APPELLANTS' HOLDINGS OF MERCHANTABLE TIMBER IN MONTANA, IDAHO, AND
WASHINGTON CONSTITUTED APPROXIMATELY 5% OF THE TOTAL MERCHANTABLE
TIMBER IN THOSE STATES. 

FN4  AFFIDAVITS BEFORE THE DISTRICT COURT DID INDICATE THAT CERTAIN
LANDHOLDINGS OF APPELLANTS, PARTICULARLY GRAZING LANDS, WERE IN A
CHECKERBOARD PATTERN AMONG PRIVATE HOLDINGS, THEREBY GIVING APPELLANTS
A STRATEGIC POSITION WITH RESPECT TO THESE LANDS SINCE THE PRIVATE
LANDHOLDERS OFTEN FOUND IT NECESSARY TO ACQUIRE APPELLANTS' LANDS TO
FILL GAPS IN EXISTING RANGES.  THE AMOUNT OF SUCH LAND DOES NOT APPEAR,
AND I DO NOT THINK THAT THESE AFFIDAVITS JUSTIFY SHORT-CIRCUITING AN
INQUIRY INTO THE BROAD ISSUE OF MARKET DOMINANCE. 
..END :










AMERICAN MOTORS CORP. V. CITY OF KENOSHA 356 U.S. 21 


NO. 343.  DECIDED MARCH 10, 1958.  - 274 WIS. 315, 80 N.W.2D 363,
AFFIRMED. 


AMERICAN MOTORS CORP. ET AL. V. CITY OF KENOSHA. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON, MR. JUSTICE HARLAN, AND
MR. JUSTICE WHITTAKER DISSENT FOR THE REASONS SET FORTH IN THEIR
DISSENTING OPINIONS IN CITY OF DETROIT V. MURRAY CORP., 355 U.S. 489,
495, 505, 511, DECIDED MARCH 3, 1958. 
..END :













ZIVNOSTENSKA BANKA, NATIONAL CORP. V. STEPHEN, AUGSTEIN 356 U.S. 22. 


NO. 717.  DECIDED MARCH 10, 1958.  - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  3 N.Y.2D 862, 145
N.E.2D 24. 


ZIVNOSTENSKA BANKA, NATIONAL CORPORATION, V. STEPHEN, FORMERLY KNOWN AS
AUGSTEIN, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION FOR LEAVE TO FILE BRIEF OF FRANK PETSCHEK ET AL., AS AMICI
CURIAE, IS GRANTED.  THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS
DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














HOUSTON BELT & TERMINAL RAILWAY V. UNITED STATES 356 U.S. 23. 


NO. 730.  DECIDED MARCH 10, 1958.  - 153 F. SUPP. 3, AFFIRMED. 


HOUSTON BELT & TERMINAL RAILWAY CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















MARSHALL V. BRUCKER 356 U.S. 24. 


NO. 41, MISC.  DECIDED MARCH 10, 1958.  - REPORTED BELOW:  100 U.S. APP.
D.C. 256, 243 F.2D 834. 


CERTIORARI GRANTED; JUDGMENT REVERSED; AND CASE REMANDED TO DISTRICT
COURT FOR APPROPRIATE RELIEF IN THE LIGHT OF HARMON V. BRUCKER, 355
U.S. 579. 

MARSHALL V. BRUCKER, SECRETARY OF THE ARMY. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS REVERSED AND
THE CASE IS REMANDED TO THE DISTRICT COURT FOR APPROPRIATE RELIEF IN
THE LIGHT OF HARMON V. BRUCKER AND ABRAMOWITZ V. BRUCKER, 355 U.S. 579,
DECIDED MARCH 3, 1958. 

MR. JUSTICE CLARK DISSENTS FROM THIS DISPOSITION OF THE CASE FOR THE
REASONS STATED IN HIS DISSENTING OPINION IN THESE CASES. 
..END :




HOWARD V. UNITED STATES 356 U.S. 25 


NO. 186, MISC.  DECIDED MARCH 10, 1958.  - REPORTED BELOW:  101 U.S.
APP. D.C. 131, 247 F.2D 537. 


ON REPRESENTATIONS OF THE SOLICITOR GENERAL AND EXAMINATION OF THE
RECORD, CERTIORARI GRANTED, JUDGMENT OF COURT OF APPEALS VACATED, AND
CASE REMANDED TO DISTRICT COURT WITH DIRECTIONS TO AFFORD PETITIONER A
HEARING ON HIS MOTION UNDER 28 U.S.C. SEC. 2255. 

HOWARD V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  UPON
THE REPRESENTATIONS MADE IN THE SOLICITOR GENERAL'S MEMORANDUM, AND AN
EXAMINATION OF THE RECORD, THE PETITION FOR WRIT OF CERTIORARI IS
GRANTED, THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT IS VACATED, AND THE CAUSE IS REMANDED TO
THE DISTRICT COURT WITH DIRECTIONS TO AFFORD PETITIONER A HEARING ON
HIS MOTION UNDER 28 U.S.C. SEC.  2255. 
..END :





SHELTON V. UNITED STATES 356 U.S. 26 


NO. 223, MISC.  DECIDED MARCH 10, 1958.  - REPORTED BELOW:  246 F.2D
571. 


CERTIORARI GRANTED; ON CONSIDERATION OF THE RECORD AND CONFESSION OF
ERROR BY THE SOLICITOR GENERAL THAT THE PLEA OF GUILTY MAY HAVE BEEN
IMPROPERLY OBTAINED, JUDGMENT OF THE COURT OF APPEALS REVERSED AND CASE
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS. 

SHELTON V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  UPON CONSIDERATION OF THE ENTIRE
RECORD AND CONFESSION OF ERROR BY THE SOLICITOR GENERAL THAT THE PLEA
OF GUILTY MAY HAVE BEEN IMPROPERLY OBTAINED, THE JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT IS REVERSED AND THE CASE
IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS. 
..END :






UNITED STATES V. CITY OF DETROIT 355 U.S. 466 


NO. 26.  ARGUED NOVEMBER 14, 1957 - DECIDED MARCH 3, 1958 - 345 MICH.
601, 77 N.W.2D 79, AFFIRMED. 


UNDER MICHIGAN PUBLIC ACT 189 OF 1953, THE CITY OF DETROIT ASSESSED
AGAINST A PRIVATE CORPORATION ENGAGED IN BUSINESS FOR PROFIT TAXES
BASED UPON THE VALUE OF REAL PROPERTY OWNED BY THE UNITED STATES AND
LEASED TO THE CORPORATION UNDER A LEASE PERMITTING THE CORPORATION TO
DEDUCT FROM THE AGREED RENTAL ANY SUCH TAXES PAID BY IT BUT RESERVING
TO THE GOVERNMENT THE RIGHT TO CONTEST THE VALIDITY OF SUCH TAXES.  IN
EFFECT, THE ACT PROVIDES THAT, WHEN TAX-EXEMPT REAL PROPERTY IS USED BY
A PRIVATE PARTY IN A BUSINESS CONDUCTED FOR PROFIT, SUCH PRIVATE PARTY
IS SUBJECT TO TAXATION IN THE SAME AMOUNT AND TO THE SAME EXTENT AS
THOUGH HE OWNED THE PROPERTY; THAT SUCH TAXES SHALL BE ASSESSED AND
COLLECTED IN THE SAME MANNER AS TAXES ASSESSED TO THE OWNERS OF REAL
PROPERTY, EXCEPT THAT THEY SHALL NOT BECOME A LIEN AGAINST THE PROPERTY
BUT SHALL BE A DEBT DUE FROM THE USER AND COLLECTIBLE BY DIRECT ACTION;
AND THAT THE ACT SHALL NOT APPLY TO FEDERAL PROPERTY FOR WHICH PAYMENTS
ARE MADE IN LIEU OF TAXES IN AMOUNTS EQUIVALENT TO TAXES WHICH
OTHERWISE MIGHT LAWFULLY BE ASSESSED.  HELD:  THE ACT, ON ITS FACE AND
AS HERE APPLIED, DOES NOT INVADE THE CONSTITUTIONAL IMMUNITY OF FEDERAL
PROPERTY FROM TAXATION BY THE STATES OR DISCRIMINATE AGAINST THE
GOVERNMENT OR THOSE WITH WHOM IT DEALS.  PP. 467-475. 

(A)  THE GOVERNMENT'S CONSTITUTIONAL IMMUNITY DOES NOT SHIELD PRIVATE
PARTIES FROM STATE TAXES IMPOSED ON THEM MERELY BECAUSE PART OR ALL OF
THE FINANCIAL BURDEN OF THE TAXES EVENTUALLY FALLS ON THE GOVERNMENT. 
PP. 469-473. 

(B)  THE TAX HERE INVOLVED IS NOT LEVIED ON THE GOVERNMENT OR ITS
PROPERTY BUT ON THE PRIVATE LESSEE WHO USES THE PROPERTY IN A BUSINESS
CONDUCTED FOR PROFIT.  P. 469. 

(C)  THE FACT THAT THE TAX IS MEASURED BY THE VALUE OF THE PROPERTY
USED DOES NOT JUSTIFY TREATING IT AS A MERE CONTRIVANCE TO TAX THE
PROPERTY ITSELF.  PP. 470-471. 

(D)  UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, DISTINGUISHED. 
PP. 471-472. 

(E)  NEITHER ON ITS FACE NOR AS HERE APPLIED, DOES THIS TAX OPERATE
SO AS TO DISCRIMINATE AGAINST THE FEDERAL GOVERNMENT OR THOSE WITH WHOM
IT DEALS.  PP. 473-474. 

(F)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE ACT
CREATES AN EXCEPTION TO THE TAX ON USERS WHERE PAYMENTS IN LIEU OF
TAXES ARE MADE BY THE UNITED STATES "IN AMOUNTS EQUIVALENT TO TAXES
WHICH MIGHT OTHERWISE BE LAWFULLY ASSESSED."  P. 474, N. 6. 

(G)  TO HOLD THAT THE TAX IMPOSED HERE ON PRIVATE BUSINESS VIOLATES
THE GOVERNMENT'S CONSTITUTIONAL TAX IMMUNITY WOULD IMPROPERLY IMPAIR
THE TAXING POWER OF THE STATE.  P. 475. 

UNITED STATES ET AL. V. CITY OF DETROIT. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES ASKS THIS COURT TO STRIKE DOWN AS UNCONSTITUTIONAL
A TAX STATUTE OF THE STATE OF MICHIGAN AS APPLIED TO A LESSEE OF
GOVERNMENT PROPERTY.  IN GENERAL TERMS THIS STATUTE, PUBLIC ACT 189 OF
1953, PROVIDES THAT WHEN TAX-EXEMPT REAL PROPERTY IS USED BY A PRIVATE
PARTY IN A BUSINESS CONDUCTED FOR PROFIT THE PRIVATE PARTY IS SUBJECT
TO TAXATION TO THE SAME EXTENT AS THOUGH HE OWNED THE PROPERTY.  (FN1) 

HERE THE UNITED STATES WAS THE OWNER OF AN INDUSTRIAL PLANT IN
DETROIT, MICHIGAN.  IT LEASED A PORTION OF THAT PLANT TO THE BORG
WARNER CORPORATION AT A STIPULATED ANNUAL RENTAL FOR USE IN THE
LATTER'S PRIVATE MANUFACTURING BUSINESS.  THE LEASE PROVIDED THAT BORG
WARNER COULD DEDUCT FROM THE AGREED RENTAL ANY TAXES PAID BY IT UNDER
PUBLIC ACT 189 OR SIMILAR STATE STATUTES ENACTED DURING THE TERM OF THE
LEASE, BUT THE GOVERNMENT RESERVED THE RIGHT TO CONTEST THE VALIDITY OF
SUCH TAXES. 

ON JANUARY 1, 1954, A TAX WAS ASSESSED AGAINST BORG-WARNER UNDER
PUBLIC ACT 189.  THE TAX WAS BASED ON THE VALUE OF THE PROPERTY LEASED
AND COMPUTED AT THE RATE USED FOR CALCULATING REAL PROPERTY TAXES. 
UNDER PROTEST BORG-WARNER PAID PART OF THE ASSESSMENT.  SUBSEQUENTLY
THE UNITED STATES AND BORG-WARNER FILED THIS SUIT IN A STATE COURT FOR
REFUND OF THE AMOUNT PAID.  THEY CHARGED THAT THE TAX WAS REPUGNANT TO
THE CONSTITUTION OF THE UNITED STATES BECAUSE IT IMPOSED A LEVY UPON
GOVERNMENT PROPERTY AND DISCRIMINATED AGAINST THOSE USING SUCH
PROPERTY.  THE LOWER COURT HOWEVER UPHELD THE TAX AND THE MICHIGAN
SUPREME COURT AFFIRMED.  345 MICH. 601, 77 N.W.2D 79.  IT RULED THAT
THE TAX WAS NEITHER DISCRIMINATORY NOR ON THE PROPERTY OF THE UNITED
STATES BUT INSTEAD WAS A TAX ON THE LESSEE'S PRIVILEGE OF USING THE
PROPERTY IN A PRIVATE BUSINESS CONDUCTED FOR PROFIT.  WE NOTED PROBABLE
JURISDICTION OF AN APPEAL BY THE UNITED STATES AND BORG-WARNER FROM
THIS DECISION.  352 U.S. 962. 

THIS COURT HAS HELD THAT A STATE CANNOT CONSTITUTIONALLY LEVY A TAX
DIRECTLY AGAINST THE GOVERNMENT OF THE UNITED STATES OR ITS PROPERTY
WITHOUT THE CONSENT OF CONGRESS.  M'CULLOCH V. MARYLAND, 4 WHEAT, 316;
VAN BROCKLIN V. TENNESSEE, 117 U.S. 151.  AT THE SAME TIME IT IS WELL
SETTLED THAT THE GOVERNMENT'S CONSTITUTIONAL IMMUNITY DOES NOT SHIELD
PRIVATE PARTIES WITH WHOM IT DOES BUSINESS FROM STATE TAXES IMPOSED ON
THEM MERELY BECAUSE PART OR ALL OF THE FINANCIAL BURDEN OF THE TAX
EVENTUALLY FALLS ON THE GOVERNMENT.  SEE, E.G., JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134; GRAVES V. NEW YORK EX REL. O'KEEFE, 306
U.S. 466; ALABAMA V. KING & BOOZER, 314 U.S. 1.  OF COURSE IN
DETERMINING WHETHER A TAX IS ACTUALLY LAID ON THE UNITED STATES OR ITS
PROPERTY THIS COURT GOES BEYOND THE BARE FACE OF THE TAXING STATUTE TO
CONSIDER ALL RELEVANT CIRCUMSTANCES. 

THE MICHIGAN STATUTE CHALLENGED HERE IMPOSES A TAX ON PRIVATE LESSEES
AND USERS OF TAX-EXEMPT PROPERTY WHO USE SUCH PROPERTY IN A BUSINESS
CONDUCTED FOR PROFIT.  ANY TAXES DUE UNDER THE STATUTE ARE THE PERSONAL
OBLIGATION OF THE PRIVATE LESSEE OR USER.  THE OWNER IS NOT LIABLE FOR
THEIR PAYMENT NOR IS THE PROPERTY ITSELF SUBJECT TO ANY LIEN IF THEY
REMAIN UNPAID.  SO FAR AS THE UNITED STATES IS CONCERNED AS THE OWNER
OF THE EXEMPT PROPERTY USED IN THIS CASE IT SEEMS CLEAR THAT THERE WAS
NO ATTEMPT TO LEVY AGAINST ITS PROPERTY OR TREASURY. 

NEVERTHELESS THE GOVERNMENT ARGUES THAT SINCE THE TAX IS MEASURED BY
THE VALUE OF THE PROPERTY USED IT SHOULD BE TREATED AS NOTHING BUT A
CONTRIVANCE TO LAY A TAX ON THAT PROPERTY.  WE DO NOT FIND THIS
ARGUMENT PERSUASIVE.  A TAX FOR THE BENEFICIAL USE OF PROPERTY, AS
DISTINGUISHED FROM A TAX ON THE PROPERTY ITSELF, HAS LONG BEEN A
COMMONPLACE IN THIS COUNTRY.  SEE HENNEFORD V. SILAS MASON CO., 300
U.S. 577, 582-583.  IN MEASURING SUCH A USE TAX IT SEEMS NEITHER
IRREGULAR NOR EXTRAVAGANT TO RESORT TO THE VALUE OF THE PROPERTY USED;
INDEED NO MORE SO THAN MEASURING A SALES TAX BY THE VALUE OF THE
PROPERTY SOLD.  PUBLIC ACT 189 WAS APPARENTLY DESIGNED TO EQUALIZE THE
ANNUAL TAX BURDEN CARRIED BY PRIVATE BUSINESSES USING EXEMPT PROPERTY
WITH THAT OF SIMILAR BUSINESSES USING NONEXEMPT PROPERTY.  OTHER THINGS
BEING THE SAME, IT SEEMS OBVIOUS ENOUGH THAT USE OF EXEMPT PROPERTY IS
WORTH AS MUCH AS USE OF COMPARABLE TAXED PROPERTY DURING THE SAME
INTERVAL.  IN OUR JUDGMENT IT WAS NOT AN IMPERMISSIBLE SUBTERFUGE BUT A
PERMISSIBLE EXERCISE OF ITS TAXING POWER FOR MICHIGAN TO COMPUTE ITS
TAX BY THE VALUE OF THE PROPERTY USED. 

A NUMBER OF DECISIONS BY THIS COURT SUPPORT THIS CONCLUSION.  FOR
EXAMPLE IN CURRY V. UNITED STATES, 314 U.S. 14, WE UPHELD UNANIMOUSLY A
STATE USE TAX ON A CONTRACTOR WHO WAS USING GOVERNMENT-OWNED MATERIALS
ALTHOUGH THE TAX WAS BASED ON THE FULL VALUE OF THOSE MATERIALS. 
SIMILARLY IN ESSO STANDARD OIL CO. V. EVANS, 345 U.S. 495, THE COURT
HELD VALID A STATE TAX ON THE PRIVILEGE OF STORING GASOLINE EVEN THOUGH
THAT PART OF THE TAX WHICH WAS CHALLENGED WAS MEASURED BY THE NUMBER OF
GALLONS OF GOVERNMENT-OWNED GASOLINE STORED WITH THE TAXPAYER.  WHILE
IT IS TRUE THAT THE TAX HERE IS MEASURED BY THE VALUE OF GOVERNMENT
PROPERTY INSTEAD OF BY ITS QUANTITY AS IN ESSO SUCH TECHNICAL
DIFFERENCE HAS NO MEANINGFUL SIGNIFICANCE IN DETERMINING WHETHER THE
CONSTITUTION PROHIBITS THIS TAX.  STILL OTHER CASES FURTHER CONFIRM THE
PROPOSITION THAT IT MAY BE PERMISSIBLE FOR A STATE TO MEASURE A TAX
IMPOSED ON A VALID SUBJECT OF STATE TAXATION BY TAKING INTO ACCOUNT
GOVERNMENT PROPERTY WHICH IS ITSELF TAX-EXEMPT.  SEE, E.G., HOME
INSURANCE CO. V. NEW YORK, 134 U.S. 594; PLUMMER V. COLER, 178 U.S.
115; EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379; PACIFIC CO. V.
JOHNSON, 285 U.S. 480, 489-490. 

IN URGING THAT THE TAX ASSESSED HERE BE STRUCK DOWN THE APPELLANTS
RELY PRIMARILY ON UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, BUT
WE DO NOT THINK THAT CASE IS AT ALL CONTROLLING.  IN ALLEGHENY THE
COURT RULES INVALID A TAX WHICH THE STATE DID NOT CONTEND WAS "ANYTHING
OTHER THAN THE OLD AND WIDELY USED AD VALOREM GENERAL PROPERTY TAX" TO
THE EXTENT IT WAS LAID ON GOVERNMENT PROPERTY IN THE HANDS OF A PRIVATE
BAILEE.  REVIEWING ALL THE CIRCUMSTANCES THE COURT CONCLUDED THAT THE
TAX WAS SIMPLY AND FORTHRIGHTLY IMPOSED ON THE PROPERTY ITSELF, NOT ON
THE PRIVILEGE OF USING OR POSSESSING IT.  IN CAREFULLY RESERVING THE
QUESTION WHETHER THE BAILEE COULD BE TAXED FOR EXERCISING SUCH
PRIVILEGES, THE COURT STATED: 

"WHETHER SUCH A RIGHT OF POSSESSION AND USE IN VIEW OF ALL THE
CIRCUMSTANCES COULD BE TAXED BY APPROPRIATE PROCEEDINGS WE DO NOT
DECIDE. 

     *         *         *         *         * 

"ACTUAL POSSESSION AND CUSTODY OF GOVERNMENT PROPERTY NEARLY ALWAYS
ARE IN SOMEONE WHO IS NOT HIMSELF THE GOVERNMENT BUT ACTS IN ITS BEHALF
AND FOR ITS PURPOSES.  HE MAY BE AN OFFICER, AN AGENT, OR A
CONTRACTOR.  HIS PERSONAL ADVANTAGES FROM THE RELATIONSHIP BY WAY OF
SALARY, PROFIT, OR BENEFICIAL PERSONAL USE OF THE PROPERTY MAY BE TAXED
AS WE HAVE HELD."  322 U.S., AT 184, 186, 187. 

HERE WE HAVE A TAX WHICH IS IMPOSED ON A PARTY USING TAX-EXEMPT
PROPERTY FOR ITS OWN "BENEFICIAL PERSONAL USE" AND "ADVANTAGE."  (FN2) 

IT IS UNDOUBTEDLY TRUE, AS THE GOVERNMENT POINTS OUT, THAT IT WILL
NOT BE ABLE TO SECURE AS HIGH RENTALS IF LESSEES ARE TAXED FOR USING
ITS PROPERTY.  BUT AS THIS COURT HAS RULED IN JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, ALABAMA V. KING & BOOZER, 314 U.S. 1,
AND NUMEROUS OTHER CASES, (FN3) THE IMPOSITION OF AN INCREASED
FINANCIAL BURDEN ON THE GOVERNMENT DOES NOT, BY ITSELF, VITIATE, A
STATE TAX.  KING & BOOZER OFFERS A STRIKING EXAMPLE.  THERE A PRIVATE
PARTY, ACTING UNDER CONTRACT WITH THE UNITED STATES, PURCHASED
MATERIALS WHICH THE CONTRACT REQUIRED HIM TO TRANSFER TO THE
GOVERNMENT.  AT THE SAME TIME THE GOVERNMENT AGREED TO PAY HIS COSTS
PLUS A FIXED FEE SO A STATE EXCISE LEVIED ON HIS PURCHASE WAS PASSED
DIRECTLY AND COMPLETELY TO THE GOVERNMENT.  YET DESPITE THE IMMEDIATE
FINANCIAL BURDEN IMPOSED ON THE UNITED STATES, THIS COURT, WITHOUT
DISSENT, UPHELD THE TAX. 

WE ARE AWARE OF COURSE THAT THE GENERAL PRINCIPLES LAID DOWN IN
DRAVO, KING & BOOZER AND SUBSEQUENT CASES DO NOT RESOLVE ALL THE
DIFFICULTIES IN THE AREA OF INTERGOVERNMENTAL TAX IMMUNITY, BUT THEY
WERE ADOPTED BY THIS COURT, WITH THE FULL SUPPORT OF THE GOVERNMENT, AS
THE LEAST COMPLICATED, THE MOST WORKABLE AND THE PROPER STANDARDS FOR
DECISION IN THIS MUCH LITIGATED AND OFTEN CONFUSED FIELD AND WE ADHERE
TO THEM.  (FN4) 

IT STILL REMAINS TRUE, AS IT HAS FROM THE BEGINNING, THAT A TAX MAY
BE INVALID EVEN THOUGH IT DOES NOT FALL DIRECTLY ON THE UNITED STATES
IF IT OPERATES SO AS TO DISCRIMINATE AGAINST THE GOVERNMENT OR THOSE
WITH WHOM IT DEALS.  CF. M'CULLOCH V. MARYLAND, 4 WHEAT.  316.  BUT
HERE THE TAX APPLIES TO EVERY PRIVATE PARTY WHO USES EXEMPT PROPERTY IN
MICHIGAN IN CONNECTION WITH A BUSINESS CONDUCTED FOR PRIVATE GAIN. 
UNDER MICHIGAN LAW THIS MEANS PERSONS WHO USE PROPERTY OWNED BY THE
FEDERAL GOVERNMENT, THE STATE, ITS POLITICAL SUBDIVISIONS, CHURCHES,
CHARITABLE ORGANIZATIONS AND A GREAT HOST OF OTHER ENTITIES.  (FN5)
THE CLASS DEFINED IS NOT AN ARBITRARY OR INVIDIOUSLY DISCRIMINATORY
ONE.  AS SUGGESTED BEFORE THE LEGISLATURE APPARENTLY WAS TRYING TO
EQUATE THE TAX BURDEN IMPOSED ON PRIVATE ENTERPRISE USING EXEMPT
PROPERTY WITH THAT CARRIED BY SIMILAR BUSINESSES USING TAXED PROPERTY. 
THOSE USING EXEMPT PROPERTY ARE REQUIRED TO PAY NO GREATER TAX THAN
THAT PLACED ON PRIVATE OWNERS OR PASSED ON BY THEM TO THEIR BUSINESS
LESSEES.  IN THE ABSENCE OF SUCH EQUALIZATION THE LESSEES OF TAX-EXEMPT
PROPERTY MIGHT WELL BE GIVEN A DISTINCT ECONOMIC PREFERENCE OVER THEIR
NEIGHBORING COMPETITORS, AS WELL AS ESCAPING THEIR FAIR SHARE OF LOCAL
TAX RESPONSIBILITY.  CF. HENNEFORD V. SILAS MASON CO., 300 U.S. 577,
583-585.  NOR IS THERE ANY SHOWING THAT THE TAX IS IN FACT ADMINISTERED
TO DISCRIMINATE AGAINST THOSE USING FEDERAL PROPERTY.  TO THE CONTRARY
UNDISPUTED EVIDENCE INTRODUCED BY APPELLEES DEMONSTRATES THAT LESSESS
OF OTHER EXEMPT PROPERTY HAVE ALSO BEEN TAXED.  (FN6) 

TODAY THE UNITED STATES DOES BUSINESS WITH A VAST NUMBER OF PRIVATE
PARTIES.  IN THIS COURT THE TREND HAS BEEN TO REJECT IMMUNIZING THESE
PRIVATE PARTIES FROM NONDISCRIMINATORY STATE TAXES AS A MATTER OF
CONSTITUTIONAL LAW.  CF. PENN DAIRIES V. MILK CONTROL COMM'N, 318 U.S.
261, 270.  OF COURSE THIS IS NOT TO SAY THAT CONGRESS, ACTING WITHIN
THE PROPER SCOPE OF ITS POWER, CANNOT CONFER IMMUNITY BY STATUTE WHERE
IT DOES NOT EXIST CONSTITUTIONALLY.  WISE AND FLEXIBLE ADJUSTMENT OF
INTERGOVERNMENTAL TAX IMMUNITY CALLS FOR POLITICAL AND ECONOMIC
CONSIDERATIONS OF THE GREATEST DIFFICULTY AND DELICACY.  SUCH COMPLEX
PROBLEMS ARE ONES WHICH CONGRESS IS BEST QUALIFIED TO RESOLVE.  AS THE
GOVERNMENT POINTS OUT CONGRESS HAS ALREADY EXTENSIVELY LEGISLATED IN
THIS AREA BY PERMITTING STATES TO TAX WHAT WOULD HAVE OTHERWISE BEEN
IMMUNE.  TO HOLD THAT THE TAX IMPOSED HERE ON A PRIVATE BUSINESS
VIOLATES THE GOVERNMENT'S CONSTITUTIONAL TAX IMMUNITY WOULD IMPROPERLY
IMPAIR THE TAXING POWER OF THE STATE.  AFFIRMED. 

FN1  NOW COMPILED IN 6 MICH. STAT. ANN., 1950 (1957 CUM. SUPP.),
SECS.  7.7(5) AND (6).  IN FULL THE ACT READS: 

"AN ACT TO PROVIDE FOR THE TAXATION OF LESSEES AND USERS OF TAX
EXEMPT PROPERTY. 

     *    *         *         *         * 

"SEC. 1.  WHEN ANY REAL PROPERTY WHICH FOR ANY REASON IS EXEMPT FROM
TAXATION IS LEASED, LOANED OR OTHERWISE MADE AVAILABLE TO AND USED BY A
PRIVATE INDIVIDUAL, ASSOCIATION OR CORPORATION IN CONNECTION WITH A
BUSINESS CONDUCTED FOR PROFIT, EXCEPT WHERE THE USE IS BY WAY OF A
CONCESSION IN OR RELATIVE TO THE USE OF A PUBLIC AIRPORT, PARK, MARKET,
FAIR GROUND OR SIMILAR PROPERTY WHICH IS AVAILABLE TO THE USE OF THE
GENERAL PUBLIC, SHALL BE SUBJECT TO TAXATION IN THE SAME AMOUNT AND TO
THE SAME EXTENT AS THOUGH THE LESSEE OR USER WERE THE OWNER OF SUCH
PROPERTY:  PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT APPLY TO
FEDERAL PROPERTY FOR WHICH PAYMENTS ARE MADE IN LIEU OF TAXES IN
AMOUNTS EQUIVALENT TO TAXES WHICH MIGHT OTHERWISE BE LAWFULLY ASSESSED
OR PROPERTY OF ANY STATE-SUPPORTED EDUCATIONAL INSTITUTION. 

     *         *         *         *         * 

"SEC. 2.  TAXES SHALL BE ASSESSED TO SUCH LESSEES OR USERS OF REAL
PROPERTY AND COLLECTED IN THE SAME MANNER AS TAXES ASSESSED TO OWNERS
OF REAL PROPERTY, EXCEPT THAT SUCH TAXES SHALL NOT BECOME A LIEN
AGAINST THE PROPERTY.  WHEN DUE, SUCH TAXES SHALL CONSTITUTE A DEBT DUE
FROM THE LESSEE OR USER TO THE TOWNSHIP, CITY, VILLAGE, COUNTY AND
SCHOOL DISTRICT FOR WHICH THE TAXES WERE ASSESSED AND SHALL BE
RECOVERABLE BY DIRECT ACTION OF ASSUMPSIT." 

FN2  THE GOVERNMENT ALSO PLACES RELIANCE ON MACALLEN CO. V.
MASSACHUSETTS, 279 U.S. 620.  THE WEIGHT OF THAT CASE AS A PRECEDENT
WAS SUBSTANTIALLY IMPAIRED BY ITS NARROW DISTINCTION IN EDUCATIONAL
FILMS CORP. V. WARD, 282 U.S. 379, 392, AND THE REASONING OF THE COURT
IN PACIFIC CO. V. JOHNSON, 285 U.S. 480, 495.  LATER IN NEW YORK EX
REL. NORTHERN FINANCE CORP. V. LYNCH, 290 U.S. 601, A CASE WHICH SEEMS
INDISTINGUISHABLE FROM MACALLEN ON ITS FACTS, THE COURT IN A PER CURIAM
OPINION UPHELD THE SAME KIND OF STATE TAX WHICH IT HAD STRUCK DOWN IN
MACALLEN.    FN3  SEE, E.G., GRAVES V. NEW YORK EX REL. O'KEEFE, 306
U.S. 466, 485-486; HELVERING V. GERHARDT, 304 U.S. 405, 420-422;
HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376; METCALF & EDDY V.
MITCHELL, 269 U.S. 514. 

FN4  IN ITS BRIEF IN KING & BOOZER THE GOVERNMENT STRONGLY URGED THE
COURT TO ABANDON WHATEVER REMAINED OF THE "ECONOMIC BURDEN" TEST, WHICH
AT ONE TIME WAS USED TO RANGE FAR AFIELD IN STRIKING DOWN STATE TAXES,
BECAUSE THAT TEST WAS "ILLUSORY AND INCAPABLE OF CONSISTENT
APPLICATION."    FN5  IN SOMEWHAT GREATER DETAIL, MICHIGAN STATUTES
EXEMPT FROM REAL PROPERTY TAXES ALL PROPERTY BELONGING TO THE FEDERAL
GOVERNMENT, THE STATE, POLITICAL SUBDIVISIONS OF THE STATE, CHARITABLE
ORGANIZATIONS, EDUCATIONAL OR SCIENTIFIC INSTITUTIONS, FRATERNAL OR
SECRET SOCIETIES (IF USED FOR CHARITABLE PURPOSES), CHURCHES,
LIBRARIES, RELIGIOUS SOCIETIES, CEMETERIES, STATE OR COUNTY
AGRICULTURAL SOCIETIES, CERTAIN CORPORATIONS MAKING PAYMENTS TO THE
STATE IN LIEU OF TAXES, NONPROFIT TRUSTS (IF USED FOR HOSPITAL OR
PUBLIC HEALTH PURPOSES), BOY OR GIRL SCOUT ORGANIZATIONS (UP TO 160
ACRES), CERTAIN VETERANS' HOMES AND LAND DEDICATED TO PUBLIC USE.  SEE
6 MICH. STAT. ANN., 1950, SEC. 7.7. 

FN6  THE GOVERNMENT POINTS TO THE FACT THAT PUBLIC ACT 189 CREATES AN
EXCEPTION TO THE TAX ON USERS WHERE PAYMENTS ARE MADE BY THE UNITED
STATES "IN LIEU OF TAXES IN AMOUNTS EQUIVALENT TO TAXES WHICH MIGHT
OTHERWISE BE LAWFULLY ASSESSED" AS MANIFESTING A PURPOSE TO TAX
GOVERNMENT PROPERTY.  BUT THIS EXEMPTION, WHICH IF ANYTHING OPERATES IN
THE GOVERNMENT'S FAVOR, AVOIDS THE POSSIBILITY OF A DOUBLE CONTRIBUTION
TO THE REVENUES OF THE STATE WHERE PRIVATE PARTIES USE FEDERAL PROPERTY
FOR THEIR OWN COMMERCIAL PURPOSES.  MOREOVER, IT IS NOT AT ALL
INCONCEIVABLE THAT THE GOVERNMENT MIGHT, IN ONE WAY OR ANOTHER, PASS
THE ECONOMIC BURDEN OF SUCH IN-LIEU PAYMENTS TO THE TAXPAYER USING ITS
PROPERTY EVEN THOUGH HE WAS ALSO COMPELLED TO PAY THE TAX IMPOSED BY
PUBLIC ACT 189. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P. 495. 

FOR OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 505. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE BURTON JOINS,
DISSENTING. 

I RESPECTFULLY DISSENT.  UNDERSTANDING OF THE BASES OF MY CONVICTIONS
AND REASONS FOR DOING SO REQUIRES A RATHER FULL TREATMENT OF THE CASE. 

THE UNITED STATES OWNED AN INDUSTRIAL PLANT IN DETROIT WHICH IT HAD
LEASED, FOR A SHORT TERM, TO BORG-WARNER, AT A FIXED ANNUAL RENTAL, FOR
USE IN ITS PRIVATE BUSINESS.  THE LEASE PROVIDED THAT IF THE LESSEE WAS
REQUIRED TO PAY ANY TAXES UPON THE PROPERTY TO THE STATE OF MICHIGAN,
UNDER THE STATUTE QUOTED, INFRA, OR OTHERWISE, DURING THE TERM OF THE
LEASE, THE LESSEE MIGHT DEDUCT THE SAME FROM THE RENTS, BUT THE
GOVERNMENT RESERVED THE RIGHT TO CONTEST THE VALIDITY OF ANY SUCH
TAXES. 

THE STATE OF MICHIGAN HAD RECENTLY ENACTED A STATUTE, KNOWN AS PUBLIC
ACT 189 OF 1953 (6 MICH. STAT. ANN., 1957 CUM. SUPP., SEC. 7.7(5) AND
(6)) WHICH, IN PERTINENT PART, SAYS:

                      "TAXATION OF LESSEES AND USERS OF TAX-EXEMPT

                   REAL PROPERTY. 

"SECTION 1.  WHEN ANY REAL PROPERTY WHICH FOR ANY REASON IS EXEMPT
FROM TAXATION IS LEASED, LOANED OR OTHERWISE MADE AVAILABLE TO AND USED
BY A PRIVATE INDIVIDUAL, ASSOCIATION OR CORPORATION IN CONNECTION WITH
A BUSINESS CONDUCTED FOR PROFIT, EXCEPT WHERE THE USE IS BY WAY OF A
CONCESSION IN OR RELATIVE TO THE USE OF A PUBLIC  ...  PARK  ...  OR
SIMILAR PROPERTY WHICH IS AVAILABLE TO THE USE OF THE GENERAL PUBLIC,
SHALL BE SUBJECT TO TAXATION IN THE SAME AMOUNT AND TO THE SAME EXTENT
AS THOUGH THE LESSEE OR USER WERE THE OWNER OF SUCH PROPERTY:
PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT APPLY TO FEDERAL
PROPERTY FOR WHICH PAYMENTS ARE MADE IN LIEU OF TAXES IN AMOUNTS
EQUIVALENT TO TAXES WHICH MIGHT OTHERWISE BE LAWFULLY ASSESSED  ...  . 

"SEC. 2.  TAXES SHALL BE ASSESSED TO SUCH LESSEES OR USERS OF REAL
PROPERTY AND COLLECTED IN THE SAME MANNER AS TAXES ASSESSED TO OWNERS
OF REAL PROPERTY, EXCEPT THAT SUCH TAXES SHALL NOT BECOME A LIEN
AGAINST THE PROPERTY.  WHEN DUE, SUCH TAXES SHALL CONSTITUTE A DEBT DUE
FROM THE LESSEE OR USER TO THE TOWNSHIP, CITY, VILLAGE, COUNTY AND
SCHOOL DISTRICT FOR WHICH THE TAXES WERE ASSESSED AND SHALL BE
RECOVERABLE BY DIRECT ACTION OF ASSUMPSIT." 

ACTING UNDER THAT STATUTE, THE CITY OF DETROIT LEVIED A TAX AGAINST
THE LESSEE, COMPUTED ON THE ASSESSED VALUE OF THE GOVERNMENT'S
INDUSTRIAL PLANT AND CALCULATED IN THE SAME MANNER AND AT THE SAME RATE
APPLICABLE TO ALL REAL ESTATE IN MICHIGAN.  PROTEST WAS MADE WITHOUT
AVAIL AND, AFTER ADMINSITRATIVE REMEDIES WERE EXHAUSTED WITHOUT
SUCCESS, THE TAX WAS PAID, AND THE UNITED STATES AND THE LESSEE, BORG
WARNER, SUED FOR REFUND IN THE STATE COURT, CONTENDING THAT THE TAX WAS
REPUGNANT TO THE CONSTITUTION BECAUSE IT CONSTITUTED A TAX UPON
PROPERTY OWNED BY THE GOVERNMENT AND DISCRIMINATED AGAINST THE LESSEE. 
THE TRIAL COURT SUSTAINED THE TAX, AND THE SUPREME COURT OF MICHIGAN
AFFIRMED (345 MICH. 601, 77 N.W.2D 79), HOLDING THAT THE TAX WAS
NEITHER ON PROPERTY OWNED BY THE UNITED STATES NOR DISCRIMINATORY
AGAINST THE LESSEE, BUT WAS, INSTEAD, A NONDISCRIMINATORY TAX ON THE
LESSEE'S PRIVILEGE OF USING THE GOVERNMENT'S PROPERTY IN PRIVATE
BUSINESS FOR PROFIT.  THE CASE COMES HERE ON APPEAL. 

THE COURT TODAY AFFIRMS THE DECISION AND JUDGMENT OF THE MICHIGAN
COURTS, AND SUSTAINS THE TAX.  I BELIEVE THAT DECISION IS NOT ONLY
UNSOUND IN PRINCIPLE BUT IS ALSO OPPOSED TO THE PRECEDENTS, AND THAT
APPELLANTS ARE QUITE RIGHT IN BOTH OF THEIR CONTENTIONS.  TO ME, IT IS
EVIDENT THAT THIS TAX HAS BEEN LEVIED, IN MAJOR PART AT LEAST, DIRECTLY
(THOUGH, PERHAPS, INDIRECTLY IN FORM) UPON A PROPERTY INTEREST OF THE
GOVERNMENT AND IS, THEREFORE, CONSTITUTIONALLY INVALID UNDER M'CULLOCH
V. MARYLAND, 4 WHEAT.  316, AND THE MYRIAD OF UNIFORMLY CONFORMING
CASES DECIDED SINCE ITS RENDITION IN 1819. 

IN DETERMINING THE NATURE OF A TAX WE ARE NOT BOUND BY, NOR EVEN
PERMITTED SOLELY TO LOOK TO, LABELS AFFIXED BY THE STATE, BUT, RATHER,
AS POINTED OUT IN UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174,
184: 

"'WHERE A FEDERAL RIGHT IS CONCERNED WE ARE NOT BOUND BY THE
CHARACTERIZATION GIVEN TO A STATE TAX BY STATE COURTS OR LEGISLATURES,
OR RELIEVED BY IT FROM THE DUTY OF CONSIDERING THE REAL NATURE OF THE
TAX AND ITS EFFECT UPON THE FEDERAL RIGHT ASSERTED.'  CARPENTER V.
SHAW, 280 U.S. 363, 367-368." 

EXAMINATION OF THE NATURE OF THIS TAX, AND OF ITS EFFECT UPON THE
FEDERAL RIGHTS ASSERTED BY APPELLANTS, SHOWS THAT IT PURPORTS TO BE A
TAX UPON "REAL PROPERTY WHICH  ...  IS EXEMPT FROM TAXATION," IF IT IS
"MADE AVAILABLE TO AND USED BY A PRIVATE INDIVIDUAL  ...  OR
CORPORATION IN CONNECTION WITH A BUSINESS CONDUCTED FOR PROFIT,"
INCLUDING "FEDERAL PROPERTY FOR WHICH PAYMENTS HAVE NOT BEEN MADE IN
LIEU OF TAXES IN AMOUNTS EQUIVALENT TO GENERAL AD VALOREM TAXES WHICH
MIGHT OTHERWISE BE LAWFULLY ASSESSED" (SEC. 1), AND THE TAX IS TO BE
"ASSESSED TO SUCH LESSEES OR USERS ...  IN THE SAME MANNER AS TAXES ARE
ASSESSED TO OWNERS OF REAL PROPERTY," THOUGH THE TAX "SHALL NOT BECOME
A LIEN AGAINST THE PROPERTY," BUT IT "SHALL CONSTITUTE A DEBT DUE FROM
THE LESSEE OR USER."  SEC. 2. 

THUS, THE TAX, AS IT APPLIES TO THIS CASE, IS COMPUTED NOT UPON THE
VALUE OF THE LESSEE'S SHORT-TERM LEASEHOLD ESTATE IN - NOR, HENCE, UPON
THE VALUE OF ITS TERM RIGHT TO USE - THE FEDERAL PROPERTY, BUT, RATHER,
IS COMPUTED UPON THE ENTIRE VALUE OF THE WHOLE OF THE FEDERAL PROPERTY,
IN THE SAME MANNER AND AT THE SAME RATE AND AMOUNT, "AS THOUGH THE
LESSEE OR USER WERE THE OWNER OF SUCH PROPERTY" (SEC. 1), BUT - AND I
THINK THIS IS OF PARTICULAR SIGNIFICANCE - THE TAX IS NOT TO "APPLY TO
FEDERAL PROPERTY" IF THE GOVERNMENT WAIVES ITS SOVEREIGN IMMUNITY AND
PAYS GENERAL AD VALOREM TAXES ON THE PROPERTY, OR THE EQUIVALENT.  DOES
NOT THIS REALLY ADMIT THAT THE TAX, IN MAJOR PART AT LEAST, IS DIRECTLY
IMPOSED UPON THE GOVERNMENT'S PROPERTY INTERESTS?  THE FACT THAT THE
STATUTE DOES NOT CREATE A LIEN "ON GOVERNMENT PROPERTY ITSELF, WHICH
COULD NOT BE SUSTAINED IN ANY EVENT, HARDLY ESTABLISHES THAT IT IS NOT
BEING TAXED  ...  ."  UNITED STATES V. ALLEGHENY COUNTY, SUPRA, AT
187. 

DISREGARDING FORM AND LABELS, AND LOOKING TO SUBSTANCE, IT IS, I
THINK, CRYSTAL CLEAR THAT THIS IS A TRANSPARENT DIRECT IMPOSITION UPON
THE GOVERNMENT'S PROPERTY INTERESTS (AS DISTINGUISHED FROM THE LESSEE'S
LEASEHOLD ESTATE) IN THIS REAL ESTATE OF THE GENERAL AD VALOREM REAL
PROPERTY TAX COMMONLY ASSESSED ON, AND AGAINST THE OWNERS OF, ALL REAL
ESTATE IN MICHIGAN, BUT UNDER THE GUISE OF A TAX UPON THE LESSEE FOR
THE PRIVILEGE (AS CONSTRUED BY THE MAJORITY) - GRANTED BY THE FEDERAL
GOVERNMENT, NOT THE STATE - OF USING (THOUGH IT WILL BE NOTED, THE
STATUTE DOES NOT IN TERMS TAX "USE," BUT, RATHER, TAXES "REAL
PROPERTY"; SEE SEC. 1) THE GOVERNMENT'S PROPERTY, AND, THUS, THE
STATUTE SEEKS TO ACCOMPLISH BY INDIRECTION THAT WHICH THE STATE IS
CONSTITUTIONALLY PROHIBITED FROM DOING DIRECTLY.  SUCH ATTEMPTED
EVASION OF THE GOVERNMENT'S CONSTITUTIONAL IMMUNITY FROM STATE TAXATION
CANNOT LEGALLY BE PERMITTED TO SUCCEED.  AS SAID IN MILLER V.
MILWAUKEE, 272 U.S. 713, 715:  "IF THE AVOWED PURPOSE OR SELF-EVIDENT
OPERATION OF A STATE TAXING STATUTE IS TO FOLLOW THE BONDS OF THE
UNITED STATES AND TO MAKE UP FOR THE STATE'S INABILITY TO REACH THEM
DIRECTLY BY INDIRECTLY ACHIEVING THE SAME RESULT, THE STATUTE MUST FAIL
EVEN IF BUT FOR ITS PURPOSE OR SPECIAL OPERATION IT WOULD BE PERFECTLY
GOOD."  IN EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, 393, AFTER
QUOTING THE ABOVE LANGUAGE FROM THE MILLER CASE, THE COURT SAID:  "BUT,
AS THE COURT IN THAT CASE WAS CAREFUL TO POINT OUT, IN LANGUAGE LATER
QUOTED WITH APPROVAL IN MACALLEN CO. V. MASSACHUSETTS (279 U.S. 620,
631), 'A TAX VERY WELL MAY BE UPHELD AS AGAINST ANY CASUAL EFFECT IT
MAY HAVE UPON THE BONDS OF THE UNITED STATES WHEN PASSED WITH A
DIFFERENT INTENT AND NOT AIMED AT THEM  ...  .'"  HERE THE MICHIGAN
STATUTE PLAINLY SAYS THAT THE TAX SHALL "APPLY TO FEDERAL PROPERTY FOR
WHICH PAYMENTS ARE NOT MADE IN LIEU OF TAXES IN AMOUNTS EQUIVALENT TO
TAXES WHICH MIGHT OTHERWISE BE LAWFULLY ASSESSED" (SEC. 1), AND, HENCE,
IT CANNOT BE SAID THAT THIS TAX IS "CASUAL IN ITS EFFECT  ...  UPON THE
PROPERTY OF THE UNITED STATES"; AND IT MUST BE SAID THAT THE TAX IS
PLAINLY "AIMED AT IT."  EDUCATIONAL FILMS CORP. V. WARD, SUPRA, AT
393. 

THE MAJORITY RELY PRINCIPALLY UPON HENNEFORD V. SILAS MASON CO., 300
U.S. 577; ESSO STANDARD OIL CO. V. EVANS, 345 U.S. 495, AND, AS DOES
ALSO MR. JUSTICE HARLAN IN HIS SEPARATE OPINION, UPON CURRY V. UNITED
STATES, 314 U.S. 14, BUT, AS I READ THEM, THOSE CASES DO NOT AT ALL
SUPPORT THE COURT'S CONCLUSION.  IN HENNEFORD THIS COURT MERELY HELD
THAT A TAX IMPOSED BY A STATE UPON ITS CITIZEN FOR HIS USE WITHIN THE
STATE OF HIS OWN PROPERTY WHICH HE HAD PURCHASED IN ANOTHER STATE AND
IMPORTED IN INTERSTATE COMMERCE WAS NOT A PROHIBITED TAX ON SUCH
COMMERCE, WHICH HAD EARLIER ENDED.  IT DID NOT IN ANY WAY INVOLVE A TAX
UPON GOVERNMENT PROPERTY INTERESTS.  THE ESSO CASE SIMPLY UPHELD A
STATE PRIVILEGE TAX IMPOSED NOT UPON ANY PROPERTY INTEREST OF THE
GOVERNMENT BUT DIRECTLY UPON A STORER OF GASOLINE, ON A GALLONAGE
BASIS, FOR HIS PRIVILEGE OF CONDUCTING THAT BUSINESS WITHIN THE STATE. 
ONE OF ITS CUSTOMERS WAS THE GOVERNMENT WHICH HAD, BY CONTRACT, AGREED
TO REIMBURSE ESSO FOR ANY TAX IMPOSED UPON IT BY THE STATE IN
CONSEQUENCE OF HAVING STORED THE GOVERNMENT'S GASOLINE.  THUS THE TAX
WAS NOT IMPOSED BY THE STATE UPON THE GOVERNMENT'S PROPERTY INTERESTS
BUT UPON ESSO WHICH DID NOT SHARE THE GOVERNMENT'S IMMUNITY FROM STATE
TAXATION, AND THE OBLIGATION OF THE GOVERNMENT DERIVED NOT FROM THE
STATUTE BUT THROUGH OPERATION OF THE CONTRACT.  THE CURRY CASE MERELY
HELD THAT GOVERNMENT COST-PLUS CONTRACTORS WHO HAD IMPORTED INTO THE
STATE CERTAIN MATERIALS WHICH THEY USED IN THE PERFORMANCE OF THEIR
CONTRACT WERE NOT ENTITELD TO SHARE THE GOVERNMENT'S CONSTITUTIONAL
IMMUNITY FROM A STATE USE TAX, AND SAID:  "IF THE STATE LAW LAYS THE
TAX UPON THEM RATHER THAN THE GOVERNMENT WITH WHOM THEY ENTER INTO A
COST-PLUS CONTRACT LIKE THE PRESENT ONE, THEN IT AFFECTS THE GOVERNMENT
...  ONLY AS THE ECONOMIC BURDEN IS SHIFTED TO IT THROUGH OPERATION OF
THE CONTRACT."  314 U.S., AT 18.  HERE THE TAX IS IMPOSED BY THE
MICHIGAN STATUTE DIRECTLY UPON THE GOVERNMENT'S PROPERTY INTERESTS -
INCLUDING ITS RIGHT TO THE USE OF ITS PROPERTY - AND IT IS NOT SUFFERED
BY ANY VOLUNTARY ASSUMPTION OR "THROUGH OPERATION OF A CONTRACT." 
(FN1) 

IN UNITED STATES V. ALLEGHENY COUNTY, SUPRA, THIS COURT POINTED OUT
THAT "MESTA (A LESSEE OF GOVERNMENT CHATTELS) HAS SOME LEGAL AND
BENEFICIAL INTEREST IN THE GOVERNMENT'S PROPERTY.  IT IS A BAILEE FOR
MUTUAL BENEFIT."  (FN2)  THE COURT THEN PROCEEDED TO SAY: 

"WHETHER SUCH A RIGHT OF POSSESSION AND USE IN VIEW OF ALL THE
CIRCUMSTANCES COULD BE TAXED BY APPROPRIATE PROCEEDINGS WE DO NOT
DECIDE."  ID., AT 186. 

HOWEVER, THE COURT DID PROCEED TO DECIDE THAT THE GOVERNMENT'S
PROPERTY INTERESTS IN THE CHATTELS, DISTINGUISHED FROM THE BAILEE'S
INTEREST THEREIN, COULD NOT LEGALLY BE SUBJECTED TO ANY STATE TAX.  IT
SAID:  "  ...  THE STATE HAS MADE NO EFFORT TO SEGREGATE MESTA'S
INTEREST AND TAX IT.  THE FULL VALUE OF THE PROPERTY, INCLUDING THE
WHOLE OWNERSHIP INTEREST, AS WELL AS WHATEVER VALUE PROPER APPRAISAL
MIGHT ATTRIBUTE TO THE LEASEHOLD, WAS INCLUDED IN MESTA'S ASSESSMENT
...  .  WE THINK, HOWEVER, THAT THE GOVERNMENT'S PROPERTY INTERESTS ARE
NOT TAXABLE EITHER TO IT OR TO ITS BAILEE."  ID., AT 187.    HERE IT IS
UNDENIABLE THAT (1) THE GOVERNMENT OWNED THIS INDUSTRIAL PLANT, (2) THE
ONLY ELEMENT OF ECONOMIC VALUE IN ITS OWNERSHIP OF THE PLANT IS ITS
RIGHT TO USE IT.  THAT RIGHT OF USE WAS A GOVERNMENT PROPERTY INTEREST,
AND ANY STATE TAX ON THAT RIGHT OF USE IS A TAX ON AN INSTRUMENTALITY
OF THE UNITED STATES AND, HENCE, INVALID.  SEE M'CULLOCH V. MARYLAND,
SUPRA, AND ALLEGHENY, AT 186-189. 

BEFORE THE LEASE, ONLY ONE ESTATE EXISTED IN THE PLANT, NAMELY, THE
GOVERNMENT'S OWNERSHIP IN FEE, WHICH INCLUDED ITS INHERENT RIGHT TO
USE, AND TO LET THE USE OF, THAT PROPERTY.  THAT ESTATE WAS, AND
CONTINUED TO BE, A PROPERTY INTEREST OF THE GOVERNMENT, TO THE FRUITS
OF WHICH IT WAS AND IS EXCLUSIVELY ENTITLED; AND ITS RIGHT OF USE, SO
LET TO ITS LESSEE, IN NO WAY DERIVED FROM ANY PRIVILEGE GRANTED - OR
THAT COULD BE WITHHELD - BY THE STATE, BUT, RATHER, DERIVED SOLELY FROM
THE UNITED STATES, AND, THUS, WAS NOT A PRIVILEGE WHICH THE STATE DID
OR COULD GRANT OR WITHHOLD, NOR, HENCE, REGULATE OR TAX; BUT, ON THE
CONTRARY, IT REMAINED IMMUNE FROM STATE TAXATION, AS POINTED OUT IN
ALLEGHENY: 

"A STATE MAY TAX PERSONAL PROPERTY AND MIGHT WELL TAX IT TO ONE IN
WHOSE POSSESSION IT WAS FOUND, BUT IT COULD HARDLY TAX ONE OF ITS
CITIZENS BECAUSE OF PROPERTY OF THE UNITED STATES WHICH WAS IN HIS
POSSESSION AS  ...  AGENT, OR CONTRACTOR.  WE HOLD THAT GOVERNMENT
OWNED PROPERTY, TO THE FULL EXTENT OF THE GOVERNMENT'S INTEREST
THEREIN, IS IMMUNE FROM TAXATION, EITHER AS AGAINST THE GOVERNMENT
ITSELF OR AS AGAINST ONE WHO HOLDS IT AS A BAILEE."  ID., AT 188-189. 

BY THE LEASE, THE GOVERNMENT, IN EXERCISE OF ITS RIGHT TO USE, AND TO
LET THE USE OF, ITS PROPERTY, CARVED FROM ITS FEE A SUBSERVIENT
LEASEHOLD ESTATE AND VESTED THE SAME IN THE LESSEE.  THAT LEASEHOLD
ESTATE WAS PRIVATE LOCAL PROPERTY OF THE LESSEE AND, THEREFORE, WAS
SUBJECT TO STATE REGULATION, AND, HENCE, TO AD VALOREM OR PRIVILEGE OF
USE TAXATION BY THE STATE, IN SUCH MEASURE AS IS NOT UNEQUAL,
UNREASONABLE OR CONFISCATORY - ON THE BASIS OF THE VALUE OF THE
LEASEHOLD ESTATE BEING TAXED OR USED AS THE MEASURE OF THE TAX.  (FN3) 

HERE, HOWEVER, THE STATUTE DOES NOT PURPORT TO SEGREGATE THE VALUE OF
THE LEASEHOLD ESTATE FROM THE GOVERNMENT'S ESTATE IN FEE, SUBJECT TO
THE LEASE, IN THIS PROPERTY, BUT, RATHER, COMPUTES AND IMPOSES THE TAX
ON BOTH ESTATES "AS THOUGH THE LESSEE OR USER WERE THE OWNER OF SUCH
PROPERTY."  SEC. 1.  IT, THEREFORE, SEEMS QUITE PLAIN THAT THE STATUTE
IMPOSES THE TAX ON THE GOVERNMENT'S PROPERTY INTEREST, WHICH IS IMMUNE
FROM STATE TAXATION, AS WELL AS UPON THE LOCAL PROPERTY OF THE LESSEE
IN ITS LEASEHOLD ESTATE WHICH IS NOT EXEMPT FROM STATE TAXATION, AND
THUS LAYS A FORBIDDEN BURDEN UPON INSTRUMENTALITIES OF THE UNITED
STATES.  M'CULLOCH V. MARYLAND, 4 WHEAT.  316. 

FOR THESE REASONS, I WOULD REVERSE THE DECISION AND JUDGMENT OF THE
MICHIGAN COURT. 

FN1  IT IS IMMATERIAL TO THE QUESTION HERE THAT THE LEASE AUTHORIZED
THE LESSEE TO DEDUCT FROM THE RENTALS ANY TAXES IT MIGHT BE REQUIRED TO
PAY UNDER THIS STATUTE DURING THE TERM OF THE LEASE, BECAUSE THE DIRECT
THRUST OF THE TAX UPON THE GOVERNMENT'S RIGHT OF USE OF ITS PROPERTY,
SO LET TO THE LESSEE, ARISES FROM THE TERMS OF THE STATUTE
INDEPENDENTLY OF SUCH CONTRACTUAL ASSUMPTION. 

FN2  IT SEEMS QUITE CERTAIN THAT A "BAILEE" OF CHATTELS FOR MUTUAL
BENEFIT STANDS IN NO DIFFERENT POSITION OR RELATION TO THE GOVERNMENT
THAN A "LESSEE," AND IN FACT THE MESTA COMPANY HELD THE CHATTELS UNDER
A LEASE IN THAT CASE. 

FN3  THE MATTER IS SO STATED TO POINT UP WHAT SHOULD BE THE OBVIOUS
NECESSITY, IN LEVYING ANY TAX BASED ON OR MEASURED BY THE VALUE OF A
LIMITED ESTATE IN PROPERTY, OF FIRST IDENTIFYING, AND DETERMINING THE
NATURE AND EXTENT OF, THE ESTATE OR INTEREST OF THE TAXPAYER THEREIN,
WHICH, NATURALLY, MUST BE DONE BEFORE ANY VALUATION CAN PROPERLY BE
ASCRIBED THERETO, AND, HENCE, BEFORE IT CAN BE KNOWN WHETHER THE TAX IS
OR IS NOT EQUAL, REASONABLE, AND NONCONFISCATORY, AND, THEREFORE, MEETS
OR FAILS TO MEET STATE TESTS AND FOURTEENTH AMENDMENT DUE PROCESS. 
..END :

















UNITED STATES V. TOWNSHIP OF MUSKEGON 355 U.S. 484 


NO. 37.  ARGUED NOVEMBER 14, 1957 - DECIDED MARCH 3, 1958* - 346 MICH.
218, 77 N.W.2D 799, AFFIRMED. 

*TOGETHER WITH NO. 38, CONTINENTAL MOTORS CORP. V. TOWNSHIP OF
MUSKEGON ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


UNDER MICHIGAN PUBLIC ACT 189 OF 1953, THE TOWNSHIP OF MUSKEGON
ASSESSED AGAINST A PRIVATE CORPORATION ENGAGED IN BUSINESS FOR PROFIT
TAXES BASED ON THE VALUE OF REAL PROPERTY OWNED BY THE UNITED STATES
AND USED BY THE CORPORATION IN THE COURSE OF PERFORMING SEVERAL SUPPLY
CONTRACTS THE CORPORATION HAD WITH THE GOVERNMENT ON A COST-PLUS-FIXED
FEE BASIS.  THERE WAS NO LEASE AND NO RENT WAS CHARGED BY THE
GOVERNMENT; BUT THE CORPORATION AGREED NOT TO INCLUDE ANY PART OF THE
COST OF THE FACILITIES FURNISHED BY THE GOVERNMENT IN THE PRICE OF THE
GOODS SUPPLIED UNDER THE CONTRACTS.  HELD:  THIS TAX DOES NOT INVADE
THE CONSTITUTIONAL IMMUNITY OF FEDERAL PROPERTY FROM TAXATION BY THE
STATES.  UNITED STATES V. CITY OF DETROIT, ANTE, P. 466.  PP. 485-487. 

(A)  SINCE THE CORPORATION WAS USING THE PROPERTY IN CONNECTION WITH
ITS OWN COMMERCIAL ACTIVITIES, AND NOT AS A MERE AGENT OF THE
GOVERNMENT, A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT IT WAS
NOT FORMALLY DESIGNATED A "LESSEE."  P. 486. 

(B)  SINCE THE CORPORATION WAS ACTING AS A PRIVATE ENTERPRISE SELLING
GOODS TO THE GOVERNMENT, A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT
THAT IT WAS USING THE PROPERTY IN CARRYING OUT A CONTRACT WITH THE
GOVERNMENT.  PP. 486-487. 

UNITED STATES V. TOWNSHIP OF MUSKEGON ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AS THE GOVERNMENT POINTS OUT IN ITS JURISDICTIONAL STATEMENT "THIS
APPEAL PRESENTS PRECISELY THE SAME BASIC QUESTION" AS IS RAISED IN NO.
26, UNITED STATES V. CITY OF DETROIT, ANTE, P. 466, ALSO DECIDED
TODAY.  THAT QUESTION IS WHETHER PUBLIC ACT 189, OF 1953, OF THE STATE
OF MICHIGAN IS UNCONSTITUTIONAL AS APPLIED TO A CORPORATION USING
GOVERNMENT PROPERTY IN CONNECTION WITH A BUSINESS CONDUCTED FOR ITS OWN
PRIVATE GAIN. 

IN THIS CASE THE UNITED STATES OWNS A MANUFACTURING PLANT AT
MUSKEGON, MICHIGAN.  IN 1952 IT GRANTED CONTINENTAL MOTORS CORPORATION
THE RIGHT TO USE THIS PLANT IN THE COURSE OF PERFORMING SEVERAL SUPPLY
CONTRACTS CONTINENTAL HAD WITH THE GOVERNMENT.  NO RENT WAS CHARGED AS
SUCH BUT CONTINENTAL AGREED NOT TO INCLUDE ANY PART OF THE COST OF THE
FACILITIES FURNISHED BY THE GOVERNMENT IN THE PRICE OF THE GOODS
SUPPLIED UNDER THE CONTRACTS. 

ON JANUARY 1, 1954, CONTINENTAL WAS ASSESSED A TAX UNDER PUBLIC ACT
189.  AS IN NO. 26, THIS TAX WAS LEVIED BECAUSE OF CONTINENTAL'S USE OF
TAX-EXEMPT PROPERTY IN ITS PRIVATE BUSINESS AND WAS MEASURED BY THE
VALUE OF THE EXEMPT PROPERTY WHICH IT WAS THEN USING.  CONTINENTAL
REFUSED TO PAY THE TAX AND THIS SUIT WAS BROUGHT BY STATE AUTHORITIES
IN A STATE COURT TO RECOVER THE AMOUNT ASSESSED.  THE UNITED STATES
INTERVENED, CONTENDING THAT THE TAX WAS INVALID BECAUSE IT IMPOSED A
LEVY ON GOVERNMENT PROPERTY.  BUT THE LOWER COURT REJECTED THIS
CONTENTION AND ENTERED JUDGMENT FOR THE PLAINTIFFS.  THE MICHIGAN
SUPREME COURT AFFIRMED, 346 MICH. 218, 77 N.W.2D 799.  WE NOTED
PROBABLE JURISDICTION OF AN APPEAL FROM THIS DECISION BY BOTH
CONTINENTAL AND THE UNITED STATES, 352 U.S. 963, AND NOW AFFIRM THE
JUDGMENT BELOW ON THE BASIS OF OUR DECISION IN NO. 26. 

THERE ARE ONLY TWO FACTUAL DIFFERENCES BETWEEN THIS CASE AND NO. 26. 
FIRST, CONTINENTAL IS NOT USING THE PROPERTY UNDER A FORMAL LEASE BUT
UNDER A "PERMIT"; SECOND, CONTINENTAL IS USING THE PROPERTY IN THE
PERFORMANCE OF ITS CONTRACTS WITH THE GOVERNMENT.  WE DO NOT BELIEVE
THAT EITHER FACT COMPELS A DIFFERENT RESULT. 

CONSTITUTIONAL IMMUNITY FROM STATE TAXATION DOES NOT REST ON SUCH
INSUBSTANTIAL FORMALITIES AS WHETHER THE PARTY USING GOVERNMENT
PROPERTY IS FORMALLY DESIGNATED A "LESSEE."  OTHERWISE IMMUNITY COULD
BE CONFERRED BY A SIMPLE STROKE OF THE DRAFTSMAN'S PEN.  THE VITAL
THING UNDER THE MICHIGAN STATUTE, AND WE THINK PERMISSIBLY SO, IS THAT
CONTINENTAL WAS USING THE PROPERTY IN CONNECTION WITH ITS OWN
COMMERCIAL ACTIVITIES.  THE CASE MIGHT WELL BE DIFFERENT IF THE
GOVERNMENT HAD RESERVED SUCH CONTROL OVER THE ACTIVITIES AND FINANCIAL
GAIN OF CONTINENTAL THAT IT COULD PROPERLY BE CALLED A "SERVANT" OF THE
UNITED STATES IN AGENCY TERMS.  BUT HERE CONTINENTAL WAS NOT SO
ASSIMILATED BY THE GOVERNMENT AS TO BECOME ONE OF ITS CONSTITUENT
PARTS.  IT WAS FREE WITHIN BROAD LIMITS TO USE THE PROPERTY AS IT
THOUGHT ADVANTAGEOUS AND CONVENIENT IN PERFORMING ITS CONTRACTS AND
MAXIMIZING ITS PROFITS FROM THEM.   IF UNDER CERTAIN CONDITIONS THE
STATE CAN TAX CONTINENTAL FOR USE OF GOVERNMENT PROPERTY IN CONNECTION
WITH ITS BUSINESS CONDUCTED FOR PROFIT - AND AS SET FORTH IN NO. 26 WE
ARE OF THE OPINION THAT IT CAN - THE FACT THAT CONTINENTAL WAS CARRYING
OUT A CONTRACT WITH THE GOVERNMENT DOES NOT MATERIALLY ALTER THE CASE. 
CONTINENTAL WAS STILL ACTING AS A PRIVATE ENTERPRISE SELLING GOODS TO
THE UNITED STATES.  IN A CERTAIN LOOSE WAY IT MIGHT BE CALLED AN
"INSTRUMENTALITY" OF THE UNITED STATES, BUT NO MORE SO THAN ANY OTHER
PRIVATE PARTY SUPPLYING GOODS FOR HIS OWN GAIN TO THE GOVERNMENT.  IN A
NUMBER OF CASES THIS COURT HAS UPHELD STATE TAXES ON THE ACTIVITIES OF
CONTRACTORS PERFORMING SERVICES FOR THE UNITED STATES EVEN THOUGH THEY
WERE CLOSELY SUPERVISED IN PERFORMING THESE FUNCTIONS BY THE
GOVERNMENT.  SEE, E.G., JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134;
ALABAMA V. KING & BOOZER, 314 U.S. 1; CURRY V. UNITED STATES, 314 U.S.
14; WILSON V. COOK, 327 U.S. 474. 

THE CURRY CASE SEEMS SQUARELY IN POINT.  THERE A CONTRACTOR ACTING
PURSUANT TO A COST-PLUS CONTRACT WITH THE UNITED STATES PURCHASED
CERTAIN MATERIALS.  THESE MATERIALS WERE SHIPPED TO A GOVERNMENT
CONSTRUCTION PROJECT WHERE THEY WERE USED BY THE CONTRACTOR IN THE
PERFORMANCE OF THE CONTRACT.  BY AGREEMENT TITLE TO THE MATERIALS
PASSED TO THE GOVERNMENT AS SOON AS THEY WERE SHIPPED BY THE VENDOR. 
THE STATE IMPOSED A TAX ON THE CONTRACTOR, BASED ON THE VALUE OF THE
MATERIALS, FOR USING THEM AFTER THEY HAD BEEN DELIVERED TO THE WORK
SITE.  THIS COURT UNANIMOUSLY UPHELD THAT STATE USE TAX, ALTHOUGH IT
CLEARLY AMOUNTED TO A TAX ON THE USE OF GOVERNMENT PROPERTY IN
PERFORMING A GOVERNMENT CONTRACT.  AFFIRMED. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P. 495. 

FOR OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 505. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE BURTON JOINS,
DISSENTING. 

THOUGH THE TAX INVOLVED IN THESE APPEALS RESTS UPON THE SAME MICHIGAN
STATUTE AND GENERALLY THE SAME LEGAL PRINCIPLES AS NO. 26, UNITED
STATES V. CITY OF DETROIT, 355 U.S. 466, ALSO DECIDED TODAY, THE FACTS
ARE SUFFICIENTLY DIFFERENT TO RENDER THIS TAX EVEN MORE CLEARLY
UNCONSTITUTIONAL THAN THE ONE THERE SUSTAINED. 

HERE THE GOVERNMENT DID NOT EVEN LEASE NOR RENT ITS PLANT.  IT SIMPLY
ENTERED INTO A CONTRACT WITH CONTINENTAL PROVIDING THAT THE LATTER
WOULD PRODUCE CERTAIN MILITARY SUPPLIES AT A PRICE EQUAL TO ITS COST,
PLUS A FIXED FEE; THAT THE WORK WOULD BE DONE IN THE GOVERNMENT'S PLANT
WHICH WAS TO BE FURNISHED WITHOUT RENT (AND ALSO THAT THE GOVERNMENT
WOULD FURNISH CERTAIN OTHER FACILITIES, AND MIGHT FURNISH CERTAIN
MATERIALS, REQUIRED TO PRODUCE THE SUPPLIES) AND THAT CONTINENTAL WOULD
NOT INCLUDE IN ITS "COST" FOR THE SUPPLIES ANY CHARGE FOR THE PLANT AND
OTHER FACILITIES AND MATERIALS FURNISHED BY THE GOVERNMENT. 

CONTINENTAL, THUS, HAD NO LEASEHOLD ESTATE, TENANCY, OR OTHER
PROPERTY INTEREST IN THE PLANT; AND THE RIGHT TO USE THE PLANT BELONGED
TO AND WAS PROVIDED BY THE GOVERNMENT AS A PART OF THE FACILITIES
WHICH, UNDER THE CONTRACT, IT WAS TO FURNISH FOR PRODUCTION OF THE
SUPPLIES.  IT THUS SEEMS PLAIN TO US THAT THE GOVERNMENT ITSELF WAS
ACTUALLY USING ITS PLANT IN THE FULL AND ONLY SENSE THAT THE
"GOVERNMENT," BEING AN ABSTRACTION, CAN EVER USE ITS MILITARY PLANTS. 
UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, 187-188.  THEREFORE,
CONTINENTAL NOT ONLY HAD NO ESTATE IN THIS REAL ESTATE TO BE TAXED,
BUT, MOREOVER, IT HAD NO INDEPENDENT RIGHT OF USE OF THE GOVERNMENT'S
PLANT TO BE SUBJECTED TO A USE TAX.  WE THINK IT MUST FOLLOW, EVEN
UNDER THE MAJORITY'S INTERPRETATION OF THE LAW - WHICH WE BELIEVE TO BE
ERRONEOUS - THAT THE TAX HERE IMPOSED BY THE STATE, HOWEVER IT MAY BE
VIEWED, IS A DIRECT TAX AGAINST THE GOVERNMENT AND IS, HENCE, INVALID. 

FOR THESE REASONS AND ALSO THOSE STATED IN MY DISSENTING OPINION IN
NO. 26, AS WELL AS THOSE STATED IN MY DISSENTING OPINION IN NOS. 18 AND
36, CITY OF DETROIT V. MURRAY CORPORATION, 355 U.S. 489, ALSO DECIDED
TODAY, I DISSENT, AND WOULD REVERSE THE DECISION AND JUDGMENT BELOW. 
..END :






CITY OF DETROIT V. MURRAY CORPORATION OF AMERICAN 355 U.S. 489 


NO. 18.  ARGUED NOVEMBER 13-14, 1957 - DECIDED MARCH 3, 1958* - 234 F.2D
380, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 36, CITY OF DETROIT ET AL. V. MURRAY CORPORATION
OF AMERICA ET AL., ON CERTIORARI TO THE SAME COURT. 


MICHIGAN MUNICIPALITIES ASSESSED A TAX AGAINST A SUBCONTRACTOR UNDER A
PRIME CONTRACT BETWEEN THE UNITED STATES AND TWO OTHER PRIVATE
CORPORATIONS FOR THE MANUFACTURE OF AIRPLANES AND AIRPLANE PARTS.  THE
TAX WAS BASED IN PART ON THE VALUE OF MATERIALS AND WORK IN PROCESS
ACTUALLY IN THE POSSESSION OF THE SUBCONTRACTOR BUT LEGAL TITLE TO
WHICH HAD PASSED TO THE UNITED STATES UNDER THE TERMS OF THE
SUBCONTRACT UPON THE MAKING OF PARTIAL PAYMENTS THEREFOR.  HELD:  THIS
TAX DOES NOT INFRINGE THE FEDERAL GOVERNMENT'S CONSTITUTIONAL IMMUNITY
FROM STATE TAXATION OR DISCRIMINATE AGAINST THE GOVERNMENT, ITS
PROPERTY OR THOSE WITH WHOM IT DOES BUSINESS.  UNITED STATES V. CITY OF
DETROIT, ANTE, P. 466; UNITED STATES V. TOWNSHIP OF MUSKEGON, ANTE, P.
484.  PP. 490-495. 

(A)  AS APPLIED, THESE TAXES WERE NOT LEVIED AGAINST THE UNITED
STATES OR ITS PROPERTY BUT WERE LEVIED ON A PRIVATE PARTY POSSESSING
GOVERNMENT PROPERTY WHICH IT WAS USING OR POSSESSING IN THE COURSE OF
ITS OWN BUSINESS.  PP. 492-493. 

(B)  SO FAR AS CONSTITUTIONAL TAX IMMUNITY IS CONCERNED, THERE IS NO
ESSENTIAL DIFFERENCE BETWEEN TAXING A PRIVATE PARTY FOR USING PROPERTY
HE POSSESSES AND TAXING HIM FOR POSSESSING PROPERTY HE USES WHEN IN
BOTH INSTANCES HE USES THE PROPERTY FOR HIS OWN PRIVATE ENDS.  P. 493. 

(C)  THE PARTICULAR STATE TAXING STATUTES INVOLVED HERE DO NOT
EXPRESSLY STATE THAT THE PERSON IN POSSESSION IS TAXED "FOR THE
PRIVILEGE OF USING OR POSSESSING" PERSONAL PROPERTY; BUT TO STRIKE DOWN
A TAX ON THE POSSESSOR BECAUSE OF SUCH VERBAL OMISSION WOULD ONLY PROVE
A VICTORY FOR EMPTY FORMALISMS.  P. 493. 

(D)  THE GOVERNMENT EVENTUALLY WILL FEEL THE FINANCIAL BURDEN OF AT
LEAST SOME OF THIS TAX; BUT THE IMPOSITION OF AN INCREASED FINANCIAL
BURDEN ON THE GOVERNMENT DOES NOT BY ITSELF INVALIDATE A STATE TAX.  P.
494. 

(E)  UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, DISTINGUISHED. 
PP. 494-495. 

(F)  THIS TAX INVOLVES NO DISCRIMINATION AGAINST THE FEDERAL
GOVERNMENT, ITS PROPERTY OR THOSE WITH WHOM IT DOES BUSINESS, NO
CRIPPLING OBSTRUCTION OF ANY OF ITS FUNCTIONS, NO SINISTER EFFORT TO
HAMSTRING ITS POWER AND NOT EVEN THE SLIGHTEST INTERFERENCE WITH ITS
PROPERTY.  P. 495. 

CITY OF DETROIT ET AL. V. MURRAY CORPORATION OF AMERICA ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS THE THIRD IN A SERIES OF CASES FROM THE STATE OF MICHIGAN
DECIDED TODAY INVOLVING A CLAIM OF CONSTITUTIONAL TAX IMMUNITY. 

IN 1952 MURRAY CORPORATION WAS ACTING AS A SUBCONTRACTOR UNDER A
PRIME CONTRACT FOR THE MANUFACTURE OF AIRPLANE PARTS BETWEEN TWO OTHER
PRIVATE COMPANIES AND THE UNITED STATES.  FROM TIME TO TIME MURRAY
RECEIVED PARTIAL PAYMENTS FROM THE TWO PRIME CONTRACTORS AS IT
PERFORMED ITS OBLIGATIONS UNDER THE SUBCONTRACT.  BY AGREEMENT, TITLE
TO ALL PARTS, MATERIALS AND WORK IN PROCESS ACQUIRED BY MURRAY IN
PERFORMANCE OF THE SUBCONTRACT VESTED IN THE UNITED STATES UPON ANY
SUCH PARTIAL PAYMENT, EVEN THOUGH MURRAY RETAINED POSSESSION. 

ON JANUARY 1, 1952, THE CITY OF DETROIT AND THE COUNTY OF WAYNE,
MICHIGAN, EACH ASSESSED A TAX AGAINST MURRAY WHICH IN PART WAS BASED ON
THE VALUE OF MATERIALS AND WORK IN PROCESS IN ITS POSSESSION TO WHICH
THE UNITED STATES HELD LEGAL TITLE UNDER THE TITLE-VESTING PROVISIONS
OF THE SUBCONTRACT.  (FN1)  MURRAY PAID THIS PART OF EACH TAX UNDER
PROTEST AND THEN SUED IN A FEDERAL DISTRICT COURT FOR A REFUND FROM THE
CITY AND COUNTY.  IT CONTENDED THAT FULL TITLE TO THE PROPERTY WAS IN
THE UNITED STATES AND THAT THE TAXES INFRINGED THE FEDERAL GOVERNMENT'S
IMMUNITY FROM STATE TAXATION TO THE EXTENT THEY WERE BASED ON SUCH
PROPERTY.  THE GOVERNMENT INTERVENED ON MURRAY'S BEHALF.  ON MOTION FOR
SUMMARY JUDGMENT THE DISTRICT COURT ENTERED JUDGMENT FOR MURRAY AND THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED.  234 F.2D 380.  FROM
THIS DECISION THE CITY AND COUNTY BOTH APPEALED AND PETITIONED FOR
CERTIORARI.  WE GRANTED CERTIORARI AND POSTPONED THE QUESTION OF
JURISDICTION ON APPEAL TO THE HEARING ON THE MERITS.  352 U.S. 960,
963.  THE APPEAL WAS PROPER.  28 U.S.C. SEC. 1254(2). 

WE BELIEVE THAT THIS CASE IS ALSO CONTROLLED BY THE PRINCIPLES
EXPRESSED IN OUR OPINIONS IN NOS. 26 AND 37, ANTE, PP. 466, 484, AND
THAT THE TAXES CHALLENGED HERE DO NOT VIOLATE THE CONSTITUTION.  (FN2)
THESE TAXES WERE NOT LEVIED DIRECTLY AGAINST THE UNITED STATES OR ITS
PROPERTY.  TO THE CONTRARY THEY WERE IMPOSED ON MURRAY, A PRIVATE
CORPORATION, AND THERE WAS NO EFFORT TO HOLD THE UNITED STATES OR ITS
PROPERTY ACCOUNTABLE.  IN FACT MICHIGAN EXPRESSLY EXEMPTS FROM TAXATION
ALL PUBLIC PROPERTY BELONGING TO THE UNITED STATES, 6 MICH. STAT. ANN.,
1950, SEC. 7.7, AND THESE TAXES WERE ASSESSED FROM THE BEGINNING
"SUBJECT TO PRIOR RIGHTS OF THE FEDERAL GOVERNMENT."  CF. S.R.A. V.
MINNESOTA, 327 U.S. 558, 559, 561; CITY OF NEW BRUNSWICK V. UNITED
STATES, 276 U.S. 547. 

THE TAXES IMPOSED ON MURRAY WERE STYLED A PERSONAL PROPERTY TAX BY
THE MICHIGAN STATUTES AND IT RELIES UPON THIS TO SUPPORT ITS CONTENTION
THAT THEY WERE ACTUALLY LAID AGAINST GOVERNMENT PROPERTY.   HOWEVER IN
PASSING ON THE CONSTITUTIONALITY OF A STATE TAX "WE ARE CONCERNED ONLY
WITH ITS PRACTICAL OPERATION, NOT ITS DEFINITION OR THE PRECISE FORM OF
DESCRIPTIVE WORDS WHICH MAY BE APPLIED TO IT."  LAWRENCE V. STATE TAX
COMMISSION, 286 U.S. 276, 280.  CONSEQUENTLY IN DETERMINING WHETHER
THESE TAXES VIOLATE THE GOVERNMENT'S CONSTITUTIONAL IMMUNITY WE MUST
LOOK THROUGH FORM AND BEHIND LABELS TO SUBSTANCE.  THIS IS AT LEAST AS
TRUE TO UPHOLD A STATE TAX AS TO STRIKE ONE DOWN.  CF. WISCONSIN V.
J.C. PENNEY CO., 311 U.S. 435, 443-445; CAPITOL GREYHOUND LINES V.
BRICE, 339 U.S. 542.  DUE REGARD FOR THE STATE'S POWER TO TAX REQUIRES
NO LESS.  AS APPLIED - AND OF COURSE THAT IS THE WAY THEY MUST BE
JUDGED - THE TAXES INVOLVED HERE IMPOSED A LEVY ON A PRIVATE PARTY
POSSESSING GOVERNMENT PROPERTY WHICH IT WAS USING OR PROCESSING IN THE
COURSE OF ITS OWN BUSINESS.  IT IS NOT DISPUTED THAT MICHIGAN LAW
AUTHORIZES THE TAXATION OF THE PARTY IN POSSESSION UNDER SUCH
CIRCUMSTANCES.  CF. DETROIT SHIPBUILDING CO. V. DETROIT, 228 MICH. 145,
199 N.W. 645; CITY OF DETROIT V. GRAY, 314 MICH. 516, 22 N.W.2D 771. 

IN THEIR PRACTICAL OPERATION AND EFFECT THE TAXES IN QUESTION ARE
IDENTICAL TO THOSE WHICH WE UPHELD IN NOS. 26 AND 37 ON PERSONS USING
EXEMPT REAL PROPERTY.  WE SEE NO ESSENTIAL DIFFERENCE SO FAR AS
CONSTITUTIONAL TAX IMMUNITY IS CONCERNED BETWEEN TAXING A PERSON FOR
USING PROPERTY HE POSSESSES AND TAXING HIM FOR POSSESSING PROPERTY HE
USES WHEN IN BOTH INSTANCES HE USES THE PROPERTY FOR HIS OWN PRIVATE
ENDS.  NOR HAVE WE BEEN POINTED TO ANYTHING ELSE WHICH WOULD BAR A
STATE FROM TAXING POSSESSION IN SUCH CIRCUMSTANCES.  CF. CARSTAIRS V.
COCHRAN, 193 U.S. 10.  LAWFUL POSSESSION OF PROPERTY IS A VALUABLE
RIGHT WHEN THE POSSESSOR CAN USE IT FOR HIS OWN PERSONAL BENEFIT. 

IT IS TRUE THAT THE PARTICULAR MICHIGAN TAXING STATUTES INVOLVED HERE
DO NOT EXPRESSLY STATE THAT THE PERSON IN POSSESSION IS TAXED "FOR THE
PRIVILEGE OF USING OR POSSESSING" PERSONAL PROPERTY, BUT TO STRIKE DOWN
A TAX ON THE POSSESSOR BECAUSE OF SUCH VERBAL OMISSION WOULD ONLY PROVE
A VICTORY FOR EMPTY FORMALISMS.  AND EMPTY FORMALISMS ARE TOO SHADOWY A
BASIS FOR INVALIDATING STATE TAX LAWS.  CF. HENNEFORD V. SILAS MASON
CO., 300 U.S. 577, 582.  IN THE CIRCUMSTANCES OF THIS CASE THE STATE
COULD OBVIATE SUCH GROUNDS FOR INVALIDITY BY MERELY ADDING A FEW WORDS
TO ITS STATUTES.  YET THEIR OPERATION AND PRACTICAL EFFECT WOULD REMAIN
PRECISELY THE SAME. 

THERE IS NO CLAIM THAT THE CHALLENGED TAXES DISCRIMINATE AGAINST
PERSONS HOLDING GOVERNMENT PROPERTY.  TO THE CONTRARY THE TAX IS A
GENERAL TAX WHICH APPLIES AND HAS BEEN APPLIED THROUGHOUT THE STATE. 
IF ANYTHING THE ECONOMIC BURDEN ON THE UNITED STATES IS MORE REMOTE AND
LESS CERTAIN THAN IN OTHER CASES WEHRE THIS COURT HAS UPHELD TAXES ON
PRIVATE PARTIES.  OF COURSE THE GOVERNMENT WILL EVENTUALLY FEEL THE
FINANCIAL BURDEN OF AT LEAST SOME OF THE TAX BUT THE ONE PRINCIPLE IN
THIS AREA WHICH HAS HERETOFORE BEEN CLEARLY SETTLED IS THAT THE
IMPOSITION OF AN INCREASED FINANCIAL BURDEN ON THE GOVERNMENT DOES NOT
BY ITSELF INVALIDATE A STATE TAX. 

THE RESPONDENTS RELY HEAVILY ON UNITED STATES V. ALLEGHENY COUNTY,
322 U.S. 174.  PETITIONERS ON THE OTHER HAND CONTEND THAT THE DECISION
IN ALLEGHENY IS INCONSISTENT WITH THE GENERAL TREND OF OUR DECISIONS IN
THIS FIELD, THAT IT HAS ALREADY BEEN DISTINGUISHED TO THE POINT WHERE
IT RETAINS NO MEANINGFUL VITALITY AND THAT IT IS ERRONEOUS.  HOWEVER
THAT MAY BE, WE DO NOT THINK THAT CASE IS CONTROLLING, ESSENTIALLY FOR
THE REASONS SET FORTH IN UNITED STATES V. CITY OF DETROIT, ANTE, P.
466.  IN ALLEGHENY THE COURT EMPHASIZED THAT THE TAX AGAINST MESTA
MACHINE COMPANY WAS, IN ITS VIEW, A GENERAL PROPERTY TAX LAID ON
GOVERNMENT PROPERTY AS SUCH.  THE COURT POINTED OUT THAT THE STATE HAD
"MADE NO EFFOR TO SEGREGATE MESTA'S INTEREST AND TAX IT."  THE QUESTION
WAS EXPRESSLY RESERVED WHETHER THE STATE COULD TAX A PERSON POSSESSING
GOVERNMENT PROPERTY FOR THE POSSESSION AND USE OF SUCH PROPERTY IN
CONNECTION WITH HIS OWN PROFIT-MAKING ACTIVITIES.  HERE, HOWEVER, STATE
LAW SPECIFICALLY AUTHORIZES ASSESSMENT AGAINST THE PERSON IN
POSSESSION.  AND THE TAXING AUTHORITIES WERE CAREFUL NOT TO ATTEMPT TO
TAX THE GOVERNMENT'S INTEREST IN THE PROPERTY. 

IN ALL IMPORTANT PARTICULARS THE TAXES IMPOSED HERE ARE VERY SIMILAR
TO THAT UPHELD IN ESSO STANDARD OIL CO. V. EVANS, 345 U.S. 495, ON THE
STORAGE OF GASOLINE FOR THE UNITED STATES.  A TAX ON STORAGE IS NOT
INTRINSICALLY DIFFERENT FROM A TAX ON POSSESSION, AT LEAST WHERE IN
BOTH INSTANCES THE PRIVATE PARTY IS HOLDING THE PROPERTY FOR HIS OWN
GAIN.  THE TAX IN ESSO WAS MEASURED BY THE QUANTITY OF GOVERNMENT
GASOLINE STORED WHILE THE TAXES HERE ARE MEASURED BY THE VALUE OF
GOVERNMENT PROPERTY POSSESSED BUT SUCH TECHNICAL DISTINCTION IS OF NO
SIGNIFICANCE IN DETERMINING WHETHER THE CONSTITUTION BARS THIS TAX AND
IS COMPLETELY UNRELATED TO ANY RATIONAL BASIS FOR GOVERNMENTAL TAX
IMMUNITY. 

WE FIND NOTHING IN THE CONSTITUTION WHICH COMPELS US TO STRIKE DOWN
THESE STATE TAXES.  THERE WAS NO DISCRIMINATION AGAINST THE FEDERAL
GOVERNMENT, ITS PROPERTY OR THOSE WITH WHOM IT DOES BUSINESS.  THERE
WAS NO CRIPPLING OBSTRUCTION OF ANY OF THE GOVERNMENT'S FUNCTIONS, NO
SINISTER EFFORT TO HAMSTRING ITS POWER, NOT EVEN THE SLIGHTEST
INTERFERENCE WITH ITS PROPERTY.  CF. M'CULLOCH V. MARYLAND, 4 WHEAT. 
316.  IN SUCH CIRCUMSTANCES THE CONGRESS IS THE PROPER AGENCY, AS WE
POINTED OUT IN UNITED STATES V. CITY OF DETROIT, TO MAKE THE DIFFICULT
POLICY DECISIONS NECESSARILY INVOLVED IN DETERMINING WHETHER AND TO
WHAT EXTENT PRIVATE PARTIES WHO DO BUSINESS WITH THE GOVERNMENT SHOULD
BE GIVEN IMMUNITY FROM STATE TAXES. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
IT IS SO ORDERED. 

FN1  THE RELEVANT STATUTORY PROVISIONS ARE SET FORTH IN FULL IN 6
MICH. STAT. ANN., 1950, SECS. 7.1, 7.10, 7.81, AND TIT. VI, C. II, SEC.
1, AND TIT. VI, C. IV, SECS. 1, 7, 26, 27, OF THE CHARTER OF THE CITY
OF DETROIT.  THEY PROVIDE IN PART THAT "THE OWNERS OR PERSONS IN
POSSESSION OF ANY PERSONAL PROPERTY SHALL PAY ALL TAXES ASSESSED
THEREON  ...  .  IN CASE ANY PERSON BY AGREEMENT OR OTHERWISE OUGHT TO
PAY SUCH TAX, OR ANY PART THEREOF, THE PERSON IN POSSESSION WHO SHALL
PAY THE SAME MAY RECOVER THE AMOUNT FROM THE PERSON WHO OUGHT TO HAVE
PAID THE SAME  ...  ." 

FN2  FOR PURPOSES OF THIS CASE WE ASSUME THAT THE UNITED STATES HAD
FULL TITLE TO THE PROPERTY NOT JUST A BARE SECURITY INTEREST.  BUT CF.
S.R.A. V. MINNESOTA, 327 U.S. 558, AFFIRMING 213 MINN. 487, 7 N.W.2D
484, AND 219 MINN. 493, 18 N.W.2D 442; LAND O'LAKES DAIRY CO. V. WADENA
COUNTY, 338 U.S. 897, AFFIRMING 229 MINN. 263, 39 N.W.2D 164; OFFUTT
HOUSING CO. V. SARPY COUNTY, 351 U.S. 253. 

OPINION OF MR. JUSTICE FRANKFURTER.* 

*NOTE:  THIS OPINION APPLIES ALSO TO NO. 26, UNITED STATES V. CITY OF
DETROIT, ANTE, P. 466, AND NO. 37, UNITED STATES V. TOWNSHIP OF
MUSKEGON, ANTE, P. 484. 

ADJUSTMENT OF THE INTERPENETRATING FACTORS INVOLVED IN THE NATION
STATE RELATION OF OUR FEDERAL SYSTEM, INSOFAR AS THEY ARE AMENABLE TO
ADJUDICATION, IS A SUBTLE AND COMPLICATED PROCESS.  IT PRECLUDES EASY
APPLICATION EVEN OF ACCEPTED LEGAL FORMULAS.  PARTICULARLY IS THIS TRUE
WHEN THE TAXING POWER OF THE STATES IS ASSERTED AGAINST CLAIMS OF
INTRUSION INTO AREAS RESERVED TO THE NATION.  IN THIS DOMAIN IT IS
ASKING TOO MUCH FOR RULES OF CERTAINTY AND SIMPLICITY IN APPLICATION
THAT ARE HARDLY TO BE FOUND IN ANY LIVE BRANCH OF THE LAW.  EVEN THE
RULE AGAINST PERPETUITIES HAS ONLY PRECARIOUS CERTAINTY.  THE NECESSITY
FOR JUDICIAL ACCOMMODATION BETWEEN THE INTERSECTING INTERESTS OF THE
STATES' POWER TO TAX AND THE CONCERNS OF THE NATION IN CARRYING ON ITS
GOVERNMENT PRESENTS PROBLEMS SOLUTIONS FOR WHICH CANNOT BE SOUGHT BY A
FORMULA ASSURING A BRIGHT, STRAIGHT LINE OF DECISIONS.  ACCORDINGLY, WE
HAVE BEEN ADMONISHED IN THE LEADING MODERN CASE DEALING WITH THESE
PROBLEMS THAT THEY REQUIRE "THE OBSERVING OF CLOSE DISTINCTIONS IN
ORDER TO MAINTAIN THE ESSENTIAL FREEDOM OF GOVERNMENT IN PERFORMING ITS
FUNCTIONS, WITHOUT UNDULY LIMITING THE TAXING POWER WHICH IS EQUALLY
ESSENTIAL TO BOTH NATION AND STATE UNDER OUR DUAL SYSTEM."  JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 134, 150. 

THE DIVERSITY OF VIEWS EXPRESSED IN THESE CASES, EVEN WHEN THERE IS
CONCURRENCE IN RESULT, SUGGESTS THE DESIRABILITY OF RECALLING, TO USE
AN OLD-FASHIONED PHRASE, "FIRST PRINCIPLES."  AFTER ALL, WE ARE DEALING
WITH PROBLEMS THAT HAVE, HOWSOEVER THEY MAY HAVE APPEARED IN PARTICULAR
SITUATIONS, AN UNBROKEN HISTORY OF NEARLY A CENTURY AND A HALF. 
TEMERARIOUS AS THE CLAIM MAY APPEAR, THERE IS A RESIDUUM OF CONTINUITY
IN THE RECONCILIATION THAT THE NUMEROUS CASES SINCE M'CULLOCH V.
MARYLAND, 4 WHEAT.  316 (1819), HAVE MADE BETWEEN THE POWER OF THE
STATES TO TAX AND THE RESTRICTION AGAINST LAYING A TAX UPON "THE
GOVERNMENT, ITS PROPERTY OR OFFICERS."  JAMES V. DRAVO CONTRACTING CO.,
SUPRA, AT 149.  THE GOVERNING PRINCIPLES, AS CHIEF JUSTICE MARSHALL
HIMSELF FORMULATED THEM, BEAR QUOTATION: 

"'THAT ALL SUBJECTS TO WHICH THE SOVEREIGN POWER OF A STATE EXTENDS,
ARE OBJECTS OF TAXATION; BUT THOSE OVER WHICH IT DOES NOT EXTEND ARE,
UPON THE SOUNDEST PRINCIPLES, EXEMPT FROM TAXATION.' 

"'THAT THE SOVEREIGNTY OF A STATE EXTENDS TO EVERYTHING WHICH EXISTS
BY ITS OWN AUTHORITY, OR IS INTRODUCED BY ITS PERMISSION; BUT NOT TO
THOSE MEANS WHICH ARE EMPLOYED BY CONGRESS TO CARRY INTO EXECUTION
POWERS CONFERRED ON THAT BODY BY THE PEOPLE OF THE UNITED STATES.' 

"'THAT THE ATTEMPT TO USE THE POWER OF TAXATION ON THE MEANS EMPLOYED
BY THE GOVERNMENT OF THE UNION IN PURSUANCE OF THE CONSTITUTION, IS
ITSELF AN ABUSE, BECAUSE IT IS THE USURPATION OF A POWER WHICH THE
PEOPLE OF A SINGLE STATE CANNOT GIVE.' 

"'THAT THE STATES HAVE NO POWER BY TAXATION, OR OTHERWISE, TO RETARD,
IMPEDE, BURDEN, OR IN ANY MANNER CONTROL THE OPERATION OF THE
CONSTITUTIONAL LAWS ENACTED BY CONGRESS, TO CARRY INTO EXECUTION THE
POWERS VESTED IN THE GENERAL GOVERNMENT.'"  WESTON V. CITY COUNCIL OF
CHARLESTON, 2 PET. 449, 467, AS QUOTED BY MR. JUSTICE BRADLEY IN
RAILROAD CO. V. PENISTON, 18 WALL.  5, 38-39 (DISSENTING OPINION). 
NO LESS HELPFUL IN GIVING DIRECTIONS FOR THE PATH OF SOLUTION TO OUR
IMMEDIATE PROBLEMS ARE THE COMMENTS ON THESE PRINCIPLES BY MR. JUSTICE
BRADLEY, WHOSE POWERS OF PENETRATING ANALYSIS, PARTICULARLY IN THIS
FIELD, WERE IN MY VIEW SECOND TO NONE. 

"WHILST NO ONE DISPUTES THE GENERAL POWER OF TAXATION IN THE STATES,
WHICH IS SO ELABORATELY SET FORTH IN THE OPINION OF THE MAJORITY, IT
MUST BE CONCEDED THAT THERE ARE LIMITS TO THAT POWER.  THE STATES
CANNOT TAX THE POWERS, THE OPERATIONS, OR THE PROPERTY OF THE UNITED
STATES, NOR THE MEANS WHICH IT EMPLOYS TO CARRY ITS POWERS INTO
EXECUTION.  THE GOVERNMENT OF THE UNITED STATES, WITHIN THE SCOPE OF
ITS POWERS, IS SUPREME, AND CANNOT BE INTERFERED WITH OR IMPEDED IN
THEIR EXERCISE. 

"THE CASE DIFFERS TOTO COELO FROM THAT WHEREIN THE GOVERNMENT ENTERS
INTO A CONTRACT WITH AN INDIVIDUAL OR CORPORATION TO PERFORM SERVICES
NECESSARY FOR CARRYING ON THE FUNCTIONS OF GOVERNMENT - AS FOR CARRYING
THE MAILS, OR TROOPS, OR SUPPLIES, OR FOR BUILDING SHIPS OR WORKS FOR
GOVERNMENT USE.  IN THOSE CASES THE GOVERNMENT HAS NO FURTHER CONCERN
WITH THE CONTRACTOR THAN IN HIS CONTRACT AND ITS EXECUTION.   IT HAS NO
CONCERN WITH HIS PROPERTY OR HIS FACULTIES INDEPENDENT OF THAT.  HOW
MUCH HE MAY BE TAXED BY, OR WHAT DUTIES HE MAY BE OBLIGED TO PERFORM
TOWARDS, HIS STATE IS OF NO CONSEQUENCE TO THE GOVERNMENT, SO LONG AS
HIS CONTRACT AND ITS EXECUTION ARE NOT INTERFERED WITH.  IN THAT CASE
THE CONTRACT IS THE MEANS EMPLOYED FOR CARRYING INTO EXECUTION THE
POWERS OF THE GOVERNMENT, AND THE CONTRACT ALONE, AND NOT THE
CONTRACTOR, IS EXEMPT FROM TAXATION OR OTHER INTERFERENCE BY THE STATE
GOVERNMENT."  RAILROAD CO. V. PENISTON, SUPRA, AT 41-42 (DISSENTING
OPINION).   MR. MR. CHIEF JUSTICE HUGHES QUOTED THE LATTER PARAGRAPH IN
SUPPORT OF THE DECISION IN JAMES V. DRAVO CONTRACTING CO., SUPRA, AT
155, HE IMPLIEDLY INDICATED THAT SOME DECISIONS THAT GAVE GOVERNMENT
CONTRACTORS IMMUNITY FROM TAXATION FOR THEIR PROPERTY, PROFITS, OR
PURCHASES DEVIATED FROM THE TRADITIONAL DOCTRINES OF IMPLIED
GOVERNMENTAL IMMUNITY, AND THAT THE DECISION IN THE DRAVO CASE WAS
ESSENTIALLY A RETURN TO ORTHODOXY AS MR. JUSTICE BRADLEY HAD ELUCIDATED
IT.  I VENTURE TO SAY THAT WHATEVER DEVIATIONS OR EVEN ABERRATIONS FROM
TRUE DOCTRINE CASES HERE AND THERE AND NOW HAPPILY LAID TO REST MAY
DISCLOSE, THERE IS A RESIDUUM OF CONTINUITY OVER THE LONG COURSE OF
JUDICIAL ADJUSTMENT OF THE STATES' POWER TO TAX AND THE LIMITS PLACED
UPON IT BY THE IMPLIED IMMUNITY OF THE NATIONAL GOVERNMENT FROM THE
DEMANDS OF THE STATE TAX COLLECTORS.  NO DECISION HAS EVER QUESTIONED
THAT A TAX CANNOT BE LAID UPON "THE GOVERNMENT, ITS PROPERTY OR
OFFICERS,"  JAMES V. DRAVO CONTRACTING CO., SUPRA, AT 149, OR, AS IT
WAS PHRASED IN UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, 177,
"THAT POSSESSIONS, INSTITUTIONS, AND ACTIVITIES OF THE FEDERAL
GOVERNMENT ITSELF IN THE ABSENCE OF EXPRESS CONGRESSIONAL CONSENT ARE
NOT SUBJECT TO ANY FORM OF STATE TAXATION."  THIS AT LEAST HAS BEEN A
BRIGHT STRAIGHT LINE RUNNING UNDEVIATINGLY THROUGH THE DECISIONS OF
THIS COURT.  SEE VAN BROCKLIN V. TENNESSEE, 117 U.S. 151; UNITED STATES
V. ALABAMA, 313 U.S. 274, 279. 

AS MR. CHIEF JUSTICE STONE STATED FOR A UNANIMOUS COURT IN ALABAMA V.
KING & BOOZER, 314 U.S. 1, 9, THE APPLICATION, AND THEREFORE THE
OUTCOME, IN CASES LIKE THOSE BEFORE US OF THESE GENERAL PRINCIPLES
"TURNS ON THE TERMS OF THE CONTRACT AND THE RIGHS AND OBLIGATIONS OF
THE PARTIES UNDER IT."  NOTHING BETTER ILLUSTRATES THE TRUTH OF THIS
STATEMENT THAN A COMPARISON OF KING & BOOZER WITH KERN-LIMERICK, INC.
V. SCURLOCK, 347 U.S. 110, A CASE WHOSE RELEVANCE IS NOT MINIMIZED BY
THE LOUD SILENCE THE COURT'S PRESENT OPINIONS ACCORD IT.  SINCE
"INTERGOVERNMENTAL SUBMISSION TO TAXATION IS PRIMARILY A PROBLEM OF
FINANCE AND LEGISLATION," 347 U.S., AT 122, IT IS IMMATERIAL THAT
CONTRACTS BY THE GOVERNMENT HAVE BEEN PURPOSEFULLY DRAWN SO AS TO VEST
TITLE TO THE PROPERTY THAT IS THE SUBJECT OF THE TAX IN THE GOVERNMENT,
AND THEREBY WITHDRAW IT FROM THE TAXING POWER OF THE STATES. 

IF A LEGAL DECISION WERE A VEHICLE FOR THE EXPRESSION OF MERELY
PERSONAL VIEWS, I MIGHT TAKE SATISFACTION AS A DISSENTER ON THE FACTS
FROM THE ALLEGHENY DECISION THAT THOSE WHO CONCURRED IN THE RESULT NOW
FOR ALL PRACTICAL PURPOSES REPUDIATE IT.  THE PRINCIPLE ON WHICH THE
DECISION RESTED, THAT A TAX CANNOT BE LAID ON THE PROPERTY OF THE
FEDERAL GOVERNMENT, WAS NOT, AS THE OPINION STATED, QUESTIONED IN THAT
CASE.  322 U.S., AT 177.  THE DIVISION TURNED ON A RELEVANT
CONSTRUCTION OF THE PENNSYLVANIA TAXING SYSTEM IN RESPECT TO FIXTURES
IN THEIR ENHANCEMENT OF CONCEDEDLY TAXABLE REALTY OWNED BY A GOVERNMENT
CONTRACTOR.  THE COURT FOUND THAT THE PENNSYLVANIA SCHEME OF TAXATION
WAS IN FACT "THE OLD AND WIDELY USED AD VALOREM GENERAL PROPERTY TAX." 
322 U.S., AT 184.  AS WE ARE TOLD BY THE COURT IN THE PRESENT CASE,
"REVIEWING ALL THE CIRCUMSTANCES THE COURT IN ALLEGHENY CONCLUDED THAT
THE TAX WAS SIMPLY AND FORTHRIGHTLY IMPOSED ON THE PROPERTY ITSELF, NOT
ON THE PRIVILEGE OF USING OR POSSESSING IT."  BUT THIS IS SO, A
FORTIORI, IN THE CIRCUMSTANCES OF NOS. 18 AND 36 NOW BEFORE US.  SURELY
THE DETAILED ANALYSIS OF MY BROTHER WHITTAKER OF "THE TERMS OF THE
CONTRACT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER IT," IN
RELATION TO THE TAXING SYSTEM OF MICHIGAN, DEMONSTRATES, IF ANYTHING IS
DEMONSTRABLE IN THE LAW, THAT THE TAX IMPOSED HAS ALL THE INCIDENTS OF
A GENERAL AD VALOREM PROPERTY TAX, AND THAT IT HAS THEM TO A MORE
CONCLUSIVE DEGREE THAN WAS TRUE OF THE TAX LEVIED BY PENNSYLVANIA IN
THE ALLEGHENY CASE. 

I CANNOT BELIEVE THAT THE COURT WOULD OUTRIGHT REJECT THE DOCTRINE OF
CONSTITUTIONAL IMMUNITY FROM TAXATION OF THE GOVERNMENT AND ITS
PROPERTY.  I CANNOT BELIEVE THAT THE COURT IS PREPARED FRANKLY TO
JETTISON WHAT HAS BEEN PART OF OUR CONSTITUTIONAL SYSTEM FOR ALMOST 150
YEARS.  BUT IT DOES NOT SAVE THE PRINCIPLE TO DISREGARD IT IN
PRACTICE.  AND IT DISREGARDS IT IN PRACTICE TO ARGUE FROM THE RIGHT OF
STATE TO LEVY AN EXCISE TAX AGAINST A CONTRACTOR FOR THE ENJOYMENT OF
PROPERTY THAT GIVES HIM AN ECONOMIC ADVANTAGE BECAUSE IT IS OTHERWISE
IMMUNE FROM TAXATION, TO THE RIGHT OF A STATE PROFESSEDLY AND DIRECTLY
TO LAY AN AD VALOREM PROPERTY TAX ON WHAT IS INDUBITABLY GOVERNMENT
PROPERTY. 

A TOTALLY DIFFERENT PROBLEM IS PRESENTED BY NOS. 26, 37, AND 38. 
THESE CASES PRESENT THE QUESTION WHETHER ENJOYMENT OF THE USE OF
PROPERTY THAT CARRIES SPECIAL ECONOMIC ADVANTAGES TO THE USER BECAUSE,
FOR ONE REASON OR ANOTHER, THE PROPERTY AS SUCH CANNOT BE THE SUBJECT
OF A TAX, IS INCLUDED WITHIN CHIEF JUSTICE MARSHALL'S PRINCIPLE THAT
"ALL SUBJECTS OVER WHICH THE SOVEREIGN POWER OF A STATE EXTENDS, ARE
OBJECTS OF TAXATION  ...  ."  WESTON V. CITY COUNCIL OF CHARLESTON, 2
PET. 449, 467.  IF A STATE MAY IMPOSE AN EXCISE TAX ON SOMETHING THAT
GIVES ADVANTAGE OR PLEASURE, SUCH AS THE PRACTICE OF PARTICULAR
PROFESSION, WHY IS IT NOT ALSO A TAXABLE ADVANTAGE THAT IS HAD FROM
BEING ABLE TO USE PROPERTY THAT FOR REASONS EXTRANEOUS TO THE USER IS
NOT SUBJECT TO THE TAXING POWER?  CF. WATSON V. STATE COMPTROLLER, 254
U.S. 122. 

THE ONLY RIGHT THAT A TAXPAYER CAN ASSERT AGAINST THE STATE TAXING
POWER ON THE BASIS OF GOVERNMENTAL IMMUNITY IS A "DERIVATIVE ONE,"
JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 158, SUPRA, AND IF HE IS
TO RESIST THE EXERCISE OF THIS POWER HE MUST STAND IN THE GOVERNMENT'S
SHOES.  THE IMMUNITY THAT HE ASSERTS IS THE GOVERNMENT'S IMMUNITY, NOT
HIS OWN.  IN TAXING THE ENJOYMENT OR USE OF PROPERTY THAT IS ITSELF
FREE FROM TAXATION, THE STATE TAXES AN INTEREST OF THE TAXPAYER, NOT OF
THE FEDERAL GOVERNMENT, AND THE TAX IS NOT LAID ON "THE GOVERNMENT, ITS
PROPERTY OR OFFICERS."  THE TAXPAYER IS NOT IMMUNE FROM A TAX BECAUSE
AS A MATTER OF DOLLARS AND CENTS IT MAY AFFECT THE GOVERNMENT.  TO BE
SURE, THE EXCISE IN NOS. 26, 37 AND 38 IS MEASURED BY THE VALUE OF THE
PROPERTY, SO THAT IF THE PROPERTY WERE DIRECTLY TAXED THE TAX BILL
WOULD BE THE SAME.  BUT IF THE ENJOYMENT OF OTHERWISE TAX-FREE PROPERTY
IS SOMETHING DIFFERENT FROM THE PROPERTY ITSELF FOR PURPOSES OF
TAXATION, IT DOES NOT LOSE THIS CHARACTERISTIC BECAUSE THE
ADMEASUREMENT IS THE SAME. 

A PRINCIPLE WITH THE UNINTERRUPTED HISTORIC LONGEVITY ATTRIBUTABLE TO
THE IMMUNITY OF GOVERNMENT PROPERTY FROM STATE TAXATION HAS A MOMENTUM
OF AUTHORITY THAT REFLECTS, IF NOT A DETAILED EXPOSITION OF
CONSIDERATIONS OF POLICY DEMANDED BY OUR FEDERAL SYSTEM, CERTAINLY A
DEEP INSTINCT THAT THERE ARE SUCH CONSIDERATIONS, AND THAT THE
DISTINCTION BETWEEN A TAX ON GOVERNMENT PROPERTY AND A TAX ON A THIRD
PERSON FOR THE PRIVILEGE OF USING SUCH PROPERTY IS NOT AN "EMPTY
FORMALISM."  THE DISTINCTION EMBODIES A CONSIDERED JUDGMENT AS TO THE
MINIMUM SAFEGUARD NECESSARY FOR THE NATIONAL GOVERNMENT TO CARRY ON ITS
ESSENTIAL FUNCTIONS WITHOUT HINDRANCE FROM THE EXERCISE OF POWER BY
ANOTHER SOVEREIGN WITHIN THE SAME TERRITORY.  THAT IN A PARTICULAR CASE
THERE MAY IN FACT BE NO CONFLICT IN THE EXERCISE OF THE TWO
GOVERNMENTAL POWERS IS NOT TO THE POINT.  IT IS IN AVOIDING THE
POTENTIALITIES OF FRICTION AND FURTHERING THE SMOOTH OPERATION OF
COMPLICATED GOVERNMENTAL MACHINERY THAT THE CONSTITUTIONAL DOCTRINE OF
IMMUNITY FINDS ITS EXPLANATION AND JUSTIFICATION. 

THE DANGER OF HINDRANCE OF THE FEDERAL GOVERNMENT IN THE USE OF ITS
PROPERTY, RESULTING IN EROSION OF THE FUNDAMENTAL COMMAND OF THE
SUPREMACY CLAUSE, IS AT ITS GREATEST WHEN THE STATE MAY, THROUGH
REGULATION OR TAXATION, MOVE DIRECTLY AGAINST THE ACTIVITIES OF THE
GOVERNMENT.  SCARCELY LESS IS THE DANGER WHEN THE SUBJECT OF A TAX,
THAT AT WHICH THE STATE HAS CONSCIOUSLY AND PURPOSEFULLY AIMED IN
ATTACHING THE CONSEQUENCE OF TAXABILITY, IS THE PROPERTY OF THE FEDERAL
GOVERNMENT.  IT IS NOT ONLY THAT THE LIKELIHOOD OF LOCAL LEGISLATION
DELIBERATELY OR UNWITTINGLY DISCRIMINATORY AGAINST GOVERNMENT PROPERTY
EITHER BY ITS TERMS OR APPLICATION MAY BE ENHANCED.  EVEN A
NONDISCRIMINATORY TAX, IF IT IS EXPRESSLY LAID ON GOVERNMENT PROPERTY,
IS MORE LIKELY TO RESULT IN INTERFERENCE WITH THE EFFECTIVE USE OF THAT
PROPERTY, WHETHER BECAUSE OF AN ILL-ADVISED ATTEMPT BY THE TAX
COLLECTOR TO LEVY ON THE PROPERTY ITSELF OR BECAUSE IT IS SOUGHT TO
HOLD THE GOVERNMENT OR ITS OFFICERS TO ACCOUNT FOR THE TAX, EVEN IF
ULTIMATELY THE ENDEAVOR MAY FAIL.  THE DEFENSE OF SOVEREIGN IMMUNITY TO
A SUIT AGAINST GOVERNMENT OFFICERS FOR THE TAX, OR A SUIT TO ASSERT
TITLE TO OR RECOVER PROPERTY ERRONEOUSLY LEVIED UPON TO SATISFY A TAX,
MAY IN PRACTICE BE AN INADEQUATE SUBSTITUTE FOR THE CLEAR ASSERTION OF
FEDERAL INTEREST AT THE THRESHOLD. 

THE FACT THAT A TAX ON A THIRD PARTY FOR THE PRIVILEGE OF USING
GOVERNMENT PROPERTY MAY ITSELF HAVE AN INDIRECT IMPEDING EFFECT IS NO
REASON AGAINST A RULE DESIGNED TO AVOID THE MORE DIRECT AND OBVIOUS
EVIL.  BECAUSE A CONSTITUTIONAL DOCTRINE IS NOT PUSHED TO THE LOGICAL
EXTREMITIES OF ITS POLICY IS NO ARGUMENT AGAINST MAINTAINING IT AS FAR
AS IT HAS HISTORICALLY EXTENDED.  FROM THE BEGINNING A BROAD CLOAK OF
IMMUNITY FOR GOVERNMENT PROPERTY HAS BEEN THOUGHT THE BEST WAY TO ALLAY
THE DANGER OF STATE ENCROACHMENT ON THE NATIONAL INTEREST, AND THE
CHARACTER OF OUR FEDERAL SYSTEM AND THE RELATIONS BETWEEN THE NATION
AND THE STATES HAVE NOT IN THIS REGARD SO CHANGED THAT THE PRINCIPLE
HAS BECOME OUTMODED. 

IF THE DISTINCTIONS BETWEEN THE TAXES INVOLVED IN THESE CASES SEEM
NICE, IT IS BECAUSE "NICE DISTINCTIONS ARE TO BE EXPECTED," GALVESTON,
H.&S.A.R. CO. V. TEXAS, 210 U.S. 217, 225, AND THEY ARE NONE THE WORSE
FOR IT.  NOT TO MAKE THEM, TO LUMP ALL THESE CASES TOGETHER AS THOUGH
SOME SIMILARITIES AND ASSUMED SIMILAR CONSEQUENCES AMOUNT TO
IDENTITIES, IS TO DISREGARD A LONG, UNBROKEN COURSE OF JUDICIAL HISTORY
AND PRACTICALITIES OF GOVERNMENT THAT DOUBTLESS HAVE LED, UNDER PRIOR
DECISIONS OF THIS COURT, TO THE DRAWING OF COUNTLESS CONTRACTS COVERING
THE USE OF GOVERNMENT PROPERTY. 

ACCORDINGLY, I DISSENT FROM THE COURT'S OPINION IN NOS. 18 AND 36,
AND CONCUR IN THE RESULT IN NOS. 26, 37, AND 38. 

OPINION OF MR. JUSTICE HARLAN.* 

*NOTE:  THIS OPINION APPLIES ALSO TO NO. 26, UNITED STATES V. CITY OF
DETROIT, ANTE, P. 466, AND NO. 37, UNITED STATES V. TOWNSHIP OF
MUSKEGON, ANTE, P. 484. 

BECAUSE ALL BUT TWO MEMBERS OF THE COURT CONSIDER THAT THE TAXES
INVOLVED IN THESE CASES ALL STAND OR FALL TOGETHER, I DEEM IT ADVISABLE
TO STATE MY REASONS FOR BELIEVING THAT THESE CASES REQUIRE DIFFERENT
CONCLUSIONS AS TO THE CONSTITUTIONALITY OF THE TAXES INVOLVED. 

IN DETERMINING THE CONSTITUTIONALITY OF A STATE TAX AGAINST A CLAIM
OF FEDERAL IMMUNITY, PAST CASES IN THIS COURT HAVE ESTABLISHED A
DISTINCTION BETWEEN "PROPERTY" AND "PRIVILEGE" TAXES OF ONE KIND OR
ANOTHER.  THAT IS, BROADLY SPEAKING, A STATE MAY NOT CONSTITUTIONALLY
TAX PROPERTY OWNED BY THE FEDERAL GOVERNMENT, EVEN THOUGH THE PROPERTY
IS IN PRIVATE HANDS AND THE TAX IS TO BE COLLECTED FROM A PRIVATE
TAXPAYER, UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, BUT IT MAY
TAX ACTIVITIES OF PRIVATE PERSONS, EVEN THOUGH THESE ACTIVITIES INVOLVE
THE USE OF GOVERNMENT PROPERTY AND THE VALUE OR AMOUNT OF SUCH PROPERTY
BECOMES THE PARTIAL OR EXCLUSIVE BASIS FOR THE MEASUREMENT OF THE TAX. 
CURRY V. UNITED STATES, 314 U.S. 14; ESSO STANDARD OIL CO. V. EVANS,
345 U.S. 495.  CF. PLUMMER V. COLER, 178 U.S. 115; EDUCATIONAL FILMS
CORP. V. WARD, 282 U.S. 379.  ALTHOUGH THE OPINIONS OF THE COURT IN THE
PRESENT CASES STOP SHORT OF REPUDIATING THIS ESTABLISHED DISTINCTION,
THEY SEEM TO ME TO BLUR IT TO THE POINT WHERE THE EXTENT OF ITS FUTURE
APPLICATION IS LEFT OCNFUSED AND UNCERTAIN. 

IN VIEW OF THIS COURT'S PAST DECISIONS IN THE PRIVILEGE-TAX CASES, I
AGREE WITH THE MAJORITY TODAY THAT THE LESSEE'S AND USER'S TAX IN NOS.
26, 37 AND 38, CONSTRUED BY THE STATE COURT TO BE A TAX ON THE
PRIVILEGE OF USING TAX-EXEMPT PROPERTY, IS CONSTITUTIONAL AS APPLIED. 
THE DISSENTING OPINION, WHICH I DO NOT BELIEVE CAN BE RECONCILED WITH
THESE PAST DECISIONS, CONCLUDES THAT THE TAX IMPOSED UPON THOSE USING
TAX-EXEMPT PROPERTY FOR PRIVATE PROFIT SHOULD BE REGARDED IN SUBSTANCE
AS A TAX ON THE PROPERTY ITSELF BECAUSE THE PRIVILEGE TAX IS MEASURED
BY THE FULL VALUE OF THE LEASED OR USED PROPERTY, RATHER THAN MERELY BY
THE VALUE OF THE LESSEE'S OR USER'S INTEREST.    IN EFFECT, IT SEEMS TO
ME THAT THE DISSENTERS EQUATE THE MEASURE OF THE TAX WITH THE SUBJECT
OF THE TAX.  BUT I DO NOT THINK THAT THE FORMULA HERE EMPLOYED BY
MICHIGAN TO MEASURE THESE TAXES CAN BE MEANINGFULLY DISTINGUISHED FROM
THAT APPLIED IN THE ALABAMA USE TAX UPHELD IN CURRY V. UNITED STATES,
SUPRA.  THERE THE USE TAX COLLECTED FORM A GOVERNMENT CONTRACTOR WAS
MEASURED BY A PERCENTAGE OF THE FULL VALUE OF GOVERNMENT-OWNED PROPERTY
USED BY THE CONTRACTOR TO EXECUTE ITS OBLIGATIONS.  INDEED, THE ONLY
DISTINCTION I CAN SEE IS THAT THE COMPENSATING USE TAX IN CURRY WAS
IMPOSED JUST ONCE, WEHREAS THE PRIVILEGE TAX IN MICHIGAN IS ASSESSED
YEARLY; BUT HAVING REGARD TO THE WIDE LATITUDE OF A STATE'S TAXING
POWER WITHIN THE DUE-PROCESS LIMITATIONS OF THE FOURTEENTH AMENDMENT, I
CAN HARDLY BELIEVE THAT THIS DIFFERENCE POINTS TO A CONTRARY
CONSTITUTIONAL RESULT.  THE DECISION IN ESSO STANDARD OIL CO. V. EVANS,
SUPRA, WHICH UPHED A STATE TAX ASSESSED TO A PRIVATE TAXPAYER ON THE
PRIVILEGE OF STORING GASOLINE ALTHOUGH THE TAX WAS MEASURED IN PART BY
THE AMOUNT OF GOVERNMENT GASOLINE STORED MULTIPLIED BY A FIXED RATE,
PROVIDES FURTHER SUPPORT FOR THIS CONCLUSION.   AND IN BOTH OF THOSE
CASES, AS IS TRUE HERE, THE GOVERNMENT BORE THE FULL ECONOMIC BURDEN OF
THE STATE TAXES. 

IT SHOULD BE OBSERVED THAT THE STATE TAXES HERE, AS THOSE IN CURRY
AND ESSO STANDARD OIL CO., DO NOT OPERATE IN A DISCRIMINATORY FASHION
BY SO MEASURING THE TAX ON USE OR ACTIVITIES AS TO IMPOSE AN UNEQUAL
TAX BURDEN ON LESSEES OR USERS OF GOVERNMENT PROPERTY VIS-A-VIS
LESSEES, USERS, OR OWNERS OF OTHER TAX-EXEMPT OR NONEXEMPT PROPERTY. 
AND SINCE THIS IS SO, I CANNOT AGREE WITH THE DISSENTING OPINION THAT
THIS COURT'S VIEW OF THE STATE LEGISLATURE'S PURPOSE IN ENACTING THE
STATUTE SHOULD AFFECT OUR DETERMINATION OF ITS CONSTITUTIONALITY. 
ALTHOUGH MICHIGAN HERE SOUGHT TO EQUALIZE TAX BURDENS ON USERS OF
NORMAL AND TAX-EXEMPT PROPERTY, OR PERHAPS EVEN TO BY-PASS ALLEGHENY, I
THINK IT HARDLY REPAYING TO SPECULATE ON THE MOTIVES BEHIND A LOCAL
TAX, AS LONG AS IT IS OTHERWISE CONSTITUTIONALLY PERMISSIBLE.  FINALLY,
IT SHOULD BE NOTED THAT ASSESSMENT OF THE PRIVILEGE TAX TO THE USER OF
GOVERNMENT PROPERTY IN NOS. 37 AND 38 WOULD PRESENT A QUITE DIFFERENT
PROBLEM IF THE USER WERE DEEMED TO BE AN INSTRUMENTALITY OF THE UNITED
STATES GOVERNMENT, BUT PETITIONERS IN THOSE CASES MAKE NO SUCH SHOWING,
AND I DO NOT UNDERSTAND THE DISSENTERS HERE TO RELY ON SUCH A GROUND. 

IN NOS. 18 AND 36 THE COURT HOLDS THAT A TAX WHICH THE DISSENTING
OPINIONS CONVINCINGLY SHOW IS NOTHING BUT A CONVENTIONAL AD VALOREM
PERSONAL PROPERTY TAX SHOULD BE REGARDED INSTEAD AS A TAX UPON THE
POSSESSION OF GOVERNMENT PROPERTY PRIVATELY USED.  THIS THE COURT FINDS
CONSTITUTIONALLY INDISTINGUISHABLE FROM THE TAX UPON THE USE OF
GOVERNMENT PROPERTY POSSESSED WHICH HAS BEEN UPHELD AS A PRIVILEGE TAX
IN NOS. 26, 37, AND 38.  THAT IS TO SAY, THE COURT FINDS THAT THE
GOVERNMENT'S PROPERTY HERE WAS SIMPLY THE MEASURE, AND NOT THE SUBJECT
MATTER, OF A TAX WHICH WAS IN EFFECT IMPOSED ON THE PRIVILEGE OF
POSSESSING PROPERTY USED FOR PRIVATE GAIN. 

IN SO HOLDING, THE COURT, PROCEEDING ON THE PREMISE THAT DETROIT'S
CHARACTERIZATION OF THIS TAX AS A PERSONAL PROPERTY TAX DOES NOT BIND
US, CARPENTER V. SHAW, 280 U.S. 363, 367-368, RELIES ON THE
CIRCUMSTANCES THAT THIS GOVERNMENT PROPERTY WAS USED FOR PRIVATE GAIN,
THAT THE TAX WAS COLLECTIBLE UNDER THE STATUTE FROM THE SUBCONTRACTOR
AND NOT FROM THE GOVERNMENT OR OUT OF ITS PROPERTY, AND THAT THE TAX
WAS NONDISCRIMINATORY.  BUT ALL OF THESE FACTORS WERE PRESEN IN UNITED
STATES V. ALLEGHENY COUNTY, SUPRA, WHERE THE COURT STRUCK DOWN A LOCAL
TAX ALSO CAST IN THE TRADITIONAL LANGUAGE OF A "PROPERTY" TAX. 
ALTHOUGH THE COURT HERE PURPORTS TO DISTINGUISH ALLEGHENY, IT SEEMS TO
ME THAT THE AUTHORITY OF THAT CASE HAS NOW BEEN REDUCED ALMOST TO THE
VANISHING POINT, FOR NEITHER THE TAX STATUTE HERE NOR THAT IN ALLEGHENY
QUALIFIED APPLICATION OF THE TAX TO PROPERTY EMPLOYED IN PRIVATE
COMMERCIAL ACTIVITY. 

WHAT HAS HAPPENED IN THESE TWO GROUPS OF CASES NO DOUBT REFLECTS THE
DIFFICULTY OF RECONCILING ALLEGHENY WITH THE PRIVILEGE TAX CASES, AND
BEARS WITNESS TO THE TRUTH OF MR. JUSTICE JACKSON'S STATEMENT IN
ALLEGHENY THAT IN THE EVOLUTION OF THE LAW IN THIS DIFFICULT FIELD "THE
LINE BETWEEN THE TAXABLE AND THE IMMUNE HAS BEEN DRAWN BY AN UNSTEADY
HAND."  322 U.S., AT 176.  SINCE THE ECONOMIC INCIDENCE OF A STATE TAX
ON THE FEDERAL GOVERNMENT IS NO LONGER A CONTROLLING FACTOR, JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 134; ALABAMA V. KING & BOOZER, 314 U.S.
1, AND SINCE THE USE OF FEDERALLY OWNED PROPERTY AS THE MEASURE, BY
VALUE OR AMOUNT, OF A TAX ON THE PRIVILEGE OF USING (CURRY V. UNITED
STATES, SUPRA) OR STORING (ESSO STANDARD OIL CO. V. EVANS, SUPRA) SUCH
PROPERTY IS PERMISSIBLE, THE DISTINCTION BETWEEN "PROPERTY" AND
"PRIVILEGE" TAXES AS A YARDSTICK FOR JUDGING CONSTITUTIONALITY WHEN
BOTH TAXES ARE COLLECTIBLE FROM A PRIVATE TAXPAYER HOLDING THE PROPERTY
IS CERTAINLY LEFT IN A HIGH DEGREE OF ARTIFICIALITY.  SEE POWELL,
INTERGOVERNMENTAL TAX IMMUNITIES, 58 HARV. L. REV. 633, 757; CF.
SOCIETY FOR SAVINGS V. BOWERS, 349 U.S. 143, 148.  THIS IS CERTAINLY SO
WHERE THE PROPERTY TAX APPLIES TO PROPERTY USED BY A PRIVATE PARTY IN
SOME ACTIVITY WHICH IS A PROPER SUBJECT OF STATE TAXATION, SEE
M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 429, AND WHERE, AS HERE, THE
STATE DOES NOT SEEK TO ACCOMPLISH WHAT WOULD IN ANY EVENT BE
PROCEDURALLY IMPOSSIBLE BECAUSE OF THE DOCTRINE OF SOVEREIGN IMMUNITY
FROM SUIT - ENFORCEMENT OF A LIEN ASSERTED AGAINST GOVERNMENT
PROPERTY.  IT IS QUITE UNDERSTANDABLE, THEREFORE, THAT THE COURT SHOULD
WISH TO MINIMIZE THE IMPORTANCE OF THAT DISTINCTION. 

BUT BY HOLDING THAT THE AD VALOREM PERSONAL PROPERTY TAXES INVOLVED
IN NOS. 18 AND 36 SHOULD BE REGARDED AS "PRIVILEGE" TAXES, IT SEEMS TO
ME THAT THE COURT HAS INJECTED FURTHER UNCERTAINTIES INTO A FIELD
ALREADY PLAGUED BY EXCESSIVE REFINEMENTS.  FOR UNTIL TODAY THE LINE
BETWEEN PROPERTY AND PRIVILEGE TAXES, IF "DRAWN BY AN UNSTEADY HAND,"
WAS AT LEAST VISIBLE.  A STATE COULD NOT TAX GOVERNMENT PROPERTY, EVEN
THOUGH THE PROPERTY WAS IN THE HANDS OF, AND THE TAX WAS COLLECTIBLE
ONLY FROM, PRIVATE PERSONS.  HOWEVER, IT NOW APPEARS THAT NOT ALL
PROPERTY TAXES ARE INDEED "PROPERTY" TAXES FOR PURPOSES OF
CONSTITUTIONAL IMMUNITY, EVEN THOUGH SO CHARACTERIZED OR CONSTRUED BY
STATE AUTHORITIES.  HENCEFORTH, APPARENTLY, WE MUST DETERMINE WHETHER
THE TAX WHICH A STATE HAS DRAFTED AS AND DENOMINATED A "PROPERTY" TAX
COULD, HAD THE STATE SO DESIRED, HAVE BEEN CONSTITUTIONALLY IMPOSED AS
A "PRIVILEGE" TAX, MEASURED BY THE VALUE OF THE TAXED PROPERTY, UPON
SOME ACTIVITY EMBRACING THE USE OF THE PROPERTY. 

IN MY OPINION, SO FLUID A RULE INCORPORATING THESE ELUSIVE ADDITIONAL
DISTINCTIONS WILL HARDLY HELP THOSE WHO IN THEIR DAILY BUSINESS MUST
NEGOTIATE CONTRACTS FOR OR WITH THE GOVERNMENT.  INDEED, THE DIFFICULTY
OF ITS APPLICATION IS EFFECTIVELY ILLUSTRATED BY THE DIVERGENCE OF
OPINION IN THESE VERY CASES, WHEREIN FIVE MEMBERS OF THE COURT HAVE
CONCLUDED THAT THESE PARTICULAR "PROPERTY" TAXES ARE IN REALITY
"PRIVILEGE" TAXES.  RATHER THAN ADD FURTHER COMPLICATIONS TO AN ALREADY
TROUBLED AREA OF THE LAW, I THINK THE PREFERABLE COURSE IS TO FOLLOW
OUR PAST CASES, UPON WHICH THOSE CONTRACTING FOR THE GOVERNMENT HAVE
UNDOUBTEDLY RELIED, AND TO LEAVE TO CONGRESS THE TASK OF ADJUSTING TO
THE NEEDS OF TODAY THE LAW WHICH ALLEGHENY AND THE PRIVILEGE TAX CASES
HAVE CREATED. 

FOR THESE REASONS, I HAVE JOINED THE OPINION OF THE COURT IN NOS. 26,
37 AND 38, AND THE DISSENTING OPINION OF MR. JUSTICE WHITTAKER IN NOS.
18 AND 36. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
BURTON AND MR. JUSTICE HARLAN JOIN, DISSENTING. 

I RESPECTFULLY DISSENT.  THE BASES OF MY DISAGREEMENT CAN BE MADE
CLEAR ONLY BY A FULL TREATMENT OF THE CASE. 

ON DECEMBER 20, 1950, THE UNITED STATES ENTERED INTO A CONTRACT WITH
KAISER MANUFACTURING COMPANY UNDER WHICH THE LATTER AGREED TO PRODUCE
AND DELIVER TO THE AIR FORCE CERTAIN AIRPLANES, AIRPLANE PARTS AND
SUBASSEMBLIES, AT FIXED PRICES; AND ON DECEMBER 12, 1950, A SIMILAR
CONTRACT WAS MADE BY THE GOVERNMENT WITH CURTISS-WRIGHT CORPORATION. 
AS CONTEMPLATED BY THE PARTIES, KAISER, ON MARCH 23, 1951, AND CURTISS
WRIGHT, ON APRIL 19, 1951, ENTERED INTO SUBCONTRACTS WITH RESPONDENT,
THE MURRAY CORPORATION OF AMERICA, UNDER WHICH THE LATTER AGREED TO
PRODUCE AND DELIVER TO THOSE PRIME CONTRACTORS CERTAIN AIRPLANE PARTS,
SUBASSEMBLIES AND NONDURABLE TOOLS (HEREINAFTER CALLED SUPPLIES) AT
FIXED PRICES, WHICH SUBCONTRACTS WERE APPROVED BY THE CONTRACTING
OFFICER OF THE AIR FORCE.  THE SUBCONTRACTS CONTAINED "PARTIAL PAYMENT"
PROVISIONS WHICH PROVIDED, AMONG OTHER THINGS, THAT UPON THE MAKING OF
ANY PARTIAL PAYMENTS TO MURRAY UNDER THE SUBCONTRACTS "TITLE TO ALL
PARTS, MATERIALS, INVENTORIES, WORK IN PROCESS AND NON-DURABLE TOOLS
THERETOFORE AND THEREAFTER, UPON ACQUISITION ACQUIRED OR PRODUCED BY
THE SUBCONTRACTOR FOR THE PERFORMANCE OF THE CONTRACTS, AND PROPERLY
CHARGEABLE THERETO  ...  SHALL FORTHWITH VEST IN THE GOVERNMENT."  SUCH
PROPERTY WILL HEREINAFTER BE CALLED MATERIALS.  AFTER THE DATE OF THE
SUBCONTRACTS, AND PRIOR TO JANUARY 1, 1952, THE GOVERNMENT, THROUGH THE
PRIME CONTRACTORS, MADE "PARTIAL PAYMENTS" TO MURRAY IN THE AMOUNT OF
$674,776.87.  (FN1)  NONE OF THE SUPPLIES TO BE PRODUCED BY RESPONDENT
UNDER THE SUBCONTRACTS HAD BEEN COMPLETED OR DELIVERED PRIOR TO JANUARY
1, 1952. 

ON THE 1952 TAX ASSESSMENT DATE OF JANUARY 1, 1952, PETITIONERS, THE
CITY OF DETROIT AND THE COUNTY OF WAYNE, MADE AN ASSESSMENT (VALUATION)
OF MURRAY'S PERSONAL PROPERTY IN THE AMOUNT OF $12,183,180, WHICH
INCLUDED $2,043,670 FOR MATERIALS ORIGINALLY ACQUIRED BY MURRAY FOR THE
PERFORMANCE OF THE SUBCONTRACTS, AND PROPERLY CHARGEABLE THERETO. 
APPLYING THEIR RESPECTIVE TAX RATES TO THAT ASSESSMENT, THE CITY OF
DETROIT IMPOSED A TAX OF $67,714.96 AND THE COUNTY OF WAYNE IMPOSED A
TAX OF $12,572.66, MORE THAN WOULD HAVE BEEN THE CASE IF THE VALUE OF
THE MATERIALS OF $2,043,670 HAD NOT BEEN INCLUDED IN THE 1952
ASSESSMENT AGAINST MURRAY. 

MURRAY PAID THOSE TAXES UNDER WRITTEN PROTEST, (FN2) AND AFTER HAVING
EXHAUSTED ALL ADMINISTRATIVE REMEDIES, IT BROUGHT THREE ACTIONS AGAINST
PETITIONERS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF MICHIGAN FOR REFUND OF THAT PART THEREOF ($80,287.62 PLUS
INTEREST) ALLOCABLE TO INCLUSION IN THE ASSESSMENT OF THE $2,043,670
UPON THE MATERIALS REFERRED TO.  (FN3)  THE UNITED STATES INTERVENED IN
THE ACTIONS AND, BY STIPULATION, THEY WERE CONSOLIDATED FOR TRIAL. 
MURRAY MOVED FOR SUMMARY JUDGMENTS, AND THE PARTIES STIPULATED THAT NO
GENUINE ISSUE OF MATERIAL FACT EXISTED IN THE ACTIONS.  THE COURT,
AFTER CONSIDERING THE MOTION, AND THE EXHIBITS AND AFFIDAVITS IN
SUPPORT OF AND IN OPPOSITION THERETO, AND HEARING THE ARGUMENTS AND
CONSIDERING THE BRIEFS OF COUNSEL, GRANTED THE MOTION AND RENDERED
JUDGMENT IN EACH OF THE ACTIONS IN FAVOR OF MURRAY AND AGAINST
PETITIONERS FOR THE AMOUNT PRAYED, PLUS INTEREST.  132 F. SUPP. 899. 
THE COURT OF APPEALS, HOLDING THAT THE MATERIALS WERE OWNED BY THE
GOVERNMENT, AND NOT BY MURRAY, ON THE ASSESSMENT DATE, THAT THE TAX
ASSESSED AND IMPOSED THEREON AND COLLECTED BY PETITIONERS WAS A GENERAL
AD VALOREM PERSONAL PROPERTY TAX ON THE GOVERNMENT'S PROPERTY, AND THAT
THE GOVERNMENT WAS CONSTITUTIONALLY IMMUNE FROM SUCH TAXES, AFFIRMED
THE JUDGMENTS OF THE DISTRICT COURT.  234 F.2D 380. 

THE MAJORITY NOW REVERSES THE COURT OF APPEALS AND REINSTATES THE
ASSESSMENT AND TAX.  IN DOING SO, I BELIEVE, THEY ARE NOT ONLY IN
SERIOUS ERROR, BUT ALSO THEY ADD WORDS TO THE TAXING ACTS INVOLVED AND
THE OPINION OPENLY SO ADMITS.  SEE P. 493, SUPRA. 

THREE PRINCIPAL ISSUES ARE PRESENTED, NAMELY:  (1) DID THE
GOVERNMENT, BY THE TERMS OF THE "PARTIAL PAYMENT" PROVISIONS OF THE
SUBCONTRACTS, BECOME "VESTED" WITH "TITLE" TO ALL ELEMENTS OF PROPERTY
AND INCIDENTS OF OWNERSHIP IN THE MATERIALS REFERRED TO PRIOR TO THE
ASSESSMENT DATE, OR DID IT THEREBY ACQUIRE "TITLE" THERETO ONLY AS
SECURITY AND, THUS, BECOME ONLY A LIENOR?  (2) IS THIS A GENERAL AD
VALOREM TAX IMPOSED ON THE MATERIALS, AS CONTENDED BY RESPONDENTS AND
AS FOUND BY THE COURT OF APPEALS?  (3) IF THE MATERIALS WERE, IN FACT,
THE PROPERTY OF THE GOVERNMENT ON THE ASSESSMENT DATE, AND THE TAX
CONSTITUTES A

   I. 

THE FIRST QUESTION OF WHETHER THE GOVERNMENT ACQUIRED COMPLETE AND
ABSOLUTE TITLE TO THE MATERIALS PRIOR TO, AND BENEFICIALLY OWNED THEM
ON, THE ASSESSMENT DATE, AS RESPONDENTS CONTEND, OR HAD ACQUIRED
"TITLE" THERETO ONLY AS SECURITY AND WAS THEREFORE ONLY A LIENOR, AS
CONTENDED BY PETITIONERS, DEPENDS UPON THE TERMS OF THE "PARTIAL
PAYMENT" PROVISIONS OF THE SUBCONTRACTS AND UPON ACTUAL OPERATIONS
THEREUNDER, FOR THE QUESTION, IN LAST ANALYSIS, IS ONE OF INTENTION OF
THE CONTRACTING PARTIES. 

THE PARTIAL PAYMENT PROVISIONS, IN PERTINENT PART, PROVIDE: 

"11.  PARTIAL PAYMENTS.  - PARTIAL PAYMENTS  ... MAY BE MADE UPON THE
FOLLOWING TERMS AND CONDITIONS. 

"(A) THE CONTRACTING OFFICER MAY, FROM TIME TO TIME, AUTHORIZE
PARTIAL PAYMENTS TO THE MURRAY CORPORATION OF AMERICA (HEREINAFTER
CALLED 'THE CONTRACTOR') UPON PROPERTY ACQUIRED OR PRODUCED BY IT FOR
THE PERFORMANCE OF THIS CONTRACT:  PROVIDED, THAT SUCH PARTIAL PAYMENTS
SHALL NOT EXCEED 90 PERCENT OF THE COST TO THE CONTRACTOR OF THE
PROPERTY UPON WHICH PAYMENT IS MADE AND IN NO EVENT SHALL THE TOTAL OF
UNLIQUIDATED PARTIAL PAYMENTS (SEE (C) BELOW)  ...  MADE UNDER THIS
CONTRACT, EXCEED 80 PERCENT OF THE CONTRACT PRICE OF SUPPLIES STILL TO
BE DELIVERED.    "(B)  UPON THE MAKING OF ANY PARTIAL PAYMENT UNDER
THIS CONTRACT, TITLE TO ALL PARTS, MATERIALS, INVENTORIES, WORK IN
PROCESS AND NON-DURABLE TOOLS THERETOFORE AND THEREAFTER, UPON
ACQUISITION ACQUIRED OR PRODUCED BY THE CONTRACTOR FOR THE PERFORMANCE
OF THIS CONTRACT, AND PROPERLY CHARGEABLE THERETO  ...  SHALL FORTHWITH
VEST IN THE GOVERNMENT  ...  . 

"(C)  IN MAKING PAYMENT FOR THE SUPPLIES FURNISHED HEREUNDER, THERE
SHALL BE DEDUCTED FROM THE CONTRACT PRICE THEREFOR A PROPORTIONATE
AMOUNT OF THE PARTIAL PAYMENTS THERETOFORE MADE TO THE CONTRACTOR,
UNDER THE AUTHORITY HEREIN CONTAINED. 

"(D)  IT IS RECOGNIZED THAT THE MATERIALS, TITLE TO WHICH IS OR MAY
HEREAFTER BECOME VESTED IN THE GOVERNMENT PURSUANT TO THIS ARTICLE WILL
FROM TIME TO TIME BE USED BY  ...  THE CONTRACTOR IN CONNECTION WITH
THE PERFORMANCE OF THIS CONTRACT.  THE CONTRACTOR, EITHER BEFORE OR
AFTER RECEIPT OF NOTICE OF TERMINATION BY THE GOVERNMENT, MAY ACQUIRE
OR DISPOSE OF PROPERTY TO WHICH TITLE IS VESTED IN THE GOVERNMENT UNDER
THIS ARTICLE, UPON TERMS APPROVED BY THE CONTRACTING OFFICER  ...  .
THE AGREED PRICE (IN CASE OF ACQUISITION BY THE CONTRACTOR) OR THE
PROCEEDS RECEIVED BY THE CONTRACTOR (IN CASE OF ANY OTHER DISPOSITION),
SHALL, TO THE EXTENT THAT SUCH PRICE AND PROCEEDS DO NOT EXCEED THE
UNLIQUIDATED BALANCE OF PARTIAL PAYMENTS HEREUNDER, BE PAID OR CREDITED
TO THE GOVERNMENT AS THE CONTRACTING OFFICER SHALL DIRECT; AND SUCH
UNLIQUIDATED BALANCE SHALL BE REDUCED ACCORDINGLY.  CURRENT PRODUCTION
SCRAP MAY BE SOLD BY THE CONTRACTOR WITHOUT APPROVAL OF THE CONTRACTING
OFFICER BUT THE PROCEEDS WILL BE PAID OR CREDITED TO THE GOVERNMENT
...  .  UPON LIQUIDATION OF ALL PARTIAL PAYMENTS HEREUNDER OR UPON
COMPLETION OF DELIVERIES CALLED FOR BY THIS CONTRACT, TITLE TO ALL
PROPERTY (OR THE PROCEEDS THEREOF) WHICH HAS NOT BEEN DELIVERED TO AND
ACCEPTED BY THE GOVERNMENT UNDER THIS CONTRACT OR WHICH HAS NOT BEEN
INCORPORATED IN SUPPLIES DELIVERED TO AND ACCEPTED BY THE GOVERNMENT
UNDER THIS CONTRACT AND TO WHICH TITLE HAS VESTED IN THE GOVERNMENT
UNDER THIS ARTICLE SHALL VEST IN THE CONTRACTOR. 

"(E)  ...  THE PROVISIONS OF THIS ARTICLE SHALL NOT RELIEVE THE
CONTRACTOR FROM RISK OF LOSS OR DESTRUCTION OF OR DAMAGE TO PROPERTY TO
WHICH TITLE VESTS IN THE GOVERNMENT UNDER THE PROVISIONS HEREOF." 

IT WAS SHOWN, BY AN UNCONTRADICTED AFFIDAVIT, AT THE HEARING ON THE
MOTION FOR SUMMARY JUDGMENTS THAT THE MATERIALS ORIGINALLY ACQUIRED BY
MURRAY FOR PERFORMANCE OF THE SUBCONTRACTS, AND PROPERLY CHARGEABLE
THERETO, WERE COMPLETELY SEGREGATED FROM ALL OTHER PERSONAL PROPERTY IN
ITS PLANT AND WERE "CLEARLY IDENTIFIED," BY "TAGGING OR LABELING," AS
PROPERTY OF THE GOVERNMENT; THAT AS MATERIALS WERE WITHDRAWN BY MURRAY,
FOR USE IN PRODUCING THE SUPPLIES, COMPLETE RECORDS OF THE MATERIALS SO
WITHDRAWN, AND THE GOVERNMENT'S COSTS THEREFOR, WERE MADE AND KEPT; AND
THAT WHEN THE SUPPLIES WERE COMPLETED AND DELIVERED BY MURRAY AND
ACCEPTED BY THE GOVERNMENT, MURRAY PAID THE GOVERNMENT FOR THE
MATERIALS SO CONSUMED BY CREDITING THE CONTRACT PRICE FOR THE SUPPLIES
WITH AN AMOUNT EQUAL TO THE GOVERNMENT'S COST (90 PERCENT OF MURRAY'S
ORIGINAL COST) FOR THE MATERIALS CONSUMED IN PRODUCING THE SUPPLIES, AS
PROVIDED IN SUBPARAGRAPH (C) OF THE PARTIAL PAYMENT PROVISIONS. 

AS NOTED, SUPRA, SUBPARAGRAPH (B) OF THE PARTIAL PAYMENT PROVISIONS
OF THE SUBCONTRACTS EXPRESSLY PROVIDES THAT, UPON THE MAKING OF ANY
PARTIAL PAYMENT TO MURRAY UNDER THE SUBCONTRACTS, "TITLE" TO THE
MATERIALS "SHALL FORTHWITH VEST IN THE GOVERNMENT."  BEGINNING ON
AUGUST 10, 1951, PARTIAL PAYMENTS WERE MADE FROM TIME TO TIME BY THE
GOVERNMENT TO MURRAY IN VERY SUBSTANTIAL AMOUNTS (SEE NOTE 1).  IT
CANNOT BE DOUBTED THAT THE PLAIN AND SIMPLE LANGUAGE OF SUBPARAGRAPH
(B) WAS APPROPRIATE, APT AND ADEQUATE TO VEST THE TITLE TO THE
MATERIALS IN THE GOVERNMENT.  (FN4) PETITIONERS CONCEDE, AND THE
MAJORITY ASSUMES, THAT THIS IS SO.  PETITIONERS' POSITION IS, HOWEVER,
THAT THE TITLE SO VESTED IN THE GOVERNMENT WAS FOR SECURITY PURPOSES,
AND CREATED ONLY A LIEN ON THE MATERIALS AS SECURITY TO THE GOVERNMENT,
AND ALSO THAT ACTUAL OPERATIONS UNDER THE CONTRACTS WERE INCONSISTENT
WITH ANY REAL INTENTION TO CONVEY ACTUAL OWNERSHIP OF THE MATERIALS TO
THE GOVERNMENT. 

AS TO PETITIONERS'"LIEN" CONTENTION, WE MUST ASK OURSELVES:  A LIEN
AS SECURITY FOR WHAT?  ADMITTEDLY MURRAY WAS NOT INDEBTED, NOR TO
BECOME INDEBTED, TO THE GOVERNMENT UNDER THE SUBCONTRACTS AND, HENCE,
THERE WAS AND WOULD BE NO DEBT TO SECURE.  NOR CAN IT BE SAID THAT THE
VESTING OF TITLE TO THE MATERIALS IN THE GOVERNMENT WAS IN ANY WAY TO
SECURE REPAYMENT OF THE PARTIAL PAYMENTS MADE BY THE GOVERNMENT TO
MURRAY, BECAUSE THOSE PARTIAL PAYMENTS WERE NOT TO BE REPAID TO THE
GOVERNMENT, BUT WERE EXPRESSLY MADE BY THE GOVERNMENT IN PAYMENT OF THE
PURCHASE PRICE FOR THE MATERIALS.  NEITHER CAN IT BE SAID THAT THE
VESTING OF TITLE TO THE MATERIALS IN THE GOVERNMENT WAS FOR THE PURPOSE
OF SECURING PERFORMANCE OF THE CONTRACTS BY MURRAY, AS CONVEYANCE OF
THE MATERIALS TO THE GOVERNMENT COULD NOT POSSIBLY HAVE ANY SUCH LEGAL
EFFECT. 

PETITIONERS ADVANCE SEVERAL ARGUMENTS IN SUPPORT OF THEIR CLAIM THAT
THE TERMS OF THE SUBCONTRACTS, AND ACTUAL OPERATIONS UNDER THEM, WERE
INCONSISTENT WITH ANY REAL INTENTION TO CONVEY ACTUAL OWNERSHIP OF THE
MATERIALS TO THE GOVERNMENT. 

AS TO THE TERMS OF THE SUBCONTRACTS, THEY ARGUE, FIRST, THAT
SUBPARAGRAPH (D) OF THE PARTIAL PAYMENT PROVISIONS, SAYING THAT
"CURRENT PRODUCTION SCRAP MAY BE SOLD BY THE CONTRACTOR WITHOUT
APPROVAL OF THE CONTRACTING OFFICER," SUPPORTS THEIR CONTENTION.  THAT
ARGUMENT OVERLOOKS THE FACT THAT THE SUBPARAGRAPH CONTINUES, SAYING,
"BUT THE PROCEEDS WILL BE PAID OR CREDITED TO THE GOVERNMENT."  THUS,
THE CONTRACTOR IS AUTHORIZED MERELY TO SELL THE CURRENT PRODUCTION
SCRAP AS AGENT FOR THE GOVERNMENT AND MUST ACCOUNT TO IT FOR THE
PROCEEDS, AND, HENCE, THIS PROCEDURE IS IN NO WAY INCONSISTENT WITH THE
GOVERNMENT'S OWNERSHIP OF THE SCRAP.  SECOND, THEY ARGUE THAT THE
LANGUAGE OF SUBPARAGRAPH (D) SAYING THAT, "UPON LIQUIDATION OF ALL
PARTIAL PAYMENTS HEREUNDER OR UPON COMPLETION OF DELIVERIES CALLED FOR
BY THIS CONTRACT, TITLE TO ALL PROPERTY (OR THE PROCEEDS THEREOF) WHICH
HAS NOT BEEN DELIVERED TO AND ACCEPTED BY THE GOVERNMENT UNDER THIS
CONTRACT OR WHICH HAS NOT BEEN INCORPORATED IN SUPPLIES DELIVERED TO
AND ACCEPTED BY THE GOVERNMENT UNDER THIS CONTRACT AND TO WHICH TITLE
HAS VESTED IN THE GOVERNMENT UNDER THIS ARTICLE SHALL VEST IN THE
CONTRACTOR," SHOWS THAT THE GOVERNMENT'S TITLE TO THE MATERIALS WAS NOT
REAL AND BENEFICIAL.  THIS ARGUMENT CANNOT BE ACCEPTED, FOR IF, AS WAS
PLAINLY TRUE, THE LANGUAGE OF SUBPARAGRAPH (B) SAYING THAT, UPON THE
MAKING OF PARTIAL PAYMENTS BY THE GOVERNMENT TO MURRAY, TITLE TO THE
MATERIALS "SHALL FORTHWITH VEST IN THE GOVERNMENT" WAS ADEQUATE TO
EFFECT A TRANSFER BY MURRAY TO THE GVOERNMENT, IT MUST FOLLOW THAT THE
SIMILAR LANGUAGE IN SUBPARAGRAPH (D) WAS ADEQUATE TO EFFECT A
RETRANSFER, UPON FULL COMPLETION OF THE SUBCONTRACTS, OF ANY REMNANT OF
THE MATERIALS BY THE GOVERNMENT TO MURRAY; NOR CAN IT BE DENIED THAT
THE GOVERNMENT HAD THE RIGHT AND POWER VALIDLY TO RETRANSFER THAT
PROPERTY UNDER THOSE CIRCUMSTANCES. 

CONCERNING OPERATIONS UNDER THE SUBCONTRACTS, PETITIONERS ARGUE,
FIRST, THAT THE USE OF THE PARTIAL PAYMENT PROVISIONS IN THE
SUBCONTRACTS WAS A LEGAL DEVICE FOR THE PURPOSE OF ESCAPING STATE AD
VALOREM PERSONAL PROPERTY TAXATION.  THIS ARGUMENT IS NOT ONLY
UNACCEPTABLE ON ITS MERITS (CF. KERN-LIMERICK, INC. V. SCURLOCK, 347
U.S. 110, 116, 122(FN5)), BUT, IN ADDITION, IT IS CONTRARY TO THE
STIPULATION MADE BY THE PARTIES AT THE HEARING IN THE DISTRICT COURT. 
(FN6)  SECOND, THEY ARGUE THAT THE FACT THAT MURRAY INSURED THE
MATERIALS AND ITS ADMITTEDLY OWNED PROPERTY IN ONE POLICY IN ITS OWN
FAVOR IS INCONSISTENT WITH GOVERNMENT OWNERSHIP OF THE MATERIALS AND
INDICATES THAT MURRAY REGARDED THESE MATERIALS AS OWNED BY IT.  AS
NOTED, SUPRA, MURRAY AGREED, UNDER THE TERMS OF THE CONTRACTS, TO BE
LIABLE TO THE GOVERNMENT FOR LOSS OR DESTRUCTION OF OR DAMAGE TO THE
MATERIALS, OCCURRING WHILE IN ITS POSSESSION, "TO WHICH TITLE HAD
VESTED IN THE GOVERNMENT UNDER THE PROVISIONS OF THE SUBCONTRACTS."  TO
INSURE THAT CONTRACTUAL LIABILITY MURRAY CAUSED ITS INSURANCE POLICY TO
BE EXPANDED TO COVER, INTER ALIA, "  ...  PERSONAL PROPERTY  ...  SOLD
BUT NOT DELIVERED OR REMOVED, OR FOR WHICH IT IS LIABLE, ALL WHILE
LOCATED IN AND/OR ON THE PREMISES OCCUPIED BY THE INSURED."  (FN7)
PLAINLY, THIS PRECAUTIONARY ACTION BY MURRAY WAS IN NO WAY INCONSISTENT
WITH OUTRIGHT GOVERNMENT OWNERSHIP OF THE MATERIALS, BUT, ON THE
CONTRARY, IT STRONGLY INDICATES MURRAY'S INTENTION AND UNDERSTANDING
THAT THE MATERIALS HAD BEEN SOLD TO AND WERE OWNED BY THE GOVERNMENT
THOUGH NOT DELIVERED.  CF.  UNITED STATES V. ANSONIA BRASS & COPPER
CO., 218 U.S. 452, 467. 

IN UNITED STATES V. ANSONIA BRASS & COPPER CO., SUPRA, THIS COURT
DEALT AT LENGTH WITH LIKE CONTENTIONS.  THERE THE GOVERNMENT HAD
ENTERED INTO A CONTRACT FOR THE CONSTRUCTION AND DELIVERY OF A SEAGOING
DREDGE TO BE NAMED THE BENYUARD.  THE CONTRACT PROVIDED THAT THE
GOVERNMENT WAS TO MAKE 10 EQUAL PARTIAL PAYMENTS TO THE CONTRACTOR, TO
AGGREGATE 80 PERCENT OF THE CONTRACT PRICE, THE FIRST TO BE MADE WHEN
THE HULL AND PROPELLING MACHINERY SHOULD BE 10 PERCENT COMPLETE, THE
SECOND WHEN 20 PERCENT COMPLETE, AND SO ON TO THE LAST PAYMENT, WHICH
WAS TO BE MADE WHEN THE VESSEL WAS DELIVERED TO AND ACCEPTED BY THE
GOVERNMENT, WHEN THE RESERVED 20 PERCENT OF THE CONTRACT PRICE WAS TO
BE PAID; AND THAT "THE PARTS PAID FOR UNDER THE SYSTEM OF PARTIAL
PAYMENTS ABOVE SPECIFIED WERE TO BECOME THEREBY THE SOLE PROPERTY OF
THE UNITED STATES."  ID., AT 466.  BEFORE COMPLETION OF THE DREDGE THE
CONTRACTOR BECAME INSOLVENT AND WAS UNABLE TO PAY BILLS FOR MATERIALS
USED IN THE VESSEL, AND A RECEIVER WAS APPOINTED.  AN ISSUE AROSE AS TO
WHETHER THE PROVISIONS OF THE CONTRACT HAD CONVEYED OWNERSHIP OF THE
UNFINISHED VESSEL TO THE GOVERNMENT, THUS PREVENTING LEVY THEREON OF
MATERIALMEN'S LIENS CREATED UNDER STATE LAW.  THE GOVERNMENT CONTENDED
"  ...  THAT THE TERMS OF THIS CONTRACT WERE SUCH THAT BY ITS EXPRESSED
PROVISIONS THE VESSEL WAS TO BECOME THE PROPERTY OF THE UNITED STATES
AS FAST AS IT WAS PAID FOR."  IBID.  UPON THAT ISSUE THIS COURT SAID: 

"IT IS UNDOUBTEDLY TRUE THAT THE MERE FACTS THAT THE VESSEL IS TO BE
PAID FOR IN INSTALLMENTS AS THE WORK PROGRESSES, AND TO BE BUILT UNDER
THE SUPERINTENDENCE OF A GOVERNMENT INSPECTOR, WHO HAD POWER TO REJECT
OR APPROVE THE MATERIALS, WILL NOT OF THEMSELVES WORK THE TRANSFER OF
THE TITLE OF A VESSEL TO BE CONSTRUCTED, IN ADVANCE OF ITS COMPLETION. 
BUT IT IS EQUALLY WELL SETTLED THAT IF THE CONTRACT IS SUCH AS TO
CLEARLY EXPRESS THE INTENTION OF THE PARTIES THAT THE BUILDERS SHALL
SELL AND THE PURCHASERS SHALL BUY THE SHIP BEFORE ITS COMPLETION, AND
AT THE DIFFERENT STAGES OF ITS PROGRESS, AND THIS PURPOSE IS EXPRESSED
IN THE WORDS OF THE CONTRACT, IT IS BINDING AND EFFECTUAL IN LAW TO
PASS THE TITLE  ...  . 

     *         *         *         *         * 

"AS WE CONSTRUE THE CONTRACT FOR THE CONSTRUCTION OF THE BENYUARD, IT
DID 'DIVEST THE BUILDER OF ANY TITLE TO THE PROPERTY IN THE VESSEL
DURING THE PROCESS OF CONSTRUCTION.'  ... 

     *         *   *         *         * 

"  ...  WE ARE NOT NOW DEALING WITH THE RIGHT OF A STATE TO PROVIDE
FOR SUCH LIENS WHILE PROPERTY TO THE CHATTEL IN PROCESS OF CONSTRUCTION
REMAINS IN THE BUILDER, WHO MAY BE CONSTRUCTING THE SAME WITH A VIEW TO
TRANSFERRING TITLE THEREIN TO THE UNITED STATES UPON ITS ACCEPTANCE
UNDER A CONTRACT WITH THE GOVERNMENT.  WE ARE NOW TREATING OF PROPERTY
WHICH THE UNITED STATES OWNS.  ...  THE BENYUARD, AS FAST AS
CONSTRUCTED, BECAME ONE OF THE INSTRUMENTALITIES OF THE GOVERNMENT  ...
."  ID., AT 466, 470, 471. 

THIS COURT THUS HELD THAT THE CONTRACT - CONTAINING TITLE-VESTING
PROVISIONS ALMOST IDENTICAL WITH THE ONES HERE - CONVEYED FULL
OWNERSHIP OF THE UNFINISHED VESSEL - NOT A MERE LIEN - TO THE
GOVERNMENT, AND IT, THEREFORE, REVERSED THE JUDGMENT OF THE COURT BELOW
WHICH HAD ALLOWED STATE-CREATED MATERIALMEN'S LIENS TO BE IMPOSED UPON
THE UNFINISHED VESSEL.  THE PRINCIPLES OF THAT DECISION APPEAR TO HAVE
BEEN FOLLOWED IN EVERY DECIDED CASE IN THIS COUNTRY UPON THE QUESTION
(FN8) SAVE ONE.  (FN9) 

I BELIEVE THAT THESE CONSIDERATIONS REQUIRE THE CONCLUSION THAT THE
DISTRICT COURT AND THE COURT OF APPEALS WERE RIGHT IN HOLDING THAT THE
CONTRACTS IN QUESTION CONVEYED FULL BENEFICIAL TITLE - ALL ELEMENTS OF
PROPERTY AND INCIDENTS OF OWNERSHIP - IN THE MATERIALS TO THE
GOVERNMENT. 

                                             II. 

IS THIS A GENERAL AD VALOREM TAX IMPOSED ON THE MATERIALS?  THE
MAJORITY HOLDS, WE THINK ERRONEOUSLY, THAT IT IS NOT.  UNDER THE
CONSTITUTION OF THE STATE OF MICHIGAN (FN10) ONLY TWO GENERAL METHODS
OF TAXATION BY THE STATE OR ITS SUBDIVISIONS ARE AUTHORIZED, NAMELY,
(1) AD VALOREM TAXES, AND (2) EXCISE OR PRIVILEGE TAXES.  C.F. SMITH
CO. V. FITZGERALD, 270 MICH. 659, 672, 259 N.W. 352, 357; PINGREE V.
AUDITOR GENERAL, 120 MICH. 95, 102, 109, 78 N.W. 1025, 1027, 1029
1030.  THE TAXES HERE QUESTIONED WERE LEVIED BOTH BY THE CITY AND
COUNTY SUBJECT TO THE AUTHORITY OF THE GENERAL PROPERTY TAX ACT OF
MICHIGAN.  ACT 206 OF THE PUBLIC ACTS OF MICHIGAN, 1893, AS AMENDED (6
MICH. STAT. ANN., 1950, SECS. 7.1-7.243) ("AN ACT TO PROVIDE FOR THE
ASSESSMENT OF PROPERTY AND THE LEVY AND COLLECTION OF TAXES THEREON
...  .").  SECTION 211.40 OF MICH. COMP. LAWS, 1948 (6 MICH. STAT.
ANN., 1950, SEC. 7.81) PROVIDES IN PERTINENT PART:  "PROPERTY TAXES;
LINE, PRIORITY.  SEC. 40.   THE TAXES THUS ASSESSED SHALL BECOME AT
ONCE A DEBT DUE TO THE  ...  CITY  ...  AND COUNTY FROM THE PERSONS TO
WHOM THEY ARE ASSESSED  ...  .  AND ALL PERSONAL TAXES HEREAFTER LEVIED
OR ASSESSED SHALL ALSO BE A FIRST LIEN  ...  ON ALL PERSONAL PROPERTY
OF SUCH PERSONS SO ASSESSED  ...  AND SO REMAIN UNTIL PAID, WHICH SAID
TAX LIENS SHALL TAKE PRECEDENCE OVER ALL OTHER CLAIMS, ENCUMBRANCES AND
LIENS UPON SAID PERSONAL PROPERTY WHATSOEVER  ...  ."    THE PERTINENT
PARTS OF THE CHARTER OF THE CITY OF DETROIT, UNDER WHICH THAT CITY
ACTED, ARE SET FORTH IN THE MARGIN.  (FN11)  BRIEFLY SUMMARIZED, THEY
PROVIDE THAT "ALL REAL AND PERSONAL PROPERTY WITHIN THE CITY, SUBJECT
TO TAXATION BY THE LAWS OF MICHIGAN, SHALL BE ASSESSED AT ITS TRUE CASH
VALUE, AND THAT ALL CITY TAXES SHALL BE DUE AND PAYABLE ON THE
FIFTEENTH DAY OF JULY IN EACH YEAR, AND ON THAT DATE SHALL BECOME A
LIEN ON THE PROPERTY TAXED"; THAT THE "OWNERS OR PERSONS IN POSSESSION"
OF PERSONAL PROPERTY SHALL PAY THE TAXES ASSESSED THEREON BUT IN CASE
ANY OTHER PERSON, "BY AGREEMENT OR OTHERWISE," OUGHT TO HAVE PAID THE
TAX THE PERSON IN POSSESSION WHO HAS PAID THE SAME "MAY RECOVER THE
AMOUNT FROM THE PERSON WHO OUGHT TO HAVE PAID THE SAME" IN AN ACTION OF
ASSUMPSIT, OR MAY DEDUCT THE AMOUNT FROM RENTS DUE OR TO BECOME DUE;
AND THAT IF THE "TAXES WHICH ARE ASSESSED AGAINST THE PROPERTY" ARE NOT
PAID BY THE 26TH DAY OF AUGUST THE CITY TREASURER "SHALL FORTHWITH LEVY
UPON AND SELL AT PUBLIC AUCTION THE PERSONAL PROPERTY"; THAT THE
PERSONAL PROPERTY TAXES "IN ADDITION TO BEING A LIEN UPON THE PROPERTY
ASSESSED SHALL BECOME A DEBT AGAINST THE OWNER FROM THE TIME OF THE
LISTING OF THE PROPERTY FOR ASSESSMENT, AND SHALL REMAIN A DEBT AGAINST
THE OWNER OF THE PROPERTY OR HIS ESTATE AFTER HIS DEATH, UNTIL THE SAME
ARE PAID." 

WE FAIL TO SEE HOW IT COULD BE MORE PLAINLY STATED THAT THESE TAXES
ARE AD VALOREM TAXES ON THE PROPERTY.  ONE CANNOT PROFITABLY ELABORATE
A TRUTH SO EVIDENT.  AND THE MICHIGAN COURTS HAVE REPEATEDLY SO HELD. 
CITY OF DETROIT V. PHILLIP, 313 MICH. 211, 213, 20 N.W.2D 868, 869;
PINGREE V. AUDITOR GENERAL, SUPRA.  CF. CRAWFORD V. KOCH, 169 MICH.
372, 379, 135 N.W. 339, 342; IN RE EVER KRISP FOOD PRODUCTS CO., 307
MICH. 182, 196, 11 N.W.2D 852, 856.  ACTUALLY THE PLEADINGS FORMALLY
ADMIT THAT THIS IS SO.  (FN12) 

PETITIONERS STRIDENTLY ARGUE THAT THE LANGUAGE IN SEC. 211.40 OF THE
MICHIGAN COMP. LAWS SAYING THAT "THE TAXES THUS ASSESSED SHALL BECOME
AT ONCE A DEBT DUE TO THE  ...  CITY  ...  AND COUNTY FROM THE PERSONS
TO WHOM THEY ARE ASSESSED," AND THE LANGUAGE IN SECS. 1 AND 7 OF TIT.
VI, C. IV, OF THE DETROIT CHARTER, SAYING THAT "THE OWNERS OR PERSONS
IN POSSESSION OF ANY PERSONAL PROPERTY SHALL PAY ALL TAXES ASSESSED
THEREON AND IF HE SHALL PAY THE SAME HE MAY RECOVER THE AMOUNT FROM THE
PERSON WHO OUGHT TO HAVE PAID THE SAME  ...  ," SHOWS THAT THE TAX IS
NOT UPON THE MATERIALS BUT IS, RATHER, UPON THE "OWNERS OR PERSONS IN
POSSESSION."  THIS ARGUMENT OVERLOOKS THE FACT THAT SEC. 211.40
CONTINUES, SAYING THAT "ALL PERSONAL TAXES HEREAFTER LEVIED OR ASSESSED
SHALL ALSO BE A FIRST LIEN  ...  ON ALL PERSONAL PROPERTY OF SUCH
PERSONS SO ASSESSED  ...  AND SO REAMIN UNTIL PAID."  THE ARGUMENT ALSO
OVERLOOKS THE FACT THAT TIT. VI, C. IV, SEC. 1 OF THE DETROIT CHARTER
FURTHER PROVIDES THAT "ALL CITY TAXES SHALL BE DUE AND PAYABLE ON THE
FIFTEENTH DAY OF JULY IN EACH YEAR, AND ON THAT DATE SHALL BECOME A
LIEN ON THE PROPERTY TAXED," AS DOES SEC. 26; AND SEC. 27 SAYS "ALL
CITY TAXES UPON PERSONAL PROPERTY  ...  IN ADDITION TO BEING A LIEN
UPON THE PROPERTY ASSESSED SHALL BECOME A DEBT AGAINST THE OWNER FROM
THE TIME OF THE LISTING OF THE PROPERTY FOR ASSESSMENT, AND SHALL
REMAIN A DEBT AGAINST THE OWNER OF THE PROPERTY  ...  UNTIL THE SAME
ARE PAID."  SEE NOTE 11.  THUS, THOUGH THE MICHIGAN STATUTE MAKES THE
TAX A DEBT OF THE "OWNER OR PERSON IN POSSESSION," IT ALSO MAKES THE
TAX "A LIEN ON THE PROPERTY TAXED," AND THE DETROIT CHARTER IN ADDITION
TO MAKING THE TAX A DEBT "AGAINST THE OWNER" MAKES IT "A LIEN UPON THE
PROPERTY ASSESSED."  MOREOVER, THE PRECISE QUESTION WAS SPECIFICALLY
RULED BY THIS COURT IN UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174,
WHERE IT WAS SAID: 

"WHILE PERSONAL LIABILITY FOR THE PERSONAL PROPERTY TAX MAY BE AND
SOMETIMES IS IMPOSED, THE POWER TO TAX IS PREDICATED UPON JURISDICTION
OF THE PROPERTY, NOT UPON JURISDICTION OF THE PERSON OF THE OWNER,
WHICH OFTEN IS LACKING WITHOUT IMPAIRMENT OF THE POWER TO TAX.  IN BOTH
THEORY AND PRACTICE THE PROPERTY IS THE SUBJECT OF THE TAX AND STANDS
AS SECURITY FOR ITS PAYMENT."  ID., AT 184.  "BUT IN ALL OF THESE CASES
(FN13) WHAT WE HAVE DENIED IS IMMUNITY FOR THE CONTRACTOR'S OWN
PROPERTY, PROFITS, OR PURCHASES.  WE HAVE NOT HELD EITHER THAT THE
GOVERNMENT COULD BE TAXED OR ITS CONTRACTORS TAXED BECAUSE PROPERTY OF
THE GOVERNMENT WAS IN THEIR HANDS."  ID., AT 186.  "WE THINK, HOWEVER,
THAT THE GOVERNMENT'S PROPERTY INTERESTS ARE NOT TAXABLE EITHER TO IT
OR TO ITS BAILEE."  ID., AT 187.  "A STATE MAY TAX PERSONAL PROPERTY
AND MIGHT WELL TAX IT TO ONE IN WHOSE POSSESSION IT WAS FOUND, BUT IT
COULD HARDLY TAX ONE OF ITS CITIZENS BECAUSE OF MONEYS OF THE UNITED
STATES WHICH WERE IN HIS POSSESSION AS  ...  AGENT, OR CONTRACTOR.  WE
HOLD THAT GOVERNMENT-OWNED PROPERTY, TO THE FULL EXTENT OF THE
GOVERNMENT'S INTEREST THEREIN, IS IMMUNE FROM TAXATION, EITHER AS
AGAINST THE GOVERNMENT ITSELF OR AS AGAINST ONE WHO HOLDS IT AS A
BAILEE."  ID., AT 188-189. 

PETITIONERS FURTHER ARGUE THAT THE DETROIT ASSESSOR'S ACTION IN
WRITING ON THE TAX ROLL, IN THIS INSTANCE, THE WORDS "ASSESSED SUBJECT
TO PRIOR RIGHTS OF THE FEDERAL GOVERNMENT" SHOWS THAT THE TAX IS NOT ON
THE GOVERNMENT'S INTEREST, IF ANY, IN THE MATERIALS.  IT PRINCIPALLY
RELIES UPON S.R.A. V. MINNESOTA, 327 U.S. 558, AND CITY OF NEW
BRUNSWICK V. UNITED STATES, 276 U.S. 547.  WHILE THOSE CASES, IN AN
ABSTRACT SENSE, ARE RELEVANT TO THE POINT AS URGED BY PETITIONERS,
CONCRETELY THEY ARE INAPPOSITE (FN14) FOR IN EACH OF THOSE INSTANCES
THE TAX WAS ASSESSED DIRECTLY UPON PROPERTY BENEFICIALLY OWNED BY THIRD
PARTIES, WHILE HERE THE TAX IS DIRECTLY ASSESSED ON PROPERTY
BENEFICIALLY OWNED BY THE GOVERNMENT.  MOREOVER, "RENUNCIATION OF ANY
LIEN ON GOVERNMENT PROPERTY ITSELF, WHICH COULD NOT BE SUSTAINED IN ANY
EVENT, HARDLY ESTABLISHES THAT IT IS NOT BEING TAXED ...  ."  UNITED
STATES V. ALLEGHENY COUNTY, SUPRA, AT 187.  FURTHERMORE, INASMUCH AS
THE GOVERNMENT IN THIS CASE BENEFICIALLY OWNED THE ENTIRE INTEREST IN
THE MATERIALS AND THE DETROIT TAX WAS ASSESSED "SUBJECT TO" THE
GOVERNMENT'S INTEREST THEREIN, IT WOULD SEEM TO FOLLOW THAT THE DETROIT
TAX IN QUESTION WAS NEVER IN FACT ASSESSED AGAINST ANYONE. 

IT, THEREFORE, SEEMS INESCAPABLE THAT THE TAX HERE INVOLVED WAS AN AD
VALOREM TAX ON THE PROPERTY OF THE GOVERNMENT. 

   III. 

SINCE THE LANDMARK CASE OF M'CULLOCH V. MARYLAND, 4 WHEAT.  316, NO
LEGAL PRINCIPLE HAS BEEN MORE FIRMLY ESTABLISHED THAN THAT PROPERTY
OWNED BY THE FEDERAL GOVERNMENT IS CONSTITUTIONALLY IMMUNE FROM DIRECT
TAXATION BY A STATE.  I AGREE WITH THE MAJORITY THAT THIS, OF COURSE,
DOES NOT MEAN THAT TAXES DIRECTLY IMPOSED UPON THIRD PARTIES - SUCH AS
AGENTS, CONTRACTORS OR EMPLOYEES - WHO MAY BE DOING BUSINESS WITH THE
GOVERNMENT, SHARE THE GOVERNMENT'S IMMUNITY EVEN THOUGH THE ECONOMIC
BURDEN OF THE TAX, THROUGH HIGHER PRICES AND THE LIKE, MAY ULTIMATELY
FALL UPON THE GOVERNMENT (FN15) FOR SUCH "IS BUT A NORMAL INCIDENT OF
THE ORGANIZATION WITHIN THE SAME TERRITORY OF TWO INDEPENDENT TAXING
SOVEREIGNTIES."  ALABAMA V. KING & BOOZER, 324 U.S. 1, 9.  IN THAT CASE
THIS COURT UPHELD A STATE SALES TAX IMPOSED, NOT DIRECTLY UPON THE
GOVERNMENT, BUT, RATHER, DIRECTLY UPON A GOVERNMENT CONTRACTOR RELATING
TO MATERIALS PURCHASED BY HIM FOR USE IN THE PERFORMANCE OF A
GOVERNMENT CONTRACT.  (FN16)  THE CASE OF KERN-LIMERICK, INC. V.
SCURLOCK, 347 U.S. 110, MAKES THE DISTINCTION CLEAR.  IN THAT CASE THE
GOVERNMENT CONTRACTOR WAS AUTHORIZED TO AND DID PURCHASE, AS AGENT OF
AND DIRECTLY FOR THE UNITED STATES, CERTAIN TRACTORS WHICH THE
CONTRACTOR WAS PERMITTED TO USE IN THE PERFORMANCE OF HIS "COST-PLUS
FIXED-FEE" CONTRACT WITH THE GOVERNMENT.  THE PURCHASER WAS THE
GOVERNMENT AND IT PAID THE VENDOR FOR AND TOOK TITLE TO THE TRACTORS. 
THE STATE LAW REQURIED THE VENDOR TO COLLECT FROM THE VENDEE, AND REMIT
TO THE STATE, A SALES TAX ON LOCAL SALES.  THE VENDOR, AT THE REQUEST
OF THE GOVERNMENT, PAID THE TAX ON THESE SALES UNDER PROTEST AND SUED
FOR REFUND.  THE STATE SUPREME COURT SUSTAINED THE TAX.  ON CERTIORARI
THIS COURT REVERSED, HOLDING THAT THE SALE WAS DIRECTLY TO THE
GOVERNMENT AND THAT THE TAX WAS IMPOSED DIRECTLY UPON THE GOVERNMENT
WHICH WAS IMMUNE FROM STATE TAXATION. 

UNDER THE FACTS AND CIRCUMSTANCES HERE WE THINK THE CASE OF UNITED
STATES V. ALLEGHENY COUNTY, SUPRA, IS ENTIRELY CONTROLLING.  THERE,
MESTA MACHINE COMPANY OWNED A FACTORY IN PENNSYLVANIA SUITABLE FOR THE
MANUFACTURE OF ORDNANCE REQUIRED BY THE GOVERNMENT.  THE GOVERNMENT
ENTERED INTO A CONTRACT WITH MESTA UNDER WHICH THE LATTER UNDERTOOK TO
MAKE AND DELIVER GUNS TO THE GOVERNMENT AT A FIXED PRICE.  MESTA LACKED
SOME OF THE NECESSARY MACHINE TOOLS TO DO THE CONTEMPLATED WORK.  THE
CONTRACT PROVIDED THAT THE GOVERNMENT WOULD, AND IT DID, FURNISH
VARIOUS LATHES AND OTHER MACHINES, WHICH WERE "LEASED" TO MESTA AND
INSTALLED IN ITS FACTORY BY BEING "BOLTED ON CONCRETE FOUNDATIONS AND
COULD BE REMOVED WITHOUT DAMAGE TO THE BUILDING."  ID., AT 179.  THE
CONTRACT FURTHER PROVIDED THAT IF MESTA, AFTER USING EVERY EFFORT SHORT
OF LITIGATION TO PROCURE EXEMPTION OR REFUND, SHOULD BE COMPELLED TO
PAY ANY STATE, COUNTY OR MUNICIPAL TAX UPON THE GOVERNMENT-OWNED
MACHINERY, THE GOVERNMENT WOULD REIMBURSE MESTA FOR THAT AMOUNT. 
SUBSEQUENTLY ALLEGHENY COUNTY REVISED MESTA'S PREVIOUSLY DETERMINED
ASSESSMENT FOR AD VALOREM TAXES BY ADDING THERETO THE VALUE OF THE
GOVERNMENT-OWNED MACHINERY AND ASSESSED AN ADDITIONAL TAX ON THAT
ACCOUNT.  MESTA PROTESTED AND EXHAUSTED ADMINISTRATIVE REMEDIES WITHOUT
AVAIL AND THEN SUED FOR REFUND.  THE UNITED STATES INTERVENED.  THE
TRIAL COURT HELD THAT THE MACHINERY IN QUESTION "WAS 'OWNED BY THE
UNITED STATES' AND SO FOR CONSTITUTIONAL REASONS COULD NOT BE
INCLUDED."  ID., AT 180.  THE SUPREME COURT OF PENNSYLVANIA REVERSED,
AND REINSTATED THE ASSESSMENT AND TAX.  IT ACKNOWLEDGED THAT THE
GOVERNMENT-OWNED PROPERTY WAS "'BEYOND THE PALE OF TAXATION' BY A
STATE" (IBID.), BUT THOUGHT THAT THE TAX WAS NOT AGAINST THE UNITED
STATES BUT WAS ASSESSED AGAINST MESTA, AS A PART OF ITS REAL ESTATE,
AND CONSTITUTED A DEBT OF MESTA AND A LIEN ON ITS REAL ESTATE, BUT NOT
A DEBT OF THE GOVERNMENT NOR A LIEN ON ITS CHATTELS.  THE CASE CAME
HERE ON APPEAL AND THIS COURT REVERSED, SAYING, INTER ALIA: 

"IT IS NOT CONTENDED THAT THE SCHEME OF TAXATION EMPLOYED BY
PENNSYLVANIA IS ANYTHING OTHER THAN THE OLD AND WIDELY USED AD VALOREM
GENERAL PROPERTY TAX  ...  .  THIS FORM OF TAXATION IS NOT REGARDED
PRIMARILY AS A FORM OF PERSONAL TAXATION BUT RATHER AS A TAX AGAINST
THE PROPERTY AS A THING.  ITS PROCEDURES ARE MORE NEARLY ANALOGOUS TO
PROCEDURES IN REM THAN TO THOSE IN PERSONAM.  WHILE PERSONAL LIABILITY
FOR THE TAX MAY BE AND SOMETIMES IS IMPOSED, THE POWER TO TAX IS
PREDICATED UPON JURISDICTION OF THE PROPERTY, NOT UPON JURISDICTION OF
THE PERSON OF THE OWNER, WHICH OFTEN IS LACKING WITHOUT IMPAIRMENT OF
THE POWER TO TAX.  IN BOTH THEORY AND PRACTICE THE PROPERTY IS THE
SUBJECT OF THE TAX AND STANDS AS SECURITY FOR ITS PAYMENT."  ID., AT
184. 

"THE ASSESSORS SIMPLY AND FORTHRIGHTLY VALUED MESTA'S LAND AS LAND,
AND THE GOVERNMENT'S MACHINES AS MACHINERY, AND ADDED THE LATTER TO THE
FORMER.  WE DISCERN LITTLE THEORETICAL DIFFERENCE, AND NO PRACTICAL
DIFFERENCE AT ALL, BETWEEN WHAT WAS DONE AND WHAT WOULD BE DONE IF THE
MACHINERY WERE TAXED IN FORM.  ITS FULL VALUE WAS ASCERTAINED AND ADDED
TO THE BASE TO WHICH THE ANNUAL RATES WOULD APPLY FOR COUNTY, CITY,
BOROUGH, TOWN, TOWNSHIP, SCHOOL, AND POOR PURPOSES. 

"WE HOLD THAT THE SUBSTANCE OF THIS PROCEDURE IS TO LAY AN AD VALOREM
GENERAL PROPERTY TAX ON PROPERTY OWNED BY THE UNITED STATES."  ID., AT
185. 

THE FOREGOING DEMONSTRATES, I THINK, THAT THE GOVERNMENT OWNED THE
MATERIALS ON THE ASSESSMENT DATE; THAT THE TAX WAS IMPOSED ON THOSE
MATERIALS; THAT THE TAX WAS A GENERAL AD VALOREM TAX; AND THAT THE
GOVERNMENT WAS CONSTITUTIONALLY IMMUNE FROM SUCH TAXATION BY THE
STATE. 

THESE ARE MY REASONS FOR DISSENTING, AND, UPON THEM, I WOULD AFFIRM
THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  IN THE PERIOD BEGINNING AUGUST 10 AND ENDING DECEMBER 31, 1951,
PARTIAL PAYMENTS WERE MADE TO MURRAY, BY THE GOVERNMENT, UNDER THE
KAISER PRIME CONTRACT IN THE TOTAL AMOUNT OF $163,949.20, AND UNDER THE
CURTISS-WRIGHT CONTRACT IN THE TOTAL AMOUNT OF $510,827.67, AGGREGATING
$674,776.87, AND ON THE LATTER DATE REQUESTS FOR FURTHER PARTIAL
PAYMENTS IN THE AMOUNT OF $569,211.09 WERE OUTSTANDING AND BEING
PROCESSED. 

FN2  IT THERE CONTENDED THAT MATERIALS OF THE VALUE OF $2,043,670,
INCLUDED IN THE ASSESSMENT AGAINST IT AND ITS PERSONAL PROPERTY, WERE
OWNED BY THE FEDERAL GOVERNMENT AND WERE THEREFORE CONSTITUTIONALLY
IMMUNE FROM STATE TAXATION, AND THAT THE ADDITIONAL TAX ASSESSED ON
ACCOUNT THEREOF OF $80,287.62 WAS VOID. 

FN3  IT APPEARS THAT DETROIT PERSONAL PROPERTY TAXES ARE PAYABLE IN
TWO INSTALLMENTS.  THE FIRST TWO SUITS (NOS. 12108 AND 12482) WERE
BROUGHT AGAINST THE CITY OF DETROIT FOR REFUND OF THE FIRST AND SECOND
HALVES, RESPECTIVELY, OF THE TAXES SO PAID UNDER PROTEST.  THE THIRD
SUIT (NO. 12483) WAS BROUGHT AGAINST THE COUNTY OF WAYNE FOR REFUND OF
THE TAXES SO PAID TO IT UNDER PROTEST. 

FN4  PETITIONERS, HOWEVER, CONTEND THAT THE PARTIAL PAYMENT
PROVISIONS OF THE SUBCONTRACTS ARE INVALID AS BEYOND THE POWER OF THE
GOVERNMENT TO MAKE.  THEY RELY PRINCIPALLY UPON THE PROVISIONS OF THE
ARMED SERVICES PROCUREMENT ACT OF 1947, C. 65, 62 STAT. 21, AND
PARTICULARLY UPON THE LANGUAGE IN SEC. 5(A) AND (B) THEREOF SAYING, IN
PERTINENT PART:    "(A)  THE AGENCY HEAD MAY MAKE ADVANCE PAYMENTS
UNDER NEGOTIATED CONTRACTS  ...  IN ANY AMOUNT NOT EXCEEDING THE
CONTRACT PRICE  ...  PROVIDED, THAT ADVANCE PAYMENTS SHALL BE MADE ONLY
UPON ADEQUATE SECURITY  ...  .  (B) THE TERMS GOVERNING ADVANCE
PAYMENTS MAY INCLUDE AS SECURITY PROVISION FOR, AND UPON INCLUSION OF
SUCH PROVISION THERE SHALL THEREBY BE CREATED, A LIEN IN FAVOR OF THE
GOVERNMENT, PARAMOUNT TO ALL OTHER LIENS, UPON  ...  SUCH OF THE
MATERIAL AND OTHER PROPERTY ACQUIRED FOR PERFORMANCE OF THE CONTRACT AS
THE PARTIES SHALL AGREE." 

THEY THEREFORE ARGUE THAT THE GOVERNMENT IS NOT EMPOWERED TO ENTER
INTO CONTRACTS TO MAKE "PARTIAL PAYMENTS" FOR THE PURCHASE OF MATERIALS
AS WAS DONE HERE.  THIS ARGUMENT FAILS TO RECOGNIZE THE LONG-EXISTING
AND WELL-ESTABLISHED DISTINCTION BETWEEN "ADVANCE PAYMENTS" DEALT WITH
IN SEC. 5 AND "PARTIAL PAYMENTS."  AT THE TIME THE ACT WAS PASSED THE
TERMS "ADVANCE PAYMENTS" AND  PARTIAL PAYMENTS" HAD LONG SINCE BECOME
TERMS OF ART IN GOVERNMENT PROCUREMENT LAWS AND REGULATIONS.  (SEE
JOINT RESOLUTION NO. 24, MAY 5, 1894, 28 STAT. 582; ACT OF AUGUST 22,
1911, C. 42, 37 STAT. 32; ACT OF OCTOBER 6, 1917, C. 79, SEC. 5, 40
STAT. 345, 383; ACT OF JUNE 28, 1940, C. 440, 54 STAT. 676; ACT OF JULY
2, 1940, C. 508, 54 STAT. 712; FIRST WAR POWERS ACT, 1941, C. 593, 55
STAT. 838, SEC. 201; EXECUTIVE ORDER 9001 (DECEMBER 27, 1941), 6 FED.
REG. 6787; WAR DEPARTMENT PROCUREMENT REGULATIONS (JULY 1, 1942), SECS.
81.321, 81.331, 81.347, 81.348, 7 FED. REG. 6098, 6105, 6108, 6112,
6113; WAR DEPARTMENT PROCUREMENT REGULATIONS (AUGUST 25, 1945), SECS.
803.321, 803.330, 803.331, 10 FED. REG. 10449, 10501-10503, 10507
10508; ARMY PROCUREMENT REGULATIONS (NOVEMBER 18, 1947) SECS. 804.400
804.407, 805.405, 805.407-2(A)(B), 12 FED.  REG. 7692-7693, 7700
7705.)  THE TWO TERMS ARE NOT SYNONYMOUS.  IT HAS LONG BEEN RECOGNIZED
AND UNDERSTOOD THAT AN "ADVANCE PAYMENT" IS A LOAN BY THE GOVERNMENT
AND CAN BE MADE "ONLY UPON ADEQUATE SECURITY" AS PROVIDED IN SEC. 5 OF
THE ARMED SERVICES PROCUREMENT ACT, BUT "PARTIAL PAYMENTS" ARE PAYMENTS
MADE BY THE GOVERNMENT IN PURCHASE OF MATERIALS AND ARE AUTHORIZED WHEN
OWNERSHIP THERETO VESTS IN THE GOVERNMENT.  ARMY PROCUREMENT
REGULATIONS (NOVEMBER 18, 1947), SECS. 804.400-7, 805.405, 805.407
2(A)(B), 12 FED. REG. 7692-7693, 7700, 7704-7705.  THE DISTINCTION IS
MADE CLEAR IN ARMED SERVICES PROCUREMENT REGULATIONS OF NOVEMBER 23,
1950 (32 CFR (1949 ED.)  SEC.  402.501), SAYING:

"ADVANCE PAYMENTS SHALL BE DEEMED TO BE PAYMENTS MADE BY THE
GOVERNMENT TO A CONTRACTOR IN THE FORM OF LOANS OR ADVANCES PRIOR TO
AND IN ANTICIPATION OF COMPLETE PERFORMANCE UNDER A CONTRACT.  ADVANCE
PAYMENTS ARE TO BE DISTINGUISHED FROM 'PARTIAL PAYMENTS' AND 'PROGRESS
PAYMENTS' AND OTHER PAYMENTS MADE BECAUSE OF PERFORMANCE OR PART
PERFORMANCE OF A CONTRACT." 

THE BILL WHICH BECAME THE ARMED SERVICES PROCUREMENT ACT OF 1947 WAS
INTRODUCED AT A TIME WHEN THERE WERE EXISTING WAR DEPARTMENT
PROCUREMENT REGULATIONS DESCRIBING AND MAKING PROVISIONS FOR BOTH
"ADVANCE PAYMENTS" AND "PARTIAL PAYMENTS."  THE LATTER PROVISIONS
REQUIRED THAT TITLE TO ALL MATERIALS ACQUIRED BY THE CONTRACTOR FOR
PERFORMANCE OF THE CONTRACT SHOULD VEST IN THE GOVERNMENT ON THE MAKING
OF SUCH "PARTIAL PAYMENTS."  WAR DEPARTMENT PROCUREMENT REGULATIONS,
AUGUST 25, 1945, SECS. 803.330-803.331, 10 FED. REG. 10507-10508. 
AGAINST THIS HISTORICAL BACKGROUND THE TERMS OF SEC. 5 OF THE ARMED
SERVICES PROCUREMENT ACT OF 1947 CANNOT BE CONSTRUED TO PROHIBIT THE
MAKING OF "PARTIAL PAYMENTS" BY THE GOVERNMENT TO A CONTRACTOR IN
RESPECT TO MATERIALS PROCURED FOR PERFORMANCE OF A GOVERNMENT CONTRACT
WHEN TITLE TO THOSE MATERIALS, BY THE TERMS OF THE CONTRACT, VESTS IN
THE GOVERNMENT.  THESE WERE NEGOTIATED CONTRACTS MADE IN PURSUANCE OF
SEC. 2, C. 65, OF THE ARMED SERVICES PROCUREMENT ACT OF 1947 (62 STAT.
21), AND BEING SUCH, CONGRESS, BY SEC. 4 OF THAT ACT, HAS EXPRESSLY
GRANTED WIDE DISCRETION TO THE AGENCY HEAD IN DETERMINING THE TYPE OF
CONTRACT WHICH WILL PROMOTE THE BEST INTERESTS OF THE GOVERNMENT. 
THERE BEING NO PROHIBITION AGAINST THE USE IN GOVERNMENT CONTRACTS OF
PARTIAL PAYMENT PROVISIONS MADE IN PURCHASE OF MATERIALS, CONTRACTING
OFFICERS ARE FREE TO FOLLOW BUSINESS PRACTICES.  KERN-LIMERICK, INC. V.
SCURLOCK, 347 U.S. 110, 116.   THUS, THERE IS NO MERIT IN PETITIONERS'
CLAIM THAT THE GOVERNMENT WAS NOT EMPOWERED TO AGREE TO THE PARTIAL
PAYMENT PROVISIONS IN THESE CONTRACTS. 

FN5  A SIMILAR CONTENTION WAS MADE IN THAT CASE, AND IN REJECTING IT
THIS COURT SAID: "WE TURN TO EXAMINE THE VALIDITY OF THE ARGUMENT THAT
THE NAMING OF THE GOVERNMENT AS PURCHASER WAS ONLY COLORABLE AND LEFT
THE CONTRACTOR THE REAL PURCHASER AND THE TRANSACTION SUBJECT TO THE
ARKANSAS TAX.  ALABAMA V. KING & BOOZER, 314 U.S. 1, IS RELIED UPON
PRIMARILY.  WE CONSIDER THIS ARGUMENT UNDER THE ASSUMPTION, MADE BY THE
SUPREME COURT OF ARKANSAS, THAT THE CONTRACT WAS DESIGNED TO AVOID THE
NECESSITY IN THIS COST-PLUS CONTRACT OF THE ULTIMATE PAYMENT OF A STATE
TAX BY THE UNITED STATES  ...  .  WE FIND THAT THE PURCHASER UNDER THIS
CONTRACT WAS THE UNITED STATES  ...  .  (WE DO NOT THINK THAT THE
DRAFTING OF THE CONTRACT BY THE NAVY DEPARTMENT TO CONSERVE GOVERNMENT
FUNDS, IF THAT WAS THE PURPOSE, CHANGES THE CHARACTER OF THE
TRANSACTION."  347 U.S., AT 116, 122. 

FN6  IT WAS STIPULATED THAT IN THE NEGOTIATION OF THE SUBCONTRACTS
THE "PARTIES DID NOT CONSIDER THE POSSIBLE AVOIDANCE OF CITY AND COUNTY
AD VALOREM AND PERSONAL PROPERTY TAXES AS AN ELEMENT IN THEIR DECISION
AS TO WHETHER OR NOT THE STANDARD PARTIAL PAYMENT CLAUSE (REFERRED TO
IN PROCUREMENT REGULATIONS) SHOULD BE INSERTED IN THESE CONTRACTS." 

FN7  THAT INSURANCE COVERAGE PROVISION READS AS FOLLOWS:  "ALL REAL
AND PERSONAL PROPERTY OF THE INSURED, INCLUDING MANUSCRIPTS, MECHANICAL
DRAWINGS, TOOLS, DIES, JIGS AND PATTERNS, THEIR OWN, OR HELD BY THEM IN
TRUST OR ON COMMISSION, OR ON CONSIGNMENT, OR SOLD BUT NOT DELIVERED OR
REMOVED, OR FOR WHICH THEY ARE LIABLE, ALL WHILE LOCATED IN AND/OR ON
THE PREMISES OCCUPIED BY THE INSURED." 

FN8  IN RE READ-YORK, INC., 152 F.2D 313, 316, 317; DOUGLAS AIRCRAFT
CO. V. BYRAM, 57 CAL.  APP. 2D 311, 134 P.2D 15; CRAIG V. INGALLS
SHIPBUILDING CORP., 192 MISS.  254, 5 SO. 2D 676; STATE EX REL.
SUPERIOR SHIPBUILDING CO. V. BECKLEY, 175 WIS. 272, 185 N.W. 199; AND
CF.  KERN-LIMERICK, INC. V. SCURLOCK, 347 U.S. 110, 116-122; UNITED
STATES V. ALLEGHENY COUNTY, 322 U.S. 174, 178, 183; IN RE AMERICAN
BOILER WORKS, 220 F.2D 319, 321, AND WRIGHT AERONAUTICAL CORP. V.
GLANDER CORP., 151 OHIO ST. 29, 84 N.E.2D 483. 

FN9  THE ONE EXCEPTION IS AMERICAN MOTORS CORP. V. CITY OF KENOSHA,
274 WIS. 315, 80 N.W.2D 363, BUT EVEN THAT CASE FAILS TO MENTION THAT
COURT'S EARLIER DECISION TO THE CONTRARY IN STATE EX REL. SUPERIOR
SHIPBUILDING CO. V. BECKLEY, SUPRA. 

FN10  MICH. CONST., ART. X, SEC. 3. 

FN11  TIT. VI, C. II, SEC. 1.  "ALL REAL AND PERSONAL PROPERTY WITHIN
THE CITY SUBJECT TO TAXATION BY THE LAWS OF THIS STATE SHALL BE
ASSESSED AT ITS TRUE CASH VALUE  ...  ."  THE FOLLOWING SECTIONS APPEAR
IN TIT. VI, C. IV: 

"SECTION 1.  ALL CITY TAXES SHALL BE DUE AND PAYABLE ON THE FIFTEENTH
DAY OF JULY IN EACH YEAR, AND ON THAT DATE SHALL BECOME A LIEN ON THE
PROPERTY TAXED  ...  AND THE OWNERS OR PERSONS IN POSSESSION OF ANY
PERSONAL PROPERTY SHALL PAY ALL TAXES ASSESSED THEREON." 

"SEC. 7.  IN CASE ANY PERSON BY AGREEMENT OR OTHERWISE OUGHT TO PAY
SUCH TAX, OR ANY PART THEREOF, THE PERSON IN POSSESSION WHO SHALL PAY
THE SAME MAY RECOVER THE AMOUNT FROM THE PERSON WHO OUGHT TO HAVE PAID
THE SAME, IN AN ACTION OF ASSUMPSIT AS FOR MONEYS PAID OUT AND EXPENDED
IN HIS BENEFIT, OR MAY DEDUCT THE AMOUNT FROM ANY RENT DUE OR TO BECOME
DUE TO THE PERSON WHO SHOULD HAVE PAID SUCH TAX." 

"SEC. 26.  ON AND AFTER THE TWENTY-SIXTH DAY OF AUGUST IN EACH YEAR
...  THE CITY TREASURER SHALL ENFORCE THE COLLECTION OF ALL UNPAID
TAXES WHICH ARE ASSESSED AGAINST THE PROPERTY OR VALUE OTHER THAN REAL
ESTATE.  IF SUCH TAXES SHALL REMAIN UNPAID THE CITY TREASURER SHALL
FORTHWITH LEVY UPON AND SELL AT PUBLIC AUCTION THE PERSONAL PROPERTY OF
ANY PERSON REFUSING OR NEGLECTING TO PAY SUCH TAX, OR COLLECT THE SAME
THROUGH THE COURTS  ...  .  ALL CITY TAXES UPON PERSONAL PROPERTY SHALL
BECOME ON SAID FIFTEENTH DAY OF JULY A LIEN THEREON AND SO REMAIN UNTIL
PAID, AND NO TRANSFER OF THE PERSONAL PROPERTY ASSESSED SHALL OPERATE
TO DIVEST OR DESTROY SUCH LIEN. 

"SEC. 27.  ALL CITY TAXES UPON PERSONAL PROPERTY  ...  IN ADDITION TO
BEING A LIEN UPON THE PROPERTY ASSESSED SHALL BECOME A DEBT AGAINST THE
OWNER FROM THE TIME OF THE LISTING OF THE PROPERTY FOR ASSESSMENT, AND
SHALL REMAIN A DEBT AGAINST THE OWNER OF THE PROPERTY OF HIS ESTATE
AFTER HIS DEATH, UNTIL THE SAME ARE PAID." 

FN12  PARAGRAPH 3 OF THE COMPLAINT IN THE FIRST ACTION ALLEGED - AND
IT IS STIPULATED THAT THE COMPLAINTS IN THE THREE CASES WERE THE SAME -
THAT THE TAX WAS ASSESSED AS "THE AD VALOREM TAX ON THE PERSONAL
PROPERTY OF THIS PLAINTIFF FOR THE YEAR 1952  ...  ."  THE ANSWER OF
THE CITY "ADMITS THE ALLEGATIONS IN PARAGRAPH THREE" AND THE ANSWER OF
THE COUNTY "ADMITS  ...  THAT THE ASSESSED VALUATION PLACED UPON THE
PERSONAL PROPERTY OF PLAINTIFF BY THE CITY AND ADOPTED BY THE COUNTY
WAS THE AD VALOREM TAX ON THE PERSONAL PROPERTY OF PLAINTIFF FOR THE
YEAR 1952." 

FN13  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134; GRAVES V. NEW
YORK EX REL. O'KEEFE, 306 U.S. 466, AND ALABAMA V. KING & BOOZER, 314
U.S. 1. 

FN14  IN S.R.A. V. MINNESOTA, THE GOVERNMENT HAD SOLD REAL ESTATE IN
MINNESOTA TO S.R.A., INC., UNDER AN INSTALLMENT CONTRACT FOR A DEED BUT
HAD RETAINED LEGAL TITLE ONLY AS SECURITY AND WAS, IN EFFECT, A
MORTGAGEE.  S.R.A. TOOK POSSESSION AND IMPROVED THE LAND.  AFTERWARD
THE STATE ASSESSED GENERAL AD VALOREM TAXES UPON THE PROPERTY "SUBJECT
TO FEE TITLE REMAINING IN THE UNITED STATES."  S.R.A. CLAIMED EXEMPTION
FROM THE TAX ON THE GROUND THAT TITLE TO THE PROPERTY WAS IN THE UNITED
STATES.  THIS COURT UPHELD THE TAX BECAUSE THE CONTRACT OF SALE HAD
TRANSFERRED TO THE PURCHASER THE EQUITY IN THE PROPERTY UPON WHICH
ALONE THE TAX WAS LEVIED.  CITY OF NEW BRUNSWICK V. UNITED STATES IS
ALMOST IDENTICAL TO THE S.R.A. CASE AND VARIES FROM IT IN NO
SUBSTANTIAL RESPECT. 

FN15  SEE TRINITYFARM CO. V. GROSJEAN, 291 U.S. 466, WHICH SUSTAINED
AN EXCISE TAX IMPOSED BY A STATE DIRECTLY UPON A GOVERNMENT CONTRACTOR
ON ACCOUNT OF GASOLINE CONSUMED BY HIM IN THE PERFORMANCE OF A
GOVERNMENT CONTRACT; JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 160,
WHICH UPHELD A GROSS RECEIPTS TAX IMPOSED BY A STATE DIRECTLY UPON A
GOVERNMENT CONTRACTOR ON ACCOUNT OF MATERIALS PURCHASED BY IT FOR ITS
USE IN PERFORMING THE CONTRACT; HELVERING V. GERHARDT, 304 U.S. 405,
WHICH SUSTAINED AN INCOME TAX LEVIED DIRECTLY UPON A CONSTRUCTION
ENGINEER AND TWO ASSISTANT GENERAL MANAGERS, EMPLOYEES OF AN AGENCY OF
THE UNITED STATES, IN RESPECT OF THEIR SALARIES FROM THE UNITED STATES;
GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466, IS PRECISELY LIKE THE
GERHARDT CASE; ESSO STANDARD OIL CO. V. EVANS, 345 U.S. 495, WHICH
UPHELD A STATE PRIVILEGE TAX IMPOSED DIRECTLY BY A STATE UPON A STORER
OF GASOLINE EVEN THOUGH, BY CONTRACT, THE GOVERNMENT, WHICH HAD STORED
ITS GASOLINE WITH THE STORER, ASSUMED LIABILITY FOR ALL STATE TAXES. 

FN16  IN ITS COMPANION CASE OF CURRY V. UNITED STATES, 314 U.S. 14,
THE COURT FOLLOWED THE SAME PRINCIPLE IN HOLDING THAT GOVERNMENT COST
PLUS CONTRACTORS WHO HAD IMPORTED INTO THE STATE CERTAIN MATERIALS
WHICH THEY USED IN THE PERFORMANCE OF THEIR CONTRACT WERE NOT ENTITLED
TO SHARE THE GOVERNMENT'S CONSTITUTIONAL IMMUNITY FROM A STATE USE TAX,
AND SAID:  "IF THE STATE LAW LAYS THE TAX UPON THEM RATHER THAN THE
GOVERNMENT WITH WHOM THEY ENTER INTO A COST-PLUS CONTRACT LIKE THE
PRESENT ONE, THEN IT AFFECTS THE GOVERNMENT  ...  ONLY AS THE ECONOMIC
BURDEN IS SHIFTED TO IT THROUGH OPERATION OF THE CONTRACT."  ID., AT
18.  AS IN KING & BOOZER, THE IMPACT OF THE TAX UPON THE GOVERNMENT
DERIVED FROM THE GOVERNMENT'S VOLUNTARY ASSUMPTION, OR, AS SAID BY THE
COURT, "THROUGH OPERATION OF THE CONTRACT." 
..END :






















PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES 355 U.S. 534 



NO. 23.  ARGUED JANUARY 7, 1958 - DECIDED MARCH 3, 1958 - 141 F. SUPP.
168, AFFIRMED. 


CALIFORNIA ENACTED, AND ITS PUBLIC UTILITIES COMMISSION PLAINLY
INDICATED AN INTENT TO ENFORCE, A STATUTE WHICH WOULD HAVE MADE
CONTINGENT UPON THE COMMISSION'S PRIOR APPROVAL CONTINUATION OF THE
FEDERAL GOVERNMENT'S LONG-ESTABLISHED PRACTICE, SANCTIONED BY FEDERAL
LAW AND REGULATIONS, OF NEGOTIATING WITH COMMON CARRIERS SPECIAL RATES
FOR THE SHIPMENT OF GOVERNMENT PROPERTY WITHIN THE STATE.  THE UNITED
STATES SUED IN A FEDERAL COURT FOR A DECLARATORY JUDGMENT DECLARING THE
STATE STATUTE UNCONSTITUTIONAL INSOFAR AS IT PROHIBITS CARRIERS FROM
TRANSPORTING GOVERNMENT PROPERTY AT RATES OTHER THAN THOSE APPROVED BY
THE COMMISSION.  HELD: 

1.  THE FEDERAL COURT HAD JURISDICTION OF THE CASE AND POWER TO GRANT
THE RELIEF SOUGHT.  PP. 536-540. 

(A)  THERE WAS AN "ACTUAL CONTROVERSY" BETWEEN THE UNITED STATES AND
THE COMMISSION WITHIN THE MEANING OF THE DECLARATORY JUDGMENT ACT, 28
U.S.C. SEC. 2201.  PP. 536-539. 

(B)  IN THE CIRCUMSTANCES OF THIS CASE, THE GOVERNMENT'S COMPLAINT
WAS NOT BARRED BY ITS FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES.  PP.
539-540. 

(C)  INJUNCTIVE RELIEF IN THIS CASE WAS NOT BARRED BY 28 U.S.C. SEC.
1342.  P. 540. 

2.  WHEN CONGRESS AUTHORIZES ITS PROCUREMENT AGENTS TO NEGOTIATE
RATES, A STATE MAY NOT REQUIRE THAT THOSE RATES BE APPROVED BY IT.  THE
UNITED STATES CANNOT BE SUBJECT TO DISCRETIONARY AUTHORITY OF A STATE
AGENCY FOR THE TERMS ON WHICH, BY GRACE, IT CAN MAKE ARRANGEMENTS FOR
SERVICES TO BE RENDERED IT.  PP. 540-546. 

PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

C. 1966, PROVIDES IN PART: 

"EVERY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS PART MAY
TRANSPORT, FREE OR AT REDUCED RATES: 

"(A)  PERSONS FOR THE UNITED STATES,  ...  . 

     *         *         *    *         * 

"THE COMMISSION MAY PERMIT COMMON CARRIERS TO TRANSPORT PROPERTY AT
REDUCED RATES FOR THE UNITED STATES, STATE, COUNTY, OR MUNICIPAL
GOVERNMENTS, TO SUCH EXTENT AND SUBJECT TO SUCH CONDITIONS AS IT MAY
CONSIDER JUST AND REASONABLE.  NOTHING HEREIN SHALL PREVENT ANY COMMON
CARRIER SUBJECT TO THE PROVISIONS OF THIS PART FROM TRANSPORTING
PROPERTY FOR THE UNITED STATES, STATE, COUNTY, OR MUNICIPAL
GOVERNMENTS, AT REDUCED RATES NO LOWER THAN RATES WHICH LAWFULLY MAY BE
ASSESSED AND CHARGED BY ANY OTHER SUCH COMMON CARRIER OR BY HIGHWAY
PERMIT CARRIERS AS DEFINED IN THE HIGHWAY CARRIERS' ACT." 

THERE IS A LARGE VOLUME OF MILITARY TRAFFIC BETWEEN POINTS IN
CALIFORNIA.  FOR MANY YEARS THE UNITED STATES HAS NEGOTIATED SPECIAL
AGREEMENTS WITH CARRIERS AS TO THE RATES GOVERNING THE TRANSPORTATION
OF GOVERNMENT PROPERTY.  PROPERTY FOR THE ARMED SERVICES HAS USUALLY
BEEN TRANSPORTED AT NEGOTIATED RATES SUBSTANTIALLY EQUAL TO OR LOWER
THAN THOSE APPLICABLE TO REGULAR COMMERCIAL SHIPMENTS. 

THE UNITED STATES FILED THIS SUIT FOR DECLARATORY RELIEF, 28 U.S.C.
SEC. 2201, IN A THREE-JUDGE DISTRICT COURT, ASKING THAT SEC. 530 BE
DECLARED UNCONSTITUTIONAL INSOFAR AS IT PROHIBITS CARRIERS FROM
TRANSPORTING GOVERNMENT PROPERTY AT RATES OTHER THAN THOSE APPROVED BY
THE COMMISSION AND REQUESTING RELIEF BY INJUNCTION. 

THE DISTRICT COURT RENDERED JUDGMENT FOR THE UNITED STATES, 141 F.
SUPP. 168.  THE CASE IS HERE BY APPEAL, 28 U.S.C. SECS. 1253, 2102(B). 
WE NOTED PROBABLE JURISDICTION.  352 U.S. 924. 

WE ARE MET AT THE OUTSET WITH A CONTENTION THAT THERE IS NO "ACTUAL
CONTROVERSY" BETWEEN THE UNITED STATES AND THE COMMISSION WITHIN THE
MEANING OF 28 U.S.C. SEC. 2201.  IF SO, THERE IS A FATAL
CONSTITUTIONAL, AS WELL AS STATUTORY, DEFECT BECAUSE OF THE MANNER IN
WHICH THE JUDICIAL POWER IS DEFINED BY ART. III, SEC. 2, CL. 1, OF THE
CONSTITUTION.  SEE AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227.  THE
ARGUMENT IS THAT THERE IS NO ALLEGATION THAT THE COMMISSION HAD DONE OR
HAD THREATENED TO DO ANYTHING ADVERSE TO THE UNITED STATES OR ITS
AGENT. 

PRIOR TO 1955, SEC. 530 PROVIDED THAT EVERY COMMON CARRIER "MAY
TRANSPORT, FREE OR AT REDUCED RATES:  ...  PROPERTY FOR THE UNITED
STATES  ...  ."  (FN1)  IN 1955, SEC. 530 WAS AMENDED TO ELIMINATE THAT
PROVISION AND SUBSTITUTE THE PROVISION ALREADY NOTED THAT THE
COMMISSION "MAY PERMIT" COMMON CARRIERS TO TRANSPORT PROPERTY OF THE
UNITED STATES AT REDUCED RATES "TO SUCH EXTENT AND SUBJECT TO SUCH
CONDITIONS AS IT MAY CONSIDER JUST AND REASONABLE."  AS ALSO NOTED
ABOVE, THIS AMENDMENT FURTHER PROVIDED THAT NO COMMON CARRIER SHALL BE
PREVENTED FROM TRANSPORTING PROPERTY OF THE UNITED STATES "AT REDUCED
RATES NO LOWER THAN RATES WHICH LAWFULLY MAY BE ASSESSED AND CHARGED BY
ANY OTHER SUCH COMMON CARRIER OR BY HIGHWAY PERMIT CARRIERS  ... ." 
(FN2)  PRIOR TO THIS AMENDMENT THE COMMISSION HAD AUTHORIZED HIGHWAY
PERMIT CARRIERS TO DEVIATE FROM THE PRESCRIBED MINIMUM RATES IN
CONNECTION WITH THE TRANSPORTATION OF PROPERTY FOR THE ARMED FORCES OF
THE UNITED STATES.  TO PREVENT THE CONTINUATION OF THIS EXEMPTION THE
COMMISSION ON AUGUST 16, 1955, CANCELED THE DEVIATION AUTHORIZATION FOR
PERMIT CARRIERS AS OF SEPTEMBER 7, 1955, THE EFFECTIVE DATE OF THE
AMENDMENT TO SEC. 530.  ON REQUEST OF THE DEPARTMENT OF DEFENSE THE
COMMISSION POSTPONED THE EFFECTIVENESS OF THAT CANCELLATION UNTIL
DECEMBER 5, 1955.  ON NOVEMBER 29, 1955, THE COMMISSION DENIED A
FURTHER EXTENSION, STATING: 

"THE PROVISION OF ITEM NO. 20 OF MINIMUM RATE TARIFF NO. 2 WHICH
PERMITS CARRIERS TO DEVIATE FROM THE MINIMUM RATES IN CONNECTION WITH
THE TRANSPORTATION OF PROPERTY FOR THE ARMED FORCES OF THE UNITED
STATES CONSTITUTES AN EXCEPTION WHICH WAS ESTABLISHED PRIOR TO THE
AMENDMENT OF SECTION 530.  SO LONG AS THIS PROVISION REMAINS IN EFFECT,
NOT ONLY THE PERMITTED CARRIERS BUT ALSO THE COMMON CARRIERS ARE
WITHOUT THE RATE REGULATION WHICH CLEARLY WAS CONTEMPLATED UNDER THE
RECENT LEGISLATIVE ENACTMENT  ...  . 

"THE INTENT OF THE LEGISLATURE SHOULD BE CARRIED OUT WITHOUT FURTHER
DELAY.  ACCORDINGLY, THE PETITION FOR FURTHER POSTPONEMENT WILL BE
DENIED.  THIS ACTION WILL IN NO WAY PRECLUDE CARRIERS FROM FILING
APPLICATIONS FOR SUCH RATE EXCEPTIONS AS THEY MAY CONSIDER TO BE JUST
AND REASONABLE." 

AS A RESULT OF THIS DENIAL, COMMON CARRIERS COULD NO LONGER TRANSPORT
ANY UNITED STATES PROPERTY AT LOWER NEGOTIATED RATES WITHOUT COMMISSION
APPROVAL.  FOR SEC. 486 REQUIRES COMMON CARRIERS TO FILE THEIR RATES
WITH THE COMMISSION.  SECTION 493 PROVIDES THAT NO COMMON CARRIER SHALL
ENGAGE IN TRANSPORTATION UNTIL ITS SCHEDULES OF RATES HAVE BEEN FILED. 
COLLECT, OR RECEIVE A DIFFERENT COMPENSATION FOR THE TRANSPORTATION OF
PERSONS OR PROPERTY  ...  THAN THE APPLICABLE RATES  ...  SPECIFIED IN
ITS SCHEDULES FILED  ... ."  (A LIKE PROVISION IS CONTAINED IN ART.
XII, SEC. 22 OF THE CALIFORNIA CONSTITUTION.)  MOREOVER THE PUBLIC
UTILITIES CODE PROVIDES PENALTIES FOR VIOLATIONS OF ITS PROVISIONS AND
ORDERS ISSUED THEREUNDER.  SECS. 2107, 2112.  THESE PENALTIES ARE
APPLICABLE NOT ONLY TO THE CARRIER BUT TO SHIPPERS AS WELL.  CALIFORNIA
PUBLIC UTILITIES CODE, SEC. 2112.  AS STATED BY THE DISTRICT COURT, "IF
A UNITED STATES OFFICER WERE TO NEGOTIATE WITH A CARRIER FOR 'REDUCED
RATES' WITHOUT PERMITTING THE DEFENDANT TO DETERMINE WHETHER IT
'CONSIDERED' THE CONDITIONS OF THE CONTRACT 'JUST AND REASONABLE', HE
COULD BE THROWN INTO THE COUNTY JAIL."  141 F. SUPP., AT 186. 

THE COMMISSION HAS PLAINLY INDICATED AN INTENT TO ENFORCE THE ACT;
AND PROHIBITION OF THE STATUTE IS SO BROAD AS TO DENY THE UNITED STATES
THE RIGHT TO SHIP AT REDUCED RATES, UNLESS THE COMMISSION FIRST GIVES
ITS APPROVAL.  THE CASE IS, THEREFORE, QUITE DIFFERENT FROM PUBLIC
SERVICE COMM'N V. WYCOFF CO., 344 U.S. 237, WHERE A CARRIER SOUGHT
RELIEF IN A FEDERAL COURT AGAINST A STATE COMMISSION IN ORDER "TO GUARD
AGAINST THE POSSIBILITY," ID., AT 244, THAT THE COMMISSION WOULD ASSUME
JURISDICTION.  HERE THE STATUTE LIMITS TRANSPORTATION AT REDUCED RATES
UNLESS THE COMMISSION FIRST GIVES APPROVAL.  THE CONTROVERSY IS PRESENT
AND CONCRETE - WHETHER THE UNITED STATES HAS THE RIGHT TO OBTAIN
TRANSPORTATION SERVICE AT SUCH RATES AS IT MAY NEGOTIATE OR WHETHER IT
CAN DO SO ONLY WITH STATE APPROVAL. 

THERE IS A LARGE GROUP OF CASES INVOLVING THE DOCTRINE OF PRIMARY
JURISDICTION WHICH REQUIRES THE COMPLAINANT FIRST TO SEEK RELIEF IN THE
ADMINISTRATIVE PROCEEDING BEFORE A REMEDY WILL BE SUPPLIED BY THE
COURTS.  SEE FAR EAST CONFERENCE V. UNITED STATED, 342 U.S. 570; UNITED
STATES V. WESTERN PACIFIC R. CO., 352 U.S. 59.   IN RELATED SITUATIONS
WE HAVE INSISTED THAT AN AGGRIEVED PARTY PURSUE HIS ADMINISTRATIVE
REMEDY BEFORE THE STATE AGENCY AND THE STATE COURT PRIOR TO BRINGING
HIS COMPLAINT TO THE FEDERAL COURT, SO THAT THE TRUE INTERPRETATION OF
THE STATE LAW MAY BE KNOWN AND ITS ACTUAL, AS OPPOSED TO ITS
THEORETICAL, IMPACT ON THE LITIGANT AUTHORITATIVELY DETERMINED BEFORE
THE FEDERAL COURT UNDERTAKES TO SIT IN JUDGMENT.  SEE ALABAMA
FEDERATION OF LABOR V. MCADORY, 325 U.S.  450; LEITER MINERALS, INC.,
V. UNITED STATES, 352 U.S. 220. 

THESE CASES ARE INAPPOSITE.  WE KNOW THE STATUTE APPLIES TO SHIPMENTS
OF THE UNITED STATES.  WE KNOW THAT IT IS UNLAWFUL TO SHIP AT REDUCED
RATES UNLESS THE COMMISSION APPROVES THOSE RATES.  THE QUESTION IS
WHETHER THE UNITED STATES CAN BE SUBJECTED TO THE DISCRETIONARY
AUTHORITY OF A STATE AGENCY FOR THE TERMS ON WHICH, BY GRACE, IT CAN
MAKE ARRANGEMENTS FOR SERVICES TO BE RENDERED IT. THAT ISSUE IS A
CONSTITUTIONAL ONE THAT THE COMMISSION CAN HARDLY BE EXPECTED TO
ENTERTAIN.  IF, AS IN AIRCRAFT & DIESEL EQUIPMENT CORP. V. HIRSCH, 331
U.S. 752, AND ALLEN V. GRAND CENTRAL AIRCRAFT CO., 347 U.S. 535, AN
ADMINISTRATIVE PROCEEDING MIGHT LEAVE NO REMNANT OF THE CONSTITUTIONAL
QUESTION, THE ADMINISTRATIVE REMEDY PLAINLY SHOULD BE PURSUED.  BUT
WHERE THE ONLY QUESTION IS WHETHER IT IS CONSTITUTIONAL TO FASTEN THE
ADMINISTRATIVE PROCEDURE ONTO THE LITIGANT, THE ADMINISTRATIVE AGENCY
MAY BE DEFIED AND JUDICIAL RELIEF SOUGHT AS THE ONLY EFFECTIVE WAY OF
PROTECTING THE ASSERTED CONSTITUTIONAL RIGHT.  IN THAT POSTURE THE CASE
IS KIN TO THOSE THAT HOLD THAT "FAILURE TO APPLY FOR A LICENSE UNDER AN
ORDINANCE WHICH ON ITS FACE VIOLATES THE CONSTITUTION DOES NOT PRECLUDE
REVIEW IN THIS COURT OF A JUDGMENT OF CONVICTION UNDER SUCH AN
ORDINANCE."  STAUB V. CITY OF BAXLEY, 355 U.S. 313, 319, AND CASES
CITED; THOMAS V. COLLINS, 323 U.S. 516. 

IT IS ARGUED THAT 28 U.S.C. SEC. 1342, BARS THE GRANT OF RELIEF IN
THIS CASE.  IT PROVIDES THAT THE FEDERAL COURTS "SHALL NOT ENJOIN,
SUSPEND OR RESTRAIN THE OPERATION OF, OR COMPLIANCE WITH, ANY ORDER
AFFECTING RATES CHARGEABLE BY A PUBLIC UTILITY AND MADE BY A STATE
ADMINISTRATIVE AGENCY OR A RATE-MAKING BODY OF A STATE POLITICAL
SUBDIVISION, WHERE: 

"(1)  JURISDICTION IS BASED SOLELY ON DIVERSITY OF CITIZENSHIP OR
REPUGNANCE OF THE ORDER TO THE FEDERAL CONSTITUTION  ...  ." 

ASSUMING, ARGUENDO, THAT THE ACT APPLIES TO THE SOVEREIGN WHO MADE
IT, THERE IS NO VIOLATION OF ITS MANDATE IN THE RELIEF GRANTED HERE. 
IN THE PRESENT CASE, THE CHALLENGE IS NOT TO RATE "ORDER" BUT TO A
STATUTE WHICH REQUIRES THE UNITED STATES TO SUBMIT ITS NEGOTIATED RATES
TO THE CALIFORNIA COMMISSION FOR APPROVAL.  THE UNITED STATES WANTS TO
BE RID OF THE SYSTEM THAT SUBJECTS ITS PROCUREMENT SERVICES TO THAT
FORM OF STATE SUPERVISION. 

WE COME TO THE MERITS.  CONGRESS HAS PROVIDED A COMPREHENSIVE POLICY
GOVERNING PROCUREMENT.  10 U.S.C. (SUPP. V) SECS. 2301-2314.  WHILE
COMPETITIVE BIDDING IS THE GENERAL POLICY, SEC. 2304 PROVIDES THAT "THE
HEAD OF AN AGENCY MAY NEGOTIATE SUCH A PURCHASE OR CONTRACT, IF: 

 *         *         *         *         * 

"(2)  THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO
ADVERTISING. 

     *         *         *         *         * 

"(10)  THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES FOR WHICH
IT IS IMPRACTICABLE TO OBTAIN COMPETITION.  (FN3) 

*         *         *         *         * 

"(12)  THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES WHOSE
PROCUREMENT HE DETERMINES SHOULD NOT BE PUBLICLY DISCLOSED BECAUSE OF
THEIR CHARACTER, INGREDIENTS, OR COMPONENTS; ...  ." 

THE REGULATIONS, PROMULGATED TO CARRY OUT THESE STATUTORY PROVISIONS,
(FN4) ARE NUMEROUS AND EXTENSIVE.  (FN5)  ONE PROVIDES THAT "VOLUME
SHIPMENTS" SHALL BE REFERRED "AT THE EARLIEST PRACTICABLE TIME TO THE
APPROPRIATE MILITARY TRAFFIC MANAGEMENT OFFICE FOR A DETERMINATION OF
THE REASONABLENESS OF APPLICABLE CURRENT RATES AND, WHEN APPROPRIATE,
FOR NEGOTIATION OF ADJUSTED OR MODIFIED RATES."  (FN6) 

THE ARMY REGULATIONS PROVIDE THAT THE "LEAST COSTLY MEANS OF
TRANSPORTATION WILL BE SELECTED WHICH WILL MEET MILITARY REQUIREMENTS
AND STILL BE CONSISTENT WITH GOVERNING PROCUREMENT REGULATIONS AND
TRANSPORTATION POLICIES AS EXPRESSED BY CONGRESS, CONTINGENT UPON
CARRIER ABILITY TO PROVIDE SAFE, ADEQUATE, AND EFFICIENT
TRANSPORTATION."  (FN7)  NAVY REGULATIONS PROVIDE THAT WHEN APPLICABLE
FREIGHT RATES "APPEAR EXCESSIVE" THEY "MAY BE NEGOTIATED FOR MORE
EQUITABLE RATES."  (FN8)  THE AIR FORCE REGULATIONS PROVIDE FOR
NEGOTIATIONS FOR ADUSTMENTS OR MODIFICATIONS OF "COMMERCIAL CARRIERS'
RATES  ...  ONLY AFTER A DETERMINATION HAS BEEN MADE AS TO THE
UNREASONABLENESS, UNJUSTNESS OR OTHERWISE APPARENT UNLAWFULNESS OF
EFFECTIVE RATES  ...  ."  (FN9) 

IT SEEMS CLEAR THAT THESE REGULATIONS - WHICH HAVE THE FORCE OF LAW,
LESLIE MILLER, INC., V. ARKANSAS, 352 U.S. 187; STANDARD OIL CO. V.
JOHNSON, 316 U.S. 481 - SANCTION THE POLICY OF NEGOTIATING RATES FOR
SHIPMENT OF FEDERAL PROPERTY AND ENTRUST THE PROCUREMENT OFFICERS WITH
THE DISCRETION TO DETERMINE WHEN EXISTING RATES (FN10) WILL BE ACCEPTED
AND WHEN NEGOTIATION FOR LOWER RATES WILL BE UNDERTAKEN.  IT ALSO SEEMS
CLEAR THAT UNDER SEC. 530 OF THE CALIFORNIA PUBLIC UTILITIES CODE THIS
DISCRETION OF THE FEDERAL OFFICERS MAY BE EXERCISED AND REDUCED RATES
USED ONLY IF THE COMMISSION APPROVES.  THE QUESTION IS WHETHER
CALIFORNIA MAY IMPOSE THIS RESTRAINT OR CONTROL ON FEDERAL
TRANSPORTATION PROCUREMENT. 

WE LAY TO ONE SIDE THESE CASES WHICH SUSTAIN NONDISCRIMINATORY STATE
TAXES ON ACTIVITIES OF CONTRACTORS AND OTHERS WHO DO BUSINESS FOR THE
UNITED STATES, AS THEIR IMPACT AT MOST IS TO INCREASE THE COSTS OF THE
OPERATION.  SEE, E.G., ESSO STANDARD OIL CO. V. EVANS, 345 U.S. 495;
SMITH V. DAVIS 323 U.S. 111; ALABAMA V. KING & BOOZER, 314 U.S. 1;
JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134.  WE ALSO NEED DO NO MORE
THAN MENTION CASES WHERE, ABSENT A CONFLICTING FEDERAL REGULATION, A
STATE SEEKS TO IMPOSE SAFETY OR OTHER REQUIREMENTS ON A CONTRACTOR WHO
DOES BUSINESS FOR THE UNITED STATES.  SEE, E.G., BALTIMORE & ANNAPOLIS
R. CO. V. LICHTENBERG, 176 MD. 383, 4 A.2D 734, APPEAL DISMISSED, 308
U.S. 525; JAMES STEWART & CO. V. SADRAKULA, 309 U.S. 94.  PENN DAIRIES
V. MILK CONTROL COMM'N, 318 U.S. 261, CAN LIKEWISE BE PUT TO ONE SIDE. 
THERE THE QUESTION, MUCH MOOTED, WAS WHETHER THE FEDERAL POLICY
CONFLICTED WITH THE STATE POLICY FIXING THE PRICE OF MILK WHICH THE
UNITED STATES PURCHASED.  THE COURT CONCLUDED THAT THE STATE REGULATION
"IMPOSES NO PROHIBITION ON THE NATIONAL GOVERNMENT OR ITS OFFICERS." 
ID., AT 270.  HERE, HOWEVER, THE STATE PLACES A PROHIBITION ON THE
FEDERAL GOVERNMENT.  HERE THE CONFLICT BETWEEN THE FEDERAL POLICY OF
NEGOTIATED RATES AND THE STATE POLICY OF REGULATION OF NEGOTIATED RATES
SEEMS TO US TO BE CLEAR.  THE CONFLICT IS AS PLAIN AS IT WAS IN ARIZONA
V. CALIFORNIA, 283 U.S. 423, 451, WHERE A STATE SOUGHT AUTHORITY OVER
PLANS AND SPECIFICATIONS FOR A FEDERAL DAM, IN LESLIE MILLER, INC., V.
ARKANSAS, SUPRA, WHERE STATE STANDARDS REGULATING CONTRACTORS
CONFLICTED WITH FEDERAL STANDARDS FOR THOSE CONTRACTORS, AND IN JOHNSON
V. MARYLAND, 254 U.S. 51, WHERE A STATE SOUGHT TO EXACT A LICENSE
REQUIREMENT FROM A FEDERAL EMPLOYEE DRIVING A MAIL TRUCK.  THE CONFLICT
SEEMS TO US TO BE AS CLEAR AS ANY THAT THE SUPREMACY CLAUSE, ART. VI,
CL. 2, OF THE CONSTITUTION WAS DESIGNED TO RESOLVE.  AS CHIEF JUSTICE
MARSHALL SAID IN M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 427: 

"IT IS OF THE VERY ESSENCE OF SUPREMACY TO REMOVE ALL OBSTACLES TO
ITS ACTION WITHIN ITS OWN SPHERE, AND SO TO MODIFY EVERY POWER VESTED
IN SUBORDINATE GOVERNMENTS, AS TO EXEMPT ITS OWN OPERATIONS FROM THEIR
OWN INFLUENCE." 

THE SERIOUSNESS OF THE IMPACT OF CALIFORNIA'S REGULATION ON THE
ACTION OF FEDERAL PROCUREMENT OFFICIALS IS DRAMATICALLY SHOWN BY THIS
RECORD. 

IT IS THE PRACTICE OF THE GOVERNMENT NOT ONLY TO NEGOTIATE SEPARATE
RATES WHICH VARY FROM THE CLASS OR "PAPER RATE" (FN11) BUT ALSO TO
NEGOTIATE A "FREIGHT ALL KINDS" RATE WHICH WILL COVER HUNDREDS OF
DIVERSE ITEMS FOR THE SUPPLY OF A DIVISION OF THE ARMY OR FOR A VESSEL
THAT ARE NEEDED AT ONE PLACE AT ONE PARTICULAR TIME.  THERE IS NO
PROVISION IN THE CALIFORNIA CODE OR THE REGULATIONS FOR THE MAKING OF
SUCH SHIPMENTS.  THE FINDINGS ARE THAT IF THE CODE IS APPLIED HERE,
THIS TYPE OF ARRANGEMENT WOULD BE ABOLISHED: 

"THIS WOULD MAKE IT NECESSARY FOR THE SHIPPING OFFICERS TO CLASSIFY
THE HUNDREDS AND THOUSANDS OF DIFFERENT ITEMS USED IN MILITARY
OPERATIONS, TO SEGREGATE SUCH ITEMS IN ACCORDANCE WITH PUBLISHED
TARIFFS AND CLASSIFICATIONS, TO REARRANGE THE BOXING AND CRATING OF
SUCH ITEMS IN ORDER TO MEET THE CLASSIFICATIONS AND REQUIREMENTS OF
COMMERCIAL TRAFFIC AND FILL OUT VOLUMINOUS DOCUMENTS.  THIS ADDITIONAL
PROCESS COULD CAUSE DELAYS AS HIGH AS THIRTEEN HOURS IN THE SHIPMENT OF
ONE TRUCKLOAD OR CARLOAD.  IN MANY SITUATIONS A DELAY OF THIS SORT
WOULD SERIOUSLY HAMPER OR DISRUPT THE MILITARY MISSION FOR WHICH THE
SHIPMENT WAS MADE." 

MOREOVER, NO RATES EXIST FOR MUCH OF THE MILITARY TRAFFIC, WHICH
MEANS THAT, UNLESS THE UNITED STATES CAN NEGOTIATE RATES FOR EACH
SHIPMENT, THE SHIPMENTS WILL BE DELAYED FOR COMMISSION ACTION UNLESS
SHIPPED UNDER THE ESTABLISHED RATES WHICH ARE HIGHER THAN NEGOTIATED
RATES. 

GENERAL EDMOND C.R. LASHER OF THE UNITED STATES ARMY, WHO WAS
ASSISTANT CHIEF OF TRANSPORTATION, TESTIFIED AT THE TRIAL: 

"FOR US TO MAKE THESE ARRANGEMENTS AT THE WASHINGTON LEVEL WITH THE
VARIOUS STATES, LET US SAY 48 STATES, WITH VARIETIES OF METHODS TO
FOLLOW, WE WOULD FIND OURSELVES IN AN ADMINISTRATIVE MORASS OUT OF
WHICH WE WOULD NEVER FIGHT OUR WAY, WE WOULD NEVER WIN THE WAR." 
AFFIRMED. 

FN1  CAL. STAT. 1951, C. 764, P. 2045. 

FN2  CALIFORNIA PUBLIC UTILITIES CODE SEC. 3515 DEFINES A "HIGHWAY
PERMIT CARRIER" AS "EVERY HIGHWAY CARRIER OTHER THAN A HIGHWAY COMMON
CARRIER OR A PETROLEUM IRREGULAR ROUTE CARRIER." 

FN3  THE PURPOSE OF THIS SUBSECTION IS "TO PLACE THE MAXIMUM
RESPONSIBILITY FOR DECISIONS AS TO WHEN IT IS IMPRACTICABLE TO SECURE
COMPETITION IN THE HANDS OF THE AGENCY CONCERNED."  S. REP. NO. 571,
80TH CONG., 1ST SESS., P. 8.  THE SENATE REPORT GOES ON TO STATE:  "THE
EXPERIENCES OF THE WAR AND CONTRACTS NEGOTIATED SINCE THE WAR IN THE
FIELDS OF STEVEDORING, SHIP REPAIRS, CHARTERING OF VESSELS, WHERE
PRICES ARE SET BY LAW OR REGULATION, OR WHERE THERE IS A SINGLE SOURCE
OF SUPPLY, HAVE SHOWN CLEARLY THAT THE COMPETITIVE-BID-ADVERTISING
METHOD IS NOT ONLY FREQUENTLY IMPRACTICABLE BUT DOES NOT ALWAYS OPERATE
TO THE BEST INTERESTS OF THE GOVERNMENT.  IT IS, THEREFORE, INTENDED
THAT THIS SECTION SHOULD BE CONSTRUED LIBERALLY AND THAT THE REVIEW OF
THESE CONTRACTS SHOULD BE CONFINED TO THE VALIDITY AND LEGALITY OF THE
ACTION TAKEN AND SHOULD NOT EXTEND TO REVERSAL OF BONA FIDE
DETERMINATIONS OF IMPRACTICABILITY WHERE ANY REASONABLE GROUND FOR SUCH
DETERMINATION EXISTS." 

IT WOULD SEEM, THEREFORE, THAT NEGOTIATION WAS CONTEMPLATED WHERE
RATES, FIXED BY A GOVERNMENT AGENCY, ARE INVOLVED.  AND SEE H.R. REP.
NO. 109, 80TH CONG., 1ST SESS., PP.  8-9.  AS STATED BY W. JOHN KENNEY,
ACTING SECRETARY OF THE NAVY, WHO SUBMITTED THE DRAFT OF THIS BILL: 

"THE PRIMARY PURPOSE OF THE BILL IS TO PERMIT THE WAR AND NAVY
DEPARTMENTS TO AWARD CONTRACTS BY NEGOTIATION WHEN THE NATIONAL DEFENSE
OR SOUND BUSINESS JUDGMENT DICTATES THE USE OF NEGOTIATION RATHER THAN
THE RIGID LIMITATIONS OF FORMAL ADVERTISING, BID, AND AWARD
PROCEDURES."  HEARINGS BEFORE HOUSE COMMITTEE ON ARMED SERVICES ON H.R.
1366, 80TH CONG., 1ST SESS., VOL. 1, P. 425. 

FN4  10 U.S.C. SEC. 3012(G) PROVIDES, "THE SECRETARY OF THE ARMY MAY
PRESCRIBE REGULATIONS TO CARRY OUT HIS FUNCTIONS, POWERS, AND DUTIES
UNDER THIS TITLE."  FOR COMPARABLE PROVISIONS APPLICABLE TO THE NAVY
AND AIR FORCE SEE 10 U.S.C. SEC. 6011 AND 10 U.S.C. SEC. 8012(F)
RESPECTIVELY. 

FN5  ARMED SERVICES PROCUREMENT REGULATIONS, 32 CFR, 1957 CUM. POCKET
SUPP., SEC. 1.108 ET SEQ. 

FN6  ID., SEC. 1.306-10. 

FN7  ARMY REGULATION 55-142, PARA. 2, DATED APRIL 19, 1956. 

FN8  NAVY SHIPPING GUIDE, PART I, ART. 1800(D)(3)(20). 

FN9  AIR FORCE MANUAL 75-1, PARA. 80501(B), DATED JULY 10, 1956. 

FN10  SECTION 22 OF THE INTERSTATE COMMERCE ACT, 24 STAT. 379, AS
AMENDED, 49 U.S.C. SEC.  22, EXEMPTS TRANSPORTATION FOR THE UNITED
STATES FROM THE OBLIGATION TO PAY "THE FULL APPLICABLE COMMERCIAL
RATES," 49 U.S.C. SEC. 65, APPLIES ONLY TO RATES FIXED BY THE
INTERSTATE COMMERCE COMMISSION AND IS MADE EXPRESSLY SUBJECT TO SEC. 22
OF THE INTERSTATE COMMERCE ACT. 

FN11  THE FINDINGS OF THE DISTRICT COURT STATE: 

"UNDER THE THEORY OF RATE REGULATION IN CALIFORNIA AND ELSEWHERE,
EVERY COMMON CARRIER IS REQUIRED TO HAVE IN EXISTENCE AT ALL TIMES A
PUBLISHED RATE TO COVER THE SHIPMENT OF EVERY KNOWN ITEM BETWEEN EVERY
CONCEIVABLE POINT.  THIS RATE STRUCTURE IS KNOWN AS THE CLASS OR 'PAPER
RATE.'  SINCE THE CHANNELS OF COMMERCIAL TRAFFIC ARE REGULAR AND WELL
DEFINED IN ACCORDANCE WITH THE STABILITY OF TRADE, LARGE COMMERCIAL
SHIPPERS SELDOM USE THE CLASS RATE BUT NEGOTIATE RATES WITH THE
CARRIERS KNOWN AS 'COMMERCIAL RATES,' WHICH ARE PECULIARLY SUITED AND
ADAPTED TO THE REQUIREMENTS OF THE COMMERCE INVOLVED.  THESE COMMERCIAL
RATES ARE USUALLY CONSIDERABLY LOWER THAN THE CLASS RATES.  VERY LITTLE
COMMERCIAL TRAFFIC MOVES AT THE CLASS RATE." 

MR. JUSTICE HARLAN, WHOM THE CHIEF JUSTICE AND MR. JUSTICE BURTON
JOIN, DISSENTING. 

I THINK THAT THE COURT MOVES WITH UNNECESSARY HASTE IN STRIKING DOWN
THIS CALIFORNIA STATUTE WHICH WAS INTENDED TO DEAL WITH RATE-CUTTING
PRACTICES OF CALIFORNIA CARRIERS HANDLING THE HEAVY VOLUME OF MILITARY
TRAFFIC IN THAT STATE.  THESE PRACTICES, THE STATE TELLS US, HAVE A
SERIOUSLY DEPRESSING INFLUENCE UPON REVENUES OF CARRIERS AND MIGHT LEAD
TO A DETERIORATION OF THE ECONOMIC POSITION OF THE CALIFORNIA CARRIER
INDUSTRY AS A WHOLE.  TO GUARD AGAINST THIS POSSIBILITY, THE CALIFORNIA
LEGISLATURE AMENDED SEC. 530 OF THE PUBLIC UTILITIES CODE BY EXTENDING
RATE REGULATION TO CARRIERS DEALING WITH THE FEDERAL GOVERNMENT. 
MAINTENANCE OF THE PROPER BALANCE BETWEEN FEDERAL AND STATE CONCERNS IN
THIS AREA SHOULD LEAD US TO PROCEED WITH CAUTION BEFORE DECIDING THAT
THIS REGULATORY STATUTE IS UNCONSTITUTIONAL.  WE SHOULD NOT REACH THIS
CONCLUSION BEFORE GIVING CALIFORNIA AN OPPORTUNITY TO INTERPRET AND
IMPLEMENT THIS ENACTMENT SO THAT WE CAN FAIRLY JUDGE WHETHER IT DOES IN
TRUTH TRESPASS UPON PARAMOUNT FEDERAL INTERESTS.  ACCORDINGLY, I
DISSENT UPON THE SEVERAL GROUNDS GIVEN BELOW. 

                   I. 

ALTHOUGH CONGRESS CAN NO DOUBT FORECLOSE A STATE FROM REGULATION OF
TRANSPORTATION RATES BETWEEN THE GOVERNMENT AND PRIVATE CARRIERS, SUCH
A PURPOSE MUST BE MADE MANIFEST.  THE EXCERPTS FROM FEDERAL PROCUREMENT
STATUTES AND REGULATIONS QUOTED IN THE COURT'S OPINION PROVIDE, IN MY
VIEW, AN INADEQUATE FOUNDATION FOR THE CONCLUSION THAT CONGRESS HAS
DIRECTED PROCUREMENT OFFICERS TO BY-PASS STATE MINIMUM-PRICE OR RATE
REGULATION.  IT IS DIFFICULT TO BELIEVE THAT SO IMPORTANT A DECISION
HAS BEEN TAKEN IN SUCH AN OBSCURE MANNER.  IN CONTRAST TO THE SITUATION
PRESENTED BY THE EXPRESS EXEMPTION IN SEC. 22 OF THE INTERSTATE
COMMERCE ACT, 49 U.S.C. SEC. 22, OF TRANSPORTATION FOR THE UNITED
STATES FROM THE RATE PROVISIONS OF THAT ACT, NO PROCUREMENT STATUTE
DECLARES INAPPLICABLE RATE SCHEDULES COVERING INTRASTATE TRANSPORTATION
PURSUANT TO STATE LAW, AND THERE IS NO INDICATION THAT FEDERAL
PROCUREMENT OFFICERS WERE NOT TO OPERATE WITHIN THE FRAMEWORK OF STATE
ECONOMIC REGULATION IN NEGOTIATING TO SECURE THE BEST TERMS POSSIBLE. 
THE STATUTES AND REGULATIONS RELIED UPON BY THE COURT AS A
MANIFESTATION OF CONGRESSIONAL INTENT TO DISPLACE STATE ECONOMIC
REGULATION ARE SUBSTANTIALLY THE SAME AS THOSE FOUND WANTING IN THIS
RESPECT IN PENN DAIRIES, INC., V. MILK CONTROL COMM'N OF PENNSYLVANIA,
318 U.S. 261, WHERE THIS COURT SAID (AT 275): 

"AN UNEXPRESSED PURPOSE OF CONGRESS TO SET ASIDE STATUTES OF THE
STATES REGULATING THEIR INTERNAL AFFAIRS IS NOT LIGHTLY TO BE INFERRED
AND OUGHT NOT TO BE IMPLIED WHERE THE LEGISLATIVE COMMAND, READ IN THE
LIGHT OF ITS HISTORY, REMAINS AMBIGUOUS.  CONSIDERATIONS WHICH LEAD US
NOT TO FAVOR REPEAL OF STATUTES BY IMPLICATION (CITING CASES) SHOULD BE
AT LEAST AS PERSUASIVE WHEN THE QUESTION IS ONE OF THE NULLIFICATION OF
STATE POWER BY CONGRESSIONAL LEGISLATION." 

                                        II. 

IN THE ABSENCE OF AN EXPRESS FEDERAL POLICY TO NULLIFY STATE
REGULATION, THIS COURT'S DECISIONS MAKE CLEAR THAT THE FACT THAT THE
GOVERNMENT MAY NOT HENCEFORTH RECEIVE MORE ADVANTAGEOUS SHIPPING RATES
IN CALIFORNIA THAN THOSE APPLICABLE TO OTHER INTRASTATE SHIPPERS IS NOT
SUFFICIENT BY ITSELF TO VITIATE THIS STATE STATUTE.  THE FACT THAT THE
ECONOMIC INCIDENCE OF STATE PRICE REGULATION OR TAXATION FALLS UPON THE
GOVERNMENT NO LONGER ALONE GIVES RISE TO AN IMPLIED CONSTITUTIONAL
IMMUNITY FROM SUCH REGULATION.  E.G., PENN DAIRIES, SUPRA, AT 269;
ALABAMA V. KING & BOOZER, 314 U.S. 1; JAMES V. DRAVO CONTRACTING CO.,
302 U.S. 134.  IN PENN DAIRIES, THE COURT UPHELD A PENNSYLVANIA LAW
SETTING MINIMUM PRICES FOR MILK AS APPLIED TO A DEALER SELLING MILK IN
PENNSYLVANIA TO THE UNITED STATES FOR CONSUMPTION AT MILITARY CAMPS.  I
CAN SEE NO CONSTITUTIONAL DISTINCTION BETWEEN STATE REGULATION OF THE
PRICE OF MILK THE GOVERNMENT MUST BUY AND OF THE PRICE AT WHICH THE
GOVERNMENT MUST SHIP THE MILK IT HAS BOUGHT.  AND SURELY, INSOFAR AS
ECONOMIC EFFECT IS CONCERNED, NOTHING TURNS ON THE CHARACTER OF THE
COMMODITY SHIPPED, WHETHER IT BE MILK OR A HYDROGEN BOMB.  APART FROM
DISCRIMINATORY APPLICATION OF SUCH A REGULATORY STATUTE TO THE
GOVERNMENT AND OTHER CONSIDERATIONS NOT PERTINENT HERE, THE
CONSTITUTIONAL VALIDITY OF THIS CALIFORNIA STATUTE DEPENDS ENTIRELY ON
ITS NONECONOMIC IMPACT UPON THE GOVERNMENT - THAT IS, UPON A
DETERMINATION WHETHER THIS STATUTE INTERFERES WITH THE PERFORMANCE OF
GOVERNMENTAL FUNCTIONS BY MILITARY PERSONNEL OR OTHER FEDERAL
EMPLOYEES.  SEE JOHNSON V. MARYLAND, 254 U.S. 51; ARIZONA V.
CALIFORNIA, 283 U.S. 423. 

III. 

THE ASPECTS OF THE CALIFORNIA STATUTE WHICH THE COURT FINDS FATAL TO
ITS CONSTITUTIONALITY SIMPLY REFLECT ANTICIPATORY VIEWS AS TO HOW THE
RATE REGULATION WILL WORK IN PRACTICE.  I CONSIDER THIS TO BE AN
INSUFFICIENT BASIS ON WHICH TO PROCEED TO THE SERIOUS BUSINESS OF
STRIKING DOWN STATE REGULATION, AND I BELIEVE THAT FINAL JUDGMENT AS TO
CONSTITUTIONALITY SHOULD BE DEFERRED UNTIL WE KNOW HOW CALIFORNIA
INTENDS TO APPLY SEC. 530 OF ITS PUBLIC UTILITIES CODE AND TO
ACCOMMODATE THE STATE INTEREST IN A STABLE RATE STRUCTURE WITH THE
FEDERAL INTEREST IN UNIMPEDED PERFORMANCE OF MILITARY AND OTHER
GOVERNMENTAL FUNCTIONS.  IN VIEW OF THE FACT THAT THE POSSIBLE EFFECT
OF SEC. 530 IN IMPOSING AN INCREASED ECONOMIC BURDEN UPON THE
GOVERNMENT DOES NOT IN ITSELF REQUIRE INVALIDATION OF THIS STATUTE, IT
IS TO MY MIND NO ANSWER TO SAY THAT A DECISION UPON THE STATUTE'S
CONSTITUTIONALITY NEED NOT BE DEFERRED PENDING RECOURSE BY THE
GOVERNMENT TO THE STATE COMMISSION AND COURTS, BECAUSE THE STATUTE IS
UNCONSTITUTIONAL ON ITS FACE IN THAT IT SUBJECTS GOVERNMENT
ARRANGEMENTS WITH CALIFORNIA CARRIERS TO CONTROL BY THE COMMISSION. 
INDEED, THE VERY INTENTION OF THE CALIFORNIA LEGISLATURE IN MAKING
SPECIAL PROVISION FOR THE GOVERNMENT TO NEGOTIATE WITH THE COMMISSION
WAS TO ENABLE IT TO SECURE ADVANTAGEOUS RATES WHICH WOULD NOT EVEN HAVE
BEEN POSSIBLE IF THE RATE SCHEDULES WERE BINDING UPON ALL SHIPPERS
WITHOUT THE POSSIBILITY OF ADMINISTRATIVELY GRANTED EXCEPTIONS.  CF.
PENN DAIRIES, SUPRA. 

THE PURPOSE IN REQUIRING THE GOVERNMENT TO PROCEED THROUGH THE STATE
COMMISSION IN THE FIRST INSTANCE, THE PATH WHICH I THINK SHOULD BE
FOLLOWED HERE, WOULD NOT BE TO PERMIT THE STATE COMMISSION OR COURTS TO
PASS UPON THE STATUTE'S CONSTITUTIONALITY.  THAT OF COURSE IS THE
ULTIMATE RESPONSIBILITY OF THIS COURT.  RATHER THE PURPOSE WOULD BE TO
DETERMINE IF THE STATUTE CAN BE SO IMPLEMENTED AS TO OVERCOME
OBJECTIONS WHICH THE GOVERNMENT COULD PRESENT TO THE COMMISSION.  AFTER
SUCH PROCEEDINGS, WE WOULD NOT BE COMPELLED TO CONSIDER THE
CONSTITUTIONAL QUESTION UNDER THE UNINFORMED VIEW AS TO THE ACTUAL
OPERATION OF THE STATUTE WHICH WE NOW HAVE.  MORE THAN ABSTRACT OR
POTENTIAL IMPINGEMENT UPON, OR THE MERE POSSIBILITY OF INTERFERENCE
WITH, SOME FEDERAL FUNCTION SHOULD BE SHOWN BEFORE WE ARE JUSTIFIED IN
THWARTING OTHERWISE LEGITIMATE STATE POLICY.    SOME EXAMPLES OF THE
FACTORS STRESSED BY THE GOVERNMENT AS INDICATING THE OBSTRUCTIVE EFFECT
OF THIS STATUTE UPON MILITARY FUNCTIONS SUFFICE, I THINK, TO
DEMONSTRATE THAT THE COURT HAS ACTED PREMATURELY IN PASSING ON
CONSTITUTIONALITY AT THIS STAGE:  (1)  THE GOVERNMENT HAS CONTENDED
THAT DISPROPORTIONATELY HIGH RATES WOULD BE IMPOSED ON MILITARY TRAFFIC
BECAUSE SPECIAL "COMMODITY" RATES NORMALLY HAVE NOT BEEN ESTABLISHED
FOR MANY ARTICLES PECULIAR TO MILITARY TRANSPORTATION, THUS REQUIRING
RECOURSE TO HIGHER "CLASS" RATES.  THE STATE HAS COUNTERED WITH THE
SUGGESTION THAT THE COMMISSION MIGHT AUTHORIZE RETROACTIVE RATES WHICH
WOULD ENABLE THE GOVERNMENT IN EFFECT TO ACHIEVE COMMODITY RATES AFTER
SHIPMENTS OF PRESENTLY UNSCHEDULED ITEMS.  (2) IT IS ALLEGED THAT
EXCESSIVE DELAY OF VITAL MILITARY SHIPMENTS MAY RESULT IF ARMY OFFICERS
ARE REQUIRED TO DETERMINE IN ADVANCE APPLICABLE RATES FOR ALL ITEMS IN
A VARIED SHIPMENT.  AGAIN THE STATE SUGGESTS THAT RETROACTIVE
DETERMINATION OF RATES AFTER THE SHIPMENT MAY BE THE SOLUTION.  (3) WE
ARE TOLD THAT NATIONAL SECURITY MAY BE PREJUDICED IF THE MILITARY IS
FORCED TO REVEAL THE CONTENT OF PARTICULAR SHIPMENTS TO DETERMINE
APPLICABLE RATES IN EXISTING SCHEDULES, IN LIEU OF FOLLOWING THE
PRESENT PRACTICE OF NEGOTIATING A GENERAL RATE FOR AN ENTIRE SHIPMENT
WITHOUT SPECIFYING ITS CONTENT.  THIS OBVIOUSLY IMPORTANT CONCERN IS
RECOGNIZED BY THE STATE, WHICH EMPHASIZES THE COMMISSION'S ABILITY TO
COPE WITH THIS PROBLEM, AS BY EXEMPTING FROM THE USUAL PROCEDURES UNDER
SEC. 530 ALL SHIPMENTS DECLARED TO BE "SECURITY SHIPMENTS" BY A
RESPONSIBLE FEDERAL AUTHORITY.  (4) THE "FREIGHT ALL KINDS" RATE NOTED
BY THE COURT AS IN CURRENT WIDESPREAD USE IN MILITARY SHIPMENTS IS NOT
EXPRESSLY PROVIDED FOR BY THE CALIFORNIA STATUTE.  APPELLANT, ALTHOUGH
FRANKLY STATING THAT THIS RATE IS A MAJOR VEHICLE FOR THE PRICE-CUTTING
PRACTICES WHICH THE AMENDED SEC. 530 WAS DESIGNED TO PREVENT, RAISES
THE POSSIBILITY THAT A COMPARABLE METHOD LESS PRODUCTIVE OF SUCH
PRACTICES MIGHT BE APPROVED BY THE COMMISSION.  IF SO, MAJOR
ADMINISTRATIVE PROBLEMS PORTRAYED BY THE GOVERNMENT WOULD EVAPORATE. 
(5) THE COURT ADVERTS TO THE POSSIBILITY THAT STATE CRIMINAL STATUTES
PUNISHING CERTAIN PARTIES FOR DEVIATION FROM ESTABLISHED RATES MIGHT BE
APPLIED AGAINST FEDERAL PROCUREMENT OFFICERS.  IT WILL BE TIME ENOUGH
TO DISPOSE OF THIS PROBLEM IF SUCH A PROSECUTION SHOULD EVER BE
BROUGHT, A POSSIBILITY THE STATE HERE EMPHATICALLY DISCARDS. 

I DO NOT, OF COURSE, VENTURE TO PREDICT WHETHER THE COMMISSION MIGHT
HAVE BEEN ABLE TO MEET ALL OBJECTIONS OF THE GOVERNMENT BY RESTRICTING
THE STATUTE TO PURELY ECONOMIC REGULATION IF IT HAD BEEN GIVEN THE
OPPORTUNITY, BUT I DO NOT SEE HOW WE CAN SAY THAT SUCH A POSSIBILITY
DOES NOT EXIST.  IT MAY BE THAT WHAT IS NOW ENVISIONED BY THE
GOVERNMENT WOULD NOT COME TO PASS AT ALL, FOR WE SHOULD NOT ASSUME THAT
CALIFORNIA WILL BE LESS SENSITIVE THAN OTHERS TO THE SERIOUS
CONSIDERATIONS URGED BY THE GOVERNMENT WITH RESPECT TO SHIPMENTS OF
VITAL MILITARY SUPPLIES.  MOREOVER, IT IS HARDLY LIKELY THAT THE
OBJECTIONS ASSERTED AGAINST THE APPLICATION OF THE STATUTE TO MILITARY
SHIPMENTS WOULD HAVE THE SAME FORCE WITH RESPECT TO SHIPMENTS OF
NONMILITARY COMMODITIES BY OTHER GOVERNMENT AGENCIES; YET AS TO THESE
TOO THE COURT ANNULS THE STATUTE. 

UNLESS SOMETHING MORE THAN THE REMOTE POSSIBILITY OF HINDERANCE OF
GOVERNMENT FUNCTIONS IS ENOUGH TO JUSTIFY INVALIDATION OF SUCH STATE
STATUTES, I FAIL TO SEE WHY UNDER THIS DECISION ALL STATE TARIFF
REGULATION IS NOT AUTOMATICALLY INEFFECTIVE AS AGAINST THE FEDERAL
GOVERNMENT.  I WOULD NOT SO EXTEND THE DOCTRINE OF IMPLIED FEDERAL
IMMUNITIES, ESPECIALLY WHEN CONGRESS HAS THE UNDOUBTED POWER TO DEAL
DIRECTLY WITH SUCH MATTERS ACCORDING TO ITS ASSESSMENT OF THE COMPETING
STATE AND FEDERAL INTERESTS INVOLVED.  THE COURT HAS NOT HERETOFORE
GONE TO THE EXTREME OF THIS DECISION, AND I FIND IT ANOMALOUS THAT THE
VERY TERM WHICH WITNESSES A FURTHER DIMINUTION OF THE DOCTRINE OF
IMPLIED INTERGOVERNMENTAL TAX IMMUNITIES SHOULD PRODUCE THIS DECISION. 
SEE, E.G., CITY OF DETROIT V. MURRAY CORP., 355 U.S. 489, DECIDED THIS
DAY. 

                                     IV. 

THIS COURT SHOULD SCRUPULOUSLY WITHHOLD ITS HAND FROM VOIDING STATE
LEGISLATION UNTIL THE EFFECT ON FEDERAL INTERESTS HAS APPEARED WITH
REASONABLE CERTAINTY THORUGH CLARIFYING CONSTRUCTION AND IMPLEMENTATION
OF THE CHALLENGED ENACTMENT BY THE STATE.  PAST DECISIONS OF THE COURT
REFLECT THE APPLICATION OF THIS GENERAL PRINCIPLE IN A VARIETY OF
SITUATIONS INVOLVING STATE STATUTES OR ADMINISTRATIVE ACTION.  RAILROAD
COMM'N OF TEXAS V. PULLMAN CO., 312 U.S. 496, 501; SPECTOR MOTOR
SERVICE, INC., V. MCLAUGHLIN, 323 U.S. 101, 105; LEITER MINERALS, INC.,
V. UNITED STATES, 352 U.S. 220, 228-229.  CF. ALABAMA FEDERATION OF
LABOR V. MCADORY, 325 U.S. 450, 471; PUBLIC SERVICE COMM'N OF UTAH V.
WYCOFF CO., 344 U.S. 237, 246-247.  IN SPECTOR MOTOR, THE COURT STATED:
"AS QUESTIONS OF FEDERAL CONSTITUTIONAL POWER HAVE BECOME MORE AND
MORE INTERTWINED WITH PRELIMINARY DOUBTS ABOUT LOCAL LAW, WE HAVE
INSISTED THAT FEDERAL COURTS DO NOT DECIDE QUESTIONS OF
CONSTITUTIONALITY ON THE BASIS OF PRELIMINARY GUESSES REGARDING LOCAL
LAW."  323 U.S., AT 105.  AND THE LANGUAGE OF THE COURT IN ALABAMA
FEDERATION OF LABOR V. MCADORY, 325 U.S., AT 471, IS VERY MUCH IN POINT
HERE: 

"THE EXTENT TO WHICH THE DECLARATORY JUDGMENT PROCEDURE MAY BE USED
IN THE FEDERAL COURTS TO CONTROL STATE ACTION LIES IN THE SOUND
DISCRETION OF THE COURT ...  .  IT WOULD BE AN ABUSE OF DISCRETION FOR
THIS COURT TO MAKE A PRONOUNCEMENT ON THE CONSTITUTIONALITY OF A STATE
STATUTE  ... WHEN THE COURT IS LEFT IN UNCERTAINTY, WHICH IT CANNOT
AUTHORITATIVELY RESOLVE, AS TO THE MEANING OF THE STATUTE WHEN APPLIED
TO ANY PARTICULAR STATE OF FACTS  ...  .  IN THE EXERCISE OF THIS
COURT'S DISCRETIONARY POWER TO GRANT OR WITHHOLD THE DECLARATORY
JUDGMENT REMEDY IT IS OF CONTROLLING SIGNIFICANCE THAT IT IS IN THE
PUBLIC INTEREST TO AVOID THE NEEDLESS DETERMINATION OF CONSTITUTIONAL
QUESTIONS AND THE NEEDLESS OBSTRUCTION TO THE DOMESTIC POLICY OF THE
STATES BY FORESTALLING STATE ACTION IN CONSTRUING AND APPLYING ITS OWN
STATUTES." 

I SEE NO GOOD REASON FOR DEPARTING NOW FROM THAT WISE POLICY.  IN MY
VIEW THE GOVERNMENT SHOULD BE REMITTED TO THE CALIFORNIA COMMISSION AND
COURTS TO TEST THERE, IN THE FIRST INSTANCE, THE APPLICATION OF THIS
STATUTE, AND THE FEDERAL COURTS SHOULD WITHHOLD FINAL JUDGMENT ON
CONSTITUTIONALITY UNTIL THE TRUE EFFECT OF THE STATUTE HAS THUS BECOME
KNOWN.  THE GOVERNMENT, HOWEVER, SHOULD BE PERMITTED TO PROCEED DURING
THIS PERIOD AS IT HAD BEFORE SEC. 530 WAS AMENDED, FOR ANY POSSIBILITY
OF STATE INTERFERENCE WITH MILITARY OR OTHER GOVERNMENTAL OPERATIONS
WOULD THEREBY BE AVOIDED.  I WOULD THEREFORE VACATE THE JUDGMENT BELOW
AND SO FRAME A REMAND AS TO ENABLE THE DISTRICT COURT TO STAY THE
OPERATION OF THIS STATUTE UNTIL PROCEEDINGS BEFORE THE STATE COMMISSION
OR COURTS HAVE RUN THEIR FULL COURSE.  CF. LEITER MINERALS, INC.,
SUPRA.  THE PROPER ACCOMMODATION OF THE STATE AND FEDERAL CONCERNS HERE
INVOLVED MAKES THIS IN MY VIEW THE APPROPRIATE DISPOSITION OF THIS
CASE. 
..END :






















ANDREW G. NELSON, INC. V. UNITED STATES 355 U.S. 554 


NO. 16.  ARGUED DECEMBER 11, 1957 - DECIDED MARCH 3, 1958 - 150 F. SUPP.
181, AFFIRMED. 


UNDER THE "GRANDFATHER CLAUSE" OF SEC. 209(A) OF THE MOTOR CARRIER ACT
OF 1935, THE INTERSTATE COMMERCE COMMISSION GRANTED CONTRACT CARRIER
PERMITS TO APPELLANT AND ITS PREDECESSOR.  SUBSEQUENTLY, AFTER A
HEARING, THE COMMISSION INTERPRETED "STOCK IN TRADE OF DRUG STORES," A
COMMODITY DESCRIPTION IN APPELLANT'S PERMIT, TO AUTHORIZE CARRIAGE OF
ONLY THOSE GOODS WHICH AT TIME OF MOVEMENT ARE, OR ARE INTENDED TO
BECOME, PART OF THE STOCK IN TRADE OF A DRUGSTORE.  ON THE BASIS OF
THIS INTERPRETATION, THE COMMISSION ISSUED AN APPROPRIATE CEASE AND
DESIST ORDER PROHIBITING CARRIAGE OF UNAUTHORIZED GOODS.  HELD: THE
COMMISSION'S ORDER IS SUSTAINED.  PP. 555-562. 

(A)  THERE BEING NO PATENT AMBIGUITY OR SPECIALIZED TRADE USAGE
INVOLVED, THE ORDINARY MEANING OF THE WORDS USED IN THE COMMODITY
DESCRIPTION IS CONTROLLING.  PP. 557-558. 

(B)  THE COMMISSION'S INTENT IN ISSUING THE PERMIT IS NOT TO BE
ASCERTAINED FROM EVIDENCE UNKNOWN TO THE COMMISSION AT THE TIME OF ITS
ISSUANCE.  P. 557, N. 3. 

(C)  THE COMMISSION'S INTERPRETATION OF "STOCK IN TRADE OF DRUG
STORES" IS NOT CLEARLY ERRONEOUS, AND, THEREFORE, IT MUST BE
SUSTAINED.  PP. 558-560. 

(D)  SINCE THE COMMISSION'S INTERPRETATION ACCORDS WITH THE PLAIN
MEANING OF THE COMMODITY DESCRIPTION, IT IS IMMATERIAL WHETHER THE
COMMISSION HAD EVER APPLIED THE INTENDED USE RESTRICTION PRIOR TO
ISSUANCE OF THIS PERMIT.  RETROACTIVE APPLICATION HERE, IF ANY, OF SUCH
RESTRICTIONS COULD NOT PREJUDICE APPELLANT.  PP. 560-561. 

(E)  IF THE PERMIT, AS THUS CONTRUED, IS NOT AS BROAD AS THE
OPERATIONS CARRIED ON BY APPELLANT'S PREDECESSOR PRIOR TO THE ACT,
APPELLANT'S REMEDY IS TO PETITION THE COMMISSION TO REOPEN THE
GRANDFATHER PROCEEDINGS; THE PERMIT CANNOT BE ATTACKED COLLATERALLY IN
A PROCEEDING FOR ITS VIOLATION.  PP. 561-562. 

(F)  APPELLANT'S ARGUMENTS BASED ON NONCOMPLIANCE WITH THE
ADMINISTRATIVE PROCEDURE ACT HAVE NO MERIT.  P. 562. 

ANDREW G. NELSON, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL CONCERNS THE SCOPE OF A CONTRACT CARRIER PERMIT GRANTED
APPELLANT BY THE INTERSTATE COMMERCE COMMISSION UNDER THE "GRANDFATHER
CLAUSE" OF THE MOTOR CARRIER ACT OF 1935.  (FN1)  THE COMMISSION
INTERPRETED "STOCK IN TRADE OF DRUG STORES," A COMMODITY DESCRIPTION IN
APPELLANT'S PERMIT, TO AUTHORIZE CARRIAGE OF ONLY THOSE GOODS WHICH AT
TIME OF MOVEMENT ARE, OR ARE INTENDED TO BECOME, PART OF THE STOCK IN
TRADE OF A DRUGSTORE.  ON THE BASIS OF THAT INTERPRETATION, AN
APPROPRIATE CEASE AND DESIST ORDER PROHIBITING CARRIAGE OF UNAUTHORIZED
GOODS WAS ENTERED.  63 M.C.C. 407.  AFTER A THREE-JUDGE DISTRICT COURT
REFUSED TO ENJOIN ENFORCEMENT OF THE ORDER, 150 F. SUPP. 181, DIRECT
APPEAL WAS TAKEN TO THIS COURT, AND WE NOTED PROBABLE JURISDICTION. 
352 U.S. 905 (1956).  FOR REASONS HEREINAFTER STATED WE AFFIRM THE
JUDGMENT OF THE DISTRICT COURT. 

APPELLANT'S PREDECESSOR, ANDREW G. NELSON, HAVING OPERATED AS A
CONTRACT CARRIER BEFORE ENACTMENT OF THE MOTOR CARRIER ACT, APPLIED FOR
A PERMIT TO CONTINUE HIS OPERATION SUBSEQUENT TO PASSAGE OF THE ACT, AS
CONTEMPLATED BY SEC. 209(A) THEREOF.  THE APPLICATION DESCRIBED
NELSON'S COMPLETE OPERATION AS "TRANSPORTATION  ...  OF STORE FIXTURES
AND MISCELLANEOUS MERCHANDISE, AND HOUSEHOLD GOODS OF EMPLOYES, FOR
WALGREEN CO., IN CONNECTION WITH THE OPENING, CLOSING AND REMODELING OF
STORES."  IN A SUPPORTING AFFIDAVIT NELSON STATED THAT HE WAS "AN
INTERSTATE CONTRACT CARRIER OF PROPERTY FOR THE WALGREEN COMPANY AND
FOR IT ALONE  ...  TO AND FROM WALGREEN RETAIL STORES  ... THE
COMMODITIES SO TRANSPORTED BEING USUALLY STORE FIXTURES AND EQUIPMENT
AND MERCHANDISE FOR THE OPENING STOCK."  FILED WITH THE AFFIDAVIT WERE
17 DELIVERY RECEIPTS SHOWING CONTRACT CARRIAGE FOR WALGREEN IN 1934
1935. 

ON MARCH 13, 1942, THE COMMISSION ISSUED THE PERMIT IN CONTROVERSY
WITHOUT A HEARING, RELYING ON THE APPLICATION AND SUPPORTING PAPERS
FILED BY NELSON.  THE PERMIT AUTHORIZED CONTRACT CARRIAGE OF "NEW AND
USED STORE FIXTURES, NEW AND USED HOUSEHOLD GOODS, AND STOCK IN TRADE
OF DRUG STORES" (FN2) OVER IRREGULAR ROUTES IN 10 STATES.  UPON
NELSON'S INCORPORATION IN 1951, THE COMMISSION ISSUED AN IDENTICAL
PERMIT TO THE CORPORATION, THE APPELLANT HERE.  IN 1954, AN
INVESTIGATION BY THE COMMISSION TO DETERMINE IF APPELLANT WAS OPERATING
BEYOND THE BOUNDS OF ITS PERMIT AUTHORITY REVEALED THAT APPELLANT WAS
CARRYING A WIDE RANGE OF COMMODITIES FOR MANY KINDS OF SHIPPERS,
INCLUDING GROCERIES FOR GROCERY STORES, BEER AND WINE TO LIQUOR
DISTRIBUTORS, DRY GLUE TO MANUFACTURERS OF GUMMED PRODUCTS, AND
AUTOMOBILE BATTERIES TO DEPARTMENT STORES.  THE COMMISSION HELD THAT
SUCH CARRIAGE, ALL OF WHICH APPELLANT ATTEMPTED TO JUSTIFY UNDER THE
DESCRIPTION "STOCK IN TRADE OF DRUG STORES," VIOLATED SEC. 209 OF THE
ACT, WHICH PROHIBITS CONTRACT CARRIAGE WITHOUT A PERMIT AUTHORIZING THE
BUSINESS IN QUESTION. 

APPELLANT CONTENDS THAT THE CRITICAL LANGUAGE OF THE PERMIT, "STOCK
IN TRADE OF DRUG STORES," IS A GENERIC DESCRIPTION OF COMMODITIES BY
REFERENCE TO PLACE OF SALE, ENTITLING IT TO TRANSPORT GOODS LIKE THOSE
STOCKED BY PRESENT-DAY DRUGSTORES TO ANY CONSIGNEE WITHIN THE
AUTHORIZED OPERATING TERRITORY.  THE COMMISSION, HOWEVER, REGARDS THESE
WORDS AS A DESCRIPTION OF COMMODITIES BY REFERENCE TO INTENDED USE,
AUTHORIZING A MORE LIMITED CARRIAGE: GOODS MOVING TO A DRUGSTORE FOR
SALE THEREIN, OR IF MOVING ELSEWHERE, THEN WITH THE INTENTION AT THE
TIME OF MOVEMENT THAT THEY ULTIMATELY WILL BECOME PART OF THE GOODS
STOCKED BY A DRUGSTORE.  APPELLANT ARGUES THAT THE INTENDED USE OF THE
GOODS IS OF NO CONSEQUENCE HERE BECAUSE (1) INTENDED USE RESTRICTIONS
ARE NEVER APPLIED TO COMMODITY DESCRIPTIONS BY REFERENCE TO PLACE OF
SALE, AND (2) INTENDED USE RESTRICTIONS WERE DEVELOPED BY THE
COMMISSION LONG AFTER ISSUANCE OF NELSON'S PERMIT AND CANNOT NOW BE
APPLIED RETROACTIVELY.  FINALLY, HAVING OFFERED EVIDENCE OF A MUCH MORE
EXTENSIVE GRANDFATHER OPERATION THAN WAS SET OUT IN NELSON'S
APPLICATION AND AFFIDAVITS, APPELLANT CONTENDS THAT THE COMMISSION
ERRED IN EXCLUDING SUCH EVIDENCE. 

BEFORE CONSIDERING THESE CONTENTIONS, WE FIRST NOTE THAT THE PLAIN
MEANING OF WORDS IN A COMMODITY DESCRIPTION IS CONTROLLING IN THE
ABSENCE OF AMBIGUITY OR SPECIALIZED USAGE IN THE TRADE.  NEITHER OF THE
PARTIES BELIEVES THE DESCRIPTION HERE PATENTLY AMBIGUOUS, (FN3) NOR DO
WE CONSIDER IT TO BE SUCH.  MOREOVER, APPELLANT IS UNWILLING TO SAY
THAT THE INSTANT DESCRIPTION IS A TERM OF ART, WHILE THE COMMISSION
SPECIFICALLY ASSERTS THAT IT IS NOT.  CONSEQUENTLY, THE ORDINARY
MEANING OF THE WORDS USED IN THE PERMIT IS DETERMINATIVE.  IN
ASCERTAINING THAT MEANING, WE ARE NOT GIVEN CARTE BLANCHE; JUST AS "THE
PRECISE DELINEATION OF AN ENTERPRISE WHICH SEEKS THE PROTECTION OF THE
'GRANDFATHER' CLAUSE HAS BEEN RESERVED FOR THE COMMISSION," NOBLE V.
UNITED STATES, 319 U.S. 88, 93 (1943), SUBSEQUENT CONSTRUCTION OF THE
GRANDFATHER PERMIT BY THE COMMISSION IS CONTROLLING ON THE COURTS
UNLESS CLEARLY ERRONEOUS.  DART TRANSIT CO. V. INTERSTATE COMMERCE
COMM'N, 110 F. SUPP. 876, AFF'D, 345 U.S. 980 (1953).  (FN4) 

IN CONSTRUING "STOCK IN TRADE OF DRUG STORES," THE COMMISSION FOUND
THE CONTROVERTED WORDS TO BE A COMMODITY DESCRIPTION BY REFERENCE TO
INTENDED USE; IT HELD THEM EQUIVALENT TO "DRUG STORES' STOCK" AND
ANALOGIZED THE LATTER TO SUCH DESCRIPTIONS AS "CONTRACTORS' EQUIPMENT"
(FN5) OR "PACKING HOUSE SUPPLIES."  (FN6)  ON THAT BASIS IT REQUIRED
THAT THE GOODS TRANSPORTED BE INTENDED FOR USE BY A DRUGSTORE AS PART
OF ITS STOCK IN TRADE. 

THE COMMISSION REJECTED APPELLANT'S CONTENTION THAT THE WORDS OF THIS
PERMIT ARE A DESCRIPTION BY REFERENCE TO PLACE OF SALE.  (FN7)  IN
MAKING THAT CONTENTION APPELLANT EQUATES THE PERMIT'S LANGUAGE WITH
"GOODS SUCH AS ARE SOLD IN DRUG STORES."  IT IS OBVIOUS TO US THAT SUCH
A READING ENLARGES THE ORDINARY MEANING OF THE WORDS.  AS POINTED OUT
BY THE EXAMINER, 63 M.C.C., AT 414, THE DESCRIPTION USED IN THE PERMIT
CONNOTES POSSESSION, AND THEREFORE LENDS ITSELF MORE READILY TO "DRUG
STORES' STOCK" THAN IT DOES TO "GOODS SUCH AS ARE SOLD IN DRUG
STORES."  (FN8)  MOREOVER, AN EXAMINATION OF THE COMMISSION'S DECISIONS
INDICATES USE OF A DEFINITE AND DISTINCTIVE LINGUISTIC PATTERN WHENEVER
DESCRIPTIONS ARE MADE BY REFERENCE TO PLACE OF SALE:  IF THE
COMMISSION'S PURPOSE HAS BEEN TO AUTHORIZE TRANSPORTATION OF GOODS LIKE
THOSE NAMED IN THE PERMIT, THAT PURPOSE CONSISTENTLY HAS BEEN REVEALED
BY USE OF THE PHRASE "SUCH AS," OR A CLOSE VARIATION THEREOF.  (FN9)
YET THERE IS NO SUCH PHRASE IN THE PRESENT PERMIT.  THESE
CONSIDERATIONS ARE BULWARKED BY THE RECORD NELSON PUT BEFORE THE
COMMISSION IN 1942, CLEARLY SHOWING THAT HE WAS HAULING WALGREEN'S
DRUGSTORE STOCK, AND NOT GOODS SUCH AS MIGHT BE STOCKED FOR SALE BY
WALGREEN.  ON BALANCE, THEREFORE, WE ARE COMPELLED TO THINK THE
COMMISSION RIGHT; CERTAINLY IT IS NOT CLEARLY WRONG. 

APPELLANT CONTENDS THAT THE PERMIT LANGUAGE CANNOT EMBODY AN INTENDED
USE RESTRICTION BECAUSE SUCH RESTRICTIONS WERE NOT FORMULATED BY THE
COMMISSION UNTIL AFTER ISSUANCE OF NELSON'S PERMIT AND CANNOT BE
RETROACTIVELY APPLIED AS A LIMITATION ON THE SAME.  THE COMMISSION
CHALLENGES THE ASSERTION THAT THE INTENDED USE RESTRICTION WAS NEVER
APPLIED PRIOR TO ISSUANCE OF THE PERMIT.  IT IS UNNECESSARY FOR US TO
RESOLVE THAT QUESITON, HOWEVER.  ASSUMING THAT THE INTENDED USE TEST
FIRST APPEARED AS A COMMODITY DESCRIPTION TECHNIQUE AFTER APPELLANT'S
PREDECESSOR OBTAINED HIS PERMIT, WE THINK THE COMMISSION STILL FREE TO
INTERPRET THE PERMIT AS IT HAS DONE.  ITS DETERMINATION ACCORDS WITH
THE COMMON, ORDINARY MEANING OF THE WORDS USED, AND IN NO WAY STRAINS
OR ARTIFICIALIZES THAT MEANING.  (FN10)  IF THE CONTROVERTED WORDS
FAIRLY LEND THEMSELVES NOW TO THE CONSTRUCTION MADE HERE, THEY ALWAYS
HAVE DONE SO.  CONSEQUENTLY, ANY RETROACTIVE APPLICATION OF THE
INTENDED USE TEST COULD WORK NO PREJUDICE TO APPELLANT; ONCE IT IS
DETERMINED THAT THE ORDINARY MEANING OF THE DESCRIPTION IS NEITHER MORE
NOR LESS THAN THE COMMISSION'S INTERPRETATION, THE MANNER IN WHICH THE
COMMISSION ARRIVED AT ITS CONCLUSION IS NOT CONTROLLING.  (FN11) 

FINALLY, APPELLANT CONTENDS THAT THE COMMISSION'S INTERPRETATION
LIMITS THE ACTUAL - THOUGH PREVIOUSLY UNASSERTED - SCOPE OF GRANDFATHER
OPERATIONS CARRIED ON BY APPELLANT'S PREDECESSOR, THUS SUBVERTING THE
SUBSTANTIAL PARITY WHICH A GRANDFATHER PERMIT SHOULD ESTABLISH BETWEEN
PRE-ACT AND POST-ACT OPERATIONS.  ALTON R. CO. V. UNITED STATES, 315
U.S. 15 (1942).  IF THIS BE SO, THE REMEDY LIES ELSEWHERE:  IN THE
EVENT THE GRANDFATHER PERMIT DOES NOT CORRECTLY REFLECT THE SCOPE OF
THE GRANDFATHER OPERATION, THE CARRIER'S RECOURSE IS TO PETITION THE
COMMISSION TO REOPEN THE GRANDFATHER PROCEEDINGS FOR CONSIDERATION OF
THE EVIDENCE NOT PREVIOUSLY BROUGHT TO THE COMMISSION'S ATTENTION. 
SUCH A CONTENTION IS NO ANSWER TO THE PRESENT CHARGE OF PERMIT
VIOLATION, SINCE THE PERMIT CANNOT BE COLLATERALLY ATTACKED.  CALLANAN
ROAD IMPROVEMENT CO. V. UNITED STATES, 345 U.S. 507 (1953); INTERSTATE
COMMERCE COMM'N V. CONSOLIDATED FREIGHTWAYS, INC., 41 F. SUPP. 651.  TO
HOLD OTHERWISE WOULD RENDER MEANINGLESS THE CONGRESSIONAL REQUIREMENT
OF A PERMIT TO CONTINUE GRANDFATHER OPERATIONS SUBSEQUENT TO THE ACT. 

APPELLANT'S ARGUMENTS BASED ON NONCOMPLIANCE WITH THE ADMINISTRATIVE
PROCEDURE ACT, 60 STAT. 237, 5 U.S.C. SECS. 1001-1011, HAVE NO MERIT. 
AFFIRMED. 

FN1  THIS ACT BECAME PART II OF THE INTERSTATE COMMERCE ACT.  SECITON
209(A), 49 STAT.  552, AS AMENDED, 52 STAT. 1238, 64 STAT. 575, 49
U.S.C. SEC. 309(A)(1), MAKES IT UNLAWFUL TO ENGAGE IN INTERSTATE
CONTRACT CARRIAGE BY MOTOR VEHICLE WITHOUT A PERMIT FROM THE INTERSTATE
COMMERCE COMMISSION; HOWEVER, THE FIRST PROVISO THERETO PROVIDES THAT
THE COMMISSION SHALL ISSUE A PERMIT AS A MATTER OF COURSE UPON
APPLICATION BY A CARRIER FOR AUTHORITY TO OPERATE A ROUTE OVER WHICH
THE CARRIER OR A PREDECESSOR IN INTEREST WAS IN BONA FIDE OPERATION ON
JULY 1, 1935.  THAT PROVISO IS COMMONLY CALLED THE "GRANDFATHER
CLAUSE." 

FN2  SINCE NEITHER PARTY ATTACHES ANY SIGNIFICANCE TO CERTAIN
UNDERSCORING OF LANGUAGE IN THE PERMIT, WE DO NOT ITALICIZE THAT
LANGUAGE. 

FN3  APPELLANT DOES ARGUE ALTERNATIVELY THAT IF THE COMMISSION'S
INTERPRETATION IS ADOPTED, THE DESCRIPTION NECESSARILY WOULD BE
AMBIGUOUS.  THIS IS A CONSIDERABLE TWISTING OF APPELLANT'S EARLIER
POSITION, CONSISTENTLY MAINTAINED THROUGHOUT THESE PROCEEDINGS, THAT
THE PERMIT'S PHRASEOLOGY EXHIBITS NO AMBIGUITY OR INDEFINITENESS.  IN
THIS REGARD, THE COMMISSION HELD, "WE AGREE WITH THE CONTENTION OF THE
PARTIES AND THE EXAMINER'S CONCLUSION THAT THERE IS NO SUCH PATENT
AMBIGUITY IN THE PERMIT AS TO WARRANT OUR GOING BACK OF IT AND GIVING
CONSIDERATION TO EVENTS PRIOR TO ITS ISSUANCE."  63 M.C.C., AT 409. 

ABSENT PATENT AMBIGUITY, IT IS WELL ESTABLISHED THAT THE COMMISSION
WILL NOT REFER TO THE UNDERLYING GRANDFATHER OPERATION.  P. SALDUTTI &
SON, INC. - INTERPRETATION OF PERMIT, 63 M.C.C. 593.  EVEN IF SUCH
REFERENCE IS MADE HERE, HOWEVER, THE NELSON APPLICATION AND ALL THE
DOCUMENTS FILED WITH IT DESCRIBE AN OPERATION SOLELY FOR THE WALGREEN
DRUG COMPANY; APPELLANT ADMITS THAT ALL THE RECORD EVIDENCE BEFORE THE
COMMISSION GIVES "THE IMPRESSION THAT NELSON WAS HAULING ONLY FOR
WALGREEN"  THAT BACKGROUND IN NOWISE SUPPORTS APPELLANT'S POSITION
HERE, SINCE IT SHOWS NELSON TO HAVE BEEN CARRYING GOODS ACTUALLY
DESTINED TO BECOME PART OF THE STOCK OF A DRUGSTORE, AND NOT MERELY
GOODS LIKE THOSE STOCKED BY SUCH A STORE.  ALTHOUGH APPELLANT OFFERS
EVIDENCE NOW OF A GRANDFATHER OPERATION MORE EXTENSIVE THAN CARRIAGE
MERELY FOR WALGREEN, IT SEEMS OBVIOUS THAT THE COMMISSION'S INTENT IN
ISSUING THE PRESENT PERMIT IS NOT TO BE ASCERTAINED FROM EVIDENCE
UNKNOWN TO THE COMMISSION AT THE TIME OF ISSUANCE. 

FN4  IT IS TRUE, OF COURSE, THAT LIMITATIONS ON COMMISSION POWER TO
MODIFY MOTOR CARRIER PERMITS, ESTABLISHED IN SEC. 212(A) OF THE ACT,
CANNOT BE BY-PASSED UNDER A GUISE OF INTERPRETATIVE ACTION.  COMMISSION
INTERPRETATION OF THE MEANING OF A PERMIT, BEING SIMPLY A DEFINITIVE
DECLARATION OF WHAT RIGHTS EXISTED FROM THE VERY BEGINNING UNDER THE
PERMIT, CANNOT BE EQUATED WITH MODIFICATION, HOWEVER, UNLESS FOUND TO
BE CLEARLY ERRONEOUS. 

FN5 SEE C.&H. TRANSPORTATION CO. - INTERPRETATION OF CERTIFICATE, 62
M.C.C. 586, HOLDING THAT "CONTRACTORS' EQUIPMENT AND SUPPLIES"
AUTHORIZED TRANSPORTATION OF SUCH GOODS ONLY WHEN INTENDED FOR USE BY A
CONTRACTOR; TRANSPORTATION OF SIMILAR GOODS FOR USE BY A BRANCH OF THE
ARMED SERVICES WAS HELD UNAUTHORIZED. 

FN6  SEE DART TRANSIT CO. - MODIFICATION OF PERMIT, 49 M.C.C. 607,
HOLDING THAT "PACKING HOUSE SUPPLIES" MEANS SUPPLIES THAT IN FACT ARE
INTENDED TO BE USED IN A PACKING HOUSE, AND NOT SUPPLIES LIKE THOSE
USED IN PACKING HOUSES. 

FN7  IN CONTENDING, THEN, THAT THE COMMISSION ERRED IN APPLYING THE
INTENDED USE TEST TO A COMMODITY DESCRIPTION BY REFERENCE TO PLACE OF
SALE, APPELLANT CLEARLY BEGS THE QUESTION AT ISSUE.    FN8  APPELLANT
ARGUES THAT MCATEER CONTRACT CARRIER APPLICATION, 42 M.C.C. 35, EQUATES
THE PHRASES "GOODS SUCH AS ARE SOLD IN" AND "STOCK IN TRADE OF."  THE
OPINION'S SINGLE USE OF THE LATTER PHRASE, HOWEVER, GIVES NO SUPPORT TO
SUCH A CONTENTION. 

FN9  SEE, E.G., INTERSTATE COMMERCE COMM'N V. RATNER, 6 CCH FED.
CARRIERS CASES PARA. 80,415 ("SUCH MERCHANDISE AS IS DEALT IN BY
WHOLESALE FOOD BUSINESS HOUSES"); ANTON VIDAS CONTRACT CARRIER
APPLICATION, 62 M.C.C. 106 ("SUCH COMMODITIES AS ARE SOLD BY RETAIL
MAIL-ORDER HOUSES"); NATIONAL TRUCKING CO. EXTENSION -ELECTRICAL
APPLIANCES, 51 M.C.C.  638 ("SUCH COMMODITIES AS ARE DEALT IN BY
WHOLESALE AND RETAIL HARDWARE STORES"); SANDERS EXTENSION OF
OPERATIONS, 47 M.C.C. 210 ("SUCH GENERAL MERCHANDISE AS IS DEALT IN BY
WHOLESALE AND RETAIL GROCERY STORES"); MCATEER CONTRACT CARRIER
APPLICATION, 42 M.C.C. 35 ("SUCH MERCHANDISE AS IS DEALT IN BY
WHOLESALE, RETAIL, AND CHAIN GROCERY AND FOOD BUSINESS HOUSES");
ONONDAGA FREIGHT CORP. COMMON CARRIER APPLICATION, 28 M.C.C. 53 ("SUCH
MERCHANDISE AS IS DEALT IN BY RETAIL FOOD STORES"); KEYSTONE
TRANSPORTATION CO. CONTRACT CARRIER APPLICATION, 19 M.C.C. 475 ("SUCH
MERCHANDISE AS IS DEALT IN BY WHOLESALE, RETAIL, AND CHAIN GROCERY AND
FOOD BUSINESS HOUSES"). 

FN10  CONTRAST THE COMMISSION'S INTERPRETATION HERE WITH THOSE IN
BIRD TRUCKING CO. - MODIFICATION OF CERTIFICATE, 61 M.C.C. 311, REV'D,
11 CCH FED. CARRIERS CASES PARA. 81,028; JOHNSON TRUCK SERVICE V.
SALVINO, 61 M.C.C. 329, REV'D, 119 F. SUPP. 277, ON WHICH APPELLANT
RELIES. 

FN11  THE INTENDED USE TEST, AS APPLIED BY THE COMMISSION HERE, IS
DESCRIPTIVE RATHER THAN DETERMINATIVE:  IT DESCRIBES THE RESULT
OBTAINED BY TAKING THE LANGUAGE OF THE PERMIT AT FACE VALUE, AND IN NO
SENSE IS A FACTOR IN ARRIVING AT THAT RESULT. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :

















WEYERHAEUSER STEAMSHIP CO. V. NACIREMA OPERATING CO., INC. 355 U.S. 563 



NO. 75.  ARGUED JANUARY 6, 1958 - DECIDED MARCH 3, 1958 - 236 F.2D 848,
REVERSED AND REMANDED. 


A STEVEDORING COMPANY, WHICH HAD CONTRACTED TO UNLOAD A VESSEL IN NEW
YORK AND BOSTON, PERMITTED ITS BOSTON EMPLOYEES TO USE, WITHOUT
INSPECTION, A TEMPORARY SHELTER ERECTED BY IT IN NEW YORK BUT NOT
REMOVED BY THE SHIPOWNER UPON SAILING FOR BOSTON.  A LONGSHOREMAN
INJURED BY A BOARD WHICH FELL FROM THE SHELTER SUED THE SHIPOWNER ON
CLAIMS OF NEGLIGENCE AND UNSEAWORTHINESS.  THE SHIPOWNER IMPLEADED THE
STEVEDORING COMPANY, CLAIMING A RIGHT TO INDEMNITY.  A JURY IN THE MAIN
CASE FOUND FOR THE LONGSHOREMAN ON THE ISSUE OF NEGLIGENCE AND FOR THE
SHIPOWNER ON THE ISSUE OF SEAWORTHINESS, AND THE LONGSHOREMAN WAS
AWARDED A JUDGMENT AGAINST THE SHIPOWNER.  CONCLUDING THAT THE JURY'S
VERDICT WAS ALSO DISPOSITIVE OF THE THIRD-PARTY ACTION, THE JUDGE
DIRECTED A VERDICT FOR THE STEVEDORING COMPANY.  HELD: THE LIABILITY OF
THE STEVEDORING COMPANY DEPENDED ON PRINCIPLES DIFFERENT FROM THOSE
GOVERNING THE LIABILITY OF THE SHIPOWNER; ALL ISSUES OF FACT INVOLVED
IN THE THIRD-PARTY ACTION SHOULD HAVE BEEN SUBMITTED TO THE JURY; AND
THE COURT ERRED IN DIRECTING A VERDICT FOR THE STEVEDORING COMPANY
BASED ON THE FINDING FOR THE LONGSHOREMAN.  PP. 564-569. 

(A)  THE STEVEDORING COMPANY'S CONTRACTUAL OBLIGATION TO PERFORM ITS
DUTIES WITH REASONABLE SAFETY RELATED NOT ONLY TO THE HANDLING OF THE
CARGO BUT ALSO TO THE USE OF EQUIPMENT INCIDENTAL THERETO, SUCH AS THE
SHELTER INVOLVED HERE.  P. 567. 

(B)  IF IN THAT REGARD THE STEVEDORING COMPANY RENDERED A SUBSTANDARD
PERFORMANCE WHICH LED TO FORESEEABLE LIABILITY OF THE SHIPOWNER, THE
LATTER WAS ENTITLED TO INDEMNITY, ABSENT CONDUCT ON ITS PART SUFFICIENT
TO PRECLUDE RECOVERY.  P. 567. 

(C)  THE EVIDENCE BEARING ON THESE ISSUES WAS FOR JURY CONSIDERATION
UNDER APPROPRIATE INSTRUCTIONS, AND THESE ISSUES WERE NOT ENCOMPASSED
BY THE INSTRUCTIONS IN THE MAIN CASE.  PP. 567-568. 

(D)  SINCE THE LIABILITY OF THE STEVEDORING COMPANY DEPENDED ON
PRINCIPLES DIFFERENT FROM THOSE GOVERNING LIABILITY OF THE SHIPOWNER,
ALL ISSUES OF FACT INVOLVED IN THE THIRD-PARTY CASE SHOULD HAVE BEEN
SUBMITTED TO THE JURY AFTER THE VERDICT IN THE MAIN CASE.  P. 568. 

(E)  THE VERDICT FOR THE LONGSHOREMAN DID NOT IPSO FACTO PRECLUDE
RECOVERY OF INDEMNITY BY THE SHIPOWNER.  PP. 568-569. 

(F)  IN THE AREA OF CONTRACTUAL INDEMNITY, AN APPLICATION OF THE
THEORIES OF "ACTIVE" OR "PASSIVE" AS WELL AS "PRIMARY" OR "SECONDARY"
NEGLIGENCE IS INAPPROPRIATE.  P. 569. 

WEYERHAEUSER STEAMSHIP CO. V. NACIREMA OPERATING CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE INVOLVES THE RIGHT TO TRIAL BY JURY UNDER
PRINCIPLES OF MARITIME LIABILITY ENUNCIATED IN RYAN STEVEDORING CO. V.
PAN-ATLANTIC S.S. CORP., 350 U.S. 124 (1956).  RESPONDENT, A
STEVEDORING COMPANY, CONTRACTED TO FURNISH PETITIONER, A SHIPOWNER,
WITH STEVEDORING SERVICES, AND A LONGSHOREMAN EMPLOYED BY RESPONDENT
WAS INJURED WHILE UNLOADING PETITIONER'S VESSEL.  WHEN THE LONGSHOREMAN
SUED PETITIONER ON CLAIMS OF NEGLIGENCE AND UNSEAWORTHINESS, PETITIONER
IMPLEADED RESPONDENT, CLAIMING A RIGHT TO INDEMNITY FOR ANY DAMAGES THE
LONGSHOREMAN MIGHT RECOVER.  THE MAIN CASE, INVOLVING THE
LONGSHOREMAN'S CLAIMS, WAS SUBMITTED TO THE JURY, WHICH FOUND FOR THE
LONGSHOREMAN ON THE ISSUE OF NEGLIGENCE AND FOR PETITIONER ON THE ISSUE
OF SEAWORTHINESS.  THAT JUDGMENT HAS SINCE BEEN SATISFIED AND IS NOT
BEFORE US.  AFTER RECEIVING THE VERDICT, THE JUDGE DECIDED THAT IT ALSO
WAS DISPOSITIVE OF THE THIRD-PARTY ACTION, AND DIRECTED A VERDICT FOR
RESPONDENT.  A DIVIDED COURT OF APPEALS AFFIRMED, 236 F.2D 848, AND WE
GRANTED CERTIORARI.  352 U.S. 1030 (1957).  PETITIONER CONTENDS, INTER
ALIA, THAT CERTAIN ISSUES OF FACT SHOULD HAVE BEEN SUBMITTED TO THE
JURY.  WE AGREE WITH PETITIONER ON THIS POINT. 

PETITIONER'S CLAIM FOR INDEMNITY PRIMARILY RESTS ON THE CONTRACTUAL
RELATIONSHIP BETWEEN IT AND RESPONDENT.  WHILE THE STEVEDORING CONTRACT
CONTAINED NO EXPRESS INDEMNITY CLAUSE, (FN1) IT OBLIGATED RESPONDENT
"TO FAITHFULLY FURNISH SUCH STEVEDORING SERVICES AS MAY BE REQUIRED,"
AND TO PROVIDE ALL NECESSARY LABOR AND SUPERVISION FOR "THE PROPER AND
EFFICIENT CONDUCT OF THE WORK."  AS THIS COURT SAID IN RYAN STEVEDORING
CO. V. PAN-ATLANTIC S.S. CORP., SUPRA, SUCH LANGUAGE CONSTITUTES "A
CONTRACTUAL UNDERTAKING TO PERFORM 'WITH REASONABLE SAFETY,'" 350 U.S.,
AT 130, AND TO DISCHARGE "FORESEEABLE DAMAGES RESULTING TO THE
SHIPOWNER FROM THE CONTRACTOR'S IMPROPER PERFORMANCE."  350 U.S., AT
129, FOOTNOTE 3.  PETITIONER CONTENDS THAT A BREACH OF THIS UNDERTAKING
BY RESPONDENT CAUSED THE INJURY TO THE LONGSHOREMAN, AND THAT
PETITIONER'S LIABILITY RESULTING FROM THE BREACH WAS "FORESEEABLE." 

THE F.E. WEYERHAEUSER, THE VESSEL UPON WHICH THE ACCIDENT OCCURRED,
HAD SAILED FROM THE WEST COAST WITH A CARGO OF LUMBER FOR NEW YORK AND
BOSTON, THE PORTS WHERE RESPONDENT WAS TO PERFORM THE STEVEDORING
OPERATIONS.  THE VESSEL ARRIVED IN NEW YORK ON JANUARY 25, 1952, AND IN
THE ENSUING FIVE DAYS THE DECK LOAD AND PART OF THE UNDERDECK CARGO WAS
DISCHARGED.  ON JANUARY 30 THE SHIP LEFT NEW YORK, ARRIVING IN BOSTON
THE NEXT DAY.  RESPONDENT'S CREWS BOARDED THE VESSEL AND THE UNLOADING
CONTINUED.  ON THE FIFTH DAY OF THE BOSTON OPERATIONS ONE CONNOLLY, A
LONGSHOREMAN EMPLOYED BY RESPONDENT, WAS INJURED WHEN STRUCK ON THE
HEAD BY A PIECE OF WOOD WHILE WORKING IN A LOWER HOLD.  THE PARTIES
AGREE THAT THE WOOD MUST HAVE FALLEN INTO THE HOLD FROM THE TOP OF A
TEMPORARY WINCH SHELTER WHICH PROTECTED THE WINCH DRIVERS FROM THE
ELEMENTS. 

THE EVIDENCE INDICATED THAT WINCH SHELTERS ARE CUSTOMARILY ERECTED BY
LONGSHOREMEN AT THE BEGINNING OF THEIR UNLOADING OPERATIONS.  THEY
CONSIST OF A SCRAP LUMBER FRAMEWORK WITH A TARPAULIN STRETCHED ACROSS
THE TOP.  BECAUSE OF THEIR FLIMSY CONSTRUCTION THEY ARE CONSIDERED A
HAZARD IN THE WINDS AT SEA, AND "AUTOMATICALLY" ARE TORN DOWN BY THE
SHIP'S CREW WHEN THE VESSEL LEAVES PORT.  BOTH THE CAPTAIN AND THE
SECOND OFFICER OF THE F.E. WEYERHAEUSER TESTIFIED THAT IT WOULD BE
CARELESSNESS ON THEIR PART TO ALLOW WINCH SHELTERS TO REMAIN IN PLACE
WHEN THE VESSEL GOES TO SEA.  WE NEED NOT DISCUSS THE DETAILS WHICH MAY
HAVE LED THE JURY TO FIND FOR CONNOLLY IN THE MAIN CASE, BUT IMPLICIT
IN THE JURY VERDICT WAS A FINDING THAT THE STRUCTURE WAS ON THE SHIP
WHEN IT ARRIVED IN BOSTON.  (FN2)  RESPONDENT, THROUGH ITS EMPLOYEES
STATIONED IN NEW YORK, MUST HAVE BUILT THE SHELTER WHILE THE SHIP WAS
IN NEW YORK HARBOR, (FN3) AND WE MAY ASSUME THAT PETITIONER FAILED TO
REMOVE IT UPON LEAVING FOR BOSTON.  THE RECORD IS SILENT AS TO THE
EXACT CIRCUMSTANCES UNDER WHICH IT WAS MADE AVAILABLE TO RESPONDENT IN
BOSTON.  IT DOES APPEAR, HOWEVER, THAT THE SHELTER WAS USED IN THE
STEVEDORING OPERATIONS BY RESPONDENT'S BOSTON EMPLOYEES, IN SPITE OF
THE FACT THAT RESPONDENT AS WELL AS PETITIONER MUST HAVE KNOWN OF ITS
JOURNEY FROM NEW YORK AND THE POSSIBLE EFFECT OF SUCH A JOURNEY ON AN
ALREADY FLIMSY STRUCTURE.  THERE WAS EVIDENCE THAT THE SHELTER WAS NOT
INSPECTED BY EITHER PARTY UNTIL THE INJURY TO CONNOLLY FIVE DAYS AFTER
THE ARRIVAL IN BOSTON.  (FN4) 

WE BELIEVE THAT RESPONDENT'S CONTRACTUAL OBLIGATION TO PERFORM ITS
DUTIES WITH REASONABLE SAFETY RELATED NOT ONLY TO THE HANDLING OF
CARGO, AS IN RYAN, BUT ALSO TO THE USE OF EQUIPMENT INCIDENTAL THERETO,
SUCH AS THE WINCH SHELTER INVOLVED HERE.  AMERICAN PRESIDENT LINES V.
MARINE TERMINALS CORP., 234 F.2D 753, 758; UNITED STATES V. ARROW
STEVEDORING CO., 175 F.2D 329, 331.  IF IN THAT REGARD RESPONDENT
RENDERED A SUBSTANDARD PERFORMANCE (FN5) WHICH LED TO FORESEEABLE
LIABILITY OF PETITIONER, THE LATTER WAS ENTITLED TO INDEMNITY ABSENT
CONDUCT ON ITS PART SUFFICIENT TO PRECLUDE RECOVERY.  THE EVIDENCE
BEARING ON THESE ISSUES - PETITIONER'S ACTION IN MAKING THE SHELTER ON
ITS SHIP AVAILABLE TO RESPONDENT'S EMPLOYEES IN BOSTON ALTHOUGH IT
APPARENTLY WAS UNSAFE, (FN6) AS WELL AS RESPONDENT'S CONTINUED USE OF
THE SHELTER FOR FIVE DAYS THERAFTER WITHOUT INSPECTION - WAS FOR JURY
CONSIDERATION UNDER APPROPRIATE INSTRUCTIONS.  THESE ISSUES WERE NOT
ENCOMPASSED BY THE INSTRUCTIONS IN THE MAIN CASE, WHERE THE TEST OF
PETITIONER'S LIABILITY WAS BASED ON FAILURE TO PERFORM A NONDELEGABLE
DUTY TO CONNOLLY.  SINCE THE LIABILITY OF RESPONDENT DEPENDED ON
DIFFERENT PRINCIPLES, CRAWFORD V. POPE & TALBOT, INC., 206 F.2D 784,
792, ALL FACT ISSUES INVOLVED IN THE THIRD-PARTY ACTION SHOULD HAVE
BEEN SUBMITTED TO THE JURY AFTER THE VERDICT IN THE MAIN CASE.  (FN7)
FURTHER, THE VERDICT FOR CONNOLLY DID NOT IPSO FACTO PRECLUDE RECOVERY
OF INDEMNITY BY PETITIONER, FOR AS WE HAVE INDICATED, THE DUTIES OWING
FROM PETITIONER TO CONNOLLY WERE NOT IDENTICAL WITH THOSE FROM
PETITIONER TO RESPONDENT.  WHILE THE JURY FOUND PETITIONER "GUILTY OF
SOME ACT OF NEGLIGENCE," THAT ULTIMATE FINDING MIGHT HAVE BEEN
PREDICATED, INTER ALIA, ON A FAILURE OF PETITIONER TO REMOVE THE
SHELTER WHEN THE SHIP LEFT NEW YORK, OR A FAILURE TO CORRECT OR WARN
RESPONDENT OF A LATENT DANGEROUS CONDITION KNOWN TO PETITIONER WHEN
RESPONDENT BEGAN THE BOSTON UNLOADING.  LIKEWISE, THE FINDING MIGHT
HAVE BEEN PREDICATED ON A FAILURE OF PETITIONER DURING THE FIVE DAYS IN
BOSTON TO INSPECT THE SHELTER, DETECT AND CORRECT THE UNSAFE
CONDITION.  ALTHOUGH ANY OF THESE POSSIBILITIES COULD PROVIDE CONNOLLY
A BASIS OF RECOVERY, AT LEAST THE LATTER WOULD NOT, UNDER RYAN, PREVENT
RECOVERY BY PETITIONER IN THE THIRD-PARTY ACTION.  350 U.S., AT 134
135.  SEE CORNEC V. BALTIMORE & O.R. CO., 48 F.2D 497, 502; BOSTON
WOVEN HOSE & RUBBER CO. V. KENDALL, 178 MASS. 232, 59 N.E. 657 (OPINION
OF CHIEF JUSTICE HOLMES).  IT WAS IMPROPER, THEREFORE, FOR THE COURT TO
DIRECT A VERDICT FOR RESPONDENT BASED ON THE FINDING FOR CONNOLLY. 

IN VIEW OF THE NEW TRIAL TO WHICH PETITIONER IS ENTITLED, WE BELIEVE
SOUND JUDICIAL ADMINISTRATION REQUIRES US TO POINT OUT THAT IN THE AREA
OF CONTRACTUAL INDEMNITY AN APPLICATION OF THE THEORIES OF "ACTIVE" OR
"PASSIVE" AS WELL AS "PRIMARY" OR "SECONDARY" NEGLIGENCE IS
INAPPROPRIATE.  RYAN STEVEDORING CO. V. PAN-ATLANTIC S.S. CO., SUPRA,
AT 132-133. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  SEE, GENERALLY, WEINSTOCK, THE EMPLOYER'S DUTY TO INDEMNIFY
SHIPOWNERS FOR DAMAGES RECOVERED BY HARBOR WORKERS, 103 U. OF PA. L.
REV. 321, 332-346 (1954). 

FN2  THE JURY FOUND FOR CONNOLLY ON THE ISSUE OF NEGLIGENCE AFTER
BEING INSTRUCTED AS FOLLOWS: 

"NOW, IF YOU FIND FROM THE EVIDENCE THAT THE STRUCTURE, THAT IS, THIS
SHELTER, WAS ON THE SHIP WHEN IT CAME INTO BOSTON HARBOR AND THAT THE
SHIP OFFERED IT TO THE STEVEDORES TO USE AND WORK WITH, AND IF YOU FIND
THAT IN PERMITTING THAT TO BE THERE THE SHIP WAS GUILTY OF SOME ACT OF
NEGLIGENCE AS I HAVE DEFINED IT TO YOU, THEN YOU COULD FIND A VERDICT
FOR MR. CONNOLLY." 

FN3  THERE WAS UNDISPUTED EVIDENCE THAT THE SHELTER COULD NOT HAVE
BEEN ASSEMBLED PRIOR TO THE REMOVAL OF THE DECK CARGO IN NEW YORK. 

FN4  A WITNESS TESTIFIED THAT AFTER THE ACCIDENT HE STOOD ON ONE OF
THE WINCHES TO PERMIT A VIEW OF THE SHELTER TOP, WHICH WAS
APPROXIMATELY SEVEN FEET ABOVE THE DECK, AND DISCOVERED A SECOND PIECE
OF TARPAULIN SECURED ONLY BY TWO LOOSE PIECES OF WOOD SIMILAR TO THAT
WHICH STRUCK CONNOLLY. 

FN5  IT SHOULD BE NOTED THAT "THE SHIPOWNER'S ACTION IS NOT CHANGED
FROM ONE FOR A BREACH OF CONTRACT TO ONE FOR A TORT SIMPLY BECAUSE
RECOVERY MAY TURN UPON THE STANDARD OF THE PERFORMANCE OF PETITIONER'S
STEVEDORING SERVICE."  RYAN STEVEDORING CO. V. PAN-ATLANTIC S.S. CORP.,
SUPRA, AT 134. 

FN6  SEE CORBIN, CONTRACTS, SECS. 571, 947, 1264; CF. RESTATEMENT,
CONTRACTS, SECS.  295, 315. 

FN7  THE FOLLOWING EXPLANATION IN THE CHARGE TO THE JURY SUGGESTS
THAT THE TRIAL JUDGE INTENDED TO SUBMIT THE THIRD-PARTY ACTION UPON
RETURN OF THE VERDICT IN THE MAIN CASE: 

"I SHALL ASK YOU TO GO OUT AND CONSIDER THE CLAIMS OF MR. CONNOLLY
AGAINST THE WEYERHAEUSER STEAMSHIP COMPANY FIRST AND THEN WHEN YOU COME
BACK WITH YOUR VERDICT ON THAT I SHALL ASK YOU TO RETIRE AGAIN AND
CONSIDER THE ISSUES IN THE SECOND SUIT, NAMELY WEYERHAEUSER STEAMSHIP
COMPANY AGAINST THE NACIREMA OPERATING COMPANY, AND BEFORE I SUBMIT
THAT SECOND ONE TO YOU I SHALL GIVE YOU SOME INSTRUCTIONS WHICH APPLY
PECULIARLY TO THAT." 
..END :






UNITED STATES V. HVASS 355 U.S. 570 


NO. 92.  ARGUED JANUARY 27, 1958 - DECIDED MARCH 3, 1958 - 147 F. SUPP.
594, REVERSED AND REMANDED. 


1.  WHEN A FEDERAL DISTRICT COURT DISMISSES AN INDICTMENT ON THE
GROUND THAT IT DOES NOT ALLEGE A VIOLATION OF THE STATUTE UPON WHICH IT
WAS FOUNDED, NOT MERELY BECAUSE OF SOME DEFICIENCY IN PLEADING BUT WITH
RESPECT TO THE SUBSTANCE OF THE CHARGE, THAT IS NECESSARILY A
CONSTRUCTION OF THE STATUTE, AND A DIRECT APPEAL TO THIS COURT LIES
UNDER 18 U.S.C. SEC. 3731.  PP. 573-574. 

2.  A WILLFULLY FALSE STATEMENT OF A MATERIAL FACT, MADE BY AN
ATTORNEY UNDER OATH DURING A FEDERAL DISTRICT COURT'S EXAMINATION INTO
HIS FITNESS TO PRACTICE BEFORE IT, CONSTITUTES PERJURY WITHIN THE
MEANING OF 18 U.S.C. SEC. 1621, WHEN THE EXAMINATION WAS MADE UNDER A
LOCAL RULE OF THE DISTRICT COURT SPECIFICALLY AUTHORIZING SUCH
EXAMINATION UNDER OATH; SINCE SUCH AN EXAMINATION IS A "CASE IN WHICH A
LAW OF THE UNITED STATES AUTHORIZES AN OATH TO BE ADMINISTERED," WITHIN
THE MEANING OF THE STATUTE.  PP. 574-577. 

(A)  THE PHRASE "A LAW OF THE UNITED STATES," AS USED IN THE PERJURY
STATUTE, IS NOT LIMITED TO STATUTES, BUT INCLUDES AS WELL RULES AND
REGULATIONS WHICH HAVE BEEN LAWFULLY AUTHORIZED AND HAVE A CLEAR
LEGISLATIVE BASE, AND ALSO DECISIONAL LAW.  P. 575. 

(B)  THERE CAN BE NO DOUBT THAT THE DISTRICT COURT WAS LAWFULLY
AUTHORIZED TO PRESCRIBE ITS LOCAL RULES AND THAT THEY HAVE A CLEAR
LEGISLATIVE BASE.  PP. 575-577. 

UNITED STATES V. HVASS. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF IOWA.  MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE
COURT. 

THE QUESTION FOR DECISION IS WHETHER A WILLFULLY FALSE STATEMENT OF A
MATERIAL FACT, MADE BY AN ATTORNEY UNDER OATH DURING THE DISTRICT
COURT'S EXAMINATION, UNDER ITS LOCAL RULE, INTO HIS FITNESS TO PRACTICE
BEFORE IT, CONSTITUTES PERJURY WITHIN THE MEANING OF 18 U.S.C. SEC.
1621.  (FN1) 

ACTING UNDER 28 U.S.C. SECS. 1654, 2071, AND RULE 83 OF FEDERAL RULES
OF CIVIL PROCEDURE, AUTHORIZING FEDERAL COURTS TO PRESCRIBE RULES FOR
THE CONDUCT OF THEIR BUSINESS, THE DISTRICT COURTS FOR THE NORTHERN AND
SOUTHERN DISTRICTS OF IOWA PROMULGATED LOCAL RULES GOVERNING PRACTICE
IN THOSE COURTS.  THEIR RULE 3, IN PERTINENT PART, PROVIDES: 

"ALL ATTORNEYS RESIDING OUTSIDE OF THE STATE OF IOWA AND HAVING CIVIL
MATTERS IN THE COURT SHALL ASSOCIATE WITH THEM A RESIDENT ATTORNEY ON
WHOM NOTICE MAY BE SERVED AND WHO SHALL HAVE THE AUTHORITY TO ACT FOR
AND ON BEHALF OF THE CLIENT IN ALL MATTERS  ...  .  NON-RESIDENT
ATTORNEYS WHO HAVE SO ASSOCIATED WITH THEM A RESIDENT ATTORNEY SHALL BE
PERMITTED TO PARTICIPATE IN A PARTICULAR CASE UPON SATISFACTORY SHOWING
OF GOOD MORAL CHARACTER. 

"PROVIDED FURTHER THAT WHERE THE ACTION IS ONE TO RECOVER DAMAGES FOR
PERSONAL INJURIES SUSTAINED IN IOWA BY ONE WHO AT THE TIME WAS A
RESIDENT OF IOWA  ...  , THE COURT MAY ON ITS OWN MOTION, OR ON MOTION
OF A MEMBER OF THE BAR OF EITHER DISTRICT, BEFORE PERMITTING A
NONRESIDENT ATTORNEY TO PARTICIPATE IN THE CASE, REQUIRE A SATISFACTORY
SHOWING THAT THE CONNECTION OF THE SAID ATTORNEY WITH THE CASE WAS NOT
OCCASIONED OR BROUGHT ABOUT IN VIOLATION OF THE STANDARDS OF CONDUCT
SPECIFIED IN RULE 8 HEREOF.  (FN2)  THE COURT AS A PART OF SAID SHOWING
MAY REQUIRE THE PLAINTIFF AND THE SAID ATTORNEY TO APPEAR AND BE
EXAMINED UNDER OATH." 

APPELLEE, AN ATTORNEY RESIDING AND MAINTAINING HIS OFFICE IN
MINNEAPOLIS, MINNESOTA, HAD INSTITUTED TWO ACTIONS IN THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF IOWA, AS COUNSEL FOR CITIZENS OF
IOWA, SEEKING DAMAGES FOR BODILY INJURIES WHICH THEY HAD SUSTAINED IN
THAT STATE.  ON OCTOBER 3, 1955, THE COURT, ACTING UNDER ITS RULE 3,
ENTERED AN ORDER SCHEDULING A HEARING TO BE HELD BY THE COURT ON
OCTOBER 12, 1955, FOR THE PURPOSE OF AFFORDING AN OPPORTUNITY TO
APPELLEE TO SHOW THAT HIS CONNECTION WITH THE TWO DAMAGE SUITS WAS NOT
BROUGHT ABOUT IN VIOLATION OF THE STANDARDS OF CONDUCT SPECIFIED IN ITS
RULE 8, AND DIRECTING APPELLEE TO APPEAR AT THAT TIME AND TO SUBMIT TO
AN EXAMINATION UNDER OATH, IF HE WISHED FURTHER TO PARTICIPATE AS
COUNSEL IN THOSE ACTIONS.  APPELLEE APPEARED AT THE HEARING AND, AFTER
BEING SWORN BY THE CLERK, WAS EXAMINED BY THE DISTRICT ATTORNEY ON
MATTERS DEEMED RELEVANT TO THE HEARING.  ON NOVEMBER 1, 1955, THE COURT
ENTERED AN ORDER FINDING THAT "THE APPLICANT HAD NOT MADE SATISFACTORY
SHOWING OF THE MATTERS WHICH MUST BE SATISFACTORILY SHOWN UNDER SAID
LOCAL RULE 3," AND IT STRUCK HIS APPEARANCE AS COUNSEL IN THE TWO
DAMAGE ACTIONS FROM THE RECORD. 

ON MARCH 20, 1956, A FOUR-COUNT INDICTMENT WAS RETURNED AGAINST
APPELLEE IN THE SAME DISTRICT COURT.  EACH COUNT CHARGED THAT APPELLEE,
WHILE UNDER OATH AS A WITNESS AT THE HEARING OF OCTOBER 12, 1955,
"UNLAWFULLY, WILFULLY, AND KNOWINGLY, AND CONTRARY TO HIS OATH, STATED
MATERIAL MATTERS WHICH HE DID NOT BELIEVE TO BE TRUE" (IN PARTICULARS
SET FORTH IN EACH COUNT), "IN VIOLATION OF SECTION 1621, TITLE 18,
UNITED STATES CODE."  APPELLEE MOVED TO DISMISS THE INDICTMENT FOR
FAILURE OF ANY OF THE COUNTS TO STATE AN OFFENSE AGAINST THE UNITED
STATES.  THE COURT, (FN3) AFTER FULL HEARING UPON THE MOTION, CONCLUDED
"THAT RULE 3, UNDER WHICH THE DEFENDANT TOOK HIS OATH, IS NOT SUCH A
LAW OF THE UNITED STATES AS WAS INTENDED BY CONGRESS TO SUPPORT AN
INDICTMENT FOR PERJURY," AND, ON THAT GROUND, DISMISSED THE
INDICTMENT.  147 F. SUPP. 594.  THE GOVERNMENT BROUGHT THE CASE HERE BY
DIRECT APPEAL UNDER THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 3731.  WE
POSTPONED FURTHER CONSIDERATION OF THE QUESTION OF JURISDICTION TO THE
HEARING ON THE MERITS, 353 U.S. 980. 

AT THE THRESHOLD WE ARE MET WITH APPELLEE'S CONTENTION THAT WE DO NOT
HAVE JURISDICTION OF THIS APPEAL.  WE THINK THE CONTENTION IS UNSOUND. 
18 U.S.C. SEC. 3731, IN PERTINENT PART, PROVIDES THAT:  "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  ...  FROM A DECISION
OR JUDGMENT  ...  DISMISSING ANY INDICTMENT  ...  WHERE SUCH DECISION
OR JUDGMENT IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT  ...  IS FOUNDED."  THIS INDICTMENT WAS
FOUNDED ON THE FEDERAL PERJURY STATUTE, 18 U.S.C. SEC. 1621.  THE
DISTRICT COURT DISMISSED THE INDICTMENT NOT BECAUSE OF ANY DEFICIENCY
IN PLEADING OR PROCEDURE BUT SOLELY BECAUSE IT HELD THAT RULE 3 "IS NOT
SUCH A LAW OF THE UNITED STATES AS WAS INTENDED BY CONGRESS TO SUPPORT
AN INDICTMENT FOR PERJURY."  IT THUS DISMISSED THE INDICTMENT UPON ITS
CONSTRUCTION OF THE FEDERAL PERJURY STATUTE.  IN THESE CIRCUMSTANCES,
THE QUESTION OF OUR JURISDICTION IS SETTLED BY UNITED STATES V. BORDEN
CO., 308 U.S. 188, 193: 

"WHEN THE DISTRICT COURT HOLDS THAT THE INDICTMENT, NOT MERELY
BECAUSE OF SOME DEFICIENCY IN PLEADING BUT WITH RESPECT TO THE
SUBSTANCE OF THE CHARGE, DOES NOT ALLEGE A VIOLATION OF THE STATUTE
UPON WHICH THE INDICTMENT IS FOUNDED, THAT IS NECESSARILY A
CONSTRUCTION OF THAT STATUTE." 

SUCH IS THE CASE HERE, AND THE RESULT IS THAT WE HAVE JURISDICTION OF
THIS APPEAL. 

THIS BRINGS US TO THE MERITS.  THE SCOPE OF THIS APPEAL IS VERY
LIMITED.  NO QUESTION CONCERNING THE VALIDITY OF THE DISTRICT COURT'S
RULE 3 IS PROPERLY BEFORE US.  NOR ARE WE AT LIBERTY TO CONSIDER ANY
QUESTION OTHER THAN THE SINGLE ONE DECIDED BY THE DISTRICT COURT, FOR
WHEN, AS HERE, "THE DISTRICT COURT HAS RESTED ITS DECISION UPON THE
CONSTRUCTION OF THE UNDERLYING STATUTE THIS COURT IS NOT AT LIBERTY TO
GO BEYOND THE QUESTION OF THE CORRECTNESS OF THAT CONSTRUCTION AND
CONSIDER OTHER OBJECTIONS TO THE INDICTMENT.  THE GOVERNMENT'S APPEAL
DOES NOT OPEN THE WHOLE CASE."   UNITED STATES V. BORDEN CO., SUPRA, AT
193. 

"THE ESSENTIAL ELEMENTS OF THE CRIME OF PERJURY AS DEFINED IN 18
U.S.C. SEC. 1621 ARE (1) AN OATH AUTHORIZED BY A 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."  UNITED STATES V. DEBROW, 346 U.S. 374, 376.  ONLY THE FIRST
ELEMENT OF PERJURY IS INVOLVED HERE BECAUSE THE DISTRICT COURT'S
DISMISSAL OF THE INDICTMENT WAS UPON THE SOLE GROUND THAT "RULE 3  ...
IS NOT SUCH A LAW OF THE UNITED STATES AS WAS INTENDED BY CONGRESS TO
SUPPORT AN INDICTMENT FOR PERJURY."  THEREFORE, THE ONLY QUESTION OPEN
HERE IS WHETHER THE ADMISSION HEARING, HELD UNDER THE DISTRICT COURT'S
RULE 3, AND AT WHICH APPELLEE TESTIFIED UNDER OATH, WAS A "CASE IN
WHICH A LAW OF THE UNITED STATES AUTHORIZES AN OATH TO BE
ADMINISTERED," WITHIN THE MEANING OF THAT CLAUSE AS USED IN THE PERJURY
STATUTE.  WE THINK IT WAS. 

THE PHRASE "A LAW OF THE UNITED STATES," AS USED IN THE PERJURY
STATUTE, IS NOT LIMITED TO STATUTES, BUT INCLUDES AS WELL RULES AND
REGULATIONS WHICH HAVE BEEN LAWFULLY AUTHORIZED AND HAVE A CLEAR
LEGISLATIVE BASE (UNITED STATES V. SMULL, 236 U.S. 405; CAHA V. UNITED
STATES, 152 U.S. 211; VIERECK V. UNITED STATES, 318 U.S. 236; LILLY V.
GRAND TRUNK R. CO., 317 U.S. 481), AND ALSO DECISIONAL LAW.  GLICKSTEIN
V. UNITED STATES, 222 U.S. 139.  AND SEE WIGMORE, EVIDENCE (3D ED.),
SECS. 1815, 1816, 1824.  (FN4) 

28 U.S.C. SEC. 2071 PROVIDES:  "THE SUPREME COURT AND ALL COURTS
ESTABLISHED BY ACT OF CONGRESS MAY FROM TIME TO TIME PRESCRIBE RULES
FOR THE CONDUCT OF THEIR BUSINESS.  SUCH RULES SHALL BE CONSISTENT WITH
ACTS OF CONGRESS AND RULES OF PRACTICE AND PROCEDURE PRESCRIBED BY THE
SUPREME COURT."  AND 28 U.S.C.A. SEC. 1654 PROVIDES:  "IN ALL COURTS OF
THE UNITED STATES THE PARTIES MAY PLEAD AND CONDUCT THEIR OWN CASES
PERSONALLY OR BY COUNSEL AS, BY THE RULES OF SUCH COURTS, RESPECTIVELY,
ARE PERMITTED TO MANAGE AND CONDUCT CAUSES THEREIN."  CONSISTENTLY,
RULE 83 OF FEDERAL RULES OF CIVIL PROCEDURE, IN PERTINENT PART,
PROVIDES:  "EACH DISTRICT COURT BY ACTION OF A MAJORITY OF THE JUDGES
THEREOF MAY FROM TIME TO TIME MAKE AND AMEND RULES GOVERNING ITS
PRACTICE NOT INCONSISTENT WITH THESE RULES  ...  ."  THESE STATUTES AND
RULE 83 LEAVE NO ROOM TO DOUBT THAT THE DISTRICT COURT WAS LAWFULLY
AUTHORIZED TO PRESCRIBE ITS LOCAL RULES AND THAT THEY HAVE A CLEAR
LEGISLATIVE BASE.  WHETHER OR NOT ITS RULE 3 IS INVALID FOR ANY REASON
WHICH, AS STATED, IS A QUESTION NOT BEFORE US - IT WAS PRESCRIBED
PURSUANT TO STATUTORY AUTHORITY, AND EXPRESSLY PROVIDES THAT, UNDER THE
CONDITIONS SPECIFIED, THE COURT MAY REQUIRE THE "ATTORNEY TO APPEAR AND
BE EXAMINED UNDER OATH." 

RULE 3 HAD AT LEAST AS CLEAR A LEGISLATIVE BASE AS DID THE
REGULATIONS INVOLVED IN CAHA V. UNITED STATES, SUPRA, AND UNITED STATES
V. SMULL, SUPRA.  IN THE CAHA CASE DEFENDANT WAS INDICTED UNDER THE
FEDERAL PERJURY STATUTE - THEN IN PRECISELY THE SAME TERMS AS IT IS NOW
- AND CHARGED WITH PERJURY THROUGH THE MAKING OF A FALSE AFFIDAVIT TO
OFFICIALS OF THE LAND OFFICE OF THE DEPARTMENT OF THE INTERIOR IN
RESPECT OF A CONTEST, THEN PENDING IN THE LAND OFFICE, OVER THE
VALIDITY OF A HOMESTEAD ENTRY.  THE DEFENDANT WAS CONVICTED AND ON
APPEAL CONTENDED THAT NO STATUTE AUTHORIZED SUCH A CONTEST AND THAT
THEREFORE IT COULD NOT "BE SAID THAT THE OATH WAS TAKEN IN A 'CASE IN
WHICH A LAW OF THE UNITED STATES AUTHORIZES AN OATH TO BE
ADMINISTERED.'"  BY STATUTE CONGRESS HAD AUTHORIZED THE COMMISSIONER OF
THE GENERAL LAND OFFICE, UNDER THE DIRECTION OF THE SECRETARY OF THE
INTERIOR, "TO ENFORCE AND CARRY INTO EXECUTION, BY APPROPRIATE
REGULATIONS, EVERY PART OF THE LAWS RELATING TO PUBLIC LANDS." 
PURSUANT TO THAT AUTHORITY THE COMMISSIONER ADOPTED RULES OF PRACTICE
INCLUDING AN EXPRESS PROVISION "FOR A CONTEST BEFORE THE LOCAL LAND
OFFICERS IN RESPECT TO HOMESTEAD AS WELL AS PREEMPTION ENTRIES, AND FOR
THE TAKING OF TESTIMONY BEFORE SUCH OFFICERS  ...  ."  THIS COURT, IN
DENYING DEFENDANT'S CONTENTION AND IN SUSTAINING THE CONVICTION, SAID: 

"WE HAVE, THEREFORE, A GENERAL GRANT OF AUTHORITY TO THE LAND
DEPARTMENT TO PRESCRIBE APPROPRIATE REGULATIONS FOR THE DISPOSITION OF
THE PUBLIC LAND  ...  .  CLEARLY THEN  ...  THE LOCAL LAND OFFICERS IN
HEARING AND DECIDING UPON A CONTEST WITH RESPECT TO A HOMESTEAD ENTRY
CONSTITUTED A COMPETENT TRIBUNAL, AND THE CONTEST SO PENDING BEFORE
THEM WAS A CASE IN WHICH THE LAWS OF THE UNITED STATES AUTHORIZED AN
OATH TO BE ADMINISTERED."  ID., AT 218. 

THE SMULL CASE INVOLVED VERY SIMILAR FACTS.  THE DISTRICT COURT
SUSTAINED A DEMURRER TO THE INDICTMENT, "RULING THAT THE AFFIDAVIT WAS
NOT WITHIN THE STATUTE DEFINING PERJURY."  THE GOVERNMENT BROUGHT THE
CASE HERE UNDER THE CRIMINAL APPEALS ACT.  THIS COURT REVERSED,
SAYING: 

"THE CHARGE OF CRIME MUST HAVE CLEAR LEGISLATIVE BASIS  ...  .  THIS
STATUTE (THE PERJURY STATUTE, IN PRECISELY THE SAME TERMS AS THE
PRESENT ONE) TAKES THE PLACE OF THE SIMILAR PROVISION OF SEC. 5392 OF
THE REVISED STATUTES, WHICH IN TURN WAS A SUBSTITUTE FOR A NUMBER OF
STATUTES IN REGARD TO PERJURY AND WAS PHRASED SO AS TO EMBRACE ALL
CASES OF FALSE SWEARING WHETHER IN A COURT OF JUSTICE OR BEFORE
ADMINISTRATIVE OFFICERS ACTING WITHIN THEIR POWERS  ...  .  IT CANNOT
BE DOUBTED THAT A CHARGE OF PERJURY MAY BE BASED UPON THE PERJURY
STATUTE WHERE THE AFFIDAVIT IS REQUIRED EITHER EXPRESSLY BY AN ACT OF
CONGRESS OR BY AN AUTHORIZED REGULATION OF THE GENERAL LAND OFFICE, AND
IS KNOWN BY THE AFFIANT TO BE FALSE IN A MATERIAL STATEMENT  ...  .
WHEN BY A VALID REGULATION THE DEPARTMENT REQUIRES THAT AN AFFIDAVIT
SHALL BE MADE BEFORE AN OFFICER OTHERWISE COMPETENT, THAT OFFICER IS
AUTHORIZED TO ADMINISTER THE OATH WITHIN THE MEANING OF THE PERJURY
STATUTE.  THE FALSE SWEARING IS MADE A CRIME, NOT BY THE DEPARTMENT,
BUT BY CONGRESS; THE STATUTE, NOT THE DEPARTMENT, FIXES THE PENALTY." 
(FN5)  ID., AT 408-409. 

IT FOLLOWS THAT THE ADMISSION HEARING, HELD UNDER THE DISTRICT
COURT'S RULE 3, AND AT WHICH APPELLEE TESTIFIED UNDER OATH, WAS A "CASE
IN WHICH A LAW OF THE UNITED STATES AUTHORIZES AN OATH TO BE
ADMINISTERED," WITHIN THE MEANING OF THAT CLAUSE AS USED IN THE PERJURY
STATUTE. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED. 

FN1  THAT SECTION, IN PERTINENT PART, PROVIDES:  "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,
...  WILLFULLY AND CONTRARY TO SUCH OATH STATES  ...  ANY MATERIAL
MATTER WHICH HE DOES NOT BELIEVE TO BE TRUE, IS GUILTY OF PERJURY  ...
."    FN2  RULE 8 IS A SUBSTANTIAL ADOPTION OF THE CANONS OF
PROFESSIONAL ETHICS OF THE AMERICAN BAR ASSOCIATION. 

FN3  THE COURT WAS THEN BEING PRESIDED OVER BY A DISTRICT JUDGE FROM
ANOTHER DISTRICT, SITTING BY DESIGNATION. 

FN4  THE AUTHOR THERE SHOWS THAT THE REQUIREMENT THAT A WITNESS MUST
TAKE AN OATH BEFORE GIVING TESTIMONY GOES BACK TO EARLY CIVILIZATIONS
AND HAS A LONG HISTORY AT COMMON LAW (SEC. 1815), AND THAT FOR
CENTURIES ANGLO-AMERICAN LAW HAS REMAINED FAITHFUL TO THE PRECEPT THAT
"FOR ALL TESTIMONIAL STATEMENTS MADE IN COURT THE OATH IS A
REQUISITE."  SEC. 1824.    FN5  THESE CASES, AS WELL AS UNITED STATES
V. MOREHEAD, 243 U.S. 607, SHOW THAT THE PERJURY STATUTE COVERS EX
PARTE PROCEEDINGS OR INVESTIGATIONS AS WELL AS ORDINARY ADVERSARY SUITS
AND PROCEEDINGS. 

MR. JUSTICE DOUGLAS AGREES THAT THE COURT HAS JURISDICTION OF THE
APPEAL; BUT HE DISSENTS ON THE MERITS.  IN HIS VIEW THIS JUDGE-MADE
RULE IS NOT "A LAW OF THE UNITED STATES" WITHIN THE MEANING OF THE
PERJURY STATUTE, 18 U.S.C. SEC. 1621. 
..END :




















HARMON V. BRUCKER 355 U.S. 579 


NO. 80.  ARGUED JANUARY 14-15, 1958 - DECIDED MARCH 3, 1958 - 100 U.S.
APP. D.C. 190, 256, 243 F.2D 613, 834, REVERSED. 


THE SECRETARY OF THE ARMY ISSUED LESS THAN "HONORABLE" DISCHARGE
CERTIFICATES TO TWO SOLDIERS, BASED ON THEIR ACTIVITIES PRIOR TO
INDUCTION.  THIS ACTION WAS SUSTAINED BY THE ARMY REVIEW BOARD UNDER 38
U.S.C. SEC. 693H.  THE SOLDIERS SUED IN A FEDERAL DISTRICT COURT FOR
JUDGMENTS DECLARING THAT THE SECRETARY HAD EXCEEDED HIS AUTHORITY AND
DIRECTING HIM TO ISSUE "HONORABLE" DISCHARGE CERTIFICATES TO THEM. 
HELD: 

1.  THE DISTRICT COURT HAD JURISDICTION TO CONSTRUE THE APPLICABLE
STATUTES TO DETERMINE WHETHER THE SECRETARY HAD EXCEEDED HIS
AUTHORITY.  PP. 581-582. 

2.  THE REQUIREMENT OF 10 U.S.C. SEC. 652A THAT NO PERSON BE
DISCHARGED FROM MILITARY SERVICE "WITHOUT A CERTIFICATE OF DISCHARGE"
MUST BE READ IN HARMONY WITH 38 U.S.C. SEC. 693H, WHICH REQUIRES THAT
THE FINDINGS OF THE ARMY REVIEW BOARD "SHALL BE BASED UPON ALL
AVAILABLE RECORDS OF THE ARMY RELATING TO THE PERSON REQUESTING SUCH
REVIEW"; THE WORD "RECORDS" MEANS RECORDS OF MILITARY SERVICE; AND THE
SECRETARY EXCEEDED HIS AUTHORITY IN BASING THESE DISCHARGES ON THE
SOLDIERS' ACTIVITIES PRIOR TO INDUCTION.  PP. 582-583. 

HARMON V. BRUCKER, SECRETARY OF THE ARMY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 141, ABRAMOWITZ V. BRUCKER, SECRETARY OF THE ARMY,
ARGUED JANUARY 15, 1958. 

PER CURIAM. 

THE SECRETARY OF THE ARMY, RELYING UPON 10 U.S.C. SEC. 652A (ACT OF
JUNE 4, 1920, SEC. 1, SUBCH. II, 41 STAT. 809, AS AMENDED) AND 38
U.S.C. SEC. 693H (ACT OF JUNE 22, 1944, 58 STAT. 286, AS AMENDED), AND
UPON DEPARTMENT OF DEFENSE AND ARMY REGULATIONS DEEMED TO BE AUTHORIZED
BY THOSE STATUTES, DISCHARGED PETITIONERS FROM THE ARMY AND ISSUED TO
EACH OF THEM A DISCHARGE CERTIFICATE IN FORM OTHER THAN "HONORABLE." 
IN SO DOING, HE TOOK INTO ACCOUNT PREINDUCTION ACTIVITIES OF
PETITIONERS RATHER THAN BASING HIS ACTION EXCLUSIVELY UPON THE RECORD
OF THEIR MILITARY SERVICE.  AFTER HAVING EXHAUSTED AVAILABLE
ADMINISTRATIVE REMEDIES, PETITIONERS SEPARATELY BROUGHT THESE
PROCEEDINGS IN THE DISTRICT COURT SEEKING JUDGMENTS DECLARING THOSE
DETERMINATIONS AND ACTIONS OF THE SECRETARY TO BE VOID AS IN EXCESS OF
HIS POWERS UNDER THE CIRCUMSTANCES, AND DIRECTING HIM TO ISSUE
"HONORABLE" DISCHARGE CERTIFICATES TO THEM.  BEING OF THE VIEW THAT IT
WAS WITHOUT JURISDICTION TO CONSIDER THE ACTIONS, THE DISTRICT COURT
DISMISSED THEM, 137 F. SUPP. 475, AND THE COURT OF APPEALS AFFIRMED,
WITH ONE JUDGE DISSENTING, 100 U.S. APP. D.C. 190, 256, 243 F.2D 613,
834.  WE GRANTED CERTIORARI, 353 U.S. 956 AND 354 U.S. 920. 

THE RESPECTIVE CONTENTIONS MADE HERE MAY BE SUMMARIZED AS FOLLOWS: 

(1)  PETITIONERS CONTEND (A) THAT THE SECRETARY ACTED IN EXCESS OF
HIS POWERS, BECAUSE THE STATUTES REFERRED TO DID NOT AUTHORIZE, NOR
SUPPORT DEPARTMENT OF DEFENSE AND ARMY REGULATIONS WHEN TAKEN TO
AUTHORIZE, CONSIDERATION OF PETITIONERS' PREINDUCTION ACTIVITIES IN
DETERMINING THE TYPE OF DISCHARGES TO BE ISSUED TO THEM UPON SEPARATION
FROM THE ARMY, AND (B) THAT THE ACTION OF RESPONDENT IN ISSUING TO THEM
LESS THAN "HONORABLE" DISCHARGES, AND THE ACTION OF THE DISTRICT COURT
AND OF THE COURT OF APPEALS IN REFUSING REVIEW FOR WHAT THEY THOUGHT
WAS LACK OF JUDICIAL POWER, DEPRIVED PETITIONERS OF DUE PROCESS UNDER
THE FIFTH AMENDMENT, AND OF A JUDICIAL TRIAL UNDER THE SIXTH AMENDMENT,
AND OF A JUDICIAL TRIAL UNDER THE SIXTH AMENDMENT, OF THE
CONSTITUTION. 

(2)  RESPONDENT CONTENDS (A) THAT BY 10 U.S.C. SEC. 652A, CONGRESS
REQUIRED THAT, UPON SEPARATION FROM THE ARMY, A FORMER SOLDIER BE GIVEN
"A CERTIFICATE OF DISCHARGE,  ...  IN THE MANNER PRESCRIBED BY THE
SECRETARY OF THE DEPARTMENT OF THE ARMY  ...  "; (B) THAT, INASMUCH AS
ALL CERTIFICATES OF DISCHARGE ARE NOT REQUIRED TO BE "HONORABLE" ONES,
HE WAS AUTHORIZED TO, AND DID, PRESCRIBE VARIOUS TYPES OF DISCHARGE
CERTIFICATES RUNNING THE GAMUT FROM THE ACCOLADE OF "HONORABLE
DISCHARGE" TO THE ODIOUS "DISHONORABLE DISCHARGE"; (C) THAT BY 38
U.S.C. SEC. 693H, CONGRESS DIRECTED THE ESTABLISHMENT OF AN ARMY REVIEW
BOARD WITH POWER TO REVIEW, UPON ITS OWN MOTION OR THAT OF THE FORMER
SOLDIER, THE TYPE OF DISCHARGE ISSUED, AND "TO CHANGE, CORRECT, OR
MODIFY ANY DISCHARGE OR DISMISSAL, AND TO ISSUE A NEW DISCHARGE IN
ACCORD WITH THE FACTS PRESENTED TO THE BOARD," AND PRESCRIBED THAT "THE
FINDINGS THEREOF SHALL BE FINAL SUBJECT ONLY TO REVIEW BY THE SECRETARY
OF THE ARMY"; (D) THAT THE FINDINGS OF THE BOARD, MADE UNDER THOSE
PROCEDURES SO AFFORDED TO AND AVAILED OF BY PETITIONERS, WERE FINAL
SUBJECT ONLY TO REVIEW BY THE SECRETARY OF THE ARMY; AND (E) THAT,
THEREFORE, SUCH ADMINISTRATIVE PROCEDURE IS EXCLUSIVE AND THE COURTS
ARE WITHOUT JURISDICTION TO REVIEW THOSE FINDINGS. 

IN KEEPING WITH OUR DUTY TO AVOID DECIDING CONSTITUTIONAL QUESTIONS
PRESENTED UNLESS ESSENTIAL TO PROPER DISPOSITION OF A CASE, WE LOOK
FIRST TO PETITIONERS' NONCONSTITUTIONAL CLAIM THAT RESPONDENT ACTED IN
EXCESS OF POWERS GRANTED HIM BY CONGRESS.  GENERALLY, JUDICIAL RELIEF
IS AVAILABLE TO ONE WHO HAS BEEN INJURED BY AN ACT OF A GOVERNMENT
OFFICIAL WHICH IS IN EXCESS OF HIS EXPRESS OR IMPLIED POWERS.  AMERICAN
SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94, 108; PHILADELPHIA
CO. V. STIMSON, 223 U.S. 605, 621-622; STARK V. WICKARD, 321 U.S. 288,
310.  THE DISTRICT COURT HAD NOT ONLY JURISDICTION TO DETERMINE ITS
JURISDICTION BUT ALSO POWER TO CONSTRUE THE STATUTES INVOLVED TO
DETERMINE WHETHER THE RESPONDENT DID EXCEED HIS POWERS.  IF HE DID SO,
HIS ACTIONS WOULD NOT CONSTITUTE EXERCISES OF HIS ADMINISTRATIVE
DISCRETION, AND, IN SUCH CIRCUMSTANCES AS THOSE BEFORE US, JUDICIAL
RELIEF FROM THIS ILLEGALITY WOULD BE AVAILABLE.  MOREOVER, THE CLAIMS
PRESENTED IN THESE CASES MAY BE ENTERTAINED BY THE DISTRICT COURT
BECAUSE PETITIONERS HAVE ALLEGED JUDICIALLY COGNIZABLE INJURIES.  CF.
JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 159,
160, AND SEE ARMY REGULATION 615-360, PAR. 7. 

THIS BRINGS US TO THE MERITS.  THE SOLICITOR GENERAL CONCEDED THAT IF
THE DISTRICT COURT HAD JURISDICTION TO REVIEW RESPONDENT'S
DETERMINATIONS AS TO THE DISCHARGES HE ISSUED THESE PETITIONERS AND IF
PETITIONERS HAD STANDING TO BRING THESE SUITS, THE ACTION OF RESPONDENT
IS NOT SUSTAINABLE.  ON THE BASIS OF THAT CONCESSION AND OUR
CONSIDERATION OF THE LAW AND THIS RECORD WE CONCLUDE THAT THE ACTIONS
OF THE SECRETARY OF THE ARMY CANNOT BE SUSTAINED IN LAW.  BY SEC. 652A,
WHICH PROVIDES THAT NO PERSON BE DISCHARGED FROM MILITARY SERVICE
"WITHOUT A CERTIFICATE OF DISCHARGE," CONGRESS GRANTED TO THE SECRETARY
OF THE ARMY AUTHORITY TO ISSUE DISCHARGES.  BY SEC. 693H IT PROVIDED
FOR REVIEW BY THE ARMY REVIEW BOARD OF THE EXERCISE OF SUCH AUTHORITY. 
SURELY THESE TWO PROVISIONS MUST BE GIVEN AN HARMONIOUS READING TO THE
END THAT THE BASIS ON WHICH THE SECRETARY'S ACTION IS REVIEWED IS
COTERMINOUS WITH THE BASIS ON WHICH HE IS ALLOWED TO ACT.  SECTION 693H
EXPRESSLY REQUIRES THAT THE FINDINGS OF THE ARMY REVIEW BOARD "SHALL BE
BASED UPON ALL AVAILABLE RECORDS OF THE ARMY RELATING TO THE PERSON
REQUESTING SUCH REVIEW  ...  ."  WE THINK THE WORD "RECORDS," AS USED
IN THE STATUTE, MEANS RECORDS OF MILITARY SERVICE, AND THAT THE
STATUTE, PROPERLY CONSTRUED, MEANS THAT THE TYPE OF DISCHARGE TO BE
ISSUED IS TO BE DETERMINED SOLELY BY THE SOLDIER'S MILITARY RECORD IN
THE ARMY.  AN AUTHORITATIVE CONSTRUCTION OF THE CONGRESSIONAL GRANT OF
POWER IS TO BE FOUND IN THE REGULATIONS OF THE DEPARTMENT OF THE ARMY. 
ARMY REGULATION 615-375, PAR. 2(B) STATES:  "THE PURPOSE OF A DISCHARGE
CERTIFICATE IS TO RECORD THE SEPARATION OF AN INDIVIDUAL FROM THE
MILITARY SERVICE AND TO SPECIFY THE CHARACTER OF SERVICE RENDERED
DURING THE PERIOD COVERED BY THE DISCHARGE."  MOREOVER, THE ARMY'S
REGULATION 615-360, PAR. 7 (WHICH WAS IN EFFECT DURING THE TIMES HERE
INVOLVED), FURTHER STATES:  "BECAUSE THE TYPE OF DISCHARGE MAY
SIGNIFICANTLY INFLUENCE THE INDIVIDUAL'S CIVILIAN RIGHTS AND
ELIGIBILITY FOR BENEFITS PROVIDED BY LAW, IT IS ESSENTIAL THAT ALL
PERTINENT FACTORS BE CONSIDERED SO THAT THE TYPE OF DISCHARGE WILL
REFLECT ACCURATELY THE NATURE OF SERVICE RENDERED  ...  ." 

THE JUDGMENTS OF THE COURT OF APPEALS ARE REVERSED AND THE CASES ARE
REMANDED TO THE DISTRICT COURT FOR THE RELIEF TO WHICH PETITIONERS ARE
ENTITLED IN THE LIGHT OF THIS OPINION.  REVERSED. 

MR. JUSTICE CLARK, DISSENTING. 

I WOULD AFFIRM THESE CASES ON THE BASIS OF JUDGE PRETTYMAN'S OPINION
IN THE COURT OF APPEALS.  HARMON V. BRUCKER, 100 U.S. APP. D.C. 190,
243 F.2D 613.  SINCE THIS COURT DOES NOT REACH THE CONSTITUTIONAL
CLAIMS CONSIDERED AND REJECTED BY JUDGE PRETTYMAN, HOWEVER, IT IS
APPROPRIATE TO ADD A WORD ABOUT THE COURT'S BASIS FOR ASSERTING
JURISDICTION AND REVERSING ON THE MERITS, NAMELY, THE FINDING THAT THE
ACTION OF THE SECRETARY OF THE ARMY WAS IN EXCESS OF HIS STATUTORY
AUTHORITY. 

AT THE OUTSET IT IS WELL TO STATE WHAT HARMON AND ABRAMOWITZ,
PETITIONERS IN THESE CASES, DO NOT CONTEND.  THEY DO NOT CONTEST THE
DECISION THAT THEIR RETENTION IN THE ARMY WAS INCONSISTENT WITH
NATIONAL SECURITY, NOR DO THEY CLAIM THAT THE PROCEDURES ADOPTED
VIOLATED THEIR LEGALLY PROTECTED RIGHTS.  THEY CONCEDE THE ARMY "AN
ABSOLUTE RIGHT TO DISCHARGE," BUT OBJECT TO ISSUANCE OF DISCHARGE
CERTIFICATES THAT REFLECT THE DETERMINATIONS UNDERLYING THE FACT OF
THEIR DISCHARGES, INSISTING THAT THE SECRETARY BE REQUIRED TO ISSUE
THEM HONORABLE DISCHARGES.  THE CONTROVERSY THUS IS CONFINED TO THE
TYPE OF DISCHARGE CERTIFICATE THAT MAY BE ISSUED TO SERVICEMEN
DISCHARGED BECAUSE OF PREINDUCTION ACTIVITY DEEMED TO RENDER THEM
UNDESIRABLE SECURITY RISKS. 

THROUGHOUT OUR HISTORY THE FUNCTION OF GRANTING DISCHARGE
CERTIFICATES HAS BEEN ENTRUSTED BY THE CONGRESS TO THE PRESIDENT AND,
THROUGH HIM, TO THE RESPECTIVE SECRETARIES OF THE ARMED FORCES.  AT NO
TIME UNTIL TODAY HAVE THE COURTS INTERFERED IN THE EXERCISE OF THIS
MILITARY FUNCTION.  (FN1) THE LACK OF ANY JUDICIAL REVIEW IS EVIDENCED
BY THE FACT THAT FOR OVER 70 YEARS CONGRESS ITSELF REVIEWED MILITARY
DISCHARGES AND FREQUENTLY ENACTED PRIVATE BILLS DIRECTING THE
APPROPRIATE SECRETARY TO CORRECT THE TYPE OF DISCHARGE CERTIFICATE
GIVEN.  BY LEGISLATION IN 1944 AND 1946, CONGRESS AUTHORIZED CREATION
OF ADMINISTRATIVE BOARDS TO WHICH IT TRANSFERRED THE REVIEW OF MILITARY
DISCHARGES (FN2) IN AN EFFORT TO CONSERVE ITS OWN TIME.  (FN3)  THAT
LEGISLATION MAKES NO PROVISION FOR JUDICIAL REVIEW; ON THE CONTRARY,
THE 1944 ACT EXPRESSLY STATES THAT THE FINDINGS OF THE ARMY DISCHARGE
REVIEW BOARD SHALL BE "FINAL SUBJECT ONLY TO REVIEW BY THE SECRETARY OF
THE ARMY," AND THE 1946 ACT, AS AMENDED IN 1951, (FN4) EXPRESSLY
PROVIDES THAT THE DETERMINATION OF THE BOARD TO CORRECT MILITARY
RECORDS SHALL BE "FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE
GOVERNMENT EXCEPT WHEN PROCURED BY MEANS OF FRAUD."  WHEN THIS
LEGISLATIVE EXPRESSION OF FINALITY IS VIEWED IN CONTEXT WITH THE
UNINTERRUPTED HISTORY OF CONGRESSIONAL REVIEW, CULMINATED BY CONGRESS'
TRANSFER OF THE REVIEW FUNCTION TO ADMINISTRATIVE BODIES, IT CANNOT BE
SAID, IN THE ABSENCE OF SPECIFIC LEGISLATIVE GRANT, THAT CONGRESS
INTENDED TO PERMIT JUDICIAL REVIEW.  (FN5)  THE COURT AVOIDS THESE
CONSIDERATIONS BY POSITING JURISDICTION TO REVIEW SIMPLY ON ITS
DETERMINATION THAT THE SECRETARY'S ACTION EXCEEDED HIS STATUTORY
AUTHORITY. 

IN REACHING THIS EXCEPTIONAL POSITION, THE COURT CONSTRUES SEC. 693H
OF THE 1944 ACT, SUPRA, WHICH PROVIDES THAT REVIEW OF DISCHARGES SHALL
BE BASED ON "ALL AVAILABLE RECORDS" OF THE DEPARTMENT INVOLVED, TO
INCLUDE NOT "ALL AVAILABLE RECORDS" OF THE ARMY CONCERNING PETITIONERS,
BUT MERELY THOSE "SOLELY CONCERNED WITH THE SOLDIER'S MILITARY RECORD
IN THE ARMY."  THIS LIMITATION OF THE CLEAR MEANING OF THE WORDS USED
BY THE CONGRESS - SO THAT "ALL" IS DEEMED TO MEAN "SOME" - IS LACKING
OF ANY JUSTIFICATION. 

THE CONSTRUCTION ADOPTED DOES ENABLE THE COURT TO BY-PASS THE
CONSTITUTIONAL QUESTIONS RAISED BY PETITIONERS.  IT IS TRUE THAT WE
AVOID DECISION OF CONSTITUTIONAL QUESTIONS "UNLESS ESSENTIAL TO PROPER
DISPOSITION OF A CASE."  BUT AS I SEE IT, THIS RULE SHOULD NEVER COMPEL
A TRANSPARENTLY ARTIFICIAL CONSTRUCTION OF A STATUTE.  THE COURT'S
INTERPRETATION HERE OF SEC. 693H MUST LEAVE BOTH THE PRESIDENT AND THE
CONGRESS IN A QUANDARY AS TO THE SOLUTION OF AN IMPORTANT PROBLEM
INVOLVING THE SECURITY OF OUR COUNTRY. 

IT IS TO BE REGRETTED THAT THE JUSTICE DEPARTMENT AND THE ARMY ARE AT
LOGGERHEADS OVER THE PROPER DISPOSITION OF THESE CASES ON THE MERITS. 
HOWEVER, THE FRANK CONFESSION THEREOF BY THE SOLICITOR GENERAL IS
HARDLY SUFFICIENT REASON TO ABANDON OUR LONG-ESTABLISHED POLICY OF NO
REVIEW IN SUCH MATTERS.  IF INJUSTICE HAS BEEN DONE I HAVE CONFIDENCE
IN THE CONGRESS OR THE PRESIDENT TO CORRECT IT.  THE PROPER RECOURSE OF
PETITIONERS IS IN THAT DIRECTION.  (FN6) 

JUDGE PRETTYMAN APTLY STATED:  "SURELY THE PRESIDENT MAY APPLY TO
MILITARY PERSONNEL THE SAME PROGRAM AND POLICIES AS TO SECURITY AND
LOYALTY WHICH HE APPLIES TO CIVILIAN PERSONNEL  ... .  IF HARMON CAN BE
DISCHARGED AS A SECURITY RISK, THE ARMY CAN DETERMINE WHETHER HE IS OR
IS NOT A SECURITY RISK.  AND IN THAT DETERMINATION SURELY NO DATA IS
MORE RELEVANT AND MATERIAL THAN ARE HIS PREINDUCTION HABITS, ACTIVITIES
AND ASSOCIATIONS."  100 U.S. APP. D.C., AT 197, 243 F.2D, AT 620.  THE
SAME TYPE OF DATA IS COMMONLY ACCEPTED AMONG CIVILIAN AGENCIES AS
RELEVANT TO THE SECURITY SCREENING OF ITS EMPLOYEES.  THOSE AGENCIES
ALSO ISSUE DISCHARGES IN THE FORM OF SEVERANCE PAPERS BASED UPON, AND
FREQUENTLY RECITING, SECURITY GROUNDS.  SUCH PAPERS REFLECT THE TRUE
CONDITION UPON WHICH THE DISCHARGE IS MADE.  IT SEEMS INCONGRUOUS TO ME
THAT THE MILITARY SERVICES SHOULD NOT BE ABLE TO DO AS MUCH.  I WOULD
NOT REQUIRE THE SECRETARY TO ISSUE A DISCHARGE CERTIFICATE WHICH ON ITS
FACE FALSIFIES THE REAL GROUNDS FOR ITS ISSUANCE. 

FN1  SEE THE NUMEROUS CASES CITED BY JUDGE PRETTYMAN IN SUPPORT OF
THIS CONCLUSION.  100 U.S. APP. D.C., AT 195, 243 F.2D, AT 618. 

FN2  SERVICEMEN'S READJUSTMENT ACT OF 1944, SEC. 301, 58 STAT. 286,
38 U.S.C. SEC. 693H; LEGISLATIVE REORGANIZATION ACT OF 1946, SEC. 207,
60 STAT. 837, AS AMENDED, 65 STAT. 655, 5 U.S.C. SEC. 191A.    FN3  S.
REP. NO. 1400, 79TH CONG., 2D SESS. 7. 

FN4  65 STAT. 655, 5 U.S.C. SEC. 191A. 

FN5  NEITHER THE COURT NOR PETITIONERS CLAIM THAT THE REVIEW
PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, 5 U.S.C.
SEC. 1001 ET SEQ., HAVE ANY APPLICATION TO THESE CASES. 
PARENTHETICALLY, THE SELECTIVE SERVICE ACT OF 1948, WHICH AUTHORIZES
PROMULGATION OF REGULATIONS COVERING DISCHARGES PRIOR TO EXPIRATION OF
THE REGULAR SERVICE PERIOD, 62 STAT. 606, 50 U.S.C. APP. SEC. 454(B),
SPECIFICALLY STATES, "ALL FUNCTIONS PERFORMED UNDER THIS TITLE  ...
SHALL BE EXCLUDED FROM THE OPERATION OF THE ADMINISTRATIVE PROCEDURE
ACT  ...  ."  62 STAT. 623, 50 U.S.C. APP. SEC. 463(B). 

FN6  SEE ORLOFF V. WILLOUGHBY, 345 U.S. 83, 93-94 (1953). 
..END :











UNITED STATES V. R.F. BALL CONSTRUCTION CO., INC. 355 U.S. 587 


NO. 97.  ARGUED JANUARY 27, 1958 - DECIDED MARCH 3, 1958 - 239 F.2D 384,
REVERSED. 


1.  IN THE CIRCUMSTANCES OF THIS CASE, AN "ASSIGNMENT" MADE BY A
SUBCONTRACTOR TO HIS PERFORMANCE-BOND SURETY OF ALL SUMS TO BECOME DUE
FOR PERFORMANCE OF THE SUBCONTRACT, AS SECURITY FOR ANY INDEBTEDNESS OR
LIABILITY THEREAFTER INCURRED BY THE SUBCONTRACTOR TO THE SURETY, DID
NOT CONSTITUTE THE SURETY A "MORTGAGEE" OF THOSE SUMS WITHIN THE
MEANING OF SEC. 3672(A) OF THE INTERNAL REVENUE CODE OF 1939, AS
AMENDED, PROVIDING THAT A FEDERAL TAX LIEN SHALL NOT BE VALID AS
AGAINST ANY "MORTGAGEE" UNTIL NOTICE THEREOF HAS BEEN FILED BY THE
COLLECTOR. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, AN ALLOWANCE OF ATTORNEY'S
FEES TO AN INTERPLEADER, WHO WAS THE DEBTOR OF THE TAXPAYER-ASSIGNOR,
WAS NOT ENTITLED TO PRIORITY IN THE INTERPLEADED FUND AS AGAINST A
FEDERAL TAX LIEN WHICH HAD PREVIOUSLY ATTACHED TO THE FUND. 

UNITED STATES V. R.F. BALL CONSTRUCTION CO., INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  THE INSTRUMENT INVOLVED BEING INCHOATE AND
UNPERFECTED, THE PROVISIONS OF SEC. 3672(A), REVENUE ACT OF 1939, 53
STAT. 449, AS AMENDED, 53 STAT. 882, 56 STAT. 957, DO NOT APPLY.  SEE
UNITED STATES V. SECURITY TRUST & SAVINGS BANK, 340 U.S. 47; UNITED
STATES V. CITY OF NEW BRITAIN, 347 U.S. 81, 86-87.  THE CLAIM OF THE
INTERPLEADER FOR ITS COSTS IS CONTROLLED BY UNITED STATES V. LIVERPOOL
& LONDON & GLOBE INS. CO., 348 U.S. 215. 

MR. JUSTICE WHITTAKER, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
BURTON AND MR. JUSTICE HARLAN JOIN, DISSENTING. 

THE QUESTION PRESENTED IS WHETHER AN "ASSIGNMENT" MADE BY A
SUBCONTRACTOR TO HIS PERFORMANCE-BOND SURETY OF ALL SUMS TO BECOME DUE
FOR PERFORMANCE OF THE SUBCONTRACT, AS SECURITY FOR ANY INDEBTEDNESS OR
LIABILITY THEREAFTER INCURRED BY THE SUBCONTRACTOR TO THE SURETY,
CONSTITUTED THE SURETY A "MORTGAGEE" OF THOSE SUMS WITHIN THE MEANING
OF SEC. 3672(A) OF THE INTERNAL REVENUE CODE OF 1939, AS AMENDED. 

BALL CONSTRUCTION COMPANY HAD CONTRACTED TO CONSTRUCT A HOUSING
PROJECT IN SAN ANTONIO, TEXAS.  ON JULY 17, 1951, IT ENTERED INTO A
SUBCONTRACT WITH JACOBS UNDER WHICH THE LATTER AGREED TO DO THE
NECESSARY PAINTING AND DECORATING OF THE BUILDINGS, AND TO FURNISH THE
LABOR AND MATERIALS REQUIRED, FOR A STIPULATED PRICE.  THE TERMS OF THE
SUBCONTRACT REQUIRED JACOBS TO FURNISH TO BALL A CORPORATE SURETY BOND,
IN THE AMOUNT OF $229,029, GUARANTEEING PERFORMANCE OF THE
SUBCONTRACT.  ON JULY 21, 1951, JACOBS, TO INDUCE RESPONDENT, UNITED
PACIFIC INSURANCE COMPANY, TO SIGN THE BOND AS SURETY, ASSIGNED TO THE
SURETY ALL SUMS DUE OR TO BECOME DUE UNDER THE SUBCONTRACT, AS
COLLATERAL SECURITY TO THE SURETY FOR ANY LIABILITY IT MIGHT SUSTAIN
UNDER ITS BOND THROUGH NONPERFORMANCE OF THE SUBCONTRACT, AND FOR "THE
PAYMENT OF ANY OTHER INDEBTEDNESS OR LIABILITY OF THE SUBCONTRACTOR TO
THE SURETY WHETHER THERETOFORE OR THEREAFTER INCURRED," NOT EXCEEDING
THE PENALTY OF THE BOND.  ON APRIL 30, 1953, A BALANCE OF $13,228.55
BECAME DUE FROM BALL UNDER THE SUBCONTRACT, BUT, BECAUSE OF OUTSTANDING
CLAIMS OF MATERIALMEN AGAINST JACOBS, BALL DID NOT PAY THE DEBT.  IN
MAY, JUNE, AND SEPTEMBER, 1953, THE DISTRICT DIRECTOR OF INTERNAL
REVENUE FILED, IN THE PROPER STATE OFFICE, FEDERAL TAX LIENS AGAINST
JACOBS, AGGREGATING $17,010.85.  BETWEEN DECEMBER 1953 AND MARCH 1954 -
THUS DURING THE COEXISTENT PERIOD OF THE BOND AND THE ASSIGNMENT -
JACOBS INCURRED INDEBTEDNESS, INDEPENDENT OF THE SUBCONTRACT, TO THE
SURETY IN THE AMOUNT OF $12,971.88. 

THE SURETY, CONTENDING THAT ITS ASSIGNMENT OF JULY 21, 1951,
CONSTITUTED IT A "MORTGAGEE" WITHIN THE MEANING OF SEC. 3672(A),
CLAIMED PRIORITY OF RIGHT TO THE $13,228.55 FUND OVER THE SUBSEQUENTLY
FILED FEDERAL TAX LIENS.  THE GOVERNMENT DISPUTED THE CLAIM AND
ASSERTED A SUPERIOR RIGHT TO THE FUND UNDER ITS TAX LIENS.  SEVERAL
CREDITORS OF JACOBS, HOLDING UNPAID CLAIMS FOR MATERIALS FURNISHED FOR
AND USED IN PERFORMING THE SUBCONTRACT, ASSERTED PRIORITY TO A PORTION
OF THE FUND OVER THE CLAIMS OF BOTH THE SURETY AND THE GOVERNMENT. 
BECAUSE OF THESE RIVAL CLAIMS, BALL INSTITUTED THIS INTERPLEADER
ACTION, UNDER WHICH HE IMPLEADED THE SURETY, THE GOVERNMENT, AND THE
MATERIALMEN, AND PAID THE FUND INTO THE REGISTRY OF THE COURT TO ABIDE
THE JUDGMENT.  BEFORE CONCLUSION OF THE TRIAL THE MATERIALMEN'S CLAIMS
WERE SATISFIED.  THE DISTRICT COURT HELD THAT, BY THE TERMS OF THE
"ASSIGNMENT" AND ON ITS DATE OF JULY 21, 1951, THE SURETY BECAME A
MORTGAGEE OF THE FUND AND THAT ITS RIGHT THERETO WAS SUPERIOR, UNDER
SEC. 3672(A), TO THE SUBSEQUENTLY FILED FEDERAL TAX LIENS.  140 F.
SUPP. 60.  THE COURT OF APPEALS, ADOPTING THAT OPINION, AFFIRMED.  239
F.2D 384. 

THIS COURT NOW REVERSES SUMMARILY, CITING UNITED STATES V. CITY OF
NEW BRITAIN, 347 U.S. 81, AND UNITED STATES V. SECURITY TRUST & SAVINGS
BANK, 340 U.S. 47.  WE BELIEVE THOSE CASES ARE NOT IN POINT NOR IN ANY
WAY CONTROLLING.  NEITHER OF THEM EVEN INVOLVE EITHER THE QUESTION HERE
PRESENTED OR THE STATUTE HERE CONCEDED BY THE PARTIES TO BE
CONTROLLING.  RATHER, THEY INVOLVED ENTIRELY DIFFERENT FACTS, PRESENTED
VERY DIFFERENT QUESTIONS, AND WERE CONTROLLED BY AND DECIDED UPON OTHER
STATUTES.  THEY WERE CONTROLLED BY AND DECIDED UPON SECS. 3670 AND 3671
OF THE INTERNAL REVENUE CODE OF 1939, (FN1) WHICH, IN PERTINENT PART,
PROVIDED:  "IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO
PAY THE SAME AFTER DEMAND, THE AMOUNT  ...  SHALL BE A LIEN IN FAVOR OF
THE UNITED STATES UPON ALL PROPERTY AND RIGHTS TO PROPERTY  ...
BELONGING TO SUCH PERSON" (SEC. 3670) FROM THE TIME "  ...  THE
ASSESSMENT LIST WAS RECEIVED BY THE COLLECTOR  ...  ."  (SEC. 3671.) 
WHEREAS THE STATUTE GOVERNING THIS CASE, AS THE PARTIES CONCEDE, IS
SEC. 3672(A) OF THE INTERNAL REVENUE CODE OF 1939, AS AMENDED, (FN2)
WHICH, IN PERTINENT PART, PROVIDED:  "SUCH LIEN SHALL NOT BE VALID AS
AGAINST ANY MORTGAGEE, PLEDGEE, PURCHASER, OR JUDGMENT CREDITOR UNTIL
NOTICE THEREOF HAS BEEN FILED BY THE COLLECTOR - (1)  ... IN THE OFFICE
IN WHICH THE FILING OF SUCH NOTICE IS AUTHORIZED BY THE LAW OF THE
STATE  ...  IN WHICH THE PROPERTY SUBJECT TO THE LIEN IS SITUATED  ...
." 

THE CONTROVERSY IN NEW BRITAIN WAS OVER THAT PORTION OF THE PROCEEDS
OF A REAL ESTATE MORTGAGE FORECLOSURE SALE WHICH EXCEEDED THE AMOUNT OF
THE MORTGAGE.  THE CITY OF NEW BRITAIN, IN VIRTUE OF ITS UNPAID ANNUAL
AD VALOREM TAX LIENS WHICH ATTACHED TO THE REAL ESTATE ON OCTOBER 1 IN
EACH OF THE YEARS 1947 THROUGH 1951, AND ITS WATER-RENT LIENS WHICH HAD
ACCRUED FROM DECEMBER 1, 1947, TO JUNE 1, 1951, CLAIMED PRIORITY OF
RIGHT TO THE FUND OVER GENERAL FEDERAL TAX LIENS AGAINST THE MORTGAGOR
WHICH HAD BEEN EFFECTED UNDER SECS. 3670 AND 3671 BY DEPOSIT OF
ASSESSMENT LISTS IN THE COLLECTOR'S OFFICE ON VARIOUS DATES BETWEEN
APRIL 26, 1948, AND SEPTEMBER 21, 1950.  THUS, SOME OF THE CITY'S LIENS
HAD ATTACHED TO THE REAL ESTATE PRIOR TO RECEIPT BY THE COLLECTOR OF
THE ASSESSMENT LISTS AND SOME HAD NOT. 

THIS COURT WAS NOT THERE DEALING WITH ANY MORTGAGE, PLEDGE OR OTHER
CONTRACTUAL LIEN, BUT WAS ONLY DEALING, AS IT SAID, WITH "STATUTORY
LIENS" (ID., AT 84); AND IN DECIDING THE ISSUE OF THEIR PRIORITY IT
OBSERVED THAT, ALTHOUGH SECS. 3670 AND 3671 CREATED A LIEN IN FAVOR OF
THE UNITED STATES UPON ALL PROPERTY OF THE TAXPAYER AS OF THE TIME THE
ASSESSMENT LIST WAS RECEIVED BY THE COLLECTOR, "CONGRESS HAD FAILED TO
EXPRESSLY PROVIDE FOR FEDERAL PRIORITY  ...  " (ID., AT 85) UNDER THOSE
LIENS IS TO BE DETERMINED BY THE PRINCIPLE OF LAW THAT 'THE FIRST IN
TIME IS THE FIRST IN RIGHT.'"  IBID.  THE COURT THEN VACATED THE
JUDGMENT OF THE STATE COURT AND REMANDED THE CASE FOR DETERMINATION OF
THE ORDER OF PRIORITY OF THE VARIOUS LIENS ASSERTED, IN ACCORDANCE WITH
THE OPINION. 

WE THINK IT IS NOT ONLY APPARENT THAT SEC. 3672(A) HAD NO APPLICATION
TO THAT CASE BUT ALSO THAT THE COURT EXPRESSLY SO DECLARED.  IT NOTED
THAT THE CITY OF NEW BRITAIN CONTENDED THAT, BECAUSE APPLICABLE STATE
STATUTES PROVIDED THAT REAL ESTATE TAX AND WATER-RENT LIENS SHOULD TAKE
PRECEDENCE OVER ALL OTHER LIENS AND ENCUMBRANCES AND SEC. 3672(A)
SUBORDINATED FEDERAL TAX LIENS TO ANTECEDENT MORTGAGES, THE COURT
SHOULD HOLD THAT THE CITY'S TAX AND WATER-RENT LIENS - HAVING PRIORITY
OVER MORTGAGES - WERE PRIOR IN RANK TO THE FEDERAL TAX LIENS; BUT THE
COURT DISAGREED, SAYING:  "THERE IS NOTHING IN THE LANGUAGE OF SEC.
3672(A) TO SHOW THAT CONGRESS INTENDED ANTECEDENT FEDERAL TAX LIENS TO
RANK BEHIND ANY BUT THE SPECIFIC CATEGORIES OF INTERESTS SET OUT
THEREIN  ...  ."  ID., AT 88.  AS WE HAVE OBSERVED, SUPRA, "THE
SPECIFIC CATEGORIES OF INTERESTS SET OUT" IN SEC. 3672(A) WERE AND ARE
THOSE OF "ANY MORTGAGEE, PLEDGEE, PURCHASER OR JUDGMENT CREDITOR." 

IN THE SECURITY TRUST CASE A CREDITOR INSTITUTED A SUIT IN CALIFORNIA
AGAINST ONE STYLIANO ON A NOTE AND, ON OCTOBER 17, 1946, PURSUANT TO
PROVISIONS OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, PROCURED AN
ATTACHMENT OF A PARCEL OF REAL ESTATE OWNED BY STYLIANO.  WHILE THE
ATTACHMENT SUIT WAS PENDING THE GOVERNMENT, ON DECEMBER 3, 5 AND 10,
1946, FILED NOTICES OF FEDERAL TAX LIENS AGAINST STYLIANO IN THE PROPER
STATE OFFICE.  THEREAFTER, ON APRIL 24, 1947, JUDGMENT WAS RENDERED
AGAINST STYLIANO IN THE ATTACHMENT SUIT, THUS PERFECTING THE ATTACHMENT
LIEN ON THE REAL ESTATE.  SUBSEQUENTLY STYLIANO SOLD THE REAL ESTATE,
SUBJECT TO THESE LIENS, AND THE PURCHASER FILED A SUIT TO QUIET HIS
TITLE, IMPLEADED THE ATTACHMENT LIENOR AND THE GOVERNMENT, AND PAID THE
PURCHASE PRICE INTO THE REGISTRY OF THE COURT TO ABIDE THE JUDGMENT. 
THE CALIFORNIA TRIAL COURT ORDERED THE FUND TO BE APPLIED, FIRST, IN
PAYMENT OF THE ATTACHMENT LIEN, AND, SECOND, IN PAYMENT OF THE FEDERAL
TAX LIENS.  THE CALIFORNIA DISTRICT COURT OF APPEAL AFFIRMED.  ON
CERTIORARI THIS COURT REVERSED, POINTING OUT THAT, UNDER THE LAW OF
CALIFORNIA AS DECLARED IN PUISSEGUR V. YARBROUGH, 29 CAL. 2D 409, 412,
175 P.2D 830, 831-832, AN ATTACHING CREDITOR OBTAINS "ONLY A POTENTIAL
RIGHT OR A CONTINGENT LIEN" UNTIL A JUDGMENT PERFECTING THE LIEN IS
RENDERED, AND THAT MEANWHILE THE LIEN "IS CONTINGENT OR INCHOATE -
MERELY A LIS PENDENS NOTICE THAT A RIGHT TO PERFECT A LIEN EXISTS." 
ID., AT 50.  NATURALLY, IN THOSE CIRCUMSTANCES, THE TAX LIENS WHICH
BECAME PERFECTED IN DECEMBER 1946 WERE SUPERIOR TO THE ATTACHMENT LIEN
WHICH DID NOT BECOME PERFECTED UNTIL MAY 1947.  THERE, AS IN NEW
BRITAIN, THIS COURT WAS NOT DEALING WITH ANY MORTGAGE, PLEDGE OR OTHER
CONTRACTUAL LIEN, OR WITH ANY QUESTION OF PRIORITY OF AN ANTECEDENT
MORTGAGE OVER SUBSEQUENTLY FILED TAX LIENS. 

IT THUS SEEMS QUITE CLEAR TO US THAT THE NEW BRITAIN AND SECURITY
TRUST CASES DID NOT INVOLVE THE QUESTION HERE PRESENTED NOR DEAL WITH
THE STATUTE HERE CONCEDED TO BE CONTROLLING AND, THEREFORE, THEY DO NOT
IN ANY WAY SUPPORT THE COURT'S DECISION HERE. 

WE ALSO THINK THAT, UNDER THE LAW AND THE FACTS IN THIS RECORD, THE
"ASSIGNMENT" WAS IN LEGAL EFFECT A "MORTGAGE," AND INASMUCH AS IT
ANTEDATED THE FILING OF THE FEDERAL TAX LIENS IT WAS SUPERIOR TO THEM
UNDER THE EXPRESSED TERMS OF SEC. 3672(A).  THAT SECTION DOES NOT
DEFINE THE TERM "MORTGAGEE" AND, HENCE, WE MUST ASSUME THAT IT WAS
THERE USED IN ITS ORDINARY AND COMMON-LAW SENSE.  UNITED STATES V.
GILBERT ASSOCIATES, INC., 345 U.S. 361, 364; UNITED STATES V. SECURITY
TRUST & SAVINGS BANK, SUPRA, AT 52 (CONCURRING OPINION).  SUBSTANCE,
NOT FORM OR LABELS, CONTROLS THE NATURE AND EFFECT OF LEGAL
INSTRUMENTS.  "STATE LAW CREATES LEGAL INTERESTS AND RIGHTS."  MORGAN
V. COMMISSIONER, 309 U.S. 78, 80.  THE LAW OF TEXAS, WHERE THE
QUESTIONED ASSIGNMENT WAS MADE AND WAS TO BE PERFORMED, MAKES SUCH AN
"ASSIGNMENT" A VALID MORTGAGE.  SOUTHERN SURETY CO. V. BERING MFG. CO.,
295 S.W. 337, 341; WILLIAMS V. SILLIMAN, 74 TEX. 626, 12 S.W. 534. 
ALTHOUGH THE RELATION OF A STATE-CREATED RIGHT TO FEDERAL LAWS FOR THE
COLLECTION OF FEDERAL CREDITS IS A FEDERAL QUESTION, THE STATE'S
CLASSIFICATION OF STATE-CREATED RIGHTS MUST BE GIVEN WEIGHT.  UNITED
STATES V. SECURITY TRUST & SAVINGS BANK, SUPRA, AT 49-50.  HERE, THE
STATE'S DETERMINATION THAT SUCH ASSIGNMENTS ARE MORTGAGES IN LEGAL
EFFECT, AND ITS CLASSIFICATION OF THEM ACCORDINGLY, IS NOT MET BY
ANYTHING OF COUNTERVAILING WEIGHT.  THE PERIOD OF THE ASSIGNMENT WAS
COEXTENSIVE WITH THE BOND.  THE BOND REMAINED EFFECTIVE THROUGHOUT THE
PERIOD HERE INVOLVED AND, HENCE, SO DID THE ASSIGNMENT.  THE FACT THAT
THE ASSIGNMENT WAS OF PROPERTY TO BE AFTERWARDS ACQUIRED DID NOT AFFECT
ITS VALIDITY AS A "MORTGAGE," CONARD V. ATLANTIC INS. CO., 1 PET. 386,
448, NOR DID UNCERTAINTY IN THE AMOUNT (NOT EXCEEDING THE FIXED
MAXIMUM) OF THE GENERALLY IDENTIFIED OBLIGATION, SO SECURED, DO SO.
IBID. NEITHER DOES THE FACT THAT THE INSTRUMENT WAS NOT RECORDED UNDER
THE STATE'S FRAUDULENT CONVEYANCE STATUTES - THUS TO IMPART
CONSTRUCTIVE NOTICE TO SUBSEQUENT PURCHASERS, MORTGAGEES AND THE LIKE -
MAKE ANY DIFFERENCE HERE, FOR THE INSTRUMENT WAS VALID BETWEEN THE
PARTIES TO IT, AND CONGRESS, BY SEC. 3672(A), EXPRESSLY SUBORDINATED
FEDERAL TAX LIENS TO ANTECEDENT MORTGAGES.  THE QUESTIONED ASSIGNMENT
CONVEYED TO THE SURETY ALL SUMS THEN DUE AND THEREAFTER TO BECOME DUE
UNDER, AND FOR PERFORMANCE OF, THE THEN EXISTING SUBCONTRACT -
PERFORMANCE OF WHICH WAS GUARANTEED BY THE SURETY'S BOND - AS SECURITY
FOR THE PAYMENT OF SUFFICIENTLY IDENTIFIED BUT CONTINGENT AND
UNLIQUIDATED OBLIGATIONS WHICH THE SUBCONTRACTOR MIGHT INCUR TO THE
SURETY DURING THE COEXTENSIVE PERIOD OF THE BOND AND THE ASSIGNMENT. 
IN THESE CIRCUMSTANCES, I THINK IT IS CLEAR THAT THE ASSIGNMENT WAS IN
LEGAL EFFECT A MORTGAGE, COMPLETELY PERFECTED ON ITS DATE, IN ALL
RESPECTS CHOATE, AND VALID BETWEEN THE PARTIES; AND INASMUCH AS IT
ANTEDATED THE FILING OF THE FEDERAL TAX LIENS IT WAS EXPRESSLY MADE
SUPERIOR TO THOSE LIENS BY THE TERMS OF SEC. 3672(A).    FOR THESE
REASONS, I DISSENT AND WOULD AFFIRM THE DECISION AND JUDGMENT OF THE
COURT OF APPEALS. 

FN1  53 STAT. 448 AND 449, 26 U.S.C. (1952 ED.)  SECS.  3670 AND
3671. 

FN2  53 STAT. 449, AS AMENDED BY SEC. 401 OF THE REVENUE ACT OF 1939,
C. 247, 53 STAT. 882, AND SEC. 505 OF THE REVENUE ACT OF 1942, C. 619,
56 STAT. 957, 26 U.S.C. SEC. 3672(A). 
..END :










UNITED STATES V. MASSEI 355 U.S. 595 


NO. 98.  ARGUED JANUARY 9, 1958 - DECIDED MARCH 3, 1958 - 241 F.2D 895,
AFFIRMED ON ANOTHER GROUND. 


IN A TAX-EVASION PROSECUTION BASED ON THE NET-WORTH METHOD OF PROOF
SUSTAINED IN HOLLAND V. UNITED STATES, 348 U.S. 121, PROOF OF A LIKELY
SOURCE OF THE DEFENDANT'S NET-WORTH INCREASES IS NOT ESSENTIAL IF ALL
POSSIBLE SOURCES OF NONTAXABLE INCOME ARE NEGATIVED BY THE EVIDENCE. 

UNITED STATES V. MASSEI. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

PER CURIAM. 

THE COURT OF APPEALS HAS BASED ITS REMAND IN PART ON THE ABSENCE OF
"PROOF OF LIKELY SOURCE," WHICH IT REGARDS AS AN "INDISPENSABLE"
ELEMENT OF THE NET WORTH METHOD, CITING HOLLAND V. UNITED STATES, 348
U.S. 121, IN SUPPORT OF ITS CONCLUSION.  IN HOLLAND WE HELD THAT PROOF
OF A LIKELY SOURCE WAS "SUFFICIENT" TO CONVICT IN A NET WORTH CASE
WHERE THE GOVERNMENT DID NOT NEGATIVE ALL THE POSSIBLE NONTAXABLE
SOURCES OF THE ALLEGED NET WORTH INCREASE.  THIS WAS NOT INTENDED TO
IMPLY THAT PROOF OF A LIKELY SOURCE WAS NECESSARY IN EVERY CASE.  ON
THE CONTRARY, SHOULD ALL POSSIBLE SOURCES OF NONTAXABLE INCOME BE
NEGATIVED, THERE WOULD BE NO NECESSITY FOR PROOF OF A LIKELY SOURCE. 
THE ABOVE EXPLANATION MUST BE TAKEN INTO CONSIDERATION IN APPLYING THE
HOLLAND DOCTRINE TO THIS CASE.  A NEW TRIAL BEING PERMISSIBLE UNDER THE
TERMS OF THE ORDER OF THE COURT OF APPEALS, WE AFFIRM ITS JUDGMENT. 

MR. JUSTICE DOUGLAS WOULD AFFIRM THE JUDGMENT BELOW ON THE OPINION OF
THE COURT OF APPEALS, 241 F.2D 895, 900-901. 
..END :


















WILSON V. LOEW'S INC. 355 U.S. 597 


NO. 33.  ARGUED JANUARY 8, 1958 - DECIDED MARCH 3, 1958 - REPORTED
BELOW:  142 CAL. APP. 2D 183, 298 P.2D 152. 


A NUMBER OF FORMER EMPLOYEES OF THE MOTION-PICTURE INDUSTRY BROUGHT
SUIT IN A CALIFORNIA STATE COURT FOR DAMAGES AND INJUNCTIVE RELIEF
AGAINST A NUMBER OF MOTION-PICTURE PRODUCERS AND DISTRIBUTORS, ALLEGING
THAT THE LATTER DIRECTLY OR INDIRECTLY CONTROLLED ALL MOTION-PICTURE
PRODUCTION AND DISTRIBUTION IN THE UNITED STATES AND ALL EMPLOYMENT
OPPORTUNITIES THEREIN AND HAD AGREED TO DENY EMPLOYMENT TO ALL
EMPLOYEES AND PERSONS SEEKING EMPLOYMENT WHO REFUSED, ON GROUNDS OF THE
FIFTH AMENDMENT, TO ANSWER QUESTIONS CONCERNING THEIR POLITICAL
ASSOCIATIONS AND BELIEFS PUT TO THEM BY THE UN-AMERICAN ACTIVITIES
COMMITTEE OF THE HOUSE OF REPRESENTATIVES.  THE ACTION OF THE TRIAL
COURT IN SUSTAINING A DEMURRER TO THE COMPLAINT WITHOUT LEAVE TO AMEND
WAS AFFIRMED ON APPEAL, ON THE GROUND THAT THE PLAINTIFFS HAD FAILED TO
ALLEGE PARTICULAR JOB OPPORTUNITIES.  THE PLAINTIFFS PETITIONED THIS
COURT FOR CERTIORARI, CLAIMING THAT THEY HAD BEEN DENIED DUE PROCESS
AND EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH
AMENDMENT, AND THIS COURT GRANTED CERTIORARI.  HELD:  THE WRIT IS
DISMISSED AS IMPROVIDENTLY GRANTED BECAUSE THE JUDGMENT RESTS ON AN
ADEQUATE STATE GROUND. 

WILSON ET AL. V. LOEW'S INCORPORATED ET AL. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PER CURIAM. 

THE WRIT IS DISMISSED AS IMPROVIDENTLY GRANTED BECAUSE THE JUDGMENT
RESTS ON AN ADEQUATE STATE GROUND. 

MR. JUSTICE DOUGLAS, DISSENTING. 

BY DEMURRER TO PETITIONERS' COMPLAINT, THE RESPONDENTS IN THIS CASE
ADMITTED THAT THEY AGREED WITH EACH OTHER TO EXCLUDE FROM EMPLOYMENT
ALL PERSONS WHO REFUSED, ON THE GROUNDS OF THE FIFTH AMENDMENT, TO
ANSWER QUESTIONS CONCERNING THEIR POLITICAL ASSOCIATIONS AND BELIEFS
PUT BY THE UN-AMERICAN ACTIVITIES COMMITTEE OF THE HOUSE OF
REPRESENTATIVES.  THE COMPLAINT ALLEGED, AND THE DEMURRER THEREBY
CONCEDED, THAT PETITIONERS HAD CONSIDERABLE EXPERIENCE IN THE MOTION
PICTURE INDUSTRY; AND THAT RESPONDENTS DIRECTLY OR INDIRECTLY
CONTROLLED ALL MOTION PICTURE PRODUCTION AND DISTRIBUTION IN THE UNITED
STATES AND ALL EMPLOYMENT OPPORTUNITIES THEREIN.  THE CALIFORNIA COURT
SUSTAINED THE DEMURRER ON THE GROUND THAT PETITIONERS HAD NOT "ALLEGED
THAT BUT FOR DEFENDANTS' ALLEGED INTERFERENCE ANY ONE OF PLAINTIFFS
WOULD, OR EVEN PROBABLY OR POSSIBLE WOULD, HAVE BEEN EMPLOYED IN THE
INDUSTRY."  142 CAL. APP. 2D 183, 195, 298 P.2D 152, 160. 

THIS RULING ON CALIFORNIA LAW SHOULD RESULT IN A REVERSAL OF THIS
JUDGMENT. 

THIS IS A CASE OF ALLEGED INTERFERENCE WITH THE PURSUIT OF AN
OCCUPATION, NOT AN ALLEGED INTERFERENCE WITH A PARTICULAR CONTRACT OR
BUSINESS RELATIONSHIP.  THE CALIFORNIA CASES ON INTERFERENCE WITH THE
"RIGHT TO WORK" ARE BROAD IN SCOPE.  IN JAMES V. MARINSHIP CORP., 25
CAL. 2D 721, 155 P.2D 329, THE CALIFORNIA SUPREME COURT HELD THAT A
UNION COULD NOT EXCLUDE NEGROES FROM MEMBERSHIP IN THE UNION WHEN AT
THE SAME TIME THERE WAS A CLOSED SHOP IN THE INDUSTRY.  THE MARINSHIP
CASE WAS LATER FOLLOWED IN WILLIAMS V. INTERNATIONAL BROTHERHOOD, 27
CAL. 2D 586, 165 P.2D 903, WHERE SOME OF THE PLAINTIFFS WERE FORMER
EMPLOYEES.  NO SHOWING OF THE POSSIBILITY OF EMPLOYMENT WAS MADE.  IN
WILLIAMS THE COURT EMPHASIZED THAT A "CLOSED SHOP AGREEMENT WITH A
SINGLE EMPLOYER IS IN ITSELF A FORM OF MONOPOLY"; AND IT CONDEMNED
ATTEMPTS BY A UNION "TO CONTROL BY ARBITRARY SELECTION THE FUNDAMENTAL
RIGHT TO WORK."  27 CAL. 2D, AT 591, 165 P.2D, AT 906.  HERE ON THE
PLEADINGS THE RESPONDENTS COMPRISE A NATIONWIDE MONOPOLY OVER THE
INDUSTRY AND ARBITRARILY PLACE PETITIONERS ON A "BLACK LIST." 

DOTSON V. INTERNATIONAL ALLIANCE, 34 CAL. 2D 362, 210 P.2D 5, HELD
THAT OUT-OF-STATE WORKERS, QUALIFIED FOR UNION MEMBERSHIP, COULD
RECOVER DAMAGES "FOR WRONGFUL INTERFERENCE WITH THEIR RIGHT TO WORK"
AGAINST THE UNION WHICH DENIED MEMBERSHIP.  34 CAL. 2D, AT 374, 210
P.2D, AT 12.  NO SHOWING OF A LIKELIHOOD OF EMPLOYMENT WAS MADE IN THAT
MONOPOLY SITUATION. 

SURELY THEN, THE FAILURE OF THESE PETITIONERS TO ALLEGE A PARTICULAR
JOB OPPORTUNITY DOES NOT MEAN THEY DID NOT STATE A CAUSE OF ACTION
WITHIN THE MEANING OF THOSE CALIFORNIA CASES.  THEIR PLEADINGS SEEM TO
BRING THEM SQUARELY WITHIN THOSE DECISIONS.  THE FACT THAT DAMAGES MAY
BE UNCERTAIN IS NO BARRIER TO ENFORCEMENT OF THE RIGHT TO WORK.  SEE
HARRIS V. NATIONAL UNION OF COOKS AND STEWARDS, 98 CAL. APP. 2D 733,
738, 221 P.2D 136, 139. 

I, THEREFORE, CONCLUDE THAT THE LOWER COURT, IN NOT MENTIONING THESE
CASES NOR DIFFERENTIATING THEM, AND DRAWING ALMOST ENTIRELY ON
DECISIONS FROM OTHER JURISDICTIONS, HAS FASHIONED A DIFFERENT RULE FOR
THIS CASE.  I CAN SEE NO DIFFERENCE WHERE THE "RIGHT TO WORK" IS DENIED
BECAUSE OF RACE AND WHERE, AS HERE, BECAUSE THE CITIZEN HAS EXERCISED
FIFTH AMENDMENT RIGHTS.  TO DRAW SUCH A LINE IS TO DISCRIMINATE AGAINST
THE ASSERTION OF A PARTICULAR FEDERAL CONSTITUTIONAL RIGHT.  THAT A
STATE MAY NOT DO CONSISTENTLY WITH THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  WILLIAMS V. GEORGIA, 349 U.S. 375. 
..END :






















BLACK V. AMEN 355 U.S. 600 


NO. 13.  ARGUED NOVEMBER 12-13, 1957 - DECIDED MARCH 3, 1958 - REPORTED
BELOW:  234 F.2D 12. 


ON MOTION OF PETITIONERS, CONCURRED IN BY ATTORNEYS FOR RESPONDENTS,
THE CASE IS REMANDED TO THE COURT OF APPEALS WITH DIRECTIONS TO REMAND
IT TO THE DISTRICT COURT TO ENABLE THE PARTIES TO FILE THEIR JOINT
MOTION FOR ENTRY OF JUDGMENT DISMISSING THE ACTION, AS PROVIDED IN A
SETTLEMENT AGREEMENT. 

BLACK ET AL. V. AMEN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PER CURIAM. 

PETITIONERS' AMENDED MOTION, CONCURRED IN BY THE ATTORNEYS FOR
RESPONDENTS, IS GRANTED.  THE CASE IS REMANDED TO THE COURT OF APPEALS
WITH DIRECTIONS TO REMAND THE CAUSE TO THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS TO ENABLE THE PARTIES TO FILE THEIR JOINT
MOTION FOR THE ENTRY OF JUDGMENT DISMISSING THE ACTION, AS PROVIDED IN
PARAGRAPH 3 OF THE SETTLEMENT AGREEMENT DATED FEBRUARY 27, 1958, A COPY
OF WHICH IS ANNEXED TO THE AMENDED MOTION. 

MR. JUSTICE FRANKFURTER DESIRES TO HAVE IT ADDED THAT HE ASSUMES THAT
THE LEGAL EFFECT OF THE COURT'S ORDER, IN WHICH HE JOINS, UPON THE
OPINION AND JUDGMENT OF THE COURT OF APPEALS IN THIS CASE IS THE
CONVENTIONAL ONE WHEN A CASE HAS BECOME MOOT HERE PENDING OUR DECISION
ON THE MERITS.  UNITED STATES V. MUNSINGWEAR, 340 U.S. 36, 39. 
..END :




















SPEVACK V. STRAUSS 355 U.S. 601 


NO. 641.  DECIDED MARCH 3, 1958 - REPORTED BELOW:  101 U.S. APP. D.C.
339, 248 F.2D 752. 


CERTIORARI GRANTED; JUDGMENT AND ORDERS OF COURT OF APPEALS VACATED;
AND CASE REMANDED TO THAT COURT WITH INSTRUCTIONS (1) TO ALLOW
PETITIONER'S PROPOSED AMENDMENTS TO COMPLAINT, AND (2) TO DETERMINE, IN
LIGHT OF AMENDED COMPLAINT, THE ISSUES RAISED BY PETITIONER'S APPEAL. 

SPEVACK V. STRAUSS ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS, AND THE ORDERS OF THE COURT OF APPEALS DENYING
PETITIONER'S MOTION FOR LEAVE TO AMEND THE COMPLAINT AND PETITION FOR
REHEARING, ARE VACATED.  THE CASE IS REMANDED TO THE COURT OF APPEALS
WITH INSTRUCTIONS (1) TO ALLOW PETITIONER'S PROPOSED AMENDMENTS TO THE
COMPLAINT AND (2) TO DETERMINE, IN LIGHT OF THE AMENDED COMPLAINT, THE
ISSUES RAISED BY PETITIONER'S APPEAL. 
..END :





SEARS V. UNITED STATES 355 U.S. 602 


NO. 626.  DECIDED MARCH 3, 1958 - REPORTED BELOW:  248 F.2D 377. 


CERTIORARI GRANTED; ON CONSIDERATION OF RECORD AND CONFESSION OF ERROR
BY THE SOLICITOR GENERAL, JUDGMENT OF THE COURT OF APPEALS REVERSED AND
CASE REMANDED TO THE DISTRICT COURT TO CLARIFY THE FINDING OR GRANT
OTHER APPROPRIATE RELIEF. 

SEARS V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  UPON CONSIDERATION
OF THE ENTIRE RECORD AND CONFESSION OF ERROR BY THE SOLICITOR GENERAL
THE JUDGMENT OF THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT IS
REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS
TO CLARIFY THE FINDING OR GRANT SUCH OTHER RELIEF AS MAY BE
APPROPRIATE. 
..END :







TEXAS, PAN AMERICAN PRODUCTION CO. V. TEXAS CITY, TEXAS 355 U.S. 603 


NO. 574.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  157 TEX. - , 303 S.W.2D
780. 


TEXAS EX REL. PAN AMERICAN PRODUCTION CO. ET AL. V. CITY OF TEXAS CITY,
TEXAS, ET AL. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















OOSTERHOUDT V. MORGAN, FLORIDA STATE BOARD OF ACCOUNTANCY 355 U.S. 603 


NO. 623.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  96 SO. 2D 139. 


OOSTERHOUDT V. MORGAN ET AL., CONSTITUTING THE FLORIDA STATE BOARD OF
ACCOUNTANCY. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















ROEL V. NEW YORK COUNTY LAWYERS ASSOCIATION 355 U.S. 604 


NO. 627.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  3 N.Y.2D 224, 144
N.E.2D 24. 


ROEL V. NEW YORK COUNTY LAWYERS ASSOCIATION. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















BARNES V. NATIONAL BROADCASTING CO., INC. 355 U.S. 604 


NO. 202, MISC.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED. 


BARNES V. NATIONAL BROADCASTING CO., INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















MILLS MILL V. HAWKINS, UNA WATER DISTRICT COMMISSION 355 U.S. 605 


NO. 670.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  - S.C. - .


MILLS MILL ET AL. V. HAWKINS ET AL., CONSTITUTING THE UNA WATER DISTRICT
COMMISSION. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















KLIG V. ROGERS 355 U.S. 605 


NO. 143.  DECIDED MARCH 3, 1958 - REPORTED BELOW:  100 U.S. APP. D.C.
294, 244 F.2D 742. 


UPON SUGGESTION OF MOOTNESS, JUDGMENT OF COURT OF APPEALS VACATED AND
CASE REMANDED TO DISTRICT COURT WITH DIRECTIONS TO DISMISS. 

KLIG V. ROGERS, ATTORNEY GENERAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

UPON SUGGESTION OF MOOTNESS BY ALL OF THE PARTIES, THE JUDGMENT OF
THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO DISMISS THE CAUSE AS MOOT. 
..END :











THILLENS, INC. V. MOREY 355 U.S. 606 


NO. 696.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  11 ILL. 2D 579, 144
N.E.2D 735. 


THILLENS, INC., V. MOREY, AUDITOR OF PUBLIC ACCOUNTS OF ILLINOIS, ET
AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















ROWLAND V. TEXAS 355 U.S. 606 


NO. 709.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED AND CERTIORARI DENIED
- REPORTED BELOW:  165 TEX. CR. R. - , 311 S.W.2D 831. 


ROWLAND V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BENDIX AVIATION CORP. V. INDIANA DEPARTMENT OF STATE REVENUE, INDIANA
REVENUE BOARD, INDIANA GROSS INCOME TAX DIVISION 355 U.S. 607 


NO. 701.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  - IND. - , 143 N.E.2D
91. 


BENDIX AVIATION CORP. V. INDIANA DEPARTMENT OF STATE REVENUE, INDIANA
REVENUE BOARD, INDIANA GROSS INCOME TAX DIVISION. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :














CARLSON V. WASHINGTON 355 U.S. 607 


NO. 286, MISC.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  50 WASH. 2D 220, 310 P.2D 867. 


CARLSON V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BARNES V. COLUMBIA BROADCASTING SYSTEM, INC. 355 U.S. 608 


NO. 226, MISC.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED. 


BARNES V. COLUMBIA BROADCASTING SYSTEM, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :


















GOSTOVICH V. VALORE 355 U.S. 608 


NO. 247, MISC.  DECIDED MARCH 3, 1958 - APPEAL DISMISSED - REPORTED
BELOW:  153 F. SUPP. 826. 


GOSTOVICH V. VALORE, ADJUDICATION OFFICER, VETERANS ADMINISTRATION. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE APPEAL IS DISMISSED. 
..END :

















KERNAN V. AMERICAN DREDGING CO. 355 U.S. 426 


NO. 34.  ARGUED NOVEMBER 21, 1957 - DECIDED FEBRUARY 3, 1958 - 35 F.2D
618, 619, REVERSED AND REMANDED. 


A SEAMAN LOST HIS LIFE ON A TUG WHICH CAUGHT FIRE WHEN AN OPEN-FLAME
KEROSENE LAMP ON THE DECK OF A SCOW IT WAS TOWING ON A RIVER AT NIGHT
IGNITED HIGHLY INFLAMMABLE VAPORS LYING ABOVE AN ACCUMULATION OF
PETROLEUM PRODUCTS SPREAD OVER THE SURFACE OF THE RIVER.  THE LAMP WAS
NOT MORE THAN THREE FEET ABOVE THE WATER, AND THE VAPOR WOULD NOT HAVE
BEEN IGNITED HAD THE LAMP BEEN CARRIED AT THE HEIGHT OF EIGHT FEET
REQUIRED BY COAST GUARD REGULATIONS.  THERE WAS NO COLLISION OR FAULT
OF NAVIGATION.  HELD: UNDER THE JONES ACT, WHICH INCORPORATES THE
PROVISIONS OF THE FEDERAL EMPLOYERS' LIABILITY ACT, THE SEAMAN'S
EMPLOYER WAS LIABLE, WITHOUT A SHOWING OF NEGLIGENCE, FOR HIS DEATH
RESULTING FROM A VIOLATION OF THE COAST GUARD REGULATIONS PERTAINING TO
NAVIGATION.  PP. 427-439. 

(A)  THE DECISIONS OF THIS COURT IN ACTIONS UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT BASED UPON VIOLATIONS OF THE SAFETY APPLIANCE
ACTS AND THE BOILER INSPECTION ACT ESTABLISH THAT A VIOLATION OF EITHER
ACT CREATES LIABILITY WITHOUT REGARD TO NEGLIGENCE, IF THE VIOLATION IN
FACT CONTRIBUTES TO THE DEATH OR INJURY, WITHOUT REGARD TO WHETHER THE
INJURY FLOWING FROM THE BREACH WAS THE INJURY THE STATUTE SOUGHT TO
PREVENT.  PP. 430-436. 

(B)  THE BASIS OF LIABILITY ESTABLISHED IN THOSE DECISIONS IS NOT
CONFINED TO CASES INVOLVING THE SAFETY APPLIANCE ACTS OR THE BOILER
INSPECTION ACT BUT EXTENDS ALSO TO DEATHS RESULTING FROM A VIOLATION OF
THE COAST GUARD REGULATIONS HERE INVOLVED.  PP. 436-439. 

(C)  UNDER SEC. 1 OF THE FEDERAL EMPLOYERS' LIABILITY ACT, WHEN A
STATUTORY VIOLATION RESULTS IN A DEFECT OR INSUFFICIENCY IN APPLIANCES
OR OTHER EQUIPMENT, LIABILITY ENSUES, WITHOUT REGARD TO WHETHER THE
INJURY FLOWING FROM THE VIOLATION WAS THE INJURY THE STATUTE SOUGHT TO
GUARD AGAINST.  PP. 437-439. 

(D)  THE JONES ACT EXPRESSLY PROVIDES FOR SEAMEN THE CAUSE OF ACTION
AND CONSEQUENTLY THE ENTIRE JUDICIALLY DEVELOPED DOCTRINE OF LIABILITY
- GRANTED TO RAILROAD WORKERS BY THE FEDERAL EMPLOYERS' LIABILITY ACT. 
P. 439. 

KERNAN, ADMINISTRATOR, V. AMERICAN DREDGING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN THIS LIMITATION PROCEEDING BROUGHT BY THE RESPONDENT UNDER SECS.
183-186 OF THE LIMITED LIABILITY ACT, R.S. SECS. 4281-4289, AS AMENDED,
46 U.S.C. SECS. 181-196, THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA DENED THE PETITIONER'S CLAIM FOR DAMAGES FILED ON BEHALF
OF THE WIDOW AND OTHER DEPENDENTS OF A SEAMAN WHO LOST HIS LIFE ON
RESPONDENT'S TUG IN A FIRE CAUSED BY THE VIOLATION OF A NAVIGATION
RULE.  141 F. SUPP. 582.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT
AFFIRMED.  235 F.2D 618, REHEARING DENIED, 235 F.2D 619.  WE GRANTED
CERTIORARI.  352 U.S. 965. 

THE SEAMAN LOST HIS LIFE ON THE TUG ARTHUR N. HERRON, WHICH, ON THE
NIGHT OF NOVEMBER 18, 1952, WHILE TOWING A SCOW ON THE SCHUYLKILL RIVER
IN PHILADELPHIA, CAUGHT FIRE WHEN AN OPEN-FLAME KEROSENE LAMP ON THE
DECK OF THE SCOW IGNITED HIGHLY INFLAMMABLE VAPORS LYING ABOVE AN
EXTENSIVE ACCUMULATION OF PETROLEUM PRODUCTS SPREAD OVER THE SURFACE OF
THE RIVER.  SEVERAL OIL REFINERIES AND FACILITIES FOR OIL STORAGE, AND
FOR LOADING AND UNLOADING PETROLEUM PRODUCTS, ARE LOCATED ALONG THE
BANKS OF THE SCHUYLKILL RIVER.  THE TRIAL COURT FOUND THAT THE LAMP WAS
NOT MORE THAN THREE FEET ABOVE THE WATER.  MAINTAINING THE LAMP AT A
HEIGHT OF LESS THAN EIGHT FEET VIOLATED A NAVIGATION RULE PROMULGATED
BY THE COMMANDANT OF THE UNITED STATES COAST GUARD.  (FN1)  THE TRIAL
COURT FOUND THAT THE VAPOR WOULD NOT HAVE BEEN IGNITED IF THE LAMP HAD
BEEN CARRIED AT THE REQUIRED HEIGHT. 

THE DISTRICT COURT HELD THAT THE VIOLATION OF THE RULE, "WHETHER  ...
(IT) BE CALLED NEGLIGENCE OR BE SAID TO MAKE THE FLOTILLA
UNSEAWORTHY," DID NOT IMPOSE LIABILITY BECAUSE "THE COAST GUARD
REGULATION HAD TO DO SOLELY WITH NAVIGATION AND WAS INTENDED FOR THE
PREVENTION OF COLLISIONS, AND FOR NO OTHER PURPOSE.  IN THE PRESENT
CASE THERE WAS NO COLLISION AND NO FAULT OF NAVIGATION.  TRUE, THE
ORIGIN OF THE FIRE CAN BE TRACED TO THE VIOLATION OF THE REGULATION,
BUT THE QUESTION IS NOT CAUSATION BUT WHETHER THE VIOLATION OF THE
REGULATION, OF ITSELF, IMPOSES LIABILITY."  141 F. SUPP., AT 585. 

THE PETITIONER URGES FIRST THAT THE STATUTORY VIOLATION MADE THE
FLOTILLA UNSEAWORTHY, CREATING LIABILITY WITHOUT REGARD TO FAULT.  BUT
THE REMEDY FOR UNSEAWORTHINESS DERIVES FROM THE GENERAL MARITIME LAW,
AND THAT LAW RECOGNIZES NO CAUSE OF ACTION FOR WRONGFUL DEATH WHETHER
OCCASIONED BY UNSEAWORTHINESS OR BY NEGLIGENCE.  THE HARRISBURG, 119
U.S. 199; (FN2) SEE WESTERN FUEL CO. V. GARCIA, 257 U.S. 233, 240. 
BEFORE THE JONES ACT, (FN3) FEDERAL COURTS OF ADMIRALTY RESORTED TO THE
VARIOUS STATE DEATH ACTS TO GIVE A REMEDY FOR WRONGFUL DEATH.  THE
HAMILTON, 207 U.S. 398; THE TRANSFER NO. 4, 61 F.364; SEE WESTERN FUEL
CO. V. GARCIA, SUPRA, AT 242; GREAT LAKES DREDGE & DOCK CO. V.
KIEREJEWSKI, 261 U.S. 479.  THE JONES ACT CREATED A FEDERAL RIGHT OF
ACTION FOR THE WRONGFUL DEATH OF A SEAMAN BASED ON THE STATUTORY ACTION
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  IN LINDGREN V. UNITED
STATES, 281 U.S. 38, THE COURT HELD THAT THE JONES ACT REMEDY FOR
WRONGFUL DEATH WAS EXCLUSIVE AND PRECLUDED ANY REMEDY FOR WRONGFUL
DEATH WITHIN TERRITORIAL WATERS, (FN4) BASED ON UNSEAWORTHINESS,
WHETHER DERIVED FROM FEDERAL OR STATE LAW.  THE PETITIONER ASSUMES THAT
UNDER TODAY'S GENERAL MARITIME LAW THE PERSONAL REPRESENTATIVE OF A
DECEASED SEAMAN MAY ELECT, AS THE SEAMAN HIMSELF MAY ELECT, BETWEEN AN
ACTION BASED ON THE FELA AND AN ACTION, RECOGNIZED IN THE OSCEOLA, 189
U.S. 158, 175, BASED UPON UNSEAWORTHINESS.  IN VIEW OF THE DISPOSITION
WE ARE MAKING OF THIS CASE, WE NEED NOT CONSIDER THE SOUNDNESS OF THIS
ASSUMPTION. 

THE PETITIONER ALSO URGES THAT, SINCE THE VIOLATION OF THE RULE
REQUIRING THE LIGHTS TO BE EIGHT FEET ABOVE THE WATER RESULTED IN A
DEFECT OR INSUFFICIENCY IN THE FLOTILLA'S LIGHTING EQUIPMENT WHICH IN
FACT CAUSED THE SEAMAN'S DEATH, LIABILITY WAS CREATED WITHOUT REGARD TO
NEGLIGENCE UNDER THE LINE OF DECISIONS OF THIS COURT IN ACTIONS UNDER
THE FELA BASED UPON VIOLATIONS OF EITHER THE SAFETY APPLIANCE ACTS
(FN5) OR THE BOILER INSPECTION ACT.  (FN6)  THAT LINE OF DECISIONS
INTERPRETED THE CLAUSE OF SEC. 1 OF THE FELA, 45 U.S.C. SEC. 51, WHICH
IMPOSES LIABILITY ON THE EMPLOYER "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." 
THE CASES HOLD THAT UNDER THIS CLAUSE, A DEFECT RESULTING FROM A
VIOLATION OF EITHER STATUTE WHICH CAUSES THE INJURY OR DEATH OF AN
EMPLOYEE CREATES LIABILITY WITHOUT REGARD TO NEGLIGENCE.  SAN ANTONIO &
A.P.R. CO. V. WAGNER, 241 U.S. 476, 484.  HERE THE DEFECT OR
INSUFFICIENCY IN THE FLOTILLA'S LIGHTING EQUIPMENT DUE TO A VIOLATION
OF THE STATUTE RESULTED IN THE DEATH OF THE SEAMAN.  THE QUESTION FOR
OUR DECISION IS WHETHER, IN THE ABSENCE OF ANY SHOWING OF NEGLIGENCE,
THE JONES ACT - WHICH IN TERMS INCORPORATES THE PROVISIONS OF THE FELA
PERMITS RECOVERY FOR THE DEATH OF A SEAMAN RESULTING FROM A VIOLATION
OF A STATUTORY DUTY.  WE HOLD THAT IT DOES. 

IN DENYING THE CLAIM THE LOWER COURTS RELIED UPON THEIR VIEWS OF
GENERAL TORT DOCTRINE.  IT IS TRUE THAT AT COMMON LAW THE LIABILITY OF
THE MASTER TO HIS SERVANT WAS FOUNDED WHOLLY ON TORT RULES OF GENERAL
APPLICABILITY AND THE MASTER WAS GRANTED THE EFFECTIVE DEFENSES OF
ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE.  THIS LIMITED LIABILITY
DERIVED FROM A PUBLIC POLICY, DESIGNED TO GIVE MAXIMUM FREEDOM TO
INFANT INDUSTRIAL ENTERPRISES, "TO INSULATE THE EMPLOYER AS MUCH AS
POSSIBLE FROM BEARING THE 'HUMAN OVERHEAD' WHICH IS AN INEVITABLE PART
OF THE COST - TO SOMEONE - OF THE DOING OF INDUSTRALIZED BUSINESS." 
TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54, 59.  BUT IT CAME TO
BE RECOGNIZED THAT, WHATEVER THE RIGHTS AND DUTIES AMONG PERSONS
GENERALLY, THE INDUSTRIAL EMPLOYER HAD A SPECIAL RESPONSIBILITY TOWARD
HIS WORKERS, WHO WERE DAILY EXPOSED TO THE RISKS OF THE BUSINESS AND
WHO WERE LARGELY HELPLESS TO PROVIDE ADEQUATELY FOR THEIR OWN SAFETY. 
THEREFORE, AS INDUSTRY AND COMMERCE BECAME SUFFICIENTLY STRONG TO BEAR
THE BURDEN, THE LAW, THE REFLECTION OF AN EVOLVING PUBLIC POLICY, COME
TO FAVOR COMPENSATION OF EMPLOYEES AND THEIR DEPENDENTS FOR THE LOSSES
OCCASIONED BY THE INEVITABLE DEATHS AND INJURIES OF INDUSTRIAL
EMPLOYMENT, THUS SHIFTING TO INDUSTRY THE "HUMAN OVERHEAD" OF DOING
BUSINESS.  FOR MOST INDUSTRIES THIS CHANGE HAS BEEN EMBODIED IN
WORKMEN'S COMPENSATION ACTS.  IN THE RAILROAD AND SHIPPING INDUSTRIES,
HOWEVER, THE FELA AND JONES ACT PROVIDE THE FRAMEWORK FOR DETERMINING
LIABILITY FOR INDUSTRIAL ACCIDENTS.  BUT INSTEAD OF A DETAILED STATUTE
CODIFYING COMMON-LAW PRINCIPLES, CONGRESS SAW FIT TO ENACT A STATUTE OF
THE MOST GENERAL TERMS, THUS LEAVING IN LARGE MEASURE TO THE COURTS THE
DUTY OF FASHIONING REMEDIES FOR INJURED EMPLOYEES IN A MANNER ANALOGOUS
TO THE DEVELOPMENT OF TORT REMEDIES AT COMMON LAW.  BUT IT IS CLEAR
THAT THE GENERAL CONGRESSIONAL INTENT WAS TO PROVIDE LIBERAL RECOVERY
FOR INJURED WORKERS, ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500,
508-510, AND IT IS ALSO CLEAR THAT CONGRESS INTENDED THE CREATION OF NO
STATIC REMEDY, BUT ONE WHICH WOULD BE DEVELOPED AND ENLARGED TO MEET
CHANGING CONDITIONS AND CHANGING CONCEPTS OF INDUSTRY'S DUTY TOWARD ITS
WORKERS. 

THE FELA AND THE JONES ACT IMPOSE UPON THE EMPLOYER THE DUTY OF
PAYING DAMAGES WHEN INJURY TO THE WORKER IS CAUSED, IN WHOLE OR IN
PART, BY THE EMPLOYER'S FAULT.  THIS FAULT MAY CONSIST OF A BREACH OF
THE DUTY OF CARE, ANALOGOUS BUT BY NO MEANS IDENTICAL TO THE GENERAL
COMMMON-LAW DUTY, OR OF A BREACH OF SOME STATUTORY DUTY.  THE TORT
DOCTRINE WHICH THE LOWER COURTS APPLIED IMPOSES LIABILITY FOR VIOLATION
OF A STATUTORY DUTY ONLY WHERE THE INJURY IS ONE WHICH THE STATUTE WAS
DESIGNED TO PREVENT.  (FN7)  HOWEVER, THIS COURT HAS REPEATEDLY REFUSED
TO APPLY SUCH A LIMITING DOCTRINE IN FELA CASES.  IN FELA CASES BASED
UPON VIOLATIONS OF THE SAFETY APPLIANCE ACTS OR THE BOILER INSPECTION
ACT, THE COURT HAS HELD THAT A VIOLATION OF EITHER STATUTE CREATES
LIABILITY UNDER FELA IF THE RESULTING DEFECT OR INSUFFICIENCY IN
EQUIPMENT CONTRIBUTES IN FACT TO THE DEATH OR INJURY IN SUIT, WITHOUT
REGARD TO WHETHER THE INJURY FLOWING FROM THE BREACH WAS THE INJURY THE
STATUTE SOUGHT TO PREVENT.  SINCE IT APPEARS IN THIS CASE THAT THE
DEFECT OR INSUFFICIENCY OF THE FLOTILLA'S LIGHTING EQUIPMENT RESULTING
FROM THE VIOLATION OF 33 U.S.C. SEC. 157 ACTUALLY CAUSED THE SEAMAN'S
DEATH, THIS PRINCIPLE GOVERNS AND COMPELS A RESULT IN FAVOR OF THE
PETITIONER'S CLAIM. 

IN LOUISVILLE & N.R. CO. V. LAYTON, 243 U.S. 617, A RAILROAD EMPLOYEE
ON ONE OF FIVE FREIGHT CARS LOADED WITH COAL WAS THROWN TO THE TRACK
AND INJURED WHEN AN ENGINE PUSHED A STOCK CAR INTO THE LAST OF THE
LOADED CARS AND DROVE THE FIVE CARS AGAINST A STANDING TRAIN.  NEITHER
THE STOCK CAR NOR THE CAR WHICH IT STRUCK WAS EQUIPPED WITH AUTOMATIC
COUPLERS, AS REQUIRED BY THE FEDERAL SAFETY APPLIANCE ACT.  HAD THE
CARS BEEN SO EQUIPPED THEY WOULD HAVE COUPLED WHEN THEY CAME TOGETHER
AND THE FIVE CARS WOULD NOT HAVE RUN AGAINST THE STANDING TRAIN.  THE
STATED PURPOSE OF THE AUTOMATIC COUPLER REQUIREMENT WAS TO AVOID "THE
NECESSITY OF MEN GOING BETWEEN THE ENDS OF CARS," AND THE RAILROAD
CONTENDED THAT THIS SHOWED THAT THE CONGRESS INTENDED THE REQUIREMENT
ONLY FOR THE BENEFIT OF EMPLOYEES INJURED WHEN BETWEEN CARS FOR THE
PURPOSE OF COUPLING OR UNCOUPLING THEM.  THE COURT REJECTED THE
ARGUMENT AND AFFIRMED A JUDGMENT FOR THE PLAINTIFF. 

IN MINNEAPOLIS & ST. L.R. CO. V. GOTSCHALL, 244 U.S. 66, A BRAKEMAN
WALKING ALONG THE TOPS OF THE CARS OF A MOVING TRAIN WAS THROWN OFF AND
KILLED WHEN THE TRAIN SEPARATED BECAUSE OF THE OPENING OF A COUPLER
WHICH RESULTED IN AN AUTOMATIC SETTING OF THE EMERGENCY BRAKES AND A
SUDDEN JERK OF THE TRAIN.  THIS COURT SUSTAINED A JUDGMENT AGAINST THE
RAILROAD ALTHOUGH THE INJURY WAS NOT ONE WHICH THE SAFETY APPLIANCE ACT
AIMS TO PREVENT. 

IN DAVIS V. WOLFE, 263 U.S. 239, THE CONDUCTOR OF A MOVING TRAIN
HOLDING ON TO THE GRAB IRON DIRECTLY OVER THE SILL-STEP ON WHICH HE
STOOD FELL BECAUSE THE GRAB IRON WAS LOOSE AND DEFECTIVE.  IT WAS
CONTENDED THAT THE GRAB IRON WAS REQUIRED TO AID EMPLOYEES ENGAGED IN
COUPLING OR UNCOUPLING CARS OR A SERVICE CONNECTED THEREWITH, NOT TO
AID IN THE TRANSPORTATION OF EMPLOYEES.  THE COURT REJECTED THIS
CONTENTION AND HELD THAT THE LAYTON AND GOTSCHALL CASES HAD SETTLED
THAT THE EMPLOYEE "  ...  CAN RECOVER IF THE FAILURE TO COMPLY WITH THE
REQUIREMENTS OF THE (SAFETY APPLIANCE) ACT IS A PROXIMATE CAUSE OF THE
ACCIDENT, RESULTING IN INJURY TO HIM WHILE IN THE DISCHARGE OF HIS
DUTY, ALTHOUGH NOT ENGAGED IN AN OPERATION IN WHICH THE SAFETY
APPLIANCES ARE SPECIFICALLY DESIGNED TO FURNISH HIM PROTECTION."  ID.,
AT 243. 

IN SWINSON V. CHICAGO, ST. P., M.&O.R. CO., 294 U.S. 529, A FREIGHT
BRAKEMAN WAS RELEASING A TIGHTLY SET HAND BRAKE AT THE END OF A TANK
CAR.  RELEASE OF THE HAND BRAKE REQUIRED THE APPLICATION OF
CONSIDERABLE FORCE TO THE BRAKE WHEEL.  THE BRAKEMAN PUT HIS LEFT FOOT
ON THE RUNNING BOARD AND HIS RIGHT FOOT ON THE GRAB IRON TO SET HIMSELF
BETTER TO PUT PRESSURE ON THE BRAKE WHEEL.  THE FOOT PRESSURE EXERTED
ON THE GRAB IRON CAUSED THE PLANK TO WHICH IT WAS ATTACHED TO SPLIT AND
ONE OF THE BOLTS SECURING THE GRAB IRON TO BE PULLED THROUGH.  AS A
RESULT THE BRAKEMAN LOST HIS BALANCE AND WAS SERIOUSLY INJURED IN A
FALL IN FRONT OF THE MOVING CAR.  THE RAILROAD CONTENDED,
UNSUCCESSFULLY, THAT IT WAS NOT LIABLE BECAUSE THE GRAB IRON HAD BEEN
USED BY THE BRAKEMAN FOR A PURPOSE FOR WHICH IT WAS NOT INTENDED,
ARGUING THAT THE DUTY TO SUPPLY GRAB IRONS WAS INTENDED BY CONGRESS IN
ORDER TO PROVIDE EMPLOYEES WITH AN APPLIANCE TO GRASP WITH THE HANDS,
NOT TO PROVIDE A FOOT BRACE OR SUPPORT TO SECURE LEVERAGE IN RELEASING
A HAND BRAKE. 

IN CORAY V. SOUTHERN PACIFIC CO., 335 U.S. 520, AN EMPLOYEE OF THE
RAILROAD, RIDING A MOTOR-DRIVEN TRACK CAR BEHIND A MOVING FREIGHT
TRAIN, WAS KILLED IN A CRASH OF THE TRACK CAR INTO THE FREIGHT TRAIN
WHICH STOPPED SUDDENLY WHEN ITS BRAKES LOCKED BECAUSE OF A DEFECT IN
ITS BRAKING SYSTEM.  THE SUPREME COURT OF UTAH AFFIRMED THE STATE TRIAL
COURT'S DIRECTION OF VERDICT FOR THE RAILROAD UPON THE GROUND THAT, IN
SO FAR AS BRAKES WERE CONCERNED, THE OBJECT OF THE SAFETY APPLIANCE ACT
WAS NOT TO PROTECT EMPLOYEES FROM STANDING TRAINS, BUT FROM MOVING
TRAINS.  THE UTAH SUPREME COURT ALSO REASONED THAT THE STOPPING OF THE
TRAIN IN CONSEQUENCE OF THE LEAK IN THE VALVE WAS PRECISELY WHAT, AS A
SAFETY DEVICE, IT WAS DESIGNED TO DO.  THIS COURT REVERSED AND SAID,
ID., AT 524: 

"THE LANGUAGE SELECTED BY CONGRESS TO FIX LIABILITY IN CASES OF THIS
KIND IS SIMPLE AND DIRECT.  CONSIDERATION OF ITS MEANING BY THE
INTRODUCTION OF DIALECTICAL SUBTLETIES CAN SERVE NO USEFUL
INTERPRETATIVE PURPOSE.  THE STATUTE DECLARES THAT RAILROADS SHALL BE
RESPONSIBLE FOR THEIR EMPLOYEES' DEATHS 'RESULTING IN WHOLE OR IN PART'
FROM DEFECTIVE APPLIANCES SUCH AS WERE HERE MAINTAINED.  45 U.S.C. SEC.
51.  AND TO MAKE ITS PURPOSE CRYSTAL CLEAR, CONGRESS HAS ALSO PROVIDED
THAT 'NO SUCH EMPLOYEE  ...  SHALL BE HELD TO HAVE BEEN GUILTY OF
CONTRIBUTORY NEGLIGENCE IN ANY CASE' WHERE A VIOLATION OF THE SAFETY
APPLIANCE ACT, SUCH AS THE ONE HERE, 'CONTRIBUTED TO THE  ... DEATH OF
SUCH EMPLOYEE.'  45 U.S.C. SEC. 53.  CONGRESS HAS THUS FOR ITS OWN
REASONS IMPOSED EXTRAORDINARY SAFETY OBLIGATIONS UPON RAILROADS AND HAS
COMMANDED THAT IF A BREACH OF THESE OBLIGATIONS CONTRIBUTES IN PART TO
AN EMPLOYEE'S DEATH, THE RAILROAD MUST PAY DAMAGES.  THESE AIR-BRAKES
WERE DEFECTIVE; FOR THIS REASON ALONE THE TRAIN SUDDENLY AND
UNEXPECTEDLY STOPPED; A MOTOR TRACK CAR FOLLOWING AT ABOUT THE SAME
RATE OF SPEED AND OPERATED BY AN EMPLOYEE LOOKING IN ANOTHER DIRECTION
CRASHED INTO THE TRAIN; ALL OF THESE CIRCUMSTANCES WERE INSEPARABLY
RELATED TO ONE ANOTHER IN TIME AND SPACE.  THE JURY COULD HAVE FOUND
THAT DECEDENT'S DEATH RESULTED FROM ANY OR ALL OF THE FOREGOING
CIRCUMSTANCES." 

FINALLY, IN URIE V. THOMPSON, 337 U.S. 163, THE COURT CONSIDERED A
CLAIM BASED UPON AN ALLEGED VIOLATION OF AN INTERSTATE COMMERCE
COMMISSION REGULATION PROMULGATED UNDER THE BOILER INSPECTION ACT.  THE
REGULATION PROVIDED:  "LOCOMOTIVES SHALL BE EQUIPPED WITH PROPER
STANDING APPARATUS, WHICH SHALL BE MAINTAINED IN SAFE AND SUITABLE
CONDITION FOR SERVICE, AND TESTED BEFORE EACH TRIP.  SAND PIPES MUST BE
SECURELY FASTENED IN LINE WITH THE RAILS."  ID., AT 195.  THE PURPOSE
OF THE REQUIREMENT WAS TO PROVIDE SAND FOR TRACTION.  A FIREMAN
EMPLOYED BY THE RAILROAD FOR ALMOST THIRTY YEARS SUED TO RECOVER
DAMAGES FOR SILICOSIS ALLEGEDLY CONTRACTED FROM THE INHALATION OF
SILICATE DUST EMITTED BY ALLEGEDLY BROKEN OR FAULTILY ADJUSTED SANDERS
INTO THE DECKS AND CABS OF THE MANY LOCOMOTIVES ON WHICH HE HAD
WORKED.  THE RAILROAD CONTENDED THAT THE ICC RULE WAS DESIGNED TO
ENSURE AN ADEQUATE AUXILIARY BRAKING SYSTEM, NOT TO PROTECT EMPLOYEES
AGAINST SILICOSIS, AND THEREFORE THE EMPLOYEE COULD NOT RECOVER FOR AN
INJURY NOT OF THE KIND THE ICC RULE SOUGHT TO GUARD AGAINST.  THE COURT
REJECTED THE ARGUMENT AS RESTING ON GENERAL TORT DOCTRINE INAPPLICABLE
TO THIS CASE. 

THE DECISIVE QUESTION IN THIS CASE, THEN, IS WHETHER THE PRINCIPLES
DEVELOPED IN THIS LINE OF FELA CASES PERMIT RECOVERY FOR VIOLATION OF
THIS NAVIGATION STATUTE OR ARE LIMITED, AS THE DISSENTING OPINION WOULD
HAVE IT, TO CASES INVOLVING THE SAFETY APPLIANCE AND BOILER INSPECTION
ACTS.  OUR ATTENTION IS DIRECTED TO THE PROVISIONS OF SEC. 4 OF THE
FELA, WHICH MAKES REFERENCE TO "ANY STATUTE ENACTED FOR THE SAFETY OF
EMPLOYEES  ...  ," AND IT IS URGED THAT THIS PHRASE, IN SOME
UNEXPLAINED MANNER, CREATES A SPECIAL RELATIONSHIP BETWEEN THE FELA AND
THE SAFETY APPLIANCE AND BOILER INSPECTION ACTS.  SEVERAL ANSWERS MAY
BE GIVEN TO THIS CONTENTION. 

FIRST, SEC. 4 RELATES ENTIRELY TO THE DEFENSE OF ASSUMPTION OF RISK,
ABOLISHING THIS DEFENSE WHERE THE INJURY WAS CAUSED BY THE EMPLOYER'S
NEGLIGENCE OR BY "VIOLATION  ...  OF ANY STATUTE ENACTED FOR THE SAFETY
OF EMPLOYEES  ...  ."  IT IS SEC. 1 OF THE FELA WHICH CREATES THE CAUSE
OF ACTION AND THIS SECTION, ON ITS FACE, IS BARREN OF ANY SUGGESTION
THAT INJURIES CAUSED BY VIOLATION OF ANY STATUTE ARE TO BE TREATED
SPECIALLY.  IN FORMULATING THE RULE THAT VIOLATION OF THE SAFETY
APPLIANCE AND BOILER INSPECTION ACTS CREATES LIABILITY FOR RESULTING
INJURIES WITHOUT PROOF OF NEGLIGENCE, THE COURT RELIED ON JUDICIALLY
EVOLVED PRINCIPLES DESIGNED TO CARRY OUT THE GENERAL CONGRESSIONAL
PURPOSE OF PROVIDING APPROPRIATE REMEDIES FOR INJURIES INCURRED BY
RAILROAD EMPLOYEES.  FOR CONGRESS, IN 1908, DID NOT CRYSTALLIZE THE
APPLICATION OF THE ACT BY ENACTING SPECIFIC RULES TO GUIDE THE COURTS. 
RATHER, BY USING GENERALIZED LANGUAGE, IT CREATED ONLY A FRAMEWORK
WITHIN WHICH THE COURTS WERE LEFT TO EVOLVE, MUCH IN THE MANNER OF THE
COMMON LAW, A SYSTEM OF PRINCIPLES PROVIDING COMPENSATION FOR INJURIES
TO EMPLOYEES CONSISTENT WITH THE CHANGING REALITIES OF EMPLOYMENT IN
THE RAILROAD INDUSTRY. 

SECOND, IT IS ARGUED THAT THE SAFETY APPLIANCE AND BOILER INSPECTION
ACTS ARE SPECIAL SAFETY STATUTES AND THUS MAY EASILY BE ASSIMILATED TO
THE FELA UNDER GENERAL COMMON-LAW PRINCIPLES.  BUT THERE IS NO MAGIC IN
THE WORD "SAFETY."  IN THE CASES WE HAVE DISCUSSED IT WAS REGARDED AS
IRRELEVANT THAT THE DEFECTS IN THE APPLIANCES DID NOT DISABLE THEM FROM
PERFORMING THEIR INTENDED SAFETY FUNCTION.  FOR INSTANCE, IN GOTSCHALL
THE COUPLING DEFECT PARTING THE CARS RESULTED IN THE AUTOMATIC SETTING
OF THE EMERGENCY BRAKES AS A SAFETY MEASURE.  IN CORAY THE TRAIN
STOPPED DUE TO THE OPERATION OF THE VERY SAFETY MECHANISM REQUIRED BY
THE STATUTE.  IN URIE THE DEFECT IN THE SANDERS WHICH CAUSED SAND TO
COME INTO THE LOCOMOTIVE CABS IN NO WISE IMPAIRED THE DESIGNED SAFETY
FUNCTION OF THE SANDERS - TO PROVIDE SAND FOR TRACTION.  WE THINK THAT
THE IRRELEVANCE OF THE SAFETY ASPECT IN THESE CASES DEMONSTRATES THAT
THE BASIS OF LIABILITY IS A VIOLATION OF STATUTORY DUTY WITHOUT REGARD
TO WHETHER THE INJURY FLOWING FROM THE VIOLATION WAS THE INJURY THE
STATUTE SOUGHT TO GUARD AGAINST.  IT MUST THEREFORE BE CONCLUDED THAT
THE NATURE OF THE ACTS VIOLATED IS NOT A CONTROLLING CONSIDERATION; THE
BASIS OF LIABILITY IS THE FELA.  (FN8) 

THE COURTS, IN DEVELOPING THE FELA WITH A VIEW TO ADJUSTING EQUITABLY
BETWEEN THE WORKER AND HIS CORPORATE EMPLOYER THE RISKS INHERENT IN THE
RAILROAD INDUSTRY, HAVE PLAINLY REJECTED MANY OF THE REFINED
DISTINCTIONS NECESSARY IN COMMON-LAW TORT DOCTRINE FOR THE PURPOSE OF
ALLOCATING RISKS BETWEEN PERSONS WHO ARE MORE NEARLY ON AN EQUAL
FOOTING AS TO FINANCIAL CAPACITY AND ABILITY TO AVOID THE HAZARDS
INVOLVED.  AMONG THE REFINEMENTS DEVELOPED BY THE COMMON LAW FOR THE
PURPOSE OF LIMITING THE RISK OF LIABILITY ARISING FROM WRONGFUL CONDUCT
IS THE RULE THAT VIOLATION OF A STATUTORY DUTY CREATES LIABILITY ONLY
WHEN THE STATUTE WAS INTENDED TO PROTECT THOSE IN THE POSITION OF THE
PLAINTIFF FROM THE TYPE OF INJURY IN FACT INCURRED.  THIS LIMITING
APPROACH HAS LONG BEEN DISCARDED FROM THE FELA.  INSTEAD, THE THEORY OF
THE FELA IS THAT WHERE THE EMPLOYER'S CONDUCT FALLS SHORT OF THE HIGH
STANDARD REQUIRED OF HIM BY THIS ACT, AND HIS FAULT, IN WHOLE OR IN
PART, CAUSES INJURY, LIABILITY ENSUES.  AND THIS RESULT FOLLOWS WHETHER
THE FAULT IS A VIOLATION OF A STATUTORY DUTY OR THE MORE GENERAL DUTY
OF ACTING WITH CARE, FOR THE EMPLOYER OWES THE EMPLOYEE, AS MUCH AS THE
DUTY OF ACTING WITH CARE, THE DUTY OF COMPLYING WITH HIS STATUTORY
OBLIGATIONS. 

WE FIND NO DIFFICULTY IN APPLYING THESE PRINCIPLES, DEVELOPED UNDER
THE FELA, TO THE PRESENT ACTION UNDER THE JONES ACT, FOR THE LATTER ACT
EXPRESSLY PROVIDES FOR SEAMEN THE CAUSE OF ACTION - AND CONSEQUENTLY
THE ENTIRE JUDICIALLY DEVELOPED DOCTRINE OF LIABILITY - GRANTED TO
RAILROAD WORKERS BY THE FELA.  THE DECEASED SEAMAN HERE WAS IN A
POSITION PERFECTLY ANALOGOUS TO THAT OF THE RAILROAD WORKERS ALLOWED
RECOVERY IN THE LINE OF CASES WE HAVE DISCUSSED, AND THE PRINCIPLES
GOVERNING THOSE CASES CLEARLY SHOULD APPLY HERE. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED WITH DIRECTION TO
REMAND TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  REVERSED. 

FN1  33 CFR SEC. 80.16(H).  "SCOWS NOT OTHERWISE PROVIDED FOR IN THIS
CARRY A WHITE LIGHT AT EACH END OF EACH SCOW, EXCEPT THAT WHEN SUCH
SCOWS ARE MASSED IN TIERS, TWO OR MORE ABREAST, EACH OF THE OUTSIDE
SCOWS SHALL CARRY A WHITE LIGHT ON ITS OUTER BOW, AND THE OUTSIDE SCOWS
IN THE LAST TIER SHALL EACH CARRY, IN ADDITION, A WHITE LIGHT ON THE
OUTER PART OF THE STERN.  THE WHITE LIGHT SHALL BE CARRIED NOT LESS
THAN 8 FEET ABOVE THE SURFACE OF THE WATER, AND SHALL BE SO PLACED AS
TO SHOW AN UNBROKEN LIGHT ALL AROUND THE HORIZON, AND SHALL BE OF SUCH
A CHARACTER AS TO BE VISIBLE ON A DARK NIGHT WITH A CLEAR ATMOSPHERE AT
A DISTANCE OF AT LEAST 5 MILES." 

THE COMMANDANT IS EMPOWERED BY 30 STAT. 102, AS AMENDED, 33 U.S.C.
SEC. 157, TO ESTABLISH RULES "AS TO THE LIGHTS TO BE CARRIED  ...  AS
HE  ...  MAY DEEM NECESSARY FOR SAFETY  ...  ."  THIS SECTION WAS
CONTAINED IN THE ACT OF JUNE 7, 1897, THE PURPOSE OF WHICH WAS TO
CODIFY THE RULES GOVERNING NAVIGATION ON INLAND WATERS AND TO CONFORM
THEM AS NEARLY AS PRACTICABLE TO THE REVISED INTERNATIONAL RULES FOR
PREVENTING COLLISIONS AT SEA ADOPTED AT THE INTERNATIONAL MARINE
CONFERENCE IN OCTOBER 1889.  30 CONG. REC. 1394; H.R. DOC.  NO. 42,
55TH CONG., 1ST SESS., P. 1. 

FN2  THE HARRISBURG DISAPPROVED LOWER FEDERAL COURT CASES, AMONG THEM
A DECISION OF CHIEF JUSTICE CHASE AT CIRCUIT, THE SEA GULL, 21 FED.
CAS. 910, NO. 12578A, WHICH HAD GIVEN A RIGHT OF ACTION FOR WRONGFUL
DEATH.  RELIANCE WAS PLACED ON THE FACT THAT ENGLISH ADMIRALTY LAW DID
NOT RECOGNIZE THE CAUSE OF ACTION ALTHOUGH CONTINENTAL MARITIME LAW
DID.  BY STATUTE, ENGLISH ADMIRALTY COURTS NOW ENTERTAIN A CAUSE OF
ACTION FOR WRONGFUL DEATH.  23 HALSBURY'S LAWS OF ENGLAND (2D ED. 1936)
SEC. 979. 

FN3  "ANY SEAMAN WHO SHALL SUFFER PERSONAL INJURY IN THE COURSE OF
HIS EMPLOYMENT MAY, AT HIS ELECTION, MAINTAIN AN ACTION FOR DAMAGES AT
LAW, WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL STATUTES
OF THE UNITED STATES MODIFYING OR EXTENDING THE COMMON-LAW RIGHT OR
REMEDY IN CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES SHALL APPLY;
AND IN CASE OF THE DEATH OF ANY SEAMAN AS A RESULT OF ANY SUCH PERSONAL
INJURY THE PERSONAL REPRESENTATIVE OF SUCH SEAMAN MAY MAINTAIN AN
ACTION FOR DAMAGES AT LAW WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH
ACTION ALL STATUTES OF THE UNITED STATES CONFERRING OR REGULATING THE
RIGHT OF ACTION FOR DEATH IN THE CASE OF RAILWAY EMPLOYEES SHALL BE
APPLICABLE.  (I.E., FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS
AMENDED, 45 U.S.C.  SECS. 51-60.)  JURISDICTION IN SUCH ACTIONS SHALL
BE UNDER THE COURT OF THE DISTRICT IN WHICH THE DEFENDANT EMPLOYER
RESIDES OR IN WHICH HIS PRINCIPAL OFFICE IS LOCATED."  41 STAT. 1007,
46 U.S.C. SEC. 688. 

FN4  WHERE DEATH OCCURS BEYOND A MARINE LEAGUE FROM STATE SHORES, THE
DEATH ON THE HIGH SEAS ACT, 41 STAT. 537, 46 U.S.C. SECS. 761-768,
PROVIDES A REMEDY FOR WRONGFUL DEATH.  PRESUMABLY ANY CLAIMS, BASED ON
UNSEAWORTHINESS, FOR DAMAGES ACCRUED PRIOR TO THE DECEDENT'S DEATH
WOULD SURVIVE, AT LEAST IF A PERTINENT STATE STATUTE IS EFFECTIVE TO
BRING ABOUT A SURVIVAL OF THE SEAMAN'S RIGHT.  SEE HOLLAND V. STEAG,
INC., 143 F. SUPP.  203; CF. COX V. ROTH, 348 U.S. 207; JUST V.
CHAMBERS, 312 U.S. 383.  CLAIMS FOR MAINTENANCE AND CURE SURVIVE THE
DEATH OF THE SEAMAN.  SPERBECK V. A.L. BURBANK & CO., 190 F.2D 449. 
FOR A DISCUSSION OF THE APPLICABILITY OF A STATE WRONGFUL-DEATH STATUTE
TO AN ACTION FOR DEATH OF A NONSEAMAN BASED UPON A BREACH OF THE
WARRANTY OF SEAWORTHINESS, SEE SKOVGAARD V. THE TUNGUS, 252 F.2D 14. 

FN5  27 STAT. 531, AS AMENDED, 45 U.S.C. SECS. 1-16. 

FN6  36 STAT. 913, AS AMENDED, 45 U.S.C. SECS. 22-34. 

FN7  THE TRIAL COURT RELIED UPON RESTATEMENT, TORTS, SEC. 286,
COMMENT ON CLAUSE (C), H: "A STATUTE OR ORDINANCE MAY BE CONSTRUED AS
INTENDED TO GIVE PROTECTION AGAINST A PARTICULAR FORM OF HARM TO A
PARTICULAR INTEREST.  IF SO, THE ACTOR CANNOT BE LIABLE TO ANOTHER FOR
A VIOLATION OF THE ENACTMENT UNLESS THE HARM WHICH THE VIOLATION CAUSES
IS THAT FROM WHICH IT WAS THE PURPOSE OF THE ENACTMENT TO PROTECT THE
OTHER." 

FN8  THE DISSENTERS ARGUE THAT THE SAFETY APPLIANCE AND BOILER
INSPECTION ACTS WERE EACH PREFACED BY THE STATEMENT:  "AN ACT TO
PROMOTE THE SAFETY OF EMPLOYEES AND TRAVELERS  ...  ."  BUT WE ARE NOT
PERSUADED THAT LIABILITY UNDER THE FELA SHOULD DEPEND ON THE TITLE OF
THE ACTS WHOSE VIOLATION IS ALLEGED.  WERE WE TO RELY ON SUCH INDICIA
WE COULD POINT OUT THAT THE STATUTE HERE INVOLVED EMPOWERED THE
COMMANDANT OF THE COAST GUARD TO ESTABLISH RULES "AS TO THE LIGHTS TO
BE CARRIED  ... AS HE  ...  MAY DEEM NECESSARY FOR SAFETY  ...  ."  30
STAT. 102, 33 U.S.C. SEC. 157. 

MEMORANDUM OF MR. JUSTICE FRANKFURTER. 

SINCE IT HAS BEEN MY GENERAL PRACTICE FOR ON TO A DECADE TO REFRAIN
FROM PARTICIPATING IN THE SUBSTANTIVE DISPOSITION OF CASES ARISING
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT AND THE JONES ACT THAT HAVE
BEEN BROUGHT HERE ON WRIT OF CERTIORARI, A WORD EXPLAINING MY
PARTICIPATION TODAY IS IN ORDER. 

AFTER PERSISTENT PROTEST AGAINST GRANTING PETITIONS FOR CERTIORARI TO
REVIEW JUDGMENTS IN THE STATE COURTS AND THE UNITED STATES COURTS OF
APPEALS INVOLVING APPLICATION OF THE FEDERAL EMPLOYERS' LIABILITY ACT,
I DEEMED IT NECESSARY TO REGISTER MY CONVICTION ON THE UNJUSTIFIABILITY
OF GRANTING SUCH PETITIONS BY NOTING THAT THE PETITIONS WERE
IMPROVIDENTLY GRANTED.  SEE MY OPINION IN ROGERS V. MISSOURI PACIFIC R.
CO., 352 U.S. 500, 524.  ALL THESE CASES INVOLVED EVALUATION OF
EVIDENCE: EVIDENCE ON WHAT CONSTITUTES "NEGLIGENCE," I.E., THE COMMON
LAW CONCEPTION OF NEGLIGENCE WHICH CONGRESS ADOPTED, SUBJECT TO
QUALIFICATIONS REGARDING "CAUSATION" AND WITHDRAWAL OF COMMON-LAW
DEFENSES, AND WHICH REMAINS THE STATUTORY REQUISITE FOR LIABILITY.  IT
HAS BECOME THE PRACTICE FOR THIS COURT TO REVIEW EVIDENCE WHERE TRIAL
COURTS HAVE CONSIDERED IT THEIR DUTY TO TAKE CASES FROM JURIES OR TO
SET ASIDE JURY VERDICTS, OR WHERE APPELLATE COURTS HAVE REVERSED TRIAL
COURT DECISIONS AS TO WHAT ARE ALLOWABLE VERDICTS BY JURIES.  THIS
MANIFESTLY CEASED TO BE THE FUNCTION OF THIS COURT AFTER CONGRESS, BY
THE ACT OF SEPTEMBER 6, 1916, 39 STAT. 726, ABOLISHED APPEALS TO THE
COURT IN FEDERAL EMPLOYERS' LIABILITY ACT CASES AND RESTRICTED REVIEW
OF LOWER COURT DECISIONS IN SUCH CASES TO THE CONFINED SCOPE OF OUR
GENERAL CERTIORARI JURISDICTION. 

I AM AWARE OF THE SUGGESTION THAT THESE CASES, AT LEAST THOSE COMING
FROM THE COURTS OF APPEALS, INVOLVE A CONSTITUTIONAL ISSUE - NAMELY,
THE APPLICATION OF THE SEVENTH AMENDMENT.  THAT, I SHOULD SUPPOSE,
WOULD BE EQUALLY TRUE OF EVERY CASE IN THE FEDERAL COURTS IN WHICH THE
CLAIM IS MADE THAT A CASE SHOULD HAVE BEEN LEFT TO THE JURY, AND
EQUALLY, OF COURSE, SUCH CLAIMS (IN NON-FELA CASES, AT ANY RATE) ARE
HERE DENIED, EXCEPT IN THE MOST FLAGRANT INSTANCES.  THIS COURT HAS
SAID AGAIN AND AGAIN, IN OTHER THAN FELA CASES, THAT QUESTIONS OF FACT
AND THAT IS ESSENTIALLY WHAT THESE NEGLIGENCE CASES INVOLVE - AFFORD
AN INADMISSIBLE BASIS FOR REVIEW BY THIS COURT.  AND THIS FOR THE
CONCLUSIVE REASON THAT DELIBERATE CONSIDERATION AND WISE ADJUDICATION
OF THE CASES THAT CONCEDEDLY OUGHT TO BE REVIEWED HERE MAKE A DEMAND
GREATER THAN THE RESOURCES OF TIME AND THOUGHT POSSESSED BY THIS COURT,
NO MATTER HOW ABLY CONSTITUTED, REASONABLY AFFORD.  SEE EX PARTE PERU,
318 U.S. 578, 602-603 (DISSENTING OPINION).    THIS CASE IS DIFFERENT
IN KIND FROM THOSE IN WHICH I HAVE FELT IT MY DUTY TO ABSTAIN FROM
CONSIDERATION ON THE MERITS.  THIS IS A CASE WHICH INVOLVES A SERIOUS
QUESTION OF CONSTRUCTION OF A STATUTE OF NATIONWIDE IMPORTANCE.  SUCH
QUESTIONS OF CONSTRUCTION ARE AMONG THE MOST IMPORTANT ISSUES FOR FINAL
DETERMINATION BY THIS COURT.  I THEREFORE REACH THE MERITS, AND ON THE
MERITS I JOIN THE OPINION OF MR. JUSTICE HARLAN. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON,
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

I SHARE THE VIEW OF THE COURT THAT UNDER EXISTING LAW A CAUSE OF
ACTION FOR WRONGFUL DEATH DOES NOT LIE ON PRINCIPLES OF
UNSEAWORTHINESS, AND THAT THEREFORE RESPONDENT'S LIABILITY FOR THE
DEATH CAUSED BY THIS UNFORTUNATE ACCIDENT DEPENDS ENTIRELY ON THE JONES
ACT, 41 STAT. 1007, 46 U.S.C. SEC. 688, WHICH INCORPORATES THE
PROVISIONS OF THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS
AMENDED, 45 U.S.C. SECS. 51-60, AND THEREBY REFLECTS THE PRINCIPLES OF
NEGLIGENCE UPON WHICH THE FELA IS EXPLICITLY BASED. 

THE DISTRICT COURT GRANTED EXONERATION TO RESPONDENT UPON FINDINGS
THAT THE ACCIDENT WAS NOT ATTRIBUTABLE TO NEGLIGENCE OF ANY KIND ON ITS
PART, AND IN PARTICULAR THAT RESPONDENT WAS NOT NEGLIGENT IN CARRYING
THE KEROSENE SIGNAL LANTERN, WHICH IGNITED THE FUMES FROM THE PETROLEUM
PRODUCTS ON THE SURFACE OF THE RIVER, AT A HEIGHT OF THREE FEET IN A
PART OF THE RIVER WHICH HAD NEVER BEEN CONSIDERED A DANGER AREA. 
ALTHOUGH THE DISTRICT COURT FOUND THAT THE ACCIDENT WAS TRACEABLE IN
FACT TO RESPONDENT'S VIOLATION OF A COAST GUARD REGULATION, 33 CFR SEC.
80.16(H), WHICH REQUIRED A WHITE LIGHT TO BE CARRIED AT A MINIMUM
HEIGHT OF EIGHT FEET ABOVE THE WATER, (FN1) THE COURT HELD THAT THIS
VIOLATION DID NOT OF ITSELF GIVE RISE TO LIABILITY IN NEGLIGENCE
BECAUSE THE SOLE PURPOSE OF THE STATUTE AUTHORIZING THE REGULATION, 30
STAT. 102, AS AMENDED, 33 U.S.C. SEC. 157, WAS TO GUARD AGAINST
COLLISIONS AND NOT TO PREVENT THE TYPE OF ACCIDENT WHICH HERE
RESULTED. 

THIS HOLDING, AS THE COURT SEEMS TO RECOGNIZE, WAS IN ACCORD WITH THE
FAMILIAR PRINCIPLE IN THE COMMON LAW OF NEGLIGENCE THAT INJURIES
RESULTING FROM VIOLATIONS OF A STATUTORY DUTY DO NOT GIVE RISE TO
LIABILITY UNLESS OF THE KIND THE STATUTE WAS DESIGNED TO PREVENT. 
INDEED THAT PRINCIPLE, WHICH IS BUT AN ASPECT OF THE GENERAL RULE OF
NEGLIGENCE LAW THAT INJURIES IN ORDER TO BE ACTIONABLE MUST BE WITHIN
THE RISK OF HARM WHICH A DEFENDANT'S CONDUCT HAS CREATED, SEE SEAVEY,
PRINCIPLES OF TORTS, 56 HARV. L. REV. 72, 90-29 (1942), WAS ESTABLISHED
AS LONG AGO AS 1874 BY A LEADING ENGLISH CASE, GORRIS V. SCOTT, L.R. 9
EX. 125, AND HAS BEEN FOLLOWED IN THIS COUNTRY ALMOST WITHOUT
EXCEPTION.  RESTATEMENT, TORTS, SEC. 286; PROSSER, TORTS (2D ED. 1955),
SEC. 34; LOWNDES, CIVIL LIABILITY CREATED BY CRIMINAL LEGISLATION, 16
MINN. L. REV.  361, 372-377 (1932); CF. THE EUGENE F. MORAN, 212 U.S.
466, 476 (UNDER ADMIRALTY LAW). 

THE COURT NEITHER CASTS DOUBT ON THE DISTRICT COURT'S FINDING THAT
RESPONDENT WAS NOT NEGLIGENT IN CARRYING THE TUG'S LANTERN AT THREE
FEET ABOVE THE WATER SURFACE NOR DISPUTES THAT THE SOLE PURPOSE OF THE
COAST GUARD REGULATION WAS TO GUARD AGAINST THE RISK OF COLLISION, BUT
IT NEVERTHELESS DECIDES THAT VIOLATION OF THE REGULATION IN AND OF
ITSELF RENDERED THE RESPONDENT LIABLE FOR ALL INJURIES FLOWING FROM IT.
THIS HOLDING IS SAID TO FOLLOW FROM THE DECISIONS OF THIS COURT IN A
SERIES OF FELA CASES BASED ON VIOLATIONS OF THE SAFETY APPLIANCE ACT,
27 STAT. 531, AS AMENDED, 45 U.S.C. SECS. 1-16, AND THE BOILER
INSPECTION ACT, 36 STAT. 913, AS AMENDED, 45 U.S.C. SECS. 22-34.  THESE
DECISIONS, AS THE COURT HERE PROPERLY STATES, HAVE CREATED UNDER THE
FELA AN ABSOLUTE LIABILITY - THAT IS, A LIABILITY "WITHOUT REGARD TO
NEGLIGENCE" - FOR INJURIES RESULTING FROM VIOLATIONS OF THE OTHER
ACTS.  FROM THIS, THE COURT CONCLUDES THAT THERE IS NO REASON NOT TO
EXTEND THIS ABSOLUTE LIABILITY TO CASES BASED ON THE VIOLATION OF A
STATUTORY DUTY WHICH ARE BROUGHT UNDER THE JONES ACT. 

THIS CONCLUSION I CANNOT SHARE.  A READING OF THE CASES RELIED UPON
BY THE COURT DEMONSTRATES BEYOND DISPUTE THAT THE REASONS UNDERLYING
THOSE DECISIONS HAVE NO APPLICATION IN THE CONTEXT OF THIS COAST GUARD
REGULATION AND THE JONES ACT.  IT FOLLOWS THAT LIABILITY CAN BE
IMPRESSED ON RESPONDENT ONLY BECAUSE OF NEGLIGENCE, THE THEORY UPON
WHICH THE JONES ACT IS FOUNDED. 

IN THE COURSE OF ITS DEVELOPMENT OF AN ABSOLUTE LIABILITY UNDER THE
FELA FOR INJURIES TRACEABLE TO VIOLATIONS OF THE SAFETY APPLIANCE ACT
OR THE BOILER INSPECTION ACT, THE COURT HAS FACED TWO DISTINCT
PROBLEMS.  FIRST, WAS IT NECESSARY FOR THE PLAINTIFF TO SHOW THAT THE
VIOLATION OF EITHER OF THESE SAFETY STATUTES WAS DUE TO NEGLIGENCE? 
THE ANSWER HAS UNIFORMLY BEEN "NO."  ST. LOUIS, IRON MOUNTAIN & SO. R.
CO. V. TAYLOR, 210 U.S. 281; SAN ANTONIO & A.P.R. CO. V. WAGNER, 241
U.S. 476; MINNEAPOLIS & ST. L.R. CO. V. GOTSCHALL, 244 U.S. 66;
SOUTHERN R. CO. V. LUNSFORD, 297 U.S. 398; LILLY V. GRAND TRUNK R. CO.,
317 U.S. 481.  SECOND, WAS THE DEFENDANT'S LIABILITY FOR THE INJURIES
SUFFERED LIMITED TO THOSE WITHIN THE CHARACTER OF THE RISKS WHICH THESE
STATUTES WERE DESIGNED TO ELIMINATE?  EXCEPT FOR ST. LOUIS & S.F.R. CO.
V. CONARTY, 238 U.S. 243, WHICH STANDS ALONE AND HAS NEVER SINCE BEEN
FOLLOWED, THE ANSWER HERE HAS ALSO BEEN "NO."  LOUISVILLE & N.R. CO. V.
LAYTON, 243 U.S. 617; DAVIS V. WOLFE, 263 U.S. 239; SWINSON V. CHICAGO,
ST. P., M.&O.R. CO., 294 U.S. 529; BRADY V. TERMINAL RAILROAD ASSN.,
303 U.S. 10. 

THE RATIONALE FOR THESE EARLIER CASES IS NOT ENTIRELY CLEAR, BUT
AFTER A GOOD DEAL OF UNCERTAINTY IT FINALLY BECAME ESTABLISHED IN 1948
AND 1949 THAT RAILWAY EMPLOYEES SUFFERING INJURIES IN CONSEQUENCE OF A
VIOLATION OF SAFETY REGULATIONS FOUND IN OR PROMULGATED UNDER EITHER
THE SAFETY APPLIANCE ACT OR THE BOILER INSPECTION ACT COULD MAINTAIN AN
ACTION UNDER THE FELA WITHOUT REFERENCE TO THE LAW OF NEGLIGENCE.  URIE
V. THOMPSON, 337 U.S. 163; O'DONNELL V. ELGIN, J.&E.R. CO., 338 U.S.
384; CARTER V. ATLANTA & ST. A.B.R. CO., 338 U.S. 430.  AS A RESULT OF
THESE CASES, THE SCOPE OF SEC. 1 OF THE FELA, 35 STAT. 65, AS AMENDED,
45 U.S.C. SEC. 51, HAS BEEN ENLARGED BY MAKING COMPENSABLE NOT ONLY
INJURIES "RESULTING IN WHOLE OR IN PART FROM THE NEGLIGENCE" OF THE
CARRIER, BUT ALSO THOSE RESULTING FROM VIOLATION OF THE TWO REGULATORY
ACTS, SO THAT IN EFFECT THESE ACTS GIVE RISE, THROUGH THE MEDIUM OF THE
FELA, TO A "NON-NEGLIGENCE" (O'DONNELL, SUPRA, AT 391) CAUSE OF
ACTION.  REFERRING TO THE NATURE OF THAT KIND OF ACTION THIS COURT SAID
IN CARTER, SUPRA (AT P. 434): 

"SOMETIMES THAT VIOLATION (OF THE SAFETY APPLIANCE ACT) IS DESCRIBED
AS 'NEGLIGENCE PER SE'  ... ; BUT WE HAVE MADE CLEAR IN THE O'DONNELL
CASE THAT THAT TERM IS A CONFUSING LABEL FOR WHAT IS SIMPLY A VIOLATION
OF AN ABSOLUTE DUTY. 

"ONCE THE VIOLATION IS ESTABLISHED, ONLY CASUAL RELATION IS IN
ISSUE.  AND CONGRESS HAS DIRECTED LIABILITY IF THE INJURY RESULTED 'IN
WHOLE OR IN PART' FROM DEFENDANT'S NEGLIGENCE OR ITS VIOLATION OF THE
SAFETY APPLIANCE ACT." 

THESE CASES THEN CERTAINLY DO NOT ESTABLISH ANY BROAD RULE UNDER THE
FELA THAT THE TERM "NEGLIGENCE" AS USED IN THAT ACT IS NOT SUBJECT TO
THE LIMITING DOCTRINE OF GORRIS V. SCOTT, SUPRA, WHICH THE DISTRICT
COURT APPLIED.  RATHER, THEY ARE BASED ON A THEORY OF LIABILITY WHOLLY
DIVORCED FROM NEGLIGENCE.  AND IN FACT, THE COURT TODAY INVOKES THESE
DECISIONS TO SUPPORT ITS CONCLUSION THAT A "NON-NEGLIGENCE" ACTION
BASED ON VIOLATION OF THIS COAST GUARD REGULATION LIES UNDER THE JONES
ACT.  ITS REASONS FOR THIS CONCLUSION ARE THAT THE JONES ACT
"INCORPORATES THE PROVISIONS OF THE FELA" AND "EXPRESSLY PROVIDES FOR
SEAMEN THE CAUSE OF ACTION - AND CONSEQUENTLY THE ENTIRE JUDICIALLY
DEVELOPED DOCTRINE OF LIABILITY - GRANTED TO RAILROAD WORKERS BY THE
FELA."  THE COURT THUS READS THESE DECISIONS TO ESTABLISH A DOCTRINE
UNDER THE FELA THAT INJURIES FOLLOWING ANY VIOLATION OF ANY STATUTE,
NOT SIMPLY THE SAFETY APPLIANCE AND BOILER INSPECTION ACTS, ARE
ACTIONABLE WITHOUT ANY SHOWING OF NEGLIGENCE, AND IT IS THIS DOCTRINE
WHICH, THE COURT ARGUES, THE JONES ACT ABSORBS. 

SO UNJUSTIFIABLY BROAD A VIEW OF THE DOCTRINE THIS COURT IS SAID TO
HAVE ESTABLISHED DISREGARDS THE BASIS UPON WHICH THESE EARLIER
DECISIONS PROCEED.  IN BRIEF, THEY CONCENTRATE AND EXPLICITLY REST UPON
THE PECULIAR RELATIONSHIP BETWEEN THE SAFETY APPLIANCE AND THE BOILER
INSPECTION ACTS, ON THE ONE HAND, AND THE FELA, ON THE OTHER.  IN VIEW
OF THIS RELATIONSHIP, THE COURT, RECOGNIZING THAT NEITHER OF THESE
SAFETY ACTS GIVES RISE TO A PRIVATE CAUSE OF ACTION OF ITS OWN FORCE,
SEE, E.G., URIE V. THOMPSON, SUPRA, AT P. 188, HAS READ THE FELA TO
PROVIDE THE PRIVATE REMEDY TO ENFORCE THE ABSOLUTE LIABILITY WHICH THE
COURT CONSIDERED THE OTHER ACTS TO ESTABLISH.  THE COURT'S OPINION HERE
MAKES NO EFFORT TO SHOW EITHER THAT THE STATUTE AUTHORIZING THE COAST
GUARD REGULATION WAS INTENDED TO GIVE RISE TO AN ABSOLUTE LIABILITY FOR
INJURIES RESULTING FROM ITS VIOLATION OR THAT THE JONES ACT, A STATUTE
FOUNDED ON NEGLIGENCE, WAS INTENDED TO BE THE MEDIUM OF ENFORCEMENT OF
SUCH A LIABILITY. 

IN THE CASES INVOLVING THE SAFETY APPLIANCE AND THE BOILER INSPECTION
ACTS, THE COURT HAS REPEATEDLY EMPHASIZED THAT THE MANIFEST PURPOSE OF
CONGRESS WAS TO FOSTER THROUGH THESE PARTICULAR ACTS THE SAFETY OF
EMPLOYEES AND TO MAKE EMPLOYEES SECURE IN THEIR JOBS, A PURPOSE
PARTIALLY EVIDENCED BY STATEMENTS PREFACING EACH OF THESE ACTS AS THEY
WERE ORIGINALLY ENACTED:  "AN ACT TO PROMOTE THE SAFETY OF EMPLOYEES
AND TRAVELERS UPON RAILROADS BY COMPELLING COMMON CARRIERS ENGAGED IN
INTERSTATE COMMERCE TO  ...  " FOLLOW THE RULES OF EACH ACT.  27 STAT.
531; 36 STAT. 913; ILLINOIS CENTRAL R. CO. V. WILLIAMS, 242 U.S. 462,
466-467; URIE V. THOMPSON, SUPRA, AT 190-191.  IN KEEPING WITH THIS
STATEMENT OF PURPOSE, TWO SECTIONS OF THE SAFETY APPLIANCE ACT
EXPRESSLY REFER TO THE CIVIL LIABILITY OF EMPLOYERS TO INJURED
EMPLOYEES BY ABROGATING THE COMMON-LAW DEFENSE OF ASSUMPTION OF RISK
AND BY PRESERVING SUCH CIVIL LIABILITY OVER A PARTICULAR EXCEPTION TO
THE GENERAL LIABILITY FOR FINES PAYABLE TO THE UNITED STATES WHICH IS
IMPOSED ON CARRIERS FOR VIOLATION OF THE PROVISIONS OF THE ACT.  27
STAT. 532, 45 U.S.C. SEC. 7; 36 STAT. 299, 45 U.S.C. SEC. 13. 

PARALLELING THE PROVISION OF THE SAFETY APPLIANCE ACT REFERRING TO
ASSUMPTION OF RISK IS SEC. 4 OF THE FELA, 35 STAT. 66, AS AMENDED, 45
U.S.C. SEC. 54, WHICH ABOLISHES THE DEFENSE OF ASSUMPTION OF RISK NOT
ONLY WITH RESPECT TO ACTIONS GROUNDED ON NEGLIGENCE BUT ALSO "IN ANY
CASE WHERE THE VIOLATION  ...  OF ANY STATUTE ENACTED FOR THE SAFETY OF
EMPLOYEES CONTRIBUTED TO THE INJURY OR DEATH OF" AN EMPLOYEE.  THIS
QUOTED CLAUSE IS INCLUDED ALSO IN SEC. 3 OF THE ACT, 35 STAT. 66, 45
U.S.C. SEC. 53, WHICH SUBSTITUTES FOR THE ABSOLUTE COMMON-LAW DEFENSE
OF CONTRIBUTORY NEGLIGENCE WHAT IS IN EFFECT A RULE OF COMPARATIVE
NEGLIGENCE, BUT BARS THIS DEFENSE COMPLETELY IN ACTIONS BASED ON THE
VIOLATION OF SUCH A STATUTE.  THE PHRASE "ANY STATUTE ENACTED FOR THE
SAFETY OF EMPLOYEES" OF COURSE REFERS TO THE SAFETY APPLIANCE ACT,
MOORE V. CHESAPEAKE & OHIO R. CO., 291 U.S. 205, 210, AND TO THE BOILER
INSPECTION ACT, URIE V. THOMPSON, SUPRA, AT 188-189.  THE USE OF THIS
PHRASE IN JUXTAPOSITION WITH THE TERM "NEGLIGENCE" IN THESE SECTIONS
CONFIRMS THE CONGRESSIONAL PURPOSE TO ACCORD SPECIAL TREATMENT TO
EMPLOYEES INJURED BY VIOLATIONS OF THESE ACTS. 

THESE EXPRESS INDICATIONS OF CONGRESSIONAL INTENT TO IMPOSE STRICT
LIABILITY FOR INJURIES TRACEABLE TO VIOLATIONS OF THESE STATUTES
UNDERLAY THE HOLDINGS ON WHICH THE COURT RELIES.  THE INTIMATE
RELATIONSHIP BETWEEN THE SAFETY APPLIANCE ACT AND THE FELA WAS SUMMED
UP BY THE COURT IN SAN ANTONIO & A.P.R. CO. V. WAGNER, SUPRA, IN THE
FOLLOWING LANGUAGE (P. 484): 

"IF (THE SAFETY APPLIANCE ACT) IS VIOLATED, THE QUESTION OF
NEGLIGENCE IN THE GENERAL SENSE OF WANT OF CARE IS IMMATERIAL ...  .
THE TWO STATUTES (SAFETY APPLIANCE ACT AND THE FELA) ARE IN PARI
MATERIA, AND WHERE THE (FELA) REFERS TO 'ANY DEFECT OR INSUFFICIENCY,
DUE TO ITS NEGLIGENCE, IN ITS CARS, ENGINES, APPLIANCES,' ETC., IT
CLEARLY IS THE LEGISLATIVE INTENT TO TREAT A VIOLATION OF THE SAFETY
APPLIANCE ACT AS 'NEGLIGENCE'  ... ." 

AND IN URIE V. THOMPSON, SUPRA, THE COURT CONCLUDED (P. 189): 

"IN THIS VIEW THE SAFETY APPLIANCE ACTS, TOGETHER WITH THE BOILER
INSPECTION ACT, ARE SUBSTANTIVELY IF NOT IN FORM AMENDMENTS TO THE
(FELA)  ...  .  (THEY) CANNOT BE REGARDED AS STATUTES WHOLLY SEPARATE
FROM AND INDEPENDENT OF THE (FELA).  THEY ARE RATHER SUPPLEMENTAL TO
IT, HAVING THE PURPOSE AND EFFECT OF FACILITATING EMPLOYEE RECOVERY
...  ." 

FINALLY, AS NOTED ABOVE, THE COURT IN CARTER V. ATLANTA & ST. A.B.R.
CO., SUPRA, AT 434, OBSERVED THAT "CONGRESS HAS DIRECTED LIABILITY"
UNDER THE FELA FOR INJURIES RESULTING FROM NEGLIGENCE OR FROM VIOLATION
OF THESE ACTS. 

IN SHORT, I THINK IT IS EVIDENT THAT THIS COURT'S PAST INTERPRETATION
OF THE FELA TO PROVIDE A CAUSE OF ACTION BASED ON ABSOLUTE LIABILITY
FOR INJURIES TRACEABLE TO VIOLATIONS OF THESE TWO PARTICULAR SAFETY
STATUTES HAS RESTED ENTIRELY ON ITS VIEW OF CONGRESSIONAL INTENT, AND
THAT NO GENERAL RULE OF ABSOLUTE LIABILITY WITHOUT REGARD TO NEGLIGENCE
FOR INJURIES RESULTING FROM VIOLATION OF ANY STATUTE CAN FAIRLY BE SAID
TO EMERGE FROM THESE DECISIONS.    DESPITE THE EXPLANATIONS IN THE PAST
CASES FOR CREATION OF THIS ABSOLUTE LIABILITY, THE COURT NOW ASSERTS
THAT "THE NATURE OF THE ACTS VIOLATED IS NOT A CONTROLLING
CONSIDERATION."  INDEED, IT DOES NOT EVEN APPEAR TO BE A PERTINENT
CONSIDERATION, FOR THE OPINION MAKES NO EFFORT TO SHOW THAT A SIMILAR
CONGRESSIONAL INTENT TO CREATE ABSOLUTE LIABILITY IN FAVOR OF SEAMEN,
OR EVEN TO AFFORD ADDITIONAL RIGHTS TO SEAMEN, CAN BE DISCERNED EITHER
IN THE TERMS OF THE STATUTE AUTHORIZING THIS COAST GUARD REGULATION OR
IN ITS RELATIONSHIP WITH THE JONES ACT.  IT IS ABUNDANTLY CLEAR FROM
THE FACE OF THE REGULATION, AND ITS SETTING, THAT ITS PURPOSE WAS
SIMPLY TO PREVENT COLLISIONS, RATHER THAN TO GUARD AGAINST SUCH
UNFORESEEABLE OCCURRENCES AS THE EXPLOSION IN THIS CASE.  (FN2)  THIS
IS CONFIRMED BY THE TENOR OF THE SECTION OF THE STATUTE UNDER WHICH THE
REGULATION ISSUED: 

"THE COMMANDANT OF THE UNITED STATES COAST GUARD SHALL ESTABLISH SUCH
RULES TO BE OBSERVED ON THE WATERS MENTIONED IN THE PRECEDING SECTION
BY STEAM VESSELS IN PASSING EACH OTHER AND AS TO THE LIGHTS TO BE
CARRIED ON SUCH WATERS BY FERRYBOATS AND BY VESSELS AND CRAFT OF ALL
TYPES WHEN IN TOW OF STEAM VESSELS  ...  AS HE FROM TIME TO TIME MAY
DEEM NECESSARY FOR SAFETY  ...  ."  (FN3) 

MOREOVER, ALTHOUGH ANOTHER SECTION OF THE SAME STATUTE INDICATES THAT
VIOLATION OF THIS REGULATION DOES GIVE RISE TO AN ABSOLUTE LIABILITY ON
THE PART OF THE MASTER OR MATE OF THE TUG FOR DAMAGES SUFFERED BY
PASSENGERS, THAT SECTION MAKES NO REFERENCE TO SEAMEN'S REMEDIES AND
PROVIDES GENERALLY THAT LIABILITY OF THE VESSEL OR OWNER IS NOT TO BE
AFFECTED BY THE STATUTE.  (FN4)  FINALLY, THERE ARE NO CROSS PROVISIONS
BETWEEN THIS STATUTE AND THE SECTIONS OF THE FELA INCORPORATED INTO THE
JONES ACT COMPARABLE TO THOSE FOUND BETWEEN THE FELA, ON THE ONE HAND,
AND THE SAFETY APPLIANCE AND BOILER INSPECTION ACTS, ON THE OTHER.  IN
SHORT, UNLIKE THE SITUATION AS TO THOSE STATUTES, ONE CAN LOOK IN VAIN
FOR EVIDENCE OF A CONGRESSIONAL PURPOSE TO SUPPLEMENT THE REMEDIES FOR
INJURIES DUE TO NEGLIGENCE AVAILABLE TO SEAMEN UNDER THE JONES ACT BY A
CAUSE OF ACTION BASED ON ABSOLUTE LIABILITY FOR DAMAGES SUFFERED IN
CONSEQUENCE OF A VIOLATION OF THIS COAST GUARD REGULATION.  IN THESE
CIRCUMSTANCES, THE ARGUMENT THAT SUCH A CAUSE OF ACTION ARISES BECAUSE
THE JONES ACT "EXPRESSLY PROVIDES FOR SEAMEN THE CAUSE OF ACTION  ...
GRANTED TO RAILROAD WORKERS BY THE FELA" SEEMS TO ME AN EMPTY ONE. 

THE PREMISE OF THE COURT THAT THE FELA WAS INTENDED TO LEAVE TO
FEDERAL COURTS THE DUTY OF FASHIONING REMEDIES "TO MEET  ...  CHANGING
CONCEPTS OF INDUSTRY'S DUTY TOWARD ITS WORKERS" UNDERLIES TODAY'S
HOLDING.  IN CARRYING OUT THIS DUTY, THE COURTS, AS SHOWN BY THIS
DECISION, ARE NOT TO CONSIDER THEMSELVES CONFINED BY DOCTRINES DEEPLY
INGRAINED IN THE COMMON LAW OF NEGLIGENCE UPON WHICH THE FELA WAS
PREDICATED BUT INSTEAD ARE TO BE FREE TO DEVELOP OTHER THEORIES OF
LIABILITY.  INDEED, NOT CONTENT WITH ITS PARTICULAR CONCLUSION THAT
VIOLATION OF A STATUTORY DUTY LEADS TO ABSOLUTE LIABILITY UNDER THE
FELA AND THE JONES ACT, THE COURT GOES ON TO SAY THAT "THE THEORY OF
THE FELA IS THAT WHERE THE EMPLOYER'S CONDUCT FALLS SHORT OF THE HIGH
STANDARD REQUIRED OF HIM BY THIS ACT, AND HIS FAULT, IN WHOLE OR IN
PART, CAUSES INJURY, LIABILITY ENSUES  ...  WHETHER THE FAULT IS A
VIOLATION OF A STATUTORY DUTY OR THE MORE GENERAL DUTY OF ACTING WITH
CARE  ...  ."  THUS THE COURT IN EFFECT READS OUT OF THE FELA AND THE
JONES ACT THE COMMON-LAW CONCEPTS OF FORESEEABILITY AND RISK OF HARM
WHICH LIE AT THE VERY CORE OF NEGLIGENCE LIABILITY, AND TREATS THESE
STATUTES AS MAKING EMPLOYERS IN THIS AREA VIRTUAL INSURERS OF THE
SAFETY OF THEIR EMPLOYEES. 

WHATEVER MAY BE ONE'S VIEWS OF THE ADEQUACY OF "NEGLIGENCE" LIABILITY
AS THE MEANS OF DEALING WITH OCCUPATIONAL HAZARDS IN THESE FIELDS,
CONGRESS HAS NOT LEGISLATED IN TERMS OF ABSOLUTE LIABILITY.  "THE BASIS
OF LIABILITY UNDER THE ACT IS AND REMAINS NEGLIGENCE."  WILKERSON V.
MCCARTHY, 336 U.S. 53, 69 (CONCURRING OPINION OF DOUGLAS, J.).  AND,
EXCEPT AS EXPRESSLY MODIFIED BY CONGRESS, THE TERM "NEGLIGENCE" AS IT
APPEARS IN SEC. 1 OF THE FELA HAS ALWAYS BEEN TAKEN TO EMBODY COMMON
LAW CONCEPTS.  THUS IN URIE V. THOMPSON, SUPRA, ONE OF THE PRINCIPAL
CASES ON WHICH THE COURT HERE RELIES, IT WAS SAID (AT 174, 182): 

"THE SECTION (SEC. 1 OF THE FELA) DOES NOT DEFINE NEGLIGENCE, LEAVING
THAT QUESTION TO BE DETERMINED  ...  'BY THE COMMON LAW PRINCIPLES AS
ESTABLISHED AND APPLIED IN THE FEDERAL COURTS' ...  . 

"WE RECOGNIZE  ...  THAT THE FEDERAL EMPLOYERS' LIABILITY ACT IS
FOUNDED ON COMMON-LAW CONCEPTS OF NEGLIGENCE AND INJURY, SUBJECT TO
SUCH QUALIFICATIONS AS CONGRESS HAS IMPORTED INTO THOSE TERMS."  (FN5) 

I CANNOT AGREE THAT CONGRESS INTENDED THE FEDERAL COURTS TO ROAM AT
LARGE IN DEVISING NEW BASES OF LIABILITY TO REPLACE THE LIABILITY FOR
NEGLIGENCE WHICH THESE ACTS IMPOSED ON EMPLOYERS. 

I WOULD AFFIRM. 

FN1  THIS FINDING MUST REST ON THE ASSUMPTION OF THE DISTRICT COURT
THAT THE REGULATION FORBADE RESPONDENT TO CARRY ANY SIGNAL LIGHT AT A
HEIGHT OF LESS THAN EIGHT FEET ABOVE THE WATER.  HOWEVER, IT IS
QUESTIONABLE WHETHER THE REGULATION HAD THE EFFECT OF PROSCRIBING A
LIGHT AT THREE FEET, AS WELL AS REQUIRING A LIGHT AT A MINIMUM HEIGHT
OF EIGHT FEET.  THAT IS, THE VIOLATION OF THE REGULATION MAY HAVE
CONSISTED SOLELY IN THE ABSENCE OF A LIGHT EIGHT FEET ABOVE THE WATER,
NOT IN THE PRESENCE OF A LIGHT THREE FEET ABOVE THE WATER, IN WHICH
CASE THE ACCIDENT COULD NOT BE ATTRIBUTED TO VIOLATION OF THE
REGULATION.  FOR THE PURPOSE OF THIS OPINION, I SHALL ASSUME, AS THE
DISTRICT COURT NECESSARILY CONCLUDED, THAT THE VIOLATION OF RESPONDENT
CONSISTED IN CARRYING THE LIGHT AT THREE FEET AND WAS THUS THE FACTUAL
CAUSE OF THE ACCIDENT. 

FN2  THE PARTICULAR REGULATION VIOLATED BY RESPONDENT, 33 CFR SEC.
80.16(H), APPEARS UNDER SUBCHAPTER D OF 33 CFR, WHICH IS ENTITLED:
"NAVIGATION REQUIREMENTS FOR CERTAIN INLAND WATERS."  SECTION 80.16
ITSELF BEARS THE CAPTION:  "LIGHTS FOR BARGES, CANAL BOATS, SCOWS AND
OTHER NONDESCRIPT VESSELS ON CERTAIN INLAND WATERS ON THE ATLANTIC AND
PACIFIC COASTS."  OTHER SECTIONS UNDER SUBCHAPTER D REGULATE FOG
SIGNALS (SEC. 80.12), SPEED IN FOG (SEC. 80.13), AND NAVIGATION NEAR
BENDS AND CURVES (SEC. 80.5).  SECTION 80.16(H) ITSELF STATES THAT A
LIGHT SHALL BE CARRIED AT A MINIMUM HEIGHT OF EIGHT FEET ABOVE THE
SURFACE OF THE WATER "  ...  AND SHALL BE SO PLACED AS TO SHOW AN
UNBROKEN LIGHT ALL AROUND THE HORIZON, AND SHALL BE OF SUCH A CHARACTER
AS TO BE VISIBLE ON A DARK NIGHT WITH A CLEAR ATMOSPHERE AT A DISTANCE
OF AT LEAST 5 MILES." 

FN3  THIS SECTION, 30 STAT. 102, AS AMENDED, 33 U.S.C. SEC. 157,
APPEARS UNDER CHAPTER 3 OF TITLE 33, WHICH BEARS THE TITLE:
"NAVIGATION RULES FOR HARBORS, RIVERS, AND INLAND WATERS GENERALLY." 
OTHER SECTIONS UNDER CHAPTER 3 REFER TO SOUND SIGNALS (33 U.S.C. SEC.
191), SPEED IN FOG (33 U.S.C. SEC. 192), AND ASCERTAINMENT OF RISK OF
COLLISION (33 U.S.C. SEC. 201).  SECTION 157 WAS ORIGINALLY ENACTED AS
PART OF THE ACT OF JUNE 7, 1897, AND THE CLEAR PURPOSE OF THAT ACT WAS
SIMPLY TO EFFECT A CODIFICATION OF ALL RULES GOVERNING NAVIGATION ON
INLAND WATERS SO THAT THEY WOULD CONFORM IN THE HIGHEST POSSIBLE DEGREE
TO PREVAILING INTERNATIONAL RULES FOR THE PREVENTION OF COLLISIONS AT
SEA.  H.R. DOC. NO. 42, 55TH CONG., 1ST SESS., P. 1. 

FN4  30 STAT. 102, AS AMENDED, 33 U.S.C. SEC. 158, WAS ALSO ENACTED
AS PART OF THE ACT OF JUNE 7, 1897, NOTE 3, SUPRA.  IT PROVIDES IN PART
THAT:  "EVERY PILOT, ENGINEER, MATE, OR MASTER OF ANY STEAM VESSEL  ...
AND EVERY MASTER OR MATE OF ANY BARGE OR CANAL BOAT, WHO NEGLECTS OR
REFUSES TO OBSERVE THE PROVISIONS OF  ...  THE REGULATIONS ESTABLISHED
IN PURSUANCE OF (SEC. 157, TEXT AT NOTE 3, SUPRA)  ...  SHALL BE LIABLE
TO A PENALTY OF ONE HUNDRED DOLLARS, AND FOR ALL DAMAGES SUSTAINED BY
ANY PASSENGER IN HIS PERSON OR BAGGAGE BY SUCH NEGLECT OR REFUSAL:
PROVIDED, THAT NOTHING HEREIN SHALL RELIEVE ANY VESSEL, OWNER, OR
CORPORATION FROM ANY LIABILITY INCURRED BY REASON OF SUCH NEGLECT OR
REFUSAL."  AS ORIGINALLY DRAFTED, PRECEDING ITS ENACTMENT IN 1897,
PRESENT SEC. 158 READ SUBSTANTIALLY AS IT DOES NOW, EXCEPT THAT IT DID
NOT CONTAIN THE LAST "PROVIDED" CLAUSE.  H.R. DOC. NO. 42, 55TH CONG.,
1ST SESS., P. 9.  IN THE HOUSE DEBATES CONCERNING THE ACT OF 1897,
DISCUSSION WAS DIRECTED IN PART TO THIS SECTION AND THE QUESTION WAS
RAISED WHETHER ITS EFFECT MIGHT BE TO IMPOSE LIABILITY FOR INJURY TO
PASSENGERS EXCLUSIVELY UPON OFFICERS OF THE VESSELS, WHO MIGHT BE
FINANCIALLY IRRESPONSIBLE.  30 CONG. REC. 1395.  TO END THESE DOUBTS,
THE SECTION WAS AMENDED PRIOR TO ITS ENACTMENT BY ADDITION OF THE
"PROVIDED" CLAUSE.  REPRESENTATIVE PAYNE STATED THAT THE AMENDMENT'S
PURPOSE WAS TO MAKE CLEAR THAT LIABILITY OF THE VESSEL OR OWNER OF THE
VESSEL FOR DAMAGES WOULD REMAIN ENTIRELY UNAFFECTED BY THE SECTION.  30
CONG. REC. 1465.  IN OTHER WORDS, THE ACT OF 1897 WAS NOT INTENDED
EITHER TO DEFINE TO ANY EXTENT LIABILITY OF A VESSEL OR ITS OWNER OR TO
ADVANCE THE REMEDIES OR BROADEN THE RIGHTS OF SEAMEN, BUT SIMPLY
AFFORDED PASSENGERS REMEDIES AGAINST OFFICERS PERSONALLY LIABLE BECAUSE
OF BREACH OF REGULATIONS. 

FN5  THE QUALIFICATIONS OF COURSE REFER TO THOSE PROVISIONS OF THE
FELA NOT APPLICABLE TO THE FACTS OF THIS CASE WHICH MODIFY OR ABROGATE
THE COMMON-LAW DEFENSES OF CONTRIBUTORY NEGLIGENCE, SEC. 3, 35 STAT.
66, 45 U.S.C. SEC. 53, AND ASSUMPTION OF RISK, SEC. 4, 35 STAT.  66, AS
AMENDED, 45 U.S.C. SEC. 54. 
..END :








NATIONAL LABOR RELATIONS BOARD V. DISTRICT 50, UNITED MINE WORKERS OF
AMERICA 355 U.S. 453 


NO. 64.  ARGUED JANUARY 6, 1958 - DECIDED FEBRUARY 3, 1958 - 99 U.S.
APP. D.C. 104, 237 F.2D 585, JUDGMENT VACATED WITH INSTRUCTIONS TO
REMAND THE CASE TO THE BOARD. 


THE NATIONAL LABOR RELATIONS BOARD FOUND THAT AN EMPLOYER HAD
COMMITTED AN UNFAIR LABOR PRACTICE BY ASSISTING A UNION TO DEFEAT THE
EFFORTS OF A RIVAL UNION TO ORGANIZE THE EMPLOYER'S WORKERS, BUT THAT
THE ASSISTED UNION WAS NOT DOMINATED BY THE EMPLOYER.  IT ORDERED THE
EMPLOYER TO POST CERTAIN NOTICES AND TO WITHDRAW AND WITHHOLD
RECOGNITION FROM THE ASSISTED UNION UNTIL IT RECEIVED THE BOARD'S
CERTIFICATION AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE
EMPLOYEES.  THE ASSISTED UNION WAS NOT ELIGIBLE FOR SUCH CERTIFICATION,
BECAUSE IT WAS NOT IN COMPLIANCE WITH SEC. 9(F), (G) AND (H) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED.  THE COURT OF APPEALS
MODIFIED THE BOARD'S ORDER SO THAT THE EMPLOYER WOULD BE FREE TO
RECOGNIZE THE ASSISTED UNION NOT ONLY WHEN CERTIFIED BY THE BOARD BUT,
ALTERNATIVELY, WHEN IT "SHALL HAVE BEEN FREELY CHOSEN AS THEIR
REPRESENTATIVE BY A MAJORITY OF THE EMPLOYEES AFTER ALL EFFECTS OF
UNFAIR LABOR PRACTICES HAVE BEEN ELIMINATED."  IT ALSO STRUCK FROM THE
BOARD'S NOTICE REQUIREMENT CERTAIN REFERENCES TO THE RIVAL UNION. 
HELD: 

1.  IN THE CIRCUMSTANCES OF THIS CASE, THE BOARD'S ORDER IS NOT
APPROPRIATE OR ADAPTED TO THE SITUATION CALLING FOR REDRESS, AND IT
CONSTITUTES AN ABUSE OF THE BOARD'S DISCRETIONARY POWER UNDER SEC.
10(C).  PP. 458-463. 

(A)  THE CERTIFICATION REQUIREMENT, IN THESE CIRCUMSTANCES, HAS THE
EFFECT OF DISESTABLISHMENT AND THUS DEFEATS THE STATUTORY RIGHTS OF THE
EMPLOYEES, BECAUSE THIS ASSISTED BUT UNDOMINATED UNION CAN NEVER OBTAIN
CERTIFICATION SO LONG AS IT REMAINS OUT OF COMPLIANCE WITH SEC. 9(F),
(G) AND (H).  PP. 460-461. 

(B)  THE BOARD IS NOT POWERLESS TO EFFECT A REMEDY IN THIS CASE WHICH
WOULD PROPERLY RECONCILE THE OBJECTIVES OF ELIMINATING IMPROPER
EMPLOYER INTERFERENCE AND PRESERVING THE EMPLOYEES' FULL CHOICE OF A
BARGAINING REPRESENTATIVE, SINCE SEC. 9(F), (G) AND (H) ARE NOT A
BARRIER TO CONDUCT BY THE BOARD OF AN ELECTION NOT FOLLOWED BY
CERTIFICATION, OR TO THE MAKING OF AN ARRANGEMENT WITH ANOTHER
APPROPRIATE AGENCY, STATE OR FEDERAL, FOR THE CONDUCT OF AN ELECTION
UNDER CONDITIONS PRESCRIBED BY THE BOARD.  PP. 461-462. 

(C)  TO DISPENSE WITH A CERTIFICATION IN THE CASE OF A NONCOMPLYING
ASSISTED UNION, WHILE REQUIRING A CERTIFICATION IN THE CASE OF A
COMPLYING UNION, WOULD NOT NEGATIVE THE POLICY AND INTENT OF SEC. 9(F),
(G) AND (H), SINCE CONGRESS DID NOT MAKE THE FILING REQUIRED BY THOSE
SUBSECTIONS COMPULSORY OR A CONDITION PRECEDENT TO THE RIGHT OF A
NONCOMPLYING UNION TO BE RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE OF
THE EMPLOYEES.  PP. 462-463. 

2.  THE MODIFICATIONS OF THE BOARD'S CEASE-AND-DESIST ORDER MADE BY
THE COURT OF APPEALS GO BEYOND PERMISSIBLE LIMITS OF JUDICIAL REVIEW
UNDER SEC. 10(F) AND CANNOT BE SUSTAINED.  PP. 463-464. 

(A)  THE COURT'S ALTERNATIVE TO BOARD CERTIFICATION DISPENSES WITH
THE NECESSITY OF AN ELECTION AND CAN BE INTERPRETED TO LEAVE TO THE
OFFENDING EMPLOYER AND THE ASSISTED UNION THE DECISION WHEN THE EFFECT
OF THE UNFAIR LABOR PRACTICE HAS BEEN ELIMINATED AND THE EMPLOYEES HAVE
REGAINED THEIR FREEDOM OF ACTION.  P. 463. 

(B)  THE COURT'S REWRITING OF THE NOTICE TO BE POSTED WAS IMPROPER
INSOFAR AS IT DELETED REFERENCES TO THE RIVAL UNION, BECAUSE NO
OBJECTION TO THE NOTICE IN THIS RESPECT WAS EVER RAISED BY THE PARTIES
BEFORE THE BOARD.  PP. 463-464. 

3.  THE ORDERLY ADMINISTRATION OF THE ACT AND DUE REGARD FOR THE
RESPECTIVE FUNCTIONS OF THE BOARD AND THE REVIEWING COURTS REQUIRE THAT
THE JUDGMENT OF THE COURT OF APPEALS BE VACATED WITH INSTRUCTIONS TO
REMAND THE CASE TO THE BOARD FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.  P. 464. 

NATIONAL LABOR RELATIONS BOARD V. DISTRICT 50, UNITED MINE WORKERS OF
AMERICA, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD FOUND THAT BOWMAN TRANSPORTATION,
INC., COMMITTED UNFAIR LABOR PRACTICES BY ASSISTING DISTRICT 50, UNITED
MINE WORKERS, AS A MEANS OF DEFEATING THE EFFORTS OF A TEAMSTERS LOCAL
TO ORGANIZE ITS WORKERS.  (FN1)  THE CEASE-AND-DESIST ORDER WHICH
ISSUED WAS IN THE STANDARD FORM DIRECTING THE COMPANY TO WITHDRAW AND
WITHHOLD RECOGNITION FROM DISTRICT 50 UNLESS AND UNTIL IT RECEIVED THE
BOARD'S CERTIFICATION AS THE EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES.  112 N.L.R.B. 387.  (FN2)  BUT THE UNITED MINE WORKERS IS
NOT IN COMPLIANCE WITH SEC. 9(F), (G), AND (H), ADDED BY THE TAFT
HARTLEY AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 143,
29 U.S.C. SEC. 159(F), (G), (H).  (FN3)  IT IS THEREFORE NOT ELIGIBLE
FOR A BOARD CERTIFICATION AND IN CONSEQUENCE THE BOWMAN EMPLOYEES MAY
NEVER HAVE AN OPPORTUNITY TO SELECT DISTRICT 50 AS THEIR
REPRESENTATIVE.  THE BOARD DENIED THE UNITED MINE WORKERS' APPLICATION
TO DELETE THE REQUIREMENT FOR A BOARD CERTIFICATION.  113 N.L.R.B.
786.  THE QUESTION ARISES WHETHER THE REQUIREMENT FOR A BOARD
CERTIFICATION IN THESE CIRCUMSTANCES EXCEEDS THE BOARD'S DISCRETIONARY
POWER UNDER SEC. 10(C), 29 U.S.C. SEC.  160(C), TO FASHION REMEDIES TO
DISSIPATE THE EFFECTS OF AN EMPLOYER'S UNFAIR LABOR PRACTICES IN
ASSISTING A UNION. 

THE UNION PETITIONED THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA UNDER SEC. 10(F), 29 U.S.C. SEC. 160(F), WHICH AUTHORIZES A
COURT OF APPEALS TO "ENTER A DECREE ENFORCING, MODIFYING, AND ENFORCING
AS SO MODIFIED, OR SETTING ASIDE IN WHOLE OR IN PART THE ORDER OF THE
BOARD  ...  ."  THE COURT OF APPEALS, 99 U.S. APP. D.C. 104, 237 F.2D
585, DID NOT DELETE THE PROVISIONS FOR BOARD CERTIFICATION BUT MODIFIED
THE ORDER SO THAT THE COMPANY WOULD BE FREE TO RECOGNIZE DISTRICT 50
NOT ONLY WHEN CERTIFIED BY THE BOARD BUT, ALTERNATIVELY, WHEN DISTRICT
50 "SHALL HAVE BEEN FREELY CHOSEN AS SUCH (REPRESENTATIVE) BY A
MAJORITY OF THE EMPLOYEES AFTER ALL EFFECTS OF UNFAIR LABOR PRACTICES
HAVE BEEN ELIMINATED."  99 U.S. APP. D.C., AT 107, 237 F.2D, AT 588. 

THE BOARD'S ORDER ALSO REQUIRED THE COMPANY TO POST FOR AT LEAST 60
DAYS A NOTICE PREPARED BY THE BOARD.  IN THE NOTICE THE COMPANY WOULD
STATE TO ITS EMPLOYEES THAT IT WOULD NOT DISCOURAGE MEMBERSHIP IN, OR
INTERROGATE THE EMPLOYEES CONCERNING THEIR ACTIVITIES ON BEHALF OF, "
... TEAMSTERS  ...  LOCAL NO. 612, OR ANY OTHER LABOR ORGANIZATION  ...
," AND, FURTHER, THAT THE COMPANY WOULD "  ...  WITHHOLD ALL
RECOGNITION FROM DISTRICT 50  ...  UNLESS AND UNTIL SAID ORGANIZATION
SHALL HAVE BEEN CERTIFIED AS SUCH REPRESENTATIVE BY THE  ...  BOARD." 
112 N.L.R.B. 387, 391.  THE PARTIES RAISED NO OBJECTION TO THE NOTICE
EITHER BEFORE THE BOARD OR IN THE COURT OF APPEALS.  HOWEVER, THE COURT
OF APPEALS ON ITS OWN MOTION STRUCK FROM THE NOTICE THE REFERENCES TO
THE TEAMSTERS LOCAL, STATING ITS VIEW THAT "REFERENCES TO THAT UNION IN
THE BOARD'S FORM OF NOTICE ARE SUSCEPTIBLE OF BEING CONSTRUED AS"
INDICATING THAT THE BOARD "PREFERS TEAMSTERS."  99 U.S. APP. D.C., AT
108, 237 F.2D, AT 589.  THE COURT ALSO ADDED, TO THE PARAGRAPH IN THE
NOTICE STATING THAT THE COMPANY WOULD WITHHOLD RECOGNITION FROM
DISTRICT 50 UNTIL THE UNION RECEIVED A BOARD CERTIFICATION, THE
ALTERNATIVE "OR UNTIL DISTRICT 50 SHALL HAVE BEEN SELECTED AS SUCH
REPRESENTATIVE BY A MAJORITY OF OUR EMPLOYEES AT A TIME AT LEAST 60
DAYS LATER THAN THE DATE OF THIS NOTICE."  99 U.S. APP.  D.C., AT 109,
237 F.2D, AT 590. 

BECAUSE IMPORTANT QUESTIONS OF THE ADMINISTRATION OF THE ACT WERE
RAISED, WE GRANTED CERTIORARI ON THE BOARD'S PETITION.  352 U.S. 999. 

THE BOARD'S ORDER WAS FASHIONED UNDER SEC. 10(C), 29 U.S.C. SEC.
160(C), WHICH VESTS REMEDIAL POWER IN THE BOARD TO REDRESS UNFAIR LABOR
PRACTICES BY "AN ORDER REQUIRING SUCH PERSON COMMITTING THE UNFAIR
LABOR PRACTICE TO CEASE AND DESIST FROM SUCH UNFAIR LABOR PRACTICE, AND
TO TAKE SUCH AFFIRMATIVE ACTION  ...  AS WILL EFFECTUATE THE POLICIES
OF THIS ACT  ...  ."  THE BOARD'S DISCRETIONARY AUTHORITY TO FASHION
REMEDIES TO PURGE UNFAIR LABOR PRACTICES NECESSARILY HAS A BROAD
REACH.  LABOR BOARD V. LINK-BELT CO., 311 U.S. 584, 600.  BUT THE POWER
IS NOT LIMITLESS; IT IS CONTAINED BY THE REQUIREMENT THAT THE REMEDY
SHALL BE "APPROPRIATE," LABOR BOARD V. BRADFORD DYEING ASSN., 310 U.S.
318, AND SHALL "BE ADAPTED TO THE SITUATION WHICH CALLS FOR REDRESS,"
LABOR BOARD V. MACKAY RADIO & TELEGRAPH CO., 304 U.S. 333, 348.  THE
BOARD MAY NOT 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."  LABOR BOARD V. SEVEN-UP
BOTTLING CO., 344 U.S. 344, 349.  THE BOARD'S PROVISION FOR A BOARD
CERTIFICATION MUST THEREFORE BE EXAMINED IN THE LIGHT OF ITS
APPROPRIATENESS IN THE CIRCUMSTANCES OF THIS CASE. 

IN FORMULATING REMEDIES FOR UNFAIR LABOR PRACTICES INVOLVING
INTERFERENCE BY EMPLOYERS WITH THEIR EMPLOYEES' FREEDOM OF CHOICE OF A
REPRESENTATIVE, THE BOARD HAS ALWAYS DISTINGUISHED THE REMEDY
APPROPRIATE IN THE CASE OF A UNION DOMINATED BY AN EMPLOYER FROM THE
REMEDY APPROPRIATE IN THE CASE OF A UNION ASSISTED BUT UNDOMINATED BY
AN EMPLOYER.  IN THE CASE OF A DOMINATED UNION THE BOARD USUALLY ORDERS
THE COMPLETE DISESTABLISHMENT OF THE UNION SO THAT IT CAN NEVER BE
CERTIFIED BY THE BOARD:  THIS COURT HAS SUSTAINED SUCH ORDERS.  LABOR
BOARD V. PENNSYLVANIA GREYHOUND LINES, INC., 303 U.S. 261; LABOR BOARD
V. NEWPORT NEWS SHIPBUILDING & DRY DOCK CO., 308 U.S. 241.  ON THE
OTHER HAND, IN THE CASE OF THE ASSISTED BUT UNDOMINATED UNION, THE
BOARD HAS CONSISTENTLY DIRECTED THE EMPLOYER TO WITHHOLD RECOGNITION
FROM THE ASSISTED UNION UNTIL THE UNION RECEIVES A BOARD
CERTIFICATION.  THE BASIS FOR THE DISTINCTION IS THAT, IN THE BOARD'S
JUDGMENT, THE FREE CHOICE BY EMPLOYEES OF AN AGENT CAPABLE OF ACTING AS
THEIR TRUE REPRESENTATIVE, IN THE CASE OF A DOMINATED UNION, IS
IMPROBABLE UNDER ANY CIRCUMSTANCES, WHILE THE FREE CHOICE OF AN
ASSISTED BUT UNDOMINATED UNION, CAPABLE OF ACTING AS THEIR TRUE
REPRESENTATIVE, IS A REASONABLE POSSIBILITY AFTER THE EFFECTS OF THE
EMPLOYER'S UNFAIR LABOR PRACTICES HAVE BEEN DISSIPATED.  SEE LABOR
BOARD V. WEMYSS, 212 F.2D 465, 471, 472. 

THE REASON FOR THE BOARD'S CERTIFICATION REQUIREMENT IS TO INVOKE THE
NORMAL ELECTORAL PROCESSES BY WHICH A FREE CHOICE OF REPRESENTATIVES IS
ASSURED.  THE BOARD'S OPINION IN THIS CASE STATES THAT:

"  ...  THE BOARD HAS, SINCE ITS EARLIEST DAYS, RECOGNIZED THAT THE
POLICIES OF THE ACT COULD BEST BE EFFECTUATED IN CASES INVOLVING
VIOLATIONS OF SECTION 8(A)(2) BY DIRECTING THE OFFENDING EMPLOYERS TO
WITHHOLD THE PREFERRED TREATMENT AFFORDED TO THE LABOR ORGANIZATIONS
INVOLVED UNTIL THE EFFECT OF THE UNFAIR LABOR PRACTICES HAD BEEN
DISSIPATED AND THE MAJORITY STATUS OF SUCH UNIONS HAD BEEN ESTABLISHED
IN AN ATMOSPHERE FREE OF RESTRAINT AND COERCION."  113 N.L.R.B. 786,
787. 

AGAIN: 

"  ...  IN THE CASE OF AN ASSISTED BUT UNDOMINATED LABOR
ORGANIZATION, THE BOARD HAS REQUIRED THE OFFENDING EMPLOYER TO WITHDRAW
AND WITHHOLD RECOGNITION FROM THE ASSISTED UNION UNTIL IT WAS
CERTIFIED, THUS ENABLING THE BOARD TO ASSURE THE AFFECTED EMPLOYEES
THAT THEIR STATUTORY RIGHT TO FREELY CHOOSE A BARGAINING REPRESENTATIVE
SHALL BE PRESERVED BY CONDUCTING AN ELECTION UNDER CONDITIONS WHICH
WILL RENDER SUCH A CHOICE POSSIBLE."  113 N.L.R.B. 786, 788. 

IT IS THUS CLEAR THAT THE MOST SIGNIFICANT ELEMENT OF THE REMEDY IS
NOT THE FORMALITY OF CERTIFICATION BUT AN ELECTION, AFTER A LAPSE OF
TIME AND UNDER PROPER SAFEGUARDS, BY WHICH EMPLOYEES IN "THE PRIVACY
AND INDEPENDENCE OF THE VOTING BOOTH," BROOKS V. LABOR BOARD, 348 U.S.
96, 99-100, MAY FREELY REGISTER THEIR CHOICE WHETHER OR NOT THEY DESIRE
TO BE REPRESENTED BY THE ASSISTED UNION. 

IN THIS CASE OF A NONCOMPLYING UNION, HOWEVER, REQUIRING THE
FORMALITY OF BOARD CERTIFICATION IN ADDITION TO AN ELECTION HAS THE
SAME EFFECT AS DISESTABLISHMENT.  THIS IS BECAUSE DISTRICT 50 CAN NEVER
BE CERTIFIED BY THE BOARD SO LONG AS THE UNITED MINE WORKERS REMAIN OUT
OF COMPLIANCE WITH SEC. 9(F), (G), AND (H).  BUT DISESTABLISHMENT HAS
BEEN APPLIED BY THE BOARD AND UPHELD BY THE COURTS ONLY IN THE CASE OF
A DOMINATED UNION, WHERE A FREE CHOICE OF A TRULY REPRESENTATIVE UNION
IS IMPROBABLE UNDER ANY CIRCUMSTANCES, AND THEREFORE WHERE AN
ABRIDGMENT OF THE STATUTORY RIGHT OF EMPLOYEES DOES NOT RESULT. 
DISTRICT 50 WAS FOUND BY THE BOARD TO BE AS ASSISTED BUT NOT A
DOMINATED UNION, SO THAT A FREE CHOICE OF DISTRICT 50 BY BOWMAN'S
EMPLOYEES IS A REASONABLE POSSIBILITY.  THEREFORE THE CERTIFICATION
REQUIREMENT HERE MISAPPLIES THE BOARD'S OWN POLICY BY ACTUALLY
DEFEATING THE STATUTORY RIGHTS OF BOWMAN'S EMPLOYEES. 

THE BOARD REASONED THAT SINCE THIS COURT HAS SUSTAINED ITS POWER
UNDER SEC. 10(C) "TO DISSIPATE THE EFFECT OF AN UNFAIR LABOR PRACTICE
BY COMPLETELY REMOVING A DOMINATED UNION  ...  , THE BOARD MANIFESTLY
HAS THE STATUTORY POWER TO IMPOSE THE LESSER SANCTION OF CERTIFICATION
IN THE CASE OF AN ASSISTED UNION ...  ."  113 N.L.R.B. 786, 788.  EVEN
IF WE GRANT THE PREMISE THAT THE BOARD MAY REMOVE A DOMINATED UNION, IT
DOES NOT FOLLOW THAT THE BOARD MAY REMOVE THIS MERELY ASSISTED UNION. 
CERTIFICATION UNDER THE CIRCUMSTANCES OF THIS CASE IS NOT THE "LESSER
SANCTION" BUT IS SUBSTANTIALLY THE SAME AS REMOVAL.  UNLIKE AN ASSISTED
UNION, A DOMINATED UNION IS DEEMED INHERENTLY INCAPABLE OF EVER FAIRLY
REPRESENTING ITS MEMBERS.  LABOR BOARD V. PENNSYLVANIA GREYHOUND LINES,
INC., SUPRA, AT 270, 271; LABOR BOARD V. NEWPORT NEWS SHIPBUILDING &
DRY DOCK CO., SUPRA, AT 250. 

WE DO NOT THINK, HOWEVER, THAT THE BOARD LACKS AUTHORITY TO EFFECT A
REMEDY IN THIS CASE WHICH WOULD PROPERLY RECONCILE THE OBJECTIVES OF
ELIMINATING IMPROPER EMPLOYER INTERFERENCE AND PRESERVING THE
EMPLOYEES' FULL CHOICE OF A BARGAINING REPRESENTATIVE.  THE
PROHIBITIONS OF SEC. 9(F) AND (H) AGAINST INVESTIGATION OF
REPRESENTATIVES, THE REQUIREMENT OF SEC. 9(C) OF BOARD-CONDUCTED
ELECTIONS CONNECTED WITH SUCH INVESTIGATIONS, AND THE PROHIBITION OF
SEC. 9(G) AGAINST CERTIFICATION OF A NONCOMPLYING UNION, ARE CONCERNED
NOT WITH REMEDIAL ORDERS UNDER SEC. 10(C) BUT WITH QUESTIONS OF
REPRESENTATION AND UNFAIR LABOR PRACTICES "RAISED BY A LABOR
ORGANIZATION."  THE SINGLE OBJECTIVE OF SEC. 9(F), (G), AND (H) WAS "TO
STOP THE USE OF THE LABOR BOARD" BY NONCOMPLYING UNIONS.  LABOR BOARD
V. DANT, 344 U.S. 375, 385.  THESE SUBSECTIONS CONTAIN NOTHING
COMPELLING THE BOARD TO INSIST UPON A BOARD CERTIFICATION AND THUS TO
DENY THE EMPLOYEES THE RIGHT AT AN ELECTION HELD UNDER PROPER
SAFEGUARDS TO SELECT THE NONCOMPLYING ASSISTED UNION FOR THEIR
REPRESENTATIVE.  NOTHING IN THE SUBSECTIONS, FOR EXAMPLE, IS A BARRIER
TO THE CONDUCT BY THE BOARD OF AN ELECTION NOT FOLLOWED BY A
CERTIFICATION, OR TO THE MAKING OF AN ARRANGEMENT WITH ANOTHER
APPROPRIATE AGENCY, STATE OR FEDERAL, FOR THE CONDUCT OF THE ELECTION
UNDER CONDITIONS PRESCRIBED BY THE BOARD.  CLEARLY AN ELECTION UNDER
SUCH CIRCUMSTANCES WILL ALSO ACHIEVE THE BOARD'S PRIME OBJECTIVE IN
THESE CASES, VIZ., TO "DEMONSTRATE THAT  ...  THE ASSISTED UNION'S
RIGHT TO BE THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES INVOLVED HAS
BEEN ESTABLISHED IN AN ATMOSPHERE FREE OF RESTRAINT AND COERCION."  113
N.L.R.B. 786, 788.  INDEED, IN ITS BRIEF, THE BOARD IMPLIEDLY ADMITS
THE IRRELEVANCE OF THE FORMALITY OF CERTIFICATION TO THE EFFECTIVENESS
OF THE FASHIONED REMEDY, STATING THAT "  ...  IF THAT VIEW OF
CERTIFICATION IS REJECTED, THE BOARD MAY PERHAPS DEVISE OTHER MEASURES
WHICH WILL ENABLE IT TO MAKE CERTAIN THAT THE EMPLOYEES' CHOICE OF
BARGAINING REPRESENTATIVE IS IN FACT MADE IN AN ATMOSPHERE FREE OF
RESTRAINT AND COERCION  ...  ."  IN A FOOTNOTE THE BOARD SUGGESTS SUCH
AN ALTERNATIVE:  "  ...  THE BOARD MIGHT CONDUCT AN ELECTION AMONG THE
EMPLOYEES AND CERTIFY THE UNION IF IT WINS THE ELECTION PROVIDED IT IS
IN COMPLIANCE BUT OTHERWISE CERTIFY ONLY THE ARITHMETICAL RESULTS  ...
." 

THE BOARD'S OPINION ALSO STATES THAT TO DISPENSE WITH A CERTIFICATION
IN THE CASE OF A NONCOMPLYING ASSISTED UNION, WHILE REQUIRING A
CERTIFICATION IN THE CASE OF A COMPLYING UNION, "WOULD NEGATIVE THE
POLICY AND INTENT OF SECTION 9(F), (G), AND (H) OF THE ACT."  113
N.L.R.B. 786, 790.  BUT THIS MISINTERPRETS THE SCOPE OF THOSE
PROVISIONS.  "SUBSECTIONS (F), (G) AND (H) OF SEC. 9 MERELY DESCRIBE
ADVANTAGES THAT MAY BE GAINED BY COMPLIANCE WITH THEIR CONDITIONS.  THE
VERY SPECIFICITY OF THE ADVANTAGES TO BE GAINED AND THE EXPRESS
PROVISION FOR THE LOSS OF THESE ADVANTAGES IMPLY THAT NO CONSEQUENCES
OTHER THAN THOSE SO LISTED SHALL RESULT FROM NONCOMPLIANCE."  UNITED
MINE WORKERS V. ARKANSAS OAK FLOORING CO., 351 U.S. 62, 73.  CONGRESS
DID NOT IN SEC. 9(F), (G), AND (H) MAKE THE FILING REQUIRED BY THOSE
SUBSECTIONS COMPULSORY OR A CONDITION PRECEDENT TO THE RIGHT OF A
NONCOMPLYING UNION TO BE RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE OF
THE EMPLOYEES.   UNITED MINE WORKERS V. ARKANSAS OAK FLOORING CO.,
SUPRA.  SIMILARLY, THE BOARD CANNOT, THROUGH THE REQUIREMENT OF A BOARD
CERTIFICATION, MAKE NONCOMPLIANCE A REASON FOR DENYING THE EMPLOYEES
THE RIGHT TO CHOOSE THE ASSISTED UNION AT AN ELECTION WHICH CAN READILY
SERVE ITS DESIGNED PURPOSE WITHOUT SUCH CERTIFICATION.  FINALLY, WE DO
NOT BELIEVE THAT THE ISSUANCE OF AN ORDER IN THE CASE OF A NONCOMPLYING
ASSISTED UNION DIFFERENT FROM THE FORM OF ORDER CONSISTENTLY USED IN
CASES OF COMPLYING ASSISTED UNIONS EXTENDS "PREFERRED TREATMENT" TO THE
NONCOMPLYING UNION.  WHAT IT DOES IN FACT IS TO GIVE THE NONCOMPLYING
UNION SUBSTANTIALLY THE SAME TREATMENT AS A COMPLYING UNION INSTEAD OF
SUBJECTING IT TO DISABILITIES NOT INTENDED BY CONGRESS AS A RESULT OF
NONCOMPLIANCE.  THE BOARD'S ORDER IS THEREFORE NOT APPROPRIATE OR
ADAPTED TO THE SITUATION CALLING FOR REDRESS AND CONSTITUTES AN ABUSE
OF THE BOARD'S DISCRETIONARY POWER. 

HOWEVER, THE MODIFICATIONS OF THE CEASE-AND-DESIST ORDER MADE BY THE
COURT OF APPEALS GO BEYOND PERMISSIBLE LIMITS OF JUDICIAL REVIEW UNDER
SEC. 10(F) AND CANNOT BE SUSTAINED.  THE COURT'S ALTERNATIVE TO BOARD
CERTIFICATION DISPENSES WITH THE NECESSITY OF AN ELECTION AND CAN BE
INTERPRETED, AS THE BOARD ARGUES, TO LEAVE TO THE OFFENDING EMPLOYER
AND THE ASSISTED UNION THE DECISION WHEN THE EFFECT OF THE UNFAIR LABOR
PRACTICE HAS BEEN ELIMINATED AND THE EMPLOYEES HAVE REGAINED THEIR
FREEDOM OF ACTION.  NOTHING SAID IN THE ARKANSAS FLOORING CASE, UPON
WHICH THE COURT OF APPEALS RELIED, JUSTIFIES THE COURT OF APPEALS IN
GOING SO FAR AS TO DISPENSE WITH AN ELECTION UNDER PROPER SAFEGUARDS. 
THIS COURT HAS LONG RECOGNIZED THE PROPRIETY OF AN AGENCY'S CHOICE OF
AN ELECTION AS THE PROPER MEANS TO ASSURE DISSIPATION OF THE
UNWHOLESOME EFFECTS OF THE EMPLOYER'S UNLAWFUL ASSISTANCE TO A UNION. 
SEE TEXAS & NEW ORLEANS R. CO. V. BROTHERHOOD OF RAILWAY CLERKS, 281
U.S. 548.  THE BOARD'S DISCRETION HERE WAS EXCEEDED ONLY IN THE
INFLEXIBILITY OF THE REQUIREMENT FOR A BOARD CERTIFICATION
NOTWITHSTANDING ITS INAPPROPRIATENESS IN THE CIRCUMSTANCES OF THIS
CASE. 

THE REWRITING OF THE NOTICE TO BE POSTED WAS IMPROPER INSOFAR AS IT
DELETED REFERENCE TO THE TEAMSTERS UNION, BECAUSE NO OBJECTION TO THE
NOTICE IN THIS RESPECT WAS EVER RAISED BY THE PARTIES BEFORE THE
BOARD.  LABOR BOARD V. SEVEN-UP BOTTLING CO., 344 U.S. 344, 350; LABOR
BOARD V. CHENEY CALIFORNIA LUMBER CO., 327 U.S. 385, 388-389; CF.
FEDERAL POWER COMM'N V. COLORADO INTERSTATE GAS CO., 348 U.S. 492,
497.  SECTION 10(E) OF THE ACT PROVIDES: "NO OBJECTION THAT HAS NOT
BEEN URGED BEFORE THE BOARD, ITS MEMBER, AGENT, OR AGENCY, SHALL BE
CONSIDERED BY THE  ...  COURT OF APPEALS, UNLESS THE FAILURE OR NEGLECT
TO URGE SUCH OBJECTION SHALL BE EXCUSED BECAUSE OF EXTRAORDINARY
CIRCUMSTANCES."  NO EXTRAORDINARY CIRCUMSTANCES WERE SHOWN HERE. 

THE ORDERLY ADMINISTRATION OF THE ACT AND DUE REGARD FOR THE
RESPECTIVE FUNCTIONS OF THE BOARD AND REVIEWING COURTS REQUIRE THAT WE
VACATE THE JUDGMENT OF THE COURT OF APPEALS WITH INSTRUCTIONS TO REMAND
THE CASE TO THE BOARD FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THE TEAMSTERS LOCAL WAS INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL NO. 612. 
THE BOARD CONCURRED IN THE TRIAL EXAMINER'S FINDINGS THAT WHEN THE
TEAMSTERS LOCAL WAS PICKETING THE PREMISES THE COMPANY RENDERED ILLEGAL
SUPPORT AND ASSISTANCE TO DISTRICT 50 BY NEGOTIATING THE DETAILS OF A
CONTRACT WITH OFFICIALS OF THAT UNION BEFORE A SINGLE EMPLOYEE HAD
ACTUALLY AUTHORIZED IT AS A REPRESENTATIVE, BY SHOWING THE DRAFT
CONTRACT TO THE DRIVERS AT A MEETING CONVENED BY AND PRESIDED OVER BY
THE COMPANY PRESIDENT, WHO ASSURED THEM THAT IF NECESSARY HE WOULD
ADVANCE THE MONEY FOR DUES, AFTER WHICH, AND WITHIN LESS THAN THREE
HOURS, THE DRIVERS SIGNED DISTRICT 50 AUTHORIZATION CARDS, ESTABLISHED
A LOCAL WHICH HELD ITS FIRST MEETING, AT THE PRESIDENT'S SUGGESTION, ON
COMPANY PREMISES, AND CONCLUDED A CONTRACT WITH THE COMPANY. 

FN2  THIS REMEDY WAS APPARENTLY FIRST ADOPTED IN LENOX SHOE CO., 4
N.L.R.B. 372, 388, DECIDED DECEMBER 3, 1937. 

FN3  SUBSECTION (F) PROVIDES THAT NO INVESTIGATION SHALL BE MADE BY
THE BOARD CONCERNING THE REPRESENTATION OF EMPLOYEES RAISED BY A LABOR
ORGANIZATION, AND NO COMPLAINT OF UNFAIR LABOR PRACTICES SHALL BE
ISSUED PURSUANT TO A CHARGE MADE BY A LABOR ORGANIZATION, UNLESS THE
ORGANIZATION AND ANY NATIONAL OR INTERNATIONAL LABOR ORGANIZATION OF
WHICH IT IS AN AFFILIATE OR CONSTITUENT SHALL HAVE FILED WITH THE
SECRETARY OF LABOR COPIES OF THE UNION'S CONSTITUTION AND BY-LAWS AND A
REPORT SHOWING, AMONG OTHER THINGS, THE NAMES OF OFFICERS AND AGENTS
WHOSE AGGREGATE COMPENSATION AND ALLOWANCE FOR THE PRECEDING YEAR
EXCEEDED $5,000, THE AMOUNTS PAID TO EACH, THE MANNER IN WHICH SUCH
OFFICERS AND AGENTS WERE SELECTED, THE AMOUNT OF INITIATION FEES AND
DUES CHARGED TO UNION MEMBERS, THE UNION'S PROCEDURES FOLLOWED WITH
RESPECT TO QUALIFICATION FOR MEMBERSHIP, ELECTION AS OFFICERS AND
STEWARDS, ETC.  THE SUBSECTION ALSO REQUIRES THE FILING WITH THE
SECRETARY OF A REPORT SHOWING UNION RECEIPTS, DISBURSEMENTS, AND ASSETS
AND LIABILITIES.  SUBSECTION (G) REQUIRES, AMONG OTHER THINGS, THE
FILING ANNUALLY WITH THE SECRETARY OF REPORTS BRINGING UP TO DATE THE
INFORMATION REQUIRED TO BE SUPPLIED UNDER SUBSECTION (F).  SUBSECTION
(H) PROVIDES THAT NO INVESTIGATION OF A QUESTION OF REPRESENTATION
RAISED BY A LABOR ORGANIZATION SHALL BE MADE AND NO COMPLAINT OF UNFAIR
LABOR PRACTICES PURSUANT TO A CHARGE MADE BY A LABOR ORGANIZATION SHALL
ISSUE UNLESS THERE IS ON FILE WITH THE BOARD AN AFFIDAVIT EXECUTED
WITHIN THE PRECEDING YEAR BY EACH OFFICER OF THE ORGANIZATION OF WHICH
IT IS AN AFFILIATE OR CONSTITUENT 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 OR SUPPORTER OF, ANY ORGANIZATION THAT
BELIEVES IN OR TEACHES THE OVERTHROW OF THE UNITED STATES GOVERNMENT BY
FORCE OR BY ILLEGAL OR UNCONSTITUTIONAL METHODS. 
..END :














AMERICAN AIRLINES, INC. V. NORTH AMERICAN AIRLINES, INC. 355 U.S. 465 


NO. 55.  ARGUED JANUARY 30, 1958 - DECIDED FEBRUARY 3, 1958. 


98 U.S. APP. D.C. 366, 235 F.2D 863, REVERSED INSOFAR AS IT SET ASIDE
THE BOARD'S ORDER. 

AMERICAN AIRLINES, INC., V. NORTH AMERICAN AIRLINES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS REVERSED INSOFAR AS IT SET ASIDE THE BOARD'S ORDER. 
AMERICAN AIRLINES, INC., V. NORTH AMERICAN AIRLINES, INC., 351 U.S.
79. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :










FEDERAL TRADE COMMISSION V. STANDARD OIL CO. 355 U.S. 396 


NO. 24.  ARGUED NOVEMBER 14, 18, 1957 - DECIDED JANUARY 27, 1958 - 233
F.2D 649, AFFIRMED. 


HOLDING THAT SEC. 2(B) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON
PATMAN ACT, 15 U.S.C. SEC. 13(B), AFFORDS A SELLER A COMPLETE DEFENSE
TO A CHARGE OF PRICE DISCRIMINATION IF ITS LOWER PRICE WAS "MADE IN
GOOD FAITH TO MEET A LAWFUL AND EQUALLY LOW PRICE OF A COMPETITOR,"
THIS COURT REMANDED THIS CASE TO THE FEDERAL TRADE COMMISSION FOR
FINDINGS AS TO WHETHER RESPONDENT SO ACTED IN SELLING GASOLINE TO FOUR
COMPARATIVELY LARGE "JOBBER" CUSTOMERS IN DETROIT AT A LOWER PRICE THAN
IT SOLD LIKE GASOLINE TO MANY COMPARATIVELY SMALL SERVICE STATION
CUSTOMERS IN THE SAME AREA.  SUBSEQUENTLY, WITHOUT DENYING THAT
RESPONDENT'S LOWER PRICES WERE MADE TO MEET THE EQUALLY LOW PRICES OF
ITS COMPETITORS, THE COMMISSION FOUND THAT RESPONDENT'S LOWER PRICES
WERE MADE PURSUANT TO A PRICE SYSTEM RATHER THAN BEING "THE RESULT OF
DEPARTURES FROM A NONDISCRIMINATORY PRICE SCALE," AND, THEREFORE, WERE
NOT MADE "IN GOOD FAITH"; AND IT AGAIN ORDERED RESPONDENT TO CEASE AND
DESIST FROM THIS PRACTICE.  THE COURT OF APPEALS SET ASIDE THE ORDER ON
THE GROUND THAT SUCH A FINDING WAS NOT SUPPORTED BY THE RECORD.  HELD:
THE CASE TURNS ON A FACTUAL ISSUE, DECIDED BY THE COURT OF APPEALS UPON
A FAIR ASSESSMENT OF THE RECORD, AND ITS JUDGMENT IS AFFIRMED.  PP. 397
404. 

(A)  WHETHER ON THE RECORD AS A WHOLE THERE IS SUBSTANTIAL EVIDENCE
TO SUPPORT AGENCY FINDINGS IS A QUESTION WHICH CONGRESS HAS PLACED IN
THE KEEPING OF THE COURT OF APPEALS; AND THIS COURT WILL INTERVENE ONLY
WHEN THE STANDARD APPEARS TO HAVE BEEN MISAPPREHENDED OR GROSSLY
MISAPPLIED.  UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474.  PP.
400-401. 

(B)  IN DETERMINING THAT RESPONDENT'S PRICES TO THESE "JOBBERS" WERE
REDUCED AS A RESPONSE TO INDIVIDUAL COMPETITIVE SITUATIONS RATHER THAN
PURSUANT TO A PRICING SYSTEM, WHICH IS SOLELY A QUESTION OF FACT, THE
COURT OF APPEALS MADE A "FAIR ASSESSMENT" OF THE RECORD IN THIS CASE. 
PP. 401-404.   

FEDERAL TRADE COMMISSION V. STANDARD OIL CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A SEQUEL TO STANDARD OIL CO. V. FEDERAL TRADE COMM'N,
340 U.S. 231 (1951), WHEREIN THE COURT HELD THAT SEC. 2(B) OF THE
CLAYTON ACT, 38 STAT. 730, AS AMENDED BY THE ROBINSON-PATMAN ACT, 49
STAT. 1526, 15 U.S.C. SEC. 13(B), AFFORDED A SELLER A COMPLETE DEFENSE
TO A CHARGE OF PRICE DISCRIMINATION IF ITS LOWER PRICE WAS "MADE IN
GOOD FAITH TO MEET A LAWFUL AND EQUALLY LOW PRICE OF A COMPETITOR." 
340 U.S., AT 246.  WE REMANDED THE CASE WITH INSTRUCTIONS THAT THE
FEDERAL TRADE COMMISSION MAKE FINDINGS ON STANDARD'S CONTENTION THAT
ITS DISCRIMINATORY PRICES WERE SO MADE.  THE SUBSEQUENT FINDINGS ARE
NOT ALTOGETHER CLEAR.  THE COMMISSION, ACTING ON THE SAME RECORD,
SEEMINGLY DOES NOT CONTEST THE FACT THAT STANDARD'S DEDUCTIONS WERE
MADE TO MEET THE EQUALLY LOW PRICE OF ITS COMPETITORS.  HOWEVER,
STANDARD WAS HELD NOT TO HAVE ACTED IN GOOD FAITH, AND THE SEC.  2(B)
DEFENSE PRECLUDED, BECAUSE OF THE COMMISSION'S DETERMINATION THAT
STANDARD'S REDUCED PRICES WERE MADE PURSUANT TO A PRICE SYSTEM RATHER
THAN BEING "THE RESULT OF DEPARTURES FROM A NONDISCRIMINATORY PRICE
SCALE."  49 F.T.C. 923, 954.  THE COURT OF APPEALS FOUND NO BASIS IN
THE RECORD FOR SUCH A FINDING AND VACATED THE ORDER OF THE COMMISSION,
HOLDING THAT STANDARD'S "'GOOD FAITH' DEFENSE WAS FIRMLY ESTABLISHED." 
233 F.2D 649, 655.  IN VIEW OF OUR FORMER OPINION AND THE IMPORTANCE OF
BRINGING AN END TO THIS PROTRACTED LITIGATION, WE GRANTED CERTIORARI. 
352 U.S. 950 (1956).  HAVING CONCLUDED THAT THE CASE TURNS ON A FACTUAL
ISSUE, DECIDED BY THE COURT OF APPEALS UPON A FAIR ASSESSMENT OF THE
RECORD, WE AFFIRM THE DECISION BELOW. 

THE LONG HISTORY OF THIS 17-YEAR-OLD CASE MAY BE FOUND BOTH IN THE
ORIGINAL OPINION OF THE COURT OF APPEALS, 173 F.2D 210, AND IN THE
ORIGINAL OPINION OF THIS COURT, SUPRA.  THE CASE AROSE AS A COMPANION
TO SIMILAR COMPLAINTS FILED BY THE COMMISSION AGAINST GULF OIL COMPANY,
THE TEXAS COMPANY, AND SHELL OIL COMPANY.  IN ITS PETITION FOR
CERTIORARI, THE COMMISSION STRESSES THE EXISTENCE OF AN INDUSTRY-WIDE
"DUAL PRICE SYSTEM," ASSERTING THAT THE DECISION BELOW WOULD "INSULATE
FROM ATTACK A PRICE PATTERN DEEPLY ENTRENCHED IN THE INDUSTRY - NOT
ONLY IN THE DETROIT AREA, BUT ALSO ELSEWHERE IN THE COUNTRY."  THE
PENDENCY OF THE GULF, TEXAS, AND SHELL COMPLAINTS IS MENTIONED TWICE,
AND THE COMMISSION STATES IN A FOOTNOTE THAT "PROCEEDINGS THEREON HAVE
BEEN DEFERRED UNTIL THE DISPOSITION OF THIS CASE."  HOWEVER, ON APRIL
3, 1957, THE COMMISSION DECIDED THAT "IT WILL NOT NOW BE PRACTICABLE TO
TRY THE ISSUES RAISED" IN THE COMPANION COMPLAINTS "IRRESPECTIVE OF THE
FINAL OUTCOME OF  ...  THE MATTER OF STANDARD OIL COMPANY," AND
DISMISSED ALL THREE OF THE COMPANION CASES.  THE CLAIM THAT THE
ASSERTED DUAL PRICING SYSTEM WAS OF INDUSTRY-WIDE SCOPE IS NOT VITAL TO
THE COMMISSION'S POSITION HERE, WAS NOT ALLEGED IN ITS COMPLAINT, AND
IS NOT INCLUDED AMONG ITS FINDINGS; (FN1) THEREFORE, WE LIMIT OUR
CONSIDERATION OF THE PRICING SYSTEM CONTENTION TO STANDARD ALONE. 

THE COMMISSION URGES US TO EXAMINE ITS 8-VOLUME RECORD OF OVER 5,500
PAGES AND DETERMINE IF ITS FINDING THAT STANDARD REDUCED PRICES TO FOUR
"JOBBERS" (FN2) PURSUANT TO A PRICING SYSTEM WAS ERRONEOUS, AS HELD BY
THE COURT OF APPEALS.  (FN3)  THE COMMISSION CONTENDS THAT A SEC. 2(B)
DEFENSE IS PRECLUDED IF THE REDUCTIONS WERE SO MADE.  IF WRONG IN THIS,
IT MAINTAINS THAT THE "GOOD FAITH" ELEMENT OF A SEC. 2(B) DEFENSE IS
NOT MADE OUT BY SHOWING THAT COMPETITORS EMPLOY SUCH A PRICING SYSTEM,
(FN4) AND IN ANY EVENT IS NEGATIVED BY STANDARD'S FAILURE TO MAKE A
BONA FIDE EFFORT TO REVIEW ITS PRICING SYSTEM UPON PASSAGE OF THE
ROBINSON-PATMAN ACT.  (FN5) 

ON THE PRESENT POSTURE OF THE CASE WE BELIEVE THAT FURTHER REVIEW OF
THE EVIDENCE IS UNWARRANTED.  AS STATED IN FEDERAL TRADE COMM'N V.
AMERICAN TOBACCO CO., 274 U.S. 543, 544 (1927), ALTHOUGH "THE STATEMENT
OF THE PETITION FOR CERTIORARI THAT THE JUDGMENT AND OPINION BELOW
MIGHT SERIOUSLY HINDER FUTURE ADMINISTRATION OF THE LAW WAS GRAVE AND
SUFFICIENTLY PROBABLE TO JUSTIFY ISSUANCE OF THE WRIT," IT NOW APPEARS
THAT "PROPER DECISION OF THE CONTROVERSY DEPENDS UPON A QUESTION OF
FACT," AND THEREFORE "WE ADHERE TO THE USUAL RULE OF NON-INTERFERENCE
WHERE CONCLUSIONS OF CIRCUIT COURTS OF APPEALS DEPEND ON APPRECIATION
OF CIRCUMSTANCES WHICH ADMIT OF DIFFERENT INTERPRETATIONS."  MOREOVER,
IN UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 491 (1951), WE
DECIDED THAT SUBSTANTIALITY OF EVIDENCE ON THE RECORD AS A WHOLE TO
SUPPORT AGENCY FINDINGS "IS A QUESTION WHICH CONGRESS HAS PLACED IN THE
KEEPING OF THE COURTS OF APPEALS.  THIS COURT WILL INTERVENE ONLY IN
WHAT OUGHT TO BE THE RARE INSTANCE WHEN THE STANDARD APPEARS TO HAVE
BEEN MIS-APPREHENDED OR GROSSLY MISAPPLIED."  WE DO NO MORE ON THE
ISSUE OF INSUBSTANTIALITY THAN DECIDE THAT THE COURT OF APPEALS HAS
MADE A "FAIR ASSESSMENT" OF THE RECORD.  (FN6)  THAT CONCLUSION IS
STRENGTHENED BY THE FACT THAT THE FINDING MADE BY THE COURT OF APPEALS
ACCORDS WITH THAT OF THE TRIAL EXAMINER, TWO DISSENTING MEMBERS OF THE
COMMISSION, AND ANOTHER PANEL OF THE COURT OF APPEALS WHEN THE CASE WAS
FIRST BEFORE THAT COURT IN 1949, ALL OF THEM BEING AGREED THAT THE
PRICES WERE REDUCED IN GOOD FAITH TO MEET OFFERS OF COMPETITORS. 

BOTH PARTIES ACKNOWLEDGE THAT DISCRIMINATION PURSUANT TO A PRICE
SYSTEM WOULD PRECLUDE A FINDING OF "GOOD FAITH."  FEDERAL TRADE COMM'N
V. A.E. STALEY MFG. CO., 324 U.S. 746 (1945); FEDERAL TRADE COMM'N V.
CEMENT INSTITUTE, 333 U.S. 683 (1948); FEDERAL TRADE COMM'N V. NATIONAL
LEAD CO., 352 U.S. 419 (1957).  THE SOLE QUESTION THEN IS ONE OF FACT:
WERE STANDARD'S REDUCED PRICES TO FOUR "JOBBER" BUYERS - CITRIN-KOLB,
STIKEMAN, WAYNE, AND NED'S - MADE PURSUANT TO A PRICING SYSTEM RATHER
THAN TO MEET INDIVIDUAL COMPETITIVE SITUATIONS? 

WE HAVE EXAMINED THE FINDINGS OF THE COMMISSION, WHICH RELIES MOST
HEAVILY ON THE FACT THAT NO COMPETITORS' OFFERS WERE SHOWN TO HAVE BEEN
MADE TO CITRIN-KOLB, STIKEMAN, OR WAYNE PRIOR TO THE TIME STANDARD
INITIALLY GRANTED THEM THE REDUCED TANK-CAR PRICE.  (FN7)  ALL THREE OF
THESE "JOBBERS," HOWEVER, WERE GRANTED THE TANK-CAR PRICE BEFORE THE
PASSAGE OF THE ROBINSON-PATMAN ACT IN 1936, AND THE TRIAL EXAMINER
EXCLUDED PROOF OF PRE-1936 OFFERS ON THE GROUND OF IRRELEVANCY.  THE
COMMISSION APPROVED THIS RULING, AND ON REMAND FAILED TO REOPEN THE
RECORD TO TAKE ANY FURTHER PROOF.  IN OUR FORMER OPINION IN THIS CASE,
WE SAID, "THERE IS NO DOUBT THAT UNDER THE CLAYTON ACT, BEFORE ITS
AMENDMENT BY THE ROBINSON-PATMAN ACT, (SUCH) EVIDENCE WOULD HAVE BEEN
MATERIAL AND, IF ACCEPTED, WOULD HAVE ESTABLISHED A COMPLETE DEFENSE TO
THE CHARGE OF UNLAWFUL DISCRIMINATION."  340 U.S., AT 239-240.  THE
PROOF SHOULD HAVE BEEN ADMITTED; ITS ABSENCE CAN HARDLY BE RELIED ON BY
THE COMMISSION NOW AS A GROUND FOR REVERSAL.  IN ANY EVENT, THE
FINDINGS THAT WERE MADE ARE SUFFICIENT FOR OUR DISPOSITION OF THE
CASE. 

IT APPEARS TO US THAT THE CRUCIAL INQUIRY IS NOT WHY REDUCED PRICES
WERE FIRST GRANTED TO CITRIN-KOLB, STIKEMAN, AND WAYNE, BUT RATHER WHY
THE REDUCED PRICE WAS CONTINUED SUBSEQUENT TO PASSAGE OF THE ACT IN
1936.  THE FINDINGS SHOW THAT BOTH MAJOR AND LOCAL SUPPLIERS MADE
NUMEROUS ATTEMPTS IN THE 1936-1941 PERIOD TO LURE THESE "JOBBERS" AWAY
FROM STANDARD WITH CUT-RATE PRICES, OFTENTIMES MUCH LOWER THAN THE ONE
AND-ONE-HALF-CENT REDUCTION STANDARD WAS GIVING THEM.  (FN8)  IT IS
UNCONTRADICTED, AS POINTED OUT IN ONE OF THE COMMISSION DISSENTS, THAT
STANDARD LOST THREE OF ITS SEVEN "JOBBERS" BY NOT MEETING COMPETITORS'
PIRATING OFFERS IN 1933-1934.  ALL OF THIS OCCURRED IN THE CONTEXT OF A
MAJOR GASOLINE PRICE WAR IN THE DETROIT AREA, CREATED BY AN EXTREME
OVERABUNDANCE OF SUPPLY - A SETTING MOST UNLIKELY TO LEND ITSELF TO
GENERAL PRICING POLICIES.  THE COMMISSION ITSELF STATED: 

"IT MAY WELL BE THAT (STANDARD) WAS CONVINCED THAT IF IT CEASED
GRANTING TANK-CAR PRICES TO CITRIN-KOLB, WAYNE, AND STIKEMAN AND
CONTINUED TO REFUSE THE TANK-CAR PRICE TO NED'S AUTO SUPPLY COMPANY IT
WOULD LOSE THESE ACCOUNTS.  IT HAD SUBSTANTIAL REASONS FOR BELIEVING
THIS TO BE THE CASE, FOR ALL OF THESE CONCERNS, EXCEPT NED'S AUTO
SUPPLY COMPANY, HAD ALREADY BEEN RECOGNIZED AS ENTITLED TO THE TANK-CAR
PRICE UNDER THE COMMONLY ACCEPTED STANDARDS OF THE INDUSTRY, AND NED'S
HAD ACHIEVED A VOLUME OF DISTRIBUTION WHICH BROUGHT IT WITHIN THE RANGE
WHERE IT WAS LIKELY TO BE SO RECOGNIZED BY A MAJOR OIL COMPANY AT ANY
TIME."  49 F.T.C., AT 952-953. 

THE FINDINGS AS TO NED'S, THE ONLY ONE OF THE "JOBBERS" INITIALLY TO
RECEIVE THE TANK-CAR PRICE POST ROBINSON-PATMAN, ARE HIGHLY
SIGNIFICANT.  AFTER A PROLONGED PERIOD OF HAGGLING, DURING WHICH NED'S
PRESSURED STANDARD WITH INFORMATION AS TO NUMEROUS MORE ATTRACTIVE
PRICE OFFERS MADE BY OTHER SUPPLIERS, STANDARD RESPONDED TO AN
ULTIMATUM FROM NED'S IN 1936 WITH A HALF-CENT-PER-GALLON REDUCTION FROM
THE TANK-WAGON PRICE.  THE COMMISSION CONCEDES THAT THIS FIRST
REDUCTION OCCURRED AT A TIME WHEN NED'S DID NOT MEET THE CRITERIA
NORMALLY INSISTED UPON BY STANDARD BEFORE GIVING ANY REDUCTION.  TWO
YEARS LATER, AFTER A STILL FURTHER PERIOD OF HAGGLING (FN9) AND ANOTHER
NED'S ULTIMATUM, STANDARD GAVE A SECOND REDUCTION OF STILL ANOTHER
CENT. 

IN DETERMINING THAT STANDARD'S PRICES TO THESE FOUR "JOBBERS" WERE
REDUCED AS A RESPONSE TO INDIVIDUAL COMPETITIVE SITUATIONS RATHER THAN
PURSUANT TO A PRICING SYSTEM, THE COURT OF APPEALS CONSIDERED THE
FACTORS JUST MENTIONED, ALL OF WHICH WEIGH HEAVILY AGAINST THE
COMMISSION'S POSITION.   THE COMMISSION'S OWN FINDINGS THUS AFFORD
AMPLE WITNESS THAT A "FAIR ASSESSMENT" OF THE RECORD HAS BEEN MADE. 
STANDARD'S USE HERE OF TWO PRICES, THE LOWER OF WHICH COULD BE OBTAINED
UNDER THE SPUR OF THREATS TO SWITCH TO PIRATING COMPETITORS, IS A
COMPETITIVE DETERRENT FAR SHORT OF THE DISCRIMINATORY PRICING OF
STALEY, CEMENT, AND NATIONAL LEAD, SUPRA, AND ONE WHICH WE BELIEVE
WITHIN THE SANCTION OF SEC. 2(B) OF THE ROBINSON-PATMAN ACT. 
AFFIRMED. 

FN1  THE COMMISSION ADMITS THAT NOT ALL OF THE MAJOR SUPPLIERS WERE
USING THE ASSERTED DUAL PRICE SYSTEM, STATING IN ITS BRIEF THAT
STANDARD'S TWO LARGEST COMPETITORS IN THE DETROIT AREA, SOCONY-VACUUM
AND SUN OIL COMPANY, SOLD ONLY AT THE HIGHER TANK-WAGON PRICE.  THE
COMMISSION FINDINGS REVEAL THAT THOSE SUPPLIERS WHO DID OFFER A TANK
CAR PRICE TO THE STANDARD CUSTOMERS IN QUESTION WERE NOT OFFERING A
UNIFORM PRICE:  BOTH SHELL AND THE TEXAS COMPANY, FOR EXAMPLE, MADE
OFFERS OF TWO CENTS PER GALLON OFF THE TANK-WAGON PRICE, AS CONTRASTED
WITH STANDARD'S ONE-AND-ONE-HALF-CENT REDUCTION. 

FN2  THE PARTICULAR TAG "JOBBERS" IS OF NO SIGNIFICANCE HERE IN THE
LIGHT OF OUR AFFIRMANCE OF THE COURT OF APPEALS' CONCLUSION THAT THE
REDUCTIONS IN PRICE COMPLAINED OF WERE NOT MADE PURSUANT TO A PRICING
SYSTEM.  STANDARD'S USE OF THE WORD, WHILE NOT AN ACCURATE DESCRIPTION
OF THE ECONOMIC FUNCTION PERFORMED BY THE FOUR PURCHASERS, IS AS
CONSISTENT WITH A DESIRE TO PLACATE CUSTOMERS TO WHOM STANDARD WAS NOT
FORCED BY LOWER OFFERS TO GIVE A REDUCED PRICE AS IT WOULD BE WITH ANY
ASSERTED REDUCTION OF PRICES PURSUANT TO A PRICING SYSTEM. 

FN3  "  ...  WE ARE UNABLE TO DISCERN ANY BASIS FOR THE CONCLUSION
THAT PETITIONER'S PRICES 'WERE NOT THE RESULT OF DEPARTURES FROM A
NONDISCRIMINATORY PRICE SCALE.'  THE RECORD AFFIRMATIVELY DEMONSTRATES
TO THE CONTRARY.  PETITIONER SOLD INVARIABLY AT ITS UNIFORM TANK-WAGON
PRICE, EXCEPT WHEN AT DIFFERENT TIMES IT REDUCED ITS PRICE TO MEET
COMPETITIVE OFFERS IN ORDER TO RETAIN A CUSTOMER."  STANDARD OIL CO. V.
FEDERAL TRADE COMM'N, 233 F.2D 649, 654. 

FN4  THIS CONTENTION FALLS OF ITS OWN WEIGHT, FOR THE CONCLUSION THAT
THE REDUCTIONS HERE WERE NOT MADE PURSUANT TO A PRICING SYSTEM NEGATES
THE FACT ASSUMPTION UNDERLYING THE COMMISSION'S ARGUMENT THAT THERE IS
NO GOOD FAITH WHEN ONE PRICE SYSTEM IS BEING MATCHED AGAINST ANOTHER. 
THERE IS NO SHOWING OR SERIOUS CONTENTION BY THE COMMISSION THAT THE
OFFERS OF STANDARD'S COMPETITORS WERE UNLAWFUL.  INDEED, THE COURT OF
APPEALS STATED, "IN THE INSTANT SITUATION THERE IS NO FINDING, NO
CONTENTION AND NOT EVEN A SUSPICION BUT THAT THE COMPETING PRICES WHICH
PETITIONER MET WERE LAWFUL."   233 F.2D, AT 654.  THE COMMISSION ADMITS
THAT IT "DID NOT ACTUALLY ADJUDICATE THE LEGALITY OF THE COMPETING
PRICES WHICH STANDARD ALLEGEDLY MET  ...  ."  IN THE MANNER OF A CASUAL
ASIDE, THE COMMISSION BELATEDLY SUGGESTS NOW THAT THE COMPETITORS'
PRICES WERE UNLAWFUL SINCE THEY WERE SIMILAR TO STANDARD'S REDUCTIONS
AND THE LATTER WERE UNLAWFUL BECAUSE MADE PURSUANT TO A PRICING
SYSTEM.  IF THIS BE THOUGHT SUFFICIENT TO RAISE THE QUESTION, THE
FOUNDATION OF THE COMMISSION'S LOGIC IS DESTROYED BY OUR AFFIRMANCE OF
THE FINDING THAT STANDARD'S REDUCTIONS WERE NOT MADE PURSUANT TO ANY
PRICE SYSTEM. 

FN5  OUR DISPOSITION ELIMINATES THE NECESSITY OF CONSIDERING THIS
LAST POINT.  NOR NEED WE CONSIDER THE COMMISSION'S CLAIM THAT THE COURT
OF APPEALS HELD THE QUESTION INVOLVED HERE TO BE ONE OF LAW.  AN
EXAMINATION OF THE COURT'S STATEMENT, 233 F.2D, AT 651, INDICATES IT
HAD REFERENCE TO THE BROADER ISSUE OF STANDARD'S "GOOD FAITH" UNDER
SEC. 2(B).    FN6  LABOR BOARD V. PITTSBURGH S.S. CO., 340 U.S. 498,
502-503 (1951); SEE ALSO LABOR BOARD V. AMERICAN NATIONAL INS. CO., 343
U.S. 395, 409-410 (1952).  THOSE CASES CANNOT BE DISTINGUISHED FROM THE
PRESENT ONE ON THE BASIS OF THE STATUTES INVOLVED.  COMPARE NATIONAL
LABOR RELATIONS ACT, SEC. 10(E), 61 STAT. 147, 29 U.S.C. SEC. 160(E),
WITH FEDERAL TRADE COMMISSION ACT, SEC. 5(C) AND (D), 52 STAT. 112-113,
15 U.S.C. SEC. 45(C), (D).  IN UNIVERSAL CAMERA, SUPRA, THE COURT
INDICATED THAT THE REVIEW STANDARD ESTABLISHED IN THAT CASE WOULD APPLY
TO ALL INSTANCES OF COURT REVIEW OF AGENCY DECISIONS.  340 U.S., AT 488
490. 

FN7  THE COMMISSION BRIEF ALSO CLAIMS THAT REDUCTION PURSUANT TO A
PRICING SYSTEM WAS ADMITTED IN THE 1940 ANSWER FILED BY STANDARD.  THAT
PORTION OF THE ANSWER REFERRED TO, HOWEVER, WAS CONCERNED WITH
ESTABLISHING AN ALTERNATIVE AND ALTOGETHER DIFFERENT DEFENSE, NAMELY,
COST JUSTIFICATION ON THE BASIS OF FUNCTIONAL CUSTOMER CLASSIFICATION. 
SUCH DEFENSE COULD BE ARGUED EVEN IF THE REDUCTIONS WERE HELD MADE
PURSUANT TO A PRICING METHOD, AND THEREFORE IS CONSISTENT WITH THE
CLAIM OF GOOD FAITH MEETING OF COMPETITION. 

FN8  THE COMMISSION PLACES GREAT IMPORTANCE ON THE FACT THAT ONLY ONE
OF THESE OFFERS WAS A STANDING OFFER.  THIS IS NOT A SITUATION
INVOLVING ONLY ONE OR TWO COMPETITIVE RAIDS, HOWEVER; CONTINUATION OF
REDUCTIONS ONCE GRANTED IS WARRANTED BY SEC. 2(B) WHEN COMPETITORS'
REDUCED PRICE OFFERS ARE RECURRING AGAIN AND AGAIN IN A CUTTHROAT
MARKET. 

FN9  THE FINDINGS INDICATE THAT SIMILAR HAGGLING OVER AN EXTENDED
PERIOD OF TIME OCCURRED BEFORE EACH OF THE OTHER "JOBBERS" OBTAINED A
REDUCED PRICE.  THE GREAT TIME CONSUMED IN THE HAGGLING PROCESS TENDS
TO NEGATE ANY IDEA THAT THE PARTICIPANTS WERE ONLY DECIDING WHETHER A
GIVEN PURCHASER MET STANDARD'S FOUR WELL-DEFINED "JOBBER" CRITERIA -
ANNUAL VOLUME OF ONE TO TWO MILLION GALLONS, OWN DELIVERY FACILITIES,
BULK STORAGE CAPABLE OF TAKING TANK-CAR DELIVERY, AND RESPONSIBLE
CREDIT RATING. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING. 

THE COURT TODAY CRIPPLES THE ENFORCEMENT OF THE ROBINSON-PATMAN ACT,
49 STAT. 1526, 15 U.S.C. SEC. 13, IN AN IMPORTANT AREA.  SECTION 2 OF
THE ACT MAKES IT UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE "TO
DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF
LIKE GRADE AND QUALITY" WHERE THE PURCHASES ARE IN COMMERCE.  SECTION 2
FURTHER PROVIDES THAT AS PROOF OF A DISCRIMINATION "THE BURDEN OF
REBUTTING THE PRIMA-FACIE CASE" SHALL BE ON THE PERSON CHARGED WITH 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." 

FIRST.  STANDARD ADMITTED THAT IT GAVE REDUCED PRICES TO SOME
RETAILERS AND REFUSED THOSE REDUCED PRICES TO OTHER RETAILERS.  BEFORE
GRANTING THESE RETAILERS THE REDUCED PRICES STANDARD CLASSIFIED THEM AS
"JOBBERS."  STANDARD'S DEFINITION OF A "JOBBER" TOOK INTO ACCOUNT THE
VOLUME OF SALES OF THE "JOBBER," HIS BULK STORAGE FACILITIES, HIS
DELIVERY EQUIPMENT, AND HIS CREDIT RATING.  IF STANDARD'S TESTS WERE
MET, THE "RETAILER" BECAME A "JOBBER" EVEN THOUGH HE CONTINUED TO SELL
AT RETAIL.  MOREOVER, STANDARD'S TEST OF WHO WAS A "JOBBER" DID NOT
TAKE INTO ACCOUNT THE COST TO STANDARD OF MAKING THESE SALES.  SO
STANDARD'S DEFINITION OF "JOBBER" WAS ARBITRARY, BOTH AS RESPECTS THE
MATTER OF COSTS AND THE MATTER OF FUNCTION.  IT COMES DOWN TO THIS:  A
BIG RETAILER GETS ONE PRICE; A SMALL RETAILER GETS ANOTHER PRICE.  AND
THIS OCCURS AT THE IPSE DIXIT OF STANDARD, NOT BECAUSE THE COST OF
SERVING THE BIG RETAILER IS LESS NOR BECAUSE THE BIG RETAILER, AS
RESPECTS THE SALES IN QUESTION, PERFORMS A FUNCTION DIFFERENT FROM ANY
OTHER RETAILER. 

THE CONSTRUCTION NOW GIVEN THE ACT FLIES IN THE FACE OF THE POLICY
EXPRESSED BY THE PROVISIONS ALREADY QUOTED AND THE WORDS IN EXPLANATION
USED BY REPRESENTATIVE PATMAN HIMSELF: 

"WHAT ARE THE OBJECTIVES OF THIS BILL?  MR. CHAIRMAN, THERE HAS GROWN
UP IN THIS COUNTRY A POLICY IN BUSINESS THAT A FEW RICH, POWERFUL
ORGANIZATIONS BY REASON OF THEIR SIZE AND THEIR ABILITY TO COERCE AND
INTIMIDATE MANUFACTURERS HAVE FORCED THOSE MANUFACTURERS TO GIVE THEM
THEIR GOODS AT A LOWER PRICE THAN THEY GIVE TO THE INDEPENDENT
MERCHANTS UNDER THE SAME AND SIMILAR CIRCUMSTANCE AND FOR THE SAME
QUANTITIES OF GOODS.  IS THAT RIGHT OR WRONG?  IT IS WRONG.  WE ARE
ATTEMPTING TO STOP IT, RECOGNIZING THE RIGHT OF THE MANUFACTURER TO
HAVE A DIFFERENT PRICE FOR A DIFFERENT QUANTITY WHERE THERE IS A
DIFFERENCE IN THE COST OF MANUFACTURE."  80 CONG. REC. 8111. 

SECOND.  IT IS ARGUED, HOWEVER, THAT THE DISCRIMINATION IN FAVOR OF
THE BIG RETAILERS AND AGAINST THE SMALL ONES IS JUSTIFIED ON THE GROUND
THAT STANDARD DID NO MORE THAN MEET COMPETITION. 

TO REPEAT, STANDARD HAS GIVEN LOWER PRICES TO SOME RETAILERS THAN TO
OTHERS BY LABELING THE FAVORED RETAILERS AS "JOBBERS," WHEN IN FACT
THEY ARE NOT "JOBBERS."  IT SEEMS IMPOSSIBLE TO JUSTIFY THE STATUTORY
BURDEN OF SHOWING "GOOD FAITH" BY RELIANCE UPON SUCH A PLAINLY
DECEPTIVE CONTRIVANCE AS THAT. 

THE COURT CONCEDES THAT STANDARD DID NOT MEET THE BURDEN OF PROVING
ITS GOOD FAITH IF ITS DISCRIMINATORY PRICES WERE MADE PURSUANT TO A
PRICING "SYSTEM" WITHIN THE MEANING GIVEN THAT TERM BY FEDERAL TRADE
COMM'N V. STALEY CO., 324 U.S. 746; FEDERAL TRADE COMM'N V. CEMENT
INSTITUTE, 333 U.S. 683; FEDERAL TRADE COMM'N V. NATIONAL LEAD CO., 352
U.S. 419.  THE COMMISSION FOUND "THE DISCRIMINATIONS IN PRICE INVOLVED
IN THIS PROCEEDING WERE MADE PURSUANT TO RESPONDENT'S ESTABLISHED
METHOD OF PRICING."  THE RECORD AMPLY SUPPORTS THIS FINDING.  (FN1) 

IF A SELLER OFFERS A REDUCED PRICE FOR NO OTHER REASON THAN TO MEET
THE LAWFUL LOW PRICE OF A COMPETITOR, THEN THE SELLER'S OTHERWISE
UNLAWFUL PRICE FALLS WITHIN THE PROTECTION OF SEC. 2(B).  BUT WHERE, AS
HERE, A SELLER ESTABLISHES A DISCRIMINATORY PRICING SYSTEM, THIS SYSTEM
DOES NOT ACQUIRE THE PROTECTION OF SEC. 2(B) SIMPLY BECAUSE IN FACT USE
OF THE SYSTEM HOLDS A CUSTOMER AGAINST A COMPETITIVE OFFER.  IN OTHER
WORDS, A DISCRIMINATORY PRICING SYSTEM WHICH IN FACT MEETS COMPETITION
IS NOT A GOOD-FAITH MEETING OF COMPETITION WITHIN THE MEANING OF THE
ACT.  THE EFFECTIVENESS OF THE SYSTEM DOES NOT DEMONSTRATE THE GOOD
FAITH OF ITS INITIATOR. 

THIRD.  THE MERE FACT THAT A COMPETITOR OFFERED THE LOWER PRICE DOES
NOT MEAN THAT STANDARD CAN LAWFULLY MEET IT.  STANDARD'S SYSTEM OF
PRICE DISCRIMINATION, SHOWN NOT TO BE IN "GOOD FAITH," CANNOT BE
JUSTIFIED BY SHOWING THAT COMPETITORS WERE USING THE SAME SYSTEM. 
"THIS STARTLING CONCLUSION IS ADMISSIBLE ONLY UPON THE ASSUMPTION THAT
THE STATUTE PERMITS A SELLER TO MAINTAIN AN OTHERWISE UNLAWFUL SYSTEM
OF DISCRIMINATORY PRICES, MERELY BECAUSE HE HAD ADOPTED IT IN ITS
ENTIRETY, AS A MEANS OF SECURING THE BENEFITS OF A LIKE UNLAWFUL SYSTEM
MAINTAINED BY HIS COMPETITORS."  FEDERAL TRADE COMM'N V. STALEY CO.,
SUPRA, AT 753.  SEE ALSO FEDERAL TRADE COMM'N V. CEMENT INSTITUTE,
SUPRA, AT 725. 

WE SAID IN STANDARD OIL CO. V. FEDERAL TRADE COMM'N, 340 U.S. 231,
250, "CONGRESS MEANT TO PERMIT THE NATURAL CONSEQUENCES TO FOLLOW THE
SELLER'S ACTION IN MEETING IN GOOD FAITH A LAWFUL AND EQUALLY LOW PRICE
OF ITS COMPETITOR."  IT IS ONLY A LAWFUL LOWER PRICE THAT MAY BE MET. 
WERE IT OTHERWISE THEN THE LAW TO GOVERN IS NOT THE ROBINSON-PATMAN ACT
BUT THE LAW OF THE JUNGLE.  THE POINT WE HAVE NOW REACHED WAS SEEN BY
CONGRESSMAN UTTERBACK, ONE OF THE MANAGERS OF THE BILL IN CONFERENCE. 
WHAT HE SAID SHOULD DISPOSE OF THIS CASE: 

"THIS PROCEDURAL PROVISION CANNOT BE CONSTRUED AS A CARTE BLANCHE
EXEMPTION TO VIOLATE THE BILL SO LONG AS A COMPETITOR CAN BE SHOWN TO
HAVE VIOLATED IT FIRST, NOR SO LONG AS THAT COMPETITION CANNOT BE MET
WITHOUT THE USE OF OPPRESSIVE DISCRIMINATIONS IN VIOLATION OF THE
OBVIOUS INTENT OF THE BILL. 

"TO ILLUSTRATE:  THE HOUSE COMMITTEE HEARINGS SHOWED A DISCRIMINATION
OF 15 CENTS A BOX GRANTED BY COLGATE-PALMOLIVE-PEET CO. ON SALES OF
SOAP TO THE A.&P. CHAIN.  UPON A COMPLAINT AND HEARING BEFORE THE
FEDERAL TRADE COMMISSION, THIS PROVISO WOULD PERMIT THE COLGATE CO. TO
SHOW IN REBUTTAL EVIDENCE, IF SUCH WERE THE FACT, AN EQUALLY LOW PRICE
MADE BY A LOCAL SOAP MANUFACTURER IN DES MOINES, IOWA, TO A.&P.'S
RETAIL OUTLETS IN THAT CITY; BUT THIS WOULD NOT EXONERATE IT FROM A
DISCRIMINATION GRANTED TO A.&P. EVERYWHERE, IF OTHERWISE IN VIOLATION
OF THE BILL. 

"BUT THE COMMITTEE HEARINGS SHOW A SIMILAR DISCOUNT OF 15 CENTS A
CASE GRANTED BY PROCTER & GAMBLE TO THE SAME CHAIN.  IF THIS PROVISO
WERE CONSTRUED TO PERMIT THE SHOWING OF A COMPETING OFFER AS AN
ABSOLUTE BAR TO LIABILITY FOR DISCRIMINATION, THEN IT WOULD NULLIFY THE
ACT ENTIRELY AT THE VERY INCEPTION OF ITS ENFORCEMENT, FOR IN NEARLY
EVERY CASE MASS BUYERS RECEIVE SIMILAR DISCRIMINATIONS FROM COMPETING
SELLERS OF THE SAME PRODUCT.  ONE VIOLATION OF LAW CANNOT BE PERMITTED
TO JUSTIFY ANOTHER.  AS IN ANY CASE OF SELF-DEFENSE, WHILE THE ATTACK
AGAINST WHICH THE DEFENSE IS CLAIMED MAY BE SHOWN IN EVIDENCE, ITS
COMPETENCY AS A BAR DEPENDS ALSO UPON WHETHER IT WAS A LEGAL OR ILLEGAL
ATTACK.  A DISCRIMINATION IN VIOLATION OF THIS BILL IS IN PRACTICAL
EFFECT A COMMERCIAL BRIBE TO LURE THE BUSINESS OF THE FAVORED CUSTOMER
AWAY FROM THE COMPETITOR, AND IF ONE BRIBE WERE PERMITTED TO JUSTIFY
ANOTHER THE BILL WOULD BE FUTILE TO ACHIEVE ITS PLAINLY INTENDED
PURPOSES."  80 CONG. REC. 9418. 

WHEN WE LET STANDARD CLASSIFY A "RETAILER" AS A "JOBBER" AND GRANT A
DISCRIMINATORY PRICE PURSUANT TO ARBITRARY REQUIREMENTS MERELY BECAUSE
A COMPETITOR EMPLOYS THE SAME SYSTEM, (FN2) WE MAKE THIS PROVISION OF
THE ROBINSON-PATMAN ACT INEFFECTIVE.  WE SHOULD READ THE ACT IN A MORE
HOSPITABLE WAY AND ALLOW STANDARD TO MAINTAIN ITS DISCRIMINATORY PRICE
SCHEDULE FOR RETAILERS IF AND ONLY IF IT CAN SHOW: 

(A)  THAT THAT PRICE WAS JUSTIFIED ON THE BASIS OF COSTS OR FUNCTION,
OR: 

(B)  THAT IT WAS IN GOOD FAITH MEETING THE LAWFUL OFFER OF A
COMPETITOR, RATHER THAN MERELY MATCHING A PREDATORY PRICE SYSTEM, OR
MEETING A COMPETITOR'S "PIRATING" OFFERS, TO USE THE COURT'S WORD, WITH
A "PIRATING" SYSTEM OF ITS OWN. 

I WOULD REVERSE THIS JUDGMENT AND DIRECT ENFORCEMENT OF THE
COMMISSION'S ORDER. 

FN1  STANDARD'S ANSWER TO THE COMPLAINT ADMITS AS MUCH IF THE
CONCLUSORY ALLEGATIONS AS TO STANDARD'S GOOD FAITH ARE IGNORED. 
PARAGRAPH 17 OF THE ANSWER ALLEGED: 

"RESPONDENT ALLEGES THAT ITS GENERAL POLICY AND PRACTICE OF BONA
FIDELY SELECTING AND CLASSIFYING GASOLINE CUSTOMERS AS WHOLESALE OR
JOBBER CUSTOMERS, AS DISTINGUISHED FROM RETAIL RESELLERS, IS AS
FOLLOWS: 

"THAT SUCH WHOLESALE OR JOBBER CUSTOMER SO CLASSIFIED SHALL HAVE
ADEQUATE BULK STORAGE OF HIS OWN; THAT HE BE EQUIPPED TO RECEIVE BULK
DELIVERIES BY TANK CAR OR TRUCK TRAIN INTO SUCH STORAGE; THAT HE HAVE
ADEQUATE DISTRIBUTION AND DELIVERY FACILITIES; THAT HE MAKE TANK CAR
PURCHASES IN SUBSTANTIAL VOLUME AND DO A CONTINUING SUBSTANTIAL VOLUME
OF BUSINESS AS A BONA FIDE GASOLINE DEALER MAINTAINING AND OPERATING AN
ESTABLISHED GASOLINE BUSINESS; THAT HE HAVE SATISFACTORY CREDIT RATING;
THAT HE MAINTAIN A SUFFICIENT PERSONNEL AND ALL REQUISITE FACILITIES
AND EQUIPMENT TO ADEQUATELY OPERATE HIS BUSINESS, SERVICE HIS
CUSTOMERS, AND PERFORM HIS FUNCTIONS AS A WHOLESALER OR JOBBER, AND
ASSUME THE HAZARD AND EXPENSE OF FULLY OPERATING HIS OWN BUSINESS. 

"RESPONDENT ALLEGES THAT EACH OF THE FOUR CUSTOMERS NAMED IN
PARAGRAPH THREE OF THE COMPLAINT FULLY, FAIRLY, AND REASONABLY FALLS
WITHIN NOT ONLY THE REQUIREMENTS SET FORTH IN PARAGRAPH 17 ABOVE BUT
WITHIN ALL FAIR, REASONABLE, USUAL AND PROPER REQUIREMENTS FOR
CLASSIFICATION AS A WHOLESALER OR JOBBER, AND THAT EACH MAINTAINS ITS
OWN ADEQUATE BULK STORAGE, DELIVERY TANK TRUCKS, SALESMEN AND OPERATING
PERSONNEL; BUYS IN SUBSTANTIAL TANK CAR OR TRUCK TRAIN LOTS  ...  ." 

MOREOVER, THE MANAGER OF STANDARD'S DETROIT DIVISION, WHEN ASKED WHAT
CHARACTERISTICS A JOBBER MUST HAVE TO BE ENTITLED TO THE TANK CAR PRICE
REPLIED: 

"HE MUST HAVE EQUIPMENT; HE MUST HAVE EQUIPPED HIMSELF WITH BULK
STORAGE, AND, BY BULK STORAGE, I MEAN SUFFICIENT STORAGE SO THAT HE CAN
TAKE CARE OF TANK CAR QUANTITIES OF GASOLINE; HE SHOULD HAVE A VOLUME
OF BUSINESS AMOUNTING TO ABOUT 1,000,000 TO 2,000,000 GALLONS PER YEAR;
HIS CREDIT RESPONSIBILITY AND SO FORTH MUST BE SATISFACTORY; HE SHOULD
HAVE AN ESTABLISHED BUSINESS." 

ALSO, WITH ONE EXCEPTION FOR A SHORT PERIOD, THE FAVORED "JOBBERS"
ALWAYS RECEIVED THE SAME PRICE. 

FN2  THE COMMISSION'S FINDING STATED: 

"IN SELECTING THE CUSTOMERS OR PROSPECTIVE CUSTOMERS TO WHOM
(STANDARD) WILL GRANT THE TANK-CAR PRICE ON GASOLINE, THE RESPONDENT'S
CRITERION IS NOW, AND FOR MANY YEARS HAS BEEN, THAT THE CUSTOMER OR
PROSPECTIVE CUSTOMER MAKE ANNUAL PURCHASES OF NOT LESS THAN FROM ONE TO
TWO MILLION GALLONS OF GASOLINE, HAVE STORAGE FACILITIES SUFFICIENT TO
ACCEPT DELIVERY IN TANK-CAR QUANTITIES, AND HAVE A CREDIT STANDING
ASSURING PAYMENT FOR LARGE VOLUME PURCHASES.  THIS IS THE SAME
CRITERION WHICH FOR MANY YEARS HAS ALSO BEEN APPLIED BY THE
RESPONDENT'S MAJOR COMPETITORS, AND UNDER IT ANY QUESTION OF THE
DISTRIBUTIVE FUNCTION PERFORMED BY THE PURCHASER, THAT IS, WHETHER THE
PURCHASER IS A RETAIL DEALER SELLING TO THE PUBLIC OR A WHOLESALER
SELLING TO RETAIL DEALERS, IS WHOLLY IMMATERIAL."  49 F.T.C.  923, 953.
..END :















MOOG INDUSTRIES, INC. V. FEDERAL TRADE COMMISSION 355 U.S. 411 


NO. 77.  ARGUED JANUARY 14, 1958 - DECIDED JANUARY 27, 1958* - 238 F.2D
43, AFFIRMED - 241 F.2D 37, JUDGMENT VACATED AND CAUSE REMANDED. 

*TOGETHER WITH NO. 110, FEDERAL TRADE COMMISSION V. C.E. NIEHOFF &
CO., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT. 


THE QUESTION WHETHER A VALID ORDER OF THE FEDERAL TRADE COMMISSION,
DIRECTING ONE FIRM TO CEASE AND DESIST FROM ENGAGING IN ILLEGAL PRICE
DISCRIMINATION IN VIOLATION OF SEC. 2 OF THE CLAYTON ACT, SHOULD GO
INTO EFFECT BEFORE COMPETING FIRMS ARE SIMILARLY RESTRAINED IS FOR
DETERMINATION BY THE COMMISSION; IT SHOULD BE CONSIDERED BY A REVIEWING
COURT ONLY IF RAISED BEFORE THE COMMISSION; AND A DETERMINATION OF IT
BY THE COMMISSION SHOULD NOT BE OVERTURNED IN THE ABSENCE OF A PATENT
ABUSE OF DISCRETION.  PP. 411-414. 

MOOG INDUSTRIES, INC., V. FEDERAL TRADE COMMISSION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

PER CURIAM. 

THE GENERAL QUESTION PRESENTED BY THESE TWO CASES IS WHETHER IT IS
WITHIN THE SCOPE OF THE REVIEWING AUTHORITY OF A COURT OF APPEALS TO
POSTPONE THE OPERATION OF A VALID CEASE AND DESIST ORDER OF THE FEDERAL
TRADE COMMISSION AGAINST A SINGLE FIRM UNTIL SIMILAR ORDERS HAVE BEEN
ENTERED AGAINST THAT FIRM'S COMPETITORS.  IN PROCEEDINGS ARISING OUT OF
ALLEGED VIOLATIONS OF THE PRICE DISCRIMINATION PROVISIONS OF THE
CLAYTON ACT, SEC. 2, 38 STAT. 730, AS AMENDED BY THE ROBINSON-PATMAN
ACT, 49 STAT. 1526, 15 U.S.C. SEC. 13, TWO COURTS OF APPEALS REACHED
OPPOSED RESULTS ON THIS UNDERLYING ISSUE.  IN ORDER TO RESOLVE THE
CONFLICT WE GRANTED CERTIORARI, 353 U.S. 908, 982. 

IN NO. 77, PETITIONER (MOOG INDUSTRIES, INC.) WAS FOUND BY THE
COMMISSION TO HAVE VIOLATED THE ACT AND WAS ORDERED TO CEASE AND DESIST
FROM FURTHER VIOLATION.  51 F.T.C. 931.  PETITIONER SOUGHT REVIEW IN
THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.  UPON
AFFIRMANCE OF THE ORDER, 238 F.2D 43, PETITIONER MOVED THE COURT TO
HOLD THE ENTRY OF JUDGMENT IN ABEYANCE ON THE GROUND THAT PETITIONER
WOULD SUFFER SERIOUS FINANCIAL LOSS IF PROHIBITED FROM ENGAGING IN
PRICING PRACTICES OPEN TO ITS COMPETITORS.  THE COURT DENIED THE
REQUESTED RELIEF. 

IN NO. 110, RESPONDENT (C.E. NIEHOFF & CO.)  REQUESTED THE COMMISSION
TO HOLD IN ABEYANCE THE CEASE AND DESIST ORDER THAT HAD BEEN
RECOMMENDED BY THE HEARING EXAMINER, ON THE GROUND THAT RESPONDENT
WOULD HAVE TO GO OUT OF BUSINESS IF COMPELLED TO SELL AT A UNIFORM
PRICE WHILE ITS COMPETITORS WERE NOT UNDER SIMILAR RESTRAINT.  THE
COMMISSION FOUND THAT RESPONDENT HAD VIOLATED THE ACT AND, IN ISSUING
ITS ORDER, DENIED RESPONDENT'S REQUEST.  51 F.T.C. 1114, 1153.  ON
REVIEW IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT,
THE COMMISSION'S DETERMINATION OF STATUTORY VIOLATION WAS AFFIRMED;
HOWEVER, THE COURT (ONE JUDGE DISSENTING) DIRECTED THAT THE CEASE AND
DESIST ORDER SHOULD TAKE EFFECT "AT SUCH TIME IN THE FUTURE AS THE
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT MAY DIRECT, SUA
SPONTE OR UPON MOTION OF THE FEDERAL TRADE COMMISSION."  241 F.2D 37,
43. 

IN VIEW OF THE SCOPE OF ADMINISTRATIVE DISCRETION THAT CONGRESS HAS
GIVEN THE FEDERAL TRADE COMMISSION, IT IS ORDINARILY NOT FOR COURTS TO
MODIFY ANCILLARY FEATURES OF A VALID COMMISSION ORDER.  THIS IS BUT
RECOGNITION OF THE FACT THAT IN THE SHAPING OF ITS REMEDIES WITHIN THE
FRAMEWORK OF REGULATORY LEGISLATION, AN AGENCY IS CALLED UPON TO
EXERCISE ITS SPECIALIZED, EXPERIENCED JUDGMENT.  THUS, THE DECISION AS
TO WHETHER OR NOT AN ORDER AGAINST ONE FIRM TO CEASE AND DESIST FROM
ENGAGING IN ILLEGAL PRICE DISCRIMINATION SHOULD GO INTO EFFECT BEFORE
OTHERS ARE SIMILARLY PROHIBITED DEPENDS ON A VARIETY OF FACTORS
PECULIARLY WITHIN THE EXPERT UNDERSTANDING OF THE COMMISSION.  ONLY THE
COMMISSION, FOR EXAMPLE, IS COMPETENT TO MAKE AN INITIAL DETERMINATION
AS TO WHETHER AND TO WHAT EXTENT THERE IS A RELEVANT "INDUSTRY" WITHIN
WHICH THE PARTICULAR RESPONDENT COMPETES AND WHETHER OR NOT THE NATURE
OF THAT COMPETITION IS SUCH AS TO INDICATE IDENTICAL TREATMENT OF THE
ENTIRE INDUSTRY BY AN ENFORCEMENT AGENCY.  MOREOVER, ALTHOUGH AN
ALLEGEDLY ILLEGAL PRACTICE MAY APPEAR TO BE OPERATIVE THROUGHOUT AN
INDUSTRY, WHETHER SUCH APPEARANCES REFLECT FACT AND WHETHER ALL FIRMS
IN THE INDUSTRY SHOULD BE DEALT WITH IN A SINGLE PROCEEDING OR SHOULD
RECEIVE INDIVIDUAL TREATMENT ARE QUESTIONS THAT CALL FOR DISCRETIONARY
DETERMINATION BY THE ADMINISTRATIVE AGENCY.  IT IS CLEARLY WITHIN THE
SPECIAL COMPETENCE OF THE COMMISSION TO APPRAISE THE ADVERSE EFFECT ON
COMPETITION THAT MIGHT RESULT FROM POSTPONING A PARTICULAR ORDER
PROHIBITING CONTINUED VIOLATIONS OF THE LAW.  FURTHERMORE, THE
COMMISSION ALONE IS EMPOWERED TO DEVELOP THAT ENFORCEMENT POLICY BEST
CALCULATED TO ACHIEVE THE ENDS CONTEMPLATED BY CONGRESS AND TO ALLOCATE
ITS AVAILABLE FUNDS AND PERSONNEL IN SUCH A WAY AS TO EXECUTE ITS
POLICY EFFICIENTLY AND ECONOMICALLY. 

THE QUESTION, THEN, OF WHETHER ORDERS SUCH AS THOSE BEFORE US SHOULD
BE HELD IN ABEYANCE UNTIL THE RESPONDENTS' COMPETITORS ARE PROCEEDED
AGAINST IS FOR THE COMMISSION TO DECIDE.  IF THE QUESTION HAS NOT BEEN
RAISED BEFORE THE COMMISSION, AS WAS THE SITUATION IN NO. 77, A
REVIEWING COURT SHOULD NOT IN ANY EVENT ENTERTAIN IT.  IF THE
COMMISSION HAS DECIDED THE QUESTION, ITS DISCRETIONARY DETERMINATION
SHOULD NOT BE OVERTURNED IN THE ABSENCE OF A PATENT ABUSE OF
DISCRETION.  ACCORDINGLY, THE JUDGMENT IN NO. 77 IS AFFIRMED, AND THE
JUDGMENT IN NO. 110 IS VACATED AND THE CAUSE REMANDED TO THE COURT OF
APPEALS WITH DIRECTIONS TO AFFIRM THE ORDER OF THE COMMISSION IN ITS
ENTIRETY.  IT IS SO ORDERED. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 
..END :














ALLEGHANY CORP. V. BRESWICK & CO. 355 U.S. 415 


NO. 616.  DECIDED JANUARY 27, 1958* - 156 F. SUPP. 227, REVERSED AND
REMANDED. 

*TOGETHER WITH NO. 617, GRUSS ET AL. V. BRESWICK & CO. ET AL., AND
NO. 618, INTERSTATE COMMERCE COMMISSION V. BRESWICK & CO. ET AL., ALSO
ON APPEALS FROM THE SAME COURT. 


THE DISTRICT COURT SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION GRANTING APPELLANT (AN INVESTMENT COMPANY) THE STATUS OF A
NONCARRIER TO BE "CONSIDERED AS A CARRIER" UNDER SECS. 5(2) AND 5(3) OF
THE INTERSTATE COMMERCE ACT AND APPROVING AN ISSUE OF PREFERRED STOCK. 
THIS COURT REVERSED AND REMANDED THE CASE TO THE DISTRICT COURT FOR
CONSIDERATION OF APPELLEES' CLAIM THAT "THE PREFERRED STOCK ISSUE AS
APPROVED BY THE COMMISSION WAS IN VIOLATION OF THE INTERSTATE COMMERCE
ACT."  THE DISTRICT COURT THEN SUSTAINED THE STOCK ISSUE AGAINST
ATTACKS ON ITS BASIC FAIRNESS BUT ENJOINED THE ORDER APPROVING THE
ISSUE ON THE GROUND THAT THE COMMISSION HAD NOT APPROVED APPELLANT'S
ACQUISITION OF CONTROL OF A SUBSIDIARY AS A NECESSARY PRELIMINARY TO
APPROVAL OF THE STOCK ISSUE.  HELD:  THE JUDGMENT IS REVERSED AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR CONSIDERATION OF THE ONLY
CLAIM LEFT OPEN BY THIS COURT'S PRIOR DECISION, I.E., WHETHER "THE
PREFERRED STOCK ISSUE AS APPROVED BY THE COMMISSION WAS IN VIOLATION OF
THE INTERSTATE COMMERCE ACT."  P. 416. 

ALLEGHANY CORPORATION V. BRESWICK & CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED FOR CONSIDERATION BY THAT COURT OF THE ONLY CLAIM THAT WAS
LEFT OPEN AT THIS COURT'S PRIOR DISPOSITION OF THIS LITIGATION, TO WIT,
WHETHER "THE PREFERRED STOCK ISSUE AS APPROVED BY THE (INTERSTATE
COMMERCE) COMMISSION WAS IN VIOLATION OF THE INTERSTATE COMMERCE ACT." 
ALLEGHANY CORP. V. BRESWICK & CO., 353 U.S. 151, 175. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THESE CASES ARE A SEQUEL TO ALLEGHANY CORPORATION V. BRESWICK & CO.,
353 U.S. 151.  THERE, THE DECISION OF THE DISTRICT COURT WAS REVERSED
AND THE CASE WAS REMANDED FOR FURTHER PROCEEDINGS.  NOW, THE DECISION
OF THE DISTRICT COURT ON REMAND IS BEING SUMMARILY REVERSED ON THE
GROUND THAT THE BASIS OF THE DECISION BELOW WAS PRECLUDED BY THE
MANDATE AND OPINION OF THIS COURT.  FOR THE REASONS WHICH FOLLOW, IT IS
MY OPINION THAT PROBABLE JURISDICTION SHOULD BE NOTED IN THESE CASES. 

FIRST.  I DO NOT AGREE THAT THE DECISION BELOW WENT BEYOND THE SCOPE
OF THE OPINION AND MANDATE OF THIS COURT. 

ALLEGHANY CORPORATION ACQUIRED CONTROL OF THE NEW YORK CENTRAL
RAILRAOD CO., THE PARENT OF AN INTEGRATED SYSTEM OF CARRIERS. 
SUBSEQUENT TO THE ACQUISITION OF CONTROL BY ALLEGHANY, TWO OF THE
CORPORATE SUBSIDIARIES OF THE CENTRAL SYSTEM WERE MERGED.  ALLEGHANY IS
BASICALLY SUBJECT TO THE CONTROL OF THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE INVESTMENT COMPANY ACT OF 1940, 54 STAT. 789, 15
U.S.C. SEC. 80A-1 ET SEQ. SECTION 3(C)(9) OF THAT ACT EXEMPTS COMPANIES
WHICH ARE SUBJECT TO REGULATION BY THE INTERSTATE COMMERCE COMMISSION. 
THE QUESTION THUS AROSE AS TO WHETHER ALLEGHANY, ALTHOUGH NOT A CARRIER
AS THAT TERM IS USED IN THE INTERSTATE COMMERCE ACT, WAS SUBJECT TO
REGULATION BY THE INTERSTATE COMMERCE COMMISSION BECAUSE OF THE MERGER
OF THE SUBSIDIARIES OF CENTRAL OF WHICH ALLEGHANY ACQUIRED CONTROL AND
THEREFORE EXEMPT FROM SUPERVISION BY THE SECURITIES AND EXCHANGE
COMMISSION.  THE DETERMINATION OF THE INTERSTATE COMMERCE COMMISSION
THAT ALLEGHANY WAS UNDER ITS JURISDICTION WAS REVERSED BY THE DISTRICT
COURT BUT THIS COURT THEN REVERSED THE DISTRICT COURT.  353 U.S. 151. 
THE SCOPE OF THAT HOLDING IS THE PRESENT ISSUE. 

IN ORDER TO ATTAIN THE STATUS OF A CARRIER THE NONCARRIER MUST
SATISFY THE REQUIREMENTS OF SEC. 5(2)(A) OF THE INTERSTATE COMMERCE
ACT.  THE PERTINENT PORTIONS OF THAT SECTION PROVIDE: 

"IT SHALL BE LAWFUL, WITH THE APPROVAL AND AUTHORIZATION OF THE
COMMISSION  ...  (I)  ...  FOR A PERSON WHICH IS NOT A CARRIER TO
ACQUIRE CONTROL OF TWO OR MORE CARRIERS THROUGH OWNERSHIP OF THEIR
STOCK OR OTHERWISE; OR FOR A PERSON WHICH IS NOT A CARRIER AND WHICH
HAS CONTROL OF ONE OR MORE CARRIERS TO ACQUIRE CONTROL OF ANOTHER
CARRIER THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE  ...  ."  54 STAT.
899, 905, 49 U.S.C. SEC. 5(2)(A). 

THE OPERATION OF THIS SECTION IS MORE EASILY UNDERSTOOD IF THE TWO
CLAUSES PERTAINING TO A PERSON NOT A CARRIER ARE NUMBERED AS FOLLOWS: 

CLAUSE I. "A PERSON WHICH IS NOT A CARRIER TO ACQUIRE CONTROL OF TWO
OR MORE CARRIERS THROUGH OWNERSHIP OF THEIR STOCK OR OTHERWISE." 

CLAUSE II.  "A PERSON WHICH IS NOT A CARRIER AND WHICH HAS CONTROL OF
ONE OR MORE CARRIERS TO ACQUIRE CONTROL OF ANOTHER CARRIER THROUGH
OWNERSHIP OF ITS STOCK OR OTHERWISE." 

IT IS CLEAR THAT A PERSON NOT A CARRIER MUST ACQUIRE AT LEAST TWO
CARRIERS BEFORE BEING SUBJECT TO REGULATION BY THE INTERSTATE COMMERCE
COMMISSION.  THERE MAY BE ONE TRANSACTION ACQUIRING CONTROL OF TWO
CARRIERS UNDER CLAUSE I OR CONTROL MAY BE ACQUIRED CONSECUTIVELY UNDER
CLAUSE II.  WHICHEVER CLAUSE IS APPLICABLE TO THE PARTICULAR FACTS,
SEC. 5(2)(B) REQUIRES THE COMMISSION TO FIND THAT THE PROPOSED
ACQUISITION IS IN THE PUBLIC INTEREST. 

THE DISTRICT COURT HELD IN ITS FIRST DECISION THAT THE INTERSTATE
COMMERCE COMMISSION DID NOT HAVE JURISDICTION UNDER CLAUSE II BECAUSE,
EVEN IF ALLEGHANY HAD CONTROL OF A CARRIER, CENTRAL, IT DID NOT
"ACQUIRE CONTROL OF ANOTHER CARRIER" BY THE DEVICE OF MERGING TWO OF
THE SUBSIDIARIES.  THAT COURT ALSO HELD THAT THERE WAS NO JURISDICTION
IN THE INTERSTATE COMMERCE COMMISSION UNDER CLAUSE I BECAUSE THE
COMMISSION HAD NOT APPROVED OF THE ACQUISITION OF CONTROL OF CENTRAL. 
138 F. SUPP. 123. 

ON APPEAL, THIS COURT REVERSED.  IN DECIDING "THE SUBSTANTIVE ISSUES
IN THE LITIGATION," VIZ., " ...  THE JURISDICTION OF THE COMMISSION
UNDER SECS. 5(2) AND 5(3) OF THE ACT  ...  ," THE COURT HELD THAT THE
ORDER GRANTING ALLEGHANY THE STATUS OF A CARRIER WAS VALID.  ALLEGHANY
CORP. V. BRESWICK & CO., SUPRA, AT 160-161.  THE COURT BASED ITS
DECISION ON CLAUSE II AND REASONED THAT ALLEGHANY CONTROLLED CENTRAL
AND HAD "ACQUIRED" ANOTHER CARRIER BECAUSE OF THE MERGER.  ALL OF THE
REQUIREMENTS OF CLAUSE II OF SEC. 5(2)(A) WERE SATISFIED BECAUSE THE
COMMISSION HAD FOUND THE MERGER TO BE IN THE PUBLIC INTEREST WITHIN THE
MEANING OF SEC. 5(2)(B).  LOUISVILLE & J.B.&R. CO. MERGER, 295 I.C.C.
11, 17. 

BECAUSE THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION COULD
BE SUSTAINED ON THIS GROUND, THE COURT FOUND IT UNNECESSARY TO DECIDE
IF ACQUISITION OF A SYSTEM REQUIRED APPROVAL BECAUSE IT WAS THE
ACQUISITION OF "TWO OR MORE CARRIERS" UNDER CLAUSE I. THE COURT
STATED: 

"THE COMMISSION AND ALLEGHANY CONTEND THAT COMMISSION APPROVAL OF THE
ACQUISITION OF A SINGLE, INTEGRATED SYSTEM IS NOT NECESSARY.  WE NEED
NOT DECIDE THIS QUESTION, HOWEVER, AND INTIMATE NO OPINION ON IT  ...
."  ALLEGHANY CORP. V. BRESWICK & CO., SUPRA, AT 161. 

THE COURT THEN HELD THAT APPROVAL UNDER CLAUSE I WAS NOT NECESSARY TO
SUSTAIN THE JURISDICTION OF THE COMMISSION. 

ALLEGHANY HAD NOT ONLY OBTAINED A STATUS ORDER DECLARING IT TO BE A
CARRIER BUT THE COMMISSION HAD ALSO APPROVED A REQUEST BY ALLEGHANY TO
ISSUE PREFERRED STOCK.  ACCORDINGLY, THE COURT "REMANDED FOR
CONSIDERATION BY THE DISTRICT COURT OF APPELLEES' CLAIM, NOT PREVIOUSLY
DISCUSSED, THAT THE PREFERRED STOCK ISSUE AS APPROVED BY THE COMMISSION
WAS IN VIOLATION OF THE INTERSTATE COMMERCE ACT."  ID., AT 175. 

ON REMAND, THE DISTRICT COURT SUSTAINED THE STOCK ISSUE AGAINST
VARIOUS ATTACKS ON ITS BASIC FAIRNESS BUT ENJOINED THE ORDER APPROVING
THE ISSUE ON THE THEORY THAT THE COMMISSION WAS REQUIRED BY CLAUSE I OF
SEC. 5(2)(A) OF THE ACT TO APPROVE ALLEGHANY'S ACQUISITION OF CONTROL
OF CENTRAL BEFORE THE STOCK ISSUE COULD BE APPROVED.  156 F. SUPP.
227. 

THAT HOLDING WAS BASED ON THE PREMISE THAT SEC. 5(4) OF THE ACT,*
WHICH WAS NOT CONSTRUED IN OUR EARLIER OPINION, MADE IT NECESSARY FOR
THE COMMISSION TO CONSIDER THE LEGALITY OF THE ACQUISITION OF CONTROL
UNDER CLAUSE I, AS WELL AS CLAUSE II, OF SEC. 5(2)(A).  FOR SEC. 5(4)
MAKES IT "UNLAWFUL" WITHOUT COMMISSION APPROVAL FOR ANY PERSON "TO
ENTER INTO ANY TRANSACTION WITHIN THE SCOPE" OF SEC. 5(2)(A) - WHETHER
CLAUSE I OR CLAUSE II.  AND SEC. 5(7) AUTHORIZES THE COMMISSION TO
INVESTIGATE AND DETERMINE WHETHER SEC. 5(4) HAS BEEN VIOLATED. 

*SECTION 5(4) PROVIDES:  "IT SHALL BE UNLAWFUL FOR ANY PERSON, EXCEPT
AS PROVIDED IN PARAGRAPH (2), TO ENTER INTO ANY TRANSACTION WITHIN THE
SCOPE OF SUBPARAGRAPH (A) THEREOF, OR TO ACCOMPLISH OR EFFECTUATE, OR
TO PARTICIPATE IN ACCOMPLISHING OR EFFECTUATING, THE CONTROL OR
MANAGEMENT IN A COMMON INTEREST OF ANY TWO OR MORE CARRIERS, HOWEVER
SUCH RESULT IS ATTAINED, WHETHER DIRECTLY OR INDIRECTLY, BY USE OF
COMMON DIRECTORS, OFFICERS, OR STOCKHOLDERS, A HOLDING OR INVESTMENT
COMPANY OR COMPANIES, A VOTING TRUST OR TRUSTS, OR IN ANY OTHER MANNER
WHATSOEVER.  IT SHALL BE UNLAWFUL TO CONTINUE TO MAINTAIN CONTROL OR
MANAGEMENT ACCOMPLISHED OR EFFECTUATED AFTER THE ENACTMENT OF THIS
AMENDATORY PARAGRAPH AND IN VIOLATION OF ITS PROVISIONS.  AS USED IN
THIS PARAGRAPH AND PARAGRAPH (5), THE WORDS 'CONTROL OR MANAGEMENT'
SHALL BE CONSTRUED TO INCLUDE THE POWER TO EXERCISE CONTROL OR
MANAGEMENT." 

THE HOLDING OF THE DISTRICT COURT ON REMAND DID NOT QUESTION THE
BASIS OF OUR EARLIER HOLDING THAT THE INTERSTATE COMMERCE COMMISSION,
NOT THE SECURITIES AND EXCHANGE COMMISSION, HAD JURISDICTION OF THESE
TRANSACTIONS.  IT ONLY DETERMINED THE ISSUE WHICH WE HELD TO BE OPEN ON
REMAND - WHETHER THE TRANSACTIONS WERE "IN VIOLATION OF THE INTERSTATE
COMMERCE ACT."  353 U.S., AT 175.  THAT ISSUE INCLUDED NOT ONLY THE
LEGALITY OF THE PREFERRED STOCK ISSUE BUT ALSO THE LEGALITY OF THE
ACQUISITION OF CENTRAL BY ALLEGHANY.  IN OTHER WORDS THE FORCE OF SEC.
5(4) AND SEC. 5(7) MAKES CLAUSE I OF SEC. 5(2)(A) APPLICABLE AS WELL AS
CLAUSE II.  THAT AT LEAST IS THE FORCE OF THE ARGUMENT UNDER SEC. 5(4)
AND SEC. 5(7), AND I FOR ONE CANNOT SAY IT IS FRIVOLOUS OR
UNSUBSTANTIAL. 

THIS COURT DECIDED THE CONFLICTING JURISDICTIONAL CLAIMS OF TWO
GOVERNMENTAL AGENCIES AND REMANDED THE CASE WITHOUT PRECLUDING THE
DISTRICT COURT, AS I SEE IT, FROM DECIDING THAT APPROVAL OF THE
ACQUISITION OF A SYSTEM IS REQUIRED UNDER SEC. 5 BEFORE THE PREFERRED
STOCK CAN BE ISSUED.  NO ONE, AT LEAST NO LAWYER OR JUDGE, SHOULD BE
CONFUSED BY THE FACT THAT THIS COURT HELD APPROVAL OF THE ACQUISITION
WAS NOT NECESSARY UNDER THE FACTS OF THIS CASE FOR ONE REASON
(JURISDICTION) AND THE DISTRICT COURT HELD APPROVAL WAS NECESSARY FOR
ANOTHER REASON (COMPLIANCE WITH THE ACT BEFORE THE STOCK COULD BE
ISSUED).  RESPECT FOR THE CONSIDERED AND WELL-REASONED DECISION OF THIS
THREE-JUDGE DISTRICT COURT ALONE SHOULD CONVINCE US THERE HAS BEEN NO
DEFIANCE OF OUR MANDATE. 

SECOND.  EVEN IF THERE BE DOUBTS AS TO THE FORCE OF THIS REASONING,
WE SHOULD HEAR THIS CASE ON THE MERITS.  THE ONLY BASIS ON WHICH IT CAN
BE ARGUED THAT THE MANDATE PRECLUDED THE DECISION IS THAT THIS COURT
NOT ONLY DECIDED THAT THE INTERSTATE COMMERCE COMMISSION HAD
JURISDICTION OVER ALLEGHANY BUT ALSO THAT THE COMMISSION PROPERLY
EXERCISED THAT JURISDICTION IN AUTHORIZING THE ISSUANCE OF THE STOCK
WITHOUT APPROVING THE ACQUISITION OF CONTROL OF CENTRAL.  NO SUCH ISSUE
WAS PRESENTED TO US EARLIER.  THE ONLY WAY IT IS EVEN POSSIBLE TO READ
SUCH A HOLDING FROM THE OPINION AND MANDATE IS BY IMPLICATION, SINCE
NOWHERE IN THE OPINION IS THIS PARTICULAR PROBLEM MENTIONED.  THE ISSUE
IS NOW FORCEFULLY PRESENTED BY THE DECISION OF A LOWER COURT.  BY
REVERSING SUMMARILY ON THIS APPEAL A SUBSTANTIAL QUESTION IS RESOLVED
SUB SILENTIO. 

THE QUESTION WHETHER OR NOT THE ACQUISITION OF A CARRIER SYSTEM IS
THE ACQUISITION OF "TWO OR MORE CARRIERS" WITHIN THE MEANING OF SEC.
5(2)(A)(I) OF THE ACT (CLAUSE I) SEEMS PLAINLY TO BE A SUBSTANTIAL
ONE.  TO REPEAT, THE PRIOR OPINION OF THE COURT IN THIS CASE DID NOT
DECIDE THIS PROBLEM.  YET IT IS ARGUABLE THAT THE ACQUISITION OF A
SYSTEM IS THE ACQUISITION OF TWO OR MORE CARRIERS.  UNTIL THIS CASE, IT
APPARENTLY HAS BEEN THE CONSISTENT VIEW OF THE COMMISSION THAT SUCH AN
ACQUISITION WAS THE ACQUISITION OF TWO OR MORE CARRIERS.  AS DIVISION 4
OF THE COMMISSION STATED:

"WE LONG HAVE RECOGNIZED UNDER SECTION 5, THAT RAILROAD SYSTEMS ARE
COMPRISED OF 2 OR MORE CARRIERS, AND THAT CONTROL OF A SINGLE SYSTEM
MAY NOT LAWFULLY BE EFFECTUATED WITHOUT OUR APPROVAL AND
AUTHORIZATION.  (CITATIONS OMITTED.)  THAT PRINCIPLE IS CONSIDERED
BASIC, ALMOST AS A DEFINITION.  SO MUCH SO, THAT THE QUESTION OF
ACQUISITION OF A CARRIER SYSTEM HAS NEVER BEEN CONTESTED BEFORE THE
COMMISSION, AND AS FAR AS WE KNOW, THERE HAVE BEEN NO COURT DECISIONS
TOUCHING ON THAT ISSUE."  LOUISVILLE & J.B.&R. CO. MERGER, 290 I.C.C.
725, 733. 

THE FULL COMMISSION HELD, HOWEVER, WITHOUT CITATION OF ANY AUTHORITY,
THAT APPROVAL OF THE ACQUISITION OF THE CONTROL OF CENTRAL WAS NOT
REQUIRED BY SEC. 5(2) OF THE ACT.  295 I.C.C. 11, 16-17.  AND THE
COURTS HAVE NOT RESOLVED THAT IMPORTANT QUESTION. 

MOREOVER, ASSUMING COMMISSION APPROVAL IS NECESSARY AT SOME TIME,
MUST IT COME BEFORE THE REFINANCING CAN BE APPROVED?  AS SHOWN, IF THE
TRANSACTION IS WITHIN CLAUSE I, THEN SEC. 5(4) MAKES THE ACQUISITION
ILLEGAL UNTIL COMMISSION APPROVAL IS OBTAINED.  UNDER THOSE
CIRCUMSTANCES THE DISTRICT COURT SAID: 

"THE APPROVAL OF ACQUISITION AND CONTINUED CONTROL IS AN OBVIOUS
FIRST QUESTION IN ANY APPLICATION BY ALLEGHANY BECAUSE UNLESS THE
COMMISSION INTENDS TO APPROVE THIS CONTROL  ...  IT WOULD BE GRANTING A
WRONGDOER SANCTUARY FROM THE INVESTMENT COMPANY ACT; AND IT WOULD BE
AUTHORIZING AND ORDERING ACTS IN AID OF A KNOWN VIOLATION OF THE
INTERSTATE COMMERCE ACT.  THE ULTIMATE CRUCIAL RESULT OF SUCH
TEMPORIZING WOULD BE THAT BY GRANTING SEEMINGLY INNOCUOUS PIECEMEAL
APPLICATIONS, IT WOULD UNOBTRUSIVELY FORECLOSE ITSELF FROM ANY
REALISTIC DETERMINATION OF THE FUNDAMENTAL QUESTION, BECAUSE AFTER THE
PASSAGE OF TIME THE DISRUPTION OF THE CARRIERS IN THE SYSTEM AND OF THE
PUBLIC SERVICE, CAUSED BY DIVESTITURE, WOULD BE SO GREAT THAT IT WOULD
NECESSARILY BE DISCARDED AS A PRACTICAL ALTERNATIVE."  156 F. SUPP.
227, 236-237. 

DID CONGRESS PERMIT SUCH BROKEN-FIELD RUNNING BETWEEN TWO STATUTES,
DESIGNED TO PROTECT THE PUBLIC INTEREST, WITHOUT A FULL INQUIRY BY THE
COMMISSION INTO THE PRIMARY ACQUISITION OF CONTROL OF CENTRAL BY
ALLEGHANY?  AT THE VERY LEAST, THERE SHOULD BE A REASONED DECISION BY
THIS COURT APPROVING THE RULE THAT MAKES THIS POSSIBLE.    I WOULD NOTE
PROBABLE JURISDICTION IN THESE CASES. 
..END :





HONEYCUTT V. WABASH RAILWAY CO. 355 U.S. 424 


NO. 639.  DECIDED JANUARY 27, 1958 - 303 S.W.2D 153, REVERSED AND
REMANDED. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, HELD:
THE PROOFS JUSTIFIED THE CONCLUSION THAT EMPLOYER NEGLIGENCE PLAYED A
PART IN PRODUCING PETITIONER'S INJURY.  THEREFORE, CERTIORARI IS
GRANTED, THE JUDGMENT REVERSING A JUDGMENT FOR PETITIONER IS REVERSED
AND THE CASE IS REMANDED. 

HONEYCUTT V. WABASH RAILWAY CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE ST. LOUIS COURT OF APPEALS
OF MISSOURI. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED, AND THE JUDGMENT OF THE ST.
LOUIS COURT OF APPEALS OF THE STATE OF MISSOURI IS REVERSED AND THE
CASE IS REMANDED FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  WE
HOLD THAT THE PROOFS JUSTIFIED WITH REASON THE JURY'S CONCLUSION THAT
EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING THE PETITIONER'S
INJURY.  FERGUSON V. MOORE-MCCORMACK LINES, INC., 352 U.S. 521; ROGERS
V. MISSOURI PACIFIC R. CO., 352 U.S. 500. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE WHITTAKER JOINS, CONCURS IN THE
RESULT FOR THE REASONS GIVEN IN HIS MEMORANDUM IN GIBSON V. THOMPSON,
355 U.S. 18. 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI IS IMPROVIDENTLY GRANTED. 
..END :


















MICHIGAN WISCONSIN PIPE LINE CO. V. CORPORATION COMMISSION OF OKLAHOMA
355 U.S. 425 


NO. 86.  DECIDED JANUARY 27, 1958* - JUDGMENTS REVERSED ON AUTHORITY OF
CASE CITED. 

*TOGETHER WITH NOS. 111, 112 AND 113, PHILLIPS PETROLEUM CO. V.
CORPORATION COMMISSION OF OKLAHOMA ET AL., ALSO ON APPEALS FROM THE
SAME COURT. 


MICHIGAN WISCONSIN PIPE LINE CO. V. CORPORATION COMMISSION OF OKLAHOMA
ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

PER CURIAM. 

THE JUDGMENTS ARE REVERSED.  CITIES SERVICE GAS CO. V. STATE
CORPORATION COMMISSION OF KANSAS, 355 U.S. 391. 
..END :











NASHVILLE MILK CO. V. CARNATION CO. 355 U.S. 373 


NO. 67.  ARGUED NOVEMBER 21, 1957 - DECIDED JANUARY 20, 1958 - 238 F.2D
86, AFFIRMED. 


A PRIVATE CAUSE OF ACTION UNDER SECS. 4 AND 16 OF THE CLAYTON ACT, AS
AMENDED, DOES NOT LIE FOR SALES AT UNREASONABLE LOW PRICES FOR THE
PURPOSE OF DESTROYING COMPETITION OR ELIMINATING A COMPETITOR, WHICH
ARE FORBIDDEN ONLY BY SEC. 3 OF THE ROBINSON-PATMAN ACT.  PP. 374-382. 

(A)  SECTIONS 4 AND 16 OF THE CLAYTON ACT PERMIT PRIVATE ACTIONS ONLY
FOR INJURIES RESULTING FROM PRACTICES FORBIDDEN BY THE "ANTI-TRUST
LAWS," AS DEFINED IN SEC. 1 OF THAT ACT, AND THAT DEFINITION,
SPECIFYING CERTAIN ACTS NOT INCLUDING THE ROBINSON-PATMAN ACT, IS
EXCLUSIVE.  PP. 375-376. 

(B)  THE ROBINSON-PATMAN ACT SHOWS ON ITS FACE THAT SEC. 3 DOES NOT
AMEND THE CLAYTON ACT, BUT STANDS ON ITS OWN FOOTING AND CARRIES ITS
OWN SANCTIONS, WHICH ARE PENAL IN NATURE.  PP. 376-380. 

(C)  SECTION 3 OF THE ROBINSON-PATMAN ACT CONTAINS ONLY PENAL
SANCTIONS FOR VIOLATION OF ITS PROVISIONS; AND, IN THE ABSENCE OF A
CLEAR EXPRESSION OF CONGRESSIONAL INTENT TO THE CONTRARY, THESE
SANCTIONS SHOULD BE CONSIDERED EXCLUSIVE, RATHER THAN SUPPLEMENTED BY
CIVIL SANCTIONS OF A DISTINCT STATUTE.  P. 377. 

(D)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THERE IS A
PARTIAL OVERLAP BETWEEN THE PRICE-DISCRIMINATION CLAUSES OF SEC. 3 OF
THE ROBINSON-PATMAN ACT AND THOSE OF SEC. 2 OF THE CLAYTON ACT, AS
AMENDED BY SEC. 1 OF THE ROBINSON-PATMAN ACT.  PP. 378-379. 

(E)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE U.S.C.
CODIFIES SEC. 3 OF THE ROBINSON-PATMAN ACT AS BEING AMONG THE
"ANTITRUST LAWS" EMBRACED IN SEC. 1 OF THE CLAYTON ACT, SINCE THERE WAS
A PALPABLE ERROR IN THE CODIFICATION AND THE UNDERLYING STATUTES MUST
PREVAIL.  PP. 379-380. 

(F)  THE CONCLUSION HERE REACHED IS SUPPORTED BY THE LEGISLATIVE
HISTORY OF THE ROBINSON-PATMAN ACT.  PP. 380-382. 

NASHVILLE MILK CO. V. CARNATION COMPANY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER, ALLEGING THAT IT HAD BEEN INJURED BY RESPONDENT'S SALES
AT UNREASONABLY LOW PRICES IN VIOLATION OF SEC. 3 OF THE ROBINSON
PATMAN ACT, (FN1) 49 STAT. 1526, 15 U.S.C.  SEC. 13A, SUED THE
RESPONDENT FOR TREBLE DAMAGES AND INJUNCTIVE RELIEF UNDER SECS. 4 AND
16 OF THE CLAYTON ACT, 38 STAT. 730, AS AMENDED, 15 U.S.C. SECS. 15,
26.  THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND THAT THE
PRIVATE REMEDIES AFFORDED BY SECS. 4 AND 16 OF THE CLAYTON ACT CANNOT
BE BASED ON A VIOLATION OF SEC. 3 OF THE ROBINSON-PATMAN ACT.  THE
COURT OF APPEALS AFFIRMED.  238 F.2D 86.  WE BROUGHT THE CASE HERE, 352
U.S. 1023, TO RESOLVE A CONFLICT BETWEEN THE RULING BELOW AND A
DECISION OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT HOLDING THAT
SUCH A PRIVATE ACTION DOES LIE.  VANCE V. SAFEWAY STORES, INC., 239
F.2D 144. 

KIND (FN2) ONLY FOR INJURIES RESULTING FROM PRACTICES FORBIDDEN BY THE
"ANTITRUST LAWS" AS DEFINED IN SEC. 1 OF THE CLAYTON ACT, (FN3) NAMELY:
(1) THE SHERMAN ACT (ACT OF JULY 2, 1890); (2) PARTS OF THE WILSON
TARIFF ACT (ACT OF AUGUST 27, 1894); (3) THE ACT AMENDING THE WILSON
TARIFF ACT (ACT OF FEBRUARY 12, 1913); AND (4) THE CLAYTON ACT ("THIS
ACT").  IN LIGHT OF THE MUCH OTHER SO-CALLED ANTITRUST LEGISLATION
ENACTED PRIOR AND SUBSEQUENT TO THE CLAYTON ACT, (FN4) IT SEEMS PLAIN
THAT THE RULE EXPRESSIO UNIUS EXCLUSIO ALTERIUS IS APPLICABLE, AND THAT
THE DEFINITION CONTAINED IN SEC. 1 OF THE CLAYTON ACT IS EXCLUSIVE. 
THEREFORE IT IS OF NO MOMENT HERE THAT THE ROBINSON-PATMAN ACT MAY BE
COLLOQUIALLY DESCRIBED AS AN "ANTITRUST" STATUTE.  AND SINCE NO ONE
CLAIMS THAT SEC. 3 OF THE ROBINSON-PATMAN ACT CAN BE REGARDED AS AN
AMENDMENT TO THE SHERMAN ACT OR THE WILSON TARIFF ACT, THE PRECISE
ISSUE BEFORE US IS WHETHER CONGRESS MADE THAT SECTION OF THE ROBINSON
PATMAN ACT A PART OF THE CLAYTON ACT, THUS MAKING IT ONE OF THE
"ANTITRUST LAWS" WHOSE VIOLATION CAN LEAD TO THE PRIVATE CAUSES OF
ACTION AUTHORIZED BY SECS. 4 AND 16.  FOR THE REASONS STATED BELOW WE
HOLD THAT THIS IS NOT THE CASE.  (FN5)

   I. 

THE ROBINSON-PATMAN ACT, CONSISTING OF FOUR SECTIONS, CONVINCINGLY
SHOWS ON ITS FACE THAT SEC. 3 DOES NOT AMEND THE CLAYTON ACT, BUT
STANDS ON ITS OWN FOOTING AND CARRIES ITS OWN SANCTIONS. 

THE FIRST SECTION OF THE ACT DOES EXPRESSLY AMEND SEC. 2 OF THE
CLAYTON ACT, WHICH PROHIBITS CERTAIN KINDS OF PRICE DISCRIMINATIONS,
AND ALLIED ACTIVITIES, ON THE PART OF THOSE ENGAGED IN DOMESTIC OR
TERRITORIAL COMMERCE.  THE FIRST PARAGRAPH OF THIS SECTION READS: 

"THAT SECTION 2 OF THE (CLAYTON ACT)  ...  IS AMENDED TO READ AS
FOLLOWS:" 

     *       *         *         *         * 

THE SECTION THEN SETS FORTH IN HAEC VERBA, AND WITHIN QUOTATION
MARKS, ALL THE PROVISIONS OF SEC. 2, AS MODIFIED BY THE AMENDING
LANGUAGE.  49 STAT. 1526, 15 U.S.C. SEC. 13(A). 

TWO OTHER SECTIONS OF THE ACT ARE NOT IN POINT HERE.  SECTION 2
SIMPLY APPLIES THE AMENDING PROVISIONS OF SEC. 1 TO LITIGATION
COMMENCED UNDER THE FORMER PROVISIONS OF SEC. 2 OF THE CLAYTON ACT, 15
U.S.C. SEC. 21A; AND SEC. 4 DEALS WITH CERTAIN PRACTICES OF COOPERATIVE
ASSOCIATIONS.  15 U.S.C. SEC. 13B. 

THE ONLY OTHER SECTION OF THE ACT IS SEC. 3, WITH WHICH WE ARE
CONCERNED HERE.  IT PROHIBITS THREE KINDS OF TRADE PRACTICES, (A)
GENERAL PRICE DISCRIMINATIONS, (B) GEOGRAPHICAL PRICE DISCRIMINATIONS,
AND (C) SELLING "AT UNREASONABLY LOW PRICES FOR THE PURPOSE OF
DESTROYING COMPETITION OR ELIMINATING A COMPETITOR."  THE IMPORTANT
THING TO NOTE IS THAT THIS SECTION, IN CONTRAST TO SEC. 1 OF THE
ROBINSON-PATMAN ACT, DOES NOT ON ITS FACE AMEND THE CLAYTON ACT. 
FURTHER, SEC. 3 CONTAINS ONLY PENAL SANCTIONS FOR VIOLATION OF ITS
PROVISIONS; IN THE ABSENCE OF A CLEAR EXPRESSION OF CONGRESSIONAL
INTENT TO THE CONTRARY, THESE SANCTIONS SHOULD UNDER FAMILIAR
PRINCIPLES BE CONSIDERED EXCLUSIVE, RATHER THAN SUPPLEMENTED BY CIVIL
SANCTIONS OF A DISTINCT STATUTE.  SEE D.R. WILDER MFG. CO. V. CORN
PRODUCTS REFINING CO., 236 U.S. 165, 174-175. 

THE CONCLUSION THAT ONLY SEC. 1 OF THE ROBINSON-PATMAN ACT CAN BE
REGARDED AS AMENDATORY OF THE CLAYTON ACT IS FURTHER BORNE OUT BY THE
TITLE OF THE WHOLE ROBINSON-PATMAN ACT, WHICH READS (49 STAT. 1526):

                                    "AN ACT. 

"TO AMEND SECTION 2 OF (THE CLAYTON ACT)  ...  AND FOR OTHER
PURPOSES." 

THE "OTHER PURPOSES" CAN ONLY REFER TO THE SECTIONS OF THE ACT OTHER
THAN THE FIRST SECTION. 

BECAUSE THERE IS A PARTIAL OVERLAP BETWEEN THE PRICE-DISCRIMINATION
CLAUSES OF SEC. 3 OF THE ROBINSON-PATMAN ACT (SEE NOTE 1, SUPRA) AND
THOSE OF SEC. 2 OF THE CLAYTON ACT, AS AMENDED BY THE FIRST SECTION OF
THE ROBINSON-PATMAN ACT, (FN6) IT IS ARGUED THAT IT WOULD BE ANOMALOUS
TO ALLOW A PRIVATE CAUSE OF ACTION FOR PRICE DISCRIMINATION IN
VIOLATION OF SEC. 2 OF THE CLAYTON ACT BUT TO DENY A PRIVATE CAUSE OF
ACTION BASED ON A VIOLATION OF SEC. 3 OF THE ROBINSON-PATMAN ACT.  THIS
ARGUMENT, HOWEVER, OVERLOOKS THE FACT THAT SEC. 3 OF THE ROBINSON
PATMAN ACT INCLUDES A PROVISION WHICH IS NOT FOUND IN SEC. 2 OF THE
CLAYTON ACT, NAMELY, SELLING "AT UNREASONABLY LOW PRICES FOR THE
PURPOSE OF DESTROYING COMPETITION OR ELIMINATING A COMPETITOR."  IT IS
NOT AN IDLE CONJECTURE THAT THE POSSIBILITY OF ABUSE INHERENT IN A
PRIVATE CAUSE OF ACTION BASED UPON THIS VAGUE PROVISION (FN7) WAS AMONG
THE FACTORS WHICH LED CONGRESS TO LEAVE THE ENFORCEMENT OF THE
PROVISIONS OF SEC. 3 SOLELY IN THE HANDS OF THE PUBLIC AUTHORITIES,
EXCEPT TO THE EXTENT THAT VIOLATION OF ANY OF ITS PROVISIONS ALSO
CONSTITUTED A VIOLATION OF SEC. 2 OF THE CLAYTON ACT, AND AS SUCH WAS
SUBJECT TO PRIVATE REDRESS UNDER SECS. 4 AND 16 OF THAT ACT.  IN ANY
EVENT, IN THE ABSENCE OF A MUCH CLEARER INDICATION OF CONGRESSIONAL
INTENT THAN IS PRESENT IN THESE STATUTORY PROVISIONS AND THEIR
LEGISLATIVE HISTORY (INFRA, P. 380), WE SHOULD NOT READ THE ROBINSON
PATMAN ACT AS SUBJECTING VIOLATIONS OF THE "UNREASONABLY LOW PRICES"
PROVISION OF SEC. 3 TO THE PRIVATE REMEDIES GIVEN BY THE CLAYTON ACT. 

RESPONDENT CALLS OUR ATTENTION TO THE FACT THAT THE 1940 U.S.C.
CODIFIES SEC. 3 OF THE ROBINSON-PATMAN ACT AS BEING AMONG THE
"ANTITRUST LAWS" EMBRACED IN SEC. 1 OF THE CLAYTON ACT.  HOWEVER,
REFERENCE TO THE 1926 AND 1934 CODES SHOWS THAT THE 1940 CODIFICATION
WAS A PALPABLE ERROR.   (FN8)  MOREOVER, THIS CODIFICATION SEEMS TO US,
FOR THE REASONS SET FORTH IN THIS OPINION, TO BE MANIFESTLY
INCONSISTENT WITH THE ROBINSON-PATMAN ACT, AND IN SUCH CIRCUMSTANCES
CONGRESS HAS SPECIFICALLY PROVIDED THAT THE UNDERLYING STATUTE MUST
PREVAIL.  ACT OF JUNE 30, 1926, SEC. 2(A), VOL. 1 U.S.C. (1952 ED.), P.
LXIII; SEE STEPHAN V. UNITED STATES, 319 U.S. 423, 426. 

                                       II. 

WHAT APPEARS FROM THE FACE OF THE ROBINSON-PATMAN ACT FINDS FULL
SUPPORT IN ITS LEGISLATIVE HISTORY.  THE FAIR CONCLUSIONS TO BE DRAWN
FROM THAT HISTORY ARE (A) THAT SEC. 3 OF THE ROBINSON-PATMAN ACT WAS
NOT INTENDED TO BECOME PART OF THE CLAYTON ACT, AND (B) THAT THE
PRICE DISCRIMINATIONS, TO THE EXTENT THAT THEY WERE COMMON TO BOTH THAT
UNDER THE INDEPENDENT FORCE OF THE CLAYTON ACT, THE PRIVATE REMEDIES
PROVIDED IN SECS. 4 AND 16 OF THE CLAYTON ACT.  IN OTHER WORDS,
ALTHOUGH PRICE DISCRIMINATIONS ARE BOTH CRIMINALLY PUNISHABLE (UNDER
SEC. 3 OF THE ROBINSON-PATMAN ACT) AND SUBJECT TO CIVIL REDRESS (UNDER
SEC. 2 OF THE CLAYTON ACT), SELLING "AT UNREASONABLY LOW PRICES" IS
SUBJECT ONLY TO THE CRIMINAL PENALTIES PROVIDED IN SEC. 3 OF THE
ROBINSON-PATMAN ACT.  (FN9)  THIS IS EVIDENT FROM THE CONFERENCE REPORT
ON THE BILL, WHICH STATES:

         "SECTION 2. 

THE PROVISIONS OF SECTION 2 OF THE HOUSE BILL (FN10) WERE AGREED TO
WITHOUT AMENDMENT BY THE SENATE.  ...  IT APPEARS IN THE CONFERENCE
REPORT AS SECTION 2 OF THE BILL ITSELF, RATHER THAN AS PART OF THE
AMENDMENT TO SECTION 2 OF THE CLAYTON ACT WHICH IS PROVIDED FOR IN

                                   "SECTION 3. 

"SUBSECTION (H) OF THE SENATE AMENDMENT  ...  APPEARS IN THE
CONFERENCE REPORT AS SECTION 3 OF THE BILL ITSELF.  IT CONTAINS THE
OPERATIVE AND PENAL PROVISIONS OF WHAT WAS ORIGINALLY THE BORAH-VAN
NUYS BILL (S.4171).  (FN11)  WHILE THEY OVERLAP IN SOME RESPECTS, THEY
ARE IN NO WAY INCONSISTENT WITH THE PROVISIONS OF THE CLAYTON ACT
AMENDMENT PROVIDED FOR IN SECTION 1.  SECTION 3 AUTHORIZES NOTHING
WHICH THAT AMENDMENT PROHIBITS, AND TAKES NOTHING FROM IT.  ON THE
CONTRARY, WHERE ONLY CIVIL REMEDIES AND LIABILITIES ATTACH TO
VIOLATIONS OF THE AMENDMENT PROVIDED IN SECTION 1, SECTION 3 SETS UP
SPECIAL PROHIBITIONS AS TO THE PARTICULAR OFFENSES THEREIN DESCRIBED
AND ATTACHES TO THEM ALSO THE CRIMINAL PENALTIES THEREIN PROVIDED." 
H.R. REP. NO. 2951, 74TH CONG., 2D SESS., P. 8. 

FURTHER EXCERPTS FROM THE LEGISLATIVE HISTORY, SET FORTH IN THE
MARGIN, (FN12) ALSO BEAR OUT THE CONCLUSIONS STATED AT THE OUTSET OF
THIS PART OF OUR OPINION. 

FINALLY, IT IS NOTEWORTHY, BY WAY OF EPITOMIZING THE CONCLUSIONS TO
BE DRAWN FROM THE LEGISLATIVE HISTORY, THAT IN 1950 REPRESENTATIVE
PATMAN (A COAUTHOR OF THE ROBINSON-PATMAN ACT) STATED IN TESTIMONY
BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON THE JUDICIARY (HEARING
ON H.R. 7905, 81ST CONG., 2D SESS., SERIAL NO. 14, PART 5, P. 48): 

"  ...  IT HAPPENS THAT SECTION 3, THE CRIMINAL SECTION OF THE
ROBINSON-PATMAN ACT, WAS NOT, UNDER THE TERMS OF THAT ACT, MADE AN
AMENDMENT TO THE CLAYTON ACT.  MOREOVER, SECTION 3 OF THE ROBINSON
PATMAN ACT HAS NEVER BEEN ADDED TO THE LIST OF LAWS DESIGNATED AS
'ANTITRUST LAWS' IN SECTION 1 OF THE CLAYTON ACT." 

FOR THE FOREGOING REASONS, WE HOLD THAT A PRIVATE CAUSE OF ACTION
DOES NOT LIE FOR PRACTICES FORBIDDEN ONLY BY SEC. 3 OF THE ROBINSON
PATMAN ACT.  TO THE EXTENT THAT SUCH PRACTICES ALSO CONSTITUTE A
VIOLATION OF SEC. 2 OF THE CLAYTON ACT, AS AMENDED, THEY ARE ACTIONABLE
BY ONE INJURED THEREBY SOLELY UNDER THAT ACT.  SINCE NO SUCH
INFRINGEMENT OF SEC. 2 IS ALLEGED HERE, THE COMPLAINT IN THIS CASE WAS
PROPERLY DISMISSED.  AFFIRMED. 

FN1  SECTION 3 OF THE ROBINSON-PATMAN ACT PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, TO BE A PARTY TO, OR ASSIST IN, ANY
TRANSACTION OF SALE, OR CONTRACT TO SELL, WHICH DISCRIMINATES TO HIS
KNOWLEDGE AGAINST COMPETITORS OF THE PURCHASER, IN THAT, ANY DISCOUNT,
REBATE, ALLOWANCE, OR ADVERTISING SERVICE CHARGE IS GRANTED TO THE
PURCHASER OVER AND ABOVE ANY DISCOUNT, REBATE, ALLOWANCE, OR
ADVERTISING SERVICE CHARGE AVAILABLE AT THE TIME OF SUCH TRANSACTION TO
SAID COMPETITORS IN RESPECT OF A SALE OF GOODS OF LIKE GRADE, QUALITY,
AND QUANTITY; TO SELL, OR CONTRACT TO SELL, GOODS IN ANY PART OF THE
UNITED STATES AT PRICES LOWER THAN THOSE EXACTED BY SAID PERSON
ELSEWHERE IN THE UNITED STATES FOR THE PURPOSE OF DESTROYING
COMPETITION, OR ELIMINATING A COMPETITOR IN SUCH PART OF THE UNITED
STATES; OR, TO SELL, OR CONTRACT TO SELL, GOODS AT UNREASONABLY LOW
PRICES FOR THE PURPOSE OF DESTROYING COMPETITION OR ELIMINATING A
COMPETITOR. 

"ANY PERSON VIOLATING ANY OF THE PROVISIONS OF THIS SECTION SHALL,
UPON CONVICTION THEREOF, BE FINED NOT MORE THAN $5,000 OR IMPRISONED
NOT MORE THAN ONE YEAR, OR BOTH." 

FN2  SECTION 4 OF THE CLAYTON ACT PROVIDES: 

"THAT ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY
REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE THEREFOR IN
ANY DISTRICT COURT OF THE UNITED STATES IN THE DISTRICT IN WHICH THE
DEFENDANT RESIDES OR IS FOUND OR HAS AN AGENT, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY, AND SHALL RECOVER THREEFOLD THE DAMAGES BY HIM
SUSTAINED, AND THE COST OF SUIT, INCLUDING A REASONABLE ATTORNEY'S
FEE." 

INJUNCTIVE RELIEF AGAINST "THREATENED LOSS OR DAMAGE BY A VIOLATION OF
THE ANTITRUST LAWS." 

FN3  38 STAT. 730.  SECTION 1 OF THE CLAYTON ACT PROVIDES: 

"THAT 'ANTITRUST LAWS,' AS USED HEREIN, INCLUDES THE ACT ENTITLED 'AN
ACT TO PROTECT TRADE AND COMMERCE AGAINST UNLAWFUL RESTRAINTS AND
MONOPOLIES,' APPROVED JULY SECOND, EIGHTEEN HUNDRED AND NINETY;
'AN ACT TO REDUCE TAXATION, TO PROVIDE REVENUE FOR THE GOVERNMENT, AND
FOR OTHER PURPOSES,' OF AUGUST TWENTY-SEVENTH, EIGHTEEN HUNDRED AND
NINETY-FOUR; AN ACT ENTITLED 'AN ACT TO REDUCE TAXATION, TO PROVIDE
REVENUE FOR THE GOVERNMENT, AND FOR OTHER PURPOSES,"' APPROVED FEBRUARY
TWELFTH, NINETEEN HUNDRED AND THIRTEEN; AND ALSO THIS ACT." 

FN4  A TOTAL OF 71 STATUTES (INCLUDING THE CLAYTON ACT) ARE SET FORTH
IN A COMPILATION PREPARED BY ELMER A. LEWIS, SUPERINTENDENT OF THE
DOCUMENT ROOM, HOUSE OF REPRESENTATIVES, ENTITLED ANTITRUST LAWS WITH
AMENDMENTS, 1890-1951 (1951).  OF THESE STATUTES, 21 WERE ON THE BOOKS
IN 1914 WHEN THE CLAYTON ACT WAS ENACTED, AND 49 BECAME LAW
THEREAFTER.    FN5  THE ISSUE NOW BEFORE US WAS NOT DECIDED IN BRUCE'S
JUICES, INC., V. AMERICAN CAN CO., 330 U.S. 743, OR MOORE V. MEAD'S
FINE BREAD CO., 348 U.S. 115. 

FN6  15 U.S.C. SEC. 13(A).  SECTION 2 OF THE CLAYTON ACT, AS AMENDED,
PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY  ...  WHERE 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  ...  ." 

WE NEED NOT DECIDE WHETHER VIOLATIONS OF THE PRICE DISCRIMINATION
PROVISIONS OF SEC. 3 OF THE ROBINSON-PATMAN ACT ARE SUBJECT TO ALL OF
THE DEFENSES PROVIDED IN THE CASE OF PRICE DISCRIMINATIONS UNDER THE
CLAYTON ACT. 

FN7  THE DISTRICT COURT INDICATED THAT THE VAGUENESS OF THE
"UNREASONABLY LOW PRICES" PROVISION MIGHT GIVE RISE TO CONSTITUTIONAL
DIFFICULTIES, IF SUCH QUESTIONS HAD TO BE FACED.  CF. UNITED STATES V.
L. COHEN GROCERY CO., 225 U.S. 81; CLINE V. FRINK DAIRY CO., 274 U.S.
445.  SEE COMMENT, 55 MICH. L. REV. 845, 853-856.  BE THAT AS IT MAY,
IT IS WORTHY OF NOTE THAT THE DEPARTMENT OF JUSTICE HAS NEVER, SO FAR
AS WE HAVE BEEN ABLE TO DETERMINE, BROUGHT PROCEEDINGS UNDER THIS
PROVISION OF SEC. 3. 

FN8  IN THE 1926 U.S. CODE, SEC. 1 OF THE CLAYTON ACT WAS CODIFIED IN
PART AS FOLLOWS (15 U.S.C. SEC. 12): 

"'ANTITRUST LAWS,' AS USED IN SECTIONS 12 TO 27, INCLUSIVE, OF THIS
CHAPTER (THE CLAYTON ACT), INCLUDES SECTIONS 1 TO 27, INCLUSIVE, OF
THIS CHAPTER." 

THIS CODIFICATION WAS CORRECT BECAUSE SECS. 1-27 OF TITLE 15 WERE THE
SHERMAN ACT, THE WILSON TARIFF ACT (AS AMENDED) AND THE CLAYTON ACT. 
THE 1934 CODE WAS IDENTICAL AND ALSO CORRECT. 

THE ERROR OCCURRED IN THE 1940 CODIFICATION.  THE ROBINSON-PATMAN ACT
WAS ENACTED IN 1936.  IN THE 1940 CODE THE CODIFICATION OF SEC. 1 OF
THE CLAYTON ACT WAS CHANGED SO THAT IT READ: 

"'ANTITRUST LAWS,' AS USED IN SECTIONS 12, 13, 14-21, 22-27 OF THIS
TITLE, INCLUDES SECTIONS 1-27 INCLUSIVE, OF THIS TITLE." 

15 U.S.C. SECS. 21A, 13A AND 13B, RESPECTIVELY.  THE CODIFIERS
PARTIALLY RECOGNIZED THAT THESE SECTIONS WERE NOT PART OF THE CLAYTON
ACT BY CHANGING THE FIGURES "12 TO 27" IN THE EARLIER CODIFICATIONS OF
15 U.S.C. SEC. 12 TO READ "12, 13, 14-21, 22-27."  BUT THE CODIFIERS
FAILED TO MAKE A CORRESPONDING CHANGE IN THE FIGURES "1 TO 27"
APPEARING IN THE EARLIER CODIFICATIONS.  THE RESULT IS THAT THE TERM
"ANTITRUST LAWS" AS USED IN SEC. 1 OF THE CLAYTON ACT APPEARS IN THE
1940 CODE TO INCLUDE SEC. 3 OF THE ROBINSON-PATMAN ACT, CODIFIED AS
SEC. 13A.  THE 1946 AND 1952 CODIFICATIONS PERPETUATED THIS ERROR. 

FN9  READ IN CONTEXT, THE LEGISLATIVE EXCERPTS QUOTED IN THE
DISSENTING OPINION INDICATE NO MORE THAN THAT. 

FN10 THE HOUSE BILL WAS INTRODUCED BY REPRESENTATIVE PATMAN.  H.R.
8442, 79 CONG. REC.  9081.  SHORTLY THEREAFTER AN IDENTICAL BILL WAS
INTRODUCED IN THE SENATE BY SENATOR ROBINSON.  S. 3154, 79 CONG. REC.
10129. 

FN11  INDEPENDENTLY OF THE ROBINSON BILL, SENATORS BORAH AND VAN NUYS
INTRODUCED SEPARATE PRICE-DISCRIMINATION BILLS.  S. 3670, 80 CONG. REC.
461; S. 3835, 80 CONG. REC. 1194.  THESE BILLS WERE LATER CONSOLIDATED,
S. 4171, 80 CONG. REC. 3204, AND ULTIMATELY THE CONSOLIDATED BILL
BECAME SEC. 3 OF THE ROBINSON-PATMAN ACT. 

FN12  REPRESENTATIVE UTTERBACK, SENIOR HOUSE MANAGER OF THE COMMITTEE
OF CONFERENCE, STATED ON THE FLOOR OF THE HOUSE (80 CONG. REC. 9419): 

"SECTION 3 OF THE BILL SETS ASIDE CERTAIN PRACTICES THEREIN DESCRIBED
AND ATTACHES TO THEIR COMMISSION THE CRIMINAL PENALTIES OF FINE AND
IMPRISONMENT THEREIN PROVIDED.  IT DOES NOT AFFECT THE SCOPE OR
OPERATION OF THE PROHIBITIONS OR LIMITATIONS LAID DOWN BY THE CLAYTON
ACT AMENDMENT PROVIDED FOR IN SECTION 1.  IT AUTHORIZES NOTHING THEREIN
PROHIBITED.  IT DETRACTS NOTHING FROM THEM.  MOST OF THE ACTS WHICH IT
DOES PROHIBIT LIE ALSO WITHIN THE PROHIBITIONS OF THAT AMENDMENT.  IN
THAT SPHERE THIS SECTION MERELY ATTACHES TO THEM ITS CRIMINAL PENALTIES
IN ADDITION TO THE CIVIL LIABILITIES AND REMEDIES ALREADY PROVIDED BY
THE CLAYTON ACT." 

REPRESENTATIVE MILLER, A HOUSE MANAGER OF THE COMMITTEE OF
CONFERENCE, LATER SAID "SECTION 3 IS THE BORAH-VAN NUYS AMENDMENT  ...
.  THE FIRST SECTION OF THE BILL AS REPORTED BACK HERE AMENDS SECTION 2
OF THE CLAYTON ACT."  WHEN ASKED WHETHER SEC. 3 WAS "A PART OF THE SAME
ACT," MR. MILLER REPLIED (80 CONG. REC. 9421): 

"OF COURSE IT IS, BUT IT IS NOT A PART OF THE CLAYTON ACT AS AMENDED
BY SECTION 2 (SECTION 1 OF THE ROBINSON-PATMAN BILL)." 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE MR. JUSTICE BLACK,
AND MR. JUSTICE BRENNAN CONCUR, DISSENTING.* 

*NOTE:  THIS OPINION APPLIES ALSO TO NO. 69, SAFEWAY STORES, INC., V.
VANCE, POST, P. 389. 

THE QUESTION IN THESE CASES IS WHETHER A PERSON INJURED BY A
VIOLATION OF SEC. 3 OF THE ROBINSON-PATMAN ACT, 49 STAT. 1526, 15
U.S.C. SEC. 13A, MAY SUE THE WRONGDOER FOR TREBLE DAMAGES AND AN
INJUNCTION UNDER SECS. 4 AND 16 OF THE CLAYTON ACT, 38 STAT. 730, 15
U.S.C.  SECS. 15, 26.  A DICTUM IN BRUCE'S JUICES, INC. V. AMERICAN CAN
CO., 330 U.S. 743, 750, INDICATED THAT THE ACTION WOULD LIE; AND MOORE
V. MEAD'S FINE BREAD CO., 348 U.S. 115, SUSTAINED A RECOVERY ON THAT
THEORY, THOUGH THE POINT NOW AT ISSUE WAS NEITHER BRIEFED NOR
CONSIDERED. 

FORBIDDEN BY "THE ANTITRUST LAWS."  SECTION 16 ALLOWS RELIEF BY
INJUNCTION FOR VIOLATIONS OF "THE ANTITRUST LAWS."  THE COURT HOLDS
THAT SEC. 3 OF THE ROBINSON-PATMAN ACT IS NOT A PART OF "THE ANTITRUST
LAWS" AS USED IN THE CLAYTON ACT. 

WE DISAGREE.  THE LEGISLATIVE HISTORY IN OUR OPINION SHOWS THAT
CONGRESS INTENDED TO PERMIT PRIVATE ACTIONS TO BE BROUGHT FOR
VIOLATIONS OF SEC. 3 OF THE ROBINSON-PATMAN ACT. 

IT IS TRUE THAT SEC. 1 OF THE CLAYTON ACT DEFINES "ANTITRUST LAWS" AS
INCLUDING, INTER ALIA, THE SHERMAN ACT AND THE CLAYTON ACT AND THAT THE
ROBINSON-PATMAN ACT DID NOT IN TERMS AMEND SEC. 1.  IT IS ALSO TRUE
THAT SEC. 3 OF THE ROBINSON-PATMAN ACT DOES NOT IN TERMS AMEND SEC. 2
OF THE CLAYTON ACT, WHILE SEC. 1 OF THE ROBINSON-PATMAN ACT DOES.  80
CONG.  REC. 9414.  THE LEGISLATIVE HISTORY IS FURTHER CLOUDED BY THE
FACT THAT CERTAIN TYPES OF PRICE DISCRIMINATIONS ARE FORBIDDEN BY BOTH
SEC. 1 (FN1) AND SEC. 3 OF THE ROBINSON-PATMAN ACT.  SUITS FOR DAMAGES
ON ACCOUNT OF THESE VIOLATIONS PLAINLY ARE SUITS FOR DAMAGES UNDER THE
"ANTITRUST LAWS" WITHIN THE MEANING OF THE ENFORCEMENT PROVISIONS OF
THE CLAYTON ACT.  IT IS ONLY WHEN A VIOLATION OF SEC. 3 ALONE IS
INVOLVED THAT THE ISSUE WE ARE CONCERNED WITH HERE ARISES.  YET WHY
ALLOW SUITS FOR TREBLE DAMAGES FOR PRICE DISCRIMINATION UNDER SEC. 2
AND NOT ALLOW THEM WHEN THE DISCRIMINATION PRACTICED IS OF THE KIND
CONDEMNED BY SEC. 3?  THERE IS NO SUGGESTION THAT ANY SUCH LINE WAS
BEING DRAWN BY THE CONGRESS.  THE EMPHASIS ON THE RESTRICTIVE EFFECT OF
SEC. 3 RELATES SIMPLY TO ITS CRIMINAL SANCTIONS, NOT TO THE REMEDIAL
PROVISIONS WITH WHICH WE ARE PRESENTLY CONCERNED.  WHEN THE CONFERENCE
REPORT WAS BEING CONSIDERED IN THE HOUSE, REPRESENTATIVE MILLER, A
HOUSE CONFEREE SUPPORTING THE BILL, MADE THE FOLLOWING STATEMENTS (80
CONG. REC. 9421): 

"THE PENALTY OF TRIPLE DAMAGES IS THE OLD LAW.  IN OTHER WORDS, WE
MADE NO CHANGE IN THAT PARTICULAR PROVISION OF THE CLAYTON ACT. 
VAN NUYS AMENDMENT, AND THAT IS THE CRIMINAL SECTION OF THIS BILL.  THE
FIRST PART OF THE BILL HAS NOTHING TO DO WITH CRIMINAL OFFENSES.  IT
DEALS PRIMARILY, IN MY OPINION, WITH THE AUTHORITY OF THE FEDERAL TRADE
COMMISSION TO REGULATE AND ENFORCE THE PROVISIONS OF SECTION 2 OF THE
CLAYTON ACT, AS AMENDED.  SECTION 3 IN THE BILL IS PLACED IN AN EFFORT
TO MAKE THE CRIMINAL OFFENSE APPLY ONLY TO THAT PARTICULAR SECTION, AND
I BELIEVE THAT IS A REASONABLE CONSTRUCTION, IF YOU WILL LOOK AT THE
BILL. 

"MR. MASSINGALE.  THERE IS NO CRIMINAL OFFENSE INVOLVED FOR ANYTHING
OUTSIDE OF WHAT IS CONTAINED IN THAT SECTION? 

"MR. MILLER.  IN SECTION 3. 

"MR. HANCOCK OF NEW YORK.  IS IT NOT PERFECTLY CLEAR THAT ANY VENDOR
WHO DISCRIMINATES IN PRICE BETWEEN PURCHASERS IS GUILTY OF A CRIME AND
IS ALSO SUBJECT TO TRIPLE DAMAGES TO ANYONE WHO CLAIMS TO BE
AGGRIEVED? 

"MR. MILLER.  THAT IS TRUE, BUT THE CRIMINAL PART IS INCLUDED IN

"MR. HANCOCK OF NEW YORK.  BUT IT IS A PART OF THE SAME ACT? 

"MR. MILLER.  OF COURSE IT IS, BUT IT IS NOT A PART OF THE CLAYTON
ACT AS AMENDED BY SECTION 2.  IT OUGHT TO BE, AS FAR AS THAT IS
CONCERNED, IF A SELLER WILLFULLY DISCRIMINATES." 

YET SEC. 3 AS WELL AS SEC. 2 DECLARES CERTAIN PRICE DISCRIMINATIONS
UNLAWFUL; AND SUITS FOR TREBLE DAMAGES ARE AS APPLICABLE TO SEC. 3
SITUATIONS AS TO THOSE UNDER SEC. 2, IF WORDS ARE TO HAVE THEIR NORMAL
MEANING. 

DURING THE DISCUSSION OF THE CONFERENCE REPORT IN THE SENATE, SENATOR
VANDENBERG STATED: 

"MR. PRESIDENT, I SHOULD LIKE TO ASK THE SENATOR FROM INDIANA ONE OR
TWO QUESTIONS ABOUT THE CONFERENCE REPORT. 

"THE FACT HAS BEEN CALLED TO MY ATTENTION THAT SECTION 3 OF THE BILL,
AS AGREED UPON IN CONFERENCE, MAKES CERTAIN DISCRIMINATIONS PUNISHABLE
BY FINE AND ALSO SUBJECT TO TREBLE DAMAGES, WHILE SIMILAR
DISCRIMINATIONS UNDER SECTION 2(B) WOULD BE SUBJECT TO REBUTTAL BY
SHOWING, FOR INSTANCE, THAT A REDUCED PRICE WAS MADE IN GOOD FAITH TO
MEET AN EQUALLY LOW PRICE OF A COMPETITOR.  IN OTHER WORDS, IT IS
ASSERTED TO ME THAT THE DEFENSE ALLOWED UNDER SECTION 2(B) IS NOT
PERMITTED UNDER SECTION 3, ALTHOUGH THE ACT OR THE OFFENSE WOULD BE THE
SAME."  80 CONG. REC. 9903. 

IN REPLY, SENATOR VAN NUYS, ONE OF THE SENATE CONFEREES, DID NOT
CONTEST THE STATEMENT ABOUT CIVIL AND CRIMINAL PENALTIES, BUT INSTEAD
ADDRESSED HIS REMARKS TO THE CONTENTION CONCERNING THE DEFENSE: 

"I THINK THE SENATOR IS MISTAKEN THERE.  THE PROVISO TO WHICH HE
REFERS IS SIMPLY A RULE OF EVIDENCE RATHER THAN A PART OF THE
SUBSTANTIVE LAW.  IF A PRIMA-FACIE CASE IS MADE AGAINST AN ALLEGED
UNFAIR PRACTICE, THE RESPONDENT MAY REBUT THE PRIMA FACIE CASE BY
SHOWING THAT HIS LOWER PRICES WERE MADE IN GOOD FAITH TO MEET THE
PRICES OF A COMPETITOR.  THAT IS A RULE OF EVIDENCE RATHER THAN
SUBSTANTIVE LAW."  IBID. 

WHILE THOSE WHO FAVORED THE BILL ASSUMED THAT SEC. 3 ALLOWED TREBLE
DAMAGES, THOSE OPPOSED RAILED AGAINST IT ON THAT GROUND.  SECTION 3
DERIVED FROM AN AMENDMENT OFFERED BY SENATORS BORAH AND VAN NUYS AND IT
WAS TO IT THAT THE FIRE WAS DIRECTED.  80 CONG. REC. 9420. 

"MR. HANCOCK OF NEW YORK.  IF A VENDOR IS FOUND GUILTY OF
DISCRIMINATION AS PROVIDED IN THIS BILL, IS HE SUBJECT TO THE AGGRIEVED
PARTY FOR DAMAGES OR HAS HE COMMITTED A CRIME AND SUBJECTED HIMSELF TO
PENALTY? 

"MR. CELLER.  IF HE VIOLATES THE BORAH-VAN NUYS PROVISION OR THE
OTHER PROVISION OF THE BILL HE IS SUBJECT TO PENALTIES OF A CRIMINAL
NATURE AND HAS COMMITTED AN OFFENSE. 

"MR. HANCOCK OF NEW YORK.  WOULD HE ALSO BE LIABLE FOR TRIPLE
DAMAGES? 

"MR. CELLER.  AND HE WOULD ALSO HAVE TO RESPOND IN TRIPLE DAMAGES
UNDER THE PROVISIONS OF THE CLAYTON ACT.  ANYONE AGGRIEVED CAN SUE." 

THE TREBLE-DAMAGE PROVISION OF THE CLAYTON ACT WAS WRITTEN INTO THE
LAW SO AS TO PROVIDE INCENTIVES FOR PRIVATE AS WELL AS GOVERNMENTAL
PATROL OF THE ANTITRUST FIELD.  NOT A WORD IN THE LEGISLATIVE HISTORY
OF THE ROBINSON-PATMAN ACT SUGGESTS THAT THIS SPECIAL REMEDY WAS TO BE
DENIED TO SEC. 3 ACTIONS AND GRANTED TO THOSE UNDER SEC. 2.  THE FAIR
INTENDMENT SEEMS TO HAVE BEEN THAT SEC. 3 WAS TO BE ADDED TO THE BODY
OF "ANTITRUST LAWS."  THE MECHANICAL DEVICE USED WAS AN AMENDMENT TO
ONE SECTION OF THE CLAYTON ACT.  (FN2) 

IN RESOLVING ALL AMBIGUITIES AGAINST THE GRANT OF VITALITY TO SEC. 3,
WE FORGET THAT THE TREBLE-DAMAGE TECHNIQUE FOR LAW ENFORCEMENT WAS
DESIGNED AS AN EFFECTIVE, IF NOT THE MOST EFFECTIVE, METHOD OF
DETERRING VIOLATORS OF THE ACT. 

THE HOUSE COMMITTEE ON THE JUDICIARY IS ENTRUSTED BY CONGRESS WITH
THE PREPARATION AND PUBLICATION OF THE CODE.  1 U.S.C. SEC. 202.  THAT
COMMITTEE CONSTRUED SEC. 3 OF THE ROBINSON-PATMAN ACT AS A PART OF THE
ANTITRUST LAWS, FOR IT GAVE THE SECTION NUMBER 13A IN THE CODE AND
PROVIDED IN SEC. 12 THAT THE TERM "ANTITRUST LAWS" "INCLUDES SECTIONS 1
27 OF THIS TITLE."  THAT CODIFICATION ESTABLISHES "PRIMA FACIE THE LAWS
OF THE UNITED STATES," 1 U.S.C. SEC. 204(A), AND THE COUNTERMANDING
CONSIDERATIONS RELIED ON BY THE COURT DO NOT SEEM SUFFICIENTLY
PERSUASIVE TO US TO REBUT THAT CONSTRUCTION.  IT INDEED ACCORDS WITH
WHAT WE DEEM TO BE THE PREVAILING SENTIMENT IN CONGRESS AT THE TIME
THAT SEC. 3 BECAME AS MUCH A PART OF THE "ANTITRUST LAWS" AS THE OTHER
PROVISIONS OF THE ROBINSON-PATMAN ACT. 

AS THE COURT NOTES, IT APPEARS THAT THE DEPARTMENT OF JUSTICE HAS
NEVER ENFORCED THE CRIMINAL PROVISIONS OF SEC. 3 OF THE ROBINSON-PATMAN
ACT.  BECAUSE OF THE COURT'S HOLDING THAT SEC. 3 IS NOT AVAILABLE IN
CIVIL ACTIONS TO PRIVATE PARTIES, THE STATUTE HAS IN EFFECT BEEN
REPEALED.  IT IS APPARENT THAT THE OPPONENTS OF THE ROBINSON-PATMAN ACT
HAVE EVENTUALLY MANAGED TO ACHIEVE IN THIS COURT WHAT THEY COULD NOT DO
IN CONGRESS.  WE WOULD REVERSE IN NO. 67 AND AFFIRM IN NO. 69. 

FN1  SECTION 1 OF THE ROBINSON-PATMAN ACT AMENDED AND RE-ENACTED SEC.
2 OF THE CLAYTON ACT. 

FN2  IN DETERMINING THE LEGISLATIVE INTENT, RELIANCE CAN HARDLY BE
PLACED ON STATEMENTS OF REPRESENTATIVE PATMAN, MADE IN 1950, SOME 14
YEARS AFTER THE PASSAGE OF THE ROBINSON-PATMAN ACT, THAT SEC. 3 OF THE
ACT DID NOT AMEND THE CLAYTON ACT.  HEARINGS ON H.R. 7905, 81ST CONG.,
2D SESS., SERIAL NO. 14, PART 5, P. 48. 
..END :






















SAFEWAY STORES, INC., V. VANCE 355 U.S. 389 


NO. 69.  ARGUED NOVEMBER 21, 1957 - DECIDED JANUARY 20, 1958 - 239 F.2D
144, JUDGMENT VACATED AND CAUSE REMANDED. 


A PRIVATE ACTION FOR TREBLE DAMAGES UNDER SEC. 4 OF THE CLAYTON ACT,
AS AMENDED, MAY BE MAINTAINED FOR UNLAWFUL PRICE DISCRIMINATIONS
VIOLATIVE OF SEC. 2 OF THE CLAYTON ACT, AS AMENDED, BUT NOT FOR SALES
AT UNREASONABLY LOW PRICES WHICH VIOLATE ONLY SEC. 3 OF THE ROBINSON
PATMAN ACT.  NASHVILLE MILK CO. V. CARNATION CO., ANTE, P. 373.  PP.
389-390. 

SAFEWAY STORES, INC., V. VANCE, TRUSTEE IN BANKRUPTCY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 67, NASHVILLE MILK CO. V. CARNATION
CO., DECIDED TODAY, ANTE, P. 373.  IN THE PRESENT CASE THE COURT OF
APPEALS HAS HELD THAT A PRIVATE ACTION FOR TREBLE DAMAGES* DOES LIE
UNDER SEC. 4 OF THE CLAYTON ACT FOR VIOLATION OF SEC. 3 OF THE ROBINSON
PATMAN ACT.  239 F.2D 144.  BECAUSE OF THE CONFLICT WITH THE DECISION
OF THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN THE NASHVILLE MILK
CO. CASE, 238 F.2D 86, WE GRANTED CERTIORARI.  352 U.S. 1023. 

*THE COMPLAINT DOES NOT ASK FOR INJUNCTIVE RELIEF UNDER SEC. 16 OF
THE CLAYTON ACT. 

THE COMPLAINT IN THIS CASE ALLEGES BOTH SALES "AT UNREASONABLY LOW
PRICES" AND PRICE DISCRIMINATIONS IN VIOLATION OF SEC. 3 OF THE
ROBINSON-PATMAN ACT.  FOR THE REASONS SET FORTH IN OUR NASHVILLE MILK
CO. OPINION, ANTE, P. 373, WE HOLD THAT THE COMPLAINT SHOULD HAVE BEEN
DISMISSED INSOFAR AS IT RESTS ON ALLEGED UNLAWFUL SELLING AT
UNREASONABLY LOW PRICES, AND THAT THE RESPONDENT WAS ENTITLED TO A
TRIAL AS TO THE CHARGES OF UNLAWFUL PRICE DISCRIMINATION.  ACCORDINGLY,
THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.  IT IS SO ORDERED. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, JOINED BY THE CHIEF
JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE BRENNAN, SEE ANTE, P. 383. 
..END :








CITIES SERVICE GAS CO. V. STATE CORPORATION COMMISSION OF KANSAS 355
U.S. 391 


NO. 85.  ARGUED JANUARY 13-14, 1958 - DECIDED JANUARY 20, 1958 - 180
KAN. 454, 304 P.2D 528, REVERSED. 


CITIES SERVICE GAS CO. V. STATE CORPORATION COMMISSION OF KANSAS ET AL. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  PHILLIPS PETROLEUM CO. V. WISCONSIN, 347
U.S. 672; NATURAL GAS PIPELINE CO. V. PANOMA CORPORATION, 349 U.S. 44. 

..END :















ZAVADA V. UNITED STATES 355 U.S. 392 


NO. 65, MISC.  DECIDED JANUARY 20, 1958 - REPORTED BELOW:  245 F.2D
956. 


CERTIORARI GRANTED; JUDGMENT REVERSED; AND CASE REMANDED TO THE
DISTRICT COURT FOR A HEARING. 

ZAVADA V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT IS REVERSED AND THE
CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO FOR A HEARING.  WALKER V. JOHNSTON, 312 U.S. 275;
HOLIDAY V. JOHNSTON, 313 U.S. 342. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN, AND MR. JUSTICE WHITTAKER
DISSENT. 
..END :






KARADZOLE V. ARTUKOVIC 355 U.S. 393 


NO. 462.  DECIDED JANUARY 20, 1958 - REPORTED BELOW:  247 F.2D 198. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED TO THE
DISTRICT COURT FOR DISCHARGE OF THE WRIT OF HABEAS CORPUS AND THE
REMAND OF RESPONDENT TO THE CUSTODY OF THE UNITED STATES MARSHAL, IN
ORDER THAT A HEARING BE HELD UNDER 18 U.S.C. SEC. 3184. 

KARADZOLE, CONSUL GENERAL OF FEDERAL PEOPLE'S REPUBLIC OF YUGOSLAVIA, ET
AL. V. ARTUKOVIC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT IS
VACATED AND THE CASE IS REMANDED TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA FOR THE DISCHARGE OF THE WRIT
OF HABEAS CORPUS AND THE REMAND OF RESPONDENT TO THE CUSTODY OF THE
UNITED STATES MARSHAL IN ORDER THAT A HEARING BE HELD UNDER 18 U.S.C.
SEC. 3184. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :




STRAUSS V. UNIVERSITY OF THE STATE OF NEW YORK 355 U.S. 394 


NO. 610.  DECIDED JANUARY 20, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  2 N.Y.2D 464, 141
N.E.2D 595. 


STRAUSS ET AL. V. UNIVERSITY OF THE STATE OF NEW YORK ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















TAYLOR V. KENTUCKY 355 U.S.394 


NO. 611.  DECIDED JANUARY 20, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  302 S.W.2D 583. 


TAYLOR ET AL. V. KENTUCKY. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















EMRAY REALTY CORP. V. WEAVER 355 U.S. 395 


NO. 631.  DECIDED JANUARY 20, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  2 N.Y.2D 973, 3
N.Y.2D 771, 142 N.E.2D 647, 143 N.E.2D 785. 


EMRAY REALTY CORP. V. WEAVER, STATE RENT ADMINISTRATOR. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















UNITED STATES V. SHARPNACK 355 U.S. 286 


NO. 35.  ARGUED OCTOBER 29, 1957 - DECIDED JANUARY 13, 1958 - REVERSED
AND REMANDED. 


THE ASSIMILATIVE CRIMES ACT OF 1948, 18 U.S.C. SEC. 13, IS
CONSTITUTIONAL INSOFAR AS IT MAKES APPLICABLE TO A FEDERAL ENCLAVE A
SUBSEQUENTLY ENACTED CRIMINAL LAW OF THE STATE IN WHICH THE ENCLAVE IS
SITUATED.  PP. 286-297. 

UNITED STATES V. SHARPNACK. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER THE ASSIMILATIVE CRIMES ACT OF
1948, 18 U.S.C. SEC.  13, IS CONSTITUTIONAL INSOFAR AS IT MAKES
APPLICABLE TO A FEDERAL ENCLAVE A SUBSEQUENTLY ENACTED CRIMINAL LAW OF
THE STATE IN WHICH THE ENCLAVE IS SITUATED.  FOR THE REASONS HEREAFTER
STATED, WE HOLD THAT IT IS CONSTITUTIONAL. 

A FOUR-COUNT INDICTMENT, IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS, CHARGED THE APPELLEE, SHARPNACK, WITH
COMMITTING SEX CRIMES INVOLVING TWO BOYS IN VIOLATION OF 18 U.S.C. SEC.
13, AND ARTS. 535B AND 535C OF VERNON'S TEXAS PENAL CODE, 1952.  THE
OFFENSES WERE CHARGED TO HAVE BEEN COMMITTED IN 1955 AT THE RANDOLPH
AIR FORCE BASE, A FEDERAL ENCLAVE IN TEXAS.  ARTICLES 535B AND 535C HAD
BEEN ENACTED IN 1950 AND, AT THE TIME OF THE COMMISSION OF THE ALLEGED
OFFENSES, WERE IN FORCE THROUGHOUT THE STATE.  ALSO, SINCE 1948, THE
FEDERAL ASSIMILATIVE CRIMES ACT HAS PROVIDED THAT, WITHIN SUCH AN
ENCLAVE, ACTS NOT PUNISHABLE BY ANY ENACTMENT OF CONGRESS ARE
PUNISHABLE BY THE THEN EFFECTIVE LAWS OF THE STATE IN WHICH THE ENCLAVE
IS SITUATED.  (FN1) NEVERTHELESS, UPON MOTION OF SHARPNACK, THE
DISTRICT COURT, IN AN UNREPORTED ORDER, DISMISSED THE INDICTMENT "FOR
THE REASON THAT CONGRESS MAY NOT LEGISLATIVELY ASSIMILATE AND ADOPT
CRIMINAL STATUTES OF A STATE WHICH ARE ENACTED BY THE STATE SUBSEQUENT
TO THE ENACTMENT OF THE FEDERAL ASSIMILATIVE STATUTE."  (FN2)  THE
UNITED STATES APPEALED TO THIS COURT UNDER 18 U.S.C. SEC. 3731, AND WE
NOTED PROBABLE JURISDICTION.  352 U.S. 962. 

THE 1948 ASSIMILATIVE CRIMES ACT WAS ENACTED AS PART OF THE REVISED
CRIMINAL CODE OF THE UNITED STATES AND READS AS FOLLOWS: 

"SEC. 13.  LAWS OF STATES ADOPTED FOR AREAS WITHIN FEDERAL
JURISDICTION. 

"WHOEVER WITHIN OR UPON ANY OF THE PLACES NOW EXISTING OR HEREAFTER
RESERVED OR ACQUIRED AS PROVIDED IN SECTION 7 (FN3) OF THIS TITLE, IS
GUILTY OF ANY ACT OF OMISSION WHICH, ALTHOUGH NOT MADE PUNISHABLE BY
ANY ENACTMENT OF CONGRESS, WOULD BE PUNISHABLE IF COMMITTED OR OMITTED
WITHIN THE JURISDICTION OF THE STATE, TERRITORY, POSSESSION, OR
DISTRICT IN WHICH SUCH PLACE IS SITUATED, BY THE LAWS THEREOF IN FORCE
AT THE TIME OF SUCH ACT OR OMISSION, SHALL BE GUILTY OF A LIKE OFFENSE
AND SUBJECT TO A LIKE PUNISHMENT."  18 U.S.C. 

IN THE ABSENCE OF RESTRICTION IN THE CESSIONS OF THE RESPECTIVE
ENCLAVES TO THE UNITED STATES, THE POWER OF CONGRESS TO EXERCISE
LEGISLATIVE JURISDICTION OVER THEM IS CLEARLY STATED IN ARTICLE I, SEC.
8, CL. 17, AND ARTICLE IV, SEC. 3, CL. 2, OF THE CONSTITUTION.  (FN4)
SEE COLLINS V. YOSEMITE PARK CO., 304 U.S. 518.  THE FIRST FEDERAL
CRIMES ACT, ENACTED IN 1790, 1 STAT. 112, DEFINED A NUMBER OF FEDERAL
CRIMES AND REFERRED TO FEDERAL ENCLAVES.  THE NEED FOR DEALING MORE
EXTENSIVELY WITH CRIMINAL OFFENSES IN THE ENCLAVES WAS EVIDENT, AND ONE
NATURAL SOLUTION WAS TO ADOPT FOR EACH ENCLAVE THE OFFENSES MADE
PUNISHABLE BY THE STATE IN WHICH IT WAS SITUATED.  SEE UNITED STATES V.
PRESS PUBLISHING CO., 219 U.S. 1, 9-13.  INITIALLY THERE WAS ROOM FOR A
DIFFERENCE OF OPINION AS TO THE DESIRABILITY OF DOING THIS BY BLANKET
LEGISLATION, RATHER THAN BY A CODE ENUMERATING AND DEFINING SPECIFIC
OFFENSES APPLICABLE TO THE ENCLAVES.  CONGRESS MADE ITS INITIAL
DECISION ON THIS POINT IN 1825 BY ADOPTING FOR OTHERWISE UNDEFINED
OFFENSES THE POLICY OF GENERAL CONFORMITY TO LOCAL LAW.  ON REPEATED
OCCASIONS THEREAFTER CONGRESS HAS CONFIRMED THAT POLICY BY ENACTING AN
UNBROKEN SERIES OF ASSIMILATIVE CRIMES ACTS.  DURING THE SAME PERIOD,
CONGRESS HAS RECOGNIZED A SLOWLY INCREASING NUMBER OF FEDERAL CRIMES IN
THE FIELD OF MAJOR OFFENSES BY ENACTING FOR THE ENCLAVES SPECIFIC
CRIMINAL STATUTES WHICH HAVE DEFINED THOSE CRIMES AND, TO THAT EXTENT,
HAVE EXCLUDED THE STATE LAWS FROM THAT FIELD.  (FN5) 

IN THE ACT OF 1825, SPONSORED BY DANIEL WEBSTER IN THE HOUSE OF
REPRESENTATIVES, CONGRESS EXPRESSLY ADOPTED THE FUNDAMENTAL POLICY OF
CONFORMITY TO LOCAL LAW.  (FN6)  THAT ACT PROVIDED THE BASIS FROM WHICH
HAS GROWN THE ASSIMILATIVE CRIMES ACT NOW BEFORE US.  CONGRESS THEREBY
MADE IT CLEAR THAT, WITH THE EXCEPTION OF THE ENLARGED LIST OF OFFENSES
SPECIFICALLY PROSCRIBED BY IT, THE FEDERAL OFFENSES IN EACH ENCLAVE
WERE TO BE IDENTICAL WITH THOSE PROSCRIBED BY THE STATE IN WHICH THE
ENCLAVE WAS SITUATED.  THAT ACT MADE NO SPECIFIC REFERENCE TO
SUBSEQUENT REPEALS OR AMENDMENTS BY THE STATE OF ANY ASSIMILATED LAWS. 
IT ALSO MADE NO SPECIFIC REFERENCE TO NEW OFFENSES THAT MIGHT BE ADDED
BY THE STATE AFTER THE ENACTMENT OF THE ASSIMILATIVE CRIMES ACT. 

IN 1831, THERE WAS CERTIFIED BY A CIRCUIT COURT TO THIS COURT IN
UNITED STATES V. PAUL, 6 PET. 141, THE CONCRETE QUESTION WHETHER, UNDER
THE ASSIMILATIVE CRIMES ACT OF 1825, A STATUTE ENACTED IN 1829 BY THE
STATE OF NEW YORK, DEFINING A NEW OFFENSE TO BE KNOWN AS BURGLARY IN
THE THIRD DEGREE, WAS APPLICABLE TO THE FEDERAL ENCLAVE AT WEST POINT. 
THE QUESTION WAS SUBMITTED WITHOUT ARGUMENT AND THIS COURT'S ANSWER IS
REPORTED IN FULL AS FOLLOWS: 

"MR. CHIEF JUSTICE MARSHALL STATED IT TO BE THE OPINION OF THE COURT,
THAT THE THIRD SECTION OF THE ACT OF CONGRESS, ENTITLED 'AN ACT MORE
EFFECTUALLY TO PROVIDE FOR THE PUNISHMENT OF CERTAIN CRIMES AGAINST THE
UNITED STATES, AND FOR OTHER PURPOSES,' PASSED MARCH 3, 1825, IS TO BE
LIMITED TO THE LAWS OF THE SEVERAL STATES IN FORCE AT THE TIME OF ITS
ENACTMENT.  THIS WAS ORDERED TO BE CERTIFIED TO THE CIRCUIT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK."  ID., AT 142. 

THERE IS NOTHING IN THAT ANSWER OR IN THE REPORT OF THE CASE TO SHOW
THAT THE ISSUE WAS DECIDED AS ANYTHING MORE THAN ONE OF STATUTORY
CONSTRUCTION FALLING WITHIN THE DOCTRINE CALLING FOR THE NARROW
CONSTRUCTION OF A PENAL STATUTE.  SO INTERPRETED, THE DECISION DID NOT
REACH THE ISSUE THAT IS BEFORE US.  IT DID, HOWEVER, CARRY A FAIR
IMPLICATION THAT THE ACT OF 1825 WAS CONSTITUTIONAL INSOFAR AS IT MADE
APPLICABLE TO ENCLAVES THE CRIMINAL LAWS IN FORCE IN THE RESPECTIVE
STATES AT THE TIME OF THE ENACTMENT OF THE ASSIMILATIVE CRIMES ACT. 
THIS COURT LATER SO HELD IN FRANKLIN V. UNITED STATES, 216 U.S. 559. 

DUE TO THE LIMITATION OF THE ASSIMILATIVE CRIMES ACT OF 1825 TO STATE
LAWS IN FORCE AT THE TIME OF ITS OWN ENACTMENT, THE ACT GRADUALLY LOST
MUCH OF ITS EFFECTIVENESS IN MAINTAINING CURRENT CONFORMITY WITH STATE
CRIMINAL LAWS.  THIS RESULT HAS BEEN WELL CALLED ONE OF STATIC
CONFORMITY.  TO RENEW SUCH CONFORMITY, CONGRESS HAS ENACTED COMPARABLE
ASSIMILATIVE CRIMES ACTS IN 1866, 14 STAT. 13; IN 1874 AS R.S. SEC.
5391; IN 1898, 30 STAT. 717; IN 1909 AS SEC. 289 OF THE CRIMINAL CODE,
35 STAT. 1145; IN 1933, 48 STAT. 152; IN 1935, 49 STAT.  394; IN 1940,
54 STAT. 234; AND FINALLY IN 1948 IN THE REVISED CRIMINAL CODE AS 18
U.S.C.  SEC. 13. 

THE ABOVE SERIES OF SUBSTANTIAL RE-ENACTMENTS DEMONSTRATES A
CONSISTENT CONGRESSIONAL PURPOSE TO APPLY THE PRINCIPLE OF CONFORMITY
TO STATE CRIMINAL LAWS IN PUNISHING MOST MINOR OFFENSES COMMITTED
WITHIN FEDERAL ENCLAVES.  IN THE RE-ENACTMENTS OF 1866, 1874, 1898 AND
1909, THE INTERPRETATION GIVEN THE ACT OF 1825 BY THE PAUL CASE WAS
MADE EXPLICIT BY EXPRESSLY LIMITING THE ASSIMILATION TO THE STATE LAWS
"NOW IN FORCE," OR AS THE "LAWS OF THE STATE  ...  NOW PROVIDE  ...
."  IN THE ACTS OF 1933, 1935 AND 1940, CONGRESS CONTINUED TO PRESCRIBE
ASSIMILATION TO THE STATE LAWS "IN FORCE" ON SPECIFIED RECENT DATES,
AND THESE THREE RE-ENACTMENTS ALSO MADE THE ASSIMILATION CONDITIONAL
UPON THE STATE LAWS "REMAINING IN FORCE AT THE TIME OF THE DOING OR
OMITTING THE DOING OF SUCH ACT OR THING  ...  ."  (FN7)  THIS HELPED TO
KEEP THE FEDERAL LAW CURRENT WITH THE STATE LAW BY REFLECTING FUTURE
DELETIONS FROM THE STATE LAWS AS SOON AS MADE. 

IN 1948, COINCIDENTALLY WITH ITS REVISION OF THE CRIMINAL CODE OF THE
UNITED STATES, CONGRESS FINALLY ADOPTED THE PRESENT LANGUAGE.  THIS
EXPRESSLY LIMITS THE ASSIMILATION TO ACTS OR OMISSIONS COMMITTED WITHIN
A FEDERAL ENCLAVE AND "NOT MADE PUNISHABLE BY ANY ENACTMENT OF CONGRESS
...  ."  IT FURTHER SPECIFIES THAT "WHOEVER  ...  IS GUILTY OF ANY ACT
OR OMISSION WHICH  ...  WOULD BE PUNISHABLE IF COMMITTED OR OMITTED
WITHIN THE JURISDICTION OF THE STATE  ...  IN WHICH SUCH PLACE IS
SITUATED, BY THE LAWS THEREOF IN FORCE AT THE TIME OF SUCH ACT OR
OMISSION, SHALL BE GUILTY OF LIKE (FEDERAL) OFFENSE AND SUBJECT TO A
LIKE PUNISHMENT."  THIS ASSIMILATION APPLIES WHETHER THE STATE LAWS ARE
ENACTED BEFORE OR AFTER THE FEDERAL ASSIMILATIVE CRIMES ACT AND AT ONCE
REFLECTS EVERY ADDITION, REPEAL OR AMENDMENT OF A STATE LAW.  (FN8)
RECOGNIZING ITS UNDERLYING POLICY OF 123 YEARS' STANDING, CONGRESS HAS
THUS AT LAST PROVIDED THAT WITHIN EACH FEDERAL ENCLAVE, TO THE EXTENT
THAT OFFENSES ARE NOT PRE-EMPTED BY CONGRESSIONAL ENACTMENTS, THERE
SHALL BE COMPLETE CURRENT CONFORMITY WITH THE CRIMINAL LAWS OF THE
RESPECTIVE STATES IN WHICH THE ENCLAVES ARE SITUATED. 

THERE IS NO DOUBT THAT CONGRESS MAY VALIDLY ADOPT A CRIMINAL CODE FOR
EACH FEDERAL ENCLAVE.  IT CERTAINLY MAY DO SO BY DRAFTING NEW LAWS OR
BY COPYING LAWS DEFINING THE CRIMINAL OFFENSES IN FORCE THROUGHOUT THE
STATE IN WHICH THE ENCLAVE IS SITUATED.  AS A PRACTICAL MATTER, IT HAS
TO PROCEED LARGELY ON A WHOLESALE BASIS.  ITS REASON FOR ADOPTING LOCAL
LAWS IS NOT SO MUCH BECAUSE CONGRESS HAS EXAMINED THEM INDIVIDUALLY AS
IT IS BECAUSE THE LAWS ARE ALREADY IN FORCE THROUGHOUT THE STATE IN
WHICH THE ENCLAVE IS SITUATED.  (FN9)  THE BASIC LEGISLATIVE DECISION
MADE BY CONGRESS IS ITS DECISION TO CONFORM THE LAWS IN THE ENCLAVES TO
THE LOCAL LAWS AS TO ALL OFFENSES NOT PUNISHABLE BY ANY ENACTMENT OF
CONGRESS.  WHETHER CONGRESS SETS FORTH THE ASSIMILATED LAWS IN FULL OR
ASSIMILATES THEM BY REFERENCE, THE RESULT IS AS DEFINITE AND AS
ASCERTAINABLE AS ARE THE STATE LAWS THEMSELVES. 

HAVING THE POWER TO ASSIMILATE THE STATE LAWS, CONGRESS OBVIOUSLY HAS
LIKE POWER TO RENEW SUCH ASSIMILATION ANNUALLY OR DAILY IN ORDER TO
KEEP THE LAWS IN THE ENCLAVES CURRENT WITH THOSE IN THE STATES.  THAT
BEING SO, WE CONCLUDE THAT CONGRESS IS WITHIN ITS CONSTITUTIONAL POWERS
AND LEGISLATIVE DISCRETION WHEN, AFTER 123 YEARS OF EXPERIENCE WITH THE
POLICY OF CONFORMITY, IT ENACTS THAT POLICY IN ITS MOST COMPLETE AND
ACCURATE FORM.  RATHER THAN BEING A DELEGATION BY CONGRESS OF ITS
LEGISLATIVE AUTHORITY TO THE STATES, IT IS A DELIBERATE CONTINUING
ADOPTION BY CONGRESS FOR FEDERAL ENCLAVES OF SUCH UNPRE-EMPTED OFFENSES
AND PUNISHMENTS AS SHALL HAVE BEEN ALREADY PUT IN EFFECT BY THE
RESPECTIVE STATES FOR THEIR OWN GOVERNMENT.  CONGRESS RETAINS POWER TO
EXCLUDE A PARTICULAR STATE LAW FROM THE ASSIMILATIVE EFFECT OF THE
ACT.  THIS PROCEDURE IS A PRACTICAL ACCOMMODATION OF THE MECHANICS OF
THE LEGISLATIVE FUNCTIONS OF STATE AND NATION IN THE FIELD OF POLICE
POWER WHERE IT IS ESPECIALLY APPROPRIATE TO MAKE THE FEDERAL REGULATION
OF LOCAL CONDUCT CONFORM TO THAT ALREADY ESTABLISHED BY THE STATE.  CF.
STEWART & CO. V. SADRAKULA, 309 U.S. 94, 100-101. 

EXAMPLES OF USES MADE BY CONGRESS OF FUTURE STATE LEGISLATIVE ACTION
IN CONNECTION WITH THE EXERCISE OF FEDERAL LEGISLATIVE POWER ARE
NUMEROUS.  THE WEBB-KENYON ACT OF MARCH 1, 1913, 37 STAT. 699, 700, 27
U.S.C. SEC. 122, PROHIBITED THE SHIPMENT OF INTOXICATING LIQUORS INTO A
STATE TO BE USED "IN VIOLATION OF ANY LAW OF SUCH STATE  ...  ."  WEST
VIRGINIA SUBSEQUENTLY ENACTED A PROHIBITION LAW.  THIS COURT
NEVERTHELESS UPHELD THE APPLICABILITY OF THE FEDERAL ACT AS IT
ASSIMILATED THAT SUBSEQUENT STATE STATUTE.  CLARK DISTILLING CO. V.
WESTERN MARYLAND R. CO., 242 U.S. 311, 326.  SEE ALSO, KNICKERBOCKER
ICE CO. V. STEWART, 253 U.S. 149, (FN10) 169 (JUSTICE HOLMES' DISSENT),
AND UNITED STATES V. HILL, 248 U.S. 420. 

THE FEDERAL BLACK BASS ACT, AS AMENDED, 61 STAT. 517, 66 STAT. 736,
16 U.S.C. SEC. 852, PROHIBITED THE TRANSPORTATION OF FISH IN INTERSTATE
COMMERCE CONTRARY TO THE LAW OF THE STATE FROM WHICH IT IS
TRANSPORTED.  AND SEE 18 U.S.C. SEC. 43. 

THE JOHNSON ACT, 64 STAT. 1134, 15 U.S.C. SEC. 1172, PROHIBITING THE
TRANSPORTATION OF GAMBLING DEVICES IN INTERSTATE COMMERCE, PROVIDES
THAT A STATE MAY EXEMPT ITSELF FROM THE ACT.  SEE NILVA V. UNITED
STATES, 212 F.2D 115.  (FN11) 

IN THE LESS CLOSELY RELATED FIELD OF CIVIL LAW, THE FEDERAL TORT
CLAIMS ACT, 28 U.S.C.  SEC. 1346 (B), BASES THE LIABILITY OF THE UNITED
STATES ON "THE LAW OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED." 

THE SOCIAL SECURITY ACT, AS AMENDED, 71 STAT. 519, 42 U.S.C.A. (1957,
CUM. ANN. POCKET PT.)  SEC.  416 (H)(1), PROVIDES THAT AN APPLICANT
SHALL BE CONSIDERED A HUSBAND OR WIFE OF AN INSURED INDIVIDUAL "IF THE
COURTS OF THE STATE IN WHICH SUCH INSURED INDIVIDUAL IS DOMICILED AT
THE TIME SUCH APPLICANT FILES AN APPLICATION  ...  WOULD FIND THAT SUCH
APPLICANT AND SUCH INSURED INDIVIDUAL WERE VALIDLY MARRIED AT THE TIME
SUCH APPLICANT FILES SUCH APPLICATION  ...  ." 

THE BANKRUPTCY ACT, 52 STAT. 847, 11 U.S.C. SEC. 24, PROVIDES THAT IT
SHALL NOT AFFECT THE ALLOWANCE OF EXEMPTIONS PRESCRIBED "BY THE STATE
LAWS IN FORCE AT THE TIME OF THE FILING OF THE PETITION  ...  ."  SEE
HANOVER NATIONAL BANK V. MOYSES, 186 U.S. 181, 189-190.   UNDER 63
STAT. 25, 50 U.S.C. APP. SEC. 1894 (I)(1) AND (2), STATES WERE
AUTHORIZED TO FREE CERTAIN LOCAL AREAS FROM FEDERAL RENT CONTROL EITHER
BY PASSING LOCAL RENT CONTROL LEGISLATION OF THEIR OWN, OR BY
DETERMINING THAT FEDERAL RENT CONTROL WAS NO LONGER NECESSARY.  SEE
UNITED STATES V. SHORELINE COOPERATIVE APARTMENTS, INC., 338 U.S. 897,
REVERSING, PER CURIAM 84 F. SUPP. 660. 

THIS COURT ALSO HAS HELD THAT CONGRESS MAY DELEGATE TO LOCAL
LEGISLATIVE BODIES BROAD JURISDICTION OVER TERRITORIES AND CEDED AREAS
PROVIDED CONGRESS RETAINS, AS IT DOES HERE, AMPLE POWER TO REVISE,
ALTER AND REVOKE THE LOCAL LEGISLATION.  DISTRICT OF COLUMBIA V.
THOMPSON CO., 346 U.S. 100, 106, 109-110; CHRISTIANSON V. KING COUNTY,
239 U.S. 356; HORNBUCKLE V. TOOMBS, 18 WALL.  648, 655.  (FN12)

THE APPLICATION OF THE ASSIMILATIVE CRIMES ACT TO SUBSEQUENTLY
ADOPTED STATE LEGISLATION, UNDER THE LIMITATIONS HERE PRESCRIBED, IS A
REASONABLE EXERCISE OF CONGRESSIONAL LEGISLATIVE POWER AND DISCRETION. 
(FN13)  ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND
THE CASE IS REMANDED TO IT FOR FURTHER ACTION CONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  THERE IS NO CONTENTION THAT THE ACTS HERE CHARGED WERE
PUNISHABLE UNDER ANY ENACTMENT OF CONGRESS OTHER THAN BY VIRTUE OF THE
ASSIMILATIVE CRIMES ACT, AND THERE IS NO CONTENTION THAT RANDOLPH AIR
FORCE BASE IS NOT A FEDERAL ENCLAVE SUBJECT TO 18 U.S.C. SEC. 13. 

FN2  THE ORDER ALSO INCLUDED THE FOLLOWING PARAGRAPH: 

IT IS FURTHER THE OPINION OF THIS COURT THAT SECTION 13, TITLE 18,
U.S.C.  ENACTED IN 1948, WHEREIN IT ASSIMILATES AND ADOPTS SAID
CRIMINAL STATUTES ENACTED BY THE STATE SUBSEQUENT TO THE ENACTMENT OF
SAID SECTION, TO-WIT; ARTICLES 535 (B) AND 535 (C) OF THE TEXAS PENAL
STATUTES, ENACTED IN 1950, UPON WHICH ALL FOUR COUNTS OF THIS
INDICTMENT ARE PREDICATED, IS A DELEGATION OF CONGRESS' LEGISLATIVE
AUTHORITY TO THE STATES IN VIOLATION OF THE CONSTITUTION OF THE UNITED
STATES." 

FN3  SECTION 7 CONTAINS THE FOLLOWING PROVISION: 

"THE TERM 'SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF THE
UNITED STATES,' AS USED IN THIS TITLE, INCLUDES: 

     *         *         *         * * 

"(3)  ANY LANDS RESERVED OR ACQUIRED FOR THE USE OF THE UNITED
STATES, AND UNDER THE EXCLUSIVE OR CONCURRENT JURISDICTION THEREOF, OR
ANY PLACE PURCHASED OR OTHERWISE ACQUIRED BY THE UNITED STATES BY
CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR
THE ERECTION OF A FORT, MAGAZINE, ARSENAL, DOCKYARD, OR OTHER NEEDFUL
BUILDING."  18 U.S.C. 

FN4  "ARTICLE.  I. 

     *         *         *         *    * 

"SECTION. 8.  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, AND TO EXERCISE LIKE AUTHORITY
OVER ALL PLACES PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE
STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES,
ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL BUILDINGS  ...  . 

"ARTICLE. IV. 

     *         *         *         *         * 

"SECTION. 3  ...  . 

"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; AND NOTHING IN THIS CONSTITUTION SHALL
BE SO CONSTRUED AS TO PREJUDICE ANY CLAIMS OF THE UNITED STATES, OR OF
ANY PARTICULAR STATE."  U.S. CONST. 

FN5  FOR EXAMPLE, THE FOLLOWING OFFENSES COMMITTED WITHIN FEDERAL
ENCLAVES ARE NOW MADE CRIMINAL BY SUCH ENACTMENTS OF CONGRESS:  ARSON,
18 U.S.C. SEC. 81; ASSAULT, 18 U.S.C.  SEC. 113; MAIMING, 18 U.S.C.
SEC. 114; LARCENY, 18 U.S.C. SEC. 661; RECEIVING STOLEN PROPERTY, 18
U.S.C. SEC. 662; FALSE PRETENSES "UPON ANY WATERS OR VESSEL WITHIN THE
SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES," 18
U.S.C. SEC. 1025; MURDER, 18 U.S.C. SEC. 1111; MANSLAUGHTER, 18 U.S.C.
SEC. 1112; ATTEMPTED MURDER OR MANSLAUGHTER, 18 U.S.C. SEC. 1113;
MALICIOUS MISCHIEF, 18 U.S.C. SEC. 1363; RAPE, 18 U.S.C. SEC. 2031,
CARNAL KNOWLEDGE, 18 U.S.C. SEC. 2032; AND ROBBERY, 18 U.S.C. SEC.
2111. 

FN6  "SEC.  3.  ...  IF ANY OFFENCE SHALL BE COMMITTED IN ANY OF THE
PLACES AFORESAID, THE PUNISHMENT OF WHICH OFFENCE IS NOT SPECIALLY
PROVIDED FOR BY ANY LAW OF THE UNITED STATES, SUCH OFFENCE SHALL, UPON
A CONVICTION IN ANY COURT OF THE UNITED STATES HAVING COGNISANCE
THEREOF, BE LIABLE TO, AND RECEIVE THE SAME PUNISHMENT AS THE LAWS OF
THE STATE IN WHICH SUCH FORT, DOCK-YARD, NAVY-YARD, ARSENAL, ARMORY, OR
MAGAZINE, OR OTHER PLACE, CEDED AS AFORESAID, IS SITUATED, PROVIDE FOR
THE LIKE OFFENCE WHEN COMMITTED WITHIN THE BODY OF ANY COUNTY OF SUCH
STATE."  4 STAT. 115. 

FN7  SEE H.R. REP. NO. 263, 73RD CONG., 1ST SESS.; 77 CONG. REC. 5530
5532, 5920; AND H.R. REP. NO. 1022, 74TH CONG., 1ST SESS. 

FN8  THE REVISER'S NOTE TO SEC. 13 STATES THE SITUATION SIMPLY: 

"THE REVISED SECTION OMITS THE SPECIFICATION OF ANY DATE AS
UNNECESSARY IN A REVISION, WHICH SPEAKS FROM THE DATE OF ITS
ENACTMENT.  SUCH OMISSION WILL NOT ONLY MAKE EFFECTIVE WITHIN FEDERAL
RESERVATIONS, THE LOCAL STATE LAWS IN FORCE ON THE DATE OF THE
ENACTMENT OF THE REVISION, BUT WILL AUTHORIZE THE FEDERAL COURTS TO
APPLY THE SAME MEASURING STICK TO SUCH OFFENSES AS IS APPLIED IN THE
ADJOINING STATE UNDER FUTURE CHANGES OF THE STATE LAW AND WILL MAKE
UNNECESSARY PERIODIC PRO FORMA AMENDMENTS OF THIS SECTION TO KEEP
ABREAST OF CHANGES OF LOCAL LAWS.  IN OTHER WORDS, THE REVISED SECTION
MAKES APPLICABLE TO OFFENSES COMMITTED ON SUCH RESERVATIONS, THE LAW OF
THE PLACE THAT WOULD GOVERN IF THE RESERVATION HAD NOT BEEN CEDED TO
THE UNITED STATES."  18 U.S.C. 

FN9  WE DO NOT NOW PASS UPON THE EFFECT OF THE ASSIMILATIVE CRIMES
ACT WHERE AN ASSIMILATED STATE LAW CONFLICTS WITH A SPECIFIC FEDERAL
CRIMINAL STATUTE, CF. WILLIAMS V. UNITED STATES, 327 U.S. 711, OR WITH
A FEDERAL POLICY.  CF. JOHNSON V. YELLOW CAB CO., 321 U.S. 383; STEWART
& CO. V. SADRAKULA, 309 U.S. 94; HUNT V. UNITED STATES, 278 U.S. 96;
AIR TERMINAL SERVICES, INC. V. RENTZEL, 81 F. SUPP. 611; OKLAHOMA CITY
V. SANDERS, 94 F.2D 323. 

FN10  IN KNICKERBOCKER ICE CO. V. STEWART, SUPRA, THIS COURT VOIDED A
STATUTE WHICH ATTEMPTED TO MAKE STATE WORKMEN'S COMPENSATION LAWS
APPLICABLE TO INJURIES WITHIN THE FEDERAL ADMIRALTY AND MARITIME
JURISDICTION.  THE BASIS OF THAT HOLDING, WHICH WE DO NOT NOW RE
EXAMINE, WAS THAT "THE CONSTITUTION NOT ONLY CONTEMPLATED BUT ACTUALLY
ESTABLISHED" A "HARMONY AND UNIFORMITY" OF LAW THROUGHOUT THE ADMIRALTY
JURISDICTION.  ID., AT 164.  THAT STATUTE WAS VOIDED BECAUSE IT WAS
DESIGNED TO "DESTROY" WHAT WAS CONSIDERED TO BE A CONSTITUTIONALLY
REQUIRED UNIFORMITY.  IBID.  IN CONTRAST, THE STATUTE NOW BEFORE US IS
DESIGNED TO EFFECTUATE A LONG-STANDING CONGRESSIONAL POLICY OF
CONFORMITY WITH LOCAL LAW. 

FN11  THE APPLICABILITY OF CRIMINAL PROVISIONS UNDER THE CONNALLY HOT
OIL ACT, 49 STAT.  30, 15 U.S.C. SEC. 715, DEPENDS UPON THE ADOPTION OF
STATE CONSERVATION LAWS.  SEE HUMBLE OIL & REFINING CO. V. UNITED
STATES, 198 F.2D 753. 

UNDER THE FUGITIVE FROM JUSTICE ACT, 18 U.S.C. SEC. 1073, IT IS
CRIMINAL FOR A PERSON TO TRAVEL IN INTERSTATE COMMERCE TO AVOID
PROSECUTION FOR SPECIFIED CRIMES AS DEFINED "UNDER THE LAWS OF THE
PLACE FROM WHICH HE FLEES  ...  ."  CF. HEMANS V. UNITED STATES, 163
F.2D 228. 

FN12  WAYMAN V. SOUTHARD, 10 WHEAT.  1, 47-50, IS NOT CONTROLLING. 
IN THAT CASE, CHIEF JUSTICE MARSHALL STATED THAT CONGRESS COULD NOT
CONSTITUTIONALLY DELEGATE TO STATE LEGISLATURES THE POWER TO ADOPT
FUTURE "RULES OF PRACTICE" AND "MODES OF PROCEEDING" WHICH WOULD BIND
FEDERAL COURTS.  IN 1872, THAT DECISION WAS MET BY CONGRESS IN THE
ADOPTION OF THE CONFORMITY ACT, 17 STAT. 197, WHICH PRESCRIBED: 

"SEC. 5.  THAT THE PRACTICE, PLEADINGS, AND FORMS AND MODES OF
PROCEEDING IN OTHER THAN EQUITY AND ADMIRALTY CAUSES IN THE CIRCUIT AND
DISTRICT COURTS OF THE UNITED STATES SHALL CONFORM, AS NEAR AS MAY BE,
TO THE PRACTICE, PLEADINGS, AND FORMS AND MODES OF PROCEEDING EXISTING
AT THE TIME IN LIKE CAUSES IN THE COURTS OF RECORD OF THE STATE WITHIN
WHICH SUCH CIRCUIT OR DISTRICT COURTS ARE HELD, ANY RULE OF COURT TO
THE CONTRARY NOTWITHSTANDING  ...  ."  WHILE THIS ACT WAS LATER
RESTRICTED BY INTERPRETATION, THE VALIDITY OF ITS APPLICATION TO FUTURE
STATE PRACTICE WAS GENERALLY ACCEPTED BY THE COURTS.  SEE HART AND
WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (1953), 581-586;
WARREN, FEDERAL PROCESS AND STATE LEGISLATION, 16 VA. L. REV. 421, 557
570 (1930); CLARK AND MOORE, A NEW FEDERAL CIVIL PROCEDURE, 44 YALE L.
J. 387, 401-411 (1935). 

FN13  SEE GENERALLY, NOTE, THE FEDERAL ASSIMILATIVE CRIMES ACT, 70
HARV. L. REV. 685 (1957). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THERE ARE TWO PROVISIONS OF THE CONSTITUTION INVOLVED IN THE PRESENT
CONTROVERSY.  ARTICLE I, SEC. 1 PROVIDES:  "ALL LEGISLATIVE POWERS
HEREIN GRANTED SHALL BE VESTED IN A CONGRESS OF THE UNITED STATES,
WHICH SHALL CONSIST OF A SENATE AND HOUSE OF REPRESENTATIVES."  A
SUPPLEMENTARY PROVISION IS THAT CONTAINED IN ART. IV, SEC. 3, CL. 2:
"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  ...  ." 

IT IS, THEREFORE, THE CONGRESS, AND THE CONGRESS ALONE, THAT HAS THE
POWER TO MAKE RULES GOVERNING FEDERAL ENCLAVES.  I SUPPOSE THERE WOULD
BE NO DOUBT, AT LEAST AFTER YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343
U.S. 579, THAT THIS RULE-MAKING POWER COULD NOT BE EXERCISED BY THE
PRESIDENT, LET ALONE SOME FEDERAL AGENCY SUCH AS THE DEPARTMENT OF THE
INTERIOR.  THE POWER TO MAKE LAWS UNDER WHICH MEN ARE PUNISHED FOR
CRIMES CALLS FOR AS SERIOUS A DELIBERATION AS THE FASHIONING OF RULES
FOR THE SEIZURE OF THE INDUSTRIAL PLANTS INVOLVED IN THE YOUNGSTOWN
CASE.  BOTH CALL FOR THE EXERCISE OF LEGISLATIVE JUDGMENT; AND I DO NOT
SEE HOW THAT REQUIREMENT CAN BE SATISFIED BY DELEGATING THE AUTHORITY
TO THE PRESIDENT, THE DEPARTMENT OF THE INTERIOR, OR, AS IN THIS CASE,
TO THE STATES.  THE COURT HELD IN SCHECHTER POULTRY CORP. V. UNITED
STATES, 295 U.S. 495, THAT THE DETERMINATION OF WHAT CONSTITUTES "FAIR
COMPETITION" MAY NOT BE LEFT WITH THE INDUSTRY AFFECTED, SUBJECT TO
APPROVAL BY THE PRESIDENT.  FOR THE CODES PROMULGATED WOULD HAVE THE
STANDING OF FEDERAL STATUTES.  "BUT CONGRESS CANNOT DELEGATE
LEGISLATIVE POWER TO THE PRESIDENT TO EXERCISE AN UNFETTERED DISCRETION
TO MAKE WHATEVER LAWS HE THINKS MAY BE NEEDED OR ADVISABLE FOR THE
REHABILITATION AND EXPANSION OF TRADE OR INDUSTRY."  ID., AT 537-538. 
THE CODE-MAKING AUTHORITY WAS HELD TO BE AN UNCONSTITUTIONAL DELEGATION
OF LEGISLATIVE POWER.  ID., AT 542.  "THE CONGRESS IS NOT PERMITTED TO
ABDICATE OR TO TRANSFER TO OTHERS THE ESSENTIAL LEGISLATIVE FUNCTIONS
WITH WHICH IT IS  ...  VESTED."  ID., AT 529. 

THE VICE IN THE SCHECHTER CASE WAS NOT THAT THE PRESIDENT WAS THE ONE
WHO RECEIVED THE DELEGATED AUTHORITY, BUT THAT THE CONGRESS HAD
ABDICATED THE LAWMAKING FUNCTION.  THE RESULT SHOULD BE THE SAME
WHETHER THE LAWMAKING AUTHORITY, CONSTITUTED BY CONGRESS, IS THE
PRESIDENT OR A STATE. 

OF COURSE CONGRESS CAN ADOPT AS FEDERAL LAWS THE LAWS OF A STATE; AND
IT HAS OFTEN DONE SO.  EVEN WHEN IT DOES SO WITHOUT ANY ENUMERATION OF
THE LAWS, IT "HAS ACTED AS DEFINITELY AS IF IT HAD REPEATED THE WORDS"
USED BY THE STATE, AS MR. JUSTICE HOLMES SAID IN KNICKERBOCKER ICE CO.
V. STEWART, 253 U.S. 149, 167.  ALSO CONGRESS COULD, I THINK, ADOPT AS
FEDERAL LAW, GOVERNING AN ENCLAVE, THE STATE LAW GOVERNING SPEEDING AS
IT MAY FROM TIME TO TIME BE ENACTED.  THE CONGRESS THERE DETERMINES
WHAT THE BASIC POLICY IS.  LEAVING THE DETAILS TO BE FILLED IN BY A
STATE IS ANALOGOUS TO THE SCHEME OF DELEGATED IMPLEMENTATION OF
CONGRESSIONALLY ADOPTED POLICIES WITH WHICH WE ARE FAMILIAR IN THE
FIELD OF ADMINISTRATIVE LAW.  BUT IT IS CONGRESS THAT MUST DETERMINE
THE POLICY, FOR THAT IS THE ESSENCE OF LAWMAKING.  UNDER THE SCHEME NOW
APPROVED A STATE MAKES SUCH FEDERAL LAW, APPLICABLE TO THE ENCLAVE, AS
IT LIKES, AND THAT LAW BECOMES FEDERAL LAW, FOR THE VIOLATION OF WHICH
THE CITIZEN IS SENT TO PRISON. 

HERE IT IS A SEX CRIME ON WHICH CONGRESS HAS NEVER LEGISLATED. 
TOMORROW IT MAY BE A BLUE LAW, A LAW GOVERNING USURY, OR EVEN A LAW
REQUIRING SEGREGATION OF THE RACES ON BUSES AND IN RESTAURANTS.  IT MAY
BE A LAW THAT COULD NEVER COMMAND A MAJORITY IN THE CONGRESS OR THAT IN
NO SENSE REFLECTED ITS WILL.  IT IS NO ANSWER TO SAY THAT THE CITIZEN
WOULD HAVE A DEFENSE UNDER THE FIFTH AND SIXTH AMENDMENTS TO
UNCONSTITUTIONAL APPLICATIONS OF THESE FEDERAL LAWS OR THE PROCEDURES
UNDER THEM.  HE IS ENTITLED TO THE CONSIDERED JUDGMENT OF CONGRESS
WHETHER THE LAW APPLIED TO HIM FITS THE FEDERAL POLICY.  THAT IS WHAT
FEDERAL LAWMAKING IS.  IT IS THAT POLICY WHICH HAS LED THE COURT
HERETOFORE TO LIMIT THESE ASSIMILATIVE CRIMES ACTS TO THOSE STATE LAWS
IN FORCE AT THE TIME OF ENACTMENT OF THE FEDERAL ACT.  UNITED STATES V.
PAUL, 6 PET. 141.  AND SEE FRANKLIN V. UNITED STATES, 216 U.S. 559, 568
569. 

THERE IS SOME CONVENIENCE IN DOING WHAT THE COURT ALLOWS TODAY. 
CONGRESS IS SAVED THE BOTHER OF ENACTING NEW ASSIMILATIVE CRIMES ACTS
FROM TIME TO TIME.  FEDERAL LAWS GROW LIKE MUSHROOMS WITHOUT CONGRESS
PASSING A BILL.  BUT CONVENIENCE IS NOT MATERIAL TO THE CONSTITUTIONAL
PROBLEM.  WITH ALL DUE DEFERENCE TO THOSE WHO ARE CONVINCED THE OTHER
WAY, I AM FORCED TO CONCLUDE THAT UNDER THIS ASSIMILATIVE CRIMES ACT IT
IS A STATE, NOT THE CONGRESS, THAT IS EXERCISING THE LEGISLATIVE POWER
UNDER ART. I, SEC. 1 OF THE CONSTITUTION AND THAT IS MAKING THE
"NEEDFUL RULES AND REGULATIONS" ENVISIONED BY ART. IV, SEC. 3, CL. 2. 
..END :



CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. V. ILLINOIS 355 U.S.
300 


NO. 12.  ARGUED NOVEMBER 12, 1957 - DECIDED JANUARY 13, 1958* - 146 F.
SUPP. 195, AFFIRMED WITH MODIFICATIONS. 

*TOGETHER WITH NO. 27, UNITED STATES V. ILLINOIS ET AL., AND NO. 28,
INTERSTATE COMMERCE COMMISSION V. ILLINOIS ET AL., ALSO ON APPEALS FROM
THE SAME COURT. 


AFTER THE ILLINOIS COMMERCE COMMISSION HAD DENIED A RAILROAD'S REQUEST
FOR AUTHORITY TO INCREASE INTRASTATE PASSENGER FARES FOR ITS CHICAGO
SUBURBAN COMMUTER SERVICE, CLAIMED AS NECESSARY TO ENABLE IT TO OPERATE
SUCH SERVICE WITHOUT AN OUT-OF-POCKET LOSS, THE RAILROAD PETITIONED THE
INTERSTATE COMMERCE COMMISSION FOR RELIEF UNDER 49 U.S.C. SEC. 13 (4). 
THE LATTER COMMISSION FOUND THAT THE RAILROAD'S REVENUES FROM THIS
PARTICULAR SERVICE FELL SHORT OF MEETING THE OUT-OF-POCKET COST OF SUCH
SERVICE, CONCLUDED THAT THIS CAUSED UNDUE DISCRIMINATION AGAINST
INTERSTATE COMMERCE, AND PRESCRIBED HIGHER INTRASTATE FARES TO PRODUCE
ENOUGH REVENUE TO ELIMINATE THE OUT-OF-POCKET LOSS AND TO ALLOW $77,000
ANNUALLY AS A CONTRIBUTION TO INDIRECT COSTS AND TAXES.  IT ALSO
INCREASED INTERSTATE FARES TO TWO POINTS IN WISCONSIN TO CONFORM TO THE
INCREASED INTRASTATE FARES.  THE DISTRICT COURT SET ASIDE THE
COMMISSION'S ORDER, ENJOINED ITS ENFORCEMENT, AND REMANDED THE CASE TO
THE COMMISSION FOR FURTHER PROCEEDINGS.  HELD:  THE JUDGMENT IS
MODIFIED AND AFFIRMED.  PP. 301-312. 

1.  THE COMMISSION'S FINDINGS WERE NOT ADEQUATE TO SUPPORT ITS ORDER
UNDER SEC. 13 (4).  PP. 306-309. 

(A)  THE DEFICIT FROM THIS SINGLE COMMUTER OPERATION CANNOT FAIRLY BE
ADJUDGED TO WORK AN UNDUE DISCRIMINATION AGAINST THE RAILROAD'S
INTERSTATE OPERATIONS WITHOUT FINDINGS WHICH TAKE INTO ACCOUNT THE
CARRIER'S OTHER INTRASTATE REVENUES FROM ILLINOIS FREIGHT AND PASSENGER
TRAFFIC.  PP. 306-309. 

(B)  THE PORTION OF THE PRESCRIBED INCREASES DESIGNED TO PRODUCE
$77,000 ANNUALLY AS A CONTRIBUTION TO INDIRECT COSTS AND TAXES IS NOT
BASED ON ADEQUATE FINDINGS.  P. 309, N. 8. 

2.  THE INTERSTATE COMMERCE COMMISSION DID NOT ERR IN CONSIDERING
EVIDENCE WHICH WAS NOT PRESENTED BY THE RAILROAD TO THE STATE
COMMISSION.  PP. 310-311. 

3.  THE DISTRICT COURT DID NOT ERR IN SETTING ASIDE SO MUCH OF THE
COMMISSION'S ORDER AS AUTHORIZED AN INCREASE IN THE INTERSTATE FARES TO
THE TWO WISCONSIN POINTS, SINCE THOSE RATES ARE SO INTERWOVEN WITH AND
SO CLOSELY BOUND TO THE INTRASTATE RATES THAT A PROPER DISPOSITION OF
THIS CASE REQUIRES THAT THE COMMISSION RECONSIDER THEM AS PART OF ITS
RECONSIDERATION OF THE ENTIRE CHICAGO SUBURBAN COMMUTER SERVICE.  PP.
311-312. 

CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. V. ILLINOIS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE STATE OF ILLINOIS, THE ILLINOIS COMMERCE COMMISSION, AND THE
MILWAUKEE ROAD COMMUTERS' ASSOCIATION, AGGRIEVED BY AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION FIXING INTRASTATE PASSENGER FARES FOR
THE MILWAUKEE ROAD'S CHICAGO SUBURBAN COMMUTER SERVICE HIGHER THAN THE
FARES AUTHORIZED BY THE STATE COMMISSION, BROUGHT THIS ACTION IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION,
SEEKING RELIEF UNDER 28 U.S.C.  SEC. 1336.  THE ICC ORDER, 297 I.C.C.
353, WAS MADE UNDER 49 U.S.C. SEC. 13 (4), (FN1) WHICH AUTHORIZES THE
ICC TO PRESCRIBE INTRASTATE FARES IF IT FINDS THAT "  ...  ANY SUCH
...  (EXISTING INTRASTATE) FARE  ...  CAUSES  ...  ANY UNDUE,
UNREASONABLE, OR UNJUST DISCRIMINATION AGAINST INTERSTATE  ...
COMMERCE."  THE THREE-JUDGE DISTRICT COURT SET ASIDE THE ORDER,
ENJOINED ITS ENFORCEMENT, (FN2) AND REMANDED THE CASE TO THE ICC FOR
FURTHER PROCEEDINGS.  146 F. SUPP. 195.  THE DISTRICT COURT HELD, INTER
ALIA, THAT THE ICC FAILED TO MAKE FINDINGS APPROPRIATE TO SHOW THAT THE
EXISTING FARES CAUSED UNDUE, UNREASONABLE OR UNJUST DISCRIMINATION
AGAINST INTERSTATE COMMERCE.  THE JUDGMENT WAS APPEALED UNDER 28 U.S.C.
SEC. 1253.  (FN3)  WE NOTED PROBABLE JURISDICTION, 352 U.S. 939. 

THE ICC FOUND THAT THE MILWAUKEE ROAD'S 1954 PASSENGER REVENUES FROM
THE CHICAGO SUBURBAN COMMUTER SERVICE FELL SHORT BY $306,038 OF MEETING
THE OUT-OF-POCKET COST OF THE SERVICE.  THIS WAS THE BASIS OF THE
CONCLUSION THAT THE EXISTING INTRASTATE FARES CAUSED UNDUE
DISCRIMINATION AGAINST INTERSTATE COMMERCE.  TO REMOVE THIS
DISCRIMINATION THE ICC PRESCRIBED FARES TO PRODUCE $383,000 ADDITIONAL
ANNUAL REVENUE, ENOUGH TO ELIMINATE THE DETERMINED OUT-OF-POCKET LOSS
AND TO ALLOW $77,000 ANNUALLY AS A CONTRIBUTION TO INDIRECT COSTS AND
TAXES.  THE QUESTION FOR OUR DECISION IS WHETHER THE DISTRICT COURT
PROPERLY SET ASIDE THE ICC ORDER AS VOID FOR LACK OF FINDINGS NECESSARY
TO SUPPORT AN ORDER UNDER SEC. 13(4). 

THE CHICAGO SUBURBAN COMMUTER SERVICE, EXCEPT FOR A RELATIVELY
INSIGNIFICANT EXCEPTION MENTIONED BELOW, IS ENTIRELY AN INTRASTATE
SERVICE.  IT IS PROVIDED IN TWO DIRECTIONS FROM CHICAGO'S UNION
STATION.  ONE DIRECTION, WHOLLY WITHIN ILLINOIS, IS WEST FROM CHICAGO
SOME 37 ROUTE MILES TO ELGIN, ILLINOIS.  THE OTHER DIRECTION IS NORTH
FROM CHICAGO TO WALWORTH, WISCONSIN; HOWEVER, 62 OF THE 74 ROUTE MILES
IN THAT DIRECTION, AND 24 OF THE 26 STATION STOPS, ARE LOCATED WITHIN
ILLINOIS.  (FN4) TOTAL 1954 PASSENGER REVENUES FROM THIS SERVICE WERE
$1,796,231 FROM 4,869,064 PASSENGERS.  COMMUTERS TRAVELING ON
COMMUTATION AND MULTIPLE-RIDE TICKETS NUMBERED 3,910,526 OF THIS TOTAL
AND ACCOUNTED FOR $1,374,261 OF THE REVENUE. 

COMMUTER FARES OF MOST OF THE RAILROADS PROVIDING COMMUTER SERVICE IN
THE CHICAGO AREA HAVE BEEN DETERMINED, AT LEAST SINCE 1950, IN JOINT
HEARINGS CONDUCTED BY THE ICC AND THE STATE COMMISSION UNDER 49 U.S.C.
SEC. 13(3).  (FN5)  297 I.C.C. 353, 354.  ON JULY 24, 1952, HOWEVER,
THE MILWAUKEE ROAD, INSTEAD OF FILING PETITIONS OF SCHEDULES WITH BOTH
COMMISSIONS, FILED A PETITION WITH THE STATE COMMISSION ONLY
REQUESTING: 

"AUTHORITY TO DISCONTINUE ALL OFF-PEAK CHICAGO SUBURBAN PASSENGER
TRAINS AND CONSOLIDATE CERTAIN PEAK-HOUR TRAINS AND ALSO TO INCREASE
ONE-WAY, ROUND-TRIP AND COMMUTATION FARES TO SUCH EXTENT AS WILL AFTER
TAKING INTO CONSIDERATION THE ECONOMY EFFECTED BY SUCH DISCONTINUANCES
AND CONSOLIDATION OF TRAINS, GIVE RESPONDENT SUFFICIENT REVENUES TO
PERMIT OPERATION OF THE CHICAGO SUBURBAN SERVICE WITHOUT AN OUT-OF
POCKET LOSS."  297 I.C.C., AT 355. 

THE STATE COMMISSION DID NOT ACT ON THE APPLICATION UNTIL 1954. 
MEANWHILE THE MILWAUKEE ROAD CHANGED THE SUBURBAN SERVICE FROM A STEAM
TO A DIESEL OPERATION.  THE STATE COMMISSION FOUND THAT THE COST
SAVINGS EFFECTED BY THIS CHANGE ELIMINATED THE OUT-OF-POCKET LOSS AND,
ON NOVEMBER 10, 1954, DENIED THE APPLICATION.  THE MILWAUKEE ROAD
THEREUPON, IN FEBRUARY 1955, PETITIONED THE ICC FOR RELIEF UNDER SEC.
13(4). 

THIS CASE PRESENTS ONCE AGAIN THE PROBLEM OF ADJUSTING STATE AND
FEDERAL INTERESTS IN THE REGULATION OF INTRASTATE RATES.  THESE
INTRASTATE RATES ARE PRIMARILY THE STATE'S CONCERN AND FEDERAL POWER IS
DOMINANT "ONLY SO FAR AS NECESSARY TO ALTER RATES WHICH INJURIOUSLY
AFFECT INTERSTATE TRANSPORTATION."  NORTH CAROLINA V. UNITED STATES,
325 U.S. 507, 511.  THUS, WHENEVER THIS FEDERAL POWER IS EXERTED WITHIN
WHAT WOULD OTHERWISE BE THE DOMAIN OF STATE POWER, THE JUSTIFICATION
FOR ITS EXERCISE MUST "CLEARLY APPEAR."  FLORIDA V. UNITED STATES, 282
U.S. 194, 212.  THE STATUTE PROVIDES A PRACTICAL METHOD OF MINIMIZING
THE INEVITABLE IRRITATIONS INHERENT IN THE CONFLICT BY REQUIRING THE
ICC TO NOTIFY THE STATE WHENEVER THERE IS BROUGHT BEFORE IT ANY FARE
IMPOSED BY STATE AUTHORITY.  IN ADDITION, THE ICC MAY CONFER WITH THE
STATE REGULATORY AUTHORITY, OR MAY HOLD JOINT HEARINGS WITH THE STATE
AGENCY, WHEN THE STATE'S RATE-MAKING AUTHORITY MAY BE AFFECTED BY THE
ACTION TAKEN BY THE ICC.  49 U.S.C. SEC. 13(3). 

THE OCCASION FOR THE EXERCISE OF THE FEDERAL POWER ASSERTED BY SEC.
13(4) IS THE NECESSITY FOR EFFECTING THE REQUIRED CONTRIBUTION BY
INTRASTATE TRAFFIC OF ITS PROPORTIONATE SHARE OF THE REVENUES NECESSARY
TO PAY A CARRIER'S OPERATING COST AND TO YIELD A FAIR RETURN.  (FN6)
WHEN INTRASTATE REVENUES FALL SHORT OF PRODUCING THEIR FAIR
PROPORTIONATE SHARE OF REQUIRED TOTAL REVENUES, THEY WORK AN UNDUE
DISCRIMINATION AGAINST INTERSTATE COMMERCE, AND THE ICC MAY REMOVE THE
DISCRIMINATION BY FIXING INTRASTATE RATES HIGH ENOUGH REASONABLY TO
PROTECT INTERSTATE COMMERCE.  ILLINOIS COMMERCE COMM'N V. UNITED
STATES, 292 U.S. 474, 479; WISCONSIN R. COMM'N V. CHICAGO, B.&Q.R. CO.,
257 U.S. 563, 586; UNITED STATES V. LOUISIANA, 290 U.S. 70, 75.  IN
DETERMINING WHETHER AN UNDUE REVENUE DISCRIMINATION AGAINST INTERSTATE
COMMERCE IS CAUSED BY INTRASTATE RATES, THE ICC MAY CONSIDER "AMONG
OTHER THINGS, THE NEED, IN THE PUBLIC INTEREST, OF ADEQUATE AND
EFFICIENT RAILWAY TRANSPORTATION SERVICE AND THE NEED OF REVENUES
SUFFICIENT TO SUSTAIN SUCH SERVICE," A STANDARD WRITTEN INTO 49 U.S.C.
SEC. 15A(2).  KING V. UNITED STATES, 344 U.S. 254, 264.  NO FORMAL
REQUIREMENTS ARE PRESCRIBED FOR THE FINDINGS TO BE MADE BY THE ICC
UNDER SEC. 13(4).  UNITED STATES V.  LOUISIANA, 290 U.S. 70, 80. 
REASONABLE DETERMINATIONS SUFFICE.  FLORIDA V. UNITED STATES, 292 U.S.
1, 9.  BUT THE JUSTIFICATION FOR THE EXERCISE OF THIS EXCEPTIONAL
FEDERAL POWER TO INTERFERE WITH INTRASTATE RATES MUST BE MADE
DEFINITELY AND CLEARLY APPARENT.  FLORIDA V. UNITED STATES, 282 U.S.
194, 212. 

IN THE INSTANT CASE THE ICC INTERFERED WITH SUBURBAN COMMUTER RATES -
INTRASTATE RATES PECULIARLY LOCALIZED IN IMPACT UPON THE CHICAGO
SUBURBAN COMMUNITY.  IN SUBSTANCE, THE ICC FOUND THAT BECAUSE THIS
SINGLE SEGMENT OF THE MILWAUKEE ROAD'S INTRASTATE OPERATIONS IN
ILLINOIS DID NOT MEET OUT-OF-POCKET COSTS, THERE WAS AN UNDUE
DISCRIMINATION AGAINST THE ROAD'S INTERSTATE OPERATIONS, WITHOUT REGARD
TO THE CONTRIBUTION OF OTHER ILLINOIS INTRASTATE REVENUES, FREIGHT OR
PASSENGER, CONCERNING WHICH BOTH THE RECORD AND THE FINDINGS ARE
ENTIRELY SILENT. 

WE THINK THIS IS A CASE WHERE THE ICC CANNOT BE SUSTAINED IN ALTERING
INTRASTATE RATES MERELY BECAUSE THE CHICAGO SUBURBAN COMMUTER TRAFFIC -
OF THE MILWAUKEE ROAD'S TOTAL INTRASTATE ILLINOIS TRAFFIC, FREIGHT AND
PASSENGER - IS NOT REMUNERATIVE OR REASONABLY COMPENSATORY.  CF.
FLORDIA V. UNITED STATES, 282 U.S. 194; NORTH CAROLINA V. UNITED
STATES, 325 U.S. 507.  THE LIMITED AND EXCEPTIONAL FEDERAL POWER
ASSERTED BY SEC. 13(4) OVER INTRASTATE RATES MUST BE EXERCISED WITH
"SCRUPULOUS REGARD FOR MAINTAINING THE (PRIMARY) POWER OF THE STATE IN
THIS FIELD."  NORTH CAROLINA V. UNITED STATES, 325 U.S. 507, 511.  IT
IS OF COURSE DESIRABLE THAT EACH PARTICULAR INTRASTATE SERVICE SHOULD
AS NEARLY AS MAY BE PAY ITS OWN WAY AND RETURN A PROFIT - BUT THE STATE
COMMISSION, NOT THE ICC, HAS THE RESPONSIBILITY IN THE FIRST INSTANCE
TO ACHIEVE THAT DESIRED END.  PASSENGER DEFICITS HAVE BECOME CHRONIC IN
THE RAILROAD INDUSTRY AND IT HAS BECOME NECESSARY TO MAKE UP THESE
DEFICITS FROM MORE REMUNERATIVE SERVICES.  THE ICC HAS RECIGNIZED THIS
PRACTICAL REALITY OF TODAY'S RAILROADING AND HAS CHANGED ITS RATE
FIXING POLICY SO THAT IF INTERSTATE PASSENGER SERVICE INEVITABLY AND
INESCAPABLY CANNOT BEAR ITS DIRECT COSTS AND ITS SHARE OF JOINT OR
INDIRECT COSTS, THE ICC FEELS COMPELLED IN A GENERAL RATE CASE TO TAKE
THE PASSENGER DEFICIT INTO ACCOUNT IN THE ADJUSTMENT OF INTERSTATE
FREIGHT RATES AND CHARGES.  KING V. UNITED STATES, 344 U.S. 254, 261. 
AN EQUALLY BROAD POWER MUST BE CONCEDED TO A STATE COMMISSION IN THE
EXERCISE OF ITS PRIMARY AUTHORITY TO PRESCRIBE AND ADJUST INTRASTATE
RATES. 

IN VIEW OF THAT POLICY, WE DO NOT THINK THAT THE DEFICIT FROM THIS
SINGLE COMMUTER OPERATION CAN FAIRLY BE ADJUDGED TO WORK AN UNDUE
DISCRIMINATION AGAINST THE MILWAUKEE ROAD'S INTERSTATE OPERATIONS
WITHOUT FINDINGS WHICH TAKE THE DEFICIT INTO ACCOUNT IN THE LIGHT OF
THE CARRIER'S OTHER INTRASTATE REVENUES FROM ILLINOIS TRAFFIC, FREIGHT
AND PASSENGER.  THE BASIC OBJECTIVE OF SEC. 13(4), APPLIED IN THE LIGHT
OF SEC. 15A(2) TO THIS CASE, IS TO PREVENT A DISCRIMINATION AGAINST THE
CARRIER'S INTERSTATE TRAFFIC WHICH WOULD RESULT FROM SADDLING THAT
TRAFFIC WITH AN UNDUE BURDEN OF PROVIDING INTRASTATE SERVICES.  A FAIR
PICTURE OF THE INTRASTATE OPERATION, AND WHETHER THE INTRASTATE TRAFFIC
UNDULY DISCRIMINATES AGAINST INTERSTATE TRAFFIC, IS NOT SHOWN, IN THIS
CASE, BY LIMITING CONSIDERATION TO THE PARTICULAR COMMUTER SERVICE IN
DISREGARD OF THE REVENUE CONTRIBUTED BY THE OTHER INTRASTATE SERVICES. 
(FN7) 

A REQUIREMENT FOR FINDINGS WHICH REFLECT THE COMMUTER SERVICE DEFICIT
IN THE TOTALITY OF INTERSTATE REVENUES IS NOT A DEPARTURE FROM PREVIOUS
HOLDINGS OF THIS COURT.  THE PRECISE SITUATION PRESENTED BY THIS CASE
HAS NOT HERETOFORE BEEN CONSIDERED BY THE COURT.  THE PREVIOUS CASES
INVOLVING COMMISSION ORDERS INCREASING INTRASTATE RATES IN THE INTEREST
OF THE CARRIER'S REVENUE (AS DISTINGUISHED FROM CASES OF DISCRIMINATION
AGAINST PARTICULAR PERSONS AND LOCALITIES, SEE HOUSTON, E.&W.T.R. CO.
V. UNITED STATES, 234 U.S. 342) INVOLVED STATEWIDE ORDERS RAISING
INTRASTATE RATES.  IN PASSENGER FARE CASES, ICC ORDERS WERE SUSTAINED
ON A SHOWING THAT FOLLOWING GENERAL INCREASES IN INTERSTATE PASSENGER
RATES, STATE COMMISSIONS REFUSED TO INCREASE INTRASTATE PASSENGER RATES
TO THE SAME LEVEL FOR WHAT WERE ESSENTIALLY IDENTICAL SERVICES. 
WISCONSIN R. COMM'N V. CHICAGO, B.&Q.R. CO., 257 U.S. 563; NEW YORK V.
UNITED STATES, 257 U.S. 591.  IT WAS HELD THAT THE STATE PASSENGER
RATES IN THAT CIRCUMSTANCE WERE NOT PRODUCING THEIR FAIR PROPORTIONATE
SHARE.  IN NORTH CAROLINA V. UNITED STATES, 325 U.S. 507, ALSO A
PASSENGER FARE CASE, THE ICC ORDER WAS NOT SUSTAINED BECAUSE THE
FINDINGS WERE HELD TO BE INSUFFICIENT.  NONPASSENGER FARE CASES IN
WHICH ICC ORDERS RAISING INTRASTATE RATES WERE SUSTAINED WERE UNITED
STATES V. LOUISIANA, 290 U.S. 70; FLORIDA V. UNITED STATES, 292 U.S. 1;
AND KING V. UNITED STATES, 344 U.S. 254.  THE ORDER WAS NOT SUSTAINED,
HOWEVER, IN AN EARLIER FLORIDA CASE, FLORIDA V. UNITED STATES, 282 U.S.
194.  THE ONLY CASE OSTENSIBLY BASED UPON A REVENUE DISCRIMINATION
CAUSED BY A LOCAL OPERATION WAS NOT A PASSENGER FARE CASE.  ILLINOIS
COMMERCE COMM'N V. UNITED STATES, 292 U.S. 474.  BASICALLY THE
DISCRIMINATION THERE COMPLAINED OF, HOWEVER, WAS A PERSONS-AND-LOCALITY
DISCRIMINATION AGAINST INTERSTATE SHIPPERS. 

IT SHOULD ALSO BE NOTED THAT IN KING V. UNITED STATES, SUPRA, THE
COURT ADVERTED TO THOSE VERY FACTORS AMONG THE ICC'S FINDINGS WHOSE
ABSENCE IN THE PRESENT CASE WE FIND TO BE A FATAL DEFECT.  THE COURT
THERE EMPHASIZED THE ICC FINDING THAT THE ENTIRE INTRASTATE TRAFFIC,
FREIGHT AND PASSENGER, CONSTITUTED A REVENUE DRAIN UPON THE CARRIER'S
REVENUES FROM INTERSTATE TRAFFIC.  SINCE THE COMMISSION HAS NOT IN THIS
CASE FOUND WHETHER OR NOT THE COMMUTER RATES, VIEWED IN THE LIGHT OF
THE ILLINOIS INTRASTATE OPERATION AS A WHOLE, CONSTITUTE AN UNDUE
REVENUE DISCRIMINATION AGAINST THE MILWAUKEE ROAD'S INTERSTATE
OPERATIONS, THE JUDGMENT OF THE DISTRICT COURT IN REMANDING THE CASE TO
THE COMMISSION FOR FURTHER CONSIDERATION MUST BE AFFIRMED.  (FN8) 

THE DISTRICT COURT ALSO HELD THAT THE ICC ERRED IN CONSIDERING
EVIDENCE WHICH WAS NOT PRESENTED BY THE MILWAUKEE ROAD TO THE STATE
COMMISSION.  THE EVIDENCE IN QUESTION CONCERNED CERTAIN DEPRECIATION
AND MAINTENANCE-OF-WAY EXPENSES TOTALING $258,172, WHICH THE ICC TOOK
INTO ACCOUNT IN COMPUTING OUT-OF-POCKET COSTS.  THE DISTRICT COURT
SAID: 

"IF DIFFERENT EVIDENCE IS TO BE OFFERED OR A DIFFERENT BASIS OF FARES
IS TO BE URGED BEFORE THE INTERSTATE COMMISSION, THE STATE COMMISSION
SHOULD HAVE BEEN GIVEN A CHANCE TO FIX FARES ON THE SAME EVIDENCE AND
THE SAME BASIS.           *         *         *         *         * 

"WHERE A RAILROAD SEEKS THE FIXING OF HIGHER INTRASTATE RATES BY THE
INTERSTATE COMMISSION AFTER FAILING IN SUCH ENDEAVOR BEFORE A STATE
COMMISSION, SEC. 13(4) DOES NOT CONTEMPLATE THAT THE STATE COMMISSION
IS TO BE CONSIDERED ONLY A WAY STATION IN A JOURNEY TO THE INTERSTATE
COMMISSION."  146 F. SUPP. 195, 201, 202. 

THIS HOLDING IN EFFECT RESTRICTS THE ICC IN DECISIONS UNDER SEC. 13(4)
TO THE IDENTICAL EVIDENCE PRESENTED BY THE RAILROAD TO THE STATE
COMMISSION.  SO TO RESTRICT THE ICC'S CONSIDERATION AS TO WHETHER
INTRASTATE RATES WORK AN UNDUE DISCRIMINATION AGAINST INTERSTATE
COMMERCE MIGHT SERIOUSLY INTERFERE WITH THE COMMISSION'S DUTY TO REMOVE
THE DISCRIMINATION TO PROTECT THE EXCLUSIVE FEDERAL DOMAIN OF
INTERSTATE COMMERCE.  IT IS CONTRARY TO THIS COURT'S HOLDING IN FLORIDA
V. UNITED STATES, 282 U.S. 194.  THERE THE STATE COMMISSION HAD NOT
AFFIRMATIVELY PRESCRIBED THE EXISTING RATES WHICH THE ICC INCREASED. 
IT WAS URGED THAT UNTIL THE STATE COMMISSION DID SO SEC. 13(4) GRANTED
NO POWER TO THE ICC TO PRESCRIBE HIGHER RATES.  THIS COURT REJECTED
THIS CONTENTION, SAYING "TO HOLD  ... THAT THERE CAN BE NO ADJUSTMENT
OF INTRASTATE RATES BY THE INTERSTATE COMMERCE COMMISSION SO FAR AS MAY
BE NEEDED TO PROTECT INTERSTATE COMMERCE UNTIL THE STATE ITSELF HAS
FIRST 'SAT IN JUDGMENT ON THE ISSUE OF THE LAWFULNESS OF THOSE
INTRASTATE RATES' WOULD BE TO IMPOSE A LIMITATION NOT REQUIRED BY THE
TERMS OF THE STATUTE AND REPUGNANT TO THE GRANT OF AUTHORITY."  ID., AT
210. 

IN THIS CASE THE ICC MIGHT MORE WISELY HAVE ARRANGED FOR JOINT
HEARINGS UNDER SEC. 13(3) OR HAVE DEFERRED ACTION PENDING AN
OPPORTUNITY FOR THE STATE COMMISSION TO CONSIDER THIS EVIDENCE. 
HOWEVER, NOTHING IN THE STATUTE COMPELS EITHER COURSE OR DENIES THE ICC
THE POWER TO DETERMINE THE QUESTION PRESENTED BY THE RAILROAD'S
PETITION, WHATEVER MAY HAVE BEEN THE EVIDENCE PRESENTED BEFORE THE
STATE COMMISSION.  SEE NORTH CAROLINA V. UNITED STATES, 128 F. SUPP.
718, AFFIRMED, 350 U.S.805; ILLINOIS V. UNITED STATES, 101 F. SUPP.
36, 47, AFFIRMED, 342 U.S. 930. 

FINALLY, IT IS ARGUED THAT THE DISTRICT COURT ERRED IN SETTING ASIDE
SO MUCH OF THE ICC ORDER AS AUTHORIZED AN INCREASE IN THE INTERSTATE
FARES TO THE TWO WISCONSIN POINTS.  WE BELIEVE, HOWEVER, THAT THESE
RATES ARE SO INTERWOVEN WITH AND SO CLOSELY BOUND TO THE INTRASTATE
RATES THAT A PROPER DISPOSITION OF THIS CASE REASONABLY REQUIRES THAT
THE COMMISSION RECONSIDER THEM AS PART OF ITS RECONSIDERATION OF THE
ENTIRE CHICAGO SUBURBAN COMMUTER SERVICE.  THE ONLY REASON WHY THE ICC
INCREASED THE INTERSTATE RATES WAS TO MAKE THEM CONFORM TO THE
INCREASED INTRASTATE RATES. 

PARAGRAPH 3 OF THE DISTRICT COURT JUDGMENT DATED JUNE 14, 1956, IS
MODIFIED TO PROVIDE THAT THE REMAND TO THE ICC SHALL BE FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  24 STAT. 383, AS AMENDED, 41 STAT. 484, 49 U.S.C. SEC. 13(4): 

"WHENEVER IN ANY SUCH INVESTIGATION THE COMMISSION, AFTER FULL
HEARINGS, FINDS THAT ANY SUCH RATE, FARE, CHARGE, CLASSIFICATION,
REGULATION, OR PRACTICE CAUSES ANY UNDUE OR UNREASONABLE ADVANTAGE,
PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS OR LOCALITIES IN INTRASTATE
COMMERCE ON THE ONE HAND AND INTERSTATE OR FOREIGN COMMERCE ON THE
OTHER HAND, OR ANY UNDUE, UNREASONABLE, OR UNJUST DISCRIMINATION
AGAINST INTERSTATE OR FOREIGN COMMERCE, WHICH IS FORBIDDEN AND DECLARED
TO BE UNLAWFUL, IT SHALL PRESCRIBE THE RATE, FARE, OR CHARGE, OR THE
MAXIMUM OR MINIMUM, OR MAXIMUM AND MINIMUM, THEREAFTER TO BE CHARGED,
AND THE CLASSIFICATION, REGULATION, OR PRACTICE THEREAFTER TO BE
OBSERVED, IN SUCH MANNER AS, IN ITS JUDGMENT, WILL REMOVE SUCH
ADVANTAGE, PREFERENCE, PREJUDICE, OR DISCRIMINATION.  SUCH RATES,
FARES, CHARGES, CLASSIFICATIONS, REGULATIONS, AND PRACTICES SHALL BE
OBSERVED WHILE IN EFFECT BY THE CARRIERS PARTIES TO SUCH PROCEEDING
AFFECTED THEREBY, THE LAW OF ANY STATE OR THE DECISION OR ORDER OF ANY
STATE AUTHORITY TO THE CONTRARY NOTWITHSTANDING." 

FN2  THE INJUNCTION WAS STAYED PENDING THE HEARING OF THE APPEAL TO
THIS COURT.  THE EXCESS FARES ARE BEING IMPOUNDED UNDER A PROVISION OF
THE STAY ORDER PROVIDING FOR THEIR REFUND TO THE PERSONS WHO PAID THEM
IN THE EVENT THE JUDGMENT APPEALED FROM IS AFFIRMED. 

FN3  THE MILWAUKEE ROAD IS THE APPELLANT IN NO. 12.  THE UNITED
STATES IS THE APPELLANT IN NO. 27.  THE ICC IS THE APPELLANT IN NO.
28.  EACH APPEALS FROM THE PARTICULAR PROVISIONS OF THE JUDGMENT BY
WHICH IT IS AGGRIEVED. 

FN4  THE INTERSTATE FARES TO THE TWO WISCONSIN POINTS WERE ALSO
RAISED IN THIS PROCEEDING BY AN ICC ORDER ENTERED NOVEMBER 21, 1955,
AND ORDER NO. 26550, PASSENGER FARES AND SURCHARGES, 214 I.C.C. 174,
WAS MODIFIED SO AS TO PERMIT THE RATES TO BE MADE EFFECTIVE.  NO
AFFIRMATIVE ORDER RAISING THE INTRASTATE RATES WAS MADE, HOWEVER, UNTIL
MARCH 2, 1956.  THE ICC REPORT ALLOWED THE MILWAUKEE ROAD AND THE
ILLINOIS COMMERCE COMMISSION 60 DAYS IN WHICH TO ADJUST THE INTRASTATE
RATES ON THE BASES PRESCRIBED IN THE REPORT.  FAILING SUCH ADJUSTMENT
THE ORDER OF MARCH 2, 1956, PRESCRIBING THE INTRASTATE RATES WAS
ENTERED AND ORDER NO. 11703, INTRASTATE RATES WITHIN ILLINOIS, 59
U.C.C. 350, WAS MODIFIED TO PERMIT THE MILWAUKEE ROAD TO MAKE THE
INTRASTATE RATES EFFECTIVE. 

FN5  24 STAT. 383, AS AMENDED, 41 STAT. 484, 49 U.S.C. SEC. 13(3): 

"WHENEVER IN ANY INVESTIGATION UNDER THE PROVISIONS OF THIS CHAPTER,
OR IN ANY INVESTIGATION INSTITUTED UPON PETITION OF THE CARRIER
CONCERNED, WHICH PETITION IS AUTHORIZED TO BE FILED, THERE SHALL BE
BROUGHT IN ISSUE ANY RATE, FARE, CHARGE, CLASSIFICATION, REGULATION, OR
PRACTICE, MADE OR IMPOSED BY AUTHORITY OF ANY STATE, THE COMMISSION,
BEFORE PROCEEDING TO HEAR AND DISPOSE OF SUCH ISSUE, SHALL CAUSE THE
STATE OR STATES INTERESTED TO BE NOTIFIED OF THE PROCEEDING.  THE
COMMISSION MAY CONFER WITH THE AUTHORITIES OF ANY STATE HAVING
REGULATORY JURISDICTION OVER THE CLASS OF PERSONS AND CORPORATIONS
SUBJECT TO THIS CHAPTER OR CHAPTER 12 OF THIS TITLE WITH RESPECT TO THE
RELATIONSHIP BETWEEN RATE STRUCTURES AND PRACTICES OF CARRIERS SUBJECT
TO THE JURISDICTION OF SUCH STATE BODIES AND OF THE COMMISSION; AND TO
THAT END IS AUTHORIZED AND EMPOWERED, UNDER RULES TO BE PRESCRIBED BY
IT, AND WHICH MAY BE MODIFIED FROM TIME TO TIME, TO HOLD JOINT HEARINGS
WITH ANY SUCH STATE REGULATING BODIES ON ANY MATTERS WHEREIN THE
COMMISSION IS EMPOWERED TO ACT AND WHERE THE RATE-MAKING AUTHORITY OF A
STATE IS OR MAY BE AFFECTED BY THE ACTION TAKEN BY THE COMMISSION.  THE
COMMISSION IS ALSO AUTHORIZED TO AVAIL ITSELF OF THE COOPERATION,
SERVICES, RECORDS, AND FACILITIES OF SUCH STATE AUTHORITIES IN THE
ENFORCEMENT OF ANY PROVISION OF THIS CHAPTER OR CHAPTER 12 OF THIS
TITLE." 

FN6  WISCONSIN R. COMM'N V. CHICAGO, B.&Q.R. CO., 257 U.S. 563, 586. 
"THE EFFECTIVE OPERATION OF THE (INTERSTATE COMMERCE) ACT WILL
REASONABLY AND JUSTLY REQUIRE THAT INTRASTATE TRAFFIC SHOULD PAY A FAIR
PROPORTIONATE SHARE OF THE COST OF MAINTAINING AN ADEQUATE RAILWAY
SYSTEM." 

FN7  THIS WOULD SEEM TO BE PARTICULARLY REQUIRED HERE IN LIGHT OF THE
COMMISSION'S RECOGNITION "THAT THE DEFICIT FROM THE (MILWAUKEE ROAD'S)
TOTAL PASSENGER OPERATIONS IS RELATIVELY GREATER THAN FROM ITS SUBURBAN
OPERATIONS."  297 I.C.C. 353, 359. 

THE COMMISSION FOUND THAT THE MILWAUKEE ROAD EARNED IN 1954 FROM ITS
FREIGHT OPERATIONS $37,293,050, AND SUFFERED A DEFICIT FROM ALL
PASSENGER OPERATIONS OF $22,824,532, RESULTING IN A NET RAILWAY
OPERATING INCOME OF $14,568,518.  THIS REPRESENTED A RETURN OF
APPROXIMATELY 2%. 

FN8  WE AGREE WITH THE DISTRICT COURT THAT THAT PORTION OF THE
PRESCRIBED INCREASES DESIGNED TO PRODUCE $77,000 ANNUALLY AS A
CONTRIBUTION TO INDIRECT COSTS AND TAXES IS NOT BASED UPON ADEQUATE
FINDINGS.  THERE IS NO FINDING OF THE TOTAL OF INDIRECT COSTS AND TAXES
TO WHICH CONTRIBUTION IS TO BE MADE, NOR ANY FINDING FROM WHICH WE MAY
INFER HOW THE ICC DERIVED ITS CONCLUSION THAT A $77,000 CONTRIBUTION
WAS FAIR.  IT IS AXIOMATIC THAT TO KNOW WHETHER SOMETHING IS A FAIR
PROPORTIONATE PART OF SOMETHING ELSE, WE MUST BE TOLD WHAT THE
SOMETHING ELSE IS. 

ON THE OTHER HAND WE CANNOT AGREE WITH THE DISTRICT COURT THAT THERE
WAS NOT SUPPORT IN THE EVIDENCE FOR THE ICC'S FINDING THAT THE
PRESCRIBED RATES WOULD BE JUST AND REASONABLE FOR THE FUTURE.  THE ICC
DID NOT RELY SOLELY UPON THE COMPARISON WITH THE SIMILAR FARES OF THE
NORTHWESTERN, FOR THERE WAS AMPLE OTHER EVIDENCE IN THE RECORD TO
SUSTAIN THEIR FINDINGS.  BUT THE FACTORS WHICH DETERMINE THE
REASONABLENESS OF A RATE ARE SO DIFFERENT FROM THE FACTORS WHICH
DETERMINE WHAT IS A FAIR PROPORTIONATE SHARE OF A CARRIER'S TOTAL
INCOME THAT A FINDING OF THE REASONABLENESS OF THE RATES PRESCRIBED
DOES NOT EMBRACE ALL THE FINDINGS NECESSARY TO SUPPORT THE EXERCISE OF
THE SEC. 13(4) POWER. 
..END :



STAUB V. CITY OF BAXLEY 355 U.S. 313 


NO. 48.  ARGUED NOVEMBER 18-19, 1957 - DECIDED JANUARY 13, 1958 - 94 GA.
APP. 18, 93 S.E.2D 375, REVERSED. 


A CITY ORDINANCE MADE IT AN OFFENSE TO "SOLICIT" CITIZENS OF THE CITY
TO BECOME MEMBERS OF ANY "ORGANIZATION, UNION OR SOCIETY" WHICH
REQUIRES FEES OR DUES FROM ITS MEMBERS WITHOUT FIRST APPLYING FOR A
RECEIVING FROM THE MAYOR AND COUNCIL A "PERMIT," WHICH THEY MIGHT GRANT
OR REFUSE AFTER CONSIDERING THE CHARACTER OF THE APPLICANT, THE NATURE
OF THE ORGANIZATION AND ITS EFFECTS UPON THE GENERAL WELFARE OF THE
CITIZENS.  FOR SOLICITING APPLICATIONS FOR MEMBERSHIP IN A LABOR UNION
IN THE PRIVATE HOMES OF EMPLOYEES WITHOUT APPLYING FOR OR OBTAINING
SUCH A PERMIT, APPELLANT WAS CONVICTED OF A VIOLATION OF THIS ORDINANCE
AND SENTENCED TO FINE OR IMPRISONMENT, NOTWITHSTANDING HER CLAIM THAT
THE ORDINANCE VIOLATED HER RIGHTS UNDER THE FEDERAL CONSTITUTION.  THE
STATE COURT OF APPEALS AFFIRMED.  IT DECLINED TO PASS ON APPELLANT'S
CONTENTION, ON THE GROUNDS THAT (1) APPELLANT LACKED STANDING TO ATTACK
THE CONSTITUTIONALITY OF THE ORDINANCE BECAUSE SHE HAD MADE NO ATTEMPT
TO OBTAIN A PERMIT UNDER IT, AND (2) UNDER STATE PROCEDURE, HER ATTACK
SHOULD HAVE BEEN MADE AGAINST SPECIFIC SECTIONS OF THE ORDINANCE AND
NOT AGAINST THE ORDINANCE AS A WHOLE.  HELD: 

1.  THE DECISION OF THE STATE COURT OF APPEALS DOES NOT REST ON AN
ADEQUATE NONFEDERAL GROUND, AND THIS COURT HAS JURISDICTION OF THIS
APPEAL.  PP. 318-320. 

(A)  FAILURE TO APPLY FOR A LICENSE UNDER AN ORDINANCE WHICH ON ITS
FACE VIOLATES THE CONSTITUTION DOES NOT PRECLUDE REVIEW IN THIS COURT
OF A JUDGMENT OF CONVICTION UNDER SUCH AN ORDINANCE.  P. 319. 

(B)  IN THE CIRCUMSTANCES OF THIS CASE, APPELLANT'S FAILURE TO ATTACK
SPECIFIC SECTIONS OF THE ORDINANCE, IN ACCORDANCE WITH STATE PROCEDURE,
IS NOT AN ADEQUATE NONFEDERAL GROUND OF DECISION.  PP. 319-320. 

2.  THE ORDINANCE IS INVALID ON ITS FACE, BECAUSE IT MAKES ENJOYMENT
OF THE CONSTITUTIONALLY GUARANTEED FREEDOM OF SPEECH CONTINGENT UPON
THE WILL OF THE MAYOR AND COUNCIL AND THEREBY CONSTITUTES A PRIOR
RESTRAINT UPON, AND ABRIDGES, THAT FREEDOM, CONTRARY TO THE FOURTEENTH
AMENDMENT.  PP. 321-325. 

STAUB V. CITY OF BAXLEY. 

APPEAL FROM THE COURT OF APPEALS OF GEORGIA. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

APPELLANT, ROSE STAUB, WAS CONVICTED IN THE MAYOR'S COURT OF THE CITY
OF BAXLEY, GEORGIA, OF VIOLATION OF A CITY ORDINANCE AND WAS SENTENCED
TO IMPRISONMENT FOR 30 DAYS OR TO PAY A FIND OF $300.  THE SUPERIOR
COURT OF THE COUNTY AFFIRMED THE JUDGMENT OF CONVICTION; THE COURT OF
APPEALS OF THE STATE AFFIRMED THE JUDGMENT OF THE SUPERIOR COURT, 94
GA. APP. 18, 93 S.E.2D 375; AND THE SUPREME COURT OF THE STATE DENIED
AN APPLICATION FOR CERTIORARI.  THE CASE COMES HERE ON APPEAL. 

THE ORDINANCE IN QUESTION IS SET FORTH IN THE MARGIN.  (FN1)  ITS
VIOLATION, WHICH IS NOT DENIED, AROSE FROM THE FOLLOWING UNDISPUTED
FACTS SHOWN AT THE TRIAL:  APPELLANT WAS A SALARIED EMPLOYEE OF THE
INTERNATIONAL LADIES' GARMENT WORKERS UNION WHICH WAS ATTEMPTING TO
ORGANIZE THE EMPLOYEES OF A MANUFACTURING COMPANY LOCATED IN THE NEARBY
TOWN OF HAZELHURST.  A NUMBER OF THOSE EMPLOYEES LIVED IN BAXLEY.  ON
FEBRUARY 19, 1954, APPELLANT AND ONE MAMIE MERRITT, ALSO A SALARIED
EMPLOYEE OF THE UNION, WENT TO BAXLEY AND, WITHOUT APPLYING FOR PERMITS
REQUIRED UNDER THE ORDINANCE, TALKED WITH SEVERAL OF THE EMPLOYEES AT
THEIR HOMES ABOUT JOINING THE UNION.  WHILE IN A RESTAURANT IN BAXLEY
ON THAT DAY THEY WERE SOUGHT OUT AND QUESTIONED BY THE CHIEF OF POLICE
CONCERNING THEIR ACTIVITIES IN BAXLEY, AND APPELLANT TOLD HIM THAT THEY
WERE "GOING AROUND TALKING TO SOME OF THE WOMEN TO ORGANIZE THE FACTORY
WORKERS  ...  AND HOLDING MEETINGS WITH THEM FOR THAT PURPOSE."  LATER
THAT DAY A MEETING WAS HELD AT THE HOME OF ONE OF THE EMPLOYEES,
ATTENDED BY THREE OTHER EMPLOYEES, AT WHICH, IN THE WORDS OF THE
HOSTESS, APPELLANT "JUST TOLD US THEY WANTED US TO JOIN THE UNION, AND
SAID IT WOULD BE A GOOD THING FOR US TO DO  ...  AND WENT ON TO TELL US
HOW THIS UNION WOULD HELP US."  APPELLANT TOLD THOSE PRESENT THAT THE
MEMBERSHIP DUES WOULD BE 64 CENTS PER WEEK BUT WOULD NOT BE PAYABLE
UNTIL THE EMPLOYEES WERE ORGANIZED.  NO MONEY WAS ASKED OR RECEIVED
FROM THE PERSONS AT THE MEETING, BUT THEY WERE INVITED "TO GET OTHER
GIRLS  ...  THERE TO JOIN THE UNION" AND BLANK MEMBERSHIP CARDS WERE
OFFERED FOR THAT USE.  APPELLANT FURTHER EXPLAINED THAT THE IMMEDIATE
OBJECTIVE WAS TO "HAVE ENOUGH CARDS SIGNED TO PETITION FOR AN ELECTION
...  WITH THE LABOR BOARD."  (FN2) 

ON THE SAME DAY A SUMMONS WAS ISSUED AND SERVED BY THE CHIEF OF
POLICE COMMANDING APPELLANT TO APPEAR BEFORE THE MAYOR'S COURT THREE
DAYS LATER TO ANSWER "TO THE OFFENSE OF SOLICITING MEMBERS FOR AN
ORGANIZATION WITHOUT A PERMIT & LICENSE." 

BEFORE THE TRIAL, APPELLANT MOVED TO ABATE THE ACTION UPON A NUMBER OF
GROUNDS, AMONG WHICH WERE THE CONTENTIONS THAT THE ORDINANCE "SHOWS ON
ITS FACE THAT IT IS REPUGNANT TO AND VIOLATIVE OF THE 1ST AND 4TH
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES IN THAT IT PLACES A
CONDITION PRECEDENT UPON, AND OTHERWISE UNLAWFULLY RESTRICTS, THE
DEFENDANT'S FREEDOM OF SPEECH AS WELL AS FREEDOM OF THE PRESS AND
FREEDOM OF LAWFUL ASSEMBLY" REQUIRING, AS CONDITIONS PRECEDENT TO THE
EXERCISE OF THOSE RIGHTS, THE ISSUANCE OF A "LICENSE" WHICH THE MAYOR
AND CITY COUNCIL ARE AUTHORIZED BY THE ORDINANCE TO GRANT OR REFUSE IN
THEIR DISCRETION, AND THE PAYMENT OF A "LICENSE FEE" WHICH IS
DISCRIMINATORY AND UNREASONABLE IN AMOUNT AND CONSTITUTES A PROHIBITORY
FLAT TAX UPON THE PRIVILEGE OF SOLICITING PERSONS TO JOIN A LABOR
UNION.  THESE CONTENTIONS WERE OVERRULED BY THE MAYOR'S COURT AND,
AFTER A CONTINUANCE, (FN3) THE CASE WAS TRIED AND APPELLANT WAS
CONVICTED AND SENTENCED AS STATED.  (FN4)  THE SAME CONTENTIONS WERE
MADE IN THE SUPERIOR COURT WHERE THE CITY ANSWERED, DENYING "THAT THE
ORDINANCE IS INVLIAD OR VOID FOR ANY OF THE REASONS STATED" BY
APPELLANT, AND, AFTER A HEARING, THAT COURT AFFIRMED THE JUDGMENT OF
CONVICTION. 

THOSE CONTENTIONS WERE RENEWED IN THE COURT OF APPEALS BUT THAT COURT
DECLINED TO CONSIDER THEM.  IT STATED THAT "THE ATTACK SHOULD HAVE BEEN
MADE AGAINST SPECIFIC SECTIONS OF THE ORDINANCE AND NOT AGAINST THE
ORDINANCE AS A WHOLE"; THAT "HAVING MADE NO EFFORT TO SECURE A LICENSE,
THE DEFENDANT IS IN NO POSITION TO CLAIM THAT ANY SECTION OF THE
ORDINANCE IS INVALID OR UNCONSTITUTIONAL"; AND THAT SINCE IT "APPEARS
THAT THE ATTACK WAS NOT MADE AGAINST ANY PARTICULAR SECTION OF THE
ORDINANCE AS BEING VOID OR UNCONSTITUTIONAL, AND THAT THE DEFENDANT HAS
MADE NO EFFORT TO COMPLY WITH ANY SECTION OF THE ORDINANCE  ...  IT IS
NOT NECESSARY TO PASS UPON THE SUFFICIENCY OF THE EVIDENCE, THE
CONSTITUTIONALITY OF THE ORDINANCE, OR ANY OTHER PHASE OF THE CASE  ...
."  THE COURT THEN HELD THAT "THE TRIAL COURT DID NOT ERR IN
OVERRULING THE WRIT OF CERTIORARI" AND AFFIRMED THE JUDGMENT OF
CONVICTION.  94 GA. APP., AT 24, 93 S.E.2D, AT 378-379. 

AT THE THRESHOLD, APPELLEE URGES THAT THIS APPEAL BE DISMISSED
BECAUSE, IT ARGUES, THE DECISION OF THE COURT OF APPEALS WAS BASED UPON
STATE PROCEDURAL GROUNDS AND THUS RESTS UPON AN ADEQUATE NONFEDERAL
BASIS, AND THAT WE ARE THEREFORE WITHOUT JURISDICTION TO ENTERTAIN IT.
HENCE, THE QUESTION IS WHETHER THAT BASIS WAS AN ADEQUATE ONE IN THE
CIRCUMSTANCES OF THIS CASE.  "WHETHER A PLEADING SETS UP A SUFFICIENT
RIGHT OF ACTION OR DEFENSE, GROUNDED ON THE CONSTITUTION OR A LAW OF
THE UNITED STATES, IS NECESSARILY A QUESTION OF FEDERAL LAW; AND WHERE
A CASE COMING FROM A STATE COURT PRESENTS THAT QUESTION, THIS COURT
MUST DETERMINE FOR ITSELF THE SUFFICIENCY OF THE ALLEGATIONS DISPLAYING
THE RIGHT OR DEFENSE, AND IS NOT CONCLUDED BY THE VIEW TAKEN OF THEM BY
THE STATE COURT."  FIRST NATIONAL BANK V. ANDERSON, 269 U.S. 341, 346,
AND CASES CITED.  SEE ALSO SCHUYLKILL TRUST CO. V. PENNSYLVANIA, 296
U.S. 133, 122-123, AND LOVELL V. GRIFFIN, 303 U.S. 444, 450.  AS MR.
JUSTICE HOLMES SAID IN DAVIS V. WECHSLER, 263 U.S. 22, 24, "WHATEVER
SPRINGES THE STATE MAY SET FOR THOSE WHO ARE ENDEAVORING TO ASSERT
RIGHTS THAT THE STATE CONFERS, THE ASSERTION OF FEDERAL RIGHTS, WHEN
PLAINLY AND REASONABLY MADE, IS NOT TO BE DEFEATED UNDER THE NAME OF
LOCAL PRACTICE."  WHETHER THE CONSTITUTIONAL RIGHTS ASSERTED BY THE
APPELLANT WERE "  ...  GIVEN DUE RECOGNITION BY THE (COURT OF APPEALS)
IS A QUESTION AS TO WHICH THE (APPELLANT IS) ENTITLED TO INVOKE OUR
JUDGMENT, AND THIS (SHE HAS) DONE IN THE APPROPRIATE WAY.  IT THEREFORE
IS WITHIN OUR PROVINCE TO INQUIRE NOT ONLY WHETHER THE RIGHT WAS DENIED
IN EXPRESS TERMS, BUT ALSO WHETHER IT WAS DENIED IN SUBSTANCE AND
EFFECT, AS BY PUTTING FORWARD NON-FEDERAL GROUNDS OF DECISION THAT WERE
WITHOUT ANY FAIR OR SUBSTANTIAL SUPPORT ...  (FOR) IF NON-FEDERAL
GROUNDS, PLAINLY UNTENABLE, MAY BE THUS PUT FORWARD SUCCESSFULLY, OUR
POWER TO REVIEW EASILY MAY BE AVOIDED."  WARD V. LOVE COUNTY, 253 U.S.
17, 22, AND CASES CITED. 

THE FIRST OF THE NONFEDERAL GROUNDS RELIED ON BY APPELLEE, AND UPON
WHICH THE DECISION OF THE COURT OF APPEALS RESTS, IS THAT APPELLANT
LACKED STANDING TO ATTACK THE CONSTITUTIONALITY OF THE ORDINANCE
BECAUSE SHE MADE NO ATTEMPT TO SECURE A PERMIT UNDER IT.  THIS IS NOT
AN ADEQUATE NONFEDERAL GROUND OF DECISION.  THE DECISIONS OF THIS COURT
HAVE UNIFORMLY HELD THAT THE FAILURE TO APPLY FOR A LICENSE UNDER AN
ORDINANCE WHICH ON ITS FACE VIOLATES THE CONSTITUTION DOES NOT PRECLUDE
REVIEW IN THIS COURT OF A JUDGMENT OF CONVICTION UNDER SUCH AN
ORDINANCE.  SMITH V. CAHOON, 283 U.S. 553, 562; LOVELL V. GRIFFIN, 303
U.S. 444, 452.  "THE CONSTITUTION CAN HARDLY BE THOUGHT TO DENY TO ONE
SUBJECTED TO THE RESTRAINTS OF SUCH AN ORDINANCE THE RIGHT TO ATTACK
ITS CONSTITUTIONALITY, BECAUSE HE HAS NOT YIELDED TO ITS DEMANDS." 
JONES V. OPELIKA, 316 U.S. 584, 602, DISSENTING OPINION, ADOPTED PER
CURIAM ON REHEARING, 319 U.S. 103, 104. 

APPELLEE ALSO CONTENDS THAT THE HOLDING OF THE COURT OF APPEALS, THAT
APPELLANT'S FAILURE TO ATTACK "SPECIFIC SECTIONS" OF THE ORDINANCE
RENDERED IT UNNECESSARY, UNDER GEORGIA PROCEDURE, "TO PASS UPON  ...
THE CONSTITUTIONALITY OF THE ORDINANCE, OR ANY OTHER PHASE OF THE CASE
...  ," CONSTITUTES AN ADEQUATE "NON-FEDERAL GROUND" TO PRECLUDE REVIEW
IN THIS COURT.  WE THINK THIS CONTENTION IS "WITHOUT ANY FAIR OR
SUBSTANTIAL SUPPORT" (WARD V. LOVE COUNTY, SUPRA) AND THEREFORE DOES
NOT PRESENT AN ADEQUATE NONFEDERAL GROUND OF DECISION IN THE
CIRCUMSTANCES OF THIS CASE.  THE SEVERAL SECTIONS OF THE ORDINANCE ARE
INTERDEPENDENT IN THEIR APPLICATION TO ONE IN APPELLANT'S POSITION AND
CONSTITUTE BUT ONE COMPLETE ACT FOR THE LICENSING AND TAXING OF HER
DESCRIBED ACTIVITIES.  FOR THAT REASON, NO DOUBT, SHE CHALLENGED THE
CONSTITUTIONALITY OF THE WHOLE ORDINANCE, AND IN HER OBJECTIONS USED
LANGUAGE CHALLENGING THE CONSTITUTIONAL EFFECT OF ALL ITS SECTIONS. 
SHE DID, THUS, CHALLENGE ALL SECTIONS OF THE ORDINANCE, THOUGH NOT BY
NUMBER.  TO REQUIRE HER, IN THESE CIRCUMSTANCES, TO COUNT OFF, ONE BY
ONE, THE SEVERAL SECTIONS OF THE ORDINANCE WOULD BE TO FORCE RESORT TO
AN ARID RITUAL OF MEANINGLESS FORM.  INDEED, THE SUPREME COURT OF
GEORGIA SEEMS TO HAVE RECOGNIZED THE ARBITRARINESS OF SUCH EXALTATION
OF FORM.  ONLY FOUR YEARS AGO THAT COURT RECOGNIZED THAT AN ATTACK ON
SUCH A STATUTE WAS SUFFICIENT IF "THE (STATUTE) SO CHALLENGED WAS
INVALID IN EVERY PART FOR SOME REASON ALLEGED."  FLYNN V. STATE, 209
GA. 519, 522, 74 S.E.2D 461, 464 (1953).  IN ENUNCIATING THAT RULE THE
COURT WAS FOLLOWING A LONG LINE OF ITS OWN DECISIONS.  ATLANTIC LOAN
CO. V. PETERSON, 181 GA. 266, 269, 182 S.E. 15, 16-17 (1935); MILLER V.
HEAD, 186 GA. 694, 708, 198 S.E. 680, 687-688 (1938); STEGALL V.
SOUTHWEST GEORGIA REGIONAL HOUSING AUTHORITY, 197 GA.  571, 30 S.E.2D
196 (1944); KRASNER V. RUTLEDGE, 204 GA. 380, 383, 49 S.E.2D 864, 866
(1948). 

WE CONCLUDE THAT THE DECISION OF THE COURT OF APPEALS DOES NOT REST
ON AN ADEQUATE NONFEDERAL GROUND AND THAT WE HAVE JURISDICTION OF THIS
APPEAL. 

THE FIRST AMENDMENT OF THE CONSTITUTION PROVIDES:  "CONGRESS SHALL
MAKE NO LAW  ...  ABRIDGING THE FREEDOM OF SPEECH  ...  ."  THIS
FREEDOM IS AMONG THE FUNDAMENTAL PERSONAL RIGHTS AND LIBERTIES WHICH
ARE PROTECTED BY THE FOURTEENTH AMENDMENT FROM INVASION BY STATE
ACTION; AND MUNICIPAL ORDINANCES ADOPTED UNDER STATE AUTHORITY
CONSTITUTE STATE ACTION.  LOVELL V. GRIFFIN, SUPRA, AT 450, AND CASES
CITED. 

THIS ORDINANCE IN ITS BROAD SWEEP MAKES IT AN OFFENSE TO "SOLICIT"
CITIZENS OF THE CITY OF BAXLEY TO BECOME MEMBERS OF ANY "ORGANIZATION,
UNION OR SOCIETY" WHICH REQUIRES "FEES (OR) DUES" FROM ITS MEMBERS
WITHOUT FIRST APPLYING FOR AND RECEIVING FROM THE MAYOR AND COUNCIL OF
THE CITY A "PERMIT" (SECTIONS I AND II) WHICH THEY MAY GRANT OR REFUSE
TO GRANT (SECTION V) AFTER CONSIDERING "THE CHARACTER OF THE APPLICANT,
THE NATURE OF THE  ...  ORGANIZATION FOR WHICH MEMBERS ARE DESIRED TO
BE SOLICITED, AND ITS EFFECTS UPON THE GENERAL WELFARE OF (THE)
CITIZENS OF THE CITY OF BAXLEY" (SECTION IV). 

APPELLANT'S FIRST CONTENTION IN THIS COURT IS THAT THE ORDINANCE IS
INVALID ON ITS FACE BECAUSE IT MAKES ENJOYMENT OF THE CONSTITUTIONALLY
GUARANTEED FREEDOM OF SPEECH CONTINGENT UPON THE WILL OF THE MAYOR AND
COUNCIL OF THE CITY AND THEREBY CONSTITUTES A PRIOR RESTRAINT UPON, AND
ABRIDGES, THAT FREEDOM.  BELIEVING THAT APPELLANT IS RIGHT IN THAT
CONTENTION AND THAT THE JUDGMENT MUST BE REVERSED FOR THAT REASON, WE
CONFINE OUR CONSIDERATIONS TO THAT PARTICULAR QUESTION AND DO NOT REACH
OTHER QUESTIONS PRESENTED. 

IT WILL BE NOTED THAT APPELLANT WAS NOT ACCUSED OF ANY ACT AGAINST
THE PEACE, GOOD ORDER OR DIGNITY OF THE COMMUNITY, NOR FOR ANY
PARTICULAR THING SHE SAID IN SOLICITING EMPLOYEES OF THE MANUFACTURING
COMPANY TO JOIN THE UNION.  SHE WAS SIMPLY CHARGED AND CONVICTED FOR
"SOLICITING MEMBERS FOR AN ORGANIZATION WITHOUT A PERMIT."  THIS
SOLICITATION, AS SHOWN BY THE EVIDENCE, CONSISTED SOLELY OF SPEAKING TO
THOSE EMPLOYEES IN THEIR PRIVATE HOMES ABOUT JOINING THE UNION.  (FN5) 

IT WILL ALSO BE NOTED THAT THE PERMIT IS NOT TO BE ISSUED AS A MATTER
OF COURSE, BUT ONLY UPON THE AFFIRMATIVE ACTION OF THE MAYOR AND
COUNCIL OF THE CITY.  THEY ARE EXPRESSLY AUTHORIZED TO REFUSE TO GRANT
THE PERMIT IF THEY DO NOT APPROVE OF THE APPLICANT OR OF THE UNION OR
OF THE UNION'S "EFFECTS UPON THE GENERAL WELFARE OF CITIZENS OF THE
CITY OF BAXLEY."  THESE CRITERIA ARE WITHOUT SEMBLANCE OF DEFINITIVE
STANDARDS OR OTHER CONTROLLING GUIDES GOVERNING THE ACTION OF THE MAYOR
AND COUNCIL IN GRANTING OR WITHHOLDING A PERMIT.  CF.  NIEMOTKO V.
MARYLAND, 340 U.S. 268, 271-273.  IT IS THUS PLAIN THAT THEY ACT IN
THIS RESPECT IN THEIR UNCONTROLLED DISCRETION. 

IT IS SETTLED BY A LONG LINE OF RECENT DECISIONS OF THIS COURT THAT
AN ORDINANCE WHICH, LIKE THIS ONE, MAKES THE PEACEFUL ENJOYMENT OF
FREEDOMS WHICH THE CONSTITUTION GUARANTEES CONTINGENT UPON THE
UNCONTROLLED WILL OF AN OFFICIAL - AS BY REQUIRING A PERMIT OR LICENSE
WHICH MAY BE GRANTED OR WITHHELD IN THE DISCRETION OF SUCH OFFICIAL -
IS AN UNCONSTITUTIONAL CENSORSHIP OR PRIOR RESTRAINT UPON THE ENJOYMENT
OF THOSE FREEDOMS. 

IN CANTWELL V. CONNECTICUT, 310 U.S. 296, THIS COURT HELD INVALID AN
ACT WHICH PROSCRIBED SOLICITING MONEY OR ANY VALUABLE THING FOR "ANY
ALLEGED RELIGIOUS, CHARITABLE OR PHILANTHROPIC CAUSE" UNLESS THE
"CAUSE" IS APPROVED BY THE SECRETARY OF THE PUBLIC WELFARE COUNCIL OF
THE STATE.  SPEAKING FOR A UNANIMOUS COURT, MR. JUSTICE ROBERTS SAID: 
"IT WILL BE NOTED, HOWEVER, THAT THE ACT REQUIRES AN APPLICATION TO
THE SECRETARY OF THE PUBLIC WELFARE COUNCIL OF THE STATE; THAT HE IS
EMPOWERED TO DETERMINE WHETHER THE CAUSE IS A RELIGIOUS ONE, AND THAT
THE ISSUE OF A CERTIFICATE DEPENDS UPON HIS AFFIRMATIVE ACTION.  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  ...  IS A DENIAL
OF LIBERTY PROTECTED BY THE FIRST AMENDMENT AND INCLUDED IN THE LIBERTY
WHICH IS WITHIN THE PROTECTION OF THE FOURTEENTH  ...  .  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.  310 U.S., AT 305, 307. 

TO THE SAME EFFECT ARE LOVELL V. GRIFFIN, SUPRA, AT 451, 452; (FN6)
HAGUE V. C.I.O., 307 U.S. 496, 516; (FN7) SCHNEIDER V. STATE, 308 U.S.
147, 163, 164; (FN8) LARGENT V. TEXAS, 318 U.S. 418, 422; (FN9) JONES
V. OPELIKA, 319 U.S. 103, ADOPTING PER CURIAM ON REHEARING THE
DISSENTING OPINION IN 316 U.S. 584, 600-602; (FN10) NIEMOTKO V.
MARYLAND, 340 U.S. 268, 271; (FN11) KUNZ V. NEW YORK, 340 U.S. 290,
293.  (FN12)

IT IS UNDENIABLE THAT THE ORDINANCE AUTHORIZED THE MAYOR AND COUNCIL
OF THE CITY OF BAXLEY TO GRANT "OR REFUSE TO GRANT" THE REQUIRED PERMIT
IN THEIR UNCONTROLLED DISCRETION.  IT THUS MAKES ENJOYMENT OF SPEECH
CONTINGENT UPON THE WILL OF THE MAYOR AND COUNCIL OF THE CITY, ALTHOUGH
THAT FUNDAMENTAL RIGHT IS MADE FREE FROM CONGRESSIONAL ABRIDGMENT BY
THE FIRST AMENDMENT AND IS PROTECTED BY THE FOURTEENTH FROM INVASION BY
STATE ACTION.  FOR THESE REASONS, THE ORDINANCE, ON ITS FACE, IMPOSES
AN UNCONSTITUTIONAL PRIOR RESTRAINT UPON THE ENJOYMENT OF FIRST
AMENDMENT FREEDOMS AND LAYS "A FORBIDDEN BURDEN UPON THE EXERCISE OF
LIBERTY PROTECTED BY THE CONSTITUTION."  CANTWELL V. CONNECTICUT,
SUPRA, AT 307.  THEREFORE, THE JUDGMENT OF CONVICTION MUST FALL. 
REVERSED. 

FN1  "SECTION I. BEFORE ANY PERSON OR PERSONS, FIRMS OR ORGANIZATIONS
SHALL SOLICIT MEMBERSHIP FOR ANY ORGANIZATION, UNION OR SOCIETY OF ANY
SORT WHICH REQUIRES FROM ITS MEMBERS THE PAYMENTS OF MEMBERSHIP FEES,
DUES OR IS ENTITLED TO MAKE ASSESSMENT AGAINST ITS MEMBERS, SUCH PERSON
OR PERSONS SHALL MAKE APPLICATION IN WRITING TO MAYOR AND COUNCIL OF
THE CITY OF BAXLEY FOR THE ISSUANCE OF A PERMIT TO SOLICIT MEMBERS IN
SUCH ORGANIZATION FROM AMONG THE CITIZENS OF BAXLEY. 

"SECTION II.  SUCH APPLICATION SHALL GIVE THE NAME AND NATURE OF THE
ORGANIZATION FOR WHICH APPLICANT DESIRES TO SOLICIT MEMBERS, WHETHER
SUCH ORGANIZATION IS INCORPORATED OR UNINCORPORATED, THE LOCATION OF
ITS PRINCIPAL OFFICE AND PLACE OF BUSINESS AND THE NAMES OF ITS
OFFICERS, ALONG WITH DATE OF ITS ORGANIZATION, AND ITS ASSETS AND
LIABILITIES.  SUCH APPLICATION SHALL FURTHER CONTAIN THE AGE AND
RESIDENCE OF APPLICANT INCLUDING PLACES OF RESIDENT OF APPLICANT FOR
PAST TEN YEARS; AND AS WELL AS BUSINESS OR PROFESSION IN WHICH SUCH
APPLICANT HAS BEEN ENGAGED DURING SAID TIME, AND SHALL FURNISH AT LEAST
THREE PERSONS AS REFERENCES TO APPLICANT'S CHARACTER.  SAID APPLICATION
SHALL ALSO FURNISH THE INFORMATION AS TO WHETHER APPLICANT IS A
SALARIED EMPLOYEE OF THE ORGANIZATION FOR WHICH HE IS SOLICITING
MEMBERS, AND WHAT COMPENSATION, IF ANY, HE RECEIVES FOR OBTAINING
MEMBERS. 

"SECTION III.  THIS APPLICATION SHALL BE SUBMITTED TO A REGULAR
MEETING OF MAYOR AND COUNCIL OF CITY OF BAXLEY, AND IN EVENT IT IS
DESIRED BY MAYOR AND COUNCIL TO INVESTIGATE FURTHER THE INFORMATION
GIVEN IN THE APPLICATION, OR IN THE EVENT THE APPLICANT DESIRES A
FORMAL HEARING ON SUCH APPLICATION, SUCH HEARING SHALL BE SET FOR A
TIME NOT LATER THAN THE NEXT REGULAR MEETING OF THE MAYOR AND COUNCIL
OF CITY OF BAXLEY.  AT SUCH HEARING THE APPLICANT MAY SUBMIT FOR
CONSIDERATION ANY EVIDENCE THAT HE MAY DESIRE BEARING ON THE
APPLICATION, AND ANY INTERESTED PERSONS SHALL HAVE THE RIGHT OF
APPEARING AND GIVING EVIDENCE TO THE CONTRARY. 

"SECTION IV.  IN PASSING UPON SUCH APPLICATION THE MAYOR AND COUNCIL
SHALL CONSIDER THE CHARACTER OF THE APPLICANT, THE NATURE OF THE
BUSINESS OF THE ORGANIZATION FOR WHICH MEMBERS ARE DESIRED TO BE
SOLICITED, AND ITS EFFECTS UPON THE GENERAL WELFARE OF CITIZENS OF THE
CITY OF BAXLEY. 

"SECTION V. THE GRANTING OR REFUSING TO GRANT OF SUCH APPLICATION FOR
A PERMIT SHALL BE DETERMINED BY VOTE OF MAYOR AND COUNCIL, AFTER
CONSIDERATION AND HEARING IF SAME IS REQUESTED BY APPLICANT OR MAYOR
AND COUNCIL, IN THE SAME MANNER AS OTHER MATTERS ARE SO GRANTED OR
DENIED BY THE VOTE OF THE MAYOR AND COUNCIL. 

"SECTION VI.  IN THE EVENT THAT PERSONS MAKING APPLICATION IS
SALARIED EMPLOYEE OR OFFICER OF THE ORGANIZATION FOR WHICH HE DESIRES
TO SEEK MEMBERS AMONG THE CITIZENS OF BAXLEY, OR PERSONS EMPLOYED IN
THE CITY OF BAXLEY, OR RECEIVED A FEE OF ANY SORT FROM THE OBTAINING OF
SUCH MEMBERS, HE SHALL BE ISSUED A PERMIT AND LICENSE FOR SOLICITING
SUCH MEMBERS UPON THE PAYMENT OF $2,000.00 PER YEAR.  ALSO $500.00 FOR
EACH MEMBER OBTAINED. 

"SECTION VII.  ANY PERSON, PERSONS, FIRM, OR CORPORATION SOLICITING
MEMBERS FOR ANY ORGANIZATION FROM AMONG THE CITIZENS OR PERSONS
EMPLOYED IN THE CITY OF BAXLEY WITHOUT FIRST OBTAINING A PERMIT AND
LICENSE THEREFOR SHALL BE PUNISHED AS PROVIDED BY SECTION 85 OF THE
CRIMINAL CODE OF CITY OF BAXLEY. 

"SECTION VIII.  ALL ORDINANCES OF CITY OF BAXLEY IN CONFLICT WITH
(THIS) ORDINANCE ARE HEREBY REPEALED. 

"SECTION IX.  SHOULD ANY SECTION OR PORTION OF THIS ORDINANCE BE HELD
VOID, IT SHALL NOT AFFECT THE REMAINING SECTIONS AND PORTIONS OF
SAME." 

FN2  THIS REFERENCE OBVIOUSLY WAS TO THE NATIONAL LABOR RELATIONS
BOARD AS GEORGIA HAS NO COMPARABLE AGENCY. 

FN3  DURING THAT CONTINUANCE, APPELLANT BROUGHT AN ACTION IN THE
SUPERIOR COURT OF THE COUNTY ASKING AN INJUNCTION AGAINST ENFORCEMENT
OF THE ORDINANCE AND A DECLARATION OF ITS INVALIDITY.  THE SUPERIOR
COURT FOUND AGAINST PETITIONER AND ON APPEAL THE SUPREME COURT OF THE
STATE AFFIRMED, HOLDING THAT "IF THE ORDINANCE IS INVALID, BY REASON OF
ITS UNCONSTITUTIONALITY, OR FOR OTHER CAUSE, SUCH INVALIDITY WOULD BE A
COMPLETE DEFENSE TO ANY PROSECUTION THAT MIGHT BE INSTITUTED FOR ITS
VIOLATION."  STAUB V. MAYOR OF BAXLEY, 211 GA. 1, 2, 83 S.E.2D 606,
608. 

FN4  MAMIE MERRITT WAS ALSO CHARGED WITH THE SAME OFFENSE AND WAS
TRIED WITH APPELLANT AND WAS LIKEWISE CONVICTED AND GIVEN THE SAME
SENTENCE, BUT IT HAS BEEN STIPULATED THAT THE JUDGMENT OF CONVICTION
AGAINST HER SHALL AWAIT, AND CONFORM WITH, THE RESULT OF THIS APPEAL. 

FN5  FOR THAT REASON WE ARE NOT HERE CONFRONTED WITH ANY QUESTION
CONCERNING THE RIGHT OF THE CITY TO REGULATE THE PURSUIT OF AN
OCCUPATION.  CF. THOMAS V. COLLINS, 323 U.S. 516. 

FN6  THE ORDINANCE INVOLVED IN THAT CASE PROSCRIBED THE DISTRIBUTION
OF LITERATURE IN THE CITY OF GRIFFIN "WITHOUT FIRST OBTAINING WRITTEN
PERMISSION FROM THE CITY MANAGER  ...  ," WHICH HE MIGHT GRANT OR
WITHHOLD IN HIS DISCRETION.  303 U.S., AT 447.   THIS COURT, IN
REVERSING A CONVICTION UNDER THAT ORDINANCE, SAID:  "LEGISLATION OF THE
TYPE OF THE ORDINANCE IN QUESTION WOULD RESTORE THE SYSTEM OF LICENSE
AND CENSORSHIP IN ITS BALDEST FORM."  ID., AT 452. 

FN7  THERE THE ORDINANCE PROSCRIBED THE LEASING OF A HALL FOR A
PUBLIC SPEECH OR THE HOLDING OF PUBLIC MEETINGS "WITHOUT A PERMIT FROM
THE CHIEF OF POLICE."  307 U.S., AT 501.  MEMBERS OF A LABOR UNION
SOUGHT PERMISSION TO HOLD PUBLIC MEETINGS IN THE CITY FOR THE
"ORGANIZATION OF UNORGANIZED WORKERS INTO LABOR UNIONS."  ID., AT 504. 
PERMISSION WAS REFUSED ON THE GROUND THAT SUCH MEETINGS WOULD CAUSE
DISORDER.  THEY THEN SOUGHT AND OBTAINED AN INJUNCTION PROHIBITING THE
CITY FROM INTERFERING WITH THEIR RIGHTS OF FREE SPEECH AND PEACEABLE
ASSEMBLY.  THIS CASE CAME HERE ON CERTIORARI AND THIS COURT AFFIRMED. 
IN THE COURSE OF HIS OPINION, MR. JUSTICE ROBERTS SAID THE ORDINANCE
WAS "VOID UPON ITS FACE" AND THAT "  ...  UNCONTROLLED OFFICIAL
SUPPRESSION (OF FREE SPEECH AND PEACEABLE ASSEMBLY) CANNOT BE MADE A
SUBSTITUTE FOR THE DUTY TO MAINTAIN ORDER IN CONNECTION WITH THE
EXERCISE OF THE RIGHT."  ID., AT 516. 

FN8  THERE AN ORDINANCE OF IRVINGTON, NEW JERSEY, IN EFFECT BANNED
"COMMUNICATION OF ANY VIEWS OR THE ADVOCACY OF ANY CAUSE FROM DOOR TO
DOOR" (308 U.S., AT 163), WITHOUT "A WRITTEN PERMIT FROM THE CHIEF OF
POLICE  ...  ."  ID., AT 157.  THE COURT HELD THE ORDINANCE INVALID AS
A PRIOR RESTRAINT UPON FIRST AMENDMENT RIGHTS AND SAID THAT SUCH AN
ORDINANCE "STRIKES AT THE VERY HEART OF THE CONSTITUTIONAL
GUARANTEES."  ID., AT 164. 

FN9  THIS COURT SAID:  "THE MAYOR ISSUES A PERMIT ONLY IF AFTER
THOROUGH INVESTIGATION HE 'DEEMS IT PROPER OR ADVISABLE.'  DISEMINATION
OF IDEAS DEPENDS UPON THE APPROVAL OF THE DISTRIBUTOR BY THE OFFICIAL. 
THIS IS ADMINISTRATIVE CENSORSHIP IN AN EXTREME FORM.  IT ABRIDGES THE
FREEDOM OF RELIGION, OF THE PRESS AND OF SPEECH GUARANTEED BY THE
FOURTEENTH AMENDMENT."  318 U.S., AT 422. 

FN10  CHIEF JUSTICE STONE SAID:  "HERE IT IS THE PROHIBITION OF
PUBLICATION, SAVE AT THE UNCONTROLLED WILL OF PUBLIC OFFICIALS, WHICH
TRANSGRESSES CONSTITUTIONAL LIMITATIONS AND MAKES THE ORDINANCE VOID ON
ITS FACE."  316 U.S., AT 602. 

FN11  THERE THE CITY ALLOWED USE OF ITS PARK FOR PUBLIC MEETINGS, BUT
BY CUSTOM A PERMIT WAS REQUIRED FROM ITS PARK COMMISSIONER.  A
RELIGIOUS GROUP KNWON AS JEHOVAH'S WITNESSES SCHEDULED SEVERAL BIBLE
TALKS TO BE HELD IN THE CITY PARK.  THEY APPLIED FOR A PERMIT TO DO SO,
BUT IT WAS REFUSED.  LATER THEY PROCEEDED TO HOLD SUCH A MEETING
WITHOUT A PERMIT AND WHEN NIEMOTKO OPENED THE MEETING HE WAS ARRESTED
AND LATER CONVICTED FOR DISTURBING THE PEACE, THOUGH THE MEETING WAS
ORDERLY AND THE REAL CAUSE WAS THE FAILURE TO HAVE A PERMIT.  THIS
COURT REVERSED.  AFTER POINTING OUT THERE WERE NO STANDARDS GOVERNING
THE DISCRETION OF THE PARK COMMISSIONER IN GRANTING OR REFUSING SUCH
PERMITS AND REFERRING TO HAGUE V. C.I.O., SUPRA; LOVELL V. GRIFFIN,
SUPRA, AND OTHER CASES, IT SAID:  "IT IS CLEAR THAT ALL THAT HAS BEEN
SAID ABOUT THE INVALIDITY OF SUCH LIMITLESS DISCRETION MUST BE EQUALLY
APPLICABLE HERE  ...  .  THE RIGHT TO EQUAL PROTECTION OF THE LAWS, IN
THE EXERCISE OF THOSE FREEDOMS OF SPEECH AND RELIGION PROTECTED BY THE
FIRST AND FOURTEENTH AMENDMENTS, HAS A FIRMER FOUNDATION THAN THE WHIMS
OR PERSONAL OPINIONS OF A LOCAL GOVERNING BODY."  340 U.S., AT 272. 

FN12  THERE IT WAS SAID:  "THIS INTERPRETATION ALLOWS THE POLICE
COMMISSIONER, AN ADMINISTRATIVE OFFICIAL, TO EXERCISE DISCRETION IN
DENYING SUBSEQUENT PERMIT APPLICATIONS (TO HOLD OUTDOOR RELIGIOUS
MEETINGS) ON THE BASIS OF HIS INTERPRETATION, AT THAT TIME, OF WHAT IS
DEEMED TO BE CONDUCT CONDEMNED BY THE ORDINANCE.  WE HAVE HERE, THEN,
AN ORDINANCE WHICH GIVES AN ADMINISTRATIVE OFFICIAL DISCRETIONARY POWER
TO CONTROL IN ADVANCE THE RIGHT OF CITIZENS TO SPEAK ON RELIGIOUS
MATTERS ON THE STREETS OF NEW YORK.  AS SUCH, THE ORDINANCE IS CLEARLY
INVALID AS A PRIOR RESTRAINT ON THE EXERCISE OF FIRST AMENDMENT
RIGHTS."  340 U.S., AT 293. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

THIS IS ONE OF THOSE SMALL CASES THAT CARRY LARGE ISSUES, FOR IT
CONCERNS THE ESSENCE OF OUR FEDERALISM - DUE REGARD FOR THE
CONSTITUTIONAL DISTRIBUTION OF POWER AS BETWEEN THE NATION AND THE
STATES, AND MORE PARTICULARLY THE DISTRIBUTION OF JUDICIAL POWER AS
BETWEEN THIS COURT AND THE JUDICIARIES OF THE STATES.  (FN1) 

AN ORDINANCE OF THE CITY OF BAXLEY, GEORGIA, (FN2) PROVIDES THAT
ANYONE WHO SEEKS TO SOLICIT MEMBERS FOR ANY ORGANIZATION REQUIRING THE
PAYMENT OF DUES SHALL FIRST APPLY TO THE MAYOR AND COUNCIL OF BAXLEY
FOR A PERMIT TO CARRY ON SUCH SOLICITATION.  THE ORDINANCE FURTHER
PROVIDES A DETAILED PROCEDURE FOR MAKING THE APPLICATION, STANDARDS FOR
GRANTING THE PERMIT, THE FEE TO BE CHARGED, AND SANCTIONS FOR FAILURE
TO COMPLY WITH THE ORDINANCE.  APPELLANT WAS ARRESTED FOR VIOLATION OF
THE ORDINANCE AND WAS ORDERED TO APPEAR BEFORE THE MAYOR'S COURT OF THE
CITY.  BY A PLEA IN ABATEMENT SHE ATTACKED THE ORDINANCE AS IN CONFLICT
WITH PROVISIONS OF THE STATE AND THE UNITED STATES CONSTITUTIONS AND
WITH THE NATIONAL LABOR RELATIONS ACT.  (FN3)  HER PLEA WAS OVERRULED,
AND THE CAUSE PROCEEDED TO TRIAL.  THE UNDISPUTED EVIDENCE ESTABLISHED
THAT APPELLANT WAS AN EMPLOYEE OF THE INTERNATIONAL LADIES' GARMENT
WORKERS UNION, AN ORGANIZATION THAT REQUIRED DUES OF ITS MEMBERS, THAT
SHE WAS SOLICITING MEMBERS FOR THE UNION IN BAXLEY, AND THAT SHE HAD
NOT APPLIED FOR A PERMIT AS REQUIRED BY THE CITY ORDINANCE.  APPELLANT
WAS CONVICTED AND SENTENCED TO PAY A FINE OF $300 OR SERVE 30 DAYS IN
THE CITY JAIL. 

APPELLANT APPLIED TO THE SUPERIOR COURT OF THE COUNTY FOR A WRIT OF
CERTIORARI, REPEATING THE CONTENTIONS SHE HAD MADE IN HER PLEA IN
ABATEMENT.  THE CAUSE WAS TRIED DE NOVO BY THE COURT WITHOUT A JURY AND
THE JUDGMENT OF THE MAYOR'S COURT WAS AFFIRMED. 

ON WRIT OF ERROR, THE GEORGIA COURT OF APPEALS REVIEWED THE JUDGMENT
OF THE SUPERIOR COURT.  IT NOTED THAT APPELLANT HAD MADE NO EFFORT TO
SECURE A PERMIT AND THAT HER CONSTITUTIONAL ATTACK SHOULD HAVE BEEN
MADE SPECIFICALLY AGAINST A PARTICULAR SECTION OR SECTIONS OF THE
ORDINANCE AND NOT AGAINST THE ORDINANCE AS A WHOLE.  ON THIS DOCTRINE
OF GEORGIA APPELLATE PROCEDURE IT CITED ANTHONY V. CITY OF ATLANTA, 66
GA. APP. 504, 505, 18 S.E.2D 81-82, WHICH IN TURN CITED GLOVER V. CITY
OF ROME, 173 GA. 239, 160 S.E. 249, AND CONCLUDED THAT THE ISSUE OF THE
CONSTITUTIONALITY OF THE ORDINANCE HAD NOT BEEN PROPERLY RAISED. 
ACCORDINGLY, THE COURT OF APPEALS SUSTAINED THE CONVICTION.   94 GA.
APP.  18, 93 S.E.2D 375.  THE SUPREME COURT OF GEORGIA DENIED
APPELLANT'S APPLICATION FOR A WRIT OF CERTIORARI, AND THE CASE CAME
HERE ON APPEAL FROM THE COURT OF APPEALS OF GEORGIA.    THE
JURISDICTIONAL BASIS FOR THIS APPEAL IS 28 U.S.C. SEC. 1257, WHICH HAD
ITS ORIGIN IN THE FAMOUS TWENTY-FIFTH SECTION OF THE ACT OF SEPTEMBER
24, 1789, 1 STAT. 73, 85.  THAT SEEMINGLY TECHNICAL PROCEDURAL
PROVISION OF THE FIRST JUDICIARY ACT HAS SERVED AS ONE OF THE MOST
NATIONALIZING FORCES IN OUR HISTORY.  BY THAT SECTION, AS CONSTRUED IN
MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304, STRONGLY REINFORCED BY COHENS
V. VIRGINIA, 6 WHEAT.  264, THE DENIAL OF A CLAIM OF A FEDERAL RIGHT IN
THE FINAL JUDGMENT OF THE HIGHEST AVAILABLE COURT OF A STATE COULD BE
BROUGHT FOR REVIEW AT THE BAR OF THIS COURT.  THIS AMENABILITY OF STATE
ACTION TO THE JUDICIAL ARBITRAMENT OF THE NATION'S SUPREME COURT HAS
BEEN RECOGNIZED BY LEADING HISTORIANS AS ONE OF THE SHAPING INFLUENCES
IN THE FUSION OF THE STATES INTO A NATION.  NATURALLY ENOUGH, VIGOROUS
EFFORTS WERE MADE, BOTH BEFORE AND AFTER THE CIVIL WAR, TO REPEAL SEC.
25, BUT WITHOUT AVAIL.  SEE WARREN, LEGISLATIVE AND JUDICIAL ATTACKS ON
THE SUPREME COURT OF THE UNITED STATES, A HISTORY OF THE TWENTY-FIFTH
43, 21ST CONG., 2D SESS.; HART AND WECHSLER, "NOTE ON THE ATTACKS UPON
THE JURISDICTION," THE FEDERAL COURTS AND THE FEDERAL SYSTEM, 418.  THE
POWER OF THIS COURT TO REVIEW DENIALS BY STATE COURTS OF FEDERAL CLAIMS
HAS NEVER BEEN QUALIFIED.  (FN4) 

WHILE THE POWER TO REVIEW THE DENIAL BY A STATE COURT OF A
NONFRIVOLOUS CLAIM UNDER THE UNITED STATES CONSTITUTION HAS BEEN
CENTERED IN THIS COURT, CARRYING WITH IT THE RESPONSIBILITY TO SEE THAT
THE OPPORTUNITY TO ASSERT SUCH A CLAIM BE NOT THWARTED BY ANY LOCAL
PROCEDURAL DEVICE, EQUALLY IMPORTANT IS OBSERVANCE BY THIS COURT OF THE
WIDE DISCRETION IN THE STATES TO FORMULATE THEIR OWN PROCEDURES FOR
BRINGING ISSUES APPROPRIATELY TO THE ATTENTION OF THEIR LOCAL COURTS,
EITHER IN SHAPING LITIGATION OR BY APPEAL.  SUCH METHODS AND PROCEDURES
MAY, WHEN JUDGED BY THE BEST STANDARDS OF JUDICIAL ADMINISTRATION,
APPEAR CRUDE, AWKWARD AND EVEN FINICKY OR UNNECESSARILY FORMAL WHEN
JUDGED IN THE LIGHT OF MODERN EMPHASIS ON INFORMALITY.  BUT SO LONG AS
THE LOCAL PROCEDURE DOES NOT DISCRIMINATE AGAINST THE RAISING OF
FEDERAL CLAIMS AND, IN THE PARTICULAR CASE, HAS NOT BEEN USED TO STIFLE
A FEDERAL CLAIM TO PREVENT ITS EVENTUAL CONSIDERATION HERE, THIS COURT
IS POWERLESS TO DENY TO A STATE THE RIGHT TO HAVE THE KIND OF JUDICIAL
SYSTEM IT CHOOSES AND TO ADMINISTER THAT SYSTEM IN ITS OWN WAY.  IT IS
OF COURSE FOR THIS COURT TO PASS ON THE SUBSTANTIVE SUFFICIENCY OF A
CLAIM OF FEDERAL RIGHT, FIRST NATIONAL BANK V. ANDERSON, 269 U.S. 341,
346, BUT IF RESORT IS HAD IN THE FIRST INSTANCE TO THE STATE JUDICIARY
FOR THE ENFORCEMENT OF A FEDERAL CONSTITUTIONAL RIGHT, THE STATE IS NOT
BARRED FROM SUBJECTING THE SUIT TO THE SAME PROCEDURES, NISI PRIUS
(FN5) AND APPELLATE, THAT GOVERN ADJUDICATION OF ALL CONSTITUTIONAL
ISSUES IN THAT STATE.  EDELMAN V. CALIFORNIA, 344 U.S. 357; PARKER V.
ILLINOIS, 333 U.S. 571.  IN NICKEL V. COLE, 256 U.S. 222, 225, WE SAID,
"WHEN AS HERE THERE CAN BE NO PRETENCE THAT THE (STATE) COURT ADOPTED
ITS VIEW IN ORDER TO EVADE A CONSTITUTIONAL ISSUE, AND THE CASE HAS
BEEN DECIDED UPON GROUNDS THAT HAVE NO RELATION TO ANY FEDERAL
QUESTION, THIS COURT ACCEPTS THE DECISION WHETHER RIGHT OR WRONG." 

THE RELEVANCE OF A STATE PROCEDURE REQUIRING THAT CONSTITUTIONAL
ISSUES BE PRESENTED IN THEIR NARROWEST POSSIBLE SCOPE IS CONFIRMED BY
THE PRACTICE OF THIS COURT.  THE COURT HAS LONG INSISTED, CERTAINLY IN
PRECEPT, ON RIGOROUS REQUIREMENTS THAT MUST BE FULFILLED BEFORE IT WILL
PASS ON THE CONSTITUTIONALITY OF LEGISLATION, ON AVOIDANCE OF SUCH
DETERMINATIONS EVEN BY STRAINED STATUTORY CONSTRUCTION, AND ON KEEPING
CONSTITUTIONAL ADJUDICATION, WHEN UNAVOIDABLE, AS NARROW AS
CIRCUMSTANCES WILL PERMIT.  SEE THE CLASSIC STATEMENT OF THE UNANIMOUS
COURT IN LIVERPOOL, N.Y.&P.S.S. CO. V. COMMISSIONERS OF EMIGRATION, 113
U.S. 33, 39, AND "A SERIES OF RULES," DRAWN FROM A LONG SEQUENCE OF
PRIOR DECISIONS BY MR. JUSTICE BRANDEIS, IN HIS WELL-KNOWN CONCURRING
OPINION, FREQUENTLY CITED AND ALWAYS APPROVINGLY, IN ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 346-348.  EVEN THOUGH ITS
ACTION MAY RESULT IN THE DISADVANTAGES AND EMBARRASSMENTS OF KEEPING
OPEN DOUBTFUL QUESTIONS OF CONSTITUTIONALITY, THIS COURT WILL CONSIDER
ONLY THOSE VERY LIMITED ASPECTS OF A STATUTE THAT ALONE MAY AFFECT THE
RIGHTS OF A PARTICULAR LITIGANT BEFORE THE COURT.  SEE MUSKRAT V.
UNITED STATES, 219 U.S. 346, 361-362; MASSACHUSETTS V. MELLON, 262 U.S.
447.  A STATUTE MAY BE FOUND INVALID IN SOME OF ITS PARTS BUT VALID IN
OTHERS, SEE DORCHY V. KANSAS, 264 U.S. 286, 289-290; IT MAY BE VALID AT
ONE TIME AND NOT ANOTHER, SEE CHASTLETON CORP. V. SINCLAIR, 264 U.S.
543, 547-548; IT MAY BE VALID UNDER ONE STATE OF FACTS BUT NOT ANOTHER,
SEE KANSAS CITY SOUTHERN R. CO. V. ANDERSON, 233 U.S. 325, 329-330; IT
MAY BE VALID AS TO ONE CLASS OF PERSONS AND INVALID AS TO OTHERS, SEE
NEW YORK EX REL.  HATCH V. REARDON, 204 U.S. 152, 160-161.  IT IS
BECAUSE THE EXERCISE OF THE RIGHT TO DECLARE A LAW UNCONSTITUTIONAL IS
"THE MOST IMPORTANT AND DELICATE DUTY OF THIS COURT," AND BECAUSE THAT
RIGHT "IS NOT GIVEN TO THE COURT  ...  AS A BODY WITH REVISORY POWER
OVER THE ACTION OF CONGRESS," MUSKRAT V. UNITED STATES, SUPRA, AT 361,
NOR, IT MAY BE ADDED, OVER THE ACTION OF THE FORTY-EIGHT STATES, THAT
THIS COURT HAS FROM THE BEGINNING DEMANDED OF LITIGANTS THAT THEY SHOW
IN PRECISELY WHAT WAY AND TO WHAT EXTENT INCURSIONS HAVE BEEN MADE INTO
THEIR FEDERALLY PROTECTED RIGHTS AND RULES HAVE BEEN DEVELOPED DESIGNED
TO NARROW AS CLOSELY AS POSSIBLE THE ISSUES PRESENTED BY SUCH CLAIMS. 
SURELY A STATE COURT IS NOT TO BE DENIED THE LIKE RIGHT TO PROTECT
ITSELF FROM THE NECESSITY - SOMETIMES EVEN THE TEMPTATION - OF
ADJUDICATING OVERLY BROAD CLAIMS OF UNCONSTITUTIONALITY.  SURELY IT CAN
INSIST THAT SUCH CLAIMS BE FORMULATED UNDER PRECISE (EVEN IF, IN OUR
VIEW, NEEDLESSLY PARTICULARIZED) REQUIREMENTS AND RESTRICTED TO THE
LIMITED ISSUES THAT CONCRETE AND IMMEDIATELY PRESSING CIRCUMSTANCES MAY
RAISE. 

AN EXAMINATION OF THE WHOLE COURSE OF GEORGIA DECISIONS LEAVES ONE
WITH THE CLEAR CONVICTION THAT THE PROCEDURAL RULE APPLIED BY THE COURT
OF APPEALS OF GEORGIA IN THIS CASE WAS INTENDED TO BE RESPONSIVE TO THE
SAME PROBLEMS THAT HAVE INFLUENCED THE IMPORTANT CONSIDERATIONS OF
JUDICIAL POLICY GOVERNING THE ADMINISTRATION OF THIS COURT'S BUSINESS. 
THE CASES RELIED UPON BY THE GEORGIA COURT IN THIS CASE ARE PART OF A
LONG LINE OF DECISIONS HOLDING A COMPREHENSIVE, ALL-INCLUSIVE CHALLENGE
TO THE CONSTITUTIONALITY OF A STATUTE INADEQUATE AND REQUIRING EXPLICIT
PARTICULARITY IN PLEADINGS IN ORDER TO RAISE CONSTITUTIONAL QUESTIONS. 
THOSE CASES REST ESSENTIALLY ON THE RECOGNITION OF THE GRAVITY OF
JUDICIAL INVALIDATION OF LEGISLATION.  SEE, E.G., DADE COUNTY V. STATE,
201 GA. 241, 245, 39 S.E.2D 473, 476-477.  THEY REQUIRE THE PLEADER TO
ALLEGE THE SPECIFIC PORTION OF THE CHALLENGED LEGISLATION.  THUS,
ALLEGATIONS OF UNCONSTITUTIONALITY DIRECTED AT A GROUP OF 16 SECTIONS
OF THE CRIMINAL CODE, ROOKS V. TINDALL, 138 GA. 863, 76 S.E.2D 378; A
SINGLE NAMED "LENGTHY SECTION" OF A STATUTE, CRAPP V. STATE, 148 GA.
150, 95 S.E.2D 993; A SINGLE SECTION OF A CITY CHARTER AMENDMENT,
GLOVER V. CITY OF ROME, 173 GA. 239, 160 S.E. 249; A NAMED ACT OF THE
GENERAL ASSEMBLY, WRIGHT V. CANNON, 185 GA. 363, 195 S.E.2D 168; AND A
5-SECTION CHAPTER OF THE CODE, RICHMOND CONCRETE PRODUCTS CO. V. WARD,
212 GA. 773, 95 S.E.2D 677, WERE HELD "TOO GENERAL" OR "TOO INDEFINITE"
TO RAISE CONSTITUTIONAL QUESTIONS BECAUSE OF THEIR FAILURE TO DEFINE
WITH PARTICULARITY WHAT PORTIONS OFFENDED CLAIMED CONSTITUTIONAL
RIGHTS.  THE GEORGIA RULE IS DESIGNED TO APPLY, WITHIN THIS TOUCHY
SCOPE OF CONSTITUTIONAL LITIGATION, THE REQUIREMENT OF THE GEORGIA
CODE, GA. CODE ANN., 1956, SEC. 81-101, THAT PLEADINGS SHALL "PLAINLY,
FULLY, AND DISTINCTLY" SET FORTH THE PLEADER'S CAUSE OF ACTION, SEE
RICHMOND CONCRETE PRODUCTS CO. V. WARD, SUPRA, AT 775, 95 S.E.2D, AT
679. 

THERE IS NOTHING FRIVOLOUS OR FUTILE (THOUGH IT MAY APPEAR "FORMAL")
ABOUT A RULE INSISTING THAT PARTIES SPECIFY WITH ARITHMETIC
PARTICULARITY THOSE PROVISIONS IN A LEGISLATIVE ENACTMENT THEY WOULD
ASK A COURT TO STRIKE DOWN.  THIS IS SO, BECAUSE SUCH EXACTITUDE HELPS
TO MAKE CONCRETE THE PLAINTIFFS' RELATION TO CHALLENGED PROVISIONS. 
FIRST, IT CALLS FOR CLOSER REFLECTION AND GREATER RESPONSIBILITY ON THE
PART OF ONE WHO CHALLENGES LEGISLATION, FOR, IN FORMULATING SPECIFIC
ATTACKS AGAINST EACH PROVISION FOR WHICH AN INFIRMITY IS CLAIMED, THE
PLEADER IS MORE LIKELY TO TEST HIS CLAIMS CRITICALLY AND TO RECONSIDER
THEM CAREFULLY THAN HE WOULD BE IF HE ADOPTED A "SCATTER-SHOT"
APPROACH.  SECONDLY, THE OPPOSING PARTY, IN RESPONDING TO A
PARTICULARIZED ATTACK, IS MORE LIKELY TO PLEAD IN SUCH A WAY AS TO
NARROW OR EVEN ELIMINATE CONSTITUTIONAL ISSUES, AS WHERE HE ADMITS THAT
A SPECIFIC CHALLENGED PROVISION IS INVALID.  (FN6)  FINALLY, WHERE THE
PARTIES IDENTIFY PARTICULAR LANGUAGE IN A STATUTE AS ALLEGEDLY
VIOLATING A CONSTITUTIONAL PROVISION, THE COURT WILL OFTEN BE ABLE TO
CONSTRUE THE WORDS IN SUCH A WAY AS TO RENDER THEM INOFFENSIVE.  THE
ORDINANCE INVOLVED IN THIS CASE MIGHT, FOR EXAMPLE, HAVE BEEN HELD
INAPPLICABLE TO THE TYPE OF ORGANIZATION TO WHICH APPELLANT BELONGS HAD
HER OBJECTIONS BEEN DIRECTED AT THE WORD "UNION" IN SEC. I; IT MIGHT
HAVE BEEN HELD TO PROVIDE FOR THE AUTOMATIC GRANTING OF A PERMIT UPON
REGISTRATION HAD APPELLANT'S OBJECTIONS BEEN DIRECTED SPECIFICALLY AT
THE STANDARD SET FORTH IN SEC. IV.  (FN7)  SOPHISTICATED AS SUCH A
CONSTRUCTION MIGHT APPEAR, IT WOULD HAVE ENTAILED LESS ASTUTE READING
THAN HAS BEEN RESORTED TO BY THIS COURT IN ITS AVOIDANCE OF
CONSTITUTIONAL ADJUDICATION. 

OF COURSE, EVEN IF THE GEORGIA RULE IS INTRINSICALLY REASONABLE AND
THUS ENTITLED TO RESPECT BY THIS COURT, WE MUST BE SURE THAT IT HAS NOT
BEEN APPLIED ARBITRARILY IN THE CASE BEFORE US. APPELLANT ATTACKS A
NINE-SECTION ORDINANCE WITH NINE CHARGES OF INVALIDITY, SEVERAL OF
WHICH (ALTHOUGH IT IS DIFFICULT TO SAY PRECISELY HOW MANY) INVOLVE
FEDERAL CLAIMS.  IT MAY BE - BUT IT CERTAINLY IS NOT CLEARLY SO - THAT
WITH LITTLE EXPENDITURE OF TIME AND EFFORT, AND WITH LITTLE RISK OF
MISREADING APPELLANT'S CHARGES, A COURT COULD DETERMINE EXACTLY WHAT IT
IS ABOUT THE BAXLEY ORDINANCE THAT ALLEGEDLY INFRINGES UPON APPELLANT'S
CONSTITUTIONAL RIGHTS.  BUT RULES ARE NOT MADE SOLELY FOR THE EASIEST
CASES THEY GOVERN.  THE FACT THAT THE REASON FOR A RULE DOES NOT
CLEARLY APPLY IN A GIVEN SITUATION DOES NOT ELIMINATE THE NECESSITY FOR
COMPLIANCE WITH THE RULE.  SO LONG AS A REASONABLE RULE OF STATE
PROCEDURE IS CONSISTENTLY APPLIED, SO LONG AS IT IS NOT USED AS A MEANS
FOR EVADING VINDICATION OF FEDERAL RIGHTS, SEE DAVIS V. WECHSLER, 263
U.S. 22, 24-25, IT SHOULD NOT BE REFUSED APPLICABILITY.  THERE IS NO
INDICATION WHATEVER IN THE CASE BEFORE US THAT THE GEORGIA COURT OF
APPEALS APPLIED THIS WELL-ESTABLISHED RULE OF PLEADING ARBITRARILY OR
INADVISEDLY; THIS CASE CANNOT BE SAID TO STAND OUT, AMONG THE MANY
CASES IN WHICH THE RULE HAS BEEN APPLIED, AS A DEVIATION FROM THE
NORM. 

THE LOCAL PROCEDURAL RULE WHICH CONTROLLED THIS CASE SHOULD NOT BE
DISREGARDED BY REASON OF A GROUP OF GEORGIA CASES WHICH, WHILE
RECOGNIZING AND REAFFIRMING THE RULE OF PLEADING RELIED ON BY THE COURT
OF APPEALS BELOW, SUGGEST A LIMITED QUALIFICATION.  IT APPEARS THAT
UNDER SPECIAL CIRCUMSTANCES, WHERE A GENERALIZED ATTACK IS MADE AGAINST
A STATUTE WITHOUT REFERENCE TO SPECIFIC PROVISIONS, THE COURT WILL
INQUIRE INTO THE VALIDITY OF THE ENTIRE BODY OF LEGISLATION
CHALLENGED.  THE CASES ON WHICH THE COURT RELIES AS ESTABLISHING THIS
AS THE PREVAILING RULE IN GEORGIA STRONGLY INDICATE THAT THIS APPROACH
WILL BE USED ONLY WHERE AN ALLEGATION OF UNCONSTITUTIONALITY CAN BE
DISPOSED OF (ONE WAY OR THE OTHER) RELATIVELY SUMMARILY AND NOT WHERE,
AS HERE, DIFFICULT ISSUES ARE RAISED.  IN THE ONLY CASE CITED BY THE
COURT IN WHICH THE GEORGIA SUPREME COURT OVERTURNED A STATUTE ON THE
BASIS OF GENERALIZED ALLEGATIONS, ATLANTIC LOAN CO. V. PETERSON, 181
GA. 266, 182 S.E. 15, THE RESULT WAS "PLAINLY APPARENT."  181 GA., AT
274, 182 S.E., AT 19.  IN THE OTHER CASES CITED, MILLER V. HEAD, 186
GA. 694, 198 S.E. 680; STEGALL V. SOUTHWEST GEORGIA REGIONAL HOUSING
AUTHORITY, 197 GA. 571, 30 S.E.2D 196; KRASNER V. RUTLEDGE, 204 GA.
380, 49 S.E.2D 864, AND FLYNN V. STATE, 209 GA. 519, 74 S.E.2D 461, THE
COURT GAVE VARYING DEGREES OF RECOGNITION TO THIS APPROACH, REFUSING
ALTOGETHER TO APPLY IT IN FLYNN, WHERE THE COURT DECLINED TO ACCEPT
"THE BURDEN OF EXAMINING THE ACT SECTION BY SECTION AND SENTENCE BY
SENTENCE."  209 GA., AT 522, 74 S.E.2D, AT 464.  CERTAINLY IT CANNOT BE
SAID THAT THE COURT OF APPEALS WAS OUT OF CONSTITUTIONAL BOUNDS IN
FAILING TO BRING THE INSTANT CASE WITHIN THE PURVIEW OF WHATEVER
EXCEPTION CAN BE SAID TO HAVE BEEN SPELLED OUT BY THESE CASES OR THAT
IT IS FOR THIS COURT TO FORMULATE EXCEPTIONS TO THE VALID GEORGIA RULE
OF PROCEDURE. 

THE RECORD BEFORE US PRESENTS NOT THE REMOTEST BASIS FOR ATTRIBUTING
TO THE GEORGIA COURT ANY DESIRE TO LIMIT THE APPELLANT IN THE FULLEST
OPPORTUNITY TO RAISE CLAIMS OF FEDERAL RIGHT OR TO PREVENT AN ADVERSE
DECISION ON SUCH CLAIMS IN THE GEORGIA COURT FROM REVIEW BY THIS
COURT.  CONSEQUENTLY, THIS COURT IS LEFT WITH NO PROPER CHOICE BUT TO
GIVE EFFECT TO THE RULE OF PROCEDURE ON THE BASIS OF WHICH THIS CASE
WAS DISPOSED OF BELOW.  "WITHOUT ANY DOUBT IT RESTS WITH EACH STATE TO
PRESCRIBE THE JURISDICTION OF ITS APPELLATE COURTS, THE MODE AND TIME
OF INVOKING THAT JURISDICTION, AND THE RULES OF PRACTICE TO BE APPLIED
IN ITS EXERCISE; AND THE STATE LAW AND PRACTICE IN THIS REGARD ARE NO
LESS APPLICABLE WHEN FEDERAL RIGHTS ARE IN CONTROVERSY THAN WHEN THE
CASE TURNS ENTIRELY UPON QUESTIONS OF LOCAL OR GENERAL LAW.  CALLAN V.
BRANSFORD, 139 U.S. 197; BROWN V. MASSACHUSETTS, 144 U.S. 573; JACOBI
V. ALABAMA, 187 U.S. 133; HULBERT V. CHICAGO, 202 U.S. 275, 281; NEWMAN
V. GATES, 204 U.S. 89; CHESAPEAKE & OHIO RAILWAY CO. V. MCDONALD, 214
U.S. 191, 195."  JOHN V. PAULLIN, 231 U.S. 583, 585.    THE APPEAL
SHOULD BE DISMISSED.    FN1  THE PECULIAR DEMANDS MADE UPON THE
JUDICIARY BY A FEDERAL SYSTEM SUCH AS OURS WERE RECENTLY INDICATED BY
THE CHIEF JUSTICE OF AUSTRALIA, SIR OWEN DIXON: 

"FEDERALISM IS A FORM OF GOVERNMENT THE NATURE OF WHICH IS SELDOM
ADEQUATELY UNDERSTOOD IN ALL ITS BEARINGS BY THOSE WHOSE FORTUNE IT IS
TO LIVE UNDER A UNITARY SYSTEM.  THE PROBLEMS OF FEDERALISM AND THE
CONSIDERATIONS GOVERNING THEIR SOLUTION ASSUME A DIFFERENT ASPECT OF
THOSE WHOSE LIVES ARE SPENT UNDER THE OPERATION OF A FEDERAL
CONSTITUTION, PARTICULARLY IF BY EDUCATION, PRACTICE AND STUDY THEY
HAVE BEEN BROUGHT TO THINK ABOUT THE CONSTITUTIONAL CONCEPTIONS AND
MODES OF REASONING WHICH BELONG TO FEDERALISM AS COMMONPLACE AND
FAMILIAR IDEAS.  A UNITARY SYSTEM PRESENTS NO ANALOGIES AND INDEED, ON
THE CONTRARY, IT FORMS A BACKGROUND AGAINST WHICH MANY OF THE
CONCEPTIONS AND DISTINCTIONS INHERENT IN FEDERALISM MUST STRIKE THE
MIND AS STRANGE AND EXOTIC REFINEMENTS."  O'SULLIVAN V. NOARLUNGA MEAT
LTD., 94 C.L.R. 367, 375 (1956). 

FN2  THE ORDINANCE IS SET FORTH IN FULL IN THE MARGIN OF THE OPINION
OF THE COURT IN THIS CASE, ANTE, P. 314. 

FN3  THE RELEVANT PORTIONS OF APPELLANT'S PLEA IN ABATEMENT ARE SET
FORTH IN AN APPENDIX TO THIS OPINION, P. 335, INFRA. 

FN4  IT WAS NOT ENLARGED UNTIL 1914, 38 STAT. 790, NOW 28 U.S.C. SEC.
1257 (3).  IT HAD BEEN ASSUMED THAT STATE COURTS WOULD NOT UNDULY
INVOKE A FEDERAL RIGHT TO CUT DOWN STATE AUTHORITY.  BUT JUDICIAL
ATTITUDES ON THE PART OF STATE COURTS TOWARD MODERN SOCIAL LEGISLATION
LED CONGRESS TO ESTABLISH A NEW PRINCIPLE OF APPELLATE CONTROL OVER
STATE COURTS BY CONFERRING ON THIS COURT JURISDICTION TO REVIEW
JUDGMENTS BY THE HIGHEST COURT OF A STATE UPHOLDING AS WELL AS DENYING
FEDERAL RIGHTS. 

MORE IMMEDIATELY RELEVANT IS THE FACT THAT, DESPITE THE CENTRALIZING
TENDENCY GENERATED BY THE OUTCOME OF THE CIVIL WAR, THIS COURT REJECTED
A VIGOROUS DRIVE TO EXTEND THE SCOPE OF OUR REVIEW SO AS TO COVER ALL
QUESTIONS IN THE RECORD, EVEN THOSE OF STATE CONCERN, WHERE THE CASE IS
PROPERLY HERE ON DENIAL OF SOME FEDERAL CLAIM.  THIS ATTEMPTED
EXTENSION WAS REJECTED AS A "RADICAL AND HAZARDOUS CHANGE OF A POLICY
VITAL IN ITS ESSENTIAL NATURE TO THE INDEPENDENCE OF THE STATE COURTS
...  ."  MURDOCK V. MEMPHIS, 20 WA., 590, 630. 

FN5  "WHILE IT IS TRUE THAT A SUBSTANTIVE FEDERAL RIGHT OR DEFENSE
DULY ASSERTED CANNOT BE LESSENED OR DESTROYED BY A STATE RULE OF
PRACTICE, YET THE CLAIM OF THE PLAINTIFF IN ERROR TO A FEDERAL RIGHT
NOT HAVING BEEN ASSERTED AT A TIME AND IN A MANNER CALLING FOR THE
CONSIDERATION OF IT BY THE STATE SUPREME COURT UNDER ITS ESTABLISHED
SYSTEM OF PRACTICE AND PLEADING, THE REFUSAL OF THE TRIAL COURT AND OF
THE SUPREME COURT TO ADMIT THE TESTIMONY TENDERED IN SUPPORT OF SUCH
CLAIM IS NOT A DENIAL OF A FEDERAL RIGHT WHICH THIS COURT CAN REVIEW,
BALDWIN V. KANSAS, 129 U.S. 52, OXLEY STAVE CO. V. BUTLER COUNTY, 166
U.S. 648  ...  ."  ATLANTIC COAST LINE R. CO. V. MIMS, 242 U.S. 532,
536-537. 

FN6  ONE OF THE MOST VULNERABLE PROVISIONS OF THIS ORDINANCE, THE
DRASTICALLY HIGH LICENSE FEE, WAS TAKEN OUT OF CONTROVERSY IN THIS SUIT
BY THE RESPONDENT'S ADMISSION OF ITS INVALIDITY.  IT IS NOT OUT OF
QUESTION THAT MORE SPECIFIC PLEADING MIGHT HAVE DRAWN SIMILAR
ADMISSIONS AS TO OTHER ALLEGEDLY OBJECTIONABLE PORTIONS OF THE
ORDINANCE. 

FN7  THUS, IT IS AN ALLOWABLE ASSUMPTION THAT THE GEORGIA COURT MIGHT
CONSTRUE SEC. VI SO AS TO MAKE IT PROVIDE THAT A PERSON IN APPELLANT'S
SITUATION NEED ONLY APPLY AND PAY A FEE IN ORDER TO OBTAIN THE PERMIT. 

       APPENDIX TO OPINION OF MR. JUSTICE

                  FRANKFURTER. 

PORTIONS OF APPELLANT'S PLEA IN ABATEMENT. 

"2.  DEFENDANT ALLEGES THAT THE PROSECUTION OF SAID CASE SHOULD BE
ABATED UPON THE GROUND THAT SAID ORDINANCE IS UNCONSTITUTIONAL AND VOID
FOR THE REASONS HEREINAFTER STATED. 

"(A)  DEFENDANT SHOWS THAT THE ORDINANCE WITH WHICH SHE IS CHARGED TO
HAVE VIOLATED SHOWS ON ITS FACE THAT IT IS REPUGNANT TO AND VIOLATIVE
OF THE 1ST AND 14TH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES
IN THAT IT PLACES A CONDITION PRECEDENT UPON, AND OTHERWISE UNLAWFULLY
RESTRICTS THE DEFENDANT'S FREEDOM OF SPEECH AS WELL AS FREEDOM OF THE
PRESS AND FREEDOM OF LAWFUL ASSEMBLY.  DEFENDANT SHOWS THAT THE RIGHT
TO ENGAGE IN ORGANIZING LABOR UNIONS IS AN INHERENT CONSTITUTIONAL
RIGHT CONSISTING OF SOLICITING MEMBERS BY POINTING OUT TO WORKERS THE
ADVANTAGE OF BELONGING TO LABOR UNIONS, SUCH SOLICITATION BEING DONE BY
WORD OF MOUTH, BY PAMPHLETS OR OTHER PUBLICATIONS AND BY HOLDING
MEETINGS OF THOSE DESIROUS TO BE INFORMED OF THE FACTS ABOUT LABOR
UNIONS.  DEFENDANT SHOWS THAT SUCH ACTS ARE RESTRICTED AND LIMITED BY
SAID ORDINANCE SO AS TO PLACE A CONDITION PRECEDENT, BY WAY OF THE
PAYMENT OF A LICENSE FEE, OR THE PRIVILEGE OF ENGAGING IN THE
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY. 

"(B)  DEFENDANT SHOWS THAT SAID ORDINANCE IS REPUGNANT TO AND
VIOLATIVE OF SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
AND TENDS TO CONTRAVENE SAID ACT AND THE PUBLIC POLICY OF THE UNITED
STATES AS CONTAINED IN SAID ACT BY ESTABLISHING UNWARRANTED CONDITIONS
UPON THE RIGHT OF DEFENDANT TO PARTICIPATE IN THE LABOR ACTIVITIES
SECURED BY THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, AND THE PUBLIC
POLICY OF THE UNITED STATES.  THUS THE ORDINANCE WHICH INTERFERES WITH
SUCH RIGHTS IS IN DIRECT CONFLICT WITH SUPERIOR FEDERAL LEGISLATION AND
IS THEREFORE UNCONSTITUTIONAL, NULL AND VOID. 

"(C)  DEFENDANT SHOWS THAT SAID ORDINANCE IS NOT A VALID ORDINANCE IN
THAT IT DENIES EQUAL PROTECTION OF THE LAWS TO DEFENDANT AND OTHERS
LIKE DEFENDANT IN THAT SAID ORDINANCE, WHICH REQUIRES THE PAYMENT OF
LARGE SUMS OF MONEY, IS FOUNDED UPON AN UNREASONABLE AND INVALID
CLASSIFICATION OF PERSONS WHICH MUST PAY THE CONFISCATORY FEE WHICH IS
SET OUT IN THE ORDINANCE.  SAID ORDINANCE MAKES THE PAYMENT OF THE FEE
CONDITIONAL UPON THE MERE FACT THAT A PERSON RECEIVES RENUMERATION FOR
HIS EFFORTS IN SOLICITING MEMBERSHIP IN AN ORGANIZATION.  SUCH
CLASSIFICATION IS NOT A REASONABLE CLASSIFICATION FOR IMPOSING THE
PAYMENT OF A FEE UPON DEFENDANT AND OTHERS SIMILARLY SITUATED. 

"(D)  DEFENDANT SHOWS THAT SAID ORDINANCE IS INVALID IN THAT IT SHOWS
ON ITS FACE THAT IT IS A REGULATORY MEASURE IMPOSING A FLAT TAX UPON A
PRIVILEGE WHICH IS EXCESSIVE IN AMOUNT.  THE SUMS OF MONEY CHARGED
UNDER SAID ORDINANCE ARE OF SUCH AMOUNT AS TO BE WHOLLY UNREASONABLE,
CONFISCATORY AND PROHIBITORY.  THE AMOUNTS OF MONEY CHARGED IN SAID
ORDINANCE ARE SO LARGE THAT IT COULD NOT REASONABLY BE PAID BY ANYONE
DESIRING TO ORGANIZE ANY SORT OF ORGANIZATION AND THEREFORE EXISTS
SOLELY TO PREVENT AND DEPRIVE DEFENDANT AND OTHERS LIKE DEFENDANT FROM
ORGANIZING MEMBERS IN THEIR ORGANIZATION AND EXERCISING RIGHTS
PREVIOUSLY HEREIN SET OUT.  THE ORDINANCE SHOWS ON ITS FACE THAT IT IS
PATENTLY A DEVICE INTENDED TO PREVENT ORGANIZATION WITHIN THE CITY
LIMITS IN BEHALF OF LABOR UNIONS.  IT IS A WELL KNOWN FACT THAT THIS
DAY AND TIME THAT LABOR UNIONS CONSTITUTE THE VAST MAJORITY OF
ORGANIZATIONS WHICH SEND PAID REPRESENTATIVES INTO COMMUNITIES FOR THE
PURPOSE OF ORGANIZING AND SOLICITING MEMBERSHIP.  THE ABOVE PURPOSES
ARE ILLEGAL AND IMPROPER AND IS A MISUSE AND ABUSE OF THE LAW-MAKING
POWERS OF THE PLAINTIFF CITY, BUT NEVERTHELESS WILL BE SUCCESSFUL IN
DEPRIVING DEFENDANT OF HER RIGHTS UNLESS THIS COURT DECLARES SAID
ORDINANCE NULL AND VOID. 

"(E)  DEFENDANT SHOWS THAT SAID ORDINANCE IS AN INVALID REGULATING IN
THAT IT LEAVES WITHIN THE DISCRETION OF THE MAYOR AND CITY COUNCIL,
WITH NO FORM OF APPEAL OR ANY OBJECTIVE OR DEFINITIVE STANDARDS, THE
REFUSAL OR GRANTING OF A LICENSE REQUIRED. 

"(F)  DEFENDANT SHOWS THAT SAID ORDINANCE IS VOID IN THAT THE SAME IS
REPUGNANT TO AND VIOLATIVE OF ARTICLE 1, SECTION 1, PARAGRAPH 3 OF THE
CONSTITUTION OF THE STATE OF GEORGIA IN THAT THE SAME IS NOT IMPARTIAL
BUT IS UNREASONABLE AND ARBITRARY AND CONTRAVENES SAID SECTION. 

"(G)  DEFENDANT SHOWS THAT SAID ORDINANCE IS UNCONSTITUTIONAL AND
VOID AS VIOLATIVE OF ARTICLE 1, SECTION 1, PARAGRAPH 3 OF THE
CONSTITUTION OF GEORGIA IN THAT DEFENDANT IS DEPRIVED OF HER LIBERTY
AND PROPERTY WITHOUT DUE PROCESS OF LAW. 

"(H)  DEFENDANT SHOWS THAT SAID ORDINANCE IS NOT A VALID ORDINANCE
ENACTED FOR ANY LEGITIMATE PURPOSE TO BENEFIT THE CITIZENS OF BAXLEY,
GEORGIA, BUT THAT SAID ORDINANCE ON ITS FACE SHOWS THAT IT IS
UNREASONABLE, CONFISCATORY, PROHIBITORY AND DISCRIMINATORY, AND THAT IT
EXISTS SOLELY FOR THE PURPOSE OF DEPRIVING AND DENYING DEFENDANT AND
OTHERS FROM ENGAGING IN A LAWFUL OCCUPATION AND THAT SAID ORDINANCE IS
FOR THE PURPOSE OF PREVENTING THE ORGANIZATION OF LABOR UNIONS WITHIN
THE CITY LIMITS OF BAXLEY, GEORGIA. 

"(I)  DEFENDANT AVERS THAT SAID ORDINANCE IS PATENTLY VOID IN THAT
THE SAME IS A MISUSE AND ABUSE OF THE POLICE POWER OF THE CITY OF
BAXLEY, GEORGIA, IN AN EFFORT TO DEPRIVE DEFENDANT AND OTHERS LIKE
DEFENDANT OF THEIR RIGHTS HEREIN REFERRED TO THROUGH THE SUBTERFUGE OF
A CITY ORDINANCE. 

"3.  DEFENDANT ALLEGES THAT BECAUSE OF THE AFORESAID REASONS SAID
ORDINANCE IS UNCONSTITUTIONAL AND VOID, AND SHOULD BE SO DECLARED BY
THE COURT, AND THE ACTION AGAINST DEFENDANT FOR VIOLATION THEREOF
ABATED." 
..END :






















LAWN V. UNITED STATES 355 U.S. 339 


NO. 9.  ARGUED OCTOBER 14, 1957 - DECIDED JANUARY 13, 1958 - 232 F.2D
589, AFFIRMED. 


INDICTMENTS RETURNED BY A GRAND JURY IN 1952, CHARGING PETITIONERS
WITH EVADING AND CONSPIRING TO EVADE FEDERAL INCOME TAXES, WERE
DISMISSED BY THE DISTRICT COURT ON THE GROUND THAT THEIR CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION HAD BEEN VIOLATED BY REQUIRING
THEM TO TESTIFY AND PRODUCE RECORDS BEFORE THAT GRAND JURY WHILE
CRIMINAL INFORMATIONS CHARGING TAX EVASIONS WERE PENDING AGAINST THEM,
WITHOUT BEING WARNED OF THEIR CONSTITUTIONAL PRIVILEGE.  IN 1953, THEY
WERE INDICTED BY ANOTHER GRAND JURY FOR SUBSTANTIALLY THE SAME
OFFENSES; AND THEY WERE CONVICTED IN A FEDERAL COURT.  BOTH BEFORE AND
AT THE BEGINNING OF THEIR TRIAL, THEY MOVED (1) FOR A HEARING TO
DETERMINE WHETHER, IN PROCURING THE INDICTMENT, THE GOVERNMENT HAD USED
TESTIMONY GIVEN OR DOCUMENTS PRODUCED BY THEM BEFORE THE 1952 GRAND
JURY OR LEADS AND CLUES FURNISHED THEREBY, AND (2) TO SUPPRESS THE USE
AT THE TRIAL OF ALL SUCH EVIDENCE AND ALL EVIDENCE DERIVED THEREFROM. 
THE COURT DENIED THESE MOTIONS, BUT SAID THAT, IF DURING THE TRIAL
PETITIONERS HAD REASON TO BELIEVE THAT ILLEGALLY OBTAINED MATERIAL WAS
BEING OR MIGHT BE USED AGAINST THEM, THEY COULD OBJECT AT THAT TIME. 
ON APPEAL, THEY CHALLENGED THE VALIDITY OF THEIR CONVICTIONS BECAUSE OF
DENIAL OF THESE MOTIONS AND ON OTHER GROUNDS.  HELD: THE CONVICTIONS
ARE SUSTAINED.  PP. 341-363. 

1.  IN THE CIRCUMSTANCES OF THIS CASE, PETITIONERS WERE NOT ENTITLED
TO A PRELIMINARY HEARING TO ENABLE THEM TO SATISFY THEIR UNSUPPORTED
SUSPICIONS THAT THE 1953 GRAND JURY WHICH RETURNED THIS INDICTMENT HAD
MADE DIRECT OR DERIVATIVE USE OF THE MATERIALS THEY HAD PRODUCED BEFORE
THE 1952 GRAND JURY.  PP. 348-350. 

(A)  PETITIONERS HAD LAID NO FOUNDATION FOR THE HOLDING OF SUCH A
PRELIMINARY HEARING.  PP. 348-349. 

(B)  AN INDICTMENT RETURNED BY A LEGALLY CONSTITUTED UNBIASED GRAND
JURY, IF VALID ON ITS FACE, IS ENOUGH TO CALL FOR A TRIAL OF THE CHARGE
ON THE MERITS AND SATISFIES THE REQUIREMENTS OF THE FIFTH AMENDMENT. 
PP. 349-350. 

2.  RECEIPT IN EVIDENCE AT THE TRIAL OF A PHOTOSTATIC COPY OF A
CANCELED CHECK AND ITS CORRESPONDING CHECK STUB, OBTAINED FROM
PETITIONER LAWN IN THE 1952 GRAND JURY PROCEEDING, DID NOT DEPRIVE HIM
OF DUE PROCESS IN VIOLATION OF THE FIFTH AMENDMENT, BECAUSE IT APPEARS
FROM THE RECORD THAT HIS COUNSEL CONSCIOUSLY AND INTENTIONALLY WAIVED
ANY OBJECTION TO THEIR RECEIPT IN EVIDENCE.  PP. 350-355. 

(A)  IN THE CIRCUMSTANCES OF THIS CASE, DENIAL OF PETITIONERS'
PRETRIAL MOTION TO SUPPRESS THE USE IN EVIDENCE OF MATERIALS OBTAINED
FROM PETITIONERS IN THE 1952 GRAND JURY PROCEEDING DID NOT PRESERVE
LAWN'S OBJECTIONS TO THESE EXHIBITS WHEN HIS COUNSEL CONSCIOUSLY AND
INTENTIONALLY WAIVED OBJECTION TO THEM.  PP. 353-354. 

(B)  THE GOVERNMENT HAS FILED IN THIS COURT WHAT IS SAID TO BE A
TRANSCRIPT OF A HEARING ACCORDED LAWN AT HIS REQUEST IN 1952, WHICH IT
SAYS CONTAINS PHOTOSTATIC COPIES OF THE CHECK AND CHECK STUB IN
QUESTION VOLUNTARILY PRODUCED BY HIM; BUT HIS MOTION TO STRIKE THE
TRANSCRIPT AND THE PORTIONS OF THE GOVERNMENT'S BRIEF RELATING THERETO
IS SUSTAINED, AS THIS COURT LOOKS ONLY TO THE CERTIFIED RECORD IN
DECIDING QUESTIONS PRESENTED.  P. 354. 

3.  ON THE RECORD IN THIS CASE, THERE IS NO FACTUAL BASIS FOR
PETITIONERS' CONTENTION THAT THEY WERE DENIED AN OPPORTUNITY TO EXAMINE
AND CROSS-EXAMINE WITNESSES AT THE TRIAL TO DETERMINE WHETHER EVIDENCE
DERIVED FROM LEADS AND CLUES FURNISHED BY MATERIALS OBTAINED FROM THEM
IN THE 1952 GRAND JURY PROCEEDINGS WAS USED BY THE PROSECUTION AT THE
TRIAL, AND THAT THIS DEPRIVED THEM OF DUE PROCESS IN VIOLATION OF THE
FIFTH AMENDMENT.  PP. 355-358. 

4.  THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE CONVICTIONS OF
PETITIONERS LAWN AND LIVORSI.  PP. 358-362. 

5.  ON THE RECORD IN THIS CASE, PETITIONER LAWN WAS NOT DEPRIVED OF A
FAIR TRIAL BY A STATEMENT MADE BY GOVERNMENT COUNSEL IN HIS CLOSING
SUMMATION TO THE JURY THAT, "WE VOUCH FOR ROTH AND LUBBEN BECAUSE WE
THINK THEY ARE TELLING THE TRUTH."  P. 359, N, 15. 

6.  THE CONTENTION OF PETITIONERS GIGLIO AND LIVORSI THAT THE TRIAL
COURT ERRED IN DENYING THEIR MOTION FOR PRODUCTION OF LUBBEN'S FEDERAL
INCOME TAX RETURN FOR 1946, ALL TESTIMONY GIVEN BY HIM BEFORE THE GRAND
JURY AND ALL WRITTEN STATEMENTS MADE BY HIM TO ANY AGENT OF THE
GOVERNMENT, IS NOT PROPERLY BEFORE THIS COURT, BECAUSE THAT ISSUE WAS
NOT RAISED IN THE COURT OF APPEALS NOR MENTIONED IN THE PETITION FOR
CERTIORARI FILED IN THIS COURT.  P. 362, N, 16. 

LAWN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT.* 

*TOGETHER WITH NO. 10, GIGLIO ET AL. V. UNITED STATES, ALSO ON
CERTIORARI TO THE SAME COURT, ARGUED OCTOBER 15, 1957. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

ON JULY 23, 1953, A 10-COUNT INDICTMENT WAS RETURNED IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CHARGING
PETITIONERS AND OTHERS WITH EVADING, AND CONSPIRING TO EVADE,
ASSESSMENT AND PAYMENT OF A LARGE AMOUNT OF FEDERAL INCOME TAXES FOR
THE YEAR 1946 IN VIOLATION OF THE INTERNAL REVENUE LAWS (SECS. 145(B)
AND 3793(B) OF THE INTERNAL REVENUE CODE OF 1939) (FN1) AND OF THE
GENERAL CONSPIRACY STATUTE (18 U.S.C. SEC. 371).  AFTER A PROTRACTED
TRIAL BEFORE A JURY PETITIONERS WERE FOUND GUILTY AS CHARGED.  (FN2)
ON APPEAL THE COURT OF APPEALS FOUND THAT THERE WAS SUBSTANTIAL
EVIDENCE THAT PETITIONERS, OPERATING THROUGH THE MEDIA OF SEVERAL
PARTNERSHIPS AND CORPORATIONS, (FN3) CONSPIRED TO EVADE, AND BY A
VARIETY OF MEANS DID EVADE, BOTH THE ASSESSMENT (FN4) AND THE PAYMENT
(FN5) OF MORE THAN $800,000 OF INDIVIDUAL AND CORPORATE FEDERAL INCOME
TAXES FOR THE YEAR 1946 (FN6) UPON INCOME DERIVED FROM THE WORLD WAR II
BLACK MARKET IN SUGAR AND THAT PETITIONERS GIGLIO AND LIVORSI, WHO
OWNED EQUAL INTERESTS IN THE SEVERAL ENTERPRISES OF WHICH GIGLIO WAS
THE CHIEF EXECUTIVE, WERE THE PRINCIPALS IN THE CONSPIRACY, BUT ROTH,
AN ACCOUNTANT, AND LAWN, A LAWYER, (FN7) PROVIDED THE ACCOUNTING AND
LEGAL SERVICES REQUIRED TO CARRY OUT THE CONSPIRACY.  IT FOUND THAT THE
EVIDENCE AMPLY SUSTAINED THE VERDICTS AND THAT NO PREJUDICIAL ERROR WAS
COMMITTED AT THE TRIAL, AND IT AFFIRMED THE JUDGMENTS OF CONVICTION. 
232 F.2D 589.  UPON PETITION BY LAWN IN NO. 9, AND BY GIGLIO AND
LIVORSI IN NO. 10, WE GRANTED CERTIORARI.  352 U.S. 865.  BECAUSE THE
CHALLENGED CONVICTIONS RESULTED FROM A COMMON TRIAL AT WHICH
PETITIONERS WERE REPRESENTED BY THE SAME COUNSEL, AND BECAUSE SEVERAL
OF THE QUESTIONS PRESENTED IN EACH CASE ARE SIMILAR, THE TWO CASES WILL
BE DECIDED IN ONE OPINION. 

PETITIONERS ASK THIS COURT TO REVERSE THEIR CONVICTIONS UPON FOUR
MAIN GROUNDS.  FIRST, THEY CONTEND, LAWN ONLY TANGENTIALLY, THAT THEY
WERE DEPRIVED OF DUE PROCESS IN VIOLATION OF THE FIFTH AMENDMENT BY THE
REFUSAL OF THE DISTRICT COURT TO CONDUCT A FULL-DRESS HEARING TO
DETERMINE WHETHER TESTIMONY OR DOCUMENTS OBTAINED FROM THEM IN A PRIOR
GRAND JURY INVESTIGATION, OR EVIDENCE DERIVED FROM LEADS AND CLUES
FURNISHED THEREBY, WAS CONSIDERED BY THE GRAND JURY THAT RETURNED THE
PRESENT INDICTMENT.  SECOND, PETITIONER LAWN CONTENDS THAT RECEIPT IN
EVIDENCE AT THE TRIAL OF A PHOTOSTATIC COPY OF A CANCELED CHECK AND ITS
CORRESPONDING CHECK STUB, OBTAINED FROM HIM IN A PRIOR GRAND JURY
INVESTIGATION, DEPRIVED HIM OF DUE PROCESS IN VIOLATION OF THE FIFTH
AMENDMENT.  THIRD, PETITIONERS CONTEND THEY WERE DENIED AN OPPORTUNITY
TO EXAMINE AND CROSS-EXAMINE WITNESSES AT THE TRIAL TO DETERMINE
WHETHER EVIDENCE DERIVED FROM LEADS AND CLUES FURNISHED BY TESTIMONY
AND DOCUMENTS OBTAINED FROM PETITIONERS IN A PRIOR GRAND JURY
INVESTIGATION WAS USED BY THE PROSECUTION AT THE TRIAL, AND THAT THIS
DEPRIVED THEM OF DUE PROCESS IN VIOLATION OF THE FIFTH AMENDMENT.  AND
FOURTH, PETITIONERS LAWN AND LIVORSI CONTEND THAT THE EVIDENCE DOES NOT
SUPPORT THEIR CONVICTIONS. 

UNDERSTANDING OF PETITIONERS' FIRST AND SECOND CONTENTIONS, AND TO A
LESSER EXTENT THEIR THIRD CONTENTION, REQUIRES A REVIEW OF THE
UNDERLYING FACTS UPON WHICH THEY ARE BASED.  REVENUE AGENTS BEGAN AN
INVESTIGATION IN 1948 OF PETITIONERS' INCOME TAX LIABILITIES, AND ON
SEPTEMBER 14, 1950, THREE CRIMINAL INFORMATIONS WERE FILED CHARGING
THEM WITH VIOLATION OF THE FEDERAL INCOME TAX LAWS.  THOSE INFORMATIONS
WERE NOT BROUGHT TO TRIAL BECAUSE THE GOVERNMENT HAD NOT COMPLETED ITS
INVESTIGATION AND LATER CONCLUDED THAT "MUCH MORE SERIOUS CRIMES WERE
INVOLVED."  IN EARLY JULY 1952, PETITIONERS AND ROTH WERE SERVED WITH
SUBPOENAS DUCES TECUM COMMANDING THEM TO APPEAR AND TESTIFY BEFORE A
GRAND JURY ON JULY 14, 1952, AND TO PRODUCE CERTAIN PARTNERSHIP AND
CORPORATE RECORDS OF THE GIGLIO AND LIVORSI ENTERPRISES.  THEY APPEARED
AND TESTIFIED, BUT WERE NOT WARNED OF THEIR CONSTITUTIONAL PRIVILEGE
AGAINST SELF-INCRIMINATION.  LAWN PRODUCED THREE CANCELED CHECKS MADE
BY TAVERN FRUIT JUICE CO. PAYABLE TO HIS ORDER AND THE CHECKBOOK STUB
CORRESPONDING TO THE SECOND CHECK.  THOSE INSTRUMENTS WERE THERE MARKED
"G.J. EX. 1, 2, 3 AND 4, RESPECTIVELY 7/15/52 L.F.G."  AND WERE
PHOTOSTATED BY THE UNITED STATES ATTORNEY AND RETURNED TO LAWN.  GIGLIO
PRODUCED A QUANTITY OF RECORDS, INCLUDING SOME PARTNERSHIP RECORDS, BUT
STATED THAT "PRACTICALLY ALL OF THESE COMPANIES AND CORPORATIONS TURNED
OVER THE BOOKS AND RECORDS TO THE INTERNAL REVENUE DEPARTMENT ON SOME
DATE IN 1949."  ON OCTOBER 20, 1952, THE GRAND JURY RETURNED SIX
INDICTMENTS AGAINST PETITIONERS CHARGING THEM WITH OFFENSES SIMILAR TO
THOSE CHARGED IN THE PRESENT INDICTMENT.  PETITIONERS MOVED TO DISMISS
THOSE INDICTMENTS UPON THE GROUND THAT THEY HAD BEEN PROCURED, IN PART
AT LEAST, UPON EVIDENCE OBTAINED FROM PETITIONERS IN VIOLATION OF THEIR
FIFTH AMENDMENT RIGHTS.  THE DISTRICT COURT HELD THAT TO REQUIRE
PETITIONERS TO TESTIFY AND PRODUCE PARTNERSHIP AND PERSONAL RECORDS
BEFORE THE GRAND JURY, WHILE CRIMINAL INFORMATIONS CHARGING TAX
EVASIONS WERE PENDING AGAINST THEM, WITHOUT WARNING THEM OF THEIR
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION, VIOLATED THEIR
FIFTH AMENDMENT RIGHTS.  IT THEREFORE DISMISSED THE INDICTMENTS AND
DIRECTED THE GOVERNMENT "TO RETURN, TO THE RESPECTIVE DEFENDANTS, THE
PARTNERSHIP AND PERSONAL RECORDS PRODUCED BY THEM IN RESPONSE TO THE
SUBPOENAS."  UNITED STATES V. LAWN, 115 F. SUPP. 674, 678.  THE
GOVERNMENT APPEALED FROM THAT ORDER BUT THE APPEAL WAS DISMISSED AS
UNTIMELY ON OCTOBER 19, 1953.  UNITED STATES V. ROTH, 208 F.2D 467. 
(FN8)  WHILE THAT APPEAL WAS PENDING THE GOVERNMENT CAUSED A NEW
INVESTIGATION TO BE MADE OF PETITIONERS' FEDERAL INCOME TAX LIABILITIES
BY ANOTHER GRAND JURY, BEFORE WHOM PETITIONERS DID NOT APPEAR, AND ON
JULY 23, 1953, THAT GRAND JURY RETURNED THE PRESENT INDICTMENT WHICH
WAS SEALED.  AFTER THE GOVERNMENT'S APPEAL FROM THE ORDER DISMISSING
THE 1952 INDICTMENT HAD BEEN DISMISSED (UNITED STATES V. ROTH, SUPRA)
THE NEW SEALED INDICTMENT WAS OPENED, AND SOON AFTERWARD PETITIONERS
MOVED (1) TO DISMISS THE INDICTMENT, AND IN THAT CONNECTION (2) TO HAVE
A HEARING TO DETERMINE WHETHER THE GOVERNMENT HAD USED TESTIMONY GIVEN
OR DOCUMENTS PRODUCED BY PETITIONERS BEFORE THE 1952 GRAND JURY, OR
EVIDENCE OBTAINED THROUGH LEADS AND CLUES FURNISHED THEREBY, IN
PROCURING THE INDICTMENT, AND (3) TO INSPECT THE MINUTES OF THE GRAND
JURY AND, IF THE MOTION TO DISMISS THE INDICTMENT BE DENIED, (4) TO
SUPPRESS THE USE AT THE TRIAL OF ALL TESTIMONY AND DOCUMENTS PROCURED
FROM PETITIONERS IN THE 1952 GRAND JURY PROCEEDING AND ALL EVIDENCE
DERIVED THEREFROM.  THESE MOTIONS WERE SUBMITTED TO THE COURT UPON
AFFIDAVITS.  (FN9)  AFTER CONSIDERING THEM AND HEARING EXTENSIVE
ARGUMENTS OF COUNSEL, THE COURT FOUND THAT THE AFFIDAVITS LEFT NO ROOM
FOR AN INFERENCE THAT THE GOVERNMENT HAD USED ILLEGALLY OBTAINED
MATERIALS IN SECURING THE PRESENT INDICTMENT, THAT PETITIONERS' CLAIM
DID NOT HAVE THE "SOLIDITY" REQUIRED TO JUSTIFY THE HOLDING OF SUCH A
HEARING, AND THAT TO DO SO "ON THE BASIS OF THE SHOWING MADE BY THE
DEFENDANTS AND THE GOVERNMENT WOULD INDEED BE SUBORDINATING 'THE NEED
FOR RIGOROUS ADMINISTRATION OF JUSTICE TO UNDUE SOLICITUDE FOR
POTENTIAL  ...  DISOBEDIENCE OF THE LAW BY THE LAW'S OFFICERS.' 
(NARDONE V. UNITED STATES, 308 U.S. 338, 342.)"  UNITED STATES V.
GIGLIO, 16 F.R.D. 268, 270.  THE COURT DECLINED TO HOLD THE REQUESTED
HEARING AND DENIED THE MOTION TO INSPECT THE GRAND JURY MINUTES AND THE
MOTION TO DISMISS THE INDICTMENT.  THE COURT ALSO DENIED THE MOTION TO
SUPPRESS, (FN10) BUT IN THAT CONNECTION SAID:  "OF COURSE, IF DURING
THE COURSE OF THE TRIAL DEFENDANTS HAVE REASON TO BELIEVE THAT
ILLEGALLY OBTAINED MATERIAL IS BEING OR MAY BE USED AGAINST THEM, THEY
CAN OBJECT AT THAT TIME AND IT WILL BE INCUMBENT UPON THE TRIAL JUDGE
TO RULE ON THEIR OBJECTIONS."  UNITED STATES V. GIGLIO, SUPRA, AT 271. 

PURSUANT TO ORDER OF THE COURT THE GOVERNMENT PRODUCED FOR INSPECTION
BY PETITIONERS, BEFORE THE TRIAL, THE CORPORATE RECORDS DELIVERED BY
GIGLIO TO THE 1952 GRAND JURY IN COMPLIANCE WITH ITS SUBPOENA, THE
DOCUMENTS WHICH HAD BEEN ABANDONED BY PETITIONERS AND EXAMINED BY THE
GOVERNMENT, AND THE DOCUMENTS RELATING TO PETITIONERS' BUSINESSES
OBTAINED FROM THE NEW JERSEY RECEIVER.  AT THE BEGINNING OF THE TRIAL
PETITIONERS RENEWED THE ABOVE-MENTIONED MOTIONS WHICH WERE AGAIN
DENIED.  IN THE COURSE OF THE TRIAL THE GOVERNMENT FURNISHED
PETITIONERS A TRANSCRIPT OF THEIR TESTIMONY BEFORE THE 1952 GRAND
JURY. 

                              I. 

AS STATED, PETITIONERS FIRST CONTEND THAT THEY WERE DEPRIVED OF DUE
PROCESS BY THE REFUSAL OF THE COURT TO CONDUCT THE REQUESTED FULL-DRESS
HEARING TO ENABLE THEM TO ATTEMPT TO DETERMINE WHETHER MATERIALS
OBTAINED FROM THEM IN THE 1952 GRAND JURY PROCEEDING, OR EVIDENCE
DERIVED THEREFROM, WAS CONSIDERED BY THE 1953 GRAND JURY.  WE BELIEVE
THERE IS NO MERIT IN THIS CONTENTION.  THE DISTRICT COURT'S ORDER
DISMISSING THE 1952 INDICTMENTS BECAUSE OF THE USE OF SUCH EVIDENCE
BEFORE THAT GRAND JURY, THOUGH FINAL, COULD NOT IN ANY WAY DETERMINE
THAT ANY DIRECT OR DERIVATIVE USE OF SUCH EVIDENCE WAS MADE BY THE 1953
GRAND JURY THAT RETURNED THE PRESENT INDICTMENT.  THE AFFIDAVITS
SUBMITTED IN SUPPORT OF AND IN OPPOSITION TO THE MOTION FOR THE
REQUESTED HEARING DISCLOSED, AS FOUND BY THE TRIAL COURT AND THE COURT
OF APPEALS, WITH WHICH FINDINGS WE AGREE, THAT PETITIONERS HAD NO
REASON, BEYOND SUSPICION, TO BELIEVE THAT THE 1953 GRAND JURY
CONSIDERED ANY OF THE MATERIALS PRODUCED BY PETITIONERS BEFORE THE 1952
GRAND JURY.  THESE FACTS MAKE CLEAR THAT PETITIONERS LAID NO FOUNDATION
FOR THE HOLDING OF A PROTRACTED PRELIMINARY HEARING (AT WHICH THEY
WOULD, IN EFFECT, TAKE THE DEPOSITIONS OF THE GOVERNMENT'S WITNESSES)
TO DETERMINE WHETHER THERE WAS ANY SUBSTANCE TO THEIR SUSPICION THAT
SOME DIRECT OR DERIVATIVE USE MAY HAVE BEEN MADE BY THE 1953 GRAND JURY
OF MATERIALS PRODUCED BY PETITIONERS BEFORE THE 1952 GRAND JURY. 

MOREOVER, THIS COURT HAS SEVERAL TIMES RULED THAT AN INDICTMENT
RETURNED BY A LEGALLY CONSTITUTED NONBIASED GRAND JURY, LIKE AN
INFORMATION DRAWN BY A PROSECUTOR, IF VALID ON ITS FACE, IS ENOUGH TO
CALL FOR A TRIAL OF THE CHARGE ON THE MERITS AND SATISFIES THE
REQUIREMENTS OF THE FIFTH AMENDMENT.  IN HOLD V. UNITED STATES, 218
U.S. 245, THIS COURT WAS REQUIRED TO DECIDE WHETHER AN INDICTMENT
SHOULD BE QUASHED BECAUSE PROCURED IN PART BY INCOMPETENT EVIDENCE OF
AN ADMISSION BY THE ACCUSED, ASIDE FROM WHICH "THERE WAS VERY LITTLE
EVIDENCE AGAINST THE ACCUSED."  ID., AT 247.  THIS COURT REFUSED TO
HOLD THAT SUCH AN INDICTMENT SHOULD BE QUASHED, STATING:  "THE ABUSES
OF CRIMINAL PRACTICE WOULD BE ENHANCED IF INDICTMENTS COULD BE UPSET ON
SUCH A GROUND."  ID., AT 248.  IN COSTELLO V. UNITED STATES, 350 U.S.
359, THIS COURT SQUARELY FACED AND DECIDED THE QUESTION, SAYING:

"IF INDICTMENTS WERE TO BE HELD OPEN TO CHALLENGE ON THE GROUND THAT
THERE WAS INADEQUATE OR INCOMPETENT EVIDENCE BEFORE THE GRAND JURY, THE
RESULTING DELAY WOULD BE GREAT INDEED.  THE RESULT OF SUCH A RULE WOULD
BE THAT BEFORE TRIAL ON THE MERITS A DEFENDANT COULD ALWAYS INSIST ON A
KIND OF PRELIMINARY TRIAL TO DETERMINE THE COMPETENCY AND ADEQUACY OF
THE EVIDENCE BEFORE THE GRAND JURY.  THIS IS NOT REQUIRED BY THE FIFTH
AMENDMENT.  AN INDICTMENT RETURNED BY A LEGALLY CONSTITUTED AND
UNBIASED GRAND JURY, LIKE AN INFORMATION DRAWN BY THE PROSECUTOR, IF
VALID ON ITS FACE, IS ENOUGH TO CALL FOR TRIAL OF THE CHARGE ON THE
MERITS.  THE FIFTH AMENDMENT REQUIRES NOTHING MORE."  ID., AT 363. 

THIS COURT WAS URGED IN THAT CASE TO "ESTABLISH A RULE PERMITTING
DEFENDANTS TO CHALLENGE INDICTMENTS ON THE GROUND THAT THEY ARE NOT
SUPPORTED BY ADEQUATE OR COMPETENT EVIDENCE," ID., AT 364, BUT THE
COURT DECLINED TO DO SO, SAYING: 

"IT WOULD RUN COUNTER TO THE WHOLE HISTORY OF THE GRAND JURY
INSTITUTION, IN WHICH LAYMEN CONDUCT THEIR INQUIRIES UNFETTERED BY
TECHNICAL RULES.  NEITHER JUSTICE NOR THE CONCEPT OF A FAIR TRIAL
REQUIRES SUCH A CHANGE.  IN A TRIAL ON THE MERITS, DEFENDANTS ARE
ENTITLED TO A STRICT OBSERVANCE OF ALL THE RULES DESIGNED TO BRING
ABOUT A FAIR VERDICT.  DEFENDANTS ARE NOT ENTITLED, HOWEVER, TO A RULE
WHICH WOULD RESULT IN INTERMINABLE DELAY BUT ADD NOTHING TO THE
ASSURANCE OF A FAIR TRIAL."  IBID. 

IT SHOULD BE UNNECESSARY TO SAY THAT WE ARE NOT HERE DEALING WITH THE
USE OF INCOMPETENT OR ILLEGAL EVIDENCE IN A TRIAL ON THE MERITS, NOR
WITH THE RIGHT TO DECLINE TO GIVE INCRIMINATING TESTIMONY IN LEGAL
PROCEEDINGS OR TO SUPPRESS THE DIRECT OR DERIVATIVE USE AT THE TRIAL OF
EVIDENCE ILLEGALLY OBTAINED.  WE DEAL HERE ONLY WITH THE QUESTION
WHETHER PETITIONERS, IN THE CIRCUMSTANCES OF THIS CASE, WERE ENTITLED
TO A PRELIMINARY HEARING TO ENABLE THEM TO SATISFY THEIR UNSUPPORTED
SUSPICIONS THAT THE 1953 GRAND JURY THAT RETURNED THIS INDICTMENT MADE
DIRECT OR DERIVATIVE USE OF THE MATERIALS WHICH THEY PRODUCED BEFORE
THE 1952 GRAND JURY.  WE HOLD THAT THEY WERE NOT. 
                       II. 

WE COME NOW TO PETITIONER LAWN'S CONTENTION THAT RECEIPT IN EVIDENCE
AT THE TRIAL OF A PHOTOSTATIC COPY OF A CANCELED CHECK AND ITS
CORRESPONDING CHECK STUB, OBTAINED FROM HIM IN THE 1952 GRAND JURY
PROCEEDING, DEPRIVED HIM OF DUE PROCESS IN VIOLATION OF THE FIFTH
AMENDMENT.  AS EARLIER STATED, LAWN, PURSUANT TO SUBPOENA, PRODUCED
BEFORE THE 1952 GRAND JURY A CANCELED CHECK OF TAVERN FRUIT JUICE CO.
PAYABLE TO HIS ORDER IN THE AMOUNT OF $15,000, ENDORSED BY HIM, AND THE
CORRESPONDING STUB, WHICH WERE MARKED ON THEIR FACES "G.J. EX. 2
7/15/52 L.F.G."  AND "G.J. EX. 4 7/15/52 L.F.G.," RESPECTIVELY, AND
WERE PHOTOSTATED BY THE UNITED STATES ATTORNEY AND RETURNED TO LAWN. 
THOSE PHOTOSTATS WERE OFFERED IN EVIDENCE - IT APPEARS INADVERTENTLY -
BY THE PROSECUTION AT THE TRAIL, AS EXHIBITS 61-A AND 61-B.  HOWEVER,
BEFORE THOSE EXHIBITS WERE OFFERED, EXHIBIT 58-A, BEING A STATEMENT OF
ASSETS, LIABILITIES, INCOME, PROFIT AND LOSS AND SUPPORTING SCHEDULES
OF TAVERN FRUIT JUICE COMPANY PREPARED SOME TIME AFTER TAVERN'S FISCAL
YEAR HAD ENDED ON MARCH 31, 1946, AND EXHIBIT 7, BEING TAVERN'S
INFORMATION TAX RETURN FOR 1946 WHICH WAS FILED ON SEPTEMBER 15, 1947,
HAD BEEN RECEIVED IN EVIDENCE WITHOUT OBJECTION.  THE FORMER CONTAINED
AN ITEM OF "LEGAL EXPENSES $16,600," WHILE THE LATTER RECITED "LEGAL
FEES $1,600."  ROTH, IN EXPLANATION, TESTIFIED THAT "SOMETIME DURING
THE OPERATION OF THE PARTNERSHIP A CHECK FOR $15,000 WAS DRAWN TO
HOWARD LAWN," AND THAT A QUESTION HAD ARISEN ABOUT HOW TO ENTER IT ON
THE BOOKS.  AFTER DISCUSSING THE MATTER WITH GIGLIO, ROTH CHARGED IT TO
LEGAL EXPENSE.  MONTHS LATER LAWN ASKED ROTH HOW THE ITEM WAS CARRIED
ON TAVERN'S BOOKS AND ROTH TOLD HIM THAT IT WAS CARRIED AS A LEGAL
EXPENSE.  LAWN ADVISED ROTH THAT THIS HANDLING WAS INCORRECT, AS THE
ITEM WAS A LOAN FROM GIGLIO AND NOT A LEGAL EXPENSE OF TAVERN. 
THEREUPON, AFTER CONSULTING GIGLIO, ROTH ALTERED TAVERN'S BOOKS BY
REMOVING THE ITEM FROM LEGAL EXPENSE AND CHARGING IT TO GIGLIO.  ROTH
DID NOT REMEMBER JUST WHEN THE ALTERATION OF THE BOOKS WAS MADE, EXCEPT
THAT IT WAS AFTER THE PREPARATION OF EXHIBIT 58-A AND PRIOR TO THE
FILING OF EXHIBIT 7. 

IT IS IMPORTANT TO NOTE THAT AT THIS STAGE OF THE TRIAL THERE WAS
THUS CLEAR EVIDENCE BEFORE THE JURY, CORROBORATED BY EXHIBITS 58-A AND
7, ALL ADMITTED WITHOUT OBJECTION, SHOWING THAT LAWN HAD RECEIVED THE
$15,000 CHECK FROM TAVERN, BUT AN ISSUE EXISTED WHETHER IT WAS AN
INNOCENT LOAN FROM GIGLIO OR AN INCRIMINATORY PAYMENT BY TAVERN IN THE
GUISE OF A LEGAL FEE.  THE PROSECUTION THEN OFFERED IN EVIDENCE
EXHIBITS 61-A AND 61-B, BEING THE $15,000 CHECK AND CORRESPONDING
STUB.  PETITIONERS' ABLE AND EXPERIENCED COUNSEL (NOW DECEASED) THEN
ASKED, AND WAS GRANTED, PERMISSION TO EXAMINE THE WITNESS ROTH
PREPARATORY TO A POSSIBLE OBJECTION TO THOSE EXHIBITS.  HE THEN
QUESTIONED THE WITNESS AT SOME LENGTH ABOUT THE HANDWRITING ON THE
CHECK AND STUB, (FN11) AND CONCLUDED BY ASKING THE WITNESS:  "Q.  AND
UNDER THAT CHECK STUB OR IN THAT NO. 640 (THE NUMBER OF THE CHECK
STUB), WHICH CORRESPONDS WITH THE CHECK ITSELF, THERE IS A
PARENTHETICAL STATEMENT, 'BILL G'?  A. YES, SIR.  Q. INDICATING IT IS
FOR MR. GIGLIO'S ACCOUNT?  A. YES, SIR."  AND PETITIONERS' COUNSEL THEN
STATED, "NO OJBECTION," AND THE EXHIBITS WERE RECEIVED.  THIS
EXAMINATION AND USE OF THOSE EXHIBITS (SHOWING ON THEIR FACE THAT THEY
HAD BEEN EXHIBITS BEFORE THE 1952 GRAND JURY) BY PETITIONERS' ABLE
COUNSEL TO SHOW THAT THE CHECK WAS AN INNOCENT LOAN BY GIGLIO AND NOT
AN INCRIMINATORY PAYMENT BY TAVERN IN THE GUISE OF A LEGAL FEE - HIS
ONLY OPPORTUNITY TO DRIVE THAT POINT HOME TO THE JURY IF PETITIONERS
WERE NOT TO TAKE THE STAND, AS THEY DID NOT - AND HIS AFFIRMATIVE
STATEMENT THAT HE HAD "NO OBJECTION" TO RECEIPT OF THE EXHIBITS SHOW,
WE BELIEVE, A CONSCIOUS AND INTENTIONAL WAIVER OF ALL OBJECTIONS TO
RECEIPT OF THOSE DOCUMENTS IN EVIDENCE. 

LAWN ARGUES THAT THE DENIAL, BEFORE THE TRIAL, OF PETITIONERS' MOTION
TO SUPPRESS, AND THE UNEQUIVOCAL AFFIDAVIT OF THE UNITED STATES
ATTORNEY IN CHARGE OF THE CASE STATING THAT MATERIALS OBTAINED FROM
PETITIONERS PURSUANT TO SUBPOENA IN THE 1952 GRAND JURY PROCEEDING
WOULD NOT BE USED IN THE FUTURE COURSE OF THE CASE, PRESERVED HIS
OBJECTIONS TO THESE EXHIBITS AND MADE IT UNNECESSARY AGAIN TO OBJECT TO
THEM AT THE TRIAL.  IT IS QUITE TRUE GENERALLY THAT THE OVERRULING OF A
PRETRIAL MOTION TO SUPPRESS THE USE AT THE TRIAL OF PARTICULAR EVIDENCE
PRESERVES THE POINT AND RENDERS IT UNNECESSARY AGAIN TO OBJECT WHEN
SUCH EVIDENCE IS OFFERED AT THE TRIAL.  COGEN V. UNITED STATES, 278
U.S. 221, 223; GOULED V. UNITED STATES, 255 U.S. 298, 312, 313; WALDRON
V. UNITED STATES, 95 U.S. APP. D.C. 66, 69-70, 219 F.2D 37, 41; AND
COMPARE KEEN V. OVERSEAS TANKSHIP CORP., 194 F.2D 515.  BUT THE RULE IS
ONE OF PRACTICE AND IS NOT WITHOUT EXCEPTIONS, NOR IS IT TO BE APPLIED
AS A HARD-AND-FAST FORMULA TO EVERY CASE REGARDLESS OF ITS SPECIAL
CIRCUMSTANCES.  COGEN V. UNITED STATES, SUPRA, AT 223, 224; GOULED V.
UNITED STATES, SUPRA, AT 312, 313.  IT WILL BE REMEMBERED THAT THE
COURT IN PASSING ON THE MOTION TO SUPPRESS SAID, RESPECTING THE
AFFIDAVIT OF THE UNITED STATES ATTORNEY, THAT "AT THIS STAGE OF THE
PROCEEDINGS THAT OATH IS SUFFICIENT" (UNITED STATES V. GIGLO, 16
F.R.D., AT 271), BUT HE EXPRESSLY LEFT THE MATTER OF SUPPRESSION OF
EVIDENCE TO THE TRIAL COURT AND ADMONISHED PETITIONERS THAT IF DURING
THE COURSE OF THE TRIAL THEY "HAVE REASON TO BELIEVE THAT ILLEGALLY
OBTAINED MATERIAL IS BEING OR MAY BE USED AGAINST THEM, THEY CAN OBJECT
AT THAT TIME AND IT WILL BE INCUMBENT UPON THE TRIAL JUDGE TO RULE ON
THEIR OBJECTIONS."  ID., AT 271.  THE RECORD SHOWS THAT PETITIONERS'
COUNSEL WAS FULLY AWARE OF ALL THIS WHEN EXHIBITS 61-A AND 61-B WERE
OFFERED IN EVIDENCE, AND WHEN, AFTER USING THEM FOR HIS PURPOSES, HE
AFFIRMATIVELY SAID HE HAD "NO OBJECTION" TO THEM. 

THE GOVERNMENT ARGUES THAT, HAD ITS ATTENTION BEEN CALLED TO THE FACT
THAT THESE PARTICULAR PHOTOSTATIC COPIES HAD BEEN EXHIBITS BEFORE THE
1952 GRAND JURY BY AN OBJECTION TO THEM, IT COULD AND WOULD HAVE
PRODUCED OTHER COPIES OBTAINED FROM OTHER SOURCES BEFORE THE 1952 GRAND
JURY PROCEEDING WAS COMMENCED.  IN THAT CONNECTION IT HAS FILED HERE
WHAT IS SAID TO BE A TRANSCRIPT OF A HEARING ACCORDED TO LAWN AT HIS
REQUEST ON MAY 12, 1952, WHICH IT SAYS CONTAINS PHOTOSTATIC COPIES OF
THE CHECK AND CHECK STUB IN QUESTION VOLUNTARILY PRODUCED BY LAWN. 
LAWN HAS MOVED TO STRIKE THAT TRANSCRIPT AND THE PORTIONS OF THE
GOVERNMENT'S BRIEF RELATING THERETO.  THAT MOTION MUST BE SUSTAINED AS
WE MUST LOOK ONLY TO THE CERTIFIED RECORD IN DECIDING QUESTIONS
PRESENTED.  MCCLELLAN V. CARLAND, 217 U.S. 268. 

WE BELIEVE THAT THE FACTS FROM THE CERTIFIED RECORD, ABOVE DISCUSSED,
SHOW THAT PETITIONERS' COUNSEL, AFTER USING THE CHECK AND CHECK STUB TO
MAKE HIS POINT BEFORE THE JURY THAT THE CHECK WAS AN INNOCENT LOAN FROM
GIGLIO AND NOT AN INCRIMINATORY PAYMENT BY TAVERN IN THE GUISE OF A
LEGAL FEE, WISELY (AS, WE BELIEVE, EVERY IMPARTIAL AND EXPERIENCED
TRIAL LAWYER WOULD AGREE) SAID THAT HE HAD "NO OBJECTION" TO THOSE
EXHIBITS, AND THUS CONSCIOUSLY AND INTENTIONALLY WAIVED ANY OBJECTION
TO THEIR RECEIPT IN EVIDENCE. 

                                             III. 

PETITIONERS ARGUE THAT THEY WERE DENIED AN OPPORTUNITY TO EXAMINE AND
CROSS-EXAMINE WITNESSES AT THE TRIAL TO DETERMINE WHETHER EVIDENCE
DERIVED FROM LEADS AND CLUES FURNISHED BY MATERIALS OBTAINED FROM THEM
IN THE 1952 GRAND JURY PROCEEDINGS WAS USED BY THE PROSECUTION AT THE
TRIAL, AND THAT THIS DEPRIVED THEM OF DUE PROCESS IN VIOLATION OF THE
FIFTH AMENDMENT.  IT CANNOT BE DOUBTED THAT PETITIONERS HAD THAT RIGHT
IN THE CIRCUMSTANCES OF THIS CASE, NARDONE V. UNITED STATES, 308 U.S.
338, 341, 342, AND THE GOVERNMENT DOES NOT OTHERWISE CONTEND. 
MOREOVER, AS EARLIER STATED, THE DISTRICT COURT, IN RULING THE PRETRIAL
MOTION TO SUPPRESS, EXPRESSLY LEFT THIS SUBJECT OPEN TO INQUIRY AT THE
TRIAL.  UNITED STATES V. GIGLIO, 16 F.R.D., AT 271.  THE CONTENTION IS
WHOLLY FACTUAL, AND A THOROUGH STUDY OF THE RECORD DISCLOSES THAT
PETITIONERS WERE ACCORDED THAT RIGHT.  THE COURT DID NOT SUSTAIN
OBJECTIONS TO PETITIONERS' EXAMINATION OR CROSS-EXAMINATION OF
WITNESSES ATTEMPTING TO SHOW DERIVATIVE USE AT THE TRIAL OF ANY
EVIDENCE PRODUCED BY PETITIONERS BEFORE THE 1952 GRAND JURY, BUT ONLY
SUSTAINED OBJECTIONS TO QUESTIONS ATTACKING THE PROCEDURAL VALIDITY OF
THE INDICTMENT.  (FN12)  AT NO TIME DID COUNSEL FOR PETITIONERS POINT
SPECIFICALLY TO ANY EVIDENCE OFFERED AT THE TRIAL WHICH THEY CLAIMED
WAS DERIVED FROM MATERIALS FURNISHED BY PETITIONERS BEFORE THE 1952
GRAND JURY.  NEAR THE CLOSE OF THE GOVERNMENT'S CASE, THE COURT STATED
THAT, SO FAR AS HE COULD DETECT, THERE HAD BEEN NO DIRECT OR DERIVATIVE
USE OF ANY TAINTED EVIDENCE BY THE GOVERNMENT AT THE TRIAL, AND HE
REQUESTED COUNSEL FOR PETITIONERS, ON TWO OCCASIONS, TO SUBMIT A
MEMORANDUM OF ANY EVIDENCE OFFERED BY THE GOVERNMENT WHICH HE BELIEVED
WAS OBTAINED THROUGH LEADS OR CLUES FROM MATERIALS PRODUCED BY
PETITIONERS BEFORE THE 1952 GRAND JURY.  NO SUCH MEMORANDUM WAS EVER
FURNISHED. 

PETITIONERS POINT TO THREE INSTANCES WHERE THEY SAY THE TRIAL COURT
DENIED THEM THE RIGHT TO EXAMINE WITNESSES ABOUT THE SOURCE OF EVIDENCE
OFFERED BY THE GOVERNMENT AT THE TRIAL.  FIRST, THEY SAY THAT IN CROSS
EXAMINING THE GOVERNMENT'S WITNESS ROTH THEY SOUGHT TO QUESTION HIM
CONCERNING AN AFFIDAVIT HE HAD MADE IN SUPPORT OF THE MOTION TO DISMISS
THE 1953 INDICTMENT, BUT THE COURT SUSTAINED AN OBJECTION TO THE
QUESTION.  IT IS CLEAR THAT THE RULING WAS MADE UPON THE GROUND, AS
PETITIONERS' COUNSEL STATED AT THE TIME, THAT THE PURPOSE OF THE
INTERROGATION WAS TO "GO INTO THE QUESTION OF WHAT EVIDENCE WAS USED TO
OBTAIN THIS INDICTMENT," RATHER THAN TO SHOW THE USE BY THE GOVERNMENT
OF TAINTED EVIDENCE AT THE TRIAL.  SECOND, THEY POINT TO THE FACT THAT
DURING THE CROSS-EXAMINATION OF TREASURY AGENT PRESENT, THEIR COUNSEL
ASKED HIM WHETHER, IN HIS AUDITS, HE HAD EXAMINED ANY OTHER BOOKS OR
RECORDS ABOUT WHICH COUNSEL HAD FAILED TO ASK; AND THEY ARGUE THAT THE
PURPOSE OF THE QUESTION WAS TO DETERMINE WHETHER TAINTED EVIDENCE HAD
BEEN OR WAS BEING USED BY THE GOVERNMENT AT THE TRIAL, AND THAT THEY
WERE DENIED AN ANSWER TO THE QUESTION.  BUT EXAMINATION OF THE RECORD
DISCLOSES THAT COUNSEL'S ANNOUNCED PURPOSE IN ASKING THE QUESTION WAS
NOT TO DETERMINE WHETHER TAINTED EVIDENCE HAD BEEN OR WAS BEING USED AT
THE TRIAL, BUT WAS, RATHER, TO DETERMINE WHETHER TAINTED EVIDENCE WAS
"USED BY THE GRAND JURY THAT FOUND THIS INDICTMENT."  (FN13)  THIRD,
PETITIONERS ARGUE THAT IN EXAMINING THEIR OWN WITNESS, FORMER ASSISTANT
UNITED STATES ATTORNEY LEONE, THEY WERE DENIED AN OPPORTUNITY TO SHOW
DERIVATIVE USE OF TAINTED EVIDENCE BY THE GOVERNMENT AT THE TRIAL.  THE
RECORD SHOWS THAT THERE IS NO BASIS WHATEVER FOR THIS CONTENTION. 
(FN14)

   IV. 

PETITIONERS LAWN AND LIVORSI ARGUE THAT THE EVIDENCE IS INSUFFICIENT
TO SUSTAIN THEIR CONVICTIONS.   IN SUPPORT OF COUNT 10, THE CONSPIRACY
COUNT, THE RECORD CONTAINS EVIDENCE TENDING TO SHOW THAT LAWN, FORMERLY
CHIEF OF THE CRIMINAL DIVISION OF THE UNITED STATES ATTORNEY'S OFFICE
FOR THE DISTRICT OF NEW JERSEY, WAS EMPLOYED BY GIGLIO AND LIVORSI
BECAUSE "HE HAD A TERRIFIC ENTRY WITH SOME OF THE HIGHEST GOVERNMENT
OFFICES," "WAS A PART OF THE ORGANIZATION" AND WAS "THERE TO PREVENT
ANY TROUBLE."  HE WAS FREQUENTLY IN GIGLIO'S PRIVATE OFFICE, WHICH
ADJOINED HIS OWN.  LAWN WAS PRESENT IN GIGLIO'S OFFICE WHEN IT WAS
DECIDED THAT EATSUM WOULD PURCHASE CORN AT BLACK-MARKET PRICES AND HAVE
IT REFINED INTO SYRUP TO BE SOLD FOR OVER-CEILING PRICES, AND LUBBEN
BEGAN THE HANDLING OF THOSE MATTERS.  BUT LAWN LATER TOLD HIM THAT HE
"HAD TERRIFIC CONNECTIONS" WITH A SYRUP COMPANY AND WITH A PROMINENT
POLITICAL FIGURE IN THE MIDWEST AND THAT HE COULD PROCURE THE CORN AND
SYRUP MORE ADVANTAGEOUSLY, AND LAWN THEN TOOK OVER THE HANDLING OF
THOSE MATTERS.  LUBBEN WAS CALLED INTO GIGLIO'S OFFICE IN SEPTEMBER
1945, WHERE GIGLIO, ROTH AND LAWN WERE PRESENT, AND GIGLIO STATED "THAT
THE PROFITS FROM TAVERN'S CANDY BUSINESS AND PRIMARILY EATSUM'S CORN
SYRUP BUSINESS WERE BECOMING TERRIFIC, AND THAT HE WASN'T INTERESTED IN
PAYING A LOT OF INCOME TAX AND SOMETHING HAD TO BE DONE, AND DONE
QUICK"; THAT "IT HAD BEEN DECIDED TO FORM A NUMBER OF COMPANIES" TO
SIPHON OFF THE PROFITS OF THE PARTNERSHIPS THROUGH "PHONY INVOICES";
AND THAT THE COMPANIES WOULD "BE DISSOLVED ...  BEFORE IT CAME TIME TO
PAY THE INCOME TAX."  SOON AFTERWARD LAWN WAS INSTRUMENTAL IN THE
CREATION OF A NUMBER OF CORPORATIONS BEARING IN SOME COMBINATION THE
WORD "AMERICAN."  LAWN WAS AN OFFICER AND NOMINAL STOCKHOLDER IN
SEVERAL OF THESE CORPORATIONS, AND OWNED 25% OF THE STOCK OF ONE OF
THEM WHICH HAD BEEN GIVEN TO HIM BY GIGLIO AND LIVORSI, AND LAWN
RECEIVED SUBSTANTIAL PAYMENTS FROM THE GIGLIO AND LIVORSI ENTERPRISES
IN ADDITION TO HIS SALARY.  IN SEPTEMBER 1947, NEAR THE TIME THE
DELINQUENT INCOME TAX RETURNS WERE FILED FOR THE YEAR 1946 BY GIGLIO,
LIVORSI AND THEIR SEVERAL CORPORATIONS, A MEETING WAS HELD IN LAWN'S
PRIVATE OFFICE WITH GIGLIO AND ROTH WHERE IT WAS AGREED THAT GIGLIO
WOULD TRANSFER HIS HOME TO ROTH SO THAT THE GOVERNMENT WOULD "NOT BE
ABLE TO TAKE THE HOUSE," AND LAWN SAID THE ARRANGEMENT "WOULD SAVE MR.
GIGLIO'S HOME."  SOON AFTERWARD THE TRANSFER WAS MADE.  THERE WAS OTHER
EVIDENCE TENDING TO SHOW LAWN'S PARTICIPATION IN THE CONSPIRACY, BUT WE
BELIEVE THE ABOVE-RECITED EVIDENCE, WITH THE LEGITIMATE INFERENCES THAT
MIGHT BE DRAWN THEREFROM BY THE JURY, WAS CLEARLY SUFFICIENT TO SUPPORT
THE VERDICT ON THE CONSPIRACY COUNT.    LAWN ALSO CONTESTS THE
SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE VERDICTS AGAINST HIM ON
COUNTS 7 AND 9, BUT SINCE THE SENTENCES UPON THOSE COUNTS RUN
CONCURRENTLY WITH THE SENTENCE ON COUNT 10, WHICH WE HAVE FOUND
SUSTAINED BY THE EVIDENCE, IT IS UNNECESSARY FOR US TO CONSIDER THOSE
CONTENTIONS.  SINCLAIR V. UNITED STATES, 279 U.S. 263, 299; HIRABAYASHI
V. UNITED STATES, 320 U.S. 81; PINKERTON V. UNITED STATES, 328 U.S.
640.  (FN15) 

PETITIONER LIVORSI ARGUES THAT THE EVIDENCE WAS NOT SUFFICIENT TO
SUPPORT THE VERDICTS AGAINST HIM.  AS TO COUNT 6, WHICH CHARGED HIM
WITH ATTEMPTING TO EVADE ASSESSMENT OF HIS INCOME TAXES FOR THE YEAR
1946 BY FILING A FRAUDULENT RETURN, THE RECORD SHOWS THAT HIS RETURN
DISCLOSED INCOME FROM EATSUM FOR THAT YEAR OF $101,123.88.  HOWEVER,
THE GOVERNMENT INTRODUCED EVIDENCE SHOWING THAT HIS INCOME FROM THAT
SOURCE IN THAT YEAR WAS $228,288.58, AND THAT HIS INCOME FROM TAVERN
FOR THAT YEAR WAS UNDERSTATED BY MORE THAN $40,000.  DURING THE TRIAL
AN ISSUE AROSE CONCERNING THE PROPER "DISTRIBUTIVE SHARES" OF GIGLIO
AND LIVORSI IN THE PROFITS OF EATSUM FOR THE YEAR 1946, BY REASON OF
THE SALE BY LUBBEN OF HIS "DISTRIBUTIVE SHARE" IN THE PROFITS OF THAT
PARTNERSHIP TO GIGLIO AND LIVORSI (ON MARCH 8, 1946) PRIOR TO THE CLOSE
OF ITS ACCOUNTING YEAR ON MAY 31, 1946.  BECAUSE OF THAT COMPLICATION
THE COURT, IN AN EFFORT TO SIMPLIFY THE MATTER, GAVE A SUPPLEMENTAL
CHARGE TO THE JURY IN WHICH, AMONG OTHER THINGS, HE SAID:  "WHEN YOU
GET TO COUNTS 5 AND 6, WHERE IT WAS CLAIMED THAT THE INCOME RECEIVED
FROM EATSUM WASN'T FULLY REPORTED BY THE DEFENDANT GIGLIO AND BY THE
DEFENDANT LIVORSI, IN CONNECTION WITH THEIR INDIVIDUAL RETURNS, I SAY
BECAUSE OF THAT DISTRIBUTIVE SHARE DIFFICULTY, DON'T CONSIDER EATSUM AT
ALL  ...  ."  LIVORSI NOW CONTENDS THAT THE EFFECT OF THAT CHARGE WAS
TO ELIMINATE THE $101,123.88 OF INCOME WHICH HE HAD REPORTED IN HIS
SWORN RETURN AS RECEIVED FROM THAT SOURCE IN THAT YEAR AND TO GIVE HIM
A CREDIT IN THAT AMOUNT WHICH MORE THAN OFFSET HIS UNDERSTATEMENT OF
INCOME FROM OTHER SOURCES, AND, THUS, ESTABLISHED THAT THERE WAS NO
DEFICIENCY IN HIS REPORTING OF INCOME.  THIS CONTENTION NEED NOT DETAIN
US LONG.  WHILE, OF COURSE, A CONVICTION UPON A CHARGE OF ATTEMPTING TO
EVADE ASSESSMENT OF INCOME TAXES BY THE FILING OF A FRAUDULENT RETURN
CANNOT STAND IN THE ABSENCE OF PROOF OF A DEFICIENCY, THE COURT'S
CHARGE DID NOT CREATE THE CREDIT CLAIMED BY LIVORSI.  IT ONLY WITHDREW
FROM THE JURY'S CONSIDERATION THE GOVERNMENT'S CLAIM THAT HIS INCOME
FROM EATSUM IN THAT YEAR WAS $127,164.70 MORE THAN HE HAD REPORTED IN
HIS RETURN.  THAT MEANING OF THE CHARGE COULD NOT HAVE BEEN
MISUNDERSTOOD BY THE JURY. 

COUNT 9 CHARGED LIVORSI AND OTHERS WITH ATTEMPTING TO EVADE PAYMENT
OF INCOME TAXES OF AMERICAN BRANDS CORPORATION FOR THE CALENDAR YEAR
1946 BY CONVERTING AND DIVERTING ITS ASSETS.  LIVORSI ARGUES THAT THERE
IS NO EVIDENCE TO SUPPORT HIS CONVICTION ON THAT COUNT.  WE MUST
DISAGREE.  THE EVIDENCE DISCLOSED THAT LIVORSI OWNED HALF OF THE
CAPITAL STOCK OF THAT CORPORATION AND FREQUENTLY CONFERRED WITH GIGLIO,
WHO OWNED THE OTHER HALF OF ITS CAPITAL STOCK, CONCERNING THE
OPERATIONS OF THE CORPORATION AND WAS FAMILIAR WITH ITS AFFAIRS; THAT
NO INCOME TAX WAS WITHHELD BY THE CORPORATION FROM HIS SALARY; AND THAT
FROM JANUARY 1, 1946, TO JUNE 16, 1947, HE WITHDREW FROM THE
CORPORATION MORE THAN $122,000, INCLUDING SALARY, WHILE THE CORPORATION
HAD A FEDERAL INCOME TAX LIABILITY FOR THE YEAR 1946 OF MORE THAN
$100,000, AS SHOWN BY ITS OWN RETURN, OF WHICH ONLY $300 HAD BEEN
PAID.  THIS EVIDENCE, WITH THE LEGITIMATE INFERENCES THAT MIGHT BE
DRAWN THEREFROM BY THE JURY, WAS CLEARLY SUFFICIENT TO SUPPORT THE
VERDICT ON COUNT 9. 

LIVORSI'S CONTENTION THAT THERE WAS NOT SUFFICIENT EVIDENCE TO
SUPPORT THE VERDICT AGAINST HIM ON COUNT 10, THE CONSPIRACY COUNT, WHEN
VIEWED IN THE LIGHT OF ALL THE FOREGOING FACTS, AND THOSE FOUND BY THE
COURT OF APPEALS, WHICH WE FIND ARE SUPPORTED BY THE RECORD, IS
ENTIRELY WITHOUT MERIT. 

LIVORSI ALSO CONTENDS THAT THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT
THE VERDICT AGAINST HIM ON COUNT 8, BUT SINCE THE SENTENCE ON THAT
COUNT RUNS CONCURRENTLY WITH THE SENTENCE ON COUNT 6, WHICH WE HAVE
AFFIRMED, IT IS UNNECESSARY TO CONSIDER HIS CONTENTIONS CONCERNING
COUNT 8.  SINCLAIR V. UNITED STATES, SUPRA; HIRABAYASHI V. UNITED
STATES, SUPRA; AND PINKERTON V. UNITED STATES, SUPRA. (FN16) 

SEVERAL OTHER POINTS RAISED BY PETITIONERS HAVE BEEN CAREFULLY
CONSIDERED AND ARE FOUND TO BE WITHOUT MERIT.  THE JUDGMENT IN EACH
CASE MUST BE AFFIRMED. 

FN1  26 U.S.C. (1952 ED.)  SECS.  145(B) AND 3793(B). 

THE FIRST FIVE COUNTS NAMED ONLY PETITIONER GIGLIO AND LOUIS J. ROTH
AS DEFENDANTS.  SINCE GIGLIO DOES NOT HERE CONTEST THE ADEQUACY OF THE
EVIDENCE TO SUSTAIN THOSE OR ANY OF THE OTHER COUNTS AGAINST HIM, AND
SINCE ROTH PLEADED GUILTY TO ALL COUNTS OF THE INDICTMENT AND WAS A
PRINCIPAL WITNESS FOR THE PROSECUTION AT THE TRIAL, THOSE COUNTS ARE
NOT HERE SUMMARIZED. 

THE REMAINING COUNTS IN ESSENCE CHARGED AS FOLLOWS: 

COUNT 6 CHARGED THAT LIVORSI AND ROTH, ON OR ABOUT SEPTEMBER 15,
1947, WILLFULLY ATTEMPTED TO EVADE ASSESSMENT OF INCOME TAXES OF
LIVORSI FOR THE CALENDAR YEAR 1946 BY FILING A FRAUDULENT RETURN. 

COUNT 7 CHARGED THAT GIGLIO, LAWN AND ROTH, FROM ABOUT SEPTEMBER 1,
1947, TO THE DATE OF FILING OF THE INDICTMENT, WILLFULLY ATTEMPTED TO
EVADE PAYMENT OF GIGLIO'S INCOME TAXES FOR THE CALENDAR YEAR 1946 BY
CONCEALING HIS ASSETS. 

COUNT 8 CHARGED THAT LIVORSI, FROM ABOUT SEPTEMBER 1, 1947, TO THE
DATE OF FILING OF THE INDICTMENT, WILLFULLY ATTEMPTED TO EVADE PAYMENT
OF HIS INCOME TAXES FOR THE CALENDAR YEAR 1946 BY CONCEALING HIS
ASSETS. 

COUNT 9 CHARGED THAT GIGLIO, LIVORSI, LAWN AND ROTH, FROM ABOUT
JANUARY 1, 1946, TO THE DATE OF FILING OF THE INDICTMENT, WILLFULLY
ATTEMPTED TO EVADE PAYMENT OF INCOME TAXES OF AMERICAN BRANDS
CORPORATION FOR THE CALENDAR YEAR 1946 BY CONVERTING AND DIVERTING ITS
ASSETS. 

COUNT 10 CHARGED THAT GIGLIO, LIVORSI, LAWN, ROTH AND AMERICAN BRANDS
CORPORATION FROM ABOUT JULY 1, 1945, TO THE DATE OF FILING OF THE
INDICTMENT, WILLFULLY CONSPIRED TO COMMIT THE SUBSTANTIVE OFFENSES
CHARGED IN COUNTS 1 THROUGH 9 OF THE INDICTMENT. 

COUNT 10 OF THE INDICTMENT WAS DISMISSED BY THE COURT AS TO AMERICAN
BRANDS CORPORATION AFTER THE JURY FAILED TO REPORT AS TO IT. 

FN2  LAWN WAS SENTENCED TO A YEAR AND A DAY ON EACH OF COUNTS 7, 9
AND 10, THE SENTENCES TO RUN CONCURRENTLY.  GIGLIO WAS SENTENCED TO A
TOTAL OF 15 YEARS.  LIVORSI WAS SENTENCED TO 5 YEARS ON EACH OF COUNTS
6, 9 AND 10 TO RUN CONSECUTIVELY, AND WAS SENTENCED TO 5 YEARS ON COUNT
8 TO RUN CONCURRENTLY WITH THE SENTENCE ON COUNT 6. 

FN3  THE PRINCIPAL ORGANIZATIONS WERE:  TAVERN FRUIT JUICE COMPANY, A
PARTNERSHIP OWNED BY GIGLIO AND LIVORSI; EATSUM FOOD PRODUCTS CO.,
LTD., A PARTNERSHIP OWNED 25% BY GIGLIO, 25% BY LIVORSI, AND 50% BY ONE
LUBBEN UNTIL MARCH 8, 1946, WHEN HE LEFT THE ENTERPRISE AND SOLD HIS
"DISTRIBUTIVE SHARE" IN THE PROFITS THEREOF TO GIGLIO AND LIVORSI; AND
A SERIES OF CORPORATIONS BEARING IN SOME COMBINATION THE WORD
"AMERICAN" WHICH WERE CREATED IN EARLY 1946 TO DRAIN OFF THE PROFITS OF
EATSUM THROUGH THE USE OF FRAUDULENT INVOICES AND WERE TO BE DISSOLVED
BEFORE THEIR INCOME TAXES BECAME DUE. 

FN4  THE COURT OF APPEALS FOUND THAT GENERALLY THREE MEANS OF EVASION
OF TAX ASSESSMENT WERE USED:  (1) THE FRAUDULENT ALLOCATION OF INCOME
AMONG THE VARIOUS COMPANIES AND INDIVIDUALS IN THE CONSPIRACY; (2) THE
FRAUDULENT OVERSTATEMENT OF EXPENSES; AND (3) THE FAILURE TO DISCLOSE
INCOME. 

FN5  THE EVASION OF PAYMENT WAS IN GENERAL ACCOMPLISHED BY DELAYING
DISCLOSURE OF INCOME TAX LIABILITIES THROUGH THE FILING OF RETURNS FROM
5 TO 15 MONTHS LATE; BY FAILING TO WITHHOLD INCOME TAXES ON SALARIES;
BY CONCEALMENT OF THE INDIVIDUAL ASSETS OF GIGLIO AND LIVORSI; AND BY
THE MISAPPROPRIATION, CONVERSION AND DIVERSION OF CORPORATE ASSETS. 

FN6  OF THE TOTAL, $573,683.73 WAS ADMITTED TO BE OWING BY GIGLIO,
LIVORSI AND AMERICAN BRANDS CORPORATION IN THE LONG-OVERDUE RETURNS
THEY FILED, AND ONLY $16,735.95 WAS PAID. 

FN7  THEY WERE FULL-TIME EMPLOYEES OF THE SEVERAL GIGLIO AND LIVORSI
ENTERPRISES. 

FN8  IN THEIR BRIEF ON THAT APPEAL PETITIONERS HAD ARGUED THAT THE
GOVERNMENT'S NOTICE OF APPEAL WAS NOT TIMELY FILED, BUT THEY DID NOT
MOVE TO DISMISS THE APPEAL UNTIL AFTER THE PERIOD OF LIMITATIONS HAD
RUN IN LATE SEPTEMBER 1953. 

FN9  IN SUPPORT OF THEIR MOTIONS PETITIONERS FILED A NUMBER OF
AFFIDAVITS RECITING IN ESSENCE THAT THE 1952 INDICTMENT WAS RETURNED
AFTER THE GOVERNMENT HAD SECURED TESTIMONY AND DOCUMENTS FROM
PETITIONERS IN VIOLATION OF THEIR CONSTIUTITONAL RIGHTS; THAT THE
PRESENT INDICTMENT IS VERY SIMILAR TO THE PRIOR ONE, AND THAT A REVENUE
AGENT HAD IMPLIED THAT SOME OF HIS COMPUTATIONS WERE BASED ON DOCUMENTS
STORED IN A ROOM IN WHICH THE DOCUMENTS OBTAINED FROM PETITIONERS WERE
ALSO KEPT. 

IN OPPOSITION TO THE MOTIONS THE GOVERNMENT FILED AFFIDAVITS MADE BY
ALL OF THE REVENUE AGENTS WHO HAD CONDUCTED INVESTIGATIONS LEADING TO
THE INDICTMENT AND BY ALL THE UNITED STATES ATTORNEYS WHO HAD BEEN
RESPONSIBLE FOR THE PROSECUTION OF THE CASE.  IN ESSENCE, THEY RECITED
THAT AFTER THE DISTRICT COURT DISMISSED THE 1952 INDICTMENT A
CONFERENCE WAS CALLED, BY AN ASSISTANT UNITED STATES ATTORNEY, OF ALL
REVENUE AGENTS WHO HAD CONDUCTED THE INVESTIGATIONS; THAT THEY WERE
THERE TOLD THAT IT WOULD BE NECESSARY TO OBTAIN A NEW INDICTMENT WHICH
WAS NOT TO BE BASED IN ANY WAY, HOWEVER REMOTE, UPON TESTIMONY OR
PERSONAL OR PARTNERSHIP DOCUMENTS OBTAINED FROM PETITIONERS IN THE 1952
GRAND JURY PROCEEDINGS, AND ANY DOUBTS ABOUT THE USE OF ANY EVIDENCE
WERE TO BE RESOLVED IN FAVOR OF EXCLUSION; THAT NONE OF THE TESTIMONY
OR PERSONAL OR PARTNERSHIP RECORDS, PRODUCED BY PETITIONERS BEFORE THE
1952 GRAND JURY, WAS IN ANY WAY USED IN OBTAINING THE PRESENT
INDICTMENT; AND THAT LONG BEFORE 1952 THE GOVERNMENT HAD IN ITS
POSSESSION COPIES AND MICROFILM ENLARGEMENTS OF BANK CHECKS, BANK
STATEMENTS AND BOOKS AND RECORDS PERTAINING TO PETITIONERS'
TRANSACTIONS, WHICH HAD BEEN SECURED FROM BANKS, THIRD PERSONS, A NEW
JERSEY RECEIVER, GOVERNMENT AGENCIES, AND ABANDONED BOOKS AND RECORDS
RELATING TO PETITIONERS' BUSINESSES.  THE AFFIDAVIT OF THE ASSISTANT
UNITED STATES ATTORNEY IN CHARGE OF THE CASE UNEQUIVOCALLY RECITED THAT
NONE OF THE MATERIALS OBTAINED FROM PETITIONERS IN THE 1952 GRAND JURY
PROCEEDING WOULD BE USED IN THE FUTURE COURSE OF THE CASE. 

FN10  THE COURT STATED AS ITS REASONS:  "THE UNITED STATES ATTORNEY
HAS SWORN THAT THIS MATERIAL WILL NOT BE USED IN THE FUTURE COURSE OF
THIS CASE, AND AT THIS STAGE OF THE PROCEEDINGS, THAT OATH IS
SUFFICIENT.  THE GRANTING OF DEFENDANTS' MOTION TO SUPPRESS AT THIS
TIME WOULD NECESSITATE AN INVESTIGATION OF ALL OF THE GOVERNMENT'S
EVIDENCE.  SUCH AN INVESTIGATION WOULD ENTAIL A GREAT DEAL OF USELESS
EFFORT BECAUSE MUCH OF THIS MATERIAL, WHICH HAS BEEN COLLECTED SINCE
1948, WILL NOT BE USED AT THE TRIAL."  UNITED STATES V. GIGLIO, 16
F.R.D., AT 270, 271. 

FN11  "Q.  IN WHOSE HANDWRITING ARE THE ENTRIES ON GOVERNMENT'S
EXHIBIT 61-B FOR IDENTIFICATION?  I THINK YOU SAID IT IS THE STUB
BOOK.  A. TO THE BEST OF MY RECOLLECTION, THOSE ARE MR. CERONE'S. 

"Q.  HOW DO YOU SPELL CERONE?  A. C-E-R-O-N-E. 

"Q.  HE WAS ONE OF YOUR EMPLOYEES, MR. ROTH?  A. NO, HE WAS A
BOOKKEEPER EMPLOYED BY TAVERN FRUIT JUICE. 

"Q.  WOULD THE SAME BE TRUE WITH REGARD TO THE CHECK, THE FACE OF THE
CHECK, PAYEE OF THE CHECK?  A.  THE PAYEE OF THE CHECK AND THE AMOUNT? 

"Q.  THE HANDWRITING IS WHAT I AM ASKING ABOUT.  A. THE HANDWRITING,
THAT LOOKS LIKE WILLIAM GIGLIO'S HANDWRITING. 

"Q.  THE MAKER OF THE CHECK FOR THE $15,000?  A. YES, THE SIGNATURE. 

"Q.  THEY LOOK LIKE HIS HANDWRITING, DO THEY?  A. YES, SIR. 

"Q.  AND THIS 61-B FOR IDENTIFICATION, YOU HAVE TOLD ME THAT THAT
LOOKED LIKE THE PRINTING OR THE WRITING OF MR. CERONE, DID YOU NOT?  A.
YES, SIR." 

FN12  THOUGH AT TIMES, IN COLLOQUIES WITH THE COURT, COUNSEL FOR
PETITIONERS WAS EQUIVOCAL, THE FOLLOWING IS TYPICAL OF THE POSITION
TAKEN BY HIM: 

COUNSEL:  "I REALLY DON'T SEE HOW I CAN GET ADJUDICATED THE QUESTION
OF THE ILLEGALITY OF THE INDICTMENT BEFORE YOU WITHOUT CALLING ALL
THESE PEOPLE WHO MADE AFFIDAVITS BEFORE JUDGE PALMIERI.  NOW, THAT
OBVIOUSLY WOULD BE, WELL, VERY DISRUPTIVE OF YOUR TRIAL.  I WOULD NEVER
THINK OF DOING IT IF  ...  IT DIDN'T SEEM TO ME THAT WAS ALL I HAD  ...
.  HAVE I MADE IT PLAIN? 

"THE COURT:  I THINK YOU HAVE, BUT I WANT TO BE SURE.  NOW, THE WHOLE
PURPOSE OF THIS IS TO GO TO THE PROCEDURAL VALIDITY OF THE
INDICTMENT." 

COUNSEL:  "THAT IS IT, YES, SIR.  THAT IS IT, THAT IS JUST IT
EXACTLY. 

"THE COURT:  AND IT IS A QUESTION, REALLY, OF WHAT HAPPENED BEFORE
THE GRAND JURY."  COUNSEL: "THAT'S IT, REALLY, JUST THAT. 

"THE COURT:  RATHER THAN ITS EFFECT UPON WHAT YOU MIGHT CALL THE
SUBSTANTIVE ISSUES OF THE CASE OR THE GUILT OR INNOCENCE OF THESE
DEFENDANTS, LET US SAY." 

COUNSEL:  "MY ANSWER IS AN UNEQUIVOCAL YES, AND I DON'T HAVE TO LOOK
AT A RECORD TO ANSWER IT." 

FN13  THE RECORD SHOWS THAT, ALTHOUGH THERE WAS NO OBJECTION TO THE
QUESTION, COUNSEL FOR THE GOVERNMENT STATED TO THE COURT, OUT OF THE
HEARING OF THE JURY, THAT PRIOR TO THE DISMISSAL OF THE 1952 INDICTMENT
THE WITNESS HAD EXAMINED PARTNERSHIP RECORDS PRODUCED BY PETITIONERS
BEFORE THE 1952 GRAND JURY, AND SAID:  "IF COUNSEL ELICITS TESTIMONY
NOW ABOUT THOSE FACTS, THERE IS GOING TO BE BEFORE THIS COURT EVIDENCE
WHICH JUDGE GODDARD HELD IMPROPER  ...  .  IF COUNSEL WISHES TO EXAMINE
INTO THIS FIELD I THINK HE SHOULD DO IT OUTSIDE THE PRESENCE OF THE
JURY, BECAUSE IT MIGHT BE PREJUDICIAL ERROR EVEN IF HE VOLUNTARILY DOES
IT."  COUNSEL FOR PETITIONERS THEN MADE PLAIN THAT HIS PURPOSE WAS TO
DETERMINE WHETHER TAINTED EVIDENCE WAS "USED BY THE GRAND JURY THAT
FOUND THIS INDICTMENT," AND HE FURTHER SAID, "I HAVE NO OTHER WAY  ...
THAN TO DO IT HERE."  COUNSEL FOR THE GOVERNMENT THEN SAID TO THE
COURT:  "NOW, THE QUESTION SPECIFICALLY PRESENTED TO THE WITNESS WAS
BROAD AND INCLUDES PARTNERSHIP RECORDS ILLEGALLY PRODUCED AND
PARTNERSHIP RECORDS LEGALLY OBTAINED.  THERE CAN'T BE OBJECTION TO THE
SECOND PART, BUT THE QUESTION IS TOO BROAD."  COUNSEL FOR PETITIONERS
REPLIED:  "WELL, I AM NOT GOING INTO SOMETHING HALF-WAY  ... ."  THE
COURT THEN SAID: "ALL RIGHT, I THINK THAT IS THE WAY I SHOULD RULE." 
IT IS OBVIOUS THAT NONE OF THIS CONSTITUTES ANY SUPPORT FOR
PETITIONERS' CLAIM THAT THEY WERE DENIED AN OPPORTUNITY TO CROSS
EXAMINE THE WITNESS TO DETERMINE WHETHER TAINTED EVIDENCE HAD BEEN OR
WAS BEING USED BY THE GOVERNMENT AT THE TRIAL.    FN14  IN FACT, ALL
PETITIONERS SOUGHT TO SHOW BY THIS WITNESS WAS THAT WHEN HE CAUSED
PETITIONERS TO BE SUBPOENAED TO APPEAR BEFORE THE 1952 GRAND JURY HE
KNEW THAT CRIMINAL INFORMATIONS CHARGING TAX EVASIONS WERE THEN PENDING
AGAINST THEM, AND THAT THESE PROSECUTIONS WERE INSTITUTED IN "BAD
FAITH." 

FN15  PETITIONER LAWN ALSO CONTENDS THAT A STATEMENT MADE BY THE
GOVERNMENT'S ATTORNEY IN HIS CLOSING SUMMATION TO THE JURY, SAYING, IN
PERTINENT PART, "WE VOUCH FOR ROTH AND LUBBEN BECAUSE WE THINK THEY ARE
TELLING THE TRUTH," DEPRIVED HIM OF A FAIR TRIAL.  NO OBJECTION WAS
MADE TO THE STATEMENT AT THE TRIAL.  THE GOVERNMENT'S ATTORNEY DID NOT
SAY NOR INSINUATE THAT THE STATEMENT WAS BASED ON PERSONAL KNOWLEDGE OR
ON ANYTHING OTHER THAN THE TESTIMONY OF THOSE WITNESSES GIVEN BEFORE
THE JURY, AND THEREFORE IT WAS NOT IMPROPER.  CF. HENDERSON V. UNITED
STATES, 218 F.2D 14, 19; UNITED STATES V. HOLT, 108 F.2D 365, 370;
TUCKERMAN V. UNITED STATES, 291 F. 958, 969.  MOREOVER, PETITIONERS'
COUNSEL IN HIS SUMMATION TO THE JURY HAD ARGUED THAT THE GOVERNMENT'S
CASE WAS A PERSECUTION OF PETITIONERS, HAD BEEN INSTITUTED IN BAD FAITH
AT THE INSTANCE OF A GROUP OF REVENUE AGENTS, AND WAS SUPPORTED
"SOLELY" BY THE TESTIMONY OF ROTH AND LUBBEN WHO WERE ADMITTED
PERJURERS, AND COUNSEL IN HIS OPENING STATEMENT HAD SAID THAT THE
UNITED STATES ATTORNEY AND HIS ASSISTANT IN CHARGE OF THE CASE "HAD
BEEN INSTRUCTED, OR IN MY OPINION THEY NEVER WOULD HAVE DONE THIS." 
THESE COMMENTS CLEARLY INVITED THE REPLY WHICH PETITIONER LAWN NOW
ATTACKS.  CF. GRIDLEY V. UNITED STATES, 44 F.2D 716, 739; UNITED STATES
V. BATTIATO, 204 F.2D 717.  IN ADDITION, THE COURT IN HIS CHARGE TO THE
JURY, AFTER TELLING THEM THAT THEY WERE THE SOLE JUDGES OF THE
CREDIBILITY OF THE WITNESSES, CALLED PARTICULAR ATTENTION TO THE FACT
THAT ROTH WAS AN ACCOMPLICE AND SAID:  "YOU HAVE GOT TO BE PARTICULARLY
CAREFUL IN SCRUTINIZING HIS TESTIMONY TO SEE WHETHER TO SAVE HIS OWN
SKIN HE LIED TO HURT SOMEBODY ELSE OR WHETHER HE HAD SOME OTHER MOTIVE
FOR LYING TO HURT SOMEBODY ELSE."  AS TO LUBBEN, THE CHARGE CONTINUED:
"I AM GOING TO TELL YOU TO BE JUST AS CAREFUL WITH HIS TESTIMONY AS YOU
WOULD WITH AN ACCOMPLICE, AND LOOK AND SCRUTINIZE IT CAREFULLY."  WE
THINK THE FOREGOING SHOWS CLEARLY THAT THERE IS NO MERIT IN LAWN'S
CONTENTION. 

FN16  PETITIONERS GIGLIO AND LIVORSI CONTEND THAT THE TRIAL COURT
ERRED IN REFUSING THEIR MOTION, MADE AFTER SEVERAL DAYS OF CROSS
EXAMINATION OF LUBBEN AT THE TRIAL, FOR PRODUCTION OF LUBBEN'S FEDERAL
INCOME TAX RETURN FOR 1946, ALL TESTIMONY GIVEN BY LUBBEN "BEFORE THE
GRAND JURY THAT FOUND THIS INDICTMENT OR FOUND ANY OTHER INDICTMENT
AGAINST THESE DEFENDANTS," AND ALL WRITTEN STATEMENTS MADE BY LUBBEN TO
ANY AGENT OF THE GOVERNMENT.  THIS ISSUE WAS NOT RAISED IN THE COURT OF
APPEALS.  ONLY IN EXCEPTIONAL CASES WILL THIS COURT REVIEW A QUESTION
NOT RAISED IN THE COURT BELOW.  DUIGNAN V. UNITED STATES, 274 U.S. 195,
200; HUSTY V. UNITED STATES, 282 U.S. 694, 701, 702.  THERE ARE NO
EXCEPTIONAL CIRCUMSTANCES HERE.  CF. UNITED BROTHERHOOD OF CARPENTERS
V. UNITED STATES, 330 U.S. 395, 412.  MOREOVER, THE QUESTION WAS NOT
MENTIONED IN THE PETITION FOR CERTIORARI FILED IN THIS COURT.  OUR RULE
23(1)(C) PROVIDES, IN PERTINENT PART:  "ONLY THE QUESTIONS SET FORTH IN
THE PETITION OR FAIRLY COMPRISED THEREIN WILL BE CONSIDERED BY THE
COURT."  THE QUESTION IS NOT PROPERLY HERE.  CF. IRVINE V. CALIFORNIA,
347 U.S. 128, 129. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BRENNAN JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

I AGREE WITH ALL OF THE COURT'S OPINION EXCEPT PART II RELATING TO
GOVERNMENT EXHIBITS 61-A AND 61-B, WHICH ARE THE COPIES OF THE CANCELED
CHECK AND STUB EVIDENCING THE $15,000 PAYMENT TO LAWN.  THIS LEADS ME
TO CONCUR IN THE AFFIRMANCE OF THE CONVICTIONS OF GIGLIO AND LIVORSI,
BUT AS TO LAWN I THINK A DIFFERENT RESULT IS REQUIRED. 

THE COURT APPEARS TO RECOGNIZE THAT THESE EXHIBITS WERE EXCLUDABLE AS
"TAINTED" EVIDENCE, SINCE THEY WERE GOVERNMENT-MADE COPIES OF DOCUMENTS
WHICH, AS HELD IN A PRIOR DECISION, UNITED STATES V. LAWN, 115 F. SUPP.
674, HAD BEEN OBTAINED FROM LAWN IN VIOLATION OF HIS CONSTITUTIONAL
RIGHTS.  NEVERTHELESS THE COURT SUSTAINS THEIR ADMISSIBILITY ON THE
GROUND THAT LAWN'S COUNSEL "COUNSCIOUSLY AND INTENTIONALLY" WAIVED AT
TRIAL ANY OBJECTION TO THEM.  THIS VIEW I CANNOT SHARE, FOR IT SEEMS TO
ME THE COURT'S ACTION FALLS SHORT OF WHAT WE SHOULD DO IN HOLDING THE
GOVERNMENT TO THE STRICTEST MEASURE OF ACCOUNTABILITY ON ITS REPEATED
REPRESENTATIONS TO COURT AND DEFENSE COUNSEL THAT IT WAS NOT USING ANY
"TAINTED" EVIDENCE AT THE TRIAL. 

THE COURT JUSTIFIES ITS FINDING OF WAIVER BY REASONING THAT THE "NO
OBJECTION" REMARK OF LAWN'S COUNSEL AT THE TIME THESE EXHIBITS WERE
INTRODUCED REFLECTED HIS DELIBERATE CHOICE BETWEEN HAVING THESE
DOCUMENTS IN, OR SECURING THEIR EXCLUSION FROM, THE CASE.  BUT TO ME
THIS REASONING IS QUITE UNCONVINCING.  AT THE OUTSET, IT SHOULD BE
NOTED THAT THE COURT HERE ASSUMES THAT COUNSEL REALIZED THESE
PARTICULAR PHOTOSTATS OF THE ORIGINAL CHECK AND STUB WERE "TAINTED"
COPIES.  THAT, IN MY OPINION, IS A HAZARDOUS ASSUMPTION.  IT IS TRUE
THAT EACH EXHIBIT BORE THE TELL-TALE 1952 GRAND JURY MARKINGS, BUT
ASSUMING, AS I DO, THAT THE GOVERNMENT'S USE OF THESE DOCUMENTS WAS THE
RESULT OF INADVERTENCE, IT IS EQUALLY TRUE THAT THIS RED LIGHT ESCAPED
THE NOTICE OF THE PROSECUTOR AS WELL AS THAT OF THE TRIAL JUDGE, WHO
THE RECORD SHOWS WAS CONSTANTLY ALERT AND SENSITIVE THROUGHOUT THE
TRIAL TO THE POSSIBILITY OF "TAINTED" EVIDENCE FILTERING INTO THE
CASE.  I SEE NO REASON FOR ATTRIBUTING TO DEFENSE COUNSEL GREATER
AWARENESS ON THIS SCORE THAN THAT POSSESSED BY THE PROSECUTOR AND THE
JUDGE. 

FURTHER, IT IS BY NO MEANS AS APPARENT TO ME AS IT IS TO THE COURT
THAT COUNSEL WANTED THESE EXHIBITS IN THE CASE FOR THE PURPOSE OF
CORROBORATING LAWN'S EXPLANATION OF THE $15,000 PAYMENT AS BEING AN
INNOCENT PERSONAL LOAN FROM GIGLIO RATHER THAN, AS CLAIMED BY THE
GOVERNMENT, AN INCRIMINATORY PAYMENT FROM THE PARTNERSHIP.  (FN1)  AS I
READ THE RECORD ON THIS EPISODE, IT SEEMS JUST AS REASONABLE TO SUPPOSE
THAT COUNSEL'S VOIR DIRE EXAMINATION OF THE WITNESS THROUGH WHOM THESE
EXHIBITS WERE INTRODUCED, ENDING WITH HIS "NO OBJECTION" REMARK, WAS
BUT THE FAMILIAR KIND OF JURY PLAY WHICH A GOOD TRIAL LAWYER SOMETIMES
USES TO AFFECT AN APPEARANCE OF UNCONCERN TOWARDS DAMAGING EVIDENCE
WHICH HE KNOWS HE CANNOT KEEP OUT OF THE CASE.  IT IS OF INTEREST THAT
DEFENSE COUNSEL DID NOT EVEN MENTION THE LOAN THEORY IN HIS SUMMATION;
THIS TENDS TO SHOW THAT, HAVING DONE WHAT HE COULD WITH THESE EXHIBITS
AT THE TIME OF THEIR RECEIPT IN EVIDENCE, HIS TACTICS WERE TO LEAVE
WELL ENOUGH ALONE.  ON THE OTHER HAND, IT CAN HARDLY BE DENIED THAT
FROM A JURY'S STANDPOINT THE ACTUAL CANCELED CHECK BEARING LAWN'S
ENDORSEMENT WAS OF GREAT VALUE TO THE GOVERNMENT.  IN A JURY'S EYES THE
CANCELED CHECK WOULD BE APT TO BE CONSIDERED AN INSTRUMENT OF CRIME
IMPLICATING LAWN IN THE CONSPIRACY, AND SO INDEED THE PROSECUTOR PLAYED
IT UP WITH TELLING EFFECT IN HIS SUMMATION. 

IN SHORT, I THINK THE COURT HAS VIEWED THIS EPISODE IN AN UNREAL
LIGHT.  AT LEAST THERE IS MUCH ROOM FOR DOUBT AS TO WHAT COUNSEL
ACTUALLY INTENDED.  WHERE, AS HERE, WE ARE DEALING WITH EXHIBITS WHOSE
USE THE GOVERNMENT CAN JUSTIFY AT ALL ONLY ON A PLEA OF GOOD-FAITH
INADVERTENCE, I THINK THE PETITIONER IS ENTITILED TO THE BENEFIT OF
THAT DOUBT, PARTICULARLY IN VIEW OF THE GOVERNMENT'S REPEATED
UNEQUIVOCAL REPRESENTATIONS THAT IT WOULD NOT USE ANY OF THE "TAINTED"
EVIDENCE AT THE TRIAL.  THE COURT'S CONTRARY VIEW I DEEM INCONSISTENT
WITH THE HIGH STANDARDS WHICH PAST DECISIONS HAVE INSISTED BE
MAINTAINED IN THE CONDUCT OF FEDERAL CRIMINAL TRIALS.  SEE MCNABB V.
UNITED STATES, 318 U.S. 332, 340-341.  "THE DIGNITY OF THE UNITED
STATES GOVERNMENT WILL NOT PERMIT THE CONVICTION OF ANY PERSON ON
TAINTED TESTIMONY."  MESAROSH V. UNITED STATES, 352 U.S. 1, 9. 

IN MY OPINION THE ADMISSION OF THESE EXHIBITS WAS PREJUDICIAL ERROR,
AND IF NOTHING FURTHER APPEARED I THINK WE WOULD BE REQUIRED TO REVERSE
FOR A NEW TRIAL.  HOWEVER, ADDITIONAL EVIDENCE NOW PROFFERED BY THE
GOVERNMENT INDICATES THAT OTHER "INNOCENT" COPIES OF THE SAME CHECK AND
STUB WERE IN THE HANDS OF THE NEW JERSEY FEDERAL AUTHORITIES AT THE
TIME OF THE NEW YORK TRIAL.  (FN2)  HAD THE EXISTENCE OF SUCH COPIES
BEEN KNOWN TO THE NEW YORK PROSECUTOR, THE ERROR ARISING FROM THE USE
OF THE "TAINTED" COPIES SHOULD BE DEEMED HARMLESS, FOR IF OBJECTION TO
THESE EXHIBITS HAD BEEN MADE THE PROSECUTOR COULD HAVE SUBSTITUTED
"INNOCENT" COPIES.  IF, ON THE OTHER HAND, THE FEDERAL AUTHORITIES IN
NEW JERSEY HAD NO SUCH COPIES OR IF IN ANY EVENT THE NEW YORK
PROSECUTOR WAS UNAWARE OF THEIR POSSESSION OF THE COPIES, REVERSAL
WOULD STILL BE REQUIRED ON GROUNDS OF PREJUDICIAL ERROR, SINCE THE
PROSECUTOR WOULD NOT HAVE BEEN IN A POSITION TO SUBSTITUTE "INNOCENT"
COPIES HAD THE "TAINTED" COPIES BEEN OBJECTED TO AND EXCLUDED AT THE
TRIAL. 

ALTHOUGH, AS THE COURT PROPERLY HOLDS, WE CANNOT PASS UPON THE
ACCURACY OF THIS ADDITIONAL EVIDENCE IN DETERMINING THE ISSUES BEFORE
US, I THINK THE GOVERNMENT'S PROFFER MAY PROPERLY BE TAKEN INTO ACCOUNT
IN DECIDING THE NATURE OF THE JUDGMENT WE SHOULD ENTER.  SEE 28 U.S.C.
SEC. 2106; CF. UNITED STATES V. SHOTWELL MANUFACTURING CO., 355 U.S.
233.  THE PETITIONER, BY MAKING HIS SPECIFIC OBJECTION TO ADMISSION OF
THE DISPUTED EXHIBITS FOR THE FIRST TIME ON APPEAL, GAVE THE GOVERNMENT
NO OCCASION TO INTRODUCE THE "INNOCENT" COPIES AT THE TRIAL AND THEREBY
AVOID ERROR.  HE SHOULD NOT NOW BE PERMITTED TO PRECLUDE THE GOVERNMENT
FROM SHOWING THAT THE ERROR COMPLAINED OF WAS HARMLESS.  IN THESE
CIRCUMSTANCES I THINK THE PROPER COURSE FOR US IS TO VACATE THE
JUDGMENT OF THE COURT OF APPEALS AS TO LAWN, AND TO REMAND THE CASE TO
THE DISTRICT COURT FOR THE PURPOSE OF DETERMINING WHETHER "INNOCENT"
COPIES OF THESE EXHIBITS WERE WITHIN REACH OF THE NEW YORK PROSECUTOR
AT THE TIME OF TRIAL.  IF THE COURT SO FINDS, IT SHOULD BE INSTRUCTED
TO LET LAWN'S CONVICTION STAND, AND IF IT FINDS OTHERWISE, TO GRANT HIM
A NEW TRIAL. 

FN1  IT IS DIFFICULT TO BELIEVE THAT COUNSEL COULD HAVE FOUND IN
THESE EXHIBITS THE IMPORTANT CORROBORATIVE VALUE WHICH THE COURT NOW
ATTRIBUTES TO THEM.  THE ORIGINAL RECORDING OF THE $15,000 PAYMENT AS
"LEGAL EXPENSE" ON TAVERN'S BOOKS HAD BEEN MADE BY THE COMPANY
ACCOUNTANT ONLY AFTER HE HAD CONSULTED GIGLIO, AND THERE IS NO DISPUTE
THAT THE SUBSEQUENT ALTERATION IN THIS ENTRY TO REFLECT THE PAYMENT AS
A TRANSACTION INVOLVING GIGLIO PERSONALLY RATHER THAN THE PARTNERSHIP
WAS URGED BY LAWN.  ONLY BECAUSE OF LAWN'S INSISTENCE DID THE $15,000
"PAYMENT" TAKE ON ITS SUBSEQUENT GUISE AS A LOAN FROM GIGLIO. 

FN2  THE GOVERNMENT ASSERTS THAT SUCH COPIES WERE VOLUNTARILY
PRODUCED BY LAWN AT A HEARING WITH REFERENCE TO HIS OWN INCOME TAX
RETURNS WHICH WAS HELD IN NEW JERSEY ON MAY 12, 1952. 
..END :













REEVES V. ALABAMA 355 U.S. 368 


NO. 66.  ARGUED JANUARY 8-9, 1958 - DECIDED JANUARY 13, 1958 -
CERTIORARI DISMISSED AS IMPROVIDENTLY GRANTED - REPORTED BELOW:  264
ALA. 476, 88 SO. 2D 561. 


REEVES V. ALABAMA. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED AS IMPROVIDENTLY GRANTED. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :















GORDON V. TEXAS 355 U.S. 369 


NO. 71.  ARGUED JANUARY 9, 1958 - DECIDED JANUARY 13, 1958 - 165 TEX.
CR. R. - , 310 S.W.2D 328, AFFIRMED. 


GORDON V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  TWENTY-FIRST AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES.  CARTER V. VIRGINIA, 321 U.S. 131. 
..END :

















SOUTHERN RAILWAY CO. V. UNITED STATES 355 U.S. 370 


NO. 579.  DECIDED JANUARY 13, 1958 - 154 F. SUPP. 562, AFFIRMED. 


SOUTHERN RAILWAY CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















ONE, INCORPORATED, V. OLESEN 355 U.S. 371 


NO. 290.  DECIDED JANUARY 13, 1958 - 241 F.2D 772, REVERSED. 


ONE, INCORPORATED, V. OLESEN, POSTMASTER OF LOS ANGELES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IS REVERSED. 
ROTH V. UNITED STATES, 354 U.S. 476. 
..END :
















SUNSHINE BOOK CO. V. SUMMERFIELD 355 U.S. 372 


NO. 587.  DECIDED JANUARY 13, 1958 - 101 U.S. APP. D.C. 358, 249 F.2D
114, REVERSED. 


SUNSHINE BOOK CO. ET AL. V. SUMMERFIELD, POSTMASTER GENERAL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
IS REVERSED.  ROTH V. UNITED STATES, 354 U.S. 476. 
..END :















HEIKKINEN V. UNITED STATES 355 U.S. 273 


NO. 89.  ARGUED DECEMBER 10, 1957.  - DECIDED JANUARY 6, 1958.  - 240
F.2D 94, REVERSED. 


AN ALIEN WHO HAD BEEN ORDERED DEPORTED WAS CONVICTED OF VIOLATING SEC.
20(C) OF THE IMMIGRATION ACT OF 1917, AS AMENDED, BY "WILLFULLY" (1)
FAILING TO DEPART FROM THE UNITED STATES, AND (2) FAILING TO MAKE
TIMELY APPLICATION FOR TRAVEL OR OTHER DOCUMENTS NECESSARY TO HIS
DEPARTURE, WITHIN SIX MONTHS FROM THE DATE OF THE FINAL ORDER OF
DEPORTATION.  HELD:  ON THE RECORD IN THIS CASE, THE EVIDENCE WAS
INSUFFICIENT TO SUPPORT THE VERDICT, AND THE CONVICTION IS REVERSED. 
PP. 274-280. 

1.  THERE BEING NO EVIDENCE THAT ANY COUNTRY WAS WILLING TO RECEIVE
HIM, IT CANNOT BE SAID THAT THERE WAS ANY EVIDENCE TO SUPPORT A FINDING
THAT HE "WILLFULLY" FAILED TO DEPART.  P. 276. 

2.  IN VIEW OF STATEMENTS MADE TO HIM BY AN IMMIGRATION INSPECTOR
INDICATING THAT THE IMMIGRATION AND NATURALIZATION SERVICE WOULD TAKE
STEPS TO OBTAIN TRAVEL DOCUMENTS FOR HIM, AND IN VIEW OF A LETTER TO
HIM FROM THE OFFICER IN CHARGE STATING THAT ARRANGEMENTS WERE BEING
MADE TO EFFECT HIS DEPORTATION AND THAT HE WOULD BE NOTIFIED WHEN AND
WHERE TO PRESENT HIMSELF FOR DEPORTATION, IT CANNOT BE SAID THAT THERE
WAS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT HE ACTED "WILLFULLY"
IN FAILING TO MAKE TIMELY APPLICATION FOR THE DOCUMENTS NECESSARY TO
HIS DEPARTURE.  PP. 276-280. 

HEIKKINEN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE LEGALITY OF CONVICTIONS OF PETITIONER, AN
ALIEN PREVIOUSLY ORDERED DEPORTED, FOR (1) WILLFUL FAILURE TO DEPART
FROM THE UNITED STATES, AND (2) WILLFUL FAILURE TO MAKE TIMELY
APPLICATION IN GOOD FAITH FOR TRAVEL OR OTHER DOCUMENTS NECESSARY TO
HIS DEPARTURE, WITHIN SIX MONTHS FROM THE DATE OF THE FINAL ORDER OF
DEPORTATION. 

AMENDED, 57 STAT. 553, 64 STAT. 1012, 8 U.S.C. (1946 ED., SUPP. IV)
SEC. 156(C), PROVIDED, IN PERTINENT PART, THAT "ANY ALIEN AGAINST WHOM
AN ORDER OF DEPORTATION IS OUTSTANDING  ...  WHO SHALL WILLFULLY FAIL
OR REFUSE TO DEPART FROM THE UNITED STATES WITHIN A PERIOD OF SIX
MONTHS FROM THE DATE OF SUCH ORDER OF DEPORTATION, OR FROM THE DATE OF
THE ENACTMENT OF THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950,
WHICHEVER IS THE LATER, OR SHALL WILLFULLY FAIL OR REFUSE TO MAKE
TIMELY APPLICATION IN GOOD FAITH FOR TRAVEL OR OTHER DOCUMENTS
NECESSARY TO HIS DEPARTURE, 

...  SHALL UPON CONVICTION BE GUILTY OF A FELONY, AND SHALL BE
IMPRISONED NOT MORE THAN TEN YEARS ...  ."  IT IS THE ABOVE-QUOTED
PROVISIONS OF SEC. 20(C) THAT ARE INVOLVED HERE. 

PETITIONER, A NATIVE OF FINLAND, WENT TO CANADA IN 1910 AND LATER
ACQUIRED CANADIAN CITIZENSHIP.  HE ENTERED THE UNITED STATES IN 1916
AND, EXCEPT FOR SEVERAL FOREIGN TRIPS, HAS SINCE RESIDED HERE.  A FINAL
ORDER OF DEPORTATION WAS ENTERED AGAINST HIM ON APRIL 9, 1952, UNDER
THE ACT OF OCTOBER 16, 1918, 40 STAT. 1012, AS AMENDED, 41 STAT. 1008,
54 STAT. 673, 64 STAT. 1006, 1008, 8 U.S.C. (1946 ED., SUPP. IV) SEC.
137, (FN1) BY REASON OF HIS MEMBERSHIP IN THE COMMUNIST PARTY OF THE
UNITED STATES FROM 1923 TO 1930.  (FN2) 

ON NOVEMBER 10, 1953, PETITIONER WAS INDICTED, IN TWO COUNTS, IN THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN. 
THE FIRST COUNT CHARGED HIM WITH WILLFUL FAILURE TO DEPART FROM THE
UNITED STATES WITHIN SIX MONTHS FROM THE DATE OF THE DEPORTATION
ORDER.  THE SECOND COUNT CHARGED HIM WITH WILLFUL FAILURE TO MAKE
TIMELY APPLICATION IN GOOD FAITH FOR TRAVEL OR OTHER DOCUMENTS
NECESSARY TO HIS DEPARTURE FROM THE UNITED STATES WITHIN SIX MONTHS
FROM THE DATE OF THE DEPORTATION ORDER.  UPON A TRIAL BEFORE A JURY HE
WAS CONVICTED ON BOTH COUNTS.  HE WAS SENTENCED TO IMPRISONMENT FOR A
TERM OF FIVE YEARS ON COUNT 1, AND IMPOSITION OF SENTENCE ON COUNT 2
WAS SUSPENDED UNTIL COMPLETION OF SERVICE OF THE SENTENCE ON COUNT 1. 
THE COURT OF APPEALS AFFIRMED.  240 F.2D 94.  WE GRANTED CERTIORARI. 
353 U.S. 935. 

PETITIONER CHALLENGES THE JUDGMENTS OF CONVICTION ON A NUMBER OF
GROUNDS, BUT IN THE VIEW WE TAKE OF THE CASE IT IS NECESSARY TO
CONSIDER ONLY THE FIRST GROUND, NAMELY, THAT THE EVIDENCE IS
INSUFFICIENT TO SUPPORT THE VERDICT ON EITHER COUNT. 

THIS IS A CRIMINAL CASE.  IT IS THEREFORE NECESSARY THAT THE
PROSECUTION ADDUCE EVIDENCE SUFFICIENT TO SUPPORT A FINDING OF GUILT
BEYOND A REASONABLE DOUBT.  THIS IS NO LESS TRUE WHEN THE DEFENDANT IS
AN ALIEN.  HARISIADES V. SHAUGHNESSY, 342 U.S. 580, 586.  THE CRUCIAL
ELEMENT OF THE CRIME CHARGED IN THE FIRST COUNT IS THAT PETITIONER "DID
WILLFULLY FAIL TO DEPART FROM THE UNITED STATES" WITHIN SIX MONTHS FROM
THE DEPORTATION ORDER OF APRIL 9, 1952.  A THOROUGH REVIEW OF THE
RECORD DISCLOSES NO EVIDENCE THAT ANY COUNTRY WAS WILLING, IN THAT
PERIOD, TO RECEIVE PETITIONER.  (FN3)  THERE CAN BE NO WILLFUL FAILURE
TO DEPART UNTIL "THE COUNTRY WILLING TO RECEIVE THE ALIEN IS
IDENTIFIED."  UNITED STATES V. SPECTOR, 343 U.S. 169, 171.  IT
THEREFORE CANNOT BE SAID THAT THERE WAS ANY EVIDENCE TO SUPPORT THE
JURY'S FINDING THAT PETITIONER "DID WILLFULLY FAIL TO DEPART FROM THE
UNITED STATES" WITHIN SIX MONTHS FROM THE DEPORTATION ORDER.  THE
EVIDENCE ON COUNT 1 IS THUS INSUFFICIENT TO SUPPORT THE VERDICT, AND
THE JUDGMENT OF CONVICTION THEREON MUST FALL. 

THE GOVERNMENT ARGUES THAT PETITIONER WILLFULLY FAILED TO MAKE TIMELY
APPLICATION TO FINLAND, OR TO SOME OTHER COUNTRY, TO RECEIVE HIM, AND
THAT IF HE HAD DONE SO HE MIGHT HAVE BEEN ABLE TO IDENTIFY, WITHIN THE
TIME PRESCRIBED, A COUNTRY TO WHICH HE COULD GO.  WHILE THIS ARGUMENT
HAS SOME RELATION TO COUNT 1, IT MAINLY INVOLVES, AND THEREFORE BRINGS
US TO A CONSIDERATION OF, THE ADEQUACY OF THE EVIDENCE TO SUPPORT THE
VERDICT ON COUNT 2.  ON APRIL 18, 1952, NINE DAYS AFTER ENTRY OF THE
ORDER OF DEPORTATION, THE OFFICER IN CHARGE OF THE IMMIGRATION AND
NATURALIZATION SERVICE AT DULUTH, MINNESOTA, AT THE REQUEST OF THE
DISTRICT DIRECTOR OF IMMIGRATION AT CHICAGO, SENT INSPECTOR MAKI TO
INTERVIEW PETITIONER AND OBTAIN "PERSONAL DATA, USUALLY CALLED PASSPORT
DATA."  MAKI ADMITTED AT THE TRIAL THAT, IN THAT INTERVIEW, HE "TOLD
PETITIONER THAT HE HAD BEEN INSTRUCTED TO GET THIS PERSONAL HISTORY;
THAT HE WAS GOING TO PREPARE THIS ON THE PASSPORT DATA FORM, AND THAT
IT WOULD BE SENT TO CHICAGO WHERE IT WOULD BE CONSIDERED BY THE SERVICE
DOWN THERE WITH A VIEW TOWARDS THE SERVICE OBTAINING SOME TRAVEL
DOCUMENT OR OTHER IN PETITIONER'S CASE," AND THAT THIS WAS COMMON
PROCEDURE IN SUCH CASES.  PETITIONER FURNISHED THE INFORMATION
REQUESTED, AND IT WAS FORWARDED BY MAKI, ON APRIL 21, 1952, TO THE
DISTRICT DIRECTOR AT CHICAGO.  ON APRIL 30, 1952, PETITIONER RECEIVED A
LETTER FROM THE OFFICER IN CHARGE OF THE IMMIGRATION AND NATURALIZATION
OFFICE IN DULUTH, WHICH, AFTER RECITING THAT AN ORDER DIRECTING
PETITIONER'S DEPORTATION FROM THE UNITED STATES HAD BEEN ENTERED ON
APRIL 25, 1952, (FN4) SAID: 

"ARRANGEMENTS TO EFFECT YOUR DEPORTATION PURSUANT TO SUCH ORDER ARE
BEING MADE AND WHEN COMPLETED YOU WILL BE NOTIFIED WHEN AND WHERE TO
PRESENT YOURSELF FOR DEPORTATION." 

THE LETTER CONTINUED, SUMMARIZING PERTINENT PROVISIONS OF SEC. 20(C)
OF THE IMMIGRATION ACT OF 1917, AS AMENDED, (FN5) AND CONCLUDED:
"THEREFORE, YOU WILL RECOGNIZE THE IMPORTANCE OF MAKING EVERY EFFORT IN
GOOD FAITH TO OBTAIN PASSPORT OR OTHER TRAVEL DOCUMENTS SO THAT YOU MAY
EFFECT YOUR DEPARTURE PURSUANT TO THE SAID ORDER OF DEPORTATION WITHIN
THE TIME PRESCRIBED BY THE QUOTATION ABOVE FROM THE IMMIGRATION ACT OF
1917, AS AMENDED." 

ON FEBRUARY 12, 1953, AN INVESTIGATOR OF THE SERVICE INTERVIEWED AND
TOOK A WRITTEN AND SIGNED STATEMENT FROM PETITIONER, WHICH WAS PUT IN
EVIDENCE BY THE GOVERNMENT AT THE TRIAL.  IN THAT STATEMENT PETITIONER
CORROBORATED MAKI'S STATEMENT TO HIM OF APRIL 9, 1952, ACKNOWLEDGED
RECEIPT OF THE LETTER OF APRIL 30, 1952, AND STATED, IN SUBSTANCE, THAT
HE HAD NOT APPLIED FOR TRAVEL DOCUMENTS BECAUSE, RELYING ON MAKI'S
STATEMENT AND THE LETTER MENTIONED, HE HAD "BEEN WAITING FOR
INSTRUCTIONS FROM THE IMMIGRATION AUTHORITIES" OR "FROM MR. MAKI AS TO
WHEN HE SHOULD START TO MAKE APPLICATION FOR A PASSPORT, IN CASE THE
SERVICE HAD FAILED TO GET A VISA OR A PASSPORT."  PETITIONER'S
STATEMENT FURTHER RECITED THAT HE HAD NEVER RECEIVED ANY REQUEST FROM
THE SERVICE "TO EXECUTE ANY PASSPORT APPLICATION" AND THAT HE HAD NOT
WILLFULLY REFUSED TO DEPART FROM THE UNITED STATES NOR TO APPLY IN GOOD
FAITH FOR TRAVEL DOCUMENTS, BUT WANTED "TO COOPERATE WITH THE ATTORNEY
GENERAL TO GET A PASSPORT TO FINLAND  ...  ." 

IS THIS EVIDENCE SUFFICIENT TO SUPPORT THE JURY'S FINDING THAT
PETITIONER "DID WILLFULLY FAIL TO MAKE TIMELY APPLICATION IN GOOD FAITH
FOR TRAVEL OR OTHER DOCUMENTS NECESSARY TO HIS DEPARTURE FROM THE
UNITED STATES"?  WE BELIEVE THAT IT IS NOT.  THERE CAN BE NO WILLFUL
FAILURE BY A DEPORTEE, IN THE SENSE OF SEC. 20(C), TO APPLY TO, AND
IDENTIFY, A COUNTRY WILLING TO RECEIVE HIM IN THE ABSENCE OF EVIDENCE,
OR AN INFERENCE PERMISSIBLE UNDER THE STATUTE, OF A "BAD PURPOSE" OR
"NON-JUSTIFIABLE EXCUSE," OR THE LIKE.  CF. UNITED STATES V. MURDOCK,
290 U.S. 389, 394; SPIES V. UNITED STATES, 317 U.S. 492, 497, 498. 
INSPECTOR MAKI HAD INFORMED PETITIONER THAT HIS PURPOSE, IN PROCURING
THE "PASSPORT DATA" ON APRIL 9, 1952, WAS TO SEND IT TO THE DISTRICT
DIRECTOR AT CHICAGO, WHERE IT "WOULD BE CONSIDERED  ...  WITH A VIEW
TOWARDS  ...  OBTAINING SOME TRAVEL DOCUMENT OR OTHER IN HIS CASE." 
MOREOVER, THE LETTER OF APRIL 30, 1952, FROM THE OFFICER IN CHARGE OF
THE DULUTH OFFICE, TOLD PETITIONER, IN THE PLAINEST LANGUAGE, THAT THE
SERVICE WAS MAKING THE ARRANGEMENTS TO EFFECT HIS DEPORTATION AND, WHEN
COMPLETED, HE WOULD BE NOTIFIED WHEN AND WHERE TO PRESENT HIMSELF FOR
DEPORTATION.  SURELY PETITIONER WAS JUSTIFIED IN RELYING UPON THE PLAIN
MEANING OF THOSE SIMPLE WORDS, AND IT CANNOT BE SAID THAT HE ACTED
"WILLFULLY" - I.E., WITH A "BAD PURPOSE" OR WITHOUT "JUSTIFIABLE
EXCUSE" - IN DOING SO, UNTIL, AT LEAST, THEY WERE IN SOME WAY
COUNTERMANDED, WHICH WAS NEVER DONE WITHIN THE PRESCRIBED PERIOD.  IT
IS TRUE THAT THE LAST PARAGRAPH OF THAT LETTER DREW ATTENTION TO THE
IMPORTANCE OF MAKING GOOD-FAITH EFFORTS TO OBTAIN THE DOCUMENTS
NECESSARY TO EFFECT DEPARTURE WITHIN THE TIME PRESCRIBED, BUT THAT
LANGUAGE DID NOT IN TERMS NEGATE, AND CANNOT FAIRLY BE SAID IMPLICITLY
TO HAVE NEGATED, THE EARLIER PARAGRAPH OF THE LETTER, BECAUSE, AS
STATED, THAT PARAGRAPH OF THE LETTER PLAINLY TOLD PETITIONER THAT THE
SERVICE WAS ITSELF MAKING THE NECESSARY ARRANGEMENTS FOR HIS
DEPORTATION AND, WHEN COMPLETED, HE WOULD BE NOTIFIED WHEN AND WHERE TO
PRESENT HIMSELF FOR DEPORTATION.  IN THIS FACTUAL SETTING WE BELIEVE
THERE WAS NOT SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S FINDING THAT
PETITIONER ACTED WILLFULLY IN FAILING TO APPLY FOR DOCUMENTS NECESSARY
TO HIS DEPARTURE WITHIN THE TIME PRESCRIBED.  THE EVIDENCE ON COUNT 2
IS THUS INSUFFICIENT TO SUPPORT THE VERDICT, AND THE JUDGMENT OF
CONVICTION ON THAT COUNT MUST ALSO FALL.  REVERSED. 

FN1  THAT ACT PROVIDED, IN PERTINENT PART: 

"(SEC. 1) THAT ANY ALIEN WHO IS A MEMBER OF ANY ONE OF THE FOLLOWING
CLASSES SHALL BE EXCLUDED FROM ADMISSION INTO THE UNITED STATES: 

     *         *         *         *         * 

"(2)  ALIENS WHO, AT ANY TIME, SHALL BE OR SHALL HAVE BEEN MEMBERS OF
ANY OF THE FOLLOWING CLASSES: 

     * *         *         *         * 

"(C)  ALIENS WHO ARE MEMBERS OF OR AFFILIATED WITH (I) THE COMMUNIST
PARTY OF THE UNITED STATES ...  ."  (64 STAT. 1006.) 

"SEC. 4.  (A)  ANY ALIEN WHO WAS AT THE TIME OF ENTERING THE UNITED
STATES, OR HAS BEEN AT ANY TIME THEREAFTER,  ...  A MEMBER OF ANY ONE
OF THE CLASSES OF ALIENS ENUMERATED IN SECTION 1(2) OF THIS ACT, SHALL
UPON THE WARRANT OF THE ATTORNEY GENERAL, BE TAKEN INTO CUSTODY AND
DEPORTED IN THE MANNER PROVIDED IN THE IMMIGRATION ACT OF FEBRUARY 5,
1917.  THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO THE
CLASSES OF ALIENS MENTIONED IN THIS ACT, IRRESPECTIVE OF THE TIME OF
THEIR ENTRY INTO THE UNITED STATES."  (64 STAT. 1008.) 

FN2  HE WAS ASKED AT THE DEPORTATION HEARING TO SPECIFY THE COUNTRY
TO WHICH HE WOULD PREFER TO GO, IF DEPORTED FROM THE UNITED STATES, AND
HE ANSWERED:  "TO MY NATIVE COUNTRY, FINLAND."  DEPORTEES ARE
AUTHORIZED TO DESIGNATE THE COUNTRY OF THEIR FIRST CHOICE BY SEC. 20(A)
OF THE IMMIGRATION ACT OF 1917, AS AMENDED. 

FN3  THERE WAS EVIDENCE THAT AFTER EXPIRATION OF THE PERIOD OF SIX
MONTHS FROM THE ISSUE OF THE DEPORTATION ORDER ON APRIL 9, 1952,
PETITIONER OBTAINED A PASSPORT TO CANADA.  BUT THIS EVIDENCE WAS
IRRELEVANT TO THE ISSUE WHETHER CANADA WAS WILLING TO RECEIVE
PETITIONER DURING THE PERIOD COVERED BY THE INDICTMENT, AND, IN FACT,
COUNSEL FOR THE GOVERNMENT OBJECTED TO THIS EVIDENCE UPON THE GROUND
THAT THE CANADIAN PASSPORT DID NOT SHOW CANADA'S WILLINGNESS TO ACCEPT
PETITIONER "WITHIN THE SIX MONTHS' PERIOD (AFTER APRIL 9, 1952), WHICH
IS THE  ...  PERIOD THAT WE ARE CONCERNED WITH IN THIS INDICTMENT." 

FN4  THIS WAS, IN FACT, NOT THE DATE OF THE DEPORTATION ORDER, WHICH
WAS APRIL 9, 1952, BUT, RATHER, WAS THE DATE OF THE WARRANT OF
DEPORTATION ORDERING PETITIONER DEPORTED TO FINLAND. 

FN5  THAT SUMMARY READ AS FOLLOWS:  "IN THIS CONNECTION YOU ARE
REMINDED THAT SEC. 20(C) OF THE IMMIGRATION ACT OF 1917, AS AMENDED
...  DECLARES THAT ANY SUCH ALIEN 'WHO SHALL WILLFULLY FAIL OR REFUSE
TO DEPART FROM THE UNITED STATES WITHIN A PERIOD OF SIX MONTHS FROM THE
DATE OF SUCH ORDER OF DEPORTATION,  ...  OR SHALL WILLFULLY FAIL OR
REFUSE TO MAKE TIMELY APPLICATION IN GOOD FAITH FOR TRAVEL OR OTHER
DOCUMENTS NECESSARY TO HIS DEPARTURE, OR WHO SHALL CONNIVE OR CONSPIRE,
OR TAKE ANY OTHER ACTION, DESIGNED TO PREVENT OR HAMPER OR WITH THE
PURPOSE OF PREVENTING OR HAMPERING HIS DEPARTURE PURSUANT TO SUCH ORDER
OF DEPORTATION, OR WHO SHALL WILLFULLY FAIL OR REFUSE TO PRESENT
HIMSELF FOR DEPORTATION AT THE TIME AND PLACE REQUIRED BY THE ATTORNEY
GENERAL PURSUANT TO SUCH ORDER OF DEPORTATION, SHALL UPON CONVICTION BE
GUILTY OF A FELONY  ...  .'" 
..END :






















BARTKUS V. ILLINOIS 355 U.S. 281 


NO. 39.  ARGUED NOVEMBER 19, 1957 - DECIDED JANUARY 6, 1958 - 7 ILL. 2D
138, 130 N.E.2D 187, AFFIRMED BY AN EQUALLY DIVIDED COURT. 


BARTKUS V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















LADNER V. UNITED STATES 355 U.S. 282 


NO. 41.  ARGUED NOVEMBER 19, 1957 - DECIDED JANUARY 6, 1958 - 230 F.2D
726, AFFIRMED BY AN EQUALLY DIVIDED COURT. 


LADNER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED BY AN EQUALLY DIVIDED COURT. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














SOUTHERN RAILWAY CO. V. UNITED STATES 355 U.S. 283 


NO. 558.  DECIDED JANUARY 6, 1958 - 153 F. SUPP. 57, AFFIRMED. 


SOUTHERN RAILWAY CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF NORTH CAROLINA. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















N.H. LYONS & CO., INC. V. LUBIN 355 U.S. 284 


NO. 614.  DECIDED JANUARY 6, 1958 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  3 N.Y.2D 60, 143
N.E.2D 392. 


N.H. LYONS & CO., INC., V. LUBIN, INDUSTRIAL COMMISSIONER OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















GROSSMAN V. UNITED STATES 355 U.S. 285 


NO. 578.  DECIDED JANUARY 6, 1958 - APPEAL DISMISSED AND LEAVE TO FILE
PETITION FOR CERTIORARI DENIED.  - REPORTED BELOW:  101 U.S. APP. D.C.
22, 246 F.2D 709. 


GROSSMAN V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED.  THE
MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF CERTIORARI IS DENIED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












TROTTER V. HALL 355 U.S. 285 


NO. 262, MISC.  DECIDED JANUARY 6, 1958 - APPEAL DISMISSED AND
CERTIORARI DENIED.  - REPORTED BELOW: - MISS.  - , 94 SO. 2D 808. 


TROTTER V. HALL ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















BARTKUS V. ILLINOIS 359 U.S. 121 


NO. 1.  ARGUED NOVEMBER 19, 1957 - AFFIRMED BY AN EQUALLY DIVIDED COURT
JANUARY 6, 1958 - REHEARING GRANTED, JUDGMENT VACATED AND CASE RESTORED
TO CALENDAR FOR REARGUMENT MAY 26, 1958 - REARGUED OCTOBER 21-22, 1958
DECIDED MARCH 30, 1959 - 7 ILL. 2D 138, 130 N.E.2D 187, AFFIRMED. 


PETITIONER WAS TRIED AND ACQUITTED IN A FEDERAL DISTRICT COURT FOR
VIOLATION OF 18 U.S.C. SEC. 2113, WHICH MAKES IT A CRIME TO ROB A
FEDERALLY INSURED BANK.  ON SUBSTANTIALLY THE SAME EVIDENCE, HE WAS
LATER TRIED AND CONVICTED IN AN ILLINOIS STATE COURT FOR VIOLATION OF
AN ILLINOIS ROBBERY STATUTE.  HELD: 

1.  THE COOPERATION OF FEDERAL LAW ENFORCEMENT OFFICERS WITH ILLINOIS
OFFICIALS DID NOT VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT.  PP. 122-124. 

2.  THE FOURTEENTH AMENDMENT DOES NOT IMPLIEDLY EXTEND THE FIRST
EIGHT AMENDMENTS TO THE STATES.  PP. 124-126. 

3.  THE ILLINOIS PROSECUTION FOR VIOLATION OF ITS OWN PENAL LAW AFTER
A PRIOR ACQUITTAL FOR A FEDERAL OFFENSE, ON SUBSTANTIALLY THE SAME
EVIDENCE, DID NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 127-139. 

BARTKUS V. ILLINOIS. 

ON REHEARING. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS TRIED IN THE FEDERAL DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS ON DECEMBER 18, 1953, FOR ROBBERY OF A FEDERALLY
INSURED SAVINGS AND LOAN ASSOCIATION, THE GENERAL SAVINGS AND LOAN
ASSOCIATION OF CICERO, ILLINOIS, IN VIOLATION OF 18 U.S.C.  SEC. 2113. 
THE CASE WAS TRIED TO A JURY AND RESULTED IN AN ACQUITTAL.  ON JANUARY
8, 1954, AN ILLINOIS GRAND JURY INDICTED BARTKUS.  THE FACTS RECITED IN
THE ILLINOIS INDICTMENT WERE SUBSTANTIALLY IDENTICAL TO THOSE CONTAINED
IN THE PRIOR FEDERAL INDICTMENT.  THE ILLINOIS INDICTMENT CHARGED THAT
THESE FACTS CONSTITUTED A VIOLATION OF ILLINOIS REVISED STATUTES, 1951,
C. 38, SEC. 501, A ROBBERY STATUTE.  BARTKUS WAS TRIED AND CONVICTED IN
THE CRIMINAL COURT OF COOK COUNTY AND WAS SENTENCED TO LIFE
IMPRISONMENT UNDER THE ILLINOIS HABITUAL CRIMINAL STATUTE.  ILL. REV.
STAT., 1951, C. 38, SEC. 602. 

THE ILLINOIS TRIAL COURT CONSIDERED AND REJECTED PETITIONER'S PLEA OF
AUTREFOIS ACQUIT.  THAT RULING AND OTHER ALLEGED ERRORS WERE CHALLENGED
BEFORE THE ILLINOIS SUPREME COURT WHICH AFFIRMED THE CONVICTION.  7
ILL. 2D 138, 130 N.E.2D 187.  WE GRANTED CERTIORARI BECAUSE THE
PETITION RAISED A SUBSTANTIAL QUESTION CONCERNING THE APPLICATION OF
THE FOURTEENTH AMENDMENT.  352 U.S. 907, 958.  ON JANUARY 6, 1958, THE
JUDGMENT BELOW WAS AFFIRMED BY AN EQUALLY DIVIDED COURT.  355 U.S.
281.  ON MAY 26, 1958, THE COURT GRANTED A PETITION FOR REHEARING,
VACATED THE JUDGMENT ENTERED JANUARY 6, 1958, AND RESTORED THE CASE TO
THE CALENDAR FOR REARGUMENT.  356 U.S. 969. 

THE STATE AND FEDERAL PROSECUTIONS WERE SEPARATELY CONDUCTED.  IT IS
TRUE THAT THE AGENT OF THE FEDERAL BUREAU OF INVESTIGATION WHO HAD
CONDUCTED THE INVESTIGATION ON BEHALF OF THE FEDERAL GOVERNMENT TURNED
OVER TO THE ILLINOIS PROSECUTING OFFICIALS ALL THE EVIDENCE HE HAD
GATHERED AGAINST THE PETITIONER.  CONCEDEDLY, SOME OF THAT EVIDENCE HAD
BEEN GATHERED AFTER ACQUITTAL IN THE FEDERAL COURT.  THE ONLY OTHER
CONNECTION BETWEEN THE TWO TRIALS IS TO BE FOUND IN A SUGGESTION THAT
THE FEDERAL SENTENCING OF THE ACCOMPLICES WHO TESTIFIED AGAINST
PETITIONER IN BOTH TRIALS WAS PURPOSELY CONTINUED BY THE FEDERAL COURT
UNTIL AFTER THEY TESTIFIED IN THE STATE TRIAL.  THE RECORD ESTABLISHES
THAT THE PROSECUTION WAS UNDERTAKEN BY STATE PROSECUTING OFFICIALS
WITHIN THEIR DISCRETIONARY RESPONSIBILITY AND ON THE BASIS OF EVIDENCE
THAT CONDUCT CONTRARY TO THE PENAL CODE OF ILLINOIS HAD OCCURRED WITHIN
THEIR JURISDICTION.  IT ESTABLISHES ALSO THAT FEDERAL OFFICIALS ACTED
IN COOPERATION WITH STATE AUTHORITIES, AS IS THE CONVENTIONAL PRACTICE
BETWEEN THE TWO SETS OF PROSECUTORS THROUGHOUT THE COUNTRY.  (FN1)  IT
DOES NOT SUPPORT THE CLAIM THAT THE STATE OF ILLINOIS IN BRINGING ITS
PROSECUTION WAS MERELY A TOOL OF THE FEDERAL AUTHORITIES, WHO THEREBY
AVOIDED THE PROHIBITION OF THE FIFTH AMENDMENT AGAINST A RETRIAL OF A
FEDERAL PROSECUTION AFTER AN ACQUITTAL.  IT DOES NOT SUSTAIN A
CONCLUSION THAT THE STATE PROSECUTION WAS A SHAM AND A COVER FOR A
FEDERAL PROSECUTION, AND THEREBY IN ESSENTIAL FACT ANOTHER FEDERAL
PROSECUTION. 

SINCE THE NEW PROSECUTION WAS BY ILLINOIS, AND NOT BY THE FEDERAL
GOVERNMENT, THE CLAIM OF UNCONSTITUTIONALITY MUST REST UPON THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PRIOR CASES IN THIS COURT
RELATING TO SUCCESSIVE STATE AND FEDERAL PROSECUTIONS HAVE BEEN
CONCERNED WITH THE FIFTH AMENDMENT, AND THE SCOPE OF ITS PROSCRIPTION
OF SECOND PROSECUTIONS BY THE FEDERAL GOVERNMENT, NOT WITH THE
FOURTEENTH AMENDMENT'S EFFECT ON STATE ACTION.  WE ARE NOW CALLED UPON
TO DRAW ON THE CONSIDERATIONS WHICH HAVE GUIDED THE COURT IN APPLYING
THE LIMITATIONS OF THE FOURTEENTH AMENDMENT ON STATE POWERS.  WE HAVE
HELD FROM THE BEGINNING AND UNIFORMLY THAT THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT DOES NOT APPLY TO THE STATES ANY OF THE
PROVISIONS OF THE FIRST EIGHT AMENDMENTS AS SUCH.  (FN2)  THE RELEVANT
HISTORICAL MATERIALS HAVE BEEN CANVASSED BY THIS COURT AND BY LEGAL
SCHOLARS.  (FN3)  THESE MATERIALS DEMONSTRATE CONCLUSIVELY THAT
CONGRESS AND THE MEMBERS OF THE LEGISLATURES OF THE RATIFYING STATES
DID NOT CONTEMPLATE THAT THE FOURTEENTH AMENDMENT WAS A SHORT-HAND
INCORPORATION OF THE FIRST EIGHT AMENDMENTS MAKING THEM APPLICABLE AS
EXPLICIT RESTRICTIONS UPON THE STATES. 

EVIDENCING THE INTERPRETATION BY BOTH CONGRESS AND THE STATES OF THE
FOURTEENTH AMENDMENT IS A COMPARISON OF THE CONSTITUTIONS OF THE
RATIFYING STATES WITH THE FEDERAL CONSTITUTION.  HAVING REGARD ONLY TO
THE GRAND JURY GUARANTEE OF THE FIFTH AMENDMENT, THE CRIMINAL JURY
GUARANTEE OF THE SIXTH AMENDMENT, AND THE CIVIL JURY GUARANTEE OF THE
SEVENTH AMENDMENT, IT IS APPARENT THAT IF THE FIRST EIGHT AMENDMENTS
WERE BEING APPLIED VERBATIM TO THE STATES, TEN OF THE THIRTY RATIFYING
STATES WOULD HAVE IMPLIEDLY BEEN IMPOSING UPON THEMSELVES
CONSTITUTIONAL REQUIREMENTS ON VITAL ISSUES OF STATE POLICIES CONTRARY
TO THOSE PRESENT IN THEIR OWN CONSTITUTIONS.  (FN4)  OR, TO APPROACH
THE MATTER IN A DIFFERENT WAY, THEY WOULD BE COVERTLY ALTERING
PROVISIONS OF THEIR OWN CONSTITUTIONS IN DISREGARD OF THE AMENDMENT
PROCEDURES REQUIRED BY THOSE CONSTITUTIONS.  FIVE OTHER STATES WOULD
HAVE BEEN UNDERTAKING PROCEDURES NOT IN CONFLICT WITH BUT NOT REQUIRED
BY THEIR CONSTITUTIONS.  THUS ONLY ONE-HALF, OR FIFTEEN, OF THE
RATIFYING STATES HAD CONSTITUTIONS IN EXPLICIT ACCORD WITH THESE
PROVISIONS OF THE FIFTH, SIXTH, AND SEVENTH AMENDMENTS.  OF THESE
FIFTEEN, FOUR MADE ALTERATIONS IN THEIR CONSTITUTIONS BY 1875 WHICH
BROUGHT THEM INTO IMPORTANT CONFLICT WITH ONE OR MORE OF THESE
PROVISIONS OF THE FEDERAL CONSTITUTION.  ONE OF THE STATES WHOSE
CONSTITUTION HAD NOT INCLUDED ANY PROVISION ON ONE OF THE THREE
PROCEDURES UNDER INVESTIGATION ADOPTED A PROVISION IN 1890 WHICH WAS
INCONSISTENT WITH THE FEDERAL CONSTITUTION.  AND SO BY 1890 ONLY ELEVEN
OF THE THIRTY RATIFYING STATES WERE IN EXPLICIT ACCORD WITH THESE
PROVISIONS OF THE FIRST EIGHT AMENDMENTS TO THE FEDERAL CONSTITUTION. 
FOUR WERE SILENT AS TO ONE OR MORE OF THE PROVISIONS AND FIFTEEN WERE
IN OPEN CONFLICT WITH THESE SAME PROVISIONS.  (FN5) 

SIMILARLY IMPOSING EVIDENCE OF THE UNDERSTANDING OF THE DUE PROCESS
CLAUSE IS SUPPLIED BY THE HISTORY OF THE ADMISSION OF THE TWELVE STATES
ENTERING THE UNION AFTER THE RATIFICATION OF THE FOURTEENTH AMENDMENT. 
IN THE CASE OF EACH, CONGRESS REQUIRED THAT THE STATE'S CONSTITUTION BE
"NOT REPUGNANT" TO THE CONSTITUTION OF THE UNITED STATES.  (FN6)  NOT
ONE OF THE CONSTITUTIONS OF THE TWELVE STATES CONTAINS ALL THREE OF THE
PROCEDURES RELATING TO GRAND JURY, CRIMINAL JURY, AND CIVIL JURY.  IN
FACT ALL TWELVE HAVE PROVISIONS OBVIOUSLY DIFFERENT FROM THE
REQUIREMENTS OF THE FIFTH, SIXTH, OR SEVENTH AMENDMENTS.  AND YET, IN
THE CASE OF EACH ADMISSION, EITHER THE PRESIDENT OF THE UNITED STATES,
OR CONGRESS, OR BOTH HAVE FOUND THAT THE CONSTITUTION WAS IN CONFORMITY
WITH THE ENABLING ACT AND THE CONSTITUTION OF THE UNITED STATES.  (FN7)
NOR IS THERE WARRANT TO BELIEVE THAT THE STATES IN ADOPTING
CONSTITUTIONS WITH THE SPECIFIC PURPOSE OF COMPLYING WITH THE
REQUISITES OF ADMISSION WERE IN FACT EVADING THE DEMANDS OF THE
CONSTITUTION OF THE UNITED STATES. 

SURELY THIS COMPELS THE CONCLUSION THAT CONGRESS AND THE STATES HAVE
ALWAYS BELIEVED THAT THE DUE PROCESS CLAUSE BROUGHT INTO PLAY A BASIS
OF RESTRICTIONS UPON THE STATES OTHER THAN THE UNDISCLOSED
INCORPORATION OF THE ORIGINAL EIGHT AMENDMENTS.  IN HURTADO V.
CALIFORNIA, 110 U.S. 516, THIS COURT CONSIDERED DUE PROCESS IN ITS
HISTORICAL SETTING, REVIEWED ITS DEVELOPMENT AS A CONCEPT IN ANGLO
AMERICAN LAW FROM THE TIME OF THE MAGNA CARTA UNTIL THE TIME OF THE
ADOPTION OF THE FOURTEENTH AMENDMENT AND CONCLUDED THAT IT WAS INTENDED
TO BE A FLEXIBLE CONCEPT, RESPONSIVE TO THOUGHT AND EXPERIENCE -
EXPERIENCE WHICH IS REFLECTED IN A SOLID BODY OF JUDICIAL OPINION, ALL
MANIFESTING DEEP CONVICTIONS TO BE UNFOLDED BY A PROCESS OF "INCLUSION
AND EXCLUSION."  DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 104.  TIME AND
AGAIN THIS COURT HAS ATTEMPTED BY GENERAL PHRASES NOT TO DEFINE BUT TO
INDICATE THE PURPORT OF DUE PROCESS AND TO ADUMBRATE THE CONTINUING
ADJUDICATORY PROCESS IN ITS APPLICATION.  THE STATEMENT BY MR. JUSTICE
CARDOZO IN PALKO V. CONNECTICUT, 302 U.S. 319, HAS ESPECIALLY COMMENDED
ITSELF AND BEEN FREQUENTLY CITED IN LATER OPINIONS.  (FN8)  REFERRING
TO SPECIFIC SITUATIONS, HE WROTE: 

"IN THESE AND OTHER SITUATIONS IMMUNITIES THAT ARE VALID AS AGAINST
THE FEDERAL GOVERNMENT BY FORCE OF THE SPECIFIC PLEDGES OF PARTICULAR
AMENDMENTS HAVE BEEN FOUND TO BE IMPLICIT IN THE CONCEPT OF ORDERED
LIBERTY, AND THUS, THROUGH THE FOURTEENTH AMENDMENT, BECOME VALID AS
AGAINST THE STATES."  302 U.S., AT 324-325. 

ABOUT THE MEANING OF DUE PROCESS, IN BROAD PERSPECTIVE UNRELATED TO
THE FIRST EIGHT AMENDMENTS, HE SUGGESTED THAT IT PROHIBITED TO THE
STATES ONLY THOSE PRACTICES "REPUGNANT TO THE CONSCIENCE OF MANKIND." 
302 U.S., AT 323.  IN APPLYING THESE PHRASES IN PALKO, THE COURT RULES
THAT, WHILE AT SOME POINT THE CRUELTY OF HARASSMENT BY MULTIPLE
PROSECUTIONS BY A STATE WOULD OFFEND DUE PROCESS, THE SPECIFIC
LIMITATION IMPOSED ON THE FEDERAL GOVERNMENT BY THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT DID NOT BIND THE STATES. 

DECISIONS OF THIS COURT CONCERNING THE APPLICATION OF THE DUE PROCESS
CLAUSE REVEAL THE NECESSARY PROCESS OF BALANCING RELEVANT AND
CONFLICTING FACTORS IN THE JUDICIAL APPLICATION OF THAT CLAUSE.  IN
CHAMBERS V. FLORIDA, 309 U.S. 227, WE HELD THAT A STATE CONVICTION OF
MURDER WAS VOID BECAUSE IT WAS BASED UPON A CONFESSION ELICITED BY
APPLYING THIRD-DEGREE METHODS TO THE DEFENDENT.  BUT WE HAVE ALSO HELD
THAT A SECOND EXECUTION NECESSITATED BY A MECHANICAL FAILURE IN THE
FIRST ATTEMPT WAS NOT IN VIOLATION OF DUE PROCESS.  LOUISIANA EX REL.
FRANCIS V. RESWEBER, 329 U.S. 459.  DECISIONS UNDER THE DUE PROCESS
CLAUSE REQUIRE CLOSE AND PERCEPTIVE INQUIRY INTO FUNDAMENTAL PRINCIPLES
OF OUR SOCIETY.  THE ANGLO-AMERICAN SYSTEM OF LAW IS BASED NOT UPON
TRANSCENDENTAL REVELATION BUT UPON THE CONSCIENCE OF SOCIETY
ASCERTAINED AS BEST IT MAY BE BY A TRIBUNAL DISCIPLINED FOR THE TASK
AND ENVIRONED BY THE BEST SAFEGUARDS FOR DISINTERESTEDNESS AND
DETACHMENT. 

CONSTITUTIONAL CHALLENGE TO SUCCESSIVE STATE AND FEDERAL PROSECUTIONS
BASED UPON THE SAME TRANSACTION OR CONDUCT IS NOT A NEW QUESTION BEFORE
THE COURT THOUGH IT HAS NOW BEEN PRESENTED WITH CONSPICUOUS ABILITY. 
(FN9)  THE FIFTH AMENDMENT'S PROSCRIPITON OF DOUBLE JEOPARDY HAS BEEN
INVOKED AND REJECTED IN OVER TWENTY CASES OF REAL OR HYPOTHETICAL
SUCCESSIVE STATE AND FEDERAL PROSECUTION CASES BEFORE THIS COURT. 
WHILE UNITED STATES V. LANZA, 260 U.S. 377, WAS THE FIRST CASE IN WHICH
WE SQUARELY HELD VALID A FEDERAL PROSECUTION ARISING OUT OF THE SAME
FACTS WHICH HAD BEEN THE BASIS OF STATE CONVICTION, THE VALIDITY OF
SUCH A PROSECUTION BY THE FEDERAL GOVERNMENT HAS NOT BEEN QUESTIONED BY
THIS COURT SINCE THE OPINION IN FOX V. OHIO, 5 HOW.  410, MORE THAN ONE
HUNDRED YEARS AGO. 

IN FOX V. OHIO ARGUMENT WAS MADE TO THE SUPREME COURT THAT AN OHIO
CONVICTION FOR UTTERING COUNTERFEIT MONEY WAS INVALID.  THIS ASSERTION
OF INVALIDITY WAS BASED IN LARGE PART UPON THE ARGUMENT THAT SINCE
CONGRESS HAD IMPOSED FEDERAL SANCTIONS FOR THE COUNTERFEITING OF MONEY,
A FAILURE TO FIND THAT THE SUPREMACY CLAUSE PRECLUDED THE STATES FROM
PUNISHING RELATED CONDUCT WOULD EXPOSE AN INDIVIDUAL TO DOUBLE
PUNISHMENT.  MR. JUSTICE DANIEL, WRITING FOR THE COURT (WITH MR.
JUSTICE MCLEAN DISSENTING), RECOGNIZED AS TRUE THAT THERE WAS A
POSSIBILITY OF DOUBLE PUNISHMENT, BUT DENIED THAT FROM THIS FLOWED A
FINDING OF PRE-EMPTION, CONCLUDING INSTEAD THAT BOTH THE FEDERAL AND
STATE GOVERNMENTS RETAINED THE POWER TO IMPOSE CRIMINAL SANCTIONS, THE
UNITED STATES BECAUSE OF ITS INTEREST IN PROTECTING THE PURITY OF ITS
CURRENCY, THE STATES BECAUSE OF THEIR INTEREST IN PROTECTING THEIR
CITIZENS AGAINST FRAUD. 

IN SOME EIGHT STATE CASES DECIDED PRIOR TO FOX THE COURTS OF SEVEN
STATES HAD DISCUSSED THE VALIDITY OF SUCCESSIVE STATE AND FEDERAL
PROSECUTIONS.  IN THREE, MISSOURI, (FN10) NORTH CAROLINA, (FN11) AND
VIRGINIA, (FN12) IT HAD BEEN SAID THAT THERE WOULD BE NO PLEA IN BAR TO
PREVENT THE SECOND PROSECUTION.  DISCUSSIONS IN TWO CASES IN SOUTH
CAROLINA WERE IN CONFLICT - THE EARLIER OPINION (FN13) EXPRESSING
BELIEF THAT THERE WOULD BE A BAR, THE LATER, (FN14) WITHOUT
ACKNOWLEDGING DISAGREEMENT WITH THE FIRST, DENYING THE AVAILABILITY OF
A PLEA IN BAR.  IN THREE OTHER STATES, VERMONT, (FN15) MASSACHUSETTS,
(FN16) AND MICHIGAN, (FN17) COURTS HAD STATED THAT A PROSECUTION BY ONE
GOVERNMENT WOULD BAR PROSECUTION BY ANOTHER GOVERNMENT OF A CRIME BASED
ON THE SAME CONDUCT.  THE PERSUASIVENESS OF THE MASSACHUSETTS AND
MICHIGAN DECISIONS IS SOMEWHAT IMPAIRED BY THE PRECEDENT UPON WHICH
THEY RELIED IN THEIR REASONING.  IN THE SUPREME COURT CASE CITED IN THE
MASSACHUSETTS AND MICHIGAN CASES, HOUSTON V. MOORE, 5 WHEAT.  1, THERE
IS SOME LANGUAGE TO THE EFFECT THAT THERE WOULD BE A BAR TO A SECOND
PROSECUTION BY A DIFFERENT GOVERNMENT.  5 WHEAT., AT 31.  BUT THAT
LANGUAGE BY MR. JUSTICE WASHINGTON REFLECTED HIS BELIEF THAT THE STATE
STATUTE IMPOSED STATE SANCTIONS FOR VIOLATION OF A FEDERAL CRIMINAL
LAW.  5 WHEAT., AT 28.  AS HE VIEWED THE MATTER, THE TWO TRIALS WOULD
NOT BE OF SIMILAR CRIMES ARISING OUT OF THE SAME CONDUCT; THEY WOULD BE
OF THE SAME CRIME.  MR. JUSTICE JOHNSON AGREED THAT IF THE STATE COURTS
HAD BECOME EMPOWERED TO TRY THE DEFENDANT FOR THE FEDERAL OFFENSE, THEN
SUCH A STATE TRIAL WOULD BAR A FEDERAL PROSECUTION.  5 WHEAT., AT 35. 
THUS HOUSTON V. MOORE CAN BE CITED ONLY FOR THE PRESENCE OF A BAR IN A
CASE IN WHICH THE SECOND TRIAL IS FOR A VIOLATION OF THE VERY STATUTE
WHOSE VIOLATION BY THE SAME CONDUCT HAS ALREADY BEEN TRIED IN THE
COURTS OF ANOTHER GOVERNMENT EMPOWERED TO TRY THAT QUESTION.  (FN18) 
THE SIGNIFICANCE OF THIS HISTORICAL BACKGROUND OF DECISIONS PRIOR TO
FOX IS THAT IT WAS, TAKING A POSITION MOST FAVORABLE TO ADVOCATES OF
THE BARS OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT IN CASES LIKE THAT
BEFORE THIS COURT, TOTALLY INCONCLUSIVE.  CONFLICTING OPINIONS
CONCERNING THE APPLICABILITY OF THE PLEA IN BAR MAY MANIFEST CONFLICT
IN CONSCIENCE.  THEY CERTAINLY DO NOT MANIFEST AGREEMENT THAT TO PERMIT
SUCCESSIVE STATE AND FEDERAL PROSECUTIONS FOR DIFFERENT CRIMES ARISING
FROM THE SAME ACTS WOULD BE REPUGNANT TO THOSE STANDARDS OF OUTLAWRY
WHICH OFFEND THE CONCEPTION OF DUE PROCESS OUTLINED IN PALKO.  (IT IS
WORTH NOTING THAT PALKO SUSTAINED A FIRST DEGREE MURDER CONVICTION
RETURNED IN A SECOND TRIAL AFTER AN APPEAL BY THE STATE FROM AN
ACQUITTAL OF FIRST DEGREE MURDER.)  THE EARLY STATE DECISIONS HAD
CLARIFIED THE ISSUE BY STATING THE OPPOSING ARGUMENTS.  THE PROCESS OF
THIS COURT'S RESPONSE TO THE FIFTH AMENDMENT CHALLENGE WAS BEGUN IN FOX
V. OHIO, CONTINUED IN UNITED STATES V. MARIGOLD, 9 HOW.  560, AND WAS
COMPLETED IN MOORE V. ILLINOIS, 14 HOW.  13.  MR. JUSTICE GRIER,
WRITING FOR THE COURT IN MOORE V. ILLINOIS, GAVE DEFINITIVE STATEMENT
TO THE RULE WHICH HAD BEEN EVOLVING: 

"AN OFFENCE, IN ITS LEGAL SIGNIFICATION, MEANS THE TRANSGRESSION OF A
LAW."  14 HOW., AT 19. 

"EVERY CITIZEN OF THE UNITED STATES IS ALSO A CITIZEN OF A STATE OR
TERRITORY.  HE MAY BE SAID TO OWE ALLEGIANCE TO TWO SOVEREIGNS, AND MAY
BE LIABLE TO PUNISHMENT FOR AN INFRACTION OF THE LAWS OF EITHER.  THE
SAME ACT MAY BE AN OFFENCE OR TRANSGRESSION OF THE LAWS OF BOTH."  14
HOW., AT 20. 

"THAT EITHER OR BOTH MAY (IF THEY SEE FIT) PUNISH SUCH AN OFFENDER,
CANNOT BE DOUBTED.  YET IT CANNOT BE TRULY AVERRED THAT THE OFFENDER
HAS BEEN TWICE PUNISHED FOR THE SAME OFFENCE; BUT ONLY THAT BY ONE ACT
HE HAS COMMITTED TWO OFFENCES, FOR EACH OF WHICH HE IS JUSTLY
PUNISHABLE.  HE COULD NOT PLEAD THE PUNISHMENT BY ONE IN BAR TO A
CONVICTION BY THE OTHER."  IBID. 

IN A DOZEN CASES DECIDED BY THIS COURT BETWEEN MOORE V. ILLINOIS AND
UNITED STATES V. LANZA THIS COURT HAD OCCASION TO REAFFIRM THE
PRINCIPLE FIRST ENUNCIATED IN FOX V. OHIO.  (FN19)  SINCE LANZA THE
COURT HAS FIVE TIMES REPEATED THE RULE THAT SUCCESSIVE STATE AND
FEDERAL PROSECUTIONS ARE NOT IN VIOLATION OF THE FIFTH AMENDMENT. 
(FN20)  INDEED MR. JUSTICE HOLMES ONCE WROTE OF THIS RULE THAT IT "IS
TOO PLAIN TO NEED MORE THAN STATEMENT."  (FN21)  ONE OF THE POST-LANZA
CASES, JEROME V. UNITED STATES, 318 U.S. 101, INVOLVED THE SAME FEDERAL
STATUTE UNDER WHICH BARTKUS WAS INDICTED AND IN JEROME THIS COURT
RECOGNIZED THAT SUCCESSIVE STATE AND FEDERAL PROSECUTIONS WERE THEREBY
MADE POSSIBLE BECAUSE ALL STATES HAD GENERAL ROBBERY STATUTES. 
NONETHELESS, A UNANIMOUS COURT, AS RECENTLY AS 1943, ACCEPTED AS
UNQUESTIONED CONSTITUTIONAL LAW THAT SUCH SUCCESSIVE PROSECUTIONS WOULD
NOT VIOLATE THE PROSCRIPTION OF DOUBLE JEOPARDY INCLUDED IN THE FIFTH
AMENDMENT.  318 U.S., AT 105.  (FN22) 

THE LOWER FEDERAL COURTS HAVE OF COURSE BEEN IN ACCORD WITH THIS
COURT.  (FN23)  ALTHOUGH SOME CAN BE CITED ONLY IN THAT THEY FOLLOW THE
DECISIONS OF THIS COURT, OTHERS MANIFEST REFLECTION UPON THE ISSUES
INVOLVED AND EXPRESS REASONED APPROVAL OF THE TWO-SOVEREIGNTY
PRINCIPLE.  IN UNITED STATES V. BARNHART, 22 F. 285, THE OREGON CIRCUIT
COURT WAS PRESENTED WITH A CASE JUST THE OBVERSE OF THE PRESENT ONE:
THE PRIOR TRIAL AND ACQUITTAL WAS BY A STATE COURT; THE SUBSEQUENT
TRIAL WAS BY A FEDERAL COURT.  THE CIRCUIT COURT REJECTED DEFENDANT'S
PLEA OF AUTREFOIS ACQUIT, SAYING THAT THE HARDSHIP OF THE SECOND TRIAL
MIGHT OPERATE TO PERSUADE AGAINST THE BRINGING OF A SUBSEQUENT
PROSECUTION BUT COULD NOT BAR IT. 

THE EXPERIENCE OF STATE COURTS IN DEALING WITH SUCCESSIVE
PROSECUTIONS BY DIFFERENT GOVERNMENTS IS OBVIOUSLY ALSO RELEVANT IN
CONSIDERING WHETHER OR NOT THE ILLINOIS PROSECUTION OF BARTKUS VIOLATED
DUE PROCESS OF LAW.  OF THE TWENTY-EIGHT STATES WHICH HAVE CONSIDERED
THE VALIDITY OF SUCCESSIVE STATE AND FEDERAL PROSECUTIONS AS AGAINST A
CHALLENGE OF VIOLATION OF EITHER A STATE CONSTITUTIONAL DOUBLE-JEOPARDY
PROVISION OR A COMMON-LAW EVIDENTIARY RULE OF AUTREFOIS ACQUIT AND
AUTREFOIS CONVICT, TWENTY-SEVEN HAVE REFUSED TO RULE THAT THE SECOND
PROSECUTION WAS OR WOULD BE BARRED.  (FN24)  THESE STATES WERE NOT
BOUND TO FOLLOW THIS COURT AND ITS INTERPRETATION OF THE FIFTH
AMENDMENT.  THE RULES, CONSTITUTIONAL, STATUTORY, OR COMMON LAW WHICH
BOUND THEM, DREW UPON THE SAME EXPERIENCE AS DID THE FIFTH AMENDMENT,
BUT WERE AND ARE OF SEPARATE AND INDEPENDENT AUTHORITY. 

NOT ALL OF THE STATE CASES MANIFEST CAREFUL REASONING, FOR IN SOME OF
THEM THE LANGUAGE CONCERNING DOUBLE JEOPARDY IS BUT OFFHAND DICTUM. 
BUT IN AN ARRAY OF STATE CASES THERE MAY BE FOUND FULL CONSIDERATION OF
THE ARGUMENTS SUPPORTING AND DENYING A BAR TO A SECOND PROSECUTION. 
THESE COURTS INTERPRETED THEIR RULES AS NOT PROSCRIBING A SECOND
PROSECUTION WHERE THE FIRST WAS BY A DIFFERENT GOVERNMENT AND FOR
VIOLATION OF A DIFFERENT STATUTE. 

WITH THIS BODY OF PRECEDENT AS IRREFUTABLE EVIDENCE THAT STATE AND
FEDERAL COURTS HAVE FOR YEARS REFUSED TO BAR A SECOND TRIAL EVEN THOUGH
THERE HAD BEEN A PRIOR TRIAL BY ANOTHER GOVERNMENT FOR A SIMILAR
OFFENSE, IT WOULD BE DISREGARD OF A LONG, UNBROKEN, UNQUESTIONED COURSE
OF IMPRESSIVE ADJUDICATION FOR THE COURT NOW TO RULE THAT DUE PROCESS
COMPELS SUCH A BAR.  A PRACTICAL JUSTIFICATION FOR REJECTING SUCH A
READING OF DUE PROCESS ALSO COMMENDS ITSELF IN AID OF THIS
INTERPRETATION OF THE FOURTEENTH AMENDMENT.  IN SCREWS V. UNITED
STATES, 325 U.S. 91, DEFENDANTS WERE TRIED AND CONVICTED IN A FEDERAL
COURT UNDER FEDERAL STATUTES WITH MAXIMUM SENTENCES OF A YEAR AND TWO
YEARS RESPECTIVELY.  BUT THE STATE CRIME THERE INVOLVED WAS A CAPITAL
OFFENSE.  WERE THE FEDERAL PROSECUTION OF A COMPARATIVELY MINOR OFFENSE
TO PREVENT STATE PROSECUTION OF SO GRAVE AN INFRACTION OF STATE LAW,
THE RESULT WOULD BE A SHOCKING AND UNTOWARD DEPRIVATION OF THE HISTORIC
RIGHT AND OBLIGATION OF THE STATES TO MAINTAIN PEACE AND ORDER WITHIN
THEIR CONFINES.  IT WOULD BE IN DEROGATION OF OUR FEDERAL SYSTEM TO
DISPLACE THE RESERVED POWER OF STATES OVER STATE OFFENSES BY REASON OF
PROSECUTION OF MINOR FEDERAL OFFENSES BY FEDERAL AUTHORITIES BEYOND THE
CONTROL OF THE STATES.  (FN25) 

SOME RECENT SUGGESTIONS THAT THE CONSTITUTION WAS IN REALITY A DEFT
DEVICE FOR ESTABLISHING A CENTRALIZED GOVERNMENT ARE NOT ONLY WITHOUT
FACTUAL JUSTIFICATION BUT FLY IN THE FACE OF HISTORY.  IT HAS MORE
ACCURATELY BEEN SHOWN THAT THE MEN WHO WROTE THE CONSTITUTION AS WELL
AS THE CITIZENS OF THE MEMBER STATES OF THE CONFEDERATION WERE FEARFUL
OF THE POWER OF CENTRALIZED GOVERNMENT AND SOUGHT TO LIMIT ITS POWER. 
MR. JUSTICE BRANDEIS HAS WRITTEN THAT SEPARATION OF POWERS WAS ADOPTED
IN THE CONSTITUTION "NOT TO PROMOTE EFFICIENCY BUT TO PRECLUDE THE
EXERCISE OF ARBITRARY POWER."  (FN26)  TIME HAS NOT LESSENED THE
CONCERN OF THE FOUNDERS IN DEVISING A FEDERAL SYSTEM WHICH WOULD
LIKEWISE BE A SAFEGUARD AGAINST ARBITRARY GOVERNMENT.  THE GREATEST
SELF-RESTRAINT IS NECESSARY WHEN THAT FEDERAL SYSTEM YIELDS RESULTS
WITH WHICH A COURT IS IN LITTLE SYMPATHY. 

THE ENTIRE HISTORY OF LITIGATION AND CONTENTION OVER THE QUESTION OF
THE IMPOSITION OF A BAR TO A SECOND PROSECUTION BY A GOVERNMENT OTHER
THAN THE ONE FIRST PROSECUTING IS A MANIFESTATION OF THE EVOLUTIONARY
UNFOLDING OF LAW.  TODAY A NUMBER OF STATES HAVE STATUTES WHICH BAR A
SECOND PROSECUTION IF THE DEFENDANT HAS BEEN ONCE TRIED BY ANOTHER
GOVERNMENT FOR A SIMILAR OFFENSE.  (FN27)  A STUDY OF THE CASES UNDER
THE NEW YORK STATUTE, (FN28) WHICH IS TYPICAL OF THESE LAWS,
DEMONSTRATES THAT THE TASK OF DETERMINING WHEN THE FEDERAL AND STATE
STATUTES ARE SO MUCH ALIKE THAT A PROSECUTION UNDER THE FORMER BARS A
PROSECUTION UNDER THE LATTER IS A DIFFICULT ONE.  (FN29)  THE PROPER
SOLUTION OF THAT PROBLEM FREQUENTLY DEPENDS UPON A JUDGMENT OF THE
GRAVAMEN OF THE STATE STATUTE.  IT DEPENDS ALSO UPON AN UNDERSTANDING
OF THE SCOPE OF THE BAR THAT HAS BEEN HISTORICALLY GRANTED IN THE STATE
TO PREVENT SUCCESSIVE STATE PROSECUTIONS.  BOTH THESE PROBLEMS ARE ONES
WITH WHICH THE STATES ARE OBVIOUSLY MORE COMPETENT TO DEAL THAN IS THIS
COURT.  FURTHERMORE, THE RULES RESULTING WILL INTIMATELY AFFECT THE
EFFORTS OF A STATE TO DEVELOP A RATIONAL AND JUST BODY OF CRIMINAL LAW
IN THE PROTECTION OF ITS CITIZENS.  WE OUGHT NOT TO UTILIZE THE
FOURTEENTH AMENDMENT TO INTERFERE WITH THIS DEVELOPMENT.  FINALLY,
EXPERIENCE SUCH AS THAT OF NEW YORK MAY GIVE AID TO CONGRESS IN ITS
CONSIDERATION OF ADOPTION OF SIMILAR PROVISIONS IN INDIVIDUAL FEDERAL
CRIMINAL STATUTES OR IN THE FEDERAL CRIMINAL CODE.  (FN30) 

PRECEDENT, EXPERIENCE, AND REASON ALIKE SUPPORT THE CONCLUSION THAT
ALFONSE BARTKUS HAS NOT BEEN DEPRIVED OF DUE PROCESS OF LAW BY THE
STATE OF ILLINOIS.  AFFIRMED. 

FN1  SEE PROCEEDINGS OF THE ATTORNEY GENERAL'S CONFERENCE ON CRIME
(1934).  AT THE CONCLUSION OF THE STATE TRIAL OF BARTKUS, STATE'S
ATTORNEY GUTKNECHT THUS REVIEWED THE COOPERATION BETWEEN FEDERAL AND
STATE OFFICIALS: 

"WE HAVE HAD A NUMBER OF CASES WHERE THE STATE'S ATTORNEY'S OFFICE
HAVE BEEN COOPERATING VERY WELL WITH THE FEDERAL AUTHORITIES,
PARTICULARLY IN THE NARCOTICS CASES, BECAUSE IN THAT CONNECTION THE
FEDERAL GOVERNMENT SHOULD HAVE THE FIRST AUTHORITY IN HANDLING THEM
BECAUSE NARCOTICS IS A NATION-WIDE CRIMINAL ORGANIZATION, AND SO WHEN I
SEE PEOPLE GOING THROUGH THIS TOWN AND CRITICISING THE COUNTY OF COOK
AND THE CITY OF CHICAGO, BECAUSE OF THE POLICE, THE STATE'S ATTORNEY
AND THE JUDGES COOPERATING WITH THE FEDERAL AUTHORITIES, AND GIVING
THAT AS PROOF OF THE FACT THAT SINCE WE DON'T TAKE THE LEAD WE MUST BE
NEGLIGENT IN OUR DUTIES, I AM PARTICULARLY GLAD TO SEE A CASE WHERE THE
FEDERAL AUTHORITIES CAME TO THE STATE'S ATTORNEY. 

"WE ARE COOPERATING WITH THE FEDERAL AUTHORITIES AND THEY ARE
COOPERATING WITH US, AND THESE STATEMENTS IN THIS CITY TO THE EFFECT
THAT THE FACT THAT THE FEDERAL AUTHORITIES ARE IN THE COUNTY IS A SIGN
OF BREAKDOWN IN LAW ENFORCEMENT IN COOK COUNTY IS UTTER NONSENSE. 

"THE FEDERAL AUTHORITIES HAVE DUTIES AND WE HAVE DUTIES.  WE ARE
DOING OUR DUTY AND THIS IS AN ILLUSTRATION OF IT, AND WE ARE GLAD TO
CONTINUE TO COOPERATE WITH THE FEDERAL AUTHORITIES.  GIVE THEM THE
FIRST PLAY WHERE IT IS THEIR DUTY, AS IN NARCOTICS, AND WE TAKE OVER
WHERE OUR DUTY CALLS FOR US TO CARRY THE BURDEN  ...  ." 

FN2  HURTADO V. CALIFORNIA, 110 U.S. 516; IN RE KEMMLER, 136 U.S.
436; MAXWELL V. DOW, 176 U.S. 581; TWINING V. NEW JERSEY, 211 U.S. 78;
PALKO V. CONNECTICUT, 302 U.S. 319; ADAMSON V. CALIFORNIA, 332 U.S.
46. 

FN3  FAIRMAN, DOES THE FOURTEENTH AMENDMENT INCORPORATE THE BILL OF
RIGHTS?  THE ORIGINAL UNDERSTANDING, 2 STAN.  L. REV. 5. 

FN4  SEE APPENDIX, POST, P. 140, IN WHICH ARE DETAILED THE PROVISIONS
IN THE CONSTITUTIONS OF THE RATIFYING STATES AND OF THE STATES LATER
ADMITTED TO THE UNION WHICH CORRESPOND TO THESE FEDERAL GUARANTEES IN
THE FIFTH, SIXTH, AND SEVENTH AMENDMENTS.  (APPENDIX OMITTED.) 

FN5  CF. FOX V. OHIO, 5 HOW.  410, 435, IN WHICH, IN RULING THAT THE
FIFTH AMENDMENT WAS NOT TO BE READ AS APPLYING TO THE STATES, MR.
JUSTICE DANIEL WROTE:  "IT IS NEITHER PROBABLE NOR CREDIBLE THAT THE
STATES SHOULD HAVE ANXIOUSLY INSISTED TO INGRAFT UPON THE FEDERAL
CONSTITUTION RESTRICTIONS UPON THEIR OWN AUTHORITY  ...  ." 

FN6  SEE, E.G., 36 STAT. 569. 

FN7  SEE, E.G., 37 STAT. 1728. 

FN8  SEE, E.G., LELAND V. OREGON, 343 U.S. 790, 801; ROCHIN V.
CALIFORNIA, 342 U.S. 165, 169; BUTE V. ILLINOIS, 333 U.S. 640, 659. 

FN9  IT HAS NOT BEEN DEEMED RELEVANT TO DISCUSSION OF OUR PROBLEM TO
CONSIDER DUBIOUS ENGLISH PRECEDENTS CONCERNING THE EFFECT OF FOREIGN
CRIMINAL JUDGMENTS ON THE ABILITY OF ENGLISH COURTS TO TRY CHARGES
ARISING OUT OF THE SAME CONDUCT - DUBIOUS IN PART BECAUSE OF THE
CONFUSED AND INADEQUATE REPORTING OF THE CASE ON WHICH MUCH IS BASED,
SEE THE VARYING VERSIONS OF REX V. HUTCHINSON FOUND IN BEAK V.
THYRWHIT, 3 MOD. 194, 87 ENG. REP. 124 (REPORTED AS BEAKE V. TYRRELL IN
1 SHOW.  6, 89 ENG. REP. 411, AND AS BEAKE V. TIRRELL IN COMBERBACH
120, 90 ENG. REP. 379), BURROWS V. JEMINO, 2 STRANGE 733, 93 ENG. REP.
815 (REPORTED AS BURROUGHS V. JAMINEAU IN MOS.  1, 25 ENG. REP. 235, AS
BURROWS V. JEMINEAU IN SEL.  CAS.  70, 25 ENG. REP. 228, AS BURROWS V.
JEMINEAU IN 2 EQ. CA. ABR.  476, AND AS BURROWS V. JEMINO IN 22 ENG.
REP. 443), AND EXPLAINED IN GAGE V. BULKELEY, RIDG.  CAS.  263, 27 ENG.
REP. 824.  SUCH PRECEDENTS ARE DUBIOUS ALSO BECAUSE THEY REFLECT A
POWER OF DISCRETION VESTED IN ENGLISH JUDGES NOT RELEVANT TO THE
CONSTITUTIONAL LAW OF OUR FEDERALISM. 

FN10  MATTISON V. STATE, 3 MO. *421. 

FN11  STATE V. BROWN, 2 N.C. *100. 

FN12  HENDRICK V. COMMONWEALTH, 5 LEIGH (VA.)  707. 

FN13  STATE V. ANTONIO, 2 TREADWAY'S CONST. REP. (S.C.)  776. 

FN14  STATE V. TUTT, 2 BAILEY (S.C.)  44. 

FN15  STATE V. RANDALL, 2 AIKENS (VT.)  89. 

FN16  COMMONWEALTH V. FULLER, 8 METCALF (MASS.) 313. 

FN17  HARLAN V. PEOPLE, 1 DOUGLASS' REP. (MICH.) 207. 

FN18  MR. JUSTICE STORY'S DISSENTING OPINION IN HOUSTON V. MOORE, 5
WHEAT.  1, 47, DISPLAYS DISLIKE OF THE POSSIBILITY OF MULTIPLE
PROSECUTIONS, ID., AT 72, BUT ALSO SUGGESTS THE POSSIBILITY THAT UNDER
SOME CIRCUMSTANCES A STATE ACQUITTAL MIGHT NOT BAR A FEDERAL
PROSECUTION, ID., AT 74-75.    FN19  UNITED STATES V. CRUIKSHANK, 92
U.S. 542; COLEMAN V. TENNESSEE, 97 U.S. 509; EX PARTE SIEBOLD, 100 U.S.
371; UNITED STATES V. ARJONA, 120 U.S. 479; CROSS V. NORTH CAROLINA,
132 U.S. 131; IN RE LONEY, 134 U.S. 372; PETTIBONE V. UNITED STATES,
148 U.S. 197; CROSSLEY V. CALIFORNIA, 168 U.S. 640; SEXTON V.
CALIFORNIA, 189 U.S. 319; MATTER OF HEFF, 197 U.S. 488; GRAFTON V.
UNITED STATES, 206 U.S. 333; PONZI V. FESSENDEN, 258 U.S. 254. 

FN20  HEBERT V. LOUISIANA, 272 U.S. 312; WESTFALL V. UNITED STATES,
274 U.S. 256; PUERTO RICO V. THE SHELL CO., 302 U.S. 253; JEROME V.
UNITED STATES, 318 U.S. 101; SCREWS V. UNITED STATES, 325 U.S. 91. 

FN21  WESTFALL V. UNITED STATES, 274 U.S. 256, 258. 

FN22  IN A CHAPTER IN HANDBOOK ON INTERSTATE CRIME CONTROL, A BOOK
PREPARED IN 1938 BY THE INTERSTATE COMMISSION ON CRIME, GORDON DEAN,
THEN SPECIAL EXECUTIVE ASSISTANT TO THE ATTORNEY GENERAL OF THE UNITED
STATES, WROTE: 

"MENTION SHOULD ALSO BE MADE OF THE NATIONAL BANK ROBBERY STATUTE. 
THIS STATUTE PUNISHES ROBBERIES OF NATIONAL BANKS, BANKS WHICH ARE
MEMBERS OF THE FEDERAL RESERVE SYSTEM, AND BANKS THE FUNDS OF WHICH ARE
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION.  AND HERE AGAIN
THERE HAS BEEN NO USURPATION BY THE FEDERAL GOVERNMENT.  THE STATES
STILL MAY PROSECUTE ANY ROBBERY OF ANY BANK WITHIN THEIR JURISDICTION,
AND THEY FREQUENTLY DO.  THERE HAVE BEEN SEVERAL CASES IN THE LAST FEW
YEARS WHERE MEN HAVE BEEN CONVICTED BOTH UNDER THE STATE AND FEDERAL
LAW FOR ROBBING THE SAME BANK.  IN FACT, THERE HAVE BEEN CASES WHERE
MEN HAVE BEEN TRIED UNDER THE LAW OF ONE JURISDICTION, ACQUITTED, AND
ON THE SAME FACTS TRIED UNDER THE LAW OF THE OTHER SOVEREIGNTY AND
CONVICTED.  BANK ROBBERS KNOW TODAY THAT 'FLIGHT,' THEIR MOST VALUABLE
WEAPON, HAS, UNDER THE OPERATION OF THE NATIONAL BANK ROBBERY STATUTE,
PROVED QUITE IMPOTENT.  THE BANK ROBBERY RATE HAS BEEN CUT IN HALF, AND
THERE HAS BEEN A FINE RELATION BETWEEN STATE AND FEDERAL AGENCIES IN
THE APPREHENSION AND TRIAL OF BANK ROBBERS."  ID., AT 114. 

FN23  MCKINNEY V. LANDON, 209 F. 300 (C.A. 8TH CIR.); MORRIS V.
UNITED STATES, 229 F. 516 (C.A. 8TH CIR.); VANDELL V. UNITED STATES, 6
F.2D 188 (C.A.2D CIR.); UNITED STATES V. LEVINE, 129 F.2D 745 (C.A.2D
CIR.); SERIO V. UNITED STATES, 203 F.2D 576 (C.A. 5TH CIR.); JOLLEY V.
UNITED STATES, 232 F.2D 83 (C.A. 5TH CIR.); SMITH V. UNITED STATES, 243
F.2D 877 (C.A. 6TH CIR.); RIOS V. UNITED STATES, 256 F.2D 173 (C.A. 9TH
CIR.); UNITED STATES V. AMY, 24 FED. CAS. NO. 14,445 (C.C. VA.); UNITED
STATES V. GIVEN, 25 FED. CAS. NO. 15,211 (C.C. DEL.); UNITED STATES V.
BARNHART, 22 F. 285 (C.C. ORE.); UNITED STATES V. PALAN, 167 F. 991
(C.C.S.D.N.Y.); UNITED STATES V. WELLS, 28 FED. CAS. NO. 16,665 (D.C.
MINN.); UNITED STATES V. CASEY, 247 F. 362 (D.C.S.D. OHIO); UNITED
STATES V. HOLT, 270 F. 639 (D.C.N. DAK.); IN RE MORGAN, 80 F. SUPP. 810
(D.C.N.D. IOWA); UNITED STATES V. MANDILE, 119 F. SUPP. 266
(D.C.E.D.N.Y.).  OF THE MANY PROHIBITION CASES IN THE LOWER FEDERAL
COURTS ONLY UNITED STATES V. HOLT HAS BEEN INCLUDED; ITS INCLUSION IS
MEANT TO REPRESENT THAT BODY OF CASES AND IS PARTICULARLY JUSTIFIED BY
ITS CAREFUL REASONING CONCERNING THE ENTIRE QUESTION OF DUAL
SOVEREIGNTIES AND DOUBLE JEOPARDY.  IT IS BELIEVED THAT THE LIST
CONTAINS MOST OF THE NONPROHIBITION CASES IN THE LOWER FEDERAL COURTS
DISCUSSING AND FAVORING THE RULE THAT TRIAL IN ONE JURISDICTION DOES
NOT BAR PROSECUTION IN ANOTHER FOR A DIFFERENT OFFENSE ARISING FROM THE
SAME ACT.  THREE LOWER FEDERAL COURT CASES HAVE BEEN FOUND QUESTIONING
THE VALIDITY OF THE RULE:  EX PARTE HOUGHTON, 7 F. 657, 8 F. 897 (D.C.
VT.); IN RE STUBBS, 133 F. 1012 (C.C.W.D. WASH.); UNITED STATES V.
CANDELARIA, 131 F. SUPP. 797 (D.C.S.D. CAL.). 

FN24  STATES DENYING THE BAR. 

ARIZONA.  HENDERSON V. STATE, 30 ARIZ. 113, 244 P. 1020 (DESPITE A
LIMITED STATUTORY BAR, HOLDING SUCCESSIVE FEDERAL AND STATE
PROSECUTIONS PERMITTED WHERE ONE IS FOR POSSESSION AND THE OTHER FOR
TRANSPORTATION). 

ARKANSAS.  STATE V. DUNCAN, 221 ARK. 681, 255 S.W.2D 430. 

CALIFORNIA.  PEOPLE V. MCDONNELL, 80 CAL. 285, 22 P. 190; PEOPLE V.
CANDELARIA, 139 CAL.  APP. 2D 432, 294 P.2D 120; PEOPLE V. CANDELARIA,
153 CAL. APP. 2D 879, 315 P.2D 386 (THESE TWO CANDELARIA CASES INDICATE
THAT THE CALIFORNIA STATUTORY BAR, A STATUTE OF THE KIND DISCUSSED
BELOW, PREVENTS A STATE ROBBERY PROSECUTION AFTER A FEDERAL ROBBERY
PROSECUTION, BUT NOT A STATE BURGLARY PROSECUTION IN THE SAME
CIRCUMSTANCES). 

GEORGIA.  SCHEINFAIN V. ALDREDGE, 191 GA. 479, 12 S.E.2D 868; BRYSON
V. STATE, 27 GA.  APP. 230, 108 S.E. 63. 

ILLINOIS.  HOKE V. PEOPLE, 122 ILL. 511, 13 N.E. 823. 

INDIANA.  HEIER V. STATE, 191 IND. 410, 133 N.E. 200; DASHING V.
STATE, 78 IND. 357. 

IOWA.  STATE V. MOORE, 143 IOWA 240, 121 N.W. 1052. 

KENTUCKY.  HALL V. COMMONWEALTH, 197 KY. 179, 246 S.W. 441. 

LOUISIANA.  STATE V. BREAUX, 161 LA. 368, 108 SO. 773, AFF'D PER
CUR., 273 U.S. 645. 

MAINE.  SEE STATE V. GAUTHIER, 121 ME. 522, 529-531, 118 A. 380, 383
385. 

MASSACHUSETTS.  COMMONWEALTH V. NICKERSON, 236 MASS. 281, 128 N.E.
273. 

MICHIGAN.  IN RE ILLOVA, 351 MICH. 204, 88 N.W.2D 589. 

MINNESOTA.  STATE V. HOLM, 139 MINN. 267, 166 N.W. 181. 

MISSOURI.  IN RE JANUARY, 295 MO. 653, 246 S.W. 241. 

NEW HAMPSHIRE.  STATE V. WHITTEMORE, 50 N.H. 245. 

NEW JERSEY.  STATE V. CIOFFE, 130 N.J.L. 160, 32 A.2D 79. 

NEW YORK.  PEOPLE V. WELCH, 141 N.Y. 266, 36 N.E. 328. 

NORTH CAROLINA.  SEE STATE V. BROWN, 2 N.C. *100, 101. 

OREGON.  STATE V. FRACH, 162 ORE.  602, 94 P.2D 143. 

PENNSYLVANIA.  SEE COMMONWEALTH EX REL. O'BRIEN V. BURKE, 171 PA.
SUPER.  273, 90 A.2D 246. 

SOUTH CAROLINA.  STATE V. TUTT, 2 BAILEY 44. 

TENNESSEE.  STATE V. RHODES, 146 TENN. 398, 242 S.W. 642; STATE V.
RANKIN, 4 COLDW.  145. 

VERMONT.  STATE V. O'BRIEN, 106 VT. 97, 170 A. 98. 

VIRGINIA.  JETT V. COMMONWEALTH, 18 GRATT.  (59 VA.)  933. 

WASHINGTON.  STATE V. KENNEY, 83 WASH. 441, 145 P. 450. 

WEST VIRGINIA.  STATE V. HOLESAPPLE, 92 W.VA. 645, 115 S.E. 794.  SEE
MOUNDSVILLE V. FOUNTAIN, 27 W.VA. 182, 197-198. 

WYOMING.  SEE IN RE MURPHY, 5 WYO. 297, 304-309, 40 P. 398, 399-401. 

                        STATE RAISING THE BAR. 

FLORIDA.  BURROWS V. MORAN, 81 FLA. 662, 89 SO. 111 (THIS CASE MAY BE
LIMITED TO THE INTERPRETATION GIVEN BY THE FLORIDA COURT TO THE
EIGHTEENTH AMENDMENT.  SEE STROBHAR V. STATE, 55 FLA. 167, 180-181, 47
SO. 4, 9). 

FN25  ILLINOIS HAD AN ADDITIONAL AND UNIQUE INTEREST IN BARTKUS
BEYOND THE COMMISSION OF THIS PARTICULAR CRIME.  IF BARTKUS WAS GUILTY
OF THE CRIME CHARGED HE WOULD BE AN HABITUAL OFFENDER IN ILLINOIS AND
SUBJECT TO LIFE IMPRISONMENT.  THE ILLINOIS COURT SENTENCED BARTKUS TO
LIFE IMPRISONMENT ON THIS GROUND. 

FN26  MYERS V. UNITED STATES, 272 U.S. 52, 240, 293 (DISSENTING
OPINION). 

FN27  SOME FIFTEEN SUCH STATUTES ARE LISTED IN TENTATIVE DRAFT NO. 5
OF THE AMERICAN LAW INSTITUTE'S MODEL PENAL CODE (1956), P. 61. 

FN28  N.Y. PENAL CODE SEC. 33 AND N.Y. CODE CRIM. PROC. SEC. 139. 

FN29  PEOPLE EX REL. LISS V. SUPERINTENDENT OF WOMEN'S PRISON, 282
N.Y. 115, 25 N.E.2D 869; PEOPLE V. MANGANO, 269 APP. DIV. 954, 57
N.Y.S.2D 891 (2D DEPT.) AFF'D SUB NOM. PEOPLE V. MIGNOGNA, 296 N.Y.
1011, 73 N.E.2D 583; PEOPLE V. SPITZER, 148 MISC. 97, 266 N.Y.S.  522
(SUP. CT.); PEOPLE V. PARKER, 175 MISC. 776, 25 N.Y.S.2D 247 (KINGS
COUNTY CT.); PEOPLE V. EKLOF, 179 MISC. 536, 41 N.Y.S.2D 557 (RICHMOND
COUNTY CT.); PEOPLE V. ADAMCHESKY, 184 MISC. 769, 55 N.Y.S.2D 90 (N.Y.
COUNTY CT.). 

FN30  IN SPECIFIC INSTANCES CONGRESS HAS INCLUDED PROVISIONS TO
PREVENT FEDERAL PROSECUTION AFTER A STATE PROSECUTION BASED UPON
SIMILAR CONDUCT.  SEE, E.G., 18 U.S.C. SEC. 2117 (BURGLARY OF VEHICLE
OF TRANSPORTATION CARRYING INTERSTATE OR FOREIGN SHIPMENTS). 

APPENDIX TO OPINION OF THE COURT OMITTED. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

PETITIONER, BARTKUS, WAS INDICTED IN A UNITED STATES DISTRICT COURT
FOR BANK ROBBERY.  HE WAS TRIED BY A JURY AND ACQUITTED.  SO FAR AS
APPEARS THE TRIAL WAS CONDUCTED FAIRLY BY AN ABLE AND CONSCIENTIOUS
JUDGE.  LATER, BARTKUS WAS INDICTED IN AN ILLINOIS STATE COURT FOR THE
SAME BANK ROBBERY.  THIS TIME HE WAS CONVICTED AND SENTENCED TO LIFE
IMPRISONMENT.  HIS ACQUITTAL IN THE FEDERAL COURT WOULD HAVE BARRED A
SECOND TRIAL IN ANY COURT OF THE UNITED STATES BECAUSE OF THE PROVISION
IN THE FIFTH AMENDMENT THAT NO PERSON SHALL "BE SUBJECT FOR THE SAME
OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB."  THE COURT TODAY
REJECTS BARTKUS' CONTENTION THAT HIS STATE CONVICTION AFTER A FEDERAL
ACQUITTAL VIOLATES THE FOURTEENTH AMENDMENT TO OUR CONSTITUTION.  I
CANNOT AGREE. 

THE COURT'S HOLDING FURTHER LIMITS OUR ALREADY WEAKENED
CONSTITUTIONAL GUARANTEES AGAINST DOUBLE PROSECUTIONS.  UNITED STATES
V. LANZA, 260 U.S. 377, DECIDED IN 1922, ALLOWED FEDERAL CONVICTION AND
PUNISHMENT FOR THE IDENTICAL ACTS BY ONE OF OUR STATES.  TODAY, FOR THE
FIRST TIME IN ITS HISTORY, THIS COURT UPHOLDS THE STATE CONVICTION OF A
DEFENDANT WHO HAD BEEN ACQUITTED OF THE SAME OFFENSE IN THE FEDERAL
COURTS.  I WOULD HOLD THAT A FEDERAL TRIAL FOLLOWING EITHER STATE
ACQUITTAL OR CONVICTION IS BARRED BY THE DOUBLE JEOPARDY CLAUSE OF THE
FIFTH AMENDMENT.  ABBATE V. UNITED STATES, POST, P. 201 (DISSENTING
OPINION).  AND, QUITE APART FROM WHETHER THAT CLAUSE IS AS FULLY
BINDING ON THE STATES AS IT IS ON THE FEDERAL GOVERNMENT, SEE ADAMSON
V. CALIFORNIA, 332 U.S. 46, 68 (DISSENTING OPINION), I WOULD HOLD THAT
BARTKUS' CONVICTION CANNOT STAND.  FOR I THINK DOUBLE PROSECUTIONS FOR
THE SAME OFFENSE ARE SO CONTRARY TO THE SPIRIT OF OUR FREE COUNTRY THAT
THEY VIOLATE EVEN THE PREVAILING VIEW OF THE FOURTEENTH AMENDMENT,
EXPRESSED IN PALKO V. CONNECTICUT, 302 U.S. 319.  (FN1) 

THE FOURTEENTH AMENDMENT, THIS COURT SAID IN PALKO, DOES NOT MAKE ALL
OF THE SPECIFIC GUARANTEES OF THE BILL OF RIGHTS APPLICABLE TO THE
STATES.  BUT, THE COURT NOTED, SOME OF "THE PRIVILEGES AND IMMUNITIES"
OF THE BILL OF RIGHTS, "HAVE BEEN TAKEN OVER  ...  AND BROUGHT WITHIN
THE FOURTEENTH AMENDMENT BY A PROCESS OF ABSORPTION."  302 U.S., AT
326.  THE COURT INDICATED THAT INCORPORATED IN DUE PROCESS WERE THOSE
"PRINCIPLES OF JUSTICE SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF
OUR PEOPLE AS TO BE RANKED AS FUNDAMENTAL."  302 U.S., AT 325.  (FN2)
IT THEN HELD THAT A STATUTE ALLOWING A STATE TO APPEAL IN A CRIMINAL
CASE DID NOT VIOLATE SUCH FUNDAMENTAL PRINCIPLES.  BUT IT EXPRESSLY
LEFT OPEN THE QUESTION OF WHETHER "THE STATE COULD BE PERMITTED AFTER A
TRIAL FREE FROM ERROR TO TRY THE ACCUSED OVER AGAIN."  302 U.S., AT
328.  THAT QUESTION IS SUBSTANTIALLY BEFORE US TODAY. 

FEAR AND ABHORRENCE OF GOVERNMENTAL POWER TO TRY PEOPLE TWICE FOR THE
SAME CONDUCT IS ONE OF THE OLDEST IDEAS FOUND IN WESTERN CIVILIZATION. 
ITS ROOTS RUN DEEP INTO GREEK AND ROMAN TIMES.  (FN3) EVEN IN THE DARK
AGES, WHEN SO MANY OTHER PRINCIPLES OF JUSTICE WERE LOST, THE IDEA THAT
ONE TRIAL AND ONE PUNISHMENT WERE ENOUGH REMAINED ALIVE THROUGH THE
CANON LAW AND THE TEACHINGS OF THE EARLY CHRISTIAN WRITERS.  (FN4)  BY
THE THIRTEENTH CENTURY IT SEEMS TO HAVE BEEN FIRMLY ESTABLISHED IN
ENGLAND, (FN5) WHERE IT CAME TO BE CONSIDERED AS A "UNIVERSAL MAXIM OF
THE COMMON LAW."  (FN6)  IT IS NOT SURPRISING, THEREFORE, THAT THE
PRINCIPLE WAS BROUGHT TO THIS COUNTRY BY THE EARLIEST SETTLERS AS PART
OF THEIR HERITAGE OF FREEDOM, (FN7) AND THAT IT HAS BEEN RECOGNIZED
HERE AS FUNDAMENTAL AGAIN AND AGAIN.  (FN8)  TODAY IT IS FOUND, IN
VARYING FORMS, NOT ONLY IN THE FEDERAL CONSTITUTION, BUT IN THE
JURISPRUDENCE OR CONSTITUTIONS OF EVERY STATE, AS WELL AS MOST FOREIGN
NATIONS.  (FN9) IT HAS, IN FACT, BEEN DESCRIBED AS A PART OF ALL
ADVANCED SYSTEMS OF LAW (FN10) AND AS ONE OF THOSE UNIVERSAL PRINCIPLES
"OF REASON, JUSTICE, AND CONSCIENCE, OF WHICH CICERO SAID: 'NOR IS IT
ONE THING AT ROME AND ANOTHER AT ATHENS, ONE NOW AND ANOTHER IN THE
FUTURE, BUT AMONG ALL NATIONS IT IS THE SAME.'"  (FN11)  WHILE SOME
WRITERS HAVE EXPLAINED THE OPPOSITION TO DOUBLE PROSECUTIONS BY
EMPHASIZING THE INJUSTICE INHERENT IN TWO PUNISHMENTS FOR THE SAME ACT,
(FN12) AND OTHERS HAVE STRESSED THE DANGERS TO THE INNOCENT FROM
ALLOWING THE FULL POWER OF THE STATE TO BE BROUGHT AGAINST THEM IN TWO
TRIALS, (FN13) THE BASIC AND RECURRING THEME HAS ALWAYS SIMPLY BEEN
THAT IT IS WRONG FOR A MAN TO "BE BROUGHT INTO DANGER FOR THE SAME
OFFENCE MORE THAN ONCE."  (FN14)  FEW PRINCIPLES HAVE BEEN MORE DEEPLY
"ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE." 

THE COURT APPARENTLY TAKES THE POSITION THAT A SECOND TRIAL FOR THE
SAME ACT IS SOMEHOW LESS OFFENSIVE IF ONE OF THE TRIALS IS CONDUCTED BY
THE FEDERAL GOVERNMENT AND THE OTHER BY A STATE.  LOOKED AT FROM THE
STANDPOINT OF THE INDIVIDUAL WHO IS BEING PROSECUTED, THIS NOTION IS
TOO SUBTLE FOR ME TO GRASP.  IF DOUBLE PUNISHMENT IS WHAT IS FEARED, IT
HURTS NO LESS FOR TWO "SOVEREIGNS" TO INFLICT IT THAN FOR ONE.  IF
DANGER TO THE INNOCENT IS EMPHASIZED, THAT DANGER IS SURELY NO LESS
WHEN THE POWER OF STATE AND FEDERAL GOVERNMENTS IS BROUGHT TO BEAR ON
ONE MAN IN TWO TRIALS, THAN WHEN ONE OF THESE "SOVEREIGNS" PROCEEDS
ALONE.  IN EACH CASE, INESCAPABLY, A MAN IS FORCED TO FACE DANGER TWICE
FOR THE SAME CONDUCT. 

THE COURT, WITHOUT DENYING THE ALMOST UNIVERSAL ABHORRENCE OF SUCH
DOUBLE PROSECUTIONS, NEVERTHELESS JUSTIFIES THE PRACTICE HERE IN THE
NAME OF "FEDERALISM."  THIS, IT SEEMS TO ME, IS A MISUSE AND
DESECRATION OF THE CONCEPT.  OUR FEDERAL UNION WAS CONCEIVED AND
CREATED "TO ESTABLISH JUSTICE" AND TO "SECURE THE BLESSINGS OF
LIBERTY," NOT TO DESTROY ANY OF THE BULWARKS ON WHICH BOTH FREEDOM AND
JUSTICE DEPEND.  WE SHOULD, THEREFORE, BE SUSPICIOUS OF ANY SUPPOSED
"REQUIREMENTS" OF "FEDERALISM" WHICH RESULT IN OBLITERATING ANCIENT
SAFEGUARDS.  I HAVE BEEN SHOWN NOTHING IN THE HISTORY OF OUR UNION, IN
THE WRITINGS OF ITS FOUNDERS, OR ELSEWHERE, TO INDICATE THAT INDIVIDUAL
RIGHTS DEEMED ESSENTIAL BY BOTH STATE AND NATION WERE TO BE LOST
THROUGH THE COMBINED OPERATIONS OF THE TWO GOVERNMENTS.  NOR HAS THE
COURT GIVEN ANY SOUND REASON FOR THINKING THAT THE SUCCESSFUL OPERATION
OF OUR DUAL SYSTEM OF GOVERNMENT DEPENDS IN THE SLIGHTEST ON THE POWER
TO TRY PEOPLE TWICE FOR THE SAME ACT.    IMPLICIT IN THE COURT'S
RELIANCE ON "FEDERALISM" IS THE PREMISE THAT FAILURE TO ALLOW DOUBLE
PROSECUTIONS WOULD SERIOUSLY IMPAIR LAW ENFORCEMENT IN BOTH STATE AND
NATION.  FOR ONE JURISDICTION MIGHT PROVIDE MINOR PENALTIES FOR ACTS
SEVERELY PUNISHED BY THE OTHER AND BY ACCEPTING PLEAS OF GUILTY SHIELD
WRONGDOERS FROM JUSTICE.  I BELIEVE THIS ARGUMENT FAILS ON SEVERAL
GROUNDS.  IN THE FIRST PLACE IT RELIES ON THE UNWARRANTED ASSUMPTION
THAT STATE AND NATION WILL SEEK TO SUBVERT EACH OTHER'S LAWS.  IT HAS
ELSEWHERE BEEN PERSUASIVELY ARGUED THAT MOST CIVILIZED NATIONS DO NOT
AND HAVE NOT NEEDED THE POWER TO TRY PEOPLE A SECOND TIME TO PROTECT
THEMSELVES EVEN WHEN DEALING WITH FOREIGN LANDS.  (FN15)  IT IS
INCONCEIVABLE TO ME, AS IT WAS TO THE CONSTITUTIONAL COURT OF SOUTH
CAROLINA IN 1816, THAT "IF THIS PREVAILS AMONG NATIONS WHO ARE
STRANGERS TO EACH OTHER, IT COULD FAIL TO PREVAIL WITH US WHO ARE SO
INTIMATELY BOUND BY POLITICAL TIES."  STATE V. ANTONIO, 2 TREADWAY'S
CONST. REP. (S.C.)  776, 781.  CF. TESTA V. KATT, 330 U.S. 386. 

THE COURT'S ARGUMENT ALSO IGNORES THE FACT THAT OUR CONSTITUTION
ALLOCATES POWER BETWEEN LOCAL AND FEDERAL GOVERNEMNTS IN SUCH A WAY
THAT THE BASIC RIGHTS OF EACH CAN BE PROTECTED WITHOUT DOUBLE TRIALS. 
THE FEDERAL GOVERNMENT IS GIVEN POWER TO ACT IN LIMITED AREAS ONLY, BUT
IN MATTERS PROPERLY WITHIN ITS SCOPE IT IS SUPREME.  IT CAN RETAIN
EXCLUSIVE CONTROL OF SUCH MATTERS, OR GRANT THE STATES CONCURRENT POWER
ON ITS OWN TERMS.  IF THE STATES WERE TO SUBVERT FEDERAL LAWS IN THESE
AREAS BY IMPOSING INADEQUATE PENALTIES, CONGRESS WOULD HAVE FULL POWER
TO PROTECT THE NATIONAL INTEREST, EITHER BY DEFINING THE CRIME TO BE
PUNISHED AND ESTABLISHING MINIMUM PENALTIES APPLICABLE IN BOTH STATE
AND FEDERAL COURTS, OR BY EXCLUDING THE STATES ALTOGETHER.  CONVERSELY,
IN PURELY LOCAL MATTERS THE POWER OF THE STATES IS SUPREME AND
EXCLUSIVE.  STATE COURTS CAN AND SHOULD, THEREFORE, PROTECT ALL
ESSENTIALLY LOCAL INTERESTS IN ONE TRIAL WITHOUT FEDERAL INTERFERENCE. 
CF. RUTKIN V. UNITED STATES, 343 U.S. 130, 139 (DISSENTING OPINION). 
IN AREAS, HOWEVER, WHERE THE CONSTITUTION HAS VESTED POWER IN THE
FEDERAL GOVERNMENT THE STATES NECESSARILY ACT ONLY TO THE EXTENT
CONGRESS PERMITS, AND IT IS NO INFRINGEMENT ON THEIR BASIC RIGHTS IF
CONGRESS CHOOSES TO FIX PENALTIES SMALLER THAN SOME OF THEM MIGHT
WISH.  IN FACT, THIS WILL RARELY OCCUR, FOR CONGRESS IS NOT LIKELY TO
USE INDIRECT MEANS TO LIMIT STATE POWER WHEN IT COULD ACCOMPLISH THE
SAME RESULT DIRECTLY BY PRE-EMPTING THE FIELD.  (FN16) 

ULTIMATELY THE COURT'S RELIANCE ON FEDERALISM AMOUNTS TO NO MORE THAN
THE NOTION THAT, SOMEHOW, ONE ACT BECOMES TWO BECAUSE TWO JURISDICTIONS
ARE INVOLVED.  HAWKINS, IN HIS PLEAS OF THE CROWN, LONG AGO DISPOSED OF
A SIMILAR CONTENTION MADE TO JUSTIFY TWO TRIALS FOR THE SAME OFFENSE BY
DIFFERENT COUNTIES AS "A MERE FICTION OR CONSTRUCTION OF LAW, WHICH
SHALL HARDLY TAKE PLACE AGAINST A MAXIM MADE IN FAVOUR OF LIFE." 
(FN17)  IT WAS DISCARDED AS A DANGEROUS FICTION THEN, IT SHOULD BE
DISCARDED AS A DANGEROUS FICTION NOW. 

TO BOLSTER ITS ARGUMENT THAT SUCCESSIVE STATE AND FEDERAL
PROSECUTIONS DO NOT VIOLATE BASIC PRINCIPLES OF JUSTICE, THE COURT
CITES MANY CASES.  IT BEGINS WITH EIGHT EARLY STATE DECISIONS WHICH, IT
SAYS, "CLARIFIED THE ISSUE BY STATING OPPOSING ARGUMENTS."  FOUR OF
THESE CASES HELD THAT PROSECUTION BY ONE GOVERNMENT MUST BAR SUBSEQUENT
PROSECUTIONS ELSEWHERE.  (FN18)  TWO OF THE REMAINING FOUR REFUSED TO
HOLD THAT CONCURRENT JURISDICTION COULD EXIST SINCE THEY FEARED THAT
SUCH A HOLDING MIGHT BRING ABOUT TWO TRIALS FOR THE SAME OFFENSE, A
RESULT THEY CONSIDERED TOO SHOCKING TO TOLERATE.  "THIS IS AGAINST
NATURAL JUSTICE," SAID THE NORTH CAROLINA SUPERIOR COURT IN 1794, "AND
THEREFORE I CANNOT BELIEVE IT TO BE LAW."  (FN19)  THE SEVENTH CASE
CITED IS AN INCONCLUSIVE DISCUSSION COMING FROM A STATE WHOSE HIGHEST
COURT HAD PREVIOUSLY STATED UNEQUIVOCALLY THAT A BAR AGAINST DOUBLE
PROSECUTIONS WOULD EXIST.  (FN20)  THUS ONLY ONE OF THESE EARLY STATE
CASES ACTUALLY APPROVES THE DOCTRINE THE COURT TODAY ADVANCES, AND THAT
APPROVAL IS IN DICTA.  (FN21) SIGNIFICANTLY, THE HIGHEST COURT OF THE
SAME STATE LATER EXPRESSED THE VIEW THAT SUCH DOUBLE TRIALS WOULD
VIRTUALLY NEVER OCCUR IN OUR COUNTRY.  (FN22) 

THE COURT RELIES MAINLY, HOWEVER, ON A LATER LINE OF DECISIONS
STARTING WITH FOX V. OHIO, 5 HOW.  410.  MOST OF THESE, LIKE FOX
ITSELF, INVOLVED ONLY THE QUESTION OF WHETHER BOTH STATE AND FEDERAL
GOVERNMENTS COULD MAKE THE SAME CONDUCT A CRIME.  ALTHOUGH SOME, IN
DICTA, ADMITTED THE POSSIBILITY THAT DOUBLE PROSECUTIONS MIGHT RESULT
FROM SUCH CONCURRENT POWER, OTHERS DID NOT DISCUSS THE QUESTION. 
(FN23)  MANY, ESPECIALLY AMONG THE EARLIER CASES, POINTED OUT THAT
DOUBLE PUNISHMENT VIOLATES THE GENIUS OF OUR FREE COUNTRY AND THEREFORE
WOULD NEVER OCCUR.  AS CHIEF JUSTICE TANEY, ON CIRCUIT, SAID IN ONE OF
THEM "YET IN ALL CIVILIZED COUNTRIES IT IS RECOGNIZED AS A FUNDAMENTAL
PRINCIPLE OF JUSTICE THAT A MAN OUGHT NOT TO BE PUNISHED TWICE FOR THE
SAME OFFENCE; AND IF THIS PARTY HAD BEEN PUNISHED  ...  IN THE STATE
TRIBUNAL, THE COURT WOULD HAVE FELT IT TO BE ITS DUTY TO SUSPEND
SENTENCE, AND TO REPRESENT THE FACTS TO THE PRESIDENT, TO GIVE HIM AN
OPPORTUNITY OF  ... GRANTING A PARDON."  (FN24)  WHILE A LIMITED NUMBER
OF CASES AFTER FOX ARE CITED IN WHICH A DOUBLE CONVICTION WAS UPHELD,
IN SEVERAL OF THESE THE SECOND COURT WAS SO TROUBLED BY THE RESULT THAT
ONLY NOMINAL SENTENCES WERE IMPOSED.  (FN25)  IN FACT, BEFORE UNITED
STATES V. LANZA, 260 U.S. 377 (1922), WHERE THIS COURT UPHELD AND
ENCOURAGED THE PRACTICE, THE CASES OF ACTUAL DOUBLE PUNISHMENT FOUND
ARE SO FEW, IN RELATION TO THE GREAT MASS OF CRIMINAL CASES DECIDED,
THAT ONE CAN READILY DISCERN AN INSTINCTIVE UNWILLINGNESS TO IMPOSE
SUCH HARDSHIPS ON DEFENDANTS.  (FN26) 

DESPITE ITS EXHAUSTIVE RESEARCH, THE COURT HAS CITED ONLY THREE CASES
BEFORE LANZA WHERE A NEW TRIAL AFTER AN ACQUITTAL WAS UPHELD.  IN ONE
OF THESE, UNITED STATES V. BARNHART, 22 F. 285, THE STATE COURT IN
WHICH THE DEFENDANT HAD BEEN ACQUITTED DID NOT HAVE JURISDICTION OF THE
ACTION.  THE FEDERAL CIRCUIT COURT RELIED ON THIS LACK OF JURISDICTION
IN ALLOWING A RETRIAL, BUT MADE AN ALTERNATE HOLDING BASED ON THE SAME
GENERAL ARGUMENTS USED BY THE COURT TODAY.  (FN27)  THE BARNHART
OPINION ALSO INTIMATED THAT THE FIRST TRIAL MAY HAVE BEEN A SHAM. 
(FN28)  SHAM TRIALS, AS WELL AS THOSE BY COURTS WITHOUT JURISDICTION,
HAVE BEEN CONSIDERED BY COURTS AND COMMENTATORS NOT TO BE JEOPARDY, AND
MIGHT THEREFORE NOT BAR SUBSEQUENT CONVICTIONS.  (FN29)  IN THE SECOND
CASE CITED BY THE COURT, THE STATE CONVICTION FOLLOWED ACQUITTAL BY A
FEDERAL COURT-MARTIAL AT A TIME WHEN, AS THE STATE COURT SEEMED TO
RECOGNIZE, A MILITARY TRIAL WAS THOUGHT BY MANY NOT TO BE A TRIAL FOR
THE PURPOSE OF DOUBLE JEOPARDY EVEN WHEN BOTH TRIALS WERE CONDUCTED BY
THE SAME "SOVEREIGN."  (FN30) THE THIRD CASE RELIED ON, A 1915 DECISION
FROM THE STATE OF WASHINGTON, IS THE ONLY ONE OF THE THREE WHERE IT CAN
FAIRLY BE SAID THAT A DEFENDANT ACQUITTED IN A PROPER JURY TRIAL WAS
SUBSEQUENTLY TRIED AGAIN BY A JURY AND CONVICTED.  (FN31) 

ONE MAY, I THINK, INFER FROM THE FEWNESS OF THE CASES THAT RETRIALS
AFTER ACQUITTAL HAVE BEEN CONSIDERED PARTICULARLY OBNOXIOUS, WORSE
EVEN, IN THE EYES OF MANY, THAN RETRIALS AFTER CONVICTION.  (FN32)  I
DOUBT, IN FACT, IF MANY PRACTICES WHICH HAVE BEEN FOUND TO VIOLATE DUE
PROCESS CAN BOAST OF SO LITTLE ACTUAL SUPPORT.  YET IT IS ON THIS
MEAGER BASIS THAT THE COURT MUST ULTIMATELY REST ITS FINDING THAT
BARTKUS' RETRIAL DOES NOT VIOLATE FUNDAMENTAL PRINCIPLES "ROOTED IN THE
TRADITIONS AND CONSCIENCE OF OUR PEOPLES."  NOR ARE THESE SCATTERED AND
DUBIOUS CASES UNCHALLENGED, FOR, BALANCED AGAINST THEM, WE HAVE A FIRM
HOLDING BY THIS COURT SUSTAINING AN EXTREMELY NARROW CONSTRUCTION OF A
FEDERAL STATUTE IN ORDER TO MAKE A STATE ACQUITTAL CONCLUSIVE IN THE
FEDERAL COURTS AND THEREBY AVOID THE EVIL APPROVED TODAY.  UNITED
STATES V. MASON, 213 U.S. 115.  THAT CASE, AS WELL AS THE "SACRED DUTY
...  TO MAINTAIN UNIMPAIRED THOSE SECURITIES FOR THE PERSONAL RIGHTS OF
THE INDIVIDUAL WHICH HAVE RECEIVED FOR AGES THE SANCTION OF THE JURIST
AND THE STATESMAN," EX PARTE LANGE, 18 WALL.  163, 178, SHOULD MAKE US
DOUBLY HESITANT TO ENCOURAGE SO BLATANT A VIOLATION OF CONSTITUTIONAL
POLICIES AGAINST DOUBLE TRIALS BY GIVING AN "ILLIBERAL CONSTRUCTION
...  TO THE WORDS OF THE FUNDAMENTAL LAW IN WHICH THEY ARE EMBODIED." 
IBID. 

SINCE LANZA PEOPLE HAVE APPARENTLY BECOME MORE ACCUSTOMED TO DOUBLE
TRIALS, ONCE DEEMED SO SHOCKING, JUST AS THEY MIGHT, IN TIME, ADJUST
THEMSELVES TO ALL OTHER VIOLATIONS OF THE BILL OF RIGHTS SHOULD THEY BE
SANCTIONED BY THIS COURT.  THE COURT IS THEREFORE ABLE TO FIND A 1943
STATE CASE, AS WELL AS FOUR FEDERAL CASES IN THE LAST FIVE YEARS, IN
WHICH A CONVICTION FOLLOWING ACQUITTAL WAS SUSTAINED.  (FN33)  THUS
THIS PRACTICE, WHICH FOR SOME 150 YEARS WAS CONSIDERED SO UNDESIRABLE
THAT THE COURT MUST STRAIN TO FIND EXAMPLES, IS NOW LIKELY TO BECOME A
COMMONPLACE.  FOR, AFTER TODAY, WHO WILL BE ABLE TO BLAME A
CONSCIENTIOUS PROSECUTOR FOR FAILING TO ACCEPT A JURY VERDICT OF
ACQUITTAL WHEN HE BELIEVES A DEFENDANT GUILTY AND KNOWS THAT A SECOND
TRY IS AVAILABLE IN ANOTHER JURISDICTION AND THAT SUCH A SECOND TRY IS
APPROVED BY THE HIGHEST COURT IN THE LAND?  INEVITABLY, THE VICTIMS OF
SUCH DOUBLE PROSECUTIONS WILL MOST OFTEN BE THE POOR AND THE WEAK IN
OUR SOCIETY, INDIVIDUALS WITHOUT FRIENDS IN HIGH PLACES WHO CAN
INFLUENCE PROSECUTORS NOT TO TRY THEM AGAIN.  THE POWER TO TRY A SECOND
TIME WILL BE USED, AS HAVE ALL SIMILAR PROCEDURES, TO MAKE SCAPEGOATS
OF HELPLESS, POLITICAL, RELIGIOUS, OR RACIAL MINORITIES AND THOSE WHO
DIFFER, WHO DO NOT CONFORM AND WHO RESIST TYRANNY.  SEE CHAMBERS V.
FLORIDA, 309 U.S. 227, 236. 

THERE ARE SOME COUNTRIES THAT ALLOW THE DANGEROUS PRACTICE OF TRYING
PEOPLE TWICE.  I AM INSERTING BELOW A RECENT NEWS ITEM ABOUT A MAN WHO
WAS TRIED, CONVICTED, SENTENCED TO PRISON AND THEN WAS TRIED AGAIN,
CONVICTED AND SENTENCED TO DEATH.  (FN34)  SIMILAR EXAMPLES ARE NOT
HARD TO FIND IN LANDS TORN BY REVOLUTION OR CRUSHED BY DICTATORSHIP.  I
HAD THOUGHT THAT OUR CONSTITUTIONAL PROTECTIONS EMBODIED IN THE DOUBLE
JEOPARDY AND DUE PROCESS CLAUSES WOULD HAVE BARRED ANY SUCH THINGS
HAPPENING HERE.  UNFORTUNATELY, LAST YEAR'S HOLDINGS BY THIS COURT IN
CIUCCI V. ILLINOIS, 356 U.S. 571, AND HOAG V. NEW JERSEY, 356 U.S. 464,
AND TODAY'S AFFIRMANCE OF THE CONVICTIONS OF BARTKUS AND ABBATE CAUSE
ME TO FEAR THAT IN AN IMPORTANT NUMBER OF CASES IT CAN HAPPEN HERE. 

I WOULD REVERSE. 

FN1  WHILE I PARTICIPATED IN THE COURT'S HOLDING AND OPINION IN PALKO
I HAVE SINCE EXPRESSED MY DISAGREEEMNT WITH BOTH, AS HAS MR. JUSTICE
DOUGLAS.  ADAMSON V. CALIFORNIA, 332 U.S. 46, 68 (DISSENTING OPINION). 
SEE ALSO ROCHIN V. CALIFORNIA, 342 U.S. 165, 174, 177 (CONCURRING
OPINIONS); HOAG V. NEW JERSEY, 356 U.S. 464, 477, 480, N. 5 (DISSENTING
OPINION). 

FN2  THE COURT EXPRESSED THE SAME THOUGHT IN VARIOUS OTHER WAYS.  THE
CRUCIAL PRINCIPLES WERE TERMED THOSE "IMPLICIT IN THE CONCEPT OF
ORDERED LIBERTY," 302 U.S., AT 325; THOSE WITHOUT WHICH IT WOULD BE
IMPOSSIBLE "TO MAINTAIN A FAIR AND ENLIGHTENED SYSTEM OF JUSTICE,"
IBID.; OR WITHOUT WHICH "NEITHER LIBERTY NOR JUSTICE WOULD EXIST," ID.,
AT 326; THOSE "FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE
AT THE BASE OF ALL OUR CIVIL AND POLITICAL INSTITUTIONS," AND THOSE
WHOSE ABSENCE CREATES "A HARDSHIP SO ACUTE AND SHOCKING THAT OUR POLICY
WILL NOT ENDURE IT."  ID., AT 328. 

FN3  SEE BONNER, LAWYERS AND LITIGANTS IN ANCIENT ATHENS, 195; 1
POTTER, GRECIAN ANTIQUITIES (1808), 194; RADIN, ROMAN LAW, 475, N. 28;
2 SHERMAN, ROMAN LAW IN THE MODERN WORLD (3D ED. 1937), 488-489;
BERNER, NON BIS IN IDEM, 3 ARCHIV FUR PREUSSISCHES STRAFRECHT (1855),
472; DIGEST OF JUSTINIAN:  DIGEST 48.2.7.2, TRANSLATED IN 11 SCOTT, THE
CIVIL LAW, 17, AS "THE GOVERNOR SHOULD NOT PERMIT THE SAME PERSON TO BE
AGAIN ACCUSED OF CRIME OF WHICH HE HAS BEEN ACQUITTED." 

FN4  THE CANON LAW OPPOSITION TO DOUBLE TRIALS STEMMED FROM A READING
GIVEN BY ST. JEROME IN 391 A.D. TO I NAHUM 9 (DOUAY VERSION), "THERE
SHALL NOT RISE A DOUBLE AFFLICTION."  (IN THE KING JAMES VERSION, I
NAHUM 9, IS GIVEN AS "AFFLICTION SHALL NOT RISE UP THE SECOND TIME.") 
JEROME DREW FROM THIS THE RULE THAT GOD DOES NOT PUNISH TWICE FOR THE
SAME ACT.  SEE 25 MIGNE, PATROLOGIA LATINA (1845), 1238.  THIS MAXIM
FOUND ITS WAY INTO CHURCH CANONS AS EARLY AS 847 A.D. AND WAS
SUBSEQUENTLY GIVEN AS, "NOT EVEN GOD JUDGES TWICE FOR THE SAME ACT." 
SEE BROOKE, THE ENGLISH CHURCH AND THE PAPACY, 205; 2 MAITLAND,
COLLECTED PAPERS (FISHER ED.  1911), ESSAY, HENRY II AND THE CRIMINOUS
CLERKS, 239; 1 POLLOCK AND MAITLAND, HISTORY OF ENGLISH LAW (2D ED.
1899), 448-449; POOLE, DOMESDAY BOOK TO MAGNA CARTA, 206.  SEE ALSO
BERNER, OP. CIT., SUPRA, NOTE 3, EMPHASIZING THE ROMAN ANTECEDENTS OF
THE CANON LAW RULE. 

FN5  SEE 2 BRACTON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE (WOODBINE
ED. 1922), 391, 397, APPLYING THE CONCEPT EVEN TO ACQUITTALS IN TRIAL
BY BATTLE.  CF. 2 HAWKINS, PLEAS OF THE CROWN (4TH ED. 1762), 368-379;
2 STAUNDEFORDE, LES PLEES DEL CORONE (REV. ED. 1583), 105-108.    IN
THE TWELFTH CENTURY AVOIDANCE OF DOUBLE PUNISHMENT WAS A MAJOR ELEMENT
IN THE CELEBRATED CONTROVERSY BETWEEN ST. THOMAS BECKET AND KING HENRY
II.  HENRY WANTED CLERICS WHO HAD BEEN CONVICTED OF CRIMES IN CHURCH
COURTS TURNED OVER TO LAY TRIBUNALS FOR THEIR PUNISHMENT.  WHETHER
BECKET WAS IN FACT CORRECT IN HIS ASSERTIONS THAT HENRY'S PROPOSALS
WOULD RESULT IN DOUBLE PUNISHMENT FOR THE CLERICS HAS BEEN MUCH DEBATED
BY HISTORIANS.  IN ALL EVENTS, HENRY'S PLAN WAS ABANDONED AFTER
BECKET'S MURDER.  SEE BROOKE, OP. CIT., SUPRA, NOTE 4, AT 190-214; 2
MAITLAND, OP. CIT., SUPRA, NOTE 4; 1 POLLOCK AND MAITLAND, OP. CIT.,
SUPRA, NOTE 4, AT 447-456; POOLE, OP. CIT., SUPRA, NOTE 4, AT 203-218. 
FN6  2 COOLEY'S BLACKSTONE (4TH ED. 1899), *335, 336.  SEE ALSO 2
STAUNDEFORDE, OP. CIT., SUPRA, NOTE 5, AT 105-108; LAMBERT, CROMPTON
AND DALTON, MANUALL OR ANALECTA (REV. ED. 1642), 69-70; 3 COKE,
INSTITUTES (6TH ED. 1680), 213-214; 2 HAWKINS, OP. CIT., SUPRA, NOTE 5,
AT 368-379.  ONE COMMENTATOR HAS STATED THAT THE CONCEPT WAS BORROWED
BY ENGLISH LAW FROM THE CANON LAW DOCTRINE OF CRIMINAL PROCEDURE. 
RADIN, ANGLO-AMERICAN LEGAL HISTORY, 228. 

IN 1487 AN EXCEPTION WAS MADE IN THE RULE BY A STATUTE DEALING WITH
THE "AUTHORITY OF THE COURT OF STAR CHAMBER," 3 HEN.  7, C. 1.  AT THE
TIME CRIMINAL PROCEEDINGS COULD BE BROUGHT IN TWO WAYS, BY GOVERNMENT
INDICTMENT AND BY THE PARTIES WHO SUFFERED INJURY FROM THE CRIME.  3
HEN.  7, C. 1, PROVIDED THAT IN "DEATH OR MURDER" CASES A DEFENDANT
ACQUITTED OR ATTAINTED UNDER GOVERNMENT PROSECUTION COULD BE TRIED
AGAIN ON CHARGES BROUGHT BY "THE WIFE, OR NEXT HEIR TO HIM SO SLAIN." 
THE ACT WAS APPARENTLY NEVER BROADENED AND WAS GIVEN AN EXTREMELY
NARROW CONSTRUCTION.  SEE HAWKINS, OP. CIT., SUPRA, NOTE 5, AT 106
108.  IT SOON FELL INTO DISUSE, AND THE LEGAL PROFESSION WAS GREATLY
SHOCKED WHEN, IN 1818, THE STATUTE WAS RELIED ON TO JUSTIFY THE RETRIAL
OF A DEFENDANT WHO HAD PREVIOUSLY BEEN ACQUITTED.  AFTER MANY
MANEUVERS, WHICH INCLUDED UPHOLDING THE DEFENDANT'S RIGHT TO TRIAL BY
BATTLE, A SECOND ACQUITTAL WAS OBTAINED, AND THE LOOPHOLE IN THE
"UNIVERSAL RULE" AGAINST DOUBLE TRIALS WAS FORMALLY PLUGGED BY
PARLIAMENT.  SEE RADIN, ANGLO-AMERICAN LEGAL HISTORY, 226-227, N. 24;
KIRK, "JEOPARDY" DURING THE PERIOD OF THE YEAR BOOKS, 32 U. PA. L. REV.
602, 608-609. 

FN7  THE BODY OF LIBERTIES OF MASSACHUSETTS (1641), CLAUSE 42, READS,
"NO MAN SHALL BE TWISE SENTENCED BY CIVILL JUSTICE FOR ONE AND THE SAME
CRIME, OFFENCE, OR TRESPASSE."  SEE ALSO THE LAWS AND LIBERTIES OF
MASSACHUSETTS (1648)(FARRAND ED. 1929) 47, "EVERIE ACTION  ...  IN
CRIMINAL CAUSES SHALL BE  ...  ENTERED IN THE ROLLS OF EVERIE COURT
...  THAT SUCH ACTIONS BE NOT AFTERWARDS BROUGHT AGAIN TO THE VEXATION
OF ANY MAN."  SIMILARLY THE PLEAS OF FORMER CONVICTION AND ACQUITTAL
WERE RECOGNIZED IN COLONIAL VIRGINIA.  SCOTT, CRIMINAL LAW IN COLONIAL
VIRGINIA, 81-82, 102. 

FN8  SEE, E.G., EX PARTE LANGE, 18 WALL.  163; GREEN V. UNITED
STATES, 355 U.S. 184, 198 (MAJORITY AND DISSENTING OPINIONS);
COMMONWEALTH V. OLDS, 5 LITT.  REP.  (KY.) 137 (1824); STATE V. COOPER,
13 N.J.L. 361, 370 (1833). 

FN9  ALL BUT FIVE STATES RECOGNIZE THE PRINCIPLE IN THEIR
CONSTITUTIONS.  EACH OF THESE FIVE PROHIBITS DOUBLE JEOPARDY AS PART OF
ITS COMMON LAW.  SEE BROCK V. NORTH CAROLINA, 344 U.S. 424, 429, 435
(DISSENTING OPINION); AMERICAN LAW INSTITUTE, DOUBLE JEOPARDY (1935),
61-72. 

THE MAXIM "NON BIS IN IDEM" IS FOUND THROUGHOUT THE CIVIL LAW.  SEE
BATCHELDER, FORMER JEOPARDY, 17 AM. L. REV. 735.  SEE ALSO BERNER, NON
BIS IN IDEM, 3 ARCHIV FUR PREUSSISCHES STRAFRECHT (1855), 472; KUSSNER,
NON BIS IN IDEM, ID., AT 198; DONNEDIEU DE VABRES, DROIT CRIMINEL (3D
ED. 1947), 886-887; IT. CODICE DI PROCEDURA PENALE, ART. 90, 579 (LUDUS
ED.  1955).  BUT CF. RADIN, ANGLO-AMERICAN LEGAL HISTORY, 228. 

FN10  AMERICAN LAW INSTITUTE, DOUBLE JEOPARDY (1935), INTRODUCTORY
NOTE, P. 7. 

FN11  BATCHELDER, FORMER JEOPARDY, 17 AM. L. REV. 735. 

FN12  SEE, E.G., EX PARTE LANGE, 18 WALL.  163, 168-169. 

FN13  SEE, E.G., COMMONWEALTH V. OLDS, 5 LITT.  REP.  (KY.) 137, 139
(1824); STATE V. COOPER, 13 N.J.L. 361, 370-371 (1833); 2 TUCKER,
CONSTITUTION OF THE UNITED STATES, 675. 

FN14  2 HAWKINS, OP. CIT., SUPRA, NOTE 5, AT 372.  SEE ALSO ID., AT
377. 

FN15  GRANT, THE LANZA RULE OF SUCCESSIVE PROSECUTIONS, 32 COL. L.
REV. 1309; GRANT, SUCCESSIVE PROSECUTIONS BY STATE AND NATION, 4
U.C.L.A.L. REV. 1; DEVELOPMENTS IN THE LAW - CONSPIRACY, 72 HARV. L.
REV. 920, 968, N. 347.  CF. FELDMAN V. UNITED STATES, 322 U.S. 487, 494
(DISSENTING OPINION); KNAPP V. SCHWEITZER, 357 U.S. 371, 382
(DISSENTING OPINION).  IN ENGLAND THE DOCTRINE THAT A FOREIGN ACQUITTAL
IS A GOOD PLEA IN BAR SEEMS TO ANTEDATE THE AMERICAN REVOLUTION.  SEE
REX V. HUTCHINSON, AS REPORTED IN BEAK V. THYRWHIT, 3 MOD. 194, 87 ENG.
REP. 124 (1689), AND BURROWS V. JEMINO, 2 STR.  733, 93 ENG. REP. 815
(1726), BUT COMPARE THE REPORT OF THE SAME CASE IN GAGE V. BULKELEY,
RIDG.  T.H. 263, 27 ENG. REP.  824 (1744); REX V. ROCHE, 1 LEACH 134,
135N, 168 ENG. REP. 169, 169N (1775).  CF. REX V. THOMAS, 1 SID.  179,
82 ENG. REP. 1043; 1 LEV.  118, 83 ENG. REP. 326; 1 KEB.  663, 83 ENG.
REP.  1172 (1664); 2 HAWKINS, OP. CIT., SUPRA, NOTE 5, AT 372.  SEE
ALSO REX V. AUGHET, 26 COX C.C.  232, 238 (C.C.A. 1918); 10 HALSBURY,
THE LAWS OF ENGLAND (3D ED. 1955), 405. 

FN16  SEE, E.G., HINES V. DAVIDOWITZ, 312 U.S. 52.  CF. WEBER V.
ANHEUSER-BUSCH, INC., 348 U.S. 468.  SIGNIFICANTLY, UNITED STATES V.
LANZA, 260 U.S. 377, INVOLVED THE ONLY SITUATION WHERE THE COURT'S
ARGUMENT MAY HAVE HAD SOME SLIGHT VALIDITY.  FOR THAT CASE WAS
CONCERNED WITH A PROHIBITION VIOLATION, AND THE EIGHTEENTH
(PROHIBITION) AMENDMENT COULD BE TAKEN TO HAVE ESTABLISHED AN AREA OF
CONCURRENT STATE AND NATIONAL POWER WHERE THE FEDERAL GOVERNMENT WAS
NOT SUPREME.  SEE PENNSYLVANIA V. NELSON, 350 U.S. 497, 500. 

FN17  2 HAWKINS, OP. CIT., SUPRA, NOTE 5, AT 370.  SEE ALSO 2
STAUNDEFORDE, OP. CIT., SUPRA, NOTE 5, AT 105-106. 

FN18  STATE V. ANTONIO, 2 TREADWAY'S CONST. REP. (S.C.)  776 (1816);
STATE V. RANDALL, 2 AIKENS (VT.)  89 (1827); HARLAN V. PEOPLE, 1 DOUG,
REP. (MICH.) 207 (1843); COMMONWEALTH V. FULLER, 8 MET.  (MASS.) 313
(1844). 

FN19  STATE V. BROWN, 2 N.C. *100, 101 (1794).  SEE ALSO MATTISON V.
STATE, 3 MO. *421 (1834). 

FN20  STATE V. TUTT, 2 BAILEY (S.C.)  44 (1830).  COMPARE STATE V.
ANTONIO, 2 TREADWAY'S CONST. REP. (S.C.)  776 (1816). 

FN21  HENDRICK V. COMMONWEALTH, 5 LEIGH (VA.)  707 (1834). 

FN22  JETT V. COMMONWEALTH, 18 GRATT.  (59 VA.)  933, 947, 959
(1867). 

FN23  SEE, E.G., STATE V. DUNCAN, 221 ARK. 681, 255 S.W.2D 430;
DASHING V. STATE, 78 IND. 357; STATE V. GAUTHIER, 121 ME. 522, 118 A.
380; COMMONWEALTH V. NICKERSON, 236 MASS.  281, 128 N.E. 273; STATE V.
HOLM, 139 MINN. 267, 166 N.W. 181; STATE V. WHITTEMORE, 50 N.H. 245;
STATE V. FRACH, 162 ORE.  602, 94 P.2D 143; COMMONWEALTH EX REL.
O'BRIEN V. BURKE, 171 PA. SUPER.  273, 90 A.2D 246; JETT V.
COMMONWEALTH, 18 GRATT.  (59 VA.)  933.  SEE ALSO STATE V. TUTT, 2
BAILEY (S.C.)  44; STATE V. BROWN, 2 N.C. *100.  DICTA CAN, OF COURSE,
BE FOUND WHICH RUNS AGAINST THE COURT'S HOLDING.  SEE, E.G., NIELSEN V.
OREGON, 212 U.S. 315, 320, WHERE THIS COURT SAID:  "WHERE AN ACT IS
... PROHIBITED AND PUNISHABLE BY THE LAWS OF BOTH STATES, THE ONE FIRST
ACQUIRING JURISDICTION OF THE PERSON MAY PROSECUTE THE OFFENSE, AND ITS
JUDGMENT IS A FINALITY IN BOTH STATES, SO THAT ONE CONVICTED OR
ACQUITTED IN THE COURTS OF THE ONE STATE CANNOT BE PROSECUTED FOR THE
SAME OFFENSE IN THE COURTS OF THE OTHER."  AND UNITED STATES V.
FURLONG, 5 WHEAT.  184, 197, "ROBBERY ON THE SEAS IS ... WITHIN THE
CRIMINAL JURISDICTION OF ALL NATIONS  ...  AND THERE CAN BE NO DOUBT
THAT THE PLEA OF AUTRE FOIS ACQUIT WOULD BE GOOD IN ANY CIVILIZED
STATE, THOUGH RESTING ON A PROSECUTION INSTITUTED IN THE COURTS OF ANY
OTHER CIVILIZED STATE." 

FN24  UNITED STATES V. AMY, 24 FED. CAS. NO. 14,445, AT 811.  SEE
ALSO FOX V. OHIO, 5 HOW.  410, 435; UNITED STATES V. WELLS, 28 FED.
CAS. 522, NO. 16,665; JETT V. COMMONWEALTH, 18 GRATT.  (59 VA.)  933,
947. 

FN25  SEE, E.G., UNITED STATES V. PALAN, 167 F. 991, 992-993, "TO
PUNISH A MAN TWICE FOR THE SAME OFFENCE SHOCKS THE SENSE OF JUSTICE." 
SEE ALSO UNITED STATES V. HOLT, 270 F. 639, 642-643. 

FN26  THE COURT ALSO RELIES ON CASES ARISING SINCE LANZA WHERE FEAR
OF THAT HOLDING CAUSED TIGHT CONSTRUCTION OF FEDERAL LAWS TO AVOID
DOUBLE PROSECUTIONS.  SEE JEROME V. UNITED STATES, 318 U.S. 101; SCREWS
V. UNITED STATES, 325 U.S. 91.  CF. PENNSYLVANIA V. NELSON, 350 U.S.
497, 509.  THESE CASES CAN HARDLY BE THOUGHT TO APPROVE THE RESULT THEY
SOUGHT TO AVOID. 

FN27  THE CASE INVOLVED THE KILLING OF AN INDIAN BY WHITE MEN ON AN
INDIAN RESERVATION.  THE COURT SAID:  "THE DEFENDANTS HAVE NEVER BEEN
TRIED FOR THE OFFENSE CHARGED IN THIS INDICTMENT.  FOR EITHER, THE
STATE COURT BEFORE WHICH THEY WERE TRIED HAD NO JURISDICTION IN THE
PREMISES, AND THEN THE PROCEEDING SET FORTH IN THE PLEAS WAS A NULLITY;
OR IF IT HAD, IT WAS AN OFFENSE AGAINST THE LAW OF THE STATE AND NOT
THE UNITED STATES."  22 F., AT 201.  THE COURT WAS CORRECT IN ITS
BELIEF THAT THE STATE COURT HAD NO JURISDICTION.  SEE WILLIAMS V. LEE,
358 U.S. 217.  THE DECISION WAS ON A DEMURRER TO A PLEA OF FORMER
ACQUITTAL AND IT DOES NOT APPEAR WHETHER THE FEDERAL JURY CONVICTED. 

FN28  THE COURT NOTED, "NO WHITE MAN WAS EVER HUNG FOR KILLING AN
INDIAN, AND NO INDIAN TRIED FOR KILLING A WHITE MAN EVER ESCAPED THE
GALLOWS."  22 F., AT 289. 

FN29  SEE, E.G., UNITED STATES V. BALL, 163 U.S. 662, 669; EDWARDS V.
COMMONWEALTH, 233 KY. 356, 25 S.W.2D 746.  CF. UNITED STATES V. MASON,
213 U.S. 115, 120, 125.  SEE ALSO 2 HAWKINS, OP. CIT., SUPRA, NOTE 5,
AT 370. 

FN30  STATE V. RANKIN, 4 COLD.  (TENN.)  145, 157 (1867).  THE RANKIN
COURT CITED AN ACCOUNT OF A FEDERAL COURT-MARTIAL FOLLOWING ACQUITTAL
BY FLORIDA TERRITORIAL COURTS.  SIMILARLY, UNITED STATES V. CASHIEL, 25
FED. CAS. 318, NO. 14,744 (1863), UPHELD A FEDERAL PROSECUTION
FOLLOWING PROSECUTION BY THE UNITED STATES MILITARY AUTHORITIES. 

FN31  STATE V. KENNEY, 83 WASH. 441, 145 P. 450. 

FN32  SEE, E.G., COMMONWEALTH V. OLDS, 5 LITT.  REP.  (KY.) 137, 139;
STATE V. COOPER, 13 N.J.L. 361, 370-371.  SEE ALSO IOWA CONST., ART. I,
SEC. 12; MICH. CONST., ART. II, SEC. 14; MO. CONST., ART. I, SEC. 19;
N.H. CONST., PT. FIRST ART. 16; N.J. CONST., ART. I, PARA. 11; R.I.
CONST., ART. I, SEC. 7; TEX. CONST., ART. I. SEC. 14.  THE FEDERAL BILL
OF RIGHTS DID NOT, OF COURSE, DIFFERENTIATE BETWEEN RETRIALS AFTER
ACQUITTAL AND RETRIALS AFTER CONVICTION; IT BANNED BOTH. 

FN33  NEW JERSEY V. CIOFFE, 130 N.J.L. 160, 32 A.2D 79 (1943); SERIO
V. UNITED STATES, 203 F.2D 576 (1953); JOLLEY V. UNITED STATES, 232
F.2D 83 (1956); SMITH V. UNITED STATES, 243 F.2D 877 (1957); RIOS V.
UNITED STATES, 256 F.2D 173 (1958). 

FN34  THE NEW YORK TIMES FOR OCTOBER 22, 1958, P. 4, COL. 6, CARRIED
THE FOLLOWING ITEM UNDER THE MOSCOW DATE LINE: 

"A 19-YEAR-OLD 'STILYAG' (ZOOT-SUITER) WAS RE-TRIED AND SENTENCED TO
DEATH FOLLOWING PUBLIC PROTESTS THAT THE ORIGINAL TEN TO TWENTY-FIVE
YEAR TERM IMPOSED FOR KILLING A MILITIAMAN DURING A ROBBERY WAS TOO
LENIENT, THE NEWSPAPER KOMSOMOLSKAYA PRAVDA SAID TODAY. 

"THE CONDEMNED YOUTH WAS VICTOR SHANSHKIN, LEADER OF A GANG OF FOUR
YOUTHS WHO TRIED TO BREAK INTO A MOSCOW STORE LAST MAY, ACCORDING TO
THE NEWSPAPER OF THE YOUNG COMMUNIST ORGANIZATION. 

"HE PUMPED SEVEN BULLETS INTO THE MILITIAMAN, WHO TRIED TO PREVENT
THE ROBBERY. 

"THE FOUR ESCAPED, BUT WERE LATER ARRESTED AND SENTENCED TO PRISON
TERMS RANGING FROM TEN TO TWENTY-FIVE YEARS.  THE SENTENCES AROUSED
WIDESPREAD PUBLIC PROTESTS. 

"AT THE SECOND TRIAL, HELD RECENTLY, SHANSHKIN WAS SENTENCED TO DIE. 
THE OTHER THREE, ALL UNDER 20 YEARS OF AGE, WERE ORDERED TO SERVE
PRISON TERMS RANGING FROM TEN TO TWENTY YEARS." 

MR. JUSTICE BRENNAN, WHOM THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS
JOIN, DISSENTING. 

BARTKUS WAS TRIED AND ACQUITTED IN A FEDERAL DISTRICT COURT OF
ROBBING A FEDERALLY INSURED SAVINGS AND LOAN ASSOCIATION IN CICERO,
ILLINOIS.  HE WAS INDICTED FOR THE SAME ROBBERY BY THE STATE OF
ILLINOIS LESS THAN THREE WEEKS LATER, AND SUBSEQUENTLY CONVICTED AND
SENTENCED TO LIFE IMPRISONMENT.   THE SINGLE ISSUE IN DISPUTE AT BOTH
TRIALS WAS WHETHER BARTKUS WAS THE THIRD PARTICIPANT IN THE ROBBERY
ALONG WITH TWO SELF-CONFESSED PERPETRATORS OF THE CRIME. 

THE GOVERNMENT'S CASE AGAINST BARTKUS ON THE FEDERAL TRIAL RESTED
PRIMARILY UPON THE TESTIMONY OF TWO OF THE ROBBERS, JOSEPH COSENTINO
AND JAMES BRINDIS, WHO CONFESSED THEIR PART IN THE CRIME AND TESTIFIED
THAT BARTKUS WAS THEIR CONFEDERATE.  THE DEFENSE WAS THAT BARTKUS WAS
GETTING A HAIRCUT IN A BARBER SHOP SEVERAL MILES AWAY AT THE TIME THE
ROBBERY WAS COMMITTED.  THE OWNER OF THE BARBER SHOP, HIS SON AND OTHER
WITNESSES PLACED BARTKUS IN THE SHOP AT THE TIME.  THE FEDERAL JURY IN
ACQUITTING BARTKUS APPARENTLY BELIEVED THE ALIBI WITNESSES AND NOT
COSENTINO AND BRINDIS. 

THE FEDERAL AUTHORITIES WERE HIGHLY DISPLEASED WITH THE JURY'S
RESOLUTION OF THE CONFLICTING TESTIMONY, AND THE TRIAL JUDGE SHARPLY
UPBRAIDED THE JURY FOR ITS VERDICT.  SEE SOME OF HIS REMARKS PRINTED IN
UNITED STATES V. VASEN, 222 F.2D 3, 9-10 (DISSENTING OPINION).  THE
FEDERAL AUTHORITIES OBVIOUSLY DECIDED IMMEDIATELY AFTER THE TRIAL TO
MAKE A SECOND TRY AT CONVICTING BARTKUS, AND SINCE THE FEDERAL
COURTHOUSE WAS BARRED TO THEM BY THE FIFTH AMENDMENT, THEY TURNED TO A
STATE PROSECUTION FOR THAT PURPOSE.  IT IS CLEAR THAT FEDERAL OFFICERS
SOLICITED THE STATE INDICTMENT, ARRANGED TO ASSURE THE ATTENDANCE OF
KEY WITNESSES, UNEARTHED ADDITIONAL EVIDENCE TO DISCREDIT BARTKUS AND
ONE OF HIS ALIBI WITNESSES, AND IN GENERAL PREPARED AND GUIDED THE
STATE PROSECUTION.  THUS THE STATE'S ATTORNEY STATED AT THE STATE
TRIAL:  "I AM PARTICULARLY GLAD TO SEE A CASE WHERE THE FEDERAL
AUTHORITIES CAME TO SEE THE STATE'S ATTORNEY."  AND ILLINOIS CONCEDED
WITH COMMENDABLE CANDOR ON THE ORAL ARGUMENT IN THIS COURT "THAT THE
FEDERAL OFFICERS DID INSTIGATE AND GUIDE THIS STATE PROSECUTION" AND
"ACTUALLY PREPARED THIS CASE."  INDEED, THE STATE ARGUED THE CASE ON
THE BASIS THAT THE RECORD SHOWED AS A MATTER OF "FAIR INFERENCE" THAT
THE CASE WAS ONE IN WHICH "FEDERAL OFFICERS BRING TO THE ATTENTION OF
THE STATE PROSECUTING AUTHORITY THE COMMISSION OF AN ACT AND FURNISH
AND PROVIDE HIM WITH EVIDENCE OF DEFENDANT'S GUILT."    I THINK THAT
THE RECORD BEFORE US SHOWS THAT THE EXTENT OF PARTICIPATION OF THE
FEDERAL AUTHORITIES HERE CONSTITUTED THIS STATE PROSECUTION ACTUALLY A
SECOND FEDERAL PROSECUTION OF BARTKUS.  THE FEDERAL JURY ACQUITTED
BARTKUS LATE IN DECEMBER 1953.  EARLY IN JANUARY 1954 THE ASSISTANT
UNITED STATES ATTORNEY WHO PROSECUTED THE FEDERAL CASE SUMMONED
COSENTINO TO HIS OFFICE.  PRESENT ALSO WERE THE FBI AGENT WHO HAD
INVESTIGATED THE ROBBERY AND THE ASSISTANT STATE'S ATTORNEY FOR COOK
COUNTY WHO LATER PROSECUTED THE STATE CASE.  THE ASSISTANT STATE'S
ATTORNEY SAID TO COSENTINO, "LOOK, WE ARE GOING TO GET AN INDICTMENT IN
THE STATE COURT AGAINST BARTKUS, WILL YOU TESTIFY AGAINST HIM?" 
COSENTINO AGREED THAT HE WOULD.  LATER BRINDIS ALSO AGREED TO TESTIFY. 
ALTHOUGH THEY PLEADED GUILTY TO THE FEDERAL ROBBERY CHARGE IN AUGUST
1953, THE FEDERAL DISTRICT COURT POSTPONED THEIR SENTENCING UNTIL AFTER
THEY TESTIFIED AGAINST BARTKUS AT THE STATE TRIAL, WHICH WAS NOT HELD
UNTIL APRIL 1954.  THE RECORD DOES NOT DISCLOSE WHAT SENTENCES WERE
IMPOSED AFTER THEY TESTIFIED AT THE STATE TRIAL OR WHETHER SENTENCES
HAVE YET BEEN IMPOSED.  BOTH COSENTINO AND BRINDIS WERE ALSO RELEASED
ON BAIL PENDING THE STATE TRIAL, BRINDIS ON HIS OWN RECOGNIZANCE. 

IN JANUARY, ALSO, AN FBI AGENT WHO HAD BEEN ACTIVE IN THE FEDERAL
PROSECUTION PURPOSEFULLY SET ABOUT STRENGTHENING THE PROOFS WHICH HAD
NOT SUFFICED TO CONVICT BARTKUS ON THE FEDERAL TRIAL.  AND HE FRANKLY
ADMITTED THAT HE "WAS SECURING IT (INFORMATION) FOR THE FEDERAL
GOVERNMENT," ALTHOUGH WHAT HE GATHERED HAD "GONE TO THE STATE
AUTHORITIES."  THESE JANUARY EFFORTS OF THE AGENT WERE SINGULARLY
SUCCESSFUL AND MAY WELL HAVE TIPPED THE SCALES IN FAVOR OF CONVICTION. 
HE UNCOVERED A NEW WITNESS AGAINST BARTKUS, ONE GRANT PURSEL, WHO HAD
BEEN ENLARGED ON BAIL PENDING HIS SENTENCING ON HIS PLEA OF GUILTY TO
AN INDICTMENT FOR VIOLATION OF THE MANN ACT.  PURSEL TESTIFIED THAT
"ABOUT TWO WEEKS AFTER THE FEDERAL TRIAL, IN THE FIRST PART OF
JANUARY," THE FBI AGENT SOUGHT HIM OUT TO DISCUSS AN ALLEGED
CONVERSATION BETWEEN PURSEL AND BARTKUS DURING SEPTEMBER 1953 WHEN BOTH
WERE IN JAIL AWAITING THEIR RESPECTIVE FEDERAL TRIALS.  PURSEL'S
TESTIMONY AT THE STATE TRIAL, THAT BARTKUS HAD TOLD HIM HE PARTICIPATED
IN THE ROBBERY, WAS OBVIOUSLY VERY DAMAGING.  YET, INDICATIVE OF THE
ATTITUDE OF THE FEDERAL OFFICIALS THAT THIS WAS ACTUALLY A FEDERAL
PROSECUTION, THE FBI AGENT ARRANGED NO INTERVIEW BETWEEN PURSEL AND ANY
STATE AUTHORITY.  THE FIRST TIME THAT PURSEL HAD ANY CONTACT WHATSOEVER
WITH A STATE OFFICIAL CONNECTED WITH THE CASE WAS THE MORNING THAT HE
TESTIFIED.  AND AS IN THE CASE OF COSENTINO AND BRINDIS, PURSEL'S
SENTENCING WAS POSTPONED UNTIL AFTER HE TESTIFIED AGAINST BARTKUS AT
THE STATE TRIAL.  HERE TOO THE RECORD DOES NOT DISCLOSE WHAT SENTENCE
WAS IMPOSED OR WHETHER ANY HAS YET BEEN IMPOSED. 

ALSO WITHIN A MONTH AFTER THE FEDERAL ACQUITTAL THE FBI AGENT SOUGHT
OUT THE OPERATOR OF THE BARBER SHOP WHO HAD PLACED BARTKUS IN HIS SHOP
AT THE TIME OF THE ROBBERY.  THE BARBER TESTIFIED AT BOTH FEDERAL AND
STATE TRIALS THAT BARTKUS ENTERED HIS SHOP BEFORE 4 O'CLOCK, ABOUT
WHICH TIME THE ROBBERY WAS COMMITTED.  THE AGENT TESTIFIED AS A
RUBUTTAL WITNESS FOR THE STATE THAT THE BARBER HAD TOLD HIM IN JANUARY
THAT IT MIGHT HAVE BEEN AFTER 4:30 O'CLOCK WHEN BARTKUS ENTERED THE
SHOP.  AND THE SIGNIFICANCE OF THE FEDERAL PARTICIPATION IN THIS
PROSECUTION IS FURTHER EVIDENCED BY THE ASSISTANT STATE'S ATTORNEY'S
MOTION AT THE BEGINNING OF THE TRIAL, WHICH WAS GRANTED OVER DEFENSE
OBJECTION, TO PERMIT THE FBI AGENT TO REMAIN IN THE COURTROOM
THROUGHOUT THE TRIAL ALTHOUGH OTHER WITNESSES WERE EXCLUDED. 

THE COURT, ALTHOUGH NOT FINDING SUCH TO BE THE CASE HERE, APPARENTLY
ACKNOWLEDGES THAT UNDER CERTAIN CIRCUMSTANCES IT WOULD BE NECESSARY TO
SET ASIDE A STATE CONVICTION BROUGHT ABOUT BY FEDERAL AUTHORITIES TO
AVOID THE PROHIBITION OF THE FIFTH AMENDMENT AGAINST A SECOND FEDERAL
PROSECUTION.  OUR TASK IS TO DETERMINE HOW MUCH THE FEDERAL AUTHORITIES
MUST PARTICIPATE IN A STATE PROSECUTION BEFORE IT SO INFECTS THE
CONVICTION THAT WE MUST SET IT ASIDE.  THE TEST, I SUBMIT, MUST BE
FASHIONED TO SECURE THE FUNDAMENTAL PROTECTION OF THE FIFTH AMENDMENT
"THAT THE  ...  FEDERAL GOVERNMENT WITH ALL ITS RESOURCES AND POWER
SHOULD NOT BE ALLOWED TO MAKE REPEATED ATTEMPTS TO CONVICT AN
INDIVIDUAL FOR AN ALLEGED OFFENSE, THEREBY SUBJECTING HIM TO
EMBARRASSMENT, EXPENSE AND ORDEAL AND COMPELLING HIM TO LIVE IN A
CONTINUING STATE OF ANXIETY AND INSECURITY  ...  ."  GREEN V. UNITED
STATES, 355 U.S. 184, 187.  UNDER ANY TEST BASED UPON THESE PRINCIPLES,
THIS CONVICTION CANNOT STAND.  IN ALLOWING THE USE OF FEDERAL RESOURCES
TO BRING ABOUT THIS SECOND TRY AT BARTKUS, THE COURT DENIES BARTKUS THE
PROTECTION WHICH THE FIFTH AMENDMENT ASSURES HIM.  GIVEN THE FACT THAT
THERE MUST ALWAYS BE STATE OFFICIALS INVOLVED IN A STATE PROSECUTION, I
CANNOT SEE HOW THERE CAN BE MORE COMPLETE FEDERAL PARTICIPATION IN A
STATE PROSECUTION THAN THERE WAS IN THIS CASE.  I SEE NO ESCAPE FROM
THE CONCLUSION THAT THIS PARTICULAR STATE TRIAL WAS IN ACTUALITY A
SECOND FEDERAL PROSECUTION - A SECOND FEDERAL TRY AT BARTKUS IN THE
GUISE OF A STATE PROSECUTION.  IF THIS STATE CONVICTION IS NOT
OVERTURNED, THEN, AS A PRACTICAL MATTER, THERE WILL BE NO RESTRAINTS ON
THE USE OF STATE MACHINERY BY FEDERAL OFFICERS TO BRING WHAT IS IN
EFFECT A SECOND FEDERAL PROSECUTION. 

TO SET ASIDE THIS STATE CONVICTION BECAUSE INFECTED WITH
CONSTITUTIONAL VIOLATIONS BY FEDERAL OFFICERS IMPLIES NO CONDEMNATION
OF THE STATE PROCESSES AS SUCH.  THE CONVICTION IS SET ASIDE NOT
BECAUSE OF ANY INFIRMITIES RESULTING FROM FAULT OF THE STATE BUT
BECAUSE IT IS THE PRODUCT OF UNCONSTITUTIONAL FEDERAL ACTION.  I CANNOT
GRASP THE MERIT OF AN ARGUMENT THAT PROTECTION AGAINST FEDERAL
OPPRESSION IN THE CIRCUMSTANCES SHOWN BY THIS RECORD WOULD DO VIOLENCE
TO THE PRINCIPLES OF FEDERALISM.  OF COURSE, COOPERATION BETWEEN
FEDERAL AND STATE AUTHORITIES IN CRIMINAL LAW ENFORCEMENT IS TO BE
DESIRED AND ENCOURAGED, FOR COOPERATIVE FEDERALISM IN THIS FIELD CAN
INDEED PROFIT THE NATION AND THE STATES IN IMPROVING METHODS FOR
CARRYING OUT THE ENDLESS FIGHT AGAINST CRIME.  BUT THE NORMAL AND
HEALTHY SITUATION CONSISTS OF STATE AND FEDERAL OFFICERS COOPERATING TO
APPREHEND LAWBREAKERS AND PRESENT THE STRONGEST CASE AGAINST THEM AT A
SINGLE TRIAL, BE IT STATE OR FEDERAL.  COOPERATION IN ORDER TO PERMIT
THE FEDERAL GOVERNMENT TO HARASS THE ACCUSED SO AS TO DENY HIM HIS
PROTECTION UNDER THE FIFTH AMENDMENT IS NOT TO BE TOLERATED AS A
LEGITIMATE REQUIREMENT OF FEDERALISM.  THE LESSON OF THE HISTORY WHICH
WROUGHT THE FIFTH AMENDMENT'S PROTECTION HAS TAUGHT US LITTLE IF THAT
SHIELD MAY BE SHATTERED BY RELIANCE UPON THE REQUIREMENTS OF FEDERALISM
AND STATE SOVEREIGNTY TO SUSTAIN THIS TRANSPARENT ATTEMPT OF THE
FEDERAL GOVERNMENT TO HAVE TWO TRIES AT CONVICTING BARTKUS FOR THE SAME
ALLEGED CRIME.  WHAT HAPPENED HERE WAS SIMPLY THAT THE FEDERAL EFFORT
WHICH FAILED IN THE FEDERAL COURTHOUSE WAS RENEWED A SECOND TIME IN THE
STATE COURTHOUSE ACROSS THE STREET.  NOT CONTENT WITH THE FEDERAL
JURY'S RESOLUTION OF CONFLICTING TESTIMONY IN BARTKUS' FAVOR, THE
FEDERAL OFFICERS ENGINEERED THIS SECOND PROSECUTION AND ON THE SECOND
TRY OBTAINED THE DESIRED CONVICTION.  IT IS EXACTLY THIS KIND OF
SUCCESSIVE PROSECUTION BY FEDERAL OFFICERS THAT THE FIFTH AMENDMENT WAS
INTENDED TO PROHIBIT.  THIS COURT HAS DECLARED PRINCIPLES IN CLEARLY
ANALOGOUS SITUATIONS WHICH I THINK SHOULD CONTROL HERE.  IN REA V.
UNITED STATES, 350 U.S. 214, THE COURT HELD THAT AN INJUNCTION SHOULD
ISSUE AGAINST A FEDERAL AGENT'S TRANSFERENCE OF ILLEGALLY OBTAINED
EVIDENCE TO STATE AUTHORITIES FOR USE AS THE BASIS OF A STATE CHARGE. 
IF THE FEDERAL COURTS HAVE POWER TO DEFEAT A STATE PROSECUTION BY FORCE
OF THEIR SUPERVISION OF FEDERAL OFFICERS, SURELY THE FEDERAL COURTS
HAVE POWER TO DEFEAT A STATE PROSECUTION TRANSPARENTLY EMPLOYED BY
FEDERAL AUTHORITIES IN VIOLATION OF THE FIFTH AMENDMENT.  IN KNAPP V.
SCHWEITZER, 357 U.S. 371, 380, WE DECLARED:  "OF COURSE THE FEDERAL
GOVERNMENT MAY NOT TAKE ADVANTAGE OF  ...  THE STATES' AUTONOMY IN
ORDER TO EVADE THE BILL OF RIGHTS."  SEE ALSO FELDMAN V. UNITED STATES,
322 U.S. 487, 494; CF. BYARS V. UNITED STATES, 273 U.S. 28.  THESE
PRINCIPLES REQUIRE, I THINK, THAT WE SET ASIDE THIS STATE CONVICTION. 
..END :





GREEN V. UNITED STATES 355 U.S. 184 


NO. 46.  ARGUED APRIL 25, 1957 - RESTORED TO THE CALENDAR FOR REARGUMENT
JUNE 24, 1957 - REARGUED OCTOBER 15, 1957 - DECIDED DECEMBER 16, 1957 -
98 U.S. APP. D.C. 413, 236 F.2D 708, REVERSED. 


PETITIONER WAS INDICTED AND TRIED IN A FEDERAL COURT FOR FIRST DEGREE
MURDER.  THE JUDGE INSTRUCTED THE JURY THAT IT COULD FIND HIM GUILTY OF
EITHER FIRST DEGREE MURDER OR SECOND DEGREE MURDER.  THE JURY FOUND HIM
GUILTY OF SECOND DEGREE MURDER, AND ITS VERDICT WAS SILENT ON THE
CHARGE OF FIRST DEGREE MURDER.  THE TRIAL JUDGE ACCEPTED THE VERDICT,
ENTERED JUDGMENT, DISMISSED THE JURY AND SENTENCED PETITIONER TO
IMPRISONMENT.  ON APPEAL, HIS CONVICTION WAS REVERSED AND THE CASE WAS
REMANDED FOR A NEW TRIAL.  ON REMAND, PETITIONER WAS TRIED AGAIN FOR
FIRST DEGREE MURDER UNDER THE ORIGINAL INDICTMENT, CONVICTED OF FIRST
DEGREE MURDER AND SENTENCED TO DEATH, NOTWITHSTANDING HIS PLEA OF
FORMER JEOPARDY.  HELD:  PETITIONER'S SECOND TRIAL FOR FIRST DEGREE
MURDER PLACED HIM IN JEOPARDY TWICE FOR THE SAME OFFENSE IN VIOLATION
OF THE FIFTH AMENDMENT, AND THE CONVICTION IS REVERSED.  PP. 185-198. 

(A)  PETITIONER'S JEOPARDY FOR FIRST DEGREE MURDER CAME TO AN END
WHEN THE JURY WAS DISCHARGED AT THE CONCLUSION OF HIS FIRST TRIAL, AND
HE COULD NOT BE RETRIED FOR THAT OFFENSE.  PP. 190-191. 

(B)  BY MAKING A SUCCESSFUL APPEAL FROM HIS IMPROPER CONVICTION OF
SECOND DEGREE MURDER PETITIONER DID NOT WAIVE HIS CONSTITUTIONAL
DEFENSE OF FORMER JEOPARDY TO A SECOND PROSECUTION ON THE FIRST DEGREE
MURDER CHARGE.  PP. 191-193. 

(C)  IN ORDER TO SECURE THE REVERSAL OF AN ERRONEOUS CONVICTION OF
ONE OFFENSE, A DEFENDANT NEED NOT SURRENDER HIS VALID DEFENSE OF FORMER
JEOPARDY ON A DIFFERENT OFFENSE FOR WHICH HE WAS NOT CONVICTED AND
WHICH WAS NOT INVOLVED IN HIS APPEAL.  PP. 193-194. 

(D)  TRONO V. UNITED STATES, 199 U.S. 521, DISTINGUISHED.  PP. 194
198. 

GREEN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
DOUGLAS. 

THIS CASE PRESENTS A SERIOUS QUESTION CONCERNING THE MEANING AND
APPLICATION OF THAT PROVISION OF THE FIFTH AMENDMENT TO THE
CONSTITUTION WHICH DECLARES THAT NO PERSON SHALL: 

"  ...  BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY
OF LIFE OR LIMB  ...  ." 

THE PETITIONER, EVERETT GREEN, WAS INDICTED BY A DISTRICT OF COLUMBIA
GRAND JURY IN TWO COUNTS.  THE FIRST CHARGED THAT HE HAD COMMITTED
ARSON BY MALICIOUSLY SETTING FIRE TO A HOUSE.  (FN1)  THE SECOND
ACCUSED HIM OF CAUSING THE DEATH OF A WOMAN BY THIS ALLEGED ARSON WHICH
IF TRUE AMOUNTED TO MURDER IN THE FIRST DEGREE PUNISHABLE BY DEATH. 
(FN2)  GREEN ENTERED A PLEA OF NOT GUILTY TO BOTH COUNTS AND THE CASE
WAS TRIED BY A JURY.  AFTER EACH SIDE HAD PRESENTED ITS EVIDENCE THE
TRIAL JUDGE INSTRUCTED THE JURY THAT IT COULD FIND GREEN GUILTY OF
ARSON UNDER THE FIRST COUNT AND OF EITHER (1) FIRST DEGREE MURDER OR
(2) SECOND DEGREE MURDER UNDER THE SECOND COUNT.  THE TRIAL JUDGE
TREATED SECOND DEGREE MURDER, WHICH IS DEFINED BY THE DISTRICT CODE AS
THE KILLING OF ANOTHER WITH MALICE AFORETHOUGHT AND IS PUNISHABLE BY
IMPRISONMENT FOR A TERM OF YEARS OR FOR LIFE, (FN3) AS AN OFFENSE
INCLUDED WITHIN THE LANGUAGE CHARGING FIRST DEGREE MURDER IN THE SECOND
COUNT OF THE INDICTMENT. 

THE JURY FOUND GREEN GUILTY OF ARSON AND OF SECOND DEGREE MURDER BUT
DID NOT FIND HIM GUILTY ON THE CHARGE OF MURDER IN THE FIRST DEGREE. 
ITS VERDICT WAS SILENT ON THAT CHARGE.  THE TRIAL JUDGE ACCEPTED THE
VERDICT, ENTERED THE PROPER JUDGMENTS AND DISMISSED THE JURY.  GREEN
WAS SENTENCED TO ONE TO THREE YEARS' IMPRISONMENT FOR ARSON AND FIVE TO
TWENTY YEARS' IMPRISONMENT FOR MURDER IN THE SECOND DEGREE.  HE
APPEALED THE CONVICTION OF SECOND DEGREE MURDER.  THE COURT OF APPEALS
REVERSED THAT CONVICTION BECAUSE IT WAS NOT SUPPORTED BY EVIDENCE AND
REMANDED THE CASE FOR A NEW TRIAL.  95 U.S. APP. D.C. 45, 218 F.2D
856. 

ON REMAND GREEN WAS TRIED AGAIN FOR FIRST DEGREE MURDER UNDER THE
ORIGINAL INDICTMENT.  AT THE OUTSET OF THIS SECOND TRIAL HE RAISED THE
DEFENSE OF FORMER JEOPARDY BUT THE COURT OVERRULED HIS PLEA.  THIS TIME
A NEW JURY FOUND HIM GUILTY OF FIRST DEGREE MURDER AND HE WAS GIVEN THE
MANDATORY DEATH SENTENCE.  AGAIN HE APPEALED.  SITTING EN BANC, THE
COURT OF APPEALS REJECTED HIS DEFENSE OF FORMER JEOPARDY, RELYING ON
TRONO V. UNITED STATES, 199 U.S. 521, AND AFFIRMED THE CONVICTION.  98
U.S. APP. D.C. 413, 236 F.2D 708.  ONE JUDGE CONCURRED IN THE RESULT,
AND THREE JUDGES DISSENTED EXPRESSING THE VIEW THAT GREEN HAD TWICE
BEEN PLACED IN JEOPARDY IN VIOLATION OF THE CONSTITUTION.  WE GRANTED
CERTIORARI, 352 U.S. 915.  ALTHOUGH GREEN RAISES A NUMBER OF OTHER
CONTENTIONS HERE WE FIND IT NECESSARY TO CONSIDER ONLY HIS CLAIM OF
FORMER JEOPARDY. 

THE CONSTITUTIONAL PROHIBITION AGAINST "DOUBLE JEOPARDY" WAS DESIGNED
TO PROTECT AN INDIVIDUAL FROM BEING SUBJECTED TO THE HAZARDS OF TRIAL
AND POSSIBLE CONVICTION MORE THAN ONCE FOR AN ALLEGED OFFENSE.  IN HIS
COMMENTARIES, WHICH GREATLY INFLUENCED THE GENERATION THAT ADOPTED THE
CONSTITUTION, BLACKSTONE RECORDED: 

"  ...  THE PLEA OF AUTERFOITS ACQUIT, OR A FORMER ACQUITTAL, IS
GROUNDED ON THIS UNIVERSAL MAXIM OF THE COMMON LAW OF ENGLAND, THAT NO
MAN IS TO BE BROUGHT INTO JEOPARDY OF HIS LIFE MORE THAN ONCE FOR THE
SAME OFFENCE."  (FN4) 

SUBSTANTIALLY THE SAME VIEW WAS TAKEN BY THIS COURT IN EX PARTE
LANGE, 18 WALL.  163, AT 169: 

"THE COMMON LAW NOT ONLY PROHIBITED A SECOND PUNISHMENT FOR THE SAME
OFFENCE, BUT IT WENT FURTHER AND FORBID A SECOND TRIAL FOR THE SAME
OFFENCE, WHETHER THE ACCUSED HAD SUFFERED PUNISHMENT OR NOT, AND
WHETHER IN THE FORMER TRIAL HE HAD BEEN ACQUITTED OR CONVICTED." 
(FN5) 

THE UNDERLYING IDEA, ONE THAT IS DEEPLY INGRAINED IN AT LEAST THE
ANGLO-AMERICAN SYSTEM OF JURISPRUDENCE, IS THAT THE STATE WITH ALL ITS
RESOURCES AND POWER SHOULD NOT BE ALLOWED TO MAKE REPEATED ATTEMPTS TO
CONVICT AN INDIVIDUAL FOR AN ALLEGED OFFENSE, THEREBY SUBJECTING HIM TO
EMBARRASSMENT, EXPENSE AND ORDEAL AND COMPELLING HIM TO LIVE IN A
CONTINUING STATE OF ANXIETY AND INSECURITY, AS WELL AS ENHANCING THE
POSSIBILITY THAT EVEN THOUGH INNOCENT HE MAY BE FOUND GUILTY. 

IN ACCORDANCE WITH THIS PHILOSOPHY IT HAS LONG BEEN SETTLED UNDER THE
FIFTH AMENDMENT THAT A VERDICT OF ACQUITTAL IS FINAL, ENDING A
DEFENDANT'S JEOPARDY, AND EVEN WHEN "NOT FOLLOWED BY ANY JUDGMENT, IS A
BAR TO A SUBSEQUENT PROSECUTION FOR THE SAME OFFENCE."  UNITED STATES
V. BALL, 163 U.S. 662, 671.  THUS IT IS ONE OF THE ELEMENTAL PRINCIPLES
OF OUR CRIMINAL LAW THAT THE GOVERNMENT CANNOT SECURE A NEW TRIAL BY
MEANS OF AN APPEAL EVEN THOUGH AN ACQUITTAL MAY APPEAR TO BE
ERRONEOUS.   UNITED STATES V. BALL, SUPRA; PETERS V. HOBBY, 349 U.S.
331, 344-345.  CF. KEPNER V. UNITED STATES, 195 U.S. 100; UNITED STATES
V. SANGES, 144 U.S. 310. 

MOREOVER IT IS NOT EVEN ESSENTIAL THAT A VERDICT OF GUILT OR
INNOCENCE BE RETURNED FOR A DEFENDANT TO HAVE ONCE BEEN PLACED IN
JEOPARDY SO AS TO BAR A SECOND TRIAL ON THE SAME CHARGE.  THIS COURT,
AS WELL AS MOST OTHERS, HAS TAKEN THE POSITION THAT A DEFENDANT IS
PLACED IN JEOPARDY ONCE HE IS PUT TO TRIAL BEFORE A JURY SO THAT IF THE
JURY IS DISCHARGED WITHOUT HIS CONSENT HE CANNOT BE TRIED AGAIN.  WADE
V. HUNTER, 336 U.S. 684; KEPNER V. UNITED STATES, 195 U.S. 100, 128. 
IN GENERAL SEE AMERICAN LAW INSTITUTE, ADMINISTRATION OF THE CRIMINAL
LAW:  DOUBLE JEOPARDY 61-72 (1935).  THIS PREVENTS A PROSECUTOR OR
JUDGE FROM SUBJECTING A DEFENDANT TO A SECOND PROSECUTION BY
DISCONTINUING THE TRIAL WHEN IT APPEARS THAT THE JURY MIGHT NOT
CONVICT.  AT THE SAME TIME JEOPARDY IS NOT REGARDED AS HAVING COME TO
AN END SO AS TO BAR A SECOND TRIAL IN THOSE CASES WHERE "UNFORESEEABLE
CIRCUMSTANCES ...  ARISE DURING THE FIRST TRIAL MAKING ITS COMPLETION
IMPOSSIBLE, SUCH AS THE FAILURE OF A JURY TO AGREE ON A VERDICT."  WADE
V. HUNTER, 336 U.S. 684, 688-689. 

AT COMMON LAW A CONVICTED PERSON COULD NOT OBTAIN A NEW TRIAL BY
APPEAL EXCEPT IN CERTAIN NARROW INSTANCES.  (FN6)  AS THIS HARSH RULE
WAS DISCARDED COURTS AND LEGISLATURES PROVIDED THAT IF A DEFENDANT
OBTAINED THE REVERSAL OF A CONVICTION BY HIS OWN APPEAL HE COULD BE
TRIED AGAIN FOR THE SAME OFFENSE.  (FN7)  MOST COURTS REGARDED THE NEW
TRIAL AS A SECOND JEOPARDY BUT JUSTIFIED THIS ON THE GROUND THAT THE
APPELLANT HAD "WAIVED" HIS PLEA OF FORMER JEOPARDY BY ASKING THAT THE
CONVICTION BE SET ASIDE.  (FN8)  OTHER COURTS VIEWED THE SECOND TRIAL
AS CONTINUING THE SAME JEOPARDY WHICH HAD ATTACHED AT THE FIRST TRIAL
BY REASONING THAT JEOPARDY DID NOT COME TO AN END UNTIL THE ACCUSED WAS
ACQUITTED OR HIS CONVICTION BECAME FINAL.  (FN9)  BUT WHATEVER THE
RATIONALIZATION, THIS COURT HAS ALSO HELD THAT A DEFENDANT CAN BE TRIED
A SECOND TIME FOR AN OFFENSE WHEN HIS PRIOR CONVICTION FOR THAT SAME
OFFENSE HAD BEEN SET ASIDE ON APPEAL.  UNITED STATES V. BALL, 163 U.S.
662. 

IN THIS CASE, HOWEVER, WE HAVE A MUCH DIFFERENT QUESTION.  AT GREEN'S
FIRST TRIAL THE JURY WAS AUTHORIZED TO FIND HIM GUILTY OF EITHER FIRST
DEGREE MURDER (KILLING WHILE PERPETRATING A FELONY) OR, ALTERNATIVELY,
OF SECOND DEGREE MURDER (KILLING WITH MALICE AFORETHOUGHT).  (FN10)
THE JURY FOUND HIM GUILTY OF SECOND DEGREE MURDER, BUT ON HIS APPEAL
THAT CONVICTION WAS REVERSED AND THE CASE REMANDED FOR A NEW TRIAL.  AT
THIS NEW TRIAL GREEN WAS TRIED AGAIN, NOT FOR SECOND DEGREE MURDER, BUT
FOR FIRST DEGREE MURDER, EVEN THOUGH THE ORIGINAL JURY HAD REFUSED TO
FIND HIM GUILTY ON THAT CHARGE AND IT WAS IN NO WAY INVOLVED IN HIS
APPEAL.  (FN11)  FOR THE REASONS STATED HEREAFTER, WE CONCLUDE THAT
THIS SECOND TRIAL FOR FIRST DEGREE MURDER PLACED GREEN IN JEOPARDY
TWICE FOR THE SAME OFFENSE IN VIOLATION OF THE CONSTITUTION.  (FN12) 

GREEN WAS IN DIRECT PERIL OF BEING CONVICTED AND PUNISHED FOR FIRST
DEGREE MURDER AT HIS FIRST TRIAL.  HE WAS FORCED TO RUN THE GANTLET
ONCE ON THAT CHARGE AND THE JURY REFUSED TO CONVICT HIM.  WHEN GIVEN
THE CHOICE BETWEEN FINDING HIM GUILTY OF EITHER FIRST OR SECOND DEGREE
MURDER IT CHOSE THE LATTER.  IN THIS SITUATION THE GREAT MAJORITY OF
CASES IN THIS COUNTRY HAVE REGARDED THE JURY'S VERDICT AS AN IMPLICIT
ACQUITTAL ON THE CHARGE OF FIRST DEGREE MURDER.  (FN13)  BUT THE RESULT
IN THIS CASE NEED NOT REST ALONE ON THE ASSUMPTION, WHICH WE BELIEVE
LEGITIMATE, THAT THE JURY FOR ONE REASON OR ANOTHER ACQUITTED GREEN OF
MURDER IN THE FIRST DEGREE.  FOR HERE, THE JURY WAS DISMISSED WITHOUT
RETURNING ANY EXPRESS VERDICT ON THAT CHARGE AND WITHOUT GREEN'S
CONSENT.  YET IT WAS GIVEN A FULL OPPORTUNITY TO RETURN A VERDICT AND
NO EXTRAORDINARY CIRCUMSTANCES APPEARED WHICH PREVENTED IT FROM DOING
SO.  THEREFORE IT SEEMS CLEAR, UNDER ESTABLISHED PRINCIPLES OF FORMER
JEOPARDY, THAT GREEN'S JEOPARDY FOR FIRST DEGREE MURDER CAME TO AN END
WHEN THE JURY WAS DISCHARGED SO THAT HE COULD NOT BE RETRIED FOR THAT
OFFENSE.  WADE V. HUNTER, 336 U.S. 684.  IN BRIEF, WE BELIEVE THIS CASE
CAN BE TREATED NO DIFFERENTLY, FOR PURPOSES OF FORMER JEOPARDY, THAN IF
THE JURY HAD RETURNED A VERDICT WHICH EXPRESSLY READ:  "WE FIND THE
DEFENDANT NOT GUILTY OF MURDER IN THE FIRST DEGREE BUT GUILTY OF MURDER
IN THE SECOND DEGREE." 

AFTER THE ORIGINAL TRIAL, BUT PRIOR TO HIS APPEAL, IT IS INDISPUTABLE
THAT GREEN COULD NOT HAVE BEEN TRIED AGAIN FOR FIRST DEGREE MURDER FOR
THE DEATH RESULTING FROM THE FIRE.  A PLEA OF FORMER JEOPARDY WOULD
HAVE ABSOLUTELY BARRED A NEW PROSECUTION EVEN THOUGH IT MIGHT HAVE BEEN
CONVINCINGLY DEMONSTRATED THAT THE JURY ERRED IN FAILING TO CONVICT HIM
OF THAT OFFENSE.  AND EVEN AFTER APPEALING THE CONVICTION OF SECOND
DEGREE MURDER HE STILL COULD NOT HAVE BEEN TRIED A SECOND TIME FOR
FIRST DEGREE MURDER HAD HIS APPEAL BEEN UNSUCCESSFUL. 

NEVERTHELESS THE GOVERNMENT CONTENDS THAT GREEN "WAIVED" HIS
CONSTITUTIONAL DEFENSE OF FORMER JEOPARDY TO A SECOND PROSECUTION ON
THE FIRST DEGREE MURDER CHARGE BY MAKING A SUCCESSFUL APPEAL OF HIS
IMPROPER CONVICTION OF SECOND DEGREE MURDER.  WE CANNOT ACCEPT THIS
PARADOXICAL CONTENTION.  "WAIVER" IS A VAGUE TERM USED FOR A GREAT
VARIETY OF PURPOSES, GOOD AND BAD, IN THE LAW.  IN ANY NORMAL SENSE,
HOWEVER, IT CONNOTES SOME KIND OF VOLUNTARY KNOWING RELINQUISHMENT OF A
RIGHT.  CF. JOHNSON V. ZERBST, 304 U.S. 458.  WHEN A MAN HAS BEEN
CONVICTED OF SECOND DEGREE MURDER AND GIVEN A LONG TERM OF IMPRISONMENT
IT IS WHOLLY FICTIONAL TO SAY THAT HE "CHOOSES" TO FOREGO HIS
CONSTITUTIONAL DEFENSE OF FORMER JEOPARDY ON A CHARGE OF MURDER IN THE
FIRST DEGREE IN ORDER TO SECURE A REVERSAL OF AN ERRONEOUS CONVICTION
OF THE LESSER OFFENSE.  IN SHORT, HE HAS NO MEANINGFUL CHOICE.  AND AS
MR. JUSTICE HOLMES OBSERVED, WITH REGARD TO THIS SAME MATTER IN KEPNER
V. UNITED STATES, 195 U.S. 100, AT 135:  "USUALLY NO SUCH WAIVER IS
EXPRESSED OR THOUGHT OF.  MOREOVER, IT CANNOT BE IMAGINED THAT THE LAW
WOULD DENY TO A PRISONER THE CORRECTION OF A FATAL ERROR, UNLESS HE
SHOULD WAIVE OTHER RIGHTS SO IMPORTANT AS TO BE SAVED BY AN EXPRESS
CLAUSE IN THE CONSTITUTION OF THE UNITED STATES." 

IT IS TRUE THAT IN KEPNER, A CASE ARISING IN THE PHILIPPINE ISLANDS
UNDER A STATUTORY PROHIBITION AGAINST DOUBLE JEOPARDY, MR. JUSTICE
HOLMES DISSENTED FROM THE COURT'S HOLDING THAT THE GOVERNMENT COULD NOT
APPEAL AN ACQUITTAL IN A CRIMINAL PROSECUTION.  HE ARGUED THAT THERE
WAS ONLY ONE CONTINUING JEOPARDY UNTIL THE "CASE" HAD FINALLY BEEN
SETTLED, APPEAL AND ALL, WITHOUT REGARD TO HOW MANY TIMES THE DEFENDANT
WAS TRIED, BUT THAT VIEW WAS REJECTED BY THE COURT.  THE POSITION TAKEN
BY THE MAJORITY IN KEPNER IS COMPLETELY IN ACCORD WITH THE DEEPLY
ENTRENCHED PRINCIPLE OF OUR CRIMINAL LAW THAT ONCE A PERSON HAS BEEN
ACQUITTED OF AN OFFENSE HE CANNOT BE PROSECUTED AGAIN ON THE SAME
CHARGE.  THIS COURT HAS UNIFORMLY ADHERED TO THAT BASIC PREMISE.  FOR
EXAMPLE, IN UNITED STATES V. BALL, 163 U.S. 662, 671, A UNANIMOUS COURT
HELD: 

"THE VERDICT OF ACQUITTAL WAS FINAL, AND COULD NOT BE REVIEWED, ON
ERROR OR OTHERWISE, WITHOUT PUTTING THE DEFENDANT TWICE IN JEOPARDY,
AND THEREBY VIOLATING THE CONSTITUTION." 

AND SEE PETERS V. HOBBY, 349 U.S. 331, 344-345; UNITED STATES V.
SANGES, 144 U.S. 310. 

USING REASONING WHICH PURPORTS TO BE ANALOGOUS TO THAT EXPRESSED BY
MR. JUSTICE HOLMES IN KEPNER, THE GOVERNMENT ALTERNATIVELY ARGUES THAT
GREEN, BY APPEALING, PROLONGED HIS ORIGINAL JEOPARDY SO THAT WHEN HIS
CONVICTION FOR SECOND DEGREE MURDER WAS REVERSED AND THE CASE REMANDED
HE COULD BE TRIED AGAIN FOR FIRST DEGREE MURDER WITHOUT PLACING HIM IN
NEW JEOPARDY.  WE BELIEVE THIS ARGUMENT IS ALSO UNTENABLE.  WHATEVER
MAY BE SAID FOR THE NOTION OF CONTINUING JEOPARDY WITH REGARD TO AN
OFFENSE WHEN A DEFENDANT HAS BEEN CONVICTED OF THAT OFFENSE AND HAS
SECURED REVERSAL OF THE CONVICTION BY APPEAL, HERE GREEN WAS NOT
CONVICTED OF FIRST DEGREE MURDER AND THAT OFFENSE WAS NOT INVOLVED IN
HIS APPEAL.  IF GREEN HAD ONLY APPEALED HIS CONVICTION OF ARSON AND
THAT CONVICTION HAD BEEN SET ASIDE SURELY NO ONE WOULD CLAIM THAT HE
COULD HAVE BEEN TRIED A SECOND TIME FOR FIRST DEGREE MURDER BY
REASONING THAT HIS INITIAL JEOPARDY ON THAT CHARGE CONTINUED UNTIL
EVERY OFFENSE ALLEGED IN THE INDICTMENT HAD BEEN FINALLY ADJUDICATED. 
REDUCED TO PLAIN TERMS, THE GOVERNMENT CONTENDS THAT IN ORDER TO
SECURE THE REVERSAL OF AN ERRONEOUS CONVICTION OF ONE OFFENSE, A
DEFENDANT MUST SURRENDER HIS VALID DEFENSE OF FORMER JEOPARDY NOT ONLY
ON THAT OFFENSE BUT ALSO ON A DIFFERENT OFFENSE FOR WHICH HE WAS NOT
CONVICTED AND WHICH WAS NOT INVOLVED IN HIS APPEAL.  OR STATED IN THE
TERMS OF THIS CASE, HE MUST BE WILLING TO BARTER HIS CONSTITUTIONAL
PROTECTION AGAINST A SECOND PROSECUTION FOR AN OFFENSE PUNISHABLE BY
DEATH AS THE PRICE OF A SUCCESSFUL APPEAL FROM AN ERRONEOUS CONVICTION
OF ANOTHER OFFENSE FOR WHICH HE HAS BEEN SENTENCED TO FIVE TO TWENTY
YEARS' IMPRISONMENT.  AS THE COURT OF APPEALS SAID IN ITS FIRST OPINION
IN THIS CASE, A DEFENDANT FACED WITH SUCH A "CHOICE" TAKES A "DESPERATE
CHANCE" IN SECURING THE REVERSAL OF THE ERRONEOUS CONVICTION.  THE LAW
SHOULD NOT, AND IN OUR JUDGMENT DOES NOT, PLACE THE DEFENDANT IN SUCH
AN INCREDIBLE DILEMMA.  CONDITIONING AN APPEAL OF ONE OFFENSE ON A
COERCED SURRENDER OF A VALID PLEA OF FORMER JEOPARDY ON ANOTHER OFFENSE
EXACTS A FORFEITURE IN PLAIN CONFLICT WITH THE CONSTITUTIONAL BAR
AGAINST DOUBLE JEOPARDY.  (FN14) 

THE GOVERNMENT ARGUES, HOWEVER, THAT WE SHOULD ACCEPT TRONO V. UNITED
STATES, 199 U.S. 521, AS A CONCLUSIVE PRECEDENT AGAINST GREEN'S CLAIM
OF FORMER JEOPARDY.  (FN15)  THE TRONO CASE AROSE IN THE PHILIPPINE
ISLANDS, SHORTLY AFTER THEY HAD BEEN ANNEXED BY THE UNITED STATES,
UNDER A STATUTORY PROHIBITION AGAINST DOUBLE JEOPARDY.  AT THAT TIME A
SHARPLY DIVIDED COURT TOOK THE VIEW THAT NOT ALL CONSTITUTIONAL
GUARANTEES WERE "APPLICABLE" IN THE INSULAR POSSESSIONS, PARTICULARLY
WHERE THE IMPOSITION OF THESE GUARANTEES WOULD DISRUPT ESTABLISHED
CUSTOMS.  DOWNES V. BIDWELL, 182 U.S. 244.  IN TRONO THE DEFENDANTS HAD
BEEN CHARGED WITH MURDER BUT WERE ACQUITTED BY THE TRIAL COURT WHICH
INSTEAD FOUND THEM GUILTY OF THE LESSER OFFENSE OF ASSAULT.  THEY
APPEALED THE ASSAULT CONVICTION TO THE PHILIPPINE SUPREME COURT.  THAT
COURT, ACTING UNDER PECULIAR LOCAL PROCEDURES MODELED ON PRE-EXISTING
SPANISH PRACTICES, WHICH ALLOWED IT TO REVIEW THE FACTS AND LAW AND TO
SUBSTITUTE ITS FINDINGS FOR THOSE OF THE TRIAL JUDGE, SET ASIDE THEIR
ACQUITTAL, FOUND THEM GUILTY OF MURDER AND INCREASED THEIR SENTENCES. 

ON REVIEW BY THIS COURT, MR. JUSTICE PECKHAM, WRITING FOR HIMSELF AND
THREE OTHER JUSTICES, TOOK THE POSITION THAT BY APPEALING THE
CONVICTION FOR ASSAULT THE DEFENDANTS WAIVED THEIR PLEA OF FORMER
JEOPARDY WITH REGARD TO THE CHARGE OF MURDER.  HE SAID: 

"WE DO NOT AGREE TO THE VIEW THAT THE ACCUSED HAS THE RIGHT TO LIMIT
HIS WAIVER AS TO JEOPARDY, WHEN HE APPEALS FROM A JUDGMENT AGAINST
HIM.  AS THE JUDGMENT STANDS BEFORE HE APPEALS, IT IS A COMPLETE BAR TO
ANY FURTHER PROSECUTION FOR THE OFFENSE SET FORTH IN THE INDICTMENT
...  .  NO POWER CAN WREST FROM HIM THE RIGHT TO SO USE THAT JUDGMENT,
BUT IF HE CHOOSES TO APPEAL FROM IT  ...  HE THEREBY WAIVES, IF
SUCCESSFUL, HIS RIGHT TO AVAIL HIMSELF OF THE FORMER ACQUITTAL OF THE
GREATER OFFENSE  ...  ."  199 U.S., AT 533. 

MR. JUSTICE HOLMES REFUSED TO JOIN THE PECKHAM OPINION BUT CONCURRED
IN THE RESULT.  JUST THE YEAR BEFORE, IN KEPNER V. UNITED STATES, 195
U.S. 100, 135, HE HAD SHARPLY DENOUNCED THE NOTION OF "WAIVER" AS
INDEFENSIBLE.  THERE IS NOTHING WHICH INDICATES THAT HIS VIEWS HAD
CHANGED IN THE MEANTIME.  AS POINTED OUT ABOVE, HE DID DISSENT FROM THE
HOLDING IN KEPNER - THAT THE GOVERNMENT COULD NOT APPEAL AN ACQUITTAL -
ON THE GROUND THAT A NEW TRIAL AFTER AN APPEAL BY THE GOVERNMENT WAS
PART OF A CONTINUING JEOPARDY RATHER THAN A SECOND JEOPARDY.  BUT THAT
CONTENTION HAS BEEN CONSISTENTLY REJECTED BY THIS COURT. 

CHIEF JUSTICE FULLER AND JUSTICES HARLAN, WHITE, AND MCKENNA
DISSENTED IN TRONO.  MR. JUSTICE MCKENNA WROTE A DISSENT WHICH WAS
CONCURRED IN BY JUSTICES WHITE AND HARLAN.  DURING THE COURSE OF THIS
OPINION HE STATED: 

"IT IS, IN EFFECT, HELD THAT BECAUSE THE DEFENDANTS  ...  APPEALED
AND SOUGHT A REVIEW, AS AUTHORIZED BY THE STATUTE, OF THE MINOR OFFENSE
FOR WHICH THEY WERE CONVICTED, THE UNITED STATES WAS GIVEN THE RIGHT TO
TRY THEM FOR THE GREATER OFFENSE FOR WHICH THEY WERE ACQUITTED  ...  .
I THINK THAT THE GUARANTEES OF CONSTITUTIONS AND LAWS SHOULD NOT BE SO
CONSTRUED  ...  .  I SUBMIT THAT THE STATE SEEKS NO CONVICTIONS EXCEPT
IN LEGAL WAYS, AND BECAUSE IT DOES NOT IT AFFORDS MEANS OF REVIEW OF
ERRONEOUS RULINGS AND JUDGMENTS, AND FREELY AFFORDS SUCH MEANS.  IT
DOES NOT CLOG THEM WITH CONDITIONS OR FORFEIT BY THEIR EXERCISE GREAT
AND CONSTITUTIONAL RIGHTS. 

     *         *         *         *         * 

"HERE AND THERE MAY BE FOUND A DECISION WHICH SUPPORTS THE EXPOSITION
OF ONCE IN JEOPARDY EXPRESSED IN THE PECKHAM OPINION.  OPPOSED TO IT IS
THE GENERAL CONSENSUS OF OPINION OF AMERICAN TEXT BOOKS ON CRIMINAL LAW
AND THE OVERWHELMING WEIGHT OF AMERICAN DECIDED CASES."  199 U.S., AT
538-539, 540. 

WE DO NOT BELIEVE THAT TRONO SHOULD BE EXTENDED BEYOND ITS PECULIAR
FACTUAL SETTING TO CONTROL THE PRESENT CASE.  ALL THAT WAS BEFORE THE
COURT IN TRONO WAS A STATUTORY PROVISION AGAINST DOUBLE JEOPARDY
PERTAINING TO THE PHILIPPINE ISLANDS - A TERRITORY JUST RECENTLY
CONQUERED WITH LONG-ESTABLISHED LEGAL PROCEDURES THAT WERE ALIEN TO THE
COMMON LAW.  (FN16)  EVEN THEN IT SEEMS APPARENT THAT A MAJORITY OF THE
COURT WAS UNABLE TO AGREE ON ANY COMMON GROUND FOR THE CONCLUSION THAT
AN APPEAL OF A LESSER OFFENSE DESTROYED A DEFENSE OF FORMER JEOPARDY ON
A GREATER OFFENSE FOR WHICH THE DEFENDANT HAD ALREADY BEEN ACQUITTED. 
AS A MATTER OF FACT, IT APPEARS THAT EACH OF THE RATIONALIZATIONS
ADVANCED TO JUSTIFY THIS RESULT WAS REJECTED BY A MAJORITY OF THE
COURT.  AS MR. JUSTICE HOLMES, WHO CONCURRED IN THE RESULT, EFFECTIVELY
DEMONSTRATED, THE "WAIVER THEORY" IS TOTALLY UNSOUND AND INDEFENSIBLE. 
ON THE OTHER HAND MR. JUSTICE HOLMES' THEORY OF CONTINUING JEOPARDY HAS
NEVER OUTWARDLY BEEN ADHERED TO BY ANY OTHER JUSTICE OF THIS COURT. 
(FN17) 

WE BELIEVE THAT IF EITHER OF THE RATIONALES OFFERED TO SUPPORT THE
TRONO RESULT WERE ADOPTED HERE IT WOULD UNDULY IMPAIR THE
CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY.  THE RIGHT NOT TO
BE PLACED IN JEOPARDY MORE THAN ONCE FOR THE SAME OFFENSE IS A VITAL
SAFEGUARD IN OUR SOCIETY, ONE THAT WAS DEARLY WON AND ONE THAT SHOULD
CONTINUE TO BE HIGHLY VALUED.  IF SUCH GREAT CONSTITUTIONAL PROTECTIONS
ARE GIVEN A NARROW, GRUDGING APPLICATION THEY ARE DEPRIVED OF MUCH OF
THEIR SIGNIFICANCE.  WE DO NOT FEEL THAT TRONO OR ANY OTHER DECISION BY
THIS COURT COMPELS US TO FOREGO THE CONCLUSION THAT THE SECOND TRIAL OF
GREEN FOR FIRST DEGREE MURDER WAS CONTRARY TO BOTH THE LETTER AND
SPIRIT OF THE FIFTH AMENDMENT.  REVERSED. 

FN1  D.C. CODE, 1951, SEC. 22-401. 

FN2  D.C. CODE, 1951, SEC. 22-2401.  "WHOEVER, BEING OF SOUND MEMORY
AND DISCRETION  ...  WITHOUT PURPOSE SO TO DO KILLS ANOTHER IN
PERPETRATING OR IN ATTEMPTING TO PERPETRATE ANY ARSON, AS DEFINED IN

DEGREE SHALL BE DEATH BY ELECTROCUTION." 

FN3  D.C. CODE, 1951, SEC. 22-2403.  "WHOEVER WITH MALICE
AFORETHOUGHT EXCEPT AS PROVIDED IN SEC. 22-2401  ...  KILLS ANOTHER, IS
GUILTY OF MURDER IN THE SECOND DEGREE." 

SEC. 22-2404.  "THE PUNISHMENT OF MURDER IN THE SECOND DEGREE SHALL
BE IMPRISONMENT FOR LIFE, OR FOR NOT LESS THAN TWENTY YEARS." 

FN4  4 BLACKSTONE'S COMMENTARIES 335. 

FN5  AND SEE UNITED STATES V. BALL, 163 U.S. 662-669: 

"THE PROHIBITION IS NOT AGAINST BEING TWICE PUNISHED, BUT AGAINST
BEING TWICE PUT IN JEOPARDY; AND THE ACCUSED, WHETHER CONVICTED OR
ACQUITTED, IS EQUALLY PUT IN JEOPARDY AT THE FIRST TRIAL." 

FN6  SEE 1 STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND, C. X;
UNITED STATES V. GIBERT, 25 FED. CAS. 1287. 

FN7  UNDER ENGLISH LAW THE APPELLATE COURT HAS NO POWER TO ORDER A
NEW TRIAL AFTER ANY APPEAL EXCEPT IN CERTAIN CASES WHERE THE FIRST
TRIAL WAS A COMPLETE "NULLITY," AS FOR EXAMPLE WHEN THE TRIAL COURT WAS
WITHOUT JURISDICTION OVER THE PERSON OR SUBJECT MATTER.  SEE 4 STEPHEN,
COMMENTARIES ON THE LAWS OF ENGLAND (21ST ED. 1950), 284.  THE ENGLISH
APPELLATE COURT DOES HAVE POWER TO SUBSTITUTE A FINDING OF GUILT OF A
LESSER OFFENSE IF THE EVIDENCE WARRANTS, BUT IT CANNOT FIND THE
DEFENDANT GUILTY OF AN OFFENSE FOR WHICH HE WAS ACQUITTED OR INCREASE
HIS SENTENCE.  SEE 10 HALSBURY, LAWS OF ENGLAND (SIMONDS ED. 1955), 539
541, AND THE CASES CITED THERE. 

FN8  SEE, E.G., BREWSTER V. SWOPE, 180 F.2D 984; STATE V. MCCORD, 8
KAN. 232, 12 AM. REP.  469; CROSS V. COMMONWEALTH, 195 VA. 62, 77
S.E.2D 447; SMITH V. STATE, 196 WIS. 102, 219 N.W. 270. 

FN9  SEE, E.G., STATE V. AUS, 105 MONT. 82, 69 P.2D 584.  CF. GRIFFIN
V. ILLINOIS, 351 U.S. 12, 18. 

FN10  IN SUBSTANCE THE SITUATION WAS THE SAME AS THOUGH GREEN HAD
BEEN CHARGED WITH THESE DIFFERENT OFFENSES IN SEPARATE BUT ALTERNATIVE
COUNTS OF THE INDICTMENT.  THE CONSTITUTIONAL ISSUES AT STAKE HERE
SHOULD NOT TURN ON THE FACT THAT BOTH OFFENSES WERE CHARGED TO THE JURY
UNDER ONE COUNT. 

FN11  IT SHOULD BE NOTED THAT GREEN'S CLAIM OF FORMER JEOPARDY IS NOT
BASED ON HIS PREVIOUS CONVICTION FOR SECOND DEGREE MURDER BUT INSTEAD
ON THE ORIGINAL JURY'S REFUSAL TO CONVICT HIM OF FIRST DEGREE MURDER. 

FN12  MANY OF THE STATE COURTS WHICH HAVE CONSIDERED THE PROBLEM HAVE
CONCLUDED THAT UNDER CIRCUMSTANCES SIMILAR TO THOSE OF THIS CASE A
DEFENDANT CANNOT BE TRIED A SECOND TIME FOR FIRST DEGREE MURDER.  OTHER
STATE CASES TAKE A CONTRARY POSITION.  IN GENERAL SEE THE ANNOTATIONS
AT 59 A.L.R. 1160, 22 L.R.A. (N.S.)  959, AND 5 L.R.A. (N.S.)  571.  OF
COURSE, MANY OF THE STATE DECISIONS REST ON LOCAL CONSTITUTIONAL OR
STATUTORY PROVISIONS. 

FN13  SEE CASES COLLECTED IN THE ANNOTATIONS CITED IN N. 12, SUPRA,
AND THE ANNOTATION AT 114 A.L.R. 1406. 

FN14  THE SUGGESTION IS MADE THAT UNDER THE DISTRICT CODE SECOND
DEGREE MURDER IS NOT AN OFFENSE INCLUDED IN A CHARGE OF FIRST DEGREE
MURDER FOR CAUSING A DEATH IN THE COURSE OF PERPETRATING A FELONY
(COMMONLY REFERRED TO AS "FELONY MURDER") BECAUSE IT INVOLVES ELEMENTS
DIFFERENT FROM THOSE NECESSARY TO ESTABLISH THE FELONY MURDER, AND THAT
THEREFORE GREEN COULD NOT LEGALLY HAVE BEEN CONVICTED OF SECOND DEGREE
MURDER UNDER THE INDICTMENT.  WE FAIL TO COMPREHEND HOW THIS SUGGESTION
AIDS THE GOVERNMENT.  IN THE FIRST PLACE, THE DISTRICT OF COLUMBIA
COURT OF APPEALS HAS EXPRESSLY HELD THAT SECOND DEGREE MURDER IS A
LESSER OFFENSE WHICH CAN BE PROVED UNDER A CHARGE OF FELONY MURDER. 
GOODALL V. UNITED STATES, 86 U.S. APP. D.C. 148, 180 F.2D 397; GREEN V.
UNITED STATES, 95 U.S. APP. D.C. 45, 218 F.2D 856.  EVEN MORE
IMPORTANT, GREEN'S PLEA OF FORMER JEOPARDY DOES NOT REST ON HIS
CONVICTION FOR SECOND DEGREE MURDER BUT INSTEAD ON THE FIRST JURY'S
REFUSAL TO FIND HIM GUILTY OF FELONY MURDER. 

IT IS IMMATERIAL WHETHER SECOND DEGREE MURDER IS A LESSER OFFENSE
INCLUDED IN A CHARGE OF FELONY MURDER OR NOT.  THE VITAL THING IS THAT
IT IS A DISTINCT AND DIFFERENT OFFENSE.  IF ANYTHING, THE FACT THAT IT
CANNOT BE CLASSIFIED AS "A LESSER INCLUDED OFFENSE" UNDER THE CHARGE OF
FELONY MURDER BUTTRESSES OUR CONCLUSION THAT GREEN WAS
UNCONSTITUTIONALLY TWICE PLACED IN JEOPARDY.  AMERICAN COURTS HAVE HELD
WITH UNIFORMITY THAT WHERE A DEFENDANT IS CHARGED WITH TWO OFFENSES,
NEITHER OF WHICH IS A LESSER OFFENSE INCLUDED WITHIN THE OTHER, AND HAS
BEEN FOUND GUILTY ON ONE BUT NOT ON THE SECOND HE CANNOT BE TRIED AGAIN
ON THE SECOND EVEN THOUGH HE SECURES REVERSAL OF THE CONVICTION AND
EVEN THOUGH THE TWO OFFENSES ARE RELATED OFFENSES CHARGED IN THE SAME
INDICTMENT.  SEE, E.G., ANNOTATION, 114 A.L.R. 1406. 

FN15  WITH THE EXCEPTION OF TRONO, THE GOVERNMENT APPEARS TO CONCEDE
IN ITS BRIEF, PP. 38-39, THAT THE DOUBLE JEOPARDY PROBLEM RAISED IN
THIS CASE HAS NOT BEEN SQUARELY BEFORE THIS COURT.  PALKO V.
CONNECTICUT, 302 U.S. 319, BRANTLEY V. GEORGIA, 217 U.S. 284, AND KRING
V. MISSOURI, 107 U.S. 221, ARE NOT CONTROLLING HERE SINCE THEY INVOLVED
TRIALS IN STATE COURTS.  STROUD V. UNITED STATES, 251 U.S. 15, IS
CLEARLY DISTINGUISHABLE.  IN THAT CASE A DEFENDANT WAS RETRIED FOR
FIRST DEGREE MURDER AFTER HE HAD SUCCESSFULLY ASKED AN APPELLATE COURT
TO SET ASIDE A PRIOR CONVICTION FOR THAT SAME OFFENSE. 

FN16  IN THE COURSE OF HIS OPINION MR. JUSTICE PECKHAM MADE SOME
GENERAL OBSERVATIONS TO THE EFFECT THAT HE REGARDED THE STATUTORY
PROVISION AS HAVING THE SAME EFFECT AS THE FIFTH AMENDMENT.  THOSE
REMARKS WERE NOT ESSENTIAL TO THE DECISION SO THAT EVEN IF THEY HAD
BEEN ACCEPTED BY THE FULL COURT THEY WOULD NOT BE CONCLUSIVE IN THIS
CASE WHERE THE INTERPRETATION OF THE FIFTH AMENDMENT IS NECESSARILY
DECISIVE.  CF. COHENS V. VIRGINIA, 6 WHEAT.  264, 399; HUMPHREY'S
EXECUTOR V. UNITED STATES, 295 U.S. 602, 626-627. 

FN17  MR. JUSTICE WHITE AND MR. JUSTICE MCKENNA WHO DISSENTED WITH
MR. JUSTICE HOLMES IN KEPNER REFUSED TO AGREE WITH THE COURT IN TRONO. 
IN HIS DISSENT IN THE LATTER CASE MR. JUSTICE MCKENNA ATTRIBUTED HIS
VOTE IN KEPNER TO THE FACT THAT THE PHILIPPINE ISLANDS HAD A SYSTEM OF
JURISPRUDENCE WHICH WAS TOALLY DIFFERENT FROM OURS IN THAT IT PROVIDED
NO TRIAL BY JURY AND TRADITIONALLY HAD PERMITTED APPELLATE COURTS TO
REVIEW BOTH THE LAW AND THE FACTS IN CRIMINAL CASES AND TO SUBSTITUTE
THEIR FINDINGS FOR THOSE MADE BY THE TRIAL JUDGE.  JUSTICE PECKHAM, IN
HIS OPINION, ALSO RECOGNIZED THE PECULIAR NATURE OF THESE PHILIPPINE
PROCEDURES. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON, MR. JUSTICE CLARK
AND MR. JUSTICE HARLAN JOIN, DISSENTING. 

ON THE BASIS OF THE FOLLOWING FACTS THE COURT HAS CONCLUDED THAT
PETITIONER HAS TWICE BEEN PUT IN JEOPARDY OF LIFE IN VIOLATION OF THE
FIFTH AMENDMENT TO THE CONSTITUTION.  (FN1)    PETITIONER WAS TRIED
UNDER AN INDICTMENT ON TWO COUNTS.  THE FIRST COUNT CHARGED ARSON UNDER
D.C. CODE, 1951, SEC. 22-401.  THE SECOND COUNT CHARGED MURDER IN THE
FIRST DEGREE UNDER D.C. CODE, 1951, SEC. 22-2401, IN THAT IN
PERPETRATING THE ARSON PETITIONER HAD CAUSED THE DEATH OF ONE BETTIE
BROWN.   IN SUBMITTING THE CASE TO THE JURY UNDER THE SECOND COUNT, THE
TRIAL COURT INSTRUCTED ON BOTH FIRST AND SECOND DEGREE MURDER.  THE
JURY RETURNED A VERDICT FINDING PETITIONER GUILTY OF ARSON UNDER THE
FIRST COUNT AND OF SECOND DEGREE MURDER UNDER THE SECOND COUNT; THE
VERDICT WAS SILENT ON THE CHARGE OF FIRST DEGREE MURDER.  THE COURT
ENTERED JUDGMENT ON THE VERDICT, AND SENTENCED PETITIONER TO TERMS OF
IMPRISONMENT OF ONE TO THREE YEARS ON THE FIRST COUNT OF THE INDICTMENT
AND FIVE TO TWENTY YEARS ON THE SECOND COUNT. 

PETITIONER APPEALED HIS CONVICTION OF SECOND DEGREE MURDER,
CONTENDING THAT THERE WAS NO EVIDENCE TO SUPPORT A VERDICT FOR THAT
OFFENSE.  THE COURT OF APPEALS SUSTAINED THIS CLAIM.  IT REVERSED THE
CONVICTION AND ORDERED A NEW TRIAL ON THE GROUND THAT, SINCE THERE WAS
NO BASIS IN THE EVIDENCE FOR FINDING PETITIONER GUILTY OF MURDER IN THE
SECOND DEGREE, IT WAS ERROR TO INSTRUCT THE JURY ON THAT ISSUE.  95
U.S. APP. D.C. 45, 218 F.2D 856.  (FN2)  PETITIONER WAS RETRIED ON THE
SECOND COUNT OF THE INDICTMENT, CONVICTED OF FIRST DEGREE MURDER, AND
SENTENCED TO DEATH.  THE COURT OF APPEALS, THE NINE JUDGES SITTING EN
BANC, AFFIREMD THIS CONVICTION, REJECTING PETITIONER'S CONTENTION THAT
HE HAD BEEN PUT TWICE IN JEOPARDY OF HIS LIFE IN VIOLATION OF THE
FEDERAL CONSTITUTION, 98 U.S. APP.  D.C. 413, 236 F.2D 708, CHIEF JUDGE
EDGERTON AND JUDGES BAZELON AND FAHY DISSENTING. 

SINCE THE PROHIBITION IN THE CONSTITUTION AGAINST DOUBLE JEOPARDY IS
DERIVED FROM HISTORY, ITS SIGNIFICANCE AND SCOPE MUST BE DETERMINED,
"NOT SIMPLY BY TAKING THE WORDS AND A DICTIONARY, BUT BY CONSIDERING
ITS  ...  ORIGIN AND THE LINE OF ITS  ...  GROWTH."  GOMPERS V. UNITED
STATES, 233 U.S. 604, 610. 

THE ORIGIN OF THIS CONSTITUTIONAL PROTECTION IS FOUND IN THE COMMON
LAW PLEAS OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT.  IN VAUX'S CASE, 4
CO. REP. 44A, 45A, IT WAS ACCEPTED AS ESTABLISHED THAT "THE LIFE OF A
MAN SHALL NOT BE TWICE PUT IN JEOPARDY FOR ONE AND THE SAME OFFENCE,
AND THAT IS THE REASON AND CAUSE THAT AUTERFOITS ACQUITTED OR CONVICTED
OF THE SAME OFFENCE IS A GOOD PLEA  ...  ."  LIKEWISE BLACKSTONE STATED
THAT "THE PLEA OF AUTERFOITS ACQUIT, OR A FORMER ACQUITTAL, IS GROUNDED
ON THIS UNIVERSAL MAXIM OF THE COMMON LAW OF ENGLAND, THAT NO MAN IS TO
BE BROUGHT INTO JEOPARDY OF HIS LIFE, MORE THAN ONCE, FOR THE SAME
OFFENCE.  AND HENCE IT IS ALLOWED AS A CONSEQUENCE, THAT WHEN A MAN IS
ONCE FAIRLY FOUND NOT GUILTY UPON ANY INDICTMENT, OR OTHER PROSECUTION,
BEFORE ANY COURT HAVING COMPETENT JURISDICTION OF THE OFFENCE, HE MAY
PLEAD SUCH ACQUITTAL IN BAR OF ANY SUBSEQUENT ACCUSATION FOR THE SAME
CRIME."  4 BL. COMM. 335.  TO TRY AGAIN ONE WHO HAD BEEN PREVIOUSLY
CONVICTED OR ACQUITTED OF THE SAME OFFENSE WAS "ABHORRENT TO THE LAW OF
ENGLAND."  REGINA V. TANCOCK, 13 COX C.C. 217, 220; SEE THE KING V.
EMDEN, 9 EAST 437, 445-447. 

A PRINCIPLE SO DEEPLY ROOTED IN THE LAW OF ENGLAND, AS AN
INDISPENSABLE REQUIREMENT OF A CIVILIZED CRIMINAL PROCEDURE, WAS
INEVITABLY PART OF THE LEGAL TRADITION OF THE ENGLISH COLONISTS IN
AMERICA.  THE MASSACHUSETTS BODY OF LIBERTIES OF 1641, AN EARLY
COMPILATION OF PRINCIPLES DRAWN FROM THE STATUTES AND COMMON LAW OF
ENGLAND, DECLARED THAT, "NO MAN SHALL BE TWISE SENTENCED BY CIVILL
JUSTICE FOR ONE AND THE SAME CRIME, OFFENCE, OR TRESPASSE," AND THAT
"EVERIE ACTION BETWEENE PARTIE AND PARTIE, AND PROCEEDINGS AGAINST
DELINQUENTS IN CRIMINALL CAUSES SHALL BE BRIEFLY AND DESTINCTLY ENTERED
ON THE ROLLES OF EVERY COURT BY THE RECORDER THEREOF.  THAT SUCH
ACTIONS BE NOT AFTERWARDS BROUGHT AGAINE TO THE VEXATION OF ANY MAN." 
COLONIAL LAWS OF MASSACHUSETTS 43, 47. 

THUS THE FIRST CONGRESS, WHICH PROPOSED THE BILL OF RIGHTS, CAME TO
ITS TASK WITH A TRADITION AGAINST DOUBLE JEOPARDY FOUNDED BOTH ON
ANCIENT PRECEDENTS IN THE ENGLISH LAW AND ON LEGISLATION THAT HAD GROWN
OUT OF COLONIAL EXPERIENCE AND NECESSITIES.  THE NEED FOR THE
PRINCIPLE'S GENERAL PROTECTION WAS UNDISPUTED, THOUGH ITS SCOPE WAS NOT
CLEARLY DEFINED.  FEAR OF THE POWER OF THE NEWLY ESTABLISHED FEDERAL
GOVERNMENT REQUIRED "AN EXPLICIT AVOWAL IN THE CONSTITUTION  ...  OF
SOME OF THE PLAINEST AND BEST ESTABLISHED PRINCIPLES IN RELATION TO THE
RIGHTS OF THE CITIZENS, AND THE RULES OF THE COMMON LAW."  PEOPLE V.
GOODWIN, 18 JOHNS.  (N.Y.)  187, 202.  ALTHOUGH MANY STATES IN
RATIFYING THE CONSTITUTION HAD PROPOSED AMENDMENTS CONSIDERED
INDISPENSABLE TO SECURE THE RIGHTS OF THE CITIZEN AGAINST THE FEDERAL
GOVERNMENT, NEW YORK ALONE PROPOSED A PROHIBITION AGAINST DOUBLE
JEOPARDY.  THIS IS NOT SURPRISING IN VIEW OF THE FACT THAT ONLY IN NEW
HAMPSHIRE HAD THE COMMON-LAW PRINCIPLE BEEN EMBODIED IN A
CONSTITUTIONAL PROVISION.  2 POORE, FEDERAL AND STATE CONSTITUTIONS,
COLONIAL CHARTERS AND OTHER ORGANIC LAWS (2D ED.), 1282.  THE BILL OF
RIGHTS ADOPTED BY THE NEW YORK CONVENTION, AND TRANSMITTED TO CONGRESS
WITH ITS RATIFICATION OF THE CONSTITUTION, INCLUDED A DECLARATION THAT,
"NO PERSON OUGHT TO BE PUT TWICE IN JEOPARDY OF LIFE OR LIMB FOR ONE
AND THE SAME OFFENCE, NOR, UNLESS IN CASE OF IMPEACHMENT, BE PUNISHED
MORE THAN ONCE FOR THE SAME OFFENCE."  DOCUMENTS ILLUSTRATIVE OF THE
FORMATION OF THE UNION, H.R. DOC. NO. 398, 69TH CONG., 1ST SESS. 1035. 
THIS DECLARATION WAS DOUBTLESS BEFORE MADISON WHEN HE DRAFTED THE
CONSTITUTIONAL AMENDMENTS TO BE PROPOSED TO THE STATES. 

THE TERMS IN WHICH MADISON INTRODUCED INTO THE HOUSE WHAT BECAME THE
SPECIFIC PROVISION THAT IS OUR PRESENT CONCERN WERE THESE:  "NO PERSON
SHALL BE SUBJECT, EXCEPT IN CASES OF IMPEACHMENT, TO MORE THAN ONE
PUNISHMENT OR ONE TRIAL FOR THE SAME OFFENCE  ...  ."  1 ANNALS OF
CONG. 434.  DEBATE ON THIS PROVISION IN THE COMMITTEE OF THE WHOLE
EVIDENCED A CONCERN THAT THE LANGUAGE SHOULD EXPRESS WHAT THE MEMBERS
UNDERSTOOD TO BE THE ESTABLISHED COMMON-LAW PRINCIPLE.  THERE WAS FEAR
THAT, AS PROPOSED BY MADISON, IT MIGHT BE TAKEN TO PROHIBIT A SECOND
TRIAL EVEN WHEN SOUGHT BY A DEFENDANT WHO HAD BEEN CONVICTED. 
REPRESENTATIVE BENSON OF NEW YORK OBJECTED TO THE PROVISION BECAUSE HE
PRESUMED IT WAS MEANT TO EXPRESS THE ESTABLISHED PRINCIPLE "THAT NO
MAN'S LIFE SHOULD BE MORE THAN ONCE PUT IN JEOPARDY FOR THE SAME
OFFENCE; YET IT WAS WELL KNOWN, THAT THEY WERE ENTITLED TO MORE THAN
ONE TRIAL."  1 ANNALS OF CONG. 753.  OTHERS WHO SPOKE AGREED THAT
ALTHOUGH OF COURSE THERE COULD BE NO SECOND TRIAL FOLLOWING AN
ACQUITTAL, THE PROHIBITION SHOULD NOT EXTEND TO A SECOND TRIAL WHEN A
CONVICTION HAD BEEN SET ASIDE.  THE PROVISION AS AMENDED BY THE SENATE,
S.J., 1ST CONG., 1ST SESS. 77, AND EVENTUALLY RATIFIED AS PART OF THE
FIFTH AMENDMENT TO THE CONSTITUTION, WAS SUBSTANTIALLY IN THE LANGUAGE
USED BY REPRESENTATIVE BENSON TO EXPRESS HIS UNDERSTANDING OF THE
COMMON LAW. 

THE QUESTION THAT HAD CONCERNED THE HOUSE IN DEBATING MADISON'S
PROPOSAL, THE RELATION BETWEEN THE PROHIBITION AGAINST DOUBLE JEOPARDY
AND THE POWER TO ORDER A NEW TRIAL FOLLOWING CONVICTION, WAS CONSIDERED
AT LENGTH BY MR. JUSTICE STORY, ON CIRCUIT, IN UNITED STATES V. GIBERT,
25 FED. CAS. 1287, 1294-1303 (1834).  THE DEFENDANTS IN THAT CASE HAD
BEEN FOUND GUILTY OF ROBBERY ON THE HIGH SEAS, A CAPITAL OFFENSE, AND
MOVED FOR A NEW TRIAL.  MR. JUSTICE STORY, AFTER FULL CONSIDERATION OF
THE ENGLISH AND AMERICAN AUTHORITIES, CONCLUDED THAT THE COURT HAD NO
POWER TO GRANT A NEW TRIAL WHEN THE FIRST TRIAL HAD BEEN DULY HAD ON A
VALID INDICTMENT BEFORE A COURT OF COMPETENT JURISDICTION.  ACCORDING
TO HIS VIEW, THE PROHIBITION AGAINST DOUBLE JEOPARDY APPLIED EQUALLY
WHETHER THE DEFENDANT HAD BEEN ACQUITTED OR CONVICTED, AND THERE WAS NO
EXCEPTION FOR A CASE WHERE THE NEW TRIAL WAS SOUGHT BY THE DEFENDANT
FOR HIS OWN BENEFIT.  EARLIER, MR. JUSTICE STORY HAD HIMSELF TAKEN A
NON-LITERAL VIEW OF THE CONSTITUTIONAL PROVISION IN UNITED STATES V.
PEREZ, 9 WHEAT.  579, WHERE, WRITING FOR THE COURT, HE FOUND THAT
DISCHARGE OF A JURY THAT HAD FAILED TO AGREE WAS NO BAR TO A SECOND
TRIAL.  SEE ALSO 3 STORY, COMMENTARIES ON THE CONSTITUTION (1833), 659
660. 

STORY'S CONCLUSION THAT ENGLISH LAW PROHIBITED, EXCEPT IN RARE
INSTANCES, GRANTING A NEW TRIAL AFTER CONVICTION OF A FELONY WAS
UNDOUBTEDLY CORRECT, SEE THE KING V. MAWBEY, 6 T.R. 619, 638, AND ON
OCCASION THIS RESULT HAS BEEN EXPRESSLY MADE TO DEPEND ON THE MAXIM
PROHIBITING DOUBLE JEOPARDY.  THE QUEEN V. MURPHY, 2 L.R.P.C. 535, 547
548; SEE THE ATTORNEY-GENERAL V. BERTRAND, 1 L.R.P.C. 520, 531-534; BUT
SEE THE QUEEN V. SCAIFE, 17 Q.B. 238.  TO THIS DAY THE COURT OF
CRIMINAL APPEALS HAS ORDINARILY NO POWER TO ORDER A NEW TRIAL EVEN
AFTER QUASHING A CONVICTION ON APPEAL BY THE DEFENDANT, CRIMINAL APPEAL
ACT, 7 EDW.  VII, C. 23, S. 4(2), AND REPEATED EFFORTS TO SECURE THIS
POWER FOR THE COURT HAVE MET WITH THE ARGUMENT THAT A NEW TRIAL WOULD,
AT LEAST IN SPIRIT, OFFEND THE PRINCIPLE THAT A DEFENDANT MAY NOT BE
PUT TWICE IN JEOPARDY FOR THE SAME OFFENSE.  SEE 176 H.L. DEB.  (5TH
SER.  1952) 759-763. 

THE OLD PRACTICE OF THE ENGLISH COURTS, AND THE POSITION TAKEN BY MR.
JUSTICE STORY, HOWEVER, WAS GENERALLY REJECTED IN THE UNITED STATES. 
THE POWER TO GRANT A NEW TRIAL IN THE MOST SERIOUS CASES APPEARS TO
HAVE BEEN EXERCISED BY MANY AMERICAN COURTS FROM AN EARLY DATE IN SPITE
OF PROVISIONS AGAINST DOUBLE JEOPARDY.  UNITED STATES V. FRIES, 3
DALL.  515 (TREASON); SEE PEOPLE V. MORRISON, 1 PARKER'S CRIM. REP.
(N.Y.)  625, 626-643 (RAPE).  IN UNITED STATES V. KEEN, 26 FED. CAS.
686, 687-690, A DECISION RENDERED ONLY FIVE YEARS AFTER UNITED STATES
V. GIBERT, SUPRA, MR. JUSTICE MCLEAN, ON CIRCUIT, VIGOROUSLY REJECTED
THE VIEW THAT THE CONSTITUTIONAL PROVISION PROHIBITED A NEW TRIAL ON
THE DEFENDANT'S MOTION AFTER A CONVICTION, OR THAT IT "GUARANTEES TO
HIM THE RIGHT OF BEING HUNG, TO PROTECT HIM FROM THE DANGER OF A SECOND
TRIAL."  SEE 26 FED. CAS., AT 690.  OTHER FEDERAL COURTS THAT HAD
OCCASION TO CONSIDER THE QUESTION ALSO REJECTED MR. JUSTICE STORY'S
POSITION, SEE UNITED STATES V. WILLIAMS, 28 FED. CAS. 636, 641; UNITED
STATES V. HARDING, 26 FED. CAS. 131, 136-138, AND STATEMENTS BY THIS
COURT CAST SERIOUS DOUBT ON ITS VALIDITY.  SEE EX PARTE LANGE, 18
WALL.  163, 173-174, AND MR. JUSTICE CLIFFORD DISSENTING AT 201-204. 
IN HOPT V. UTAH, 104 U.S. 631, 110 U.S. 574, 114 U.S. 488, 120 U.S.
430, THE DEFENDANT WAS IN FACT RETRIED THREE TIMES FOLLOWING REVERSALS
OF HIS CONVICTIONS. 

FINALLY, UNITED STATES V. BALL, 163 U.S. 662-671, EXPRESSLY REJECTED
THE VIEW THAT THE DOUBLE JEOPARDY PROVISION PREVENTED A SECOND TRIAL
WHEN A CONVICTION HAD BEEN SET ASIDE.  TWO OF THE DEFENDANTS IN THE
CASE HAD BEEN CONVICTED OF MURDER, AND ON WRIT OF ERROR THE JUDGMENTS
WERE REVERSED WITH DIRECTIONS TO QUASH THE INDICTMENT.  THE SAME
DEFENDANTS WERE THEN CONVICTED ON A NEW INDICTMENT.  IN AFFIRMING THESE
CONVICTIONS THE COURT SAID, "IT IS QUITE CLEAR THAT A DEFENDANT, WHO
PROCURES A JUDGMENT AGAINST HIM UPON AN INDICTMENT TO BE SET ASIDE, MAY
BE TRIED ANEW UPON THE SAME INDICTMENT, OR UPON ANOTHER INDICTMENT, FOR
THE SAME OFFENCE OF WHICH HE HAD BEEN CONVICTED."  163 U.S., AT 672. 
ON A LITERAL READING OF THE CONSTITUTIONAL PROVISION, WITH AN EYE
EXCLUSIVELY TO THE INTERESTS OF THE DEFENDANTS, THEY HAD BEEN "ONCE IN
JEOPARDY," AND WERE ENTITLED TO THE BENEFIT OF A REVERSAL OF THEIR
CONVICTIONS WITHOUT THE HAZARD OF A NEW TRIAL.  THE COURT RECOGNIZED,
HOWEVER, THAT SUCH A WOODEN INTERPRETATION WOULD DISTORT THE PURPOSES
OF THE CONSTITUTIONAL PROVISION TO THE PREJUDICE OF SOCIETY'S
LEGITIMATE INTEREST IN CONVICTING THE GUILTY AS MUCH AS, IN UNITED
STATES V. GIBERT, THEY HAD BEEN DISTORTED TO THE PREJUDICE OF THE
DEFENDANTS.  SEE ALSO MURPHY V. MASSACHUSETTS, 177 U.S. 155, 158-160. 

THE PRECISE QUESTION NOW HERE FIRST CAME BEFORE A FEDERAL COURT IN
UNITED STATES V. HARDING, 26 FED. CAS. 131.  THERE THREE DEFENDANTS HAD
BEEN JOINTLY INDICTED AND TRIED FOR MURDER.  ONE WAS CONVICTED OF
MURDER AND TWO OF MANSLAUGHTER, AND ALL MOVED FOR A NEW TRIAL.  A NEW
TRIAL WAS ORDERED FOR THE DEFENDANT CONVICTED OF MURDER, AND AS TO THE
OTHER TWO DEFENDANTS THE CASE WAS CONTINUED TO ALLOW THEM TO DECIDE
WHETHER THEY WOULD TAKE A NEW TRIAL OR ABIDE BY THEIR CONVICTIONS.  MR.
JUSTICE GRIER WARNED THESE DEFENDANTS: 

"YOU OUGHT CLEARLY TO UNDERSTAND AND WEIGH WELL THE POSITION IN WHICH
YOU NOW STAND.  YOU HAVE BEEN ONCE TRIED AND ACQUITTED OF THE HIGHER
GRADE OF OFFENCE CHARGED AGAINST YOU IN THIS INDICTMENT, THE PENALTY
AFFIXED TO WHICH IS DEATH; BUT  ...  YOU HAVE ESCAPED  ...  .  BUT LET
ME NOW SOLEMNLY WARN YOU TO CONSIDER WELL THE CHOICE YOU SHALL MAKE. 
ANOTHER JURY INSTEAD OF ACQUITTING YOU ALTOGETHER, MAY FIND YOU GUILTY
OF THE WHOLE INDICTMENT, AND THUS YOUR LIVES MAY BECOME FORFEIT TO THE
LAW."  26 FED. CAS., AT 138. 

IN THUS ASSUMING THAT THE DEFENDANTS COULD BE RETRIED FOR THE GREATER
OFFENSE OF MURDER WITHOUT VIOLATING THE PROHIBITION AGAINST DOUBLE
JEOPARDY, MR. JUSTICE GRIER EVIDENTLY DREW UPON A FAMILIAR BACKGROUND
AND WHAT HE TOOK TO BE ESTABLISHED PRACTICE IN THE FEDERAL COURTS.  TO
ONE VERSED IN THESE TRADITIONS, THE CHOICE TO WHICH THE DEFENDANTS WERE
PUT IN ABIDING BY THEIR CONVICTIONS OR OBTAINING A NEW TRIAL, ON WHICH
THE ENTIRE QUESTION OF THEIR GUILT WOULD BE OPEN TO RE-EXAMINATION,
SEEMED LEGALLY SPEAKING A MATTER OF COURSE. 

NOT UNTIL TRONO V. UNITED STATES, 199 U.S. 521 (1905), MORE THAN
FIFTY YEARS AFTER THE HARDING CASE, DID THE QUESTION THAT HAD THERE
BEEN PASSED UPON BY MR. JUSTICE GRIER FIRST COME BEFORE THIS COURT. 
TRONO V. UNITED STATES CAME HERE FROM THE PHILIPPINE ISLANDS.  THE
PLAINTIFFS IN ERROR HAD BEEN PROCEEDED AGAINST IN A COURT OF FIRST
INSTANCE ON A COMPLAINT ACCUSING THEM OF MURDER IN THE FIRST DEGREE. 
THEY WERE ACQUITTED OF THIS CHARGE, BUT CONVICTED OF THE INCLUDED
OFFENSE OF ASSAULT.   THEY APPEALED TO THE SUPREME COURT OF THE
PHILIPPINES, AND THAT COURT, EXERCISING A JURISDICTION SIMILAR TO THAT
CONFERRED BY SPANISH LAW ON THE FORMER AUDIENCIA TO REVIEW THE WHOLE
CASE BOTH ON THE FACTS AND THE LAW, REVERSED THE JUDGMENT OF THE COURT
OF FIRST INSTANCE, CONVICTED THE PLAINTIFFS IN ERROR OF THE CRIME OF
"HOMICIDE," OR MURDER IN THE SECOND DEGREE, AND INCREASED THE
PUNISHMENT IMPOSED BY THE COURT OF FIRST INSTANCE.  THE PLAINTIFFS IN
ERROR THEN SOUGHT REVIEW BY THIS COURT, CLAIMING THAT THE ACTION OF THE
SUPREME COURT OF THE PHILIPPINES HAD PLACED THEM TWICE IN JEOPARDY IN
CONTRAVENTION OF THE DECLARATION OF RIGHTS CONTAINED IN SEC. 5 OF THE
ACT OF JULY 1, 1902, FOR THE GOVERNMENT OF THE PHILIPPINES.  THE
PROVISION IN THE STATUTE RELIED ON BY THE PLAINTIFFS IN ERROR DECLARED
THAT, "NO PERSON FOR THE SAME OFFENSE SHALL BE TWICE PUT IN JEOPARDY OF
PUNISHMENT  ...  ."  32 STAT. 692.  THIS LANGUAGE, IT WILL BE NOTED, IS
SUBSTANTIALLY IDENTICAL WITH THAT IN THE FIFTH AMENDMENT TO THE
CONSTITUTION, UPON WHICH PETITIONER IN THE PRESENT CASE RELIES.  ITS
LEGAL RELATION TO THE FIFTH AMENDMENT CALLS FOR LATER CONSIDERATION. 

THIS COURT AFFIRMED THE JUDGMENT OF THE SUPREME COURT OF THE
PHILIPPINES, HOLDING THAT SINCE THE PLAINTIFFS IN ERROR HAD APPEALED
THEIR CONVICTIONS OF THE LOWER OFFENSE IN ORDER TO SECURE A REVERSAL,
THERE WAS NO BAR TO CONVICTING THEM OF THE HIGHER OFFENSE IN
PROCEEDINGS IN THE APPELLATE COURT THAT WERE TANTAMOUNT TO A NEW
TRIAL.  AFTER CANVASSING STATE AND FEDERAL PRECEDENTS, MR. JUSTICE
PECKHAM CONCLUDED THAT, "THE BETTER DOCTRINE IS THAT WHICH DOES NOT
LIMIT THE COURT OR JURY, UPON A NEW TRIAL, TO A CONSIDERATION OF THE
QUESTION OF GUILT OF THE LOWER OFFENSE OF WHICH THE ACCUSED WAS
CONVICTED ON THE FIRST TRIAL, BUT THAT THE REVERSAL OF THE JUDGMENT OF
CONVICTION OPENS UP THE WHOLE CONTROVERSY AND ACTS UPON THE ORIGINAL
JUDGMENT AS IF IT HAD NEVER BEEN."  199 U.S., AT 533.  IT WAS POINTED
OUT THAT IN PERMITTING RETRIAL FOR THE GREATER OFFENSE THE COURT ONLY
APPLIED THE PRINCIPLE LAID DOWN IN UNITED STATES V. BALL, SUPRA, AND
THAT THE RESULT WAS JUSTIFIED NOT ONLY ON THE THEORY THAT THE ACCUSED
HAD "WAIVED" THEIR RIGHT NOT TO BE RETRIED, BUT ALSO ON THE GROUND
THAT, "THE CONSTITUTIONAL PROVISION WAS REALLY NEVER INTENDED TO, AND,
PROPERLY CONSTRUED, DOES NOT COVER, THE CASE OF A JUDGMENT UNDER THESE
CIRCUMSTANCES, WHICH HAS BEEN ANNULLED BY THE COURT AT THE REQUEST OF
THE ACCUSED  ...  ."  199 U.S., AT 534. 

THE COURT IN TRONO LEFT NO DOUBT THAT ITS DECISION DID NOT TURN ON
ANY SURVIVING PECULIARITIES OF SPANISH PROCEDURE, OR ON THE FACT THAT
THE PLAINTIFFS IN ERROR RELIED ON A STATUTORY PROVISION RATHER THAN ON
THE FIFTH AMENDMENT ITSELF.  "WE MAY REGARD THE QUESTION AS THUS
PRESENTED," STATED MR. JUSTICE PECKHAM, "AS THE SAME AS IF IT AROSE IN
ONE OF THE FEDERAL COURTS IN THIS COUNTRY, WHERE, UPON AN INDICTMENT
FOR A GREATER OFFENSE, THE JURY HAD FOUND THE ACCUSED NOT GUILTY OF
THAT OFFENSE, BUT GUILTY OF A LOWER ONE WHICH WAS INCLUDED IN IT, AND
UPON AN APPEAL FROM THAT JUDGMENT BY THE ACCUSED A NEW TRIAL HAD BEEN
GRANTED BY THE APPELLATE COURT, AND THE QUESTION WAS WHETHER, UPON THE
NEW TRIAL ACCORDED, THE ACCUSED COULD BE AGAIN TRIED FOR THE GREATER
OFFENSE  ...  ."  199 U.S., AT 530.  THE DISSENTERS DID NOT DISPUTE
THIS VIEW OF THE CASE, BUT ON THE CONTRARY WERE CONCERNED WITH THE
COURT'S HOLDING PRECISELY BECAUSE OF ITS CONSTITUTIONAL IMPLICATIONS. 
MR. JUSTICE HARLAN ADHERED TO THE VIEW HE HAD TAKEN IN EARLIER CASES
THAT THE BILL OF RIGHTS APPLIED TO THE ISLANDS, AND MR. JUSTICE MCKENNA
IN THE PRINCIPAL DISSENT OBSERVED THAT, "LET IT BE REMEMBERED THAT WE
ARE DEALING WITH A GREAT RIGHT, I MAY EVEN SAY A CONSTITUTIONAL RIGHT,
FOR THE OPINION OF THE COURT DISCUSSES THE CASE AS THOUGH IT WERE FROM
A CIRCUIT COURT OF THE UNITED STATES."  199 U.S., AT 539. 

THE SCOPE AND SIGNIFICANCE OF THE TRONO CASE IS UNDERSCORED BY THE
COURT'S DECISION IN KEPNER V. UNITED STATES, 195 U.S. 100, RENDERED
ONLY A YEAR BEFORE.  THAT CASE ALSO AROSE IN THE PHILIPPINE ISLANDS. 
THE PLAINTIFF IN ERROR HAD BEEN ACQUITTED BY THE COURT OF FIRST
INSTANCE OF THE OFFENSE WITH WHICH HE WAS CHARGED.  ON APPEAL BY THE
GOVERNMENT TO THE SUPREME COURT OF THE ISLANDS, THE JUDGMENT WAS
REVERSED AND THE PLAINTIFF IN ERROR CONVICTED.  IN THIS COURT BOTH THE
ATTORNEY GENERAL FOR THE PHILIPPINES AND THE SOLICITOR GENERAL OF THE
UNITED STATES CONTENDED THAT SEC. 5 OF THE ACT OF JULY 1, 1902, WHICH
INCLUDED THE SAME PROHIBITION AGAINST DOUBLE JEOPARDY INVOLVED IN THE
TRONO CASE, SHOULD BE CONSTRUED IN THE LIGHT OF THE SYSTEM OF LAW
PREVAILING IN THE PHILIPPINES BEFORE THEY WERE CEDED TO THE UNITED
STATES.  BRIEF FOR THE ATTORNEY GENERAL OF THE PHILIPPINES, PP. 6-16,
29-38; BRIEF FOR THE SOLICITOR GENERAL, PP. 34-44.  UNDER THAT
JURISPRUDENCE, PROCEEDINGS IN THE SUPREME COURT, OR AUDIENCIA, WERE
REGARDED NOT AS A NEW TRIAL BUT AS AN EXTENSION OF PRELIMINARY
PROCEEDINGS IN THE COURT OF FIRST INSTANCE.  THE ENTIRE PROCEEDINGS
CONSTITUTED ONE CONTINUOUS TRIAL, AND THE JEOPARDY THAT ATTACHED IN THE
COURT OF FIRST INSTANCE DID NOT TERMINATE UNTIL FINAL JUDGMENT HAD BEEN
RENDERED BY THE AUDIENCIA. 

THE COURT REJECTED THE GOVERNMENT'S CONTENTION AND HELD THAT THE
PROCEEDINGS AFTER ACQUITTAL HAD PLACED THE ACCUSED TWICE IN JEOPARDY. 
WHATEVER THE SPANISH TRADITION, THE PURPOSE OF CONGRESS WAS "TO CARRY
SOME AT LEAST OF THE ESSENTIAL PRINCIPLES OF AMERICAN CONSTITUTIONAL
JURISDPRUDENCE TO THESE ISLANDS AND TO ENGRAFT THEM UPON THE LAW OF
THIS PEOPLE, NEWLY SUBJECT TO OUR JURISDICTION."  "THIS CASE DOES NOT
...  REQUIRE DETERMINATION OF THE QUESTION WHETHER THE JEOPARDY CLAUSE
OF THE FIFTH AMENDMENT BECAME THE LAW OF THE ISLANDS  ...  WITHOUT
CONGRESSIONAL ACTION, AS THE ACT OF CONGRESS MADE IT THE LAW OF THESE
POSSESSIONS WHEN THE ACCUSED WAS TRIED AND CONVICTED."  195 U.S., AT
121-122, 125.  THE COURT ALSO REJECTED THE SUGGESTION THAT THE RIGHTS
ENUMERATED IN THE ACT OF CONGRESS COULD HAVE BEEN USED "IN ANY OTHER
SENSE THAN THAT WHICH HAS BEEN PLACED UPON THEM IN CONSTRUING THE
INSTRUMENT FROM WHICH THEY WERE TAKEN  ...  ."  195 U.S., AT 124.  MR.
JUSTICE HOLMES, DISSENTING, FOUND THE CASE "OF GREAT IMPORTANCE, NOT
ONLY IN ITS IMMEDIATE BEARING UPON THE ADMINISTRATION OF JUSTICE IN THE
PHILIPPINES, BUT, SINCE THE WORDS USED IN THE ACT OF CONGRESS ARE ALSO
IN THE CONSTITUTION, EVEN MORE BECAUSE THE DECISION NECESSARILY WILL
CARRY WITH IT AN INTERPRETATION OF THE LATTER INSTRUMENT."  195 U.S.,
AT 134. 

THE LEGISLATIVE HISTORY OF THE PHILIPPINE BILL OF RIGHTS, SEC. 5 OF
THE ACT OF JULY 1, 1902, MADE INEVITABLE THE COURT'S CONCLUSION THAT BY
ITS ENACTMENT CONGRESS EXTENDED TO THE ISLANDS THE DOUBLE JEOPARDY
PROVISION OF THE FIFTH AMENDMENT, NOTWITHSTANDING SURVIVING SPANISH
PROCEDURES, SO THAT THE COURT SHOULD CONSTRUE THE STATUTE AS IT WOULD
THE CONSTITUTIONAL PROVISION ITSELF.  PRESIDENT MCKINLEY, IN HIS FAMOUS
INSTRUCTIONS TO THE PHILIPPINE COMMISSION, DATED APRIL 7, 1900, DRAWN
BY A LEADER OF THE AMERICAN BAR, SECRETARY OF WAR ELIHU ROOT, HAD
STATED THAT: 

"THE COMMISSION SHOULD BEAR IN MIND, AND THE PEOPLE OF THE ISLANDS
SHOULD BE MADE PLAINLY TO UNDERSTAND, THAT THERE ARE CERTAIN GREAT
PRINCIPLES OF GOVERNMENT WHICH HAVE BEEN MADE THE BASIS OF OUR
GOVERNMENTAL SYSTEM, WHICH WE DEEM ESSENTIAL TO THE RULE OF LAW AND THE
MAINTENANCE OF INDIVIDUAL FREEDOM, AND OF WHICH THEY HAVE,
UNFORTUNATELY, BEEN DENIED THE EXPERIENCE POSSESSED BY US; THAT THERE
ARE ALSO CERTAIN PRACTICAL RULES OF GOVERNMENT WHICH WE HAVE FOUND TO
BE ESSENTIAL TO THE PRESERVATION OF THESE GREAT PRINCIPLES OF LIBERTY
AND LAW, AND THAT THESE PRINCIPLES AND THESE RULES OF GOVERNMENT MUST
BE ESTABLISHED AND MAINTAINED IN THEIR ISLANDS FOR THE SAKE OF THEIR
LIBERTY AND HAPPINESS, HOWEVER MUCH THEY MAY CONFLICT WITH THE CUSTOMS
OR LAWS OF PROCEDURE WITH WHICH THEY ARE FAMILIAR.  IT IS EVIDENT THAT
THE MOST ENLIGHTENED THOUGHT OF THE PHILIPPINE ISLANDS FULLY
APPRECIATES THE IMPORTANCE OF THESE PRINCIPLES AND RULES, AND THEY WILL
INEVITABLY WITHIN A SHORT TIME COMMAND UNIVERSAL ASSENT.  UPON EVERY
DIVISION AND BRANCH OF THE GOVERNMENT OF THE PHILIPPINES, THEREFORE,
MUST BE IMPOSED THESE INVIOLABLE RULES: 

"THAT NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY
WITHOUT DUE PROCESS OF LAW; THAT PRIVATE PROPERTY SHALL NOT BE TAKEN
FOR PUBLIC USE WITHOUT JUST COMPENSATION; THAT IN ALL CRIMINAL
PROSECUTIONS THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC
TRIAL, TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION, TO BE
CONFRONTED WITH THE WITNESSES AGAINST HIM, TO HAVE COMPULSORY PROCESS
FOR OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE THE ASSISTANCE OF
COUNSEL FOR HIS DEFENSE; THAT EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR
EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENT INFLICTED;
THAT NO PERSON SHALL BE PUT TWICE IN JEOPARDY FOR THE SAME OFFENSE ...
."  1 PUBLIC LAWS OF THE PHILIPPINE COMMISSION, P. LXVI.  (FN3) 

AS THE COURT POINTED OUT, "THESE PRINCIPLES WERE NOT TAKEN FROM THE
SPANISH LAW; THEY WERE CAREFULLY COLLATED FROM OUR OWN CONSTITUTION,
AND EMBODY ALMOST VERBATIM THE SAFEGUARDS OF THAT INSTRUMENT FOR THE
PROTECTION OF LIFE AND LIBERTY."  195 U.S., AT 124.  IN THE ACT OF JULY
1, 1902, CONGRESS ADOPTED, ALMOST IN THE LANGUAGE OF THE PRESIDENT'S
INSTRUCTIONS, THE FUNDAMENTAL PROVISIONS HE CONSIDERED MUST BE
ENGRAFTED ONTO PHILIPPINE LAW, AND THE HISTORICAL CONTEXT IN WHICH
CONGRESS ACTED LEAVES NO DOUBT THAT IT WAS ALSO ACTUATED BY THE SAME
PURPOSE AS THE PRESIDENT, TO EXTEND TO THE PHILIPPINES "CERTAIN GREAT
PRINCIPLES OF GOVERNMENT WHICH HAVE BEEN MADE THE BASIS OF OUR
GOVERNMENTAL SYSTEM  ...  ."  1 PUBLIC LAWS OF THE PHILIPPINE
COMMISSION, P. LXVI.  IN THE DOUBLE JEOPARDY PROVISION OF SEC. 5
CONGRESS DID NOT FASHION A NOVEL PRINCIPLE SPECIALLY ADAPTED TO
PHILIPPINE CONDITIONS AND DIFFERENT FROM WHAT WAS FAMILIAR TO AMERICAN
CONSTITUTIONAL THOUGHT.  ON THE CONTRARY, IT EXTENDED OVER THOSE NEWLY
SUBJECT TO OUR JURISDICTION THE SPECIFIC COMMAND OF THE FIFTH
AMENDMENT, AS CONSTRUED AND DEVELOPED IN THE DECISIONS OF THIS COURT. 
THE COURT IN THE KEPNER AND TRONO CASES, THEREFORE, FOLLOWING THE
STATUTORY LANGUAGE ITSELF, EMPHASIZED BY ITS LEGISLATIVE HISTORY,
CONSTRUED THE DOUBLE JEOPARDY PROVISION OF SEC. 5 AS THOUGH IT WERE
CONSTRUING THE SAME PROVISION IN THE UNITED STATES CONSTITUTION.  SEE
ALSO WEEMS V. UNITED STATES, 217 U.S. 349, 367-368.  THE BACKGROUND OF
THESE DECISIONS, AND THE EXPRESSED UNDERSTANDING OF THE COURT ON THE
NATURE AND SCOPE OF THE PROVISION CONSTRUED, MAKE THEM DIRECT AUTHORITY
IN ALL CASES ARISING UNDER THE DOUBLE JEOPARDY PROVISION OF THE FIFTH
AMENDMENT. 

THE DECISION IN TRONO WAS EMPHATICALLY A DECISION OF THE COURT. 
ALTHOUGH MR. JUSTICE HOLMES CONCURRED IN THE RESULT ONLY, AND NOT IN
THE OPINION OF MR. JUSTICE PECKHAM, THERE CAN BE NO DOUBT OF WHERE HE
STOOD.  HE HAD DISSENTED IN THE KEPNER CASE ON THE GROUND THAT TRIAL
AND RETRIAL CONSTITUTED ONE PROCEDURE ENTAILING ONE CONTINUOUS
JEOPARDY, AND THAT THERE COULD BE NO SECOND JEOPARDY UNTIL A CONVICTION
OR ACQUITTAL FREE FROM LEGAL ERROR HAD BEEN OBTAINED.  HE WAS
DISSATISFIED WITH THE OPINION OF MR. JUSTICE PECKHAM IN THE TRONO CASE,
THEREFORE, NOT REMOTELY BECAUSE IT UPHELD THE ACCUSED'S CONVICTION OF
THE GREATER OFFENSE, BUT BECAUSE IT DID NOT GO FURTHER AND ADOPT THE
CONTINUING JEOPARDY THEORY MR. JUSTICE HOLMES HAD ESPOUSED IN THE
KEPNER CASE.  IF THERE WAS NO DOUBLE JEOPARDY FOR HIM WHEN THE
GOVERNMENT APPEALED AN ACQUITTAL, OBVIOUSLY THERE WAS NONE WHEN THE
DEFENDANT APPEALED A CONVICTION.  INDEED, IN KEPNER HE EXPLICITLY
STATED THAT HE CONSIDERED STATE CASES THAT HELD THE DEFENDANT COULD NOT
BE RETRIED FOR THE GREATER OFFENSE TO BE WRONG. 

MANY STATEMENTS BY THIS COURT SINCE TRONO SHOW THAT THE PRINCIPLE OF
THAT CASE CANNOT IN ALL GOOD CONSCIENCE BE RESTED ON THE CRIMINAL
PROCEDURE OF THE PHILIPPINE ISLANDS, BUT ON A CONSTRUCTION OF THE FIFTH
AMENDMENT ITSELF, AND AS SUCH BINDING ON THE ENTIRE FEDERAL JUDICIARY. 
IN BURTON V. UNITED STATES, 202 U.S. 344, 378, A CASE ARISING IN THE
CONTINENTAL UNITED STATES, THE COURT REFERRED TO THE PRINCIPLE
ESTABLISHED BY THE TRONO DECISION WITHOUT ANY SUGGESTION THAT IT WAS
CONFINED TO CASES ARISING IN THE PHILIPPINES.  IN BRANTLEY V. GEORGIA,
217 U.S. 284, THE DEFENDANT WAS CONVICTED OF MANSLAUGHTER UNDER AN
INDICTMENT FOR MURDER.  ON APPEAL TO THE STATE COURT OF APPEALS, THE
CONVICTION WAS REVERSED AND THE DEFENDANT RETRIED AND CONVICTED OF
MURDER.  ALTHOUGH THE CASE CONCERNED THE DUE PROCESS CLAUSE, THE COURT
COMPREHENSIVELY STATED THAT THIS "WAS NOT A CASE OF TWICE IN JEOPARDY
UNDER ANY VIEW OF THE CONSTITUTION OF THE UNITED STATES."  217 U.S., AT
285. 

OF SPECIAL RELEVANCE IS STROUD V. UNITED STATES, 251 U.S. 15, 17-18. 
IN THAT CASE THE DEFENDANT WAS INDICTED FOR MURDER, AND THE JURY
RETURNED A VERDICT OF "GUILTY AS CHARGED IN THE INDICTMENT WITHOUT
CAPITAL PUNISHMENT."  THE JUDGMENT WAS REVERSED AND A NEW TRIAL HAD ON
WHICH THE DEFENDANT WAS AGAIN FOUND GUILTY OF MURDER, BUT WITHOUT A
RECOMMENDATION AGAINST CAPITAL PUNISHMENT.  HE WAS THEN SENTENCED TO
DEATH.  THIS COURT EXPRESSLY RELIED ON TRONO IN AFFIRMING THE JUDGMENT
AND REJECTING THE CONTENTION THAT THE IMPOSITION OF A GREATER
PUNISHMENT HAD PLACED THE DEFENDANT TWICE IN JEOPARDY.  AS A PRACTICAL
MATTER, AND ON ANY BASIS OF HUMAN VALUES, IT IS SCARCELY POSSIBLE TO
DISTINGUISH A CASE IN WHICH THE DEFENDANT IS CONVICTED OF A GREATER
OFFENSE FROM ONE IN WHICH HE IS CONVICTED OF AN OFFENSE THAT HAS THE
SAME NAME AS THAT OF WHICH HE WAS PREVIOUSLY CONVICTED BUT CARRIES A
SIGNIFICANTLY DIFFERENT PUNISHMENT, NAMELY DEATH RATHER THAN
IMPRISONMENT. 

WHATEVER FORMAL DISCLAIMERS MAY BE MADE, NEITHER TRONO ITSELF NOR THE
RELIANCE PLACED UPON IT FOR MORE THAN HALF A CENTURY PERMITS ANY OTHER
CONCLUSION THAN THAT THE COURT TODAY OVERRULES THAT DECISION.  IT DOES
SO, FURTHERMORE, IN A CASE WHERE THE DEFENDANT'S POSITION IS FAR LESS
PERSUASIVE THAN IT WAS IN TRONO.  THERE THE PLAINTIFFS IN ERROR HAD
BEEN EXPRESSLY ACQUITTED OF THE GREATER OFFENSE, WHEREAS IN THE PRESENT
CASE PETITIONER RELIES ON AN "IMPLIED ACQUITTAL" BASED ON HIS
CONVICTION OF THE LESSER OFFENSE OF SECOND DEGREE MURDER AND THE JURY'S
SILENCE ON THE GREATER OFFENSE.  SURELY THE SILENCE OF THE JURY IS NOT,
CONTRARY TO THE COURT'S SUGGESTION, TO BE INTERPRETED AS AN EXPRESS
FINDING THAT THE DEFENDANT IS NOT GUILTY OF THE GREATER OFFENSE.  ALL
THAT CAN WITH CONFIDENCE BE SAID IS THAT THE JURY WAS IN FACT SILENT. 
EVERY TRIAL LAWYER AND EVERY TRIAL JUDGE KNOWS THAT JURY VERDICTS ARE
NOT LOGICAL PRODUCTS, AND ARE DUE TO CONSIDERATIONS THAT PRECLUDE
ACCURATE GUESSING OR LOGICAL DEDUCTION.  INSOFAR AS STATE CASES SPEAK
OF THE JURY'S SILENCE AS AN "ACQUITTAL," THEY GIVE A FICTIONAL
DESCRIPTION OF A LEGAL RESULT:  THAT WHEN A DEFENDANT IS FOUND GUILTY
OF A LESSER OFFENSE UNDER AN INDICTMENT CHARGING A MORE SERIOUS ONE,
AND HE IS CONTENT TO ACCEPT THIS CONVICTION, THE STATE MAY NOT AGAIN
PROSECUTE HIM FOR THE GREATER OFFENSE.  A VERY DIFFERENT SITUATION IS
PRESENTED, WITH CONSIDERATIONS PERSUASIVE OF A DIFFERENT LEGAL RESULT,
WHEN THE DEFENDANT IS NOT CONTENT WITH HIS CONVICTION, BUT APPEALS AND
OBTAINS A REVERSAL.  DUE REGARD FOR THESE ADDITIONAL CONSIDERATIONS IS
NOT MET BY STATING, AS THOUGH IT WERE A SELF-EVIDENT PROPOSITON, THAT
THE JURY'S SILENCE HAS, FOR ALL PURPOSES, "ACQUITTED" THE DEFENDANT. 

MOREOVER, THE ERROR OF THE DISTRICT COURT, WHICH WAS THE BASIS FOR
PETITIONER'S APPEAL FROM HIS FIRST CONVICTION, WAS OF A KIND PECULIARLY
LIKELY TO RAISE DOUBTS THAT THE JURY ON THE FIRST TRIAL HAD MADE A
CONSIDERED DETERMINATION OF PETITIONER'S INNOCENCE OF FIRST DEGREE
MURDER.  BY INSTRUCTING ON SECOND DEGREE MURDER WHEN THE EVIDENCE DID
NOT WARRANT A FINDING OF SUCH AN OFFENSE, THE COURT GAVE THE JURY AN
OPPORTUNITY FOR COMPROMISE AND LENITY THAT SHOULD NOT HAVE BEEN
AVAILABLE.  THE FACT OF THE MATTER IS THAT BY FINDING PETITIONER GUILTY
OF ARSON UNDER COUNT ONE OF THE INDICTMENT, AND OF SECOND DEGREE MURDER
UNDER COUNT TWO, THE JURY FOUND HIM GUILTY OF ALL THE ELEMENTS
NECESSARY TO CONVICT HIM OF THE FIRST DEGREE FELONY MURDER WITH WHICH
HE WAS CHARGED, BUT THE JUDGE'S ERRONEOUS INSTRUCTION PERMITTED THE
JURY, FOR ITS OWN UNDISCLOSED REASON, TO RENDER AN IRRATIONAL VERDICT. 

WE SHOULD NOT BE SO UNMINDFUL, EVEN WHEN CONSTITUTIONAL QUESTIONS ARE
INVOLVED, OF THE PRINCIPLE OF STARE DECISIS, BY WHOSE CIRCUMSPECT
OBSERVANCE THE WISDOM OF THIS COURT AS AN INSTITUTION TRANSCENDING THE
MOMENT CAN ALONE BE BROUGHT TO BEAR ON THE DIFFICULT PROBLEMS THAT
CONFRONT US. THE QUESTION IN THE PRESENT CASE IS EFFECTIVELY
INDISTINGUISHABLE FROM THAT IN TRONO.  FURTHERMORE, WE ARE NOT HERE
CALLED UPON TO WEIGH CONSIDERATIONS GENERATED BY CHANGING CONCEPTS AS
TO MINIMUM STANDARDS OF FAIRNESS, WHICH INTERPRETATION OF THE DUE
PROCESS CLAUSE INEVITABLY REQUIRES.  INSTEAD, THE DEFENSE OF DOUBLE
JEOPARDY IS INVOLVED, WHOSE CONTOURS ARE THE PRODUCT OF HISTORY.  IN
THIS SITUATION THE PASSAGE OF TIME IS NOT ENOUGH, AND THE CONVICTION
BORNE TO THE MIND OF THE RIGHTNESS OF AN OVERTURNING DECISION MUST
SURELY BE OF A HIGHLY COMPELLING QUALITY TO JUSTIFY OVERRULING A WELL
ESTABLISHED PRECEDENT WHEN WE ARE PRESENTED WITH NO CONSIDERATIONS
FAIRLY DEEMED TO HAVE BEEN WANTING TO THOSE WHO PRECEDED US.  WHATEVER
MIGHT HAVE BEEN THE ALLOWABLE RESULT IF THE QUESTION OF RETRYING A
DEFENDANT FOR THE GREATER OFFENSE WERE HERE FOR THE FIRST TIME, TO
FASHION A POLICY IN FAVOREM VITAE, IT IS FORECLOSED BY THE DECISION IN
TRONO V. UNITED STATES. 

EVEN IF THE QUESTION WERE HERE FOR THE FIRST TIME, WE WOULD NOT BE
JUSTIFIED IN ERECTING THE HOLDING OF THE PRESENT CASE AS A
CONSTITUTIONAL RULE.  YET THE OPINION OF THE COURT TREATS THE QUESTION,
NOT AS ONE WITHIN OUR SUPERVISORY JURISDICTION OVER FEDERAL CRIMINAL
PROCEDURE, BUT AS A QUESTION ANSWERED BY THE FIFTH AMENDMENT ITSELF,
AND WHICH THEREFORE EVEN CONGRESS CANNOT UNDERTAKE TO AFFECT. 

SUCH AN APPROACH MISCONCEIVES THE PURPOSES OF THE DOUBLE JEOPARDY
PROVISION, AND WITHOUT WARRANT FROM THE CONSTITUTION MAKES AN ABSOLUTE
OF THE INTERESTS OF THE ACCUSED IN DISREGARD OF THE INTERESTS OF
SOCIETY.  IN PALKO V. CONNECTICUT, 302 U.S. 319, WE HELD THAT A STATE
COULD PERMIT THE PROSECUTION TO APPEAL A CONVICTION OF SECOND DEGREE
MURDER AND ON RETRIAL SECURE A CONVICTION OF FIRST DEGREE MURDER
WITHOUT VIOLATING ANY "FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE." 
SINCE THE STATE'S INTEREST IN OBTAINING A TRIAL "FREE FROM THE
CORROSION OF SUBSTANTIAL LEGAL ERROR" WAS SUFFICIENT TO SUSTAIN THE
CONVICTION OF THE GREATER OFFENSE AFTER AN APPEAL BY THE STATE, IT
WOULD OF COURSE SUSTAIN SUCH A CONVICTION IF THE DEFENDANT HAD HIMSELF
APPEALED.  ALTHOUGH THIS CASE DEFINED CONDUCT PERMISSIBLE UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, IT CANNOT WISELY BE IGNORED
IN TRACING THE CONSTITUTIONAL LIMITS IMPOSED ON THE FEDERAL
GOVERNMENT.  NOR SHOULD WE IGNORE THE FACT THAT A SUBSTANTIAL BODY OF
OPINION IN THE STATES PERMITS WHAT TODAY THE COURT CONDEMNS AS
VIOLATIVE OF A "VITAL SAFEGUARD IN OUR SOCIETY."  (FN4)  THE COURT
RESTRICTS CONGRESS WITHIN LIMITS THAT IN THE EXPERIENCE OF MANY
JURISDICTIONS ARE NOT A PART OF THE PROTECTION AGAINST DOUBLE JEOPARDY
OR REQUIRED BY ITS UNDERLYING PURPOSE, AND HAVE NOT BEEN IMPOSED UPON
THE STATES IN THE EXERCISE OF THEIR GOVERNMENTAL POWERS. 

UNDENIABLY THE FRAMERS OF THE BILL OF RIGHTS WERE CONCERNED TO
PROTECT DEFENDANTS FROM OPPRESSION AND FROM EFFORTS TO SECURE, THROUGH
THE CALLOUSNESS OF REPEATED PROSECUTIONS, CONVICTIONS FOR WHOSE JUSTICE
NO MAN COULD VOUCH.  ON THE OTHER HAND, THEY WERE ALSO AWARE OF THE
COUNTERVAILING INTEREST IN THE VINDICATION OF CRIMINAL JUSTICE, WHICH
SETS OUTER LIMITS TO THE PROTECTIONS FOR THOSE ACCUSED OF CRIMES.  THUS
IF A DEFENDANT APPEALS HIS CONVICTION AND OBTAINS A REVERSAL, ALL
AGREE, CERTAINLY IN THIS COUNTRY, THAT HE MAY BE RETRIED FOR THE SAME
OFFENSE.  THE REASON IS, OBVIOUSLY, NOT THAT THE DEFENDANT HAS
CONSENTED TO THE SECOND TRIAL - HE WOULD MUCH PREFER THAT THE
CONVICTION BE SET ASIDE AND NO FURTHER PROCEEDINGS HAD - BUT THAT THE
CONTINUATION OF THE PROCEEDINGS BY AN APPEAL, TOGETHER WITH THE
REVERSAL OF THE CONVICTION, ARE SUFFICIENT TO PERMIT A RE-EXAMINATION
OF THE ISSUE OF THE DEFENDANT'S GUILT WITHOUT DOING VIOLENCE TO THE
PURPOSES BEHIND THE DOUBLE JEOPARDY CLAUSE.  THE BALANCE REPRESENTED BY
THAT CLAUSE LEAVES FREE ANOTHER APPEAL TO LAW.  SINCE THE PROPRIETY OF
THE ORIGINAL PROCEEDINGS HAS BEEN CALLED IN QUESTION BY THE DEFENDANT,
A COMPLETE RE-EXAMINATION OF THE ISSUES IN DISPUTE IS APPROPRIATE AND
NOT UNJUST.  IN THE CIRCUMSTANCES OF THE PRESENT CASE, LIKEWISE, THE
REVERSAL OF PETITIONER'S CONVICTION WAS A SUFFICIENT REASON TO JUSTIFY
A COMPLETE NEW TRIAL IN ORDER THAT BOTH PARTIES MIGHT HAVE ONE FREE
FROM ERRORS CLAIMED TO BE PREJUDICIAL.  AS MR. JUSTICE PECKHAM POINTED
OUT IN TRONO, "THE CONSTITUTIONAL PROVISION WAS REALLY NEVER INTENDED
TO, AND, PROPERLY CONSTRUED, DOES NOT COVER, THE CASE OF A JUDGMENT
UNDER THESE CIRCUMSTANCES, WHICH HAS BEEN ANNULLED BY THE COURT AT THE
REQUEST OF THE ACCUSED  ...  ."  199 U.S., AT 534. 

I WOULD AFFIRM THE JUDGMENT. 

FN1  "NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENCE TO BE
TWICE PUT IN JEOPARDY OF LIFE OR LIMB  ...  ." 

FN2 IN REVERSING PETITIONER'S CONVICTION THE COURT OBSERVED THAT: "IN
SEEKING A NEW TRIAL AT WHICH - IF THE EVIDENCE IS SUBSTANTIALLY AS
BEFORE - THE JURY WILL HAVE NO CHOICE EXCEPT TO FIND HIM GUILTY OF
FIRST DEGREE MURDER OR TO ACQUIT HIM, GREEN IS MANIFESTLY TAKING A
DESPERATE CHANCE.  HE MAY SUFFER THE DEATH PENALTY.  AT ORAL ARGUMENT
WE INQUIRED OF HIS COUNSEL WHETHER GREEN CLEARLY UNDERSTOOD THE
POSSIBLE CONSEQUENCE OF SUCCESS ON THIS APPEAL, AND WERE TOLD THE
APPELLANT, WHO IS 64 YEARS OF AGE, SAYS HE PREFERS DEATH TO SPENDING
THE REST OF HIS LIFE IN PRISON.  HE IS ENTITLED TO A NEW TRIAL."  95
U.S. APP. D.C. 45, 48, 218 F.2D 856, 859. 

FN3  THESE INSTRUCTIONS WERE DRAWN UP FOR THE GUIDANCE OF THE
COMMISSION HEADED BY WILLIAM HOWARD TAFT.  IN 1912, W. CAMERON FORBES,
THEN GOVERNOR GENERAL OF THE PHILIPPINES, ASKED TAFT "WHAT THE HISTORY
OF THE FORMATION OF THE PHILIPPINE POLICY WAS, WHO IT WAS THAT HAD
WRITTEN THE INSTRUCTIONS BY PRESIDENT MCKINLEY TO THE TAFT COMMISSION. 
HE INFORMED ME THAT THIS WAS THE WORK OF SECRETARY ROOT, WHO WROTE THE
LETTER OF INSTRUCTIONS, AFTER WHICH HE HAD READ THEM OVER TO HIM (JUDGE
TAFT) AND OTHER MEMBERS OF HIS COMMISSION, AND THAT SOME SUGGESTIONS
AND MODIFICATIONS WERE MADE BUT THAT THE MAIN WORK WAS INTACT."  1
FORBES, THE PHILIPPINE ISLANDS, 130, N. 2.  IN AN ADDRESS IN 1913, TAFT
STATED THAT THE INSTRUCTIONS "HAD A CONSPICUOUS PLACE IN THE HISTORY OF
OUR RELATIONS TO THE PHILIPPINES, AND A CONGRESSIONAL INDORSEMENT,
GIVEN TO BUT FEW DOCUMENTS IN THE WHOLE HISTORY OF OUR COUNTRY.  IT
SECURED TO THE PHILIPPINE PEOPLE ALL THE GUARANTIES OF OUR BILL OF
RIGHTS EXCEPT TRIAL BY JURY AND THE RIGHT TO BEAR ARMS.  IT WAS ISSUED
BY PRESIDENT MCKINLEY AS COMMANDER-IN-CHIEF OF THE ARMY AND NAVY IN THE
EXERCISE OF A POWER WHICH CONGRESS WAS GLAD TO LEAVE TO HIM WITHOUT
INTERVENTION FOR FOUR YEARS.  HE HAD THUS THE ABSOLUTE CONTROL OF WHAT
SHOULD BE DONE IN THE WAY OF ESTABLISHING GOVERNMENT IN THE PHILIPPINE
ISLANDS, AND THIS LETTER TO MR. ROOT WAS THE FUNDAMENTAL LAW OF A CIVIL
GOVERNMENT ESTABLISHED UNDER MILITARY AUTHORITY.  SUBSEQUENTLY, IN
1902, WHEN CONGRESS ASSUMED RESPONSIBILITY, IT FORMALLY ADOPTED AND
EXPRESSLY RATIFIED THIS LETTER OF INSTRUCTIONS, AND DECLARED THAT IT,
AS SUPPLEMENTED BY THE REMAINING PROVISIONS OF THE STATUTE, SHOULD BE
THE CONSTITUTION OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, AND THE
CHARTER OF THE LIBERTIES OF THE FILIPINO PEOPLE."  2 FORBES, THE
PHILIPPINE ISLANDS, 500. 

FN4  OF THE 36 STATES THAT HAVE CONSIDERED THE QUESTION, 19 PERMIT
RETRIAL FOR THE GREATER OFFENSE: 

COLORADO. - SEE YOUNG V. PEOPLE, 54 COLO. 293, 298-307. 

CONNECTICUT. - SEE STATE V. LEE, 65 CONN. 265, 271-278; STATE V.
PALKO, 122 CONN. 529, 538-539, 541, AFF'D 302 U.S. 319. 

GEORGIA. - BRANTLEY V. STATE, 132 GA. 573, 574-579, AFF'D 217 U.S.
284; PERDUE V. STATE, 134 GA. 300, 302-303. 

INDIANA. - SEE EX PARTE BRADLEY, 48 IND. 548, 549-558; STATE EX REL.
LOPEZ V. KILLIGREW, 202 IND. 397, 403-406. 

KANSAS.  - STATE V. MCCORD, 8 KAN. 232, 240-244; SEE IN RE
CHRISTENSEN, 166 KAN. 671, 675-677. 

KENTUCKY. - HOSKINS V. COMMONWEALTH, 152 KY. 805, 807-808. 

MISSISSIPPI. - JONES V. STATE, 144 MISS.  52, 60-73, MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS DENIED FOR WANT OF SUBSTANTIAL FEDERAL
QUESTION, 273 U.S. 639 (CITING TRONO V. UNITED STATES); BUTLER V.
STATE, 177 MISS.  91, 100. 

MISSOURI. - SEE STATE V. SIMMS, 71 MO. 538, 540-541; STATE V.
STALLINGS, 334 MO. 1, 5. 

NEBRASKA. - BOHANAN V. STATE, 18 NEB. 57, 58-77, SUBMISSION OF CAUSE
SET ASIDE BECAUSE OF ESCAPE OF PLAINTIFF IN ERROR, 125 U.S. 692;
MACOMBER V. STATE, 137 NEB. 882, 896. 

NEVADA. - IN RE SOMERS, 31 NEV. 531, 532-539; SEE STATE V. TEETER, 65
NEV. 584, 610. 

NEW JERSEY.  - SEE STATE V. LEO, 34 N.J.L.J. 340, 341-342, 356. 

NEW YORK.  - PEOPLE V. PALMER, 109 N.Y. 413, 415-420; PEOPLE V.
MCGRATH, 202 N.Y. 445, 450-451. 

NORTH CAROLINA.  - STATE V. CORRELL, 229 N.C. 640, 641-642; SEE STATE
V. MATTHEWS, 142 N.C. 621, 622-623. 

OHIO. - STATE V. BEHIMER, 20 OHIO ST. 572, 576-582; STATE V.
ROBINSON, 100 OHIO APP.  466, 470-472. 

OKLAHOMA. - WATSON V. STATE, 26 OKLA. CR. 377, 379-390; SEE PIERCE V.
STATE, 96 OKLA. CR. 76, 79. 

SOUTH CAROLINA.  - SEE STATE V. GILLIS, 73 S.C. 318, 319-324; STATE
V. STEADMAN, 216 S.C.  579, 588-592. 

UTAH. - STATE V. KESSLER, 15 UTAH 142, 144-147. 

VERMONT. - SEE STATE V. BRADLEY, 67 VT. 465, 472-474; STATE V.
PIANFETTI, 79 VT.  236, 246-247. 

WASHINGTON. - STATE V. ASH, 68 WASH. 194, 197-203; STATE V. HIATT,
187 WASH. 226, 236. 

IN EIGHT OF THESE STATES, INDIANA, KANSAS, KENTUCKY, NEVADA, NEW
YORK, OHIO, OKLAHOMA, AND UTAH, THIS RESULT IS BASED TO SOME EXTENT ON
STATUTES DEFINING THE EFFECT OF GRANTING A NEW TRIAL.  IN FOUR,
COLORADO, GEORGIA, MISSISSIPPI AND MISSOURI, ON SPECIAL CONSTITUTIONAL
PROVISIONS THAT PERMIT RETRIAL FOR THE GREATER OFFENSE.  CONNECTICUT,
NORTH CAROLINA, AND VERMONT HAVE NO CONSTITUTIONAL PROVISIONS AS TO
DOUBLE JEOPARDY, BUT RECOGNIZE THE COMMON-LAW PROHIBITION. 

IN 17 STATES THE DEFENDANT CANNOT BE RETRIED FOR THE GREATER
OFFENSE: 

ALABAMA. - SEE THOMAS V. STATES, 255 ALA. 632, 635-636. 

ARKANSAS. - JOHNSON V. STATE, 29 ARK. 31, 32-46; SEE HEARN V. STATE,
212 ARK. 360, 361. 

CALIFORNIA. - PEOPLE V. GILMORE, 4 CAL. 376; PEOPLE V. GORDON, 99 CAL.
227, 228-232; IN RE HESS, 45 CAL. 2D 171, 175-176; BUT SEE PEOPLE V.
KEEFER, 65 CAL. 232, 234-235; PEOPLE V. MCNEER, 14 CAL. APP. 2D 22, 27
30; IN RE MOORE, 29 CAL. APP. 2D 56. 

DELAWARE. - SEE STATE V. NAYLOR, 28 DEL. 99, 114-115, 117. 

FLORIDA. - STATE EX REL. LANDIS V. LEWIS, 118 FLA. 910, 911-916; SEE
MCLEOD V. STATE, 128 FLA. 35, 37; SIMMONS V. STATE, 156 FLA. 353, 354. 

ILLINOIS. - BRENNAN V. PEOPLE, 15 ILL. 511, 517-519; PEOPLE V.
NEWMAN, 360 ILL. 226, 232-233. 

IOWA. - STATE V. TWEEDY, 11 IOWA 350, 353-358; STATE V. COLEMAN, 226
IOWA 968, 976. 

LOUISIANA. - SEE STATE V. HARVILLE, 171 LA. 256, 258-262. 

MICHIGAN. - PEOPLE V. FARRELL, 146 MICH. 264, 266, 269, 272-273, 294;
PEOPLE V. GESSINGER, 238 MICH. 625, 627-629. 

NEW MEXICO.  - STATE V. WELCH, 37 N.M. 549, 559; STATE V. WHITE, 61
N.M. 109, 113. 

OREGON. - STATE V. STEEVES, 29 ORE.  85, 107-111; STATE V. WILSON,
172 ORE.  373, 382. 

PENNSYLVANIA. - COMMONWEALTH V. DEITRICK, 221 PA. 7, 17-18;
COMMONWEALTH V. FLAX, 331 PA. 145, 157-158.    TENNESSEE. - SEE
SLAUGHTER V. STATE, 6 HUMPH.  410, 413-415; REAGAN V. STATE, 155 TENN.
397, 400-402. 

TEXAS. - JONES V. STATE, 13 TEX. 168, 184-185; BROWN V. STATE, 99
TEX. CR. R. 19, 21-22; BUT SEE HILL V. STATE, 126 TEX. CR. R. 79, 80
81; JOUBERT V. STATE, 136 TEX. CR. R. 219, 220-221; BECKHAM V. STATE,
141 TEX. CR. R. 438, 442; HALL V. STATE, 145 TEX. CR. R. 192, 194; EX
PARTE BYRD, 157 TEX. CR. R. 595, 597-598. 

VIRGINIA. - STUART V. COMMONWEALTH, 28 GRATT.  950, 953-964; SEE
TAYLOR V. COMMONWEALTH, 186 VA. 587, 589-590, 592. 

WEST VIRGINIA.  - SEE STATE V. FRANKLIN, 139 W. VA. 43, 64. 

WISCONSIN. - RADEJ V. STATE, 152 WIS. 503, 511-513; BUT SEE STATE V.
B----------, 173 WIS.  608, 616-628; STATE V. WITTE, 243 WIS. 423, 427
431; STATE V. EVJUE, 254 WIS. 581, 586-592. 

IN TWO OF THESE STATES, VIRGINIA AND TEXAS, THE RESULT IS BASED TO
SOME EXTENT ON STATUTES PROHIBITING RETRIAL FOR THE GREATER OFFENSE,
AND IN NEW MEXICO ON A CONSTITUTIONAL PROVISION TO THE SAME EFFECT. 
..END :




MCGEE V. INTERNATIONAL LIFE INSURANCE CO. 355 U.S. 220 


NO. 50.  ARGUED NOVEMBER 20, 1957 - DECIDED DECEMBER 16, 1957 - 288
S.W.2D 579, REVERSED AND REMANDED. 


PETITIONER'S SON, A RESIDENT OF CALIFORNIA, BOUGHT A LIFE INSURANCE
POLICY FROM AN ARIZONA CORPORATION, NAMING PETITIONER AS BENEFICIARY. 
LATER, RESPONDENT, A TEXAS CORPORATION, AGREED TO ASSUME THE INSURANCE
OBLIGATIONS OF THE ARIZONA CORPORATION AND MAILED A REINSURANCE
CERTIFICATE TO PETITIONER'S SON IN CALIFORNIA, OFFERING TO INSURE HIM
IN ACCORDANCE WITH HIS POLICY.  HE ACCEPTED THIS OFFER AND PAID
PREMIUMS BY MAIL FROM HIS CALIFORNIA HOME TO RESPONDENT'S OFFICE IN
TEXAS.  NEITHER CORPORATION HAS EVER HAD ANY OFFICE OR AGENT IN
CALIFORNIA OR DONE ANY OTHER BUSINESS IN THAT STATE.  PETITIONER SENT
PROOFS OF HER SON'S DEATH TO RESPONDENT, BUT IT REFUSED TO PAY THE
CLAIM.  UNDER A CALIFORNIA STATUTE SUBJECTING FOREIGN CORPORATIONS TO
SUIT IN CALIFORNIA ON INSURANCE CONTRACTS WITH RESIDENTS OF CALIFORNIA,
EVEN THOUGH SUCH CORPORATIONS CANNOT BE SERVED WITH PROCESS WITHIN THE
STATE, PETITIONER SUED RESPONDENT AND OBTAINED JUDGMENT IN A CALIFORNIA
COURT, PROCESS BEING SERVED ONLY BY REGISTERED MAIL TO RESPONDENT'S
PRINCIPAL PLACE OF BUSINESS IN TEXAS.  HELD: 

1.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT
PRECLUDE THE CALIFORNIA COURT FROM ENTERING A JUDGMENT BINDING ON
RESPONDENT, SINCE THE SUIT WAS BASED ON A CONTRACT WHICH HAD A
SUBSTANTIAL CONNECTION WITH CALIFORNIA.  PP. 223-224. 

2.  RESPONDENT'S INSURANCE CONTRACT WAS NOT UNCONSTITUTIONALLY
IMPAIRED BY THE FACT THAT THE CALIFORNIA STATUTE HERE INVOLVED DID NOT
BECOME EFFECTIVE UNTIL AFTER RESPONDENT HAD ASSUMED THE OBLIGATION OF
THE INSURANCE POLICY.  P. 224. 

MCGEE V. INTERNATIONAL LIFE INSURANCE CO. 

CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, FIRST SUPREME
JUDICIAL DISTRICT. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
DOUGLAS. 

PETITIONER, LULU B. MCGEE, RECOVERED A JUDGMENT IN A CALIFORNIA STATE
COURT AGAINST RESPONDENT, INTERNATIONAL LIFE INSURANCE COMPANY, ON A
CONTRACT OF INSURANCE.  RESPONDENT WAS NOT SERVED WITH PROCESS IN
CALIFORNIA BUT BY REGISTERED MAIL AT ITS PRINCIPAL PLACE OF BUSINESS IN
TEXAS.  THE CALIFORNIA COURT BASED ITS JURISDICTION ON A STATE STATUTE
WHICH SUBJECTS FOREIGN CORPORATIONS TO SUIT IN CALIFORNIA ON INSURANCE
CONTRACTS WITH RESIDENTS OF THAT STATE EVEN THOUGH SUCH CORPORATIONS
CANNOT BE SERVED WITH PROCESS WITHIN ITS BORDERS.  (FN1) 

UNABLE TO COLLECT THE JUDGMENT IN CALIFORNIA PETITIONER WENT TO TEXAS
WHERE SHE FILED SUIT ON THE JUDGMENT IN A TEXAS COURT.  BUT THE TEXAS
COURTS REFUSED TO ENFORCE HER JUDGMENT HOLDING IT WAS VOID UNDER THE
FOURTEENTH AMENDMENT BECAUSE SERVICE OF PROCESS OUTSIDE CALIFORNIA
COULD NOT GIVE THE COURTS OF THAT STATE JURISDICTION OVER RESPONDENT. 
288 S.W.2D 579.  SINCE THE CASE RAISED IMPORTANT QUESTIONS, NOT ONLY TO
CALIFORNIA BUT TO OTHER STATES WHICH HAVE SIMILAR LAWS, WE GRANTED
CERTIORARI.  352 U.S. 924.  IT IS NOT CONTROVERTED THAT IF THE
CALIFORNIA COURT PROPERLY EXERCISED JURISDICTION OVER RESPONDENT THE
TEXAS COURTS ERRED IN REFUSING TO GIVE ITS JUDGMENT FULL FAITH AND
CREDIT.  28 U.S.C. SEC. 1738. 

THE MATERIAL FACTS ARE RELATIVELY SIMPLE.  IN 1944, LOWELL FRANKLIN,
A RESIDENT OF CALIFORNIA, PURCHASED A LIFE INSURANCE POLICY FROM THE
EMPIRE MUTUAL INSURANCE COMPANY, AN ARIZONA CORPORATION.  IN 1948 THE
RESPONDENT AGREED WITH EMPIRE MUTUAL TO ASSUME ITS INSURANCE
OBLIGATIONS.  RESPONDENT THEN MAILED A REINSURANCE CERTIFICATE TO
FRANKLIN IN CALIFORNIA OFFERING TO INSURE HIM IN ACCORDANCE WITH THE
TERMS OF THE POLICY HE HELD WITH EMPIRE MUTUAL.  HE ACCEPTED THIS OFFER
AND FROM THAT TIME UNTIL HIS DEATH IN 1950 PAID PREMIUMS BY MAIL FROM
HIS CALIFORNIA HOME TO RESPONDENT'S TEXAS OFFICE.   PETITIONER,
FRANKLIN'S MOTHER, WAS THE BENEFICIARY UNDER THE POLICY.  SHE SENT
PROOFS OF HIS DEATH TO THE RESPONDENT BUT IT REFUSED TO PAY CLAIMING
THAT HE HAD COMMITTED SUICIDE.  IT APPEARS THAT NEITHER EMPIRE MUTUAL
NOR RESPONDENT HAS EVER HAD ANY OFFICE OR AGENT IN CALIFORNIA.  AND SO
FAR AS THE RECORD BEFORE US SHOWS, RESPONDENT HAS NEVER SOLICITED OR
DONE ANY INSURANCE BUSINESS IN CALIFORNIA APART FROM THE POLICY
INVOLVED HERE. 

SINCE PENNOYER V. NEFF, 95 U.S. 714, THIS COURT HAS HELD THAT THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PLACES SOME LIMIT ON THE
POWER OF STATE COURTS TO ENTER BINDING JUDGMENTS AGAINST PERSONS NOT
SERVED WITH PROCESS WITHIN THEIR BOUNDARIES.  BUT JUST WHERE THIS LINE
OF LIMITATION FALLS HAS BEEN THE SUBJECT OF PROLIFIC CONTROVERSY,
PARTICULARLY WITH RESPECT TO FOREIGN CORPORATIONS.  IN A CONTINUING
PROCESS OF EVOLUTION THIS COURT ACCEPTED AND THEN ABANDONED "CONSENT,"
"DOING BUSINESS," AND "PRESENCE" AS THE STANDARD FOR MEASURING THE
EXTENT OF STATE JUDICIAL POWER OVER SUCH CORPORATIONS.  SEE HENDERSON,
THE POSITION OF FOREIGN CORPORATIONS IN AMERICAN CONSTITUTIONAL LAW, C.
V. MORE RECENTLY IN INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310,
THE COURT DECIDED THAT "DUE PROCESS REQUIRES ONLY THAT IN ORDER TO
SUBJECT A DEFENDANT TO A JUDGMENT IN PERSONAM, IF HE BE NOT PRESENT
WITHIN THE TERRITORY OF THE FORUM, HE HAVE CERTAIN MINIMUM CONTACTS
WITH IT SUCH THAT THE MAINTENANCE OF THE SUIT DOES NOT OFFEND
'TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE.'"  ID., AT
316. 

LOOKING BACK OVER THIS LONG HISTORY OF LITIGATION A TREND IS CLEARLY
DISCERNIBLE TOWARD EXPANDING THE PERMISSIBLE SCOPE OF STATE
JURISDICTION OVER FOREIGN CORPORATIONS AND OTHER NONRESIDENTS.  IN PART
THIS IS ATTRIBUTABLE TO THE FUNDAMENTAL TRANSFORMATION OF OUR NATIONAL
ECONOMY OVER THE YEARS.  TODAY MANY COMMERCIAL TRANSACTIONS TOUCH TWO
OR MORE STATES AND MAY INVOLVE PARTIES SEPARATED BY THE FULL
CONTINENT.  WITH THIS INCREASING NATIONALIZATION OF COMMERCE HAS COME A
GREAT INCREASE IN THE AMOUNT OF BUSINESS CONDUCTED BY MAIL ACROSS STATE
LINES.  AT THE SAME TIME MODERN TRANSPORTATION AND COMMUNICATION HAVE
MADE IT MUCH LESS BURDENSOME FOR A PARTY SUED TO DEFEND HIMSELF IN A
STATE WHERE HE ENGAGES IN ECONOMIC ACTIVITY. 

TURNING TO THIS CASE WE THINK IT APPARENT THAT THE DUE PROCESS CLAUSE
DID NOT PRECLUDE THE CALIFORNIA COURT FROM ENTERING A JUDGMENT BINDING
ON RESPONDENT.  IT IS SUFFICIENT FOR PURPOSES OF DUE PROCESS THAT THE
SUIT WAS BASED ON A CONTRACT WHICH HAD SUBSTANTIAL CONNECTION WITH THAT
STATE.  CF. HESS V. PAWLOSKI, 274 U.S. 352; HENRY L. DOHERTY & CO. V.
GOODMAN, 294 U.S. 623; PENNOYER V. NEFF, 95 U.S. 714, 735.  (FN2)  THE
CONTRACT WAS DELIVERED IN CALIFORNIA, THE PREMIUMS WERE MAILED FROM
THERE AND THE INSURED WAS A RESIDENT OF THAT STATE WHEN HE DIED.  IT
CANNOT BE DENIED THAT CALIFORNIA HAS A MANIFEST INTEREST IN PROVIDING
EFFECTIVE MEANS OF REDRESS FOR ITS RESIDENTS WHEN THEIR INSURERS REFUSE
TO PAY CLAIMS.  THESE RESIDENTS WOULD BE AT A SEVERE DISADVANTAGE IF
THEY WERE FORCED TO FOLLOW THE INSURANCE COMPANY TO A DISTANT STATE IN
ORDER TO HOLD IT LEGALLY ACCOUNTABLE.  WHEN CLAIMS WERE SMALL OR
MODERATE INDIVIDUAL CLAIMANTS FREQUENTLY COULD NOT AFFORD THE COST OF
BRINGING AN ACTION IN A FOREIGN FORUM - THUS IN EFFECT MAKING THE
COMPANY JUDGMENT PROOF.  OFTEN THE CRUCIAL WITNESSES - AS HERE ON THE
COMPANY'S DEFENSE OF SUICIDE - WILL BE FOUND IN THE INSURED'S
LOCALITY.  OF COURSE THERE MAY BE INCONVENIENCE TO THE INSURER IF IT IS
HELD AMENABLE TO SUIT IN CALIFORNIA WHERE IT HAD THIS CONTRACT BUT
CERTAINLY NOTHING WHICH AMOUNTS TO A DENIAL OF DUE PROCESS.  CF.
TRAVELERS HEALTH ASSN. V. VIRGINIA EX REL. STATE CORPORATION COMM'N,
339 U.S. 643.  THERE IS NO CONTENTION THAT RESPONDENT DID NOT HAVE
ADEQUATE NOTICE OF THE SUIT OR SUFFICIENT TIME TO PREPARE ITS DEFENSES
AND APPEAR. 

THE CALIFORNIA STATUTE BECAME LAW IN 1949, AFTER RESPONDENT HAD
ENTERED INTO THE AGREEMENT WITH FRANKLIN TO ASSUME EMPIRE MUTUAL'S
OBLIGATION TO HIM.  RESPONDENT CONTENDS THAT APPLICATION OF THE STATUTE
TO THIS EXISTING CONTRACT IMPROPERLY IMPAIRS THE OBLIGATION OF THE
CONTRACT.  WE BELIEVE THAT CONTENTION IS DEVOID OF MERIT.  THE STATUTE
WAS REMEDIAL, IN THE PUREST SENSE OF THAT TERM, AND NEITHER ENLARGED
NOR IMPAIRED RESPONDENT'S SUBSTANTIVE RIGHTS OR OBLIGATIONS UNDER THE
CONTRACT.  IT DID NOTHING MORE THAN TO PROVIDE PETITIONER WITH A
CALIFORNIA FORUM TO ENFORCE WHATEVER SUBSTANTIVE RIGHTS SHE MIGHT HAVE
AGAINST RESPONDENT.  AT THE SAME TIME RESPONDENT WAS GIVEN A REASONABLE
TIME TO APPEAR AND DEFEND ON THE MERITS AFTER BEING NOTIFIED OF THE
SUIT.  UNDER SUCH CIRCUMSTANCES IT HAD NO VESTED RIGHT NOT TO BE SUED
IN CALIFORNIA.  CF. BERNHEIMER V. CONVERSE, 206 U.S. 516; NATIONAL
SURETY CO. V. ARCHITECTURAL DECORATING CO., 226 U.S. 276; FUNKHOUSER V.
J.B. PRESTON CO., 290 U.S. 163. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF
CIVIL APPEALS OF THE STATE OF TEXAS, FIRST SUPREME JUDICIAL DISTRICT,
FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  CAL. INSURANCE CODE, 1953, SECS. 1610-1620. 

FN2  AND SEE ACE GRAIN CO. V. AMERICAN EAGLE FIRE INS. CO., 95 F.
SUPP. 784; STOREY V. UNITED INS. CO., 64 F. SUPP. 896; S. HOWES CO. V.
W.P. MILLING CO., 277 P.2D 655 (OKLA.); COMPANIA DE ASTRAL, S.A. V.
BOSTON METALS CO., 205 MD. 237, 107 A.2D 357, CERT. DENIED, 348 U.S.
943; ZACHARAKIS V. BUNKER HILL MUT. INS. CO., 281 APP. DIV. 487, 120
N.Y.S.2D 418; SMYTH V. TWIN STATE IMPROVEMENT CO., 116 VT. 569, 80 A.2D
664. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :

















LAMBERT V. CALIFORNIA 355 U.S. 225 


NO. 47.  ARGUED APRIL 3, 1957 - RESTORED TO THE DOCKET FOR REARGUMENT
JUNE 3, 1957 - REARGUED OCTOBER 16-17, 1957 - DECIDED DECEMBER 16, 1957
- REVERSED. 


A LOS ANGELES MUNICIPAL ORDINANCE MAKES IT AN OFFENSE FOR A PERSON WHO
HAS BEEN CONVICTED OF A CRIME PUNISHABLE IN CALIFORNIA AS A FELONY TO
REMAIN IN THE CITY FOR MORE THAN FIVE DAYS WITHOUT REGISTERING WITH THE
CHIEF OF POLICE.  ON APPEAL FROM A CONVICTION FOR FAILURE TO REGISTER,
HELD: WHEN APPLIED TO A PERSON WHO HAS NO ACTUAL KNOWLEDGE OF HIS DUTY
TO REGISTER, AND WHERE NO SHOWING IS MADE OF THE PROBABILITY OF SUCH
KNOWLEDGE, THIS ORDINANCE VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 226-230. 

LAMBERT V. CALIFORNIA. 

APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA, LOS ANGELES COUNTY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PERSON" AS FOLLOWS: 

"ANY PERSON WHO, SUBSEQUENT TO JANUARY 1, 1921, HAS BEEN OR HEREAFTER
IS CONVICTED OF AN OFFENSE PUNISHABLE AS A FELONY IN THE STATE OF
CALIFORNIA, OR WHO HAS BEEN OR WHO IS HEREAFTER CONVICTED OF ANY
OFFENSE IN ANY PLACE OTHER THAN THE STATE OF CALIFORNIA, WHICH OFFENSE,
IF COMMITTED IN THE STATE OF CALIFORNIA, WOULD HAVE BEEN PUNISHABLE AS
A FELONY." 

PERSON" TO BE OR REMAIN IN LOS ANGELES FOR A PERIOD OF MORE THAN FIVE
DAYS WITHOUT REGISTERING; IT REQUIRES ANY PERSON HAVING A PLACE OF
ABODE OUTSIDE THE CITY TO REGISTER IF HE COMES INTO THE CITY ON FIVE
OCCASIONS OR MORE DURING A 30-DAY PERIOD; AND IT PRESCRIBES THE
INFORMATION TO BE FURNISHED THE CHIEF OF POLICE ON REGISTERING. 

EACH DAY'S FAILURE CONSTITUTING A SEPARATE OFFENSE. 

APPELLANT, ARRESTED ON SUSPICION OF ANOTHER OFFENSE, WAS CHARGED WITH
A VIOLATION OF THIS REGISTRATION LAW.*  THE EVIDENCE SHOWED THAT SHE
HAD BEEN AT THE TIME OF HER ARREST A RESIDENT OF LOS ANGELES FOR OVER
SEVEN YEARS.  WITHIN THAT PERIOD SHE HAD BEEN CONVICTED IN LOS ANGELES
OF THE CRIME OF FORGERY, AN OFFENSE WHICH CALIFORNIA PUNISHES AS A
FELONY.  THOUGH CONVICTED OF A CRIME PUNISHABLE AS A FELONY, SHE HAD
NOT AT THE TIME OF HER ARREST REGISTERED UNDER THE MUNICIPAL CODE.  AT
THE TRIAL, APPELLANT ASSERTED THAT SEC. 52.39 OF THE CODE DENIES HER
DUE PROCESS OF LAW AND OTHER RIGHTS UNDER THE FEDERAL CONSTITUTION,
UNNECESSARY TO ENUMERATE.  THE TRIAL COURT DENIED THIS OBJECTION.  THE
CASE WAS TRIED TO A JURY WHICH FOUND APPELLANT GUILTY.  THE COURT FINED
HER $250 AND PLACED HER ON PROBATION FOR THREE YEARS.  APPELLANT,
RENEWING HER CONSTITUTIONAL OBJECTION, MOVED FOR ARREST OF JUDGMENT AND
A NEW TRIAL.  THIS MOTION WAS DENIED.  ON APPEAL THE CONSTITUTIONALITY
OF THE CODE WAS AGAIN CHALLENGED.  THE APPELLATE DEPARTMENT OF THE
SUPERIOR COURT AFFIRMED THE JUDGMENT, HOLDING THERE WAS NO MERIT TO THE
CLAIM THAT THE ORDINANCE WAS UNCONSTITUTIONAL.  THE CASE IS HERE ON
APPEAL.  28 U.S.C. SEC. 1257(2).  WE NOTED PROBABLE JURISDICTION, 352
U.S. 914, AND DESIGNATED AMICUS CURIAE TO APPEAR IN SUPPORT OF
APPELLANT.  THE CASE HAVING BEEN ARGUED AND REARGUED, WE NOW HOLD THAT
THE REGISTRATION PROVISIONS OF THE CODE AS SOUGHT TO BE APPLIED HERE
VIOLATE THE DUE PROCESS REQUIREMENT OF THE FOURTEENTH AMENDMENT. 

*FOR A RECENT COMPREHENSIVE REVIEW OF THESE REGISTRATION LAWS SEE
NOTE, 103 U. OF PA. L. REV. 60 (1954). 

THE REGISTRATION PROVISION, CARRYING CRIMINAL PENALTIES, APPLIES IF A
PERSON HAS BEEN CONVICTED "OF AN OFFENSE PUNISHABLE AS A FELONY IN THE
STATE OF CALIFORNIA" OR, IN CASE HE HAS BEEN CONVICTED IN ANOTHER
STATE, IF THE OFFENSE "WOULD HAVE BEEN PUNISHABLE AS A FELONY" HAD IT
BEEN COMMITTED IN CALIFORNIA.  NO ELEMENT OF WILLFULNESS IS BY TERMS
INCLUDED IN THE ORDINANCE NOR READ INTO IT BY THE CALIFORNIA COURT AS A
CONDITION NECESSARY FOR A CONVICTION. 

WE MUST ASSUME THAT APPELLANT HAD NO ACTUAL KNOWLEDGE OF THE
REQUIREMENT THAT SHE REGISTER UNDER THIS ORDINANCE, AS SHE OFFERED
PROOF OF THIS DEFENSE WHICH WAS REFUSED.  THE QUESTION IS WHETHER A
REGISTRATION ACT OF THIS CHARACTER VIOLATES DUE PROCESS WHERE IT IS
APPLIED TO A PERSON WHO HAS NO ACTUAL KNOWLEDGE OF HIS DUTY TO
REGISTER, AND WHERE NO SHOWING IS MADE OF THE PROBABILITY OF SUCH
KNOWLEDGE. 

WE DO NOT GO WITH BLACKSTONE IN SAYING THAT "A VICIOUS WILL" IS
NECESSARY TO CONSTITUTE A CRIME, 4 BL. COMM. *21, FOR CONDUCT ALONE
WITHOUT REGARD TO THE INTENT OF THE DOER IS OFTEN SUFFICIENT.  THERE IS
WIDE LATITUDE IN THE LAWMAKERS TO DECLARE AN OFFENSE AND TO EXCLUDE
ELEMENTS OF KNOWLEDGE AND DILIGENCE FROM ITS DEFINITION.  SEE CHICAGO,
B.&Q.R. CO. V. UNITED STATES, 220 U.S. 559, 578.  BUT WE DEAL HERE WITH
CONDUCT THAT IS WHOLLY PASSIVE - MERE FAILURE TO REGISTER.  IT IS
UNLIKE THE COMMISSION OF ACTS, OR THE FAILURE TO ACT UNDER
CIRCUMSTANCES THAT SHOULD ALERT THE DOER TO THE CONSEQUENCES OF HIS
DEED.  CF. SHEVLIN-CARPENTER CO. V. MINNESOTA, 218 U.S. 57; UNITED
STATES V. BALINT, 258 U.S. 250; UNITED STATES V. DOTTERWEICH, 320 U.S.
277, 284.  THE RULE THAT "IGNORANCE OF THE LAW WILL NOT EXCUSE"
(SHEVLIN-CARPENTER CO. V. MINNESOTA, SUPRA, P. 68) IS DEEP IN OUR LAW,
AS IS THE PRINCIPLE THAT OF ALL THE POWERS OF LOCAL GOVERNMENT, THE
POLICE POWER IS "ONE OF THE LEAST LIMITABLE."  DISTRICT OF COLUMBIA V.
BROOKE, 214 U.S. 138, 149.  ON THE OTHER HAND, DUE PROCESS PLACES SOME
LIMITS ON ITS EXERCISE.  ENGRAINED IN OUR CONCEPT OF DUE PROCESS IS THE
REQUIREMENT OF NOTICE.  NOTICE IS SOMETIMES ESSENTIAL SO THAT THE
CITIZEN HAS THE CHANCE TO DEFEND CHARGES.  NOTICE IS REQUIRED BEFORE
PROPERTY INTERESTS ARE DISTURBED, BEFORE ASSESSMENTS ARE MADE, BEFORE
PENALTIES ARE ASSESSED.  NOTICE IS REQUIRED IN A MYRIAD OF SITUATIONS
WHERE A PENALTY OR FORFEITURE MIGHT BE SUFFERED FOR MERE FAILURE TO
ACT.  RECENT CASES ILLUSTRATING THE POINT ARE MULLANE V. CENTRAL
HANOVER TRUST CO., 339 U.S. 306; COVEY V. TOWN OF SOMERS, 351 U.S. 141;
WALKER V. HUTCHINSON CITY, 352 U.S. 112.  THESE CASES INVOLVED ONLY
PROPERTY INTERESTS IN CIVIL LITIGATION.  BUT THE PRINCIPLE IS EQUALLY
APPROPRIATE WHERE A PERSON, WHOLLY PASSIVE AND UNAWARE OF ANY
WRONGDOING, IS BROUGHT TO THE BAR OF JUSTICE FOR CONDEMNATION IN A
CRIMINAL CASE. 

REGISTRATION LAWS ARE COMMON AND THEIR RANGE IS WIDE.  CF. BRYANT V.
ZIMMERMAN, 278 U.S. 63; UNITED STATES V. HARRISS, 347 U.S. 612; UNITED
STATES V. KAHRIGER, 345 U.S. 22.  MANY SUCH LAWS ARE AKIN TO LICENSING
STATUTES IN THAT THEY PERTAIN TO THE REGULATION OF BUSINESS
ACTIVITIES.  BUT THE PRESENT ORDINANCE IS ENTIRELY DIFFERENT. 
VIOLATION OF ITS PROVISIONS IS UNACCOMPANIED BY ANY ACTIVITY WHATEVER,
MERE PRESENCE IN THE CITY BEING THE TEST.  MOREOVER, CIRCUMSTANCES
WHICH MIGHT MOVE ONE TO INQUIRE AS TO THE NECESSITY OF REGISTRATION ARE
COMPLETELY LACKING.  AT MOST THE ORDINANCE IS BUT A LAW ENFORCEMENT
TECHNIQUE DESIGNED FOR THE CONVENIENCE OF LAW ENFORCEMENT AGENCIES
THROUGH WHICH A LIST OF THE NAMES AND ADDRESSES OF FELONS THEN RESIDING
IN A GIVEN COMMUNITY IS COMPILED.  THE DISCLOSURE IS MERELY A
COMPILATION OF FORMER CONVICTIONS ALREADY PUBLICLY RECORDED IN THE
JURISDICTION WHERE OBTAINED.  NEVERTHELESS, THIS APPELLANT ON FIRST
BECOMING AWARE OF HER DUTY TO REGISTER WAS GIVEN NO OPPORTUNITY TO
COMPLY WITH THE LAW AND AVOID ITS PENALTY, EVEN THOUGH HER DEFAULT WAS
ENTIRELY INNOCENT.  SHE COULD BUT SUFFER THE CONSEQUENCES OF THE
ORDINANCE, NAMELY, CONVICTION WITH THE IMPOSITION OF HEAVY CRIMINAL
PENALTIES THEREUNDER.  WE BELIEVE THAT ACTUAL KNOWLEDGE OF THE DUTY TO
REGISTER OR PROOF OF THE PROBABILITY OF SUCH KNOWLEDGE AND SUBSEQUENT
FAILURE TO COMPLY ARE NECESSARY BEFORE A CONVICTION UNDER THE ORDINANCE
CAN STAND.  AS HOLMES WROTE IN THE COMMON LAW, "A LAW WHICH PUNISHED
CONDUCT WHICH WOULD NOT BE BLAMEWORTHY IN THE AVERAGE MEMBER OF THE
COMMUNITY WOULD BE TOO SEVERE FOR THAT COMMUNITY TO BEAR."  ID., AT
50.  ITS SEVERITY LIES IN THE ABSENCE OF AN OPPORTUNITY EITHER TO AVOID
THE CONSEQUENCES OF THE LAW OR TO DEFEND ANY PROSECUTION BROUGHT UNDER
IT.  WHERE A PERSON DID NOT KNOW OF THE DUTY TO REGISTER AND WHERE
THERE WAS NO PROOF OF THE PROBABILITY OF SUCH KNOWLEDGE, HE MAY NOT BE
CONVICTED CONSISTENTLY WITH DUE PROCESS.  WERE IT OTHERWISE, THE EVIL
WOULD BE AS GREAT AS IT IS WHEN THE LAW IS WRITTEN IN PRINT TOO FINE TO
READ OR IN A LANGUAGE FOREIGN TO THE COMMUNITY.  REVERSED. 

MR. JUSTICE BURTON DISSENTS BECAUSE HE BELIEVES THAT, AS APPLIED TO
THIS APPELLANT, THE ORDINANCE DOES NOT VIOLATE HER CONSTITUTIONAL
RIGHTS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
WHITTAKER JOIN, DISSENTING. 

THE PRESENT LAWS OF THE UNITED STATES AND OF THE FORTY-EIGHT STATES
ARE THICK WITH PROVISIONS THAT COMMAND THAT SOME THINGS NOT BE DONE AND
OTHERS BE DONE, ALTHOUGH PERSONS CONVICTED UNDER SUCH PROVISIONS MAY
HAVE HAD NO AWARENESS OF WHAT THE LAW REQUIRED OR THAT WHAT THEY DID
WAS WRONGDOING.  THE BODY OF DECISIONS SUSTAINING SUCH LEGISLATION,
INCLUDING INNUMERABLE REGISTRATION LAWS, IS ALMOST AS VOLUMINOUS AS THE
LEGISLATION ITSELF.  THE MATTER IS SUMMARIZED IN UNITED STATES V.
BALINT, 258 U.S. 250, 252:  "MANY INSTANCES OF THIS ARE TO BE FOUND IN
REGULATORY MEASURES IN THE EXERCISE OF WHAT IS CALLED THE POLICE POWER
WHERE THE EMPHASIS OF THE STATUTE IS EVIDENTLY UPON ACHIEVEMENT OF SOME
SOCIAL BETTERMENT RATHER THAN THE PUNISHMENT OF THE CRIMES AS IN CASES
OF MALA IN SE." 

SURELY THERE CAN HARDLY BE A DIFFERENCE AS A MATTER OF FAIRNESS, OF
HARDSHIP, OR OF JUSTICE, IF ONE MAY INVOKE IT, BETWEEN THE CASE OF A
PERSON WHOLLY INNOCENT OF WRONGDOING, IN THE SENSE THAT HE WAS NOT
REMOTELY CONSCIOUS OF VIOLATING ANY LAW, WHO IS IMPRISONED FOR FIVE
YEARS FOR CONDUCT RELATING TO NARCOTICS, AND THE CASE OF ANOTHER PERSON
WHO IS PLACED ON PROBATION FOR THREE YEARS ON CONDITION THAT SHE PAY
$250, FOR FAILURE, AS A LOCAL RESIDENT, CONVICTED UNDER LOCAL LAW OF A
FELONY, TO REGISTER UNDER A LAW PASSED AS AN EXERCISE OF THE STATE'S
"POLICE POWER."* CONSIDERATIONS OF HARDSHIP OFTEN LEAD COURTS,
NATURALLY ENOUGH, TO ATTRIBUTE TO A STATUTE THE REQUIREMENT OF A
CERTAIN MENTAL ELEMENT - SOME CONSCIOUSNESS OF WRONGDOING AND KNOWLEDGE
OF THE LAW'S COMMAND - AS A MATTER OF STATUTORY CONSTRUCTION.  THEN,
TOO, A CRUELLY DISPROPORTIONATE RELATION BETWEEN WHAT THE LAW REQUIRES
AND THE SANCTION FOR ITS DISOBEDIENCE MAY CONSTITUTE A VIOLATION OF THE
EIGHTH AMENDMENT AS A CRUEL AND UNUSUAL PUNISHMENT, AND, IN RESPECT TO
THE STATES, EVEN OFFEND THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. 

*THIS CASE DOES NOT INVOLVE A PERSON WHO, CONVICTED OF A CRIME IN
ANOTHER JURISDICTION, MUST DECIDE WHETHER HE HAS BEEN CONVICTED OF A
CRIME THAT "WOULD HAVE BEEN PUNISHABLE AS A FELONY" HAD IT BEEN
COMMITTED IN CALIFORNIA.  APPELLANT COMMITTED FORGERY IN CALIFORNIA,
AND WAS CONVICTED UNDER CALIFORNIA LAW.  FURTHERMORE, SHE WAS CONVICTED
IN LOS ANGELES ITSELF, AND THERE SHE RESIDED FOR OVER SEVEN YEARS
BEFORE THE ARREST LEADING TO THE PRESENT PROCEEDINGS. 

BUT WHAT THE COURT HERE DOES IS TO DRAW A CONSTITUTIONAL LINE BETWEEN
A STATE'S REQUIREMENT OF DOING AND NOT DOING.  WHAT IS THIS BUT A
RETURN TO YEAR BOOK DISTINCTIONS BETWEEN FEASANCE AND NONFEASANCE - A
DISTINCTION THAT MAY HAVE SIGNIFICANCE IN THE EVOLUTION OF COMMON-LAW
NOTIONS OF LIABILITY, BUT IS INADMISSIBLE AS A LINE BETWEEN
CONSTITUTIONALITY AND UNCONSTITUTIONALITY.  ONE CAN BE CONFIDENT THAT
MR. JUSTICE HOLMES WOULD HAVE BEEN THE LAST TO DRAW SUCH A LINE.  WHAT
HE WROTE ABOUT "BLAMEWORTHINESS" IS WORTH QUOTING IN ITS CONTEXT: 

"IT IS NOT INTENDED TO DENY THAT CRIMINAL LIABILITY, AS WELL AS
CIVIL, IS FOUNDED ON BLAMEWORTHINESS.  SUCH A DENIAL WOULD SHOCK THE
MORAL SENSE OF ANY CIVILIZED COMMUNITY; OR, TO PUT IT ANOTHER WAY, A
LAW WHICH PUNISHED CONDUCT WHICH WOULD NOT BE BLAMEWORTHY IN THE
AVERAGE MEMBER OF THE COMMUNITY WOULD BE TOO SEVERE FOR THAT COMMUNITY
TO BEAR."  (THIS PASSAGE MUST BE READ IN THE SETTING OF THE BROADER
DISCUSSION OF WHICH IT IS AN ESSENTIAL PART.  HOLMES, THE COMMON LAW,
AT 49-50.) 

IF THE GENERALIZATION THAT UNDERLIES, AND ALONE CAN JUSTIFY, THIS
DECISION WERE TO BE GIVEN ITS RELEVANT SCOPE, A WHOLE VOLUME OF THE
UNITED STATES REPORTS WOULD BE REQUIRED TO DOCUMENT IN DETAIL THE
LEGISLATION IN THIS COUNTRY THAT WOULD FALL OR BE IMPAIRED.  I ABSTAIN
FROM ENTERING UPON A CONSIDERATION OF SUCH LEGISLATION, AND
ADJUDICATIONS UPON IT, BECAUSE I FEEL CONFIDENT THAT THE PRESENT
DECISION WILL TURN OUT TO BE AN ISOLATED DEVIATION FROM THE STRONG
CURRENT OF PRECEDENTS - A DERELICT ON THE WATERS OF THE LAW. 
ACCORDINGLY, I CONTENT MYSELF WITH DISSENTING. 
..END :








UNITED STATES V. SHOTWELL MANUFACTURING CO. 355 U.S. 233 


NO. 1.  ARGUED OCTOBER 17, 1957 - DECIDED DECEMBER 16, 1957 - 225 F.2D
394, JUDGMENT VACATED AND CASE REMANDED TO DISTRICT COURT. 


IN A JURY TRIAL IN A FEDERAL COURT, RESPONDENTS WERE CONVICTED OF
WILLFULLY ATTEMPTING TO EVADE FEDERAL CORPORATE INCOME TAXES.  THE
COURT OF APPEALS REVERSED ON THE GROUND THAT THEIR PRIVILEGE AGAINST
SELF-INCRIMINATION HAD BEEN VIOLATED BY THE ADMISSION OF EVIDENCE
OBTAINED AS A RESULT OF TIMELY VOLUNTARY DISCLOSURES MADE BY THEM IN
GOOD FAITH IN THE HOPE OF OBTAINING IMMUNITY FROM CRIMINAL PROSECUTION
UNDER A POLICY THEN FOLLOWED BY THE TREASURY DEPARTMENT.  AFTER
PETITIONING THIS COURT FOR CERTIORARI, THE GOVERNMENT MOVED THAT THE
CASE BE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS, ON THE
GROUND THAT NEWLY DISCOVERED EVIDENCE REVEALED THAT TESTIMONY AT THE
TRIAL CONCERNING THE TIMELINESS AND GOOD FAITH OF RESPONDENTS'
DISCLOSURES WAS PERJURED AND FRAUDULENT.  HELD:  THIS COURT WILL NOT
REVIEW A CASE ON THE BASIS OF A RECORD SO CHALLENGED AS BEING TAINTED
WITH PERJURY AND FRAUD; THE JUDGMENT OF THE COURT OF APPEALS IS
VACATED; AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR RE
EXAMINATION IN FURTHER PROCEEDINGS ON THE ISSUES RELATING TO
RESPONDENTS' ALLEGEDLY VOLUNTARY DISCLOSURES.  PP. 234-246. 

(A)  THIS COURT WILL NOT REVIEW A CASE WHEN THE RECORD IS CHALLENGED,
ON THE BASIS OF NEWLY DISCOVERED EVIDENCE, AS BEING SO TAINTED WITH
PERJURY AND FRAUD.  COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL
BOARD, 351 U.S. 115; MESAROSH V. UNITED STATES, 352 U.S. 1.  PP. 241
242. 

(B)  HERE A CONVINCING SHOWING HAS BEEN MADE THAT NEWLY DISCOVERED
EVIDENCE WILL SHOW THAT TESTIMONY CONCERNING CRUCIAL QUESTIONS AS TO
THE TIMELINESS AND GOOD FAITH OF RESPONDENTS' DISCLOSURES WAS PERJURED
AND FRAUDULENT; AND THIS COURT WILL NOT REVIEW THE DECISION OF THE
COURT OF APPEALS UNTIL THESE CHARGES HAVE BEEN RESOLVED.  PP. 242-243. 

(C)  SINCE RESPONDENTS WERE FOUND GUILTY BY THE JURY, THE MOTION TO
REMAND INVOLVES NO QUESTION OF DOUBLE JEOPARDY.  P. 243. 

(D)  THE GOVERNMENT'S NEW SHOWING DOES NOT RELATE TO AN ISSUE
SUBMITTED TO THE JURY BUT TO A PRELIMINARY QUESTION RELATING TO THE
ADMISSIBILITY OF EVIDENCE; AND, SINCE THE COURT OF APPEALS SET ASIDE
THE VERDICT ON THAT POINT, FAIR ADMINISTRATION OF JUSTICE REQUIRES THAT
THE GOVERNMENT HAVE AN OPPORTUNITY TO SHOW THAT THAT DECISION WAS
OBTAINED BY RESPONDENTS ON A CORRUPT RECORD ATTRIBUTABLE TO THEIR OWN
FRAUD.  PP. 243-244. 

(E)  THIS COURT WILL NOT SANCTION A RULE WHICH WOULD PROHIBIT
APPELLATE REVIEW UPON A RECORD SUSPECT OF TAINT WHEN THE TAINT MIGHT
OPERATE TO THE DISADVANTAGE OF THE DEFENDANTS, BUT WHICH WOULD REQUIRE
REVIEW WHEN THE TAINT MIGHT OPERATE TO THEIR ADVANTAGE.  P. 244. 

(F)  SINCE THE CHARGES AS TO THE INTEGRITY OF THE RECORD MUST BE
FULLY AIRED AND THE DISTRICT COURT IS THE PROPER FORUM FOR THAT
PURPOSE, IT WOULD BE UNNECESSARY AND WASTEFUL TO REMAND THIS CASE TO
THE COURT OF APPEALS.  PP. 244-245. 

(G)  ON REMAND, ADDITIONAL EVIDENCE TO BE PRESENTED BY BOTH SIDES
WILL BE CONFINED TO THE ISSUE WHETHER CERTAIN EVIDENCE ADMITTED AT THE
TRIAL SHOULD HAVE BEEN SUPPRESSED; AND THE DISTRICT COURT WILL MAKE
APPROPRIATE NEW FINDINGS OF FACT ON THAT ISSUE AND ENTER APPROPRIATE
NEW FINAL JUDGMENTS ON THE BASIS OF SUCH FINDINGS.  PP. 245-246. 

UNITED STATES V. SHOTWELL MANUFACTURING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN UNUSUAL QUESTION INVOLVING THE INTEGRITY OF A
CRIMINAL TRIAL IN THE FEDERAL COURTS. 

THE SOLICITOR GENERAL HAS FILED A MOTION IN THIS COURT TO REMAND THE
CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.  THIS MOTION IS
BASED ON A PROFFER OF EVIDENCE ALLEGED TO HAVE COME INTO THE POSSESSION
OF THE GOVERNMENT AFTER THE UNITED STATES HAD PETITIONED FOR CERTIORARI
TO REVIEW A DECISION OF THE COURT OF APPEALS SETTING ASIDE THE
CONVICTION OF THE RESPONDENTS.  IT IS CLAIMED THAT SUCH EVIDENCE SHOWS
THAT THE DECISION OF THE COURT OF APPEALS WAS BASED UPON A PERJURIOUS
RECORD ATTRIBUTABLE TO THE FRAUD OF THE RESPONDENTS. 

A CLEAR APPRECIATION OF BOTH THE PROCEEDINGS IN THE LOWER COURTS AND
THE PECULIAR CIRCUMSTANCES IN WHICH THE GOVERNMENT'S MOTION ARISES IS
ESSENTIAL TO AN UNDERSTANDING OF WHY WE BELIEVE THE MOTION TO REMAND
MUST BE GRANTED. 

IN 1953 THE RESPONDENTS AND FRANK J. HUEBNER, AFTER A JURY TRIAL IN
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS,
WERE CONVICTED OF WILLFULLY ATTEMPTING TO EVADE THE 1945 AND 1946
FEDERAL CORPORATE INCOME TAXES OF THE SHOTWELL MANUFACTURING COMPANY. 
(FN1)  PRIOR TO TRIAL THEY MOVED FOR DISMISSAL OF THE INDICTMENT ON THE
GROUND THAT THEIR VOLUNTARY AND TIMELY DISCLOSURE OF THESE TAX
DERELICTIONS TO THE TAXING AUTHORITIES ENTITLED THEM TO IMMUNITY FROM
PROSECUTION UNDER THE TREASURY'S FORMER "VOLUNTARY DISCLOSURE POLICY." 
(FN2)  THIS MOTION WAS DENIED BY THE DISTRICT COURT AFTER A PRETRIAL
HEARING.  RESPONDENTS AND HUEBNER THEN MOVED, ON THE SAME GROUND, FOR
SUPPRESSION OF THE EVIDENCE OBTAINED FROM THEM BY THE TAXING
AUTHORITIES AS A RESULT OF THEIR ALLEGED DISCLOSURE.  AFTER A FURTHER
PRETRIAL HEARING, THE DISTRICT COURT ALSO DENIED THIS MOTION, LATER
FILING AN OPINION IN WHICH IT FOUND THAT THE DISCLOSURE WAS NOT MADE IN
GOOD FAITH.  (FN3) 

ON APPEAL, THE COURT OF APPEALS AFFIRMED AS TO THE DISMISSAL MOTION
BUT REVERSED AS TO THE SUPPRESSION MOTION, SET ASIDE THE CONVICTIONS,
AND REMANDED THE CASE FOR A NEW TRIAL.  225 F.2D 394.   (FN4)  THE
COURT OF APPEALS FOUND THAT THE RESPONDENTS' DISCLOSURE WAS BONA FIDE,
AND ALSO RULED THAT THE DISCLOSURE WAS TIMELY, AN ISSUE WHICH THE
DISTRICT COURT HAD NOT REACHED.  (FN5)  THE GOVERNMENT PETITIONED US
FOR CERTIORARI ON THE SUPPRESSION ISSUE AND THE RESPONDENTS AND HUEBNER
CROSS-PETITIONED ON THE DISMISSAL ISSUE.  (FN6)  THEREAFTER, THE
GOVERNMENT FILED ITS MOTION TO REMAND, ON WHICH, AS LATER AMENDED AND
SUPPLEMENTED, RESPONDENTS AND HUEBNER JOINED ISSUE BY THE FILING OF
ANSWERS.  (FN7)  CONSIDERING THAT THE MATTERS PRESENTED BY THE MOTION
TO REMAND RAISED AN IMPORTANT ISSUE AFFECTING THE PROPER ADMINISTRATION
OF JUSTICE IN THE FEDERAL COURTS, WE GRANTED THE GOVERNMENT'S PETITION
FOR CERTIORARI, "LIMITED TO THE ISSUES RAISED IN THE AMENDED MOTION TO
REMAND AND SUPPLEMENT THERETO AND THE RESPONDENTS' ANSWER TO THE
AMENDED MOTION TO REMAND."  (FN8)  352 U.S. 997.  WE DENIED THE CROSS
PETITION FOR CERTIORARI.  352 U.S. 998. 

FOR AN UNDERSTANDING OF THE SIGNIFICANCE OF THE NEWLY DISCOVERED
EVIDENCE (FN9) PROFFERED BY THE GOVERNMENT SOME KNOWLEDGE IS REQUIRED
OF THE POSITION TAKEN BY THE DEFENDANTS IN THE DISTRICT COURT ON THE
SUPPRESSION ISSUE.  THE SUBSTANCE OF THAT POSITION WAS PRESENTED BY
LEON J. BUSBY, SHOTWELL'S ACCOUNTANT, WHO TESTIFIED AT BOTH THE HEARING
ON THE MOTION TO SUPPRESS AND AT THE TRIAL.  HE STATED THAT THE
SHOTWELL COMPANY IN EACH OF THE YEARS 1945 AND 1946 HAD RECEIVED
SUBSTANTIAL CASH PAYMENTS FOR BLACK-MARKET CANDY SALES ABOVE O.P.A.
CEILING PRICES; (FN10) THAT THESE RECEIPTS WERE NOT RECORDED ON
SHOTWELL'S BOOKS AND WERE NOT REPORTED IN ITS INCOME TAX RETURNS; THAT
HE FIRST LEARNED OF THESE FACTS IN THE COURSE OF CONVERSATIONS WITH H.
STANLEY GRAFLUND, SHOTWELL'S COMPTROLLER, DURING A TRIP THEY TOOK TO
NEW YORK EARLY IN JANUARY 1948; THAT IMMEDIATELY UPON HIS RETURN TO
CHICAGO HE DISCUSSED THE MATTER WITH RESPONDENTS CAIN AND SULLIVAN;
THAT HE RECOMMENDED DISCLOSING THE OMISSIONS TO THE TAXING AUTHORITIES;
AND THAT, AT THE DIRECTION OF RESPONDENTS, HE REVEALED THE ENTIRE
AFFAIR TO ERNEST J. SAUBER, DEPUTY COLLECTOR IN CHICAGO, IN A SERIES OF
CONFERENCES BEGINNING IN THE LATTER PART OF JANUARY 1948, AT ONE OR
MORE OF WHICH CONFERENCES HE WAS ACCOMPANIED BY CAIN.  HE ALSO
TESTIFIED THAT THEREAFTER, ACTING UNDER SAUBER'S INSTRUCTIONS AND
ASSURANCES THAT ONLY A CIVIL LIABILITY WAS INVOLVED, HE AND HIS STAFF,
WITH THE ASSISTANCE OF CAIN, HUEBNER AND GRAFLUND, CONDUCTED AN
EXHAUSTIVE INVESTIGATION OVER A PERIOD OF SEVERAL MONTHS TO RECONSTRUCT
THE SHOTWELL FIGURES ON THE BLACK-MARKET TRANSACTIONS.  HE SAID THAT
THESE FIGURES WERE FURNISHED IN AUGUST 1948 TO A REVENUE AGENT FOR
SCRUTINY. 

SAUBER AND CAIN GAVE SIMILAR TESTIMONY, EXCEPT THAT SAUBER FIXED
BUSBY'S FIRST VISIT TO HIM AT ABOUT THE MIDDLE OF MARCH 1948.  CAIN'S
EXPLANATION OF SHOTWELL'S FAILURE TO REPORT THE BLACK-MARKET RECEIPTS
IN ITS INCOME TAX RETURNS WAS THAT HE BELIEVED SUCH RECEIPTS WERE NOT
TAXABLE SINCE THEY WERE USED BY SHOTWELL TO PURCHASE BLACK-MARKET
SUPPLIES (FN11) AND THEREFORE GAVE RISE TO NO PROFIT.   (FN12) 

IN SUPPORT OF ITS MOTION THE GOVERNMENT HAS FILED WITH THE COURT THE
AFFIDAVITS OF HUEBNER AND GRAFLUND, WHICH THEY EXECUTED AFTER THE
GOVERNMENT FILED ITS PETITION FOR CERTIORARI.  THESE AFFIDAVITS PAINT A
SHARPLY DIFFERENT PICTURE OF THE ENTIRE AFFAIR; INDEED, THEY FLATLY
CONTRADICT THE TALE UNFOLDED ON BEHALF OF THE RESPONDENTS IN THE
DISTRICT COURT.  MORE SPECIFICALLY:  (1) GRAFLUND SWEARS THAT THE FIRST
TIME HE DISCUSSED THE BLACK-MARKET TRANSACTIONS WITH BUSBY WAS AT
BUSBY'S HOME IN LATE JUNE 1948, AT WHICH TIME BUSBY GAVE NO INDICATION
THAT HE HAD PREVIOUSLY KNOWN OF THESE TRANSACTIONS; (FN13) (2) GRAFLUND
AND HUEBNER SWEAR THAT AT NO TIME PRIOR TO A MEETING HELD IN JULY 1948
WERE THEY EVER ADVISED OR LED TO BELIEVE BY RESPONDENTS THAT SHOTWELL'S
BLACK-MARKET RECEIPTS HAD BEEN DISCLOSED TO THE TREASURY; (3) HUEBNER
SWEARS THAT IT WAS AT THIS JULY 1948 MEETING THAT CAIN FIRST TOLD HIM
THAT A VOLUNTARY DISCLOSURE WOULD BE MADE, AND THAT CAIN ALSO GAVE HIM
TO UNDERSTAND THAT IT HAD BEEN "AGREED" THAT THE DATE OF THE DISCLOSURE
"WOULD BE SET AT JUNE 15, 1948;" (FN14) (4) GRAFLUND AND HUEBNER SWEAR
THAT PRIOR TO THE MIDDLE OF JULY 1948 NO WORK WAS DONE BY ANYONE TO
ASSEMBLE RECORDS OR DATA FOR THE PURPOSE OF MAKING A DISCLOSURE TO THE
TAX AUTHORITIES, AND THAT THE ALLEGED OFFSETTING PAYMENTS FOR BLACK
MARKET SUPPLIES WERE IN FACT CONCOCTED "OUT OF THIN AIR" AT THE JULY
MEETING; AND (5) HUEBNER SWEARS THAT IN JULY AND AUGUST 1948 HE GAVE
CAIN $10,000 WHICH CAIN SAID HE NEEDED "TO FIX THE TAX DIFFICULTY WE
WERE IN."  (FN15) HUEBNER SAYS IN HIS AFFIDAVIT THAT HE WAS NOT ASKED
TO TESTIFY IN THE DISTRICT COURT "BECAUSE I HAD STATED I WOULD NOT LIE
ON THE STAND." 

IT IS OBVIOUS THAT THE GOVERNMENT'S NEW EVIDENCE CASTS THE DARKEST
SHADOW UPON THE TRUTHFULNESS OF THE DISCLOSURE TESTIMONY GIVEN BY OR ON
BEHALF OF THE RESPONDENTS IN THE DISTRICT COURT.  IF TRUE, IT INDICATES
THAT WHAT THE RESPONDENTS HAVE SOUGHT TO REPRESENT IN THE DISTRICT
COURT, THE COURT OF APPEALS, AND IN THIS COURT AS A VOLUNTARY
DISCLOSURE, MADE IN A TIMELY MANNER AND IN GOOD FAITH, WAS INSTEAD BUT
A FURTHER STEP IN A CONSPIRACY TO "FIX" SHOTWELL'S TAX DIFFICULTIES,
POSSIBLY INVOLVING THE CORRUPTION OF GOVERNMENT OFFICIALS, (FN16) AND
CERTAINLY ENTAILING AN ATTEMPT TO PERPETRATE A FRAUD UPON THE COURTS. 
WERE WE TO UNDERTAKE TO REVIEW THE COURT OF APPEALS UPON A RECORD AS
SUSPECT AS THIS, WE MIGHT VERY WELL BE LENDING OURSELVES TO THE
CONSUMMATION OF A FRAUD WHICH MAY ALREADY HAVE MADE THE COURT OF
APPEALS ITS UNWITTING VICTIM.  IN THESE CIRCUMSTANCES IT IS IMPERATIVE
THAT THE CASE BE REMANDED TO THE DISTRICT COURT FOR A FULL EXPLORATION
OF WHERE THE TRUTH LIES BEFORE THE CASE IS ALLOWED TO PROCEED FURTHER. 
THE INTEGRITY OF THE JUDICIAL PROCESS DEMANDS NO LESS. 

THE PATH TO OUR DECISION IS CLEARLY MARKED BY THIS COURT'S ACTIONS
AND PRONOUNCEMENTS IN TWO RECENT CASES, COMMUNIST PARTY V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, 351 U.S. 115, AND MESAROSH V. UNITED STATES,
352 U.S. 1.  IN EACH CASE THE COURT REFUSED TO CONSIDER THE QUESTIONS
PRESENTED FOR REVIEW IN THE FACE OF A CHALLENGE TO THE INTEGRITY OF THE
RECORD BASED ON NEWLY DISCOVERED EVIDENCE.   IN COMMUNIST PARTY THE
COURT REMANDED THE CASE TO THE BOARD WITH DIRECTIONS TO RESOLVE THE
CHARGES OF TAINT, AND TO MAKE A FRESH DETERMINATION ON THE MERITS, IF
TAINT WERE FOUND.  (FN17)  IN MESAROSH THE COURT, BELIEVING THAT THE
RECORD CLEARLY DEMONSTRATED THAT A KEY GOVERNMENT WITNESS HAD BEEN
WHOLLY DISCREDITED, TOOK MORE DRASTIC ACTION BY REVERSING THE
CONVICTIONS OF THE PETITIONERS AND REMANDING THE CASE TO THE DISTRICT
COURT FOR A NEW TRIAL.  THE BASIC REASON FOR THE COURT'S ACTION IN BOTH
CASES WAS MADE MANIFEST IN ITS OPINIONS.  IN COMMUNIST PARTY, SUPRA, AT
PP. 124-125, THE COURT SAID: 

"THE UNTAINTED ADMINISTRATION OF JUSTICE IS CERTAINLY ONE OF THE MOST
CHERISHED ASPECTS OF OUR INSTITUTIONS.  ITS OBSERVANCE IS ONE OF OUR
PROUDEST BOASTS.  THIS COURT IS CHARGED WITH SUPERVISORY FUNCTIONS IN
RELATION TO PROCEEDINGS IN THE FEDERAL COURTS.  SEE MCNABB V. UNITED
STATES, 318 U.S. 332.  THEREFORE, FASTIDIOUS REGARD FOR THE HONOR OF
THE ADMINISTRATION OF JUSTICE REQUIRES THE COURT TO MAKE CERTAIN THAT
THE DOING OF JUSTICE BE MADE SO MANIFEST THAT ONLY IRRATIONAL OR
PERVERSE CLAIMS OF ITS DISREGARD CAN BE ASSERTED  ...  .  WE CANNOT
PASS UPON A RECORD CONTAINING SUCH CHALLENGED TESTIMONY.  WE FIND IT
NECESSARY TO DISPOSE OF THE CASE ON THE GROUNDS WE DO, NOT IN ORDER TO
AVOID A CONSTITUTIONAL ADJUDICATION BUT BECAUSE THE FAIR ADMINISTRATION
OF JUSTICE REQUIRES IT." 

IN MESAROSH, SUPRA, AT P. 14, THE COURT SAID: 

"THIS IS A FEDERAL CRIMINAL CASE, AND THIS COURT HAS SUPERVISORY
JURISDICTION OVER THE PROCEEDINGS OF THE FEDERAL COURTS.  (CITING
MCNABB, SUPRA, IN A FOOTNOTE.)  IF IT HAS ANY DUTY TO PERFORM IN THIS
REGARD, IT IS TO SEE THAT THE WATERS OF JUSTICE ARE NOT POLLUTED. 
POLLUTION HAVING TAKEN PLACE HERE, THE CONDITION SHOULD BE REMEDIED AT
THE EARLIEST OPPORTUNITY." 

A CONVINCING SHOWING IS OF COURSE NECESSARY TO BRING THESE PRINCIPLES
INTO PLAY.  WE THINK THAT SUCH A SHOWING HAS BEEN MADE HERE.  THE NEWLY
DISCOVERED EVIDENCE CONTAINED IN THE AFFIDAVITS FROM THE PROSPECTIVE
WITNESSES GRAFLUND AND HUEBNER CUTS TO THE VERY HEART OF THE TESTIMONY
ADDUCED BY RESPONDENTS TO SHOW THAT THEY MADE A TIMELY AND BONA FIDE
DISCLOSURE TO THE TREASURY, THE SOLE ISSUE INVOLVED IN THE SUPPRESSION
HEARINGS AND THE ISSUE ON WHICH THE OUTCOME OF THE CASE IN THE COURT OF
APPEALS TURNED.  IT IS PLAIN THAT EITHER THE TESTIMONY IN THE DISTRICT
COURT WAS UNTRUE OR THESE AFFIDAVITS THEMSELVES ARE THE PRODUCT OF
FRAUD.  THIS IS A MATTER FOR THE DISTRICT COURT TO DETERMINE.  ONE
THING IS CLEAR.  THIS COURT CANNOT BE ASKED TO REVIEW THE DECISION OF
THE COURT OF APPEALS UNTIL THESE CHARGES HAVE BEEN RESOLVED. 

IN BOTH THE COMMUNIST PARTY AND MESAROSH CASES, SUPRA, THE ACTION OF
THE COURT ENURED TO THE BENEFIT OF THE DEFENDANTS.  IN THIS INSTANCE
THE FURTHER PROCEEDINGS BELOW MAY WORK TO THE ADVANTAGE OF THE
GOVERNMENT.  (FN18)  IN THE CIRCUMSTANCES OF THIS CASE WE THINK THAT
THE DISTINCTION MAKES NO DIFFERENCE.  BECAUSE THEY WERE FOUND GUILTY BY
THE JURY, RESPONDENTS CONCEDE, AS THEY MUST, THAT THE MOTION TO REMAND
INVOLVES NO QUESTION OF DOUBLE JEOPARDY.  SEE UNITED STATES V. BALL,
163 U.S. 662, 672.  THEIR OBJECTION THAT IT IS "UNFAIR" TO ALLOW THE
GOVERNMENT AT THIS STAGE OF THE PROCEEDINGS TO "BOLSTER" THE RECORD
RELATING TO THE SUPPRESSION ISSUE IS LIKEWISE UNACCEPTABLE.  IT IS
UNDENIABLE, OF COURSE, THAT UPON APPELLATE REVERSAL OF A CONVICTION THE
GOVERNMENT IS NOT LIMITED AT A NEW TRIAL TO THE EVIDENCE PRESENTED AT
THE FIRST TRIAL, BUT IS FREE TO STRENGTHEN ITS CASE IN ANY WAY IT CAN
BY THE INTRODUCTION OF NEW EVIDENCE.  WE THINK THAT IN THE PECULIAR
CIRCUMSTANCES OF THIS CASE THE FAIR ADMINISTRATION OF JUSTICE REQUIRES
THAT THE GOVERNMENT SHOULD HAVE A SIMILAR OPPORTUNITY HERE.  FOR IF THE
GOVERNMENT'S EVIDENCE IS FOUND TO BE TRUE, IT WOULD THEN APPEAR THAT
THE COURT OF APPEALS' DECISION SETTING ASIDE THE VERDICT WAS OBTAINED
BY THE RESPONDENTS ON A CORRUPT RECORD ATTRIBUTABLE TO THEIR OWN
FRAUD.  IN THE FURTHER PROCEEDINGS IN THE DISTRICT COURT THE
RESPONDENTS WILL OF COURSE HAVE A RECIPROCAL OPPORTUNITY TO SUSTAIN THE
VALIDITY OF THEIR ASSERTED VOLUNTARY DISCLOSURES. 

WE SHOULD NOT LOSE SIGHT OF THE FACT THAT THE GOVERNMENT'S NEW
SHOWING DOES NOT RELATE TO AN ISSUE SUBMITTED TO THE JURY IN THE
PROCEEDINGS BELOW, BUT RATHER TO A PRELIMINARY QUESTION AS TO THE
ADMISSIBILITY OF EVIDENCE.  (FN19)  HENCE, TO GRANT THE GOVERNMENT'S
MOTION IS NOT TO PERMIT IT TO "BOLSTER" THE EVIDENCE UPON WHICH THE
VERDICT OF GUILTY WAS RETURNED BY THE JURY IN THIS CASE.  THAT VERDICT
CLEARLY MUST STAND OR FALL ON THE SUFFICIENCY OF THE EVIDENCE ALREADY
INTRODUCED AT THE TRIAL.    IN THESE CIRCUMSTANCES, ACCEPTANCE OF THE
RESPONDENTS' POSITION ON THIS MOTION WOULD BE TANTAMOUNT TO SANCTIONING
A RULE WHICH WOULD PROHIBIT APPELLATE REVIEW UPON A RECORD SUSPECT OF
TAINT, IF THE TAINT MIGHT OPERATE TO THE DISADVANTAGE OF THE
DEFENDANTS, BUT WHICH WOULD NEVERTHELESS REQUIRE REVIEW OF THE TAINT
MIGHT OPERATE TO THEIR ADVANTAGE.  WE CANNOT SUBSCRIBE TO THAT QUIXOTIC
RESULT.  THE FAIR ADMINISTRATION OF JUSTICE IS NOT SUCH A ONE-WAY
STREET. 

THE RESPONDENTS CONTEND THAT THE MOTION TO REMAND SHOULD ORIGINALLY
HAVE BEEN ADDRESSED TO THE COURT OF APPEALS, AND THAT WE SHOULD NOW
SEND THE GOVERNMENT BACK TO THAT COURT.  (FN20)  THIS CONTENTION IS
ESSENTIALLY ONE ADDRESSED TO OUR DISCRETION, AND IN THE CIRCUMSTANCES
OF THIS CASE WE FIND IT UNAVAILING.  THE GOVERNMENT WAS NOT IN A
POSITION TO MAKE THE MOTION UNTIL AFTER ITS PETITION FOR CERTIORARI HAD
BEEN FILED IN THIS COURT.  THE COURSE OF THIS LITIGATION HAS ALREADY
BEEN PROTRACTED.  WE ARE ABUNDANTLY SATISFIED THAT THE CHARGES AS TO
THE INTEGRITY OF THE RECORD MUST BE FULLY AIRED, AND THAT THE PROPER
FORUM FOR THIS IS THE DISTRICT COURT BECAUSE OF ITS INTIMATE
FAMILIARITY WITH THE RECORD AND ITS FACILITIES FOR SIFTING CONTROVERTED
FACTS.  IN THIS STATE OF AFFAIRS WE THINK THAT IT WOULD BE BOTH
UNNECESSARY AND WASTEFUL TO REMIT THE GOVERNMENT TO THE COURT OF
APPEALS.  CF.  MESAROSH, SUPRA, AT P. 13. 

WE CONCLUDE WITH A WORD ABOUT THE NATURE OF THE FURTHER PROCEEDINGS
IN THE DISTRICT COURT.  THE ADDITIONAL EVIDENCE TO BE PRESENTED BY BOTH
SIDES WILL BE CONFINED TO THE SUPPRESSION ISSUE.  THE DISTRICT COURT
WILL MAKE SUCH NEW FINDINGS OF FACT ON THIS ISSUE AS MAY BE APPROPRIATE
IN LIGHT OF THE FURTHER EVIDENCE AND THE ENTIRE EXISTING RECORD (SEE
CARROLL V. UNITED STATES, 267 U.S. 132, 162), INCLUDING FINDINGS ON THE
QUESTION OF THE TIMELINESS OF RESPONDENTS' ALLEGED DISCLOSURES.  (FN21)
IF THE DISTRICT COURT DECIDES, ON THE BASIS OF ITS NEW FINDINGS, TO
ADHERE TO ITS ORIGINAL DECISION ON THE MOTION TO SUPPRESS, IT WILL THEN
ENTER NEW FINAL JUDGMENTS BASED UPON THE RECORD AS SUPPLEMENTED BY ITS
NEW FINDINGS, THEREBY PRESERVING TO ALL PARTIES THE RIGHT TO SEEK
FURTHER APPELLATE REVIEW, INCLUDING RESPONDENTS' RIGHT TO HAVE REVIEWED
BY THE COURT OF APPEALS ALLEGED ERRORS IN THE ORIGINAL TRIAL WHICH THAT
COURT DID NOT REACH IN THE PREVIOUS APPEAL.  IF, ON THE OTHER HAND, THE
DISTRICT COURT CONCLUDES AFTER THE FURTHER PROCEEDINGS THAT THE MOTION
TO SUPPRESS SHOULD HAVE BEEN GRANTED, IT WOULD THEN BECOME ITS DUTY TO
ACCORD THE RESPONDENTS A NEW TRIAL. 

IN ACCORDANCE WITH THE VIEWS SET FORTH IN THIS OPINION, WE MAKE THE
FOLLOWING DISPOSITION OF THIS CASE:  (1) THIS COURT'S ORDER OF FEBRUARY
25, 1957, WHICH GRANTED WITH LIMITATIONS THE GOVERNMENT'S PETITION FOR
CERTIORARI, IS VACATED AND SUCH PETITION IS GRANTED WITHOUT
RESTRICTION; (2) THE JUDGMENT OF THE COURT OF APPEALS IS VACATED; AND
(3) THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  INTERNAL REVENUE CODE OF 1939, SEC. 145(B), 53 STAT. 63.  THE
SHOTWELL COMPANY MANUFACTURED CANDY AND MARSHMALLOWS.  CAIN WAS
PRESIDENT, SULLIVAN, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, AND
HUEBNER, VICE PRESIDENT.  HUEBNER IS NO LONGER A RESPONDENT HERE.  SEE
NOTES 6 AND 7, INFRA. 

FN2  UNDER THAT POLICY, FIRST ANNOUNCED BY THE TREASURY DEPARTMENT IN
1945, THE DEPARTMENT DID NOT REFER TO THE DEPARTMENT OF JUSTICE FOR
PROSECUTION CASES OF INTENTIONAL INCOME TAX EVASION WHERE THE TAXPAYERS
HAD MADE A CLEAN BREAST OF THINGS TO THE TREASURY BEFORE ANY
INVESTIGATION HAD BEEN INITIATED BY THE REVENUE SERVICE.  THIS POLICY
WAS SET FORTH IN VARIOUS INFORMAL ANNOUNCEMENTS BY TREASURY OFFICIALS,
BUT WAS NEVER FORMALIZED BY STATUTE OR REGULATION.  THE POLICY WAS
ABANDONED IN JANUARY 1952. 

FN3  THE PROPRIETY OF THIS PRETRIAL PROCEDURE IS NOT BEFORE US. 

FN4  THE COURT OF APPEALS DID NOT PASS ON OTHER CONTENTIONS MADE BY
THE RESPONDENTS IN SUPPORT OF A REVERSAL OF THEIR CONVICTION. 

FN5  MORE SPECIFICALLY, THE COURT OF APPEALS HELD THAT THERE WAS AN
EFFECTIVE VOLUNTARY DISCLOSURE AND THAT THE GOVERNMENT'S USE OF THE
EVIDENCE THEREBY OBTAINED FROM THE RESPONDENTS VIOLATED THEIR RIGHTS
UNDER THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT.  THE
DISTRICT COURT SIMPLY HELD THAT THE ALLEGED VOLUNTARY DISCLOSURE WAS
DEFECTIVE, AND DID NOT DISCUSS THE FIFTH AMENDMENT.  IN THE PRESENT
POSTURE OF THIS CASE WE DO NOT REACH THE CORRECTNESS OF THESE RULINGS
OF THE TWO LOWER COURTS, OR ANY OTHER QUESTION GOING TO THE MERITS OF
THE RESPONDENTS' CONVICTION. 

FN6  WE DEFERRED CONSIDERATION OF THE PETITION AND CROSS-PETITIONS
FOR CERTIORARI FOR SOME MONTHS ON THE BASIS OF REPRESENTATIONS MADE BY
THE SOLICITOR GENERAL IN HIS LETTERS OF DECEMBER 6, 1955, AND JUNE 1,
1956, WHICH CULMINATED IN THE FILING OF THE GOVERNMENT'S MOTION TO
REMAND.  SEE 351 U.S. 980.  AS ORIGINALLY FILED, THE CROSS-PETITION WAS
CONDITIONAL ON THE GOVERNMENT'S PETITION BEING GRANTED.  AFTER THE
GOVERNMENT MOVED TO REMAND, RESPONDENTS WITHDREW THE CONDITIONAL
LIMITATION, AND HUEBNER WITHDREW HIS CROSS-PETITION IN ITS ENTIRETY. 

FN7  HUEBNER LATER WITHDREW HIS ANSWER AND CONSENTED TO THE
GOVERNMENT'S MOTION. 

FN8  RESPONDENTS POINT OUT THAT THIS LIMITATION OF OUR WRIT IN EFFECT
AMOUNTED TO A DENIAL OF THE GOVERNMENT'S PETITION FOR CERTIORARI, AND
THEREFORE THAT THE MOTION TO REMAND, WHICH WAS NOT BEFORE THE COURT OF
APPEALS, MUST BE REGARDED AS AN ATTEMPT TO INVOKE AN ORIGINAL
JURISDICTION WHICH WE DO NOT POSSESS.  WE SHALL DISPOSE OF RESPONDENTS'
POINT BY VACATING OUR LIMITED WRIT AND GRANTING, NUNC PRO TUNC, THE
GOVERNMENT'S PETITION FOR CERTIORARI, WITHOUT RESTRICTION.  THIS
REMOVES ALL QUESTION AS TO OUR JURISDICTION, 28 U.S.C. SEC. 2106;
MESAROSH V. UNITED STATES, 352 U.S. 1, AND PREJUDICES NEITHER PARTY
BECAUSE WE SHALL DECIDE ONLY THE ISSUES RAISED BY THE MOTION TO
REMAND. 

FN9  RESPONDENTS HAVE MADE NO SUCH SHOWING IN OPPOSITION TO THE
GOVERNMENT'S MOTION AS WOULD JUSTIFY OUR QUESTIONING THE ACCURACY OF
THE SOLICITOR GENERAL'S REPRESENTATION THAT THE GOVERNMENT'S PROFFERED
EVIDENCE IS "NEWLY DISCOVERED." 

FN10  THE GOVERNMENT PUTS THE FIGURE AT SOME $380,000; THE
RESPONDENTS' FIGURE IS ABOUT $160,000. 

FN11  EXCEPT FOR THE AMOUNT OF $6,000 WHICH WAS REPORTED IN THE
SHOTWELL RETURNS. 

FN12  ALTHOUGH THE TREASURY POLICY AT THE TIME DENIED DEDUCTIBILITY
TO SUCH BLACK-MARKET EXPENDITURES, THE COURTS LATER HELD THAT THIS KIND
OF EXPENDITURE WAS DEDUCTIBLE.  SEE SULLENGER V. COMMISSIONER, 11 T.C.
1076. 

FN13  ACCORDING TO GRAFLUND'S AFFIDAVIT, IT WOULD APPEAR THAT THE
RESPONDENTS WERE SPURRED INTO ACTION AFTER SAM KRANE, A SPECIAL AGENT
OF THE INTERNAL REVENUE SERVICE, VISITED THE SHOTWELL OFFICE ON JUNE
21, 1948.  THE AFFIDAVIT STATES THAT KRANE REQUESTED RECORDS AND
INFORMATION RELATING TO SHOTWELL'S TRANSACTIONS WITH ONE DAVID G.
LUBBEN, FROM WHOM SHOTWELL HAD BEEN RECEIVING LARGE SUMS OF MONEY WHICH
WERE NOT RECORDED IN ITS REGULAR BOOKS; THAT GRAFLUND MADE CERTAIN
RECORDS AVAILABLE TO KRANE AND WAS "CRITICIZED" BY THE RESPONDENTS FOR
HAVING DONE SO; AND THAT GRAFLUND CONFERRED WITH BUSBY WITHIN A FEW
DAYS AFTER KRANE'S VISIT. 

FN14  IN HIS AFFIDAVIT HUEBNER STATES:  "ON NOVEMBER 13, 1952, SAUBER
TESTIFIED AT THE HEARING ON THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
THAT BUSBY AND CAIN HAD CONTACTED HIM IN MARCH, 1948.  AFTER HEARING
SAUBER TESTIFY, I TOLD CAIN I THOUGHT THE VOLUNTARY DISCLOSURE DATE WAS
SUPPOSED TO BE JUNE 15, 1948.  CAIN SAID TO ME, 'SSSHHH]  THERE IS
NOBODY THAT KNOWS ANYTHING ABOUT THIS.  KEEP QUIET.'" 

FN15  THE SOLICITOR GENERAL REPRESENTS THAT IF THE MOTION TO REMAND
IS GRANTED REVENUE AGENT JOSEPH M. LIMA WILL TESTIFY THAT ON JULY 30,
1948 HE WAS INSTRUCTED BY HIS GROUP SUPERVISOR, RALPH JOHNSON, TO MAKE
AN IMMEDIATE AUDIT OF SHOTWELL'S 1946 RETURN; THAT THEREAFTER HE WAS
INSTRUCTED BY JOHNSON TO ALLOW (AS OFFSETS) OVER-CEILING PURCHASES
TOTALING MORE THAN $300,000, WHICH WERE WHOLLY UNSUBSTANTIATED AND
WHOSE ALLOWANCE WAS CONTRARY TO THE EXISTING REVENUE SERVICE POLICY;
AND THAT HE THEN PREPARED A REPORT SHOWING A TAX DEFICIENCY FOR 1945
AND 1946 OF ABOUT $20,000, WHICH REPORT HE DESTROYED AT JOHNSON'S
DIRECTION IN SEPTEMBER 1948, AFTER THE INTELLIGENCE UNIT OF THE SERVICE
HAD MADE INQUIRIES ABOUT THE CASE.  IN THIS CONNECTION HUEBNER STATES
IN HIS AFFIDAVIT: 

"CAIN ALSO TOLD ME, SOMETIME IN ABOUT LATE JULY, 1948, THAT HE WAS
ABOUT TO SETTLE THE TAX CASE.  SHORTLY THEREAFTER, CAIN TOLD ME HE HAD
SETTLED THE TAX CASE FOR A TAX DEFICIENCY OF $20,000.00. 

"IN OCTOBER, 1948, BUSBY TOLD ME THAT THERE HAD BEEN A MEETING IN THE
FRAUD DIVISION AT THE INTERNAL REVENUE OFFICE AND THAT HELL HAD BROKEN
LOOSE; THAT SOME INTERNAL REVENUE PEOPLE HAD A HECK OF A TIME
DESTROYING PAPERS THAT HAD BEEN MADE UP FOR THE PURPOSE OF BILLING
SHOTWELL FOR TAXES." 

FN16  SEE NOTE 15, SUPRA. 

FN17  SECTION 14(A) OF THE SUBVERSIVE ACTIVITIES CONTROL ACT
EXPRESSLY AUTHORIZES COURTS OF APPEALS TO REMAND CASES TO THE BOARD FOR
THE TAKING OF FURTHER EVIDENCE.  64 STAT. 987, AT 1001-1002.  OUR
AUTHORITY TO ACT IN SIMILAR FASHION IS FOUND IN THE BROAD PROVISIONS OF
28 U.S.C. SEC. 2106, WHICH GRANTS US POWER, INCIDENT TO OUR APPELLATE
JURISDICTION, TO "VACATE  ...  ANY JUDGMENT" BROUGHT "BEFORE US FOR
REVIEW" AND TO "REQUIRE SUCH FURTHER PROCEEDINGS TO BE HAD AS MAY BE
JUST UNDER THE CIRCUMSTANCES." 

FN18  THE GOVERNMENT DOES NOT CONCEDE THE CORRECTNESS OF THE COURT OF
APPEALS' DECISION UPON THE EXISTING RECORD.  CF. UNITED STATES V.
JOHNSON, 327 U.S. 106, 111, 112. 

FN19  RESPONDENTS DID NOT URGE BELOW, NOR DO THEY SUGGEST HERE, THAT
THE QUESTION OF ADMISSIBILITY OF THE DISPUTED EVIDENCE WAS PROPERLY AN
ISSUE FOR THE JURY.  RATHER THEIR CONTENTION HAS BEEN THAT THE JUDGE
SHOULD HAVE SUSTAINED THE MOTION TO SUPPRESS. 

FN20  IT HAS ALSO BEEN SUGGESTED THAT THESE CHARGES OF FRAUD COULD BE
DEALT WITH AT THE NEW TRIAL WHICH THE COURT OF APPEALS HAS ORDERED. 
BUT AS THE COURT OF APPEALS HAS DIRECTED SUPPRESSION OF THE EVIDENCE
OBTAINED BY THE GOVERNMENT AS A RESULT OF THE ALLEGED VOLUNTARY
DISCLOSURE, IT SEEMS CLEAR THAT AT THE NEW TRIAL THE GOVERNMENT COULD
NOT USE THAT EVIDENCE, OR THE FRUITS THEREOF, UNLESS THE "SUPPRESSION"
ASPECT OF THE JUDGMENT OF THE COURT OF APPEALS IS VACATED.  WE THINK
THAT THE SOUND ADMINISTRATION OF JUSTICE PRECLUDES THAT COURSE BECAUSE,
IF THE GOVERNMENT'S EVIDENCE IS TRUE, THE NET EFFECT WOULD BE TO GRANT
THE RESPONDENTS A NEW TRIAL, NOT OTHERWISE JUSTIFIED, PROCURED BY THEIR
OWN FRAUD. 

FN21  RESPONDENTS HAVE CONTENDED THAT THE GOVERNMENT'S NEW EVIDENCE
IS IRRELEVANT TO THE ISSUE OF TIMELINESS BECAUSE, EVEN ASSUMING ITS
TRUTH, THE DISCLOSURE WAS TIMELY SINCE NO FORMAL INVESTIGATION WAS
INITIATED BY THE REVENUE SERVICE UNTIL AFTER JULY 1948, THE TIME THAT
THE GOVERNMENT'S NEW EVIDENCE INDICATES THAT THE RESPONDENTS FIRST
COMMUNICATED WITH THE TREASURY.  WE FIND IT UNNECESSARY TO DEAL WITH
THIS CONTENTION BECAUSE THE NEW EVIDENCE IS IN ANY EVENT CLEARLY
RELEVANT TO THE QUESTION WHETHER A BONA FIDE DISCLOSURE WAS IN FACT
EVER MADE.  MOREOVER, IN THE PRESENT STATE OF THE RECORD THIS COURT
SHOULD NOT PASS ON RESPONDENTS' ARGUMENT AS TO TIMELINESS BECAUSE (A)
THE DISTRICT COURT HAS NOT YET MADE A FINDING ON THIS ISSUE, AND (B)
THE TREASURY "VOLUNTARY DISCLOSURE POLICY" WAS NEVER FORMULATED WITH
SUFFICIENT PRECISION TO ENABLE US TO APPLY IT MECHANICALLY. 

DISSENTING OPINION OF MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE
AND MR. JUSTICE DOUGLAS CONCUR, ANNOUNCED BY MR. JUSTICE DOUGLAS. 

BY REMANDING THIS CASE SO THAT THE GOVERNMENT CAN INTRODUCE
ADDITIONAL EVIDENCE TO SAVE THE CONVICTION THROWN OUT BY THE COURT OF
APPEALS, I THINK THE COURT TAKES UNNECESSARY AND UNPRECEDENTED ACTION
WHICH MAY HAVE FAR-REACHING AND UNFORTUNATE RAMIFICATIONS NOT YET
CLEARLY FORESEEN.  I WOULD DENY CERTIORARI AND THUS PERMIT THE CASE IN
ITS REGULAR COURSE TO GO BACK TO THE DISTRICT COURT FOR A NEW TRIAL
PURSUANT TO THE DECISION OF THE COURT OF APPEALS.  AT THIS TRIAL THE
GOVERNMENT COULD INTRODUCE ANY EVIDENCE WHICH IT NOW HAS, NEW OR
OTHERWISE, AND A FULL HEARING COULD BE HAD ON ITS CHARGES OF PERJURY
AND FRAUD. 

THE COURT OF APPEALS HELD THAT DEFENDANTS' INCRIMINATING DISCLOSURES
WERE SECURED BY PROMISES OF IMMUNITY MADE BY VARIOUS GOVERNMENT
OFFICIALS AND THAT SUCH DISCLOSURES COULD NOT BE USED TO CONVICT
DEFENDANTS BECAUSE OF THEIR PRIVILEGE AGAINST SELF-INCRIMINATION UNDER
THE FIFTH AMENDMENT.  NOW THIS COURT SENDS THE CASE BACK TO THE
DISTRICT COURT TO HEAR NEW EVIDENCE AND MAKE NEW FINDINGS WITH RESPECT
TO WHETHER DEFENDANTS' DISCLOSURES WERE MADE IN GOOD FAITH AND IN FULL
ACCORDANCE WITH CERTAIN VAGUE CONDITIONS ATTACHED TO THE OFFERS OF
IMMUNITY.  (FN1)  THE MAJORITY ASSERTS THAT IT IS NOT RULING ON THE
MERITS OF THE DEFENDANTS' FIFTH AMENDMENT CLAIMS BUT IT SEEMS TO ME A
VAIN AND WASTEFUL ACT FOR THE MAJORITY TO RETURN THE CASE TO THE
DISTRICT COURT FOR THESE SUPPLEMENTAL PROCEEDINGS UNLESS IT ASSUMES
THAT NEITHER THE FIFTH AMENDMENT NOR ANY RULE OF EVIDENCE IN THE
FEDERAL COURTS BARS THE USE OF INCRIMINATING ADMISSIONS INDUCED BY
PROMISES OF IMMUNITY WHERE THE DISCLOSURES ARE NOT MADE WITH PURE
MOTIVES.  IF WE ARE GOING TO CONCERN OURSELVES WITH THE CASE AT ALL, I
BELIEVE WE SHOULD AT LEAST GIVE FULL CONSIDERATION TO THE LEGAL
PROBLEMS INVOLVED IN DEFENDANTS' REQUESTS FOR SUPPRESSION BEFORE
REMANDING THE CASE FOR ANY FURTHER PROCEEDINGS. 

I THINK THE FIFTH AMENDMENT QUESTIONS RAISED HERE ARE IMPORTANT,
UNSETTLED AND NOT SUSCEPTIBLE TO OFFHAND RESOLUTION, PARTICULARLY WITH
RESPECT TO INCRIMINATING EVIDENCE WHICH THE DEFENDANTS ACTUALLY TURNED
OVER TO THE GOVERNMENT IN HOPE OF SECURING IMMUNITY FROM PROSECUTION. 
IN BRAM V. UNITED STATES, 168 U.S. 532, 542-543, THE COURT REFERRED
WITH APPROVAL TO THE RULE THAT:    "'  ...  A CONFESSION, IN ORDER TO
BE ADMISSIBLE, MUST BE FREE AND VOLUNTARY: THAT IS, MUST NOT BE
EXTRACTED BY ANY SORT OF THREATS OR VIOLENCE, NOR OBTAINED BY ANY
DIRECT OR IMPLIED PROMISES, HOWEVER SLIGHT, NOR BY THE EXERTION OF ANY
IMPROPER INFLUENCE  ...  .  A CONFESSION CAN NEVER BE RECEIVED IN
EVIDENCE WHERE THE PRISONER HAS BEEN INFLUENCED BY ANY THREAT OR
PROMISE; FOR THE LAW CANNOT MEASURE THE FORCE OF THE INFLUENCE USED, OR
DECIDE UPON ITS EFFECT UPON THE MIND OF THE PRISONER, AND THEREFORE
EXCLUDES THE DECLARATION IF ANY DEGREE OF INFLUENCE HAS BEEN
EXERTED.'" 

IN ACCORD WITH THIS STATEMENT IT APPEARS TO HAVE BEEN GENERALLY
ASSUMED IN THIS COURT THAT THE FIFTH AMENDMENT BARS THE USE AGAINST A
DEFENDANT IN A CRIMINAL PROSECUTION OF CONFESSIONS OR ADMISSIONS
SECURED FROM HIM BY PROMISES OF IMMUNITY.  SEE, E.G., HARDY V. UNITED
STATES, 186 U.S. 224, 229; ZIANG SUNG WAN V. UNITED STATES, 266 U.S. 1,
14; SMITH V. UNITED STATES, 348 U.S. 147, 150.  AND SO FAR AS I CAN
TELL THIS COURT HAS NEVER CONSIDERED WHETHER LACK OF GOOD FAITH
DEPRIVES A SUSPECT OF THE FIFTH AMENDMENT'S PROTECTION WHEN HE MAKES
DISCLOSURES UNDER A PROMISE OF IMMUNITY, OR UNDER JUST WHAT
CIRCUMSTANCES AND TO WHAT EXTENT THIS MIGHT BE TRUE.  I DO NOT MEAN TO
INTIMATE ANY VIEW ON THE MERITS OF THIS PROBLEM NOW, BUT I DO REGISTER
A PROTEST AGAINST THE MANNER IN WHICH THE MAJORITY DISPOSES OF THE
CASE. 

I BELIEVE THE MAJORITY HAS ALSO DISREGARDED ANOTHER SIGNIFICANT AND
CRUCIAL CONSIDERATION - THE ROLE OF THE JURY IN PASSING ON THE
ADMISSIBILITY OF DEFENDANTS' DISCLOSURES.  IN WILSON V. UNITED STATES,
162 U.S. 613, 624, THE COURT LAID DOWN A RULE WHICH IT HAS NEVER
QUESTIONED: 

"WHEN THERE IS A CONFLICT OF EVIDENCE AS TO WHETHER A CONFESSION IS
OR IS NOT VOLUNTARY, IF THE COURT DECIDES THAT IT IS ADMISSIBLE, THE
QUESTION MAY BE LEFT TO THE JURY WITH THE DIRECTION THAT THEY SHOULD
REJECT THE CONFESSION IF UPON THE WHOLE EVIDENCE THEY ARE SATISFIED IT
WAS NOT THE VOLUNTARY ACT OF THE DEFENDANT." 

JUST RECENTLY IN SMITH V. UNITED STATES, 348 U.S. 147, 151, THE COURT
STATED THAT THE QUESTION OF VOLUNTARINESS WAS PROPERLY LEFT TO THE JURY
WHERE A TAXPAYER CLAIMED HE HAD MADE CERTAIN DISCLOSURES ON THE
STRENGTH OF PROMISES OF IMMUNITY BY REVENUE OFFICERS.  CF. KENT V.
PORTO RICO, 207 U.S. 113, 118-119. 

IN THE LOWER FEDERAL COURTS THERE SEEMS TO BE CONSIDERABLE DIFFERENCE
OF OPINION AS TO WHETHER THE WILSON CASE MAKES IT MANDATORY THAT THE
JURY PARTICIPATE IN THE PROCESS OF DETERMINING WHETHER A CONFESSION IS
VOLUNTARY OR WHETHER THE JURY'S PARTICIPATION IS A MATTER OF DISCRETION
WITH THE TRIAL JUDGE.  (FN2)  E.G., COMPARE UNITED STATES V. LEVITON,
193 F.2D 848, 852, CERT. DENIED, 343 U.S. 946, WITH LEWIS V. UNITED
STATES, 74 F.2D 173, 178-179.  IN AT LEAST THE DISTRICT OF COLUMBIA
CIRCUIT THE RULE APPEARS TO BE SETTLED THAT THE TRIAL JUDGE MUST SUBMIT
THE QUESTION OF VOLUNTARINESS TO THE JURY FOR ITS INDEPENDENT
DETERMINATION.  MCAFFEE V. UNITED STATES, 70 APP. D.C. 142, 105 F.2D
21.  IN THE STATES A NUMBER OF DIFFERENT METHODS OF ALLOCATING THE
BURDEN OF DETERMINING THE VOLUNTARINESS OF A CONFESSION BETWEEN THE
JUDGE AND JURY HAVE BEEN FOLLOWED, BUT THE TREND SEEMS TO BE THAT THE
JUDGE SHOULD DETERMINE VOLUNTARINESS IN THE FIRST INSTANCE AND IF HE
FINDS THAT THE CONFESSION IS VOLUNTARY THEN SHOULD SUBMIT THE CASE TO
THE JURY WITH INSTRUCTIONS NOT TO CONSIDER THE CONFESSION AS EVIDENCE
UNLESS THEY ALSO FIND IT VOLUNTARY.  AS A MATTER OF FACT THE COURT IN
WILSON RELIED ON STATE CASES WHICH HAD LAID DOWN THIS SO-CALLED
"HUMANE" RULE.  I MYSELF FAVOR SUCH A RULE, WHICH IS PARTICULARLY
BENEFICIAL WHERE, AS HERE, THE QUESTION OF ADMISSIBILITY TURNS TO A
LARGE EXTENT ON THE CREDIBILITY OF WITNESSES. 

I THINK THAT THE PRINCIPLES ESTABLISHED IN WILSON AND SUBSEQUENT
CASES CLEARLY APPLY TO THE QUESTIONS OF ADMISSIBILITY RAISED IN THIS
CASE.  UNDER THESE PRINCIPLES THE TRIAL JUDGE, AT A MINIMUM, HAS THE
OPTION OF SUBMITTING SUCH QUESTIONS TO THE JURY.  BUT THE MAJORITY'S
DISPOSITION OF THIS CASE PRECLUDES THAT POSSIBILITY AT THE PARTIAL NEW
TRIAL WHICH IT ORDERS.  IT ATTEMPTS TO AVOID THIS INFIRMITY BY SAYING,
"THE GOVERNMENT'S NEW SHOWING DOES NOT RELATE TO AN ISSUE SUBMITTED TO
THE JURY IN THE PROCEEDINGS BELOW, BUT RATHER TO A PRELIMINARY QUESTION
AS TO THE ADMISSIBILITY OF EVIDENCE."  AND IT CONTINUES, "RESPONDENTS
DID NOT URGE BELOW, NOR DO THEY SUGGEST HERE, THAT THE QUESTION OF
ADMISSIBILITY OF THE DISPUTED EVIDENCE WAS PROPERLY AN ISSUE FOR THE
JURY."  BUT THESE ANSWERS ARE OBVIOUSLY INADEQUATE.  WE ARE NOT
CONCERNED WITH WHAT HAS HAPPENED OR WHAT WAS URGED BUT WITH HOW THIS
CASE WILL BE HANDLED IN THE FUTURE.  IF THE NEW TRIAL ORDERED BY THE
COURT OF APPEALS HAD BEEN ALLOWED TO STAND THE DEFENDANTS WOULD NOT
HAVE BEEN BARRED FROM DEMANDING THAT THE QUESTION OF ADMISSIBILITY BE
SUBMITTED TO THE JURY JUST BECAUSE THEY HAD NOT MADE A SIMILAR REQUEST
AT THE FIRST TRIAL OR ON APPEAL. 

THE COURT NOW GIVES THE GOVERNMENT AN OPPORTUNITY TO INTRODUCE NEW
EVIDENCE IN AN ATTEMPT TO SAVE A CONVICTION IT HAS LOST IN THE COURT OF
APPEALS.  IF THIS DOES NOT TECHNICALLY INFRINGE THE PROTECTION AGAINST
DOUBLE JEOPARDY IT SEEMS TO ME TO VIOLATE ITS SPIRIT.  CF. GREEN V.
UNITED STATES, 355 U.S. 184; KEPNER V. UNITED STATES, 195 U.S. 100, 128
129.  IN FACT IT IS EVEN WORSE IN SOME RESPECTS.  ONLY THE GOVERNMENT
STANDS TO BENEFIT FROM THIS PARTIAL NEW TRIAL WHILE THE DEFENDANTS MUST
FIGHT TO KEEP WHAT THEY ALREADY HAVE.  NOT A SINGLE CASE HAS BEEN
REFERRED TO OR DISCOVERED WHERE DEFENDANTS HAVE BEEN SUBJECTED TO SUCH
PIECEMEAL PROSECUTION.  (FN3)  TO MY KNOWLEDGE IT IS A NEW IDEA THAT
THE GOVERNMENT CAN SUPPLEMENT A TRIAL RECORD IN ORDER TO RETAIN A
CONVICTION WHICH AN APPELLATE COURT WOULD OTHERWISE REVERSE. 

BOTH THE GOVERNMENT AND THE COURT CONCEDE THAT THE ACTION TAKEN HERE
IS EXTRAORDINARY BUT SUCH DISPOSITION IS JUSTIFIED ON THE GROUND THAT
THIS IS AN EXCEPTIONAL CASE WHICH CALLED FOR EXTRAORDINARY ACTION.  I
DO NOT AGREE.  IN ESSENCE ALL THE GOVERNMENT PROPOSES TO DO ON REMAND
IS TO IMPEACH THE TESTIMONY OF CERTAIN WITNESSES FOR BOTH SIDES WITH
ALLEGED NEWLY DISCOVERED EVIDENCE.  NO WITNESS HAS RECANTED NOR DO THE
DEFENDANTS CONCEDE THAT THEIR TESTIMONY WAS FALSE.  IF THE GOVERNMENT
CAN PARTIALLY REOPEN A CASE TO IMPEACH WITNESSES WHAT RATIONAL BASIS IS
THERE FOR DENYING IT A SIMILAR RIGHT IN ANY CASE WHEN NEW FACTS APPEAR
WHICH PERSUASIVELY SUGGEST THAT IT COULD STRENGTHEN ITS EVIDENCE IN
ORDER TO SAVE A CONVICTION ON APPEAL?  THIS POSSIBILITY EMPHASIZES THE
ANOMALOUS NATURE OF WHAT IS DONE HERE. 

THE COURT PROCEEDS ON THE ASSUMPTION THAT IT WOULD BE IMPROPER FOR US
TO REVIEW THE SUPPRESSION QUESTION ON A RECORD WHICH MIGHT CONTAIN
MATERIALLY FALSE TESTIMONY AND THAT IT IS BETTER, ALTHOUGH CONCEDEDLY
UNIQUE, TO SEND THE CASE BACK FOR MORE EVIDENCE ON THAT ISSUE.  BUT
THERE IS NO NEED TO RESORT TO EITHER UNDESIRABLE ALTERNATIVE.  AS I
STATED IN THE BEGINNING THE CASE SHOULD SIMPLY BE LEFT ALONE AND
ALLOWED TO GO BACK FOR A NEW TRIAL.  THERE THE GOVERNMENT CAN OFFER ALL
THE EVIDENCE IT HAS OR CAN SECURE SO THAT A NEW RECORD CAN BE MADE ON
THE SUPPRESSION ISSUE.  IN MY JUDGMENT IT CANNOT SERIOUSLY BE CONTENDED
THAT THE GOVERNMENT WOULD BE BARRED FROM INTRODUCING EVIDENCE ON THAT
ISSUE AT A NEW TRIAL.  WHILE IT IS TRUE THAT THE COURT OF APPEALS
ORDERED THE DISCLOSURES SUPPRESSED, ON THE EVIDENCE IN THE RECORD THEN
BEFORE IT, SUCH RULING SHOULD NOT BE CONSTRUED AS BINDING AT A NEW
TRIAL WHERE SUBSTANTIAL NEWLY DISCOVERED EVIDENCE IS AVAILABLE.  CF.
AETNA LIFE INS. CO. V. WHARTON, 63 F.2D 378; CITY OF SEDALIA EX REL.
FERGUSON V. SHELL PETROLEUM CORP., 81 F.2D 193.  IF NEED BE - AND I
THINK NOT - THIS COURT COULD VACATE THE JUDGMENT OF THE COURT OF
APPEALS TO THE EXTENT NECESSARY TO ALLOW THE GOVERNMENT A DE NOVO
HEARING ON THE SUPPRESSION ISSUE AT THE NEW TRIAL.  28 U.S.C. SEC.
2106.  THIS WOULD DO FULL JUSTICE AS FAR AS THE CHARGES OF TAX EVASION
ARE CONCERNED AND IF PERJURY HAS BEEN COMMITTED IT CAN BE PROSECUTED AS
A SEPARATE CRIME. 

I THINK THIS CASE IS A DANGEROUS PRECEDENT WHICH SHOULD NOT BE
LAUNCHED NEEDLESSLY INTO THE STREAM OF THE LAW. 

FN1  "WE ARE NOT CONCERNED WITH THE MOTIVATING FORCE BEHIND AN
INDIVIDUAL'S DECIDING TO COME IN AND TALK TO US ABOUT HIS EVASION.  IF
HE 'GETS RELIGION' BEFORE WE HAVE DONE ANYTHING, HE WILL NOT BE
PROSECUTED."  TREASURY PRESS RELEASE, MAY 14, 1947. 

FN2  THE ENTIRE SUBJECT IS ANNOTATED IN GREAT DETAIL AT 170 A.L.R.
567.  ALSO SEE 85 A.L.R. 870. 

FN3  NEITHER MESAROSH V. UNITED STATES, 352 U.S. 1, NOR COMMUNIST
PARTY V. SUBVERSIVE ACTIVITIES CONTROL BD., 351 U.S. 115, SERVES AS ANY
AUTHORITY FOR THE COURT'S ACTION.  IN THE MESAROSH CASE THE GOVERNMENT
HAD SECURED A CONVICTION WHICH HAD BEEN UPHELD BY THE COURT OF
APPEALS.  IN THIS COURT THE GOVERNMENT CAME FORWARD WITH EVIDENCE THAT
ONE OF ITS PRINCIPAL WITNESSES AT THE TRIAL HAD COMMITTED PERJURY AND
THE COURT REVERSED THE CONVICTION AND REMANDED THE CASE FOR A FULL NEW
TRIAL.  HERE THE UNITED STATES HAS LOST A CONVICTION IN THE COURT OF
APPEALS.  IT NOW ASKS US TO SEND THE CASE BACK TO THE TRIAL COURT SO
THAT IT CAN INTRODUCE ADDITIONAL EVIDENCE IN AN ATTEMPT TO SALVAGE THE
REVERSED CONVICTION.  THE DIFFERENCE BETWEEN THE TWO CASES IS MANIFEST
AND CRUCIAL. 

IN THE COMMUNIST PARTY CASE ADMINISTRATIVE FINDINGS WERE CHALLENGED
AND THIS COURT REMANDED THE CASE TO THE AGENCY SO THAT IT MIGHT
CONSIDER THE RECORD FREE OF ANY PERJURIOUS TESTIMONY BY GOVERNMENT
WITNESSES.  THE ADMINISTRATIVE PROCEEDING THERE CAN HARDLY BE EQUATED
WITH THE CRIMINAL PROSECUTION INVOLVED HERE.  MOREOVER, IN BOTH THE
MESAROSH AND COMMUNIST PARTY CASES THE COURT'S ACTION OPERATED TO
PROTECT THE RIGHTS OF DEFENDANTS, NOT AS HERE TO AID THE GOVERNMENT. 
IN VIEW OF OUR TRADITIONAL METHODS OF CRIMINAL JUSTICE THIS DIFFERENCE
IS NOT WITHOUT IMPORTANCE. 
..END :





















UNITED STATES V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. 355 U.S.
253 


NO. 45.  ARGUED NOVEMBER 20, 1957 - DECIDED DECEMBER 16, 1957 - 236 F.2D
101, REVERSED AND REMANDED. 


PURSUANT TO SEC. 322 OF THE TRANSPORTATION ACT OF 1940, THE GOVERNMENT
PAID UPON PRESENTATION AND PRIOR TO AUDIT BILLS PRESENTED BY RESPONDENT
RAILROAD FOR TRANSPORTING GOVERNMENT PROPERTY IN 1944.  ON POST-AUDIT,
THE GOVERNMENT FOUND THAT IT HAD BEEN OVERCHARGED AND, UPON REFUSAL OF
RESPONDENT TO REFUND THE AMOUNT OF THE OVERCHARGE, DEDUCTED THE AMOUNT
FROM A BILL FOR TRANSPORTATION SERVICES RENDERED BY RESPONDENT IN
1950.  RESPONDENT THEN SUED THE GOVERNMENT UNDER THE TUCKER ACT FOR THE
FULL AMOUNT OF THE 1950 BILL.  IN ITS ANSWER, THE GOVERNMENT ADMITTED
THE 1950 BILL BUT CLAIMED CREDIT FOR THE 1944 OVERCHARGE AND ITS
PAYMENT OF THE DIFFERENCE BY CHECK.  RESPONDENT THEN ADMITTED RECEIPT
OF THE CHECK, BUT CLAIMED THAT THE REMAINDER OF THE 1950 BILL WAS DUE
AND UNPAID.  HELD: RESPONDENT HAS THE BURDEN OF PROVING THAT ITS 1944
CHARGES WERE COMPUTED AT LAWFUL AND AUTHORIZED RATES, AND IT IS
ENTITLED TO RECOVERY ONLY IF IT SATISFIES THAT BURDEN.  PP. 254-264. 

(A)  IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF SEC. 322 THAT BOTH
CONGRESS AND THE RAILROADS CONTEMPLATED THAT THE GOVERNMENT'S
PROTECTION AGAINST OVERCHARGES AVAILABLE UNDER THE PREAUDIT PRACTICE
SHOULD NOT BE DIMINISHED AND THAT THE BURDEN OF THE CARRIERS TO
ESTABLISH THE CORRECTNESS OF THEIR CHARGES WAS TO CONTINUE UNABRIDGED. 
PP. 255-260. 

(B)  THE BURDEN OF THE CARRIER TO ESTABLISH THE LAWFULNESS OF ITS
CHARGES IS THE SAME UNDER SEC. 322 AS IT WAS UNDER THE SUPERSEDED
PRACTICE, UNDER WHICH PAYMENT WAS WITHHELD UNTIL THE CARRIER
ESTABLISHED THE CORRECTNESS OF ITS CHARGES.  PP. 260-262. 

(C)  CONVENTIONAL PRINCIPLES OF CONTRACTUAL SETOFF SHOULD NOT GOVERN
THE DETERMINATION OF THE CARRIER'S BURDEN OF PROOF IN THIS ACTION
MERELY BECAUSE THE COMPLAINT FRAMES AN ACTION FOR RECOVERY OF THE FULL
AMOUNT OF THE 1950 BILL RATHER THAN THE AMOUNT DEDUCTED THEREFROM.  PP.
262-263. 

UNITED STATES V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE GENERAL ACCOUNTING OFFICE AUDITED TRANSPORTATION BILLS OF THE
RESPONDENT, RENDERED AND PAID IN 1944, AND DETERMINED THAT THE
GOVERNMENT WAS OVERCHARGED IN THE AMOUNT OF $1,025.26.  WHEN THE
RESPONDENT DID NOT REFUND THIS AMOUNT ON DEMAND, THE GOVERNMENT
EXERCISED THE RIGHT, RESERVED IN SEC. 322 OF THE TRANSPORTATION ACT OF
1940, (FN1) TO DEDUCT THE OVERPAYMENTS FROM A SUBSEQUENT BILL.   THE
GOVERNMENT CREDITED THAT AMOUNT AGAINST A BILL OF THE RESPONDENT,
ADMITTEDLY OWING, OF $1,143.03 FOR 1950 TRANSPORTATION SERVICES, AND
PAID THE BALANCE OF $117.77 BY CHECK. 

THE RESPONDENT THEREUPON BROUGHT THIS ACTION UNDER THE TUCKER ACT
(FN2) IN THE DISTRICT COURT FOR MASSACHUSETTS.  THE COMPLAINT SEEKS
RECOVERY NOT OF THE $1,025.26 DEDUCTED, BUT OF THE FULL AMOUNT OF THE
1950 BILL OF $1,143.03.  THE GOVERNMENT'S ANSWER ADMITS THE 1950 BILL
BUT PLEADS ITS PAYMENT BY THE CHECK OF $117.77 AND THE CREDIT OF
$1,025.26 IN LIQUIDATION OF THE OVERCHARGES DETERMINED IN THE 1944
BILLS.  THE RESPONDENT FILED A PLEADING IN RESPONSE TO THE GOVERNMENT
ANSWER (FN3) ADMITTING "THAT IT DID RECEIVE THE CHECK IN THE AMOUNT OF
$117.77, ALL AS RECITED BY THE DEFENDANT, LEAVING THE BALANCE DUE AND
TO THIS DATE UNPAID IN THE AMOUNT OF $1025.26." 

THE QUESTION PRESENTED IN BOTH COURTS BELOW, AND IN THIS COURT, IS
WHETHER IN THIS ACTION THE CARRIER HAS THE BURDEN OF PROVING THE
CORRECTNESS OF THE 1944 BILLS, OR THE GOVERNMENT THE BURDEN OF PROVING
THAT IT WAS OVERCHARGED.  THE DISTRICT COURT HELD THAT THE RESPONDENT
CARRIER WAS PLEADING ON A CONTRACT AGAINST WHICH THE GOVERNMENT WAS
ATTEMPTING TO "SET OFF" CLAIMS UNDER OTHER CONTRACTS, AND THAT "WHOEVER
ATTEMPTS TO SET OFF THE OTHER CONTRACTUAL CLAIMS HAS THE BURDEN OF
SHOWING THERE ARE OTHER CLAIMS."  IN THE ABSENCE OF GOVERNMENT EVIDENCE
PROVING THE CLAIMED OVERCHARGES IN THE 1944 BILLS, A MOTION OF THE
RESPONDENT FOR SUMMARY JUDGMENT WAS GRANTED.  THE JUDGMENT ENTERED,
HOWEVER, WAS FOR $402.84, BECAUSE THE RESPONDENT ACCEPTED THE AMOUNT OF
1944 OVERCHARGES IN THE DIFFERENCE BETWEEN THAT SUM AND THE AMOUNT OF
THE BILL.  THE COURT OF APPEALS FOR THE FIRST CIRCUIT AFFIRMED THE
JUDGMENT.  236 F. 2D 101.  WE GRANTED CERTIORARI, 352 U.S. 965. 

BEFORE ENACTMENT OF SEC. 322, THE GOVERNMENT PROTECTED ITSELF AGAINST
TRANSPORTATION OVERCHARGES BY NOT PAYING TRANSPORTATION BILLS UNTIL THE
RESPONSIBLE GOVERNMENT OFFICERS, AND, IN DOUBTFUL CASES, THE GENERAL
ACCOUNTING OFFICE, FIRST AUDITED THE BILLS AND FOUND THAT THE CHARGES
WERE CORRECT.  (FN4)  WHEN CHARGES WERE QUESTIONED THE CARRIER WAS
REQUIRED TO JUSTIFY THEM.  IF ADMINISTRATIVE SETTLEMENT WAS NOT REACHED
AND THE CARRIER SUED THE UNITED STATES TO RECOVER THE AMOUNT OF THE
BILL, NO ONE QUESTIONS THAT IT WAS THE CARRIER'S DUTY TO SUSTAIN THE
BURDEN OF PROVING THE CORRECTNESS OF THE CHARGES.  (FN5) SOUTHERN
PACIFIC CO. V. UNITED STATES, 272 U.S. 445, 448. 

PRESENTATION  ...  PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL
ACCOUNTING OFFICE  ...  ."  THE AUDIT PROCEDURES REMAINED SUBSTANTIALLY
THE SAME AS THOSE IN EFFECT PRIOR TO THE STATUTE BUT THE FORMER MEANS
OF PROTECTING AGAINST OVERCHARGES - BY NOT PAYING THE BILLS UNTIL THEIR
CORRECTNESS WAS PROVED - HAS, BY FORCE OF THE STATUTE, BEEN REPLACED BY
THE METHOD OF COLLECTING THEM FROM SUBSEQUENT BILLS, UNDER THE RIGHT
RESERVED BY THE SECTION TO THE GOVERNMENT "TO DEDUCT THE AMOUNT OF ANY
OVERPAYMENT TO ANY SUCH CARRIER FROM ANY AMOUNT SUBSEQUENTLY FOUND TO
BE DUE SUCH CARRIER."  WE RECENTLY SAID IN UNITED STATES V. WESTERN
PACIFIC R. CO., 352 U.S. 59, 74: 

"  ...  THIS RIGHT (TO DEDUCT OVERPAYMENT FROM SUBSEQUENT BILLS OF
THE CARRIER) WAS THOUGHT TO BE A NECESSARY MEASURE TO PROTECT THE
GOVERNMENT, SINCE CARRIERS' BILLS MUST BE PAID ON PRESENTATION AND
BEFORE AUDIT." 

AGAIN AT PAGE 75: 

"THE FACT THAT THE GOVERNMENT PAID THE CARRIER'S BILLS AS RENDERED IS
WITHOUT SIGNIFICANCE IN LIGHT OF SEC. 322 OF THE TRANSPORTATION ACT,
SUPRA, REQUIRING PAYMENT 'UPON PRESENTATION' OF SUCH BILLS AND
POSTPONING FINAL SETTLEMENT UNTIL AUDIT." 

THIS INTERPRETATION OF SEC. 322 FINDS FULL SUPPORT IN THE LEGISLATIVE
HISTORY OF THE SECTION.  THE SECTION WAS INCLUDED IN THE OMNIBUS
TRANSPORTATION BILL, WHICH BECAME THE TRANSPORTATION ACT OF 1940, IN
DIRECT RESPONSE TO A DEMAND OF THE RAILROADS FOR LEGISLATION RELIEVING
THEM OF THE INORDINATE DELAYS IN PAYMENT OF THEIR BILLS ATTRIBUTABLE TO
THE PREAUDIT PROCEDURE, WHICH TIED UP SUBSTANTIAL AMOUNTS OF ACCOUNTS
RECEIVABLE AND CONTRIBUTED TO THE FINANCIAL DIFFICULTIES WHICH
CONFRONTED THE RAILROADS DURING THE DEPRESSION YEARS.  THE THEN
PRESIDENT OF THE ASSOCIATION OF AMERICAN RAILROADS RAISED THE ISSUE IN
A LETTER TO THE PROCUREMENT DIVISION OF THE DEPARTMENT OF THE TREASURY
DATED OCTOBER 5, 1937.  (SEE APPENDIX TO THIS OPINION, POST, P. 264.) 
PROPOSED LEGISLATION IN ALMOST THE IDENTICAL LANGUAGE WHICH BECAME SEC.
322 WAS THEREUPON INTRODUCED IN 1938.  (FN6)  IT FAILED OF PASSAGE IN
THE SEVENTY-FIFTH CONGRESS AND A NUMBER OF SIMILAR PROPOSALS WERE
THEREFORE INTRODUCED IN THE SEVENTY-SIXTH CONGRESS.  (FN7)  NONE OF
THESE PASSED, BUT IN THE FOLLOWING YEAR THE PROVISION WAS INCLUDED AS
SEC. 322 OF THE TRANSPORTATION ACT OF 1940.  (FN8) 

IT IS ENTIRELY CLEAR THAT ALTHOUGH THE RAILROADS SOUGHT, IN THE WORDS
OF THEIR SPOKESMAN, "CORRECTIVE ACTION  ...  THAT WILL RENDER
IMPOSSIBLE SUCH LONG DELAYS IN PAYMENT FOR SERVICES RENDERED," TO GAIN
THAT END THE RAILROADS RECOGNIZED THAT ANY REMEDY SUGGESTED ON THEIR
BEHALF SHOULD BE "BOTH PRACTICAL AND LEGAL AND ONE WHICH CAN EASILY BE
MADE OPERATIVE WITHOUT THE ASSUMPTION OF ANY RISK INSOFAR AS THE
GOVERNMENT IS CONCERNED."  IT WAS "WITH THIS THOUGHT IN MIND" THAT THE
RAILROADS PROPOSED THE ELIMINATION OF PREAUDIT PROCEDURES AND THE
PROMPT PAYMENT OF TRANSPORTATION BILLS WHEN RENDERED, WITH AUDIT "AFTER
PAYMENT  ...  OF THESE BILLS REFERRED TO THE GENERAL ACCOUNTING OFFICE
OR SUCH OTHER GOVERNMENTAL AUDITING OFFICE AS MIGHT BE DESIRED FOR
AUDIT."   THE PLAN CONTEMPLATED THAT "IN THE EVENT  ...  THIS AUDIT
REVEALS AN OVER-PAYMENT" THE SAME "WILL BE PROMPTLY PAID BY THE
RAILWAY, PRESERVING, HOWEVER, THE RIGHT OF THE CARRIER TO MAKE FURTHER
EFFORT TO RECOLLECT IN THE EVENT THAT IT DOES NOT BELIEVE THE PROPER
CHARGES RESULTED FROM THE GOVERNMENT'S AUDIT."  (FN9) 

IN HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE HELD JUNE 1, 1938, (FN10) IN CONNECTION WITH ONE OF THE BILLS
INCORPORATING THE PROPOSAL WHICH BECAME SEC. 322, THE THEN GENERAL
COUNSEL OF THE ASSOCIATION OF AMERICAN RAILROADS, ARGUING IN SUPPORT OF
THE PROPOSAL, URGED THAT "IF THAT SECTION COULD BE PUT IN HERE, IT
WOULD REQUIRE THE PAYMENT OF THE BILLS BY THE GOVERNMENT AS THEY ARE
RENDERED BY THE RAILROADS, WITH THE PRIVILEGE, HOWEVER, OF COURSE, IF
IT SHOULD DEVELOP THAT THERE HAS BEEN AN OVERPAYMENT, THE GOVERNMENT
MAY DEDUCT THAT AMOUNT FROM SUBSEQUENT BILLS." 

THE CONCLUSION IS INESCAPABLE FROM THIS HISTORY THAT THE CONGRESS WAS
DESIROUS OF AIDING THE RAILROADS TO SECURE PROMPT PAYMENT OF THEIR
CHARGES, (FN11) BUT IT IS ALSO CLEAR THAT THE CONGRESS, AND THE
RAILROADS, CONTEMPLATED THAT THE GOVERNMENT'S PROTECTION AGAINST
OVERCHARGES AVAILABLE UNDER THE PREAUDIT PRACTICE SHOULD NOT BE
DIMINISHED.  THE BURDEN OF THE CARRIERS TO ESTABLISH THE CORRECTNESS OF
THEIR CHARGES WAS TO CONTINUE UNABRIDGED.  THE CARRIERS WERE TO BE PAID
IMMEDIATELY UPON SUBMISSION OF THEIR BILLS BUT THE CARRIERS WERE IN
RETURN PROMPTLY TO REFUND OVERCHARGES WHEN SUCH CHARGES WERE
ADMINISTRATIVELY DETERMINED.  THE CARRIER WOULD THEN HAVE "TO
RECOLLECT" THE SUM REFUNDED BY JUSTIFYING ITS BILLS TO THE AGENCY OR BY
PROVING ITS CLAIM IN THE COURTS.  THE FOOTING UPON WHICH EACH OF THE
PARTIES STOOD WHEN CONTROVERSIES OVER CHARGES DEVELOPED WAS NOT TO BE
CHANGED.  THE RIGHT OF THE UNITED STATES TO DEDUCT OVERPAYMENTS FROM
SUBSEQUENT BILLS WAS THE CARRIERS' OWN PROPOSAL FOR SECURING THE
GOVERNMENT AGAINST THE BURDEN OF HAVING TO PROVE THE OVERPAYMENT IN
PROCEEDINGS FOR REIMBURSEMENT. 

IN THE LIGHT OF THIS HISTORY, WE ARE UNABLE TO AGREE WITH THE
HOLDINGS OF THE COURT OF APPEALS THAT "ALL THAT SEC. 322 DOES IS TO
AUTHORIZE AND DIRECT DISBURSING OFFICERS OF THE UNITED STATES TO PAY
TRANSPORTATION BILLS UPON PRESENTATION, WITHOUT WAITING FOR AUDIT OR
SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE," AND THAT THE RESERVATION
OF THE RIGHT OF OFFSET AGAINST SUBSEQUENT BILLS IS WITHOUT SIGNIFICANCE
- "WE SUPPOSE THAT THIS PROVISION WAS INSERTED OUT OF AN ABUNDANCE OF
CAUTION, BECAUSE THE AVAILABILITY OF A SETOFF BY THE UNITED STATES NEED
NOT DEPEND UPON SPECIFIC STATUTORY AUTHORIZATION," CITING GRATIOT V.
UNITED STATES, 15 PET. 336, 370.  236 F.2D 101, 105. 

NOR DO WE SHARE THE VIEW OF THE COURT OF APPEALS THAT "THE POSITION
OF THE UNITED STATES AS SHIPPER, SO FAR AS THE PRESENT CASE IS
CONCERNED, IS NO DIFFERENT FROM THAT OF A PRIVATE SHIPPER."  ID., AT
104.  EVEN IF WE ASSUME THAT "IF A PRIVATE SHIPPER OR CONSIGNEE SHOULD
PAY THE CARRIER BEFORE SATISFYING HIMSELF OF THE CORRECTNESS OF THE
CHARGES DEMANDED - AS HE MAY BE REQUIRED TO DO PURSUANT TO SEC. 3(2) OF
THE INTERSTATE COMMERCE ACT, 49 U.S.C.A. SEC. 3(2) AND REGULATIONS OF
THE COMMISSION THEREUNDER - AND LATER SUES FOR A REFUND OF ALLEGED
OVERPAYMENTS, OR SEEKS TO SET OFF THE AMOUNT OF THE OVERPAYMENTS
AGAINST ANOTHER CLAIM ADMITTEDLY DUE, IN EITHER CASE THE SHIPPER OR
CONSIGNEE WOULD HAVE THE BURDEN OF ALLEGING AND PROVING THE FACT AND
THE AMOUNT OF SUCH OVERPAYMENT," (FN12) THE COURT OF APPEALS OVERLOOKS
THE FACT THAT THE GOVERNMENT'S STATUTORY RIGHT OF SETOFF WAS DESIGNED
TO BE THE SUBSTANTIAL EQUIVALENT OF ITS PREVIOUS RIGHT TO WITHHOLD
PAYMENT ALTOGETHER UNTIL THE CARRIER ESTABLISHED THE CORRECTNESS OF ITS
CHARGES.  THUS THE ISSUE OF OVERCHARGES, AFTER THE ENACTMENT OF SEC.
322, ARISES IN A DIFFERENT WAY, BUT THE DIFFERING PROCEDURES BY WHICH
THE ISSUE IS PRESENTED SHOULD NOT CONTROL THE PLACEMENT OF THE BURDEN
OF PROOF.  (FN13)  IN EFFECT THE SITUATION IS THAT THE RAILROAD IS
SUING TO RECOVER AMOUNTS WHICH THE GOVERNMENT INITIALLY PAID
CONDITIONALLY, AND THEN RECAPTURED, UNDER THE SEC. 322 PROCEDURE.  WE
THEREFORE HOLD THAT THE BURDEN OF THE CARRIER TO ESTABLISH THE
LAWFULNESS OF ITS CHARGES IS THE SAME UNDER SEC. 322 AS IT WAS UNDER
THE SUPERSEDED PRACTICE. 

SIMILARLY, CONVENTIONAL PRINCIPLES OF CONTRACTUAL SETOFF SHOULD NOT
GOVERN THE DETERMINATION OF THE CARRIER'S BURDEN OF PROOF IN THIS
ACTION MERELY BECAUSE THE COMPLAINT FRAMES AN ACTION FOR RECOVERY OF
THE FULL AMOUNT OF THE 1950 BILL RATHER THAN THE AMOUNT DEDUCTED
THEREFROM.  THE RESPONDENT'S BRIEF CONCEDES THAT "WHENEVER A RAILROAD
BRINGS AN ACTION AGAINST THE GOVERNMENT, DIRECTLY UPON THE DEDUCTION
(AS, ON THE FACTS OF THE CASE, TO RECOVER THE ALLEGED 1944
OVERPAYMENTS), IT HAS THE BURDEN OF ALLEGING AND PROVING THE FACTS OF
THE CASE AND ESTABLISHING THE VALIDITY OF ITS CLAIM IN THE LIGHT OF THE
CONTRACT AND THE APPLICABLE TARIFFS."  THERE IS ALSO AUTHORITY THAT THE
PLAINTIFF HAS THE SAME BURDEN, ALTHOUGH SUING ON THE SUBSEQUENT BILL,
WHEN THE CLAIM FOR DAMAGES IS FOR THE AMOUNT OF THE DEDUCTION.  SUNCOOK
MILLS V. UNITED STATES, 44 F. SUPP. 744; EASTPORT S.S. CO. V. UNITED
STATES, 131 CT. CL. 210, 130 F. SUPP. 333; BUCH EXPRESS, INC. V. UNITED
STATES, 132 CT. CL. 772, 132 F. SUPP. 473.  (FN14)  WE DO NOT SEE THAT
A DIFFERENT ISSUE WAS SHAPED BY THE PLEADINGS IN THIS ACTION.  CF.
WISCONSIN CENTRAL R. CO. V. UNITED STATES, 164 U.S. 190, 212.  ALTHOUGH
THE AD DAMNUM CLAUSE OF THE COMPLAINT PRAYS RECOVERY OF $1,143.03,
RESPONDENT'S PLEADING FILED IN RESPONSE TO THE GOVERNMENT'S ANSWER
ADMITS THE GOVERNMENT PAYMENT OF $117.77, AND THAT THE ACTUAL
CONTROVERSY CONCERNS THE BALANCE OF $1,025.26.  THE TRUE DISPUTE
BETWEEN THE PARTIES, ARISING FROM THE DETERMINATION AND COLLECTION OF
THE OVERPAYMENTS AS AUTHORIZED BY SEC. 322, INVOLVES THE LAWFULNESS OF
THE 1944 BILLS.  IT IS THE SUBSTANCE, NOT THE FORM, WHICH SHOULD BE OUR
CONCERN.  CF. ALCOA S.S. CO. V. UNITED STATES, 338 U.S. 421; REYNOLDS
V. UNITED STATES, 292 U.S. 443.  WE HOLD THAT THE RESPONDENT IS
ENTITLED TO RECOVER ONLY IF IT SATISFIES ITS BURDEN OF PROVING THAT ITS
1944 CHARGES WERE COMPUTED AT LAWFUL AND AUTHORIZED RATES. 

WE DO NOT HERE INTIMATE THAT THE ADMINISTRATIVE DETERMINATION OF
OVERPAYMENT HAS BINDING EFFECT IN THE JUDICIAL PROCEEDING, SEE
WISCONSIN CENTRAL R. CO. V. UNITED STATES, SUPRA, AT 211; GRAND TRUNK
WESTERN R. CO. V. UNITED STATES, 252 U.S. 112, 120-121; AND WE AGREE
WITH THE COURT OF APPEALS THAT THE EXTRINSIC FACT, NAMELY THE
AVAILABILITY OF THE FREIGHT CARS IN THE SIZES ORDERED, REMAINS TO BE
PROVED IN THE SUIT.  OUR CONCLUSION IS THAT THE BURDEN IN THAT RESPECT
IS UPON THE CARRIER. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED WITH DIRECTION TO
REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED.    FN1  SECTION
322 OF THE TRANSPORTATION ACT OF SEPTEMBER 18, 1940, 54 STAT. 955, 49
U.S.C.  SEC. 66, PROVIDES AS FOLLOWS: 

"PAYMENT FOR TRANSPORTATION OF THE UNITED STATES MAIL AND OF PERSONS
OR PROPERTY FOR OR ON BEHALF OF THE UNITED STATES BY ANY COMMON CARRIER
SUBJECT TO THE INTERSTATE COMMERCE ACT, AS AMENDED, OR THE CIVIL
AERONAUTICS ACT OF 1938, SHALL BE MADE UPON PRESENTATION OF BILLS
THEREFOR, PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL ACCOUNTING
OFFICE, BUT THE RIGHT IS HEREBY RESERVED TO THE UNITED STATES
GOVERNMENT TO DEDUCT THE AMOUNT OF ANY OVERPAYMENT TO ANY SUCH CARRIER
FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE SUCH CARRIER."    FN2  24
STAT. 505, AS AMENDED, 28 U.S.C. SEC. 1346(A)(2). 

FN3  THE PLEADING IS CAPTIONED "PLAINTIFF'S ANSWER TO DEFENDANT'S
COUNTERCLAIM." 

FN4  GOVERNMENT ACCOUNTS GENERALLY ARE SUBJECT TO AUDIT PRIOR TO
PAYMENT.  33 OP. ATTY. GEN. 383.   PREPAYMENT EXAMINATION OF CLAIMS HAS
STATUTORY SUPPORT IN SEVERAL STATUTES.  SEE 55 STAT. 875, 31 U.S.C.
SEC. 82B; R.S. SEC. 3620, 31 U.S.C. SEC. 492; R.S. SEC. 3622, 31 U.S.C.
SEC. 496; R.S. SEC. 3623, 31 U.S.C. SEC. 498; R.S. SEC. 3633, 31 U.S.C.
SEC. 514; R.S. SEC. 3648, 31 U.S.C. SEC. 529; 37 STAT. 375, AS AMENDED,
31 U.S.C. SEC. 82; 55 STAT.  875, 31 U.S.C. SEC. 82C.  THE CLAIMANT
MUST FURNISH PROOF SATISFACTORILY ESTABLISHING HIS CLAIM.  CHARLES V.
UNITED STATES, 19 CT. CL. 316.  DOUBTFUL ACCOUNTS AND CLAIMS ARE
TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE FOR REVIEW.  SECTION 1 OF
G.A.O. GENERAL REGULATIONS NO. 50, APRIL 21, 1926, 4 CFR SEC. 4.1. 

FN5  THE CORRECTNESS OF THE 1944 BILLS TURNED ON THE DETERMINATION OF
FACT WHETHER FREIGHT CARS OF THE SHORTER LENGTHS ORDERED BY THE UNITED
STATES WERE AVAILABLE WHEN THE INITIAL CARRIER SUPPLIED CARS OF LARGER
SIZES.  A WARTIME MEASURE PERMITTED THE CHARGING OF THE TARIFFS
APPLICABLE TO THE CARS FURNISHED IF THE CARRIER COULD NOT SUPPLY CARS
OF THE SIZES ORDERED.  236 F.2D 101, 103.  THE GENERAL ACCOUNTING
OFFICE DETERMINED THE OVERPAYMENT ON A FINDING THAT THE DOCUMENTS
SHOWED THAT LONGER CARS WERE FURNISHED THAN WERE ORDERED.  ON THE
QUESTION OF WHETHER CARS OF THE SIZES ORDERED WERE AVAILABLE, THE
GOVERNMENT STATED ITS POSITION IN ANSWER TO INTERROGATIONS:  "SUCH
INFORMATION IS PECULIARLY WITHIN THE KNOWLEDGE OF PLAINTIFF
(RESPONDENT) AND/OR THE INITIAL CARRIER  ...  ."  THE ORDINARY RULE,
BASED ON CONSIDERATIONS OF FAIRNESS, DOES NOT PLACE THE BURDEN UPON A
LITIGANT OF ESTABLISHING FACTS PECULIARLY WITHIN THE KNOWLEDGE OF HIS
ADVERSARY.  CF. SELMA, R.&D.R. CO. V. UNITED STATES, 139 U.S. 560, 566;
UNITED STATES V. DENVER & R.G.R. CO., 191 U.S. 84, 91-92.  THE POSITION
OF THE RESPONDENT HEREIN IS THAT THE GOVERNMENT HAD ALL THE INFORMATION
KNOWN TO THE CARRIERS AS TO THE AVAILABILITY OF CARS OF THE SIZES
ORDERED. 

FN6  S. 3876, 75TH CONG., 3D SESS., INTRODUCED APRIL 20, 1938 (83
CONG. REC. 5569).  H.R. 10620, 75TH CONG., 3D SESS., INTRODUCED MAY 12,
1938 (83 CONG. REC. 6842). 

FN7  SEE, E.G., S. 1915, 76TH CONG., 1ST SESS., INTRODUCED MARCH 23,
1939 (84 CONG. REC.  3143); S. 1990, 76TH CONG., 1ST SESS., INTRODUCED
MARCH 30, 1939 (84 CONG. REC. 3509).  SECTION 1 OF BOTH OF THESE BILLS
DEALT WITH THE ELIMINATION OF LAND-GRANT RATES; SEC. 2 WITH THE PAYMENT
OF TRANSPORTATION BILLS UPON PRESENTATION. 

H.R. 2531, 76TH CONG., 1ST SESS., INTRODUCED JANUARY 13, 1939 (84
CONG. REC. 345); H.R. 4862, 76TH CONG., 1ST SESS., INTRODUCED MARCH 8,
1939 (84 CONG. REC. 2512).  SECTION 501 OF TITLE V OF H.R. 2531 AND
SECS. 201 AND 202 OF TITLE II OF H.R. 4862 CONCERNED GOVERNMENT
TRAFFIC.  THEIR PROVISIONS WERE SUBSTANTIALLY THE SAME AS THE
PROVISIONS IN S. 1915 AND 1990. 

FN8  H.R. REP. NO. 2016, 76TH CONG., 3D SESS.; H.R. REP. NO. 2832,
76TH  CONG., 3D SESS. 

FN9  THE POSTPAYMENT AUDIT OF TRANSPORTATION BILLS BY THE GENERAL
ACCOUNTING OFFICE HAS BEEN A LARGE-SCALE OPERATION SINCE ENACTMENT OF
SEC. 322.  FOR EXAMPLE, THE ANNUAL REPORT OF THE COMPTROLLER GENERAL
FOR THE FISCAL YEAR ENDING JUNE 30, 1951, PAGES 31-32, REPORTS THAT: 

"DURING THE FISCAL YEAR 1951, THERE WAS EXAMINED AND REVIEWED IN THE
REGULAR AUDIT OF FREIGHT TRANSPORTATION PAYMENTS - EXCLUSIVE OF SPECIAL
CASES - A TOTAL OF 633,706 VOUCHERS COVERING 2,569,198 BILLS OF LADING,
PAID IN THE SUM OF $350,341,941 AS TO WHICH THERE WERE STATED FOR
ISSUANCE 25,591 NOTICES OF OVERPAYMENT TOTALING $6,301,799.  THERE WAS
EXAMINED AND REVIEWED IN THE AUDIT OF PASSENGER TRANSPORTATION PAYMENTS
A TOTAL OF 400,639 VOUCHERS COVERING 2,917,633 TRANSPORATION REQUESTS,
PAID IN THE SUM OF $91,380,604, AS TO WHICH THERE WERE STATED FOR
ISSUANCE 11,015 NOTICES OF OVERPAYMENT TOTALING $672,708." 

A GENERAL PRACTICE OF MAKING REFUNDS FOLLOWING DETERMINATION OF
OVERPAYMENTS HAS APPARENTLY DEVELOPED UNDER SEC. 322.  A FOOTNOTE TO
THE GOVERNMENT'S BRIEF STATES: 

"WE ARE ADVISED BY THE GENERAL ACCOUNTING OFFICE THAT, DURING THE
FISCAL YEAR ENDING JUNE 30, 1956, CARRIERS REFUNDED A TOTAL OF
$40,941,188.78.  THE AMOUNT DEDUCTED FROM SUBSEQUENT BILLS DURING THAT
SAME PERIOD TOTALED $11,155,837.72.  DURING THE PRECEDING FISCAL YEAR,
THE TOTAL AMOUNT REFUNDED WAS APPROXIMATELY TWO AND ONE-HALF TIMES THE
AMOUNT DEDUCTED." 

FN10  HEARINGS BEFORE THE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE OF THE HOUSE OF REPRESENTATIVES ON H.R. 10620, 75TH CONG., 3D
SESS., JUNE 1, 1938, PP. 34-35. 

FN11  THE STATUTE WAS BROADENED BEFORE FINAL PASSAGE TO APPLY TO ANY
COMMON CARRIER SUBJECT TO THE INTERSTATE COMMERCE ACT, AS AMENDED, OR
THE CIVIL AERONAUTICS ACT OF 1938.  SEE HEARINGS BEFORE THE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE OF THE HOUSE OF REPRESENTATIVES ON
H.R. 2531, 76TH CONG., 1ST SESS., P. 472. 

FN12  THE PRIVATE SHIPPER MUST PAY FREIGHT CHARGES PROMPTLY AND HAS
NO EXPRESSED RIGHT OF OFFSET OF ANY OVERPAYMENT AGAINST CHARGES FOR
OTHER TRANSPORTATION SERVICES.  24 STAT. 380, AS AMENDED, 49 U.S.C.
SEC. 3(2).  A LIMITED EXCEPTION ALLOWS CARRIERS TO EXTEND CREDIT FOR A
PERIOD OF 96 HOURS TO PRIVATE SHIPPERS UNDER PRESCRIBED CONDITIONS AND
LIMITATIONS.  EX PARTE NO. 73, 57 I.C.C. 591. 

FN13  COMPARE THE PRACTICE FOLLOWED IN THE COURT OF CLAIMS, WHICH HAS
CONCURRENT JURISDICTION WITH THE DISTRICT COURT OF ACTIONS UNDER THE
TUCKER ACT.  A "MEMORANDUM ORDER AS TO PROCEDURE IN COMMON CARRIER
CASES," ISSUED MARCH 11, 1953, BY THE COURT OF CLAIMS (NOW, WITH SOME
AMENDMENTS, INCLUDED AS APPENDIX B IN THE RULES OF THE COURT OF CLAIMS,
REVISED DECEMBER 2, 1957), EXPRESSLY DEFINES THE "DISPUTE" IN CASES OF
THE INSTANT KIND, AMONG OTHERS, BROUGHT IN THAT COURT: 

"THE WORD 'DISPUTE'  ...  MEANS THE SHIPMENT OR SHIPMENTS WITH
RESPECT TO WHICH THE GENERAL ACCOUNTING OFFICE OR OTHER AGENCY OF THE
GOVERNMENT DETERMINED THAT THE CARRIER'S CHARGES HAD BEEN OVERPAID  ...
RATHER THAN SUBSEQUENT SHIPMENTS WHICH ARE NOT IN DISPUTE EXCEPT FOR
THE FACT THAT THE OVERPAYMENTS DETERMINED AS TO THE SHIPMENTS IN
DISPUTE HAVE BEEN DEDUCTED FROM THE AMOUNT OF THE CARRIER'S BILLS
COVERING SUCH SUBSEQUENT SHIPMENTS." 

THE MEMORANDUM PRESCRIBES A PROCEDURE FOR THE FRAMING OF THE ISSUES
ARISING FROM THE "DISPUTE" AS SO DEFINED.  THE CARRIER BRINGING THE
ACTION MUST FURNISH A DETAILED SCHEDULE AS TO "EACH OF THE CARRIER'S
BILLS FOR THE SHIPMENTS IN DISPUTE" AND IS REQUIRED ALSO TO FILE, AT
THE TIME OF ITS PETITION OR WITHIN 30 DAYS THEREAFTER, "A REQUEST FOR
ADMISSION BY THE DEFENDANT (UNITED STATES) OF THE GENUINENESS OF ANY
RELEVANT DOCUMENTS DESCRIBED IN AND EXHIBITED WITH THE REQUEST AND OF
THE TRUTH OF THE MATERIAL MATTERS OF FACT RELIED ON BY THE CARRIER FOR
RECOVERY IN THE ACTION."  THE STATEMENTS ARE EXPRESSLY REQUIRED TO BE
"SUFFICIENTLY EXPLICIT TO SHOW THE NATURE OF THE DISPUTE AND THE
SPECIFIC REASON OR REASONS WHY THE PLAINTIFF BELIEVES IT IS ENTITLED TO
RECOVER HIGHER RATES OR CHARGES THAN THOSE ALLOWED BY THE GOVERNMENT." 
FAILURE TO COMPLY WITH THE REQUIREMENTS OF THE MEMORANDUM MAY BE CAUSE
FOR THE IMPOSITION OF SANCTIONS, INCLUDING DISMISSAL OF THE CARRIER'S
PETITION. 

FN14  BUT SEE ATLANTIC COAST LINE R. CO. V. UNITED STATES, 136 CT.
CL. 1, 140 F. SUPP.  569, 572.  THE COURT OF CLAIMS THERE INDICATED
THAT THE BURDEN WOULD BE ON THE UNITED STATES WHILE HOLDING THAT THE
RAILROAD HAD THE DUTY TO PROVIDE ALL THE INFORMATION IT HAD ON THE
ISSUE OF AVAILABILITY OF CARS. 

MR. JUSTICE FRANKFURTER DISSENTS, ON THE BASIS OF THE OPINION OF
CHIEF JUDGE MAGRUDER IN THE COURT BELOW, 236 F.2D 101, AND MORE
PARTICULARLY BECAUSE THE RESPONDENT WAS NOT THE INITIAL CARRIER. 

                       APPENDIX TO OPINION OF THE COURT. 

THE LETTER, DATED OCTOBER 5, 1937, WAS ADDRESSED BY J.J. PELLEY,
PRESIDENT OF THE ASSOCIATION OF AMERICAN RAILROADS, TO CAPTAIN H.E.
COLLINS, ASSISTANT DIRECTOR, PROCUREMENT DIVISION, TREASURY DEPARTMENT,
AND READS: 

"DEAR CAPTAIN COLLINS: 

"THE RAILROADS MEMBERS OF THE ASSOCIATION OF AMERICAN RAILROADS,
WHICH COMPRISE ABOUT 98% OF ALL THE CLASS I RAILROADS IN THE UNITED
STATES, HAVE BEEN VERY MUCH CONCERNED BY THE LONG DELAY IN SECURING
PAYMENT FOR TRANSPORTATION SERVICES RENDERED FOR THE U.S. GOVERNMENT. 
WE KNOW FURTHER, FROM CONFERENCES WITH THE OFFICERS OF THE AMERICAN
SHORT LINE RAILROAD ASSOCIATION, THAT THEIR LINES HAVE BEEN AND ARE
EXPERIENCING SIMILAR DIFFICULTY.  THESE DELAYS ARE NOT JUSTIFIED AND
THE CARRIERS SHOULD NOT BE EXPECTED TO FINANCE THE GOVERNMENT AS THEY
ARE NOW DOING, INSOFAR AS TRANSPORTATION IS CONCERNED.  FURTHERMORE,
THE RAILROADS ARE NECESSARILY LARGE BORROWERS AND IN THAT CONNECTION
ARE REQUIRED AS A CONDITION TO THEIR OBTAINING THE NECESSARY CAPITAL TO
PAY SUBSTANTIAL INTEREST CHARGES ON ALL SUCH BORROWED MONEY, WHEREAS ON
THE OTHER HAND THE GOVERNMENT IS PAYING NO INTEREST ON ITS DELAYED
PAYMENTS TO THE RAILROAD COMPANIES, WHICH DELAYS IN MANY INSTANCES RUN
OVER A YEAR AND INVARIABLY ARE NOT SETTLED FOR SIXTY TO NINETY DAYS. 
ALTHOUGH THE RAILROADS PAY INTEREST FOR THE MONEY THEY BORROW, THEY
CANNOT UNDER THE LAW COLLECT INTEREST FROM THE GOVERNMENT NO MATTER HOW
LONG SETTLEMENTS MAY BE DELAYED.  THIS IS OBVIOUSLY UNFAIR. 

"UNDER THE LAW APPLICABLE TO COMMERCIAL SHIPPERS, TRANSACTIONS WITH
RAILROADS ARE REQUIRED TO BE ON SUBSTANTIALLY A CASH BASIS.  SHIPPERS
ARE REQUIRED TO PAY FREIGHT CHARGES WITHIN 48 HOURS, ON A MAJORITY OF
THE TRAFFIC, AND IN NO CASE ARE THEY PERMITTED CREDIT IN EXCESS OF 96
HOURS.  IT APPEARS TO US, AND PARTICULARLY UNDER THE PRESENT
UNFORTUNATE FINANCIAL POSITION OF THE RAILROADS, THAT THE CARRIERS
OUGHT TO RECEIVE SETTLEMENT FROM THE GOVERNMENT WITHIN 96 HOURS AFTER A
BILL HAS BEEN PRESENTED AND THAT WOULD BE POSSIBLE PROVIDING THE PROPER
MACHINERY WERE SET UP AND THE PROPER INSTRUCTIONS ISSUED. 

"THIS MATTER IS OF VERY MUCH GREATER IMPORTANCE TODAY THAN IT HAS
BEEN IN YEARS PAST, FOR THE REASON THAT UNDER PRESENT CONDITIONS THE
GOVERNMENT IS ENGAGED IN SHIPPING TO A VERY MUCH GREATER EXTENT THAN
EVER BEFORE.  DUE TO THE VARIOUS BUREAUS AND OTHER AGENCIES,
PARTICULARLY IN CONNECTION WITH RELIEF WORK AND IN CONNECTION WITH SOME
OF THE GOVERNMENTAL CORPORATIONS THAT HAVE BEEN ORGANIZED, THE
GOVERNMENT IS TODAY HANDLING MUCH TONNAGE WHICH WAS PREVIOUSLY
COMMERCIAL TRAFFIC SO THAT THE DELAY IN SETTLEMENT FOR THE
TRANSPORTATION CHARGES IS MUCH MORE SERIOUS TO THE RAILROADS TODAY THAN
WOULD HAVE BEEN THE CASE A DECADE AGO.  IT SHOULD ALSO BE BORNE IN MIND
IN CONNECTION WITH GOVERNMENT FREIGHT SHIPPED UNDER GOVERNMENT BILLS OF
LADING THE RAILROADS ARE UNDER THE LAW NOT ASSESSING THEIR COMMERCIAL
RATES BUT ARE MAKING SUCH DISCOUNTS AS THE LAW REQUIRES BECAUSE OF LAND
GRANTS AND WHICH IN MANY INSTANCES TODAY MEANS THE HANDLING OF THIS
TRAFFIC ON A BASIS BELOW THE ACTUAL COST OF PERFORMING THE SERVICE. 
THESE FACTS ARE MENTIONED ONLY AS INDICATING THE VERY GREAT IMPORTANCE
OF PROVIDING SOME SORT OF A SYSTEM WHICH WILL PERMIT THE MORE PROMPT
PAYMENT OF THESE CHARGES. 

"THAT YOU MAY HAVE A PICTURE OF THE SITUATION, YOUR ATTENTION IS
DIRECTED TO THE FACT THAT AS OF JULY 1, 1937, THERE WERE 94,182
OUTSTANDING UNPAID RAILROAD BILLS AGAINST THE GOVERNMENT AMOUNTING TO
$11,749,774, ALL OF WHICH BILLS HAD BEEN RENDERED PRIOR TO MAY 1, 1937,
AND OF THESE BILLS AND THIS AMOUNT THERE WAS UNPAID $4,683,946,
REPRESENTING 35,761 BILLS WHICH HAD BEEN RENDERED PRIOR TO JANUARY 1,
1937. 

"WE FEEL VERY SURE THAT YOU AND THE OTHER OFFICERS OF THE GOVERNMENT
WILL AGREE THAT THIS SITUATION IS ONE THAT IS GROSSLY UNFAIR AND THAT
CORRECTIVE ACTION SHOULD BE TAKEN THAT WILL RENDER IMPOSSIBLE SUCH LONG
DELAYS IN PAYMENT FOR SERVICES RENDERED. 

"WE ARE ALSO OF THE OPINION THAT IT IS NOT SUFFICIENT FOR US TO
SIMPLY COMPLAIN OF THIS SITUATION BUT THAT IN ADDITION THERETO WE OUGHT
TO SUGGEST A REMEDY WHICH IN OUR JUDGMENT IS BOTH PRACTICAL AND LEGAL
AND WHICH CAN EASILY BE MADE OPERATIVE WITHOUT THE ASSUMPTION OF ANY
RISK INSOFAR AS THE GOVERNMENT IS CONCERNED, PROVIDING YOU AND YOUR
ASSOCIATES WILL PUT THE SUGGESTED PLAN IN OPERATION AND WITH SUCH
INSTRUCTIONS ISSUED AS MAY BE NEEDED IN CONNECTION THEREWITH.  WITH
THIS THOUGHT IN MIND, WE VERY RESPECTFULLY SUBMIT FOR YOUR
CONSIDERATION THE FOLLOWING: 

"WE BELIEVE THAT THE DELAY IN THE PAYMENT OF TRANSPORTATION CHARGES
BY THE GOVERNMENT TO THE RAILROADS WOULD BE ABSOLUTELY AVOIDED IF THE
VARIOUS DEPARTMENTS CONTRACTING FOR TRANSPORTATION WERE INSTRUCTED TO
PAY THE BILLS AS RENDERED AND AFTER PAYMENT HAVE THESE BILLS REFERRED
TO THE GENERAL ACCOUNTING OFFICE OR SUCH OTHER GOVERNMENTAL AUDITING
OFFICE AS MIGHT BE DESIRED FOR AUDIT.  IN THE EVENT THAT THIS AUDIT
REVEALS AN OVER-PAYMENT, THEN CLAIM BE PRESENTED TO THE CARRIER FOR THE
AMOUNT THEREOF WHICH WILL BE PROMPTLY PAID BY THE RAILWAY, PRESERVING,
HOWEVER, THE RIGHT OF THE CARRIER TO MAKE FURTHER EFFORT TO RECOLLECT
IN THE EVENT THAT IT DOES NOT BELIEVE THE PROPER CHARGES RESULTED FROM
THE GOVERNMENT'S AUDIT.  ATTENTION IS FURTHER DIRECTED TO THE FACT THAT
THE RAILROADS WOULD NEVER HAVE, UNDER SUCH A PLAN, MORE MONEY THAN THE
GOVERNMENT LAWFULLY OWED FOR THE REASON THAT THE GOVERNMENT IS SHIPPING
DAILY AND IS CURRENTLY OBLIGATED TO THE RAILROAD COMPANIES FOR
TRANSPORTATION CHARGES.  THIS WOULD PLACE THE HANDLING OF GOVERNMENTAL
TRANSPORTATION CHARGES ON SUBSTANTIALLY THE SAME BASIS AS APPLIES IN
CONNECTION WITH COMMERCIAL TRANSACTIONS.    "I AM VERY SURE FROM OUR
PREVIOUS NEGOTIATONS WITH YOU AND OTHERS CONNECTED WITH THE GOVERNMENT
WITH REGARD TO THE SAME SUBJECT THAT THERE EXISTS NO DIFFERENCE AS
BETWEEN US AS TO THE NECESSITY OF MORE PROMPT PAYMENT THAN HAS
HERETOFORE PREVAILED.  I HOPE THAT YOU AND YOUR ASSOCIATES MAY CONSIDER
THE SUGGESTIONS CONTAINED HEREIN AS REASONABLE AND PRACTICAL AND THAT
WE MAY RELY UPON YOUR GOOD OFFICES TO BRING ABOUT SOME SUCH
ARRANGEMENT.  IT MAY BE THAT YOU MAY DESIRE TO DISCUSS THIS MATTER AND
PERHAPS MAKE SOME SUGGESTIONS THAT DIFFER SOMEWHAT FROM THE PLAN
PROPOSED HEREIN.  SHOULD THIS SITUATION DEVELOP, I WANT TO ASSURE YOU
THAT EITHER THE OFFICERS OF THIS ASSOCIATION OR THE APPROPRIATE
OFFICERS OF THIS ASSOCIATION WITH A COMMITTEE OF THE LINES WILL GLADLY
DISCUSS THE SUBJECT WITH YOU AT SUCH TIME AND PLACE AS MAY BE MUTUALLY
SATISFACTORY.  I FEEL SURE THAT WE BOTH DESIRE TO OBTAIN A VERY
SUBSTANTIAL IMPROVEMENT IN THE SITUATION THAT NOW EXISTS, AND I AM OF
THE OPINION THAT IF THESE MATTERS CAN BE HANDLED ALONG LINES SOMEWHAT
SIMILAR TO THOSE WHICH WE HAVE RECOMMENDED THAT IT WILL NOT ONLY CREATE
A MUCH BETTER FEELING AS BETWEEN THE RAILROADS AND THE GOVERNMENT, BUT
IN ADDITION THERETO WILL MATERIALLY REDUCE THE EXPENDITURES OF BOTH
PARTIES IN THE HANDLING OF THESE ACCOUNTS AND GIVE TO THE RAILROADS
MONEY WHICH IS DUE AND GREATLY NEEDED. 

"WITH VERY KINDEST REGARDS, I BEG TO REMAIN. 

             "YOURS MOST CORDIALLY,

                               "(SIGNED) J.J. PELLEY." 
..END :
























VIRGINIA V. MARYLAND 355 U.S. 269 


NO. 12, ORIGINAL.  ARGUED DECEMBER 10, 1957 - DECIDED DECEMBER 16,
1957. 


VIRGINIA GRANTED LEAVE TO FILE BILL OF COMPLAINT; MARYLAND TO FILE
ANSWER WITHIN 60 DAYS. 

VIRGINIA V. MARYLAND. 

ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT. 

PER CURIAM. 

THE COURT HAVING HEARD ORAL ARGUMENT BY THE ATTORNEYS GENERAL OF THE
STATES AND HAVING CONSIDERED THE PRINTED BRIEFS OF COUNSEL, THE COURT
IS OF THE OPINION THAT THE MOTION FOR LEAVE TO FILE THE BILL OF
COMPLAINT SHOULD BE GRANTED.  THE STATE OF MARYLAND IS DIRECTED TO FILE
AN ANSWER TO THE BILL OF COMPLAINT WITHIN 60 DAYS AND PROCESS IS
ORDERED TO ISSUE ACCORDINGLY. 
..END :









RAILWAY EXPRESS AGENCY, INC. V. UNITED STATES 355 U.S. 270 


NO. 557.  DECIDED DECEMBER 16, 1957 - 153 F. SUPP. 738, AFFIRMED. 


RAILWAY EXPRESS AGENCY, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















CARSON V. CITY OF WASHINGTON COURT HOUSE, OHIO 355 U.S. 270 


NO. 583.  DECIDED DECEMBER 16, 1957 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


CARSON V. CITY OF WASHINGTON COURT HOUSE, OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















NELSON V. TENNESSEE 355 U.S. 271 


NO. 56.  ARGUED DECEMBER 12, 1957 - DECIDED DECEMBER 16, 1957 -
CERTIORARI DISMISSED FOR WANT OF PROPERLY PRESENTED FEDERAL QUESTION. 
REPORTED BELOW:  200 TENN. 462, 292 S.W.2D 727. 


NELSON ET AL. V. TENNESSEE. 

CERTIORARI TO THE SUPREME COURT OF TENNESSEE, EASTERN DISTRICT. 

PER CURIAM. 

THE WRIT OF CERTIORARI IS DISMISSED FOR WANT OF A PROPERLY PRESENTED
FEDERAL QUESTION. 
..END :
















MACDONALD V. LASALLE NATIONAL BANK, CONSERVATOR 355 U.S. 271 


NO. 504.  DECIDED DECEMBER 16, 1957 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  11 ILL. 2D 122, 142
N.E.2D 58. 


MACDONALD V. LA SALLE NATIONAL BANK, CONSERVATOR. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















ROSENGARD V. CITY OF BOSTON 355 U.S. 272 


NO. 566.  DECIDED DECEMBER 16, 1957 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  336 MASS. 224, 143
N.E.2D 683. 


ROSENGARD ET AL. V. CITY OF BOSTON ET AL. 

APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SCHAFFER TRANSPORTATION CO. V. UNITED STATES 355 U.S. 83 


NO. 20.  ARGUED NOVEMBER 13, 1957 - DECIDED DECEMBER 9, 1957 - 139 F.
SUPP. 444, REVERSED AND REMANDED. 


THE INTERSTATE COMMERCE COMMISSION DENIED AN APPLICATION BY APPELLANT,
A COMMON CARRIER BY MOTOR TRUCK, FOR AUTHORITY UNDER SEC. 207(A) OF THE
MOTOR CARRIER ACT OF 1935, AS AMENDED BY THE TRANSPORTATION ACT OF
1940, TO TRANSPORT GRANITE BETWEEN VARIOUS POINTS NOW SERVED
EXCLUSIVELY BY RAIL.  CERTAIN SHIPPERS, RECEIVERS, AND AN ASSOCIATION
OF MANUFACTURERS OF FINISHED GRANITE PRODUCTS HAD TESTIFIED THAT THE
EXISTING RAIL SERVICE WAS SATISFACTORY FOR THE TRANSPORTATION OF
CARLOAD SHIPMENTS BUT ENTIRELY INADEQUATE FOR LESS-THAN-CARLOAD
SHIPMENTS, NOT ONLY FROM THE STANDPOINT OF COST BUT ALSO AND PRIMARILY
FROM A SERVICE STANDPOINT.  THE COMMISSION BASED ITS DENIAL OF THE
APPLICATION ON THE GROUNDS THAT THE RAIL SERVICE WAS "REASONABLY
ADEQUATE," THAT THE MAIN PURPOSE OF THESE WITNESSES IN SUPPORTING THE
APPLICATION WAS TO OBTAIN LOWER RATES RATHER THAN IMPROVED SERVICE AND
THAT THIS WAS NOT A PROPER BASIS FOR A GRANT OF AUTHORITY.  IT FAILED
TO EVALUATE THE "INHERENT ADVANTAGES" OF THE PROPOSED MOTOR SERVICE,
INCLUDING WHATEVER BENEFIT MIGHT BE DETERMINED TO EXIST FROM THE
STANDPOINT OF RATES, AND ITS FINDINGS AS TO THE ADEQUACY OF THE RAIL
SERVICE WERE NOT SUFFICIENT TO PROVIDE A BASIS FOR DETERMINING WHETHER
ITS DECISION COMPORTED WITH THE NATIONAL TRANSPORTATION POLICY.  HELD:
THE COMMISSION'S ORDER MUST BE SET ASIDE AND THE CASE REMANDED TO IT
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  PP. 84-93. 

(A)  UNDER THE NATIONAL TRANSPORTATION POLICY, WHEN A MOTOR CARRIER
SEEKS TO OFFER SERVICE WHERE ONLY RAIL TRANSPORTATION IS PRESENTLY
AUTHORIZED, THE "INHERENT ADVANTAGES" OF THE PROPOSED SERVICE ARE A
CRITICAL FACTOR WHICH THE COMMISSION MUST ASSESS.  PP. 88-90. 

(B)  THE RECORD DOES NOT DISCLOSE THE FACTORS WHICH THE COMMISSION
COMPARED IN CONCLUDING THAT EXISTING RAIL SERVICE IS "REASONABLY
ADEQUATE," AND IT DOES NOT PROVIDE THIS COURT WITH A BASIS FOR
DETERMINING WHETHER THE COMMISSION'S DECISION COMPORTS WITH THE
NATIONAL TRANSPORTATION POLICY.  PP. 90, 92. 

(C)  TO REJECT A MOTOR CARRIER'S APPLICATION ON THE BARE CONCLUSION
THAT EXISTING RAIL SERVICE CAN MOVE THE AVAILABLE TRAFFIC, WITHOUT
REGARD TO THE INHERENT ADVANTAGES OF THE PROPOSED SERVICE, WOULD GIVE
ONE MODE OF TRANSPORTATION UNWARRANTED PROTECTION FROM COMPETITION FROM
OTHERS.  PP. 90-91. 

(D)  NO CARRIER IS ENTITLED TO PROTECTION FROM COMPETITION IN THE
CONTINUANCE OF A SERVICE THAT FAILS TO MEET A PUBLIC NEED, NOR SHOULD
THE PUBLIC BE DEPRIVED OF A NEW AND IMPROVED SERVICE BECAUSE IT MAY
DIVERT SOME TRAFFIC FROM OTHER CARRIERS.  P. 91. 

(E) THE ABILITY OF ONE MODE OF TRANSPORTATION TO OPERATE WITH A RATE
LOWER THAN COMPETING TYPES OF TRANSPORTATION IS PRECISELY THE SORT OF
"INHERENT ADVANTAGE" THAT THE NATIONAL TRANSPORTATION POLICY REQUIRES
THE COMMISSION TO RECOGNIZE.  PP. 91-92. 

SCHAFFER TRANSPORTATION CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH
DAKOTA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER THE INTERSTATE COMMERCE COMMISSION
ADEQUATELY AND CORRECTLY APPLIED THE STANDARDS OF THE NATIONAL
TRANSPORTATION POLICY IN DENYING A MOTOR CARRIER'S APPLICATION TO
PROVIDE SERVICE BETWEEN POINTS NOW SERVED EXCLUSIVELY BY RAIL.  THE
APPLICANT, A.W. SCHAFFER, A COMMON CARRIER BY MOTOR DOING BUSINESS AS
SCHAFFER TRANSPORTATION CO., HOLDS A CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY AUTHORIZING HIM TO TRANSPORT GRANITE FROM GRANT COUNTY,
SOUTH DAKOTA, TO POINTS IN 15 STATES.  IN THE PRESENT APPLICATION HE
SOUGHT ADDITIONAL AUTHORITY UNDER SEC. 207(A) OF THE MOTOR CARRIER ACT
OF 1935, AS AMENDED BY THE TRANSPORTATION ACT OF 1940, (FN1) TO
TRANSPORT GRANITE FROM GRANT COUNTY TO VARIOUS NEW POINTS AS WELL AS
AUTHORITY TO TRANSPORT FROM POINTS IN VERMONT TO SEVERAL STATES IN THE
MIDWEST AND SOUTH.  (FN2)  FROM ALL THAT APPEARS IN THE COMMISSION'S
REPORT, RAIL SERVICE IS CURRENTLY THE ONLY MODE OF TRANSPORTATION
AVAILABLE TO SHIPPERS OF GRANITE BETWEEN THE POINTS SOUGHT TO BE SERVED
BY SCHAFFER. 

THE EVIDENCE ADDUCED TO DEMONSTRATE THE NEED FOR SCHAFFER'S SERVICE
CAME FROM THREE SHIPPERS, SIX RECEIVERS AND AN ASSOCIATION COMPOSED
PRIMARILY OF VERMONT MANUFACTURERS OF FINISHED GRANITE PRODUCTS.  THEIR
EVIDENCE, AS SUMMARIZED IN THE REPORT OF DIVISION 5 OF THE COMMISSION,
DISCLOSED THE FOLLOWING ADVANTAGES TO BE GAINED FROM MOTOR CARRIER
SERVICE:  (FN3) 

"THEY ALL AGREE THAT (EXISTING RAIL) SERVICE, IN THE MAIN, IS
SATISFACTORY FOR THE TRANSPORTATION OF CARLOAD SHIPMENTS BUT ENTIRELY
INADEQUATE FOR THE TRANSPORTATION OF LESS-THAN-CARLOAD SHIPMENTS, NOT
ONLY FROM THE STANDPOINT OF COST, BUT ALSO AND PRIMARILY FROM A SERVICE
STANDPOINT.  IN THIS RESPECT, THE RECORD SHOWS THAT ON MOVEMENTS OF
SMALL SHIPMENTS THE SUPPORTING WITNESSES HAVE EXPERIENCED DELAYS,
DAMAGE TO THEIR MERCHANDISE, AND HAVE BEEN HAMPERED TO SOME DEGREE BY
THE LACK OR INSUFFICIENCY OF RAIL SIDINGS.  IN MANY INSTANCES, THEY
HAVE BEEN ASKED BY CUSTOMERS TO FURNISH DELIVERY BY MOTOR CARRIER BUT
BECAUSE OF THE LACK OF SUCH SERVICE THEY HAVE BEEN UNABLE TO COMPLY
WITH THESE REQUESTS.  MOREOVER, AND NO LESS IMPORTANT FROM A BUSINESS
POINT OF VIEW, THE SHIPPERS ARE FACED WITH THE COMPETITIVE DISADVANTAGE
OF HAVING TO COMPETE WITH PRODUCERS OF GRANITE AT OTHER LOCATIONS WHICH
HAVE TRUCK DELIVERY AVAILABLE.  THEN, TOO, THE LACK OF TRUCK SERVICE
HAS IMPEDED SHIPPERS' ABILITY TO INCREASE THEIR SALES AND EXPAND THEIR
MARKETS IN THIS AREA.  BY USE OF THE PROPOSED SERVICE, CERTAIN OTHER
BENEFITS ALSO WOULD ACCRUE TO THE SHIPPERS OR DEALERS.  FOR EXAMPLE,
THE LATTER WOULD BE ABLE TO MAINTAIN LOWER INVENTORIES, RECEIVE THEIR
FREIGHT FASTER AND MORE FREQUENTLY, AND THUS, BE ABLE BETTER TO MEET
ERECTION DEADLINES, ESPECIALLY DURING THE PEAK SEASONS.   FURTHERMORE,
THE AMOUNT OF CRATING NOW NECESSARY WOULD BE REDUCED WITH RESULTANT
SAVINGS IN TIME AND MONEY." 

RELYING ON THESE FACTORS, DIVISION 5 APPROVED THE APPLICATION, BUT
THE FULL COMMISSION RECONSIDERED THE APPLICATION ON THE SAME RECORD,
AND, WITH FOUR COMMISSIONERS DISSENTING, ORDERED IT DENIED.  A.W.
SCHAFFER EXTENSION - GRANITE, 63 M.C.C. 247.  SCHAFFER BROUGHT AN
ACTION BEFORE A STATUTORY THREE-JUDGE COURT UNDER 49 U.S.C. SEC. 305(G)
TO SET THE ORDER ASIDE.  THE DISTRICT COURT DENIED RELIEF AND ORDERED
THE COMPLAINT DISMISSED.  139 F. SUPP.  444.  THE CASE IS HERE ON
DIRECT APPEAL.  (FN4)  28 U.S.C. SECS. 1253, 2101(B).  WE NOTED
PROBABLE JURISDICTION.  352 U.S. 923. 

THE NATIONAL TRANSPORTATION POLICY, (FN5) FORMULATED BY CONGRESS,
SPECIFIES IN ITS TERMS THAT IT IS TO GOVERN THE COMMISSION IN THE
ADMINISTRATION AND ENFORCEMENT OF ALL PROVISIONS OF THE ACT, AND THIS
COURT HAS MADE IT CLEAR THAT THIS POLICY IS THE YARDSTICK BY WHICH THE
CORRECTNESS OF THE COMMISSION'S ACTIONS WILL BE MEASURED.  DIXIE
CARRIERS, INC. V. UNITED STATES, 351 U.S. 56; EASTERN-CENTRAL MOTOR
CARRIERS ASSN. V. UNITED STATES, 321 U.S. 194; MCLEAN TRUCKING CO. V.
UNITED STATES, 321 U.S. 67.  OF COURSE, THE COMMISSION POSSESSES A
"WIDE RANGE OF DISCRETIONARY AUTHORITY" IN DETERMINING WHETHER THE
PUBLIC INTEREST WARRANTS CERTIFICATION OF ANY PARTICULAR PROPOSED
SERVICE.  UNITED STATES V. DETROIT & CLEVELAND NAVIGATION CO., 326 U.S.
236, 241; INTERSTATE COMMERCE COMMISSION V. PARKER, 326 U.S. 60.  BUT
THAT DISCRETION MUST BE EXERCISED IN CONFORMITY WITH THE DECLARED
POLICIES OF THE CONGRESS.  TO SEE WHETHER THOSE POLICIES HAVE BEEN
IMPLEMENTED WE LOOK TO THE COMMISSION'S OWN SUMMARY OF THE EVIDENCE,
AND PARTICULARLY TO THE FINDINGS, FORMAL OR OTHERWISE, WHICH THE
COMMISSION HAS MADE.  JUST AS WE WOULD OVERSTEP OUR DUTY BY UNDERTAKING
TO EVALUATE THE EVIDENCE ACCORDING TO OUR OWN NOTIONS OF THE PUBLIC
INTEREST, WE WOULD SHIRK OUR DUTY WERE WE SUMMARILY TO APPROVE THE
COMMISSION'S EVALUATION OF THE RECORD WITHOUT DETERMINING THAT THE
AGENCY'S EVALUATION HAD BEEN MADE IN ACCORDANCE WITH THE MANDATE OF
CONGRESS. 

THE COMMISSION DENIED SCHAFFER'S APPLICATION ON THE FOLLOWING BASIS: 

"ON THE FOREGOING FACTS, WE ARE UNABLE TO CONCLUDE THAT THE PUBLIC
CONVENIENCE AND NECESSITY REQUIRE THE PROPOSED OPERATION.  IT IS SEEN
THAT FOR ONE REASON OR ANOTHER THE SUPPORTING WITNESSES FIND FAULT WITH
THE PRESENTLY UTILIZED RAIL SERVICE.  ACTUALLY, HOWEVER, THE EVIDENCE
WARRANTS THE CONCLUSION THAT THE WITNESSES ARE REASONABLY SATISFIED
WITH RAIL SERVICE EXCEPT FOR THE ONE COMPLAINT THAT ALL SHARE, NAMELY,
THAT RAIL SERVICE IS TOO SLOW.  NEVERTHELESS, IT IS THE PRACTICE FOR
THE VERMONT SHIPPERS TO HOLD FINISHED GRANITE UNTIL THEY CAN ACCUMULATE
A POOL-CAR LOAD IN ORDER THAT THE SHIPMENTS MAY MOVE AT THE LOWER POOL
CAR RATE.  THIS PRACTICE IS FOLLOWED WITH THE KNOWLEDGE AND CONSENT OF
THE CONSIGNEES, AND THE SOLE PURPOSE THEREIN IS TO TAKE ADVANTAGE OF
THE LOWER RAIL RATE.  LESS-THAN-CARLOAD RAIL SERVICE, WHILE NOT AS
EXPEDITIOUS AS THE PROPOSED SERVICE, IS FAIRLY GOOD, BUT BECAUSE OF THE
HIGHER RATE INVOLVED THIS SERVICE IS SELDOM USED BY THE SUPPORTING
WITNESSES.  THE TESTIMONY OF THE SOUTH DAKOTA SHIPPER ALSO INDICATES
THAT ITS SUPPORT OF THE APPLICATION IS LARGELY MOTIVATED BY ANTICIPATED
CHEAPER TRANSPORTATION. 

"WE HAVE CAREFULLY CONSIDERED APPLICANT'S ARGUMENTS TO THE CONTRARY,
BUT ARE FORCED TO CONCLUDE THAT THE SERVICE PRESENTLY AVAILABLE IS
REASONABLY ADEQUATE.  THE EVIDENCE INDICATES THAT THE WITNESSES' MAIN
PURPOSE IN SUPPORTING THE APPLICATION IS TO OBTAIN LOWER RATES RATHER
THAN IMPROVED SERVICE.  IT IS WELL ESTABLISHED THAT THIS IS NOT A
PROPER BASIS FOR A GRANT OF AUTHORITY, AND THE APPLICATION, THEREFORE,
MUST BE DENIED." 

VIEWING THESE CONCLUSIONS IN LIGHT OF THE NATIONAL TRANSPORTATION
POLICY WE FIND AT THE OUTSET THAT THERE HAS BEEN NO EVALUATION MADE OF
THE "INHERENT ADVANTAGES" OF THE MOTOR SERVICE PROPOSED BY THE
APPLICANT.  THAT POLICY REQUIRES THE COMMISSION TO ADMINISTER THE ACT
SO AS TO "RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES" OF EACH MODE
OF TRANSPORTATION.  DIXIE CARRIERS, INC. V. UNITED STATES, SUPRA;
INTERSTATE COMMERCE COMMISSION V. MECHLING, 330 U.S. 567.  WHEN A MOTOR
CARRIER SEEKS TO OFFER SERVICE WHERE ONLY RAIL TRANSPORTATION IS
PRESENTLY AUTHORIZED, THE INHERENT ADVANTAGES OF THE PROPOSED SERVICE
ARE A CRITICAL FACTOR WHICH THE COMMISSION MUST ASSESS.  HOW
SIGNIFICANT THESE ADVANTAGES ARE IN A GIVEN FACTUAL CONTEXT AND WHAT
NEED EXISTS FOR A SERVICE THAT CAN SUPPLY THESE ADVANTAGES ARE
CONSIDERATIONS FOR THE COMMISSION. 

RATHER THAN EVALUATE THE BENEFIT THAT SCHAFFER'S PROPOSED MOTOR
SERVICE MIGHT BRING TO THE PUBLIC, THE COMMISSION CAST ITS FIRST
PRINCIPAL CONCLUSION IN TERMS OF THE ADEQUACY OF EXISTING RAIL SERVICE,
FINDING THAT SERVICE TO BE "REASONABLY ADEQUATE."  YET THE COMMISSION
ITSELF HAS PREVIOUSLY STATED:  "THAT A PARTICULAR POINT HAS ADEQUATE
RAIL SERVICE IS NOT A SUFFICIENT REASON FOR DENIAL OF A CERTIFICATE (TO
A MOTOR CARRIER)."  BOWLES COMMON CARRIER APPLICATION, 1 M.C.C. 589,
591.  OF COURSE, ADEQUACY OF RAIL SERVICE IS A RELEVANT CONSIDERATION,
BUT AS THE COMMISSION RECOGNIZED IN METLER EXTENSION - CRUDE SULPHUR,
62 M.C.C. 143, 148, "RELATIVE OR COMPARATIVE ADEQUACY" OF THE EXISTING
SERVICE IS THE SIGNIFICANT CONSIDERATION WHEN THE INTERESTS OF
COMPETITION ARE BEING RECONCILED WITH THE POLICY OF MAINTAINING A SOUND
TRANSPORTATION SYSTEM.  THE RECORD HERE DOES NOT DISCLOSE THE FACTORS
THE COMMISSION COMPARED IN CONCLUDING THAT EXISTING RAIL SERVICE IS
"REASONABLY ADEQUATE."  FOR EXAMPLE, THE COMMISSION HAS NOT DETERMINED
WHETHER THERE ARE BENEFITS THAT MOTOR SERVICE WOULD PROVIDE WHICH ARE
NOT NOW BEING PROVIDED BY THE RAIL CARRIERS, WHETHER CERTIFICATION OF A
MOTOR CARRIER WOULD BE "UNDULY PREJUDICIAL" (FN6) TO THE EXISTING
CARRIERS, AND WHETHER ON BALANCE THE PUBLIC INTEREST WOULD BE BETTER
SERVED BY ADDITIONAL COMPETITIVE SERVICE.  TO REJECT A MOTOR CARRIER'S
APPLICATION ON THE BARE CONCLUSION THAT EXISTING RAIL SERVICE CAN MOVE
THE AVAILABLE TRAFFIC, WITHOUT REGARD TO THE INHERENT ADVANTAGES OF THE
PROPOSED SERVICE, WOULD GIVE ONE MODE OF TRANSPORTATION UNWARRANTED
PROTECTION FROM COMPETITION FROM OTHERS.  AS THE REPORT OF DIVISION 5
EMPHASIZES, "NO CARRIER IS ENTITLED TO PROTECTION FROM COMPETITION IN
THE CONTINUANCE OF A SERVICE THAT FAILS TO MEET A PUBLIC NEED, NOR, BY
THE SAME TOKEN, SHOULD THE PUBLIC BE DEPRIVED OF A NEW AND IMPROVED
SERVICE BECAUSE IT MAY DIVERT SOME TRAFFIC FROM OTHER CARRIERS." 

THE COMMISSION'S SECOND BASIC CONCLUSION FROM THE RECORD WAS THAT THE
MAIN PURPOSE OF THE WITNESSES IN SUPPORTING THE APPLICATION WAS THE
PROSPECT OF OBTAINING LOWER RATES.  FOR THIS REASON THE COMMISSION
DISCOUNTED THE TESTIMONY OF THESE WITNESSES, APPARENTLY WITHOUT EVEN
EVALUATING THE CLAIMED ADVANTAGES OF THE PROPOSED SERVICE OTHER THAN
REDUCED RATES.  WE THINK THIS APPROACH RUNS COUNTER TO THE NATIONAL
TRANSPORTATION POLICY.  THE ABILITY OF ONE MODE OF TRANSPORTATION TO
OPERATE WITH A RATE LOWER THAN COMPETING TYPES OF TRANSPORTATION IS
PRECISELY THE SORT OF "INHERENT ADVANTAGE" THAT THE CONGRESSIONAL
POLICY REQUIRES THE COMMISSION TO RECOGNIZE.  DIXIE CARRIERS, INC. V.
UNITED STATES, SUPRA.  THE COMMISSION ASSERTS THAT IT HAS ALWAYS
CONSIDERED RATES IRRELEVANT IN CERTIFICATION PROCEEDINGS UNDER SEC.
207(A), YET, WITH BUT ONE EXCEPTION, IT RELIES ON ADMINISTRATIVE
DECISIONS INVOLVING APPLICATIONS BY A CARRIER TO PROVIDE SERVICE TO AN
AREA ALREADY SERVED BY THE SAME MODE OF TRANSPORTATION.  (FN7)  THOSE
DECISIONS ARE ENTIRELY DIFFERENT FROM THE SITUATION PRESENTED HERE,
WHERE A MOTOR CARRIER SEEKS TO COMPETE FOR TRAFFIC NOW HANDLED
EXCLUSIVELY BY RAIL SERVICE.  IN THESE CIRCUMSTANCES A RATE BENEFIT
ATTRIBUTABLE TO DIFFERENCES BETWEEN THE TWO MODES OF TRANSPORTATION IS
AN "INHERENT ADVANTAGE" OF THE COMPETING TYPE OF CARRIER AND CANNOT BE
IGNORED BY THE COMMISSION. 

SINCE THE COMMISSION HAS FAILED TO EVALUATE THE BENEFITS THAT
SCHAFFER'S PROPOSED SERVICE WOULD PROVIDE THE PUBLIC, INCLUDING
WHATEVER BENEFIT MAY BE DETERMINED TO EXIST FROM THE STANDPOINT OF
RATES, AND SINCE THE FINDINGS AS TO THE ADEQUACY OF RAIL SERVICE DO NOT
PROVIDE THIS COURT WITH A BASIS FOR DETERMINING WHETHER THE
COMMISSION'S DECISION COMPORTS WITH THE NATIONAL TRANSPORTATION POLICY,
THAT DECISION MUST BE SET ASIDE, AND THE COMMISSION MUST PROCEED
FURTHER IN LIGHT OF WHAT WE HAVE SAID. 

WE DO NOT MINIMIZE THE COMPLEXITY OF THE TASK THE COMMISSION FACES IN
EVALUATING AND BALANCING THE NUMEROUS CONSIDERATIONS THAT COLLECTIVELY
DETERMINE WHERE THE PUBLIC INTEREST LIES IN A PARTICULAR SITUATION. 
AND WE DO NOT SUGGEST THAT THE NATIONAL TRANSPORTATION POLICY IS A SET
OF SELF-EXECUTING PRINCIPLES THAT INEVITABLY POINT THE WAY TO A CLEAR
RESULT IN EACH CASE.  ON THE CONTRARY, THOSE PRINCIPLES OVERLAP AND MAY
CONFLICT, AND, WHERE THIS OCCURS, RESOLUTION IS THE TASK OF THE AGENCY
THAT IS EXPERT IN THE FIELD.  BUT THERE IS HERE NO INDICATION IN THE
COMMISSION'S FINDINGS OF A CONFLICT OF POLICIES.  SHIPPERS AND
RECEIVERS NOW SERVED EXCLUSIVELY BY RAIL HAVE TESTIFIED TO THE
ADVANTAGES THEY WOULD GAIN FROM A PROPOSED MOTOR CARRIER SERVICE. 
THERE IS NO FINDING THAT THE AUTHORIZATION OF THE PROPOSED SERVICE
WOULD IMPAIR THE SOUND OPERATION OF THE CARRIERS ALREADY CERTIFICATED. 
NOR HAS THE COMMISSION PROPERLY EVALUATED THE ADVANTAGES URGED BY THE
SUPPORTING WITNESSES TO DETERMINE WHETHER THE STANDARD OF PUBLIC
CONVENIENCE AND NECESSITY HAS BEEN MET. 

FOR THE FOREGOING REASONS, THE JUDGMENT IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO SET ASIDE THE
COMMISSION'S ORDER AND REMAND THE CAUSE TO THE COMMISSION FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  49 STAT. 551, AS AMENDED, 54 STAT. 923, 49 U.S.C. SEC. 307(A). 

"(A) SUBJECT TO SECTION 210, A CERTIFICATE SHALL BE ISSUED TO ANY
QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE WHOLE OR ANY PART OF THE
OPERATIONS COVERED BY THE APPLICATION, IF IT IS FOUND THAT THE
APPLICANT IS FIT, WILLING, AND ABLE PROPERLY TO PERFORM THE SERVICE
PROPOSED AND TO CONFORM TO THE PROVISIONS OF THIS PART AND THE
REQUIREMENTS, RULES, AND REGULATIONS OF THE COMMISSION THEREUNDER, AND
THAT THE PROPOSED SERVICE, TO THE EXTENT TO BE AUTHORIZED BY THE
CERTIFICATE, IS OR WILL BE REQUIRED BY THE PRESENT OR FUTURE PUBLIC
CONVENIENCE AND NECESSITY; OTHERWISE SUCH APPLICATION SHALL BE DENIED
...  ."    FN2  A PORTION OF THE REQUESTED EAST-BOUND AUTHORITY WAS
OPPOSED BY A MOTOR CARRIER ALREADY CERTIFICATED TO SERVE POINTS IN FIVE
OF THE EASTERN STATES.  THIS PORTION OF THE REQUESTED AUTHORITY WAS
DENIED BY DIVISION 5 OF THE COMMISSION AND IS NO LONGER IN ISSUE AS
SCHAFFER DID NOT SEEK RECONSIDERATION.  WITH THIS EXCEPTION, THE
REQUESTED AUTHORITY WAS OPPOSED SOLELY BY RAILROADS WHICH PRESENTLY
SERVE THE POINTS INVOLVED. 

FN3  WHETHER THESE ADVANTAGES DEMONSTRATE THAT THE PUBLIC CONVENIENCE
AND NECESSITY REQUIRED SCHAFFER'S PROPOSED SERVICE IS NOT FOR US TO
SAY.  WE TAKE NOTE OF THEM ONLY TO INDICATE THAT SOME SHOWING OF NEED
WAS ESTABLISHED. 

FN4  THE AMERICAN TRUCKING ASSOCIATION, INC., WAS A PLAINTIFF BELOW
AND IS AN APPELLANT HERE.  THE UNITED STATES SUPPORTED THE ICC'S ORDER
IN THE DISTRICT COURT BUT HAS SINCE CONCLUDED "ON FURTHER ANALYSIS"
THAT THE ORDER IS ERRONEOUS; THE UNITED STATES THEREFORE OPPOSED IN
THIS COURT THE COMMISSION'S MOTION TO AFFIRM AND BOTH FILED A BRIEF AND
PRESENTED ORAL ARGUMENT IN SUPPORT OF APPELLANTS.  FIFTY-FOUR
RAILROADS, PRESENTLY SERVING THE AREAS FOR WHICH SCHAFFER SEEKS
OPERATING AUTHORITY, APPEAR AS APPELLEES ALONG WITH THE COMMISSION. 

FN5  "IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY
OF THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL
MODES OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY."  54 STAT. 899, 49 U.S.C. PRECEDING SEC. 1. 

FN6  INTERSTATE COMMERCE COMMISSION V. PARKER, 326 U.S. 60, 70. 

THE COMMISSION DID NOT PURPORT TO RELY ON ANY EVIDENCE INDICATING
WHAT REVENUE THE RAILROADS MIGHT LOSE BY CERTIFICATION OF THE
APPLICANT. 

FN7  OMAHA & C.B. RY. & BRIDGE CO. COMMON CARRIER APPLICATION, 52
M.C.C. 207, 234-235; POMPROWITZ EXTENSION - PACKING HOUSE PRODUCTS, 51
M.C.C. 343, 347-348; BLACK EXTENSION OF OPERATIONS - PREFABRICATED
HOUSES, 48 M.C.C. 695, 708-709; JOHNSON COMMON CARRIER APPLICATION, 18
M.C.C. 194, 195-196; WELLSPEAK COMMON CARRIER APPLICATION, 1 M.C.C.
712, 714. 

IN THE ONE EXCEPTION, YOUNGBLOOD EXTENSION OF OPERATIONS - CANTON,
N.C., 8 M.C.C. 193, THE MOTOR CARRIER'S APPLICATION WAS OPPOSED BY
OTHER MOTOR CARRIERS. 

MR. JUSTICE FRANKFURTER. 

THE TRANSPORTATION ACT OF 1940 (AMENDING THE INTERSTATE COMMERCE ACT)
GRANTS TO THE INTERSTATE COMMERCE COMMISSION POWERS AND IMPOSES
LIMITATIONS UPON THEIR EXERCISE IN TERMS OF GREATLY VARYING DEGREES OF
DEFINITENESS.  AS A CONSEQUENCE, THE RANGE OF DISCRETION LEFT TO THE
COMMISSION AND, CORRESPONDINGLY, THE SCOPE OF JUDICIAL REVIEW OF
COMMISSION ORDERS GREATLY VARY.  THUS, OUR DECISION THIS DAY IN NOS. 6
AND 8, AMERICAN TRUCKING ASSOCIATIONS V. UNITED STATES, POST, P. 141,
IS A STRIKING ILLUSTRATION OF THE DIFFERENCE BETWEEN THE LIMITATION TO
WHICH THE COMMISSION IS SUBJECTED IN A PROCEEDING UNDER SEC. 5(2)(B) OF
THE INTERSTATE COMMERCE ACT, 24 STAT. 379, AS AMENDED, 49 U.S.C. SEC.
5(2)(B), AND THE REQUIREMENTS OF SEC. 207 OF THAT ACT, AS AMENDED BY 49
STAT. 551, 49 U.S.C. SEC. 307, ALTHOUGH BOTH RELATE TO MOTOR CARRIER
SERVICE BY RAILROADS.  THE COMMISSION'S POWER TO GRANT RELIEF UNDER THE
UNDEFINED TERMS OF THE LONG-AND-SHORT-HAUL CLAUSE OF SEC. 4 OF THAT
ACT, AS AMENDED BY THE MANN-ELKINS ACT OF JUNE 18, 1910, 36 STAT. 539,
547, SEE INTERMOUNTAIN RATE CASES, 234 U.S. 476, WAS MODIFIED BY THE
SPECIFIC REQUIREMENTS WHICH CONGRESS WROTE INTO THE LONG-AND-SHORT-HAUL
CLAUSE IN SEC. 6 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 904, 49
U.S.C. SEC. 4(1).  IN SHORT, SOME RULES DEALING WITH THE REGULATION OF
SURFACE TRANSPORTATION ARE NARROWLY SPECIFIC, LEAVING PRACTICALLY NO
SCOPE FOR DISCRETION IN THEIR APPLICATION BY THE INTERSTATE COMMERCE
COMMISSION.  OTHER PROVISIONS ARE EXPRESSED IN TERMS WHICH NECESSARILY
LEAVE CONSIDERABLE SCOPE IN THE EVALUATION OF THEIR IMPLIED
INGREDIENTS, WHILE STILL OTHERS ARE OF SUCH BREADTH AS TO LEAVE EVEN
WIDER OPPORTUNITY FOR AN EXERCISE OF JUDGMENT BY THE COMMISSION NOT TO
BE DISPLACED BY A COURT'S INDEPENDENT JUDGMENT UNDER THE GUISE OF
JUDICIAL REVIEW. 

IN THE CASE BEFORE US, THE INTERSTATE COMMERCE COMMISSION DENIED AN
APPLICATION FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY UNDER
SEC. 207(A) OF THE INTERSTATE COMMERCE ACT, AS AMENDED.  ON REVIEW OF
THIS DENIAL, THE THREE-JUDGE DISTRICT COURT SUSTAINED THE COMMISSION. 
THIS COURT REVERSES THE DISTRICT COURT ON THE GROUND THAT THE
COMMISSION HAS FAILED TO ENFORCE THE NATIONAL TRANSPORTATION POLICY IN
SEC. 1 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 899, 49 U.S.C., AT
P. 7107.  THE VERY NAME OF THESE INTRODUCTORY RECITALS TO THE
TRANSPORTATION ACT ILLUMINES THEIR LEGAL SIGNIFICANCE:  "ALL OF THE
PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW
TO CARRYING OUT THE ABOVE DECLARATION OF POLICY."  CONGRESS THUS
CONVEYED TO THE COMMISSION A MOST GENERALIZED POINT OF VIEW FOR
CARRYING OUT ITS MANIFOLD, COMPLICATED AND FREQUENTLY ELUSIVE DUTIES. 
IN THE VERY NATURE OF THINGS THIS POLICY IS UNLIKE A MORE OR LESS
SPECIFIC RULE AFFORDING MORE OR LESS DEFINED CRITERIA FOR APPLICATION
IN A PARTICULAR CASE.  STILL LESS DOES IT AFFORD CONCRETE, DEFINABLE
CRITERIA FOR JUDICIAL OVERTURNING OF THE COMMISSION'S CONSCIENTIOUS
ATTEMPT TO TRANSLATE SUCH POLICY INTO CONCRETENESS IN A PARTICULAR
CASE. 

NO DOUBT THE COMMISSION IS UNDER OBLIGATION TO HEED WHAT WAS DECLARED
TO BE "THE NATIONAL TRANSPORTATION POLICY OF THE CONGRESS," NAMELY, "TO
PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES OF
TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO ADMINISTERED
AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF EACH."  SURELY
THESE ARE NOT MECHANICAL OR SELF-DEFINING STANDARDS.  THEY INEVITABLY
IMPLY THE WIDEST AREAS FOR JUDGMENT TO BE EXERCISED, AS THE COMMISSION
HAS SOUGHT TO EXERCISE IT, WITH THE MASSIVE EXPERIENCE WHICH MUST BE
ATTRIBUTED TO IT IN THIS PARTICULAR CASE.  IT IS BECAUSE I FIND MYSELF
REGRETFULLY IN DISAGREEMENT WITH MY BRETHREN REGARDING THE NATURE AND
SCOPE OF THE PROBLEM OF JUDICIAL REVIEW IN A CASE LIKE THIS THAT I
WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

IT IS, HOWEVER, PERTINENT TO ADD THAT THE COURT'S DECISION MAY SERVE
A USEFUL PURPOSE IF IT WILL LEAD THE INTERSTATE COMMERCE COMMISSION,
DESPITE ITS ENORMOUS VOLUME OF BUSINESS, TO A MORE DETAILED AND
ILLUMINATING FORMULATION OF THE REASONS FOR THE JUDGMENT THAT IT
REACHES EVEN IN THAT CLASS OF CASES WHERE CONGRESS HAS RELIED ON THE
COMMISSION'S DISCRETION IN ENFORCING THE MOST BROADLY EXPRESSED
CONGRESSIONAL POLICY.  SINCE THE ORDERS IN SUCH CASES ALSO FALL UNDER
JUDICIAL SCRUTINY, IT IS DESIRABLE TO INSIST UPON PRECISION IN THE
FINDINGS AND THE REASONS FOR THE COMMISSION'S ACTION. 
..END :


















BENANTI V. UNITED STATES 355 U.S. 96 


NO. 231.  ARGUED OCTOBER 29, 1957 - DECIDED DECEMBER 9, 1957 - 244 F.2D
389, REVERSED. 


EVIDENCE OBTAINED AS A RESULT OF WIRETAPPING A TELEPHONE BY STATE LAW
ENFORCEMENT OFFICERS PURSUANT TO A STATE-COURT WARRANT AUTHORIZED BY
STATE LAW, AND WITHOUT PARTICIPATION BY FEDERAL AUTHORITIES, IS NOT
ADMISSIBLE IN A CRIMINAL TRIAL IN A FEDERAL COURT, WHERE THE EXISTENCE
OF THE INTERCEPTED COMMUNICATION IS DISCLOSED TO THE JURY IN VIOLATION
OF SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT.  PP. 97-106. 

1.  EVIDENCE OBTAINED BY MEANS FORBIDDEN BY SEC. 605, WHETHER BY
STATE OR FEDERAL AGENTS, IS INADMISSIBLE IN A FEDERAL COURT.  PP. 99
103. 

(A)  NARDONE V. UNITED STATES, 302 U.S. 379, AND 308 U.S. 338,
FOLLOWED; SCHWARTZ V. TEXAS, 344 U.S. 199, DISTINGUISHED.  PP. 99-103. 

(B)  IN THIS CASE, SEC. 605 WAS VIOLATED, IF NOT EARLIER, AT LEAST
UPON DISCLOSURE TO THE JURY OF THE EXISTENCE OF THE INTERCEPTED
COMMUNICATION.  PP. 100-101. 

2.  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT, IN THIS
CASE, THE WIRETAP WAS PLACED BY STATE AGENTS ACTING IN ACCORDANCE WITH
STATE LAW.  PP. 103-106. 

(A) IN SETTING OUT THE PROHIBITION OF SEC. 605 IN PLAIN TERMS,
CONGRESS DID NOT INTEND TO ALLOW STATE LEGISLATION WHICH WOULD
CONTRADICT THAT SECTION AND THE PUBLIC POLICY UNDERLYING IT.  PP. 104
106. 

BENANTI V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY PETITIONER IS WHETHER EVIDENCE OBTAINED AS
THE RESULT OF WIRETAPPING BY STATE LAW-ENFORCEMENT OFFICERS, WITHOUT
PARTICIPATION BY FEDERAL AUTHORITIES, IS ADMISSIBLE IN A FEDERAL
COURT.  PETITIONER WAS CONVICTED OF THE ILLEGAL POSSESSION AND
TRANSPORTATION OF DISTILLED SPIRITS WITHOUT TAX STAMPS AFFIXED THERETO
IN VIOLATION OF 26 U.S.C. SECS. 5008(B)(1), 5642.  THE NEW YORK POLICE,
SUSPECTING THAT PETITIONER AND OTHERS WERE DEALING IN NARCOTICS IN
VIOLATION OF STATE LAW, OBTAINED A WARRANT IN ACCORDANCE WITH STATE LAW
(FN1) AUTHORIZING THEM TO TAP THE WIRES OF A BAR WHICH PETITIONER WAS
KNOWN TO FREQUENT.  ON MAY 10, 1956, THE POLICE OVERHEARD A
CONVERSATION BETWEEN PETITIONER AND ANOTHER IN WHICH IT WAS SAID THAT
"ELEVEN PIECES" WERE TO BE TRANSPORTED THAT NIGHT AT A CERTAIN TIME AND
TO A CERTAIN PLACE IN NEW YORK CITY.  ACTING ACCORDING TO THIS
INFORMATION, THE POLICE FOLLOWED AND STOPPED A CAR DRIVEN BY
PETITIONER'S BROTHER.  NO NARCOTICS WERE FOUND, BUT HIDDEN IN THE CAR
WERE ELEVEN FIVE-GALLON CANS OF ALCOHOL WITHOUT THE TAX STAMPS REQUIRED
BY FEDERAL LAW.  THE BROTHER AND THE ALCOHOL WERE TURNED OVER TO
FEDERAL AUTHORITIES AND THIS PROSECUTION FOLLOWED. 

AT THE TRIAL THE FIRST GOVERNMENT WITNESS, A STATE POLICE OFFICER,
TESTIFIED TO THE EVENTS LEADING UP TO THE DISCOVERY OF THE CANS OF
ALCOHOL IN AN AUTOMOBILE WHICH HAD BEEN DRIVEN BY THE PETITIONER AND
THEN TAKEN BY HIS BROTHER TO THE APPOINTED SPOT.  NO MENTION WAS MADE
OF THE WIRETAP ON DIRECT EXAMINATION.  HOWEVER, ON CROSS-EXAMINATION
THIS WITNESS ADMITTED THAT THE INFORMATION CAUSING THE POLICE TO FOLLOW
THE CAR AND INTERCEPT IT CAME FROM A WIRETAP.  (FN2)  ON REDIRECT
EXAMINATION THE PROSECUTOR SOUGHT TO PROVE THAT THE WIRETAP HAD BEEN
AUTHORIZED BY STATE LAW.  THE GOVERNMENT INTRODUCED A SECOND POLICE
OFFICIAL, WHO TESTIFIED SUBSTANTIALLY AS THE FIRST, ADMITTING ON DIRECT
EXAMINATION THAT A WIRETAP HAD EXISTED AND ON CROSS-EXAMINATION THAT
THE DISCOVERY OF THE ALCOHOL WAS OCCASIONED BY KNOWLEDGE OF THE
CONTENTS OF THE WIRETAPPED CONVERSATION.  THE WORDS OF THAT
CONVERSATION WERE NOT DISCLOSED TO THE JURY ALTHOUGH THEY WERE
DISCLOSED TO THE TRIAL JUDGE AND THE DEFENSE COUNSEL.  (FN3)  THE
RECORD IS SILENT AS TO WHETHER THE PROSECUTOR WAS TOLD THE WORDS OF THE
CONVERSATION.  HOWEVER, IN OUR VIEW IT IS UNIMPORTANT WHETHER HE HAD
THIS INFORMATION OR NOT. 

PETITIONER'S MOTION TO SUPPRESS THE EVIDENCE WAS DENIED AND HE WAS
CONVICTED.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED, 244
F.2D 389, HOLDING THAT WHILE THE ACTION OF THE STATE OFFICIALS VIOLATED
FROM THE VIOLATION WAS STILL ADMISSIBLE.  WE GRANTED CERTIORARI.  355
U.S. 801.  PETITIONER, RELYING ON THIS COURT'S SUPERVISORY POWERS OVER
THE FEDERAL COURT SYSTEM, CLAIMS THAT THE ADMISSION OF THE EVIDENCE WAS
BARRED BY THE FEDERAL CONSTITUTION AND SECTION 605.  WE DO NOT REACH
THE CONSTITUTIONAL QUESTIONS AS THIS CASE CAN BE DETERMINED UNDER THE
STATUTE. 


"  ...  NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT
ANY COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE, CONTENTS,
SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED
COMMUNICATION TO ANY PERSON  ...  ." 

   I. 

IN NARDONE V. UNITED STATES, 302 U.S. 379, AND 308 U.S. 338, THIS
COURT HELD THAT EVIDENCE OBTAINED FROM WIRETAPPING BY FEDERAL AGENTS
WAS INADMISSIBLE IN FEDERAL COURT.  IN SCHWARTZ V. TEXAS, 344 U.S. 199,
THE SAME TYPE OF EVIDENCE WAS HELD ADMISSIBLE IN A STATE COURT WHERE IT
HAD BEEN OBTAINED BY STATE AGENTS.  THE CASE BEFORE US, CONTAINING
ELEMENTS FROM THESE THREE CASES, FORCES A CHOICE BETWEEN THE DIFFERENT
RESULTS REACHED. 

THE NARDONE DECISIONS LAID DOWN IN UNDERLYING PREMISES UPON WHICH IS
BASED ALL SUBSEQUENT CONSIDERATION OF SECTION 605.  THE CRUX OF THOSE
DECISIONS IS THAT THE PLAIN WORDS OF THE STATUTE CREATED A PROHIBITION
AGAINST ANY PERSONS VIOLATING THE INTEGRITY OF A SYSTEM OF TELEPHONIC
COMMUNICATION AND THAT EVIDENCE OBTAINED IN VIOLATION OF THIS
PROHIBITION MAY NOT BE USED TO SECURE A FEDERAL CONVICTION.  NARDONE V.
UNITED STATES, 302 U.S. 379, 382.  MOREOVER, AS THE SECOND NARDONE
DECISION ASSERTS, DISTINCTIONS DESIGNED TO DEFEAT THE PLAIN MEANING OF
THE STATUTE WILL NOT BE COUNTENANCED.  308 U.S. 338, 340.  WE HOLD THAT
THE CORRECT APPLICATION OF THE ABOVE PRINCIPLE DICTATES THAT EVIDENCE
OBTAINED BY MEANS FORBIDDEN BY SECTION 605, WHETHER BY STATE OR FEDERAL
AGENTS, IS INADMISSIBLE IN FEDERAL COURT. 

IN THIS CASE THE STATUTE WAS VIOLATED IF NOT EARLIER AT LEAST UPON
THE DISCLOSURE TO THE JURY OF THE EXISTENCE OF THE INTERCEPTED
COMMUNICATION, (FN5) FOR SECTION 605 FORBIDS THE DIVULGENCE OF "THE
EXISTENCE, CONTENTS, SUBSTANCE, PURPORT, EFFECT, OR MEANING" OF THE
INTERCEPTED MESSAGE.  THE EFFECT OF THAT VIOLATION IN CONTRIBUTING TO
THE CONVICTION HERE IS MANIFEST.  THE JURY WERE FREE TO SPECULATE THAT
THE EXISTENCE OF THE COMMUNICATION, THE SOURCE OF THE GOVERNMENT'S
EVIDENCE, WAS FURTHER PROOF OF PETITIONER'S CRIMINAL ACTIVITIES.  (FN6)
THE PROSECUTOR CONTINUED TO USE EVIDENCE NOW LINKED TO A DISCLOSED
WIRETAP ALTHOUGH HE HAD BEEN MADE AWARE OF ITS EXISTENCE AND OF ITS
OBVIOUS SIGNIFICANCE TO HIS CASE.  (FN7) 

RESPONDENTS ARGUE THAT THE EVIDENCE OBTAINED FROM THE DISCLOSED
WIRETAP SHOULD HAVE BEEN ADMISSIBLE BY REFERRING TO SCHWARTZ V. TEXAS,
SUPRA, AND BY DRAWING A PARALLEL TO THE FOURTH AMENDMENT.  IT IS URGED
THAT AS LONG AS THE WIRETAPPING OCCURRED WITHOUT THE PARTICIPATION OR
EVEN KNOWLEDGE OF FEDERAL LAW-ENFORCEMENT OFFICERS, THE EVIDENCE SHOULD
BE ADMITTED IN FEDERAL COURT; THE FEDERAL GOVERNMENT, BEING WITHOUT
FAULT, SHOULD NOT BE HANDICAPPED.  HOWEVER, SCHWARTZ V. TEXAS DOES NOT
INDICATE APPROVAL OF SUCH A PROPOSITION.  BOTH A STATE COURT AND STATE
LAW-ENFORCEMENT OFFICERS WERE THERE INVOLVED.  THE RATIONALE OF THAT
CASE IS THAT DESPITE THE PLAIN PROHIBITION OF SECTION 605, DUE REGARD
TO FEDERAL-STATE RELATIONS PRECLUDED THE CONCLUSION THAT CONGRESS
INTENDED TO THWART A STATE RULE OF EVIDENCE IN THE ABSENCE OF A CLEAR
INDICATION TO THAT EFFECT.  IN THE INSTANT CASE WE ARE NOT DEALING WITH
A STATE RULE OF EVIDENCE.  ALTHOUGH STATE AGENTS COMMITTED THE WIRETAP,
WE ARE PRESENTED WITH A FEDERAL CONVICTION BROUGHT ABOUT IN PART BY A
VIOLATION OF FEDERAL LAW, (FN8) IN THIS CASE IN A FEDERAL COURT. 
(FN9) 

FURTHERMORE, CONFRONTED AS WE ARE BY THIS CLEAR STATUTE, AND RESTING
OUR DECISION ON ITS PROVISIONS, IT IS NEITHER NECESSARY NOR APPROPRIATE
TO DISCUSS BY ANALOGY DISTINCTIONS SUGGESTED TO BE APPLICABLE TO THE
FOURTH AMENDMENT.  (FN10)  SECTION 605 CONTAINS AN EXPRESS, ABSOLUTE
PROHIBITION AGAINST THE DIVULGENCE OF INTERCEPTED COMMUNICATIONS. 
NARDONE V. UNITED STATES, 302 U.S. 379, 382.  THIS CASE IS BUT ANOTHER
EXAMPLE OF THE USE OF WIRETAPPING THAT WAS SO CLEARLY CONDEMNED UNDER
OTHER CIRCUMSTANCES IN THE SECOND NARDONE DECISION:  (FN11) 

"TO FORBID THE DIRECT USE OF (THESE) METHODS  ...  BUT TO PUT NO CURB
ON THEIR FULL INDIRECT USE WOULD ONLY INVITE THE VERY METHODS DEEMED
'INCONSISTENT WITH ETHICAL STANDARDS AND DESTRUCTIVE OF PERSONAL
LIBERTY.'  WHAT WAS SAID IN A DIFFERENT CONTEXT IN SILVERTHORNE LUMBER
CO. V. UNITED STATES, 251 U.S. 385, 392, IS PERTINENT HERE:  'THE
ESSENCE OF A PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE IN A
CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE USED
BEFORE THE COURT, BUT THAT IT SHALL NOT BE USED AT ALL.'" 

THE ABOVE PRINCIPLE HAS FOR ITS PURPOSE ENHANCEMENT OF THE PROPER
ADMINISTRATION OF CRIMINAL JUSTICE.  TO IMPUTE TO THE STATUTE ANYTHING
LESS WOULD GIVE IT "A SELF-DEFEATING, IF NOT DISINGENUOUS PURPOSE." 
(FN12)  NARDONE V. UNITED STATES, 308 U.S. 338, 340-341. 

                                           II. 

AS AN ALTERNATIVE ARGUMENT TO SUPPORT THE JUDGMENT BELOW, RESPONDENT
URGES THAT THE INTERCEPTION AND DIVULGENCE IN THIS CASE WERE NO
VIOLATION OF SECTION 605 BECAUSE THE WIRETAP WAS PLACED BY STATE AGENTS
ACTING IN ACCORDANCE WITH THE LAW OF NEW YORK.  THE CONSTITUTION AND
STATUTES OF THE STATE OF NEW YORK (FN13) PROVIDE THAT AN EX PARTE ORDER
AUTHORIZING A WIRETAP MAY BE ISSUED BY JUDGES OF A CERTAIN RANK UPON
THE OATH OR AFFIRMATION OF CERTAIN OFFICIALS THAT THERE IS REASONABLE
GROUND TO BELIEVE EVIDENCE OF A CRIME MAY BE OBTAINED AND WHICH
IDENTIFIES THE TELEPHONE LINE AND THE PERSONS WHO ARE TO BE AFFECTED
THEREBY.  IT IS UNDISPUTED THAT AN ORDER PURSUANT TO THAT LAW WAS
ISSUED IN THIS CASE AND THAT IT WAS EXECUTED ACCORDING TO STATE LAW. 

RESPONDENT DOES NOT URGE THAT, CONSTITUTIONALLY SPEAKING, CONGRESS IS
WITHOUT POWER TO FORBID SUCH WIRETAPPING EVEN IN THE FACE OF A
CONFLICTING STATE LAW.  CF. WEISS V. UNITED STATES, 308 U.S. 321, 327. 
RATHER THE ARGUMENT IS THAT CONGRESS HAS NOT EXERCISED THIS POWER AND
THAT SECTION 605, BEING GENERAL IN ITS TERMS, SHOULD NOT BE DEEMED TO
OPERATE TO PREVENT A STATE FROM AUTHORIZING WIRETAPPING IN THE EXERCISE
OF ITS LEGITIMATE POLICE FUNCTIONS.  HOWEVER, WE READ THE FEDERAL
COMMUNICATIONS ACT, AND SECTION 605 IN PARTICULAR, TO THE CONTRARY. 

THE FEDERAL COMMUNICATIONS ACT IS A COMPREHENSIVE SCHEME FOR THE
REGULATION OF INTERSTATE COMMUNICATION.  (FN14)  IN ORDER TO SAFEGUARD
THOSE INTERESTS PROTECTED UNDER SECTION 605, THAT PORTION OF THE
STATUTE PERTINENT TO THIS CASE APPLIES BOTH TO INTRASTATE AND
INTERSTATE COMMUNICATIONS.  WEISS V. UNITED STATES, SUPRA.  THE NATURAL
RESULT OF RESPONDENT'S ARGUMENT IS THAT BOTH INTERSTATE AND INTRASTATE
COMMUNICATION WOULD BE REMOVED FROM THE STATUTE'S PROTECTION BECAUSE,
AS THIS COURT NOTED IN WEISS, (FN15) THE INTERCEPTER CANNOT DISCERN
BETWEEN THE TWO AND WILL LISTEN TO BOTH.  CONGRESS DID NOT INTEND TO
PLACE THE PROTECTIONS SO PLAINLY GUARANTEED IN SECTION 605 IN SUCH A
VULNERABLE POSITION.  RESPONDENT POINTS TO PORTIONS OF THE ACT WHICH
PLACE SOME LIMITED AUTHORITY IN THE STATES OVER THE FIELD OF INTERSTATE
COMMUNICATION.  THE CHARACTER OF THESE MATTERS, DEALING WITH ASPECTS OF
THE REGULATION OF UTILITY SERVICE TO THE PUBLIC, IS TECHNICAL IN NATURE
(FN16) IN CONTRAST TO THE BROADER POLICY CONSIDERATIONS MOTIVATING
AUTHORITY TO THE STATES UNDERSCORES THE CONCLUSION THAT HAD CONGRESS
INTENDED TO ALLOW THE STATES TO MAKE EXCEPTIONS TO SECTION 605, IT
WOULD HAVE SAID SO.  IN LIGHT OF THE ABOVE CONSIDERATIONS, AND KEEPING
IN MIND THIS COMPREHENSIVE SCHEME OF INTERSTATE REGULATION AND THE
PUBLIC POLICY UNDERLYING SECTION 605 AS PART OF THAT SCHEME, WE FIND
THAT CONGRESS, SETTING OUT A PROHIBITION IN PLAIN TERMS, DID NOT MEAN
TO ALLOW STATE LEGISLATION WHICH WOULD CONTRADICT THAT SECTION AND THAT
POLICY.  (FN18)  CF.  PENNSYLVANIA V. NELSON, 350 U.S. 497; HILL V.
FLORIDA, 325 U.S. 538; HINES V. DAVIDOWITZ, 312 U.S. 52.  (FN19) 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  N.Y. CONST., ART. I, SEC. 12; N.Y. CODE OF CRIMINAL PROCEDURE,
SEC. 813-A (1942). 

FN2  R. 7:  "CROSS EXAMINATION BY MR. TODARO (DEFENSE COUNSEL): 

"Q.  OFFICER, YOU WERE IN THE VICINITY OF THIS RENO BAR QUITE
FREQUENTLY? 

"A.  YES, SIR. 

"Q.  DID THE POLICE DEPARTMENT HAVE A TAP ON THE RENO BAR, IF YOU
KNOW? 

"A.  YES, THEY HAVE SEVERAL TAPS ON THE RENO BAR. 

"Q.  DID YOU OBTAIN ANY INFORMATION AS PART OF THIS INVESTIGATION
FROM THE WIRETAP CONVERSATION? 

"A.  DID I OBTAIN ANY INFORMATION IN REGARD  ...  . 

"Q.  YES, IN REFERENCE TO THE BENANTIS. 

"A.  BENANTI? 

"Q.  YES. 

"A.  YES. 

     *         *         *     *         * 

"Q.  YOU ALSO OBTAINED INFORMATION AS A RESULT OF THIS WIRETAP THAT
THIS CAR WAS GOING TO BE DRIVEN TO A CERTAIN LOCATION? 

"A.  YES. 

     *         *         *         *         * 

"Q.  BUT YOU HAD OBTAINED SOME INFORMATION THROUGH THE WIRETAP WHICH
GAVE YOU A LEAD TO THIS TRAP? 

"A.  PART OF THE INFORMATION." 

FN3  R. 52:  "(THE FOLLOWING TOOK PLACE IN THE ABSENCE OF THE JURY:) 

"THE COURT:  MR. TODARO, THE ASSISTANT DISTRICT ATTORNEY IS HERE WITH
THE ORDER OF THE (STATE) COURT (AUTHORIZING THE WIRETAP).  I JUST TELL
YOU, MR. TODARO, I HAVE LOOKED AT IT AND IT DOES PROVIDE FOR THE TAP OF
THESE PREMISES, SO THAT YOUR CONCESSION (THAT THE TAP WAS AUTHORIZED
UNDER STATE LAW), GENERALLY MADE, WAS ACTUALLY WELL BASED. 

"ALSO, FOR WHATEVER FACTUAL INTEREST IT MAY HAVE ON THIS MOTION, MR.
MURPHY OVERHEARD THE CONVERSATION THAT NIGHT, IF YOU WANT TO GET THE
FULL FACTS ON THAT. 

"THE REFERENCE ON THE WIRE WAS TO 'ELEVEN PIECES' WHICH THEY THOUGHT
MEANT NARCOTICS, AND THAT WAS WHY THEY INTERCEPTED THE CAR." 

FN4 48 STATE.  1103, 47 U.S.C. SEC. 605. 

FN5  BECAUSE BOTH AN INTERCEPTION AND A DIVULGENCE ARE PRESENT IN
THIS CASE WE NEED NOT DECIDE WHETHER BOTH ELEMENTS ARE NECESSARY FOR A
VIOLATION OF SEC. 605.  ALSO BECAUSE HERE THE DISCLOSURE WAS OF THE
EXISTENCE OF THE COMMUNICATION, IT IS NOT NECESSARY FOR US TO REACH THE
ISSUE WHETHER SEC. 605 IS VIOLATED BY AN INTERCEPTION OF THE
COMMUNICATION AND A DIVULGENCE OF ITS FRUITS WITHOUT DIVULGING THE
EXISTENCE, CONTENTS, ETC., OF THE COMMUNICATION.    FN6  THE OBVIOUS
PREJUDICE TO THE PETITIONER FROM THE DISCLOSURE OF THE WIRETAP IS SHOWN
BY EFFORTS OF THE PROSECUTION TO MITIGATE IT BY SHOWING THAT THE
WIRETAP HAD NOT BEEN INSTIGATED ON ACCOUNT OF THE CHARGE FOR WHICH
PETITIONER WAS BEING TRIED.  HOWEVER, DISCLOSURE OF THE EXISTENCE OF
THE COMMUNICATION WAS THE PREJUDICIAL ERROR THAT WAS NOT OVERCOME. 
FN7  THE HEART OF THE GOVERNMENT'S CASE WAS (1) THE TESTIMONY OF THE
TWO POLICEMEN, WHO WERE PRESENT AT THE SCENE OF THE WIRETAP AND AT
LEAST ONE OF WHOM ARRESTED PETITIONER'S BROTHER AND DISCOVERED THE
ALCOHOL, AND (2) THE EVIDENCE OF A GOVERNMENT CHEMIST AS TO HIS
ANALYSIS OF THE SEIZED ALCOHOL.  AS THE COURT OF APPEALS BELOW SAID:
"BUT IT IS EQUALLY CLEAR THAT BUT FOR THE WIRETAP THERE WOULD HAVE BEEN
NO BASIS FOR ANY PROSECUTION WHATEVER, AS THE APPREHENSION OF ANGELO
(PETITIONER'S BROTHER) AND SEIZURE OF THE 'ELEVEN PIECES' LED TO THE
DISCOVERY OF APPELLANT'S PARTICIPATION IN THE VIOLATIONS OF FEDERAL LAW
FOR WHICH HE HAS BEEN CONVICTED; AND THE SEQUENCE OF CAUSE AND EFFECT
IS CLEAR."  244 F.2D, AT 390. 

FN8  A COMPLEMENTARY DISTINCTION WAS MADE IN REA V. UNITED STATES,
350 U.S. 214.  THERE THIS COURT REVERSED THE DENIAL OF AN INJUNCTION
AGAINST A FEDERAL AGENT WHO HAD SEIZED EVIDENCE IN VIOLATION OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE AND, BEING UNABLE TO INTRODUCE THE
EVIDENCE IN FEDERAL COURT, WAS ABOUT TO DO SO IN A STATE PROSECUTION. 
IN ANSWER TO THE ARGUMENT THAT SUCH AN INJUNCTION WOULD INTERFERE WITH
STATE JUDICIAL PROCEDURE, THE DECISION STATES:  "THE COMMAND OF THE
FEDERAL RULES IS IN NO WAY AFFECTED BY ANYTHING THAT HAPPENS IN A STATE
COURT.  THEY ARE DESIGNED AS STANDARDS FOR FEDERAL AGENTS.  THE FACT
THAT THEIR VIOLATION MAY BE CONDONED BY STATE PRACTICE HAS NO RELEVANCY
TO OUR PROBLEM."  ID., AT 217. 

FN9  THE FIRST DIVULGENCE APPEARING ON THE RECORD OCCURRED IN COURT,
BUT WE DO NOT MEAN TO IMPLY THAT AN OUT-OF-COURT VIOLATION OF THE
STATUTE WOULD NOT ALSO LEAD TO THE INVALIDATION OF A SUBSEQUENT
CONVICTION. 

FN10  IT HAS REMAINED AN OPEN QUESTION IN THIS COURT WHETHER EVIDENCE
OBTAINED SOLELY BY STATE AGENTS IN AN ILLEGAL SEARCH MAY BE ADMISSIBLE
IN FEDERAL COURT DESPITE THE FOURTH AMENDMENT.  SEE LUSTIG V. UNITED
STATES, 338 U.S. 74, 78-79.  THE INSTANT DECISION IS NOT CONCERNED WITH
THE SCOPE OF THE FOURTH AMENDMENT. 

FN11  308 U.S., AT 340. 

FN12  GOLDSTEIN V. UNITED STATES, 316 U.S. 114, IS NOT TO THE
CONTRARY.  THE HOLDING OF THAT DECISION IS THAT ONE NOT A PARTY TO AN
INTERCEPTED CONVERSATION MAY NOT BAR THE TESTIMONY OF ONE WHO HAS BEEN
INDUCED TO TESTIFY BY EXPOSURE OF THE FACT THAT HIS OWN CONVERSATIONS
HAVE BEEN WIRETAPPED.   ID., AT 122.  THE BROAD LANGUAGE IN THE
DECISION THAT THE POLICY OF THE FOURTH AMENDMENT APPLIES TO SEC. 605 IS
PLACED IN THE CONTEXT OF A DISCUSSION OF THE RIGHT OF ONE NOT A PARTY
TO THE CONVERSATION TO COMPLAIN.  ID., AT 120, 121.  THIS RIGHT WAS
REJECTED ON THE GROUND THAT SINCE THE STATUTE ALLOWS THE "SENDER" OF A
MESSAGE TO CONSENT TO ITS DIVULGENCE, IT MEANT TO PROTECT ONLY HIM. 

FN13  N.Y. CONST., ART. I, SEC. 12; N.Y. CODE OF CRIMINAL PROCEDURE,
SEC. 813-A (1942). 

FN14  THE FEDERAL COMMUNICATIONS ACT WAS THE RESPONSE TO A
PRESIDENTIAL MESSAGE CALLING TO THE ATTENTION OF CONGRESS THE
DISJOINTED EXERCISE OF FEDERAL AUTHORITY OVER THE FORMS OF
COMMUNICATION.  THE PRIMARY PURPOSE OF THE ACT WAS TO CREATE A
COMMISSION "TO REGULATE ALL FORMS OF COMMUNICATION AND TO CONSIDER
NEEDED ADDITIONAL LEGISLATION."  H.R. REP. NO. 1850, 73D CONG., 2D
SESS. 3.  NOTE ALSO THE REMARKS OF SENATOR DILL, CHAIRMAN OF THE
COMMITTEE ON INTERSTATE COMMERCE, WHO INTRODUCED THE BILL IN THE
SENATE, THAT THE ACT WOULD CORRECT THE THERETOFORE CURSORY FEDERAL
REGULATION OF TELEPHONE AND TELEGRAPH COMPANIES.  78 CONG.  REC. 8822. 

FN15  308 U.S., AT 328. 

FN16  47 U.S.C. SEC. 220(H) ALLOWS THE FEDERAL COMMUNICATIONS
COMMISSION TO PLACE CARRIERS UNDER STATE AUTHORITY IN REGARD TO
ACCOUNTING SYSTEMS AND METHODS OF DEPRECIATION ACCOUNTING.  SEE H.R.
REP. NO. 1850, 73D CONG., 2D SESS. 7.  47 U.S.C. SEC. 221(B), AS
ORIGINALLY ENACTED, ENABLED STATE COMMISSIONS "TO REGULATE EXCHANGE
SERVICES IN METROPOLITAN AREAS OVERLAPPING STATE LINES."  S. REP. NO.
781, 73D CONG., 2D SESS. 5; H.R. REP. NO. 1850, 73D CONG., 2D SESS. 7. 
STATE AUTHORITY OVER INTRASTATE COMMUNICATION IS RESERVED BY 47 U.S.C.
(SUPP. II) SEC. 152(B), WHICH REMOVES THE JURISDICTION OF THE FEDERAL
COMMUNICATIONS COMMISSION FROM "CHARGES, CLASSIFICATIONS, PRACTICES,
SERVICES, FACILITIES, OR REGULATIONS FOR OR IN CONNECTION WITH
INTRASTATE COMMUNICATION SERVICE BY WIRE OR RADIO OF ANY CARRIER."  SEE
S. REP. NO. 781, 73D CONG., 2D SESS. 3. 

FN17  CF. NARDONE V. UNITED STATES, 302 U.S. 379; NARDONE V. UNITED
STATES, 308 U.S. 338; WEISS V. UNITED STATES, 308 U.S. 321. 

FN18  IN PASSING, IT SHOULD BE POINTED OUT THAT SEVERAL ATTORNEYS
GENERAL OF THE UNITED STATES HAVE URGED CONGRESS TO GRANT EXCEPTIONS TO
SEC. 605 TO FEDERAL AGENTS UNDER LIMITED CIRCUMSTANCES.  SEE, E.G.,
HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE
JUDICIARY ON H.R. 762, 867, 4513, 4728, 5096, 84TH CONG., 1ST SESS. 28;
ROGERS, THE CASE FOR WIRE TAPPING, 63 YALE L.J. 792 (1954).  BUT
CONGRESS HAS DECLINED TO DO SO.  IN VIEW OF THIS, IT WOULD SEEM
UNREASONABLE TO BELIEVE THAT CONGRESS IS WILLING TO ALLOW THIS SAME
SORT OF EXCEPTION TO STATE AGENTS WITH NO FURTHER LEGISLATION ON ITS
PART. 

FN19  SCHWARTZ V. TEXAS, SUPRA, IS NOT TO THE CONTRARY.  WHILE IT
REFUSED TO OVERTURN A STATE RULE OF EVIDENCE, THE COURT WAS SATISFIED
THAT THE ACTION OF THE STATE OFFICIALS NONETHELESS VIOLATED SEC. 605. 
344 U.S., AT 202. 
..END :












RATHBUN V. UNITED STATES 355 U.S. 107 


NO. 30.  ARGUED OCTOBER 29, 1957 - DECIDED DECEMBER 9, 1957 - 236 F.2D
514, AFFIRMED. 


CONTENTS OF A COMMUNICATION OVERHEARD BY POLICE OFFICERS ON A
REGULARLY USED TELEPHONE EXTENSION, WITH THE CONSENT OF THE PERSON WHO
IS BOTH THE SUBSCRIBER TO THE EXTENSION AND A PARTY TO THE
CONVERSATION, ARE ADMISSIBLE IN A CRIMINAL TRIAL IN A FEDERAL COURT;
BECAUSE SUCH USE OF A REGULARLY USED TELEPHONE EXTENSION DOES NOT
INVOLVE ANY "INTERCEPTION" OF A TELEPHONE MESSAGE, AS CONGRESS INTENDED
THAT WORD TO BE USED IN SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT. 
PP. 107-111. 

RATHBUN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE ISSUE OF WHETHER THE CONTENTS OF A
COMMUNICATION OVERHEARD ON A REGULARLY USED TELEPHONE EXTENSION WITH
THE CONSENT OF ONE PARTY TO THE CONVERSATION ARE ADMISSIBLE IN FEDERAL
COURT.  (FN1)  PETITIONER WAS CONVICTED OF VIOLATIONS OF 18 U.S.C. SEC.
875(B) AND (C) FOR TRANSMITTING AN INTERSTATE COMMUNICATION WHICH
THREATENED THE LIFE OF ONE SPARKS IN ORDER TO OBTAIN FROM HIM A STOCK
CERTIFICATE WHICH SPARKS HELD AS COLLATERAL FOR A LOAN.  ON MARCH 16,
1955, PETITIONER, WHO WAS IN NEW YORK, SPOKE BY TELEPHONE WITH SPARKS,
WHO WAS IN PUEBLO, COLORADO.  ANTICIPATING ANOTHER CALL FROM
PETITIONER, SPARKS REQUESTED THAT MEMBERS OF THE PUEBLO POLICE FORCE
OVERHEAR THE CONVERSATION.  WHEN PETITIONER PHONED SPARKS IN THE EARLY
MORNING OF MARCH 17, TWO POLICE OFFICERS AT SPARKS' DIRECTION LISTENED
TO THE CONVERSATION ON A TELEPHONE EXTENSION IN ANOTHER ROOM OF THE
SPARKS HOME.  THIS EXTENSION HAD NOT BEEN INSTALLED THERE JUST FOR THIS
PURPOSE BUT WAS A REGULAR CONNECTION, PREVIOUSLY PLACED AND NORMALLY
USED.  AT THE TRIAL THE POLICE OFFICERS TESTIFIED OVER TIMELY OBJECTION
THAT DURING THIS CONVERSATION PETITIONER HAD THREATENED SPARKS' LIFE
BECAUSE HE WOULD NOT SURRENDER THE CERTIFICATE.  PETITIONER WAS
CONVICTED AND THE COURT OF APPEALS AFFIRMED.  236 F.2D 514.  WE GRANTED
CERTIORARI.  352 U.S. 965. 

BENANTI V. UNITED STATES, ANTE, P. 96, DETERMINED THAT INFORMATION
OBTAINED AND DIVULGED BY STATE AGENTS IN VIOLATION OF SECTION 605 OF
THE FEDERAL COMMUNICATIONS ACT (FN2) IS INADMISSIBLE IN FEDERAL COURT. 
THE PERTINENT PORTION OF SECTION 605 STATES: 

"  ...  NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT
ANY COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE, CONTENTS,
SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED
COMMUNICATION TO ANY PERSON  ...  ." 

SINCE THERE WAS A DIVULGENCE OF THE CONTENTS OF A COMMUNICATION, THE
ONLY ISSUE ON THE FACTS BEFORE US IS WHETHER THERE HAS BEEN AN
UNAUTHORIZED INTERCEPTION WITHIN THE MEANING OF SECTION 605.  (FN3)
THE FEDERAL COURTS HAVE SPLIT IN THEIR DETERMINATION OF THIS QUESTION. 
SOME COURTS HAVE HELD THAT THE STATUTE PROSCRIBES THE USE OF AN
EXTENSION TELEPHONE TO ALLOW SOMEONE TO OVERHEAR A CONVERSATION WITHOUT
THE CONSENT OF BOTH PARTIES.  (FN4)  OTHERS HAVE CONCLUDED THAT THE
STATUTE IS INAPPLICABLE WHERE ONE PARTY HAS CONSENTED.  (FN5)  WE HOLD
THAT SECTION 605 WAS NOT VIOLATED IN THE CASE BEFORE US BECAUSE THERE
HAS BEEN NO "INTERCEPTION" AS CONGRESS INTENDED THAT THE WORD BE USED. 
EVERY STATUTE MUST BE INTERPRETED IN THE LIGHT OF REASON AND COMMON
UNDERSTANDING TO REACH THE RESULTS INTENDED BY THE LEGISLATURE.  CF.
HOLY TRINITY CHURCH V. UNITED STATES, 143 U.S. 457; AMERICAN SECURITY &
TRUST CO. V. COMMISSIONERS, 224 U.S. 491.  THAT PRINCIPLE WOULD BE
VIOLATED IF WE ATTRIBUTED TO CONGRESS ACCEPTANCE OF THE RESULTS THAT
WOULD OCCUR HERE FROM THE POSITION ARGUED BY PETITIONER. 

THE TELEPHONE EXTENSION IS A WIDELY USED INSTRUMENT OF HOME AND
OFFICE, (FN6) YET WITH NOTHING TO EVIDENCE CONGRESSIONAL INTENT,
PETITIONER ARGUES THAT CONGRESS MEANT TO PLACE A SEVERE RESTRICTION ON
ITS ORDINARY USE BY SUBSCRIBERS, DENYING THEM THE RIGHT TO ALLOW A
FAMILY MEMBER, AN EMPLOYEE, A TRUSTED FRIEND, OR EVEN THE POLICE TO
LISTEN TO A CONVERSATION TO WHICH A SUBSCRIBER IS A PARTY.  SECTION 605
POINTS TO THE OPPOSITE CONCLUSION.  IMMEDIATELY FOLLOWING THE PORTION
QUOTED ABOVE, THE STATUTE CONTINUES: 

"  ...  NO PERSON NOT BEING ENTITLED THERETO SHALL RECEIVE OR ASSIST
IN RECEIVING ANY INTERSTATE OR FOREIGN COMMUNICATION BY WIRE OR RADIO
AND USE THE SAME OR ANY INFORMATION THEREIN CONTAINED FOR HIS OWN
BENEFIT OR FOR THE BENEFIT OF ANOTHER NOT ENTITLED THERETO  ...  ." 

THE CLEAR INFERENCE IS THAT ONE ENTITLED TO RECEIVE THE COMMUNICATION
MAY USE IT FOR HIS OWN BENEFIT OR HAVE ANOTHER USE IT FOR HIM.  THE
COMMUNICATION ITSELF IS NOT PRIVILEGED, AND ONE PARTY MAY NOT FORCE THE
OTHER TO SECRECY MERELY BY USING A TELEPHONE.  IT HAS BEEN CONCEDED BY
THOSE WHO BELIEVE THE CONDUCT HERE VIOLATES SECTION 605 THAT EITHER
PARTY MAY RECORD THE CONVERSATION AND PUBLISH IT.  (FN7)  THE CONDUCT
OF THE PARTY WOULD DIFFER IN NO WAY IF INSTEAD OF REPEATING THE MESSAGE
HE HELD OUT HIS HANDSET SO THAT ANOTHER COULD HEAR OUT OF IT.  WE SEE
NO DISTINCTION BETWEEN THAT SORT OF ACTION AND PERMITTING AN OUTSIDER
TO USE AN EXTENSION TELEPHONE FOR THE SAME PURPOSE. 

THE ERROR IN ACCEPTING PETITIONER'S ARGUMENT IS BROUGHT INTO SHARPER
FOCUS BY THE FACT THAT SECTION 605 IS PENAL IN NATURE, THE FIRST
VIOLATION BEING PUNISHABLE BY A FINE OF NOT MORE THAN $10,000 OR BY
IMPRISONMENT FOR A TERM NOT EXCEEDING ONE YEAR, OR BOTH.  (FN8)  FOR
EXAMPLE, IT FOLLOWS FROM PETITIONER'S ARGUMENT THAT EVERY SECRETARY WHO
LISTENS TO A BUSINESS CONVERSATION AT HER EMPLOYER'S DIRECTION IN ORDER
TO RECORD IT WOULD BE MARKED AS A POTENTIAL FEDERAL CRIMINAL.  IT IS
UNREASONABLE TO BELIEVE THAT CONGRESS MEANT TO EXTEND CRIMINAL
LIABILITY TO CONDUCT WHICH IS WHOLLY INNOCENT AND ORDINARY. 

COMMON EXPERIENCE TELLS US THAT A CALL TO A PARTICULAR TELEPHONE
NUMBER MAY CAUSE THE BELL TO RING IN MORE THAN ONE ORDINARILY USED
INSTRUMENT.  EACH PARTY TO A TELEPHONE CONVERSATION TAKES THE RISK THAT
THE OTHER PARTY MAY HAVE AN EXTENSION TELEPHONE AND MAY ALLOW ANOTHER
TO OVERHEAR THE CONVERSATION.  WHEN SUCH TAKES PLACE THERE HAS BEEN NO
VIOLATION OF ANY PRIVACY OF WHICH THE PARTIES MAY COMPLAIN. 
CONSEQUENTLY, ONE ELEMENT OF SECTION 605, INTERCEPTION, HAS NOT
OCCURRED.  AFFIRMED. 

FN1  THE GRANT OF CERTIORARI WAS LIMITED TO THE FOLLOWING QUESTION,
AS PHRASED BY PETITIONER:  "IS THE LISTENING IN OF THIRD PARTIES ON AN
EXTENSION TELEPHONE IN AN ADJOINING ROOM, WITHOUT CONSENT OF THE
SENDER, AN INTERCEPTION OF A TELEPHONE MESSAGE, AND THE DIVULGENCE OF
THE CONTENTS OF SUCH CONVERSATION PROHIBITED BY STATUTE, TO WIT SEC.
605, TITLE 47, U.S.C.A."  IMPLICIT IN THIS PHRASING OF THE QUESTION IS
THE FACT THAT ONE PARTY TO THE CONVERSATION DID CONSENT. 

FN2  48 STAT. 1103, 47 U.S.C. SEC. 605. 

FN3  WE DO NOT DECIDE THE QUESTION OF WHETHER SEC. 605 IS VIOLATED
WHERE A MESSAGE IS INTERCEPTED BUT NOT DIVULGED SINCE THE POLICE
OFFICERS DID DIVULGE THE CONTENTS OF THE OVERHEARD CONVERSATION WHEN
THEY TESTIFIED IN COURT.  CF. BENANTI V. UNITED STATES, ANTE, P. 96. 

FN4  UNITED STATES V. POLAKOFF, 112 F.2D 888; JAMES V. UNITED STATES,
89 U.S. APP.  D.C. 201, 191 F.2D 472; UNITED STATES V. HILL, 149 F.
SUPP. 83; SEE REITMEISTER V. REITMEISTER, 162 F.2D 691. 

FN5  UNITED STATES V. WHITE, 228 F.2D 832; FLANDERS V. UNITED STATES,
222 F.2D 163; UNITED STATES V. SULLIVAN, 116 F. SUPP. 480, AFFIRMED, 95
U.S. APP. D.C. 78, 219 F.2D 760; UNITED STATES V. LEWIS, 87 F. SUPP.
970, REVERSED ON OTHER GROUNDS, BILLECI V. UNITED STATES, 87 U.S. APP.
D.C. 274, 184 F.2D 394; CF. RAYSON V. UNITED STATES, 238 F.2D 160;
UNITED STATES V. BOOKIE, 229 F.2D 130; UNITED STATES V. PIERCE, 124 F.
SUPP. 264, AFFIRMED, 224 F.2D 281. 

FN6  FOR EXAMPLE, IN 1934 THE BELL TELEPHONE SYSTEM, INCLUDING
AFFILIATES, HAD 1,315,000 EXTENSION TELEPHONES OUT OF A TOTAL OF
13,378,000.  IN 1956 THE SYSTEM HAD 8,465,000 EXTENSION TELEPHONES OUT
OF A TOTAL OF 50,990,000.  EXHIBIT 1364 OF THE FEDERAL COMMUNICATIONS
COMMISSION SPECIAL TELEPHONE INVESTIGATION; FEDERAL COMMUNICATIONS
COMMISSION, "STATISTICS OF THE COMMUNICATIONS INDUSTRY IN THE UNITED
STATES FOR THE YEAR ENDED DECEMBER 31, 1956." 

FN7  SEE UNITED STATES V. POLAKOFF, 112 F.2D 888, 889: 

"WE NEED NOT SAY THAT A MAN MAY NEVER MAKE A RECORD OF WHAT HE HEARS
ON THE TELEPHONE BY HAVING SOMEONE ELSE LISTEN AT AN EXTENSION, OR, AS
IN THE CASE AT BAR, EVEN BY ALLOWING HIM TO INTERPOSE A RECORDING
MACHINE.  THE RECEIVER MAY CERTAINLY HIMSELF BROADCAST THE MESSAGE AS
HE PLEASES, AND THE SENDER WILL OFTEN GIVE CONSENT, EXPRESS OR IMPLIED,
TO THE INTERPOSITION OF A LISTENER." 

NOTE ALSO THAT THE REGULATIONS OF THE FEDERAL COMMUNICATIONS
COMMISSION WHICH CONTROL THE RECORDING OF TELEPHONE CONVERSATIONS
PRESUPPOSE THAT EITHER PARTY MAY RECORD A CONVERSATION AND DECLARE THAT
TARIFF REGULATIONS OF TELEPHONE COMPANIES WHICH BAR THE USE OF
RECORDING DEVICES ARE UNJUST AND UNREASONABLE AND SO IN VIOLATION OF
SEC. 201 OF THE FEDERAL COMMUNICATIONS ACT.  IN THE MATTER OF USE OF
RECORDING DEVICES IN CONNECTION WITH TELEPHONE SERVICE, 11 F.C.C. 1033,
1053. 

FN8  48 STAT. 1100, 47 U.S.C. SEC. 501.  ADDITIONAL VIOLATIONS ARE
PUNISHABLE BY THE SAME FINE AND NOT MORE THAN TWO YEARS' IMPRISONMENT,
OR BOTH. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

ALTHOUGH THIS COURT HAD, IN OLMSTEAD V. UNITED STATES, 277 U.S. 438,
DECIDED THAT NEITHER THE FOURTH AMENDMENT NOR THE GENERAL JUDICIAL
PRINCIPLES GOVERNING CRIMINAL TRIALS IN UNITED STATES COURTS BARRED
EVIDENCE OBTAINED THROUGH INTERCEPTION OF TELEPHONE COMMUNICATIONS BY
LAW-ENFORCING OFFICERS WITHOUT THE CONSENT OF THE SENDER, THE CONGRESS
A FEW YEARS LATER PROVIDED THAT: 

"NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT ANY
COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE, CONTENTS,
SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED
COMMUNICATION TO ANY PERSON  ...  ."  SEC. 605, FEDERAL COMMUNICATIONS
ACT OF JUNE 19, 1934, 48 STAT. 1064, 1104, 47 U.S.C. SEC. 605. 

IF THE JUDICIAL ATTITUDE THAT LIES BEHIND THE PHRASE "STRICT
CONSTRUCTION OF A STATUTE," I.E., IN FAVOR OF AN ACCUSED, CAN HAVE AN
EMPHATIC ILLUSTRATION, IT IS FOUND IN THE TWO NARDONE CASES, IN WHICH
THE QUOTED PROVISION OF SEC. 605 WAS FIRST GIVEN EFFECT BY THIS COURT. 
WE THERE HELD THAT THE IMPLICATIONS OF THAT SECTION BAR EVEN THE MOST
RELEVANT AND PERSUASIVE EVIDENCE OBTAINED, WITHOUT A SENDER'S
AUTHORIZATION, THROUGH INTERCEPTION BY LAW OFFICERS, AND LIKEWISE BAR
INDEPENDENTLY SECURED EVIDENCE OBTAINED AS A RESULT OF LEADS AFFORDED
BY SUCH INTERCEPTION.  NARDONE V. UNITED STATES, 302 U.S. 379; 308 U.S.
338.  THE WHOLE POINT OF THE VIGOROUS DISSENT IN THE FIRST NARDONE CASE
WAS DIRECTED AGAINST LITERAL APPLICATION OF THE PHRASE "NO PERSON"
THEREBY "ENABLING THE MOST DEPRAVED CRIMINALS TO FURTHER THEIR CRIMINAL
PLANS OVER THE TELEPHONE, IN THE SECURE KNOWLEDGE THAT EVEN IF THESE
PLANS INVOLVE KIDNAPPING AND MURDER, THEIR TELEPHONE CONVERSATIONS CAN
NEVER BE INTERCEPTED BY OFFICERS OF THE LAW AND REVEALED IN COURT." 
MR. JUSTICE SUTHERLAND, DISSENTING IN NARDONE V. UNITED STATES, 302
U.S., AT 385.  THE COURT'S OPINION GAVE A SHORT AND DECISIVE ANSWER:
"WE NEVERTHELESS FACE THE FACT THAT THE PLAIN WORDS OF SEC. 605 FORBID
ANYONE, UNLESS AUTHORIZED BY THE SENDER, TO INTERCEPT A TELEPHONE
MESSAGE, AND DIRECT IN EQUALLY CLEAR LANGUAGE THAT 'NO PERSON' SHALL
DIVULGE OR PUBLISH THE MESSAGE OR ITS SUBSTANCE TO 'ANY PERSON.'"  302
U.S., AT 382. 

IN THIS CASE, PETITIONER'S CONVICTION WAS BASED ON THE TESTIMONY OF A
POLICE OFFICER WHO LISTENED IN ON A TELEPHONE COMMUNICATION MADE BY
PETITIONER, AND SUCH LISTENING-IN WAS NOT "AUTHORIZED BY THE SENDER,"
TO WIT, THE PETITIONER.  IT IS SUGGESTED THAT THE INTERCEPTION, FOR
SUCH IT WAS, IN THE CLEAR MEANING OF THE TERM FOR CARRYING OUT ITS
FUNCTION - AN INTRUSION BY WAY OF LISTENING TO THE LEGALLY INSULATED
TRANSMISSION OF THOUGHT BETWEEN A SPEAKER AND A HEARER - DOES NOT FALL
WITHIN THE PROHIBITION OF SEC. 605, BECAUSE IT WAS CARRIED OUT BY MEANS
OF "A REGULARLY USED TELEPHONE EXTENSION WITH THE CONSENT OF ONE
PARTY."  BUT, SURELY, THE AVAILABILITY OF A "REGULARLY USED TELEPHONE
EXTENSION" DOES NOT MAKE SEC. 605 INOPERATIVE.  THE FACT THAT THE COURT
RELIES ON "THE CONSENT OF ONE PARTY" EVIDENTLY IMPLIES THAT IT WOULD
NOT BE WITHOUT THE PURVIEW OF SEC. 605 FOR A POLICE OFFICER TO CONCEAL
HIMSELF IN A ROOM OF A HOUSE OR A SUITE OF OFFICES HAVING SEVERAL
"REGULARLY USED TELEPHONE EXTENSIONS" AND SURREPTITIOUSLY TO UTILIZE
SUCH AN EXTENSION TO OVERHEAR TELEPHONE CONVERSATIONS. 

IT IS SAID THAT THE OVERHEARING IN THIS CASE WAS "WITH THE CONSENT OF
ONE PARTY."  BUT THE STATUTE IS NOT SATISFIED WITH "THE CONSENT OF ONE
PARTY."  THE STATUTE SAYS "NO PERSON NOT BEING AUTHORIZED BY THE
SENDER."  SINCE THIS COURT, IN NARDONE, READ "NO PERSON" TO MEAN NO
PERSON, IT IS EVEN MORE INCUMBENT TO CONSTRUE "SENDER" TO MEAN SENDER,
AS WAS THE PETITIONER HERE, AND NOT TO READ "SENDER" TO MEAN ONE OF THE
PARTIES TO THE COMMUNICATION, WHETHER SENDER OR RECEIVER.  IT IS
FURTHER SUGGESTED THAT CONGRESS MUST HAVE BEEN AWARE OF THE WIDE USE OF
TELEPHONE EXTENSIONS AND THE PRACTICE OF LISTENING-IN ON EXTENSIONS. 
IN THE FIRST NARDONE CASE THIS COURT REJECTED THE ARGUMENT THAT
CONGRESS HAD KNOWLEDGE OF THE EMPLOYMENT OF FEDERAL AGENTS "TO TAP
WIRES IN AID OF DETECTION AND CONVICTION OF CRIMINALS."  302 U.S., AT
381.  BUT THE COURT REFUSED TO QUALIFY THE RIGOROUS POLICY OF CONGRESS
AS EXPRESSED BY ITS ENACTMENT.  AND TODAY, IN BENANTI V. UNITED STATES,
THE COURT REJECTS, AND IF I MAY SAY SO RIGHTLY, THE PLAUSIBLE
CONTENTION THAT THE WELL-KNOWN LEGISLATIVE AUTHORIZATION OF WIRE
TAPPING BY SOME OF THE STATES OUGHT TO BE DEEMED TO HAVE QUALIFIED THE
STRICT PURPOSE OF CONGRESS.    IT IS SUGGESTED, HOWEVER, THAT IT IS ONE
OF THE ACCEPTED MODES OF CARRYING ON BUSINESS IN OUR TIME TO HAVE
SECRETARIES LISTEN IN ON CONVERSATIONS BY THEIR PRINCIPALS.  A
SECRETARY MAY FAIRLY BE CALLED THE EMPLOYER'S ALTER EGO.  AND SO, A
SECRETARY IS FAIRLY TO BE DEEMED AS MUCH OF AN AUTOMATIC INSTRUMENT IN
THE CONTEXT OF OUR PROBLEM AS A TAPE RECORDER.  SURELY A POLICE OFFICER
CALLED IN TO FACILITATE THE DETECTION OF CRIME IS NOT SUCH AN ALTER
EGO.  HIS PARTICIPATION IN TELEPHONE COMMUNICATIONS WHEN NOT AUTHORIZED
BY THE SENDER OCCUPIES PRECISELY THE SAME POSITION THAT IT OCCUPIED IN
THE OLMSTEAD CASE WHEN THIS COURT SANCTIONED THE PRACTICE, AND IN THE
NARDONE CASES WHERE THIS COURT RIGOROUSLY ENFORCED THE PROHIBITION BY
CONGRESS OF WHAT THERETOFORE WAS A LAWFUL PRACTICE. 

SHARING THE VIEWS EXPRESSED BY JUDGE LEARNED HAND IN UNITED STATES V.
POLAKOFF, 112 F.2D 888, AND REITMEISTER V. REITMEISTER, 162 F.2D 691, I
WOULD REVERSE THE JUDGMENT. 
..END :













ROWOLDT V. PERFETTO 355 U.S. 115 


NO. 5.  ARGUED NOVEMBER 13-14, 1956 - RESTORED TO THE CALENDAR FOR
REARGUMENT JUNE 24, 1957 - REARGUED OCTOBER 14, 1957 - DECIDED DECEMBER
9, 1957 - 228 F.2D 109, REVERSED. 


IN THIS CASE, THE ONLY EVIDENTIARY SUPPORT FOR THE ORDER FOR
PETITIONER'S DEPORTATION UNDER SEC. 22 OF THE INTERNAL SECURITY ACT OF
1950, AS AMENDED, WAS HIS OWN TESTIMONY BEFORE AN IMMIGRATION INSPECTOR
IN 1947, THAT HE JOINED THE COMMUNIST PARTY IN 1935, PAID DUES,
ATTENDED MEETINGS, WORKED IN A COMMUNIST BOOKSTORE AND TERMINATED HIS
MEMBERSHIP AFTER A YEAR.  HELD: 

1.  FROM HIS TESTIMONY, THE DOMINATING IMPULSE OF PETITIONER'S
"AFFILIATION" WITH THE PARTY MAY WELL HAVE BEEN WHOLLY DEVOID OF ANY
"POLITICAL" IMPLICATIONS.  PP. 116-121. 

2.  THE RECORD IS TOO INSUBSTANTIAL TO ESTABLISH THAT PETITIONER'S
MEMBERSHIP WAS THE KIND OF MEANINGFUL ASSOCIATION REQUIRED BY SEC. 22,
AS AMENDED BY THE ACT OF MARCH 28, 1951, TO SUPPORT AN ORDER OF
DEPORTATION.  PP. 116-121. 

ROWOLDT V. PERFETTO, ACTING OFFICER IN CHARGE, IMMIGRATION AND
NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS AN ALIEN WHO HAS BEEN ORDERED DEPORTED BY VIRTUE OF
SEC. 22 OF THE INTERNAL SECURITY ACT OF 1950, 64 STAT. 987, 1006, (FN1)
FOR PAST MEMBERSHIP IN THE COMMUNIST PARTY.  HE ATTACKS THE JUDGMENT
BELOW ON THE GROUND - THE ONLY CLAIM WE NEED TO CONSIDER - THAT HE WAS
NOT A "MEMBER" OF THE COMMUNIST PARTY WITHIN THE SCOPE OF THAT

PETITIONER IS AN ALIEN WHO ENTERED THE UNITED STATES IN 1914 AND,
EXCEPT FOR A SHORT INTERVAL IN CANADA, HAS RESIDED HERE CONTINUOUSLY. 
THE FINDING OF "MEMBERSHIP" BY THE HEARING OFFICER RESTED ON
PETITIONER'S OWN TESTIMONY.  HE STATED THAT HE JOINED THE COMMUNIST
PARTY IN "THE SPRING OR SUMMER OF 1935," PAID DUES, ATTENDED MEETINGS,
AND REMAINED A MEMBER "UNTIL I GOT ARRESTED (IN DEPORTATION
PROCEEDINGS) AND THAT WAS AT THE END OF 1935.  WHEN I WAS ARRESTED, I
FINISHED THE COMMUNIST PARTY MEMBERSHIP  ...  ."  AT A LATER POINT IN
HIS TESTIMONY, PETITIONER STATED THAT HE WAS PROBABLY A MEMBER FOR
APPROXIMATELY ONE YEAR. 

HE THEN EXPLAINED HIS REASONS FOR JOINING THE COMMUNIST PARTY: 

"THE PURPOSE WAS PROBABLY THIS - IT SEEMED TO ME THAT IT CAME HAND IN
HAND - THE COMMUNIST PARTY AND THE FIGHT FOR BREAD.  IT SEEMED TO ME
LIKE THIS - LET'S PUT IT THIS WAY - THAT THE COMMUNIST PARTY AND THE
WORKERS' ALLIANCE HAD ONE AIM - TO GET SOMETHING TO EAT FOR THE
PEOPLE.  I DIDN'T KNOW IT WAS AGAINST THE LAW FOR ALIENS TO JOIN THE
COMMUNIST PARTY AND THE WORKERS' ALLIANCE  ...  ." 

IN RESPONSE TO A QUESTION WHETHER HIS JOINING THE COMMUNIST PARTY WAS
"MOTIVATED BY DISSATISFACTION IN LIVING UNDER A DEMOCRACY," THE
FOLLOWING COLLOQUY TOOK PLACE: 

"A.  NO, NOT BY THAT.  JUST A MATTER OF HAVING NO JOBS AT THAT TIME. 
EVERYBODY AROUND ME HAD THE IDEA THAT WE HAD TO FIGHT FOR SOMETHING TO
EAT AND CLOTHES AND SHELTER.  WE WERE NOT THINKING THEN - ANYWAYS THE
FELLOWS AROUND ME, OF OVERTHROWING ANYTHING.  WE WANTED SOMETHING TO
EAT AND SOMETHING TO CRAWL INTO. 

"Q.  YOU SAY 'FIGHT FOR SOMETHING TO EAT AND CRAWL INTO.'  WHAT DO
YOU MEAN BY THAT TERM? 

"A.  WE HAD TO GO AND ASK THOSE WHO HAD IT - THAT WAS THE COURTHOUSE
AT THAT TIME.  WE PETITIONED CITY, STATE AND NATIONAL GOVERNMENT.  WE
DID AND WE SUCCEEDED.  WE FINALLY GOT UNEMPLOYMENT LAWS AND A CERTAIN
BUDGET.  EVEN AT THE FEW COMMUNIST MEETINGS I ATTENDED, NOTHING WAS
EVER SAID ABOUT OVERTHROWING ANYTHING.  ALL THEY TALKED ABOUT WAS
FIGHTING FOR THE DAILY NEEDS.  THAT IS WHY WE NEVER THOUGHT MUCH OF
JOINING THOSE PARTIES IN THOSE DAYS." 

THE OTHER ACTIVITY BEARING ON PETITIONER'S MEMBERSHIP IN THE
COMMUNIST PARTY WAS DISCUSSED IN THE FOLLOWING COLLOQUY: 

"Q.  WERE YOU AN ACTIVE WORKER IN THE COMMUNIST PARTY? 

"A.  THE ONLY ACTIVE WORK I DID WAS RUNNING THE BOOKSTORE FOR A
WHILE. 

     *         *         *         *         * 

"Q.  WHAT SORT OF BOOKSTORE WAS IT? 

"A.  OH, ALL KINDS OF LITERATURE - ALL KINDS OF WRITERS IN THE WHOLE
WORLD - STRACHEY, MARX, LENIN'S WRITING AND OTHERS.  SOCIALISM AND ALL
THAT STUFF. 

"Q.  DID YOU OWN THE BOOKSTORE? 

"A.  NO. I DIDN'T GET A PENNY THERE. 

"Q.  WHAT WAS THE ARRANGEMENT THERE? 

"A.  I WAS KIND OF A SALESMAN IN THERE, BUT THE COMMUNIST PARTY RAN
IT. 

"Q.  YOU SECURED THIS EMPLOYMENT THROUGH YOUR MEMBERSHIP IN THE
COMMUNIST PARTY? 

"A.  YES. 

"Q.  WAS THIS STORE AN OFFICIAL OUTLET FOR COMMUNIST LITERATURE? 

"A.  YES." 

PETITIONER TESTIFIED THAT HE NEVER ADVOCATED CHANGE OF GOVERNMENT BY
FORCE OR VIOLENCE AND HE ALSO GAVE HIS UNILLUMINATING UNDERSTANDING OF,
AND BELIEFS ABOUT, THE PRINCIPLES OF COMMUNISM.  HIS ACCOUNT OF THE
CIRCUMSTANCES AND MOTIVES THAT LED HIM TO JOIN THE COMMUNIST PARTY
STOOD UNCHALLENGED AND WAS EVIDENTLY ACCEPTED AT FACE VALUE. 

THIS TESTIMONY WAS ALL GIVEN DURING AN EXAMINATION OF PETITIONER BY
THE IMMIGRATION AND NATURALIZATION SERVICE IN 1947.  AT THE HEARING
BELOW, IN 1951, PETITIONER REFUSED TO ANSWER WHETHER HE HAD EVER BEEN A
MEMBER OF THE COMMUNIST PARTY ON THE GROUND THAT THE ANSWERS MIGHT
INCRIMINATE HIM.  THE HEARING OFFICER FOUND, FROM THE EVIDENCE IN THE
RECORD, THAT PETITIONER "WAS A MEMBER OF THE COMMUNIST PARTY OF THE
UNITED STATES IN 1935."  ON APPEAL, TO BOTH THE ASSISTANT COMMISSIONER,
ADJUDICATIONS DIVISION OF THE IMMIGRATION AND NATURALIZATION SERVICE,
AND SUBSEQUENTLY THE BOARD OF IMMIGRATION APPEALS, THIS FINDING WAS
HELD SUPPORTED BY THE RECORD.  PETITIONER THEN SOUGHT A WRIT OF HABEAS
CORPUS FROM THE DISTRICT COURT FOR THE DISTRICT OF MINNESOTA.  BOTH THE
DISTRICT COURT AND, ON APPEAL, THE COURT OF APPEALS FOR THE EIGHTH
CIRCUIT HELD THAT THE EVIDENCE PRODUCED AT THE HEARING WAS SUFFICIENT
TO SUSTAIN THE FINDING THAT PETITIONER WAS A "MEMBER" OF THE COMMUNIST
PARTY.  228 F.2D 109.  AS THE CASE INVOLVES AN APPLICATION OF GALVAN V.
PRESS, 347 U.S. 522, WE GRANTED CERTIORARI.  350 U.S. 993. 

THE AUTHORITY FOR THE ORDER DEPORTING PETITIONER DERIVES FROM THE
INTERNAL SECURITY ACT OF 1950, AS AMENDED BY THE ACT OF MARCH 28, 1951,
65 STAT. 28.  AS INDICATED, ITS EVIDENTIARY SUPPORT RESTS ENTIRELY ON
PETITIONER'S TESTIMONY BEFORE AN IMMIGRATION INSPECTOR IN 1947.  THE
TRANSCRIPT OF THAT HEARING WAS THE FOUNDATION OF THE ADMINISTRATIVE
PROCEEDINGS THAT RESULTED IN THE ORDER NOW UNDER REVIEW.  THE ADEQUACY
OF THAT TESTIMONY TO SUSTAIN THE ORDER MUST BE JUDGED BY THE INTERNAL
SECURITY ACT OF 1950, WHICH WAS AMENDED BY SEC. 1 OF THE ACT OF MARCH
28, 1951, 65 STAT. 28, SET FORTH IN THE MARGIN.  (FN2) 

AS POINTED OUT IN GALVAN V. PRESS, SUPRA, AT 527, THE LEGISLATIVE
HISTORY OF THIS AMENDATORY STATUTE SHOWS THAT THE THREE SPECIFIED
QUALIFICATIONS ARE NOT TO BE APPLIED AS NARROW EXCEPTIONS BUT ARE TO BE
CONSIDERED AS ILLUSTRATIVE OF THE SPIRIT IN WHICH THE RIGOROUS
PROVISIONS REGARDING DEPORTABILITY OF SEC. 22(2) ARE TO BE CONSTRUED. 
THERE MUST BE A SUBSTANTIAL BASIS FOR FINDING THAT AN ALIEN COMMITTED
HIMSELF TO THE COMMUNIST PARTY IN CONSCIOUSNESS THAT HE WAS "JOINING AN
ORGANIZATION KNOWN AS THE COMMUNIST PARTY WHICH OPERATES AS A DISTINCT
AND ACTIVE POLITICAL ORGANIZATION  ...  ."  347 U.S., AT 528. 

BEARING IN MIND THE SOLIDITY OF PROOF THAT IS REQUIRED FOR A JUDGMENT
ENTAILING THE CONSEQUENCES OF DEPORTATION, PARTICULARLY IN THE CASE OF
AN OLD MAN WHO HAS LIVED IN THIS COUNTRY FOR FORTY YEARS, CF. NG FUNG
HO V. WHITE, 259 U.S. 276, 284, WE CANNOT SAY THAT THE UNCHALLENGED
ACCOUNT GIVEN BY PETITIONER OF HIS RELATIONS TO THE COMMUNIST PARTY
ESTABLISHES THE KIND OF MEANINGFUL ASSOCIATION REQUIRED BY THE
ALLEVIATING AMENDMENT OF 1951 AS EXPOUNDED BY ITS SPONSOR, SENATOR
MCCARRAN, AND HIS LEGISLATIVE COLLABORATOR, SENATOR FERGUSON.  (SEE 97
CONG. REC. 2368 AND 2387.)  ALL THAT THE IMMIGRATION AUTHORITIES WENT
ON IS WHAT THE PETITIONER HIMSELF SAID, FOR HIS TRUTHFULNESS WAS NOT
CALLED INTO QUESTION.  FROM HIS OWN TESTIMONY IN 1947, WHICH IS ALL
THERE IS, THE DOMINATING IMPULSE TO HIS "AFFILIATION" WITH THE
COMMUNIST PARTY MAY WELL HAVE BEEN WHOLLY DEVOID OF ANY "POLITICAL"
IMPLICATIONS.  TO BE SURE, HE WAS A "SALESMAN" IN A COMMUNIST BOOK
STORE, BUT HE "DIDN'T GET A PENNY THERE."  PRESUMABLY HE HAD TO LIVE ON
SOMETHING AND FURTHER INQUIRY MIGHT HAVE ELICITED THAT HE WAS GETTING
THE NECESSITIES OF LIFE FOR HIS WORK IN THE BOOK STORE.  NOR IS THERE A
HINT IN THE RECORD THAT THIS WAS NOT A BONA FIDE BOOK SHOP. 

ACCORDINGLY, WE ARE OF THE OPINION THAT THE RECORD BEFORE US IS ALL
TOO INSUBSTANTIAL TO SUPPORT THE ORDER OF DEPORTATION.  THE DIFFERENCES
ON THE FACTS BETWEEN GALVAN V. PRESS, SUPRA, AND THIS CASE ARE TOO
OBVIOUS TO BE DETAILED.  JUDGMENT REVERSED. 

FN1  THAT SECTION AMENDED THE ACT OF OCTOBER 16, 1918, 40 STAT. 1012,
AS AMENDED, TO PROVIDE: 

"SEC. 1  THAT ANY ALIEN WHO IS A MEMBER OF ANY ONE OF THE FOLLOWING
CLASSES SHALL BE EXCLUDED FROM ADMISSION INTO THE UNITED STATES: 

  *         *         *         *         * 

"(2)  ALIENS WHO, AT ANY TIME, SHALL BE OR SHALL HAVE BEEN MEMBERS OF
ANY OF THE FOLLOWING CLASSES: 

     *         *         *    *         * 

"(C)  ALIENS WHO ARE MEMBERS OF OR AFFILIATED WITH (1) THE COMMUNIST
PARTY OF THE UNITED STATES ...  . 

    *         *         *         *         * 

"SEC. 4.  (A) ANY ALIEN WHO WAS AT THE TIME OF ENTERING THE UNITED
STATES, OR HAS BEEN AT ANY TIME THEREAFTER,  ...  A MEMBER OF ANY ONE
OF THE CLASSES OF ALIENS ENUMERATED IN SECTION 1(2) OF THIS ACT, SHALL,
UPON THE WARRANT OF THE ATTORNEY GENERAL, BE TAKEN INTO CUSTODY AND
DEPORTED IN THE MANNER PROVIDED IN THE IMMIGRATION ACT OF FEBRUARY 5,
1917.  THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO THE
CLASSES OF ALIENS MENTIONED IN THIS ACT, IRRESPECTIVE OF THE TIME OF
THEIR ENTRY INTO THE UNITED STATES." 

THE SUBSTANCE OF THE RELEVANT PORTION OF THIS PROVISION WAS
INCORPORATED IN THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT.
163, 205, 8 U.S.C. SEC. 1251(A)(6)(C). 

FN2  "BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE ATTORNEY
GENERAL IS HEREBY AUTHORIZED AND DIRECTED TO PROVIDE BY REGULATIONS
THAT THE TERMS 'MEMBERS OF' AND 'AFFILIATED WITH' WHERE USED IN THE ACT
OF OCTOBER 16, 1918, AS AMENDED, SHALL INCLUDE ONLY MEMBERSHIP OR
AFFILIATION WHICH IS OR WAS VOLUNTARY, AND SHALL NOT INCLUDE MEMBERSHIP
OR AFFILIATION WHICH IS OR WAS SOLELY (A) WHEN UNDER SIXTEEN YEARS OF
AGE, (B) BY OPERATION OF LAW, OR (C) FOR PURPOSES OF OBTAINING
EMPLOYMENT, FOOD RATIONS, OR OTHER ESSENTIALS OF LIVING, AND WHERE
NECESSARY FOR SUCH PURPOSES."  SEE 16 FED. REG. 2907.  THESE THREE
EXCLUSIONS FROM THE SUBSTANTIVE PROVISION WERE, SO FAR AS DEPORTATIONS
ARE CONCERNED, REPEALED BY THE IMMIGRATION AND NATIONALITY ACT OF 1952,
66 STAT. 163, 280; HOWEVER, AS THE TEXT OF THIS OPINION MAKES CLEAR, WE
ARE NOT DECIDING THIS CASE ON THE BASIS OF (C), SUPRA. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BURTON, MR. JUSTICE CLARK AND
MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

I REGRET MY INABILITY TO JOIN THE COURT'S OPINION, FOR ITS EFFORT TO
FIND A WAY OUT FROM THE RIGORS OF A SEVERE STATUTE HAS ALLURING
APPEAL.  THE DIFFICULTY IS THAT IN ORDER TO REACH ITS RESULT THE COURT
HAS HAD TO TAKE IMPERMISSIBLE LIBERTIES WITH THE STATUTE AND THE RECORD
UPON WHICH THIS CASE IS BASED. 

PROCEEDINGS WERE BROUGHT, PROVIDES FOR THE DEPORTATION OF ALIENS WHO AT
THE TIME OF ENTRY INTO THE UNITED STATES, OR THEREAFTER, WERE "MEMBERS
OF OR AFFILIATED WITH  ...  THE COMMUNIST PARTY OF THE UNITED STATES
... ."  (FN1)  IN THIS CASE THERE IS NO DISPUTE THAT THE PETITIONER WAS
A DUES-PAYING MEMBER OF THE COMMUNIST PARTY FOR ABOUT A YEAR AFTER HE
ENTERED THE UNITED STATES.  THE COURT, HOWEVER, FINDS THE RECORD
INSUFFICIENT TO ESTABLISH THAT PETITIONER'S MEMBERSHIP WAS "THE KIND OF
MEANINGFUL ASSOCIATION REQUIRED BY THE ALLEVIATING AMENDMENT OF 1951,"
AND SUGGESTS THAT "THE DOMINATING IMPULSE TO HIS 'AFFILIATION' WITH THE
COMMUNIST PARTY MAY WELL HAVE BEEN WHOLLY DEVOID OF ANY 'POLITICAL'
IMPLICATIONS."  THIS HOLDING IS DERIVED FROM THE ACT OF MARCH 28, 1951,
WHICH AMENDED THE INTERNAL SECURITY ACT BY EXEMPTING FROM THE BROAD
SWEEP OF THE MEMBERSHIP PROVISION THOSE PERSONS WHO JOINED THE PARTY
"(A) WHEN UNDER SIXTEEN YEARS OF AGE, (B) BY OPERATION OF LAW, OR (C)
FOR PURPOSES OF OBTAINING EMPLOYMENT, FOOD RATIONS, OR OTHER ESSENTIALS
OF LIVING, AND WHERE NECESSARY FOR SUCH PURPOSES."  (FN2)  THE COURT
DOES NOT RELY HERE UPON ANY OF THESE EXEMPTIONS AS SUCH, BUT RESTS ITS
DECISION ON ITS FINDING IN GALVAN V. PRESS, 347 U.S. 522, 527, THAT THE
LEGISLATIVE DISCUSSION OF THESE EXEMPTIONS INDICATES THAT THE
MEMBERSHIP PROVISION OF THE 1950 ACT SHOULD BE READ BENIGNLY. 

THE COURT'S HOLDING AS TO THE INSUFFICIENCY OF THIS RECORD MAY BE
INTERPRETED IN ONE OF TWO WAYS, EITHER (A) THAT PETITIONER WAS NOT
SHOWN TO HAVE JOINED THE COMMUNIST PARTY CONSCIOUS OF ITS CHARACTER AS
A POLITICAL ORGANIZATION, OR (B) THAT IF HE DID SO JOIN, HIS MEMBERSHIP
WAS NONETHELESS EXCUSABLE UNDER THE 1950 ACT BECAUSE IT WAS
PREDOMINANTLY MOTIVATED BY ECONOMIC NECESSITY. 

UNDER EITHER VIEW OF THE COURT'S OPINION I THINK THAT THE SETTING
ASIDE OF THIS DEPORTATION ORDER CANNOT BE RECONCILED WITH THE HOLDING
IN GALVAN V. PRESS, SUPRA.  THERE THE COURT, IN REJECTING THE
CONTENTION THAT THE STATUTE SHOULD BE INTERPRETED AS NOT REACHING
PERSONS WHO JOINED OR REMAINED MEMBERS OF THE COMMUNIST PARTY WITHOUT
KNOWLEDGE OF ITS TENETS OF FORCE AND VIOLENCE, (FN3) SAID, P. 528:  "IT
IS ENOUGH THAT THE ALIEN JOINED THE PARTY, AWARE THAT HE WAS JOINING AN
ORGANIZATION KNOWN AS THE COMMUNIST PARTY WHICH OPERATES AS A DISTINCT
AND ACTIVE POLITICAL ORGANIZATION, AND THAT HE DID SO OF HIS OWN FREE
WILL."  I NEED NOT RETRACE THE REASONING WHICH INESCAPABLY LED THE
COURT TO THAT DECISION, (FN4) SAVE TO NOTE ONE POINT NOT ALLUDED TO IN
THE GALVAN OPINION, NAMELY, THAT THE AMELIORATING AMENDMENT OF THE 1951
ACT, ON WHOSE "SPIRIT" THE COURT HERE RELIES, WAS MOTIVATED SOLELY BY
THE PROBLEMS OF ALIENS WHO WERE BEING EXCLUDED FROM ENTRY INTO THE
UNITED STATES BECAUSE THEY HAD JOINED TOTALITARIAN ORGANIZATIONS IN
FOREIGN COUNTRIES.  (FN5)    UNDER THE FIRST POSSIBLE VIEW OF THE
COURT'S OPINION IT IS PLAIN THAT THE PETITIONER IS DEPORTABLE, FOR IN
MY JUDGMENT THE RECORD LEAVES NO ROOM FOR THE CONCLUSION THAT HE WAS
UNAWARE THAT THE COMMUNIST PARTY WAS "A DISTINCT AND ACTIVE POLITICAL
ORGANIZATION."  THE PETITIONER HAS FREELY ADMITTED THAT HE WAS A MEMBER
OF THE PARTY FOR ABOUT A YEAR; THAT HE PAID PARTY DUES; THAT HE
ATTENDED PARTY MEETINGS; AND THAT HE WORKED, WITHOUT PAY, IN THE PARTY
BOOKSTORE, WHICH HE RECOGNIZED AS "AN OFFICIAL OUTLET FOR COMMUNIST
LITERATURE."  BEYOND THIS, PETITIONER'S TESTIMONY BETRAYED
CONSIDERABLE, ALBEIT RUDIMENTARY, KNOWLEDGE OF COMMUNIST HISTORY AND
PHILOSOPHY.  TO BE SURE, HE DISCLAIMED BELIEF IN THE FORCIBLE OVERTHROW
OF GOVERNMENT, BUT THAT, AS GALVAN HOLDS, IS IMMATERIAL UNDER THIS
STATUTE. 

PERHAPS IT SHOULD BE ADDED THAT I DO NOT UNDERSTAND THE COURT TO
SUGGEST THAT, ALTHOUGH PETITIONER JOINED THE COMMUNIST PARTY AWARE THAT
IT WAS A POLITICAL ORGANIZATION, HIS ACTIVITIES IN THE PARTY WERE TOO
SLIGHT TO CONSTITUTE HIM A "MEMBER" WITHIN THE MEANING OF THE 1950
ACT.  THE COURT'S REAFFIRMATION OF THE GALVAN DEFINITION OF MEMBERSHIP
WOULD SEEM TO PRECLUDE SUCH AN INTERPRETATION OF THE OPINION. 
MOREOVER, THAT INTERPRETATION WOULD DO VIOLENCE TO THE SWEEPING AND
UNEQUIVOCAL LANGUAGE OF THE ACT ITSELF. 

THE COURT SAYS THAT THE "DIFFERENCES ON THE FACTS BETWEEN GALVAN V.
PRESS  ...  AND THIS CASE ARE TOO OBVIOUS TO BE DETAILED."  BUT, IN
RESPECT TO THE CRUCIAL QUESTION WHETHER CONSCIOUS MEMBERSHIP IN THE
COMMUNIST PARTY AS A POLITICAL ORGANIZATION WAS SUFFICIENTLY SHOWN, I
SUBMIT THAT THIS RECORD IS AT LEAST AS STRONG AS THAT IN GALVAN.  A
"DETAILING" OF THE RECORD BEFORE US WILL DEMONSTRATE THIS, AND I HAVE
THEREFORE LIBERALLY QUOTED FROM IT IN THE APPENDIX TO THIS OPINION,
POST, P. 127. 

THE SECOND POSSIBLE GROUND OF THE COURT'S DECISION IS EQUALLY
FORECLOSED BY GALVAN.  FOR IF THE RECORD SHOWS, AS I BELIEVE IT PLAINLY
DOES, THAT THE PETITIONER JOINED THE COMMUNIST PARTY OF THE UNITED
STATES OF HIS OWN FREE WILL, AND KNOWING IT TO BE "A DISTINCT AND
ACTIVE POLITICAL ORGANIZATION," THE 1950 ACT MAKES HIS ECONOMIC MOTIVES
FOR JOINING JUST AS IRRELEVANT AS THE ABSENCE OF PROOF THAT HE DID NOT
BELIEVE IN THE VIOLENT OVERTHROW OF GOVERNMENT. 

THE COURT'S ACTION IN THIS CASE CALLS TO MIND WHAT MR. JUSTICE
CARDOZO SAID IN ANDERSON V. WILSON, 289 U.S. 20, 27:  "WE DO NOT PAUSE
TO CONSIDER WHETHER A STATUTE DIFFERENTLY CONCEIVED AND FRAMED WOULD
YIELD RESULTS MORE CONSONANT WITH FAIRNESS AND REASON.  WE TAKE THE
STATUTE AS WE FIND IT."  AGAIN, WITH SPECIFIC REFERENCE TO THE STATUTE
HERE INVOLVED, THIS COURT SAID IN GALVAN, P. 528:  "A FAIR READING OF
THE LEGISLATION REQUIRES THAT THIS SCOPE (SEE ANTE, P. 122) BE GIVEN TO
WHAT CONGRESS ENACTED IN 1950, HOWEVER SEVERE THE CONSEQUENCES AND
WHATEVER VIEW ONE MAY HAVE OF THE WISDOM OF THE MEANS WHICH CONGRESS
EMPLOYED TO MEET ITS DESIRED END."  I FEAR THAT THE COURT HAS DEPARTED
FROM THOSE WISE PRECEPTS IN THIS INSTANCE. 

MY VIEW OF THIS CASE WOULD REQUIRE US TO DEAL WITH PETITIONER'S
CONTENTION THAT THE STATUTE, AS APPLIED TO HIM, IS UNCONSTITUTIONAL. 
SINCE THE COURT DOES NOT REACH THAT QUESTION, NO EXTENDED DISCUSSION OF
IT SEEMS APPROPRIATE IN A DISSENTING OPINION.  IT IS ENOUGH TO SAY THAT
I REGARD PETITIONER'S CONSTITUTIONAL ARGUMENT FORECLOSED BY GALVAN V.
PRESS, SUPRA, HARISIADES V. SHAUGHNESSY, 342 U.S. 580, AND BY THE
CONSIDERATIONS AND LONG LINE OF AUTHORITIES TO WHICH THOSE CASES
REFER.  WHATEVER MAY BE THE SCOPE OF THE LIMITATIONS OF THE FIFTH
AMENDMENT UPON THE DEPORTATION POWER (SEE GALVAN, AT PP. 530-531) - A
QUESTION AS TO WHICH I RESERVE THE RIGHT TO SPEAK WHEN OCCASION ARISES
I THINK THAT THERE IS NO CONSTITUTIONAL BAR TO THE STATUTE AS APPLIED
IN THIS CASE. 

FOR THE FOREGOING REASONS I WOULD AFFIRM THE JUDGMENT BELOW. 

FN1  64 STAT. 987, 1006, 1008. 

FN2  65 STAT. 28. 

FN3  "IT MUST BE CONCLUDED, THEREFORE, THAT SUPPORT, OR EVEN
DEMONSTRATED KNOWLEDGE, OF THE COMMUNIST PARTY'S ADVOCACY OF VIOLENCE
WAS NOT INTENDED TO BE A PREREQUISITE TO DEPORTATION."  347 U.S., AT
528. 

FN4  THE RESULT REACHED IN GALVAN WAS THOROUGHLY CONSISTENT BOTH WITH
THE JUDICIAL AND ADMINISTRATIVE DECISIONS INTERPRETING THE PREDECESSORS
OF THE 1950 ACT, AND WITH THE PURPOSE OF THAT ACT TO "STRENGTHEN" THE
PROVISIONS OF THE LAW RELATING "TO THE EXCLUSION AND DEPORTATION  ...
OF SUBVERSIVE ALIENS."  SEE H.R. REP. NO. 3112, 81ST CONG., 2D SESS.,
P. 54.  COMPARE THE EXHAUSTIVE TREATMENT IN LATVA V. NICOLLS, 106 F.
SUPP. 658, WHERE JUDGE WYZANSKI REACHED THE SAME CONCLUSION AS TO THE
MEANING OF THE 1950 ACT. 

FN5  THIS CONCLUSION IS COMPELLED BY THE LEGISLATIVE HISTORY.  THE
HOUSE OF REPRESENTATIVES REPORT ON THE BILL EMBODYING THE AMENDMENT
STATED: 

"THE ATTENTION OF THE COMMITTEES ON THE JUDICIARY OF BOTH HOUSES HAS
BEEN DIRECTED TO THE INCREASING NUMBER OF CASES IN WHICH NONIMMIGRANT
AND IMMIGRANT VISAS HAVE BEEN WITHHELD OR ADMISSION INTO THIS COUNTRY
DENIED TO ALIENS ON THE BASIS OF REGULATIONS ISSUED PURSUANT TO THE ACT
OF OCTOBER 16, 1918, AS AMENDED.  THE MAJORITY OF THE CASES BROUGHT TO
THE ATTENTION OF THE COMMITTESS INVOLVE SPOUSES OF SERVICEMEN, CLOSE
RELATIVES OF AMERICAN CITIZENS, PERMANENT RESIDENTS PREVIOUSLY ADMITTED
INTO THE UNITED STATES AND RETURNING FROM ABROAD TO THEIR
UNRELINQUISHED DOMICILES WITH APPROPRIATE DOCUMENTATION, SUCH AS
REENTRY PERMITS, ETC. 

"THE REASON MOST FREQUENTLY GIVEN FOR THE DENIAL OF VISAS OR THE
DENIAL OF ADMISSION APPEARS TO BE THE APPLICANT'S PAST MEMBERSHIP OF,
OR AFFILIATION WITH, CERTAIN TOTALITARIAN YOUTH, NATIONAL LABOR, OR
PROFESSIONAL STUDENT, OR SIMILAR ORGANIZATIONS, OR THE ALIEN'S SERVICE
IN THE GERMAN OR ITALIAN ARMIES, OR HIS INVOLUNTARY MEMBERSHIP IN
TOTALITARIAN PARTIES OR THEIR AFFILIATES AND AUXILIARIES, INCLUDING
THOSE CASES WHERE IT WAS SHOWN THAT SUCH MEMBERSHIP OR AFFILIATION
OCCURRED BY OPERATION OF LAW OR EDICT, OR FOR PURPOSES OF OBTAINING OR
PRESERVING EMPLOYMENT, FOOD RATIONS, OR OTHER ESSENTIALS OF LIVING. 

     *         *         *         *         * 

"THE BILL MAKES CLEAR THE INTENT OF CONGRESS THAT ALIENS WHO ARE, OR
WERE, VOLUNTARY MEMBERS OF ...  TOTALITARIAN PARTIES OR ORGANIZATIONS
ARE TO BE EXCLUDED, BUT ALIENS WHO WERE INVOLUNTARY MEMBERS  ...  ARE
NOT TO BE CONSIDERED IPSO FACTO AS MEMBERS OF, OR AFFILIATED WITH, THE
... ORGANIZATIONS WITHIN THE MEANING OF THE ACT OF OCTOBER 16, 1918, AS
AMENDED."  H.R. REP. NO. 118, 82D CONG., 1ST SESS., PP. 1-2. 

THE DEBATES ON THE FLOOR OF BOTH HOUSES OF CONGRESS PROVIDE
ADDITIONAL EVIDENCE ON THIS SCORE.  IN THE SENATE, WHERE THE MAJOR
DISCUSSION TOOK PLACE, EVERY SPECIFIC REFERENCE TO THE SCOPE OF THE
PROPOSED AMENDMENT DISCLOSES THAT ITS PURPOSE WAS TO ASSIST INDIVIDUALS
WHO WERE BEING DENIED ADMISSION INTO THE UNITED STATES BECAUSE OF THEIR
PRIOR MEMBERSHIP IN TOTALITARIAN ORGANIZATIONS IN THEIR HOMELAND.  FOR
EXAMPLE, SENATOR SMITH INQUIRED AT ONE POINT:  "WOULD THE PENDING BILL
EXCLUDE, FOR INSTANCE, A UKRAINIAN WHO LIVED IN THE SOVIET UNION AND
WHO WAS FORCED TO BELONG TO A KULAK FARM COOPERATIVE IN ORDER TO OBTAIN
WORK?  WOULD SUCH A MAN BE EXCLUDED?"  97 CONG. REC. 2369.  AND SENATOR
MCCARRAN, THE CHIEF AUTHOR OF THE AMENDMENT, DESCRIBED ITS THREE
SUBSECTIONS IN REVEALING DETAIL.  WITH RESPECT TO EACH HE EMPHASIZED
THAT MANY "SPOUSES OF MEMBERS OF THE UNITED STATES ARMED FORCES" WERE
INCLUDED.  THE FIRST CLASS, HE SAID, CONSISTED OF PERSONS "WHO DURING
INFANCY WERE MEMBERS OF THE HITLER YOUTH, FASCIST YOUTH, AND SIMILAR
ORGANIZATIONS WHERE THE CHILD'S EDUCATION AND WELFARE WERE MADE
DEPENDENT UPON MEMBERSHIP  ...  ."  THE SECOND CLASS EMBRACED "ALIENS
WHO UNWITTINGLY, AND WITHOUT THEIR KNOWLEDGE OR CONSENT, WERE IMPRESSED
INTO THE VARIOUS LABOR FRONTS AND PROFESSIONAL UNIONS AND
ORGANIZATIONS; ALIENS WHO SERVED IN THE GERMAN AND ITALIAN ARMIES; AND
ALIENS WHO  ...  BY LAW OR DECREE BECAME MEMBERS OF OR AFFILIATED WITH
SUBSIDIARY TOTALITARIAN ORGANIZATIONS."  AND THE THIRD CLASS, AS
DESCRIBED BY SENATOR MCCARRAN, CONSISTED OF "ALIENS WHO WERE FORCED TO
BECOME MEMBERS OF TOTALITARIAN ORGANIZATIONS IN ORDER TO OBTAIN FOOD
RATION CARDS, HOUSING, EMPLOYMENT, AND OTHER ESSENTIALS OF LIVING."  97
CONG. REC. 2370-2371. 

THE INFERENCE THAT CONGRESS INTENDED TO AID ONLY PERSONS BEING DENIED
ADMISSION TO THE UNITED STATES RATHER THAN PERSONS SUBJECT TO
DEPORTATION FOR MEMBERSHIP WHICH TOOK PLACE IN THIS COUNTRY IS
SUBSTANTIALLY REINFORCED BY THE FACT THAT WHEN THE IMMIGRATION AND
NATIONALITY ACT OF 1952 REPEALED THE AMELIORATING AMENDMENT, 66 STAT.
163, 280, ITS SUBSTANCE WAS RE-ENACTED AS FAR AS EXCLUSIONS WERE
CONCERNED, 66 STAT. 186, BUT NOT WITH RESPECT TO DEPORTATION. 

 APPENDIX TO OPINION OF MR. JUSTICE

         HARLAN, DISSENTING. 

EXCERPTS FROM THE RECORD. 

AFTER BEING WARNED OF HIS RIGHTS, PETITIONER WENT ON TO SAY: 

"I TOLD YOU JUST NOW.  I DON'T WANT TO GIVE TESTIMONY WHATSOEVER ON
THAT COMMUNIST STUFF AGAIN.  THAT IS FINISHED FOR ME AS FAR AS I AM
CONCERNED.  I AM TELLING YOU THAT I HAVE BEEN WORKING HERE 32 YEARS -
SINCE 1914, AND YOU CAN ASK ME WHAT KIND OF WORK YOU ARE DOING, HOW
MUCH WAGES YOU ARE GETTING, DOES YOUR BOSS LIKE YOU, BUT I DON'T WANT
TO BE ASKED ANYTHING ELSE ABOUT POLITICS BECAUSE I AM NOT INTERESTED. 
I AM TOO OLD TO BE INTERESTED.  I AM NOT INTERESTED WHETHER THE
REPUBLICANS GET IN OFFICE, OR THE DEMOCRATS, OR THE COMMUNISTS, OR THE
SOCIALISTS.  I DO NOT WANT ANYTHING ELSE TO BE ASKED BECAUSE I DON'T
WANT TO BE IN THIS COUNTRY.  I AM JUST IN THIS COUNTRY FOR THE PEOPLE'S
BENEFIT.  I AM WORKING AND PAYING TAXES ALL THE TIME FOR THEM.  WHY
SHOULD I GO THROUGH THIS AND GET TRAPPED THROUGH YOUR QUESTIONING?  I
DO NOT WANT TO BE ASKED ANYTHING ABOUT POLITICS.  IT IS 10 YEARS AGO
NOW.  I DON'T CARE WHAT THEY HAVE IN THEIR MINDS.  I DON'T WANT TO
ANSWER ANY TRAPPING QUESTIONS.  IF THEY DON'T WANT ME IN THIS COUNTRY,
THEY CAN TAKE ME AND SHIP ME ANY TIME." 

THEREAFTER THE FOLLOWING OCCURRED, OMITTING CERTAIN PORTIONS OF THE
RECORD OF NO SIGNIFICANCE HERE AND THE TESTIMONY ALREADY QUOTED BY THE
COURT THAT RELATED TO PETITIONER'S DISCLAIMER OF BELIEF IN THE FORCIBLE
OVERTHROW OF GOVERNMENT: 

"Q.  ARE YOU A MEMBER OF ANY ORGANIZATIONS OR SOCIETIES OF ANY KIND
AT THE PRESENT TIME? 

"A.  YES, I BELONG TO THE A.F.L. LOCAL NO. 665, MISCELLANEOUS HOTEL &
RESTAURANT WORKERS. 

"Q.  TO WHAT ORGANIZATIONS HAVE YOU BELONGED IN THE PAST? 

"A.  IN THE PAST, THE WORKERS' ALLIANCE, THE COMMUNIST PARTY. 

"Q.  WHEN DID YOU JOIN THE WORKERS' ALLIANCE? 

"A.  IN THE SPRING OR SUMMER OF 1935, I JOINED BOTH THE WORKERS'
ALLIANCE AND THE COMMUNIST PARTY. 

"Q.  WHERE DID YOU JOIN THESE ORGANIZATIONS? 

"A.  IN MINNEAPOLIS. 

"Q.  DID YOU HOLD ANY OFFICE IN EITHER OF THESE ORGANIZATIONS? 

"A.  NOT IN THE COMMUNIST PARTY BUT IN THE WORKERS' ALLIANCE, I WAS
ON THE EXECUTIVE BOARD, AND ONCE IN A WHILE I WAS SECRETARY FOR SOME
LOCAL. 

"Q.  WHAT - THE PURPOSE OF YOUR JOINING THE COMMUNIST PARTY AT THAT
TIME? 

"A.  WE HAD NO BOOKS THEN, JUST PAID DUES, AND SOMEBODY COLLECTED. 

"Q.  DID YOU CARRY A PARTY DUES BOOK AT THAT TIME? 

"A.  NO, BUT IN THE WORKERS' ALLIANCE WE HAD DUES BOOKS. 

"Q.  DID YOU CARRY A COMMUNIST PARTY CARD AT THAT TIME? 

"A.  I DON'T THINK WE HAD CARDS AT ALL. 

"Q.  FOR HOW LONG WERE YOU A MEMBER OF THE COMMUNIST PARTY? 

"A.  FROM THEN ON UNTIL I GOT ARRESTED AND THAT WAS AT THE END OF
1935.  WHEN I WAS ARRESTED, I FINISHED THE COMMUNIST PARTY MEMBERSHIP,
BUT I STAYED IN THE WORKERS' ALLIANCE. 

     *         *         *         * * 

"Q.  WHAT WERE YOUR POLITICAL BELIEFS AT THE TIME YOU JOINED THE
COMMUNIST PARTY? 

"A.  MY POLITICAL BELIEFS WERE ALWAYS SOMEWHAT FOR THE BENEFIT OF
MOST OF THE PEOPLE - ALWAYS FOR THE BENEFIT TO HELP MOST OF THE
PEOPLE. 

"Q.  APPARENTLY YOU WERE A MEMBER OF THE COMMUNIST PARTY FOR
APPROXIMATELY ONE YEAR.  IS THAT CORRECT? 

"A.  YES, PROBABLY SOMETHING LIKE THAT. 

     *         *         *         *         * 

"Q.  WHAT IS YOUR OPINION OF A REVOLUTION, SUCH AS OCCURRED IN RUSSIA
WHEN THE COMMUNISTS OBTAINED POWER? 

"A.  WHAT IS MY OPINION OF THE RUSSIAN REVOLUTION - THAT IS ABOUT IT.
AS MUCH AS I KNOW ABOUT IT, THE RUSSIAN REVOLUTION, IN MY OPINION, IS
THIS.  IT SEEMED THAT AT THE END OF THE WAR OF 1914, THE RUSSIAN MIDDLE
CLASS ESPECIALLY AND THE RUSSIAN SOLDIERS WERE SICK AND TIRED OF BEING
DOUBLE-CROSSED AND BETRAYED BY THEIR GENERALS AND WHAT NOT (THEY WENT
IN WITH THE GERMANS).  RUSSIAN SOLDIERS SPILLED THEIR BLOOD RUNNING
AGAINST THE GERMANS WITHOUT AMMUNITION, AND THERE WAS CHAOS IN THE
COUNTRY.  I SAID MIDDLE-CLASS - THAT THEY ORGANIZED AND SUCCEEDED IN
OVERTHROWING THAT PARTICULAR LEADERSHIP WHICH WAS HEADED BY THE CZAR. 
BUT THIS IS MY OPINION.  THIS WAS UNDER THE LEADERSHIP OF KERENSKY. 
SEEMINGLY, LENIN AND HIS FOLLOWERS WHICH REPRESENTED MORE THE LOWER
PEASANT AND FACTORY WORKERS, WERE NOT SATISFIED WITH THIS SET-UP, AND
KEPT ON WORKING FOR ANOTHER REVOLUTION WHICH FINALLY OVERTHREW THE
WHOLE UPPER CLASS IN THE FALL OF 1918, AND SO DIVORCED THEMSELVES FOR
THE FIRST TIME IN WORLD'S HISTORY, ECONOMICALLY AND POLITICALLY, FROM
THE REST OF THE WORLD.  THAT IS THE WAY I SEE IT.  THAT IS MY OPINION
ON THAT. 

     *         * *         *         * 

"Q.  DO YOU FEEL THAT YOUR BELIEFS IN GOVERNMENT HAVE CHANGED DURING
THE PAST TEN YEARS, THAT IS, SINCE YOU TERMINATED MEMBERSHIP IN THE
COMMUNIST PARTY? 

"A. YES, IT HAS CHANGED TO THAT EXTENT - THAT I BEGAN THINKING FOR
MYSELF INSTEAD OF FOLLOWING SOMEBODY ELSE TELLING ME THINGS.  I FOUND
THAT NOTHING CAN BE BROKEN OVER A KNEE, AND THAT ANY GOVERNMENT THAT
EXISTS TODAY HAS A RIGHT TO EXIST AS IT IS - BY THE POWER OF THE
MAJORITY OF A NATION'S PEOPLE.  NOBODY IN THE WORLD CAN SAY THERE ARE
NO CHANGES.  WE MUST ALWAYS CONSIDER CHANGES.  THEY CAN BE MADE WHEN
THE PEOPLE SEE THAT IT IS THE RIGHT TIME FOR IT, AND AT THAT TIME THEY
WILL HAVE THEIR REPRESENTATIVES WHICH WILL TAKE CARE OF IT.  I AM
ABSOLUTELY AGAINST SUDDEN DICTATORSHIP AND OVERTHROW OF GOVERNMENT. 
 *         *         *         *         * 

"Q.  WHAT IS YOUR OPINION AS TO WHETHER COMMUNISM WAS THE CAUSE OR
OUTGROWTH OF THE RUSSIAN REVOLUTION? 

"A.  COMMUNISM DID NOT START THE REVOLUTION.  THE MIDDLE-CLASS
STARTED THE REVOLUTION.  LENIN GOT HOLD OF IT.  COMMUNISM WAS THE
RESULT OF THE REVOLUTION. 

"Q.  WERE YOU AN ORGANIZER FOR THE COMMUNIST PARTY? 

"A.  NO. 

"Q.  WHAT IS YOUR PERSONAL BELIEF AS TO THE PRINCIPLES OF COMMUNISM? 

"A.  WHAT IS COMMUNISM?  THAT IS A GOOD QUESTION.  MY BELIEF IS A
DIFFERENT THING THAN COMMUNISM IS.  ACCORDING TO MARX AND LENIN AND AS
I HAVE SEEN THE COMMUNISTS WORKING, SINCE I KNEW OF THEM, THEY ARE
AIMING, MORE OR LESS, WITH FOREVER METHODS TO SET UP AN ECONOMIC SYSTEM
TO GET THE PEOPLE OUT OF A MONOPOLY CONTROL ON TO THEIR OWN ECONOMIC
FEET.  THAT IS THE WAY I SEE THEM WORKING NOW." 
..END :






















YOUNGDAHL V. RAINFAIR, INC. 355 U.S. 131 


NO. 11.  ARGUED OCTOBER 15, 1957 - DECIDED DECEMBER 9, 1957 - 226 ARK.
80, 288 S.W.2D 589, AFFIRMED IN PART, REVERSED IN PART; JUDGMENT
VACATED AND CAUSE REMANDED. 


RESPONDENT, A MANUFACTURER ENGAGED IN INTERSTATE COMMERCE AND WHOSE
EMPLOYEES WERE ENTITLED TO THE PROTECTION OF THE NATIONAL LABOR
RELATIONS ACT, OPERATED A BRANCH PLANT IN AN ESSENTIALLY RURAL
COMMUNITY OF ABOUT 4,000 INHABITANTS.  THE PLANT HAD ABOUT 100
EMPLOYEES, NONE OF WHOM WERE MEMBERS OF A LABOR UNION BUT MANY OF WHOM
HAD SIGNED APPLICATIONS TO JOIN A UNION.  APPARENTLY IN AN EFFORT TO
COMPEL RESPONDENT TO RECOGNIZE THE UNION AS THE BARGAINING AGENT OF THE
EMPLOYEES, SOME OF THE EMPLOYEES STRUCK AND PICKETED THE PLANT.  THE
PICKETING WAS ACCOMPANIED BY MASSED NAME-CALLING, THREATS, AND OTHER
CONDUCT CALCULATED TO INTIMIDATE THE OFFICERS, AGENTS AND NONSTRIKING
EMPLOYEES OF THE PLANT.  A STATE COURT ENJOINED NOT ONLY THE
THREATENING, INTIMIDATING OR COERCING OF EMPLOYEES OF THE PLANT BUT
ALSO ALL "PICKETING OR PATROLLING" OF THE PLANT PREMISES.  HELD: 

1. THE EVIDENCE SUPPORTS THE CONCLUSION OF THE TRIAL COURT, AFFIRMED
BY THE STATE SUPREME COURT, THAT THE CONDUCT AND MASSED NAME-CALLING BY
PETITIONERS WERE CALCULATED TO PROVOKE VIOLENCE AND WERE LIKELY TO DO
SO UNLESS PROMPTLY RESTRAINED; AND SUCH CONDUCT AND ABUSIVE LANGUAGE IN
SUCH CIRCUMSTANCES CAN BE ENJOINED.  PP. 138-139. 

2.  HOWEVER, THE TRIAL COURT UNLAWFULLY ENTERED THE PRE-EMPTED DOMAIN
OF THE NATIONAL LABOR RELATIONS BOARD INSOFAR AS IT ENJOINED PEACEFUL
PICKETING.  P. 139. 

3.  INSOFAR AS THE INJUNCTION PROHIBITS PETITIONERS AND OTHERS
COOPERATING WITH THEM FROM THREATENING VIOLENCE, OR PROVOKING VIOLENCE
ON THE PART OF ANY OF THE OFFICERS, AGENTS OR EMPLOYEES OF RESPONDENT,
AND PROHIBITS THEM FROM OBSTRUCTING OR ATTEMPTING TO OBSTRUCT THE FREE
USE OF THE STREETS ADJACENT TO RESPONDENT'S PLACE OF BUSINESS, AND THE
FREE INGRESS AND EGRESS TO AND FROM THE PROPERTY, IT IS AFFIRMED.  P.
139. 

4.  TO THE EXTENT THAT THE INJUNCTION PROHIBITS ALL OTHER PICKETING
AND PATROLLING OF RESPONDENT'S PREMISES AND IN PARTICULAR PROHIBITS
PEACEFUL PICKETING, IT IS SET ASIDE.  PP. 139-140. 

YOUNGDAHL ET AL. V. RAINFAIR, INC. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE ISSUES HERE ARE WHETHER, UNDER THE CIRCUMSTANCES OF THIS CASE, A
STATE COURT MAY ENJOIN STRIKERS AND UNION REPRESENTATIVES FROM (1)
"THREATENING, INTIMIDATING OR COERCING ANY OF THE OFFICERS, AGENTS OR
EMPLOYEES OF THE EMPLOYER AT ANY PLACE," AND ALSO "FROM OBSTRUCTING, OR
ATTEMPTING TO OBSTRUCT THE FREE USE OF THE STREETS ADJACENT TO THE
EMPLOYER'S PLACE OF BUSINESS, AND THE FREE INGRESS AND EGRESS TO AND
FROM THE EMPLOYER'S PROPERTY," AND (2) ALL "PICKETING OR PATROLLING" OF
THE EMPLOYER'S PREMISES.  FOR REASONS HEREAFTER STATED, WE CONCLUDE
THAT THE STATE COURT MAY LAWFULLY ENJOIN CONDUCT OF SUBSTANTIALLY THE
FIRST CATEGORY BUT NOT OF THE SECOND. 

MOST OF THE MATERIAL FACTS ARE UNCONTROVERTED.  IN 1955, RESPONDENT,
RAINFAIR, INC., WAS A WISCONSIN CORPORATION WITH HEADQUARTERS IN
RACINE, WISCONSIN.  IT OWNED AND OPERATED A PLANT IN WYNNE, ARKANSAS,
AN ESSENTIALLY RURAL COMMUNITY OF ABOUT 4,000 INHABITANTS.  ABOUT 100
WOMEN AND SEVEN MEN WERE THERE EMPLOYED IN THE MANUFACTURE OF MEN'S
SLACKS WHICH WERE SHIPPED IN INTERSTATE COMMERCE.  NONE OF THE
EMPLOYEES WERE MEMBERS OF A LABOR UNION BUT MANY HAD SIGNED
APPLICATIONS TO JOIN THE AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO,
WHICH IS ONE OF THE PETITIONERS. 

APPARENTLY IN AN EFFORT TO COMPEL THE EMPLOYER TO RECOGNIZE THE UNION
AS THE BARGAINING AGENT OF THE EMPLOYEES, 29 OF THE EMPLOYEES DID NOT
REPORT FOR WORK ON MAY 2, 1955.  A PICKET LINE WAS ESTABLISHED ON THE
STREET IN FRONT OF THE PLANT.  STRIKE HEADQUARTERS WERE MAINTAINED
ACROSS THE STREET FROM THE PLANT ENTRANCE.  NEARLY ALL OF THE STRIKERS
WERE WOMEN.  THEIR NUMBER VARIED FROM EIGHT TO 37.  ALL WAS NOT QUIET,
HOWEVER.  ON ONE OCCASION NAILS WERE STREWN OVER THE COMPANY'S PARKING
LOT AND, ABOUT A WEEK LATER, THE WHOLE LOT WAS "SEEDED" WITH ROOFING
TACKS.  TACKS WERE ALSO SCATTERED IN THE DRIVEWAY OF THE PLANT
MANAGER'S HOME AND ON THE DRIVEWAYS OF 12 OF THE NONSTRIKING WOMEN
EMPLOYEES.  ONE OF THE PICKETS TOLD THE PLANT MANAGER THAT SHE WOULD
"WIPE THE SIDEWALK" WITH HIM AND SEND HIM BACK TO WISCONSIN BECAUSE HE
"WAS NOTHING BUT TRASH."  THE PLANT MANAGER WAS FOLLOWED BY THE
STRIKERS EACH TIME HE LEFT THE PLANT; HE ALSO WAS HARASSED AT NIGHT BY
OCCASIONAL SHOUTING AT HIS HOME AND BY NUMEROUS ANONYMOUS TELEPHONE
CALLS. 

IMMEDIATELY AFTER THE STRIKE WAS CALLED, RESPONDENT, BY REGISTERED
MAIL, INFORMED EACH OF THE STRIKERS THAT, IF THEY DID NOT RETURN TO
WORK WITHIN A FEW DAYS, THE COMPANY WOULD ASSUME THAT THOSE NOT
RETURNING HAD QUIT THEIR JOBS.  ONLY THREE RETURNED.  THIRTEEN NEW
EMPLOYEES WERE HIRED.  THE STRIKE ENDED ON MAY 19, THE PICKETS WERE
WITHDRAWN AND THE STRIKERS APPLIED FOR REINSTATEMENT.  RESPONDENT,
HOWEVER, DECLINED TO ARRANGE FOR IMMEDIATE REINSTATEMENT.  ON JUNE 17,
THE STRIKERS VOTED TO RE-ESTABLISH THE PICKET LINE ON MONDAY, JUNE 20. 
(FN1)  THE PURPOSE WAS TO PROTEST AGAINST RESPONDENT'S FAILURE TO
RECOGNIZE THE UNION AND ITS REFUSAL TO REINSTATE THE EMPLOYEES WHO HAD
APPLIED FOR REINSTATEMENT IN MAY. 

SHORTLY AFTER MIDNIGHT, ON THE MORNING OF JUNE 20, TWO WOMEN STRIKERS
DELIBERATELY DROVE A SHARP INSTRUMENT INTO TWO TIRES OF A CAR OWNED BY
THE DAUGHTER OF ONE OF THE NONSTRIKING WOMEN EMPLOYEES.  (FN2)  AT
ABOUT 5:15 A.M. THE POLICE WERE SUMMONED TO THE PLANT WHERE THEY FOUND
A FIVE-FOOT BLACK SNAKE INSIDE THE PLANT BENEATH A BROKEN WINDOW.  AT
ABOUT 6 A.M. PICKETING WAS RESUMED.  (FN3) ALTHOUGH THE UNION POSTED
NOTICES WARNING THE STRIKERS AGAINST COMMITTING ACTS OF VIOLENCE, A
UNION REPRESENTATIVE LATER WAS SUFFICIENTLY CONCERNED TO ASK THE POLICE
TO HAVE SOMEONE REGULARLY ON DUTY AT THE ENTRANCE TO THE PLANT.  THE
EVIDENCE SHOWS THAT THE TENSION WAS IN LARGE PART CAUSED BY THE
ENORMOUS AMOUNT OF ABUSIVE LANGUAGE HURLED BY THE STRIKERS AT THE
COMPANY EMPLOYEES.  THE SUPREME COURT OF ARKANSAS LATER SUMMARIZED THIS
AS FOLLOWS: 

"AS THE EMPLOYEES WOULD GO TO AND FROM WORK AT THE PLANT, OR GO TO
LUNCH, OR TAKE A RECESS, THE STRIKERS WOULD CONGREGATE ALONG THE WEST
EDGE OF THEIR LOT AND SOMETIMES IN ROWENA STREET AND ENGAGE IN LOUD AND
OFFENSIVE NAME CALLING, SINGING OR SHOUTING DIRECTED AT THE WORKERS. 
THEY WOULD CALL THE WORKERS 'SCABS,' 'DIRTY SCABS,' 'FAT SCABS,'
'YELLOW SCABS,' 'CRAZY SCABS,' 'COTTON PATCH SCABS,' 'PONY TAILED
SCABS,' 'FUZZY HEADED SCABS,' 'FOOLS,' 'COTTON PICKING FOOLS,' AND
OTHER SIMILAR NAMES.  THIS TOOK PLACE EVERY TIME AN EMPLOYEE LEFT OR
ENTERED THE PLANT.  IT WAS DONE BY THE STRIKERS INDIVIDUALLY, IN
COUPLES OR BY THE ENTIRE GROUP AND IN A LOUD AND BOISTEROUS MANNER. 
ONE WITNESS DESCRIBED IT AS 'JUST BEDLAM' WHEN MORE THAN A DOZEN JOINED
IN THE SHOUTING.  PARTICULAR NAMES OR REMARKS WERE RESERVED FOR
INDIVIDUAL WORKERS.  ONE PREGNANT WORKER WAS GREETED WITH, 'GET THE HOT
WATER READY,' OR, 'I AM COMING TO MAKE ANOTHER PAYMENT ON THE BABY,
CALL DR. BEATON,' OR, 'WHY, YOU CAN WORK ANOTHER HOUR UNTIL YOU GO TO
THE DELIVERY ROOM.'  THIS WORKER AND ANOTHER DROVE TO A FILLING STATION
FOR GASOLINE WHEN TWO OF THE STRIKERS DROVE UP AND TOLD THE ATTENDANT
NOT TO WAIT ON 'THESE SCABS' BEFORE HE WAITED ON THE STRIKERS. 

"ONE WORKER SAID THE STRIKERS ALWAYS CALLED HER 'FAT SCAB,' AND THAT
INDIVIDUAL PICKETS AND STRIKERS MADE FUN OF HER CLOTHING AND ASKED HER
IF 'PETE,' THE PLANT MANAGER, STILL LIKED HER 'LOW-CUT DRESSES AND
EARRINGS.'  THIS MADE THE EMPLOYEE SO ANGRY SHE INVITED THE PICKET TO
COME OVER AND 'MAKE IT SOME OF HER BUSINESS'  ...  . 

"THE STRIKERS SANG SONGS WITH IMPROVISED LYRICS TO THE TUNE OF
CERTAIN POPULAR BALLADS AND RELIGIOUS AND UNION SONGS.  'WHEN THE
SAINTS GO MARCHING IN' BECAME 'WHEN THE SCABS GO MARCHING IN' AND THE
BALLAD, 'DAVY CROCKETT,' BEGAN, 'BORN IN A COTTON PATCH IN ARKANSAS,
THE GREENEST GALS WE EVER SAW  ...  .' 

"THE WOMEN PICKETS WOULD STAND IN THE STREET OR SIT NEAR THE PLANT
AND SHOUT UGLY NAMES, STICK OUT THEIR TONGUES, HOLD THEIR NOSES AND
MAKE A VARIETY OF INDECENT GESTURES WHILE POINTING AT THE WORKERS IN
THE PLANT.  SEVERAL WORKERS TESTIFIED THE CONTINUOUS NAME CALLING AND
BOISTEROUS CONDUCT OF THE STRIKERS MADE THEM AFRAID, ANGRY, ILL OR
NERVOUS AND HAD AN ADVERSE EFFECT ON THEIR ABILITY TO PROPERLY DO THEIR
WORK.  SOME OF THE WORKERS WOULD TALK BACK TO THE STRIKERS WHILE OTHERS
REMAINED SILENT.  THE CHIEF OF POLICE OF WYNNE TESTIFIED THERE WAS MORE
TENSION DURING THE SECOND PICKETING THAN THE FIRST AND THAT HE WAS
FEARFUL THERE WAS GOING TO BE TROUBLE DURING THE SECOND PICKETING AND
SO INFORMED UNION STAFF MEMBERS.  ONE STAFF MEMBER CALLED HIM ONCE WHEN
TROUBLE SEEMED IMMINENT AND WANTED TO 'GO ON RECORD' AS HAVING
REQUESTED THE PRESENCE OF THE OFFICER."  226 ARK. 80, 83-84, 288 S.W.2D
589, 591. 

ON JUNE 24, RESPONDENT FILED A COMPLAINT IN THE LOCAL CHANCERY
COURT.  IT DESCRIBED THE CONDUCT OF THE STRIKERS AND ALLEGED THAT SUCH
CONDUCT AMOUNTED TO "UNLAWFUL ACTS  ...  FOR THE UNLAWFUL PURPOSE OF
INTIMIDATING AND COERCING" RESPONDENT'S EMPLOYEES INTO JOINING THE
UNION, THAT RESPONDENT HAD NO ADEQUATE REMEDY AT LAW AND THAT IT WAS
SUFFERING IRREPARABLE DAMAGE FROM SUCH CONDUCT.  THE COURT ACTED UPON
THE COMPLAINT AND THE TESTIMONY OF THE PLANT MANAGER AND ISSUED A
TEMPORARY INJUNCTION.  AFTER FULL HEARING, IT MADE THE INJUNCTION
PERMANENT ON SEPTEMBER 15.  THE TRIAL COURT'S FINDINGS INCLUDED THE
FOLLOWING STATEMENT: 

"THAT THE DEFENDANTS, IN PICKETING THE PLAINTIFF'S PLANT, HAVE
RESORTED TO VIOLENCE, COERCION AND INTIMIDATION, AND SUCH OTHER
UNLAWFUL CONDUCT AS WAS CALCULATED TO CAUSE A BREACH OF THE PEACE, AND
THAT THE DEFENDANTS HAVE UNLAWFULLY ABUSED THE RIGHT TO PEACEABLY
PICKET, AS GRANTED TO THEM BY THE LAWS OF THIS STATE AND THE FEDERAL
CONSTITUTION, AND THAT SAID DEFENDANTS SHOULD BE PERMANENTLY ENJOINED
FROM PICKETING THE PLAINTIFF'S PLANT." 

THE PERMANENT DECREE ENJOINED NOT ONLY THE THREATENING AND
INTIMIDATION OF THE EMPLOYEES OF RESPONDENT AT ANY PLACE, BUT ALSO ALL
PICKETING OR PATROLLING OF RESPONDENT'S PREMISES BY THE NAMED
DEFENDANTS AND ALL OTHER PERSONS IN SYMPATHY OR ACTING IN CONCERT WITH
THEM.  (FN4)  THE SUPREME COURT OF ARKANSAS AFFIRMED THE DECREE.  226
ARK. 80, 288 S.W.2D 589.  WE GRANTED CERTIORARI LARGELY BECAUSE OF THE
SWEEPING LANGUAGE OF THE DECREE.  352 U.S. 822. 

THE APPLICABLE PRINCIPLES OF LAW ARE SUBSTANTIALLY AGREED UPON. 
RESPONDENT CONCEDES THAT IT IS ENGAGED IN INTERSTATE COMMERCE AND THAT
ITS EMPLOYEES ARE ENTITLED TO THE PROTECTION OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, 61 STAT. 136, 29 U.S.C. SEC. 151. 
RESPONDENT DOES NOT CONTEND THAT THE STATE COURT HAD POWER TO ENJOIN
PEACEFUL ORGANIZED ACTIVITY, RECOGNIZING THAT GENERALLY THE NATIONAL
LABOR RELATIONS BOARD HAS EXCLUSIVE JURISDICTION OF SUCH MATTERS. 
WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468.  PETITIONERS CONCEDE THAT
THE STATE COURT HAD THE POWER TO ENJOIN VIOLENCE.  AUTO WORKERS V.
WISCONSIN BOARD, 351 U.S. 266; ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD,
315 U.S. 740.   RESPONDENT CONTENDS THAT THE RECORD HERE SHOWS A
PATTERN OF VIOLENCE SO ENMESHED IN THE PICKETING THAT, TO RESTORE
ORDER, IT WAS NECESSARY TO ENJOIN ALL ORGANIZED CONDUCT.  PETITIONERS,
ON THE OTHER HAND, URGE THAT THERE WAS NO VIOLENCE HERE AND NO THREAT
OF IT AND, ACCORDINGLY, THAT THERE WAS NO FACTUAL WARRANT FOR THE
INJUNCTION WHICH ISSUED. 

THE ISSUE HERE IS WHETHER OR NOT THE CONDUCT AND LANGUAGE OF THE
STRIKERS WERE LIKELY TO CAUSE PHYSICAL VIOLENCE.  PETITIONERS URGE THAT
ALL OF THIS ABUSIVE LANGUAGE WAS PROTECTED AND THAT THEY COULD NOT,
THEREFORE, BE ENJOINED FROM USING IT.  WE CANNOT AGREE.  WORDS CAN
READILY BE SO COUPLED WITH CONDUCT AS TO PROVOKE VIOLENCE.  SEE
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571-572.  PETITIONERS
CONTEND THAT THE WORDS USED, PRINCIPALLY "SCAB" AND VARIATIONS THEREON,
ARE WITHIN A PROTECTED TERMINOLOGY.  BUT IF A SUFFICIENT NUMBER YELL
ANY WORD SUFFICIENTLY LOUDLY SHOWING AN INTENT TO RIDICULE, INSULT OR
ANNOY, NO MATTER HOW INNOCUOUS THE DICTIONARY DEFINITION OF THAT WORD,
THE EFFECT MAY CEASE TO BE PERSUASION AND BECOME INTIMIDATION AND
INCITEMENT TO VIOLENCE.  (FN5) WYNNE IS NOT AN INDUSTRIAL METROPOLIS. 
WHEN, IN A SMALL COMMUNITY, MORE THAN 30 PEOPLE GET TOGETHER AND ACT AS
THEY DID HERE, AND HEAP ABUSE ON THEIR NEIGHBORS AND FORMER FRIENDS, A
COURT IS JUSTIFIED IN FINDING THAT VIOLENCE IS IMMINENT.  RECOGNIZING
THAT THE TRIAL COURT WAS IN A BETTER POSITION THAN WE CAN BE TO ASSESS
THE LOCAL SITUATION, WE THINK THE EVIDENCE SUPPORTS ITS CONCLUSION,
AFFIRMED BY THE STATE SUPREME COURT, THAT THE CONDUCT AND MASSED NAME
CALLING BY PETITIONERS WERE CALCULATED TO PROVOKE VIOLENCE AND WERE
LIKELY TO DO SO UNLESS PROMPTLY RESTRAINED. 

THOUGH THE STATE COURT WAS WITHIN ITS DISCRETIONARY POWER IN
ENJOINING FUTURE ACTS OF VIOLENCE, INTIMIDATION AND THREATS OF VIOLENCE
BY THE STRIKERS AND THE UNION, YET IT IS EQUALLY CLEAR THAT SUCH COURT
ENTERED THE PRE-EMPTED DOMAIN OF THE NATIONAL LABOR RELATIONS BOARD
INSOFAR AS IT ENJOINED PEACEFUL PICKETING BY PETITIONERS.  THE
PICKETING PROPER, AS CONTRASTED WITH THE ACTIVITIES AROUND THE
HEADQUARTERS, WAS PEACEFUL.  THERE WAS LITTLE, IF ANY, CONDUCT DESIGNED
TO EXCLUDE THOSE WHO DESIRED TO RETURN TO WORK.  NOR CAN WE SAY THAT A
PATTERN OF VIOLENCE WAS ESTABLISHED WHICH WOULD INEVITABLY REAPPEAR IN
THE EVENT PICKETING WERE LATER RESUMED.  CF. MILK WAGON DRIVERS UNION
V. MEADOWMOOR DAIRIES, INC., 312 U.S. 287.  WHAT VIOLENCE THERE WAS WAS
SCATTERED IN TIME AND MUCH OF IT WAS UNCONNECTED WITH THE PICKETING. 
THERE IS NOTHING IN THE RECORD TO INDICATE THAT AN INJUNCTION AGAINST
SUCH CONDUCT WOULD BE INEFFECTIVE IF PICKETING WERE RESUMED. 

ACCORDINGLY, INSOFAR AS THE INJUNCTION BEFORE US PROHIBITS
PETITIONERS AND OTHERS COOPERATING WITH THEM FROM THREATENING VIOLENCE
AGAINST, OR PROVOKING VIOLENCE ON THE PART OF, ANY OF THE OFFICERS,
AGENTS OR EMPLOYEES OF RESPONDENT AND PROHIBITS THEM FROM OBSTRUCTING
OR ATTEMPTING TO OBSTRUCT THE FREE USE OF THE STREETS ADJACENT TO
RESPONDENT'S PLACE OF BUSINESS, AND THE FREE INGRESS AND EGRESS TO AND
FROM THAT PROPERTY, IT IS AFFIRMED.  ON THE OTHER HAND, TO THE EXTENT
THE INJUNCTION PROHIBITS ALL OTHER PICKETING AND PATROLLING OF
RESPONDENT'S PREMISES AND IN PARTICULAR PROHIBITS PEACEFUL PICKETING,
IT IS SET ASIDE.  THE JUDGMENT OF THE SUPREME COURT OF ARKANSAS IS
VACATED AND THE CASE IS REMANDED TO IT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  IN THE MEANTIME THE UNION HAD FILED UNFAIR LABOR PRACTICE
CHARGES AGAINST RESPONDENT BEFORE THE NATIONAL LABOR RELATIONS BOARD. 
THESE WERE STILL PENDING AT THE TIME OF THE HEARING OF THE INSTANT
CASE.  THE UNION ALSO REQUESTED THE BOARD TO CONDUCT A REPRESENTATION
ELECTION, BUT THIS REQUEST WAS WITHDRAWN BEFORE THE HEARING ON THE
INJUNCTION.  AT AN ELECTION HELD ON OCTOBER 19, A MAJORITY OF THE
EMPLOYEES OF RESPONDENT VOTED NOT TO BE REPRESENTED BY THE UNION. 

FN2  THEY LATER WERE CONVICTED OF THIS MISDEMEANOR. 

FN3  THE PLACARDS WERE INSCRIBED, "RAINFAIR WORKERS ON STRIKE,
RAINFAIR IS UNFAIR TO ITS EMPLOYEES, AMALGAMATED CLOTHING WORKERS OF
AMERICA, CIO."    FN4  "IT IS, THEREFORE, CONSIDERED AND DECREED BY
THIS COURT THAT THE DEFENDANTS JAMES E. YOUNGDAHL  ...  AND EACH OF
THEM, AND THEIR AGENTS AND EMPLOYEES, AND EACH AND EVERY ONE OF THE
OFFICERS AND MEMBERS OF AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO,
AND ALL OTHER PERSONS IN SYMPATHY, OR ACTING IN CONCERT WITH THEM, BE,
AND THEY ARE HEREBY PERMANENTLY ENJOINED WHILE ON, ADJACENT TO, OR NEAR
PLAINTIFF'S PREMISES LOCATED ON MARTIN DRIVE AND ROWENA STREET, IN
WYNNE, ARKANSAS, FROM INTERFERING WITH PLAINTIFF'S BUSINESS, ITS
CUSTOMERS AND EMPLOYEES, AND FROM PICKETING OR PATROLLING, OR CAUSING
TO BE PICKETED OR PATROLLED THE PLAINTIFF'S PREMISES, AND THE
SIDEWALKS, STREETS, OR OTHER PROPERTY ADJACENT TO PLAINTIFF'S PREMISES,
WITH PLACARDS OR BANNERS DESIGNATING SAID PLACE OF BUSINESS AS UNFAIR
TO ORGANIZED LABOR, OR WITH PLACARDS OTHERWISE SO WORDED AS TO GIVE
SAID PLACE OF BUSINESS SUCH DESIGNATION; THAT THE DEFENDANTS, AND EACH
OF THEM, THEIR AGENTS AND EMPLOYEES, AND THE OFFICERS AND MEMBERS OF
THE ABOVE-MENTIONED UNION, AND ALL SYMPATHIZERS, AND ALL OTHER PERSONS
ACTING IN CONCERT WITH THEM, BE, AND THEY ARE HEREBY RESTRAINED AND
ENJOINED FROM ACCOSTING AND DETAINING, OR CAUSING TO BE ACCOSTED OR TO
BE DETAINED ON THE SIDEWALKS OR STREETS ADJACENT TO OR ON PLAINTIFF'S
PREMISES, ANY PERSON OR PERSONS SEEKING TO ENTER OR DEPART FROM SAID
PLACE OF BUSINESS FOR THE PURPOSE OF DISSUADING THEM FROM PATRONIZING,
OR WORKING FOR PLAINTIFF, OR FROM CALLING ATTENTION TO ANY ALLEGED
UNFAIRNESS OF PLAINTIFF, OR ITS PLACE OF BUSINESS, TO ORGANIZED LABOR;
FROM THREATENING, INTIMIDATING OR COERCING ANY OF THE OFFICERS, AGENTS
OR EMPLOYEES OF PLAINTIFF AT ANY PLACE; FROM LOITERING AND CONGREGATING
AROUND AND UNDER THE TENT AND UPON THE PROPERTY THAT IS USED AS THE
UNION'S HEADQUARTERS, LOCATED DIRECTLY ACROSS ROWENA STREET IN FRONT OF
PLAINTIFF'S PREMISES; AND FROM OBSTRUCTING, OR ATTEMPTING TO OBSTRUCT
THE FREE USE OF THE STREETS ADJACENT TO PLAINTIFF'S PLACE OF BUSINESS,
AND THE FREE INGRESS AND EGRESS TO AND FROM PLAINTIFF'S PROPERTY." 

FN5  IN ARKANSAS THERE WAS THEN IN EFFECT A STATUTE OF LONG STANDING
WHICH EXPRESSLY MADE IT A CRIME FOR ANY PERSON TO "MAKE USE OF ANY
PROFANE, VIOLENT, VULGAR, ABUSIVE OR INSULTING LANGUAGE TOWARD OR ABOUT
ANY OTHER PERSON IN HIS PRESENCE OR HEARING, WHICH LANGUAGE IN ITS
COMMON ACCEPTATION IS CALCULATED TO AROUSE TO ANGER THE PERSON ABOUT OR
TO WHOM IT IS SPOKEN OR ADDRESSED, OR TO CAUSE A BREACH OF THE PEACE OR
AN ASSAULT  ...  ."  ARK.  STAT., 1947, 41-1412. 
..END :














AMERICAN TRUCKING ASSOCIATIONS, INC. V. UNITED STATES 355 U.S. 141 


NO. 6.  ARGUED OCTOBER 23, 1957 - DECIDED DECEMBER 9, 1957* - 144 F.
SUPP. 365, AFFIRMED. 

*TOGETHER WITH NO. 8, RAILWAY LABOR EXECUTIVES' ASSOCIATION ET AL. V.
UNITED STATES ET AL., ALSO ON APPEAL FROM THE SAME COURT. 


1.  IN THIS PROCEEDING UNDER SEC. 207(A) OF THE INTERSTATE COMMERCE
ACT, WHEREIN A MOTOR CARRIER SUBSIDIARY OF A RAILROAD SOUGHT A
CERTIFICATE PERMITTING IT TO PROVIDE ORDINARY MOTOR CARRIER SERVICE AT
OR NEAR THE PARENT RAILROAD'S LINE, THE INTERSTATE COMMERCE COMMISSION
WAS NOT REQUIRED BY SEC. 5(2)(B) AND THE NATIONAL TRANSPORTATION POLICY
TO RESTRICT SUCH MOTOR CARRIER SERVICE TO THAT WHICH IS AUXILIARY TO,
OR SUPPLEMENTAL OF, THE PARENT RAILROAD'S SERVICES.  PP. 143-144, 147
152. 

(A)  SECTION 207 MAKES NO REFERENCE TO THE PHRASE "SERVICE  ...  IN
ITS OPERATIONS" USED IN SEC. 5(2)(B), NOR IS THERE ANY LANGUAGE EVEN
SUGGESTING A MANDATORY LIMITATION TO SERVICE WHICH IS AUXILIARY OR
SUPPLEMENTARY.  P. 149. 

(B)  THE LEGISLATIVE HISTORY OF THE MOTOR CARRIER ACT OF 1935 GIVES
NO INDICATION THAT SEC. 213(A)(1), THE PREDECESSOR OF SEC. 5(2)(B) OF
THE PRESENT ACT, WAS TO BE CONSIDERED AS A LIMITATION ON APPLICATIONS
UNDER SEC. 207.  P. 149. 

(C)  IN INTERPRETING SEC. 207, THE COMMISSION HAS ACCEPTED THE POLICY
OF SEC. 5(2)(B) AS A GUIDING LIGHT, NOT AS A RIGID LIMITATION.  PP. 149
150. 

(D)  CONGRESS DID NOT INTEND THE RIGID REQUIREMENT OF SEC. 5(2)(B) TO
BE CONSIDERED AS A LIMITATION ON CERTIFICATES ISSUED UNDER SEC. 207. 
P. 150. 

(E)  THIS HOLDING IS NOT CONTRARY TO UNITED STATES V. ROCK ISLAND
MOTOR TRANSIT CO., 340 U.S. 419, OR UNITED STATES V. TEXAS & PACIFIC
MOTOR TRANSPORT CO., 340 U.S. 450.  P. 151. 

(F)  THE UNDERLYING POLICY OF SEC. 5(2)(B) MUST NOT BE DIVORCED FROM
PROCEEDINGS FOR NEW CERTIFICATES UNDER SEC. 207, AND THE COMMISSION
MUST TAKE "COGNIZANCE" OF THE NATIONAL TRANSPORTATION POLICY AND APPLY
THE ACT "AS A WHOLE"; BUT THE COMMISSION DOES NOT ACT BEYOND ITS
STATUTORY AUTHORITY WHEN IN THE PUBLIC INTEREST IT OCCASIONALLY DEPARTS
FROM THE AUXILIARY AND SUPPLEMENTARY LIMITATIONS IN A SEC. 207
PROCEEDING.  PP. 151-152. 

2.  IN THIS CASE, THE COMMISSION HAS NOT PERMITTED THE SEC. 207
PROCEEDINGS TO BE USED AS A DEVICE TO EVADE THE RESTRICTIONS PREVIOUSLY
IMPOSED IN THE ACQUISITION PROCEEDINGS UNDER SEC. 5(2)(B).  P. 152. 

3.  IN THIS CASE, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE
COMMISSION'S FINDING OF PUBLIC CONVENIENCE AND NECESSITY AND ITS
ISSUANCE OF THE CERTIFICATE.  PP. 152-154. 

(A)  PUBLIC NEED FOR THE MOTOR CARRIER'S OPERATION IN TRUCKLOAD
TRAFFIC IN THIS CASE CAN BE GROUNDED TO SOME EXTENT ON THE NEED FOR ITS
OPERATION IN "PEDDLE TRAFFIC," SINCE ECONOMIC JUSTIFICATION FOR
CARRYING ON A COSTLY PEDDLE OPERATION DEPENDS ON COMBINING IT WITH A
MORE LUCRATIVE TRUCKLOAD OPERATION.  PP. 153-154. 

(B)  WHILE RAILROADS ARE NOT ALLOWED TO ENTER THE MOTOR TRUCKING
INDUSTRY PRIMARILY TO BUILD AN INDEPENDENTLY PROFITABLE TRUCKING
OPERATION, THERE IS NO FOUNDATION IN THE ACT FOR SO CONSTRUING SEC. 207
AS TO REQUIRE THAT ANY RAILROAD OPERATION IN THE MOTOR TRUCKING FIELD
BE UNPROFITABLE.  P. 154. 

(C)  IF THE UNRESTRICTED OPERATIONS PERMITTED IN THIS CASE ARE
DESTRUCTIVE OF COMPETITION OR OTHERWISE DETRIMENTAL TO THE PUBLIC
SERVICE, THE SITUATION WOULD NOT BE WITHOUT REMEDY, SINCE THE
COMMISSION HAS RESERVED CONTINUING JURISDICTION WHICH WILL ENABLE IT TO
MAKE CERTAIN THAT THE UNLIMITED CERTIFICATE ISSUED HERE DOES NOT
OPERATE TO DEFEAT THE NATIONAL TRANSPORTATION POLICY.  P. 154. 

4.  IN THIS CASE, RAILWAY LABOR ORGANIZATIONS REPRESENTING EMPLOYEES
OF THE PARENT RAILROAD HAD STANDING UNDER SECS. 17(11) AND 205(H) OF
THE ACT TO SUE TO SET ASIDE THE COMMISSION'S ORDER.  P. 144. 

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS INVOLVE, AMONG SUBSIDIARY ISSUES, THE BASIC QUESTION OF
WHETHER THE INTERSTATE COMMERCE COMMISSION IN A PROCEEDING UNDER SEC.
207(A) (FN1) OF THE INTERSTATE COMMERCE ACT, WHEREIN A RAILROAD
SUBSIDIARY SEEKS A CERTIFICATE PERMITTING IT TO PROVIDE ORDINARY MOTOR
CARRIER SERVICE AT OR NEAR THE PARENT RAILROAD'S LINE, IS REQUIRED BY
SEC. 5(2)(B) (FN2) OF THE ACT AND THE NATIONAL TRANSPORTATION POLICY TO
RESTRICT SUCH MOTOR CARRIER SERVICE TO THAT WHICH IS AUXILIARY TO, OR
SUPPLEMENTAL OF, THE PARENT RAILROAD'S SERVICES.  A THREE-JUDGE
DISTRICT COURT SITTING IN THE DISTRICT OF COLUMBIA UPHELD THE ACTION OF
THE COMMISSION IN ISSUING A CERTIFICATE WITHOUT SUCH RESTRICTIONS.  144
F. SUPP. 365.  WE AGREE WITH THE CONCLUSION OF THE DISTRICT COURT THAT
UNDER THE CIRCUMSTANCES OF THIS CASE THE ACTION OF THE COMMISSION WAS
WELL FOUNDED. 

AT THE TIME WE NOTED PROBABLE JURISDICTION OF THE APPEALS, 352 U.S.
816 (1956), COUNSEL IN NO. 8 WERE INVITED TO DISCUSS THE ISSUE OF
APPELLANTS' STANDING TO SUE.  NONE OF THE PARTIES NOW QUESTION THAT
STANDING, AND OUR EXAMINATION OF SEC. 17(11) (FN3) AND SEC. 205(H)
(FN4) OF THE ACT LEADS US TO CONCLUDE THAT APPELLANTS MAY PROPERLY
BRING THIS ACTION.  SEE BROTHERHOOD OF RAILROAD TRAINMEN V. BALTIMORE &
O.R. CO., 331 U.S. 519 (1947). 

IN 1938 THE COMMISSION AUTHORIZED ROCK ISLAND MOTOR TRANSIT, A WHOLLY
OWNED SUBSIDIARY OF THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD, TO
PURCHASE THE PROPERTY AND OPERATING RIGHTS OF THE WHITE LINE MOTOR
FREIGHT COMPANY, BETWEEN SILVIS, ILLINOIS, AND OMAHA, NEBRASKA.  5
M.C.C. 451.  THE OPERATING CERTIFICATE, ISSUED IN 1941, RESTRICTED
MOTOR TRANSIT TO SERVICE TO OR FROM POINTS ON THE ROCK ISLAND RAILROAD,
SUBJECT TO ANY FURTHER RESTRICTIONS THE COMMISSION MIGHT IMPOSE "TO
INSURE THAT THE SERVICE SHALL BE AUXILIARY OR SUPPLEMENTARY TO THE
TRAIN SERVICE  ...  ."  NO. MC-29130.  THREE YEARS LATER THE COMMISSION
ALLOWED MOTOR TRANSIT TO PURCHASE PROPERTY AND OPERATING RIGHTS OF THE
FREDERICKSON LINES, COVERING ROUTES BETWEEN ATLANTIC, IOWA, AND OMAHA. 
39 M.C.C. 824.  PRIOR TO ISSUING AN OPERATING CERTIFICATE FOR THE
FREDERICKSON ROUTES, HOWEVER, THE COMMISSION REOPENED BOTH PROCEEDINGS
AND IMPOSED FIVE CONDITIONS ON MOTOR TRANSIT'S OPERATION OVER THE
COMBINED ROUTES.  (FN5) 

ALTHOUGH MOTOR TRANSIT SUCCEEDED IN ITS EFFORTS TO HAVE THIS ORDER
SET ASIDE BY A THREE-JUDGE DISTRICT COURT, 90 F. SUPP. 516, WE UPHELD
ON APPEAL THE POWER OF THE COMMISSION TO IMPOSE THE CONDITIONS, AND
REVERSED THE ORDER OF THE DISTRICT COURT.  UNITED STATES V. ROCK ISLAND
MOTOR TRANSIT CO., 340 U.S. 419 (1951).  PURSUANT TO OUR HOLDING, A
CERTIFICATE WAS ISSUED IN SEPTEMBER 1951, CONTAINING THE RESTRICTIONS
AS ORIGINALLY ORDERED.  (FN6) 

SOON THEREAFTER MOTOR TRANSIT FILED WITH THE COMMISSION THE PRESENT
APPLICATION FOR A CERTIFICATION OF UNRESTRICTED OPERATIONS.  AUTHORITY
WAS REQUESTED TO SERVE THE POINTS ALONG THE WHITE LINE AND FREDERICKSON
ROUTES AS WELL AS CERTAIN OFF-LINE POINTS, ALL OF WHICH PARALLEL
GENERALLY THE LINES OF THE PARENT RAILROAD BETWEEN CHICAGO AND OMAHA. 
THE APPLICATION WAS SUBSTANTIALLY GRANTED IN NOVEMBER 1954.  (FN7)  63
M.C.C. 91.  OPERATIONS WERE AUTHORIZED, FREE OF THE PRIOR CONDITIONS,
BETWEEN SILVIS, ILLINOIS, AND OMAHA.  THE APPLICATION WAS DENIED
INSOFAR AS IT SOUGHT AUTHORITY BETWEEN SILVIS AND CHICAGO; THE
COMMISSION POINTED OUT THAT MOTOR TRANSIT ALREADY POSSESSED SUCH
AUTHORITY. 

THE ORDER WAS ATTACKED IN THE DISTRICT COURT BY AMERICAN TRUCKING
ASSOCIATIONS, INC., ITS REGULAR COMMON CARRIER CONFERENCE, AND NINE
MOTOR CARRIERS - ALL APPELLANTS IN NO. 6.  THE RAILWAY LABOR
EXECUTIVES' ASSOCIATION AND TWO ORGANIZATIONS WHICH SINCE HAVE BECOME
MEMBERS THEREOF - ALL OF WHOM ARE APPELLANTS IN NO. 8 - INTERVENED IN
OPPOSITION TO THE ORDER.  ANSWERS WERE FILED BY THE UNITED STATES AND
THE COMMISSION.  INTERVENORS IN SUPPORT OF THE ORDER INCLUDED MOTOR
TRANSIT, A COMMITTEE OF ITS EMPLOYEES, THE IOWA STATE COMMERCE
COMMISSION, AND NUMEROUS CHAMBERS OF COMMERCE AND SHIPPER
ORGANIZATIONS.  THESE APPEALS WERE TAKEN FROM THE ORDER OF THE DISTRICT
COURT UPHOLDING THE CERTIFICATE AS GRANTED. 

APPELLANTS ADVANCE THREE REASONS WHY THE ORDER SHOULD BE STRICKEN. 
THEY SAY, IN GENERAL, THAT THE COMMISSION IS REQUIRED NOT ONLY IN
ACQUISITION PROCEEDINGS UNDER SEC. 5(2)(B) BUT ALSO IN CERTIFICATION
PROCEEDINGS UNDER SEC. 207 TO LIMIT SERVICE BY A RAIL-OWNED MOTOR
CARRIER TO THAT WHICH IS AUXILIARY TO OR SUPPLEMENTAL OF THE RAIL
SERVICE OF ITS PARENT; THAT THE COMMISSION IS WITHOUT POWER TO VOID
RESTRICTIONS PREVIOUSLY IMPOSED IN ACQUISITION PROCEEDINGS ON THE
SUBTERFUGE OF A SUBSEQUENT SEC. 207 APPLICATION; AND, EVEN IF SUCH
CONTENTIONS HAVE NO VALIDITY, THAT THE EVIDENCE WAS INSUFFICIENT AND
THE FINDINGS INADEQUATE TO SUPPORT THE CERTIFICATION ORDER OF THE
COMMISSION. 

                                        I. 

BY SEC. 5(2)(B), WHICH WAS FORMERLY SEC. 213(A)(1) OF THE MOTOR
CARRIER ACT OF 1935, 49 STAT. 555, THE CONGRESS AUTHORIZED
CONSOLIDATION, MERGER, ACQUISITION, OR LEASE OF CARRIERS IF FOUND BY
THE COMMISSION TO BE "CONSISTENT WITH THE PUBLIC INTEREST."  HOWEVER,
IN TRANSACTIONS INVOLVING A MOTOR CARRIER WHERE A RAILROAD OR ITS
AFFILIATE IS AN APPLICANT, THE CONGRESS DIRECTED THE COMMISSION "NOT TO
ENTER SUCH AN ORDER UNLESS IT FINDS THAT THE TRANSACTION PROPOSED" NOT
ONLY IS IN THE PUBLIC INTEREST BUT "WILL ENABLE SUCH RAILROAD CARRIER
TO USE SERVICE BY MOTOR VEHICLE TO PUBLIC ADVANTAGE IN ITS OPERATIONS
AND WILL NOT UNDULY RESTRAIN COMPETITION."  THE COMMISSION HAS
INTERPRETED THIS MANDATE OF THE CONGRESS TO CONFINE ACQUISITION OF A
MOTOR CARRIER BY A RAILROAD OR ITS AFFILIATE TO "OPERATIONS  ...  WHICH
ARE AUXILIARY OR SUPPLEMENTARY TO TRAIN SERVICE."  (FN8)  WE
SPECIFICALLY APPROVED THIS LONG ADMINISTRATIVE PRACTICE IN UNITED
STATES V. ROCK ISLAND MOTOR TRANSIT CO., SUPRA.  IT WILL BE REMEMBERED
THAT THE ACQUISITIONS OF THE WHITE LINE AND FREDERICKSON ROUTES BY
MOTOR TRANSIT, WHEREIN "AUXILIARY OR SUPPLEMENTAL" RESTRICTIONS WERE
IMPOSED, WERE PURSUANT TO THIS SECTION OF THE ACT. 

THE PRESENT PROCEEDINGS, HOWEVER, WERE INSTITUTED UNDER SEC. 206 ET
SEQ. OF THE ACT, WHICH INVOLVE APPLICATIONS FOR CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY.  MOTOR TRANSIT HAD BEEN CARRYING ON
SCHEDULED PEDDLE OPERATIONS OVER THE ENTIRE WHITE LINE AND FREDERICKSON
ROUTES REGARDLESS OF THE VOLUME OF TRAFFIC AVAILABLE.  BY THIS
APPLICATION IT SOUGHT TO SECURE A CERTIFICATE COVERING THE SAME GENERAL
ROUTES WITHOUT THE RESTRICTIONS IMPOSED IN THE SEC. 5(2)(B)
PROCEEDINGS.  SUCH A CERTIFICATE WOULD ENABLE IT TO HAUL, INTER ALIA,
THE MORE PROFITABLE TRUCKLOAD TRAFFIC, THUS SUPPLEMENTING THE EXPENSIVE
PEDDLE SERVICE.  (FN9) 

CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY IS PREDICATED, MAKES NO
REFERENCE TO THE PHRASE "SERVICE  ...  IN ITS OPERATIONS" USED IN SEC.
5(2)(B), NOR IS THERE ANY LANGUAGE EVEN SUGGESTING A MANDATORY
LIMITATION TO SERVICE WHICH IS AUXILIARY OR SUPPLEMENTARY. 

THE LEGISLATIVE HISTORY OF THE MOTOR CARRIER ACT OF 1935 GIVES NO
INDICATION THAT SEC. 213(A)(1), THE PREDECESSOR OF SEC. 5(2)(B), WAS TO
BE CONSIDERED A LIMITATION ON APPLICATIONS UNDER SEC. 207. 
CONGRESSIONAL DEBATE WAS LARGELY CONFINED TO THE SUBJECT OF
ACQUISITIONS, AND NO REFERENCE TO RAILROAD OPERATION OF MOTOR CARRIERS
APPEARS IN EITHER OF THE COMMITTEE REPORTS.  S. REP. NO. 482, H.R. REP.
NO. 1645, 74TH CONG., 1ST SESS.  CERTAIN AMENDMENTS WERE PROPOSED IN
1938, INCLUDING ONE BY SENATOR SHIPSTEAD WHICH WOULD HAVE ADDED TO SEC.
207 THE SAME LANGUAGE WHICH IN SEC. 213(A) OF THE MOTOR CARRIER ACT AND
SEC. 5(2)(B) OF THE INTERSTATE COMMERCE ACT HAD BEEN CONSTRUED AS A
LIMITATION TO AUXILIARY OR SUPPLEMENTARY SERVICE.  THE SENATOR WITHDREW
HIS AMENDMENT AFTER COMMISSIONER EASTMAN OF THE INTERSTATE COMMERCE
COMMISSION EXPRESSED THE VIEW THAT "IN INTERPRETING AND APPLYING THE
PROVISIONS OF SECTION 207(A) ...  THE COMMISSION SHOULD READ THE ACT AS
A WHOLE AND TAKE COGNIZANCE OF THIS POLICY" OF RESTRICTING CERTIFICATES
TO AUXILIARY OR SUPPLEMENTARY SERVICE.  SEE HEARINGS BEFORE SENATE
COMMITTEE ON INTERSTATE COMMERCE ON S. 3606, 75TH CONG., 3D SESS., PP.
26-30, 141-142. 

IN INTERPRETING SEC. 207, THE COMMISSION HAS ACCEPTED THE POLICY OF
SEC. 5(2)(B) AS A GUIDING LIGHT, NOT AS A RIGID LIMITATION.  WHILE IT
HAS APPLIED AUXILIARY AND SUPPLEMENTARY RESTRICTIONS IN MANY SEC. 207
PROCEEDINGS, THE COMMISSION HAS OCCASIONALLY ISSUED CERTIFICATES TO
RAILROAD SUBSIDIARIES WITHOUT THE RESTRICTIONS WHERE "SPECAL
CIRCUMSTANCES" PREVAIL, NAMELY, WHERE UNRESTRICTED OPERATIONS BY THE
RAIL-OWNED CARRIER ARE FOUND ON SPECIFIC FACTS AND CIRCUMSTANCES TO BE
IN THE PUBLIC INTEREST.  (FN10)  AT LEAST THREE OF THESE CASES HAD BEEN
DECIDED WHEN THE CONGRESS EXTENSIVELY REVISED THE INTERSTATE COMMERCE
ACT BY ENACTMENT OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 898, IN
WHICH SEC. 213 OF THE MOTOR CARRIER ACT WAS SUBSTANTIALLY RE-ENACTED
INTO SEC. 5(2)(B) OF THE INTERSTATE COMMERCE ACT, WHILE SEC.  207(A)
WAS LEFT UNCHANGED. 

WE CONCLUDE, THEREFORE, THAT THE CONGRESS DID NOT INTEND THE RIGID
REQUIREMENT OF SEC.  5(2)(B) TO BE CONSIDERED AS A LIMITATION ON
CERTIFICATES ISSUED UNDER SEC. 207. 

NOR IS THIS CONTRARY TO OUR HOLDING IN UNITED STATES V. ROCK ISLAND
MOTOR TRANSIT CO., SUPRA, AN ACQUISITION CASE IN WHICH THE COURT ALSO
DISCUSSED COMMISSION POLICY UNDER SEC. 207.  WE POINTED OUT THAT "RAIL
AFFILIATES HAVE BEEN PERMITTED TO LEAVE THE LINE OF THE RAILROAD TO
SERVE COMMUNITIES WITHOUT OTHER TRANSPORTATION SERVICE.  THOSE
DIVERGENCES, HOWEVER, ARE AN EXERCISE OF THE DISCRETIONARY AND
SUPERVISORY POWER WITH WHICH CONGRESS HAS ENDOWED THE COMMISSION."  340
U.S., AT 442.  WE FOUND THAT THE COMMISSION'S PURPOSE WAS TO APPLY THE
NATIONAL TRANSPORTATION POLICY SO AS "TO PRESERVE THE INHERENT
ADVANTAGES OF MOTOR-CARRIER SERVICE."  IN DISCUSSING THIS PRACTICE WE
QUOTED AT PAGE 428 FROM THE OPINION OF THE COMMISSION IN THAT CASE,
WHICH STATED THE TEST IN THIS LANGUAGE: 

"IN OTHER WORDS, A RAILROAD APPLICANT FOR AUTHORITY TO OPERATE AS A
COMMON CARRIER BY MOTOR VEHICLE, THOUGH REQUIRED TO DO NO MORE THAN
PROVE, AS ANY OTHER APPLICANT, THAT ITS SERVICE IS REQUIRED BY PUBLIC
CONVENIENCE AND NECESSITY, HAS A SPECIAL BURDEN  ...  BY REASON OF THE
VERY CIRCUMSTANCE THAT IT IS A RAILROAD.  WHERE IT FAILS TO SHOW
SPECIAL CIRCUMSTANCES NEGATIVING ANY DISADVANTAGE TO THE PUBLIC FROM
THIS FACT, A GRANT OF AUTHORITY TO SUPPLY MOTOR SERVICE OTHER THAN
SERVICE AUXILIARY TO AND SUPPLEMENTAL OF TRAIN SERVICE IS NOT
JUSTIFIED."  40 M.C.C. 457, 474. 

IN UNITED STATES V. TEXAS & PACIFIC MOTOR TRANSPORT CO., 340 U.S. 450
(1951), DECIDED ON THE SAME DAY AS ROCK ISLAND, WE UPHELD THE
COMMISSION'S IMPOSITION OF RESTRICTIONS IN A SEC. 207 CASE.  IN TEXAS &
PACIFIC, HOWEVER, THE PROCEEDING INVOLVED THE POWER OF THE COMMISSION
TO IMPOSE THE RESTRICTIONS, A QUESTION NOT BEFORE US HERE. 

WE REPEAT, AS WAS SAID IN THOSE CASES, THAT THE UNDERLYING POLICY OF
SEC. 5(2)(B) MUST NOT BE DIVORCED FROM PROCEEDINGS FOR NEW CERTIFICATES
UNDER SEC. 207.  INDEED, THE COMMISSION MUST TAKE "COGNIZANCE" OF THE
NATIONAL TRANSPORTATION POLICY AND APPLY THE ACT "AS A WHOLE."  BUT,
FOR REASONS WE HAVE STATED, WE DO NOT BELIEVE THAT THE COMMISSION ACTS
BEYOND ITS STATUTORY AUTHORITY WHEN IN THE PUBLIC INTEREST IT
OCCASIONALLY DEPARTS FROM THE AUXILIARY AND SUPPLEMENTARY LIMITATIONS
IN A SEC. 207 PROCEEDING. 

                       II. 

WE FIND NO INDICATIONS THAT THE COMMISSION HAS PERMITTED THE SEC. 207
PROCEEDINGS IN THIS CASE TO BE USED AS A DEVICE TO EVADE SEC. 5(2)(B)
RESTRICTIONS.  CERTIFICATE PROCEEDINGS UNDER SEC. 207 ARE SEPARATE AND
DISTINCT FROM ACQUISITION PROCEEDINGS, ALTHOUGH THE SAME GENERAL POLICY
GOVERNS BOTH.  IF THE PUBLIC INTEREST REQUIRES THAT A SEC. 207
CERTIFICATE BE ISSUED TO A RAIL-OWNED CARRIER WITHOUT RESTRICTION, WE
FIND NO AUTHORITY FOR DENYING THE COMMISSION POWER TO GRANT THE SAME
SIMPLY BECAUSE THE CARRIER JUST EMERGED FROM A SEC. 5(2)(B)
PROCEEDING.  MOREOVER, THE APPROVAL HERE WAS EXPRESSLY SUBJECT TO THE
COMMISSION'S CONTINUING EXAMINATION OF THE ACTIVITY OF MOTOR TRANSIT
WITH A VIEW OF PLACING LIMITATIONS ON ITS OPERATIONS IF FOUND NECESSARY
IN THE PUBLIC INTEREST.  A FURTHER CONDITION MAKES ALL CONTRACTUAL
ARRANGEMENTS BETWEEN MOTOR TRANSIT AND ITS PARENT SUBJECT TO REVISION
BY THE COMMISSION. 

FINALLY, IF UNDER OUR INTERPRETATION A "LOOPHOLE" EXISTS IN THE ACT,
THE COMMISSION HAS SHOWN NO INCLINATION TO PERMIT ITS USE AS SUCH. 
SHOULD THE COMMISSION PROVE TO BE LESS STRINGENT IN THE FUTURE,
APPELLANTS NOT ONLY HAVE RECOURSE TO THE CONGRESS, BUT ALSO TO THE
COURTS FOR REVIEW OF THE COMMISSION'S FINDING THAT "SPECIAL
CIRCUMSTANCES" EXIST. 

                   III.    APPELLANTS' LAST CONTENTION RELATES TO
THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE COMMISSION'S FINDING OF
PUBLIC CONVENIENCE AND NECESSITY.  APPELLANTS CONCEDE THAT PUBLIC NEED
MAY BE FOUND FOR PEDDLE TRAFFIC BETWEEN THE SMALLER POINTS ALONG THE
ROUTES, BUT CONTEST THE FINDINGS OF PUBLIC NEED FOR UNRESTRICTED
SERVICE BETWEEN SUCH MAJOR POINTS AS DAVENPORT, CEDAR RAPIDS, DES
MOINES, AND COUNCIL BLUFFS, IOWA, AND OMAHA, NEBRASKA. 

THE EVIDENCE BEFORE THE COMMISSION WAS SUCH THAT WE ARE NOT INCLINED
TO DISTURB THE FINDINGS.  APPROVAL OF THE APPLICATION WAS URGED BY THE
IOWA STATE COMMERCE COMMISSION, 149 SHIPPERS AND RECEIVERS, 8 MOTOR
CARRIERS WHO INTERLINE TRAFFIC WITH MOTOR TRANSIT (INCLUDING SOME
MEMBERS OF APPELLANT MOTOR TRUCKING ASSOCIATION), AND SEVERAL CHAMBERS
OF COMMERCE AND COMMERCIAL ORGANIZATIONS.  THERE WAS EVIDENCE OF A
SERIOUS NEED FOR LESS-THAN-TRUCKLOAD PEDDLE SERVICE:  OTHER CARRIERS
FREQUENTLY FAILED TO HANDLE SUCH TRAFFIC, AND GAVE SERVICE INFERIOR TO
THAT OF MOTOR TRANSIT WHEN THEY DID OPERATE.  THERE WAS TESTIMONY THAT
THE WEIGHT AND KEY-POINT LIMITATIONS OPERATED TO MAKE EVEN THE MOTOR
TRANSIT SERVICE LESS THAN ADEQUATE.  IT APPEARED THAT THE PEDDLE
TRAFFIC ALONE WAS NOT PROFITABLE, AND THAT IF CONFINED TO IT MOTOR
TRANSIT COULD NO LONGER RENDER THE CALIBER OF PEDDLE SERVICE IT HAD
MAINTAINED PRIOR TO THE IMPOSITION OF THE TEMPORARY RESTRICTIONS. 
FURTHER, THERE WAS EVIDENCE THAT 11 POINTS WOULD BE TOTALLY WITHOUT
PEDDLE SERVICE IF THE AUXILIARY AND SUPPLEMENTAL RESTRICTIONS WERE
APPLIED.  APART FROM THE EFFECT OF RESTRICTED OPERATIONS ON PEDDLE
SERVICE, THE RECORD INDICATES THAT OTHER CARRIERS SOMETIMES HAD BEEN
RELUCTANT TO ACCEPT EVEN TRUCKLOADS IN CERTAIN LOW-RATED COMMODITIES. 

THIS EVIDENCE LEAVES US UNWILLING TO SUGGEST THAT PUBLIC CONVENIENCE
AND NECESSITY COULD ONLY BE ADVANCED BY CONFINING MOTOR TRANSIT TO
SERVICE OF THE SMALLER COMMUNITIES, WHILE LEAVING THE MORE PROFITABLE
BUSINESS TO OTHERS.  PUBLIC NEED FOR MOTOR TRANSIT'S OPERATION IN
TRUCKLOAD TRAFFIC TO SOME EXTENT CAN BE GROUNDED ON THE NEED FOR ITS
OPERATION IN PEDDLE TRAFFIC, SINCE ECONOMIC JUSTIFICATION FOR CARRYING
ON A COSTLY PEDDLE OPERATION DEPENDS ON COMBINING IT WITH A MORE
LUCRATIVE TRUCKLOAD OPERATION.  WHILE IT IS TRUE THAT RAILROADS WERE
NOT ALLOWED TO ENTER THE MOTOR TRUCKING INDUSTRY PRIMARILY TO BUILD AN
INDEPENDENTLY PROFITABLE TRUCKING OPERATION, THERE IS NO FOUNDATION IN
THE INTERSTATE COMMERCE ACT FOR SO CONSTRUING SEC. 207 AS TO REQUIRE
THAT ANY RAILROAD OPERATION IN THE MOTOR TRUCKING FIELD BE
UNPROFITABLE.  OBSERVANCE OF ECONOMIC REALITIES IN ASCERTAINING PUBLIC
NEED IS NO LESS DUE A RAIL-OWNED MOTOR CARRIER THAN AN INDEPENDENT
MOTOR CARRIER. 

IF, AS APPELLANTS FEAR, THE UNRESTRICTED OPERATIONS ARE DESTRUCTIVE
OF COMPETITION OR OTHERWISE DETRIMENTAL TO THE PUBLIC INTEREST, WE
BELIEVE THE SITUATION WOULD NOT BE WITHOUT REMEDY.  THE COMMISSION HAS
RETAINED JURISDICTION "TO IMPOSE IN THE FUTURE WHATEVER RESTRICTIONS OR
CONDITIONS, IF ANY, APPEAR NECESSARY IN THE PUBLIC INTEREST BY REASON
OF MATERIAL CHANGES IN CONDITIONS OR CIRCUMSTANCES SURROUNDING
APPLICANT'S OPERATIONS IN RELATION TO THOSE OF COMPETING MOTOR
CARRIERS."  63 M.C.C., AT 108.  THIS RESERVATION GIVES IT CONTINUING
JURISDICTION TO MAKE CERTAIN THAT THE UNLIMITED CERTIFICATE ISSUED HERE
DOES NOT OPERATE TO DEFEAT THE NATIONAL TRANSPORTATION POLICY.  UNITED
STATES V. ROCK ISLAND MOTOR TRANSIT CO., SUPRA.  AFFIRMED. 

FN1  "SEC.  207.  (A) SUBJECT TO SECTION 210, A CERTIFICATE SHALL BE
ISSUED TO ANY QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE WHOLE OR
ANY PART OF THE OPERATIONS COVERED BY THE APPLICATION, IF IT IS FOUND
THAT THE APPLICANT IS FIT, WILLING, AND ABLE PROPERLY TO PERFORM THE
SERVICE PROPOSED AND TO CONFORM TO THE PROVISIONS OF THIS PART AND THE
REQUIREMENTS, RULES, AND REGULATIONS OF THE COMMISSION THEREUNDER, AND
THAT THE PROPOSED SERVICE, TO THE EXTENT TO BE AUTHORIZED BY THE
CERTIFICATE, IS OR WILL BE REQUIRED BY THE PRESENT OR FUTURE PUBLIC
CONVENIENCE AND NECESSITY; OTHERWISE SUCH APPLICATION SHALL BE DENIED
...  ."  49 STAT. 551, 49 U.S.C. SEC. 307(A). 

FN2  SEC. 5(2)(B)  "  ...  IF THE COMMISSION FINDS THAT, SUBJECT TO
SUCH TERMS AND CONDITIONS AND SUCH MODIFICATIONS AS IT SHALL FIND TO BE
JUST AND REASONABLE, THE PROPOSED TRANSACTION IS WITHIN THE SCOPE OF
SUBPARAGRAPH (A) AND WILL BE CONSISTENT WITH THE PUBLIC INTEREST, IT
SHALL ENTER AN ORDER APPROVING AND AUTHORIZING SUCH TRANSACTION, UPON
THE TERMS AND CONDITIONS, AND WITH THE MODIFICATIONS, SO FOUND TO BE
JUST AND REASONABLE:  PROVIDED, THAT IF A CARRIER BY RAILROAD SUBJECT
TO THIS PART, OR ANY PERSON WHICH IS CONTROLLED BY SUCH A CARRIER, OR
AFFILIATED THEREWITH WITHIN THE MEANING OF PARAGRAPH (6), IS AN
APPLICANT IN THE CASE OF ANY SUCH PROPOSED TRANSACTION INVOLVING A
MOTOR CARRIER, THE COMMISSION SHALL NOT ENTER SUCH AN ORDER UNLESS IT
FINDS THAT THE TRANSACTION PROPOSED WILL BE CONSISTENT WITH THE PUBLIC
INTEREST AND WILL ENABLE SUCH CARRIER TO USE SERVICE BY MOTOR VEHICLE
TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN
COMPETITION."  54 STAT. 906, 49 U.S.C. SEC. 5(2)(B). 

FN3  54 STAT. 916, 49 U.S.C. SEC. 17(11). 

FN4  49 STAT. 550, AS AMENDED, 54 STAT. 922, 49 U.S.C. SEC. 305(H). 

FN5  "1.  THE SERVICE TO BE PERFORMED BY THE ROCK ISLAND TRANSIT
COMPANY SHALL BE LIMITED TO SERVICE WHICH IS AUXILIARY TO, OR
SUPPLEMENTAL OF, TRAIN SERVICE OF THE CHICAGO, ROCK ISLAND AND PACIFIC
RAILWAY COMPANY, HEREINAFTER CALLED THE RAILWAY. 

"2.  THE ROCK ISLAND MOTOR TRANSIT COMPANY SHALL NOT RENDER ANY
SERVICE TO, OR FROM OR INTERCHANGE TRAFFIC AT ANY POINT NOT A STATION
ON A RAIL LINE OF THE RAILWAY. 

"3.  NO SHIPMENTS SHALL BE TRANSPORTED BY THE ROCK ISLAND MOTOR
TRANSIT COMPANY BETWEEN ANY OF THE FOLLOWING POINTS, OR THROUGH, OR TO,
OR FROM, MORE THAN ONE OF SAID POINTS:  OMAHA, NEBR., DES MOINES, IOWA,
AND COLLECTIVELY DAVENPORT AND BETTENDORF AND ROCK ISLAND, MOLINE, AND
EAST MOLINE, ILL. 

"4.  ALL CONTRACTUAL ARRANGEMENTS BETWEEN THE ROCK ISLAND MOTOR
TRANSIT COMPANY AND THE RAILWAY SHALL BE REPORTED TO USE AND SHALL BE
SUBJECT TO REVISION, IF AND AS WE FIND IT TO BE NECESSARY IN ORDER THAT
SUCH ARRANGEMENTS SHALL BE FAIR AND EQUITABLE TO THE PARTIES. 

"5.  SUCH FURTHER SPECIFIC CONDITIONS AS WE, IN THE FUTURE, MAY FIND
IT NECESSARY TO IMPOSE IN ORDER TO INSURE THAT THE SERVICE SHALL BE
AUXILIARY TO, OR SUPPLEMENTAL OF, TRAIN SERVICE."  40 M.C.C. 457, 477. 

FN6  PRIOR TO THIS DATE, TEMPORARY OPERATING AUTHORITY WAS GRANTED
MOTOR TRANSIT OVER THE WHITE LINE AND FREDERICKSON ROUTES WITH THREE
RESTRICTIONS: 

1.  NO SERVICE TO BE PERFORMED FOR SHIPMENTS ORIGINATING AT CHICAGO,
ILL., OR OMAHA, NEBR., AND DESTINED TO EITHER OF SAID POINTS. 

2.  NO SHIPMENT TO BE TRANSPORTED BETWEEN ANY OF THE FOLLOWING POINTS
OR THROUGH, OR TO, OR FROM MORE THAN ONE OF SAID POINTS:  OMAHA, AND
COLLECTIVELY DAVENPORT AND BETTENDORF, IOWA, ROCK ISLAND, MOLINE AND
EAST MOLINE, ILL. 

3.  NO SINGLE SHIPMENT TO BE HANDLED ON MOTOR CARRIER BILLING
WEIGHING MORE THAN 2,000 POUNDS. 

FN7  TWO CONDITIONS WERE IMPOSED:  "(1) THAT THERE MAY BE ATTACHED
FROM TIME TO TIME TO THE PRIVILEGES GRANTED HEREIN SUCH REASONABLE
TERMS, CONDITIONS, AND LIMITATIONS AS THE PUBLIC CONVENIENCE AND
NECESSITY MAY REQUIRE, AND (2) THAT ALL CONTRACTUAL ARRANGEMENTS
BETWEEN MOTOR TRANSIT AND ROCK ISLAND SHALL BE REPORTED TO US AND SHALL
BE SUBJECT TO REVISION, IF AND AS WE FIND IT TO BE NECESSARY IN ORDER
THAT SUCH ARRANGEMENTS SHALL BE FAIR AND EQUITABLE TO THE PARTIES  ...
."  63 M.C.C., AT 109. 

FN8  PA. TRUCK LINES - CONTROL - BARKER, 1 M.C.C. 101, SUPPLEMENTED,
5 M.C.C. 9, 11; SEE, E.G., GULF TRANSPORT CO. - PURCHASE - CRANE, 35
M.C.C. 699; PACIFIC MOTOR TRUCKING CO. - PURCHASE - KEITHLY, 15 M.C.C.
427; TEXAS & P. MOTOR TRANSPORT CO. - PURCHASE - SOUTHERN TRANSP.  CO.,
5 M.C.C. 653. 

FN9  IN CONTRAST TO "TRUCKLOAD TRAFFIC," WHICH REFERS TO STARTING
WITH A FULL LOAD AND DELIVERING AT ONE DESTINATION, THE TERM "PEDDLE
TRAFFIC" REFERS TO STARTING WITH A FULL LOAD AND DELIVERING AT VARIOUS
DESTINATION POINTS, OR THE CONVERSE, PICKING UP PARTS OF A LOAD AT
VARIOUS POINTS AND DELIVERING AT A SINGLE DESTINATION.  BECAUSE MOTOR
TRANSIT IS EXCLUSIVELY LICENSED OVER THE ROUTES IN QUESTION BY THE IOWA
STATE COMMERCE COMMISSION, ALL INTRASTATE TRAFFIC WILL GO TO MOTOR
TRANSIT REGARDLESS OF THE OUTCOME OF THE PRESENT PROCEEDING.  IN
ADDITION, ALL RAIL-BILLED TRAFFIC WILL GO TO MOTOR TRANSIT AS A MATTER
OF COURSE.  THEREFORE, ONLY TWO KINDS OF TRAFFIC ARE ACTUALLY INVOLVED
IN THIS CASE, INTERSTATE TRUCKLOAD AND INTERSTATE PEDDLE TRAFFIC
PROCEEDING ON A MOTOR BILL OF LADING. 

FN10  FOR CASES WHERE RESTRICTIONS HAVE BEEN APPLIED IN SEC. 207
CASES, SEE, E.G., KANSAS CITY S. TRANSPORT CO., COM. CAR.  APPLICATION,
10 M.C.C. 221, 28 M.C.C. 5; CHICAGO, M., ST. P.&P.R. CO. EXTENSION -
MILWAUKEE DIVISION, 53 M.C.C. 341; FRISCO TRANSPORTATION CO. EXTENSION
SPRINGFIELD AIRPORT, 47 M.C.C. 63; GREAT NORTHERN R. CO. EXTENSION -
HOBSON - LEWISTOWN, 19 M.C.C. 745; TEXAS & P. MOTOR TRANSPORT CO.
EXTENSION - BIG SPRING - PECOS, TEX., 14 M.C.C. 649. 

FOR CASES WHERE CERTIFICATES WERE ISSUED UNDER SEC. 207 WITHOUT
RESTRICTIONS, SEE, E.G., BURLINGTON TRUCK LINES EXTENSION - IOWA, 48
M.C.C. 516; ROCK ISLAND MOTOR TRANSIT EXTENSION - WELLMAN, IOWA, 31
M.C.C. 643; BURLINGTON TRANSPORTATION CO. EXTENSION - COUNCIL BLUFFS -
WELDON - KANSAS CITY, 28 M.C.C. 783; SANTA FE TRAIL STAGES, INC., COM.
CAR.  APPLICATION, 21 M.C.C. 725; INTERSTATE TRANSIT LINES EXTENSION -
VERDON, NEB., 10 M.C.C. 665; ST. ANDREWS BAY TRANSPORTATION CO.
EXTENSION, 3 M.C.C. 711. 

IN THE INSTANT CASE THE COMMISSION SUMMARIZED ITS PRACTICE:  "THIS
POLICY OF IMPOSING AUXILIARY AND SUPPLEMENTARY RESTRICTIONS WAS AND IS
SOUND AND SHOULD BE RELAXED ONLY WHERE THE CIRCUMSTANCES CLEARLY
ESTABLISH (1) THAT THE GRANT OF AUTHORITY HAS NOT RESULTED AND PROBABLY
WILL NOT RESULT IN THE UNDUE RESTRAINT OF COMPETITION, AND (2) THAT THE
PUBLIC INTEREST REQUIRES THE PROPOSED OPERATION, WHICH THE AUTHORIZED
INDEPENDENT MOTOR CARRIERS HAVE NOT FURNISHED, EXCEPT WHERE IT SUITED
THEIR CONVENIENCE. 

     *    *         *         *         * 

"THE FINDINGS HEREINAFTER MADE  ...  DO NOT ESTABLISH A PRECEDENT. 
EACH CASE OF THIS CHARACTER MUST BE DETERMINED UPON THE FACTS AND
CIRCUMSTANCES DISCLOSED BY THE EVIDENCE."  63 M.C.C. 91, 102, 108. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :






















MOORE V. MICHIGAN 355 U.S. 155 


NO. 42.  ARGUED OCTOBER 15-16, 1957 - DECIDED DECEMBER 9, 1957 - 344
MICH. 137, 73 N.W.2D 274, REVERSED AND CAUSE REMANDED. 


IN A MICHIGAN STATE COURT IN 1938, PETITIONER, A NEGRO THEN 17 YEARS
OLD AND WITH ONLY A SEVENTH-GRADE EDUCATION, SAID THAT HE DID NOT
DESIRE COUNSEL, PLEADED GUILTY TO MURDER AND WAS SENTENCED TO SOLITARY
CONFINEMENT AT HARD LABOR FOR LIFE WITHOUT POSSIBILITY OF PAROLE, THE
MAXIMUM SENTENCE PERMITTED UNDER MICHIGAN LAW.  IN 1950, HE FILED A
DELAYED MOTION FOR NEW TRIAL, AS PERMITTED BY MICHIGAN LAW, CLAIMING
THAT HIS CONVICTION AND SENTENCE WERE INVALID BECAUSE HE DID NOT HAVE
THE ASSISTANCE OF COUNSEL AT THE TIME OF HIS PLEA AND SENTENCE.  THIS
MOTION WAS DENIED BY THE TRIAL COURT AND THE STATE SUPREME COURT
AFFIRMED.  IT APPEARED FROM THE RECORD THAT, AT THE TIME OF HIS TRIAL,
PETITIONER HAD SEVERAL POSSIBLE DEFENSES INVOLVING QUESTIONS OF
CONSIDERABLE TECHNICAL DIFFICULTY OBVIOUSLY BEYOND HIS CAPACITY TO
UNDERSTAND AND THAT HIS WAIVER OF COUNSEL AND PLEA OF GUILTY MAY HAVE
BEEN INDUCED BY FEAR OF MOB VIOLENCE RESULTING FROM STATEMENTS MADE TO
HIM BY THE SHERIFF.  HELD:  ON THE RECORD IN THIS CASE, PETITIONER HAD
SUSTAINED HIS ULTIMATE BURDEN OF PROVING THAT HIS PLEA OF GUILTY WAS
INVALIDLY ACCEPTED WITHOUT BENEFIT OF COUNSEL AND THAT HE DID NOT
VALIDLY WAIVE HIS RIGHT TO COUNSEL; AND THE JUDGMENT IS REVERSED AND
THE CAUSE REMANDED FOR FURTHER PROCEEDINGS.  PP. 156-165. 

(A)  PETITIONER'S CASE FALLS WITHIN THAT CLASS IN WHICH THE
INTERVENTION OF COUNSEL, UNLESS INTELLIGENTLY WAIVED, IS AN ESSENTIAL
ELEMENT OF A FAIR HEARING.  P. 159. 

(B)  THE CIRCUMSTANCES COMPEL THE CONCLUSION THAT PETITIONER'S RIGHTS
COULD NOT HAVE BEEN FAIRLY PROTECTED WITHOUT THE ASSISTANCE OF
COUNSEL.  PP. 159-160. 

(C)  WHERE A PERSON CONVICTED IN A STATE COURT HAS NOT INTELLIGENTLY
AND UNDERSTANDINGLY WAIVED THE BENEFIT OF COUNSEL AND WHERE THE
CIRCUMSTANCES SHOW THAT HIS RIGHTS COULD NOT HAVE BEEN FAIRLY PROTECTED
WITHOUT COUNSEL, THE DUE PROCESS CLAUSE INVALIDATES HIS CONVICTION. 
PP. 160-161. 

(D)  WHERE THE RIGHT TO COUNSEL IS OF SUCH CRITICAL IMPORTANCE AS TO
BE AN ELEMENT OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT, A FINDING
OF WAIVER IS NOT LIGHTLY TO BE MADE.  P. 161. 

(E)  IN THIS CASE, PETITIONER HAD THE BURDEN OF SHOWING, BY A
PREPONDERANCE OF THE EVIDENCE, THAT HE DID NOT INTELLIGENTLY AND
UNDERSTANDINGLY WAIVE HIS RIGHT TO COUNSEL.  PP. 161-162. 

(F)  THE FEAR OF MOB VIOLENCE PLANTED BY THE SHERIFF IN PETITIONER'S
MIND RAISES THE INFERENCE THAT HIS REFUSAL OF COUNSEL WAS MOTIVATED BY
A DESIRE TO BE REMOVED FROM THE LOCAL JAIL AT THE EARLIEST POSSIBLE
MOMENT; THIS IS CONSISTENT WITH THE TRIAL JUDGE'S REPORT OF HIS
INTERVIEW WITH PETITIONER; AND REJECTION OF FEDERAL CONSTITUTIONAL
RIGHTS MOTIVATED BY FEAR CANNOT, IN THE CIRCUMSTANCES OF THIS CASE,
CONSTITUTE AN INTELLIGENT WAIVER OF COUNSEL.  PP. 162-165. 

MOORE V. MICHIGAN. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

ON OCTOBER 29, 1938, THE CIRCUIT COURT OF KALAMAZOO COUNTY, MICHIGAN,
ACCEPTED THE PETITIONER'S PLEA OF GUILTY TO AN INFORMATION CHARGING HIM
WITH THE MURDER OF AN ELDERLY WHITE LADY.  HE WAS SENTENCED TO SOLITARY
CONFINEMENT AT HARD LABOR FOR LIFE IN MICHIGAN'S JACKSON PRISON, WHERE
HE HAS SINCE BEEN CONFINED.  (FN1)  PETITIONER, A NEGRO, WITH A SEVENTH
GRADE EDUCATION, WAS 17 YEARS OLD AT THE TIME.  ON MAY 26, 1950, HE
FILED A DELAYED MOTION FOR A NEW TRIAL IN THE CIRCUIT COURT.  HE
ASSERTED CONSTITUTIONAL INVALIDITY IN HIS CONVICTION AND SENTENCE
BECAUSE HE DID NOT HAVE THE ASSISTANCE OF COUNSEL AT THE TIME OF HIS
PLEA AND SENTENCE.  THE CIRCUIT COURT, AFTER HEARING, DENIED THE
MOTION, AND THE SUPREME COURT OF MICHIGAN AFFIRMED.  (FN2) WE GRANTED
CERTIORARI TO DECIDE THE IMPORTANT QUESTION RAISED INVOLVING A PLEA OF
GUILTY TO A CHARGE OF MURDER WHERE THE ACCUSED WAS WITHOUT THE BENEFIT
OF COUNSEL.  (FN3) 

THE PETITIONER WAS ARRESTED DURING THE AFTERNOON OF OCTOBER 26, 1938,
A FEW HOURS AFTER THE MURDER WAS COMMITTED.  HE WAS CONFINED IN A
KALAMAZOO JAIL AND WAS QUESTIONED BY LOCAL LAW AUTHORITIES FROM TIME TO
TIME UNTIL THE AFTERNOON OF OCTOBER 28, WHEN HE ORALLY CONFESSED TO THE
CRIME.  (FN4)  ON SATURDAY MORNING, OCTOBER 29, 1938, HE WAS ARRAIGNED
IN THE CIRCUIT COURT WHERE HE PLEADED GUILTY, WAS ADJUDGED GUILTY OF
MURDER IN THE FIRST DEGREE, AND, AFTER SENTENCE, WAS TRANSFERRED FROM
THE KALAMAZOO JAIL TO THE JACKSON PRISON. 

IN ACCORDANCE WITH THE THEN PREVAILING PROCEDURE NO STENOGRAPHIC
TRANSCRIPT WAS TAKEN OF THE PROCEEDINGS IN THE CIRCUIT COURT AT THE
TIME OF THE ARRAIGNMENT AND PLEA.  HOWEVER, AT THE HEARING HELD ON THE
DELAYED MOTION FOR A NEW TRIAL, TWO WITNESSES, WHO WERE PRESENT IN THE
COURTROOM ON OCTOBER 29, 1938, TESTIFIED AS TO WHAT THEN TRANSPIRED. 
ON THE BASIS OF THEIR TESTIMONY THE CIRCUIT COURT IN DENYING THE MOTION
FOR NEW TRIAL FOUND AS A FACT - WHICH FINDING IS, OF COURSE, ACCEPTED
BY US - THAT BEFORE THE PETITIONER TENDERED THE PLEA OF GUILTY THE
TRIAL JUDGE ASKED THE PETITIONER "WHETHER HE HAD A LAWYER AND WHETHER
HE DESIRED TO HAVE A LAWYER, AND THAT THE PETITIONER GAVE A NEGATIVE
REPLY TO BOTH OF THESE INQUIRIES, AND STATED THAT HE WANTED TO GET THE
MATTER OVER WITH." 

THE RECORD FURTHER DISCLOSES THAT AT THE ARRAIGNMENT THE TRIAL JUDGE,
ACTING IN CONFORMITY WITH MICHIGAN PROCEDURE, WHICH REQUIRED HIM TO
CONDUCT AN INVESTIGATION INTO THE VOLUNTARINESS OF ANY PLEA OF GUILTY,
(FN5) CONFERRED PRIVATELY WITH PETITIONER FOR "SOME FIVE TO TEN
MINUTES" IN CHAMBERS.  UPON THE RETURN OF THE JUDGE AND PETITIONER TO
THE COURTROOM, THE JUDGE STATED THAT THE PLEA WOULD BE ACCEPTED AND
PROCEEDED TO CONDUCT THE HEARING REQUIRED BY MICHIGAN LAW (FN6) TO
DETERMINE THE DEGREE OF THE OFFENSE OF MURDER.  AT THIS HEARING SEVERAL
WITNESSES TESTIFIED TO THE DETAILS OF THE CRIME.  THE PETITIONER TOOK
NO PART IN THE EXAMINATION OF THESE WITNESSES NOR DID HE TESTIFY.  AT
THE CONCLUSION OF THE TESTIMONY, THE TRIAL JUDGE PRONOUNCED JUDGMENT
THAT THE PETITIONER WAS GUILTY OF MURDER IN THE FIRST DEGREE, AND
IMPOSED SENTENCE. 

THE JUDGE MADE A STATEMENT, STENOGRAPHICALLY TRANSCRIBED, THAT, OVER
THE PREVIOUS THREE YEARS, THE PETITIONER HAD "BEEN IN TROUBLE FOUR OR
FIVE TIMES, CONSISTING OF BREAKING AND ENTERING AND UNLAWFUL TAKING OF
AUTOMOBILES" AND HAD BEEN HANDLED AS A JUVENILE OFFENDER ON SUCH
OCCASIONS.  HE ALSO STATED THAT THE PETITIONER HAD "DISCUSSED THE WHOLE
AFFAIR (THE MURDER) VERY FREELY WITH ME IN ALL ITS REVOLTING DETAILS"
AND THAT "IN MY PRIVATE INTERVIEW WITH RESPONDENT, I ASSURED HIM THAT
HE MUST NOT PLEAD GUILTY UNLESS HE REALLY IS GUILTY; THAT HE WAS NOT
REQUIRED TO PLEAD GUILTY; THAT HE COULD HAVE A TRIAL BY JURY IF HE
DESIRED IT.  HE ASSURED ME FREELY AND VOLUNTARILY THAT HE IS GUILTY AND
THAT HIS ONE DESIRE IS TO HAVE IT ALL OVER, TO GET TO THE INSTITUTION
TO WHICH HE IS TO BE COMMITTED, AND TO BE UNDER OBSERVATION AND TO BE
EXAMINED  ...  ."  THE JUDGE AT THIS POINT RECITED THE DETAILS OF THE
CRIME AS TOLD TO HIM BY THE PETITIONER AND THEN STATED:  "SUCH IS HIS
STORY TO ME IN PRIVATE, TOLD VERY CALMLY; WITHOUT ANY COMPULSION
WHATEVER.  HE INSISTS THAT THERE IS SOMETHING WRONG WITH HIS HEAD; THAT
HE HAS HAD SOMETHING AKIN TO QUEER SENSATIONS BEFORE THIS." 

WE MAY REASONABLY INFER FROM THE RECORD THAT NEITHER THE TRIAL JUDGE
NOR THE MICHIGAN COURTS WHICH CONSIDERED THE DELAYED MOTION THOUGHT
THAT THE PETITIONER'S PLIGHT REQUIRED THE ASSISTANCE OF COUNSEL TO
SATISFY THE REQUISITES OF THE FAIR HEARING SECURED BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT IN A STATE PROSECUTION.  THE
PRINCIPLES DETERMINING THE EXTENT TO WHICH THIS CONSTITUTIONAL RIGHT TO
COUNSEL IS SECURED IN A STATE PROSECUTION HAVE BEEN DISCUSSED IN A LONG
SERIES OF DECISIONS OF THIS COURT.  (FN7)  WE HOLD THAT THE
PETITIONER'S CASE FALLS WITHIN THAT CLASS IN WHICH THE INTERVENTION OF
COUNSEL, UNLESS INTELLIGENTLY WAIVED BY THE ACCUSED, IS AN ESSENTIAL
ELEMENT OF A FAIR HEARING. 

THE PETITIONER WAS 17 YEARS OF AGE AND HAD A SEVENTH-GRADE
EDUCATION.  CF. DE MEERLEER V. MICHIGAN, 329 U.S. 663; WADE V. MAYO,
334 U.S. 672; WILLIAMS V. HUFF, 79 U.S. APP. D.C.  326, 146 F.2D 867. 
HE WAS CHARGED WITH A CRIME CARRYING MICHIGAN'S MAXIMUM PENALTY, VIZ.,
SOLITARY CONFINEMENT AT HARD LABOR FOR LIFE WITHOUT POSSIBILITY OF
PAROLE.  MICH. STAT.  ANN., 1954, SECS. 28.548, 28.2304.  CF. POWELL V.
ALABAMA, 287 U.S. 45.  THE RECORD SHOWS POSSIBLE DEFENSES WHICH MIGHT
REASONABLY HAVE BEEN ASSERTED AT TRIAL, BUT THE EXTENT OF THEIR
AVAILABILITY RAISED QUESTIONS OF CONSIDERABLE TECHNICAL DIFFICULTY
OBVIOUSLY BEYOND HIS CAPACITY TO COMPREHEND.  FOR INSTANCE, ONE
POSSIBLE DEFENSE WAS INSANITY, SUGGESTED BY THE TRIAL JUDGE'S
STATEMENTS THAT "HIS ONE DESIRE IS TO HAVE IT ALL OVER, TO GET TO THE
INSTITUTION TO WHICH HE IS TO BE COMMITTED, AND TO BE UNDER OBSERVATION
AND TO BE EXAMINED  ...  "; "HE INSISTS THAT THERE IS SOMETHING WRONG
WITH HIS HEAD; THAT HE HAS HAD SOMETHING AKIN TO QUEER SENSATIONS
BEFORE THIS."  ANOTHER POSSIBLE DEFENSE WAS MISTAKEN IDENTITY,
SUGGESTED BY THE FACT THAT THE EVIDENCE POINTING TO HIM AS THE
PERPETRATOR OF A CRIME WAS ENTIRELY CIRCUMSTANTIAL.  CF. PENNSYLVANIA
EX REL. HERMAN V. CLAUDY, 350 U.S. 116; RICE V. OLSON, 324 U.S. 786. 
MOREOVER, THE PROCEEDINGS TO DETERMINE THE DEGREE OF MURDER, THE
OUTCOME OF WHICH DETERMINED THE EXTENT OF PUNISHMENT, INTRODUCED THEIR
OWN COMPLEXITIES.  WITH THE AID OF COUNSEL, THE PETITIONER, WHO, AS WE
HAVE SAID, NEITHER TESTIFIED HIMSELF IN THE PROCEEDING NOR CROSS
EXAMINED THE PROSECUTION'S WITNESSES, MIGHT HAVE DONE MUCH TO ESTABLISH
A LESSER DEGREE OF THE SUBSTANTIVE CRIME, OR TO ESTABLISH FACTS AND
MAKE ARGUMENTS WHICH WOULD HAVE MITIGATED THE SENTENCE.  THE RIGHT TO
COUNSEL IS NOT A RIGHT CONFINED TO REPRESENTATION DURING THE TRIAL ON
THE MERITS.  REECE V. GEORGIA, 350 U.S. 85.  THE CIRCUMSTANCES COMPEL
THE CONCLUSION THAT THE PETITIONER'S RIGHTS COULD NOT HAVE BEEN FAIRLY
PROTECTED WITHOUT THE ASSISTANCE OF COUNSEL TO HELP HIM WITH HIS
DEFENSE. 

HOWEVER, WE MAY ALSO INFER FROM THE RECORD THAT THE MICHIGAN COURTS
HELD THAT EVEN IF PETITIONER WAS CONSTITUTIONALLY ENTITLED TO THE
ASSISTANCE OF COUNSEL HE WAIVED THIS RIGHT WHEN HE TOLD THE TRIAL JUDGE
THAT "HE DIDN'T WANT ONE, DIDN'T HAVE ONE, HE WANTED TO GET IT OVER
WITH."  THE CONSTITUTIONAL RIGHT, OF COURSE, DOES NOT JUSTIFY FORCING
COUNSEL UPON AN ACCUSED WHO WANTS NONE.  SEE CARTER V. ILLINOIS, 329
U.S. 173, 174.  BUT, "WHERE A PERSON CONVICTED IN A STATE COURT HAS NOT
INTELLIGENTLY AND UNDERSTANDINGLY WAIVED THE BENEFIT OF COUNSEL AND
WHERE THE CIRCUMSTANCES SHOW THAT HIS RIGHTS COULD NOT HAVE BEEN FAIRLY
PROTECTED WITHOUT COUNSEL, THE DUE PROCESS CLAUSE INVALIDATES HIS
CONVICTION  ...  ."  PENNSYLVANIA EX REL. HERMAN V. CLAUDY, 350 U.S.
116, 118.  WHERE THE RIGHT TO COUNSEL IS OF SUCH CRITICAL IMPORTANCE TO
BE AN ELEMENT OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT, A FINDING
OF WAIVER IS NOT LIGHTLY TO BE MADE.  CF. JOHNSON V. ZERBST, 304 U.S.
458, 464; GLASSER V. UNITED STATES, 315 U.S. 60, 70; VON MOLTKE V.
GILLIES, 332 U.S. 708, 723. 

THIS COURT HELD IN JOHNSON V. ZERBST, SUPRA, THAT WHEN A JUDGMENT OF
CONVICTION ENTERED IN A FEDERAL COURT IS COLLATERALLY ATTACKED UPON THE
GROUND THAT THE DEFENDANT DID NOT HAVE THE BENEFIT OF COUNSEL, HE HAS
THE BURDEN OF SHOWING, BY A PREPONDERANCE OF THE EVIDENCE, THAT HE DID
NOT HAVE COUNSEL AND DID NOT COMPETENTLY AND INTELLIGENTLY WAIVE HIS
CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF COUNSEL.  WE HAVE FOUND THAT
THE PETITIONER WAS ENTITLED TO THE BENEFIT OF COUNSEL TO SECURE THE
FAIR HEARING GUARANTEED TO HIM BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  WHATEVER MAY BE THE DIFFERENCES IN THE
SUBSTANTIVE RIGHT TO COUNSEL IN FEDERAL AND STATE CASES, WHEN THE
DEFENDANT IN A STATE CASE HAS ESTABLISHED HIS CONSTITUTIONAL RIGHT TO
THE BENEFIT OF COUNSEL, HE SHOULD CARRY THE SAME BURDEN OF PROVING
NONWAIVER AS IS REQUIRED OF THE DEFENDANT IN A FEDERAL CASE.   WE
THEREFORE HOLD THAT THE RULE OF JOHNSON V. ZERBST APPLIES IN THIS CASE
AND THAT THE PETITIONER HAD THE BURDEN OF SHOWING, BY A PREPONDERANCE
OF THE EVIDENCE, THAT HE DID NOT INTELLIGENTLY AND UNDERSTANDINGLY
WAIVE HIS RIGHT TO COUNSEL. 

NOTWITHSTANDING THE PETITIONER'S EXPRESS DISAVOWAL, BEFORE HIS PLEA,
OF A DESIRE FOR COUNSEL, THE PETITIONER DEVELOPED EVIDENCE AT THE
HEARING ON THE DELAYED MOTION WHICH SUSTAINED HIS BURDEN OF SHOWING
THAT THE DISAVOWAL WAS NOT INTELLIGENTLY AND UNDERSTANDINGLY MADE AND
HENCE WAS NOT A WAIVER.  WILLIAMS V. HUFF, 79 U.S. APP. D.C. 326, 146
F.2D 867.  THIS CRUCIAL EVIDENCE, APPARENTLY NOT KNOWN TO THE TRIAL
JUDGE, WAS BROUGHT OUT ON THE CROSS-EXAMINATION OF THE SHERIFF OF
KALAMAZOO COUNTY AT THE HEARING ON THE DELAYED MOTION, AND CONCERNED
CONVERSATIONS BETWEEN THE SHERIFF AND THE PETITIONER BEFORE THE
PETITIONER ORALLY CONFESSED ON THE AFTERNOON OF OCTOBER 28, 1938: 

"Q.  YOU DIDN'T ADVISE HIM IT WOULD PROBABLY BE THE BEST TO PLEAD
GUILTY? 

"A.  WELL, THE ONLY WAY I COULD ANSWER THAT RIGHT IS JUST TO GIVE YOU
A LITTLE OF THE CONVERSATION THERE, PERHAPS, IF YOU WISH ME TO. 

"Q.  RELATE THAT, THAT WILL PROBABLY BE HELPFUL. 

"A.  IN TALKING WITH WILLIE MOORE - THAT WAS BEFORE HE HAD MADE ANY
STATEMENT - I TOLD HIM THAT IF HE WAS GUILTY OF IT HE MIGHT BETTER OWN
UP ON IT BECAUSE I SAYS THERE COULD BE TROUBLE.  TENSION IS VERY HIGH
OUTSIDE AND THERE COULD BE TROUBLE.  IF YOU ARE NOT GUILTY OF IT, WHY
THEN, I SAYS, I WOULD STAND PAT FOREVER AFTER.  THEN I TOLD - I SPOKE
TO HIM ABOUT WHAT WOULD BE REQUIRED OF HIM AND I WOULD HAVE TO TAKE HIM
TO THE MUNICIPAL COURT FOR HIS ARRAIGNMENT IN THE LOWER COURT AND THEN
BACK OVER THERE, AND I TOLD HIM HE WOULD BE ENTITLED TO A HEARING IN
LOWER COURT AND I SAYS, 'THERE YOU WILL HAVE THE JUDGE READ TO YOU AND
YOU CAN WAIVE OR DEMAND AN EXAMINATION.  YOU ARE ENTITLED TO AN
EXAMINATION OVER THERE.  IT IS MY DUTY, AND IT IS UP TO ME, TO PROTECT
YOU, TO USE EVERY EFFORT AT MY COMMAND TO PROTECT YOU,' BUT, I SAYS,
'THE TENSION IS HIGH OUT THERE AND I AM JUST TELLING YOU WHAT COULD
HAPPEN IF IT WAS STARTED BY SOMEONE.'  I DON'T KNOW THE LANGUAGE I
USED. 

     *         *         *         *    * 

"Q.  DID YOU ALSO TELL HIM IF HE PLEAD GUILTY HE WOULD BE SENT TO
JACKSON IMMEDIATELY?  DO YOU REMEMBER SAYING ANYTHING LIKE THAT? 

"A.  I DON'T KNOW AS I COME OUT AND SAID AT ANY TIME FOR HIM TO PLEAD
ONE WAY OR THE OTHER, BUT WHAT I WAS PUTTING OVER TO HIM WAS THE FACT
THAT IF YOU ARE GUILTY AND WILL BE SENT AWAY YOU MIGHT BETTER BE
GETTING AWAY BEFORE TROUBLE BECAUSE I HAD HAD THE INFORMATION THERE WAS
CERTAIN COLORED FELLOWS, A GROUP OF THEM, THAT WAS GOING TO INTERFERE
WITH ME, AND ALSO THAT THERE WAS A BUNCH OF HOLLAND FELLOWS GOING TO
MEET ME WHEN I GO TO JACKSON, THEY WOULD MEET ME THERE AT GALESBURG
THERE, AND, THEREFORE, WHEN HE WAS SENTENCED I AVOIDED THE MAIN ROUTE
AND WENT WAY THROUGH BY GULL LAKE AND ACROSS OVER IN THE HILLS THERE." 

ALTHOUGH THE TRIAL JUDGE REJECTED THE PETITIONER'S TESTIMONY AS NOT
WORTHY OF BELIEF, IN THIS INSTANCE THE SHERIFF CORROBORATED THE
PETITIONER'S TESTIMONY, GIVEN BEFORE THE SHERIFF TOOK THE STAND, THAT
THE SHERIFF HAD TOLD HIM "THAT IF I DIDN'T PLEAD GUILTY TO THIS CRIME,
THEY COULDN'T PROTECT ME, UNDER THOSE CONDITIONS, THEY SAYS, DURING THE
RIOT, THAT THEY DIDN'T KNOW WHAT PEOPLE THEY WOULD DO, AND THAT THEY
COULDN'T PROTECT ME."  PETITIONER FURTHER TESTIFIED THAT HE PLEADED
GUILTY BECAUSE OF THAT STATEMENT OF THE SHERIFF:  "AFTER THE MAN TELL
ME HE COULDN'T PROTECT ME THEN THERE WASN'T NOTHING I COULD DO.  I WAS
MOSTLY SCARED THAN ANYTHING ELSE." 

THE CIRCUIT COURT FOUND THE SHERIFF'S TESTIMONY INSIGNIFICANT BECAUSE
OTHER EVIDENCE SHOWED THAT THERE WAS IN FACT "NO THREAT OF MOB
VIOLENCE, NO CONGREGATION OF ANYTHING THAT COULD BY ANY STRETCH OF
REASONING BE CONSIDERED A MOB OR A RIOTOUS GATHERING, AND THAT WHILE
THE SHERIFF FELT INCLINED TO TAKE CERTAIN PRECAUTIONS AND DID TAKE
CERTAIN PRECAUTIONS TO AVOID ANY TROUBLE, THERE WAS NOTHING IN THE
SITUATION THEN EXISTING TO INDICATE THAT THE RESPONDENT HAD BEEN
COERCED INTO A FALSE PLEA, OR THAT HE HAD BEEN PLACED IN FEAR OF
INSISTING UPON HIS CONSTITUTIONAL RIGHTS."  BUT PLAINLY IT IS OF NO
MOMENT TO THE INQUIRY THAT THE SITUATION DESCRIBED TO THE PETITIONER BY
THE SHERIFF DID NOT EXIST.  THE PETITIONER SAW ONLY LAW OFFICERS WHILE
BEING HELD CONTINUOUSLY IN CLOSE CONFINEMENT FROM A TIME JUST HOURS
AFTER THE MURDER UNTIL HE ORALLY CONFESSED, AND WAS HARDLY IN A
POSITION TO KNOW OR TEST THE ACCURACY OF WHAT THE SHERIFF TOLD HIM. 
THE SHERIFF'S STATEMENT MUST BE EVALUATED FOR ITS EFFECT UPON THE
CAPACITY OF THIS 17-YEAR-OLD NEGRO YOUTH OF LIMITED EDUCATION AND
MENTAL CAPACITY TO MAKE AN INTELLIGENT, UNDERSTANDING WAIVER OF
CONSTITUTIONAL RIGHTS OF SUPREME IMPORTANCE TO HIM IN HIS SITUATION. 

WE BELIEVE THAT THE EXPECTATION OF MOB VIOLENCE, PLANTED BY THE
SHERIFF IN THE MIND OF THIS THEN 17-YEAR-OLD NEGRO YOUTH, RAISES AN
INFERENCE OF FACT THAT HIS REFUSAL OF COUNSEL WAS MOTIVATED TO A
SIGNIFICANT EXTENT BY THE DESIRE TO BE REMOVED FROM THE KALAMAZOO JAIL
AT THE EARLIEST POSSIBLE MOMENT.  THE TRIAL JUDGE'S REPORT OF HIS
INTERVIEW WITH THE PETITIONER IS CONSISTENT WITH THIS INFERENCE IN THAT
THE REPORT STATES THAT THE PETITIONER TOLD THE JUDGE THAT "HIS ONE
DESIRE IS TO HAVE IT ALL OVER, TO GET TO THE INSTITUTION TO WHICH HE IS
TO BE COMMITTED, AND TO BE UNDER OBSERVATION TO BE EXAMINED."  A
REJECTION OF FEDERAL CONSTITUTIONAL RIGHTS MOTIVATED BY FEAR CANNOT, IN
THE CIRCUMSTANCES OF THIS CASE, CONSTITUTE AN INTELLIGENT WAIVER.  THIS
CONCLUSION AGAINST AN INTELLIGENT WAIVER IS FORTIFIED BY THE INFERENCES
WHICH MAY BE DRAWN FROM THE AGE OF PETITIONER, WILLIAMS V. HUFF, 79
U.S. APP. D.C. 326, 146 F.2D 867, AND THE EVIDENCE OF EMOTIONAL
DISTURBANCE, HALLOWELL V. UNITED STATES, 197 F.2D 926. 

WE THUS CONCLUDE THAT THE PETITIONER HAD SUSTAINED HIS ULTIMATE
BURDEN OF PROVING THAT HIS PLEA OF GUILTY WAS INVALIDLY ACCEPTED AS
OBTAINED WITHOUT THE BENEFIT OF COUNSEL AND THAT HE DID NOT WAIVE HIS
RIGHT TO COUNSEL. 

THE JUDGMENT IS REVERSED, AND THE CAUSE IS REMANDED FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  MICHIGAN LONG AGO ABOLISHED CAPITAL PUNISHMENT.  THE SENTENCE IS
THE MAXIMUM SENTENCE FOR MURDER.  MICH. STAT. ANN., HENDERSON 1938,
SEC. 28.548.  SEE QUICKSALL V. MICHIGAN, 339 U.S. 660, 664. 

FN2  PEOPLE V. MOORE, 344 MICH. 137, 73 N.W.2D 274.  THE MAJORITY
OPINION RELIED UPON QUICKSALL V. MICHIGAN, 339 U.S. 660; THE DISSENTING
OPINION UPON DE MEERLEER V. MICHIGAN, 329 U.S. 663. 

FN3  352 U.S. 907. 

FN4  DEFENDANT WAS QUESTIONED ON THE NIGHT OF HIS ARREST UNTIL
APPROXIMATELY 2 OR 3 O'CLOCK IN THE MORNING OF THE FOLLOWING DAY.  ON
OCTOBER 27, 1938, HE WAS QUESTIONED FROM APPROXIMATELY 8 A.M. UNTIL 10
OR 11 P.M.  ON OCTOBER 28, 1938, HE WAS QUESTIONED FROM APPROXIMATELY 8
A.M. UNTIL NOON AND AGAIN IN THE AFTERNOON WHEN HE ORALLY CONFESSED. 
HE WAS THEN TAKEN BEFORE A MUNICIPAL COURT JUSTICE WHERE HE WAIVED
EXAMINATION AND WAS BOUND OVER TO CIRCUIT COURT FOR TRIAL. 

FN5  MICH. STAT. ANN., 1954, SEC. 28.1058.  FOR PRESENT PRACTICE SEE
MICH. ACTS 1957, NO. 256; MICH. COURT RULE 35-A, ADOPTED JUNE 4, 1947,
EFFECTIVE SEPTEMBER 1, 1947. 

FN6  MICH. STAT. ANN., 1954, SEC. 28.550. 

FN7  POWELL V. ALABAMA, 287 U.S. 45; SMITH V. O'GRADY, 312 U.S. 329;
BETTS V. BRADY, 316 U.S. 455; WILLIAMS V. KAISER, 323 U.S. 471; TOMKINS
V. MISSOURI, 323 U.S. 485; HOUSE V. MAYO, 324 U.S. 42; RICE V. OLSON,
324 U.S. 786; HAWK V. OLSON, 326 U.S. 271; CANIZIO V. NEW YORK, 327
U.S. 82; CARTER V. ILLINOIS, 329 U.S. 173; DE MEERLEER V. MICHIGAN, 329
U.S. 663; FOSTER V. ILLINOIS, 332 U.S. 561; BUTE V. ILLINOIS, 333 U.S.
640; WADE V. MAYO, 334 U.S. 672; GRYGER V. BURKE, 334 U.S. 728;
TOWNSEND V. BURKE, 334 U.S. 736; UVEGES V. PENNSYLVANIA, 335 U.S. 437;
GIBBS V. BURKE, 337 U.S. 773; QUICKSALL V. MICHIGAN, 339 U.S. 660;
PALMER V. ASHE, 342 U.S. 134; CHANDLER V. FRETAG, 348 U.S. 3; MASSEY V.
MOORE, 348 U.S. 105; PENNSYLVANIA EX REL. HERMAN V. CLAUDY, 350 U.S.
116. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
CLARK AND MR. JUSTICE HARLAN CONCUR, DISSENTING. 

THE COURT'S DECISION RESTS UPON ITS VIEW THAT, DESPITE THE CONTRARY
CONCLUSIONS OF THE CIRCUIT AND SUPREME COURTS OF MICHIGAN, PETITIONER
HAS SHOWN THAT HE WAS IN FACT SO ALARMED THAT HE WAS NOT ABLE FREELY,
INTELLIGENTLY AND UNDERSTANDINGLY TO PLEAD GUILTY AND TO WAIVE HIS
RIGHT TO COUNSEL.  BUT FOR THAT ISSUE, THIS CASE SHOULD BE SUMMARILY
AFFIRMED ON THE AUTHORITY OF QUICKSALL V. MICHIGAN, 339 U.S. 660, WHICH
DEALT WITH A COMPARABLE SITUATION THAT AROSE BEFORE THE SAME TRIAL
JUDGE UNDER LIKE PROCEDURE. 

THE ONLY CONTEMPORANEOUS EVIDENCE AS TO PETITIONER'S ATTITUDE AND
EQUANIMITY AT THE TIME OF HIS TRIAL, IN 1938, IS THE STATEMENT WHICH
CIRCUIT JUDGE WEIMER MADE WHILE PRESIDING AT THE TRIAL.  HE MADE IT
FOLLOWING HIS PRIVATE INTERVIEW WITH PETITIONER, AND IMMEDIATELY
PRECEDING HIS ACCEPTANCE OF PETITIONER'S PLEA OF GUILTY.  HE PORTRAYED
PETITIONER AS HAVING, IN THAT INTERVIEW, "VERY CALMLY; WITHOUT ANY
COMPULSION WHATEVER" "FREELY AND VOLUNTARILY" DISCUSSED HIS CRIME, HIS
GUILT AND "HIS ONE DESIRE  ...  TO HAVE IT ALL OVER  ...  ."  WHEN
MAKING THIS STATEMENT THE JUDGE'S ATTENTION WAS FOCUSED DIRECTLY UPON
HIS RESPONSIBILITY TO DETERMINE THE CAPACITY OF PETITIONER TO PLEAD
GUILTY AND TO WAIVE HIS CONSTITUTIONAL PRIVILEGES.  THE STATEMENT
ACCORDINGLY COMMANDS RESPECT AND IS ENTITLED TO GREAT WEIGHT. 

BY 1950, JUDGE WEIMER HAD DIED AND THE PROSECUTING ATTORNEY, WHO HAD
CONDUCTED THE TRIAL FOR THE STATE, HAD SUFFERED A STROKE RENDERING HIM
INCAPABLE OF TESTIFYING.  HOWEVER, TWO WITNESSES DID TESTIFY, IN 1950,
AS TO THEIR RECOLLECTION OF PETITIONER'S DEMEANOR IN 1938. 

ONE WAS THE CHIEF DEPUTY SHERIFF, WHO, IN 1938, AS A DEPUTY SHERIFF,
HAD BEEN IN CHARGE OF TAKING PETITIONER TO AND FROM THE COURTROOM AND
TO THE LOBBY WHEN PETITIONER WAS LEAVING FOR THE PENITENTIARY.  HIS
TESTIMONY INCLUDED THE FOLLOWING: 

"Q.  WHAT DID YOU NOTICE, IF ANYTHING, ABOUT HIS APPEARANCE THAT
WOULD HAVE ANYTHING TO DO WITH THE QUESTION WHETHER OR NOT HE APPEARED
TO BE IN FEAR OR RELAXED OR WHAT? 

"A.  HE WAS VERY RELAXED.  THERE WAS NO SIGN OF FEAR AND NO SHOWING,
EITHER PHYSICALLY OR BY SPEECH. 

"Q.  ANYTHING THAT WOULD LEAD YOU TO THAT CONCLUSION? 

"A.  TO NOT BEING IN FEAR? 

"Q.  YES. 

"A.  HE WAS NONCHALANT  ...  ." 

THE OTHER WITNESS WAS A CIRCUIT JUDGE, WHO, IN 1938, HAD
PARTICIPATED, AS AN ASSISTANT PROSECUTOR, IN THE INTERROGATION OF
PETITIONER WHEN THE LATTER CONFESSED HIS CRIME.  THIS WITNESS
TESTIFIED: 

"  ...  I, OF COURSE, FELT THAT HIS ANSWERS WERE FAIR - WERE HONEST
AND CANDID IN HIS FINAL STATEMENT THAT HE MADE.  THAT IS JUST MY
OPINION, BUT HE ANSWERED THE QUESTIONS THAT WERE PUT TO HIM.  TO ME HE
SEEMED VERY CALM AND NOT EXCITED IN THE LEAST.  HE SPOKE ABOUT IT QUITE
IN A MATTER OF FACT WAY.  HIS WHOLE ATTITUDE WAS SUCH THAT IT WAS HARD
FOR ME TO UNDERSTAND HIS LACK OF EMOTION IN TELLING THE STORY OF JUST
WHAT HAPPENED OR WHAT HE CLAIMED HAPPENED, WHAT HE DID AND WHAT SHE
DID." 

AS AGAINST THIS, PETITIONER OFFERED HIS OWN STATEMENT, QUOTED BY THE
COURT, ANTE, P. 163.  JUDGE SWEET, WHO PRESIDED IN 1950, GAVE LITTLE
CREDENCE TO IT AND SAID IN HIS OPINION: 

"WHILE THIS COURT HAS NOT DISREGARDED THE TESTIMONY OF THE
PETITIONER, BUT ON THE CONTRARY HAS CAREFULLY CONSIDERED IT, IT IS THE
CONCLUSION OF THIS COURT THAT THE PETITIONER'S TESTIMONY IS NOT WORTHY
OF BELIEF.  THIS CONCLUSION IS ARRIVED AT BECAUSE OF THE MANNER OF THE
WITNESS WHILE TESTIFYING, HIS INTEREST IN THE OUTCOME OF THESE
PROCEEDINGS, AND THE MANY POINTS OF CONFLICT BETWEEN HIS TESTIMONY AND
THE TESTIMONY OF THE TWO WITNESSES HEREIN REFERRED TO."* 

*THE FOLLOWING ARE EXAMPLES OF THE CONFLICTS PRESENTED BY
PETITIONER'S TESTIMONY: 

HE TESTIFIED THAT A LARGE NUMBER OF PEOPLE HAMMERED AT HIS CELL DOOR,
WHEREAS THE SHERIFF AND DEPUTY SHERIFFS DENIED THIS AND SAID THAT IT
WAS PHYSICALLY IMPOSSIBLE FOR A GROUP OF PEOPLE TO REACH PETITIONER'S
CELL AND THAT HIS CELL DOOR WAS NOT OF A TYPE CONDUCIVE TO HAMMERING. 

PETITIONER SAID THAT THE JUDGE, IN ARRAIGNING HIM, DID NOT INFORM HIM
OF HIS RIGHT TO COUNSEL.  SEVERAL WITNESSES TESTIFIED TO THE CONTRARY
AND JUDGE SWEET, PRESIDING AT THE HEARING ON THE DELAYED MOTION, SAID: 

"IT IS THE FURTHER CONCLUSION OF THIS COURT THAT BEFORE SUCH PLEA WAS
ACCEPTED BY THE LATE JUDGE WEIMER, THE PETITIONER WAS INFORMED OF HIS
RIGHT TO A TRIAL BY THE JURY AND OF HIS RIGHT TO BE REPRESENTED BY
COUNSEL, AND THAT THE PETITIONER INDICATED HIS DESIRE TO PROCEED
WITHOUT COUNSEL AND WITHOUT A TRIAL, AND HIS DESIRE TO HAVE HIS PLEA OF
GUILTY RECEIVED BY THE COURT AND SENTENCE IMPOSED WITHOUT FURTHER
DELAY." 

PETITIONER, IN TESTIFYING AS TO WHAT TOOK PLACE AT HIS PRIVATE
INTERVIEW WITH JUDGE WEIMER, SAID REPEATEDLY AND UNEQUIVOCALLY THAT THE
SHERIFF CAME WITH PETITIONER INTO THE JUDGE'S CHAMBERS AND NOT ONLY WAS
PRESENT BUT DID MUCH OF THE TALKING AND LEADING OF PETITIONER'S
EXAMINATION.  THE SHERIFF AND OTHERS, HOWEVER, TESTIFIED THAT IT WAS
THE SHERIFF'S PRACTICE NOT TO ATTEND SUCH PRIVATE SESSIONS OF THE
JUDGE, AND THAT THE SHERIFF WAS NOT PRESENT ON THIS OCCASION WHICH
JUDGE WEIMER DESCRIBED AS HIS "PRIVATE INTERVIEW" WITH PETITIONER. 

THIS LEAVES FOR CONSIDERATION THE SHERIFF'S STATEMENT, QUOTED BY THE
COURT, ANTE, PP.  162-163.  HIS RECOLLECTION WAS THAT HE TOLD
PETITIONER THAT, AS SHERIFF, IT WAS HIS DUTY TO PROTECT PETITIONER AND
THAT HE WOULD USE EVERY EFFORT AT HIS COMMAND TO DO SO, BUT THAT HE
ADDED "'THE TENSION IS HIGH OUT THERE AND I AM JUST TELLING YOU WHAT
COULD HAPPEN IF IT WAS STARTED BY SOMEONE.'  I DON'T KNOW THE LANGUAGE
I USED."  HE DID NOT TESTIFY AS TO PETITIONER'S MENTAL OR EMOTIONAL
CONDITION.  FURTHERMORE, HIS RECOLLECTION AS TO WHAT HE HAD SAID ABOUT
TENSION MUST BE READ IN COMPARISON WITH THE ABUNDANT TESTIMONY OF
OTHERS SUPPORTING JUDGE SWEET'S CONCLUSION THAT, IN 1938, THERE HAD
BEEN LITTLE COMMUNITY TENSION AND "NO THREAT OF MOB VIOLENCE  ...  ." 
THAT THE JUDGE DISCOUNTED THE EFFECT OF THE SHERIFF'S TESTIMONY APPEARS
FROM HIS DENIAL OF PETITIONER'S MOTION ON THE EXPRESS GROUND THAT HE
BELIEVED THAT PETITIONER'S PLEA OF GUILTY "WAS FREELY AND VOLUNTARILY
MADE  ...  ." 

THE ISSUE IS ONE OF FACT AS TO WHAT OCCURRED 19 YEARS AGO.  THREE
TIMES THE STATE COURTS HAVE CONCLUDED THAT PETITIONER ACTED FREELY,
INTELLIGENTLY AND UNDERSTANDINGLY.  ON THIS RECORD, I WOULD AFFIRM THAT
JUDGMENT. 
..END :
















UNITED STATES, LEE KUM HOY V. MURFF 355 U.S. 169 


NO. 32.  ARGUED NOVEMBER 21, 1957 - DECIDED DECEMBER 9, 1957 - 237 F.2D
307, JUDGMENTS VACATED AND CASE REMANDED. 


THREE CHINESE CHILDREN SOUGHT ENTRY INTO THE UNITED STATES, CLAIMING
TO BE CHILDREN OF AN AMERICAN CITIZEN, BUT THEY WERE EXCLUDED ON THE
GROUND THAT BLOOD GROUPING TESTS SHOWED THAT THE AMERICAN CITIZEN WAS
NOT THEIR PARENT.  IT APPEARED THAT THE BLOOD GROUPING TESTS WERE IN
SOME RESPECTS INACCURATE AND THE REPORTS THEREOF PARTLY ERRONEOUS AND
CONFLICTING.  HELD:  THE JUDGMENTS HERETOFORE ENTERED ARE VACATED AND
THE CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS THAT THE
HEARINGS BEFORE THE SPECIAL INQUIRY OFFICER OR A BOARD OF SPECIAL
INQUIRY BE REOPENED, SO THAT NEW, ACCURATE BLOOD GROUPING TESTS MAY BE
MADE UNDER APPROPRIATE CIRCUMSTANCES, AND THAT RELEVANT EVIDENCE MAY BE
RECEIVED AS OFFERED ON THE ISSUES INVOLVED. 

UNITED STATES EX REL. LEE KUM HOY ET AL. V. MURFF, DISTRICT DIRECTOR,
IMMIGRATION AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

IN VIEW OF THE REPRESENTATION IN THE SOLICITOR GENERAL'S ARGUMENT AT
THE BAR THAT THE BLOOD GROUPING TEST REQUIREMENT HERE INVOLVED IS
PRESENTLY AND HAS BEEN FOR SOME TIME APPLIED WITHOUT DISCRIMINATION "IN
EVERY CASE, IRRESPECTIVE OF RACE, WHENEVER DEEMED NECESSARY," AND IN
VIEW OF OUR REMAND OF THE CASE, WE NEED NOT NOW PASS UPON THE CLAIM OF
UNCONSTITUTIONAL DISCRIMINATION. 

IT APPEARING THAT THE BLOOD GROUPING TESTS MADE HEREIN WERE IN SOME
RESPECTS INACCURATE AND THE REPORTS THEREOF PARTLY ERRONEOUS AND
CONFLICTING, THE JUDGMENTS HERETOFORE ENTERED ARE VACATED AND THE CASE
IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS THAT THE HEARINGS
BEFORE THE SPECIAL INQUIRY OFFICER OR A BOARD OF SPECIAL INQUIRY BE
REOPENED, SO THAT NEW, ACCURATE BLOOD GROUPING TESTS MAY BE MADE UNDER
APPROPRIATE CIRCUMSTANCES, AND THAT RELEVANT EVIDENCE MAY BE RECEIVED
AS OFFERED ON THE ISSUES INVOLVED.  THE EXCLUDABILITY OF PETITIONERS
REMAINS TO BE DETERMINED UPON THOSE PROCEEDINGS. 
..END :










BARR V. MATTEO 355 U.S. 171 


NO. 409.  DECIDED DECEMBER 9, 1957 - 244 F.2D 767, JUDGMENT VACATED AND
CASE REMANDED. 


THE PETITION FOR CERTIORARI IN THIS CASE PRESENTS THE QUESTION OF
ABSOLUTE IMMUNITY OF GOVERNMENT OFFICIALS FROM DEFAMATION SUITS.  A
NARROWER QUESTION, THE DEFENSE OF QUALIFIED PRIVILEGE, HAD BEEN URGED
IN THE DISTRICT COURT AND THE COURT OF APPEALS, BUT NOT CONSIDERED BY
THE COURT OF APPEALS ON THE GROUND THAT IT HAD BEEN WAIVED.  HELD:
CERTIORARI IS GRANTED, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED,
AND THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO CONSIDER THE
DEFENSE OF QUALIFIED PRIVILEGE.  PP. 171-173. 

BARR V. MATTEO ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED.  THE PETITION PRESENTS THIS
QUESTION:  "WHETHER THE ABSOLUTE IMMUNITY FROM DEFAMATION SUITS
ACCORDED OFFICIALS OF THE GOVERNMENT WITH RESPECT TO ACTS DONE WITHIN
THE SCOPE OF THEIR OFFICIAL AUTHORITY, EXTENDS TO STATEMENTS TO THE
PRESS BY HIGH POLICY-MAKING OFFICERS, BELOW CABINET OR COMPARABLE RANK,
CONCERNING MATTERS COMMITTED BY LAW TO THEIR CONTROL OR SUPERVISION." 

IN THE DISTRICT COURT AND THE COURT OF APPEALS THE LITIGATION WAS NOT
SO CONFINED.  BY HIS MOTION FOR A DIRECTED VERDICT AND REQUESTED
INSTRUCTIONS PETITIONER ALSO PRESENTED TO THE DISTRICT COURT THE
DEFENSE OF QUALIFIED PRIVILEGE.  ON APPEAL TO THE COURT OF APPEALS
PETITIONER, IN HIS BRIEF, RAISED ONLY THE QUESTION OF ABSOLUTE
IMMUNITY, BUT ON RECONSIDERATION HE URGED THE COURT ALSO TO PASS ON THE
DEFENSE OF QUALIFIED PRIVILEGE.  THIS THAT COURT REFUSED TO DO ON THE
GROUND THAT PETITIONER, BECAUSE OF THE POSITION HE HAD INITIALLY TAKEN
ON THE APPEAL, HAD WAIVED THE DEFENSE.  IN SO HOLDING, THE COURT RELIED
ON ITS RULE 17(C)(7), REQUIRING AN APPELLANT TO SET FORTH IN HIS BRIEF
A STATEMENT OF THE POINTS ON WHICH HE INTENDS TO RELY, AND RULE 17(I),
WHICH PROVIDES THAT "POINTS NOT PRESENTED ACCORDING TO THE RULES OF THE
COURT, WILL BE DISREGARDED, THOUGH THE COURT, AT ITS OPTION, MAY NOTICE
AND PASS UPON A PLAIN ERROR NOT POINTED OUT OR RELIED UPON."  244 F.2D
767. 

THE SCOPE OF THE LITIGATION IN THE COURT OF APPEALS CANNOT LESSEN
THIS COURT'S DUTY TO CONFINE ITSELF TO THE PROPER EXERCISE OF ITS
JURISDICTION AND THE APPROPRIATE SCOPE OF JUDICIAL REVIEW.  THUS, AN
ADVISORY OPINION CANNOT BE EXTRACTED FROM A FEDERAL COURT BY AGREEMENT
OF THE PARTIES, SEE SWIFT & CO. V. HOCKING VALLEY R. CO., 243 U.S. 281,
289, AND NO MATTER HOW MUCH THEY MAY FAVOR THE SETTLEMENT OF AN
IMPORTANT QUESTION OF CONSTITUTIONAL LAW, BROAD CONSIDERATIONS OF THE
APPROPRIATE EXERCISE OF JUDICIAL POWER PREVENT SUCH DETERMINATIONS
UNLESS ACTUALLY COMPELLED BY THE LITIGATION BEFORE THE COURT.  UNITED
STATES V. C.I.O., 335 U.S. 106, 110.  LIKEWISE, "COURTS SHOULD AVOID
PASSING ON QUESTIONS OF PUBLIC LAW EVEN SHORT OF CONSTITUTIONALITY THAT
ARE NOT IMMEDIATELY PRESSING.  MANY OF THE SAME REASONS ARE PRESENT
WHICH IMPEL THEM TO ABSTAIN FROM ADJUDICATING CONSTITUTIONAL CLAIMS
AGAINST A STATUTE BEFORE IT EFFECTIVELY AND PRESENTLY IMPINGES ON SUCH
CLAIMS."  ECCLES V. PEOPLES BANK, 333 U.S. 426, 432.  ESPECIALLY IN A
CASE INVOLVING ON THE ONE HAND PROTECTION OF THE REPUTATION OF
INDIVIDUALS, AND ON THE OTHER THE INTEREST OF THE PUBLIC IN THE FULLEST
FREEDOM OF OFFICIALS TO MAKE DISCLOSURES ON MATTERS WITHIN THE SCOPE OF
THEIR PUBLIC DUTIES, THIS COURT SHOULD AVOID RENDERING A DECISION
BEYOND THE OBVIOUS REQUIREMENTS OF THE RECORD.  IN THE PRESENT CASE A
GROUND FAR NARROWER THAN THAT ON WHICH THE COURT OF APPEALS RESTED ITS
DECISION, THE DEFENSE OF QUALIFIED PRIVILEGE, WAS CONSISTENTLY PRESSED
IN THE DISTRICT COURT AND IN FACT URGED IN THE COURT OF APPEALS
ITSELF.  IN THESE CIRCUMSTANCES WE THINK THAT THE BROAD REQUIREMENTS OF
JUDICIAL POWER AND ITS PROPER EXERCISE SHOULD LEAD TO CONSIDERATION OF
THE DEFENSE OF QUALIFIED PRIVILEGE. 

TO THAT END, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND THE
CASE REMANDED TO THAT COURT WITH DIRECTIONS TO PASS UPON PETITIONER'S
CLAIM OF A QUALIFIED PRIVILEGE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE JOINS, AGREES WITH THE
DISPOSITION OF THIS CASE AS EXPRESSED IN THE LAST PARAGRAPH. 

MR. JUSTICE BRENNAN WOULD GRANT THE PETITION AND CONSIDER THE
QUESTION PRESENTED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE COURT OF APPEALS RULED THAT THE QUESTION OF THE DEFENSE OF
QUALIFIED PRIVILEGE ON WHICH WE VACATE AND REMAND HAD BEEN "WAIVED" BY
PETITIONER AND THEREFORE SHOULD NOT BE CONSIDERED BY THE COURT OF
APPEALS UNDER ITS RULES.  THAT QUESTION THEREFORE IS NOT HERE FOR US
NOR SHOULD IT BE REACHED BY THE COURT OF APPEALS.  I CANNOT SAY THAT
THE COURT OF APPEALS MISCONSTRUED ITS OWN RULES* OR COMMITTED PALPABLE
ERROR IN REFUSING TO CONSIDER THE QUESTION OR UNCEREMONIOUSLY AND
IMPROPERLY REACHED FOR A CONSTITUTIONAL QUESTION WHICH IT SHOULD HAVE
SOUGHT TO AVOID.  UNDER THESE CIRCUMSTANCES IT IS AN UNWARRANTED
EXERCISE OF OUR SUPERVISORY POWERS TO REQUIRE THAT THE QUESTION BE
CONSIDERED BY THE COURT OF APPEALS.  INSTEAD, WE SHOULD EXERCISE OUR
DISCRETION BY DENYING CERTIORARI. 

*"A CONCISE STATEMENT OF THE POINTS ON WHICH APPELLANT INTENDS TO
RELY, SET FORTH IN SEPARATE, NUMBERED PARAGRAPHS.  EACH POINT SHALL
REFER TO THE ALLEGED ERROR UPON WHICH APPELLANT INTENDS TO RELY."  RULE
17(C)(7). 

"POINTS NOT PRESENTED ACCORDING TO THE RULES OF THE COURT, WILL BE
DISREGARDED, THOUGH THE COURT, AT ITS OPTION, MAY NOTICE AND PASS UPON
A PLAIN ERROR NOT POINTED OUT OR RELIED UPON."  RULE 17(I). 
..END :













INTERSTATE COMMERCE COMMISSION V. BALTIMORE & OHIO RAILROAD CO. 355 U.S.
175 


NO. 463.  DECIDED DECEMBER 9, 1957* - 151 F. SUPP. 258, DECREE VACATED
IN PART AND CASE REMANDED. 

*TOGETHER WITH NO. 464, PENNSYLVANIA RAILROAD CO. V. BALTIMORE & OHIO
RAILROAD CO. ET AL.; NO. 465, ERIE RAILROAD CO. ET AL. V. BALTIMORE &
OHIO RAILROAD CO. ET AL.; NO. 466, NEW YORK CENTRAL RAILROAD CO. V.
BALTIMORE & OHIO RAILROAD CO. ET AL.; NO. 467, ARMCO STEEL CORP. ET AL.
V. BALTIMORE & OHIO RAILROAD CO. ET AL.; NO. 468, DELAWARE RIVER PORT
AUTHORITY ET AL. V. BALTIMORE & OHIO RAILROAD CO. ET AL.; AND NO. 473,
UNITED STATES V. BALTIMORE & OHIO RAILROAD CO. ET AL., ALSO ON APPEALS
FROM THE SAME COURT. 


THE DISTRICT COURT, REVIEWING AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION ESTABLISHING THE TARIFF RELATIONSHIP ON IMPORTED IRON ORE
SHIPPED BY RAILROAD TO CENTRAL FREIGHT ASSOCIATION TERRITORY FROM THE
PORTS OF NEW YORK, PHILADELPHIA AND BALTIMORE, VACATED THAT PORTION OF
THE ORDER RELATING TO NEW YORK AS BEING WITHOUT BASIS IN THE RECORD AND
REMANDED TO THE COMMISSION FOR MORE EXPLICIT FINDINGS THAT PORTION OF
THE ORDER DEALING WITH THE RELATIONSHIP BETWEEN PHILADELPHIA AND
BALTIMORE RATES.  HELD:  IN CARRYING OUT THE DISTRICT COURT'S DIRECTION
REGARDING THE PHILADELPHIA AND BALTIMORE RATES, THE COMMISSION SHOULD
BE LEFT FREE TO TAKE INTO ACCOUNT THE EFFECT OF NEW YORK RATES ON THE
TARIFF RELATIONSHIP BETWEEN PHILADELPHIA AND BALTIMORE AND THE EFFECT
OF THAT RELATIONSHIP ON NEW YORK AND TO ENTER SUCH ORDERS WITH RESPECT
TO ALL THREE PORTS AS THE COMMISSION MAY FIND TO BE REQUIRED BY THEIR
INTERRELATIONSHIP.  PP. 176-178. 

INTERSTATE COMMERCE COMMISSION V. BALTIMORE & OHIO RAILROAD CO. ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

PER CURIAM. 

THIS LITIGATION INVOLVES THE VALIDITY OF AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION DEALING WITH THE PROPER RELATIONSHIP, UNDER THE
NATIONAL TRANSPORTATION POLICY (SEC. 1 OF THE TRANSPORTATION ACT OF
1940, 54 STAT. 899, 49 U.S.C., AT P. 7107), OF RAILROAD TARIFFS ON
IMPORTED IRON ORE SHIPPED TO A STEEL-PRODUCING AREA IN PENNSYLVANIA,
OHIO AND WEST VIRGINIA (THE SO-CALLED "DIFFERENTIAL TERRITORY" OF THE
CENTRAL FREIGHT ASSOCIATION) FROM THE PORTS OF NEW YORK, PHILADELPHIA
AND BALTIMORE.  A TARIFF DIFFERENTIAL IN FAVOR OF BALTIMORE HAD EXISTED
PRIOR TO THIS CONTROVERSY.  IN A SUCCESSION OF TARIFF REDUCTIONS,
RAILROADS SERVING NEW YORK AND PHILADELPHIA FILED SCHEDULES DESIGNED TO
ESTABLISH PARITY OF RATES AMONG THE SEVERAL PORTS, WHILE RAILROADS
SERVING BALTIMORE FILED SCHEDULES DESIGNED TO MAINTAIN THE
DIFFERENTIAL.  UPON PROTEST AGAINST THE NEW YORK AND PHILADELPHIA
SCHEDULES BY BALTIMORE CIVIC AND COMMERCIAL INTERESTS AND RAILROADS
SERVING THAT PORT, THE INTERSTATE COMMERCE COMMISSION INSTITUTED AN
INVESTIGATION AS A RESULT OF WHICH DIVISION 2 OF THE COMMISSION FILED A
REPORT APPROVING THE TARIFF SCHEDULES GIVING PHILADELPHIA PARITY WITH
BALTIMORE BUT FINDING ALL OTHER SCHEDULES THAT HAD BEEN ISSUED IN THIS
SERIES OF REDUCTIONS TO BE NOT JUST AND REASONABLE.  291 I.C.C. 527. 
ON PETITION OF VARIOUS PARTIES, THE COMMISSION REOPENED THE
PROCEEDINGS, AND ON OCTOBER 1, 1956, THE FULL COMMISSION MODIFIED THE
FINDINGS OF THE DIVISION 2 REPORT TO THE EXTENT OF FINDING THE NEW YORK
SCHEDULES, AS WELL AS THE PHILADELPHIA SCHEDULES, TO BE JUST AND
REASONABLE, 299 I.C.C. 195.  THE FULL COMMISSION'S ORDER WAS CHALLENGED
IN A PROCEEDING INSTITUTED UNDER 28 U.S.C. SEC. 1336, AND AN
APPROPRIATE DISTRICT COURT HELD THAT THE COMMISSION'S APPROVAL OF
PARITY BETWEEN NEW YORK AND BALTIMORE WAS WITHOUT BASIS IN THE RECORD
AND ORDERED THAT PORTION OF THE COMMISSION'S ORDER VACATED.  THE COURT
FURTHER HELD THAT THE COMMISSION'S APPROVAL OF PARITY BETWEEN
PHILADELPHIA AND BALTIMORE WAS NOT SUPPORTED BY ESSENTIAL FINDINGS AS
TO OCEAN FREIGHT COSTS AND ANTICIPATED TRAFFIC AND REMANDED THAT
PORTION OF THE COMMISSION'S ORDER FOR MORE EXPLICIT FINDINGS.  THE
COURT ALSO GRANTED OTHER RELIEF SUBSIDIARY OF THESE ACTIONS.  151 F.
SUPP. 258.  THESE ARE THE ONLY PORTIONS OF THE DECISION BELOW WITH
WHICH WE ARE HERE CONCERNED.  WE PUT TO ONE SIDE THOSE PROVISIONS OF
THE DECREE BELOW IN WHICH THE DISTRICT COURT AFFIRMED OTHER PORTIONS OF
THE COMMISSION'S ORDER. 

FROM WHAT APPEARS, IT IS NOT PRECLUDED THAT THE COMMISSION MAY FIND
AN INTERRELATIONSHIP, WITHIN THE PURVIEW OF THE NATIONAL TRANSPORTATION
POLICY, SUPRA, AMONG LAWFUL TARIFFS TO BE ESTABLISHED BETWEEN THESE
THREE PORTS AND THE "DIFFERENTIAL TERRITORY."  IN THIS LIGHT WE DEEM IT
APPROPRIATE THAT, IN RECONSIDERING THE RELATIONSHIP BETWEEN THE
PHILADELPHIA AND BALTIMORE SCHEDULES PURSUANT TO THE REMAND OF THE
DISTRICT COURT, THE COMMISSION SHOULD BE FREE TO RECONSIDER AND TAKE
ACTION UPON THE NEW YORK SCHEDULES.  IN CARRYING OUT THE DISTRICT
COURT'S DIRECTION REGARDING THE PHILADELPHIA RATES, THE COMMISSION
SHOULD BE PERMITTED TO TAKE INTO ACCOUNT THE EFFECT OF NEW YORK RATES
ON THE TARIFF RELATIONSHIP BETWEEN PHILADELPHIA AND BALTIMORE AND THE
EFFECT OF THAT RELATIONSHIP ON NEW YORK AND TO ENTER SUCH ORDERS WITH
RESPECT TO ALL THREE PORTS AS THE COMMISSION MAY FIND TO BE REQUIRED BY
THEIR INTERRELATIONSHIP.  ACCORDINGLY, ON THE APPEALS BEFORE US, SO
MUCH OF THE DECREE OF THE DISTRICT COURT AS DID NOT AFFIRM THE ORDER OF
THE COMMISSION IS VACATED, AND THE CAUSE IS REMANDED FOR APPROPRIATE
DISPOSITION NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK WOULD AFFIRM THE JUDGMENT OF
THE DISTRICT COURT. 
..END :






















ATCHISON, TOPEKA & SANTA FE RAILWAY CO. V. DIXIE CARRIERS, INC. 355 U.S.
179 


NO. 60.  DECIDED DECEMBER 9, 1957* - REPORTED BELOW:  143 F. SUPP. 844. 

*TOGETHER WITH NO. 61, UNITED STATES V. DIXIE CARRIERS, INC., ET AL.,
AND NO. 62, INTERSTATE COMMERCE COMMISSION V. DIXIE CARRIERS, INC., ET
AL., ALSO ON APPEAL FROM THE SAME COURT. 


UPON SUGGESTION OF MOOTNESS, JUDGMENT VACATED AND CASE REMANDED WITH
DIRECTIONS TO DISMISS THE COMPLAINT. 

ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET AL. V. DIXIE CARRIERS, INC.,
ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

UPON THE SUGGESTION OF MOOTNESS THE JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS IS VACATED AND THE
CASE IS REMANDED WITH DIRECTIONS TO DISMISS THE COMPLAINT. 
..END :






MOUNCE V. UNITED STATES 355 U.S. 180 


NO. 542.  DECIDED DECEMBER 9, 1957 - REPORTED BELOW:  247 F.2D 148. 


UPON CONSIDERATION OF THE RECORD AND CONFESSION OF ERROR BY THE
SOLICITOR GENERAL, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND
THE CASE IS REMANDED TO THE DISTRICT COURT FOR CONSIDERATION IN THE
LIGHT OF ROTH V. UNITED STATES, 354 U.S. 476. 

MOUNCE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  UPON CONSIDERATION
OF THE ENTIRE RECORD AND CONFESSION OF ERROR BY THE SOLICITOR GENERAL
THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT IS VACATED AND THE CASE IS REMANDED TO THE UNITED STATES
DISTRICT COURT FOR CONSIDERATION IN LIGHT OF ROTH V. UNITED STATES, 354
U.S. 476. 
..END :







WORLD INSURANCE CO. V. BETHEA 355 U.S. 181 


NO. 510.  DECIDED DECEMBER 9, 1957 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW: - MISS.  - , 93 SO. 2D
624. 


WORLD INSURANCE CO. V. BETHEA, ADMINISTRATRIX. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















SEATRAIN LINES, INC., V. UNITED STATES 355 U.S. 181 


NO. 522.  DECIDED DECEMBER 9, 1957 - 152 F. SUPP. 619, AFFIRMED. 


SEATRAIN LINES, INC., V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















CANO V. PENNSYLVANIA 355 U.S. 182 


NO. 538.  DECIDED DECEMBER 9, 1957 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  389 PA. 639, 133 A.2D 800. 


CANO ET AL. V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















KECO INDUSTRIES, INC. V. CINCINNATI & SUBURBAN BELL TELEPHONE CO. 355
U.S. 182 


NO. 543.  DECIDED DECEMBER 9, 1957 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  166 OHIO ST. 254, 141 N.E.2D 465. 


KECO INDUSTRIES, INC., ET AL. V. CINCINNATI & SUBURBAN BELL TELEPHONE
CO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














IN RE RETENELLER 355 U.S. 183 


NO. 546.  DECIDED DECEMBER 9, 1957 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


IN RE RETENELLER. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















WALSH V. FIRST NATIONAL BANK & TRUST CO. OF SCRANTON, PA. 355 U.S. 183 


NO. 553.  DECIDED DECEMBER 9, 1957 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  389 PA. 197, 132 A.2D 212. 


WALSH V. FIRST NATIONAL BANK & TRUST CO. OF SCRANTON, PA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















YATES V. UNITED STATES 355 U.S. 66 


NO. 2.  ARGUED OCTOBER 9-10, 1956 - RESTORED TO THE CALENDAR FOR
REARGUMENT JUNE 10, 1957 - REARGUED OCTOBER 22, 1957 - DECIDED NOVEMBER
25, 1957 - 227 F.2D 851, AFFIRMED IN PART AND REVERSED IN PART,
JUDGMENT VACATED AND CASE REMANDED. 


IN THE TRIAL OF PETITIONER AND 13 CODEFENDANTS FOR CONSPIRACY TO
VIOLATE THE SMITH ACT, PETITIONER TESTIFIED IN HER OWN DEFENSE AFTER
THE GOVERNMENT AND ALL BUT FOUR DEFENDANTS HAD RESTED THEIR CASES.  ON
THE FIRST DAY OF HER CROSS-EXAMINATION, SHE REFUSED TO ANSWER FOUR
QUESTIONS ABOUT THE COMMUNIST MEMBERSHIP OF A NONDEFENDANT AND A
CODEFENDANT WHO HAD RESTED HIS CASE, INDICATING THAT SHE WOULD REFUSE
TO IDENTIFY OTHER PERSONS AS MEMBERS OF THE COMMUNIST PARTY.  FOR THIS
SHE WAS IMPRISONED FOR CIVIL CONTEMPT.  ON THE THIRD DAY OF HER CROSS
EXAMINATION, SHE REFUSED TO ANSWER 11 SIMILAR QUESTIONS, STATING THAT
SHE WOULD NOT IDENTIFY OTHERS AS COMMUNISTS IF TO DO SO WOULD HURT THEM
OR THEIR FAMILIES.  THE JUDGE NOTIFIED HER AT THE TIME THAT HE WOULD
TREAT THESE 11 REFUSALS TO ANSWER AS CRIMINAL CONTEMPTS; AND, AFTER THE
CLOSE OF THE CONSPIRACY TRIAL, HE FOUND HER GUILTY OF 11 SEPARATE
CRIMINAL CONTEMPTS AND SENTENCED HER TO IMPRISONMENT FOR ONE YEAR ON
EACH, THE SENTENCES TO RUN CONCURRENTLY.  IN DOING SO HE STATED THAT,
IF SHE WOULD ANSWER THE QUESTIONS WITHIN 60 DAYS, HE WOULD BE INCLINED
TO ACCEPT HER SUBMISSION TO THE COURT'S AUTHORITY; BUT PETITIONER
PERSISTED IN HER REFUSAL.  HELD: 

1.  THE LATTER SENTENCES WERE NOT FOR CIVIL CONTEMPT, FOR THE PURPOSE
OF COERCING ANSWERS TO QUESTIONS; THEY WERE FOR CRIMINAL CONTEMPT, TO
VINDICATE THE AUTHORITY OF THE COURT.  P. 72. 

2.  PETITIONER WAS GUILTY OF ONLY ONE CRIMINAL CONTEMPT BY HER
REFUSALS TO ANSWER ON THE THIRD DAY OF HER CROSS-EXAMINATION; AND
PUNISHMENT FOR THAT WAS NOT BARRED BY THE FACT THAT SHE HAD BEEN
IMPRISONED FOR CIVIL CONTEMPT FOR HER REFUSALS TO ANSWER ON THE FIRST
DAY OF HER CROSS-EXAMINATION.  PP. 72-75. 

(A)  THE PROSECUTION CANNOT MULTIPLY CONTEMPTS BY REPEATED
QUESTIONING ON THE SAME SUBJECT OF INQUIRY WITHIN WHICH A RECALCITRANT
WITNESS ALREADY HAD REFUSED ANSWERS.  P. 73. 

(B)  EVEN ASSUMING THAT THE UNANSWERED QUESTIONS ENCOMPASSED SEVERAL
SUBJECTS OF INQUIRY, EACH OF THE QUESTIONS FELL WITHIN THE AREA OF
REFUSAL ESTABLISHED BY PETITIONER ON THE FIRST DAY OF HER CROSS
EXAMINATION, AND ONLY ONE CONTEMPT IS SHOWN ON THE FACTS OF THIS CASE. 
PP. 73-74. 

(C)  HOWEVER, HER REFUSAL TO ANSWER ON THE THIRD DAY OF HER CROSS
EXAMINATION WAS A CONTINUANCE OF HER DEFIANCE OF THE COURT'S AUTHORITY,
AND IT SUBJECTED HER TO A CONVICTION FOR CRIMINAL CONTEMPT.  P. 74. 

(D)  IMPOSITION OF THE CIVIL SENTENCE FOR HER REFUSALS TO ANSWER ON
THE FIRST DAY OF HER CROSS-EXAMINATION IS NO BARRIER TO CRIMINAL
PUNISHMENT FOR HER REFUSALS TO ANSWER ON THE THIRD DAY OF HER CROSS
EXAMINATION, SINCE THE CIVIL AND CRIMINAL SENTENCES SERVED DISTINCT
PURPOSES, THE ONE COERCIVE, THE OTHER PUNITIVE AND DETERRENT.  PP. 74
75. 

3.  PETITIONER'S CONTEMPT CONVICTIONS ON ALL BUT THE FIRST
SPECIFICATION ARE REVERSED; THAT ON THE FIRST SPECIFICATION IS
AFFIRMED; BUT THE SENTENCE ON THAT CONVICTION IS VACATED AND THE CASE
IS REMANDED TO THE DISTRICT COURT FOR RESENTENCING IN THE LIGHT OF THIS
OPINION.  PP. 75-76. 

YATES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS ONE OF CRIMINAL CONTEMPT FOR REFUSAL TO ANSWER QUESTIONS
AT TRIAL.  PETITIONER, ADMITTEDLY A HIGH EXECUTIVE OFFICER OF THE
COMMUNIST PARTY OF CALIFORNIA, AND 13 CODEFENDANTS WERE INDICTED AND
CONVICTED OF CONSPIRACY TO VIOLATE THE SMITH ACT.  (FN1)  DURING THE
TRIAL, PETITIONER REFUSED ON JUNE 30, 1952, TO ANSWER 11 QUESTIONS
RELATING TO WHETHER PERSONS OTHER THAN HERSELF WERE MEMBERS OF THE
COMMUNIST PARTY.  THE DISTRICT COURT HELD PETITIONER IN CONTEMPT OF
COURT FOR EACH REFUSAL TO ANSWER, AND IMPOSED 11 CONCURRENT SENTENCES
OF ONE YEAR EACH, WHICH WERE TO COMMENCE UPON PETITIONER'S RELEASE FROM
CUSTODY FOLLOWING EXECUTION OF THE FIVE-YEAR SENTENCE IMPOSED IN THE
CONSPIRACY CASE.  THIS JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS. 
227 F.2D 851.  WE GRANTED CERTIORARI.  350 U.S. 947.  THE PRINCIPAL
QUESTION PRESENTED IS WHETHER THE FINDING OF A SEPARATE CONTEMPT FOR
EACH REFUSAL CONSTITUTES AN IMPROPER MULTIPLICATION OF CONTEMPTS.  WE
HOLD THAT IT DOES, AND FIND THAT ONLY ONE CONTEMPT HAS BEEN COMMITTED. 

THE CIRCUMSTANCES OF PETITIONER'S CONVICTION ARE THESE.  AFTER THE
GOVERNMENT HAD RESTED ITS CASE IN THE SMITH ACT TRIAL, ALL BUT FOUR OF
THE DEFENDANTS - PETITIONER AND THREE OTHERS - RESTED THEIR CASES. 
PETITIONER TOOK THE STAND AND TESTIFIED IN HER OWN DEFENSE.  DURING THE
AFTERNOON OF THE FIRST DAY OF HER CROSS-EXAMINATION, JUNE 26, 1952, SHE
REFUSED TO ANSWER FOUR QUESTIONS ABOUT THE COMMUNIST MEMBERSHIP OF A
NONDEFENDANT AND OF A CODEFENDANT WHO HAD RESTED HIS CASE.  (FN2)  IN
REFUSING TO ANSWER, SHE STATED, "  ...  THAT IS A QUESTION WHICH, IF I
WERE TO ANSWER, COULD ONLY LEAD TO A SITUATION IN WHICH A PERSON COULD
BE CAUSED TO SUFFER THE LOSS OF HIS JOB  ...  AND PERHAPS BE SUBJECTED
TO FURTHER HARASSMENT, AND  ...  I CANNOT BRING MYSELF TO CONTRIBUTE TO
THAT."  SHE ADDED, "HOWEVER MANY TIMES I AM ASKED AND IN HOWEVER MANY
FORMS, TO IDENTIFY A PERSON AS A COMMUNIST, I CAN'T BRING MYSELF TO DO
IT  ...  ."  THE DISTRICT COURT ADJUDGED HER GUILTY OF CIVIL CONTEMPT
FOR REFUSING TO ANSWER THESE QUESTIONS, AND COMMITTED HER TO JAIL UNTIL
SHE SHOULD PURGE HERSELF BY ANSWERING THE QUESTIONS OR UNTIL FURTHER
ORDER OF THE COURT.  SHE WAS CONFINED FOR THE REMAINDER OF THE TRIAL. 
(FN3) 

ON THE THIRD DAY OF PETITIONER'S CROSS-EXAMINATION, JUNE 30, 1952,
DESPITE INSTRUCTIONS FROM THE COURT TO ANSWER, PETITIONER REFUSED TO
ANSWER 11 QUESTIONS WHICH IN ONE WAY OR ANOTHER CALLED FOR HER TO
IDENTIFY NINE OTHER PERSONS AS COMMUNISTS.  THE STATED GROUND FOR
REFUSAL IN THESE INSTANCES WAS PETITIONER'S BELIEF THAT EITHER THE
PERSON NAMED OR HIS FAMILY COULD "BE HURT BY" SUCH TESTIMONY.  SHE
EXPRESSED A WILLINGNESS TO IDENTIFY OTHERS AS COMMUNISTS - AND IN ONE
INSTANCE DID SO - IF SUCH IDENTIFICATION WOULD NOT HURT THEM.  THE
JUDGE STATED THAT HE EXPECTED TO TREAT THESE 11 REFUSALS AS CRIMINAL
CONTEMPT UNDER RULE 42(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 
(FN4)  ADJUDICATION OF THE CONTEMPT WAS DEFERRED UNTIL COMPLETION OF
THE PRINCIPAL CASE. 

AFTER CONVICTION AND IMPOSITION OF SENTENCES IN THE CONSPIRACY CASE,
THE COURT, ACTING UNDER 18 U.S.C. SEC. 401, (FN5) FOUND PETITIONER
GUILTY OF "ELEVEN SEPARATE CRIMINAL CONTEMPTS" FOR HER 11 REFUSALS TO
ANSWER QUESTIONS ON JUNE 30.  NO QUESTION IS RAISED AS TO THE FORM OR
CONTENT OF THE SPECIFICATIONS. 

THE COURT SENTENCED PETITIONER TO IMPRISONMENT FOR ONE YEAR ON EACH
OF THE 11 SEPARATE SPECIFICATIONS OF CRIMINAL CONTEMPT.  THE SENTENCES
WERE TO RUN CONCURRENTLY AND WERE TO COMMENCE UPON HER RELEASE FROM
CUSTODY FOLLOWING EXECUTION OF THE FIVE-YEAR SENTENCE IMPOSED ON THE
CONSPIRACY CHARGE.  UPON IMPOSING SENTENCE, THE COURT STATED THAT IF
PETITIONER ANSWERED THE 11 QUESTIONS THEN OR WITHIN 60 DAYS, WHILE HE
HAD AUTHORITY TO MODIFY THE SENTENCE UNDER RULE 35 OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE, HE WOULD BE INCLINED TO ACCEPT HER SUBMISSION TO
THE AUTHORITY OF THE COURT.  HOWEVER, PETITIONER PERSISTED IN HER
REFUSAL. 

THE SUMMARY CONTEMPT POWER IN THE FEDERAL COURTS, "  ...  ALTHOUGH
ARBITRARY IN ITS NATURE AND LIABLE TO ABUSE, IS ABSOLUTELY ESSENTIAL TO
THE PROTECTION OF THE COURTS IN THE DISCHARGE OF THEIR FUNCTIONS. 
WITHOUT IT, JUDICIAL TRIBUNALS WOULD BE AT THE MERCY OF THE DISORDERLY
AND VIOLENT, WHO RESPECT NEITHER THE LAWS ENACTED FOR THE VINDICATION
OF PUBLIC AND PRIVATE RIGHTS, NOR THE OFFICERS CHARGED WITH THE DUTY OF
ADMINISTERING THEM."  EX PARTE TERRY, 128 U.S. 289, 313 (1888).  THE
JUDICIARY ACT OF 1789 CONTAINED A SECTION MAKING IT EXPLICIT THAT
FEDERAL COURTS COULD "PUNISH BY FINE OR IMPRISONMENT, AT THE DISCRETION
OF SAID COURTS, ALL CONTEMPTS OF AUTHORITY IN ANY CAUSE OR HEARING
BEFORE THE SAME  ...  ."  1 STAT. 73, 83.  AFTER UNITED STATES DISTRICT
JUDGE PECK'S ACQUITTAL IN 1831 (FN6) ON CHARGES OF HIGH MISDEMEANORS
FOR SUMMARILY PUNISHING A MEMBER OF THE BAR FOR CONTEMPT IN PUBLISHING
A CRITICAL COMMENT ON ONE OF HIS JUDGMENTS, CONGRESS MODIFIED THE
STATUTE.  IN THE ACT OF 1831, THE CONTEMPT POWER WAS LIMITED TO
SPECIFIC SITUATIONS SUCH AS DISOBEDIENCE TO LAWFUL ORDERS.  4 STAT.
487.  SEE FRANKFURTER AND LANDIS, POWER OF CONGRESS OVER PROCEDURE IN
CRIMINAL CONTEMPTS IN "INFERIOR" FEDERAL COURTS, 37 HARV. L. REV. 1010,
1023-1038.  THE PRESENT CODE PROVISION IS SUBSTANTIALLY SIMILAR.  (FN7)
WE HAVE NO DOUBT THAT THE REFUSALS IN QUESTION CONSTITUTED CONTEMPT
WITHIN THE MEANING OF 18 U.S.C. SEC. 401(3). 

THIS CASE PRESENTS THREE ISSUES.  PETITIONER CLAIMS THAT THE
SENTENCES WERE IMPOSED TO COERCE HER INTO ANSWERING THE QUESTIONS
INSTEAD OF TO PUNISH HER, MAKING THE CONTEMPTS CIVIL RATHER THAN
CRIMINAL AND THE SENTENCES TO A PRISON TERM AFTER THE CLOSE OF THE
TRIAL A VIOLATION OF FIFTH AMENDMENT DUE PROCESS.  SECOND, PETITIONER
ARGUES THAT HER SEVERAL REFUSALS TO ANSWER ON BOTH JUNE 26 AND JUNE 30
CONSTITUTED BUT A SINGLE CONTEMPT WHICH WAS TOTAL AND COMPLETE ON JUNE
26, SO THAT IMPOSITION OF CONTEMPT SENTENCES FOR THE JUNE 30 REFUSALS
WAS IN VIOLATION OF DUE PROCESS.  FINALLY, PETITIONER CONTENDS THAT HER
ONE-YEAR SENTENCES WERE SO SEVERE AS TO VIOLATE DUE PROCESS AND
CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AMENDMENT. 

                                        I. 

WHILE IMPRISONMENT CANNOT BE USED TO COERCE EVIDENCE AFTER A TRIAL HAS
TERMINATED, YATES V. UNITED STATES, 227 F.2D 844; CF. GOMPERS V. BUCKS
STOVE & RANGE CO., 221 U.S. 418, 443, 449 (1911), IT IS UNQUESTIONED
THAT IMPRISONMENT FOR A DEFINITE TERM MAY BE IMPOSED TO PUNISH THE
CONTEMNOR IN VINDICATION OF THE AUTHORITY OF THE COURT.  WE DO NOT
BELIEVE THAT THE SENTENCES UNDER REVIEW IN THIS CASE WERE IMPOSED FOR
THE PURPOSE OF COERCING ANSWERS TO THE 11 QUESTIONS.  RATHER, THE
RECORD CLEARLY SHOWS THAT THE ORDER WAS MADE TO "VINDICATE THE
AUTHORITY OF THE COURT" BY PUNISHING PETITIONER'S "DEFIANCE" THEREOF. 
THE SENTENCING JUDGE DID EXPRESS THE HOPE THAT PETITIONER WOULD STILL
"PURGE HERSELF TO THE EXTENT THAT SHE BOWS TO THE AUTHORITY OF THE
COURT" BY ANSWERING THE QUESTIONS EITHER AT THE TIME OF THE SENTENCING
OR WITHIN 60 DAYS THEREAFTER.  IN DOING SO, HOWEVER, HE ACTED PURSUANT
TO THE POWER OF THE COURT UNDER RULE 35 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE (FN8) RATHER THAN UNDER ANY THEORY OF CIVIL
CONTEMPT.  INDEED, IN EXPRESS NEGATION OF THE LATTER IDEA, HE STATED
THAT SHOULD SHE ANSWER THE QUESTIONS, "IT COULD HAVE NO EFFECT UPON
THIS PROCEEDING AND NEED NOT BE ACCEPTED AS A PURGE, BECAUSE OF THE
FACT THAT THE TIME HAS PASSED  ...  FOR THE ADMINISTRATION OF JUSTICE
IN THIS CASE TO BE AFFECTED BY IT." 

                                       II. 

PETITIONER CONTENDS THAT THE REFUSALS OF JUNE 26 AND JUNE 30
CONSTITUTED NO MORE THAN A SINGLE CONTEMPT BECAUSE THE QUESTIONS ASKED
ALL RELATED TO IDENTIFICATION OF OTHERS AS COMMUNISTS, AFTER SHE MADE
IT CLEAR ON JUNE 26 THAT SHE WOULD NOT BE AN INFORMER.  SHE URGES THAT
THE SINGLE CONTEMPT WAS COMPLETED ON JUNE 26 SINCE THE AREA OF REFUSAL
WAS "CARVED OUT" ON THAT DAY.  FROM THIS, PETITIONER CONCLUDES THAT NO
CONTEMPT WAS COMMITTED ON JUNE 30 AND THAT IMPOSITION OF CRIMINAL
CONTEMPT SENTENCES FOR REFUSALS OF THAT DAY TO ANSWER VIOLATES DUE
PROCESS GUARANTIES. 

A WITNESS, OF COURSE, CANNOT "PICK AND CHOOSE" THE QUESTIONS TO WHICH
AN ANSWER WILL BE GIVEN.  THE MANAGEMENT OF THE TRIAL RESTS WITH THE
JUDGE AND NO PARTY CAN BE PERMITTED TO USURP THAT FUNCTION.  SEE UNITED
STATES V. GATES, 176 F.2D 78, 80.  HOWEVER, IT IS EQUALLY CLEAR THAT
THE PROSECUTION CANNOT MULTIPLY CONTEMPTS BY REPEATED QUESTIONING ON
THE SAME SUBJECT OF INQUIRY WITHIN WHICH A RECALCITRANT WITNESS ALREADY
HAS REFUSED ANSWERS.  SEE UNITED STATES V. ORMAN, 207 F.2D 148. 

EVEN THOUGH WE ASSUME THE GOVERNMENT CORRECT IN ITS CONTENTION THAT
THE 11 QUESTIONS IN THIS CASE COVERED MORE THAN A SINGLE SUBJECT OF
INQUIRY, IT APPEARS THAT EVERY QUESTION FELL WITHIN THE AREA OF REFUSAL
ESTABLISHED BY PETITIONER ON THE FIRST DAY OF HER CROSS-EXAMINATION. 
THE GOVERNMENT ADMITS, PURSUANT TO THE HOLDING OF UNITED STATES V.
COSTELLO, 198 F.2D 200, THAT ONLY ONE CONTEMPT WOULD RESULT IF MRS.
YATES HAD FLATLY REFUSED ON JUNE 26 TO ANSWER ANY QUESTIONS AND HAD
MAINTAINED SUCH A POSITION.  WE DEEM IT A FORTIORI TRUE THAT WHERE A
WITNESS DRAWS THE LINES OF REFUSAL IN LESS SWEEPING FASHION BY
DECLINING TO ANSWER QUESTIONS WITHIN A GENERALLY DEFINED AREA OF
INTERROGATION, THE PROSECUTOR CANNOT MULTIPLY CONTEMPTS BY FURTHER
QUESTIONS WITHIN THAT AREA.  THE POLICY OF THE LAW MUST BE TO ENCOURAGE
TESTIMONY; A WITNESS WILLING TO TESTIFY FREELY AS TO ALL AREAS OF
INVESTIGATION BUT ONE, SHOULD NOT BE SUBJECT TO MORE NUMEROUS CHARGES
OF CONTEMPT THAN A WITNESS UNWILLING TO GIVE ANY TESTIMONY AT ALL. 

HAVING ONCE CARVED OUT AN AREA OF REFUSAL, PETITIONER REMAINED WITHIN
ITS BOUNDARIES IN ALL HER SUBSEQUENT REFUSALS.  THE SLIGHT MODIFICATION
ON JUNE 30 OF THE AREA OF REFUSAL DID NOT CARRY BEYOND THE BOUNDARIES
ALREADY ESTABLISHED.  WHEREAS ON JUNE 26 THE WITNESS REFUSED TO
IDENTIFY OTHER PERSONS AS COMMUNISTS, ON JUNE 30 SHE REFUSED TO DO SO
ONLY IF THOSE PERSONS WOULD BE HURT BY HER IDENTIFICATION.  ALTHOUGH
THE LATTER BASIS IS NOT IDENTICAL TO THE FORMER, THE AREA OF REFUSAL
SET OUT BY IT NECESSARILY FELL WITHIN THE LIMITS DRAWN ON JUNE 26.  WE
AGREE WITH PETITIONER THAT ONLY ONE CONTEMPT IS SHOWN ON THE FACTS OF
THIS CASE. 

THAT CONCLUSION, HOWEVER, DOES NOT ESTABLISH PETITIONER'S CONTENTION
THAT NO CONTEMPT WHATSOEVER WAS COMMITTED BY HER REFUSAL TO ANSWER THE
11 QUESTIONS OF JUNE 30.  THE CONTEMPT OF THIS CASE, ALTHOUGH SINGLE,
WAS OF A CONTINUING NATURE:  EACH REFUSAL ON JUNE 30 CONTINUED THE
WITNESS' DEFIANCE OF PROPER AUTHORITY.  CERTAINLY A PARTY WHO PERSISTED
IN REFUSING TO PERFORM SPECIFIC ACTS REQUIRED BY A MANDATORY INJUNCTION
WOULD BE IN CONTINUING CONTEMPT OF COURT.  WE SEE NO MEANINGFUL
DISTINCTION BETWEEN THAT SITUATION AND PETITIONER'S PERSISTENT REFUSAL
TO ANSWER QUESTIONS WITHIN A DEFINED AREA. 

THOUGH THERE WAS BUT ONE CONTEMPT, IMPOSITION OF THE CIVIL SENTENCE
FOR THE REFUSALS OF JUNE 26 IS NO BARRIER TO CRIMINAL PUNISHMENT FOR
THE REFUSALS OF JUNE 30.  THE CIVIL AND CRIMINAL SENTENCES SERVED
DISTINCT PURPOSES, THE ONE COERCIVE, THE OTHER PUNITIVE AND DETERRENT;
THAT THE SAME ACT MAY GIVE RISE TO THESE DISTINCT SANCTIONS PRESENTS NO
DOUBLE JEOPARDY PROBLEM.  REX TRAILER CO. V. UNITED STATES, 350 U.S.
148, 150 (1956); UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258,
299 (1947).  (FN9)  CLEARLY, IF THE CIVIL AND CRIMINAL SENTENCES COULD
HAVE BEEN IMPOSED SIMULTANEOUSLY BY THE COURT ON JUNE 26, AS THE UNITED
MINE WORKERS CASE HOLDS, IT SCARCELY CAN BE ARGUED THAT THE COURT'S
FAILURE TO INVOKE THE CRIMINAL SANCTION UNTIL JUNE 30 WAS FATAL TO ITS
CRIMINAL CONTEMPT POWERS.  INDEED, THE MORE SALUTARY PROCEDURE WOULD
APPEAR TO BE THAT A COURT SHOULD FIRST APPLY COERCIVE REMEDIES IN AN
EFFORT TO PERSUADE A PARTY TO OBEY ITS ORDERS, AND ONLY MAKE USE OF THE
MORE DRASTIC CRIMINAL SANCTIONS WHEN THE DISOBEDIENCE CONTINUES.  HAD
THE COURT IMPOSED A CIVIL SENTENCE AND FOUND PETITIONER GUILTY OF
CRIMINAL CONTEMPT ON JUNE 26, IT COULD HAVE POSTPONED IMPOSITION OF A
CRIMINAL SENTENCE UNTIL TERMINATION OF THE PRINCIPAL CASE.  THE
DISTINCTION BETWEEN THAT PROCEDURE AND THE ONE FOLLOWED HERE IS
ENTIRELY FORMAL. 

                                  III. 

WHILE THE SENTENCES IMPOSED WERE CONCURRENT, IT MAY BE THAT THE
COURT'S JUDGMENT AS TO THE PROPER PENALTY WAS AFFECTED BY THE VIEW THAT
PETITIONER HAD COMMITTED 11 SEPARATE CONTEMPTS.  IN ADDITION,
PETITIONER HAS NOW SERVED A TOTAL OF OVER 70 DAYS IN JAIL AWAITING
FINAL DISPOSITION OF THE SEVERAL PROCEEDINGS AGAINST HER.  THE
CONSPIRACY CONVICTION AND ANOTHER CRIMINAL CONTEMPT CONVICTION HAVE
BEEN REVERSED, AND THE SENTENCES IMPOSED HERE HAVE BEEN TERMED "SEVERE"
BY THE COURT OF APPEALS.  227 F.2D 851, 855.  MOREOVER, THE COURT
SHOULD CONSIDER "  ...  THE EXTENT OF THE WILLFUL AND DELIBERATE
DEFIANCE OF THE COURT'S ORDER (AND) THE SERIOUSNESS OF THE CONSEQUENCES
OF THE CONTUMACIOUS BEHAVIOUR  ...  ."  UNITED STATES V. UNITED MINE
WORKERS, SUPRA, AT 303.  IN THIS REGARD, PETITIONER'S UNDERSTANDABLE
RELUCTANCE TO BE AN INFORMER, ALTHOUGH LEGALLY INSUFFICIENT TO EXPLAIN
HER REFUSALS TO ANSWER, IS A FACTOR, AS IS HER APPARENTLY COURTEOUS
DEMEANOR AND THE FACT THAT HER REFUSALS SEEM TO HAVE HAD NO PERCEPTIBLE
EFFECT ON THE OUTCOME OF THE TRIAL.  ALL OF THIS POINTS UP THE
NECESSITY, WE THINK, OF HAVING THE TRIAL JUDGE RECONSIDER THE SENTENCE
IN THE COOL REFLECTION OF SUBSEQUENT EVENTS.  (FN10)    THE CONTEMPT
CONVICTIONS ON SPECIFICATIONS II-XI, INCLUSIVE, ARE REVERSED.  THE
CONTEMPT CONVICTION ON SPECIFICATION I IS AFFIRMED, BUT THE SENTENCE ON
THAT CONVICTION IS VACATED, AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR RESENTENCING IN THE LIGHT OF THIS OPINION.  (FN11)  IT IS SO
ORDERED. 

FN1  THIS COURT REVERSED THE CONVICTIONS IN THE PRINCIPAL CASE. 
YATES V. UNITED STATES, 354 U.S. 298 (1957). 

FN2  AT THE MORNING SESSION PETITIONER INDICATED THAT SHE WOULD
ANSWER QUESTIONS AS TO THE PARTY MEMBERSHIP OF CODEFENDANTS WHO HAD NOT
RESTED THEIR CASES, AND IN FACT SHE DID SO. 

FN3  THE TRIAL ENDED ON AUG. 5, 1952.  PETITIONER WAS CONFINED UNDER
THE JUDGMENT OF CONVICTION IN THE PRINCIPAL CASE UNTIL AUG. 30, 1952,
WHEN SHE WAS RELEASED ON BAIL PENDING APPEAL IN THAT CASE.  SHE WAS
RECONFINED ON SEPT. 4, 1952, THIS TIME UNDER THE CIVIL CONTEMPT ORDER
OF JUNE 26.  SHE WAS RELEASED ON BAIL ON SEPT. 6, 1952, PENDING APPEAL
FROM THE ORDER DIRECTING HER RECONFINEMENT.  THAT ORDER WAS REVERSED ON
APPEAL ON THE GROUND THAT PETITIONER COULD NOT PURGE HERSELF OF THE
CIVIL CONTEMPT SINCE THE TRIAL HAD ENDED.  YATES V. UNITED STATES, 227
F.2D 844.  PETITIONER WAS AGAIN CONFINED ON SEPT. 8, 1952, AFTER THE
DISTRICT COURT, ON THAT SAME DAY, ADJUDGED HER IN CRIMINAL CONTEMPT OF
COURT FOR HER JUNE 26 REFUSALS TO ANSWER.  SHE WAS RELEASED ON BAIL ON
SEPT. 11, 1952, PENDING APPEAL FROM THAT JUDGMENT, WHICH WAS LATER
REVERSED ON APPEAL BECAUSE THE DISTRICT JUDGE HAD GIVEN HER NO NOTICE
AT THE TIME OF THE TRIAL THAT HE EXPECTED TO HOLD HER IN CRIMINAL
CONTEMPT FOR THE JUNE 26 REFUSALS.  YATES V. UNITED STATES, 227 F.2D
848.  NEITHER THE CIVIL NOR THE CRIMINAL CONTEMPT SENTENCES FOR THE
JUNE 26 REFUSALS, NOR THEIR REVERSALS, ARE UNDER REVIEW IN THE PRESENT
CASE. 

FN4  A CRIMINAL CONTEMPT MAY BE PUNISHED SUMMARILY IF THE JUDGE
CERTIFIES THAT HE SAW OR HEARD THE CONDUCT CONSTITUTING THE CONTEMPT
AND THAT IT WAS COMMITTED IN THE ACTUAL PRESENCE OF THE COURT.  THE
ORDER OF CONTEMPT SHALL RECITE THE FACTS AND SHALL BE SIGNED BY THE
JUDGE AND ENTERED OF RECORD." 

FN5  "SEC.  401.  POWER OF COURT. 

"A COURT OF THE UNITED STATES SHALL HAVE POWER TO PUNISH BY FINE OR
IMPRISONMENT, AT ITS DISCRETION, SUCH CONTEMPT OF ITS AUTHORITY, AND
NONE OTHER, AS: 

"(1)  MISBEHAVIOR OF ANY PERSON IN ITS PRESENCE OR SO NEAR THERETO AS
TO OBSTRUCT THE ADMINISTRATION OF JUSTICE. 

"(2)  MISBEHAVIOR OF ANY OF ITS OFFICERS IN THEIR OFFICIAL
TRANSACTIONS. 

"(3)  DISOBEDIENCE OR RESISTANCE TO ITS LAWFUL WRIT, PROCESS, ORDER,
RULE, DECREE, OR COMMAND." 

FN6  STANSBURY, REPORT OF THE TRIAL OF JAMES H. PECK (1833). 

FN7  SEE NOTE 5, SUPRA. 

FN8  "CORRECTION OR REDUCTION OF SENTENCE. 

"  ...  THE COURT MAY REDUCE A SENTENCE WITHIN 60 DAYS AFTER THE
SENTENCE IS IMPOSED  ...  ." 

FN9  NOR DOES THE FINDING OF A SINGLE CONTEMPT MEAN THAT THE CRIMINAL
CONTEMPT SENTENCE UNDER REVIEW IN THIS CASE CONSTITUTES DOUBLE JEOPARDY
BECAUSE THE COURT ALSO IMPOSED A CRIMINAL CONTEMPT SENTENCE FOR THE
JUNE 26 REFUSALS.  THE LATTER WAS REVERSED ON APPEAL, NOTE 3, SUPRA,
AND IN ANY EVENT WAS IMPOSED AFTER THE CRIMINAL CONTEMPT SENTENCE FOR
THE JUNE 30 REFUSALS. 

FN10  IN ADDITION, THE SENTENCES IMPOSED WERE ORDERED TO COMMENCE
UPON COMPLETION OF THE FIVE-YEAR SENTENCE IN THE CONSPIRACY CASE. 
REVERSAL OF THE CONSPIRACY CONVICTION HAS RENDERED UNCERTAIN THE DATE
AT WHICH THE SENTENCES HERE IMPOSED WOULD BEGIN. 

FN11  CF. NILVA V. UNITED STATES, 352 U.S. 385, 396 (1957). 

MR. JUSTICE BURTON AGREES WITH THE COURT OF APPEALS AND THE TRIAL
COURT THAT PETITIONER'S REFUSALS TO ANSWER WHEN ORDERED TO DO SO BY THE
TRIAL COURT ON JUNE 30 CONSTITUTED AT LEAST NINE CONTEMPTS OF COURT. 
HOWEVER, IN VIEW OF ALL THE CIRCUMSTANCES, HE NOW JOINS IN THE JUDGMENT
OF THIS COURT REMANDING THE CASE FOR RESENTENCING. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THIS CASE TO ME IS A SHOCKING INSTANCE OF THE ABUSE OF JUDICIAL
AUTHORITY.  IT IS WITHOUT PRECEDENT IN THE BOOKS. 

MRS. YATES, NOT WANTING TO BE AN INFORMER, REFUSED ON CROSS
EXAMINATION TO ANSWER FOUR QUESTIONS CONCERNING THE COMMUNIST PARTY
AFFILIATIONS OF ANY CODEFENDANT WHO HAD RESTED HIS CASE OR ANY OTHER
PERSON WHO MIGHT BE SUBJECT TO PERSECUTION BY SUCH A DISCLOSURE. 

FOR THIS, HER FIRST REFUSAL, SHE WAS GIVEN HER FIRST SENTENCE AND
CONFINED IN JAIL FOR 70 DAYS.  (FN1)  ON THE THIRD DAY OF HER CROSS
EXAMINATION SHE WAS ASKED 11 MORE QUESTIONS ALONG THE SAME LINE AND,
ADHERING TO HER ORIGINAL POSITION, REMAINED ADAMANT IN HER REFUSAL TO
ANSWER.  THE DISTRICT JUDGE TOLD MRS. YATES THAT HE INTENDED TO TREAT
HER REFUSALS TO ANSWER AS 11 SEPARATE CRIMINAL CONTEMPTS, BUT INDICATED
THAT HE WOULD DEFER ACTION ON THE CRIMINAL CONTEMPT FOR THE SECOND
REFUSAL FOR THE DURATION OF THE TRIAL.  THE CONVICTION FOR CRIMINAL
CONTEMPT BECAUSE OF HER SECOND REFUSAL TO TESTIFY WAS AFFIRMED BY THE
COURT OF APPEALS (227 F.2D 851) AND IS NOW AFFIRMED BY THIS COURT. 
(FN2) 

FIRST.  ONE REASON I WOULD REVERSE IS THAT THIS IS A TRANSPARENT
ATTEMPT TO MULTIPLY OFFENSES.  THE ONE OFFENSE WHICH MRS. YATES
COMMITTED WAS HER FIRST REFUSAL TO ANSWER.  HER SECOND REFUSAL WAS
MERELY THE MAINTENANCE OF THE SAME POSITION SHE TOOK AT THE START OF
HER CROSS-EXAMINATION.  I DO NOT THINK A PROSECUTOR SHOULD BE ALLOWED
TO MULTIPLY THE CONTEMPTS BY REPEATING THE QUESTIONS.  THE CORRECT
RULE, I BELIEVE, IS STATED IN UNITED STATES V. COSTELLO, 198 F.2D 200,
204. 

"CERTAINLY THE REFUSAL TO TESTIFY WAS AN ACT IN CONTEMPT OF THE
COMMITTEE FOR WHICH THE DEFENDANT WAS SUBJECT TO THE PUNISHMENT
PRESCRIBED BY THE STATUTE.  BUT WHEN THE DEFENDANT MADE HIS POSITION
CLEAR, THE COMMITTEE COULD NOT MULTIPLY THE CONTEMPT, AND THE
PUNISHMENT, BY CONTINUING TO ASK HIM QUESTIONS EACH TIME ELICITING THE
SAME ANSWER: HIS REFUSAL TO GIVE ANY TESTIMONY.  IN OTHER WORDS, THE
CONTEMPT WAS TOTAL WHEN HE STATED THAT HE WOULD NOT TESTIFY, AND THE
REFUSALS THEREAFTER TO ANSWER SPECIFIC QUESTIONS CAN NOT BE CONSIDERED
AS ANYTHING MORE THAN EXPRESSIONS OF HIS INTENTION TO ADHERE TO HIS
EARLIER STATEMENT AND AS SUCH WERE NOT SEPARATELY PUNISHABLE." 

OR, AS STATED IN UNITED STATES V. ORMAN, 207 F.2D 148, 160. 

"  ...  WHERE THE SEPARATE QUESTIONS SEEK TO ESTABLISH BUT A SINGLE
FACT, OR RELATE TO BUT A SINGLE SUBJECT OF INQUIRY, ONLY ONE PENALTY
FOR CONTEMPT MAY BE IMPOSED." 

ANY OTHER RULE GIVES THE PROSECUTOR AND THE JUDGE THE AWFUL POWER TO
CREATE CRIMES AS THEY CHOOSE.   BECAUSE OF THE PROSECUTOR'S EFFORTS TO
MULTIPLY THE OFFENSE BY CONTINUING THE LINE OF QUESTIONS, MRS. YATES'
SECOND REFUSAL TO ANSWER, FOLLOWING CONSISTENTLY THE POSITION SHE HAD
MADE CLEAR TO THE COURT UPON THE FIRST DAY OF HER CROSS-EXAMINATION,
WAS NOT A CONTEMPT.  HER SECOND REFUSAL TO ANSWER WAS MERELY A FAILURE
TO PURGE (FN3) HERSELF OF THE FIRST CONTEMPT, NOT A NEW ONE. 

SECOND.  MRS. YATES MIGHT HAVE BEEN SUBJECTED TO CRIMINAL PENALTIES
AS WELL AS CIVIL COERCION FOR THE CONTEMPT SHE COMMITTED UPON HER FIRST
REFUSAL TO TESTIFY.  SEE PENFIELD CO. V. S.E.C., 330 U.S. 585; UNITED
STATES V. UNITED MINE WORKERS, 330 U.S. 258.  THE DISTRICT JUDGE IN
FACT ATTEMPTED TO IMPOSE A THREE-YEAR CRIMINAL SENTENCE FOR HER FIRST
REFUSAL TO ANSWER; BUT HE WAS REVERSED BY THE COURT OF APPEALS FOR HIS
FAILURE TO GIVE HER THE NECESSARY NOTICE DURING THE PENDENCY OF THE
TRIAL.  YATES V. UNITED STATES, 227 F.2D 848. 

WHAT THE COURT NOW DOES IS TO MAKE THE PRESENT CONVICTION DO SERVICE
FOR THE INVALID CONVICTION FOR HER FIRST REFUSAL TO TESTIFY.  THIS
CANNOT BE DONE UNLESS WE ARE TO MAKE A RULE TO FIT THIS CASE ONLY. 

FN1  THE TRIAL JUDGE WAS NOT THROUGH WITH MRS. YATES.  IN HIS VIEW,
THE FIRST OR "COERCIVE" CIVIL CONTEMPT ORDER REMAINED IN EFFECT SO LONG
AS THE JUDGMENT OF CONVICTION IN THE MAIN CASE WAS PENDING ON APPEAL. 
THE COURT OF APPEALS ORDERED HER RELEASED (YATES V. UNITED STATES, 227
F.2D 844) ON THE GROUND THAT CONFINEMENT FOR CIVIL CONTEMPT IS NOT
PERMISSIBLE AFTER THE TERMINATION OF THE TRIAL. 

FN2  PETITIONER HAS NOT URGED THAT THIS CHARGE OF CRIMINAL CONTEMPT
SHOULD HAVE BEEN TRIED BEFORE SOME OTHER JUDGE.  CF. OFFUTT V. UNITED
STATES, 348 U.S. 11.  NOR HAS PETITIONER CONTENDED THAT SHE COULD BE
HELD ONLY ON INDICTMENT BY A GRAND JURY, OR TRIED ONLY BY A JURY, OR
PROSECUTED WITHOUT THE OTHER PROCEDURAL SAFEGUARDS OF THE FIFTH AND
SIXTH AMENDMENTS. 

FN3  THIS IS APPARENT FROM WHAT TRANSPIRED WHEN MRS. YATES APPEARED
BEFORE THE TRIAL JUDGE IN THIS CASE: 

"I HAD HOPED BY THIS TIME THAT MRS. YATES MIGHT BE WILLING TO PURGE
HERSELF; THAT SHE MIGHT BE PROMPTED TO DO SO." 

"  ...  AS I VIEW IT, THE COURT, IN ITS DISCRETION, MIGHT TREAT
ANSWERS NOW TO THE QUESTIONS AS A VINDICATION OF JUDICIAL AUTHORITY AND
TREAT IT AS PURGED." 

"I TAKE IT FROM THE DEFENDANT'S STATEMENT THAT SHE IS AS ADAMANT NOW
AS SHE WAS THE DAY THE QUESTIONS WERE PUT." 

"I HOPE MRS. YATES WILL YET PURGE HERSELF.  I THINK, IN OFFERING TO
ACCEPT HER ANSWERS NOW AS A PURGE IS A HUMANE, MERCIFUL THING TO DO
UNDER THE CIRCUMSTANCES. 

"I AM NOT INTERESTED IN IMPRISONING MRS. YATES.  I AM INTERESTED IN
VINDICATING THE AUTHORITY OF THIS COURT, WHICH I FEEL MUST BE
VINDICATED WHEN ANYONE WILFULLY REFUSES TO OBEY A LAWFUL ORDER OF THE
COURT. 

"IF SHE AT ANY TIME WITHIN 60 DAYS, WHILE I HAVE THE AUTHORITY TO
MODIFY THIS SENTENCE UNDER THE RULES, WISHES TO PURGE HERSELF, I WILL
BE INCLINED EVEN AT THAT LATE DATE TO ACCEPT HER SUBMISSION TO THE
AUTHORITY OF THE COURT." 
..END :









ROSENBLOOM V. UNITED STATES 355 U.S. 80 


NO. 451.  DECIDED NOVEMBER 25, 1957 - CERTIORARI GRANTED.  - 246 F.2D
608, REVERSED AND REMANDED. 


IN THE CIRCUMSTANCES OF THIS CASE, THE COURT OF APPEALS ERRED IN
HOLDING THAT PETITIONER'S NOTICE OF APPEAL FROM HIS CONVICTION OF A
CRIME WAS UNTIMELY.  THEREFORE, ITS JUDGMENT IS REVERSED AND THE CASE
IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

ROSENBLOOM V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED.  THE COURT OF
APPEALS HAS HELD, WITHOUT OPINION, THAT PETITIONER'S NOTICE OF APPEAL
FROM THE DISTRICT COURT, FILED ON JULY 8, 1957, WAS UNTIMELY.  THE
GOVERNMENT HAS CONCEDED THAT THE CLERK OF THE DISTRICT COURT DID NOT
MAIL TO PETITIONER OR HIS ATTORNEY A NOTICE OF THE ENTRY OF THE ORDER
OF JUNE 14 DENYING PETITIONER'S MOTION FOR A NEW TRIAL AND JUDGMENT OF
ACQUITTAL, AS REQUIRED BY RULE 49(C), FEDERAL RULES OF CRIMINAL
PROCEDURE.  IN OUR OPINION THE RECORD IN THIS CASE FAILS TO SHOW WITH
SUFFICIENT CERTAINTY THAT PETITIONER OR HIS ATTORNEY HAD ACTUAL NOTICE
OF THE ENTRY OF THAT ORDER BY REASON OF THE PROCEEDINGS WHICH TOOK
PLACE IN THE DISTRICT COURT ON JUNE 14.*  CF. HUFF V. UNITED STATES,
192 F.2D 911; GONZALEZ V. UNITED STATES, 233 F.2D 825, 827, REVERSED ON
OTHER GROUNDS, 352 U.S. 978.  WHAT TRANSPIRED AT THOSE PROCEEDINGS IS
TOO AMBIGUOUS TO PERMIT THE CONCLUSION THAT PETITIONER AND HIS ATTORNEY
WERE NOT JUSTIFIED IN BELIEVING THAT PETITIONER'S TIME TO APPEAL WOULD
BEGIN TO RUN ON JULY 8.  IN THESE CIRCUMSTANCES WE THINK THAT THE COURT
OF APPEALS ERRED IN HOLDING THAT PETITIONER'S NOTICE OF APPEAL WAS
UNTIMELY.  RULE 37(A)(2), FED. RULES CRIM. PROC.; SEE CARTER V. UNITED
STATES, 168 F.2D 310.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED
AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. 

*THE RECORD SHOWS THE FOLLOWING: 

"THE COURT: 

     *         *         *         *         * 

"DO YOU WANT SOME TIME FOR YOUR CLIENT BEFORE HE TURNS IN? 

"MR. SHAW:  YOUR HONOR, I WAS GOING TO ASK FOR SOME TIME IN WHICH TO
GET HIS AFFAIRS STRAIGHTENED OUT, AND WITHIN WHICH TO FILE AN APPEAL,
SHOULD WE SO DESIRE TO DO. 

"THE COURT:  VERY WELL.  IF YOU FILE AN APPEAL, OF COURSE, IF YOU
APPLY FOR BOND, I WILL TELL YOU NOW THAT I WILL GRANT YOU BOND.  BE
PERMITTED TO GO UNDER THE BOND YOU ARE UNDER NOW.  HOW MUCH TIME DO YOU
WANT? 

"MR. SHAW:  ABOUT TWO WEEKS, YOUR HONOR. 

"THE COURT:  HOW ABOUT MONDAY, JULY 1ST, OR DO YOU WANT IT THE 8TH,
THE FOLLOWING MONDAY? 

"MR. SHAW:  THAT WILL BE ALL RIGHT. 

"THE COURT:  BE GIVEN UNTIL JULY 8TH. 

"MR. SHAW:  THANK YOU." 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE CLARK CONCURS, DISSENTING. 

PETITIONER WAS PRESENT IN OPEN COURT WITH HIS ATTORNEY AT THE TIME
THE COURT OVERRULED HIS MOTION FOR A NEW TRIAL.  HE THUS HAD ACTUAL
NOTICE OF THE DENIAL OF HIS MOTION AND WAS NOT ENTITLED TO RELY UPON AN
ADDITIONAL NOTICE IN WRITING FROM THE CLERK TO THE SAME EFFECT.  THE
COLLOQUY QUOTED BY THE COURT TOOK PLACE LATER, "AFTER CALLING OTHER
MOTIONS IN OTHER CASES."  AT THAT TIME THIS CASE "WAS AGAIN CALLED BY
THE JUDGE AND THE PROCEEDINGS AS INDICATED IN THE TRANSCRIPT OF THE
OFFICIAL COURT REPORTER TOOK PLACE."  ESPECIALLY IN THE LIGHT OF THE
TIME INTERVAL BETWEEN THE DENIAL OF THE MOTION AND THE COLLOQUY QUOTED
IN THE OPINION, I BELIEVE THE COURT OF APPEALS WAS JUSTIFIED IN
CONCLUDING THAT PETITIONER'S COUNSEL SHOULD HAVE UNDERSTOOD THAT HIS
MOTION HAD BEEN DENIED ON JUNE 14. 
..END :














IN RE LATIMER 355 U.S. 82 


NO. 147, MISC.  DECIDED NOVEMBER 25, 1957 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 11 ILL. 2D 327, 143, N.E.2D 20. 


IN RE LATIMER. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















CONLEY V. GIBSON 355 U.S. 41 


NO. 7.  ARGUED OCTOBER 21, 1957 - DECIDED NOVEMBER 18, 1957 - 229 F.2D
436, REVERSED. 


PETITIONERS, WHO ARE NEGRO MEMBERS OF A UNION DESIGNATED AS THEIR
BARGAINING AGENT UNDER THE RAILWAY LABOR ACT, BROUGHT A CLASS SUIT
AGAINST THE UNION, ITS BROTHERHOOD AND CERTAIN OF THEIR OFFICERS TO
COMPEL THEM TO REPRESENT PETITIONERS WITHOUT DISCRIMINATION IN
PROTECTION OF THEIR EMPLOYMENT AND SENIORITY RIGHTS UNDER A CONTRACT
BETWEEN THE UNION AND THE RAILROAD.  THEY ALLEGED THAT THE RAILROAD HAD
PURPORTED TO ABOLISH 45 JOBS HELD BY PETITIONERS AND OTHER NEGROES BUT
HAD EMPLOYED WHITES IN THE SAME JOBS (EXCEPT IN A FEW INSTANCES IN
WHICH IT HAD REHIRED NEGROES TO FILL THEIR OLD JOBS WITH LOSS OF
SENIORITY) AND THAT, DESPITE REPEATED PLEAS, THE UNION HAD DONE NOTHING
TO PROTECT PETITIONERS FROM SUCH DISCRIMINATORY DISCHARGES.  THE
DISTRICT COURT DISMISSED THE SUIT ON THE GROUND THAT THE NATIONAL
RAILROAD ADJUSTMENT BOARD HAD EXCLUSIVE JURISDICTION OVER THE
CONTROVERSY.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  IT WAS ERROR TO DISMISS THE COMPLAINT FOR WANT OF JURISDICTION. 
ADJUSTMENT BOARD EXCLUSIVE JURISDICTION ONLY OVER "DISPUTES BETWEEN AN
EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER OR CARRIERS," WHEREAS THIS
IS A SUIT BY EMPLOYEES AGAINST THEIR BARGAINING AGENT TO ENFORCE THEIR
STATUTORY RIGHT NOT TO BE DISCRIMINATED AGAINST BY IT IN BARGAINING. 
PP. 44-45. 

2.  THE RAILROAD WAS NOT AN INDISPENSABLE PARTY TO THIS SUIT, AND
FAILURE TO JOIN IT WAS NOT A GROUND FOR DISMISSING THE SUIT.  P. 45. 

3.  THE COMPLAINT ADEQUATELY SET FORTH A CLAIM UPON WHICH RELIEF
COULD BE GRANTED.  PP.  45-48. 

(A)  THE FACT THAT, UNDER THE RAILWAY LABOR ACT, AGGRIEVED EMPLOYEES
CAN FILE THEIR OWN GRIEVANCES WITH THE ADJUSTMENT BOARD OR SUE THE
EMPLOYER FOR BREACH OF CONTRACT IS NO JUSTIFICATION FOR THE UNION'S
ALLEGED DISCRIMINATION IN REFUSING TO REPRESENT PETITIONERS.  P. 47. 

(B)  FAILURE OF THE COMPLAINT TO SET FORTH SPECIFIC FACTS TO SUPPORT
ITS GENERAL ALLEGATIONS OF DISCRIMINATION WAS NOT A SUFFICIENT GROUND
FOR DISMISSAL OF THE SUIT, SINCE THE FEDERAL RULES OF CIVIL PROCEDURE
DO NOT REQUIRE A CLAIMANT TO SET OUT IN DETAIL THE FACTS UPON WHICH HE
BASES HIS CLAIM.  PP. 47-48. 

CONLEY ET AL. V. GIBSON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN NEGRO EMPLOYEES ARE HERE UNDER THE RAILWAY LABOR ACT (FN1)
ASKING THAT THEIR COLLECTIVE BARGAINING AGENT BE COMPELLED TO REPRESENT
THEM FAIRLY.  IN A SERIES OF CASES BEGINNING WITH STEELE V. LOUISVILLE
& NASHVILLE R. CO., 323 U.S. 192, THIS COURT HAS EMPHATICALLY AND
REPEATEDLY RULED THAT AN EXCLUSIVE BARGAINING AGENT UNDER THE RAILWAY
LABOR ACT IS OBLIGATED TO REPRESENT ALL EMPLOYEES IN THE BARGAINING
UNIT FAIRLY AND WITHOUT DISCRIMINATION BECAUSE OF RACE AND HAS HELD
THAT THE COURTS HAVE POWER TO PROTECT EMPLOYEES AGAINST SUCH INVIDIOUS
DISCRIMINATION.  (FN2) 

THIS CLASS SUIT WAS BROUGHT IN A FEDERAL DISTRICT COURT IN TEXAS BY
CERTAIN NEGRO MEMBERS OF THE BROTHERHOOD OF RAILWAY AND STEAMSHIP
CLERKS, PETITIONERS HERE, ON BEHALF OF THEMSELVES AND OTHER NEGRO
EMPLOYEES SIMILARLY SITUATED AGAINST THE BROTHERHOOD, ITS LOCAL UNION
NO. 28 AND CERTAIN OFFICERS OF BOTH.  IN SUMMARY, THE COMPLAINT MADE
THE FOLLOWING ALLEGATIONS RELEVANT TO OUR DECISION:  PETITIONERS WERE
EMPLOYEES OF THE TEXAS AND NEW ORLEANS RAILROAD AT ITS HOUSTON FREIGHT
HOUSE.  LOCAL 28 OF THE BROTHERHOOD WAS THE DESIGNATED BARGAINING AGENT
UNDER THE RAILWAY LABOR ACT FOR THE BARGAINING UNIT TO WHICH
PETITIONERS BELONGED.  A CONTRACT EXISTED BETWEEN THE UNION AND THE
RAILROAD WHICH GAVE THE EMPLOYEES IN THE BARGAINING UNIT CERTAIN
PROTECTION FROM DISCHARGE AND LOSS OF SENIORITY.  IN MAY 1954, THE
RAILROAD PURPORTED TO ABOLISH 45 JOBS HELD BY PETITIONERS OR OTHER
NEGROES ALL OF WHOM WERE EITHER DISCHARGED OR DEMOTED.  IN TRUTH THE 45
JOBS WERE NOT ABOLISHED AT ALL BUT INSTEAD FILLED BY WHITES AS THE
NEGROES WERE OUSTED, EXCEPT FOR A FEW INSTANCES WHERE NEGROES WERE
REHIRED TO FILL THEIR OLD JOBS BUT WITH LOSS OF SENIORITY.  DESPITE
REPEATED PLEAS BY PETITIONERS, THE UNION, ACTING ACCORDING TO PLAN, DID
NOTHING TO PROTECT THEM AGAINST THESE DISCRIMINATORY DISCHARGES AND
REFUSED TO GIVE THEM PROTECTION COMPARABLE TO THAT GIVEN WHITE
EMPLOYEES.  THE COMPLAINT THEN WENT ON TO ALLEGE THAT THE UNION HAD
FAILED IN GENERAL TO REPRESENT NEGRO EMPLOYEES EQUALLY AND IN GOOD
FAITH.  IT CHARGED THAT SUCH DISCRIMINATION CONSTITUTED A VIOLATION OF
PETITIONERS' RIGHT UNDER THE RAILWAY LABOR ACT TO FAIR REPRESENTATION
FROM THEIR BARGAINING AGENT.  AND IT CONCLUDED BY ASKING FOR RELIEF IN
THE NATURE OF DECLARATORY JUDGMENT, INJUNCTION AND DAMAGES. 

THE RESPONDENTS APPEARED AND MOVED TO DISMISS THE COMPLAINT ON SEVERAL
GROUNDS: (1) THE NATIONAL RAILROAD ADJUSTMENT BOARD HAD EXCLUSIVE
JURISDICTION OVER THE CONTROVERSY; (2) THE TEXAS AND NEW ORLEANS
RAILROAD, WHICH HAD NOT BEEN JOINED, WAS AN INDISPENSABLE PARTY
DEFENDANT; AND (3) THE COMPLAINT FAILED TO STATE A CLAIM UPON WHICH
RELIEF COULD BE GIVEN.  THE DISTRICT COURT GRANTED THE MOTION TO
DISMISS HOLDING THAT CONGRESS HAD GIVEN THE ADJUSTMENT BOARD EXCLUSIVE
JURISDICTION OVER THE CONTROVERSY.  THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT, APPARENTLY RELYING ON THE SAME GROUND, AFFIRMED.  229 F.2D
436.  SINCE THE CASE RAISED AN IMPORTANT QUESTION CONCERNING THE
PROTECTION OF EMPLOYEE RIGHTS UNDER THE RAILWAY LABOR ACT WE GRANTED
CERTIORARI.  352 U.S. 818. 

WE HOLD THAT IT WAS ERROR FOR THE COURTS BELOW TO DISMISS THE
COMPLAINT FOR LACK OF JURISDICTION.  THEY TOOK THE POSITION THAT SEC. 3
FIRST (I) OF THE RAILWAY LABOR ACT CONFERRED EXCLUSIVE JURISDICTION ON
THE ADJUSTMENT BOARD BECAUSE THE CASE, IN THEIR VIEW, INVOLVED THE
INTERPRETATION AND APPLICATION OF THE COLLECTIVE BARGAINING AGREEMENT. 
BUT SEC. 3 FIRST (I) BY ITS OWN TERMS APPLIES ONLY TO "DISPUTES BETWEEN
AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER OR CARRIERS."  (FN3)
THIS CASE INVOLVES NO DISPUTE BETWEEN EMPLOYEE AND EMPLOYER BUT TO THE
CONTRARY IS A SUIT BY EMPLOYEES AGAINST THE BARGAINING AGENT TO ENFORCE
THEIR STATUTORY RIGHT NOT TO BE UNFAIRLY DISCRIMINATED AGAINST BY IT IN
BARGAINING.  (FN4)  THE ADJUSTMENT BOARD HAS NO POWER UNDER SEC. 3
FIRST (I) OR ANY OTHER PROVISION OF THE ACT TO PROTECT THEM FROM SUCH
DISCRIMINATION.  FURTHERMORE, THE CONTRACT BETWEEN THE BROTHERHOOD AND
THE RAILROAD WILL BE, AT MOST, ONLY INCIDENTALLY INVOLVED IN RESOLVING
THIS CONTROVERSY BETWEEN PETITIONERS AND THEIR BARGAINING AGENT. 

ALTHOUGH THE DISTRICT COURT DID NOT PASS ON THE OTHER REASONS
ADVANCED FOR DISMISSAL OF THE COMPLAINT WE THINK IT TIMELY AND PROPER
FOR US TO CONSIDER THEM HERE.  THEY HAVE BEEN BRIEFED AND ARGUED BY
BOTH PARTIES AND THE RESPONDENTS URGE THAT THE DECISION BELOW BE
UPHELD, IF NECESSARY, ON THESE OTHER GROUNDS. 

AS IN THE COURTS BELOW, RESPONDENTS CONTEND THAT THE TEXAS AND NEW
ORLEANS RAILROAD COMPANY IS AN INDISPENSABLE PARTY WHICH THE
PETITIONERS HAVE FAILED TO JOIN AS A DEFENDANT.  ON THE BASIS OF THE
ALLEGATIONS MADE IN THE COMPLAINT AND THE RELIEF DEMANDED BY
PETITIONERS WE BELIEVE THAT CONTENTION IS UNJUSTIFIABLE.  WE CANNOT SEE
HOW THE RAILROAD'S RIGHTS OR INTERESTS WILL BE AFFECTED BY THIS ACTION
TO ENFORCE THE DUTY OF THE BARGAINING REPRESENTATIVE TO REPRESENT
PETITIONER FAIRLY.  THIS IS NOT A SUIT, DIRECTLY OR INDIRECTLY, AGAINST
THE RAILROAD.  NO RELIEF IS ASKED FROM IT AND THERE IS NO PROSPECT THAT
ANY WILL OR CAN BE GRANTED WHICH WILL BIND IT.  IF AN ISSUE DOES
DEVELOP WHICH NECESSITATES JOINING THE RAILROAD EITHER IT OR THE
RESPONDENTS WILL HAVE AN ADEQUATE OPPORTUNITY TO REQUEST JOINDER. 

TURNING TO RESPONDENTS' FINAL GROUND, WE HOLD THAT UNDER THE GENERAL
PRINCIPLES LAID DOWN IN THE STEELE, GRAHAM, AND HOWARD CASES THE
COMPLAINT ADEQUATELY SET FORTH A CLAIM UPON WHICH RELIEF COULD BE
GRANTED.  IN APPRAISING THE SUFFICIENCY OF THE COMPLAINT WE FOLLOW, OF
COURSE, THE ACCEPTED RULE THAT A COMPLAINT SHOULD NOT BE DISMISSED FOR
FAILURE TO STATE A CLAIM UNLESS IT APPEARS BEYOND DOUBT THAT THE
PLAINTIFF CAN PROVE NO SET OF FACTS IN SUPPORT OF HIS CLAIM WHICH WOULD
ENTITLE HIM TO RELIEF.  (FN5)  HERE, THE COMPLAINT ALLEGED, IN PART,
THAT PETITIONERS WERE DISCHARGED WRONGFULLY BY THE RAILROAD AND THAT
THE UNION, ACTING ACCORDING TO PLAN, REFUSED TO PROTECT THEIR JOBS AS
IT DID THOSE OF WHITE EMPLOYEES OR TO HELP THEM WITH THEIR GRIEVANCES
ALL BECAUSE THEY WERE NEGROES.  IF THESE ALLEGATIONS ARE PROVEN THERE
HAS BEEN A MANIFEST BREACH OF THE UNION'S STATUTORY DUTY TO REPRESENT
FAIRLY AND WITHOUT HOSTILE DISCRIMINATION ALL OF THE EMPLOYEES IN THE
BARGAINING UNIT.  THIS COURT SQUARELY HELD IN STEELE AND SUBSEQUENT
CASES THAT DISCRIMINATION IN REPRESENTATION BECAUSE OF RACE IS
PROHIBITED BY THE RAILWAY LABOR ACT.  THE BARGAINING REPRESENTATIVE'S
DUTY NOT TO DRAW "IRRELEVANT AND INVIDIOUS" (FN6) DISTINCTIONS AMONG
THOSE IT REPRESENTS DOES NOT COME TO AN ABRUPT END, AS THE RESPONDENTS
SEEM TO CONTEND, WITH THE MAKING OF AN AGREEMENT BETWEEN UNION AND
EMPLOYER.  COLLECTIVE BARGAINING IS A CONTINUING PROCESS.  AMONG OTHER
THINGS, IT INVOLVES DAY-TO-DAY ADJUSTMENTS IN THE CONTRACT AND OTHER
WORKING RULES, RESOLUTION OF NEW PROBLEMS NOT COVERED BY EXISTING
AGREEMENTS, AND THE PROTECTION OF EMPLOYEE RIGHTS ALREADY SECURED BY
CONTRACT.  THE BARGAINING REPRESENTATIVE CAN NO MORE UNFAIRLY
DISCRIMINATE IN CARRYING OUT THESE FUNCTIONS THAN IT CAN IN NEGOTIATING
A COLLECTIVE AGREEMENT.  (FN7)  A CONTRACT MAY BE FAIR AND IMPARTIAL ON
ITS FACE YET ADMINISTERED IN SUCH A WAY, WITH THE ACTIVE OR TACIT
CONSENT OF THE UNION, AS TO BE FLAGRANTLY DISCRIMINATORY AGAINST SOME
MEMBERS OF THE BARGAINING UNIT. 

THE RESPONDENTS POINT TO THE FACT THAT UNDER THE RAILWAY LABOR ACT
AGGRIEVED EMPLOYEES CAN FILE THEIR OWN GRIEVANCES WITH THE ADJUSTMENT
BOARD OR SUE THE EMPLOYER FOR BREACH OF CONTRACT.  GRANTING THIS, IT
STILL FURNISHES NO SANCTION FOR THE UNION'S ALLEGED DISCRIMINATION IN
REFUSING TO REPRESENT PETITIONERS.  THE RAILWAY LABOR ACT, IN AN
ATTEMPT TO AID COLLECTIVE ACTION BY EMPLOYEES, CONFERRED GREAT POWER
AND PROTECTION ON THE BARGAINING AGENT CHOSEN BY A MAJORITY OF THEM. 
AS INDIVIDUALS OR SMALL GROUPS THE EMPLOYEES CANNOT BEGIN TO POSSESS
THE BARGAINING POWER OF THEIR REPRESENTATIVE IN NEGOTIATING WITH THE
EMPLOYER OR IN PRESENTING THEIR GRIEVANCES TO HIM.  NOR MAY A MINORITY
CHOOSE ANOTHER AGENT TO BARGAIN IN THEIR BEHALF.  WE NEED NOT PASS ON
THE UNION'S CLAIM THAT IT WAS NOT OBLIGED TO HANDLE ANY GRIEVANCES AT
ALL BECAUSE WE ARE CLEAR THAT ONCE IT UNDERTOOK TO BARGAIN OR PRESENT
GRIEVANCES FOR SOME OF THE EMPLOYEES IT REPRESENTED IT COULD NOT REFUSE
TO TAKE SIMILAR ACTION IN GOOD FAITH FOR OTHER EMPLOYEES JUST BECAUSE
THEY WERE NEGROES. 

THE RESPONDENTS ALSO ARGUE THAT THE COMPLAINT FAILED TO SET FORTH
SPECIFIC FACTS TO SUPPORT ITS GENERAL ALLEGATIONS OF DISCRIMINATION AND
THAT ITS DISMISSAL IS THEREFORE PROPER.  THE DECISIVE ANSWER TO THIS IS
THAT THE FEDERAL RULES OF CIVIL PROCEDURE DO NOT REQUIRE A CLAIMANT TO
SET OUT IN DETAIL THE FACTS UPON WHICH HE BASES HIS CLAIM.  TO THE
CONTRARY, ALL THE RULES REQUIRE IS "A SHORT AND PLAIN STATEMENT OF THE
CLAIM" (FN8) THAT WILL GIVE THE DEFENDANT FAIR NOTICE OF WHAT THE
PLAINTIFF'S CLAIM IS AND THE GROUNDS UPON WHICH IT RESTS.  THE
ILLUSTRATIVE FORMS APPENDED TO THE RULES PLAINLY DEMONSTRATE THIS. 
SUCH SIMPLIFIED "NOTICE PLEADING" IS MADE POSSIBLE BY THE LIBERAL
OPPORTUNITY FOR DISCOVERY AND THE OTHER PRETRIAL PROCEDURES ESTABLISHED
BY THE RULES TO DISCLOSE MORE PRECISELY THE BASIS OF BOTH CLAIM AND
DEFENSE AND TO DEFINE MORE NARROWLY THE DISPUTED FACTS AND ISSUES. 
(FN9)  FOLLOWING THE SIMPLE GUIDE OF RULE 8(F) THAT "ALL PLEADINGS
SHALL BE SO CONSTRUED AS TO DO SUBSTANTIAL JUSTICE," WE HAVE NO DOUBT
THAT PETITIONERS' COMPLAINT ADEQUATELY SET FORTH A CLAIM AND GAVE THE
RESPONDENTS FAIR NOTICE OF ITS BASIS.  THE FEDERAL RULES REJECT THE
APPROACH THAT PLEADING IS A GAME OF SKILL IN WHICH ONE MISSTEP BY
COUNSEL MAY BE DECISIVE TO THE OUTCOME AND ACCEPT THE PRINCIPLE THAT
THE PURPOSE OF PLEADING IS TO FACILITATE A PROPER DECISION ON THE
MERITS.  CF. MATY V. GRASSELLI CHEMICAL CO., 303 U.S. 197. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT
IS SO ORDERED. 

FN1  44 STAT. 577, AS AMENDED, 45 U.S.C. SEC. 151 ET SEQ. 

FN2  TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 323
U.S. 210; GRAHAM V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 338
U.S. 232; BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768. 
CF. WALLACE CORP. V. LABOR BOARD, 323 U.S. 248; SYRES V. OIL WORKERS
INTERNATIONAL UNION, 350 U.S. 892. 

FN3  IN FULL, SEC. 3 FIRST (I) READS: 

"THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER
OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS, INCLUDING CASES PENDING AND UNADJUSTED ON THE DATE OF
APPROVAL OF THIS ACT (JUNE 21, 1934), SHALL BE HANDLED IN THE USUAL
MANNER UP TO AND INCLUDING THE CHIEF OPERATING OFFICER OF THE CARRIER
DESIGNATED TO HANDLE SUCH DISPUTES; BUT, FAILING TO REACH AN ADJUSTMENT
IN THIS MANNER, THE DISPUTES MAY BE REFERRED BY PETITION OF THE PARTIES
OR BY EITHER PARTY TO THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD
WITH A FULL STATEMENT OF THE FACTS AND ALL SUPPORTING DATA BEARING UPON
THE DISPUTES."  48 STAT. 1191, 45 U.S.C. SEC. 153 FIRST (I). 

FN4  FOR THIS REASON THE DECISION IN SLOCUM V. DELEWARE, L.&W.R. CO.,
339 U.S. 239, IS NOT APPLICABLE HERE.  THE COURTS BELOW ALSO RELIED ON
HAYES V. UNION PACIFIC R. CO., 184 F.2D 337, CERT. DENIED, 340 U.S.
942, BUT FOR THE REASONS SET FORTH IN THE TEXT WE BELIEVE THAT CASE WAS
DECIDED INCORRECTLY. 

FN5  SEE, E.G., LEIMER V. STATE MUTUAL LIFE ASSUR.  CO., 108 F.2D
302; DIOGUARDI V. DURNING, 139 F.2D 774; CONTINENTAL COLLIERIES V.
SHOBER, 130 F.2D 631. 

FN6  STEELE V. LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192, 203. 

FN7  SEE DILLARD V. CHESAPEAKE & OHIO R. CO., 199 F.2D 948; HUGHES
TOOL CO. V. LABOR BOARD, 147 F.2D 69, 74. 

FN8  RULE 8(A)(2). 

FN9  SEE, E.G., RULE 12(E) (MOTION FOR A MORE DEFINITE STATEMENT);
RULE 12(F) (MOTION TO STRIKE PORTIONS OF THE PLEADING; RULE 12(C)
(MOTION FOR JUDGMENT ON THE PLEADINGS); RULE 16 (PRE-TRIAL PROCEDURE
AND FORMULATION OF ISSUES); RULES 26-37 (DEPOSITIONS AND DISCOVERY);
RULE 56 (MOTION FOR SUMMARY JUDGMENT); RULE 15 (RIGHT TO AMEND). 
..END :
















WILLIAMS V. SIMONS 355 U.S. 49 


NO. 74, MISC.  DECIDED NOVEMBER 18, 1957. 


A FEDERAL DISTRICT COURT ISSUED A TEMPORARY RESTRAINING ORDER
RESTRAINING THE GOVERNOR AND OTHER OFFICIALS OF MICHIGAN FROM
CONTINUING WITH PROCEEDINGS UNDER STATE LAW FOR THE REMOVAL OF CERTAIN
MUNICIPAL OFFICERS FOR ALLEGED MISFEASANCE IN OFFICE.  WITHOUT PASSING
ON THE MERITS OF THE COMPLAINT OR A MOTION TO DISMISS IT, A THREE-JUDGE
DISTRICT COURT, CONVENED TO CONSIDER THE CASE, CONTINUED THE TEMPORARY
RESTRAINING ORDER IN EFFECT FOR SEVERAL MONTHS, PENDING DETERMINATION
OF CRIMINAL PROCEEDINGS AGAINST THE SAME MUNICIPAL OFFICERS.  THE
GOVERNOR AND ATTORNEY GENERAL FILED A MOTION IN THIS COURT FOR LEAVE TO
FILE A PETITION FOR WRIT OF MANDAMUS OR FOR WRITS OF PROHIBITION AND
MANDAMUS DIRECTED AGAINST THE MEMBERS OF THE THREE-JUDGE DISTRICT COURT
TO COMPEL THEM TO DECIDE THE MOTION FOR A PRELIMINARY INJUNCTION AND
THE MOTION TO DISMISS, OR TO REFRAIN FROM PROCEEDING FURTHER IN THE
CAUSE AND TO VACATE THE TEMPORARY RESTRAINING ORDER.  THIS COURT ISSUED
AN ORDER TO THE MEMBERS OF THE DISTRICT COURT TO SHOW CAUSE WHY A WRIT
OF MANDAMUS OR PROHIBITION SHOULD NOT ISSUE.  THE DISTRICT COURT, ON
MOTION OF ONE OF THE COMPLAINANTS IN THE PROCEEDING BEFORE IT, THEN
VACATED ITS TEMPORARY RESTRAINING ORDER AND DISMISSED THE COMPLAINT. 
HELD:  IT APPEARING THAT THE CAUSE HAS BECOME MOOT, THE RULE TO SHOW
CAUSE IS DISCHARGED AND THE MOTION IS DENIED. 

WILLIAMS, GOVERNOR OF MICHIGAN, ET AL. V. SIMONS, CHIEF JUDGE, UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, ET AL. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS OR IN THE
ALTERNATIVE PROHIBITION AND MANDAMUS. 

PER CURIAM. 

IT APPEARING THAT THIS CASE HAS BECOME MOOT, THE RULE TO SHOW CAUSE
IS DISCHARGED AND THE MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF
MANDAMUS OR IN THE ALTERNATIVE PROHIBITION AND MANDAMUS IS DENIED. 

MEMORANDUM BY MR. JUSTICE FRANKFURTER, IN WHICH MR. JUSTICE BRENNAN
JOINS. 

IN VIEW OF THE DISPOSITION THE COURT MAKES OF THIS UNUSUAL
LITIGATION, IT SEEMS DESIRABLE TO SET FORTH THE FACTS. 

(1)  INQUIRY INTO MUNICIPAL OFFICERS' WRONGDOING. 

AUG. 1956 - THE ATTORNEY GENERAL OF MICHIGAN AND THE PROSECUTING
ATTORNEY OF WAYNE COUNTY, MICHIGAN, FILED WITH THE CIRCUIT COURT OF THE
THIRD JUDICIAL CIRCUIT FOR WAYNE COUNTY AN APPLICATION FOR A JUDICIAL
INVESTIGATION OF CRIMINAL OFFENSES AND UNLAWFUL PRACTICES IN THE CITY
OF ECORSE AND OTHER GOVERNMENTAL UNITS IN WAYNE COUNTY.  IN RE
KAVANAGH, MISC. NO. 83258. 

THAT COURT ENTERED AN ORDER APPOINTING THEODORE R. BOHN, CIRCUIT
JUDGE, TO CONDUCT AN INQUIRY PURSUANT TO MICH. COMP. LAWS, 1948, SECS.
767.3 AND 767.4, AS AMENDED BY MICH. PUB.  ACTS 1949, NO. 311, MICH.
PUB. ACTS 1951, NO. 276.  (FN1) 

SEPT. 1956 - INQUIRY CONDUCTED BY JUDGE BOHN PURSUANT TO SECS. 767.3
AND 767.4. 

OCT. 17, 1956 - WARRANT SIGNED BY JUDGE BOHN FOR THE ARREST OF
WILLIAM VOISINE, MAYOR OF THE CITY OF ECORSE, AND ALBERT BUDAY AND
FRANCIS LABADIE, MEMBERS OF THE CITY COUNCIL OF ECORSE.  THE WARRANT
RECITES THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT VOISINE, BUDAY,
LABADIE, AND OTHERS HAVE CONSPIRED TO OBSTRUCT JUSTICE BY KNOWINGLY
PERMITTING ILLEGAL GAMBLING TO FLOURISH IN RETURN FOR BRIBES AND
GRATUITIES.  A SEPARATE WARRANT ISSUED, EVIDENTLY ON OCTOBER 22D,
CHARGING ELMER KORN, ALSO A MEMBER OF THE CITY COUNCIL, WITH ACCEPTING
BRIBES. 

OCT. 23, 1956 - JUDGE BOHN SIGNED AND TRANSMITTED TO G. MENNEN
WILLIAMS, GOVERNOR OF MICHIGAN, FINDINGS OF PROBABLE CAUSE TO BELIEVE
VOISINE, LABADIE, AND BUDAY GUILTY OF MISFEASANCE IN OFFICE, AND OF
OTHER OFFENSES CONSTITUTING GROUNDS FOR REMOVAL, AND RECOMMENDED THAT
THE GOVERNOR, THE OFFICIAL EMPOWERED TO DO SO, TAKE STEPS TO REMOVE
THEM FROM OFFICE.  SIMILAR FINDINGS WERE TRANSMITTED TO THE GOVERNOR
CONCERNING ELMER KORN. 

(2)  CRIMINAL PROCEEDINGS. 

NOV. 1956 - PRELIMINARY EXAMINATION HELD BY JUSTICE OF THE PEACE, AND
ACCUSED OFFICERS BOUND OVER FOR TRIAL IN THE CIRCUIT COURT ON CRIMINAL
CHARGES. 

DEC. 21, 1956 - INFORMATION FILED IN THE CIRCUIT COURT FOR WAYNE
COUNTY AGAINST VOISINE, BUDAY, LABADIE, AND OTHERS, BY THE ATTORNEY
GENERAL, CHARGING A CONSPIRACY TO OBSTRUCT JUSTICE BY KNOWINGLY
PERMITTING ILLEGAL GAMBLING IN RETURN FOR BRIBES AND GRATUITIES. 
ARRAIGNMENT SET FOR JANUARY 15, 1957.  PEOPLE V. VOISINE, NO. 34092. 

JAN. 11, 1957 - INFORMATION FILED AGAINST KORN.  - MOTIONS TO QUASH
FILED BY VOISINE AND LABADIE. 

(3)  REMOVAL PROCEEDINGS. 

GOVERNOR INITIATED REMOVAL PROCEEDINGS AGAINST ACCUSED OFFICERS,
PURSUANT TO CONSTITUTIONAL AND STATUTORY AUTHORIZATION.  MICH. CONST.,
ART. IX, SEC. 8; MICH. COMP. LAWS, 1948, SEC.  767.4, AS AMENDED BY
MICH. PUB. ACTS 1949, NO. 311, MICH. PUB. ACTS 1951, NO. 276; MICH.
COMP.  LAWS, 1948, SEC. 168.327, AS ADDED BY MICH. PUB. ACTS 1954, NO.
116, C. XV; MICH. COMP. LAWS, 1948, SECS. 201.7, 201.10.  (FN2) 

OCT. 25, 1956 - EXECUTIVE ORDER ISSUED BY GOVERNOR WILLIAMS, ON THE
BASIS OF THE FINDINGS OF JUDGE BOHN, DIRECTING THE ATTORNEY GENERAL TO
INQUIRE INTO THE CHARGES MADE AGAINST KORN, AND APPOINTING JOHN W.
CONLIN, PROBATE JUDGE, TO CONDUCT HEARINGS AND TAKE TESTIMONY PRODUCED
BEFORE HIM. 

- EXECUTIVE ORDER ISSUED BY GOVERNOR DIRECTING THE ATTORNEY GENERAL
AND JUDGE CONLIN TO CONDUCT SIMILAR PROCEEDINGS AGAINST VOISINE,
LABADIE, AND BUDAY. 

NOV. 1 OR 2, 1956 - NOTICE OF REMOVAL PROCEEDINGS WAS SERVED ON
VOISINE, LABADIE, AND BUDAY, AND HEARING SET FOR NOVEMBER 13TH. 

- KORN ALSO SERVED WITH NOTICE OF THE REMOVAL PROCEEDINGS. 

NOV. 13, 1956 - REMOVAL PROCEEDINGS CONTINUED TO NOVEMBER 21ST. 

NOV. 21, 1956 - ACCUSED OFFICERS FILED MOTIONS TO DISMISS THE
PROCEEDINGS, AND OBJECTED TO HEARING ON REMOVAL CHARGES BEFORE TRIAL IN
THE CRIMINAL PROCEEDINGS. 

REMOVAL PROCEEDINGS CONTINUED TO JANUARY 7TH, 1957, AND THEN TO
JANUARY 9TH. 

JAN. 9, 1957 - ORDER ISSUED BY JUDGE CONLIN THE EFFECT OF WHICH,
ACCORDING TO ACCUSED OFFICERS, WAS TO DENY THEIR VARIOUS MOTIONS. 

(4)  INTERVENTION BY UNITED STATES DISTRICT COURT. 

JAN. 14, 1957 - COMPLAINT FILED BY VOISINE, LABADIE, BUDAY, AND KORN
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
MICHIGAN, NAMING AS DEFENDANTS JUDGE CONLIN, GOVERNOR WILLIAMS, JUDGE
BOHN, AND ATTORNEY GENERAL KAVANAGH, AND ALLEGING THAT THE STATUTE
CONFERRING REMOVAL POWER ON THE GOVERNOR, AND THE STATUTES UNDER WHICH
JUDGE BOHN ACTED, VIOLATE THE COMPLAINANTS' RIGHTS UNDER THE FEDERAL
CONSTITUTION.  THE COMPLAINT PRAYS:  THAT A TEMPORARY RESTRAINING ORDER
ISSUE TO PREVENT DEFENDANTS FROM CONTINUING WITH THE REMOVAL
PROCEEDINGS UNTIL OTHER MATTERS OF RELIEF PRAYED FOR CAN BE DETERMINED;
THAT A THREE-JUDGE DISTRICT COURT BE ORGANIZED UNDER 28 U.S.C. SEC.
2284, AS REQUIRED BY 28 U.S.C. SEC. 2281, TO ISSUE A PRELIMINARY
INJUNCTION; THAT ON FINAL HEARING THE REMOVAL PROCEEDINGS BE DECLARED
UNCONSTITUTIONAL AND VOID, AND THAT A PERMANENT INJUNCTION ISSUE
AGAINST DEFENDANTS' CONTINUING THE PROCEEDINGS; THAT THE WARRANT AND
INFORMATION UNDERLYING THE CRIMINAL ACTION BE DETERMINED TO HAVE ARISEN
OUT OF UNCONSTITUTIONAL PROCEEDINGS.  VOISINE V. CONLIN, CIV. NO.
16638. 

COMPLAINANTS ALSO FILED A NOTICE OF MOTION FOR A PRELIMINARY
INJUNCTION AND FOR THE FORMATION OF A THREE-JUDGE DISTRICT COURT, AND
PRAYED FOR A TEMPORARY RESTRAINING ORDER TO ISSUE WITHOUT NOTICE. 

TEMPORARY RESTRAINING ORDER ISSUED WITHOUT NOTICE BY DISTRICT JUDGE
LEVIN, RESTRAINING DEFENDANTS FROM CONTINUING WITH REMOVAL
PROCEEDINGS.  SEE 28 U.S.C. SEC. 2284(3) AND FED.  RULES CIV. PROC., 65. 

JAN 15, 1957 - ANNOUNCEMENT OF ORGANIZATION OF THREE-JUDGE DISTRICT
COURT, AND HEARING SET FOR JANUARY 29TH.  DEFENDANTS AGREED THAT
TEMPORARY RESTRAINING ORDER SHOULD REMAIN IN EFFECT UNTIL MATTER
DISPOSED OF BY THREE-JUDGE COURT. 

JAN 21, 1957 - DEFENDANTS FILED ANSWER TO COMPLAINT, DENYING
JURISDICTION OF THE COURT ON THE GROUNDS, AMONG OTHERS, THAT
COMPLAINANTS HAD FAILED TO EXHAUST THEIR STATE REMEDIES, AND THAT THE
SUIT WAS IN SUBSTANCE ONE TO ENJOIN THE STATE OF MICHIGAN FROM
EXERCISING ITS SOVEREIGN POWERS. 

DEFENDANTS FILED MOTION TO DISMISS ON SIMILAR GROUNDS. 

JAN. 29, 1957 - HEARING HELD BEFORE THREE-JUDGE DISTRICT COURT ON
MOTIONS OF COMPLAINANTS AND DEFENDANTS. 

FEB. 1, 1957 - DISTRICT COURT ENTERED AMENDED ORDER HOLDING IN
ABEYANCE DETERMINATION OF THE QUESTIONS SUBMITTED UNTIL THE TERMINATION
OF COMPLAINANTS' CRIMINAL TRIALS OR UNTIL FURTHER ORDER OF COURT, AND
CONTINUING IN FORCE THE TEMPORARY RESTRAINING ORDER.  THE COURT RECITED
AS GROUNDS FOR ITS ACTION THAT COMPLAINANTS MAY FORTHWITH BE TRIED IN
THE CRIMINAL PROCEEDINGS AND THE CONSTITUTIONAL QUESTIONS PRESENTED MAY
THEREBY BECOME MOOT, AND THAT COMPLAINANTS MAY BE PREJUDICED IN THE
CRIMINAL PROCEEDINGS BY THE INVESTIGATION IN THE REMOVAL PROCEEDINGS. 
CHIEF JUDGE LEDERLE, DISTRICT JUDGE, DISSENTED ON THE GROUND THAT THE
CASE WAS RIPE FOR DECISION. 

FEB. 28, 1957 - THE GOVERNOR AND ATTORNEY GENERAL FILED A MOTION TO
DISSOLVE THE TEMPORARY RESTRAINING ORDER OR TO PASS ON DEFENDANTS'
MOTION TO DISMISS, ON THE GROUND THAT THE COURT HAD NO AUTHORITY TO
REFUSE TO DECIDE THE MOTION AND TO CONTINUE THE TEMPORARY RESTRAINING
ORDER. 

MAR. 8, 1957 - PROCEEDINGS ON THE MOTION TO DISSOLVE. 

MAR. 11, 1957 - VOISINE FILED AN ANSWER TO THE MOTION TO DISSOLVE. 

APR. 9, 1957 - THE COURT ENTERED AN ORDER DENYING THE MOTION TO
DISSOLVE ON THE GROUND THAT, DEEMING IT A MOTION FOR A REHEARING, IT
PRESENTED NO CONSIDERATIONS THAT WERE NOT BEFORE THE COURT WHEN IT
ENTERED ITS AMENDED ORDER OF FEBRUARY 1ST.  CHIEF JUDGE LEDERLE
DISSENTED. 

(5)  PROCEEDINGS IN THIS COURT FOR REVIEW OF DISTRICT COURT'S
ACTION. 

JULY 3, 1957 - THE GOVERNOR AND ATTORNEY GENERAL FILED IN THIS COURT
A MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF MANDAMUS OR FOR WRITS
OF PROHIBITION AND MANDAMUS DIRECTED AGAINST THE MEMBERS OF THE THREE
JUDGE DISTRICT COURT TO COMPEL THEM TO DECIDE THE MOTION FOR A
PRELIMINARY INJUNCTION AND THE MOTION TO DISMISS, OR TO REFRAIN FROM
PROCEEDING FURTHER IN THE CAUSE AND TO VACATE THE TEMPORARY RESTRAINING
ORDER. 

PETITIONERS ASSERTED, AMONG OTHER GROUNDS FOR THE ISSUANCE OF THE
WRITS, THAT IN A CASE OF GREAT PUBLIC IMPORTANCE THE DISTRICT COURT
HAD, FOR AN UNREASONABLE TIME, FAILED TO PERFORM ITS JUDICIAL FUNCTION
BY GRANTING OR DENYING THE MOTIONS BEFORE IT, WHILE CONTINUING IN
EFFECT THE TEMPORARY RESTRAINING ORDER. 

OCT. 24 OR 25, 1957 - COUNSEL FOR VOISINE FILED IN THE DISTRICT COURT
A MOTION TO DISMISS THE COMPLAINT, NOTICED FOR HEARING ON NOVEMBER
4TH.  THE ATTORNEY GENERAL RECEIVED A COPY OF THIS MOTION AND ON
OCTOBER 29TH A COPY OF A SIMILAR MOTION BY LABADIE, ALSO NOTICED FOR
HEARING ON NOVEMBER 4TH. 

OCT. 28, 1957 - THIS COURT ISSUED AN ORDER TO THE MEMBERS OF THE
DISTRICT COURT TO SHOW CAUSE ON OR BEFORE NOVEMBER 12TH WHY A WRIT OF
MANDAMUS OR PROHIBITION SHOULD NOT ISSUE.  THIS ORDER WAS SENT TO THE
RESPONDENTS THE SAME DAY, MONDAY, OCTOBER 28TH. 

OCT. 29, 1957 - THE NEXT DAY, THE DISTRICT COURT ENTERED AN ORDER, ON
THE MOTION OF VOISINE AND WITH THE CONCURRENCE OF THE OTHER
COMPLAINANTS, VACATING THE TEMPORARY RESTRAINING ORDER AND DISMISSING
THE COMPLAINT.  THE ATTORNEY GENERAL, WE ARE ADVISED, WAS NOT GIVEN
NOTICE THAT THE DISTRICT COURT WOULD ACT ON THE MOTION TO DISMISS, OR
GIVEN AN OPPORTUNITY TO PRESENT OBJECTIONS. 

OCT. 31, 1957 - DEFENDANTS FILED WITH THE DISTRICT COURT AN ANSWER TO
THE MOTION TO DISMISS, ASSERTING THAT THE COURT SHOULD REFRAIN FROM
ACTING ON THE MOTION UNTIL IT HAD FILED A RETURN TO THIS COURT'S ORDER
OF OCTOBER 28TH TO SHOW CAUSE. 

NOV. 4, 1957 - THE DISTRICT COURT ADVISED THIS COURT OF THE ORDER OF
DISMISSAL OF OCTOBER 29TH, AND EXPRESSED ITS VIEW THAT, SINCE THE
ISSUES PRESENTED BY THE CASE ARE MOOT, THIS COURT SHOULD VACATE ITS
ORDER TO SHOW CAUSE. 

NOV. 8, 1957 - THE ATTORNEY GENERAL OF MICHIGAN, PROTESTING AGAINST
THE DISTRICT COURT'S ACTION, REQUESTED A DETERMINATION OF THE ISSUES
PRESENTED IN SPITE OF THE DISTRICT COURT'S ORDER DISMISSING THE
COMPLAINT. 

FROM THE FOREGOING IT APPEARS THAT AS A RESULT OF THE DISTRICT
COURT'S REFUSAL TO PASS ON THE QUESTIONS PRESENTED BY THE COMPLAINANTS'
MOTION FOR A PRELIMINARY INJUNCTION AND THE DEFENDANTS' MOTION TO
DISMISS, TOGETHER WITH THE COURT'S CONTINUANCE OF THE TEMPORARY
RESTRAINING ORDER, THE GOVERNOR OF MICHIGAN AND SUBORDINATE STATE
OFFICIALS DESIGNATED BY HIM WERE PREVENTED FOR ALMOST NINE MONTHS FROM
EXERCISING POWERS CLAIMED TO BE CONFERRED UPON THEM BY MICHIGAN LAW TO
REMOVE MUNICIPAL OFFICERS GUILTY OF MISCONDUCT.  THE MOTION FOR LEAVE
TO FILE A PETITION FOR MANDAMUS OR PROHIBITION WAS FILED IN THIS COURT
AT THE END OF THE 1956 TERM AND COULD NOT BE CONSIDERED UNTIL THE
COMMENCEMENT OF THE NEW TERM.  IMMEDIATELY AFTER THE COURT CONSIDERED
THE MOTION AND ISSUED ITS ORDER TO SHOW CAUSE ON THE BASIS OF A CLAIM
THAT CHALLENGED THE VALIDITY OF THE ACTIONS TAKEN BY THE DISTRICT
COURT, THAT COURT DISMISSED THE COMPLAINT AND THEREBY DERAILED, AS IN
EFFECT IT HAS ASSERTED, CONSIDERATION ON THE MERITS OF THE ISSUES
PRESENTED BY THE ORDER TO SHOW CAUSE.  PUTTING TO ONE SIDE THE VALIDITY
OR PROPRIETY OF THE DISTRICT COURT'S ACTION IN RELATION TO THE ORDER OF
OCTOBER 28TH, AND ACCEPTING THE DISMISSAL AS ACCOMPLISHED, WE MUST DENY
THE PETITION FOR MANDAMUS OR PROHIBITION.  BY VACATING THE TEMPORARY
RESTRAINING ORDER AND DISMISSING THE COMPLAINT, THE DISTRICT COURT HAS
BROUGHT TO PASS ONE ALTERNATIVE OF THE ORDER PETITIONERS WOULD HAVE
THIS COURT ISSUE, THUS RENDERING THE PETITION FOR ALL PRACTICAL
PURPOSES MOOT.  BUT, ALTHOUGH THE PAST CANNOT BE RECALLED AND THE
PHYSICAL ENTRIES IN THE RECORDS EXPUNGED, THE LEGAL SIGNIFICANCE AND
IMPLICATIONS OF THIS CASE ARE TO BE DEEMED EXPUNGED AS THOUGH THE
RESTRAINTS IMPOSED BY THE DISTRICT COURT HAD NEVER BEEN ORDERED. 

FN1  SECTION 767.3 AUTHORIZES A SINGLE JUDGE TO CONDUCT AN INQUIRY
INTO ALLEGED ILLEGAL PRACTICES.   SECTION 767.4 PROVIDES THAT IF THE
JUDGE IS SATISFIED THAT AN OFFENSE HAS BEEN COMMITTED AND THAT THERE IS
PROBABLE CAUSE TO BELIEVE A PERSON GUILTY THEREOF, HE MAY CAUSE HIS
APPREHENSION ON PROPER PROCESS.  IT FURTHER PROVIDES THAT IF THE JUDGE
HAS PROBABLE CAUSE TO BELIEVE THAT ANY PUBLIC OFFICER REMOVABLE BY LAW
HAS BEEN GUILTY OF MISFEASANCE OR MALFEASANCE IN OFFICE, HE SHALL MAKE
FINDINGS TO THIS EFFECT AND SERVE THEM UPON THE PUBLIC OFFICIAL HAVING
JURISDICTION TO REMOVE THE ACCUSED OFFICER. 

FN2  SECTION 767.4 PROVIDES THAT FINDINGS OF PROBABLE CAUSE
TRANSMITTED TO THE GOVERNOR BY A JUDGE WHO HAS CONDUCTED AN
INVESTIGATION UNDER SEC. 767.3 SHALL BE A SUFFICIENT COMPLAINT AS A
BASIS FOR INITIATION OF REMOVAL PROCEEDINGS.  SECTION 168.327
AUTHORIZES THE GOVERNOR TO REMOVE AN ELECTED MUNICIPAL OFFICER WHEN
SATISFIED BY SUFFICIENT EVIDENCE SUBMITTED TO HIM IN THE MANNER
PRESCRIBED BY LAW THAT THE OFFICER IS GUILTY OF MISCONDUCT.  SECTIONS
201.7 AND 201.10 AUTHORIZE THE GOVERNOR TO DIRECT THE ATTORNEY GENERAL
TO INQUIRE INTO THE CHARGES AND TO PRESENT TESTIMONY AND EXAMINE
WITNESSES BEFORE A PROBATE JUDGE APPOINTED BY THE GOVERNOR FOR SUCH
PURPOSE.  THE PROBATE JUDGE IS TO CERTIFY A TRANSCRIPT OF THE TESTIMONY
PRODUCED BEFORE HIM BY THE ATTORNEY GENERAL AND THE ACCUSED OFFICER,
AND DELIVER IT TO THE ATTORNEY GENERAL FOR TRANSMITTAL TO THE
GOVERNOR.    MEMORANDUM BY MR. JUSTICE DOUGLAS.    THIS COURT IS
EMPOWERED BY THE CONSTITUTION TO DECIDE CASES AND CONTROVERSIES.  U.S.
CONST., ART. III, SEC. 2.  A CAUSE THAT HAS BECOME MOOT IS NOT A CASE
OR CONTROVERSY IN THE CONSTITUTIONAL SENSE.   AMALGAMATED ASSN. OF
STREET, ELECTRIC RY. & MOTOR COACH EMPLOYEES V. WISCONSIN BOARD, 340
U.S. 416, 418.  WE CANNOT UNDERSCORE THIS PRINCIPLE TOO HEAVILY.  WE
HAVE NO BUSINESS IN GIVING ANY EXPRESSION OF VIEWS ON THE MERITS, EVEN
IN SQUINTING ONE WAY OR ANOTHER.  THAT IS WHY THE COURT PROPERLY
RESTRICTS ITS ACTION TO THE ORDER ENTERED THIS DAY. 
..END :






IN RE LAMKIN 355 U.S. 59 


NO. 275, MISC.  DECIDED NOVEMBER 18, 1957 - CERTIORARI DENIED.  -
REPORTED BELOW:  164 TEX. CR. R. - , 301 S.W.2D 922. 


THE JUDGMENT BELOW RESTS ON AN ADEQUATE STATE GROUND SINCE PETITIONER,
IN FILING HIS APPLICATION FOR HABEAS CORPUS IN THE STATE COURT, FAILED
TO COMPLY WITH APPLICABLE STATE PROCEDURES. 

THE STAY IS CONTINUED TO DECEMBER 18, 1957, TO AFFORD PETITIONER AN
OPPORTUNITY TO FILE APPLICATION FOR RELIEF IN THE APPROPRIATE STATE
COURT, AND IN EVENT OF DENIAL OF SAME IN THE HIGHEST COURT OF THE
STATE, TO RENEW IN THIS COURT AN APPLICATION FOR WRIT OF CERTIORARI. 

IN RE LAMKIN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
OF TEXAS. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS DENIED.  THE JUDGMENT BELOW
RESTS ON AN ADEQUATE STATE GROUND SINCE PETITIONER, IN FILING HIS
APPLICATION FOR HABEAS CORPUS IN THE STATE COURT, FAILED TO COMPLY WITH
APPLICABLE STATE PROCEDURES.  SEE FOX FILM CORP. V. MULLER, 296 U.S.
207 (1935).  THE STAY HERETOFORE ENTERED IS CONTINUED THROUGH DECEMBER
18, 1957, TO AFFORD PETITIONER AN OPPORTUNITY TO FILE WITH DUE
DILIGENCE A PROPER APPLICATION FOR RELIEF IN THE APPROPRIATE STATE
COURT, AND IN THE EVENT OF A FINAL DENIAL OF SAME IN THE HIGHEST COURT
OF THE STATE, TO RENEW IN THIS COURT AN APPLICATION FOR WRIT OF
CERTIORARI.  SEE TENNER V. DULLEA, 314 U.S. 692 (1941). 
..END :




















PORET V. SIGLER 355 U.S. 60 


NO. 268, MISC.  DECIDED NOVEMBER 18, 1957 - CERTIORARI GRANTED. 


IN VIEW OF RECENT ACTION OF THE SUPREME COURT OF LOUISIANA IN CERTAIN
RELATED CASES, THE JUDGMENTS HERETOFORE ENTERED ARE VACATED AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT FOR CONSIDERATION OF THE
APPLICATION FOR HABEAS CORPUS. 

STAY CONTINUED IN EFFECT UNTIL FINAL DISPOSITION OF THE CASE IN
DISTRICT COURT. 

PORET ET AL. V. SIGLER, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND IN VIEW OF THE
ACTION OF THE SUPREME COURT OF LOUISIANA ON SEPTEMBER 25, 1957, IN
PORET V. SIGLER AND PORET V. LOUISIANA, NOS. 269 AND 270, MISC., O.T.
1957, CERTIORARI DENIED THIS DAY POST, P. 879, THE JUDGMENTS HERETOFORE
ENTERED ARE VACATED, AND THE CAUSE IS REMANDED TO THE DISTRICT COURT
FOR CONSIDERATION OF THE APPLICATION FOR HABEAS CORPUS.  THE STAY
HERETOFORE ENTERED IS CONTINUED IN EFFECT UNTIL FINAL DISPOSITION OF
THE CASE IN THE DISTRICT COURT. 
..END :
























LEE YOU FEE V. DULLES 355 U.S. 61 


NO. 58.  DECIDED NOVEMBER 18, 1957 - 236 F.2D 885, REVERSED AND
REMANDED. 


UPON CONSIDERATION OF THE RECORD AND THE CONFESSION OF ERROR BY THE
SOLICITOR GENERAL, THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO
THE DISTRICT COURT WITH DIRECTIONS TO VACATE ITS ORDER DISMISSING THE
COMPLAINT. 

LEE YOU FEE V. DULLES, SECRETARY OF STATE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE CONFESSION OF ERROR BY THE SOLICITOR
GENERAL AND OF THE ENTIRE RECORD, THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO VACATE ITS ORDER
DISMISSING THE COMPLAINT. 
..END :







STINSON V. ATLANTIC COAST LINE RAILROAD CO. 355 U.S. 62 


NO. 442.  DECIDED NOVEMBER 18, 1957.  - REPORTED BELOW:  266 ALA. 244,
96 SO. 2D 305. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT,
CERTIORARI GRANTED; JUDGMENT REVERSED AND CAUSE REMANDED FOR
CONSIDERATION OF ANY GROUNDS NOT DISPOSED OF ON THE FIRST APPEAL AND,
IF NONE HAS MERIT, WITH INSTRUCTIONS TO REINSTATE THE JUDGMENT AWARDING
DAMAGES TO PETITIONER. 

(A)  THIS COURT AGREES WITH THE FINDING OF THE SUPREME COURT OF
ALABAMA THAT THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO FIND THAT
THERE WAS NEGLIGENCE ON THE PART OF RESPONDENT RAILROAD. 

(B)  THE EVIDENCE ALSO PRESENTED A JURY QUESTION WHETHER THE
EMPLOYEE'S DEATH RESULTED IN WHOLE OR IN PART FROM SUCH NEGLIGENCE. 

STINSON, ADMINISTRATRIX, V. ATLANTIC COAST LINE RAILROAD CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE SUPREME COURT OF
ALABAMA HELD THAT "THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO FIND
THAT THERE WAS NEGLIGENCE ON THE PART OF THE ATLANTIC COAST LINE
RAILROAD COMPANY."  264 ALA. 522, 527, 88 SO. 2D 189, 193.  WE AGREE. 
WE NOW HOLD THAT THE EVIDENCE ALSO PRESENTED A JURY QUESTION WHETHER
THE EMPLOYEE'S DEATH RESULTED IN WHOLE OR IN PART FROM SUCH
NEGLIGENCE.  35 STAT. 65, 45 U.S.C. SEC. 51; ROGERS V. MISSOURI PACIFIC
R. CO., 352 U.S. 500; SCHULZ V. PENNSYLVANIA R. CO., 350 U.S. 523.  THE
JUDGMENT OF THE SUPREME COURT OF ALABAMA IS THEREFORE REVERSED AND THE
CAUSE IS REMANDED FOR CONSIDERATION OF ANY GROUNDS NOT DISPOSED OF ON
THE FIRST APPEAL; AND, IF NONE HAS MERIT, WITH INSTRUCTIONS TO
REINSTATE THE JUDGMENT ENTERED ON THE JURY VERDICT OF JUNE 12, 1953,
AWARDING THE PETITIONER DAMAGES OF $46,600.  URIE V. THOMPSON, 337 U.S.
163. 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI IS IMPROVIDENTLY GRANTED. 

MR. JUSTICE BURTON DISSENTS. 

MR. JUSTICE HARLAN, WHILE BELIEVING THAT CERTIORARI SHOULD BE DENIED,
CONSIDERS THAT ROGERS V. MISSOURI PACIFIC R. CO., SUPRA, REQUIRES HIM
TO CONCUR IN THE RESULT. 
..END :



CITY OF NASHVILLE V. UNITED STATES 355 U.S. 63 


NO. 365.  DECIDED NOVEMBER 18, 1957* - JUDGMENT AFFIRMED.  - REPORTED
BELOW:  NO. 365, 155 F. SUPP. 98. 

*TOGETHER WITH NO. 519, LAMBERT ET AL. V. UNITED STATES ET AL., ALSO
ON APPEAL FROM THE SAME COURT. 


CITY OF NASHVILLE ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF TENNESSEE. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :














AMERICAN PUBLIC POWER ASSOCIATION V. POWER AUTHORITY OF NEW YORK 355
U.S. 64 


NO. 477.  DECIDED NOVEMBER 18, 1957 - REPORTED BELOW:  101 U.S. APP.
D.C. 132, 247 F.2D 538. 


CERTIORARI GRANTED, JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS
TO DISMISS THE PETITION ON THE GROUND THAT THE CAUSE IS MOOT. 

AMERICAN PUBLIC POWER ASSOCIATION ET AL. V. POWER AUTHORITY OF NEW YORK
ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS
VACATED AND THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO
DISMISS THE PETITION UPON THE GROUND THAT THE CAUSE IS MOOT. 
..END :








TURNER V. WRIGHT 355 U.S. 65 


NO. 405.  DECIDED NOVEMBER 18, 1957* - APPEALS DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  - REPORTED BELOW:  NO. 405, 11 ILL. 2D
161, 142 N.E.2D 84; NO. 470, 11 ILL. 2D 337, 142 N.E.2D 691; NO. 482,
11 ILL. 2D 294, 142 N.E.2D 46. 

*TOGETHER WITH NO. 470, ABBATE BROTHERS, INC., ET AL. V. CITY OF
CHICAGO, AND NO. 482, BURGESS-NORTON MANUFACTURING CO. V. LYONS ET AL.,
ALSO ON APPEALS FROM THE SAME COURT. 


TURNER V. WRIGHT, TREASURER OF ILLINOIS, ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

PER CURIAM. 

THE MOTIONS TO DISMISS ARE GRANTED AND THE APPEALS ARE DISMISSED FOR
WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :











BLACK V. MAGNOLIA LIQUOR CO., INC. 355 U.S. 24 


NO. 14.  ARGUED OCTOBER 17, 1957 - DECIDED NOVEMBER 12, 1957 - 231 F.2D
941, REVERSED AND REMANDED. 


A WHOLESALE LIQUOR DEALER COMPELLED RETAILERS TO BUY CERTAIN BRANDS OF
ALCOHOLIC BEVERAGES WHICH THEY DID NOT DESIRE IN ORDER TO OBTAIN OTHER
BRANDS WHICH THEY DID DESIRE.  HELD:  THIS EXACTED A "QUOTA" FROM THE
RETAILERS AND, TO THAT EXTENT, EXCLUDED SALES BY COMPETING WHOLESALERS,
IN VIOLATION OF SEC. 5 OF THE FEDERAL ALCOHOL ADMINISTRATION ACT, AND
IT SUBJECTED THE OFFENDING WHOLESALER TO A SUSPENSION OF ITS WHOLESALE
LIQUOR PERMIT ISSUED UNDER THE ACT.  PP. 24-27. 

BLACK, ASSISTANT REGIONAL COMMISSIONER, ALCOHOL AND TOBACCO TAX
DIVISION, INTERNAL REVENUE SERVICE, V. MAGNOLIA LIQUOR CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER SEEKS TO SUSPEND RESPONDENT'S WHOLESALE LIQUOR PERMIT
ISSUED UNDER THE FEDERAL ALCOHOL ADMINISTRATION ACT (49 STAT. 977, 27
U.S.C. SEC. 201) FOR HAVING MADE "QUOTA" SALES OF ALCOHOLIC BEVERAGES
IN VIOLATION OF SEC. 5(A) AND (B) OF THE ACT.  THE AGENCY ORDERED
SUSPENSION OF THE PERMIT FOR 15 DAYS FOR THAT VIOLATION.  THE COURT OF
APPEALS SET THE ORDER ASIDE, 231 F.2D 941.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI, WHICH WE GRANTED (352 U.S. 877)
BECAUSE OF A CONFLICT BETWEEN THE DECISION BELOW AND DISTILLED BRANDS
V. DUNIGAN, 222 F.2D 867, FROM THE SECOND CIRCUIT. 

PURCHASE DISTILLED SPIRITS "TO THE EXCLUSION IN WHOLE OR IN PART OF
DISTILLED SPIRITS" OFFERED BY OTHER PERSONS "BY REQUIRING THE RETAILER
TO TAKE AND DISPOSE OF A CERTAIN QUOTA OF ANY OF SUCH PRODUCTS," WHERE,
INTER ALIA, THE EFFECT IS "SUBSTANTIALLY TO RESTRAIN OR PREVENT
TRANSACTIONS IN INTERSTATE OR FOREIGN COMMERCE IN ANY SUCH PRODUCTS." 

THE FACTS ARE THAT DURING THE PERIOD IN QUESTION JOHNNY WALKER SCOTCH
AND SEAGRAM'S V.O.  WHISKEY WERE IN SHORT SUPPLY, WHILE SEAGRAM'S
ANCIENT BOTTLE GIN AND SEAGRAM'S 7-CROWN WHISKEY WERE PLENTIFUL,
ANCIENT BOTTLE BEING A POOR SELLER.  RESPONDENT, IN ORDER TO INCREASE
ITS SALES OF ANCIENT BOTTLE GIN AND 7-CROWN WHISKEY, COMPELLED
RETAILERS TO BUY THEM, WHICH THEY DID NOT DESIRE, IN ORDER TO OBTAIN
THE OTHER TWO WHISKEYS WHICH THEY DID DESIRE.  THE AGENCY FOUND THAT
RESPONDENT'S SALES WERE "QUOTA" SALES WITHIN THE MEANING OF THE ACT,
THAT THEY AFFECTED ADVERSELY THE SALES OF COMPETING BRANDS, AND
"EXCLUDED, IN WHOLE OR IN PART, DISTILLED SPIRITS  ...  OFFERED FOR
SALE BY OTHER PERSONS IN INTERSTATE COMMERCE" - ALL TO THE END OF
SUBSTANTIALLY RESTRAINING AND PREVENTING COMMERCE.  THE COURT OF
APPEALS CONCLUDED THAT THE TRANSACTIONS COMPLAINED OF, ALTHOUGH TIE-IN
SALES, DID NOT VIOLATE SEC. 5 OF THE ACT. 

TYING AGREEMENTS BY WHICH THE SALE OF ONE COMMODITY IS CONDITIONED ON
THE PURCHASE OF ANOTHER HAVE BEEN REPEATEDLY CONDEMNED UNDER THE
ANTITRUST LAWS, SINCE THEY SERVE NO PURPOSE BEYOND THE SUPPRESSION OF
COMPETITION.  STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293, 305-306;
UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131, 156-159;
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392; MERCOID CORP. V.
MINNEAPOLIS-HONEYWELL CO., 320 U.S. 680.  ONE AIM OF CONGRESS BY THE
PRESENT LEGISLATION WAS TO PROHIBIT PRACTICES THAT WERE "ANALOGOUS TO
THOSE PROHIBITED BY THE ANTITRUST LAWS," (SEE H.R. REP. NO. 1542, 74TH
CONG., 1ST SESS., P. 12).  THE TIE-IN SALES INVOLVED HERE SEEM TO US TO
RUN AFOUL OF THAT POLICY, SINCE THE RETAILER IS COERCED INTO BUYING
DISTILLED SPIRITS HE WOULD OTHERWISE NOT HAVE PURCHASED AT THAT TIME,
AND OTHER SELLERS OF THE PRODUCTS ARE TO THAT EXTENT EXCLUDED FROM THE
MARKET THAT WOULD EXIST WHEN THE DEMAND AROSE.  A WHOLESALER WHO
COMPELS A RETAILER TO BUY AN UNWANTED INVENTORY AS A CONDITION TO
ACQUISITION OF NEEDED ARTICLES EXACTS A "QUOTA" FROM THE RETAILER AND
EXCLUDES SALES BY COMPETING WHOLESALERS IN THE STATUTORY SENSE. 

THE COURT BELOW RELIED ON TWO COUNTERVAILING CONSIDERATIONS.  IT
NOTED THAT SEC. 5(A) IS HEADED "EXCLUSIVE OUTLET" AND SEC. 5(B) "TIED
HOUSE."  THESE TITLES WERE ENOUGH, IT THOUGHT, TO RAISE DOUBTS
CONCERNING THE MEANING OF THE STATUTORY CLAUSES, SINCE THE RETAILER IN
QUESTION WAS NOT A "TIED HOUSE" OR "EXLUSIVE OUTLET," BUT ONLY THE
VICTIM OF THESE PARTICULAR TIED-IN SALES.  THE COURT WAS CONSTRAINED TO
READ THE ACT NARROWLY, AS IT CONCEIVED IT TO BE PENAL IN NATURE WHEN IT
FORFEITED A PERMIT TO DO BUSINESS.  BUT WE DEAL HERE WITH REMEDIAL
LEGISLATION WHOSE LANGUAGE SHOULD BE GIVEN HOSPITABLE SCOPE.  SEE
SECURITIES AND EXCHANGE COMMISSION V. JOINER CORP., 320 U.S. 344, 353,
355.  THE WILL OF CONGRESS WOULD BE THWARTED IF WE GAVE THE LANGUAGE IN
QUESTION THE STRICTEST CONSTRUCTION POSSIBLE.  THE FAIR MEANING OF THE
ACT IS OUR GUIDE; AND IT SEEMS TOO CLEAR FOR EXTENDED ARGUMENT THAT THE
TIED-IN SALE, THOUGH IT FALLS SHORT OF CREATING AN EXCLUSIVE OUTLET AND
A PERMANENTLY "TIED HOUSE," VIOLATES THE ACT. 

THE OTHER CONSIDERATION RELIED UPON BY THE COURT OF APPEALS WAS A
LETTER WRITTEN BY THE AGENCY TO CONGRESS IN 1947 ASKING FOR AN
AMENDMENT TO SEC. 5 BECAUSE IT HAD DOUBT "WHETHER VIOLATIONS OF THE
STATUTE COULD BE ESTABLISHED THROUGH THE 'TIE-IN' SALES."  THE
ADMINISTRATIVE PRACTICE, WE ARE ADVISED, HAS QUITE CONSISTENTLY
REFLECTED THE VIEW THAT SUCH SALES ARE BANNED BY THE ACT.  SEE ANNUAL
REPORT, COMMISSIONER OF INTERNAL REVENUE 1946, PP. 45-46; ID., 1947, P.
49.  THE FACT THAT THE AGENCY SOUGHT A CLARIFYING AMENDMENT IS,
THEREFORE, OF NO SIGNIFICANCE.  SEE WONG YANG SUNG V. MCGRATH, 339 U.S.
33, 47; UNITED STATES V. TURLEY, 352 U.S. 407, 415, N. 14.  THE
JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE COURT OF APPEALS
FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 
..END :


















ALCORTA V. TEXAS 355 U.S. 28 


NO. 139.  ARGUED OCTOBER 23, 1957 - DECIDED NOVEMBER 12, 1957 - REVERSED
AND REMANDED. 


IN A TEXAS STATE COURT, PETITIONER WAS CONVICTED OF MURDERING HIS WIFE
AND WAS SENTENCED TO DEATH.   AT HIS TRIAL, HE ADMITTED THE KILLING BUT
CLAIMED IT OCCURRED IN A FIT OF PASSION WHEN HE DISCOVERED HIS WIFE,
WHOM HE HAD ALREADY SUSPECTED OF MARITAL INFIDELITY, KISSING ANOTHER
MAN LATE AT NIGHT IN A PARKED CAR.  HAD THIS CLAIM BEEN ACCEPTED BY THE
JURY, IT COULD HAVE FOUND HIM GUILTY OF "MURDER WITHOUT MALICE" WHICH,
UNDER A TEXAS STATUTE, WAS PUNISHABLE BY A MAXIMUM SENTENCE OF FIVE
YEARS' IMPRISONMENT.  THE OTHER MAN TESTIFIED AT THE TRIAL THAT HIS
RELATIONSHIP WITH PETITIONER'S WIFE WAS NOTHING MORE THAN A CASUAL
FRIENDSHIP AND THAT HE HAD SIMPLY DRIVEN HER HOME FROM WORK A FEW
TIMES.  IN A SUBSEQUENT HABEAS CORPUS PROCEEDING, THE OTHER MAN
CONFESSED TO HAVING HAD SEXUAL INTERCOURSE WITH PETITIONER'S WIFE ON
SEVERAL OCCASIONS AND TESTIFIED THAT HE HAD INFORMED THE PROSECUTOR OF
THIS BEFORE THE TRIAL AND THAT THE PROSECUTOR HAD TOLD HIM HE SHOULD
NOT VOLUNTEER ANY INFORMATION ABOUT IT.  THE PROSECUTOR ADMITTED THAT
THESE STATEMENTS WERE TRUE.  PETITIONS FOR WRITS OF HABEAS CORPUS WERE
DENIED BOTH BY THE TRIAL COURT AND BY THE TEXAS COURT OF CRIMINAL
APPEALS.  HELD:  PETITIONER WAS DENIED DUE PROCESS OF LAW; THE JUDGMENT
DENYING A WRIT OF HABEAS CORPUS IS REVERSED; AND THE CAUSE IS
REMANDED.  PP. 28-32. 

ALCORTA V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PER CURIAM. 

PETITIONER, ALVARO ALCORTA, WAS INDICTED FOR MURDER IN A TEXAS STATE
COURT FOR STABBING HIS WIFE TO DEATH.  VERNON'S TEX. PEN.  CODE, 1948,
ART. 1256.  HE ADMITTED THE KILLING BUT CLAIMED IT OCCURRED IN A FIT OF
PASSION WHEN HE DISCOVERED HIS WIFE, WHOM HE HAD ALREADY SUSPECTED OF
MARITAL INFIDELITY, KISSING ONE CASTILLEJA LATE AT NIGHT IN A PARKED
CAR.  PETITIONER RELIED ON TEXAS STATUTES WHICH TREAT KILLING UNDER THE
INFLUENCE OF A "SUDDEN PASSION ARISING FROM AN ADEQUATE CAUSE  ...  AS
WOULD COMMONLY PRODUCE A DEGREE OF ANGER, RAGE, RESENTMENT, OR TERROR
IN A PERSON OF ORDINARY TEMPER SUFFICIENT TO RENDER THE MIND INCAPABLE
OF COOL REFLECTION" AS MURDER WITHOUT MALICE PUNISHABLE BY A MAXIMUM
SENTENCE OF FIVE YEAR'S IMPRISONMENT.  VERNON'S TEX. PEN.  CODE, 1948,
ARTS. 1257A, 1257B, 1257C.  THE JURY, HOWEVER, FOUND HIM GUILTY OF
MURDER WITH MALICE AND, ACTING UNDER BROAD STATUTORY AUTHORITY TO
DETERMINE THE EXTENT OF PUNISHMENT, SENTENCED HIM TO DEATH.  THE
JUDGMENT AND SENTENCE WERE AFFIRMED BY THE TEXAS COURT OF CRIMINAL
APPEALS.  165 TEX. CR. R. - , 294 S.W.2D 112. 

CASTILLEJA, THE ONLY EYE WITNESS TO THE KILLING, TESTIFIED FOR THE
STATE AT PETITIONER'S TRIAL.  IN RESPONSE TO INQUIRIES BY THE
PROSECUTOR ABOUT HIS RELATIONSHIP WITH THE PETITIONER'S WIFE,
CASTILLEJA SAID THAT THE HAD SIMPLY DRIVEN HER HOME FROM WORK A COUPLE
OF TIMES, AND IN SUBSTANCE TESTIFIED THAT HIS RELATIONSHIP WITH HER HAD
BEEN NOTHING MORE THAN A CASUAL FRIENDSHIP.  HE STATED THAT HE HAD
GIVEN HER A RIDE ON THE NIGHT SHE WAS KILLED AND WAS PARKED IN FRONT OF
HER HOME WITH HIS CAR LIGHTS OUT AT TWO O'CLOCK IN THE MORNING BECAUSE
OF ENGINE TROUBLE.  THE PROSECUTOR THEN ASKED WHAT HAD TRANSPIRED
BETWEEN CASTILLEJA AND PETITIONER'S WIFE IN THE PARKED CAR: 

"Q.  DID YOU HAVE A CONVERSATION WITH HERLINDA? 

"A.  YES; SHE OPENED THE DOOR.  SHE WAS GOING TO GET OFF AND, THEN,
SHE TOLD ME TO TELL MY SISTER TO COME AND PICK HER UP IN THE MORNING SO
SHE COULD GO TO CHURCH. 

"Q.  TO TELL YOUR SISTER, DELFINA CABRERA, TO COME PICK HER UP IN THE
MORNING SO SHE COULD GO TO CHURCH? 

"A.  YES." 

AT THE CONCLUSION OF CASTILLEJA'S TESTIMONY THE FOLLOWING COLLOQUY
TOOK PLACE BETWEEN HIM AND THE PROSECUTOR: 

"Q.  NATIVIDAD (CASTILLEJA), WERE YOU IN LOVE WITH HERLINDA? 

"A.  NO. 

"Q.  WAS SHE IN LOVE WITH YOU? 

"A.  NO. 

"Q.  HAD YOU EVER TALKED ABOUT LOVE? 

"A.  NO. 

"Q.  HAD YOU EVER HAD ANY DATES WITH HER OTHER THAN TO TAKE HER
HOME? 

"A.  NO. WELL, JUST WHEN I BROUGHT HER FROM THERE. 

"Q.  JUST WHEN YOU BROUGHT HER FROM WORK? 

"A.  YES." 

ALL THIS TESTIMONY WAS QUITE PLAINLY INCONSISTENT WITH PETITIONER'S
CLAIM THAT HE HAD COME UPON HIS WIFE KISSING CASTILLEJA IN THE PARKED
CAR. 

SOME TIME AFTER PETITIONER'S CONVICTION HAD BEEN AFFIRMED CASTILLEJA
ISSUED A SWORN STATEMENT IN WHICH HE DECLARED THAT HE HAD GIVEN FALSE
TESTIMONY AT THE TRIAL.  RELYING ON THIS STATEMENT PETITIONER ASKED THE
TRIAL COURT TO ISSUE A WRIT OF HABEAS CORPUS.  HE CONTENDED THAT HE HAD
BEEN DENIED A FAIR TRIAL IN VIOLATION OF STATE AND FEDERAL
CONSTITUTIONS BECAUSE CASTILLEJA HAD TESTIFIED FALSELY, WITH THE
KNOWLEDGE OF THE PROSECUTOR, THAT HIS RELATIONSHIP WITH PETITIONER'S
WIFE HAD BEEN ONLY "THAT OF A FRIEND AND NEIGHBOR, AND THAT HE HAD HAD
NO 'DATES,' NOR OTHER RELATIONS WITH HER, WHEN IN TRUTH AND IN FACT THE
WITNESS HAD BEEN HER LOVER AND PARAMOUR, AND HAD HAD SEXUAL INTERCOURSE
WITH HER ON MANY OCCASIONS  ...  ."  PETITIONER FURTHER ALLEGED THAT HE
HAD NO KNOWLEDGE OF THIS ILLICIT INTERCOURSE AT THE TIME OF HIS TRIAL. 

A HEARING WAS HELD ON THE PETITION FOR HABEAS CORPUS.  CASTILLEJA WAS
CALLED AS A WITNESS.  HE CONFESSED HAVING SEXUAL INTERCOURSE WITH
PETITIONER'S WIFE ON FIVE OR SIX OCCASIONS WITHIN A RELATIVELY BRIEF
PERIOD BEFORE HER DEATH.  HE TESTIFIED THAT HE HAD INFORMED THE
PROSECUTOR OF THIS BEFORE TRIAL AND THE PROSECUTOR HAD TOLD HIM HE
SHOULD NOT VOLUNTEER ANY INFORMATION ABOUT SUCH INTERCOURSE BUT IF
SPECIFICALLY ASKED ABOUT IT TO ANSWER TRUTHFULLY.  THE PROSECUTOR TOOK
THE STAND AND ADMITTED THAT THESE STATEMENTS WERE TRUE.  HE CONCEDED
THAT HE HAD NOT TOLD PETITIONER ABOUT CASTILLEJA'S ILLICIT INTERCOURSE
WITH HIS WIFE.  HE ALSO ADMITTED THAT HE HAD NOT INCLUDED THIS
INFORMATION IN A WRITTEN STATEMENT TAKEN FROM CASTILLEJA PRIOR TO THE
TRIAL BUT INSTEAD HAD NOTED IT IN A SEPARATE RECORD.  AT THE CONCLUSION
OF THE HEARING THE TRIAL JUDGE DENIED THE PETITION FOR HABEAS CORPUS. 
PETITIONER THEN APPLIED TO THE TEXAS COURT OF CRIMINAL APPEALS FOR A
WRIT OF HABEAS CORPUS BUT THAT COURT, ACTING ON THE RECORD MADE AT THE
HEARING BEFORE THE TRIAL COURT, ALSO REFUSED TO ISSUE THE WRIT.  WE
GRANTED CERTIORARI, 353 U.S. 972.  TEXAS CONCEDES THAT PETITIONER HAS
EXHAUSTED ALL REMEDIES AVAILABLE TO HIM UNDER STATE LAW. 

UNDER THE GENERAL PRINCIPLES LAID DOWN BY THIS COURT IN MOONEY V.
HOLOHAN, 294 U.S. 103, AND PYLE V. KANSAS, 317 U.S. 213, PETITIONER WAS
NOT ACCORDED DUE PROCESS OF LAW.  IT CANNOT SERIOUSLY BE DISPUTED THAT
CASTILLEJA'S TESTIMONY, TAKEN AS A WHOLE, GAVE THE JURY THE FALSE
IMPRESSION THAT HIS RELATIONSHIP WITH PETITIONER'S WIFE WAS NOTHING
MORE THAN THAT OF CASUAL FRIENDSHIP.  THIS TESTIMONY WAS ELICITED BY
THE PROSECUTOR WHO KNEW OF THE ILLICIT INTERCOURSE BETWEEN CASTILLEJA
AND PETITIONER'S WIFE.  UNDOUBTEDLY CASTILLEJA'S TESTIMONY WAS
SERIOUSLY PREJUDICIAL TO PETITIONER.  IT TENDED SQUARELY TO REFUTE HIS
CLAIM THAT HE HAD ADEQUATE CAUSE FOR A SURGE OF "SUDDEN PASSION" IN
WHICH HE KILLED HIS WIFE.  IF CASTILLEJA'S RELATIONSHIP WITH
PETITIONER'S WIFE HAD BEEN TRUTHFULLY PORTRAYED TO THE JURY, IT WOULD
HAVE, APART FROM IMPEACHING HIS CREDIBILITY, TENDED TO CORROBORATE
PETITIONER'S CONTENTION THAT HE HAD FOUND HIS WIFE EMBRACING
CASTILLEJA.  IF PETITIONER'S DEFENSE HAD BEEN ACCEPTED BY THE JURY, AS
IT MIGHT WELL HAVE BEEN IF CASTILLEJA HAD NOT BEEN ALLOWED TO TESTIFY
FALSELY, TO THE KNOWLEDGE OF THE PROSECUTOR, HIS OFFENSE WOULD HAVE
BEEN REDUCED TO "MURDER WITHOUT MALICE" PRECLUDING THE DEATH PENALTY
NOW IMPOSED UPON HIM. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF
CRIMINAL APPEALS OF THE STATE OF TEXAS FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 
..END :







BANTA V. UNITED STATES 355 U.S. 33 


NO. 430.  DECIDED NOVEMBER 12, 1957 - APPEAL DISMISSED - REPORTED BELOW:
152 F. SUPP. 59. 


BANTA, TRUSTEE, V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














BANTA V. UNITED STATES 355 U.S. 34 


NO. 506.  DECIDED NOVEMBER 12, 1957 - 152 F. SUPP. 59, AFFIRMED. 


BANTA, TRUSTEE, V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY. 

PER CURIAM. 

THE MOTION FOR LEAVE TO USE RECORD AND JURISDICTIONAL STATEMENT IN
CASE NO. 430, OCTOBER TERM 1957, IN THIS CASE IS GRANTED.  THE MOTION
TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













TIMES FILM CORP. V. CITY OF CHICAGO 355 U.S. 35 


NO. 372.  DECIDED NOVEMBER 12, 1957 - 244 F.2D 432, REVERSED. 


CERTIORARI GRANTED AND JUDGMENT REVERSED.  ALBERTS V. CALIFORNIA 354
U.S. 476. 

TIMES FILM CORP. V. CITY OF CHICAGO ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT IS
REVERSED.  ALBERTS V. CALIFORNIA, 354 U.S. 476. 

MR. JUSTICE BURTON AND MR. JUSTICE CLARK ARE OF THE OPINION THAT THE
PETITION FOR CERTIORARI SHOULD NOT HAVE BEEN GRANTED. 
..END :









EDWARDS V. UNITED STATES 355 U.S. 36 


NO. 108, MISC.  DECIDED NOVEMBER 12, 1957. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CASE REMANDED WITH
INSTRUCTIONS TO AFFORD PETITIONER AN OPPORTUNITY TO SUBSTANTIATE HIS
ALLEGATIONS. 

EDWARDS V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR WRIT OF CERTIORARI ARE GRANTED.  THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IS VACATED AND
THE CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFORD THE
PETITIONER AN OPPORTUNITY TO SUBSTANTIATE HIS ALLEGATIONS.  FARLEY V.
UNITED STATES, 354 U.S. 521; JOHNSON V. UNITED STATES, 352 U.S. 565. 
..END :








CORSA V. TAWES, CONSTITUTING THE COMMISSION OF TIDEWATER FISHERIES OF
MARYLAND 355 U.S. 37 


NO. 416.  DECIDED NOVEMBER 12, 1957 - 149 F. SUPP. 771, AFFIRMED. 


CORSA ET AL. V. TAWES ET AL., CONSTITUTING THE COMMISSION OF TIDEWATER
FISHERIES OF MARYLAND, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :
















FORD V. UNITED STATES 355 U.S. 38 


NO. 82.  DECIDED NOVEMBER 12, 1957 - REPORTED BELOW:  237 F.2D 57. 


UPON SUGGESTION OF MOOTNESS, JUDGMENT VACATED AND CASE REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF CONVICTION AND
DISMISS THE INDICTMENT. 

FORD V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

UPON THE SUGGESTION OF MOOTNESS THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT IS VACATED AND THE CASE IS
REMANDED TO THE UNITED STATES DISTRICT COURT WITH DIRECTIONS TO VACATE
THE JUDGMENT OF CONVICTION AND TO DISMISS THE INDICTMENT. 
..END :










DISTRICT LODGE 34, LODGE 804, INTERNATIONAL ASSOCIATION OF MACHINISTS V.
L.P. CAVETT CO. 355 U.S. 39  


NO. 453.  DECIDED NOVEMBER 12, 1957 - CERTIORARI GRANTED AND JUDGMENT
REVERSED ON AUTHORITY OF CASES CITED - REPORTED BELOW: 166 OHIO ST.
508, 143 N.E.2D 840. 


DISTRICT LODGE 34, LODGE 804, INTERNATIONAL ASSOCIATION OF MACHINISTS,
ET AL. V. L.P. CAVETT CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT OF
THE SUPREME COURT OF OHIO IS REVERSED.  AMALGAMATED MEAT CUTTERS V.
FAIRLAWN MEATS, INC., 353 U.S. 20, 948; WEBER V. ANHEUSER-BUSCH, INC.,
348 U.S. 468; GARNER V. TEAMSTERS UNION, 346 U.S. 485. 
..END :












WOMETCO TELEVISION & THEATRE CO. V. UNITED STATES 355 U.S. 40 


NO. 438.  DECIDED NOVEMBER 12, 1957 - JUDGMENT AFFIRMED. 


WOMETCO TELEVISION & THEATRE CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















SWIFT V. BOROUGH OF BETHEL, PENNSYLVANIA 355 U.S. 40 


NO. 437.  DECIDED NOVEMBER 12, 1957 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  183 PA. SUPER.  219,
130 A.2D 240. 


SWIFT ET AL., TRUSTEES OF THE CONGREGATION OF JEHOVAH'S WITNESSES,
BETHEL UNIT, V. BOROUGH OF BETHEL, PENNSYLVANIA, ET AL. 

APPEAL FROM THE SUPERIOR COURT OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















NEW ORLEANS INSURANCE EXCHANGE V. UNITED STATES 355 U.S. 22 


NO. 399.  DECIDED OCTOBER 28, 1957 - 148 F. SUPP. 915, AFFIRMED. 


NEW ORLEANS INSURANCE EXCHANGE V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















HURT V. OKLAHOMA 355 U.S. 22 


NO. 402.  DECIDED OCTOBER 28, 1957 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  312 P.2D 169. 


HURT V. OKLAHOMA. 

APPEAL FROM THE CRIMINAL COURT OF APPEALS OF OKLAHOMA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















ASSOCIATION OF LITHUANIAN WORKERS V. BROWNELL 355 U.S. 23 


NO. 295.  DECIDED OCTOBER 28, 1957 - REPORTED BELOW:  101 U.S. APP. D.C.
73, 247 F.2D 64. 


CERTIORARI GRANTED; JUDGMENTS VACATED; AND CAUSES REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO DISMISS THE PROCEEDINGS AS MOOT. 

ASSOCIATION OF LITHUANIAN WORKERS ET AL. V. BROWNELL, ATTORNEY GENERAL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENTS ARE
VACATED AND THE CAUSES ARE REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO DISMISS THE PROCEEDINGS AS MOOT. 
..END :











GIBSON V. THOMPSON 355 U.S. 18 


NO. 142.  DECIDED OCTOBER 21, 1957 - 156 TEX. 593, 298 S.W.2D 97,
REVERSED AND REMANDED. 


IN THIS CASE ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, HELD:
THE PROOFS JUSTIFIED WITH REASON THE JURY'S CONCLUSION THAT EMPLOYER
NEGLIGENCE PLAYED A PART IN PRODUCING PETITIONER'S INJURY.  THEREFORE,
CERTIORARI IS GRANTED, THE JUDGMENT IS REVERSED AND THE CASE IS
REMANDED. 

GIBSON V. THOMPSON, TRUSTEE. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF TEXAS. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED, AND THE JUDGMENT OF THE
SUPREME COURT OF TEXAS IS REVERSED AND THE CASE IS REMANDED.  WE HOLD
THAT THE PROOFS JUSTIFIED WITH REASON THE JURY'S CONCLUSION THAT
EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING THE PETITIONER'S
INJURY.  ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500; WEBB V.
ILLINOIS CENTRAL R. CO. 352 U.S. 500; WEBB V. ILLINOIS CENTRAL R. CO.,
352 U.S. 512; FERGUSON V. MOORE-MCCORMACK LINES, INC., 352 U.S. 521;
SHAW V. ATLANTIC COAST LINE R. CO., 353 U.S. 920; FUTRELLE V. ATLANTIC
COAST LINE R. CO., 353 U.S. 920; DEEN V. GULF, C.&S.F.R. CO., 353 U.S.
925; THOMSON V. TEXAS & PACIFIC R. CO., 353 U.S. 926; ARNOLD V.
PANHANDLE & S.F.R. CO., 353 U.S. 360; RINGHISER V. CHESAPEAKE & O.R.
CO., 354 U.S. 901; MCBRIDE V. TOLEDO TERMINAL R. CO., 354 U.S. 517. 

FOR THE REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI
PACIFIC R. CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE
VIEW THAT THE WRIT OF CERTIORARI IS IMPROVIDENTLY GRANTED. 

MEMORANDUM OF MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE BURTON AND
MR. JUSTICE WHITTAKER JOIN.* 

*THIS MEMORANDUM APPLIES ALSO TO NO. 350, PALERMO V. LUCKENBACH
STEAMSHIP CO., POST, P. 20. 

FOR REASONS ELABORATED BY MR. JUSTICE FRANKFURTER AT THE LAST TERM,
352 U.S. 524, I THINK THAT CERTIORARI SHOULD HAVE BEEN DENIED IN EACH
OF THESE CASES.  HOWEVER, I CONTINUE IN THE VIEW, EXPRESSED AT THE LAST
TERM, 352 U.S. 559, THAT ONCE CERTIORARI HAS BEEN GRANTED IN SUCH
CASES, WE DISBELIEVERS, CONSISTENT WITH THE COURT'S CERTIORARI
PROCEDURE, SHOULD CONSIDER THEM ON THE MERITS.  FURTHER, MUCH AS I
DISAGREE, 352 U.S. 559, 562-564, WITH THE REASONING AND PHILOSOPHY OF
THE ROGERS CASE, WHICH STRIPS THE HISTORIC ROLE OF THE JUDGE IN A JURY
TRIAL OF ALL MEANINGFUL SIGNIFICANCE, I FEEL PRESENTLY BOUND TO BOW TO
IT.  APPLYING ROGERS TO THE PRESENT CASES, I AM FORCED TO CONCUR IN
JUDGMENTS OF REVERSAL IN NOS. 142 AND 350. 
..END :






















PALERMO V. LUCKENBACH STEAMSHIP CO., INC. 355 U.S. 20 


NO. 350.  DECIDED OCTOBER 21, 1957 - 246 F.2D 557, REVERSED AND
REMANDED. 


A JURY AWARDED DAMAGES TO PETITIONER, A LONGSHOREMAN, FOR PERSONAL
INJURIES SUSTAINED WHILE WORKING ON A SHIP OWNED AND OPERATED BY
RESPONDENT.  THE COURT OF APPEALS REVERSED ON THE GROUND THAT THE TRIAL
COURT HAD ERRED IN REFUSING TO CHARGE THE JURY THAT PETITIONER WAS NOT
ENTITLED TO ANY RECOVERY IF HE VOLUNTARILY CHOSE TO USE A PASSAGEWAY
KNOWN BY HIM TO BE UNSAFE AND IF THERE WAS ANY OTHER PASSAGEWAY KNOWN
TO HIM TO BE SAFE.  HELD:  CERTIORARI IS GRANTED, THE JUDGMENT IS
REVERSED AND THE CASE IS REMANDED. 

(A)  THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR IN REFUSING TO
GRANT SUCH AN INSTRUCTION. 

(B)  THE PETITIONER'S ALLEGED CHOICE OF A MORE DANGEROUS ROUTE DID
NOT, UNDER THE PROOFS, OPERATE TO BAR RECOVERY AS A MATTER OF LAW. 

(C)  THE JURY WAS PROPERLY INSTRUCTED THAT PETITIONER'S NEGLIGENCE,
IF ANY, WAS TO BE CONSIDERED IN MITIGATION OF DAMAGES UNDER THE RULE
APPLICABLE IN ACTIONS FOR PERSONAL INJURIES ARISING FROM MARITIME
TORTS. 

PALERMO V. LUCKENBACH STEAMSHIP CO., INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS GRANTED, AND THE JUDGMENT OF THE COURT
OF APPEALS IS REVERSED AND THE CASE IS REMANDED.*  WE HOLD THAT THE
TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR IN REFUSING TO CHARGE
RESPONDENT'S REQUEST NO. 12.  THE PETITIONER'S ALLEGED CHOICE OF A MORE
DANGEROUS ROUTE DID NOT, UNDER THE PROOFS, OPERATE TO BAR RECOVERY AS A
MATTER OF LAW.  THE JURY WAS PROPERLY INSTRUCTED THAT THE PETITIONER'S
NEGLIGENCE, IF ANY, WAS TO BE CONSIDERED IN MITIGATION OF DAMAGES UNDER
THE RULE APPLICABLE IN ACTIONS FOR PERSONAL INJURIES ARISING FROM
MARITIME TORTS.  POPE & TALBOT, INC., V. HAWN, 346 U.S. 406, 408-409;
CF. SOCONY-VACUUM OIL CO. V. SMITH, 305 U.S. 424. 

*AMENDED, POST, P. 910, TO PROVIDE FOR REMAND OF THE CASE TO THE
COURT OF APPEALS. 

FOR REASONS SET FORTH IN HIS OPINION IN ROGERS V. MISSOURI PACIFIC R.
CO., 352 U.S. 500, 524, MR. JUSTICE FRANKFURTER IS OF THE VIEW THAT THE
WRIT OF CERTIORARI IS IMPROVIDENTLY GRANTED. 

FOR MEMORANDUM OF MR. JUSTICE HARLAN, JOINED BY MR. JUSTICE BURTON
AND MR. JUSTICE WHITTAKER, SEE ANTE, P. 19. 
..END :





















HOBART V. HOBART 355 U.S. 21 


NO. 355.  DECIDED OCTOBER 21, 1957 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW:  166 OHIO ST. 112, 141 N.E.2D 470. 


HOBART V. HOBART. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















SCALES V. UNITED STATES 355 U.S. 1 


NO. 3.  ARGUED OCTOBER 10-11, 1956 - RESTORED TO THE DOCKET FOR
REARGUMENT JUNE 3, 1957 - DECIDED OCTOBER 14, 1957 - 227 F.2D 581,
REVERSED. 


UPON CONSIDERATION OF THE RECORD AND THE CONFESSION OF ERROR BY THE
SOLICITOR GENERAL, THE JUDGMENT IS REVERSED.  JENCKS V. UNITED STATES,
353 U.S. 657. 

SCALES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE ENTIRE RECORD AND THE CONFESSION OF ERROR
BY THE SOLICITOR GENERAL, THE JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT IS REVERSED.  JENCKS V. UNITED STATES,
353 U.S. 657. 
..END :








LIGHTFOOT V. UNITED STATES 355 U.S. 2 


NO. 4.  ARGUED OCTOBER 11, 1956 - RESTORED TO THE DOCKET FOR REARGUMENT
JUNE 3, 1957 - DECIDED OCTOBER 14, 1957 - 228 F.2D 861, REVERSED. 


UPON CONSIDERATION OF THE RECORD AND THE CONFESSION OF ERROR BY THE
SOLICITOR GENERAL, THE JUDGMENT IS REVERSED.  JENCKS V. UNITED STATES,
353 U.S. 657. 

LIGHTFOOT V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

UPON CONSIDERATION OF THE ENTIRE RECORD AND THE CONFESSION OF ERROR BY
THE SOLICITOR GENERAL, THE JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT IS REVERSED.  JENCKS V. UNITED STATES,
353 U.S. 657. 
..END :









VIRGINIA V. MARYLAND 355 U.S. 3 


NO. 12, ORIGINAL.  DECIDED OCTOBER 14, 1957. 


MOTION OF VIRGINIA FOR TEMPORARY RESTRAINING ORDER DENIED. 

MOTION FOR LEAVE TO WITHDRAW APPEARANCE OF J. LINDSAY ALMOND, JR., AS
COUNSEL FOR PLAINTIFF GRANTED. 

VIRGINIA V. MARYLAND. 

ON MOTIONS. 

PER CURIAM. 

THE MOTION OF THE COMMONWEALTH OF VIRGINIA FOR A TEMPORARY
RESTRAINING ORDER IS DENIED.  THE MOTION FOR LEAVE TO WITHDRAW THE
APPEARANCE OF J. LINDSAY ALMOND, JR., AS COUNSEL FOR THE PLAINTIFF, IS
GRANTED. 
..END :










ARKANSAS PUBLIC SERVICE COMMISSION V. UNITED STATES 355 U.S. 4 


NO. 197.  DECIDED OCTOBER 14, 1957 - 147 F. SUPP. 454, AFFIRMED. 


ARKANSAS PUBLIC SERVICE COMMISSION V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF ARKANSAS. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :















KRASNOV V. UNITED STATES 355 U.S. 5 


NO. 238.  DECIDED OCTOBER 14, 1957* - 143 F. SUPP. 184, AFFIRMED. 

*TOGETHER WITH NO. 254, COMFY MANUFACTURING CO. ET AL. V. UNITED
STATES, AND NO. 255, OPPENHEIMER V. UNITED STATES, ALSO ON APPEALS FROM
THE SAME COURT. 


KRASNOV ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER ARE OF THE OPINION THAT
PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :











AKRON, CANTON & YOUNGSTOWN RAILROAD CO. V. FROZEN FOOD EXPRESS 355 U.S.
6 


NO. 258.  DECIDED OCTOBER 14, 1957* - 148 F. SUPP. 399, AFFIRMED. 

*TOGETHER WITH NO. 263, AMERICAN TRUCKING ASSOCIATIONS, INC., V.
FROZEN FOOD EXPRESS, AND NO. 270, INTERSTATE COMMERCE COMMISSION V.
FROZEN FOOD EXPRESS ET AL., ALSO ON APPEALS FROM THE SAME COURT. 


AKRON, CANTON & YOUNGSTOWN RAILROAD CO. ET AL. V. FROZEN FOOD EXPRESS ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE HARLAN ARE OF THE OPINION
THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :









SIMPSON V. UNITED STATES 355 U.S. 7 


NO. 131.  DECIDED OCTOBER 14, 1957 - CERTIORARI GRANTED - 241 F.2D 222;
244 F.2D 212, 712, REVERSED. 


UPON CONSIDERATION OF THE RECORD AND THE CONFESSION OF ERROR BY THE
SOLICITOR GENERAL, THE JUDGMENTS ARE REVERSED.  HOFFMAN V. UNITED
STATES, 341 U.S. 479. 

SIMPSON ET AL. V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  UPON CONSIDERATION
OF THE ENTIRE RECORD AND THE CONFESSION OF ERROR BY THE SOLICITOR
GENERAL, THE JUDGMENTS OF THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT ARE REVERSED.  HOFFMAN V. UNITED STATES, 341 U.S. 479. 
..END :









MCCRARY V. ALADDIN RADIO INDUSTRIES, INC. 355 U.S. 8 


NO. 116.  DECIDED OCTOBER 14, 1957 - REPORTED BELOW: - TENN. APP. - ,
298 S.W.2D 770. 


CERTIORARI GRANTED; JUDGMENT VACATED AND CASE REMANDED FOR
CONSIDERATION IN THE LIGHT OF TEAMSTERS UNION V. KERRIGAN IRON WORKS,
353 U.S. 968. 

MCCRARY ET AL. V. ALADDIN RADIO INDUSTRIES, INC., ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
TENNESSEE, MIDDLE DIVISION. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS OF TENNESSEE, MIDDLE DIVISION, IS VACATED AND THE CASE
IS REMANDED FOR CONSIDERATION IN THE LIGHT OF TEAMSTERS UNION V.
KERRIGAN IRON WORKS, 353 U.S. 968. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






FEDERAL TRADE COMMISSION V. CRAFTS 355 U.S. 9 


NO. 229.  DECIDED OCTOBER 14, 1957 - CERTIORARI GRANTED AND JUDGMENT
REVERSED ON AUTHORITY OF CASES CITED - 244 F.2D 882, REVERSED. 


FEDERAL TRADE COMMISSION V. CRAFTS. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IS REVERSED. 
ENDICOTT JOHNSON CORP. V. PERKINS, 317 U.S. 501; OKLAHOMA PRESS
PUBLISHING CO. V. WALLING, 327 U.S. 186. 
..END :














NATIONWIDE TRAILER RENTAL SYSTEM, INC. V. UNITED STATES 355 U.S. 10 


NO. 114.  DECIDED OCTOBER 14, 1957 - JUDGMENT AFFIRMED. 


NATIONWIDE TRAILER RENTAL SYSTEM, INC., ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















WHITE, DBA KITSAP AUTOMATIC DISPENSER CO. V. WASHINGTON 355 U.S. 10 


NO. 184.  DECIDED OCTOBER 14, 1957 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  49 WASH. 2D 716, 306
P.2D 230. 


WHITE, ET AL., DOING BUSINESS AS KITSAP AUTOMATIC DISPENSER CO., ET AL.
V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















MONSON DRAY LINE, INC. V. MURPHY MOTOR FREIGHT LINES, INC. 355 U.S. 11 


NO. 307.  DECIDED OCTOBER 14, 1957 - 148 F. SUPP. 471, AFFIRMED. 


MONSON DRAY LINE, INC., V. MURPHY MOTOR FREIGHT LINES, INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

PER CURIAM. 

THE MOTION TO AFFIRM IS GRANTED AND THE JUDGMENT IS AFFIRMED. 
..END :


















WILLITS V. PENNSYLVANIA PUBLIC UTILITY COMMISSION 355 U.S. 11 


NO. 134.  DECIDED OCTOBER 14, 1957 - APPEAL DISMISSED AND CERTIORARI
DENIED. 


WILLITS ET AL. V. PENNSYLVANIA PUBLIC UTILITY COMMISSION ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :
















LINCOLN BUILDING ASSOCIATES V. BARR, DBA SWIM FOR HEALTH ASSN.  355 U.S.
12 


NO. 128.  DECIDED OCTOBER 14, 1957 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  1 N.Y.2D 413, 135
N.E.2D 801. 


LINCOLN BUILDING ASSOCIATES V. BARR ET AL., DOING BUSINESS AS SWIM FOR
HEALTH ASSOCIATION. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















COTTRELL V. PAWCATUCK CO. (FORMERLY C.B. COTTRELL & SONS CO.) 355 U.S.
12 


NO. 316.  DECIDED OCTOBER 14, 1957 - APPEAL DISMISSED AND CERTIORARI
DENIED - REPORTED BELOW: - DEL. - , 128 A.2D 225. 


COTTRELL V. PAWCATUCK COMPANY (FORMERLY C.B. COTTRELL & SONS CO.)  ET
AL. 

APPEAL FROM THE SUPREME COURT OF DELAWARE. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED. 
TREATING THE PAPERS WHEREON THE APPEAL WAS TAKEN AS A PETITION FOR WRIT
OF CERTIORARI, CERTIORARI IS DENIED. 
..END :














GIBRALTAR FACTORS CORP. V. SLAPO 355 U.S. 13 


NO. 278.  DECIDED OCTOBER 14, 1957 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  23 N.J. 459, 129 A.2D
567. 


GIBRALTAR FACTORS CORP. V. SLAPO ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :

















INTERSTATE COMMERCE COMMISSION V. PREMIER PEAT MOSS CORP. 355 U.S 13 


NO. 148.  DECIDED OCTOBER 14, 1957* - 147 F. SUPP. 169, AFFIRMED. 

*TOGETHER WITH NO. 149, BALTIMORE & OHIO RAILROAD CO. ET AL. V.
PREMIER PEAT MOSS CORP. ET AL., ON APPEAL FROM THE SAME COURT. 


INTERSTATE COMMERCE COMMISSION V. PREMIER PEAT MOSS CORP. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE HARLAN ARE OF THE OPINION
THAT PROBABLE JURISDICTION SHOULD BE NOTED. 
..END :












FOUR MAPLE DRIVE REALTY CORP. V. ABRAMS 355 U.S. 14 


NO. 181.  DECIDED OCTOBER 14, 1957 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  2 N.Y.2D 837, 140
N.E.2D 870. 


FOUR MAPLE DRIVE REALTY CORP. V. ABRAMS, NEW YORK STATE RENT
ADMINISTRATOR, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :















WATSON V. UNITED STATES 355 U.S. 14 


NO. 161.  DECIDED OCTOBER 14, 1957 - REPORTED BELOW:  137 CT. CL. 557. 


CERTIORARI GRANTED; JUDGMENT VACATED AND CASE REMANDED FOR
CONISDERATION IN THE LIGHT OF SERVICE V. DULLES, 354 U.S. 363. 

WATSON V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CLAIMS. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
UNITED STATES COURT OF CLAIMS IS VACATED AND THE CASE IS REMANDED FOR
CONSIDERATION IN LIGHT OF SERVICE V. DULLES, 354 U.S. 363. 
..END :













ALBANESE V. PIERCE 355 U.S. 15 


NO. 247.  DECIDED OCTOBER 14, 1957 - APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION - REPORTED BELOW:  144 CONN. 241, 129 A.2D
606. 


ALBANESE V. PIERCE ET AL. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

PER CURIAM. 

THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. 
..END :
















UNITED STATES V. VORREITER 355 U.S. 15 


NO. 168.  DECIDED OCTOBER 14, 1957 - 134 COLO. 543, 307 P.2D 475,
REVERSED. 


CERTIORARI GRANTED AND JUDGMENT REVERSED.  UNITED STATES V. SECURITY
TRUST & SAVINGS BANK, 340 U.S. 47. 

UNITED STATES V. VORREITER. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE JUDGMENT OF THE
SUPREME COURT OF COLORADO IS REVERSED.  UNITED STATES V. SECURITY TRUST
& SAVINGS BANK, 340 U.S. 47. 
..END :












UPHAUS V. WYMAN 355 U.S. 16 


NO. 332.  DECIDED OCTOBER 14, 1957 - REPORTED BELOW:  100 N.H. 436, 130
A.2D 278. 


JUDGMENT VACATED AND CAUSE REMANDED FOR CONSIDERATION IN THE LIGHT OF
SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234. 

UPHAUS V. WYMAN, ATTORNEY GENERAL OF NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

PER CURIAM. 

THE JUDGMENT IS VACATED AND THE CASE IS REMANDED TO THE SUPREME COURT
OF NEW HAMPSHIRE FOR CONSIDERATION IN LIGHT OF SWEEZY V. NEW HAMPSHIRE,
354 U.S. 234. 
..END :












LEWIS V. FLORIDA 355 U.S. 16 


NO. 80, MISC.  DECIDED OCTOBER 14, 1957 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 93 SO. 2D 46. 


LEWIS V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















MCGEE V. UNITED STATES 355 U.S. 17 


NO. 6, MISC.  DECIDED OCTOBER 14, 1957 - REPORTED BELOW:  242 F.2D 520. 


CERTIORARI GRANTED; JUDGMENT VACATED; AND CAUSE REMANDED FOR FURTHER
HEARING ON ALL ISSUES RAISED BY PETITIONER. 

MCGEE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  UPON
THE REPRESENTATIONS MADE IN THE SOLICITOR GENERAL'S BRIEF, AND AN
EXAMINATION OF THE RECORD, THE PETITION FOR CERTIORARI IS GRANTED, THE
JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
IS VACATED, AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR A
FURTHER HEARING UPON ALL ISSUES RAISED BY THE PETITIONER. 
..END :









GUTIERREZ V. ARIZONA 355 U.S. 17 


NO. 25, MISC.  DECIDED OCTOBER 14, 1957 - APPEAL DISMISSED AND
CERTIORARI DENIED - REPORTED BELOW: 82 ARIZ. 21, 307 P.2D 914. 


GUTIERREZ V. ARIZONA. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

PER CURIAM. 

THE APPEAL IS DISMISSED.  TREATING THE PAPERS WHEREON THE APPEAL WAS
TAKEN AS A PETITION FOR WRIT OF CERTIORARI, CERTIORARI IS DENIED. 
..END :

















WILSON V. GIRARD 354 U.S. 524 


NO. 1103.  ARGUED JULY 8, 1957.  - DECIDED JULY 11, 1957.  - 152 F.
SUPP. 21, AFFIRMED IN PART AND REVERSED IN PART. 


THE UNITED STATES AND JAPAN BECAME INVOLVED IN A CONTROVERSY AS TO
WHETHER AN AMERICAN SOLDIER SHOULD BE TRIED BY A JAPANESE COURT FOR
CAUSING THE DEATH OF A JAPANESE WOMAN IN JAPAN.  WHILE ON DUTY GUARDING
A MACHINE GUN ON A FIRING RANGE, HE FIRED FROM A GRENADE LAUNCHER AN
EMPTY CARTRIDGE CASE WHICH STRUCK THE JAPANESE WOMAN, CAUSING HER
DEATH.  AMERICAN AUTHORITIES TOOK THE POSITION THAT HE WAS ACTING AT
THE TIME "IN PERFORMANCE OF OFFICIAL DUTY," WITHIN THE MEANING OF
PARAGRAPH 3 OF ARTICLE XVII OF AN ADMINISTRATIVE AGREEMENT BETWEEN THE
UNITED STATES AND JAPAN, AS AMENDED BY A PROTOCOL, AND, THEREFORE, THE
UNITED STATES HAD THE "PRIMARY RIGHT" TO TRY HIM IN A SITUATION OF
CONCURRENT JURISDICTION.  JAPANESE AUTHORITIES CONTENDED THAT HE WAS
ACTING BEYOND THE SCOPE OF OFFICIAL DUTY AND THAT, THEREFORE, JAPAN HAD
THE "PRIMARY RIGHT" TO EXERCISE JURISDICTION.  AFTER LENGTHY
NEGOTIATIONS, AND WITH THE APPROVAL OF THE PRESIDENT, THE SECRETARY OF
STATE, AND THE SECRETARY OF DEFENSE, THE UNITED STATES YIELDED TO THE
JAPANESE POSITION, AND AGREED, UNDER A PROVISION OF THE AMENDED
ADMINISTRATIVE AGREEMENT, TO WAIVE WHATEVER JURISDICTION IT MIGHT HAVE
AND DELIVER HIM TO JAPANESE AUTHORITIES FOR TRIAL.  JAPAN THEN INDICTED
HIM FOR CAUSING DEATH BY WOUNDING.  HE SOUGHT A WRIT OF HABEAS CORPUS
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, WHICH
DENIED THE WRIT BUT GRANTED DECLARATORY RELIEF AND ENJOINED HIS
DELIVERY TO JAPANESE AUTHORITIES.  THIS COURT GRANTED CERTIORARI UNDER
28 U.S.C. SEC. 1254(1).  HELD: THE JUDGMENT GRANTING AN INJUNCTION AND
DECLARATORY RELIEF IS REVERSED; THE JUDGMENT DENYING A WRIT OF HABEAS
CORPUS IS AFFIRMED.  PP. 525-530. 

1.  IN THE LIGHT OF THE SENATE'S RATIFICATION OF THE SECURITY TREATY
BETWEEN THE UNITED STATES AND JAPAN AFTER CONSIDERATION OF THE
ACCOMPANYING ADMINISTRATIVE AGREEMENT, AND THE SENATE'S SUBSEQUENT
RATIFICATION OF THE NATO AGREEMENT, WITH KNOWLEDGE OF THE COMMITMENT TO
JAPAN UNDER THE ADMINISTRATIVE AGREEMENT TO ENTER INTO A SIMILAR
ARRANGEMENT, THE APPROVAL OF ARTICLE III OF THE SECURITY TREATY
AUTHORIZED THE MAKING OF THE ADMINISTRATIVE AGREEMENT AND THE
SUBSEQUENT PROTOCOL EMBODYING THE PROVISIONS GOVERNING JURISDICTION TO
TRY CRIMINAL OFFENSES.  PP. 526-529. 

2.  AS APPLIED HERE, THERE IS NO CONSTITUTIONAL OR STATUTORY BARRIER
TO THE PROVISION OF THE PROTOCOL UNDER WHICH THE UNITED STATES WAIVED
JURISDICTION TO TRY THE SOLDIER AND AGREED TO DELIVER HIM TO JAPANESE
AUTHORITIES FOR TRIAL.  PP. 529-530. 

3.  IN THE ABSENCE OF ENCROACHMENTS UPON CONSTITUTIONAL OR STATUTORY
LIMITATIONS, THE WISDOM OF THE ARRANGEMENT HERE INVOLVED IS EXCLUSIVELY
FOR THE DETERMINATION OF THE EXECUTIVE AND LEGISLATIVE BRANCHES OF THE
GOVERNMENT.  P. 530. 

WILSON, SECRETARY OF DEFENSE, ET AL. V. GIRARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 1108, GIRARD V. WILSON ET AL., ALSO ON CERTIORARI
TO THE SAME COURT, ARGUED AND DECIDED ON THE SAME DATES. 

PER CURIAM. 

JAPAN AND THE UNITED STATES BECAME INVOLVED IN A CONTROVERSY WHETHER
THE RESPONDENT GIRARD SHOULD BE TRIED BY A JAPANESE COURT FOR CAUSING
THE DEATH OF A JAPANESE WOMAN.  THE BASIS FOR THE DISPUTE BETWEEN THE
TWO GOVERNMENTS FULLY APPEARS IN THE AFFIDAVIT OF ROBERT DECHERT,
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE, AN EXHIBIT TO A
GOVERNMENT MOTION IN THE COURT BELOW, AND THE JOINT STATEMENT OF
SECRETARY OF STATE JOHN FOSTER DULLES AND SECRETARY OF DEFENSE CHARLES
E. WILSON, PRINTED AS APPENDICES TO THIS OPINION, POST, PP. 531, 544. 

GIRARD, A SPECIALIST THIRD CLASS IN THE UNITED STATES ARMY, WAS
ENGAGED ON JANUARY 30, 1957, WITH MEMBERS OF HIS CAVALRY REGIMENT IN A
SMALL UNIT EXERCISE AT CAMP WEIR RANGE AREA, JAPAN.  JAPANESE CIVILIANS
WERE PRESENT IN THE AREA, RETRIEVING EXPENDED CARTRIDGE CASES.  GIRARD
AND ANOTHER SPECIALIST THIRD CLASS WERE ORDERED TO GUARD A MACHINE GUN
AND SOME ITEMS OF CLOTHING THAT HAD BEEN LEFT NEARBY.  GIRARD HAD A
GRENADE LAUNCHER ON HIS RIFLE.  HE PLACED AN EXPENDED 30-CALIBER
CARTRIDGE CASE IN THE GRENADE LAUNCHER AND PROJECTED IT BY FIRING A
BLANK.  THE EXPENDED CARTRIDGE CASE PENETRATED THE BACK OF A JAPANESE
WOMAN GATHERING EXPENDED CARTRIDGE CASES AND CAUSED HER DEATH. 

THE UNITED STATES ULTIMATELY NOTIFIED JAPAN THAT GIRARD WOULD BE
DELIVERED TO THE JAPANESE AUTHORITIES FOR TRIAL.  THEREAFTER, JAPAN
INDICTED HIM FOR CAUSING DEATH BY WOUNDING.  GIRARD SOUGHT A WRIT OF
HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA.  THE WRIT WAS DENIED, BUT GIRARD WAS GRANTED DECLARATORY
RELIEF AND AN INJUNCTION AGAINST HIS DELIVERY TO THE JAPANESE
AUTHORITIES.  152 F. SUPP. 21.  THE PETITIONERS APPEALED TO THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA, AND, WITHOUT AWAITING ACTION
BY THAT COURT ON THE APPEAL, INVOKED THE JURISDICTION OF THIS COURT
UNDER 28 U.S.C. SEC. 1254(1).  GIRARD FILED A CROSS-PETITION FOR
CERTIORARI TO REVIEW THE DENIAL OF THE WRIT OF HABEAS CORPUS.  WE
GRANTED BOTH PETITIONS.  U.S. SUPREME COURT RULE 20; 354 U.S. 928. 

A SECURITY TREATY BETWEEN JAPAN AND THE UNITED STATES, SIGNED
SEPTEMBER 8, 1951, WAS RATIFIED BY THE SENATE ON MARCH 20, 1952, AND
PROCLAIMED BY THE PRESIDENT EFFECTIVE APRIL 28, 1952.  (FN1) ARTICLE
III OF THE TREATY AUTHORIZED THE MAKING OF ADMINISTRATIVE AGREEMENTS
BETWEEN THE TWO GOVERNMENTS CONCERNING "THE CONDITIONS WHICH SHALL
GOVERN THE DISPOSITION OF ARMED FORCES OF THE UNITED STATES OF AMERICA
IN AND ABOUT JAPAN  ...  ."  EXPRESSLY ACTING UNDER THIS PROVISION, THE
TWO NATIONS, ON FEBRUARY 28, 1952, SIGNED AN ADMINISTRATIVE AGREEMENT
COVERING, AMONG OTHER MATTERS, THE JURISDICTION OF THE UNITED STATES
OVER OFFENSES COMMITTED IN JAPAN BY MEMBERS OF THE UNITED STATES ARMED
FORCES, AND PROVIDING THAT JURISDICTION IN ANY CASE MIGHT BE WAIVED BY
THE UNITED STATES.  (FN2)  THIS AGREEMENT BECAME EFFECTIVE ON THE SAME
DATE AS THE SECURITY TREATY (APRIL 28, 1952) AND WAS CONSIDERED BY THE
SENATE BEFORE CONSENT WAS GIVEN TO THE TREATY. 

ARTICLE XVII, PARAGRAPH 1, OF THE ADMINISTRATIVE AGREEMENT PROVIDED
THAT UPON THE COMING INTO EFFECT OF THE "AGREEMENT BETWEEN THE PARTIES
TO THE NORTH ATLANTIC TREATY REGARDING THE STATUS OF THEIR FORCES,"
(FN3) SIGNED JUNE 19, 1951, THE UNITED STATES WOULD CONCLUDE WITH JAPAN
AN AGREEMENT ON CRIMINAL JURISDICTION SIMILAR TO THE CORRESPONDING
PROVISIONS OF THE NATO AGREEMENT.  THE NATO AGREEMENT BECAME EFFECTIVE
AUGUST 23, 1953, AND THE UNITED STATES AND JAPAN SIGNED ON SEPTEMBER
29, 1953, EFFECTIVE OCTOBER 29, 1953, A PROTOCOL AGREEMENT (FN4)
PURSUANT TO THE COVENANT IN PARAGRAPH 1 OF ARTICLE XVII. 

PARAGRAPH 3 OF ARTICLE XVII, AS AMENDED BY THE PROTOCOL, DEALT WITH
CRIMINAL OFFENSES IN VIOLATION OF THE LAWS OF BOTH NATIONS AND
PROVIDED: 

"3.  IN CASES WHERE THE RIGHT TO EXERCISE JURISDICTION IS CONCURRENT
THE FOLLOWING RULES SHALL APPLY: 

"(A)  THE MILITARY AUTHORITIES OF THE UNITED STATES SHALL HAVE THE
PRIMARY RIGHT TO EXERCISE JURISDICTION OVER MEMBERS OF THE UNITED
STATES ARMED FORCES OR THE CIVILIAN COMPONENT IN RELATION TO: 

"(I)  OFFENSES SOLELY AGAINST THE PROPERTY OR SECURITY OF THE UNITED
STATES, OR OFFENSES SOLELY AGAINST THE PERSON OR PROPERTY OF ANOTHER
MEMBER OF THE UNITED STATES ARMED FORCES OR THE CIVILIAN COMPONENT OR
OF A DEPENDENT: 

"(II)  OFFENSES ARISING OUT OF ANY ACT OR OMISSION DONE IN THE
PERFORMANCE OF OFFICIAL DUTY. 

"(B)  IN THE CASE OF ANY OTHER OFFENSE THE AUTHORITIES OF JAPAN SHALL
HAVE THE PRIMARY RIGHT TO EXERCISE JURISDICTION. 

"(C)  IF THE STATE HAVING THE PRIMARY RIGHT DECIDES NOT TO EXERCISE
JURISDICTION, IT SHALL NOTIFY THE AUTHORITIES OF THE OTHER STATE AS
SOON AS PRACTICABLE.  THE AUTHORITIES OF THE STATE HAVING THE PRIMARY
RIGHT SHALL GIVE SYMPATHETIC CONSIDERATION TO A REQUEST FROM THE
AUTHORITIES OF THE OTHER STATE FOR A WAIVER OF ITS RIGHT IN CASES WHERE
THAT OTHER STATE CONSIDERS SUCH WAIVER TO BE OF PARTICULAR
IMPORTANCE." 

ARTICLE XXVI OF THE ADMINISTRATIVE AGREEMENT ESTABLISHED A JOINT
COMMITTEE OF REPRESENTATIVES OF THE UNITED STATES AND JAPAN TO CONSULT
ON ALL MATTERS REQUIRING MUTUAL CONSULTATION REGARDING THE
IMPLEMENTATION OF THE AGREEMENT; AND PROVIDED THAT IF THE COMMITTEE "
...  IS UNABLE TO RESOLVE ANY MATTER, IT SHALL REFER THAT MATTER TO THE
RESPECTIVE GOVERNMENTS FOR FURTHER CONSIDERATION THROUGH APPROPRIATE
CHANNELS." 

IN THE LIGHT OF THE SENATE'S RATIFICATION OF THE SECURITY TREATY
AFTER CONSIDERATION OF THE ADMINISTRATIVE AGREEMENT, WHICH HAD ALREADY
BEEN SIGNED, AND ITS SUBSEQUENT RATIFICATION OF THE NATO AGREEMENT,
WITH KNOWLEDGE OF THE COMMITMENT TO JAPAN UNDER THE ADMINISTRATIVE
AGREEMENT, WE ARE SATISFIED THAT THE APPROVAL OF ARTICLE III OF THE
SECURITY TREATY AUTHORIZED THE MAKING OF THE ADMINISTRATIVE AGREEMENT
AND THE SUBSEQUENT PROTOCOL EMBODYING THE NATO AGREEMENT PROVISIONS
GOVERNING JURISDICTION TO TRY CRIMINAL OFFENSES. 

THE UNITED STATES CLAIMED THE RIGHT TO TRY GIRARD UPON THE GROUND
THAT HIS ACT, AS CERTIFIED BY HIS COMMANDING OFFICER, WAS "DONE IN THE
PERFORMANCE OF OFFICIAL DUTY" AND THEREFORE THE UNITED STATES HAD
PRIMARY JURISDICTION.  JAPAN INSISTED THAT IT HAD PROOF THAT GIRARD'S
ACTION WAS WITHOUT THE SCOPE OF HIS OFFICIAL DUTY AND THEREFORE THAT
JAPAN HAD THE PRIMARY RIGHT TO TRY HIM. 

THE JOINT COMMITTEE, AFTER PROLONGED DELIBERATIONS, WAS UNABLE TO
AGREE.  THE ISSUE WAS REFERRED TO HIGHER AUTHORITY, WHICH AUTHORIZED
THE UNITED STATES REPRESENTATIVES ON THE JOINT COMMITTEE TO NOTIFY THE
APPROPRIATE JAPANESE AUTHORITIES, IN ACCORDANCE WITH PARAGRAPH 3(C) OF
THE PROTOCOL, THAT THE UNITED STATES HAD DECIDED NOT TO EXERCISE, BUT
TO WAIVE, WHATEVER JURISDICTION IT MIGHT HAVE IN THE CASE.  THE
SECRETARY OF STATE AND THE SECRETARY OF DEFENSE DECIDED THAT THIS
DETERMINATION SHOULD BE CARRIED OUT.  THE PRESIDENT CONFIRMED THEIR
JOINT CONCLUSION. 

A SOVEREIGN NATION HAS EXCLUSIVE JURISDICTION TO PUNISH OFFENSES
AGAINST ITS LAWS COMMITTED WITHIN ITS BORDERS, UNLESS IT EXPRESSLY OR
IMPLIEDLY CONSENTS TO SURRENDER ITS JURISDICTION.  THE SCHOONER
EXCHANGE V. M'FADDON, 7 CRANCH 116, 136.  JAPAN'S CESSION TO THE UNITED
STATES OF JURISDICTION TO TRY AMERICAN MILITARY PERSONNEL FOR CONDUCT
CONSTITUTING AN OFFENSE AGAINST THE LAWS OF BOTH COUNTRIES WAS
CONDITIONED BY THE COVENANT OF ARTICLE XVII, SECTION 3, PARAGRAPH (C)
OF THE PROTOCOL THAT: 

"...  THE AUTHORITIES OF THE STATE HAVING THE PRIMARY RIGHT SHALL
GIVE SYMPATHETIC CONSIDERATION TO A REQUEST FROM THE AUTHORITIES OF THE
OTHER STATE FOR A WAIVER OF ITS RIGHT IN CASES WHERE THAT OTHER STATE
CONSIDERS SUCH WAIVER TO BE OF PARTICULAR IMPORTANCE." 

THE ISSUE FOR OUR DECISION IS THEREFORE NARROWED TO THE QUESTION
WHETHER, UPON THE RECORD BEFORE US, THE CONSTITUTION OR LEGISLATION
SUBSEQUENT TO THE SECURITY TREATY PROHIBITED THE CARRYING OUT OF THIS
PROVISION AUTHORIZED BY THE TREATY FOR WAIVER OF THE QUALIFIED
JURISDICTION GRANTED BY JAPAN.  WE FIND NO CONSTITUTIONAL OR STATUTORY
BARRIER TO THE PROVISION AS APPLIED HERE.  IN THE ABSENCE OF SUCH
ENCROACHMENTS, THE WISDOM OF THE ARRANGEMENT IS EXCLUSIVELY FOR THE
DETERMINATION OF THE EXECUTIVE AND LEGISLATIVE BRANCHES. 

THE JUDGMENT OF THE DISTRICT COURT IN NO. 1103 IS REVERSED, AND ITS
JUDGMENT IN NO. 1108 IS AFFIRMED. 

FN1  3 U.S. TREATIES AND OTHER INTERNATIONAL AGREEMENTS 3329;
T.I.A.S. NO. 2491. 

FN2  3 U.S. TREATIES AND OTHER INTERNATIONAL AGREEMENTS 3341;
T.I.A.S. NO. 2492. 

FN3  4 U.S. TREATIES AND OTHER INTERNATIONAL AGREEMENTS 1792;
T.I.A.S. NO. 2846. 

FN4  4 U.S. TREATIES AND OTHER INTERNATIONAL AGREEMENTS 1846;
T.I.A.S. NO. 2848. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

APPENDIX A.* 

*THIS AFFIDAVIT WAS OFFERED BY THE GOVERNMENT AND ACCEPTED BY THE
COURT BELOW UNDER SEAL.  IN THIS POSTURE IT IS PART OF THE RECORD
BEFORE US.  AT THE ORAL ARGUMENT NO OBJECTION WAS MADE BY THE
GOVERNMENT OR COUNSEL FOR GIRARD AGAINST REMOVING THE SEAL.  AS THE
COURT CONSIDERS THAT THE ISSUES IN THIS CASE SHOULD BE DECIDED ON A
FULLY DISCLOSED RECORD, THE AFFIDAVIT IS ORDERED UNSEALED. 

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. 

WILLIAM S. GIRARD, UNITED STATES ARMY SPECIALIST 3/C, PETITIONER VS.
CHARLES E. WILSON, SECRETARY OF DEFENSE ET AL, RESPONDENTS (H.C. 47
57). 

AFFIDAVIT WITH RESPECT TO FACTS. 

COMMONWEALTH OF PENNSYLVANIA CITY AND COUNTY OF PHILADELPHIA (SS). 

ROBERT DECHERT, BEING FIRST DULY SWORN, DEPOSES AND SAYS: 

I AM THE GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE.  PERSONNEL OF
MY OFFICE COLLECT, COLLATE, AND MAINTAIN FILES ON THE ARRANGEMENTS WITH
REGARD TO THE EXERCISE OF CRIMINAL JURISDICTION ENTERED INTO BETWEEN
THE UNITED STATES AND FOREIGN COUNTRIES.  I HAVE REVIEWED AND AM
FAMILIAR WITH THE VARIOUS COMMUNICATIONS RELATING TO THE INCIDENT
INVOLVING SPECIALIST THIRD CLASS WILLIAM S. GIRARD WHICH OCCURRED IN
JAPAN ON 30 JANUARY 1957 AND STATE, AS A RESULT OF SUCH REVIEW, AND
UPON INFORMATION AND BELIEF, THAT THE FACTS SURROUNDING THAT INCIDENT
ARE AS FOLLOWS: 

THE SITUATION AT CAMP WEIR FIRING RANGE, JANUARY 30. 

ON THE AFTERNOON OF 30 JANUARY 1957, ABOUT 30 MEMBERS OF COMPANY F,
8TH CAVALRY REGIMENT, WERE ENGAGED IN A SMALL UNIT EXERCISE AT CAMP
WEIR RANGE AREA, JAPAN, INVOLVING AN ATTACK BY ONE SQUAD ON A HILL
DEFENDED BY ANOTHER SQUAD.  SPECIALIST 3/C WILLIAM S. GIRARD WAS IN THE
"ATTACKING" FORCE.  THE COMMANDING OFFICER OF THE 8TH CAVALRY REGIMENT,
COLONEL HERBERT A. JORDAN, STATES THAT DURING THE MORNING HE WAS
APPALLED AT THE LARGE NUMBERS OF JAPANESE CIVILIAN TRESPASSERS PRESENT
IN THE AREA AND INTERFERING WITH THE CONDUCT OF THE EXERCISE.  HE
ESTIMATES THAT THEIR NUMBER WAS IN EXCESS OF 150.  IN ONE CASE A GROUP
OF SIX TO EIGHT CIVILIANS POUNCED ON A MACHINE GUN POSITION AS SOON AS
THE GUN CEASED FIRING AND, BEFORE THE GUNNER COULD CLEAR HIS WEAPON,
PHYSICALLY PUSHED HIM AWAY FROM THE GUN IN ORDER TO RETRIEVE EXPENDED
CARTRIDGE CASES. 

THE MANEUVER AREA CONSISTS OF APPROXIMATELY EIGHT SQUARE MILES.  IT
IS PROVIDED BY THE JAPANESE GOVERNMENT FOR PART-TIME USE OF UNITED
STATES FORCES.  THE JAPANESE DEFENSE FORCE USES THE SAME AREA ABOUT 40%
OF THE TIME.  WHEN THE AREA IS NOT IN USE BY EITHER THE UNITED STATES
OR JAPANESE ARMED FORCES, JAPANESE CIVILIANS ARE PERMITTED TO FARM OR
OTHERWISE USE THE AREA.  THE JAPANESE CIVILIANS OF THE LOCAL VILLAGE
FOLLOW THE PRACTICE OF SCAVENGING THE EXPENDED BRASS CARTRIDGE CASES
FROM THE MANEUVER AREA. 

UPON THE FAILURE OF EFFORTS OF MILITARY PERSONNEL TO MOVE THE
TRESPASSERS OUT OF THE DANGER AREA, COL. JORDAN DIRECTED THAT ALL BALL
AMMUNITION BE WITHDRAWN FROM THE TROOPS, AND THAT BLANK AMMUNITION BE
SUBSTITUTED IN THE AFTERNOON EXERCISE.  HE ALSO DIRECTED THAT THE
JAPANESE POLICE BE CONTACTED FOR ASSISTANCE IN CLEARING TRESPASSERS
FROM THE AREA, SO THAT NORMAL FIELD TRAINING MIGHT BE RESUMED.  UP
UNTIL THE EARLY AFTERNOON, WHEN THE SHOOTING INCIDENT OCCURRED, THIS
ASSISTANCE WAS NOT FORTHCOMING. 

THE SHOOTING INCIDENT. 

AFTER ONE SQUAD HAD ATTACKED THE HILL AND BEFORE THE SQUADS HAD
CHANGED THEIR RESPECTIVE POSITIONS SO THAT THE ATTACKING FORCE BECAME
THE DEFENDING FORCE, AND VICE VERSA, TWO SOLDIERS, GIRARD AND
SPECIALIST 3/C VICTOR N. NICKEL, OF THE "DEFENDING" FORCE, WERE ORDERED
BY THEIR PLATOON LEADER, SECOND LIEUTENANT BILLY M. MAHON, WHO WAS
PERSONALLY DIRECTING THEIR ACTIVITIES TO GUARD A MACHINE GUN AND SOME
ITEMS OF PERSONAL CLOTHING THAT HAD BEEN LEFT ON A NEARBY RIDGE. 

GIRARD IN AN EARLY STATEMENT MADE DURING THE COURSE OF THE
INVESTIGATION, STATED THAT HE WAS ORDERED TO GET THE JAPANESE AWAY.  HE
IS QUOTED AS HAVING STATED THAT HE DID NOT RECEIVE ORDERS TO FIRE AT
THEM TO GET THEM AWAY.  THERE IS NO EVIDENCE, OTHER THAN THE STATEMENT
OF GIRARD, THAT HE WAS ORDERED TO GET THE JAPANESE AWAY.    LIEUT.
MAHON STATED THAT HE WAS ADVISED THAT A MACHINE GUN AND SEVERAL FIELD
JACKETS HAD BEEN LEFT ON THE OTHER SIDE OF HILL 655 AND THAT HE
INSTRUCTED SPECIALIST 3/C GIRARD AND SPECIALIST 3/C NICKEL TO GUARD THE
MACHINE GUN AND KEEP THE JAPANESE FROM STEALING PERSONAL EQUIPMENT. 
THERE WERE ABOUT 20 OR 30 JAPANESE IN THE AREA; SOME WERE NEAR THE
MACHINE GUN.  SPECIALIST 3/C VICTOR N. NICKEL SAID THE JAPANESE WERE
"JUST COLLECTING THE CARTRIDGES, SO THERE WAS NO NEED OF CHASING THEM
AWAY". 

GIRARD HAD A GRENADE LAUNCHER ON HIS RIFLE.  HE HAD BEEN ARMED WITH
THIS SAME WEAPON DURING THE MORNING EXERCISES IN WHICH HE HAD
PARTICIPATED AND DURING WHICH HE HAD FIRED 80 ROUNDS OF BALL
AMMUNITION.  AFTER THE TWO SOLDIERS HAD ARRIVED ON THE RIDGE, GIRARD,
ON TWO OCCASIONS, PLACED AN EXPENDED 30-CALIBER CARTRIDGE CASE IN THE
GRENADE LAUNCHER AND PROJECTED IT BY FIRING A BLANK.  AT HIS SECOND
SHOT, A JAPANESE WOMAN, MRS. NAKA SAKAI, FELL.  AN AUTOPSY DISCLOSED
THAT AN EXPENDED 30-CALIBER CARTRIDGE CASE HAD PENETRATED HER BACK IN
AN UPWARD DIRECTION TO A DEPTH OF 3 1/2-4 INCHES, CAUSING HER DEATH. 
THE EXACT DISTANCE BETWEEN GIRARD AND THE VICTIM AT THE TIME OF THE
INCIDENT IS UNCERTAIN.  THE JAPANESE WITNESSES PUT IT ABOUT EIGHTEEN
METERS (APPROXIMATELY 20 YARDS).  ON ONE OCCASION, GIRARD STEPPED OFF
WHAT HE THOUGHT TO BE THE DISTANCE AND FOUND IT TO BE 29 FEET; ON OTHER
OCCASIONS, HE HAS ESTIMATED IT TO BE 20-30 YARDS.  NICKEL PUTS IT AS 25
30 YARDS.  GIRARD HAS STATED THAT HE DID NOT INTENTIONALLY POINT THE
RIFLE AT THE WOMAN AND DID NOT BELIEVE THE CARTRIDGE CASE WOULD INJURE
ANYONE IF IT HIT THEM. 

ACCORDING TO THE U.S. MILITARY AUTHORITIES IN JAPAN, THE ACT OF
FIRING AN EMPTY SHELL CASE FROM A GRENADE LAUNCHER IS NOT AUTHORIZED. 

ONOSAKI, A JAPANESE WITNESS, STATED THAT GIRARD, AFTER ENTICING HIM
AND THE VICTIM TOWARD GIRARD BY THROWING SOME BRASS ON THE GROUND AND
INDICATING THAT IT WAS ALL RIGHT FOR THEM TO PICK IT UP, SUDDENLY
SHOUTED FOR THEM TO GET OUT AND THEREUPON FIRED ONE SHOT IN THE
DIRECTION OF ONOSAKI.  AS THE VICTIM WAS RUNNING AWAY, ONOSAKI STATED
THAT GIRARD, HOLDING HIS RIFLE AT THE WAIST, FIRED A SECOND SHOT AT THE
VICTIM AT A DISTANCE OF ABOUT EIGHT TO TEN METERS.  THIS TESTIMONY IS
CORROBORATED IN PART BY OTHER JAPANESE WHO WERE LOCATED AT A DISTANCE
OF FROM 100-150 METERS. 

BOTH GIRARD AND NICKEL HAVE MADE A NUMBER OF STATEMENTS.  NICKEL AT
FIRST DENIED KNOWING ANYTHING ABOUT THE INCIDENT.  GIRARD ADMITTED ONLY
THAT HE HAD FIRED ONE ROUND OVER THE HEADS OF THE JAPANESE.  BOTH
GRADUALLY CHANGED THEIR TESTIMONY.  NICKEL, BUT NOT GIRARD, ADMITS TO
THROWING BRASS ON THE GROUND.  GIRARD ADMITS THAT HE KNEW HIS WEAPON,
FIRED IN THE MANNER IN WHICH HE FIRED IT, WAS FAIRLY ACCURATE AT SHORT
RANGES, BUT DENIES THAT HE KNEW OF ITS STRIKING POWER; HE FURTHER
STATES THAT HE FIRED FROM THE WAIST OVER THE WOMAN'S HEAD AND DID NOT
INTEND TO HIT OR WOUND HER, BUT ONLY TO SCARE THE JAPANESE AWAY. 

IN ONE STATEMENT, NICKEL, AFTER ADMITTING THAT HE HAD COLLECTED A
PILE OF EMPTY CARTRIDGES AND HAD ON ABOUT FIVE OCCASIONS THROWN THEM
TOWARD THE JAPANESE, THE NEAREST OF WHOM WAS A LITTLE OVER 10 YARDS
AWAY, HAS THIS TO SAY:  "TO TELL YOU THE TRUTH I DON'T KNOW IF GIRARD
HAD TOLD YOU THIS OR NOT, BUT GIRARD TOLD ME TO THROW THOSE
CARTRIDGES.  THE PURPOSE WAS TO SCARE THE JAPANESE OFF BY FIRING OVER
THEIR HEADS WHEN THEY CAME TO PICK UP THE CARTRIDGES."  AFTER STATING
THAT ABOUT SIX JAPANESE CAME DOWN TO PICK UP THE CARTRIDGES, NICKEL
CONCLUDES:  "HE (GIRARD) STOOD UP CARRYING THE GUN, AND WENT ABOUT TWO
FEET TO MY RIGHT.  JAPANESE PEOPLE STARTED TO RUN AWAY, PROBABLY
THINKING THAT THEY WERE BEING CHASED.  THIS ONE MAMA-SAN ALSO RAN. 
THEN GIRARD FIRED HOLDING THE GUN AT HIS HIP  ...  HE HELD THE GUN AT
THE HIP AND FIRED IN THE DIRECTION OF THE WOMAN  ...  AT AN ANGLE OF
ABOUT 45 DEGREES FROM HIS BODY.  HE FIRED OVER THE HEAD OF THIS PERSON
...  I REGARD MYSELF AS A FRIEND OF GIRARD IN MY COMPANY.  IF I SAID I
SAW (THE INCIDENT), I WOULD BE LETTING HIM DOWN, SO I LIED.  THEN I
WENT TO CAMP DREW AND RECEIVED VARIOUS ADVICE FROM AN INVESTIGATOR
THERE.  THEN I DECIDED TO TELL THE TRUTH.  ONE OTHER REASON IS THAT
GIRARD TOLD THE INVESTIGATOR THAT NICKEL WAS WATCHING." 

IN THIS CONNECTION, GIRARD SAYS:  "  ...  WHILE I WAS GOING TOWARD
THE MACHINE GUN, I DID TALK TO NICKEL.  I DO NOT RECALL WHAT I TALKED
TO HIM ABOUT  ...  BUT I AM POSITIVE THAT NOTHING WAS SPOKEN ABOUT
CARTRIDGES  ...  I DO NOT REMEMBER TELLING HIM TO THROW SOME
CARTRIDGES.  IF I SAID I DID NOT POSITIVELY TALK TO HIM ABOUT IT I'D BE
TELLING A LIE  ...  WHAT I WANT TO SAY IS, AS FAR AS I CAN REMEMBER, I
DO NOT RECALL TALKING ABOUT IT."  GIRARD STATES THAT HE HAS QUALIFIED
AS A MARKSMAN (AVERAGE SHOT) AND A SHARPSHOOTER (BETTER THAN AVERAGE
SHOT) WITH THE M-1 WITH WHICH HE WAS ARMED ON THE DAY IN QUESTION, AND
THAT HE TWICE HAS QUALIFIED AS AN EXPERT WITH THE .45 CALIBER PISTOL;
THAT HE HAS SEEN SOLDIERS FIRE EMPTY CARTRIDGES OUT OF A GRENADE
LAUNCHER ON ABOUT 10 OCCASIONS; AND HE SAID, "I DID NOT HAVE AN EXACT
IDEA HOW FAR AN EMPTY CARTRIDGE WOULD TRAVEL, BUT I KNEW THAT IT
TRAVELLED QUITE A WAYS  ...  PRIOR TO THAT INCIDENT I KNEW THAT THE
EMPTY CARTRIDGE FIRED LIKE THAT WOULD TRAVEL STRAIGHT FORWARD." 

AT A LATER TIME SPECIALIST 3/C NICKEL REQUESTED THAT HE BE PERMITTED
TO MAKE A FURTHER STATEMENT WITH RESPECT TO THE CASE.  UPON THIS
OCCASION HE STATED THAT GIRARD HAD ASKED HIM TO GATHER UP SOME EMPTY
CARTRIDGE CASES FOR THE PURPOSE OF LURING THE JAPANESE PEOPLE CLOSER TO
THEIR POSITION; THAT HE AND GIRARD WERE IN A FOXHOLE TOGETHER AND THAT
AT GIRARD'S REQUEST, IN ORDER TO DRAW THE JAPANESE CLOSER, HE, NICKEL,
THREW EMPTY CARTRIDGE CASES FROM THE FOXHOLE; THAT GIRARD SAID, "THROW
THE BRASS A LITTLE CLOSER"; THAT GIRARD MOTIONED WITH HIS HANDS FOR THE
BRASS PICKERS TO COME CLOSER AND SAID, "DAIJOBU", WHICH MEANT FOR THEM
TO COME CLOSER; THAT GIRARD FIRED AT THE JAPANESE MAN, AND THEN FIRED
AT THE JAPANESE WOMAN AND SHOT HER; THAT GIRARD WAS IN A STANDING
POSITION AND FIRED FROM THE SHOULDER; THAT HE (GIRARD) TRIED TO GET THE
JAPANESE TO TAKE THE WOMAN'S BODY AWAY AFTER HE SHOT HER; AND THAT
GIRARD TOLD HIM (NICKEL) THAT IF "THEY" ASKED HOW HE HELD HIS WEAPON TO
SAY HE FIRED FROM THE WAIST AND ALSO TO SAY THAT "WE DID NOT THROW ANY
BRASS." 

THE CERTIFICATE AS TO OFFICIAL DUTY 

ON 7 FEBRUARY 1957 GIRARD'S COMMANDING OFFICER FILED A CERTIFICATE OF
OFFICIAL DUTY WITH THE LOCAL JAPANESE AUTHORITIES.  THAT CERTIFICATE
READ AS FOLLOWS:

      COMPANY F 8TH CAVALRY REGIMENT 7 FEBRUARY 1957 

SUBJECT:  CERTIFICATE AS TO OFFICIAL DUTY 

THRU:  PROVOST MARSHAL REGIONAL CAMP WHITTINGTON APO 201 

TO:  CHIEF PROCURATOR MAEBASHI DISTRICT MAEBASHI CITY, HONSHU, JAPAN 

1.  PURSUANT TO THE PROVISIONS OF PARAGRAPH 43 OF THE AGREED VIEWS OF
THE CRIMINAL JURISDICTION SUBCOMMITTEE WITH RESPECT TO THE PROTOCOL
AMENDING ARTICLE XVII OF THE ADMINISTRATIVE AGREEMENT BETWEEN THE
UNITED STATES AND JAPAN, I CERTIFY THAT GIRARD, WILLIAM S, RA 16 452
809, SPECIALIST THIRD CLASS, COMPANY F, 8TH CAVALRY REGIMENT, APO 201,
WAS IN THE PERFORMANCE OF HIS OFFICIAL DUTY AT 1350 HOURS, 30 JANUARY
1957, CAMP WEIR RANGE AREA, WHEN HE WAS INVOLVED IN THE FOLLOWING
INCIDENT:  ON 30 JANUARY 1957, 2ND BATTALION, 8TH CAVALRY REGIMENT, WAS
ENGAGED IN ROUTINE TRAINING AT CAMP WEIR RANGE AREA.  COMPANY F WAS
CONDUCTING BLANK FIRING EXERCISES.  SPECIALIST THIRD CLASS WILLIAM S.
GIRARD WAS INSTRUCTED BY HIS PLATOON LEADER TO MOVE NEAR A POSITION
NEAR AN UNGUARDED MACHINE GUN TO GUARD THE MACHINE GUN AND ITEMS OF
FIELD EQUIPMENT THAT WERE IN THE IMMEDIATE AREA.  GIRARD, FOLLOWING
INSTRUCTIONS, MOVED TO THE DESIGNATED POSITION NEAR THE MACHINE GUN. 
WHILE PERFORMING HIS DUTIES AS GUARD, HE FIRED AN EXPENDED CARTRIDGE
CASE, AS A WARNING, WHICH STRUCK AND KILLED SAKAI, NAKA, KAMI-SHINDEN,
SOMAMURA, GUMMA PREFECTURE, WHO HAD ENTERED THE RANGE AREA FOR THE
PURPOSE OF GATHERING EXPENDED CARTRIDGE CASES. 

2.  THE UNITED STATES WILL EXERCISE JURISDICTION IN THIS CASE, UNLESS
NOTIFICATION IS GIVEN IMMEDIATELY THAT PROOF TO THE CONTRARY EXISTS. 

3.  SHOULD THIS INCIDENT RESULT IN TRIAL OF THE ABOVE INDIVIDUAL BY
GENERAL COURT-MARTIAL, YOU WILL BE NOTIFIED OF THE DATE OF TRIAL IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 45 OF THE ABOVE MENTIONED
AGREED VIEWS. 

                   CARL C. ALLIGOOD 1ST LT. INFANTRY COMMANDING 

THE JAPANESE NOTICE OF "EXISTENCE OF CONTRARY PROOF". 

ON 9 FEBRUARY 1957 THE LOCAL JAPANESE AUTHORITIES NOTIFIED THE UNITED
STATES COMMANDING OFFICER WHO HAD ISSUED THE CERTIFICATE OF OFFICIAL
DUTY THAT THEY CONSIDERED THAT PROOF CONTRARY TO THE CERTIFICATE
EXISTED.  THIS NOTIFICATION STATED: 

MAEBASHI DISTRICT PUBLIC PROCURATOR'S OFFICE MAEBASHI, 9 FEBURARY
1957 

TO:  MR. CARL C. ALLIGOOD, 1ST LT INFANTRY, COMMAND, F CO., 2ND BN
8TH CAVALRY REGIMENT 

RE:  NOTIFICATION OF THE EXISTENCE OF THE CONTRARY PROOF. 

DEAR SIR: 

REFERENCE IS MADE TO THE LETTER FROM YOU DATED ON 8 FEBRUARY 1957,
REGARDING TO THE "ON DUTY" STATUS OF THE CASE INVOLVING SP3 GIRARD S.
WILLIAM, WHICH WE RECEIVED ON 8 FEBRUARY 1957. 

THIS IS TO INFORM YOU THAT THIS OFFICE CONSIDERS THE PROOF CONTRARY
THERETO EXISTS, BASING UPON OUR EXAMINATIONS. 

       /S/ NAGAMI SAKAI CHIEF PROCURATOR MAEBASHI PUBLIC
PROCURATOR'S OFFICE 

THE JAPANESE STATEMENT IN THE CRIMINAL JURISDICTION SUB-COMMITTEE OF
THE JOINT COMMITTEE 

IN ACCORDANCE WITH THE PROVISIONS OF AGREED VIEW NO. 43, ON 16
FEBRUARY 1957 THE JAPANESE BROUGHT THE MATTER UP IN THE JOINT COMMITTEE
AND REQUESTED THAT IT BE REFERRED TO THE CRIMINAL JURISDICTION
SUBCOMMITTEE.  ON 7 MARCH 1957 THE UNITED STATES REPRESENTATIVE AGREED
TO THIS PROCEDURE.  THE MATTER WAS DISCUSSED IN THE SUBCOMMITTEE ON 12
MARCH 1957 AT WHICH TIME THE JAPANESE SUBMITTED A SUMMARY WHICH
CONTAINED THE FOLLOWING: 

"HE (GIRARD) AND NICKEL WENT TO THE GUN AND, ABOUT 13.15 HRS HE
PICKED UP AND THREW EXPENDED CARTRIDGE CASES IN THE DIRECTION OF THE
SLOPE SOUTH OF THE HILL, AND, BECKONING HIDEHARA ONOZEKI (MALE) AND
NAKA SAKAI (FEMALE) WHO HAD BEEN AT A PLACE IN THE SOUTH-WEST OF HILL
655 TO GATHER EMPTY CARTRIDGE CASES, ETC., CRIED OUT TO THEM 'PAPA-SAN,
DAIJOBU', 'MAMA-SAN, DAIJOBU' ('OLD MAN, O.K., OLD LADY, O.K.'), ETC.
IN JAPANESE AND THUS LET THE 2 JAPANESE PICK UP EXPENDED CARTRIDGE
CASES HE HAD THROWN.  THEN HE, POINTING TO THE NEARBY HOLE FOR NAKA
SAKAI, CRIED OUT TO HER IN JAPANESE 'MAMA-SAN, TAKUSAN-NE' ('OLD LADY,
PLENTY MORE]'), AND HINTING THEREBY THAT THERE REMAINED SOME EXPENDED
CARTRIDGE CASES IN IT, INDUCED HER TO GO TO THE HOLE.  BUT, AT THAT
MOMENT, HIDEHARU ONOZEKI WHO WAS PICKING UP EXPENDED CARTRIDGE CASES ON
THE SAID SLOPE BECAME SUSPICIOUS OF THE SUSPECTS BEHAVIOUR AND TRIED TO
RUN AWAY.  THEN THE SUSPECT SUDDENLY SHOUTED TO ONOSEKI 'GE-ROU] 
HEY]'  AND FIRED A BLANK SHOT TOWARDS HIM, PLACING AN EXPENDED
CARTRIDGE CASE IN THE GRENADE LAUNCHER ATTACHED TO THE RIFLE WHICH HE
HAD CARRIED WITH HIM.  THEN HE CRIED OUT 'GE-ROU]  HEY]'  TO NAKA SAKAI
WHO WAS IN THE HOLE, AND, WHEN HE SAW HER RUNNING OFF TOWARDS THE NORTH
SLOPE OF THE HILL, HE, HOLDING THE STOCK OF THE RIFLE UNDER HIS ARM,
FIRED STANDING A BLANK SHOT TOWARD HER ABOUT EIGHT (8) METERS AWAY WITH
AN EXPENDED CARTRIDGE CASE PUT IN THE GRENADE LAUNCHER, JUST IN THE
SAME MANNER AS HE HAD DONE TO HIDEHARU ONOZEKI, AS THE RESULT OF WHICH
HE MADE HER SUSTAIN A PENETRATING WOUND ON THE LEFT SIDE OF HER BACK
WHICH PROVED FATAL ON THE SPOT BECAUSE OF THE LOSS OF BLOOD RESULTING
FROM A CUT IN THE MAIN ARTERY." 

THE JAPANESE CONCLUSION WAS STATED AS FOLLOWS: 

"SP-3 WILLIAM S. GIRARD, THE SUSPECT IN THIS CASE, HAD BEEN
INSTRUCTED TO GUARD A MACHINE GUN AND EQUIPMENT AT THE TIME OF
OCCURRENCE OF THE CASE.  IT IS EVIDENT, HOWEVER, AS SHOWN IN THE ABOVE
FINDING OF FACTS, THAT THE INCIDENT AROSE WHEN HE, MATERIALLY DEVIATING
FROM THE PERFORMANCE OF SUCH DUTY OF HIS, WILFULLY THREW EXPENDED
CARTRIDGE CASES AWAY TOWARDS NAKA SAKAI AND HIDEHARU ONOZEKI, AND, THUS
INVITING THEM TO COME NEAR TO HIM, HE FIRED TOWARDS THEM.  THEREFORE,
THE INCIDENT IS NOT CONSIDERED TO HAVE ARISEN OUT OF AN ACT OR OMISSION
DONE IN THE PERFORMANCE OF OFFICIAL DUTY." 

DISCUSSIONS IN THE CRIMINAL JURISDICTION SUBCOMMITTEE OF THE JOINT
COMMITTEE. 

AT THE SAME TIME THE FOLLOWING EXCHANGE OCCURRED: 

U.S.:  DO YOU AGREE THAT GIRARD WAS ON DUTY AS A GUARD, AND THAT THE
INCIDENT AROSE WHILE HE WAS ON SUCH DUTY? 

JAPAN:  WE ADMIT THAT HE WAS ON DUTY, BUT IT IS OUR POSITION THAT THE
SHOOTING HAD NO CONNECTION WITH HIS DUTY OF GUARDING THE MACHINE GUN. 
THE ACT OF GIRARD IN THROWING OUT BRASS AND ENTICING THE VICTIM TOWARD
HIM HAD NO CONNECTION WITH GUARDING THE MACHINE GUN. 

U.S.:  YOUR STATEMENT OF FACT DOES NOT TAKE INTO ACCOUNT GIRARD'S
STATEMENT OF HIS INTENT.  THAT IS, THAT HE FIRED FOR THE PURPOSE OF
SCARING THE JAPANESE AWAY AND THUS INSURE THE SAFETY OF THE MACHINE
GUN. 

JAPAN:  THE EVIDENCE SHOWS THAT THERE WAS NO DANGER TO THE MACHINE
GUN.  NICKEL MADE A STATEMENT TO THIS EFFECT.  THUS, WE DO NOT CONSIDER
THAT GIRARD ACTUALLY FIRED TO PROTECT THE MACHINE GUN.  THE JAPANESE
WERE ONLY PICKING UP BRASS IN THE VICINITY; THEY WERE NOT INTERFERING
IN ANY WAY WITH GIRARD'S MISSION TO GUARD THE MACHINE GUN.  THERE WAS
THUS NO NECESSITY OR REASON FOR GIRARD TO SHOOT AT THEM TO INSURE THE
SAFETY OF THE MACHINE GUN.  ITS SAFETY WAS NEVER IN DANGER.  FURTHER,
ACCORDING TO THE STATEMENT OF LT. MAHON, FIRING AN EMPTY CARTRIDGE FROM
A GRENADE LAUNCHER IS NOT AUTHORIZED, AND ANY SUPERIOR OF GIRARD'S
OBSERVING SUCH AN ACTION BY GIRARD WOULD HAVE BEEN OBLIGED TO INTERFERE
AND PREVENT GIRARD FROM FIRING HIS WEAPON IN THIS MANNER. 

U.S.:  HOWEVER, IF WE GIVE FULL WEIGHT TO GIRARD'S STATEMENT, WE MUST
CONCLUDE THAT HE DID, IN FACT, FIRE TO SCARE THE JAPANESE AWAY AND THUS
INSURE SAFETY OF THE MACHINE GUN.  HE MAY HAVE BEEN MISTAKEN IN
BELIEVING THAT IT WAS NECESSARY TO ACT IN THIS MANNER, BUT WE CANNOT
ESCAPE THE FACT THAT, ACCORDING TO HIS OWN STATEMENT, HE FIRED FOR THIS
PURPOSE.  IF YOU WERE TO BELIEVE GIRARD'S STATEMENT, WOULD YOU CONSIDER
THAT HE WAS ACTING IN THE PERFORMANCE OF OFFICIAL DUTY?    JAPAN:  YOUR
QUESTION IS BASED ON A SUPPOSITION THAT IS NOT SUPPORTED BY THE
EVIDENCE, AND WE ARE NOT PREPARED TO ANSWER IT. 

U.S.:  IN DETERMINING OFFICIAL DUTY IN THIS CASE, IS IT NOT IMPORTANT
TO CONSIDER GIRARD'S INTENT AS DISCLOSED BY HIS OWN STATEMENT? 

JAPAN:  IN DETERMINING THAT THE INCIDENT DID NOT ARISE IN THE
PERFORMANCE OF OFFICIAL DUTY, WE CONSIDERED ALL THE EVIDENCE.  A NUMBER
OF JAPANESE WITNESSES WERE INTERROGATED IMMEDIATELY AFTER THE
INCIDENT.  WE CONSIDERED THEIR TESTIMONY AS WELL AS THE TESTIMONY OF
GIRARD AND NICKEL.  IN DETERMINING GIRARD'S INTENT, IT IS NECESSARY TO
CONSIDER ALL THE EVIDENCE, NOT JUST HIS VERSION OF THE INCIDENT.  WHEN
ALL OF THE EVIDENCE IS CONSIDERED, IT APPEARS THAT GIRARD'S STATEMENT
THAT HE FIRED TO SCARE THE JAPANESE AWAY AND THUS PROTECT THE MACHINE
GUN IS NOT WORTHY OF BELIEF, AS THE WEIGHT OF THE EVIDENCE CONTRADICTS
GIRARD'S STATEMENT.  IT IS OUR POSITION THAT THE EVIDENCE SHOWS THAT
THE FIRING HAD NO SIGNIFICANT CONNECTION WITH THE GUARDING OF THE
MACHINE GUN. 

INVESTIGATION OF THE INCIDENT. 

INVESTIGATIONS OF THE FACTS RELATING TO THE ALLEGED OFFENSE WERE
CONDUCTED BY BOTH THE U.S. ARMY IN JAPAN, AND THE LOCAL JAPANESE
AUTHORITIES. 

INTERPRETATION OF "OFFICIAL DUTY". 

THE FOLLOWING INTERPRETATION OF THE TERM "OFFICIAL DUTY" APPEARS IN A
CIRCULAR OF THE UNITED STATES ARMY FORCES, FAR EAST WHICH WAS PUBLISHED
IN JANUARY 1956: 

"THE TERM 'OFFICIAL DUTY' AS USED IN ARTICLE XVII, OFFICIAL MINUTES,
AND THE AGREED VIEWS IS NOT MEANT TO INCLUDE ALL ACTS BY MEMBERS OF THE
ARMED FORCES AND CIVILIAN COMPONENT DURING PERIODS WHILE THEY ARE ON
DUTY, BUT IS MEANT TO APPLY ONLY TO ACTS WHICH ARE REQUIRED TO BE DONE
AS A FUNCTION OF THOSE DUTIES WHICH THE INDIVIDUALS ARE PERFORMING. 
THUS, A SUBSTANTIAL DEPARTURE FROM THE ACTS A PERSON IS REQUIRED TO
PERFORM IN A PARTICULAR DUTY USUALLY WILL INDICATE AN ACT OUTSIDE OF
HIS 'OFFICIAL DUTY.'" 

ACTION IN THE JOINT COMMITTEE. 

AS A RESULT OF LENGTHY DISCUSSIONS EXTENDING FROM EARLY MARCH TO MID
MAY 1957, IT WAS FINALLY AGREED IN THE JOINT COMMITTEE THAT THE UNITED
STATES MILITARY AUTHORITIES WOULD NOTIFY THE APPROPRIATE JAPANESE
AUTHORITIES, IN ACCORDANCE WITH PARAGRAPH 3C OF ARTICLE XVII OF THE
ADMINISTRATIVE AGREEMENT, THAT THE UNITED STATES HAD DECIDED NOT TO
EXERCISE JURISDICTION IN THE CASE.  THIS ACTION WAS THEREAFTER TAKEN. 

THE ACTION OF THE SECRETARY OF DEFENSE AND THE SECRETARY OF STATE. 

ON JUNE 4, 1957 THE SECRETARY OF STATE JOHN FOSTER DULLES AND
SECRETARY OF DEFENSE CHARLES E. WILSON ANNOUNCED THAT AFTER CAREFUL
REVIEW OF ALL AVAILABLE FACTS IN THE CASE, THEY HAD CONCLUDED THAT THE
JOINT COMMITTEE'S AGREEMENT THAT GIRARD BE TRIED IN THE COURTS OF JAPAN
WAS REACHED IN FULL ACCORD WITH PROCEDURES ESTABLISHED BY THE TREATY
AND AGREEMENT, AND THAT IN ORDER TO PRESERVE THE INTEGRITY OF THE
PLEDGES OF THE U.S., THIS DETERMINATION BY THE JOINT COMMITTEE MUST BE
CARRIED OUT. 

PRESENT STATUS OF GIRARD. 

AT THE PRESENT TIME SPECIALIST 3/C GIRARD IS ADMINISTRATIVELY
RESTRICTED TO THE LIMITS OF CAMP WHITTINGTON. 

GIRARD VOLUNTARILY ENLISTED IN THE REGULAR ARMY ON OCTOBER 28, 1954
FOR A THREE YEAR TERM WHICH WILL EXPIRE ON OCTOBER 27, 1957. 

      /S/ ROBERT DECHERT ROBERT DECHERT GENERAL COUNSEL DEPARTMENT
OF DEFENSE COUNSEL DEPARTMENT OF DEFENSE 

SUBSCRIBED AND SWORN TO BEFORE ME THIS 8TH DAY OF JUNE 1957. 

MY COMMISSION EXPIRES:  MARCH 6, 1961. 

(SEAL) /S/ LAURA E. LITCHARD, NOTARY PUBLIC. 

      APPENDIX B. 

JOINT STATEMENT OF SECRETARY OF STATE, JOHN FOSTER DULLES AND
SECRETARY OF DEFENSE, CHARLES E. WILSON. 

THE CASE OF U.S. ARMY SPECIALIST 3RD CLASS WILLIAM S. GIRARD HAS FAR
REACHING IMPLICATIONS, INVOLVING AS IT DOES THE GOOD FAITH OF THE
UNITED STATES IN CARRYING OUT A JOINT DECISION REACHED UNDER PROCEDURES
ESTABLISHED BY TREATY AND AGREEMENT WITH JAPAN. 

THE CASE INVOLVES ACTIONS BY GIRARD WHICH CAUSED THE DEATH OF NAKA
SAKAI, A JAPANESE WOMAN, ON JANUARY 30, 1957.  THE ISSUE AROSE AS TO
WHETHER OR NOT GIRARD SHOULD BE TRIED BY U.S. COURT-MARTIAL OR BY A
JAPANESE COURT.  AFTER CAREFUL DELIBERATION IN THE JOINT U.S.-JAPAN
COMMITTEE ESTABLISHED BY THE TWO GOVERNMENTS PURSUANT TO TREATY
ARRANGEMENTS, THE U.S. REPRESENTATIVE ON THIS COMMITTEE WAS AUTHORIZED
TO AGREE, AND ON MAY 16, 1957, DID AGREE, THAT THE UNITED STATES WOULD
NOT EXERCISE ITS ASSERTED RIGHT OF PRIMARY JURISDICTION IN THIS CASE. 
IN VIEW OF THIS COMPLETED ACTION, ATTEMPTING TO PROLONG THE DISPUTE
OVER THE JURISDICTIONAL ISSUE WOULD CREATE A SITUATION WHICH COULD
BASICALLY AFFECT U.S. RELATIONS NOT ONLY WITH JAPAN, BUT ALSO WITH MANY
OTHER NATIONS. 

FOR THESE REASONS, SECRETARY OF STATE JOHN FOSTER DULLES AND
SECRETARY OF DEFENSE CHARLES E. WILSON HAVE CAREFULLY REVIEWED ALL THE
AVAILABLE FACTS IN THE CASE.  THEY HAVE NOW CONCLUDED THAT THE JOINT
COMMITTEE'S AGREEMENT THAT GIRARD BE TRIED IN THE COURTS OF JAPAN WAS
REACHED IN FULL ACCORD WITH PROCEDURES ESTABLISHED BY THE TREATY AND
AGREEMENT, AND THAT IN ORDER TO PRESERVE THE INTEGRITY OF THE PLEDGES
OF THE UNITED STATES, THIS DETERMINATION BY THE JOINT COMMITTEE MUST BE
CARRIED OUT. 

THE SECRETARIES' REVIEW DISCLOSED THE FOLLOWING: 

THE INCIDENT OCCURRED IN A MANEUVER AREA PROVIDED BY THE JAPANESE
GOVERNMENT FOR PART-TIME USE OF UNITED STATES FORCES.  THE JAPANESE
DEFENSE FORCE USES THE SAME AREA ABOUT 40% OF THE TIME.  WHEN THE AREA
IS NOT IN USE BY EITHER THE UNITED STATES OR JAPANESE ARMED FORCES,
JAPANESE CIVILIANS ARE PERMITTED TO FARM OR OTHER-WISE USE THE AREA. 

EFFORTS TO KEEP CIVILIANS AWAY FROM THE AREA DURING SUCH MILITARY
EXERCISES HAVE NOT PROVED EFFECTIVE.  IN THIS PARTICULAR CASE, RED
BOUNDARY FLAGS WERE, AS CUSTOMARY, ERECTED AS A WARNING TO CIVILIANS TO
KEEP OFF, AND LOCAL AUTHORITIES WERE NOTIFIED OF THE PROPOSED
EXERCISES.  BUT, AS WAS FREQUENTLY THE CASE, A NUMBER OF JAPANESE
CIVILIANS WERE IN THE AREA GATHERING EMPTY BRASS CARTRIDGE CASES AT THE
TIME OF THE INCIDENT.  THESE CIVILIANS HAD CREATED SUCH A RISK OF
INJURY TO THEMSELVES IN THE MORNING EXERCISES WHEN LIVE AMMUNITION WAS
USED THAT THE AMERICAN OFFICER IN CHARGE WITHDREW LIVE AMMUNITION FROM
THE TROOPS PRIOR TO THE AFTERNOON EXERCISES.  IN THE INTERVAL BETWEEN
TWO SIMULATED ATTACKS DURING THE AFTERNOON, GIRARD AND ANOTHER SOLDIER,
SPECIALIST 3RD CLASS VICTOR M. NICKEL, WERE ORDERED BY THEIR PLATOON
LEADER, A LIEUTENANT, TO GUARD A MACHINE GUN AND SEVERAL FIELD JACKETS
AT THE TOP OF A HILL.  GIRARD AND NICKEL WERE NOT ISSUED LIVE
AMMUNITION FOR THIS DUTY. 

IT WAS WHILE THESE SOLDIERS WERE PERFORMING THIS DUTY THAT THE
INCIDENT OCCURRED.  MRS. NAKA SAKAI, A JAPANESE CIVILIAN, DIED A FEW
MOMENTS AFTER BEING HIT IN THE BACK BY AN EMPTY BRASS RIFLE SHELL CASE
FIRED BY GIRARD FROM HIS RIFLE GRENADE LAUNCHER.  SHE WAS NOT OVER 30
YARDS FROM GIRARD AND WAS GOING AWAY FROM HIM WHEN HE FIRED THE RIFLE. 
GIRARD HAD PREVIOUSLY FIRED SIMILARLY IN THE VICINITY OF A JAPANESE
MAN, WHO WAS NOT HIT. 

GIRARD'S ACTION IN FIRING EMPTY SHELL CASES FROM THE RIFLE GRENADE
LAUNCHER WAS NOT AUTHORIZED.  HE ASSERTED THAT HE FIRED FROM THE WAIST,
INTENDING ONLY TO FRIGHTEN THE JAPANESE CIVILIANS.  OTHERS STATED, BUT
GIRARD DENIED, THAT EMPTY SHELL CASES WERE THROWN OUT TO ENTICE THE
JAPANESE TO APPROACH. 

     *         *         *         *         * 

UNDER THE U.S.-JAPANESE SECURITY AND ARTICLE XVII OF THE
ADMINISTRATIVE AGREEMENT UNDER THAT TREATY, AS ESTABLISHED BY THE
PROTOCOL ADOPTED SEPTEMBER 23, 1953, THE AUTHORITIES OF JAPAN HAVE THE
PRIOR RIGHT TO JURISDICTION TO TRY MEMBERS OF THE UNITED STATES ARMED
FORCES FOR AN INJURY CAUSED TO A JAPANESE NATIONAL, UNLESS SUCH INJURY
IS ONE "ARISING OUT OF ANY ACT OR OMISSION DONE IN THE PERFORMANCE OF
OFFICIAL DUTY." 

THE JAPANESE AUTHORITIES HAVE TAKEN THE POSITION THAT GIRARD'S ACTION
IN FIRING THE SHELL CASES WAS OUTSIDE THE SCOPE OF HIS GUARD DUTY AND
WAS, THEREFORE, NOT "DONE IN THE PERFORMANCE OF OFFICIAL DUTY." 

THE COMMANDING GENERAL OF GIRARD'S DIVISION CERTIFIED THAT GIRARD'S
ACTION WAS DONE IN THE PERFORMANCE OF OFFICIAL DUTY. 

IN ACCORDANCE WITH THE PROCEDURE ESTABLISHED UNDER THE TREATY AND
ADMINISTRATIVE AGREEMENT, THE DISPUTED MATTER WAS, ON MARCH 7, 1957,
TAKEN BEFORE THE JOINT U.S.-JAPAN COMMITTEE ESTABLISHED UNDER THE
PROVISIONS OF THE TREATY AND ADMINISTRATIVE AGREEMENT PREVIOUSLY
REFERRED TO. 

VARIOUS MEETINGS WERE HELD BETWEEN THE UNITED STATES AND JAPANESE
REPRESENTATIVES ON THE JOINT COMMITTEE.  AS IS CUSTOMARY, A
REPRESENTATIVE OF THE AMERICAN EMBASSY IN TOKYO ALSO ATTENDED THESE
MEETINGS IN THE CAPACITY OF OBSERVER.  BOTH SIDES CONTINUED TO PRESS
THEIR RESPECTIVE CLAIMS TO PRIMARY JURISDICTION, AND THE COMMITTEE WAS
UNABLE TO REACH AGREEMENT. 

THE COMMANDING GENERAL, FAR EAST COMMAND, REPORTED THE FACTS TO THE
DEPARTMENT OF THE ARMY, THE EXECUTIVE AGENT FOR THE DEPARTMENT OF
DEFENSE.  THE DEPARTMENT OF DEFENSE CONSIDERED HAVING THE JOINT
COMMITTEE REFER THE MATTER IN DISPUTE TO THE TWO GOVERNMENTS FOR
SETTLEMENT, BUT REJECTED THIS PROCEDURE AS INADVISABLE UNDER THE
CIRCUMSTANCES.  DEPARTMENT OF DEFENSE INSTRUCTIONS WERE ACCORDINGLY
ISSUED, THROUGH THE DEPARTMENT OF THE ARMY, TO THE FAR EAST COMMAND TO
THE EFFECT THAT THE U.S. REPRESENTATIVE ON THE JOINT COMMITTEE SHOULD
CONTINUE TO PRESS THE CLAIM FOR JURISDICTION, BUT THAT, IN CASE OF
CONTINUED DEADLOCK, HE WAS AUTHORIZED TO WAIVE JURISDICTION TO JAPAN. 
AFTER THREE WEEKS OF ADDITIONAL NEGOTIATIONS, THE U.S. REPRESENTATIVE
WAIVED JURISDICTION IN THE NAME OF THE UNITED STATES. 

GIRARD WAS SUBSEQUENTLY INDICTED BY THE JAPANESE JUDICIAL AUTHORITIES
FOR CAUSING A DEATH BY WOUNDING - THE LEAST SERIOUS HOMICIDE CHARGE FOR
WHICH HE COULD HAVE BEEN INDICTED UNDER JAPANESE LAW.  IN DETERMINING
WHETHER GIRARD'S ACTIONS WERE IN VIOLATION OF LAW, ALL THE FACTS, AS
PRESENTED BY BOTH SIDES, MUST NOW BE WEIGHED BY THE JAPANESE COURT,
JUST AS THEY WOULD BY A U.S. COURT-MARTIAL, IF TRIAL WERE HELD UNDER
U.S. JURISDICTION. 

IN ACCORDANCE WITH PUBLIC LAW 777 OF THE 84TH CONGRESS, THE UNITED
STATES GOVERNMENT WILL PAY FOR COUNSEL CHOSEN BY GIRARD TO DEFEND HIM
IN THIS TRIAL.  PURSUANT TO THE ADMINISTRATIVE AGREEMENT UNDER THE
JAPANESE TREATY, GIRARD WILL BE GUARANTEED A PROMPT TRIAL, THE RIGHT TO
HAVE REPRESENTATION BY COUNSEL SATISFACTORY TO HIM, FULL INFORMATION AS
TO ALL CHARGES AGAINST HIM, THE RIGHT TO CONFRONT ALL WITNESSES, THE
RIGHT TO HAVE HIS WITNESSES COMPELLED TO ATTEND COURT, THE RIGHT TO
HAVE A COMPETENT INTERPRETER, THE RIGHT OF COMMUNICATION WITH UNITED
STATES AUTHORITIES, AND THE PRESENCE OF A UNITED STATES REPRESENTATIVE
AS AN OFFICIAL OBSERVER AT THE TRIAL.  THIS OBSERVER IS REQUIRED TO
REPORT TO UNITED STATES AUTHORITIES ON ALL ASPECTS OF THE TRIAL AND THE
FAIRNESS OF THE COURT PROCEEDINGS.  THE U.S. AUTHORITIES WILL, OF
COURSE, SEE THAT ALL EVIDENCE IS AVAILABLE TO GIRARD AND HIS COUNSEL,
AND WILL RENDER EVERY PROPER ASSISTANCE TO HIM AND HIS COUNSEL IN
PROTECTION OF HIS RIGHTS. 

 *         *         *         *         * 

UNITED STATES TROOPS ARE STATIONED IN MANY COUNTRIES AS PART OF OUR
OWN NATIONAL DEFENSE AND TO HELP STRENGTHEN THE FREE WORLD STRUGGLE
AGAINST COMMUNIST IMPERIALISM.  THE MATTER OF JURISDICTION IN CASES OF
OFFENSES AGAINST THE LAWS OF HOST COUNTRIES, WHETHER BY OUR SERVICEMEN
ABROAD OR BY SERVICEMEN OF OTHER COUNTRIES IN THE UNITED STATES, IS
DEALT WITH BY MUTUAL AGREEMENTS. 

IN THE OPERATION OF THIS SYSTEM IN JAPAN THERE HAS BEEN THE GREATEST
MEASURE OF MUTUAL TRUST AND COOPERATION.  SINCE THE PRESENT ARRANGEMENT
BECAME EFFECTIVE IN OCTOBER 1953, JAPAN, IN THE OVERWHELMING MAJORITY
OF THE CASES IN WHICH IT HAD PRIMARY RIGHT TO TRY AMERICAN PERSONNEL,
HAS WAIVED THAT RIGHT IN FAVOR OF U.S. ACTION.  THERE IS EVERY REASON
TO BELIEVE THAT TRIAL OF U.S. ARMY SPECIALIST 3RD CLASS WILLIAM S.
GIRARD IN THE JAPANESE COURTS WILL BE CONDUCTED WITH THE UTMOST
FAIRNESS. 
..END :





CARROLL V. UNITED STATES 354 U.S. 394 


NO. 571.  ARGUED APRIL 4, 1957.  - DECIDED JUNE 24, 1957.  - 98 U.S.
APP. D.C. 244, 234 F.2D 679, REVERSED AND REMANDED. 


PETITIONERS WERE ARRESTED ON WARRANTS AND SUBSEQUENTLY WERE INDICTED
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR
VIOLATIONS OF LOCAL LOTTERY LAWS AND FOR CONSPIRACY TO VIOLATE THEM. 
AFTER INDICTMENT, EACH FILED A PRE-TRIAL MOTION UNDER RULE 41(E) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE FOR SUPPRESSION OF EVIDENCE SEIZED
FROM HIS PERSON AT THE TIME OF HIS ARREST.  THE DISTRICT COURT GRANTED
THE MOTIONS, ON THE GROUND THAT PROBABLE CAUSE HAD BEEN LACKING FOR
ISSUANCE OF THE ARREST WARRANTS.  URGING THAT, WITHOUT THE EVIDENCE
THAT HAD BEEN SEIZED AND SUPPRESSED, IT WOULD HAVE TO DISMISS THE
INDICTMENT FOR WANT OF SUFFICIENT EVIDENCE TO PROCEED WITH THE
PROSECUTION, THE GOVERNMENT APPEALED TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, WHICH REVERSED THE
DISTRICT COURT.  HELD:  THE APPEAL SHOULD HAVE BEEN DISMISSED; THE
GOVERNMENT HAD NO RIGHT TO APPEAL FROM SUCH AN ORDER IN SUCH
CIRCUMSTANCES, EITHER UNDER THE GENERAL STATUTES RELATING TO THE
APPELLATE JURISDICTION OF ALL FEDERAL COURTS OF APPEALS OR UNDER THE
SPECIAL STATUTES RELATING TO THE APPELLATE JURISDICTION OF THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  PP. 396
415. 

1.  THE SUPPRESSION ORDER HERE INVOLVED IS NOT SUFFICIENTLY SEPARABLE
AND COLLATERAL TO THE CRIMINAL CASE TO BE "FINAL" AND HENCE APPEALABLE
UNDER THE GENERAL AUTHORITY OF 28 U.S.C.  SEC. 1291, GIVING THE FEDERAL
COURTS OF APPEALS JURISDICTION OF APPEALS FROM "ALL FINAL DECISIONS" OF
THE DISTRICT COURTS.  PP. 399-408. 

(A)  APPELLATE JURISDICTION IN A SPECIFIC FEDERAL COURT OVER A GIVEN
TYPE OF CASE IS DEPENDENT ON AUTHORITY EXPRESSLY CONFERRED BY STATUTE. 
PP. 399-400. 

(B)  IN FEDERAL JURISPRUDENCE, AT LEAST, APPEALS BY THE GOVERNMENT IN
CRIMINAL CASES ARE SOMETHING UNUSUAL, EXCEPTIONAL AND NOT FAVORED.  PP.
400-403. 

(C)  THE SUPPRESSION ORDER HERE INVOLVED, HAVING BEEN ENTERED AFTER
INDICTMENT AND IN THE DISTRICT OF TRAIL, HAS AN INTERLOCUTORY CHARACTER
AND, THEREFORE, CANNOT BE APPEALED BY THE GOVERNMENT AS A "FINAL
DECISION."  PP. 403-405. 

(D)  THE SUPPRESSION ORDER HERE INVOLVED DOES NOT HAVE SUFFICIENT
CHARACTERISTICS OF INDEPENDENCE AND COMPLETENESS TO MAKE IT APPEALABLE
AS AN ORDER SEPARABLE FROM, OR COLLATERAL TO, THE CRIMINAL CASE.  PP.
403-408. 

2.  THE SUPPRESSION ORDER HERE INVOLVED IS NOT A "FINAL" ORDER WITHIN
THE CRIMINAL CASE AND THUS APPEALABLE UNDER THE STATUTORY PROVISIONS
APPLICABLE IN THE DISTRICT OF COLUMBIA IN CRIMINAL CASES.  PP. 408
415. 

(A)  EVEN TODAY, CRIMINAL APPEALS BY THE GOVERNMENT IN THE DISTRICT
OF COLUMBIA ARE NOT LIMITED TO THE CATEGORIES SET FORTH IN 18 U.S.C.
SEC. 3731, ALTHOUGH AS TO CASES COVERED BY THAT NATIONWIDE
JURISDICTIONAL STATUTE, ITS EXPLICIT DIRECTIONS WILL PREVAIL OVER THE
TERMS OF SEC. 935 OF THE DISTRICT OF COLUMBIA CODE OF 1901, NOW FOUND
IN SEC. 23-105 OF THE DISTRICT OF COLUMBIA CODE (1951 ED.).  PP. 408
411. 

(B)  UNDER SEC. 226 OF THE DISTRICT OF COLUMBIA CODE OF 1901, THE
PRACTICE HAD DEVELOPED OF ALLOWING APPEALS FROM INTERLOCUTORY ORDERS IN
CRIMINAL CASES; BUT SEC. 226 WAS REPLACED IN 1949 BY THE NATIONWIDE
APPELLATE JURISDICTION PROVISIONS OF 28 U.S.C. SECS. 1291 AND 1292,
WHICH DO NOT AUTHORIZE INTERLOCUTORY APPEALS IN CRIMINAL CASES.  PP.
411-413. 

(C)  THE STANDARD OF "FINAL DECISIONS" AS PREREQUISITE TO APPEAL IS
NOT SOMETHING LESS OR DIFFERENT UNDER 18 U.S.C. SEC. 1291 AS THE
SUCCESSOR TO SEC. 226 OF THE DISTRICT OF COLUMBIA CODE OF 1901 THAN IT
IS UNDER SEC. 1291 AS THE SUCCESSOR TO THE NATIONALLY APPLICABLE APPEAL
PROVISIONS OF THE JUDICIAL CODE.  P. 413. 

(D)  THE STATUTORY PROVISIONS APPLICABLE TO THE DISTRICT OF COLUMBIA,
SUBJECT TO THE FURTHER LIMITATIONS STATED THEREIN, AFFORD THE
GOVERNMENT AN APPEAL ONLY FROM AN ORDER AGAINST IT WHICH TERMINATES A
PROSECUTION OR MAKES A DECISION WHOSE DISTINCT OR PLENARY CHARACTER
MEETS THE STANDARDS OF THE PRECEDENTS APPLICABLE TO FINALITY PROBLEMS
IN ALL FEDERAL COURTS.  PP. 413-415. 

CARROLL ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE ARRESTED IN FEBRUARY 1954 ON JOHN DOE WARRANTS AND
SUBSEQENTLY WERE INDICTED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, WITH TWO OTHERS, FOR VIOLATIONS OF THE LOCAL
LOTTERY LAWS AND FOR CONSPIRACY TO CARRY ON A LOTTERY.  (FN1)  AFTER
INDICTMENT EACH FILED A PRE-TRIAL MOTION UNDER RULE 41(E) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE, (FN2) ASKING FOR THE SUPPRESSION
OF EVIDENCE SEIZED FROM HIS PERSON AT THE TIME OF HIS ARREST.  THE
DISTRICT COURT GRANTED PETITIONERS' MOTIONS TO SUPPRESS, ON THE GROUND
THAT PROBABLE CAUSE HAD BEEN LACKING FOR THE ISSUANCE OF THE ARREST
WARRANTS DIRECTED AGAINST THEM.  (FN3)  126 F. SUPP. 620.  THE
GOVERNMENT APPEALED THE ORDER FOR SUPPRESSION TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  THE INDICTMENT
AGAINST PETITIONERS HAD NOT BEEN DISMISSED, BUT THE GOVERNMENT INFORMED
THE COURT OF APPEALS THAT, WITHOUT THE "NUMBERS" PARAPHERNALIA SEIZED
AND SUPPRESSED, IT WOULD LACK SUFFICIENT EVIDENCE TO PROCEED ON ANY OF
THE COUNTS INVOLVING PETITIONERS AND THEREFORE WOULD HAVE TO DISMISS
THE INDICTMENT.  PETITIONERS CHALLENGED THE JURISDICTION OF THE COURT
OF APPEALS TO HEAR AN APPEAL BY THE GOVERNMENT FROM AN ORDER OF THE
DISTRICT COURT GRANTING A MOTION TO SUPPRESS THAT WAS MADE WHILE AN
INDICTMENT WAS PENDING IN THE SAME DISTRICT COURT.  THE COURT OF
APPEALS SUSTAINED ITS JURISDICTION ON THE AUTHORITY OF ITS PRIOR
DECISION IN UNITED STATES V. CEFARATTI, (FN4) AND REVERSED THE DISTRICT
JUDGE ON THE MERITS, HOLDING THAT THERE HAD BEEN PROBABLE CAUSE TO
JUSTIFY THE ISSUANCE OF WARRANTS FOR THE ARREST OF PETITIONERS.  98
U.S. APP. D.C. 244, 234 F.2D 679.  WE GRANTED CERTIORARI, LIMITED TO
THE QUESTION OF APPEALABILITY OF THE SUPPRESSION ORDER, BECAUSE OF THE
IMPORTANCE OF THAT QUESTION TO THE ADMINISTRATION OF THE FEDERAL
CRIMINAL LAWS.  352 U.S. 906. 

THE GOVERNMENT CONTENDS, MOST BROADLY, THAT THE SUPPRESSION ORDER OF
ANY DISTRICT COURT IS "FINAL" AND SUFFICIENTLY SEPARABLE AND COLLATERAL
TO THE CRIMINAL CASE TO BE APPEALABLE UNDER THE GENERAL AUTHORITY OF 28
U.S.C. SEC. 1291, NOTHWITHSTANDING THAT SUCH AN ORDER IS NOT LISTED
AMONG THE FEW TYPES OF ORDERS IN CRIMINAL CASES FROM WHICH THE
GOVERNMENT MAY APPEAL PURSUANT TO 18 U.S.C. SEC. 3731.  (FN5)  MORE
NARROWLY, FAILING ACCEPTANCE OF THE POSITION JUST STATED, THE
GOVERNMENT MAINTAINS THAT AN ORDER OF SUPPRESSION IS, WITHIN THE
CRIMINAL CASE, A "FINAL" ORDER AND THUS APPEALABLE UNDER THE STATUTORY
PROVISIONS FOR APPEALS BY THE GOVERNMENT IN CRIMINAL CASES THAT ARE
APPLICABLE EXCLUSIVELY IN THE DISTRICT OF COLUMBIA.  (FN6)  IT WILL BE
CONVENIENT TO DISCUSS THE ISSUES IN THE SAME ORDER. 

                         I. 

IT IS AXIOMATIC, AS A MATTER OF HISTORY AS WELL AS DOCTRINE, THAT THE
EXISTENCE OF APPELLATE JURISDICTION IN A SPECIFIC FEDERAL COURT OVER A
GIVEN TYPE OF CASE IS DEPENDENT UPON AUTHORITY EXPRESSLY CONFERRED BY
STATUTE.  AND SINCE THE JURISDICTIONAL STATUTES PREVAILING AT ANY GIVEN
TIME ARE SO MUCH A PRODUCT OF THE WHOLE HISTORY OF BOTH GROWTH AND
LIMITATION OF FEDERAL-COURT JURISDICTION SINCE THE FIRST JUDICIARY ACT,
1 STAT. 73, THEY HAVE ALWAYS BEEN INTERPRETED IN THE LIGHT OF THAT
HISTORY AND OF THE AXIOM THAT CLEAR STATUTORY MANDATE MUST EXIST TO
FOUND JURISDICTION.  IT SUFFICES TO CITE AS AUTHORITY FOR THESE
PRINCIPLES SOME OF THE CASES IN WHICH THEY HAVE BEEN APPLIED TO THE
GENERAL PROBLEM NOW BEFORE US, THE AVAILABILITY OF APPELLATE REVIEW
SOUGHT BY THE GOVERNMENT IN CRIMINAL CASES.  E.G., UNITED STATES V.
MORE, 3 CRANCH 159; UNITED STATES V. SANGES, 144 U.S. 310; IN RE HEATH,
144 U.S. 92; CROSS V. UNITED STATES, 145 U.S. 571; UNITED STATES V.
BURROUGHS, 289 U.S. 159.  (FN7) 

THERE IS A FURTHER PRINCIPLE, ALSO SUPPORTED BY THE HISTORY OF
FEDERAL APPELLATE JURISDICTION, THAT IMPORTANTLY PERTAINS TO THE
PRESENT PROBLEM.  THAT IS THE CONCEPT THAT IN THE FEDERAL
JURISPRUDENCE, AT LEAST, (FN8) APPEALS BY THE GOVERNMENT IN CRIMINAL
CASES ARE SOMETHING UNUSUAL, EXCEPTIONAL, NOT FAVORED.  THE HISTORY
SHOWS RESISTANCE OF THE COURT TO THE OPENING OF AN APPELLATE ROUTE FOR
THE GOVERNMENT UNTIL IT WAS PLAINLY PROVIDED BY THE CONGRESS, AND AFTER
THAT A CLOSE RESTRICTION OF ITS USES TO THOSE AUTHORIZED BY THE
STATUTE.  INDEED, IT WAS 100 YEARS BEFORE THE DEFENDANT IN A CRIMINAL
CASE, EVEN A CAPITAL CASE, WAS AFFORDED APPELLATE REVIEW AS OF RIGHT. 
(FN9)  AND AFTER REVIEW ON BEHALF OF CONVICTED DEFENDANTS WAS MADE
CERTAIN BY THE ACTS OF 1889 AND 1891, THE COURT CONTINUED TO WITHHOLD
AN EQUIVALENT REMEDY FROM THE GOVERNMENT, DESPITE THE EXISTENCE OF
COLORABLE STATUTORY AUTHORITY FOR PERMITTING THE GOVERNMENT TO APPEAL
IN THOSE IMPORTANT CASES WHERE A PROSECUTION WAS DISMISSED UPON THE
TRIAL COURT'S OPINION OF THE PROPER CONSTRUCTION OR THE CONSTITUTIONAL
VALIDITY OF A FEDERAL STATUTE.  (FN10)  WHEN THE CONGRESS RESPONDED TO
THE PROBLEM OF SUCH CASES, IN THE CRIMINAL APPEALS ACT OF 1907, NOW 18
U.S.C. SEC. 3731, IT DID SO WITH CAREFUL EXPRESSION OF THE LIMITED
TYPES OF ORDERS IN CRIMINAL CASES AS TO WHICH THE GOVERNMENT MIGHT
THENCEFORTH HAVE REVIEW.  (FN11)  IT WAS AS LATE AS 1942 BEFORE THE
CRIMINAL APPEALS ACT WAS AMENDED TO PERMIT APPEALS BY THE GOVERNMENT
FROM DECISIONS, GRANTING DISMISSAL OR ARREST OF JUDGMENT, OTHER THAN
THOSE GROUNDED BY THE TRIAL COURT UPON THE CONSTRUCTION OR INVALIDITY
OF A STATUTE.  (FN12) 

IT IS TRUE THAT CERTAIN ORDERS RELATING TO A CRIMINAL CASE MAY BE
FOUND TO POSSESS SUFFICIENT INDEPENDENCE FROM THE MAIN COURSE OF THE
PROSECUTION TO WARRANT TREATMENT AS PLENARY ORDERS, AND THUS BE
APPEALABLE ON THE AUTHORITY OF 28 U.S.C. SEC. 1291 WITHOUT REGARD TO
THE LIMITATIONS OF 18 U.S.C. SEC. 3731, JUST AS IN CIVIL LITIGATION
ORDERS OF EQUIVALENT DISTINCTNESS ARE APPEALABLE ON THE SAME AUTHORITY
WITHOUT REGARD TO THE LIMITATIONS OF 28 U.S.C. SEC.  1292.  (FN13)  THE
INSTANCES IN CRIMINAL CASES ARE VERY FEW.  THE ONLY DECISION OF THIS
COURT APPLYING TO A CRIMINAL CASE THE REASONING OF COHEN V. BENEFICIAL
LOAN CORP., 337 U.S. 541, HELD THAT AN ORDER RELATING TO THE AMOUNT OF
BAIL TO BE EXACTED FALLS INTO THIS CATEGORY.  STACK V. BOYLE, 342 U.S.
1.  EARLIER CASES ILLUSTRATED, SOMETIMES WITHOUT DISCUSSION, THAT UNDER
CERTAIN CONDITIONS ORDERS FOR THE SUPPRESSION OR RETURN OF ILLEGALLY
SEIZED PROPERTY ARE APPEALABLE AT ONCE, AS WHERE THE MOTION IS MADE
PRIOR TO INDICTMENT, (FN14) OR IN A DIFFERENT DISTRICT FROM THAT IN
WHICH THE TRIAL WILL OCCUR, (FN15) OR AFTER DISMISSAL OF THE CASE,
(FN16) OR PERHAPS WHERE THE EMPHASIS IS ON THE RETURN OF PROPERTY
RATHER THAN ITS SUPPRESSION AS EVIDENCE.  (FN17)  IN SUCH CASES, AS
APPROPRIATE, THE GOVERNMENT AS WELL AS THE MOVING PERSON HAS BEEN
PERMITTED TO APPEAL FROM AN ADVERSE DECISION.  BURDEAU V. MCDOWELL, 256
U.S. 465. 

BUT A MOTION MADE BY A DEFENDANT AFTER INDICTMENT AND IN THE DISTRICT
OF TRIAL HAS NONE OF THE ASPECTS OF INDEPENDENCE JUST NOTED, AS THE
COURT HELD IN COGEN V. UNITED STATES, 278 U.S. 221.  AS THE OPINION BY
MR. JUSTICE BRANDEIS EXPLAINS, THE DENIAL OF A PRE-TRIAL MOTION IN THIS
POSTURE IS INTERLOCUTORY IN FORM AND REAL EFFECT, AND THUS NOT
APPEALABLE AT THE INSTANCE OF THE DEFENDANT.  WE THINK THE GRANTING OF
SUCH A MOTION ALSO HAS AN INTERLOCUTORY CHARACTER, AND THEREFORE CANNOT
BE THE SUBJECT OF AN APPEAL BY THE GOVERNMENT.  IN THE PRESENT CASE THE
GOVERNMENT ARGUES, AS IT OFFERED TO STIPULATE BELOW, THAT THE EFFECT OF
SUPPRESSING THE EVIDENCE SEIZED FROM PETITIONERS AT THEIR ARRESTS WILL
BE TO FORCE DISMISSAL OF THE INDICTMENT FOR LACK OF EVIDENCE ON WHICH
TO GO FORWARD.  BUT THAT IS NOT A NECESSARY RESULT OF A SUPPRESSION
ORDER RELATING TO PARTICULAR ITEMS OF EVIDENCE, NOR HAVE WE BEEN SHOWN
WHETHER IT WILL BE THE RESULT IN PRACTICE IN THE GENERALITY OF CASES. 
APPEAL RIGHTS CANNOT DEPEND ON THE FACTS OF A PARTICULAR CASE.  THE
CONGRESS NECESSARILY HAS HAD TO DRAW THE JURISDICTIONAL STATUTES IN
TERMS OF CATEGORIES.  TO FIT AN ORDER GRANTING SUPPRESSION BEFORE TRIAL
IN A CRIMINAL CASE INTO THE CATEGORY OF "FINAL DECISIONS" REQUIRES A
STRAINING THAT IS NOT PERMISSIBLE IN THE LIGHT OF THE PRINCIPLES AND
THE HISTORY CONCERNING CRIMINAL APPEALS, ESPECIALLY GOVERNMENT APPEALS,
THAT ARE OUTLINED ABOVE AND MORE FULLY SET FORTH IN THE CASES CITED. 
(FN18) OTHER COURTS OF APPEALS THAT HAVE CONSIDERED THE PROBLEM HAVE
CONCLUDED THAT THIS ORDER IS NOT "FINAL" OR APPEALABLE AT THE BEHEST OF
THE GOVERNMENT.  (FN19) 

THE GOVERNMENT EXHORTS US NOT TO EXALT FORM OVER SUBSTANCE, IN
CONTENDING THAT THE PRESENT ORDER HAS VIRTUALLY THE SAME ATTRIBUTES AS
THE SUPPRESSION ORDERS FOUND REVIEWABLE IN EARLIER CASES.  WE DO NOT
AGREE THAT THE ORDER ENTERED IN A PENDING CRIMINAL CASE HAS THE SAME
CHARACTERISTICS OF INDEPENDENCE AND COMPLETENESS AS A SUPPRESSION ORDER
ENTERED UNDER OTHER CIRCUMSTANCES.  MOREOVER, IN A LIMITED SENSE, FORM
IS SUBSTANCE WITH RESPECT TO ASCERTAINING THE EXISTENCE OF APPELLATE
JURISDICTION.  WHILE IT IS ALWAYS NECESSARY TO CATEGORIZE A SITUATION
REALISTICALLY, TO PLACE A GIVEN ORDER ACCORDING TO ITS REAL EFFECT, IT
REMAINS TRUE THAT THE CATEGORIES THEMSELVES WERE DEFINED BY THE
CONGRESS IN TERMS OF FORM.  MANY INTERLOCUTORY DECISIONS OF A TRIAL
COURT MAY BE OF GRAVE IMPORTANCE TO A LITIGANT, YET ARE NOT AMENABLE TO
APPEAL AT THE TIME ENTERED, AND SOME ARE NEVER SATISFACTORILY
REVIEWABLE.  IN PARTICULAR IS THIS TRUE OF THE GOVERNMENT IN A CRIMINAL
CASE, FOR THERE IS NO AUTHORITY TODAY FOR INTERLOCUTORY APPEALS, (FN20)
AND EVEN IF THE GOVERNMENT HAD A GENERAL RIGHT TO REVIEW UPON AN
ADVERSE CONCLUSION OF A CASE AFTER TRIAL, MUCH OF WHAT IT MIGHT
COMPLAIN OF WOULD HAVE BEEN SWALLOWED UP IN THE SANCTITY OF THE JURY'S
VERDICT.  (FN21) 

IF THERE IS SERIOUS NEED FOR APPEALS BY THE GOVERNMENT FROM
SUPPRESSION ORDERS, OR UNFAIRNESS TO THE INTERESTS OF EFFECTIVE
CRIMINAL LAW ENFORCEMENT IN THE DISTINCTIONS WE HAVE REFERRED TO, IT IS
THE FUNCTION OF THE CONGRESS TO DECIDE WHETHER TO INITIATE A DEPARTURE
FROM THE HISTORICAL PATTERN OF RESTRICTED APPELLATE JURISDICTION IN
CRIMINAL CASES.  (FN22)  WE MUST DECIDE THE CASE ON THE STATUTES THAT
EXIST TODAY, IN THE LIGHT OF WHAT HAS BEEN THE DEVELOPMENT OF THE
JURISDICTION.  IT IS ONLY THROUGH LEGISLATIVE RESOLUTION, FURTHERMORE,
THAT PERIPHERAL QUESTIONS REGARDING THE CONDUCT OF GOVERNMENT APPEALS
IN THIS SITUATION CAN BE REGULATED.  SOME OF THE PROBLEMS DIRECTED AT
LEGISLATIVE JUDGMENT INVOLVE SUCH PARTICULARS AS CONFINEMENT OR BAIL OF
THE DEFENDANT, ACCELERATION OF THE GOVERNMENT'S APPEAL, AND
DISCRETIONARY LIMITATION OF THE RIGHT TO TAKE THE APPEAL.  (FN23)

                                    II. 

THE COURT OF APPEALS SUSTAINED ITS JURISDICTION ON THE BASIS OF
STATUTORY PROVISIONS PECULIAR TO THE DISTRICT OF COLUMBIA.  HERE AGAIN,
THE JURISDICTIONAL STATUTES ARE A PRODUCT OF HISTORICAL DEVELOPMENT,
AND MUST BE INTERPRETED IN THAT LIGHT.  DURING THE CENTURY FROM 1801 TO
1901 THE CONGRESS SEVERAL TIMES ORGANIZED AND REORGANIZED THE COURTS OF
THE DISTRICT OF COLUMBIA, INDEPENDENTLY OF THE FEDERAL COURTS IN THE
STATES.  IT IS NOT NECESSARY HERE TO RELATE THE CHRONOLOGY OF SHUFFLED
JURISDICTIONS AND NOMENCLATURE.  (FN24)  IT IS SUFFICIENT TO NOTE THAT
FROM 1838 ON, REVIEW OF A FINAL JUDGMENT OF CONVICTION IN THE CRIMINAL
TRIAL COURT WAS AVAILABLE IN THE APPELLATE TRIBUNAL OF THE DISTRICT. 
(FN25) HOWEVER, THE APPELLATE JUDGMENT WAS NOT FURTHER REVIEWABLE IN
THIS COURT IN ANY MANNER DURING THIS PERIOD.  IN RE HEATH, 144 U.S. 92;
CROSS V. UNITED STATES, 145 U.S. 571.  WHEN THE ACTS OF 1889 AND 1891
OPENED UP APPELLATE REVIEW OF CRIMINAL CONVICTIONS IN THE FEDERAL
COURTS THROUGHOUT THE COUNTRY, AT FIRST DIRECTLY TO THIS COURT, IT WAS
HELD THAT THOSE STATUTES DID NOT APPLY TO CASES ORIGINATING IN THE
DISTRICT OF COLUMBIA.  IBID. 

IN 1901 THE CONGRESS CODIFIED THE LAWS OF THE DISTRICT OF COLUMBIA,
INCLUDING THOSE RELATING TO THE JUDICIAL SYSTEM.  DISTRICT OF COLUMBIA
CODE, 31 STAT. 1189.  CRIMINAL JURISDICTION WAS VESTED IN THE TRIAL
COURT OF GENERAL JURISDICTION, THEN KNOWN AS THE SUPREME COURT OF THE
DISTRICT OF COLUMBIA.  (FN26)  A SINGLE SECTION OF THE STATUTE, SEC.
226, CONFERRED APPELLATE JURISDICTION ON THE COURT OF APPEALS OVER
DECISIONS OF THE SUPREME COURT IN GENERAL TERMS, APPARENTLY INCLUDING
CRIMINAL DECISIONS.  A PARTY AGGRIEVED COULD TAKE AN APPEAL FROM A
FINAL ORDER OR JUDGMENT, AND WAS ENTITLED TO ALLOWANCE OF AN APPEAL
FROM AN INTERLOCUTORY ORDER AFFECTING POSSESSION OF PROPERTY.  IN
ADDITION, THE COURT OF APPEALS COULD ALLOW AN APPEAL, IN ITS
DISCRETION, FROM ANY OTHER INTERLOCUTORY ORDER WHEN IT WAS SHOWN "THAT
IT WILL BE IN THE INTEREST OF JUSTICE TO ALLOW SUCH APPEAL."  (FN27) 


"IN ALL CRIMINAL PROSECUTIONS THE UNITED STATES OR THE DISTRICT OF
COLUMBIA, AS THE CASE MAY BE, SHALL HAVE THE SAME RIGHT OF APPEAL THAT
IS GIVEN TO THE DEFENDANT, INCLUDING THE RIGHT TO A BILL OF EXCEPTIONS:
PROVIDED, THAT IF ON SUCH APPEAL IT SHALL BE FOUND THAT THERE WAS
ERROR IN THE RULINGS OF THE COURT DURING THE TRIAL, A VERDICT IN FAVOR
OF THE DEFENDANT SHALL NOT BE SET ASIDE."  31 STAT. 1341.    THE
LEGISLATIVE HISTORY OF THE CODE DOES NOT INDICATE WHY THE GOVERNMENT
WAS NOW GIVEN A RIGHT OF APPEAL, BUT WE MAY SURMISE THAT THE DRAFTSMEN
OF THE CODE DESIRED TO ADOPT A PROCEDURAL TECHNIQUE THAT WAS THEN IN
FORCE IN A LARGE NUMBER OF STATES.  (FN28)  THE "SAME RIGHT OF APPEAL
THAT IS GIVEN TO THE DEFENDANT" WOULD BE DEFINED BY REFERENCE TO SEC.
226, OF COURSE, IN CASES COMING UP FROM THE SUPREME COURT.  AFTER THE
CONGRESS CONFERRED ON THE UNITED STATES A MORE LIMITED RIGHT OF APPEAL
FROM THE DISTRICT COURTS IN THE CRIMINAL APPEALS ACT OF 1907, RUNNING
DIRECTLY TO THIS COURT, IT WAS HELD THAT THE 1907 ACT WAS NOT
APPLICABLE TO CASES DECIDED IN THE SUPREME COURT OF THE DISTRICT OF
COLUMBIA.  THERE SEC. 935 PROVIDED "THE COMPLETE APPELLATE SYSTEM." 
UNITED STATES V. BURROUGHS, 289 U.S. 159, 164.  WHEN THE CRIMINAL
APPEALS ACT WAS BROADENED IN 1942, IT WAS THEN FIRST MADE APPLICABLE TO
THE DISTRICT OF COLUMBIA.  (FN29)  BUT THE TEXT OF SEC. 935 WAS NOT
REPEALED AT THAT TIME, NOR WAS IT REPEALED IN CONNECTION WITH THE 1948
REVISIONS OF THE JUDICIAL CODE AND THE CRIMINAL CODE.  (FN30)  IT MAY
BE CONCLUDED, THEN, THAT EVEN TODAY CRIMINAL APPEALS BY THE GOVERNMENT
IN THE DISTRICT OF COLUMBIA ARE NOT LIMITED TO THE CATEGORIES SET FORTH
IN 18 U.S.C. SEC. 3731, ALTHOUGH AS TO CASES OF THE TYPE COVERED BY
THAT SPECIAL JURISDICTIONAL STATUTE, ITS EXPLICIT DIRECTIONS WILL
PREVAIL OVER THE GENERAL TERMS OF SEC. 935, NOW FOUND IN THE DISTRICT
OF COLUMBIA CODE, 1951 EDITION, AS SEC. 23-105.  UNITED STATES V.
HOFFMAN, 82 U.S. APP. D.C.  153, 161 F.2D 881, DECIDED ON MERITS, 335
U.S. 77. 

MEANWHILE, UNDER THE GENERAL PROVISIONS OF SEC. 226 OF THE 1901 CODE,
THE PRACTICE HAD DEVELOPED OF ALLOWING APPEALS FROM INTERLOCUTORY
ORDERS IN CRIMINAL CASES.  A PARTICULAR INSTANCE DISTURBED THE CONGRESS
IN 1926, AND IT IMMEDIATELY PASSED A STATUTE TO ELIMINATE THE
PRACTICE.  IT IS APPARENT FROM THE LEGISLATIVE HISTORY THAT IT WAS
INTERLOCUTORY APPEALS FOR THE DEFENDANT THAT WERE CONSIDERED ANOMALOUS
IN A FEDERAL COURT AND UNDESIRABLE FROM THE VIEWPOINT OF PROMPT
DISPATCH OF CRIMINAL PROSECUTIONS, (FN31) BUT THE NEW PROVISION IN
TERMS APPLIED EQUALLY TO THE POSSIBILITY OF AN INTERLOCUTORY APPEAL
BEING ALLOWED TO THE GOVERNMENT THROUGH THE COMBINED PROVISIONS OF SEC.
226 AND SEC. 935.  THE 1926 ENACTMENT, AS IT NOW READS, IN THE DISTRICT
OF COLUMBIA CODE, 1951 EDITION, SEC. 17-102, STATES: 

"NOTHING CONTAINED IN ANY ACT OF CONGRESS SHALL BE CONSTRUED TO
EMPOWER THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
TO ALLOW AN APPEAL FROM ANY INTERLOCUTORY ORDER ENTERED IN ANY CRIMINAL
ACTION OR PROCEEDING OR TO ENTERTAIN ANY SUCH APPEAL HERETOFORE, OR
HEREAFTER ALLOWED OR TAKEN."  44 STAT. 831, AS AMENDED, 48 STAT. 926. 

THE ALLOWANCE OF APPEAL TECHNIQUE NO LONGER EXISTS AS TO CASES COMING
FROM THE DISTRICT COURT (THE FORMER SUPREME COURT), BUT IF THIS SECTION
DOES NOT CONTINUE TO HAVE LIFE BY FORCE OF THE WORDS "OR HEREAFTER  ...
TAKEN," IT DOES NOT MATTER, FOR SEC. 226 ITSELF WAS REPLACED IN 1949
(FN32) BY THE NATIONWIDE APPELLATE JURISDICTION PROVISIONS OF TITLE 28
OF THE U.S. CODE, SEC. 1291 AND SEC. 1292, WHICH DO NOT AUTHORIZE
INTERLOCUTORY APPEALS IN CRIMINAL CASES. 

THUS THE STATUTORY CONTEXT IN WHICH THE COURT BELOW MADE ITS RULING
IS SEEN TO BE THIS:  SUBJECT TO STATED LIMITATIONS, THE GOVERNMENT HAS
THE "SAME RIGHT OF APPEAL" AS THE DEFENDANT IN CRIMINAL CASES IN THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, BUT NO PARTY CAN APPEAL AN
INTERLOCUTORY ORDER IN SUCH CASES.  IN UNITED STATES V. CEFARATTI, 91
U.S. APP. D.C. 297, 202 F.2D 13, THE COURT OF APPEALS RECONCILED THESE
RULES BY HOLDING: 

"SINCE DEFENDANTS MAY APPEAL FROM 'FINAL DECISIONS,' TO SAY THAT 'THE
UNITED STATES  ...  SHALL HAVE THE SAME RIGHT OF APPEAL THAT IS GIVEN
TO THE DEFENDANT  ...  ' MEANS THAT  ...  THE UNITED STATES MAY APPEAL
FROM FINAL DECISIONS.  IT DOES NOT MEAN THAT THE UNITED STATES CANNOT
APPEAL FROM A FINAL DECISION UNLESS IT SO HAPPENS THAT AN OPPOSITE
DECISION WOULD ALSO HAVE BEEN FINAL."  91 U.S. APP. D.C., AT 302, 202
F.2D, AT 17. 

APPLYING THIS REASONING TO ORDERS FOR THE SUPPRESSION OF EVIDENCE,
THE COURT OF APPEALS CONCLUDED THAT SUCH AN ORDER HAD THE REQUISITE
FINALITY AND INDEPENDENCE OF THE CRIMINAL CASE TO BE APPEALABLE UNDER
28 U.S.C. SEC. 1291.  IN THE PRESENT CASE, THE COURT BELOW REAFFIRMED
ITS CEFARATTI ANALYSIS.  INSOFAR AS THESE DECISIONS, RESTING ON
OPINIONS OF THIS COURT, (FN33) IMPLY A REVIEWABILITY FOR SUPPRESSION
ORDERS THAT WOULD BE GENERAL TO CASES FROM ALL FEDERAL DISTRICT COURTS,
WE HAVE ALREADY INDICATED OUR DISAGREEMENT EARLIER IN THIS OPINION. 

BUT THE GOVERNMENT CONTENDS THAT APPEALABILITY UNDER THE DISTRICT OF
COLUMBIA STATUTES, THOUGH IT REQUIRES A "FINAL DECISION," DOES NOT CALL
FOR THE INDEPENDENT OR SEPARABLE CHARACTER OF THE ORDERS IN THE CASES
RELIED ON BY THE COURT OF APPEALS, BECAUSE HERE IT IS NOT ESSENTIAL TO
CHARACTERIZE AN ORDER AS PLENARY OR DISASSOCIATED FROM THE CRIMINAL
CASE, INASMUCH AS THE GOVERNMENT HAS A COMPREHENSIVE RIGHT OF APPEAL
WITHIN A CRIMINAL CASE IN THE DISTRICT OF COLUMBIA.  WE DO NOT AGREE
THAT THE STANDARD OF "FINAL DECISIONS" AS PREREQUISITE TO APPEAL IS
SOMETHING LESS OR DIFFERENT UNDER 28 U.S.C. SEC. 1291 AS THE SUCCESSOR
TO SEC. 226 OF THE DISTRICT OF COLUMBIA CODE OF 1901 THAN IT IS UNDER
SEC. 1291 AS THE SUCCESSOR TO THE NATIONALLY APPLICABLE APPEAL
PROVISIONS OF THE JUDICIAL CODE.  CF. STACK V. BOYLE, 342 U.S. 1, 6,
12.  BY THIS WE DO NOT MEAN TO SAY THAT SEC. 935 OF THE 1901 CODE IS NO
BROADER THAN 18 U.S.C. SEC. 3731, BUT MERELY THAT THE UNDERLYING
CONCEPTS OF FINALITY ARE THE SAME IN EACH CASE. 

AS THE OUTLINE OF THE STATUTORY DEVELOPMENT DEMONSTRATES, BOTH THIS
COURT AND THE CONGRESS HAVE BEEN STRICT IN CONFINING RIGHTS OF APPEAL
IN CRIMINAL CASES IN THE DISTRICT OF COLUMBIA TO THOSE PLAINLY
AUTHORIZED BY STATUTE.  WE DO NOT BELIEVE THAT THE COMBINED PROVISIONS
OF THE 1901 AND 1926 ENACTMENTS PERMIT THE GOVERNMENT TO APPEAL IN ANY
SITUATION WHERE THE DECISION AGAINST IT MAY HAVE SOME CHARACTERISTICS
OF FINALITY, YET DOES NOT EITHER TERMINATE THE PROSECUTION OR PERTAIN
TO AN INDEPENDENT PERIPHERAL MATTER SUCH AS WOULD BE APPEALABLE IN
OTHER FEDERAL COURTS ON THE AUTHORITY OF STACK V. BOYLE, SUPRA.  THE
1901 CODE GAVE THE GOVERNMENT "THE SAME RIGHT OF APPEAL THAT IS GIVEN
TO THE DEFENDANT," WHILE THE 1926 AMENDMENT TO THE CODE RESTRICTED THE
DEFENDANT'S RIGHT OF APPEAL TO THOSE DECISIONS OF THE SUPREME COURT
(NOW DISTRICT COURT) THAT HAVE A "FINAL" EFFECT, AS THAT TERM IS
UNDERSTOOD IN DEFINING APPELLATE JURISDICTION.  WE CONCLUDE THAT FULL
FORCE CANNOT BE GIVEN TO THE LIMITATIONS IMPOSED ON CRIMINAL APPEALS IN
THE DISTRICT OF COLUMBIA UNLESS THE GOVERNMENT IS RESTRICTED AS IS THE
DEFENDANT.  THIS IS NOT TO SAY "THAT THE UNITED STATES CANNOT APPEAL
FROM A FINAL DECISION UNLESS IT SO HAPPENS THAT AN OPPOSITE DECISION
WOULD ALSO HAVE BEEN FINAL," AS THE COURT OF APPEALS SUGGESTED IN
CEFARATTI.  QUITE TO THE CONTRARY, OUR HOLDING IS THAT THE STATUTORY
PROVISIONS APPLICABLE TO THE DISTRICT OF COLUMBIA, SUBJECT TO THE
FUTHER LIMITATIONS STATED THEREIN, AFFORD THE GOVERNMENT AN APPEAL ONLY
FROM AN ORDER AGAINST IT WHICH TERMINATES A PROSECUTION OR MAKES A
DECISION WHOSE DISTINCT OR PLENARY CHARACTER MEETS THE STANDARDS OF THE
PRECEDENTS APPLICABLE TO FINALITY PROBLEMS IN ALL FEDERAL COURTS. 
(FN34) 

IN THUS DEFINING THE GOVERNMENT'S APPEAL RIGHTS UNDER SEC. 935 OF THE
1901 CODE, WE ARE MINDFUL OF THE CONSIDERATIONS THAT MOTIVATED THE
CONGRESS TO SPECIFY IN 1926 THAT INTERLOCUTORY APPEALS IN CRIMINAL
CASES WERE NOT POSSIBLE: 

"PROMPTNESS IN THE DISPATCH OF THE CRIMINAL BUSINESS OF THE COURTS IS
BY ALL RECOGNIZED AS IN THE HIGHEST DEGREE DESIRABLE.  GREATER
EXPEDITION IS DEMANDED BY A WHOLESOME PUBLIC OPINION."  S. REP. NO.
926, 69TH CONG., 1ST SESS. 

AND CF. H.R. REP. NO. 1363, 69TH CONG., 1ST SESS.  DELAYS IN THE
PROSECUTION OF CRIMINAL CASES ARE NUMEROUS AND LENGTHY ENOUGH WITHOUT
SANCTIONING APPEALS THAT ARE NOT PLAINLY AUTHORIZED BY STATUTE.  WE
CANNOT DO SO HERE WITHOUT A MUCH CLEARER MANDATE THAN EXISTS IN THE
PRESENT TERMS AND THE HISTORICAL DEVELOPMENT OF THE RELEVANT
PROVISIONS.  CF. UNITED STATES V. BURROUGHS, 289 U.S. 159; UNITED
STATES V. SANGES, 144 U.S. 310. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION.  REVERSED. 

FN1  PETITIONERS WERE CHARGED WITH CARRYING ON A LOTTERY KNOWN AS THE
"NUMBERS GAME," A VIOLATION OF D.C. CODE, 1951, SEC. 22-1501; WITH
KNOWING POSSESSION OF LOTTERY SLIPS, A VIOLATION OF SEC. 22-1502; AND
WITH CONSPIRACY TO CARRY ON A LOTTERY, A VIOLATION OF 18 U.S.C. SEC.
371.  SINCE THE SUBSTANTIVE OFFENSE OF CARRYING ON A LOTTERY WAS A
FELONY UNDER SEC. 22-1501, THE CONSPIRACY CHARGE WAS ALSO A FELONY, BY
THE TERMS OF 18 U.S.C. SEC. 371. 

FN2  FED. RULES CRIM. PROC., 41: 

"(E)  MOTION FOR RETURN OF PROPERTY AND TO SUPPRESS EVIDENCE.  A
PERSON AGGRIEVED BY AN UNLAWFUL SEARCH AND SEIZURE MAY MOVE THE
DISTRICT COURT FOR THE DISTRICT IN WHICH THE PROPERTY WAS SEIZED FOR
THE RETURN OF THE PROPERTY AND TO SUPPRESS FOR USE AS EVIDENCE ANYTHING
SO OBTAINED ON THE GROUND THAT ...  (4) THERE WAS NOT PROBABLE CAUSE
FOR BELIEVING THE EXISTENCE OF THE GROUNDS ON WHICH THE WARRANT WAS
ISSUED,  ...  .  IF THE MOTION IS GRANTED THE PROPERTY SHALL BE
RESTORED UNLESS OTHERWISE SUBJECT TO LAWFUL DETENTION AND IT SHALL NOT
BE ADMISSIBLE IN EVIDENCE AT ANY HEARING OR TRIAL  ...  ." 

FN3  PETITIONERS' INDIVIDUAL MOTIONS WERE EACH CAPTIONED "MOTION TO
SUPPRESS 'ARREST WARRANT'" AND ASKED ONLY FOR SUPPRESSION OF THE
EVIDENCE TAKEN FROM THE PERSON AT THE ARREST.  THE DISTRICT COURT ALSO
GRANTED IN PART A MOTION, MADE ON BEHALF OF ALL THE DEFENDANTS,
RELATING TO THE SEIZURE OF EVIDENCE UNDER SEARCH WARRANTS AT TWO
HOMES.  THE GOVERNMENT MAKES SOME POINT OF CHARACTERIZING THIS AS A
MOTION FOR THE RETURN OF PROPERTY.  IT WAS CAPTIONED "MOTION TO
SUPPRESS EVIDENCE AND RETURN PROPERTY," BUT THE BODY OF THE MOTION
ASKED ONLY THAT THE EVIDENCE SEIZED AT THOSE PLACES BE SUPPRESSED.  WE
FIND IT UNNECESSARY TO DECIDE WHETHER THIS WAS A MOTION "FOR RETURN OF
PROPERTY," OR WHETHER THAT WOULD MAKE A DIFFERENCE IN THE QUESTION OF
APPEALABILITY ON THESE FACTS, FOR THE COURT OF APPEALS, WHEN IT REACHED
THE MERITS OF THE ISSUE OF PROBABLE CAUSE, DEALT ONLY WITH THE WARRANTS
FOR THE ARREST OF PETITIONERS.  HENCE WE LIMIT OUR CONSIDERATION OF THE
CASE TO THAT ASPECT OF THE DISTRICT COURT'S ORDER FOR SUPPRESSION. 

FN4  91 U.S. APP. D.C. 297, 202 F.2D 13, AS EXPLAINED IN UNITED
STATES V. STEPHENSON, 96 U.S. APP. D.C. 44, 45, 223 F.2D 336, 337. 

FN5  28 U.S.C. SEC. 1291: 

"THE COURTS OF APPEALS SHALL HAVE JURISDICTION OF APPEALS FROM ALL
FINAL DECISIONS OF THE DISTRICT COURTS  ...  EXCEPT WHERE A DIRECT
REVIEW MAY BE HAD IN THE SUPREME COURT." 

18 U.S.C. SEC. 3731: 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED STATES IN
ALL CRIMINAL CASES IN THE FOLLOWING INSTANCES: 

"FROM A DECISION OR JUDGMENT SETTING ASIDE, OR DISMISSING ANY
INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF, WHERE SUCH DECISION OR
JUDGMENT IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE
UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED. 

"FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION FOR INSUFFICIENCY
OF THE INDICTMENT OR INFORMATION, WHERE SUCH DECISION IS BASED UPON THE
INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT OR
INFORMATION IS FOUNDED. 

"FROM THE DECISION OR JUDGMENT SUSTAINING A MOTION IN BAR, WHEN THE
DEFENDANT HAS NOT BEEN PUT IN JEOPARDY. 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS TO A COURT OF APPEALS 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 EXCEPT WHERE A DIRECT
APPEAL TO THE SUPREME COURT OF THE UNITED STATES IS PROVIDED BY THIS

"FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION EXCEPT WHERE A
DIRECT APPEAL TO THE SUPREME COURT OF THE UNITED STATES IS PROVIDED BY
THIS SECTION. 

"THE APPEAL IN ALL SUCH CASES SHALL BE TAKEN WITHIN THIRTY DAYS AFTER
THE DECISION OR JUDGMENT HAS BEEN RENDERED AND SHALL BE DILIGENTLY
PROSECUTED. 

"PENDING THE PROSECUTION AND DETERMINATION OF THE APPEAL IN THE
FOREGOING INSTANCES, THE DEFENDANT SHALL BE ADMITTED TO BAIL ON HIS OWN
RECOGNIZANCE  ...  ." 

THE REFERENCES IN THE ABOVE STATUTES TO "COURTS OF APPEALS" AND
"DISTRICT COURTS" ENCOMPASS THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT AND THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA.  28 U.S.C. SECS. 43, 132, 451; 62 STAT. 991,
AS AMENDED, 63 STAT. 107.  SEE ALSO 56 STAT. 271. 

FN6  D.C. CODE, 1951, SEC. 23-105: 

"IN ALL CRIMINAL PROSECUTIONS THE UNITED STATES  ...  SHALL HAVE THE
SAME RIGHT OF APPEAL THAT IS GIVEN TO THE DEFENDANT, INCLUDING THE
RIGHT TO A BILL OF EXCEPTIONS:  PROVIDED, THAT IF ON SUCH APPEAL IT
SHALL BE FOUND THAT THERE WAS ERROR IN THE RULINGS OF THE COURT DURING
A TRIAL, A VERDICT IN FAVOR OF THE DEFENDANT SHALL NOT BE SET ASIDE." 

D.C. CODE, 1951, SEC. 17-102: 

"NOTHING CONTAINED IN ANY ACT OF CONGRESS SHALL BE CONSTRUED TO
EMPOWER THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
TO ALLOW AN APPEAL FROM ANY INTERLOCUTORY ORDER ENTERED IN ANY CRIMINAL
ACTION OR PROCEEDING OR TO ENTERTAIN ANY SUCH APPEAL HERETOFORE OR
HEREAFTER ALLOWED OR TAKEN."    FN7  SEE ALSO COBBLEDICK V. UNITED
STATES, 309 U.S. 323; BALTIMORE CONTRACTORS, INC. V. BODINGER, 348 U.S.
176, 178-182. 

FN8  AS TO THE DEVELOPMENT IN STATE LAW OF STATUTES IN DEROGATION OF
THE COMMON-LAW PRINCIPLE AGAINST APPEAL BY THE PROSECUTION, SEE UNITED
STATES V. SANGES, 144 U.S. 310, 312-318; S. REP.  NO. 5650, 59TH CONG.,
2D SESS.; H.R. REP. NO. 45, 77TH CONG., 1ST SESS. 2-3.  SEE ALSO PALKO
V. CONNECTICUT, 302 U.S. 319. 

FN9  THE ACT OF FEBRUARY 6, 1889, 25 STAT. 656, AUTHORIZED DIRECT
REVIEW IN THE SUPREME COURT BY WRIT OF ERROR "IN ALL CASES OF
CONVICTION OF CRIME THE PUNISHMENT OF WHICH PROVIDED BY LAW IS DEATH,
TRIED BEFORE ANY COURT OF THE UNITED STATES  ...  ."  TWO YEARS LATER
THE CIRCUIT COURTS OF APPEALS ACT EXTENDED THE JURISDICTION FOR DIRECT
REVIEW TO ALL "CASES OF CONVICTION OF A CAPITAL OR OTHERWISE INFAMOUS
CRIME."  26 STAT. 827.  THE BURDEN UPON THIS COURT OF HEARING THE LARGE
NUMBER OF CRIMINAL CASES LED, IN 1897, TO TRANSFER OF THE JURISDICTION
OVER CONVICTIONS IN NONCAPITAL CASES TO THE CIRCUIT COURTS OF APPEALS. 
29 STAT. 492.  SECTION 238 OF THE JUDICIAL CODE COMPLETED THE
RETRENCHMENT IN 1911 BY ELIMINATING DIRECT REVIEW OF CAPITAL CASES.  36
STAT. 1157.  SEE FRANKFURTER AND LANDIS, THE BUSINESS OF THE SUPREME
COURT (1928), 109-113. 

PRIOR TO THE ACTS OF 1889 AND 1891, THERE WAS NO JURISDICTIONAL
PROVISION FOR APPEAL OR WRIT OF ERROR IN CRIMINAL CASES.  UNITED STATES
V. MORE, 3 CRANCH 159; SEE UNITED STATES V. SANGES, 144 U.S. 310, 319. 
A QUESTION OF LAW ARISING IN A CASE TRIED BY A CIRCUIT COURT OF TWO
JUDGES, IF THEY DISAGREED ON THE QUESTION, COULD BE BROUGHT HERE UPON A
CERTIFICATE OF DIVISION OF OPINION, AT THE REQUEST OF EITHER PARTY, AND
(EXCEPT DURING ONE TWO-YEAR PERIOD) WITHOUT AWAITING THE FINAL OUTCOME
OF THE CASE IN THE CIRCUIT COURT.  2 STAT. 159; 17 STAT. 196; R.S.
SEC. 651.  SEE UNITED STATES V. SANGES, SUPRA, AT 320-321.  THE
AVAILABILITY OF THIS PROCEDURE FOR REVIEW, HAPHAZARD AT BEST BECAUSE
DEPENDENT ON DISAGREEMENT BETWEEN THE TWO SITTING JUDGES, CAME TO BE
VERY MUCH DILUTED BY THE INCREASING FREQUENCY WITH WHICH THE CIRCUIT
COURTS WERE CONDUCTED BY A SINGLE JUDGE.  SEE FRANKFURTER AND LANDIS,
79, 109. 

FN10  THE ACT OF 1891 INCLUDED AS A CATEGORY OF CASES SUBJECT TO
DIRECT REVIEW BY THIS COURT, "ANY CASE IN WHICH THE CONSTITUTIONALITY
OF ANY LAW OF THE UNITED STATES  ...  IS DRAWN IN QUESTION."  26 STAT.
828.  BUT IN UNITED STATES V. SANGES, SUPRA, THE COURT RELATED THE
HISTORY OF REPEATED REJECTIONS OF GOVERNMENT CRIMINAL APPEALS, NOTED
THAT THE ACT EXPRESSLY CONFERRED APPELLATE JURISDICTION IN "CASES OF
CONVICTION," AND HELD THAT THE ACT DID NOT SUFFICIENTLY DEMONSTRATE
CONGRESSIONAL INTENT TO HAVE CRIMINAL CASES REVIEWED AT THE BEHEST OF
THE GOVERNMENT, EITHER IN THIS COURT OR IN THE CIRCUIT COURTS OF
APPEALS.  THE COURT SAID:  "IT IS IMPOSSIBLE TO PRESUME AN INTENTION ON
THE PART OF CONGRESS TO MAKE SO SERIOUS AND FAR-REACHING AN INNOVATION
IN THE CRIMINAL JURISPRUDENCE OF THE UNITED STATES."  144 U.S., AT
323. 

SIMILARLY, AFTER REVIEW OF NONCAPITAL CONVICTIONS WAS AGAIN COMMITTED
TO THE CIRCUIT COURTS OF APPEALS IN 1897, IT WAS HELD THAT UPON A
REVERSAL OF A CONVICTION BY THAT COURT, THE GOVERNMENT COULD NOT BRING
THE CASE HERE THROUGH THE CERTIORARI JURISDICTION THAT HAD ALSO BEEN
CREATED BY THE ACT OF 1891.  UNITED STATES V. DICKINSON, 213 U.S. 92. 
EXPLICITLY.  36 STAT. 1157. 

FN11  THE 1907 ENACTMENT, 34 STAT. 1246, AUTHORIZED DIRECT REVIEW IN
THIS COURT BY WRIT OF ERROR IN THE SAME THREE CLASSES OF CASES, ROUGHLY
SPEAKING, AS ARE LISTED IN THE FIRST FOUR PARAGRAPHS OF THE PRESENT 18
U.S.C. SEC. 3731, QUOTED IN NOTE 5, SUPRA.  THE ORIGINAL ACT ALSO
INCLUDED THE PROVISIONS PROTECTIVE OF THE DEFENDANT IN THE LAST TWO
PARAGRAPHS QUOTED THERE, RELATING TO EXPEDITION OF THE GOVERNMENT
APPEAL AND BAIL ON HIS OWN RECOGNIZANCE, AND THE ORIGINAL ACT HAD
ADDITIONAL CAUTIONARY PROVISIONS, COMMANDING PRECEDENCE FOR THESE CASES
AND BARRING THE WRIT OF ERROR "IN ANY CASE WHERE THERE HAS BEEN A
VERDICT IN FAVOR OF THE DEFENDANT." 

THE LEGISLATIVE HISTORY EMPHASIZES THE AWARENESS OF THE CONGRESS THAT
GOVERNMENT APPEALS IN CRIMINAL CASES WERE A SHARP INNOVATION AND
CONGRESSIONAL CONCERN THAT SUCH JURISDICTION SHOULD GO NO FARTHER AT
THAT TIME THAN THE IMMEDIATE PROBLEM OF AFFORDING REVIEW FOR TRIAL
COURT OPINIONS AS TO THE CONSTRUCTION OR VALIDITY OF FEDERAL STATUTES. 
IN BRIEF, THE DEVELOPMENT OF THE CRIMINAL APPEALS ACT WAS THIS:  THE
HOUSE BILL PROPOSED ADOPTION OF THE LANGUAGE OF THE DISTRICT OF
COLUMBIA CODE OF 1901, WHICH HAD GIVEN THE GOVERNMENT "THE SAME RIGHT
OF APPEAL THAT IS GIVEN TO THE DEFENDANT  ... ."  (QUOTED, NOTE 6,
SUPRA, AND DISCUSSED LATER IN THIS OPINION.)  THE SENATE COMMITTEE ON
THE JUDICIARY SUBSTITUTED A MORE SPECIFICALLY DRAWN MEASURE, DIVIDING
THE JURISDICTION BETWEEN THIS COURT AND THE CIRCUIT COURT OF APPEALS
ALONG THE LINE THE 1891 ACT HAD DRAWN FOR CIVIL CASES.  AFTER LENGTHY
FLOOR DEBATE, IN WHICH VARIOUS OBJECTIONS TO THE MEASURE WERE PUT
FORTH, IT WAS AMENDED ON THE FLOOR BY NARROWING THE CLASSES OF CASES IN
WHICH THE GOVERNMENT COULD SEEK REVIEW, BY LIMITING THE JURISDICTION TO
DIRECT REVIEW HERE, AND BY ADDING THE PROTECTIVE PROVISIONS NOTED
ABOVE.  THE HOUSE ACCEPTED THE SENATE PRODUCT.  SEE H.R. REP. NO. 2119,
59 TH CONG., 1ST SESS.; S. REP. NO. 3922, 59TH CONG., 1ST SESS.; S.
REP. NO. 5650, 59TH CONG., 2D SESS.; H.R. CONF. REP. NO. 8113, 59TH
CONG., 2D SESS.; 40 CONG. REC. 8695, 9032-9033; 41 CONG. REC. 2190
2197, 2745-2763, 2818-1825, 3044-3047.  SEE ALSO FRANKFURTER AND
LANDIS, 114-119. 

FN12  56 STAT. 271.  SEE H.R. REP. NO. 45, 77TH CONG., 1ST SESS.  IN
THESE NEW CATEGORIES OF CASES THE APPEAL WAS DIRECTED TO THE COURT OF
APPEALS.  THE PRESENT VERSION OF THE ADDED LANGUAGE IS QUOTED, AS THE
FIFTH THROUGH SEVENTH PARAGRAPHS OF 18 U.S.C. SEC. 3731, IN NOTE 5,
SUPRA. 

FN13  COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541, 545-547; SWIFT &
CO. V. COMPANIA CARIBE, 339 U.S. 684, 688-689; AND CASES CITED. 

FN14  E.G., PERLMAN V. UNITED STATES, 247 U.S. 7; GO-BART IMPORTING
CO. V. UNITED STATES, 282 U.S. 344. 

FN15  CF. DIER V. BANTON, 262 U.S. 147.  RULE 41(E) EXPLICITLY
AUTHORIZES MAKING THE MOTION IN A DIFFERENT DISTRICT: 

"A PERSON AGGRIEVED BY AN UNLAWFUL SEARCH AND SEIZURE MAY MOVE THE
DISTRICT COURT FOR THE DISTRICT IN WHICH THE PROPERTY WAS SEIZED FOR
THE RETURN OF THE PROPERTY AND TO SUPPRESS FOR USE AS EVIDENCE ANYTHING
SO OBTAINED  ...  .  THE MOTION TO SUPPRESS EVIDENCE MAY ALSO BE MADE
IN THE DISTRICT WHERE THE TRIAL IS TO BE HAD  ...  ." 

FN16  E.G., DICKHART V. UNITED STATES, 57 APP. D.C. 5, 16 F.2D 345. 
THAT WAS A MOTION, AFTER ACQUITTAL IN A CASE UNDER THE NATIONAL
PROHIBITION ACT, 41 STAT. 305, TO REGAIN POSSESSION OF LIQUOR THAT HAD
BEEN SEIZED.  SEE ALSO NOTE 17, INFRA. 

FN17  E.G., STEELE V. UNITED STATES NO. 1, 267 U.S. 498; UNITED
STATES V. KIRSCHENBLATT, 16 F.2D 202; CF. ALSO STEELE V. UNITED STATES
NO. 2, 267 U.S. 505; DOWLING V. COLLINS, 10 F.2D 62.  WE DO NOT SUGGEST
THAT A MOTION MADE UNDER RULE 41(E) GAINS OR LOSES APPEALABILITY SIMPLY
UPON WHETHER IT ASKS RETURN OR SUPPRESSION OR BOTH.  THE CASES JUST
CITED AROSE UNDER THE NATIONAL PROHIBITION ACT, WHICH PROVIDED AN
INDEPENDENT PROCEEDING TO SECURE THE RETURN OF PROPERTY SEIZED UNDER A
SEARCH WARRANT THAT HAD BEEN ISSUED WRONGFULLY.  41 STAT. 315, ADOPTING
40 STAT. 228.  THAT FACTOR UNDERLAY THE DISCUSSION OF THIS CATEGORY OF
ORDERS AS APPEALABLE IN COGEN V. UNITED STATES, 278 U.S. 221, 225-227. 
THE "ESSENTIAL CHARACTER AND THE CIRCUMSTANCES UNDER WHICH IT IS MADE"
DETERMINE WHETHER A MOTION IS AN INDEPENDENT PROCEEDING OR MERELY A
STEP IN THE CRIMINAL CASE.  ID., AT 225; CF. UNITED STATES V. WALLACE &
TIERNAN CO., 336 U.S. 793, 801-803. 

WE THINK THAT A CONTEMPORARY ILLUSTRATION OF THIS CATEGORY IS UNITED
STATES V. PONDER, 238 F.2D 825, WHERE THE SUPPRESSION ORDER RELATED TO
A PLENARY PROCEEDING THAT HAD BEEN BROUGHT IN ORDER TO IMPOUND ELECTION
RECORDS FOR INVESTIGATION BY THE DEPARTMENT OF JUSTICE AND THE GRAND
JURY. 

FN18  SEE ESPECIALLY UNITED STATES V. SANGES, 144 U.S. 310; CROSS V.
UNITED STATES, 145 U.S. 571; CF. KEPNER V. UNITED STATES, 195 U.S. 100,
124-134. 

FN19  UNITED STATES V. ROSENWASSER, 145 F.2D 1015 (C.A. 9TH CIR.);
CF. UNITED STATES V. JANITZ, 161 F.2D 19 (C.A. 3D CIR.) (ORDER MADE AT
TRIAL); UNITED STATES V. WILLIAMS, 227 F.2D 149 (C.A. 4TH CIR.) (MOTION
MADE BEFORE INDICTMENT); SEE UNITED STATES V. ONE 1946 PLYMOUTH SEDAN,
167 F.2D 3, 8-9 (C.A. 7TH CIR.).  THE COURT BELOW HAS HELD A PRE-TRIAL
ORDER SUPPRESSING WIRETAP EVIDENCE TO BE INTERLOCUTORY, DISTINGUISHING
ITS RULING IN THE CEFARATTI CASE ON THE BASIS THAT THE PROHIBITION OF
RULE 41(E) AGAINST REVIVING THE ISSUE OF ADMISSIBILITY AT THE TRIAL
DOES NOT APPLY TO WIRETAP EVIDENCE.  UNITED STATES V. STEPHENSON, 96
U.S. APP.  D.C. 44, 223 F.2D 336.  WE EXPRESS NO OPINION AS TO THIS
DISTINCTION, IN VIEW OF OUR DISPOSITION OF THE PRESENT CASE. 

AN APPEAL BY THE UNITED STATES WAS TREATED ON THE MERITS WITHOUT
DISCUSSION OF APPEALABILITY, WHERE THE MOVE FOR RETURN OF PAPERS WAS
MADE AFTER INDICTMENT, IN UNITED STATES V. KIRSCHENBLATT, 16 F.2D 202
(C.A.2D CIR.).  THAT PROCEEDING HAD ELEMENTS OF INDEPENDENT CHARACTER
BECAUSE OF ITS STATUTORY CONTEXT UNDER THE NATIONAL PROHIBITION ACT. 
LIKEWISE, UNITED STATES V. PONDER, 238 F.2D 825 (C.A. 4TH CIR.), WHICH
HAS SOME BROAD LANGUAGE FAVORING APPEALABILITY FOR THE GOVERNMENT, ON
ITS FACTS WAS SEEN BY THE COURT AS A PROCEEDING INDEPENDENT OF THE
PENDING CRIMINAL CASE.  SEE NOTE 17, SUPRA. 

FN20  FOR AN EARLIER TECHNIQUE, SEE NOTE 9, SUPRA. 

FN21  SEE UNITED STATES V. BALL, 163 U.S. 662, 671; KEPNER V. UNITED
STATES, 195 U.S. 100, 124-134. 

UNDER THE DISTRICT OF COLUMBIA CODE OF 1901, TO BE DISCUSSED LATER IN
THIS OPINION, THE GOVERNMENT WAS GRANTED "THE SAME RIGHT OF APPEAL THAT
IS GIVEN TO THE DEFENDANT,  ...  PROVIDED, THAT IF ON SUCH APPEAL IT
SHALL BE FOUND THAT THERE WAS ERROR IN THE RULINGS OF THE COURT DURING
THE TRIAL, A VERDICT IN FAVOR OF THE DEFENDANT SHALL NOT BE SET
ASIDE."  31 STAT. 1341.  IT WAS SOON HELD THAT THE EFFECT OF THE
PROVISO WAS TO PRECLUDE ENTIRELY THE TAKING OF AN APPEAL BY THE
GOVERNMENT AFTER A VERDICT FOR THE DEFENDANT.  UNITED STATES V. EVANS,
30 APP. D.C. 58, APPROVED, 213 U.S. 297; SEE UNITED STATES V. MARTIN,
81 A.2D 651, 652-653 (MUN.  CT. APP.). 

FN22 IN THE NARCOTIC CONTROL ACT OF 1956, THE CONGRESS ENACTED THE
FOLLOWING PROVISION IN A NEW CHAPTER BEING ADDED TO TITLE 18 OF THE
U.S.C. (SUPP. IV, 1957): 

"SEC. 1404.  MOTION TO SUPPRESS - APPEAL BY THE UNITED STATES. 

"IN ADDITION TO ANY OTHER RIGHT TO APPEAL, THE UNITED STATES SHALL
HAVE THE RIGHT TO APPEAL FROM AN ORDER GRANTING A MOTION FOR THE RETURN
OF SEIZED PROPERTY AND TO SUPPRESS EVIDENCE MADE BEFORE THE TRIAL OF A
PERSON CHARGED WITH A VIOLATION OF DESIGNATED NARCOTICS OFFENSES. 

"THIS SECTION SHALL NOT APPLY WITH RESPECT TO ANY SUCH MOTION UNLESS
THE UNITED STATES ATTORNEY SHALL CERTIFY, TO THE JUDGE GRANTING SUCH
MOTION, THAT THE APPEAL IS NOT TAKEN FOR PURPOSES OF DELAY.  ANY APPEAL
UNDER THIS SECTION SHALL BE TAKEN WITHIN 30 DAYS AFTER THE DATE THE
ORDER WAS ENTERED AND SHALL BE DILIGENTLY PROSECUTED."  70 STAT. 573. 

THE LEGISLATIVE HISTORY SHOWS THAT THE DEPARTMENT OF JUSTICE
EXPRESSED A PREFERENCE FOR THE PASSAGE OF OTHER BILLS, WHICH HAD BEEN
INTRODUCED TO AMEND 18 U.S.C. SEC. 3731 SO AS TO AUTHORIZE GOVERNMENT
APPEALS FROM SUPPRESSION ORDERS IN ALL FEDERAL PROSECUTIONS, AND
WITHOUT THE QUALIFICATION REQUIRING CERTIFICATION BY THE UNITED STATES
ATTORNEY.  SEE S. REP. NO. 1997, 84TH CONG., 2D SESS. 19.  THE NEED FOR
THE ENACTMENT OF THE MORE LIMITED MEASURE WAS STATED BY THE RESPECTIVE
COMMITTEES, WHICH WERE AWARE OF SOME OF THE PRIOR COURT DECISIONS,
INCLUDING THOSE OF THE DISTRICT OF COLUMBIA CIRCUIT IN CEFARATTI AND
THE INSTANT CASE.  SEE ID., AT 11, 15, 26; S. REP. NO. 2033, 84TH
CONG., 2D SESS. 16-19, 28; H.R. REP. NO. 2388, 84TH CONG., 2D SESS. 5;
HEARING BEFORE THE SUBCOMMITTEE ON IMPROVEMENTS IN THE FEDERAL CRIMINAL
CODE OF THE SENATE COMMITTEE ON THE JUDICIARY ON S. 3760, 84TH CONG.,
2D SESS. 7-11, 38-43. 

THE MORE GENERAL BILLS REFERRED TO BY THE DEPARTMENT OF JUSTICE WERE
S. 3423 AND H.R. 9364, OF THE 84TH CONGRESS.  IN THE CURRENT SESSION OF
THE 85TH CONGRESS, A BILL TO THE SAME EFFECT, H.R. 263, HAS BEEN
INTRODUCED. 

FN23  THUS, THE CRIMINAL APPEALS ACT HAS PROVIDED FOR BAIL ON THE
DEFENDANT'S OWN RECOGNIZANCE, AND THE BILLS LISTED IN NOTE 22, SUPRA,
WOULD EXTEND THAT PROVISION TO DEFENDANTS PENDING GOVERNMENT APPEALS
FROM SUPPRESSION ORDERS, WHILE THE APPEAL SECTION ENACTED IN THE
NARCOTIC CONTROL ACT OF 1956 DOES NOT REFER TO BAIL.  BOTH ACTS AND THE
BILLS HAVE THE SAME ACCELERATION PROVISION, ALBEIT THE 30-DAY PERIOD
WAS MUCH MORE OF A SPEED-UP WHEN THE CRIMINAL APPEALS ACT WAS DRAWN IN
1907 THAN IT IS TODAY.  CF. FED. RULES CRIM. PROC., 37(A)(2); 28 U.S.C.
SEC. 2107.  ONLY THE NARCOTIC CONTROL ACT REQUIRES AN EXPRESS
CERTIFICATION THAT THE GOVERNMENT APPEAL IS NOT TAKEN FOR PURPOSES OF
DELAY. 

FN24  SEE EX PARTE BRADLEY, 7 WALL.  364, 366-368; FRANKFURTER AND
LANDIS, 120-124. 

FN25  5 STAT. 307; DIST. COL. R.S. SEC. 845. 

FN26  31 STAT. 1202.  THERE WAS ALSO A POLICE COURT, GIVEN CONCURRENT
JURISDICTION OVER MISDEMEANORS, WHICH NOW IS KNOWN AS THE CRIMINAL
BRANCH OF THE MUNICIPAL COURT.  31 STAT.  1196; D.C. CODE, 1951, SEC.
11-755.  IN ORDER TO SIMPLIFY THE DISCUSSION, WE SHALL NOT REFER IN
THIS OPINION TO THE APPELLATE JURISDICTION THAT HAS EXISTED, IN
CHANGING FORMS, FROM THE DECISIONS OF THIS INFERIOR COURT.  SEE D.C.
CODE, 1951, SECS. 11-772, 11-773; UNITED STATES V. MARTIN, 81 A.2D 651
(MUN.  CT. APP.); UNITED STATES V. BASILIKO, 35 A.2D 185 (MUN.  CT.
APP.).    FN27  31 STAT. 1225.  THE RELEVANT TEXT OF SEC. 226 WAS: 

"ANY PARTY AGGRIEVED BY A FINAL ORDER, JUDGMENT, OR DECREE OF THE
SUPREME COURT OF THE DISTRICT OF COLUMBIA  ...  MAY APPEAL THEREFROM TO
THE SAID COURT OF APPEALS; ...  .  APPEALS SHALL ALSO BE ALLOWED TO
SAID COURT OF APPEALS FROM ALL INTERLOCUTORY ORDERS OF THE SUPREME
COURT OF THE DISTRICT OF COLUMBIA  ...  WHEREBY THE POSSESSION OF
PROPERTY IS CHANGED OR AFFECTED, SUCH AS ORDERS FOR THE APPOINTMENT OF
RECEIVERS, GRANTING INJUNCTIONS, DISSOLVING WRITS OF ATTACHMENT, AND
THE LIKE; AND ALSO FROM ANY OTHER INTERLOCUTORY ORDER, IN THE
DISCRETION OF THE SAID COURT OF APPEALS, WHENEVER IT IS MADE TO APPEAR
TO SAID COURT UPON PETITION THAT IT WILL BE IN THE INTEREST OF JUSTICE
TO ALLOW SUCH APPEAL." 

FN28  A LIST OF STATE PROVISIONS WAS SUBMITTED TO THE CONGRESS IN
1907 IN CONNECTION WITH THE CRIMINAL APPEALS ACT.  SEE S. REP. NO.
5650, 59TH CONG., 2D SESS.  ALSO SEE UNITED STATES V. SANGES, 144 U.S.
310, 312-318. 

FN29  56 STAT. 271. 

FN30  62 STAT. 862, 992; 63 STAT. 110. 

FN31  SEE S. REP. NO. 926, 69TH CONG., 1ST SESS.; H.R. REP. NO. 1363,
69TH CONG., 1ST SESS.; 67 CONG. REC. 9968. 

FN32  63 STAT. 110. 

FN33  COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541; SWIFT & CO. V.
COMPANIA CARIBE, 339 U.S. 684; STACK V. BOYLE, 342 U.S. 1. 

FN34  CASES CITED NOTE 33, SUPRA; SEE ALSO ANTE, PP. 399-408. 

SINCE THE COURT OF APPEALS RELIED ON PRECEDENTS OF GENERAL
APPLICABILITY TO FINALITY PROBLEMS IN CONSTRUING THE DISTRICT OF
COLUMBIA STATUTORY PROVISIONS, WE DO NOT CONSIDER THAT THIS CASE FALLS
WITHIN THE POLICY THAT ORDINARILY CAUSES US TO ADHERE TO THAT COURT'S
VIEW ON LOCAL LAW MATTERS.  CF. DEL VECCHIO V. BOWERS, 296 U.S. 280,
285; SEE GRIFFIN V. UNITED STATES, 336 U.S. 704, 712-718. 
..END :












VANDERBILT V. VANDERBILT 354 U.S. 416 


NO. 302.  ARGUED APRIL 22-23, 1957.  - DECIDED JUNE 24, 1957.  - 1
N.Y.2D 342, 135 N.E.2D 553, AFFIRMED. 


A HUSBAND AND WIFE SEPARATED WHILE LIVING IN CALIFORNIA, AND THE WIFE
MOVED TO NEW YORK, WHERE SHE HAS SINCE RESIDED.  SUBSEQUENTLY, THE
HUSBAND SUED FOR DIVORCE IN NEVADA.  THE WIFE WAS NOT SERVED WITH
PROCESS AND DID NOT APPEAR IN THE NEVADA COURT; BUT IT ENTERED A FINAL
DECREE OF DIVORCE, PROVIDING THAT BOTH HUSBAND AND WIFE WERE "FREED AND
RELEASED FROM THE BONDS OF MATRIMONY AND ALL DUTIES AND OBLIGATIONS
THEREOF."  SUBSEQUENTLY, THE WIFE SUED IN NEW YORK FOR SEPARATION FROM
THE HUSBAND AND ALIMONY.  THE NEW YORK COURT DID NOT HAVE PERSONAL
JURISDICTION OVER THE HUSBAND; BUT IT SEQUESTERED HIS PROPERTY IN THE
STATE AND ENTERED AN ORDER DIRECTING THE HUSBAND TO MAKE SUPPORT
PAYMENTS TO THE WIFE.  HELD:  SINCE THE NEVADA COURT HAD NO PERSONAL
JURISDICTION OVER THE WIFE, IT HAD NO POWER TO EXTINGUISH ANY RIGHT SHE
HAD UNDER NEW YORK LAW TO FINANCIAL SUPPORT FROM HER HUSBAND, ITS
DECREE WAS VOID INSOFAR AS IT PURPORTED TO DO SO, AND THE NEW YORK
JUDGMENT DID NOT VIOLATE THE FULL FAITH AND CREDIT CLAUSE.  PP. 416
419. 

VANDERBILT V. VANDERBILT ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK AND SUPREME COURT OF
NEW YORK, COUNTY OF NEW YORK. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

CORNELIUS VANDERBILT, JR., PETITIONER, AND PATRICIA VANDERBILT,
RESPONDENT, WERE MARRIED IN 1948.  THEY SEPARATED IN 1952 WHILE LIVING
IN CALIFORNIA.  THE WIFE MOVED TO NEW YORK WHERE SHE HAS RESIDED SINCE
FEBRUARY 1953.  IN MARCH OF THAT YEAR THE HUSBAND FILED SUIT FOR
DIVORCE IN NEVADA.  THIS PROCEEDING CULMINATED, IN JUNE 1953, WITH A
DECREE OF FINAL DIVORCE WHICH PROVIDED THAT BOTH HUSBAND AND WIFE WERE
"FREED AND RELEASED FROM THE BONDS OF MATRIMONY AND ALL THE DUTIES AND
OBLIGATIONS THEREOF  ...  ."  (FN1)  THE WIFE WAS NOT SERVED WITH
PROCESS IN NEVADA AND DID NOT APPEAR BEFORE THE DIVORCE COURT. 

IN APRIL 1954, MRS. VANDERBILT INSTITUTED AN ACTION IN A NEW YORK
COURT PRAYING FOR SEPARATION FROM PETITIONER AND FOR ALIMONY.  THE NEW
YORK COURT DID NOT HAVE PERSONAL JURISDICTION OVER HIM, BUT IN ORDER TO
SATISFY HIS OBLIGATIONS, IF ANY, TO MRS. VANDERBILT, IT SEQUESTERED HIS
PROPERTY WITHIN THE STATE.  (FN2)  HE APPEARED SPECIALLY AND, AMONG
OTHER DEFENSES TO THE ACTION, CONTENDED THAT THE FULL FAITH AND CREDIT
CLAUSE OF THE UNITED STATES CONSTITUTION (FN3) COMPELLED THE NEW YORK
COURT TO TREAT THE NEVADA DIVORCE AS HAVING ENDED THE MARRIAGE AND AS
HAVING DESTROYED ANY DUTY OF SUPPORT WHICH HE OWED THE RESPONDENT. 
WHILE THE NEW YORK COURT FOUND THE NEVADA DECREE VALID AND HELD THAT IT
HAD EFFECTIVELY DISSOLVED THE MARRIAGE, IT NEVERTHELESS ENTERED AN
ORDER, UNDER SEC. 1170-B OF THE NEW YORK CIVIL PRACTICE ACT, (FN4)
DIRECTING PETITIONER TO MAKE DESIGNATED SUPPORT PAYMENTS TO
RESPONDENT.  207 MISC.  294, 138 N.Y.S.2D 222.  THE NEW YORK COURT OF
APPEALS UPHELD THE SUPPORT ORDER.  1 N.Y.2D 342, 135 N.E.2D 553. 
PETITIONER THEN APPLIED TO THIS COURT FOR CERTIORARI CONTENDING THAT
SEC. 1170-B, AS APPLIED, IS UNCONSTITUTIONAL BECAUSE IT CONTRAVENES THE
FULL FAITH AND CREDIT CLAUSE.  (FN5)  WE GRANTED CERTIORARI, 352 U.S.
820. 

IN ESTIN V. ESTIN, 334 U.S. 541, THIS COURT DECIDED THAT A NEVADA
DIVORCE COURT, WHICH HAD NO PERSONAL JURISDICTION OVER THE WIFE, HAD NO
POWER TO TERMINATE A HUSBAND'S OBLIGATION TO PROVIDE HER SUPPORT AS
REQUIRED IN A PRE-EXISTING NEW YORK SEPARATION DECREE.  THE FACTOR
WHICH DISTINGUISHES THE PRESENT CASE FROM ESTIN IS THAT HERE THE WIFE'S
RIGHT TO SUPPORT HAD NOT BEEN REDUCED TO JUDGMENT PRIOR TO THE
HUSBAND'S EX PARTE DIVORCE.  IN OUR OPINION THIS DIFFERENCE IS NOT
MATERIAL ON THE QUESTION BEFORE US.  SINCE THE WIFE WAS NOT SUBJECT TO
ITS JURISDICTION, THE NEVADA DIVORCE COURT HAD NO POWER TO EXTINGUISH
ANY RIGHT WHICH SHE HAD UNDER THE LAW OF NEW YORK TO FINANCIAL SUPPORT
FROM HER HUSBAND.  IT HAS LONG BEEN THE CONSTITUTIONAL RULE THAT A
COURT CANNOT ADJUDICATE A PERSONAL CLAIM OR OBLIGATION UNLESS IT HAS
JURISDICTION OVER THE PERSON OF THE DEFENDANT.  (FN6) HERE, THE NEVADA
DIVORCE COURT WAS AS POWERLESS TO CUT OFF THE WIFE'S SUPPORT RIGHT AS
IT WOULD HAVE BEEN TO ORDER THE HUSBAND TO PAY ALIMONY IF THE WIFE HAD
BROUGHT THE DIVORCE ACTION AND HE HAD NOT BEEN SUBJECT TO THE DIVORCE
COURT'S JURISDICTION.  THEREFORE, THE NEVADA DECREE, TO THE EXTENT IT
PURPORTED TO AFFECT THE WIFE'S RIGHT TO SUPPORT, WAS VOID AND THE FULL
FAITH AND CREDIT CLAUSE DID NOT OBLIGATE NEW YORK TO GIVE IT
RECOGNITION.  (FN7) 

PETITIONER CLAIMS THAT THIS CASE IS GOVERNED BY THOMPSON V. THOMPSON,
226 U.S. 551.  FOR THE REASONS GIVEN IN A CONCURRING OPINION IN
ARMSTRONG V. ARMSTRONG, 350 U.S. 568, 575, AT 580-581, THE THOMPSON
CASE, INSOFAR AS IT HELD THAT AN EX PARTE DIVORCE DESTROYED ALIMONY
RIGHTS, CAN NO LONGER BE CONSIDERED CONTROLLING.  AFFIRMED. 

FN1  IT SEEMS CLEAR THAT IN NEVADA THE EFFECT OF THIS DECREE WAS TO
PUT AN END TO THE HUSBAND'S DUTY TO SUPPORT THE WIFE - PROVIDED, OF
COURSE, THAT THE NEVADA COURTS HAD POWER TO DO THIS.  SWEENEY V.
SWEENEY, 42 NEV. 431, 438-439, 179 P. 638, 639-640; HERRICK V. HERRICK,
55 NEV. 59, 68, 25 P.2D 378, 380.  SEE ESTIN V. ESTIN, 334 U.S. 541,
547. 

FN2  SEE PENNINGTON V. FOURTH NATL.  BANK OF CINCINNATI, 243 U.S.
269; HARRIS V. BALK, 198 U.S. 215. 

FN3  ART. IV, SEC. 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."  CONGRESS HAS PROVIDED THAT JUDGMENTS SHALL HAVE THE
SAME FORCE AND EFFECT IN EVERY COURT THROUGHOUT THE UNITED STATES THAT
THEY HAVE IN THE STATE WHERE THEY WERE RENDERED.  28 U.S.C. SEC. 1738. 

FN4  "IN AN ACTION FOR DIVORCE, SEPARATION OR ANNULMENT,  ...  WHERE
THE COURT REFUSES TO GRANT SUCH RELIEF BY REASON OF A FINDING BY THE
COURT THAT A DIVORCE  ...  DECLARING THE MARRIAGE A NULLITY HAD
PREVIOUSLY BEEN GRANTED TO THE HUSBAND IN AN ACTION IN WHICH
JURISDICTION OVER THE PERSON OF THE WIFE WAS NOT OBTAINED, THE COURT
MAY, NEVERTHELESS, RENDER IN THE SAME ACTION SUCH JUDGMENT AS JUSTICE
MAY REQUIRE FOR THE MAINTENANCE OF THE WIFE."  GILBERT-BLISS' N.Y.
CIV. PRAC., VOL. 6A, 1956 CUM. SUPP., SEC. 1170-B. 

FN5  THE PETITION FOR CERTIORARI ALSO RAISED A NUMBER OF OTHER
CONTENTIONS.  WE HAVE CONSIDERED THEM AND FIND THAT THEY DO NOT JUSTIFY
REVERSING THE DECISION BELOW. 

FN6  PENNOYER V. NEFF, 95 U.S. 714, 726-727.  IF A DEFENDANT HAS
PROPERTY IN A STATE IT CAN ADJUDICATE HIS OBLIGATIONS, BUT ONLY TO THE
EXTENT OF HIS INTEREST IN THAT PROPERTY.  PENNINGTON V. FOURTH NATL. 
BANK OF CINCINNATI, 243 U.S. 269; HARRIS V. BALK, 198 U.S. 215. 

FN7  A CONCURRING OPINION IN ARMSTRONG V. ARMSTRONG, 350 U.S. 568,
575, AND THE AUTHORITIES COLLECTED THERE, SET FORTH IN GREATER DETAIL
THE REASONS UNDERLYING THIS HOLDING.  CF.  MEREDITH V. MEREDITH, 96
U.S. APP. D.C. 355, 226 F.2D 257, 69 HARV. L. REV. 1497. 

"A STATE LACKS JUDICIAL JURISDICTION TO ABSOLVE A SPOUSE FROM ANY
DUTY OF SUPPORT WHICH, UNDER THE LAW OF A SECOND STATE, HE MAY OWE THE
OTHER SPOUSE IN THE ABSENCE OF PERSONAL JURISDICTION OVER THE LATTER." 
RESTATEMENT, CONFLICT OF LAWS, SEC. 116(2) (TENT.  DRAFT NO. 1, 1953),
AND SEE COMMENT F TO SEC. 116. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE QUESTION IN THIS CASE IS WHETHER NEVADA, WHICH WAS EMPOWERED TO
GRANT PETITIONER A DIVORCE WITHOUT PERSONAL JURISDICTION OVER
RESPONDENT THAT MUST BE RESPECTED, BY COMMAND OF THE CONSTITUTION, BY
EVERY OTHER STATE, WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, WAS AT THE
SAME TIME EMPOWERED BY VIRTUE OF ITS DOMICILIARY CONNECTION WITH
PETITIONER TO MAKE, INCIDENTAL TO ITS DISSOLUTION OF THE MARRIAGE, AN
ADJUDICATION DENYING ALIMONY TO WHICH SISTER STATES MUST ALSO GIVE FULL
FAITH AND CREDIT.  WHATEVER THE ANSWER TO THE QUESTION MAY BE, ESTIN V.
ESTIN, 334 U.S. 541, DOES NOT SUPPLY IT.  WHAT THE COURT NOW STATES TO
BE "NOT MATERIAL" WAS CRUCIAL TO THE DECISION IN THAT CASE, NAMELY, THE
PRIOR NEW YORK SUPPORT ORDER, WHICH THE COURT HELD NEVADA WAS REQUIRED
TO RESPECT BY VIRTUE OF THE FULL FAITH AND CREDIT CLAUSE, ART. IV, SEC.
1, OF THE CONSTITUTION.  THAT THIS FACT WAS CRUCIAL TO THE COURT'S
DECISION IN THAT CASE IS MADE CLEAR BY THE COURT'S REFERENCE TO THE
PRIOR NEW YORK JUDGMENT IN ITS TWO STATEMENTS OF THE QUESTION PRESENTED
AND MORE THAN A HALF DOZEN TIMES THROUGHOUT THE COURSE OF ITS OPINION. 
THE COURT RIGHTLY REGARDED THE FACT AS CRUCIAL BECAUSE OF THE
REQUIREMENT OF ART. IV, SEC. 1, THAT NEVADA GIVE FULL FAITH AND CREDIT
TO THE PRIOR NEW YORK "JUDICIAL PROCEEDINGS." 

THE COURT NOW CHOOSES TO REGARD THE EXISTENCE OF A PRIOR NEW YORK
SUPPORT ORDER AS "NOT MATERIAL," HOLDING FOR THE FIRST TIME THAT "THE
NEVADA DIVORCE COURT HAD NO POWER TO EXTINGUISH ANY RIGHT WHICH
RESPONDENT HAD UNDER THE LAW OF NEW YORK TO FINANCIAL SUPPORT FROM HER
HUSBAND.  IT HAS LONG BEEN THE CONSTITUTIONAL RULE THAT A COURT CANNOT
ADJUDICATE A PERSONAL CLAIM OR OBLIGATION UNLESS IT HAS JURISDICTION
OVER THE PERSON OF THE DEFENDANT (CITING FOR THIS PROPOSITION, PENNOYER
V. NEFF, 95 U.S. 714, 726-727)."  WE HAVE THUS REACHED ANOTHER STATE -
ONE CANNOT SAY IT IS THE LAST - IN THE COURT'S TORTUOUS COURSE OF
CONSTITUTIONAL ADJUDICATION RELATING TO DISSOLUTION OF THE MARRIAGE
STATUS.  WHEREAS PREVIOUSLY ONLY THE STATE OF "MATRIMONIAL DOMICILE"
COULD GRANT AN EX PARTE DIVORCE AND ALIMONY, NOW ANY DOMICILIARY STATE
CAN GRANT AN EX PARTE DIVORCE, BUT NO STATE, EVEN IF DOMICILIARY, CAN
GRANT ALIMONY EX PARTE WHEN IT GRANTS A DIVORCE EX PARTE. 

IT WILL MAKE FOR CLARITY TO GIVE A BRIEF REVIEW OF THE SINGULAR
HISTORY OF MATRIMONIAL LAW IN THIS COURT SINCE THE DECISION IN ATHERTON
V. ATHERTON, 181 U.S. 155.  IN THAT CASE, THE COURT HELD THAT A SISTER
STATE HAD TO GIVE FULL FAITH AND CREDIT TO A DIVORCE GRANTED, ON THE
BASIS OF CONSTRUCTIVE SERVICE, BY THE MATRIMONIAL DOMICILE TO A
DESERTED HUSBAND.  IN HADDOCK V. HADDOCK, 201 U.S. 562, THE COURT
REFUSED TO EXTEND ATHERTON, HOLDING THAT A STATE NEED NOT GIVE FULL
FAITH AND CREDIT TO A DIVORCE GRANTED EX PARTE TO A DESERTED HUSBAND BY
A DOMICILIARY STATE OTHER THAN THE MATRIMONIAL DOMICILE.  THESE
PRECEDENTS WERE APPLIED TO THE INCIDENTAL CLAIM TO ALIMONY IN THOMPSON
V. THOMPSON, 226 U.S. 551, WHERE THE COURT HELD THAT FULL FAITH AND
CREDIT WAS TO BE GIVEN TO THE REFUSAL OF THE MATRIMONIAL DOMICILE TO
GRANT ALIMONY WHEN IT GRANTED A DIVORCE ON THE BASIS OF SUBSTITUTED
SERVICE.   UNDER THE PRE-WILLIAMS LAW, THEN, THE SAME JURISDICTIONAL
RULES APPLIED TO THE DISSOLUTION OF THE MARRIAGE TIE AND TO AN
INCIDENTAL ADJUDICATION DENYING ALIMONY.  NOT ONLY THE ADJUDICATION OF
DIVORCE BUT ALSO THE ADJUDICATION DENYING ALIMONY BY THE MATRIMONIAL
DOMICILE WAS REQUIRED TO BE GIVEN FULL FAITH AND CREDIT DESPITE THE
LACK OF PERSONAL JURISDICTION OVER THE OTHER SPOUSE. 

IN WILLIAMS V. NORTH CAROLINA, I, 317 U.S. 287, THE SCOPE OF ART. IV,
SEC. 1, WAS FOUND TO REQUIRE FULL FAITH AND CREDIT TO BE GIVEN TO A
DIVORCE GRANTED EX PARTE BY ANY STATE WHERE ONE SPOUSE WAS DOMICILED. 
THE LIMITATION OF EX PARTE DIVORCES TO THE MATRIMONIAL DOMICILE IMPOSED
BY HADDOCK V. HADDOCK WAS REJECTED AS BEING BASED ON "FICTION." 
WILLIAMS V. NORTH CAROLINA, II, 325 U.S. 226, MADE IT CLEAR THAT FULL
FAITH AND CREDIT WAS REQUIRED TO BE GIVEN ONLY IF THE GRANTING STATE
WAS ACTUALLY A DOMICILIARY STATE, THAT THE FINDING ON THIS ISSUE COULD
NOT BE FORECLOSED BY THE DECREEING STATE, AND THAT IT COULD BE
READJUDICATED LATER BY ANOTHER STATE.  BUT THIS RESTRICTION OF WILLIAMS
II WAS CONSIDERABLY WEAKENED WHEN THE COURT HELD THAT A SISTER STATE,
NO MATTER HOW GREAT ITS INTEREST BECAUSE OF ITS OWN SOCIAL POLICY, WAS
PRECLUDED FROM RELITIGATING THE EXISTENCE OF THE JURISDICTIONAL FACTS
UNDERLYING A DIVORCE WHEN BOTH PARTIES HAD MERELY MADE AN APPEARANCE IN
THE ORIGINAL DIVORCE PROCEEDING.  SHERRER V. SHERRER, 334 U.S. 343, AND
COE V. COE, 334 U.S. 378.  THIS WAS SO EVEN IF THE COLLATERAL ATTACK
WERE MADE BY A THIRD PARTY WHO HAD NOT APPEARED IN THE ORIGINAL
PROCEEDING AND WHO HAD INDEPENDENT INTERESTS.  JOHNSON V. MUELBERGER,
340 U.S. 581. 

THE DECISIONS FROM WILLIAMS I THROUGH JOHNSON RESULTED IN A BROAD
EXTENSION OF THE SCOPE OF THE FULL FAITH AND CREDIT CLAUSE.  HADDOCK V.
HADDOCK WAS REJECTED, NOT BECAUSE IT GAVE TOO LITTLE RESPECT TO THE
RIGHTS OF THE ABSENT SPOUSE, BUT RATHER BECAUSE IT GAVE TOO MUCH
RESPECT TO THOSE RIGHTS, AND NOT ENOUGH TO THE RIGHTS OF THE OTHER
SPOUSE AND HIS OR HER DOMICILIARY STATE.  THE INTERESTS OF THE ABSENT
SPOUSES WERE SUBORDINATED TO THE INTERESTS OF THE OTHER SPOUSES AND
THEIR DOMICILE OF DIVORCE IN WILLIAMS I, AND THE INTERESTS OF A STATE
THAT WAS ALLEGEDLY BOTH PRE-DIVORCE AND POST-DIVORCE DOMICILE WERE
SUBORDINATED TO THE INTEREST OF THE TEMPORARY "DOMICILE" OF DIVORCE IN
SHERRER AND COE. 

ONE MIGHT HAVE EXPECTED THAT SINCE THOMPSON V. THOMPSON, SUPRA, WAS
BASED ON HADDOCK V. HADDOCK, IT WOULD HAVE SUFFERED THE SAME FATE.  BUT
NO. THE LAW IS NOT SO LOGICAL.  THE COURT SHRINKS FROM APPLYING
WILLIAMS I TO THOMPSON.  IN FACT, WE ARE NOW TOLD THAT THE VICE OF
THOMPSON V. THOMPSON IS JUST THE OPPOSITE OF THAT OF HADDOCK V.
HADDOCK:  THOMPSON PAID TOO LITTLE RESPECT TO THE RIGHTS OF THE ABSENT
SPOUSE AND TOO MUCH TO THE RIGHTS OF THE OTHER SPOUSE AND HIS
DOMICILE.  AND SO, AS COMPENSATION, THE INTERESTS OF THE ABSENT SPOUSE,
WHICH THE COURT SUBORDINATED SO FAR AS THE BREAKING UP OF THE MARITAL
RELATION WAS CONCERNED IN WILLIAMS I, ARE NOW TO BE ENLARGED, SO FAR AS
ALIMONY IS CONCERNED.  THE REQUIREMENT OF PENNOYER V. NEFF, 95 U.S.
714, THAT THERE MUST BE PERSONAL JURISDICTION IN AN ACTION TO RECOVER A
JUDGMENT FOR PERSONAL SERVICES RENDERED, WAS BEFORE THE COURT IN
HADDOCK, IN THOMPSON, AND IN WILLIAMS I. ALTHOUGH IT WAS FOUND IN ALL
THREE CASES NOT TO BE APPLICABLE TO THE UNIQUE INTERESTS AND FACTORS
PERTAINING TO THE SEVERANCE OF THE MARRIAGE STATUS AND THE INCIDENTAL
DETERMINATION DENYING ALIMONY, IT IS NOW TREATED AS A CONTROLLING
PRECEDENT. 

A NORMAL ACTION FOR DIVORCE COMPREHENDS DISSOLUTION OF THE MARITAL
RELATION AND, INCIDENT THERETO, A PROPERTY ARRANGEMENT BETWEEN THE
PARTIES.  I STAND ON THE WILLIAMS DECISIONS; AND SO I START FROM THE
PROPOSITION THAT FULL FAITH AND CREDIT MUST BE GIVEN TO AN EX PARTE
DIVORCE GRANTED BY A STATE THAT IS THE DOMICILE OF ONE OF THE PARTIES. 
THE ONLY LEGAL QUESTION FOR OUR CONCERN IN THIS CASE IS WHETHER THE
OTHER ASPECT OF, AND INDEED AN INCIDENT TO, A PROCEEDING FOR DIVORCE,
THE PROPERTY ARRANGEMENT, IS SIMILAR ENOUGH TO THE DISSOLUTION OF THE
MARITAL RELATION, WITH RESPECT TO BOTH THE INTERESTS OF THE PARTIES AND
THE NATURE OF WHAT IS ADJUDICATED, THAT CONSTITUTIONALLY IT MAY BE
TREATED ALIKE.    HADDOCK V. HADDOCK AND THOMPSON V. THOMPSON PROCEEDED
ON THE BASIS THAT THEY SHOULD BE TREATED ALIKE.  THE COURT, HOWEVER,
SOLVES ALL WITH THE STATEMENT, "IT HAS LONG BEEN THE CONSTITUTIONAL
RULE THAT A COURT CANNOT ADJUDICATE A PERSONAL CLAIM OR OBLIGATION
UNLESS IT HAS JURISDICTION OVER THE PERSON OF THE DEFENDANT."  THIS IS
AN ARTFUL DISGUISE FOR LABELING THE ACTION WITH THE QUESTION-BEGGING
PHRASE, "IN PERSONAM."  A DOGMATIC, UNANALYZED DISREGARD OF THE
DIFFICULTIES OF A PROBLEM DOES NOT MAKE THE PROBLEM DISAPPEAR. 
STRICTLY SPEAKING, ALL RIGHTS EVENTUALLY ARE "PERSONAL."  FOR EXAMPLE,
A SUCCESSFUL SUIT IN ADMIRALTY AGAINST A SHIP RESULTS OF COURSE NOT IN
LOSS TO THE SHIP BUT TO ITS OWNER.  THE CRUCIAL QUESTION IS:  WHAT IS
THE FAIR WAY TO PROCEED AGAINST THESE INTERESTS?  MAY A STATE DEAL WITH
THE DISSOLUTION OF A MARRIAGE COMPREHENSIVELY, OR MUST IT CHOP UP THE
NORMAL INCIDENTS OF THE CAUSE OF ACTION FOR DIVORCE? 

NO EXPLANATION IS VOUCHSAFED WHY THE DISSOLUTION OF THE MARITAL
RELATION IS NOT SO "PERSONAL" AS TO REQUIRE PERSONAL JURISDICTION OVER
AN ABSENT SPOUSE, WHILE THE DENIAL OF ALIMONY INCIDENT THERETO IS.
CALLING ALIMONY A "PERSONAL CLAIM OR OBLIGATION" SOLVES NOTHING.  I
NOTE THIS CONCERN FOR "PROPERTY RIGHTS," BUT I FAIL TO SEE WHY THE
MARITAL RELATION WHOULD NOT BE WORTHY OF EQUAL PROTECTION, ALSO AS A
"PERSONAL CLAIM OR OBLIGATION."  IT MAY NOT BE TRANSLATABLE INTO
DOLLARS AND CENTS, BUT THAT DOES NOT MAKE IT LESS VALUABLE TO THE
PARTIES.  IT CANNOT BE ASSUMED, BY JUDICIAL NOTICE AS IT WERE, THAT
ABSENT SPOUSES VALUE THEIR ALIMONY RIGHTS MORE HIGHLY THAN THEIR
MARITAL RIGHTS.  FACTUALLY, THEREFORE, BOTH SITUATIONS INVOLVE THE
ADJUDICATION OF VALUABLE RIGHTS OF AN ABSENT SPOUSE, (FN1) AND I SEE NO
REASON TO SPLIT THE CAUSE OF ACTION AND HOLD THAT A DOMICILIARY STATE
CAN EX PARTE TERMINATE THE MARITAL RELATION, BUT CANNOT EX PARTE DENY
ALIMONY.  "DIVISIBLE DIVORCE" IS JUST NAME-CALLING.  (FN2)  I WOULD
THEREFORE HOLD THAT NEVADA HAD JURISDICTION TO MAKE THE DETERMINATION
IT MADE WITH RESPECT TO ALIMONY AND THAT NEW YORK MUST GIVE FULL FAITH
AND CREDIT TO THE WHOLE NEVADA JUDGMENT, NOT JUST TO PART OF IT. 

IT SHOULD ALSO BE NOTED THAT THE COURT'S DECISION, BESIDES TURNING
THE CONSTITUTIONAL LAW OF MARITAL RELATIONS TOPSY-TURVY, HAS CREATED
NUMEROUS PROBLEMS WHOSE SOLUTION IS FAR FROM OBVIOUS.  THE ABSENT
SPOUSE NEED NO LONGER APPEAR IN THE DIVORCING STATE IN ORDER TO BE
PRESENT WHEN AN ADJUDICATION IS MADE.  SHE (OR HE) MAY SUE WHEREVER SHE
CAN SERVE THE OTHER SPOUSE OR ATTACH HIS PROPERTY.  WHAT WILL HAPPEN IN
STATES THAT GRANT ALIMONY ONLY AS INCIDENT TO A DIVORCE?  MOST STATES
DO NOT HAVE STATUTES LIKE THE NEW YORK STATUTE INVOLVED IN THE PRESENT
CASE.  WOULD THIS COURT REQUIRE ANY STATE IN WHICH ONE SPOUSE CATCHES
ANOTHER TO ENTERTAIN A CAUSE OF ACTION FOR ALIMONY?  THIS IS A FAR CRY
FROM WHAT WAS INVOLVED IN HUGHES V. FETTER, 341 U.S. 609.  ALSO, IT IS
NOT EVEN SETTLED WHAT THE RELATION OF A STATE TO AN EX-WIFE AND AN EX
HUSBAND MUST BE FOR THE STATE, AS A MATTER OF DUE PROCESS, TO BE ABLE
TO GRANT SUPPORT ON THE BASIS THAT THE PARTIES WERE ONCE MAN AND WIFE. 

ANOTHER VIEW, AGREEING THAT NEVADA CAN ADJUDICATE ALIMONY EX PARTE
INCIDENT TO ITS GRANTING A DIVORCE EX PARTE, AT LEAST FOR PURPOSES OF
ITS OWN LAW, WOULD THEN HOLD THAT NEW YORK IS NOT COMPELLED TO GIVE
FULL FAITH AND CREDIT TO THE VALID NEVADA JUDGMENT.  "NEW YORK'S LAW
AND POLICY IS," SO THE ARGUMENT RUNS, "THAT THE RIGHT OF A MARRIED
WOMAN DOMICILED IN NEW YORK TO SUPPORT SURVIVES AN EX PARTE DIVORCE,
WHETHER OBTAINED IN NEW YORK OR ELSEWHERE  ...  .  THE INTEREST OF NEW
YORK IN HER DOMICILIARIES SEEMS  ...  TO BE OF SUFFICIENT WEIGHT TO
JUSTIFY ALLOWING HER TO APPLY HER OWN POLICY ON THE QUESTION OF WHAT
EFFECT EX PARTE DIVORCES WILL BE GIVEN AS AGAINST THE SURVIVING SUPPORT
RIGHTS OF HER OWN DOMICILIARIES." 

TO BEGIN WITH, IT CANNOT BE PRETENDED THAT NEW YORK IS NOT
DISCRIMINATING AGAINST ALIMONY ADJUDICATIONS IN ALL OUT-OF-STATE EX
PARTE DIVORCES, FOR A DIVORCE GRANTED TO A HUSBAND IN NEW YORK AGAINST
A WIFE WHO IS NOT SERVED PERSONALLY IN NEW YORK IS NOT EX PARTE IF THE
WIFE IS A NEW YORK DOMICILIARY.  HER DOMICILE PROVIDES A BASIS OF
JURISDICTION THAT WOULD BE SUFFICIENT IN AN ORDINARY NON-MATRIMONIAL
ACTION.  SEE WILLIAMS V. NORTH CAROLINA, I, 317 U.S. 287, 298-299;
MILLIKEN V. MEYER, 311 U.S. 457, 463. 

TO GO TO THE HEART OF THE MATTER, THE FULL FAITH AND CREDIT CLAUSE IS
ITSELF A CONSTITUTIONAL ADJUSTMENT OF THE CONFLICTING INTERESTS OF
STATES, AND WE ARE NOT FREE, BY WEIGHING CONTENDING CLAIMS IN
PARTICULAR CASES, TO MAKE READJUSTMENTS OF THE CONFLICTING INTERESTS AS
IF THE FULL FAITH AND CREDIT CLAUSE DID NOT EXIST.  THE CLAUSE REQUIRES
THAT "FULL FAITH AND CREDIT SHALL BE GIVEN IN EACH STATE TO THE  ...
JUDICIAL PROCEEDINGS OF EVERY OTHER STATE."  SEE ALSO 28 U.S.C.  SEC.
1738.  IT IS TRUE THAT THE COMMANDS OF THE FULL FAITH AND CREDIT CLAUSE
ARE NOT INEXORABLE IN THE SENSE THAT EXCEPTIONAL CIRCUMSTANCES MAY
RELIEVE A STATE FROM GIVING FULL FAITH AND CREDIT TO THE JUDGMENT OF A
SISTER STATE BECAUSE "OBNOXIOUS" TO AN OVERRIDING POLICY OF ITS OWN. 
BUT SUCH INSTANCES "HAVE BEEN FEW AND FAR BETWEEN, APART FROM HADDOCK
V. HADDOCK."  SEE WILLIAMS V. NORTH CAROLINA, I, 317 U.S. 287, 294
295. 

OF COURSE NEW YORK HAS SUBSTANTIAL CONNECTION WITH A DOMICILIARY WHO
HAS BEEN DIVORCED EX PARTE IN NEVADA, BUT THAT PROVIDES NO
JUSTIFICATION FOR ALLOWING IT TO REFUSE TO GIVE FULL FAITH AND CREDIT
TO THAT PART OF THE NEVADA JUDGMENT DENYING ALIMONY.  A STATE DESIRING
TO DENY FULL FAITH AND CREDIT TO THE JUDGMENT OF ANOTHER STATE ALMOST
ALWAYS HAS SUCH A CONNECTION.  WHATEVER THE UNUSUAL CIRCUMSTANCES THAT
MAY JUSTIFY MAKING AN EXCEPTION TO THE REQUIREMENTS OF THE FULL FAITH
AND CREDIT CLAUSE, THIS CASE DOES NOT PRESENT THEM BECAUSE, FOR THE
REASONS I HAVE ALREADY STATED, NO STRONGER STATE POLICY CAN BE URGED IN
THIS CASE THAN WAS OVERRIDDEN IN WILLIAMS I. BLANKET DISCRIMINATION
AGAINST EX PARTE ALIMONY DECREES OF SISTER STATES THEREFORE
SUBORDINATES THE REQUIREMENTS OF THE FULL FAITH AND CREDIT CLAUSE TO
THE POLICY OF NEW YORK. 

TO JUSTIFY THE NEW YORK LAW AS A "MERE SURVIVAL OF A PRE-EXISTING
RIGHT" IS ONLY ANOTHER PROOF THAT "THE WORD 'RIGHT' IS ONE OF THE MOST
DECEPTIVE OF PITFALLS; IT IS SO EASY TO SLIP FROM A QUALIFIED MEANING
IN THE PREMISE TO AN UNQUALIFIED ONE IN THE CONCLUSION."  AMERICAN BANK
& TRUST CO. V. FEDERAL RESERVE BANK, 256 U.S. 350, 358.  THERE CAN BE
NO "RIGHT" UNTIL THE TERMINATION OF THE MARRIAGE, AND THE WHOLE
QUESTION IN THE CASE IS WHICH STATE SHALL BE ABLE TO DETERMINE THE
INCIDENTS OF THE DISSOLUTION OF THE MARRIAGE STATUS.  NOR IS ANALYSIS
FURTHERED BY ANALOGIZING THE "RIGHT" TO ALIMONY TO THE DOWER "RIGHT,"
THENCE SLIDING TO THE CONCLUSION THAT SINCE NEW YORK WOULD NOT HAVE TO
RECOGNIZE A NEVADA DECREE CUTTING OFF DOWER, IT DOES NOT HAVE TO
RECOGNIZE THE NEVADA DECREE CUTTING OFF ALIMONY.  THE DIFFERENCES
BETWEEN A "RIGHT" TO ALIMONY AND A DOWER "RIGHT" ARE SO DECISIVE THAT I
NEED NOT SPELL OUT WHY AN ASSUMED DECISION WITH RESPECT TO DOWER DOES
NOT REACH OUR PROBLEM. 

WE ARE ALSO TOLD THAT "THE INTEREST OF THE WIFE IN NOT BECOMING
SINGLE AND PENNILESS IS GREATER THAN HER INTEREST IN NOT BECOMING
SINGLE."  THIS IS DOUBTLESS A CORRECT STATEMENT OF FACT AND MIGHT
FURNISH A BASIS FOR LEGISLATION OF A KIND NOT AT ISSUE IN THIS CASE,
SINCE THE NEW YORK LAW IS BASED ON ITS RIGHT TO DISREGARD ALL EX PARTE
ALIMONY DECREES AND NOT ON AN INTEREST IT MAY HAVE IN THE INDIGENT
CONDITION OF FORMER WIVES.  (FN3) 

FOR ME, THE RIGOROUS COMMANDS OF THE FULL FAITH AND CREDIT CLAUSE ARE
DETERMINATIVE.  I CANNOT SAY THAT THE NEVADA JUDGMENT DENYING ALIMONY
IS MORE "OBNOXIOUS" TO NEW YORK POLICY (AS EXPRESSED IN SEC. 1170-B OF
ITS CIVIL PRACTICE ACT) THAN ITS JUDGMENT OF DIVORCE.  SINCE NEW YORK
IS REQUIRED TO GIVE FULL FAITH AND CREDIT TO THE ONE, IT IS TO THE
OTHER. 

FN1  CUSTODY OVER CHILDREN PRESENTS AN ENTIRELY DIFFERENT PROBLEM. 
SEE MAY V. ANDERSON, 345 U.S. 528.  THE INTERESTS OF INDEPENDENT HUMAN
BEINGS, THE CHILDREN, ARE INVOLVED.  ALSO, INSOFAR AS THE SPOUSES'
INTERESTS ARE CONCERNED, THE DIVORCE MAY TERMINATE THEIR RELATIONS WITH
EACH OTHER AS HUSBAND AND WIFE, BUT IT CANNOT TERMINATE THEIR RELATION
TO THEIR CHILDREN.  THEY ARE STILL PARENTS. 

FN2  "THE DECEPTIVE APPEAL OF THE PHRASE 'DIVISIBLE DIVORCE' SHOULD
NOT BE PERMITTED TO OBSCURE THE BASIC CONCEPTS INVOLVED.  A FINDING OF
DIVISIBILITY MAY BE APPROPRIATE WHERE, AS IN ESTIN, THE PARTICULAR
RIGHT AT ISSUE IS A DISTINCT PROPERTY RIGHT, EMBODIED IN A PREVIOUSLY
GRANTED JUDGMENT, WHICH IS NO LONGER DEPENDENT, FOR ITS RECOGNITION OR
ENFORCEMENT, UPON THE MARITAL RELATIONSHIP, OR WHERE, AS IN ARMSTRONG,
THE COURT RENDERING THE DIVORCE HAS ITSELF SEVERED THE ISSUE OF SUPPORT
AND LEFT IT SUBJECT TO SEPARATE ADJUDICATION IN THE FUTURE.  THE
SITUATION IS, HOWEVER, DECIDEDLY DIFFERENT WHERE, AS IN THE CASE BEFORE
US, THE CLAIM ASSERTED DEPENDS FOR ITS VERY EXISTENCE ON THE
CONTINUANCE OF THE MARITAL STATUS AND THAT STATUS AND ITS INCIDENTS
HAVE BOTH BEEN TERMINATED BY A JURISDICTIONALLY VALID JUDGMENT OF
DIVORCE."  JUDGE FULD, DISSENTING IN THIS CASE IN THE NEW YORK COURT OF
APPEALS, 1 N.Y.2D 342, 356-357, 135 N.E.2D 553, 561.  I WOULD ADD THAT
THE CONCEPT OF "DIVISIBLE DIVORCE" IS A MISNOMER.  THE DIVORCE IS NOT
DIVISIBLE.  IT IS THE CAUSE OF ACTION FOR TERMINATING THE MARITAL
RELATION AND MAKING A PROPERTY ARRANGEMENT THAT IS DIVIDED. 

FN3  WE ARE NOT TOLD WHAT A THIRD STATE IS TO DO IF SUIT IS BROUGHT
THERE.  DOES NEW YORK OR NEVADA LAW CONTROL?  SINCE, UNDER THIS VIEW,
THE HUSBAND'S EX PARTE JUDGMENT DENYING ALIMONY TO THE WIFE IS A VALID
ONE, AT LEAST IN NEVADA, I WOULD SUPPOSE THAT THE WIFE COULD GET A
SUPPORT JUDGMENT EX PARTE IN NEW YORK.  THEN, THERE WOULD BE NOT MERELY
A PROBLEM OF CHOICE OF LAW IN THE THIRD STATE, WHICH HAS NO DOMICILIARY
CONNECTION WITH EITHER PARTY, BUT RATHER A QUESTION OF WHICH JUDGMENT
IS ENTITLED TO FULL FAITH AND CREDIT IN THE THIRD STATE. 

MR. JUSTICE HARLAN, DISSENTING. 

THE COURT HOLDS TODAY, AS I UNDERSTAND ITS OPINION, THAT NEVADA,
LACKING PERSONAL JURISDICTION OVER MRS. VANDERBILT, HAD NO POWER TO
ADJUDICATE THE QUESTION OF SUPPORT, AND THAT ANY DIVORCE DECREE
PURPORTING SO TO DO IS TO THAT EXTENT WHOLLY VOID - PRESUMABLY IN
NEVADA AS WELL AS IN NEW YORK - UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, PURSUANT TO THE DOCTRINE OF PENNOYER V. NEFF, 95
U.S. 714. 

I CANNOT AGREE WITH SUCH A HOLDING.  IN THE FIRST PLACE, AS I SEE
THIS CASE, THERE IS NO NECESSITY TO PASS ON THIS QUESTION AT ALL.  OUR
PROBLEM SHOULD BE, INITIALLY AT LEAST, NOT WHETHER THIS DECREE, INSOFAR
AS IT AFFECTS PROPERTY, IS "VOID" FOR LACK OF DUE PROCESS, BUT WHETHER
IT BINDS NEW YORK UNDER THE FULL FAITH AND CREDIT CLAUSE.  IN OTHER
WORDS, WE NEED NOT, IN THE FIRST INSTANCE, DECIDE WHAT THE DUE PROCESS
CLAUSE FORBIDS NEVADA TO DO, BUT MERELY WHAT THE FULL FAITH AND CREDIT
CLAUSE COMPELS NEW YORK TO DO.  ONE OF THE WISEST OF OUR CONSTITUTIONAL
COMMENTATORS HAS WARNED US TO BEWARE THE "CONSTRICTING
NECESSITARIANISM" OF DEEMING THE TWO QUESTIONS TO BE ONE AND THE SAME: 

"IN A PROBLEM SO FRAUGHT WITH INFELICITIES WHATEVER MEDIATION IS
DEVISED, THERE IS WISDOM IN CONFINING PRONOUNCEMENTS CLOSELY TO WHAT IS
IMPERATIVE IN THE PARTICULAR CASE.  IT IS NOT LOGICALLY NECESSARY TO
DENY NEVADA'S MASTERY WITHIN HER OWN BOUNDARIES IN ORDER TO DENY HER
POWER OF PROJECTION BEYOND THEM.  FREEDOM OF HOME MANUFACTURE AND
CONSUMPTION DOES NOT NECESSARILY ENTAIL FREEDOM OF EXPORT.  ONLY IF IT
IS INEXORABLE THAT WHAT IS MEANT BY 'JURISDICTION' MUST BE EITHER
WHOLLY ABSENT OR WHOLLY UNLIMITED NEED FRAILTY IN SISTER STATES BE
CONDITIONED ON TOTAL IMPOTENCE AT HOME."  T.R. POWELL, AND REPENT AT
LEISURE, 58 HARV.  L. REV. 930, 936. 

WERE WE COMPELLED TO REACH THE QUESTION, I WOULD BY NO MEANS BE READY
TO HOLD THAT NEVADA, IN CONNECTION WITH A VALID DIVORCE PROCEEDING, HAD
NO POWER TO ADJUDICATE AN INCIDENT SO INEXTRICABLY KNIT TO THE MARRIAGE
STATUS AS IS SUPPORT.  I WOULD AGREE WITH JUDGE FULD, DISSENTING BELOW,
THAT THE DENIAL OF POWER TO NEVADA RESTS ON THE "ERRONEOUS PREMISE THAT
A MERE INCIDENT OF THE MARITAL STATUS, WHICH 'IN ITSELF FURNISHES NO
FOUNDATION FOR A CAUSE OF ACTION'  ...  IS THE EQUIVALENT OF AN
INDEPENDENT RIGHT."  (FN1)  NOR DOES IT HELP TO LABEL MRS. VANDERBILT'S
CLAIM TO SUPPORT A "PROPERTY" RIGHT AND THEREFORE AN IN PERSONAM,
RATHER THAN AN IN REM, MATTER.  IF IT IS DUE PROCESS FOR NEVADA TO
ADJUDICATE THE MARRIAGE STATUS OF A DOMICILIARY WITHOUT PERSONAL
SERVICE OVER THE ABSENT SPOUSE (AS IT CLEARLY IS, SEE WILLIAMS V. NORTH
CAROLINA, I, 317 U.S. 287), I SEE NO REASON WHY NEVADA CANNOT, AT LEAST
FOR THE PURPOSES OF HER OWN LAW, ALSO ADJUDICATE THE INCIDENTS OF THAT
STATUS. 

I DO NOT THINK, HOWEVER, THAT THIS FORECLOSES THE ISSUE BEFORE US.  I
REVERT, THEREFORE, TO WHAT, FOR ME, IS THE REAL QUESTION IN THIS CASE:
MUST NEW YORK RESPECT NEVADA'S DECREE INSOFAR AS IT PURPORTS TO
ADJUDICATE THE QUESTION OF SUPPORT?  THE ANSWER TO THIS QUESTION, I
THINK, TURNS SQUARELY ON AN ISSUE OF NEW YORK LAW, NAMELY, WHETHER MRS.
VANDERBILT WAS DOMICILED IN NEW YORK AT THE TIME OF THE DIVORCE.    IF
MRS. VANDERBILT WAS A NEW YORK DOMICILIARY AT THE TIME OF THE DIVORCE,
THE SITUATION WOULD SEEM TO ME TO BE AS FOLLOWS: NEW YORK'S LAW AND
POLICY IS THAT THE RIGHT OF A MARRIED WOMAN DOMICILED IN NEW YORK TO
SUPPORT SURVIVES AN EX PARTE DIVORCE, WHETHER OBTAINED IN NEW YORK OR
ELSEWHERE.  THE ONLY QUESTION UNDER THE FULL FAITH AND CREDIT CLAUSE IS
WHETHER NEW YORK IS COMPELLED TO DISREGARD HER OWN LAW AND POLICY IN
FAVOR OF THE LAW OF NEVADA ON THE QUESTION OF THE SURVIVAL OF SUPPORT
RIGHTS SUBSEQUENT TO AN EX PARTE DIVORCE.  MY ANSWER TO THIS QUESTION
IS "NO."  THE INTEREST OF NEW YORK IN HER DOMICILIARIES SEEMS TO ME TO
BE OF SUFFICIENT WEIGHT TO JUSTIFY ALLOWING HER TO APPLY HER OWN POLICY
ON THE QUESTION OF WHAT EFFECT EX PARTE DIVORCES WILL BE GIVEN AS
AGAINST THE SURVIVING SUPPORT RIGHTS OF HER OWN DOMICILIARIES.  IN MY
VIEW IT DOES NOT FOLLOW AUTOMATICALLY THAT MERELY BECAUSE NEW YORK MUST
RECOGNIZE THE VALIDITY OF NEVADA'S EX PARTE DIVORCE, SHE MUST ALSO
RECOGNIZE THE EFFECT NEVADA WOULD GIVE TO THAT DIVORCE IN CONNECTION
WITH THE WIFE'S RIGHTS TO SUPPORT.  THE TWO QUESTIONS ARE GOVERNED BY
DIFFERENT CONSIDERATIONS.  I QUOTE AGAIN FROM PROFESSOR POWELL: 

"THE 'IRRECONCILABLE CONFLICT' BETWEEN TWO STATES ON THE QUESTION OF
MARITAL STATUS IS NOT SO INSUPERABLE IN DEALING WITH MATTERS OF MONEY. 
IT IS LESS IRKSOME TO SUPPORT TWO WIVES THAN TO GO TO JAIL BECAUSE OF
THEM.  THOUGH WITH RESPECT TO STATUS ONE STATE OR THE OTHER MUST YIELD,
WITH RESPECT TO MAINTENANCE SUCH YIELDING IS NOT NECESSARY. 

"  ...  'THE PROBLEM UNDER THE FULL FAITH AND CREDIT CLAUSE IS TO
ACCOMMODATE AS FULLY AS POSSIBLE THE CONFLICTING INTERESTS OF THE TWO
STATES.'  THE SOLUTION IS A MATTER OF JUDGMENT IN EACH CASE, JUDGMENT
BASED NOT ONLY ON THE PARTICULARITIES OF THE INDIVIDUAL CASE OR TYPE OF
CASE BUT UPON THE DESIRABILITY OF AS MUCH GENERALITY AND PREDICTABILITY
AS IS CONSISTENT WITH A FAIR DEGREE OF CONTROL BY A STATE OVER THE
CONDUCT AND THE RELATIONSHIPS OF PERSONS WHO IN EVERY SUBSTANTIAL SENSE
ARE ITS OWN HOME FOLKS  ...  . 

     *         *         *         *         * 

"IT IS ARGUED THAT THE STATE WHERE THE STAY-BEHIND SPOUSE HAS LONG
BEEN DOMICILED HAS AN INTEREST IN MAKING A QUONDAM HUSBAND CONTINUE A
PRIOR OBLIGATION TO SUPPORT HER, AND THAT THIS INTEREST IS STRONGER AND
MORE MERITORIOUS THAN ANY POSSIBLE OPPOSING INTEREST TO PREVENT IT THAT
CAN BE ACCREDITED TO THE STATE WHICH GAVE HIM A DIVORCE AFTER BEING
BLINDLY SATISFIED THAT HE INTENDED AN INDEFINITE STAY THERE.  THIS
SEEMS SO SENSIBLE THAT IT SHOULD BE OBVIOUS TO ANY ONE WHO HAD NEVER
BECOME CONFUSED BY STUDYING LAW."  POWELL, SUPRA, AT 952, 954-955. 

IN EFFECT, THE SITUATION BEFORE US SEEMS TO ME TO BE ANALOGOUS TO
DOWER.  IF NEW YORK LAW SHOULD PROVIDE THAT THE DOWER RIGHTS OF HER
DOMICILIARIES SURVIVE EX PARTE DIVORCES, I WOULD SUPPOSE THAT NEW YORK
COULD GIVE EFFECT TO THAT POLICY IN SPITE OF AN EX PARTE NEVADA DIVORCE
WHICH PURPORTED TO CUT OFF THE RIGHT TO DOWER.  THE PROBLEM IN EACH
CASE IS TO WEIGH THE POLICY OF GIVNG AN EX PARTE JUDGMENT UNIFORM
EFFECT THROUGHOUT THE NATION, AGAINST THE INTEREST OF A PARTICULAR
STATE IN A PARTICULAR LOCAL POLICY.  WHERE STATUS IS CONCERNED, THIS
COURT HELD THAT THE INTEREST IN CERTAINTY AS TO WHETHER ONE IS MARRIED
OR SINGLE OUTWEIGHS THE INTEREST OF HOME STATES IN THE MARITAL STATUS
OF THEIR DOMICILIARIES, SO THAT NORTH CAROLINA WAS FORCED TO SWALLOW
NEVADA'S VIEWS AS TO WHAT IS SUFFICIENT CAUSE FOR DIVORCE EVEN THOUGH
THE NORTH CAROLINA WIFE HAD NOT APPEARED IN THE NEVADA PROCEEDING. 
WILLIAMS, I, SUPRA.  BUT I SEE NO REASON WHY WE SHOULD EXTEND THAT, FOR
ME, ALREADY SOMEWHAT UNPALATABLE MEDIATION TO THE LIMITS OF ITS LOGIC
IN ORDER TO HOLD THAT NEVADA'S VIEWS AS TO SUPPORT AS WELL AS DIVORCE
MUST BE FORCED ONTO OTHER STATES, AND THAT NEVADA CAN NOT ONLY COMPEL
WIVES DOMICILED ELSEWHERE TO BECOME SINGLE AGAINST THEIR WILL, BUT TO
BE PAUPERIZED AGAINST THEIR WILL AS WELL.  OF COURSE, THE REASON FOR
THE DISTINCTION IS NOT THAT THE WIFE'S RIGHT TO SUPPORT IS "WORTH" MORE
THAN HER INTEREST IN REMAINING A WIFE.  BUT THE INTEREST OF THE WIFE IN
NOT BECOMING SINGLE AND PENNILESS IS GREATER THAN HER INTEREST IN NOT
BECOMING SINGLE.  IN OTHER WORDS, MERELY BECAUSE IT IS HELD THAT THE
WIFE MUST BE DEPRIVED OF ONE BENEFIT EX PARTE, IN THE INTEREST OF
NATIONAL UNIFORMITY, DOES NOT COMPEL US TO HOLD THAT THE OTHER BENEFIT
MUST VANISH WITH IT, WHERE THE INTEREST IN NATIONAL UNIFORMITY IS NOT
AS COMPELLING.  (FN2) 

IN DECIDING THIS CASE WE MUST ALWAYS REMEMBER THAT THE REASON WHY THE
NEVADA EX PARTE DIVORCE HAS THE EFFECT OF A JUDGMENT IN NEW YORK EVEN
ON THE QUESTION OF STATUS IS BECAUSE THIS COURT FOUND, IN MEASURING THE
COMPETING INTERESTS, THAT UNIFORMITY SHOULD PREVAIL.  IT WILL NOT DO,
THEREFORE, TO SAY THAT ONCE THAT IS DONE THE COURT IS FORECLOSED FROM
WEIGHING COMPETING INTERESTS IN DETERMINING THE EFFECT OF THE NEVADA
ADJUDICATION AS TO QUESTIONS OTHER THAN STATUS.  ONE CANNOT REST ON THE
INEXORABILITY THAT THE NEVADA DECREE IS A "JUDGMENT" AND ELIMINATE THE
FACT THAT IT WAS HELD TO BE A JUDGMENT OUTSIDE NEVADA AS TO STATUS FOR
REASONS WHICH DO NOT NECESSARILY APPLY TO THE QUESTION OF SUPPORT, ANY
MORE THAN ONE CAN SOLVE THE PROBLEM BY LABELING SUPPORT AS A "PROPERTY"
RIGHT.  (FN3) 

QUITE A DIFFERENT CASE IS PRESENTED, IT SEEMS TO ME, WHERE A WIFE
BECOMES A DOMICILIARY OF NEW YORK AFTER THE EX PARTE DIVORCE AND IS
THEN GRANTED SUPPORT.  IN SUCH A CASE NEW YORK COULD NOT PRETEND TO BE
ASSURING THE WIFE THE MERE SURVIVAL OF A PRE-EXISTING RIGHT, BECAUSE
THE WIFE COULD HAVE HAD NO PRE-DIVORCE RIGHTS IN NEW YORK AT ALL.  NEW
YORK WOULD MERELY BE GRANTING THE WIFE A MARITAL RIGHT IN THE TEETH OF
A VALID NEVADA ADJUDICATION THAT THERE IS NO MARRIAGE.  AND, OF COURSE,
AT THE TIME OF THE DIVORCE NEW YORK WOULD HAVE HAD NO INTEREST IN THE
SITUATION OF ANY KIND.   IN SUCH A CASE, THEREFORE, IT SEEMS TO ME THAT
THE FULL FAITH AND CREDIT CLAUSE WOULD REQUIRE NEW YORK TO RESPECT THE
NEVADA JUDGMENT AS TO SUPPORT RIGHTS.  FURTHERMORE, EVEN ASIDE FROM THE
JUDGMENT, AS A MATTER OF CHOICE OF LAW I SHOULD THINK NEW YORK WOULD BE
FORCED TO LOOK TO THE LAW OF A STATE WHICH HAD A SUBSTANTIAL CONTACT
WITH THESE PARTIES AT THE TIME OF THE DIVORCE IN DETERMINING THE EFFECT
TO BE GIVEN TO THE DIVORCE DECREE.  IT SEEMS TO ME UNFORTUNATE THAT
THIS COURT SHOULD PERMIT SPOUSES DIVORCED BY VALID DECREES TO COMB THE
COUNTRY, AFTER THE DIVORCE, IN SEARCH OF ANY STATE WHERE THE DIVORCING
SPOUSE HAS PROPERTY AND WHICH HAS FAVORABLE SUPPORT LAWS, IN ORDER
THERE TO OBTAIN ALIMONY.  I WOULD THEREFORE BY NO MEANS HOLD THE NEVADA
ADJUDICATION "VOID" AND THEREFORE OF NO EFFECT IN ANY STATE.  (FN4) 

THUS DECISION HERE, AS I SEE IT, TURNS ON THE DOMICILE OF MRS.
VANDERBILT AT THE TIME OF THE DIVORCE.  ON THIS QUESTION I AM LEFT IN
SOME DOUBT.  SECTION 1165-A OF THE NEW YORK CIVIL PRACTICE ACT MAKES
ONE YEAR'S RESIDENCE NECESSARY TO SUITS FOR SUPPORT.  THIS IS AMENABLE
TO THE INTERPRETATION THAT NEW YORK WOULD NOT RECOGNIZE MRS. VANDERBILT
AS DOMICILED IN THAT STATE UNTIL THE LAPSE OF A YEAR, THAT IS, AFTER
THE DECREE OF DIVORCE HERE INVOLVED.  SEE DE MELI V. DE MELI, 120 N.Y.
485, 24 N.E. 996.  ON THE OTHER HAND, THE OPINION BELOW INTIMATES THAT
THE ONE-YEAR RESIDENCY CAN BE REGARDED AS MERELY A PROCEDURAL
PREREQUISITE TO FILING SUIT UNDER SEC. 1170-B, AND DOES NOT AFFECT MRS.
VANDERBILT'S STATUS AS A DOMICILIARY OF NEW YORK AB INITIO.  (FN5)  IN
VIEW OF THIS UNCERTAINTY IN THE STATE LAW, I WOULD REMAND TO THE STATE
COURT FOR RECONSIDERATION IN LIGHT OF THE ABOVE-STATED PRINCIPLES. 

FN1  1 N.Y.2D 342, 357, 135 N.E.2D 553, 561. 

FN2  "IT IS EASIER TO HAVE A FLAT RULE THAN TO MAKE DISTINCTIONS
BASED ON JUDGMENT.  YET, FROM THE STANDPOINT OF PARTITIONING POWER
AMONG THE SEVERAL STATES, THERE MAY WELL BE WISDOM IN HAVING A GAP
BETWEEN WHAT DUE PROCESS WILL NOT FORBID AND WHAT FULL FAITH AND CREDIT
WILL NOT REQUIRE.  CERTAINLY IN SUITS OVER PROPERTY AND MONEY THERE MAY
BE GROUNDS THAT ARE THOUGHT GOOD ENOUGH TO JUSTIFY A STATE IN EXERTING
ITS POWER SO FAR AS IT RELIES WHOLLY ON ITS OWN STRENGTH AND YET NOT SO
GOOD THAT OTHER STATES SHOULD BE BOUND TO LEND A HAND."  POWELL, SUPRA,
AT 936; AND SEE ID., N. 14. 

FN3  FOR THE MOST COMPENDIOUS EXPOSITION OF THE MANY SITUATIONS WHERE
THIS COURT HAS HELD THAT THE FULL FAITH AND CREDIT CLAUSE DOES NOT
DEMAND AUTOMATIC RESPECT IN A SISTER STATE FOR A JUDGMENT VALID IN THE
STATE WHERE RENDERED, SEE THE DISSENT OF MR. JUSTICE STONE AND MR.
JUSTICE CARDOZO IN YARBOROUGH V. YARBOROUGH, 290 U.S. 202, 213.  THERE
CAN HARDLY BE DISPUTE OVER THE PROPOSITION THAT "IN THE ASSERTION OF
RIGHTS, DEFINED BY A JUDGMENT OF ONE STATE, WITHIN THE TERRITORY OF
ANOTHER, THERE IS OFTEN AN INESCAPABLE CONFLICT OF INTEREST OF THE TWO
STATES, AND THERE COMES A POINT BEYOND WHICH THE IMPOSITION OF THE WILL
OF ONE STATE BEYOND ITS OWN BORDERS INVOLVES A FORBIDDEN INFRINGEMENT
OF SOME LEGITIMATE DOMESTIC INTEREST OF THE OTHER.  THAT POINT MAY VARY
WITH THE CIRCUMSTANCES OF THE CASE; AND IN THE ABSENCE OF PROVISIONS
MORE SPECIFIC THAN THE GENERAL TERMS OF THE CONGRESSIONAL ENACTMENT
THIS COURT MUST DETERMINE FOR ITSELF THE EXTENT TO WHICH ONE STATE MAY
QUALIFY OR DENY RIGHTS CLAIMED UNDER PROCEEDINGS OR RECORDS OF OTHER
STATES."  ID., AT 215. 

FN4 SEE MORRIS, DIVISIBLE DIVORCE, 64 HARV. L. REV. 1287. 

FN5 I DRAW THAT IMPLICATION FROM THE FOLLOWING PASSAGE IN THE OPINION
OF THE COURT OF APPEALS: "BUT WHEN THE HUSBAND, ABANDONING HIS WIFE,
LEFT THEIR CALIFORNIA DOMICILE TO ESTABLISH A NEVADA DOMICILE FOR HIS
OWN PURPOSES, THE ABANDONED WIFE HAD A RIGHT TO SET UP A NEW YORK
DOMICILE FOR HERSELF AND BRING THE MATRIMONIAL DOMICILE TO NEW YORK
WITH HER  ...  .  THAT RIGHT SHE EXERCISED IN THIS INSTANCE BEFORE THE
NEVADA JUDGMENT WAS ENTERED AND SHE SATISFIED NEW YORK'S RESIDENCE
REQUIREMENTS BEFORE SUING FOR A SEPARATION  ...  .  WE NEED NOT DECIDE
WHETHER SHE WOULD HAVE THE SAME RIGHT TO COME INTO NEW YORK, EVEN AFTER
A FOREIGN-STATE DIVORCE, TO TAKE ADVANTAGE OF SECTION 1170-B."  1
N.Y.2D, AT 351, 135 N.E.2D, AT 558. 
..END :











KINGSLEY BOOKS, INC. V. BROWN 354 U.S. 436 


NO. 107.  ARGUED APRIL 22, 1957.  - DECIDED JUNE 24, 1957.  - 1 N.Y.2D
177, 134 N.E.2D 461, AFFIRMED. 


IN A PROCEEDING UNDER SEC. 22-A OF THE NEW YORK CODE OF CRIMINAL
PROCEDURE, A STATE COURT, SITTING IN EQUITY, FOUND THAT CERTAIN
BOOKLETS DISPLAYED FOR SALE BY APPELLANTS WERE CLEARLY OBSCENE, AND IT
ENJOINED THEIR FURTHER DISTRIBUTION AND ORDERED THEIR DESTRUCTION. 
HELD:  RESORT TO THIS REMEDY BY THE STATE WAS NOT VIOLATIVE OF THE
FREEDOM OF SPEECH AND PRESS PROTECTED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT FROM ENCROACHMENT BY THE STATES.  PP. 437-445. 

(A)  A STATE COULD CONSTITUTIONALLY CONVICT APPELLANTS FOR KEEPING
FOR SALE BOOKLETS FOUND TO BE OBSCENE.  ALBERTS V. CALIFORNIA, POST, P.
476.  P. 440. 

(B)  NOTHING IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
RESTRICTS A STATE TO THE CRIMINAL PROCESS IN SEEKING TO PROTECT ITS
PEOPLE FROM THE DISSEMINATION OF PORNOGRAPHY.  P. 441. 

(C)  THE INJUNCTION HERE SUSTAINED NO MORE AMOUNTS TO A "PRIOR
RESTRAINT" ON FREEDOM OF SPEECH OR PRESS THAN DID THE CRIMINAL
PROSECUTION IN ALBERTS V. CALIFORNIA, SUPRA, WHERE THE DEFENDANT WAS
FINED, SENTENCED TO IMPRISONMENT, AND PUT ON PROBATION FOR TWO YEARS ON
CONDITION THAT HE NOT VIOLATE THE OBSCENITY STATUTE.  PP. 441-444. 

(D)  THE DUE PROCESS CLAUSE DOES NOT SUBJECT THE STATES TO THE
NECESSITY OF HAVING TRIALS BY JURY IN MISDEMEANOR PROSECUTIONS, AND THE
PROCEDURE PRESCRIBED BY SEC. 22-A OF THE NEW YORK STATUTE FOR
DETERMINATION WHETHER A PUBLICATION IS OBSCENE DOES NOT DIFFER IN
ESSENTIAL PROCEDURAL SAFEGUARDS FROM THAT PROVIDED UNDER MANY STATE
STATUTES MAKING THE DISTRIBUTION OF OBSCENE PUBLICATIONS A
MISDEMEANOR.  PP. 443-444. 

(E)  THE PROVISION IN SEC. 22-A FOR THE SEIZURE AND DESTRUCTION OF
INSTRUMENTS OF ASCERTAINED WRONGDOING IS A RESORT TO A LEGAL REMEDY
LONG SANCTIONED IN ANGLO-AMERICAN LAW.  P. 444. 

(F)  NEAR V. MINNESOTA, 283 U.S. 697, DISTINGUISHED.  P. 445. 

KINGSLEY BOOKS, INC., ET AL. V. BROWN, CORPORATION COUNSEL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING UNDER SEC. 22-A OF THE NEW YORK CODE OF CRIMINAL
PROCEDURE (L. 1941, C. 925), AS AMENDED IN 1954 (L. 1954, C. 702). 
THIS SECTION SUPPLEMENTS THE EXISTING CONVENTIONAL CRIMINAL PROVISION
DEALING WITH PORNOGRAPHY BY AUTHORIZING THE CHIEF EXECUTIVE, OR LEGAL
OFFICER, OF A MUNICIPALITY TO INVOKE A "LIMITED INJUNCTIVE REMEDY,"
UNDER CLOSELY DEFINED PROCEDURAL SAFEGUARDS, AGAINST THE SALE AND
DISTRIBUTION OF WRITTEN AND PRINTED MATTER FOUND AFTER DUE TRIAL TO BE
OBSCENE, AND TO OBTAIN AN ORDER FOR THE SEIZURE, IN DEFAULT OF
SURRENDER, OF THE CONDEMNED PUBLICATIONS.  (FN1) 

A COMPLAINT DATED SEPTEMBER 10, 1954, CHARGED APPELLANTS WITH
DISPLAYING FOR SALE PAPER-COVERED OBSCENE BOOKLETS, FOURTEEN OF WHICH
WERE ANNEXED, UNDER THE GENERAL TITLE OF "NIGHTS OF HORROR."  THE
COMPLAINT PRAYED THAT APPELLANTS BE ENJOINED FROM FURTHER DISTRIBUTION
OF THE BOOKLETS, THAT THEY BE REQUIRED TO SURRENDER TO THE SHERIFF FOR
DESTRUCTION ALL COPIES IN THEIR POSSESSION, AND, UPON FAILURE TO DO SO,
THAT THE SHERIFF BE COMMANDED TO SEIZE AND DESTROY THOSE COPIES.  THE
SAME DAY THE APPELLANTS WERE ORDERED TO SHOW CAUSE WITHIN FOUR DAYS WHY
THEY SHOULD NOT BE ENJOINED PENDENTE LITE FROM DISTRIBUTING THE
BOOKLETS.  APPELLANTS CONSENTED TO THE GRANTING OF AN INJUNCTION
PENDENTE LITE AND DID NOT BRING THE MATTER TO ISSUE PROMPTLY, AS WAS
THEIR RIGHT UNDER SUBDIVISION 2 OF THE CHALLENGED SECTION, WHICH
PROVIDES THAT THE PERSONS SOUGHT TO BE ENJOINED "SHALL BE ENTITLED TO A
TRIAL OF THE ISSUES WITHIN ONE DAY AFTER JOINDER OF ISSUE AND A
DECISION SHALL BE RENDERED BY THE COURT WITHIN TWO DAYS OF THE
CONCLUSION OF THE TRIAL."  AFTER THE CASE CAME TO TRIAL, THE JUDGE,
SITTING IN EQUITY, FOUND THAT THE BOOKLETS ANNEXED TO THE COMPLAINT AND
INTRODUCED IN EVIDENCE WERE CLEARLY OBSCENE - WERE "DIRT FOR DIRT'S
SAKE"; HE ENJOINED THEIR FURTHER DISTRIBUTION AND ORDERED THEIR
DESTRUCTION.  HE REFUSED TO ENJOIN "THE SALE AND DISTRIBUTION OF LATER
ISSUES" ON THE GROUND THAT "TO RULE AGAINST A VOLUME NOT OFFERED IN
EVIDENCE WOULD  ...  IMPOSE AN UNREASONABLE PRIOR RESTRAINT UPON
FREEDOM OF THE PRESS."  208 MISC. 150, 167, 142 N.Y.S.2D 735, 750. 

NOT CHALLENGING THE CONSTRUCTION OF THE STATUTE OR THE FINDING OF
OBSCENITY, APPELLANTS TOOK A DIRECT APPEAL TO THE NEW YORK COURT OF
APPEALS, A PROCEEDING IN WHICH THE CONSTITUTIONALITY OF THE STATUTE WAS
THE SOLE QUESTION OPEN TO THEM.  THAT COURT (ONE JUDGE NOT SITTING)
FOUND NO CONSTITUTIONAL INFIRMITY:  THREE JUDGES SUPPORTED THE
UNANIMOUS CONCLUSION BY DETAILED DISCUSSION, THE OTHER THREE DEEMED A
BRIEF DISPOSITION JUSTIFIED BY "AMPLE AUTHORITY."  1 N.Y.2D 177, 189,
134 N.E.2D 461, 468.  A CLAIM UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT MADE THROUGHOUT THE STATE LITIGATION BROUGHT THE
CASE HERE ON APPEAL.  352 U.S. 962. 

NEITHER IN THE NEW YORK COURT OF APPEALS, NOR HERE, DID APPELLANTS
ASSAIL THE LEGISLATION INSOFAR AS IT OUTLAWS OBSCENITY.  THE CLAIM THEY
MAKE LIES WITHIN A VERY NARROW COMPASS.  THEIR ATTACK IS UPON THE POWER
OF NEW YORK TO EMPLOY THE REMEDIAL SCHEME OF SEC. 22-A.  AUTHORIZATION
OF AN INJUNCTION PENDENTE LITE, AS PART OF THIS SCHEME, DURING THE
PERIOD WITHIN WHICH THE ISSUE OF OBSCENITY MUST BE PROMPTLY TRIED AND
ADJUDICATED IN AN ADVERSARY PROCEEDING FOR WHICH "ADEQUATE NOTICE,
JUDICIAL HEARING, AND FAIR DETERMINATION" ARE ASSURED, 208 MISC. 150,
164, 142 N.Y.S.2D 735, 747, IS A SAFEGUARD AGAINST FRUSTRATION OF THE
PUBLIC INTEREST IN EFFECTUATING JUDICIAL CONDEMNATION OF OBSCENE
MATTER.  IT IS A BRAKE ON THE TEMPTATION TO EXPLOIT A FILTHY BUSINESS
OFFERED BY THE LIMITED HAZARDS OF PIECEMEAL PROSECUTIONS, SALE BY SALE,
OF A PUBLICATION ALREADY CONDEMNED AS OBSCENE.  NEW YORK ENACTED THIS
PROCEDURE ON THE BASIS OF STUDY BY A JOINT LEGISLATIVE COMMITTEE. 
RESORT TO THIS INJUNCTIVE REMEDY, IT IS CLAIMED, IS BEYOND THE
CONSTITUTIONAL POWER OF NEW YORK IN THAT IT AMOUNTS TO A PRIOR
CENSORSHIP OF LITERARY PRODUCT AND AS SUCH IS VIOLATIVE OF THAT
"FREEDOM OF THOUGHT, AND SPEECH" WHICH HAS BEEN "WITHDRAWN BY THE
FOURTEENTH AMENDMENT FROM ENCROACHMENT BY THE STATES."  PALKO V.
CONNECTICUT, 302 U.S. 319, 326-327.  RELIANCE IS PARTICULARLY PLACED
UPON NEAR V. MINNESOTA, 283 U.S. 697. 

IN AN UNBROKEN SERIES OF CASES EXTENDING OVER A LONG STRETCH OF THIS
COURT'S HISTORY, IT HAS BEEN ACCEPTED AS A POSTULATE THAT "THE PRIMARY
REQUIREMENTS OF DECENCY MAY BE ENFORCED AGAINST OBSCENE PUBLICATIONS." 
ID., AT 716.  AND SO OUR STARTING POINT IS THAT NEW YORK CAN
CONSTITUTIONALLY CONVICT APPELLANTS OF KEEPING FOR SALE THE BOOKLETS
INCONTESTABLY FOUND TO BE OBSCENE.  ALBERTS V. CALIFORNIA, POST, P.
476, DECIDED THIS DAY.  THE IMMEDIATE PROBLEM THEN IS WHETHER NEW YORK
CAN ADOPT AS AN AUXILIARY MEANS OF DEALING WITH SUCH OBSCENE
MERCHANDISING THE PROCEDURE OF SEC. 22-A. 

WE NEED NOT LINGER OVER THE SUGGESTION THAT SOMETHING CAN BE DRAWN
OUT OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT THAT
RESTRICTS NEW YORK TO THE CRIMINAL PROCESS IN SEEKING TO PROTECT ITS
PEOPLE AGAINST THE DISSEMINATION OF PORNOGRAPHY.  IT IS NOT FOR THIS
COURT THUS TO LIMIT THE STATE IN RESORTING TO VARIOUS WEAPONS IN THE
ARMORY OF THE LAW.  WHETHER PROSCRIBED CONDUCT IS TO BE VISITED BY A
CRIMINAL PROSECUTION OR BY A QUI TAM ACTION OR BY AN INJUNCTION OR BY
SOME OR ALL OF THESE REMEDIES IN COMBINATION, IS A MATTER WITHIN THE
LEGISLATURE'S RANGE OF CHOICE.  SEE TIGNER V. TEXAS, 310 U.S. 141,
148.  IF NEW YORK CHOOSES TO SUBJECT PERSONS WHO DISSEMINATE OBSCENE
"LITERATURE" TO CRIMINAL PROSECUTION AND ALSO TO DEAL WITH SUCH BOOKS
AS DEODANDS OF OLD, OR BOTH, WITH DUE REGARD, OF COURSE, TO APPROPRIATE
OPPORTUNITIES FOR THE TRIAL OF THE UNDERLYING ISSUE, IT IS NOT FOR US
TO GAINSAY ITS SELECTION OF REMEDIES.  JUST AS NEAR V. MINNESOTA,
SUPRA, ONE OF THE LANDMARK OPINIONS IN SHAPING THE CONSTITUTIONAL
PROTECTION OF FREEDOM OF SPEECH AND OF THE PRESS, LEFT NO DOUBTS THAT
"LIBERTY OF SPEECH, AND OF THE PRESS, IS ALSO NOT AN ABSOLUTE RIGHT,"
283 U.S., AT 708, IT LIKEWISE MADE CLEAR THAT "THE PROTECTION EVEN AS
TO PREVIOUS RESTRAINT IS NOT ABSOLUTELY UNLIMITED."  ID., AT 716.  TO
BE SURE, THE LIMITATION IS THE EXCEPTION; IT IS TO BE CLOSELY CONFINED
SO AS TO PRECLUDE WHAT MAY FAIRLY BE DEEMED LICENSING OR CENSORSHIP. 

THE JUDICIAL ANGLE OF VISION IN TESTING THE VALIDITY OF A STATUTE
LIKE SEC. 22-A IS "THE OPERATION AND EFFECT OF THE STATUTE IN
SUBSTANCE."  ID., AT 713.  THE PHRASE "PRIOR RESTRAINT" IS NOT A SELF
WIELDING SWORD.  NOR CAN IT SERVE AS A TALISMANIC TEST.  THE DUTY OF
CLOSER ANALYSIS AND CRITICAL JUDGMENT IN APPLYING THE THOUGHT BEHIND
THE PHRASE HAS THUS BEEN AUTHORITATIVELY PUT BY ONE WHO BRINGS WEIGHTY
LEARNING TO HIS SUPPORT OF CONSTITUTIONALLY PROTECTED LIBERTIES:  "WHAT
IS NEEDED," WRITES PROFESSOR PAUL A. FREUND, "IS A PRAGMATIC ASSESSMENT
OF ITS OPERATION IN THE PARTICULAR CIRCUMSTANCES.  THE GENERALIZATION
THAT PRIOR RESTRAINT IS PARTICULARLY OBNOXIOUS IN CIVIL LIBERTIES CASES
MUST YIELD TO MORE PARTICULARISTIC ANALYSIS."  THE SUPREME COURT AND
CIVIL LIBERTIES, 4 VAND.  L. REV. 533, 539. 

WHEREIN DOES SEC. 22-A DIFFER IN ITS EFFECTIVE OPERATION FROM THE
TYPE OF STATUTE UPHELD IN ALBERTS?  SECTION 311 OF CALIFORNIA'S PENAL
CODE PROVIDES THAT "EVERY PERSON WHO WILFULLY AND LEWDLY  ...  KEEPS
FOR SALE  ...  ANY OBSCENE  ...  BOOK  ...  IS GUILTY OF A MISDEMEANOR
...  ."  SECTION 1141 OF NEW YORK'S PENAL LAW IS SIMILAR.  ONE WOULD BE
BOLD TO ASSERT THAT THE IN TERROREM EFFECT OF SUCH STATUTES LESS
RESTRAINS BOOKSELLERS IN THE PERIOD BEFORE THE LAW STRIKES THAN DOES
SEC. 22-A. INSTEAD OF REQUIRING THE BOOKSELLER TO DREAD THAT THE OFFER
FOR SALE OF A BOOK MAY, WITHOUT PRIOR WARNING, SUBJECT HIM TO A
CRIMINAL PROSECUTION WITH THE HAZARD OF IMPRISONMENT, THE CIVIL
PROCEDURE ASSURES HIM THAT SUCH CONSEQUENCES CANNOT FOLLOW UNLESS HE
IGNORES A COURT ORDER SPECIFICALLY DIRECTED TO HIM FOR A PROMPT AND
CAREFULLY CIRCUMSCRIBED DETERMINATION OF THE ISSUE OF OBSCENITY.  UNTIL
THEN, HE MAY KEEP THE BOOK FOR SALE AND SELL IT ON HIS OWN JUDGMENT
RATHER THAN STEER "NERVOUSLY AMONG THE TREACHEROUS SHOALS."  WARBURG,
ONWARD AND UPWARD WITH THE ARTS, THE NEW YORKER, APRIL 20, 1957, 98,
101, IN CONNECTION WITH R. V. MARTIN SECKER WARBURG, LTD., (1954) 2 ALL
ENG. 683 (C.C.C.). 

CRIMINAL ENFORCEMENT AND THE PROCEEDING UNDER SEC. 22-A INTERFERE
WITH A BOOK'S SOLICITATION OF THE PUBLIC PRECISELY AT THE SAME STAGE. 
IN EACH SITUATION THE LAW MOVES AFTER PUBLICATION; THE BOOK NEED NOT IN
EITHER CASE HAVE YET PASSED INTO THE HANDS OF THE PUBLIC.  THE ALBERTS
RECORD DOES NOT SHOW THAT THE MATTER THERE FOUND TO BE OBSCENE HAD
REACHED THE PUBLIC AT THE TIME THAT THE CRIMINAL CHARGE OF KEEPING SUCH
MATTER FOR SALE WAS LODGED, WHILE HERE AS A MATTER OF FACT COPIES OF
THE BOOKLETS WHOSE DISTRIBUTION WAS ENJOINED HAD BEEN ON SALE FOR
SEVERAL WEEKS WHEN PROCESS WAS SERVED.   IN EACH CASE THE BOOKSELLER IS
PUT ON NOTICE BY THE COMPLAINT THAT SALE OF THE PUBLICATION CHARGED
WITH OBSCENITY IN THE PERIOD BEFORE TRIAL MAY SUBJECT HIM TO PENAL
CONSEQUENCES.  IN THE ONE CASE HE MAY SUFFER FINE AND IMPRISONMENT FOR
VIOLATION OF THE CRIMINAL STATUTE, IN THE OTHER, FOR DISOBEDIENCE OF
THE TEMPORARY INJUNCTION.  THE BOOKSELLER MAY OF COURSE STAND HIS
GROUND AND CONFIDENTLY BELIEVE THAT IN ANY JUDICIAL PROCEEDING THE BOOK
COULD NOT BE CONDEMNED AS OBSCENE, BUT BOTH MODES OF PROCEDURE PROVIDE
AN EFFECTIVE DETERRENT AGAINST DISTRIBUTION PRIOR TO ADJUDICATION OF
THE BOOK'S CONTENT - THE THREAT OF SUBSEQUENT PENALIZATION.  (FN2) 

THE METHOD DEVISED BY NEW YORK IN SEC. 22-A FOR DETERMINING WHETHER A
PUBLICATION IS OBSCENE DOES NOT DIFFER IN ESSENTIAL PROCEDURAL
SAFEGUARDS FROM THAT PROVIDED UNDER MANY STATE STATUTES MAKING THE
DISTRIBUTION OF OBSCENE PUBLICATIONS A MISDEMEANOR.  FOR EXAMPLE, WHILE
THE NEW YORK CRIMINAL PROVISION BRINGS THE STATE'S CRIMINAL PROCEDURE
INTO OPERATION, A DEFENDANT IS NOT THEREBY ENTITLED TO A JURY TRIAL. 
IN EACH CASE A JUDGE IS THE CONVENTIONAL TRIER OF FACT; IN EACH, A JURY
MAY AS A MATTER OF DISCRETION BE SUMMONED.  COMPARE N.Y. CITY CRIMINAL
COURTS ACT, SEC. 31, SUB. 1(C) AND SUB. 4, WITH N.Y. CIVIL PRACTICE
ACT, SEC. 430.  (APPELLANTS, AS A MATTER OF FACT, DID NOT REQUEST A
JURY TRIAL, THEY DID NOT ATTACK THE STATUTE IN THE COURTS BELOW FOR
FAILURE TO REQUIRE A JURY, AND THEY DID NOT BRING THAT ISSUE TO THIS
COURT.)  OF COURSE, THE DUE PROCESS CLAUSE DOES NOT SUBJECT THE STATES
TO THE NECESSITY OF HAVING TRIAL BY JURY IN MISDEMEANOR PROSECUTIONS. 

NOR ARE THE CONSEQUENCES OF A JUDICIAL CONDEMNATION FOR OBSCENITY
UNDER SEC. 22-A MORE RESTRICTIVE OF FREEDOM OF EXPRESSION THAN THE
RESULT OF CONVICTION FOR A MISDEMEANOR.  IN ALBERTS, THE DEFENDANT WAS
FINED $500, SENTENCED TO SIXTY DAYS IN PRISON, AND PUT ON PROBATION FOR
TWO YEARS ON CONDITION THAT HE NOT VIOLATE THE OBSCENITY STATUTE.  NOT
ONLY WAS HE COMPLETELY SEPARATED FROM SOCIETY FOR TWO MONTHS BUT HE WAS
ALSO SERIOUSLY RESTRAINED FROM TRAFFICKING IN ALL OBSCENE PUBLICATIONS
FOR A CONSIDERABLE TIME.  APPELLANTS, ON THE OTHER HAND, WERE ENJOINED
FROM DISPLAYING FOR SALE OR DISTRIBUTING ONLY THE PARTICULAR BOOKLETS
THERETOFORE PUBLISHED AND ADJUDGED TO BE OBSCENE.  THUS, THE RESTRAINT
UPON APPELLANTS AS MERCHANTS IN OBSCENITY WAS NARROWER THAN THAT
IMPOSED ON ALBERTS. 

INSTRUMENTS OF ASCERTAINED WRONGDOING EXPRESSES RESORT TO A LEGAL
REMEDY SANCTIONED BY THE LONG HISTORY OF ANGLO-AMERICAN LAW.  SEE
HOLMES, THE COMMON LAW, 24-26; VAN OSTER V. KANSAS, 272 U.S. 465;
GOLDSMITH-GRANT CO. V. UNITED STATES, 254 U.S. 505, 510-511; LAWTON V.
STEELE, 152 U.S. 133; AND SEE UNITED STATES V. URBUTEIT, 335 U.S. 355,
DEALING WITH MISBRANDED ARTICLES UNDER SEC. 304(A) OF THE FOOD, DRUG,
AND COSMETIC ACT, 52 STAT. 1044.  IT IS WORTH NOTING THAT ALTHOUGH THE
ALBERTS RECORD DOES NOT REVEAL WHETHER THE PUBLICATIONS FOUND TO BE
OBSCENE WERE DESTROYED, PROVISION IS MADE FOR THAT BY SECS. 313 AND 314
OF THE CALIFORNIA PENAL CODE.  SIMILARLY, SEC. 1144 OF NEW YORK'S PENAL
LAW PROVIDES FOR DESTRUCTION OF OBSCENE MATTER FOLLOWING CONVICTION FOR
ITS DISSEMINATION. 

IT ONLY REMAINS TO SAY THAT THE DIFFERENCE BETWEEN NEAR V. MINNESOTA,
SUPRA, AND THIS CASE IS GLARING IN FACT.  THE TWO CASES ARE NO LESS
GLARINGLY DIFFERENT WHEN JUDGED BY THE APPROPRIATE CRITERIA OF
CONSTITUTIONAL LAW.  MINNESOTA EMPOWERED ITS COURTS TO ENJOIN THE
DISSEMINATION OF FUTURE ISSUES OF A PUBLICATION BECAUSE ITS PAST ISSUES
HAD BEEN FOUND OFFENSIVE.  IN THE LANGUAGE OF MR. CHIEF JUSTICE HUGHES,
"THIS IS OF THE ESSENCE OF CENSORSHIP."  283 U.S., AT 713.  AS SUCH, IT
WAS FOUND UNCONSTITUTIONAL.  THIS WAS ENOUGH TO CONDEMN THE STATUTE
WHOLLY APART FROM THE FACT THAT THE PROCEEDING IN NEAR INVOLVED NOT
OBSCENITY BUT MATTERS DEEMED TO BE DEROGATORY TO A PUBLIC OFFICER. 
UNLIKE NEAR, SEC. 22-A IS CONCERNED SOLELY WITH OBSCENITY AND, AS
AUTHORITATIVELY CONSTRUED, IT STUDIOUSLY WITHHOLDS RESTRAINT UPON
MATTERS NOT ALREADY PUBLISHED AND NOT YET FOUND TO BE OFFENSIVE.    THE
JUDGMENT IS AFFIRMED. 

FN1  "SEC.  22-A.  OBSCENE PRINTS AND ARTICLES; JURISDICTION.  THE
SUPREME COURT HAS JURISDICTION TO ENJOIN THE SALE OR DISTRIBUTION OF
OBSCENE PRINTS AND ARTICLES, AS HEREINAFTER SPECIFIED: 

"1.  THE CHIEF EXECUTIVE OFFICER OF ANY CITY, TOWN OR VILLAGE OR THE
CORPORATION COUNSEL, OR IF THERE BE NONE, THE CHIEF LEGAL OFFICER OF
ANY CITY, TOWN, OR VILLAGE, IN WHICH A PERSON, FIRM OR CORPORATION
SELLS OR DISTRIBUTES OR IS ABOUT TO SELL OR DISTRIBUTE OR HAS IN HIS
POSSESSION WITH INTENT TO SELL OR DISTRIBUTE OR IS ABOUT TO ACQUIRE
POSSESSION WITH INTENT TO SELL OR DISTRIBUTE ANY BOOK, MAGAZINE,
PAMPHLET, COMIC BOOK, STORY PAPER, WRITING, PAPER, PICTURE, DRAWING,
PHOTOGRAPH, FIGURE, IMAGE OR ANY WRITTEN OR PRINTED MATTER OF AN
INDECENT CHARACTER, WHICH IS OBSCENE, LEWD, LASCIVIOUS, FILTHY,
INDECENT OR DISGUSTING, OR WHICH CONTAINS AN ARTICLE OR INSTRUMENT OF
INDECENT OR IMMORAL USE OR PURPORTS TO BE FOR INDECENT OR IMMORAL USE
OR PURPOSE; OR IN ANY OTHER RESPECT DEFINED IN SECTION ELEVEN HUNDRED
FORTY-ONE OF THE PENAL LAW, MAY MAINTAIN AN ACTION FOR AN INJUNCTION
AGAINST SUCH PERSON, FIRM OR CORPORATION IN THE SUPREME COURT TO
PREVENT THE SALE OR FURTHER SALE OR THE DISTRIBUTION OR FURTHER
DISTRIBUTION OR THE ACQUISITION OR POSSESSION OF ANY BOOK, MAGAZINE,
PAMPHLET, COMIC BOOK, STORY PAPER, WRITING, PAPER, PICTURE, DRAWING,
PHOTOGRAPH FIGURE OR IMAGE OR ANY WRITTEN OR PRINTED MATTER OF AN
INDECENT CHARACTER, HEREIN DESCRIBED OR DESCRIBED IN SECTION ELEVEN
HUNDRED FORTY-ONE OF THE PENAL LAW. 

"2.  THE PERSON, FIRM OR CORPORATION SOUGHT TO BE ENJOINED SHALL BE
ENTITLED TO A TRIAL OF THE ISSUES WITHIN ONE DAY AFTER JOINDER OF ISSUE
AND A DECISION SHALL BE RENDERED BY THE COURT WITHIN TWO DAYS OF THE
CONCLUSION OF THE TRIAL. 

"3.  IN THE EVENT THAT A FINAL ORDER OR JUDGMENT OF INJUNCTION BE
ENTERED IN FAVOR OF SUCH OFFICER OF THE CITY, TOWN OR VILLAGE AND
AGAINST THE PERSON, FIRM OR CORPORATION SOUGHT TO BE ENJOINED, SUCH
FINAL ORDER OF JUDGMENT SHALL CONTAIN A PROVISION DIRECTING THE PERSON,
FIRM OR CORPORATION TO SURRENDER TO THE SHERIFF OF THE COUNTY IN WHICH
THE ACTION WAS BROUGHT ANY OF THE MATTER DESCRIBED IN PARAGRAPH ONE
HEREOF AND SUCH SHERIFF SHALL BE DIRECTED TO SEIZE AND DESTROY THE
SAME. 

"4.  IN ANY ACTION BROUGHT AS HEREIN PROVIDED SUCH OFFICER OF THE
CITY, TOWN OR VILLAGE SHALL NOT BE REQUIRED TO FILE ANY UNDERTAKING
BEFORE THE ISSUANCE OF AN INJUNCTION ORDER PROVIDED FOR IN PARAGRAPH
TWO HEREOF, SHALL NOT BE LIABLE FOR COSTS AND SHALL NOT BE LIABLE FOR
DAMAGES SUSTAINED BY REASON OF THE INJUNCTION ORDER IN CASES WHERE
JUDGMENT IS RENDERED IN FAVOR OF THE PERSON, FIRM OR CORPORATION SOUGHT
TO BE ENJOINED. 

"5.  EVERY PERSON, FIRM OR CORPORATION WHO SELLS, DISTRIBUTES, OR
ACQUIRES POSSESSION WITH INTENT TO SELL OR DISTRIBUTE ANY OF THE MATTER
DESCRIBED IN PARAGRAPH ONE HEREOF, AFTER THE SERVICE UPON HIM OF A
SUMMONS AND COMPLAINT IN AN ACTION BROUGHT BY SUCH OFFICER OF ANY CITY,
TOWN OR VILLAGE PURSUANT TO THIS SECTION IS CHARGEABLE WITH KNOWLEDGE
OF THE CONTENTS THEREOF." 

FN2  THIS COMPARISON OF REMEDIES TAKES NOTE OF THE FACT THAT WE DO NOT
HAVE BEFORE US A CASE WHERE, ALTHOUGH THE ISSUE OF OBSCENITY IS
ULTIMATELY DECIDED IN FAVOR OF THE BOOKSELLER, THE STATE NEVERTHELESS
ATTEMPTS TO PUNISH HIM FOR DISOBEDIENCE OF THE INTERIM INJUNCTION.  FOR
ALL WE KNOW, NEW YORK MAY IMPLIEDLY CONDITION THE TEMPORARY INJUNCTION
SO AS NOT TO SUBJECT THE BOOKSELLER TO A CHARGE OF CONTEMPT IF HE
PREVAILS ON THE ISSUE OF OBSCENITY. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

MY VIEWS ON THE RIGHT OF A STATE TO PROTECT ITS PEOPLE AGAINST THE
PURVEYANCE OF OBSCENITY WERE EXPRESSED IN ALBERTS V. CALIFORNIA, POST,
P. 476, ALSO DECIDED TODAY.  HERE WE HAVE AN ENTIRELY DIFFERENT
SITUATION. 

THIS IS NOT A CRIMINAL OBSCENITY CASE.  NOR IS IT A CASE ORDERING THE
DESTRUCTION OF MATERIALS DISSEMINATED BY A PERSON WHO HAS BEEN
CONVICTED OF AN OFFENSE FOR DOING SO, AS WOULD BE AUTHORIZED UNDER
PROVISIONS IN THE LAWS OF NEW YORK AND OTHER STATES.  IT IS A CASE
WHEREIN THE NEW YORK POLICE, UNDER A DIFFERENT STATE STATUTE, LOCATED
BOOKS WHICH, IN THEIR OPINION, WERE UNFIT FOR PUBLIC USE BECAUSE OF
OBSCENITY AND THEN OBTAINED A COURT ORDER FOR THEIR CONDEMNATION AND
DESTRUCTION. 

THE MAJORITY OPINION SANCTIONS THIS PROCEEDING.  I WOULD NOT.  UNLIKE
THE CRIMINAL CASES DECIDED TODAY, THIS NEW YORK LAW PLACES THE BOOK ON
TRIAL.  THERE IS TOTALLY LACKING ANY STANDARD IN THE STATUTE FOR
JUDGING THE BOOK IN CONTEXT.  THE PERSONAL ELEMENT BASIC TO THE
CRIMINAL LAWS IS ENTIRELY ABSENT.  IN MY JUDGMENT, THE SAME OBJECT MAY
HAVE WHOLLY DIFFERENT IMPACT DEPENDING UPON THE SETTING IN WHICH IT IS
PLACED.  UNDER THIS STATUTE, THE SETTING IS IRRELEVANT. 

IT IS THE MANNER OF USE THAT SHOULD DETERMINE OBSCENITY.  IT IS THE
CONDUCT OF THE INDIVIDUAL THAT SHOULD BE JUDGED, NOT THE QUALITY OF ART
OR LITERATURE.  TO DO OTHERWISE IS TO IMPOSE A PRIOR RESTRAINT AND
HENCE TO VIOLATE THE CONSTITUTION.  CERTAINLY IN THE ABSENCE OF A PRIOR
JUDICIAL DETERMINATION OF ILLEGAL USE, BOOKS, PICTURES AND OTHER
OBJECTS OF EXPRESSION SHOULD NOT BE DESTROYED.  IT SAVORS TOO MUCH OF
BOOK BURNING. 

I WOULD REVERSE. 

OPINION OF MR. JUSTICE DOUGLAS, JOINED BY MR. JUSTICE BLACK,
DISSENTING, ANNOUNCED BY MR. JUSTICE BRENNAN. 

THERE ARE TWO REASONS WHY I THINK THIS RESTRAINING ORDER SHOULD BE
DISSOLVED. 

FIRST, THE PROVISION FOR AN INJUNCTION PENDENTE LITE GIVES THE STATE
THE PARALYZING POWER OF A CENSOR.  A DECREE CAN ISSUE EX PARTE -
WITHOUT A HEARING AND WITHOUT ANY RULING OR FINDING ON THE ISSUE OF
OBSCENITY.  THIS PROVISION IS DEFENDED ON THE GROUND THAT IT IS ONLY A
LITTLE ENCROACHMENT, THAT A HEARING MUST BE PROMPTLY GIVEN AND A
FINDING OF OBSCENITY PROMPTLY MADE.  BUT EVERY PUBLISHER KNOWS WHAT
AWFUL EFFECT A DECREE ISSUED IN SECRET CAN HAVE.  WE TREAD HERE ON
FIRST AMENDMENT GROUNDS.  AND NOTHING IS MORE DEVASTATING TO THE RIGHTS
THAT IT GUARANTEES THAN THE POWER TO RESTRAIN PUBLICATION BEFORE EVEN A
HEARING IS HELD.  THIS IS PRIOR RESTRAINT AND CENSORSHIP AT ITS WORST. 

SECOND, THE PROCEDURE FOR RESTRAINING BY EQUITY DECREE THE
DISTRIBUTION OF ALL THE CONDEMNED LITERATURE DOES VIOLENCE TO THE FIRST
AMENDMENT.  THE JUDGE OR JURY WHICH FINDS THE PUBLISHER GUILTY IN NEW
YORK CITY ACTS ON EVIDENCE THAT MAY BE QUITE DIFFERENT FROM EVIDENCE
BEFORE THE JUDGE OR JURY THAT FINDS THE PUBLISHER NOT GUILTY IN
ROCHESTER.  IN NEW YORK CITY THE PUBLISHER MAY HAVE BEEN SELLING HIS
TRACTS TO JUVENILES, WHILE IN ROCHESTER HE MAY HAVE SOLD TO
PROFESSIONAL PEOPLE.  THE NATURE OF THE GROUP AMONG WHOM THE TRACTS ARE
DISTRIBUTED MAY HAVE AN IMPORTANT BEARING ON THE ISSUE OF GUILT IN ANY
OBSCENITY PROSECUTION.  YET THE PRESENT STATUTE MAKES ONE CRIMINAL
CONVICTION CONCLUSIVE AND AUTHORIZES A STATEWIDE DECREE THAT SUBJECTS
THE DISTRIBUTOR TO THE CONTEMPT POWER.  I THINK EVERY PUBLICATION IS A
SEPARATE OFFENSE WHICH ENTITLES THE ACCUSED TO A SEPARATE TRIAL. 
JURIES OR JUDGES MAY DIFFER IN THEIR OPINIONS, COMMUNITY BY COMMUNITY,
CASE BY CASE.  THE PUBLISHER IS ENTITLED TO THAT LEEWAY UNDER OUR
CONSTITUTIONAL SYSTEM.  ONE IS ENTITLED TO DEFEND EVERY UTTERANCE ON
ITS MERITS AND NOT TO SUFFER TODAY FOR WHAT HE UTTERED YESTERDAY.  FREE
SPEECH IS NOT TO BE REGULATED LIKE DISEASED CATTLE AND IMPURE BUTTER. 
THE AUDIENCE (IN THIS CASE THE JUDGE OR THE JURY) THAT HISSED YESTERDAY
MAY APPLAUD TODAY, EVEN FOR THE SAME PERFORMANCE. 

THE REGIME APPROVED BY THE COURT GOES FAR TOWARD MAKING THE CENSOR
SUPREME.  IT ALSO SUBSTITUTES PUNISHMENT BY CONTEMPT FOR PUNISHMENT BY
JURY TRIAL.  IN BOTH RESPECTS IT TRANSGRESSES CONSTITUTIONAL
GUARANTEES. 

I WOULD REVERSE THIS JUDGMENT AND DIRECT THE RESTRAINING ORDER TO BE
DISSOLVED. 

MR. JUSTICE BRENNAN, DISSENTING. 

I BELIEVE THE ABSENCE IN THIS NEW YORK OBSCENITY STATUTE OF A RIGHT
TO JURY TRIAL IS A FATAL DEFECT.  PROVISION FOR JURY TRIALS IN EQUITY
CAUSES IS MADE BY SEC. 430 OF THE NEW YORK CIVIL PRACTICE ACT, (FN1)
BUT ONLY FOR DISCRETIONARY JURY TRIALS, AND ADVISORY VERDICTS, TO BE
FOLLOWED OR REJECTED BY THE TRIAL JUDGE AS HE DEEMS FIT AND PROPER. 
(FN2) 

IN ALBERTS V. CALIFORNIA AND ROTH V. UNITED STATES, DECIDED TODAY,
POST, P. 476, THE COURT HELD TO BE CONSTITUTIONAL THE FOLLOWING
STANDARD FOR JUDGING OBSCENITY - WHETHER TO THE AVERAGE PERSON,
APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME OF THE
MATERIAL TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST.  THE STATUTES
THERE INVOLVED ALLOWED A JURY TRIAL OF RIGHT, AND WE DID NOT REACH THE
QUESTION WHETHER THE SAFEGUARDS NECESSARY FOR SECURING THE FREEDOMS OF
SPEECH AND PRESS FOR MATERIAL NOT OBSCENE INCLUDED A JURY DETERMINATION
OF OBSCENITY. 

THE JURY REPRESENTS A CROSS-SECTION OF THE COMMUNITY AND HAS A
SPECIAL APTITUDE FOR REFLECTING THE VIEW OF THE AVERAGE PERSON.  JURY
TRIAL OF OBSCENITY THEREFORE PROVIDES A PECULIARLY COMPETENT
APPLICATION OF THE STANDARD FOR JUDGING OBSCENITY WHICH, BY ITS
DEFINITION, CALLS FOR AN APPRAISAL OF MATERIAL ACCORDING TO THE AVERAGE
PERSON'S APPLICATION OF CONTEMPORARY COMMUNITY STANDARDS.  A STATUTE
WHICH DOES NOT AFFORD THE DEFENDANT, OF RIGHT, A JURY DETERMINATION OF
OBSCENITY FALLS SHORT, IN MY VIEW, OF GIVING PROPER EFFECT TO THE
STANDARD FASHIONED AS THE NECESSARY SAFEGUARD DEMANDED BY THE FREEDOMS
OF SPEECH AND PRESS FOR MATERIAL WHICH IS NOT OBSCENE.  OF COURSE, AS
WITH JURY QUESTIONS GENERALLY, THE TRIAL JUDGE MUST INITIALLY DETERMINE
THAT THERE IS A JURY QUESTION, I.E., THAT REASONABLE MEN MAY DIFFER
WHETHER THE MATERIAL IS OBSCENE.  (FN3) 

I WOULD REVERSE THE JUDGMENT AND DIRECT THE RESTRAINING ORDER TO BE
DISSOLVED. 

FN1  GILBERT-BLISS' N.Y. CIV. PRAC., VOL. 3B, 1942, SEC. 430. 

FN2  LEARNED V. TILLOTSON, 97 N.Y. 1; BOLOGNINO V. BOLOGNINO, 136
MISC. 656, 241 N.Y.  SUPP. 445 (SUP. CT.), AFF'D, 231 APP. DIV. 817,
246 N.Y. SUPP. 883. 

FN3  PARMELEE V. UNITED STATES, 72 APP. D.C. 203, 205, 113 F.2D 729,
731; UNITED STATES V. DENNETT, 39 F.2D 564, 568. 
..END :







MALLORY V. UNITED STATES 354 U.S. 449 


NO. 521.  ARGUED APRIL 1, 1957.  - DECIDED JUNE 24, 1957.  - 98 U.S.
APP. D.C. 406, 236 F.2D 701, REVERSED AND REMANDED. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT OF RAPE AND
SENTENCED TO DEATH AFTER A TRIAL IN WHICH THERE WAS ADMITTED IN
EVIDENCE A CONFESSION OBTAINED UNDER THE FOLLOWING CIRCUMSTANCES:  HE
WAS ARRESTED EARLY IN THE AFTERNOON AND WAS DETAINED AT POLICE
HEADQUARTERS WITHIN THE VICINITY OF NUMEROUS COMMITTING MAGISTRATES. 
HE WAS NOT TOLD OF HIS RIGHT TO COUNSEL OR TO A PRELIMINARY EXAMINATION
BEFORE A MAGISTRATE, NOR WAS HE WARNED THAT HE MIGHT KEEP SILENT AND
THAT ANY STATEMENT MADE BY HIM MIGHT BE USED AGAINST HIM.  NOT UNTIL
AFTER PETITIONER HAD CONFESSED, ABOUT 9:30 P.M., WAS AN ATTEMPT MADE TO
TAKE HIM BEFORE A COMMITTING MAGISTRATE, AND HE WAS NOT ACTUALLY TAKEN
BEFORE A MAGISTRATE UNTIL THE NEXT MORNING.  HELD:  THIS WAS A
VIOLATION OF RULE 5(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE,
WHICH REQUIRES THAT AN ARRESTED PERSON BE TAKEN BEFORE A COMMITTING
MAGISTRATE "WITHOUT UNNECESSARY DELAY," AND THE CONVICTION IS
REVERSED.  MCNABB V. UNITED STATES, 318 U.S. 332; UPSHAW V. UNITED
STATES, 335 U.S. 410.  PP. 449-456. 

MALLORY V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF RAPE IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA, AND, AS AUTHORIZED BY THE DISTRICT CODE,
THE JURY IMPOSED A DEATH SENTENCE.  THE COURT OF APPEALS AFFIRMED, ONE
JUDGE DISSENTING.  98 U.S. APP. D.C. 406, 236 F.2D 701.  SINCE AN
IMPORTANT QUESTION INVOLVING THE INTERPRETATION OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE WAS INVOLVED IN THIS CAPITAL CASE, WE GRANTED THE
PETITION FOR CERTIORARI.  352 U.S. 877. 

THE RAPE OCCURRED AT SIX P.M. ON APRIL 7, 1954, IN THE BASEMENT OF
THE APARTMENT HOUSE INHABITED BY THE VICTIM.  SHE HAD DESCENDED TO THE
BASEMENT A FEW MINUTES PREVIOUS TO WASH SOME LAUNDRY.  EXPERIENCING
SOME DIFFICULTY IN DETACHING A HOSE IN THE SINK, SHE SOUGHT HELP FROM
THE JANITOR, WHO LIVED IN A BASEMENT APARTMENT WITH HIS WIFE, TWO GROWN
SONS, A YOUNGER SON AND THE PETITIONER, HIS NINETEEN-YEAR-OLD HALF
BROTHER.  PETITIONER WAS ALONE IN THE APARTMENT AT THE TIME.  HE
DETACHED THE HOSE AND RETURNED TO HIS QUARTERS.  VERY SHORTLY
THEREAFTER, A MASKED MAN, WHOSE GENERAL FEATURES WERE IDENTIFIED TO
RESEMBLE THOSE OF PETITIONER AND HIS TWO GROWN NEPHEWS, ATTACKED THE
WOMAN.  SHE HAD HEARD NO ONE DESCEND THE WOODEN STEPS THAT FURNISHED
THE ONLY MEANS OF ENTERING THE BASEMENT FROM ABOVE. 

PETITIONER AND ONE OF HIS GROWN NEPHEWS DISAPPEARED FROM THE
APARTMENT HOUSE SHORTLY AFTER THE CRIME WAS COMMITTED.  THE FORMER WAS
APPREHENDED THE FOLLOWING AFTERNOON BETWEEN TWO AND TWO-THIRTY P.M. AND
WAS TAKEN, ALONG WITH HIS OLDER NEPHEWS, ALSO SUSPECTS, TO POLICE
HEADQUARTERS.  AT LEAST FOUR OFFICERS QUESTIONED HIM THERE IN THE
PRESENCE OF OTHER OFFICERS FOR THIRTY TO FORTY-FIVE MINUTES, BEGINNING
THE EXAMINATION BY TELLING HIM, ACCORDING TO HIS TESTIMONY, THAT HIS
BROTHER HAD SAID THAT HE WAS THE ASSAILANT.  PETITIONER STRENUOUSLY
DENIED HIS GUILT.  HE SPENT THE REST OF THE AFTERNOON AT HEADQUARTERS,
IN THE COMPANY OF THE OTHER TWO SUSPECTS AND HIS BROTHER A GOOD PART OF
THE TIME.  ABOUT FOUR P.M.  THE THREE SUSPECTS WERE ASKED TO SUBMIT TO
"LIE DETECTOR" TESTS, AND THEY AGREED.  THE OFFICER IN CHARGE OF THE
POLYGRAPH MACHINE WAS NOT LOCATED FOR ALMOST TWO HOURS, DURING WHICH
TIME THE SUSPECTS RECEIVED FOOD AND DRINK.  THE NEPHEWS WERE THEN
EXAMINED FIRST.  QUESTIONING OF PETITIONER BEGAN JUST AFTER EIGHT P.M.
ONLY HE AND THE POLYGRAPH OPERATOR WERE PRESENT IN A SMALL ROOM, THE
DOOR TO WHICH WAS CLOSED. 

FOLLOWING ALMOST AN HOUR AND ONE-HALF OF STEADY INTERROGATION, HE
"FIRST STATED THAT HE COULD HAVE DONE THIS CRIME, OR THAT HE MIGHT HAVE
DONE IT.  HE FINALLY STATED THAT HE WAS RESPONSIBLE  ...  ." 
(TESTIMONY OF POLYGRAPH OPERATOR, R. 70.)  NOT UNTIL TEN P.M., AFTER
PETITIONER HAD REPEATED HIS CONFESSION TO OTHER OFFICERS, DID THE
POLICE ATTEMPT TO REACH A UNITED STATES COMMISSIONER FOR THE PURPOSE OF
ARRAIGNMENT.  FAILING IN THIS, THEY OBTAINED PETITIONER'S CONSENT TO
EXAMINATION BY THE DEPUTY CORONER, WHO NOTED NO INDICIA OF PHYSICAL OR
PSYCHOLOGICAL COERCION.  PETITIONER WAS THEN CONFRONTED BY THE
COMPLAINING WITNESS AND "PRACTICALLY EVERY MAN IN THE SEX SQUAD," AND
IN RESPONSE TO QUESTIONING BY THREE OFFICERS, HE REPEATED THE
CONFESSION.  BETWEEN ELEVEN-THIRTY P.M. AND TWELVE-THIRTY A.M. HE
DICTATED THE CONFESSION TO A TYPIST.  THE NEXT MORNING HE WAS BROUGHT
BEFORE A COMMISSIONER.  AT THE TRIAL, WHICH WAS DELAYED FOR A YEAR
BECAUSE OF DOUBT ABOUT PETITIONER'S CAPACITY TO UNDERSTAND THE
PROCEEDINGS AGAINST HIM, THE SIGNED CONFESSION WAS INTRODUCED IN
EVIDENCE. 

THE CASE CALLS FOR THE PROPER APPLICATION OF RULE 5(A) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE, PROMULGATED IN 1946, 327 U.S. 821.  THAT
RULE PROVIDES: 

"(A)  APPEARANCE BEFORE THE COMMISSIONER.  AN OFFICER MAKING AN
ARREST UNDER A WARRANT ISSUED UPON A COMPLAINT OR ANY PERSON MAKING AN
ARREST WITHOUT A WARRANT SHALL TAKE THE ARRESTED PERSON WITHOUT
UNNECESSARY DELAY BEFORE THE NEAREST AVAILABLE COMMISSIONER OR BEFORE
ANY OTHER NEARBY OFFICER EMPOWERED TO COMMIT PERSONS CHARGED WITH
OFFENSES AGAINST THE LAWS OF THE UNITED STATES.  WHEN A PERSON ARRESTED
WITHOUT A WARRANT IS BROUGHT BEFORE A COMMISSIONER OR OTHER OFFICER, A
COMPLAINT SHALL BE FILED FORTHWITH." 

THIS PROVISION HAS BOTH STATUTORY AND JUDICIAL ANTECEDENTS FOR
GUIDANCE IN APPLYING IT.  THE REQUIREMENT THAT ARRAIGNMENT BE "WITHOUT
UNNECESSARY DELAY" IS A COMPENDIOUS RESTATEMENT, WITHOUT SUBSTANTIVE
CHANGE, OF SEVERAL PRIOR SPECIFIC FEDERAL STATUTORY PROVISIONS.  (E.G.,
20 STAT. 327, 341; 48 STAT. 1008; ALSO 28 STAT. 416.)  SEE DESSION, THE
NEW FEDERAL RULES OF CRIMINAL PROCEDURE: I, 55 YALE L.J. 694, 707. 
NEARLY ALL THE STATES HAVE SIMILAR ENACTMENTS. 

IN MCNABB V. UNITED STATES, 318 U.S. 332, 343-344, WE SPELLED OUT THE
IMPORTANT REASONS OF POLICY BEHIND THIS BODY OF LEGISLATION: 

"THE PURPOSE OF THIS IMPRESSIVELY PERVASIVE REQUIREMENT OF CRIMINAL
PROCEDURE IS PLAIN  ...  . THE AWFUL INSTRUMENTS OF THE CRIMINAL LAW
CANNOT BE ENTRUSTED TO A SINGLE FUNCTIONARY.  THE COMPLICATED PROCESS
OF CRIMINAL JUSTICE IS THEREFORE DIVIDED INTO DIFFERENT PARTS,
RESPONSIBILITY FOR WHICH IS SEPARATELY VESTED IN THE VARIOUS
PARTICIPANTS UPON WHOM THE CRIMINAL LAW RELIES FOR ITS VINDICATION. 
LEGISLATION SUCH AS THIS, REQUIRING THAT POLICE MUST WITH REASONABLE
PROMPTNESS SHOW LEGAL CAUSE FOR DETAINING ARRESTED PERSONS, CONSTITUTES
AN IMPORTANT SAFEGUARD - NOT ONLY IN ASSURING PROTECTION FOR THE
INNOCENT BUT ALSO IN SECURING CONVICTION OF THE GUILTY BY METHODS THAT
COMMEND THEMSELVES TO A PROGRESSIVE AND SELF-CONFIDENT SOCIETY.  FOR
THIS PROCEDURAL REQUIREMENT CHECKS RESORT TO THOSE REPREHENSIBLE
PRACTICES KNOWN AS THE 'THIRD DEGREE' WHICH, THOUGH UNIVERSALLY
REJECTED AS INDEFENSIBLE, STILL FIND THEIR WAY INTO USE.  IT AIMS TO
AVOID ALL THE EVIL IMPLICATIONS OF SECRET INTERROGATION OF PERSONS
ACCUSED OF CRIME." 

SINCE SUCH UNWARRANTED DETENTION LED TO TEMPTING UTILIZATION OF
INTENSIVE INTERROGATION, EASILY GLIDING INTO THE EVILS OF "THE THIRD
DEGREE," THE COURT HELD THAT POLICE DETENTION OF DEFENDANTS BEYOND THE
TIME WHEN A COMMITTING MAGISTRATE WAS READILY ACCESSIBLE CONSTITUTED
"WILLFUL DISOBEDIENCE OF LAW."  IN ORDER ADEQUATELY TO ENFORCE THE
CONGRESSIONAL REQUIREMENT OF PROMPT ARRAIGNMENT, IT WAS DEEMED
NECESSARY TO RENDER INADMISSIBLE INCRIMINATING STATEMENTS ELICITED FROM
DEFENDANTS DURING A PERIOD OF UNLAWFUL DETENTION. 

IN UPSHAW V. UNITED STATES, 335 U.S. 410, WHICH CAME HERE AFTER THE
FEDERAL RULES OF CRIMINAL PROCEDURE HAD BEEN IN OPERATION, THE COURT
MADE IT CLEAR THAT RULE 5(A)'S STANDARD OF "WITHOUT UNNECESSARY DELAY"
IMPLIED NO RELAXATION OF THE MCNABB DOCTRINE. 

THE REQUIREMENT OF RULE 5(A) IS PART OF THE PROCEDURE DEVISED BY
CONGRESS FOR SAFEGUARDING INDIVIDUAL RIGHTS WITHOUT HAMPERING EFFECTIVE
AND INTELLIGENT LAW ENFORCEMENT.  PROVISIONS RELATED TO RULE 5(A)
CONTEMPLATE A PROCEDURE THAT ALLOWS ARRESTING OFFICERS LITTLE MORE
LEEWAY THAN THE INTERVAL BETWEEN ARREST AND THE ORDINARY ADMINISTRATIVE
STEPS REQUIRED TO BRING A SUSPECT BEFORE THE NEAREST AVAILABLE
MAGISTRATE.  RULE 4(A) PROVIDES:  "IF IT APPEARS FROM THE COMPLAINT
THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN
COMMITTED AND THAT THE DEFENDANT HAS COMMITTED IT, A WARRANT FOR THE
ARREST OF THE DEFENDANT SHALL ISSUE  ...  ."  RULE 4(B) REQUIRES THAT
THE WARRANT "SHALL COMMAND THAT THE DEFENDANT BE ARRESTED AND BROUGHT
BEFORE THE NEAREST AVAILABLE COMMISSIONER."  AND RULES 5(B) AND (C)
REVEAL THE FUNCTION OF THE REQUIREMENT OF PROMPT ARRAIGNMENT:

"(B)  STATEMENT BY THE COMMISSIONER.  THE COMMISSIONER SHALL INFORM
THE DEFENDANT OF THE COMPLAINT AGAINST HIM, OF HIS RIGHT TO RETAIN
COUNSEL AND OF HIS RIGHT TO HAVE A PRELIMINARY EXAMINATION.  HE SHALL
ALSO INFORM THE DEFENDANT THAT HE IS NOT REQUIRED TO MAKE A STATEMENT
AND THAT ANY STATEMENT MADE BY HIM MAY BE USED AGAINST HIM.  THE
COMMISSIONER SHALL ALLOW THE DEFENDANT REASONABLE TIME AND OPPORTUNITY
TO CONSULT COUNSEL AND SHALL ADMIT THE DEFENDANT TO BAIL AS PROVIDED IN
THESE RULES. 

"(C)  PRELIMINARY EXAMINATION.  THE DEFENDANT SHALL NOT BE CALLED
UPON TO PLEAD.  IF THE DEFENDANT WAIVES PRELIMINARY EXAMINATION, THE
COMMISSIONER SHALL FORTHWITH HOLD HIM TO ANSWER IN THE DISTRICT COURT. 
IF THE DEFENDANT DOES NOT WAIVE EXAMINATION, THE COMMISSIONER SHALL
HEAR THE EVIDENCE WITHIN A REASONABLE TIME.  THE DEFENDANT MAY CROSS
EXAMINE WITNESSES AGAINST HIM AND MAY INTRODUCE EVIDENCE IN HIS OWN
BEHALF.  IF FROM THE EVIDENCE IT APPEARS TO THE COMMISSIONER THAT THERE
IS PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED AND
THAT THE DEFENDANT HAS COMMITTED IT, THE COMMISSIONER SHALL FORTHWITH
HOLD HIM TO ANSWER IN THE DISTRICT COURT; OTHERWISE THE COMMISSIONER
SHALL DISCHARGE HIM.  THE COMMISSIONER SHALL ADMIT THE DEFENDANT TO
BAIL AS PROVIDED IN THESE RULES." 

THE SCHEME FOR INITIATING A FEDERAL PROSECUTION IS PLAINLY DEFINED. 
THE POLICE MAY NOT ARREST UPON MERE SUSPICION BUT ONLY ON "PROBABLE
CAUSE."  THE NEXT STEP IN THE PROCEEDING IS TO ARRAIGN THE ARRESTED
PERSON BEFORE A JUDICIAL OFFICER AS QUICKLY AS POSSIBLE SO THAT HE MAY
BE ADVISED OF HIS RIGHTS AND SO THAT THE ISSUE OF PROBABLE CAUSE MAY BE
PROMPTLY DETERMINED.  THE ARRESTED PERSON MAY, OF COURSE, BE "BOOKED"
BY THE POLICE.  BUT HE IS NOT TO BE TAKEN TO POLICE HEADQUARTERS IN
ORDER TO CARRY OUT A PROCESS OF INQUIRY THAT LENDS ITSELF, EVEN IF NOT
SO DESIGNED, TO ELICITING DAMAGING STATEMENTS TO SUPPORT THE ARREST AND
ULTIMATELY HIS GUILT. 

THE DUTY ENJOINED UPON ARRESTING OFFICERS TO ARRAIGN "WITHOUT
UNNECESSARY DELAY" INDICATES THAT THE COMMAND DOES NOT CALL FOR
MECHANICAL OR AUTOMATIC OBEDIENCE.  CIRCUMSTANCES MAY JUSTIFY A BRIEF
DELAY BETWEEN ARREST AND ARRAIGNMENT, AS FOR INSTANCE, WHERE THE STORY
VOLUNTEERED BY THE ACCUSED IS SUSCEPTIBLE OF QUICK VERIFICATION THROUGH
THIRD PARTIES.  BUT THE DELAY MUST NOT BE OF A NATURE TO GIVE
OPPORTUNITY FOR THE EXTRACTION OF A CONFESSION. 

THE CIRCUMSTANCES OF THIS CASE PRECLUDE A HOLDING THAT ARRAIGNMENT
WAS "WITHOUT UNNECESSARY DELAY."  PETITIONER WAS ARRESTED IN THE EARLY
AFTERNOON AND WAS DETAINED AT HEADQUARTERS WITHIN THE VICINITY OF
NUMEROUS COMMITTING MAGISTRATES.  EVEN THOUGH THE POLICE HAD AMPLE
EVIDENCE FROM OTHER SOURCES THAN THE PETITIONER FOR REGARDING THE
PETITIONER AS THE CHIEF SUSPECT, THEY FIRST QUESTIONED HIM FOR
APPROXIMATELY A HALF HOUR.  WHEN THIS INQUIRY OF A NINETEEN-YEAR-OLD
LAD OF LIMITED INTELLIGENCE PRODUCED NO CONFESSION, THE POLICE ASKED
HIM TO SUBMIT TO A "LIE-DETECTOR" TEST.  HE WAS NOT TOLD OF HIS RIGHTS
TO COUNSEL OR TO A PRELIMINARY EXAMINATION BEFORE A MAGISTRATE, NOR WAS
HE WARNED THAT HE MIGHT KEEP SILENT AND "THAT ANY STATEMENT MADE BY HIM
MAY BE USED AGAINST HIM."  AFTER FOUR HOURS OF FURTHER DETENTION AT
HEADQUARTERS, DURING WHICH ARRAIGNMENT COULD EASILY HAVE BEEN MADE IN
THE SAME BUILDING IN WHICH THE POLICE HEADQUARTERS WERE HOUSED,
PETITIONER WAS EXAMINED BY THE LIE-DETECTOR OPERATOR FOR ANOTHER HOUR
AND A HALF BEFORE HIS STORY BEGAN TO WAVER.  NOT UNTIL HE HAD
CONFESSED, WHEN ANY JUDICIAL CAUTION HAD LOST ITS PURPOSE, DID THE
POLICE ARRAIGN HIM. 

WE CANNOT SANCTION THIS EXTENDED DELAY, RESULTING IN CONFESSION,
WITHOUT SUBORDINATING THE GENERAL RULE OF PROMPT ARRAIGNMENT TO THE
DISCRETION OF ARRESTING OFFICERS IN FINDING EXCEPTIONAL CIRCUMSTANCES
FOR ITS DISREGARD.  IN EVERY CASE WHERE THE POLICE RESORT TO
INTERROGATION OF AN ARRESTED PERSON AND SECURE A CONFESSION, THEY MAY
WELL CLAIM, AND QUITE SINCERELY, THAT THEY WERE MERELY TRYING TO CHECK
ON THE INFORMATION GIVEN BY HIM.  AGAINST SUCH A CLAIM AND THE EVIL
POTENTIALITIES OF THE PRACTICE FOR WHICH IT IS URGED STANDS RULE 5(A)
AS A BARRIER.  NOR IS THERE AN ESCAPE FROM THE CONSTRAINT LAID UPON THE
POLICE BY THAT RULE IN THAT TWO OTHER SUSPECTS WERE INVOLVED FOR THE
SAME CRIME.  PRESUMABLY, WHOMEVER THE POLICE ARREST THEY MUST ARREST ON
"PROBABLE CAUSE."  IT IS NOT THE FUNCTION OF THE POLICE TO ARREST, AS
IT WERE, AT LARGE AND TO USE AN INTERROGATING PROCESS AT POLICE
HEADQUARTERS IN ORDER TO DETERMINE WHOM THEY SHOULD CHARGE BEFORE A
COMMITTING MAGISTRATE ON "PROBABLE CAUSE."  REVERSED AND REMANDED. 
..END :



















MOREY V. DOUD, DBA BONDIFIED SYSTEMS 354 U.S. 457 


NO. 475.  ARGUED APRIL 24, 1957.  - DECIDED JUNE 24, 1957.  - 146 F.
SUPP. 887, AFFIRMED. 


THE ILLINOIS COMMUNITY CURRENCY EXCHANGES ACT PROVIDES FOR THE
LICENSING, INSPECTION, BONDING AND REGULATION OF "CURRENCY EXCHANGES"
ENGAGED IN THE BUSINESS OF ISSUING OR SELLING MONEY ORDERS.  IT FORBIDS
THEM TO DO BUSINESS ON THE PREMISES OF ANY OTHER BUSINESS; BUT IT
EXEMPTS FROM ALL OF ITS PROVISIONS MONEY ORDERS SOLD OR ISSUED BY THE
AMERICAN EXPRESS CO., AN OLD, ESTABLISHED, WORLD-WIDE ENTERPRISE OF
UNQUESTIONED SOLVENCY AND HIGH FINANCIAL STANDING, WHICH SELLS MONEY
ORDERS THROUGH LOCAL DRUG AND GROCERY STORES.  APPELLEES, A "CURRENCY
EXCHANGE" ISSUING AND SELLING MONEY ORDERS AND ITS AGENT SELLING THEM
IN HIS OWN DRUGSTORE, SUED TO ENJOIN ENFORCEMENT OF THE ACT AGAINST
THEM, ON THE GROUND OF ITS UNCONSTITUTIONALITY.  HELD:  APPLICATION OF
THE ACT TO APPELLEES DENIES THEM THE EQUAL PROTECTION OF THE LAWS
GUARANTEED BY THE FOURTEENTH AMENDMENT.  PP. 458-470. 

(A)  THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE THAT EVERY STATE
REGULATORY STATUTE APPLY TO ALL IN THE SAME BUSINESS; BUT A STATUTORY
DISCRIMINATION MUST BE BASED ON DIFFERENCES THAT ARE REASONABLY RELATED
TO THE PURPOSES OF THE STATUTE.  SMITH V. CAHOON, 283 U.S. 553.  PP.
465-466. 

(B)  MOREOVER, A DISCRIMINATION CANNOT BE JUSTIFIED BY DIFFERENT
BUSINESS CHARACTERISTICS WHEN IT HAS NO REASONABLE RELATION TO THOSE
DIFFERENCES.  HARTFORD CO. V. HARRISON, 301 U.S. 459.  P. 466. 

(C)  THE DISCRIMINATION IN FAVOR OF THE AMERICAN EXPRESS CO. HERE
INVOLVED DOES NOT HAVE A REASONABLE RELATION TO THE PURPOSES OF THE ACT
OR TO DIFFERENT BUSINESS CHARACTERISTICS.  PP. 466-467. 

(D)  THE EFFECT OF THE DISCRIMINATION HERE INVOLVED IS TO CREATE A
CLOSED CLASS BY SINGLING OUT AMERICAN EXPRESS MONEY ORDERS FOR
EXEMPTION FROM THE REQUIREMENTS OF THE ACT.  PP. 467-468. 

(E)  THE EXEMPTION OF ITS MONEY ORDERS GIVES THE AMERICAN EXPRESS CO.
IMPORTANT ECONOMIC AND COMPETITIVE ADVANTAGES OVER APPELLEES.  PP. 468
469. 

(F)  TAKING THESE FACTORS IN CONJUNCTION, APPLICATION OF THE ACT TO
APPELLEES DEPRIVES THEM OF EQUAL PROTECTION OF THE LAWS.  P. 469. 

(G)  THIS CASE NEED NOT BE REMITTED TO THE ILLINOIS COURTS FOR A
DETERMINATION WHETHER THE EXCEPTION CAN BE SEVERED FROM THE ACT UNDER
ITS SEVERABILITY CLAUSE, BECAUSE THE SUPREME COURT OF ILLINOIS HAS
INDICATED RATHER CLEARLY THAT THE EXCEPTION IS NOT SEVERABLE.  PP.  469
470. 

MOREY, AUDITOR OF PUBLIC ACCOUNTS OF ILLINOIS, ET AL. V. DOUD ET AL.,
DOING BUSINESS AS BONDIFIED SYSTEMS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE VALIDITY OF A PROVISION IN THE ILLINOIS
COMMUNITY CURRENCY EXCHANGES ACT, AS AMENDED, (FN1) EXCEPTING MONEY
ORDERS OF THE AMERICAN EXPRESS COMPANY FROM THE REQUIREMENT THAT ANY
FIRM SELLING OR ISSUING MONEY ORDERS IN THE STATE MUST SECURE A LICENSE
AND SUBMIT TO STATE REGULATION.  THE OBJECTION RAISED IS THAT THIS
EXCEPTION RESULTS IN A DENIAL OF EQUAL PROTECTION OF THE LAWS,
GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES, TO THOSE WHO ARE SUBJECTED TO THE REQUIREMENTS OF THE
ACT.  FOR THE REASONS HEREAFTER STATED, WE HOLD THAT THE ACT IS INVALID
AS APPLIED TO THEM BECAUSE OF THIS DISCRIMINATORY EXCEPTION. 

THE APPELLEES IN THIS CASE ARE DOUD, MCDONALD AND CARLSON, PARTNERS
DOING BUSINESS AS BONDIFIED SYSTEMS, AND DERRICK, THEIR AGENT.  THE
PARTNERSHIP HAS AN EXCLUSIVE RIGHT TO SELL "BONDIFIED" MONEY ORDERS IN
ILLINOIS, DIRECTLY OR THROUGH AGENTS.  (FN2)  IT CONTEMPLATES SELLING
THESE MONEY ORDERS IN ILLINOIS THROUGH AGENTS PRINCIPALLY ENGAGED IN
OPERATING RETAIL DRUG OR GROCERY STORES.  DERRICK IS THE PROPRIETOR OF
A DRUGSTORE IN ILLINOIS AND OPERATES A "BONDIFIED" AGENCY IN THAT
STORE. 

FEARING ENFORCEMENT AGAINST THEM OF THE PROVISIONS OF THE ACT, THESE
FOUR INDIVIDUALS INSTITUTED THIS SUIT IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AGAINST THE APPELLANTS, WHO
ARE THE AUDITOR OF THE PUBLIC ACCOUNTS OF THE STATE OF ILLINOIS, THE
ATTORNEY GENERAL OF THAT STATE, AND THE STATE'S ATTORNEY OF COOK
COUNTY.  THE COMPLAINT ALLEGED THAT THE ACT VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT IN THAT IT UNLAWFULLY
DISCRIMINATED AGAINST THE COMPLAINANTS AND IN FAVOR OF THE AMERICAN
EXPRESS COMPANY.  AN INJUNCTION AGAINST THE ENFORCEMENT OF THE ACT WAS
SOUGHT.  SINCE THE COMPLAINT ATTACKED THE VALIDITY OF A STATE STATUTE
UNDER THE CONSTITUTION OF THE UNITED STATES, THE CASE WAS HEARD BY A
THREE-JUDGE DISTRICT COURT, PURSUANT TO 28 U.S.C.  SECS. 2281, 2284. 

AFTER HEARING EVIDENCE, THE DISTRICT COURT DISMISSED THE COMPLAINT ON
THE GROUND THAT IT LACKED JURISDICTION TO DETERMINE THE CONSTITUTIONAL
QUESTION IN THE ABSENCE OF AN AUTHORITATIVE DETERMINATION OF THAT
QUESTION BY THE SUPREME COURT OF ILLINOIS.  127 F. SUPP. 853.  ON
APPEAL, THIS COURT HELD THAT THE DISTRICT COURT ERRED IN DISMISSING THE
CASE FOR LACK OF JURISDICTION, AND REMANDED IT TO THE DISTRICT COURT. 
350 U.S. 485. 

ON REMAND, THE DISTRICT COURT CONSIDERED ON THE MERITS THE EVIDENCE
PREVIOUSLY HEARD, AND UNANIMOUSLY HELD THAT THE ACT VIOLATED THE EQUAL
PROTECTION CLAUSE AND THAT APPELLEES WERE ENTITLED TO THE RELIEF
SOUGHT.  146 F. SUPP. 887.  (FN3)  THE DECREE ENJOINED APPELLANTS FROM
ENFORCING THE ACT AGAINST APPELLEES SO LONG AS THEY ENGAGE ONLY IN THE
BUSINESS OF ISSUING AND SELLING MONEY ORDERS.  THE CASE CAME HERE ON
DIRECT APPEAL UNDER 28 U.S.C.  SEC. 1253, AND WE NOTED PROBABLE
JURISDICTION.  352 U.S. 923. 

DURING THE EARLY 1930'S, THE CLOSING OF MANY BANKS IN THE CHICAGO
AREA LED TO THE DEVELOPMENT OF SIMPLE BANKING FACILITIES CALLED
CURRENCY EXCHANGES.  THE PRINCIPAL ACTIVITIES OF THESE EXCHANGES WERE
THE CASHING OF CHECKS FOR A FEE AND THE SELLING OF MONEY ORDERS.  THE
FACT THAT MANY OF THESE EXCHANGES WENT INTO BUSINESS WITHOUT ADEQUATE
CAPITAL AND WITHOUT SUFFICIENT SAFEGUARDS TO PROTECT THE PUBLIC
RESULTED IN THE ENACTMENT OF THE ILLINOIS COMMUNITY CURRENCY EXCHANGES
ACT IN 1943. 

THIS ACT AND ITS AMENDMENTS PROVIDE A COMPREHENSIVE SCHEME FOR THE
LICENSING AND REGULATION OF CURRENCY EXCHANGES.  THE OPERATION OF A
COMMUNITY CURRENCY EXCHANGE WITHOUT A LICENSE IS MADE A CRIME.  SEC.
32.  AN APPLICANT FOR A LICENSE MUST SUBMIT SPECIFIED INFORMATION AND
PAY AN INVESTIGATION FEE OF $25.  SEC. 34.  A LICENSE CANNOT BE ISSUED
UNLESS THE STATE AUDITOR DETERMINES THAT ITS ISSUANCE WILL "PROMOTE THE
CONVENIENCE AND ADVANTAGE OF THE COMMUNITY IN WHICH THE BUSINESS OF THE
APPLICANT IS PROPOSED TO BE CONDUCTED  ...  ."  SEC.  34.1.  (FN4)  A
SURETY BOND OF BETWEEN $3,000 AND $25,000, AND AN INSURANCE POLICY OF
BETWEEN $2,500 AND $35,000 MUST BE FILED.  SECS. 35, 36.  AN ANNUAL
LICENSE FEE OF $50 IS REQUIRED.  SEC. 44. 

A LICENSED EXCHANGE MUST MAINTAIN A MINIMUM OF $3,000 AVAILABLE IN
CASH FOR THE USES AND PURPOSES OF ITS BUSINESS, PLUS AN AMOUNT OF
LIQUID FUNDS SUFFICIENT TO PAY ON DEMAND ALL OUTSTANDING MONEY ORDERS
ISSUED.  SEC. 37.  EACH EXCHANGE MUST BE AN ENTITY, FINANCED AND
CONDUCTED AS A SEPARATE BUSINESS UNIT, AND NOT CONDUCTED AS A
DEPARTMENT OF ANOTHER BUSINESS.  NO COMMUNITY CURRENCY EXCHANGE
"HEREAFTER LICENSED FOR THE FIRST TIME SHALL SHARE ANY ROOM WITH ANY
OTHER BUSINESS, TRADE OR PROFESSION NOR SHALL IT OCCUPY ANY ROOM FROM
WHICH THERE IS DIRECT ACCESS TO A ROOM OCCUPIED BY ANY OTHER BUSINESS,
TRADE OR PROFESSION."  SEC. 38.  ONLY ONE PLACE OF BUSINESS MAY BE
MAINTAINED UNDER ONE LICENSE, ALTHOUGH MORE THAN ONE LICENSE MAY BE
ISSUED TO A LICENSEE.  SEC. 43.  ANNUAL FINANCIAL REPORTS MUST BE
SUBMITTED AND THE STATE AUDITOR HAS A DUTY TO INVESTIGATE EACH EXCHANGE
AT LEAST ONCE A YEAR.  A FEE OF $20 MUST BE PAID FOR EACH DAY OR PART
THEREOF OF INVESTIGATION.  SEC. 46. 

THE FOLLOWING DEFINITION OF A "COMMUNITY CURRENCY EXCHANGE" IS
CRUCIAL TO THIS CASE: 

"'COMMUNITY CURRENCY EXCHANGE' MEANS ANY PERSON, FIRM, ASSOCIATION,
PARTNERSHIP OR CORPORATION, EXCEPT BANKS INCORPORATED UNDER THE LAWS OF
THIS STATE AND NATIONAL BANKS ORGANIZED PURSUANT TO THE LAWS OF THE
UNITED STATES, ENGAGED AT A FIXED AND PERMANENT PLACE OF BUSINESS, IN
THE BUSINESS OR SERVICE OF, AND PROVIDING FACILITIES FOR, CASHING
CHECKS, DRAFTS, MONEY ORDERS OR ANY OTHER EVIDENCES OF MONEY ACCEPTABLE
TO SUCH COMMUNITY CURRENCY EXCHANGE, FOR A FEE OR SERVICE CHARGE OR
OTHER CONSIDERATION, OR ENGAGED IN THE BUSINESS OF SELLING OR ISSUING
MONEY ORDERS UNDER HIS OR THEIR OR ITS NAME, OR ANY OTHER MONEY ORDERS
(OTHER THAN UNITED STATES POST OFFICE MONEY ORDERS, AMERICAN EXPRESS
COMPANY MONEY ORDERS, POSTAL TELEGRAPH COMPANY MONEY ORDERS, OR WESTERN
UNION TELEGRAPH COMPANY MONEY ORDERS), OR ENGAGED IN BOTH SUCH
BUSINESSES, OR ENGAGED IN PERFORMING ANY ONE OR MORE OF THE FOREGOING
SERVICES."  SEC. 31.  (FN5) 

AS THE ACTIVITIES OF APPELLEES CONCEDEDLY COME WITHIN THIS DEFINITION
OF A "COMMUNITY CURRENCY EXCHANGE," THE PARTNERSHIP AND ITS DRUGGIST
AGENT ARE SUBJECT TO THE LICENSING AND REGULATORY PROVISIONS OF THE
ACT.  CONSEQUENTLY, SINCE THE ACT BARS THE SALE OF MONEY ORDERS AS A
PART OF ANOTHER BUSINESS, THE PARTNERSHIP IS PRECLUDED FROM
ESTABLISHING OUTLETS FOR THE SALE OF "BONDIFIED" MONEY ORDERS IN DRUG
AND GROCERY STORES, AND DERRICK IS UNABLE TO SECURE A LICENSE FOR THE
SALE OF THOSE MONEY ORDERS IN HIS STORE.  SEC. 38.  EVEN IF THE
PARTNERSHIP ESTABLISHES OUTLETS WHICH ARE NOT A PART OF OTHER
BUSINESSES, THOSE OUTLETS WILL BE LICENSED TO SELL "BONDIFIED" MONEY
ORDERS ONLY IF THEY SHOW THAT THE "CONVENIENCE AND ADVANTAGE OF THE
COMMUNITY" IN WHICH THEY PROPOSE TO DO BUSINESS WILL BE PROMOTED BY THE
ISSUANCE OF LICENSES TO THEM.  SEC. 34.1.  FINALLY, ANY "BONDIFIED"
OUTLETS WILL EACH HAVE TO PAY THE SPECIFIED LICENSING AND INSPECTION
FEES AND EACH WILL HAVE TO SECURE THE REQUIRED SURETY BOND AND
INSURANCE POLICY. 

THE AMERICAN EXPRESS COMPANY, ON THE OTHER HAND, BECAUSE ITS MONEY
ORDERS ARE EXCEPTED, IS RELIEVED OF THESE LICENSING AND REGULATORY
REQUIREMENTS, AND APPEARS TO BE EXEMPT FROM ANY REGULATION IN
ILLINOIS.  THE AMERICAN EXPRESS COMPANY, AN UNINCORPORATED JOINT STOCK
ASSOCIATION ORGANIZED IN 1868 UNDER THE LAWS OF NEW YORK, CONDUCTS A
WORLD-WIDE BUSINESS WHICH INCLUDES THE SALE OF MONEY ORDERS.  IT SELLS
MONEY ORDERS IN ILLINOIS IN SUBSTANTIALLY THE SAME MANNER AS IS
CONTEMPLATED BY THE "BONDIFIED" PARTNERSHIP, THROUGH AUTHORIZED AGENTS
LOCATED IN DRUG AND GROCERY STORES.  SINCE AMERICAN EXPRESS MONEY
ORDERS ARE NOT SUBJECT TO THE ACT, THEY ARE SOLD LEGALLY IN THOSE
STORES AS A PART OF THEIR BUSINESS.  AMERICAN EXPRESS OUTLETS MAY BE
ESTABLISHED WITHOUT REGARD TO THE "CONVENIENCE AND ADVANTAGE" OF THE
COMMUNITY IN WHICH THEY OPERATE.  FINALLY, THOSE OUTLETS NEED NOT PAY
LICENSING AND INSPECTION FEES NOR FILE SURETY BONDS AND INSURANCE
POLICIES WITH THE STATE. 

IN DETERMINING THE CONSTITUTIONALITY OF THE ACT'S APPLICATION TO
APPELLEES IN THE LIGHT OF ITS EXCEPTION OF AMERICAN EXPRESS MONEY
ORDERS, WE START WITH THE ESTABLISHED PROPOSITION THAT THE "PROHIBITION
OF THE EQUAL PROTECTION CLAUSE GOES NO FURTHER THAN THE INVIDIOUS
DISCRIMINATION."  WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489. 
THE RULES FOR TESTING A DISCRIMINATION HAVE BEEN SUMMARIZED AS
FOLLOWS: 

"1.  THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT
TAKE FROM THE STATE THE POWER TO CLASSIFY IN THE ADOPTION OF POLICE
LAWS, BUT ADMITS OF THE EXERCISE OF A WIDE SCOPE OF DISCRETION IN THAT
REGARD, AND AVOIDS WHAT IS DONE ONLY WHEN IT IS WITHOUT ANY REASONABLE
BASIS AND THEREFORE IS PURELY ARBITRARY.  2.  A CLASSIFICATION HAVING
SOME REASONABLE BASIS DOES NOT OFFEND AGAINST THAT CLAUSE MERELY
BECAUSE IT IS NOT MADE WITH MATHEMATICAL NICETY OR BECAUSE IN PRACTICE
IT RESULTS IN SOME INEQUALITY.  3.  WHEN THE CLASSIFICATION IN SUCH A
LAW IS CALLED IN QUESTION, IF ANY STATE OF FACTS REASONABLY CAN BE
CONCEIVED THAT WOULD SUSTAIN IT, THE EXISTENCE OF THAT STATE OF FACTS
AT THE TIME THE LAW WAS ENACTED MUST BE ASSUMED.  4.  ONE WHO ASSAILS
THE CLASSIFICATION IN SUCH A LAW MUST CARRY THE BURDEN OF SHOWING THAT
IT DOES NOT REST UPON ANY REASONABLE BASIS, BUT IS ESSENTIALLY
ARBITRARY."  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-79. 

TO THESE RULES WE ADD THE CAUTION THAT "DISCRIMINATIONS OF AN UNUSUAL
CHARACTER ESPECIALLY SUGGEST CAREFUL CONSIDERATION TO DETERMINE WHETHER
THEY ARE OBNOXIOUS TO THE CONSTITUTIONAL PROVISION."  LOUISVILLE GAS
CO. V. COLEMAN, 277 U.S. 32, 37-38; HARTFORD CO. V. HARRISON, 301 U.S.
459, 462. 

THE ACT CREATES A STATUTORY CLASS OF SELLERS OF MONEY ORDERS.  THE
MONEY ORDERS SOLD BY ONE COMPANY, AMERICAN EXPRESS, ARE EXCEPTED FROM
THAT CLASS.  THERE IS BUT ONE "AMERICAN EXPRESS COMPANY."  IF THE
EXCEPTION IS TO BE UPHELD, IT MUST BE ON THE BASIS ON WHICH IT IS CAST
AN EXCEPTION OF A PARTICULAR BUSINESS ENTITY AND NOT OF A GENERIC
CATEGORY. 

THE PURPOSE OF THE ACT'S LICENSING AND REGULATORY PROVISIONS CLEARLY
IS TO PROTECT THE PUBLIC WHEN DEALING WITH CURRENCY EXCHANGES.  (FN6)
BECAUSE THE AMERICAN EXPRESS COMPANY IS A WORLD-WIDE ENTERPRISE OF
UNQUESTIONED SOLVENCY AND HIGH FINANCIAL STANDING, THE STATE ARGUES
THAT THE LEGISLATIVE CLASSIFICATION IS REASONABLE.  IT CONTENDS THAT
THE SPECIAL CHARACTERISTICS OF THE AMERICAN EXPRESS COMPANY JUSTIFY
EXCEPTING ITS MONEY ORDERS FROM THE REQUIREMENTS OF AN ACT AIMED AT
LOCAL COMPANIES DOING LOCAL BUSINESS, (FN7) AND THAT APPELLEES ARE IN
NO POSITION TO COMPLAIN ABOUT COMPETITIVE DISADVANTAGES SINCE THE
"FOURTEENTH AMENDMENT DOES NOT PROTECT A BUSINESS AGAINST THE HAZARDS
OF COMPETITION," CITING HEGEMAN FARMS CORP. V. BALDWIN, 293 U.S. 163,
170. 

THAT THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE THAT EVERY STATE
REGULATORY STATUTE APPLY TO ALL IN THE SAME BUSINESS IS A TRUISM.  FOR
EXAMPLE, WHERE SIZE IS AN INDEX TO THE EVIL AT WHICH THE LAW IS
DIRECTED, DISCRIMINATIONS BETWEEN THE LARGE AND THE SMALL ARE
PERMISSIBLE.  (FN8)  MOREOVER, WE HAVE REPEATEDLY RECOGNIZED THAT
"REFORM MAY TAKE ONE STEP AT A TIME, ADDRESSING ITSELF TO THE PHASE OF
THE PROBLEM WHICH SEEMS MOST ACUTE TO THE LEGISLATIVE MIND." 
WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 489.  ON THE OTHER HAND, A
STATUTORY DISCRIMINATION MUST BE BASED ON DIFFERENCES THAT ARE
REASONABLY RELATED TO THE PURPOSES OF THE ACT IN WHICH IT IS FOUND. 
(FN9)  SMITH V. CAHOON, 283 U.S. 553, INVOLVED A STATE STATUTE WHICH
REQUIRED MOTOR VEHICLES, OPERATING ON LOCAL HIGHWAYS AS CARRIERS FOR
HIRE, TO FURNISH BONDS OR INSURANCE POLICIES FOR THE PROTECTION OF THE
PUBLIC AGAINST INJURIES RECEIVED THROUGH NEGLIGENCE IN THESE
OPERATIONS.  THE ACT EXCEPTED MOTOR VEHICLES CARRYING SPECIFIED
PRODUCTS.  THIS COURT HELD THAT THE EXCEPTION VIOLATED THE EQUAL
PROTECTION CLAUSE SINCE THE STATUTORY PURPOSE OF PROTECTING THE PUBLIC
COULD NOT REASONABLY SUPPORT A DISCRIMINATION BETWEEN THE CARRYING OF
EXEMPT PRODUCTS LIKE FARM PRODUCE AND OF REGULATED PRODUCTS LIKE
GROCERIES.  "'SUCH A CLASSIFICATION IS NOT BASED ON ANYTHING HAVING
RELATION TO THE PURPOSE FOR WHICH IT IS MADE.'"  ID., AT 567. 

OF COURSE, DISTINCTIONS IN THE TREATMENT OF BUSINESS ENTITIES ENGAGED
IN THE SAME BUSINESS ACTIVITY MAY BE JUSTIFIED BY GENUINELY DIFFERENT
CHARACTERISTICS OF THE BUSINESS INVOLVED.  (FN10) THIS IS SO EVEN WHERE
THE DISCRIMINATION IS BY NAME.  (FN11)  BUT DISTINCTIONS CANNOT BE SO
JUSTIFIED IF THE "DISCRIMINATION HAS NO REASONABLE RELATION TO THESE
DIFFERENCES."  HARTFORD CO. V. HARRISON, 301 U.S. 459, 463.  IN THAT
CASE, THIS COURT HELD THAT A STATE STATUTE WHICH PERMITTED MUTUAL
INSURANCE COMPANIES TO ACT THROUGH SALARIED RESIDENT EMPLOYEES, BUT
WHICH EXCLUDED STOCK INSURANCE COMPANIES FROM THE SAME PRIVILEGE,
VIOLATED THE EQUAL PROTECTION CLAUSE.    THE PRINCIPLES CONTROLLING IN
THE SMITH AND HARTFORD CO. CASES, SUPRA, ARE APPLICABLE HERE.  THE
PROVISIONS IN THE ILLINOIS ACT, SUCH AS THOSE REQUIRING AN ANNUAL
INSPECTION OF LICENSED COMMUNITY CURRENCY EXCHANGES BY THE STATE
AUDITOR, MAKE IT CLEAR THAT THE STATUTE WAS INTENDED TO AFFORD THE
PUBLIC CONTINUING PROTECTION.  THE DISCRIMINATION IN FAVOR OF THE
AMERICAN EXPRESS COMPANY DOES NOT CONFORM TO THIS PURPOSE.  THE
EXCEPTION OF ITS MONEY ORDERS APPARENTLY RESTS ON THE LEGISLATIVE
HYPOTHESIS THAT THE CHARACTERISTICS OF THE AMERICAN EXPRESS COMPANY
MAKE IT UNNECESSARY TO REGULATE THEIR SALES.  YET THESE SALES, BY
VIRTUE OF THE EXCEPTION, WILL CONTINUE TO BE UNREGULATED WHETHER OR NOT
THE AMERICAN EXPRESS COMPANY RETAINS ITS PRESENT CHARACTERISTICS.  ON
THE OTHER HAND, SELLERS OF COMPETING MONEY ORDERS ARE SUBJECT TO THE
ACT EVEN THOUGH THEIR CHARACTERISTICS ARE, OR BECOME, SUBSTANTIALLY
IDENTICAL WITH THOSE THE AMERICAN EXPRESS COMPANY NOW HAS.  MOREOVER,
THE ACT'S BLANKET EXCEPTION TAKES NO ACCOUNT OF THE CHARACTERISTICS OF
THE LOCAL OUTLETS THAT SELL AMERICAN EXPRESS MONEY ORDERS, AND THE
DISTINCT POSSIBILITY THAT THEY IN THEMSELVES MAY AFFORD LESS PROTECTION
TO THE PUBLIC THAN DO THE RETAIL ESTABLISHMENTS THAT SELL COMPETING
MONEY ORDERS.  THAT THE AMERICAN EXPRESS COMPANY IS A RESPONSIBLE
INSTITUTION OPERATING ON A WORLD-WIDE BASIS DOES NOT MINIMIZE THE FACT
THAT WHEN THE PUBLIC BUYS AMERICAN EXPRESS MONEY ORDERS IN LOCAL DRUG
AND GROCERY STORES IT RELIES IN PART ON THE RELIABILITY OF THE SELLING
AGENTS. 

THE EFFECT OF THE DISCRIMINATION IS TO CREATE A CLOSED CLASS BY
SINGLING OUT AMERICAN EXPRESS MONEY ORDERS.  THE SINGLING OUT OF THE
MONEY ORDERS OF ONE COMPANY IS IN A SENSE THE CONVERSE OF A CASE LIKE
COTTING V. KANSAS CITY STOCK YARDS CO., 183 U.S. 79, 114-115.  SEE
ALSO, MCFARLAND V. AMERICAN SUGAR CO., 241 U.S. 79.  IN THE COTTING
CASE THIS COURT HELD THAT A REGULATORY STATUTE THAT IN FACT APPLIED TO
ONLY ONE STOCKYARD IN A STATE VIOLATED THE EQUAL PROTECTION CLAUSE. 
ALTHOUGH STATUTORY DISCRIMINATIONS CREATING A CLOSED CLASS HAVE BEEN
UPHELD, (FN12) A STATUTE WHICH ESTABLISHED A CLOSED CLASS WAS HELD TO
VIOLATE THE EQUAL PROTECTION CLAUSE WHERE, ON ITS FACE, IT WAS "AN
ATTEMPT TO GIVE AN ECONOMIC ADVANTAGE TO THOSE ENGAGED IN A GIVEN
BUSINESS AT AN ARBITRARY DATE AS AGAINST ALL THOSE WHO ENTER THE
INDUSTRY AFTER THAT DATE."  MAYFLOWER FARMS, INC. V. TEN EYCK, 297 U.S.
266, 274.  THE STATUTE INVOLVED IN THAT CASE GRANTED A DIFFERENTIAL
FROM THE REGULATED PRICE AT WHICH DEALERS COULD SELL MILK TO THOSE
DEALERS IN A SPECIFIED CLASS WHO WERE IN BUSINESS BEFORE APRIL 10,
1933. 

UNLIKE THE AMERICAN EXPRESS COMPANY, APPELLEES AND OTHERS ARE BARRED
FROM SELLING MONEY ORDERS IN RETAIL ESTABLISHMENTS.  EVEN IF COMPETING
OUTLETS CAN SUCCESSFULLY BE ESTABLISHED AS SEPARATE BUSINESSES, THEIR
ABILITY TO SECURE LICENSES DEPENDS UPON A SHOWING OF "CONVENIENCE AND
ADVANTAGE."  PERHAPS SUCH A SHOWING COULD NOT BE MADE BECAUSE THE
UNREGULATED AMERICAN EXPRESS COMPANY HAD ALREADY ESTABLISHED OUTLETS IN
THE COMMUNITY.  AND EVEN IF LICENSES WERE SECURED, THE LICENSEES WOULD
BE REQUIRED TO PAY LICENSING AND INVESTIGATORY FEES AND PURCHASE SURETY
BONDS AND INSURANCE POLICIES - COSTS THAT THE AMERICAN EXPRESS COMPANY
AND ITS AGENTS ARE NOT REQUIRED TO BEAR.  (FN13) THE FACT THAT THE
ACTIVITIES OF THE AMERICAN EXPRESS COMPANY ARE FAR-FLUNG DOES NOT
MINIMIZE THE IMPACT ON LOCAL AFFAIRS AND ON COMPETITORS OF ITS SALE OF
MONEY ORDERS IN ILLINOIS.  THIS IS NOT A CASE IN WHICH THE FOURTEENTH
AMENDMENT IS BEING INVOKED TO PROTECT A BUSINESS FROM THE GENERAL
HAZARDS OF COMPETITION.  THE HAZARDS HERE HAVE THEIR ROOTS IN THE
STATUTORY DISCRIMINATION. 

TAKING ALL OF THESE FACTORS IN CONJUNCTION - THE REMOTE RELATIONSHIP
OF THE STATUTORY CLASSIFICATION TO THE ACT'S PURPOSE OR TO BUSINESS
CHARACTERISTICS, AND THE CREATION OF A CLOSED CLASS BY THE SINGLING OUT
OF THE MONEY ORDERS OF A NAMED COMPANY, WITH ACCOMPANYING ECONOMIC
ADVANTAGES - WE HOLD THAT THE APPLICATION OF THE ACT TO APPELLEES
DEPRIVES THEM OF EQUAL PROTECTION OF THE LAWS.  (FN14) 

THE STATE URGES THAT IF THE EXCEPTION OF AMERICAN EXPRESS MONEY
ORDERS IS UNCONSTITUTIONAL, THE CASE SHOULD BE REMITTED TO THE ILLINOIS
COURTS FOR A DETERMINATION WHETHER THE EXCEPTION CAN BE SEVERED FROM
THE ACT UNDER ITS SEVERABILITY CLAUSE.  SEC. 56.3.  HOWEVER, EVEN IF
SUCH A PROCEDURE IS OTHERWISE APPROPRIATE, (FN15) WE DEEM IT
UNNECESSARY HERE SINCE THE SUPREME COURT OF ILLINOIS HAS INDICATED
RATHER CLEARLY THAT THE EXCEPTION IS NOT SEVERABLE.  (FN16)  THE STATE
ALSO CONTENDS THAT APPELLEES DO NOT COME INTO COURT WITH CLEAN HANDS
AND HAVE NOT DEMONSTRATED THE IMMINENCE OF IRREPARABLE INJURY, AND
HENCE THAT THEY ARE NOT ENTITLED TO EQUITABLE RELIEF.  THESE ARGUMENTS
ARE ADEQUATELY DISPOSED OF IN THE OPINION OF THE DISTRICT COURT. 
(FN17) 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

FN1  ILL. REV. STAT., 1955, C. 16 1/2, SECS. 30-56.3. 

FN2  THE REGISTERED TRADE-MARK "BONDIFIED" IS OWNED BY CHECKS,
INCORPORATED, A MINNESOTA CORPORATION, AND THE PARTNERSHIP, BONDIFIED
SYSTEMS, HAS ACQUIRED AN EXCLUSIVE LICENSE TO USE THAT TRADE-MARK IN
SELLING AND ISSUING MONEY ORDERS. 

FN3  IN SO HOLDING, THE DISTRICT COURT DECLINED TO FOLLOW THE SUPREME
COURT OF ILLINOIS IN SUSTAINING THE ACT AGAINST A SIMILAR ATTACK. 
MCDOUGALL V. LUEDER, 389 ILL. 141, 58 N.E.2D 899.  IT ACCEPTED INSTEAD
THE PRECEDENT OF A THREE-JUDGE FEDERAL DISTRICT COURT IN WISCONSIN
WHICH HAD HELD UNCONSTITUTIONAL AN IDENTICAL PROVISION OF A WISCONSIN
STATUTE.  CURRENCY SERVICES, INC. V. MATTHEWS, 90 F. SUPP. 40. 

FN4  SEE GADLIN V. AUDITOR OF PUBLIC ACCOUNTS, 414 ILL. 89, 110
N.E.2D 234. 

FN5  APPELLEES DO NOT QUESTION THE EXCEPTION FROM THE ACT OF THE
MONEY ORDERS OF THE UNITED STATES POST OFFICE, THE POSTAL TELEGRAPH
COMPANY AND THE WESTERN UNION TELEGRAPH COMPANY.  IN CURRENCY SERVICES,
INC. V. MATTHEWS, 90 F. SUPP. 40, 43, A THREE-JUDGE DISTRICT COURT
UPHELD THE EXCEPTION OF THESE MONEY ORDERS FROM A SIMILAR WISCONSIN
STATUTE.  THE COURT CONCLUDED THAT THE STATE WAS WITHOUT AUTHORITY TO
REGULATE THE SALE OF THE UNITED STATES POST OFFICE MONEY ORDERS, AND
THAT THE EXCEPTION OF WESTERN UNION MONEY ORDERS WAS REASONABLE SINCE
THAT COMPANY WAS REGULATED BOTH BY THE FEDERAL COMMUNICATIONS
COMMISSION AND BY A STATE COMMISSION.  IT NOTED THAT THE POSTAL
TELEGRAPH COMPANY HAS MERGED WITH THE WESTERN UNION TELEGRAPH COMPANY. 

FN6  SEE MCDOUGALL V. LUEDER, 389 ILL. 141, 149-150, 58 N.E.2D 899,
903-904; WILLIS V. FIDELITY & DEPOSIT CO., 345 ILL. APP. 373, 384-385,
103 N.E.2D 513, 518-519. 

FN7  SEE MCDOUGALL V. LUEDER, 389 ILL. 141, 151, 58 N.E.2D 899, 904. 

FN8  SEE ENGEL V. O'MALLEY, 219 U.S. 128, 138 (EXCEPTION OF
BUSINESSES IN WHICH THE AVERAGE SUM RECEIVED FOR SAFEKEEPING OR
TRANSMISSION WAS MORE THAN $500 FROM LICENSING REQUIREMENTS INTENDED TO
PROTECT THE SMALL DEPOSITOR); SEE ALSO, NEW YORK, N.H.&H.R.  CO. V. NEW
YORK, 165 U.S. 628 (EXCEPTION OF RAILROADS LESS THAN 50 MILES IN LENGTH
FROM A STATUTE REGULATING THE HEATING OF RAILROAD PASSENGER CARS AND
THE PLACING OF GUARDS AND GUARD POSTS ON RAILROAD BRIDGES); MILLER V.
STRAHL, 239 U.S. 426 (EXCEPTION OF HOTELS WITH LESS THAN 50 ROOMS FROM
A STATUTE REQUIRING HOTELKEEPERS TO TAKE CERTAIN FIRE PRECAUTIONS). 

FN9  SEE F.S. ROYSTER GUANO CO. V. VIRGINIA, 253 U.S. 412, 415;
LOUISVILLE GAS CO. V. COLEMAN, 277 U.S. 32, 37. 

FN10  SEE GERMAN ALLIANCE INS. CO. V. LEWIS, 233 U.S. 389 (EXCEPTION
OF FARMERS' MUTUAL INSURANCE COMPANIES DOING ONLY FARM BUSINESS FROM A
STATUTE ESTABLISHING RATE REGULATION FOR FIRE INSURANCE COMPANIES);
HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313 (DIFFERENT REGULATORY
REQUIREMENTS FOR RECIPROCALS AND MUTUAL COMPANIES). 

FN11  SEE ERB V. MORASCH, 177 U.S. 584 (EXCEPTION OF A NAMED RAILROAD
FROM AN ORDINANCE LIMITING THE SPEED OF TRAINS IN A CITY); CF. WILLIAMS
V. MAYOR, 289 U.S. 36. 

FN12  SEE WATSON V. MARYLAND, 218 U.S. 173 (EXCEPTION OF PHYSICIANS
WHO PRACTICED PRIOR TO A SPECIFIED DATE AND TREATED AT LEAST 12 PERSONS
WITHIN A YEAR PRIOR THERETO FROM EXAMINATION AND CERTIFICATE
REQUIREMENTS); SAMPERE V. NEW ORLEANS, 166 LA. 776, 117 SO.  827, AFF'D
PER CURIAM, 279 U.S. 812 (EXCEPTION OF EXISTING BUSINESS ESTABLISHMENTS
FROM A ZONING RESTRICTION); STANLEY V. PUBLIC UTILITIES COMMISSION, 295
U.S. 76 (EXCEPTION OF CARRIERS WHICH HAD FURNISHED ADEQUATE,
RESPONSIBLE AND CONTINUOUS SERVICE OVER A GIVEN ROUTE FROM A SPECIFIED
DATE IN THE PAST FROM THE REQUIREMENT OF SHOWING PUBLIC CONVENIENCE AND
NECESSITY TO SECURE A LICENSE). 

FN13  SEE CURRENCY SERVICES, INC. V. MATTHEWS, 90 F. SUPP. 40, 44, N.
2, TO THE EFFECT THAT COSTS SUCH AS THESE MAY BE PROHIBITIVE. 

FN14  IN WEDESWEILER V. BRUNDAGE, 297 ILL. 228, 130 N.E. 520, THE
SUPREME COURT OF ILLINOIS HELD THAT THE EQUAL PROTECTION CLAUSE WAS
VIOLATED BY A STATUTE WHICH EXCEPTED EXPRESS, STEAMSHIP AND TELEGRAPH
COMPANIES FROM ITS PROHIBITION AGAINST THE TRANSMISSION OF MONEY TO
FOREIGN COUNTRIES BY NATURAL PERSONS, FIRMS OR PARTNERSHIPS.  THAT
COURT CONCLUDED THAT THE DISCRIMINATION "HAS NO REFERENCE TO CHARACTER,
SOLVENCY, FINANCIAL RESPONSIBILITY, SECURITY, BUSINESS OR MONETARY
FACILITIES, INCORPORATION, METHOD OF DOING BUSINESS, PUBLIC INSPECTION,
SUPERVISION OR REPORT, OR ANY OTHER THING HAVING ANY RELATION TO THE
PROTECTION OF THE PUBLIC FROM LOSS BY REASON OF THE DISHONESTY,
INCOMPETENCE, IGNORANCE OR IRRESPONSIBILITY OF PERSONS ENGAGING IN THAT
BUSINESS."  297 ILL., AT 237, 130 N.E., AT 523.  SEE ALSO, STATE ON
INF.  TAYLOR V. CURRENCY SERVICES, INC., 358 MO. 983, 218 S.W. 600. 

THE WEDESWEILER CASE WAS DISTINGUISHED BY THE SUPREME COURT OF
ILLINOIS IN MCDOUGALL V. LUEDER, 389 ILL. 141, 150, 58 N.E.2D 899, 904,
ON THE GROUND THAT IN THE EARLIER CASE THE REGULATED FIRMS WERE "IN
DIRECT COMPETITION" WITH THE EXCEPTED COMPANIES.  APPARENTLY THE COURT
TREATED THE REGULATED FIRM IN THE MCDOUGALL CASE AS NOT BEING IN DIRECT
COMPETITION WITH THE AMERICAN EXPRESS COMPANY SINCE THE FIRM WAS
ENGAGED IN THE BUSINESS OF CASHING CHECKS, AS WELL AS IN THAT OF
SELLING MONEY ORDERS, WHILE THE AMERICAN EXPRESS COMPANY MERELY SOLD
MONEY ORDERS.  SUCH A DISTINCTION IS NOT INVOLVED IN THE FACTS OF THIS
CASE AND WE EXPRESS NO OPINION ON IT. 

FN15  SEE GUINN V. UNITED STATES, 238 U.S. 347, 366; MYERS V.
ANDERSON, 238 U.S. 368, 380-381; DORCHY V. KANSAS, 264 U.S. 286, 291. 

FN16  IN MCDOUGALL V. LUEDER, 389 ILL. 141, 151, 58 N.E.2D 899, 904,
THE SUPREME COURT OF ILLINOIS STATED THAT "THE GENERAL ASSEMBLY WOULD
SURELY NEVER HAVE PASSED THE ACT IF THEY HAD THOUGHT THAT THE SAID
COMPANIES (WESTERN UNION, POSTAL TELEGRAPH AND AMERICAN EXPRESS) WOULD
BE MADE SUBJECT TO ITS RULES AND REGULATIONS."  THIS STATEMENT TAKES ON
ADDED SIGNIFICANCE IN THE LIGHT OF THE COURT'S RULING IN THE SAME CASE
THAT ANOTHER PROVISION OF THE ACT, WHICH IT HELD INVALID, COULD BE
SEVERED SINCE "THERE IS NO PRESUMPTION THAT THE GENERAL ASSEMBLY WOULD
NOT HAVE ENACTED THE REMAINDER OF THE STATUTE WITHOUT" THE INVALID
PROVISION.  389 ILL., AT 155, 58 N.E.2D, AT 906. 

AS THE QUESTION OF SEVERABILITY IS A QUESTION OF STATE LAW, THE
JUDGMENT OF THE SUPREME COURT OF ILLINOIS IS BINDING HERE.  SEE DORCHY
V. KANSAS, 264 U.S. 286, 290; CHAS. WOLFF PACKING CO. V. COURT OF
INDUSTRIAL RELATIONS, 267 U.S. 552, 562. 

FN17  SEE DOUD V. HODGE, 146 F. SUPP. 887, 889-890. 

MR. JUSTICE BLACK, DISSENTING. 

THE ILLINOIS STATUTE INVOLVED HERE PROVIDES A STATE-WIDE REGULATORY
PLAN TO PROTECT THE PUBLIC FROM IRRESPONSIBLE AND INSOLVENT SELLERS OF
MONEY ORDERS.  THE ACT SPECIFICALLY EXEMPTS THE AMERICAN EXPRESS
COMPANY'S MONEY ORDERS FROM ITS REGULATORY PROVISIONS BECAUSE, AS THE
COURT RECOGNIZES, THAT COMPANY "IS A WORLD-WIDE ENTERPRISE OF
UNQUESTIONED SOLVENCY AND HIGH FINANCIAL STANDING."  I CANNOT AGREE
WITH THE COURT THAT THIS EXEMPTION DENIES ACTUAL AND POTENTIAL
COMPETITORS OF THE AMERICAN EXPRESS COMPANY EQUAL PROTECTION OF THE
LAWS WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT.  ONLY RECENTLY
THIS COURT HELD THAT "THE PROHIBITION OF THE EQUAL PROTECTION CLAUSE
GOES NO FURTHER THAN THE INVIDIOUS DISCRIMINATION."  WILLIAMSON V. LEE
OPTICAL OF OKLAHOMA, INC., 348 U.S. 483, 489.  AND HERE, WHATEVER ONE
MAY THINK OF THE MERITS OF THIS LEGISLATION, ITS EXEMPTION OF A COMPANY
OF KNOWN SOLVENCY FROM A SOLVENCY TEST APPLIED TO OTHERS OF UNKNOWN
FINANCIAL RESPONSIBILITY CAN HARDLY BE CALLED "INVIDIOUS."  UNLESS
STATE LEGISLATURES HAVE POWER TO MAKE DISTINCTIONS THAT ARE NOT PLAINLY
UNREASONABLE, THEN THE ABILITY OF THE STATES TO PROTECT THEIR CITIZENS
BY REGULATING BUSINESS WITHIN THEIR BOUNDARIES CAN BE SERIOUSLY
IMPAIRED.  I FEEL IT NECESSARY TO EXPRESS ONCE AGAIN MY OBJECTION TO
THE USE OF GENERAL PROVISIONS OF THE CONSTITUTION TO RESTRICT NARROWLY
STATE POWER OVER STATE DOMESTIC ECONOMIC AFFAIRS.  (FN1) 

I THINK STATE REGULATION SHOULD BE VIEWED QUITE DIFFERENTLY WHERE IT
TOUCHES OR INVOLVES FREEDOM OF SPEECH, PRESS, RELIGION, PETITION,
ASSEMBLY, OR OTHER SPECIFIC SAFEGUARDS OF THE BILL OF RIGHTS.  IT IS
THE DUTY OF THIS COURT TO BE ALERT TO SEE THAT THESE CONSTITUTIONALLY
PREFERRED RIGHTS ARE NOT ABRIDGED.  (FN2)  BUT THE ILLINOIS STATUTE
HERE DOES NOT INVOLVE ANY OF THESE BASIC LIBERTIES.  AND SINCE I
BELIEVE THAT IT IS NOT "INVIDIOUSLY DISCRIMINATORY," I WOULD NOT HOLD
IT INVALID. 

FN1  SEE, E.G., MY DISSENTS IN H.P. HOOD & SONS V. DU MOND, 336 U.S.
525, 562-564; MAGNOLIA PETROLEUM CO. V. HUNT, 320 U.S. 430, 462;
ADAMSON V. CALIFORNIA, 332 U.S. 46, 79-84.  CF. TIGNER V. TEXAS, 310
U.S. 141; AMERICAN SUGAR REFINING CO. V. LOUISIANA, 179 U.S. 89, 92;
SLAUGHTER-HOUSE CASES, 16 WALL.  36, 81-82.    FN2  SCHNEIDER V. STATE,
308 U.S. 147, 161.  AND SEE MY DISSENTING OPINIONS IN BEAUHARNAIS V.
ILLINOIS, 343 U.S. 250, 267, AND FELDMAN V. UNITED STATES, 322 U.S.
487, 494.  CF. KOTCH V. BOARD OF RIVER PORT PILOT COMM'RS, 330 U.S.
552, 556; AND MY CONCURRING OPINION IN OYAMA V. CALIFORNIA, 332 U.S.
633, 647. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE SOLE QUESTION BEFORE THE COURT IS WHETHER THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION, IN PROHIBITING A STATE
FROM DENYING ANY PERSON "THE EQUAL PROTECTION OF THE LAWS," HAS BARRED
ILLINOIS FROM FORMULATING ITS DOMESTIC POLICY AS IT DID, IN AN AREA
CONCEDEDLY WITHIN THE REGULATORY POWER OF THAT STATE.  AS IS USUALLY
TRUE OF QUESTIONS ARISING UNDER THE EQUAL PROTECTION CLAUSE, THE ANSWER
WILL TURN ON THE WAY IN WHICH THAT CLAUSE IS CONCEIVED.  IT IS BECAUSE
OF DIFFERENCES IN JUDICIAL APPROACH THAT THE DIVISIONS IN THE COURT IN
APPLYING THE CLAUSE HAVE BEEN FREQUENT AND MARKED.  IT IS, I BELIEVE,
ACCURATE TO SUMMARIZE THE MATTER BY SAYING THAT THE GREAT DIVIDE IN THE
DECISIONS LIES IN THE DIFFERENCE BETWEEN EMPHASIZING THE ACTUALITIES OR
THE ABSTRACTIONS OF LEGISLATION. 

THE MORE COMPLICATED SOCIETY BECOMES, THE GREATER THE DIVERSITY OF
ITS PROBLEMS AND THE MORE DOES LEGISLATION DIRECT ITSELF TO THE
DIVERSITIES.  STATUTES, THAT IS, ARE DIRECTED TO LESS THAN UNIVERSAL
SITUATIONS.  LAW REFLECTS DISTINCTIONS THAT EXIST IN FACT OR AT LEAST
APPEAR TO EXIST IN THE JUDGMENT OF LEGISLATORS - THOSE WHO HAVE THE
RESPONSIBILITY FOR MAKING LAW FIT FACT.  LEGISLATION IS ESSENTIALLY
EMPIRIC.  IT ADDRESSES ITSELF TO THE MORE OR LESS CRUDE OUTSIDE WORLD
AND NOT TO THE NEAT, LOGICAL MODELS OF THE MIND.  CLASSIFICATION IS
INHERENT IN LEGISLATION; THE EQUAL PROTECTION CLAUSE HAS NOT FORBIDDEN
IT.  TO RECOGNIZE MARKED DIFFERENCES THAT EXIST IN FACT IS LIVING LAW;
TO DISREGARD PRACTICAL DIFFERENCES AND CONCENTRATE ON SOME ABSTRACT
IDENTITIES IS LIFELESS LOGIC. 

THE CONTROLLING IMPORTANCE OF THE DIFFERENCES IN APPROACH TO A
PROBLEM ARISING UNDER THE EQUAL PROTECTION CLAUSE IS SHARPLY
ILLUSTRATED BY ONE'S VIEW OF THE DECISIONS IN CASES LIKE LOUISVILLE GAS
CO. V. COLEMAN, 277 U.S. 32, AND HARTFORD CO. V. HARRISON, 301 U.S.
459.  THE COURT RELIES ON THEM.  FOR ME THEY ARE FALSE LEADS.  BOTH
THESE DECISIONS PREVAILED BY THE NARROWEST MARGIN; BOTH EVOKED POWERFUL
DISSENTS; BOTH MANIFEST THE REQUIREMENT OF NONDISCRIMINATORY
CLASSIFICATION AS AN EXERCISE IN LOGICAL ABSTRACTIONS.  THEY BREATHE
THE SPIRIT OF DECISIONS LIKE CONNOLLY V. UNION SEWER PIPE CO., 184 U.S.
540, AND COLGATE V. HARVEY, 296 U.S. 404, WHICH WERE RESPECTIVELY
OVERRULED IN TIGNER V. TEXAS, 310 U.S. 141, AND MADDEN V. KENTUCKY, 309
U.S. 83.  THE LAST TWO CASES HEEDED THE ADMONITION THAT "IT IS
IMPORTANT FOR THIS COURT TO AVOID EXTRACTING FROM THE VERY GENERAL
LANGUAGE OF THE FOURTEENTH AMENDMENT A SYSTEM OF DELUSIVE EXACTNESS
...  ."  LOUISVILLE & NASHVILLE R. CO. V. BARBER ASPHALT CO., 197 U.S.
430, 434. 

IN REGULATING ITS BANKING FACILITIES, ILLINOIS WAS DRAWING ON ONE OF
THE OLDEST AND MOST FAR-REACHING OF LEGISLATIVE POWERS.  THE PUBLIC
NEEDS TO BE PROTECTED IN THE ISSUING AND SELLING OF MONEY ORDERS, AND
PEOPLE WITHIN LIMITED MEANS ARE ESPECIALLY TO BE SAFEGUARDED.  IF
ILLINOIS CHOSE, THE STATE ITSELF COULD TAKE OVER THE MONEY ORDER
BUSINESS.  SEE NOBLE STATE BANK V. HASKELL, 219 U.S. 104, 113.  JUST AS
IT WAS FOUND THAT THERE WAS NOTHING IN THE CONSTITUTION OF THE UNITED
STATES TO BAR A STATE FROM ENGAGING IN THE BUSINESSES OF MANUFACTURING
AND MARKETING FARM PRODUCTS AND OF PROVIDING HOMES FOR ITS PEOPLE,
GREEN V. FRAZIER, 253 U.S. 233, SO, SURELY, THERE IS NOTHING TO PREVENT
ILLINOIS FROM ENGAGING IN THIS BUSINESS DIRECTLY, OR THROUGH A MONEY
DISPENSARY SIMILAR TO THE MODE BY WHICH SOME STATES ENGAGE IN THE
LIQUOR BUSINESS.  I KNOW OF NOTHING IN THE FOURTEENTH AMENDMENT THAT
WOULD BAR THE STATE FROM DISCHARGING ITS RESPONSIBILITY TO ITS CITIZENS
BY HAVING THE BUSINESS CONDUCTED BY WHAT THE COURT RECOGNIZES TO BE "A
WORLD-WIDE ENTERPRISE OF UNQUESTIONED SOLVENCY AND HIGH FINANCIAL
STANDING," TO WIT, THE AMERICAN EXPRESS CO. 

I REGRETFULLY FIND MYSELF UNABLE TO APPRECIATE WHY THE STATE, INSTEAD
OF THUS DEALING WITH THE PROBLEM, MAY NOT CHOOSE TO ALLOW SMALL UNITS
TO CARRY ON A BUSINESS SO FRAUGHT WITH PUBLIC INTERESTS UNDER THE
REGULATIONS DEVISED BY THE STATUTE UNDER REVIEW, WHILE AT THE SAME TIME
IT FINDS SUCH MEASURES OF CONTROL NEEDLESS IN A CASE OF "A WORLD-WIDE
ENTERPRISE OF UNQUESTIONED SOLVENCY AND HIGH FINANCIAL STANDING."  THE
RATIONAL DIFFERENTIATION IS OF COURSE THAT THE LATTER ENTERPRISE
CONTAINS WITHIN ITSELF, IN THE JUDGMENT OF ILLINOIS, THE NECESSARY
SAFEGUARDS FOR SOLVENCY AND RELIABILITY IN ISSUING MONEY ORDERS AND
REDEEMING THEM.  SURELY THIS IS A DISTINCTION OF SIGNIFICANCE IN FACT
THAT THE LAW CANNOT VIEW WITH A GLASS EYE. 

BUT IT IS SUGGESTED THAT THE AMERICAN EXPRESS CO. MAY NOT CONTINUE TO
RETAIN "ITS PRESENT CHARACTERISTICS," WHILE SELLERS OF COMPETING MONEY
ORDERS MAY CONTINUE TO BE SUBJECT TO THE ACT, EVEN THOUGH THEIR
CHARACTERISTICS BECOME "SUBSTANTIALLY IDENTICAL WITH THOSE THE AMERICAN
EXPRESS CO. NOW HAS."  WHAT IS THIS BUT TO DENY A STATE THE RIGHT TO
LEGISLATE ON THE BASIS OF CIRCUMSTANCES THAT EXIST BECAUSE A STATE MAY
NOT IN SPECULATIVELY DIFFERENT CIRCUMSTANCES THAT MAY NEVER COME TO
PASS HAVE SUCH RIGHT?  SURELY THERE IS TIME ENOUGH TO STRIKE DOWN
LEGISLATION WHEN ITS CONSTITUTIONAL JUSTIFICATION IS GONE. 
INVALIDATING LEGISLATION IS SERIOUS BUSINESS AND IT OUGHT NOT TO BE
INDULGED IN BECAUSE IN A SITUATION NOT NOW BEFORE THE COURT, NOR EVEN
REMOTELY PROBABLE, A VALID STATUTE MAY LOSE ITS FOUNDATION.  THE COURT
HAS HAD OCCASION TO DEAL WITH SUCH CONTINGENCY MORE THAN ONCE. 
REGULATORY MEASURES HAVE BEEN SUSTAINED THAT LATER, IN CHANGED
CIRCUMSTANCES, WERE FOUND TO BE UNCONSTITUTIONAL.  COMPARE WILLCOX V.
CONSOLIDATED GAS CO., 212 U.S. 19, WITH NEWTON V. CONSOLIDATED GAS CO.,
258 U.S. 165, AND BLOCK V. HIRSH, 256 U.S. 135, WITH CHASTLETON CORP.
V. SINCLAIR, 264 U.S. 543. 

"'LEGISLATION WHICH REGULATES BUSINESS MAY WELL MAKE DISTINCTIONS
DEPEND UPON THE DEGREE OF EVIL.'  HEATH & MILLIGAN MFG. CO. V. WORST,
207 U.S. 338, 355, 356.  IT IS TRUE, NO DOUBT, THAT WHERE SIZE IS NOT
AN INDEX TO AN ADMITTED EVIL THE LAW CANNOT DISCRIMINATE BETWEEN THE
GREAT AND SMALL.  BUT IN THIS CASE SIZE IS AN INDEX."  ENGEL V.
O'MALLEY, 219 U.S. 128, 138.  NEITHER THE RECORD NOR OUR OWN JUDICIAL
INFORMATION AFFORDS ANY BASIS FOR CONCLUDING THAT ILLINOIS MAY NOT PUT
THE UNITED STATES POST OFFICE, THE WESTERN UNION CO., AND THE AMERICAN
EXPRESS CO. IN ONE CLASS AND ALL THE OTHER MONEY ORDER ISSUERS IN
ANOTHER.  ILLINOIS MAY NOT THE LESS RELIEVE THE AMERICAN EXPRESS CO.
FROM REGULATIONS TO WHICH MULTITUDINOUS SMALL ISSUERS ARE SUBJECT
BECAUSE THAT COMPANY HAS ITS OWN RELIABILITIES THAT MAY WELL BE
DIFFERENT FROM THOSE OF THE UNITED STATES POST OFFICE AND THE WESTERN
UNION TELEGRAPH CO. THE VITAL FACT IS THAT THE AMERICAN EXPRESS CO. IS
DECISIVELY DIFFERENT FROM THOSE MONEY ORDER ISSUERS THAT ARE WITHIN THE
REGULATORY SCHEME. 

SOCIOLOGICALLY ONE MAY THINK WHAT ONE MAY OF THE STATE'S RECOGNITION
OF THE SPECIAL FINANCIAL POSITION OBVIOUSLY ENJOYED BY THE AMERICAN
EXPRESS CO. WHATEVER ONE MAY THINK IS NONE OF THIS COURT'S BUSINESS. 
IN APPLYING THE EQUAL PROTECTION CLAUSE, WE MUST BE FASTIDIOUSLY
CAREFUL TO OBSERVE THE ADMONITION OF MR. JUSTICE BRANDEIS, MR. JUSTICE
STONE, AND MR. JUSTICE CARDOZO THAT WE DO NOT "SIT AS A SUPER
LEGISLATURE."  (SEE THEIR DISSENTING OPINION IN THE ILL-FATED CASE OF
COLGATE V. HARVEY, 296 U.S. 404, 441.  SEE ALSO ASBURY HOSPITAL V. CASS
COUNTY, 326 U.S. 207, 214-215.) 
..END :





ROTH V. UNITED STATES 354 U.S. 476 


NO. 582.  ARGUED APRIL 22, 1957 - DECIDED JUNE 24, 1957.* - 237 F.2D
796, AFFIRMED.  - 138 CAL. APP. 2D SUPP. 909, 292 P.2D 90, AFFIRMED. 

*TOGETHER WITH NO. 61, ALBERTS V. CALIFORNIA, APPEAL FROM THE
SUPERIOR COURT OF CALIFORNIA, LOS ANGELES COUNTY, APPELLATE DEPARTMENT,
ARGUED AND DECIDED ON THE SAME DATES. 


1.  IN THE ROTH CASE, THE CONSTITUTIONALITY OF 18 U.S.C. SEC. 1461,
WHICH MAKES PUNISHABLE THE MAILING OF MATERIAL THAT IS "OBSCENE, LEWD,
LASCIVIOUS, OR FILTHY  ...  OR OTHER PUBLICATION OF AN INDECENT
CHARACTER," AND ROTH'S CONVICTION THEREUNDER FOR MAILING AN OBSCENE
BOOK AND OBSCENE CIRCULARS AND ADVERTISING, ARE SUSTAINED.  PP. 479
494. 

2.  IN THE ALBERTS CASE, THE CONSTITUTIONALITY OF SEC. 311 OF WEST'S
CALIFORNIA PENAL CODE ANN., 1955, WHICH, INTER ALIA, MAKES IT A
MISDEMEANOR TO KEEP FOR SALE, OR TO ADVERTISE, MATERIAL THAT IS
"OBSCENE OR INDECENT," AND ALBERTS' CONVICTION THEREUNDER FOR LEWDLY
KEEPING FOR SALE OBSCENE AND INDECENT BOOKS AND FOR WRITING, COMPOSING,
AND PUBLISHING AN OBSCENE ADVERTISEMENT OF THEM, ARE SUSTAINED.  PP.
479-494. 

3.  OBSCENITY IS NOT WITHIN THE AREA OF CONSTITUTIONALLY PROTECTED
FREEDOM OF SPEECH OR PRESS - EITHER (1) UNDER THE FIRST AMENDMENT, AS
TO THE FEDERAL GOVERNMENT, OR (2) UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, AS TO THE STATES.  PP. 481-485. 

(A)  IN THE LIGHT OF HISTORY, IT IS APPARENT THAT THE UNCONDITIONAL
PHRASING OF THE FIRST AMENDMENT WAS NOT INTENDED TO PROTECT EVERY
UTTERANCE.  PP. 482-483. 

(B)  THE PROTECTION GIVEN SPEECH AND PRESS WAS FASHIONED TO ASSURE
UNFETTERED INTERCHANGE OF IDEAS FOR THE BRINGING ABOUT OF POLITICAL AND
SOCIAL CHANGES DESIRED BY THE PEOPLE.  P. 484. 

(C)  ALL IDEAS HAVING EVEN THE SLIGHTEST REDEEMING SOCIAL IMPORTANCE
UNORTHODOX IDEAS, CONTROVERSIAL IDEAS, EVEN IDEAS HATEFUL TO THE
PREVAILING CLIMATE OF OPINION - HAVE THE FULL PROTECTION OF THE
GUARANTIES, UNLESS EXCLUDABLE BECAUSE THEY ENCROACH UPON THE LIMITED
AREA OF MORE IMPORTANT INTERESTS; BUT IMPLICIT IN THE HISTORY OF THE
FIRST AMENDMENT IS THE REJECTION OF OBSCENITY AS UTTERLY WITHOUT
REDEEMING SOCIAL IMPORTANCE.  PP. 484-485. 

4.  SINCE OBSCENITY IS NOT PROTECTED, CONSTITUTIONAL GUARANTIES WERE
NOT VIOLATED IN THESE CASES MERELY BECAUSE, UNDER THE TRIAL JUDGES'
INSTRUCTIONS TO THE JURIES, CONVICTIONS COULD BE HAD WITHOUT PROOF
EITHER THAT THE OBSCENE MATERIAL WOULD PERCEPTIBLY CREATE A CLEAR AND
PRESENT DANGER OF ANTISOCIAL CONDUCT, OR PROBABLY WOULD INDUCE ITS
RECIPIENTS TO SUCH CONDUCT.  BEAUHARNAIS V. ILLINOIS, 343 U.S. 250. 
PP. 485-490. 

(A)  SEX AND OBSCENITY ARE NOT SYNONYMOUS.  OBSCENE MATERIAL IS
MATERIAL WHICH DEALS WITH SEX IN A MANNER APPEALING TO PRURIENT
INTEREST - I.E., MATERIAL HAVING A TENDENCY TO EXCITE LUSTFUL
THOUGHTS.   P. 487. 

(B)  IT IS VITAL THAT THE STANDARDS FOR JUDGING OBSCENITY SAFEGUARD
THE PROTECTION OF FREEDOM OF SPEECH AND PRESS FOR MATERIAL WHICH DOES
NOT TREAT SEX IN A MANNER APPEALING TO PRURIENT INTEREST.  PP. 487
488. 

(C)  THE STANDARD FOR JUDGING OBSCENITY, ADEQUATE TO WITHSTAND THE
CHARGE OF CONSTITUTIONAL INFIRMITY, IS WHETHER, TO THE AVERAGE PERSON,
APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT THEME OF THE
MATERIAL, TAKEN AS A WHOLE, APPEALS TO PRURIENT INTEREST.  PP. 488
489. 

(D)  IN THESE CASES, BOTH TRIAL COURTS SUFFICIENTLY FOLLOWED THE
PROPER STANDARD AND USED THE PROPER DEFINITION OF OBSCENITY.  PP. 489
490. 

5.  WHEN APPLIED ACCORDING TO THE PROPER STANDARD FOR JUDGING
OBSCENITY, 18 U.S.C. SEC. 1461, WHICH MAKES PUNISHABLE THE MAILING OF
MATERIAL THAT IS "OBSCENE, LEWD, LASCIVIOUS, OR FILTHY  ... OR OTHER
PUBLICATION OF AN INDECENT CHARACTER," DOES NOT (1) VIOLATE THE FREEDOM
OF SPEECH OR PRESS GUARANTEED BY THE FIRST AMENDMENT, OR (2) VIOLATE
THE CONSTITUTIONAL REQUIREMENTS OF DUE PROCESS BY FAILING TO PROVIDE
REASONABLY ASCERTAINABLE STANDARDS OF GUILT.  PP. 491-492. 

6.  WHEN APPLIED ACCORDING TO THE PROPER STANDARD FOR JUDGING
OBSCENITY, SEC. 311 OF WEST'S CALIFORNIA PENAL CODE ANN., 1955, WHICH,
INTER ALIA, MAKES IT A MISDEMEANOR TO KEEP FOR SALE OR TO ADVERTISE
MATERIAL THAT IS "OBSCENE OR INDECENT," DOES NOT (1) VIOLATE THE
FREEDOM OF SPEECH OR PRESS GUARANTEED BY THE FOURTEENTH AMENDMENT
AGAINST ENCROACHMENT BY THE STATES, OR (2) VIOLATE THE CONSTITUTIONAL
REQUIREMENTS OF DUE PROCESS BY FAILING TO PROVIDE REASONABLY
ASCERTAINABLE STANDARDS OF GUILT.  491-492. 

7.  THE FEDERAL OBSCENITY STATUTE, 18 U.S.C. SEC. 1461, PUNISHING THE
USE OF THE MAILS FOR OBSCENE MATERIAL, IS A PROPER EXERCISE OF THE
POSTAL POWER DELEGATED TO CONGRESS BY ART. I, SEC. 8, CL. 7; AND IT
DOES NOT UNCONSTITUTIONALLY ENCROACH UPON THE POWERS RESERVED TO THE
STATES BY THE NINTH AND TENTH AMENDMENTS.  PP. 492-493. 

8.  THE CALIFORNIA OBSCENITY STATUTE HERE INVOLVED IS NOT REPUGNANT
TO ART. I, SEC. 8, CL. 7, SINCE IT DOES NOT IMPOSE A BURDEN UPON, OR
INTERFERE WITH, THE FEDERAL POSTAL FUNCTIONS - EVEN WHEN APPLIED TO A
MAIL-ORDER BUSINESS.  PP. 493-494. 

ROTH V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE CONSTITUTIONALITY OF A CRIMINAL OBSCENITY STATUTE IS THE QUESTION
IN EACH OF THESE CASES.  IN ROTH, THE PRIMARY CONSTITUTIONAL QUESTION
IS WHETHER THE FEDERAL OBSCENITY STATUTE (FN1) VIOLATES THE PROVISION
OF THE FIRST AMENDMENT THAT "CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING
THE FREEDOM OF SPEECH, OR OF THE PRESS  ...  ."  IN ALBERTS, THE
PRIMARY CONSTITUTIONAL QUESTION IS WHETHER THE OBSCENITY PROVISIONS OF
THE CALIFORNIA PENAL CODE (FN2) INVADE THE FREEDOMS OF SPEECH AND PRESS
AS THEY MAY BE INCORPORATED IN THE LIBERTY PROTECTED FROM STATE ACTION
BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

OTHER CONSTITUTIONAL QUESTIONS ARE:  WHETHER THESE STATUTES VIOLATE
DUE PROCESS, (FN3) BECAUSE TOO VAGUE TO SUPPORT CONVICTION FOR CRIME;
WHETHER POWER TO PUNISH SPEECH AND PRESS OFFENSIVE TO DECENCY AND
MORALITY IS IN THE STATES ALONE, SO THAT THE FEDERAL OBSCENITY STATUTE
VIOLATES THE NINTH AND TENTH AMENDMENTS (RAISED IN ROTH); AND WHETHER
CONGRESS, BY ENACTING THE FEDERAL OBSCENITY STATUTE, UNDER THE POWER
DELEGATED BY ART. I, SEC. 8, CL. 7, TO ESTABLISH POST OFFICES AND POST
ROADS, PRE-EMPTED THE REGULATION OF THE SUBJECT MATTER (RAISED IN
ALBERTS). 

ROTH CONDUCTED A BUSINESS IN NEW YORK IN THE PUBLICATION AND SALE OF
BOOKS, PHOTOGRAPHS AND MAGAZINES.  HE USED CIRCULARS AND ADVERTISING
MATTER TO SOLICIT SALES.  HE WAS CONVICTED BY A JURY IN THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK UPON 4 COUNTS OF A 26-COUNT
INDICTMENT CHARGING HIM WITH MAILING OBSCENE CIRCULARS AND ADVERTISING,
AND AN OBSCENE BOOK, IN VIOLATION OF THE FEDERAL OBSCENITY STATUTE. 
HIS CONVICTION WAS AFFIRMED BY THE COURT OF APPEALS FOR THE SECOND
CIRCUIT.  (FN4)  WE GRANTED CERTIORARI.  (FN5) 

ALBERTS CONDUCTED A MAIL-ORDER BUSINESS FROM LOS ANGELES.  HE WAS
CONVICTED BY THE JUDGE OF THE MUNICIPAL COURT OF THE BEVERLY HILLS
JUDICIAL DISTRICT (HAVING WAIVED A JURY TRIAL) UNDER A MISDEMEANOR
COMPLAINT WHICH CHARGED HIM WITH LEWDLY KEEPING FOR SALE OBSCENE AND
INDECENT BOOKS, AND WITH WRITING, COMPOSING AND PUBLISHING AN OBSCENE
ADVERTISEMENT OF THEM, IN VIOLATION OF THE CALIFORNIA PENAL CODE.  THE
CONVICTION WAS AFFIRMED BY THE APPELLATE DEPARTMENT OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES. 
(FN6)  WE NOTED PROBABLE JURISDICTION.  (FN7) 

THE DISPOSITIVE QUESTION IS WHETHER OBSCENITY IS UTTERANCE WITHIN THE
AREA OF PROTECTED SPEECH AND PRESS.  (FN8)  ALTHOUGH THIS IS THE FIRST
TIME THE QUESTION HAS BEEN SQUARELY PRESENTED TO THIS COURT, EITHER
UNDER THE FIRST AMENDMENT OR UNDER THE FOURTEENTH AMENDMENT,
EXPRESSIONS FOUND IN NUMEROUS OPINIONS INDICATE THAT THIS COURT HAS
ALWAYS ASSUMED THAT OBSCENITY IS NOT PROTECTED BY THE FREEDOMS OF
SPEECH AND PRESS.  EX PARTE JACKSON, 96 U.S. 727, 736-737; UNITED
STATES V. CHASE, 135 U.S. 255, 261; ROBERTSON V. BALDWIN, 165 U.S. 275,
281; PUBLIC CLEARING HOUSE V. COYNE, 194 U.S. 497, 508; HOKE V. UNITED
STATES, 227 U.S. 308, 322; NEAR V. MINNESOTA, 283 U.S. 697, 716;
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571-572; HANNEGAN V.
ESQUIRE, INC., 327 U.S. 146, 158; WINTERS V. NEW YORK, 333 U.S. 507,
510; BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 266.  (FN9) 

THE GUARANTIES OF FREEDOM OF EXPRESSION (FN10) IN EFFECT IN 10 OF THE
14 STATES WHICH BY 1792 HAD RATIFIED THE CONSTITUTION, GAVE NO ABSOLUTE
PROTECTION FOR EVERY UTTERANCE.  THIRTEEN OF THE 14 STATES PROVIDED FOR
THE PROSECUTION OF LIBEL, (FN11) AND ALL OF THOSE STATES MADE EITHER
BLASPHEMY OR PROFANITY, OR BOTH, STATUTORY CRIMES.  (FN12)  AS EARLY AS
1712, MASSACHUSETTS MADE IT CRIMINAL TO PUBLISH "ANY FILTHY, OBSCENE,
OR PROFANE SONG, PAMPHLET, LIBEL OR MOCK SERMON" IN IMITATION OR
MIMICKING OF RELIGIOUS SERVICES.  ACTS AND LAWS OF THE PROVINCE OF
MASS. BAY, C. CV, SEC. 8 (1712), MASS. BAY COLONY CHARTERS & LAWS 399
(1814).  THUS, PROFANITY AND OBSCENITY WERE RELATED OFFENSES. 

IN LIGHT OF THIS HISTORY, IT IS APPARENT THAT THE UNCONDITIONAL
PHRASING OF THE FIRST AMENDMENT WAS NOT INTENDED TO PROTECT EVERY
UTTERANCE.  THIS PHRASING DID NOT PREVENT THIS COURT FROM CONCLUDING
THAT LIBELOUS UTTERANCES ARE NOT WITHIN THE AREA OF CONSTITUTIONALLY
PROTECTED SPEECH.  BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 266.  AT THE
TIME OF THE ADOPTION OF THE FIRST AMENDMENT, OBSCENITY LAW WAS NOT AS
FULLY DEVELOPED AS LIBEL LAW, BUT THERE IS SUFFICIENTLY CONTEMPORANEOUS
EVIDENCE TO SHOW THAT OBSCENITY, TOO, WAS OUTSIDE THE PROTECTION
INTENDED FOR SPEECH AND PRESS.  (FN13) 

THE PROTECTION GIVEN SPEECH AND PRESS WAS FASHIONED TO ASSURE
UNFETTERED INTERCHANGE OF IDEAS FOR THE BRINGING ABOUT OF POLITICAL AND
SOCIAL CHANGES DESIRED BY THE PEOPLE.  THIS OBJECTIVE WAS MADE EXPLICIT
AS EARLY AS 1774 IN A LETTER OF THE CONTINENTAL CONGRESS TO THE
INHABITANTS OF QUEBEC: 

"THE LAST RIGHT WE SHALL MENTION, REGARDS THE FREEDOM OF THE PRESS. 
THE IMPORTANCE OF THIS CONSISTS, BESIDES THE ADVANCEMENT OF TRUTH,
SCIENCE, MORALITY, AND ARTS IN GENERAL, IN ITS DIFFUSION OF LIBERAL
SENTIMENTS ON THE ADMINISTRATION OF GOVERNMENT, ITS READY COMMUNICATION
OF THOUGHTS BETWEEN SUBJECTS, AND ITS CONSEQUENTIAL PROMOTION OF UNION
AMONG THEM, WHEREBY OPPRESSIVE OFFICERS ARE SHAMED OR INTIMIDATED, INTO
MORE HONOURABLE AND JUST MODES OF CONDUCTING AFFAIRS."  1 JOURNALS OF
THE CONTINENTAL CONGRESS 108 (1774). 

ALL IDEAS HAVING EVEN THE SLIGHTEST REDEEMING SOCIAL IMPORTANCE -
UNORTHODOX IDEAS, CONTROVERSIAL IDEAS, EVEN IDEAS HATEFUL TO THE
PREVAILING CLIMATE OF OPINION - HAVE THE FULL PROTECTION OF THE
GUARANTIES, UNLESS EXCLUDABLE BECAUSE THEY ENCROACH UPON THE LIMITED
AREA OF MORE IMPORTANT INTERESTS.  (FN14)  BUT IMPLICIT IN THE HISTORY
OF THE FIRST AMENDMENT IS THE REJECTION OF OBSCENITY AS UTTERLY WITHOUT
REDEEMING SOCIAL IMPORTANCE.  THIS REJECTION FOR THAT REASON IS
MIRRORED IN THE UNIVERSAL JUDGMENT THAT OBSCENITY SHOULD BE RESTRAINED,
REFLECTED IN THE INTERNATIONAL AGREEMENT OF OVER 50 NATIONS, (FN15) IN
THE OBSCENITY LAWS OF ALL OF THE 48 STATES, (FN16) AND IN THE 20
OBSCENITY LAWS ENACTED BY THE CONGRESS FROM 1842 TO 1956.  (FN17)  THIS
IS THE SAME JUDGMENT EXPRESSED BY THIS COURT IN CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568, 571-572: 

"  ...  THERE ARE CERTAIN WELL-DEFINED AND NARROWLY LIMITED CLASSES
OF SPEECH, THE PREVENTION AND PUNISHMENT OF WHICH HAVE NEVER BEEN
THOUGHT TO RAISE ANY CONSTITUTIONAL PROBLEM.  THESE INCLUDE THE LEWD
AND OBSCENE  ...  .  IT HAS BEEN WELL OBSERVED THAT SUCH UTTERANCES ARE
NO ESSENTIAL PART OF ANY EXPOSITION OF IDEAS, AND ARE OF SUCH SLIGHT
SOCIAL VALUE AS A STEP TO TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED
FROM THEM IS CLEARLY OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND
MORALITY ...  ." 

WE HOLD THAT OBSCENITY IS NOT WITHIN THE AREA OF CONSTITUTIONALLY
PROTECTED SPEECH OR PRESS. 

IT IS STRENUOUSLY URGED THAT THESE OBSCENITY STATUTES OFFEND THE
CONSTITUTIONAL GUARANTIES BECAUSE THEY PUNISH INCITATION TO IMPURE
SEXUAL THOUGHTS, NOT SHOWN TO BE RELATED TO ANY OVERT ANTISOCIAL
CONDUCT WHICH IS OR MAY BE INCITED IN THE PERSONS STIMULATED TO SUCH
THOUGHTS.  IN ROTH, THE TRIAL JUDGE INSTRUCTED THE JURY: "THE WORDS
'OBSCENE, LEWD AND LASCIVIOUS' AS USED IN THE LAW, SIGNIFY THAT FORM OF
IMMORALITY WHICH HAS RELATION TO SEXUAL IMPURITY AND HAS A TENDENCY TO
EXCITE LUSTFUL THOUGHTS."  IN ALBERTS, THE TRIAL JUDGE APPLIED THE TEST
LAID DOWN IN PEOPLE V. WEPPLO, 78 CAL. APP. 2D SUPP. 959, 178 P.2D 853,
NAMELY, WHETHER THE MATERIAL HAS "A SUBSTANTIAL TENDENCY TO DEPRAVE OR
CORRUPT ITS READERS BY INCITING LASCIVIOUS THOUGHTS OR AROUSING LUSTFUL
DESIRES."  IT IS INSISTED THAT THE CONSTITUTIONAL GUARANTIES ARE
VIOLATED BECAUSE CONVICTIONS MAY BE HAD WITHOUT PROOF EITHER THAT
OBSCENE MATERIAL WILL PERCEPTIBLY CREATE A CLEAR AND PRESENT DANGER OF
ANTISOCIAL CONDUCT, (FN18) OR WILL PROBABLY INDUCE ITS RECIPIENTS TO
SUCH CONDUCT.  (FN19)  BUT, IN LIGHT OF OUR HOLDING THAT OBSCENITY IS
NOT PROTECTED SPEECH, THE COMPLETE ANSWER TO THIS ARGUMENT IS IN THE
HOLDING OF THIS COURT IN BEAUHARNAIS V. ILLINOIS, SUPRA, AT 266: 

"LIBELOUS UTTERANCES NOT BEING WITHIN THE AREA OF CONSTITUTIONALLY
PROTECTED SPEECH, IT IS UNNECESSARY, EITHER FOR US OR FOR THE STATE
COURTS, TO CONSIDER THE ISSUES BEHIND THE PHRASE 'CLEAR AND PRESENT
DANGER.'  CERTAINLY NO ONE WOULD CONTEND THAT OBSCENE SPEECH, FOR
EXAMPLE, MAY BE PUNISHED ONLY UPON A SHOWING OF SUCH CIRCUMSTANCES. 
LIBEL, AS WE HAVE SEEN, IS IN THE SAME CLASS." 

HOWEVER, SEX AND OBSCENITY ARE NOT SYNONYMOUS.  OBSCENE MATERIAL IS
MATERIAL WHICH DEALS WITH SEX IN A MANNER APPEALING TO PRURIENT
INTEREST.  (FN20)  THE PORTRAYAL OF SEX, E.G., IN ART, LITERATURE AND
SCIENTIFIC WORKS, (FN21) IS NOT ITSELF SUFFICIENT REASON TO DENY
MATERIAL THE CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH AND PRESS. 
SEX, A GREAT AND MYSTERIOUS MOTIVE FORCE IN HUMAN LIFE, HAS
INDISPUTABLY BEEN A SUBJECT OF ABSORBING INTEREST TO MANKIND THROUGH
THE AGES; IT IS ONE OF THE VITAL PROBLEMS OF HUMAN INTEREST AND PUBLIC
CONCERN.  AS TO ALL SUCH PROBLEMS, THIS COURT SAID IN THORNHILL V.
ALABAMA, 310 U.S. 88, 101-102: 

"THE FREEDOM OF SPEECH AND OF THE PRESS GUARANTEED BY THE
CONSTITUTION EMBRACES AT THE LEAST THE LIBERTY TO DISCUSS PUBLICLY AND
TRUTHFULLY ALL MATTERS OF PUBLIC CONCERN WITHOUT PREVIOUS RESTRAINT OR
FEAR OF SUBSEQUENT PUNISHMENT.  THE EXIGENCIES OF THE COLONIAL PERIOD
AND THE EFFORTS TO SECURE FREEDOM FROM OPPRESSIVE ADMINISTRATION
DEVELOPED A BROADENED CONCEPTION OF THESE LIBERTIES AS ADEQUATE TO
SUPPLY THE PUBLIC NEED FOR INFORMATION AND EDUCATION WITH RESPECT TO
THE SIGNIFICANT ISSUES OF THE TIMES  ...  .  FREEDOM OF DISCUSSION, IF
IT WOULD FULFILL ITS HISTORIC FUNCTION IN THIS NATION, MUST EMBRACE ALL
ISSUES ABOUT WHICH INFORMATION IS NEEDED OR APPROPRIATE TO ENABLE THE
MEMBERS OF SOCIETY TO COPE WITH THE EXIGENCIES OF THEIR PERIOD." 

THE FUNDAMENTAL FREEDOMS OF SPEECH AND PRESS HAVE CONTRIBUTED GREATLY
TO THE DEVELOPMENT AND WELL-BEING OF OUR FREE SOCIETY AND ARE
INDISPENSABLE TO ITS CONTINUED GROWTH.  (FN22)  CEASELESS VIGILANCE IS
THE WATCHWORD TO PREVENT THEIR EROSION BY CONGRESS OR BY THE STATES. 
THE DOOR BARRING FEDERAL AND STATE INTRUSION INTO THIS AREA CANNOT BE
LEFT AJAR; IT MUST BE KEPT TIGHTLY CLOSED AND OPENED ONLY THE SLIGHTEST
CRACK NECESSARY TO PREVENT ENCROACHMENT UPON MORE IMPORTANT INTERESTS. 
(FN23)  IT IS THEREFORE VITAL THAT THE STANDARDS FOR JUDGING OBSCENITY
SAFEGUARD THE PROTECTION OF FREEDOM OF SPEECH AND PRESS FOR MATERIAL
WHICH DOES NOT TREAT SEX IN A MANNER APPEALING TO PRURIENT INTEREST. 

THE EARLY LEADING STANDARD OF OBSCENITY ALLOWED MATERIAL TO BE JUDGED
MERELY BY THE EFFECT OF AN ISOLATED EXCERPT UPON PARTICULARLY
SUSCEPTIBLE PERSONS.  REGINA V. HICKLIN, (1868) L.R. 3 Q.B. 360. 
(FN24)  SOME AMERICAN COURTS ADOPTED THIS STANDARD (FN25) BUT LATER
DECISIONS HAVE REJECTED IT AND SUBSTITUTED THIS TEST:  WHETHER TO THE
AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT
THEME OF THE MATERIAL TAKEN AS A WHOLE APPEALS TO PRURIENT INTEREST. 
(FN26)  THE HICKLIN TEST, JUDGING OBSCENITY BY THE EFFECT OF ISOLATED
PASSAGES UPON THE MOST SUSCEPTIBLE PERSONS, MIGHT WELL ENCOMPASS
MATERIAL LEGITIMATELY TREATING WITH SEX, AND SO IT MUST BE REJECTED AS
UNCONSTITUTIONALLY RESTRICTIVE OF THE FREEDOMS OF SPEECH AND PRESS.  ON
THE OTHER HAND, THE SUBSTITUTED STANDARD PROVIDES SAFEGUARDS ADEQUATE
TO WITHSTAND THE CHARGE OF CONSTITUTIONAL INFIRMITY. 

BOTH TRIAL COURTS BELOW SUFFICIENTLY FOLLOWED THE PROPER STANDARD. 
BOTH COURTS USED THE PROPER DEFINITION OF OBSCENITY.  IN ADDITION, IN
THE ALBERTS CASE, IN RULING ON A MOTION TO DISMISS, THE TRIAL JUDGE
INDICATED THAT, AS THE TRIER OF FACTS, HE WAS JUDGING EACH ITEM AS A
WHOLE AS IT WOULD AFFECT THE NORMAL PERSON, (FN27) AND IN ROTH, THE
TRIAL JUDGE INSTRUCTED THE JURY AS FOLLOWS: 

"  ...  THE TEST IS NOT WHETHER IT WOULD AROUSE SEXUAL DESIRES OR
SEXUAL IMPURE THOUGHTS IN THOSE COMPRISING A PARTICULAR SEGMENT OF THE
COMMUNITY, THE YOUNG, THE IMMATURE OR THE HIGHLY PRUDISH OR WOULD LEAVE
ANOTHER SEGMENT, THE SCIENTIFIC OR HIGHLY EDUCATED OR THE SO-CALLED
WORLDLY-WISE AND SOPHISTICATED INDIFFERENT AND UNMOVED  ...  . 

"THE TEST IN EACH CASE IS THE EFFECT OF THE BOOK, PICTURE OR
PUBLICATION CONSIDERED AS A WHOLE, NOT UPON ANY PARTICULAR CLASS, BUT
UPON ALL THOSE WHOM IT IS LIKELY TO REACH.  IN OTHER WORDS, YOU
DETERMINE ITS IMPACT UPON THE AVERAGE PERSON IN THE COMMUNITY.  THE
BOOKS, PICTURES AND CIRCULARS MUST BE JUDGED AS A WHOLE, IN THEIR
ENTIRE CONTEXT, AND YOU ARE NOT TO CONSIDER DETACHED OR SEPARATE
PORTIONS IN REACHING A CONCLUSION.  YOU JUDGE THE CIRCULARS, PICTURES
AND PUBLICATIONS WHICH HAVE BEEN PUT IN EVIDENCE BY PRESENT-DAY
STANDARDS OF THE COMMUNITY.  YOU MAY ASK YOURSELVES DOES IT OFFEND THE
COMMON CONSCIENCE OF THE COMMUNITY BY PRESENT-DAY STANDARDS. 

     *         *         *         *         * 

"IN THIS CASE, LADIES AND GENTLEMEN OF THE JURY, YOU AND YOU ALONE
ARE THE EXCLUSIVE JUDGES OF WHAT THE COMMON CONSCIENCE OF THE COMMUNITY
IS, AND IN DETERMINING THAT CONSCIENCE YOU ARE TO CONSIDER THE
COMMUNITY AS A WHOLE, YOUNG AND OLD, EDUCATED AND UNEDUCATED, THE
RELIGIOUS AND THE IRRELIGIOUS - MEN, WOMEN AND CHILDREN."    IT IS
ARGUED THAT THE STATUTES DO NOT PROVIDE REASONABLY ASCERTAINABLE
STANDARDS OF GUILT AND THEREFORE VIOLATE THE CONSTITUTIONAL
REQUIREMENTS OF DUE PROCESS.  WINTERS V. NEW YORK, 333 U.S. 507.  THE
FEDERAL OBSCENITY STATUTE MAKES PUNISHABLE THE MAILING OF MATERIAL THAT
IS "OBSCENE, LEWD, LASCIVIOUS, OR FILTHY  ...  OR OTHER PUBLICATION OF
AN INDECENT CHARACTER."  (FN28)  THE CALIFORNIA STATUTE MAKES
PUNISHABLE, INTER ALIA, THE KEEPING FOR SALE OR ADVERTISING MATERIAL
THAT IS "OBSCENE OR INDECENT."  THE THRUST OF THE ARGUMENT IS THAT
THESE WORDS ARE NOT SUFFICIENTLY PRECISE BECAUSE THEY DO NOT MEAN THE
SAME THING TO ALL PEOPLE, ALL THE TIME, EVERYWHERE. 

MANY DECISIONS HAVE RECOGNIZED THAT THESE TERMS OF OBSCENITY STATUTES
ARE NOT PRECISE.  (FN29) THIS COURT, HOWEVER, HAS CONSISTENTLY HELD
THAT LACK OF PRECISION IS NOT ITSELF OFFENSIVE TO THE REQUIREMENTS OF
DUE PROCESS.  "  ...  THE CONSTITUTION DOES NOT REQUIRE IMPOSSIBLE
STANDARDS"; ALL THAT IS REQUIRED IS THAT THE LANGUAGE "CONVEYS
SUFFICIENTLY DEFINITE WARNING AS TO THE PROSCRIBED CONDUCT WHEN
MEASURED BY COMMON UNDERSTANDING AND PRACTICES  ...  ."  UNITED STATES
V. PETRILLO, 332 U.S. 1, 7-8.  THESE WORDS, APPLIED ACCORDING TO THE
PROPER STANDARD FOR JUDGING OBSCENITY, ALREADY DISCUSSED, GIVE ADEQUATE
WARNING OF THE CONDUCT PROSCRIBED AND MARK "  ...  BOUNDARIES
SUFFICIENTLY DISTINCT FOR JUDGES AND JURIES FAIRLY TO ADMINISTER THE
LAW  ...  .  THAT THERE MAY BE MARGINAL CASES IN WHICH IT IS DIFFICULT
TO DETERMINE THE SIDE OF THE LINE ON WHICH A PARTICULAR FACT SITUATION
FALLS IS NO SUFFICIENT REASON TO HOLD THE LANGUAGE TOO AMBIGUOUS TO
DEFINE A CRIMINAL OFFENSE  ...  ."  ID., AT 7.  SEE ALSO UNITED STATES
V. HARRISS, 347 U.S. 612, 624, N. 15; BOYCE MOTOR LINES, INC. V. UNITED
STATES, 342 U.S. 337, 340; UNITED STATES V. RAGEN, 314 U.S. 513, 523
524; UNITED STATES V. WURZBACH, 280 U.S. 396; HYGRADE PROVISION CO. V.
SHERMAN, 266 U.S. 497; FOX V. WASHINGTON, 236 U.S. 273; NASH V. UNITED
STATES, 229 U.S. 373.  (FN30) 

IN SUMMARY, THEN, WE HOLD THAT THESE STATUTES, APPLIED ACCORDING TO
THE PROPER STANDARD FOR JUDGING OBSCENITY, DO NOT OFFEND CONSTITUTIONAL
SAFEGUARDS AGAINST CONVICTIONS BASED UPON PROTECTED MATERIAL, OR FAIL
TO GIVE MEN IN ACTING ADEQUATE NOTICE OF WHAT IS PROHIBITED. 

ROTH'S ARGUMENT THAT THE FEDERAL OBSCENITY STATUTE UNCONSTITUTIONALLY
ENCROACHES UPON THE POWERS RESERVED BY THE NINTH AND TENTH AMENDMENTS
TO THE STATES AND TO THE PEOPLE TO PUNISH SPEECH AND PRESS WHERE
OFFENSIVE TO DECENCY AND MORALITY IS HINGED UPON HIS CONTENTION THAT
OBSCENITY IS EXPRESSION NOT EXCEPTED FROM THE SWEEP OF THE PROVISION OF
THE FIRST AMENDMENT THAT "CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING
THE FREEDOM OF SPEECH, OR OF THE PRESS  ...  ."  THAT ARGUMENT FALLS IN
LIGHT OF OUR HOLDING THAT OBSCENITY IS NOT EXPRESSION PROTECTED BY THE
FIRST AMENDMENT.  (FN31)  WE THEREFORE HOLD THAT THE FEDERAL OBSCENITY
STATUTE PUNISHING THE USE OF THE MAILS FOR OBSCENE MATERIAL IS A PROPER
EXERCISE OF THE POSTAL POWER DELEGATED TO CONGRESS BY ART. I, SEC. 8,
CL. 7.  (FN32)  IN UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 95
96, THIS COURT SAID: 

"  ...  THE POWERS GRANTED BY THE CONSTITUTION TO THE FEDERAL
GOVERNMENT ARE SUBTRACTED FROM THE TOTALITY OF SOVEREIGNTY ORIGINALLY
IN THE STATES AND THE PEOPLE.  THEREFORE, WHEN OBJECTION IS MADE THAT
THE EXERCISE OF A FEDERAL POWER INFRINGES UPON RIGHTS RESERVED BY THE
NINTH AND TENTH AMENDMENTS, THE INQUIRY MUST BE DIRECTED TOWARD THE
GRANTED POWER UNDER WHICH THE ACTION OF THE UNION WAS TAKEN.  IF
GRANTED POWER IS FOUND, NECESSARILY THE OBJECTION OF INVASION OF THOSE
RIGHTS, RESERVED BY THE NINTH AND TENTH AMENDMENTS, MUST FAIL  ...  ." 

ALBERTS ARGUES THAT BECAUSE HIS WAS A MAIL-ORDER BUSINESS, THE
CALIFORNIA STATUTE IS REPUGNANT TO ART. I, SEC. 8, CL. 7, UNDER WHICH
THE CONGRESS ALLEGEDLY PRE-EMPTED THE REGULATORY FIELD BY ENACTING THE
FEDERAL OBSCENITY STATUTE PUNISHING THE MAILING OR ADVERTISING BY MAIL
OF OBSCENE MATERIAL.  THE FEDERAL STATUTE DEALS ONLY WITH ACTUAL
MAILING; IT DOES NOT ELIMINATE THE POWER OF THE STATE TO PUNISH
"KEEPING FOR SALE" OR "ADVERTISING" OBSCENE MATERIAL.  THE STATE
STATUTE IN NO WAY IMPOSES A BURDEN OR INTERFERES WITH THE FEDERAL
POSTAL FUNCTIONS.  "  ...  THE DECIDED CASES WHICH INDICATE THE LIMITS
OF STATE REGULATORY POWER IN RELATION TO THE FEDERAL MAIL SERVICE
INVOLVE SITUATIONS WHERE STATE REGULATION INVOLVED A DIRECT, PHYSICAL
INTERFERENCE WITH FEDERAL ACTIVITIES UNDER THE POSTAL POWER OR SOME
DIRECT, IMMEDIATE BURDEN ON THE PERFORMANCE OF THE POSTAL FUNCTIONS ...
."  RAILWAY MAIL ASSN. V. CORSI, 326 U.S. 88, 96. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  THE FEDERAL OBSCENITY STATUTE PROVIDED, IN PERTINENT PART: 

"EVERY OBSCENE, LEWD, LASCIVIOUS, OR FILTHY BOOK, PAMPHLET, PICTURE,
PAPER, LETTER, WRITING, PRINT, OR OTHER PUBLICATION OF AN INDECENT
CHARACTER; AND: 

     *  *         *         *         * 

"EVERY WRITTEN OR PRINTED CARD, LETTER, CIRCULAR, BOOK, PAMPHLET,
ADVERTISEMENT, OR NOTICE OF ANY KIND GIVING INFORMATION, DIRECTLY OR
INDIRECTLY, WHERE, OR HOW, OR FROM WHOM, OR BY WHAT MEANS ANY OF SUCH
MENTIONED MATTERS, ARTICLES, OR THINGS MAY BE OBTAINED OR MADE,  ...
WHETHER SEALED OR UNSEALED  ...  . 

     *         * *         *         * 

"IS DECLARED TO BE NONMAILABLE MATTER AND SHALL NOT BE CONVEYED IN
THE MAILS OR DELIVERED FROM ANY POST OFFICE OR BY ANY LETTER CARRIER. 

"WHOEVER KNOWINGLY DEPOSITS FOR MAILING OR DELIVERY, ANYTHING
DECLARED BY THIS SECTION TO BE NONMAILABLE, OR KNOWINGLY TAKES THE SAME
FROM THE MAILS FOR THE PURPOSE OF CIRCULATING OR DISPOSING THEREOF, OR
OF AIDING IN THE CIRCULATION OR DISPOSITION THEREOF, SHALL BE FINED NOT
MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH."  18
U.S.C. SEC. 1461. 

THE 1955 AMENDMENT OF THIS STATUTE, 69 STAT. 183, IS NOT APPLICABLE
TO THIS CASE. 

FN2  THE CALIFORNIA PENAL CODE PROVIDES, IN PERTINENT PART: 

"EVERY PERSON WHO WILFULLY AND LEWDLY, EITHER: 

     *         *         *         *         * 

"3.  WRITES, COMPOSES, STEREOTYPES, PRINTS, PUBLISHES, SELLS,
DISTRIBUTES, KEEPS FOR SALE, OR EXHIBITS ANY OBSCENE OR INDECENT
WRITING, PAPER, OR BOOK; OR DESIGNS, COPIES, DRAWS, ENGRAVES, PAINTS,
OR OTHER-WISE PREPARES ANY OBSCENE OR INDECENT PICTURE OR PRINT; OR
MOLDS, CUTS, CASTS, OR OTHERWISE MAKES ANY OBSCENE OR INDECENT FIGURE;
OR: 

"4.  WRITES, COMPOSES, OR PUBLISHES ANY NOTICE OR ADVERTISEMENT OF
ANY SUCH WRITING, PAPER, BOOK, PICTURE, PRINT OR FIGURE; ...  . 

     *         *         *         *         * 

"6.  ...  IS GUILTY OF A MISDEMEANOR  ...  ."  WEST'S CAL. PENAL CODE
ANN., 1955, SEC. 311. 

FN3  IN ROTH, RELIANCE IS PLACED ON THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT, AND IN ALBERTS, RELIANCE IS PLACED UPON THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

FN4  237 F.2D 796. 

FN5  352 U.S. 964.  PETITIONER'S APPLICATION FOR BAIL WAS GRANTED BY
MR. JUSTICE HARLAN IN HIS CAPACITY AS CIRCUIT JUSTICE FOR THE SECOND
CIRCUIT.  1 L. ED. 2D 34, 77 SUP. CT. 17. 

FN6  138 CAL. APP. 2D SUPP. 909, 292 P.2D 90.  THIS IS THE HIGHEST
STATE APPELLATE COURT AVAILABLE TO THE APPELLANT.  CAL. CONST., ART.
VI, SEC. 5; SEE EDWARDS V. CALIFORNIA, 314 U.S. 160. 

FN7  352 U.S. 962. 

FN8  NO ISSUE IS PRESENTED IN EITHER CASE CONCERNING THE OBSCENITY OF
THE MATERIAL INVOLVED. 

FN9  SEE ALSO THE FOLLOWING CASES IN WHICH CONVICTIONS UNDER
OBSCENITY STATUTES HAVE BEEN REVIEWED:  GRIMM V. UNITED STATES, 156
U.S. 604; ROSEN V. UNITED STATES, 161 U.S. 29; SWEARINGEN V. UNITED
STATES, 161 U.S. 446; ANDREWS V. UNITED STATES, 162 U.S. 420; PRICE V.
UNITED STATES, 165 U.S. 311; DUNLOP V. UNITED STATES, 165 U.S. 486;
BARTELL V. UNITED STATES, 227 U.S. 427; UNITED STATES V. LIMEHOUSE, 285
U.S. 424. 

FN10  DEL. CONST., 1792, ART. I, SEC. 5; GA. CONST., 1777, ART. LXI;
MD. CONST., 1776, DECLARATION OF RIGHTS, SEC. 38; MASS. CONST., 1780,
DECLARATION OF RIGHTS, ART. XVI; N.H. CONST., 1784, ART. I, SEC. XXII;
N.C. CONST., 1776, DECLARATION OF RIGHTS, ART. XV; PA. CONST., 1776,
DECLARATION OF RIGHTS, ART. XII; S.C. CONST., 1778, ART. XLIII; VT.
CONST., 1777, DECLARATION OF RIGHTS, ART. XIV; VA. BILL OF RIGHTS,
1776, SEC. 12. 

FN11  ACT TO SECURE THE FREEDOM OF THE PRESS (1804), 1 CONN. PUB.
STAT. LAWS 355 (1808); DEL. CONST., 1792, ART. I, SEC. 5; GA. PENAL
CODE, EIGHTH DIV., SEC. VIII (1817), DIGEST OF THE LAWS OF GA. 364
(PRINCE 1822); ACT OF 1803, C. 54, II MD. PUBLIC GENERAL LAWS 1096 (POE
1888); COMMONWEALTH V. KNEELAND, 37 MASS. 206, 232 (1838); ACT FOR THE
PUNISHMENT OF CERTAIN CRIMES NOT CAPITAL (1791), N.H. LAWS 1792, 253;
ACT RESPECTING LIBELS (1799), N.J. REV.  LAWS 411 (1800); PEOPLE V.
CROSWELL, 3 JOHNS.  (N.Y.)  337 (1804); ACT OF 1803, C. 632, 2 LAWS OF
N.C. 999 (1821); PA. CONST., 1790, ART. IX, SEC. 7; R.I. CODE OF LAWS
(1647), PROCEEDINGS OF THE FIRST GENERAL ASSEMBLY AND CODE OF LAWS 44
45 (1647); R.I. CONST., 1842, ART. I, SEC. 20; ACT OF 1804, 1 LAWS OF
VT. 366 (TOLMAN 1808); COMMONWEALTH V. MORRIS, 1 BROCK.  & HOL.  (VA.) 
176 (1811). 

FN12  ACT FOR THE PUNISHMENT OF DIVERS CAPITAL AND OTHER FELONIES,
ACTS AND LAWS OF CONN.  66, 67 (1784); ACT AGAINST DRUNKENNESS,
BLASPHEMY, SECS. 4, 5 (1737), 1 LAWS OF DEL.  173, 174 (1797); ACT TO
REGULATE TAVERNS (1786), DIGEST OF THE LAWS OF GA. 512, 513 (PRINCE
1822); ACT OF 1723, C. 16, SEC. 1, DIGEST OF THE LAWS OF MD. 92 (HERTY
1799); GENERAL LAWS AND LIBERTIES OF MASS. BAY, C. XVIII, SEC. 3
(1646), MASS. BAY COLONY CHARTERS & LAWS 58 (1814); ACT OF 1782, C. 8,
REV. STAT. OF MASS. 741, SEC. 15 (1836); ACT OF 1798, C. 33, SECS. 1,
3, REV. STAT. OF MASS. 741, SEC. 16 (1836); ACT FOR THE PUNISHMENT OF
CERTAIN CRIMES NOT CAPITAL (1791), N.H. LAWS 1792, 252, 256; ACT FOR
THE PUNISHMENT OF PROFANE CURSING AND SWEARING (1791), N.H. LAWS 1792,
258; ACT FOR SUPPRESSING VICE AND IMMORALITY, SECS. VIII, IX (1798),
N.J. REV. LAWS 329, 331 (1800); ACT FOR SUPPRESSING IMMORALITY, SEC. IV
(1788), 2 LAWS OF N.Y. 257, 258 (JONES & VARICK 1777-1789); PEOPLE V.
RUGGLES, 8 JOHNS.  (N.Y.)  290 (1811); ACT  ...  FOR THE MORE EFFECTUAL
SUPPRESSION OF VICE AND IMMORALITY, SEC. III (1741), 1 N.C. LAWS 52
(MARTIN REV. 1715-1790); ACT TO PREVENT THE GRIEVOUS SINS OF CURSING
AND SWEARING (1700), II STATUTES AT LARGE OF PA. 49 (1700-1712); ACT
FOR THE PREVENTION OF VICE AND IMMORALITY, SEC. II (1794), 3 LAWS OF
PA. 177, 178 (1791-1802); ACT TO REFORM THE PENAL LAWS, SECS. 33, 34
(1798), R.I. LAWS 1798, 584, 595; ACT FOR THE MORE EFFECTUAL
SUPPRESSING OF BLASPHEMY AND PROPHANENESS (1703), LAWS OF S.C. 4
(GRIMKE 1790); ACT, FOR THE PUNISHMENT OF CERTAIN CAPITAL, AND OTHER
HIGH CRIMES AND MISDEMEANORS, SEC. 20 (1797), 1 LAWS OF VT. 332, 339
(TOLMAN 1808); ACT, FOR THE PUNISHMENT OF CERTAIN INFERIOR CRIMES AND
MISDEMEANORS, SEC. 20 (1797), 1 LAWS OF VT. 352, 361 (TOLMAN 1808); ACT
FOR THE EFFECTUAL SUPPRESSION OF VICE, SEC. 1 (1792), ACTS OF GENERAL
ASSEMBLY OF VA. 286 (1794). 

FN13  ACT CONCERNING CRIMES AND PUNISHMENTS, SEC. 69 (1821), STAT.
LAWS OF CONN. 109 (1824); KNOWLES V. STATE, 3 DAY (CONN.) 103 (1808);
REV. STAT. OF 1835, C. 130, SEC. 10, REV. STAT.  OF MASS. 740 (1836);
COMMONWEALTH V. HOLMES, 17 MASS. 335 (1821); REV. STAT OF 1842, C. 113,
SEC. 2, REV. STAT. OF N.H. 221 (1843); ACT FOR SUPPRESSING VICE AND
IMMORALITY, SEC. XII (1798), N.J. REV. LAWS 329, 331 (1800);
COMMONWEALTH V. SHARPLESS, 2 S.&R. (PA.)  91 (1815). 

FN14  E.G., UNITED STATES V. HARRISS, 347 U.S. 612; BREARD V.
ALEXANDRIA, 341 U.S. 622; TEAMSTERS UNION V. HANKE, 339 U.S. 470;
KOVACS V. COOPER, 336 U.S. 77; PRINCE V. MASSACHUSETTS, 321 U.S. 158;
LABOR BOARD V. VIRGINIA ELEC.  & POWER CO., 314 U.S. 469; COX V. NEW
HAMPSHIRE, 312 U.S. 569; SCHENCK V. UNITED STATES, 249 U.S. 47. 

FN15  AGREEMENT FOR THE SUPPRESSION OF THE CIRCULATION OF OBSCENE
PUBLICATIONS, 37 STAT.  1511; TREATIES IN FORCE 209 (U.S. DEPT. STATE,
OCTOBER 31, 1956). 

FN16  HEARINGS BEFORE SUBCOMMITTEE TO INVESTIGATE JUVENILE
DELINQUENCY OF THE SENATE COMMITTEE ON THE JUDICIARY, PURSUANT TO S.
RES. 62, 84TH CONG., 1ST SESS. 49-52 (MAY 24, 1955). 

ALTHOUGH NEW MEXICO HAS NO GENERAL OBSCENITY STATUTE, IT DOES HAVE A
STATUTE GIVING TO MUNICIPALITIES THE POWER "TO PROHIBIT THE SALE OR
EXHIBITING OF OBSCENE OR IMMORAL PUBLICATIONS, PRINTS, PICTURES, OR
ILLUSTRATIONS."  N.M. STAT. ANN., 1953, SECS. 14-21-3, 14-21-12. 

FN17  5 STAT. 548, 566; 11 STAT. 168; 13 STAT. 504, 507; 17 STAT.
302; 17 STAT. 598; 19 STAT. 90; 25 STAT. 187, 188; 25 STAT. 496; 26
STAT. 567, 614-615; 29 STAT. 512; 33 STAT. 705; 35 STAT. 1129, 1138; 41
STAT. 1060; 46 STAT. 688; 48 STAT. 1091, 1100; 62 STAT. 768; 64 STAT.
194; 64 STAT. 451; 69 STAT. 183; 70 STAT. 699. 

FN18  SCHENCK V. UNITED STATES, 249 U.S. 47.  THIS APPROACH IS
TYPIFIED BY THE OPINION OF JUDGE BOK (WRITTEN PRIOR TO THIS COURT'S
OPINION IN DENNIS V. UNITED STATES, 341 U.S. 494) IN COMMONWEALTH V.
GORDON, 66 PA. D.&C. 101, AFF'D, SUB NOM. COMMONWEALTH V. FEIGENBAUM,
166 PA. SUPER.  120, 70 A.2D 389. 

FN19  DENNIS V. UNITED STATES, 341 U.S. 494.  THIS APPROACH IS
TYPIFIED BY THE CONCURRING OPINION OF JUDGE FRANK IN THE ROTH CASE, 237
F.2D, AT 801.  SEE ALSO LOCKHART & MCCLURE, LITERATURE, THE LAW OF
OBSCENITY, AND THE CONSTITUTION, 38 MINN. L. REV. 295 (1954). 

FN20  I.E., MATERIAL HAVING A TENDENCY TO EXCITE LUSTFUL THOUGHTS. 
WEBSTER'S NEW INTERNATIONAL DICTIONARY (UNABRIDGED, 2D ED., 1949)
DEFINES PRURIENT, IN PERTINENT PART, AS FOLLOWS: 

"  ...  ITCHING; LONGING; UNEASY WITH DESIRE OR LONGING; OF PERSONS,
HAVING ITCHING, MORBID, OR LASCIVIOUS LONGINGS; OF DESIRE, CURIOSITY,
OR PROPENSITY, LEWD  ...  ."    PRURIENCY IS DEFINED, IN PERTINENT
PART, AS FOLLOWS: 

"  ...  QUALITY OF BEING PRURIENT; LASCIVIOUS DESIRE OR THOUGHT  ...
." 

SEE ALSO MUTUAL FILM CORP. V. INDUSTRIAL COMM'N, 236 U.S. 230, 242,
WHERE THIS COURT SAID AS TO MOTION PICTURES:  "  ...  THEY TAKE THEIR
ATTRACTION FROM THE GENERAL INTEREST, EAGER AND WHOLESOME IT MAY BE, IN
THEIR SUBJECTS, BUT A PRURIENT INTEREST MAY BE EXCITED AND APPEALED TO
...  ." 

WE PERCEIVE NO SIGNIFICANT DIFFERENCE BETWEEN THE MEANING OF
OBSCENITY DEVELOPED IN THE CASE LAW AND THE DEFINITION OF THE A.L.I.,
MODEL PENAL CODE, SEC. 207.10 (2) (TENT.  DRAFT NO. 6, 1957), VIZ.:

"  ...  A THING IS OBSCENE IF, CONSIDERED AS A WHOLE, ITS PREDOMINANT
APPEAL IS TO PRURIENT INTEREST, I.E., A SHAMEFUL OR MORBID INTEREST IN
NUDITY, SEX, OR EXCRETION, AND IF IT GOES SUBSTANTIALLY BEYOND
CUSTOMARY LIMITS OF CANDOR IN DESCRIPTION OR REPRESENTATION OF SUCH
MATTERS ...  ."  SEE COMMENT, ID., AT 10, AND THE DISCUSSION AT PAGE 29
ET SEQ. 

FN21  SEE, E.G., UNITED STATES V. DENNETT, 39 F.2D 564. 

FN22  MADISON'S REPORT ON THE VIRGINIA RESOLUTIONS, 4 ELLIOT'S
DEBATES 571. 

FN23 SEE NOTE 14, SUPRA. 

FN24  BUT SEE THE INSTRUCTIONS GIVEN TO THE JURY BY MR. JUSTICE
STABLE IN REGINA V. MARTIN SECKER WARBURG, (1954) 2 ALL ENG. 683
(C.C.C.). 

FN25  UNITED STATES V. KENNERLEY, 209 F. 119; MACFADDEN V. UNITED
STATES, 165 F. 51; UNITED STATES V. BENNETT, 24 FED. CAS. 1093; UNITED
STATES V. CLARKE, 38 F. 500; COMMONWEALTH V. BUCKLEY, 200 MASS. 346, 86
N.E. 910. 

FN26  E.G., WALKER V. POPENOE, 80 U.S. APP. D.C. 129, 149 F.2D 511;
PARMELEE V. UNITED STATES, 72 APP. D.C. 203, 113 F.2D 729; UNITED
STATES V. LEVINE, 83 F.2D 156; UNITED STATES V. DENNETT, 39 F.2D 564;
KHAN V. FEIST, INC., 70 F. SUPP. 450, AFF'D, 165 F.2D 188; UNITED
STATES V. ONE BOOK CALLED "ULYSSES," 5 F. SUPP. 182, AFF'D, 72 F.2D
705; AMERICAN CIVIL LIBERTIES UNION V. CHICAGO, 3 ILL. 2D 334, 121 N.E.
2D 585; COMMONWEALTH V. ISENSTADT, 318 MASS. 543, 62 N.E.2D 840;
MISSOURI V. BECKER, 364 MO. 1079, 272 S.W.2D 283; ADAMS THEATRE CO. V.
KEENAN, 12 N.J. 267, 96 A.2D 519; BANTAM BOOKS, INC. V. MELKO, 25 N.J.
SUPER.  292, 96 A.2D 47; COMMONWEALTH V. GORDON, 66 PA. D.&C. 101,
AFF'D, SUB NOM. COMMONWEALTH V. FEIGENBAUM, 166 PA. SUPER.  120, 70
A.2D 389; CF. ROTH V. GOLDMAN, 172 F.2D 788, 794-795 (CONCURRENCE). 

FN27  IN ALBERTS, THE CONTENTION THAT THE TRIAL JUDGE DID NOT READ
THE MATERIALS IN THEIR ENTIRETY IS NOT BEFORE US BECAUSE NOT FAIRLY
COMPRISED WITHIN THE QUESTIONS PRESENTED.  U.S. SUP. CT. RULES, 15
(1)(C)(1). 

FN28  THIS COURT, AS EARLY AS 1896, SAID OF THE FEDERAL OBSCENITY
STATUTE: 

"  ...  EVERY ONE WHO USES THE MAILS OF THE UNITED STATES FOR
CARRYING PAPERS OR PUBLICATIONS MUST TAKE NOTICE OF WHAT, IN THIS
ENLIGHTENED AGE, IS MEANT BY DECENCY, PURITY, AND CHASTITY IN SOCIAL
LIFE, AND WHAT MUST BE DEEMED OBSCENE, LEWD, AND LASCIVIOUS."  ROSEN V.
UNITED STATES, 161 U.S. 29, 42. 

FN29  E.G., ROTH V. GOLDMAN, 172 F.2D 788, 789; PARMELEE V. UNITED
STATES, 72 APP. D.C.  203, 204, 113 F.2D 729, 730; UNITED STATES V.
4200 COPIES INTERNATIONAL JOURNAL, 134 F. SUPP. 490, 493; UNITED STATES
V. ONE UNBOUND VOLUME, 128 F. SUPP. 280, 281. 

FN30  IT IS ARGUED THAT BECAUSE JURIES MAY REACH DIFFERENT
CONCLUSIONS AS TO THE SAME MATERIAL, THE STATUTES MUST BE HELD TO BE
INSUFFICIENTLY PRECISE TO SATISFY DUE PROCESS REQUIREMENTS.  BUT, IT IS
COMMON EXPERIENCE THAT DIFFERENT JURIES MAY REACH DIFFERENT RESULTS
UNDER ANY CRIMINAL STATUTE.  THAT IS ONE OF THE CONSEQUENCES WE ACCEPT
UNDER OUR JURY SYSTEM.  CF. DUNLOP V. UNITED STATES, 165 U.S. 486, 499
500. 

FN31  FOR THE SAME REASON, WE REJECT, IN THIS CASE, THE ARGUMENT THAT
THERE IS GREATER LATITUDE FOR STATE ACTION UNDER THE WORD "LIBERTY"
UNDER THE FOURTEENTH AMENDMENT THAN IS ALLOWED TO CONGRESS BY THE
LANGUAGE OF THE FIRST AMENDMENT. 

FN32  IN PUBLIC CLEARING HOUSE V. COYNE, 194 U.S. 497, 506-508, THIS
COURT SAID: 

"THE CONSTITUTIONAL PRINCIPLES UNDERLYING THE ADMINISTRATION OF THE
POST OFFICE DEPARTMENT WERE DISCUSSED IN THE OPINION OF THE COURT IN EX
PARTE JACKSON, 96 U.S. 727, IN WHICH WE HELD THAT THE POWER VESTED IN
CONGRESS TO ESTABLISH POST OFFICES AND POST ROADS EMBRACED THE
REGULATION OF THE ENTIRE POSTAL SYSTEM OF THE COUNTRY; THAT CONGRESS
MIGHT DESIGNATE WHAT MIGHT BE CARRIED IN THE MAILS AND WHAT EXCLUDED
...  .  IT MAY  ...  REFUSE TO INCLUDE IN ITS MAILS SUCH PRINTED MATTER
OR MERCHANDISE AS MAY SEEM OBJECTIONABLE TO IT UPON THE GROUND OF
PUBLIC POLICY  ...  .  FOR MORE THAN THIRTY YEARS NOT ONLY HAS THE
TRANSMISSION OF OBSCENE MATTER BEEN PROHIBITED, BUT IT HAS BEEN MADE A
CRIME, PUNISHABLE BY FINE OR IMPRISONMENT, FOR A PERSON TO DEPOSIT SUCH
MATTER IN THE MAILS.  THE CONSTITUTIONALITY OF THIS LAW WE BELIEVE HAS
NEVER BEEN ATTACKED  ...  ." 

MR. CHIEF JUSTICE WARREN, CONCURRING IN THE RESULT. 

I AGREE WITH THE RESULT REACHED BY THE COURT IN THESE CASES, BUT,
BECAUSE WE ARE OPERATING IN A FIELD OF EXPRESSION AND BECAUSE BROAD
LANGUAGE USED HERE MAY EVENTUALLY BE APPLIED TO THE ARTS AND SCIENCES
AND FREEDOM OF COMMUNICATION GENERALLY, I WOULD LIMIT OUR DECISION TO
THE FACTS BEFORE US AND TO THE VALIDITY OF THE STATUTES IN QUESTION AS
APPLIED. 

APPELLANT ALBERTS WAS CHARGED WITH WILFULLY, UNLAWFULLY AND LEWDLY
DISSEMINATING OBSCENE MATTER.  OBSCENITY HAS BEEN CONSTRUED BY THE
CALIFORNIA COURTS TO MEAN HAVING A SUBSTANTIAL TENDENCY TO CORRUPT BY
AROUSING LUSTFUL DESIRES.  PEOPLE V. WEPPLO, 78 CAL. APP. 2D SUPP.
959, 178 P.2D 853.  PETITIONER ROTH WAS INDICTED FOR UNLAWFULLY,
WILFULLY AND KNOWINGLY MAILING OBSCENE MATERIAL THAT WAS CALCULATED TO
CORRUPT AND DEBAUCH THE MINDS AND MORALS OF THOSE TO WHOM IT WAS SENT. 
EACH WAS ACCORDED ALL THE PROTECTIONS OF A CRIMINAL TRIAL.  AMONG OTHER
THINGS, THEY CONTEND THAT THE STATUTES UNDER WHICH THEY WERE CONVICTED
VIOLATE THE CONSTITUTIONAL GUARANTEES OF FREEDOM OF SPEECH, PRESS AND
COMMUNICATION. 

THAT THERE IS A SOCIAL PROBLEM PRESENTED BY OBSCENITY IS ATTESTED BY
THE EXPRESSION OF THE LEGISLATURES OF THE FORTY-EIGHT STATES AS WELL AS
THE CONGRESS.  TO RECOGNIZE THE EXISTENCE OF A PROBLEM, HOWEVER, DOES
NOT REQUIRE THAT WE SUSTAIN ANY AND ALL MEASURES ADOPTED TO MEET THAT
PROBLEM.  THE HISTORY OF THE APPLICATION OF LAWS DESIGNED TO SUPPRESS
THE OBSCENE DEMONSTRATES CONVINCINGLY THAT THE POWER OF GOVERNMENT CAN
BE INVOKED UNDER THEM AGAINST GREAT ART OR LITERATURE, SCIENTIFIC
TREATISES, OR WORKS EXCITING SOCIAL CONTROVERSY.  MISTAKES OF THE PAST
PROVE THAT THERE IS A STRONG COUNTERVAILING INTEREST TO BE CONSIDERED
IN THE FREEDOMS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS. 

THE LINE DIVIDING THE SALACIOUS OR PORNOGRAPHIC FROM LITERATURE OR
SCIENCE IS NOT STRAIGHT AND UNWAVERING.  PRESENT LAWS DEPEND LARGELY
UPON THE EFFECT THAT THE MATERIALS MAY HAVE UPON THOSE WHO RECEIVE
THEM.  IT IS MANIFEST THAT THE SAME OBJECT MAY HAVE A DIFFERENT IMPACT,
VARYING ACCORDING TO THE PART OF THE COMMUNITY IT REACHED.  BUT THERE
IS MORE TO THESE CASES.  IT IS NOT THE BOOK THAT IS ON TRIAL; IT IS A
PERSON.  THE CONDUCT OF THE DEFENDANT IS THE CENTRAL ISSUE, NOT THE
OBSCENITY OF A BOOK OR PICTURE.  THE NATURE OF THE MATERIALS IS, OF
COURSE, RELEVANT AS AN ATTRIBUTE OF THE DEFENDANT'S CONDUCT, BUT THE
MATERIALS ARE THUS PLACED IN CONTEXT FROM WHICH THEY DRAW COLOR AND
CHARACTER.  A WHOLLY DIFFERENT RESULT MIGHT BE REACHED IN A DIFFERENT
SETTING. 

THE PERSONAL ELEMENT IN THESE CASES IS SEEN MOST STRONGLY IN THE
REQUIREMENT OF SCIENTER.  UNDER THE CALIFORNIA LAW, THE PROHIBITED
ACTIVITY MUST BE DONE "WILFULLY AND LEWDLY."  THE FEDERAL STATUTE
LIMITS THE CRIME TO ACTS DONE "KNOWINGLY."  IN HIS CHARGE TO THE JURY,
THE DISTRICT JUDGE STATED THAT THE MATTER MUST BE "CALCULATED" TO
CORRUPT OR DEBAUCH.  THE DEFENDANTS IN BOTH THESE CASES WERE ENGAGED IN
THE BUSINESS OF PURVEYING TEXTUAL OR GRAPHIC MATTER OPENLY ADVERTISED
TO APPEAL TO THE EROTIC INTEREST OF THEIR CUSTOMERS.  THEY WERE PLAINLY
ENGAGED IN THE COMMERCIAL EXPLOITATION OF THE MORBID AND SHAMEFUL
CRAVING FOR MATERIALS WITH PRURIENT EFFECT.  I BELIEVE THAT THE STATE
AND FEDERAL GOVERNMENTS CAN CONSTITUTIONALLY PUNISH SUCH CONDUCT.  THAT
IS ALL THAT THESE CASES PRESENT TO US, AND THAT IS ALL WE NEED TO
DECIDE. 

I AGREE WITH THE COURT'S DECISION IN ITS REJECTION OF THE OTHER
CONTENTIONS RAISED BY THESE DEFENDANTS. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT IN NO. 61, AND
DISSENTING IN NO. 582. 

I REGRET NOT TO BE ABLE TO JOIN THE COURT'S OPINION.  I CANNOT DO SO
BECAUSE I FIND LURKING BENEATH ITS DISARMING GENERALIZATIONS A NUMBER
OF PROBLEMS WHICH NOT ONLY LEAVE ME WITH SERIOUS MISGIVINGS AS TO THE
FUTURE EFFECT OF TODAY'S DECISIONS, BUT WHICH ALSO, IN MY VIEW, CALL
FOR DIFFERENT RESULTS IN THESE TWO CASES. 

                                        I. 

MY BASIC DIFFICULTIES WITH THE COURT'S OPINION ARE THREEFOLD.  FIRST,
THE OPINION PAINTS WITH SUCH A BROAD BRUSH THAT I FEAR IT MAY RESULT IN
A LOOSENING OF THE TIGHT REINS WHICH STATE AND FEDERAL COURTS SHOULD
HOLD UPON THE ENFORCEMENT OF OBSCENITY STATUTES.  SECOND, THE COURT
FAILS TO DISCRIMINATE BETWEEN THE DIFFERENT FACTORS WHICH, IN MY
OPINION, ARE INVOLVED IN THE CONSTITUTIONAL ADJUDICATION OF STATE AND
FEDERAL OBSCENITY CASES.  THIRD, RELEVANT DISTINCTIONS BETWEEN THE TWO
OBSCENITY STATUTES HERE INVOLVED, AND THE COURT'S OWN DEFINITION OF
"OBSCENITY," ARE IGNORED. 

IN FINAL ANALYSIS, THE PROBLEM PRESENTED BY THESE CASES IS HOW FAR,
AND ON WHAT TERMS, THE STATE AND FEDERAL GOVERNMENTS HAVE POWER TO
PUNISH INDIVIDUALS FOR DISSEMINATING BOOKS CONSIDERED TO BE UNDESIRABLE
BECAUSE OF THEIR NATURE OR SUPPOSED DELETERIOUS EFFECT UPON HUMAN
CONDUCT.  PROCEEDING FROM THE PREMISE THAT "NO ISSUE IS PRESENTED IN
EITHER CASE, CONCERNING THE OBSCENITY OF THE MATERIAL INVOLVED," THE
COURT FINDS THE "DISPOSITIVE QUESTION" TO BE "WHETHER OBSCENITY IS
UTTERANCE WITHIN THE AREA OF PROTECTED SPEECH AND PRESS," AND THEN
HOLDS THAT "OBSCENITY" IS NOT SO PROTECTED BECAUSE IT IS "UTTERLY
WITHOUT REDEEMING SOCIAL IMPORTANCE."  THIS SWEEPING FORMULA APPEARS TO
ME TO BEG THE VERY QUESTION BEFORE US.  THE COURT SEEMS TO ASSUME THAT
"OBSCENITY" IS A PECULIAR GENUS OF "SPEECH AND PRESS," WHICH IS AS
DISTINCT, RECOGNIZABLE, AND CLASSIFIABLE AS POISON IVY IS AMONG OTHER
PLANTS.  ON THIS BASIS THE CONSTITUTIONAL QUESTION BEFORE US SIMPLY
BECOMES, AS THE COURT SAYS, WHETHER "OBSCENITY," AS AN ABSTRACTION, IS
PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENTS, AND THE QUESTION
WHETHER A PARTICULAR BOOK MAY BE SUPPRESSED BECOMES A MERE MATTER OF
CLASSIFICATION, OF "FACT," TO BE ENTRUSTED TO A FACT-FINDER AND
INSULATED FROM INDEPENDENT CONSTITUTIONAL JUDGMENT.  BUT SURELY THE
PROBLEM CANNOT BE SOLVED IN SUCH A GENERALIZED FASHION.  EVERY
COMMUNICATION HAS AN INDIVIDUALITY AND "VALUE" OF ITS OWN.  THE
SUPPRESSION OF A PARTICULAR WRITING OR OTHER TANGIBLE FORM OF
EXPRESSION IS, THEREFORE, AN INDIVIDUAL MATTER, AND IN THE NATURE OF
THINGS EVERY SUCH SUPPRESSION RAISES AN INDIVIDUAL CONSTITUTIONAL
PROBLEM, IN WHICH A REVIEWING COURT MUST DETERMINE FOR ITSELF WHETHER
THE ATTACKED EXPRESSION IS SUPPRESSABLE WITHIN CONSTITUTIONAL
STANDARDS.  SINCE THOSE STANDARDS DO NOT READILY LEND THEMSELVES TO
GENERALIZED DEFINITIONS, THE CONSTITUTIONAL PROBLEM IN THE LAST
ANALYSIS BECOMES ONE OF PARTICULARIZED JUDGMENTS WHICH APPELLATE COURTS
MUST MAKE FOR THEMSELVES. 

I DO NOT THINK THAT REVIEWING COURTS CAN ESCAPE THIS RESPONSIBILITY
BY SAYING THAT THE TRIER OF THE FACTS, BE IT A JURY OR A JUDGE, HAS
LABELED THE QUESTIONED MATTER AS "OBSCENE," FOR, IF "OBSCENITY" IS TO
BE SUPPRESSED, THE QUESTION WHETHER A PARTICULAR WORK IS OF THAT
CHARACTER INVOLVES NOT REALLY AN ISSUE OF FACT BUT A QUESTION OF
CONSTITUTIONAL JUDGMENT OF THE MOST SENSITIVE AND DELICATE KIND.  MANY
JURIES MIGHT FIND THAT JOYCE'S "ULYSSES" OR BOCACCIO'S "DECAMERON" WAS
OBSCENE, AND YET THE CONVICTION OF A DEFENDANT FOR SELLING EITHER BOOK
WOULD RAISE, FOR ME, THE GRAVEST CONSTITUTIONAL PROBLEMS, FOR NO SUCH
VERDICT COULD CONVINCE ME, WITHOUT MORE, THAT THESE BOOKS ARE "UTTERLY
WITHOUT REDEEMING SOCIAL IMPORTANCE."  IN SHORT, I DO NOT UNDERSTAND
HOW THE COURT CAN RESOLVE THE CONSTITUTIONAL PROBLEMS NOW BEFORE IT
WITHOUT MAKING ITS OWN INDEPENDENT JUDGMENT UPON THE CHARACTER OF THE
MATERIAL UPON WHICH THESE CONVICTIONS WERE BASED.  I AM VERY MUCH
AFRAID THAT THE BROAD MANNER IN WHICH THE COURT HAS DECIDED THESE CASES
WILL TEND TO OBSCURE THE PECULIAR RESPONSIBILITIES RESTING ON STATE AND
FEDERAL COURTS IN THIS FIELD AND ENCOURAGE THEM TO RELY ON EASY
LABELING AND JURY VERDICTS AS A SUBSTITUTE FOR FACING UP TO THE TOUGH
INDIVIDUAL PROBLEMS OF CONSTITUTIONAL JUDGMENT INVOLVED IN EVERY
OBSCENITY CASE. 

MY SECOND REASON FOR DISSATISFACTION WITH THE COURT'S OPINION IS THAT
THE BROAD STRIDES WITH WHICH THE COURT HAS PROCEEDED HAS LED IT TO
BRUSH ASIDE WITH PERFUNCTORY EASE THE VITAL CONSTITUTIONAL
CONSIDERATIONS WHICH, IN MY OPINION, DIFFERENTIATE THESE TWO CASES.  IT
DOES NOT SEEM TO MATTER TO THE COURT THAT IN ONE CASE WE BALANCE THE
POWER OF A STATE IN THIS FIELD AGAINST THE RESTRICTIONS OF THE
FOURTEENTH AMENDMENT, AND IN THE OTHER THE POWER OF THE FEDERAL
GOVERNMENT AGAINST THE LIMITATIONS OF THE FIRST AMENDMENT.  I DEAL WITH
THIS SUBJECT MORE PARTICULARLY LATER. 

THIRDLY, THE COURT HAS NOT BEEN BOTHERED BY THE FACT THAT THE TWO
CASES INVOLVE DIFFERENT STATUTES.  IN CALIFORNIA THE BOOK MUST HAVE A
"TENDENCY TO DEPRAVE OR CORRUPT ITS READERS"; UNDER THE FEDERAL STATUTE
IT MUST TEND "TO STIR SEXUAL IMPULSES AND LEAD TO SEXUALLY IMPURE
THOUGHTS."  (FN1)  THE TWO STATUTES DO NOT SEEM TO ME TO PRESENT THE
SAME PROBLEMS.  YET THE COURT COMPOUNDS CONFUSION WHEN IT SUPERIMPOSES
ON THESE TWO STATUTORY DEFINITIONS A THIRD, DRAWN FROM THE AMERICAN LAW
INSTITUTE'S MODEL PENAL CODE, TENTATIVE DRAFT NO. 6:  "A THING IS
OBSCENE IF, CONSIDERED AS A WHOLE, ITS PREDOMINANT APPEAL IS TO
PRURIENT INTEREST."  THE BLAND ASSURANCE THAT THIS DEFINITION IS THE
SAME AS THE ONES WITH WHICH WE DEAL FLIES IN THE FACE OF THE AUTHORS'
EXPRESS REJECTION OF THE "DEPRAVE AND CORRUPT" AND "SEXUAL THOUGHTS"
TESTS:    "OBSCENITY (IN THE TENTATIVE DRAFT) IS DEFINED IN TERMS OF
MATERIAL WHICH APPEALS PREDOMINANTLY TO PRURIENT INTEREST IN SEXUAL
MATTERS AND WHICH GOES BEYOND CUSTOMARY FREEDOM OF EXPRESSION IN THESE
MATTERS.  WE REJECT THE PREVAILING TEST OF TENDENCY TO AROUSE LUSTFUL
THOUGHTS OR DESIRES BECAUSE IT IS UNREALISTICALLY BROAD FOR A SOCIETY
THAT PLAINLY TOLERATES A GREAT DEAL OF EROTIC INTEREST IN LITERATURE,
ADVERTISING, AND ART, AND BECAUSE REGULATION OF THOUGHT OR DESIRE,
UNCONNECTED WITH OVERT MISBEHAVIOR, RAISES THE MOST ACUTE
CONSTITUTIONAL AS WELL AS PRACTICAL DIFFICULTIES.  WE LIKEWISE REJECT
THE COMMON DEFINITION OF OBSCENE AS THAT WHICH 'TENDS TO CORRUPT OR
DEBASE.'  IF THIS MEANS ANYTHING DIFFERENT FROM TENDENCY TO AROUSE
LUSTFUL THOUGHT AND DESIRE, IT SUGGESTS THAT CHANGE OF CHARACTER OR
ACTUAL MISBEHAVIOR FOLLOWS FROM CONTACT WITH OBSCENITY.  EVIDENCE OF
SUCH CONSEQUENCES IS LACKING  ...  .  ON THE OTHER HAND, 'APPEAL TO
PRURIENT INTEREST' REFERS TO QUALITIES OF THE MATERIAL ITSELF:  THE
CAPACITY TO ATTRACT INDIVIDUALS EAGER FOR A FORBIDDEN LOOK ...  ." 
(FN2) 

AS THIS PASSAGE MAKES CLEAR, THERE IS A SIGNIFICANT DISTINCTION
BETWEEN THE DEFINITIONS USED IN THE PROSECUTIONS BEFORE US, AND THE
AMERICAN LAW INSTITUTE FORMULA.  IF, THEREFORE, THE LATTER IS THE
CORRECT STANDARD, AS MY BROTHER BRENNAN ELSEWHERE INTIMATES, (FN3) THEN
THESE CONVICTIONS SHOULD SURELY BE REVERSED.  INSTEAD, THE COURT MERELY
ASSIMILATES THE VARIOUS TESTS INTO ONE INDISCRIMINATE POTPOURRI. 

I NOW PASS TO THE CONSIDERATION OF THE TWO CASES BEFORE US.

                            II. 

I CONCUR IN THE JUDGMENT OF THE COURT IN NO. 61, ALBERTS V.
CALIFORNIA. 

THE QUESTION IN THIS CASE IS WHETHER THE DEFENDANT WAS DEPRIVED OF
LIBERTY WITHOUT DUE PROCESS OF LAW WHEN HE WAS CONVICTED FOR SELLING
CERTAIN MATERIALS FOUND BY THE JUDGE TO BE OBSCENE BECAUSE THEY WOULD
HAVE A "TENDENCY TO DEPRAVE OR CORRUPT ITS READERS BY EXCITING
LASCIVIOUS THOUGHTS OR AROUSING LUSTFUL DESIRE." 

IN JUDGING THE CONSTITUTIONALITY OF THIS CONVICTION, WE SHOULD
REMEMBER THAT OUR FUNCTION IN REVIEWING STATE JUDGMENTS UNDER THE
FOURTEENTH AMENDMENT IS A NARROW ONE.  WE DO NOT DECIDE WHETHER THE
POLICY OF THE STATE IS WISE, OR WHETHER IT IS BASED ON ASSUMPTIONS
SCIENTIFICALLY SUBSTANTIATED.   WE CAN INQUIRE ONLY WHETHER THE STATE
ACTION SO SUBVERTS THE FUNDAMENTAL LIBERTIES IMPLICIT IN THE DUE
PROCESS CLAUSE THAT IT CANNOT BE SUSTAINED AS A RATIONAL EXERCISE OF
POWER.  SEE JACKSON, J., DISSENTING IN BEAUHARNAIS V. ILLINOIS, 343
U.S. 250, 287.  THE STATES' POWER TO MAKE PRINTED WORDS CRIMINAL IS, OF
COURSE, CONFINED BY THE FOURTEENTH AMENDMENT, BUT ONLY INSOFAR AS SUCH
POWER IS INCONSISTENT WITH OUR CONCEPTS OF "ORDERED LIBERTY."  PALKO V.
CONNECTICUT, 302 U.S. 319, 324-325. 

WHAT, THEN, IS THE PURPOSE OF THIS CALIFORNIA STATUTE?  CLEARLY THE
STATE LEGISLATURE HAS MADE THE JUDGMENT THAT PRINTED WORDS CAN "DEPRAVE
OR CORRUPT" THE READER - THAT WORDS CAN INCITE TO ANTISOCIAL OR IMMORAL
ACTION.  THE ASSUMPTION SEEMS TO BE THAT THE DISTRIBUTION OF CERTAIN
TYPES OF LITERATURE WILL INDUCE CRIMINAL OR IMMORAL SEXUAL CONDUCT.  IT
IS WELL KNOWN, OF COURSE, THAT THE VALIDITY OF THIS ASSUMPTION IS A
MATTER OF DISPUTE AMONG CRITICS, SOCIOLOGISTS, PSYCHIATRISTS, AND
PENOLOGISTS.  THERE IS A LARGE SCHOOL OF THOUGHT, PARTICULARLY IN THE
SCIENTIFIC COMMUNITY, WHICH DENIES ANY CAUSAL CONNECTION BETWEEN THE
READING OF PORNOGRAPHY AND IMMORALITY, CRIME, OR DELINQUENCY.  OTHERS
DISAGREE.  CLEARLY IT IS NOT OUR FUNCTION TO DECIDE THIS QUESTION. 
THAT FUNCTION BELONGS TO THE STATE LEGISLATURE.  NOTHING IN THE
CONSTITUTION REQUIRES CALIFORNIA TO ACCEPT AS TRUTH THE MOST ADVANCED
AND SOPHISTICATED PSYCHIATRIC OPINION.  IT SEEMS TO ME CLEAR THAT IT IS
NOT IRRATIONAL, IN OUR PRESENT STATE OF KNOWLEDGE, TO CONSIDER THAT
PORNOGRAPHY CAN INDUCE A TYPE OF SEXUAL CONDUCT WHICH A STATE MAY DEEM
OBNOXIOUS TO THE MORAL FABRIC OF SOCIETY.  IN FACT THE VERY DIVISION OF
OPINION ON THE SUBJECT COUNSELS US TO RESPECT THE CHOICE MADE BY THE
STATE. 

FURTHERMORE, EVEN ASSUMING THAT PORNOGRAPHY CANNOT BE DEEMED EVER TO
CAUSE, IN AN IMMEDIATE SENSE, CRIMINAL SEXUAL CONDUCT, OTHER INTERESTS
WITHIN THE PROPER COGNIZANCE OF THE STATES MAY BE PROTECTED BY THE
PROHIBITION PLACED ON SUCH MATERIALS.  THE STATE CAN REASONABLY DRAW
THE INFERENCE THAT OVER A LONG PERIOD OF TIME THE INDISCRIMINATE
DISSEMINATION OF MATERIALS, THE ESSENTIAL CHARACTER OF WHICH IS TO
DEGRADE SEX, WILL HAVE AN ERODING EFFECT ON MORAL STANDARDS.  AND THE
STATE HAS A LEGITIMATE INTEREST IN PROTECTING THE PRIVACY OF THE HOME
AGAINST INVASION OF UNSOLICITED OBSCENITY. 

ABOVE ALL STANDS THE REALIZATION THAT WE DEAL HERE WITH AN AREA WHERE
KNOWLEDGE IS SMALL, DATA ARE INSUFFICIENT, AND EXPERTS ARE DIVIDED. 
SINCE THE DOMAIN OF SEXUAL MORALITY IS PRE-EMINENTLY A MATTER OF STATE
CONCERN, THIS COURT SHOULD BE SLOW TO INTERFERE WITH STATE LEGISLATION
CALCULATED TO PROTECT THAT MORALITY.  IT SEEMS TO ME THAT NOTHING IN
THE BROAD AND FLEXIBLE COMMAND OF THE DUE PROCESS CLAUSE FORBIDS
CALIFORNIA TO PROSECUTE ONE WHO SELLS BOOKS WHOSE DOMINANT TENDENCY
MIGHT BE TO "DEPRAVE OR CORRUPT" A READER.  I AGREE WITH THE COURT, OF
COURSE, THAT THE BOOKS MUST BE JUDGED AS A WHOLE AND IN RELATION TO THE
NORMAL ADULT READER. 

WHAT HAS BEEN SAID, HOWEVER, DOES NOT DISPOSE OF THE CASE.  IT STILL
REMAINS FOR US TO DECIDE WHETHER THE STATE COURT'S DETERMINATION THAT
THIS MATERIAL SHOULD BE SUPPRESSED IS CONSISTENT WITH THE FOURTEENTH
AMENDMENT; AND THAT, OF COURSE, PRESENTS A FEDERAL QUESTION AS TO WHICH
WE, AND NOT THE STATE COURT, HAVE THE ULTIMATE RESPONSIBILITY.  AND SO,
IN THE FINAL ANALYSIS, I CONCUR IN THE JUDGMENT BECAUSE, UPON AN
INDEPENDENT PERUSAL OF THE MATERIAL INVOLVED, AND IN LIGHT OF THE
CONSIDERATIONS DISCUSSED ABOVE, I CANNOT SAY THAT ITS SUPPRESSION WOULD
SO INTERFERE WITH THE COMMUNICATION OF "IDEAS" IN ANY PROPER SENSE OF
THAT TERM THAT IT WOULD OFFEND THE DUE PROCESS CLAUSE.  I THEREFORE
AGREE WITH THE COURT THAT APPELLANT'S CONVICTION MUST BE AFFIRMED. 

  III. 

I DISSENT IN NO. 582, ROTH V. UNITED STATES. 

WE ARE FACED HERE WITH THE QUESTION WHETHER THE FEDERAL OBSCENITY
STATUTE, AS CONSTRUED AND APPLIED IN THIS CASE, VIOLATES THE FIRST
AMENDMENT TO THE CONSTITUTION.  TO ME, THIS QUESTION IS OF QUITE A
DIFFERENT ORDER THAN ONE WHERE WE ARE DEALING WITH STATE LEGISLATION
UNDER THE FOURTEENTH AMENDMENT.  I DO NOT THINK IT FOLLOWS THAT STATE
AND FEDERAL POWERS IN THIS AREA ARE THE SAME, AND THAT JUST BECAUSE THE
STATE MAY SUPPRESS A PARTICULAR UTTERANCE, IT IS AUTOMATICALLY
PERMISSIBLE FOR THE FEDERAL GOVERNMENT TO DO THE SAME.  I AGREE WITH
MR. JUSTICE JACKSON THAT THE HISTORICAL EVIDENCE DOES NOT BEAR OUT THE
CLAIM THAT THE FOURTEENTH AMENDMENT "INCORPORATES" THE FIRST IN ANY
LITERAL SENSE.  SEE BEAUHARNAIS V. ILLINOIS, SUPRA.  BUT LAYING ASIDE
ANY CONSEQUENCES WHICH MIGHT FLOW FROM THAT CONCLUSION, CF. MR. JUSTICE
HOLMES IN GITLOW V. NEW YORK, 268 U.S. 652, 672, (FN4) I PREFER TO REST
MY VIEWS ABOUT THIS CASE ON BROADER AND LESS ABSTRACT GROUNDS. 

THE CONSTITUTION DIFFERENTIATES BETWEEN THOSE AREAS OF HUMAN CONDUCT
SUBJECT TO THE REGULATION OF THE STATES AND THOSE SUBJECT TO THE POWERS
OF THE FEDERAL GOVERNMENT.  THE SUBSTANTIVE POWERS OF THE TWO
GOVERNMENTS, IN MANY INSTANCES, ARE DISTINCT.  AND IN EVERY CASE WHERE
WE ARE CALLED UPON TO BALANCE THE INTEREST IN FREE EXPRESSION AGAINST
OTHER INTERESTS, IT SEEMS TO ME IMPORTANT THAT WE SHOULD KEEP IN THE
FOREFRONT THE QUESTION OF WHETHER THOSE OTHER INTERESTS ARE STATE OR
FEDERAL.  SINCE UNDER OUR CONSTITUTIONAL SCHEME THE TWO ARE NOT
NECESSARILY EQUIVALENT, THE BALANCING PROCESS MUST NEEDS OFTEN PRODUCE
DIFFERENT RESULTS.  WHETHER A PARTICULAR LIMITATION ON SPEECH OR PRESS
IS TO BE UPHELD BECAUSE IT SUBSERVES A PARAMOUNT GOVERNMENTAL INTEREST
MUST, TO A LARGE EXTENT, I THINK, DEPEND ON WHETHER THAT GOVERNMENT
HAS, UNDER THE CONSTITUTION, A DIRECT SUBSTANTIVE INTEREST, THAT IS,
THE POWER TO ACT, IN THE PARTICULAR AREA INVOLVED. 

THE FEDERAL GOVERNMENT HAS, FOR EXAMPLE, POWER TO RESTRICT SEDITIOUS
SPEECH DIRECTED AGAINST IT, BECAUSE THAT GOVERNMENT CERTAINLY HAS THE
SUBSTANTIVE AUTHORITY TO PROTECT ITSELF AGAINST REVOLUTION.  CF.
PENNSYLVANIA V. NELSON, 350 U.S. 497.  BUT IN DEALING WITH OBSCENITY WE
ARE FACED WITH THE CONVERSE SITUATION, FOR THE INTERESTS WHICH
OBSCENITY STATUTES PURPORTEDLY PROTECT ARE PRIMARILY ENTRUSTED TO THE
CARE, NOT OF THE FEDERAL GOVERNMENT, BUT OF THE STATES.  CONGRESS HAS
NO SUBSTANTIVE POWER OVER SEXUAL MORALITY.  SUCH POWERS AS THE FEDERAL
GOVERNMENT HAS IN THIS FIELD ARE BUT INCIDENTAL TO ITS OTHER POWERS,
HERE THE POSTAL POWER, AND ARE NOT OF THE SAME NATURE AS THOSE
POSSESSED BY THE STATES, WHICH BEAR DIRECT RESPONSIBILITY FOR THE
PROTECTION OF THE LOCAL MORAL FABRIC.  (FN5) 

WHAT MR. JUSTICE JACKSON SAID IN BEAUHARNAIS, SUPRA, 343 U.S., AT 294
295, ABOUT CRIMINAL LIBEL IS EQUALLY TRUE OF OBSCENITY: 

"THE INAPPROPRIATENESS OF A SINGLE STANDARD FOR RESTRICTING STATE AND
NATION IS INDICATED BY THE DISPARITY BETWEEN THEIR FUNCTIONS AND DUTIES
IN RELATION TO THOSE FREEDOMS.  CRIMINALITY OF DEFAMATION IS PREDICATED
UPON POWER EITHER TO PROTECT THE PRIVATE RIGHT TO ENJOY INTEGRITY OF
REPUTATION OR THE PUBLIC RIGHT TO TRANQUILLITY.  NEITHER OF THESE ARE
OBJECTS OF FEDERAL COGNIZANCE EXCEPT WHEN NECESSARY TO THE
ACCOMPLISHMENT OF SOME DELEGATED POWER  ...  .  WHEN THE FEDERAL
GOVERNMENT PUTS LIBERTY OF PRESS IN ONE SCALE, IT HAS A VERY LIMITED
DUTY TO PERSONAL REPUTATION OR LOCAL TRANQUILLITY TO WEIGH AGAINST IT
IN THE OTHER.  BUT STATE ACTION AFFECTING SPEECH OR PRESS CAN AND
SHOULD BE WEIGHED AGAINST AND RECONCILED WITH THESE CONFLICTING SOCIAL
INTERESTS." 

NOT ONLY IS THE FEDERAL INTEREST IN PROTECTING THE NATION AGAINST
PORNOGRAPHY ATTENUATED, BUT THE DANGERS OF FEDERAL CENSORSHIP IN THIS
FIELD ARE FAR GREATER THAN ANYTHING THE STATES MAY DO.  IT HAS OFTEN
BEEN SAID THAT ONE OF THE GREAT STRENGTHS OF OUR FEDERAL SYSTEM IS THAT
WE HAVE, IN THE FORTY-EIGHT STATES, FORTY-EIGHT EXPERIMENTAL SOCIAL
LABORATORIES.  "STATE STATUTORY LAW REFLECTS PREDOMINANTLY THIS
CAPACITY OF A LEGISLATURE TO INTRODUCE NOVEL TECHNIQUES OF SOCIAL
CONTROL.  THE FEDERAL SYSTEM HAS THE IMMENSE ADVANTAGE OF PROVIDING
FORTY-EIGHT SEPARATE CENTERS FOR SUCH EXPERIMENTATION."  (FN6)
DIFFERENT STATES WILL HAVE DIFFERENT ATTITUDES TOWARD THE SAME WORK OF
LITERATURE.  THE SAME BOOK WHICH IS FREELY READ IN ONE STATE MIGHT BE
CLASSED AS OBSCENE IN ANOTHER.   (FN7)  AND IT SEEMS TO ME THAT NO
OVERWHELMING DANGER TO OUR FREEDOM TO EXPERIMENT AND TO GRATIFY OUR
TASTES IN LITERATURE IS LIKELY TO RESULT FROM THE SUPPRESSION OF A
BORDERLINE BOOK IN ONE OF THE STATES, SO LONG AS THERE IS NO UNIFORM
NATION-WIDE SUPPRESSION OF THE BOOK, AND SO LONG AS OTHER STATES ARE
FREE TO EXPERIMENT WITH THE SAME OR BOLDER BOOKS. 

QUITE A DIFFERENT SITUATION IS PRESENTED, HOWEVER, WHERE THE FEDERAL
GOVERNMENT IMPOSES THE BAN.  THE DANGER IS PERHAPS NOT GREAT IF THE
PEOPLE OF ONE STATE, THROUGH THEIR LEGISLATURE, DECIDE THAT "LADY
CHATTERLEY'S LOVER" GOES SO FAR BEYOND THE ACCEPTABLE STANDARDS OF
CANDOR THAT IT WILL BE DEEMED OFFENSIVE AND NON-SELLABLE, FOR THE STATE
NEXT DOOR IS STILL FREE TO MAKE ITS OWN CHOICE.  AT LEAST WE DO NOT
HAVE ONE UNIFORM STANDARD.  BUT THE DANGERS TO FREE THOUGHT AND
EXPRESSION ARE TRULY GREAT IF THE FEDERAL GOVERNMENT IMPOSES A BLANKET
BAN OVER THE NATION ON SUCH A BOOK.  THE PREROGATIVE OF THE STATES TO
DIFFER ON THEIR IDEAS OF MORALITY WILL BE DESTROYED, THE ABILITY OF
STATES TO EXPERIMENT WILL BE STUNTED.  THE FACT THAT THE PEOPLE OF ONE
STATE CANNOT READ SOME OF THE WORKS OF D.H. LAWRENCE SEEMS TO ME, IF
NOT WISE OR DESIRABLE, AT LEAST ACCEPTABLE.  BUT THAT NO PERSON IN THE
UNITED STATES SHOULD BE ALLOWED TO DO SO SEEMS TO ME TO BE INTOLERABLE,
AND VIOLATIVE OF BOTH THE LETTER AND SPIRIT OF THE FIRST AMENDMENT. 

I JUDGE THIS CASE, THEN, IN VIEW OF WHAT I THINK IS THE ATTENUATED
FEDERAL INTEREST IN THIS FIELD, IN VIEW OF THE VERY REAL DANGER OF A
DEADENING UNIFORMITY WHICH CAN RESULT FROM NATION-WIDE FEDERAL
CENSORSHIP, AND IN VIEW OF THE FACT THAT THE CONSTITUTIONALITY OF THIS
CONVICTION MUST BE WEIGHED AGAINST THE FIRST AND NOT THE FOURTEENTH
AMENDMENT.  SO VIEWED, I DO NOT THINK THAT THIS CONVICTION CAN BE
UPHELD.  THE PETITIONER WAS CONVICTED UNDER A STATUTE WHICH, UNDER THE
JUDGE'S CHARGE, (FN8) MAKES IT CRIMINAL TO SELL BOOKS WHICH "TEND TO
STIR SEXUAL IMPULSES AND LEAD TO SEXUALLY IMPURE THOUGHTS."  I CANNOT
AGREE THAT ANY BOOK WHICH TENDS TO STIR SEXUAL IMPULSES AND LEAD TO
SEXUALLY IMPURE THOUGHTS NECESSARILY IS "UTTERLY WITHOUT REDEEMING
SOCIAL IMPORTANCE."  NOT ONLY DID THIS CHARGE FAIL TO MEASURE UP TO THE
STANDARDS WHICH I UNDERSTAND THE COURT TO APPROVE, BUT AS FAR AS I CAN
SEE, MUCH OF THE GREAT LITERATURE OF THE WORLD COULD LEAD TO CONVICTION
UNDER SUCH A VIEW OF THE STATUTE.  MOREOVER, IN NO EVENT DO I THINK
THAT THE LIMITED FEDERAL INTEREST IN THIS AREA CAN EXTEND TO MERE
"THOUGHTS."  THE FEDERAL GOVERNMENT HAS NO BUSINESS, WHETHER UNDER THE
POSTAL OR COMMERCE POWER, TO BAR THE SALE OF BOOKS BECAUSE THEY MIGHT
LEAD TO ANY KIND OF "THOUGHTS."  (FN9) 

IT IS NO ANSWER TO SAY, AS THE COURT DOES, THAT OBSCENITY IS NOT
PROTECTED SPEECH.  THE POINT IS THAT THIS STATUTE, AS HERE CONSTRUED,
DEFINES OBSCENITY SO WIDELY THAT IT ENCOMPASSES MATTERS WHICH MIGHT
VERY WELL BE PROTECTED SPEECH.  I DO NOT THINK THAT THE FEDERAL STATUTE
CAN BE CONSTITUTIONALLY CONSTRUED TO REACH OTHER THAN WHAT THE
GOVERNMENT HAS TERMED AS "HARD-CORE" PORNOGRAPHY.  NOR DO I THINK THE
STATUTE CAN FAIRLY BE READ AS DIRECTED ONLY AT PERSONS WHO ARE ENGAGED
IN THE BUSINESS OF CATERING TO THE PRURIENT MINDED, EVEN THOUGH THEIR
WARES FALL SHORT OF HARD-CORE PORNOGRAPHY.  SUCH A STATUTE WOULD RAISE
CONSTITUTIONAL QUESTIONS OF A DIFFERENT ORDER.  THAT BEING SO, AND
SINCE IN MY OPINION THE MATERIAL HERE INVOLVED CANNOT BE SAID TO BE
HARD-CORE PORNOGRAPHY, I WOULD REVERSE THIS CASE WITH INSTRUCTIONS TO
DISMISS THE INDICTMENT.    FN1  IN ALBERTS V. CALIFORNIA, THE STATE
DEFINITION OF "OBSCENITY" IS, OF COURSE, BINDING ON US. THE DEFINITION
THERE USED DERIVES FROM PEOPLE V. WEPPLO, 78 CAL. APP. 2D SUPP.  959,
178 P.2D 853, THE QUESTION BEING WHETHER THE MATERIAL HAS "A
SUBSTANTIVE TENDENCY TO DEPRAVE OR CORRUPT ITS READERS BY EXCITING
LASCIVIOUS THOUGHTS OR AROUSING LUSTFUL DESIRE." 

IN ROTH V. UNITED STATES, OUR GRANT OF CERTIORARI WAS LIMITED TO THE
QUESTION OF THE CONSTITUTIONALITY OF THE STATUTE, AND DID NOT EMCOMPASS
THE CORRECTNESS OF THE DEFINITION OF "OBSCENITY" ADOPTED BY THE TRIAL
JUDGE AS A MATTER OF STATUTORY CONSTRUCTION.  WE MUST THEREFORE ASSUME
THAT THE TRIAL JUDGE CORRECTLY DEFINED THAT TERM, AND DEAL WITH THE
CONSTITUTIONALITY OF THE STATUTE AS CONSTRUED AND APPLIED IN THIS
CASE. 

THE TWO DEFINITIONS DO NOT SEEM TO ME SYNONYMOUS.  UNDER THE FEDERAL
DEFINITION IT IS ENOUGH IF THE JURY FINDS THAT THE BOOK AS A WHOLE
LEADS TO CERTAIN THOUGHTS.  IN CALIFORNIA, THE FURTHER INFERENCE MUST
BE DRAWN THAT SUCH THOUGHTS WILL HAVE A SUBSTANTIVE "TENDENCY TO
DEPRAVE OR CORRUPT" - I.E., THAT THE THOUGHTS INDUCED BY THE MATERIAL
WILL AFFECT CHARACTER AND ACTION.  SEE AMERICAN LAW INSTITUTE, MODEL
PENAL CODE, TENTATIVE DRAFT NO. 6, SEC. 207.10 (2), COMMENTS, P. 10. 

FN2  IBID. 

FN3  SEE DISSENTING OPINION OF MR. JUSTICE BRENNAN IN KINGSLEY BOOKS,
INC. V. BROWN, NO. 107, ANTE, P. 447. 

FN4  "THE GENERAL PRINCIPLE OF FREE SPEECH, IT SEEMS TO ME, MUST BE
TAKEN TO BE INCLUDED IN THE FOURTEENTH AMENDMENT, IN VIEW OF THE SCOPE
THAT HAS BEEN GIVEN TO THE WORD 'LIBERTY' AS THERE USED, ALTHOUGH
PERHAPS IT MAY BE ACCEPTED WITH A SOMEWHAT LARGER LATITUDE OF
INTERPRETATION THAN IS ALLOWED TO CONGRESS BY THE SWEEPING LANGUAGE
THAT GOVERNS OR OUGHT TO GOVERN THE LAWS OF THE UNITED STATES." 

FN5  THE HOARY DOGMA OF EX PARTE JACKSON, 96 U.S. 727, AND PUBLIC
CLEARING HOUSE V. COYNE, 194 U.S. 497, THAT THE USE OF THE MAILS IS A
PRIVILEGE ON WHICH THE GOVERNMENT MAY IMPOSE SUCH CONDITIONS AS IT
CHOOSES, HAS LONG SINCE EVAPORATED.  SEE BRANDEIS, J., DISSENTING, IN
MILWAUKEE SOCIAL DEMOCRATIC PUBLISHING CO. V. BURLESON, 255 U.S. 407,
430-433; HOLMES, J., DISSENTING, IN LEACH V. CARLILE, 258 U.S. 138,
140; CATES V. HADERLINE, 342 U.S. 804, REVERSING 189 F.2D 369; DOOR V.
DONALDSON, 90 U.S. APP. D.C. 188, 195 F.2D 764. 

FN6  HART, THE RELATIONS BETWEEN STATE AND FEDERAL LAW, 54 COL. L.
REV. 489, 493. 

FN7  TO GIVE ONLY A FEW EXAMPLES:  EDMUND WILSON'S "MEMOIRS OF HECATE
COUNTY" WAS FOUND OBSCENE IN NEW YORK, SEE DOUBLEDAY & CO. V. NEW YORK,
335 U.S. 848; A BOOKSELLER INDICTED FOR SELLING THE SAME BOOK WAS
ACQUITTED IN CALIFORNIA.  "GOD'S LITTLE ACRE" WAS HELD TO BE OBSCENE IN
MASSACHUSETTS, NOT OBSCENE IN NEW YORK AND PENNSYLVANIA. 

FN8  WHILE THE CORRECTNESS OF THE JUDGE'S CHARGE IS NOT BEFORE US,
THE QUESTION IS NECESSARILY SUBSUMED IN THE BROADER QUESTION INVOLVING
THE CONSTITUTIONALITY OF THE STATUTE AS APPLIED IN THIS CASE. 

FN9  SEE AMERICAN LAW INSTITUTE, MODEL PENAL CODE, TENTATIVE DRAFT
NO. 6, SEC. 207.10, COMMENTS, P. 20:  "AS AN INDEPENDENT GOAL OF PENAL
LEGISLATION, REPRESSION OF SEXUAL THOUGHTS AND DESIRES IS HARD TO
SUPPORT.  THOUGHTS AND DESIRES NOT MANIFESTED IN OVERT ANTISOCIAL
BEHAVIOR ARE GENERALLY REGARDED AS THE EXCLUSIVE CONCERN OF THE
INDIVIDUAL AND HIS SPIRITUAL ADVISORS." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

WHEN WE SUSTAIN THESE CONVICTIONS, WE MAKE THE LEGALITY OF A
PUBLICATION TURN ON THE PURITY OF THOUGHT WHICH A BOOK OR TRACT
INSTILLS IN THE MIND OF THE READER.  I DO NOT THINK WE CAN APPROVE THAT
STANDARD AND BE FAITHFUL TO THE COMMAND OF THE FIRST AMENDMENT, WHICH
BY ITS TERMS IS A RESTRAINT ON CONGRESS AND WHICH BY THE FOURTEENTH IS
A RESTRAINT ON THE STATES. 

IN THE ROTH CASE THE TRIAL JUDGE CHARGED THE JURY THAT THE STATUTORY
WORDS "OBSCENE, LEWD AND LASCIVIOUS" DESCRIBE "THAT FORM OF IMMORALITY
WHICH HAS RELATION TO SEXUAL IMPURITY AND HAS A TENDENCY TO EXCITE
LUSTFUL THOUGHTS."  HE STATED THAT THE TERM "FILTHY" IN THE STATUTE
PERTAINS "TO THAT SORT OF TREATMENT OF SEXUAL MATTERS IN SUCH A VULGAR
AND INDECENT WAY, SO THAT IT TENDS TO AROUSE A FEELING OF DISGUST AND
REVULSION."  HE WENT ON TO SAY THAT THE MATERIAL "MUST BE CALCULATED TO
CORRUPT AND DEBAUCH THE MINDS AND MORALS" OF "THE AVERAGE PERSON IN THE
COMMUNITY," NOT THOSE OF ANY PARTICULAR CLASS.  "YOU JUDGE THE
CIRCULARS, PICTURES AND PUBLICATIONS WHICH HAVE BEEN PUT IN EVIDENCE BY
PRESENT-DAY STANDARDS OF THE COMMUNITY.  YOU MAY ASK YOURSELVES DOES IT
OFFEND THE COMMON CONSCIENCE OF THE COMMUNITY BY PRESENT-DAY
STANDARDS." 

THE TRIAL JUDGE WHO, SITTING WITHOUT A JURY, HEARD THE ALBERTS CASE
AND THE APPELLATE COURT THAT SUSTAINED THE JUDGMENT OF CONVICTION, TOOK
CALIFORNIA'S DEFINITION OF "OBSCENITY" FROM PEOPLE V. WEPPLO, 78 CAL.
APP. 2D SUPP. 959, 961, 178 P.2D 853, 855.  THAT CASE HELD THAT A BOOK
IS OBSCENE "IF IT HAS A SUBSTANTIAL TENDENCY TO DEPRAVE OR CORRUPT ITS
READERS BY INCITING LASCIVIOUS THOUGHTS OR AROUSING LUSTFUL DESIRE." 

BY THESE STANDARDS PUNISHMENT IS INFLICTED FOR THOUGHTS PROVOKED, NOT
FOR OVERT ACTS NOR ANTISOCIAL CONDUCT.  THIS TEST CANNOT BE SQUARED
WITH OUR DECISIONS UNDER THE FIRST AMENDMENT.  EVEN THE ILL-STARRED
DENNIS CASE CONCEDED THAT SPEECH TO BE PUNISHABLE MUST HAVE SOME
RELATION TO ACTION WHICH COULD BE PENALIZED BY GOVERNMENT.  DENNIS V.
UNITED STATES, 341 U.S. 494, 502-511.  CF. CHAFEE, THE BLESSINGS OF
LIBERTY (1956), P. 69.  THIS ISSUE CANNOT BE AVOIDED BY SAYING THAT
OBSCENITY IS NOT PROTECTED BY THE FIRST AMENDMENT.  THE QUESTION
REMAINS, WHAT IS THE CONSTITUTIONAL TEST OF OBSCENITY? 

THE TESTS BY WHICH THESE CONVICTIONS WERE OBTAINED REQUIRE ONLY THE
AROUSING OF SEXUAL THOUGHTS.  YET THE AROUSING OF SEXUAL THOUGHTS AND
DESIRES HAPPENS EVERY DAY IN MORMAL LIFE IN DOZENS OF WAYS.  NEARLY 30
YEARS AGO A QUESTIONNAIRE SENT TO COLLEGE AND NORMAL SCHOOL WOMEN
GRADUATED ASKED WHAT THINGS WERE MOST STIMULATING SEXUALLY.  OF 409
REPLIES, 9 SAID "MUSIC"; 18 SAID "PICTURES"; 29 SAID "DANCING"; 40 SAID
"DRAMA"; 95 SAID "BOOKS"; AND 218 SAID "MAN."  ALPERT, JUDICIAL
CENSORSHIP OF OBSCENE LITERATURE, 52 HARV. L. REV. 40, 73. 

THE TEST OF OBSCENITY THE COURT ENDORSES TODAY GIVES THE CENSOR FREE
RANGE OVER A VAST DOMAIN.  TO ALLOW THE STATE TO STEP IN AND PUNISH
MERE SPEECH OR PUBLICATION THAT THE JUDGE OR THE JURY THINKS HAS AN
UNDESIRABLE IMPACT ON THOUGHTS BUT THAT IS NOT SHOWN TO BE A PART OF
UNLAWFUL ACTION IS DRASTICALLY TO CURTAIL THE FIRST AMENDMENT.  AS
RECENTLY STATED BY TWO OF OUR OUTSTANDING AUTHORITIES ON OBSCENITY,
"THE DANGER OF INFLUENCING A CHANGE IN THE CURRENT MORAL STANDARDS OF
THE COMMUNITY, OR OF SHOCKING OR OFFENDING READERS, OR OF STIMULATING
SEX THOUGHTS OR DESIRES APART FROM OBJECTIVE CONDUCT, CAN NEVER JUSTIFY
THE LOSSES TO SOCIETY THAT RESULT FROM INTERFERENCE WITH LITERARY
FREEDOM."  LOCKHART & MCCLURE, LITERATURE, THE LAW OF OBSCENITY, AND
THE CONSTITUTION, 38 MINN. L. REV. 295, 387. 

IF WE WERE CERTAIN THAT IMPURITY OF SEXUAL THOUGHTS IMPELLED TO
ACTION, WE WOULD BE ON LESS DANGEROUS GROUND IN PUNISHING THE
DISTRIBUTORS OF THIS SEX LITERATURE.  BUT IT IS BY NO MEANS CLEAR THAT
OBSCENE LITERATURE, AS SO DEFINED, IS A SIGNIFICANT FACTOR IN
INFLUENCING SUBSTANTIAL DEVIATIONS FROM THE COMMUNITY STANDARDS. 

"THERE ARE A NUMBER OF REASONS FOR REAL AND SUBSTANTIAL DOUBTS AS TO
THE SOUNDNESS OF THAT HYPOTHESIS.  (1) SCIENTIFIC STUDIES OF JUVENILE
DELINQUENCY DEMONSTRATE THAT THOSE WHO GET INTO TROUBLE, AND ARE THE
GREATEST CONCERN OF THE ADVOCATES OF CENSORSHIP, ARE FAR LESS INCLINED
TO READ THAN THOSE WHO DO NOT BECOME DELINQUENT.  THE DELINQUENTS ARE
GENERALLY THE ADVENTUROUS TYPE, WHO HAVE LITTLE USE FOR READING AND
OTHER NON-ACTIVE ENTERTAINMENT.  THUS, EVEN ASSUMING THAT READING
SOMETIMES HAS AN ADVERSE EFFECT UPON MORAL CONDUCT, THE EFFECT IS NOT
LIKELY TO BE SUBSTANTIAL, FOR THOSE WHO ARE SUSCEPTIBLE SELDOM READ. 
(2) SHELDON AND ELEANOR GLUECK, WHO ARE AMONG THE COUNTRY'S LEADING
AUTHORITIES ON THE TREATMENT AND CAUSES OF JUVENILE DELINQUENCY, HAVE
RECENTLY PUBLISHED THE RESULTS OF A TEN YEAR STUDY OF ITS CAUSES.  THEY
EXHAUSTIVELY STUDIED APPROXIMATELY 90 FACTORS AND INFLUENCES THAT MIGHT
LEAD TO OR EXPLAIN JUVENILE DELINQUENCY, BUT THE GLUECKS GAVE NO
CONSIDERATION TO THE TYPE OF READING MATERIAL, IF ANY, READ BY THE
DELINQUENTS.  THIS IS, OF COURSE, CONSISTENT WITH THEIR FINDING THAT
DELINQUENTS READ VERY LITTLE.  WHEN THOSE WHO KNOW SO MUCH ABOUT THE
PROBLEM OF DELINQUENCY AMONG YOUTH - THE VERY GROUP ABOUT WHOM THE
ADVOCATES OF CENSORSHIP ARE MOST CONCERNED - CONCLUDE THAT WHAT
DELINQUENTS READ HAS SO LITTLE EFFECT UPON THEIR CONDUCT THAT IT IS NOT
WORTH INVESTIGATING IN AN EXHAUSTIVE STUDY OF CAUSES, THERE IS GOOD
REASON FOR SERIOUS DOUBT CONCERNING THE BASIC HYPOTHESIS ON WHICH
OBSCENITY CENSORSHIP IS DEFENDED.  (3) THE MANY OTHER INFLUENCES IN
SOCIETY THAT STIMULATE SEXUAL DESIRE ARE SO MUCH MORE FREQUENT IN THEIR
INFLUENCE, AND SO MUCH MORE POTENT IN THEIR EFFECT, THAT THE INFLUENCE
OF READING IS LIKELY, AT MOST, TO BE RELATIVELY INSIGNIFICANT IN THE
COMPOSITE OF FORCES THAT LEAD AN INDIVIDUAL INTO CONDUCT DEVIATING FROM
THE COMMUNITY SEX STANDARDS.  THE KINSEY STUDIES SHOW THE MINOR DEGREE
TO WHICH LITERATURE SERVES AS A POTENT SEXUAL STIMULANT.  AND THE
STUDIES DEMONSTRATING THAT SEX KNOWLEDGE SELDOM RESULTS FROM READING
INDICATES THE RELATIVE UNIMPORTANCE OF LITERATURE IN SEX THOUGHTS AS
COMPARED WITH OTHER FACTORS IN SOCIETY."  LOCKHART & MCCLURE, OP. CIT.
SUPRA, PP. 385-386. 

THE ABSENCE OF DEPENDABLE INFORMATION ON THE EFFECT OF OBSCENE
LITERATURE ON HUMAN CONDUCT SHOULD MAKE US WARY.  IT SHOULD PUT US ON
THE SIDE OF PROTECTING SOCIETY'S INTEREST IN LITERATURE, EXCEPT AND
UNLESS IT CAN BE SAID THAT THE PARTICULAR PUBLICATION HAS AN IMPACT ON
ACTION THAT THE GOVERNMENT CAN CONTROL. 

AS NOTED, THE TRIAL JUDGE IN THE ROTH CASE CHARGED THE JURY IN THE
ALTERNATIVE THAT THE FEDERAL OBSCENITY STATUTE OUTLAWS LITERATURE
DEALING WITH SEX WHICH OFFENDS "THE COMMON CONSCIENCE OF THE
COMMUNITY."  THAT STANDARD IS, IN MY VIEW, MORE INIMICAL STILL TO
FREEDOM OF EXPRESSION. 

THE STANDARD OF WHAT OFFENDS "THE COMMON CONSCIENCE OF THE COMMUNITY"
CONFLICTS, IN MY JUDGMENT, WITH THE COMMAND OF THE FIRST AMENDMENT THAT
"CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING THE FREEDOM OF SPEECH, OR
OF THE PRESS."  CERTAINLY THAT STANDARD WOULD NOT BE AN ACCEPTABLE ONE
IF RELIGION, ECONOMICS, POLITICS OR PHILOSOPHY WERE INVOLVED.  HOW DOES
IT BECOME A CONSTITUTIONAL STANDARD WHEN LITERATURE TREATING WITH SEX
IS CONCERNED? 

ANY TEST THAT TURNS ON WHAT IS OFFENSIVE TO THE COMMUNITY'S STANDARDS
IS TOO LOOSE, TOO CAPRICIOUS, TOO DESTRUCTIVE OF FREEDOM OF EXPRESSION
TO BE SQUARED WITH THE FIRST AMENDMENT.  UNDER THAT TEST, JURIES CAN
CENSOR, SUPPRESS, AND PUNISH WHAT THEY DON'T LIKE, PROVIDED THE MATTER
RELATES TO "SEXUAL IMPURITY" OR HAS A TENDENCY "TO EXCITE LUSTFUL
THOUGHTS."  THIS IS COMMUNITY CENSORSHIP IN ONE OF ITS WORST FORMS.  IT
CREATES A REGIME WHERE IN THE BATTLE BETWEEN THE LITERATI AND THE
PHILISTINES, THE PHILISTINES ARE CERTAIN TO WIN.  IF EXPERIENCE IN THIS
FIELD TEACHES ANYTHING, IT IS THAT "CENSORSHIP OF OBSCENITY HAS ALMOST
ALWAYS BEEN BOTH IRRATIONAL AND INDISCRIMINATE."  LOCKHART & MCCLURE,
OP. CIT. SUPRA, AT 371.  THE TEST ADOPTED HERE ACCENTUATES THAT TREND. 

I ASSUME THERE IS NOTHING IN THE CONSTITUTION WHICH FORBIDS CONGRESS
FROM USING ITS POWER OVER THE MAILS TO PROSCRIBE CONDUCT ON THE GROUNDS
OF GOOD MORALS.  NO ONE WOULD SUGGEST THAT THE FIRST AMENDMENT PERMITS
NUDITY IN PUBLIC PLACES, ADULTERY, AND OTHER PHASES OF SEXUAL
MISCONDUCT. 

I CAN UNDERSTAND (AND AT TIMES EVEN SYMPATHIZE) WITH PROGRAMS OF
CIVIC GROUPS AND CHURCH GROUPS TO PROTECT AND DEFEND THE EXISTING MORAL
STANDARDS OF THE COMMUNITY.  I CAN UNDERSTAND THE MOTIVES OF THE
ANTHONY COMSTOCKS WHO WOULD IMPOSE VICTORIAN STANDARDS ON THE
COMMUNITY.  WHEN SPEECH ALONE IS INVOLVED, I DO NOT THINK THAT
GOVERNMENT, CONSISTENTLY WITH THE FIRST AMENDMENT, CAN BECOME THE
SPONSOR OF ANY OF THESE MOVEMENTS.  I DO NOT THINK THAT GOVERNMENT,
CONSISTENTLY WITH THE FIRST AMENDMENT, CAN THROW ITS WEIGHT BEHIND ONE
SCHOOL OR ANOTHER.  GOVERNMENT SHOULD BE CONCERNED WITH ANTISOCIAL
CONDUCT, NOT WITH UTTERANCES.  THUS, IF THE FIRST AMENDMENT GUARANTEE
OF FREEDOM OF SPEECH AND PRESS IS TO MEAN ANYTHING IN THIS FIELD, IT
MUST ALLOW PROTESTS EVEN AGAINST THE MORAL CODE THAT THE STANDARD OF
THE DAY SETS FOR THE COMMUNITY.  IN OTHER WORDS, LITERATURE SHOULD NOT
BE SUPPRESSED MERELY BECAUSE IT OFFENDS THE MORAL CODE OF THE CENSOR. 

THE LEGALITY OF A PUBLICATION IN THIS COUNTRY SHOULD NEVER BE ALLOWED
TO TURN EITHER ON THE PURITY OF THOUGHT WHICH IT INSTILLS IN THE MIND
OF THE READER OR ON THE DEGREE TO WHICH IT OFFENDS THE COMMUNITY
CONSCIENCE.  BY EITHER TEST THE ROLE OF THE CENSOR IS EXALTED, AND
SOCIETY'S VALUES IN LITERARY FREEDOM ARE SACRIFICED. 

THE COURT TODAY SUGGESTS A THIRD STANDARD.  IT DEFINES OBSCENE
MATERIAL AS THAT "WHICH DEALS WITH SEX IN A MANNER APPEALING TO
PRURIENT INTEREST."*  LIKE THE STANDARDS APPLIED BY THE TRIAL JUDGES
BELOW, THAT STANDARD DOES NOT REQUIRE ANY NEXUS BETWEEN THE LITERATURE
WHICH IS PROHIBITED AND ACTION WHICH THE LEGISLATURE CAN REGULATE OR
PROHIBIT.  UNDER THE FIRST AMENDMENT, THAT STANDARD IS NO MORE VALID
THAN THOSE WHICH THE COURTS BELOW ADOPTED.    *THE DEFINITION OF
OBSCENITY WHICH THE COURT ADOPTS SEEMS IN SUBSTANCE TO BE THAT ADOPTED
BY THOSE WHO DRAFTED THE A.L.I., MODEL PENAL CODE.  SEC. 207.10 (2)
(TENTATIVE DRAFT NO. 6, 1957). 

"OBSCENITY IS DEFINED IN TERMS OF MATERIAL WHICH APPEALS
PREDOMINANTLY TO PRURIENT INTEREST IN SEXUAL MATTERS AND WHICH GOES
BEYOND CUSTOMARY FREEDOM OF EXPRESSION IN THESE MATTERS.  WE REJECT THE
PREVAILING TESTS OF TENDENCY TO AROUSE LUSTFUL THOUGHTS OR DESIRES
BECAUSE IT IS UNREALISTICALLY BROAD FOR A SOCIETY THAT PLAINLY
TOLERATES A GREAT DEAL OF EROTIC INTEREST IN LITERATURE, ADVERTISING,
AND ART, AND BECAUSE REGULATION OF THOUGHT OR DESIRE, UNCONNECTED WITH
OVERT MISBEHAVIOR, RAISES THE MOST ACUTE CONSTITUTIONAL AS WELL AS
PRACTICAL DIFFICULTIES."  ID., AT 10.    I DO NOT THINK THAT THE
PROBLEM CAN BE RESOLVED BY THE COURT'S STATEMENT THAT "OBSCENITY IS NOT
EXPRESSION PROTECTED BY THE FIRST AMENDMENT."  WITH THE EXCEPTION OF
BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, NONE OF OUR CASES HAS RESOLVED
PROBLEMS OF FREE SPEECH AND FREE PRESS BY PLACING ANY FORM OF
EXPRESSION BEYOND THE PALE OF THE ABSOLUTE PROHIBITION OF THE FIRST
AMENDMENT.  UNLIKE THE LAW OF LIBEL, WRONGFULLY RELIED ON IN
BEAUHARNAIS, THERE IS NO SPECIAL HISTORICAL EVIDENCE THAT LITERATURE
DEALING WITH SEX WAS INTENDED TO BE TREATED IN A SPECIAL MANNER BY
THOSE WHO DRAFTED THE FIRST AMENDMENT.  IN FACT, THE FIRST REPORTED
COURT DECISION IN THIS COUNTRY INVOLVING OBSCENE LITERATURE WAS IN
1821.  LOCKHART & MCCLURE, OP. CIT. SUPRA, AT 324, N. 200.  I REJECT
TOO THE IMPLICATION THAT PROBLEMS OF FREEDOM OF SPEECH AND OF THE PRESS
ARE TO BE RESOLVED BY WEIGHING AGAINST THE VALUES OF FREE EXPRESSION,
THE JUDGMENT OF THE COURT THAT A PARTICULAR FORM OF THAT EXPRESSION HAS
"NO REDEEMING SOCIAL IMPORTANCE."  THE FIRST AMENDMENT, ITS PROHIBITION
IN TERMS ABSOLUTE, WAS DESIGNED TO PRECLUDE COURTS AS WELL AS
LEGISLATURES FROM WEIGHING THE VALUES OF SPEECH AGAINST SILENCE.  THE
FIRST AMENDMENT PUTS FREE SPEECH IN THE PREFERRED POSITION. 

FREEDOM OF EXPRESSION CAN BE SUPPRESSED IF, AND TO THE EXTENT THAT,
IT IS SO CLOSELY BRIGADED WITH ILLEGAL ACTION AS TO BE AN INSEPARABLE
PART OF IT.  GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490, 498; LABOR
BOARD V. VIRGINIA POWER CO., 314 U.S. 469, 477-478.  AS A PEOPLE, WE
CANNOT AFFORD TO RELAX THAT STANDARD.  FOR THE TEST THAT SUPPRESSES A
CHEAP TRACT TODAY CAN SUPPRESS A LITERARY GEM TOMORROW.  ALL IT NEED DO
IS TO INCITE A LASCIVIOUS THOUGHT OR AROUSE A LUSTFUL DESIRE.  THE LIST
OF BOOKS THAT JUDGES OR JURIES CAN PLACE IN THAT CATEGORY IS ENDLESS. 

I WOULD GIVE THE BROAD SWEEP OF THE FIRST AMENDMENT FULL SUPPORT.  I
HAVE THE SAME CONFIDENCE IN THE ABILITY OF OUR PEOPLE TO REJECT NOXIOUS
LITERATURE AS I HAVE IN THEIR CAPACITY TO SORT OUT THE TRUE FROM THE
FALSE IN THEOLOGY, ECONOMICS, POLITICS, OR ANY OTHER FIELD. 
..END :



















UNITED STATES V. LOUISIANA 354 U.S. 515 


NO. 11, ORIGINAL.  ARGUED APRIL 8, 1957 - DECIDED JUNE 24, 1957. 


LEAVE TO INTERVENE IN THIS SUIT IS GRANTED TO THE STATES OF ALABAMA,
FLORIDA, MISSISSIPPI AND TEXAS, WITHOUT PREJUDICE TO THE PRESENT
MOTIONS OF THE UNITED STATES AND LOUISIANA, WHICH ARE CONTINUED. 

UNITED STATES V. LOUISIANA. 

ON MOTIONS OF THE UNITED STATES FOR JUDGMENT AND OF LOUISIANA FOR
LEAVE TO TAKE DEPOSITIONS. 

PER CURIAM. 

THE COURT HAS BEFORE IT THE MOTIONS OF THE UNITED STATES FOR JUDGMENT
AND OF LOUISIANA FOR LEAVE TO TAKE DEPOSITIONS.  AS A RESULT OF ITS
CONSIDERATION OF THESE MATTERS, INCLUDING THE REPRESENTATIONS MADE BY
THE STATE OF TEXAS IN ITS AMICUS CURIAE BRIEF, THE COURT IS OF THE
OPINION THAT THE ISSUES IN THIS LITIGATION ARE SO RELATED TO THE
POSSIBLE INTERESTS OF TEXAS, AND OTHER STATES SITUATED ON THE GULF OF
MEXICO, IN THE SUBJECT MATTER OF THIS SUIT, THAT THE JUST, ORDERLY, AND
EFFECTIVE DETERMINATION OF SUCH ISSUES REQUIRES THAT THEY BE
ADJUDICATED IN A PROCEEDING IN WHICH ALL THE INTERESTED PARTIES ARE
BEFORE THE COURT. 

ACCORDINGLY, TO THAT END, THE COURT, ACTING PURSUANT TO RULES 9(2)
AND (6) OF ITS REVISED RULES, RULE 21 OF THE FEDERAL RULES OF CIVIL
PROCEDURE, AND THE GENERAL EQUITY POWERS OF THE COURT, GRANTS LEAVE TO
EACH OF THE STATES OF ALABAMA, FLORIDA, MISSISSIPPI, AND TEXAS TO
INTERVENE IN THIS SUIT WITHIN 60 DAYS FROM THE DATE OF THIS OPINION,
WITH LEAVE TO THE UNITED STATES, WITHIN 60 DAYS THEREAFTER, TO FILE AN
AMENDED OR SUPPLEMENTAL COMPLAINT ADDING AS PARTIES TO THIS SUIT ANY OF
SUCH STATES AS SHALL NOT HAVE SO INTERVENED.  THE BRINGING IN OF SUCH
ADDITIONAL PARTIES SHALL BE WITHOUT PREJUDICE TO THE PRESENT MOTIONS OF
THE UNITED STATES AND LOUISIANA, SUBJECT ONLY TO SUCH TERMS AS JUSTICE
MAY REQUIRE VIS-A-VIS THE ADDITIONAL PARTIES.  MEANWHILE SUCH MOTIONS
ARE CONTINUED. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :










MCBRIDE V. TOLEDO TERMINAL RAILROAD CO. 354 U.S. 517 


NO. 972.  DECIDED JUNE 24, 1957.  - 166 OHIO ST. 129, 140 N.E.2D 319,
REVERSED AND REMANDED. 


IN AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IN AN OHIO
STATE COURT AGAINST RESPONDENT RAILROAD, A JURY AWARDED DAMAGES TO
PETITIONER FOR INJURIES SUSTAINED WHEN HIS FOOT SLIPPED OFF A LADDER ON
THE SIDE OF A BOXCAR.  THE TRIAL JUDGE ENTERED JUDGMENT FOR THE
RAILROAD, NOTWITHSTANDING THE VERDICT, ON THE GROUND THAT THE EVIDENCE
WAS NOT SUFFICIENT TO SUPPORT THE VERDICT.  A COURT OF APPEALS
REVERSED.  THE STATE SUPREME COURT REVERSED THE JUDGMENT OF THE COURT
OF APPEALS AND AFFIRMED THAT OF THE TRIAL COURT.  ON A PETITION TO THIS
COURT FOR CERTIORARI, HELD:  CERTIORARI IS GRANTED; THE JUDGMENT OF THE
STATE SUPREME COURT IS REVERSED; AND THE CAUSE IS REMANDED. 

MCBRIDE V. TOLEDO TERMINAL RAILROAD CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT OF THE
SUPREME COURT OF OHIO IS REVERSED, AND THE CAUSE IS REMANDED.  ROGERS
V. MISSOURI PACIFIC R. CO., 352 U.S. 500 (1957). 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE WHITTAKER JOINS, DISSENTS
FOR THE REASONS GIVEN IN HIS OPINION IN ROGERS V. MISSOURI PACIFIC R.
CO., 352 U.S. 500, 559 (1957). 

MR. JUSTICE FRANKFURTER, DISSENTING. 

IN ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500, 524, I GAVE MY
REASONS FOR DEEMING IT AN ABUSE OF THE COURT'S DISCRETIONARY CERTIORARI
JURISDICTION TO MAKE CASES ARISING UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT A CLASS EXCEPTION TO THE COURT'S PRINCIPLE AGAINST
GRANTING CERTIORARI WHEN ALL THAT IS INVOLVED IS THE EVALUATION OF
EVIDENCE.  THE CIRCUMSTANCES OF THE PRESENT CASE VIVIDLY EMPHASIZE THE
OBJECTIONS TO SUCH AN EXCEPTION. 

ALL THAT IS TO BE DETERMINED IN THIS CASE IS WHETHER THERE WERE
SUFFICIENT FACTS TO WARRANT A JURY IN FINDING THAT THE LIGHTING IN THE
SITUATION IN WHICH PETITIONER WORKED, ASSUMED TO BE INADEQUATE, CAUSED
IN WHOLE OR IN PART THE INJURY TO PETITIONER.  THE TRIAL JUDGE IN THE
COURT OF COMMON PLEAS THOUGHT NOT.  ON REVIEW, THE COURT OF APPEALS OF
LUCAS COUNTY REVERSED:  TWO JUDGES THOUGHT THERE WERE ENOUGH FACTS TO
JUSTIFY A JURY'S FINDING OF CAUSATION WHILE THE DISSENTING JUDGE AGREED
WITH THE TRIAL COURT.  ON REVIEW OF THIS REVERSAL, THE SUPREME COURT OF
OHIO, WITH ONE OF ITS SEVEN JUDGES NOT SITTING, UNANIMOUSLY REVERSED
THE COURT OF APPEALS AND RESTORED THE JUDGMENT OF THE TRIAL COURT.  166
OHIO ST. 129, 140 N.E.2D 319.  THUS, THIS ISSUE OF THE SUFFICIENCY OF
EVIDENCE FOR A JURY'S FINDING OF RELEVANT CAUSATION WAS PASSED ON BY
THE THREE COURTS IN THE HIERARCHY OF OHIO'S JUDICIARY.  OF THE TEN
JUDGES, EIGHT FOUND THE EVIDENCE INSUFFICIENT FOR A JURY TO GUESS AT
AND TWO THOUGHT THEY SHOULD BE ALLOWED TO GUESS - FOR DETERMINATION OF
CAUSATION IS INESCAPABLY GUESSING, INFORMED GUESSING IF YOU WILL, BUT
GUESSING. 

CONGRESS SAW FIT TO GIVE THE STATE COURTS JURISDICTION OF THE RIGHTS
IT CREATED BY THE FEDERAL EMPLOYERS' LIABILITY ACT.  PRESUMABLY, IT HAD
CONFIDENCE IN THE STATE COURTS FOR ENFORCEMENT OF THESE RIGHTS.  IT
EMPHASIZED THIS CONFIDENCE BY A SPECIAL ACT, PASSED MORE THAN FORTY
YEARS AGO, WHICH WITHDREW FROM THIS COURT WHAT THERETOFORE HAD BEEN
APPEALABILITY AS OF RIGHT OF JUDGMENTS OF STATE COURTS IN FEDERAL
EMPLOYERS' LIABILITY ACT CASES.  IT LEFT ADJUDICATIONS BROUGHT IN THE
STATE COURTS WITH THE STATE COURTS, EXCEPT IN INSTANCES APPLICABLE
GENERALLY TO THE JURISDICTION ON WRIT OF CERTIORARI, TO BE EXERCISED,
THAT IS, "ONLY WHERE THERE ARE SPECIAL AND IMPORTANT REASONS
THEREFOR."  RULE 19 OF THE REVISED RULES OF THIS COURT. 

IT CANNOT BE TOO OFTEN REPEATED.  THIS COURT HAS SAID AGAIN AND AGAIN
THAT A DIFFERENCE OF OPINION IN WEIGHING EVIDENCE IS NOT INCLUDED AMONG
"SPECIAL AND IMPORTANT REASONS" FOR GRANTING CERTIORARI.  ONE WOULD
SUPPOSE THAT AN EXAMINATION OF THE EVIDENCE BY THREE COURTS AND TEN
JUDGES OF OHIO WOULD BE PROOF THAT THE FACTS IN THE CASE HAVE BEEN
CONSCIENTIOUSLY CANVASSED.  A DIFFERENT CASE WOULD BE PRESENTED WERE
THIS COURT TO FIND THAT THE OHIO SUPREME COURT APPLIED WRONG LEGAL
STANDARDS TO THE PARTICULAR FACTS BEFORE IT OR EVINCED HOSTILITY TO THE
FEDERAL STATUTE.  EITHER ONE OF THESE GROUNDS WOULD PRESENT A FAIR
BASIS ON WHICH TO SEEK REVIEW HERE OF THE DECISION OF THE OHIO SUPREME
COURT.  BUT THAT IS NOT THE BASIS ON WHICH REVIEW WAS SOUGHT AND ON
WHICH IT IS GRANTED.  IN AGREEING TO TAKE THE CASE, THE COURT MERELY
ACCEDES TO THE NATURAL DESIRE OF AN UNSECCESSFUL PLAINTIFF TO HAVE ONE
MORE COURT GUESS WHETHER THERE WERE ENOUGH FACTS ON WHICH THE JURY
SHOULD BE ALLOWED TO DO ITS GUESSING.  AND SO THE NINE MEMBERS OF THE
HIGHEST TRIBUNAL IN THE LAND, PREOCCUPIED WITH MORE THAN ENOUGH CASES
INVOLVING THE GRAVEST ISSUES OF NATIONAL IMPORTANCE, ARE ASKED TO TAKE
ON THE TASK OF MAKING AN INDEPENDENT STUDY OF THE RECORD BELOW, (FOR I
MUST ASSUME THAT THOSE WHO REVIEW THE MERITS HAVE EXAMINED THE 294
PAGES OF THE RECORD), THE FOUR OPINIONS BELOW, AND THE BRIEFS OF
PARTIES, AFTER THREE COURTS AND TEN JUDGES OF OHIO HAVE CONSCIENTIOUSLY
DEALT WITH QUESTIONS THAT ARE NOT SPECIALIZED QUESTIONS OF FEDERAL LAW
AND INDEED CONSTITUTE PROBABLY THE MOST RECURRING STAPLE BUSINESS OF
THE COURTS THROUGHOUT THE COUNTRY. 

I MUST RESPECTFULLY DECLINE TO ASSUME THIS TASK.  THIS COURT FROM
TIME TO TIME IS COMPELLED TO HOLD THAT A FEDERAL COURT HAS ABUSED SOME
DISCRETIONARY JUDICIAL POWER.  ABUSE OF JUDICIAL DISCRETION IS A
TECHNICAL PHRASE TO EXPRESS A MISCONCEPTION OF THE JUDICIAL FUNCTION AS
EXERCISED IN A PARTICULAR SITUATION.  THERE IS NO APPEAL FROM SUCH
ABUSE OF JUDICIAL DISCRETION BY THIS COURT.  WHEN THERE IS SUCH A
MISUSE OF POWER, AS I DEEM IT TO BE IN MAKING AN EXCEPTION, IN EFFECT
IF NOT FORMALLY, OF CASES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
THAT TURN MERELY ON EVALUATION OF EVIDENCE, ONLY THE INDIVIDUAL
CONSCIENCE REMAINS.  SINCE THIS CASE UNDERSCORES THE REASONS FOR
DECLINING TO ASSOCIATE MYSELF IN WHAT I REGARD AS A MISUSE OF THE POWER
PROPERLY VESTED IN A MINORITY OF THIS COURT IN GRANTING CERTIORARI, I
HAVE NO CHOICE BUT TO CONCLUDE THAT THE WRIT OF CERTIORARI IN THIS CASE
HAS BEEN IMPROVIDENTLY GRANTED AND, HAVING BEEN GRANTED, SHOULD BE
DISMISSED. 

MR. JUSTICE BURTON, DISSENTING. 

FOR THE REASONS STATED BY THE SUPREME COURT OF OHIO, 166 OHIO ST.
129, 140 N.E.2D 319, I BELIEVE THAT PETITIONER'S INJURIES WERE NOT
CAUSED, "IN WHOLE OR IN PART," BY THE POSSIBLE INADEQUACY OF THE
LIGHTING. 
..END :






















FARLEY V. UNITED STATES 354 U.S. 521 


NO. 686, MISC.  DECIDED JUNE 24, 1957.  - 242 F.2D 338, JUDGMENT VACATED
AND CAUSE REMANDED. 


UNDER 28 U.S.C. SEC. 1915, PETITIONER APPLIED TO A FEDERAL DISTRICT
COURT FOR LEAVE TO APPEAL IN FORMA PAUPERIS FROM HIS CONVICTION OF BANK
ROBBERY AND ASKED FOR A TRANSCRIPT OF THE TRIAL RECORD.  THOUGH
CONFLICTING AFFIDAVITS CONCERNING PETITIONER'S CONTENTIONS OF ERRORS AT
HIS TRIAL HAD BEEN FILED, THE DISTRICT COURT REFUSED HIS REQUEST FOR A
TRANSCRIPT OF THE RECORD AND DENIED HIS APPLICATION FOR LEAVE TO APPEAL
IN FORMA PAUPERIS, ON THE GROUND THAT HIS APPEAL WAS "NOT TAKEN IN GOOD
FAITH."  PETITIONER THEN APPLIED TO THE COURT OF APPEALS FOR PERMISSION
TO APPEAL IN FORMA PAUPERIS; BUT THAT COURT DENIED HIS REQUEST,
INDICATING THAT HIS CLAIMED ERRORS WERE WITHOUT SUBSTANCE.  HELD:
PETITIONER HAS NOT BEEN AFFORDED AN ADEQUATE OPPORTUNITY TO SHOW THE
COURT OF APPEALS THAT HIS CLAIMED ERRORS ARE NOT FRIVOLOUS SO AS TO
ENABLE THAT COURT TO REVIEW PROPERLY THE DISTRICT COURT'S CERTIFICATION
THAT THE APPEAL WAS IN BAD FAITH.  ACCORDINGLY, THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED AND THE CAUSE IS REMANDED TO IT FOR FURTHER
PROCEEDINGS.  PP. 521-523. 

FARLEY V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, AS IS THE MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS. 

PETITIONER WAS CONVICTED OF BANK ROBBERY IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK AND SENTENCED TO 20
YEARS IMPRISONMENT.  UNDER 28 U.S.C. SEC. 1915 HE APPLIED TO THE
DISTRICT COURT FOR LEAVE TO APPEAL IN FORMA PAUPERIS.  PETITIONER, WHO
WAS ASSISTED BY COURT-APPOINTED COUNSEL IN PREPARING HIS APPLICATION,
CONTENDED THAT THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY HIS CONVICTION
AND THAT THE TRIAL COURT HAD COMMITTED REVERSIBLE ERROR BY PERMITTING
THE UNITED STATES ATTORNEY TO ASK HIM IRRELEVANT AND PREJUDICIAL
QUESTIONS ABOUT ANOTHER CRIMINAL OFFENSE.  PETITIONER REQUESTED THAT
THE DISTRICT COURT MAKE AVAILABLE A TRANSCRIPT OF THE TRIAL RECORD SO
HE COULD SUBSTANTIATE HIS CLAIMED ERRORS.  IN REPLY THE UNITED STATES
ATTORNEY FILED AN AFFIDAVIT ASSERTING THAT THE EVIDENCE WAS SUFFICIENT
TO SUSTAIN PETITIONER'S CONVICTION.  HOWEVER THE AFFIDAVIT DID NOT
DIRECTLY CONTROVERT PETITIONER'S CLAIM THAT THE PROSECUTING ATTORNEY
HAD BEEN ALLOWED TO INJECT IRRELEVANT AND PREJUDICIAL MATTER INTO THE
TRIAL.  COUNSEL FOR PETITIONER THEN FILED AN AFFIDAVIT IN ANSWER
SUPPORTING PETITIONER'S ALLEGATION OF ERRORS. 

THE DISTRICT COURT REFUSED THE REQUEST FOR A TRANSCRIPT OF THE TRIAL
RECORD AND DENIED THE APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
ON THE GROUND THAT THE APPEAL WAS "NOT TAKEN IN GOOD FAITH"  BECAUSE IT
WAS "FRIVOLOUS AND WITHOUT MERIT" AND "THE EVIDENCE AMPLY SUPPORTED THE
VERDICT."  PETITIONER THEN ASKED THE COURT OF APPEALS FOR PERMISSION TO
APPEAL IN FORMA PAUPERIS BUT THAT COURT DENIED HIS REQUEST INDICATING
THAT HIS CLAIMED ERRORS WERE WITHOUT SUBSTANCE.  242 F.2D 338.  AND SEE
238 F.2D 575. 

AS THINGS NOW STAND CONFLICTING AFFIDAVITS HAVE BEEN INTRODUCED
CONCERNING PETITIONER'S CONTENTION OF ERRORS AT THE TRIAL.  IF THE
ALLEGATIONS MADE BY PETITIONER AND HIS COUNSEL ARE CORRECT THEN IT
SEEMS QUITE CLEAR TO US THAT HIS APPEAL CANNOT BE CHARACTERIZED AS
FRIVOLOUS.  BEFORE HIS ALLEGATION OF ERRORS CAN BE ACCURATELY
EVALUATED, HOWEVER, TO ASCERTAIN IF THEY DO HAVE ANY MERIT HE SHOULD BE
FURNISHED WITH A TRANSCRIPT OF THE TRIAL RECORD - UNLESS COUNSEL CAN
AGREE ON A STATEMENT OF THE RELEVANT FACTS OR SOME OTHER MEANS ARE
DEVISED TO MAKE THE MINUTES OF THE TRIAL AVAILABLE TO PETITIONER - SO
THAT HE HAS AN OPPORTUNITY TO SUBSTANTIATE HIS ALLEGATIONS AND POINT
OUT THEIR SIGNIFICANCE AND SO THAT THEY CAN BE APPRAISED ON A
DEPENDABLE RECORD.  CF. JOHNSON V. UNITED STATES, 352 U.S. 565.  IN OUR
JUDGMENT PETITIONER HAS NOT YET BEEN AFFORDED AN ADEQUATE OPPORTUNITY
TO SHOW THE COURT OF APPEALS THAT HIS CLAIMED ERRORS ARE NOT FRIVOLOUS
SO AS TO ENABLE THAT COURT TO REVIEW PROPERLY THE DISTRICT COURT'S
CERTIFICATION THAT THE APPEAL WAS IN BAD FAITH.  ACCORDINGLY THE
JUDGMENT BELOW MUST BE VACATED AND THE CASE REMANDED TO THE COURT OF
APPEALS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT
IS SO ORDERED. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN DISSENT. 
..END :















WATKINS V. UNITED STATES 354 U.S. 178 


NO. 261.  ARGUED MARCH 7, 1957.  - DECIDED JUNE 17, 1957.  - 98 U.S.
APP. D.C. 190, 233 F.2D 681, REVERSED AND REMANDED. 


PETITIONER WAS CONVICTED OF A VIOLATION OF 2 U.S.C. SEC. 192, WHICH
MAKES IT A MISDEMEANOR FOR ANY PERSON SUMMONED AS A WITNESS BY EITHER
HOUSE OF CONGRESS OR ANY COMMITTEE THEREOF TO REFUSE TO ANSWER ANY
QUESTION "PERTINENT TO THE QUESTION UNDER INQUIRY."  SUMMONED TO
TESTIFY BEFORE A SUBCOMMITTEE OF THE HOUSE OF REPRESENTATIVES COMMITTEE
ON UN-AMERICAN ACTIVITIES, PETITIONER TESTIFIED FREELY ABOUT HIS OWN
ACTIVITIES AND ASSOCIATIONS; BUT HE REFUSED TO ANSWER QUESTIONS AS TO
WHETHER HE HAD KNOWN CERTAIN OTHER PERSONS TO HAVE BEEN MEMBERS OF THE
COMMUNIST PARTY.  HE BASED HIS REFUSAL ON THE GROUND THAT THOSE
QUESTIONS WERE OUTSIDE OF THE PROPER SCOPE OF THE COMMITTEE'S
ACTIVITIES AND NOT RELEVANT TO ITS WORK.  NO CLEAR UNDERSTANDING OF THE
"QUESTION UNDER INQUIRY" COULD BE GLEANED FROM THE RESOLUTION
AUTHORIZING THE FULL COMMITTEE, THE LEGISLATIVE HISTORY THEREOF, THE
COMMITTEE'S PRACTICES THEREUNDER, THE ACTION AUTHORIZING THE
SUBCOMMITTEE, THE STATEMENT OF THE CHAIRMAN AT THE OPENING OF THE
HEARINGS OR HIS STATEMENT IN RESPONSE TO PETITIONER'S PROTEST.  HELD:
PETITIONER WAS NOT ACCORDED A FAIR OPPORTUNITY TO DETERMINE WHETHER HE
WAS WITHIN HIS RIGHTS IN REFUSING TO ANSWER, AND HIS CONVICTION WAS
INVALID UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  PP. 181
216. 

(A)  THE POWER OF CONGRESS TO CONDUCT INVESTIGATIONS, INHERENT IN THE
LEGISLATIVE PROCESS, IS BROAD; BUT IT IS NOT UNLIMITED.  P. 187. 

(B)  CONGRESS HAS NO GENERAL AUTHORITY TO EXPOSE THE PRIVATE AFFAIRS
OF INDIVIDUALS WITHOUT JUSTIFICATION IN TERMS OF THE FUNCTIONS OF
CONGRESS.  P. 187. 

(C)  NO INQUIRY IS AN END IN ITSELF; IT MUST BE RELATED TO, AND IN
FURTHERANCE OF, A LEGITIMATE TASK OF CONGRESS.  P. 187. 

(D)  THE BILL OF RIGHTS IS APPLICABLE TO CONGRESSIONAL
INVESTIGATIONS, AS IT IS TO ALL FORMS OF GOVERNMENTAL ACTION.  P. 188. 

(E)  A CONGRESSIONAL INVESTIGATION IS SUBJECT TO THE COMMAND THAT
CONGRESS SHALL MAKE NO LAW ABRIDGING FREEDOM OF SPEECH OR PRESS OR
ASSEMPLY.  PP. 196-197. 

(F)  WHEN FIRST AMENDMENT RIGHTS ARE THREATENED, THE DELEGATION OF
POWER TO A CONGRESSIONAL COMMITTEE MUST BE CLEARLY REVEALED IN ITS
CHARTER.  UNITED STATES V. RUMELY, 345 U.S. 41.  P. 198. 

(G)  A CONGRESSIONAL INVESTIGATION INTO INDIVIDUAL AFFAIRS IS INVALID
IF UNRELATED TO ANY LEGISLATIVE PURPOSE, BECAUSE IT IS BEYOND THE
POWERS CONFERRED UPON CONGRESS BY THE CONSTITUTION.  KILBOURN V.
THOMPSON, 103 U.S. 168.  P. 198. 

(H)  IT CANNOT SIMPLY BE ASSUMED THAT EVERY CONGRESSIONAL
INVESTIGATION IS JUSTIFIED BY A PUBLIC NEED THAT OVERBALANCES ANY
PRIVATE RIGHTS AFFECTED, SINCE TO DO SO WOULD BE TO ABDICATE THE
RESPONSIBILITY PLACED BY THE CONSTITUTION UPON THE JUDICIARY TO INSURE
THAT CONGRESS DOES NOT UNJUSTIFIABLY ENCROACH UPON AN INDIVIDUAL'S
RIGHT OF PRIVACY NOR ABRIDGE HIS LIBERTY OF SPEECH, PRESS, RELIGION OR
ASSEMBLY.  PP. 198-199. 

(I)  THERE IS NO CONGRESSIONAL POWER TO EXPOSE FOR THE SAKE OF
EXPOSURE WHERE THE PREDOMINANT RESULT CAN BE ONLY AN INVASION OF THE
PRIVATE RIGHTS OF INDIVIDUALS.  P. 200. 

(J)  IN AUTHORIZING AN INVESTIGATION BY A COMMITTEE, IT IS ESSENTIAL
THAT THE SENATE OR HOUSE SHOULD SPELL OUT THE COMMITTEE'S JURISDICTION
AND PURPOSE WITH SUFFICIENT PARTICULARITY TO INSURE THAT COMPULSORY
PROCESS IS USED ONLY IN FURTHERANCE OF A LEGISLATIVE PURPOSE.  P. 201. 

(K)  THE RESOLUTION AUTHORIZING THE UN-AMERICAN ACTIVITIES COMMITTEE
DOES NOT SATISFY THIS REQUIREMENT, ESPECAILLY WHEN READ IN THE LIGHT OF
THE PRACTICES OF THE COMMITTEE AND SUBSEQUENT ACTIONS OF THE HOUSE OF
REPRESENTATIVES EXTENDING THE LIFE OF THE COMMITTEE.  PP. 201-205. 

(L)  EVERY REASONABLE INDULGENCE OF LEGALITY MUST BE ACCORDED TO THE
ACTIONS OF A COORDINATE BRANCH OF OUR GOVERNMENT; BUT SUCH DEFERENCE
CANNOT YIELD TO AN UNNECESSARY AND UNREASONABLE DISSIPATION OF PRECIOUS
CONSTITUTIONAL FREEDOMS.  P. 204. 

(M)  PROTECTED FREEDOMS SHOULD NOT BE PLACED IN DANGER IN THE ABSENCE
OF A CLEAR DETERMINATION BY THE HOUSE OR SENATE THAT A PARTICULAR
INQUIRY IS JUSTIFIED BY SPECIFIC LEGISLATIVE NEED.  P. 205. 

(N)  CONGRESSIONAL INVESTIGATING COMMITTEES ARE RESTRICTED TO THE
MISSIONS DELEGATED TO THEM - TO ACQUIRE CERTAIN DATA TO BE USED BY THE
HOUSE OR SENATE IN COPING WITH A PROBLEM THAT FALLS WITHIN ITS
LEGISLATIVE SPHERE - AND NO WITNESS CAN BE COMPELLED TO MAKE
DISCLOSURES ON MATTERS OUTSIDE THAT AREA.  P. 206. 

(O)  WHEN THE DEFINITION OF JURISIDICTIONAL PERTINENCY IS AS
UNCERTAIN AND WAVERING AS IN THE CASE OF THE UN-AMERICAN ACTIVITIES
COMMITTEE, IT BECOMES EXTREMELY DIFFICULT FOR THE COMMITTEE TO LIMIT
ITS INQUIRIES TO STATUTORY PERTINENCY.  P. 206. 

(P)  THE COURTS MUST ACCORD TO A DEFENDANT INDICTED UNDER 2 U.S.C.
SEC. 192 EVERY RIGHT WHICH IS GUARANTEED TO DEFENDANTS IN ALL OTHER
CRIMINAL CASES, INCLUDING THE RIGHT TO HAVE AVAILABLE INFORMATION
REVEALING THE STANDARD OF CRIMINALITY BEFORE THE COMMISSION OF THE
ALLEGED OFFENSE.  PP. 207-208. 

(Q)  SINCE THE STATUTE DEFINES THE CRIME AS REFUSAL TO ANSWER "ANY
QUESTION PERTINENT TO THE QUESTION UNDER INQUIRY," PART OF THE STANDARD
OF CRIMINALITY IS THE PERTINENCY OF THE QUESTION PROPOUNDED TO THE
WITNESS.  P. 208. 

(R)  DUE PROCESS REQUIRES THAT A WITNESS BEFORE A CONGRESSIONAL
INVESTIGATING COMMITTEE SHOULD NOT BE COMPELLED TO DECIDE, AT PERIL OF
CRIMINAL PROSECUTION, WHETHER TO ANSWER QUESTIONS PROPOUNDED TO HIM
WITHOUT FIRST KNOWING THE "QUESTION UNDER INQUIRY" WITH THE SAME DEGREE
OF EXPLICITNESS AND CLARITY THAT THE DUE PROCESS CLAUSE REQUIRES IN THE
EXPRESSION OF ANY ELEMENT OF A CRIMINAL OFFENSE.   SINCLAIR V. UNITED
STATES, 279 U.S. 263.  PP. 208-209. 

(S)  THE AUTHORIZING RESOLUTION, THE REMARKS OF THE CHAIRMAN OR
MEMBERS OF THE COMMITTEE, OR EVEN THE NATURE OF THE PROCEEDINGS
THEMSELVES, MIGHT MAKE THE "QUESTION UNDER INQUIRY" SUFFICIENTLY CLEAR
TO AVOID THE "VICE OF VAGUENESS"; BUT THESE SOURCES OFTEN LEAVE THE
MATTER IN GRAVE DOUBT.  P. 209. 

(T)  IN THIS CASE, IT IS NOT NECESSARY TO PASS ON THE QUESTION
WHETHER THE AUTHORIZING RESOLUTION DEFINES THE "QUESTION UNDER INQUIRY"
WITH SUFFICIENT CLARITY, SINCE THE GOVERNMENT DOES NOT CONTEND THAT IT
COULD SERVE THAT PURPOSE.  P. 209. 

(U)  THE OPENING STATEMENT OF THE CHAIRMAN AT THE OUTSET OF THE
HEARINGS HERE INVOLVED IS INSUFFICIENT TO SERVE THAT PURPOSE, SINCE IT
MERELY PARAPHRASED THE AUTHORIZING RESOLUTION AND GAVE A VERY GENERAL
SKETCH OF THE PAST EFFORTS OF THE COMMITTEE.  PP. 209-210. 

(V)  NOR WAS THAT PURPOSE SERVED BY THE ACTION OF THE FULL COMMITTEE
IN AUTHORIZING THE CREATION OF THE SUBCOMMITTEE BEFORE WHICH PETITIONER
APPEARED, SINCE IT MERELY AUTHORIZED THE CHAIRMAN TO APPOINT
SUBCOMMITTEES "FOR THE PURPOSE OF PERFORMING ANY AND ALL ACTS WHICH THE
COMMITTEE AS A WHOLE IS AUTHORIZED TO DO."  PP. 211-212. 

(W)  ON THE RECORD IN THIS CASE, ESPECIALLY IN VIEW OF THE PRECISE
QUESTIONS PETITIONER WAS CHARGED WITH REFUSING TO ANSWER, IT CANNOT BE
SAID THAT THE "QUESTION UNDER INQUIRY" WAS COMMUNIST INFILTRATION INTO
LABOR UNIONS.  PP. 212-214. 

(X)  UNLESS THE SUBJECT MATTER OF THE INQUIRY HAS BEEN MADE TO APPEAR
WITH UNDISPUTABLE CLARITY, IT IS THE DUTY OF THE INVESTIGATIVE BODY,
UPON OBJECTION OF THE WITNESS ON GROUNDS OF PERTINENCY, TO STATE FOR
THE RECORD THE SUBJECT UNDER INQUIRY AT THAT TIME AND THE MANNER IN
WHICH THE PROPOUNDED QUESTIONS ARE PERTINENT THERETO.  PP. 214-215. 

(Y)  THE CHAIRMAN'S RESPONSE, WHEN PETITIONER OBJECTED TO THE
QUESTIONS ON GROUNDS OF PERTINENCY, WAS INADEQUATE TO CONVEY SUFFICIENT
INFORMATION AS TO THE PERTINENCY OF THE QUESTIONS TO THE "QUESTION
UNDER INQUIRY."  PP. 214-215. 

WATKINS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS A REVIEW BY CERTIORARI OF A CONVICTION UNDER 2 U.S.C. SEC.
192 FOR "CONTEMPT OF CONGRESS."   THE MISDEMEANOR IS ALLEGED TO HAVE
BEEN COMMITTED DURING A HEARING BEFORE A CONGRESSIONAL INVESTIGATING
COMMITTEE.  IT IS NOT THE CASE OF A TRUCULENT OR CONTUMACIOUS WITNESS
WHO REFUSES TO ANSWER ALL QUESTIONS OR WHO, BY BOISTEROUS OR
DISCOURTEOUS CONDUCT, DISTURBS THE DECORUM OF THE COMMITTEE ROOM. 
PETITIONER WAS PROSECUTED FOR REFUSING TO MAKE CERTAIN DISCLOSURES
WHICH HE ASSERTED TO BE BEYOND THE AUTHORITY OF THE COMMITTEE TO
DEMAND.  THE CONTROVERSY THUS RESTS UPON FUNDAMENTAL PRINCIPLES OF THE
POWER OF THE CONGRESS AND THE LIMITATIONS UPON THAT POWER.  WE APPROACH
THE QUESTIONS PRESENTED WITH CONSCIOUS AWARENESS OF THE FAR-REACHING
RAMIFICATIONS THAT CAN FOLLOW FROM A DECISION OF THIS NATURE. 

ON APRIL 29, 1954, PETITIONER APPEARED AS A WITNESS IN COMPLIANCE
WITH A SUBPOENA ISSUED BY A SUBCOMMITTEE OF THE COMMITTEE ON UN
AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES.  THE SUBCOMMITTEE
ELICITED FROM PETITIONER A DESCRIPTION OF HIS BACKGROUND IN LABOR UNION
ACTIVITIES.  HE HAD BEEN AN EMPLOYEE OF THE INTERNATIONAL HARVESTER
COMPANY BETWEEN 1935 AND 1953.  DURING THE LAST ELEVEN OF THOSE YEARS,
HE HAD BEEN ON LEAVE OF ABSENCE TO SERVE AS AN OFFICIAL OF THE FARM
EQUIPMENT WORKERS INTERNATIONAL UNION, LATER MERGED INTO THE UNITED
ELECTRICAL, RADIO AND MACHINE WORKERS.  HE ROSE TO THE POSITION OF
PRESIDENT OF DISTRICT NO. 2 OF THE FARM EQUIPMENT WORKERS, A DISTRICT
DEFINED GEOGRAPHICALLY TO INCLUDE GENERALLY CANTON AND ROCK FALLS,
ILLINOIS, AND DUBUQUE IOWA.  IN 1953, PETITIONER JOINED THE UNITED
AUTOMOBILE WORKERS INTERNATIONAL UNION AS A LABOR ORGANIZER, 

PETITIONER'S NAME HAD BEEN MENTIONED BY TWO WITNESSES WHO TESTIFIED
BEFORE THE COMMITTEE AT PRIOR HEARINGS.  IN SEPTEMBER 1952, ONE DONALD
O. SPENCER ADMITTED HAVING BEEN A COMMUNIST FROM 1943 TO 1946.  HE
DECLARED THAT HE HAD BEEN RECRUITED INTO THE PARTY WITH THE ENDORSEMENT
AND PRIOR APPROVAL OF PETITIONER, WHOM HE IDENTIFIED AS THE THEN
DISTRICT VICE-PRESIDENT OF THE FARM EQUIPMENT WORKERS.   (FN1)  SPENCER
ALSO MENTIONED THAT PETITIONER HAD ATTENDED MEETINGS AT WHICH ONLY CARD
CARRYING COMMUNISTS WERE ADMITTED.  A MONTH BEFORE PETITIONER
TESTIFIED, ONE WALTER RUMSEY STATED THAT HE HAD BEEN RECRUITED INTO THE
PARTY BY PETITIONER.  (FN2)  RUMSEY ADDED THAT HE HAD PAID PARTY DUES
TO, AND LATER COLLECTED DUES FROM, PETITIONER, WHO HAD ASSUMED THE
NAME, SAM BROWN.  RUMSEY TOLD THE COMMITTEE THAT HE LEFT THE PARTY IN
1944. 

PETITIONER ANSWERED THESE ALLEGATIONS FREELY AND WITHOUT
RESERVATION.  HIS ATTITUDE TOWARD THE INQUIRY IS CLEARLY REVEALED FROM
THE STATEMENT HE MADE WHEN THE QUESTIONING TURNED TO THE SUBJECT OF HIS
PAST CONDUCT, ASSOCIATIONS AND PREDILECTIONS: 

"I AM NOT NOW NOR HAVE I EVER BEEN A CARD-CARRYING MEMBER OF THE
COMMUNIST PARTY.  RUMSEY WAS WRONG WHEN HE SAID I HAD RECRUITED HIM
INTO THE PARTY, THAT I HAD RECEIVED HIS DUES, THAT I PAID DUES TO HIM,
AND THAT I HAD USED THE ALIAS SAM BROWN. 

"SPENCER WAS WRONG WHEN HE TERMED ANY MEETINGS WHICH I ATTENDED AS
CLOSED COMMUNIST PARTY MEETINGS. 

"I WOULD LIKE TO MAKE IT CLEAR THAT FOR A PERIOD OF TIME FROM
APPROXIMATELY 1942 TO 1947 I COOPERATED WITH THE COMMUNIST PARTY AND
PARTICIPATED IN COMMUNIST ACTIVITIES TO SUCH A DEGREE THAT SOME PERSONS
MAY HONESTLY BELIEVE THAT I WAS A MEMBER OF THE PARTY. 

"I HAVE MADE CONTRIBUTIONS UPON OCCASIONS TO COMMUNIST CAUSES.  I
HAVE SIGNED PETITIONS FOR COMMUNIST CAUSES.  I ATTENDED CAUCUSES AT AN
FE CONVENTION AT WHICH COMMUNIST PARTY OFFICIALS WERE PRESENT. 

"SINCE I FREELY COOPERATED WITH THE COMMUNIST PARTY I HAVE NO MOTIVE
FOR MAKING THE DISTINCTION BETWEEN COOPERATION AND MEMBERSHIP EXCEPT
THE SIMPLE FACT THAT IT IS THE TRUTH.  I NEVER CARRIED A COMMUNIST
PARTY CARD.  I NEVER ACCEPTED DISCIPLINE AND INDEED ON SEVERAL
OCCASIONS I OPPOSED THEIR POSITION. 

"IN A SPECIAL CONVENTION HELD IN THE SUMMER OF 1947 I LED THE FIGHT
FOR COMPLIANCE WITH THE TAFT-HARTLEY ACT BY THE FE-CIO INTERNATIONAL
UNION.  THIS FIGHT BECAME SO BITTER THAT IT ENDED ANY POSSIBILITY OF
FUTURE COOPERATION."  (FN3) 

THE CHARACTER OF PETITIONER'S TESTIMONY ON THESE MATTERS CAN PERHAPS
BEST BE SUMMARIZED BY THE GOVERNMENT'S OWN APPRAISAL IN ITS BRIEF: 

"A MORE COMPLETE AND CANDID STATEMENT OF HIS PAST POLITICAL
ASSOCIATIONS AND ACTIVITIES (TREATING THE COMMUNIST PARTY FOR PRESENT
PURPOSES AS A MERE POLITICAL PARTY) CAN HARDLY BE IMAGINED.  PETITIONER
CERTAINLY WAS NOT ATTEMPTING TO CONCEAL OR WITHHOLD FROM THE COMMITTEE
HIS OWN PAST POLITICAL ASSOCIATIONS, PREDILECTIONS, AND PREFERENCES. 
FURTHERMORE, PETITIONER TOLD THE COMMITTEE THAT HE WAS ENTIRELY WILLING
TO IDENTIFY FOR THE COMMITTEE, AND ANSWER ANY QUESTIONS IT MIGHT HAVE
CONCERNING, 'THOSE PERSONS WHOM I KNEW TO BE MEMBERS OF THE COMMUNIST
PARTY,' PROVIDED THAT, 'TO HIS BEST KNOWLEDGE AND BELIEF,' THEY STILL
WERE MEMBERS OF THE PARTY  ...  ."  (FN4) 

THE SUBCOMMITTEE, TOO, WAS APPARENTLY SATISFIED WITH PETITIONER'S
DISCLOSURES.  AFTER SOME FURTHER DISCUSSION ELABORATING ON THE
STATEMENT, COUNSEL FOR THE COMMITTEE TURNED TO ANOTHER ASPECT OF
RUMSEY'S TESTIMONY.  RUMSEY HAD IDENTIFIED A GROUP OF PERSONS WHOM HE
HAD KNOWN AS MEMBERS OF THE COMMUNIST PARTY, AND COUNSEL BEGAN TO READ
THIS LIST OF NAMES TO PETITIONER.  PETITIONER STATED THAT HE DID NOT
KNOW SEVERAL OF THE PERSONS.  OF THOSE WHOM HE DID KNOW, HE REFUSED TO
TELL WHETHER HE KNEW THEM TO HAVE BEEN MEMBERS OF THE COMMUNIST PARTY. 
HE EXPLAINED TO THE SUBCOMMITTEE WHY HE TOOK SUCH A POSITION: 

"I AM NOT GOING TO PLEAD THE FIFTH AMENDMENT, BUT I REFUSE TO ANSWER
CERTAIN QUESTIONS THAT I BELIEVE ARE OUTSIDE THE PROPER SCOPE OF YOUR
COMMITTEE'S ACTIVITIES.  I WILL ANSWER ANY QUESTIONS WHICH THIS
COMMITTEE PUTS TO ME ABOUT MYSELF.  I WILL ALSO ANSWER QUESTIONS ABOUT
THOSE PERSONS WHOM I KNEW TO BE MEMBERS OF THE COMMUNIST PARTY AND WHOM
I BELIEVE STILL ARE.  I WILL NOT, HOWEVER, ANSWER ANY QUESTIONS WITH
RESPECT TO OTHERS WITH WHOM I ASSOCIATED IN THE PAST.  I DO NOT BELIEVE
THAT ANY LAW IN THIS COUNTRY REQUIRES ME TO TESTIFY ABOUT PERSONS WHO
MAY IN THE PAST HAVE BEEN COMMUNIST PARTY MEMBERS OR OTHERWISE ENGAGED
IN COMMUNIST PARTY ACTIVITY BUT WHO TO MY BEST KNOWLEDGE AND BELIEF
HAVE LONG SINCE REMOVED THEMSELVES FROM THE COMMUNIST MOVEMENT. 

"I DO NOT BELIEVE THAT SUCH QUESTIONS ARE RELEVANT TO THE WORK OF
THIS COMMITTEE NOR DO I BELIEVE THAT THIS COMMITTEE HAS THE RIGHT TO
UNDERTAKE THE PUBLIC EXPOSURE OF PERSONS BECAUSE OF THEIR PAST
ACTIVITIES.  I MAY BE WRONG, AND THE COMMITTEE MAY HAVE THIS POWER, BUT
UNTIL AND UNLESS A COURT OF LAW SO HOLDS AND DIRECTS ME TO ANSWER, I
MOST FIRMLY REFUSE TO DISCUSS THE POLITICAL ACTIVITIES OF MY PAST
ASSOCIATES."  (FN5) 

THE CHAIRMAN OF THE COMMITTEE SUBMITTED A REPORT OF PETITIONER'S
REFUSAL TO ANSWER QUESTIONS TO THE HOUSE OF REPRESENTATIVES.  H.R. REP.
NO. 1579, 83D CONG., 2D SESS.  THE HOUSE DIRECTED THE SPEAKER TO
CERTIFY THE COMMITTEE'S REPORT TO THE UNITED STATES ATTORNEY FOR
INITIATION OF CRIMINAL PROSECUTION.  H. RES. 534, 83D CONG., 2D SESS.
(FN6)  A SEVEN-COUNT INDICTMENT WAS RETURNED.  (FN7)  PETITIONER WAIVED
HIS RIGHT TO JURY TRIAL AND WAS FOUND GUILTY ON ALL COUNTS BY THE
COURT.  THE SENTENCE, A FINE OF $100 AND ONE YEAR IN PRISON, WAS
SUSPENDED, AND PETITIONER WAS PLACED ON PROBATION. 

AN APPEAL WAS TAKEN TO THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA.  THE CONVICTION WAS REVERSED BY A THREE-JUDGE PANEL, ONE
MEMBER DISSENTING.  UPON REHEARING EN BANC, THE FULL BENCH AFFIRMED THE
CONVICTION WITH THE JUDGES OF THE ORIGINAL MAJORITY IN DISSENT.  98
U.S. APP. D.C. 190, 233 F.2D 681.  WE GRANTED CERTIORARI BECAUSE OF THE
VERY IMPORTANT QUESTIONS OF CONSTITUTIONAL LAW PRESENTED.  352 U.S.
822. 

WE START WITH SEVERAL BASIC PREMISES ON WHICH THERE IS GENERAL
AGREEMENT.  THE POWER OF THE CONGRESS TO CONDUCT INVESTIGATIONS IS
INHERENT IN THE LEGISLATIVE PROCESS.  THAT POWER IS BROAD.  IT
ENCOMPASSES INQUIRIES CONCERNING THE ADMINISTRATION OF EXISTING LAWS AS
WELL AS PROPOSED OR POSSIBLY NEEDED STATUTES.  IT INCLUDES SURVEYS OF
DEFECTS IN OUR SOCIAL, ECONOMIC OR POLITICAL SYSTEM FOR THE PURPOSE OF
ENABLING THE CONGRESS TO REMEDY THEM.  IT COMPREHENDS PROBES INTO
DEPARTMENTS OF THE FEDERAL GOVERNMENT TO EXPOSE CORRUPTION,
INEFFICIENCY OR WASTE.  BUT, BROAD AS IN THIS POWER OF INQUIRY, IT IS
NOT UNLIMITED.  THERE IS NO GENERAL AUTHORITY TO EXPOSE THE PRIVATE
AFFAIRS OF INDIVIDUALS WITHOUT JUSTIFICATION IN TERMS OF THE FUNCTIONS
OF THE CONGRESS.  THIS WAS FREELY CONCEDED BY THE SOLICITOR GENERAL IN
HIS ARGUMENT OF THIS CASE.  (FN8)  NOR IS THE CONGRESS A LAW
ENFORCEMENT OR TRIAL AGENCY.  THESE ARE FUNCTIONS OF THE EXECUTIVE AND
JUDICIAL DEPARTMENTS OF GOVERNMENT.  NO INQUIRY IS AN END IN ITSELF; IT
MUST BE RELATED TO, AND IN FURTHERANCE OF, A LEGITIMATE TASK OF THE
CONGRESS.  INVESTIGATIONS CONDUCTED SOLELY FOR THE PERSONAL
AGGRANDIZEMENT OF THE INVESTIGATORS OR TO "PUNISH" THOSE INVESTIGATED
ARE INDEFENSIBLE. 

IT IS UNQUESTIONABLY THE DUTY OF ALL CITIZENS TO COOPERATE WITH THE
CONGRESS IN ITS EFFORTS TO OBTAIN THE FACTS NEEDED FOR INTELLIGENT
LEGISLATIVE ACTION.  IT IS THEIR UNREMITTING OBLIGATION TO RESPOND TO
SUBPOENAS, TO RESPECT THE DIGNITY OF THE CONGRESS AND ITS COMMITTESS
AND TO TESTIFY FULLY WITH RESPECT TO MATTERS WITHIN THE PROVINCE OF
PROPER INVESTIGATION.  THIS, OF COURSE, ASSUMES THAT THE CONSTITUTIONAL
RIGHTS OF WITNESSES WILL BE RESPECTED BY THE CONGRESS AS THEY ARE IN A
COURT OF JUSTICE.  THE BILL OF RIGHTS IS APPLICABLE TO INVESTIGATIONS
AS TO ALL FORMS OF GOVERNMENTAL ACTION.   WITNESSES CANNOT BE COMPELLED
TO GIVE EVIDENCE AGAINST THEMSELVES.  THEY CANNOT BE SUBJECTED TO
UNREASONABLE SEARCH AND SEIZURE.  NOR CAN THE FIRST AMENDMENT FREEDOMS
OF SPEECH, PRESS, RELIGION, OR POLITICAL BELIEF AND ASSOCIATION BE
ABRIDGED. 

THE RUDIMENTS OF THE POWER TO PUNISH FOR "CONTEMPT OF CONGRESS" COME
TO US FROM THE PAGES OF ENGLISH HISTORY.  THE ORIGIN OF PRIVILEGES AND
CONTEMPTS EXTENDS BACK INTO THE PERIOD OF THE EMERGENCE OF PARLIAMENT. 
THE ESTABLISHMENT OF A LEGISLATIVE BODY WHICH COULD CHALLENGE THE
ABSOLUTE POWER OF THE MONARCH IS A LONG AND BITTER STORY.  IN THAT
STRUGGLE, PARLIAMENT MADE BROAD AND VARRIED USE OF THE CONTEMPT POWER. 
ALMOST FROM THE BEGINNING, BOTH THE HOUSE OF COMMONS AND THE HOUSE OF
LORDS CLAIMED ABSOLUTE AND PLENARY AUTHORITY OVER THEIR PRIVILEGES. 
THIS WAS AN INDEPENDENT BODY OF LAW, DESCRIBED BY COKE AS LEX
PARLIAMENTI.  (FN9)  ONLY PARLIAMENT COULD DECLARE WHAT THOSE
PRIVILEGES WERE OR WHAT NEW PRIVILEGES WERE OCCASIONED, AND ONLY
PARLIAMENT COULD JUDGE WHAT CONDUCT CONSTITUTED A BREACH OF PRIVILEGE. 

IN PARTICULAR, THIS EXCLUSION OF LEX PARLIAMENTI FROM THE LEX TERRAE,
OR LAW OF THE LAND, PRECLUDED JUDICIAL REVIEW OF THE EXERCISE OF THE
CONTEMPT POWER OR THE ASSERTION OF PRIVILEGE.  PARLIAMENT DECLARED THAT
NO COURT HAD JURISDICTION TO CONSIDER SUCH QUESTIONS.  IN THE LATTER
PART OF THE SEVENTEENTH CENTURY, AN ACTION FOR FALSE IMPRISONMENT WAS
BROUGHT BY ONE JAY WHO HAD BEEN HELD IN CONTEMPT.  THE DEFENDANT, THE
SERJEANT-AT-ARMS OF THE HOUSE OF COMMONS, DEMURRED THAT HE HAD TAKEN
THE PLAINTIFF INTO CUSTODY FOR BREACH OF PRIVILEGE.  THE CHIEF JUSTICE,
PEMBERTON, OVERRULED THE DEMURRER.  SUMMONED TO THE BAR OF THE HOUSE,
THE CHIEF JUSTICE EXPLAINED THAT HE BELIEVED THAT THE ASSERTION OF
PRIVILEGE WENT TO THE MERITS OF THE ACTION AND DID NOT PRECLUDE
JURISDICTION.  FOR HIS AUDACITY, THE CHIEF JUSTICE WAS DISPATCHED TO
NEWGATE PRISON.  (FN10) 

IT SEEMS INEVITABLE THAT THE POWER CLAIMED BY PARLIAMENT WOULD HAVE
BEEN ABUSED.  UNQUESTIONABLY IT WAS.  A FEW EXAMPLES ILLUSTRATE THE WAY
IN WHICH INDIVIDUAL RIGHTS WERE INFRINGED.  DURING THE SEVENTEENTH
CENTURY, THERE WAS A VIOLENT UPHEAVAL, BOTH RELIGIOUS AND POLITICAL. 
THIS WAS THE TIME OF THE REFORMATION AND THE ESTABLISHMENT OF THE
CHURCH OF ENGLAND.  IT WAS ALSO THE PERIOD WHEN THE STUARTS PROCLAIMED
THAT THE ROYAL PREROGATIVE WAS ABSOLUTE.  ULTIMATELY THERE WERE TWO
REVOLUTIONS, ONE PROTRACTED AND BLOODY, THE SECOND WITHOUT BLOODSHED. 
CRITICAL COMMENTARY OF ALL KINDS WAS TREATED AS CONTEMPT OF PARLIAMENT
IN THESE TROUBLED DAYS.  EVEN CLERGYMEN WERE IMPRISONED FOR REMARKS
MADE IN THEIR SERMONS.  (FN11)  PERHAPS THE OUTSTANDING CASE AROSE FROM
THE PRIVATE CONVERSATION OF ONE FLOYD, A CATHOLIC, IN WHICH HE
EXPRESSED PLEASURE OVER THE MISFORTURE OF THE KING'S PROTESTANT SON-IN
LAW AND HIS WIFE.  FLOYD WAS NOT A MEMBER OF PARLIAMENT.  NONE OF THE
PERSONS CONCERNED WAS IN ANY WAY CONNECTED WITH THE HOUSE OF COMMONS. 
NEVERTHELESS, THAT BODY IMPOSED AN HUMILIATING AND CRUEL SENTENCE UPON
FLOYD FOR CONTEMPT.  (FN12)  THE HOUSE OF LORDS INTERVENED, REBUKING
THE COMMONS FOR THEIR EXTENSION OF THE PRIVILEGE.  THE COMMONS ACCEDED
AND TRANSFERRED THE RECORD OF THE CASE TO THE LORDS, WHO IMPOSED
SUBSTANTIALLY THE SAME PENALTY.  (FN13)

LATER IN THAT CENTURY, DURING THE REIGN OF CHARLES II, THERE WAS
GREAT UNREST OVER THE FACT THAT THE HEIR APPARENT, JAMES, HAD EMBRACED
CATHOLICISM.  ANTI-CATHOLIC FEELING RAN HIGH, SPILLING OVER A FEW YEARS
LATER WHEN THE INFAMOUS ROGUE, TITUS OATES, INFLAMED THE COUNTRY WITH
RUMORS OF A "POPISH PLOT" TO MURDER THE KING.  A COMMITTEE OF
PARLIAMENT WAS APPOINTED TO LEARN THE SOURCES OF CERTAIN PAMPHLETS THAT
HAD BEEN APPEARING.  ONE WAS ENTITLED:  THE GRAND QUESTION CONCERNING
THE PROROGATION OF THIS PARLIAMENT FOR A YEAR AND THREE MONTHS STATED
AND DISCUSSED.  A DOCTOR CAREY ADMITTED TO THE COMMITTEE THAT HE KNEW
THE AUTHOR, BUT REFUSED TO DIVULGE HIS NAME.  BROUGHT TO THE BAR OF THE
HOUSE OF LORDS, HE PERSISTED IN THIS STAND.  THE HOUSE IMPOSED A FINE
OF 1,000 POUNDS AND COMMITTED THE WITNESS TO THE TOWER.  (FN14)    A
HUNDRED YEARS LATER, GEORGE III HAD MANAGED TO GAIN CONTROL OF
PARLIAMENT THROUGH HIS MINISTERS.   THE KING COULD NOT SILENCE THE
OPPOSITION, HOWEVER, AND ONE OF THE MOST VOCAL WAS JOHN WILKES.  THIS
PRECIPITATED A STRUGGLE THAT LASTED FOR SEVERAL YEARS UNTIL WILKES
FINALLY PREVAILED.  ONE WRITER SUMS UP THE CASE THUS: 

"HE HAD WON A VICTORY FOR FREEDOM OF THE PRESS.  HE HAD DIRECTED
POPULAR ATTENTION TO THE ROYALLY-CONTROLLED HOUSE OF COMMONS, AND
POINTED OUT ITS UNREPRESENTATIVE CHARACTER, AND HAD SHOWN HOW EASILY A
CLAIM OF PRIVILEGE MIGHT BE USED TO SANCTION THE ARBITRARY PROCEEDINGS
OF MINISTERS AND PARLIAMENT, EVEN WHEN A FUNDAMENTAL RIGHT OF THE
SUBJECT WAS CONCERNED.  IT WAS ONE OF LIFE'S LITTLE IRONIES THAT WORK
OF SUCH MAGNITUDE HAD BEEN RESERVED FOR ONE OF THE WORST LIBERTINES AND
DEMAGOGUES OF ALL TIME."  (FN15) 

EVEN AS LATE AS 1835, THE HOUSE OF COMMONS APPOINTED A SELECT
COMMITTEE TO INQUIRE INTO "  ... THE ORIGIN, NATURE, EXTENT AND
TENDENCY OF THE ORANGE INSTITUTIONS."  THIS WAS A POLITICAL-RELIGIOUS
ORGANIZATION, VEHEMENTLY PROTESTANT IN RELIGION AND STRONGLY IN FAVOR
OF THE GROWTH OF THE BRITISH EMPIRE.  THE COMMITTEE SUMMONED THE DEPUTY
GRAND SECRETARY AND DEMANDED THAT HE PRODUCE ALL THE RECORDS OF THE
ORGANIZATION.  THE WITNESS REFUSED TO TURN OVER A LETTER-BOOK, WHICH HE
ADMITTED CONTAINED HIS ANSWERS TO MANY COMMUNICATIONS UPON ORANGE
BUSINESS.  BUT IT ALSO CONTAINED, HE SAID, RECORDS OF PRIVATE
COMMUNICATIONS WITH RESPECT TO ORANGEISM.  SUMMONED TO THE BAR OF THE
HOUSE OF COMMONS, HE REMAINED ADAMANT AND WAS COMMITTED TO NEWGATE
PRISON.  (FN16) 

MODERN TIMES HAVE SEEN A REMARKABLE RESTRAINT IN THE USE BY
PARLIAMENT OF ITS CONTEMPT POWER.  IMPORTANT INVESTIGATIONS, LIKE THOSE
CONDUCTED IN AMERICA BY CONGRESSIONAL COMMITTEES, ARE MADE BY ROYAL
COMMISSIONS OF INQUIRY.  (FN17)  THESE COMMISSIONS ARE COMPRISED OF
EXPERTS IN THE PROBLEM TO BE STUDIED.  THEY ARE REMOVED FROM THE
TURBULENT FORCES OF POLITICS AND PARTISAN CONSIDERATIONS.  SELDOM, IF
EVER, HAVE THESE COMMISSIONS BEEN GIVEN THE AUTHORITY TO COMPEL THE
TESTIMONY OF WITNESSES OR THE PRODUCTION OF DOCUMENTS.  (FN18)  THEIR
SUCCESS IN FULFILLING THEIR FACT-FINDING MISSIONS WITHOUT RESORT TO
COERCIVE TACTICS IS A TRIBUTE TO THE FAIRNESS OF THE PROCESSES TO THE
WITNESSES AND THEIR CLOSE ADHERENCE TO THE SUBJECT MATTER COMMITTED TO
THEM. 

THE HISTORY OF CONTEMPT OF THE LEGISLATURE IN THIS COUNTRY IS NOTABLY
DIFFERENT FROM THAT OF ENGLAND.  IN THE EARLY DAYS OF THE UNITED
STATES, THERE LINGERED THE DIRECT KNOWLEDGE OF THE EVIL EFFECTS OF
ABSOLUTE POWER.  MOST OF THE INSTANCES OF USE OF COMPULSORY PROCESS BY
THE FIRST CONGRESSES CONCERNED MATTERS AFFECTING THE QUALIFICATION OR
INTEGRITY OF THEIR MEMBERS OR CAME ABOUT IN INQUIRIES DEALING WITH
SUSPECTED CORRUPTION OR MISMANAGEMENT OF GOVERNMENT OFFICIALS.  (FN19)
UNLIKE THE ENGLISH PRACTICE, FROM THE VERY OUTSET THE USE OF CONTEMPT
POWER BY THE LEGISLATURE WAS DEEMED SUBJECT TO JUDICIAL REVIEW. 
(FN20) 

THERE WAS VERY LITTLE USE OF THE POWER OF COMPULSORY PROCESS IN EARLY
YEARS TO ENABLE THE CONGRESS TO OBTAIN FACTS PERTINENT TO THE ENACTMENT
OF NEW STATUTES OR THE ADMINISTRATION OF EXISTING LAWS.  THE FIRST
OCCASION FOR SUCH AN INVESTIGATION AROSE IN 1827 WHEN THE HOUSE OF
REPRESENTATIVES WAS CONSIDERING A REVISION OF THE TARIFF LAWS.  (FN21)
IN THE SENATE, THERE WAS NO USE OF FACT-FINDING INVESTIGATION IN AID OF
LEGISLATION UNTIL 1859.  (FN22)  IN THE LEGISLATIVE REORGANIZATION ACT,
THE COMMITTEE ON UN-AMERICAN ACTIVITIES WAS THE ONLY STANDING COMMITTEE
OF THE HOUSE OF REPRESENTATIVES THAT WAS GIVEN THE POWER TO COMPEL
DISCLOSURES.  (FN23) 

IT IS NOT SURPRISING, FROM THE FACT THAT THE HOUSES OF CONGRESS SO
SPARINGLY EMPLOYED THE POWER TO CONDUCT INVESTIGATIONS, THAT THERE HAVE
BEEN FEW CASES REQUIRING JUDICIAL REVIEW OF THE POWER.  THE NATION WAS
ALMOST ONE HUNDRED YEARS OLD BEFORE THE FIRST CASE REACHED THIS COURT
TO CHALLENGE THE USE OF COMPULSORY PROCESS AS A LEGISLATIVE DEVICE,
RATHER THAN IN INQUIRIES CONCERNING THE ELECTIONS OR PRIVILEGES OF
CONGRESSMEN.  (FN24)  IN KILBOURN V. THOMPSON, 103 U.S. 168, DECIDED IN
1881, AN INVESTIGATION HAD BEEN AUTHORIZED BY THE HOUSE OF
REPRESENTATIVES TO LEARN THE CIRCUMSTANCES SURROUNDING THE BANKRUPTCY
OF JAY COOKE & COMPANY, IN WHICH THE UNITED STATES HAD DEPOSITED
FUNDS.  THE COMMITTEE BECAME PARTICULARLY INTERESTED IN A PRIVATE REAL
ESTATE POOL THAT WAS A PART OF THE FINANCIAL STRUCTURE.  THE COURT
FOUND THAT THE SUBJECT MATTER OF THE INQUIRY WAS "IN ITS NATURE CLEARLY
JUDICIAL AND THEREFORE ONE IN RESPECT TO WHICH NO VALID LEGISLATION
COULD BE ENACTED."  THE HOUSE HAD THEREBY EXCEEDED THE LIMITS OF ITS
OWN AUTHORITY. 

SUBSEQUENT TO THE DECISION IN KILBOURN, UNTIL RECENT TIMES, THERE
WERE VERY FEW CASES DEALING WITH THE INVESTIGATIVE POWER.  (FN25)  THE
MATTER CAME TO THE FORE AGAIN WHEN THE SENATE UNDERTOOK TO STUDY THE
CORRUPTION IN THE HANDLING OF OIL LEASES IN THE 1920'S.  IN MCGRAIN V.
DAUGHERTY, 273 U.S. 135, AND SINCLAIR V. UNITED STATES, 279 U.S. 263,
THE COURT APPLIED THE PRECEPTS OF KILBOURN TO UPHOLD THE AUTHORITY OF
THE CONGRESS TO CONDUCT THE CHALLENGED INVESTIGATIONS.  THE COURT
RECOGNIZED THE DANGER TO EFFECTIVE AND HONEST CONDUCT OF THE GOVERNMENT
IF THE LEGISLATURE'S POWER TO PROBE CORRUPTION IN THE EXECUTIVE BRANCH
WERE UNDULY HAMPERED. 

FOLLOWING THESE IMPORTANT DECISIONS, THERE WAS ANOTHER LULL IN
JUDICIAL REVIEW OF INVESTIGATIONS.  THE ABSENCE OF CHALLENGE, HOWEVER,
WAS NOT INDICATIVE OF THE ABSENCE OF INQUIRIES.  TO THE CONTRARY, THERE
WAS VIGOROUS USE OF THE INVESTIGATIVE PROCESS BY A CONGRESS BENT UPON
HARNESSING AND DIRECTING THE VAST ECONOMIC AND SOCIAL FORCES OF THE
TIMES.  ONLY ONE CASE CAME BEFORE THIS COURT, AND THE AUTHORITY OF THE
CONGRESS WAS AFFIRMED.  (FN26) 

IN THE DECADE FOLLOWING WORLD WAR II, THERE APPEARED A NEW KIND OF
CONGRESSIONAL INQUIRY UNKNOWN IN PRIOR PERIODS OF AMERICAN HISTORY. 
PRINCIPALLY THIS WAS THE RESULT OF THE VARIOUS INVESTIGATIONS INTO THE
THREAT OF SUBVERSION OF THE UNITED STATES GOVERNMENT, BUT OTHER
SUBJECTS OF CONGRESSIONAL INTEREST ALSO CONTRIBUTED TO THE CHANGED
SCENE.  THIS NEW PHASE OF LEGISLATIVE INQUIRY INVOLVED A BROAD-SCALE
INTRUSION INTO THE LIVES AND AFFAIRS OF PRIVATE CITIZENS.  IT BROUGHT
BEFORE THE COURTS NOVEL QUESTIONS OF THE APPROPRIATE LIMITS OF
CONGRESSIONAL INQUIRY.  PRIOR CASES, LIKE KILBOURN, MCGRAIN AND
SINCLAIR, HAD DEFINED THE SCOPE OF INVESTIGATIVE POWER IN TERMS OF THE
INHERENT LIMITATIONS OF THE SOURCES OF THAT POWER.  IN THE MORE RECENT
CASES, THE EMPHASIS SHIFTED TO PROBLEMS OF ACCOMMODATING THE INTEREST
OF THE GOVERNMENT WITH THE RIGHTS AND PRIVILEGES OF INDIVIDUALS.  THE
CENTRAL THEME WAS THE APPLICATION OF THE BILL OF RIGHTS AS A RESTRAINT
UPON THE ASSERTION OF GOVERNMENTAL POWER IN THIS FORM. 

IT WAS DURING THIS PERIOD THAT THE FIFTH AMENDMENT PRIVILEGE AGAINST
SELF-INCRIMINATION WAS FREQUENTLY INVOKED AND RECOGNIZED AS A LEGAL
LIMIT UPON THE AUTHORITY OF A COMMITTEE TO REQUIRE THAT A WITNESS
ANSWER ITS QUESTIONS.  (FN27)  SOME EARLY DOUBTS AS TO THE
APPLICABILITY OF THAT PRIVILEGE BEFORE A LEGISLATIVE COMMITTEE NEVER
MATURED.  (FN28)  WHEN THE MATTER REACHED THIS COURT, THE GOVERNMENT
DID NOT CHALLENGE IN ANY WAY THAT THE FIFTH AMENDMENT PROTECTION WAS
AVAILABLE TO THE WITNESS, AND SUCH A CHALLENGE COULD NOT HAVE
PREVAILED.  IT CONFINED ITS ARGUMENT TO THE CHARACTER OF THE ANSWERS
SOUGHT AND TO THE ADEQUACY OF THE CLAIM OF PRIVILEGE.  QUINN V. UNITED
STATES, 349 U.S. 155; EMSPAK V. UNITED STATES, 349 U.S. 190; BART V.
UNITED STATES, 349 U.S. 219.  (FN29) 

A FAR MORE DIFFICULT TASK EVOLVED FROM THE CLAIM BY WITNESSES THAT
THE COMMITTEES' INTERROGATIONS WERE INFRINGEMENTS UPON THE FREEDOMS OF
THE FIRST AMENDMENT.  (FN30)  CLEARLY, AN INVESTIGATION IS SUBJECT TO
THE COMMAND THAT THE CONGRESS SHALL MAKE NO LAW ABRIDGING FREEDOM OF
SPEECH OR PRESS OR ASSEMBLY   WHILE IT IS TRUE THAT THERE IS NO STATUTE
TO BE REVIEWED, AND THAT AN INVESTIGATION IS NOT A LAW, NEVERTHELESS AN
INVESTIGATION IS PART OF LAWMAKING.  IT IS JUSTIFIED SOLELY AS AN
ADJUNCT TO THE LEGISLATIVE PROCESS.  THE FIRST AMENDMENT MAY BE INVOKED
AGAINST INFRINGEMENT OF THE PROTECTED FREEDOMS BY LAW OR BY LAWMAKING. 
(FN31) 

ABUSES OF THE INVESTIGATIVE PROCESS IMPERCEPTIBLY LEAD TO ABRIDGEMENT
OF PROTECTED FREEDOMS.  THE MERE SUMMONING OF A WITNESS AND COMPELLING
HIM TO TESTIFY, AGAINST HIS WILL, ABOUT HIS BELIEFS, EXPRESSIONS OR
ASSOCIATIONS IS A MEASURE OF GOVERNMENTAL INTERFERENCE.  AND WHEN THOSE
FORCED REVELATIONS CONCERN MATTERS THAT ARE UNORTHODOX, UNPOPULAR, OR
EVEN HATEFUL TO THE GENERAL PUBLIC, THE REACTION IN THE LIFE OF THE
WITNESS MAY BE DISASTROUS.  THIS EFFECT IS EVEN MORE HARSH WHEN IT IS
PAST BELIEFS, EXPRESSIONS OR ASSOCIATIONS THAT ARE DISCLOSED AND JUDGES
BY CURRENT STANDARDS RATHER THAN THOSE CONTEMPORARY WITH THE MATTERS
EXPOSED.  NOR DOES THE WITNESS ALONE SUFFER THE CONSEQUENCES.  THOSE
WHO ARE IDENTIFIED BY WITNESSES AND THEREBY PLACED IN THE SAME GLARE OF
PUBLICITY ARE EQUALLY SUBJECT TO PUBLIC STIGMA, SCORN AND OBLOQUY. 
BEYOND THAT, THAT IS THE MORE SUBTLE AND IMMEASURABLE EFFECT UPON THOSE
WHO TEND TO ADHERE TO THE MOST ORTHODOX AND UNCONTROVERSIAL VIEWS AND
ASSOCIATIONS IN ORDER TO AVOID A SIMILAR FATE AT SOME FUTURE TIME. 
THAT THIS IMPACT IS PARTLY THE RESULT OF NON-GOVERNMENTAL ACTIVITY BY
PRIVATE PERSONS CANNOT RELIEVE THE INVESTIGATORS OF THEIR
RESPONSIBILITY FOR INITIATING THE REACTION. 

THE COURT RECOGNIZED THE RESTRAINTS OF THE BILL OF RIGHTS UPON
CONGRESSIONAL INVESTIGATIONS IN UNITED STATES V. RUMELY, 345 U.S. 41. 
THE MAGNITUDE AND COMPLEXITY OF THE PROBLEM OF APPLYING THE FIRST
AMENDMENT TO THAT CASE LED THE COURT TO CONSTRUE NARROWLY THE
RESOLUTION DESCRIBING THE COMMITTEE'S AUTHORITY.  IT WAS CONCLUDED
THAT, WHEN FIRST AMENDMENT RIGHTS ARE THREATENED, THE DELEGATION OF
POWER TO THE COMMITTEE MUST BE CLEARLY REVEALED IN ITS CHARTER. 

ACCOMMODATION OF THE CONGRESSIONAL NEED FOR PARTICULAR INFORMATION
WITH THE INDIVIDUAL AND PERSONAL INTEREST IN PRIVACY IS AN ARDUOUS AND
DELICATE TASK FOR ANY COURT.  WE DO NOT UNDERESTIMATE THE DIFFICULTIES
THAT WOULD ATTEND SUCH AN UNDERTAKING.  IT IS MANIFEST THAT DESPITE THE
ADVERSE EFFECTS WHICH FOLLOW UPON COMPELLED DISCLOSURE OF PRIVATE
MATTERS, NOT ALL SUCH INQUIRIES ARE BARRED.  KILBOURN V. THOMPSON
TEACHES THAT SUCH AN INVESTIGATION INTO INDIVIDUAL AFFAIRS IS INVALID
IF UNRELATED TO ANY LEGISLATIVE PURPOSE.  THAT IS BEYOND THE POWERS
CONFERRED UPON THE CONGRESS IN THE CONSTITUTION.  UNITED STATES V.
RUMELY MAKES IT PLAIN THAT THE MERE SEMBLANCE OF LEGISLATIVE PURPOSE
WOULD NOT JUSTIFY AN INQUIRY IN THE FACE OF THE BILL OF RIGHTS.  THE
CRITICAL ELEMENT IS THE EXISTENCE OF, AND THE WEIGHT TO BE ASCRIBED TO,
THE INTEREST OF THE CONGRESS IN DEMANDING DISCLOSURES FROM AN UNWILLING
WITNESS.  WE CANNOT SIMPLY ASSUME, HOWEVER, THAT EVERY CONGRESSIONAL
INVESTIGATION IS JUSTIFIED BY A PUBLIC NEED THAT OVERBALANCES ANY
PRIVATE RIGHTS AFFECTED.  TO DO SO WOULD BE TO ABDICATE THE
RESPONSIBILITY PLACED BY THE CONSTITUTION UPON THE JUDICIARY TO INSURE
THAT THE CONGRESS DOES NOT UNJUSTIFIABLY ENCROACH UPON AN INDIVIDUAL'S
RIGHT TO PRIVACY NOR ABRIDGE HIS LIBERTY OF SPEECH, PRESS, RELIGION OR
ASSEMBLY. 

PETITIONER HAS EARNESTLY SUGGESTED THAT THE DIFFICULT QUESTIONS OF
PROTECTING THESE RIGHTS FROM INFRINGEMENT BY LEGISLATIVE INQUIRIES CAN
BE SURMOUNTED IN THIS CASE BECAUSE THERE WAS NO PUBLIC PURPOSE SERVED
IN HIS INTERROGATION.  HIS CONCLUSION IS BASED UPON THE THESIS THAT THE
SUBCOMMITTEE WAS ENGAGED IN A PROGRAM OF EXPOSURE FOR THE SAKE OF
EXPOSURE.  THE SOLE PURPOSE OF THE INQUIRY, HE CONTENDS, WAS TO BRING
DOWN UPON HIMSELF AND OTHERS THE VIOLENCE OF PUBLIC REACTION BECAUSE OF
THEIR PAST BELIEFS, EXPRESSIONS AND ASSOCIATIONS.  IN SUPPORT OF THIS
ARGUMENT, PETITIONER HAS MARSHALLED AN IMPRESSIVE ARRAY OF EVIDENCE
THAT SOME CONGRESSMEN HAVE BELIEVED THAT SUCH WAS THEIR DUTY, OR PART
OF IT.  (FN32) 

WE HAVE NO DOUBT THAT THERE IS NO CONGRESSIONAL POWER TO EXPOSE FOR
THE SAKE OF EXPOSURE.  THE PUBLIC IS, OF COURSE, ENTITLED TO BE
INFORMED CONCERNING THE WORKINGS OF ITS GOVERNMENT.  (FN33) THAT CANNOT
BE INFLATED INTO A GENERAL POWER TO EXPOSE WHERE THE PREDOMINANT RESULT
CAN ONLY BE AN INVASION OF THE PRIVATE RIGHTS OF INDIVIDUALS.  BUT A
SOLUTION TO OUR PROBLEM IS NOT TO BE FOUND IN TESTING THE MOTIVES OF
COMMITTEE MEMBERS FOR THIS PURPOSE.  SUCH IS NOT OUR FUNCTION.  THEIR
MOTIVES ALONE WOULD NOT VITIATE AN INVESTIGATION WHICH HAD BEEN
INSTITUTED BY A HOUSE OF CONGRESS IF THAT ASSEMBLY'S LEGISLATIVE
PURPOSE IS BEING SERVED.  (FN34) 

PETITIONER'S CONTENTIONS DO POINT TO A SITUATION OF PARTICULAR
SIGNIFICANCE FROM THE STANDPOINT OF THE CONSTITUTIONAL LIMITATIONS UPON
CONGRESSIONAL INVESTIGATIONS.  THE THEORY OF A COMMITTEE INQUIRY IS
THAT THE COMMITTEE MEMBERS ARE SERVING AS THE REPRESENTATIVES OF THE
PARENT ASSEMBLY IN COLLECTING INFORMATION FOR A LEGISLATIVE PURPOSE. 
THEIR FUNCTION IS TO ACT AS THE EYES AND EARS OF THE CONGRESS IN
OBTAINING FACTS UPON WHICH THE FULL LEGISLATURE CAN ACT.  TO CARRY OUT
THIS MISSION, COMMITTEES AND SUBCOMMITTEES, SOMETIMES ONE CONGRESSMAN,
ARE ENDOWED WITH THE FULL POWER OF THE CONGRESS TO COMPEL TESTIMONY. 
IN THIS CASE, ONLY TWO MEN EXERCISED THAT AUTHORITY IN DEMANDING
INFORMATION OVER PETITIONER'S PROTEST.    AN ESSENTIAL PREMISE IN THIS
SITUATION IS THAT THE HOUSE OR SENATE SHALL HAVE INSTRUCTED THE
COMMITTEE MEMBERS ON WHAT THEY ARE TO DO WITH THE POWER DELEGATED TO
THEM.  IT IS THE RESPONSIBILITY OF THE CONGRESS, IN THE FIRST INSTANCE,
TO INSURE THAT COMPULSORY PROCESS IS USED ONLY IN FURTHERANCE OF A
LEGISLATIVE PURPOSE.  THAT REQUIRES THAT THE INSTRUCTIONS TO AN
INVESTIGATING COMMITTEE SPELL OUT THAT GROUP'S JURISIDICTION AND
PURPOSE WITH SUFFICIENT PARTICULARITY.  THOSE INSTRUCTIONS ARE EMBODIED
IN THE AUTHORIZING RESOLUTION.  THAT DOCUMENT IS THE COMMITTEE'S
CHARTER.  BROADLY DRAFTED AND LOOSELY WORDED, HOWEVER, SUCH RESOLUTIONS
CAN LEAVE TREMENDOUS LATITUDE TO THE DISCRETION OF THE INVESTIGATORS. 
THE MORE VAGUE THE COMMITTEE'S CHARTER IS, THE GREATER BECOMES THE
POSSIBILITY THAT THE COMMITTEE'S SPECIFIC ACTIONS ARE NOT IN CONFORMITY
WITH THE WILL OF THE PARENT HOUSE OF CONGRESS. 

THE AUTHORIZING RESOLUTION OF THE UN-AMERICAN ACTIVITIES COMMITTEE
WAS ADOPTED IN 1938 WHEN A SELECT COMMITTEE, UNDER THE CHAIRMANSHIP OF
REPRESENTATIVE DIES, WAS CREATED.  (FN35)  SEVERAL YEARS LATER, THE
COMMITTEE WAS MADE A STANDING ORGAN OF THE HOUSE WITH THE SAME
MANDATE.  (FN36)  IT DEFINES THE COMMITTEE'S AUTHORITY AS FOLLOWS: 

"THE COMMITTEE ON UN-AMERICAN ACTIVITIES, AS A WHOLE OR BY
SUBCOMMITTEE, IS AUTHORIZED TO MAKE FROM TIME TO TIME INVESTIGATIONS OF
(1) THE EXTENT, CHARACTER, AND OBJECTS OF UN-AMERICAN PROPAGANDA
ACTIVITIES IN THE UNITED STATES, (2) THE DIFFUSION WITHIN THE UNITED
STATES OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT IS INSTIGATED FROM
FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN AND ATTACKS THE PRINCIPLE OF
THE FORM OF GOVERNMENT AS GUARANTEED BY OUR CONSTITUTION, AND (3) ALL
OTHER QUESTIONS IN RELATION THERETO THAT WOULD AID CONGRESS IN ANY
NECESSARY REMEDIAL LEGISLATION."  (FN37) 

IT WOULD BE DIFFICULT TO IMAGINE A LESS EXPLICIT AUTHORIZING
RESOLUTION.  WHO CAN DEFINE THE MEANING OF "UN-AMERICAN"?  WHAT IS THAT
SINGLE, SOLITARY "PRINCIPLE OF THE FORM OF GOVERNMENT AS GUARANTEED BY
OUR CONSTITUTION"?  (FN38)  THERE IS NO NEED TO DWELL UPON THE
LANGUAGE, HOWEVER.  AT ONE TIME, PERHAPS, THE RESOLUTION MIGHT HAVE
BEEN READY NARROWLY TO CONFINE THE COMMITTEE TO THE SUBJECT OF
PROPAGANDA.  (FN39)  THE EVENTS THAT HAVE TRANSPIRED IN THE FIFTEEN
YEARS BEFORE THE INTERROGATIONS OF PETITIONER MAKE SUCH A CONSTRUCTION
IMPOSSIBLE AT THIS DATE. 

THE MEMBERS OF THE COMMITTEE HAVE CLEARLY DEMONSTRATED THAT THEY DID
NOT FEEL THEMSELVES RESTRICTED IN ANY WAY TO PROPAGANDA IN THE NARROW
SENSE OF THE WORD.  (FN40)  UNQUESTIONABLY THE COMMITTEE CONCEIVED OF
ITS TASK IN THE GRAND VIEW OF ITS NAME.  UN-AMERICAN ACTIVITIES WERE
ITS TARGET, NO MATTER HOW OR WHERE MANIFESTED,  NOTWITHSTANDING THE
BROAD PURVIEW OF THE COMMITTEE'S EXPERIENCE, THE HOUSE OF
REPRESENTATIVES REPEATEDLY APPROVED ITS CONTINUATION.  FIVE TIMES IT
EXTENDED THE LIFE OF THE SPECIAL COMMITTEE.  (FN41)  THEN IT MADE THE
GROUP A STANDING COMMITTEE OF THE HOUSE.  (FN42)  A YEAR LATER, THE
COMMITTEE'S CHARTER WAS EMBODIED IN THE LEGISLATIVE REORGANIZATION
ACT.  (FN43)  ON FIVE OCCASIONS, AT THE BEGINNING OF SESSIONS OF
CONGRESS, IT HAS MADE THE AUTHORIZING RESOLUTION PART OF THE RULES OF
THE HOUSE.  (FN44)  ON INNUMERABLE OCCASIONS, IT HAS PASSED
APPROPRIATION BILLS TO ALLOW THE COMMITTEE TO CONTINUE ITS EFFORTS. 

COMBINING THE LANGUAGE OF THE RESOLUTION WITH THE CONSTRUCTION IT HAS
BEEN GIVEN, IT IS EVIDENT THAT THE PRELIMINARY CONTROL OF THE COMMITTEE
EXERCISED BY THE HOUSE OF REPRESENTATIVES IS SLIGHT OR NON-EXISTENT. 
NO ONE COULD REASONABLY DEDUCE FROM THE CHARTER THE KIND OF
INVESTIGATION THAT THE COMMITTEE WAS DIRECTED TO MAKE.  AS A RESULT, WE
ARE ASKED TO ENGAGE IN A PROCESS OF RETROACTIVE RATIONALIZATION. 
LOOKING BACKWARD FROM THE EVENTS THAT TRANSPIRED, WE ARE ASKED TO
UPHOLD THE COMMITTEE'S ACTIONS UNLESS IT APPEARS THAT THEY WERE CLEARLY
NOT AUTHORIZED BY THE CHARTER.  AS A COROLLARY TO THIS INVERSE
APPROACH, THE GOVERNMENT URGES THAT WE MUST VIEW THE MATTER HOSPITABLY
TO THE POWER OF THE CONGRESS - THAT IF THERE IS ANY LEGISLATIVE PURPOSE
WHICH MIGHT HAVE BEEN FURTHERED BY THE KIND OF DISCLOSURE SOUGHT, THE
WITNESS MUST BE PUNISHED FOR WITHHOLDING IT.  NO DOUBT EVERY REASONABLE
INDULGENCE OF LEGALITY MUST BE ACCORDED TO THE ACTIONS OF A COORDINATE
BRANCH OF OUR GOVERNMENT.  BUT SUCH DEFERENCE CANNOT YIELD TO AN
UNNECESSARY AND UNREASONABLE DISSIPATION OF PRECIOUS CONSTITUTIONAL
FREEDOMS. 

THE GOVERNMENT CONTENDS THAT THE PUBLIC INTEREST AT THE CORE OF THE
INVESTIGATIONS OF THE UN-AMERICAN ACTIVITIES COMMITTEE IS THE NEED BY
THE CONGRESS TO BE INFORMED OF EFFORTS TO OVERTHROW THE GOVERNMENT BY
FORCE AND VIOLENCE SO THAT ADEQUATE LEGISLATIVE SAFEGUARDS CAN BE
ERECTED.  FROM THIS CORE, HOWEVER, THE COMMITTEE CAN RADIATE OUTWARD
INFINITELY TO ANY TOPIC THOUGHT TO BE RELATED IN SOME WAY TO ARMED
INSURRECTION.  THE OUTER REACHES OF THIS DOMAIN ARE KNOWN ONLY BY THE
CONTENT OF "UN-AMERICAN ACTIVITIES."  REMOTENESS OF SUBJECT CAN BE
AGGRAVATED BY A PROBE FOR A DEPTH OF DETAIL EVEN FARTHER REMOVED FROM
ANY BASIS OF LEGISLATIVE ACTION.  A THIRD DIMENSION IS ADDED WHEN THE
INVESTIGATORS TURN THEIR ATTENTION TO THE PAST TO COLLECT MINUTIAE ON
REMOTE TOPICS, ON THE HYPOTHESIS THAT THE PAST MAY REFLECT UPON THE
PRESENT. 

THE CONSEQUENCES THAT FLOW FROM THIS SITUATION ARE MANIFOLD.  IN THE
FIRST PLACE, A REVIEWING COURT IS UNABLE TO MAKE THE KIND OF JUDGMENT
MADE BY THE COURT IN UNITED STATES V. RUMELY, SUPRA. THE COMMITTEE IS
ALLOWED, IN ESSENCE, TO DEFINE ITS OWN AUTHORITY, TO CHOOSE THE
DIRECTION AND FOCUS OF ITS ACTIVITIES.  IN DECIDING WHAT TO DO WITH THE
POWER THAT HAS BEEN CONFERRED UPON THEM, MEMBERS OF THE COMMITTEE MAY
ACT PURSUANT TO MOTIVES THAT SEEM TO THEM TO BE THE HIGHEST.  THEIR
DECISIONS, NEVERTHELESS, CAN LEAD TO RUTHLESS EXPOSURE OF PRIVATE LIVES
IN ORDER TO GATHER DATA THAT IS NEITHER DESIRED BY THE CONGRESS NOR
USEFUL TO IT.  YET IT IS IMPOSSIBLE IN THIS CIRCUMSTANCE, WITH
CONSTITUTIONAL FREEDOMS IN JEOPARDY, TO DECLARE THAT THE COMMITTEE HAS
RANGED BEYOND THE AREA COMMITTED TO IT BY ITS PARENT ASSEMBLY BECAUSE
THE BOUNDARIES ARE SO NEBULOUS. 

MORE IMPORTANT AND MORE FUNDAMENTAL THAN THAT, HOWEVER, IT INSULATES
THE HOUSE THAT HAS AUTHORIZED THE INVESTIGATION FROM THE WITNESSES WHO
ARE SUBJECTED TO THE SANCTIONS OF COMPULSORY PROCESS.  THERE IS A WIDE
GULF BETWEEN THE RESPONSIBILITY FOR THE USE OF INVESTIGATIVE POWER AND
THE ACTUAL EXERCISE OF THAT POWER.  THIS IS AN ESPECIALLY VITAL
CONSIDERATION IN ASSURING RESPECT FOR CONSTITUTIONAL LIBERTIES. 
PROTECTED FREEDOMS SHOULD NOT BE PLACED IN DANGER IN THE ABSENCE OF A
CLEAR DETERMINATION BY THE HOUSE OR THE SENATE THAT A PARITICULAR
INQUIRY IS JUSTIFIED BY A SPECIFIC LEGISLATIVE NEED. 

IT IS, OF COURSE, NOT THE FUNCTION OF THIS COURT TO PRESCRIBE RIGID
RULES FOR THE CONGRESS TO FOLLOW IN DRAFTING RESOLUTIONS ESTABLISHING
INVESTIGATING COMMITTEES.  THAT IS A MATTER PECULIARLY WITHIN THE REALM
OF THE LEGISLATURE, AND ITS DECISIONS WILL BE ACCEPTED BY THE COURTS UP
TO THE POINT WHERE THEIR OWN DUTY TO ENFORCE THE CONSTITUTIONALLY
PROTECTED RIGHTS OF INDIVIDUALS IS AFFECTED.  AN EXCESSIVELY BROAD
CHARTER, LIKE THAT OF THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE,
PLACES THE COURTS IN AN UNTENABLE POSITION IF THEY ARE TO STRIKE A
BALANCE BETWEEN THE PUBLIC NEED FOR A PARTICULAR INTERROGATION AND THE
RIGHT OF CITIZENS TO CARRY ON THEIR AFFAIRS FREE FROM UNNECESSARY
GOVERNMENTAL INTERFERENCE.  IT IS IMPOSSIBLE IN SUCH A SITUATION TO
ASCERTAIN WHETHER ANY LEGISLATIVE PURPOSE JUSTIFIES THE DISCLOSURES
SOUGHT AND, IF SO, THE IMPORTANCE OF THAT INFORMATION TO THE CONGRESS
IN FURTHERANCE OF ITS LEGISLATIVE FUNCTION.  THE REASON NO COURT CAN
MAKE THIS CRITICAL JUDGMENT IS THAT THE HOUSE OF REPRESENTATIVES ITSELF
NEVER MADE IT.  ONLY THE LEGISLATIVE ASSEMBLY INITIATING AN
INVESTIGATION CAN ASSAY THE RELATIVE NECESSITY OF SPECIFIC
DISCLOSURES. 

ABSENCE OF THE QUALITATIVE CONSIDERATION OF PETITIONER'S QUESTIONING
BY THE HOUSE OF REPRESENTATIVES AGGRAVATES A SERIOUS PROBLEM, REVEALED
IN THIS CASE, IN THE RELATIONSHIP OF CONGRESSIONAL INVESTIGATING
COMMITTEES AND THE WITNESSES WHO APPEAR BEFORE THEM.  PLAINLY THESE
COMMITTEES ARE RESTRICTED TO THE MISSIONS DELEGATED TO THEM, I.E., TO
ACQUIRE CERTAIN DATA TO BE USED BY THE HOUSE OR THE SENATE IN COPING
WITH A PROBLEM THAT FALLS WITHIN ITS LEGISLATIVE SPHERE.  NO WITNESS
CAN BE COMPELLED TO MAKE DISCLOSURES ON MATTERS OUTSIDE THAT AREA. 
THIS IS A JURISIDCTIONAL CONCEPT OF PERTINENCY DRAWN FROM THE NATURE OF
A CONGRESSIONAL COMMITTEE'S SOURCE OF AUTHORITY.  IT IS NOT WHOLLY
DIFFERENT FROM NOR UNRELATED TO THE ELEMENT OF PERTINENCY EMBODIED IN
THE CRIMINAL STATUTE UNDER WHICH PETITIONER WAS PROSECUTED.  WHEN THE
DEFINITION OF JURISDICTIONAL PERTINENCY IS AS UNCERTAIN AND WAVERING AS
IN THE CASE OF THE UN-AMERICAN ACTIVITIES COMMITTEE, IT BECOMES
EXTREMELY DIFFICULT FOR THE COMMITTEE TO LIMIT ITS INQUIRIES TO
STATUTORY PERTINENCY. 

SINCE WORLD WAR II, THE CONGRESS HAS PRACTICALLY ABANDONED ITS
ORIGINAL PRACTICE OF UTILIZING THE COERCIVE SANCTION OF CONTEMPT
PROCEEDINGS AT THE BAR OF THE HOUSE.  THE SANCTION THERE IMPOSED IS
IMPRISONMENT BY THE HOUSE UNTIL THE RECALCITRANT WITNESS AGREES TO
TESTIFY OR DISCLOSE THE MATTERS SOUGHT, PROVIDED THAT THE INCARCERATION
DOES NOT EXTEND BEYOND ADJOURNMENT.  THE CONGRESS HAS INSTEAD INVOKED
THE AID OF THE FEDERAL JUDICIAL SYSTEM IN PROTECTING ITSELF AGAINST
CONTUMACIOUS CONDUCT.  IT HAS BECOME CUSTOMARY TO REFER THESE MATTERS
TO THE UNITED STATES ATTORNEYS FOR PROSECUTION UNDER CRIMINAL LAW. 

THE APPROPRIATE STATUTE IS FOUND IN 2 U.S.C. SEC. 192.  IT PROVIDES: 

"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 JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, 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 JAIL FOR NOT LESS THAN ONE MONTH NOR
MORE THAN TWELVE MONTHS."  (FN45) 

IN FULFILLMENT OF THEIR OBLIGATION UNDER THIS STATUTE, THE COURTS
MUST ACCORD TO THE DEFENDANTS EVERY RIGHT WHICH IS GUARANTEED TO
DEFENDANTS IN ALL OTHER CRIMINAL CASES.  AMONG THESE IS THE RIGHT TO
HAVE AVAILABLE, THROUGH A SUFFICIENT PRECISE STATUTE, INFORMATION
REVEALING THE STANDARD OF CRIMINALITY BEFORE THE COMMISSION OF THE
ALLEGED OFFENSE.  (FN46)  APPLIED TO PERSONS PROSECUTED UNDER SEC. 192,
THIS RAISES A SPECIAL PROBLEM IN THAT THE STATUTE DEFINES THE CRIME AS
REFUSAL TO ANSWER "ANY QUESTION PERTINENT TO THE QUESTION UNDER
INQUIRY."  PART OF THE STANDARD OF CRIMINALITY, THEREFORE, IS THE
PERTINENCY OF THE QUESTIONS PROPOUNDED TO THE WITNESS.  (FN47) 

THE PROBLEM ATTAINS PROPORTION WHEN VIEWED FROM THE STANDPOINT OF THE
WITNESS WHO APPEARS BEFORE A CONGRESSIONAL COMMITTEE.  HE MUST DECIDE
AT THE TIME THE QUESTIONS ARE PROPOUNDED WHETHER OR NOT TO ANSWER.  AS
THE COURT SAID IN SINCLAIR V. UNITED STATES, 279 U.S. 263, THE WITNESS
ACTS AT HIS PERIL.  HE IS "  ...  BOUND RIGHTLY TO CONSTRUE THE
STATUTE."  ID., AT 299.  AN ERRONEOUS DETERMINATION ON HIS PART, EVEN
IF MADE IN THE UTMOST GOOD FAITH, DOES NOT EXCULPATE HIM IF THE COURT
SHOULD LATER RULE THAT THE QUESTIONS WERE PERTINENT TO THE QUESTION
UNDER INQUIRY. 

IT IS OBVIOUS THAT A PERSON COMPELLED TO MAKE THIS CHOICE IS ENTITLED
TO HAVE KNOWLEDGE OF THE SUBJECT TO WHICH THE INTERROGATION IS DEEMED
PERTINENT.  THAT KNOWLEDGE MUST BE AVAILABLE WITH THE SAME DEGREE OF
EXPLICITNESS AND CLARITY THAT THE DUE PROCESS CLAUSE REQUIRES IN THE
EXPRESSION OF ANY ELEMENT OF A CRIMINAL OFFENSE.  THE "VICE OF
VAGUENESS"  (FN48) MUST BE AVOIDED HERE AS IN ALL OTHER CRIMES.  THERE
ARE SEVERAL SOUCES THAT CAN OUTLINE THE "QUESTION UNDER INQUIRY" IN
SUCH A WAY THAT THE RULES AGAINST VAGUENSSS ARE SATISFIED.  THE
AUTHORIZING RESOLUTION, OR EVEN THE NATURE OF THE PROCEEDINGS
THEMSELVES, MIGHT SOMETIMES MAKE THE TOPIC CLEAR.  THIS CASE
DEMONSTRATES, HOWEVER, THAT THESE SOURCES OFTEN LEAVE THE MATTER IN
GRAVE DOUBT. 

THE FIRST POSSIBILITY IS THAT THE AUTHORIZING RESOLUTION ITSELF WILL
SO CLEARLY DECLARE THE "QUESTIONING UNDER INQUIRY" THAT A WITNESS CAN
UNDERSTAND THE PERTINENCY OF QUESTIONS ASKED HIM.  THE GOVERNMENT DOES
NOT CONTEND THAT THE AUTHORIZING RESOLUTION OF THE UN-AMERICAN
ACTIVITIES COMMITTEE COULD SERVE SUCH A PURPOSE.  ITS CONFUSING BREADTH
IS AMPLY ILLUSTRATED BY THE INNUMERABLE AND DIVERSE QUESTIONS INTO
WHICH THE COMMITTEE HAS INQUIRED UNDER THIS CHARTER SINCE 1938.  IF THE
"QUESTION UNDER INQUIRY" WERE STATED WITH SUCH SWEEPING AND UNCERTAIN
SCOPE, WE DOUBT THAT IT WOULD WITHSTAND AN ATTACK ON THE GROUND OF
VAGUENESS. 

THE ISSUE IS NOT BEFORE US, HOWEVER, IN LIGHT OF THE GOVERNMENT'S
POSITION THAT THE IMMEDIATE SUBJECT UNDER INQUIRY BEFORE THE
SUBCOMMITTEE INTERVIEWING PETITIONER WAS ONLY ONE ASPECT OF THE
COMMITTEE'S AUTHORITY TO INVESTIGATE UN-AMERICAN ACTIVITES.  DISTILLING
THAT SINGLE TOPIC FROM THE BROAD FIELD IS AN EXTREMELY DIFFICULT TASK
UPON THE RECORD BEFORE US.  THERE WAS AN OPENING STATEMENT BY THE
COMMITTEE CHAIRMAN AT  THE OUTSET OF THE HEARING, BUT THIS GIVES US NO
GUIDANCE.  IN THIS STATEMENT, THE CHIARMAN DID NO MORE THAN PARAPHRASE
THE AUTHORIZING RESOLUTION AND GIVE A VERY GENERAL SKETCH OF THE PAST
EFFORTS OF THE COMMITTEE.  (FN49)    NO AID IS GIVEN AS TO THE
"QUESTION UNDER INQUIRY" IN THE ACTION OF THE FULL COMMITTEE THAT
AUTHORIZED THE CREATION OF THE SUBCOMMITTEE BEFORE WHICH PETITIONER
APPEARED.  THE COMMITTEE ADOPTED A FORMAL RESOLUTION GIVING THE
CHAIRMAN THE POWER TO APPOINT SUBCOMMITTEES "  ...  FOR THE PURPOSE OF
PERFORMING ANY AND ALL ACTS WHICH THE COMMITTEE AS A WHOLE IS
AUTHORIZED TO DO."  (FN50)  IN EFFECT, THIS WAS A DEVICE TO ENABLE THE
INVESTIGATIONS TO PROCEED WITH A QUORUM OF ONE OR TWO MEMBERS AND SHEDS
NO LIGHT ON THE RELEVANCY OF THE QUESTIONS ASKED OF PETITIONER. 
(FN51) 

THE GOVERNMENT BELIEVES THAT THE TOPIC OF INQUIRY BEFORE THE
SUBCOMMITTEE CONCERNED COMMUNIST INFILTRATION IN LABOR.  IN HIS
INTRODUCTORY REMARKS, THE CHAIRMAN MADE REFERENCE TO A BILL, THEN
PENDING BEFORE THE COMMITTEE, (FN52) WHICH WOULD HAVE PENALIZED LABOR
UNIONS CONTROLLED OR DOMINATED BY PERSONS WHO WERE, OR HAD BEEN,
MEMBERS OF A "COMMUNIST-ACTION" ORGANIZATION, AS DEFINED IN THE
INTERNAL SECURITY ACT OF 1950.  THE SUBCOMMITTEE, IT IS CONTENDED,
MIGHT HAVE BEEN ENDEAVORING TO DETERMINE THE EXTENT OF SUCH A PROBLEM. 

THIS VIEW IS CORROBORATED SOMEWHAT BY THE WITNESSES WHO PRECEDED AND
FOLLOWED PETITIONER BEFORE THE SUBCOMMITTEE.  LOOKING AT THE ENTIRE
HEARINGS, HOWEVER, THERE IS STRONG REASON TO DOUBT THAT THE SUBJECT
REVOLVED ABOUT LABOR MATTERS.  THE PUBLISHED TRANSCRIPT IS ENTITLED:
INVESTIGATION OF COMMUNIST ACTIVITIES IN THE CHICAGO AREA, AND SIX OF
THE NINE WITNESSES HAD NO CONNECTION WITH LABOR AT ALL.  (FN53) 

THE MOST SERIOUS DOUBTS AS TO THE SUBCOMMITTEE'S "QUESTION UNDER
INQUIRY," HOWEVER, STEM FROM THE PRECISE QUESTIONS THAT PETITIONER HAS
BEEN CHARGED WITH REFUSING TO ANSWER.  UNDER THE TERMS OF THE STATUTE,
AFTER ALL, IT IS THESE WHICH MUST BE PROVED PERTINENT.  PETITIONER IS
CHARGED WITH REFUSING TO TELL THE SUBCOMMITTEE WHETHER OR NOT HE KNEW
THAT CERTAIN NAMED PERSONS HAD BEEN MEMBERS OF THE COMMUNIST PARTY IN
THE PAST.  THE SUBCOMMITTEE'S COUNSEL READ THE LIST FROM THE TESTIMONY
OF A PREVIOUS WITNESS WHO HAD IDENTIFIED THEM AS COMMUNISTS.  ALTHOUGH
THIS FORMER WITNESS WAS IDENTIFIED WITH LABOR, HE HAD NOT STATED THAT
THE PERSONS HE NAMED WERE INVOLVED IN UNION AFFAIRS.  OF THE THIRTY
NAMES PROPOUNDED TO PETITIONER, SEVEN WERE COMPLETELY UNCONNECTED WITH
ORGANIZED LABOR.  ONE OPERATED A BEAUTY PARLOR.  ANOTHER WAS A
WATCHMAKER.  SEVERAL WERE IDENTIFIED AS "JUST CITIZENS" OR "ONLY
COMMUNISTS."  WHEN ALMOST A QUARTER OF THE PERSONS ON THE LIST ARE NOT
LABOR PEOPLE, THE INFERENCE BECOMES STRONG THAT THE SUBJECT BEFORE THE
SUBCOMMITTEE WAS NOT DEFINED IN TERMS OF COMMUNISM IN LABOR. 

THE FINAL SOURCE OF EVIDENCE AS TO THE "QUESTION UNDER INQUIRY" IS
THE CHAIRMAN'S RESPONSE WHEN PETITIONER OBJECTED TO THE QUESTIONS ON
THE GROUNDS OF LACK OF PERTINENCY.  THE CHAIRMAN THEN ANNOUNCED THAT
THE SUBCOMMITTEE WAS INVESTIGATING "SUBVERSION AND SUBVERSIVE
PROPAGANDA."  (FN54) THIS IS A SUBJECT AT LEAST AS BROAD AND INDEFINITE
AS THE AUTHORIZING RESOLUTION OF THE COMMITTEE, IF NOT MORE SO. 

HAVING EXHAUSTED THE SEVERAL POSSIBLE INDICIA OF THE "QUESTION UNDER
INQUIRY," WE REMAIN UNENLIGHTENED AS TO THE SUBJECT TO WHICH THE
QUESTIONS ASKED PETITIONER WERE PERTINENT.  CERTAINLY, IF THE POINT IS
THAT OBSCURE AFTER TRIAL AND APPEAL, IT WAS NOT ADEQUATELY REVEALED TO
PETITIONER WHEN HE HAD TO DECIDE AT HIS PERIL WHETHER OR NOT TO
ANSWER.  FUNDAMENTAL FAIRNESS DEMANDS THAT NO WITNESS BE COMPELLED TO
MAKE SUCH A DETERMINATION WITH SO LITTLE GUIDANCE.  UNLESS THE SUBJECT
MATTER HAS BEEN MADE TO APPEAR WITH UNDISPUTABLE CLARITY, IT IS THE
DUTY OF THE INVESTIGATIVE BODY, UPON OBJECTION OF THE WITNESS ON
GROUNDS OF PERTINENCY, TO STATE FOR THE RECORD THE SUBJECT UNDER
INQUIRY AT THAT TIME AND THE MANNER IN WHICH THE PROPOUNDED QUESTIONS
ARE PERTINENT THERETO.  (FN55)  TO BE MEANINGFUL, THE EXPLANATION MUST
DESCRIBE WHAT THE TOPIC UNDER INQUIRY IS AND THE CONNECTIVE REASONING
WHEREBY THE PRECISE QUESTIONS ASKED RELATED TO IT. 

THE STATEMENT OF THE COMMITTEE CHAIRMAN IN THIS CASE, IN RESPONSE TO
PETITIONER'S PROTEST, WAS WOEFULLY INADEQUATE TO CONVEY SUFFICIENT
INFORMATION AS TO THE PERTINENCY OF THE QUESTIONS TO THE SUBJECT UNDER
INQUIRY.  PETITIONER WAS THUS NOT ACCORDED A FAIR OPPORTUNITY TO
DETERMINE WHETHER HE WAS WITHIN HIS RIGHTS IN REFUSING TO ANSWER, AND
HIS CONVICTION IS NECESSARILY INVALID UNDER THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT. 

WE ARE MINDFUL OF THE COMPLEXITIES OF MODERN GOVERNMENT AND THE AMPLE
SCOPE THAT MUST BE LEFT TO THE CONGRESS AS THE SOLE CONSTITUTIONAL
DEPOSITORY OF LEGISLATIVE POWER.  EQUALLY MINDFUL ARE WE OF THE
INDISPENSABLE FUNCTION, IN THE EXERCISE OF THAT POWER, OF CONGRESSIONAL
INVESTIGATIONS.  THE CONCLUSIONS WE HAVE REACHED IN THIS CASE WILL NOT
PREVENT THE CONGRESS, THROUGH ITS COMMITTEES, FROM OBTAINING ANY
INFORMATION IT NEEDS FOR THE PROPER FULFILLMENT OF ITS ROLE IN OUR
SCHEME OF GOVERNMENT.  THE LEGISLATURE IS FREE TO DETERMINE THE KINDS
OF DATA THAT SHOULD BE COLLECTED.  IT IS ONLY THOSE INVESTIGATIONS THAT
ARE CONDUCTED BY USE OF COMPULSORY PROCESS THAT GIVE RISE TO A NEED TO
PROTECT THE RIGHTS OF INDIVIDUALS AGAINST ILLEGAL ENCROACHMENT.  THAT
PROTECTION CAN BE READILY ACHIEVED THROUGH PROCEDURES WHICH PREVENT THE
SEPARATION OF POWER FROM RESPONSIBILITY AND WHICH PROVIDE THE
CONSTITUTIONAL REQUISITES OF FAIRNESS FOR WITNESSES.  A MEASURE OF
ADDED CARE ON THE PART OF THE HOUSE AND THE SENATE IN AUTHORIZING THE
USE OF COMPULSORY PROCESS AND BY THEIR COMMITTES IN EXERCISING THAT
POWER WOULD SUFFICE.  THAT IS A SMALL PRICE TO PAY IF IT SERVES TO
UPHOLD THE PRINCIPLES OF LIMITED, CONSTITUTIONAL GOVERNMENT WITHOUT
CONSTRUCTING THE POWER OF THE CONGRESS TO INFORM ITSELF. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CASE IS
REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE
INDICTMENT.  IT IS SO ORDERED. 

FN1  R. 153-163; HEARINGS BEFORE THE HOUSE OF REPRESENTATIVES
COMMITTEE ON UN-AMERICAN ACTIVITIES ON COMMUNIST ACTIVITIES IN THE
CHICAGO AREA - PART 1, 82D CONG., 2D SESS. 3737-3752. 

FN2  R. 135-149; HEARINGS BEFORE THE HOUSE OF REPRESENTATIVES
COMMITTEE ON UN-AMERICAN ACTIVITIES ON INVESTIGATION OF COMMUNIST
ACTIVITIES IN THE CHICAGO AREA - PART 2, 83D CONG., 2D SESS. 4243
4260. 

FN3  R. 75; HEARINGS, SUPRA, NOTE 2, PART 3, AT 4268. 

FN4  BRIEF FOR RESPONDENT, PP. 59-60. 

FN5  R. 85-86; HEARINGS, SUPRA, NOTE 2, PART 3, AT 4275. 

FN6  THERE WERE NINE CITATIONS OF CONTEMPT VOTED AT THE SAME TIME. 
PETITIONER'S CASE WAS THE SECOND TO BE ACTED UPON.  THERE WAS NO DEBATE
OTHER THAN A STATEMENT BY REPRESENTATIVE JAVITS ON A PROPOSAL TO
CONSOLIDATE THE LEGISLATIVE BODIES INVESTIGATING SUBVERSION.  100 CONG.
REC. 6382-6386.  THE RESOLUTION TO PROSECUTE PETITIONER PASSED BY A
VOICE VOTE. 

THERE WAS LENGTHIER DISCUSSION AND A RECORDED VOTE ON THE FIRST CASE
CONSIDERED BY THE HOUSE.  ID., AT 6375-6382.  IN NONE OF THE CASES WAS
THERE ANY DEBATE ON THE MERITS OF THE WITNESSES' CONDUCT.  ID., AT 6375
6401. 

FN7  THE COUNTS OF THE INDICTMENT WERE PATTERNED FROM THE SEQUENCE OF
THE QUESTIONING BY THE COMMITTEE.  PETITIONER WAS ASKED SEPARATELY
ABOUT SIX PERSONS, AND THESE ARE THE BASIS OF THE FIRST SIX COUNTS. 
THE LAST COUNT COMPRISES THE OMNIBUS QUESTION THAT GAVE A LIST OF
TWENTY-FIVE NAMES FOR PETITIONER TO IDENTIFY.  WITH TWO EXCEPTIONS, THE
QUESTIONS ASKED FOR KNOWLEDGE OF PAST MEMBERSHIP IN THE COMMUNIST
PARTY.  THE CONTEXT OF THE INTERROGATION INDICATES THAT THE COMMITTEE'S
CONCERN WAS WITH SUCH PAST CONDUCT.  PETITIONER AGREED TO AND DID
DISCLOSE HIS KNOWLEDGE OF THOSE HE BELIEVED TO BE PRESENT MEMBERS. 

FN8  "NOW, WE DON'T CLAIM ON BEHALF OF THE GOVERNMENT THAT THERE IS
ANY RIGHT TO EXPOSE FOR THE PURPOSES OF EXPOSURE.  AND I DON'T KNOW
THAT CONGRESS HAS EVER CLAIMED ANY SUCH RIGHT.  BUT WE DO SAY, IN THE
SAME BREATH, THAT THERE IS A RIGHT TO INFORM THE PUBLIC AT THE SAME
TIME YOU INFORM THE CONGRESS." 

FN9  COKE, FOURTH INSTITUTE, 15. 

FN10  H. COMM. J. (1688-1693) 227; JAY V. TOPHAM, 12 HOW.  ST. TR.
822. 

FN11  PROCEEDINGS AGAINST RICHARD THOMPSON, 8 HOW.  ST. TR. 2;
WITTKE, THE HISTORY OF ENGLISH PARLIAMENTARY PRIVILEGE, 50. 

FN12  "FLOYD, FOR UTTERING A FEW CONTEMPTIBLE EXPRESSIONS, WAS
DEGRADED FOR HIS GENTILITY, AND TO BE HELD AN INFAMOUS PERSON; HIS
TESTIMONY NOT TO BE RECEIVED; TO RIDE FROM THE FLEET TO CHEAPSIDE ON
HORSEBACK, WITHOUT A SADDLE, WITH HIS FACE TO THE HORSE'S TAIL, AND THE
TAIL IN HIS HAND, AND THEN TO STAND TWO HOURS IN THE PILLORY, AND TO BE
BRANDED IN THE FOREHEAD WITH THE LETTER K; TO RIDE FOUR DAYS AFTERWARDS
IN THE SAME MANNER TO WESTMINSTER, AND THEN TO STAND TWO HOURS MORE IN
THE PILLORY, WITH WORDS ON A PAPER IN HIS HAT SHOWING HIS OFFENCE; TO
BE WHIPPED AT THE CART'S TAIL FROM THE FLEET TO WESTMINSTER HALL; TO
PAY A FINE OF 5000 POUNDS; AND TO BE A PRISONER IN NEWGATE DURING HIS
LIFE."  1 DE LOLME, THE RISE AND PROGRESS OF THE ENGLISH CONSTITUTION,
348. 

FN13  H.L.J. (1620-1628) 110-111, 113, 116, 124, 125, 127, 132, 133
134, 183; WITTKE, 76-77.  SEE ALSO KELKE, CONSTITUTIONAL LAW AND CASES,
155-156. 

FN14  H.L.J. (1675-1681) 54-55. 

FN15  WITTKE, 122-123.  WITH ALL HIS KNAVERY, WILKES WAS LONG A HERO
WITH CERTAIN PERSECUTED GROUPS IN ENGLAND.  HERE, STREETS AND OTHER
PUBLIC PLACES HAVE BEEN NAMED FOR HIM AND HIS WRITINGS. 

FN16  H. COMM. J. (1835) 533, 564-565, 571, 575. 

FN17  FINER, CONGRESSIONAL INVESTIGATIONS:  THE BRITISH SYSTEM, 18 U.
OF CHI.  L. REV.  521, 554-561; SMELSER, LEGISLATIVE INVESTIGATIONS:
SAFEGUARDS FOR WITNESSES:  THE PROBLEM IN HISTORICAL PERSPECTIVE, 29
NOTRE DAME LAW.  163, 167; CLOKIE & ROBINSON, ROYAL COMMISSIONS OF
INQUIRY. 

FN18  FINER, 559; SMELSER, 167; CLOKIE & ROBINSON, 186-187. 

FN19  SEE LANDIS, CONSTITUTIONAL LIMITATIONS ON THE CONGRESSIONAL
POWER OF INVESTIGATION, 40 HARV. L. REV. 153, 168-191; POTTS, POWER OF
LEGISLATIVE BODIES TO PUNISH FOR CONTEMPT, 74 U. OF PA. L. REV. 691,
719-725. 

FN20  THE FIRST CASE TO REACH THIS COURT WAS ANDERSON V. DUNN, 6
WHEAT.  204, WHICH UPHELD THE POWER OF THE HOUSE OF REPRESENTATIVES TO
REPRIMAND A PERSON FOR ATTEMPTING TO BRIBE A MEMBER OF THE HOUSE. 

FN21  ON DECEMBER 31, 1827, THE HOUSE COMMITTEE ON MANUFACTURERS WAS
GIVEN THE TASK OF INQUIRING INTO THE EFFECT THAT THE PROPOSED UPWARD
REVISION IN THE TARIFF SCHEDULES WOULD HAVE UPON DOMESTIC
MANUFACTURERS.  THE POWER OF THE HOUSE TO AUTHORIZE A FACT-FINDING
INQUIRY IN AID OF LEGISLATION WAS SERIOUSLY CHALLENGED.  AFTER FULL
DEBATE THE INVESTIGATION WAS AUTHORIZED BY A VOTE OF 102 TO 88.  4
CONG. DEB.  889. 

FN22  THE SUBJECT MATTER OF THE SELECT COMMITTEE WAS "  ...  THE LATE
INVASION AND SEIZURE OF THE ARMORY AND ARSENAL OF THE UNITED STATES AT
HARPER'S FERRY, IN VIRGINIA, BY A BAND OF ARMED MEN  ... .  AND THAT
SAID COMMITTEE SHALL REPORT WHETHER ANY AND WHAT LEGISLATION MAY, IN
THEIR OPINION, BE NECESSARY, ON THE PART OF THE UNITED STATES, FOR THE
FUTURE PRESERVATION OF THE PEACE OF THE COUNTRY, OR FOR THE SAFETY OF
THE PUBLIC PROPERTY; AND THAT SAID COMMITTEE SHALL HAVE POWER TO SEND
FOR PERSONS AND PAPERS."  CONG. GLOBE, 36TH CONG., 1ST SESS. 141
(1859). 

FN23  60 STAT. 828-829.  ALL STANDING COMMITTEES IN THE SENATE WERE
INVESTED WITH THE POWER OF COMPULSORY PROCESS.  60 STAT. 830-831. 
DURING THE 83D CONGRESS, TWO OTHER STANDING COMMITTEES IN THE HOUSE OF
REPRESENTATIVES, THE APPROPRIATIONS AND GOVERNMENT OPERATIONS
COMMITTEES, POSSESSED THAT POWER.  99 CONG. REC. 16-19. 

FN24  THE FIRST COURT THAT WAS CALLED UPON TO REVIEW THE
CONSTITUTIONAL VALIDITY OF A LEGISLATIVE INQUIRY WAS THE NEW YORK COURT
OF COMMON PLEAS.  THE CASE AROSE OUT OF THE INQUIRY BY THE COMMON
COUNCIL OF NEW YORK INTO THE CONDUCT OF THE POLICE DEPARTMENT IN 1855. 
JUDGE CHARLES PATRICK DALY UPHELD THE INVESTIGATIVE POWER AS IMPLICIT
IN THE FUNCTIONS OF A LEGISLATURE, BUT RULED THAT THE EXMINATION OF
WITNESSES MUST BE CONFINED TO THE SUBJECT UNDER INVESTIGATION. 
APPLYING THIS STANDARD, HE RULED THAT QUESTIONS DIRECTED TO THE
NATIONAL ORIGIN OF POLICEMEN WERE IMPROPER UNDER THE INVESTIGATORS'
AUTHORIZING RESOLUTION.  BRIGGS V. MACKELLER, 2 ABBOTT'S PRACTICE
REPORTS 30 (N.Y.  COMMON PLEAS 1855). 

FN25  IN RE CHAPMAN, 166 U.S. 661 (UPHELD CONVICTION UNDER R.S. SEC.
102, FORERUNNER OF 2 U.S.C. SEC. 192, FOR REFUSAL TO ANSWER QUESTIONS
IN INQUIRY INTO CHARGES OF CORRUPTION AMONG CERTAIN SENATORS WITH
RESPECT TO PENDING BILL ON SUGAR TARIFF); CF. MARSHALL V. GORDON, 243
U.S. 521. 

FN26  JURNEY V. MACCRACKEN, 294 U.S. 125 (UPHELD POWER OF SENATE TO
PUNISH AS A CONTEMPT THE ACTION OF A WITNESS IN ALLOWING THE
DESTRUCTION AND REMOVAL OF PAPERS SUBJECT TO THE SUBPOENA OF A SENATE
COMMITTEE; HELD THAT ENACTMENT OF 2 U.S.C. SEC. 192 DID NOT IMPAIR
CONTEMPT POWER OF HOUSES OF CONGRESS). 

FN27  THE FIRST REPORTED CASE IN WHICH THE CLAIM OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION WAS ALLOWED IN A CONGRESSIONAL INQUIRY
PROCEEDING WAS UNITED STATES V. YUKIO ABE, 95 F. SUPP. 991.  PRIOR
THERETO, SEVERAL STATE COURTS HAD HELD THAT LEGISLATIVE INVESTIGATIONS
WERE SUBJECT TO THE WITNESS' PRIVILEGE NOT TO ACCUSE HIMSELF UNDER
STATE CONSTITUTIONS.  EMERY'S CASE, 107 MASS. 172, DECIDED IN 1871 IS
THE EARLIEST.  SEE ALSO EX PARTE JOHNSON, 187 S.C. 1, 196 S.W. 164. 

FN28  E.G., EXCERPTS FROM HEARINGS BEFORE THE HOUSE OF
REPRESENTATIVES COMMITTEE ON UN-AMERICAN ACTIVITIES - REGARDING
INVESTIGATION OF COMMUNIST ACTIVITIES IN CONNECTION WITH THE ATOM BOMB,
80TH CONG., 2D SESS. 5; N.Y. HERALD TRIBUNE, SEPT. 6, 1948, P. 3, COL.
6-7. 

FN29  APPROPRIATENESS OF THE PRIVILEGE HAS BEEN UPHELD WITHOUT
QUESTION IN MANY CASES ARISING OUT OF CONGRESSIONAL INQUIRY.  SEE,
E.G., STARKOVICH V. UNITED STATES, 231 F.2D 411; AIUPPA V. UNITED
STATES, 201 F.2D 287; UNITED STATES V. COSTELLO, 198 F.2D 200; MARCELLO
V. UNITED STATES, 196 F.2D 437; UNITED STATES V. DI CARLO, 102 F. SUPP.
597; UNITED STATES V. LICAVOLI, 102 F. SUPP. 607; UNITED STATES V.
COHEN, 101 F. SUPP. 906; UNITED STATES V. JAFFE, 98 F. SUPP. 191;
UNITED STATES V. FITZPATRICK, 96 F. SUPP. 491; UNITED STATES V. RALEY,
96 F. SUPP. 495; UNITED STATES V. YUKIO ABE, 95 F. SUPP. 991.    FN30
THE FIRST REPORTED DECISION, MADE IN 1947, GREW OUT OF THE INQUIRY OF
THE UN-AMERICAN ACTIVITIES COMMITTEE INTO CERTAIN ORGANIZATIONS
SUSPECTED OF SUBVERSIVE ACTIONS.  SUBPOENAS DUCES TECUM HAD BEEN ISSUED
CALLING FOR THE CORRESPONDENCE AND OTHER RECORDS OF THESE
ORGANIZATIONS.  REFUSALS TO COMPLY WERE FOLLOWED BY PROSECUTIONS UNDER
2 U.S.C. SEC. 192.  THE DISTRICT COURT DENIED MOTIONS TO DISMISS THE
INDICTMENTS IN UNITED STATES V. BRYAN, 72 F. SUPP. 58.  THE DECISION
WITH RESPECT TO THE FIRST AMENDMENT WAS AFFIRMED IN BARSKY V. UNITED
STATES, 167 F.2D 241. 

FN31  SEE UNITED STATES RUMELY, 345 U.S. 41, 43-44; LAWSON V. UNITED
STATES, 176 F.2D 49, 51-52; BARSKY V. UNITED STATES, 167 F.2D 241, 244
250; UNITED STATES V. JOSEPHSON, 165 F.2D 82, 90-92. 

FN32  IN A REPORT TO THE HOUSE, THE COMMITTEE DECLARED: 

"WHILE CONGRESS DOES NOT HAVE THE POWER TO DENY TO CITIZENS THE RIGHT
TO BELIEVE IN, TEACH, OR ADVOCATE, COMMUNISM, FASCISM, AND NAZIISM, IT
DOES HAVE THE RIGHT TO FOCUS THE SPOTLIGHT OF PUBLICITY UPON THEIR
ACTIVITIES  ...  ."  H.R. REP. NO. 2, 76TH CONG., 1ST SESS. 13. 

A YEAR LATER, THE COMMITTEE REPORTED THAT "  ...  INVESTIGATION TO
INFORM THE AMERICAN PEOPLE  ...  IS THE REAL PURPOSE OF THE HOUSE
COMMITTEE."  H.R. REP. NO. 1476, 76TH CONG., 3D SESS. 1-2. 

A PAMPHLET ISSUED BY THE COMMITTEE IN 1951 STATED THAT: 

"EXPOSURE IN A SYSTEMATIC WAY BEGAN WITH THE FORMATION OF THE HOUSE
COMMITTEE ON UN-AMERICAN ACTIVITIES, MAY 26, 1938."  THE COMMITTEE
BELIEVED ITSELF COMMANDED "  ...  TO EXPOSE PEOPLE AND ORGANIZATIONS
ATTEMPTING TO DESTROY THIS COUNTRY.  THAT IS STILL ITS JOB AND TO THAT
JOB IT STICKS."   100 THINGS YOU SHOULD KNOW ABOUT COMMUNISM, H.R. DOC.
NO. 136, 82D CONG., 1ST SESS. 19, 67. 

IN ITS ANNUAL REPORTS, THE COMMITTEE HAD DEVOTED A LARGE PART OF ITS
INFORMATION TO A PUBLIC LISTING OF NAMES ALONG WITH A SUMMARY OF THEIR
ACTIVITIES.  "  ...  THE COMMITTEE FEELS THAT THE CONGRESS AND THE
AMERICAN PEOPLE WILL HAVE A MUCH CLEARER AND FULLER PICTURE OF THE
SUCCESS AND SCOPE OF COMMUNISM IN THE UNITED STATES BY HAVING SET FORTH
THE NAMES AND, WHERE POSSIBLE, THE POSITIONS OCCUPIED BY INDIVIDUALS
WHO HAVE BEEN IDENTIFIED AS COMMUNISTS, OR FORMER COMMUNISTS, DURING
THE PAST YEAR."  H.R. REP. NO. 2516, 82D CONG., 2D SESS. 6-7. 

FN33  WE ARE NOT CONCERNED WITH THE POWER OF THE CONGRESS TO INQUIRY
INTO AND PUBLICIZE CORRUPTION, MALADMINISTRATION OR INEFFICIENCY IN
AGENCIES OF THE GOVERNMENT.  THAT WAS THE ONLY KIND OF ACTIVITY
DESCRIBED BY WOODROW WILSON IN CONGRESSIONAL GOVERNMENT WHEN HE WROTE:
"THE INFORMING FUNCTION OF CONGRESS SHOULD BE PREFERRED EVEN TO ITS
LEGISLATIVE FUNCTION."  ID., AT 303.  FORM THE EARLIEST TIMES IN ITS
HISTORY, THE CONGRESS HAS ASSIDUOUSLY PERFORMED AN "INFORMING FUNCTION"
OF THIS NATURE.  SEE LANDIS, CONSTITUTIONAL LIMITATIONS ON THE
CONGRESSIONAL POWER OF INVESTIGATION, 40 HARV. L. REV. 153, 168-194. 

FN34  COMPARE THE TREATMENT OF THIS POINT IN BARENBLATT V. UNITED
STATES, 240 F.2D 875, 880-881; MORFORD V. UNITED STATES, 176 F.2D 54,
58; EISLER V. UNITED STATES, 170 F.2D 273, 278-279; UNITED STATES V.
JOSEPHSON, 165 F.2D 82, 89; AND UNITED STATES V. KAMIN, 136 F. SUPP.
791, 800-801. 

FN35  H. RES. 282, 75TH CONG., 3D SESS., 83 CONG. REC. 7568, 7586. 

FN36  H. RES. 5, 79TH CONG., 1ST SESS., 91 CONG. REC. 10, 15. 

FN37  H. RES. 5, 83D CONG., 1ST SESS., 99 CONG. REC. 18, 24. 

FN38  FOR CONTRASTING VIEWS, SEE MORFORD V. UNITED STATES, 176 F.2D
54, 57-58, AND BARSKY V. UNITED STATES, 167 F.2D 241, 247-248. 

FN39  THE LANGUAGE OF THE RESOLUTION WAS OBVIOUSLY TAKEN FROM THE
DICKSTEIN RESOLUTION, WHICH ESTABLISHED THE MCCORMACK COMMITTEE IN 1934
TO STUDY NAZI AND OTHER PROPAGANDA SENT INTO THE UNITED STATES FROM
FOREIGN COUNTRIES.  H. RES. 198, 73D CONG., 2D SESS., 78 CONG. REC.
4934, 4949. 

FN40  IN 1947, JUDGE CHARLES E. CLARK, NOW CHIEF JUSTICE OF THE COURT
OF APPEALS FOR THE SECOND CIRCUIT, WROTE ABOUT THE COMMITTEE: 

"SUFFICE IT TO SAY HERE THAT ITS RANGE OF ACTIVITY HAS COVERED ALL
VARIETIES OF ORGANIZATIONS, INCLUDING THE AMERICAN CIVIL LIBERTIES
UNION, THE C.I.O., THE NATIONAL CATHOLIC WELFARE CONFERENCE, THE FARMER
LABOR PARTY, THE FEDERAL THEATRE PROJECT, CONSUMERS' ORGANIZATIONS,
VARIOUS PUBLICATIONS FROM THE MAGAZINE 'TIME' TO THE 'DAILY WORKER,'
AND VARYING FORMS AND TYPES OF INDUSTRY, OF WHICH THE RECENT
INVESTIGATION OF THE MOVIE INDUSTRY IS FRESH IN THE PUBLIC MIND.  WHILE
IT HAS AVOIDED SPECIFIC DEFINITION OF WHAT IT IS SEEKING, IT HAS
REPEATEDLY INQUIRED AS TO MEMBERSHIP IN THE COMMUNIST PARTY AND IN
OTHER ORGANIZATIONS WHICH IT REGARDS AS COMMUNIST CONTROLLED OR
AFFECTED."  UNITED STATES V. JOSEPHSON, 165 F.2D 82, 95 (DISSENT).  SEE
ALSO THE DISSENTING OPINION OF JUDGE HENRY W. EDGERTON, NOW CHIEF JUDGE
OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, IN BARSKY
V. UNITED STATES, 83 U.S. APP. D.C. 127, AT 143, 167 F.2D 241, AT 257. 

FN41  H. RES. 26, 76TH CONG., 1ST SESS., 84 CONG. REC. 1098, 1127
1128; H. RES. 321, 76TH CONG., 3D SESS., 86 CONG. REC. 572, 604-605; H.
RES. 90, 77TH CONG., 1ST SESS, 87 CONG. REC. 886, 899; H. RES. 420,
77TH CONG., 2D SESS., 88 CONG. REC. 2282, 2297; H. RES. 65, 78TH CONG.,
1ST SESS., 89 CONG. REC. 795, 809-810. 

FN42  91 CONG. REC. 10, 15. 

FN43  60 STAT. 812, 828. 

FN44  H. RES. 5, 80TH CONG., 1ST SESS., 93 CONG. REC. 38; H. RES. 5,
81ST CONG., 1ST SESS., 95 CONG. REC. 10; H. RES. 7, 82D CONG., 1ST
SESS., 97 CONG. REC. 17, 19; H. RES.  5, 83D CONG., 1ST SESS., 99 CONG.
REC. 15; H. RES. 5, 84TH CONG., 1ST SESS., 101 CONG.  REC. 11. 

FN45  THIS STATUTE WAS PASSED IN 1857 AS A DIRECT RESULT OF AN
INCIDENT WHICH CAUSED THE CONGRESS TO FEEL THAT IT NEEDED MORE SEVERE
SANCTIONS TO COMPEL DISCLOSURES THAN WERE AVAILABLE IN THE HISTORICAL
PROCEDURE OF SUMMONING THE RECALCITRANT WITNESS BEFORE THE BAR OF
EITHER HOUSE OF CONGRESS AND ORDERING HIM HELD IN CUSTODY UNTIL HE
AGREED TO TESTIFY.  SUCH IMPRISONMENT IS VALID ONLY SO LONG AS THE
HOUSE REMAINS IN SESSION.  SEE ANDERSON V. DUNN, 6 WHEAT.  204, 231;
EBERLING, CONGRESSIONAL INVESTIGATIONS, 180-184. 

THE IMMEDIATE CAUSE FOR ADOPTION OF THE STATUTE WAS AN ACCUSATION BY
ONE J.W. SIMONTON, A NEWSPAPERMAN, THAT CERTAIN UNNAMED CONGRESSMEN
WERE SOLICITING BRIBES ON A MATTER PENDING BEFORE THE LEGISLATURE. 
SIMONTON WAS CITED BEFORE THE HOUSE OF REPRESENTATIVES AND REFUSED TO
DIVULGE THE NAMES OF THOSE IMPLICATED.  IN THE COURSE OF THAT EPISODE,
THE FORERUNNER OF 2 U.S.C. SEC. 192 WAS PASSED IN ORDER "  ...  TO
INFLICT A GREATER PUNISHMENT THAN THE COMMITTEE BELIEVE THE HOUSE
POSSESSES THE POWER TO INFLICT."  CONG.  GLOBE, 34TH CONG., 3D SESS.
405.  SEE ALSO ID., AT 403-413, 426-433, 434-445.  THEREAFTER, HAVING
BEEN IN CUSTODY MORE THAN TWO WEEKS, SIMONTON TESTIFIED TO THE
SATISFACTION OF THE COMMITTEE AND WAS DISCHARGED.  3 HINDS' PRECEDENTS
SEC. 1669. 

FN46  UNITED STATES V. HARRISS, 347 U.S. 612; UNITED STATES V.
CARDIFF, 344 U.S. 174; WINTERS V. NEW YORK, 333 U.S. 507; MUSSER V.
UTAH 333 U.S. 95; LANZETTA V. NEW JERSEY, 306 U.S. 451. 

FN47  UNITED STATES V. ORMAN, 207 F.2D 148; BOWERS V. UNITED STATES,
202 F.2D 447; UNITED STATES V. KAMIN, 135 F. SUPP. 382, 136 F. SUPP.
791. 

FN48  UNITED STATES V. JOSEPHSON, 165 F.2D 82, 88. 

FN49  "THE COMMITTEE WILL BE IN ORDER.  I SHOULD LIKE TO MAKE AN
OPENING STATEMENT REGARDING OUR WORK HERE IN THE CITY OF CHICAGO.  THE
CONGRESS OF THE UNITED STATES, REALIZING THAT THERE ARE INDIVIDUALS AND
ELEMENTS IN THIS COUNTRY WHOSE AIM IT IS TO SUBVERT OUR CONSTITUTIONAL
FORM OF GOVERNMENT, HAS ESTABLISHED THE HOUSE COMMITTEE ON UN-AMERICAN
ACTIVITIES.  IN ESTABLISHING THIS COMMITTEE, THE CONGRESS HAS DIRECTED
THAT WE MUST INVESTIGATE AND HOLD HEARINGS, EITHER BY THE FULL
COMMITTEE OR BY A SUBCOMMITTEE, TO ASCERTAIN THE EXTENT AND SUCCESS OF
SUBVERSIVE ACTIVITES DIRECTED AGAINST THESE UNITED STATES. 

"ON THE BASIS OF THESE INVESTIGATIONS AND HEARINGS, THE COMMITTEE ON
UN-AMERICAN ACTIVITIES REPORTS ITS FINDINGS TO THE CONGRESS AND MAKES
RECOMMENDATIONS FROM THESE INVESTIGATIONS AND HEARINGS FOR NEW
LEGISLATION.  AS A RESULT OF THIS COMMITTEE'S INVESTIGATIONS AND
HEARINGS, THE INTERNAL SECURITY ACT OF 1950 WAS ENACTED. 

"OVER THE PAST FIFTEEN YEARS THIS COMMITTEE HAS BEEN IN EXISTENCE,
BOTH AS A SPECIAL AND PERMANENT COMMITTEE, IT HAS MADE FORTY-SEVEN
RECOMMENDATIONS TO THE CONGRESS TO INSURE PROPER SECURITY AGAINST
SUBVERSION.  I AM PROUD TO BE ABLE TO STATE THAT OF THESE FORTY-SEVEN
RECOMMENDATIONS, ALL BUT EIGHT HAVE BEEN ACTED UPON IN ONE WAY OR
ANOTHER.  AMONG THESE RECOMMENDATIONS WHICH THE CONGRESS HAS NOT ACTED
UPON ARE THOSE WHICH PROVIDE THAT WITNESSES APPEARING BEFORE
CONGRESSIONAL COMMITTEES BE GRANTED IMMUNITY FROM PROSECUTION ON THE
INFORMATION THEY FURNISH. 

"THE COMMITTEE HAS ALSO RECOMMENDED THAT EVIDENCE SECURED FROM
CONFIDENTIAL DEVICES BE ADMISSIBLE IN CASES INVOLVING THE NATIONAL
SECURITY.  THE EXECUTIVE BRANCH OF GOVERNMENT HAS NOW ALSO ASKED THE
CONGRESS FOR SUCH LEGISLATION.  A STUDY IS NOW BEING MADE OF VARIOUS
BILLS DEALING WITH THIS MATTER. 

"THE CONGRESS HAS ALSO REFERRED TO THE HOUSE COMMITTEE ON UN-AMERICAN
ACTIVITIES A BILL WHICH WOULD AMEND THE NATIONAL SECURITY ACT OF 1950. 
THIS BILL, IF ENACTED INTO LAW, WOULD PROVIDE THAT THE SUBVERSIVE
ACTIVITIES CONTROL BOARD SHOULD, AFTER SUITABLE HEARINGS AND
PROCEDURES, BE EMPOWERED TO FIND IF CERTAIN LABOR ORGANIZATIONS ARE IN
FACT COMMUNIST-CONTROLLED ACTION GROUPS.  FOLLOWING THIS ACTION, SUCH
LABOR GROUPS WOULD NOT HAVE AVAILABLE THE USE OF THE NATIONAL LABOR
RELATIONS BOARD AS THEY NOW HAVE UNDER THE PROVISIONS OF THE LABOR
MANAGEMENT RELATIONS  ACT OF 1947. 

"DURING THE FIRST SESSION OF THIS 83RD CONGRESS, THE HOUSE UN
AMERICAN ACTIVITIES COMMITTEE HAS HELD HEARINGS IN LOS ANGELES AND SAN
FRANCISCO, CALIFORNIA; ALBANY AND NEW YORK CITY, NEW YORK;
PHILADELPHIA, PENNSYLVANIA, AND COLUMBUS, OHIO.  WE ARE HERE IN
CHICAGO, ILLINOIS, REALIZING THAT THIS IS THE CENTER OF THE GREAT
MIDWESTERN AREA OF THE UNITED STATES. 

"IT CANNOT BE SAID THAT SUBVERSIVE INFILTRATION HAS HAD A GREATER NOR
A LESSER SUCCESS IN INFILTRATING THIS IMPORTANT AREA.  THE HEARINGS
TODAY ARE THE CULMINATION OF AN INVESTIGATION THAT HAS BEEN CONDUCTED
BY THE COMMITTEE'S COMPETENT STAFF AND IS A PART OF THE COMMITTEE'S
INTENTION FOR HOLDING HEARINGS IN VARIOUS PARTS OF THE COUNTRY. 

"THE COMMITTEE HAS FOUND THAT BY CONDUCTING ITS INVESTIGATIONS AND
HOLDING HEARINGS IN VARIOUS PARTS OF THE COUNTRY, IT HAS BEEN ABLE TO
SECURE A FULLER AND MORE COMPREHENSIVE PICTURE OF SUBVERSIVE EFFORTS
THROUGHOUT OUR NATION.  EVERY WITNESS WHO HAS BEEN SUBPOENAED TO APPEAR
BEFORE THE COMMITTEE HERE IN CHICAGO, AS IN ALL HEARINGS CONDUCTED BY
THIS COMMITTEE, IS KNOWN TO POSSESS INFORMATION WHICH WILL ASSIST THE
COMMITTEE IN PERFORMING ITS DIRECTED FUNCTION TO THE CONGRESS OF THE
UNITED STATES."  (R. 43-44; HEARING, SUPRA, NOTE 2, PART 1, AT 4165
4166.) 

FN50  THE COMMITTEE CONVENED IN EXECUTIVE SESSION ON JANUARY 22,
1953, AND ADOPTED THE FOLLOWING RESOLUTION: 

"BE IT RESOLVED, THAT THE CHAIRMAN SHALL HAVE AUTHORITY FROM TIME TO
TIME TO APPOINT SUBCOMMITTEES COMPOSED OF ONE OR MORE MEMBERS OF THE
COMMITTEE ON UN-AMERICAN ACTIVITIES FOR THE PURPOSE OF PERFORMING ANY
AND ALL ACTS WHICH THE COMMITTEE AS A WHOLE IS AUTHORIZED TO DO."  (R.
91.) 

FN51  THE ORIGINAL RESOLUTION AUTHORIZING SUBCOMMITTEES WAS AMENDED
ON MARCH 3, 1954, TO REQUIRE ANY SUBCOMMITTEE TO CONSIST OF AT LEAST
THREE MEMBERS, TWO OF WHOM COULD CONSTITUTE A QUORUM.  (R. 92.) 

PETITIONER APPEARED BEFORE A SUBCOMMITTEE COMPOSED AT THE OUTSET OF
FOUR MEMBERS.  AFTER A RECESS IN THE COURSE OF HIS TESTIMONY, ONLY TWO
COMMITTEEMEN WERE PRESENT.  IT WAS DURING THIS LATTER PHASE OF HIS
TESTIMONY THAT PETITIONER REFUSED TO ANSWER THE QUESTIONS INVOLVED IN
THIS CASE. 

FN52  THE BILL PENDING AT THE TIME OF THE CHAIRMAN'S REMARKS, MARCH
15, 1954, AND WHEN PETITIONER TESTIFIED A MONTH LATER WAS H.R. 7487,
100 CONG. REC. 763.  NO ACTION WAS EVER TAKEN ON THIS PROPOSAL. 
INTRODUCED BY REPRESENTATIVE VELDE, IT WOULD HAVE WITHDRAWN THE RIGHTS,
PRIVILEGES AND BENEFITS UNDER THE NATIONAL LABOR RELATIONS ACT OF ANY
LABOR ORGANIZATION WHICH WAS SUBSTANTIALLY DIRECTED, DOMINATED OR
CONTROLLED BY PERSONS WHO WERE OR EVER HAD BEEN MEMBERS OF A "COMMUNIST
ACTION ORGANIZATION," AS THAT PHRASE IS USED IN THE INTERNAL SECURITY
ACT. 

ON JULY 6, 1954, AFTER EXTENSIVE HEARINGS, THE SENATE JUDICIARY
COMMITTEE REPORTED FAVORABLY ON S. 3706, A BILL DRAFTED BY THAT
COMMITTEE TO AMEND THE INTERNAL SECURITY ACT.  TWO DAYS LATER,
REPRESENTATIVE VELDE INTRODUCED H.R. 9838, WHICH WAS IDENTICAL TO S.
3706.  THESE BILLS EVENTUALLY BECAME LAW.  68 STAT. 775.  THE ACT
CREATED THE CONCEPT OF A "COMMUNIST INFILTRATED ORGANIZATION," AND PART
OF ITS PROVISIONS DECLARED THAT A LABOR UNION THAT CAME WITHIN THAT
DEFINITION SHOULD BE BARRED FROM THE RIGHTS, PRIVILEGES AND BENEFITS OF
THE NATIONAL LABOR RELATIONS ACT.  THE SAME SANCTIONS WERE APPLIED TO A
LABOR GROUP THAT WAS A "COMMUNIST-ACTION" OR "COMMUNIST-FRONT
ORGANIZATION" UNDER THE ORIGINAL INTERNAL SECURITY ACT. 

FN53  THE FIRST FOUR WITNESSES TESTIFIED PRINCIPALLY ABOUT THE
COMMUNIST PARTY ACTIVITIES OF AN EMPLOYEE OF THE NATIONAL CANCER
INSTITUTE OF THE UNITED STATES PUBLIC HEALTH SERVICE.  A CHICAGO
ATTORNEY RELATED TO THE SUBCOMMITTEE HIS EXPERIENCES WITH COMMUNIST
YOUTH ORGANIZATIONS DURING HIS COLLEGE DAYS.  THE SIXTH WITNESS TOLD OF
HER WORK AS A DISTRICT ORGANIZER FOR THE COMMUNIST PARTY IN MONTANA,
WYOMING, IDAHO AND THE DAKOTAS DURING THE 1930'S.    FN54  "THIS
COMMITTEE IS SET UP BY THE HOUSE OF REPRESENTATIVES TO INVESTIGATE
SUBVERSION AND SUBVERSIVE PROPAGANDA AND TO REPORT TO THE HOUSE OF
REPRESENTATIVES FOR THE PURPOSE OF REMEDIAL LEGISATION. 

"THE HOUSE OF REPRESENTATIVES HAS BY A VERY CLEAR MAJORITY, A VERY
LARGE MAJORITY, DIRECTED US TO ENGAGE IN THAT TYPE OF WORK, AND SO WE
DO, AS A COMMITTEE OF THE HOUSE OF REPRESENTATIVES, HAVE THE AUTHORITY,
THE JURISDICTION, TO ASK YOU CONCERNING YOUR ACTIVITIES IN THE
COMMUNIST PARTY, CONCERNING YOUR KNOWLEDGE OF ANY OTHER PERSONS WHO ARE
MEMBERS OF THE COMMUNIST PARTY OR WHO HAVE BEEN MEMBERS OF THE
COMMUNIST PARTY, AND SO, MR. WATKINS, YOU ARE DIRECTED TO ANSWER THE
QUESTION PROPOUNDED TO YOU BY COUNSEL."  (R. 86; HEARINGS, SUPRA, NOTE
2, PART 3, AT 4275-4276.) 

FN55  CF. UNITED STATES V. KAMIN, 136 F. SUPP. 791, 800. 

MR. JUSTICE BURTON AND MR. JUSTICE WHITTAKER TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I DEEM IT IMPORTANT TO STATE WHAT I UNDERSTAND TO BE THE COURT'S
HOLDING.  AGREEING WITH ITS HOLDING, I JOIN ITS OPINION. 

THE POWER OF THE CONGRESS TO PUNISH FOR CONTEMPT OF ITS AUTHORITY IS,
AS THE COURT POINTS OUT, ROOTED IN HISTORY.  IT HAS BEEN ACKNOWLEDGED
BY THIS COURT SINCE 1821.  ANDERSON V. DUNN, 6 WHEAT.  204.  UNTIL
1857, CONGRESS WAS CONTENT TO PUNISH FOR CONTEMPT THROUGH ITS OWN
PROCESS.  BY THE ACT OF JANUARY 24, 1957, 11 STAT. 155, AS AMENDED BY
THE ACT OF JANUARY 24, 1862, 12 STAT. 333, CONGRESS PROVIDED THAT, "IN
ADDITION TO THE PAINS AND PENALTIES NOW EXISTING" (REFERRING OF COURSE
TO THE POWER OF CONGRESS ITSELF TO PUNISH FOR CONTEMPT), "CONTUMACY IN
A WITNESS CALLED TO TESTIFY IN A MATTER PROPERLY UNDER CONSIDERATION BY
EITHER HOUSE, AND DELIBERATELY REFUSING TO ANSWER QUESTIONS PERTINENT
THERETO, SHALL BE A MISDEMEANOR AGAINST THE UNITED STATES."  IN RE
CHAPMAN, 166 U.S. 661, 672.  THIS LEGISLATION IS NOW 2 U.S.C. SEC.
192.  BY THUS MAKING THE FEDERAL JUDICIARY THE AFFIRMATIVE AGENCY FOR
ENFORCING THE AUTHORITY THAT UNDERLIES THE CONGRESSIONAL POWER TO
PUNISH FOR CONTEMPT, CONGRESS NECESSARILY BRINGS INTO PLAY THE SPECIFIC
PROVISIONS OF THE CONSTITUTION RELATING TO THE PROSECUTION OF OFFENSES
AND THOSE IMPLIED RESTRICTIONS UNDER WHICH COURTS FUNCTION. 

TO TURN TO THE IMMEDIATE PROBLEM BEFORE US, THE SCOPE OF INQUIRY THAT
A COMMITTEE IS AUTHORIZED TO PURSUE MUST BE DEFINED WITH SUFFICIENTLY
UNAMBIGUOUS CLARITY TO SAFEGUARD A WITNESS FROM THE HAZARDS OF
VAGUENESS IN THE ENFORCEMENT OF THE CRIMINAL PROCESS AGAINST WHICH THE
DUE PROCESS CLAUSE PROTECTS.  THE QUESTIONS MUST BE PUT WITH RELEVANCE
AND DEFINITENESS SUFFICIENT TO ENABLE THE WITNESS TO KNOW WHETHER HIS
REFUSAL TO ANSWER MAY LEAD TO CONVICTION FOR CRIMINAL CONTEMPT AND TO
ENABLE BOTH THE TRIAL AND THE APPELLATE COURTS READILY TO DETERMINE
WHETHER THE PARTICULAR CIRCUMSTANCES JUSTIFY A FINDING OF GUILT. 

WHILE IMPLIED AUTHORITY FOR THE QUESTIONING BY THE COMMITTEE,
SWEEPING AS WAS ITS INQUIRY, MAY BE SQUEEZED OUT OF THE REPEATED
ACQUIESCENCE BY CONGRESS IN THE COMMITTEE'S INQUIRIES, THE BASIS FOR
DETERMINING PETITIONER'S GUILT IS NOT THEREBY LAID.  PROSECUTION FOR
CONTEMPT OF CONGRESS PRESUPPOSES AN ADEQUATE OPPORTUNITY FOR THE
DEFENDANT TO HAVE AWARENESS OF THE PERTINENCY OF THE INFORMATION THAT
HE HAS DENIED TO CONGRESS.  AND THE BASIS OF SUCH AWARENESS MUST BE
CONTEMPORANEOUS WITH THE WITNESS' REFUSAL TO ANSWER AND NOT AT THE
TRIAL FOR IT.  ACCORDINGLY, THE ACTUAL SCOPE OF THE INQUIRY THAT THE
COMMITTEE WAS AUTHORIZED TO CONDUCT AND THE RELEVANCE OF THE QUESTIONS
TO THAT INQUIRY MUST BE SHOWN TO HAVE BEEN LUMINOUS AT THE TIME WHEN
ASKED AND NOT LEFT, AT BEST, IN CLOUDINESS.  THE CIRCUMSTANCES OF THIS
CASE WERE WANTING IN THESE ESSENTIALS. 

MR. JUSTICE CLARK, DISSENTING. 

AS I SEE IT THE CHIEF FAULT IN THE MAJORITY OPINION IS ITS
MISCHIEVOUS CURBING OF THE INFORMING FUNCTION OF THE CONGRESS.  WHILE I
AM NOT VERSED IN ITS PROCEDURES, MY EXPERIENCE IN THE EXECUTIVE BRANCH
OF THE GOVERNMENT LEADS ME TO BELIEVE THAT THE REQUIREMENTS LAID DOWN
IN THE OPINION FOR THE OPERATION OF THE COMMITTEE SYSTEM OF INQUIRY ARE
BOTH UNNECESSARY AND UNWORKABLE.  IT IS MY PURPOSE TO FIRST DISCUSS
THIS PHASE OF THE OPINION AND THEN RECORD MY VIEWS ON THE MERITS OF
WATKINS' CASE. 

   I. 

IT MAY BE THAT AT TIMES THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES
HAS, AS THE COURT SAYS, "CONCEIVED OF ITS TASK IN THE GRAND VIEW OF ITS
NAME."  AND, PERHAPS, AS THE COURT INDICATES, THE RULES OF CONDUCT
PLACED UPON THE COMMITTEE BY THE HOUSE ADMIT OF INDIVIDUAL ABUSE AND
UNFAIRNESS.  BUT THAT IS NONE OF OUR AFFAIR.  SO LONG AS THE OBJECT OF
A LEGISLATIVE INQUIRY IS LEGITIMATE AND THE QUESTIONS PROPOUNDED ARE
PERTINENT THERETO, IT IS NOT FOR THE COURTS TO INTERFERE WITH THE
COMMITTEE SYSTEM OF INQUIRY.  TO HOLD OTHERWISE WOULD BE AN
INFRINGEMENT ON THE POWER GIVEN TO CONGRESS TO INFORM ITSELF, AND THUS
A TRESPASS UPON THE FUNDAMENTAL AMERICAN PRINCIPLE OF SEPARATION OF
POWERS.  THE MAJORITY HAS SUBSTITUTED THE JUDICIARY AS THE GRAND
INQUISITOR AND SUPERVISOR OF CONGRESSIONAL INVESTIGATIONS.  IT HAS
NEVER BEEN SO.

   II. 

LEGISLATIVE COMMITTEES TO INQUIRE INTO FACTS OR CONDITIONS FOR
ASSURANCE OF THE PUBLIC WELFARE OR TO DETERMINE THE NEED FOR
LEGISLATIVE ACTION HAVE GROWN IN IMPORTANCE WITH THE COMPLEXITY OF
GOVERNMENT.  THE INVESTIGATION THAT GAVE RISE TO THIS PROSECUTION IS OF
THE LATTER TYPE.  SINCE MANY MATTERS REQUIRING STATUTORY ACTION LIE IN
THE DOMAIN OF THE SPECIALIST OR ARE UNKNOWN WITHOUT TESTIMONY FROM
INFORMED WITNESSES, THE NEED FOR INFORMATION HAS BROUGHT ABOUT
LEGISLATIVE INQUIRIES THAT HAVE USED THE COMPULSION OF THE SUBPOENA TO
LAY BARE NEEDED FACTS AND A STATUTE, 2 U.S.C. SEC. 192 HERE INVOLVED,
TO PUNISH RECALCITRANT WITNESSES.  THE PROPRIETY OF INVESTIGATIONS HAS
LONG BEEN RECOGNIZED AND RARELY CURBED BY THE COURTS, THOUGH
CONSTITUTIONAL LIMITATIONS ON THE INVESTIGATORY POWERS ARE ADMITTED. 
(FN1)  THE USE OF LEGISLATIVE COMMITTEES TO SECURE INFORMATION FOLLOWS
THE EXAMPLE OF THE PEOPLE FROM WHOM OUR LEGISLATIVE SYSTEM IS DERIVED. 
THE BRITISH METHOD HAS VARIATIONS FROM THAT OF THE UNITED STATES BUT
FUNDAMENTALLY SERVES THE SAME PURPOSE - THE ENLIGHTENMENT OF PARLIAMENT
FOR THE BETTER PERFORMANCE OF ITS DUTIES.  THERE ARE STANDING
COMMITTEES TO CARRY ON THE ROUTINE WORK, ROYAL COMMISSIONS TO GRAPPLE
WITH IMPORTANT SOCIAL OR ECONOMIC PROBLEMS, AND SPECIAL TRIBUNALS OF
INQUIRY FOR SOME ALLEGED OFFENSE IN GOVERNMENT.  (FN2)  OUR CONGRESS
HAS SINCE ITS BEGINNING USED THE COMMITTEE SYSTEM TO INFORM ITSELF.  IT
HAS BEEN ESTIMATED THAT OVER 600 INVESTIGATIONS HAVE BEEN CONDUCTED
SINCE THE FIRST CONGRESS.  THEY ARE "A NECESSARY AND APPROPRIATE
ATTRIBUTE OF THE POWER TO LEGISLATE  ...  ."  MCGRAIN V. DAUGHERTY, 273
U.S. 135, 175 (1927). 

THE COURT INDICATES THAT IN THIS CASE THE SOURCE OF THE TROUBLE LIES
IN THE "TREMENDOUS LATITUDE" GIVEN THE UN-AMERICAN ACTIVITES COMMITTEE
IN THE LEGISLATIVE REORGANIZATION ACT.  (FN3)  IT FINDS THAT THE
COMMITTEE "IS ALLOWED, IN ESSENCE, TO DEFINE ITS OWN AUTHORITY, AND TO
CHOOSE THE DIRECTION AND FOCUS OF ITS ACTIVITIES."  THIS, OF COURSE, IS
LARGELY TRUE OF ALL COMMITTEES WITHIN THEIR RESPECTIVE SPHERES.  AND,
WHILE IT IS NECESSARY THAT THE "CHARTER," AS THE OPINION CALLS THE
ENABLING RESOLUTION, "SPELL OUT ITS JURISDICTION AND PURPOSE," THAT
MUST NECESSARILY BE IN MORE OR LESS GENERAL TERMS.  AN EXAMINATION OF
THE ENABLING RESOLUTIONS OF OTHER COMMITTEES REVEALS THE EXTENT TO
WHICH THIS IS TRUE. 

PERMANENT OR STANDING COMMITTEES OF BOTH HOUSES HAVE BEEN GIVEN POWER
IN EXCEEDINGLY BROAD TERMS.  FOR EXAMPLE, THE COMMITTEES ON THE ARMED
SERVICES HAVE JURISDICTION OVER "COMMON DEFENSE GENERALLY"; (FN4) THE
COMMITTEES ON INTERSTATE AND FOREIGN COMMERCE HAVE JURISDICTION OVER
"INTERSTATE AND FOREIGN COMMERCE GENERALLY"; (FN5) AND THE COMMITTEES
ON APPROPRIATION HAVE JURISDICTION OVER "APPROPRIATION OF THE REVENUE
FOR THE SUPPORT OF THE GOVERNMENT."  (FN6)  PERHAPS EVEN MORE IMPORTANT
FOR PURPOSES OF COMPARISON ARE THE BROAD AUTHORIZATIONS GIVEN TO SELECT
OR SPECIAL COMMITTEES ESTABLISHED BY THE CONGRESS FROM TIME TO TIME. 
SUCH COMMITTEES HAVE BEEN "AUTHORIZED AND DIRECTED" TO MAKE FULL AND
COMPLETE STUDIES "OF WHETHER ORGANIZED CRIME UTILIZES THE FACILITIES OF
INTERSTATE COMMERCE OR OTHERWISE OPERATES IN INTERSTATE COMMERCE";
(FN7) "OF  ...  ALL LOBBYING ACTIVITIES INTENDED TO INFLUENCE,
ENCOURAGE, PROMOTE, OR RETARD LEGISLATION"; (FN8) "TO DETERMINE THE
EXTENT TO WHICH CURRENT LITERATURE  ...  CONTAINING IMMORAL, OR OBSCENE
...  MATTER, OR PLACING IMPROPER EMPHASIS ON CRIME  ...  ARE BEING
MADE AVAILABLE TO THE PEOPLE OF THE UNITED STATES  ... "; (FN9) AND "OF
THE EXTENT TO WHICH CRIMINAL OR OTHER IMPROPER PRACTICES  ...  ARE, OR
HAVE BEEN, ENGAGED IN THE FIELD OF LABOR-MANAGEMENT RELATIONS  ...  TO
THE DETRIMENT OF THE INTERESTS OF THE PUBLIC  ...  ."  (FN10)  SURELY
THESE AUTHORIZATIONS PERMIT THE COMMITTEES EVEN MORE "TREMENDOUS
LATITUDE" THAN THE "CHARTER" OF THE UN-AMERICAN ACTIVITIES COMMITTEE. 
YET NO ONE HAS SUGGESTED THAT THE POWERS GRANTED WERE TOO BROAD.  TO
RESTRAIN AND LIMIT THE BREADTH OF INVESTIGATIVE POWER OF THIS COMMITTEE
NECESSITATES THE SIMILAR HANDLING OF ALL OTHER COMMITTEES.  THE
RESULTING RESTRAINT IMPOSED ON THE COMMITTEE SYSTEM APPEARS TO CRIPPLE
THE SYSTEM BEYOND WORKABILITY. 

THE COURT FINDS FAULT WITH THE USE MADE OF COMPULSORY PROCESS, POWER
FOR THE USE OF WHICH IS GRANTED THE COMMITTEE IN THE REORGANIZATION
ACT.  WHILE THE COURT FINDS THAT THE CONGRESS IS FREE "TO DETERMINE THE
KINDS OF DATA" IT WISHES ITS COMMITTEES TO COLLECT, THIS HAS LED, THE
COURT SAYS, TO AN ENCROACHMENT ON INDIVIDUAL RIGHTS THROUGH THE ABUSE
OF PROCESS.  TO MY MIND THIS INDICATES A LACK OF UNDERSTANDING OF THE
PROBLEMS FACING SUCH COMMITTEES.  I AM SURE THAT THE COMMITTEES WOULD
WELCOME VOLUNTARY DISCLOSURE.  IT WOULD SIMPLIFY AND RELIEVE THEIR
BURDEN CONSIDERABLY IF THE PARTIES INVOLVED IN INVESTIGATIONS WOULD
COME FORWARD WITH A FRANK WILLINGNESS TO COOPERATE.  BUT EVERYDAY
EXPERIENCE SHOWS THIS JUST DOES NOT HAPPEN.  ONE NEEDS ONLY TO READ THE
NEWSPAPERS TO KNOW THAT THE CONGRESS COULD GATHER LITTLE "DATA" UNLESS
ITS COMMITTEES HAD, UNFETTERED, THE POWER OF SUBPOENA.  IN FACT,
WATKINS HIMSELF COULD NOT BE FOUND FOR APPEARANCE AT THE FIRST HEARING
AND IT WAS ONLY BY SUBPOENA THAT HE ATTENDED THE SECOND.  THE COURT
GENERALIZES ON THIS CRUCIAL PROBLEM SAYING "ADDED CARE ON THE PART OF
THE HOUSE AND THE SENATE IN AUTHORIZING THE USE OF COMPULSORY PROCESS
AND BY THEIR COMMITTEES IN EXERCISING THAT POWER WOULD SUFFICE."  IT
DOES NOT SAY HOW THIS "ADDED CARE" COULD BE APPLIED IN PRACTICE;
HOWEVER, THERE ARE MANY IMPLICATIONS SINCE THE OPINION WARNS THAT
"PROCEDURES WHICH PREVENT THE SEPARATION OF POWER FROM RESPONSIBILITY"
WOULD BE NECESSARY ALONG WITH "CONSTITUTIONAL REQUISITES OF FAIRNESS
FOR WITNESSES."  THE "POWER" AND "RESPONSIBILITY" FOR THE
INVESTIGATIONS ARE, OF COURSE, IN THE HOUSE WHERE THE PROCEEDING IS
INITIATED.  BUT THE INVESTIGATING JOB ITSELF CAN ONLY BE DONE THROUGH
THE USE OF COMMITTEES.  THEY MUST HAVE THE "POWER" TO FORCE COMPLIANCE
WITH THEIR REQUIREMENTS.  IF THE RULE REQUIRES THAT THIS POWER BE
RETAINED IN THE FULL HOUSE THEN INVESTIGATIONS WILL BE SO CUMBROUS THAT
THEIR CONDUCT WILL BE A PRACTICAL IMPOSSIBILITY.  AS TO "FAIRNESS FOR
WITNESSES" THERE IS NOTHING IN THE RECORD SHOWING ANY ABUSE OF
WATKINS.  IF ANYTHING, THE COMMITTEE WAS ABUSED BY HIS RECALCITRANCE. 

WHILE AMBIGUITY PREVENTS EXACTNESS (AND THERE IS "VICE IN VAGUENESS"
THE MAJORITY REMINDS), THE SWEEP OF THE OPINION SEEMS TO BE THAT
"PRELIMINARY CONTROL" OF THE COMMITTEE MUST BE EXERCISED.  THE COURT
SAYS A WITNESS' PROTECTED FREEDOMS CANNOT "BE PLACED IN DANGER IN THE
ABSENCE OF A CLEAR DETERMINATION BY THE HOUSE OR THE SENATE THAT A
PARTICULAR INQUIRY IS JUSTIFIED BY A SPECIFIC LEGISLATIVE NEED." 
FRANKLY I DO NOT SEE HOW ANY SUCH PROCEDURE AS "PRELIMINARY CONTROL"
CAN BE EFFECTED IN EITHER HOUSE OF THE CONGRESS.  WHAT WILL BE
CONTROLLED PRELIMINARILY?  THE PLANS OF THE INVESTIGATION, THE
NECESSITY OF CALLING CERTAIN WITNESSES, THE QUESTIONS TO BE ASKED, THE
DETAILS OF SUBPOENAS DUCES TECUM, ETC.?  AS IT IS NOW, CONGRESS IS HARD
PRESSED TO FIND SUFFICIENT TIME TO FULLY DEBATE AND ADOPT ALL NEEDED
LEGISLATION.  THE COURT ASSERTS THAT "THE CONGRESS HAS PRACTICALLY
ABANDONED ITS ORIGINAL PRACTICE OF UTILIZING THE COERCIVE SANCTION OF
CONTEMPT PROCEEDINGS AT THE BAR OF THE HOUSE."  THIS WAS TO BE
EXPECTED.  IT MAY BE THAT BACK IN THE TWENTIES AND THIRTIES CONGRESS
COULD SPARE THE TIME TO CONDUCT CONTEMPT HEARINGS, BUT THAT APPEARS
IMPOSSIBLE NOW.  THE COURT PLACES A GREATER BURDEN IN THE CONDUCT OF
CONTEMPT CASES BEFORE THE COURTS THAN IT DOES BEFORE "THE BAR OF THE
HOUSE."  IT CITES WITH APPROVAL CASES OF CONTEMPT TRIED BEFORE A HOUSE
OF THE CONGRESS WHERE NO MORE SAGEGUARDS WERE PRESENT THAN WE FIND
HERE.  IN CONTEMPT PROSECUTIONS BEFORE A COURT, HOWEVER, THE MAJORITY
PLACES AN INVESTIGATIVE HEARING ON A PAR WITH A CRIMINAL TRIAL,
REQUIRING THAT "KNOWLEDGE OF THE SUBJECT TO WHICH THE INTERROGATION IS
DEEMED PERTINENT  ...  MUST BE AVAILABLE TO THE WITNESS WITH THE SAME
DEGREE OF EXPLICITNESS AND CLARITY THAT THE DUE PROCESS CLAUSE REQUIRES
IN THE EXPRESSION OF ANY ELEMENT OF A CRIMINAL OFFENSE."  I KNOW OF NO
SUCH CLAIM EVER BEING MADE BEFORE.  SUCH A REQUIREMENT HAS NEVER BEEN
THOUGHT APPLICABLE TO INVESTIGATIONS AND IS WHOLLY OUT OF PLACE WHEN
RELATED TO THE INFORMING FUNCTION OF THE CONGRESS.  SEE FRANKFURTER,
HANDS OFF THE INVESTIGATIONS, 38 NEW REPUBLIC, MAY 21, 1924, P. 329, 65
CONG. REC. 9080-9082.  THE CONGRESS DOES NOT HAVE THE FACTS AT THE TIME
OF THE INVESTIGATION FOR ITS IS THE FACTS THAT ARE BEING SOUGHT.  IN A
CRIMINAL TRIAL THE INVESTIGATION HAS BEEN COMPLETED AND ALL OF THE
FACTS ARE AT HAND.  THE INFORMING FUNCTION OF THE CONGRESS IS IN EFFECT
"A STUDY BY THE GOVERNMENT OF CIRCUMSTANCES WHICH SEEM TO CALL FOR
STUDY IN THE PUBLIC INTEREST."  SEE BLACK, INSIDE A SENATE
INVESTIGATION, 172 HARPER'S MAGAZINE, FEB. 1936, PP. 275, 278.  IN THE
CONDUCT OF SUCH A PROCEEDING IT IS IMPOSSIBLE TO BE AS EXPLICIT AND
EXACT AS IN A CRIMINAL PROSECUTION.  IF THE COURT IS SAYING THAT ITS
NEW RULE DOES NOT APPLY TO CONTEMPT CASES TRIED BEFORE THE BAR OF THE
HOUSE AFFECTED, IT MAY WELL LEAD TO TRIAL OF ALL CONTEMPT CASES BEFORE
THE BAR OF THE WHOLE HOUSE IN ORDER TO AVOID THE RESTRICTIONS OF THE
RULE.  BUT THIS WILL NOT PROMOTE THE RESULT DESIRED BY THE MAJORITY. 
SUMMARY TREATMENT, AT BEST, COULD BE PROVIDED BEFORE THE WHOLE HOUSE
BECAUSE OF THE TIME FACTOR, AND SUCH TREATMENT WOULD NECESSARILY
DEPRIVE THE WITNESS OF MANY OF THE SAFEGUARDS IN THE PRESENT
PROCEDURES.   ON REVIEW HERE THE MAJORITY MIGHT THEN FIND FAULT WITH
THAT PROCEDURE. 

        III. 

COMING TO THE MERITS OF WATKINS' CASE, THE COURT REVERSES THE
JUDGMENT BECAUSE:  (1) THE SUBJECT MATTER OF THE INQUIRY WAS NOT "MADE
TO APPEAR WITH UNDISPUTABLE CLARITY" EITHER THROUGH ITS "CHARTER" OR BY
THE CHAIRMAN AT THE TIME OF THE HEARING AND, THEREFORE, WATKINS WAS
DEPRIVED OF A CLEAR UNDERSTANDING OF "THE MANNER IN WHICH THE
PROPOUNDED QUESTIONS WERE PERTINENT THERETO"; AND (2) THE PRESENT
COMMITTEE SYSTEM OF INQUIRY OF THE HOUSE, AS PRACTICED BY THE UN
AMERICAN ACTIVITIES COMMITTEE, DOES NOT PROVIDE ADEQUATE SAFEGUARDS FOR
THE PROTECTION OF THE CONSTITUTIONAL RIGHT OF FREE SPEECH.  I SUBSCRIBE
TO NEITHER CONCLUSION. 

WATKINS HAD BEEN AN ACTIVE LEADER IN THE LABOR MOVEMENT FOR MANY
YEARS AND HAD BEEN IDENTIFIED BY TWO PREVIOUS WITNESSES AT THE
COMMITTEE'S HEARING IN CHICAGO AS A MEMBER OF THE COMMUNIST PARTY. 
THERE CAN BE NO QUESTION THAT HE WAS FULLY INFORMED OF THE SUBJECT
MATTER OF THE INQUIRY.  HIS TESTIMONY REVEALS A COMPLETE KNOWLEDGE AND
UNDERSTANDING OF THE HEARINGS AT CHICAGO.  THERE THE CHAIRMAN HAD
ANNOUNCED THAT THE COMMITTEE HAD BEEN DIRECTED "TO ASCERTAIN THE EXTENT
AND SUCCESS OF SUBVERSIVE ACTIVITIES DIRECTED AGAINST THESE UNITED
STATES AND ON THE BASIS OF THESE INVESTIGATIONS AND HEARINGS  ...
REPORT ITS FINDINGS TO THE CONGRESS AND MAKE RECOMMENDATIONS  ...  FOR
NEW LEGISLATION."  HE POINTED TO THE VARIOUS LAWS THAT HAD BEEN ENACTED
AS A RESULT OF COMMITTEE RECOMMENDATIONS.  HE STATED THAT "THE CONGRESS
HAS ALSO REFERRED TO THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES A
BILL WHICH WOULD AMEND THE NATIONAL SECURITY ACT OF 1950" WHICH, IF
MADE LAW, WOULD RESTRICT THE AVAILABILITY OF THE LABOR ACT TO UNIONS
NOT "IN FACT COMMUNIST-CONTROLLED ACTION GROUPS."  THE CHAIRMAN WENT ON
TO SAY THAT "IT CANNOT BE SAID THAT SUBVERSIVE INFILTRATION HAS HAD A
GREATER NOR A LESSER SUCCESS IN INFILTRATING THIS IMPORTANT AREA.  THE
HEARINGS TODAY ARE THE CULMINATION OF AN INVESTIGATION ...  .  EVERY
WITNESS WHO HAS BEEN SUBPOENAED TO APPEAR BEFORE THE COMMITTEE HERE IN
CHICAGO  ...  IS KNOWN TO POSSESS INFORMATION WHICH WILL ASSIST THE
COMMITTEE IN PERFORMING ITS DIRECTED FUNCTION TO THE CONGRESS OF THE
UNITED STATES." 

A SUBPOENA HAD ISSUED FOR WATKINS TO APPEAR AT THE CHICAGO HEARINGS
BUT HE WAS NOT SERVED.  AFTER WATKINS WAS SERVED THE HEARING IN
QUESTION WAS HELD IN WASHINGTON, D.C.  REFERENCE AT THIS HEARING WAS
MADE TO THE ONE CONDUCTED IN CHICAGO.  WATKINS CAME BEFORE THE
COMMITEEE WITH A CAREFULLY PREPARED STATEMENT.  HE DENIED CERTAIN
TESTIMONY OF THE PREVIOUS WITNESSES AND DECLARED THAT HE HAD NEVER BEEN
A "CARD-CARRYING MEMBER" OF THE PARTY.  HE ADMITTED THAT FOR THE PERIOD
1942-1947 HE "COOPERATED WITH THE COMMUNIST PARTY  ...  PARTICIPATED IN
COMMUNIST ACTIVITIES  ...  MADE CONTRIBUTIONS  ...  ATTENDED CAUCUSES
AT HIS UNION'S CONVENTION AT WHICH COMMUNIST PARTY OFFICIALS WERE
PRESENT  ...  AND FREELY COOPERATED WITH THE COMMUNIST PARTY  ...  ." 
THIS INDICATED THAT FOR A FIVE-YEAR PERIOD HE, A UNION OFFICIAL, WAS
COOPERATING CLOSELY WITH THE COMMUNIST PARTY EVEN PERMITTING ITS
OFFICIALS TO ATTEND UNION CAUCUSES.  FOR THE LAST TWO YEARS OF THIS
LIAISON THE PARTY HAD PUBLICLY THROWN OFF ITS CLOAK OF A POLITICAL
PARTY.  IT WAS A RECONSTITUTED, MILITANT GROUP KNOWN TO BE DEDICATED TO
THE OVERTHROW OF OUR GOVERNMENT BY FORCE AND VIOLENCE.  IN THIS SETTING
THE COMMITTEE ATTEMPTED TO HAVE WATKINS IDENTIFY 30 PERSONS, MOST OF
WHOM WERE CONNECTED WITH LABOR UNIONS IN SOME WAY.  WHILE ONE "OPERATED
A BEAUTY PARLOR" AND ANOTHER WAS A "WATCHMAKER," THEY MAY WELL HAVE
BEEN "DROPS" OR OTHER FUNCTIONARIES IN THE PROGRAM OF COOPERATION
BETWEEN THE UNION AND THE PARTY.  IT IS A NON SEQUITUR FOR THE COURT TO
SAY THAT SINCE "ALMOST A QUARTER OF THE PERSONS ON THE LIST ARE NOT
LABOR PEOPLE, THE INFERENCE BECOMES STRONG THAT THE SUBJECT BEFORE THE
SUBCOMMITTEE WAS NOT DEFINED IN TERMS OF COMMUNISM IN LABOR."  I SUBMIT
THAT THE OPPOSITE IS TRUE. 

                   IV. 

I THINK THE COMMITTEE HERE WAS ACTING ENTIRELY WITHIN ITS SCOPE AND
THAT THE PURPOSE OF ITS INQUIRY WAS SET OUT WITH "UNDISPUTABLE
CLARITY."  IN THE FIRST PLACE, THE AUTHORIZING LANGUAGE OF THE
REORGANIZATION ACT (FN11) MUST BE READ AS A WHOLE, NOT DISSECTED.  IT
AUTHORIZED INVESTIGATION INTO SUBVERSIVE ACTIVITY, ITS EXTENT,
CHARACTER, OBJECTS, AND DIFFUSION.  WHILE THE LANGUAGE MIGHT HAVE BEEN
MORE EXPLICIT THAN USING SUCH WORDS AS "UN-AMERICAN," OR PHRASES LIKE
"PRINCIPLE OF THE FORM OF GOVERNMENT," STILL THESE ARE FAIRLY WELL
UNDERSTOOD TERMS.  WE MUST CONSTRUE THEM TO GIVE THEM MEANING IF WE
CAN.  OUR CASES INDICATE THAT RATHER THAN FINDING FAULT WITH THE USE OF
WORDS OR PHRASES, WE ARE BOUND TO PRESUME THAT THE ACTION OF THE
LEGISLATIVE BODY IN GRANTING AUTHORITY TO THE COMMITTEE WAS WITH A
LEGITIMATE OBJECT "IF THE ACTION IS CAPABLE OF BEING SO CONSTRUED." 
PEOPLE EX REL. MCDONALD V. KEELER, 99 N.Y. 463, 487, 2 N.E. 615, 627
628 (1885), AS QUOTED AND APPROVED IN MCGRAIN V. DAUGHERTY, SUPRA, AT
178.  BEFORE WE CAN DENY THE AUTHORITY "IT MUST BE OBVIOUS THAT" THE
COMMITTEE HAS "EXCEEDED THE BOUNDS OF LEGISLATIVE POWER."  TENNEY V.
BRANDHOVE, 341 U.S. 367, 378 (1951).  THE FACT THAT THE COMMITTEE HAS
OFTEN BEEN ATTACKED HAS CAUSED CLOSE SCRUTINY OF ITS ACTS BY THE HOUSE
AS A WHOLE AND THE HOUSE HAD REPREATEDLY GIVEN THE COMMITTEE ITS
APPROVAL.  "POWER" AND "RESPONSIBILITY" HAVE NOT BEEN SEPARATED.  BUT
THE RECORD IN THIS CASE DOES NOT STOP HERE.  IT SHOWS THAT AT THE
HEARINGS INVOLVING WATKINS, THE CHAIRMAN MADE STATEMENTS EXPLAINING THE
FUNCTIONS OF THE COMMITTEE.  (FN12)  AND, FURTHERMORE, WATKINS' ACTION
AT THE HEARING CLEARLY REVEALS THAT HE WAS WELL ACQUAINTED WITH THE
PURPOSE OF THE HEARING.  IT WAS TO INVESTIGATE COMMUNIST INFILTRATION
INTO HIS UNION.  THIS CERTAINLY FALLS WITHIN THE GRANT OF AUTHORITY
FROM THE REORGANIZATION ACT AND THE HOUSE HAS HAD AMPLE OPPORTUNITY TO
LIMIT THE INVESTIGATIVE SCOPE OF THE COMMITTEE IF IT FEELS THAT THE
COMMITTEE HAS EXCEEDED ITS LEGITIMATE BOUNDS. 

THE COURT MAKES MUCH OF PETITIONER'S CLAIM OF "EXPOSURE FOR
EXPOSURE'S SAKE" AND STRIKES AT THE PURPOSES OF THE COMMITTEE THROUGH
THIS CATCH PHRASE.  BUT WE ARE BOUND TO ACCEPT AS THE PURPOSE OF THE
COMMITTEE THAT STATED IN THE REORGANIZATION ACT TOGETHER WITH THE
STATEMENTS OF THE CHAIRMAN AT THE HEARINGS INVOLVED HERE.  NOTHING WAS
SAID OF EXPOSURE.  THE STATEMENTS OF A SINGLE CONGRESSMAN CANNOT
TRANSFORM THE REAL PURPOSE OF THE COMMITTEE INTO SOMETHING NOT
AUTHORIZED BY THE PARENT RESOLUTION.  SEE UNITED STATES V. RUMELY, 345
U.S. 41 (1953); SINCLAIR V. UNITED STATES, 279 U.S. 263, 290, 295
(1929).  THE COURT INDICATES THAT THE QUESTIONS PROPOUNDED WERE ASKED
FOR EXPOSURE'S SAKE AND HAD NO PERTINENCY TO THE INQUIRY.  IT APPEARS
TO ME THAT THEY WERE ENTIRELY PERTINENT TO THE ANNOUNCED PURPOSE OF THE
COMMITTEE'S INQUIRY.  UNDOUBTEDLY CONGRESS HAS THE POWER TO INQUIRE
INTO THE SUBJECTS OF COMMUNISM AND THE COMMUNIST PARTY.  AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382 (1950).  AS A COROLLARY OF
THE CONGRESSIONAL POWER TO INQUIRE INTO SUCH SUBJECT MATTER, THE
CONGRESS, THROUGH ITS COMMITTEES, CAN LEGITIMATELY SEEK TO IDENTIFY
INDIVIDUAL MEMBERS OF THE PARTY.   BARSKY V. UNITED STATES, 83 U.S.
APP. D.C. 127, 167 F.2D 241 (1948), CERT. DENIED, 334 U.S. 843.  SEE
ALSO LAWSON V. UNITED STATES, 85 U.S. APP. D.C. 167, 170-171, 176 F.2D
49, 52-53 (1949), CERT. DENIED, 339 U.S. 934; UNITED STATES V.
JOSEPHSON, 165 F.2D 82, 90-92 (1947), CERT. DENIED, 333 U.S. 838. 

THE PERTINENCY OF THE QUESTIONS IS HIGHLIGHTED BY THE NEED FOR THE
CONGRESS TO KNOW THE EXTENT OF INFILTRATION OF COMMUNISM IN LABOR
UNIONS.  THIS TECHNIQUE OF INFILTRATION WAS THAT USED IN BRINGING THE
DOWNFALL OF COUNTRIES FORMERLY FREE BUT NOW STILL REMAINING BEHIND THE
IRON CURTAIN.  THE DOUDS CASE ILLUSTRATES THAT THE PARTY IS NOT AN
ORDINARY POLITICAL PARTY AND HAS NOT BEEN AT LEAST SINCE 1945. 
ASSOCIATION WITH ITS OFFICIALS IS NOT AN ORDINARY ASSOCIATION.  NOR
DOES IT MATTER THAT THE QUESTIONS RELATED TO THE PAST.  INFLUENCES OF
PAST ASSOCIATIONS OFTEN LINGER ON AS WAS CLEARLY SHOWN IN THE INSTANCE
OF THE WITNESS MATUSOW AND OTHERS.  THE TECHNIQUES USED IN THE
INFILTRATION WHICH ADMITTEDLY EXISTED HERE MIGHT WELL BE USED AGAIN IN
THE FUTURE.  IF THE PARTIES ABOUT WHOM WATKINS WAS INTERROGATED WERE
COMMUNISTS AND COLLABORATED WITH HIM, AS A PRIOR WITNESS INDICATED, AN
ENTIRELY NEW AREA OF INVESTIGATION MIGHT HAVE BEEN OPENED UP.  WATKINS'
SILENCE PREVENTED THE COMMITTEE FROM LEARNING THIS INFORMATION WHICH
COULD HAVE BEEN VITAL TO ITS FUTURE INVESTIGATION.  THE COMMITTEE WAS
LIKEWISE ENTITLED TO ELICIT TESTIMONY SHOWING THE TRUTH OR FALSITY OF
THE PRIOR TESTIMONY OF THE WITNESSES WHO HAD INVOLVED WATKINS AND THE
UNION WITH COLLABORATION WITH THE PARTY.   IF THE TESTIMONY WAS UNTRUE
A FALSE PICTURE OF THE RELATIONSHIP BETWEEN THE UNION AND THE PARTY
LEADERS WOULD HAVE RESULTED.  FOR THESE REASONS THERE WERE AMPLE
INDICATIONS OF THE PERTINENCY OF THE QUESTIONS. 

                                        V. 

THE COURT CONDEMNS THE LONG-ESTABLISHED AND LONG-RECOGNIZED COMMITTEE
SYSTEM OF INQUIRY OF THE HOUSE BECAUSE IT RAISES SERIOUS QUESTIONS
CONCERNING THE PROTECTION IT AFFORDS TO CONSTITUTIONAL RIGHTS.  IT
CONCLUDES THAT COMPELLING A WITNESS TO REVEAL HIS "BELIEFS, EXPRESSIONS
OR ASSOCIATIONS" IMPINGES UPON FIRST AMENDMENT RIGHTS.  THE SYSTEM OF
INQUIRY, IT SAYS, MUST "INSURE THAT THE CONGRESS DOES NOT UNJUSTIFIABLY
ENCROACH UPON AN INDIVIDUAL'S RIGHT TO PRIVACY NOR ABRIDGE HIS LIBERTY
OF SPEECH, PRESS, RELIGION OR ASSEMBLY."  IN EFFECT THE COURT HONORS
WATKINS' CLAIM OF A "RIGHT TO SILENCE" WHICH BRINGS ALL INQUIRIES, AS
WE KNOW, TO A "DEAD END."  I DO NOT SEE HOW ANY FIRST AMENDMENT RIGHTS
WERE ENDANGERED HERE.  THERE IS NOTHING IN THE FIRST AMENDMENT THAT
PROVIDES THE GUARANTEES WATKINS CLAIMS.  THAT AMENDMENT WAS DESIGNED TO
PREVENT ATTEMPTS BY LAW TO CURTAIL FREEDOM OF SPEECH.  WHITNEY V.
CALIFONRIA, 274 U.S. 357, 375 (1927).  IT FORBIDS CONGRESS FROM MAKING
ANY LAW "ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS."  IT
GUARANTEES WATKINS' RIGHT TO JOIN ANY ORGANIZATION AND MAKE ANY SPEECH
THAT DOES NOT HAVE AN INTENT TO INCITE TO CRIME.  DENNIS V. UNITED
STATES, 341 U.S. 494 (1951).  BUT WATKINS WAS ASKED WHETHER HE KNEW
NAMED INDIVIDUALS AND WHETHER THEY WERE COMMUNISTS.  HE REFUSED TO
ANSWER ON THE GROUND THAT HIS RIGHTS WERE BEING ABRIDGED.  WHAT HE WAS
ACTUALLY SEEKING TO DO WAS TO PROTECT HIS FORMER ASSOCIATES, NOT
HIMSELF, FROM EMBARRASSMENT.  HE HAD ALREADY ADMITTED HIS OWN
INVOLVEMENT.  HE SOUGHT TO VINDICATE THE RIGHTS, IF ANY, OF HIS
ASSOCIATES.  IT IS SETTLED THAT ONE CANNOT INVOKE THE CONSTITUTIONAL
RIGHTS OF ANOTHER.  TILESTON V. ULLMAN, 318 U.S. 44, 46 (1943). 

AS ALREADY INDICATED, EVEN IF WATKINS' ASSOCIATES WERE ON THE STAND
THEY COULD NOT DECLINE TO DISCLOSE THEIR COMMUNIST CONNECTIONS ON FIRST
AMENDMENT GROUNDS.  WHILE THERE MAY BE NO RESTRAINT BY THE GOVERNMENT
OF ONE'S BELIEFS, THE RIGHT OF FREE BELIEF HAS NEVER BEEN EXTENDED TO
INCLUDE THE WITHHOLDING OF KNOWLEDGE OF PAST EVENTS OR TRANSACTIONS. 
THERE IS NO GENERAL PRIVILEGE OF SILENCE.  THE FIRST AMENDMENT DOES NOT
MAKE SPEECH OR SILENCE PERMISSIBLE TO A PERSON IN SUCH MEASURE AS HE
CHOOSES.  WATKINS HAS HERE EXERCISED HIS OWN CHOICE AS TO WHEN HE
TALKS, WHAT QUESTIONS HE ANSWERS, AND WHEN HE REMAINS SILENT.  A
WITNESS IS NOT GIVEN SUCH A CHOICE BY THE AMENDMENT.  REMOTE AND
INDIRECT DISADVANTAGES SUCH AS "PUBLIC STIGMA, SCORN AND OBLOQUY" MAY
BE RELATED TO THE FIRST AMENDMENT, BUT THEY ARE NOT ENOUGH TO BLOCK
INVESTIGATION.  THE CONGRESS HAS RECOGNIZED THIS SINCE 1862 WHEN IT
FIRST ADOPTED THE CONTEMPT SECTION, R.S. SEC. 103, AS AMENDED, 2 U.S.C.
SEC. 193, DECLARING THAT NO WITNESS BEFORE A CONGRESSIONAL COMMITTEE
MAY REFUSE TO TESTIFY "UPON THE GROUND THAT HIS TESTIMONY TO SUCH FACT
OR HIS PRODUCTION OF SUCH PAPER MAY TEND TO DISGRACE HIM OR OTHERWISE
RENDER HIM INFAMOUS."  SEE ALSO MCGRAIN V. DAUGHERTY, SUPRA, AT 179
180; UNITED STATES V. JOSEPHSON, 165 F.2D 82, 89 (1947), CERT. DENIED,
333 U.S. 838.  SEE ALSO REPORT ON CONGRESSIONAL INVESTIGATIONS, ASSN.
OF THE BAR OF THE CITY OF NEW YORK, 3-4 (1948). 

WE DO NOT HAVE IN THIS CASE UNAUTHORIZED, ARBITRARY, OR UNREASONABLE
INQUIRIES AND DISCLOSURES WITH RESPECT TO A WITNESS' PERSONAL AND
PRIVATE AFFAIRS SO ABLY AND PROPERLY DENOUNCED IN THE SINCLAIR CASE,
SUPRA, AT 291-292.  THIS INQUIRY IS FAR DIFFERENT FROM THE CASES RELIED
UPON BY THE COURT.  THERE IS NO ANALOGY TO THE CASE OF RICHARD THOMPSON
(FN13) INVOLVING THE SERMONS OF CLERGYMEN.  IT IS NOT FLOYD'S (FN14)
CASE INVOLVING CRITICISM OF THE ROYAL FAMILY.  THERE IS NO RESEMBLANCE
TO JOHN WILKES' STRUGGLE FOR A SEAT IN PARLIAMENT.  IT IS NOT BRIGGS
(FN15) WHERE THE PROSECUTOR SOUGHT TO DEVELOP THE NATIONAL ORIGIN OF
POLICEMEN.  IT IS NOT KILBOURN (FN16) INVOLVING PRIVATE REAL ESTATE
POOL.  NOR IS IT QUINN, (FN17) EMSPAK, (FN18) OR BART, (FN19) INVOLVING
THE FIFTH AMENDMENT.  IT IS NOT RUMELY (FN20) INVOLVING THE
INTERPRETATION OF A LOBBYING STATUTE.  NOR IS THIS "A NEW KIND OF
CONGRESSIONAL INQUIRY UNKNOWN IN PRIOR PERIODS OF AMERICAN HISTORY  ...
I.E. A BROAD SCALE INTRUSION INTO THE LIVES AND AFFAIRS OF PRIVATE
CITIZENS."  AS I SEE IT ONLY THE SETTING IS DIFFERENT.  IT INVOLVES NEW
FACES AND NEW ISSUES BROUGHT ABOUT BY NEW SITUATIONS WHICH THE CONGRESS
FEELS IT IS NECESSARY TO CONTROL IN THE PUBLIC INTEREST.  THE
DIFFICULTIES OF GETTING INFORMATION ARE IDENTICAL IF NOT GREATER.  LIKE
AUTHORITY TO THAT ALWAYS USED BY THE CONGRESS IS EMPLOYED HERE AND IN
THE SAME MANNER SO FAR AS CONGRESSIONAL PROCEDURES ARE CONCERNED.  WE
SHOULD AFFORD TO CONGRESS THE PRESUMPTION THAT IT TAKES EVERY
PRECAUTION POSSIBLE TO AVOID UNNECESSARY DAMAGE TO REPUTATIONS.  SOME
COMMITTEES HAVE CODES OF PROCEDURE, AND OTHERS USE THE EXECUTIVE
HEARING TECHNIQUE TO THIS END.  THE RECORD IN THIS CASE SHOWS NO
CONDUCT ON THE PART OF THE UN-AMERICAN ACTIVITIES COMMITTEE THAT
JUSTIFIES CONDEMNATION.  THAT THERE MAY HAVE BEEN SUCH OCCASIONS IS NOT
FOR US TO CONSIDER HERE.  NOR SHOULD WE PERMIT ITS PAST TRANSGRESSIONS,
IF ANY, TO LEAD TO THE RIGID RESTRAINT OF ALL CONGRESSIONAL
COMMITTEES.  TO CARRY ON ITS HEAVY RESPONSIBILITY THE COMPULSION OF
TRUTH THAT DOES NOT INCRIMINATE IS NOT ONLY NECESSARY TO THE CONGRESS
BUT IS PERMITTED WITHIN THE LIMITS OF THE CONSTITUTION. 

FN1  UNITED STATES V. RUMELY, 345 U.S. 41 (1953); SINCLAIR V. UNITED
STATES, 279 U.S. 263 (1929); REED V. COUNTY COMMISSIONERS, 277 U.S. 376
(1928); MCGRAIN V. DAUGHERTY, 273 U.S. 135 (1927); LANDIS,
CONSTITUTIONAL LIMITATIONS ON THE CONGRESSIONAL POWER OF INVESTIGATION,
40 HARV. L. REV. 153 (1926). 

FN2  SYMPOSIUM ON CONGRESSIONAL INVESTIGATIONS, 18 U. OF CHI.  L.
REV. 421, FINER, THE BRITISH SYSTEM, 521, 532, 554, 561 (1951). 

FN3  THE COMMITTEE ORIGINATED IN 1938 UNDER H. RES. 282, 75TH CONG.,
3D SESS., 83 CONG.  REC. 7568, AND WAS PATTERNED AFTER A RESOLUTION OF
1934 AUTHORIZING THE INVESTIGATION OF NAZI PROPAGANDA.   H. RES. 198,
73D CONG., 2D SESS., 78 CONG. REC. 4934.  THE RESOLUTION READ MUCH THE
SAME AS THE PRESENT AUTHORITY OF THE COMMITTEE WHICH IS QUOTED BELOW. 
BY A SUCCESSION OF HOUSE RESOLUTIONS (H. RES. 26, 76TH CONG., 1ST
SESS., 84 CONG. REC. 1098, H. RES. 321, 76TH CONG., 3D SESS., 86 CONG.
REC. 572; H. RES.  90, 77TH CONG., 1ST SESS., 87 CONG. REC. 886; H.
RES. 420, 77TH CONG., 2D SESS., 88 CONG.  REC. 2282; H. RES. 65, 78TH
CONG., 1ST SESS., 89 CONG. REC. 795) THE COMMITTEE CONTINUED IN
EXISTENCE UNTIL IN 1945, BY AMENDMENT OF THE HOUSE RULES, IT WAS MADE A
STANDING COMMITTEE.  91 CONG. REC. 10, 15.  THE LEGISLATIVE
REORGANIZATION ACT OF 1946 RETAINED IT AS ONE OF THE STANDING
COMMITTEES AND PROVIDED: 

"ALL PROPOSED LEGISLATION, MESSAGES, PETITIONS, MEMORIALS, AND OTHER
MATTERS RELATING TO THE SUBJECTS LISTED UNDER THE STANDING COMMITTEES
NAMED BELOW SHALL BE REFERRED TO SUCH COMMITTEES, RESPECTIVELY:  ...
." 

"(Q)  ...  (2)  THE COMMITTEE ON UN-AMERICAN ACTIVITIES, AS A WHOLE
OR BY SUBCOMMITTEE, IS AUTHORIZED TO MAKE FROM TIME TO TIME
INVESTIGATIONS OF (I) THE EXTENT, CHARACTER, AND OBJECTS OF UN-AMERICAN
PROPAGANDA ACTIVITIES IN THE UNITED STATES, (II) THE DIFFUSION WITHIN
THE UNITED STATES OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT IS
INSTIGATED FROM FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN AND ATTACKS
THE PRINCIPLE OF THE FORM OF GOVERNMENT AS GUARANTEED BY OUR
CONSTITUTION, AND (III) ALL OTHER QUESTIONS IN RELATION THERETO THAT
WOULD AID CONGRESS IN ANY NECESSARY REMEDIAL LEGISLATION."  60 STAT.
823, 828. 

THE COMMITTEE IS AUTHORIZED TO SIT AND ACT AT ANY TIME, ANYWHERE IN
THE UNITED STATES AND TO REQUIRE THE ATTENDANCE OF WITNESSES AND THE
PRODUCTION OF BOOKS AND PAPERS.  A RESOLUTION OF THE EIGHTY-THIRD
CONGRESS ADOPTED THE RULES OF THE PREVIOUS CONGRESSES AS AMENDED BY THE
LEGISLATIVE REORGANIZATION ACT OF 1946.  H. RES. 5, 83D CONG., 1ST
SESS., 99 CONG. REC. 15, 16, 18, 24. 

FN4  60 STAT. 815, 824. 

FN5  60 STAT. 817, 826. 

FN6  60 STAT. 815, 824. 

FN7  S. RES. 202, 81ST CONG., 2D SESS., IN PERTINENT PART PROVIDES: 

"AUTHORIZED AND DIRECTED TO MAKE A FULL AND COMPLETE STUDY AND
INVESTIGATION OF WHETHER ORGANIZED CRIME UTILIZES THE FACILITIES OF
INTERSTATE COMMERCE OR OTHERWISE OPERATES IN INTERSTATE COMMERCE IN
FURTHERANCE OF ANY TRANSACTIONS WHICH ARE IN VIOLATION OF THE LAW OF
THE UNITED STATES OR OF THE STATE IN WHICH THE TRANSACTIONS OCCUR, AND,
IF SO, THE MANNER AND EXTENT TO WHICH, AND THE IDENTITY OF THE PERSONS,
FIRMS, OR CORPORATIONS BY WHICH SUCH UTILIZATION IS BEING MADE, WHAT
FACILITIES ARE BEING USED, AND WHETHER OR NOT ORGANIZED CRIME UTILIZES
SUCH INTERSTATE FACILITIES OR OTHERWISE OPERATES IN INTERSTATE COMMERCE
FOR THE DEVELOPMENT OF CORRUPTING INFLUENCES IN VIOLATION OF LAW OF THE
UNITED STATES OR OF THE LAWS OF ANY STATE:  PROVIDED, HOWEVER, THAT
NOTHING CONTAINED HEREIN SHALL AUTHORIZE (1) THE RECOMMENDATION OF ANY
CHANGE IN THE LAWS OF THE SEVERAL STATES RELATIVE TO GAMBLING, OR (2)
ANY POSSIBLE INTERFERENCE WITH THE RIGHTS OF THE SEVERAL STATES TO
PROHIBIT, LEGALIZE, OR IN ANY WAY REGULATE GAMBLING WITHIN THEIR
BORDERS." 

FN8  H. RES. 198, 81ST CONG., 1ST SESS., IN PERTINENT PART PROVIDES: 

"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." 

FN9  H. RES. 596, 82D CONG., 2D SESS., IN PERTINENT PART PROVIDES: 

"AUTHORIZED AND DIRECTED TO CONDUCT A FULL AND COMPLETE INVESTIGATION
AND STUDY (1) TO DETERMINE THE EXTENT TO WHICH CURRENT LITERATURE -
BOOKS, MAGAZINES, AND COMIC BOOKS - CONTAINING IMMORAL, OBSCENE, OR
OTHERWISE OFFENSE MATTER, OR PLACING IMPROPER EMPHASIS ON CRIME,
VIOLENCE, AND CORRUPTION, ARE BEING MADE AVAILABLE TO THE PEOPLE OF THE
UNITED STATES THROUGH THE UNITED STATES MAILS AND OTHERWISE; AND (2) TO
DETERMINE THE ADEQUACY OF EXISTING LAW TO PREVENT THE PUBLICATION AND
DISTRIBUTION OF BOOKS CONTAINING IMMORAL, OFFENSIVE, AND OTHER
UNDESIRABLE MATTER." 

FN10  S. RES. 74, 85TH CONG., 1ST SESS., IN PERTINENT PART PROVIDES: 

"AUTHORIZED AND DIRECTED TO CONDUCT AN INVESTIGATION AND STUDY OF THE
EXTENT TO WHICH CRIMINAL OR OTHER IMPROPER PRACTICES OR ACTIVITIES ARE,
OR HAVE BEEN, ENGAGED IN THE FIELD OF LABOR-MANAGEMENT RELATIONS OR IN
GROUPS OR ORGANIZATIONS OF EMPLOYEES OR EMPLOYERS TO THE DETRIMENT OF
THE INTERESTS OF THE PUBLIC, EMPLOYERS OR EMPLOYEES, AND TO DETERMINE
WHETHER ANY CHANGES ARE REQUIRED IN THE LAWS OF THE UNITED STATES IN
ORDER TO PROTECT SUCH INTERESTS AGAINST THE OCCURRENCE OF SUCH
PRACTICES OR ACTIVITIES." 

FN11  SEE NOTE 3, SUPRA. 

FN12  SEE SUPRA, AT P. 226.  SEE ALSO THE STATEMENT BY CONGRESSMAN
VELDE, CHAIRMAN OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES, APRIL 29,
1954, AT WASHINGTON, D.C., WHERE MR. VELDE STATED, INTER ALIA:  "THIS
COMMITTEE IS SET UP BY THE HOUSE OF REPRESENTATIVES TO INVESTIGATE
SUBVERSION AND SUBVERSIVE PROPAGANDA AND TO REPORT TO THE HOUSE OF
REPRESENTATIVES FOR THE PURPOSE OF REMEDIAL LEGISLATION. 

"THE HOUSE OF REPRESENTATIVES HAS BY A VERY CLEAR MAJORITY, A VERY
LARGE MAJORITY, DIRECTED US TO ENGAGE IN THAT TYPE OF WORK, AND SO WE
DO, AS A COMMITTEE OF THE HOUSE OF REPRESENTATIVES, HAVE THE AUTHORITY,
THE JURISDICTION, TO ASK YOU CONCERNING YOUR ACTIVITIES IN THE
COMMUNIST PARTY, CONCERNING YOUR KNOWLEDGE OF ANY OTHER PERSONS WHO ARE
MEMBERS OF THE COMMUNIST PARTY OR WHO HAVE BEEN MEMBERS OF THE
COMMUNIST PARTY, AND SO, MR. WATKINS, YOU ARE DIRECTED TO ANSWER THE
QUESTION PROPOUNDED TO YOU BY COUNSEL." 

FN13  PROCEEDINGS AGAINST RICHARD THOMPSON, 8 HOW.  ST. TR. 2
(1680). 

FN14  SEE 1 DE LOLME, THE RISE AND PROGRESS OF THE ENGLISH
CONSTITUTION (1838), AT 347-348. 

FN15  BRIGGS V. MACKELLAR, 2 ABB.  PR. 30, 65 (N.Y. COMMON PLEAS
1855). 

FN16  KILBOURN V. THOMPSON, 103 U.S. 168 (1881). 

FN17  QUINN V. UNITED STATES, 349 U.S. 155 (1955). 

FN18  EMSPAK V. UNITED STATES, 349 U.S. 190 (1955). 

FN19  BART V. UNITED STATES, 349 U.S. 219 (1955). 

FN20  UNITED STATES V. RUMELY, 345 U.S. 41 (1953). 
..END :










SWEEZY V. NEW HAMPSHIRE, WYMAN 354 U.S. 234 


NO. 175.  ARGUED MARCH 5, 1957.  - DECIDED JUNE 17, 1957.  - 100 N.H.
103, 121 A.2D 783, REVERSED. 


1.  THIS CASE WAS BROUGHT HERE ON APPEAL UNDER 28 U.S.C. SEC. 1257(2);
BUT THE APPELLANT HAS FAILED TO MEET HIS BURDEN OF SHOWING THAT
JURISDICTION BY APPEAL WAS PROPERLY INVOKED.  HELD:  THE APPEAL IS
DISMISSED.  TREATING THE PAPERS AS A PETITION FOR CERTIORARI UNDER 28
U.S.C. SEC. 2103, CERTIORARI IS GRANTED.  PP. 235-236. 

2.  IN AN INVESTIGATION CONDUCTED BY A STATE ATTORNEY GENERAL, ACTING
ON BEHALF OF THE STATE LEGISLATURE UNDER A BROAD RESOLUTION DIRECTING
HIM TO DETERMINE WHETHER THERE WERE "SUBVERSIVE PERSONS" IN THE STATE
AND TO RECOMMEND FURTHER LEGISLATION ON THAT SUBJECT, APPELLANT
ANSWERED MOST QUESTIONS ASKED HIM, INCLUDING WHETHER HE WAS A
COMMUNIST; BUT HE REFUSED TO ANSWER QUESTIONS RELATED TO (1) THE
CONTENTS OF A LECTURE HE HAD DELIVERED AT THE STATE UNIVERSITY, AND (2)
HIS KNOWLEDGE OF THE PROGRESSIVE PARTY OF THE STATE AND ITS MEMBERS. 
HE DID NOT PLEAD HIS PRIVILEGE AGAINST SELF-INCRIMINATION, BUT BASED
HIS REFUSAL TO ANSWER SUCH QUESTIONS ON THE GROUNDS THAT THEY WERE NOT
PERTINENT TO THE INQUIRY AND VIOLATED HIS RIGHTS UNDER THE FIRST
AMENDMENT.  PERSISTING IN HIS REFUSAL WHEN HALED INTO A STATE COURT AND
DIRECTED TO ANSWER, HE WAS ADJUDGED GUILTY OF CONTEMPT.  THIS JUSGMENT
WAS AFFIRMED BY THE STATE SUPREME COURT, WHICH CONSTRUED THE TERM
"SUBVERSIVE PERSONS" BROADLY ENOUGH TO INCLUDE PERSONS ENGAGED IN
CONDUCT ONLY REMOTELY RELATED TO ACTUAL SUBVERSION AND DONE COMPLETELY
APART FROM ANY CONSCIOUS INTENT TO BE A PART OF SUCH ACTIVITY.   IT
ALSO HELD THAT THE NEED OF THE LEGISLATURE TO BE INFORMED ON THE
SUBJECT OF SELF-PRESERVATION OF GOVERNMENT OUTWEIGHED THE DEPRIVATION
OF CONSTITUTIONAL RIGHTS THAT OCCURRED IN THE PROCESS.  HELD: ON THE
RECORD IN THIS CASE, APPELLANT'S RIGHTS UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT WERE VIOLATED, AND THE JUDGMENT IS REVERSED. 
PP. 235-267. 

FOR THE OPINIONS OF THE JUSTICES CONSTITUTING THE MAJORITY OF THE
COURT, SEE: 

OPINION OF THE CHIEF JUSTICE, JOINED BY MR. JUSTICE BLACK, MR.
JUSTICE DOUGLAS, AND MR. JUSTICE BRENNAN, P. 235. 

OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE HARLAN,
CONCURRING IN THE RESULT, POST, P. 255. 

FOR DISSENTING OPINION OF MR. JUSTICE CLARK, JOINED BY MR. JUSTICE
BURTON, SEE POST, P. 267. 

SWEEZY V. NEW HAMPSHIRE, BY WYMAN, ATTORNEY GENERAL. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

MR. CHIEF JUSTICE WARREN ANNOUNCED THE JUDGMENT OF THE COURT AND
DELIVERED AN OPINION, IN WHICH MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS,
AND MR. JUSTICE BRENNAN JOIN. 

THIS CASE, LIKE WATKINS V. UNITED STATES, ANTE, P. 178, BRINGS BEFORE
US A QUESTION CONCERNING THE CONSTITUTIONAL LIMITS OF LEGISLATIVE
INQUIRY.  THE INVESTIGATION HERE WAS CONDUCTED UNDER THE AEGIS OF A
STATE LEGISLATURE, RATHER THAN A HOUSE OF CONGRESS.  THIS PLACES THE
CONTROVERSY IN A SLIGHTLY DIFFERENT SETTING FROM THAT IN WATKINS.  THE
ULTIMATE QUESTION HERE IS WHETHER THE INVESTIGATION DEPRIVED SWEEZY OF
DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT.  FOR THE REASONS TO
BE SET OUT IN THIS OPINION, WE CONCLUDE THAT THE RECORD IN THIS CASE
DOES NOT SUSTAIN THE POWER OF THE STATE TO COMPEL THE DISCLOSURES THAT
THE WITNESS REFUSED TO MAKE. 

THIS CASE WAS BROUGHT HERE AS AN APPEAL UNDER 28 U.S.C. SEC.
1257(2).  JURISDICTION WAS ALLEGED TO REST UPON CONTENTIONS, REJECTED
BY THE STATE COURTS, THAT A STATUTE OF NEW HAMPSHIRE IS REPUGNANT TO
THE CONSTITUTION OF THE UNITED STATES.  WE POSTPONED A DECISION ON THE
QUESTION OF JURISDICTION UNTIL CONSIDERATION OF THE MERITS.  352 U.S.
812.  THE PARTIES NEITHER BRIEFED NOR ARGUED THE JURISDICTIONAL
QUESTION.  THE APPELLANT HAS THUS FAILED TO MEET HIS BURDEN OF SHOWING
THAT JURISDICTION BY APPEAL WAS PROPERLY INVOKED.  THE APPEAL IS
THEREFORE DISMISSED.  TREATING THE APPEAL PAPERS AS A PETITION FOR WRIT
OF CERTIORARI, UNDER 28 U.S.C. SEC. 2103, THE PETITION IS GRANTED.  CF.
UNION NATIONAL BANK V. LAMB, 337 U.S. 38, 39-40. 

THE INVESTIGATION IN WHICH PETITIONER WAS SUMMONED TO TESTIFY HAD ITS
ORIGINS IN A STATUTE PASSED BY THE NEW HAMPSHIRE LEGISLATURE IN 1951. 
(FN1)  IT WAS A COMPREHENSIVE SCHEME OF REGULATION OF SUBVERSIVE
ACTIVITIES.  THERE WAS A SECTION DEFINING CRIMINAL CONDUCT IN THE
NATURE OF SEDITION.  "SUBVERSIVE ORGANIZATIONS" WERE DECLARED UNLAWFUL
AND ORDERED DISSOLVED.  "SUBVERSIVE PERSONS" WERE MADE INELIGIBLE FOR
EMPLOYMENT BY THE STATE GOVERNMENT.  INCLUDING IN THE DISABILITY WERE
THOSE EMPLOYED AS TEACHERS OR IN OTHER CAPACITIES BY ANY PUBLIC
EDUCATIONAL INSTITUTION.  A LOYALTY PROGRAM WAS INSTITUTED TO ELIMINATE
"SUBVERSIVE PERSONS" AMONG GOVERNMENTAL PERSONNEL.  ALL PRESENT
EMPLOYEES, AS WELL AS CANDIDATES FOR ELECTIVE OFFICE IN THE FUTURE,
WERE REQUIRED TO MAKE SWORN STATEMENTS THAT THEY WERE NOT "SUBVERSIVE
PERSONS." 

IN 1953, THE LEGISLATURE ADOPTED A "JOINT RESOLUTION RELATING TO THE
INVESTIGATION OF SUBVERSIVE ACTIVITIES."  (FN2)  IT WAS RESOLVED: 

"THAT THE ATTORNEY GENERAL IS HEREBY AUTHORIZED AND DIRECTED TO MAKE
FULL AND COMPLETE INVESTIGATION WITH RESPECT TO VIOLATIONS OF THE
SUBVERSIVE ACTIVITIES ACT OF 1951 AND TO DETERMINE WHETHER SUBVERSIVE
PERSONS AS DEFINED IN SAID ACT ARE PRESENTLY LOCATED WITHIN THIS
STATE.  THE ATTORNEY GENERAL IS AUTHORIZED TO ACT UPON HIS OWN MOTION
AND UPON SUCH INFORMATION AS IN HIS JUDGMENT MAY BE REASONABLE OR
RELIABLE  ...  . 

     *        *         *         *         * 

"THE ATTORNEY GENERAL IS DIRECTED TO PROCEED WITH CRIMINAL
PROSECUTIONS UNDER THE SUBVERSIVE ACTIVITIES ACT WHENEVER EVIDENCE
PRESENTED TO HIM IN THE COURSE OF THE INVESTIGATION INDICATES
VIOLATIONS THEREOF, AND HE SHALL REPORT TO THE 1955 SESSION ON THE
FIRST DAY OF ITS REGULAR SESSION THE RESULTS OF THIS INVESTIGATION,
TOGETHER WITH HIS RECOMMENDATIONS, IF ANY, FOR NECESSARY LEGISLATION." 
(FN3) 

UNDER STATE LAW, THIS WAS CONSTRUED TO CONSTITUTE THE ATTORNEY
GENERAL AS A ONE-MAN LEGISLATIVE COMMITTEE.  (FN4)  HE WAS GIVEN THE
AUTHORITY TO DELEGATE ANY PART OF THE INVESTIGATION TO ANY MEMBER OF
HIS STAFF.  THE LEGISLATURE CONFERRED UPON THE ATTORNEY GENERAL THE
FURTHER AUTHORITY TO SUBPOENA WITNESSES OR DOCUMENTS.  HE DID NOT HAVE
POWER TO HOLD WITNESSES IN CONTEMPT, HOWEVER.  IN THE EVENT THAT
COERCIVE OR PUNITIVE SANCTIONS WERE NEEDED, THE ATTORNEY GENERAL COULD
INVOKE THE AID OF A STATE SUPERIOR COURT WHICH COULD FIND RECALCITRANT
WITNESSES IN CONTEMPT OF COURT.  (FN5) 

PETITIONER WAS SUMMONED TO APPEAR BEFORE THE ATTORNEY GENERAL ON TWO
SEPARATE OCCASIONS.  ON JANUARY 5, 1954, PETITIONER TESTIFIED AT LENGTH
UPON HIS PAST CONDUCT AND ASSOCIATIONS.  HE DENIED THAT HE HAD EVER
BEEN A MEMBER OF THE COMMUNIST PARTY OR THAT HE HAD EVER BEEN PART OF
ANY PROGRAM TO OVERTHROW THE GOVERNMENT BY FORCE OR VIOLENCE.  THE
INTERROGATION RANGED OVER MANY MATTERS, FROM PETITIONER'S WORLD WAR II
MILITARY SERVICE WITH THE OFFICE OF STRATEGIC SERVICES TO HIS
SPONSORSHIP, IN 1949, OF THE SCIENTIFIC AND CULTURAL CONFERENCE FOR
WORLD PEACE, AT WHICH HE SPOKE. 

DURING THE COURT OF THE INQUIRY, PETITIONER DECLINED TO ANSWER
SEVERAL QUESTIONS.  HIS REASONS FOR DOING SO WERE GIVEN IN A STATEMENT
HE READ TO THE COMMITTEE AT THE OUTSET OF THE HEARING.  (FN6)  HE
DECLARED HE WOULD NOT ANSWER THOSE QUESTIONS WHICH WERE NOT PERTINENT
TO THE SUBJECT UNDER INQUIRY AS WELL AS THOSE WHICH TRANSGRESS THE
LIMITATIONS OF THE FIRST AMENDMENT.  IN KEEPING WITH THIS STAND, HE
REFUSED TO DISCLOSE HIS KNOWLEDGE OF THE PROGRESSIVE PARTY OF NEW
HAMPSHIRE OR OF PERSONS WITH WHOM HE WAS ACQUAINTED IN THAT
ORGANIZATION.  (FN7)  NO ACTION WAS TAKEN BY THE ATTORNEY GENERAL TO
COMPEL ANSWERS TO THESE QUESTIONS. 

THE ATTORNEY GENERAL AGAIN SUMMONED PETITIONER TO TESTIFY ON JUNE 3,
1954.  THERE WAS MORE INTERROGATION ABOUT THE WITNESS' PRIOR CONTACTS
WITH COMMUNISTS.  THE ATTORNEY GENERAL LAYS GREAT STRESS UPON AN
ATRICLE WHICH PETITIONER HAD CO-AUTHORED.  IT DEPLORED THE USE OF
VIOLENCE BY THE UNITED STATES AND OTHER CAPITALIST COUNTRIES IN
ATTEMPTING TO PRESERVE A SOCIAL ORDER WHICH THE WRITERS THOUGHT MUST
INEVITABLY FALL.  THIS RESISTANCE, THE ARTICLE CONTINUED, WILL BE MET
BY VIOLENCE FROM THE ONCOMING SOCIALISM, VIOLENCE WHICH IS TO BE LESS
CONDEMNED MORALLY THAN THAT OF CAPITALISM SINCE ITS PURPOSE IS TO
CREATE A "TRULY HUMAN SOCIETY."  PETITIONER AFFIRMED THAT HE STYLED
HIMSELF A "CLASSICAL MARXIST" AND A "SOCIALIST" AND THAT THE ARTICLE
EXPRESSED HIS CONTINUING OPINION. 

AGAIN, AT THE SECOND HEARING, THE ATTORNEY GENERAL ASKED, AND
PETITIONER REFUSED TO ANSWER, QUESTIONS CONCERNING THE PROGRESSIVE
PARTY, AND ITS PREDECESSOR, THE PROGRESSIVE CITIZENS OF AMERICA.  THOSE
WERE: 

"WAS SHE, NANCY SWEEZY, YOUR WIFE, ACTIVE IN THE FORMATION OF THE
PROGRESSIVE CITIZENS OF AMERICA?" 

"WAS NANCY SWEEZY THEN WORKING WITH INDIVIDUALS WHO WERE THEN MEMBERS
OF THE COMMUNIST PARTY?" 

"WAS CHARLES BEEBE ACTIVE IN FORMING THE PROGRESSIVE CITIZENS OF
AMERICA?" 

"WAS CHARLES BEEBE ACTIVE IN THE PROGRESSIVE PARTY IN NEW
HAMPSHIRE?" 

"DID HE WORK WITH YOUR PRESENT WIFE - DID CHARLES BEEBE WORK WITH
YOUR PRESENT WIFE IN 1947?" 

"DID IT (A MEETING AT THE HOME OF ABRAHAM WALENKO IN WEARE DURING
1948) HAVE ANYTHING TO DO WITH THE PROGRESSIVE PARTY?" 

THE ATTORNEY GENERAL ALSO TURNED TO A SUBJECT WHICH HAD NOT YET
OCCURRED AT THE TIME OF THE FIRST HEARING.  ON MARCH 22, 1954,
PETITIONER HAD DELIVERED A LECTURE TO A CLASS OF 100 STUDENTS IN THE
HUMANITIES COURSE AT THE UNIVERSITY OF NEW HAMPSHIRE.  THIS TALK WAS
GIVEN AT THE INVITATION OF THE FACULTY TEACHING THAT COURSE. 
PETITIONER HAD ADDRESSED THE CLASS UPON SUCH INVITATIONS IN THE TWO
PRECEDING YEARS AS WELL.  HE DECLINED TO ANSWER THE FOLLOWING
QUESTIONS: 

"WHAT WAS THE SUBJECT OF YOUR LECTURE?" 

"DIDN'T YOU TELL THE CLASS AT THE UNIVERSITY OF NEW HAMPSHIRE ON
MONDAY, MARCH 22, 1954, THAT SOCIALISM WAS INEVITABLE IN THIS
COUNTRY?" 

"DID YOU ADVOCATE MARXISM AT THAT TIME?" 

"DID YOU EXPRESS THE OPINION, OR DID YOU MAKE THE STATEMENT AT THAT
TIME THAT SOCIALISM WAS INEVITABLE IN AMERICA?" 

"DID YOU IN THIS LAST LECTURE ON MARCH 22 OR IN ANY OF THE FORMER
LECTURES ESPOUSE THE THEORY OF DIALECTICAL MATERIALISM?" 

DISTINCT FROM THE CATEGORIES OF QUESTIONS ABOUT THE PROGRESSIVE PARTY
AND THE LECTURES WAS ONE QUESTION ABOUT PETITIONER'S OPINIONS.  HE WAS
ASKED:  "DO YOU BELIEVE IN COMMUNISM?"  HE HAD ALREADY TESTIFIED THAT
HE HAD NEVER BEEN A MEMBER OF THE COMMUNIST PARTY, BUT HE REFUSED TO
ANSWER THIS OR ANY OTHER QUESTION CONERNING OPINION OR BELIEF. 

PETITIONER ADHERED IN THIS SECOND PROCEEDING TO THE SAME REASONS FOR
NOT ANSWERING HE HAD GIVEN IN HIS STATEMENT AT THE FIRST HEARING.  HE
MAINTAINED THAT THE QUESTIONS WERE NOT PERTINENT TO THE MATTER UNDER
INQUIRY AND THAT THEY INFRINGED UPON AN AREA PROTECTED UNDER THE FIRST
AMENDMENT. 

FOLLOWING THE HEARINGS, THE ATTORNEY GENERAL PETITIONED THE SUPERIOR
COURT OF MERRIMACK COUNTY, NEW HAMPSHIRE, SETTING FORTH THE
CIRCUMSTANCES OF PETITIONER'S APPEARANCE BEFORE THE COMMITTEE AND HIS
REFUSAL TO ANSWER CERTAIN QUESTIONS.  (FN8)  THE PETITIONER PRAYED THAT
THE COURT PROPOUND THE QUESTIONS TO THE WITNESS.  AFTER HEARING
ARGUMENT, THE COURT RULED THAT THE QUESTIONS SET OUT ABOVE WERE
PERTINENT.  (FN9)  PETITIONER WAS CALLED AS A WITNESS BY THE COURT AND
PERSISTED IN HIS REFUSAL TO ANSWER FOR CONSTITUTIONAL REASONS.  THE
COURT ADJUDGED HIM IN CONTEMPT AND ORDERED HIM COMMITTED TO THE COUNTY
JAIL UNTIL PURGED OF THE CONTEMPT. 

THE NEW HAMPSHIRE SUPREME COURT AFFIRMED.  100 N.H. 103, 121 A.2D
783.  ITS OPINION DISCUSSES ONLY TWO CLASSES OF QUESTIONS ADDRESSED TO
THE WITNESS:  THOSE DEALING WITH THE LECTURES AND THOSE ABOUT THE
PROGRESSIVE PARTY AND THE PROGRESSIVE CITIZENS OF AMERICA.  NO MENTION
IS MADE OF THE SINGLE QUESTION CONCERNING PETITIONER'S BELIEF IN
COMMUNISM.  IN VIEW OF WHAT WE HOLD TO BE THE CONTROLLING ISSUE OF THE
CASE, HOWEVER, IT IS UNNECESSARY TO RESOLVE AFFIRMATIVELY THAT THAT
PARTICULAR QUESTION WAS OR WAS NOT INCLUDED IN THE DECISION BY THE
STATE SUPREME COURT. 

THERE IS NO DOUBT THAT LEGISLATIVE INVESTIGATIONS, WHETHER ON A
FEDERAL OR STATE LEVEL, ARE CAPABLE OF ENCROACHING UPON THE
CONSTITUTIONAL LIBERTIES OF INDIVIDUALS.  IT IS PARITCULARLY IMPORTANT
THAT THE EXERCISE OF THE POWER OF COMPULSORY PROCESS BE CAREFULLY
CIRCUMSCRIBED WHEN THE INVESTIGATIVE PROCESS TENDS TO IMPINGE UPON SUCH
HIGHLY SENSITIVE AREAS AS FREEDOM OF SPEECH OR PRESS, FREEDOM OF
POLITICAL ASSOCIATION, AND FREEDOM OF COMMUNICATION OF IDEAS,
PARTICULARLY IN THE ACADEMIC COMMUNITY.  RESPONSIBILITY FOR THE PROPER
CONDUCT OF INVESTIGATIONS RESTS, OF COURSE, UPON THE LEGISLATURE
ITSELF.  IF THAT ASSEMBLY CHOOSES TO AUTHORIZE INQUIRIES ON ITS BEHALF
BY A LEGISLATIVELY CREATED COMMITTEE, THAT BASIC RESPONSIBILITY CARRIES
FORWARD TO INCLUDE THE DUTY OF ADEQUATE SUPERVISION OF THE ACTIONS OF
THE COMMITTEE.  THIS SAFEGUARD CAN BE NULLIFIED WHEN A COMMITTEE IS
INVESTED WITH A BROAD AND ILL-DEFINED JURISDICTION.  THE AUTHORIZING
RESOLUTION THUS BECOMES ESPECIALLY SIGNIFICANT IN THAT IT REVEALS THE
AMOUNT OF DISCRETION THAT HAS BEEN CONFERRED UPON THE COMMITTEE. 

IN THIS CASE, THE INVESTIGATION IS GOVERNED BY PROVISIONS IN THE NEW
HAMPSHIRE SUBVERSIVE ACTIVITIES ACT OF 1951.  (FN10)  THE ATTORNEY
GENERAL WAS INSTRUCTED BY THE LEGISLATURE TO LOOK INTO VIOLATIONS OF
THAT ACT.  IN ADDITION, HE WAS GIVEN THE FAR MORE SWEEPING MANDATE TO
FIND OUT IF THERE WERE SUBVERSIVE PERSONS, AS DEFINED IN THAT ACT,
PRESENT IN NEW HAMPSHIRE.  THAT STATUTE, THEREFORE, MEASURES THE
BREADTH AND SCOPE OF THE INVESTIGATION BEFORE US. 

"SUBVERSIVE PERSONS" ARE DEFINED IN MANY GRADATIONS OF CONDUCT.  OUT
INTEREST IS IN THE MINIMAL REQUIREMENTS OF THAT DEFINITION SINCE THEY
WILL OUTLINE ITS REACH.  ACCORDING TO THE STATUTE, A PERSON IS A
"SUBVERSIVE PERSON" IF HE, BY ANY MEANS, AIDS IN THE COMMISSION OF ANY
ACT INTENDED TO ASSIST IN THE ALTERATION OF THE CONSTITUTIONAL FORM OF
GOVERNMENT BY FORCE OR VIOLENCE.  (FN11)  THE POSSIBLE REMOTENESS FROM
ARMED INSURRECTION OF CONDUCT THAT COULD SATISFY THESE CRITERIA IS
OBVIOUS FROM THE LANGUAGE.  THE STATUTE GOES WELL BEYOND THOSE WHO ARE
ENGAGED IN EFFORTS DESIGNED TO ALTER THE FORM OF GOVERNMENT BY FORCE OR
VIOLENCE.  THE STATUTE DECLARES, IN EFFECT, THAT THE ASSISTANT OF AN
ASSISTANT IS CAUGHT UP IN THE DEFINITION.  THIS CHAIN OF CONDUCT
ATTAINS INCREASED SIGNIFICANCE IN LIGHT OF THE LACK OF A NECESSARY
ELEMENT OF GUILTY KNOWLEDGE IN EITHER STAGE OF ASSISTANTS.  THE STATE
SUPREME COURT HAS HELD THAT THE DEFINITION ENCOMPASSES PERSONS ENGAGED
IN THE SPECIFIED CONDUCT "  ...  WHETHER OR NOT DONE 'KNOWINGLY AND
WILLFULLY  ...  .'"  NELSON V. WYMAN, 99 N.H. 33, 39, 105 A.2D 756,
763.  THE POTENTIAL SWEEP OF THIS DEFINITION EXTENDS TO CONDUCT WHICH
IS ONLY REMOTELY RELATED TO ACTUAL SUBVERSION AND WHICH IS DONE
COMPLETELY FREE OF ANY CONSCIOUS INTENT TO BE A PART OF SUCH ACTIVITY. 

THE STATUTE'S DEFINITION OF "SUBVERSIVE ORGANIZATIONS" IS ALSO
BROAD.  AN ASSOCIATION IS SAID TO BE ANY GROUP OF PERSONS, WHETHER
TEMPORARILY OR PERMAMENTLY ASSOCIATED TOGETHER, FOR JOINT ACTION OR
ADVANCEMENT OF VIEWS ON ANY SUBJECT.  (FN12)  AN ORGANIZATION IS DEEMED
SUBVERSIVE IF IT HAS A PURPOSE TO ABET, ADVISE OR TEACH ACTIVITIES
INTENDED TO ASSIST IN THE ALTERATION OF THE CONSTITUTIONAL FORM OF
GOVERNMENT BY FORCE OR VIOLENCE. 

THE SITUATION BEFORE US IS IN MANY RESPECTS ANALOGOUS TO THAT IN
WIEMAN V. UPDEGRAFF, 344 U.S. 183.  THE COURT HELD THERE THAT A LOYALTY
OATH PRESCRIBED BY THE STATE OF OKLAHOMA FOR ALL ITS OFFICERS AND
EMPLOYEES VIOLATED THE REQUIREMENTS OF THE DUE PROCESS CLAUSE BECAUSE
IT ENTAILED SANCTIONS FOR MEMBERSHIP IN SUBVERSIVE ORGANIZATIONS
WITHOUT SCIENTER.  A STATE CANNOT, IN ATTEMPTING TO BAR DISLOYAL
INDIVIDUALS FROM ITS EMPLOY, EXCLUDE PERSONS SOLELY ON THE BASIS OF
ORGANIZATIONAL MEMBERSHIP, REGARDLESS OF THEIR KNOWLEDGE CONCERNING THE
ORGANIZATIONS TO WHICH THEY BELONG.  THE COURT SAID:    "THERE CAN BE
NO DISPUTE ABOUT THE CONSEQUENCES VISITED UPON A PERSON EXCLUDED FROM
PUBLIC EMPLOYMENT ON DISLOYALTY GROUNDS.  IN THE VIEW OF THE COMMUNITY,
THE STAIN IS A DEEP ONE; INDEED, IT HAS BECOME A BADGE OF INFAMY. 
ESPECIALLY IS THIS SO IN TIME OF COLD WAR AND HOT EMOTIONS WHEN 'EACH
MAN BEGINS TO EYE HIS NEIGHBOR AS A POSSIBLE ENEMY.'  YET UNDER THE
OKLAHOMA ACT, THE FACT OF ASSOCIATION ALONE DETERMINES DISLOYALTY AND
DISQUALIFICATION; IT MATTERS NOT WHETHER ASSOCIATION EXISTED INNOCENTLY
OR KNOWINGLY.  TO THUS INHIBIT INDIVIDUAL FREEDOM OF MOVEMENT IS TO
STIFLE THE FLOW OF DEMOCRATIC EXPRESSION AND CONTROVERSY AT ONE OF ITS
CHIEF SOURCES."  344 U.S., AT 190-191. 

THE SANCTION EMANATING FROM LEGISLATIVE INVESTIGATIONS IS OF A
DIFFERENT KIND THAN LOSS OF EMPLOYMENT.  BUT THE STAIN OF THE STAMP OF
DISLOYALTY IS JUST AS DEEP.  THE INHIBITING EFFECT IN THE FLOW OF
DEMOCRATIC EXPRESSION AND CONTROVERSY UPON THOSE DIRECTLY AFFECTED AND
THOSE TOUCHED MORE SUBTLY IS EQUALLY GRAVE.  YET HERE, AS IN WIEMAN,
THE PROGRAM FOR THE ROOTING OUT OF SUBVERSION IS DRAWN WITHOUT REGARD
TO THE PRESENCE OR ABSENCE OF GUILTY KNOWLEDGE IN THOSE AFFECTED. 

THE NATURE OF THE INVESTIGATION WHICH THE ATTORNEY GENERAL WAS
AUTHORIZED TO CONDUCT IS REVEALED BY THIS CASE.  HE DELVED MINUTELY
INTO THE PAST CONDUCT OF PETITIONER, THEREBY MAKING HIS PRIVATE LIFE A
MATTER OF PUBLIC RECORD.  THE QUESTIONING INDICATES THAT THE
INVESTIGATORS HAD THOROUGHLY PREPARED FOR THE INTERVIEW AND WERE NOT
ACQUIRING NEW INFORMATION AS MUCH AS CORROBORATING DATA ALREADY IN
THEIR POSSESSION.  ON THE GREAT MAJORITY OF QUESTIONS, THE WITNESS WAS
COOPERATIVE, EVEN THOUGH HE MADE CLEAR HIS OPINION THAT THE
INTERROGATION WAS UNJUSTIFIED AND UNCONSTITUTIONAL.  TWO SUBJECTS AROSE
UPON WHICH PETITIONER REFUSED TO ANSWER:  HIS LECTURES AT THE
UNIVERSITY OF NEW HAMPSHIRE, AND HIS KNOWLEDGE OF THE PROGRESSIVE PARTY
AND ITS ADHERENTS. 

THE STATE COURTS UPHELD THE ATTEMPT TO INVESTIGATE THE ACADEMIC
SUBJECT ON THE GROUND THAT IT MIGHT INDICATE WHETHER PETITIONER WAS A
"SUBVERSIVE PERSON."  WHAT HE TAUGHT THE CLASS AT A STATE UNIVERSITY
WAS FOUND RELEVANT TO THE CHARACTER OF THE TEACHER.  THE STATE SUPREME
COURT CAREFULLY EXCLUDED THE POSSIBILITY THAT THE INQUIRY WAS
SUSTAINABLE BECAUSE OF THE STATE INTEREST IN THE STATE UNIVERSITY. 
THERE WAS NO WARRANT IN THE AUTHORIZING RESOLUTION FOR THAT.  100 N.H.,
AT 110, 121 A.2D, AT 789-790.  THE SOLE BASIS FOR THE INQUIRY WAS TO
SCRUTINIZE THE TEACHER AS A PERSON, AND THE INQUIRY MUST STAND OR FALL
ON THAT BASIS. 

THE INTERROGATION ON THE SUBJECT OF THE PROGRESSIVE PARTY WAS DEEMED
TO COME WITHIN THE ATTORNEY GENERAL'S MANDATE BECAUSE THAT PARTY MIGHT
HAVE BEEN SHOWN TO BE A "SUBVERSIVE ORGANIZATION."  THE STATE SUPREME
COURT HELD THAT THE "  ...  QUESTIONS CALLED FOR ANSWERS CONCERNING THE
MEMBERSHIP OR PARTICIPATION OF NAMED PERSONS IN THE PROGRESSIVE PARTY
WHICH, IF GIVEN, WOULD AID THE ATTORNEY GENERAL IN DETERMINING WHETHER
THAT PARTY AND ITS PREDECESSOR ARE OR WERE SUBVERSIVE ORGANIZATIONS." 
100 N.H., AT 112, 121 A.2D, AT 791. 

THE NEW HAMPSHIRE COURT CONCLUDED THAT THE "  ...  RIGHT TO LECTURE
AND THE RIGHT TO ASSOCIATE WITH OTHERS FOR A COMMON PURPOSE, BE IT
POLITICAL OR OTHERWISE, ARE INDIVIDUAL LIBERTIES GUARANTEED TO EVERY
CITIZEN BY THE STATE AND FEDERAL CONSTITUTIONS BUT ARE NOT ABSOLUTE
RIGHTS  ...  .  THE INQUIRIES AUTHORIZED BY THE LEGISLATURE IN
CONNECTION WITH THIS INVESTIGATION CONCERNING THE CONTENTS OF THE
LECTURE AND THE MEMBERSHIP, PURPOSES AND ACTIVITIES OF THE PROGRESSIVE
PARTY UNDOUBTEDLY INTERFERED WITH THE DEFENDANT'S FREE EXERCISE OF
THOSE LIBERTIES."  100 N.H., AT 113, 121 A.2D, AT 791-792. 

THE STATE SUPREME COURT THUS CONCEDED WITHOUT EXTENDED DISCUSSION
THAT PETITIONER'S RIGHT TO LECTURE AND HIS RIGHT TO ASSOCIATE WITH
OTHERS WERE CONSTITUTIONALLY PROTECTED FREEDOMS WHICH HAD BEEN ABRIDGED
THROUGH THIS INVESTIGATION.  THESE CONCLUSIONS COULD NOT BE SERIOUSLY
DEBATED.  MERELY TO SUMMON A WITNESS AND COMPEL HIM, AGAINST HIS WILL,
TO DISCLOSE THE NATURE OF HIS PAST EXPRESSIONS AND ASSOCIATIONS IS A
MEASURE OF GOVERNMENTAL INTERFERENCE IN THESE MATTERS.  THESE ARE
RIGHTS WHICH ARE SAFEGUARDED BY THE BILL OF RIGHTS AND THE FOURTEENTH
AMENDMENT.  WE BELIEVE THAT THERE UNQUESTIONABLY WAS AN INVASION OF
PETITIONER'S LIBERTIES IN THE AREAS OF ACADEMIC FREEDOM AND POLITICAL
EXPRESSION - AREAS IN WHICH GOVERNMENT SHOULD BE EXTREMELY RETICENT TO
TREAD. 

THE ESSENTIALITY OF FREEDOM IN THE COMMUNITY OF AMERICAN UNIVERSITIES
IS ALMOST SELF-EVIDENT.  NO ONE SHOULD UNDERESTIMATE THE VITAL ROLE IN
A DEMOCRACY THAT IS PLAYED BY THOSE WHO GUIDE AND TRAIN OUR YOUTH.  TO
IMPOSE ANY STRAIT JACKET UPON THE INTELLECTUAL LEADERS IN OUR COLLEGES
AND UNIVERSITIES WOULD IMPERIL THE FUTURE OF OUR NATION.  NO FIELD OF
EDUCATION IS SO THOROUGHLY COMPREHENDED BY MAN THAT NEW DISCOVERIES
CANNOT YET BE MADE.  PARTICULARLY IS THAT TRUE IN THE SOCIAL SCIENCES,
WHERE FEW, IF ANY, PRINCIPLES ARE ACCEPTED AS ABSOLUTES.  SCHOLARSHIP
CANNOT FLOURISH IN AN ATMOSPHERE OF SUSPICION AND DISTRUST.  TEACHERS
AND STUDENTS MUST ALWAYS REMAIN FREE TO INQUIRE, TO STUDY AND TO
EVALUATE, TO GAIN NEW MATURITY AND UNDERSTANDING; OTHERWISE OUR
CIVILIZATION WILL STAGNATE AND DIE. 

EQUALLY MANIFEST AS A FUNDAMENTAL PRINCIPLE OF A DEMOCRATIC SOCIETY
IS POLITICAL FREEDOM OF THE INDIVIDUAL.  OUR FORM OF GOVERNMENT IS
BUILT ON THE PREMISE THAT EVERY CITIZEN SHALL HAVE THE RIGHT TO ENGAGE
IN POLITICAL EXPRESSION AND ASSOCIATION.  THIS RIGHT WAS ENSHRINED IN
THE FIRST AMENDMENT OF THE BILL OF RIGHTS.  EXERCISE OF THESE BASIC
FREEDOMS IN AMERICA HAS TRADITIONALLY BEEN THROUGH THE MEDIA OF
POLITICAL ASSOCIATIONS.  ANY INTERFERENCE WITH THE FREEDOM OF A PARTY
IS SIMULTANEOUSLY AN INTERFERENCE WITH THE FREEDOM OF ITS ADHERENTS. 
ALL POLITICAL IDEAS CANNOT AND SHOULD NOT BE CHANNELED INTO THE
PROGRAMS OF OUR TWO MAJOR PARTIES.  HISTORY HAS AMPLY PROVED THE VIRTUE
OF POLITICAL ACTIVITY BY MINORITY, DISSIDENT GROUPS, WHO INNUMERABLE
TIMES HAVE BEEN IN THE VANGUARD OF DEMOCRATIC THOUGHT AND WHOSE
PROGRAMS WERE ULTIMATELY ACCEPTED.  MERE UNORTHODOXY OR DISSENT FROM
THE PREVAILING MORES IS NOT TO BE CONDEMNED.  THE ABSENCE OF SUCH
VOICES WOULD BE A SYMPTOM OF GRAVE ILLNESS IN OUR SOCIETY. 

NOTWITHSTANDING THE UNDENIABLE INPORTANCE OF FREEDOM IN THE AREAS,
THE SUPREME COURT OF NEW HAMSHIRE DID NOT CONSIDER THAT THE ABRIDGMENT
OF PETITIONER'S RIGHTS UNDER THE CONSTITUTION VITIATED THE
INVESTIGATION.  IN THE VIEW OF THAT COURT, "THE ANSWER LIES IN A
DETERMINATION OF WHETHER THE OBJECT OF THE LEGISLATIVE INVESTIGATION
UNDER CONSIDERATION IS SUCH AS TO JUSTIFY THE RESTRICTION THEREBY
IMPOSED UPON THE DEFENDANT'S LIBERTIES."  100 N.H., AT 113-114, 121
A.2D, AT 791-792.  IT FOUND SUCH JUSTIFICATION IN THE LEGISLATURE'S
JUDGMENT, EXPRESSED BY ITS AUTHORIZING RESOLUTION, THAT THERE EXISTS A
POTENTIAL MENACE FROM THOSE WHO WOULD OVERTHROW THE GOVERNMENT BY FORCE
AND VIOLENCE.  THAT COURT CONCLUDED THAT THE NEED FOR THE LEGISLATURE
TO BE INFORMED ON SO ELEMENTAL A SUBJECT AS THE SELF-PRESERVATION OF
GOVERNMENT OUTWEIGHED THE DEPRIVATION OF CONSTITUTIONAL RIGHTS THAT
OCCURRED IN THE PROCESS. 

WE DO NOT NOW CONCEIVE OF ANY CIRCUMSTANCE WHEREIN A STATE INTEREST
WOULD JUSTIFY INFRINGEMENT OF RIGHTS IN THESE FIELDS.  BUT WE DO NOT
NEED TO REACH SUCH FUNDAMENTAL QUESTIONS OF STATE POWER TO DECIDE THIS
CASE.  THE STATE SUPREME COURT ITSELF RECOGNIZED THAT THERE WAS A
WEAKNESS IN ITS CONCLUSION THAT THE MENACE OF FORCIBLE OVERTHROW OF THE
GOVERNMENT JUSTIFIED SACRIFICING CONSTITUTIONAL RIGHTS.  THERE WAS A
MISSING LINK IN THE CHAIN OF REASONING.  THE SYLLOGISM WAS NOT
COMPLETE.  THERE WAS NOTHING TO CONNECT THE QUESTIONING OF PETITIONER
WITH THIS FUNDAMENTAL INTEREST OF THE STATE.  PETITIONER HAD BEEN
INTERROGATED BY A ONE-MAN LEGISLATIVE COMMITTEE, NOT BY THE LEGISLATURE
ITSELF.  THE RELATIONSHIP OF THE COMMITTEE TO THE FULL ASSEMBLY IS
VITAL, THEREFORE, AS REVEALING THE RELATIONSHIP OF THE QUESTIONING TO
THE STATE INTEREST. 

IN LIGHT OF THIS, THE STATE COURT EMPHASIZED A FACTOR IN THE
AUTHORIZING RESOLUTION WHICH CONFINED THE INQUIRIES WHICH THE ATTORNEY
GENERAL MIGHT UNDERTAKE TO THE OBJECT OF THE INVESTIGATION.  THAT
LIMITATION WAS THOUGH TO STEM FROM THE AUTHORIZING RESOLUTION'S
CONDITION PRECEDENT TO THE INSTITUTION OF ANY INQUIRY.  THE NEW
HAMPSHIRE LEGISLATURE SPECIFIED THAT THE ATTORNEY GENERAL SHOULD ACT
ONLY WHEN HE HAD INFORMATION WHICH "  ...  IN HIS JUDGMENT MAY BE
REASONABLE OR RELIABLE."  THE STATE COURT CONSTRUED THIS TO MEAN THAT
THE ATTORNEY GENERAL MUST HAVE SOMETHING LIKE PROBABLE CAUSE FOR
CONDUCTING A PARTICULAR INVESTIGATION.  IT IS NOT LIKELY THAT THIS
DEVICE WOULD PROVE AN ADEQUATE SAFEGUARD AGAINST UNWARRANTED
INQUIRIES.  THE LEGISLATURE HAS SPECIFIED THAT THE DETERMINATION OF THE
NECESSITY FOR INQUIRY SHALL BE LEFT IN THE JUDGMENT OF THE
INVESTIGATOR.  IN THIS CASE, THE RECORD DOES NOT REVEAL WHAT REASONABLE
OR RELIABLE INFORMATION LED THE ATTORNEY GENERAL TO QUESTION
PETITIONER.  THE STATE COURT RELIED UPON THE ATTORNEY GENERAL'S
DESCRIPTION OF PRIOR INFORMATION THAT HAD COME INTO HIS POSSESSION. 
(FN13) 

THE RESPECTIVE ROLES OF THE LEGISLATURE AND THE INVESTIGATOR THUS
REVEALED ARE OF CONSIDERABLE SIGNIFICANCE TO THE ISSUE BEFORE US.  IT
IS EMINENTLY CLEAR THAT THE BASIC DISCRETION OF DETERMINING THE
DIRECTION OF THE LEGISLATIVE INQUIRY HAS BEEN TURNED OVER TO THE
INVESTIGATIVE AGENCY.  THE ATTORNEY GENERAL HAS BEEN GIVEN SUCH A
SWEEPING AND UNCERTAIN MANDATE THAT IT IS HIS DECISION WHICH PICKS OUT
THE SUBJECTS THAT WILL BE PURSUED, WHAT WITNESSES WILL BE SUMMONED AND
WHAT QUESTIONS WILL BE ASKED.  IN THIS CIRCUMSTANCE, IT CANNOT BE
STATED AUTHORITATIVELY THAT THE LEGISLATURE ASKED THE ATTORNEY GENERAL
TO GATHER THE KIND OF FACTS COMPRISED IN THE SUBJECTS UPON WHICH
PETITIONER WAS INTERROGATED. 

INSTEAD OF MAKING KNOWN THE NATURE OF THE DATA IT DESIRED, THE
LEGISLATURE HAS INSULATED ITSELF FROM THOSE WITNESSES WHOSE RIGHTS MAY
BE VITALLY AFFECTED BY THE INVESTIGATION.  INCORPORATING BY REFERENCE
PROVISIONS FROM ITS SUBVERSIVE ACTIVITIES ACT, IT HAS TOLD THE ATTORNEY
GENERAL, IN EFFECT TO SCREEN THE CITIZENRY OF NEW HAMPSHIRE TO BRING TO
LIGHT ANYONE WHO FITS INTO THE EXPANSIVE DEFINITIONS. 

WITHIN THE VERY BROAD AREA THUS COMMITTED TO THE DISCRETION OF THE
ATTORNEY GENERAL THERE MAY BE MANY FACTS WHICH THE LEGISLATURE MIGHT
FIND USEFUL.  THERE WOULD ALSO BE A GREAT DEAL OF DATA WHICH THAT
ASSEMBLY WOULD NOT WANT OR NEED.  IN THE CLASSES OF INFORMATION THAT
THE LEGISLATURE MIGHT DEEM IT DESIRABLE TO HAVE, THERE WILL BE SOME
WHICH IT COULD NOT VALIDLY ACQUIRE BECAUSE OF THE EFFECT UPON THE
CONSTITUTIONAL RIGHTS OF INDIVIDUAL CITIZENS.  SEPARATING THE WHEAT
FROM THE CHAFF, FROM THE STANDPOINT OF THE LEGISLATURE'S OBJECT, IS THE
LEGISLATURE'S RESPONSIBILITY BECAUSE IT ALONE CAN MAKE THAT JUDGMENT. 
IN THIS CASE, THE NEW HAMPSHIRE LEGISLATURE HAS DELEGATED THAT TASK TO
THE ATTORNEY GENERAL. 

AS A RESULT, NEITHER WE NOR THE STATE COURTS HAVE ANY ASSURANCE THAT
THE QUESTIONS PETITIONER REFUSED TO ANSWER FALL INTO A CATEGORY OF
MATTERS UPON WHICH THE LEGISLATURE WANTED TO BE INFORMED WHEN IT
INITIATED THIS INQUIRY.  THE JUDICIARY ARE THUS PLACED IN AN UNTENABLE
POSITION.  LACKING EVEN THE ELEMENTARY FACT THAT THE LEGISLATURE WANTS
CERTAIN QUESTIONS ANSWERED AND RECOGNIZING THAT PETITIONER'S
CONSTITUTIONAL RIGHTS ARE IN JEOPARDY, WE ARE ASKED TO APPROVE OR
DISAPPROVE HIS INCARCERATION FOR CONTEMPT. 

IN OUR VIEW, THE ANSWER IS CLEAR.  NO ONE WOULD DENY THAT THE
INFRINGEMENT OF CONSTITUTIONAL RIGHTS OF INDIVIDUALS WOULD VIOLATE THE
GUARANTEE OF DUE PROCESS WHERE NO STATE INTEREST UNDERLIES THE STATE
ACTION.  THUS, IF THE ATTORNEY GENERAL'S INTERROGATION OF PETITIONER
WERE IN FACT WHOLLY UNRELATED TO THE OBJECT OF THE LEGISLATURE IN
AUTHORIZING THE INQUIRY, THE DUE PROCESS CLAUSE WOULD PRECLUDE THE
ENDANGERING OF CONSTITUTIONAL LIBERTIES.  WE BELIEVE THAT AN EQUIVALENT
SITUATION IS PRESENTED IN THIS CASE.  THE LACK OF ANY INDICATIONS THAT
THE LEGISLATURE WANTED THE INFORMATION THE ATTORNEY GENERAL ATTEMPTED
TO ELICIT FROM PETITIONER MUST BE TREATED AS THE ABSENCE OF AUTHORITY. 
IT FOLLOWS THAT THE USE OF THE CONTEMPT POWER, NOTWITHSTANDING THE
INTERFERENCE WITH CONSTITUTIONAL RIGHTS, WAS NOT IN ACCORDANCE WITH THE
DUE PROCESS REQUIREMENTS OF THE FOURTEENTH AMENDMENT. 

THE CONCLUSION THAT WE HAVE REACHED IN THIS CASE IS NOT GROUNDED UPON
THE DOCTRINE OF SEPARATION OF POWERS.  IN THE FEDERAL GOVERNMENT, IT IS
CLEAR THAT THE CONSTITUTION HAS CONFERRED THE POWERS OF GOVERNMENT UPON
THREE MAJOR BRANCHES:  THE EXECUTIVE, THE LEGISLATIVE AND THE
JUDICIAL.  NO CONTENTION HAS BEEN MADE BY PETITIONER THAT THE NEW
HAMPSHIRE LEGISLATURE, BY THIS INVESTIGATION, ARROGATED TO ITSELF
EXECUTIVE OR JUDICIAL POWERS.  WE ACCEPT THE FINDING OF THE STATE
SUPREME COURT THAT THE EMPLOYMENT OF THE ATTORNEY GENERAL AS THE
INVESTIGATING COMMITTEE DOES NOT ALTER THE LEGISLATIVE NATURE OF THE
PROCEEDINGS.  MOREOVER, THIS COURT HAS HELD THAT THE CONCEPT OF
SEPARATION OF POWERS EMBODIED IN THE UNITED STATES CONSTITUTION IS NOT
MANDATORY IN STATE GOVERNMENTS.  DREYER V. ILLINOIS, 187 U.S. 71; BUT
CF. TENNEY V. BRANDHOVE, 341 U.S. 367, 378.  OUR CONCLUSION DOES REST
UPON A SEPARATION OF THE POWER OF A STATE LEGISLATURE TO CONDUCT
INVESTIGATIONS FROM THE RESPONSIBILITY TO DIRECT THE USE OF THAT POWER
INSOFAR AS THAT SEPARATION CAUSES A DEPRIVATION OF THE CONSTITUTIONAL
RIGHTS OF INDIVIDUALS AND A DENIAL OF DUE PROCESS OF LAW.    THE
JUDGMENT OF THE SUPREME COURT OF NEW HAMPSHIRE IS REVERSED. 

FN1  N.H. LAWS 1951, C. 193; NOW N.H. REV. STAT. ANN., 1955, C. 588,
SECS. 1-16. 

FN2  N.H. LAWS 1953, C. 307. 

FN3  THE AUTHORITY OF THE ATTORNEY GENERAL WAS CONTINUED FOR ANOTHER
TWO-YEAR PERIOD BY N.H. LAWS 1955, CC. 197, 340. 

FN4 "HAVING DETERMINED THAT AN INVESTIGATION SHOULD BE CONDUCTED
CONCERNING A PROPER SUBJECT OF ACTION BY IT, THE LEGISLATURE'S CHOICE
OF THE ATTORNEY GENERAL AS ITS INVESTIGATING COMMITTEE, INSTEAD OF A
COMMITTEE OF ITS OWN MEMBERS OR A SPECIAL BOARD OR COMMISSION, WAS NOT
IN AND OF ITSELF DETERMINATIVE OF THE NATURE OF THE INVESTIGATION.  HIS
POSITION AS THE CHIEF LAW ENFORCEMENT OFFICER OF THE STATE DID NOT
TRANSFORM THE INQUIRY WHICH WAS OTHERWISE LEGISLATIVE INTO EXECUTIVE
ACTION."  NELSON V. WYMAN, 99 N.H. 33, 38, 105 A.2D 756, 762-763. 

THE ATTORNEY GENERAL OF NEW HAMPSHIRE IS APPOINTED TO OFFICE BY THE
GOVERNOR AND THE STATE COUNCIL, A GROUP OF FIVE PERSONS WHO SHARE SOME
OF THE EXECUTIVE RESPONSIBILITIES IN THE STATE GOVERNMENT.  THE
PRINCIPAL DUTIES OF THE ATTORNEY GENERAL ARE SET FORTH IN N.H. REV.
STAT. ANN., 1955, C. 7, SECS. 6-11.  HE REPRESENTS THE STATE IN ALL
CASES BEFORE THE STATE SUPREME COURT.  HE PROSECUTES ALL CRIMINAL CASES
IN WHICH THE ACCUSED IS CHARGED WITH AN OFFENSE PUNISHABLE BY TWENTY
FIVE YEARS IN PRISON OR MORE.  ALL OTHER CRIMINAL CASES ARE UNDER HIS
GENERAL SUPERVISION.  HE GIVES OPINIONS ON QUESTIONS OF LAW TO THE
LEGISLATURE, OR TO STATE BOARDS, DEPARTMENTS, COMMISSIONS, OFFICERS,
ETC., ON QUESTIONS RELATING TO THEIR OFFICIAL DUTIES. 

FN5  "WHENEVER ANY OFFICIAL OR BOARD IS GIVEN THE POWER TO SUMMON
WITNESSES AND TAKE TESTIMONY, BUT HAS NOT THE POWER TO PUNISH FOR
CONTEMPT, AND ANY WITNESS REFUSES TO OBEY SUCH SUMMONS, EITHER AS TO
HIS APPEARANCE OR AS TO THE PRODUCTION OF THINGS SPECIFIED IN THE
SUMMONS, OR REFUSES TO TESTIFY OR TO ANSWER ANY QUESTION, A PETITION
FOR AN ORDER TO COMPEL HIM TO TESTIFY OR HIS COMPLIANCE WITH THE
SUMMONS MAY BE FILED IN THE SUPERIOR COURT, OR WITH SOME JUSTICE
THEREOF."  N.H. REV. STAT. ANN., 1955, C. 491, SEC. 19.  "UPON SUCH
PETITION THE COURT OR JUSTICE SHALL HAVE AUTHORITY TO PROCEED IN THE
MATTER AS THOUGH THE ORIGINAL PROCEEDING HAD BEEN IN THE COURT, AND MAY
MAKE ORDERS AND IMPOSE PENALTIES ACCORDINGLY."  ID., SEC. 20.  SEE
STATE V. UPHAUS, 100 N.H. 1, 116 A.2D 887. 

FN6  "THOSE CALLED TO TESTIFY BEFORE THIS AND OTHER SIMILAR
INVESTIGATIONS CAN BE CLASSIFIED IN THREE CATEGORIES. 

"FIRST THERE ARE COMMUNISTS AND THOSE WHO HAVE REASON TO BELIEVE THAT
EVEN IF THEY ARE NOT COMMUNISTS THEY HAVE BEEN ACCUSED OF BEING AND ARE
IN DANGER OF HARASSMENT AND PROSECUTION. 

"SECOND, THERE ARE THOSE WHO APPROVE OF THE PURPOSES AND METHODS OF
THESE INVESTIGATIONS. 

"THIRD, THERE ARE THOSE WHO ARE NOT COMMUNISTS AND DO NOT BELIEVE
THEY ARE IN DANGER OF BEING PROSECUTED, BUT WHO YET DEEPLY DISAPPROVE
OF THE PURPOSES AND METHODS OF THESE INVESTIGATIONS. 

"THE FIRST GROUP WILL NATURALLY, AND I THINK WHOLLY JUSTIFIABLY,
PLEAD THE CONSTITUTIONAL PRIVILEGE OF NOT BEING WITNESSES AGAINST
THEMSELVES. 

"THE SECOND GROUP WILL EQUALLY NATURALLY BE COOPERATIVE WITNESSES. 

"THE THIRD GROUP IS FACED WITH AN EXTREMELY DIFFICULT DILEMMA.  I
KNOW BECAUSE I BELONG TO THIS THIRD GROUP, AND I HAVE BEEN STRUGGLING
WITH ITS PROBLEMS FOR MANY WEEKS NOW.  I WOULD LIKE TO EXPLAIN WHAT THE
NATURE OF THAT DILEMMA IS.  I THINK IT IS IMPORTANT THAT BOTH THOSE
CONDUCTING THESE INQUIRIES AND THE PUBLIC SHOULD UNDERSTAND. 

"IT IS OFTEN SAID:  IF A PERSON IS NOT A COMMUNIST AND HAS NOTHING TO
FEAR, WHY SHOULD HE NOT ANSWER WHATEVER QUESTIONS ARE PUT TO HIM AND BE
DONE WITH IT?  THE ANSWER, OF COURSE, IS THAT SOME OF US BELIEVE THESE
INVESTIGATIONS ARE EVIL AND DANGEROUS, AND WE DO NOT WANT TO GIVE OUR
APPROVAL TO THEM, EITHER TACITLY OR OTHERWISE.  ON THE CONTRARY, WE
WANT TO OPPOSE THEM TO THE BEST OF OUR ABILITY AND PERSUADE OTHERS TO
DO LIKEWISE, WITH THE HOPE OF EVENTUALLY ABOLISHING THEM ALTHOGETHER. 

"OUR REASONS FOR OPPOSING THESE INVESTIGATIONS ARE NOT CAPTIOUS OR
TRIVIAL.  THEY HAVE DEEP ROOTS IN PRINCIPLE AND CONSCIENCE.  LET ME
EXPLAIN WITH REFERENCE TO THE PRESENT NEW HAMPSHIRE INVESTIGATION.  THE
OFFICIAL PURPOSE OF THE INQUIRY IS TO UNCOVER AND LAY THE BASIS FOR THE
PROSECUTION OF PERSONS WHO IN ONE WAY OR ANOTHER PROMOTE THE FORCIBLE
OVERTHROW OF CONSTITUTIONAL FORMS OF GOVERNMENT.  LEAVING ASIDE THE
QUESTION OF THE CONSTITUTIONALITY OF THE INVESTIGATION, WHICH IS NOW
BEFORE THE COURTS, I THINK IT MUST BE PLAIN TO ANY REASONABLE PERSON
WHO IS AT ALL WELL INFORMED ABOUT CONDITIONS IN NEW HAMPSHIRE TODAY
THAT STRICT ADHERENCE TO THIS PURPOSE WOULD LEAVE LITTLE ROOM FOR
INVESTIGATION.  IT IS OBVIOUS ENOUGH THAT THERE ARE FEW RADICALS OR
DISSENTERS OF ANY KIND IN NEW HAMPSHIRE; AND IF THERE ARE ANY WHO
ADVOCATE USE OF FORCE AND VIOLENCE, THEY MUST BE ISOLATED CRACKPOTS WHO
ARE NO DANGER TO ANYONE, LEAST OF ALL TO THE CONSTITUTIONAL FORM OF
GOVERNMENT OF STATE AND NATION.  THE ATTORNEY GENERAL SHOULD BE ABLE TO
CHECK THESE FACTS QUICKLY AND ISSUE A REPORT SATISFYING THE MANDATE
LAID UPON HIM BY THE LEGISLATURE. 

"BUT THIS IS NOT WHAT HE HAS DONE.  WE DO NOT KNOW THE WHOLE STORY,
BUT ENOUGH HAS COME OUT TO SHOW THAT THE ATTORNEY GENERAL HAS ISSUED A
CONSIDERABLE NUMBER OF SUBPOENAS AND HAS HELD HEARINGS IN VARIOUS PARTS
OF THE STATE.  AND SO FAR AS THE AVAILABLE INFORMATION ALLOWS US TO
JUDGE, MOST OF THOSE SUBPOENAED HAVE FALLEN INTO ONE OR BOTH OF TWO
GROUPS:  FIRST PROFESSORS AT DARTMOUTH AND THE UNIVERSITY OF NEW
HAMPSHIRE WHO HAVE GAINED A REPUTATION FOR LIBERAL OR OTHERWISE
UNORTHODOX VIEWS, AND, SECOND, PEOPLE WHO HAVE BEEN ACTIVE IN THE
PROGRESSIVE PARTY.  IT SHOULD BE SPECIALLY NOTED THAT WHATEVER MAY BE
THOUGHT OF THE PROGRESSIVE PARTY IN ANY OTHER RESPECT, IT WAS CERTAINLY
NOT DEVOTED TO VIOLENT OVERTHROW OF CONSTITUTIONAL FORMS OF GOVERNMENT
BUT ON THE CONTRARY TO EFFECTING REFORMS THROUGH THE VERY DEMOCRATIC
PROCEDURES WHICH ARE THE ESSENCE OF CONSTITUTIONAL FORMS OF
GOVERNMENT. 

"THE PATTERN I HAVE DESCRIBED IS NO ACCIDENT.  WHATEVER THEIR
OFFICIAL PURPOSE, THESE INVESTIGATIONS ALWAYS END UP BY INQUIRING INTO
THE POLITICS, IDEAS, AND BELIEFS OF PEOPLE WHO HOLD WHAT ARE, FOR THE
TIME BEING, UNPOPULAR VIEWS.  THE FEDERAL HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES, FOR EXAMPLE, IS SUPPOSED TO INVESTIGATE VARIOUS
KINDS OF PROPAGANDA AND HAS NO OTHER MANDATE WHATEVER.  OVER THE YEARS,
HOWEVER, IT HAS SPENT ALMOST NO TIME INVESTIGATING PROPAGANDA AND HAS
DEVOTED ALMOST ALL OF ITS ENERGIES TO 'EXPOSING' PEOPLE AND THEIR
IDEAS, THEIR AFFILIATIONS, THEIR ASSOCIATIONS.  SIMILARLY, THIS NEW
HAMPSHIRE INVESTIGATION IS SUPPOSED TO BE CONCERNED WITH VIOLENT
OVERTHROW OF GOVERNMENT, BUT IT IS ACTUALLY TURNING OUT TO BE CONCERNED
WITH WHAT FEW MANIFESTATIONS OF POLITICAL DISSENT HAVE MADE THEMSELVES
FELT IN THE STATE IN RECENT YEARS. 

"IF ALL THIS IS SO, AND IF THE VERY FIRST PRINCIPLE OF THE AMERICAN
CONSTITUTIONAL FORM OF GOVERNMENT IS POLITICAL FREEDOM - WHICH I TAKE
TO INCLUDE FREEDOMS OF SPEECH, PRESS, ASSEMBLY, AND ASSOCIATION - THEN
I DO NOT SEE HOW IT CAN BE DENIED THAT THESE INVESTIGATIONS ARE A GRAVE
DANGER TO ALL THAT AMERICANS HAVE ALWAYS CLAIMED TO CHERISH.  NO RIGHTS
ARE GENUINE IF A PERSON, FOR EXERCISING THEM, CAN BE HAULED UP BEFORE
SOME TRIBUNAL AND FORCED UNDER PENALTIES OF PERJURY AND CONTEMPT TO
ACCOUNT FOR HIS IDEAS AND CONDUCT. 

"LET US NOW RETURN TO THE PROBLEM OF THE WITNESS WHO WOULD HAVE
NOTHING TO FEAR FROM BEING WHAT IS NOWADAYS STYLED A 'FRIENDLY'
WITNESS, BUT WHO FEELS DEEPLY THAT TO FOLLOW SUCH A COURSE WOULD BE A
BETRAYAL OF HIS PRINCIPLES AND REPUGNANT TO HIS CONSCIENCE.  WHAT OTHER
COURSES ARE OPEN TO HIM? 

"HE CAN CLAIM THE PRIVILEGE NOT TO BE A WITNESS AGAINST HIMSELF AND
THUS AVOID A HATEFUL INQUISITION.  I RESPECT THE DECISION OF THOSE WHO
ELECT TO TAKE THIS COURSE.  MY OWN REASON FOR REJECTING IT IS THAT,
WITH PUBLIC OPINION IN ITS PRESENT STATE, THE EXERCISE OF THE PRIVILEGE
IS ALMOST CERTAIN TO BE WIDELY MISINTERPRETED.  ONE OF THE NOBLEST AND
MOST PRECIOUS GUARANTEES OF FREEDOM, WON IN THE COURSE OF BITTER
STRUGGLES AND TERRIBLE SUFFERING, HAS BEEN DISTORTED IN OUR OWN DAY TO
MEAN A CONFESSION OF GUILT, THE MORE SINISTER BECAUSE UNDEFINED AND
INDEED UNDEFINABLE.  IT IS UNFORTUNATE, BUT TRUE, THAT THE PUBLIC AT
LARGE HAS ACCEPTED THIS DISTORTION AND WILL SCARCELY LISTEN TO THOSE
WHO HAVE INVOKED THE PRIVILEGE. 

"ALTERNATIVELY, THE WITNESS CAN SEEK TO UPHOLD HIS PRINCIPLES AND
MAINTAIN HIS INTEGRITY, NOT BY CLAIMING THE PROTECTION OF THE FIFTH
AMENDMENT (OR THE FIFTEENTH ARTICLE OF THE NEW HAMPSHIRE BILL OF
RIGHTS), BUT BY CONTESTING THE LEGITIMACY OF OFFENSIVE QUESTIONS ON
OTHER CONSTITUTIONAL AND LEGAL GROUNDS. 

"JUST NOW FAR THE FIRST AMENDMENT LIMITS THE RIGHT OF LEGISLATIVE
INQUIRY HAS NOT BEEN SETTLED.  THE SUPREME COURT OF THE UNITED STATES
IS AT THIS VERY MOMENT CONSIDERING A CASE (THE EMSPAK CASE) WHICH MAY
DO MUCH TO SETTLE THE QUESTION.  BUT EVEN BEFORE THE COURT HAS HANDED
DOWN ITS DECISION IN THE EMSPAK CASE, IT IS QUITE CERTAIN THAT THE
FIRST AMENDMENT DOES PLACE SOME LIMITATIONS ON THE POWER OF
INVESTIGATION, AND IT IS ALWAYS OPEN TO A WITNESS TO CHALLENGE A
QUESTION ON THE GROUND THAT IT TRANSGRESSES THESE LIMITATIONS AND, IF
NECESSARY, TO TAKE THE ISSUE TO THE COURTS FOR DECISION. 

"MOREOVER, A WITNESS MAY NOT BE REQUIRED TO ANSWER QUESTIONS UNLESS
THEY ARE 'PERTINENT TO THE MATTER UNDER INQUIRY (THE WORDS ARE THOSE OF
THE UNITED STATES SUPREME COURT). 

"WHAT IS THE 'MATTER UNDER INQUIRY' IN THE PRESENT INVESTIGATION? 
ACCORDING TO THE ACT OF THE NEW HAMPSHIRE LEGISLATURE DIRECTING THE
INVESTIGATION, ITS PURPOSE IS TWOFOLD:  (1) 'TO MAKE FULL AND COMPLETE
INVESTIGATION WITH RESPECT TO VIOLATIONS OF THE SUBVERSIVE ACTIVITIES
ACT OF 1951,' AND (2) 'TO DETERMINE WHETHER SUBVERSIVE PERSONS AS
DEFINED IN SAID ACT ARE PRESENTLY LOCATED WITHIN THIS STATE.' 

"I HAVE STUDIED THE SUBVERSIVE ACTIVITIES ACT OF 1951 WITH CARE, AND
I AM GLAD TO VOLUNTEER THE INFORMATION THAT I HAVE ABSOLUTELY NO
KNOWLEDGE OF ANY VIOLATIONS OF ANY OF ITS PROVISIONS; FURTHER, THAT I
HAVE NO KNOWLEDGE OF SUBVERSIVE PERSONS PRESENTLY LOCATED WITHIN THE
STATE. 

"THAT THESE STATEMENTS MAY CARRY FULL CONVICTION, I AM PREPARED TO
ANSWER CERTAIN QUESTIONS ABOUT MYSELF, THOUGH IN DOING SO I DO NOT MEAN
TO CONCEDE THE RIGHT TO ASK THEM.  I AM ALSO PREPARED TO DISCUSS MY
VIEWS RELATING TO THE USE OF FORCE AND VIOLENCE TO OVERTHROW
CONSTITUTIONAL FORMS OF GOVERNMENT. 

"BUT I SHALL RESPECTFULLY DECLINE TO ANSWER QUESTIONS CONCERNING
IDEAS, BELIEFS, AND ASSOCIATIONS WHICH COULD NOT POSSIBLY BE PERTINENT
TO THE MATTER HERE UNDER INQUIRY AND/OR WHICH SEEM TO ME TO INVADE THE
FREEDOMS GUARANTEED BY THE FIRST AMENDMENT TO THE UNITED STATES
CONSTITUTION (WHICH, OF COURSE, APPLIES EQUALLY TO THE SEVERAL
STATES)." 

FN7  THE PROGRESSIVE PARTY OFFERED A SLATE OF CANDIDATES FOR NATIONAL
OFFICE IN THE 1948 PRESIDENTIAL ELECTION.  HENRY A. WALLACE, FORMER
VICE PRESIDENT OF THE UNITED STATES, WAS THE PARTY'S SELECTION FOR THE
PRESIDENCY.  GLEN TAYLOR, FORMER UNITED STATES SENATOR, WAS THE VICE
PRESIDENTIAL NOMINEE OF THE PARTY.  NATIONWIDE, THE PARTY RECEIVED A
POPULAR VOTE OF 1,156,103.   OF THIS TOTAL, 1,970 VOTES FOR PROGRESSIVE
PARTY CANDIDATES WERE CAST IN NEW HAMPSHIRE.  STATISTICS OF THE
PRESIDENTIAL AND CONGRESSIONAL ELECTION OF NOVEMBER 2, 1948, PP. 24, 48
49. 

FN8  SEE NOTE 5, SUPRA. 

FN9  THE COURT MADE A GENERAL RULING THAT QUESTIONS CONCERNING THE
OPINIONS OR BELIEFS OF THE WITNESS WERE NOT PERTINENT.  NEVERTHELESS,
IT DID PROPOUND TO THE WITNESS THE ONE QUESTION ABOUT HIS BELIEF IN
COMMUNISM. 

FN10  SEE NOTE 1, SUPRA. 

FN11  "'SUBVERSIVE PERSON' MEANS ANY PERSON WHO COMMITS, ATTEMPTS TO
COMMIT, OR AIDS IN THE COMMISSION, OR ADVOCATES, ABETS, ADVISES OR
TEACHES, BY ANY MEANS ANY PERSON TO COMMIT, ATTEMPT TO COMMIT, OR AID
IN THE COMMISSION OF ANY ACT INTENDED TO OVERTHROW, DESTROY OR ALTER,
OR TO ASSIST IN THE OVERTHROW, DESTRUCTION OR ALTERATION OF, THE
CONSTITUTIONAL FORM OF THE GOVERNMENT OF THE UNITED STATES, OR OF THE
STATE OF NEW HAMPSHIRE, OR ANY POLITICAL SUBDIVISION OF EITHER OF THEM,
BY FORCE, OR VIOLENCE; OR WHO IS A MEMBER OF A SUBVERSIVE ORGANIZATION
OR A FOREIGN SUBVERSION ORGANIZATION."  N.H.  REV. STAT. ANN., 1955, C.
588, SEC. 1. 

FN12  "FOR THE PURPOSE OF THIS CHAPTER 'ORGANIZATION' MEANS AN
ORGANIZATION, CORPORATION, COMPANY, PARTNERSHIP, ASSOCIATION, TRUST,
FOUNDATION, FUND, CLUB, SOCIETY, COMMITTEE, POLITICAL PARTY, OR ANY
GROUP OF PERSONS, WHETHER OR NOT INCORPORATED, PERMANENTLY OR
TEMPORARILY ASSOCIATED TOGETHER FOR JOINT ACTION OR ADVANCEMENT OF
VIEWS ON ANY SUBJECT OR SUBJECTS. 

"'SUBVERSIVE ORGANIZATION' MEANS ANY ORGANIZATION WHICH ENGAGES IN OR
ADVOCATES, ABETS, ADVISES, OR TEACHES, OR A PURPOSE OF WHICH IS TO
ENGAGE IN OR ADVOCATE, ABET, ADVISE, OR TEACH ACTIVITIES INTENDED TO
OVERTHROW, DESTROY OR ALTER, OR TO ASSIST IN THE OVERTHROW, DESTRUCTION
OR ALTERATION OF, THE CONSTITUTIONAL FORM OF THE GOVERNMENT OF THE
UNITED STATES, OR OF THE STATE OF NEW HAMPSHIRE, OR OF ANY POLITICAL
SUBDIVISION OF EITHER OF THEM, BY FORCE, OR VIOLENCE."  IBID. 

FN13  THE STATE SUPREME COURT ILLUSTRATED THE "REASONABLE OR
RELIABLE" INFORMATION UNDERLYING THE INQUIRIES ON THE PROGRESSIVE PARTY
BY QUOTING FROM A REMARK MADE BY THE ATTORNEY GENERAL AT THE HEARING IN
ANSWER TO PETITIONER'S OBJECTION TO A LINE OF QUESTIONS.  THE ATTORNEY
GENERAL HAD DECLARED THAT HE HAD "  ...  CONSIDERABLE SWORN TESTIMONY
...  TO THE EFFECT THAT THE PROGRESSIVE PARTY IN NEW HAMPSHIRE HAS BEEN
HEAVILY INFILTRATED BY MEMBERS OF THE COMMUNIST PARTY AND THAT THE
POLICIES AND PURPOSES OF THE PROGRESSIVE PARTY HAVE BEEN DIRECTLY
INFLUENCED BY MEMBERS OF THE COMMUNIST PARTY."  100 N.H., AT 111, 121
A.2D, AT 790-791.  NONE OF THIS TESTIMONY IS A PART OF THE RECORD IN
THIS CASE.  ITS EXISTENCE AND WEIGHT WERE NOT INDEPENDENTLY REVIEWED BY
THE STATE COURTS.    THE COURT DID NOT POINT TO ANYTHING THAT SUPPORTED
THE QUESTIONING ON THE SUBJECT OF THE LECTURE.  IT STATED THAT THE
ATTORNEY GENERAL COULD INQUIRE ABOUT LECTURES ONLY IF HE "  ...
POSSESSES REASONABLE OR RELIABLE INFORMATION INDICATING THAT THE
VIOLENT OVERTHROW OF EXISTING GOVERNMENT MAY HAVE BEEN ADVOCATED OR
TAUGHT, EITHER 'KNOWINGLY AND WILFULLY' OR NOT."  100 N.H., AT 110, 121
A.2D, AT 789-790.  WHAT, IF ANYTHING, INDICATED THAT PETITIONER
KNOWINGLY OR INNOCENTLY ADVOCATED OR TAUGHT VIOLENT OVERTHROW OF
EXISTING GOVERNMENT DOES NOT APPEAR.  AT ONE POINT IN THE HEARING, THE
ATTORNEY GENERAL SAID TO PETITIONER:  "I HAVE IN THE FILE HERE A
STATEMENT FROM A PERSON WHO ATTENDED YOUR CLASS, AND I WILL READ IT IN
PART BECAUSE I DON'T WANT YOU TO THINK I AM JUST FISHING.   'HIS TALK
THIS TIME WAS ON THE INEVITABILITY OF THE SOCIALIST PROGRAM.  IT WAS A
GLOSSED-OVER INTERPRETATION OF THE MATERIALIST DIALECTIC.'"  R. 107. 
THE COURT DID NOT CITE THIS STATEMENT. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, CONCURRING IN
THE RESULT. 

FOR ME THIS IS A VERY DIFFERENT CASE FROM WATKINS V. UNITED STATES,
ANTE, P. 178.  THIS CASE COMES TO US SOLELY THROUGH THE LIMITED POWER
TO REVIEW THE ACTION OF THE STATES CONFERRED UPON THE COURT BY THE
FOURTEENTH AMENDMENT.  PETITIONER CLAIMS THAT RESPECT FOR LIBERTIES
GUARANTEED BY THE DUE PROCESS CLAUSE OF THAT AMENDMENT PRECLUDES THE
STATE OF NEW HAMPSHIRE FROM COMPELLING HIM TO ANSWER CERTAIN QUESTIONS
PUT TO HIM BY THE INVESTIGATING ARM OF ITS LEGISLATURE.  OURS IS THE
NARROWLY CIRCUMSCRIBED BUT EXCEEDINGLY DIFFICULT TASK OF MAKING THE
FINAL JUDICIAL ACCOMMODATION BETWEEN THE COMPETING WEIGHTY CLAIMS THAT
UNDERLIE ALL SUCH QUESTIONS OF DUE PROCESS. 

IN ASSESSING THE CLAIM OF THE STATE OF NEW HAMPSHIRE TO THE
INFORMATION DENIED IT BY PETITIONER, WE CANNOT CONCERN OURSELVES WITH
THE FACT THAT NEW HAMPSHIRE CHOSE TO MAKE ITS ATTORNEY GENERAL IN
EFFECT A STANDING COMMITTEE OF ITS LEGISLATURE FOR THE PURPOSE OF
INVESTIGATING THE EXTENT OF "SUBVERSIVE" ACTIVITIES WITHIN ITS BOUNDS. 
THE CASE MUST BE JUDGED AS THOUGH THE WHOLE BODY OF THE LEGISLATURE HAD
DEMANDED THE INFORMATION OF PETITIONER.  IT WOULD MAKE THE DEEPEST
INROADS UPON OUR FEDERAL SYSTEM FOR THIS COURT NOW TO HOLD THAT IT CAN
DETERMINE THE APPROPRIATE DISTRIBUTION OF POWERS AND THEIR DELEGATION
WITHIN THE FORTY-EIGHT STATES.  AS THE EARLIER MR. JUSTICE HARLAN SAID
FOR A UNANIMOUS COURT IN DREYER V. ILLINOIS, 187 U.S. 71, 84: 

"WHETHER THE LEGISLATIVE, EXECUTIVE AND JUDICIAL POWERS OF A STATE
SHALL BE KEPT ALTOGETHER DISTINCT AND SEPARATE, OR WHETHER PERSONS OR
COLLECTIONS OF PERSONS BELONGING TO ONE DEPARTMENT MAY, IN RESPECT TO
SOME MATTERS, EXERT POWERS WHICH, STRICTLY SPEAKING, PERTAIN TO ANOTHER
DEPARTMENT OF GOVERNMENT, IS FOR THE DETERMINATION OF THE STATE.  AND
ITS DETERMINATION ONE WAY OR THE OTHER CANNOT BE AN ELEMENT IN THE
INQUIRY WHETHER THE DUE PROCESS OF LAW PRESCRIBED BY THE FOURTEENTH
AMENDMENT HAS BEEN RESPECTED BY THE STATE OR ITS REPRESENTATIVES WHEN
DEALING WITH MATTERS INVOLVING LIFE OR LIBERTY." 

WHETHER THE STATE LEGISLATURE SHOULD OPERATE LARGELY BY COMMITTEES,
AS DOES THE CONGRESS, OR WHETHER COMMITTEES SHOULD BE THE EXCEPTION, AS
IS TRUE OF THE HOUSE OF COMMONS, WHETHER THE LEGISLATURE SHOULD HAVE
TWO CHAMBERS OR ONLY ONE, AS IN NEBRASKA, WHETHER THE STATE'S CHIEF
EXECUTIVE SHOULD HAVE THE PARDONING POWER, WHETHER THE STATE'S JUDICIAL
BRANCH MUST PROVIDE TRIAL BY JURY, ARE ALL MATTERS BEYOND THE REVIEWING
POWERS OF THIS COURT.  SIMILARLY, WHETHER THE ATTORNEY GENERAL OF NEW
HAMPSHIRE ACTED WITHIN THE SCOPE OF THE AUTHORITY GIVEN HIM BY THE
STATE LEGISLATURE IS A MATTER FOR THE DECISION OF THE COURTS OF THAT
STATE, AS IT IS FOR THE FEDERAL COURTS TO DETERMINE WHETHER AN AGENCY
TO WHICH CONGRESS HAS DELEGATED POWER HAS ACTED WITHIN THE CONFINES OF
ITS MANDATE.  SEE UNITED STATES V. RUMELY, 345 U.S. 41.  SANCTION OF
THE DELEGATION RESTS WITH THE NEW HAMPSHIRE SUPREME COURT, AND ITS
VALIDATION IN NELSON V. WYMAN, 99 N.H. 33, 105 A.2D 756, IS BINDING
HERE. 

PURSUANT TO AN INVESTIGATION OF SUBVERSIVE ACTIVITIES AUTHORIZED BY A
JOINT RESOLUTION OF BOTH HOUSES OF THE NEW HAMPSHIRE LEGISLATURE, THE
STATE ATTORNEY GENERAL SUBPOENAED PETITIONER BEFORE HIM ON JANUARY 8,
1954, FOR EXTENSIVE QUESTIONING.  AMONG THE MATTERS ABOUT WHICH
PETITIONER WAS QUESTIONINED WERE:  DETAILS OF HIS CAREER AND PERSONAL
LIFE, WHETHER HE WAS THEN OR EVER HAD BEEN A MEMBER OF THE COMMUNIST
PARTY, WHETHER HE HAD EVER ATTENDED ITS MEETINGS, WHETHER HE HAD EVER
ATTENDED MEETINGS THAT HE KNEW WERE ALSO ATTENDED BY PARTY MEMBERS,
WHETHER HE KNEW ANY COMMUNISTS IN OR OUT OF THE STATE, WHETHER HE KNEW
NAMED PERSONS WITH ALLEGED CONNECTIONS WITH ORGANIZATIONS EITHER ON THE
UNITED STATES ATTORNEY GENERAL'S LIST OR CITED BY THE UN-AMERICAN
ACTIVITIES COMMITTEE OF THE UNITED STATES HOUSE OF REPRESENTATIVES OR
HAD EVER ATTENDED MEETINGS WITH THEM, WHETHER HE HAD EVER TAUGHT OR
SUPPORTED THE OVERTHROW OF THE STATE BY FORCE OR VIOLENCE OR HAD EVER
KNOWN OR ASSISTED ANY PERSONS OR GROUPS THAT HAD DONE SO, WHETHER HE
HAD EVER BEEN CONNECTED WITH ORGANIZATIONS ON THE ATTORNEY GENERAL'S
LIST, WHETHER HE HAD SUPPORTED OR WRITTEN IN BEHALF OF A VARIETY OF
ALLEGEDLY SUBVERSIVE, NAMED CAUSES, CONFERENCES, PERIODICALS,
PETITIONS, AND ATTEMPTS TO RAISE FUNDS FOR THE LEGAL DEFENSE OF CERTAIN
PERSONS, WHETHER HE KNEW ABOUT THE PROGRESSIVE PARTY, WHAT POSITIONS HE
HAD HELD IN IT, WHETHER HE HAD BEEN A CANDIDATE FOR PRESIDENTIAL
ELECTOR FOR THAT PARTY, WHETHER CERTAIN PERSONS WERE IN THAT PARTY,
WHETHER COMMUNISTS HAD INFLUENCED OR BEEN MEMBERS OF THE PROGRESSIVE
PARTY, WHETHER HE HAD SPONSORED ACTIVITIES IN BEHALF OF THE CANDIDACY
OF HENRY A. WALLACE, WHETHER HE ADVOCATED REPLACING THE CAPITALIST
SYSTEM WITH ANOTHER ECONOMIC SYSTEM, WHETHER HIS CONCEPTION OF
SOCIALISM INVOLVED FORCE AND VIOLENCE, WHETHER BY HIS WRITINGS AND
ACTIONS HE HAD EVER ATTEMPTED TO ADVANCE THE SOVIET UNION'S "PROPAGANDA
LINE," WHETHER HE HAD EVER ATTENDED MEETINGS OF THE LIBERAL CLUB AT THE
UNIVERSITY OF NEW HAMPSHIRE, WHETHER THE MAGAZINE OF WHICH HE WAS CO
EDITOR WAS "A COMMUNIST-LINE PUBLICATION," AND WHETHER HE KNEW NAMED
PERSONS. 

PETITIONER ANSWERED MOST OF THESE QUESTIONS, MAKING IT VERY PLAIN
THAT HE HAD NEVER BEEN A COMMUNIST, NEVER TAUGHT VIOLENT OVERTHROW OF
THE GOVERNMENT, NEVER KNOWINGLY ASSOCIATED WITH COMMUNISTS IN THE
STATE, BUT WAS A SOCIALIST BELIEVER IN PEACEFUL CHANGE WHO HAD AT ONE
TIME BELONGED TO CERTAIN ORGANIZATIONS ON THE LIST OF THE UNITED STATES
ATTORNEY GENERAL (WHICH DID NOT INCLUDE THE PROGRESSIVE PARTY) OR CITED
BY THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE.  HE DECLINED TO ANSWER
AS IRRELEVANT OR VIOLATIVE OF FREE SPEECH GUARANTEES CERTAIN QUESTIONS
ABOUT THE PROGRESSIVE PARTY AND WHETHER HE KNEW PARTICULAR PERSONS.  HE
STATED REPEATEDLY, HOWEVER, THAT HE HAD NO KNOWLEDGE OF COMMUNISTS OR
OF COMMUNIST INFLUENCE IN THE PROGRESSIVE PARTY, AND HE TESTIFIED THAT
HE HAD BEEN A CANDIDATE FOR THAT PARTY, SIGNING THE REQUIRED LOYALTY
OATH, AND THAT HE DID NOT KNOW WHETHER AN ALLEGED COMMUNIST LEADER WAS
ACTIVE IN THE PROGRESSIVE PARTY. 

DESPITE THE EXHAUSTIVE SCOPE OF THIS INQUIRY, THE ATTORNEY GENERAL
AGAIN SUBPOENAED PETITIONER TO TESTIFY ON JUNE 3, 1954, AND THE
INTERROGATION WAS SIMILARLY SWEEPING.  PETITIONER AGAIN ANSWERED
VIRTUALLY ALL QUESTIONS, INCLUDING THOSE CONCERNING THE RELATIONSHIP OF
NAMED PERSONS TO THE COMMUNIST PARTY OR OTHER CAUSES DEEMED SUBVERSIVE
UNDER STATE LAWS, ALLEGED COMMUNIST INFLUENCE ON ALL ORGANIZATIONS WITH
WHICH HE HAD BEEN CONNECTED INCLUDING THE PROGRESSIVE PARTY, AND HIS
OWN PARTICIPATION IN ORGANIZATIONS OTHER THAN THE PROGRESSIVE PARTY AND
ITS ANTECEDENT, THE PROGRESSIVE CITIZENS OF AMERICA.  HE REFUSED,
HOWEVER, TO ANSWER CERTAIN QUESTIONS REGARDING (1) A LECTURE GIVEN BY
HIM AT THE UNIVERSITY OF NEW HAMPSHIRE, (2) ACTIVITIES OF HIMSELF AND
OTHERS IN THE PROGRESSIVE POLITICAL ORGANIZATIONS, AND (3) "OPINIONS
AND BELIEFS," INVOKING THE CONSTITUTIONAL GUARANTEES OF FREE SPEECH. 

THE ATTORNEY GENERAL THEN PETITIONED THE SUPERIOR COURT TO ORDER
PETITIONER TO ANSWER QUESTIONS IN THESE CATEGORIES.  THE COURT RULED
THAT PETITIONER HAD TO ANSWER THOSE QUESTIONS PERTAINING TO THE
LECTURES AND TO THE PROGRESSIVE PARTY AND ITS PREDECESSOR BUT NOT THOSE
OTHERWISE PERTAINING TO "OPINIONS AND BELIEFS."  UPON PETITIONER'S
REFUSAL TO ANSWER THE QUESTIONS SANCTIONED BY THE COURT, HE WAS FOUND
IN CONTEMPT OF COURT AND ORDERED COMMITTED TO THE COUNTY JAIL UNTIL
PURGED OF CONTEMPT. 

THE SUPREME COURT OF NEW HAMPSHIRE AFFIRMED THE ORDER OF THE SUPERIOR
COURT.  IT HELD THAT THE QUESTIONS AT ISSUE WERE RELEVANT AND THAT NO
CONSTITUTIONAL PROVISION PERMITTED PETITIONER TO FRUSTRATE THE STATE'S
DEMANDS.  100 N.H. 103, 121 A.2D 783. 

THE QUESTIONS THAT PETITIONER REFUSED TO ANSWER REGARDING THE
UNIVERSITY LECTURE, THE THIRD GIVEN BY HIM IN THREE YEARS AT THE
INVITATION OF THE FACULTY FOR HUMANITIES, WERE: 

"WHAT WAS THE SUBJECT OF YOUR LECTURE?" 

"DIDN'T YOU TELL THE CLASS AT THE UNIVERSITY OF NEW HAMPSHIRE ON
MONDAY, MARCH 22, 1954, THAT SOCIALISM WAS INEVITABLE IN THIS
COUNTRY?" 

"DID YOU ADVOCATE MARXISM AT THAT TIME?" 

"DID YOU EXPRESS THE OPINION, OR DID YOU MAKE THE STATEMENT AT THAT
TIME THAT SOCIALISM WAS INEVITABLE IN AMERICA?" 

"DID YOU IN THIS LAST LECTURE ON MARCH 22 OR IN ANY OF THE FORMER
LECTURES ESPOUSE THE THEORY OF DIALECTICAL MATERIALISM?" 

"I HAVE IN THE FILE HERE A STATEMENT FROM A PERSON WHO ATTENDED YOUR
CLASS, AND I WILL READ IT IN PART BECAUSE I DON'T WANT YOU TO THINK I
AM JUST FISHING.  'HIS TALK THIS TIME WAS ON THE INEVITABILITY OF THE
SOCIALIST PROGRAM.  IT WAS A GLOSSED-OVER INTERPRETATION OF THE
MATERIALIST DIALECTIC.'  NOW, AGAIN I ASK YOU THE ORIGINAL QUESTION." 

IN RESPONSE TO THE FIRST QUESTION OF THIS SERIES, PETITIONER HAD SAID
AT THE HEARING: 

"I WOULD LIKE TO SAY ONE THING IN THIS CONNECTION, MR. WYMAN.  I
STATED UNDER OATH AT MY LAST APPEARANCE THAT, AND I NOW REPEAT IT, THAT
I DO NOT ADVOCATE OR IN ANY WAY FURTHER THE AIM OF OVERTHROWING
CONSTITUTIONAL GOVERNMENT BY FORCE AND VIOLENCE.  I DID NOT SO ADVOCATE
IN THE LECTURE I GAVE AT THE UNIVERSITY OF NEW HAMPSHIRE.  IN FACT I
HAVE NEVER AT ANY TIME SO ADVOCATED IN A LECTURE ANYWHERE.  ASIDE FROM
THAT I HAVE NOTHING I WANT TO SAY ABOUT THE LECTURE IN QUESTION." 

THE NEW HAMPSHIRE SUPREME COURT, ALTHOUGH RECOGNIZING THAT SUCH
INQUIRIES "UNDOUBTEDLY INTERFERED WITH THE DEFENDANT'S FREE EXERCISE"
OF HIS CONSTITUTIONALLY GAURANTEED RIGHT TO LECTURE, JUSTIFIED THE
INTERFERENCE ON THE GROUND THAT IT WOULD OCCUR "IN THE LIMITED AREA IN
WHICH THE LEGISLATIVE COMMITTEE MAY REASONABLY BELIEVE THAT THE
OVERTHROW OF EXISTING GOVERNMENT BY FORCE AND VIOLENCE IS BEING OR HAS
BEEN TAUGHT, ADVOCATED OR PLANNED, AN AREA IN WHICH THE INTEREST OF THE
STATE JUSTIFIES THIS INTRUSION UPON CIVIL LIBERTIES."  100 N.H., AT
113, 114, 121 A.2D, AT 792.  ACCORDING TO THE COURT, THE FACTS THAT
MADE REASONABLE THE COMMITTEE'S BELIEF THAT PETITIONER HAD TAUGHT
VIOLENT OVERTHROW IN HIS LECTURE WERE THAT HE WAS A SOCIALIST WITH A
RECORD OF AFFILIATION WITH GROUPS CITED BY THE ATTORNEY GENERAL OF THE
UNITED STATES OR THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE AND THAT HE
WAS CO-EDITOR OF AN ARTICLE STATING THAT, ALTHOUGH THE AUTHORS HATED
VIOLENCE, IT WAS LESS TO BE DEPLORED WHEN USED BY THE SOVIET UNION THAN
BY CAPITALIST COUNTRIES. 

WHEN WEIGHED AGAINST THE GRAVE HARM RESULTING FROM GOVERNMENTAL
INTRUSION INTO THE INTELLECTUAL LIFE OF A UNIVERSITY, SUCH
JUSTIFICATION FOR COMPELLING A WITNESS TO DISCUSS THE CONTENTS OF HIS
LECTURE APPEARS GROSSLY INADEQUATE.  PARTICULARLY IS THIS SO WHERE THE
WITNESS HAS SWORN THAT NEITHER IN THE LECTURE NOR AT ANY OTHER TIME DID
HE EVER ADVOCATE OVERTHROWING THE GOVERNMENT BY FORCE AND VIOLENCE. 

PROGRESS IN THE NATURAL SCIENCES IS NOT REMOTELY CONFINED TO FINDINGS
MADE IN THE LABORATORY.  INSIGHTS INTO THE MYSTERIES OF NATURE ARE BORN
OF HYPOTHESIS AND SPECULATION.  THE MORE SO IS THIS TRUE IN THE PURSUIT
OF UNDERSTANDING IN THE GROPING ENDEAVORS OF WHAT ARE CALLED THE SOCIAL
SCIENCES, THE CONERN OF WHICH IS MAN AND SOCIETY.  THE PROBLEMS THAT
ARE THE RESPECTIVE PREOCCUPATIONS OF ANTHROPOLOGY, ECONOMICS, LAW,
PSYCHOLOGY, SOCIOLOGY AND RELATED AREAS OF SCHOLARSHIP ARE MERELY
DEPARTMENTALIZED DEALING, BY WAY OF MANAGEABLE DIVISION OF ANALYSIS,
WITH INTERPENETRATING ASPECTS OF HOLISTIC PERPLEXITIES.  FOR SOCIETY'S
GOOD - IF UNDERSTANDING BE AN ESSENTIAL NEED OF SOCIETY - INQUIRIES
INTO THESE PROBLEMS, SPECULATIONS ABOUT THEM, STIMULATION IN OTHERS OF
REFLECTION UPON THEM, MUST BE LEFT AS UNFETTERED AS POSSIBLE. 
POLITICAL POWER MUST ABSTAIN FROM INTRUSION INTO THIS ACTIVITY OF
FREEDOM, PURSUED IN THE INTEREST OF WISE GOVERNMENT AND THE PEOPLE'S
WELL-BEING, EXCEPT FOR REASONS THAT ARE EXIGENT AND OBVIOUSLY
COMPELLING. 

THESE PAGES NEED NOT BE BRUDENED WITH PROOF, BASED ON THE TESTIMONY
OF A CLOUD OF IMPRESSIVE WITNESSES, OF THE DEPENDENCE OF A FREE SOCIETY
ON FREE UNIVERSITIES.  THIS MEANS THE EXCLUSION OF GOVERNMENTAL
INTERVENTION IN THE INTELLECTUAL LIFE OF A UNIVERSITY.  IT MATTERS
LITTLE WHETHER SUCH INTERVENTION OCCURS AVOWEDLY OR THROUGH ACTION THAT
INEVITABLY TENDS TO CHECK THE ARDOR AND FEARLESSNESS OF SCHOLARS,
QUALITIES AT ONCE SO FRAGILE AND SO INDISPENSABLE FOR FRUITFUL ACADEMIC
LABOR.  ONE NEED ONLY TO REFER TO THE ADDRESS OF T.H. HUXLEY AT THE
OPENING OF JOHNS HOPKINS UNIVERSITY, THE ANNUAL REPORTS OF PRESIDENT A.
LAWRENCE LOWELL OF HARVARD, THE REPORTS OF THE UNIVERSITY GRANTS
COMMITTEE IN GREAT BRITAIN, AS ILLUSTRATIVE ITEMS IN A VAST BODY OF
LITERATURE.  SUFFICE IT TO QUOTE THE LATEST EXPRESSION ON THIS
SUBJECT.  IT IS ALSO PERHAPS THE MOST POIGNANT BECAUSE ITS PLEA ON
BEHALF OF CONTINUING THE FREE SPIRIT OF THE OPEN UNIVERSITIES OF SOUTH
AFRICA HAS GONE UNHEEDED.    "IN A UNIVERSITY KNOWLEDGE IS ITS OWN END,
NOT MERELY A MEANS TO AN END.  A UNIVERSITY CEASES TO BE TRUE TO ITS
OWN NATURE IF IT BECOMES THE TOOL OF CHURCH OR STATE OR ANY SECTIONAL
INTEREST.  A UNIVERSITY IS CHARACTERIZED BY THE SPIRIT OF FREE INQUIRY,
ITS IDEAL BEING THE IDEAL OF SOCRATES - 'TO FOLLOW THE ARGUMENT WHERE
IT LEADS.'  THIS IMPLIES THE RIGHT TO EXAMINE, QUESTION, MODIFY OR
REJECT TRADITIONAL IDEAS AND BELIEFS.  DOGMA AND HYPOTHESIS ARE
INCOMPATIBLE, AND THE CONCEPT OF AN IMMUTABLE DOCTRINE IS REPUGNANT TO
THE SPIRIT OF A UNIVERSITY.  THE CONCERN OF ITS SCHOLARS IS NOT MERELY
TO ADD AND REVISE FACTS IN RELATION TO AN ACCEPTED FRAMEWORK, BUT TO BE
EVER EXAMINING AND MODIFYING THE FRAMEWORK ITSELF. 

     *         *         *        *         * 

"FREEDOM TO REASON AND FREEDOM FOR DISPUTATION ON THE BASIS OF
OBSERVATION AND EXPERIMENT ARE THE NECESSARY CONDITIONS FOR THE
ADVANCEMENT OF SCIENTIFIC KNOWLEDGE.  A SENSE OF FREEDOM IS ALSO
NECESSARY FOR CREATIVE WORK IN THE ARTS WHICH, EQUALLY WITH SCIENTIFIC
RESEARCH, IS THE CONCERN OF THE UNIVERSITY. 

     *         *         *         *    * 

"  ...  IT IS THE BUSINESS OF A UNIVERSITY TO PROVIDE THAT ATMOSPHERE
WHICH IS MOST CONDUCIVE TO SPECULATION, EXPERIMENT AND CREATION.  IT IS
AN ATMOSPHERE IN WHICH THERE PREVAIL 'THE FOUR ESSENTIAL FREEDOMS' OF A
UNIVERSITY - TO DETERMINE FOR ITSELF ON ACADEMIC GROUNDS WHO MAY TEACH,
WHAT MAY BE TAUGHT, HOW IT SHALL BE TAUGHT, AND WHO MAY BE ADMITTED TO
STUDY."  THE OPEN UNIVERSITIES IN SOUTH AFRICA 10-12.  (A STATEMENT OF
A CONFERENCE OF SENIOR SCHOLARS FROM THE UNIVERSITY OF CAPE TOWN AND
THE UNIVERSITY OF THE WITWATERSRAND, INCLUDING A.V.D.S. CENTLIVRES AND
RICHARD FEETHAM, AS CHANCELLORS OF THE RESPECTIVE UNIVERSITIES.) 
(FN1) 

I DO NOT SUGGEST THAT WHAT NEW HAMPSHIRE HAS HERE SANCTIONED BEARS
ANY RESEMBLANCE TO THE POLICY AGAINST WHICH THIS SOUTH AFRICAN
REMONSTRANCE WAS DIRECTED.  I DO SAY THAT IN THESE MATTERS OF THE
SPIRIT INROADS ON LEGITIMACY MUST BE RESISTED AT THEIR INCIPIENCY. 
THIS KIND OF EVIL GROWS BY WHAT IT IS ALLOWED TO FEED ON.  THE
ADMONITION OF THIS COURT IN ANOTHER CONTEXT IS APPLICABLE HERE.  "IT
MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS MILDEST AND LEAST
REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET
THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT APPROACHES AND
SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE."  BOYD V. UNITED
STATES, 116 U.S. 616, 635. 

PETITIONER STATED, IN RESPONSE TO QUESTIONS AT THE HEARING, THAT HE
DID NOT KNOW OF ANY COMMUNIST INTEREST IN, CONNECTION WITH, INFLUENCE
OVER, ACTIVITY IN, OR MANIPULATION OF THE PROGRESSIVE PARTY.   HE
REFUSED TO ANSWER, DESPITE COURT ORDER, THE FOLLOWING QUESTIONS ON THE
GROUND THAT, BY INQUIRING INTO THE ACTIVITIES OF A LAWFUL POLITICAL
ORGANIZATION, THEY INFRINGED UPON THE INVIOLABILITY OF THE RIGHT TO
PRIVACY IN HIS POLITICAL THOUGHTS, ACTIONS AND ASSOCIATIONS: 

"WAS SHE, NANCY SWEEZY, YOUR WIFE, ACTIVE IN THE FORMATION OF THE
PROGRESSIVE CITIZENS OF AMERICA?" 

"WAS NANCY SWEEZY THEN WORKING WITH INDIVIDUALS WHO WERE THEN MEMBERS
OF THE COMMUNIST PARTY?"  (FN2) 

"WAS CHARLES BEEBE ACTIVE IN FORMING THE PROGRESSIVE CITIZENS OF
AMERICA?" 

"DID HE WORK WITH YOUR PRESENT WIFE - DID CHARLES BEEBE WORK WITH
YOUR PRESENT WIFE IN 1947?" 

"DID IT (A MEETING AT THE HOME OF ONE ABRAHAM WALENKO) HAVE ANYTHING
TO DO WITH THE PROGRESSIVE PARTY?" 

THE SUPREME COURT OF NEW HAMPSHIRE JUSTIFIED THIS INTRUSION UPON HIS
FREEDOM ON THE SAME BASIS THAT IT UPHELD QUESTIONING ABOUT THE
UNIVERSITY LECTURE, NAMELY, THAT THE RESTRICTION WAS LIMITED TO
SITUATIONS WHERE THE COMMITTEE HAD REASON TO BELIEVE THAT VIOLENT
OVERTHROW OF THE GOVERNMENT WAS BEING ADVOCATED OR PLANNED.  IT RULED: 

"  ...  THAT HE (THE ATTORNEY GENERAL) DID POSSESS INFORMATION WHICH
WAS SUFFICIENT TO REASONABLY WARRANT INQUIRY CONCERNING THE PROGRESSIVE
PARTY IS EVIDENT FROM HIS STATEMENT MADE DURING THE HEARINGS HELD
BEFORE HIM THAT 'CONSIDERABLE SWORN TESTIMONY HAS BEEN GIVEN IN THIS
INVESTIGATION TO THE EFFECT THAT THE PROGRESSIVE PARTY IN NEW HAMPSHIRE
HAS BEEN HEAVILY INFILTRATED BY MEMBERS OF THE COMMUNIST PARTY AND THAT
THE POLICIES AND PURPOSES OF THE PROGRESSIVE PARTY HAVE BEEN DIRECTLY
INFLUENCED BY MEMBERS OF THE COMMUNIST PARTY.'"  100 N.H., AT 111, 121
A.2D, AT 790. 

FOR A CITIZEN TO BE MADE TO FOREGO EVEN A PART OF SO BASIC A LIBERTY
AS HIS POLITICAL AUTONOMY, THE SUBORDINATING INTEREST OF THE STATE MUST
BE COMPELLING.  INQUIRY PURSUED IN SAFEGUARDING A STATE'S SECURITY
AGAINST THREATENED FORCE AND VIOLENCE CANNOT BE SHUT OFF BY MERE
DISCLAIMER, THOUGH OF COURSE A RELEVANT CLAIM MAY BE MADE TO THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  (THE NEW HAMPSHIRE CONSTITUTION
GUARANTEES THIS PRIVILEGE.)  BUT THE INVIOLABILITY OF PRIVACY BELONGING
TO A CITIZENS' POLITICAL LOYALTIES HAS SO OVERWHELMING AN IMPORTANCE TO
THE WELL-BEING OF OUR KIND OF SOCIETY THAT IT CANNOT BE
CONSTITUTIONALLY ENCROACHED UPON ON THE BASIS OF SO MEAGRE A
COUNTERVAILING INTEREST OF THE STATE AS MAY BE ARGUMENTATIVELY FOUND IN
THE REMOTE, SHADOWY THREAT TO THE SECURITY OF NEW HAMPSHIRE ALLEGEDLY
PRESENTED IN THE ORIGINS AND CONTRIBUTING ELEMENTS OF THE PROGRESSIVE
PARTY AND IN PETITIONER'S RELATIONS TO THESE. 

IN THE POLITICAL REALM, AS IN THE ACADEMIC, THOUGHT AND ACTION ARE
PRESUMPTIVELY IMMUNE FROM INQUISITION BY POLITICAL AUTHORITY.  IT
CANNOT REQUIRE ARGUMENT THAT INQUIRY WOULD BE BARRED TO ASCERTAIN
WHETHER A CITIZEN HAD VOTED FOR ONE OR THE OTHER OF THE TWO MAJOR
PARTIES EITHER IN A STATE OR NATIONAL ELECTION.  UNTIL RECENTLY, NO
DIFFERENCE WOULD HAVE BEEN ENTERTAINED IN REGARD TO INQUIRIES ABOUT A
VOTER'S AFFILIATIONS WITH ONE OF THE VARIOUS SO-CALLED THIRD PARTIES
THAT HAVE HAD THEIR DAY, OR LONGER, IN OUR POLITICAL HISTORY.  THIS IS
SO, EVEN THOUGH ADEQUATE PROTECTION OF SECRECY BY WAY OF THE AUSTRALIAN
BALLOT DID NOT COME INTO USE TILL 1888.  THE IMPLICATIONS OF THE UNITED
STATES CONSTITUTION FOR NATIONAL ELECTIONS AND "THE CONCEPT OF THE
ORDERED LIBERTY" IMPLICIT IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT AS AGAINST THE STATES, PALKO V. CONNECTICUT, 302 U.S. 319,
325, WERE NOT FROZEN AS OF 1789 OR 1868, RESPECTIVELY.  WHILE THE
LANGUAGE OF THE CONSTITUTION DOES NOT CHANGE, THE CHANGING
CIRCUMSTANCES OF A PROGRESSIVE SOCIETY FOR WHICH IT WAS DESIGNED YIELD
NEW AND FULLER IMPORT TO ITS MEANING.  SEE HURTADO V. CALIFORNIA, 110
U.S. 516, 528-529; MCCULLOCH V. MARYLAND, 4 WHEAT.  316.  WHATEVER, ON
THE BASIS OF MASSIVE PROOF AND IN THE LIGHT OF HISTORY, OF WHICH THIS
COURT MAY WELL TAKE JUDICIAL NOTICE, BE THE JUSTIFICATION FOR NOT
REGARDING THE COMMUNIST PARTY AS A CONVENTIONAL POLITICAL PARTY, NO
SUCH JUSTIFICATION HAS BEEN AFFORDED IN REGARD TO THE PROGRESSIVE
PARTY.  A FOUNDATION IN FACT AND REASON WOULD HAVE TO BE ESTABLISHED
FAR WEIGHTIER THAN THE INTIMATIONS THAT APPEAR IN THE RECORD TO WARRANT
SUCH A VIEW OF THE PROGRESSIVE PARTY.  (FN3)  THIS PRECLUDES THE
QUESTIONING THAT PEITTIONER RESISTED IN REGARD TO THAT PARTY. 

TO BE SURE, THIS IS A CONCLUSION BASED ON A JUDICIAL JUDGMENT IN
BALANCING TWO CONTENDING PRINCIPLES - THE RIGHT OF A CITIZEN TO
POLITICAL PRIVACY, AS PROTECTED BY THE FOURTEENTH AMENDMENT, AND THE
RIGHT OF THE STATE TO SELF-PROTECTION.  AND STRIKING THE BALANCE
IMPLIES THE EXERCISE OF JUDGMENT.  THIS IS THE INESCAPABLE JUDICIAL
TASK IN GIVING SUBSTANTIVE CONTENT, LEGALLY ENFORCED, TO THE DUE
PROCESS CLAUSE, AND IT IS A TASK ULTIMATELY COMMITTED TO THIS COURT. 
IT MUST NOT BE AN EXERCISE OF WHIM OR WILL.  IT MUST BE AN OVERRIDING
JUDGMENT FOUNDED ON SOMETHING MUCH DEEPER AND MORE JUSTIFIABLE THAN
PERSONAL PREFERENCE.  AS FAR AS IT LIES WITHIN HUMAN LIMITATIONS, IT
MUST BE AN IMPERSONAL JUDGMENT.  IT MUST REST ON FUNDAMENTAL
PRESUPPOSITIONS ROOTED IN HISTORY TO WHICH WIDESPREAD ACCEPTANCE MAY
FAIRLY BE ATTRIBUTED.  SUCH A JUDGMENT MUST BE ARRIVED AT IN A SPIRIT
OF HUMILITY WHEN IT COUNTERS THE JUDGMENT OF THE STATE'S HIGHEST
COURT.  BUT, IN THE END, JUDGMENT CANNOT BE ESCAPED - THE JUDGMENT OF
THIS COURT.  SEE CONCURRING OPINIONS IN HALEY V. OHIO, 332 U.S. 596,
601; LOUISIANA EX REL.  FRANCIS V. RESWEBER, 329 U.S. 459, 466, 470
471; MALINSKI V. NEW YORK, 324 U.S. 401, 412, 414-417. 

AND SO I AM COMPELLED TO CONCLUDE THAT THE JUDGMENT OF THE NEW
HAMPSHIRE COURT MUST BE REVERSED. 

FN1  THE HON. A.V.D.S. CENTLIVRES ONLY RECENTLY RETIRED AS CHIEF
JUSTICE OF SOUTH AFRICA, AND THE HON. RICHARD FEETHAM IS ALSO AN
EMINENT, RETIRED SOUTH AFRICAN JUDGE. 

FN2  INCLUSION OF THIS QUESTION AMONG THE UNANSWERED QUESTIONS
APPEARS TO HAVE BEEN AN OVERSIGHT IN VIEW OF THE FACT THAT PETITIONER
ATTEMPTED TO ANSWER IT AT THE HEARING BY STATING THAT HE HAD NEVER TO
HIS KNOWLEDGE KNOWN MEMBERS OF THE COMMUNIST PARTY IN NEW HAMPSHIRE. 
IN ANY EVENT, PETITIONER'S BRIEF STATES THAT HE IS WILLING TO REPEAT
THE ANSWER TO THIS QUESTION IF THE ATTORNEY GENERAL SO DESIRES.  THIS
IS CONSISTENT WITH HIS DEMONSTRATED WILLINGNESS TO ANSWER ALL INQUIRIES
REGARDING THE COMMUNIST PARTY, INCLUDING ITS RELATION TO THE
PROGRESSIVE PARTY. 

FN3  THE PROGRESSIVE PARTY WAS ON THE BALLOT IN FORTY-FOUR STATES,
INCLUDING NEW HAMPSHIRE, IN 1948, AND IN TWENTY-SIX STATES IN 1952. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

THE COURT TODAY HAS DENIED THE STATE OF NEW HAMPSHIRE THE RIGHT TO
INVESTIGATE THE EXTENT OF "SUBVERSIVE ACTIVITIES" WITHIN ITS BOUNDARIES
IN THE MANNER CHOSEN BY ITS LEGISLATURE.  UNFORTUNATELY THERE IS NO
OPINION FOR THE COURT, FOR THOSE WHO REVERSE ARE DIVIDED AND THEY DO SO
ON ENTIRELY DIFFERENT GROUNDS.  FOUR OF MY BROTHERS JOIN IN WHAT I
SHALL CALL THE PRINCIPAL OPINION.  THEY HOLD THAT THE APPOINTMENT OF
THE ATTORNEY GENERAL TO ACT AS A COMMITTEE FOR THE LEGISLATURE RESULTS
IN A SEPARATION OF ITS POWER TO INVESTIGATE FROM ITS "RESPONSIBILITY TO
DIRECT THE USE OF THAT POWER" AND THEREBY "CAUSES A DEPRIVATION OF THE
CONSTITUTIONAL RIGHTS OF INDIVIDUALS AND A DENIAL OF DUE PROCESS  ...
."  THIS THEORY WAS NOT RAISED BY THE PARTIES AND IS, INDEED, A NOVEL
ONE. 

MY BROTHERS FRANKFURTER AND HARLAN DO NOT AGREE WITH THIS OPINION
BECAUSE THEY CONCLUDE, AS DO I, THAT THE INTERNAL AFFAIRS OF THE NEW
HAMPSHIRE STATE GOVERNMENT ARE OF NO CONCERN TO US.  SEE DREYER V.
ILLINOIS, 187 U.S. 71, 84 (1902).  THEY DO JOIN IN THE REVERSAL,
HOWEVER, ON THE GROUND THAT SWEEZY'S RIGHTS UNDER THE FIRST AMENDMENT
HAVE BEEN VIOLATED.  I AGREE WITH NEITHER OPINION. 

THE PRINCIPAL OPINION FINDS THAT "THE ATTORNEY GENERAL HAS BEEN GIVEN
SUCH A SWEEPING AND UNCERTAIN MANDATE THAT IT IS HIS DECISION WHICH
PICKS OUT THE SUBJECTS THAT WILL BE PURSUED, WHAT WITNESSES WILL BE
SUMMONED AND WHAT QUESTIONS WILL BE ASKED."  THE NEW HAMPSHIRE ACT
CLEARLY INDICATES THAT IT WAS THE LEGISLATURE THAT DETERMINED THE
GENERAL SUBJECT MATTER OF THE INVESTIGATION, SUBVERSIVE ACTIVITIES; THE
LEGISLATURE'S COMMITTEE, THE ATTORNEY GENERAL, PROPERLY DECIDED WHAT
WITNESSES SHOULD BE CALLED AND WHAT QUESTIONS SHOULD BE ASKED.  MY
BROTHERS SURELY WOULD NOT HAVE THE LEGISLATURE AS A WHOLE MAKE THESE
DECISIONS.  BUT THEY CONCLUDE, NEVERTHELESS, THAT IT CANNOT BE SAID
THAT THE LEGISLATURE "ASKED THE ATTORNEY GENERAL TO GATHER THE KIND OF
FACTS COMPRISED IN THE SUBJECTS UPON WHICH PETITIONER WAS
INTERROGATED."  IT FOLLOWS, SAYS THIS OPINION, THAT THERE IS NO
"ASSURANCE THAT THE QUESTIONS PETITIONER REFUSED TO ANSWER FALL INTO A
CATEGORY OF MATTERS UPON WHICH THE LEGISLATURE WANTED TO BE INFORMED
...  ."  BUT NEW HAMPSHIRE'S SUPREME COURT HAS CONSTRUED THE STATE
STATUTE.  IT HAS DECLARED THE PURPOSE TO BE TO INVESTIGATE "SUBVERSIVE"
ACTIVITIES WITHIN THE STATE; IT HAS APPROVED THE USE OF THE "ONE-MAN"
TECHNIQUE; IT HAS SAID THE QUESTIONS WERE ALL RELEVANT TO THE
LEGISLATIVE PURPOSE.  IN EFFECT THE STATE COURT SAYS THE ATTORNEY
GENERAL WAS "DIRECTED" TO INQUIRE AS HE DID.  FURTHERMORE, THE
LEGISLATURE RENEWED THE ACT IN THE SAME LANGUAGE TWICE IN THE YEAR
FOLLOWING SWEEZY'S INTERROGATION.  N.H. LAWS 1955, C. 197.  IN
RATIFYING THE ATTORNEY GENERAL'S ACTION IT USED THESE WORDS:  "THE
INVESTIGATION  ...  PROVIDED FOR BY CHAPTER 307 OF THE LAWS OF 1953, AS
CONTINUED BY A RESOLUTION APPROVED JANUARY 13, 1955, IS HEREBY
CONTINUED IN FULL FORCE AND EFFECT, IN FORM, MANNER AND AUTHORITY AS
THEREIN PROVIDED  ... ."  WE ARE BOUND BY THE STATE COURT FINDINGS.  WE
HAVE NO RIGHT TO STRIKE DOWN THE STATE ACTION UNLESS WE FIND NOT ONLY
THAT THERE HAS BEEN A DEPRIVATION OF SWEEZY'S CONSTITUTIONAL RIGHTS,
BUT THAT THE INTEREST IN PROTECTING THOSE RIGHTS IS GREATER THAN THE
STATE'S INTEREST IN UNCOVERING SUBVERSIVE ACTIVITIES WITHIN ITS
CONFINES.  THE MAJORITY HAS MADE NO SUCH FINDINGS. 

THE SHORT OF IT IS THAT THE COURT BLOCKS NEW HAMPSHIRE'S EFFORT TO
ENFORCE ITS LAW.  I HAD THOUGHT THAT IN PENNSYLVANIA V. NELSON, 350
U.S. 497 (1956), WE HAD LEFT OPEN FOR LEGITIMATE STATE CONTROL ANY
SUBVERSIVE ACTIVITY LEVELED AGAINST THE INTEREST OF THE STATE.  I FOR
ONE INTENDED TO SUSPEND STATE ACTION ONLY IN THE FIELD OF SUBVERSION
AGAINST THE NATION AND THUS AVOID A RACE TO THE COURTHOUSE DOOR BETWEEN
FEDERAL AND STATE PROSECUTORS.  CASES CONCERNING SUBVERSIVE ACTIVITIES
AGAINST THE NATIONAL GOVERNMENT HAVE SUCH INTERSTATE RAMIFICATIONS THAT
INDIVIDUAL STATE ACTION MIGHT EFFECTIVELY DESTROY A PROSECUTION ON THE
NATIONAL LEVEL.  I THOUGHT WE HAD LEFT OPEN A WIDE FIELD FOR STATE
ACTION, BUT IMPLICIT IN THE OPINIONS TODAY IS A CONTRARY CONCLUSION. 
THEY DESTROY THE FACT-FINDING POWER OF THE STATE IN THIS FIELD AND I
DISSENT FROM THIS WIDE SWEEP OF THEIR COVERAGE.    THE PRINCIPAL
OPINION DISCUSSES, BY WAY OF DICTUM, DUE PROCESS UNDER THE FOURTEENTH
AMENDMENT.  SINCE THE BASIS OF THE OPINION IS NOT PLACED ON THIS
GROUND, I WOULD NOT THINK IT NECESSARY TO RAISE IT HERE.  HOWEVER, MY
BROTHERS SAY THAT THE DEFINITION OF "SUBVERSIVE PERSON" LACKS "A
NECESSARY ELEMENT OF GUILTY KNOWLEDGE  ...  ."  WEIMAN V. UPDEGRAFF,
344 U.S. 183 (1952), IS HEAVILY DEPENDED UPON AS AUTHORITY FOR THE VIEW
EXPRESSED.  I DO NOT SO REGARD IT.  I AUTHORED THAT OPINION.  IT WAS A
LOYALTY OATH CASE IN WHICH OKLAHOMA HAD DECLARED IPSO FACTO
DISQUALIFIED ANY EMPLOYEE OF THE STATE WHO FAILED TO TAKE A PRESCRIBED
OATH THAT, INTER ALIA, HE BELONGED TO NO SUBVERSIVE ORGANIZATIONS.  WE
STRUCK DOWN THE ACT FOR LACK OF A REQUIREMENT OF SCIENTER.  WE SAID
THERE THAT "CONSTITUTIONAL PROTECTION  ...  EXTENDS) TO THE PUBLIC
SERVANT WHOSE EXCLUSION PURSUANT TO A STATUTE IS PATENTLY ARBITRARY OR
DISCRIMINATORY."  ID., AT 192.  BUT SWEEZY IS NOT CHARGED AS A
"SUBVERSIVE PERSON" AND THE COMMITTEE HAS MADE NO FINDING THAT HE IS.
IN FACT, HAD HE BEEN FOUND TO BE SUCH A PERSON, THERE IS NO SANCTION
UNDER THE ACT.  NEW HAMPSHIRE IS INVOKING NO STATUTE LIKE OKLAHOMA'S.
ITS ACT EXCLUDES NO ONE FROM ANYTHING.  UPDEGRAFF STANDS FOR NO SUCH
BROAD ABSTRACTION AS THE PRINCIPAL OPINION SUGGESTS. 

SINCE THE CONCLUSION OF A MAJORITY OF THOSE REVERSING IS NOT
PREDICATED ON THE FIRST AMENDMENT QUESTIONS PRESENTED, I SEE NO
NECESSITY FOR DISCUSSING THEM.  BUT SINCE THE PRINCIPAL OPINION DEVOTES
ITSELF LARGELY TO THESE ISSUES I BELIEVE IT FAIR TO ASK WHY THEY HAVE
BEEN GIVEN SUCH AN ELABORATE TREATMENT WHEN THE CASE IS DECIDED ON AN
ENTIRELY DIFFERENT GROUND.  IT IS OF NO AVAIL TO QUARREL WITH A STRAW
MAN.  MY VIEW ON FIRST AMENDMENT PROBLEMS IN THIS TYPE OF CASE IS
EXPRESSED IN MY DISSENT IN WATKINS, DECIDED TODAY, ANTE, P. 217.  SINCE
A MAJORITY OF THE COURT HAS NOT PASSED ON THESE PROBLEMS HERE, AND
SINCE I AM NOT CONVINCED THAT THE STATE'S INTEREST IN INVESTIGATING
SUBVERSIVE ACTIVITIES FOR THE PROTECTION OF ITS CITIZENS IS OUTWEIGHED
BY ANY NECESSITY FOR THE PROTECTION OF SWEEZY I WOULD AFFIRM THE
JUDGMENT OF THE NEW HAMPSHIRE SUPREME COURT. 
..END :




UNITED STATES V. KORPAN 354 U.S. 271 


NO. 596.  ARGUED APRIL 25, 1957.  - DECIDED JUNE 17, 1957.  - 237 F.2D
676, REVERSED. 


1.  A COIN-OPERATED GAMBLING MACHINE OF THE "PIN-BALL" TYPE, THE
OPERATION OF WHICH INVOLVES THE ELEMENT OF CHANCE, AS A RESULT OF WHICH
THE PLAYER MAY BECOME ENTITLED TO MONEY, IS A "SO-CALLED 'SLOT'
MACHINE" WITHIN THE MEANING OF 26 U.S.C. (SUPP. IV) SEC. 4462(A)(2),
AND IS, THEREFORE, SUBJECT TO THE TAX OF $250 PER ANNUM IMPOSED BY 26
U.S.C. (SUPP. IV) SEC. 4461.  PP. 271-277. 

2.  SECTION 4462(A)(2), AS HERE CONSTRUED, IS NOT UNCONSTITUTIONALLY
VAGUE.  P. 273, N. 2. 

UNITED STATES V. KORPAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, WALTER KORPAN, WAS INDICTED IN A FEDERAL DISTRICT
COURT IN ILLINOIS FOR WILLFULLY FAILING TO PAY THE $250 PER DEVICE TAX
IMPOSED BY 26 U.S.C. (SUPP. IV) SEC. 4461 ON ANY PERSON WHO MAINTAINS
FOR USE ANY GAMING DEVICE.  FOR PURPOSES OF THIS TAX, 26 U.S.C. (SUPP.
IV) SEC. 4462(A) DEFINES GAMING DEVICES AS: 

"SO-CALLED 'SLOT' MACHINES WHICH OPERATE BY MEANS OF INSERTION OF A
COIN  ...  AND WHICH, BY APPLICATION OF THE ELEMENT OF CHANCE, MAY
DELIVER, OR ENTITLE THE PERSON PLAYING  ...  THE MACHINE TO RECEIVE
CASH, PREMIUMS, MERCHANDISE, OR TOKENS."  (FN1) 

THE EVIDENCE AT THE TRIAL SHOWED THAT KORPAN MAINTAINED ON HIS
PREMISES A NUMBER OF COIN-OPERATED GAMBLING MACHINES.  THESE MACHINES
WERE PLAYED BY INSERTING A COIN INTO THE MACHINE THROUGH A SLOT.  THE
PLAYER WAS THEN ABLE TO SHOOT SEVERAL BALLS ONTO A PLAYING SURFACE
WHICH WAS INTERSPERSED WITH POCKETS OR HOLES.  IF HE SUCCEEDED IN
GETTING BALLS INTO CERTAIN HOLES HE RECEIVED A VARYING NUMBER OF FREE
GAMES.  HE HAD THE OPTION OF EITHER PLAYING THE FREE GAMES OR OF
CASHING THEM IN AT A DESIGNATED RATE.  BY INSERTING EXTRA COINS THE
PLAYER COULD SOMETIMES SECURE ADDITIONAL BALLS OR INCREASED "ODDS" (IN
OTHER WORDS, INCREASE THE NUMBER OF FREE GAMES HE COULD WIN).  THE
MACHINES WERE EQUIPPED WITH ELECTRICAL DEVICES WHICH OVER A PERIOD OF
TIME CONTROLLED THE NUMBER OF FREE GAMES WON. 

THE DISTRICT JUDGE FOUND RESPONDENT GUILTY AS CHARGED AND FINED HIM
$750.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED, HOLDING
THAT RESPONDENT'S MACHINES DID NOT COME WITHIN THE DEFINITION LAID DOWN
BY SEC. 4462(A)(2).  237 F.2D 676.  ON THE GOVERNMENT'S PETITION WE
GRANTED CERTIORARI BECAUSE THE CASE RAISED IMPORTANT QUESTIONS IN THE
ADMINISTRATION OF THE REVENUE LAWS.  352 U.S. 980.  THE ISSUE BEFORE US
IS WHETHER THE MACHINES MAINTAINED BY PETITIONER WERE INCLUDED WITHIN
THE DEFINITION GIVEN BY SEC. 4462(A)(2).  (FN2)  FOR THE REASONS STATED
HEREAFTER WE BELIEVE THAT THEY WERE WITHIN THAT DEFINITION AND THAT THE
JUDGMENT OF THE COURT OF APPEALS SETTING ASIDE KORPAN'S CONVICTION ON
THE GROUND THAT THEY WERE NOT MUST BE REVERSED. 

IT IS CLEAR THAT RESPONDENT'S MACHINES WERE OPERATED BY THE INSERTION
OF A COIN AND THAT PERSONS PLAYING THEM COULD RECEIVE CASH FOR ANY FREE
GAMES WON.  THE MACHINES ALSO INVOLVED AN ELEMENT OF CHANCE SUFFICIENT
TO MEET THE REQUIREMENTS OF SEC. 4462(A)(2), ALTHOUGH SKILL MAY HAVE
HAD SOME PART IN PLAYING THEM SUCCESSFULLY.  IN SHORT, THEY WERE "SLOT
MACHINE" GAMBLING DEVICES. 

RESPONDENT ARGUES, HOWEVER, THAT WHEN CONGRESS USED THE PHRASE "SO
CALLED 'SLOT' MACHINES" IN SEC. 4462(A)(2) IT INTENDED TO RESTRICT THE
SCOPE OF THAT SECTION TO THOSE "SLOT MACHINES" GAMBLING DEVICES
COLLOQUIALLY KNOWN AS "ONE-ARMED BANDITS."  HE DESCRIBES THE LATTER AS
MACHINES IN WHICH THE INSERTION OF A COIN RELEASES A LEVER OR HANDLE
WHICH, IN TURN, WHEN PULLED ACTIVATES A SERIES OF SPRING-DRIVEN DRUMS
OR REELS WITH VARIOUS INSIGNIA PAINTED THEREON, USUALLY BELLS AND
FRUIT, AND WHICH AUTOMATICALLY DISPENSE COINS TO A PLAYER WHEN CERTAIN
COMBINATIONS OF THESE INSIGNIA ARE ALIGNED.  THE GOVERNMENT, ON THE
OTHER HAND, TAKES THE POSITION THAT CONGRESS INTENDED TO COVER ALL
"SLOT MACHINES" WHICH COME WITHIN THE SPECIFIC REQUIREMENTS OF SEC.
4462(A)(2).  IT ARGUES THAT THE QUALIFYING PHRASE "SO-CALLED" WAS ADDED
BECAUSE (1) THE DRAFTSMEN WERE APPREHENSIVE THAT THE TERM "SLOT
MACHINE" MIGHT BE A SLANG EXPRESSION NOT ACCEPTED AS PROPER ENGLISH OR
(2) THEY WANTED TO COVER EVERY GAMBLING DEVICE OPERATED BY THE
INSERTION OF COINS THROUGH A SLOT EVEN THOUGH THE DEVICE MIGHT GO UNDER
A LABEL OTHER THAN "SLOT MACHINE." 

ON ITS FACE THE LANGUAGE OF SEC. 4462(A)(2) AND RELATED SECTIONS DOES
NOT MANIFEST AN INTENT TO LIMIT THE APPLICATION OF THE OTHERWISE BROAD
TERMS OF SEC. 4462(A)(2) TO ANY PARTICULAR KIND OF "SLOT-MACHINE"
GAMBLING DEVICE.  THE PHRASE "SO-CALLED 'SLOT' MACHINE" IS, IF
ANYTHING, MORE CONSISTENT WITH THE POSITION ADVANCED BY THE GOVERNMENT
THAN THAT TAKEN BY KORPAN.  AND THE REMAINDER OF SEC. 4462(A)(2), AS
WELL AS SEC.  4462(C), HAS LANGUAGE WHICH AFFIRMATIVELY SUGGESTS THAT
SEC. 4462(A)(2) WAS DESIGNED TO INCLUDE ALL SORTS OF COIN-OPERATED
GAMBLING DEVICES REGARDLESS OF THEIR PARTICULAR STRUCTURE OR THE METHOD
BY WHICH THEY PAID OFF PLAYERS. 

THIS INTERPRETATION IS SUPPORTED BY THE RELEVANT LEGISLATIVE
HISTORY.  APART FROM THE AMOUNT OF TAX IMPOSED, SEC. 4462(A)(2) IS
SUBSTANTIALLY THE SAME AS ITS ORIGINAL PREDECESSOR, SEC. 3267 OF THE
INTERNAL REVENUE CODE OF 1939, AS AMENDED, 55 STAT.  722.  SENATOR
CLARK, THE SPONSOR OF THE AMENDMENT WHICH BECAME SEC. 3267, DECLARED
DURING THE SENATE DEBATES ON HIS AMENDMENT THAT HIS OBJECTIVE WAS TO
IMPOSE A HEAVY TAX ON "ANY MACHINE WHICH RETURNS ANY SORT OF A PREMIUM,
AND THAT WAS THE INTENTION OF THE AMENDMENT, AND IT WAS THE INTENTION
OF THE COMMITTEE IN ADOPTING IT."  (FN3)  THE SENATE REPORT WHICH
ACCOMPANIED CLARK'S AMENDMENT STATED: 

"THE HOUSE BILL PLACES A SPECIAL TAX OF $25 PER YEAR UPON EACH COIN
OPERATED AMUSEMENT OR GAMING DEVICE MAINTAINED FOR USE ON ANY
PREMISES. 

"YOUR COMMITTEE DIVIDES THESE DEVICES INTO TWO CATEGORIES.  UPON SO
CALLED PINBALL OR OTHER AMUSEMENT DEVICES OPERATED BY THE INSERTION OF
A COIN OR TOKEN, THE TAX IS REDUCED TO $10 PER YEAR.  UPON SO-CALLED
SLOT MACHINES, HOWEVER, THE TAX IS PLACED AT $200 PER YEAR."  (FN4) 

RESPONDENT CONTENDS THAT THIS REPORT AS WELL AS SIMILAR LANGUAGE IN
OTHER PARTS OF THE LEGISLATIVE HISTORY IS INDICATIVE OF AN INTENT ON
THE PART OF CONGRESS TO DRAW A DISTINCTION BETWEEN "ONE-ARMED BANDITS"
AND OTHER COIN-OPERATED GAMBLING OR AMUSEMENT MACHINES.  (FN5)  WE
INTERPRET THIS HISTORY, HOWEVER, AS DEMONSTRATING A CONGRESSIONAL
PURPOSE TO PLACE A HEAVY TAX ON ALL "SLOT-MACHINE" GAMBLING DEVICES,
REGARDLESS OF THEIR PARTICULAR STRUCTURE, AND A SUBSTANTIALLY SMALLER
TAX ON MACHINES PLAYED PURELY FOR AMUSEMENT WHICH OFFERED THE PLAYER NO
EXPECTATION OF RECEIVING "CASH, PREMIUMS, MERCHANDISE, OR TOKENS." 

THE ADMINISTRATIVE INTERPRETATION OF SEC. 4462(A)(2) AND ITS
PREDECESSORS ADDS ADDITIONAL STRENGTH TO THIS VIEW.  IN 1942 THE
TREASURY DEPARTMENT PUBLISHED INTERPRETATIVE REGULATIONS WHICH INCLUDED
SO-CALLED "PIN-BALL" GAMBLING MACHINES UNDER SEC. 4462(A)(2).  (FN6)
THIS ADMINISTRATIVE RULING WAS PUBLICIZED IN THE TRADE PAPER OF THE
COIN-OPERATED MACHINE INDUSTRY.  IN BOTH 1942 AND 1954 THE
REPRESENTATIVES OF THAT INDUSTRY COMPLAINED TO CONGRESS ABOUT THE
TREASURY'S INTERPRETATION, WHICH IS STILL IN EFFECT, AND ASKED THAT
SEC. 4462(A)(2) BE AMENDED SO THAT IT EXPRESSLY EXCLUDED "PIN-BALL"
GAMBLING MACHINES.  (FN7)  IN EACH INSTANCE CONGRESS LEFT THE EXISTING
PROVISIONS OF SEC. 4462(A)(2) STANDING, ALTHOUGH, AT THE REQUEST OF
OTHERS IN THE INDUSTRY, IT DID PROVIDE AN EXCEPTION FOR CERTAIN PENNY
OPERATED GAMBLING MACHINES.  (FN8)

IF THE RESPONDENT'S POSITION WERE ADOPTED SEC. 4462(A)(2) WOULD BE
RESTRICTED TO A PECULIAR TYPE OF GAMBLING DEVICE - THE SO-CALLED "ONE
ARMED BANDIT" - EVEN THOUGH INGENUITY, A DESIRE TO AVOID TAXES, AND
TECHNOLOGICAL PROGRESS PROVIDE A MULTITUDE OF NEW DEVICES WHICH PERMIT
SUBSTANTIALLY THE SAME KIND OF GAMBLING BUT ONLY WITH A DIFFERENT KIND
OF COIN-OPERATED MACHINE.  WE ARE CONVINCED THAT CONGRESS HAD NO SUCH
PURPOSE AND MEANT ONLY TO DISTINGUISH BETWEEN "SLOT-MACHINES" OPERATED
AS GAMBLING DEVICES AND "SLOT-MACHINES" WHICH WERE USED EXCLUSIVELY FOR
AMUSEMENT.  REVERSED. 

FN1  IN FULL THE PERTINENT STATUTORY PROVISIONS READ AS FOLLOWS: 

"SEC. 4461.  IMPOSITION OF TAX. 

"THERE SHALL BE IMPOSED A SPECIAL TAX TO BE PAID BY EVERY PERSON WHO
MAINTAINS FOR USE OR PERMITS THE USE OF, ON ANY PLACE OR PREMISES
OCCUPIED BY HIM, A COIN-OPERATED AMUSEMENT GAMING DEVICE AT THE
FOLLOWING RATES: 

"(1)  $10 A YEAR, IN THE CASE OF A DEVICE DEFINED IN PARAGRAPH (1) OF

"(2)  $250 A YEAR, IN THE CASE OF A DEVICE DEFINED IN PARAGRAPH (2)
OF SECTION 4462(A); AND: 

"(3)  "10 OR $250 A YEAR, AS THE CASE MAY BE, FOR EACH ADDITIONAL
DEVICE SO MAINTAINED OR THE USE OF WHICH IS SO PERMITTED.  IF ONE SUCH
DEVICE IS REPLACED BY ANOTHER, SUCH OTHER DEVICE SHALL NOT BE
CONSIDERED AN ADDITIONAL DEVICE. 

"SEC. 4462.  DEFINITION OF COIN-OPERATED AMUSEMENT OR GAMING DEVICE. 

"(A)  IN GENERAL. 

"AS USED IN SECTIONS 4461 TO 4463, INCLUSIVE, THE TERM 'COIN-OPERATED
AMUSEMENT OR GAMING DEVICE' MEANS: 

"(1)  ANY AMUSEMENT OR MUSIC MACHINE OPERATED BY MEANS OF THE
INSERTION OF A COIN, TOKEN, OR SIMILAR OBJECT, AND: 

"(2)  SO-CALLED 'SLOT' MACHINES WHICH OPERATE BY MEANS OF INSERTION
OF A COIN, TOKEN, OR SIMILAR OBJECT AND WHICH, BY APPLICATION OF THE
ELEMENT OF CHANCE, MAY DELIVER, OR ENTITLE THE PERSON PLAYING OR
OPERATING THE MACHINE TO RECEIVE CASH, PREMIUMS, MERCHANDISE, OR
TOKENS. 

"(B)  EXCLUSION. 

"THE TERM 'COIN-OPERATED AMUSEMENT OR GAMING DEVICE' DOES NOT INCLUDE
BONA FIDE VENDING MACHINES IN WHICH ARE NOT INCORPORATED GAMING OR
AMUSEMENT FEATURES. 

"(C)  1-CENT VENDING MACHINE. 

"FOR PURPOSES OF SECTIONS 4461 TO 4463, INCLUSIVE, A VENDING MACHINE
OPERATED BY MEANS OF THE INSERTION OF A 1-CENT COIN, WHICH, WHEN IT
DISPENSES A PRIZE, NEVER DISPENSES A PRIZE OF A RETAIL VALUE OF, OR
ENTITLES A PERSON TO RECEIVE A PRIZE OF A RETAIL VALUE OF, MORE THAN 5
CENTS, AND IF THE ONLY PRIZE DISPENSED IS MERCHANDISE AND NOT CASH OR
TOKENS, SHALL BE CLASSIFIED UNDER PARAGRAPH (1) AND NOT UNDER PARAGRAPH
(2) OF SUBSECTION (A)." 

FN2  RESPONDENT CONTENDS THAT SEC. 4462(A)(2) AS INTERPRETED BY THE
DISTRICT COURT IS UNCONSTITUTIONALLY VAGUE.  THIS CONTENTION IS WITHOUT
MERIT. 

FN3  87 CONG. REC. 7301. 

FN4  S. REP. NO. 673, 77TH CONG., 1ST SESS. 21. 

FN5  FOR THE LEGISLATIVE HISTORY OF WHAT BECAME SEC. 3267 SEE:  H.R.
REP. NO. 1040, 77TH CONG., 1ST SESS. 60; H.R. REP. NO. 1203, 77TH
CONG., 1ST SESS. 18; S. REP. NO. 673, 77TH CONG., 1ST SESS. 21; 87
CONG. REC. 6476, 7297-7307. 

FN6  59 TREAS. REG. SEC. 323.22, AS AMENDED BY T.D. 5203, 7 FED. REG.
10835, DEC. 22, 1942. 

FN7  SEE HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS ON
REVENUE REVISION OF 1942, 77TH CONG., 2D SESS. 2055-2061, 2682-2688;
HEARINGS BEFORE THE SENATE COMMITTEE ON FINANCE ON H.R. 7378, 77TH
CONG., 2D SESS. 1132-1141; HEARINGS BEFORE HOUSE COMMITTEE ON WAYS AND
MEANS ON GENERAL REVISION OF THE INTERNAL REVENUE CODE, 83D CONG., 1ST
SESS.  2505-2522; HEARINGS BEFORE SENATE COMMITTEE ON FINANCE ON H.R.
8300, 83D CONG., 2D SESS.  1874-1879. 

FN8  56 STAT. 978-979. 

MR. JUSTICE DOUGLAS DISSENTS FROM THE CONCLUSION THAT HERE PIN BALL
MACHINES ARE GAMES OF CHANCE WITHIN THE MEANING OF THE STATUTE. 
..END :





















THEARD V. UNITED STATES 354 U.S. 278 


NO. 68.  ARGUED DECEMBER 13, 1956.  - DECIDED JUNE 17, 1957.  - 228 F.2D
617, REVERSED AND REMANDED. 


IN A PROCEEDING INSTITUTED IN 1950, A LAWYER WAS DISBARRED BY A STATE
SUPREME COURT IN 1954 FOR FORGING A PROMISSORY NOTE IN 1935, WHEN HE
CONCEDEDLY WAS SUFFERING FROM A DEGREE OF INSANITY WHICH RESULTED IN
HIS CONFINEMENT IN AN INSANE ASYLUM FOR SEVERAL YEARS THEREAFTER. 
AFTER RELEASE FROM THE ASYLUM, HE HAD PRACTICED LAW FOR SIX YEARS
WITHOUT ANY CHARGE OF MISCONDUCT BEING BROUGHT AGAINST HIM.  SOLELY
BECAUSE OF HIS DISBARMENT BY THE STATE COURT, PETITIONER SUBSEQUENTLY
WAS DISBARRED BY A FEDERAL DISTRICT COURT UNDER A RULE PROVIDING FOR
SUCH ACTION "WHENEVER  ...  ANY MEMBER OF ITS BAR HAS BEEN DISBARRED
...  FROM PRACTICE  ...  IN ANY OTHER COURT."  HELD:  THE DISTRICT
COURT ERRED IN CONSIDERING ITSELF CONCLUSIVELY BOUND BY THE STATE-COURT
DISBARMENT, AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR
DISPOSITION ON THE MERITS UNDER ITS RULES, IN ACCORDANCE WITH THE
STANDARDS DEFINED IN SELLING V. RADFORD, 243 U.S. 46, AND IN THIS
COURT'S OPINION IN THIS CASE.  PP. 279-283. 

(A)  WHILE A LAWYER IS ADMITTED INTO A FEDERAL COURT BY WAY OF A
STATE COURT, HE IS NOT AUTOMATICALLY SET OUT OF THE FEDERAL COURT BY
THE SAME ROUTE.  P. 281. 

(B)  AMPLE OPPORTUNITY MUST BE AFFORDED TO SHOW CAUSE WHY AN ACCUSED
PRACTITIONER SHOULD NOT BE DISBARRED; AND AN ORDER OF DISBARMENT BY A
STATE COURT IS NOT CONCLUSIVELY BINDING ON FEDERAL COURTS.  P. 282. 

(C)  THE "PRINCIPLES OF RIGHT AND JUSTICE" DO NOT REQUIRE A FEDERAL
COURT TO ENFORCE AUTOMATIC DISBARMENT OF A LAWYER 18 YEARS AFTER HE HAD
UTTERED A FORGERY WHEN CONCEDEDLY HE WAS SUFFERING FROM SOME FORM OF
INSANITY.  P. 282. 

THEARD V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

BECAUSE OF PETITIONER'S DISBARMENT BY THE SUPREME COURT OF LOUISIANA,
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
STRUCK HIM FROM ITS ROLLS OF ATTORNEYS, AND THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT AFFIRMED THE ORDER.  228 F.2D 617.  THE CASE RAISES
AN IMPORTANT QUESTION REGARDING DISBARMENT BY A FEDERAL COURT ON THE
BASIS OF DISBARMENT BY A STATE COURT AND SO WE GRANTED CERTIORARI.  351
U.S. 961. 

A PROCEEDING FOR DISBARMENT OF A LAWYER IS ALWAYS PAINFUL.  THE
CIRCUMSTANCES OF THIS CASE MAKE IT PUZZLING AS WELL AS PAINFUL.  THE
FACTS ARE FEW AND CLEAR.  IT IS UNDISPUTED THAT PETITIONER, IN 1935,
FORGED A PROMISSORY NOTE AND COLLECTED ITS PROCEEDS.  CRIMINAL
PROSECUTION AND ACTION FOR DISBARMENT WERE DULY INITIATED BUT BOTH WERE
ABORTED BECAUSE THE PETITIONER WAS "SUFFERING UNDER AN EXCEEDINGLY
ABNORMAL MENTAL CONDITION, SOME DEGREE OF INSANITY" AT THE TIME OF THIS
BEHAVIOR, TO SUCH A DEGREE THAT HE WAS COMMITTED TO AN INSANE ASYLUM
AND WAS UNDER A DECREE OF INTERDICTION UNTIL 1948.  YEARS AFTER,
CRIMINAL PROSECUTION WAS UNSUCCESSFULLY REVIVED, STATE V. THEARD, 212
LA. 1022, 34 SO. 2D 248.  THE DISBARMENT PROCEEDINGS, WHICH LED TO THE
ORDER IN THE FEDERAL COURT NOW UNDER REVIEW, GOT UNDER WAY IN 1950 AND
THE SUPREME COURT OF LOUISIANA, ACTING ON THE FINDINGS OF A COMMITTEE
OF THE LOUISIANA STATE BAR ASSOCIATION, OVERRULED EXCEPTIONS TO THE
PETITION FOR DISBARMENT.  IN SO DOING, THE COURT MET THE PLEA OF
INSANITY AGAINST THE CLAIM OF MISCONDUCT WITH THE STATEMENT THAT IT DID
NOT "VIEW THE MENTAL DEFICIENCY OF A LAWYER AT THE TIME OF HIS
MISCONDUCT TO BE A VALID DEFENSE TO HIS DISBARMENT."  LOUISIANA STATE
BAR ASSOCIATION V. THEARD, 222 LA. 328, 334, 62 SO. 2D 501, 503.  THE
NEXT YEAR, "AFTER ISSUE HAD BEEN JOINED," THE SUPREME COURT OF
LOUISIANA APPOINTED A COMMISSIONER TO TAKE EVIDENCE AND TO REPORT TO
THAT COURT HIS FINDINGS OF FACT AND CONCLUSIONS OF LAW.  THE
COMMISSIONER DID SO AND REPORTED TO THE SUPREME COURT THIS FACT THAT WE
DEEM VITAL TO THE ISSUE BEFORE US: "IT MUST THEN, FROM THE RECORD, BE
HELD THAT THE RESPONDENT WAS SUFFERING UNDER AN EXCEEDINGLY ABNORMAL
MENTAL CONDITION, SOME DEGREE OF INSANITY."  225 LA. 98, 104, 105, 72
SO. 2D 310, 312.  THE COMMISSIONER DEEMED HIMSELF, HOWEVER, BOUND BY
"THE LAW OF THE CASE" AS ANNOUNCED BY THE SUPREME COURT IN 222 LA. 328,
334, 62 SO. 2D 501, 503, SUPRA, ACCORDING TO WHICH IT WAS IMMATERIAL TO
DISBARMENT THAT THE PETITIONER "WAS PROBABLY SUFFERING FROM AMNESIA AND
OTHER MENTAL DEFICIENCIES AT THE TIME OF HIS MISDEEDS."  IBID.  THE
SUPREME COURT OF LOUISIANA IN ITS SECOND DECISION APPROVED THE
COMMISSIONER'S VIEW ABOUT "THE LAW OF THE CASE," AND ADDED THAT, WERE
THE DOCTRINE OTHERWISE, IT WOULD NOT CHANGE ITS PREVIOUS RULING.  225
LA. 98, 108, 72 SO. 2D 310, 313, 

THE STATE PROCEEDINGS THUS ESTABLISH THAT PETITIONER WAS DISBARRED IN
1954 FOR AN ACTION IN 1935, ALTHOUGH AT THE TIME OF THE FATEFUL CONDUCT
HE WAS CONCEDEDLY IN A CONDITION OF MENTAL IRRESPONSIBILITY SO
PRONOUNCED THAT FOR YEARS HE WAS IN AN INSANE ASYLUM UNDER JUDICIAL
RESTRAINT.  THE PROCEEDINGS ALSO ESTABLISH THAT AS AN ACTIVE
PRACTITIONER FOR SIX YEARS PRECEDING DISBARMENT, AFTER RECOVERING HIS
CAPACITY, INCLUDING THE ARGUMENT OF THIRTY-SIX CASES BEFORE THE
LOUISIANA SUPREME COURT AND THE COURT OF APPEALS FOR THE PARISH OF
ORLEANS, NO CHARGE OF MISCONDUCT OR IMPROPRIETY WAS BROUGHT AGAINST
HIM. 

IT IS NOT FOR THIS COURT, EXCEPT WITHIN THE NARROW LIMITS FOR REVIEW
OPEN TO THIS COURT, AS RECENTLY CANVASSED IN KONIGSBERG V. CALIFORNIA,
353 U.S. 252, AND SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, TO
SIT IN JUDGMENT ON LOUISIANA DISBARMENTS, AND WE ARE NOT IN ANY EVENT
SITTING IN REVIEW OF THE LOUISIANA JUDGMENT.  WHILE A LAWYER IS
ADMITTED INTO A FEDERAL COURT BY WAY OF A STATE COURT, HE IS NOT
AUTOMATICALLY SENT OUT OF THE FEDERAL COURT BY THE SAME ROUTE.  THE TWO
JUDICIAL SYSTEMS OF COURTS, THE STATE JUDICATURES AND THE FEDERAL
JUDICIARY, HAVE AUTONOMOUS CONTROL OVER THE CONDUCT OF THEIR OFFICERS,
AMONG WHOM, IN THE PRESENT CONTEXT, LAWYERS ARE INCLUDED.  THE COURT'S
CONTROL OVER A LAWYER'S PROFESSIONAL LIFE DERIVES FROM HIS RELATION TO
THE RESPONSIBILITIES OF A COURT.  THE MATTER WAS COMPENDIOUSLY PUT BY
MR. JUSTICE CARDOZO, WHILE CHIEF JUDGE OF THE NEW YORK COURT OF
APPEALS.  "'MEMBERSHIP IN THE BAR IS A PRIVILEGE BURDENED WITH
CONDITIONS' (MATTER OF ROUSS, (221 N.Y. 81, 84, 116 N.E. 782, 783)). 
THE APPELLANT WAS RECEIVED INTO THAT ANCIENT FELLOWSHIP FOR SOMETHING
MORE THAN PRIVATE GAIN.  HE BECAME AN OFFICER OF THE COURT, AND, LIKE
THE COURT ITSELF, AN INSTRUMENT OR AGENCY TO ADVANCE THE ENDS OF
JUSTICE."  PEOPLE EX REL. KARLIN V. CULKIN, 248 N.Y. 465, 470-471, 162
N.E.  487, 489.  THE POWER OF DISBARMENT IS NECESSARY FOR THE
PROTECTION OF THE PUBLIC IN ORDER TO STRIP A MAN OF THE IMPLIED
REPRESENTATION BY COURTS THAT A MAN WHO IS ALLOWED TO HOLD HIMSELF OUT
TO PRACTICE BEFORE THEM IS IN "GOOD STANDING" SO TO DO. 

THE RULES OF THE VARIOUS FEDERAL COURTS, MORE PARTICULARLY THE
DISTRICT COURT WHICH DISBARRED THIS PETITIONER, HAVE PROVISIONS
SUBSTANTIALLY LIKE THE PRESENT RULE 8 OF THIS COURT DEALING WITH
DISBARMENT.  "WHERE IT IS SHOWN TO THE COURT THAT ANY MEMBER OF ITS BAR
HAS BEEN DISBARRED FROM PRACTICE IN ANY STATE, TERRITORY, DISTRICT,
COMMONWEALTH, OR 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.  HE WILL THEREUPON BE AFFORDED THE
OPPORTUNITY TO SHOW GOOD CAUSE, WITHIN FORTY DAYS, WHY HE SHOULD NOT BE
DISBARRED."  DISBARMENT BEING THE VERY SERIOUS BUSINESS THAT IT IS,
AMPLE OPPORTUNITY MUST BE AFFORDED TO SHOW CAUSE WHY AN ACCUSED
PRACTITIONER SHOULD NOT BE DISBARRED.  IF THE ACCUSATION RESTS ON
DISBARMENT BY A STATE COURT, SUCH DETERMINATION OF COURSE BRINGS TITLE
DEEDS OF HIGH RESPECT.  BUT IT IS NOT CONCLUSIVELY BINDING ON THE
FEDERAL COURTS.  THE RECOGNITION THAT MUST BE ACCORDED SUCH A STATE
JUDGMENT AND THE EXTENT OF THE RESPONSIBILITY THAT REMAINS IN THE
FEDERAL JUDICIARY WERE AUTHORITATIVELY EXPOUNDED IN SELLING V. RADFORD,
243 U.S. 46.  THE SHORT OF IT IS THAT DISBARMENT BY FEDERAL COURTS DOES
NOT AUTOMATICALLY FLOW FROM DISBARMENT BY STATE COURTS.   OF THE
CONDITIONS THAT QUALIFY SUCH A STATE COURT JUDGMENT, THE ONE HERE
RELEVANT IS THAT SOME "GRAVE REASON EXISTED WHICH SHOULD CONVINCE US
THAT TO ALLOW THE NATURAL CONSEQUENCES OF THE JUDGMENT TO HAVE THEIR
EFFECT WOULD CONFLICT WITH THE DUTY WHICH RESTS UPON US NOT TO DISBAR
EXCEPT UPON THE CONVICTION THAT, UNDER THE PRINCIPLES OF RIGHT AND
JUSTICE, WE WERE CONSTRAINED SO TO DO."  ID., AT 51. 

WE DO NOT THINK THAT "THE PRINCIPLES OF RIGHT AND JUSTICE" REQUIRE A
FEDERAL COURT TO ENFORCE DISBARMENT OF A MAN EIGHTEEN YEARS AFTER HE
HAD UTTERED A FORGERY WHEN CONCEDEDLY HE "WAS SUFFERING UNDER AN
EXCEEDINGLY ABNORMAL MENTAL CONDITION, SOME DEGREE OF INSANITY." 
NEITHER CONSIDERATIONS RELATING TO "THE LAW OF THE CASE," CF. MESSENGER
V. ANDERSON, 225 U.S. 436, 444, NOR THE TEMPTATION TO GET BOGGED DOWN
IN THE QUAGMIRE OF CONTROVERSY ABOUT THE M'NAGHTEN RULE, REQUIRE
AUTOMATIC ACCEPTANCE BY A FEDERAL COURT OF THE STATE DISBARMENT IN THE
CIRCUMSTANCES OF THIS CASE.  THE DISTRICT COURT APPARENTLY FELT ITSELF
SO BOUND.  THIS WE DEEM ERROR.  THE CASE MUST THEREFORE BE REMANDED TO
THAT COURT FOR DISPOSITION OF THE MOTION FOR DISBARMENT UNDER THAT
COURT'S RULE 1(F) OF ITS GENERAL RULES, IN ACCORDANCE WITH THE
STANDARDS DEFINED IN SELLING V. RADFORD, SUPRA, AND THIS OPINION.  IT
IS SO ORDERED. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK CONCUR IN THE RESULT. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :


















INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 695, A.F.L. V. VOGT, INC.
354 U.S. 284 


NO. 79.  ARGUED FEBRUARY 26, 1957.  - DECIDED JUNE 17, 1957.  - 270 WIS.
321A, 74 N.W.2D 749, AFFIRMED. 


RESPONDENT OWNS AND OPERATES A GRAVEL PIT IN WISCONSIN, WHERE IT
EMPLOYS 15 TO 20 MEN.  PETITIONER UNIONS SOUGHT UNSUCCESSFULLY TO
INDUCE SOME OF RESPONDENT'S EMPLOYEES TO JOIN THE UNIONS AND BEGAN
PICKETING THE ENTRANCE TO RESPONDENT'S GRAVEL PIT WITH SIGNS READING,
"THE MEN ON THIS JOB ARE NOT 100% AFFILIATED WITH THE A.F.L."  AS A
RESULT, DRIVERS OF SEVERAL TRUCKING COMPANIES REFUSED TO DELIVER AND
HAUL GOODS TO AND FROM RESPONDENT'S PLANT, CAUSING SUBSTANTIAL DAMAGE
TO RESPONDENT.  ON RESPONDENT'S APPLICATION, A STATE COURT ENJOINED THE
PICKETING.  THE INJUNCTION WAS SUSTAINED BY THE STATE SUPREME COURT ON
FINDINGS BY IT THAT (1) THE PICKETING HAD BEEN ENGAGED IN FOR THE
PURPOSE OF COERCING RESPONDENT TO FORCE ITS EMPLOYEES TO BECOME MEMBERS
OF PETITIONER UNIONS, AND (2) SUCH PICKETING WAS FOR "AN UNLAWFUL
PURPOSE," SINCE WIS. STAT. SEC. 111.06(2)(B) MADE IT AN UNFAIR LABOR
PRACTICE FOR AN EMPLOYEE INDIVIDUALLY OR IN CONCERT WITH OTHERS TO
"COERCE, INTIMIDATE OR INDUCE AN EMPLOYER TO INTERFERE WITH ANY OF HIS
EMPLOYES IN THE ENJOYMENT OF THEIR LEGAL RIGHTS  ...  OR TO ENGAGE IN
ANY PRACTICE WITH REGARD TO HIS EMPLOYES WHICH WOULD CONSTITUTE AN
UNFAIR LABOR PRACTICE IF UNDERTAKEN BY HIM ON HIS OWN INITIATIVE." 
HELD:  THE JUDGMENT IS AFFIRMED.  PP. 285-295. 

(A)  PRIOR DECISIONS OF THIS COURT HAVE ESTABLISHED A BROAD FIELD IN
WHICH A STATE, IN ENFORCING SOME PUBLIC POLICY, WHETHER OF ITS CRIMINAL
OR ITS CIVIL LAW, AND WHETHER ANNOUNCED BY ITS LEGISLATURE OR ITS
COURTS, MAY CONSTITUTIONALLY ENJOIN PEACEFUL PICKETING AIMED AT
PREVENTING EFFECTUATION OF THAT POLICY.  PP. 287-293. 

(B)  CONSISTENTLY WITH THE FOURTEENTH AMENDMENT, A STATE MAY ENJOIN
PEACEFUL PICKETING THE PURPOSE OF WHICH IS TO COERCE AN EMPLOYER TO PUT
PRESSURE ON HIS EMPLOYEES TO JOIN A UNION IN VIOLATION OF THE DECLARED
POLICY OF THE STATE.  PAPPAS V. STACEY, 151 ME. 36, 116 A.2D 497,
APPEAL DISMISSED, 350 U.S. 870.  PP. 293-295. 

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 695, A.F.L., ET AL. V.
VOGT, INC. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS ONE MORE IN THE LONG SERIES OF CASES IN WHICH THIS COURT HAS
BEEN REQUIRED TO CONSIDER THE LIMITS IMPOSED BY THE FOURTEENTH
AMENDMENT ON THE POWER OF A STATE TO ENJOIN PICKETING.  THE CASE WAS
HEARD BELOW ON THE PLEADINGS AND AFFIDAVITS, THE PARTIES STIPULATING
THAT THE RECORD CONTAINED "ALL OF THE FACTS AND EVIDENCE THAT WOULD BE
ADDUCED UPON A TRIAL ON THE MERITS  ...  ."  RESPONDENT OWNS AND
OPERATES A GRAVEL PIT IN OCONOMOWOC, WISCONSIN, WHERE IT EMPLOYS 15 TO
20 MEN.  PETITIONER UNIONS SOUGHT UNSUCCESSFULLY TO INDUCE SOME OF
RESPONDENT'S EMPLOYEES TO JOIN THE UNIONS AND COMMENCED TO PICKET THE
ENTRANCE TO RESPONDENT'S PLACE OF BUSINESS WITH SIGNS READING, "THE MEN
ON THIS JOB ARE NOT 100% AFFILIATED WITH THE A.F.L."  "IN CONSEQUENCE,"
DRIVERS OF SEVERAL TRUCKING COMPANIES REFUSED TO DELIVER AND HAUL GOODS
TO AND FROM RESPONDENT'S PLANT, CAUSING SUBSTANTIAL DAMAGE TO
RESPONDENT.  RESPONDENT THEREUPON SOUGHT AN INJUNCTION TO RESTRAIN THE
PICKETING. 

THE TRIAL COURT DID NOT MAKE THE FINDING, REQUESTED BY RESPONDENT,
"THAT THE PICKETING OF PLAINTIFF'S PREMISES HAS BEEN ENGAGED IN FOR THE
PURPOSE OF COERCING, INTIMIDATING AND INDUCING THE EMPLOYER TO FORCE,
COMPEL, OR INDUCE ITS EMPLOYEES TO BECOME MEMBERS OF DEFENDANT LABOR
ORGANIZATIONS, AND FOR THE PURPOSE OF INJURING THE PLAINTIFF IN ITS
BUSINESS BECAUSE OF ITS REFUSAL TO IN ANY WAY INTERFERE WITH THE RIGHTS
OF ITS EMPLOYEES TO JOIN OR NOT TO JOIN A LABOR ORGANIZATION."  IT
NEVERTHELESS HELD THAT BY VIRTUE OF WIS. STAT. SEC. 103.535,
PROHIBITING PICKETING IN THE ABSENCE OF A "LABOR DISPUTE," THE
PETITIONERS MUST BE ENJOINED FROM MAINTAINING ANY PICKETS NEAR
RESPONDENT'S PLACE OF BUSINESS, FROM DISPLAYING AT ANY PLACE NEAR
RESPONDENT'S PLACE OF BUSINESS SIGNS INDICATING THAT THERE WAS A LABOR
DISPUTE BETWEEN RESPONDENT AND ITS EMPLOYEES OR BETWEEN RESPONDENT AND
ANY OF THE PETITIONERS, AND FROM INDUCING OTHERS TO DECLINE TO
TRANSPORT GOODS TO AND FROM RESPONDENT'S BUSINESS ESTABLISHMENT. 

ON APPEAL, THE WISCONSIN SUPREME COURT AT FIRST REVERSED, RELYING
LARGELY ON A.F. OF L. V. SWING, 312 U.S. 321, TO HOLD SEC. 103.535
UNCONSTITUTIONAL, ON THE GROUND THAT PICKETING COULD NOT
CONSTITUTIONALLY BE ENJOINED MERELY BECAUSE OF THE ABSENCE OF A "LABOR
DISPUTE."  270 WIS. 315, 71 N.W.2D 359. 

UPON REARGUMENT, HOWEVER, THE COURT WITHDREW ITS ORIGINAL OPINION. 
ALTHOUGH THE TRIAL COURT HAD REFUSED TO MAKE THE FINDING REQUESTED BY
RESPONDENT, THE SUPREME COURT, NOTING THAT THE FACTS AS TO WHICH THE
REQUEST WAS MADE WERE UNDISPUTED, DREW THE INFERENCE FROM THE
UNDISPUTED FACTS AND ITSELF MADE THE FINDING.  IT CANVASSED THE WHOLE
CIRCUMSTANCES SURROUNDING THE PICKETING AND HELD THAT "ONE WOULD BE
CREDULOUS, INDEED, TO BELIEVE UNDER THE CIRCUMSTANCES THAT THE UNION
HAD NO THOUGHT OF COERCING THE EMPLOYER TO INTERFERE WITH ITS EMPLOYEES
IN THEIR RIGHT TO JOIN OR REFUSE TO JOIN THE DEFENDANT UNION."  SUCH
PICKETING, THE COURT HELD, WAS FOR "AN UNLAWFUL PURPOSE," SINCE WIS.
STAT. SEC. 111.06(2)(B) MADE IT AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYEE INDIVIDUALLY OR IN CONCERT WITH OTHERS TO "COERCE, INTIMIDATE
OR INDUCE ANY EMPLOYER TO INTERFERE WITH ANY OF HIS EMPLOYES IN THE
ENJOYMENT OF THEIR LEGAL RIGHTS  ...  OR TO ENGAGE IN ANY PRACTICE WITH
REGARD TO HIS EMPLOYES WHICH WOULD CONSTITUTE AN UNFAIR LABOR PRACTICE
IF UNDERTAKEN BY HIM ON HIS OWN INITIATIVE."  RELYING ON BUILDING
SERVICE EMPLOYEES V. GAZZAM, 339 U.S. 532, AND PAPPAS V. STACEY, 151
ME. 36, 116 A.2D 497, THE WISCONSIN SUPREME COURT THEREFORE AFFIRMED
THE GRANTING OF THE INJUNCTION ON THIS DIFFERENT GROUND.  270 WIS.
321A, 74 N.W.2D 749. 

WE ARE ASKED TO REVERSE THE JUDGMENT OF THE WISCONSIN SUPREME COURT,
WHICH TO A LARGE EXTENT RESTED ITS DECISION ON THAT OF THE SUPREME
JUDICIAL COURT OF MAINE IN PAPPAS V. STACEY, SUPRA.  WHEN AN APPEAL
FROM THAT DECISION WAS FILED HERE, THIS COURT GRANTED APPELLEE'S MOTION
TO DISMISS FOR LACK OF A SUBSTANTIAL FEDERAL QUESTION.  350 U.S. 870. 
SINCE THE PRESENT CASE PRESENTS A SIMILAR QUESTION, WE MIGHT WELL HAVE
DENIED CERTIORARI ON THE STRENGTH OF OUR DECISION IN THAT CASE.  IN
VIEW OF THE RECURRENCE OF THE QUESTION, WE THOUGHT IT ADVISABLE TO
GRANT CERTIORARI, 352 U.S. 817, AND TO RESTATE THE PRINCIPLES GOVERNING
THIS TYPE OF CASE. 

IT IS INHERENT IN THE CONCEPT EMBODIED IN THE DUE PROCESS CLAUSE THAT
ITS SCOPE BE DETERMINED BY A "GRADUAL PROCESS OF JUDICIAL INCLUSION AND
EXCLUSION," DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 104.  INEVITABLY,
THEREFORE, THE DOCTRINE OF A PARTICULAR CASE "IS NOT ALLOWED TO END
WITH ITS ENUNCIATION AND  ...  AN EXPRESSION IN AN OPINION YIELDS LATER
TO THE IMPACT OF FACTS UNFORESEEN."  JAYBIRD MINING CO. V. WEIR, 271
U.S. 609, 619 (BRANDEIS, J., DISSENTING).  IT IS NOT TOO SURPRISING
THAT THE RESPONSE OF STATES - LEGISLATIVE AND JUDICIAL - TO USE OF THE
INJUNCTION IN LABOR CONTROVERSIES SHOULD HAVE GIVEN RISE TO A SERIES OF
ADJUDICATIONS IN THIS COURT RELATING TO THE LIMITATIONS ON STATE ACTION
CONTAINED IN THE PROVISIONS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  IT IS ALSO NOT TOO SURPRISING THAT EXAMINATION OF THESE
ADJUDICATIONS SHOULD DISCLOSE AN EVOLVING, NOT A STATIC, COURSE OF
DECISION. 

THE SERIES BEGINS WITH TRUAX V. CORRIGAN, 257 U.S. 312, IN WHICH A
CLOSELY DIVIDED COURT FOUND IT TO BE VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE - NOT OF THE DUE PROCESS CLAUSE - FOR A STATE TO DENY USE OF THE
INJUNCTION IN THE SPECIAL CLASS OF CASES ARISING OUT OF LABOR
CONFLICTS.  THE CONSIDERATIONS THAT UNDERLAY THAT CASE SOON HAD TO
YIELD, THROUGH LEGISLATION AND LATER THROUGH LITIGATION, TO THE
PERSUASIVENESS OF UNDERMINING FACTS.  THUS, TO REMEDY THE ABUSIVE USE
OF THE INJUNCTION IN THE FEDERAL COURTS (SEE FRANKFURTER AND GREENE,
THE LABOR INJUNCTION), THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C.
SEC. 101, WITHDREW, SUBJECT TO QUALIFICATIONS, JURISDICTION FROM THE
FEDERAL COURTS TO ISSUE INJUNCTIONS IN LABOR DISPUTES TO PROHIBIT
CERTAIN ACTS.  ITS EXAMPLE WAS WIDELY FOLLOWED BY STATE ENACTMENTS. 

APART FROM REMEDYING THE ABUSES OF THE INJUNCTION IN THIS GENERAL
TYPE OF LITIGATION, LEGISLATURES AND COURTS BEGAN TO FIND IN ONE OF THE
AIMS OF PICKETING AN ASPECT OF COMMUNICATION.  THIS VIEW CAME TO THE
FORE IN SENN V. TILE LAYERS UNION, 301 U.S. 468, WHERE THE COURT HELD
THAT THE FOURTEENTH AMENDMENT DID NOT PROHIBIT WISCONSIN FROM
AUTHORIZING PEACEFUL STRANGER PICKETING BY A UNION THAT WAS ATTEMPTING
TO UNIONIZE A SHOP AND TO INDUCE AN EMPLOYER TO REFRAIN FROM WORKING IN
HIS BUSINESS AS A LABORER. 

ALTHOUGH THE COURT HAD BEEN CLOSELY DIVIDED IN THE SENN CASE, THREE
YEARS LATER, IN PASSING ON A RESTRICTIVE INSTEAD OF A PERMISSIVE STATE
STATUTE, THE COURT MADE SWEEPING PRONOUNCEMENTS ABOUT THE RIGHT TO
PICKET IN HOLDING UNCONSTITUTIONAL A STATUTE THAT HAD BEEN APPLIED TO
BAN ALL PICKETING, WITH "NO EXCEPTIONS BASED UPON EITHER THE NUMBER OF
PERSONS ENGAGED IN THE PROSCRIBED ACTIVITY, THE PEACEFUL CHARACTER OF
THEIR DEMEANOR, THE NATURE OF THEIR DISPUTE WITH AN EMPLOYER, OR THE
RESTRAINED CHARACTER AND THE ACCURATENESS OF THE TERMINOLOGY USED IN
NOTIFYING THE PUBLIC OF THE FACTS OF THE DISPUTE."  THORNHILL V.
ALABAMA, 310 U.S. 88, 99.  AS THE STATUTE DEALT AT LARGE WITH ALL
PICKETING, SO THE COURT BROADLY ASSIMILATED PEACEFUL PICKETING IN
GENERAL TO FREEDOM OF SPEECH, AND AS SUCH PROTECTED AGAINST ABRIDGMENT
BY THE FOURTEENTH AMENDMENT. 

THESE PRINCIPLES WERE APPLIED BY THE COURT IN A.F. OF L. V. SWING,
312 U.S. 321, TO HOLD UNCONSTITUTIONAL AN INJUNCTION AGAINST PEACEFUL
PICKETING, BASED ON A STATE'S COMMON-LAW POLICY AGAINST PICKETING WHEN
THERE WAS NO IMMEDIATE DISPUTE BETWEEN EMPLOYER AND EMPLOYEE.  ON THE
SAME DAY, HOWEVER, THE COURT UPHELD A GENERALIZED INJUNCTION AGAINST
PICKETING WHERE THERE HAD BEEN VIOLENCE BECAUSE "IT COULD JUSTIFIABLY
BE CONCLUDED THAT THE MOMENTUM OF FEAR GENERATED BY PAST VIOLENCE WOULD
SURVIVE EVEN THOUGH FUTURE PICKETING MIGHT BE WHOLLY PEACEFUL."  MILK
WAGON DRIVERS UNION V. MEADOWMOOR DAIRIES, 312 U.S. 287, 294. 

SOON, HOWEVER, THE COURT CAME TO REALIZE THAT THE BROAD
PRONOUNCEMENTS, BUT NOT THE SPECIFIC HOLDING, OF THORNHILL HAD TO YIELD
"TO THE IMPACT OF FACTS UNFORESEEN," OR AT LEAST NOT SUFFICIENTLY
APPRECIATED.  CF. PEOPLE V. SCHWEINLER PRESS, 214 N.Y. 395, 108 N.E.
639, 28 HARV. L. REV. 790.  CASES REACHED THE COURT IN WHICH A STATE
HAD DESIGNED A REMEDY TO MEET A SPECIFIC SITUATION OR TO ACCOMPLISH A
PARTICULAR SOCIAL POLICY.  THESE CASES MADE MANIFEST THAT PICKETING,
EVEN THOUGH "PEACEFUL," INVOLVED MORE THAN JUST COMMUNICATION OF IDEAS
AND COULD NOT BE IMMUNE FROM ALL STATE REGULATION.  "PICKETING BY AN
ORGANIZED GROUP IS MORE THAN FREE SPEECH, SINCE IT INVOLVES PATROL OF A
PARTICULAR LOCALITY AND SINCE THE VERY PRESENCE OF A PICKET LINE MAY
INDUCE ACTION OF ONE KIND OR ANOTHER, QUITE IRRESPECTIVE OF THE NATURE
OF THE IDEAS WHICH ARE BEING DISSEMINATED."  BAKERY DRIVERS LOCAL V.
WOHL, 315 U.S. 769, 776 (CONCURRING OPINION); SEE CARPENTERS UNION V.
RITTER'S CAFE, 315 U.S. 722, 725-728. 

THESE LATTER TWO CASES REQUIRED THE COURT TO REVIEW A CHOICE MADE BY
TWO STATES BETWEEN THE COMPETING INTERESTS OF UNIONS, EMPLOYERS, THEIR
EMPLOYEES, AND THE PUBLIC AT LARGE.  IN THE RITTER'S CAFE CASE, TEXAS
HAD ENJOINED AS A VIOLATION OF ITS ANTITRUST LAW PICKETING OF A
RESTAURANT BY UNIONS TO BRING PRESSURE ON ITS OWNER WITH RESPECT TO THE
USE OF NONUNION LABOR BY A CONTRACTOR OF THE RESTAURANT OWNER IN THE
CONSTRUCTION OF A BUILDING HAVING NOTHING TO DO WITH THE RESTAURANT. 
THE COURT HELD THAT TEXAS COULD, CONSISTENT WITH THE FOURTEENTH
AMENDMENT, INSULATE FROM THE DISPUTE A NEUTRAL ESTABLISHMENT THAT
INDUSTRIALLY HAD NO CONNECTION WITH IT.  THIS TYPE OF PICKETING
CERTAINLY INVOLVED LITTLE, IF ANY, "COMMUNICATION." 

IN BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769, IN A VERY NARROWLY
RESTRICTED DECISION, THE COURT HELD THAT BECAUSE OF THE IMPOSSIBILITY
OF OTHERWISE PUBLICIZING A LEGITIMATE GRIEVANCE AND BECAUSE OF THE
SLIGHT EFFECT ON "STRANGERS" TO THE DISPUTE, A STATE COULD NOT
CONSTITUTIONALLY PROHIBIT A UNION FROM PICKETING BAKERIES IN ITS
EFFORTS TO HAVE INDEPENDENT PEDDLERS, BUYING FROM BAKERS AND SELLING TO
SMALL STORES, CONFORM TO CERTAIN UNION REQUESTS.  ALTHOUGH THE COURT IN
RITTER'S CAFE AND WOHL DID NOT QUESTION THE HOLDING OF THORNHILL, THE
STRONG RELIANCE ON THE PARTICULAR FACTS IN EACH CASE DEMONSTRATED A
GROWING AWARENESS THAT THESE CASES INVOLVED NOT SO MUCH QUESTIONS OF
FREE SPEECH AS REVIEW OF THE BALANCE STRUCK BY A STATE BETWEEN
PICKETING THAT INVOLVED MORE THAN "PUBLICITY" AND COMPETING INTERESTS
OF STATE POLICY.  (SEE ALSO CAFETERIA UNION V. ANGELOS, 320 U.S. 293,
WHERE THE COURT REVIEWED A NEW YORK INJUNCTION AGAINST PICKETING BY A
UNION OF A RESTAURANT THAT WAS RUN BY THE OWNERS WITHOUT EMPLOYEES. 
THE NEW YORK COURT APPEARED TO HAVE JUSTIFIED AN INJUNCTION ON THE
ALTERNATE GROUNDS THAT THERE WAS NO "LABOR DISPUTE" UNDER THE NEW YORK
STATUTE OR THAT USE OF UNTRUTHFUL PLACARDS JUSTIFIED THE INJUNCTION. 
WE HELD, IN A BRIEF OPINION, THAT THE ABUSES ALLEGED DID NOT JUSTIFY AN
INJUNCTION AGAINST ALL PICKETING AND THAT A.F. OF L. V. SWING GOVERNED
THE ALTERNATE GROUND FOR DECISION.) 

THE IMPLIED REASSESSMENTS OF THE BOARD LANGUAGE OF THE THORNHILL CASE
WERE FINALLY GENERALIZED IN A SERIES OF CASES SUSTAINING INJUNCTIONS
AGAINST PEACEFUL PICKETING, EVEN WHEN ARISING IN THE COURSE OF A LABOR
CONTROVERSY, WHEN SUCH PICKETING WAS COUNTER TO VALID STATE POLICY IN A
DOMAIN OPEN TO STATE REGULATION.  THE DECISIVE RECONSIDERATION CAME IN
GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490.  A UNION, SEEKING TO
ORGANIZE PEDDLERS, PICKETED A WHOLESALE DEALER TO INDUCE IT TO REFRAIN
FROM SELLING TO NONUNION PEDDLERS.  THE STATE COURTS, FINDING THAT SUCH
AN AGREEMENT WOULD CONSTITUTE A CONSPIRACY IN RESTRAINT OF TRADE IN
VIOLATION OF THE STATE ANTITRUST LAWS, ENJOINED THE PICKETING.  THIS
COURT AFFIRMED UNANIMOUSLY. 

"IT IS CONTENDED THAT THE INJUNCTION AGAINST PICKETING ADJACENT TO
EMPIRE'S PLACE OF BUSINESS IS AN UNCONSTITUTIONAL ABRIDGMENT OF FREE
SPEECH BECAUSE THE PICKETERS WERE ATTEMPTING PEACEFULLY TO PUBLICIZE
TRUTHFUL FACTS ABOUT A LABOR DISPUTE  ...  .  BUT THE RECORD HERE DOES
NOT PERMIT THIS PUBLICIZING TO BE TREATED IN ISOLATION.  FOR ACCORDING
TO THE PLEADINGS, THE EVIDENCE, THE FINDINGS, AND THE ARGUMENT OF THE
APPELLANTS, THE SOLE IMMEDIATE OBJECT OF THE PUBLICIZING ADJACENT TO
THE PREMISES OF EMPIRE, AS WELL AS THE OTHER ACTIVITIES OF THE
APPELLANTS AND THEIR ALLIES, WAS TO COMPEL EMPIRE TO AGREE TO STOP
SELLING ICE TO NONUNION PEDDLERS.  THUS ALL OF APPELLANTS' ACTIVITIES
...  CONSTITUTED A SINGLE AND INTEGRATED COURSE OF CONDUCT, WHICH WAS
IN VIOLATION OF MISSOURI'S VALID LAW.  IN THIS SITUATION, THE
INJUNCTION DID NO MORE THAN ENJOIN AN OFFENSE AGAINST MISSOURI LAW, A
FELONY."  ID., AT 497-498.    THE COURT THEREFORE CONCLUDED THAT IT WAS
"CLEAR THAT APPELLANTS WERE DOING MORE THAN EXERCISING A RIGHT OF FREE
SPEECH OR PRESS  ...  .  THEY WERE EXERCISING THEIR ECONOMIC POWER
TOGETHER WITH THAT OF THEIR ALLIES TO COMPEL EMPIRE TO ABIDE BY UNION
RATHER THAN BY STATE REGULATION OF TRADE."  ID., AT 503. 

THE FOLLOWING TERM, THE COURT DECIDED A GROUP OF CASES APPLYING AND
ELABORATING ON THE THEORY OF GIBONEY.  IN HUGHES V. SUPERIOR COURT, 339
U.S. 460, THE COURT HELD THAT THE FOURTEENTH AMENDMENT DID NOT BAR USE
OF THE INJUNCTION TO PROHIBIT PICKETING OF A PLACE OF BUSINESS SOLELY
TO SECURE COMPLIANCE WITH A DEMAND THAT ITS EMPLOYEES BE HIRED IN
PERCENTAGE TO THE RACIAL ORIGIN OF ITS CUSTOMERS.  "WE CANNOT CONSTRUE
THE DUE PROCESS CLAUSE AS PRECLUDING CALIFORNIA FROM SECURING RESPECT
FOR ITS POLICY AGAINST INVOLUNTARY EMPLOYMENT ON RACIAL LINES BY
PROHIBITING SYSTEMATIC PICKETING THAT WOULD SUBVERT SUCH POLICY."  ID.,
AT 466.  THE COURT ALSO FOUND IT IMMATERIAL THAT THE STATE POLICY HAD
BEEN EXPRESSED BY THE JUDICIARY RATHER THAN BY THE LEGISLATURE. 

ON THE SAME DAY, THE COURT DECIDED TEAMSTERS UNION V. HANKE, 339 U.S.
470, HOLDING THAT A STATE WAS NOT RESTRAINED BY THE FOURTEENTH
AMENDMENT FROM ENJOINING PICKETING OF A BUSINESS, CONDUCTED BY THE
OWNER HIMSELF WITHOUT EMPLOYEES, IN ORDER TO SECURE COMPLIANCE WITH A
DEMAND TO BECOME A UNION SHOP.  ALTHOUGH THERE WAS NO ONE OPINION FOR
THE COURT, ITS DECISION WAS ANOTHER INSTANCE OF THE AFFIRMANCE OF AN
INJUNCTION AGAINST PICKETING BECAUSE DIRECTED AGAINST A VALID PUBLIC
POLICY OF THE STATE. 

A THIRD CASE, BUILDING SERVICE EMPLOYEES V. GAZZAM, 339 U.S. 532, WAS
DECIDED THE SAME DAY.  FOLLOWING AN UNSUCCESSFUL ATTEMPT AT
UNIONIZATION OF A SMALL HOTEL AND REFUSAL BY THE OWNER TO SIGN A
CONTRACT WITH THE UNION AS BARGAINING AGENT, THE UNION BEGAN TO PICKET
THE HOTEL WITH SIGNS STATING THAT THE OWNER WAS UNFAIR TO ORGANIZED
LABOR.  THE STATE, FINDING THAT THE OBJECT OF THE PICKETING WAS IN
VIOLATION OF ITS STATUTORY POLICY AGAINST EMPLOYER COERCION OF
EMPLOYEES' CHOICE OF BARGAINING REPRESENTATIVE, ENJOINED PICKETING FOR
SUCH PURPOSE.  THIS COURT AFFIRMED, REJECTING THE ARGUMENT THAT "THE
SWING CASE, SUPRA, IS CONTROLLING  ...  .  IN THAT CASE THIS COURT
STRUCK DOWN THE STATE'S RESTRAINT OF PICKETING BASED SOLELY ON THE
ABSENCE OF AN EMPLOYER-EMPLOYEE RELATIONSHIP.   AN ADEQUATE BASIS FOR
THE INSTANT DECREE IS THE UNLAWFUL OBJECTIVE OF THE PICKETING, NAMELY,
COERCION BY THE EMPLOYER OF THE EMPLOYEES' SELECTION OF A BARGAINING
REPRESENTATIVE.  PEACEFUL PICKETING FOR ANY LAWFUL PURPOSE IS NOT
PROHIBITED BY THE DECREE UNDER REVIEW."  ID., AT 539. 

A SIMILAR PROBLEM WAS INVOLVED IN PLUMBERS UNION V. GRAHAM, 345 U.S.
192, WHERE A STATE COURT HAD ENJOINED, AS A VIOLATION OF ITS "RIGHT TO
WORK" LAW, PICKETING THAT ADVERTISED THAT NONUNION MEN WERE BEING
EMPLOYED ON A BUILDING JOB.  THIS COURT FOUND THAT THERE WAS EVIDENCE
IN THE RECORD SUPPORTING A CONCLUSION THAT A SUBSTANTIAL PURPOSE OF THE
PICKETING WAS TO PUT PRESSURE ON THE GENERAL CONTRACTOR TO ELIMINATE
NONUNION MEN FROM THE JOB AND, ON THE REASONING OF THE CASES THAT WE
HAVE JUST DISCUSSED, HELD THAT THE INJUNCTION WAS NOT IN CONFLICT WITH
THE FOURTEENTH AMENDMENT. 

THIS SERIES OF CASES, THEN, ESTABLISHED A BROAD FIELD IN WHICH A
STATE, IN ENFORCING SOME PUBLIC POLICY, WHETHER OF ITS CRIMINAL OR ITS
CIVIL LAW, AND WHETHER ANNOUNCED BY ITS LEGISLATURE OR ITS COURTS,
COULD CONSTITUTIONALLY ENJOIN PEACEFUL PICKETING AIMED AT PREVENTING
EFFECTUATION OF THAT POLICY. 

IN THE LIGHT OF THIS BACKGROUND, THE MAINE SUPREME JUDICIAL COURT IN
1955 DECIDED, ON AN AGREED STATEMENT OF FACTS, THE CASE OF PAPPAS V.
STACEY, 151 ME. 36, 116 A.2D 497.  FROM THE STATEMENT, IT APPEARED THAT
THREE UNION EMPLOYEES WENT ON STRIKE AND PICKETED A RESTAURANT
PEACEFULLY "FOR THE SOLE PURPOSE OF SEEKING TO ORGANIZE OTHER EMPLOYEES
OF THE PLAINTIFF, ULTIMATELY TO HAVE THE PLAINTIFF ENTER INTO
COLLECTIVE BARGAINING AND NEGOTIATIONS WITH THE UNION  ...  ."  MAINE
HAD A STATUTE PROVIDING THAT WORKERS SHOULD HAVE FULL LIBERTY OF SELF
ORGANIZATION, FREE FROM RESTRAINT BY EMPLOYERS OR OTHER PERSONS.  THE
MAINE SUPREME JUDICIAL COURT DREW THE INFERENCE FROM THE AGREED
STATEMENT OF FACTS THAT "THERE IS A STEADY AND EXACTING PRESSURE UPON
THE EMPLOYER TO INTERFERE WITH THE FREE CHOICE OF THE EMPLOYEES IN THE
MATTER OF ORGANIZATION.  TO SAY THAT THE PICKETING IS NOT DESIGNED TO
BRING ABOUT SUCH ACTION IS TO FORGET AN OBVIOUS PURPOSE OF PICKETING -
TO CAUSE ECONOMIC LOSS TO THE BUSINESS DURING NONCOMPLIANCE BY THE
EMPLOYEES WITH THE REQUEST OF THE UNION."  151 ME., AT 42, 116 A.2D, AT
500.  IT THEREFORE ENJOINED THE PICKETING, AND AN APPEAL WAS TAKEN TO
THIS COURT. 

THE WHOLE SERIES OF CASES DISCUSSED ABOVE ALLOWING, AS THEY DID, WIDE
DISCRETION TO A STATE IN THE FORMULATION OF DOMESTIC POLICY, AND NOT
INVOLVING A CURTAILMENT OF FREE SPEECH IN ITS OBVIOUS AND ACCEPTED
SCOPE, LED THIS COURT, WITHOUT THE NEED OF FURTHER ARGUMENT, TO GRANT
APPELLEE'S MOTION TO DISMISS THE APPEAL IN THAT IT NO LONGER PRESENTED
A SUBSTANTIAL FEDERAL QUESTION.  350 U.S. 870. 

THE STACEY CASE IS THIS CASE.  AS IN STACEY, THE PRESENT CASE WAS
TRIED WITHOUT ORAL TESTIMONY.  AS IN STACEY, THE HIGHEST STATE COURT
DREW THE INFERENCE FROM THE FACTS THAT THE PICKETING WAS TO COERCE THE
EMPLOYER TO PUT PRESSURE ON HIS EMPLOYEES TO JOIN THE UNION, IN
VIOLATION OF THE DECLARED POLICY OF THE STATE.  (FOR A DECLARATION OF
SIMILAR CONGRESSIONAL POLICY, SEE SEC. 8 OF THE NATIONAL LABOR
RELATIONS ACT, 61 STAT. 140, 29 U.S.C. SEC. 158.)  THE CASES DISCUSSED
ABOVE ALL HOLD THAT, CONSISTENT WITH THE FOURTEENTH AMENDMENT, A STATE
MAY ENJOIN SUCH CONDUCT. 

OF COURSE, THE MERE FACT THAT THERE IS "PICKETING" DOES NOT
AUTOMATICALLY JUSTIFY ITS RESTRAINT WITHOUT AN INVESTIGATION INTO ITS
CONDUCT AND PURPOSES.  STATE COURTS, NO MORE THAN STATE LEGISLATURES,
CAN ENACT BLANKET PROHIBITIONS AGAINST PICKETING.  THORNHILL V. ALABAMA
AND A.F. OF L. V. SWING, SUPRA.  THE SERIES OF CASES FOLLOWING
THORNHILL AND SWING DEMONSTRATE THAT THE POLICY OF WISCONSIN ENFORCED
BY THE PROHIBITION OF THIS PICKETING IS A VALID ONE.  IN THIS CASE, THE
CIRCUMSTANCES SET FORTH IN THE OPINION OF THE WISCONSIN SUPREME COURT
AFFORD A RATIONAL BASIS FOR THE INFERENCE IT DREW CONCERNING THE
PURPOSE OF THE PICKETING.  NO QUESTION WAS RAISED HERE CONCERNING THE
BREADTH OF THE INJUNCTION, BUT OF COURSE ITS TERMS MUST BE READ IN THE
LIGHT OF THE OPINION OF THE WISCONSIN SUPREME COURT, WHICH JUSTIFIED IT
ON THE GROUND THAT THE PICKETING WAS FOR THE PURPOSE OF COERCING THE
EMPLOYER TO COERCE HIS EMPLOYEES.  "IF ASTUTENESS MAY DISCOVER
ARGUMENTATIVE EXCESS IN THE SCOPE OF THE INJUNCTION BEYOND WHAT WE
CONSTITUTIONALLY JUSTIFY BY THIS OPINION, IT WILL BE OPEN TO
PETITIONERS TO RAISE THE MATTER, WHICH THEY HAVE NOT RAISED HERE, WHEN
THE CASE ON REMAND REACHES THE WISCONSIN COURT."  TEAMSTERS UNION V.
HANKE, 339 U.S., AT 480-481. 

THEREFORE, HAVING DEEMED IT APPROPRIATE TO ELABORATE ON THE ISSUES IN
THE CASE, WE AFFIRM.  AFFIRMED. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THE COURT HAS NOW COME FULL CIRCLE.  IN THORNHILL V. ALABAMA, 310
U.S. 88, 102, WE STRUCK DOWN A STATE BAN ON PICKETING ON THE GROUND
THAT "THE DISSEMINATION OF INFORMATION CONCERNING THE FACTS OF A LABOR
DISPUTE MUST BE REGARDED AS WITHIN THAT AREA OF FREE DISCUSSION THAT IS
GUARANTEED BY THE CONSTITUTION."  LESS THAN ONE YEAR LATER, WE HELD
THAT THE FIRST AMENDMENT PROTECTED ORGANIZATIONAL PICKETING ON A
FACTUAL RECORD WHICH CANNOT BE DISTINGUISHED FROM THE ONE NOW BEFORE
US.  A.F. OF L. V. SWING, 312 U.S. 321.  OF COURSE, WE HAVE ALWAYS
RECOGNIZED THAT PICKETING HAS ASPECTS WHICH MAKE IT MORE THAN SPEECH. 
BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769, 776-777 (CONCURRING
OPINION).  THAT DIFFERENCE UNDERLIES OUR DECISION IN GIBONEY V. EMPIRE
STORAGE & ICE CO., 336 U.S. 490.  THERE, PICKETING WAS AN ESSENTIAL
PART OF "A SINGLE AND INTEGRATED COURSE OF CONDUCT, WHICH WAS IN
VIOLATION OF MISSOURI'S VALID LAW."  ID., AT 498.  AND SEE LABOR BOARD
V. VIRGINIA POWER CO., 314 U.S. 469, 477-478.  WE EMPHASIZED THAT
"THERE WAS CLEAR DANGER, IMMINENT AND IMMEDIATE, THAT UNLESS
RESTRAINED, APPELLANTS WOULD SUCCEED IN MAKING THE STATE POLICY A DEAD
LETTER  ...  ."  336 U.S., AT 503.  SPEECH THERE WAS ENJOINED BECAUSE
IT WAS AN INSEPARABLE PART OF CONDUCT WHICH THE STATE CONSTITUTIONALLY
COULD AND DID REGULATE. 

BUT WHERE, AS HERE, THERE IS NO RIOTING, NO MASS PICKETING, NO
VIOLENCE, NO DISORDER, NO FISTICUFFS, NO COERCION - INDEED NOTHING BUT
SPEECH - THE PRINCIPLES ANNOUNCED IN THORNHILL AND SWING SHOULD GIVE
THE ADVOCACY OF ONE SIDE OF A DISPUTE FIRST AMENDMENT PROTECTION. 

THE RETREAT BEGAN WHEN, IN TEAMSTERS UNION V. HANKE, 339 U.S. 470,
FOUR MEMBERS OF THE COURT ANNOUNCED THAT ALL PICKETING COULD BE
PROHIBITED IF A STATE COURT DECIDED THAT THAT PICKETING VIOLATED THE
STATE'S PUBLIC POLICY.  THE RETREAT BECAME A ROUTE IN PLUMBERS UNION V.
GRAHAM, 345 U.S. 192.  IT WAS ONLY THE "PURPOSE" OF THE PICKETING WHICH
WAS RELEVANT.  THE STATE COURT'S CHARACTERIZATION OF THE
PICKETERS'"PURPOSE" HAD BEEN MADE WELL-NIGH CONCLUSIVE.  CONSIDERATIONS
OF THE PROXIMITY OF PICKETING TO CONDUCT WHICH THE STATE COULD CONTROL
OR PREVENT WERE ABANDONED, AND NO LONGER WAS IT NECESSARY FOR THE STATE
COURT'S DECREE TO BE NARROWLY DRAWN TO PRESCRIBE A SPECIFIC EVIL.  ID.,
AT 201-205 (DISSENTING OPINION). 

TODAY, THE COURT SIGNS THE FORMAL SURRENDER.  STATE COURTS AND STATE
LEGISLATURES CANNOT FASHION BLANKET PROHIBITIONS ON ALL PICKETING. 
BUT, FOR PRACTICAL PURPOSES, THE SITUATION NOW IS AS IT WAS WHEN SENN
V. TILE LAYERS UNION, 301 U.S. 468, WAS DECIDED.  STATE COURTS AND
STATE LEGISLATURES ARE FREE TO DECIDE WHETHER TO PERMIT OR SUPPRESS ANY
PARTICULAR PICKET LINE FOR ANY REASON OTHER THAN A BLANKET POLICY
AGAINST ALL PICKETING.  I WOULD ADHERE TO THE PRINCIPLE ANNOUNCED IN
THORNHILL.  I WOULD ADHERE TO THE RESULT REACHED IN SWING.  I WOULD
RETURN TO THE TEST ENUNCIATED IN GIBONEY - THAT THIS FORM OF EXPRESSION
CAN BE REGULATED OR PROHIBITED ONLY TO THE EXTENT THAT IT FORMS AN
ESSENTIAL PART OF A COURSE OF CONDUCT WHICH THE STATE CAN REGULATE OR
PROHIBIT.  I WOULD REVERSE THE JUDGMENT BELOW. 
..END :





















YATES V. UNITED STATES 354 U.S. 298 


NO. 6.  ARGUED OCTOBER 8-9, 1956.  - DECIDED JUNE 17, 1957.  - 225 F.2D
146, REVERSED AND REMANDED. 


THE 14 PETITIONERS, LEADERS OF THE COMMUNIST PARTY IN CALIFORNIA, WERE
INDICTED IN 1951 IN A FEDERAL DISTRICT COURT UNDER SEC. 3 OF THE SMITH
ACT AND 18 U.S.C. SEC. 371 FOR CONSPIRING (1) TO ADVOCATE AND TEACH THE
DUTY AND NECESSITY OF OVERTHROWING THE GOVERNMENT OF THE UNITED STATES
BY FORCE AND VIOLENCE, AND (2) TO ORGANIZE, AS THE COMMUNIST PARTY OF
THE UNITED STATES, A SOCIETY OF PERSONS WHO SO ADVOCATE AND TEACH, ALL
WITH THE INTENT OF CAUSING THE OVERTHROW OF THE GOVERNMENT BY FORCE AND
VIOLENCE AS SPEEDILY AS CIRCUMSTANCES WOULD PERMIT.  THE INDICTMENT
CHARGED THAT THE CONSPIRACY ORIGINATED IN 1940 AND CONTINUED DOWN TO
THE DATE OF THE INDICTMENT AND THAT, IN CARRYING IT OUT, PETITIONERS
AND THEIR CO-CONSPIRATORS WOULD (A) BECOME MEMBERS AND OFFICERS OF THE
COMMUNIST PARTY, WITH KNOWLEDGE OF ITS UNLAWFUL PURPOSES, AND ASSUME
LEADERSHIP IN CARRYING OUT ITS POLICIES AND ACTIVITIES, (B) CAUSE TO BE
ORGANIZED UNITS OF THE PARTY IN CALIFORNIA AND ELSEWHERE, (C) WRITE AND
PUBLISH ARTICLES ON SUCH ADVOCACY AND TEACHING, (D) CONDUCT SCHOOLS FOR
THE INDOCTRINATION OF PARTY MEMBERS IN SUCH ADVOCACY AND TEACHING, AND
(E) RECRUIT NEW PARTY MEMBERS, PARTICULARLY FROM AMONG PERSONS EMPLOYED
IN THE KEY INDUSTRIES OF THE NATION.  IT ALSO ALLEGED 23 OVERT ACTS IN
FURTHERANCE OF THE CONSPIRACY.  PETITIONERS WERE CONVICTED AFTER A JURY
TRIAL, AND THEIR CONVICTIONS WERE SUSTAINED BY THE COURT OF APPEALS. 
HELD:  THE CONVICTIONS ARE REVERSED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO ENTER JUDGMENTS OF ACQUITTAL AS TO
FIVE OF THE PETITIONERS AND TO GRANT A NEW TRIAL AS TO THE OTHERS.  PP.
300-338. 

1.  SINCE THE COMMUNIST PARTY CAME INTO BEING IN 1945, AND THE
INDICTMENT WAS NOT RETURNED UNTIL 1951, THE THREE-YEAR STATUTE OF
LIMITATIONS HAD RUN ON THE "ORGANIZING" CHARGE, AND REQUIRED THE
WITHDRAWAL OF THAT PART OF THE INDICTMENT FROM THE JURY'S
CONSIDERATION.  PP. 303-312. 

(A)  APPLYING THE RULE THAT CRIMINAL STATUTES ARE TO BE CONSTRUED
STRICTLY, THE WORD "ORGANIZE," AS USED IN THE SMITH ACT, IS CONSTRUED
AS REFERRING ONLY TO ACTS ENTERING INTO THE CREATION OF A NEW
ORGANIZATION, AND NOT TO ACTS THEREAFTER PERFORMED IN CARRYING ON ITS
ACTIVITIES, EVEN THOUGH THE LATTER MAY LOOSELY BE TERMED
"ORGANIZATIONAL."  PP. 303-311. 

(B)  THE TRIAL COURT'S MISTAKEN CONSTRUCTION OF THE WORD "ORGANIZE"
WAS NOT HARMLESS ERROR; THE CIRCUMSTANCES ARE SUCH AS TO CALL FOR
APPLICATION OF THE RULE WHICH REQUIRES A VERDICT TO BE SET ASIDE WHERE
IT IS SUPPORTABLE ON ONE GROUND, BUT NOT ANOTHER, AND IT IS IMPOSSIBLE
TO TELL WHICH GROUND THE JURY SELECTED.  PP. 311-312. 

2.  THE SMITH ACT DOES NOT PROHIBIT ADVOCACY AND TEACHING OF FORCIBLE
OVERTHROW OF THE GOVERNMENT AS AN ABSTRACT PRINCIPLE, DIVORCED FROM ANY
EFFORT TO INSTIGATE ACTION TO THAT END; THE TRIAL COURT'S CHARGE TO THE
JURY FURNISHED WHOLLY INADEQUATE GUIDANCE ON THIS CENTRAL POINT IN THE
CASE; AND THE CONVICTION CANNOT BE ALLOWED TO STAND.  DENNIS V. UNITED
STATES, 341 U.S. 494, DISTINGUISHED.  PP. 312-327. 

3.  THE EVIDENCE AGAINST FIVE OF THE PETITIONERS IS SO CLEARLY
INSUFFICIENT THAT THEIR ACQUITTAL SHOULD BE ORDERED, BUT THAT AS TO THE
OTHERS IS SUCH AS NOT TO JUSTIFY CLOSING THE WAY TO THEIR RETRIAL.  PP.
327-334. 

4.  DETERMINATIONS FAVORABLE TO PETITIONER SCHNEIDERMAN MADE BY THIS
COURT IN SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, A
DENATURALIZATION PROCEEDING IN WHICH HE WAS THE PREVAILING PARTY, ARE
NOT CONCLUSIVE IN THIS PROCEEDING UNDER THE DOCTRINE OF COLLATERAL
ESTOPPEL, AND HE IS NOT ENTITLED TO A JUDGMENT OF ACQUITTAL ON THAT
GROUND.  FEDERAL TRADE COMMISSION V. CEMENT INSTITUTE, 333 U.S. 683. 
PP. 335-338. 

YATES ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT.* 

*TOGETHER WITH NO. 7, SCHNEIDERMAN V. UNITED STATES, AND NO. 8,
RICHMOND ET AL. V. UNITED STATES, ALSO ON CERTIORARI TO THE SAME
COURT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THESE CASES HERE TO CONSIDER CERTAIN QUESTIONS ARISING
UNDER THE SMITH ACT WHICH HAVE NOT HERETOFORE BEEN PASSED UPON BY THIS
COURT, AND OTHERWISE TO REVIEW THE CONVICTIONS OF THESE PETITIONERS FOR
CONSPIRACY TO VIOLATE THAT ACT.  AMONG OTHER THINGS, THE CONVICTIONS
ARE CLAIMED TO REST UPON AN APPLICATION OF THE SMITH ACT WHICH IS
HOSTILE TO THE PRINCIPLES UPON WHICH ITS CONSTITUTIONALITY WAS UPHELD
IN DENNIS V. UNITED STATES, 341 U.S. 494. 

THESE 14 PETITIONERS STAND CONVICTED, AFTER A JURY TRIAL IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA,
UPON A SINGLE COUNT INDICTMENT CHARGING THEM WITH CONSPIRING (1) TO
ADVOCATE AND TEACH THE DUTY AND NECESSITY OF OVERTHROWING THE
GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE, AND (2) TO
ORGANIZE, AS THE COMMUNIST PARTY OF THE UNITED STATES, A SOCIETY OF
PERSONS WHO SO ADVOCATE AND TEACH, ALL WITH THE INTENT OF CAUSING THE
OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE AS SPEEDILY AS
CIRCUMSTANCES WOULD PERMIT.  ACT OF JUNE 28, 1940, SEC. 2(A)(1) AND
(3), 54 STAT. 670, 671, 18 U.S.C. SECS.  371, 2385.  (FN1)  THE
CONSPIRACY IS ALLEGED TO HAVE ORIGINATED IN 1940 AND CONTINUED DOWN TO
THE DATE OF THE INDICTMENT IN 1951.  THE INDICTMENT CHARGED THAT IN
CARRYING OUT THE CONSPIRACY THE DEFENDANTS AND THEIR CO-CONSPIRATORS
WOULD (A) BECOME MEMBERS AND OFFICERS OF THE COMMUNIST PARTY, WITH
KNOWLEDGE OF ITS UNLAWFUL PURPOSES, AND ASSUME LEADERSHIP IN CARRYING
OUT ITS POLICIES AND ACTIVITIES; (B) CAUSE TO BE ORGANIZED UNITS OF THE
PARTY IN CALIFORNIA AND ELSEWHERE; (C) WRITE AND PUBLISH, IN THE "DAILY
WORKER" AND OTHER PARTY ORGANS, ARTICLES ON THE PROSCRIBED ADVOCACY AND
TEACHING; (D) CONDUCT SCHOOLS FOR THE INDOCTRINATION OF PARTY MEMBERS
IN SUCH ADVOCACY AND TEACHING, AND (E) RECRUIT NEW PARTY MEMBERS,
PARTICULARLY FROM AMONG PERSONS EMPLOYED IN THE KEY INDUSTRIES OF THE
NATION.  TWENTY-THREE OVERT ACTS IN FURTHERANCE OF THE CONSPIRACY WERE
ALLEGED. 

UPON CONVICTION EACH OF THE PETITIONERS WAS SENTENCED TO FIVE YEARS'
IMPRISONMENT AND A FINE OF $10,000.  THE COURT OF APPEALS AFFIRMED. 
225 F.2D 146.  WE GRANTED CERTIORARI FOR THE REASONS ALREADY
INDICATED.  350 U.S. 860. 

IN THE VIEW WE TAKE OF THIS CASE, IT IS NECESSARY FOR US TO CONSIDER
ONLY THE FOLLOWING OF PETITIONERS' CONTENTIONS:  (1) THAT THE TERM
"ORGANIZE" AS USED IN THE SMITH ACT WAS ERRONEOUSLY CONSTRUED BY THE
TWO LOWER COURTS; (2) THAT THE TRIAL COURT'S INSTRUCTIONS TO THE JURY
ERRONEOUSLY EXCLUDED FORM THE CASE THE ISSUE OF "INCITEMENT TO ACTION";
(3) THAT THE EVIDENCE WAS SO INSUFFICIENT AS TO REQUIRE THIS COURT TO
DIRECT THE ACQUITTAL OF THESE PETITIONERS; AND (4) THAT PETITIONER
SCHNEIDERMAN'S CONVICTION WAS PRECLUDED BY THIS COURT'S JUDGMENT IN
SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, UNDER THE DOCTRINE OF
COLLATERAL ESTOPPEL.  (FN2)  FOR REASONS GIVEN HEREAFTER, WE CONCLUDE
THAT THESE CONVICTIONS MUST BE REVERSED AND THE CASE REMANDED TO THE
DISTRICT COURT WITH INSTRUCTIONS TO ENTER JUDGMENTS OF ACQUITTAL AS TO
CERTAIN OF THE PETITIONERS, AND TO GRANT A NEW TRIAL AS TO THE REST. 

                                  I. THE TERM "ORGANIZE." 

ONE OBJECT OF THE CONSPIRACY CHARGED WAS TO VIOLATE THE THIRD
PARAGRAPH OF 18 U.S.C. SEC. 2385, WHICH PROVIDES: 

"WHOEVER ORGANIZES OR HELPS OR ATTEMPTS TO ORGANIZE ANY SOCIETY,
GROUP, OR ASSEMBLY OF PERSONS WHO TEACH, ADVOCATE, OR ENCOURAGE THE
OVERTHROW OR DESTRUCTION OF ANY GOVERNMENT IN THE UNITED STATES BY
FORCE OR VIOLENCE  ...  SHALL BE FINED NOT MORE THAN $10,000 OR
IMPRISONED NOT MORE THAN TEN YEARS, OR BOTH  ...  ."  (FN3) 

PETITIONERS CLAIM THAT "ORGANIZE" MEANS TO "ESTABLISH," "FOUND," OR
"BRING INTO EXISTENCE," AND THAT IN THIS SENSE THE COMMUNIST PARTY
(FN4) WAS ORGANIZED BY 1945 AT THE LATEST.  (FN5)  ON THIS BASIS
PETITIONERS CONTEND THAT THIS PART OF THE INDICTMENT, RETURNED IN 1951,
WAS BARRED BY THE THREE-YEAR STATUTE OF LIMITATIONS.  (FN6)  THE
GOVERNMENT, ON THE OTHER HAND, SAYS THAT "ORGANIZE" CONNOTES A
CONTINUING PROCESS WHICH GOES ON THROUGHOUT THE LIFE OF AN
ORGANIZATION, AND THAT, IN THE WORDS OF THE TRIAL COURT'S INSTRUCTIONS
TO THE JURY, THE TERM INCLUDES SUCH THINGS AS "THE RECRUITING OF NEW
MEMBERS AND THE FORMING OF NEW UNITS, AND THE REGROUPING OR EXPANSION
OF EXISTING CLUBS, CLASSES AND OTHER UNITS OF ANY SOCIETY, PARTY, GROUP
OR OTHER ORGANIZATION."  THE TWO COURTS BELOW ACCEPTED THE GOVERNMENT'S
POSITION.  WE THINK, HOWEVER, THAT PETITIONERS' POSITION MUST PREVAIL,
UPON PRINCIPLES STATED BY CHIEF JUSTICE MARSHALL MORE THAN A CENTURY
AGO IN UNITED STATES V. WILTBERGER, 5 WHEAT.  76, 95-96, AS FOLLOWS: 

"THE RULE THAT PENAL LAWS ARE TO BE CONSTRUED STRICTLY, IS PERHAPS
NOT MUCH LESS OLD THAN CONSTRUCTION ITSELF.  IT IS FOUNDED ON THE
TENDERNESS OF THE LAW FOR THE RIGHTS OF INDIVIDUALS; AND ON THE PLAIN
PRINCIPLE THAT THE POWER OF PUNISHMENT IS VESTED IN THE LEGISLATIVE,
NOT IN THE JUDICIAL DEPARTMENT.  IT IS THE LEGISLATURE, NOT THE COURT,
WHICH IS TO DEFINE A CRIME, AND ORDAIN ITS PUNISHMENT. 

"IT IS SAID, THAT NOTWITHSTANDING THIS RULE, THE INTENTION OF THE LAW
MAKER MUST GOVERN IN THE CONSTRUCTION OF PENAL, AS WELL AS OTHER
STATUTES.  THIS IS TRUE.  BUT THIS IS NOT A NEW INDEPENDENT RULE WHICH
SUBVERTS THE OLD.  IT IS A MODIFICATION OF THE ANCIENT MAXIM, AND
AMOUNTS TO THIS, THAT THOUGH PENAL LAWS ARE TO BE CONSTRUED STRICTLY,
THEY ARE NOT TO BE CONSTRUED SO STRICTLY AS TO DEFEAT THE OBVIOUS
INTENTION OF THE LEGISLATURE.  THE MAXIM IS NOT TO BE SO APPLIED AS TO
NARROW THE WORDS OF THE STATUTE TO THE EXCLUSION OF CASES WHICH THOSE
WORDS, IN THEIR ORDINARY ACCEPTATION, OR IN THAT SENSE IN WHICH THE
LEGISLATURE HAS OBVIOUSLY USED THEM, WOULD COMPREHEND.  THE INTENTION
OF THE LEGISLATURE IS TO BE COLLECTED FROM THE WORDS THEY EMPLOY. 
WHERE THERE IS NO AMBIGUITY IN THE WORDS, THERE IS NO ROOM FOR
CONSTRUCTION.  THE CASE MUST BE A STRONG ONE INDEED, WHICH WOULD
JUSTIFY A COURT IN DEPARTING FROM THE PLAIN MEANING OF WORDS,
ESPECIALLY IN A PENAL ACT, IN SEARCH OF AN INTENTION WHICH THE WORDS
THEMSELVES DID NOT SUGGEST.  TO DETERMINE THAT A CASE IS WITHIN THE
INTENTION OF A STATUTE, ITS LANGUAGE MUST AUTHORISE US TO SAY SO.  IT
WOULD BE DANGEROUS, INDEED, TO CARRY THE PRINCIPLE, THAT A CASE WHICH
IS WITHIN THE REASON OR MISCHIEF OF A STATUTE, IS WITHIN ITS
PROVISIONS, SO FAR AS TO PUNISH A CRIME NOT ENUMERATED IN THE STATUTE,
BECAUSE IT IS OF EQUAL ATROCITY, OR OF KINDRED CHARACTER, WITH THOSE
WHICH ARE ENUMERATED.  IF THIS PRINCIPLE HAS EVER BEEN RECOGNIZED IN
EXPOUNDING CRIMINAL LAW, IT HAS BEEN IN CASES OF CONSIDERABLE
IRRITATION, WHICH IT WOULD BE UNSAFE TO CONSIDER AS PRECEDENTS FORMING
A GENERAL RULE FOR OTHER CASES." 

THE STATUTE DOES NOT DEFINE WHAT IS MEANT BY "ORGANIZE."  DICTIONARY
DEFINITIONS ARE OF LITTLE HELP, FOR, AS THOSE OFFERED US SUFFICIENTLY
SHOW, THE TERM IS SUSCEPTIBLE OF BOTH MEANINGS ATTRIBUTED TO IT BY THE
PARTIES HERE.  (FN7)  THE FACT THAT THE COMMUNIST PARTY COMPRISES
VARIOUS COMPONENTS AND ACTIVITIES, IN RELATION TO WHICH SOME OF THE
PETITIONERS BORE THE TITLE OF "ORGANIZER," DOES NOT ADVANCE US TOWARDS
A SOLUTION OF THE PROBLEM.  THE CHARGE HERE IS THAT PETITIONERS
CONSPIRED TO ORGANIZE THE COMMUNIST PARTY, AND UNLESS "ORGANIZE"
EMBRACES THE CONTINUING CONCEPT CONTENDED FOR BY THE GOVERNMENT, THE
ESTABLISHING OF NEW UNITS WITHIN THE PARTY AND SIMILAR ACTIVITIES,
FOLLOWING THE PARTY'S INITIAL FORMATION IN 1945, HAVE NO INDEPENDENT
SIGNIFICANCE OR VITALITY SO FAR AS THE "ORGANIZING" CHARGE IS
INVOLVED.  NOR ARE WE HERE CONCERNED WITH THE QUALITY OF PETITIONERS'
ACTIVITIES AS SUCH, THAT IS, WHETHER PARTICULAR ACTIVITIES MAY PROPERLY
BE CATEGORIZED AS "ORGANIZATIONAL."  RATHER, THE ISSUE IS WHETHER THE
TERM "ORGANIZE" AS USED IN THIS STATUTE IS LIMITED BY TEMPORAL
CONCEPTS.  STATED MOST SIMPLY, THE PROBLEM IS TO CHOOSE BETWEEN TWO
POSSIBLE ANSWERS TO THE QUESTION:  WHEN WAS THE COMMUNIST PARTY
"ORGANIZED"?  PETITIONERS CONTEND THAT THE ONLY NATURAL ANSWER TO THE
QUESTION IS THE FORMATION DATE - IN THIS CASE, 1945.  THE GOVERNMENT
WOULD HAVE US ANSWER THE QUESTION BY SAYING THAT THE PARTY TODAY IS
STILL NOT COMPLETELY "ORGANIZED"; THAT "ORGANIZING" IS A CONTINUING
PROCESS THAT DOES NOT END UNTIL THE ENTITY IS DISSOLVED. 

THE LEGISLATIVE HISTORY OF THE SMITH ACT IS NO MORE REVEALING AS TO
WHAT CONGRESS MEANT BY "ORGANIZE" THAN IS THE STATUTE ITSELF.  THE
GOVERNMENT URGES THAT "ORGANIZE" SHOULD BE GIVEN A BROAD MEANING SINCE
ACCEPTANCE OF THE TERM IN ITS NARROW SENSE WOULD REQUIRE ATTRIBUTING TO
CONGRESS THE INTENT THAT THIS PROVISION OF THE STATUTE SHOULD NOT APPLY
TO THE COMMUNIST PARTY AS IT THEN EXISTED.  THE ARGUMENT IS THAT SINCE
THE COMMUNIST PARTY AS IT THEN EXISTED HAD BEEN BORN IN 1919 AND THE
SMITH ACT WAS NOT PASSED UNTIL 1940, THE USE OF "ORGANIZE" IN ITS
NARROW SENSE WOULD HAVE MEANT THAT THESE PROVISIONS OF THE STATUTE
WOULD NEVER HAVE REACHED THE ACT OF ORGANIZING THE COMMUNIST PARTY,
EXCEPT FOR THE FORTUITOUS REBIRTH OF THE PARTY IN 1945 - AN OCCURRENCE
WHICH, OF COURSE, COULD NOT HAVE BEEN FORESEEN IN 1940.  THIS, SAYS THE
GOVERNMENT, COULD HARDLY HAVE BEEN THE CONGRESSIONAL PURPOSE SINCE THE
SMITH ACT AS A WHOLE WAS PARTICULARLY AIMED AT THE COMMUNIST PARTY, AND
ITS "ORGANIZING" PROVISIONS WERE ESPECIALLY DIRECTED AT THE LEADERS OF
THE MOVEMENT. 

WE FIND THIS ARGUMENT UNPERSUASIVE.  WHILE THE LEGISLATIVE HISTORY OF
THE SMITH ACT DOES SHOW THAT CONCERN ABOUT COMMUNISM WAS A STRONG
FACTOR LEADING TO THIS LEGISLATION, IT ALSO REVEALS THAT THE STATUTE,
WHICH WAS PATTERNED ON STATE ANTI-SEDITION LAWS DIRECTED NOT AGAINST
COMMUNISTS BUT AGAINST ANARCHISTS AND SYNDICALISTS, WAS AIMED EQUALLY
AT ALL GROUPS FALLING WITHIN ITS SCOPE.  (FN8)  MORE IMPORTANT, THERE
IS NO EVIDENCE WHATEVER TO SUPPORT THE THESIS THAT THE ORGANIZING
PROVISION OF THE STATUTE WAS WRITTEN WITH PARTICULAR REFERENCE TO THE
COMMUNIST PARTY.  INDEED, THE CONGRESSIONAL HEARINGS INDICATE THAT IT
WAS THE "ADVOCATING AND TEACHING" PROVISION OF THE ACT, RATHER THAN THE
"ORGANIZING" PROVISION, WHICH WAS ESPECIALLY THOUGHT TO REACH COMMUNIST
ACTIVITIES.  (FN9) 

NOR DO THERE APPEAR TO BE ANY OTHER REASONS FOR ASCRIBING TO
"ORGANIZE" THE GOVERNMENT'S BROAD INTERPRETATION.  WHILE IT IS
UNDERSTANDABLE THAT CONGRESS SHOULD HAVE WISHED TO SUPPLEMENT THE
GENERAL PROVISIONS OF THE SMITH ACT BY A SPECIAL PROVISION DIRECTED AT
THE ACTIVITIES OF THOSE RESPONSIBLE FOR CREATING A NEW ORGANIZATION OF
THE PROSCRIBED TYPE, SUCH AS WAS THE SITUATION INVOLVED IN THE DENNIS
CASE, WE FIND NOTHING WHICH SUGGESTS THAT THE "ORGANIZING" PROVISION
WAS INTENDED TO REACH BEYOND THIS, THAT IS, TO EMBRACE THE ACTIVITIES
OF THOSE CONCERNED WITH CARRYING ON THE AFFAIRS OF AN ALREADY EXISTING
ORGANIZATION.  SUCH ACTIVITIES WERE ALREADY AMPLY COVERED BY OTHER
PROVISIONS OF THE ACT, SUCH AS THE "MEMBERSHIP" CLAUSE, (FN10) AND THE
BASIC PROHIBITION OF "ADVOCACY" IN CONJUNCTION WITH THE CONSPIRACY
PROVISION, AND THERE IS THUS NO NEED TO STRETCH THE "ORGANIZING"
PROVISION TO FILL ANY GAPS IN THE STATUTE.  MOREOVER, IT IS DIFFICULT
TO FIND ANY CONSIDERATIONS, COMPARABLE TO THOSE RELATING TO PERSONS
RESPONSIBLE FOR CREATING A NEW ORGANIZATION, WHICH WOULD HAVE LED THE
CONGRESS TO SINGLE OUT FOR SPECIAL TREATMENT THOSE PERSONS OCCUPYING SO
CALLED ORGANIZATIONAL POSITIONS IN AN EXISTING ORGANIZATION, ESPECIALLY
WHEN THIS SAME SECTION OF THE STATUTE PROSCRIBES MEMBERSHIP IN SUCH AN
ORGANIZATION WITHOUT DRAWING ANY DISTINCTION BETWEEN THOSE HOLDING
EXECUTIVE OFFICE AND OTHERS. 

ON THE OTHER HAND, WE ALSO FIND UNPERSUASIVE PETITIONERS' ARGUMENT AS
TO THE INTENT OF CONGRESS.  IN SUPPORT OF THE NARROWER MEANING OF
"ORGANIZE," THEY ARGUE THAT THE SMITH ACT WAS PATTERNED AFTER THE
CALIFORNIA CRIMINAL SYNDICALISM ACT; (FN11) THAT THE CALIFORNIA COURTS
HAVE CONSISTENTLY TAKEN "ORGANIZE" IN THAT ACT IN ITS NARROW SENSE;
(FN12) AND THAT UNDER SUCH CASES AS WILLIS V. EASTERN TRUST & BANKING
CO., 169 U.S. 295, 304, 309, AND JOINES V. PATTERSON, 274 U.S. 544,
549, IT SHOULD BE PRESUMED THAT CONGRESS IN ADOPTING THE WORDING OF THE
CALIFORNIA ACT INTENDED "ORGANIZE" TO HAVE THE SAME MEANING AS THAT
GIVEN IT BY THE CALIFORNIA COURTS.  AS THE HEARINGS ON THE SMITH ACT
SHOW, HOWEVER, ITS PARTICULAR PROTOTYPE WAS THE NEW YORK CRIMINAL
ANARCHY ACT, (FN13) NOT THE CALIFORNIA STATUTE, AND THE "ORGANIZING"
PROVISIONS OF THE NEW YORK ACT HAVE NEVER BEEN CONSTRUED BY ANY COURT. 
MOREOVER, TO THE EXTENT THAT THE LANGUAGE OF THE CALIFORNIA STATUTE,
WHICH ITSELF WAS PATTERNED ON THE EARLIER NEW YORK LEGISLATION, MIGHT
BE SIGNIFICANT, WE THINK THAT LITTLE WEIGHT CAN BE GIVEN TO THESE
CALIFORNIA DECISIONS.  THE "GENERAL RULE THAT ADOPTION OF THE WORDING
OF A STATUTE FROM ANOTHER LEGISLATIVE JURISDICTION CARRIES WITH IT THE
PREVIOUS JUDICIAL INTERPRETATIONS OF THE WORDING  ...  IS A PRESUMPTION
OF LEGISLATIVE INTENTION  ...  WHICH VARIES IN STRENGTH WITH THE
SIMILARITY OF THE LANGUAGE, THE ESTABLISHED CHARACTER OF THE DECISIONS
IN THE JURISDICTION FROM WHICH THE LANGUAGE WAS ADOPTED AND THE
PRESENCE OR LACK OF OTHER INDICIA OF INTENTION."  CAROLENE PRODUCTS CO.
V. UNITED STATES, 323 U.S. 18, 26.  HERE, THE THREE CALIFORNIA CASES
RELIED ON BY PETITIONERS WERE ALL DECISIONS OF LOWER COURTS, AND, IN
THE ABSENCE OF ANYTHING IN THE LEGISLATIVE HISTORY INDICATING THAT THEY
WERE CALLED TO ITS ATTENTION, WE SHOULD NOT ASSUME THAT CONGRESS WAS
AWARE OF THEM.    WE ARE THUS LEFT TO DETERMINE FOR OURSELVES THE
MEANING OF THIS PROVISION OF THE SMITH ACT, WITHOUT ANY REVEALING
GUIDES AS TO THE INTENT OF CONGRESS.  IN THESE CIRCUMSTANCES WE SHOULD
FOLLOW THE FAMILIAR RULE THAT CRIMINAL STATUTES ARE TO BE STRICTLY
CONSTRUED AND GIVE TO "ORGANIZE" ITS NARROW MEANING, THAT IS, THAT THE
WORD REFERS ONLY TO ACTS ENTERING INTO THE CREATION OF A NEW
ORGANIZATION, AND NOT TO ACTS THEREAFTER PERFORMED IN CARRYING ON ITS
ACTIVITIES, EVEN THOUGH SUCH ACTS MAY LOOSELY BE TERMED
"ORGANIZATIONAL."  SEE UNITED STATES V. WILTBERGER, SUPRA; UNITED
STATES V. LACHER, 134 U.S. 624, 628; UNITED STATES V. GRADWELL, 243
U.S. 476, 485; FASULO V. UNITED STATES, 272 U.S. 620, 628.  SUCH INDEED
IS THE NORMAL USAGE OF THE WORD "ORGANIZE," (FN14) AND UNTIL THE
DECISIONS BELOW IN THIS CASE THE FEDERAL TRIAL COURTS IN WHICH THE
QUESTION HAD ARISEN UNIFORMLY GAVE IT THAT MEANING.  SEE UNITED STATES
V. FLYNN, UNREPORTED (D.C.S.D.N.Y.), NO. C. 137-37, AFF'D, 216 F.2D
354, 358; UNITED STATES V. MESAROSH, 116 F. SUPP. 345, AFF'D, 223 F.2D
449, 465 (DISSENTING OPINION OF HASTIE, J.); SEE ALSO UNITED STATES V.
DENNIS, UNREPORTED (D.C.S.D.N.Y.), NO. C. 128-87, AFF'D, 183 F.2D 201,
341 U.S. 494.  (FN15)  WE TOO THINK THIS STATUTE SHOULD BE READ
"ACCORDING TO THE NATURAL AND OBVIOUS IMPORT OF THE LANGUAGE, WITHOUT
RESORTING TO SUBTLE AND FORCED CONSTRUCTION FOR THE PURPOSE OF EITHER
LIMITING OR EXTENDING ITS OPERATION."  UNITED STATES V. TEMPLE, 105
U.S. 97, 99. 

THE GOVERNMENT CONTENDS THAT EVEN IF THE TRIAL COURT WAS MISTAKEN IN
ITS CONSTRUCTION OF THE STATUTE, THE ERROR WAS HARMLESS BECAUSE THE
CONSPIRACY CHARGED EMBRACED BOTH "ADVOCACY" OF VIOLENT OVERTHROW AND
"ORGANIZING" THE COMMUNIST PARTY, AND THE JURY WAS INSTRUCTED THAT IN
ORDER TO CONVICT IT MUST FIND A CONSPIRACY EXTENDING TO BOTH
OBJECTIVES.  HENCE, THE ARGUMENT IS, THE JURY MUST IN ANY EVENT BE
TAKEN TO HAVE FOUND PETITIONERS GUILTY OF CONSPIRING TO ADVOCATE, AND
THE CONVICTIONS ARE SUPPORTABLE ON THAT BASIS ALONE.  WE CANNOT ACCEPT
THIS PROPOSITION FOR A NUMBER OF REASONS.  THE PORTIONS OF THE TRIAL
COURT'S INSTRUCTIONS RELIED ON BY THE GOVERNMENT ARE NOT SUFFICIENTLY
CLEAR OR SPECIFIC TO WARRANT OUR DRAWING THE INFERENCE THAT THE JURY
UNDERSTOOD IT MUST FIND AN AGREEMENT EXTENDING TO BOTH "ADVOCACY" AND
"ORGANIZING" IN ORDER TO CONVICT.  (FN16)  FURTHER, IN ORDER TO
CONVICT, THE JURY WAS REQUIRED, AS THE COURT CHARGED, TO FIND AN OVERT
ACT WHICH WAS "KNOWINGLY DONE IN FURTHERANCE OF AN OBJECT OR PURPOSE OF
THE CONSPIRACY CHARGED IN THE INDICTMENT," AND WE HAVE NO WAY OF
KNOWING WHETHER THE OVERT ACT FOUND BY THE JURY WAS ONE WHICH IT
BELIEVED TO BE IN FURTHERANCE OF THE "ADVOCACY" RATHER THAN THE
"ORGANIZING" OBJECTIVE OF THE ALLEGED CONSPIRACY.  THE CHARACTER OF
MOST OF THE OVERT ACTS ALLEGED ASSOCIATES THEM AS READILY WITH
"ORGANIZING" AS WITH "ADVOCACY."  (FN17)  IN THESE CIRCUMSTANCES WE
THINK THE PROPER RULE TO BE APPLIED IS THAT WHICH REQUIRES A VERDICT TO
BE SET ASIDE IN CASES WHERE THE VERDICT IS SUPPORTABLE ON ONE GROUND,
BUT NOT ON ANOTHER, AND IT IS IMPOSSIBLE TO TELL WHICH GROUND THE JURY
SELECTED.  STROMBERG V. CALIFORNIA, 283 U.S. 359, 367-368; WILLIAMS V.
NORTH CAROLINA, 317 U.S. 287, 291-292; CRAMER V. UNITED STATES, 325
U.S. 1, 36, N. 45. 

WE CONCLUDE, THEREFORE, THAT SINCE THE COMMUNIST PARTY CAME INTO
BEING IN 1945, AND THE INDICTMENT WAS NOT RETURNED UNTIL 1951, THE
THREE-YEAR STATUTE OF LIMITATIONS HAD RUN ON THE "ORGANIZING" CHARGE,
AND REQURED THE WITHDRAWAL OF THAT PART OF THE INDICTMENT FROM THE
JURY'S CONSIDERATION.  SAMUEL V. UNITED STATES, 169 F.2D 787, 798.  SEE
ALSO HAUPT V. UNITED STATES, 330 U.S. 631, 641, N. 1; STROMBERG V.
CALIFORNIA, SUPRA, AT 368. 

                               II.  INSTRUCTIONS TO THE JURY. 

PETITIONERS CONTEND THAT THE INSTRUCTIONS TO THE JURY WERE FATALLY
DEFECTIVE IN THAT THE TRIAL COURT REFUSED TO CHARGE THAT, IN ORDER TO
CONVICT, THE JURY MUST FIND THAT THE ADVOCACY WHICH THE DEFENDANTS
CONSPIRED TO PROMOTE WAS OF A KIND CALCULATED TO "INCITE" PERSONS TO
ACTION FOR THE FORCIBLE OVERTHROW OF THE GOVERNMENT.  IT IS ARGUED THAT
ADVOCACY OF FORCIBLE OVERTHROW AS MERE ABSTRACT DOCTRINE IS WITH THE
FREE SPEECH PROTECTION OF THE FIRST AMENDMENT; THAT THE SMITH ACT,
CONSISTENTLY WITH THAT CONSTITUTIONAL PROVISION, MUST BE TAKEN AS
PROSCRIBING ONLY THE SORT OF ADVOCACY WHICH INCITES TO ILLEGAL ACTION;
AND THAT THE TRIAL COURT'S CHARGE, BY PERMITTING CONVICTION FOR MERE
ADVOCACY, UNRELATED TO ITS TENDENCY TO PRODUCE FORCIBLE ACTION,
RESULTED IN AN UNCONSTITUTIONAL APPLICATION OF THE SMITH ACT.  THE
GOVERNMENT, WHICH AT THE TRIAL ALSO REQUESTED THE COURT TO CHARGE IN
TERMS OF "INCITEMENT," NOW TAKES THE POSITION, HOWEVER, THAT THE TRUE
CONSTITUTIONAL DIVIDING LINE IS NOT BETWEEN INCITING AND ABSTRACT
ADVOCACY OF FORCIBLE OVERTHROW, BUT RATHER BETWEEN ADVOCACY AS SUCH,
IRRESPECTIVE OF ITS INCITING QUALITIES, AND THE MERE DISCUSSION OR
EXPOSITION OF VIOLENT OVERTHROW AS AN ABSTRACT THEORY. 

WE PRINT IN THE MARGIN THE PERTINENT PARTS OF THE TRIAL COURT'S
INSTRUCTIONS.  (FN18)  AFTER TELLING THE JURY THAT IT COULD NOT CONVICT
THE DEFENDANTS FOR HOLDING OR EXPRESSING MERE OPINIONS, BELIEFS, OR
PREDICTIONS RELATING TO VIOLENT OVERTHROW, THE TRIAL COURT DEFINED THE
CONTENT OF THE PROSCRIBED ADVOCACY OR TEACHING IN THE FOLLOWING TERMS,
WHICH ARE CRUCIAL HERE: 

"ANY ADVOCACY OR TEACHING WHICH DOES NOT INCLUDE THE URGING OF FORCE
AND VIOLENCE AS THE MEANS OF OVERTHROWING AND DESTROYING THE GOVERNMENT
OF THE UNITED STATES IS NOT WITHIN THE ISSUE OF THE INDICTMENT HERE AND
CAN CONSTITUTE NO BASIS FOR ANY FINDING AGAINST THE DEFENDANTS. 

"THE KIND OF ADVOCACY AND TEACHING WHICH IS CHARGED AND UPON WHICH
YOUR VERDICT MUST BE REACHED IS NOT MERELY A DESIRABILITY BUT A
NECESSITY THAT THE GOVERNMENT OF THE UNITED STATES BE OVERTHROWN AND
DESTROYED BY FORCE AND VIOLENCE AND NOT MERELY A PROPRIETY BUT A DUTY
TO OVERTHROW AND DESTROY THE GOVERNMENT OF THE UNITED STATES BY FORCE
AND VIOLENCE." 

THERE CAN BE NO DOUBT FROM THE RECORD THAT IN SO INSTRUCTING THE JURY
THE COURT REGARDED AS IMMATERIAL, AND INTENDED TO WITHDRAW FROM THE
JURY'S CONSIDERATION, ANY ISSUE AS TO THE CHARACTER OF THE ADVOCACY IN
TERMS OF ITS CAPACITY TO STIR LISTENERS TO FORCIBLE ACTION.  BOTH THE
PETITIONERS AND THE GOVERNMENT SUBMITTED PROPOSED INSTRUCTIONS WHICH
WOULD HAVE REQUIRED THE JURY TO FIND THAT THE PROSCRIBED ADVOCACY WAS
NOT OF A MERE ABSTRACT DOCTRINE OF FORCIBLE OVERTHROW, BUT OF ACTION TO
THAT END, BY THE USE OF LANGUAGE REASONABLY AND ORDINARILY CALCULATED
TO INCITE PERSONS TO SUCH ACTION.  (FN19)  THE TRIAL COURT REJECTED
THESE PROPOSED INSTRUCTIONS ON THE GROUND THAT ANY NECESSITY FOR GIVING
THEM WHICH MAY HAVE EXISTED AT THE TIME THE DENNIS CASE WAS TRIED
(FN20) WAS REMOVED BY THIS COURT'S SUBSEQUENT DECISION IN THAT CASE. 
THE COURT MADE IT CLEAR IN COLLOQUY WITH COUNSEL THAT IN ITS VIEW THE
ILLEGAL ADVOCACY WAS MADE OUT SIMPLY BY SHOWING THAT WHAT WAS SAID
DEALT WITH FORCIBLE OVERTHROW AND THAT IT WAS UTTERED WITH A SPECIFIC
INTENT TO ACCOMPLISH THAT PURPOSE, (FN21) INSISTING THAT ALL SUCH
ADVOCACY WAS PUNISHABLE "WHETHER IT IS LANGUAGE OF INCITEMENT OR NOT." 
THE COURT OF APPEALS AFFIRMED ON A DIFFERENT THEORY, AS WE SHALL SEE
LATER ON. 

WE ARE THUS FACED WITH THE QUESTION WHETHER THE SMITH ACT PROHIBITS
ADVOCACY AND TEACHING OF FORCIBLE OVERTHROW AS AN ABSTRACT PRINCIPLE,
DIVORCED FROM ANY EFFORT TO INSTIGATE ACTION TO THAT END, SO LONG AS
SUCH ADVOCACY OR TEACHING IS ENGAGED IN WITH EVIL INTENT.  WE HOLD THAT
IT DOES NOT. 

THE DISTINCTION BETWEEN ADVOCACY OF ABSTRACT DOCTRINE AND ADVOCACY
DIRECTED AT PROMOTING UNLAWFUL ACTION IS ONE THAT HAS BEEN CONSISTENTLY
RECOGNIZED IN THE OPINIONS OF THIS COURT, BEGINNING WITH FOX V.
WASHINGTON, 236 U.S. 273, AND SCHENCK V. UNITED STATES, 249 U.S. 47. 
(FN22)  THIS DISTINCTION WAS HEAVILY UNDERSCORED IN GITLOW V. NEW YORK,
268 U.S. 652, IN WHICH THE STATUTE INVOLVED (FN23) WAS NEARLY IDENTICAL
WITH THE ONE NOW BEFORE US, AND WHERE THE COURT, DESPITE THE NARROW
VIEW THERE TAKEN OF THE FIRST AMENDMENT, (FN24) SAID: 

"THE STATUTE DOES NOT PENALIZE THE UTTERANCE OR PUBLICATION OF
ABSTRACT 'DOCTRINE' OR ACADEMIC DISCUSSION HAVING NO QUALITY OF
INCITEMENT TO ANY CONCRETE ACTION  ...  .  IT IS NOT THE ABSTRACT
'DOCTRINE' OF OVERTHROWING ORGANIZED GOVERNMENT BY UNLAWFUL MEANS WHICH
IS DENOUNCED BY THE STATUTE, BUT THE ADVOCACY OF ACTION FOR THE
ACCOMPLISHMENT OF THAT PURPOSE  ...  .  THIS MANIFESTO  ...  IS IN THE
LANGUAGE OF DIRECT INCITEMENT  ...  .  THAT THE JURY WERE WARRANTED IN
FINDING THAT THE MANIFESTO ADVOCATED NOT MERELY THE ABSTRACT DOCTRINE
OF OVERTHROWING ORGANIZED GOVERNMENT BY FORCE, VIOLENCE AND UNLAWFUL
MEANS, BUT ACTION TO THAT END, IS CLEAR  ...  .  THAT UTTERANCES
INCITING TO THE OVERTHROW OF ORGANIZED GOVERNMENT BY UNLAWFUL MEANS,
PRESENT A SUFFICIENT DANGER OF SUBSTANTIVE EVIL TO BRING THEIR
PUNISHMENT WITHIN THE RANGE OF LEGISLATIVE DISCRETION, IS CLEAR."  ID.,
AT 664-669. 

WE NEED NOT, HOWEVER, DECIDE THE ISSUE BEFORE US IN TERMS OF
CONSTITUTIONAL COMPULSION, FOR OUR FIRST DUTY IS TO CONSTRUE THIS
STATUTE.  IN DOING SO WE SHOULD NOT ASSUME THAT CONGRESS CHOSE TO
DISREGARD A CONSTITUTIONAL DANGER ZONE SO CLEARLY MARKED, OR THAT IT
USED THE WORDS "ADVOCATE" AND "TEACH" IN THEIR ORDINARY DICTIONARY
MEANINGS WHEN THEY HAD ALREADY BEEN CONSTRUED AS TERMS OF ART CARRYING
A SPECIAL AND LIMITED CONNOTATION.  SEE WILLIS V. EASTERN TRUST &
BANKING CO., SUPRA; JOINES V. PATTERSON, SUPRA; JAMES V. APPEL, 192
U.S. 129, 135.  THE GITLOW CASE AND THE NEW YORK CRIMINAL ANARCHY ACT
THERE INVOLVED, WHICH FURNISHED THE PROTOTYPE FOR THE SMITH ACT, WERE
BOTH KNOWN AND ADVERTED TO BY CONGRESS IN THE COURSE OF THE LEGISLATIVE
PROCEEDINGS.  (FN25)  CF. CAROLENE PRODUCTS CO. V. UNITED STATES,
SUPRA.  THE LEGISLATIVE HISTORY OF THE SMITH ACT AND RELATED BILLS
SHOWS BEYOND ALL QUESTION THAT CONGRESS WAS AWARE OF THE DISTINCTION
BETWEEN THE ADVOCACY OR TEACHING OF ABSTRACT DOCTRINE AND THE ADVOCACY
OR TEACHING OF ACTION, AND THAT IT DID NOT INTEND TO DISREGARD IT.
(FN26)  THE STATUTE WAS AIMED AT THE ADVOCACY AND TEACHING OF CONCRETE
ACTION FOR THE FORCIBLE OVERTHROW OF THE GOVERNMENT, AND NOT OF
PRINCIPLES DIVORCED FROM ACTION. 

THE GOVERNMENT'S RELIANCE ON THIS COURT'S DECISION IN DENNIS IS
MISPLACED.  THE JURY INSTRUCTIONS WHICH WERE REFUSED HERE WERE GIVEN
THERE, (FN27) AND WERE REFERRED TO BY THIS COURT AS REQUIRING "THE JURY
TO FIND THE FACTS ESSENTIAL TO ESTABLISH THE SUBSTANTIVE CRIME."  341
U.S., AT 512.  IT IS TRUE THAT AT ONE POINT IN THE LATE CHIEF JUSTICE'S
OPINION IT IS STATED THAT THE SMITH ACT "IS DIRECTED AT ADVOCACY, NOT
DISCUSSION," ID., AT 502, BUT IT IS CLEAR THAT THE REFERENCE WAS TO
ADVOCACY OF ACTION, NOT IDEAS, FOR IN THE VERY NEXT SENTENCE THE
OPINION EMPHASIZES THAT THE JURY WAS PROPERLY INSTRUCTED THAT THERE
COULD BE NO CONVICTION FOR "ADVOCACY IN THE REALM OF IDEAS."  THE TWO
CONCURRING OPINIONS IN THAT CASE LIKEWISE EMPHASIZE THE DISTINCTION
WITH WHICH WE ARE CONCERNED.   ID., AT 518, 534, 536, 545, 546, 547,
571, 572. 

IN FAILING TO DISTINGUISH BETWEEN ADVOCACY OF FORCIBLE OVERTHROW AS
AN ABSTRACT DOCTRINE AND ADVOCACY OF ACTION TO THAT END, THE DISTRICT
COURT APPEARS TO HAVE BEEN LED ASTRAY BY THE HOLDING IN DENNIS THAT
ADVOCACY OF VIOLENT ACTION TO BE TAKEN AT SOME FUTURE TIME WAS ENOUGH. 
IT SEEMS TO HAVE CONSIDERED THAT, SINCE "INCITING" SPEECH IS USUALLY
THOUGHT OF AS SOMETHING CALCULATED TO INDUCE IMMEDIATE ACTION, AND
SINCE DENNIS HELD ADVOCACY OF ACTION FOR FUTURE OVERTHROW SUFFICIENT,
THIS MEANT THAT ADVOCACY, IRRESPECTIVE OF ITS TENDENCY TO GENERATE
ACTION, IS PUNISHABLE, PROVIDED ONLY THAT IT IS UTTERED WITH A SPECIFIC
INTENT TO ACCOMPLISH OVERTHROW.  IN OTHER WORDS, THE DISTRICT COURT
APPARENTLY THOUGHT THAT DENNIS OBLITERATED THE TRADITIONAL DIVIDING
LINE BETWEEN ADVOCACY OF ABSTRACT DOCTRINE AND ADVOCACY OF ACTION. 
(FN28) 

THIS MISCONCEIVES THE SITUATION CONFRONTING THE COURT IN DENNIS AND
WHAT WAS HELD THERE.  ALTHOUGH THE JURY'S VERDICT, INTERPRETED IN LIGHT
OF THE TRIAL COURT'S INSTRUCTIONS, (FN29) DID NOT JUSTIFY THE
CONCLUSION THAT THE DEFENDANTS' ADVOCACY WAS DIRECTED AT, OR CREATED
ANY DANGER OF, IMMEDIATE OVERTHROW, IT DID ESTABLISH THAT THE ADVOCACY
WAS AIMED AT BUILDING UP A SEDITIOUS GROUP AND MAINTAINING IT IN
READINESS FOR ACTION AT A PROPITIOUS TIME.  IN SUCH CIRCUMSTANCES, SAID
CHIEF JUSTICE VINSON, THE GOVERNMENT NEED NOT HOLD ITS HAND "UNTIL THE
PUTSCH IS ABOUT TO BE EXECUTED, THE PLANS HAVE BEEN LAID AND THE SIGNAL
IS AWAITED.  IF GOVERNMENT IS AWARE THAT A GROUP AIMING AT ITS
OVERTHROW IS ATTEMPTING TO INDOCTRINATE ITS MEMBERS AND TO COMMIT THEM
TO A COURSE WHEREBY THEY WILL STRIKE WHEN THE LEADERS FEEL THE
CIRCUMSTANCES PERMIT, ACTION BY THE GOVERNMENT IS REQUIRED."  341 U.S.,
AT 509.  THE ESSENCE OF THE DENNIS HOLDING WAS THAT INDOCTRINATION OF A
GROUP IN PREPARATION FOR FUTURE VIOLENT ACTION, AS WELL AS EXHORTATION
TO IMMEDIATE ACTION, BY ADVOCACY FOUND TO BE DIRECTED TO "ACTION FOR
THE ACCOMPLISHMENT" OF FORCIBLE OVERTHROW, TO VIOLENCE AS "A RULE OR
PRINCIPLE OF ACTION," AND EMPLOYING "LANGUAGE OF INCITEMENT," ID., AT
511-512, IS NOT CONSTITUTIONALLY PROTECTED WHEN THE GROUP IS OF
SUFFICIENT SIZE AND COHESIVENESS, IS SUFFICIENTLY ORIENTED TOWARDS
ACTION, AND OTHER CIRCUMSTANCES ARE SUCH AS REASONABLY TO JUSTIFY
APPREHENSION THAT ACTION WILL OCCUR.  THIS IS QUITE A DIFFERENT THING
FROM THE VIEW OF THE DISTRICT COURT HERE THAT MERE DOCTRINAL
JUSTIFICATION OF FORCIBLE OVERTHROW, IF ENGAGED IN WITH THE INTENT TO
ACCOMPLISH OVERTHROW, IS PUNISHABLE PER SE UNDER THE SMITH ACT.  THAT
SORT OF ADVOCACY, EVEN THOUGH UTTERED WITH THE HOPE THAT IT MAY
ULTIMATELY LEAD TO VIOLENT REVOLUTION, IS TOO REMOTE FROM CONCRETE
ACTION TO BE REGARDED AS THE KIND OF INDOCTRINATION PREPARATORY TO
ACTION WHICH WAS CONDEMNED IN DENNIS.  AS ONE OF THE CONCURRING
OPINIONS IN DENNIS PUT IT:  "THROUGHOUT OUR DECISIONS THERE HAS
RECURRED A DISTINCTION BETWEEN THE STATEMENT OF AN IDEA WHICH MAY
PROMPT ITS HEARERS TO TAKE UNLAWFUL ACTION, AND ADVOCACY THAT SUCH
ACTION BE TAKEN."  ID., AT 545.  THERE IS NOTHING IN DENNIS WHICH MAKES
THAT HISTORIC DISTINCTION OBSOLETE. 

THE COURT OF APPEALS TOOK A DIFFERENT VIEW FROM THAT OF THE DISTRICT
COURT.  WHILE SEEMINGLY RECOGNIZING THAT THE PROSCRIBED ADVOCACY MUST
BE ASSOCIATED IN SOME WAY WITH ACTION, AND THAT THE INSTRUCTIONS GIVEN
THE JURY HERE FELL SHORT IN THAT RESPECT, IT CONSIDERED THAT THE
INSTRUCTIONS WHICH THE TRIAL COURT REFUSED WERE UNNECESSARY IN THIS
INSTANCE BECAUSE ESTABLISHMENT OF THE CONSPIRACY, HERE CHARGED UNDER
THE GENERAL CONSPIRACY STATUTE, REQUIRED PROOF OF AN OVERT ACT, WHEREAS
IN DENNIS, WHERE THE CONSPIRACY WAS CHARGED UNDER THE SMITH ACT, NO
OVERT ACT WAS REQUIRED.  (FN30)  IN OTHER WORDS, THE COURT OF APPEALS
THOUGHT THAT THE REQUIREMENT OF PROVING AN OVERT ACT WAS AN ADEQUATE
SUBSTITUTE FOR THE LINKING OF THE ADVOCACY TO ACTION WHICH WOULD
OTHERWISE HAVE BEEN NECESSARY.  (FN31)  THIS, OF COURSE, IS A MISTAKEN
NOTION, FOR THE OVERT ACT WILL NOT NECESSARILY EVIDENCE THE CHARACTER
OF THE ADVOCACY ENGAGED IN, NOR, INDEED, IS AN AGREEMENT TO ADVOCATE
FORCIBLE OVERTHROW ITSELF AN UNLAWFUL CONSPIRACY IF IT DOES NOT CALL
FOR ADVOCACY OF ACTION.  THE STATEMENT IN DENNIS THAT "IT IS THE
EXISTENCE OF THE CONSPIRACY WHICH CREATES THE DANGER," 341 U.S., AT
511, DOES NOT SUPPORT THE COURT OF APPEALS.  BEARING IN MIND THAT
DENNIS, LIKE ALL OTHER SMITH ACT CONSPIRACY CASES THUS FAR, INCLUDING
THIS ONE, INVOLVED ADVOCACY WHICH HAD ALREADY TAKEN PLACE, AND NOT
ADVOCACY STILL TO OCCUR, IT IS CLEAR THAT IN CONTEXT THE PHRASE JUST
QUOTED REFERRED TO MORE THAN THE BASIC AGREEMENT TO ADVOCATE.  "THE
MERE FACT THAT DURING THE INDICTMENT PERIOD PETITIONERS' ACTIVITIES DID
NOT RESULT IN AN ATTEMPT TO OVERTHROW THE GOVERNMENT BY FORCE AND
VIOLENCE IS OF COURSE NO ANSWER TO THE FACT THAT THERE WAS A GROUP THAT
WAS READY TO MAKE THE ATTEMPT.  THE FORMATION BY PETITIONERS OF SUCH A
HIGHLY ORGANIZED CONSPIRACY, WITH RIGIDLY DISCIPLINED MEMBERS SUBJECT
TO CALL WHEN THE LEADERS, THESE PETITIONERS, FELT THAT THE TIME HAD
COME FOR ACTION, COUPLED WITH  ...  WORLD CONDITIONS,  ...  DISPOSES OF
THE CONTENTION THAT A CONSPIRACY TO ADVOCATE, AS DISTINGUISHED FROM THE
ADVOCACY ITSELF, CANNOT BE CONSTITUTIONALLY RESTRAINED, BECAUSE IT
COMPRISES ONLY THE PREPARATION.  IT IS THE EXISTENCE OF THE CONSPIRACY
WHICH CREATES THE DANGER  ...  .  IF THE INGREDIENTS OF THE REACTION
ARE PRESENT, WE CANNOT BIND THE GOVERNMENT TO WAIT UNTIL THE CATALYST
IS ADDED."  341 U.S., AT 510-511.  THE REFERENCE OF THE TERM
"CONSPIRACY," IN CONTEXT, WAS TO AN AGREEMENT TO ACCOMPLISH OVERTHROW
AT SOME FUTURE TIME, IMPLICIT IN THE JURY'S FINDINGS UNDER THE
INSTRUCTIONS GIVEN, RATHER THAN TO AN AGREEMENT TO SPEAK.  DENNIS WAS
THUS NOT CONCERNED WITH A CONSPIRACY TO ENGAGE AT SOME FUTURE TIME IN
SEDITIOUS ADVOCACY, BUT RATHER WITH A CONSPIRACY TO ADVOCATE PRESENTLY
THE TAKING OF FORCIBLE ACTION IN THE FUTURE.  IT WAS ACTION, NOT
ADVOCACY, THAT WAS TO BE POSTPONED UNTIL "CIRCUMSTANCES" WOULD
"PERMIT."  WE INTIMATE NO VIEWS AS TO WHETHER A CONSPIRACY TO ENGAGE IN
ADVOCACY IN THE FUTURE, WHERE SPEECH WOULD THUS BE SEPARATED FROM
ACTION BY ONE FURTHER REMOVE, IS PUNISHABLE UNDER THE SMITH ACT. 

WE THINK, THUS, THAT BOTH OF THE LOWER COURTS HERE MISCONCEIVED
DENNIS. 

IN LIGHT OF THE FOREGOING WE ARE UNABLE TO REGARD THE DISTRICT
COURT'S CHARGE UPON THIS ASPECT OF THE CASE AS ADEQUATE.  THE JURY WAS
NEVER TOLD THAT THE SMITH ACT DOES NOT DENOUNCE ADVOCACY IN THE SENSE
OF PREACHING ABSTRACTLY THE FORCIBLE OVERTHROW OF THE GOVERNMENT.  WE
THINK THAT THE TRIAL COURT'S STATEMENT THAT THE PROSCRIBED ADVOCACY
MUST INCLUDE THE "URGING," "NECESSITY," AND "DUTY" OF FORCIBLE
OVERTHROW, AND NOT MERELY ITS "DESIRABILITY" AND "PROPRIETY," MAY NOT
BE REGARDED AS A SUFFICIENT SUBSTITUTE FOR CHARGING THAT THE SMITH ACT
REACHES ONLY ADVOCACY OF ACTION FOR THE OVERTHROW OF GOVERNMENT BY
FORCE AND VIOLENCE.  THE ESSENTIAL DISTINCTION IS THAT THOSE TO WHOM
THE ADVOCACY IS ADDRESSED MUST BE URGED TO DO SOMETHING, NOW OR IN THE
FUTURE, RATHER THAN MERELY TO BELIEVE IN SOMETHING.  AT BEST THE
EXPRESSIONS USED BY THE TRIAL COURT WERE EQUIVOCAL, SINCE IN THE
ABSENCE OF ANY INSTRUCTIONS DIFFERENTIATING ADVOCACY OF ABSTRACT
DOCTRINE FROM ADVOCACY OF ACTION, THEY WERE AS CONSISTENT WITH THE
FORMER AS THEY WERE WITH THE LATTER.  NOR DO WE REGARD THEIR AMBIGUITY
AS LESSENED BY WHAT THE TRIAL COURT HAD TO SAY AS TO THE RIGHT OF THE
DEFENDANTS TO ANNOUNCE THEIR BELIEFS AS TO THE INEVITABILITY OF VIOLENT
REVOLUTION, OR TO ADVOCATE OTHER UNPOPULAR OPINIONS.  ESPECIALLY WHEN
IT IS UNMISTAKABLE THAT THE COURT DID NOT CONSIDER THE URGING OF ACTION
FOR FORCIBLE OVERTHROW AS BEING A NECESSARY ELEMENT OF THE PROSCRIBED
ADVOCACY, BUT RATHER CONSIDERED THE CRUCIAL QUESTION TO BE WHETHER THE
ADVOCACY WAS UTTERED WITH A SPECIFIC INTENT TO ACCOMPLISH SUCH
OVERTHROW, (FN32) WE WOULD NOT BE WARRANTED IN ASSUMING THAT THE JURY
DREW FROM THESE INSTRUCTIONS MORE THAN THE COURT ITSELF INTENDED THEM
TO CONVEY. 

NOR CAN WE ACCEPT THE GOVERNMENT'S ARGUMENT THAT THE DISTRICT COURT
WAS JUSTIFIED IN NOT CHARGING MORE THAN IT DID BECAUSE THE REFUSED
INSTRUCTIONS PROPOSED BY BOTH SIDES SPECIFIED THAT THE ADVOCACY MUST BE
OF A CHARACTER REASONABLY CALCULATED TO "INCITE" TO FORCIBLE OVERTHROW,
A TERM WHICH, IT IS NOW ARGUED, MIGHT HAVE CONVEYED TO THE JURY AN
IMPLICATION THAT THE ADVOCACY MUST BE OF IMMEDIATE ACTION.  GRANTING
THAT SOME QUALIFICATIONS OF THE PROPOSED INSTRUCTIONS WOULD HAVE BEEN
PERMISSIBLE TO DISPEL SUCH AN IMPLICATION, AND THAT IT WAS NOT
NECESSARY EVEN THAT THE TRIAL COURT SHOULD HAVE EMPLOYED THE PARTICULAR
TERM "INCITE," IT WAS NEVERTHELESS INCUMBENT ON THE COURT TO MAKE CLEAR
IN SOME FASHION THAT THE ADVOCACY MUST BE OF ACTION AND NOT MERELY
ABSTRACT DOCTRINE.  THE INSTRUCTIONS GIVEN NOT ONLY DO NOT EMPLOY THE
WORD "INCITE," BUT ALSO AVOID THE USE OF SUCH TERMS AND PHRASES AS
"ACTION," "CALL FOR ACTION," "AS A RULE OR PRINCIPLE OF ACTION," AND SO
ON, ALL OF WHICH WERE OFFERED IN ONE FORM OR ANOTHER BY BOTH THE
PETITIONERS AND THE GOVERNMENT.  (FN33) 

WHAT WE FIND LACKING IN THE INSTRUCTIONS HERE IS ILLUSTRATED BY
CONTRASTING THEM WITH THE INSTRUCTIONS GIVEN TO THE DENNIS JURY, UPON
WHICH THIS COURT'S SUSTAINING OF THE CONVICTIONS IN THAT CASE WAS
BOTTOMED.  THERE THE TRIAL COURT CHARGED: 

"IN FURTHER CONSTRUCTION AND INTERPRETATION OF THE STATUTE (THE SMITH
ACT) I CHARGE YOU THAT IT IS NOT THE ABSTRACT DOCTRINE OF OVERTHROWING
OR DESTROYING ORGANIZED GOVERNMENT BY UNLAWFUL MEANS WHICH IS DENOUNCED
BY THIS LAW, BUT THE TEACHING AND ADVOCACY OF ACTION FOR THE
ACCOMPLISHMENT OF THAT PURPOSE, BY LANGUAGE REASONABLY AND ORDINARILY
CALCULATED TO INCITE PERSONS TO SUCH ACTION.  ACCORDINGLY, YOU CANNOT
FIND THE DEFENDANTS OR ANY OF THEM GUILTY OF THE CRIME CHARGED UNLESS
YOU ARE SATISFIED BEYOND A REASONABLE DOUBT THAT THEY CONSPIRED  ...
TO ADVOCATE AND TEACH THE DUTY AND NECESSITY OF OVERTHROWING OR
DESTROYING THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE,
WITH THE INTENT THAT SUCH TEACHING AND ADVOCACY BE OF A RULE OR
PRINCIPLE OF ACTION AND BY LANGUAGE REASONABLY AND ORDINARILY
CALCULATED TO INCITE PERSONS TO SUCH ACTION, ALL WITH THE INTENT TO
CAUSE THE OVERTHROW  ...  AS SPEEDILY AS CIRCUMSTANCES WOULD PERMIT." 
9 F.R.D. 367, 391; AND SEE 341 U.S., AT 511-512. 

WE RECOGNIZE THAT DISTINCTIONS BETWEEN ADVOCACY OR TEACHING OF
ABSTRACT DOCTRINES, WITH EVIL INTENT, AND THAT WHICH IS DIRECTED TO
STIRRING PEOPLE TO ACTION, ARE OFTEN SUBTLE AND DIFFICULT TO GRASP, FOR
IN A BROAD SENSE, AS MR. JUSTICE HOLMES SAID IN HIS DISSENTING OPINION
IN GITLOW, SUPRA, 268 U.S., AT 673:  "EVERY IDEA IS AN INCITEMENT." 
BUT THE VERY SUBTLETY OF THESE DISTINCTIONS REQUIRED THE MOST CLEAR AND
EXPLICIT INSTRUCTIONS WITH REFERENCE TO THEM, FOR THEY CONCERNED AN
ISSUE WHICH WENT TO THE VERY HEART OF THE CHARGES AGAINST THESE
PETITIONERS.  THE NEED FOR PRECISE AND UNDERSTANDABLE INSTRUCTIONS ON
THIS ISSUE IS FURTHER EMPHASIZED BY THE EQUIVOCAL CHARACTER OF THE
EVIDENCE IN THIS RECORD, WITH WHICH WE DEAL IN PART III OF THIS
OPINION.  INSTANCES OF SPEECH THAT COULD BE CONSIDERED TO AMOUNT TO
"ADVOCACY OF ACTION" ARE SO FEW AND FAR BETWEEN AS TO BE ALMOST
COMPLETELY OVERSHADOWED BY THE HUNDREDS OF INSTANCES IN THE RECORD IN
WHICH OVERTHROW, IF MENTIONED AT ALL, OCCURS IN THE COURSE OF DOCTRINAL
DISPUTATION SO REMOTE FROM ACTION AS TO BE ALMOST WHOLLY LACKING IN
PROBATIVE VALUE.  VAGUE REFERENCES TO "REVOLUTIONARY" OR "MILITANT"
ACTION OF AN UNSPECIFIED CHARACTER, WHICH ARE FOUND IN THE EVIDENCE,
MIGHT IN ADDITION BE GIVEN TOO GREAT WEIGHT BY THE JURY IN THE ABSENCE
OF MORE PRECISE INSTRUCTIONS.  PARTICULARLY IN LIGHT OF THIS RECORD, WE
MUST REGARD THE TRIAL COURT'S CHARGE IN THIS RESPECT AS FURNISHING
WHOLLY INADEQUATE GUIDANCE TO THE JURY ON THIS CENTRAL POINT IN THE
CASE.  WE CANNOT ALLOW A CONVICTION TO STAND ON SUCH "AN EQUIVOCAL
DIRECTION TO THE JURY ON A BASIC ISSUE."  BOLLENBACH V. UNITED STATES,
326 U.S. 607, 613. 

                          III.  THE EVIDENCE. 

THE DETERMINATIONS ALREADY MADE REQUIRE A REVERSAL OF THESE
CONVICTIONS.  NEVERTHELESS, IN THE EXERCISE OF OUR POWER UNDER 28
U.S.C. SEC. 2106 TO "DIRECT THE ENTRY OF SUCH APPROPRIATE JUDGMENT ...
AS MAY BE JUST UNDER THE CIRCUMSTANCES," WE HAVE CONCEIVED IT TO BE OUR
DUTY TO SCRUTINIZE THIS LENGTHY RECORD (FN34) WITH CARE, IN ORDER TO
DETERMINE WHETHER THE WAY SHOULD BE LEFT OPEN FOR A NEW TRIAL OF ALL OR
SOME OF THESE PETITIONERS.  SUCH A JUDGMENT, WE THINK, SHOULD, ON THE
ONE HAND, FORECLOSE FURTHER PROCEEDINGS AGAINST THOSE OF THE
PETITIONERS AS TO WHOM THE EVIDENCE IN THIS RECORD WOULD BE PALPABLY
INSUFFICIENT UPON A NEW TRIAL, AND SHOULD, ON THE OTHER HAND, LEAVE THE
GOVERNMENT FREE TO RETRY THE OTHER PETITIONERS UNDER PROPER LEGAL
STANDARDS, ESPECIALLY SINCE IT IS BY NO MEANS CLEAR THAT CERTAIN
ASPECTS OF THE EVIDENCE AGAINST THEM COULD NOT HAVE BEEN CLARIFIED TO
THE ADVANTAGE OF THE GOVERNMENT HAD IT NOT BEEN UNDER A MISAPPREHENSION
AS TO THE BURDEN CAST UPON IT BY THE SMITH ACT.  IN JUDGING THE RECORD
BY THESE CRITERIA WE DO NOT APPLY TO THESE CASES THE RIGOROUS STANDARDS
OF REVIEW WHICH, FOR EXAMPLE, THE COURT OF APPEALS WOULD BE REQUIRED TO
APPLY IN REVIEWING THE EVIDENCE IF ANY OF THESE PETITIONERS ARE
CONVICTED UPON A RETRIAL.  COMPARE DENNIS V. UNITED STATES, SUPRA, AT
516.  RATHER, WE HAVE SCRUTINIZED THE RECORD TO SEE WHETHER THERE ARE
INDIVIDUALS AS TO WHOM ACQUITTAL IS UNEQUIVOCALLY DEMANDED.  WE DO THIS
BECAUSE IT IS IN GENERAL TOO HYPOTHETICAL AND ABSTRACT AN INQUIRY TO
TRY TO JUDGE WHETHER THE EVIDENCE WOULD HAVE BEEN INADEQUATE HAD THE
CASES BEEN SUBMITTED UNDER A PROPER CHARGE, AND HAD THE GOVERNMENT
REALIZED THAT ALL ITS EVIDENCE MUST BE CHANNELED INTO THE "ADVOCACY"
RATHER THAN THE "ORGANIZING" CHARGE.  WE THINK WE MAY DO THIS BY
DRAWING ON OUR POWER UNDER 28 U.S.C. SEC. 2106, BECAUSE UNDER THAT
STATUTE WE WOULD NO DOUBT BE JUSTIFIED IN REFUSING TO ORDER ACQUITTAL
EVEN WHERE THE EVIDENCE MIGHT BE DEEMED PALPABLY INSUFFICIENT,
PARTICULARLY SINCE PETITIONERS HAVE ASKED IN THE ALTERNATIVE FOR A NEW
TRIAL AS WELL AS FOR ACQUITTAL.  SEE BRYAN V. UNITED STATES, 338 U.S.
552. 

ON THIS BASIS WE HAVE CONCLUDED THAT THE EVIDENCE AGAINST PETITIONERS
CONNELLY, KUSNITZ, RICHMOND, SPECTOR, AND STEINBERG IS SO CLEARLY
INSUFFICIENT THAT THEIR ACQUITTAL SHOULD BE ORDERED, BUT THAT AS TO
PETITIONERS CARLSON, DOBBS, FOX, HEALEY (MRS. CONNELLY), LAMBERT, LIMA,
SCHNEIDERMAN, STACK, AND YATES, WE WOULD NOT BE JUSTIFIED IN CLOSING
THE WAY TO THEIR RETRIAL.  WE PROCEED TO THE REASONS FOR THESE
CONCLUSIONS. 

AT THE OUTSET, IN VIEW OF THE CONCLUSIONS REACHED IN PART I OF THIS
OPINION, WE MUST PUT ASIDE AS AGAINST ALL PETITIONERS THE EVIDENCE
RELATING TO THE "ORGANIZING" ASPECT OF THE ALLEGED CONSPIRACY, EXCEPT
INSOFAR AS IT BEARS UPON THE "ADVOCACY" CHARGE.  THAT, INDEED, DILUTES
IN A SUBSTANTIAL WAY A LARGE PART OF THE EVIDENCE, FOR THE RECORD
UNMISTAKABLY INDICATES THAT THE GOVERNMENT RELIED HEAVILY ON ITS
"ORGANIZING" CHARGE.  TWO FURTHER GENERAL OBSERVATIONS SHOULD ALSO BE
MADE ABOUT THE EVIDENCE AS TO THE "ADVOCACY" CHARGE.  THE FIRST IS THAT
BOTH THE GOVERNMENT AND THE TRIAL COURT EVIDENTLY PROCEEDED ON THE
THEORY THAT ADVOCACY OF ABSTRACT DOCTRINE WAS ENOUGH TO OFFEND THE
SMITH ACT, WHEREAS, AS WE HAVE HELD, IT IS ONLY ADVOCACY OF FORCIBLE
ACTION THAT IS PROSCRIBED.  THE SECOND OBSERVATION IS THAT BOTH THE
RECORD AND THE GOVERNMENT'S BRIEF IN THIS COURT MAKE IT CLEAR THAT THE
GOVERNMENT'S THESIS WAS THAT THE COMMUNIST PARTY, OR AT LEAST THE
COMMUNIST PARTY OF CALIFORNIA, CONSTITUTED THE CONSPIRATORIAL GROUP,
AND THAT MEMBERSHIP IN THE CONSPIRACY COULD THEREFORE BE PROVED BY
SHOWING THAT THE INDIVIDUAL PETITIONERS WERE ACTIVELY IDENTIFIED WITH
THE PARTY'S AFFAIRS AND THUS INFERENTIALLY PARTIES TO ITS TENETS.  THIS
MIGHT HAVE BEEN WELL ENOUGH TOWARDS MAKING OUT THE GOVERNMENT'S CASE IF
ADVOCACY OF THE ABSTRACT DOCTRINE OF FORCIBLE OVERTHROW SATISFIED THE
SMITH ACT, FOR WE WOULD AT LEAST HAVE LITTLE DIFFICULTY IN SAYING ON
THIS RECORD THAT A JURY COULD JUSTIFIABLY CONCLUDE THAT SUCH WAS ONE OF
THE TENETS OF THE COMMUNIST PARTY; AND THERE WAS NO DISPUTE AS TO
PETITIONERS' ACTIVE IDENTIFICATION WITH PARTY AFFAIRS.  BUT WHEN IT
COMES TO PARTY ADVOCACY OR TEACHING IN THE SENSE OF A CALL TO FORCIBLE
ACTION AT SOME FUTURE TIME WE CANNOT BUT REGARD THIS RECORD AS
STRIKINGLY DEFICIENT.  AT BEST THIS VOLUMINOUS RECORD SHOWS BUT A HALF
DOZEN OR SO SCATTERED INCIDENTS WHICH, EVEN UNDER THE LOOSEST
STANDARDS, COULD BE DEEMED TO SHOW SUCH ADVOCACY.  MOST OF THESE WERE
NOT CONNECTED WITH ANY OF THE PETITIONERS, OR OCCURRED MANY YEARS
BEFORE THE PERIOD COVERED BY THE INDICTMENT.  WE ARE UNABLE TO REGARD
THIS SPORADIC SHOWING AS SUFFICIENT TO JUSTIFY VIEWING THE COMMUNIST
PARTY AS THE NEXUS BETWEEN THESE PETITIONERS AND THE CONSPIRACY
CHARGED.  WE NEED SCARCELY SAY THAT HOWEVER MUCH ONE MAY ABHOR EVEN THE
ABSTRACT PREACHING OF FORCIBLE OVERTHROW OF GOVERNMENT, OR BELIEVE THAT
FORCIBLE OVERTHROW IS THE ULTIMATE PURPOSE TO WHICH THE COMMUNIST PARTY
IS DEDICATED, IT IS UPON THE EVIDENCE IN THE RECORD THAT THE
PETITIONERS MUST BE JUDGED IN THIS CASE. 

WE MUST, THEN, LOOK ELSEWHERE THAN TO THE EVIDENCE CONCERNING THE
COMMUNIST PARTY AS SUCH FOR THE EXISTENCE OF THE CONSPIRACY TO ADVOCATE
CHARGED IN THE INDICTMENT.  AS TO THE PETITIONERS CONNELLY, KUSNITZ,
RICHMOND, SPECTOR, AND STEINBERG WE FIND NO ADEQUATE EVIDENCE IN THE
RECORD WHICH WOULD PERMIT A JURY TO FIND THAT THEY WERE MEMBERS OF SUCH
A CONSPIRACY.  FOR ALL PURPOSES RELEVANT HERE, THE SOLE EVIDENCE AS TO
THEM WAS THAT THEY HAD LONG BEEN MEMBERS, OFFICERS OR FUNCTIONARIES OF
THE COMMUNIST PARTY OF CALIFORNIA; AND THAT STANDING ALONE, AS CONGRESS
HAS ENACTED IN SEC. 4(F) OF THE INTERNAL SECURITY ACT OF 1950, (FN35)
MAKES OUT NO CASE AGAINST THEM.  SO FAR AS THIS RECORD SHOWS, NONE OF
THEM HAS ENGAGED IN OR BEEN ASSOCIATED WITH ANY BUT WHAT APPEAR TO HAVE
BEEN WHOLLY LAWFUL ACTIVITIES, (FN36) OR HAS EVER MADE A SINGLE REMARK
OR BEEN PRESENT WHEN SOMEONE ELSE MADE A REMARK, WHICH WOULD TEND TO
PROVE THE CHARGES AGAINST THEM.  CONNELLY AND RICHMOND WERE, TO BE
SURE, THE LOS ANGELES AND EXECUTIVE EDITORS, RESPECTIVELY, OF THE DAILY
PEOPLE'S WORLD, THE WEST COAST PARTY ORGAN, BUT WE CAN FIND NOTHING IN
THE MATERIAL INTRODUCED INTO EVIDENCE FROM THAT NEWSPAPER WHICH
ADVANCES THE GOVERNMENT'S CASE. 

MOREOVER, APART FROM THE INADEQUACY OF THE EVIDENCE TO SHOW, AT BEST,
MORE THAN THE ABSTRACT ADVOCACY AND TEACHING OF FORCIBLE OVERTHROW BY
THE PARTY, IT IS DIFFICULT TO PERCEIVE HOW THE REQUISITE SPECIFIC
INTENT TO ACCOMPLISH SUCH OVERTHROW COULD BE DEEMED PROVED BY A SHOWING
OF MERE MEMBERSHIP OR THE HOLDING OF OFFICE IN THE COMMUNIST PARTY.  WE
THEREFORE THINK THAT AS TO THESE PETITIONERS THE EVIDENCE WAS ENTIRELY
TOO MEAGRE TO JUSTIFY PUTTING THEM TO A NEW TRIAL, AND THAT THEIR
ACQUITTAL SHOULD BE ORDERED. 

AS TO THE NINE REMAINING PETITIONERS, WE CONSIDER THAT A DIFFERENT
CONCLUSION SHOULD BE REACHED.  THERE WAS TESTIMONY FROM THE WITNESS
FOARD, AND OTHER EVIDENCE, TYING FOX, HEALEY, LAMBERT, LIMA,
SCHNEIDERMAN, STACK, AND YATES TO PARTY CLASSES CONDUCTED IN THE SAN
FRANCISCO AREA DURING THE YEAR 1946, WHERE THERE OCCURRED WHAT MIGHT BE
CONSIDERED TO BE THE SYSTEMATIC TEACHING AND ADVOCACY OF ILLEGAL ACTION
WHICH IS CONDEMNED BY THE STATUTE.  IT MIGHT BE FOUND THAT ONE OF THE
PURPOSES OF SUCH CLASSES WAS TO DEVELOP IN THE MEMBERS OF THE GROUP A
READINESS TO ENGAGE AT THE CRUCIAL TIME, PERHAPS DURING WAR OR DURING
ATTACK UPON THE UNITED STATES FROM WITHOUT, IN SUCH ACTIVITIES AS
SABOTAGE AND STREET FIGHTING, IN ORDER TO DIVERT AND DIFFUSE THE
RESISTANCE OF THE AUTHORITIES AND IF POSSIBLE TO SEIZE LOCAL VANTAGE
POINTS.  THERE WAS ALSO TESTIMONY AS TO ACTIVITIES IN THE LOS ANGELES
AREA, DURING THE PERIOD COVERED BY THE INDICTMENT, WHICH MIGHT BE
CONSIDERED TO AMOUNT TO "ADVOCACY OF ACTION," AND WITH WHICH
PETITIONERS CARLSON AND DOBBS WERE LINKED.  FROM THE TESTIMONY OF THE
WITNESS SCARLETTO, IT MIGHT BE FOUND THAT INDIVIDUALS CONSIDERED TO BE
PARTICULARLY TRUSTWORTHY WERE TAKEN INTO AN "UNDERGROUND" APPARATUS AND
THERE INSTRUCTED IN TASKS WHICH WOULD BE USEFUL WHEN THE TIME FOR
VIOLENT ACTION ARRIVED.  SCARLETTO WAS SURREPTITIOUSLY INDOCTRINATED IN
METHODS, AS HE SAID, OF MOVING "MASSES OF PEOPLE IN TIME OF CRISIS." 
IT MIGHT BE FOUND, UNDER ALL THE CIRCUMSTANCES, THAT THE PURPOSE OF
THIS TEACHING WAS TO PREPARE THE MEMBERS OF THE UNDERGROUND APPARATUS
TO ENGAGE IN, TO FACILITATE, AND TO COOPERATE WITH VIOLENT ACTION
DIRECTED AGAINST GOVERNMENT WHEN THE TIME WAS RIPE.  IN SHORT, WHILE
THE RECORD CONTAINS EVIDENCE OF LITTLE MORE THAN A GENERAL PROGRAM OF
EDUCATIONAL ACTIVITY BY THE COMMUNIST PARTY WHICH INCLUDED ADVOCACY OF
VIOLENCE AS A THEORETICAL MATTER, WE ARE NOT PREPARED TO SAY, AT THIS
STAGE OF THE CASE, THAT IT WOULD BE IMPOSSIBLE FOR A JURY, RESOLVING
ALL CONFLICTS IN FAVOR OF THE GOVERNMENT AND GIVING THE EVIDENCE AS TO
THESE SAN FRANCISCO AND LOS ANGELES EPISODES ITS UTMOST SWEEP, TO FIND
THAT ADVOCACY OF ACTION WAS ALSO ENGAGED IN WHEN THE GROUP INVOLVED WAS
THOUGHT PARTICULARLY TRUSTWORTHY, DEDICATED, AND SUITED FOR VIOLENT
TASKS. 

NOR CAN WE SAY THAT THE EVIDENCE LINKING THESE NINE PETITIONERS TO
THAT SORT OF ADVOCACY, WITH THE REQUISITE SPECIFIC INTENT, IS SO
TENUOUS AS NOT TO JUSTIFY THEIR RETRIAL UNDER PROPER LEGAL STANDARDS. 
FOX, HEALEY, LAMBERT, LIMA, SCHNEIDERMAN, STACK, AND YATES, AS MEMBERS
OF THE STATE AND SAN FRANCISCO COUNTY BOARDS, WERE SHOWN TO HAVE BEEN
CLOSELY ASSOCIATED WITH IDA ROTHSTEIN, THE PRINCIPAL TEACHER OF THE SAN
FRANCISCO CLASSES, WHO ALSO DURING THIS SAME PERIOD ARRANGED IN A
DEVIOUS AND CONSPIRATORIAL MANNER FOR THE HOLDING OF BOARD MEETINGS AT
THE HOME OF THE WITNESS HONIG, WHICH WERE ATTENDED BY THESE
PETITIONERS.  IT WAS ALSO SHOWN THAT FROM TIME TO TIME INSTRUCTIONS
EMANATED FROM THE BOARDS OR THEIR MEMBERS TO INSTRUCTORS OF GROUPS AT
LOWER LEVELS.  AND WHILE NONE OF THE WRITTEN INSTRUCTIONS PRODUCED AT
THE TRIAL WERE INVIDIOUS IN THEMSELVES, IT MIGHT BE INFERRED THAT
ADDITIONAL INSTRUCTIONS WERE GIVEN WHICH WERE NOT REDUCED TO WRITING. 
SIMILARLY, THERE WAS EVIDENCE OF CLOSE ASSOCIATION BETWEEN PETITIONERS
CARLSON AND DOBBS AND ASSOCIATES OR SUPERIORS OF THE WITNESS SCARLETTO,
WHICH MIGHT BE TAKEN AS INDICATING THAT THESE TWO PETITIONERS HAD
KNOWLEDGE OF THE APPARATUS IN WHICH SCARLETTO WAS ACTIVE.  AND FINALLY,
ALL OF THESE NINE PETITIONERS WERE SHOWN EITHER TO HAVE MADE STATEMENTS
THEMSELVES, OR APPARENTLY APPROVED STATEMENTS MADE IN THEIR PRESENCE,
WHICH A JURY MIGHT TAKE AS SOME EVIDENCE OF THEIR PARTICIPATION WITH
THE REQUISITE INTENT IN A CONSPIRACY TO ADVOCATE ILLEGAL ACTION. 

AS TO THESE NINE PETITIONERS, THEN, WE SHALL NOT ORDER AN ACQUITTAL. 

BEFORE LEAVING THE EVIDENCE, WE CONSIDER IT ADVISABLE, IN ORDER TO
AVOID POSSIBLE MISAPPREHENSION UPON A NEW TRIAL, TO DEAL BRIEFLY WITH
PETITIONERS' CONTENTION THAT THE EVIDENCE WAS INSUFFICIENT TO PROVE THE
OVERT ACT REQUIRED FOR CONVICTION OF CONSPIRACY UNDER 18 U.S.C. SEC.
371.  ONLY 2 OF THE 11 OVERT ACTS ALLEGED IN THE INDICTMENT TO HAVE
OCCURRED WITHIN THE PERIOD OF THE STATUTE OF LIMITATIONS WERE PROVED. 
EACH WAS A PUBLIC MEETING HELD UNDER PARTY AUSPICES AT WHICH SPEECHES
WERE MADE BY ONE OR MORE OF THE PETITIONERS EXTOLLING LEADERS OF THE
SOVIET UNION AND CRITICIZING VARIOUS ASPECTS OF THE FOREIGN POLICY OF
THE UNITED STATES.  AT ONE OF THE MEETINGS AN APPEAL FOR FUNDS WAS
MADE.  PETITIONERS CONTEND THAT THESE MEETINGS DO NOT SATISFY THE
REQUIREMENT OF THE STATUTE THAT THERE BE SHOWN AN ACT DONE BY ONE OF
THE CONSPIRATORS "TO EFFECT THE OBJECT OF THE CONSPIRACY."  THE
GOVERNMENT CONCEDES THAT NOTHING UNLAWFUL WAS SHOWN TO HAVE BEEN SAID
OR DONE AT THESE MEETINGS, BUT CONTENDS THAT THESE OCCURRENCES
NONETHELESS SUFFICED AS OVERT ACTS UNDER THE JURY'S FINDINGS. 

WE THINK THE GOVERNMENT'S POSITION IS CORRECT.  IT IS NOT NECESSARY
THAT AN OVERT ACT BE THE SUBSTANTIVE CRIME CHARGED IN THE INDICTMENT AS
THE OBJECT OF THE CONSPIRACY.  PIERCE V. UNITED STATES, 252 U.S. 239,
244; UNITED STATES V. RABINOWICH, 238 U.S. 78, 86.  NOR, INDEED, NEED
SUCH AN ACT, TAKEN BY ITSELF, EVEN BE CRIMINAL IN CHARACTER.  BRAVERMAN
V. UNITED STATES, 317 U.S. 49.  THE FUNCTION OF THE OVERT ACT IN A
CONSPIRACY PROSECUTION IS SIMPLY TO MANIFEST "THAT THE CONSPIRACY IS AT
WORK," CARLSON V. UNITED STATES, 187 F.2D 366, 370, AND IS NEITHER A
PROJECT STILL RESTING SOLELY IN THE MINDS OF THE CONSPIRATORS NOR A
FULLY COMPLETED OPERATION NO LONGER IN EXISTENCE.  THE SUBSTANTIVE
OFFENSE HERE CHARGED AS THE OBJECT OF THE CONSPIRACY IS SPEECH RATHER
THAN THE SPECIFIC ACTION THAT TYPICALLY CONSTITUTES THE GRAVAMEN OF A
SUBSTANTIVE CRIMINAL OFFENSE.  WERE WE TO HOLD THAT SOME CONCRETE
ACTION LEADING TO THE OVERTHROW OF THE GOVERNMENT WAS REQUIRED, AS
PETITIONERS APPEAR TO SUGGEST, WE WOULD HAVE CHANGED THE NATURE OF THE
OFFENSE ALTOGETHER.  NO SUCH DRASTIC CHANGE IN THE LAW CAN BE DRAWN
FROM CONGRESS' PERFUNCTORY ACTION IN 1948 BRINGING SMITH ACT CASES
WITHIN 18 U.S.C. SEC. 371. 

WHILE UPON A NEW TRIAL THE OVERT ACT MUST BE FOUND, IN VIEW OF WHAT
WE HAVE HELD, TO HAVE BEEN IN FURTHERANCE OF A CONSPIRACY TO
"ADVOCATE," RATHER THAN TO "ORGANIZE," WE ARE NOT PREPARED TO SAY THAT
ONE OF THE EPISODES RELIED ON HERE COULD NOT BE FOUND TO BE IN
FURTHERANCE OF SUCH AN OBJECTIVE, IF, UNDER PROPER INSTRUCTIONS, A JURY
SHOULD FIND THAT THE COMMUNIST PARTY WAS A VEHICLE THROUGH WHICH THE
ALLEGED CONSPIRACY WAS PROMOTED.  WHILE IN VIEW OF OUR ACQUITTAL OF
STEINBERG, THE FIRST OF THESE EPISODES, IN WHICH HE IS ALLEGED TO HAVE
BEEN INVOLVED, MAY NO LONGER BE RELIED ON AS AN OVERT ACT, THIS WOULD
NOT AFFECT THE SECOND EPISODE, IN WHICH PETITIONER SCHNEIDERMAN WAS
ALLEGED AND PROVED TO HAVE PARTICIPATED. 

FOR THE FOREGOING REASONS WE THINK THAT THE WAY MUST BE LEFT OPEN FOR
A NEW TRIAL TO THE EXTENT INDICATED. 

                      IV.  COLLATERAL ESTOPPEL. 

THERE REMAINS TO BE DEALT WITH PETITIONER SCHNEIDERMAN'S CLAIM BASED
ON THE DOCTRINE OF COLLATERAL ESTOPPEL BY JUDGMENT.  PETITIONER URGES
THAT IN SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, A DENATURALIZATION
PROCEEDING IN WHICH HE WAS THE PREVAILING PARTY, THIS COURT MADE
DETERMINATIONS FAVORABLE TO HIM WHICH ARE CONCLUSIVE IN THIS PROCEEDING
UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL.  SPECIFICALLY, PETITIONER
CONTENDS THAT THE SCHNEIDERMAN DECISION DETERMINED, FOR PURPOSES OF
THIS PROCEEDING, (1) THAT THE TEACHING OF MARXISM-LENINISM BY THE
COMMUNIST PARTY WAS NOT NECESSARILY THE ADVOCACY OF VIOLENT OVERTHROW
OF GOVERNMENT; (2) THAT AT LEAST ONE TENABLE CONCLUSION TO BE DRAWN
FROM THE EVIDENCE WAS THAT THE COMMUNIST PARTY DESIRED TO ACHIEVE ITS
GOAL OF SOCIALISM THROUGH PEACEFUL MEANS; (3) THAT IT COULD NOT BE
PRESUMED, MERELY BECAUSE OF HIS MEMBERSHIP OR OFFICERSHIP IN THE
COMMUNIST PARTY, THAT SCHNEIDERMAN ADOPTED AN ILLEGAL INTERPRETATION OF
MARXIST DOCTRINE; AND FINALLY, (4) THAT ABSENT PROOF OF OVERT ACTS
INDICATING THAT SCHNEIDERMAN PERSONALLY ADOPTED A REPREHENSIBLE
INTERPRETATION, THE GOVERNMENT HAD FAILED TO ESTABLISH ITS BURDEN BY
THE CLEAR AND UNEQUIVOCAL EVIDENCE NECESSARY IN A DENATURALIZATION
CASE.  IN THE COURTS BELOW, PETITIONER URGED UNSUCCESSFULLY THAT THESE
DETERMINATIONS WERE CONCLUSIVE IN THIS PROCEEDING UNDER THE DOCTRINE OF
COLLATERAL ESTOPPEL, AND ENTITLED HIM EITHER TO AN ACQUITTAL OR TO
SPECIAL INSTRUCTIONS TO THE JURY.   HE MAKES THE SAME CONTENTIONS
HERE. 

WE ARE IN AGREEMENT WITH PETITIONER THAT THE DOCTRINE OF COLLATERAL
ESTOPPEL IS NOT MADE INAPPLICABLE BY THE FACT THAT THIS IS A CRIMINAL
CASE, WHEREAS THE PRIOR PROCEEDINGS WERE CIVIL IN CHARACTER.  UNITED
STATES V. OPPENHEIMER, 242 U.S. 85.  WE AGREE FURTHER THAT THE
NONEXISTENCE OF A FACT MAY BE ESTABLISHED BY A JUDGMENT NO LESS THAN
ITS EXISTENCE; THAT, IN OTHER WORDS, A PARTY MAY BE PRECLUDED UNDER THE
DOCTRINE OF COLLATERAL ESTOPPEL FROM ATTEMPTING A SECOND TIME TO PROVE
A FACT THAT HE SOUGHT UNSUCCESSFULLY TO PROVE IN A PRIOR ACTION. 
SEALFON V. UNITED STATES, 332 U.S. 575.  NOR NEED WE QUARREL WITH
PETITIONER'S PREMISE THAT THE STANDARD OF PROOF APPLICABLE IN
DENATURALIZATION CASES IS AT LEAST NO GREATER THAN THAT APPLICABLE IN
CRIMINAL PROCEEDINGS.  COMPARE HELVERING V. MITCHELL, 303 U.S. 391;
MURPHY V. UNITED STATES, 272 U.S. 630.  WE ASSUME, WITHOUT DECIDING,
THAT SUBSTANTIALLY THE SAME STANDARDS OF PROOF ARE APPLICABLE IN THE
TWO TYPES OF CASES.  CF. KLAPPROTT V. UNITED STATES, 335 U.S. 601,
612.  NEVERTHELESS, FOR REASONS THAT WILL APPEAR, WE THINK THAT THE
DOCTRINE OF COLLATERAL ESTOPPEL DOES NOT HELP PETITIONER HERE. 

WE DIFFER WITH PETITIONER, FIRST OF ALL, IN HIS ESTIMATE OF WHAT THE
SCHNEIDERMAN CASE DETERMINED FOR PURPOSES OF THE DOCTRINE OF COLLATERAL
ESTOPPEL.  THAT DOCTRINE MAKES CONCLUSIVE IN SUBSEQUENT PROCEEDINGS
ONLY DETERMINATIONS OF FACT, AND MIXED FACT AND LAW, THAT WERE
ESSENTIAL TO THE DECISION.  COMMISSIONER V. SUNNEN, 333 U.S. 591, 601
602; TAIT V. WESTERN MARYLAND R. CO., 289 U.S. 620; THE EVERGREENS V.
NUNAN, 141 F.2D 927, 928.  AS WE READ THE SCHNEIDERMAN OPINION, THE
ONLY DETERMINATION ESSENTIAL TO THE DECISION WAS THAT SCHNEIDERMAN HAD
NOT, PRIOR TO 1927, ADOPTED AN INTERPRETATION OF THE COMMUNIST PARTY'S
TEACHINGS FEATURING "AGITATION AND EXHORTATION CALLING FOR PRESENT
VIOLENT ACTION."  320 U.S., AT 157-159.  IF IT BE ACCEPTED THAT THE
HOLDING EXTENDED IN THE ALTERNATIVE TO THE CHARACTER OF ADVOCACY
ENGAGED IN BY THE COMMUNIST PARTY, THEN THE ESSENTIAL FINDING WAS THAT
THE PARTY HAD NOT, IN 1927, ENGAGED IN "AGITATION AND EXHORTATION
CALLING FOR PRESENT VIOLENT ACTION."  IBID.  THE COURT IN SCHNEIDERMAN
CERTAINLY DID NOT PURPORT TO DETERMINE WHAT THE DOCTRINAL CONTENT OF
"MARXISM-LENINISM" MIGHT BE AT ALL TIMES AND IN ALL PLACES.  NOR DID IT
ESTABLISH THAT THE BOOKS AND PAMPHLETS INTRODUCED AGAINST SCHNEIDERMAN
IN THAT PROCEEDING COULD NOT SUPPORT IN ANY WAY AN INFERENCE OF
CRIMINALITY, NO MATTER HOW OR BY WHOM THEY MIGHT THEREAFTER BE USED. 
AT MOST, WE THINK, IT MADE THE DETERMINATIONS WE HAVE STATED, LIMITED
TO THE TIME AND PLACE THAT WERE THEN IN ISSUE.    IT IS THEREFORE
APPARENT THAT THE DETERMINATIONS MADE BY THIS COURT IN SCHNEIDERMAN
COULD NOT OPERATE AS A COMPLETE BAR TO THIS PROCEEDING.  WHOLLY ASIDE
FROM THE FACT THAT THE COURT WAS THERE CONCERNED WITH THE STATE OF
AFFAIRS EXISTING IN 1927, WHEREAS WE ARE CONCERNED HERE WITH THE PERIOD
1948-1951, THE ISSUES IN THE PRESENT CASE ARE QUITE DIFFERENT.  WE ARE
NOT CONCERNED HERE WITH WHETHER PETITIONER HAS ENGAGED IN "AGITATION
AND EXHORTATION CALLING FOR PRESENT VIOLENT ACTION," WHETHER IN 1927 OR
LATER.  EVEN IF IT WERE CONCLUSIVELY ESTABLISHED AGAINST THE GOVERNMENT
THAT NEITHER PETITIONER NOR THE COMMUNIST PARTY HAD EVER ENGAGED IN
SUCH ADVOCACY, THAT CIRCUMSTANCE WOULD CONSTITUTE NO BAR TO A
CONVICTION UNDER 18 U.S.C.  SEC. 371 OF CONSPIRING TO ADVOCATE FORCIBLE
OVERTHROW OF GOVERNMENT IN VIOLATION OF THE SMITH ACT.  IT IS NOT
NECESSARY FOR CONVICTION HERE THAT ADVOCACY OF "PRESENT VIOLENT ACTION"
BE PROVED.  PETITIONER'S DEMAND FOR JUDGMENT OF ACQUITTAL MUST
THEREFORE BE REJECTED.  THE DECISION IN FEDERAL TRADE COMMISSION V.
CEMENT INSTITUTE, 333 U.S. 683, 708-709, IS PRECISELY IN POINT AND IS
CONTROLLING. 

WHAT WE HAVE SAID WE THINK ALSO DISPOSES OF PETITIONER'S CONTENTION
THAT THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY THAT CERTAIN
EVIDENTIARY OR SUBORDINATE ISSUES MUST BE TAKEN AS CONCLUSIVELY
DETERMINED IN HIS FAVOR.  THE ARGUMENT IS THAT THE DETERMINATIONS MADE
IN THE SCHNEIDERMAN CASE ARE NOT WHOLLY IRRELEVANT TO THIS CASE, EVEN
IF THEY DO NOT CONCLUDE IT, AND HENCE THAT PETITIONER SHOULD BE
ENTITLED TO AN INSTRUCTION GIVING THOSE DETERMINATIONS SUCH PARTIAL
CONCLUSIVE EFFECT AS THEY MIGHT WARRANT.  WE THINK, HOWEVER, THAT THE
DOCTRINE OF COLLATERAL ESTOPPEL DOES NOT ESTABLISH ANY SUCH CONCEPT OF
"CONCLUSIVE EVIDENCE" AS THAT CONTENDED FOR BY PETITIONER.  THE NORMAL
RULE IS THAT A PRIOR JUDGMENT NEED BE GIVEN NO CONCLUSIVE EFFECT AT ALL
UNLESS IT ESTABLISHES ONE OF THE ULTIMATE FACTS IN ISSUE IN THE
SUBSEQUENT PROCEEDING.  SO FAR AS MERELY EVIDENTIARY OR "MEDIATE" FACTS
ARE CONCERNED, THE DOCTRINE OF COLLATERAL ESTOPPEL IS INOPERATIVE.  THE
EVERGREENS V. NUNAN, 141 F.2D 927; RESTATEMENT, JUDGMENTS SEC. 68,
COMMENT P. WHETHER THERE ARE ANY CIRCUMSTANCES IN WHICH THE GIVING OF
LIMITING INSTRUCTIONS SUCH AS THOSE REQUESTED HERE MIGHT BE NECESSARY
OR PROPER, WE NEED NOT NOW DETERMINE.  CF. BORDONARO BROS. THEATRES,
INC. V. PARAMOUNT PICTURES, INC., 203 F.2D 676, 678.  IT IS SUFFICIENT
FOR US TO HOLD THAT IN THIS CASE THE MATTERS OF FACT AND MIXED FACT AND
LAW NECESSARILY DETERMINED BY THE PRIOR JUDGMENT, LIMITED AS THEY WERE
TO THE YEAR 1927, WERE SO REMOTE FROM THE ISSUES AS TO JUSTIFY THEIR
EXCLUSION FROM EVIDENCE IN THE DISCRETION OF THE TRIAL JUDGE. 

SINCE THERE MUST BE A NEW TRIAL, WE HAVE NOT FOUND IT NECESSARY TO
DEAL WITH THE CONTENTIONS OF THE PETITIONERS AS TO THE FAIRNESS OF THE
TRIAL ALREADY HELD.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED,
AND THE CASE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE SMITH ACT, AS ENACTED IN 1940, PROVIDED IN PERTINENT PART AS
FOLLOWS: 

"SEC. 2.  (A)  IT SHALL BE UNLAWFUL FOR ANY PERSON: 

"(1) TO KNOWINGLY OR WILLFULLY ADVOCATE, ABET, ADVISE, OR TEACH THE
DUTY, NECESSITY, DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR
DESTROYING ANY GOVERNMENT IN THE UNITED STATES BY FORCE OR VIOLENCE ...
. 

"(2)  WITH THE INTENT TO CAUSE THE OVERTHROW OR DESTRUCTION OF ANY
GOVERNMENT IN THE UNITED STATES, TO PRINT, PUBLISH, EDIT, ISSUE,
CIRCULATE, SELL, DISTRIBUTE, OR PUBLICLY DISPLAY ANY WRITTEN OR PRINTED
MATTER ADVOCATING, ADVISING, OR TEACHING THE DUTY, NECESSITY,
DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR DESTROYING ANY GOVERNMENT
IN THE UNITED STATES BY FORCE OR VIOLENCE. 

"(3)  TO ORGANIZE OR HELP TO ORGANIZE ANY SOCIETY, GROUP, OR ASSEMBLY
OF PERSONS WHO TEACH, ADVOCATE, OR ENCOURAGE THE OVERTHROW OR
DESTRUCTION OF ANY GOVERNMENT IN THE UNITED STATES BY FORCE OR
VIOLENCE; OR TO BE OR BECOME A MEMBER OF, OR AFFILIATE WITH, ANY SUCH
SOCIETY, GROUP, OR ASSEMBLY OF PERSONS, KNOWING THE PURPOSES THEREOF. 

      *         *         *         *         * 

"SEC. 3.  IT SHALL BE UNLAWFUL FOR ANY PERSON TO ATTEMPT TO COMMIT,
OR TO CONSPIRE TO COMMIT, ANY OF THE ACTS PROHIBITED BY THE PROVISIONS
OF THIS TITLE. 

*         *         *         *         * 

"SEC. 5.  (A)  ANY PERSON WHO VIOLATES ANY OF THE PROVISIONS OF THIS
TITLE SHALL, UPON CONVICTION THEREOF, BE FINED NOT MORE THAN $10,000 OR
IMPRISONED FOR NOT MORE THAN TEN YEARS, OR BOTH." 

EFFECTIVE SEPTEMBER 1, 1948, THE SMITH ACT WAS REPEALED, AND
SUBSTANTIALLY RE-ENACTED AS 18 U.S.C. SEC. 2385, AS PART OF THE 1948
RECODIFICATION.  62 STAT. 808.  SECTION 2385 PROVIDED IN PERTINENT PART
AS FOLLOWS: 

"WHOEVER KNOWINGLY OR WILLFULLY ADVOCATES, ABETS, ADVISES, OR TEACHES
THE DUTY, NECESSITY, DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR
DESTROYING THE GOVERNMENT OF THE UNITED STATES  ... BY FORCE OR
VIOLENCE  ...  ; OR: 

"WHOEVER, WITH INTENT TO CAUSE THE OVERTHROW OR DESTRUCTION OF ANY
SUCH GOVERNMENT, PRINTS, PUBLISHES, EDITS, ISSUES, CIRCULATES, SELLS,
DISTRIBUTES, OR PUBLICLY DISPLAYS ANY WRITTEN OR PRINTED MATTER
ADVOCATING, ADVISING, OR TEACHING THE DUTY, NECESSITY, DESIRABILITY, OR
PROPRIETY OF OVERTHROWING OR DESTROYING ANY GOVERNMENT IN THE UNITED
STATES BY FORCE OR VIOLENCE  ...  ; OR: 

"WHOEVER ORGANIZES OR HELPS OR ATTEMPTS TO ORGANIZE ANY SOCIETY,
GROUP, OR ASSEMBLY OF PERSONS WHO TEACH, ADVOCATE, OR ENCOURAGE THE
OVERTHROW OR DESTRUCTION OF ANY SUCH GOVERNMENT BY FORCE OR VIOLENCE;
OR BECOMES OR IS A MEMBER OF, OR AFFILIATES WITH, ANY SUCH SOCIETY,
GROUP, OR ASSEMBLY OF PERSONS, KNOWING THE PURPOSES THEREOF: 

"SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH  ...  ." 

FOR CONVENIENCE THE ORIGINAL SMITH ACT AND SEC. 2385 WILL BOTH BE
REFERRED TO IN THIS OPINION AS "THE SMITH ACT." 

IT WILL BE NOTED THAT THE RECODIFICATION DID NOT CARRY INTO SEC. 2385
THE CONSPIRACY SECTION OF THE SMITH ACT (SEC. 3).  THE LATTER
PROVISION, HOWEVER, WAS IN SUBSTANCE RESTORED TO SEC.  2385 ON JULY 24,
1956, TO APPLY TO OFFENSES COMMITTED ON OR AFTER THAT DATE.  70 STAT.
623. 

THE CONSPIRACY CHARGED IN THIS CASE WAS LAID UNDER SEC. 3 OF THE
SMITH ACT FOR THE PERIOD 1940 TO SEPTEMBER 1, 1948, AND FOR THE PERIOD
THEREAFTER, DOWN TO THE FILING OF THE INDICTMENT IN 1951, UNDER THE
GENERAL CONSPIRACY STATUTE, 18 U.S.C. SEC. 371, PROVIDING IN PERTINENT
PART AS FOLLOWS: 

"IF TWO OR MORE PERSONS CONSPIRE  ...  TO COMMIT ANY OFFENSE AGAINST
THE UNITED STATES,  ...  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." 

FN2  WE FIND IT UNNECESSARY TO CONSIDER THE PETITIONERS' CONTENTION
WITH RESPECT TO THE DISTRICT COURT'S ALLEGED FAILURE TO APPLY THE
"CLEAR AND PRESENT DANGER" RULE, AS WELL AS THE CONTENTION THAT THEIR
MOTIONS FOR A NEW TRIAL AND A CONTINUANCE WERE ERRONEOUSLY DENIED. 

FN3  SEE NOTE 1, SUPRA, AT P. 302. 

FN4  EXCEPT WHERE OTHERWISE INDICATED, THROUGHOUT THIS OPINION
"COMMUNIST PARTY" REFERS TO THE PRESENT COMMUNIST PARTY OF THE UNITED
STATES. 

FN5  IT IS NOT DISPUTED THAT THE COMMUNIST PARTY, AS REFERRED TO IN
THE INDICTMENT, CAME INTO BEING NO LATER THAN JULY 1945, WHEN THE
COMMUNIST POLITICAL ASSOCIATION WAS DISBANDED AND RECONSTITUTED AS THE
COMMUNIST PARTY OF THE UNITED STATES.  THE ORIGINAL PARTY WAS FOUNDED
IN THIS COUNTRY IN 1919. 

FN6  62 STAT. 828, 18 U.S.C. SEC. 3282. 

FN7  BOTH PETITIONERS AND THE GOVERNMENT CITE THE FOLLOWING
DEFINITIONS OF "ORGANIZE" FROM WEBSTER'S NEW INTERNATIONAL DICTIONARY
(2D ED.): 

"1.  TO FURNISH WITH ORGANS; TO GIVE AN ORGANIC STRUCTURE TO  ...  . 

2.  TO ARRANGE OR CONSTITUTE IN INTERDEPENDENT PARTS, EACH HAVING A
SPECIAL FUNCTION, ACT, OFFICE, OR RELATION WITH RESPECT TO THE WHOLE;
TO SYSTEMATIZE; TO GET INTO WORKING ORDER; AS, TO ORGANIZE AN ARMY; TO
ORGANIZE RECRUITS."  THE GOVERNMENT ALSO GIVES US THE FOLLOWING FROM
FUNK & WAGNALL'S NEW STANDARD DICTIONARY (1947):  "1.  TO BRING INTO
SYSTEMATIC CONNECTION AND COOPERATION AS PARTS OF A WHOLE, OR TO BRING
THE VARIOUS PARTS OF INTO EFFECTIVE CORRELATION AND COOPERATION; AS, TO
ORGANIZE THE PEASANTS INTO AN ARMY."  AND PETITIONERS CITE BLACK'S LAW
DICTIONARY, AS FOLLOWS:  "TO ESTABLISH OR FURNISH WITH ORGANS; TO
SYSTEMATIZE; TO PUT INTO WORKING ORDER; TO ARRANGE IN ORDER FOR THE
NORMAL EXERCISE OF ITS APPROPRIATE FUNCTIONS." 

FN8  REPRESENTATIVE JOHN W. MCCORMACK, ONE OF THE LEADING PROPONENTS
OF THE SMITH ACT, STATED BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON
THE JUDICIARY, HOUSE OF REPRESENTATIVES:  "AND BY THE WAY, THIS BILL IS
NOT ALONE AIMED AT COMMUNISTS; THIS BILL IS AIMED AT ANYONE WHO
ADVOCATES THE OVERTHROW OF GOVERNMENT BY VIOLENCE AND FORCE."  HEARING
BEFORE SUBCOMMITTEE NO. 2 OF THE HOUSE COMMITTEE ON THE JUDICIARY ON
H.R. 4313 AND H.R. 6427, 74TH CONG., 1ST SESS., MAY 22, 1935, SERIAL 5,
P. 3. 

FN9  ID., PASSIM. 

FN10  THE "ORGANIZING" SECTION, SUPRA, N. 1, ALSO MAKES IT AN OFFENSE
"TO BE OR BECOME A MEMBER OF, OR AFFILIATE WITH, ANY SUCH SOCIETY,
GROUP, OR ASSEMBLY OF PERSONS, KNOWING THE PURPOSES THEREOF." 

FN11 CAL. STAT. 1919, C. 188, WEST'S ANN. CAL. CODES, PENAL CODE,
SEC. 11401. 

FN12  SEE PEOPLE V. THURMAN, 62 CAL. APP. 147, 216 P. 394; PEOPLE V.
THORNTON, 63 CAL. APP. 724, 219 P. 1020; PEOPLE V. WARE, 67 CAL. APP.
81, 226 P. 956. 

FN13  N.Y. LAWS 1902, C. 371, MCKINNEY'S N.Y. LAWS, PENAL LAW, SEC.
161. 

FN14  IN OTHER CONTEXTS STATE COURTS HAVE GIVEN THE TERM THAT
MEANING.  SEE STATE EX REL.  CHILDS V. SCHOOL DISTRICT, 54 MINN. 213,
55 N.W. 1122; WHITMIRE V. CASS, 213 S.C. 230, 236, 49 S.E.2D 1, 3;
WARREN V. BARBER ASPHALT PAV.  CO., 115 MO. 572, 576-577, 22 S.W. 490
491; COMMONWEALTH V. WM. MANN CO., 150 PA. 64, 70, 24 A. 601, 602. 

FN15  FOLLOWING THE DECISION OF THE COURT OF APPEALS FOR THE NINTH
CIRCUIT IN THIS CASE, "ORGANIZE" HAS BEEN GIVEN ITS WIDER MEANING BY
TWO DISTRICT COURTS IN THAT CIRCUIT, UNITED STATES V. FUJIMOTO,
REPORTED ON ANOTHER POINT, 107 F. SUPP. 865, AND UNITED STATES V. HUFF,
AS YET UNREPORTED, NOW PENDING ON APPEAL TO THE COURT OF APPEALS.  THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT, FOLLOWING THE NINTH CIRCUIT,
HAS LIKEWISE GIVEN THE TERM ITS BROADER MEANING.  WELLMAN V. UNITED
STATES, 227 F.2D 757. 

FN16  THE TRIAL COURT DID NO MORE ON THIS SCORE THAN TO CHARGE, IN
THE LANGUAGE OF THE INDICTMENT, THAT THE CONSPIRACY HAD TWO OBJECTS,
NAMELY, TO ADVOCATE AND TEACH FORCIBLE OVERTHROW AND TO ORGANIZE THE
COMMUNIST PARTY AS A VEHICLE FOR THAT PURPOSE, AND THEN INSTRUCT THE
JURY THAT IT MUST FIND THAT "THE CONSPIRACY CHARGED IN THE INDICTMENT"
HAD BEEN PROVED BEYOND A REASONABLE DOUBT. 

FN17  OF THE 23 OVERT ACTS CHARGED, 20 ALLEGED ATTENDANCE OF VARIOUS
DEFENDANTS AT MEETINGS OR CONVENTIONS, AND 3 ALLEGED THE ISSUANCE AND
CIRCULATION OF "DIRECTIVES" BY CERTAIN OF THE DEFENDANTS.  ONLY TWO OF
THE ACTS ALLEGED WERE PROVED.  BOTH WERE PARTY MEETINGS UNMARKED BY ANY
ADVOCACY OF THE TYPE THAT THE PETITIONERS WERE ALLEGEDLY CONSPIRING TO
PROMOTE. 

FN18  THE TRIAL COURT CHARGED: 

"AS USED IN THE SMITH ACT AND THE INDICTMENT: 

"(1)  THE WORD 'ADVOCATE' MEANS TO URGE OR 'TO PLEAD IN FAVOR OF; ...
TO SUPPORT, VINDICATE, OR RECOMMEND PUBLICLY  ...  . 

"(2)  THE WORD 'TEACH' MEANS 'TO INSTRUCT  ...  SHOW HOW  ...  TO
GUIDE THE STUDIES OF  ...  .' 

     *         *         *         *     * 

"THE HOLDING OF A BELIEF OR OPINION DOES NOT CONSTITUTE ADVOCACY OR
TEACHING.  HENCE THE SMITH ACT DOES NOT PROHIBIT PERSONS WHO MAY
BELIEVE THAT THE VIOLENT OVERTHROW AND DESTRUCTION OF THE GOVERNMENT OF
THE UNITED STATES IS PROBABLE OR INEVITABLE FROM EXPRESSING THAT
BELIEF.  WHETHER SUCH BELIEF BE REASONABLE OR UNREASONABLE IS
IMMATERIAL.  PREDICTION OR PROPHECY IS NOT ADVOCACY. 

"ANY ADVOCACY OR TEACHING WHICH DOES NOT INCLUDE THE URGING OF FORCE
AND VIOLENCE AS THE MEANS OF OVERTHROWING AND DESTROYING THE GOVERNMENT
OF THE UNITED STATES IS NOT WITHIN THE ISSUE OF THE INDICTMENT HERE AND
CAN CONSTITUTE NO BASIS FOR ANY FINDING AGAINST THE DEFENDANTS. 

"THE KIND OF ADVOCACY AND TEACHING WHICH IS CHARGED AND UPON WHICH
YOUR VERDICT MUST BE REACHED IS NOT MERELY A DESIRABILITY BUT A
NECESSITY THAT THE GOVERNMENT OF THE UNITED STATES BE OVERTHROWN AND
DESTROYED BY FORCE AND VIOLENCE AND NOT MERELY A PROPRIETY BUT A DUTY
TO OVERTHROW AND DESTROY THE GOVERNMENT OF THE UNITED STATES BY FORCE
AND VIOLENCE. 

     *         *         *     *         * 

"THE WORD 'WILFULLY,' AS USED IN THE INDICTMENT, MEANS A STATEMENT OR
DECLARATION MADE OR OTHER ACT DONE WITH THE SPECIFIC INTENT TO CAUSE OR
BRING ABOUT THE OVERTHROW AND DESTRUCTION OF THE GOVERNMENT OF THE
UNITED STATES BY FORCE AND VIOLENCE AS SPEEDILY AS CIRCUMSTANCES WOULD
PERMIT. 

"THE DEFENDANTS, IN COMMON WITH ALL OTHER PERSONS LIVING UNDER OUR
CONSTITUTION, HAVE A GENERAL RIGHT PROTECTED BY THE FIRST AMENDMENT TO
HOLD, EXPRESS, TEACH AND ADVOCATE OPINIONS, EVEN THOUGH THEIR OPINIONS
ARE REJECTED BY THE OVERWHELMING MAJORITY OF THE AMERICAN PEOPLE; AND
HAVE THE FURTHER RIGHT TO ORGANIZE OR COMBINE PEACEABLY WITH OTHER
PERSONS FOR THE PURPOSE OF SPREADING AND PROMOTING THEIR OPINIONS ARE
EFFECTIVELY. 

"WHETHER YOU AGREE WITH THESE OPINIONS OR WHETHER THEY SEEM TO YOU
REASONABLE, UNREASONABLE, ABSURD, DISTASTEFUL OR HATEFUL HAS NO BEARING
WHATEVER ON THE RIGHT OF OTHER PERSONS TO MAINTAIN THEM AND TO SEEK TO
PERSUADE OTHERS OF THEIR VALIDITY.    "NO INFERENCE THAT ANY OF THE
DEFENDANTS KNOWINGLY AND WILFULLY CONSPIRED AS CHARGED IN THE
INDICTMENT, OR INTENDED TO CAUSE OR BRING ABOUT THE OVERTHROW AND
DESTRUCTION OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE AS SPEEDILY AS CIRCUMSTANCES WOULD PERMIT, MAY BE DRAWN FROM
THE ADVOCACY OR TEACHING OF SOCIALISM OR OTHER ECONOMIC OR POLITICAL OR
SOCIAL DOCTRINES, BY REASON OF ANY UNPOPULARITY OF SUCH DOCTRINES OR BY
REASON OF ANY OPINION YOU MAY HOLD WITH RESPECT TO WHETHER SUCH
DOCTRINES, OR THE OPINIONS OR BELIEFS OF ANY OF THE DEFENDANTS, ARE
UNREASONABLE, DISTASTEFUL, ABSURD OR HATEFUL.    "THE DEFENDANTS, IN
COMMON WITH OTHER PERSONS LIVING UNDER OUR CONSTITUTION, HAVE THE RIGHT
PROTECTED BY THE FIRST AMENDMENT TO CRITICIZE OUR SYSTEM OF GOVERNMENT
AND THE GOVERNMENT ITSELF, EVEN THOUGH THE SPEAKING OR WRITING OF SUCH
CRITICISM MAY UNDERMINE CONFIDENCE IN THE GOVERNMENT OR CAUSE OR
INCREASE DISCONTENT.  THEY HAVE THE RIGHT ALSO TO CRITICIZE THE FOREIGN
POLICY OF THE UNITED STATES AND THE ROLE BEING PLAYED BY THIS COUNTRY
IN INTERNATIONAL AFFAIRS; AND TO PRAISE THE FOREIGN POLICY OF OTHER
GOVERNMENTS AND THE ROLE BEING PLAYED BY THOSE GOVERNMENTS IN
INTERNATIONAL AFFAIRS. 

"THE RIGHT OF THE DEFENDANTS TO ENJOY SUCH FREEDOM OF EXPRESSION IS
UNAFFECTED BY WHETHER OR NOT THE OPINIONS SPOKEN OR PUBLISHED MAY SEEM
TO YOU TO BE CRUDELY INTEMPERATE, OR TO CONTAIN FALSEHOODS, OR TO BE
DESIGNED TO EMBARRASS THE GOVERNMENT.  NO INFERENCE OF CONSPIRACY TO
ADVOCATE AND TEACH THE NECESSITY AND DUTY OF OVERTHROW AND DESTRUCTION
OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE, OR OF
INTENT TO CAUSE OR BRING ABOUT THE OVERTHROW AND DESTRUCTION OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE AS SPEEDILY AS
CIRCUMSTANCES WOULD PERMIT, MAY BE DRAWN FROM SUCH EXPRESSIONS ALONE." 

FN19  PETITIONERS' PROPOSED INSTRUCTIONS WERE: 

"WHERE THE SMITH ACT, THE STATUTE WHICH THESE DEFENDANTS ARE CHARGED
WITH CONSPIRING TO VIOLATE, SPEAKS OF ADVOCATING AND TEACHING THE DUTY
AND NECESSITY OF OVERTHROWING THE GOVERNMENT BY FORCE AND VIOLENCE,
THIS REFERS ONLY TO STATEMENTS WHICH, IN THE LANGUAGE OF INCITEMENT TO
ACTION, URGE IMMEDIATE ACTION TO OVERTHROW THE THEN EXISTING GOVERNMENT
UNDER THE THEN EXISTING CIRCUMSTANCES.  A STATEMENT ON THE OTHER HAND,
THAT, IF OUR FORM OF GOVERNMENT SHOULD CHANGE IN THE FUTURE, VIOLENT
OVERTHROW OF THE GOVERNMENT WOULD THEN BECOME NECESSARY AND RIGHT, IS
NOT WITHIN THE SMITH ACT'S PROHIBITION AND WOULD NOT CONSTITUTE ANY
BASIS FOR A FINDING AGAINST THE DEFENDANTS HERE. 

*         *         *         *         * 

"FOR PURPOSES OF THIS TRIAL, A PERSON CAN BE SAID TO TEACH OR
ADVOCATE THE OVERTHROW AND DESTRUCTION OF THE GOVERNMENT OF THE UNITED
STATES BY FORCE AND VIOLENCE ONLY WHEN HIS EXPRESSIONS ARE DESIGNED TO
INDUCE ACTION, RATHER THAN DISCUSSION OR BELIEF, AND ONLY WHEN THEY ARE
EXPRESSED IN LANGUAGE WHICH, UNDER THE CIRCUMSTANCES IN WHICH IT IS
USED, IS REASONABLY AND ORDINARILY CALCULATED TO INCITE PERSONS TO SUCH
ACTION, RATHER THAN MERELY TO DISCUSSION OR BELIEF. 

     *         *         *         * * 

"THE BURDEN IS ON THE PROSECUTION TO SHOW BEYOND A REASONABLE DOUBT
THAT A COMMON UNDERSTANDING EXISTED AMONG THE ALLEGED CO-CONSPIRATORS
AS TO THE SPECIFIC CONTENT OF EXPRESSIONS AMOUNTING TO ADVOCACY OF THE
OVERTHROW AND DESTRUCTION OF THE GOVERNMENT BY FORCE AND VIOLENCE.  THE
GOVERNMENT MUST FURTHER SHOW THAT THIS UNDERSTANDING INCLUDED AN
UNDERSTANDING THAT SUCH ADVOCACY WOULD BE IN LANGUAGE AMOUNTING TO
INCITEMENT TO ACTION AND THAT IT WOULD TAKE PLACE UNDER CIRCUMSTANCES
SUCH AS TO LEAD TO A PROBABILITY THAT IT WOULD INSPIRE PERSONS TO TAKE
ACTION TOWARD VIOLENT OVERTHROW. 

"THE GOVERNMENT'S BURDEN IS NOT MET BY PROOF THAT THE DEFENDANT
SHARED CERTAIN BELIEFS AND MADE JOINT EFFORTS TO PERSUADE OTHER PERSONS
TO ADOPT THEM, NO MATTER WHAT YOU MAY FIND THE CONTENT OF SUCH BELIEFS
TO HAVE BEEN, OR WHETHER YOU MAY AGREE OR DISAGREE WITH SUCH BELIEFS." 

THE GOVERNMENT'S PROPOSED INSTRUCTION WAS: 

"IN FURTHER CONSTRUCTION AND INTERPRETATION OF THE STATUTE I CHARGE
YOU THAT IT IS NOT THE ABSTRACT DOCTRINE OF OVERTHROWING OR DESTROYING
ORGANIZED GOVERNMENT BY UNLAWFUL MEANS WHICH IS DENOUNCED BY THIS LAW,
BUT THE TEACHING AND ADVOCACY OF ACTION FOR THE ACCOMPLISHMENT OF THAT
PURPOSE, BY LANGUAGE REASONABLY AND ORDINARILY CALCULATED TO INCITE
PERSONS TO SUCH ACTION.  ACCORDINGLY, YOU CANNOT FIND THE DEFENDANTS OR
ANY OF THEM GUILTY OF THE CRIME CHARGED UNLESS YOU ARE SATISFIED BEYOND
A REASONABLE DOUBT THAT THEY CONSPIRED TO ORGANIZE A SOCIETY, GROUP AND
ASSEMBLY OF PERSONS WHO TEACH AND ADVOCATE THE OVERTHROW OR DESTRUCTION
OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE AND TO
ADVOCATE AND TEACH THE DUTY AND NECESSITY OF OVERTHROWING OR DESTROYING
THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE, WITH THE
INTENT THAT SUCH TEACHING AND ADVOCACY BE OF A RULE OR PRINCIPLE OF
ACTION AND BY LANGUAGE REASONABLY AND ORDINARILY CALCULATED TO INCITE
PERSONS TO SUCH ACTION, ALL WITH THE INTENT TO CAUSE THE OVERTHROW OR
DESTRUCTION OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE AS SPEEDILY AS CIRCUMSTANCES WOULD PERMIT." 

FN20  THE GOVERNMENT'S PROPOSED INSTRUCTION WAS THAT GIVEN BY THE
TRIAL COURT IN THE DENNIS CASE, 341 U.S. 494.  SEE P. 326, INFRA. 

FN21  HAVING STATED THAT ALL ADVOCACY AND TEACHING OF FORCIBLE
OVERTHROW OF GOVERNMENT WAS PUNISHABLE "WHETHER IT IS LANGUAGE OF
INCITEMENT OR NOT," SO LONG AS IT WAS DONE WITH THE REQUISITE INTENT,
THE COURT ADDED, "IT SEEMS TO ME THIS QUESTION OF 'INCITEMENT TO' IS
INVOLVED AROUND THE QUESTION OF SUFFICIENCY OF EVIDENCE TO INDICATE
INTENT.  THE LANGUAGE USED IS LANGUAGE OF PHILOSOPHY AND THEORY AND
ACADEMIC TREATMENT, RATHER THAN LANGUAGE  ...  OF 'INCITEMENT TO
ACTION.'  IF THE JURY SHOULD CONVICT ON THAT SORT OF LANGUAGE, THE
ARGUMENT WOULD BE THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE
CONVICTION  ...  ." 

FN22  FOR DISCUSSION OF THE PRINCIPAL CASES IN THIS COURT ON THE
SUBJECT, SEE THE SEVERAL OPINIONS IN DENNIS V. UNITED STATES, SUPRA. 

FN23  THE NEW YORK CRIMINAL ANARCHY ACT, NOTE 13, SUPRA. 

FN24  SEE DENNIS V. UNITED STATES, SUPRA, AT 541. 

FN25  HEARINGS ON H.R. 4313 AND H.R. 6427, MAY 22, 1935, AT PP. 5, 6,
CITED IN NOTE 8, SUPRA. 

FN26  AT THE HEARING CITED IN NOTE 8, SUPRA, REPRESENTATIVE MCCORMACK
REPEATEDLY EMPHASIZED THAT THE PROSCRIBED ADVOCACY WAS INCITING
ADVOCACY.  FOR EXAMPLE, HE STATED:  "  ...  THE WORD 'ADVOCACY' MEANS
'IN A MANNER TO INCITE,' AS CONSTRUED BY THE SUPREME COURT IN THE
GITLOW CASE  ...  ."  (P. 5.)  "  ...  GOVERNMENT HAS A RIGHT TO MAKE
IT A CRIME FOR A PERSON TO USE LANGUAGE SPECIFICALLY INCITING TO THE
COMMISSION OF ILLEGAL ACTS  ...  .  IT IS ADVOCACY IN THE MANNER TO
INCITE, KNOWINGLY TO ADVOCATE IN A MANNER TO INCITE TO THE OVERTHROW OF
THE GOVERNMENT  ... ."  (P. 15.)  SEE ALSO PP. 4, 8, 11. 

FN27  SEE P. 326, INFRA. 

FN28  SEE UNITED STATES V. SCHNEIDERMAN, 106 F. SUPP. 906, 923. 

FN29  THE WRIT OF CERTIORARI IN DENNIS DID NOT BRING UP THE
SUFFICIENCY OF THE EVIDENCE.  340 U.S. 863. 

FN30 SEE NOTE 1, SUPRA. 

FN31  THE COURT OF APPEALS STATED, 225 F.2D, AT 151: 

"FINALLY, (REFERRING TO DENNIS) THE OPINION OF THE COURT OF APPEALS
AND A CONCURRING OPINION IN THE SUPREME COURT GAVE APPROVAL OF
INSTRUCTIONS OF THE TRIAL JUDGE IN DENNIS REQUIRING THE JURY TO FIND
'LANGUAGE OF INCITEMENT' WAS USED BY THE CONSPIRATORS THERE.  ANOTHER
PHRASE GIVEN APPROVAL IS THAT THE DOCTRINE OF DESTRUCTION HAD BECOME A
'RULE OF ACTION.'  IN CONJUNCTION WITH AN INDICTMENT BASED UPON SUCH A
STATUTE PROSCRIBING ORGANIZATION FOR THE PURPOSE OF TEACHING AND
ADVOCATING OVERTHROW, BUT WHICH REQUIRED NEITHER PROOF OF OVERT ACTS
NOR A SPECIFICALLY PLANNED OBJECTIVE, SUCH PRECAUTIONARY INSTRUCTIONS
WERE WELL ENOUGH.  BUT THESE EXPRESSIONS OF THE JUDGES IN INSTRUCTIONS
IN CONNECTION WITH THE ORIGINAL STATUTE ESTABLISHED NO UNALTERABLE
REQUIREMENT THAT SUCH PHRASES THEMSELVES BE USED IPSISSIMIS VERBIS
WHERE THE CHANGES IN THE BASIC LAW AND AN ENTIRELY DIFFERENT INDICTMENT
PREDICATED UPON THE CONSPIRACY STATUTE HAVE RENDERED ADMONITIONS TO A
JURY IN SUCH LANGUAGE SUPEREROGATORY." 

AND FURTHER AT P. 162: 

"THE GIST OF THE SUBSTANTIVE CRIME OF CONSPIRACY IS THAT AN UNLAWFUL
COMBINATION AND AGREEMENT BECOMES A POSITIVE CRIME ONLY WHEN SOME OF
THE PROVED CONSPIRATORS ENTER THE FIELD OF ACTION PURSUANT TO THE
CRIMINAL DESIGN.  THEREFORE, IF THE CONSPIRACY DID NOT BECOME A RULE OF
ACTION PURSUANT TO THE PROSCRIBED INTENT, THERE WOULD HAVE BEEN NO
VIOLATION OF THE CONSPIRACY STATUTE.  THE USE OF SUCH PHRASES (AS
INCITEMENT) IN INSTRUCTIONS MIGHT HAVE BEEN WELL ENOUGH WHERE A
VIOLATION OF THE SMITH ACT ALONE WAS CHARGED IN ITS ORIGINAL FORM.  IT
WOULD BE FOLLY TO COMMAND IMPERATIVELY THAT THESE SPECIFIC PHRASES BE
EACH USED IN INSTRUCTIONS AFTER A TRIAL ON AN INDICTMENT SUCH AS THE
PRESENT ONE." 

IT MAY ALSO BE NOTED THAT FOR THE PERIOD 1940 TO SEPTEMBER 1, 1948
(SEE NOTE 1, SUPRA), THE CONSPIRACY CHARGE HERE WAS LAID UNDER THE OLD
SMITH ACT. 

FN32  SEE PP. 317-318, SUPRA. 

FN33  SEE NOTE 19, SUPRA. 

FN34  THE RECORD CONSISTS OF SOME 14,000 TYPEWRITTEN PAGES. 

FN35  64 STAT. 987, 50 U.S.C. SEC. 783(F):  "NEITHER THE HOLDING OF
OFFICE NOR MEMBERSHIP IN ANY COMMUNIST ORGANIZATION BY ANY PERSON SHALL
CONSTITUTE PER SE A VIOLATION OF SUBSECTION (A) OR SUBSECTION (C) OF
THIS SECTION OR OF ANY OTHER CRIMINAL STATUTE." 

FN36  WHILE THERE WAS EVIDENCE THAT MIGHT TEND TO LINK PETITIONER
RICHMOND TO "THE CONSPIRACY," I.E., EVIDENCE OF ASSOCIATION BY HIM WITH
OTHER PETITIONERS, AND WITH AN INDIVIDUAL WHO MIGHT BE FOUND BY THE
JURY TO HAVE ENGAGED DURING THE SAME PERIOD IN THE PROSCRIBED ADVOCACY,
SEE PP. 332-333, INFRA, WE THINK THAT WITHOUT MORE SUCH EVIDENCE WOULD
NOT JUSTIFY REFUSAL TO DIRECT AN ACQUITTAL. 

MR. JUSTICE BURTON, CONCURRING IN THE RESULT. 

I AGREE WITH THE RESULT REACHED BY THE COURT, AND WITH THE OPINION OF
THE COURT EXCEPT AS TO ITS INTERPRETATION OF THE TERM "ORGANIZE" AS
USED IN THE SMITH ACT.  AS TO THAT, I AGREE WITH THE INTERPRETATION
GIVEN IT BY THE COURT OF APPEALS.  225 F.2D 146. 

MR. JUSTICE BRENNAN AND MR. JUSTICE WHITTAKER TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

                                            I. 

I WOULD REVERSE EVERY ONE OF THESE CONVICTIONS AND DIRECT THAT ALL
THE DEFENDANTS BE ACQUITTED.  IN MY JUDGMENT THE STATUTORY PROVISIONS
ON WHICH THESE PROSECUTIONS ARE BASED ABRIDGE FREEDOM OF SPEECH, PRESS
AND ASSEMBLY IN VIOLATION OF THE FIRST AMENDMENT TO THE UNITED STATES
CONSTITUTION.  SEE MY DISSENT AND THAT OF MR. JUSTICE DOUGLAS IN DENNIS
V. UNITED STATES, 341 U.S. 494, 579, 581.  ALSO SEE MY OPINION IN
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 445. 

THE KIND OF TRIALS CONDUCTED HERE ARE WHOLLY DISSIMILAR TO NORMAL
CRIMINAL TRIALS.  ORDINARILY THESE "SMITH ACT" TRIALS ARE PROLONGED
AFFAIRS LASTING FOR MONTHS.  IN PART THIS IS ATTRIBUTABLE TO THE
ROUTINE INTRODUCTION IN EVIDENCE OF MASSIVE COLLECTIONS OF BOOKS,
TRACTS, PAMPHLETS, NEWSPAPERS, AND MANIFESTOES DISCUSSING COMMUNISM,
SOCIALISM, CAPITALISM, FEUDALISM AND GOVERNMENTAL INSTITUTIONS IN
GENERAL, WHICH, IT IS NOT TOO MUCH TO SAY, ARE TURGID, DIFFUSE,
ABSTRUSE, AND JUST PLAIN DULL.  OF COURSE, NO JUROR CAN OR IS EXPECTED
TO PLOW HIS WAY THROUGH THIS JUNGLE OF VERBIAGE.  THE TESTIMONY OF
WITNESSES IS COMPARATIVELY INSIGNIFICANT.  GUILT OR INNOCENCE MAY TURN
ON WHAT MARX OR ENGELS OR SOMEONE ELSE WROTE OR ADVOCATED AS MUCH AS A
HUNDRED OR MORE YEARS AGO.  ELABORATE, REFINED DISTINCTIONS ARE DRAWN
BETWEEN "COMMUNISM," "MARXISM," "LENINISM," "TROTSKYISM," AND
"STALINISM."  WHEN THE PROPRIETY OF OBNOXIOUS OR UNORTHODOX VIEWS ABOUT
GOVERNMENT IS IN REALITY MADE THE CRUCIAL ISSUE, AS IT MUST BE IN CASES
OF THIS KIND, PREJUDICE MAKES CONVICTION INEVITABLE EXCEPT IN THE
RAREST CIRCUMSTANCES. 

                                             II. 

SINCE THE COURT PROCEEDS ON THE ASSUMPTION THAT THE STATUTORY
PROVISIONS INVOLVED ARE VALID, HOWEVER, I FEEL FREE TO EXPRESS MY VIEWS
ABOUT THE ISSUES IT CONSIDERS. 

FIRST.  - I AGREE WITH PART I OF THE COURT'S OPINION THAT DEALS WITH
THE STATUTORY TERM, "ORGANIZE," AND HOLDS THAT THE ORGANIZING CHARGE IN
THE INDICTMENT WAS BARRED BY THE THREE-YEAR STATUTE OF LIMITATIONS. 

SECOND.  - I ALSO AGREE WITH THE COURT INSOFAR AS IT HOLDS THAT THE
TRIAL JUDGE ERRED IN INSTRUCTING THAT PERSONS COULD BE PUNISHED UNDER
THE SMITH ACT FOR TEACHING AND ADVOCATING FORCEFUL OVERTHROW AS AN
ABSTRACT PRINCIPLE.  BUT ON THE OTHER HAND, I CANNOT AGREE THAT THE
INSTRUCTION WHICH THE COURT INDICATES IT MIGHT APPROVE IS
CONSTITUTIONALLY PERMISSIBLE.  THE COURT SAYS THAT PERSONS CAN BE
PUNISHED FOR ADVOCATING ACTION TO OVERTHROW THE GOVERNMENT BY FORCE AND
VIOLENCE, WHERE THOSE TO WHOM THE ADVOCACY IS ADDRESSED ARE URGED "TO
DO SOMETHING, NOW OR IN THE FUTURE, RATHER THAN MERELY TO BELIEVE IN
SOMETHING."  UNDER THE COURT'S APPROACH, DEFENDANTS COULD STILL BE
CONVICTED SIMPLY FOR AGREEING TO TALK AS DISTINGUISHED FROM AGREEING TO
ACT.  I BELIEVE THAT THE FIRST AMENDMENT FORBIDS CONGRESS TO PUNISH
PEOPLE FOR TALKING ABOUT PUBLIC AFFAIRS, WHETHER OR NOT SUCH DISCUSSION
INCITES TO ACTION, LEGAL OR ILLEGAL.  SEE MEIKLEJOHN, FREE SPEECH AND
ITS RELATION TO SELF-GOVERNMENT.  CF. CHAFEE, BOOK REVIEW, 62 HARV. L.
REV. 891.  AS THE VIRGINIA ASSEMBLY SAID IN 1785, IN ITS "STATUTE FOR
RELIGIOUS LIBERTY," WRITTEN BY THOMAS JEFFERSON, "IT IS TIME ENOUGH FOR
THE RIGHTFUL PURPOSES OF CIVIL GOVERNMENT, FOR ITS OFFICERS TO
INTERFERE WHEN PRINCIPLES BREAK OUT INTO OVERT ACTS AGAINST PEACE AND
GOOD ORDER  ... ."*  CF. GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S.
490, 501-502; LABOR BOARD V. VIRGINIA ELECTRIC & P. CO., 314 U.S. 469,
476-480; VIRGINIA ELECTRIC & P. CO. V. LABOR BOARD, 319 U.S. 533, 539. 
*12 HENING'S STAT. (VIRGINIA 1823), C. 34, P. 85. 

THIRD.  - I ALSO AGREE WITH THE COURT THAT PETITIONERS, CONNELLY,
KUSNITZ, RICHMOND, SPECTOR, AND STEINBERG, SHOULD BE ORDERED ACQUITTED
SINCE THERE IS NO EVIDENCE THAT THEY HAVE EVER ENGAGED IN ANYTHING BUT
"WHOLLY LAWFUL ACTIVITIES."  BUT IN CONTRAST TO THE COURT, I THINK THE
SAME ACTION SHOULD ALSO BE TAKEN AS TO THE REMAINING NINE DEFENDANTS. 
THE COURT'S OPINION SUMMARIZES THE STRONGEST EVIDENCE OFFERED AGAINST
THESE DEFENDANTS.  THIS SUMMARY REVEALS A PITIFUL INADEQUACY OF PROOF
TO SHOW BEYOND A REASONABLE DOUBT THAT THE DEFENDANTS WERE GUILTY OF
CONSPIRING TO INCITE PERSONS TO ACT TO OVERTHROW THE GOVERNMENT.  THE
COURT SAYS: 

"IN SHORT, WHILE THE RECORD CONTAINS EVIDENCE OF LITTLE MORE THAN A
GENERAL PROGRAM OF EDUCATIONAL ACTIVITY BY THE COMMUNIST PARTY WHICH
INCLUDED ADVOCACY OF VIOLENCE AS A THEORETICAL MATTER, WE ARE NOT
PREPARED TO SAY, AT THIS STATE OF THE CASE, THAT IT WOULD BE IMPOSSIBLE
FOR A JURY, RESOLVING ALL CONFLICTS IN FAVOR OF THE GOVERNMENT AND
GIVING THE EVIDENCE AS TO THESE SAN FRANCISCO AND LOS ANGELES EPISODES
ITS UTMOST SWEEP, TO FIND THAT ADVOCACY OF ACTION WAS ALSO ENGAGED IN
WHEN THE GROUP INVOLVED WAS THOUGHT PARTICULARLY TRUSTWORTHY,
DEDICATED, AND SUITED FOR VIOLENT TASKS." 

IT SEEMS UNJUST TO COMPEL THESE NINE DEFENDANTS, WHO HAVE JUST BEEN
THROUGH ONE FOUR-MONTH TRIAL, TO GO THROUGH THE ORDEAL OF ANOTHER TRIAL
ON THE BASIS OF SUCH FLIMSY EVIDENCE.  AS THE COURT'S SUMMARY
DEMONSTRATES, THE EVIDENCE INTRODUCED DURING THE TRIAL AGAINST THESE
DEFENDANTS WAS INSUFFICIENT TO SUPPORT THEIR CONVICTION.  UNDER SUCH
CIRCUMSTANCES, IT WAS THE DUTY OF THE TRIAL JUDGE TO DIRECT A VERDICT
OF ACQUITTAL.  IF THE JURY HAD BEEN DISCHARGED SO THAT THE GOVERNMENT
COULD GATHER ADDITIONAL EVIDENCE IN AN ATTEMPT TO CONVICT, SUCH A
DISCHARGE WOULD HAVE BEEN A SOUND BASIS FOR A PLEA OF FORMER JEOPARDY
IN A SECOND TRIAL.  SEE WADE V. HUNTER, 336 U.S. 684, AND CASES CITED
THERE.  I CANNOT AGREE THAT "JUSTICE" REQUIRES THIS COURT TO SEND THESE
CASES BACK TO PUT THESE DEFENDANTS IN JEOPARDY AGAIN IN VIOLATION OF
THE SPIRIT IF NOT THE LETTER OF THE FIFTH AMENDMENT'S PROVISION AGAINST
DOUBLE JEOPARDY. 

FOURTH.  - THE SECTION UNDER WHICH THIS CONSPIRACY INDICTMENT WAS
BROUGHHT, 18 U.S.C. SEC. 371, REQUIRES PROOF OF AN OVERT ACT DONE "TO
EFFECT THE OBJECT OF THE CONSPIRACY."  ORIGINALLY, 11 SUCH OVERT ACTS
WERE CHARGED HERE.  THESE 11 HAVE NOW DWINDLED TO 2, AND AS THE COURT
SAYS: 

"EACH WAS A PUBLIC MEETING HELD UNDER PARTY AUSPICES AT WHICH
SPEECHES WERE MADE BY ONE OR MORE OF THE PETITIONERS EXTOLLING LEADERS
OF THE SOVIET UNION AND CRITICIZING VARIOUS ASPECTS OF THE FOREIGN
POLICY OF THE UNITED STATES.  AT ONE OF THE MEETINGS AN APPEAL FOR
FUNDS WAS MADE.  PETITIONERS CONTEND THAT THESE MEETINGS DO NOT SATISFY
THE REQUIREMENT OF THE STATUTE THAT THERE BE SHOWN AN ACT DONE BY ONE
OF THE CONSPIRATORS 'TO EFFECT THE OBJECT OF THE CONSPIRACY.'  THE
GOVERNMENT CONCEDES THAT NOTHING UNLAWFUL WAS SHOWN TO HAVE BEEN SAID
OR DONE AT THESE MEETINGS, BUT CONTENDS THAT THESE OCCURRENCES
NONETHELESS SUFFICED AS OVERT ACTS UNDER THE JURY'S FINDINGS." 

THE COURT HOLDS THAT ATTENDANCE AT THESE LAWFUL AND ORDERLY MEETINGS
CONSTITUTES AN "OVERT ACT" SUFFICIENT TO MEET THE STATUTORY
REQUIREMENTS.  I DISAGREE. 

THE REQUIREMENT OF PROOF OF AN OVERT ACT IN CONSPIRACY CASES IS NO
MERE FORMALITY, PARTICULARLY IN PROSECUTIONS LIKE THESE WHICH IN MANY
RESPECTS ARE AKIN TO TRIALS FOR TREASON.  ARTICLE III, SEC. 3, OF THE
CONSTITUTION PROVIDES THAT "NO PERSON SHALL BE CONVICTED OF TREASON
UNLESS ON THE TESTIMONY OF TWO WITNESSES TO THE SAME OVERT ACT, OR ON
CONFESSION IN OPEN COURT."  ONE OF THE OBJECTS OF THIS PROVISION WAS TO
KEEP PEOPLE FROM BEING CONVICTED OF DISLOYALTY TO GOVERNMENT DURING
PERIODS OF EXCITEMENT WHEN PASSIONS AND PREJUDICES RAN HIGH, MERELY
BECAUSE THEY EXPRESSED "UNACCEPTABLE" VIEWS.  SEE CRAMER V. UNITED
STATES, 325 U.S. 1, 48.  THE SAME REASONS THAT MAKE PROOF OF OVERT ACTS
SO IMPORTANT IN TREASON CASES APPLY HERE.  THE ONLY OVERT ACT WHICH IS
NOW CHARGED AGAINST THESE DEFENDANTS IS THAT THEY WENT TO A
CONSTITUTIONALLY PROTECTED PUBLIC ASSEMBLY WHERE THEY TOOK PART IN
LAWFUL DISCUSSION OF PUBLIC QUESTIONS, AND WHERE NEITHER THEY NOR
ANYONE ELSE ADVOCATED OR SUGGESTED OVERTHROW OF THE UNITED STATES
GOVERNMENT.  MANY YEARS AGO THIS COURT SAID THAT "THE VERY IDEA OF A
GOVERNMENT, REPUBLICAN IN FORM, IMPLIES A RIGHT ON THE PART OF ITS
CITIZENS TO MEET PEACEABLY FOR CONSULTATION IN RESPECT TO PUBLIC
AFFAIRS AND TO PETITION FOR A REDRESS OF GRIEVANCES."  UNITED STATES V.
CRUIKSHANK, 92 U.S. 542, 552.  AND SEE DE JONGE V. OREGON, 299 U.S.
353, 364-365.  IN MY JUDGMENT DEFENDANTS' ATTENDANCE AT THESE PUBLIC
MEETINGS CANNOT BE VIEWED AS AN OVERT ACT TO EFFECTUATE THE OBJECT OF
THE CONSPIRACY CHARGED. 

                                            III. 

IN ESSENCE, PETITIONERS WERE TRIED UPON THE CHARGE THAT THEY BELIEVE
IN AND WANT TO FOIST UPON THIS COUNTRY A DIFFERENT AND TO US A
DESPICABLE FORM OF AUTHORITARIAN GOVERNMENT IN WHICH VOICES CRITICIZING
THE EXISTING ORDER ARE SUMMARILY SILENCED.  I FEAR THAT THE PRESENT
TYPE OF PROSECUTIONS ARE MORE IN LINE WITH THE PHILOSOPHY OF
AUTHORITARIAN GOVERNMENT THAN WITH THAT EXPRESSED BY OUR FIRST
AMENDMENT. 

DOUBTLESSLY, DICTATORS HAVE TO STAMP OUT CAUSES AND BELIEFS WHICH
THEY DEEM SUBVERSIVE TO THEIR EVIL REGIMES.  BUT GOVERNMENTAL
SUPPRESSION OF CAUSES AND BELIEFS SEEMS TO ME TO BE THE VERY ANTITHESIS
OF WHAT OUR CONSTITUTION STANDS FOR.  THE CHOICE EXPRESSED IN THE FIRST
AMENDMENT IN FAVOR OF FREE EXPRESSION WAS MADE AGAINST A TURBULENT
BACKGROUND BY MEN SUCH AS JEFFERSON, MADISON, AND MASON - MEN WHO
BELIEVED THAT LOYALTY TO THE PROVISIONS OF THIS AMENDMENT WAS THE BEST
WAY TO ASSURE A LONG LIFE FOR THIS NEW NATION AND ITS GOVERNMENT. 
UNLESS THERE IS COMPLETE FREEDOM FOR EXPRESSION OF ALL IDEAS, WHETHER
WE LIKE THEM OR NOT, CONCERNING THE WAY GOVERNMENT SHOULD BE RUN AND
WHO SHALL RUN IT, I DOUBT IF ANY VIEWS IN THE LONG RUN CAN BE SECURED
AGAINST THE CENSOR.  THE FIRST AMENDMENT PROVIDES THE ONLY KIND OF
SECURITY SYSTEM THAT CAN PRESERVE A FREE GOVERNMENT - ONE THAT LEAVES
THE WAY WIDE OPEN FOR PEOPLE TO FAVOR, DISCUSS, ADVOCATE, OR INCITE
CAUSES AND DOCTRINES HOWEVER OBNOXIOUS AND ANTAGONISTIC SUCH VIEWS MAY
BE TO THE REST OF US. 

MR. JUSTICE CLARK, DISSENTING. 

THE PETITIONERS, PRINCIPAL ORGANIZERS AND LEADERS OF THE COMMUNIST
PARTY IN CALIFORNIA, HAVE BEEN CONVICTED FOR A CONSPIRACY COVERING THE
PERIOD 1940 TO 1951.  THEY WERE ENGAGED IN THIS CONSPIRACY WITH THE
DEFENDANTS IN DENNIS V. UNITED STATES, 341 U.S. 494 (1951).  THE DENNIS
DEFENDANTS, NAMED AS CO-CONSPIRATORS BUT NOT INDICTED WITH THE
DEFENDANTS HERE, WERE CONVICTED IN NEW YORK UNDER THE FORMER CONSPIRACY
PROVISIONS OF THE SMITH ACT, 54 STAT. 671, 18 U.S.C.  (1946 ED.)  SEC. 
11.  THEY HAVE SERVED OR ARE NOW SERVING PRISON TERMS AS A RESULT OF
THEIR CONVICTIONS. 

THE CONSPIRACY CHARGED HERE IS THE SAME AS IN DENNIS, EXCEPT THAT
HERE IT IS GEARED TO CALIFORNIA CONDITIONS, AND BROUGHT, FOR THE PERIOD
1948 TO 1951, UNDER THE GENERAL CONSPIRACY STATUTE, 18 U.S.C. SEC. 371,
RATHER THAN THE OLD CONSPIRACY SECTION OF THE SMITH ACT.  THE
INDICTMENT CHARGES PETITIONERS WITH A CONSPIRACY TO VIOLATE TWO
KNOWINGLY AND WILFULLY (1) TEACHING AND ADVOCATING THE VIOLENT
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES, AND (2) ORGANIZING IN
CALIFORNIA THROUGH THE CREATION OF GROUPS, CELLS, SCHOOLS, ASSEMBLIES
OF PERSONS, AND THE LIKE, THE COMMUNIST PARTY, A SOCIETY WHICH TEACHES
OR ADVOCATES VIOLENT OVERTHROW OF THE GOVERNMENT. 

THE CONSPIRACY INCLUDES THE SAME GROUP OF DEFENDANTS AS IN THE DENNIS
CASE THOUGH PETITIONERS HERE OCCUPIED A LOWER ECHELON IN THE PARTY
HIERARCHY.  THEY, NEVERTHELESS, SERVED IN THE SAME ARMY AND WERE
ENGAGED IN THE SAME MISSION.  THE CONVICTIONS HERE WERE BASED UPON
EVIDENCE CLOSELY PARALLELING THAT ADDUCED IN DENNIS AND IN UNITED
STATES V. FLYNN, 216 F.2D 354 (C.A.2D CIR. 1954), BOTH OF WHICH
RESULTED IN CONVICTIONS.  THIS COURT LAID DOWN IN DENNIS THE PRINCIPLES
GOVERNING SUCH PROSECUTIONS AND THEY WERE CLOSELY ADHERED TO HERE,
ALTHOUGH THE NATURE OF THE TWO CASES DID NOT PERMIT IDENTICAL
HANDLING. 

I WOULD AFFIRM THE CONVICTIONS.  HOWEVER, THE COURT HAS FREED FIVE OF
THE CONVICTED PETITIONERS AND ORDERED NEW TRIALS FOR THE REMAINING
NINE.  AS TO THE FIVE, IT SAYS THAT THE EVIDENCE IS "CLEARLY
INSUFFICIENT."  I AGREE WITH THE COURT OF APPEALS, THE DISTRICT COURT,
AND THE JURY THAT THE EVIDENCE SHOWED GUILT BEYOND A REASONABLE DOUBT. 
(FN1)  IT PARALLELED THAT IN DENNIS AND FLYNN AND WAS EQUALLY AS
STRONG.  IN ANY EVENT, THIS COURT SHOULD NOT ACQUIT ANYONE HERE.  IN
ITS LONG HISTORY I FIND NO CASE IN WHICH AN ACQUITTAL HAS BEEN ORDERED
BY THIS COURT SOLELY ON THE FACTS.  IT IS SOMEWHAT LATE TO START IN NOW
USURPING THE FUNCTION OF THE JURY, ESPECIALLY WHERE NEW TRIALS ARE TO
BE HELD COVERING THE SAME CHARGES.  IT MAY BE - ALTHOUGH AFTER TODAY'S
OPINION IT IS SOMEWHAT DOUBTFUL - THAT UNDER THE NEW THEORIES ANNOUNCED
BY THE COURT FOR SMITH ACT PROSECUTIONS SUFFICIENT EVIDENCE MIGHT BE
AVAILABLE ON REMAND.  TO SAY THE LEAST, THE GOVERNMENT SHOULD HAVE AN
OPPORTUNITY TO PRESENT ITS EVIDENCE UNDER THESE CHANGED CONDITIONS. 

I CANNOT AGREE THAT HALF OF THE INDICTMENT AGAINST THE REMAINING NINE
PETITIONERS SHOULD BE QUASHED AS BARRED BY THE STATUTE OF LIMITATIONS. 
I AGREE WITH MY BROTHER BURTON THAT THE COURT HAS INCORRECTLY
INTERPRETED THE TERM "ORGANIZE" AS USED IN THE SMITH ACT.  THE COURT
CONCLUDES THAT THE PLAIN WORDS OF THE ACT, (FN2) "WHOEVER ORGANIZES OR
HELPS OR ATTEMPTS TO ORGANIZE ANY SOCIETY, GROUP, OR ASSEMBLY OF
PERSONS" EMBODIES ONLY THOSE "ACTS ENTERING INTO THE CREATION OF A NEW
ORGANIZATION."  AS APPLIED TO THE COMMUNIST PARTY, THE COURT HOLDS THAT
IT REFERS ONLY TO THE RECONSTITUTION OF THE PARTY IN 1945 AND A PART OF
THE PROSECUTION HERE IS, THEREFORE, BARRED BY THE THREE-YEAR STATUTE OF
LIMITATIONS.  THIS CONSTRUCTION FRUSTRATES THE PURPOSE OF THE CONGRESS
FOR THE ACT WAS PASSED IN 1940 PRIMARILY TO CURB THE GROWING STRENGTH
AND ACTIVITY OF THE PARTY.  (FN3) UNDER SUCH AN INTERPRETATION ALL
PROSECUTION WOULD HAVE BEEN BARRED AT THE VERY TIME OF THE ADOPTION OF
THE ACT FOR THE PARTY WAS FORMED IN 1919.  IF THE CONGRESS HAD BEEN
CONCERNED WITH THE INITIAL ESTABLISHMENT OF THE PARTY IT WOULD NOT HAVE
USED THE WORDS "HELPS OR ATTEMPTS," NOR THE PHRASE "GROUP, OR ASSEMBLY
OF PERSONS."  IT WAS CONCERNED WITH THE NEW COMMUNIST FRONTS, CELLS,
SCHOOLS, AND OTHER GROUPS, AS WELL AS ASSEMBLIES OF PERSONS, WHICH WERE
BEING CREATED NEARLY EVERY DAY UNDER THE AEGIS OF THE PARTY TO CARRY ON
ITS PURPOSES.  THIS IS WHAT THE INDICTMENT HERE CHARGES AND THE PROOF
SHOWS BEYOND DOUBT WAS IN FACT DONE.  THE DECISION TODAY PREVENTS FOR
ALL TIME ANY PROSECUTION OF PARTY MEMBERS UNDER THIS SUBPARAGRAPH OF
THE ACT. 

WHILE THE HOLDING OF THE COURT REQUIRES A REVERSAL OF THE CASE AND A
RETRIAL, THE COURT VERY PROPERLY CONSIDERS THE INSTRUCTIONS GIVEN BY
THE TRIAL JUDGE.  I DO NOT AGREE WITH THE CONCLUSION OF THE COURT
REGARDING THE INSTRUCTIONS, BUT I AM HIGHLY PLEASED TO SEE THAT IT
DISPOSES OF THIS PROBLEM SO THAT ON THE NEW TRIAL INSTRUCTIONS WILL BE
GIVEN THAT WILL AT LEAST MEET THE VIEWS OF THE COURT.  I HAVE STUDIED
THE SECTION OF THE OPINION CONCERNING THE INSTRUCTIONS AND FRANKLY ITS
"ARTILLERY OF WORDS" LEAVES ME CONFUSED AS TO WHY THE MAJORITY
CONCLUDES THAT THE CHARGE AS GIVEN WAS INSUFFICIENT.  I THOUGHT THAT
DENNIS MERELY HELD THAT A CHARGE WAS SUFFICIENT WHERE IT REQUIRES A
FINDING THAT "THE PARTY ADVOCATES THE THEORY THAT THERE IS A DUTY AND
NECESSITY TO OVERTHROW THE GOVERNMENT BY FORCE AND VIOLENCE.  ...  NOT
AS A PROPHETIC INSIGHT OR AS A BIT OF  ...  SPECULATION, BUT AS A
PROGRAM FOR WINNING ADHERENTS AND AS A POLICY TO BE TRANSLATED INTO
ACTION" AS SOON AS THE CIRCUMSTANCES PERMIT.  341 U.S., AT 546-547
(CONCURRING OPINION).  I NOTICE HOWEVER THAT TO THE MAJORITY: 

"THE ESSENCE OF THE DENNIS HOLDING WAS THAT INDOCTRINATION OF A GROUP
IN PREPARATION FOR FUTURE VIOLENT ACTION, AS WELL AS EXHORTATION TO
IMMEDIATE ACTION, BY ADVOCACY FOUND TO BE DIRECTED TO 'ACTION FOR THE
ACCOMPLISHMENT' OF FORCIBLE OVERTHROW, TO VIOLENCE 'AS A RULE OR
PRINCIPLE OF ACTION,' AND EMPLOYING 'LANGUAGE OF INCITEMENT,' ID., AT
511-512, IS NOT CONSTITUTIONALLY PROTECTED WHEN THE GROUP IS OF
SUFFICIENT SIZE AND COHESIVENESS, IS SUFFICIENTLY ORIENTED TOWARDS
ACTION, AND OTHER CIRCUMSTANCES ARE SUCH AS REASONABLY TO JUSTIFY
APPREHENSION THAT ACTION WILL OCCUR." 

I HAVE READ THIS STATEMENT OVER AND OVER BUT DO NOT SEEM TO GRASP ITS
MEANING FOR I SEE NO RESEMBLANCE BETWEEN IT AND WHAT THE RESPECTED
CHIEF JUSTICE WROTE IN DENNIS, NOR DO I FIND ANY SUCH THEORY IN THE
CONCURRING OPINIONS.  AS I SEE IT, THE TRIAL JUDGE CHARGED IN ESSENCE
ALL THAT WAS REQUIRED UNDER THE DENNIS OPINIONS, WHETHER ONE TAKES THE
VIEW OF THE CHIEF JUSTICE OR OF THOSE CONCURRING IN THE JUDGMENT. 
APPARENTLY WHAT DISTURBS THE COURT NOW IS THAT THE TRIAL JUDGE HERE DID
NOT GIVE THE DENNIS CHARGE ALTHOUGH BOTH THE PROSECUTION AND THE
DEFENSE ASKED THAT IT BE GIVEN.  SINCE HE REFUSED TO GRANT THESE
REQUESTS I SUPPOSE THE MAJORITY FEELS THAT THERE MUST BE SOME
DIFFERENCE BETWEEN THE TWO CHARGES, ELSE THE ONE THAT WAS GIVEN IN
DENNIS WOULD HAVE BEEN FOLLOWED HERE.  WHILE THERE MAY BE SOME
DISTINCTIONS BETWEEN THE CHARGES, AS I VIEW THEM THEY ARE WITHOUT
MATERIAL DIFFERENCE.  I FIND, AS THE MAJORITY INTIMATES, THAT THE
DISTINCTIONS ARE TOO "SUBTLE AND DIFFICULT TO GRASP."    HOWEVER, IN
VIEW OF THE FACT THAT THE CASE MUST BE RETRIED, REGARDLESS OF THE
DISPOSITION MADE HERE ON THE CHARGES, I SEE NO REASON TO ENGAGE IN WHAT
BECOMES NOTHING MORE THAN AN EXERCISE IN SEMANTICS WITH THE MAJORITY
ABOUT THIS PHASE OF THE CASE.  CERTAINLY IF I HAD BEEN SITTING AT THE
TRIAL I WOULD HAVE GIVEN THE DENNIS CHARGE, NOT BECAUSE I CONSIDER IT
ANY MORE CORRECT, BUT SIMPLY BECAUSE IT HAD THE STAMP OF APPROVAL OF
THIS COURT.  PERHAPS THIS APPROACH IS TOO PRACTICAL.  BUT I AM SURE THE
TRIAL JUDGE REALIZES NOW THAT PRACTICALITY OFTEN PAYS.    I SHOULD
PERHAPS ADD THAT I AM IN AGREEMENT WITH THE COURT IN ITS HOLDING THAT
PETITIONER SCHNEIDERMAN CAN FIND NO AID FROM THE DOCTRINE OF COLLATERAL
ESTOPPEL. 

FN1  PETITIONERS RICHMOND, CONNELLY, KUSNITZ, STEINBERG, AND SPECTOR
ARE SET FREE. 

RICHMOND AT THE TIME OF HIS INDICTMENT HAD FOR MANY YEARS BEEN THE
EDITOR-IN-CHIEF OF THE DAILY PEOPLE'S WORLD, THE OFFICIAL ORGAN OF THE
PARTY ON THE WEST COAST.  HE HAD JOINED THE PARTY IN 1931 AND RECEIVED
HIS INDOCTRINATION IN COMMUNIST TECHNIQUE AT THE OFFICES OF THE DAILY
WORKER, THE OFFICIAL PARTY PAPER ON THE EAST COAST.  IN 1937 HE WAS
CHOSEN BY THE PARTY'S CENTRAL COMMITTEE TO BE MANAGING EDITOR OF THE
DAILY PEOPLE'S WORLD AND WAS TRANSFERRED TO CALIFORNIA.  FROM 1946
THROUGH 1948 HE REGULARLY ATTENDED SECRET MEETINGS OF THE STATE AND
COUNTY BOARDS OF THE PARTY, ADMISSION TO WHICH WAS BY IDENTIFICATION
FROM A SPECIAL LIST OF PARTY MEMBERS PREPARED BY THE PARTY CHAIRMAN OR
ITS SECURITY CHIEF.  PARTY STRATEGY WAS MAPPED OUT AT "VERY SECRET
MEETINGS" ATTENDED BY RICHMOND AND THE CORE OF THE PARTY MACHINERY,
INCLUDING AT LEAST SEVEN OF THE PETITIONERS HERE.  RICHMOND SERVED ON A
SPECIAL COMMITTEE TO HELP DEVELOP "PRECONVENTION DISCUSSION" WITH
PETITIONER YATES; HE REPRESENTED THE STATE COMMITTEE AT THE 1950
CONVENTION; HE ADDRESSED MANY PARTY MEETINGS PREACHING THE "VANGUARD
ROLE" OF THE PARTY AND THE IMPORTANCE OF THE PEOPLE'S WORLD IN THE
COMMUNIST MOVEMENT; AND HIS ARTICLES IN THE PAPER URGED THE "LENINIST
AND MARXIST APPROACH." 

CONNELLY, A PARTY MEMBER SINCE AT LEAST 1938, WAS THE LOS ANGELES
EDITOR OF THE PEOPLE'S WORLD.  DURING THE MOBILIZATION EFFORT EARLY IN
WORLD WAR II HE DEVOTED HIS EFFORTS TO "BUILDING UP SENTIMENT AGAINST
...  THE WAR EFFORT" AMONG STEEL, AIRCRAFT, AND SHIPYARD WORKERS.  HE
ATTENDED THE SAME SECRET MEETINGS ATTENDED BY RICHMOND. 

THERE CAN BE NO QUESTION THAT THE PROOF SUSTAINED THE CHARGES AGAINST
RICHMOND AND CONNELLY IN THE CONSPIRACY.  THEIR NEWSPAPER WAS THE
CONDUIT THROUGH WHICH THE PARTY ANNOUNCED ITS AIMS, POLICIES, AND
DECISIONS, SOUGHT ITS FUNDS, AND RECRUITED ITS MEMBERS.  IT IS THE
HEIGHT OF NAIVETE TO CLAIM THAT THE PEOPLE'S WORLD DOES NOT PUBLISH
APPEALS TO ITS READERS TO FOLLOW PARTY DOCTRINE IN SEEKING THE
OVERTHROW OF THE GOVERNMENT BY FORCE, BUT IT IS STARK REALITY TO
CONCLUDE THAT SUCH A PUBLICATION PROVIDES AN INCOMPARABLE MEANS OF
PROMOTING THE PARTY'S AIM OF FORCIBLE SEIZURE WHEN THE TIME IS RIPE. 

PETITIONER SPECTOR HAS BEEN ACTIVE IN THE CALIFORNIA PARTY SINCE THE
EARLY 1930'S.  HE TAUGHT "MARXISM-LENINISM" IN PARTY SCHOOLS AND WAS
"DIVISION ORGANIZER" IN LOS ANGELES COUNTY.  HE ATTENDED "UNDERGROUND
MEETINGS" WITH PETITIONERS LAMBERT, DOBBS, HEALY, CARLSON, AND
SCHNEIDERMAN.  THE WITNESS ROSSER TESTIFIED THAT THESE MEETINGS WERE
"SO HID THAT YOU COULDN'T GET TO THEM UNLESS YOU WERE INVITED AND TAKEN
THERE."  IN 1946 HE "CONDUCTED CLASSES" FOR PARTY MEMBERS IN HOLLYWOOD,
AND IN 1947 AS A MEMBER OF A COMMITTEE OF THREE PARTY OFFICIALS
EXAMINED THE WITNESS RUSSELL, A STUDENT IN ONE OF HIS CLASSES, ON
CHARGES OF BEING A PARTY "POLICE SPY." 

PETITIONER KUSNITZ, FOLLOWING AN ORGANIZATIONAL INDOCTRINATION PERIOD
IN NEW YORK CITY, BECAME A PARTY LEADER IN CALIFORNIA IN 1946, SERVED
AS "SECTION ORGANIZER," AND LATER AS "ORGANIZATIONAL SECRETARY" IN LOS
ANGELES.  HER POSITION WAS DIRECTLY BELOW THAT OF THE LOCAL CHAIRMAN IN
PARTY HIERARCHY.  SHE ATTENDED MANY SECRET MEETINGS AND WAS PRESENT AT
A PARTY MEETING WITH PETITIONER YATES WHEN YATES ADVOCATED THE
NECESSITY OF "SOVIET SUPPORT" AND "MARXIST-LENINIST TRAINING" AS A
MEANS OF BRINGING ABOUT THE SOVIET "TYPE OF GOVERNMENT  ...  ALL OVER
THE WORLD."  SHE CONTRIBUTED ARTICLES TO COMMUNIST PUBLICATIONS AND WAS
VERY ACTIVE IN THE "REGROUPING OF  ...  CLUBS INTO SMALLER UNITS";
CONDUCTING A "SIX SESSION LEADERSHIP TRAINING SEMINAR"; CARRYING ON
CAMPAIGNS FOR SUBSCRIPTIONS TO THE PEOPLE'S WORLD; AND LEADING THE
"PARTY BUILDING DRIVE" FOR THE RECRUITMENT OF MEMBERS. 

PETITONER HENRY STEINBERG, ACTIVE IN THE YOUNG COMMUNIST LEAGUE, AND
ASSOCIATED WITH THE PARTY SINCE 1936, WAS THE "EDUCATIONAL DIRECTOR." 
HE TOOK PART IN THE CREATION OF THE PROGRAM FOR THE PARTY'S TRAINING
SCHOOLS IN LOS ANGELES COUNTY.  HIS "EDUCATION DEPARTMENT" SPONSORED
SEVERAL MEETINGS, ONE HONORING THE 25TH ANNIVERSARY OF THE DEATH OF
LENIN.  HE WORKED WITH PETITIONER SCHNEIDERMAN, THE PARTY CHAIRMAN IN
CALIFORNIA, ATTENDED MEETINGS REGULARLY, WAS ACTIVE IN CIRCULATION
DRIVES FOR THE PEOPLE'S WORLD, AND WAS THE PRINCIPAL SPEAKER AT MANY
MEETINGS. 

FN2  18 U.S.C. SEC. 2385. 

FN3  CONGRESSMAN MCCORMACK'S REMARKS ON THE FLOOR OF THE HOUSE OF
REPRESENTATIVES ON JULY 29, 1939, DURING THE DEBATE ON THE SMITH ACT
REFLECT THE UNDERLYING PURPOSE BEHIND THAT ACT.  HE STATED, INTER
ALIA: 

"WE ALL KNOW THAT THE COMMUNIST MOVEMENT HAS AS ITS ULTIMATE
OBJECTIVE THE OVERTHROW OF GOVERNMENT BY FORCE AND VIOLENCE OR BY ANY
MEANS, LEGAL OR ILLEGAL, OR A COMBINATION OF BOTH.  THAT TESTIMONY WAS
INDISPUTABLY PRODUCED BEFORE THE SPECIAL COMMITTEE OF WHICH I WAS
CHAIRMAN, AND CAME FROM THE LIPS NOT OF THOSE WHO GAVE HEARSAY
TESTIMONY, BUT OF THE ACTUAL OFFICIAL RECORDS OF THE COMMUNIST PARTY OF
THE UNITED STATES, PRESENTED TO OUR COMMITTEE BY THE EXECUTIVE
SECRETARY OF THE COMMUNIST PARTY AND THE LEADER OF THE COMMUNIST PARTY
IN THE UNITED STATES, EARL BROWDER  ...  .  THEREFORE, A COMMUNIST IS
ONE WHO INTENDS KNOWINGLY OR WILLFULLY TO PARTICIPATE IN ANY ACTIONS,
LEGAL OR ILLEGAL, OR A COMBINATION OF BOTH, THAT WILL BRING ABOUT THE
ULTIMATE OVERTHROW OF OUR GOVERNMENT.  HE IS THE ONE WE ARE AIMING AT
...  ."  84 CONG. REC. 10454.  SEE ALSO HEARINGS BEFORE SUBCOMMITTEE
NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 5138, 76TH CONG.,
1ST SESS. 84. 
..END :













UNITED STATES V. CALAMARO 354 U.S. 351 


NO. 304.  ARGUED MARCH 4, 1957.  - DECIDED JUNE 17, 1957.  - 236 F.2D
182, AFFIRMED. 


A SO-CALLED "PICK-UP MAN" IN A TYPE OF LOTTERY CALLED THE "NUMBERS
GAME," WHO HAS NO PROPRIETARY INTEREST IN THE ENTERPRISE AND ACTS
MERELY AS A MESSENGER TRANSMITTING RECORDS OF WAGERS FROM THE "WRITER"
(AN AGENT WHO ACCEPTS WAGERS FROM THE BETTORS) TO THE "BANKER" (THE
PRINCIPAL FOR WHOM THE WAGERS ARE ACCEPTED), IS NOT "ENGAGED IN
RECEIVING WAGERS FOR OR ON BEHALF OF ANY PERSON" WITHIN THE MEANING OF
SUBCHAPTER B OF CHAPTER 27A OF THE INTERNAL REVENUE CODE OF 1939, 26
U.S.C. (1952 ED.)  SEC. 3290, AND, THEREFORE IS NOT SUBJECT TO THE
ANNUAL $50 SPECIAL OCCUPATIONAL TAX IMPOSED BY THAT SUBCHAPTER.  PP.
351-360. 

UNITED STATES V. CALAMARO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER THE RESPONDENT, A SO-CALLED "PICK
UP MAN" IN A TYPE OF LOTTERY CALLED THE "NUMBERS GAME," IS SUBJECT TO
THE ANNUAL $50 SPECIAL OCCUPATIONAL TAX ENACTED BY SUBCHAPTER B OF
CHAPTER 27A (WAGERING TAXES) OF THE INTERNAL REVENUE CODE OF 1939, 65
STAT.  530, 26 U.S.C. SEC. 3285 ET SEQ. 

AS WILL BE SEEN FROM THE STATUTE, WHOSE MATERIAL PARTS ARE PRINTED IN
THE MARGIN, (FN1) THIS CHAPTER OF THE 1939 CODE ENACTS TWO KINDS OF
WAGERING TAXES:  (1) AN EXCISE TAX, IMPOSED BY SEC. 3285(D) ON PERSONS
"ENGAGED IN THE BUSINESS OF ACCEPTING WAGERS," AND (2) A SPECIAL
OCCUPATIONAL TAX, IMPOSED BY SEC. 3290 NOT ONLY ON PERSONS WHO ARE
SUBJECT TO THE EXCISE TAX, BEING "ENGAGED IN THE BUSINESS," BUT ALSO ON
THOSE WHO ARE "ENGAGED IN RECEIVING WAGERS" ON BEHALF OF ONE SUBJECT TO
THE EXCISE TAX.  BY DEFINITION THE "NUMBERS GAME" IS AMONG THE WAGERING
TRANSACTIONS INCLUDED IN THE STATUTE. 

AT THE OUTSET WE MUST UNDERSTAND SOME PROFESSIONAL GAMBLING
TERMINOLOGY WHICH HAS BEEN GIVEN US BY THE PARTIES.  A NUMBERS GAME
INVOLVES THREE PRINCIPAL FUNCTIONAL TYPES OF INDIVIDUALS:  (1) THE
"BANKER," WHO DEALS IN THE NUMBERS AND AGAINST WHOM THE PLAYER BETS;
(2) THE "WRITER," WHO, FOR THE BANKER, DOES THE ACTUAL SELLING OF THE
NUMBERS TO THE PUBLIC, AND WHO RECORDS ON TRIPLICATE SLIPS THE NUMBERS
SOLD TO EACH PLAYER AND THE AMOUNT OF HIS WAGER; AND (3) THE "PICK-UP
MAN," WHO COLLECTS WAGERING SLIPS (FN2) FROM THE WRITER AND DELIVERS
THEM TO THE BANKER.  IF THERE ARE WINNINGS TO BE DISTRIBUTED, THE
BANKER DELIVERS THE REQUIRED AMOUNT TO THE WRITER, WHO IN TURN PAYS OFF
THE SUCCESSFUL PLAYERS. 

THE RESPONDENT HERE WAS A PICK-UP MAN FOR A PHILADELPHIA BANKER,
RECEIVING FOR HIS SERVICES A SALARY OF $40 A WEEK, BUT HAVING NO
PROPRIETARY INTEREST IN THIS NUMBERS ENTERPRISE.  HE WAS CONVICTED,
AFTER A JURY TRIAL IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA, OF FAILING TO PAY THE SEC. 3290 OCCUPATIONAL
TAX, AND WAS FINED $1,000.  (FN3)  THE COURT OF APPEALS REVERSED BY A
DIVIDED COURT, 236 F.2D 182, AND UPON THE GOVERNMENT'S PETITION WE
GRANTED CERTIORARI, 352 U.S. 864, TO RESOLVE THE CONFLICT BETWEEN THE
DECISION BELOW AND THAT OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
IN SAGONIAS V. UNITED STATES, 223 F.2D 146, AS TO THE SCOPE OF SEC.
3290.  FOR REASONS GIVEN HEREAFTER WE CONSIDER THAT THE COURT OF
APPEALS IN THIS CASE TOOK THE CORRECT VIEW OF THIS STATUTE. 

THE NUB OF THE COURT OF APPEALS' HOLDING WAS PUT IN THE FOLLOWING
LANGUAGE, WITH WHICH WE AGREE: 

"IN NORMAL USAGE OF FAMILIAR LANGUAGE, 'RECEIVING WAGERS' IS WHAT
SOMEONE ON THE 'BANKING' SIDE OF GAMBLING DOES IN DEALING WITH A
BETTOR.  PLACING AND RECEIVING A WAGER ARE OPPOSITE SIDES OF A SINGLE
COIN.  YOU CAN'T HAVE ONE WITHOUT THE OTHER.  (THE COURT HERE REFERRED
TO THE DEFINITION OF "WAGER" CONTAINED IN SEC. 3285(B)(1)(C); NOTE 1,
SUPRA.)  BEFORE THE PICK-UP MAN ENTERS THE PICTURE, IN SUCH A CASE AS
WE HAVE HERE, THE WAGER HAS BEEN RECEIVED PHYSICALLY BY THE WRITER AND,
IN LEGAL CONTEMPLATION, BY THE WRITER'S PRINCIPAL AS WELL.  THE
GOVERNMENT RECOGNIZES - AND IN AN APPROPRIATE CASE NO DOUBT WOULD
INSIST - THAT WHAT THE WRITER DOES IN RELATION TO THE BETTOR AMOUNTS TO
'RECEIVING A WAGER.'  THUS, THE GOVERNMENT HAS TO ARGUE THAT THE WAGER
IS RECEIVED A SECOND TIME WHEN THE WRITER HANDS THE YELLOW SLIP TO THE
PICK-UP MAN.  BUT WE THINK THIS IGNORES THE VERY REAL DIFFERENCE
BETWEEN A WAGER AND A RECORD OF A WAGERING TRANSACTION.  IT IS THE
BANKING RECORD AND NOT THE WAGER WHICH THE PICK-UP MAN RECEIVES FROM
THE WRITER AND TRANSMITS TO THE BANK.  THE PICK-UP MAN NO MORE RECEIVES
WAGERS THAN A MESSENGER, WHO CARRIES RECORDS OF CUSTOMER TRANSACTIONS
FROM A BRANCH BANK TO A CENTRAL OFFICE, RECEIVES DEPOSITS."  236 F.2D,
AT 184-185. 

WE DO NOT THINK THAT EITHER THE LANGUAGE OR PURPOSE OF THIS STATUTE,
AS REVEALED BY ITS LEGISLATIVE HISTORY, SUPPORTS THE POSITION OF THE
GOVERNMENT.  WHEN THE PHRASE "RECEIVING WAGERS" IS READ IN CONJUNCTION
WITH SEC. 3285(B)(1), WHICH DEFINES "WAGER" IN TERMS OF THE "PLACING"
OF A BET IN CONNECTION WITH ANY OF THE KINDS OF WAGERING TRANSACTIONS
EMBRACED IN THE STATUTE, (FN4) IT SEEMS EVIDENT THAT THE COURT OF
APPEALS WAS QUITE CORRECT IN REGARDING THE "PLACING" AND "RECEIVING" OF
A WAGER AS BEING "OPPOSITE SIDES OF A SINGLE COIN."  (FN5)  IN OTHER
WORDS, WE THINK THAT AS USED IN SEC. 3290 THE TERM "RECEIVING" A WAGER
IS SYNONYMOUS WITH "ACCEPTING" A WAGER; (FN6) THAT IT IS THE MAKING OF
A GAMBLING CONTRACT, NOT THE TRANSPORTATION OF A PIECE OF PAPER, TO
WHICH THE STATUTE REFERS; AND HENCE THAT, IN SUCH A CASE AS THIS, IT IS
THE WRITER AND NOT THE PICK-UP MAN WHO IS "ENGAGED IN RECEIVING WAGERS"
WITHIN THE MEANING OF SEC. 3290. 

WE CONSIDER THE LEGISLATIVE HISTORY OF THE STATUTE, SUCH AS IT IS, TO
BE FULLY CONSISTENT WITH THIS INTERPRETATION OF SEC. 3290.  IN THE
SENATE AND HOUSE REPORTS ON THE BILL, IT IS STATED: 

"  ...  A PERSON IS CONSIDERED TO BE IN THE BUSINESS OF ACCEPTING
WAGERS IF HE IS ENGAGED AS A PRINCIPAL WHO, IN ACCEPTING WAGERS, DOES
SO ON HIS OWN ACCOUNT.  THE PRINCIPALS IN SUCH TRANSACTIONS ARE
COMMONLY REFERRED TO AS 'BOOKMAKERS,' ALTHOUGH IT IS NOT INTENDED THAT
ANY TECHNICAL DEFINITION OF 'BOOKMAKER,' SUCH AS THE MAINTENANCE OF A
HANDBOOK OR OTHER DEVICE FOR THE RECORDING OF WAGERS, BE REQUIRED.  IT
IS INTENDED THAT A WAGER BE CONSIDERED AS 'PLACED' WITH A PRINCIPAL
WHEN IT HAS BEEN PLACED WITH ANOTHER PERSON ACTING FOR HIM.  PERSONS
WHO RECEIVE BETS FOR PRINCIPALS ARE SOMETIMES KNOWN AS 'BOOKMAKERS'
AGENTS' OR AS 'RUNNERS  ...  .' 

     *         *         *  *         * 

"AS IN THE CASE OF BOOKMAKING TRANSACTIONS, A WAGER WILL BE
CONSIDERED AS 'PLACED' IN A POOL OR IN A LOTTERY WHETHER PLACED
DIRECTLY WITH THE PERSON WHO CONDUCTS THE POOL OR LOTTERY OR WITH
ANOTHER PERSON ACTING FOR SUCH A PERSON."  H.R. REP. NO. 586, 82D
CONG., 1ST SESS. 56; S. REP. NO. 781, 82D CONG., 1ST SESS. 114. 

AGAIN, IN THE CASE OF A NUMBERS GAME, THIS INDICATES THAT CONGRESS
REGARDED THE "PLACING" OF A WAGER AS BEING COMPLEMENTED BY ITS
"RECEIPT" BY THE BANKER OR BY ONE ACTING FOR HIM IN THAT TRANSACTION,
THAT IS, THE WRITER AND NOT THE PICK-UP MAN. 

NOR, CONTRARY TO WHAT THE GOVERNMENT CONTENDS, CAN WE SEE ANYTHING IN
THE REGISTRATION PROVISIONS OF SEC. 3291 WHICH POINTS TO THE PICK-UP
MAN AS BEING CONSIDERED A "RECEIVER" OF WAGERS.  THOSE PROVISIONS
SIMPLY PROVIDE THAT ONE LIABLE FOR ANY TAX IMPOSED BY THE STATUTE MUST
REGISTER HIS NAME AND ADDRESS WITH THE COLLECTOR OF THE DISTRICT, AND
REQUIRE IN ADDITION, (A) AS TO THOSE SUBJECT TO THE SEC. 3285 EXCISE
TAX, THE REGISTRATION OF THE NAME AND ADDRESS "OF EACH PERSON WHO IS
ENGAGED IN RECEIVING WAGERS FOR HIM OR ON HIS BEHALF," AND (B) AS TO
THOSE SUBJECT TO THE SEC. 3290 OCCUPATIONAL TAX, THE REGISTRATION OF
THE NAME AND ADDRESS OF EACH PERSON FOR WHOM THEY ARE "ENGAGED IN
RECEIVING WAGERS."  (FN7)  IT IS DOUBTLESS TRUE THAT THESE PROVISIONS,
AS WELL AS THE OCCUPATIONAL TAX ITSELF, (FN8) WERE DESIGNED AT LEAST IN
PART TO FACILITATE COLLECTION OF THE EXCISE TAX.  IT IS LIKEWISE
PLAUSIBLE TO SUPPOSE, AS THE GOVERNMENT SUGGESTS, THAT THE MORE
PARTICIPANTS IN A GAMBLING ENTERPRISE ARE SWEPT WITHIN THESE
PROVISIONS, THE MORE LIKELY IT IS THAT INFORMATION MAKING POSSIBLE THE
COLLECTION OF EXCISE TAXES WILL BE SECURED.  THE FACT REMAINS, HOWEVER,
THAT CONGRESS DID NOT CHOOSE TO SUBJECT ALL EMPLOYEES OF GAMBLING
ENTERPRISES TO THE TAX AND REPORTING REQUIREMENTS, BUT WAS CONTENT TO
IMPOSE THEM ON PERSONS ACTUALLY "ENGAGED IN RECEIVING WAGERS."  NEITHER
WE NOR THE COMMISSIONER MAY REWRITE THE STATUTE SIMPLY BECAUSE WE MAY
FEEL THAT THE SCHEME IT CREATES COULD BE IMPROVED UPON.  (FN9) 

WE CAN GIVE NO WEIGHT TO THE GOVERNMENT'S SUGGESTION THAT HOLDING THE
PICK-UP MAN TO BE NOT SUBJECT TO THIS TAX WILL DEFEAT THE POLICY OF THE
STATUTE BECAUSE ITS ENACTMENT WAS "IN PART MOTIVATED BY A CONGRESSIONAL
DESIRE TO SUPPRESS WAGERING."  (FN10)  THE STATUTE WAS PASSED, AND ITS
CONSTITUTIONALITY WAS UPHELD, AS A REVENUE MEASURE, UNITED STATES V.
KAHRIGER, 345 U.S. 22, AND, APART FROM ALL ELSE, IN CONSTRUING IT WE
WOULD NOT BE JUSTIFIED IN RESORTING TO COLLATERAL MOTIVES OR EFFECTS
WHICH, STANDING APART FROM THE FEDERAL TAXING POWER, MIGHT PLACE THE
CONSTITUTIONALITY OF THE STATUTE IN DOUBT.  SEE ID., AT 31. 

FINALLY, THE GOVERNMENT POINTS TO THE FACT THAT THE TREASURY
REGULATIONS RELATING TO THE STATUTE PURPORT TO INCLUDE THE PICK-UP MAN
AMONG THOSE SUBJECT TO THE SEC. 3290 TAX, (FN11) AND ARGUES (A) THAT
THIS CONSTITUTES AN ADMINISTRATIVE INTERPRETATION TO WHICH WE SHOULD
GIVE WEIGHT IN CONSTRUING THE STATUTE, PARTICULARLY BECAUSE (B) SECTION
3290 WAS CARRIED OVER IN HAEC VERBA INTO SEC. 4411 OF THE INTERNAL
REVENUE CODE OF 1954.  WE FIND NEITHER ARGUMENT PERSUASIVE.  IN LIGHT
OF THE ABOVE DISCUSSION, WE CANNOT BUT REGARD THIS TREASURY REGULATION
AS NO MORE THAN AN ATTEMPTED ADDITION TO THE STATUTE OF SOMETHING WHICH
IS NOT THERE.  (FN12)  AS SUCH THE REGULATION CAN FURNISH NO SUSTENANCE
TO THE STATUTE.  KOSHLAND V. HELVERING, 298 U.S. 441, 446-447.  NOR IS
THE GOVERNMENT HELPED BY ITS ARGUMENT AS TO THE 1954 CODE.  THE
REGULATION HAD BEEN IN EFFECT FOR ONLY THREE YEARS, (FN13) AND THERE IS
NOTHING TO INDICATE THAT IT WAS EVER CALLED TO THE ATTENTION OF
CONGRESS.  THE RE-ENACTMENT OF SEC. 3290 IN THE 1954 CODE WAS NOT
ACCOMPANIED BY ANY CONGRESSIONAL DISCUSSION WHICH THROWS LIGHT ON ITS
INTENDED SCOPE.  IN SUCH CIRCUMSTANCES WE CONSIDER THE 1954 RE
ENACTMENT TO BE WITHOUT SIGNIFICANCE.  COMMISSIONER V. GLENSHAW GLASS
CO., 348 U.S. 426, 431. 

IN CONCLUSION, WE CANNOT ACCEPT THE ALTERNATIVE REASONING OF THE
DISSENTING JUDGE BELOW WHO, RELYING ON THAT PART OF THE OPINION IN
DALEY V. UNITED STATES, 231 F.2D 123, 128, RELATING TO THE TRIAL
COURT'S CHARGE TO THE JURY IN A PROSECUTION FOR FAILING TO PAY THE SEC.
3285 EXCISE TAX, (FN14) REGARDED THE RESPONDENT'S CONVICTION HERE AS
SUSTAINABLE ALSO ON THE THEORY THAT HE WAS A PERSON "ENGAGED IN THE
BUSINESS OF ACCEPTING WAGERS" WITHIN THE MEANING OF SEC. 3285(D).  THE
GOVERNMENT DISCLAIMS THIS GROUND FOR UPHOLDING THE RESPONDENT'S
CONVICTION, AS INDEED IT MUST, IN LIGHT OF THE UNAMBIGUOUS LEGISLATIVE
HISTORY SHOWING THAT THE EXCISE TAX APPLIES ONLY TO ONE WHO IS "ENGAGED
IN THE BUSINESS OF ACCEPTING WAGERS" AS A "PRINCIPAL  ...  ON HIS OWN
ACCOUNT."  (FN15)  IN THIS INSTANCE, THAT MEANS THE BANKER, AS THE
GOVERNMENT CONCEDES. 

WE HOLD, THEREFORE, THAT THE OCCUPATIONAL TAX IMPOSED BY SEC. 3290
DOES NOT APPLY TO THIS RESPONDENT AS A PICK-UP MAN, AND THAT THE
JUDGMENT BELOW MUST ACCORDINGLY BE AFFIRMED. 

FN1  "SUBCHAPTER A - TAX ON WAGERS. 

"SEC. 3285.  TAX. 

"(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. 

"(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  ...  . 

     *         *         *         *         * 

"(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. 

     *    *         *         *         * 

"SUBCHAPTER B - OCCUPATIONAL TAX. 

"SEC. 3290.  TAX. 

"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. 

"SEC. 3291.  REGISTRATION. 

"(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. 

     *         *         *         *      * 

"SEC. 3294.  PENALTIES. 

"(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."  65 STAT. 530, 26
U.S.C. SECS. 3285-3294.    FN2  THE PICK-UP MAN COLLECTS THE "YELLOW"
COPY.  THE TISSUE" COPY IS GIVEN TO THE PLAYER WHEN HE PLACES HIS BET,
AND THE "WHITE" COPY IS RETAINED BY THE WRITER. 

FN3  137 F. SUPP. 816. 

FN4  SEE NOTE 1, SUPRA. 

FN5  THAT THE "PLACING" AND "RECEIVING" OF A WAGER SHOULD BE REGARDED
AS SIMPLY COMPLEMENTING ONE ANOTHER IS RECOGNIZED BY TREASURY
REGULATIONS 132, SEC. 325.24(A) OF WHICH STATES: 

"  ...  ANY WAGER OR CONTRIBUTION RECEIVED BY AN AGENT OR EMPLOYEE ON
BEHALF OF SUCH PERSON (ONE IN THE BUSINESS OF ACCEPTING WAGERS OR
OPERATING A WAGERING POOL OR LOTTERY) SHALL BE CONSIDERED TO HAVE BEEN
ACCEPTED BY AND PLACED WITH SUCH PERSON."  26 CFR, 1957 CUM. POCKET
SUPP., SEC. 325.24(A). 

FN6  INDEED, THE INFORMATION FILED AGAINST THE RESPONDENT, WHICH
CHARGED HIM WITH FAILING TO PAY THE SEC. 3290 OCCUPATIONAL TAX, ALLEGED
THAT HE "DID ACCEPT," NOT THAT HE "DID RECEIVE," WAGERS.  137 F. SUPP.,
AT 817, N. 1. 

FN7  SEE NOTE 1, SUPRA. 

FN8  H.R. REP. NO. 586, 82D CONG., 1ST SESS. 60; S. REP. NO. 781, 82D
CONG., 1ST SESS. 118 (1951). 

FN9  WE DO NOT CONSIDER AS ILLUMINATING, ON THE ISSUE BEFORE US, THE
STATEMENT IN THE HOUSE AND SENATE REPORTS CITED IN NOTE 8, SUPRA, TO
THE EFFECT THAT "ENFORCEMENT OF A TAX ON WAGERS FREQUENTLY WILL
NECESSITATE THE TRACING OF TRANSACTIONS THROUGH COMPLEX BUSINESS
RELATIONSHIPS, THUS REQUIRING THE IDENTIFICATION OF THE VARIOUS STEPS
INVOLVED."  THIS GENERAL STATEMENT, NOT NECESSARILY REFERRING TO THE
NUMBERS GAME OR TO MERE DELIVERY SYSTEMS, AS DISTINGUISHED FROM
ARRANGEMENTS FOR THE "LAY-OFF" OF BETS BY GAMBLING PRINCIPALS, IS NOT
HELPFUL IN INTERPRETING SEC. 3290 IN RELATION TO THE NUMBERS GAME AND
"PICK-UP MEN."  CF. FEDERAL COMMUNICATIONS COMMISSION V. COLUMBIA
BROADCASTING SYSTEM OF CALIF., INC., 311 U.S. 132, 136.  WE THINK THE
SAME IS TRUE OF THE STATEMENTS OF REPRESENTATIVE REED, 97 CONG. REC.
6896, AND OF SENATOR KEFAUVER, 97 CONG. REC. 12231-12232, RELIED ON BY
THE GOVERNMENT.  THE SIGNIFICANCE OF SENATOR KEFAUVER'S STATEMENT IS
FURTHER LIMITED BY THE FACT THAT HE WAS AN OPPONENT OF THE BILL.  SEE
MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270, 288. 

FN10  SEE 97 CONG. REC. 6892, 12236, REFERRED TO IN UNITED STATES V.
KAHRIGER, 345 U.S. 22, 27, N. 3.

FN11  TREAS. REG. 132, SEC. 325.41, EXAMPLE 2 (26 CFR, 1957 CUM.
POCKET SUPP.), WHICH WAS ISSUED ON NOVEMBER 1, 1951 (16 FED. REG.
11211, 11222), PROVIDES AS FOLLOWS: 

"B OPERATES A NUMBERS GAME.  HE HAS AN ARRANGEMENT WITH TEN PERSONS,
WHO ARE EMPLOYED IN VARIOUS CAPACITIES, SUCH AS BOOTBLACKS, ELEVATOR
OPERATORS, NEWS DEALERS, ETC., TO RECEIVE WAGERS FROM THE PUBLIC ON HIS
BEHALF.  B ALSO EMPLOYES A PERSON TO COLLECT FROM HIS AGENTS THE WAGERS
RECEIVED ON HIS BEHALF. 

"B, HIS TEN AGENTS, AND THE EMPLOYEE WHO COLLECTS THE WAGERS RECEIVED
ON HIS BEHALF ARE EACH LIABLE FOR THE SPECIAL TAX." 

FN12  APART FROM THIS, THE FORCE OF THIS TREASURY REGULATION AS AN
AID TO THE INTERPRETATION OF THE STATUTE IS IMPAIRED BY ITS OWN
INTERNAL INCONSISTENCY.  THUS, WHILE EXAMPLE 2 OF THAT REGULATION
PURPORTS TO MAKE THE PICK-UP MAN LIABLE FOR THE SEC. 3290 OCCUPATIONAL
TAX, EXAMPLE 1 OF THE SAME REGULATION PROVIDES THAT "A SECRETARY AND
BOOKKEEPER" OF ONE "ENGAGED IN THE BUSINESS OF ACCEPTING HORSE RACE
BETS" ARE NOT LIABLE FOR THE OCCUPATIONAL TAX "UNLESS THEY ALSO RECEIVE
WAGERS" FOR THE PERSON SO ENGAGED IN BUSINESS, ALTHOUGH THOSE WHO
"RECEIVE WAGERS BY TELEPHONE" ARE SO LIABLE.  THUS IN THIS INSTANCE A
DISTINCTION SEEMS TO BE DRAWN BETWEEN THE "ACCEPTANCE" OF THE WAGER,
AND ITS "RECEIPT" FOR RECORDING PURPOSES.  BUT IF THIS BE PROPER, IT IS
NOT APPARENT WHY THE SAME DISTINCTION IS NOT ALSO VALID BETWEEN A
WRITER, WHO "ACCEPTS" OR "RECEIVES" A BET FROM A NUMBERS PLAYER, AND A
PICK-UP MAN, WHO SIMPLY "RECEIVES" A COPY OF THE SLIPS ON WHICH THE
WRITER HAS RECORDED THE BET, AND PASSES IT ALONG TO THE BANKER. 

FN13  SEE NOTE 11, SUPRA. 

FN14  SEE THE DISSENTING JUDGE'S OPINION BELOW, 236 F.2D 182, 185
186.  THE SUFFICIENCY OF THE INSTRUCTIONS TO THE JURY IN DALEY
APPARENTLY WAS NOT CHALLENGED ON APPEAL.  IN ANY EVENT, THE DALEY CASE
WAS NOT CONCERNED WITH A PICK-UP MAN, NOR WAS THE LEGISLATIVE HISTORY
QUOTED AT P. 356, SUPRA, BROUGHT TO THE COURT'S ATTENTION.  THE COURT
IN THE SAGONIAS CASE, SUPRA, WHICH ACCEPTED THE GOVERNMENT'S CONTENTION
AS TO THE MEANING OF "RECEIVING WAGERS," REJECTED THE CONSTRUCTION OF
THE STATUTE EMBODIED IN THE INSTRUCTIONS TO THE JURY QUOTED IN DALEY. 

FN15  SEE P. 356, SUPRA. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BURTON, DISSENTING. 

FOR THE REASONS STATED IN SAGONIAS V. UNITED STATES, 223 F.2D 146, I
BELIEVE THAT THE RESPONDENT PICKUP MAN WAS "ENGAGED IN RECEIVING WAGERS
FOR AND ON BEHALF" OF THE BANKER WITHIN THE MEANING OF SECS. 3290 AND
3291(A)(3), AND THEREFORE WAS REQUIRED TO PAY THE OCCUPATIONAL TAX AND
TO REGISTER NOT ONLY HIS NAME AND PLACE OF RESIDENCE, BUT THAT OF THE
BANKER. 

THE LANGUAGE OF SEC. 3290 DOES NOT LIMIT THE OCCUPATIONAL TAX TO
PERSONS "ACCEPTING WAGERS" IN A CONTRACTUAL SENSE.  INSTEAD, IT IMPOSES
THE TAX ON "EACH PERSON  ...  WHO IS ENGAGED IN RECEIVING WAGERS FOR OR
ON BEHALF OF ANY PERSON SO LIABLE (FOR THE EXCISE TAX)."  THOSE WORDS
READILY INCLUDE A PICKUP MAN FOR HE IS ENGAGED IN RECEIVING FOR THE
BANKER THE SLIPS WHICH PROVIDE THE BANKER WITH THE SOLE EVIDENCE OF THE
WAGERS MADE. 

THE LEGISLATIVE HISTORY CONTAINS SPECIFIC REFERENCES THAT INDICATE
THAT THE SECTION WAS TO APPLY TO BOOKMAKERS' AGENTS OR RUNNERS.  (FN1)
IT SHOWS THAT THE OCCUPATION TAX WAS ENACTED NOT ONLY AS A REVENUE
MEASURE ON ITS OWN ACCOUNT, BUT AS A MEASURE TO HELP ENFORCE THE MUCH
LARGER EXCISE TAX PLACED BY SEC. 3285 UPON THE PRINCIPAL OPERATOR OF
THE GAMBLING ENTERPRISE.  (FN2)  TO THIS END, SEC. 3291(A)(1) AND (3)
REQUIRES EACH PERSON WHO IS SUBJECT TO THE OCCUPATION TAX TO REGISTER
NOT ONLY HIS OWN NAME AND PLACE OF RESIDENCE, BUT ALSO THAT OF THE
PERSON FOR WHOM HE IS RECEIVING WAGERS.  REGISTRATION OF THE PICKUP MAN
AIDS THE GOVERNMENT IN TRACKING THESE GAMBLING OPERATIONS TO THEIR
HEADQUARTERS AND IS ESSENTIAL TO THE ENFORCEMENT OF THE EXCISE TAX. 
SINCE THE "RECEIVING WAGERS" PHRASE IN THE REGISTRATION PROVISIONS
INCLUDES THE PICKUP MAN, IT MUST HAVE THE SAME MEANING IN THE IDENTICAL
PROVISIONS IMPOSING THE OCCUPATIONAL TAX. 

FURTHERMORE, THE ADMINISTRATIVE INTERPRETATION OF SEC. 3290 IS
SIGNIFICANT.  SINCE THE ENACTMENT OF THE SECTION IN 1951, THERE HAS
BEEN IN EFFECT THE FOLLOWING EXPLANATION OF ITS SCOPE IN TREASURY
REGULATIONS 132: 

"EXAMPLE (2).  B OPERATES A NUMBERS GAME.  HE HAS AN ARRANGEMENT WITH
TEN PERSONS, WHO ARE EMPLOYED IN VARIOUS CAPACITIES, SUCH AS
BOOTBLACKS, ELEVATOR OPERATORS, NEWS DEALERS, ETC., TO RECEIVE WAGERS
FROM THE PUBLIC ON HIS BEHALF.  B ALSO EMPLOYS A PERSON TO COLLECT FROM
HIS AGENTS THE WAGERS RECEIVED ON HIS BEHALF. 

"B, HIS TEN AGENTS, AND THE EMPLOYEE WHO COLLECTS THE WAGERS RECEIVED
ON HIS BEHALF ARE EACH LIABLE FOR THE SPECIAL TAX."  26 CFR, 1957 CUM.
POCKET SUPP., SEC. 325.41. 

THIS REGULATION SHOULD NOT BE DISREGARDED UNLESS SHOWN TO BE PLAINLY
INCONSISTENT WITH THE STATUTE.  COMMISSIONER V. WHEELER, 324 U.S. 542,
547; BREWSTER V. GAGE, 280 U.S. 327, 336.  MOREOVER, CONGRESS RE
ENACTED SEC. 3290 IN 1954 AS 26 U.S.C. (SUPP. II) SEC. 4411.  IT THUS
IMPLIEDLY ACCEPTED THIS ESTABLISHED INTERPRETATION OF THE SCOPE OF THE
HELVERING V. WINMILL, 305 U.S. 79, 83. 

FN1  H.R. REP. NO. 586, 82D CONG., 1ST SESS. 56; S. REP. NO. 781, 82D
CONG., 1ST SESS.  114; 97 CONG. REC. 6896 (REPRESENTATIVE REED); ID.,
AT 12231-12232 (SENATOR KEFAUVER).  IN THIS CONNECTION, IT SHOULD BE
NOTED THAT THE OPINION OF THE COURT BELOW STATES THAT "THE 'NUMBERS
BANKER', EVEN AS BANKERS AND BROKERS IN REPUTABLE COMMERCE, EMPLOYS
SALARIED RUNNERS AND MESSENGERS.  THESE COURIERS ARE CALLED 'PICK-UP
MEN.'"  236 F.2D 182, 184. 

FN2  H.R. REP. NO. 586, 82D CONG., 1ST SESS. 60; S. REP. NO. 781, 82D
CONG., 1ST SESS. 118. 
..END :





SERVICE V. DULLES 354 U.S. 363 


NO. 407.  ARGUED APRIL 2-3, 1957.  - DECIDED JUNE 17, 1957.  - 98 U.S.
APP. D.C. 268, 235 F.2D 215, REVERSED AND REMANDED. 


THIS SUIT WAS BROUGHT BY PETITIONER, A FOREIGN SERVICE OFFICER, TO
TEST THE VALIDITY OF HIS DISCHARGE BY THE SECRETARY OF STATE UNDER
THESE CIRCUMSTANCES:  THE STATE DEPARTMENT'S LOYALTY SECURITY BOARD HAD
REPEATEDLY CLEARED PETITIONER OF CHARGES OF BEING DISLOYAL AND A
SECURITY RISK; AND ITS FINDINGS HAD BEEN APPROVED BY THE DEPUTY UNDER
SECRETARY, WHOSE APPROVAL OF FINDINGS FAVORABLE TO AN EMPLOYEE WERE
FINAL UNDER THE APPLICABLE REGULATIONS.  NO FINDING UNFAVORABLE TO
PETITIONER EVER HAD BEEN MADE BY THE DEPARTMENT'S LOYALTY SECURITY
BOARD OR THE DEPUTY UNDER SECRETARY, AND NO RECOMMENDATION UNFAVORABLE
TO PETITIONER EVER HAD BEEN MADE BY THE DEPUTY UNDER SECRETARY TO THE
SECRETARY.  NEVERTHELESS, THE LOYALTY REVIEW BOARD OF THE CIVIL SERVICE
COMMISSION, ON ITS OWN MOTION, CONDUCTED ITS OWN HEARING, FOUND THAT
THERE WAS REASONABLE DOUBT AS TO PETITIONER'S LOYALTY, AND ADVISED THE
SECRETARY THAT PETITIONER "SHOULD BE FORTHWITH REMOVED FROM THE ROLLS
OF THE DEPARTMENT OF STATE."  ACTING SOLELY ON THE BASIS OF THE FINDING
OF THAT BOARD, AND WITHOUT MAKING ANY INDEPENDENT DETERMINATION OF HIS
OWN ON THE RECORD IN THE CASE, THE SECRETARY DISCHARGED PETITIONER ON
THE SAME DAY.  HE BASED THIS ACTION ON EXECUTIVE ORDERS NO. 9835 AND
NO. 10241 AND SEC. 103 OF PUBLIC LAW 188, 82D CONGRESS, COMMONLY KNOWN
AS THE MCCARRAN RIDER, WHICH AUTHORIZED THE SECRETARY, "IN HIS ABSOLUTE
DISCRETION," TO "TERMINATE THE EMPLOYMENT OF ANY OFFICER ...  OF THE
FOREIGN SERVICE  ...  WHENEVER HE SHALL DEEM SUCH TERMINATION NECESSARY
OR ADVISABLE IN THE INTERESTS OF THE UNITED STATES."  HELD:
PETITIONER'S DISCHARGE WAS INVALID, BECAUSE IT VIOLATED REGULATIONS OF
THE DEPARTMENT OF STATE WHICH WERE BINDING ON THE SECRETARY; AND THE
JUDGMENT IS REVERSED.  PP. 365-389. 

1.  THE REGULATIONS OF THE STATE DEPARTMENT GOVERNING THIS SUBJECT
WERE APPLICABLE TO DISCHARGES UNDER THE MCCARRAN RIDER, AS WELL AS TO
THOSE EFFECTED UNDER THE LOYALTY-SECURITY PROGRAM.  PP. 373-381. 

(A)  THE TERMS OF THE REGULATIONS, THE FACT THAT THE DEPARTMENT
ITSELF PROCEEDED IN THIS VERY CASE UNDER THOSE REGULATIONS DOWN TO THE
POINT OF PETITIONER'S DISCHARGE, REPRESENTATIONS MADE BY THE STATE
DEPARTMENT TO CONGRESS RELATING TO ITS PRACTICES UNDER THE MCCARRAN
RIDER, AND THE ANNOUNCED WISH OF THE PRESIDENT TO THE EFFECT THAT
AUTHORITY UNDER THE MCCARRAN RIDER SHOULD BE EXERCISED SUBJECT TO
PROCEDURAL SAFEGUARDS DESIGNED TO PROTECT "THE PERSONAL LIBERTIES OF
EMPLOYEES," ALL COMBINE TO SUPPORT THIS CONCLUSION.  PP. 373-379. 

(B)  THE SECRETARY WAS NOT POWERLESS TO BIND HIMSELF BY THESE
REGULATIONS AS TO DISCHARGES UNDER THE MCCARRAN RIDER.  PP. 379-380. 

(C)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE
REGULATIONS REFER EXPLICITLY TO DISCHARGES BASED ON LOYALTY AND
SECURITY GROUNDS AND MAKE NO REFERENCE TO DISCHARGES DEEMED "NECESSARY
OR ADVISABLE IN THE INTERESTS OF THE UNITED STATES," WHICH IS THE SOLE
STANDARD OF THE MCCARRAN RIDER.  PP. 380-381. 

2.  THE MANNER IN WHICH PETITIONER WAS DISCHARGED WAS INCONSISTENT
WITH, AND VIOLATIVE OF, REGULATIONS OF THE STATE DEPARTMENT -
REGARDLESS OF WHETHER THE 1949 REGULATIONS OR THE 1951 REGULATIONS BE
CONSIDERED APPLICABLE.  PP. 382-388. 

(A)  UNDER THE 1949 REGULATIONS, THE SECRETARY HAD NO RIGHT TO
DISMISS PETITIONER FOR LOYALTY OR SECURITY REASONS UNLESS AND UNTIL THE
DEPUTY UNDER SECRETARY, ACTING UPON FINDINGS OF THE DEPARTMENT'S
LOYALTY SECURITY BOARD, HAD RECOMMENDED DISMISSAL.  PP. 383-387. 

(B)  UNDER SEC. 393.1 OF THE 1951 REGULATIONS, A DECISION IN SUCH A
CASE COULD BE REACHED ONLY "AFTER CONSIDERATION OF THE COMPLETE FILE,
ARGUMENTS, BRIEFS, AND TESTIMONY PRESENTED," AND THE RECORD SHOWS THAT
THE SECRETARY MADE NO ATTEMPT TO COMPLY WITH THIS REQUIREMENT IN THIS
CASE.  PP. 387-388. 

3.  SINCE THE SECRETARY DID NOT COMPLY WITH THE APPLICABLE
REGULATIONS OF HIS DEPARTMENT, WHICH WERE BINDING ON HIM PETITIONER'S
DISMISSAL CANNOT STAND.  ACCARDI V. SHAUGHNESSY, 347 U.S. 260.  PP. 388
389. 

SERVICE V. DULLES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 14, 1951, PETITIONER, JOHN S. SERVICE, WAS DISCHARGED BY
THE THEN SECRETARY OF STATE, DEAN ACHESON, FROM HIS EMPLOYMENT AS A
FOREIGN SERVICE OFFICER IN THE FOREIGN SERVICE OF THE UNITED STATES. 
THIS CASE BRINGS BEFORE US THE VALIDITY OF THAT DISCHARGE. 

AT THE TIME OF HIS DISCHARGE IN 1951, SERVICE HAD BEEN A FOREIGN
SERVICE OFFICER FOR SOME SIXTEEN YEARS, DURING TEN OF WHICH, 1935-1945,
HE HAD SERVED IN VARIOUS CAPACITIES IN CHINA.  IN APRIL 1945, SHORTLY
AFTER HIS RETURN TO THIS COUNTRY, SERVICE BECAME INVOLVED IN THE SO
CALLED AMERASIA INVESTIGATION THROUGH HAVING FURNISHED TO ONE JAFFE,
THE EDITOR OF THE AMERASIA MAGAZINE, COPIES OF CERTAIN OF HIS FOREIGN
SERVICE REPORTS.  TWO MONTHS LATER, SERVICE, JAFFE AND OTHERS WERE
ARRESTED AND CHARGED WITH VIOLATING THE ESPIONAGE ACT, (FN1) BUT THE
GRAND JURY, IN AUGUST 1945, REFUSED TO INDICT SERVICE.  HE WAS
THEREUPON RESTORED TO ACTIVE DUTY IN THE FOREIGN SERVICE, FROM WHICH HE
HAD BEEN ON LEAVE OF ABSENCE SINCE HIS ARREST, AND RETURNED TO DUTY IN
THE FAR EAST. 

FROM THEN ON SERVICE'S LOYALTY AND STANDING AS A SECURITY RISK WERE
UNDER RECURRENT INVESTIGATION AND REVIEW BY A NUMBER OF GOVERNMENTAL
AGENCIES UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9835, (FN2)
ESTABLISHING THE PRESIDENT'S LOYALTY PROGRAM, AND OTHERWISE.  HE WAS
ACCORDED SUCCESSIVE "CLEARANCES" BY THE STATE DEPARTMENT IN EACH OF THE
YEARS 1945, 1946 AND 1947, (FN3) AND A FOURTH CLEARANCE IN 1949 BY THAT
DEPARTMENT'S LOYALTY SECURITY BOARD, WHICH, HOWEVER, WAS DIRECTED BY
THE LOYALTY REVIEW BOARD OF THE CIVIL SERVICE COMMISSION, WHEN THE CASE
WAS EXAMINED BY IT ON "POST-AUDIT," (FN4) TO PREFER CHARGES AGAINST
SERVICE AND CONDUCT A HEARING THEREON.  THIS WAS DONE, AND ON OCTOBER
6, 1950, AFTER EXTENSIVE HEARINGS, THE DEPARTMENT BOARD CONCLUDED THAT
"REASONABLE GROUNDS DO NOT EXIST FOR BELIEF THAT  ...  SERVICE IS
DISLOYAL TO THE GOVERNMENT OF THE UNITED STATES  ...  ,"  AND THAT "
...  HE DOES NOT CONSTITUTE A SECURITY RISK TO THE DEPARTMENT OF
STATE."  THESE FINDINGS WERE APPROVED BY THE DEPUTY UNDER SECRETARY OF
STATE, ACTING PURSUANT TO AUTHORITY DELEGATED TO HIM BY THE SECRETARY. 
(FN5)  AGAIN, HOWEVER, THE LOYALTY REVIEW BOARD, ON POST-AUDIT,
REMANDED THE CASE TO THE DEPARTMENT BOARD FOR FURTHER CONSIDERATION. 
(FN6)  SUCH CONSIDERATION WAS HAD, THIS TIME UNDER THE MORE STRINGENT
LOYALTY STANDARD ESTABLISHED BY EXECUTIVE ORDER NO. 10241, (FN7)
AMENDING THE EARLIER EXECUTIVE ORDER NO. 9835, AND AGAIN THE DEPARTMENT
BOARD, ON JULY 31, 1951, DECIDED FAVORABLY TO SERVICE.  THIS
DETERMINATION WAS LIKEWISE APPROVED BY THE DEPUTY UNDER SECRETARY. 
HOWEVER, ON A FURTHER POST-AUDIT, THE LOYALTY REVIEW BOARD DECIDED TO
CONDUCT A NEW HEARING ITSELF, WHICH RESULTED THIS TIME IN THE BOARD'S
FINDING THAT THERE WAS A REASONABLE DOUBT AS TO SERVICE'S LOYALTY, AND
IN ITS ADVISING THE SECRETARY OF STATE, ON DECEMBER 13, 1951, THAT IN
THE BOARD'S OPINION SERVICE "SHOULD BE FORTHWITH REMOVED FROM THE ROLLS
OF THE DEPARTMENT OF STATE" AND THAT "THE SECRETARY SHOULD APPROVE AND
ADOPT THE PROCEEDINGS" HAD BEFORE THE BOARD.  (FN8)  ON THE SAME DAY
THE DEPARTMENT NOTIFIED SERVICE OF HIS DISCHARGE, EFFECTIVE AT THE
CLOSE OF BUSINESS ON THE FOLLOWING DAY. 

THE AUTHORITY AND BASIS UPON WHICH THE SECRETARY ACTED IN DISCHARGING
PETITIONER ARE SET FORTH IN AN AFFIDAVIT LATER FILED BY MR. ACHESON IN
THE PRESENT LITIGATION, IN WHICH HE STATES: 

"2.  ON DECEMBER 13, 1951, I RECEIVED A LETTER FROM THE CHAIRMAN OF
THE LOYALTY REVIEW BOARD OF THE CIVIL SERVICE COMMISSION SUBMITTING TO
ME THAT BOARD'S OPINION, DATED DECEMBER 12, 1951, IN THE CASE OF JOHN
S. SERVICE, A FOREIGN SERVICE OFFICER OF THE DEPARTMENT OF STATE AND
THE PLAINTIFF IN THIS ACTION. 

"3.  ON THAT SAME DAY I CONSIDERED WHAT ACTION SHOULD BE TAKEN IN THE
LIGHT OF THE OPINION OF THE LOYALTY REVIEW BOARD, RECOGNIZING THAT
WHATEVER ACTION TAKEN WOULD BE OF UTMOST IMPORTANCE TO THE
ADMINISTRATION OF THE GOVERNMENT EMPLOYEES LOYALTY PROGRAM.  I
UNDERSTOOD THAT THE RESPONSIBILITY WAS VESTED IN ME TO MAKE THE
NECESSARY DETERMINATION UNDER BOTH EXECUTIVE ORDER NO. 9835, AS
AMENDED, AND UNDER SECTION 103 OF PUBLIC LAW 188, 82D CONGRESS, AS TO
WHAT ACTION TO TAKE. 

"4.  ACTING IN THE EXERCISE OF THE AUTHORITY VESTED IN ME AS
SECRETARY OF STATE BY EXECUTIVE ORDER 9835, AS AMENDED BY EXECUTIVE
ORDER 10241, AND ALSO BY SECTION 103 OF PUBLIC LAW 188, 82D CONGRESS
(65 STAT. 575, 581), I MADE A DETERMINATION TO TERMINATE THE SERVICES
OF MR. SERVICE AS A FOREIGN SERVICE OFFICER IN THE FOREIGN SERVICE OF
THE UNITED STATES. 

"5.  I MADE THAT DETERMINATION SOLELY AS THE RESULT OF THE FINDING OF
THE LOYALTY REVIEW BOARD AND AS A RESULT OF MY REVIEW OF THE OPINION OF
THAT BOARD.  IN MAKING THIS DETERMINATION, I DID NOT READ THE TESTIMONY
TAKEN IN THE PROCEEDINGS IN MR. SERVICE'S CASE BEFORE THE LOYALTY
REVIEW BOARD OF THE CIVIL SERVICE COMMISSION.  I DID NOT MAKE ANY
INDEPENDENT DETERMINATION OF MY OWN AS TO WHETHER ON THE EVIDENCE
SUBMITTED BEFORE THOSE BOARDS THERE WAS REASONABLE DOUBT AS TO MR.
SERVICE'S LOYALTY.  I MADE NO INDEPENDENT JUDGMENT ON THE  RECORD IN
THIS CASE.  THERE WAS NOTHING IN THE OPINION OF THE LOYALTY REVIEW
BOARD WHICH WOULD MAKE IT INCOMPATIBLE WITH THE EXERCISE OF MY
RESPONSIBILITIES AS SECRETARY OF STATE TO ACT ON IT.  I DEEMED IT
APPROPRIATE AND ADVISABLE TO ACT ON THE BASIS OF THE FINDING AND
OPINION OF THE LOYALTY REVIEW BOARD.  IN DETERMINING TO TERMINATE THE
EMPLOYMENT OF MR. SERVICE, I DID NOT CONSIDER THAT I WAS LEGALLY BOUND
OR REQUIRED BY THE OPINION OF THE LOYALTY REVIEW BOARD TO TAKE SUCH
ACTION.  ON THE CONTRARY, I CONSIDERED THAT THE OPINION OF THE LOYALTY
REVIEW BOARD WAS MERELY AN ADVISORY RECOMMENDATION TO ME AND THAT I WAS
LEGALLY FREE TO EXERCISE MY OWN JUDGMENT AS TO WHETHER MR. SERVICE'S
EMPLOYMENT SHOULD BE TERMINATED AND I DID SO EXERCISE THAT JUDGMENT. 

SECRETARY THUS RELIED, WAS THE SO-CALLED MCCARRAN RIDER, FIRST ENACTED
AS A RIDER TO THE APPROPRIATION ACT FOR 1947, WHICH PROVIDED: 

"NOTWITHSTANDING THE PROVISIONS OF  ...  ANY OTHER LAW, THE SECRETARY
OF STATE MAY, IN HIS ABSOLUTE DISCRETION,  ...  TERMINATE THE
EMPLOYMENT OF ANY OFFICER OR EMPLOYEE OF THE DEPARTMENT OF STATE OR OF
THE FOREIGN SERVICE OF THE UNITED STATES WHENEVER HE SHALL DEEM SUCH
TERMINATION NECESSARY OR ADVISABLE IN THE INTERESTS OF THE UNITED
STATES  ...  . 

SIMILAR PROVISIONS WERE RE-ENACTED IN EACH SUBSEQUENT APPROPRIATION
ACT UNTIL 1953.  (FN11) 

AFTER AN ATTEMPT TO SECURE FURTHER ADMINISTRATIVE REVIEW OF HIS
DISCHARGE PROVED UNSUCCESSFUL, PETITIONER BROUGHT THIS ACTION, IN WHICH
HE SOUGHT A DECLARATORY JUDGMENT THAT HIS DISCHARGE WAS INVALID; AN
ORDER DIRECTING THE RESPONDENTS TO EXPUNGE FROM THEIR RECORDS ALL
WRITTEN STATEMENTS REFLECTING THAT HIS EMPLOYMENT HAD BEEN TERMINATED
BECAUSE THERE WAS A REASONABLE DOUBT AS TO HIS LOYALTY; AND AN ORDER
DIRECTING THE SECRETARY TO REINSTATE HIM TO HIS EMPLOYMENT AND FORMER
GRADE IN THE FOREIGN SERVICE, WITH FULL RESTORATION OF PROPERTY RIGHTS
AND PAYMENT OF ACCUMULATED SALARY. 

WHILE CROSS-MOTIONS FOR SUMMARY JUDGMENT WERE PENDING BEFORE THE
DISTRICT COURT, THIS COURT RENDERED ITS DECISION IN PETERS V. HOBBY,
349 U.S. 331, HOLDING THAT UNDER EXECUTIVE ORDER NO. 9835, THE LOYALTY
REVIEW BOARD HAD NO AUTHORITY TO REVIEW, ON POST-AUDIT, DETERMINATIONS
FAVORABLE TO EMPLOYEES MADE BY DEPARTMENT OR AGENCY AUTHORITIES, OR TO
ADJUDICATE INDIVIDUAL CASES ON ITS OWN MOTION.  ON THE AUTHORITY OF
THAT DECISION, THE DISTRICT COURT DECLARED THE FINDING AND OPINION OF
THE LOYALTY REVIEW BOARD RESPECTING SERVICE TO BE A NULLITY, AND
DIRECTED THE CIVIL SERVICE COMMISSION TO EXPUNGE FROM ITS RECORDS THE
BOARD'S FINDING THAT THERE WAS REASONABLE DOUBT AS TO HIS LOYALTY.  BUT
SINCE PETITIONER'S REMOVAL RESTED NOT ONLY UPON EXECUTIVE ORDER NO.
9835, AS AMENDED, BUT ALSO UPON THE MCCARRAN RIDER, TH E DISTRICT COURT
SUSTAINED PETITIONER'S DISCHARGE AS A VALID EXERCISE OF THE "ABSOLUTE
DISCRETION" CONFERRED UPON THE SECRETARY BY THE LATTER PROVISION AND
GRANTED SUMMARY JUDGMENT IN FAVOR OF RESPONDENTS IN ALL OTHER
RESPECTS.  (FN12)  THE COURT OF APPEALS AFFIRMED, 98 U.S. APP. D.C.
268, 235 F.2D 215, AND THIS COURT GRANTED CERTIORARI, 352 U.S. 905,
BECAUSE OF THE IMPORTANCE OF THE QUESTIONS INVOLVED TO FEDERAL
ADMINISTRATORS AND EMPLOYEES ALIKE. 

PETITIONER HERE ATTACKS THE VALIDITY OF THE TERMINATION OF HIS
EMPLOYMENT ON TWO SEPARATE GROUNDS:  FIRST, HE CONTENDS THAT THE
SECRETARY'S EXERCISE OF DISCRETION WAS INVALID SINCE THE FINDINGS AND
OPINION OF THE LOYALTY REVIEW BOARD, UPON WHICH ALONE THE SECRETARY
ACTED, WERE VOID, BECAUSE THEY WERE RENDERED WITHOUT JURISDICTION
(FN13) AND WERE BASED UPON PROCEDURES ASSERTEDLY CONTRARY TO DUE
PROCESS OF LAW.  EVEN CONCEDING THAT THE SECRETARY'S POWERS UNDER THE
MCCARRAN RIDER WERE SUCH THAT HE WAS NOT REQUIRED TO STATE THE GROUNDS
FOR HIS DECISION, PETITIONER URGES, HIS DECISION CANNOT STAND BECAUSE
HE DID IN FACT RELY UPON GROUNDS THAT ARE INVALID.  SEE SECURITIES AND
EXCHANGE COMMISSION V. CHENERY CORP., 318 U.S. 80; PERKINS V. ELG, 307
U.S. 325.  SECOND, PETITIONER CONTENDS THAT THE SECRETARY'S ACTION IS
SUBJECT TO ATTACK UNDER THE PRINCIPLES ESTABLISHED BY THIS COURT'S
DECISION IN ACCARDI V. SHAUGHNESSY, 347 U.S. 260, NAMELY, THAT
REGULATIONS VALIDLY PRESCRIBED BY A GOVERNMENT ADMINISTRATOR ARE
BINDING UPON HIM AS WELL AS THE CITIZEN, AND THAT THIS PRINCIPLE HOLDS
EVEN WHEN THE ADMINISTRATIVE ACTION UNDER REVIEW IS DISCRETIONARY IN
NATURE.  REGULATIONS RELATING TO "LOYALTY AND SECURITY OF EMPLOYEES"
WHICH HAD BEEN PROMULGATED BY THE SECRETARY, PETITIONER ASSERTS, WERE
INTENDED TO GOVERN DISCHARGES EFFECTED UNDER THE MCCARRAN RIDER AS WELL
AS THOSE EFFECTED UNDER EXECUTIVE ORDER NO. 9835, AS AMENDED, AND
BECAUSE THOSE REGULATIONS WERE VIOLATED BY THE SECRETARY IN THIS CASE,
SO PETITIONER CLAIMS, HIS DISMISSAL BY THE SECRETARY CANNOT STAND. 
SINCE, FOR REASONS DISCUSSED HEREAFTER, WE HAVE CONCLUDED THAT
PETITIONER'S SECOND CONTENTION MUST BE SUSTAINED, WE DO NOT REACH THE
FIRST. 

THE QUESTIONS TO WHICH WE ADDRESS OURSELVES THEREFORE ARE AS FOLLOWS:
(1) WERE THE DEPARTMENTAL REGULATIONS HERE INVOLVED APPLICABLE TO
DISCHARGES EFFECTED UNDER THE MCCARRAN RIDER?  AND (2) WERE THOSE
REGULATIONS VIOLATED IN THIS INSTANCE?  WE DO NOT UNDERSTAND THE
RESPONDENTS TO DISPUTE THAT THE PRINCIPLE OF ACCARDI V. SHAUGHNESSY,
SUPRA, IS CONTROLLING, IF WE FIND THAT THE REGULATIONS WERE INDEED
APPLICABLE AND WERE VIOLATED.  WE MIGHT ALSO ADD THAT WE ARE NOT HERE
CONCERNED IN ANY WISE WITH THE MERITS OF THE SECRETARY'S ACTION IN
TERMINATING THE PETITIONER'S EMPLOYMENT. 

                 I. 

WE THINK IT IS NOT OPEN TO SERIOUS QUESTION THAT THE DEPARTMENTAL
REGULATIONS UPON WHICH PETITIONER RELIES WERE APPLICABLE TO MCCARRAN
RIDER DISCHARGES AS WELL AS TO THOSE EFFECTED PURSUANT TO THE LOYALTY
SECURITY PROGRAM.  THE TERMS OF THE REGULATIONS, THE FACT THAT THE
DEPARTMENT ITSELF PROCEEDED IN THIS VERY CASE UNDER THOSE REGULATIONS
DOWN TO THE POINT OF PETITIONER'S DISCHARGE, REPRESENTATIONS MADE BY
THE STATE DEPARTMENT TO CONGRESS RELATING TO ITS PRACTICES UNDER THE
MCCARRAN RIDER, AND THE ANNOUNCED WISH OF THE PRESIDENT TO THE EFFECT
THAT MCCARRAN RIDER AUTHORITY SHOULD BE EXERCISED SUBJECT TO PROCEDURAL
SAFEGUARDS DESIGNED TO PROTECT "THE PERSONAL LIBERTIES OF EMPLOYEES,"
ALL COMBINE TO LEAD TO THAT CONCLUSION.  WE ALSO THINK IT CLEAR THAT
THESE REGULATIONS WERE VALID, SO FAR AS THEIR VALIDITY IS PUT IN ISSUE
BY THE RESPONDENTS IN THIS CASE. 

A. THE REGULATIONS. 

WHEN THE DEPARTMENT'S PROCEEDINGS AGAINST THE PETITIONER, WHICH
RESULTED IN THE "CLEARANCES" OF OCTOBER 6, 1950, AND JULY 31, 1951,
WERE BEGUN, THE REGULATIONS IN EFFECT WERE THOSE OF MARCH 11, 1949,
ENTITLED "REGULATIONS AND PROCEDURES RELATING TO LOYALTY AND SECURITY
OF EMPLOYEES, U.S. DEPARTMENT OF STATE."  (FN14)  SECTION 391 STATED
THE "AUTHORITY AND GENERAL POLICY" OF THE REGULATIONS IN THREE
SUBSECTIONS.  SUBSECTION 391.1 STATED THAT IT WAS "HIGHLY IMPORTANT TO
THE INTERESTS OF THE UNITED STATES THAT NO PERSON BE EMPLOYED IN THE
DEPARTMENT WHO IS DISLOYAL OR WHO CONSTITUTES A SECURITY RISK." 
SUBSECTION 391.2 STATED THAT SO FAR AS THE REGULATIONS RELATED TO THE
HANDLING OF LOYALTY CASES, THEY WERE PROMULGATED IN ACCORDANCE WITH THE
EXECUTIVE ORDER NO. 9835, WHICH HAD RECOGNIZED THE "NECESSITY FOR
REMOVING DISLOYAL EMPLOYEES FROM THE FEDERAL SERVICE AND FOR REFUSING
EMPLOYMENT THEREIN TO DISLOYAL PERSONS," AND THE "OBLIGATION TO PROTECT
EMPLOYEES AND APPLICANTS FROM UNFOUNDED ACCUSATIONS OF DISLOYALTY." 
SUBSECTION 391.3 REFERRED TO THE LANGUAGE OF THE MCCARRAN RIDER, NOTING
THAT THE SECRETARY OF STATE HAD BEEN GRANTED BY CONGRESS THE RIGHT, IN
HIS ABSOLUTE DISCRETION, "TO TERMINATE THE EMPLOYMENT OF ANY OFFICER OR
EMPLOYEE OF THE DEPARTMENT OF STATE OR OF THE FOREIGN SERVICE OF THE
UNITED STATES WHENEVER HE SHALL DEEM SUCH TERMINATION NECESSARY OR
ADVISABLE IN THE INTERESTS OF THE UNITED STATES."  "IN THE EXERCISE OF
THIS RIGHT," THE SUBSECTION CONCLUDED, "THE DEPARTMENT WILL, SO FAR AS
POSSIBLE, (FN15) AFFORD ITS EMPLOYEES THE SAME PROTECTION AS THOSE
PROVIDED UNDER THE LOYALTY PROGRAM."  AND, AS WE SHALL SEE HEREAFTER,
THE REGULATIONS MADE NO PROVISION FOR ACTION BY THE SECRETARY HIMSELF,
UNDER THE MCCARRAN RIDER OR OTHER WISE, EXCEPT FOLLOWING UNFAVORABLE
ACTION IN THE EMPLOYEE'S CASE BY THE DEPARTMENT LOYALTY SECURITY BOARD,
AFTER FULL HEARING BEFORE THAT BOARD ON THE CHARGES AGAINST HIM, AND
APPROVAL OF THE BOARD'S ACTION BY THE DEPUTY UNDER SECRETARY.  (FN16) 
IN MAY AND SEPTEMBER 1951, PRIOR TO THE TIME OF PETITIONER'S
DISCHARGE, THE REGULATIONS WERE REVISED, AND THE AMENDED SEC. 391
PROVIDED EVEN MORE EXPLICITLY THAN THE ORIGINAL THAT THE PROCEDURES AND
STANDARDS ESTABLISHED WERE INTENDED TO GOVERN EXERCISE OF THE AUTHROITY
GRANTED BY THE MCCARRAN RIDER.  AFTER STATING IN THE FIRST SUBSECTION
(FN17) THAT THE REGULATIONS WERE ADOPTED TO IMPLEMENT THE DEPARTMENT'S
POLICY THAT "NO PERSON BE EMPLOYED IN THE DEPARTMENT (FN18) WHO IS
DISLOYAL OR WHO CONSTITUTES A SECURITY RISK," THE SECTION CONTINUES IN
THE NEXT TWO SUBSECTIONS (FN19) TO STATE IN EFFECT THAT THE REGULATIONS
RELATING TO THE HANDLING OF LOYALTY CASES WERE PROMULGATED IN
ACCORDANCE WITH EXECUTIVE ORDER NO. 9835, AND THAT THOSE RELATING TO
SECURITY CASES WERE PROMULGATED UNDER THE AUTHORITY OF THE ACT OF
AUGUST 26, 1950 (FN20) AND THE MCCARRAN RIDER.  (FN21)  THE PHRASE "SO
FAR AS POSSIBLE," IN REFERENCE TO MCCARRAN RIDER AUTHORITY, WAS
DELETED.  THE REGULATIONS THUS DREW UPON ALL THE SOURCES OF AUTHORITY
AVAILABLE TO THE SECRETARY WITH REFERENCE TO SUCH CASES AND PURPORTED
TO SET FORTH DEFINITIVELY THE PROCEDURES AND STANDARDS TO BE FOLLOWED
IN THEIR HANDLING. 

B. THE ADMINISTRATIVE PROCEEDINGS IN THIS CASE. 

THE ADMINISTRATIVE PROCEEDINGS HELD IN PETITIONER'S CASE WERE
UNQUESTIONABLY CONDUCTED ON THE PREMISE THAT THE REGULATIONS WERE
APPLICABLE IN THIS INSTANCE.  THE CHARGES WERE BASED ON THE
REGULATIONS, AND A COPY OF THE REGULATIONS WAS SENT TO SERVICE ALONG
WITH THE LETTER OF CHARGES.  THE HEARING WAS SCHEDULED UNDER SEC. 395
OF THE 1949 REGULATIONS.  IN ITS OPINION EXONERATING SERVICE, THE
DEPARTMENT BOARD NOTED, FOLLOWING THE REGULATIONS, THAT "THE ISSUES
HERE ARE (1) LOYALTY, AND (2) SECURITY RISK."  THE BOARD'S FAVORABLE
RECOMMENDATIONS CAME TWICE BEFORE THE DEPUTY UNDER SECRETARY FOR REVIEW
UNDER SECS. 395.6 AND 396.7 OF THESE REGULATIONS, AND WERE APPROVED BY
HIM.  LATER, BEFORE THE CIVIL SERVICE COMMISSION'S LOYALTY REVIEW
BOARD, AN ADDITIONAL CHARGE WAS ADDED TO THE DEPARTMENT'S ORIGINAL
CHARGES BY STIPULATION OF THE PARTIES, AND THE STIPULATION EXPRESSLY
REFERRED TO SECS. 392.2 AND 393.1A OF THE REGULATIONS.  INDEED, AT NO
TIME DURING ANY OF THE ADMINISTRATIVE PROCEEDINGS IN THIS CASE WAS
THERE ANY SUGGESTION THAT THE REGULATIONS WERE NOT APPLICABLE TO THE
ENTIRE PROCEEDINGS AND BINDING UPON ALL PARTIES TO THE CASE. 

C. THE DEPARTMENT'S REPRESENTATIONS TO CONGRESS. 

IN THE SPRING OF 1950, THE DEPARTMENT OF STATE SUBMITTED TO AN
INVESTIGATING SUBCOMMITTEE OF THE SENATE FOREIGN RELATIONS COMMITTEE A
COMPREHENSIVE REPORT ON THE PROCEDURES AND STANDARDS USED BY THE
DEPARTMENT IN DEALING WITH EMPLOYEE LOYALTY AND SECURITY PROBLEMS. 
AFTER DESCRIBING THE PROCEDURES UTILIZED BY THE DEPARTMENT IN THE EARLY
POST-WAR PERIOD, THE REPORT CONTINUED AS FOLLOWS:

" ...  THE POLICY OF THE DEPARTMENT PRIOR TO THE PASSAGE OF THE
MCCARRAN RIDER WAS THAT IF THERE WAS REASONABLE DOUBT AS TO AN
EMPLOYEE'S LOYALTY, HIS EMPLOYMENT WAS REQUIRED TO BE TERMINATED.  THE
MCCARRAN RIDER FREED THE HANDS OF THE DEPARTMENT IN MAKING THIS POLICY
EFFECTIVE.  BASICALLY ANY REASONABLE DOUBT OF AN EMPLOYEE'S LOYALTY IF
BASED ON SUBSTANTIAL EVIDENCE WAS TO BE RESOLVED IN FAVOR OF THE
GOVERNMENT.  AFTER ENACTMENT OF THE MCCARRAN RIDER THE DEPARTMENT DID
NOT CONTEMPLATE THAT THE LEGISLATION REQUIRED OR THAT THE PEOPLE OF
THIS COUNTRY WOULD COUNTENANCE THE USE OF 'GESTAPO' METHODS OR
HARASSMENT OR PERSECUTION OF LOYAL EMPLOYEES WHO WERE AMERICAN CITIZENS
ON FLIMSY EVIDENCE OR HEARSAY AND INNUENDO.  THE DEPARTMENT PROCEEDED
TO DEVELOP APPROPRIATE PROCEDURES DESIGNED TO IMPLEMENT FULLY AND
PROPERLY THE AUTHORITY GRANTED THE DEPARTMENT UNDER THE MCCARRAN
RIDER. 

"THE MCCARRAN RIDER  ...  WAS THE FIRST OF A SERIES OF PROVISIONS
INCLUDED IN EACH SUBSEQUENT APPROPRIATION ACT WHICH AUTHORIZED THE
SECRETARY OF STATE IN HIS ABSOLUTE DISCRETION TO 'TERMINATE THE
EMPLOYMENT OF ANY OFFICER OR EMPLOYEE OF THE DEPARTMENT OF STATE OR OF
THE FOREIGN SERVICE OF THE UNITED STATES WHENEVER HE SHALL DEEM SUCH
TERMINATION NECESSARY OR ADVISABLE IN THE INTERESTS OF THE UNITED
STATES.'  ACCORDINGLY, EFFECTIVE DURING THE 1947 FISCAL YEAR, AND EACH
FISCAL YEAR THEREAFTER, THE DEPARTMENT CONSIDERED THE MCCARRAN RIDER AS
AN ADDITIONAL STANDARD FOR DEALING WITH SECURITY PROBLEMS IN THE
DEPARTMENT  ...  .  IN ITS CONSIDERED VIEW THE MCCARRAN RIDER WAS
SUBJECT TO PROCEDURAL LIMITATIONS.  THE MCCARRAN RIDER WAS NOT
INTERPRETED AS PERMITTING RECKLESS DISCHARGE OR THE EXERCISE OF
ARBITRARY WHIMS. 

      *         *         *         *         * 

"THE PRESIDENT'S LOYALTY ORDER OF MARCH 21, 1957, PRESCRIBED A
COMPREHENSIVE SET OF STANDARDS GOVERNING THE EXECUTIVE BRANCH AS A
WHOLE.  IT WAS DEEMED APPLICABLE TO THE DEPARTMENT OF STATE, AS WELL AS
TO OTHER AGENCIES.  THE UNIQUE POWERS CONFERRED ON THE DEPARTMENT AS A
RESULT OF CONTINUOUS REENACTMENT OF THE MCCARRAN RIDER LED THE
DEPARTMENT TO PROMULGATE REGULATIONS WHICH WOULD ENCOMPASS ITS DUTIES
AND POWERS BOTH UNDER THE EXECUTIVE ORDER AND UNDER THE MCCARRAN
RIDER."  (FN22) 

D. THE PRESIDENT'S LETTER. 

THAT THE POLICY OF THE SECRETARY TO SUBJECT HIS PLENARY POWERS UNDER
THE MCCARRAN RIDER TO PROCEDURAL LIMITATIONS WAS DELIBERATELY ADOPTED,
AND RESTED ON DECISIONS TAKEN AT THE HIGHEST LEVEL, IS EVIDENCED BY A
LETTER DATED SEPTEMBER 6, 1950, FROM PRESIDENT TRUMAN TO THE SECRETARY
OF STATE, WHICH WAS MADE A PART OF THE RECORD BELOW.  IN THAT LETTER,
THE PRESIDENT ADVISED THE SECRETARY THAT HE HAD JUST APPROVED H.R.
7786, THE GENERAL APPROPRIATION ACT, 1951, 64 STAT. 595, 768, SEC. 1213
OF WHICH RE-ENACTED THE MCCARRAN RIDER FOR THE CURRENT FISCAL YEAR. 
THE PRESIDENT CONTINUED: 

"I AM SURE YOU WILL AGREE THAT IN EXERCISING THE DISCRETION CONFERRED
UPON YOU BY SECTION 1213, EVERY EFFORT SHOULD BE MADE TO PROTECT THE
NATIONAL SECURITY WITHOUT UNDULY JEOPARDIZING THE PERSONAL LIBERTIES OF
THE EMPLOYEES WITHIN YOUR JURISDICTION.  PROCEDURES DESIGNED TO
ACCOMPLISH THESE TWO OBJECTIVES ARE SET FORTH IN PUBLIC LAW 733, 81ST
CONGRESS, WHICH AUTHORIZES THE SUMMARY SUSPENSION OF CIVILIAN OFFICERS
AND EMPLOYEES OF VARIOUS DEPARTMENTS AND AGENCIES OF THE GOVERNMENT,
INCLUDING THE DEPARTMENT OF STATE. 

"IN ORDER THAT OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF STATE MAY
BE AFFORDED THE SAME PROTECTION AS THAT AFFORDED BY PUBLIC LAW 733, IT
IS MY DESIRE THAT YOU FOLLOW THE PROCEDURES SET FORTH IN THAT LAW IN
CARRYING OUT THE PROVISIONS OF SECTION 1213 OF THE GENERAL
APPROPRIATIONS ACT." 

IN VIEW OF THE TERMS OF THE REGULATIONS, THE COURSE OF PROCEDURE
FOLLOWED BY THE DEPARTMENT, AND THE BACKGROUND MATERIALS WE HAVE NOTED,
WE THINK THAT THERE IS NO ROOM FOR DOUBT THAT THE DEPARTMENTAL
REGULATIONS FOR THE HANDLING OF LOYALTY AND SECURITY CASES WERE BOTH
INTENDED AND CONSIDERED BY THE DEPARTMENT TO APPLY IN THIS INSTANCE. 
WE CANNOT ACCEPT EITHER OF THE RESPONDENTS' PRESENT ARGUMENTS TO THE
CONTRARY.  THE FIRST ARGUMENT, AS PUT BY THE DISTRICT COURT, WHOSE
LANGUAGE WAS ADOPTED BY THE COURT OF APPEALS, (FN23) IS: 

"  ...  IT WAS NOT THE INTENT OF CONGRESS THAT THE SECRETARY OF STATE
BIND HIMSELF TO FOLLOW THE PROVISIONS OF EXECUTIVE ORDER 9835 IN
DISMISSING EMPLOYEES UNDER PUBLIC LAW 188.  THIS POWER OF SUMMARY
DISMISSAL WOULD NOT HAVE BEEN GRANTED THE SECRETARY OF STATE BY THE
CONGRESS IF THE CONGRESS WAS SATISFIED THAT THE INTERESTS OF THIS
COUNTRY WERE ADEQUATELY PROTECTED BY EXECUTIVE ORDER 9835." 

WE GATHER FROM THIS THAT THE LOWER COURTS THOUGHT THAT THE SECRETARY
WAS POWERLESS TO BIND HIMSELF BY THESE REGULATIONS AS TO MCCARRAN RIDER
DISCHARGES BASED ON LOYALTY OR SECURITY GROUNDS.  WE DO NOT THINK THIS
IS SO.  ALTHOUGH CONGRESS WAS ADVISED IN UNMISTAKABLE TERMS THAT THE
SECRETARY HAD SEEN FIT TO LIMIT BY REGULATIONS THE DISCRETION CONFERRED
UPON HIM SEE PP.  377-378, SUPRA, IT CONTINUED TO RE-ENACT THE MCCARRAN
RIDER WITHOUT CHANGE FOR SEVERAL SUCCEEDING YEARS.  (FN24)  CF. LABOR
BOARD V. GULLETT GIN CO., 340 U.S. 361, 366; FLEMING V. MOHAWK CO., 331
U.S. 111, 116.  NOR DO WE SEE ANY INCONSISTENCY BETWEEN THIS STATUTE
AND THE EFFECT OF THE REGULATIONS UPON THE SECRETARY UNDER ACCARDI V.
SHAUGHNESSY, 347 U.S. 260, ALREADY DISCUSSED, PP. 372-373, SUPRA.
ACCARDI, INDEED, INVOLVED STATUTORY AUTHORITY AS BROAD AS THAT INVOLVED
HERE.  (FN25) 

THE RESPONDENTS' SECOND ARGUMENT IS THAT THE REGULATIONS REFER
EXPLICITLY TO DISCHARGES BASED ON LOYALTY AND SECURITY GROUNDS, BUT
MAKE NO REFERENCE TO DISCHARGES DEEMED "NECESSARY OR ADVISABLE IN THE
INTERESTS OF THE UNITED STATES" - THE SOLE MCCARRAN RIDER STANDARD -
AND HENCE WERE NOT APPLICABLE TO SUCH DISCHARGES.  BUT, AS HAS ALREADY
BEEN DEMONSTRATED, BOTH THE REGULATIONS AND THEIR HISTORICAL CONTEXT
SHOW THAT THE REGULATIONS WERE APPLICABLE TO MCCARRAN RIDER DISCHARGES,
AT LEAST TO THE EXTENT THAT THEY WERE BASED ON LOYALTY OR SECURITY
GROUNDS, AND WE DO NOT SEE HOW IT COULD SERIOUSLY BE CONSIDERED, AS THE
RESPONDENTS NOW SEEM TO URGE, THAT SERVICE WAS NOT DISCHARGED ON SUCH
GROUNDS.  THE SECRETARY'S AFFIDAVIT, (FN26) AND ALSO THE DEPARTMENT'S
FORMAL NOTICE TO SERVICE OF HIS DISCHARGE, (FN27) BOTH OF WHICH, AMONG
OTHER THINGS, REFER TO EXECUTIVE ORDER NO. 9835 AS WELL AS TO THE
MCCARRAN RIDER AS AUTHORITY FOR THE SECRETARY'S ACTION, UNMISTAKABLY
SHOW THAT THE DISCHARGE WAS BASED ON SUCH GROUNDS. 

WE NOW TURN TO THE QUESTION WHETHER THE MANNER OF PETITIONER'S
DISCHARGE WAS CONSISTENT WITH THE DEPARTMENT'S REGULATIONS. 

       II. 

PRELIMINARILY, IT MUST BE NOTED THAT THE PARTIES ARE IN DISPUTE AS TO
WHICH OF THE TWO SETS OF REGULATIONS - THOSE OF 1949 OR THOSE OF 1951 -
IS APPLICABLE TO PETITIONER'S CASE, ASSUMING AS WE HAVE HELD, THAT ONE
OR THE OTHER MUST GOVERN.  THE DEPARTMENTAL PROCEEDINGS AGAINST
PETITIONER WERE BEGUN AND WERE CONDUCTED UNDER THE 1949 REGULATIONS. 
HOWEVER, PRIOR TO PETITIONER'S DISCHARGE IN DECEMBER 1951, THE REVISED
REGULATIONS OF MAY AND SEPTEMBER 1951 HAD BECOME EFFECTIVE, AND IT IS
UNDER THOSE REGULATIONS, THE RESPONDENTS SAY, THAT SERVICE'S DISCHARGE
MUST BE JUDGED.  (FN28)  ON THE OTHER HAND, THE PETITIONER CONTENDS
THAT THE 1949 REGULATIONS REMAINED APPLICABLE TO HIS CASE, SINCE HE WAS
NOT ADVISED OF THE EXISTENCE OF THE 1951 REGULATIONS UNTIL AFTER HIS
DISCHARGE HAD BEEN ACCOMPLISHED AND THE PRESENT COURT PROCEEDINGS HAD
BEEN COMMENCED.  (FN29)  HOWEVER, IT IS UNNECESSARY FOR US TO MAKE A
CHOICE BETWEEN THE TWO SETS OF REGULATIONS, FOR WE FIND THE MANNER IN
WHICH PETITIONER WAS DISCHARGED TO HAVE BEEN INCONSISTENT WITH BOTH. 

A. THE 1949 REGULATIONS. 

IN TERMS OF THE 1949 REGULATIONS, THE VICE WE FIND IN PETITIONER'S
DISCHARGE IS THAT THE SECRETARY HAD NO RIGHT TO DISMISS THE PETITIONER
FOR LOYALTY OR SECURITY REASONS UNLESS AND UNTIL THE DEPUTY UNDER
SECRETARY, ACTING UPON THE FINDINGS OF THE DEPARTMENT'S LOYALTY
SECURITY BOARD, HAD RECOMMENDED SUCH DISMISSAL.  IN OTHER WORDS, THE
DEPUTY UNDER SECRETARY IN THIS INSTANCE HAVING APPROVED THE FINDINGS OF
THE LOYALTY SECURITY BOARD FAVORABLE TO PETITIONER, THE SECRETARY,
CONSISTENTLY WITH THESE REGULATIONS, COULD NOT, WITHOUT MORE, DISMISS
THE PETITIONER. 

THE BASIS FOR THIS CONCLUSION WILL APPEAR FROM A CONSIDERATION OF THE
PROCEDURAL SCHEME ESTABLISHED BY THE 1949 REGULATIONS RELATING THE
LOYALTY AND SECURITY CASES.  IN OUTLINE THAT SCHEME INVOLVED THE
FOLLOWING PROCEDURAL STEPS: 

(1)  THE FILING OF CHARGES, UPON NOTICE TO THE EMPLOYEE INVOLVED,
ACCOMPANIED BY ADEQUATE FACTUAL DETAILS AS TO THEIR BASIS, AND A
STATEMENT AS TO THE EMPLOYEE'S WORK AND PAY STATUS PENDING FURTHER
ACTION.  (FN30) 

(2)  A HEARING ON SUCH CHARGES, IF REQUESTED BY THE EMPLOYEE, BEFORE
THE DEPARTMENT'S LOYALTY SECURITY BOARD, WHOSE DETERMINATION, TOGETHER
WITH THE RECORD OF THE HEARINGS, WERE THEN TO BE FORWARDED TO THE
DEPUTY UNDER SECRETARY FOR REVIEW.  (FN31) 

(3)  UPON SUCH REVIEW THE DEPUTY UNDER SECRETARY WAS EMPOWERED (I) TO
RETURN THE CASE TO THE BOARD FOR FURTHER INVESTIGATION OR ACTION; (II)
TO DECIDE IN FAVOR OF THE EMPLOYEE, AND TO SO NOTIFY HIM IN WRITING; OR
(III) TO DECIDE AGAINST THE EMPLOYEE, AND TO NOTIFY HIM OF HIS RIGHT TO
APPEAL TO THE SECRETARY WITHIN 10 DAYS THEREAFTER.  (FN32) 

(4)  IN THE EVENT OF SUCH AN APPEAL, THE SECRETARY WAS EMPOWERED (I)
TO DECIDE FAVORABLY TO THE EMPLOYEE, AND TO SO NOTIFY HIM IN WRITING;
OR (II) TO DECIDE AGAINST THE EMPLOYEE, AND TO NOTIFY HIM OF SUCH
DECISION, AND FURTHER, IN A LOYALTY CASE, OF HIS RIGHT TO APPEAL TO THE
LOYALTY REVIEW BOARD WITHIN 20 DAYS THEREAFTER.  (FN33) 

(5)  IF, UPON SUCH AN APPEAL, THE LOYALTY REVIEW BOARD DECIDED
ADVERSELY TO THE EMPLOYEE AND MADE AN "ADVISORY" RECOMMENDATION TO THE
SECRETARY THAT THE EMPLOYEE SHOULD BE REMOVED FROM EMPLOYMENT UNDER THE
APPLICABLE LOYALTY STANDARDS, THE DEPARTMENT WAS TO TAKE PROMPT
ADMINISTRATIVE ACTION TO THAT END.  ON THE OTHER HAND IF THE BOARD
DECIDED FAVORABLY TO THE EMPLOYEE THE SECRETARY WAS EMPOWERED (I) TO
RESTORE THE EMPLOYEE TO DUTY AND "CLOSE THE CASE"; (II) TO PERMIT THE
EMPLOYEE TO RESIGN; OR (III) TO TERMINATE HIS EMPLOYMENT UNDER THE
AUTHORITY CONFERRED BY THE MCCARRAN RIDER "OR OTHER APPROPRIATE
AUTHORITY."  (FN34)    FROM THIS SURVEY, THREE THINGS APPEAR AS TO THE
HANDLING OF LOYALTY AND SECURITY CASES UNDER THE 1949 REGULATIONS WHICH
ARE OF SIGNIFICANCE IN THIS CASE.  FIRST, FOLLOWING THE DECISION OF THE
DEPUTY UNDER SECRETARY UPON A DETERMINATION OF THE DEPARTMENT LOYALTY
SECURITY BOARD, THERE WAS TO BE AN APPEAL TO THE SECRETARY ONLY IF THE
DEPUTY'S ACTION HAD BEEN ADVERSE TO THE EMPLOYEE.  IN OTHER WORDS,
UNDER THESE REGULATIONS THE ACTION OF THE DEPUTY UNDER SECRETARY, IF
FAVORABLE TO THE EMPLOYEE, WAS TO BE FINAL, THE SECRETARY RESERVING TO
HIMSELF POWER TO ACT FURTHER ONLY IF HIS DEPUTY'S ACTION WAS
UNFAVORABLE TO THE EMPLOYEE.  (FN35)  SECOND, THERE WAS LIKEWISE AN
APPEAL TO THE LOYALTY REVIEW BOARD FROM THE SECRETARY'S DECISION ONLY
IF HIS ACTION WAS ADVERSE TO THE EMPLOYEE.  AGAIN, IN OTHER WORDS, A
DECISION OF THE SECRETARY FAVORABLE TO THE EMPLOYEE WAS TO BE FINAL,
AND IMMUNE FROM FURTHER ACTION BY THE LOYALTY REVIEW BOARD ON POST
AUDIT, A RULE SINCE CONFIRMED BY OUR DECISION IN PETERS V. HOBBY,
SUPRA.  THIRD, THE SECRETARY RESERVED THE RIGHT TO DEAL WITH SUCH A
CASE UNDER HIS MCCARRAN RIDER AUTHORITY, OUTSIDE THE REGULATIONS, ONLY
IN INSTANCES WHERE, UPON AN EMPLOYEE'S APPEAL TO THE LOYALTY REVIEW
BOARD FROM AN UNFAVORABLE DECISION BY THE SECRETARY, THE DECISION OF
THAT BODY WAS FAVORABLE TO THE EMPLOYEE. 

GRANTED, AS THE RESPONDENTS ARGUE, THAT THESE REGULATIONS GAVE THE
PETITIONER (A) NO RIGHT OF APPEAL TO THE SECRETARY FROM THE DEPUTY
UNDER SECRETARY'S FAVORABLE DECISION, AND (B) NO RIGHT OF APPEAL AT ALL
FROM THE ACTION OF THE LOYALTY REVIEW BOARD, IT DOES NOT FOLLOW, AS THE
RESPONDENTS THEN ARGUE, THAT THE SECRETARY WAS FREE TO DISMISS THE
PETITIONER.  FOR, AS HAS ALREADY BEEN OBSERVED, THE REGULATIONS LEFT
THE SECRETARY FUNCTUS OFFICIO WITH RESPECT TO SUCH CASES ONCE THE
DEPUTY UNDER SECRETARY HAD MADE A DETERMINATION FAVORABLE TO THE
EMPLOYEE.  SO HERE WHEN THE DEPUTY UNDER SECRETARY APPROVED THE LOYALTY
SECURITY BOARD'S ACTION OF JULY 31, 1951, CLEARING THE PETITIONER,
UNDER THESE REGULATIONS THE CASE AGAINST SERVICE WAS CLOSED.  (FN36)
HENCE SERVICE'S SUBSEQUENT DISCHARGE BY THE SECRETARY MUST BE DEEMED TO
HAVE BEEN IN CONTRAVENTION OF THESE 1949 REGULATIONS.  (FN37)  THE
SITUATION UNDER THE 1949 REGULATIONS WAS THUS CLOSELY ANALOGOUS TO THAT
WHICH OBTAINED IN ACCARDI V. SHAUGHNESSY, SUPRA.  THERE, THE ATTORNEY
GENERAL BOUND HIMSELF NOT TO EXERCISE HIS DISCRETION UNTIL HE HAD
RECEIVED AN IMPARTIAL RECOMMENDATION FROM A SUBORDINATE BOARD.  HERE,
THE SECRETARY BOUND HIMSELF NOT TO ACT AT ALL IN CASES SUCH AS THIS,
EXCEPT UPON APPEAL BY EMPLOYEES FROM DETERMINATIONS UNFAVORABLE TO
THEM.  WE SEE NO RELEVANT GROUND FOR DISTINCTION. 

B. THE 1951 REGULATIONS. 

A SIMILAR CONCLUSION MUST BE REACHED IF THE 1951 REGULATIONS ARE
DEEMED APPLICABLE TO PETITIONER'S CASE.  SECTION 393.1 OF THOSE
REGULATIONS PROVIDES: 

"THE STANDARD FOR REMOVAL FROM EMPLOYMENT IN THE DEPARTMENT OF STATE
UNDER THE AUTHORITY REFERRED TO IN SECTION 391.3 SHALL BE THAT ON ALL
THE EVIDENCE REASONABLE GROUNDS EXIST FOR BELIEF THAT THE REMOVAL OF
THE OFFICER OR EMPLOYEE INVOLVED IS NECESSARY OR ADVISABLE IN THE
INTEREST OF NATIONAL SECURITY.  THE DECISION SHALL BE REACHED AFTER
CONSIDERATION OF THE COMPLETE FILE, ARGUMENTS, BRIEFS, AND TESTIMONY
PRESENTED." 

THE "AUTHORITY REFERRED TO IN SECTION 391.3," AS WE HAVE ALREADY
NOTED, INCLUDED THE MCCARRAN RIDER.  (FN38)  IN LIGHT OF THE FORMER
SECRETARY'S AFFIDAVIT (FN39) THERE IS NO RROM FOR DISPUTE THAT NO
ATTEMPT WAS MADE TO COMPLY WITH THIS SECTION OF THE REGULATIONS, (FN40)
AS INDEED THE RESPONDENT'S BRIEF VIRTUALLY CONCEDES. 

THE RESPONDENTS ARGUE THAT THIS PROVISION WAS NOT VIOLATED IN
PETITIONER'S CASE BECAUSE "THE ONLY DECISION TO WHICH SECTION 393.1
RELATES IS THAT THE REMOVAL OF THE OFFICER OR EMPLOYEE INVOLVED IS
'NECESSARY OR ADVISABLE IN THE INTEREST OF NATIONAL SECURITY,'" THE
STANDARD LAID DOWN IN THE ACT OF AUGUST 26, 1950, (FN41) AND THAT
"NOTHING IN THIS SECTION PURPORTS TO DESCRIBE THE PROCEDURE TO BE
FOLLOWED IN DETERMINING THAT REMOVAL IS 'NECESSARY OR ADVISABLE IN THE
INTERESTS OF THE UNITED STATES,'" THE STANDARD CONTAINED IN THE
MCCARRAN RIDER.  BUT SINCE SEC. 391.3, WHICH IS INCORPORATED BY
REFERENCE INTO SEC. 393.1, SPECIFICALLY SUBJECTED THE EXERCISE OF THE
SECRETARY'S MCCARRAN RIDER AUTHORITY, IN SUCH CASES AS THIS, TO THE
OPERATION OF THE 1951 REGULATIONS, IT SEEMS CLEAR THAT THE NECESSARY
EFFECT OF SEC. 393.1 WAS TO SUBJECT THE EXERCISE OF THAT AUTHORITY TO
THE SUBSTANTIVE STANDARDS PRESCRIBED BY THAT SECTION, NAMELY, THOSE
ESTABLISHED BY THE ACT OF AUGUST 26, 1950, (FN42) AND ALSO TO THE
PROCEDURAL REQUIREMENTS THAT SUCH CASES MUST BE DECIDED "ON ALL THE
EVIDENCE" AND "AFTER CONSIDERATION OF THE COMPLETE FILE, ARGUMENTS,
BRIEFS, AND TESTIMONY PRESENTED."  THE ESSENTIAL MEANING OF THE
TO BE ON THE MERITS.  WHILE IT IS OF COURSE TRUE THAT UNDER THE
MCCARRAN RIDER THE SECRETARY WAS NOT OBLIGATED TO IMPOSE UPON HIMSELF
THESE MORE RIGOROUS SUBSTANTIVE AND PROCEDURAL STANDARDS, NEITHER WAS
HE PROHIBITED FROM DOING SO, AS WE HAVE ALREADY HELD, AND HAVING DONE
SO HE COULD NOT, SO LONG AS THE REGULATIONS REMAINED UNCHANGED, PROCEED
WITHOUT REGARD TO THEM. 

IT BEING CLEAR THAT SEC. 393.1 WAS NOT COMPLIED WITH BY THE SECRETARY
IN THIS INSTANCE, IT FOLLOWS THAT UNDER THE ACCARDI DOCTRINE
PETITIONER'S DISMISSAL CANNOT STAND, REGARDLESS OF WHETHER THE 1951,
RATHER THAN THE 1949, REGULATIONS ARE DEEMED APPLICABLE IN HIS CASE. 
(FN43) 

FOR THE FOREGOING REASONS THE JUDGMENT OF THE COURT OF APPEALS MUST
BE REVERSED, AND THE CASE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  ACT OF JUNE 15, 1917, C. 30, 40 STAT. 217, AS AMENDED. 

FN2  12 FED. REG. 1935. 

FN3  HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
APPROPRIATIONS ON THE DEPARTMENT OF STATE APPROPRIATION BILL FOR 1950,
81ST CONG., 1ST SESS. 298. 

FN4  SEE PETERS V. HOBBY, 349 U.S. 331, 339-348, FOR A DISCUSSION OF
THE THEN-EXISTING "POST-AUDIT" PROCEDURE. 

FN5  SEE PP. 382-386 AND NOTE 16, INFRA. 

FN6  THIS ACTION WAS BASED ON "SUPPLEMENTARY INFORMATION  ...
RECEIVED FROM THE FEDERAL BUREAU OF INVESTIGATION," THE NATURE OF WHICH
DOES NOT APPEAR IN THE RECORD. 

FN7  16 FED. REG. 3690. 

FN8  THE ESSENCE OF THE LOYALTY REVIEW BOARD'S ACTION, AND ITS
RELATION TO THE PRIOR DEPARTMENTAL PROCEEDINGS WITH RESPECT TO SERVICE,
ARE SUMMARIZED IN THE STATE DEPARTMENT'S PRESS RELEASE OF DECEMBER 13,
1951, AS FOLLOWS: 

"THE DEPARTMENT OF STATE ANNOUNCED TODAY THAT THE LOYALTY REVIEW
BOARD OF THE CIVIL SERVICE COMMISSION HAS ADVISED THE DEPARTMENT THAT
THIS BOARD HAS FOUND A REASONABLE DOUBT AS TO THE LOYALTY OF JOHN
STEWART SERVICE, FOREIGN SERVICE OFFICER. 

"TODAY'S DECISION OF THE LOYALTY REVIEW BOARD IS BASED ON THE
EVIDENCE WHICH WAS CONSIDERED BY THE DEPARTMENT'S BOARD AND FOUND TO BE
INSUFFICIENT ON WHICH TO BASE A FINDING OF 'REASONABLE DOUBT' AS TO MR.
SERVICE'S LOYALTY OR SECURITY.  COPIES OF THE OPINIONS OF BOTH BOARDS
ARE ATTACHED. 

"THE DEPARTMENT OF STATE'S LOYALTY SECURITY BOARD, ON JULY 31, 1951,
HAD REAFFIRMED ITS EARLIER FINDINGS THAT SERVICE WAS NEITHER DISLOYAL
NOR A SECURITY RISK, AND THE CASE HAD BEEN REFERRED TO THE LOYALTY
REVIEW BOARD FOR POST-AUDIT ON SEPTEMBER 4, 1951.  THE LOYALTY REVIEW
BOARD ASSUMED JURISDICTION OF MR. SERVICE'S CASE ON OCTOBER 9, 1951. 

"THE CHAIRMAN OF THE LOYALTY REVIEW BOARD IN TODAY'S LETTER TO THE
SECRETARY (FULL TEXT ATTACHED) NOTED: 

"'THE LOYALTY REVIEW BOARD FOUND NO EVIDENCE OF MEMBERSHIP IN THE
COMMUNIST PARTY OR IN ANY ORGANIZATION ON THE ATTORNEY GENERAL'S LIST
ON THE PART OF JOHN STEWART SERVICE.  THE LOYALTY REVIEW BOARD DID FIND
THAT THERE IS A REASONABLE DOUBT AS TO THE LOYALTY OF THE EMPLOYEE,
JOHN STEWART SERVICE, TO THE GOVERNMENT OF THE UNITED STATES, BASED ON
THE INTENTIONAL AND UNAUTHORIZED DISCLOSURE OF DOCUMENTS AND
INFORMATION OF A CONFIDENTIAL AND NON-PUBLIC CHARACTER WITHIN THE
MEANING OF SUBPARAGRAPH D OF PARAGRAPH 2 OF PART V, "STANDARDS," OF
EXECUTIVE ORDER NO. 9835, AS AMENDED.' 

"THE OPINION OF THE LOYALTY REVIEW BOARD STRESSED THE POINTS MADE
ABOVE BY THE CHAIRMAN - THAT IS, IT STATED THAT THE BOARD WAS NOT
REQUIRED TO FIND AND DID NOT FIND MR. SERVICE GUILTY OF DISLOYALTY, BUT
IT DID FIND THAT HIS INTENTIONAL AND UNAUTHORIZED DISCLOSURE OF
CONFIDENTIAL DOCUMENTS RAISED REASONABLE DOUBT AS TO HIS LOYALTY.  THE
STATE DEPARTMENT BOARD WHILE CENSORING MR. SERVICE FOR INDISCRETIONS,
BELIEVED THAT THE EXPERIENCE MR. SERVICE HAD BEEN THROUGH AS A RESULT
OF HIS INDISCRETIONS IN 1945 HAD SERVED TO MAKE HIM FAR MORE THAN
NORMALLY SECURITY CONSCIOUS.  IT FOUND ALSO THAT NO REASONABLE DOUBT
EXISTED AS TO HIS LOYALTY TO THE GOVERNMENT OF THE UNITED STATES.  ON
THIS POINT THE STATE DEPARTMENT BOARD WAS REVERSED. 

"THE CHAIRMAN OF THE LOYALTY REVIEW BOARD HAS REQUESTED THE SECRETARY
OF STATE TO ADVISE THE BOARD OF THE EFFECTIVE DATE OF THE SEPARATION OF
MR. SERVICE.  THIS REQUEST STEMS FROM THE PROVISIONS OF EXECUTIVE
ORDERS 9835 AND 10241 - WHICH ESTABLISHED THE PRESIDENT'S LOYALTY
PROGRAM - AND THE REGULATIONS PROMULGATED THEREON.  THESE REGULATIONS
ARE BINDING ON THE DEPARTMENT OF STATE. 

"THE DEPARTMENT HAS ADVISED THE CHAIRMAN OF THE LOYALTY REVIEW BOARD
THAT MR. SERVICE'S EMPLOYMENT HAS BEEN TERMINATED." 

FN9  65 STAT. 581. 

FN10  60 STAT. 458. 

FN11  SEE 61 STAT. 288, 62 STAT. 315, 63 STAT. 456, 64 STAT. 768, 65
STAT. 581, 66 STAT.  555.  ALL OF THESE PROVISIONS ARE REFERRED TO IN
THIS OPINION AS "THE MCCARRAN RIDER." 

FN12  THE DISTRICT COURT'S OPINION IS UNREPORTED.  ACTUALLY, THE
SECRETARY COULD BE CONSIDERED TO HAVE POWER TO DISCHARGE PETITIONER AS
HE DID ONLY BY VIRTUE OF THE MCCARRAN RIDER.  PETITIONER WAS AN OFFICER
IN THE FOREIGN SERVICE OF THE UNITED STATES, AND AS SUCH WAS ENTITLED
TO THE PROTECTION OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED.  22
U.S.C. SEC. 801 ET SEQ. THAT STATUTE AUTHORIZES THE SECRETARY OF STATE
TO SEPARATE OFFICERS FROM THE FOREIGN SERVICE "FOR UNSATISFACTORY
PERFORMANCE OF DUTY," ID., SEC. 1007, OR FOR "MISCONDUCT OR
MALFEASANCE," ID., SEC. 1008.  HOWEVER, UNDER BOTH SECTIONS, AN OFFICER
MAY NOT BE SEPARATED WITHOUT A HEARING BEFORE THE BOARD OF THE FOREIGN
SERVICE ESTABLISHED BY SEC. 211 OF THE ACT, 22 U.S.C. SEC. 826, AND HIS
UNSATISFACTORY PERFORMANCE OF DUTY OR MISCONDUCT MUST BE ESTABLISHED AT
THAT HEARING.  NO SUCH HEARING WAS EVER AFFORDED PETITIONER.  EXECUTIVE
ORDER NO. 9835 DID NOT VEST ANY ADDITIONAL AUTHORITY IN THE HEADS OF
ADMINISTRATIVE AGENCIES TO DISCHARGE EMPLOYEES.  IT MERELY ESTABLISHED
NEW STANDARDS AND PROCEDURES FOR EFFECTING DISCHARGES UNDER WHATEVER
INDEPENDENT LEGAL AUTHORITY EXISTED FOR THOSE DISCHARGES.  CF. COLE V.
YOUNG, 351 U.S. 536, 543-544.  THE ONLY STATUTORY PROVISION WHICH COULD
BE DEEMED TO AUTHORIZE THE SECRETARY TO DISMISS PETITIONER WITHOUT
OBSERVANCE OF THE PROVISIONS OF THE FOREIGN SERVICE ACT WAS THEREFORE
THE MCCARRAN RIDER.  THE LATTER PROVISION THUS WAS AN INDISPENSABLE
SUPPLEMENT TO THE DEPARTMENT'S AUTHORITY IF IT WAS TO PROCEED AGAINST
PETITIONER UNDER THE LOYALTY-SECURITY REGULATIONS AS IT DID.  SEE P.
376, INFRA. 

FN13  SEE PETERS V. HOBBY, SUPRA, 349 U.S., AT 342-343. 

FN14  U.S. DEPARTMENT OF STATE, MANUAL OF REGULATIONS AND PROCEDURES
(1949), SEC. 390 ET SEQ. 

FN15  THIS QUALIFICATION IS WITHOUT SIGNIFICANCE HERE IN VIEW OF THE
FACT THAT THE PETITIONER'S CASE BEFORE THE DEPARTMENT WAS HANDLED, DOWN
TO THE TIME OF HIS DISCHARGE BY THE SECRETARY, UNDER THESE
REGULATIONS.  SEE P. 376, INFRA.  MOREOVER, THIS PHRASE WAS DELETED IN
THE 1951 REVISION OF THE REGULATIONS, AS WE NOTE HEREAFTER, P. 376,
INFRA, AND THE RESPONDENTS HAVE INSISTED HERE THAT THE 1951 REVISION IS
CONTROLLING, SEE P. 382, INFRA. 

FN16  WE FOLLOW THE PARTIES IN THIS CASE IN USING INTERCHANGEABLY THE
TERMS "DEPUTY UNDER SECRETARY" AND "ASSISTANT SECRETARY -
ADMINISTRATION."  WHEN THE DEPARTMENT'S 1949 REGULATIONS WERE
PROMULGATED, THE OFFICIAL CHARGED WITH DUTIES UNDER THEM WAS THE
"ASSISTANT SECRETARY - ADMINISTRATION."  AT SOME TIME THEREAFTER,
HOWEVER, THAT OFFICIAL'S FUNCTIONS WERE APPARENTLY TRANSFERRED TO A
DUPUTY UNDER SECRETARY.  CF. ACT OF MAY 26, 1949, SECS. 3, 4, 63 STAT.
111.  TO AVOID CONFUSION, WE HAVE USED EXCLUSIVELY THE LATTER TITLE IN
THE TEXT OF THIS OPINION, REGARDLESS OF ITS TECHNICAL CORRECTNESS IN
THE PARTICULAR INSTANCE. 

FN17  "391.1 POLICY."  FOR THE DEPARTMENT'S 1951 REGULATIONS SEE U.S.
DEPARTMENT OF STATE, MANUAL OF REGULATIONS AND PROCEDURES (1951), VOL.
I, SEC. 390 ET SEQ. 

FN18  "DEPARTMENT" IS DEFINED AS INCLUDING "THE FOREIGN SERVICE OF
THE UNITED STATES."  SEC.  391.3. 

FN19  "391.2 LOYALTY AUTHORITY," AND "391.3 SECURITY AUTHORITY." 

FN20  THIS STATUTE IS REFERRED TO IN THE SUBSECTION AS "PUBLIC LAW
733, 81ST CONGRESS," BEING THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5
U.S.C. SECS. 22-1, 22-3, WHICH GAVE TO THE STATE DEPARTMENT, AMONG
OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT, SUSPENSION AND
DISMISSAL POWERS OVER THEIR CIVILIAN EMPLOYEES WHEN DEEMED NECESSARY
"IN THE INTEREST OF NATIONAL SECURITY OF THE UNITED STATES."  CF. COLE
V. YOUNG, 351 U.S. 536. 

FN21  REFERRED TO IN THE SUBSECTION AS "GENERAL APPROPRIATIONS ACT,
1951, SECTION 1213, PUBLIC LAW 759, 81ST CONGRESS." 

FN22  S. REP. NO. 2108, 81ST CONG., 2D SESS. 15-16. 

FN23  98 U.S. APP. D.C., AT 271, 235 F.2D, AT 218. 

FN24  SEE NOTE 11, SUPRA. 

FN25  I.E., SEC. 19(C) OF THE IMMIGRATION ACT OF 1917, AS AMENDED:
"IN THE CASE OF ANY ALIEN (OTHER THAN ONE TO WHOM SUBSECTION (D) IS
APPLICABLE) 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."  62 STAT. 1206, 8 U.S.C.
(1946 ED., SUPP. V) SEC. 155(C).    FN26  SEE PP. 368-369, SUPRA. 

FN27  THIS NOTICE READ: 

"MY DEAR MR. SERVICE:    "THE SECRETARY OF STATE WAS ADVISED TODAY BY
THE CHAIRMAN OF THE LOYALTY REVIEW BOARD OF THE U.S. CIVIL SERVICE
COMMISSION THAT THE LOYALTY REVIEW BOARD HAS FOUND THAT THERE IS A
REASONABLE DOUBT AS TO YOUR LOYALTY TO THE GOVERNMENT OF THE UNITED
STATES.  THIS FINDING WAS BASED ON THE INTENTIONAL AND UNAUTHORIZED
DISCLOSURE OF DOCUMENTS AND INFORMATION OF A CONFIDENTIAL AND NON
PUBLIC CHARACTER WITHIN THE MEANING OF SUBPARAGRAPH D OF PARAGRAPH 2 OF
PART V OF EXECUTIVE ORDER 9835, AS AMENDED.  THE LOYALTY REVIEW BOARD
FURTHER ADVISED THAT IT FOUND NO EVIDENCE OF MEMBERSHIP ON YOUR PART IN
THE COMMUNIST PARTY OR IN ANY ORGANIZATIONS ON THE ATTORNEY GENERAL'S
LIST. 

"PURSUANT TO THE FOREGOING, THE SECRETARY OF STATE, UNDER THE
AUTHORITY OF EXECUTIVE ORDER 9835, AS AMENDED, AND SECTION 103 OF
PUBLIC LAW 188, 82ND CONGRESS, HAS DIRECTED ME TO TERMINATE YOUR
EMPLOYMENT IN THE FOREIGN SERVICE OF THE UNITED STATES AS OF THE CLOSE
OF BUSINESS DECEMBER 14, 1951. 

"IN VIEW THEREOF, YOU ARE ADVISED THAT YOUR EMPLOYMENT IN THE FOREIGN
SERVICE OF THE UNITED STATES IS HEREBY TERMINATED EFFECTIVE AT THE
CLOSE OF BUSINESS DECEMBER 14, 1951." 

FN28  THE RESPONDENTS ARGUE THAT THE PROPER RULE TO BE APPLIED IS
THAT OF VANDENBARK V. OWENS-ILLINOIS GLASS CO., 311 U.S. 538, HOLDING
THAT A CHANGE IN THE APPLICABLE LAW AFTER A CASE HAS BEEN DECIDED BY A
NISI PRIUS COURT, BUT BEFORE DECISION ON APPEAL, REQUIRES THE APPELLATE
COURT TO APPLY THE CHANGED LAW.  AND SEE ZIFFRIN, INC. V. UNITED
STATES, 318 U.S. 73. 

FN29  PETITIONER ARGUES THAT THE DECISIONS CITED IN NOTE 28, SUPRA,
ARE NOT IN POINT HERE BECAUSE, INTER ALIA, THE CHANGED REGULATIONS WERE
INVALID AS TO HIM UNDER THE FEDERAL REGISTER ACT, 49 STAT. 502, 44
U.S.C. SEC. 307, AND THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 238, 5
U.S.C. SEC. 1002, BECAUSE NOT PUBLISHED IN THE FEDERAL REGISTER. 

FN30  SECS. 394.13, 394.15, 395.1. 

FN31  SECS. 395.1, 395.53. 

FN32  SECS. 395.6, 396.11. 

FN33  SECS. 396.2, 396.3. 

FN34  SECS. 396.4, 396.5. 

FN35  THAT THIS WAS UNDERSTOOD TO BE THE EFFECT OF THE REGULATIONS IS
INDICATED BY DEPARTMENT OF STATE PRESS RELEASE NO. 247, MARCH 13, 1950,
WHICH IS REPRINTED IN S. REP. NO. 2108, 81ST CONG., 2D SESS. 254. 
DEPUTY UNDER SECRETARY OF STATE JOHN E. PEURIFOY IS THERE QUOTED AS
STATING, IN REPLY TO CHARGES MADE ON THE FLOOR OF THE SENATE:  "  ...
I AM IN FULL CHARGE OF LOYALTY MATTERS AND  ... AM FULLY PREPARED TO
DEAL WITH THESE CHARGES. 

"GEN. GEORGE C. MARSHALL, AS SECRETARY OF STATE, VESTED IN ME FULL
RESPONSIBILITY AND AUTHORITY FOR CARRYING OUT THE LOYALTY AND SECURITY
PROGRAM OF THE DEPARTMENT OF STATE, AND I HAVE CONTINUED TO EXERCISE
THE SAME RESPONSIBILITY AND AUTHORITY UNDER SECRETARY DEAN ACHESON. 

"MY DECISIONS ON MATTERS OF LOYALTY AND SECURITY WITHIN THE
DEPARTMENT ARE FINAL, SUBJECT, HOWEVER, UNDER THE LAW, IN CERTAIN
INSTANCES TO APPEAL TO THE SECRETARY AND THE PRESIDENT'S LOYALTY REVIEW
BOARD.  SINCE THE LOYALTY AND SECURITY PROGRAM WAS LAUNCHED IN THE
DEPARTMENT, HOWEVER, THERE HAS NOT BEEN A SINGLE INSTANCE IN WHICH A
DECISION MADE BY ME HAS BEEN REVERSED OR OVERRULED IN ANY WAY BY
SECRETARY ACHESON." 

FN36  SECTION 396.7 OF THE REGULATIONS PROVIDED: 

"IF THE ASSISTANT SECRETARY - ADMINISTRATION OR THE SECRETARY OF
STATE SHALL, DURING HIS CONSIDERATION OF ANY CASE, DECIDE AFFIRMATIVELY
THAT AN OFFICER OR EMPLOYEE IS NOT DISLOYAL AND DOES NOT CONSTITUTE A
SECURITY RISK AND THAT HIS CASE SHOULD BE CLOSED, SUCH OFFICER OR
EMPLOYEE SHALL BE RESTORED TO DUTY, IF SUSPENDED, AND THE RECORD SHALL
SHOW SUCH DECISION." 

IN HOLDING AS WE DO WE BY NO MEANS IMPLY THAT UNDER THESE REGULATIONS
THE ACTION OF THE DEPUTY UNDER SECRETARY HAD THE EFFECT OF "CLOSING"
PETITIONER'S CASE IRREVOCABLY AND BEYOND HOPE OF RECALL.   NO DOUBT
PROPER STEPS COULD HAVE BEEN TAKEN TO REOPEN IT IN THE DEPARTMENT. 
BUT, CONSISTENT WITH HIS REGULATIONS, WE THINK THAT THE SECRETARY COULD
IN NO EVENT HAVE DISCHARGED THE PETITIONER, AS HE DID HERE, WITHOUT THE
REQUIRED ACTION FIRST HAVING BEEN TAKEN BY THE DEPARTMENT'S LOYALTY
SECURITY BOARD AND THE DEPUTY UNDER SECRETARY. 

FN37  IN VIEW OF THIS CONCLUSION, IT BECOMES UUNNECESSARY TO CONSIDER
THE OTHER RESPECTS IN WHICH PETITIONER CLAIMS THAT HIS DISCHARGE
CONTRAVENED THE 1949 REGULATIONS. 

FN38  SEE PP. 375-376, SUPRA. 

FN39  SEE PP. 368-369, SUPRA. 

FN40  WE DO NOT, OF COURSE, IMPLY THAT THE REGULATIONS PRECLUDED THE
SECRETARY FROM DISCHARGING ANY INDIVIDUAL WITHOUT PERSONALLY READING
THE "COMPLETE FILE" AND CONSIDERING "ALL THE EVIDENCE."  NO DOUBT THE
SECRETARY COULD DELEGATE THAT DUTY.  BUT NOTHING OF THE KIND APPEARS TO
HAVE BEEN DONE HERE. 

FN41  SEE NOTE 20, SUPRA. 

FN42  SECTIONS 393.2 AND 393.3 FURTHER REFINED THE STANDARD BY
DEFINING FIVE CLASSES OF PERSONS CONSTITUTING SECURITY RISKS, AND
LISTING FIVE FACTORS WHICH WERE TO BE TAKEN INTO ACCOUNT, TOGETHER WITH
POSSIBLE MITIGATING CIRCUMSTANCES. 

FN43  BECAUSE OF THIS CONCLUSION IT IS UNNECESSARY TO DEAL WITH THE
OTHER RESPECTS IN WHICH PETITIONER CLAIMS HIS DISCHARGE VIOLATED THE
1951 REGULATIONS. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










WEST POINT WHOLESALE GROCERY CO. V. CITY OF OPELIKA, ALABAMA 354 U.S.
390 


NO. 478.  ARGUED APRIL 24, 1957.  - DECIDED JUNE 17, 1957.  - 38 ALA.
APP. 444, 87 SO. 2D 661, REVERSED AND REMANDED. 


A MUNICIPAL ORDINANCE OF AN ALABAMA CITY IMPOSES A FLAT-SUM ANNUAL
PRIVILEGE TAX ON ALL FIRMS ENGAGED IN THE WHOLESALE GROCERY BUSINESS
WHICH DELIVER GROCERIES AT WHOLESALE IN THE CITY FROM POINTS OUTSIDE
THE CITY BUT DOES NOT IMPOSE THE SAME TAX ON LOCAL WHOLESALE
MERCHANTS.  HELD: AS APPLIED TO A GEORGIA CORPORATION WHICH SOLICITS
ORDERS IN THE ALABAMA CITY, TRANSMITS THEM TO GEORGIA, WHERE THEY ARE
ACCEPTED, AND DELIVERS GROCERIES TO CUSTOMERS IN THE ALABAMA CITY, THE
TAX IS INVALID UNDER THE COMMERCE CLAUSE.  NIPPERT V. CITY OF RICHMOND,
327 U.S. 416; MEMPHIS STEAM LAUNDRY V. STONE, 342 U.S. 389.  PP. 390
392. 

WEST POINT WHOLESALE GROCERY CO. V. CITY OF OPELIKA, ALABAMA. 

APPEAL FROM THE COURT OF APPEALS OF ALABAMA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT TO RECOVER TAXES PAID BY THE APPELLANT TO THE CITY OF
OPELIKA, ALABAMA, ON THE GROUND THAT THE TAXES IN QUESTION IMPOSED A
DISCRIMINATORY BURDEN ON INTERSTATE COMMERCE.  THE STATE COURT
SUSTAINED A DEMURRER TO THE COMPLAINT, 38 ALA. APP. 444, 87 SO. 2D 661,
REJECTING THE APPELLANT'S FEDERAL CONTENTION, AND WE NOTED PROBABLE
JURISDICTION.  352 U.S. 924. 

AMENDED BY ORDINANCE NO. 103-53, PROVIDES THAT AN ANNUAL PRIVILEGE TAX
OF $250 MUST BE PAID BY ANY FIRM ENGAGED IN THE WHOLESALE GROCERY
BUSINESS WHICH DELIVERS, AT WHOLESALE, GROCERIES IN THE CITY FROM
POINTS WITHOUT THE CITY.  (FN1)  APPELLANT IS A GEORGIA CORPORATION
ENGAGED IN THE WHOLESALE GROCERY BUSINESS IN WEST POINT, GEORGIA.  IT
SOLICITS BUSINESS IN THE CITY OF OPELIKA THROUGH SALESMEN; ORDERS ARE
TRANSMITTED TO APPELLANT'S PLACE OF BUSINESS IN GEORGIA, WHERE THEY ARE
ACCEPTED AND THE GROCERIES THEREUPON LOADED ON TRUCKS AND DELIVERED TO
THE CITY.  APPELLANT HAS NO PLACE OF BUSINESS, OFFICE, OR INVENTORY IN
OPELIKA, ITS ONLY CONTACT WITH THAT CITY BEING THE SOLICITATION OF
ORDERS AND THE DELIVERY OF GOODS.  (FN2) 

WE HELD IN NIPPERT V. CITY OF RICHMOND, 327 U.S. 416, AND IN MEMPHIS
STEAM LAUNDRY CLEANER, INC. V. STONE, 342 U.S. 389, THAT A MUNICIPALITY
MAY NOT IMPOSE A FLAT-SUM PRIVILEGE TAX ON AN INTERSTATE ENTERPRISE
WHOSE ONLY CONTACT WITH THE MUNICIPALITY IS THE SOLICITATION OF ORDERS
AND THE SUBSEQUENT DELIVERY OF GOODS AT THE END OF AN UNINTERRUPTED
MOVEMENT IN INTERSTATE COMMERCE, SUCH A TAX HAVING A SUBSTANTIAL
EXCLUSORY EFFECT ON INTERSTATE COMMERCE.  IN OUR OPINION THE TAX HERE
IN QUESTION FALLS SQUARELY WITHIN THE BAN OF THOSE CASES.  THIS IS
PARTICULARLY SO IN THAT OPELIKA PLACES NO COMPARABLE FLAT-SUM TAX ON
LOCAL MERCHANTS.  WHOLESALE GROCERS WHOSE DELIVERIES ORIGINATE IN
OPELIKA, INSTEAD OF PAYING $250 ANNUALLY, ARE TAXED A SUM GRADUATED
ACCORDING TO THEIR GROSS RECEIPTS.  SUCH AN OPELIKA WHOLESALER WOULD
HAVE TO GROSS THE SUM OF $280,000 IN SALES IN ONE YEAR BEFORE HIS TAX
WOULD REACH THE FLAT $250 AMOUNT IMPOSED ON ALL FOREIGN GROCERS BEFORE
THEY MAY SET FOOT IN THE CITY.  (FN3)  THE COMMERCE CLAUSE FORBIDS ANY
SUCH DISCRIMINATION AGAINST THE FREE FLOW OF TRADE OVER STATE
BOUNDARIES. 

SINCE THE PRESENT TAX CANNOT CONSTITUTIONALLY BE APPLIED TO THE
APPELLANT, THE JUDGMENT MUST BE REVERSED AND THE CASE REMANDED FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  THE ORDINANCE PROVIDES FOR THE FOLLOWING "SCHEDULE OF RATES FOR
LICENSE OR PRIVILEGE TAXES FOR THE CONDUCT OF ANY TRADE, VOCATION,
PROFESSION OR OTHER BUSINESS CONDUCTED WITHIN THE CITY OF OPELIKA": 

"EACH PERSON, FIRM OR CORPORATION ENGAGED IN THE WHOLESALE GROCERY
BUSINESS WHO UNLOADS DELIVERS, DISTRIBUTES OR DISPOSES OF GROCERIES AT
WHOLESALE IN THE CITY OF OPELIKA, ALABAMA WHICH ARE TRANSPORTED FROM A
POINT WITHOUT THE CITY OF OPELIKA, ALABAMA TO A POINT WITHIN THE CITY
OF OPELIKA, ALABAMA, ANNUAL ONLY               $250.00." 

FN2  THE FACTS, WHICH ARE ADMITTED FOR PURPOSES OF THE DEMURRER, ARE
TAKEN FROM THE COMPLAINT. 

FN3  SECTION 82 OF THE ORDINANCE PROVIDES FOR THE FOLLOWING RATES OF
TAX ON LOCAL WHOLESALE MERCHANTS: 

"WHERE A GROSS ANNUAL BUSINESS IS: 

$100,000.00 AND LESS                               $35.00 

OVER $100,000.00 AND LESS THAN $200,000.00         $50.00 

$200,000.00 AND LESS THAN $500,000.00              $75.00 

$500,000.00 AND LESS THAN $1,000,000.00           $100.00 

$1,000,000.00 AND LESS THAN $2,000,000.00         $200.00 

$2,000,000.00 AND OVER                            $250.00 

"AND IN ADDITION THERETO, ONE-SIXTEENTH (1/16) OF ONE PERCENT (1%) ON
THE FIRST $500,000.00 GROSS RECEIPTS, PLUS ONE-TWENTIETH (1/20) OF ONE
PERCENT (1%) ON THE NEXT $500,000.00 GROSS RECEIPTS PLUS ONE-FORTIETH
(1/40) OF ONE PERCENT (1%) ON ALL GROSS RECEIPTS OVER ONE MILLION
DOLLARS ($1,000,000.00)." 

THUS A LOCAL WHOLESALE GROCER GROSSING $280,000 IN ONE YEAR WOULD PAY
A SUM OF $75, PLUS 1/16 OF ONE PERCENT OF HIS SALES, THAT IS, $175 - A
TOTAL OF $250. 

MR. JUSTICE BLACK DISSENTS. 
..END :











BLACKBURN V. ALABAMA 354 U.S. 393 


NO. 426.  ARGUED MAY 2, 1957.  - DECIDED JUNE 17, 1957.  - 38 ALA. APP.
143, 88 SO. 2D 199, JUDGMENT VACATED AND CAUSE REMANDED. 


ON THE RECORD IN THIS CASE, IT IS UNCERTAIN WHETHER PETITIONER'S CLAIM
TO PROTECTION UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
WAS PASSED ON BY THE STATE COURT OF APPEALS, AND THE JUDGMENT OF THAT
COURT IS VACATED AND THE CAUSE REMANDED TO THAT COURT, SO THAT IT MAY
PASS ON THAT CLAIM. 

BLACKBURN V. ALABAMA. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

PER CURIAM. 

THE RECORD IN THIS CASE LEAVES US UNCERTAIN WHETHER PETITIONER'S
CLAIM TO THE PROTECTION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION WAS PASSED UPON BY THE
COURT OF APPEALS OF ALABAMA.  38 ALA. APP. 143, 88 SO. 2D 199. 
ACCORDINGLY, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CAUSE TO THAT COURT IN ORDER THAT IT MAY PASS UPON THIS CLAIM. 
MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BRENNAN CONCUR, DISSENTING. 

PETITIONER HAS MADE AS STRONG A SHOWING AS POSSIBLE THAT HE SIGNED
THE CONFESSION WHEN HE WAS INSANE.  THROUGOUT THE WHOLE PROCEEDING HE
HAS CLAIMED THAT THE CONFESSION WAS INVOLUNTARY.  THE JUDGMENT SHOULD
THEREFORE BE REVERSED.  SEE CHAMBERS V. FLORIDA, 309 U.S. 227; LEYRA V.
DENNO, 347 U.S. 556. 
..END :


















REID V. COVERT 354 U.S. 1 


NO. 701, OCTOBER TERM, 1955.  ARGUED MAY 3, 1956; DECIDED JUNE 11, 1956;
REHEARING GRANTED NOVEMBER 5, 1956; REARGUED FEBRUARY 27, 1957.  -
DECIDED JUNE 10, 1957.  - JUDGMENT BELOW IN NO. 701, OCTOBER TERM,
1955, AFFIRMED.  - 137 F. SUPP. 806, REVERSED AND REMANDED. 


ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE, PROVIDING FOR
THE TRIAL BY COURT-MARTIAL OF "ALL PERSONS  ...  ACCOMPANYING THE ARMED
FORCES" OF THE UNITED STATES IN FOREIGN COUNTRIES, CANNOT
CONSTITUTIONALLY BE APPLIED, IN CAPITAL CASES, TO THE TRIAL OF CIVILIAN
DEPENDENTS ACCOMPANYING MEMBERS OF THE ARMED FORCES OVERSEAS IN TIME OF
PEACE.  KINSELLA V. KRUEGER, 351 U.S. 470, AND REID V. COVERT, 351 U.S.
487, WITHDRAWN.  PP. 3-78. 

MR. JUSTICE BLACK, IN AN OPINION JOINED BY THE CHIEF JUSTICE, MR.
JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN, CONCLUDED THAT: 

1.  WHEN THE UNITED STATES ACTS AGAINST ITS CITIZENS ABROAD, IT CAN
DO SO ONLY IN ACCORDANCE WITH ALL THE LIMITATIONS IMPOSED BY THE
CONSTITUTION, INCLUDING ART. III, SEC. 2, AND THE FIFTH AND SIXTH
AMENDMENTS.  PP. 5-14. 

2.  INSOFAR AS ART. 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE
PROVIDES FOR THE MILITARY TRIAL OF CIVILIAN DEPENDENTS ACCOMPANYING THE
ARMED FORCES IN FOREIGN COUNTRIES, IT CANNOT BE SUSTAINED AS
LEGISLATION WHICH IS "NECESSARY AND PROPER" TO CARRY OUT OBLIGATIONS OF
THE UNITED STATES UNDER INTERNATIONAL AGREEMENTS MADE WITH THOSE
COUNTRIES; SINCE NO AGREEMENT WITH A FOREIGN NATION CAN CONFER ON
CONGRESS OR ANY OTHER BRANCH OF THE GOVERNMENT POWER WHICH IS FREE FROM
THE RESTRAINTS OF THE CONSTITUTION.  PP. 15-19. 

3.  THE POWER OF CONGRESS UNDER ART. I, SEC. 8, CL. 14, OF THE
CONSTITUTION, "TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE
LAND AND NAVAL FORCES," TAKEN IN CONJUNCTION WITH THE NECESSARY AND
PROPER CLAUSE, DOES NOT EXTEND TO CIVILIANS - EVEN THOUGH THEY MAY BE
DEPENDENTS LIVING WITH SERVICEMEN ON A MILITARY BASE.  PP. 19-40. 

4.  UNDER OUR CONSTITUTION, COURTS OF LAW ALONE ARE GIVEN POWER TO
TRY CIVILIANS FOR THEIR OFFENSES AGAINST THE UNITED STATES.  PP. 40
41. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT, CONCLUDED THAT, IN
CAPITAL CASES, THE EXERCISE OF COURT-MARTIAL JURISDICTION OVER CIVILIAN
DEPENDENTS IN TIME OF PEACE CANNOT BE JUSTIFIED BY THE POWER OF
CONGRESS UNDER ARTICLE I TO REGULATE THE "LAND AND NAVAL FORCES," WHEN
CONSIDERED IN CONNECTION WITH THE SPECIFIC PROTECTIONS AFFORDED
CIVILIANS BY ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS.  PP. 41
64. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT, CONCLUDED THAT, WHERE
THE OFFENSE IS CAPITAL, ART. 2(11) OF THE UNIFORM CODE OF MILITARY
JUSTICE CANNOT CONSTITUTIONALLY BE APPLIED TO THE TRIAL OF CIVILIAN
DEPENDENTS OF MEMBERS OF THE ARMED FORCES OVERSEAS IN TIMES OF PEACE. 
PP. 65-78. 

REID, SUPERINTENDENT, DISTRICT OF COLUMBIA JAIL, V. COVERT. 

ON REHEARING.* 

*TOGETHER WITH NO. 713, OCTOBER TERM, 1955, KINSELLA, WARDEN, V.
KRUEGER, ALSO ON REHEARING; ARGUED, DECIDED, REHEARING GRANTED,
REARGUED, AND DECIDED ON THE SAME DATES. 

MR. JUSTICE BLACK ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
AN OPINION, IN WHICH THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, AND MR.
JUSTICE BRENNAN JOIN. 

THESE CASES RAISE BASIC CONSTITUTIONAL ISSUES OF THE UTMOST CONCERN. 
THEY CALL INTO QUESTION THE ROLE OF THE MILITARY UNDER OUR SYSTEM OF
GOVERNMENT.  THEY INVOLVE THE POWER OF CONGRESS TO EXPOSE CIVILIANS TO
TRIAL BY MILITARY TRIBUNALS, UNDER MILITARY REGULATIONS AND PROCEDURES,
FOR OFFENSES AGAINST THE UNITED STATES THEREBY DEPRIVING THEM OF TRIAL
IN CIVILIAN COURTS, UNDER CIVILIAN LAWS AND PROCEDURES AND WITH ALL THE
SAFEGUARDS OF THE BILL OF RIGHTS.  THESE CASES ARE PARTICULARLY
SIGNIFICANT BECAUSE FOR THE FIRST TIME SINCE THE ADOPTION OF THE
CONSTITUTION WIVES OF SOLDIERS HAVE BEEN DENIED TRIAL BY JURY IN A
COURT OF LAW AND FORCED TO TRIAL BEFORE COURTS-MARTIAL. 

IN NO. 701 MRS. CLARICE COVERT KILLED HER HUSBAND, A SERGEANT IN THE
UNITED STATES AIR FORCE, AT AN AIRBASE IN ENGLAND.  MRS. COVERT, WHO
WAS NOT A MEMBER OF THE ARMED SERVICES, WAS RESIDING ON THE BASE WITH
HER HUSBAND AT THE TIME.  SHE WAS TRIED BY A COURT-MARTIAL FOR MURDER
UNDER ARTICLE 118 OF THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ). 
(FN1)  THE TRIAL WAS ON CHARGES PREFERRED BY AIR FORCE PERSONNEL AND
THE COURT-MARTIAL WAS COMPOSED OF AIR FORCE OFFICERS.  THE COURT
MARTIAL ASSERTED JURISDICTION OVER MRS. COVERT UNDER ARTICLE 2(11) OF
THE UCMJ, (FN2) WHICH PROVIDES: 

"THE FOLLOWING PERSONS ARE SUBJECT TO THIS CODE: 

     *         *   *         *         * 

"(11)  SUBJECT TO THE PROVISIONS OF ANY TREATY OR AGREEMENT TO WHICH
THE UNITED STATES IS OR MAY BE A PARTY OR TO ANY ACCEPTED RULE OF
INTERNATIONAL LAW, ALL PERSONS SERVING WITH, EMPLOYED BY, OR
ACCOMPANYING THE ARMED FORCES WITHOUT THE CONTINENTAL LIMITS OF THE
UNITED STATES  ...  ." 

COUNSEL FOR MRS. COVERT CONTENDED THAT SHE WAS INSANE AT THE TIME SHE
KILLED HER HUSBAND, BUT THE MILITARY TRIBUNAL FOUND HER GUILTY OF
MURDER AND SENTENCED HER TO LIFE IMPRISONMENT.  THE JUDGMENT WAS
AFFIRMED BY THE AIR FORCE BOARD OF REVIEW, 16 CMR 465, BUT WAS REVERSED
BY THE COURT OF MILITARY APPEALS, 6 USCMA 48, BECAUSE OF PREJUDICIAL
ERRORS CONCERNING THE DEFENSE OF INSANITY.  WHILE MRS. COVERT WAS BEING
HELD IN THIS COUNTRY PENDING A PROPOSED RETRIAL BY COURT-MARTIAL IN THE
DISTRICT OF COLUMBIA, HER COUNSEL PETITIONED THE DISTRICT COURT FOR A
WRIT OF HABEAS CORPUS TO SET HER FREE ON THE GROUND THAT THE
CONSTITUTION FORBADE HER TRIAL BY MILITARY AUTHORITIES.  CONSTRUING
THIS COURT'S DECISION IN UNITED STATES EX REL. TOTH V. QUARLES, 350
U.S. 11, AS HOLDING THAT "A CIVILIAN IS ENTITLED TO A CIVILIAN TRIAL"
THE DISTRICT COURT HELD THAT MRS. COVERT COULD NOT BE TRIED BY COURT
MARTIAL AND ORDERED HER RELEASED FROM CUSTODY.  THE GOVERNMENT APPEALED
DIRECTLY TO THIS COURT UNDER 28 U.S.C. SEC. 1252.  SEE 350 U.S. 985. 

IN NO. 713 MRS. DOROTHY SMITH KILLED HER HUSBAND, AN ARMY OFFICER, AT
A POST IN JAPAN WHERE SHE WAS LIVING WITH HIM.  SHE WAS TRIED FOR
MURDER BY A COURT-MARTIAL AND DESPITE CONSIDERABLE EVIDENCE THAT SHE
WAS INSANE WAS FOUND GUILTY AND SENTENCED TO LIFE IMPRISONMENT.  THE
JUDGMENT WAS APPROVED BY THE ARMY BOARD OF REVIEW, 10 CMR 350, 13 CMR
307, AND THE COURT OF MILITARY APPEALS, 5 USCMA 314.   MRS.  SMITH WAS
THEN CONFINED IN A FEDERAL PENITENTIARY IN WEST VIRGINIA.  HER FATHER,
RESPONDENT HERE, FILED A PETITION FOR HABEAS CORPUS IN A DISTRICT COURT
FOR WEST VIRGINIA.  THE PETITION CHARGED THAT THE COURT-MARTIAL WAS
WITHOUT JURISDICTION BECAUSE ARTICLE 2(11) OF THE UCMJ WAS
UNCONSTITUTIONAL INSOFAR AS IT AUTHORIZED THE TRIAL OF CIVILIAN
DEPENDENTS ACCOMPANYING SERVICEMEN OVERSEAS.  THE DISTRICT COURT
REFUSED TO ISSUE THE WRIT, 137 F. SUPP. 806, AND WHILE AN APPEAL WAS
PENDING IN THE COURT OF APPEALS FOR THE FOURTH CIRCUIT WE GRANTED
CERTIORARI AT THE REQUEST OF THE GOVERNMENT, 350 U.S. 986. 

THE TWO CASES WERE CONSOLIDATED AND ARGUED LAST TERM AND A MAJORITY
OF THE COURT, WITH THREE JUDGES DISSENTING AND ONE RESERVING OPINION,
HELD THAT MILITARY TRIAL OF MRS. SMITH AND MRS. COVERT FOR THEIR
ALLEGED OFFENSES WAS CONSTITUTIONAL.  351 U.S. 470, 487.  THE MAJORITY
HELD THAT THE PROVISIONS OF ARTICLE III AND THE FIFTH AND SIXTH
AMENDMENTS WHICH REQUIRE THAT CRIMES BE TRIED BY A JURY AFTER
INDICTMENT BY A GRAND JURY DID NOT PROTECT AN AMERICAN CITIZEN WHEN HE
WAS TRIED BY THE AMERICAN GOVERNMENT IN FOREIGN LANDS FOR OFFENSES
COMMITTED THERE AND THAT CONGRESS COULD PROVIDE FOR THE TRIAL OF SUCH
OFFENSES IN ANY MANNER IT SAW FIT SO LONG AS THE PROCEDURES ESTABLISHED
WERE REASONABLE AND CONSONANT WITH DUE PROCESS.  THE OPINION THEN WENT
ON TO EXPRESS THE VIEW THAT MILITARY TRIALS, AS NOW PRACTICED, WERE NOT
UNREASONABLE OR ARBITRARY WHEN APPLIED TO DEPENDENTS ACCOMPANYING
MEMBERS OF THE ARMED FORCES OVERSEAS.  IN REACHING THEIR CONCLUSION THE
MAJORITY FOUND IT UNNECESSARY TO CONSIDER THE POWER OF CONGRESS "TO
MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL
FORCES" UNDER ARTICLE I OF THE CONSTITUTION. 

SUBSEQUENTLY, THE COURT GRANTED A PETITION FOR REHEARING, 352 U.S.
901.  NOW, AFTER FURTHER ARGUMENT AND CONSIDERATION, WE CONCLUDE THAT
THE PREVIOUS DECISIONS CANNOT BE PERMITTED TO STAND.  WE HOLD THAT MRS.
SMITH AND MRS. COVERT COULD NOT CONSTITUTIONALLY BE TRIED BY MILITARY
AUTHORITIES. 

I. 

AT THE BEGINNING WE REJECT THE IDEA THAT WHEN THE UNITED STATES ACTS
AGAINST CITIZENS ABROAD IT CAN DO SO FREE OF THE BILL OF RIGHTS.  THE
UNITED STATES IS ENTIRELY A CREATURE OF THE CONSTITUTION.   (FN3)  ITS
POWER AND AUTHORITY HAVE NO OTHER SOURCE.  IT CAN ONLY ACT IN
ACCORDANCE WITH ALL THE LIMITATIONS IMPOSED BY THE CONSTITUTION.  (FN4)
WHEN THE GOVERNMENT REACHES OUT TO PUNISH A CITIZEN WHO IS ABROAD, THE
SHIELD WHICH THE BILL OF RIGHTS AND OTHER PARTS OF THE CONSTITUTION
PROVIDE TO PROTECT HIS LIFE AND LIBERTY SHOULD NOT BE STRIPPED AWAY
JUST BECAUSE HE HAPPENS TO BE IN ANOTHER LAND.  THIS IS NOT A NOVEL
CONCEPT.  TO THE CONTRARY, IT IS AS OLD AS GOVERNMENT.  IT WAS
RECOGNIZED LONG BEFORE PAUL SUCCESSFULLY INVOKED HIS RIGHT AS A ROMAN
CITIZEN TO BE TRIED IN STRICT ACCORDANCE WITH ROMAN LAW.  AND MANY
CENTURIES LATER AN ENGLISH HISTORIAN WROTE: 

"IN A SETTLED COLONY THE INHABITANTS HAVE ALL THE RIGHTS OF
ENGLISHMEN.  THEY TAKE WITH THEM, IN THE FIRST PLACE, THAT WHICH NO
ENGLISHMAN CAN BY EXPATRIATION PUT OFF, NAMELY, ALLEGIANCE TO THE
CROWN, THE DUTY OF OBEDIENCE TO THE LAWFUL COMMANDS OF THE SOVEREIGN,
AND OBEDIENCE TO THE LAWS WHICH PARLIAMENT MAY THINK PROPER TO MAKE
WITH REFERENCE TO SUCH A COLONY.  BUT, ON THE OTHER HAND, THEY TAKE
WITH THEM ALL THE RIGHTS AND LIBERTIES OF BRITISH SUBJECTS; ALL THE
RIGHTS AND LIBERTIES AS AGAINST THE PREROGATIVE OF THE CROWN, WHICH
THEY WOULD ENJOY IN THIS COUNTRY."  (FN5) 

THE RIGHTS AND LIBERTIES WHICH CITIZENS OF OUR COUNTRY ENJOY ARE NOT
PROTECTED BY CUSTOM AND TRADITION ALONE, THEY HAVE BEEN JEALOUSLY
PRESERVED FROM THE ENCROACHMENTS OF GOVERNMENT BY EXPRESS PROVISIONS OF
OUR WRITTEN CONSTITUTION.  (FN6) 

AMONG THOSE PROVISIONS, ART. III, SEC. 2 AND THE FIFTH AND SIXTH
AMENDMENTS ARE DIRECTLY RELEVANT TO THESE CASES.  ARTICLE III, SEC. 2
LAYS DOWN THE RULE THAT: 

"THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY
JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID CRIMES
SHALL HAVE BEEN COMMITTED; BUT WHEN NOT COMMITTED WITHIN ANY STATE, THE
TRIAL SHALL BE AT SUCH PLACE OR PLACES AS THE CONGRESS MAY BE LAW HAVE
DIRECTED." 

THE FIFTH AMENDMENT DECLARES: 

"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; ...  ." 

AND THE SIXTH AMENDMENT PROVIDES: 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED  ...  ." 

THE LANGUAGE OF ART. III, SEC. 2 MANIFESTS THAT CONSTITUTIONAL
PROTECTIONS FOR THE INDIVIDUAL WERE DESIGNED TO RESTRICT THE UNITED
STATES GOVERNMENT WHEN IT ACTS OUTSIDE OF THIS COUNTRY, AS WELL AS HERE
AT HOME.  AFTER DECLARING THAT ALL CRIMINAL TRIALS MUST BE BY JURY, THE
THE TRIAL SHALL BE AT SUCH PLACE OR PLACES AS THE CONGRESS MAY BY LAW
HAVE DIRECTED."  IF THIS LANGUAGE IS PERMITTED TO HAVE ITS OBVIOUS
MEANING, (FN7) SEC. 2 IS APPLICABLE TO CRIMINAL TRIALS OUTSIDE OF THE
STATES AS A GROUP WITHOUT REGARD TO WHERE THE OFFENSE IS COMMITTED OR
THE TRIAL HELD.  (FN8)  FROM THE VERY FIRST CONGRESS, FEDERAL STATUTES
HAVE IMPLEMENTED THE PROVISIONS OF SEC. 2 BY PROVIDING FOR TRIAL OF
MURDER AND OTHER CRIMES COMMITTED OUTSIDE THE JURISDICTION OF ANY STATE
"IN THE DISTRICT WHERE THE OFFENDER IS APPREHENDED, OR INTO WHICH HE
MAY FIRST BE BROUGHT."  (FN9)  THE FIFTH AND SIXTH AMENDMENTS, LIKE
ART. III, SEC. 2, ARE ALSO ALL INCLUSIVE WITH THEIR SWEEPING REFERENCES
TO "NO PERSON" AND TO "ALL CRIMINAL PROSECUTIONS." 

THIS COURT AND OTHER FEDERAL COURTS HAVE HELD OR ASSERTED THAT
VARIOUS CONSTITUTIONAL LIMITATIONS APPLY TO THE GOVERNMENT WHEN IT ACTS
OUTSIDE THE CONTINENTAL UNITED STATES.  (FN10)  WHILE IT HAS BEEN
SUGGESTED THAT ONLY THOSE CONSTITUTIONAL RIGHTS WHICH ARE "FUNDAMENTAL"
PROTECT AMERICANS ABROAD, (FN11) WE CAN FIND NO WARRANT, IN LOGIC OR
OTHERWISE, FOR PICKING AND CHOOSING AMONG THE REMARKABLE COLLECTION OF
"THOU SHALT NOTS" WHICH WERE EXPLICITLY FASTENED ON ALL DEPARTMENTS AND
AGENCIES OF THE FEDERAL GOVERNMENT BY THE CONSTITUTION AND ITS
AMENDMENTS.  MOREOVER, IN VIEW OF OUR HERITAGE AND THE HISTORY OF THE
ADOPTION OF THE CONSTITUTION AND THE BILL OF RIGHTS, IT SEEMS
PECULIARLY ANOMALOUS TO SAY THAT TRIAL BEFORE A CIVILIAN JUDGE AND BY
AN INDEPENDENT JURY PICKED FROM THE COMMON CITIZENRY IS NOT A
FUNDAMENTAL RIGHT.  (FN12)  AS BLACKSTONE WROTE IN HIS COMMENTARIES: 

"  ...  THE TRIAL BY JURY EVER HAS BEEN, AND I TRUST EVER WILL BE,
LOOKED UPON AS THE GLORY OF THE ENGLISH LAW.  AND IF IT HAS SO GREAT AN
ADVANTAGE OVER OTHERS IN REGULATING CIVIL PROPERTY, HOW MUCH MUST THAT
ADVANTAGE BE HEIGHTENED WHEN IT IS APPLIED TO CRIMINAL CASES]  ...  IT
IS THE MOST TRANSCENDENT PRIVILEGE WHICH ANY SUBJECT CAN ENJOY, OR WISH
FOR, THAT HE CANNOT BE AFFECTED EITHER IN HIS PROPERTY, HIS LIBERTY, OR
HIS PERSON, BUT BY THE UNANIMOUS CONSENT OF TWELVE OF HIS NEIGHBOURS
AND EQUALS."  (FN13) 

TRIAL BY JURY IN A COURT OF LAW AND IN ACCORDANCE WITH TRADITIONAL
MODES OF PROCEDURE AFTER AN INDICTMENT BY GRAND JURY HAS SERVED AND
REMAINS ONE OF OUR MOST VITAL BARRIERS TO GOVERNMENTAL ARBITRARINESS. 
THESE ELEMENTAL PROCEDURAL SAFEGUARDS WERE EMBEDDED IN OUR CONSTITUTION
TO SECURE THEIR INVIOLATENESS AND SANCTITY AGAINST THE PASSING DEMANDS
OF EXPEDIENCY OR CONVENIENCE. 

THE KEYSTONE OF SUPPORTING AUTHORITIES MUSTERED BY THE COURT'S
OPINION LAST JUNE TO JUSTIFY ITS HOLDING THAT ART. III, SEC. 2, AND THE
FIFTH AND SIXTH AMENDMENTS DID NOT APPLY ABROAD WAS IN RE ROSS, 140
U.S. 453.  THE ROSS CASE IS ONE OF THOSE CASES THAT CANNOT BE
UNDERSTOOD EXCEPT IN ITS PECULIAR SETTING; EVEN THEN, IT SEEMS HIGHLY
UNLIKELY THAT A SIMILAR RESULT WOULD BE REACHED TODAY.  ROSS WAS
SERVING AS A SEAMAN ON AN AMERICAN SHIP IN JAPANESE WATERS.  HE KILLED
A SHIP'S OFFICER, WAS SEIZED AND TRIED BEFORE A CONSULAR "COURT" IN
JAPAN.  AT THAT TIME, STATUTES AUTHORIZED AMERICAN CONSULS TO TRY
AMERICAN CITIZENS CHARGED WITH COMMITTING CRIMES IN JAPAN AND CERTAIN
OTHER "NON-CHRISTIAN" COUNTRIES.  (FN14)  THESE STATUTES PROVIDED THAT
THE LAWS OF THE UNITED STATES WERE TO GOVERN THE TRIAL EXCEPT: 

"  ...  WHERE SUCH LAWS ARE NOT ADAPTED TO THE OBJECT, OR ARE
DEFICIENT IN THE PROVISIONS NECESSARY TO FURNISH SUITABLE REMEDIES, THE
COMMON LAW AND THE LAW OF EQUITY AND ADMIRALTY SHALL BE EXTENDED IN
LIKE MANNER OVER SUCH CITIZENS AND OTHERS IN THOSE COUNTRIES; AND IF
NEITHER THE COMMON LAW, NOR THE LAW OF EQUITY OR ADMIRALTY, NOR THE
STATUTES OF THE UNITED STATES, FURNISH APPROPRIATE AND SUFFICIENT
REMEDIES, THE MINISTERS IN THOSE COUNTRIES, RESPECTIVELY, SHALL, BY
DECREES AND REGULATIONS WHICH SHALL HAVE THE FORCE OF LAW, SUPPLY SUCH
DEFECTS AND DEFICIENCIES."  (FN15) 

THE CONSULAR POWER APPROVED IN THE ROSS CASE WAS ABOUT AS EXTREME AND
ABSOLUTE AS THAT OF THE POTENTATES OF THE "NON-CHRISTIAN" COUNTRIES TO
WHICH THE STATUTES APPLIED.  UNDER THESE STATUTES CONSULS COULD AND DID
MAKE THE CRIMINAL LAWS, INITIATE CHARGES, ARREST ALLEGED OFFENDERS, TRY
THEM, AND AFTER CONVICTION TAKE AWAY THEIR LIBERTY OR THEIR LIFE -
SOMETIMES AT THE AMERICAN CONSULATE.  SUCH A BLENDING OF EXECUTIVE,
LEGISLATIVE, AND JUDICIAL POWERS IN ONE PERSON OR EVEN IN ONE BRANCH OF
THE GOVERNMENT IS ORDINARILY REGARDED AS THE VERY ACME OF ABSOLUTISM. 
(FN16)  NEVERTHELESS, THE COURT SUSTAINED ROSS' CONVICTION BY THE
CONSUL.  IT STATED THAT CONSTITUTIONAL PROTECTIONS APPLIED "ONLY TO
CITIZENS AND OTHERS WITHIN THE UNITED STATES, OR WHO ARE BROUGHT THERE
FOR TRIAL FOR ALLEGED OFFENCES COMMITTED ELSEWHERE, AND NOT TO
RESIDENTS OR TEMPORARY SOJOURNERS ABROAD."  (FN17) DESPITE THE FACT
THAT IT UPHELD ROSS' CONVICTION UNDER UNITED STATES LAWS PASSED
PURSUANT TO ASSERTED CONSTITUTIONAL AUTHORITY, THE COURT WENT ON TO
MAKE A SWEEPING DECLARATION THAT "THE CONSTITUTION CAN HAVE NO
OPERATION IN ANOTHER COUNTRY."  (FN18)    THE ROSS APPROACH THAT THE
CONSTITUTION HAS NO APPLICABILITY ABROAD HAS LONG SINCE BEEN DIRECTLY
REPUDIATED BY NUMEROUS CASES.  (FN19)  THAT APPROACH IS OBVIOUSLY
ERRONEOUS IF THE UNITED STATES GOVERNMENT, WHICH HAS NO POWER EXCEPT
THAT GRANTED BY THE CONSTITUTION, CAN AND DOES TRY CITIZENS FOR CRIMES
COMMITTED ABROAD.  (FN20)  THUS THE ROSS CASE RESTED, AT LEAST IN
SUBSTANTIAL PART, ON A FUNDAMENTAL MISCONCEPTION AND THE MOST THAT CAN
BE SAID IN SUPPORT OF THE RESULT REACHED THERE IS THAT THE CONSULAR
COURT JURISDICTION HAD A LONG HISTORY ANTEDATING THE ADOPTION OF THE
CONSTITUTION.   THE CONGRESS HAS RECENTLY BURIED THE CONSULAR SYSTEM OF
TRYING AMERICANS.  (FN21)  WE ARE NOT WILLING TO JEOPARDIZE THE LIVES
AND LIBERTIES OF AMERICANS BY DISINTERRING IT.  AT BEST, THE ROSS CASE
SHOULD BE LEFT AS A RELIC FROM A DIFFERENT ERA. 

THE COURT'S OPINION LAST TERM ALSO RELIED ON THE "INSULAR CASES" TO
SUPPORT ITS CONCLUSION THAT ARTICLE III AND THE FIFTH AND SIXTH
AMENDMENTS WERE NOT APPLICABLE TO THE TRIAL OF MRS. SMITH AND MRS.
COVERT.  (FN22)  WE BELIEVE THAT RELIANCE WAS MISPLACED.  THE "INSULAR
CASES," WHICH AROSE AT THE TURN OF THE CENTURY, INVOLVED TERRITORIES
WHICH HAD ONLY RECENTLY BEEN CONQUERED OR ACQUIRED BY THE UNITED
STATES.  THESE TERRITORIES, GOVERNED AND REGULATED BY CONGRESS UNDER
ART. IV, SEC. 3, (FN23) HAD ENTIRELY DIFFERENT CULTURES AND CUSTOMS
FROM THOSE OF THIS COUNTRY.  THIS COURT, ALTHOUGH CLOSELY DIVIDED,
(FN24) RULED THAT CERTAIN CONSTITUTIONAL SAFEGUARDS WERE NOT APPLICABLE
TO THESE TERRITORIES SINCE THEY HAD NOT BEEN "EXPRESSLY OR IMPLIEDLY
INCORPORATED" INTO THE UNION BY CONGRESS.  WHILE CONCEDING THAT
"FUNDAMENTAL" CONSTITUTIONAL RIGHTS APPLIED EVERYWHERE, (FN25) THE
MAJORITY FOUND THAT IT WOULD DISRUPT LONG-ESTABLISHED PRACTICES AND
WOULD BE INEXPEDIENT TO REQUIRE A JURY TRIAL AFTER AN INDICTMENT BY A
GRAND JURY IN THE INSULAR POSSESSIONS.  (FN26) 

THE "INSULAR CASES" CAN BE DISTINGUISHED FROM THE PRESENT CASES IN
THAT THEY INVOLVED THE POWER OF CONGRESS TO PROVIDE RULES AND
REGULATIONS TO GOVERN TEMPORARILY TERRITORIES WITH WHOLLY DISSIMILAR
TRADITIONS AND INSTITUTIONS WHEREAS HERE THE BASIS FOR GOVERNMENTAL
POWER IS AMERICAN CITIZENSHIP.  NONE OF THESE CASES HAD ANYTHING TO DO
WITH MILITARY TRIALS AND THEY CANNOT PROPERLY BE USED AS VEHICLES TO
SUPPORT AN EXTENSION OF MILITARY JURISDICTION TO CIVILIANS.  MOREOVER,
IT IS OUR JUDGMENT THAT NEITHER THE CASES NOR THEIR REASONING SHOULD BE
GIVEN ANY FURTHER EXPANSION.  THE CONCEPT THAT THE BILL OF RIGHTS AND
OTHER CONSTITUTIONAL PROTECTIONS AGAINST ARBITRARY GOVERNMENT ARE
INOPERATIVE WHEN THEY BECOME INCONVENIENT OR WHEN EXPEDIENCY DICTATES
OTHERWISE IS A VERY DANGEROUS DOCTRINE AND IF ALLOWED TO FLOURISH WOULD
DESTROY THE BENEFIT OF A WRITTEN CONSTITUTION AND UNDERMINE THE BASIS
OF OUR GOVERNMENT.  IF OUR FOREIGN COMMITMENTS BECOME OF SUCH NATURE
THAT THE GOVERNMENT CAN NO LONGER SATISFACTORILY OPERATE WITHIN THE
BOUNDS LAID DOWN BY THE CONSTITUTION, THAT INSTRUMENT CAN BE AMENDED BY
THE METHOD WHICH IT PRESCRIBES.  (FN27)  BUT WE HAVE NO AUTHORITY, OR
INCLINATION, TO READ EXCEPTIONS INTO IT WHICH ARE NOT THERE.  (FN28)

                                  II. 

AT THE TIME OF MRS. COVERT'S ALLEGED OFFENSE, AN EXECUTIVE AGREEMENT
WAS IN EFFECT BETWEEN THE UNITED STATES AND GREAT BRITAIN WHICH
PERMITTED UNITED STATES' MILITARY COURTS TO EXERCISE EXCLUSIVE
JURISDICTION OVER OFFENSES COMMITTED IN GREAT BRITAIN BY AMERICAN
SERVICEMEN OR THEIR DEPENDENTS.  (FN29)  FOR ITS PART, THE UNITED
STATES AGREED THAT THESE MILITARY COURTS WOULD BE WILLING AND ABLE TO
TRY AND TO PUNISH ALL OFFENSES AGAINST THE LAWS OF GREAT BRITAIN BY
SUCH PERSONS.  IN ALL MATERIAL RESPECTS, THE SAME SITUATION EXISTED IN
JAPAN WHEN MRS. SMITH KILLED HER HUSBAND.  (FN30) EVEN THOUGH A COURT
MARTIAL DOES NOT GIVE AN ACCUSED TRIAL BY JURY AND OTHER BILL OF RIGHTS
PROTECTIONS, THE GOVERNMENT CONTENDS THAT ART. 2(11) OF THE UCMJ,
INSOFAR AS IT PROVIDES FOR THE MILITARY TRIAL OF DEPENDENTS
ACCOMPANYING THE ARMED FORCES IN GREAT BRITAIN AND JAPAN, CAN BE
SUSTAINED AS LEGISLATION WHICH IS NECESSARY AND PROPER TO CARRY OUT THE
UNITED STATES' OBLIGATIONS UNDER THE INTERNATIONAL AGREEMENTS MADE WITH
THOSE COUNTRIES.  THE OBVIOUS AND DECISIVE ANSWER TO THIS, OF COURSE,
IS THAT NO AGREEMENT WITH A FOREIGN NATION CAN CONFER POWER ON THE
CONGRESS, OR ON ANY OTHER BRANCH OF GOVERNMENT, WHICH IS FREE FROM THE
RESTRAINTS OF THE CONSTITUTION. 

ARTICLE VI, THE SUPREMACY CLAUSE OF THE CONSTITUTION, DECLARES: 

"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; ...  ." 

THERE IS NOTHING IN THIS LANGUAGE WHICH INTIMATES THAT TREATIES AND
LAWS ENACTED PURSUANT TO THEM DO NOT HAVE TO COMPLY WITH THE PROVISIONS
OF THE CONSTITUTION.  NOR IS THERE ANYTHING IN THE DEBATES WHICH
ACCOMPANIED THE DRAFTING AND RATIFICATION OF THE CONSTITUTION WHICH
EVEN SUGGESTS SUCH A RESULT.  THESE DEBATES AS WELL AS THE HISTORY THAT
SURROUNDS THE ADOPTION OF THE TREATY PROVISION IN ARTICLE VI MAKE IT
CLEAR THAT THE REASON TREATIES WERE NOT LIMITED TO THOSE MADE IN
"PURSUANCE" OF THE CONSTITUTION WAS SO THAT AGREEMENTS MADE BY THE
UNITED STATES UNDER THE ARTICLES OF CONFEDERATION, INCLUDING THE
IMPORTANT PEACE TREATIES WHICH CONCLUDED THE REVOLUTIONARY WAR, WOULD
REMAIN IN EFFECT.  (FN31)  IT WOULD BE MANIFESTLY CONTRARY TO THE
OBJECTIVES OF THOSE WHO CREATED THE CONSTITUTION, AS WELL AS THOSE WHO
WERE RESPONSIBLE FOR THE BILL OF RIGHTS - LET ALONE ALIEN TO OUR ENTIRE
CONSTITUTIONAL HISTORY AND TRADITION - TO CONSTRUE ARTICLE VI AS
PERMITTING THE UNITED STATES TO EXERCISE POWER UNDER AN INTERNATIONAL
AGREEMENT WITHOUT OBSERVING CONSTITUTIONAL PROHIBITIONS.  (FN32)  IN
EFFECT, SUCH CONSTRUCTION WOULD PERMIT AMENDMENT OF THAT DOCUMENT IN A
MANNER NOT SANCTIONED BY ARTICLE V. THE PROHIBITIONS OF THE
CONSTITUTION WERE DESIGNED TO APPLY TO ALL BRANCHES OF THE NATIONAL
GOVERNMENT AND THEY CANNOT BE NULLIFIED BY THE EXECUTIVE OR BY THE
EXECUTIVE AND THE SENATE COMBINED. 

THERE IS NOTHING NEW OR UNIQUE ABOUT WHAT WE SAY HERE.  THIS COURT
HAS REGULARLY AND UNIFORMLY RECOGNIZED THE SUPREMACY OF THE
CONSTITUTION OVER A TREATY.  (FN33)  FOR EXAMPLE, IN GEOFROY V. RIGGS,
133 U.S. 258, 267, IT DECLARED: 

"THE TREATY POWER, AS EXPRESSED IN THE CONSTITUTION, IS IN TERMS
UNLIMITED EXCEPT BY THOSE RESTRAINTS WHICH ARE FOUND IN THAT INSTRUMENT
AGAINST THE ACTION OF THE GOVERNMENT OR OF ITS DEPARTMENTS, AND THOSE
ARISING FROM THE NATURE OF THE GOVERNMENT ITSELF AND OF THAT OF THE
STATES.  IT WOULD NOT BE CONTENDED THAT IT EXTENDS SO FAR AS TO
AUTHORIZE WHAT THE CONSTITUTION FORBIDS, OR A CHANGE IN THE CHARACTER
OF THE GOVERNMENT OR IN THAT OF ONE OF THE STATES, OR A CESSION OF ANY
PORTION OF THE TERRITORY OF THE LATTER, WITHOUT ITS CONSENT." 

THIS COURT HAS ALSO REPEATEDLY TAKEN THE POSITION THAT AN ACT OF
CONGRESS, WHICH MUST COMPLY WITH THE CONSTITUTION, IS ON A FULL PARITY
WITH A TREATY, AND THAT WHEN A STATUTE WHICH IS SUBSEQUENT IN TIME IS
INCONSISTENT WITH A TREATY, THE STATUTE TO THE EXTENT OF CONFLICT
RENDERS THE TREATY NULL.  (FN34)  IT WOULD BE COMPLETELY ANOMALOUS TO
SAY THAT A TREATY NEED NOT COMPLY WITH THE CONSTITUTION WHEN SUCH AN
AGREEMENT CAN BE OVERRIDDEN BY A STATUTE THAT MUST CONFORM TO THAT
INSTRUMENT. 

THERE IS NOTHING IN MISSOURI V. HOLLAND, 252 U.S. 416, WHICH IS
CONTRARY TO THE POSITION TAKEN HERE.  THERE THE COURT CAREFULLY NOTED
THAT THE TREATY INVOLVED WAS NOT INCONSISTENT WITH ANY SPECIFIC
PROVISION OF THE CONSTITUTION.  THE COURT WAS CONCERNED WITH THE TENTH
AMENDMENT WHICH RESERVES TO THE STATES OR THE PEOPLE ALL POWER NOT
DELEGATED TO THE NATIONAL GOVERNMENT.  TO THE EXTENT THAT THE UNITED
STATES CAN VALIDLY MAKE TREATIES, THE PEOPLE AND THE STATES HAVE
DELEGATED THEIR POWER TO THE NATIONAL GOVERNMENT AND THE TENTH
AMENDMENT IS NO BARRIER.  (FN35) 

IN SUMMARY, WE CONCLUDE THAT THE CONSTITUTION IN ITS ENTIRETY APPLIED
TO THE TRIALS OF MRS. SMITH AND MRS. COVERT.  SINCE THEIR COURT-MARTIAL
DID NOT MEET THE REQUIREMENTS OF ART. III, SEC. 2 OR THE FIFTH AND
SIXTH AMENDMENTS WE ARE COMPELLED TO DETERMINE IF THERE IS ANYTHING
WITHIN THE CONSTITUTION WHICH AUTHORIZES THE MILITARY TRIAL OF
DEPENDENTS ACCOMPANYING THE ARMED FORCES OVERSEAS. 

                                  III. 

ARTICLE I, SEC. 8, CL. 14 EMPOWERS CONGRESS "TO MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES."  IT HAS BEEN
HELD THAT THIS CREATES AN EXCEPTION TO THE NORMAL METHOD OF TRIAL IN
CIVILIAN COURTS AS PROVIDED BY THE CONSTITUTION AND PERMITS CONGRESS TO
AUTHORIZE MILITARY TRIAL OF MEMBERS OF THE ARMED SERVICES WITHOUT ALL
THE SAFEGUARDS GIVEN AN ACCUSED BY ARTICLE III AND THE BILL OF RIGHTS. 
(FN36)  BUT IF THE LANGUAGE OF CLAUSE 14 IS GIVEN ITS NATURAL MEANING,
(FN37) THE POWER GRANTED DOES NOT EXTEND TO CIVILIANS - EVEN THOUGH
THEY MAY BE DEPENDENTS LIVING WITH SERVICEMEN ON A MILITARY BASE. 
(FN38)  THE TERM "LAND AND NAVAL FORCES" REFERS TO PERSONS WHO ARE
MEMBERS OF THE ARMED SERVICES AND NOT TO THEIR CIVILIAN WIVES, CHILDREN
AND OTHER DEPENDENTS.  IT SEEMS INCONCEIVABLE THAT MRS. COVERT OR MRS.
SMITH COULD HAVE BEEN TRIED BY MILITARY AUTHORITIES AS MEMBERS OF THE
"LAND AND NAVAL FORCES" HAD THEY BEEN LIVING ON A MILITARY POST IN THIS
COUNTRY.  YET THIS CONSTITUTIONAL TERM SURELY HAS THE SAME MEANING
EVERYWHERE.  THE WIVES OF SERVICEMEN ARE NO MORE MEMBERS OF THE "LAND
AND NAVAL FORCES" WHEN LIVING AT A MILITARY POST IN ENGLAND OR JAPAN
THAN WHEN LIVING AT A BASE IN THIS COUNTRY OR IN HAWAII OR ALASKA. 

THE GOVERNMENT ARGUES THAT THE NECESSARY AND PROPER CLAUSE WHEN TAKEN
IN CONJUNCTION WITH CLAUSE 14 ALLOWS CONGRESS TO AUTHORIZE THE TRIAL OF
MRS. SMITH AND MRS. COVERT BY MILITARY TRIBUNALS AND UNDER MILITARY
LAW.  THE GOVERNMENT CLAIMS THAT THE TWO CLAUSES TOGETHER CONSTITUTE A
BROAD GRANT OF POWER "WITHOUT LIMITATION" AUTHORIZING CONGRESS TO
SUBJECT ALL PERSONS, CIVILIANS AND SOLDIERS ALIKE, TO MILITARY TRIAL IF
"NECESSARY AND PROPER" TO GOVERN AND REGULATE THE LAND AND NAVAL
FORCES.   IT WAS ON A SIMILAR THEORY THAT CONGRESS ONCE WENT TO THE
EXTREME OF SUBJECTING PERSONS WHO MADE CONTRACTS WITH THE MILITARY TO
COURT-MARTIAL JURISDICTION WITH RESPECT TO FRAUDS RELATED TO SUCH
CONTRACTS.  (FN39)  IN THE ONLY JUDICIAL TEST A CIRCUIT COURT HELD THAT
THE LEGISLATION WAS PATENTLY UNCONSTITUTIONAL.  EX PARTE HENDERSON, 11
FED. CAS. 1067, NO. 6,349. 

IT IS TRUE THAT THE CONSTITUTION EXPRESSLY GRANTS CONGRESS POWER TO
MAKE ALL RULES NECESSARY AND PROPER TO GOVERN AND REGULATE THOSE
PERSONS WHO ARE SERVING IN THE "LAND AND NAVAL FORCES."  BUT THE
NECESSARY AND PROPER CLAUSE CANNOT OPERATE TO EXTEND MILITARY
JURISDICTION TO ANY GROUP OF PERSONS BEYOND THAT CLASS DESCRIBED IN
CLAUSE 14 - "THE LAND AND NAVAL FORCES."  UNDER THE GRAND DESIGN OF THE
CONSTITUTION CIVILIAN COURTS ARE THE NORMAL REPOSITORIES OF POWER TO
TRY PERSONS CHARGED WITH CRIMES AGAINST THE UNITED STATES.  AND TO
PROTECT PERSONS BROUGHT BEFORE THESE COURTS, ARTICLE III AND THE FIFTH,
SIXTH, AND EIGHTH AMENDMENTS ESTABLISH THE RIGHT TO TRIAL BY JURY, TO
INDICTMENT BY A GRAND JURY AND A NUMBER OF OTHER SPECIFIC SAFEGUARDS. 
BY WAY OF CONTRAST THE JURISDICTION OF MILITARY TRIBUNALS IS A VERY
LIMITED AND EXTRAORDINARY JURISDICTION DERIVED FROM THE CRYPTIC
LANGUAGE IN ART. I, SEC. 8, AND, AT MOST, WAS INTENDED TO BE ONLY A
NARROW EXCEPTION TO THE NORMAL AND PREFERRED METHOD OF TRIAL IN COURTS
OF LAW.  (FN40)  EVERY EXTENSION OF MILITARY JURISDICTION IS AN
ENCROACHMENT ON THE JURISDICTION OF THE CIVIL COURTS, AND, MORE
IMPORTANT, ACTS AS A DEPRIVATION OF THE RIGHT TO JURY TRIAL AND OF
OTHER TREASURED CONSTITUTIONAL PROTECTIONS.  HAVING RUN UP AGAINST THE
STEADFAST BULWARK OF THE BILL OF RIGHTS, THE NECESSARY AND PROPER
CLAUSE CANNOT EXTEND THE SCOPE OF CLAUSE 14. 

NOTHING SAID HERE CONTRAVENES THE RULE LAID DOWN IN MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, AT 421, THAT: 

"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." 

IN MCCULLOCH THIS COURT WAS CONFRONTED WITH THE PROBLEM OF
DETERMINING THE SCOPE OF THE NECESSARY AND PROPER CLAUSE IN A SITUATION
WHERE NO SPECIFIC RESTRAINTS ON GOVERNMENTAL POWER STOOD IN THE WAY. 
HERE THE PROBLEM IS DIFFERENT.  NOT ONLY DOES CLAUSE 14, BY ITS TERMS,
LIMIT MILITARY JURISDICTION TO MEMBERS OF THE "LAND AND NAVAL FORCES,"
BUT ART. III, SEC. 2 AND THE FIFTH AND SIXTH AMENDMENTS REQUIRE THAT
CERTAIN EXPRESS SAFEGUARDS, WHICH WERE DESIGNED TO PROTECT PERSONS FROM
OPPRESSIVE GOVERNMENTAL PRACTICES, SHALL BE GIVEN IN CRIMINAL
PROSECUTIONS - SAFEGUARDS WHICH CANNOT BE GIVEN IN A MILITARY TRIAL. 
IN THE LIGHT OF THESE AS WELL AS OTHER CONSTITUTIONAL PROVISIONS, AND
THE HISTORICAL BACKGROUND IN WHICH THEY WERE FORMED, MILITARY TRIAL OF
CIVILIANS IS INCONSISTENT WITH BOTH THE "LETTER AND SPIRIT OF THE
CONSTITUTION." 

FURTHER LIGHT IS REFLECTED ON THE SCOPE OF CLAUSE 14 BY THE FIFTH
AMENDMENT.  THAT AMENDMENT WHICH WAS ADOPTED SHORTLY AFTER THE
CONSTITUTION READS:    "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; ...  ." 

SINCE THE EXCEPTION IN THIS AMENDMENT FOR "CASES ARISING IN THE LAND
OR NAVAL FORCES" WAS UNDOUBTEDLY DESIGNED TO CORRELATE WITH THE POWER
GRANTED CONGRESS TO PROVIDE FOR THE "GOVERNMENT AND REGULATION" OF THE
ARMED SERVICES, IT IS A PERSUASIVE AND RELIABLE INDICATION THAT THE
AUTHORITY CONFERRED BY CLAUSE 14 DOES NOT ENCOMPASS PERSONS WHO CANNOT
FAIRLY BE SAID TO BE "IN" THE MILITARY SERVICE.    EVEN IF IT WERE
POSSIBLE, WE NEED NOT ATTEMPT HERE TO PRECISELY DEFINE THE BOUNDARY
BETWEEN "CIVILIANS" AND MEMBERS OF THE "LAND AND NAVAL FORCES."  WE
RECOGNIZE THAT THERE MIGHT BE CIRCUMSTANCES WHERE A PERSON COULD BE
"IN" THE ARMED SERVICES FOR PURPOSES OF CLAUSE 14 EVEN THOUGH HE HAD
NOT FORMALLY BEEN INDUCTED INTO THE MILITARY OR DID NOT WEAR A
UNIFORM.  BUT THE WIVES, CHILDREN AND OTHER DEPENDENTS OF SERVICEMEN
CANNOT BE PLACED IN THAT CATEGORY, EVEN THOUGH THEY MAY BE ACCOMPANYING
A SERVICEMAN ABROAD AT GOVERNMENT EXPENSE AND RECEIVING OTHER BENEFITS
FROM THE GOVERNMENT.  (FN41)  WE HAVE NO DIFFICULTY IN SAYING THAT SUCH
PERSONS DO NOT LOSE THEIR CIVILIAN STATUS AND THEIR RIGHT TO A CIVILIAN
TRIAL BECAUSE THE GOVERNMENT HELPS THEM LIVE AS MEMBERS OF A SOLDIER'S
FAMILY. 

THE TRADITION OF KEEPING THE MILITARY SUBORDINATE TO CIVILIAN
AUTHORITY MAY NOT BE SO STRONG IN THE MINDS OF THIS GENERATION AS IT
WAS IN THE MINDS OF THOSE WHO WROTE THE CONSTITUTION.  THE IDEA THAT
THE RELATIVES OF SOLDIERS COULD BE DENIED A JURY TRIAL IN A COURT OF
LAW AND INSTEAD BE TRIED BY COURT-MARTIAL UNDER THE GUISE OF REGULATING
THE ARMED FORCES WOULD HAVE SEEMED INCREDIBLE TO THOSE MEN, IN WHOSE
LIFETIME THE RIGHT OF THE MILITARY TO TRY SOLDIERS FOR ANY OFFENSES IN
TIME OF PEACE HAD ONLY BEEN GRUDGINGLY CONCEDED.  (FN42)  THE FOUNDERS
ENVISIONED THE ARMY AS A NECESSARY INSTITUTION, BUT ONE DANGEROUS TO
LIBERTY IF NOT CONFINED WITHIN ITS ESSENTIAL BOUNDS.  THEIR FEARS WERE
ROOTED IN HISTORY.  THEY KNEW THAT ANCIENT REPUBLICS HAD BEEN
OVERTHROWN BY THEIR MILITARY LEADERS.  (FN43) THEY WERE FAMILIAR WITH
THE HISTORY OF SEVENTEENTH CENTURY ENGLAND, WHERE CHARLES I TRIED TO
GOVERN THROUGH THE ARMY AND WITHOUT PARLIAMENT.  DURING THIS ATTEMPT,
CONTRARY TO THE COMMON LAW, HE USED COURTS-MARTIAL TO TRY SOLDIERS FOR
CERTAIN NON-MILITARY OFFENSES.  (FN44)  THIS COURT-MARTIALING OF
SOLDIERS IN PEACETIME EVOKED STRONG PROTESTS FROM PARLIAMENT.  (FN45)
THE REIGN OF CHARLES I WAS FOLLOWED BY THE RIGOROUS MILITARY RULE OF
OLIVER CROMWELL.  LATER, JAMES II USED THE ARMY IN HIS FIGHT AGAINST
PARLIAMENT AND THE PEOPLE.  HE PROMULGATED ARTICLES OF WAR (STRANGELY
ENOUGH RELIED ON IN THE GOVERNMENT'S BRIEF) AUTHORIZING THE TRIAL OF
SOLDIERS FOR NON-MILITARY CRIMES BY COURTS-MARTIAL.  (FN46)  THIS
ACTION HASTENED THE REVOLUTION THAT BROUGHT WILLIAM AND MARY TO THE
THRONE UPON THEIR AGREEMENT TO ABIDE BY A BILL OF RIGHTS WHICH, AMONG
OTHER THINGS, PROTECTED THE RIGHT OF TRIAL BY JURY.  (FN47)  IT WAS
AGAINST THIS GENERAL BACKGROUND THAT TWO OF THE GREATEST ENGLISH
JURISTS, LORD CHIEF JUSTICE HALE AND SIR WILLIAM BLACKSTONE - MEN WHO
EXERTED CONSIDERABLE INFLUENCE ON THE FOUNDERS - EXPRESSED SHARP
HOSTILITY TO ANY EXPANSION OF THE JURISDICTION OF MILITARY COURTS.  FOR
INSTANCE, BLACKSTONE WENT SO FAR AS TO ASSERT: 

"FOR MARTIAL LAW, WHICH IS BUILT UPON NO SETTLED PRINCIPLES, BUT IS
ENTIRELY ARBITRARY IN ITS DECISION, IS, AS SIR MATTHEW HALE OBSERVES,
IN TRUTH AND REALITY NO LAW, BUT SOMETHING INDULGED RATHER THAN ALLOWED
AS A LAW.  THE NECESSITY OF ORDER AND DISCIPLINE IN AN ARMY IS THE ONLY
THING WHICH CAN GIVE IT COUNTENANCE; AND THEREFORE IT OUGHT NOT TO BE
PERMITTED IN TIME OF PEACE, WHEN THE KING'S COURTS ARE OPEN FOR ALL
PERSONS TO RECEIVE JUSTICE ACCORDING TO THE LAWS OF THE LAND."  (FN48) 

THE GENERATION THAT ADOPTED THE CONSTITUTION DID NOT DISTRUST THE
MILITARY BECAUSE OF PAST HISTORY ALONE.  WITHIN THEIR OWN LIVES THEY
HAD SEEN ROYAL GOVERNORS SOMETIMES RESORT TO MILITARY RULE.  BRITISH
TROOPS WERE QUARTERED IN BOSTON AT VARIOUS TIMES FROM 1768 UNTIL THE
OUTBREAK OF THE REVOLUTIONARY WAR TO SUPPORT UNPOPULAR ROYAL GOVERNORS
AND TO INTIMIDATE THE LOCAL POPULACE.  THE TRIAL OF SOLDIERS BY COURTS
MARTIAL AND THE INTERFERENCE OF THE MILITARY WITH THE CIVIL COURTS
AROUSED GREAT ANXIETY AND ANTAGONISM NOT ONLY IN MASSACHUSETTS BUT
THROUGHOUT THE COLONIES.  FOR EXAMPLE, SAMUEL ADAMS IN 1768 WROTE: 

"  ...  IS IT NOT ENOUGH FOR US TO HAVE SEEN SOLDIERS AND MARINERS
FOREJUDGED OF LIFE, AND EXECUTED WITHIN THE BODY OF THE COUNTY BY
MARTIAL LAW?  ARE CITIZENS TO BE CALLED UPON, THREATENED, ILL-USED AT
THE WILL OF THE SOLDIERY, AND PUT UNDER ARREST, BY PRETEXT OF THE LAW
MILITARY, IN BREACH OF THE FUNDAMENTAL RIGHTS OF SUBJECTS, AND CONTRARY
TO THE LAW AND FRANCHISE OF THE LAND?  ...  WILL THE SPIRITS OF PEOPLE
AS YET UNSUBDUED BY TYRANNY, UNAWED BY THE MENACES OF ARBITRARY POWER,
SUBMIT TO BE GOVERNED BY MILITARY FORCE?  NO]  LET US ROUSE OUR
ATTENTION TO THE COMMON LAW, - WHICH IS OUR BIRTHRIGHT, OUR GREAT
SECURITY AGAINST ALL KINDS OF INSULT AND OPPRESSION  ...  ."  (FN49) 

COLONIALS HAD ALSO SEEN THE RIGHT TO TRIAL BY JURY SUBVERTED BY ACTS
OF PARLIAMENT WHICH AUTHORIZED COURTS OF ADMIRALTY TO TRY ALLEGED
VIOLATIONS OF THE UNPOPULAR "MOLASSES" AND "NAVIGATION" ACTS.  (FN50)
THIS GAVE THE ADMIRALTY COURTS JURISDICTION OVER OFFENSES HISTORICALLY
TRIABLE ONLY BY A JURY IN A COURT OF LAW AND AROUSED GREAT RESENTMENT
THROUGHOUT THE COLONIES.  (FN51)  AS EARLY AS 1765 DELEGATES FROM NINE
COLONIES MEETING IN NEW YORK ASSERTED IN A "DECLARATION OF RIGHTS" THAT
TRIAL BY JURY WAS THE "INHERENT AND INVALUABLE" RIGHT OF EVERY CITIZEN
IN THE COLONIES.  (FN52) 

WITH THIS BACKGROUND IT IS NOT SURPRISING THAT THE DECLARATION OF
INDEPENDENCE PROTESTED THAT GEORGE III HAD "AFFECTED TO RENDER THE
MILITARY INDEPENDENT OF AND SUPERIOR TO THE CIVIL POWER" AND THAT
AMERICANS HAD BEEN DEPRIVED IN MANY CASES OF "THE BENEFITS OF TRIAL BY
JURY."  (FN53)  AND THOSE WHO ADOPTED THE CONSTITUTION EMBODIED THEIR
PROFOUND FEAR AND DISTRUST OF MILITARY POWER, AS WELL AS THEIR
DETERMINATION TO PROTECT TRIAL BY JURY, IN THE CONSTITUTION AND ITS
AMENDMENTS.  (FN54)  PERHAPS THEY WERE AWARE THAT MEMORIES FADE AND
HOPED THAT IN THIS WAY THEY COULD KEEP THE PEOPLE OF THIS NATION FROM
HAVING TO FIGHT AGAIN AND AGAIN THE SAME OLD BATTLES FOR INDIVIDUAL
FREEDOM. 

IN LIGHT OF THIS HISTORY, IT SEEMS CLEAR THAT THE FOUNDERS HAD NO
INTENTION TO PERMIT THE TRIAL OF CIVILIANS IN MILITARY COURTS, WHERE
THEY WOULD BE DENIED JURY TRIALS AND OTHER CONSTITUTIONAL PROTECTIONS,
MERELY BY GIVING CONGRESS THE POWER TO MAKE RULES WHICH WERE "NECESSARY
AND PROPER" FOR THE REGULATION OF THE "LAND AND NAVAL FORCES."  SUCH A
LATITUDINARIAN INTERPRETATION OF THESE CLAUSES WOULD BE AT WAR WITH THE
WELL-ESTABLISHED PURPOSE OF THE FOUNDERS TO KEEP THE MILITARY STRICTLY
WITHIN ITS PROPER SPHERE, SUBORDINATE TO CIVIL AUTHORITY.  THE
CONSTITUTION DOES NOT SAY THAT CONGRESS CAN REGULATE "THE LAND AND
NAVAL FORCES AND ALL OTHER PERSONS WHOSE REGULATION MIGHT HAVE SOME
RELATIONSHIP TO MAINTENANCE OF THE LAND AND NAVAL FORCES."  THERE IS NO
INDICATION THAT THE FOUNDERS CONTEMPLATED SETTING UP A RIVAL SYSTEM OF
MILITARY COURTS TO COMPETE WITH CIVILIAN COURTS FOR JURISDICTION OVER
CIVILIANS WHO MIGHT HAVE SOME CONTACT OR RELATIONSHIP WITH THE ARMED
FORCES.  COURTS-MARTIAL WERE NOT TO HAVE CONCURRENT JURISDICTION WITH
COURTS OF LAW OVER NON-MILITARY AMERICA. 

ON SEVERAL OCCASIONS THIS COURT HAS BEEN FACED WITH AN ATTEMPTED
EXPANSION OF THE JURISDICTION OF MILITARY COURTS.  EX PARTE MILLIGAN, 4
WALL.  2, ONE OF THE GREAT LANDMARKS IN THIS COURT'S HISTORY, HELD THAT
MILITARY AUTHORITIES WERE WITHOUT POWER TO TRY CIVILIANS NOT IN THE
MILITARY OR NAVAL SERVICE BY DECLARING MARTIAL LAW IN AN AREA WHERE THE
CIVIL ADMINISTRATION WAS NOT DEPOSED AND THE COURTS WERE NOT CLOSED. 
(FN55)  IN A STIRRING PASSAGE THE COURT PROCLAIMED: 

"ANOTHER GUARANTEE OF FREEDOM WAS BROKEN WHEN MILLIGAN WAS DENIED A
TRIAL BY JURY.  THE GREAT MINDS OF THE COUNTRY HAVE DIFFERED ON THE
CORRECT INTERPRETATION TO BE GIVEN TO VARIOUS PROVISIONS OF THE FEDERAL
CONSTITUTION; AND JUDICIAL DECISION HAS BEEN OFTEN INVOKED TO SETTLE
THEIR TRUE MEANING; BUT UNTIL RECENTLY NO ONE EVER DOUBTED THAT THE
RIGHT OF TRIAL BY JURY WAS FORTIFIED IN THE ORGANIC LAW AGAINST THE
POWER OF ATTACK.  IT IS NOW ASSAILED; BUT IF IDEAS CAN BE EXPRESSED IN
WORDS, AND LANGUAGE HAS ANY MEANING, THIS RIGHT - ONE OF THE MOST
VALUABLE IN A FREE COUNTRY - IS PRESERVED TO EVERYONE ACCUSED OF CRIME
WHO IS NOT ATTACHED TO THE ARMY, OR NAVY, OR MILITIA IN ACTUAL
SERVICE."  (FN56) 

IN DUNCAN V. KAHANAMOKU, 327 U.S. 304, THE COURT REASSERTED THE
PRINCIPLES ENUNCIATED IN EX PARTE MILLIGAN AND REAFFIRMED THE TRADITION
OF MILITARY SUBORDINATION TO CIVIL AUTHORITIES AND INSTITUTIONS.  IT
REFUSED TO SANCTION THE MILITARY TRIAL OF CIVILIANS IN HAWAII DURING
WARTIME DESPITE GOVERNMENT CLAIMS THAT THE NEEDS OF DEFENSE MADE
MARTIAL LAW IMPERATIVE. 

JUST LAST TERM, THIS COURT HELD IN UNITED STATES EX REL. TOTH V.
QUARLES, 350 U.S. 11, THAT MILITARY COURTS COULD NOT CONSTITUTIONALLY
TRY A DISCHARGED SERVICEMAN FOR AN OFFENSE WHICH HE HAD ALLEGEDLY
COMMITTED WHILE IN THE ARMED FORCES.  IT WAS DECIDED (1) THAT SINCE
TOTH WAS A CIVILIAN HE COULD NOT BE TRIED BY MILITARY COURT-MARTIAL,
(FN57) AND (2) THAT SINCE HE WAS CHARGED WITH MURDER, A "CRIME" IN THE
CONSTITUTIONAL SENSE, HE WAS ENTITLED TO INDICTMENT BY A GRAND JURY,
JURY TRIAL, AND THE OTHER PROTECTIONS CONTAINED IN ART. III, SEC. 2 AND
THE FIFTH, SIXTH AND EIGHTH AMENDMENTS.  THE COURT POINTED OUT THAT
TRIAL BY CIVILIAN COURTS WAS THE RULE FOR PERSONS WHO WERE NOT MEMBERS
OF THE ARMED FORCES. 

THERE ARE NO SUPPORTABLE GROUNDS UPON WHICH TO DISTINGUISH THE TOTH
CASE FROM THE PRESENT CASES.  TOTH, MRS. COVERT, AND MRS. SMITH WERE
ALL CIVILIANS.  ALL THREE WERE AMERICAN CITIZENS.  ALL THREE WERE TRIED
FOR MURDER.  ALL THREE ALLEGED CRIMES WERE COMMITTED IN A FOREIGN
COUNTRY.  THE ONLY DIFFERENCES WERE:  (1) TOTH WAS AN EX-SERVICEMAN
WHILE THEY WERE WIVES OF SOLDIERS; (2) TOTH WAS ARRESTED IN THE UNITED
STATES WHILE THEY WERE SEIZED IN FOREIGN COUNTRIES.  IF ANYTHING, TOTH
HAD CLOSER CONNECTION WITH THE MILITARY THAN THE TWO WOMEN FOR HIS
CRIME WAS COMMITTED WHILE HE WAS ACTUALLY SERVING IN THE AIR FORCE. 
MRS. COVERT AND MRS. SMITH HAD NEVER BEEN MEMBERS OF THE ARMY, HAD
NEVER BEEN EMPLOYED BY THE ARMY, HAD NEVER SERVED IN THE ARMY IN ANY
CAPACITY.  THE GOVERNMENT APPROPRIATELY ARGUED IN TOTH THAT THE
CONSTITUTIONAL BASIS FOR COURT-MARTIALING HIS WAS CLEARER THAN FOR
COURT-MARTIALING WIVES WHO ARE ACCOMPANYING THEIR HUSBANDS ABROAD. 
(FN58)  CERTAINLY TOTH'S CONDUCT AS A SOLDIER BEARS A CLOSER RELATION
TO THE MAINTENANCE OF ORDER AND DISCIPLINE IN THE ARMED FORCES THAN THE
CONDUCT OF THESE WIVES.  THE FACT THAT TOTH WAS ARRESTED HERE WHILE THE
WIVES WERE ARRESTED IN FOREIGN COUNTRIES IS MATERIAL ONLY IF
CONSTITUTIONAL SAFEGUARDS DO NOT SHIELD A CITIZEN ABROAD WHEN THE
GOVERNMENT EXERCISES ITS POWER OVER HIM.  AS WE HAVE SAID BEFORE, SUCH
A VIEW OF THE CONSTITUTION IS ERRONEOUS.  THE MERE FACT THAT THESE
WOMEN HAD GONE OVERSEAS WITH THEIR HUSBANDS SHOULD NOT REDUCE THE
PROTECTION THE CONSTITUTION GIVES THEM. 

THE MILLIGAN, DUNCAN AND TOTH CASES RECOGNIZED AND MANIFESTED THE
DEEPLY ROOTED AND ANCIENT OPPOSITION IN THIS COUNTRY TO THE EXTENSION
OF MILITARY CONTROL OVER CIVILIANS.  IN EACH INSTANCE AN EFFORT TO
EXPAND THE JURISDICTION OF MILITARY COURTS TO CIVILIANS WAS REPULSED. 

THERE HAVE BEEN A NUMBER OF DECISIONS IN THE LOWER FEDERAL COURTS
WHICH HAVE UPHELD MILITARY TRIAL OF CIVILIANS PERFORMING SERVICES FOR
THE ARMED FORCES "IN THE FIELD" DURING TIME OF WAR.  (FN59)  TO THE
EXTENT THAT THESE CASES CAN BE JUSTIFIED, INSOFAR AS THEY INVOLVED
TRIAL OF PERSONS WHO WERE NOT "MEMBERS" OF THE ARMED FORCES, THEY MUST
REST ON THE GOVERNMENT'S "WAR POWERS."  IN THE FACE OF AN ACTIVELY
HOSTILE ENEMY, MILITARY COMMANDERS NECESSARILY HAVE BROAD POWER OVER
PERSONS ON THE BATTLEFRONT.  FROM A TIME PRIOR TO THE ADOPTION OF THE
CONSTITUTION THE EXTRAORDINARY CIRCUMSTANCES PRESENT IN AN AREA OF
ACTUAL FIGHTING HAVE BEEN CONSIDERED SUFFICIENT TO PERMIT PUNISHMENT OF
SOME CIVILIANS IN THAT AREA BY MILITARY COURTS UNDER MILITARY RULES. 
(FN60)  BUT NEITHER JAPAN NOR GREAT BRITAIN COULD PROPERLY BE SAID TO
BE AN AREA WHERE ACTIVE HOSTILITIES WERE UNDER WAY AT THE TIME MRS.
SMITH AND MRS. COVERT COMMITTED THEIR OFFENSES OR AT THE TIME THEY WERE
TRIED.  (FN61) 

THE GOVERNMENT URGES THAT THE CONCEPT "IN THE FIELD" SHOULD BE
BROADENED TO REACH DEPENDENTS ACCOMPANYING THE MILITARY FORCES OVERSEAS
UNDER THE CONDITIONS OF WORLD TENSION WHICH EXIST AT THE PRESENT TIME. 
IT POINTS OUT HOW THE "WAR POWERS" INCLUDE AUTHORITY TO PREPARE
DEFENSES AND TO ESTABLISH OUR MILITARY FORCES IN DEFENSIVE POSTURE
ABOUT THE WORLD.  WHILE WE RECOGNIZE THAT THE "WAR POWERS" OF THE
CONGRESS AND THE EXECUTIVE ARE BROAD, (FN62) WE REJECT THE GOVERNMENT'S
ARGUMENT THAT PRESENT THREATS TO PEACE PERMIT MILITARY TRIAL OF
CIVILIANS ACCOMPANYING THE ARMED FORCES OVERSEAS IN AN AREA WHERE NO
ACTUAL HOSTILITIES ARE UNDER WAY.  (FN63)  THE EXIGENCIES WHICH HAVE
REQUIRED MILITARY RULE ON THE BATTLEFRONT ARE NOT PRESENT IN AREAS
WHERE NO CONFLICT EXISTS.  MILITARY TRIAL OF CIVILIANS "IN THE FIELD"
IS AN EXTRAORDINARY JURISDICTION AND IT SHOULD NOT BE EXPANDED AT THE
EXPENSE OF THE BILL OF RIGHTS.  WE AGREE WITH COLONEL WINTHROP, AN
EXPERT ON MILITARY JURISDICTION, WHO DECLARED:  "A STATUTE CANNOT BE
FRAMED BY WHICH A CIVILIAN CAN LAWFULLY BE MADE AMENABLE TO THE
MILITARY JURISDICTION IN TIME OF PEACE."  (FN64)    AS THIS COURT
STATED IN UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S. 11, THE
BUSINESS OF SOLDIERS IS TO FIGHT AND PREPARE TO FIGHT WARS, NOT TO TRY
CIVILIANS FOR THEIR ALLEGED CRIMES.  TRADITIONALLY, MILITARY JUSTICE
HAS BEEN A ROUGH FORM OF JUSTICE EMPHASIZING SUMMARY PROCEDURES, SPEEDY
CONVICTIONS AND STERN PENALTIES WITH A VIEW TO MAINTAINING OBEDIENCE
AND FIGHTING FITNESS IN THE RANKS.  BECAUSE OF ITS VERY NATURE AND
PURPOSE THE MILITARY MUST PLACE GREAT EMPHASIS ON DISCIPLINE AND
EFFICIENCY.  CORRESPONDINGLY, THERE HAS ALWAYS BEEN LESS EMPHASIS IN
THE MILITARY ON PROTECTING THE RIGHTS OF THE INDIVIDUAL THAN IN
CIVILIAN SOCIETY AND IN CIVILIAN COURTS.    COURTS-MARTIAL ARE
TYPICALLY AD HOC BODIES APPOINTED BY A MILITARY OFFICER FROM AMONG HIS
SUBORDINATES.  THEY HAVE ALWAYS BEEN SUBJECT TO VARYING DEGREES OF
"COMMAND INFLUENCE."  (FN65)  IN ESSENCE, THESE TRIBUNALS ARE SIMPLY
EXECUTIVE TRIBUNALS WHOSE PERSONNEL ARE IN THE EXECUTIVE CHAIN OF
COMMAND.  FREQUENTLY, THE MEMBERS OF THE COURT-MARTIAL MUST LOOK TO THE
APPOINTING OFFICER FOR PROMOTIONS, ADVANTAGEOUS ASSIGNMENTS AND
EFFICIENCY RATINGS - IN SHORT, FOR THEIR FUTURE PROGRESS IN THE
SERVICE.  CONCEDING TO MILITARY PERSONNEL THAT HIGH DEGREE OF HONESTY
AND SENSE OF JUSTICE WHICH NEARLY ALL OF THEM UNDOUBTEDLY HAVE, THE
MEMBERS OF A COURT-MARTIAL, IN THE NATURE OF THINGS, DO NOT AND CANNOT
HAVE THE INDEPENDENCE OF JURORS DRAWN FROM THE GENERAL PUBLIC OR OF
CIVILIAN JUDGES.  (FN66) 

WE RECOGNIZE THAT A NUMBER OF IMPROVEMENTS HAVE BEEN MADE IN MILITARY
JUSTICE RECENTLY BY ENGRAFTING MORE AND MORE OF THE METHODS OF CIVILIAN
COURTS ON COURTS-MARTIAL.  IN LARGE PART THESE AMELIORATIONS STEM FROM
THE REACTION OF CIVILIANS, WHO WERE INDUCTED DURING THE TWO WORLD WARS,
TO THEIR EXPERIENCE WITH MILITARY JUSTICE.  NOTWITHSTANDING THE RECENT
REFORMS, MILITARY TRIAL DOES NOT GIVE AN ACCUSED THE SAME PROTECTION
WHICH EXISTS IN THE CIVIL COURTS.  LOOMING FAR ABOVE ALL OTHER
DEFICIENCIES OF THE MILITARY TRIAL, OF COURSE, IS THE ABSENCE OF TRIAL
BY JURY BEFORE AN INDEPENDENT JUDGE AFTER AN INDICTMENT BY A GRAND
JURY.  MOREOVER THE REFORMS ARE MERELY STATUTORY; CONGRESS - AND
PERHAPS THE PRESIDENT - CAN REINSTATE FORMER PRACTICES, SUBJECT TO ANY
LIMITATIONS IMPOSED BY THE CONSTITUTION, WHENEVER IT DESIRES.  (FN67)
AS YET IT HAS NOT BEEN CLEARLY SETTLED TO WHAT EXTENT THE BILL OF
RIGHTS AND OTHER PROTECTIVE PARTS OF THE CONSTITUTION APPLY TO MILITARY
TRIALS.  (FN68) 

IT MUST BE EMPHASIZED THAT EVERY PERSON WHO COMES WITHIN THE
JURISDICTION OF COURTS-MARTIAL IS SUBJECT TO MILITARY LAW - LAW THAT IS
SUBSTANTIALLY DIFFERENT FROM THE LAW WHICH GOVERNS CIVILIAN SOCIETY. 
MILITARY LAW IS, IN MANY RESPECTS, HARSH LAW WHICH IS FREQUENTLY CAST
IN VERY SWEEPING AND VAGUE TERMS.  (FN69)  IT EMPHASIZES THE IRON HAND
OF DISCIPLINE MORE THAN IT DOES THE EVEN SCALES OF JUSTICE.  MOREOVER,
IT HAS NOT YET BEEN DEFINITELY ESTABLISHED TO WHAT EXTENT THE
PRESIDENT, AS COMMANDER-IN-CHIEF OF THE ARMED FORCES, OR HIS DELEGATES,
CAN PROMULGATE, SUPPLEMENT OR CHANGE SUBSTANTIVE MILITARY LAW AS WELL
AS THE PROCEDURES OF MILITARY COURTS IN TIME OF PEACE, OR IN TIME OF
WAR.  (FN70)  IN ANY EVENT, CONGRESS HAS GIVEN THE PRESIDENT BROAD
DISCRETION TO PROVIDE THE RULES GOVERNING MILITARY TRIALS.  (FN71)  FOR
EXAMPLE, IN THESE VERY CASES A TECHNICAL MANUAL ISSUED UNDER THE
PRESIDENT'S NAME WITH REGARD TO THE DEFENSE OF INSANITY IN MILITARY
TRIALS WAS OF CRITICAL IMPORTANCE IN THE CONVICTIONS OF MRS. COVERT AND
MRS. SMITH.  IF THE PRESIDENT CAN PROVIDE RULES OF SUBSTANTIVE LAW AS
WELL AS PROCEDURE, THEN HE AND HIS MILITARY SUBORDINATES EXERCISE
LEGISLATIVE, EXECUTIVE AND JUDICIAL POWERS WITH RESPECT TO THOSE
SUBJECT TO MILITARY TRIALS.  SUCH BLENDING OF FUNCTIONS IN ONE BRANCH
OF THE GOVERNMENT IS THE OBJECTIONABLE THING WHICH THE DRAFTSMEN OF THE
CONSTITUTION ENDEAVORED TO PREVENT BY PROVIDING FOR THE SEPARATION OF
GOVERNMENTAL POWERS. 

IN SUMMARY, "IT STILL REMAINS TRUE THAT MILITARY TRIBUNALS HAVE NOT
BEEN AND PROBABLY NEVER CAN BE CONSTITUTED IN SUCH WAY THAT THEY CAN
HAVE THE SAME KIND OF QUALIFICATIONS THAT THE CONSTITUTION HAS DEEMED
ESSENTIAL TO FAIR TRIALS OF CIVILIANS IN FEDERAL COURTS."  (FN72)  IN
PART THIS IS ATTRIBUTABLE TO THE INHERENT DIFFERENCES IN VALUES AND
ATTITUDES THAT SEPARATE THE MILITARY ESTABLISHMENT FROM CIVILIAN
SOCIETY.  IN THE MILITARY, BY NECESSITY, EMPHASIS MUST BE PLACED ON THE
SECURITY AND ORDER OF THE GROUP RATHER THAN ON THE VALUE AND INTEGRITY
OF THE INDIVIDUAL. 

IT IS URGED THAT THE EXPANSION OF MILITARY JURISDICTION OVER
CIVILIANS CLAIMED HERE IS ONLY SLIGHT, AND THAT THE PRACTICAL NECESSITY
FOR IT IS VERY GREAT.  (FN73)  THE ATTITUDE APPEARS TO BE THAT A SLIGHT
ENCROACHMENT ON THE BILL OF RIGHTS AND OTHER SAFEGUARDS IN THE
CONSTITUTION NEED CAUSE LITTLE CONCERN.  BUT TO HOLD THAT THESE WIVES
COULD BE TRIED BY THE MILITARY WOULD BE A TEMPTING PRECEDENT.  SLIGHT
ENCROACHMENTS CREATE NEW BOUNDARIES FROM WHICH LEGIONS OF POWER CAN
SEEK NEW TERRITORY TO CAPTURE.  "IT MAY BE THAT IT IS THE OBNOXIOUS
THING IN ITS MILDEST AND LEAST REPULSIVE FORM; BUT ILLEGITIMATE AND
UNCONSTITUTIONAL PRACTICES GET THEIR FIRST FOOTING IN THAT WAY, NAMELY,
BY SILENT APPROACHES AND SLIGHT DEVIATIONS FROM LEGAL MODES OF
PROCEDURE.  THIS CAN ONLY BE OBVIATED BY ADHERING TO THE RULE THAT
CONSTITUTIONAL PROVISIONS FOR THE SECURITY OF PERSON AND PROPERTY
SHOULD BE LIBERALLY CONSTRUED.  A CLOSE AND LITERAL CONSTRUCTION
DEPRIVES THEM OF HALF THEIR EFFICACY, AND LEADS TO GRADUAL DEPRECIATION
OF THE RIGHT, AS IF IT CONSISTED MORE IN SOUND THAN IN SUBSTANCE.  IT
IS THE DUTY OF COURTS TO BE WATCHFUL FOR THE CONSTITUTIONAL RIGHTS OF
THE CITIZEN, AND AGAINST ANY STEALTHY ENCROACHMENT THEREON."  (FN74)
MOREOVER WE CANNOT CONSIDER THIS ENCROACHMENT A SLIGHT ONE.  THROUGHOUT
HISTORY MANY TRANSGRESSIONS BY THE MILITARY HAVE BEEN CALLED "SLIGHT"
AND HAVE BEEN JUSTIFIED AS "REASONABLE" IN LIGHT OF THE "UNIQUENESS" OF
THE TIMES.  WE CANNOT CLOSE OUR EYES TO THE FACT THAT TODAY THE PEOPLES
OF MANY NATIONS ARE RULED BY THE MILITARY. 

WE SHOULD NOT BREAK FAITH WITH THIS NATION'S TRADITION OF KEEPING
MILITARY POWER SUBSERVIENT TO CIVILIAN AUTHORITY, A TRADITION WHICH WE
BELIEVE IS FIRMLY EMBODIED IN THE CONSTITUTION.  THE COUNTRY HAS
REMAINED TRUE TO THAT FAITH FOR ALMOST ONE HUNDRED SEVENTY YEARS. 
PERHAPS NO GROUP IN THE NATION HAS BEEN TRUER THAN MILITARY MEN
THEMSELVES.  UNLIKE THE SOLDIERS OF MANY OTHER NATIONS, THEY HAVE BEEN
CONTENT TO PERFORM THEIR MILITARY DUTIES IN DEFENSE OF THE NATION IN
EVERY PERIOD OF NEED AND TO PERFORM THOSE DUTIES WELL WITHOUT
ATTEMPTING TO USURP POWER WHICH IS NOT THEIRS UNDER OUR SYSTEM OF
CONSTITUTIONAL GOVERNMENT. 

OURS IS A GOVERNMENT OF DIVIDED AUTHORITY ON THE ASSUMPTION THAT IN
DIVISION THERE IS NOT ONLY STRENGTH BUT FREEDOM FROM TYRANNY.  AND
UNDER OUR CONSTITUTION COURTS OF LAW ALONE ARE GIVEN POWER TO TRY
CIVILIANS FOR THEIR OFFENSES AGAINST THE UNITED STATES.  THE PHILOSOPHY
EXPRESSED BY LORD COKE, SPEAKING LONG AGO FROM A WEALTH OF EXPERIENCE,
IS STILL TIMELY: 

"GOD SEND ME NEVER TO LIVE UNDER THE LAW OF CONVENIENCY OR
DISCRETION.  SHALL THE SOULDIER AND JUSTICE SIT ON ONE BENCH, THE
TRUMPET WILL NOT LET THE CRYER SPEAK IN WESTMINSTER-HALL."  (FN75) 

IN NO. 701, REID V. COVERT, THE JUDGMENT OF THE DISTRICT COURT
DIRECTING THAT MRS. COVERT BE RELEASED FROM CUSTODY IS AFFIRMED. 

IN NO. 713, KINSELLA V. KRUEGER, THE JUDGMENT OF THE DISTRICT COURT
IS REVERSED AND THE CASE IS REMANDED WITH INSTRUCTIONS TO ORDER MRS.
SMITH RELEASED FROM CUSTODY.  REVERSED AND REMANDED. 

FN1  50 U.S.C. SEC. 712. 

FN2  50 U.S.C. SEC. 552(11). 

FN3  MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304, 326; EX PARTE
MILLIGAN, 4 WALL.  2, 119, 136-137; GRAVES V. NEW YORK EX REL. O'KEEFE,
306 U.S. 466, 477; EX PARTE QUIRIN, 317 U.S. 1, 25. 

FN4  MARBURY V. MADISON, 1 CRANCH 137, 176-180; HAWAII V. MANKICHI,
190 U.S. 197, 236-239 (HARLAN, J., DISSENTING). 

FN5  2 CLODE, MILITARY FORCES OF THE CROWN, 175. 

FN6  CF. BARRON V. BALTIMORE, 7 PET. 243, 250. 

FN7  THIS COURT HAS CONSTANTLY REITERATED THAT THE LANGUAGE OF THE
CONSTITUTION WHERE CLEAR AND UNAMBIGUOUS MUST BE GIVEN ITS PLAIN
EVIDENT MEANING.  SEE, E.G., OGDEN V. SAUNDERS, 12 WHEAT.  213, 302
303; LAKE COUNTY V. ROLLINS, 130 U.S. 662, 670-671.  IN UNITED STATES
V. SPRAGUE, 282 U.S. 716, 731-732, THE COURT SAID: 

"THE CONSTITUTION WAS WRITTEN TO BE UNDERSTOOD BY THE VOTERS; ITS
WORDS AND PHRASES WERE USED IN THEIR NORMAL AND ORDINARY AS
DISTINGUISHED FROM TECHNICAL MEANING; WHERE THE INTENTION IS CLEAR
THERE IS NO ROOM FOR CONSTRUCTION AND NO EXCUSE FOR INTERPOLATION OR
ADDITION  ...  .  THE FACT THAT AN INSTRUMENT DRAWN WITH SUCH
METICULOUS CARE AND BY MEN WHO SO WELL UNDERSTOOD HOW TO MAKE LANGUAGE
FIT THEIR THOUGHT DOES NOT CONTAIN ANY SUCH LIMITING PHRASE  ...  IS
PERSUASIVE EVIDENCE THAT NO QUALIFICATION WAS INTENDED." 

FN8  ACCORDING TO MADISON, THE SECTION WAS INTENDED "TO PROVIDE FOR
TRIAL BY JURY OF OFFENCES COMMITTED OUT OF ANY STATE."  3 MADISON
PAPERS (GILPIN ED. 1841) 1441. 

FN9  1 STAT. 113-114.  WITH SLIGHT MODIFICATIONS THIS PROVISION IS
NOW 18 U.S.C.  SEC. 3238. 

FN10  SEE, E.G., BALZAC V. PORTO RICO, 258 U.S. 298, 312-313 (DUE
PROCESS OF LAW); DOWNES V. BIDWELL, 182 U.S. 244, 277 (FIRST AMENDMENT,
PROHIBITION AGAINST EX POST FACTO LAWS OR BILLS OF ATTAINDER); MITCHELL
V. HARMONY, 13 HOW.  115, 134 (JUST COMPENSATION CLAUSE OF THE FIFTH
AMENDMENT); BEST V. UNITED STATES, 184 F.2D 131, 138 (FOURTH
AMENDMENT); EISENTRAGER V. FORRESTAL, 84 U.S. APP. D.C. 396, 174 F.2D
961 (RIGHT TO HABEAS CORPUS), REV'D ON OTHER GROUNDS SUB NOM. JOHNSON
V. EISENTRAGER, 339 U.S. 763; TURNEY V. UNITED STATES, 126 CT. CL. 202,
115 F. SUPP. 457, 464 (JUST COMPENSATION CLAUSE OF THE FIFTH
AMENDMENT). 

FN11  SEE DORR V. UNITED STATES, 195 U.S. 138, 144-148. 

FN12  THE RIGHT TO TRIAL BY JURY IN A CRIMINAL CASE IS TWICE
GUARANTEED BY THE CONSTITUTION.  IT IS COMMON KNOWLEDGE THAT THE FEAR
THAT JURY TRIAL MIGHT BE ABOLISHED WAS ONE OF THE PRINCIPAL SOURCES OF
OBJECTION TO THE FEDERAL CONSTITUTION AND WAS AN IMPORTANT REASON FOR
THE ADOPTION OF THE BILL OF RIGHTS.  THE SIXTH AMENDMENT REAFFIRMED THE
RIGHT TO TRIAL BY JURY IN CRIMINAL CASES AND THE SEVENTH AMENDMENT
INSURED SUCH TRIAL IN CIVIL CONTROVERSIES.  SEE 2 ELLIOT'S DEBATES (2D
ED. 1836) PASSIM; 3 ID. PASSIM. 

FN13  3 BLACKSTONE'S COMMENTARIES 379.  AS TO THE IMPORTANCE OF TRIAL
BY JURY, SEE ALSO EX PARTE MILLIGAN, 4 WALL.  2, 122-123; THOMPSON V.
UTAH, 170 U.S. 343, 349-350; UNITED STATES EX REL. TOTH V. QUARLES, 350
U.S. 11, 16, 18-19; 2 KENT'S COMMENTARIES, 3-10; THE FEDERALIST, NO. 83
(HAMILTON); 2 WILSON'S WORKS (ANDREWS ED. 1896) 222. 

DE TOCQUEVILLE OBSERVED: 

"THE INSTITUTION OF THE JURY  ...  PLACES THE REAL DIRECTION OF
SOCIETY IN THE HANDS OF THE GOVERNED, OR OF A PORTION OF THE GOVERNED,
AND NOT IN THAT OF THE GOVERNMENT  ...  .  HE WHO PUNISHES THE CRIMINAL
IS  ...  THE REAL MASTER OF SOCIETY  ...  .  ALL THE SOVEREIGNS WHO
HAVE CHOSEN TO GOVERN BY THEIR OWN AUTHORITY, AND TO DIRECT SOCIETY
INSTEAD OF OBEYING ITS DIRECTIONS, HAVE DESTROYED OR ENFEEBLED THE
INSTITUTION OF THE JURY."  1 DE TOCQUEVILLE, DEMOCRACY IN AMERICA
(REEVE TRANS.  1948 ED.), 282-283. 

FN14  REV. STAT. SECS. 4083-4130 (1878). 

FN15  ID., SEC. 4086. 

FN16  SECRETARY OF STATE BLAINE REFERRED TO THESE CONSULAR POWERS AS
"GREATER THAN EVER THE ROMAN LAW CONFERRED ON THE PRO-CONSULS OF THE
EMPIRE, TO AN OFFICER WHO, UNDER THE TERMS OF THE COMMITMENT OF THIS
ASTOUNDING TRUST, IS PRACTICALLY IRRESPONSIBLE."  S. EXEC. DOC. NO. 21,
47TH CONG., 1ST SESS. 4.  SEWARD, AT A TIME WHEN HE WAS CONSUL-GENERAL,
DECLARED:  "THERE IS NO REASON, EXCEPTING THE ABSENCE OF APPROPRIATE
LEGISLATION, WHY AMERICAN CITIZENS IN CHINA, CHARGED WITH GRAVE
OFFENSES, SHOULD NOT HAVE THE PRIVILEGE OF A TRIAL BY JURY AS ELSEWHERE
THROUGHOUT THE WORLD WHERE THE INSTITUTION OF CIVILIZATION PREVAILS." 
ID., AT 7. 

FN17  IN RE ROSS, SUPRA, AT 464. 

FN18  IBID. 

FN19  SEE CASES CITED IN NOTE 10, SUPRA. 

FN20  SEE, E.G., KAWAKITA V. UNITED STATES, 343 U.S. 717; UNITED
STATES V. FLORES, 289 U.S. 137; UNITED STATES V. BOWMAN, 260 U.S. 94;
CHANDLER V. UNITED STATES, 171 F.2D 921, CERT. DENIED, 336 U.S. 918. 

FN21  70 STAT. 773. 

FN22  DOWNES V. BIDWELL, 182 U.S. 244; HAWAII V. MANKICHI, 190 U.S.
197; DORR V. UNITED STATES, 195 U.S. 138; BALZAC V. PORTO RICO, 258
U.S. 298. 

FN23  "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; ...  ." 

FN24  DOWNES V. BIDWELL, 182 U.S. 244, THE FIRST OF THE "INSULAR
CASES" WAS DECIDED OVER VIGOROUS DISSENTS FROM MR. CHIEF JUSTICE
FULLER, JOINED BY JUSTICES HARLAN, BREWER, AND PECKHAM, AND FROM MR.
JUSTICE HARLAN SEPARATELY.  THE FOUR DISSENTERS TOOK THE POSITION THAT
ALL THE RESTRAINTS OF THE BILL OF RIGHTS AND OF OTHER PARTS OF THE
CONSTITUTION WERE APPLICABLE TO THE UNITED STATES GOVERNMENT WHEREVER
IT ACTED.  THIS WAS THE POSITION WHICH THE COURT HAD CONSISTENTLY
FOLLOWED PRIOR TO THE "INSULAR CASES."  SEE, E.G., THOMPSON V. UTAH,
170 U.S. 343; CALLAN V. WILSON, 127 U.S. 540. 

FN25  AS TO THE GREAT SIGNIFICANCE OF THE RIGHT TO TRIAL BY JURY SEE
TEXT AT NOTE 13, SUPRA, AND THE AUTHORITIES REFERRED TO IN THAT NOTE. 

FN26  LATER THE COURT HELD THAT ONCE A TERRITORY BECOME
"INCORPORATED" ALL OF THE CONSTITUTIONAL PROTECTIONS BECAME
"APPLICABLE."  SEE, E.G., RASSMUSSEN V. UNITED STATES, 197 U.S. 516,
520-521. 

FN27  IT MAY BE SAID THAT IT IS DIFFICULT TO AMEND THE CONSTITUTION. 
TO SOME EXTENT THAT IS TRUE.   OBVIOUSLY THE FOUNDERS WANTED TO GUARD
AGAINST HASTY AND ILL-CONSIDERED CHANGES IN THE BASIC CHARTER OF
GOVERNMENT.  BUT IF THE NECESSITY FOR ALTERATION BECOMES PRESSING, OR
IF THE PUBLIC DEMAND BECOMES STRONG ENOUGH, THE CONSTITUTION CAN AND
HAS BEEN PROMPTLY AMENDED.  THE ELEVENTH AMENDMENT WAS RATIFIED WITHIN
LESS THAN TWO YEARS AFTER THE DECISION IN CHISHOLM V. GEORGIA, 2 DALL. 
419.  AND MORE RECENTLY THE TWENTY-FIRST AMENDMENT, REPEALING
NATIONWIDE PROHIBITION, BECAME PART OF THE CONSTITUTION WITHIN TEN
MONTHS AFTER CONGRESSIONAL ACTION.  ON THE AVERAGE IT HAS TAKEN THE
STATES LESS THAN TWO YEARS TO RATIFY EACH OF THE TWENTY-TWO AMENDMENTS
WHICH HAVE BEEN MADE TO THE CONSTITUTION.    FN28  IN 1881, SENATOR
CARPENTER, WHILE ATTACKING THE CONSULAR COURTS "AS A DISGRACE TO THIS
NATION" BECAUSE THEY DEPRIVED CITIZENS OF THE "FUNDAMENTAL AND
ESSENTIAL" RIGHTS TO INDICTMENT AND TRIAL BY JURY, DECLARED: 

"IF WE ARE TOO MEAN AS A NATION TO PAY THE EXPENSE OF OBSERVING THE
CONSTITUTION IN CHINA, THEN LET US GIVE UP OUR CONCESSIONS IN CHINA AND
COME BACK TO AS MUCH OF THE CONSTITUTION AS WE CAN AFFORD TO CARRY
OUT."  11 CONG. REC. 410. 

FN29  EXECUTIVE AGREEMENT OF JULY 27, 1942, 57 STAT. 1193.  THE
ARRANGEMENT NOW IN EFFECT IN GREAT BRITAIN AND THE OTHER NORTH ATLANTIC
TREATY ORGANIZATION NATIONS, AS WELL AS IN JAPAN, IS THE NATO STATUS OF
FORCES AGREEMENT, 4 U.S. TREATIES AND OTHER INTERNATIONAL AGREEMENTS
1792, T.I.A.S. 2846, WHICH BY ITS TERMS GIVES THE FOREIGN NATION
PRIMARY JURISDICTION TO TRY DEPENDENTS ACCOMPANYING AMERICAN SERVICEMEN
FOR OFFENSES WHICH ARE VIOLATIONS OF THE LAW OF BOTH THE FOREIGN NATION
AND THE UNITED STATES.  ART. VII, SECS. 1(B), 3(A).  THE FOREIGN NATION
HAS EXCLUSIVE CRIMINAL JURISDICTION OVER DEPENDENTS FOR OFFENSES WHICH
ONLY VIOLATE ITS LAWS.  ART. VII, SEC. 2(B).  HOWEVER, THE AGREEMENT
CONTAINS PROVISIONS WHICH REQUIRE THAT THE FOREIGN NATIONS PROVIDE
PROCEDURAL SAFEGUARDS FOR OUR NATIONALS TRIED UNDER THE TERMS OF THE
AGREEMENT IN THEIR COURTS.  ART. VII, SEC. 9.  GENERALLY, SEE NOTE, 70
HARV. L. REV. 1043. 

APART FROM THOSE PERSONS SUBJECT TO THE STATUS OF FORCES AND
COMPARABLE AGREEMENTS AND CERTAIN OTHER RESTRICTED CLASSES OF
AMERICANS, A FOREIGN NATION HAS PLENARY CRIMINAL JURISDICTION, OF
COURSE, OVER ALL AMERICANS - TOURISTS, RESIDENTS, BUSINESSMEN,
GOVERNMENT EMPLOYEES AND SO FORTH - WHO COMMIT OFFENSES AGAINST ITS
LAWS WITHIN ITS TERRITORY. 

FN30  SEE ADMINISTRATIVE AGREEMENT, 3 U.S. TREATIES AND OTHER
INTERNATIONAL AGREEMENTS 3341, T.I.A.S. 2492. 

FN31  SEE THE REFERENCES COLLECTED IN 4 FARRAND, RECORDS OF THE
FEDERAL CONVENTION (REV. ED. 1937), 123. 

FN32  SEE THE DISCUSSION IN THE VIRGINIA CONVENTION ON THE ADOPTION
OF THE CONSTITUTION, 3 ELLIOT'S DEBATES (1836 ED.)  500-519. 

FN33  E.G., UNITED STATES V. MINNESOTA, 270 U.S. 181, 207-208; HOLDEN
V. JOY, 17 WALL.  211, 242-243; THE CHEROKEE TOBACCO, 11 WALL.  616,
620-621; DOE V. BRADEN, 16 HOW.  635, 657.  CF. MARBURY V. MADISON, 1
CRANCH 137, 176-180.  WE RECOGNIZE THAT EXECUTIVE AGREEMENTS ARE
INVOLVED HERE BUT IT CANNOT BE CONTENDED THAT SUCH AN AGREEMENT RISES
TO GREATER STATURE THAN A TREATY. 

FN34  IN WHITNEY V. ROBERTSON, 124 U.S. 190, THE COURT STATED, AT P.
194:  "BY THE CONSTITUTION A TREATY IS PLACED ON THE SAME FOOTING, AND
MADE OF LIKE OBLIGATION, WITH AN ACT OF LEGISLATION.  BOTH ARE DECLARED
BY THAT INSTRUMENT TO BE THE SUPREME LAW OF THE LAND, AND NO SUPERIOR
EFFICACY IS GIVEN TO EITHER OVER THE OTHER  ...  .  IF THE TWO ARE
INCONSISTENT, THE ONE LAST IN DATE WILL CONTROL THE OTHER  ...  ." 
HEAD MONEY CASES, 112 U.S. 580; BOTILLER V. DOMINGUEZ, 130 U.S. 238;
CHAE CHAN PING V. UNITED STATES, 130 U.S. 581.  SEE CLARK V. ALLEN, 331
U.S. 503, 509-510; MOSER V. UNITED STATES, 341 U.S. 41, 45. 

FN35  SEE UNITED STATES V. DARBY, 312 U.S. 100, 124-125, AND THE
AUTHORITIES COLLECTED THERE. 

FN36  DYNES V. HOOVER, 20 HOW.  65; EX PARTE REED, 100 U.S. 13. 

FN37  SEE NOTE 7, SUPRA. 

FN38  COLONEL WINTHROP, WHO HAS BEEN CALLED THE "BLACKSTONE OF
MILITARY LAW," MADE THE FOLLOWING STATEMENT IN HIS TREATISE: 

"CAN THE POWER OF CONGRESS TO RAISE, SUPPORT, AND GOVERN THE MILITARY
FORCES BE HELD TO INCLUDE THE RAISING OR CONSTITUTING, AND THE
GOVERNING NOLENS VOLENS, IN TIME OF PEACE, AS A PART OF THE ARMY, OF A
CLASS OF PERSONS WHO ARE UNDER NO CONTRACT FOR MILITARY SERVICE,  ...
WHO RENDER NO MILITARY SERVICE, PERFORM NO MILITARY DUTY, RECEIVE NO
MILITARY PAY, BUT ARE AND REMAIN CIVILIANS IN EVERY SENSE AND FOR EVERY
CAPACITY  ...  .  IN THE OPINION OF THE AUTHOR, SUCH A RANGE OF CONTROL
IS CERTAINLY BEYOND THE POWER OF CONGRESS UNDER THE CONSTITUTION.  THE
FIFTH AMENDMENT CLEARLY DISTINGUISHES THE MILITARY FROM THE CIVIL CLASS
AS SEPARATE COMMUNITIES.  IT RECOGNIZES NO THIRD CLASS WHICH IS PART
CIVIL AND PART MILITARY  ...  AND IT CANNOT BE PERCEIVED HOW CONGRESS
CAN CREATE SUCH A CLASS, WITHOUT A DISREGARD OF THE LETTER AND SPIRIT
OF THE ORGANIC LAW."  WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED.,
REPRINT 1920), 106. 

FN39  12 STAT. 696.  FOR DEBATES SHOWING SHARP ATTACKS ON THE
CONSTITUTIONALITY OF THIS LEGISLATION SEE CONG. GLOBE, 37TH CONG., 3D
SESS. 952-958.  THE LEGISLATION WAS SUBSEQUENTLY REPEALED.  REV. STAT.
(1878 ED.)  SECS.  1342, 5596. 

FN40  AS THE GOVERNMENT POINTS OUT IN ITS BRIEF ON REHEARING: 

"THE CLAUSE GRANTING CONGRESS POWER TO MAKE RULES FOR THE GOVERNMENT
AND REGULATION OF THE LAND AND NAVAL FORCES WAS INCLUDED IN THE FINAL
DRAFT OF THE CONSTITUTION WITHOUT EITHER DISCUSSION OR DEBATE  ...  .
NEITHER THE ORIGINAL DRAFT PRESENTED TO THE CONVENTION NOR THE DRAFT
SUBMITTED BY THE 'COMMITTEE OF DETAIL' CONTAINED THE CLAUSE.  5
ELLIOT'S DEBATES 130, 379." 

FN41  MOST OF THE BENEFITS RECEIVED BY DEPENDENTS ACCOMPANYING
SERVICEMEN OVERSEAS ARE ALSO ENJOYED BY THOSE ACCOMPANYING SERVICEMEN
IN THIS COUNTRY - FOR EXAMPLE, QUARTERS, COMMISSARY PRIVILEGES, MEDICAL
BENEFITS, FREE TRANSPORTATION OF HOUSEHOLD EFFECTS AND SO FORTH. 

FN42  IN THE MUTINY ACTS, FIRST PASSED IN 1688, 1 WILL.  & MAR., C.
5, THE ENGLISH PARLIAMENT RELUCTANTLY DEPARTED FROM THE COMMON LAW, SEE
NOTE 44, INFRA, AND GRANTED THE ARMY AUTHORITY IN TIME OF PEACE TO TRY
SOLDIERS - INITIALLY FOR ONLY THE OFFENSES OF MUTINY AND DESERTION IN
TIME OF CIVIL INSURRECTION.  IN THE BEGINNING THIS LIMITED COURT
MARTIAL JURISDICTION WAS GRANTED ONLY FOR PERIODS OF FOUR MONTHS; LATER
IT WAS GRANTED FROM YEAR TO YEAR.  SEE 1 CLODE, MILITARY FORCES OF THE
CROWN, 19-21, 55-61, 76-78, 142-166, 499-501, 519-520. 

INITIALLY THE MUTINY ACTS DID NOT APPLY TO THE AMERICAN COLONIES.  IN
1713, PARLIAMENT, FOR THE FIRST TIME, AUTHORIZED THE TRIAL OF SOLDIERS
BY COURTS-MARTIAL DURING PEACETIME IN THE OVERSEAS DOMINIONS.  12 ANNE,
C. 13, SEC. 43; 1 GEO. I, C. 34.  SEE THE BRITISH WAR OFFICE, MANUAL OF
MILITARY LAW (7TH ED. 1929), 10-14.  FOR COLONIAL REACTION TO MILITARY
TRIAL OF SOLDIERS IN THIS COUNTRY IN THE PERIOD PRECEDING THE
REVOLUTION SEE TEXT AT NOTE 49 AND THE AUTHORITIES REFERRED TO THERE. 

IT WAS NOT UNTIL 1863 THAT CONGRESS FIRST AUTHORIZED THE TRIAL OF
SOLDIERS, IN WARTIME, FOR CIVIL CRIMES SUCH AS MURDER, ARSON, RAPE,
ETC., BY COURTS-MARTIAL.  12 STAT. 736.  PREVIOUSLY THE SOLDIERS HAD
BEEN TURNED OVER TO STATE AUTHORITIES FOR TRIAL IN STATE COURTS.  IN
COLEMAN V. TENNESSEE, 97 U.S. 509, THIS COURT DECLINED TO CONSTRUE THE
1863 STATUTE AS DEPRIVING CIVILIAN COURTS OF A CONCURRENT JURISDICTION
TO TRY SOLDIERS FOR CRIMES.  THE COURT SAID:  "WITH THE KNOWN HOSTILITY
OF THE AMERICAN PEOPLE TO ANY INTERFERENCE BY THE MILITARY WITH THE
REGULAR ADMINISTRATION OF JUSTICE IN THE CIVIL COURTS, NO SUCH
INTENTION SHOULD BE ASCRIBED TO CONGRESS IN THE ABSENCE OF CLEAR AND
DIRECT LANGUAGE TO THAT EFFECT."  ID., AT 514. 

FN43  WASHINGTON WARNED THAT "MERCENARY ARMIES  ...  HAVE AT ONE TIME
OR ANOTHER SUBVERTED THE LIBERTIES OF ALLMOST ALL THE COUNTRIES THEY
HAVE BEEN RAISED TO DEFEND  ...  ."  26 WRITINGS OF WASHINGTON
(FITZPATRICK ED.)  388.  MADISON IN THE FEDERALIST, NO. 41, CAUTIONED:
"THE LIBERTIES OF ROME PROVED THE FINAL VICTIM TO HER MILITARY
TRIUMPHS; AND  ...  THE LIBERTIES OF EUROPE, AS FAR AS THEY EVER
EXISTED, HAVE, WITH FEW EXCEPTIONS, BEEN THE PRICE OF HER MILITARY
ESTABLISHMENTS." 

FN44  THE COMMON LAW MADE NO DISTINCTION BETWEEN THE CRIMES OF
SOLDIERS AND THOSE OF CIVILIANS IN TIME OF PEACE.  ALL SUBJECTS WERE
TRIED ALIKE BY THE SAME CIVIL COURTS SO "IF A LIFE-GUARDSMAN DESERTED,
HE COULD ONLY BE SUED FOR BREACH OF CONTRACT, AND IF HE STRUCK HIS
OFFICER HE WAS ONLY LIABLE TO AN INDICTMENT OR AN ACTION OF BATTERY." 
2 CAMPBELL, LIVES OF THE CHIEF JUSTICES (1ST ED. 1849), 91.  IN TIME OF
WAR THE COMMON LAW RECOGNIZED AN EXCEPTION THAT PERMITTED ARMIES TO TRY
SOLDIERS "IN THE FIELD."  THE PAGES OF ENGLISH HISTORY ARE FILLED WITH
THE STRUGGLE OF THE COMMON-LAW COURTS AND PARLIAMENT AGAINST THE
JURISDICTION OF MILITARY TRIBUNALS.  SEE, FOR EXAMPLE, 8 RICHARD II, C.
5; 13 RICHARD II, CC. 2, 5; 1 HENRY IV, C. 14; 18 HENRY VI, C. 19; 3
CAR.  I, C. 1.  SEE 3 RUSHWORTH, HISTORICAL COLLECTIONS, APP. 76-81. 

DURING THE MIDDLE AGES THE COURT OF THE CONSTABLE AND MARSHAL
EXERCISED JURISDICTION OVER OFFENSES COMMITTED BY SOLDIERS IN TIME OF
WAR AND OVER CASES "OF DEATH OR MURDER COMMITTED BEYOND THE SEA." 
HALE, HISTORY AND ANALYSIS OF THE COMMON LAW OF ENGLAND (1ST ED. 1713),
37-42.  AS TIME PASSED THE JURISDICTION OF THIS COURT WAS STEADILY
NARROWED BY PARLIAMENT AND THE COMMON-LAW COURTS SO THAT LORD CHIEF
JUSTICE HALE (1609-1676) COULD WRITE THAT THE COURT "HAS BEEN LONG
DISUSED UPON GREAT REASONS."  HALE, SUPRA, 42.  AS THE COURT OF THE
CONSTABLE AND MARSHAL FELL INTO DISUSE AND DISREPUTE JURISDICTION OVER
SOLDIERS IN TIME OF WAR WAS ASSUMED BY COMMISSIONS APPOINTED BY THE
KING OR BY MILITARY COUNCILS. 

IN MOSTYN V. FABRIGAS, 1 COWP.  161, AT 176, LORD MANSFIELD OBSERVED
THAT "TRADESMEN WHO FOLLOWED THE TRAIN OF THE BRITISH ARMY AT
GIBRALTAR, WERE NOT LIABLE TO MARTIAL LAW."  (THE DISTINCTION BETWEEN
THE TERMS "MARTIAL LAW" AND "MILITARY LAW" IS OF RELATIVELY RECENT
ORIGIN.  EARLY WRITERS REFERRED TO ALL TRIALS BY MILITARY AUTHORITIES
AS "MARTIAL LAW.") 

FN45  IN 1627, THE PETITION OF RIGHT, 3 CAR.  I, C. 1 (PICKERING,
VOL. VII, P. 319, 1763) PROTESTED: 

"NEVERTHELESS OF LATE TIME DIVERS COMMISSIONS UNDER YOUR MAJESTY'S
GREAT SEAL HAVE ISSUED FORTH, BY WHICH CERTAIN PERSONS HAVE BEEN
ASSIGNED AND APPOINTED COMMISSIONERS WITH POWER AND AUTHORITY TO
PROCEED WITHIN THE LAND, ACCORDING TO THE JUSTICE OF MARTIAL LAW,
AGAINST SUCH SOLDIERS OR MARINERS, OR OTHER DISSOLUTE PERSONS JOINING
WITH THEM, AS SHOULD COMMIT ANY MURDER, ROBBERY, FELONY, MUTINY OR
OTHER OUTRAGE OR MISDEMEANOR WHATSOEVER, AND BY SUCH SUMMARY COURSE AND
ORDER AS IS AGREEABLE TO MARTIAL LAW, AND AS IS USED IN ARMIES IN TIME
OF WAR, TO PROCEED TO THE TRIAL AND CONDEMNATION OF SUCH OFFENDERS, AND
THEM TO CAUSE TO BE EXECUTED AND PUT TO DEATH ACCORDING TO THE LAW
MARTIAL: 

     *         *         *         *         * 

"YOUR MAJESTY'S SUBJECTS DO THEREFORE HUMBLY PRAY YOUR MOST EXCELLENT
MAJESTY  ...  THAT THE AFORESAID COMMISSIONS, FOR PROCEEDING BY MARTIAL
LAW, MAY BE REVOKED AND ANNULLED; AND THAT HEREAFTER NO COMMISSIONS OF
LIKE NATURE MAY ISSUE FORTH TO ANY PERSON OR PERSONS WHATSOEVER TO BE
EXECUTED AS AFORESAID, LEST BY COLOUR OF THEM ANY OF YOUR MAJESTY'S
SUBJECTS BE DESTROYED, OR PUT TO DEATH CONTRARY TO THE LAWS AND
FRANCHISE OF THE LAND."  SEE ALSO 1 CLODE, MILITARY FORCES OF THE
CROWN, 18-20, 424-425. 

FN46  THESE ARTICLES ARE SET OUT IN WINTHROP, MILITARY LAW AND
PRECEDENTS (2D ED., REPRINT 1920), 920.  JAMES II ALSO REMOVED LORD
CHIEF JUSTICE HERBERT AND SIR JOHN HOLT (LATER LORD CHIEF JUSTICE) FROM
THE BENCH FOR HOLDING THAT MILITARY TRIALS IN PEACETIME WERE ILLEGAL
AND CONTRARY TO THE LAW OF THE LAND.  SEE 2 CAMPBELL, LIVES OF THE
CHIEF JUSTICES (1ST ED. 1849), 90-93, 129. 

FN47  1 WILL.  & MAR., C. 2. 

FN48  1 BLACKSTONE'S COMMENTARIES 413.  AND HALE IN MUCH THE SAME
VEIN WROTE: 

"FIRST, THAT IN TRUTH AND REALITY MARTIAL LAW IS NOT A LAW, BUT
SOMETHING INDULGED RATHER THAN ALLOWED AS A LAW; THE NECESSITY OF
GOVERNMENT, ORDER AND DISCIPLINE IN AN ARMY, IS THAT ONLY WHICH CAN
GIVE THOSE LAWS A COUNTENANCE,  ...  . 

"SECONDLY, THIS INDULGED LAW WAS ONLY TO EXTEND TO MEMBERS OF THE
ARMY, OR TO THOSE OF THE OPPOSITE ARMY, AND NEVER WAS SO MUCH INDULGED
AS INTENDED TO BE (EXECUTED OR) EXERCISED UPON OTHERS; FOR OTHERS WHO
WERE NOT LISTED UNDER THE ARMY HAD NO COLOUR OF REASON TO BE BOUND BY
MILITARY CONSTITUTIONS, APPLICABLE ONLY TO THE ARMY; WHEREOF THEY WERE
NOT PARTS, BUT THEY WERE TO BE ORDER'D AND GOVERN'D ACCORDING TO THE
LAWS TO WHICH THEY WERE SUBJECT, THOUGH IT WERE A TIME OF WAR. 

"THIRDLY, THAT THE EXERCISE OF MARTIAL LAW, WHEREBY ANY PERSON SHOULD
LOSE HIS LIFE OR MEMBER, OR LIBERTY, MAY NOT BE PERMITTED IN TIME OF
PEACE, WHEN THE KINGS COURTS ARE OPEN FOR ALL PERSONS TO RECEIVE
JUSTICE, ACCORDING TO THE LAWS OF THE LAND."  HALE, HISTORY AND
ANALYSIS OF THE COMMON LAW OF ENGLAND (1ST ED. 1713), 40-41. 

FN49  1 WELLS, THE LIFE AND PUBLIC SERVICES OF SAMUEL ADAMS, 231. 
SEE ALSO DICKERSON, BOSTON UNDER MILITARY RULE; REPORT OF BOSTON
COMMITTEE OF CORRESPONDENCE (NOVEMBER 20, 1772), "A LIST OF
INFRINGEMENTS AND VIOLATIONS OF RIGHTS," IN MORISON, THE AMERICAN
REVOLUTION 1764-1788, 91; DECLARATION AND RESOLVES OF THE FIRST
CONTINENTAL CONGRESS IN 1 JOURNALS OF THE CONTINENTAL CONGRESS (FORD
ED.)  63-73. 

IN JUNE 1775, GENERAL GAGE, THEN ROYAL GOVERNOR OF MASSACHUSETTS
COLONY, DECLARED MARTIAL LAW IN BOSTON AND ITS ENVIRONS.  THE
CONTINENTAL CONGRESS DENOUNCED THIS EFFORT TO SUPERSEDE THE COURSE OF
THE COMMON LAW AND TO SUBSTITUTE THE LAW MARTIAL.  DECLARATION OF
CAUSES OF TAKING UP ARMS, IN 2 AMERICAN ARCHIVES, FOURTH SERIES (FORCE
ED.), 1865, 1868.    IN NOVEMBER 1775, NORFOLK, VIRGINIA, ALSO WAS
PLACED UNDER MARTIAL LAW BY THE ROYAL GOVERNOR.  THE VIRGINIA ASSEMBLY
DENOUNCED THIS IMPOSITION OF THE "MOST EXECRABLE OF ALL SYSTEMS, THE
LAW MARTIAL," AS IN "DIRECT VIOLATION OF THE CONSTITUTION, AND THE LAWS
OF THIS COUNTRY."  4 ID., 81-82. 

AND THE CONSTITUTION ADOPTED BY THE PROVINCIAL CONGRESS OF SOUTH
CAROLINA ON MARCH 26, 1776, PROTESTED:  "  ...  GOVERNORS AND OTHERS
BEARING THE ROYAL COMMISSION IN THE COLONIES HAVE  ... DISPENSED WITH
THE LAW OF THE LAND, AND SUBSTITUTED THE LAW MARTIAL IN ITS STEAD; ...
."  THORPE, THE FEDERAL AND STATE CONSTITUTIONS, 3242. 

FN50  4 GEO. III, C. 15; 8 GEO. III, C. 22.    FN51  SEE 4 BENEDICT,
AMERICAN ADMIRALTY (6TH ED. 1940), SECS. 672-704; HARPER, THE ENGLISH
NAVIGATION LAWS, 184-196; 9 JOHN ADAMS, WORKS, 318-319. 

JEFFERSON IN 1775 PROTESTED:  "PARLIAMENT HAS EXTENDED THE
JURISDICTION OF THE COURTS OF ADMIRALTY BEYOND THEIR ANTIENT LIMITS
THEREBY DEPRIVING US OF THE INESTIMABLE RIGHT OF TRIAL BY JURY IN CASES
AFFECTING BOTH LIFE AND PROPERTY AND SUBJECTING BOTH TO THE ARBITRARY
DECISION OF A SINGLE AND DEPENDENT JUDGE."  2 JOURNALS OF THE
CONTINENTAL CONGRESS (FORD ED.)  132. 

FN52  43 HARVARD CLASSICS 147, 148. 

FN53  STATE CONSTITUTIONS ADOPTED DURING THIS PERIOD GENERALLY
CONTAINED PROVISIONS PROTECTING THE RIGHT TO TRIAL BY JURY AND WARNING
AGAINST THE MILITARY.  SEE THORPE, THE FEDERAL AND STATE CONSTITUTIONS,
(DELAWARE) 569, (MARYLAND) 1688, (MASSACHUSETTS) 1891-1892, (NORTH
CAROLINA) 2787-2788, (PENNSYLVANIA) 3083, (SOUTH CAROLINA) 3257,
(VIRGINIA) 3813-3814. 

FN54  SEE ART. I, SECS. 8, 9; ART. II, SEC. 2; ART. III; AMENDMENTS
II, III, V, VI OF THE CONSTITUTION.  SEE MADISON, THE DEBATES IN THE
FEDERAL CONVENTION OF 1787, IN DOCUMENTS ILLUSTRATIVE OF THE FORMATION
OF THE UNION OF THE AMERICAN STATES, H.R. DOC. NO. 398, 69TH CONG., 1ST
SESS. 564-571, 600-602; WARREN, THE MAKING OF THE CONSTITUTION (1947
ED.), 482-484, 517-521.  THE FEDERALIST, NOS. 26, 27, 28, 41; ELLIOT'S
DEBATES (2D ED. 1836) PASSIM. 

FN55  CF. EX PARTE MERRYMAN, 17 FED. CAS. 144, NO. 9,487.  AND SEE
THE ACCOUNT OF THE TRIAL OF THEOBALD WOLFE TONE, 27 HOWELL'S STATE
TRIALS 614. 

FN56  4 WALL., AT 122-123. 

FN57  350 U.S., AT 22-23.  CF. UNITED STATES EX REL. FLANNERY V.
COMMANDING GENERAL, 69 F. SUPP. 661, REV'D BY STIPULATION IN UNREPORTED
ORDER OF THE SECOND CIRCUIT, NO. 20235, APRIL 18, 1946.  AND SEE EX
PARTE VAN VRANKEN, 47 F. 888; ANTRIM'S CASE, 5 PHILA.  278, 288; JONES
V. SEWARD, 40 BARB.  (N.Y.)  563, 569-570; SMITH V. SHAW, 12 JOHNS. 
(N.Y.)  257. 

FN58  BRIEF FOR RESPONDENT, P. 31, UNITED STATES EX REL. TOTH V.
QUARLES, 350 U.S. 11: "INDEED, WE THINK THE CONSTITUTIONAL CASE IS, IF
ANYTHING, CLEARER FOR THE COURT-MARTIAL OF TOTH, WHO WAS A SOLDIER AT
THE TIME OF HIS OFFENSE, THAN IT IS FOR A CIVILIAN ACCOMPANYING THE
ARMED FORCES." 

FN59  PERLSTEIN V. UNITED STATES, 151 F.2D 167, CERT. GRANTED, 327
U.S. 777, DISMISSED AS MOOT, 328 U.S. 822; HINES V. MIKELL, 259 F. 28;
EX PARTE JOCHEN, 257 F. 200; EX PARTE FALLS, 251 F. 415; EX PARTE
GERLACH, 247 F. 616; SHILMAN V. UNITED STATES, 73 F. SUPP.  648,
REVERSED IN PART, 164 F.2D 649, CERT. DENIED, 333 U.S. 837; IN RE
BERUE, 54 F. SUPP.  252; MCCUNE V. KILPATRICK, 53 F. SUPP. 80; IN RE DI
BARTOLO, 50 F. SUPP. 929. 

FN60  SEE, E.G., AMERICAN ARTICLES OF WAR OF 1775, ART. XXXII IN
WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED., REPRINT 1920), 953,
956. 

WE HAVE EXAMINED ALL THE CASES OF MILITARY TRIAL OF CIVILIANS BY THE
BRITISH OR AMERICAN ARMIES PRIOR TO AND CONTEMPORANEOUS WITH THE
CONSTITUTION THAT THE GOVERNMENT HAS ADVANCED OR THAT WE WERE ABLE TO
FIND BY INDEPENDENT RESEARCH.  WITHOUT EXCEPTION THESE CASES APPEAR TO
HAVE INVOLVED TRIALS DURING WARTIME IN THE AREA OF BATTLE - "IN THE
FIELD" - OR IN OCCUPIED ENEMY TERRITORY.  EVEN IN THESE AREAS THERE ARE
ONLY ISOLATED INSTANCES OF MILITARY TRIAL OF "DEPENDENTS" ACCOMPANYING
THE ARMED FORCES.  APPARENTLY THE NORMAL METHOD OF DISCIPLINING CAMP
FOLLOWERS WAS TO EXPEL THEM FROM THE CAMP OR TO TAKE AWAY THEIR RATION
PRIVILEGES. 

FN61  EXPERTS ON MILITARY LAW, THE JUDGE ADVOCATE GENERAL AND THE
ATTORNEY GENERAL HAVE REPEATEDLY TAKEN THE POSITION THAT "IN THE FIELD"
MEANS IN AN AREA OF ACTUAL FIGHTING.  SEE, E.G., WINTHROP, MILITARY LAW
AND PRECEDENTS (2D ED., REPRINT 1920), 100-102; DAVIS, MILITARY LAW (3D
ED. 1915), 478-479; DUDLEY, MILITARY LAW AND THE PROCEDURES OF COURTS
MARTIAL (2D ED. 1908), 413-414; 14 OP. ATTY. GEN. 22; 16 ID., 48; DIG. 
OP. JAG (1912) 151; ID.  (1901) 56, 563; ID. (1895) 76, 325-326, 599
600; ID. (1880) 49, 211, 384.  CF. WALKER V. CHIEF QUARANTINE OFFICER,
69 F. SUPP. 980, 987. 

ARTICLE 2(10) OF THE UCMJ, 50 U.S.C. SEC. 552(10), PROVIDES THAT IN
TIME OF WAR PERSONS SERVING WITH OR ACCOMPANYING THE ARMED FORCES IN
THE FIELD ARE SUBJECT TO COURT-MARTIAL AND MILITARY LAW.  WE BELIEVE
THAT ART. 2(10) SETS FORTH THE MAXIMUM HISTORICALLY RECOGNIZED EXTENT
OF MILITARY JURISDICTION OVER CIVILIANS UNDER THE CONCEPT OF "IN THE
FIELD."  THE GOVERNMENT DOES NOT ATTEMPT - AND QUITE APPROPRIATELY SO -
TO SUPPORT MILITARY JURISDICTION OVER MRS. SMITH OR MRS. COVERT UNDER
ART. 2(10). 

FN62  EVEN DURING TIME OF WAR THE CONSTITUTION MUST BE OBSERVED.  EX
PARTE MILLIGAN, 4 WALL.  2, AT 120, DECLARES: 

"THE CONSTITUTION OF THE UNITED STATES IS A LAW FOR RULERS AND
PEOPLE, EQUALLY IN WAR AND IN PEACE, AND COVERS WITH THE SHIELD OF ITS
PROTECTION ALL CLASSES OF MEN, AT ALL TIMES, AND UNDER ALL
CIRCUMSTANCES.  NO DOCTRINE, INVOLVING MORE PERNICIOUS CONSEQUENCES,
WAS EVER INVENTED BY THE WIT OF MAN THAN THAT ANY OF ITS PROVISIONS CAN
BE SUSPENDED DURING ANY OF THE GREAT EXIGENCIES OF GOVERNMENT." 

ALSO SEE HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146, 156;
UNITED STATES V. COMMODITIES TRADING CORP., 339 U.S. 121, 125. 

FN63  MADSEN V. KINSELLA, 343 U.S. 341, IS NOT CONTROLLING HERE.  IT
CONCERNED TRIALS IN ENEMY TERRITORY WHICH HAD BEEN CONQUERED AND HELD
BY FORCE OF ARMS AND WHICH WAS BEING GOVERNED AT THE TIME BY OUR
MILITARY FORCES.  IN SUCH AREAS THE ARMY COMMANDER CAN ESTABLISH
MILITARY OR CIVILIAN COMMISSIONS AS AN ARM OF THE OCCUPATION TO TRY
EVERYONE IN THE OCCUPIED AREA, WHETHER THEY ARE CONNECTED WITH THE ARMY
OR NOT. 

FN64  WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED., REPRINT 1920),
107. 

FN65  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
ARMED SERVICES ON S. 857 AND H.R. 4080, 81ST CONG., 1ST SESS.; BEETS V.
HUNTER, 75 F. SUPP. 825, REV'D ON OTHER GROUNDS, 180 F.2D 101, CERT.
DENIED, 339 U.S. 963; SHAPIRO V. UNITED STATES, 107 CT. CL. 650, 69 F.
SUPP. 205.  CF. KEEFFE, JAG JUSTICE IN KOREA, 6 CATHOLIC U. OF AMER. 
L. REV. 1. 

THE OFFICER WHO CONVENES THE COURT-MARTIAL ALSO HAS FINAL AUTHORITY
TO DETERMINE WHETHER CHARGES WILL BE BROUGHT IN THE FIRST PLACE AND TO
PICK THE BOARD OF INQUIRY, THE PROSECUTOR, THE DEFENSE COUNSEL, AND THE
LAW OFFICER WHO SERVES AS LEGAL ADVISER TO THE COURT-MARTIAL. 

FN66  SPEAKING OF THE IMPERATIVE NECESSITY THAT JUDGES BE
INDEPENDENT, HAMILTON DECLARED: 

"  ...  LIBERTY CAN HAVE NOTHING TO FEAR FROM THE JUDICIARY ALONE,
BUT WOULD HAVE EVERY THING TO FEAR FROM ITS UNION WITH EITHER OF THE
OTHER DEPARTMENTS; ...  NOTHING CAN CONTRIBUTE SO MUCH TO ITS FIRMNESS
AND INDEPENDENCE AS PERMANENCY IN OFFICE, THIS QUALITY MAY THEREFORE BE
JUSTLY REGARDED AS AN INDISPENSABLE INGREDIENT IN ITS CONSTITUTION,
AND, IN A GREAT MEASURE, AS THE CITADEL OF THE PUBLIC JUSTICE AND THE
PUBLIC SECURITY."  THE FEDERALIST, NO. 78. 

FN67  THE CHIEF LEGAL OFFICERS OF THE ARMED SERVICES HAVE ALREADY
RECOMMENDED TO CONGRESS THAT CERTAIN PROVISIONS OF THE UCMJ WHICH WERE
DESIGNED TO PROVIDE PROTECTION TO AN ACCUSED SHOULD BE REPEALED OR
LIMITED IN THE INTEREST OF MILITARY ORDER AND EFFICIENCY.  JOINT REPORT
OF THE UNITED STATES COURT OF MILITARY APPEALS AND THE JUDGE ADVOCATES
GENERAL OF THE ARMED FORCES AND THE GENERAL COUNSEL OF THE DEPARTMENT
OF THE TREASURY (1954).  SEE WALSH, MILITARY LAW:  RETURN TO DRUMHEAD
JUSTICE?, 42 A.B.A.J. 521. 

FN68  CF. BURNS V. WILSON, 346 U.S. 137, 146, 148, 150; NOTE, 70
HARV. L. REV. 1043, 1050-1053.  BUT SEE JACKSON V. TAYLOR, 353 U.S.
569; IN RE GRIMLEY, 137 U.S. 147, 150.  THE EXCEPTION IN THE FIFTH
AMENDMENT, OF COURSE, PROVIDES THAT GRAND JURY INDICTMENT IS NOT
REQUIRED IN CASES SUBJECT TO MILITARY TRIAL AND THIS EXCEPTION HAS BEEN
READ OVER INTO THE SIXTH AMENDMENT SO THAT THE REQUIREMENTS OF JURY
TRIAL ARE INAPPLICABLE.  EX PARTE QUIRIN, 317 U.S. 1, 40.  IN SWAIM V.
UNITED STATES, 165 U.S. 553, THIS COURT HELD THAT THE PRESIDENT OR
COMMANDING OFFICER HAD POWER TO RETURN A CASE TO A COURT-MARTIAL FOR AN
INCREASE IN SENTENCE.  IF THE DOUBLE JEOPARDY PROVISIONS OF THE FIFTH
AMENDMENT WERE APPLICABLE SUCH A PRACTICE WOULD BE UNCONSTITUTIONAL. 
CF. KEPNER V. UNITED STATES, 195 U.S. 100. 

FN69  FOR EXAMPLE, ART. 134, UCMJ, 50 U.S.C. SEC. 728 PROVIDES: 

"THOUGH NOT SPECIFICALLY MENTIONED IN THIS CODE, ALL DISORDERS AND
NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED
FORCES, ALL CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE ARMED
FORCES  ...  SHALL BE TAKEN COGNIZANCE OF  ...  AND PUNISHED AT THE
DISCRETION OF A COURT-MARTIAL." 

IN 1942 THE JUDGE ADVOCATE GENERAL RULED THAT A CIVILIAN EMPLOYEE OF
A CONTRACTOR ENGAGED IN CONSTRUCTION AT AN ARMY BASE COULD BE TRIED BY
COURT-MARTIAL UNDER THE PREDECESSOR OF ARTICLE 134 FOR ADVISING HIS
FELLOW EMPLOYEES TO SLOW DOWN AT THEIR WORK.  DIG.  OP.  JAG, 1941
SUPP., 357. 

FN70  SEE EX PARTE QUIRIN, 317 U.S. 1, 28-29; UNITED STATES V.
ELIASON, 16 PET. 291, 301; SWAIM V. UNITED STATES, 165 U.S. 553.  CF.
GENERAL ORDERS, NO. 100, OFFICIAL RECORDS, WAR OF REBELLION, SER.  III,
VOL. III, APRIL 24, 1863; 15 OP. ATTY. GEN. 297 AND NOTE ATTACHED. 

FN71  ART. 36, UCMJ, 50 U.S.C. SEC. 611. 

FN72  UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S. 11, 17. 

FN73  ACCORDING TO THE GOVERNMENT'S FIGURES ALMOST 95% OF THE
CIVILIANS TRIED ABROAD BY ARMY COURTS-MARTIAL DURING THE SIX-YEAR
PERIOD FROM 1949-1955 WERE TRIED FOR MINOR OFFENSES.  IN THIS COUNTRY
"PETTY OFFENSES" BY CIVILIANS ON MILITARY RESERVATIONS ARE TRIED BY
CIVILIAN COMMISSIONERS UNLESS THE ALLEGED OFFENDER CHOOSES TRIAL IN THE
FEDERAL DISTRICT COURT.  18 U.S.C. SEC. 3401. 

FN74  BOYD V. UNITED STATES, 116 U.S. 616, 635. 

FN75  3 RUSHWORTH, HISTORICAL COLLECTIONS, APP. 81. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THESE CASES. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT. 

THESE CASES INVOLVE THE CONSTITUTIONAL POWER OF CONGRESS TO PROVIDE
FOR TRIAL OF CIVILIAN DEPENDENTS ACCOMPANYING MEMBERS OF THE ARMED
FORCES ABROAD BY COURT-MARTIAL IN CAPITAL CASES.  THE NORMAL METHOD OF
TRIAL OF FEDERAL OFFENSES UNDER THE CONSTITUTION IS IN A CIVILIAN
TRIBUNAL.  TRIAL OF OFFENSES BY WAY OF COURT-MARTIAL, WITH ALL THE
CHARACTERISTICS OF ITS PROCEDURE SO DIFFERENT FROM THE FORMS AND
SAFEGUARDS OF PROCEDURE IN THE CONVENTIONAL COURTS, IS AN EXERCISE OF
EXCEPTIONAL JURISDICTION, ARISING FROM THE POWER GRANTED TO CONGRESS IN
ART. I, SEC. 8, CL. 14, OF THE CONSTITUTION OF THE UNITED STATES "TO
MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL
FORCES."  DYNES V. HOOVER, 20 HOW.  65; SEE TOTH V. QUARLES, 350 U.S.
11; WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED. 1896), 52.  ARTICLE
2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT.  107, 109, 50
U.S.C. SEC. 552(11), AND ITS PREDECESSORS WERE PASSED AS AN EXERCISE OF
THAT POWER, AND THE AGREEMENTS WITH ENGLAND AND JAPAN RECOGNIZED THAT
THE JURISDICTION TO BE EXERCISED UNDER THOSE AGREEMENTS WAS BASED ON
THE RELATION OF THE PERSONS INVOLVED TO THE MILITARY FORCES.  SEE THE
AGREEMENT WITH GREAT BRITAIN, 57 STAT. 1193, E.A.S.  NO. 355, AND THE
UNITED STATES OF AMERICA (VISITING FORCES) ACT, 1942, 5 & 6 GEO. VI, C.
31; AND THE 1952 ADMINISTRATIVE AGREEMENT WITH JAPAN, 3 U.S. TREATIES
AND OTHER INTERNATIONAL AGREEMENTS 3341, T.I.A.S. 2492. 

TRIAL BY COURT-MARTIAL IS CONSTITUTIONALLY PERMISSIBLE ONLY FOR
PERSONS WHO CAN, ON A FAIR APPRAISAL, BE REGARDED AS FALLING WITHIN THE
AUTHORITY GIVEN TO CONGRESS UNDER ARTICLE I TO REGULATE THE "LAND AND
NAVAL FORCES," AND WHO THEREFORE ARE NOT PROTECTED BY SPECIFIC
PROVISIONS OF ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS.  IT IS OF
COURSE TRUE THAT, AT LEAST REGARDING THE RIGHT TO A GRAND JURY
INDICTMENT, THE FIFTH AMENDMENT IS NOT UNMINDFUL OF THE DEMANDS OF
MILITARY DISCIPLINE.   (FN1)  WITHIN THE SCOPE OF APPROPRIATE
CONSTRUCTION, THE PHRASE "EXCEPT IN CASES ARISING IN THE LAND AND NAVAL
FORCES" HAS BEEN ASSUMED ALSO TO MODIFY THE GUARANTIES OF SPEEDY AND
PUBLIC TRIAL BY JURY.  AND SO, THE PROBLEM BEFORE US IS NOT TO BE
ANSWERED BY RECOURSE TO THE LITERAL WORDS OF THIS EXCEPTION.  THE CASES
CANNOT BE DECIDED SIMPLY BY SAYING THAT, SINCE THESE WOMEN WERE NOT IN
UNIFORM, THEY WERE NOT "IN THE LAND AND NAVAL FORCES."  THE COURT'S
FUNCTION IN CONSTITUTIONAL ADJUDICATIONS IS NOT EXHAUSTED BY A LITERAL
READING OF WORDS.  IT MAY BE TIRESOME, BUT IT IS NONETHELESS VITAL, TO
KEEP OUR JUDICIAL MINDS FIXED ON THE INJUNCTION THAT "IT IS A
CONSTITUTION WE ARE EXPOUNDING."  M'CULLOCH V. MARYLAND, 4 WHEAT.  316,
407.  ALTHOUGH WINTHROP, IN HIS TREATISE, STATES THAT THE CONSTITUTION
"CLEARLY DISTINGUISHES THE MILITARY FROM THE CIVIL CLASS AS SEPARATE
COMMUNITIES" AND "RECOGNIZES NO THIRD CLASS WHICH IS PART CIVIL AND
PART MILITARY - MILITARY FOR A PARTICULAR PURPOSE OR IN A PARTICULAR
SITUATION, AND CIVIL FOR ALL OTHER PURPOSES AND IN ALL OTHER SITUATIONS
...  ," WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED. 1896), 145, THIS
COURT, APPLYING APPROPRIATE METHODS OF CONSTITUTIONAL INTERPRETATION,
HAS LONG HELD, AND IN A VARIETY OF SITUATIONS, THAT IN THE EXERCISE OF
A POWER SPECIFICALLY GRANTED TO IT, CONGRESS MAY SWEEP IN WHAT MAY BE
NECESSARY TO MAKE EFFECTIVE THE EXPLICITLY WORDED POWER.  SEE JACOB
RUPPERT V. CAFFEY, 251 U.S. 264, ESPECIALLY 289 ET SEQ.; PURITY EXTRACT
CO. V. LYNCH, 226 U.S. 192, 201; RAILROAD COMMISSION V. CHICAGO,
BURLINGTON & QUINCY R. CO., 257 U.S. 563, 588.  THIS IS THE
SIGNIFICANCE OF THE NECESSARY AND PROPER CLAUSE, WHICH IS NOT TO BE
CONSIDERED SO MUCH A SEPARATE CLAUSE IN ART. I, SEC. 8, AS AN INTEGRAL
PART OF EACH OF THE PRECEDING 17 CLAUSES.  ONLY THUS MAY BE AVOIDED A
STRANGLING LITERALNESS IN CONSTRUING A DOCUMENT THAT IS NOT AN
ENUMERATION OF STATIC RULES BUT THE LIVING FRAMEWORK OF GOVERNMENT
DESIGNED FOR AN UNDEFINED FUTURE.  M'CULLOCH V. MARYLAND, 4 WHEAT. 
316; HURTADO V. CALIFORNIA, 110 U.S. 516, 530-531. 

EVERYTHING THAT MAY BE DEEMED, AS THE EXERCISE OF AN ALLOWABLE
JUDGMENT BY CONGRESS, TO FALL FAIRLY WITHIN THE CONCEPTION CONVEYED BY
THE POWER GIVEN TO CONGRESS "TO MAKE RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES" IS CONSTITUTIONALLY WITHIN
THAT LEGISLATIVE GRANT AND NOT SUBJECT TO REVISION BY THE INDEPENDENT
JUDGMENT OF THE COURT.  TO BE SURE, EVERY EVENT OR TRANSACTION THAT
BEARS SOME RELATION TO "THE LAND AND NAVAL FORCES" DOES NOT IPSO FACTO
COME WITHIN THE TOLERANT CONCEPTION OF THAT LEGISLATIVE GRANT.  THE
ISSUE IN THESE CASES INVOLVES REGARD FOR CONSIDERATIONS NOT DISSIMILAR
TO THOSE INVOLVED IN A DETERMINATION UNDER THE DUE PROCESS CLAUSE. 
OBVIOUSLY, THE PRACTICAL SITUATIONS BEFORE US BEAR SOME RELATION TO THE
MILITARY.  YET THE QUESTION FOR THIS COURT IS NOT MERELY WHETHER THE
RELATION OF THESE WOMEN TO THE "LAND AND NAVAL FORCES" IS SUFFICIENTLY
CLOSE TO PRECLUDE THE NECESSITY OF FINDING THAT CONGRESS HAS BEEN
ARBITRARY IN ITS SELECTION OF A PARTICULAR METHOD OF TRIAL.  FOR,
ALTHOUGH WE MUST LOOK TO ART. I, SEC. 8, CL. 14, AS THE IMMEDIATE
JUSTIFYING POWER, IT IS NOT THE ONLY CLAUSE OF THE CONSTITUTION TO BE
TAKEN INTO ACCOUNT.  THE CONSTITUTION IS AN ORGANIC SCHEME OF
GOVERNMENT TO BE DEALT WITH AS AN ENTIRETY.  A PARTICULAR PROVISION
CANNOT BE DISSEVERED FROM THE REST OF THE CONSTITUTION.  OUR CONCLUSION
IN THESE CASES THEREFORE MUST TAKE DUE ACCOUNT OF ARTICLE III AND THE
FIFTH AND SIXTH AMENDMENTS.  WE MUST WEIGH ALL THE FACTORS INVOLVED IN
THESE CASES IN ORDER TO DECIDE WHETHER THESE WOMEN DEPENDENTS ARE SO
CLOSELY RELATED TO WHAT CONGRESS MAY ALLOWABLY DEEM ESSENTIAL FOR THE
EFFECTIVE "GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES" THAT
THEY MAY BE SUBJECTED TO COURT-MARTIAL JURISDICTION IN THESE CAPITAL
CASES, WHEN THE CONSEQUENCE IS LOSS OF THE PROTECTIONS AFFORDED BY
ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS. 

WE ARE NOT CONCERNED HERE EVEN WITH THE POSSIBILITY OF SOME
ALTERNATIVE NON-MILITARY TYPE OF TRIAL THAT DOES NOT CONTAIN ALL THE
SAFEGUARDS OF ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS.  WE MUST
JUDGE ONLY WHAT HAS BEEN ENACTED AND WHAT IS AT ISSUE.  IT IS THE POWER
ACTUALLY ASSERTED BY CONGRESS UNDER ART. I, SEC. 8, CL. 14, THAT MUST
NOW BE ADJUDGED IN THE LIGHT OF ARTICLE III AND THE FIFTH AND SIXTH
AMENDMENTS.  IN MAKING THIS ADJUDICATION, I MUST EMPHASIZE THAT IT IS
ONLY THE TRIAL OF CIVILIAN DEPENDENTS IN A CAPITAL CASE IN TIME OF
PEACE THAT IS IN QUESTION.  THE COURT HAS NOT BEFORE IT, AND THEREFORE
I NEED NOT INTIMATE ANY OPINION ON, SITUATIONS INVOLVING CIVILIANS, IN
THE SENSE OF PERSONS NOT HAVING A MILITARY STATUS, OTHER THAN
DEPENDENTS.  NOR DO WE HAVE BEFORE US A CASE INVOLVING A NON-CAPITAL
CRIME.  THIS NARROW DELINEATION OF THE ISSUE IS MERELY TO RESPECT THE
IMPORTANT RESTRICTIONS BINDING ON THE COURT WHEN PASSING ON THE
CONSTITUTIONALITY OF AN ACT OF CONGRESS.  "IN THE EXERCISE OF THAT
JURISDICTION, IT IS BOUND BY TWO RULES, TO WHICH IT HAS RIGIDLY
ADHERED, ONE, NEVER TO ANTICIPATE A QUESTION OF CONSTITUTIONAL LAW IN
ADVANCE OF THE NECESSITY OF DECIDING IT; THE OTHER NEVER TO FORMULATE A
RULE OF CONSTITUTIONAL LAW BROADER THAN IS REQUIRED BY THE PRECISE
FACTS TO WHICH IT IS TO BE APPLIED.  THESE RULES ARE SAFE GUIDES TO
SOUND JUDGMENT.  IT IS THE DICTATE OF WISDOM TO FOLLOW THEM CLOSELY AND
CAREFULLY."  STEAMSHIP CO. V. EMIGRATION COMMISSIONERS, 113 U.S. 33,
39. 

WE ARE ALSO NOT CONCERNED HERE WITH THE SUBSTANTIVE ASPECTS OF THE
GRANT OF POWER TO CONGRESS TO "MAKE RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES."  WHAT CONDUCT SHOULD BE
PUNISHED AND WHAT CONSTITUTES A CAPITAL CASE ARE MATTERS FOR
CONGRESSIONAL DISCRETION, ALWAYS SUBJECT OF COURSE TO ANY SPECIFIC
RESTRICTIONS OF THE CONSTITUTION.  THESE CASES INVOLVE THE VALIDITY OF
PROCEDURAL CONDITIONS FOR DETERMINING THE COMMISSION OF A CRIME IN FACT
PUNISHABLE BY DEATH.  THE TAKING OF LIFE IS IRREVOCABLE.  IT IS IN
CAPITAL CASES ESPECIALLY THAT THE BALANCE OF CONFLICTING INTERESTS MUST
BE WEIGHTED MOST HEAVILY IN FAVOR OF THE PROCEDURAL SAFEGUARDS OF THE
BILL OF RIGHTS.  THUS, IN POWELL V. ALABAMA, 287 U.S. 45, 71, THE FACT
"ABOVE ALL THAT THEY STOOD IN DEADLY PERIL OF THEIR LIVES" LED THE
COURT TO CONCLUDE THAT THE DEFENDANTS HAD BEEN DENIED DUE PROCESS BY
THE FAILURE TO ALLOW THEM REASONABLE TIME TO SEEK COUNSEL AND THE
FAILURE TO APPOINT COUNSEL.  I REPEAT.  I DO NOT MEAN TO IMPLY THAT THE
CONSIDERATIONS THAT ARE CONTROLLING IN CAPITAL CASES INVOLVING CIVILIAN
DEPENDENTS ARE CONSTITUTIONALLY IRRELEVANT IN CAPITAL CASES INVOLVING
CIVILIANS OTHER THAN DEPENDENTS OR IN NON-CAPITAL CASES INVOLVING
DEPENDENTS OR OTHER CIVILIANS.  I DO SAY THAT WE ARE DEALING HERE ONLY
WITH CAPITAL CASES AND CIVILIAN DEPENDENTS. 

THE GOVERNMENT ASSERTS THAT CIVILIAN DEPENDENTS ARE AN INTEGRAL PART
OF OUR ARMED FORCES OVERSEAS AND THAT THERE IS SUBSTANTIAL MILITARY
NECESSITY FOR SUBJECTING THEM TO COURT-MARTIAL JURISDICTION.  THE
GOVERNMENT POINTS OUT THAT CIVILIAN DEPENDENTS GO ABROAD UNDER MILITARY
AUSPICES, LIVE WITH MILITARY PERSONNEL IN A MILITARY COMMUNITY, ENJOY
THE PRIVILEGES OF MILITARY FACILITIES, AND THAT THEIR CONDUCT
INEVITABLY TENDS TO INFLUENCE MILITARY DISCIPLINE. 

THE PROSECUTION BY COURT-MARTIAL FOR CAPITAL CRIMES COMMITTED BY
CIVILIAN DEPENDENTS OF MEMBERS OF THE ARMED FORCES ABROAD IS HARDLY TO
BE DEEMED, UNDER MODERN CONDITIONS, OBVIOUSLY APPROPRIATE TO THE
EFFECTIVE EXERCISE OF THE POWER TO "MAKE RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES" WHEN IT IS A QUESTION OF
DECIDING WHAT POWER IS GRANTED UNDER ARTICLE I AND THEREFORE WHAT
RESTRICTION IS MADE ON ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS. 
I DO NOT THINK THAT THE PROXIMITY, PHYSICAL AND SOCIAL, OF THESE WOMEN
TO THE "LAND AND NAVAL FORCES" IS, WITH DUE REGARD TO ALL THAT HAS BEEN
PUT BEFORE US, SO CLEARLY DEMANDED BY THE EFFECTIVE "GOVERNMENT AND
REGULATION" OF THOSE FORCES AS REASONABLY TO DEMONSTRATE A
JUSTIFICATION FOR COURT-MARTIAL JURISDICTION OVER CAPITAL OFFENSES. 

THE GOVERNMENT SPEAKS OF THE "GREAT POTENTIAL IMPACT ON MILITARY
DISCIPLINE" OF THESE ACCOMPANYING CIVILIAN DEPENDENTS.  THIS CANNOT BE
DENIED, NOR SHOULD ITS IMPLICATIONS BE MINIMIZED.  BUT THE NOTION THAT
DISCIPLINE OVER MILITARY PERSONNEL IS TO BE FURTHERED BY SUBJECTING
THEIR CIVILIAN DEPENDENTS TO THE THREAT OF CAPITAL PUNISHMENT IMPOSED
BY COURT-MARTIAL IS TOO HOSTILE TO THE REASONS THAT UNDERLIE THE
PROCEDURAL SAFEGUARDS OF THE BILL OF RIGHTS FOR THOSE SAFEGUARDS TO BE
DISPLACED.  IT IS TRUE THAT MILITARY DISCIPLINE MIGHT BE AFFECTED
SERIOUSLY IF CIVILIAN DEPENDENTS COULD COMMIT MURDERS AND OTHER CAPITAL
CRIMES WITH IMPUNITY.  NO ONE, HOWEVER, CHALLENGES THE AVAILABILITY TO
CONGRESS OF A POWER TO PROVIDE FOR TRIAL AND PUNISHMENT OF THESE
DEPENDENTS FOR SUCH CRIMES.  (FN2)  THE METHOD OF TRIAL ALONE IS IN
ISSUE.  THE GOVERNMENT SUGGESTS THAT, IF TRIAL IN AN ARTICLE III COURT
SUBJECT TO THE RESTRICTIONS OF THE FIFTH AND SIXTH AMENDMENTS IS THE
ONLY ALTERNATIVE, SUCH A TRIAL COULD NOT BE HELD ABROAD PRACTICABLY,
AND IT WOULD OFTEN BE EQUALLY IMPRACTICABLE TO TRANSPORT ALL THE
WITNESSES BACK TO THE UNITED STATES FOR TRIAL.  BUT, ALTHOUGH THERE IS
NO NEED TO PASS ON THAT ISSUE IN THIS CASE, TRIAL IN THE UNITED STATES
IS OBVIOUSLY NOT THE ONLY PRACTICAL ALTERNATIVE AND OTHER ALTERNATIVES
MAY RAISE DIFFERENT CONSTITUTIONAL QUESTIONS.  THE GOVERNMENT'S OWN
FIGURES FOR THE ARMY SHOW THAT THE TOTAL NUMBER OF CIVILIANS (ALL
CIVILIANS "SERVING WITH, EMPLOYED BY, OR ACCOMPANYING THE ARMED FORCES"
OVERSEAS AND NOT MERELY CIVILIAN DEPENDENTS) FOR WHOM GENERAL COURTS
MARTIAL FOR ALLEGED MURDER WERE DEEMED ADVISABLE (FN3) WAS ONLY 13 IN
THE 7 FISCAL YEARS, 1950-1956.  IT IS IMPOSSIBLE TO ASCERTAIN FROM THE
FIGURES SUPPLIED TO US EXACTLY HOW MANY PERSONS WERE TRIED FOR OTHER
CAPITAL OFFENSES, BUT THE FIGURES INDICATE THAT THERE COULD NOT HAVE
BEEN MANY.  THERE IS NOTHING TO INDICATE THAT THE FIGURES FOR THE OTHER
SERVICES ARE MORE SUBSTANTIAL.  IT THUS APPEARS TO BE A MANAGEABLE
PROBLEM WITHIN THE PROCEDURAL RESTRICTIONS FOUND NECESSARY BY THIS
OPINION. 

A FURTHER ARGUMENT IS MADE THAT A DECISION ADVERSE TO THE GOVERNMENT
WOULD MEAN THAT ONLY A FOREIGN TRIAL COULD BE HAD.  EVEN ASSUMING THAT
THE NATO STATUS OF FORCES AGREEMENT, 4 U.S. TREATIES AND OTHER
INTERNATIONAL AGREEMENTS 1792, T.I.A.S. 2846, COVERING COUNTRIES WHERE
A LARGE PART OF OUR ARMED FORCES ARE STATIONED, GIVES JURISDICTION TO
THE UNITED STATES ONLY THROUGH ITS MILITARY AUTHORITIES, THIS COURT
CANNOT SPECULATE THAT ANY GIVEN NATION WOULD BE UNWILLING TO GRANT OR
CONTINUE SUCH EXTRATERRITORIAL JURISDICTION OVER CIVILIAN DEPENDENTS IN
CAPITAL CASES IF THEY WERE TO BE TRIED BY SOME OTHER MANNER THAN COURT
MARTIAL.  AND, EVEN IF SUCH WERE THE CASE, THESE CIVILIAN DEPENDENTS
WOULD THEN MERELY BE IN THE SAME POSITION AS ARE SO MANY FEDERAL
EMPLOYEES AND THEIR DEPENDENTS AND OTHER UNITED STATES CITIZENS WHO ARE
SUBJECT TO THE LAWS OF FOREIGN NATIONS WHEN RESIDING THERE.  (FN4)  SEE
ALSO THE NATO STATUS OF FORCES AGREEMENT, SUPRA, ART. VII, SECS. 2, 3. 

THE GOVERNMENT MAKES THE FINAL ARGUMENT THAT THESE CIVILIAN
DEPENDENTS ARE PART OF THE UNITED STATES MILITARY CONTINGENT ABROAD IN
THE EYES OF THE FOREIGN NATIONS CONCERNED AND THAT THEIR CONDUCT MAY
HAVE A PROFOUND EFFECT ON OUR RELATIONS WITH THESE COUNTRIES, WITH A
CONSEQUENT EFFECT ON THE MILITARY ESTABLISHMENT THERE.  BUT THE
ARGUMENT THAT MILITARY COURTS-MARTIAL IN CAPITAL CASES ARE NECESSITATED
BY THIS FACTOR ASSUMES EITHER THAT A MILITARY COURT-MARTIAL CONSTITUTES
A STRONGER DETERRENT TO THIS SORT OF CONDUCT OR THAT, IN THE ABSENCE OF
SUCH A TRIAL, NO PUNISHMENT WOULD BE METED OUT AND OUR FOREIGN POLICY
THEREBY INJURED.  THE REASONS WHY THESE CONSIDERATIONS CARRY NO
CONVICTION HAVE ALREADY BEEN INDICATED. 

I THEREFORE CONCLUDE THAT, IN CAPITAL CASES, THE EXERCISE OF COURT
MARTIAL JURISDICTION OVER CIVILIAN DEPENDENTS IN TIME OF PEACE CANNOT
BE JUSTIFIED BY ARTICLE I, CONSIDERED IN CONNECTION WITH THE SPECIFIC
PROTECTIONS OF ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS. 

SINCE THE CONCLUSION THUS REACHED DIFFERS FROM WHAT THE COURT DECIDED
LAST TERM, A DECENT RESPECT FOR THE JUDICIAL PROCESS CALLS FOR RE
EXAMINATION OF THE TWO GROUNDS THAT THEN PREVAILED.  THE COURT
SUSTAINED ITS ACTION ON THE AUTHORITY OF THE CASES DEALING WITH THE
POWER OF CONGRESS TO "MAKE ALL NEEDFUL RULES AND REGULATIONS" FOR THE
TERRITORIES, REINFORCED BY IN RE ROSS, 140 U.S. 453, IN WHICH THIS
COURT, IN 1891, SUSTAINED THE CRIMINAL JURISDICTION OF A CONSULAR COURT
IN JAPAN.  (FN5)  THESE AUTHORITIES GREW OUT OF, AND RELATED TO,
SPECIFIC SITUATIONS VERY DIFFERENT FROM THOSE NOW HERE.  THEY DO NOT
CONTROL OR EVEN EMBARRASS THE PROBLEM BEFORE US. 

LEGAL DOCTRINES ARE NOT SELF-GENERATED ABSTRACT CATEGORIES.  THEY DO
NOT FALL FROM THE SKY; NOR ARE THEY PULLED OUT OF IT.  THEY HAVE A
SPECIFIC JURIDICAL ORIGIN AND ETIOLOGY.  THEY DERIVE MEANING AND
CONTENT FROM THE CIRCUMSTANCES THAT GAVE RISE TO THEM AND FROM THE
PURPOSES THEY WERE DESIGNED TO SERVE.  TO THESE THEY ARE BOUND AS IS A
LIVE TREE TO ITS ROOTS.  DOCTRINES LIKE THOSE EXPRESSED BY THE ROSS
CASE AND THE SERIES OF CASES BEGINNING WITH AMERICAN INSURANCE CO. V.
CANTER, 1 PET. 511, MUST BE PLACED IN THEIR HISTORICAL SETTING.  THEY
CANNOT BE WRENCHED FROM IT AND MECHANICALLY TRANSPLANTED INTO AN ALIEN,
UNRELATED CONTEXT WITHOUT SUFFERING MUTILATION OR DISTORTION.  "IF A
PRECEDENT INVOLVING A BLACK HORSE IS APPLIED TO A CASE INVOLVING A
WHITE HORSE, WE ARE NOT EXCITED.  IF IT WERE AN ELEPHANT OR AN ANIMAL
FERAE NATURAE OR A CHOSE IN ACTION, THEN WE WOULD VENTURE INTO
THOUGHT.  THE DIFFERENCE MIGHT MAKE A DIFFERENCE.  WE REALLY ARE
CONCERNED ABOUT PRECEDENTS CHIEFLY WHEN THEIR FACTS DIFFER SOMEWHAT
FROM THE FACTS IN THE CASE AT BAR.  THEN THERE IS A GULF OR HIATUS THAT
HAS TO BE BRIDGED BY A CONCERN FOR PRINCIPLE AND A CONCERN FOR
PRACTICAL RESULTS AND PRACTICAL WISDOM."  THOMAS REED POWELL, VAGARIES
AND VARIETIES IN CONSTITUTIONAL INTERPRETATION, 36.  THIS ATTITUDE
TOWARD PRECEDENT UNDERLIES THE WHOLE SYSTEM OF OUR CASE LAW.  IT WAS
THUS SUMMARIZED BY MR. JUSTICE BRANDEIS:  "IT IS A PECULIAR VIRTUE OF
OUR SYSTEM OF LAW THAT THE PROCESS OF INCLUSION AND EXCLUSION, SO OFTEN
EMPLOYED IN DEVELOPING A RULE, IS NOT ALLOWED TO END WITH ITS
ENUNCIATION AND THAT AN EXPRESSION IN AN OPINION YIELDS LATER TO THE
IMPACT OF FACTS UNFORESEEN."  JAYBIRD MINING CO. V. WEIR, 271 U.S. 609,
619 (DISSENTING).  ESPECIALLY IS THIS ATTITUDE TO BE OBSERVED IN
CONSTITUTIONAL CONTROVERSIES. 

THE TERRITORIAL CASES RELIED ON BY THE COURT LAST TERM HELD THAT
CERTAIN SPECIFIC CONSTITUTIONAL RESTRICTIONS ON THE GOVERNMENT DID NOT
AUTOMATICALLY APPLY IN THE ACQUIRED TERRITORIES OF FLORIDA, HAWAII, THE
PHILIPPINES, OR PUERTO RICO.  IN THESE CASES, THE COURT DREW ITS
DECISIONS FROM THE POWER OF CONGRESS TO "MAKE ALL NEEDFUL RULES AND
REGULATIONS RESPECTING THE TERRITORY  ... BELONGING TO THE UNITED
STATES," FOR WHICH PROVISION IS MADE IN ART. IV, SEC. 3.  THE UNITED
STATES FROM TIME TO TIME ACQUIRED LANDS IN WHICH MANY OF OUR LAWS AND
CUSTOMS FOUND AN UNCONGENIAL SOIL BECAUSE THEY ILL ACCORDED WITH THE
HISTORY AND HABITS OF THEIR PEOPLE.  MINDFUL OF ALL RELEVANT PROVISIONS
OF THE CONSTITUTION AND NOT ALLOWING ONE TO FRUSTRATE ANOTHER - WHICH
IS THE GUIDING THOUGHT OF THIS OPINION - THE COURT FOUND IT NECESSARY
TO READ ART. IV, SEC. 3, TOGETHER WITH THE FIFTH AND SIXTH AMENDMENTS
AND ARTICLE III IN THE LIGHT OF THOSE CIRCUMSTANCES.  THE QUESTION
AROSE MOST FREQUENTLY WITH RESPECT TO THE ESTABLISHMENT OF TRIAL BY
JURY IN POSSESSIONS IN WHICH SUCH A SYSTEM WAS WHOLLY WITHOUT
ANTECEDENTS.  THE COURT CONSISTENTLY HELD WITH RESPECT TO SUCH
"TERRITORY" THAT CONGRESSIONAL POWER UNDER ART. IV, SEC. 3, WAS NOT
RESTRICTED BY THE REQUIREMENT OF ART. III, SEC. 2, CL. 3, AND THE SIXTH
AMENDMENT OF PROVIDING TRIAL BY JURY. 

"IF THE RIGHT TO TRIAL BY JURY WERE A FUNDAMENTAL RIGHT WHICH GOES
WHEREVER THE JURISDICTION OF THE UNITED STATES EXTENDS, OR IF CONGRESS,
IN FRAMING LAWS FOR OUTLYING TERRITORY BELONGING TO THE UNITED STATES,
WAS OBLIGED TO ESTABLISH THAT SYSTEM BY AFFIRMATIVE LEGISLATION, IT
WOULD FOLLOW THAT, NO MATTER WHAT THE NEEDS OR CAPACITIES OF THE
PEOPLE, TRIAL BY JURY, AND IN NO OTHER WAY, MUST BE FORTHWITH
ESTABLISHED, ALTHOUGH THE RESULT MAY BE TO WORK INJUSTICE AND PROVOKE
DISTURBANCE RATHER THAN TO AID THE ORDERLY ADMINISTRATION OF JUSTICE. 
IF THE UNITED STATES, IMPELLED BY ITS DUTY OR ADVANTAGE, SHALL ACQUIRE
TERRITORY PEOPLED BY SAVAGES, AND OF WHICH IT MAY DISPOSE OR NOT HOLD
FOR ULTIMATE ADMISSION TO STATEHOOD, IF THIS DOCTRINE IS SOUND, IT MUST
ESTABLISH THERE THE TRIAL BY JURY.  TO STATE SUCH A PROPOSITION
DEMONSTRATES THE IMPOSSIBILITY OF CARRYING IT INTO PRACTICE.  AGAIN, IF
THE UNITED STATES SHALL ACQUIRE BY TREATY THE CESSION OF TERRITORY
HAVING AN ESTABLISHED SYSTEM OF JURISPRUDENCE, WHERE JURY TRIALS ARE
UNKNOWN, BUT A METHOD OF FAIR AND ORDERLY TRIAL PREVAILS UNDER AN
ACCEPTABLE AND LONG-ESTABLISHED CODE, THE PREFERENCE OF THE PEOPLE MUST
BE DISREGARDED, THEIR ESTABLISHED CUSTOMS IGNORED AND THEY THEMSELVES
COERCED TO ACCEPT, IN ADVANCE OF TRIAL UNKNOWN TO THEM AND UNSUITED TO
THEIR NEEDS.  WE DO NOT THINK IT WAS INTENDED, IN GIVING POWER TO
CONGRESS TO MAKE REGULATIONS FOR THE TERRITORIES, TO HAMPER ITS
EXERCISE WITH THIS CONDITION."  DORR V. UNITED STATES, 195 U.S. 138,
148.  (FN6) 

THE "FUNDAMENTAL RIGHT" TEST IS THE ONE WHICH THE COURT HAS
CONSISTENTLY ENUNCIATED IN THE LONG SERIES OF CASES - E.G., AMERICAN
INS. CO. V. CANTER, 1 PET. 511; DE LIMA V. BIDWELL, 182 U.S. 1; DOWNES
V. BIDWELL, 182 U.S. 244; DORR V. UNITED STATES, 195 U.S. 138, BALZAC
V. PORTO RICO, 258 U.S. 298 - DEALING WITH CLAIMS OF CONSTITUTIONAL
RESTRICTIONS ON THE POWER OF CONGRESS TO "MAKE ALL NEEDFUL RULES AND
REGULATIONS" FOR GOVERNING THE UNINCORPORATED TERRITORIES.  THE PROCESS
OF DECISION APPROPRIATE TO THE PROBLEM LED TO A DETAILED EXAMINATION OF
THE RELATION OF THE SPECIFIC "TERRITORY" TO THE UNITED STATES.  THIS
EXAMINATION, IN ITS SIMILARITY TO ANALYSIS IN TERMS OF "DUE PROCESS,"
IS ESSENTIALLY THE SAME AS THAT TO BE MADE IN THE PRESENT CASES IN
WEIGHING CONGRESSIONAL POWER TO MAKE "RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES" AGAINST THE SAFEGUARDS OF
ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS. 

THE RESULTS IN THE CASES THAT AROSE BY REASON OF THE ACQUISITION OF
EXOTIC "TERRITORY" DO NOT CONTROL THE PRESENT CASES, FOR THE
TERRITORIAL CASES REST SPECIFICALLY ON ART. IV, SEC. 3, WHICH IS A
GRANT OF POWER TO CONGRESS TO DEAL WITH "TERRITORY" AND OTHER
GOVERNMENT PROPERTY.  OF COURSE THE POWER SOUGHT TO BE EXERCISED IN
GREAT BRITAIN AND JAPAN DOES NOT RELATE TO "TERRITORY."  (FN7)  THE
COURT'S OPINIONS IN THE TERRITORIAL CASES DID NOT LAY DOWN A BROAD
PRINCIPLE THAT THE PROTECTIVE PROVISIONS OF THE CONSTITUTION DO NOT
APPLY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.  THIS COURT
CONSIDERED THE PARTICULAR SITUATION IN EACH NEWLY ACQUIRED TERRITORY TO
DETERMINE WHETHER THE GRANT TO CONGRESS OF POWER TO GOVERN "TERRITORY"
WAS RESTRICTED BY A SPECIFIC PROVISION OF THE CONSTITUTION.  THE
TERRITORIAL CASES, IN THE EMPHASIS PUT BY THEM ON THE NECESSITY FOR
CONSIDERING THE SPECIFIC CIRCUMSTANCES OF EACH PARTICULAR CASE, ARE
THUS RELEVANT IN THAT THEY PROVIDE AN ILLUSTRATIVE METHOD FOR
HARMONIZING CONSTITUTIONAL PROVISIONS WHICH APPEAR, SEPARATELY
CONSIDERED, TO BE CONFLICTING. 

THE COURT LAST TERM RELIED ON A SECOND SOURCE OF AUTHORITY, THE
CONSULAR COURT CASE, IN RE ROSS, 140 U.S. 453.  PURSUANT TO A TREATY
WITH JAPAN, ROSS, A BRITISH SUBJECT BUT A MEMBER OF THE CREW OF A
UNITED STATES SHIP, WAS TRIED AND CONVICTED IN A CONSULAR COURT IN
YOKOHAMA FOR MURDER OF A FELLOW SEAMAN WHILE THE SHIP WAS IN YOKOHAMA
HARBOR.  HIS APPLICATION FOR A WRIT OF HABEAS CORPUS TO A UNITED STATES
CIRCUIT COURT WAS DENIED, 44 F. 185, AND ON APPEAL HERE, THE JUDGMENT
WAS AFFIRMED.  THIS COURT SET FORTH THE GROUND OF THE CIRCUIT COURT,
"THE LONG AND UNIFORM ACQUIESCENCE BY THE EXECUTIVE, ADMINISTRATIVE AND
LEGISLATIVE DEPARTMENTS OF THE GOVERNMENT IN THE VALIDITY OF THE
LEGISLATION," 140 U.S., AT 461, AND THEN STATED: 

"THE CIRCUIT COURT MIGHT HAVE FOUND AN ADDITIONAL GROUND FOR NOT
CALLING IN QUESTION THE LEGISLATION OF CONGRESS, IN THE UNIFORM
PRACTICE OF CIVILIZED GOVERNMENTS FOR CENTURIES TO PROVIDE CONSULAR
TRIBUNALS IN OTHER THAN CHRISTIAN COUNTRIES  ...  FOR THE TRIAL OF
THEIR OWN SUBJECTS OR CITIZENS FOR OFFENCES COMMITTED IN THOSE
COUNTRIES, AS WELL AS FOR THE SETTLEMENT OF CIVIL DISPUTES BETWEEN
THEM; AND IN THE UNIFORM RECOGNITION, DOWN TO THE TIME OF THE FORMATION
OF OUR GOVERNMENT, OF THE FACT THAT THE ESTABLISHMENT OF SUCH TRIBUNALS
WAS AMONG THE MOST IMPORTANT SUBJECTS FOR TREATY STIPULATIONS  ...  . 

   *         *         *         *         * 

"THE TREATY-MAKING POWER VESTED IN OUR GOVERNMENT EXTENDS TO ALL
PROPER SUBJECTS OF NEGOTIATION WITH FOREIGN GOVERNMENTS.  IT CAN,
EQUALLY WITH ANY OF THE FORMER OR PRESENT GOVERNMENTS OF EUROPE, MAKE
TREATIES PROVIDING FOR THE EXERCISE OF JUDICIAL AUTHORITY IN OTHER
COUNTRIES BY ITS OFFICERS APPOINTED TO RESIDE THEREIN. 

"WE DO NOT UNDERSTAND THAT ANY QUESTION IS MADE BY COUNSEL AS TO ITS
POWER IN THIS RESPECT.  HIS OBJECTION IS TO THE LEGISLATION BY WHICH
SUCH TREATIES ARE CARRIED OUT  ...  . 

"  ... BY THE CONSTITUTION A GOVERNMENT IS ORDAINED AND ESTABLISHED
'FOR THE UNITED STATES OF AMERICA,' AND NOT FOR COUNTRIES OUTSIDE OF
THEIR LIMITS.  THE GUARANTEES IT AFFORDS AGAINST ACCUSATION OF CAPITAL
OR INFAMOUS CRIMES, EXCEPT BY INDICTMENT OR PRESENTMENT BY A GRAND
JURY, AND FOR AN IMPARTIAL TRIAL BY A JURY WHEN THUS ACCUSED, APPLY
ONLY TO CITIZENS AND OTHERS WITHIN THE UNITED STATES, OR WHO ARE
BROUGHT THERE FOR TRIAL FOR ALLEGED OFFENCES COMMITTED ELSEWHERE, AND
NOT TO RESIDENTS OR TEMPORARY SOJOURNERS ABROAD  ...  .  THE
CONSTITUTION CAN HAVE NO OPERATION IN ANOTHER COUNTRY.  WHEN,
THEREFORE, THE REPRESENTATIVES OR OFFICERS OF OUR GOVERNMENT ARE
PERMITTED TO EXERCISE AUTHORITY OF ANY KIND IN ANOTHER COUNTRY, IT MUST
BE ON SUCH CONDITIONS AS THE TWO COUNTRIES MAY AGREE, THE LAWS OF
NEITHER ONE BEING OBLIGATORY UPON THE OTHER.  THE DECK OF A PRIVATE
AMERICAN VESSEL, IT IS TRUE, IS CONSIDERED FOR MANY PURPOSES
CONSTRUCTIVELY AS TERRITORY OF THE UNITED STATES, YET PERSONS ON BOARD
OF SUCH VESSELS, WHETHER OFFICERS, SAILORS, OR PASSENGERS, CANNOT
INVOKE THE PROTECTION OF THE PROVISIONS REFERRED TO UNTIL BROUGHT
WITHIN THE ACTUAL TERRITORIAL BOUNDARIES OF THE UNITED STATES  ... ." 
140 U.S., AT 462-464. 

ONE OBSERVATION SHOULD BE MADE AT THE OUTSET ABOUT THE GROUNDS FOR
DECISION IN ROSS.  INSOFAR AS THE OPINION EXPRESSED A VIEW THAT THE
CONSTITUTION IS NOT OPERATIVE OUTSIDE THE UNITED STATES - AND
APPARENTLY MR. JUSTICE FIELD MEANT BY "UNITED STATES" ALL LANDS OVER
WHICH THE UNITED STATES FLAG FLEW, SEE JOHN W. BURGESS, HOW MAY THE
UNITED STATES GOVERN ITS EXTRA-CONTINENTAL TERRITORY?, 14 POL.  SCI. 
Q. 1 (1899) - IT EXPRESSED A NOTION THAT HAS LONG SINCE EVAPORATED. 
GOVERNMENTAL ACTION ABROAD IS PERFORMED UNDER BOTH THE AUTHORITY AND
THE RESTRICTIONS OF THE CONSTITUTION - FOR EXAMPLE, PROCEEDINGS BEFORE
AMERICAN MILITARY TRIBUNALS, WHETHER IN GREAT BRITAIN OR IN THE UNITED
STATES, ARE SUBJECT TO THE APPLICABLE RESTRICTIONS OF THE
CONSTITUTION.  SEE OPINIONS IN BURNS V. WILSON, 346 U.S. 137. 

THE SIGNIFICANCE OF THE ROSS CASE AND ITS RELEVANCE TO THE PRESENT
CASES CANNOT BE ASSESSED UNLESS DUE REGARD IS ACCORDED THE HISTORICAL
CONTEXT IN WHICH THAT CASE WAS DECIDED.  ROSS IS NOT ROOTED IN ANY
ABSTRACT PRINCIPLE OR COMPREHENSIVE THEORY TOUCHING CONSTITUTIONAL
POWER OR ITS RESTRICTIONS.  IT WAS DECIDED WITH REFERENCE TO A VERY
PARTICULAR, PRACTICAL PROBLEM WITH A LONG HISTORY.  TO BE MINDFUL OF
THIS DOES NOT ATTRIBUTE TO MR. JUSTICE FIELD'S OPINION SOME UNAVOWED
HISTORICAL ASSUMPTION.  ON BEHALF OF THE WHOLE COURT, HE SPELLED OUT
THE CONSIDERATIONS THAT CONTROLLED IT: 

"THE PRACTICE OF EUROPEAN GOVERNMENTS TO SEND OFFICERS TO RESIDE IN
FOREIGN COUNTRIES, AUTHORIZED TO EXERCISE A LIMITED JURISDICTION OVER
VESSELS AND SEAMEN OF THEIR COUNTRY, TO WATCH THE INTERESTS OF THEIR
COUNTRYMEN AND TO ASSIST IN ADJUSTING THEIR DISPUTES AND PROTECTING
THEIR COMMERCE, GOES BACK TO A VERY EARLY PERIOD, EVEN PRECEDING WHAT
ARE TERMED THE MIDDLE AGES  ...  .  IN OTHER THAN CHRISTIAN COUNTRIES
THEY WERE, BY TREATY STIPULATIONS, USUALLY CLOTHED WITH AUTHORITY TO
HEAR COMPLAINTS AGAINST THEIR COUNTRYMEN AND TO SIT IN JUDGMENT UPON
THEM WHEN CHARGED WITH PUBLIC OFFENCES.  AFTER THE RISE OF ISLAMISM,
AND THE SPREAD OF ITS FOLLOWERS OVER EASTERN ASIA AND OTHER COUNTRIES
BORDERING ON THE MEDITERRANEAN, THE EXERCISE OF THIS JUDICIAL AUTHORITY
BECAME A MATTER OF GREAT CONCERN.  THE INTENSE HOSTILITY OF THE PEOPLE
OF MOSLEM FAITH TO ALL OTHER SECTS, AND PARTICULARLY TO CHRISTIANS,
AFFECTED ALL THEIR INTERCOURSE, AND ALL PROCEEDINGS HAD IN THEIR
TRIBUNALS.  EVEN THE RULES OF EVIDENCE ADOPTED BY THEM PLACED THOSE OF
DIFFERENT FAITH ON UNEQUAL GROUNDS IN ANY CONTROVERSY WITH THEM.  FOR
THIS CAUSE, AND BY REASON OF THE BARBAROUS AND CRUEL PUNISHMENTS
INFLICTED IN THOSE COUNTRIES, AND THE FREQUENT USE OF TORTURE TO
ENFORCE CONFESSION FROM PARTIES ACCUSED, IT WAS A MATTER OF DEEP
INTEREST TO CHRISTIAN GOVERNMENTS TO WITHDRAW THE TRIAL OF THEIR
SUBJECTS, WHEN CHARGED WITH THE COMMISSION OF A PUBLIC OFFENCE, FROM
THE ARBITRARY AND DESPOTIC ACTION OF THE LOCAL OFFICIALS.  TREATIES
CONFERRING SUCH JURISDICTION UPON THESE CONSULS WERE ESSENTIAL TO THE
PEACEFUL RESIDENCE OF CHRISTIANS WITHIN THOSE COUNTRIES AND THE
SUCCESSFUL PROSECUTION OF COMMERCE WITH THEIR PEOPLE."  140 U.S., AT
462-463. 

"IT IS TRUE THAT THE OCCASION FOR CONSULAR TRIBUNALS IN JAPAN MAY
HEREAFTER BE LESS THAN AT PRESENT, AS EVERY YEAR THAT COUNTRY
PROGRESSES IN CIVILIZATION AND IN THE ASSIMILATION OF ITS SYSTEM OF
JUDICIAL PROCEDURE TO THAT OF CHRISTIAN COUNTRIES, AS WELL AS IN THE
IMPROVEMENT OF ITS PENAL STATUTES; BUT THE SYSTEM OF CONSULAR TRIBUNALS
...  IS OF THE HIGHEST IMPORTANCE, AND THEIR ESTABLISHMENT IN OTHER
THAN CHRISTIAN COUNTRIES, WHERE OUR PEOPLE MAY DESIRE TO GO IN PURSUIT
OF COMMERCE, WILL OFTEN BE ESSENTIAL FOR THE PROTECTION OF THEIR
PERSONS AND PROPERTY."  ID., AT 480.  (FN8) 

IT IS IMPORTANT TO HAVE A LIVELY SENSE OF THIS BACKGROUND BEFORE
ATTEMPTING TO DRAW ON THE ROSS CASE.  HISTORIANS HAVE TRACED GRANTS OF
EXTRATERRITORIAL RIGHTS AS FAR BACK AS THE PERMISSION GIVEN BY EGYPT IN
THE 12TH OR 13TH CENTURY B.C. TO THE MERCHANTS OF TYRE TO ESTABLISH
FACTORIES ON THE NILE AND TO LIVE UNDER THEIR OWN LAW AND PRACTICE
THEIR OWN RELIGION.  NUMEROUS OTHER INSTANCES OF PERSONS LIVING UNDER
THEIR OWN LAW IN FOREIGN LANDS EXISTED IN THE LATER PRE-CHRISTIAN ERA
AND DURING THE ROMAN EMPIRE AND THE SO-CALLED DARK AND MIDDLE AGES -
GREEKS IN EGYPT, ALL SORTS OF FOREIGNERS IN ROME, INHABITANTS OF
CHRISTIAN CITIES AND STATES IN THE BYZANTINE EMPIRE, THE LATIN KINGDOMS
OF THE LEVANT, AND OTHER CHRISTIAN CITIES AND STATES, MOHAMMEDANS IN
THE BYZANTINE EMPIRE AND CHINA, AND MANY OTHERS LIVED IN FOREIGN LANDS
UNDER THEIR OWN LAW.  WHILE THE ORIGINS OF THIS EXTRATERRITORIAL
JURISDICTION MAY HAVE DIFFERED IN EACH COUNTRY, THE NOTION THAT LAW WAS
FOR THE BENEFIT OF THE CITIZENS OF A COUNTRY AND ITS ADVANTAGES NOT FOR
FOREIGNERS APPEARS TO HAVE BEEN AN IMPORTANT FACTOR.  THUS, THERE
EXISTED A LONG-ESTABLISHED CUSTOM OF EXTRATERRITORIAL JURISDICTION AT
THE BEGINNING OF THE 15TH CENTURY WHEN THE COMPLETE CONQUEST OF THE
BYZANTINE EMPIRE BY THE TURKS AND THE ESTABLISHMENT OF THE OTTOMAN
EMPIRE SUBSTANTIALLY ALTERED POLITICAL RELATIONS BETWEEN CHRISTIAN
EUROPE AND THE NEAR EAST.  BUT COMMERCIAL RELATIONS CONTINUED, AND IN
1535 FRANCIS I OF FRANCE NEGOTIATED A TREATY WITH SULEIMAN I OF TURKEY
THAT PROVIDED FOR NUMEROUS EXTRATERRITORIAL RIGHTS, INCLUDING CRIMINAL
AND CIVIL JURISDICTION OVER ALL DISPUTES AMONG FRENCH SUBJECTS.  1
ERNEST CHARRIERE, NEGOCIATIONS DE LA FRANCE DANS LE LEVANT 283.  OTHER
NATIONS AND EVENTUALLY THE UNITED STATES IN 1830, 8 STAT. 408, LATER
NEGOTIATED SIMILAR TREATIES WITH THE TURKS.  (FOR A MORE COMPLETE
HISTORY OF THE DEVELOPMENT OF EXTRATERRITORIAL RIGHTS AND CONSULAR
JURISDICTION SEE 1 CALVO, LE DROIT INTERNATIONAL THEORIQUE ET PRATIQUE
(5TH ED., ROUSSEAU, 1896), 2-18, 2 ID., 9-12; HINCKLEY, AMERICAN
CONSULAR JURISDICTION IN THE ORIENT, 1-9; 1 MILTITZ, MANUEL DES CONSULS
PASSIM; RAVNDAL, THE ORIGIN OF THE CAPITULATIONS AND OF THE CONSULAR
INSTITUTION, S. DOC. NO. 34, 67TH CONG., 1ST SESS. 5-45, 56-96; SHIH
SHUN LIU, EXTRATERRITORIALITY, 23-66, 118 STUDIES IN HISTORY, ECONOMICS
AND PUBLIC LAW, COLUMBIA UNIVERSITY (1925); TWISS, THE LAW OF NATIONS
(REV. ED. 1884), 443-457.) 

THE EMERGENCE OF THE NATION-STATE IN EUROPE AND THE GROWTH OF THE
DOCTRINE OF ABSOLUTE TERRITORIAL SOVEREIGNTY CHANGED THE NATURE OF
EXTRATERRITORIAL RIGHTS.  NO LONGER WERE STRANGERS TO BE DENIED THE
ADVANTAGES OF LOCAL LAW.  INDEED, TERRITORIAL SOVEREIGNTY MEANT THE
EXERCISE OF SOVEREIGNTY OVER ALL RESIDENTS WITHIN THE BORDERS OF THE
STATE, AND THE SYSTEM OF EXTRATERRITORIAL CONSULAR JURISDICTION TENDED
TO DIE OUT AMONG CHRISTIAN NATIONS IN THE 18TH AND 19TH CENTURIES.  BUT
A NEW JUSTIFICATION WAS FOUND FOR THE CONTINUATION OF THAT JURISDICTION
IN THOSE COUNTRIES WHOSE SYSTEMS OF JUSTICE WERE CONSIDERED INFERIOR,
AND IT WAS THIS STRONG FEELING WITH RESPECT TO MOSLEM AND FAR EASTERN
COUNTRIES THAT WAS REFLECTED, AS WE HAVE SEEN, IN THE ROSS OPINION. 
UNTIL 1842, CHINA HAD ASSERTED CONTROL OVER ALL FOREIGNERS WITHIN ITS
TERRITORY, SHIH SHUN LIU, OP. CIT. SUPRA, 76-89, BUT, AS A RESULT OF
THE OPIUM WAR, GREAT BRITAIN NEGOTIATED A TREATY WITH CHINA WHEREBY SHE
OBTAINED CONSULAR OFFICES IN FIVE OPEN PORTS AND WAS GRANTED
EXTRATERRITORIAL RIGHTS OVER HER CITIZENS.  ON JULY 3, 1844, CALEB
CUSHING NEGOTIATED A SIMILAR TREATY ON BEHALF OF THE UNITED STATES.  8
STAT. 592.  IN A LETTER TO SECRETARY OF STATE CALHOUN, HE EXPLAINED:
"I ENTERED CHINA WITH THE FORMED GENERAL CONVICTION THAT THE UNITED
STATES OUGHT NOT TO CONCEDE TO ANY FOREIGN STATE, UNDER ANY
CIRCUMSTANCES, JURISDICTION OVER THE LIFE AND LIBERTY OF A CITIZEN OF
THE UNITED STATES, UNLESS THAT FOREIGN STATE BE OF OUR OWN FAMILY OF
NATIONS, - IN A WORD, A CHRISTIAN STATE."  QUOTED IN 7 OP. ATTY. GEN.
495, 496-497.  LATER TREATIES CONTINUED THE EXTRATERRITORIAL RIGHTS OF
THE UNITED STATES, AND THE TREATY OF 1903 CONTAINED THE FOLLOWING
ARTICLE DEMONSTRATING THE PURPOSE OF THOSE RIGHTS: 

"THE GOVERNMENT OF CHINA HAVING EXPRESSED A STRONG DESIRE TO REFORM
ITS JUDICIAL SYSTEM AND TO BRING IT INTO ACCORD WITH THAT OF WESTERN
NATIONS, THE UNITED STATES AGREES TO GIVE EVERY ASSISTANCE TO SUCH
REFORM AND WILL ALSO BE PREPARED TO RELINQUISH EXTRATERRITORIAL RIGHTS
WHEN SATISFIED THAT THE STATE OF THE CHINESE LAWS, THE ARRANGEMENTS FOR
THEIR ADMINISTRATION, AND OTHER CONSIDERATIONS WARRANT IT IN DOING
SO."  33 STAT. 2208, 2215. 

THE FIRST TREATY WITH JAPAN WAS NEGOTIATED BY COMMODORE PERRY IN
1854.  11 STAT. 597.  IT OPENED TWO PORTS, BUT DID NOT PROVIDE FOR ANY
EXERCISE OF JUDICIAL POWERS BY UNITED STATES OFFICIALS.  UNDER THE
TREATY OF 1857, 11 STAT. 723, SUCH POWER WAS GIVEN, AND LATER TREATIES,
WHICH OPENED UP FURTHER JAPANESE CITIES FOR TRADE AND RESIDENCE BY
UNITED STATES CITIZENS, RETAINED THESE RIGHTS.  THE TREATY OF 1894,
EFFECTIVE ON JULY 17, 1899, HOWEVER, ENDED THESE EXTRATERRITORIAL
RIGHTS AND JAPAN, EVEN THOUGH A "NON-CHRISTIAN" NATION, CAME TO OCCUPY
THE SAME STATUS AS CHRISTIAN NATIONS.  29 STAT. 848.  THE EXERCISE OF
CRIMINAL JURISDICTION BY CONSULS OVER UNITED STATES CITIZENS WAS ALSO
PROVIDED FOR, AT ONE TIME OR ANOTHER, IN TREATIES WITH BORNEO, 10 STAT.
909, 910; SIAM, 11 STAT. 683, 684; MADAGASCAR, 15 STAT. 491, 492;
SAMOAN ISLANDS, 20 STAT. 704; KOREA, 23 STAT. 720, 721; TONGA ISLANDS,
25 STAT. 1440, 1442, AND, BY VIRTUE OF MOST-FAVORED-NATION CLAUSES, IN
TREATIES WITH TRIPOLI, 8 STAT. 154; PERSIA, 11 STAT. 2254.  THE
EXERCISE OF CRIMINAL JURISDICTION WAS ALSO PROVIDED FOR IN A TREATY
WITH MOROCCO, 8 STAT. 100, BY VIRTUE OF A MOST-FAVORED-NATION CLAUSE
AND BY VIRTUE OF A CLAUSE GRANTING JURISDICTION IF "ANY  ...  CITIZENS
OF THE UNITED STATES  ...  SHALL HAVE ANY DISPUTES WITH EACH OTHER." 
THE WORD "DISPUTES" HAS BEEN INTERPRETED BY THE INTERNATIONAL COURT OF
JUSTICE TO COMPREHEND CRIMINAL AS WELL AS CIVIL DISPUTES.  FRANCE V.
UNITED STATES, I.C.J. REPORTS 1952, PP. 176, 188-189.  THE TREATIES
WITH ALGIERS, 8 STAT. 133, 224, 244; TUNIS, 8 STAT. 157; AND MUSCAT, 8
STAT. 458, CONTAINED SIMILAR "DISPUTES" CLAUSES.  (FN9) 

THE JUDICIAL POWER EXERCISED BY CONSULS WAS DEFINED BY STATUTE AND
WAS SWEEPING: 

"JURISDICTION IN BOTH CRIMINAL AND CIVIL MATTERS SHALL, IN ALL CASES,
BE EXERCISED AND ENFORCED IN CONFORMITY WITH THE LAWS OF THE UNITED
STATES, WHICH ARE HEREBY, SO FAR AS IS NECESSARY TO EXECUTE SUCH
TREATIES, RESPECTIVELY, AND SO FAR AS THEY ARE SUITABLE TO CARRY THE
SAME INTO EFFECT, EXTENDED OVER ALL CITIZENS OF THE UNITED STATES IN
THOSE COUNTRIES, AND OVER ALL OTHERS TO THE EXTENT THAT THE TERMS OF
THE TREATIES, RESPECTIVELY, JUSTIFY OR REQUIRE.  BUT IN ALL CASES WHERE
SUCH LAWS ARE NOT ADAPTED TO THE OBJECT, OR ARE DEFICIENT IN THE
PROVISIONS NECESSARY TO FURNISH SUITABLE REMEDIES, THE COMMON LAW AND
THE LAW OF EQUITY AND ADMIRALTY SHALL BE EXTENDED IN LIKE MANNER OVER
SUCH CITIZENS AND OTHERS IN THOSE COUNTRIES; AND IF NEITHER THE COMMON
LAW, NOR THE LAW OF EQUITY OR ADMIRALTY, NOR THE STATUTES OF THE UNITED
STATES, FURNISH APPROPRIATE AND SUFFICIENT REMEDIES, THE MINISTERS IN
THOSE COUNTRIES, RESPECTIVELY, SHALL, BY DECREES AND REGULATIONS WHICH
SHALL HAVE THE FORCE OF LAW, SUPPLY SUCH DEFECTS AND DEFICIENCIES." 
REV.  STAT. SEC. 4086. 

THE CONSULS, THEN, EXERCISED NOT ONLY EXECUTIVE AND JUDICIAL POWER,
BUT LEGISLATIVE POWER AS WELL. 

THE NUMBER OF PEOPLE SUBJECT TO THE JURISDICTION OF THESE COURTS
DURING THEIR MOST ACTIVE PERIODS APPEARS TO HAVE BEEN FAIRLY SMALL.  IN
THE CHRONICLE & DIRECTORY FOR CHINA, JAPAN, & THE PHILIPPINES, FOR THE
YEAR 1870, THERE IS A LISTING OF THE TOTAL NUMBER OF FOREIGN, NOT JUST
UNITED STATES, RESIDENTS IN THESE THREE PLACES.  THE LIST IS 81 PAGES
LONG, WITH A TOTAL OF SOME 4,500 PERSONS.  (PP. 54-134.)  THIS SAME
PUBLICATION GIVES THE FOLLOWING INFORMATION ABOUT JAPAN:  "THE NUMBER
OF FOREIGNERS SETTLED IN JAPAN IS AS YET VERY SMALL.  AT THE END OF THE
YEAR 1862, THE FOREIGN COMMUNITY AT KANAGAWA, THE PRINCIPAL OF THE
THREE PORTS OF JAPAN OPEN TO ALIENS, CONSISTED OF  ...  THIRTY-EIGHT
AMERICANS  ...  AND IN THE LATTER PART OF 1864 THE PERMANENT FOREIGN
RESIDENTS AT KANAGAWA HAD INCREASED TO 300, NOT COUNTING SOLDIERS, OF
WHICH NUMBER  ...  ABOUT 80 WERE AMERICANS  ...  .  AT NAGASAKI, THE
SECOND PORT OF JAPAN THROWN OPEN TO FOREIGN TRADE BY THE GOVERNMENT,
THE NUMBER OF ALIEN SETTLERS WAS AS FOLLOWS ON THE 1ST OF JANUARY,
1866:  -  ... AMERICAN CITIZENS 32  ...  .  A THIRD PORT OPENED TO
EUROPEAN AND AMERICAN TRADERS, THAT OF HAKODADI, IN THE NORTH OF JAPAN,
WAS DESERTED, AFTER A LENGTHENED TRIAL, BY NEARLY ALL THE FOREIGN
MERCHANTS SETTLED THERE  ...  ."  (APPENDIX, P. 353.)  THE STATESMAN'S
YEARBOOK OF 1890 SHOWS: CHINA AT THE END OF 1888:  1,020 AMERICANS (P.
411); JAPAN IN 1887:  711 AMERICANS (P. 709); MOROCCO, 1889 ESTIMATE:
"THE NUMBER OF CHRISTIANS IS VERY SMALL, NOT EXCEEDING 1,500."  (P.
739.)  THE STATESMAN'S YEARBOOK OF 1901 SHOWS: CHINA AT THE END OF
1899:  2,335 AMERICANS (P. 484); JAPAN, DECEMBER 31, 1898, JUST BEFORE
THE TERMINATION OF OUR EXTRATERRITORIAL RIGHTS:  1,165 AMERICANS (P.
809); MOROCCO: "THE NUMBER OF CHRISTIANS DOES NOT EXCEED 6,000; THE
CHRISTIAN POPULATION OF TANGIER ALONE PROBABLY AMOUNTS TO 5,000."  (P.
851.)  THESE FIGURES OF COURSE DO NOT INCLUDE THOSE CIVILIANS
TEMPORARILY IN THE COUNTRY COMING WITHIN CONSULAR JURISDICTION. 

THE CONSULAR COURT JURISDICTION, THEN, WAS EXERCISED IN COUNTRIES
WHOSE LEGAL SYSTEMS AT THE TIME WERE CONSIDERED SO INFERIOR THAT
JUSTICE COULD NOT BE OBTAINED IN THEM BY OUR CITIZENS.  THE EXISTENCE
OF THESE COURTS WAS BASED ON LONG-ESTABLISHED CUSTOM AND THEY WERE
JUSTIFIED AS THE BEST POSSIBLE MEANS FOR SECURING JUSTICE FOR THE FEW
AMERICANS PRESENT IN THOSE COUNTRIES.  THE ROSS CASE, THEREFORE, AROSE
OUT OF, AND RESTS ON, VERY SPECIAL, CONFINED CIRCUMSTANCES, AND CANNOT
BE APPLIED AUTOMATICALLY TO THE PRESENT SITUATION, INVOLVING HUNDREDS
OF THOUSANDS OF AMERICAN CITIZENS IN COUNTRIES WITH CIVILIZED SYSTEMS
OF JUSTICE.  IF CONGRESS HAD ESTABLISHED CONSULAR COURTS OR SOME OTHER
NON-MILITARY PROCEDURE FOR TRIAL THAT DID NOT CONTAIN ALL THE
PROTECTIONS AFFORDED BY ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS
FOR THE TRIAL OF CIVILIAN DEPENDENTS OF MILITARY PERSONNEL ABROAD, WE
WOULD BE FORCED TO A DETAILED ANALYSIS OF THE SITUATION OF THE CIVILIAN
DEPENDENT POPULATION ABROAD IN DECIDING WHETHER THE ROSS CASE SHOULD BE
EXTENDED TO COVER SUCH A CASE.  IT IS NOT NECESSARY TO DO THIS IN THE
PRESENT CASES IN VIEW OF OUR DECISION THAT THE FORM OF TRIAL HERE
PROVIDED CANNOT CONSTITUTIONALLY BE JUSTIFIED. 

THE GOVERNMENT, APPARENTLY RECOGNIZING THE CONSTITUTIONAL BASIS FOR
THE DECISION IN ROSS, HAS, ON REHEARING, SOUGHT TO SHOW THAT CIVILIANS
IN GENERAL AND CIVILIAN DEPENDENTS IN PARTICULAR HAVE BEEN SUBJECT TO
MILITARY ORDER AND DISCIPLINE EVER SINCE THE COLONIAL PERIOD.  THE
MATERIALS IT HAS SUBMITTED SEEM TOO EPISODIC, TOO MEAGER, TO FORM A
SOLID BASIS IN HISTORY, PRECEDING AND CONTEMPORANEOUS WITH THE FRAMING
OF THE CONSTITUTION, FOR CONSTITUTIONAL ADJUDICATION.  WHAT HAS BEEN
URGED ON US FALLS FAR TOO SHORT OF PROVING A WELL-ESTABLISHED PRACTICE
TO BE DEEMED TO BE INFUSED INTO THE CONSTITUTION - OF COURT-MARTIAL
JURISDICTION, CERTAINLY NOT IN CAPITAL CASES, OVER SUCH CIVILIANS IN
TIME OF PEACE. 

FN1  "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  ... ." 

ARTICLE 2 OF THE UNIFORM CODE OF MILITARY JUSTICE PROVIDES:  "THE
FOLLOWING PERSONS ARE SUBJECT TO THIS CODE:  ...  (11) SUBJECT TO THE
PROVISIONS OF ANY TREATY OR AGREEMENT TO WHICH THE UNITED STATES IS OR
MAY BE A PARTY OR TO ANY ACCEPTED RULE OF INTERNATIONAL LAW, ALL
PERSONS SERVING WITH, EMPLOYED BY, OR ACCOMPANYING THE ARMED FORCES
WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES ...  ." 

FN2  ARTICLE III, SEC. 2, CL. 3, PROVIDES THAT "THE TRIAL OF ALL
CRIMES  ...  WHEN NOT COMMITTED WITHIN ANY STATE  ...  SHALL BE AT SUCH
PLACE OR PLACES AS THE CONGRESS MAY BY LAW HAVE DIRECTED."  SINCE 1790,
1 STAT. 113-114, CONGRESS HAS PROVIDED FOR SUCH TRIAL IN THE DISTRICT
WHERE THE OFFENDER IS FOUND (APPREHENDED) OR FIRST BROUGHT.  SEE 18
U.S.C. SEC. 3238. 

FN3  UNDER ARTICLE 19 OF THE UNIFORM CODE OF MILITARY JUSTICE, 64
STAT. 114, 50 U.S.C.  SEC. 579, A SPECIAL COURT-MARTIAL MAY IMPOSE ANY
PUNISHMENT NOT FORBIDDEN BY THE CODE "EXCEPT DEATH, DISHONORABLE
DISCHARGE, DISMISSAL, CONFINEMENT IN EXCESS OF SIX MONTHS, HARD LABOR
WITHOUT CONFINEMENT IN EXCESS OF THREE MONTHS, FORFEITURE OF PAY
EXCEEDING TWO-THIRDS PAY PER MONTH, OR FORFEITURE OF PAY FOR A PERIOD
EXCEEDING SIX MONTHS."  UNDER ART. 20, 64 STAT. 114, 50 U.S.C. SEC.
580, A SUMMARY COURT-MARTIAL MAY IMPOSE ANY PUNISHMENT NOT FORBIDDEN BY
THE CODE "EXCEPT DEATH, DISMISSAL, DISHONORABLE OR BAD-CONDUCT
DISCHARGE, CONFINEMENT IN EXCESS OF ONE MONTH, HARD LABOR WITHOUT
CONFINEMENT IN EXCESS OF FORTY-FIVE DAYS, RESTRICTION TO CERTAIN
SPECIFIED LIMITS IN EXCESS OF TWO MONTHS, OR FORFEITURE OF PAY IN
EXCESS OF TWO-THIRDS OF ONE MONTH'S PAY."  IN ORDER TO IMPOSE A
PUNISHMENT IN EXCESS OF THESE LIMITS, A GENERAL COURT-MARTIAL MUST BE
CONVENED UNDER ART. 18, 64 STAT. 114, 50 U.S.C. SEC. 578. 

FN4  A REPORT OF THE JOINT COMMITTEE ON REDUCTION OF NONESSENTIAL
FEDERAL EXPENDITURES ON FEDERAL PERSONNEL AND PAY INDICATES THAT THE
EXECUTIVE AGENCIES OF THE FEDERAL GOVERNMENT, EXCLUDING THE DEPARTMENT
OF DEFENSE, ALONE EMPLOYED 51,027 PERSONS OUTSIDE THE CONTINENTAL
UNITED STATES IN FEBRUARY 1957, EXCLUDING EMPLOYEES OF THE PANAMA
CANAL.  S. COM. PRINT NO. 157, 85TH CONG., 1ST SESS.  ALTHOUGH THESE
FIGURES INCLUDE "SOME FOREIGN NATIONALS," THEY NEVERTHELESS INDICATE A
SUBSTANTIAL NUMBER OF UNITED STATES CITIZENS SUBJECT TO FOREIGN LAW. 
SEE 103 CONG. REC. 5313-5316. 

FN5  HAVING BASED THE CONSTITUTIONALITY OF ARTICLE 2(11) ON THESE
GROUNDS, THE COURT CONCLUDED, "WE HAVE NO NEED TO EXAMINE THE POWER OF
CONGRESS 'TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND
AND NAVAL FORCES' UNDER ARTICLE I OF THE CONSTITUTION."  351 U.S. 470,
476. 

FN6 IN HAWAII V. MANKICHI, 190 U.S. 197, THE COURT RESTED ITS
DECISION ON AN INTERPRETATION OF THE JOINT RESOLUTION OF CONGRESS
ANNEXING THE HAWAIIAN ISLANDS.  THE COURT HELD THAT THE ACT OF
ANNEXATION DID NOT OF ITS OWN FORCE REQUIRE INDICTMENT BY GRAND JURY
AND A TRIAL BY A SIXTH AMENDMENT JURY.  IMPLICIT IN THIS HOLDING WAS
THE ASSUMPTION THAT SUCH INDICTMENT AND TRIAL WERE NOT CONSTITUTIONALLY
REQUIRED IN HAWAII.  THIS ASSUMPTION WAS BASED ON A RECOGNITION THAT
THE ACT SHOULD NOT BE CONSTRUED AS "IMPOSING UPON THE ISLANDS EVERY
PROVISION OF A CONSTITUTION, WHICH MUST HAVE BEEN UNFAMILIAR TO A LARGE
NUMBER OF THEIR INHABITANTS, AND FOR WHICH NO PREVIOUS PREPARATION HAD
BEEN MADE  ... ."  ID., AT 215-216. 

FN7  FOR A STATEMENT OF THE APPLICABLE LAW BEFORE THE QUESTION AROSE
WITH RESPECT TO LANDS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED
STATES, SEE THOMPSON V. UTAH, 170 U.S. 343, 347:  "IT IS EQUALLY BEYOND
QUESTION THAT THE PROVISIONS OF THE NATIONAL CONSTITUTION RELATING TO
TRIALS BY JURY FOR CRIMES AND TO CRIMINAL PROSECUTIONS APPLY TO THE
TERRITORIES OF THE UNITED STATES."  BUT SEE MORMON CHURCH V. UNITED
STATES, 136 U.S. 1, 44:  "DOUBTLESS CONGRESS, IN LEGISLATING FOR THE
TERRITORIES WOULD BE SUBJECT TO THOSE FUNDAMENTAL LIMITATIONS IN FAVOR
OF PERSONAL RIGHTS WHICH ARE FORMULATED IN THE CONSTITUTION AND ITS
AMENDMENTS; BUT THESE LIMITATIONS WOULD EXIST RATHER BY INFERENCE AND
THE GENERAL SPIRIT OF THE CONSTITUTION FROM WHICH CONGRESS DERIVES ALL
ITS POWERS, THAN BY ANY EXPRESS AND DIRECT APPLICATION OF ITS
PROVISIONS." 

FN8  THIS FEELING ABOUT THE "NON-CHRISTIAN" NATIONS OF THE WORLD WAS
WIDELY SHARED.  IN HIS "JUBILEE OF THE CONSTITUTION," DELIVERED ON THE
50TH ANNIVERSARY OF THE INAUGURATION OF GEORGE WASHINGTON, JOHN QUINCY
ADAMS SAID: 

"THE DECLARATION OF INDEPENDENCE RECOGNISED THE EUROPEAN LAW OF
NATIONS, AS PRACTISED AMONG CHRISTIAN NATIONS, TO BE THAT BY WHICH THEY
CONSIDERED THEMSELVES BOUND, AND OF WHICH THEY CLAIMED THE RIGHTS. 
THIS SYSTEM IS FOUNDED UPON THE PRINCIPLE, THAT THE STATE OF NATURE
BETWEEN MEN AND BETWEEN NATIONS, IS A STATE OF PEACE.  BUT THERE WAS A
MAHOMETAN LAW OF NATIONS, WHICH CONSIDERED THE STATE OF NATURE AS A
STATE OF WAR - AN ASIATIC LAW OF NATIONS, WHICH EXCLUDED ALL FOREIGNERS
FROM ADMISSION WITHIN THE TERRITORIES OF THE STATE  ...  .  WITH ALL
THESE DIFFERENT COMMUNITIES, THE RELATIONS OF THE UNITED STATES WERE
FROM THE TIME WHEN THEY HAD BECOME AN INDEPENDENT NATION, VARIOUSLY
MODIFIED ACCORDING TO THE OPERATION OF THOSE VARIOUS LAWS.  IT WAS THE
PURPOSE OF THE CONSTITUTION OF THE UNITED STATES TO ESTABLISH JUSTICE
OVER THEM ALL."  ADAMS, JUBILEE OF THE CONSTITUTION, 73.  SEE ALSO THE
VIEWS OF SECRETARY OF STATE HAMILTON FISH, QUOTED IN 351 U.S., AT 484
485.    FN9  ON AUGUST 1, 1956, THE PRESIDENT APPROVED PUBLIC LAW 856,
84TH CONG., 2D SESS., PROVIDING FOR THE RELINQUISHMENT BY THE
PRESIDENT, AT SUCH TIME AS HE DEEMED APPROPRIATE, OF THE CONSULAR
JURISDICTION OF THE UNITED STATES IN MOROCCO, THE ONLY FOREIGN COUNTRY
WHERE UNITED STATES CONSULS CONTINUED TO EXERCISE SUCH JURISDICTION. 
70 STAT. 773.  THE JURISDICTION WAS RELINQUISHED ON OCTOBER 6, 1956. 
N.Y. TIMES, OCT. 8, 1956, P. 1, COL. 6. 

MR. JUSTICE HARLAN, CONCURRING IN THE RESULT. 

I CONCUR IN THE RESULT, ON THE NARROW GROUND THAT WHERE THE OFFENSE
IS CAPITAL, ARTICLE 2(11) (FN1) CANNOT CONSTITUTIONALLY BE APPLIED TO
THE TRIAL OF CIVILIAN DEPENDENTS OF MEMBERS OF THE ARMED FORCES
OVERSEAS IN TIMES OF PEACE. 

SINCE I AM THE ONLY ONE AMONG TODAY'S MAJORITY WHO JOINED IN THE
COURT'S OPINIONS OF JUNE 11, 1956, WHICH SUSTAINED THE COURT-MARTIAL
JURISDICTION IN THESE CASES, 351 U.S. 470, 487, I THINK IT APPROPRIATE
TO STATE THE REASONS WHICH LED TO MY VOTING, FIRST, TO REHEAR THESE
CASES, 352 U.S. 901, AND, NOW, TO STRIKE DOWN THAT JURISDICTION. 

                                   I. 

THE PETITIONS FOR REHEARING WHICH WERE FILED LAST SUMMER AFFORDED AN
OPPORTUNITY FOR A GREATER DEGREE OF REFLECTION UPON THE DIFFICULT
ISSUES INVOLVED IN THESE CASES THAN, AT LEAST FOR ME, WAS POSSIBLE IN
THE SHORT INTERVAL BETWEEN THE ARGUMENT AND DECISION OF THE CASES IN
THE CLOSING DAYS OF LAST TERM.  (FN2)  AS A RESULT I BECAME SATISFIED
THAT THIS COURT-MARTIAL JURISDICTION COULD IN ANY EVENT NOT BE
SUSTAINED UPON THE REASONING OF OUR PRIOR OPINION.  IN ESSENCE, THAT
REASONING WAS THIS:  (1) UNDER IN RE ROSS, 140 U.S. 453, AND THE
INSULAR CASES, (FN3) THE REQUIREMENT OF A TRIAL BY AN ARTICLE III COURT
AND THE OTHER SPECIFIC SAFEGUARDS OF ARTICLE III AND THE FIFTH AND
SIXTH AMENDMENTS ARE NOT APPLICABLE TO THE TRIAL OF AMERICAN CITIZENS
OUTSIDE THE UNITED STATES; (2) THERE IS THUS NO EXPRESS CONSTITUTIONAL
PROHIBITION AGAINST THE USE OF COURTS-MARTIAL FOR SUCH TRIALS ABROAD;
(3) THE CHOICE OF A COURT-MARTIAL IN CASES SUCH AS THESE WAS
"REASONABLE," BECAUSE OF THESE WOMEN'S CONNECTION WITH THE MILITARY,
AND THEREFORE SATISFIED DUE PROCESS; (4) THE COURT-MARTIAL JURISDICTION
WAS THUS CONSTITUTIONAL.  I HAVE SINCE CONCLUDED THAT THIS ANALYSIS WAS
NOT SOUND, FOR TWO REASONS: 

(1)  THE UNDERLYING PREMISE OF THE PRIOR OPINION, IT SEEMS TO ME, IS
THAT UNDER THE CONSTITUTION THE MERE ABSENCE OF A PROHIBITION AGAINST
AN ASSERTED POWER, PLUS THE ABSTRACT REASONABLENESS OF ITS USE, IS
ENOUGH TO ESTABLISH THE EXISTENCE OF THE POWER.  I THINK THIS IS
ERRONEOUS.  THE POWERS OF CONGRESS, UNLIKE THOSE OF THE ENGLISH
PARLIAMENT, ARE CONSTITUTIONALLY CIRCUMSCRIBED.  UNDER THE CONSTITUTION
CONGRESS HAS ONLY SUCH POWERS AS ARE EXPRESSLY GRANTED OR THOSE THAT
ARE IMPLIED AS REASONABLY NECESSARY AND PROPER TO CARRY OUT THE GRANTED
POWERS.  HENCE THE CONSTITUTIONALITY OF THE STATUTE HERE IN QUESTION
MUST BE TESTED, NOT BY ABSTRACT NOTIONS OF WHAT IS REASONABLE "IN THE
LARGE," SO TO SPEAK, BUT BY WHETHER THE STATUTE, AS APPLIED IN THESE
INSTANCES, IS A REASONABLY NECESSARY AND PROPER MEANS OF IMPLEMENTING A
POWER GRANTED TO CONGRESS BY THE CONSTITUTION.  TO SAY THAT THE
VALIDITY OF THE STATUTE MAY BE RESTED UPON THE INHERENT "SOVEREIGN
POWERS" OF THIS COUNTRY IN ITS DEALINGS WITH FOREIGN NATIONS SEEMS TO
ME TO BE NO MORE THAN BEGGING THE QUESTION.  AS I NOW SEE IT, THE
VALIDITY OF THIS COURT-MARTIAL JURISDICTION MUST DEPEND UPON WHETHER
THE STATUTE, AS APPLIED TO THESE WOMEN, CAN BE JUSTIFIED AS AN EXERCISE
OF THE POWER, GRANTED TO CONGRESS BY ART. I, SEC. 8, CL. 14 OF THE
CONSTITUTION, "TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE
LAND AND NAVAL FORCES."  I CAN FIND NO OTHER CONSTITUTIONAL POWER TO
WHICH THIS STATUTE CAN PROPERLY BE RELATED.  I THEREFORE THINK THAT WE
WERE WRONG LAST TERM IN CONSIDERING THAT WE NEED NOT DECIDE THE CASE IN
TERMS OF THE ARTICLE I POWER.  IN MY OPINION THAT QUESTION SQUARELY
CONFRONTS US. 

(2)  I ALSO THINK THAT WE WERE MISTAKEN IN INTERPRETING ROSS AND THE
INSULAR CASES AS STANDING FOR THE SWEEPING PROPOSITION THAT THE
SAFEGUARDS OF ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS
AUTOMATICALLY HAVE NO APPLICATION TO THE TRIAL OF AMERICAN CITIZENS
OUTSIDE THE UNITED STATES, NO MATTER WHAT THE CIRCUMSTANCES.  ASIDE
FROM THE QUESTIONALBE WISDOM OF MORTGAGING THE FUTURE BY SUCH A BROAD
PRONOUNCEMENT, I AM SATISFIED THAT OUR PRIOR HOLDING SWEPT TOO LIGHTLY
OVER THE HISTORICAL CONTEXT IN WHICH THIS COURT UPHELD THE JURISDICTION
OF THE OLD CONSULAR AND TERRITORIAL COURTS IN THOSE CASES.  I SHALL NOT
REPEAT WHAT MY BROTHER FRANKFURTER HAS WRITTEN ON THIS SUBJECT, WITH
WHICH I AGREE.  BUT I DO NOT GO AS FAR AS MY BROTHER BLACK SEEMS TO GO
ON THIS SCORE.  HIS OPINION, IF I UNDERSTAND IT CORRECTLY, IN EFFECT
DISCARDS ROSS AND THE INSULAR CASES AS HISTORICAL ANOMALIES.  I BELIEVE
THAT THOSE CASES, PROPERLY UNDERSTOOD, STILL HAVE VITALITY, AND THAT,
FOR REASONS SUGGESTED LATER, WHICH DIFFER FROM THOSE GIVEN IN OUR PRIOR
OPINIONS, THEY HAVE AN IMPORTANT BEARING ON THE QUESTION NOW BEFORE US.

                             II. 

I COME THEN TO THE QUESTION WHETHER THIS COURT-MARTIAL JURISDICTION
CAN BE JUSTIFIED AS AN EXERCISE OF CONGRESS' ARTICLE I POWER TO
REGULATE THE ARMED FORCES. 

AT THE OUTSET, I CANNOT ACCEPT THE IMPLICATION OF MY BROTHER BLACK'S
OPINION THAT THIS ARTICLE I POWER WAS INTENDED TO BE UNMODIFIED BY THE
NECESSARY AND PROPER CLAUSE OF THE CONSTITUTION, (FN4) AND THAT
THEREFORE THIS POWER IS INCAPABLE OF EXPANSION UNDER CHANGING
CIRCUMSTANCES.  THE HISTORICAL EVIDENCE, IN FACT, SHOWS QUITE THE
OPPOSITE.  TRUE, THE RECORDS OF THE TIME INDICATE THAT THE FOUNDERS
SHARED A DEEP FEAR OF AN UNCHECKED MILITARY BRANCH.  BUT WHAT THEY
FEARED WAS A MILITARY BRANCH UNCHECKED BY THE LEGISLATURE, AND
SUSCEPTIBLE OF USE BY AN ARBITRARY EXECUTIVE POWER.  (FN5)  SO FAR AS I
KNOW, THERE IS NO EVIDENCE AT ALL THAT THE FOUNDERS INTENDED TO LIMIT
THE POWER OF THE PEOPLE, AS EMBODIED IN THE LEGISLATURE, TO MAKE SUCH
LAWS IN THE REGULATION OF THE LAND AND NAVAL FORCES AS ARE NECESSARY TO
THE PROPER FUNCTIONING OF THOSE FORCES.  IN OTHER WORDS, THERE IS NO
INDICATION THAT ANY SPECIAL LIMITATION ON THE POWER OF CONGRESS, AS
OPPOSED TO THE POWER OF THE EXECUTIVE, WAS SUBSUMED IN THE GRANT OF
POWER TO GOVERN THE LAND AND NAVAL FORCES.  ALEXANDER HAMILTON, INDEED,
STATED EXACTLY THE OPPOSITE:  (FN6) 

"THE AUTHORITIES ESSENTIAL TO THE COMMON DEFENSE ARE THESE:  TO RAISE
ARMIES; TO BUILD AND EQUIP FLEETS; TO PRESCRIBE RULES FOR THE
GOVERNMENT OF BOTH; TO DIRECT THEIR OPERATIONS; TO PROVIDE FOR THEIR
SUPPORT.  THESE POWERS OUGHT TO EXIST WITHOUT LIMITATION, BECAUSE IT IS
IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL
EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH
MAY BE NECESSARY TO SATISFY THEM.  THE CIRCUMSTANCES THAT ENDANGER THE
SAFETY OF NATIONS ARE INFINITE, AND FOR THIS REASON NO CONSTITUTIONAL
SHACKLES CAN WISELY BE IMPOSED ON THE POWER TO WHICH THE CARE OF IT IS
COMMITTED.  THIS POWER OUGHT TO BE COEXTENSIVE WITH ALL THE POSSIBLE
COMBINATIONS OF SUCH CIRCUMSTANCES; AND OUGHT TO BE UNDER THE DIRECTION
OF THE SAME COUNCILS WHICH ARE APPOINTED TO PRESIDE OVER THE COMMON
DEFENSE. 

     *         *  *         *         * 

"  ...  SHALL THE UNION BE CONSTITUTED THE GUARDIAN OF THE COMMON
SAFETY?  ARE FLEETS AND ARMIES AND REVENUES NECESSARY TO THIS PURPOSE? 
THE GOVERNMENT OF THE UNION MUST BE EMPOWERED TO PASS ALL LAWS, AND TO
MAKE ALL REGULATIONS WHICH HAVE RELATION TO THEM  ...  . 

     *         *         *         *         * 

"EVERY VIEW WE MAY TAKE OF THE SUBJECT, AS CANDID INQUIRERS AFTER
TRUTH, WILL SERVE TO CONVINCE US, THAT IT IS BOTH UNWISE AND DANGEROUS
TO DENY THE FEDERAL GOVERNMENT AN UNCONFINED AUTHORITY, AS TO ALL THOSE
OBJECTS WHICH ARE INTRUSTED TO ITS MANAGEMENT  ...  .  A GOVERNMENT,
THE CONSTITUTION OF WHICH RENDERS IT UNFIT TO BE TRUSTED WITH ALL THE
POWERS WHICH A FREE PEOPLE OUGHT TO DELEGATE TO ANY GOVERNMENT, WOULD
BE AN UNSAFE AND IMPROPER DEPOSITARY OF THE NATIONAL INTERESTS. 
WHEREVER THESE CAN WITH PROPRIETY BE CONFIDED, THE COINCIDENT POWERS
MAY SAFELY ACCOMPANY THEM." 

NO LESS AN AUTHORITY THAN CHIEF JUSTICE MARSHALL, IN MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, HAS TAUGHT US THAT THE NECESSARY AND PROPER
CLAUSE IS TO BE READ WITH ALL THE POWERS OF CONGRESS, SO THAT "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."  ID., AT 423. 

I THINK IT NO ANSWER TO SAY, AS MY BROTHER BLACK DOES, THAT "HAVING
RUN UP AGAINST THE STEADFAST BULWARK OF THE BILL OF RIGHTS, THE
NECESSARY AND PROPER CLAUSE CANNOT EXTEND THE SCOPE OF ART. I, CLAUSE
14."  FOR THAT SIMPLY BEGS THE QUESTION AS TO WHETHER THERE IS SUCH A
COLLISION, AN ISSUE TO WHICH I ADDRESS MYSELF BELOW. 

FOR ANALYTICAL PURPOSES, I THINK IT USEFUL TO BREAK DOWN THE ISSUE
BEFORE US INTO TWO QUESTIONS: FIRST, IS THERE A RATIONAL CONNECTION
BETWEEN THE TRIAL OF THESE ARMY WIVES BY COURT-MARTIAL AND THE POWER OF
CONGRESS TO MAKE RULES FOR THE GOVERNANCE OF THE LAND AND NAVAL FORCES;
IN OTHER WORDS, IS THERE ANY INITIAL POWER HERE AT ALL?  SECOND, IF
THERE IS SUCH A RATIONAL CONNECTION, TO WHAT EXTENT DOES THIS STATUTE,
THOUGH REASONABLY CALCULATED TO SUBSERVE AN ENUMERATED POWER, COLLIDE
WITH OTHER EXPRESS LIMITATIONS ON CONGRESSIONAL POWER; IN OTHER WORDS,
CAN THIS STATUTE, HOWEVER APPROPRIATE TO THE ARTICLE I POWER LOOKED AT
IN ISOLATION, SURVIVE AGAINST THE REQUIREMENTS OF ARTICLE III AND THE
FIFTH AND SIXTH AMENDMENTS?  I RECOGNIZE THAT THESE TWO QUESTIONS ARE
ULTIMATELY ONE AND THE SAME, SINCE THE SCOPE OF THE ARTICLE I POWER IS
NOT SEPARABLE FROM THE LIMITATIONS IMPOSED BY ARTICLE III AND THE FIFTH
AND SIXTH AMENDMENTS.  NEVERTHELESS I THINK IT WILL MAKE FOR CLARITY OF
ANALYSIS TO CONSIDER THEM SEPARATELY. 

                                   A. 

I ASSUME, FOR THE MOMENT, THEREFORE, THAT WE MAY DISREGARD OTHER
LIMITING PROVISIONS OF THE CONSTITUTION, AND EXAMINE THE ARTICLE I
POWER IN ISOLATION.  SO VIEWED, I DO NOT THINK THE COURTS-MARTIAL OF
THESE ARMY WIVES CAN BE SAID TO BE AN ARBITRARY EXTENSION OF
CONGRESSIONAL POWER. 

IT IS SUGGESTED THAT HISTORICALLY THE ARTICLE I POWER WAS INTENDED TO
EMBODY A RIGID AND UNCHANGEABLE SELF-LIMITATION, NAMELY, THAT IT COULD
APPLY ONLY TO THOSE IN THE ACTUAL SERVICE OF THE ARMED FORCES.  (FN7)
I CANNOT AGREE THAT THIS POWER HAS ANY SUCH RIGID CONTENT.  FIRST OF
ALL, THE HISTORICAL EVIDENCE PRESENTED BY THE GOVERNMENT CONVINCES ME
THAT, AT THE TIME OF THE ADOPTION OF THE CONSTITUTION, MILITARY
JURISDICTION WAS NOT THOUGHT TO BE RIGIDLY LIMITED TO UNIFORMED
PERSONNEL.  THE FACT IS THAT IT WAS TRADITIONAL FOR "RETAINERS TO THE
CAMP" TO BE SUBJECTED TO MILITARY DISCIPLINE, THAT CIVILIAN DEPENDENTS
ENCAMPED WITH THE ARMIES WERE TRADITIONALLY REGARDED AS BEING IN THAT
CLASS, AND THAT THE CONCEPT WAS NOT STRICTLY LIMITED TO TIMES OF WAR. 
(FN8) INDEED, THE BRITISH, WHO ARE NO LESS SENSITIVE THAN WE TO
MAINTAINING THE SUPREMACY OF CIVIL JUSTICE, HAVE RECENTLY ENACTED A LAW
COMPARABLE TO THE STATUTE INVOLVED HERE.  (FN9) 

THINKING, AS I DO, THAT ARTICLE I, STILL TAKING IT IN ISOLATION, MUST
BE VIEWED AS SUPPLEMENTED BY THE NECESSARY AND PROPER CLAUSE, I CANNOT
SAY THAT THE COURT-MARTIAL JURISDICTION HERE INVOLVED HAS NO RATIONAL
CONNECTION WITH THE STATED POWER.  THE GOVERNMENT, IT SEEMS TO ME, HAS
MADE A STRONG SHOWING THAT THE COURT-MARTIAL OF CIVILIAN DEPENDENTS
ABROAD HAS A CLOSE CONNECTION TO THE PROPER AND EFFECTIVE FUNCTIONING
OF OUR OVERSEAS MILITARY CONTINGENTS.  THERE IS NO NEED TO DETAIL HERE
THE VARIOUS ASPECTS OF THIS CONNECTION, WHICH HAVE BEEN WELL DEALT WITH
IN THE DISSENTING OPINION OF MY BROTHER CLARK.  SUFFICE IT TO SAY THAT
TO ALL INTENTS AND PURPOSES THESE CIVILIAN DEPENDENTS ARE PART OF THE
MILITARY COMMUNITY OVERSEAS, (FN10) ARE SO REGARDED BY THE HOST
COUNTRY, AND MUST BE SUBJECTED TO THE SAME DISCIPLINE IF THE MILITARY
COMMANDER IS TO HAVE THE POWER TO PREVENT ACTIVITIES WHICH WOULD
JEOPARDIZE THE SECURITY AND EFFECTIVENESS OF HIS COMMAND.  (FN11)  THE
MATTER HAS BEEN WELL SUMMARIZED BY GENERAL PALMER, COMMANDER OF THE
EIGHTH ARMY, STATIONED IN JAPAN: 

"JURISDICTION BY COURTS-MARTIAL OVER ALL CIVILIANS ACCOMPANYING THE
ARMY OVERSEAS IS ESSENTIAL BECAUSE OF THE MANNER IN WHICH U.S. ARMED
FORCES PERSONNEL LIVE IN THEIR OVERSEAS MILITARY COMMUNITIES.  IN THIS
COMMAND, ALMOST ALL PERSONNEL SERVING IN OR ACCOMPANYING THE U.S. ARMED
FORCES LIVE IN OR NEAR SEPARATE, CLOSELY-KNIT U.S. MILITARY COMMUNITIES
WHICH ARE BASICALLY UNDER THE CONTROL, ADMINISTRATION AND SUPERVISION
OF THE LOCAL U.S. COMMANDER WHO IS IN TURN RESPONSIVE TO THE NORMAL
MILITARY CHAIN OF COMMAND.  THIS RESPONSIBILITY WHICH IS VESTED IN THE
MILITARY COMMANDER EXTENDS TO THE ADMINISTRATION AND SUPERVISION OF THE
OPERATION AND USE OF ALL FACILITIES AND MAJOR ACTIVITIES OF THE
COMMUNITY INCLUDING THE PROPER CONTROL OF OCCUPANTS AND USERS WHICH IS
INHERENT IN SUCH SUPERVISION OVERSEAS.  IN THE ABSENCE OF A SUPPORTING
JUDICIAL SYSTEM RESPONSIVE TO THE SAME GOVERNMENT AS THE MILITARY, SUCH
AS IS THE CASE EXISTING IN THE UNITED STATES AND OVERSEAS POSSESSIONS,
AND AS THE LAW ENFORCEMENT REQUIREMENT STEMS PRIMARILY FROM THE
IMMEDIATE UNALTERABLE RESPONSIBILITIES OF THE OVERSEAS COMMANDER AND
HIS SUBORDINATE COMMANDERS, IT IS ESSENTIAL THAT THE COMMANDER BE
VESTED WITH THE LAW ENFORCEMENT AUTHORITY COMMENSURATE WITH HIS
RESPONSIBILITIES."    IT SEEMS TO ME CLEAR ON SUCH A BASIS THAT THESE
DEPENDENTS, WHEN SENT OVERSEAS BY THE GOVERNMENT, BECOME PRO TANTO A
PART OF THE MILITARY COMMUNITY.  I CANNOT SAY, THEREFORE, THAT IT IS
IRRATIONAL OR ARBITRARY FOR CONGRESS TO SUBJECT THEM TO MILITARY
DISCIPLINE.  I DO NOT DEAL NOW, OF COURSE, WITH THE PROBLEM OF
ALTERNATIVES TO COURT-MARTIAL JURISDICTION; ALL THAT NEEDS TO BE
ESTABLISHED AT THIS STAGE IS THAT, VIEWING ART. I, SEC. 8, CL. 14 IN
ISOLATION, SUBJECTION OF CIVILIAN DEPENDENTS OVERSEAS TO COURT-MARTIAL
JURISDICTION CAN IN NO WISE BE DEEMED UNRELATED TO THE POWER OF
CONGRESS TO MAKE ALL NECESSARY AND PROPER LAWS TO INSURE THE EFFECTIVE
GOVERNANCE OF OUR OVERSEAS LAND AND NAVAL FORCES. 

                                   B. 

I TURN NOW TO THE OTHER SIDE OF THE COIN.  FOR NO MATTER HOW
PRACTICAL AND HOW REASONABLE THIS JURISDICTION MIGHT BE, IT STILL
CANNOT BE SUSTAINED IF THE CONSTITUTION GUARANTEES TO THESE ARMY WIVES
A TRIAL IN AN ARTICLE III COURT, WITH INDICTMENT BY GRAND JURY AND JURY
TRIAL AS PROVIDED BY THE FIFTH AND SIXTH AMENDMENTS. 

WE RETURN, THEREFORE, TO THE ROSS QUESTION:  TO WHAT EXTENT DO THESE
PROVISIONS OF THE CONSTITUTION APPLY OUTSIDE THE UNITED STATES? 

AS I HAVE ALREADY STATED, I DO NOT THINK THAT IT CAN BE SAID THAT
THESE SAFEGUARDS OF THE CONSTITUTION ARE NEVER OPERATIVE WITHOUT THE
UNITED STATES, REGARDLESS OF THE PARTICULAR CIRCUMSTANCES.  ON THE
OTHER HAND, I CANNOT AGREE WITH THE SUGGESTION THAT EVERY PROVISION OF
THE CONSTITUTION MUST ALWAYS BE DEEMED AUTOMATICALLY APPLICABLE TO
AMERICAN CITIZENS IN EVERY PART OF THE WORLD.  FOR ROSS AND THE INSULAR
CASES DO STAND FOR AN IMPORTANT PROPOSITION, ONE WHICH SEEMS TO ME A
WISE AND NECESSARY GLOSS ON OUR CONSTITUTION.  THE PROPOSITION IS, OF
COURSE, NOT THAT THE CONSTITUTION "DOES NOT APPLY" OVERSEAS, BUT THAT
THERE ARE PROVISIONS IN THE CONSTITUTION WHICH DO NOT NECESSARILY APPLY
IN ALL CIRCUMSTANCES IN EVERY FOREIGN PLACE.  IN OTHER WORDS, IT SEEMS
TO ME THAT THE BASIC TEACHING OF ROSS AND THE INSULAR CASES IS THAT
THERE IS NO RIGID AND ABSTRACT RULE THAT CONGRESS, AS A CONDITION
PRECEDENT TO EXERCISING POWER OVER AMERICANS OVERSEAS, MUST EXERCISE IT
SUBJECT TO ALL THE GUARANTEES OF THE CONSTITUTION, NO MATTER WHAT THE
CONDITIONS AND CONSIDERATIONS ARE THAT WOULD MAKE ADHERENCE TO A
SPECIFIC GUARANTEE ALTOGETHER IMPRACTICABLE AND ANOMALOUS.  TO TAKE BUT
ONE EXAMPLE:  BALZAC V. PORTO RICO, 258 U.S. 298, IS NOT GOOD AUTHORITY
FOR THE PROPOSITION THAT JURY TRIALS NEED NEVER BE PROVIDED FOR
AMERICAN CITIZENS TRIED BY THE UNITED STATES ABROAD; BUT THE CASE IS
GOOD AUTHORITY FOR THE PROPOSITION THAT THERE IS NO RIGID RULE THAT
JURY TRIAL MUST ALWAYS BE PROVIDED IN THE TRIAL OF AN AMERICAN
OVERSEAS, IF THE CIRCUMSTANCES ARE SUCH THAT TRIAL BY JURY WOULD BE
IMPRACTICAL AND ANOMALOUS.  IN OTHER WORDS, WHAT ROSS AND THE INSULAR
CASES HOLD IS THAT THE PARTICULAR LOCAL SETTING, THE PRACTICAL
NECESSITIES, AND THE POSSIBLE ALTERNATIVES ARE RELEVANT TO A QUESTION
OF JUDGMENT, NAMELY, WHETHER JURY TRIAL SHOULD BE DEEMED A NECESSARY
CONDITION OF THE EXERCISE OF CONGRESS' POWER TO PROVIDE FOR THE TRIAL
OF AMERICANS OVERSEAS. 

I THINK THE ABOVE THOUGHT IS CRUCIAL IN APPROACHING THE CASES BEFORE
US.  DECISION IS EASY IF ONE ADOPTS THE CONSTRICTING VIEW THAT THESE
CONSTITUTIONAL GUARANTEES AS A TOTALITY DO OR DO NOT "APPLY" OVERSEAS. 
BUT, FOR ME, THE QUESTION IS WHICH GUARANTEES OF THE CONSTITUTION
SHOULD APPLY IN VIEW OF THE PARTICULAR CIRCUMSTANCES, THE PRACTICAL
NECESSITIES, AND THE POSSIBLE ALTERNATIVES WHICH CONGRESS HAD BEFORE
IT.  THE QUESTION IS ONE OF JUDGMENT, NOT OF COMPULSION.  AND SO I
AGREE WITH MY BROTHER FRANKFURTER THAT, IN VIEW OF ROSS AND THE INSULAR
CASES, WE HAVE BEFORE US A QUESTION ANALOGOUS, ULTIMATELY, TO ISSUES OF
DUE PROCESS; ONE CAN SAY, IN FACT, THAT THE QUESTION OF WHICH SPECIFIC
SAFEGUARDS OF THE CONSTITUTION ARE APPROPRIATELY TO BE APPLIED IN A
PARTICULAR CONTEXT OVERSEAS CAN BE REDUCED TO THE ISSUE OF WHAT PROCESS
IS "DUE" A DEFENDANT IN THE PARTICULAR CIRCUMSTANCES OF A PARTICULAR
CASE. 

ON THIS BASIS, I CANNOT AGREE WITH THE SWEEPING PROPOSITION THAT A
FULL ARTICLE III TRIAL, WITH INDICTMENT AND TRIAL BY JURY, IS REQUIRED
IN EVERY CASE FOR THE TRIAL OF A CIVILIAN DEPENDENT OF A SERVICEMAN
OVERSEAS.  THE GOVERNMENT, IT SEEMS TO ME, HAS MADE AN IMPRESSIVE
SHOWING THAT AT LEAST FOR THE RUN-OF-THE-MILL OFFENSES COMMITTED BY
DEPENDENTS OVERSEAS, SUCH A REQUIREMENT WOULD BE AS IMPRACTICAL AND AS
ANOMALOUS AS IT WOULD HAVE BEEN TO REQUIRE JURY TRIAL FOR BALZAC IN
PORTO RICO.  (FN12)  AGAIN, I NEED NOT GO INTO DETAILS, BEYOND STATING
THAT EXCEPT FOR CAPITAL OFFENSES, SUCH AS WE HAVE HERE, TO WHICH, IN MY
OPINION, SPECIAL CONSIDERATIONS APPLY, I AM BY NO MEANS READY TO SAY
THAT CONGRESS' POWER TO PROVIDE FOR TRIAL BY COURT-MARTIAL OF CIVILIAN
DEPENDENTS OVERSEAS IS LIMITED BY ARTICLE III AND THE FIFTH AND SIXTH
AMENDMENTS.  WHERE, IF AT ALL, THE DIVIDING LINE SHOULD BE DRAWN AMONG
CASES NOT CAPITAL, NEED NOT NOW BE DECIDED.  WE ARE CONFRONTED HERE
WITH CAPITAL OFFENSES ALONE; AND IT SEEMS TO ME PARTICULARLY UNWISE NOW
TO DECIDE MORE THAN WE HAVE TO. OUR FAR-FLUNG FOREIGN MILITARY
ESTABLISHMENTS ARE A NEW PHENOMENON IN OUR NATIONAL LIFE, AND I THINK
IT WOULD BE UNFORTUNATE WERE WE UNNECESSARILY TO FORECLOSE, AS MY FOUR
BROTHERS WOULD DO, OUR FUTURE CONSIDERATION OF THE BROAD QUESTIONS
INVOLVED IN MAINTAINING THE EFFECTIVENESS OF THESE NATIONAL OUTPOSTS,
IN THE LIGHT OF CONTINUING EXPERIENCE WITH THESE PROBLEMS. 

SO FAR AS CAPITAL CASES ARE CONCERNED, I THINK THEY STAND ON QUITE A
DIFFERENT FOOTING THAN OTHER OFFENSES.  IN SUCH CASES THE LAW IS
ESPECIALLY SENSITIVE TO DEMANDS FOR THAT PROCEDURAL FAIRNESS WHICH
INHERES IN A CIVILIAN TRIAL WHERE THE JUDGE AND TRIER OF FACT ARE NOT
RESPONSIVE TO THE COMMAND OF THE CONVENING AUTHORITY.  I DO NOT CONCEDE
THAT WHATEVER PROCESS IS "DUE" AN OFFENDER FACED WITH A FINE OR A
PRISON SENTENCE NECESSARILY SATISFIES THE REQUIREMENTS OF THE
CONSTITUTION IN A CAPITAL CASE.  THE DISTINCTION IS BY NO MEANS NOVEL,
COMPARE POWELL V. ALABAMA, 287 U.S. 45, WITH BETTS V. BRADY, 316 U.S.
455; NOR IS IT NEGLIGIBLE, BEING LITERALLY THAT BETWEEN LIFE AND
DEATH.  AND, UNDER WHAT I DEEM TO BE THE CORRECT VIEW OF ROSS AND THE
INSULAR CASES, IT IS PRECISELY THE KIND OF DISTINCTION WHICH PLAYS A
LARGE ROLE IN THE PROCESS OF WEIGHING THE COMPETING CONSIDERATIONS
WHICH LEAD TO SOUND JUDGMENT UPON THE QUESTION WHETHER CERTAIN
SAFEGUARDS OF THE CONSTITUTION SHOULD BE GIVEN EFFECT IN THE TRIAL OF
AN AMERICAN CITIZEN ABROAD.  IN FACT, THE GOVERNMENT ITSELF HAS
CONCEDED THAT ONE GRAVE OFFENSE, TREASON, PRESENTS A SPECIAL CASE:
"THE GRAVITY OF THIS OFFENSE IS SUCH THAT WE CAN WELL ASSUME THAT,
WHATEVER DIFFICULTIES MAY BE INVOLVED IN TRIAL FAR FROM THE SCENE OF
THE OFFENSE  ...  THE TRIAL SHOULD BE IN OUR COURTS."  I SEE NO REASON
FOR NOT APPLYING THE SAME PRINCIPLE TO ANY CASE WHERE A CIVILIAN
DEPENDENT STANDS TRIAL ON PAIN OF LIFE ITSELF.  THE NUMBER OF SUCH
CASES WOULD APPEAR TO BE SO NEGLIGIBLE THAT THE PRACTICAL PROBLEMS OF
AFFORDING THE DEFENDANT A CIVILIAN TRIAL WOULD NOT PRESENT INSUPERABLE
PROBLEMS. 

ON THIS NARROW GROUND I CONCUR IN THE RESULT IN THESE CASES. 

FN1  50 U.S.C. SEC. 552(11). 

FN2  THE CASES WERE ARGUED ON MAY 3, 1956, AND DECIDED ON JUNE 11,
1956. 

FN3  DOWNES V. BIDWELL, 182 U.S. 244; HAWAII V. MANKICHI, 190 U.S.
197; DORR V. UNITED STATES, 195 U.S. 138; BALZAC V. PORTO RICO, 258
U.S. 298. 

FN4  ARTICLE I, SEC. 8, CL. 18 OF THE CONSTITUTION PROVIDES THAT
CONGRESS SHALL HAVE THE POWER "TO MAKE ALL LAWS WHICH SHALL BE
NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS,
AND ALL OTHER POWERS VESTED BY THIS CONSTITUTION IN THE GOVERNMENT OF
THE UNITED STATES, OR IN ANY DEPARTMENT OR OFFICER THEREOF." 

FN5  THUS, PROPOSALS TO LIMIT THE SIZE OF THE STANDING ARMY IN TIMES
OF PEACE TO A SPECIFIC NUMBER OF MEN IN THE CONSTITUTION WERE DEFEATED
AT THE CONSTITUTIONAL CONVENTION.  SEE 5 ELLIOT'S DEBATES 442-443 ("NO
ROOM FOR  ...  DISTRUST OF THE REPRESENTATIVES OF THE PEOPLE").  SEE
ALSO THE FEDERALIST, NO. 24:  "THE WHOLE POWER OF RAISING ARMIES WAS
LODGED IN THE LEGISLATURE, NOT IN THE EXECUTIVE; ...  THIS LEGISLATURE
WAS TO BE A POPULAR BODY, CONSISTING OF THE REPRESENTATIVES OF THE
PEOPLE PERIODICALLY ELECTED  ...  ." 

FN6  THE FEDERALIST, NO. 23. 

FN7  TO BE SURE, THE OPINION DOES "RECOGNIZE THAT THERE MIGHT BE
CIRCUMSTANCES WHERE A PERSON COULD BE 'IN' THE ARMED SERVICES FOR
PURPOSES OF ART. I, SEC. 8, CLAUSE 14 EVEN THOUGH HE HAD NOT FORMALLY
BEEN INDUCTED INTO THE MILITARY OR DID NOT WEAR A UNIFORM."  IT
CONTINUES, HOWEVER, TO STATE CATEGORICALLY THAT "WIVES, CHILDREN AND
OTHER DEPENDENTS OF SERVICEMEN CANNOT BE PLACED IN THAT CATEGORY  ...
." 

FN8  THE ESSENTIAL ELEMENT WAS THOUGHT TO BE, NOT SO MUCH THAT THERE
BE WAR, IN THE TECHNICAL SENSE, BUT RATHER THAT THE FORCES AND THEIR
RETAINERS BE "IN THE FIELD."  THE LATTER CONCEPT, IN TURN, WOULD SEEM
TO HAVE EXTENDED TO ANY AREA WHERE THE NATURE OF THE MILITARY POSITION
AND THE ABSENCE OF CIVIL AUTHORITY MADE MILITARY CONTROL OVER THE WHOLE
CAMP APPROPRIATE.  SEE, IN GENERAL, BLUMENTHAL, WOMEN CAMP FOLLOWERS OF
THE AMERICAN REVOLUTION.  THE BRITISH HISTORY IS THE SAME.  SEE, IN
PARTICULAR, SAMUEL, HISTORICAL ACCOUNT OF THE BRITISH ARMY AND OF THE
LAW MILITARY, PP. 691-692. 

FN9  ARMY ACT, 1955, 3 & 4 ELIZ.  II, C. 18, SEC. 209; AND SEE FIFTH
SCHEDULE, ID., AT 219. 

FN10  THESE DEPENDENTS ARE TAKEN ABROAD ONLY BECAUSE THEIR PRESENCE
IS DEEMED NECESSARY TO THE MORALE AND PROPER FUNCTIONING OF OUR ARMIES
OVERSEAS.  THEY ARE TRANSPORTED AT GOVERNMENT EXPENSE, CARRY PASSPORTS
IDENTIFYING THEM AS SERVICE DEPENDENTS, ARE ADMITTED TO THE HOST
COUNTRY WITHOUT VISAS, USE MILITARY PAYMENT CERTIFICATES, AND RECEIVE
THE BENEFIT OF ARMY POSTAL FACILITIES AND PRIVILEGES.  THEY ENJOY THE
TAX EXEMPTIONS AND CUSTOMS BENEFITS OF THE MILITARY.  THEY ARE TREATED
AT SERVICE HOSPITALS, THEIR CHILDREN GO TO SCHOOLS MAINTAINED BY THE
GOVERNMENT, AND THEY SHARE WITH THE MILITARY THE RECREATIONAL
FACILITIES PROVIDED BY THE GOVERNMENT.  THEY ARE HOUSED AND FURNISHED
HEAT, LIGHT, FUEL, WATER, AND TELEPHONE SERVICE BY THE MILITARY, AS
WELL AS RECEIVING TRANSPORTATION, FOOD, AND CLOTHING FROM MILITARY
SOURCES. 

FN11  THIS NECESSITY IS PARTICULARLY ACUTE WITH REGARD TO PECULIARLY
"MILITARY" AND "LOCAL" OFFENSES WHICH MUST BE DEALT WITH SWIFTLY AND
EFFECTIVELY.  THUS SECURITY REGULATIONS AT THESE MILITARY INSTALLATIONS
MUST BE ENFORCED AGAINST CIVILIAN DEPENDENTS AS WELL AS SERVICEMEN; THE
SAME IS TRUE OF BASE TRAFFIC VIOLATIONS, BLACK MARKETEERING, AND MISUSE
OF MILITARY CUSTOMS AND POST-EXCHANGE PRIVILEGES. 

FN12  THE PRACTICAL CIRCUMSTANCES REQUIRING SOME SORT OF DISCIPLINARY
JURISDICTION HAVE ALREADY BEEN ADVERTED TO, SUPRA, PP. 71-73.  THESE
CIRCUMSTANCES TAKE ON WEIGHT WHEN VIEWED IN LIGHT OF THE ALTERNATIVES
AVAILABLE TO CONGRESS - CERTAINLY A CRUCIAL QUESTION IN WEIGHING THE
NEED FOR DISPENSING WITH PARTICULAR CONSTITUTIONAL GUARANTEES ABROAD. 
WHAT ARE THESE ALTERNATIVES?  (1)  ONE IS TO TRY ALL OFFENSES COMMITTED
BY CIVILIAN DEPENDENTS ABROAD IN THE UNITED STATES.  BUT THE PRACTICAL
PROBLEMS IN THE WAY OF SUCH A CHOICE ARE OBVIOUS AND OVERWHELMING.  TO
REQUIRE THE TRANSPORTATION HOME FOR TRIAL OF EVERY PETTY BLACK
MARKETEER OR VIOLATOR OF SECURITY REGULATIONS WOULD BE A RIDICULOUS
BURDEN ON THE GOVERNMENT, QUITE ASIDE FROM THE PROBLEMS OF PERSUADING
FOREIGN WITNESSES TO MAKE THE TRIP AND OF PRESERVING EVIDENCE.  IT CAN
FURTHER BE DEEMED DOUBTFUL IN THE EXTREME WHETHER FOREIGN GOVERNMENTS
WOULD PERMIT CRIMES PUNISHABLE UNDER LOCAL LAW TO BE TRIED THOUSANDS OF
MILES AWAY IN THE UNITED STATES.  (2)  CIVILIAN TRIAL OVERSEAS BY THE
UNITED STATES ALSO PRESENTS CONSIDERABLE DIFFICULTIES.  IF JURIES ARE
REQUIRED, THE PROBLEM OF JURY RECRUITMENT WOULD BE DIFFICULT. 
FURTHERMORE, IT IS INDEED DOUBTFUL WHETHER SOME FOREIGN GOVERNMENTS
WOULD ACCEDE TO THE CREATION OF EXTRATERRITORIAL UNITED STATES CIVIL
COURTS WITHIN THEIR TERRITORIES - COURTS WHICH BY IMPLICATION WOULD
REFLECT ON THE FAIRNESS OF THEIR OWN TRIBUNALS AND WHICH WOULD SMACK
UNPLEASANTLY OF CONSULAR COURTS SET UP UNDER COLONIAL "CAPITULATIONS." 
(3)  THE ALTERNATIVE OF TRIAL IN FOREIGN COURTS, IN AT LEAST SOME
INSTANCES, IS NO MORE PALATABLE.  QUITE ASIDE FROM THE FACT THAT IN
SOME COUNTRIES WHERE WE STATION TROOPS THE PROTECTIONS GRANTED TO
CRIMINAL DEFENDANTS COMPARE UNFAVORABLY WITH OUR OWN MINIMUM STANDARDS,
THE FACT WOULD REMAIN THAT MANY OF THE CRIMES INVOLVED - PARTICULARLY
BREACHES OF SECURITY - ARE NOT OFFENSES UNDER FOREIGN LAW AT ALL, AND
THUS WOULD GO COMPLETELY UNPUNISHED.  ADD TO THIS THE UNDESIRABILITY OF
FOREIGN POLICE CARRYING OUT INVESTIGATIONS IN OUR MILITARY
INSTALLATIONS ABROAD, AND IT SEEMS TO ME CLEAR THAT THIS ALTERNATIVE
DOES NOT COMMEND ITSELF. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

THE COURT TODAY RELEASES TWO WOMEN FROM PROSECUTION THOUGH THE
EVIDENCE SHOWS THAT THEY BRUTALLY KILLED THEIR HUSBANDS, BOTH AMERICAN
SOLDIERS, WHILE STATIONED WITH THEM IN QUARTERS FURNISHED BY OUR ARMED
FORCES ON ITS MILITARY INSTALLATIONS IN FOREIGN LANDS.  IN TURNING
THESE WOMEN FREE, IT DECLARES UNCONSTITUTIONAL AN IMPORTANT SECTION OF
AN ACT OF CONGRESS GOVERNING OUR ARMED FORCES.  FURTHERMORE, FOUR OF MY
BROTHERS WOULD SPECIFICALLY OVERRULE AND TWO WOULD IMPAIR THE LONG
RECOGNIZED VITALITY OF AN OLD AND RESPECTED PRECEDENT IN OUR LAW, THE
CASE OF IN RE ROSS, 140 U.S. 453 (1891), CITED BY THIS COURT WITH
APPROVAL IN MANY OPINIONS AND AS LATE AS 1929 BY A UNANIMOUS COURT
(FN1) IN EX PARTE BAKELITE CORP., 279 U.S. 438, 451.  AND, FINALLY, THE
COURT REVERSES, SETS ASIDE, AND OVERRULES TWO MAJORITY OPINIONS AND
JUDGMENTS OF THIS COURT IN THESE SAME CASES, REPORTED IN 351 U.S., AT
470 AND 487, AND ENTERED ON JUNE 11, 1956, LESS THAN 12 MONTHS AGO.  IN
SUBSTITUTE THEREFOR IT ENTERS NO OPINION WHATEVER FOR THE COURT.  IT IS
UNABLE TO MUSTER A MAJORITY.  INSTEAD, THERE ARE HANDED DOWN THREE
OPINIONS.  BUT, WORST OF ALL, IT GIVES NO AUTHORITATIVE GUIDANCE AS TO
WHAT, IF ANYTHING, THE EXECUTIVE OR THE CONGRESS MAY DO TO REMEDY THE
DISTRESSING SITUATION IN WHICH THEY NOW FIND THEMSELVES. 

MR. JUSTICE BURTON AND I REMAIN CONVINCED THAT THE FORMER OPINIONS OF
THE COURT ARE CORRECT AND THAT THEY SET FORTH VALID CONSTITUTIONAL
DOCTRINE UNDER THE LONG-RECOGNIZED CASES OF THIS COURT.  THE OPINIONS
WERE NEITHER WRITTEN NOR AGREED TO IN HASTE AND THEY REFLECT THE
CONSENSUS OF THE MAJORITY REACHED AFTER THOROUGH DISCUSSION AT MANY
CONFERENCES.  IN FACT, THE CASES WERE HERE LONGER BOTH BEFORE AND AFTER
ARGUMENT THAN MANY OF THE CASES WE DECIDE.  WE ADHERE TO THE VIEWS
THERE EXPRESSED SINCE WE ARE CONVINCED THAT THROUGH THEM WE WERE
NEITHER "MORTGAGING THE FUTURE," AS IS CLAIMED, NOR FORECLOSING THE
PRESENT, AS DOES THE JUDGMENT TODAY.  WE DO NOT INCLUDE A DISCUSSION OF
THE THEORY UPON WHICH THOSE FORMER JUDGMENTS WERE ENTERED BECAUSE WE
ARE SATISFIED WITH ITS HANDLING IN THE EARLIER OPINIONS.  SEE 351 U.S.,
AT 470 AND 487. 

I. 

BEFORE DISCUSSING THE POWER OF THE CONGRESS UNDER ART. I, SEC. 8, CL.
14, OF THE CONSTITUTION IT IS WELL TO TAKE OUR BEARINGS.  THESE CASES
DO NOT INVOLVE THE JURISDICTION OF A MILITARY COURT-MARTIAL SITTING
WITHIN THE TERRITORIAL LIMITS OF THE UNITED STATES.  NOR ARE THEY
CONCERNED WITH THE POWER OF THE GOVERNMENT TO MAKE TREATIES OR THE
LEGAL RELATIONSHIP BETWEEN TREATIES AND THE CONSTITUTION.  NOR ARE THEY
CONCERNED WITH THE POWER OF CONGRESS TO PROVIDE FOR THE TRIAL OF
AMERICANS SOJOURNING, TOURING, OR TEMPORARILY RESIDING IN FOREIGN
NATIONS.  ESSENTIALLY, WE ARE TO DETERMINE ONLY WHETHER THE CIVILIAN
DEPENDENTS OF AMERICAN SERVICEMEN MAY CONSTITUTIONALLY BE TRIED BY AN
AMERICAN MILITARY COURT-MARTIAL IN A FOREIGN COUNTRY FOR AN OFFENSE
COMMITTED IN THAT COUNTRY.   CONGRESS HAS PROVIDED IN ARTICLE 2(11) OF
THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 109, 50 U.S.C. SEC.
552(11), THAT THEY SHALL BE SO TRIED IN THOSE COUNTRIES WITH WHICH WE
HAVE AN IMPLEMENTING TREATY.  THE QUESTION THEREFORE IS WHETHER THIS
ENACTMENT IS REASONABLY RELATED TO THE POWER OF CONGRESS "TO MAKE RULES
FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES."  U.S.
CONST., ART. I, SEC. 8, CL. 14. 

HISTORICALLY, THE MILITARY HAS ALWAYS EXERCISED JURISDICTION BY COURT
MARTIAL OVER CIVILIANS ACCOMPANYING ARMIES IN TIME OF WAR.  OVER 40
YEARS AGO THIS JURISDICTION WAS DECLARED BY CONGRESS TO INCLUDE "ALL
PERSONS ACCOMPANYING OR SERVING WITH THE ARMIES OF THE UNITED STATES
WITHOUT THE TERRITORIAL JURISDICTION OF THE UNITED STATES."  (FN2)
ART. OF WAR 2(D), 39 STAT. 651.  ARTICLE 2(11) OF THE PRESENT UNIFORM
CODE OF MILITARY JUSTICE WAS TAKEN WITHOUT MATERIAL CHANGE FROM THIS
PROVISION OF THE ARTICLES OF WAR.  AT THE TIME OF ENACTMENT OF THE
EARLIER PROVISION CONGRESS WAS PLAINLY CONCERNED WITH THE MAINTENANCE
OF DISCIPLINE AND MORALE OF AMERICAN EXPEDITIONARY FORCES COMPOSED OF
BOTH MILITARY AND CIVILIAN PERSONNEL.  AS POINTED OUT IN THE SENATE
REPORT TO THE SIXTY-FOURTH CONGRESS AT THE TIME ARTICLE 2(D) WAS
ADOPTED: 

"THE EXISTING ARTICLES ARE FURTHER DEFECTIVE IN THAT THEY DO NOT
PERMIT THE DISCIPLINING OF THESE THREE CLASSES OF CAMP FOLLOWERS IN
TIME OF PEACE IN PLACES TO WHICH THE CIVIL JURISDICTION OF THE UNITED
STATES DOES NOT EXTEND AND WHERE IT IS CONTRARY TO INTERNATIONAL POLICY
TO SUBJECT SUCH PERSONS TO THE LOCAL JURISDICTION, OR WHERE, FOR OTHER
REASONS, THE LAW OF THE LOCAL JURISDICTION IS NOT APPLICABLE, THUS
LEAVING THESE CLASSES PRACTICALLY WITHOUT LIABILITY TO PUNISHMENT FOR
THEIR UNLAWFUL ACTS UNDER SUCH CIRCUMSTANCES - AS, FOR EXAMPLE,  ...
WHERE SUCH FORCES SO ACCOMPANIED ARE ENGAGED IN THE NONHOSTILE
OCCUPATION OF FOREIGN TERRITORY, AS WAS THE CASE DURING THE
INTERVENTION OF 1906-7 IN CUBA."  S. REP. NO. 130, 64TH CONG., 1ST
SESS. 37-38. 

SINCE THAT TIME THE POWER OF CONGRESS TO MAKE CIVILIANS AMENABLE TO
MILITARY JURISDICTION UNDER SUCH CIRCUMSTANCES HAS BEEN CONSIDERED AND
SUSTAINED BY THIS COURT AND OTHER FEDERAL COURTS IN A NUMBER OF CASES. 
IN MADSEN V. KINSELLA, 343 U.S. 341 (1952), WE SUSTAINED THE
JURISDICTION OF A MILITARY COMMISSION TO TRY A CIVILIAN WIFE FOR THE
MURDER OF HER HUSBAND IN GERMANY IN 1949.  UNLIKE MRS. SMITH, THE
PETITIONER IN MADSEN CONTENDED THAT A MILITARY COURT-MARTIAL HAD
EXCLUSIVE JURISDICTION TO TRY HER PURSUANT TO ARTICLE OF WAR 2(D), THE
PREDECESSOR OF ARTICLE 2(11).  IN UPHOLDING THE CONSTITUTIONALITY OF
TRIAL BY A MILITARY COMMISSION, WE POINTED OUT THAT ITS JURISDICTION
WAS CONCURRENT WITH THAT OF THE MILITARY COURT-MARTIAL, 343 U.S., AT
345, AND THAT THE JURISDICTION OF BOTH STEMMED DIRECTLY FROM ARTICLE
2(D), 343 U.S., AT 361. 

IT IS CONTENDED THAT NO HOLDING ON THE VALIDITY OF COURT-MARTIAL
JURISDICTION OVER CIVILIANS WAS NECESSARY TO OUR DECISION IN MADSEN AND
THAT THE CASE ITSELF IS DISTINGUISHABLE BECAUSE OCCUPIED TERRITORY WAS
INVOLVED AND HENCE THE ACTION OF CONGRESS COULD BE SUPPORTED UNDER THE
WAR POWER.  IT IS TRUE THAT OUR REFERENCE TO CONCURRENT COURT-MARTIAL
JURISDICTION - WHEN BOTH PETITIONER AND THE GOVERNMENT AGREED TO IT -
WAS A CONCOMITANT TO THAT DECISION, BUT OUR RECOGNITION OF THE POWER OF
CONGRESS TO AUTHORIZE MILITARY TRIAL OF CIVILIANS UNDER THE
CIRCUMSTANCES PROVIDED FOR IN ARTICLE 2(D) WAS ESSENTIAL TO THE
JUDGMENT.  343 U.S., AT 361.  MADSEN WAS FACTUALLY VERY SIMILAR TO THE
PRESENT CASE, AND IN TERMS OF THE RELEVANT CONSIDERATIONS INVOLVED IT
IS PRACTICALLY INDISTINGUISHABLE.  IN MADSEN, AS HERE, THE CRIME
INVOLVED WAS MURDER OF A SERVICEMAN BY A DEPENDENT WIFE LIVING AS A
CIVILIAN WITH OUR ARMED FORCES IN A FOREIGN COUNTRY.  IN BOTH CASES
JURISDICTION WAS EXERCISED BY A MILITARY TRIBUNAL PURSUANT TO AN ACT OF
CONGRESS AUTHORIZING SUCH JURISDICTION OVER ALL PERSONS ACCOMPANYING
THE ARMED FORCES OUTSIDE THE TERRITORIAL JURISDICTION OF THE UNITED
STATES.  THE DISTINCTION THAT IN ONE CASE THE TRIAL WAS BY COURT
MARTIAL AND IN THE OTHER BY A MILITARY COMMISSION IS INSUBSTANTIAL. 
THE CONTENTION THAT JURISDICTION COULD BE SUSTAINED IN MADSEN UNDER THE
WAR POWER OF CONGRESS BUT THAT THIS POWER IS UNAVAILABLE TO AUTHORIZE
JURISDICTION IN SMITH IS LIKEWISE WITHOUT MERIT.  (FN3)  ASIDE FROM THE
FACT THAT THIS COURT HAS NEVER RESTRICTED SO NARROWLY THE ACTION THAT
CONGRESS MIGHT TAKE UNDER THE WAR POWER, SEE ASHWANDER V. T.V.A., 297
U.S. 288 (1936), AND SILESIAN-AMERICAN CORP. V. CLARK, 332 U.S. 469
(1947), THERE IS AS MUCH, IF NOT MORE, JUSTIFICATION FOR EMPLOYMENT OF
THE WAR POWER IN JAPAN IN 1952 AS IN GERMANY IN 1949.  AT THE TIME MRS.
SMITH'S CRIME WAS COMMITTED, JAPAN WAS THE LOGISTICS AND AVIATION BASE
FOR ACTUAL HOSTILITIES THEN BEING WAGED IN KOREA, JUST ACROSS THE SEA
OF JAPAN.  AND IN 1949, GERMANY, AFTER FOUR YEARS OF PEACEFUL AND
UNEVENTFUL OCCUPATION, COULD HARDLY BE CONSIDERED AN AREA WHERE
CONGRESS COULD ACT ONLY UNDER ITS WAR POWER.  BUT THE SALIENT FEATURE
COMMON TO BOTH COUNTRIES WAS THAT THE PROBLEMS OF MAINTAINING CONTROL,
MORALE, AND DISCIPLINE OF OUR MILITARY CONTINGENTS LOCATED THERE WERE
SUBSTANTIALLY IDENTICAL.  THESE PROBLEMS WERE NOT APPRECIABLY AFFECTED
BY THE FACT THAT ONE INSTANCE OCCURRED DURING AN OCCUPATION AND THE
OTHER SHORTLY AFTER A PEACE TREATY HAD BEEN SIGNED. 

EARLIER, IN DUNCAN V. KAHANAMOKU, 327 U.S. 304, 313 (1946), THIS
COURT HAD RECOGNIZED THE "WELL-ESTABLISHED POWER OF THE MILITARY" TO
EXERCISE JURISDICTION OVER PERSONS DIRECTLY CONNECTED WITH THE ARMED
FORCES, AND THIS POWER HAS BEEN REPEATEDLY RECOGNIZED IN CASES DECIDED
IN THE LOWER FEDERAL COURTS.  SEE UNITED STATES EX REL. MOBLEY V.
HANDY, 176 F.2D 491 (1949); PERLSTEIN V. UNITED STATES, 151 F.2D 167
(1945); GREWE V. FRANCE, 75 F. SUPP. 433 (1948); IN RE BERUE, 54 F.
SUPP. 252 (1944); HINES V. MIKELL, 259 F. 28 (1919); EX PARTE JOCHEN,
257 F. 200 (1919); EX PARTE FALLS, 251 F. 415 (1918); EX PARTE GERLACH,
247 F. 616 (1917).  SEE ALSO UNITED STATES V. BURNEY, 6 U.S.C.M.A. 776,
21 C.M.R. 98 (1956). 

IN CONSIDERING WHETHER ARTICLE 2(11) IS REASONABLY NECESSARY TO THE
POWER OF CONGRESS TO PROVIDE FOR THE GOVERNMENT OF THE LAND AND NAVAL
FORCES WE NOTE, AS RELEVANT, CERTAIN OTHER CONSIDERATIONS.  AS A NATION
WE HAVE FOUND IT NECESSARY TO THE PRESERVATION OF OUR SECURITY IN THE
PRESENT DAY TO MAINTAIN AMERICAN FORCES IN 63 FOREIGN COUNTRIES
THROUGHOUT THE WORLD.  IN RECENT YEARS THE SERVICES HAVE RECOGNIZED
THAT THE PRESENCE OF WIVES AND FAMILIES AT MANY OF THESE FOREIGN BASES
IS ESSENTIAL TO THE MAINTENANCE OF THE MORALE OF OUR FORCES.  THIS
POLICY HAS RECEIVED LEGISLATIVE APPROVAL AND THE TREMENDOUS EXPENSE TO
THE GOVERNMENT INVOLVED IN THE TRANSPORTATION AND ACCOMMODATION OF
DEPENDENTS OVERSEAS IS CONSIDERED MONEY WELL SPENT.  IT IS NOT FOR US
TO QUESTION THIS JOINT EXECUTIVE AND LEGISLATIVE DETERMINATION.  THE
RESULT, HOWEVER, HAS BEEN THE CREATION OF AMERICAN COMMUNITIES OF MIXED
CIVILIAN AND MILITARY POPULATION ON MILITARY BASES THROUGHOUT THE
WORLD.  THESE CIVILIANS ARE DEPENDENT ON THE MILITARY FOR FOOD,
HOUSING, MEDICAL FACILITIES, TRANSPORTATION, AND PROTECTION.  OFTEN
THEY LIVE IN DAILY ASSOCIATION IN CLOSELY KNIT GROUPS NEARLY ISOLATED
FROM THEIR SURROUNDINGS.  IT CANNOT BE DENIED THAT DISCIPLINARY
PROBLEMS HAVE BEEN MULTIPLIED AND COMPLICATED BY THIS INFLUX OF
CIVILIANS ONTO MILITARY BASES, AND CONGRESS HAS PROVIDED THAT MILITARY
PERSONNEL AND CIVILIANS ALIKE SHALL BE GOVERNED BY THE SAME LAW
ADMINISTERED BY THE SAME COURTS. 

CONCERNING THE EFFECT OF CIVILIAN ACTIVITIES UNDER SUCH CIRCUMSTANCES
ON THE DISCIPLINE AND MORALE OF THE ARMED SERVICES, WE HAVE FOUND NO
BETTER STATEMENT THAN THAT OF JUDGE LATIMER OF THE UNITED STATES COURT
OF MILITARY APPEALS WHERE THE CONSTITUTIONALITY OF ARTICLE 2(11) WAS
UPHELD IN THE RECENT CASE OF UNITED STATES V. BURNEY, 6 U.S.C.M.A.
776, 21 C.M.R. 98 (1956).  REFERRING TO THE COMBAT READINESS OF AN
OVERSEAS COMMAND, JUDGE LATIMER STATED: 

"IT IS READILY ASCERTAINABLE THAT BLACK MARKET TRANSACTIONS,
TRAFFICKING IN HABIT-FORMING DRUGS, UNLAWFUL CURRENCY CIRCULATION,
PROMOTION OF ILLICIT SEX RELATIONS, AND A MYRIAD OF OTHER CRIMES WHICH
MAY BE PERPETRATED BY PERSONS CLOSELY CONNECTED WITH ONE OF THE
SERVICES, COULD HAVE A DIRECT AND FORCEFUL IMPACT ON THE EFFICIENCY AND
DISCIPLINE OF THE COMMAND.  ONE NEED ONLY VIEW THE VOLUME OF BUSINESS
TRANSACTED BY MILITARY COURTS INVOLVING, FOR INSTANCE, THE SALE AND USE
OF NARCOTICS IN THE FAR EAST, TO BE SHOCKED INTO A REALIZATION OF THE
TRUTH OF THE PREVIOUS STATEMENT.  IF THE SERVICES HAVE NO POWER WITHIN
THEIR OWN SYSTEM TO PUNISH THAT TYPE OF OFFENDER, THEN INDEED OVERSEAS
CRIME BETWEEN CIVILIANS AND MILITARY PERSONNEL WILL FLOURISH AND THAT
AMONGST CIVILIANS WILL THRIVE UNABATED AND UNTOUCHED.  A FEW CIVILIANS
PLYING AN UNLAWFUL TRADE IN MILITARY COMMUNITIES CAN, WITHOUT FAIL,
IMPAIR THE DISCIPLINE AND COMBAT READINESS OF A UNIT.  AT BEST, THE
DETECTION AND PROSECUTION OF CRIME IS A DIFFICULT AND TIME-CONSUMING
BUSINESS, AND WE HAVE GRAVE DOUBTS THAT, IN FARAWAY LANDS, THE FOREIGN
GOVERNMENTS WILL HELP THE CAUSE OF A MILITARY COMMANDER BY
INVESTIGATING THE SELLER OR USER OF HABIT-FORMING DRUGS, OR ASSIST HIM
IN DETERRING AMERICAN CIVILIANS FROM STEALING FROM THEIR COMPATRIOTS,
OR THEIR GOVERNMENT, OR FROM MISUSING ITS PROPERTY."  6 U.S.C.M.A., AT
800, 21 C.M.R., AT 122. 

IN ADDITION, IT IS REASONABLE TO PROVIDE THAT THE MILITARY COMMANDER
WHO BEARS FULL RESPONSIBILITY FOR THE CARE AND SAFETY OF THOSE
CIVILIANS ATTACHED TO HIS COMMAND SHOULD ALSO HAVE AUTHORITY TO
REGULATE THEIR CONDUCT.  MOREOVER, ALL MEMBERS OF AN OVERSEAS
CONTINGENT SHOULD RECEIVE EQUAL TREATMENT BEFORE THE LAW.  IN THEIR
ACTUAL DAY-TO-DAY LIVING THEY ARE A PART OF THE SAME UNIQUE
COMMUNITIES, AND THE SAME LEGAL CONSIDERATIONS SHOULD APPLY TO ALL. 
THERE IS NO REASON FOR ACCORDING TO ONE CLASS A DIFFERENT TREATMENT
THAN IS ACCORDED TO ANOTHER.  THE EFFECT OF SUCH A DOUBLE STANDARD ON
DISCIPLINE, EFFICIENCY, AND MORALE CAN EASILY BE SEEN. 

IN UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S. 11 (1955), THE
COURT RECOGNIZED THIS NECESSITY.   THERE ART. I, SEC. 8, CL. 14, WAS
"GIVEN ITS NATURAL MEANING" AND "WOULD SEEM TO RESTRICT COURT-MARTIAL
JURISDICTION TO PERSONS WHO ARE ACTUALLY MEMBERS OR PART OF THE ARMED
FORCES."  ID., AT 15.  THE COURT WENT ON TO SAY: 

"IT IS IMPOSSIBLE TO THINK THAT THE DISCIPLINE OF THE ARMY IS GOING
TO BE DISRUPTED, ITS MORALE IMPAIRED, OR ITS ORDERLY PROCESSES
DISTURBED, BY GIVING EX-SERVICEMEN THE BENEFIT OF A CIVILIAN COURT
TRIAL WHEN THEY ARE ACTUALLY CIVILIANS  ...  .  COURT-MARTIAL
JURISDICTION SPRANG FROM THE BELIEF THAT WITHIN THE MILITARY RANKS
THERE IS NEED FOR A PROMPT, READY-AT-HAND MEANS OF COMPELLING OBEDIENCE
AND ORDER.  BUT ARMY DISCIPLINE WILL NOT BE IMPROVED BY COURT
MARTIALING RATHER THAN TRYING BY JURY SOME CIVILIAN EX-SOLDIER WHO HAS
BEEN WHOLLY SEPARATED FROM THE SERVICE FOR MONTHS, YEARS OR PERHAPS
DECADES.  CONSEQUENTLY CONSIDERATIONS OF DISCIPLINE PROVIDE NO EXCUSE
FOR NEW EXPANSION OF COURT-MARTIAL JURISDICTION AT THE EXPENSE OF THE
NORMAL AND CONSTITUTIONALLY PREFERABLE SYSTEM OF TRIAL BY JURY."  ID.,
AT 22-23. 

THESE WOMEN WERE AS MUCH "A PART" OF THE MILITARY INSTALLATION AS
WERE THEIR HUSBANDS.  UPON ATTACK BY AN ENEMY THEY WOULD BE SO TREATED;
ALL FOREIGN GOVERNMENTS SO RECOGNIZED THEM AT ALL TIMES; AND, IN
ADDITION, IT HAS BEEN CLEARLY SHOWN, UNLIKE IN TOTH, THAT "THE
DISCIPLINE OF THE ARMY IS GOING TO BE DISRUPTED, ITS MORALE IMPAIRED,
OR ITS ORDERLY PROCESSES DISTURBED" BY EXCLUDING THEM FROM THE
PROVISIONS OF THE UNIFORM CODE.  EVERY SINGLE ONE OF OUR MAJOR MILITARY
COMMANDERS OVER THE WORLD HAS FILED A STATEMENT TO THIS EFFECT IN THIS
CASE.  WE SHOULD NOT SUBSTITUTE OUR VIEWS AS TO THIS NECESSITY FOR THE
VIEWS OF THOSE CHARGED WITH THE RESPONSIBILITY OF THE PROTECTION OF
SUCH FAR-FLUNG OUTPOSTS OF THE FREE WORLD.  THE FORMER MINORITY,
HOWEVER, REPUDIATES THIS UNDERLYING BASIS OF THE OPINION IN TOTH,
NAMELY, THAT WHERE DISCIPLINARY MEASURES ARE NECESSARY TO THE
REGULATION OF THE ARMED FORCES THE CONGRESS DOES HAVE CONSTITUTIONAL
POWER TO MAKE RULES.  IN MY OPINION THE RULES IT HAS MADE ARE NECESSARY
TO THE REGULATION OF THE LAND AND NAVAL FORCES AND THE MEANS CHOSEN,
THE UNIFORM CODE, IS IN NO WAY AN UNREASONABLE ONE. 

THERE REMAINS THE FURTHER CONSIDERATION OF WHETHER THIS PROVISION IS
"'THE LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED.'"  UNITED
STATES EX REL. TOTH V. QUARLES, SUPRA, AT 23.  THIS IS THE STRICT
STANDARD BY WHICH WE DETERMINE THE SCOPE OF CONSTITUTIONAL POWER OF
CONGRESS TO AUTHORIZE TRIAL BY COURT-MARTIAL.  A STUDY OF THE PROBLEM
CLEARLY INDICATES THAT THE USE OF THE UNIFORM CODE OF MILITARY JUSTICE
WAS REALLY THE ONLY PRACTICABLE ALTERNATIVE AVAILABLE. 

WHILE IT WAS CONCEDED BEFORE THIS COURT THAT CONGRESS COULD HAVE
ESTABLISHED A SYSTEM OF TERRITORIAL OR CONSULAR COURTS TO TRY OFFENSES
COMMITTED BY CIVILIAN DEPENDENTS ABROAD, THE ACTION OF FOUR OF MY
BROTHERS WHO WOULD OVERRULE AND TWO WHO WOULD IMPAIR THE VITALITY OF IN
RE ROSS, SUPRA, PLACES THIS ALTERNATIVE IN JEOPARDY.  TERRITORIAL
COURTS HAVE BEEN USED BY OUR GOVERNMENT FOR OVER A CENTURY AND HAVE
ALWAYS RECEIVED THE SANCTION OF THIS COURT UNTIL TODAY.  HOWEVER, IN
THE LIGHT OF ALL OF THE OPINIONS OF THE FORMER MINORITY HERE, THE USE
OF A SYSTEM OF TERRITORIAL OR CONSULAR COURTS IS NOW OUT OF THE
QUESTION.  MOREOVER, CONGRESS PROBABLY HAD CONCLUDED TO ABANDON THIS
SYSTEM BEFORE THE UNIFORM CODE WAS ADOPTED, SINCE A SHORT TIME
THEREAFTER THE JURISDICTION OF THE LAST OF OUR TERRITORIAL OR CONSULAR
COURTS WAS TERMINATED.  70 STAT. 773. 

ANOTHER ALTERNATIVE THE CONGRESS MIGHT HAVE ADOPTED WAS THE
ESTABLISHMENT OF FEDERAL COURTS PURSUANT TO ARTICLE III OF THE
CONSTITUTION.  THESE CONSTITUTIONAL COURTS WOULD HAVE TO SIT IN EACH OF
THE 63 FOREIGN COUNTRIES WHERE AMERICAN TROOPS ARE STATIONED AT THE
PRESENT TIME.  ASIDE FROM THE FACT THAT THE CONSTITUTION HAS NEVER BEEN
INTERPRETED TO COMPEL SUCH AN UNDERTAKING, IT WOULD SEEM OBVIOUS THAT
IT WOULD BE MANIFESTLY IMPOSSIBLE.  THE PROBLEM OF THE USE OF JURIES IN
COMMON-LAW COUNTRIES ALONE SUFFICES TO ILLUSTRATE THIS.  OBVIOUSLY THE
JURY COULD NOT BE LIMITED TO THOSE WHO LIVE WITHIN THE MILITARY
INSTALLATION.  TO PERMIT THIS WOULD BE A SHAM.  A JURY MADE UP OF
MILITARY PERSONNEL WOULD BE TANTAMOUNT TO THE PERSONNEL OF A COURT
MARTIAL TO WHICH THE FORMER MINORITY OBJECTS.  A JURY COMPOSED OF
CIVILIANS RESIDING ON THE MILITARY INSTALLATION IS SUBJECT TO THE SAME
CRITICISM.  IF THE JURY IS SELECTED FROM AMONG THE LOCAL POPULACE, HOW
WOULD THE FOREIGN CITIZENS BE FORCED TO ATTEND THE TRIAL?  AND
PERCHANCE IF THEY DID ATTEND, LANGUAGE BARRIERS IN NON-ENGLISH-SPEAKING
COUNTRIES WOULD BE NIGH INSURMOUNTABLE.  PERSONALLY, I WOULD MUCH
PREFER, AS DID MRS. MADSEN, THAT MY CASE BE TRIED BEFORE A MILITARY
COURT-MARTIAL OF MY OWN COUNTRYMEN.  MOREOVER, WE MUST REMEMBER THAT
THE AGREEMENT OF THE FOREIGN COUNTRY MUST BE OBTAINED BEFORE ANY
AMERICAN COURT COULD SIT IN ITS TERRITORY.  IN NONCOMMON-LAW COUNTRIES,
IF SUCH COURTS WERE PERMITTED TO SIT - A DOUBTFUL POSSIBILITY - OUR
JURY SYSTEM WOULD BE TOSSED ABOUT LIKE A CORK ON UNSETTLED WATERS. 

LIKEWISE, TRIAL OF OFFENDERS BY AN ARTICLE III COURT IN THIS COUNTRY,
PERHAPS WORKABLE IN SOME CASES, IS EQUALLY IMPRACTICABLE AS A GENERAL
SOLUTION TO THE PROBLEM.  THE HUNDREDS OF PETTY CASES INVOLVING BLACK
MARKET OPERATIONS, NARCOTICS, IMMORALITY, AND THE LIKE, COULD HARDLY BE
BROUGHT HERE FOR PROSECUTION EVEN IF THE CONGRESS AND THE FOREIGN
NATION INVOLVED AUTHORIZED SUCH A PROCEDURE.  ASIDE FROM THE TREMENDOUS
WASTE OF THE TIME OF MILITARY PERSONNEL AND THE RESULTANT DISRUPTIONS,
AS WELL AS THE LARGE EXPENDITURE OF MONEY NECESSARY TO BRING WITNESSES
AND EVIDENCE TO THE UNITED STATES, THE DETERRENT EFFECT OF THE
PROSECUTION WOULD BE NIL BECAUSE OF THE DELAY AND DISTANCE AT WHICH IT
WOULD BE HELD.  FURTHERMORE, COMPULSORY PROCESS IS AN ESSENTIAL TO ANY
SYSTEM OF JUSTICE.  THE ATTENDANCE OF FOREIGN NATIONALS AS WITNESSES AT
A JUDICIAL PROCEEDING IN THIS COUNTRY COULD REST ONLY ON A VOLUNTARY
BASIS AND DEPOSITIONS COULD NOT BE REQUIRED.  AS A MATTER OF
INTERNATIONAL LAW SUCH ATTENDANCE COULD NEVER BE COMPELLED AND THE
COURT IN SUCH A PROCEEDING WOULD BE POWERLESS TO CONTROL THIS VITAL
ELEMENT IN ITS PROCEDURE.  IN SHORT, THIS SOLUTION COULD ONLY RESULT IN
THE PRACTICAL ABDICATION OF AMERICAN JUDICIAL AUTHORITY OVER MOST OF
THE OFFENSES COMMITTED BY AMERICAN CIVILIANS IN FOREIGN COUNTRIES. 

THE ONLY ALTERNATIVE REMAINING - PROBABLY THE ALTERNATIVE THAT THE
CONGRESS WILL NOW BE FORCED TO CHOOSE - IS THAT AMERICANS COMMITTING
OFFENSES ON FOREIGN SOIL BE TRIED BY THE COURTS OF THE COUNTRY IN WHICH
THE OFFENSE IS COMMITTED.  FOREIGN COURTS HAVE EXCLUSIVE JURISDICTION
UNDER THE PRINCIPLES OF INTERNATIONAL LAW AND MANY NATIONS ENJOY
CONCURRENT JURISDICTION WITH THE AMERICAN MILITARY AUTHORITIES PURSUANT
TO ARTICLE VII OF THE AGREEMENT REGARDING STATUS OF FORCES OF PARTIES
TO THE NORTH ATLANTIC TREATY.  (FN4)  WHERE THE AMERICAN MILITARY
AUTHORITIES DO HAVE JURISDICTION, IT IS ONLY BY MUTUAL AGREEMENT WITH
THE FOREIGN SOVEREIGN CONCERNED AND PURSUANT TO CAREFULLY DRAWN
AGREEMENTS CONDITIONED ON TRIAL BY THE AMERICAN MILITARY AUTHORITIES. 
TYPICAL OF THESE AGREEMENTS WAS THE ONE CONCLUDED BETWEEN THE UNITED
STATES AND JAPAN ON FEBRUARY 28, 1952, AND IN FORCE AT THE TIME ONE OF
THESE CASES AROSE.  UNDER THIS AND LIKE AGREEMENTS, THE JURISDICTION SO
CEDED TO THE UNITED STATES MILITARY COURTS WILL SURELY BE WITHDRAWN IF
THE SERVICES ARE IMPOTENT TO EXERCISE IT. IT IS CLEAR THAT TRIAL BEFORE
AN AMERICAN COURT-MARTIAL IN WHICH THE FUNDAMENTALS OF DUE PROCESS ARE
OBSERVED IS PREFERABLE TO LEAVING AMERICAN SERVICEMEN AND THEIR
DEPENDENTS TO THE WIDELY VARYING STANDARDS OF JUSTICE IN FOREIGN COURTS
THROUGHOUT THE WORLD.  UNDER THESE CIRCUMSTANCES IT IS UNTENABLE TO SAY
THAT CONGRESS COULD HAVE EXERCISED A LESSER POWER ADEQUATE TO THE END
PROPOSED. 

II. 

MY BROTHERS WHO ARE CONCURRING IN THE RESULT SEEM TO FIND SOME
COMFORT IN THAT FOR THE PRESENT THEY VOID AN ACT OF CONGRESS ONLY AS TO
CAPITAL CASES.  I FIND NO DISTINCTION IN THE CONSTITUTION BETWEEN
CAPITAL AND OTHER CASES.  IN FACT, AT ARGUMENT ALL PARTIES ADMITTED
THERE COULD BE NO VALID DIFFERENCE.  MY BROTHERS ARE CAREFUL NOT TO SAY
THAT THEY WOULD UPHOLD THE ACT AS TO OFFENSES LESS THAN CAPITAL.  THEY
UNFORTUNATELY LEAVE THAT DECISION FOR ANOTHER DAY.  THIS IS DISASTROUS
TO PROPER JUDICIAL ADMINISTRATION AS WELL AS TO LAW ENFORCEMENT.  THE
CONGRESS AND THE EXECUTIVE DEPARTMENT ARE ENTITLED TO KNOW WHETHER A
COURT-MARTIAL MAY BE CONSTITUTIONALLY UTILIZED TO TRY AN OFFENSE LESS
THAN CAPITAL.  IF SO, THEN ALL THAT IS NECESSARY IS TO ELIMINATE
CAPITAL PUNISHMENT INSOFAR AS ARTICLE 2(11) OFFENSES ARE CONCERNED.  I
DEEPLY REGRET THAT THE FORMER MINORITY DOES NOT, NOW THAT IT HAS BECOME
THE MAJORITY, PERFORM THE HIGH DUTY THAT CIRCUMSTANCE REQUIRES.  BOTH
THE CONGRESS AND THE EXECUTIVE ARE LEFT ONLY TO CONJECTURE AS TO
WHETHER THEY SHOULD "SACK" ARTICLE 2(11) AND REQUIRE ALL DEPENDENTS TO
RETURN AND REMAIN WITHIN THIS COUNTRY OR SIMPLY ELIMINATE CAPITAL
PUNISHMENT FROM ALL OFFENSES UNDER THE ARTICLE.  THE MORALE OF OUR
TROOPS MAY PREVENT THE FORMER AND CERTAINLY THE ABSTENTION OF THIS
COURT PROHIBITS THE LATTER.  ALL THAT REMAINS IS FOR THE DEPENDENTS OF
OUR SOLDIERS TO BE PROSECUTED IN FOREIGN COURTS, AN UNHAPPY PROSPECT
NOT ONLY FOR THEM BUT FOR ALL OF US. 

FN1  THE COURT WAS COMPOSED OF CHIEF JUSTICE TAFT AND ASSOCIATE
JUSTICES HOLMES, VAN DEVANTER, MCREYNOLDS, BRANDEIS, SUTHERLAND,
BUTLER, SANFORD, AND STONE.  MR. JUSTICE VAN DEVANTER WROTE THE OPINION
FOR THE COURT. 

FN2  AN INTERESTING AND AUTHORITATIVE TREATMENT OF COURT-MARTIAL
JURISDICTION OVER CAMP FOLLOWERS IS FOUND IN BLUMENTHAL, WOMEN CAMP
FOLLOWERS OF THE AMERICAN REVOLUTION (1952).  IT POINTS OUT MANY
INSTANCES WHERE WOMEN, NOT IN THE ARMED SERVICES, WERE SUBJECTED TO A
COURT-MARTIAL LONG AFTER THE WAR HAD ENDED.  THIS WAS NOT TAKEN TO BE
AN "ASTRONOMICAL DOCTRINE" EITHER IN OUR FORCES OR ABROAD. 

FN3  IN THIS CONNECTION SEE "MADSEN V. KINSELLA - LANDMARK AND
GUIDEPOST IN LAW OF MILITARY OCCUPATION," BY JOHN M. RAYMOND, ASSISTANT
LEGAL ADVISER, DEPARTMENT OF STATE, 47 AM. J. INT'L L. 300 (1953). 

FN4  NATO STATUS OF FORCES AGREEMENT, T.I.A.S. 2846 (SIGNED IN LONDON
ON JULY 19, 1951), 4 U.S. TREATIES AND OTHER INTERNATIONAL AGREEMENTS
1792. 
..END :



SMITH V. SPERLING 354 U.S. 91 


NO. 316.  ARGUED MARCH 27-28, 1957.  - DECIDED JUNE 10, 1957.  - 237
F.2D 317, REVERSED AND REMANDED. 


THIS IS A STOCKHOLDER'S DERIVATIVE SUIT BROUGHT IN A FEDERAL DISTRICT
COURT IN CALIFORNIA ON GROUNDS OF DIVERSITY OF CITIZENSHIP BY A CITIZEN
OF NEW YORK AGAINST TWO DELAWARE CORPORATIONS AND THE DIRECTORS OF ONE
OF THEM, WHO ARE CITIZENS OF CALIFORNIA.  THE COMPLAINT ALLEGED
FRAUDULENT WASTAGE OF THE ASSETS OF WARNER BROS., THE PLAINTIFF'S
CORPORATION, FOR THE BENEFIT OF A SON-IN-LAW OF ONE OF ITS DIRECTORS
AND THE SON-IN-LAW'S CORPORATION.  IT ALLEGED THAT A DEMAND ON THE
DIRECTORS OF WARNER BROS. TO INSTITUTE THE SUIT WAS NOT MADE BECAUSE IT
WOULD HAVE BEEN FUTILE, SINCE ALL OR A MAJORITY OF THEM HAD APPROVED
THE CONTRACTS INVOLVED.  THE DISTRICT COURT FOUND THAT (1) THE
CONTRACTS WERE MADE IN GOOD FAITH AND WITHOUT FRAUD, (2) THE
STOCKHOLDERS, OFFICERS OR DIRECTORS WERE NOT "ANTAGONISTIC TO THE
FINANCIAL INTERESTS" OF WARNER BROS., (3) NONE OF THE DIRECTORS
"WRONGFULLY PARTICIPATED" IN THE ACTS COMPLAINED OF, AND (4) IF A
DEMAND HAD BEEN MADE ON WARNER BROS. TO INSTITUTE SUIT, THE MANAGEMENT
WOULD NOT HAVE BEEN DISQUALIFIED "FROM FAITHFULLY DOING THEIR DUTY,"
BUT THAT "SUCH A DEMAND WOULD HAVE BEEN FUTILE."  ON THESE GROUNDS, THE
DISTRICT COURT REALIGNED WARNER BROS. AS A PARTY PLAINTIFF AND
DISMISSED THE BILL FOR WANT OF DIVERSITY JURISDICTION.  HELD:  IT ERRED
IN DOING SO, AND THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED.  PP.
92-98. 

(A)  IN CONSIDERING THE ISSUE OF FEDERAL DIVERSITY JURISDICTION, THE
DISTRICT COURT SHOULD HAVE CONSIDERED ONLY THE FACE OF THE PLEADINGS
AND THE NATURE OF THE CONTROVERSY WITHOUT ATTEMPTING TO ADJUDICATE THE
MERITS OF THE CHARGES OF WRONGDOING.  PP. 94-98. 

(B) FEDERAL LAW GOVERNS THE QUESTION OF FEDERAL JURISDICTION; BUT
LOCAL LAW WILL GOVERN THE DECISION ON THE MERITS.  PP. 95-96. 

(C)  THERE IS "ANTAGONISM" BETWEEN A CORPORATION AND ITS STOCKHOLDER
WHENEVER THE MANAGEMENT IS ALIGNED AGAINST THE STOCKHOLDER AND DEFENDS
A COURSE OF ACTION WHICH THE STOCKHOLDER ATTACKS, EVEN THOUGH THE
MANAGEMENT ACTS IN GOOD FAITH.  PP. 95, 96-98. 

(D)  ABSENT COLLUSION, THERE IS DIVERSITY JURISDICTION WHEN THE REAL
COLLISION OF ISSUES IS BETWEEN CITIZENS OF DIFFERENT STATES.  P. 97. 

(E)  ON THE RECORD IN THIS CASE, IT IS EVIDENT THAT THERE IS SUCH A
COLLISION HERE.  PP. 97-98. 

(F)  DIVERSITY JURISDICTION HAVING ONCE VESTED, IT WAS NOT LOST
MERELY BECAUSE THE ORIGINAL PLAINTIFF DIED WHILE THE SUIT WAS PENDING
AND THE SPECIAL ADMINISTRATOR SUBSTITUTED FOR HIM WAS A CITIZEN OF
CALIFORNIA.  P. 93, N. 1. 

(G)  THE BILL MEETS THE REQUIREMENTS OF RULE 23(B) OF THE RULES OF
CIVIL PROCEDURE THAT THE STOCKHOLDER SHOW WITH PARTICULARITY WHAT
EFFORTS HE MADE TO GET THOSE WHO CONTROL THE CORPORATION TO TAKE
ACTION, "AND THE REASONS FOR HIS FAILURE TO OBTAIN SUCH ACTION OR THE
REASONS FOR NOT MAKING SUCH EFFORT."  P. 94, N. 2. 

SMITH, SPECIAL ADMINISTRATOR, V. SPERLING ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS FILED IN A FEDERAL DISTRICT COURT IN CALIFORNIA BY
REASON OF DIVERSITY OF CITIZENSHIP.  IT IS A STOCKHOLDER'S DERIVATIVE
SUIT.  THE FIRST CAUSE OF ACTION, THE ONLY ONE INVOLVED HERE, IS BASED
ON ALLEGED FRAUDULENT WASTAGE OF ASSETS OF WARNER BROS. PICTURES, INC.
(WHICH WE WILL CALL WARNER BROS.) FOR THE BENEFIT OF ONE SPERLING, A
SON-IN-LAW OF A DIRECTOR OF WARNER BROS., AND UNITED STATES PICTURES,
INC. (WHICH WE WILL CALL UNITED), THE SON-IN-LAW'S CORPORATION. 
EXTENDED ALLEGATIONS ARE MADE CONCERNING VARIOUS AGREEMENTS BETWEEN
WARNER BROS. AND UNITED WHICH, IT IS CHARGED, ARE UNFAIR TO WARNER
BROS.  DEMAND ON THE DIRECTORS OF WARNER BROS. TO INSTITUTE THIS ACTION
WAS NOT MADE BECAUSE, IT IS AVERRED, SUCH A DEMAND WOULD BE FUTILE
SINCE, INTER ALIA, ALL OR A MAJORITY OF THE BOARD OF DIRECTORS APPROVED
THE CONTRACTS.  THE PLAINTIFF IS A CITIZEN OF NEW YORK; (FN1) THE
DEFENDENT DIRECTORS ARE CITIZENS OF CALIFORNIA; AND WARNER BROS.  AND
UNITED ARE DELAWARE CORPORATIONS. 

THE COMPLAINT JOINED WARNER BROS. AS A DEFENDANT.  IT WAS URGED
BEFORE THE DISTRICT COURT, AND IT IS CLAIMED HERE, THAT SINCE THE CAUSE
OF ACTION SOUGHT TO BE ENFORCED IS ONE THAT BELONGS TO THE CORPORATION
AND SINCE THE CORPORATION IS NOT "ANTAGONISTIC" TO THE STOCKHOLDER
WITHIN THE MEANING OF THAT TERM AS USED IN DOCTOR V. HARRINGTON, 196
U.S. 579, 588, WARNER BROS. SHOULD BE REALIGNED AS PLAINTIFF.  IN THAT
EVENT THERE WOULD BE NO DIVERSITY OF CITIZENSHIP SINCE DELAWARE
CORPORATIONS WOULD BE ON BOTH SIDES OF THE LAWSUIT.  STRAWBRIDGE V.
CURTISS, 3 CRANCH 267. 

THE DISTRICT COURT HELD A HEARING ON THE ISSUE - A HEARING THAT
LASTED 15 DAYS.  IT FOUND: 

(1)  THAT THE CONTRACTS IN CONTROVERSY WERE MADE IN GOOD FAITH AND
WITHOUT FRAUD; THAT THEY WERE CONSIDERED BY THE DIRECTORS TO BE IN THE
BEST INTERESTS OF WARNER BROS.  AND THAT, IN APPROVING THEM, THEY
EXERCISED THEIR BEST BUSINESS JUDGMENT. 

(2)  THAT WARNER BROS. WAS NOT UNDER THE DOMINATION OR CONTROL OF THE
WARNERS ON THE BOARD; AND THAT THE STOCKHOLDERS, OFFICERS, OR DIRECTORS
WERE NOT "ANTAGONISTIC TO THE FINANCIAL INTERESTS" OF WARNER BROS. 

(3)  THAT NEITHER ALL NOR A MAJORITY NOR ANY OF THE DIRECTORS AND
OFFICERS OF WARNER BROS. "WRONGFULLY PARTICIPATED" IN THE ACTS
COMPLAINED OF; THAT THE BOARD WAS NOT DOMINATED OR CONTROLLED BY THE
WARNERS AND SPERLING OR BY ANY ONE OR MORE OF THEM. 

(4)  THAT IF DEMAND HAD BEEN MADE ON WARNER BROS. TO INSTITUTE SUIT,
THE MANAGEMENT WOULD NOT HAVE BEEN DISQUALIFIED "FROM FAITHFULLY DOING
THEIR DUTY" AS OFFICERS AND DIRECTORS BUT THAT "SUCH A DEMAND WOULD
HAVE BEEN FUTILE."  (FN2) 

FOR THESE REASONS THE DISTRICT COURT REALIGNED WARNER BROS. AS A
PARTY PLAINTIFF AND DISMISSED THE BILL.  117 F. SUPP. 781.  THE COURT
OF APPEALS AFFIRMED.  237 F.2D 317.  THE CASE IS HERE ON A WRIT OF
CERTIORARI.  352 U.S. 865. 

THIS IS A CORPORATE CAUSE OF ACTION BROUGHT BY A STOCKHOLDER. 
WHETHER IT IS A PROPER CASE FOR ASSERTION BY A STOCKHOLDER OF THAT
CAUSE OF ACTION IS NOT THE QUESTION HERE.  SUCH WAS THE PROBLEM
INVOLVED IN HAWES V. OAKLAND, 104 U.S. 450, UPON WHICH SO MUCH RELIANCE
IS PLACED IN SUPPORTING THE COURT BELOW.  HERE WE ASSUME THAT THIS
CORPORATE CAUSE OF ACTION MAY BE ENFORCED BY THE STOCKHOLDER.   WE ARE
CONCERNED ONLY WITH A QUESTION OF FEDERAL DIVERSITY JURISDICTION. 

THE GIST OF THE FINDINGS OF THE DISTRICT COURT IS THAT SINCE THERE
WAS NO FRAUD ON THE PART OF THE DIRECTORS IN MAKING THE CONTRACTS BUT
ONLY AN EXERCISE OF INDEPENDENT BUSINESS JUDGMENT, THE MANAGEMENT WAS
NOT ANTAGONISTIC TO THE FINANCIAL INTERESTS OF THE CORPORATION.  THAT
IS AN ISSUE THAT GOES TO THE MERITS, NOT TO THE QUESTION OF
JURISDICTION.  THERE WILL, OF COURSE, BE ANTAGONISM BETWEEN THE
STOCKHOLDER AND THE MANAGEMENT WHERE THE DOMINANT OFFICERS AND
DIRECTORS ARE GUILTY OF FRAUD OR MISDEEDS.  BUT WRONGDOING IN THAT
SENSE IS NOT THE SOLE MEASURE OF ANTAGONISM.  THERE IS ANTAGONISM
WHENEVER THE MANAGEMENT IS ALIGNED AGAINST THE STOCKHOLDER AND DEFENDS
A COURSE OF CONDUCT WHICH HE ATTACKS.  THE CHARGE NORMALLY IS CAST IN
TERMS OF FRAUD, BREACH OF TRUST, OR ILLEGALITY.  SEE DOCTOR V.
HARRINGTON, SUPRA; VENNER V. GREAT NORTHERN R. CO., 209 U.S. 24; KOSTER
V. (AMERICAN) LUMBERMENS MUTUAL CASUALTY CO., 330 U.S. 518, 522, 523. 
THE ANSWER, OF COURSE, ALWAYS DENIES THE CHARGE OF WRONGDOING.  TO STOP
AND TRY THE CHARGE OF WRONGDOING IS TO DELVE INTO THE MERITS.  THAT
DOES NOT SEEM TO US TO BE THE PROPER COURSE.  IT IS A TIME-CONSUMING,
WASTEFUL EXERTION OF ENERGY ON A PRELIMINARY ISSUE IN THE CASE.  THE
INSTANT CASE IS A GOOD ILLUSTRATION, FOR IT HAS BEEN OVER EIGHT YEARS
IN THE COURTS ON THIS QUESTION OF JURISDICTION. 

SINCE OUR DECISION IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, THE LAW
WHICH GOVERNS THE MERITS IN THESE DERIVATIVE ACTIONS IS LOCAL LAW. 
COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541, 555-556.  THE RESULT,
THEN, OF THE APPROACH FOLLOWED BY THE COURT BELOW IS TO HAVE MORE THAN
A PRELIMINARY TRIAL ON MATTERS GOING TO THE MERITS OF THE CONTROVERSY. 
OBVIOUSLY FEDERAL LAW WOULD GOVERN THE PRELIMINARY TRIAL ON THE ISSUES
OF WRONGDOING, FOR THAT MATTER GOES TO THE QUESTION OF FEDERAL
JURISDICTION.  YET SHOULD THE DISTRICT COURT DECIDE THOSE ISSUES IN
FAVOR OF THE STOCKHOLDER, A SECOND TRIAL ON THE MERITS WILL REQUIRE
THAT THE SAME ISSUES BE TRIED OUT ACCORDING TO THE SET OF RULES
SUPPLIED BY LOCAL LAW. 

IT SEEMS TO US THAT THE PROPER COURSE IS NOT TO TRY OUT THE ISSUES
PRESENTED BY THE CHARGES OF WRONGDOING BUT TO DETERMINE THE ISSUE OF
ANTAGONISM ON THE FACE OF THE PLEADINGS AND BY THE NATURE OF THE
CONTROVERSY.  THE BILL AND ANSWER NORMALLY DETERMINE WHETHER THE
MANAGEMENT IS ANTAGONISTIC TO THE STOCKHOLDER, AS CENTRAL R. CO. V.
MILLS, 113 U.S. 249, AND DOCTOR V. HARRINGTON, SUPRA, INDICATE.  (FN3)
THE MANAGEMENT MAY REFUSE OR FAIL TO ACT FOR ANY NUMBER OF REASONS. 
FRAUD MAY BE ONE; THE RELUCTANCE TO TAKE ACTION AGAINST A CLOSE
BUSINESS ASSOCIATE MAY BE ANOTHER; HONEST BELIEF IN THE WISDOM OF THE
COURSE OF ACTION WHICH THE MANAGEMENT HAS APPROVED MAY BE STILL
ANOTHER; AND SO ON.  AS THE COURT SAID IN DELAWARE & HUDSON CO. V.
ALBANY & S.R. CO., 213 U.S. 435, 451, WHERE THE MANAGEMENT WAS DEEMED
TO BE ANTAGONISTIC TO THE STOCKHOLDER, "THE ATTITUDE OF THE DIRECTORS
NEED NOT BE SINISTER.  IT MAY BE SINCERE."  WHENEVER THE MANAGEMENT
REFUSES TO TAKE ACTION TO UNDO A BUSINESS TRANSACTION OR WHENEVER, AS
IN THIS CASE, IT SO SOLIDLY APPROVES IT THAT ANY DEMAND TO RESCIND
WOULD BE FUTILE, ANTAGONISM IS EVIDENT.  THE CAUSE OF ACTION, TO BE
SURE, IS THAT OF THE CORPORATION.  BUT THE CORPORATION HAS BECOME
THROUGH ITS MANAGERS HOSTILE AND ANTAGONISTIC TO THE ENFORCEMENT OF THE
CLAIM. 

COLLUSION TO SATISFY THE JURISDICTIONAL REQUIREMENTS OF THE DISTRICT
COURTS MAY, OF COURSE, ALWAYS BE SHOWN; (FN4) AND IT WILL ALWAYS DEFEAT
JURISDICTION.  ABSENT COLLUSION OF ISSUES, INDIANAPOLIS V. CHASE
NATIONAL BANK, 314 U.S. 63, 69, OR AS STATED IN HELM V. ZARECOR, 222
U.S. 32, 36, "THE ACTUAL CONTROVERSY," IS BETWEEN CITIZENS OF DIFFERENT
STATES.  THIS IS A PRACTICAL NOT A MECHANICAL DETERMINATION AND IS
RESOLVED BY THE PLEADINGS AND THE NATURE OF THE DISPUTE. 

HERE IT IS PLAIN THAT THE STOCKHOLDER AND THOSE WHO MANAGE THE
CORPORATION ARE COMPLETELY AND IRREVOCABLY OPPOSED ON A MATTER OF
CORPORATE PRACTICE AND POLICY.  A TRIAL MAY DEMONSTRATE THAT THE
STOCKHOLDER IS WRONG AND THE MANAGEMENT IS RIGHT.  IT MAY SHOW A
DISPUTE THAT LIES IN THE PENUMBRA OF BUSINESS JUDGMENT, UNAFFECTED BY
FRAUD.  BUT THAT ISSUE GOES TO THE MERITS, NOT TO JURISDICTION.  THERE
IS JURISDICTION IF THERE IS REAL COLLISION BETWEEN THE STOCKHOLDER AND
HIS CORPORATION.  THAT THERE IS SUCH A COLLISION IS EVIDENT HERE. 

THE JUDGMENT MUST THEREFORE BE REVERSED AND THE CASE REMANDED TO THE
DISTRICT COURT.  REVERSED. 

FN1  WHILE THE ACTION WAS PENDING PLAINTIFF DIED AND FOR HIM A
SPECIAL ADMINISTRATOR HAS BEEN SUBSTITUTED.  THE LATTER IS A CITIZEN OF
CALIFORNIA. 

HAD THE SUIT BEEN ORIGINALLY COMMENCED BY THE DECEDENT'S
REPRESENTATIVE, IT WOULD HAVE BEEN THE CITIZENSHIP OF THE
REPRESENTATIVE WHICH WOULD HAVE BEEN DETERMINATIVE OF JURISDICTION IN
THIS DIVERSITY CASE.  SEE CHAPPEDELAINE V. DECHENAUX, 4 CRANCH 306;
CHILDRESS V. EMORY, 8 WHEAT.  642, 669; MEXICAN CENTRAL R. CO. V.
ECKMAN, 187 U.S. 429, 434; MECOM V. FITZSIMMONS DRILLING CO., 284 U.S.
183, 186.  BUT JURISDICTION, ONCE ATTACHED, IS NOT IMPAIRED BY A
PARTY'S LATER CHANGE OF DOMICILE.  MOLLAN V. TORRANCE, 9 WHEAT.  537. 
AS CHIEF JUSTICE MARSHALL SAID IN THAT CASE:  "IT IS QUITE CLEAR, THAT
THE JURISDICTION OF THE COURT DEPENDS UPON THE STATE OF THINGS AT THE
TIME OF THE ACTION BROUGHT, AND THAT AFTER VESTING, IT CANNOT BE OUSTED
BY SUBSEQUENT EVENTS."  ID., P. 539.  THE RATIONALE, THAT JURISDICTION
IS TESTED BY THE FACTS AS THEY EXISTED WHEN THE ACTION IS BROUGHT, IS
APPLIED TO A SITUATION WHERE A PARTY DIES AND A NON-DIVERSE
REPRESENTATIVE IS SUBSTITUTED.  DUNN V. CLARKE, 8 PET. 1 (1834). 

FN2  THE BILL THEREFORE MEETS THE REQUIREMENTS OF RULE 23(B) OF THE
RULES OF CIVIL PROCEDURE THAT THE STOCKHOLDER SHOW WITH PARTICULARITY
WHAT EFFORTS HE MADE TO GET THOSE WHO CONTROL THE CORPORATION TO TAKE
ACTION, "AND THE REASONS FOR HIS FAILURE TO OBTAIN SUCH ACTION OR THE
REASONS FOR NOT MAKING SUCH EFFORT."  AND SEE HAWES V. OAKLAND, 104
U.S. 450; DELAWARE & HUDSON CO. V. ALBANY & S.R. CO., 213 U.S. 435. 

FN3  THE COURT IN DOCTOR V. HARRINGTON, SUPRA, AT P. 587, SAID, "THE
ULTIMATE INTEREST OF THE CORPORATION MADE DEFENDANT MAY BE THE SAME AS
THAT OF THE STOCKHOLDER MADE PLAINTIFF, BUT THE CORPORATION MAY BE
UNDER A CONTROL ANTAGONISTIC TO HIM, AND MADE TO ACT IN A WAY
DETRIMENTAL TO HIS RIGHTS.  IN OTHER WORDS, HIS INTERESTS, AND THE
INTERESTS OF THE CORPORATION, MAY BE MADE SUBSERVIENT TO SOME ILLEGAL
PURPOSE.  IF A CONTROVERSY HENCE ARISE, AND THE OTHER CONDITIONS OF
JURISDICTION EXIST, IT CAN BE LITIGATED IN A FEDERAL COURT." 

THE COMPLAINT IN THAT CASE CHARGED FRAUD BY A DOMINANT DIRECTOR AND
STOCKHOLDER TO HIS ADVANTAGE AND TO THE DETRIMENT OF THE MINORITY
STOCKHOLDERS.  THE ANSWER DENIED THE FRAUD.  THE COURT DID NOT STOP, AS
THE DISTRICT COURT DID IN THE INSTANT CASE, TO INQUIRE IF TRANSACTIONS
COMPLAINED OF WERE COLORABLE OR WERE SUSTAINED BY SOUND BUSINESS
JUDGMENT.  AFTER REVIEWING THE EARLIER DECISIONS, THE COURT CONCLUDED,
"THE CASE AT BAR IS BROUGHT WITHIN THE DOCTRINE OF THOSE CASES BY THE
ALLEGATIONS OF THE BILL."  ID., P. 588.  THE LEADING CASE CITED BY THE
COURT WAS HAWES V. OAKLAND, 104 U.S. 450, WHERE IN DETERMINING WHETHER
A PROPER CASE FOR A DERIVATIVE ACTION HAD BEEN MADE OUT, THE COURT
LOOKED ONLY TO THE NATURE OF THE CHARGES CONTAINED IN THE BILL.  ID.,
PP. 461-462. 

FN4  28 U.S.C. SEC. 1359 PROVIDES: 

"A DISTRICT COURT SHALL NOT HAVE JURISDICTION OF A CIVIL ACTION IN
WHICH ANY PARTY, BY ASSIGNMENT OR OTHERWISE, HAS BEEN IMPROPERLY OR
COLLUSIVELY MADE OR JOINED TO INVOKE THE JURISDICTION OF SUCH COURT." 

COLLUSION IS SHOWN, FOR EXAMPLE, WHERE THE NEGLECT OR REFUSAL OF THE
DIRECTORS TO TAKE THE DESIRED ACTION ON THE PART OF THE CORPORATION IS
SIMULATED SO THAT IT MAY BE MADE TO APPEAR THAT THE DIVERSITY OF
CITIZENSHIP NECESSARY FOR FEDERAL JURISDICTION EXISTS.  DETROIT V.
DEAN, 106 U.S. 537; QUINCY V. STEEL, 120 U.S. 241. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON, MR. JUSTICE HARLAN,
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING.* 

*THIS OPINION APPLIES ALSO TO NO. 149, SWANSON V. TRAER, POST, P.
114. 

THE COURT HOLDS THAT, COLLUSION ASIDE, WHENEVER A CORPORATION REFUSES
TO BRING A SUIT AND A DERIVATIVE SUIT IS BROUGHT BY A STOCKHOLDER ON
ITS BEHALF, THE CORPORATION IS ALWAYS TO BE ALIGNED AS A DEFENDANT FOR
PURPOSES OF DETERMINING DIVERSITY JURISDICTION.  THE COURT THUS MAKES
THE EXCEPTION THE RULE, AND BY CONFOUNDING THE REQUIREMENTS FOR
ESTABLISHING A SUBSTANTIVE CAUSE OF ACTION WITH THE REQUIREMENTS OF
DIVERSITY JURISDICTION IT OVERTURNS A HALF-CENTURY'S PRECEDENTS IN THIS
COURT.  THE SCOPE AND SIGNIFICANCE OF THIS UNDOING CANNOT BE
APPRECIATED WITHOUT A BRIEF REVIEW OF THE HISTORY OF THE JURISDICTIONAL
ADJUDICATIONS - WHICH CONTROL THE PRESENT CASES - AND OF THE WHOLLY
DIFFERENT PRECEDENTS ESTABLISHING THE SUBSTANTIVE RULES THAT GOVERN
STOCKHOLDERS' SUITS WHEN THERE IS UNQUESTIONABLE JURISDICTION IN THE
CONSTITUTIONAL SENSE.  IT WILL ALSO BE NECESSARY TO SET FORTH GENEROUS
PORTIONS OF THE OPINIONS OF THE COURT IN PRIOR CASES TO DEMONSTRATE
THAT NOT ONLY DO THEY NOT SUPPORT THE COURT'S VIEW BUT THAT THEY ARE
BEING OVERTURNED BY IT. 

THE PRESENT CASES INVOLVE THE JURISDICTION OF THE FEDERAL COURTS, AND
THAT QUESTION ALONE.  NO ASPECT OF THE SUBSTANTIVE CAUSE OF ACTION IS
BEFORE US.  AT THE OUTSET, TWO GUIDING PRINCIPLES GOVERNING THIS
LITIGATION MUST BE KEPT CLEARLY IN MIND:  (1) THESE ARE CONSTITUTIONAL
CASES, INVOLVING THE "JUDICIAL POWER" OF THE UNITED STATES OVER
CONTROVERSIES "BETWEEN CITIZENS OF DIFFERENT STATES."  (2) THESE ARE
STOCKHOLDERS' SUITS; THE STOCKHOLDER SUES NOT IN HIS OWN RIGHT BUT IN
THE RIGHT AND ON BEHALF OF THE CORPORATION.    THE CONTRASTING
DIFFERENCE BETWEEN A STOCKHOLDER'S SUIT FOR HIS CORPORATION AND A SUIT
BY HIM AGAINST IT, IS CRUCIAL.  IN THE FORMER, HE HAS NO CLAIM OF HIS
OWN; HE MERELY HAS A PERSONAL CONTROVERSY WITH HIS CORPORATION
REGARDING THE BUSINESS WISDOM OR LEGAL BASIS FOR THE LATTER'S ASSERTION
OF A CLAIM AGAINST THIRD PARTIES.  WHATEVER MONEY OR PROPERTY IS TO BE
RECOVERED WOULD GO TO THE CORPORATION, NOT A FRACTION OF IT TO THE
STOCKHOLDER.  WHEN SUCH A SUIT IS ENTERTAINED, THE STOCKHOLDER IS IN
EFFECT ALLOWED TO CONSCRIPT THE CORPORATION AS A COMPLAINANT ON A CLAIM
THAT THE CORPORATION, IN THE EXERCISE OF WHAT IT ASSERTS TO BE ITS
UNCOERCED DISCRETION, IS UNWILLING TO INITIATE.  THIS IS A WHOLLY
DIFFERENT SITUATION FROM THAT WHICH ARISES WHEN THE CORPORATION IS
CHARGED WITH INVASION OF THE STOCKHOLDER'S INDEPENDENT RIGHT.  THUS,
FOR INSTANCE, IF A CORPORATION REARRANGES THE RELATIONSHIP OF DIFFERENT
CLASSES OF SECURITY HOLDERS TO THE DETRIMENT OF ONE CLASS, A
STOCKHOLDER IN THE DISADVANTAGED CLASS MAY PROCEED AGAINST THE
CORPORATION AS A DEFENDANT TO PROTECT HIS OWN LEGAL INTEREST. 

THE BASIC PRINCIPLES OF DIVERSITY JURISDICTION, OFTEN STATED,
OBVIOUSLY BEAR REPEATING: 

"TO SUSTAIN DIVERSITY JURISDICTION THERE MUST EXIST AN 'ACTUAL,' HELM
V. ZARECOR, 222 U.S. 32, 36, 'SUBSTANTIAL,' NILES-BEMENT-POND CO. V.
IRON MOULDERS UNION, 254 U.S. 77, 81, CONTROVERSY BETWEEN CITIZENS OF
DIFFERENT STATES, ALL OF WHOM ON ONE SIDE OF THE CONTROVERSY ARE
CITIZENS OF DIFFERENT STATES FROM ALL PARTIES ON THE OTHER SIDE. 
STRAWBRIDGE V. CURTISS, 3 CRANCH 267.  DIVERSITY JURISDICTION CANNOT BE
CONFERRED UPON THE FEDERAL COURTS BY THE PARTIES' OWN DETERMINATION OF
WHO ARE PLAINTIFFS AND WHO DEFENDANTS.  IT IS OUR DUTY, AS IT IS THAT
OF THE LOWER FEDERAL COURTS, TO 'LOOK BEYOND THE PLEADINGS AND ARRANGE
THE PARTIES ACCORDING TO THEIR SIDES IN THE DISPUTE.'  DAWSON V.
COLUMBIA TRUST CO., 197 U.S. 178, 180."  INDIANAPOLIS V. CHASE NATIONAL
BANK, 314 U.S. 63, 69. 

THE INITIAL AND LEADING CASE DEALING WITH THE ALIGNMENT OF PARTIES
FOR JURISDICTIONAL PURPOSES IN A STOCKHOLDER'S SUIT IS DOCTOR V.
HARRINGTON, 196 U.S. 579.  THAT WAS A SUIT BY STOCKHOLDERS AGAINST TWO
INDIVIDUALS ALLEGED TO CONTROL THE COMPANY IN QUESTION AND A THIRD
PARTY CORPORATION.  REALIGNING THE CORPORATION AS A PLAINTIFF, THE
CIRCUIT COURT HELD THAT THERE WAS NO DIVERSITY, AND IT DISMISSED THE
BILL FOR LACK OF JURISDICTION.  THIS COURT REVERSED.  AFTER STATING
THAT EQUITY RULE 94 (NOW RULE 23(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE) CONTEMPLATED SUITS "BROUGHT BY A STOCKHOLDER IN A
CORPORATION FOUNDED ON RIGHTS WHICH MAY PROPERLY BE ASSERTED BY THE
CORPORATION," THE COURT WENT ON TO INDICATE WHAT MUST HAVE BEEN THE
BASIS FOR ALIGNING THE CORPORATION IN THAT CASE AS A DEFENDANT: 

"AND THE DECISIONS OF THIS COURT ESTABLISH THAT SUCH A SUIT, WHEN
BETWEEN CITIZENS OF DIFFERENT STATES, INVOLVES A CONTROVERSY COGNIZABLE
IN A CIRCUIT COURT OF THE UNITED STATES.  THE ULTIMATE INTEREST OF THE
CORPORATION MADE DEFENDANT MAY BE THE SAME AS THAT OF THE STOCKHOLDER
MADE PLAINTIFF, BUT THE CORPORATION MAY BE UNDER A CONTROL ANTAGONISTIC
TO HIM, AND MADE TO ACT IN A WAY DETRIMENTAL TO HIS RIGHTS.  IN OTHER
WORDS, HIS INTERESTS, AND THE INTERESTS OF THE CORPORATION, MAY BE MADE
SUBSERVIENT TO SOME ILLEGAL PURPOSE.  IF A CONTROVERSY HENCE ARISE, AND
THE OTHER CONDITIONS OF JURISDICTION EXIST, IT CAN BE LITIGATED IN A
FEDERAL COURT."  196 U.S., AT 587. 

THE COURT THEN WENT ON TO DISCUSS THESE OTHER "CONDITIONS OF
JURISDICTION," I.E., THE COMPLAINANTS' COMPLIANCE WITH THE SUBSTANTIVE
AND PROCEDURAL REQUIREMENTS OF EQUITY RULE 94.  IN REFUSING TO REALIGN,
THE COURT DID NOT STATE THAT MERE REFUSAL TO SUE ON THE PART OF THE
CORPORATION WAS A SUFFICIENT REASON TO ALIGN THE CORPORATION AS A
DEFENDANT.  THE COURT REFERRED TO "ANTAGONISTIC" CONTROL AND THE
STOCKHOLDER'S "INTERESTS, AND THE INTERESTS OF THE CORPORATION" BEING
MADE "SUBSERVIENT TO SOME ILLEGAL PURPOSE." 

THIS QUESTION OF WHAT CONSTITUTES "ANTAGONISTIC" CONTROL IS THE CRUX
OF THE PRESENT CASES.  THE DISTRICT COURT IN NO. 316, IN THE COURSE OF
ITS THOROUGH OPINION, STATED: 

"FOR A CORPORATION TO BE 'IN ANTAGONISTIC HANDS,'  ...  OR TO HAVE A
'HOSTILE ATTITUDE,'  ... SUCH AS WOULD PERMIT ALIGNMENT ON THE SIDE
AGAINST ITS PRESUMPTIVE FINANCIAL INTERESTS, SURELY REQUIRES MORE THAN
A MERE ARGUMENT OR DIFFERENCE OF OPINION BETWEEN THE CORPORATION AND
THE SUING STOCKHOLDER AS TO THE DESIRABILITY OF BRINGING THE SUIT. 
PATENTLY, IF DIFFERENCE OF OPINION WERE ALL THE 'CONTROVERSY' REQUIRED
TO BE SHOWN BETWEEN THE STOCKHOLDER AND HIS CORPORATION IN ORDER TO
PRECLUDE ALIGNMENT OF THE LATTER WITH THE PLAINTIFF-STOCKHOLDER, THEN
THERE CAN BE NO OCCASION FOR ALL THE PAGES OF DISCUSSION OF CORPORATE
DOMINATION OR CONTROL, SINCE EVERY STOCKHOLDER'S DERIVATIVE SUIT IS BY
DEFINITION PREDICATED UPON THE ASSUMPTION THAT THE CORPORATION HAS
REFUSED TO SUE."  117 F. SUPP. 781, 802. 

THIS HAS BEEN THE VIEW THAT THIS COURT HAS CONSISTENTLY TAKEN SINCE
DOCTOR V. HARRINGTON.  THREE YEARS LATER, DOCTOR V. HARRINGTON WAS
REAFFIRMED AND ITS BASIS MADE CLEAR IN VENNER V. GREAT NORTHERN R. CO.,
209 U.S. 24.  THAT WAS A STOCKHOLDER'S SUIT BROUGHT IN A STATE COURT
AGAINST THE GREAT NORTHERN RAILROAD AND ITS PRESIDENT, JAMES J. HILL,
WITH AN ALLEGATION THAT THE "RAILROAD AND ITS BOARD OF DIRECTORS WERE
UNDER HIS ABSOLUTE CONTROL."  ID., AT 29.  BOTH DEFENDANTS WERE
CITIZENS OF THE SAME STATE.  THEY REMOVED THE CASE INTO THE FEDERAL
COURT AND THE PLAINTIFF, CLAIMING THAT THE CORPORATION SHOULD BE
REALIGNED, SOUGHT REMAND TO THE STATE COURT ON THE GROUND THAT THE
FEDERAL COURT LACKED JURISDICTION.  THE COURT, IF SUCH WAS ITS THOUGHT,
OBVIOUSLY WOULD HAVE SAID SIMPLICITER THAT SINCE THE CORPORATION
REFUSED TO SUE, THE CORPORATION MUST BE ALIGNED AS A DEFENDANT.  IT DID
NOT DO SO.  THE WHOLE THOUGHT OF MR. JUSTICE MOODY'S OPINION IS
COMPLETELY CONTRARY. 

"LET IT BE ASSUMED FOR THE PURPOSES OF THIS DECISION THAT THE COURT
MAY DISREGARD THE ARRANGEMENT OF PARTIES MADE BY THE PLEADER, AND ALIGN
THEM UPON THE SIDE WHERE THEIR INTEREST IN AND ATTITUDE TO THE
CONTROVERSY REALLY PLACES THEM, AND THEN MAY DETERMINE THE
JURISDICTIONAL QUESTION IN VIEW OF THIS ALIGNMENT.  (CITING THE REMOVAL
CASES, 100 U.S. 457, AND OTHER CASES.)  IF THIS RULE SHOULD BE APPLIED
IT WOULD LEAVE THE PARTIES HERE WHERE THE PLEADER HAS ARRANGED THEM. 
IT WOULD DOUBTLESS BE FOR THE FINANCIAL INTERESTS OF THE DEFENDANT
RAILROAD THAT THE PLAINTIFF SHOULD PREVAIL.  BUT THAT IS NOT ENOUGH. 
BOTH DEFENDANTS UNITE, AS SUFFICIENTLY APPEARS BY THE PETITION AND
OTHER PROCEEDINGS, IN RESISTING THE PLAINTIFF'S CLAIM OF ILLEGALITY AND
FRAUD.  THEY ARE ALLEGED TO HAVE ENGAGED IN THE SAME ILLEGAL AND
FRAUDULENT CONDUCT, AND THE INJURY IS ALLEGED TO HAVE BEEN ACCOMPLISHED
BY THEIR JOINT ACTION.  THE PLAINTIFF'S CONTROVERSY IS WITH BOTH, AND
BOTH ARE RIGHTFULLY AND NECESSARILY MADE DEFENDANTS, AND NEITHER CAN,
FOR JURISDICTIONAL PURPOSES, BE REGARDED OTHERWISE THAN AS A DEFENDANT
...  ."  ID., AT 31-32. 

TO MAKE EXPLICIT THE CASE'S RELATION TO THE PRIOR CASE OF DOCTOR V.
HARRINGTON, THE COURT CONTINUED: 

"THE CASE OF DOCTOR V. HARRINGTON IS PRECISELY IN POINT ON THIS
BRANCH OF THE CASE, AND IS CONCLUSIVE.  IN THAT CASE THE PLAINTIFFS,
STOCKHOLDERS IN A CORPORATION, BROUGHT AN ACTION IN THE CIRCUIT COURT
AGAINST THE CORPORATION AND HARRINGTON, ANOTHER STOCKHOLDER, 'WHO
DIRECTED THE MANAGEMENT OF THE AFFAIRS OF THE CORPORATION, DICTATED ITS
POLICY, AND SELECTED ITS DIRECTORS.'  IT WAS ALLEGED THAT HARRINGTON
FRAUDULENTLY CAUSED THE CORPORATION TO MAKE ITS PROMISSORY NOTE WITHOUT
CONSIDERATION, OBTAINED A JUDGMENT ON THE NOTE, AND SOLD, ON EXECUTION,
FOR MUCH LESS THAN THEIR REAL VALUE, THE ASSETS OF THE CORPORATION TO
PERSONS ACTING FOR HIS BENEFIT.  ON THE FACE OF THE PLEADINGS THERE WAS
THE NECESSARY DIVERSITY OF CITIZENSHIP, BUT IT WAS INSISTED THAT THE
CORPORATION, BECAUSE ITS INTEREST WAS THE SAME AS THAT OF THE
PLAINTIFF, SHOULD BE REGARDED AS A PLAINTIFF.  THE COURT BELOW SO
ALIGNED THE CORPORATION DEFENDANT, AND, AS THAT DESTROYED THE DIVERSITY
OF CITIZENSHIP, DISMISSED THE SUIT FOR WANT OF JURISDICTION.  THIS
COURT REVERSED THE DECREE, SAYING (THE QUOTATION IS OF THE PART OF THE
COURT'S OPINION IN DOCTOR, QUOTED SUPRA, P. 100).  THERE WAS THEREFORE
IN THE CASE AT BAR THE DIVERSITY OF CITIZENSHIP WHICH CONFERS
JURISDICTION."  ID., AT 32-33. 

THE JURISDICTIONAL DOCTRINE OF DOCTOR V. HARRINGTON, AS REAFFIRMED
AND ELABORATED IN VENNER V. GREAT NORTHERN R. CO., WAS ACCEPTED WITHOUT
QUESTION ONLY TEN YEARS AGO IN KOSTER V. LUMBERMENS MUTUAL CO., 330
U.S. 518.  THE COURT IN THAT CASE SUMMARIZED THE JURISDICTIONAL
DOCTRINE OF ALIGNMENT OF PARTIES IN STOCKHOLDERS' SUITS: 

"THE CAUSE OF ACTION WHICH SUCH A PLAINTIFF BRINGS BEFORE THE COURT
IS NOT HIS OWN BUT THE CORPORATION'S.  IT IS THE REAL PARTY IN INTEREST
AND HE IS ALLOWED TO ACT IN PROTECTION OF ITS INTEREST SOMEWHAT AS A
'NEXT FRIEND' MIGHT DO FOR AN INDIVIDUAL, BECAUSE IT IS DISABLED FROM
PROTECTING ITSELF.  IF, HOWEVER, SUCH A CASE AS THIS WERE TREATED AS
OTHER ACTIONS, THE FEDERAL COURT WOULD REALIGN THE PARTIES FOR
JURISDICTIONAL PURPOSES ACCORDING TO THEIR REAL INTERESTS.  IN THIS
CASE, WHICH IS TYPICAL OF MANY, THIS WOULD PUT THE CORPORATION ON THE
PLAINTIFF'S SIDE.  ... AND JURISDICTION WOULD BE OUSTED .  INDIANAPOLIS
V. CHASE NATIONAL BANK, 314 U.S. 63.  BUT JURISDICTION IS SAVED IN THIS
CLASS OF CASES BY A SPECIAL DISPENSATION BECAUSE THE CORPORATION IS IN
ANTAGONISTIC HANDS.  DOCTOR V. HARRINGTON, 196 U.S. 579."  ID., AT 522
523. 

MR. JUSTICE JACKSON'S OPINION FOR THE COURT THROWS FURTHER LIGHT ON
WHAT IS MEANT BY "ANTAGONISTIC HANDS" BY CHARACTERIZING "THE REAL PARTY
IN INTEREST," THE CORPORATION, AS "DISABLED FROM PROTECTING ITSLEF." 
THAT CANNOT MEAN ANYTHING ELSE EXCEPT THAT THE VENNER CASE, QUOTING
FROM DOCTOR V. HARRINGTON, SET FORTH AS THE REASON FOR DISABLEMENT,
VIZ., THAT THE VERY INDIVIDUALS WHO HAVE A STRANGLEHOLD OVER THE
CORPORATION ARE THE PEOPLE AGAINST WHOM SUIT IS SOUGHT TO BE BROUGHT
AND, THEREFORE, IN ANY SENSE THAT HAS ANY MEANING, THEY ARE THE
DEFENDANTS FOR THAT REASON.  AND IT IS NOT MERELY THAT THE OBVIOUS
SENSE OF THE FOREGOING PARAGRAPH QUOTED FROM KOSTER GIVES THE
SIGNIFICANCE TO DOCTOR V. HARRINGTON THAT VENNER GAVE IT.  THAT MEANING
IS REINFORCED BY THE COURT'S SUCCEEDING REFERENCE TO A STOCKHOLDER'S
INTEREST IN "BRINGING FAITHLESS MANAGERS TO BOOK."  ID., AT 524. 

IN THE DISTRICT COURT IN NO. 316, SMITH V. SPERLING, JUDGE MATHES
MADE AN EXHAUSTIVE SURVEY OF ALL THE PRECEDENTS RELATING TO THE
JURISDICTIONAL TEST TO BE APPLIED IN STOCKHOLDERS' SUITS, 117 F. SUPP.
781, AFF'D, 237 F.2D 317, AND STATED THE JURISDICTIONAL TEST TO BE
DERIVED FROM THE CASES AS FOLLOWS: 

"IF THE CORPORATION HAS SUFFERED ACTIONABLE WRONG AND IS 'IN
ANTAGONISTIC HANDS' - I.E.  SO DOMINATED THAT IT IS INCAPACITATED TO
ACT IN KEEPING WITH ITS OWN FINANCIAL INTERESTS - THEN A FEDERAL COURT
SHOULD NOT, BECAUSE OF SUCH DISABILITY, ALIGN THE CORPORATION WITH THE
PLAINTIFF-STOCKHOLDER IN DETERMINING WHETHER DIVERSITY JURISDICTION
EXISTS."  117 F. SUPP., AT 801. 

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT TOOK THE SAME VIEW IN
NO. 149, SWANSON V. TRAER, 230 F.2D 228, 237. 

THE JURISDICTIONAL RULES THAT THE COURT HAS LAID DOWN FOR OVER HALF A
CENTURY - EMERGING FROM ALL THE CASES AND NOT MERELY FROM DOCTOR V.
HARRINGTON STANDING BY ITSELF - DO NOT REPRESENT A CAPRICIOUS OR
FORMALISTIC DETERMINATION AS TO WHEN THERE IS OR IS NOT DIVERSITY
JURISDICTION.  ON THE CONTRARY, THEY REPRESENT A TRUE APPRECIATION OF
THE NATURE OF THE STOCKHOLDER'S SUIT AND A FAITHFUL APPLICATION OF WELL
SETTLED PRINCIPLES OF DIVERSITY JURISDICTION:  WHEN A SUIT IS BROUGHT
THAT IS IN FACT AND IN LAW THE CORPORATION'S, THE CORPORATION FROM THE
NATURE OF THE CAUSE OF ACTION IS A PLAINTIFF AND MUST APPEAR AMONG THE
PLAINTIFFS, EXCEPT WHEN THE CORPORATION IS IN FACT THE TOOL OF THE VERY
PEOPLE AGAINST WHOM A JUDGMENT IS SOUGHT.  IN THE LATTER CIRCUMSTANCES
THE CORPORATION IS MERELY A COMPENDIOUS NAME FOR THE CONTROLLING
DEFENDANTS WHO ARE HIDING BEHIND IT. 

THE COURT, PURPORTING TO INTERPRET THIS HALF-CENTURY OF PRECEDENTS,
SWEEPS THEM AWAY.  IN SO DOING, IT GREATLY EXPANDS THE DIVERSITY
JURISDICTION.  "ANTAGONISM" IS A DIFFICULT STANDARD TO MEET AND IS A
MORE UNUSUAL SITUATION.  REFUSAL TO SUE PROVIDES AUTOMATIC ENTRY. 
MOREOVER, WHENEVER THE CORPORATION AND THE REAL DEFENDANTS ARE OF THE
SAME CITIZENSHIP, THERE WOULD BE NO DIVERSITY JURISDICTION UNLESS
ANTAGONISM COULD BE SHOWN.  NO SIMILAR RESTRICTION ON JURISDICTION IS
MADE BECAUSE OF POSSIBLE NON-DIVERSENESS OF THE STOCKHOLDER AND THE
CORPORATION DEFENDANT BECAUSE IT IS GENERALLY NOT TOO DIFFICULT TO FIND
A NON-DIVERSE STOCKHOLDER TO INSTITUTE SUIT. 

THE COURT PROFESSES TO DO NO MORE THAN TO APPLY WELL-SETTLED
PRECEDENTS.  BUT THE WELL-SETTLED PRECEDENTS THAT ARE APPLIED HAVE
ABSOLUTELY "NOTHING TO DO WITH THE CASE."  THE COURT HAS FOUND SUPPORT
IN THE LINE OF CASES THAT DEAL SOLELY WITH SUBSTANTIVE REQUIREMENTS OR
WITH THE PROCEDURAL RULES FOR ESTABLISHING COMPLIANCE WITH THOSE
REQUIREMENTS.  THESE HAVE NOTHING TO DO WITH THE CONSTITUTIONAL
JURISDICTION OF THE FEDERAL COURTS IN DIVERSITY SUITS. 

PRIOR TO THE JUDICIARY ACT OF 1875, 18 STAT. 470, THERE WAS ONLY VERY
LIMITED FEDERAL QUESTION JURISDICTION IN THE DISTRICT COURTS.  SEE HART
AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM, 727-730. 
MOREOVER, DIVERSITY JURISDICTION WAS ESTABLISHED ON THE BASIS OF THE
ALIGNMENT SET FORTH IN THE PLEADINGS.  REMOVAL CASES, 100 U.S. 457,
469.  IF A CORPORATION DESIRING TO BRING SUIT COULD NOT COME WITHIN THE
REQUIREMENTS OF DIVERSITY JURISDICTION, THE ONLY WAY ITS SUIT COULD BE
TRIED IN THE FEDERAL COURTS, PRIOR TO THE VAST ENLARGEMENT OF THEIR
JURISDICTION BY THE ACT OF 1875, WAS BY VIRTUE OF A SUIT BROUGHT ON ITS
BEHALF BY A STOCKHOLDER OF THE REQUISITE CITIZENSHIP.  THIS WAS THE
PROCEDURE FOLLOWED IN THE IMPORTANT CASE OF DODGE V. WOOLSEY, THE COURT
NOTING THAT ANY SUSPECTED ISSUE OF CONTRIVANCE SHOULD HAVE BEEN ALLEGED
AND PROVED BY THE DEFENDANT.  18 HOW.  331, 346.    THE RESULT OF THIS
PRACTICE WAS DESCRIBED BY MR. JUSTICE MILLER FOR THE COURT IN THE
LEADING CASE OF HAWES V. OAKLAND, 104 U.S. 450, 452. 

"SINCE THE DECISION OF THIS COURT IN DODGE V. WOOLSEY  ...  THE
FREQUENCY WITH WHICH THE MOST ORDINARY AND USUAL CHANCERY REMEDIES ARE
SOUGHT IN THE FEDERAL COURTS BY A SINGLE STOCKHOLDER OF A CORPORATION
WHO POSSESSES THE REQUISITE CITIZENSHIP, IN CASES WHERE THE CORPORATION
WHOSE RIGHTS ARE TO BE ENFORCED CANNOT SUE IN THOSE COURTS, SEEMS TO
JUSTIFY A CONSIDERATION OF THE GROUNDS ON WHICH THAT CASE WAS DECIDED,
AND OF THE JUST LIMITATIONS OF THE EXERCISE OF THOSE PRINCIPLES. 

"THIS PRACTICE HAS GROWN UNTIL THE CORPORATIONS CREATED BY THE LAWS OF
THE STATES BRING A LARGE PART OF THEIR CONTROVERSIES WITH THEIR
NEIGHBORS AND FELLOW-CITIZENS INTO THE COURTS OF THE UNITED STATES FOR
ADJUDICATION, INSTEAD OF RESORTING TO THE STATE COURTS, WHICH ARE THEIR
NATURAL, THEIR UNLAWFUL, AND THEIR APPROPRIATE FORUM  ...  .  A
CORPORATION HAVING SUCH A CONTROVERSY, WHICH IT IS FORESEEN MUST END IN
LITIGATION LITIGATION, AND PREFERRING FOR ANY REASON WHATEVER THAT THIS
LITIGATION SHALL TAKE PLACE IN A FEDERAL COURT, IN WHICH IT CAN NEITHER
SUE ITS REAL ANTAGONIST NOR BE SUED BY IT, HAS RECOURSE TO A HOLDER OF
ONE OF ITS SHARES, WHO IS A CITIZEN OF ANOTHER STATE.  THIS STOCKHOLDER
IS CALLED INTO CONSULTATION, AND IS TOLD THAT HIS CORPORATION HAS
RIGHTS WHICH THE DIRECTORS REFUSE TO ENFORCE OR TO PROTECT.  HE
INSTANTLY DEMANDS OF THEM TO DO THEIR DUTY IN THIS REGARD, WHICH OF
COURSE THEY FAIL OR REFUSE TO DO, AND THEREUPON HE DISCOVERS THAT HE
HAS TWO CAUSES OF ACTION ENTITLING HIM TO EQUITABLE RELIEF IN A COURT
OF CHANCERY; NAMELY, ONE AGAINST HIS OWN COMPANY  ...  FOR REFUSING TO
DO WHAT HE HAS REQUESTED THEM TO DO; AND THE OTHER AGAINST THE PARTY
WHICH CONTESTS THE MATTER IN CONTROVERSY WITH THAT CORPORATION.  THESE
TWO CAUSES OF ACTION HE COMBINES IN AN EQUITY SUIT IN THE CIRCUIT COURT
OF THE UNITED STATES, BECAUSE HE IS A CITIZEN OF A DIFFERENT STATE,
THOUGH THE REAL PARTIES TO THE CONTROVERSY COULD HAVE NO STANDING IN
THAT COURT.  ...  THE WHOLE CASE IS PREPARED FOR HEARING ON THE MERITS,
THE RIGHT OF THE STOCKHOLDER TO A STANDING IN EQUITY RECEIVES BUT
LITTLE ATTENTION, AND THE OVERBURDENED COURTS OF THE UNITED STATES HAVE
THIS ADDITIONAL IMPORTANT LITIGATION IMPOSED UPON THEM BY A SIMULATED
AND CONVENTIONAL ARRANGEMENT, UNAUTHORIZED BY THE FACTS OF THE CASE OR
BY THE SOUND PRINCIPLES OF EQUITY JURISDICTION."  ID., AT 452-453. 

THE COURT IN HAWES V. OAKLAND WAS NOT CONCERNED AT ALL WITH CONTROL
OF THE CORPORATION BY ALLEGEDLY WRONGDOING DIRECTORS FOR PURPOSES OF
ALIGNING THE PARTIES.  THE COURT WAS CONCERNED WITH IMPOSITION ON THE
JURISDICTION OF THE FEDERAL JUDICIARY IN THE GENERAL RUN OF
STOCKHOLDERS' ACTIONS, AND MORE PARTICULARLY, IN THE USUAL SITUATION
WHERE THE DEFENDANTS WOULD NOT BE DIRECTORS AT ALL BUT THIRD PARTIES
HAVING NOTHING TO DO WITH THE MANAGEMENT OF THE CORPORATION. 

THE COURT IN HAWES, THEREFORE, ANNOUNCED RESTRICTIONS UPON A
STOCKHOLDER ATTEMPTING TO BRING "A SUIT FOUNDED ON A RIGHT OF ACTION
EXISTING IN THE CORPORATION ITSELF, AND IN WHICH THE CORPORATION ITSELF
IS THE APPROPRIATE PLAINTIFF."  ID., AT 460.  NOT ONLY MUST A
COMPLAINANT SHOW SOME ULTRA VIRES OR FRAUDULENT ACTION BY THE DIRECTORS
BUT HE MUST ALSO DEMONSTRATE THAT HE WAS A SHAREHOLDER AT THE TIME OF
THE TRANSACTION COMPLAINED OF (OR ACQUIRED SHARES THEREAFTER BY
OPERATION OF LAW), THAT HE HAS MADE EFFORTS TO INDUCE THE DESIRED
ACTION BY THE DIRECTORS AND, IF NECESSARY, BY THE STOCKHOLDERS, AND
THAT "THE SUIT IS NOT A COLLUSIVE ONE TO CONFER ON A COURT OF THE
UNITED STATES JURISDICTION IN A CASE OF WHICH IT COULD OTHERWISE HAVE
NO COGNIZANCE  ...  ."  ID., AT 461.  THESE RULES WERE CODIFIED THAT
TERM IN EQUITY RULE 94, SEE 104 U.S. IX, NOW RULE 23(B) OF THE FEDERAL
RULES OF CIVIL PROCEDURE.  THEIR HISTORY AND PURPOSE INDICATE THE
CHARACTER OF THE REQUIREMENTS LAID DOWN BY THE COURT.  THEY DO NOT
DEFINE THE CONSTITUTIONAL JURISDICTION OF THE COURT; THEY ARE THE
ALLEGATIONS IN ANY EVENT REQUISITE TO THE COURT'S PROCEEDING TO
CONSIDER THE CASE.  IN HAWES ITSELF, THE COURT, AFTER FINDING THAT THE
STOCKHOLDER HAD NOT COMPLIED WITH THE REQUISITES FOR SUIT, DISMISSED
THE ACTION, NOT FOR WANT OF JURISDICTION, BUT FOR WANT OF EQUITY.  THE
ARGUMENT THAT COMPLIANCE WITH THE RULE WAS A JURISDICTIONAL REQUIREMENT
WAS MADE AND REJECTED IN VENNER V. GREAT NORTHERN R. CO., 209 U.S., AT
33-34:  "THIS ARGUMENT OVERLOOKS THE PURPOSE AND NATURE OF THE RULE ...
.  NEITHER THE RULE NOR THE DECISION FROM WHICH IT WAS DERIVED DEALS
WITH THE QUESTION OF THE JURISDICTION OF THE COURTS, BUT ONLY
PRESCRIBES THE MANNER IN WHICH THE JURISDICTION SHALL BE EXERCISED." 

COMPLIANCE WITH RULE 94 WAS THE ISSUE IN DELAWARE & HUDSON CO. V.
ALBANY & S.R. CO., 213 U.S. 435.   IN THAT CASE, THE LOWER COURT
CERTIFIED TO THIS COURT QUESTIONS CONCERNING MAINTENANCE OF A
STOCKHOLDERS' SUIT IN THE FACE OF FAILURE TO ALLEGE DEMAND FOR RELIEF
UPON THE DIRECTORS AND STOCKHOLDERS OF THE CORPORATION.  THE COURT HELD
THAT SUCH A DEMAND WOULD HAVE BEEN FUTILE IN VIEW OF THE CONTROL OF THE
DEFENDANT CORPORATION BY THE OTHER CORPORATE DEFENDANT.  IT WAS DURING
THE COURSE OF ITS DISCUSSION OF THE FUTILITY OF MAKING A DEMAND IN SUCH
A SITUATION THAT THE COURT STATED WHAT IS RELIED UPON BY THE COURT IN
THE PRESENT CASE - THAT THE "ATTITUDE OF THE DIRECTORS NEED NOT BE
SINISTER.  IT MAY BE SINCERE."  ID., AT 451.  OF COURSE, THE COURT IN
THAT CASE WAS QUITE CORRECT.  BUT IT WAS NOT CONCERNED WITH, OR
ADVERTING TO, JURISDICTIONAL ALIGNMENT, ANY MORE THAN IT WAS TALKING
ABOUT JURISDICTIONAL ALIGNMENT IN HAWES, ALSO NOW RELIED UPON BY THE
COURT.  BOTH CASES INVOLVED THE PRELIMINARY REQUIREMENTS FOR STATING A
CAUSE OF ACTION UNDER THE RULES.  (FOR A SIMILAR DISCUSSION OF WHAT
STOCKHOLDERS MUST ALLEGE WITH RESPECT TO THE ATTITUDE OF DIRECTORS, BUT
IN A CASE WHERE THERE WAS CLEARLY FEDERAL QUESTION JURISDICTION, SEE
ASHWANDER V. TVA, 297 U.S. 288, 318-323, AND 341-344.)* 

*THE CONFUSION BETWEEN THESE TWO LINES OF CASES - THE JURISDICTIONAL
ALIGNMENT CASES AND THE CASES DEALING WITH THE PROBLEMS WITH WHICH
FORMER EQUITY RULE 94 WAS CONCERNED - IS FULLY TREATED IN THE OPINION
OF DISTRICT JUDGE MATHES IN NO. 316.  SEE 117 F. SUPP. 781, 792-809. 

FURTHER CONFUSION IS INTRODUCED BY THE FACT THAT BOTH PROBLEMS -
JURISDICTIONAL ALIGNMENT AND COMPLIANCE WITH RULE 94 - MAY BE PRESENT
IN THE SAME CASE.  THIS WAS TRUE IN DOCTOR V. HARRINGTON, WHERE THE
COURT WAS NOT VERY CAREFUL IN MAKING EXPLICIT SEPARATION OF THE TWO
ISSUES; IT WAS ALSO TRUE OF VENNER V. GREAT NORTHERN R. CO., SUPRA,
WHERE THE COURT WAS VERY CAREFUL TO SEPARATE THE TWO ISSUES.  SUCH
SEPARATION OF VERY DIFFERENT CONCEPTS IS OF COURSE ESSENTIAL WHEN ONE
CHARACTERIZES THE ATTITUDE OF THE DIRECTORS.  IT IS ONE THING WHEN SUIT
IS AGAINST A THIRD PARTY TO HOLD THAT A DEMAND ON THE DIRECTORS NEED
NOT BE MADE IF SUCH DEMAND WOULD FOR ANY REASON BE FUTILE, AND THAT
SINCERE OPPOSITION BY DIRECTORS WOULD MAKE SUCH A DEMAND FUTILE.  IT IS
QUITE SOMETHING ELSE TO STATE THAT, SINCE SINCERE OPPOSITION IS
SUFFICIENT FOR THAT PURPOSE, IT IS ALSO SUFFICIENT TO DEMONSTRATE THAT
THE CORPORATION IS "DISABLED FROM PROTECTING ITSELF" AND SHOULD
THEREFORE BE ALIGNED AS A DEFENDANT.  THAT, AS WE HAVE SEEN, IS
FACTUALLY FALSE AND IS CONTRARY TO WHAT THIS COURT FOR 52 YEARS HAS
LAID DOWN AS THE CONTROLLING RULES GOVERNING DIVERSITY JURISDICTION. 

ONE FINAL MATTER OF GENERAL IMPORTANCE SHOULD BE DISCUSSED BEFORE
APPLYING THE GENERAL PRINCIPLES ADDUCED TO THE FACTS OF THE PRESENT
CASES.  THE COURT STATES:  "THE PROPER COURSE IS NOT TO TRY OUT THE
ISSUES PRESENTED BY THE CHARGES OF WRONGDOING BUT TO DETERMINE THE
ISSUE OF ANTAGONISM ON THE FACE OF THE PLEADINGS AND BY THE NATURE OF
THE CONTROVERSY."  OF COURSE THE CHARGES OF WRONGDOING NEED NOT BE
DETERMINED TO ASCERTAIN THE JURISDICTION OF THE FEDERAL COURTS.  WHAT
MUST BE DETERMINED WHEN DIRECTORS OR OTHER PERSONS ALLEGED TO CONTROL
THE CORPORATION ARE JOINED AS DEFENDANTS IS THE RELATION OF THESE
PEOPLE TO THE CORPORATION.  AND WHILE IN CERTAIN CASES THE ISSUES MAY
BE DETERMINED FROM THE FACE OF THE PLEADINGS, THE COURTS ARE NOT SO
LIMITED.  THE COURT SPEAKS OF MAKING "A PRACTICAL NOT A MECHANICAL
DETERMINATION," BUT A MORE MECHANICAL DETERMINATION COULD HARDLY BE
IMAGINED.  IF ANYTHING HAD BEEN REGARDED AS SETTLED UNTIL TODAY ABOUT
FEDERAL JURISDICTION, IT WAS THAT "IT IS OUT DUTY, AS IT IS THAT OF THE
LOWER FEDERAL COURTS, TO 'LOOK BEYOND THE PLEADINGS AND ARRANGE THE
PARTIES ACCORDING TO THEIR SIDES IN THE DISPUTE.'  DAWSON V. COLUMBIA
TRUST CO., 197 U.S. 178, 180."  INDIANAPOLIS V. CHASE NATIONAL BANK,
314 U.S. 63,69.  OF COURSE, THIS MAY TAKE TIME AND MAY NOT ALWAYS BE
EASY OF DETERMINATION.  I HAD NOT THOUGHT UP TO NOW THAT SUCH
CONSIDERATIONS SHOULD LEAD US TO DISREGARD OUR CONSTITUTIONAL
OBLIGATION, FOR, AS THE DISTRICT COURT IN NO. 316 STATED, "IT IS MORE
THAN COSTLY ERROR THEREFORE - IT IS AN UNCONSTITUTIONAL INVASION OF THE
JURISDICTION OF THE STATE COURTS - FOR A FEDERAL COURT TO SUSTAIN
FEDERAL JURISDICTION OF A CIVIL ACTION BETWEEN PRIVATE PERSONS WHERE
'THE MATTER IN CONTROVERSY' EXCEEDS THE SUM OR VALUE OF $3,000 ...  BUT
DOES NOT ARISE 'UNDER THE CONSTITUTION, LAWS OR TREATIES OF THE UNITED
STATES,'  ...  AND DIVERSITY OF CITIZENSHIP AS TO 'THE MATTER IN
CONTROVERSY' DOES NOT EXIST.  U.S. CONST. ART. III; 28 U.S.C. SEC. 1332
...  ."  117 F. SUPP., AT 808. 

THE PROCEEDINGS IN EACH OF THE PRESENT CASES HAVE FOLLOWED DIFFERENT
PATHS.  IN NO. 316, SMITH V. SPERLING, THE DISTRICT COURT HELD A
HEARING TO DETERMINE THE PRESENCE OF THE SPECIAL CIRCUMSTANCES THAT
THIS COURT'S DECISIONS INDICATED WOULD REQUIRE ALIGNMENT OF THE
CORPORATION AS A DEFENDANT.  IT DID NOT FIND SUCH CIRCUMSTANCES AND,
ALIGNING THE CORPORATION AS A PLAINTIFF, IT DISMISSED THE CAUSE OF
ACTION FOR LACK OF THE REQUISITE DIVERSITY.  117 F. SUPP. 781.  ON
APPEAL, THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED THIS ASPECT
OF THE CASE.  237 F.2D 317.  I FIND NO JUSTIFICATION FOR OVERTURNING
THE FINDINGS AND CONCLUSIONS OF THE DISTRICT COURT MADE AFTER EXTENDED
HEARING AND ANALYSIS AND AFFIRMED BY THE COURT OF APPEALS.  I WOULD
THEREFORE AFFIRM. 

IN NO. 149, SWANSON V. TRAER, THE DISTRICT COURT DISMISSED
PLAINTIFFS' COMPLAINT ON THE MERITS BECAUSE IT DID NOT APPEAR THAT THEY
HAD "LAID A FOUNDATION SUFFICIENT TO SUPPORT A DERIVATIVE STOCKHOLDERS'
SUIT."  ON APPEAL, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
AFFIRMED, BUT ON THE GROUND THAT NECESSARY REALIGNMENT OF THE
CORPORATION AS A PLAINTIFF DESTROYED DIVERSITY AND REQUIRED DISMISSAL
OF THE SUIT FOR LACK OF JURISDICTION.  230 F.2D 228.  EXAMINING THE
PLEADINGS, THE POSITION TAKEN BY THE CORPORATION IN THE LITIGATION,
ESPECIALLY THE AFFIDAVIT AND STATEMENT BY COUNSEL FOR THE CORPORATION,
THE COURT OF APPEALS CONCLUDED THAT "IN THEIR BUSINESS JUDGMENT, BOTH
THE DIRECTORS AND MR. BUSCH (THE CORPORATION'S COUNSEL) WERE OF THE
SINCERE OPINION THAT THE FILING OF SUCH A SUIT WOULD NOT BE FOR THE
BEST INTERESTS OF THE CORPORATION AND ITS STOCKHOLDERS.  THE NAMED
PLAINTIFFS DISAGREED.  THIS DIFFERENCE OF OPINION IS NOT OF ITSELF
EVIDENCE OF ANTAGONISM ON THE PART OF THE RAILWAY COMPANY."  ID., AT
237. 

THE COURT STATED THAT THE ALLEGATION OF THE COMPLAINT THAT "SEVERAL
MEMBERS" OF THE CORPORATION'S BOARD OF DIRECTORS AT THE TIME SUIT WAS
FILED HAD BEEN A PART OF THE ALLEGED CONSPIRACY WAS INSUFFICIENT TO
ALLEGE ANTAGONISM BY A MAJORITY OF THE BOARD.  THE COURT WAS ALSO
IMPRESSED BY A LENGTHY, DETAILED AFFIDAVIT FILED BY THE CORPORATION'S
COUNSEL, RETAINED AFTER THE TRANSACTIONS COMPLAINED OF, WHO STATED THAT
HE HAD REVIEWED THE TRANSACTION PURSUANT TO THE DIRECTION OF THE BOARD
OF DIRECTORS AND HAD ADVISED AGAINST SUIT.  THE FACTS RELIED ON BY THE
COURT OF APPEALS ARE NOT WITHOUT WEIGHT IN SUPPORT OF ITS CONCLUSION. 
THE PLAINTIFFS' GENERAL ALLEGATIONS, HOWEVER, IMPLY HOSTILITY ON THE
PART OF THE WHOLE BOARD OF DIRECTORS, AND, IN THIS STATE OF THE RECORD,
PLAINTIFFS SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO SUBSTANTIATE THEIR
ALLEGATIONS AT A HEARING BEFORE THE DISTRICT COURT, AS WAS THE
INDICATED COURSE OF PROCEEDING WHEN THE MATTER INITIALLY CAME BEFORE
THE DISTRICT COURT.  FOR THIS REASON, I WOULD REMAND THE CASE FOR SUCH
A HEARING. 
..END :












SWANSON V. TRAER 354 U.S. 114 


NO. 149.  ARGUED MARCH 27, 1957.  - DECIDED JUNE 10, 1957.  - 230 F.2D
228, REVERSED AND REMANDED. 


THIS IS A STOCKHOLDERS' DERIVATIVE SUIT BROUGHT IN A FEDERAL DISTRICT
COURT IN ILLINOIS ON GROUNDS OF DIVERSITY OF CITIZENSHIP BY CITIZENS OF
NEVADA AGAINST AN ILLINOIS CORPORATION, CERTAIN INDIVIDUAL CITIZENS OF
ILLINOIS, A DELAWARE CORPORATION AND AN INDIANA CORPORATION.  THE
COMPLAINT ALLEGED A CONSPIRACY TO DEFRAUD THE ILLINOIS CORPORATION
THROUGH SALES TO IT OF CERTAIN PROPERTIES IN WHICH SOME OF THE
DIRECTORS WERE PERSONALLY INTERESTED.  IT ALSO AVERRED A DEMAND ON THE
DIRECTORS TO BRING SUIT, THEIR REFUSAL TO DO SO, AND THE FUTILITY OF
MAKING ANY DEMAND ON THE STOCKHOLDERS.  THE COURT OF APPEALS CONCLUDED
THAT THERE WAS NO SUCH HOSTILITY TO THE PLAINTIFFS AS TO MAKE THE
ILLINOIS CORPORATION "ANTAGONISTIC" TO ITS STOCKHOLDERS, AND IT
REALIGNED THAT CORPORATION AS A PARTY PLAINTIFF AND AFFIRMED DISMISSAL
OF THE SUIT, ON THE GROUND THAT THERE WAS NO DIVERSITY JURISDICTION. 
HELD:  THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED.  PP. 115-117. 

(A)  THE MANAGEMENT IS DEFINITELY AND DISTINCTLY OPPOSED TO THE
INSTITUTION OF THIS LITIGATION; IT IS, THEREFORE, "ANTAGONISTIC" TO THE
STOCKHOLDERS; AND THE CORPORATION WAS PROPERLY MADE A DEFENDANT.  SMITH
V. SPERLING, ANTE, P. 91.  P. 116. 

(B)  WHETHER THE STOCKHOLDERS MAY SUE ON BEHALF OF THEIR CORPORATION
IS A QUESTION OF LOCAL LAW ON WHICH THE COURT OF APPEALS DID NOT RULE;
AND THE CASE IS REMANDED TO IT FOR CONSIDERATION OF THAT QUESTION.  PP.
116-117. 

SWANSON ET AL. V. TRAER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, A COMPANION CASE TO NO. 316, SMITH V. SPERLING, ANTE, P.
91, PRESENTS ANOTHER ASPECT OF THE PROBLEM OF REALIGNMENT OF PARTIES IN
A STOCKHOLDERS' DERIVATIVE SUIT THAT IS BROUGHT IN A FEDERAL DISTRICT
COURT ON THE BASIS OF DIVERSITY OF CITIZENSHIP.  PLAINTIFF-STOCKHOLDERS
ARE CITIZENS OF NEVADA AND STOCKHOLDERS IN THE CHICAGO NORTH SHORE &
MILWAUKEE RY. CO., AN ILLINOIS CORPORATION.  IT WAS MADE A DEFENDANT
ALONG WITH INDIVIDUALS, WHO ARE CITIZENS OF ILLINOIS, A DELAWARE
CORPORATION, AND AN INDIANA CORPORATION.  THE COMPLAINT CHARGED A
CONSPIRACY TO DEFRAUD THE RAILWAY CO. THE ALLEGED FRAUD CONSISTED OF A
SERIES OF SALES OF TRANSIT PROPERTIES TO THE RAILWAY CO., PROPERTIES IN
WHICH IT IS CHARGED SOME OF THE DIRECTORS WERE PERSONALLY INTERESTED. 
THE COMPLAINT AVERRED A DEMAND ON THE DIRECTORS TO BRING SUIT, A
REFUSAL ON THEIR PART, AND THE FUTILITY OF MAKING ANY DEMAND ON THE
STOCKHOLDERS. 

ANSWERS WERE FILED AND MOTIONS MADE TO DISMISS.  THE DISTRICT COURT
DISMISSED THE BILL ON THE GROUND THAT NO SHOWING HAD BEEN MADE THAT THE
REFUSAL OF THE MANAGEMENT TO ACT TO REDRESS THE ALLEGED WRONG WAS NOT A
DECISION ENTRUSTED TO THE GOOD-FAITH JUDGMENT OF THE DIRECTORS.  IN
OTHER WORDS, THE DISTRICT COURT CONCLUDED THAT THE CONTROVERSY DID NOT
FALL WITHIN THE EXCEPTIONAL GROUP OF CASES WHERE THE STOCKHOLDER MAY
DISPUTE THE MANAGEMENT AND TAKE THE REINS OF CORPORATE LITIGATION IN
HIS OWN HANDS. 

ON APPEAL, THE COURT OF APPEALS DID NOT REACH THAT QUESTION.  THOUGH
IT APPEARED FROM THE RECORD THAT THE DIRECTORS WERE OPPOSED TO THE
BRINGING OF THE SUIT, THE COURT OF APPEALS CONCLUDED THAT THERE WAS NO
SUCH HOSTILITY TO THE PLAINTIFFS AS TO MAKE IT "ANTAGONISTIC" WITHIN
THE MEANING OF THE CASES.  IT ACCORDINGLY REALIGNED THE CORPORATION AS
A PARTY PLAINTIFF.  SINCE THERE WERE THEN ILLINOIS CITIZENS ON EACH
SIDE OF THE LITIGATION, THE REQUISITE DIVERSITY WAS NOT PRESENT AND THE
ORDERS DISMISSING THE BILL WERE AFFIRMED.  230 F.2D 228.  THE CASE IS
HERE ON A WRIT OF CERTIORARI.  352 U.S. 865. 

FOR THE REASONS STATED IN SMITH V. SPERLING, SUPRA, WE THINK THIS
CASE IS AN INSTANCE WHERE THE MANAGEMENT - FOR GOOD REASONS OR FOR BAD
IS DEFINITELY AND DISTINCTLY OPPOSED TO THE INSTITUTION OF THIS
LITIGATION.  THE MANAGEMENT IS, THEREFORE ANTAGONISTIC TO THE
STOCKHOLDERS AS THAT CONCEPTION HAS BEEN USED IN THE CASES.  IT FOLLOWS
THAT THE CORPORATION WAS PROPERLY MADE A DEFENDANT. 

THERE REMAINS FOR CONSIDERATION THE QUESTION RULED ON BY THE DISTRICT
COURT AND WHICH THE COURT OF APPEALS DID NOT REACH, VIZ. WHETHER THIS
SUIT IS OF THAT EXCEPTIONAL CHARACTER WHICH STOCKHOLDERS MAY BRING. 

AS WE STATED IN SMITH V. SPERLING, ANTE, P. 91, SINCE OUR DECISION IN
ERIE R. CO. V. TOMPKINS, 304 U.S. 64, THE QUESTION WHETHER IN THESE
DIVERSITY SUITS A STOCKHOLDER MAY SUE ON BEHALF OF HIS CORPORATION IS
GOVERNED BY LOCAL LAW.  SEE COHEN V. BENEFICIAL LOAN CORP., 337 U.S.
541, 555-556.  THE CLASSICAL DESCRIPTION OF THOSE SITUATIONS IS
CONTAINED IN HAWES V. OAKLAND, 104 U.S. 450, 460: 

"SOME ACTION OR THREATENED ACTION OF THE MANAGING BOARD OF DIRECTORS
OR TRUSTEES OF THE CORPORATION WHICH IS BEYOND THE AUTHORITY CONFERRED
ON THEM BY THEIR CHARTER OR OTHER SOURCE OF ORGANIZATION: 

"OR SUCH A FRAUDULENT TRANSACTION COMPLETED OR CONTEMPLATED BY THE
ACTING MANAGERS, IN CONNECTION WITH SOME OTHER PARTY, OR AMONG
THEMSELVES, OR WITH OTHER SHAREHOLDERS AS WILL RESULT IN SERIOUS INJURY
TO THE CORPORATION, OR TO THE INTERESTS OF THE OTHER SHAREHOLDERS. 

"OR WHERE THE BOARD OF DIRECTORS, OR A MAJORITY OF THEM, ARE ACTING
FOR THEIR OWN INTEREST, IN A MANNER DESTRUCTIVE OF THE CORPORATION
ITSELF, OR OF THE RIGHTS OF THE OTHER SHAREHOLDERS. 

"OR WHERE THE MAJORITY OF SHAREHOLDERS THEMSELVES ARE OPPRESSIVELY
AND ILLEGALLY PURSUING A COURSE IN THE NAME OF THE CORPORATION, WHICH
IS IN VIOLATION OF THE RIGHTS OF THE OTHER SHAREHOLDERS, AND WHICH CAN
ONLY BE RESTRAINED BY THE AID OF A COURT OF EQUITY." 

WHETHER LOCAL LAW FOLLOWS THAT DEFINITION OR ADOPTS ANOTHER AND
WHETHER THIS CASE FALLS WITHIN THE ONE PROVIDED BY LOCAL LAW IS A
QUESTION ON WHICH THE COURT OF APPEALS HAS NOT RULED.  WE THEREFORE
REMAND THE CASE TO IT FOR CONSIDERATION OF THE QUESTION.  REVERSED. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE BURTON,
MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER, SEE ANTE, P. 98. 
..END :



CURCIO V. UNITED STATES 354 U.S. 118 


NO. 260.  ARGUED MARCH 28, 1957.  - DECIDED JUNE 10, 1957.  - 234 F.2D
470, REVERSED AND REMANDED. 


IN THE CIRCUMSTANCES OF THIS CASE, THE CUSTODIAN OF A UNION'S BOOKS
AND RECORDS, WHO HAD FAILED TO PRODUCE THEM BEFORE A FEDERAL GRAND JURY
PURSUANT TO SUBPOENA, COULD, ON THE GROUND OF HIS PRIVILEGE AGAINST
SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT, LAWFULLY REFUSE TO ANSWER
QUESTIONS ASKED BY THE GRAND JURY AS TO THE WHEREABOUTS OF SUCH BOOKS
AND RECORDS; AND HIS CONVICTION OF CRIMINAL CONTEMPT FOR REFUSING TO
ANSWER SUCH QUESTIONS IS REVERSED.  PP. 118-128. 

(A)  THOUGH THE CUSTODIAN OF THE BOOKS AND RECORDS OF A CORPORATION
OR A LABOR UNION MAY NOT, ON GROUNDS OF POSSIBLE SELF-INCRIMINATION,
REFUSE TO PRODUCE THEM PURSUANT TO SUBPOENA, HE CANNOT LAWFULLY BE
COMPELLED, IN THE ABSENCE OF A GRANT OF ADEQUATE IMMUNITY FROM
PROSECUTION, TO CONDEMN HIMSELF BY HIS OWN ORAL TESTIMONY.  PP. 122
128. 

(B)  IN THE CIRCUMSTANCES OF THIS CASE, THE QUESTIONS WHICH
PETITIONER REFUSED TO ANSWER WERE INCRIMINATING.  P. 121, N. 2. 

CURCIO V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER THE CUSTODIAN OF A UNION'S BOOKS
AND RECORDS MAY, ON THE GROUND OF HIS FIFTH AMENDMENT PRIVILEGE AGAINST
SELF-INCRIMINATION, REFUSE TO ANSWER QUESTIONS ASKED BY A FEDERAL GRAND
JURY AS TO THE WHEREABOUTS OF SUCH BOOKS AND RECORDS WHICH HE HAS NOT
PRODUCED PURSUANT TO SUBPOENA.  FOR THE REASONS HEREAFTER STATED, WE
HOLD THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION ATTACHES TO SUCH
QUESTIONS. 

IN APRIL 1956, A SPECIAL GRAND JURY IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WAS INVESTIGATING
RACKETEERING IN THE GARMENT AND TRUCKING INDUSTRIES IN NEW YORK CITY. 
THIS INVESTIGATION FOLLOWED WIDESPREAD CHARGES OF RACKETEERING IN LABOR
UNIONS, INCLUDING SPECIFIC CHARGES THAT SEVEN LOCAL UNIONS HAD BEEN
RECENTLY CHARTERED BY A FACTION OF THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS TO GAIN CONTROL OF THE TEAMSTERS' NEW YORK JOINT COUNCIL, AND
THAT THESE "PHANTOM UNIONS" WERE CONTROLLED BY A GROUP OF GANGSTERS, EX
CONVICTS AND LABOR RACKETEERS. 

PETITIONER, JOSEPH CURCIO, THE SECRETARY-TREASURER OF LOCAL 269 OF
THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ONE OF THE ALLEGED "PHANTOM
UNIONS," WAS SUBPOENAED TO APPEAR BEFORE THE GRAND JURY, AND TO PRODUCE
THE UNION'S BOOKS AND RECORDS.  THERE WERE TWO SUBPOENAS - A PERSONAL
SUBPOENA AD TESTIFICANDUM AND A SUBPOENA DUCES TECUM ADDRESSED TO HIM
IN HIS CAPACITY AS SECRETARY-TREASURER OF LOCAL 269.  ON SEVERAL DAYS
HE APPEARED BEFORE THE GRAND JURY BUT FAILED TO PRODUCE THE DEMANDED
BOOKS AND RECORDS.  HE TESTIFIED THAT HE WAS THE SECRETARY-TREASURER OF
LOCAL 269; THAT THE UNION HAD BOOKS AND RECORDS; BUT THAT THEY WERE NOT
THEN IN HIS POSSESSION.  HE REFUSED, ON THE GROUND OF SELF
INCRIMINATION, TO ANSWER ANY QUESTIONS PERTAINING TO THE WHEREABOUTS,
OR WHO HAD POSSESSION, OF THE BOOKS AND RECORDS HE HAD BEEN ORDERED TO
PRODUCE. 

THE DISTRICT COURT, AFTER A HEARING IN WHICH PETITIONER ATTEMPTED TO
JUSTIFY HIS CLAIM OF PRIVILEGE, DIRECTED PETITIONER TO ANSWER 15
QUESTIONS PERTAINING TO THE WHEREABOUTS OF THE BOOKS AND RECORDS. 
(FN1)  IT RULED THAT PETITIONER'S CLAIM OF PRIVILEGE WAS IMPROPER
BECAUSE HE HAD NOT MADE A SUFFICIENT SHOWING THAT HIS ANSWERS MIGHT
INCRIMINATE HIM.  WHEN PETITIONER PERSISTED IN HIS REFUSAL TO ANSWER,
THE DISTRICT COURT SUMMARILY ADJUDGED HIM GUILTY OF CRIMINAL CONTEMPT,
AND SENTENCED HIM TO SIX MONTHS' CONFINEMENT UNLESS HE SOONER PURGED
HIMSELF BY ANSWERING THE QUESTIONS.   THIS CONVICTION RELATED SOLELY TO
PETITIONER'S FAILURE TO ANSWER QUESTIONS ASKED PURSUANT TO THE PERSONAL
SUBPOENA AD TESTIFICANDUM.  HE HAS NOT BEEN CHARGED WITH FAILING TO
PRODUCE THE BOOKS AND RECORDS DEMANDED IN THE SUBPOENA DUCES TECUM. 

THE COURT OF APPEALS AFFIRMED THE CONVICTION.  234 F.2D 470.  IT HELD
THAT PETITIONER HAD FAILED TO SHOW THAT HIS ANSWERS TO THE 15 QUESTIONS
MIGHT INCRIMINATE HIM; THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION
DID NOT ATTACH TO QUESTIONS PUT TO A CUSTODIAN RELATING TO THE
WHEREABOUTS OF UNION BOOKS; AND THAT PETITIONER HAD BEEN ACCORDED A
FAIR HEARING.  WE GRANTED CERTIORARI TO DETERMINE WHETHER PETITIONER'S
CLAIM OF PRIVILEGE WAS PROPERLY DENIED.  352 U.S. 820. 

IN THE COURTS BELOW, THE GOVERNMENT CONTENDED THAT PETITIONER HAD NOT
MADE A SUFFICIENT SHOWING THAT ANSWERING THE 15 QUESTIONS MIGHT TEND TO
INCRIMINATE HIM.  THE GOVERNMENT NO LONGER SO CONTENDS.  IN ITS BRIEF
IT NOW SAYS, "WE MAKE NO CLAIM THAT, IF PETITIONER'S PERSONAL PRIVILEGE
DID APPLY TO QUESTIONS CONCERNING THE UNION RECORDS, HE FAILED TO MAKE
AN ADEQUATE SHOWING OF POSSIBLE INCRIMINATION."  THERE IS SUBSTANTIAL
GROUND FOR THE GOVERNMENT'S CONCESSION.  (FN2) 

WE TURN, THEREFORE, TO THE REMAINING ISSUE - WHETHER PETITIONER'S
PERSONAL PRIVILEGE AGAINST SELF-INCRIMINATION ATTACHES TO QUESTIONS
RELATING TO THE WHEREABOUTS OF THE UNION BOOKS AND RECORDS WHICH HE DID
NOT PRODUCE PURSUANT TO SUBPOENA. 

IT IS SETTLED THAT A CORPORATION IS NOT PROTECTED BY THE
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  A CORPORATE
OFFICER MAY NOT WITHHOLD TESTIMONY OR DECUMENTS ON THE GROUND THAT HIS
CORPORATION WOULD BE INCRIMINATED.  HALE V. HENKEL, 201 U.S. 43.  NOR
MAY THE CUSTODIAN OF CORPORATE BOOKS OR RECORDS WITHHOLD THEM ON THE
GROUND THAT HE PERSONALLY MIGHT BE INCRIMINATED BY THEIR PRODUCTION. 
WILSON V. UNITED STATES, 221 U.S. 361; ESSGEE CO. V. UNITED STATES, 262
U.S. 151.   EVEN AFTER THE DISSOLUTION OF A CORPORATION AND THE
TRANSFER OF ITS BOOKS TO INDIVIDUAL STOCKHOLDERS, THE TRANSFEREES MAY
NOT INVOKE THEIR PRIVILEGE WITH RESPECT TO THE FORMER CORPORATE
RECORDS.  GRANT V. UNITED STATES, 227 U.S. 74; WHEELER V. UNITED
STATES, 226 U.S. 478.  THE FOREGOING CASES STAND FOR THE PRINCIPLE THAT
THE BOOKS AND RECORDS OF CORPORATIONS CANNOT BE INSULATED FROM
REASONABLE DEMANDS OF GOVERNMENTAL AUTHORITIES BY A CLAIM OF PERSONAL
PRIVILEGE ON THE PART OF THEIR CUSTODIAN. 

IN UNITED STATES V. WHITE, 322 U.S. 694, THIS PRINCIPLE WAS APPLIED
TO AN UNINCORPORATED ASSOCIATION, A LABOR UNION.  STATING THAT THE
PRIVILEGE AGAINST SELF-INCRIMINATION HAD THE HISTORIC FUNCTION OF
"PROTECTING ONLY THE NATURAL INDIVIDUAL FROM COMPULSORY INCRIMINATION
THROUGH HIS OWN TESTIMONY OR PERSONAL RECRODS" (ID., AT 701), THE COURT
HELD THAT "THE PAPERS AND EFFECTS WHICH THE PRIVILEGE PROTECTS MUST BE
THE PRIVATE PROPERTY OF THE PERSON CLAIMING THE PRIVILEGE, OR AT LEAST
IN HIS POSSESSION IN A PURELY PERSONAL CAPACITY" (ID., AT 699). 

"BUT INDIVIDUALS, WHEN ACTING AS REPRESENTATIVES OF A COLLECTIVE
GROUP, CANNOT BE SAID TO BE EXERCISING THEIR PERSONAL RIGHTS AND DUTIES
NOR TO BE ENTITLED TO THEIR PURELY PERSONAL PRIVILEGES.  RATHER THEY
ASSUME THE RIGHTS, DUTIES AND PRIVILEGES OF THE ARTIFICIAL ENTITY OR
ASSOCIATION OF WHICH THEY ARE AGENTS OR OFFICERS AND THEY ARE BOUND BY
ITS OBLIGATIONS.  IN THEIR OFFICIAL CAPACITY, THEREFORE, THEY HAVE NO
PRIVILEGE AGAINST SELF-INCRIMINATION.  AND THE OFFICIAL RECORDS AND
DOCUMENTS OF THE ORGANIZATION THAT ARE HELD BY THEM IN A REPRESENTATIVE
RATHER THAN IN A PERSONAL CAPACITY CANNOT BE THE SUBJECT OF THE
PERSONAL PRIVILEGE AGAINST SELF-INCRIMINATION, EVEN THOUGH PRODUCTION
OF THE PAPERS MIGHT TEND TO INCRIMINATE THEM PERSONALLY."  ID., AT
699. 

THE GOVERNMENT NOW CONTENDS THAT THE REPRESENTATIVE DUTY WHICH
REQUIRED THE PRODUCTION OF UNION RECORDS IN THE WHITE CASE REQUIRES THE
GIVING OF ORAL TESTIMONY BY THE CUSTODIAN IN THIS CASE.  FROM THE FACT
THAT THE CUSTODIAN HAS NO PRIVILEGE WITH RESPECT TO THE UNION BOOKS IN
HIS POSSESSION, THE GOVERNMENT REASONS THAT HE ALSO HAS NO PRIVILEGE
WITH RESPECT TO QUESTIONS SEEKING TO ASCERTAIN THE WHEREABOUTS OF BOOKS
AND RECORDS WHICH HAVE BEEN SUBPOENAED BUT NOT PRODUCED.  IN OTHER
WORDS, WHEN THE CUSTODIAN FAILS TO PRODUCE THE BOOKS, HE MUST,
ACCORDING TO THE GOVERNMENT, EXPLAIN OR ACCOUNT UNDER OATH FOR THEIR
NONPRODUCTION, EVEN THOUGH TO DO SO MAY TEND TO INCRIMINATE HIM. 

THE FIFTH AMENDMENT SUGGESTS NO SUCH EXCEPTION.  IT GUARANTEES THAT
"NO PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF  ...  ."  A CUSTODIAN, BY ASSUMING THE DUTIES
OF HIS OFFICE, UNDERTAKES THE OBLIGATION TO PRODUCE THE BOOKS OF WHICH
HE IS CUSTODIAN IN RESPONSE TO A RIGHTFUL EXERCISE OF THE STATE'S
VISITORIAL POWERS.  BUT HE CANNOT LAWFULLY BE COMPELLED, IN THE ABSENCE
OF A GRANT OF ADEQUATE IMMUNITY FROM PROSECUTION, TO CONDEMN HIMSELF BY
HIS OWN ORAL TESTIMONY. 

IN THE WILSON CASE, SUPRA, WHICH IS THE LEADING CASE FOR THE
PROPOSITION THAT CORPORATE OFFICERS MAY NOT INVOKE THEIR PERSONAL
PRIVILEGE AGAINST SELF-INCRIMINATION TO PREVENT THE PRODUCTION OF
CORPORATE RECORDS, MR. JUSTICE HUGHES, SPEAKING FOR THE COURT, DREW THE
DISTINCTION SHARPLY.  HE SAID, "THEY (THE CUSTODIANS OF CORPORATE
RECORDS) MAY DECLINE TO UTTER UPON THE WITNESS STAND A SINGLE SELF
INCRIMINATING WORD.  THEY MAY DEMAND THAT ANY ACCUSATION AGAINST THEM
INDIVIDUALLY BE ESTABLISHED WITHOUT THE AID OF THEIR ORAL TESTIMONY OR
THE COMPULSORY PRODUCTION BY THEM OF THEIR PRIVATE PAPERS."  221 U.S.,
AT 385.  IN THE WHITE CASE, SUPRA, THE COURT WAS CAREFUL TO POINT OUT
THAT "THE SUBPOENA DUCES TECUM WAS DIRECTED TO THE UNION AND DEMANDED
THE PRODUCTION ONLY OF ITS OFFICIAL DOCUMENTS AND RECORDS" (322 U.S.,
AT 704), THAT "HE (WHITE, THE CUSTODIAN OF THE UNION'S RECORDS) HAD NOT
BEEN SUBPOENAED PERSONALLY TO TESTIFY" (ID., AT 695-696), AND THAT
"THERE WAS NO EFFORT OR INDICATED INTENTION TO EXAMINE HIM PERSONALLY
AS A WITNESS" (ID., AT 696).  AND IN SHAPIRO V. UNITED STATES, 335 U.S.
1, 27, HOLDING THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION DID NOT
APPLY TO RECORDS REQUIRED TO BE KEPT BY FOOD LICENSEES UNDER WARTIME
OPA REGULATIONS, THE COURT SAID, "OF COURSE ALL ORAL TESTIMONY BY
INDIVIDUALS CAN PROPERLY BE COMPELLED ONLY BY EXCHANGE OF IMMUNITY FOR
WAIVER OF PRIVILEGE."  THERE IS NO HINT IN THESE DECISIONS THAT A
CUSTODIAN OF CORPORATE OR ASSOCIATION BOOKS WAIVES HIS CONSTITUTIONAL
PRIVILEGE AS TO ORAL TESTIMONY BY ASSUMING THE DUTIES OF HIS OFFICE. 
BY ACCEPTING CUSTODIANSHIP OF RECORDS HE "HAS VOLUNTARILY ASSUMED A
DUTY WHICH OVERRIDES HIS CLAIM OF PRIVILEGE" ONLY WITH RESPECT TO THE
PRODUCTION OF THE RECORDS THEMSELVES.  WILSON V. UNITED STATES, 221
U.S. 361, 380. 

UNITED STATES V. AUSTIN-BAGLEY CORP., 31 F.2D 229, AND CASES
FOLLOWING IT (FN3) ARE RELIED UPON BY THE GOVERNMENT.  THOSE CASES,
HOLDING THAT A CORPORATE OFFICER WHO HAS BEEN REQUIRED BY SUBPOENA TO
PRODUCE CORPORATE DOCUMENTS MAY ALSO BE REQUIRED, BY ORAL TESTIMONY, TO
IDENTIFY THEM, ARE DISTINGUISHABLE AND WE NEED NOT PASS ON THEIR
VALIDITY.  THE CUSTODIAN'S ACT OF PRODUCING BOOKS OR RECORDS IN
RESPONSE TO A SUBPOENA DUCES TECUM IS ITSELF A REPRESENTATION THAT THE
DOCUMENTS PRODUCED ARE THOSE DEMANDED BY THE SUBPOENA.  REQUIRING THE
CUSTODIAN TO IDENTIFY OR AUTHENTICATE THE DOCUMENTS FOR ADMISSION IN
EVIDENCE MERELY MAKES EXPLICIT WHAT IS IMPLICIT IN THE PRODUCTION
ITSELF.   THE CUSTODIAN IS SUBJECTED TO LITTLE, IF ANY, FURTHER DANGER
OF INCRIMINATION.  HOWEVER, IN THE INSTANT CASE, THE GOVERNMENT IS
SEEKING TO COMPEL THE CUSTODIAN TO DO MORE THAN IDENTIFY DOCUMENTS
ALREADY PRODUCED.  IT SEEKS TO COMPEL HIM TO DISCLOSE, BY HIS ORAL
TESTIMONY, THE WHEREABOUTS OF BOOKS AND RECORDS WHICH HE HAS FAILED TO
PRODUCE.  IT EVEN SEEKS TO MAKE THE CUSTODIAN NAME THE PERSONS IN WHOSE
POSSESSION THE MISSING BOOKS MAY BE FOUND.  ANSWERS TO SUCH QUESTIONS
ARE MORE THAN "AUXILIARY TO THE PRODUCTION" OF UNPRIVILEGED CORPORATE
OR ASSOCIATION RECORDS.  (FN4) 

THE GOVERNMENT CITES BUT ONE FEDERAL CASE, UNITED STATES V. FIELD,
193 F.2D 92, AS DIRECTLY SUPPORTING ITS POSITION.  (FN5)  IN THAT CASE,
THE TRUSTEES OF A BAIL FUND WERE HELD IN CONTEMPT FOR FAILURE TO
PRODUCE RECORDS OF THE FUND PURSUANT TO A SUBPOENA.  AFTER AFFIRMING
THE CONVICTIONS ON THAT GROUND, THE COURT OF APPEALS FOR THE SECOND
CIRCUIT WENT ON TO CONSIDER, BY WAY OF DICTUM, OTHER CONTENTIONS RAISED
BY THE TRUSTEES.  ONE OF THEIR CONTENTIONS WAS THAT QUESTIONS ABOUT THE
LOCATION AND PRODUCTION OF RECORDS WERE IMPROPER.  THE COURT, RELYING
ON SEVERAL CASES IN WHICH A CUSTODIAN WAS COMPELLED TO IDENTIFY RECORDS
WHICH HE HAD ALREADY PRODUCED, SAID THAT THE QUESTIONS PERTAINING TO
THE LOCATION OF THE RECORDS "WERE PROPER UNDER THE PRECEDENTS."  ID.,
AT 97.  THE CASES CITED, HOWEVER, DO NOT SUPPORT THE COURT'S DICTUM. 
(FN6) 

THE GOVERNMENT SUGGESTS THAT SUBPOENAED CORPORATE AND ASSOCIATION
RECORDS WILL BE OBTAINED MORE READILY FOR LAW-ENFORCEMENT PURPOSES IF
THEIR CUSTODIAN IS THREATENED WITH SUMMARY COMMITMENT FOR CONTEMPT IN
FAILING TO TESTIFY AS TO THEIR WHEREABOUTS, RATHER THAN WITH
PROSECUTION FOR DISOBEDIENCE OF THE SUBPOENA TO PRODUCE THE RECORDS
THEMSELVES.  WE NEED NOT CONCERN OURSELVES WITH THE RELATIVE EFFICACY
OF THOSE PROCEDURES.  (FN7)  THERE IS A GREAT DIFFERENCE BETWEEN THEM. 
THE COMPULSORY PRODUCTION OF CORPORATE OR ASSOCIATION RECORDS BY THEIR
CUSTODIAN IS READILY JUSTIFIABLE, EVEN THOUGH THE CUSTODIAN PROTESTS
AGAINST IT FOR PERSONAL REASONS, BECAUSE HE DOES NOT OWN THE RECORDS
AND HAS NO LEGALLY COGNIZABLE INTEREST IN THEM.  HOWEVER, FORCING THE
CUSTODIAN TO TESTIFY ORALLY AS TO THE WHEREABOUTS OF NONPRODUCED
RECORDS REQUIRES HIM TO DISCLOSE THE CONTENTS OF HIS OWN MIND.  HE
MIGHT BE COMPELLED TO CONVICT HIMSELF OUT OF HIS OWN MOUTH.  THAT IS
CONTRARY TO THE SPIRIT AND LETTER OF THE FIFTH AMENDMENT. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
CASE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO ENTER A
JUDGMENT OF ACQUITTAL.  REVERSED AND REMANDED. 

FN1  THE QUESTIONS WERE AS FOLLOWS: 

"I AM GOING TO ASK YOU CERTAIN QUESTIONS, INCLUDING SOME THAT WERE
PUT TO YOU ON THURSDAY, WHICH YOU DECLINED TO ANSWER.  REFERRING TO THE
BOOKS AND RECORDS OF LOCAL 269 OF THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, HAVE YOU AT ANY TIME BEEN IN CUSTODY OF THOSE BOOKS AND
RECORDS?  ...  . 

"MR. CURCIO, HAVE YOU EVER HAD POSSESSION OF THE BOOKS AND RECORDS OF
THIS LOCAL?  ...  .    "DID YOU HAVE CUSTODY AND CONTROL OF THESE
RECORDS LAST THURSDAY?  ...  . 

"DO YOU HAVE POSSESSION OF THOSE RECORDS OR ANY OF THEM TODAY  ...
? 

"DO YOU HAVE CUSTODY AND CONTROL OF ANY OF THOSE RECORDS TODAY?  ...
. 

"WHERE ARE ANY OF THOSE RECORDS TODAY, IF YOU KNOW?  ...  . 

"WHO HAS ANY OF THOSE RECORDS TODAY, IF YOU KNOW?  ...  . 

"WHERE WERE ANY OF THESE RECORDS OR ALL OF THESE RECORDS A WEEK AGO
THURSDAY?  ...  . 

"WHERE WERE ANY OR ALL OF THESE RECORDS A WEEK AGO SATURDAY?  ...  . 

"WHERE WERE ANY OR ALL OF THESE RECORDS A WEEK AGO LAST MONDAY?  ...
.    "WHERE WERE ANY OR ALL OF THESE RECORDS YESTERDAY?  ...  . 

"WHERE ARE ANY OR ALL OF THESE RECORDS TODAY?  ...  . 

"WHO, IF YOU KNOW, HAD ANY OR ALL OF THESE RECORDS A WEEK AGO LAST
SATURDAY?  ...  . 

"WHO HAD ANY OR ALL OF THESE RECORDS A WEEK AGO YESTERDAY?  ...  . 

"WHO HAS ANY OR ALL OF THESE RECORDS TODAY?  ...  ." 

THE ABOVE QUESTIONS WERE SELECTED BY THE GOVERNMENT FROM 225 THAT
WERE ASKED PETITIONER BEFORE THE GRAND JURY.  HE WAS DIRECTED BY THE
FOREMAN OF THE GRAND JURY TO ANSWER THESE 15, AND, UPON HIS REFUSAL TO
DO SO UNDER CLAIM OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION, THE
DISTRICT COURT ADVISED HIM THAT IT PROPOSED TO ASK HIM THOSE QUESTIONS
ITSELF, AND THAT HIS FAILURE TO ANSWER THEM WOULD CONSTITUTE CONTEMPT
OF COURT.  THE DISTRICT JUDGE THEREUPON ASKED PETITIONER THESE
QUESTIONS IN OPEN COURT IN THE PRESENCE OF THE GRAND JURY.  PETITIONER
REFUSED TO ANSWER EACH OF THEM, AND STATED THAT HE REFUSED TO DO SO
BECAUSE HIS ANSWERS MIGHT TEND TO INCRIMINATE HIM. 

FN2  THE GRAND JURY WAS INVESTIGATING UNION RACKETEERING.  THE
NEWSPAPERS HAD FEATURED CHARGES THAT PETITIONER'S UNION WAS ONE OF
SEVEN "PHANTOM LOCALS" OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS
AND THAT IT WAS DOMINATED BY GANGSTERS AND RACKETEERS.  PETITIONER
CONCEDED THAT HE HAD A PRISON RECORD AND IT WAS CHARGED THAT THE
PRESIDENT OF LOCAL 269 WAS JOHNNY DIOGUARDIA, ALLEGEDLY ONE OF THE KEY
FIGURES IN UNION RACKETEERING IN THE NEW YORK AREA.  IN THIS CONTEXT,
THE QUESTIONS WERE INCRIMINATING.  SEE 18 U.S.C. SECS.  1503 AND 1951. 
"TO SUSTAIN THE PRIVILEGE, IT NEED ONLY BE EVIDENT 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, 341 U.S. 479, 486-487.  SEE ALSO,
TROCK V. UNITED STATES, 351 U.S. 976; EMSPAK V. UNITED STATES, 349 U.S.
190; SINGLETON V. UNITED STATES, 343 U.S. 944; GREENBERG V. UNITED
STATES, 343 U.S. 918. 

FN3  PULFORD V. UNITED STATES, 155 F.2D 944, 947; LUMBER PRODUCTS
ASSN. V. UNITED STATES, 144 F.2D 546, 553; CAROLENE PRODUCTS CO. V.
UNITED STATES, 140 F.2D 61, 66-67; UNITED STATES V. ILLINOIS ALCOHOL
CO., 45 F.2D 145, 149.  SEE ALSO, UNITED STATES V. LAY FISH CO., 13
F.2D 136, 137. 

FN4  THE LEADING CASE OF UNITED STATES V. AUSTIN-BAGLEY CORP., SUPRA,
AT 233, 234, EXPLAINS THE SCOPE AND LIMITATIONS OF THIS DOCTRINE.  IN
THAT CASE, THE SECRETARY-TREASURER OF A CORPORATION, WHO WAS CHARGED
WITH CONSPIRACY TO VIOLATE THE NATIONAL PROHIBITION ACT, WAS CALLED TO
STAND BY THE GOVERNMENT AND COMPELLED TO IDENTIFY THE MINUTES OF THE
CORPORATION.  CIRCUIT JUDGE LEARNED HAND, FOR THE COURT OF APPEALS,
UPHELD THIS PROCEDURE, STATING: 

"THAT THE PRODUCTION OF THE BOOKS AND DOCUMENTS COULD BE COMPELLED,
EVEN IF THEY CONTAINED ENTRIES INCRIMINATING THE ACCUSED, IS NOW WELL
SETTLED LAW  ...  .  HOWEVER, THE AVAILABILITY OF THE DOCUMENTS DOES
NOT NECESSARILY DETERMINE THAT OF THE TESTIMONY BY WHICH THEY MAY BE
AUTHENTICATED.  CONCEIVABLY IT MIGHT BE POSSIBLE TO FORCE THEIR
PRODUCTION, AND YET THEIR POSSESSOR BE PROTECTED FROM PROVING BY HIS
OATH THAT THEY WERE WHAT THEY PURPORT TO BE  ...  . 

"WHILE, THEREFORE, WE DO NOT DISGUISE THE FACT THAT THERE IS HERE A
POSSIBLE, IF TENUOUS, DISTINCTION, WE THINK THAT THE GREATER INCLUDES
THE LESS, AND THAT, SINCE THE PRODUCTION CAN BE FORCED, IT MAY BE MADE
EFFECTIVE BY COMPELLING THE PRODUCER TO DECLARE THAT THE DOCUMENTS ARE
GENUINE  ...  .  HENCE IT APPEARS TO US THAT THE CASE (HEIKE V. UNITED
STATES, 227 U.S. 131) DETERMINES THAT TESTIMONY AUXILIARY TO THE
PRODUCTION IS AS UNPRIVILEGED AS ARE THE DOCUMENTS THEMSELVES.  BY
ACCEPTING THE OFFICE OF CUSTODIAN THE HOLDER NOT ONLY EXPOSES HIMSELF
TO PRODUCING THE DOCUMENTS, BUT TO MAKING THEIR USE POSSIBLE WITHOUT
REQUIRING OTHER PROOF THAN HIS OWN." 

FN5  THE GOVERNMENT ALSO CITES BLEAKLEY V. SCHLESINGER, 294 N.Y. 312,
62 N.E.2D 85, HOLDING THAT A CORPORATION OFFICER WHO FAILS TO PRODUCE
CORPORATE RECORDS PURSUANT TO A SUBPOENA MUST GIVE A REASONABLE
EXPLANATION OR SUFFER THE PENALTY FOR NONPRODUCTION.  BUT CF. BRADLEY
V. O'HARE, 2 APP. DIV. 2D 436, 156 N.Y.S.2D 533, WHERE QUESTIONS PUT TO
A UNION OFFICIAL RELATING TO THE WHEREABOUTS OF UNION RECORDS WERE HELD
PRIVILEGED. 

FN6  MOREOVER, PRIOR AND SUBSEQUENT DECISIONS OF THE SAME COURT, IN
WHICH TWO OF THE SAME JUDGES PARTICIPATED, CONTRADICT THE STATEMENT
CONTAINED IN THE FIELD CASE.  IN UNITED STATES V. DAISART SPORTSWEAR,
INC., 169 F.2D 856, 861-862, THE COURT STATED THAT "WE DO NOT BELIEVE
THAT THE PRINCIPLE OF THE AUSTIN-BAGLEY CASE, SUPRA, MAY BE PROJECTED
SO THAT A CORPORATE OFFICER MAY BE COMPELLED TO TESTIFY AS TO ANY AND
ALL PHASES OF THE CORPORATION'S ACTIVITIES, WITHOUT AT THE SAME TIME
OBTAINING A GRANT OF IMMUNITY FOR THE INCRIMINATING MATTER HE IS
COMPELLED TO DISCLOSE."  AND FURTHER, THAT "THE PRODUCTION OF RECORDS
MUST BE DISTINGUISHED FROM ORAL TESTIMONY AS TO WHAT THE RECORDS WOULD
CONTAIN, HAD THEY BEEN PRODUCED."  ID., AT 862.  SUBSEQUENTLY, IN
UNITED STATES V. PATTERSON, 219 F.2D 659, 662, THE COURT, IN REVERSING
A CONTEMPT CONVICTION FOR REFUSAL TO PRODUCE RECORDS, APPROVED THE
TRIAL COURT'S RULING THAT QUESTIONS RELATING TO THE WHEREABOUTS OF THE
RECORDS WERE PRIVILEGED.  "THE DEFENDANT CAN HERE LEGALLY BE JAILED
ONLY FOR A CONTEMPT IN FAILING TO PRODUCE THE SOUGHT-AFTER BOOKS WHEN
THEY ARE FAIRLY SHOWN TO BE PRESENTLY WITHIN HIS POWER AND CONTROL.  HE
CANNOT LEGALLY BE JAILED FOR CONTEMPT FOR INVOKING HIS CONSTITUTIONALLY
PROTECTED PRIVILEGE NOT TO BE A WITNESS AGAINST HIMSELF." 

SEE ALSO, LOPIPARO V. UNITED STATES, 216 F.2D 87, WHERE THE TRIAL
COURT UPHELD THE CUSTODIAN'S CLAIM OF PRIVILEGE WITH RESPECT TO ORAL
TESTIMONY PERTAINING TO CORPORATE RECORDS. 

FN7  IN THIS CASE PETITIONER MIGHT HAVE BEEN PROCEEDED AGAINST FOR
HIS FAILURE TO PRODUCE THE RECORDS DEMANDED BY THE SUBPOENA DUCES
TECUM.  SEE NILVA V. UNITED STATES, 352 U.S. 385; UNITED STATES V.
FLEISCHMAN, 339 U.S. 349; UNITED STATES V. WHITE, 322 U.S. 694; WILSON
V. UNITED STATES, 221 U.S. 361. 

FROM A MEMORANDUM FILED BY THE GOVERNMENT, IT APPEARS THAT PETITIONER
LATER DID PRODUCE FOR THE GRAND JURY CERTAIN BOOKS AND RECORDS OF THE
UNION WHEN THREATENED WITH A COMMITMENT FOR CONTEMPT FOR HIS FAILURE TO
COMPLY WITH A SUBSEQUENT SUBPOENA DUCES TECUM ISSUED TO HIM IN HIS
REPRESENTATIVE CAPACITY.  THE GOVERNMENT SUGGESTED THAT THIS SUBSEQUENT
COMPLIANCE HAD RENDERED THIS PROCEEDING MOOT, BUT WE BELIEVE THAT IT
DID NOT DO SO BECAUSE THE ORDER FOR PETITIONER'S COMMITMENT WAS FOR
CRIMINAL, NOT CIVIL, CONTEMPT. 
..END :





















BRITISH TRANSPORT COMM'N V. UNITED STATES 354 U.S. 129 


NO. 247.  ARGUED APRIL 29, 1957.  - DECIDED JUNE 10, 1957.  - 230 F.2D
139, AFFIRMED. 


UNDER THE LIMITED LIABILITY ACT, 46 U.S.C. SECS. 181-196, THE UNITED
STATES FILED A PROCEEDING IN A FEDERAL DISTRICT COURT FOR EXONERATION
FROM, OR LIMITATION OF LIABILITY FOR, LOSS OR DAMAGE RESULTING FROM A
COLLISION IN THE NORTH SEA BETWEEN ONE OF ITS SHIPS AND A SHIP OWNED BY
THE BRITISH TRANSPORT COMMISSION.  THE COMMISSION AND OTHERS FILED
CLAIMS IN THE PROCEEDING.  WHILE THE PROCEEDING WAS PENDING, SOME OF
THE CLAIMANTS AGAINST THE AMERICAN SHIP FILED CROSS-CLAIMS AGAINST THE
BRITISH SHIP, AND THE UNITED STATES ASSERTED A "SET-OFF" AND A "CROSS
CLAIM" AGAINST THE BRITISH SHIP IN ANSWER TO THE LATTER'S CLAIM.  HELD:
THE CLAIMANTS AGAINST THE BRITISH SHIP MAY IMPLEAD THE COMMISSION TO
RESPOND TO ANY DAMAGES FOR LOSSES SUFFERED BY THEM IN THE COLLISION,
AND THE COURT HAVING JURISDICTION OF THE LIMITATION PROCEEDING MAY
PROCEED TO SETTLE ALL QUESTIONS APPROPRIATE TO, AND SEASONABLY RAISED
IN, THAT PROCEEDING BY PARTIES THERETO.  PP. 130-143. 

(A)  WHETHER IT BE BY ANALOGY TO ADMIRALTY RULE 56 OR BY VIRTUE OF
ADMIRALTY RULE 44, OR BY ADMIRALTY'S GENERAL RULES HERETOFORE
PROMULGATED BY THIS COURT, IT IS A NECESSARY CONCOMITANT OF
JURISDICTION IN A FACTUAL SITUATION SUCH AS THIS THAT THE COURT HAVE
POWER TO ADJUDICATE ALL OF THE DEMANDS MADE AND ARISING OUT OF THE SAME
DISASTER.  PP.  135-139. 

(B)  FAIRNESS IN LITIGATION REQUIRES THAT THOSE WHO SEEK AFFIRMATIVE
RECOVERY IN A COURT SHOULD BE SUBJECT THEREIN TO LIKE EXPOSURE FOR THE
DAMAGE RESULTING FROM THEIR ACTS CONNECTED WITH THE IDENTICAL
INCIDENT.  PP. 141-143. 

(C)  IN THE FINAL ANALYSIS, THE MANIFEST ADVANTAGES OF THIS CROSS
CLAIM PROCEDURE SERVE THE BEST INTERESTS OF ALL THE PARTIES BEFORE A
COURT OF THE UNITED STATES WHO FIND THEMSELVES THE UNFORTUNATE VICTIMS
OF MARITIME DISASTER.  P. 143. 

BRITISH TRANSPORT COMMISSION V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE BRITISH TRANSPORT COMMISSION, OWNER OF THE OVERNIGHT FERRY, DUKE
OF YORK, QUESTIONS THE POWER OF A DISTRICT COURT SITTING IN AN
ADMIRALTY LIMITATION PROCEEDING TO PERMIT THE PARTIES TO CROSS-CLAIM
AGAINST EACH OTHER FOR DAMAGES ARISING OUT OF THE SAME MARITIME
COLLISION.  THE UNITED STATES, AS OWNER OF THE U.S.N.S. HAITI VICTORY,
HAD FILED THE ORIGINAL PROCEEDING IN WHICH THE COMMISSION ALONG WITH
OTHERS FILED CLAIMS.  WHILE THE PROCEEDING WAS PENDING SOME OF THE
CLAIMANTS AGAINST THE HAITI FILED CROSS-CLAIMS AGAINST THE DUKE AND, IN
ADDITION, THE UNITED STATES ASSERTED A "SET-OFF" AND "CROSS-CLAIM"
AGAINST THE DUKE IN ANSWER TO THE LATTER'S CLAIM.  THE DISTRICT COURT
DISMISSED ALL OF THE CROSS-CLAIMS ON THE GROUND THAT "A LIMITATION
PROCEEDING DOES NOT PROVIDE A FORUM FOR THE ADJUDICATION OF LIABILITY
OF CO-CLAIMANTS TO EACH OTHER."  THE COURT OF APPEALS REVERSED HOLDING
THAT "AS A PRACTICAL MATTER AS WELL AS AN EQUITABLE ONE, THE CLAIMANTS
HEREIN SHOULD BE ALLOWED TO IMPLEAD THE COMMISSION."  230 F.2D 139,
144.  BECAUSE THE QUESTION IS AN IMPORTANT ONE OF ADMIRALTY
JURISDICTION WE GRANTED CERTIORARI, LIMITED TO THE LIMITATION
PROCEEDING QUESTION.  352 U.S. 821.  WE AGREE WITH THE COURT OF
APPEALS. 

ON MAY 6, 1953, IN THE NORTH SEA, THE NAVAL TRANSPORT, HAITI VICTORY,
OWNED BY THE UNITED STATES, RAMMED THE OVERNIGHT CHANNEL FERRY, DUKE OF
YORK, OWNED BY PETITIONER.  THE BOW OF THE DUKE BROKE AWAY FROM THE
VESSEL AND SANK AS A RESULT OF A DEEP CUT ON HER PORT SIDE JUST FORWARD
OF THE BRIDGE INFLICTED BY THE HAITI.  WHILE THE HAITI SUFFERED ONLY
MINOR DAMAGE THE DUKE'S LOSS WAS CLAIMED TO BE $1,500,000.  IN ADDITION
SEVERAL OF THE 437 PERSONS ABOARD THE DUKE WERE KILLED, MANY WERE
INJURED, AND MANY OF THEM LOST THEIR BAGGAGE.  THE HAITI RETURNED TO
THE UNITED STATES AND, THEREAFTER, THIS PROCEEDING WAS FILED UNDER
SECS. 183-186 OF THE LIMITED LIABILITY ACT, R.S. SECS. 4281-4289, AS
AMENDED, 46 U.S.C. SECS. 181-196, FOR EXONERATION FROM, OR LIMITATION
OF, LIABILITY FOR LOSS OR DAMAGE RESULTING FROM THE COLLISION.  THE
UNITED STATES AS PETITIONER FURTHER ALLEGED THAT THE COLLISION WAS
"CAUSED BY THE FAULT AND NEGLECT OF THE SS DUKE OF YORK AND THE PERSONS
IN CHARGE OF HER  ...  AND OCCURRED WITHOUT FAULT ON THE PART OF THE
PETITIONER  ...  ." 

THE DUKE FILED A CLAIM IN THE PROCEEDING FOR $1,500,000 AND IN
ADDITION AN ANSWER IN WHICH IT CLAIMED, INTER ALIA, THAT THE DAMAGES
RESULTING FROM THE COLLISION WERE "NOT CAUSED OR CONTRIBUTED TO BY ANY
FAULT OR NEGLIGENCE ON THE PART OF THIS CLAIMANT  ...  BUT WERE DONE,
OCCASIONED OR INCURRED WITH THE PRIVITY OR KNOWLEDGE OF AND WERE CAUSED
BY THE PETITIONER AND ITS MANAGING OFFICERS AND SUPERVISING AGENTS AND
THE MASTER OF THE HAITI VICTORY  ...  WHICH WILL BE SHOWN ON THE
TRIAL."  THE UNITED STATES ANSWERED THAT THE COLLISION "WAS OCCASIONED
BY EITHER THE SOLE FAULT OF THE DUKE OF YORK OR THE JOINT FAULT OF BOTH
THE DUKE OF YORK AND THE HAITI VICTORY"; IT ALLEGED DAMAGE TO THE HAITI
IN THE SUM OF $65,000, AND THAT IN ADDITION IT "HAS ALSO BEEN SUBJECTED
TO CLAIMS BY PASSENGERS AND MEMBERS OF THE CREWS OF BOTH VESSELS FILED
HEREIN, WHICH PRESENTLY APPROXIMATE $809,714 FOR PERSONAL INJURY AND
DEATH, AND $45,975 FOR PROPERTY DAMAGE OTHER THAN THAT CLAIMED BY THE
DUKE OF YORK; ALL OF WHICH DAMAGE IT PRAYS TO SET OFF AND RECOUP
AGAINST THE CLAIMANT, BRITISH TRANSPORT COMMISSION, AS OWNER OF THE
DUKE OF YORK  ...  ."  VARIOUS OF THE CLAIMANTS AGAINST THE HAITI IN
THE MEANWHILE FILED IMPLEADING PETITIONS AGAINST THE DUKE ALLEGING THE
COLLISION WAS "CAUSED OR CONTRIBUTED TO BY THE FAULT AND NEGLIGENCE OF
THE S.S. 'DUKE OF YORK' ...  " SETTING OUT, AS DID THE UNITED STATES,
THE PARTICULAR ACTS UPON WHICH THE CLAIM OF NEGLIGENCE WAS BASED.  THE
DISTRICT COURT DISMISSED ALL OF THESE CROSS-CLAIMS HOLDING THAT THE ACT
OFFERS "A FORUM FOR THE COMPLETE ADJUDICATION AND RECOVERY OF ALL
CLAIMS  ...  AGAINST THE PETITIONER ONLY ...  .  TO PERMIT ONE CLAIMANT
TO PROSECUTE ANOTHER CLAIMANT IN THE LIMITATION LITIGATION WOULD BE
UNFAIR.  THE LATTER HAS INTERVENED UNDER COMPULSION, THE COURT
ENJOINING HIS RESORT TO ANY OTHER TRIBUNAL.  THEREFORE, HIS
RESPONSIBILITY SHOULD NOT BE ENLARGED BEYOND THAT INCIDENT TO HIS
CLAIM.  OBEDIENCE TO THE INJUNCTION SHOULD NOT EXPOSE HIM TO AN ATTACK
TO WHICH, IN REGULAR COURSE, HE WOULD BE SUBJECT ONLY IN THE
JURISDICTION OF HIS RESIDENCE OR OTHER PLACE OF VOLUNTARY ENTRANCE." 

ON A HEARING "RESTRICTED TO THE ISSUES OF THE ASSERTED LIABILITIES OF
THE TWO VESSELS, DUKE OF YORK AND HAITI VICTORY, FOR THE COLLISION,"
THE COURT EXONERATED THE HAITI FROM ALL LIABILITY, HOLDING THE DUKE
SOLELY TO BLAME FOR THE COLLISION.  131 F. SUPP. 712.  THIS FINDING WAS
SUBSEQUENTLY AFFIRMED BY THE COURT OF APPEALS AND IS NOT BEFORE US.
(FN1)  IN REVERSING THE DISMISSAL OF THE CROSS-CLAIMS THE COURT OF
APPEALS REASONED THAT "MODERN CODES OF PROCEDURE HAVE REFLECTED TWO
FACETS:  (1) ALL RIGHTS, IF THIS CAN FAIRLY BE DONE, SHOULD BE DECIDED
IN A SINGLE LEGAL PROCEEDING; (2) PARTIES WHO SUBMIT THEMSELVES TO THE
JURISDICTION OF A COURT IN A LEGAL PROCEEDING SHOULD BE BOUND BY THAT
COURT'S DECISION ON ALL QUESTIONS, APPROPRIATE TO AND SEASONABLY RAISED
IN, THAT PROCEEDING.  THOSE IDEAS, WE THINK, CAN REASONABLY BE DEDUCED
FROM THE SPIRIT, IF NOT THE LETTER, OF THE 56TH ADMIRALTY RULE."  230
F.2D, AT 145. 

THE EXCELLENT COVERAGE THIS COURT'S CASES HAVE GIVEN THE HISTORICAL
INCIDENTS FORMING THE BACKGROUND THAT WENT INTO THE ADOPTION OF THE
LIMITED LIABILITY ACT RELIEVES US OF ANY MINUTE RECITATION OF THAT
HISTORY.  SEE NORWICH CO. V. WRIGHT, 13 WALL.  104 (1872); PROVIDENCE &
N.Y.S.S. CO. V. HILL MFG. CO., 109 U.S. 578 (1883); THE MAIN V.
WILLIAMS, 152 U.S. 122 (1894); JUST V. CHAMBERS, 312 U.S. 383 (1941). 
THE HISTORY SHOWS THAT ALTHOUGH THE ACT WAS PATTERNED ON EARLIER
ENGLISH STATUTES ITS FOUNDATIONS SPRANG FROM THE ROOTS OF THE GENERAL
MARITIME LAW OF MEDIEVAL EUROPE.  "THE REAL OBJECT OF THE ACT  ...  WAS
TO LIMIT THE LIABILITY OF VESSEL OWNERS TO THEIR INTEREST IN THE
ADVENTURE," THE MAIN V. WILLIAMS, SUPRA, AT 131, AND THUS "TO ENCOURAGE
SHIP-BUILDING AND TO INDUCE CAPITALISTS TO INVEST MONEY IN THIS BRANCH
OF INDUSTRY," NORWICH CO. V. WRIGHT, SUPRA, AT 121. 

THE CONGRESS BY THE PROVISIONS OF THE ACT LEFT THE FORM AND MODES OF
PROCEDURE TO THE JUDICIARY.  TWENTY YEARS AFTER PASSAGE OF THE ACT THIS
COURT ADOPTED SOME GENERAL RULES WITH RESPECT TO ADMIRALTY PRACTICE. 
SEE 13 WALL.  XII AND XIII.  RULE 56 FIRST CAME INTO THE GENERAL
ADMIRALTY RULES AS RULE 59.  (FN2)  AS WILL BE NOTED, IT WAS ORIGINALLY
FASHIONED TO ACCOMMODATE CROSS-LIBELS IN MARINE COLLISION CASES, BUT
ACTING UPON THE SAME INHERENT POWER TO BRING INTO THE PROCEEDING OTHER
PARTIES WHOSE PRESENCE WOULD ENABLE THE COURT TO DO SUBSTANTIAL JUSTICE
IN REGARD TO THE ENTIRE MATTER, THE COURTS SOON BEGAN TO EXTEND THE
PRACTICE BY ANALOGY TO CASES OTHER THAN COLLISION.  SEE, E.G., THE
ALERT, 40 F. 836 (1889); 3 MOORE, FEDERAL PRACTICE (2D ED. 1948), 450
456.  AS IT IS EXPRESSED IN 2 BENEDICT, ADMIRALTY (6TH ED. 1940), SEC.
349, AT 534, "THE 'EQUITY OF RULE' WAS GIVEN WIDE EXTENSION AND THE
PRINCIPLE  ...  WAS APPLIED BY ANALOGY TO REQUIRE THE APPEARANCE OF ANY
ADDITIONAL RESPONDENT WHO MIGHT BE RESPONSIBLE FOR THE CLAIM OR A PART
THEREOF."  IN THE 1920 REVISION THE 59TH RULE BECAME THE 56TH GENERAL
ADMIRALTY RULE AND, AS AMENDED BY THIS COURT, AUTHORIZED EITHER A
CLAIMANT OR RESPONDENT TO BRING IN ANY OTHER VESSEL OR PERSON "PARTLY
OR WHOLLY LIABLE  ...  BY WAY OF REMEDY OVER, CONTRIBUTION OR
OTHERWISE, GROWING OUT OF THE SAME MATTER."  254 U.S. 707.  (FN3)  THE
PRESENT-DAY LIMITATION PROCEEDING, THEREFORE SPRINGS FROM THE 1851 ACT
AND THIS COURT'S RULES.  NEITHER SOURCE INDICATES THAT ADMIRALTY
LIMITATION PRECLUDED OTHER ORDINARY ADMIRALTY PROCEDURES.  IN FACT, AS
MR. JUSTICE BRADLEY PUT IT IN THE SCOTLAND, 105 U.S. 24, 33 (1881), "WE
MAY SAY, ONCE FOR ALL, THAT THE RULES WERE NOT INTENDED TO RESTRICT
PARTIES CLAIMING THE BENEFIT OF THE LAW, BUT TO AID THEM  ...  .  THE
RULES REFERRED TO WERE ADOPTED FOR THE PURPOSE OF FORMULATING A
PROCEEDING THAT WOULD GIVE FULL PROTECTION TO THE SHIP-OWNERS IN SUCH A
CASE.  THEY WERE NOT INTENDED TO PREVENT THEM FROM AVAILING THEMSELVES
OF ANY OTHER REMEDY OR PROCESS WHICH THE LAW ITSELF MIGHT ENTITLE THEM
TO ADOPT."  ACCORD, EX PARTE SLAYTON, 105 U.S. 451 (1882). 

IT IS THE COMMISSION'S CONTENTION THAT RULE 56 IS WHOLLY INAPPLICABLE
TO THE ADJUDICATION OF A CLAIM OF ONE CO-CLAIMANT AGAINST ANOTHER IN A
LIMITATION PROCEEDING.  THE RULE, IT SAYS, REFERS TO LIBELS AND THE USE
OF THE WORD "CLAIMANT" INCLUDES ONLY THE CLAIMANT OF THE VESSEL
INVOLVED AND NOT TO THOSE MAKING CLAIMS AGAINST THE VESSEL.  BUT WE
HAVE SEEN THAT RULE 56 HAS LONG BEEN HELD TO ENCOMPASS CROSS-CLAIMS
BETWEEN PARTIES IN LIBEL ACTIONS.  THIS COURT HAS HELD THAT LIMITATION
OF LIABILITY PETITIONS MAY ALSO BE DETERMINED BY APPROPRIATE PLEADING
IN LIBEL ACTIONS.  SEE THE NORTH STAR, 106 U.S. 17 (1882), AND THE
DISCUSSION INFRA.  IT MAY THEREFORE BE SAID THAT A LIMITATION
PROCEEDING NOT ONLY PROVIDES CONCOURSE BUT SERVES THE FUNCTION OF A
CROSS-LIBEL TO DETERMINE THE RIGHTS BETWEEN PETITIONER AND CLAIMANTS AS
WELL; AND EQUITABLE RIGHTS BETWEEN THE LIMITATION PETITIONER AND A
CLAIMANT HAVE LONG BEEN RECOGNIZED AS ENCOMPASSED IN RULE 50.  (FN4)
MOORE-MCCORMACK LINES, INC. V. MCMAHON, 235 F.2D 142 (1956).  IT
APPEARS THEN THAT HAD THIS PROCEEDING STARTED OUT AS A LIBEL THE
COMMISSION ADMITTEDLY WOULD HAVE NO COMPLAINT.  AND AS WE HAVE POINTED
OUT, THE RULES WERE NOT PROMULGATED AS TECHNICALITIES RESTRICTING THE
PARTIES AS WELL AS THE ADMIRALTY COURT IN THE ADJUDICATION OF RELEVANT
ISSUES BEFORE IT.  THERE SHOULD THEREFORE BE NO REQUIREMENT THAT THE
FACTS OF A CASE BE TAILORED TO FIT THE EXACT LANGUAGE OF A RULE.  THE
INITIAL PETITION FILED IN THE LIMITATION PROCEEDING ALLEGED THAT THE
DUKE WAS WHOLLY OR PARTLY AT FAULT AND ASKED FOR A "SET-OFF" OR "CROSS
CLAIM" AGAINST IT; THE COMMISSION ENTERED THE CASE NOT ONLY TO PROVE
ITS CLAIM BUT TO CONTEST THIS ALLEGATION OF NEGLIGENCE AGAINST THE
DUKE.  THE CLAIMANTS ARE ALL PRESENT IN THE LITIGATION.  THE UNITED
STATES HAS NOW FILED A CROSS-CLAIM OR CROSS-LIBEL AGAINST THE
COMMISSION, IT ALREADY BEING A PARTY TO THE SUIT AND BEFORE THE COURT. 
THE QUESTION IS NOT WHAT "TAG" WE PUT ON THE PROCEEDING, OR WHETHER IT
IS A "SUIT" UNDER RULE 56 OR A LIBEL IN PERSONAM, OR WHETHER THE
PLEADING IS OF AN OFFENSIVE OR DEFENSIVE NATURE, BUT RATHER WHETHER THE
COURT HAS JURISDICTION OF THE SUBJECT MATTER AND OF THE PARTIES.  IT IS
SUFFICIENT TO SAY AS DID CHIEF JUSTICE TAFT FOR A UNANIMOUS COURT IN
HARTFORD ACCIDENT & INDEMNITY CO. V. SOUTHERN PACIFIC CO., 273 U.S. 207
(1927), "THAT ALL THE EASE WITH WHICH RIGHTS CAN BE ADJUSTED IN EQUITY
IS INTENDED TO BE GIVEN TO THE LIMITATION PROCEEDING.  IT IS THE
ADMINISTRATION OF EQUITY IN AN ADMIRALTY COURT  ...  .  IT LOOKS TO A
COMPLETE AND JUST DISPOSITION OF A MANY CORNERED CONTROVERSY  ...  ." 
ID., AT 216.  SEE ALSO THE OPINION OF CHIEF JUSTICE HUGHES FOR A
UNANIMOUS COURT IN JUST V. CHAMBERS, 312 U.S. 383, 386-387 (1941).  WE
DO NOT BELIEVE THAT THE ANALOGY TO EQUITY IS SHADOWY.  THE CLAIMANTS IN
THIS PROCEEDING HAVE JUST CLAIMS ARISING OUT OF THE COLLISION OF THE
HAITI AND THE DUKE.  THEY HAVE AS MUCH INTEREST IN THE POTENTIAL
LIABILITY RESULTING FROM THAT MARINE DISASTER AS HAS THE EQUITY
RECEIVER IN PERFECTING THE RES OF THE ESTATE.  THE SCOPE OF THE
PROCEEDING IS NOT LIMITED TO A DETERMINATION OF THE PETITIONER'S FAULT
NOR TO ITS INTEREST IN THE HAITI.  IN FACT, HERE THE FAULT OF THE
DISASTER, A MATTER OF LEGITIMATE INTEREST TO THE CLAIMANTS, HAS BEEN
ADJUDICATED AGAINST THE COMMISSION AND IT ADMITS THIS JUDGMENT IS RES
JUDICATA IN ALL COURTS.  WHY DOES IT NOT FOLLOW THAT THE CLAIMANTS,
SCATTERED AS THEY ARE IN EIGHT COUNTRIES OF THE WORLD BUT ALL PRESENT
IN THIS PROCEEDING, SHOULD RECOVER JUDGMENT FOR THEIR DAMAGES?  WHY
SHOULD EACH BE REQUIRED TO FILE A SECONDARY ACTION IN THE COURTS OF
ANOTHER COUNTRY MERELY TO PROVE THE AMOUNT OF HIS DUE WHEN THE SAME
EVIDENCE IS ALREADY BEFORE THE ADMIRALTY COURT HERE? 

LOGIC AND EFFICIENT JUDICIAL ADMINISTRATION REQUIRE THAT RECOVERY
AGAINST ALL PARTIES AT FAULT IS AS NECESSARY TO THE CLAIMANTS AS IS THE
FUND WHICH LIMITED THE LIABILITY OF THE INITIAL PETITIONER.  OTHERWISE
THIS PROCEEDING IS BUT A "WATER HAUL" FOR THE CLAIMANTS, A RESULT
COMPLETELY OUT OF CHARACTER IN ADMIRALTY PRACTICE.  FURTHERMORE, THE
COMMISSION ENTERED THIS PROCEEDING VOLUNTARILY WITHOUT COMPULSION.  IT
FILED AN ANSWER ASKING THAT JUSTICE BE DONE REGARDING THE SUBJECT
MATTER, THE COLLISION; IT DENIED ALL FAULT ON ITS PART AND
AFFIRMATIVELY SOUGHT TO PLACE ALL BLAME ON THE HAITI; IT CLAIMED DAMAGE
IN THE SUM OF $1,500,000; AND IT CONTESTED THE HAITI'S CLAIM OF
LIMITATION OR EXONERATION.  IN ALL OF THESE RESPECTS JUDGMENT WENT
AGAINST THE COMMISSION - IT LOST.  NOW HAVING LOST, IT CLAIMS THAT THE
COURT HAS WHOLLY LOST JURISDICTION WHILE HAD IT WON, JURISDICTION TO
ENTER JUDGMENT ON ALL CLAIMS WOULD HAVE CONTINUED.  IT ASSERTS THAT
NEITHER THE HAITI, WHICH WAS DAMAGED TO THE EXTENT OF SOME $65,000, NOR
ANY OF THE OTHER 115 CLAIMANTS MAY PROVE THEIR LOSSES AGAINST IT.  BUT
REASON COMPELS THE CONCLUSION THAT IF THE COURT HAD POWER TO ADMINISTER
JUSTICE IN THE EVENT THE COMMISSION HAD WON, IT SHOULD HAVE LIKE POWER
WHEN IT LOST.  WHETHER IT IS BY ANALOGY TO RULE 56 OR BY VIRTUE OF RULE
44, (FN5) OR BY ADMIRALTY'S GENERAL RULES HERETOFORE PROMULGATED BY
THIS COURT, WE HOLD IT A NECESSARY CONCOMITANT OF JURISDICTION IN A
FACTUAL SITUATION SUCH AS THIS ONE THAT THE COURT HAVE POWER TO
ADJUDICATE ALL OF THE DEMANDS MADE AND ARISING OUT OF THE SAME
DISASTER.  THIS TOO REFLECTS THE BASIC POLICY OF THE FEDERAL RULES OF
CIVIL PROCEDURE.  ADMIRALTY PRACTICE, WHICH HAS SERVED AS THE ORIGIN OF
MUCH OF OUR MODERN FEDERAL PROCEDURE, SHOULD NOT BE TIED TO THE MAST OF
LEGAL TECHNICALITIES IT HAS BEEN THE FORERUNNER IN ELIMINATING FROM
OTHER FEDERAL PRACTICES. 

IT IS TRUE THAT NO CASE OF THIS COURT HAS PASSED ON THE QUESTION
DIRECTLY.  HOWEVER, EXAMINATION OF THE PRACTICE OF AMERICAN ADMIRALTY
COURTS INDICATES THAT CROSS-LIBEL PROCEDURES HAVE BEEN RESORTED TO
BETWEEN CO-PARTIES IN A LIMITATION CONCURSUS AT LEAST SINCE THE NORTH
STAR, 106 U.S. 17 (1882).  WHILE INITIALLY THAT CASE WAS NOT A
LIMITATION PROCEEDING, THIS COURT HELD THAT BOTH PARTIES COULD HAVE
OBTAINED A LIMITATION OF LIABILITY IF ENTITLED TO IT WITHOUT THE
NECESSITY OF SEPARATE SUITS.  IN THE MANITOBA, 122 U.S. 97 (1887), BOTH
THE LIBELANT AND THE CROSS-LIBELANT SOUGHT AND RECEIVED THE BENEFIT OF
LIABILITY LIMITATION.  THEREAFTER, IN THE CITY OF BOSTON, 182 F. 171
(1909), A DISTRICT COURT ALLOWED THE FILING OF CROSS-CLAIMS IN THE
LIMITATION PROCEEDING THERE BEGUN.  IT IS OF INTEREST TO NOTE THAT
WHILE THERE WAS NO EXPRESS RULE AT THE TIME PERMITTING SUCH PROCEDURE
IT WAS GRANTED "FOLLOWING THE ANALOGY OF ADMIRALTY RULE 59 (NOW RULE
56)."  IT WAS THOUGHT THAT "THE SAME CLAIM FOR CONTRIBUTION WHICH  ...
MIGHT BE RECOVERED IN AN INDEPENDENT SUIT" COULD PROPERLY BE
ADJUDICATED BY A CROSS-CLAIM ALTHOUGH THERE WAS NO "REPORTED PRECEDENT
FOR THE ALLOWANCE OF SUCH A CLAIM IN LIMITED LIABILITY PROCEEDINGS." 
IN RE EASTERN DREDGING CO., 182 F. 179, 183 (1909).  IN 1919 THE SECOND
CIRCUIT DECIDED THE ADAH, 258 F. 377, IN WHICH JUDGE HOUGH DECLARED
THAT "WHETHER IT WAS NECESSARY, IN ABSOLVING THE ADAH, TO FIX BLAME ON
SOME ONE ELSE, IS A QUESTION WE NEED NOT DECIDE."  BUT WHERE THE
PARTIES ENTER THE LIMITATION PROCEEDING, THE COURT HELD "IT IS ENOUGH
THAT THEY DID COME IN, AND MADE PARTIES OF THEMSELVES  ...  .  HAVING
BECOME PARTIES, THEY ARE BOUND BY THE DECREE ENTERED IN THE SUIT
WHEREIN THEY ARE PARTIES."  ID., AT 381.  AND THIS WAS BUT THE ECHO OF
MR. JUSTICE BRADLEY IN THE SCOTLAND, SUPRA, WHERE HE SAID, "WHEN
PARTIES CHOOSE TO RESORT TO A NATION'S FORUM FOR REDRESS" THEY CANNOT
"COMPLAIN OF THE DETERMINATION OF THEIR RIGHTS BY THAT LAW  ...  ." 
105 U.S., AT 31-32.  LATER IN IN RE UNITED STATES STEEL PRODUCTS CO.,
24 F.2D 657 (1928), THE SECOND CIRCUIT SQUARELY DECIDED THAT CROSS
CLAIMS WERE PROPERLY CONSIDERED IN LIMITATION PROCEEDINGS.  THE UNITED
STATES' CLAIM IN LIMITATION WAS "A RIGHT OF SUIT IN ADMIRALTY AGAINST
THE STEEL INVENTOR," ID., AT 659, THE COURT SAID, WHICH SUBJECTED IT TO
CROSS-SUIT, CITING UNITED STATES V. THE THEKLA, 266 U.S. 328 (1924). 
SEE ALSO THE STEEL INVENTOR, 43 F.2D 958 (1930).  AND AS RECENTLY AS
MOORE-MCCORMACK LINES, INC. V. MCMAHON, 235 F.2D 142 (1956), THE SECOND
CIRCUIT UNANIMOUSLY REAFFIRMED THE PRINCIPLES OF THESE CASES.  IT
REASONED THAT SINCE ALL OF THE CLAIMS AROSE OUT OF THE SAME INCIDENT
THEY SHOULD BE DETERMINED IN A SINGLE CAUSE, THUS EFFECTUATING AN
"ECONOMY OF TRIAL LITIGATION" SO MUCH DESIRED IN JUDICIAL
ADMINISTRATION. 

PETITIONER POINTS TO CASES FROM THE SECOND CIRCUIT IN WHICH CROSS
CLAIMS WERE NOT PERMITTED.  (FN6)  BUT WE FIND NONE APPOSITE TO THIS
CASE, OTHER THAN PERHAPS NEW JERSEY BARGING CORP. V. T.A.D. JONES &
CO., 135 F. SUPP. 97 (1955).  THAT CASE HELD THAT THE IMPLEADING OF THE
CLAIMANT WOULD CONVERT A PROCEEDING TO LIMIT THE PETITIONERS' LIABILITY
TO A PROCEEDING BY OTHER CLAIMANTS AGAINST THE IMPLEADED CLAIMANT. 
WHILE IT IS SUFFICIENT TO SAY THAT NEW JERSEY BARGING CORP. HAS
SUBSEQUENTLY, IN EFFECT, BEEN OVERRULED BY THE SECOND CIRCUIT IN MOORE
MCCORMACK LINES, INC. V. MCMAHON, SUPRA, WE MIGHT ADD THAT IT IS EASILY
DISTINGUISHABLE FROM THE SITUATION HERE.  NO ANSWER WAS FILED AND NO
EFFORT WAS MADE TOWARD AN AFFIRMATIVE DEFENSE, THE CLAIMANT ONLY HAVING
FORWARDED HIS STATEMENT OF ASSERTED DAMAGE BY MAIL.  NOR DO WE THINK
ALGOMA C.&H.B.R. CO. V. GREAT LAKES TRANSIT CORP., 86 F.2D 708 (1936),
AFFORDS PETITIONER COMFORT.  THERE JUDGE LEARNED HAND HELD THAT THE
RAILROAD, IN FILING A LIMITATION PROCEEDING, HAD IMPROPERLY LAID
VENUE.  WHILE THERE IS SOME DICTA IN THE OPINION INDICATING THAT THE
PETITIONER IN A LIMITATION PROCEEDING COULD RECOVER NOTHING
AFFIRMATIVELY, WE AGREE WITH JUDGE KNOX'S INTERPRETATION OF THAT CASE
IN HIS OPINION IN THE CLIO - THE SPRINGHILL, 1948 A.M.C. 75, 77.  IN
ALGOMA THE ORIGINAL LIMITATION PETITIONER HAD FILED NO COUNTERCLAIM IN
ITS PROCEEDING.  THEREFORE NOTHING COULD BE RECOVERED AFFIRMATIVELY. 
THE CASE THEREFORE DOES NOT STAND FOR THE PROPOSITION THAT IT WOULD NOT
BE PERMISSIBLE FOR A COUNTERCLAIM TO BE FILED.  THE VIEW THAT THE
COUNTERCLAIM WOULD BE PERMISSIBLE IS SUPPORTED BY THE STEEL INVENTOR,
SUPRA, AND IN RE UNITED STATES STEEL PRODUCTS CO., SUPRA, IN BOTH OF
WHICH JUDGE HAND PARTICIPATED. 

PETITIONER ALSO DEPENDS HEAVILY ON DEPARTMENT OF HIGHWAYS V. JAHNCKE
SERVICE, INC., 174 F.2D 894 (1949), AN OPINION OF THE FIFTH CIRCUIT. 
WE BELIEVE IT INAPPOSITE ALSO.  THERE JAHNCKE'S BARGES TORE LOOSE IN A
WINDSTORM AND DAMAGED THE DEPARTMENT OF HIGHWAYS' BRIDGE.  JAHNCKE
PETITIONED FOR LIMITATION AND THE DEPARTMENT, AFTER FILING ITS CLAIM
AND ANSWER, THEN ATTEMPTED TO IMPLEAD THE TOWN OF MADISONVILLE, THE
OWNER OF SOME OTHER BARGES, WHICH ALSO HAD STRUCK THE BRIDGE. 
OBVIOUSLY THERE WAS NO CONNECTION, OTHER THAN THE SAME WIND AND WATER,
BETWEEN MADISONVILLE'S BARGES WHICH WERE INDEPENDENTLY MOORED AND
JAHNCKE'S.  MADISONVILLE HAD FILED NO CLAIM IN JAHNCKE'S LIMITATION
PROCEEDING, THE DAMAGES ARISING FROM A DISTINCTLY SEPARATE INCIDENT. 

PETITIONER POINTS TO THE MANY DIRE CONSEQUENCES THAT MAY FLOW FROM
EXPOSING CLAIMANTS TO CROSS-CLAIMS.  WHILE THESE PREDICTIONS ARE
ENTIRELY SPECULATIVE AND NOT BEFORE US, WE COMMENT ON THOSE WHICH
PETITIONER BELIEVES TO BE THE MORE SERIOUS.  FIRST IT SAYS FOREIGN
CLAIMANTS WILL BE FRIGHTENED AWAY AND WILL NOT FILE CLAIMS IN AMERICAN
LIMITATION PROCEEDINGS.  THIS RESULT IS MORE, SAYS PETITIONER, "THAN
JUST ROBBING PETER TO PAY PAUL."  BUT IF PETITIONER PREVAILED BOTH
PETER AND PAUL WOULD BE ROBBED.  WHILE IT IS TRUE THAT NO COMPULSION
COULD BE EXERTED ON FOREIGN CLAIMANTS TO FILE CLAIMS AND SOME WOULD NOT
DO SO THUS PREVENTING THE DETERMINATION OF FAULT FROM BEING RES
JUDICATA AS TO THEM; AND WHILE AN INJUNCTION AGAINST SUITS BEING FILED
IN FOREIGN JURISDICTIONS WOULD BE INEFFECTIVE UNLESS COMITY REQUIRED
ITS RECOGNITION; AND ASSUMING ALL THIS WOULD ENCOURAGE THE FILING OF
FOREIGN SUITS AND THE LEVYING OF ATTACHMENTS ON ANY OFFENDING AMERICAN
VESSEL WHILE IN A FOREIGN PORT, OR FOR THAT MATTER AGAINST ANY VESSEL
OF THE SAME AMERICAN OWNER; STILL THIS WOULD HAVE LITTLE PRACTICAL
EFFECT ON THE OPERATION OF OUR LIMITATION LAW.  MOST FOREIGN CLAIMANTS
ARE FOREIGN SHIPOWNERS WHOSE VESSELS VISIT AMERICAN PORTS AND ARE
SUBJECT TO LIKE ACTION BY CLAIMANTS LIVING HERE.  SELF-PROTECTION WOULD
BALANCE THINGS OUT.  BUT EVEN IF IT DID NOT, OF WHAT GOOD IS A JUDGMENT
AS TO FAULT, EVEN IF RES JUDICATA, IF A CLAIMANT RECOVERS NOTHING?  THE
PROCEEDING HERE WOULD BECOME ENTIRELY ABORTIVE.  PETITIONER'S THEORY
MAKES THE CLAIMANTS NO MORE THAN PAWNS IN A GAME BETWEEN THE OFFENDING
SHIPOWNERS IN WHICH ALL THAT THE CLAIMANTS WIN AFTER THE SUCCESSFUL
BATTLE IS THE RIGHT TO FIGHT ANOTHER DAY FOR THEIR DUE AND IN ANOTHER
COURT.  IT APPEARS TO US, THEREFORE, THAT FAIRNESS IN LITIGATION
REQUIRES THAT THOSE WHO SEEK AFFIRMATIVE RECOVERY IN A COURT SHOULD BE
SUBJECT THEREIN TO LIKE EXPOSURE FOR THE DAMAGE RESULTING FROM THEIR
ACTS CONNECTED WITH THE IDENTICAL INCIDENT.  THE CLAIMANTS HERE ASK NO
MORE.  THAT NO FOREIGN COUNTRY PERMITS SUCH IMPLEADING SHOULD NOT FORCE
LITIGANTS IN UNITED STATES COURTS TO FOREGO SUCH PROCEDURES.  FOREIGN
LIMITATION OF LIABILITY PROCEDURES ARE FOR THE MOST PART DIFFERENT FROM
OURS WHERE NOT ONLY FAULT BUT CLAIMS ARE DETERMINED AS PART AND PARCEL
OF THE LIMITATION ACTION ITSELF.  WE CONCLUDE THAT IN THE FINAL
ANALYSIS THE MANIFEST ADVANTAGES OF THIS CROSS-CLAIM PROCEDURE SERVE
THE BEST INTERESTS OF ALL OF THE PARTIES BEFORE A COURT OF THE UNITED
STATES WHO FIND THEMSELVES THE UNFORTUNATE VICTIMS OF MARITIME
DISASTER. 

OTHER QUESTIONS OF PROCEDURAL DETAIL RAISED BY THE PETITIONER WE
LEAVE TO THE TRIAL COURTS.  THIS HAS BEEN THE POLICY OF THIS COURT IN
THE PAST IN ADMIRALTY PRACTICE.  AFFIRMED. 

FN1  THE UNITED STATES HAD NOT FILED A CROSS-CLAIM AGAINST THE DUKE
FOR DAMAGE TO ITS VESSEL BECAUSE, AS IT ALLEGES, ITS COUNSEL FELT THAT
IT HAD WAIVED RECOVERY OF ANY CLAIM AGAINST A VESSEL OF THE BRITISH
GOVERNMENT BY VIRTUE OF THE "KNOCK FOR KNOCK" AGREEMENT, 56 STAT. 1780,
E.A.S. 282, DEC. 4, 1942.  SUBSEQUENTLY, WHILE THE APPEAL WAS PENDING,
THE BRITISH GOVERNMENT ADVISED THAT IT DID NOT CONSIDER THE DUKE AS A
GOVERNMENT VESSEL.  CONSEQUENTLY, FOLLOWING THE COURT OF APPEALS
DECISION, THE UNITED STATES FILED A CROSS-CLAIM AGAINST THE DUKE IN THE
PROCEEDINGS BEFORE THE DISTRICT COURT. 

FN2  RULE 56 WAS ADOPTED AS RULE 59 IN 1883 AS A CODIFICATION OF THE
DECISION IN THE HUDSON, 15 F. 162 (1883).  THE RULE THEN PROVIDED IN
PART:

"IN A SUIT FOR DAMAGE BY COLLISION, IF THE CLAIMANT OF ANY VESSEL
PROCEEDED AGAINST, OR ANY RESPONDENT PROCEEDED AGAINST IN PERSONAM,
SHALL, BY PETITION, ON OATH, PRESENTED BEFORE OR AT THE TIME OF
ANSWERING THE LIBEL, OR WITHIN SUCH FURTHER TIME AS THE COURT MAY
ALLOW, AND CONTAINING SUITABLE ALLEGATIONS SHOWING FAULT OR NEGLIGENCE
IN ANY OTHER VESSEL CONTRIBUTING TO THE SAME COLLISION, AND THE
PARTICULARS THEREOF, AND THAT SUCH OTHER VESSEL OR ANY OTHER PARTY
OUGHT TO BE PROCEEDED AGAINST IN THE SAME SUIT FOR SUCH DAMAGE, PRAY
THAT PROCESS BE ISSUED AGAINST SUCH VESSEL OR PARTY TO THAT END, SUCH
PROCESS MAY BE ISSUED  ...  ."  112 U.S. 743. 

THE REMAINDER OF RULE 59 IN ITS ORIGINAL FORM IS SUBSTANTIALLY
SIMILAR TO THE LAST TWO SENTENCES OF THE PRESENT RULE 56. 

FN3  THE PRESENT RULE 56 PROVIDES: 

"IN ANY SUIT, WHETHER IN REM OR IN PERSONAM, THE CLAIMANT OR
RESPONDENT (AS THE CASE MAY BE) SHALL BE ENTITLED TO BRING IN ANY OTHER
VESSEL OR PERSON (INDIVIDUAL OR CORPORATION) WHO MAY BE PARTLY OR
WHOLLY LIABLE EITHER TO THE LIBELLANT OR TO SUCH CLAIMANT OR RESPONDENT
BY WAY OF REMEDY OVER, CONTRIBUTION OR OTHERWISE, GROWING OUT OF THE
SAME MATTER.  THIS SHALL BE DONE BY PETITION, ON OATH, PRESENTED BEFORE
OR AT THE TIME OF ANSWERING THE LIBEL, OR AT ANY LATER TIME DURING THE
PROGRESS OF THE CAUSE THAT THE COURT MAY ALLOW.  SUCH PETITION SHALL
CONTAIN SUITABLE ALLEGATIONS SHOWING SUCH LIABILITY, AND THE
PARTICULARS THEREOF, AND THAT SUCH OTHER VESSEL OR PERSON OUGHT TO BE
PROCEEDED AGAINST IN THE SAME SUIT FOR SUCH DAMAGE, AND SHALL PRAY THAT
PROCESS BE ISSUED AGAINST SUCH VESSEL OR PERSON TO THAT END.  THEREUPON
SUCH PROCESS SHALL ISSUE, AND IF DULY SERVED, SUCH SUIT SHALL PROCEED
AS IF SUCH VESSEL OR PERSON HAD BEEN ORIGINALLY PROCEEDED AGAINST; THE
OTHER PARTIES IN THE SUIT SHALL ANSWER THE PETITION; THE CLAIMANT OF
SUCH VESSEL OR SUCH NEW PARTY SHALL ANSWER THE LIBEL; AND SUCH FURTHER
PROCEEDINGS SHALL BE HAD AND DECREE RENDERED BY THE COURT IN THE SUIT
AS TO LAW AND JUSTICE SHALL APPERTAIN.  BUT EVERY SUCH PETITIONER
SHALL, UPON FILING HIS PETITION, GIVE A STIPULATION, WITH SUFFICIENT
SURETIES, OR AN APPROVED CORPORATE SURETY, TO PAY THE LIBELLANT AND TO
ANY CLAIMANT OR ANY NEW PARTY BROUGHT IN BY VIRTUE OF SUCH PROCESS, ALL
SUCH COSTS, DAMAGES, AND EXPENSES AS SHALL BE AWARDED AGAINST THE
PETITIONER BY THE COURT ON THE FINAL DECREE, WHETHER RENDERED IN THE
ORIGINAL OR APPELLATE COURT; AND ANY SUCH CLAIMANT OR NEW PARTY SHALL
GIVE THE SAME BONDS OR STIPULATIONS WHICH ARE REQUIRED IN THE LIKE
CASES FROM PARTIES BROUGHT IN UNDER PROCESS ISSUED ON THE PRAYER OF A
LIBELLANT."  254 U.S. 707. 

FN4  RULE 50 PROVIDES: 

"WHENEVER A CROSS-LIBEL IS FILED UPON ANY COUNTERCLAIM ARISING OUT OF
THE SAME CONTRACT OR CAUSE OF ACTION FOR WHICH THE ORIGINAL LIBEL WAS
FILED, AND THE RESPONDENT OR CLAIMANT IN THE ORIGINAL SUIT SHALL HAVE
GIVEN SECURITY TO RESPOND IN DAMAGES, THE RESPONDENT IN THE CROSS-LIBEL
SHALL GIVE SECURITY IN THE USUAL AMOUNT AND FORM TO RESPOND IN DAMAGES
TO THE CLAIMS SET FORTH IN SAID CROSS-LIBEL, UNLESS THE COURT, FOR
CAUSE SHOWN, SHALL OTHERWISE DIRECT; AND ALL PROCEEDINGS ON THE
ORIGINAL LIBEL SHALL BE STAYED UNTIL SUCH SECURITY BE GIVEN UNLESS THE
COURT OTHERWISE DIRECTS."  254 U.S. 702. 

FN5  RULE 44 PROVIDES: 

"IN SUITS IN ADMIRALTY IN ALL CASES NOT PROVIDED FOR BY THESE RULES
OR BY STATUTE, THE DISTRICT COURTS ARE TO REGULATE THEIR PRACTICE IN
SUCH A MANNER AS THEY DEEM MOST EXPEDIENT FOR THE DUE ADMINISTRATION OF
JUSTICE, PROVIDED THE SAME ARE NOT INCONSISTENT WITH THESE RULES."  254
U.S. 698. 

FN6  ALGOMA C.&H.B.R. CO. V. GREAT LAKES TRANSIT CORP., 86 F.2D 708
(1936); NEW JERSEY BARGING CORP. V. T.A.D. JONES & CO., 135 F. SUPP. 97
(D.C.S.D.N.Y. 1955); PETITION OF TEXAS CO., 81 F. SUPP. 758
(D.C.S.D.N.Y. 1948); POLING BROS. NO. 5 - TOM WOGAN, 1937 A.M.C. 1513
(D.C.E.D.N.Y.). 

OPINION OF MR. JUSTICE BRENNAN, DISSENTING, WITH WHOM MR. JUSTICE
FRANKFURTER AND MR. JUSTICE HARLAN JOIN, ANNOUNCED BY MR. JUSTICE
FRANKFURTER.    IN TERMS, ADMIRALTY RULE 56 AUTHORIZES CROSS-CLAIM
PRACTICE ONLY IN LIBEL PROCEEDINGS.  THE INSTANT PROCEEDING, HOWEVER,
IS NOT A LIBEL, BUT A LIMITATION PROCEEDING.  I DO NOT PAUSE TO EXAMINE
THE ARGUMENTS MARSHALLED BY THE COURT IN FAVOR OF CROSS-CLAIM PRACTICE
IN LIMITATION PROCEEDINGS, FOR, IN MY OPINION, IF SUCH PRACTICE IS
DESIRABLE, IT SHOULD BE INTRODUCED BY AMENDING THE ADMIRALTY RULES, AND
NOT BE A DECISION IN A PARTICULAR LITIGATION WHICH WAS COMMENCED BY THE
ORIGINAL LITIGANTS WITHOUT KNOWLEDGE ON THEIR PART OR THE ADMIRALTY BAR
THAT SUCH A PRACTICE OBTAINED IN LIMITATION PROCEEDINGS.    IT IS
INEQUITABLE, IN THE CIRCUMSTANCES OF THIS CASE, TO APPLY TO THE BRITISH
COMMISSION A PRACTICE FIRST ANNOUNCED TODAY.  THE CONTRACTS OF PASSAGE
BETWEEN THE COMMISSION AND ITS CO-CLAIMANTS WERE NOT ENTERED INTO UNDER
AMERICAN LAW.  THE DUKE OF YORK WAS A PASSENGER FERRY OPERATING ON A
FIXED SCHEDULE BETWEEN THE HOOK OF HOLLAND AND HARWICH, ENGLAND.  THE
437 PASSENGERS ABOARD AT THE TIME OF THE COLLISION HELD TICKETS FOR
TRANSPORTATION ACROSS THE NORTH SEA FROM A RAILROAD STATION IN HOLLAND
TO A RAILROAD STATION IN HARWICH.  THOSE TICKETS WERE CONTRACTS OF
PASSAGE CONTAINING PROVISIONS FOR EXONERATION FROM LIABILITY MORE
FAVORABLE THAN ARE ALLOWED BY AMERICAN LAW.  THERE IS NO CHALLENGE TO
THE STATEMENT IN A FOOTNOTE TO THE COMMISSION'S BRIEF THAT: 

"UNDER ENGLISH LAW THE AMOUNT AT WHICH LIABILITY MAY BE LIMITED IS
FAR LOWER THAN IN THE  UNITED STATES, GENERALLY L.15 PER TON OF
TONNAGE.  MERCHANT SHIPPING ACT 1894 (57 & 58 VICT.  C. 60) SEC. 503. 
FURTHERMORE, THE ENGLISH RULES OF LIABILITY ARE SUBSTANTIALLY DIFFERENT
FROM THOSE APPLIED IN OUR COURTS.  A CARRIER UNDER ENGLISH LAW MAY BY
APPROPRIATE CONTRACT AND NOTICE LIMIT ITS LIABILITY FOR NEGLIGENCE, AND
PERIODS OF LIMITATION FOR THE ASSERTION OF DAMAGE OR LOSS ARE
DIFFERENT.  SEE COLLISION CLAIMS - DIFFERENCE BETWEEN BRITISH AND U.S.
LAW, LLOYDS LIST AND SHIPPING GAZETTE, JULY 14, 1953." 

AND SEE ADLER V. DICKSON, (1954) 2 LLOYD'S LIST L.R. 267 (C.A.). 
THERE IS AT LEAST A SUBSTANTIAL PROSPECT THAT IN THE AMERICAN COURTS
THESE MORE FAVORABLE ENGLISH RULES OF LIABILITY MAY NOT BE FULLY
RECOGNIZED AND APPLIED.  CONGRESS HAS SAID THAT PROVISIONS OR
LIMITATIONS EXONERATING A SHIPOWNER FROM LIABILITY FOR NEGLIGENCE OR
FROM LIABILITY BEYOND A STIPULATED AMOUNT ARE AGAINST THE PUBLIC POLICY
OF THE UNITED STATES, AND SHALL BE NULL AND VOID AND OF NO EFFECT. 
SEE, E.G., R.S. SEC. 4283, AS AMENDED, 49 STAT.  1480, 46 U.S.C. SEC.
183(C); NOTE, 65 YALE L.J. 553; MOORE V. AMERICAN SCANTIC LINE, 30 F.
SUPP. 843. 

THE BRITISH COMMISSION COULD NOT HAVE BEEN COMPELLED TO ENTER THE
LIMITATION PROCEEDING BUT DID SO VOLUNTARILY.  WE MAY REASONABLY INFER
THAT ITS DECISION TO PARTICIPATE WAS BASED UPON ITS UNDERSTANDING OF
THE ISSUES IT WOULD BE CALLED UPON TO FACE.  THE NOTICE OF THOSE ISSUES
GAVE NOT THE SLIGHTEST HINT THAT THE COMMISSION WOULD BE REQUIRED TO
ANSWER TO OTHER CLAIMANTS WHO MIGHT ENTER THE PROCEEDINGS.  THE NOTICE
WAS: 

"NOTICE IS GIVEN THAT THE UNITED STATES OF AMERICA HAS FILED A
PETITION PURSUANT TO TITLE 46, U.S. CODE, SECTIONS 183-189 AND 789,
CLAIMING THE RIGHT TO EXONERATION FROM OR LIMITATION OF LIABILITY FOR
ALL CLAIMS ARISING ON THE VOYAGE OF THE USNS HAITI VICTORY FROM NEW
YORK CITY TO BREMERHAVEN, GERMANY, TERMINATING ON MAY 8, 1953, AT
BREMERHAVEN.  ALL PERSONS HAVING SUCH CLAIMS MUST FILE THEM, UNDER
OATH, AS PROVIDED IN UNITED STATES SUPREME COURT ADMIRALTY RULE 52,
WITH THE CLERK OF THIS COURT, AT THE UNITED STATES COURT HOUSE AT
GRANBY STREET, POST OFFICE BUILDING, NORFOLK, VIRGINIA, AND SERVE ON OR
MAIL TO THE PETITIONER'S PROCTORS  ...  AT  ...  A COPY ON OR BEFORE
OCTOBER 15, 1953, OR BE DEFAULTED.  PERSONAL ATTENDANCE IS NOT
REQUIRED.  ANY CLAIMANT DESIRING TO CONTEST THE CLAIMS OF PETITIONER
MUST FILE AN ANSWER TO SAID PETITION, AS REQUIRED BY SUPREME COURT
ADMIRALTY RULE 53, AND SERVE ON OR MAIL TO PETITIONER'S PROCTORS A
COPY." 

PLAINLY THIS NOTICE TOLD THE COMMISSION ONLY THAT IF IT CHOSE TO
ENTER THIS PROCEEDING IT MUST BE PREPARED TO CONTEST THE CLAIMS OF THE
UNITED STATES TO EXONERATION FROM OR LIMITATION OF LIABILITY FOR CLAIMS
ARISING OUT OF THE COLLISION.  THAT ISSUE DID NOT IN ANYWISE DRAW IN
THE COMMISSION'S DEFENSES AGAINST CLAIMS OF THE DUKE OF YORK'S
PASSENGERS.  THE COMMISSION THEREFORE HAD NO INFORMATION TO ALERT IT
THAT IT MIGHT HAZARD ITS DEFENSES UNDER ITS CONTRACTS OF PASSAGE IF IT
ENTERED THE PROCEEDING.  THE COMMISSION THUS HAD NO FAIR OPPORTUNITY TO
WEIGH THAT FACTOR IN REACHING THE VERY PRACTICAL DECISION WHETHER TO
ENTER THE AMERICAN PROCEEDING OR TO STAY OUT AND MEET ALL CLAIMANTS ON
ITS HOME GROUNDS.  IT IS A FUNDAMENTAL OF AMERICAN JUSTICE THAT A
LITIGANT SHALL HAVE FAIR NOTICE OF WHAT HE WILL BE CALLED UPON TO
MEET.  IN HOLDING THAT, ALTHOUGH THE COMMISSION WAS NOT GIVEN SUCH
NOTICE, IT MUST LITIGATE THE CROSS-CLAIMS HERE, THE COURT IN MY VIEW,
DENIES EQUITY IN THE NAME OF EQUITY. 

I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND DIRECT
AFFIRMANCE OF THE DECREE OF THE DISTRICT COURT. 
..END :



LAKE TANKERS CORP. V. HENN 354 U.S. 147 


NO. 445.  ARGUED MAY 6, 1957.  - DECIDED JUNE 10, 1957.  - 232 F.2D 573,
235 F.2D 783, AFFIRMED. 


PETITIONER BROUGHT THIS PROCEEDING IN A FEDERAL DISTRICT COURT UNDER
THE LIMITED LIABILITY ACT, 46 U.S.C. SECS. 181-196, TO LIMIT ITS
LIABILITY FOR CLAIMS GROWING OUT OF A COLLISION BETWEEN PETITIONER'S
TUG AND BARGE AND A PLEASURE YACHT.  SUITS PREVIOUSLY BROUGHT IN STATE
COURTS, BY RESPONDENT FOR THE DEATH OF HER HUSBAND, AND BY FOUR OTHER
CLAIMANTS FOR PERSONAL INJURIES AND THE LOSS OF THE YACHT, ORIGINALLY
INVOLVED CLAIMS FOR DAMAGES AGGREGATING MORE THAN THE VALUE OF
PETITIONER'S VESSELS AND THEIR PENDING FREIGHT; BUT THE AGGREGATE
AMOUNT RECOVERABLE ON SUCH CLAIMS WAS REDUCED BY STIPULATIONS AND
ADMIRALTY COURT ORDERS TO AN AMOUNT LESS THAN THE VALUE OF THE VESSELS
AND THEIR PENDING FREIGHT.  THE VALUE OF THE VESSELS WAS UNDISPUTED;
THE CLAIMS WERE FIXED; THERE WAS NO CONTENTION THAT THERE MIGHT BE
FURTHER CLAIMS; THE FUND INDUBITABLY WAS SUFFICIENT TO PAY ALL CLAIMS
IN FULL; AND THE ADMIRALTY COURT HAD DISSOLVED ITS INJUNCTION AGAINST
RESPONDENT'S SUIT IN THE STATE COURT.  HELD:  IN THIS SITUATION, A
CONCURSUS BEYOND THAT REQUIRED BY THE ORDERS HERETOFORE ENTERED IN THE
LIMITATION PROCEEDING IS NOT NECESSARY, AND RESPONDENT MAY PROCEED WITH
HER SUIT IN THE STATE COURT TO DETERMINE PETITIONER'S OBLIGATION TO
RESPOND IN DAMAGES FOR THE LOSS OF HER HUSBAND'S LIFE - SUBJECT TO THE
CONTINUING JURISDICTION OF THE FEDERAL COURT TO PROTECT PETITIONER'S
RIGHT TO LIMITED LIABILITY.  PP. 148-154. 

(A)  WHERE THE FUND PAID INTO THE PROCEEDINGS BY THE OFFENDING OWNER
EXCEEDS THE CLAIMS MADE AGAINST IT, THERE IS NO NECESSITY FOR THE
MAINTENANCE OF THE CONCOURSE.  P. 152. 

(B)  THE ACT IS NOT ONE OF IMMUNITY FROM LIABILITY, AND IT CONFERS NO
PRIVILEGE ON THE SHIPOWNER OTHER THAN THAT GRANTING HIM LIMITED
LIABILITY.  PP. 152-153. 

(C)  IN VIEW OF THE RESERVATION TO SUCH SUITORS OF THEIR COMMON-LAW
REMEDIES BY 28 U.S.C.  SEC. 1333, RESPONDENT MUST NOT BE THWARTED IN
HER ATTEMPT TO EMPLOY HER COMMON-LAW REMEDY IN THE STATE COURT, WHERE
SHE MAY OBTAIN TRIAL BY JURY.  P. 153. 

(D)  MARYLAND CASUALTY CO. V. CUSHING, 347 U.S. 409, DISTINGUISHED. 
PP. 153-154. 

LAKE TANKERS CORP. V. HENN, ADMINISTRATRIX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS ADMIRALTY LIMITATION PROCEEDING RESULTED FROM A MARITIME
DISASTER IN 1954.  THE AGGREGATE AMOUNT OF ALL OF THE CLAIMS FILED IN
THE PROCEEDING AND FOR WHICH THE PETITIONER COULD BE HELD LIABLE IF
FOUND AT FAULT IS LESS THAN THE VALUE OF PETITIONER'S VESSELS AND THEIR
PENDING FREIGHT.  THE QUESTION PRESENTED IS WHETHER THE RESPONDENT, THE
PRINCIPAL CLAIMANT, MAY, UNDER THESE CIRCUMSTANCES, PROCEED WITH HER
ACTION IN A STATE COURT, SUBJECT TO THE CONTINUING JURISDICTION OF THE
FEDERAL COURT TO PROTECT PETITIONER'S RIGHT TO LIMITED LIABILITY, TO
DETERMINE THE OBLIGATION OF THE PETITIONER TO RESPOND IN DAMAGES FOR
THE LOSS OF THE LIFE OF HER HUSBAND.  WE AGREE WITH THE DISPOSITION OF
THE DISTRICT COURT AS MODIFIED BY THE COURT OF APPEALS. 

RESPONDENT'S HUSBAND WAS A PASSENGER ON THE PLEASURE YACHT,
BLACKSTONE, WHICH WAS INVOLVED IN A COLLISION ON THE HUDSON RIVER ON
JULY 10, 1954, WITH PETITIONER'S TUG, EASTERN CITIES, PUSH-TOWING
PETITIONER'S BARGE, L.T.C. NO. 38.  THE BLACKSTONE CAPSIZED AND
RESPONDENT'S HUSBAND WAS DROWNED.  THE OTHER 10 PERSONS ON BOARD THE
YACHT WERE RESCUED.  RESPONDENT, AS HER HUSBAND'S ADMINISTRATRIX,
BROUGHT SUIT AGAINST THE PETITIONER IN A NEW YORK STATE COURT CLAIMING
$500,000 DAMAGES FOR THE LOSS OF HER HUSBAND'S LIFE.  SHE ALLEGED THAT
THE LOSS WAS CAUSED BY LAKE TANKERS' NEGLIGENT OPERATION OF BOTH ITS
TUG AND ITS BARGE.  ACTIONS BY FOUR OTHER CLAIMANTS WERE ALSO COMMENCED
IN THE NEW YORK STATE COURTS AGAINST THE PETITIONER FOR DAMAGES FOR
PERSONAL INJURIES AND FOR LOSS OF THE BLACKSTONE. 

THEREAFTER, LAKE TANKERS CORPORATION FILED THIS PROCEEDING IN
ADMIRALTY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK FOR EXONERATION FROM OR LIMITATION OF LIABILITY.  AS
REQUIRED BY THE STATUTE AUTHORIZING LIMITATION PROCEEDINGS (FN1) THE
PETITIONER FILED APPROVED SECURITY.  WHILE THE FIRST BOND WAS ONLY IN
THE AMOUNT OF $118,542.21, REPRESENTING THE PETITIONER'S INTEREST IN
ITS TUG ALONE, THEREAFTER A BOND COVERING THE BARGE IN THE AMOUNT OF
$165,000 WAS FILED.  APPROPRIATE RESTRAINING ORDERS WERE ISSUED
ENJOINING THE PROSECUTION OR FILING OF ANY CLAIMS AGAINST LAKE TANKERS
EXCEPT IN THE LIMITATION PROCEEDING.  THERE IS NO DISPUTE IN REGARD TO
THE ADEQUACY OR CORRECTNESS OF THE AMOUNT OF THE TWO BONDS. 

AFTER PETITIONER INSTITUTED THE LIMITATION PROCEEDING THE RESPONDENT
FILED A CLAIM FOR $250,000 IN IT COVERING THE SAME LOSS ASSERTED IN HER
STATE COURT CASE.  THE 10 SURVIVORS, INCLUDING THOSE WHO HAD FILED
SUITS IN THE STATE COURT, ALSO FILED THEIR CLAIMS IN THE LIMITATION
PROCEEDING.  THESE TOTALED ONLY $9,525.  ALL OF THE CLAIMANTS,
INCLUDING RESPONDENT, HAVE RELINQUISHED ALL RIGHT TO ANY DAMAGE IN
EXCESS OF THE AMOUNTS SET FORTH IN THEIR RESPECTIVE CLAIMS IN THE
LIMITATION PROCEEDING AND EXPRESSLY LIMITED THEIR RECOVERY TO THOSE
AMOUNTS.  THE RESPONDENT HAS AMENDED HER CLAIM FURTHER BY ALLOCATING
$100,000 OF HER ALLEGED DAMAGE TO THE TUG AND THE REMAINING $150,000 TO
THE BARGE.  SHE HAS ALSO FILED STIPULATIONS AGREEING NEITHER TO
INCREASE THESE CLAIMS, NOR TO ENTER INTO A JUDGMENT IN EXCESS OF THESE
AMOUNTS, AND SHE HAS WAIVED ANY CLAIM OF RES JUDICATA RELATIVE TO THE
ISSUE OF THE PETITIONER'S RIGHT TO LIMIT LIABILITY TO THE ISSUE OF THE
PETITIONER'S RIGHT TO LIMIT LIABILITY IF THAT ISSUE SHOULD BE PASSED ON
IN THE STATE COURT PROCEEDING.  THE DISTRICT COURT ON APPLICATION THEN
VACATED THE RESTRAINING ORDER SINCE THE TOTAL FUND EXCEEDED THE AMOUNT
OF THE CLAIMS.  137 F. SUPP.  311.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT AFFIRMED, ENTERING AN ORDER, TO WHICH RESPONDENT HAS ALSO
AGREED, WITH RESPECT TO THE STATE COURT SUIT, AS FOLLOWS: 

"'IF CLAIMANT OBTAINS A JUDGMENT IN HER STATE COURT SUIT FOR AN
AMOUNT IN EXCESS OF $100,000, AN INJUNCTION WILL ISSUE PERMANENTLY
ENJOINING HER FROM COLLECTING SUCH EXCESS UNLESS THE JUDGMENT RESTS ON
A SPECIAL VERDICT ALLOCATING THE AMOUNT AS BETWEEN THE LIBELANT AS
OWNER OF THE TUG AND AS OWNER OF THE BARGE RESPECTIVELY.  THUS IF THE
JUDGMENT EXCEEDS $100,000 AND THE JURY FINDS LIBELANT LIABLE SOLELY AS
OWNER OF THE TUG, SHE WILL BE ENJOINED FROM COLLECTING ANY EXCESS.  IF
THE JURY FINDS THAT THE LIBELANT IS LIABLE SOLELY AS OWNER OF THE
BARGE, SHE WILL BE ENJOINED FROM COLLECTING ANY AMOUNT IN EXCESS OF
$150,000.'"  232 F.2D 573, 577. 

ON REHEARING THE SECOND CIRCUIT, SITTING EN BANC, REAFFIRMED ITS
DECISION.  235 F.2D 783.  WE GRANTED CERTIORARI TO PASS UPON THE
IMPORTANT JURISDICTIONAL QUESTION PRESENTED.  352 U.S. 914. 

THIS COURT HAS RECENTLY CONSIDERED THE CASES WHICH DISCUSS THE
HISTORICAL BACKGROUND OF THE LIMITED LIABILITY ACT, R.S. SECS. 4281
4289, AS AMENDED, 46 U.S.C. SECS. 181-196, IN BRITISH TRANSPORT
COMMISSION V. UNITED STATES, ANTE, P. 129.  IT WAS THERE POINTED OUT
THAT THE ACT WAS ADOPTED PRIMARILY TO ENCOURAGE THE DEVELOPMENT OF
AMERICAN MERCHANT SHIPPING.  THE FIRST SECTION OF THE ACT HERE INVOLVED
CONTAINS ITS FUNDAMENTAL PROVISION WHICH DECLARES THAT THE LIABILITY
FOR ANY DAMAGE ARISING FROM A DISASTER AT SEA WHICH IS OCCASIONED
WITHOUT THE PRIVITY OR KNOWLEDGE OF THE SHIPOWNER SHALL IN NO CASE
EXCEED THE VALUE OF THE VESSEL AT FAULT TOGETHER WITH HER PENDING
FREIGHT, 46 U.S.C. SEC. 183.  AS MR. JUSTICE VAN DEVANTER STATED FOR A
UNANIMOUS COURT IN WHITE V. ISLAND TRANSPORTATION CO., 233 U.S. 346,
351 (1914), "THE SUCCEEDING SECTIONS ARE IN THE NATURE OF AN APPENDIX
AND RELATE TO THE PROCEEDINGS BY WHICH THE FIRST IS TO BE MADE
EFFECTIVE.  THEREFORE, THEY SHOULD BE SO CONSTRUED AS TO BRING THEM
INTO CORRESPONDENCE WITH IT."  AMONG THESE SECTIONS DEALING WITH THE
MECHANICS OF EFFECTING SUCH LIMITATION OF LIABILITY IS SEC.  184
COVERING THOSE INCIDENTS WHERE "THE WHOLE VALUE OF THE VESSEL, AND HER
FREIGHT FOR THE VOYAGE, IS NOT SUFFICIENT TO MAKE COMPENSATION TO EACH
OF THE CLAIMANTS."  IN THAT EVENT, THE SECTION CONTINUES, "THEY SHALL
RECEIVE COMPENSATION FROM THE OWNER OF THE VESSEL IN PROPORTION TO
THEIR RESPECTIVE LOSSES; AND FOR THAT PURPOSE" THE OWNERS "MAY TAKE THE
APPROPRIATE PROCEEDINGS IN ANY COURT  ... ."  THE SUCCEEDING SECTION
PROVIDES THAT IN SUCH AN EVENT THE OWNER "MAY PETITION A DISTRICT COURT
OF THE UNITED STATES  ... FOR LIMITATION OF LIABILITY WITHIN THE
PROVISIONS OF THIS CHAPTER  ...  ."  IT FURTHER DECLARES THAT UPON
COMPLIANCE WITH ITS REQUIREMENTS "ALL CLAIMS AND PROCEEDINGS AGAINST
THE OWNER WITH RESPECT TO THE MATTER IN QUESTION SHALL CEASE."  THIS
PROVISION IS IMPLEMENTED BY RULE 51 OF OUR ADMIRALTY RULES WHICH SPELLS
OUT IN MORE DETAIL THE MANNER IN WHICH THE OWNER OF ANY VESSEL WHO
"SHALL DESIRE TO CLAIM THE BENEFIT OF LIMITATION OF LIABILITY  ...  "
SHALL PROCEED.  IT IS, THEREFORE, CRYSTAL CLEAR THAT THE OPERATION OF
THE ACT IS DIRECTED AT MISFORTUNES AT SEA WHERE THE LOSSES INCURRED
EXCEED THE VALUE OF THE VESSEL AND THE PENDING FREIGHT.  AND, AS IS
POINTED OUT IN BRITISH TRANSPORT COMMISSION, SUPRA, WHERE THE FUND
CREATED PURSUANT TO THE ACT IS INADEQUATE TO COVER ALL DAMAGES AND THE
OWNER HAS SOUGHT THE PROTECTION OF THE ACT THE ISSUES ARISING FROM THE
DISASTER COULD BE LITIGATED WITHIN THE LIMITATION PROCEEDING. 
OTHERWISE THE PURPOSE OF THE ACT, I.E., LIMITATION OF THE OWNER'S
LIABILITY, MIGHT BE FRUSTRATED.  ONLY IN THIS MANNER MAY THERE BE A
MARSHALLING OF ALL OF THE STATUTORY ASSETS REMAINING AFTER THE DISASTER
AND A CONCOURSE OF CLAIMANTS.  IN SUCH A SITUATION IT MATTERS NOT TO
THE OWNER WHAT THE "TAKE" OF THE INDIVIDUAL CLAIMANT MAY BE FROM THE
PROCEEDING FOR UNDER THE ACT HIS PAYMENT IS LIMITED TO THE VALUE OF THE
VESSEL AND THE PENDING FREIGHT.  HE CAN SUFFER NO MORE IN ANY EVENT. 

ON THE OTHER HAND, WHERE THE VALUE OF THE VESSEL AND THE PENDING
FREIGHT, THE FUND PAID INTO THE PROCEEDING BY THE OFFENDING OWNER,
EXCEEDS THE CLAIMS MADE AGAINST IT, THERE IS NO NECESSITY FOR THE
MAINTENANCE OF THE CONCOURSE.  THIS IS NOT TO SAY THAT CONCURSUS IS NOT
AVAILABLE WHERE A VESSEL OWNER IN GOOD FAITH BELIEVES THE FUND
INADEQUATE, BUT HERE THERE IS NO CONTENTION THAT THERE MIGHT BE FURTHER
CLAIMS; THE VALUE OF THE VESSELS IS UNDISPUTED AND THE CLAIMS ARE
FIXED; IT FOLLOWS INDUBITABLY THAT THE FUND IS SUFFICIENT TO PAY ALL
CLAIMS IN FULL.  WHILE IT IS TRUE THAT THE CLAIMS AS INITIALLY FILED IN
THE STATE COURT EXCEEDED THE FUND CREATED IN THE LIMITATION PROCEEDING,
STILL WHEN THE ADMIRALTY COURT DISSOLVED THE INJUNCTION AGAINST THE
STATE SUIT THESE CLAIMS, AS FILED IN AND LIMITED BY STIPULATION AND
ORDER OF THE ADMIRALTY COURT IN THE LIMITATION PROCEEDING, AGGREGATED
LESS THAN THE FUND.  ON APPEAL THE COURT OF APPEALS PLACED EVEN MORE
SEVERE RESTRICTIONS ON THE STATE COURT PROSECUTION, THUS INSURING
BEYOND DOUBT THAT PETITIONER'S RIGHT OF LIMITATION UNDER THE ACT WAS
FULLY PROTECTED. 

FOR US TO EXPAND THE JURISDICTIONAL PROVISIONS OF THE ACT TO PREVENT
RESPONDENT FROM NOW PROCEEDING IN HER STATE CASE WOULD TRANSFORM THE
ACT FROM A PROTECTIVE INSTRUMENT TO AN OFFENSIVE WEAPON BY WHICH THE
SHIPOWNER COULD DEPRIVE SUITORS OF THEIR COMMON-LAW RIGHTS, EVEN WHERE
THE LIMITATION FUND IS KNOWN TO BE MORE THAN ADEQUATE TO SATISFY ALL
DEMANDS UPON IT.  THE SHIPOWNER'S RIGHT TO LIMIT LIABILITY IS NOT SO
BOUNDLESS.  THE ACT IS NOT ONE OF IMMUNITY FROM LIABILITY BUT OF
LIMITATION OF IT AND WE READ NO OTHER PRIVILEGE FOR THE SHIPOWNER INTO
ITS LANGUAGE OVER AND ABOVE THAT GRANTING HIM LIMITED LIABILITY.  IN
FACT, THE CONGRESS NOT ONLY CREATED THE LIMITATION PROCEDURE FOR THE
PRIMARY PURPOSE OF APPORTIONING THE LIMITATION FUND AMONG THE CLAIMANTS
WHERE THAT FUND WAS INADEQUATE TO PAY THE CLAIMS IN FULL, BUT IT
RESERVED TO SUCH SUITORS THEIR COMMON-LAW REMEDIES.  63 STAT. 101, 28
U.S.C. SEC. 1333.  (FN2)  IN VIEW OF THIS EXPLICIT MANDATE FROM THE
CONGRESS THE RESPONDENT MUST NOT BE THWARTED IN HER ATTEMPT TO EMPLOY
HER COMMON-LAW REMEDY IN THE STATE COURT WHERE SHE MAY OBTAIN TRIAL BY
JURY. 

THE STATE PROCEEDING COULD HAVE NO POSSIBLE EFFECT ON THE
PETITIONER'S CLAIM FOR LIMITED LIABILITY IN THE ADMIRALTY COURT AND THE
PROVISIONS OF THE ACT, THEREFORE, DO NOT CONTROL.  LANGNES V. GREEN,
282 U.S. 531, 539-540 (1931).  IT FOLLOWS THAT THERE CAN BE NO REASON
WHY A SHIPOWNER, UNDER SUCH CONDITIONS, SHOULD BE TREATED ANY MORE
FAVORABLY THAN AN AIRLINE, BUS, OR RAILROAD COMPANY.  NONE OF THEM CAN
FORCE A DAMAGE CLAIMANT TO TRIAL WITHOUT A JURY.  THEY, TOO, MUST
SUFFER A MULTIPLICITY OF SUITS.  LIKEWISE, THE SHIPOWNER, SO LONG AS
HIS CLAIM OF LIMITED LIABILITY IS NOT JEOPARDIZED, IS SUBJECT TO ALL
COMMON-LAW REMEDIES AVAILABLE AGAINST OTHER PARTIES IN DAMAGE ACTIONS. 
THE ACT, AS WE HAVE SAID, WAS NOT ADOPTED TO INSULATE SHIPOWNERS FROM
LIABILITY BUT MERELY TO LIMIT IT TO THE VALUE OF THE VESSEL AND THE
PENDING FREIGHT.  IT IS CONTENDED THAT MARYLAND CASUALTY CO. V.
CUSHING, 347 U.S. 409 (1954), IS TO THE CONTRARY.  WHILE THERE WAS NO
OPINION OF THE COURT IN THAT CASE, IT INVOLVED AN ALLEGED CLASH BETWEEN
LOUISIANA'S DIRECT ACTION STATUTE AND THE ACT.  THE MAJORITY CONCLUDED
THERE WAS NO CLASH.  THE AMOUNT OF THE CLAIMS THERE FAR EXCEEDED THE
VALUE, IF ANY, OF THE VESSEL AND THE PENDING FREIGHT.  THE LANGUAGE IN
ONE OPINION TO THE EFFECT THAT CONCURSUS IS "THE HEART" OF THE
LIMITATION SYSTEM THEREFORE REFERS TO THOSE CASES WHERE THE CLAIMS
EXCEED THE VALUE OF THE VESSEL AND THE PENDING FREIGHT.  IN THAT EVENT,
AS WE HAVE POINTED OUT, THE CONCURSUS IS VITAL TO THE PROTECTION OF THE
OFFENDING OWNER'S STATUTORY RIGHT OF LIMITATION.  BUT THIS IS NOT TO
SAY THAT WHERE CONCURSUS IS NOT NECESSARY TO THE PROTECTION OF THIS
STATUTORY RIGHT IT IS NONETHELESS REQUIRED. 

WE CONCLUDE THAT IN THE SITUATION HERE A CONCURSUS BEYOND THAT
REQUIRED BY THE ORDERS HERETOFORE ENTERED IN THIS CASE IS NOT NECESSARY
AND RESPONDENT MAY THEREFORE PROCEED WITH HER STATE COURT SUIT. 
AFFIRMED. 

FN1  R.S. SEC. 4285, AS AMENDED, 46 U.S.C. SEC. 185. 

FN2  THE FORERUNNER OF THE CURRENT SECTION GAVE THE DISTRICT COURTS
JURISDICTION "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  ...  ."  42 STAT.
634, 28 U.S.C. (1946 ED.)  SEC.  41(3).  AS RE-ENACTED IT READS, IN
PERTINENT PART, THAT THE DISTRICT COURTS HAVE ORIGINAL JURISDICTION,
EXCLUSIVE OF THE COURTS IN THE STATES IN "ANY CIVIL CASE OF ADMIRALTY
OR MARITIME JURISDICTION, SAVING TO SUITORS IN ALL CASES ALL OTHER
REMEDIES TO WHICH THEY ARE OTHERWISE ENTITLED."  63 STAT. 101, 28
U.S.C. SEC. 1333. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

I AGREE WITH THE RESULT REACHED BY JUDGE HINCKS IN HIS DISSENTING
OPINION BELOW, 232 F.2D 573, 579, AND THINK THAT THIS JUDGMENT SHOULD
BE REVERSED.  SINCE FEDERAL LIMITATION JURISDICTION WAS PROPERLY
INVOKED, WE SHOULD NOT PERMIT IT TO BE ABORTED BY SUBSEQUENT ACTIONS BY
THE CLAIMANTS WITH A VIEW TO OBTAINING TRANSFER OF THE TRIAL OF THEIR
CLAIMS TO THE STATE COURTS.  AT THE TIME THE LIMITATION PROCEEDING WAS
COMMENCED THE TOTAL CLAIMS WHICH HAD BEEN ASSERTED IN THE SEVERAL STATE
COURT ACTIONS FAR EXCEEDED THE VALUE OF BOTH THE VESSELS OWNED BY THE
PETITIONER, AND LIMITATION PROCEEDINGS WERE REQUIRED.  THE STEPS
SUBSEQUENTLY TAKEN BY THE CLAIMANTS TO LIMIT THEIR MAXIMUM RECOVERY
AGAINST THE PETITIONER SHOULD NO MORE BE ALLOWED TO DEFEAT OR IMPAIR
THE FULL EFFECTIVENESS OF THE LIMITATION PROCEEDING THAN WOULD A
SUBSEQUENT REDUCTION IN THE AMOUNT INVOLVED BE PERMITTED TO DEFEAT A
DIVERSITY JURISDICTION WHICH HAD INITIALLY BEEN PROPERLY INVOKED.  SEE
ST. PAUL MERCURY INDEMNITY CO. V. RED CAB CO., 303 U.S. 283. 
..END :























CHESSMAN V. TEETS 354 U.S. 156 


NO. 893.  ARGUED MAY 13, 1957.  - DECIDED JUNE 10, 1957.  - 239 F.2D
205, JUDGMENT VACATED AND CAUSE REMANDED. 


IN A STATE COURT, PETITIONER WAS CONVICTED OF A CAPITAL OFFENSE.  THE
OFFICIAL COURT REPORTER OF THE TRIAL PROCEEDINGS DIED BEFORE HIS NOTES
WERE TRANSCRIBED, AND THEY WERE TRANSCRIBED BY A SUBSTITUTE REPORTER,
WHO WORKED IN CLOSE COLLABORATION WITH THE PROSECUTOR.  THOUGH A COPY
OF THE TRANSCRIPT WAS FURNISHED TO PETITIONER AND MANY, BUT NOT ALL,
CORRECTIONS WHICH HE REQUESTED WERE MADE, HE WAS NOT REPRESENTED IN
PERSON OR BY COUNSEL WHEN THE TRIAL RECORD WAS SETTLED, AND IT WAS USED
OVER HIS OBJECTION ON HIS APPEAL, AT WHICH HIS CONVICTION WAS
AFFIRMED.  IN A HABEAS CORPUS PROCEEDING, A FEDERAL DISTRICT COURT
FOUND THAT THERE WAS NO FRAUD IN THE PREPARATION OF THE RECORD, AND IT
DISMISSED THE WRIT.  HELD:  IN THE CIRCUMSTANCES OF THIS CASE, THE EX
PARTE SETTLEMENT OF THE RECORD VIOLATED PETITIONER'S RIGHT TO
PROCEDURAL DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.  PP. 157-166. 

(A)  PETITIONER WAS ENTITLED TO BE REPRESENTED EITHER IN PERSON OR BY
COUNSEL THROUGHOUT THE PROCEEDINGS FOR THE SETTLEMENT OF THE TRIAL
RECORD.  P. 162. 

(B)  PETITIONER'S REFUSAL TO BE REPRESENTED BY COUNSEL AT THE TRIAL
DID NOT CONSTITUTE A WAIVER OF HIS RIGHT TO COUNSEL AT THE SETTLEMENT
PROCEEDINGS.  P. 162. 

(C)  THE HEARINGS BEFORE A FEDERAL JUDGE IN THE HABEAS CORPUS
PROCEEDINGS, AT WHICH PETITIONER WAS PERSONALLY PRESENT AND REPRESENTED
BY COUNSEL, DID NOT CURE THE LACK OF PROCEDURAL DUE PROCESS IN THE
STATE PROCEEDINGS.  P. 163. 

(D)  CONSISTENTLY WITH PROCEDURAL DUE PROCESS, THE STATE SUPREME
COURT'S AFFIRMANCE OF PETITIONER'S CONVICTION UPON A SERIOUSLY DISPUTED
RECORD, WHOSE ACCURACY PETITIONER HAD NO VOICE IN DETERMINING, CANNOT
BE ALLOWED TO STAND.  PP. 164-165. 

(E)  A VALID APPEAL TO THE CONSTITUTION, EVEN BY A GUILTY MAN, DOES
NOT COME TOO LATE BECAUSE COURTS WERE NOT EARLIER ABLE TO ENFORCE WHAT
THE CONSTITUTION DEMANDS.  P. 165. 

(F)  THE JUDGMENTS OF THE FEDERAL DISTRICT COURT AND COURT OF APPEALS
ARE VACATED, AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR ENTRY
OF SUCH ORDERS AS MAY BE APPROPRIATE ALLOWING THE STATE A REASONABLE
TIME WITHIN WHICH TO TAKE FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS COURT'S OPINION, FAILING WHICH PETITIONER SHALL BE DISCHARGED.  P.
166. 

CHESSMAN V. TEETS, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

OUR WRIT OF CERTIORARI IN THIS CASE WAS LIMITED TO THE FOLLOWING
QUESTION: 

"WHETHER IN THE CIRCUMSTANCES OF THIS CASE, THE STATE COURT
PROCEEDINGS TO SETTLE THE TRIAL TRANSCRIPT, UPON WHICH PETITIONER'S
AUTOMATIC APPEAL FROM HIS CONVICTION WAS NECESSARILY HEARD BY THE
SUPREME COURT OF THE STATE OF CALIFORNIA, IN WHICH TRIAL COURT
PROCEEDINGS PETITIONER ALLEGEDLY WAS NOT REPRESENTED IN PERSON OR BY
COUNSEL DESIGNATED BY THE STATE COURT IN HIS BEHALF, RESULTED IN
DENYING PETITIONER DUE PROCESS OF LAW, WITHIN THE MEANING OF THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES."  353
U.S. 928. 

WE BELIEVE THAT A MERE STATEMENT OF THE FACTS IN THIS LONG-DRAWN-OUT
CRIMINAL LITIGATION, MATERIAL TO THE ISSUE NOW BEFORE US, WILL SUFFICE
TO SHOW WHY WE HAVE REACHED THE CONCLUSION THAT THE JUDGMENT OF THE
COURT OF APPEALS, AFFIRMING BY A DIVIDED COURT (FN1) DISCHARGE OF THE
WRIT OF HABEAS CORPUS HEREIN, MUST BE VACATED, AND THE CASE REMANDED
FOR FURTHER PROCEEDINGS. 

IN MAY 1948, PETITIONER, FOLLOWING A TRIAL BY JURY IN THE SUPERIOR
COURT OF LOS ANGELES COUNTY, WAS CONVICTED OF A SERIES OF FELONIES
UNDER A MULTI-COUNT INDICTMENT, AND WAS SENTENCED TO DEATH UPON TWO
COUNTS CHARGING HIM WITH KIDNAPING FOR THE PURPOSE OF ROBBERY, WITH
INFLICTION OF BODILY HARM, IN VIOLATION OF SEC. 109 OF THE CALIFORNIA
PENAL CODE.  IN CAPITAL CASES CALIFORNIA PROVIDES THAT "AN APPEAL IS
AUTOMATICALLY TAKEN BY THE DEFENDANT WITHOUT ANY ACTION BY HIM OR HIS
COUNSEL," (FN2) AND THAT IN SUCH CASES "THE ENTIRE RECORD OF THE ACTION
SHALL BE PREPARED."  (FN3)  THE SUPREME COURT OF THE STATE OF
CALIFORNIA AFFIRMED PETITIONER'S CONVICTION BY A DIVIDED COURT.  38
CAL. 2D 166, 238 P.2D 1001. 

AT THE TRIAL PETITIONER INSISTED UPON DEFENDING HIMSELF, AND
REPEATEDLY REFUSED THE TRIAL COURT'S OFFER OF COUNSEL, ALTHOUGH HE DID
HAVE AT HIS DISPOSAL THE SERVICES OF A DEPUTY PUBLIC DEFENDER, WHO
ACTED AS HIS "LEGAL ADVISER" AND WAS PRESENT AT THE COUNSEL TABLE
THROUGHOUT THE TRIAL.  ABOUT A MONTH AFTER THE CONCLUSION OF THE TRIAL,
THE OFFICIAL COURT REPORTER OF THE TRIAL PROCEEDINGS SUDDENLY DIED,
HAVING AT THAT TIME COMPLETED THE DICTATION INTO A RECORDING MACHINE OF
WHAT LATER TURNED OUT TO BE 646 OUT OF 1,810 PAGES OF THE TRIAL
TRANSCRIPT.  FOLLOWING THE DENIAL OF PETITIONER'S MOTION IN THE
SUPERIOR COURT FOR A NEW TRIAL, (FN4) THERE ENSUED THE PREPARATION AND
SETTLEMENT OF THE TRIAL TRANSCRIPT CONSTITUTING THE APPELLATE RECORD
UPON WHICH THE CALIFORNIA SUPREME COURT SUBSEQUENTLY HEARD PETITIONER'S
APPEAL.  IT IS THE CIRCUMSTANCES UNDER WHICH THIS TRANSCRIPT WAS
PREPARED AND SETTLED THAT GIVE RISE TO THE ISSUE NOW CONFRONTING US. 

AT THE INSTANCE OF THE DEPUTY DISTRICT ATTORNEY IN CHARGE OF THE
CASE, AND WITH THE APPROVAL OF THE TRIAL JUDGE, ONE STANLEY FRASER, A
COURT REPORTER AND FORMER COLLEAGUE OF THE DECEASED REPORTER, PERRY,
WAS EMPLOYED IN SEPTEMBER 1948 TO TRANSCRIBE THE UNCOMPLETED PORTION OF
PERRY'S SHORTHAND NOTES, AMOUNTING TO 1,164 PAGES AS FINALLY
TRANSCRIBED.  IN NOVEMBER 1948 PETITIONER UNSUCCESSFULLY SOUGHT TO HAVE
THE CALIFORNIA SUPREME COURT HALT THE PREPARATION OF THE TRANSCRIPT ON
THE GROUND THAT PERRY'S NOTES COULD NOT BE TRANSCRIBED WITH REASONABLE
ACCURACY.  (FN5)  FRASER ACCORDINGLY WENT FORWARD WITH THE WORK, AND
WAS OCCUPIED WITH IT OVER THE NEXT SEVERAL MONTHS.  A "ROUGH" DRAFT OF
THE TRANSCRIPT WAS SUBMITTED TO THE TRIAL JUDGE IN FEBRUARY 1949, BUT
WAS NOT MADE AVAILABLE TO PETITIONER, ALTHOUGH HE HAD REQUESTED THAT IT
BE FURNISHED HIM.  AFTER THIS DRAFT HAD BEEN GONE OVER BY THE DEPUTY
DISTRICT ATTORNEY, IT WAS FILED WITH THE JUDGE IN FINAL FORM ON APRIL
11, 1949, AND A COPY WAS THEN SENT TO THE PETITIONER AT SAN QUENTIN
PRISON.  THEREAFTER PETITIONER SENT TO THE TRIAL JUDGE A LIST OF SOME
200 CORRECTIONS TO THE TRANSCRIPT, AND AT THE SAME TIME MOVED THAT: 

"A HEARING BE ORDERED  ...  TO ENABLE PETITIONER TO DETERMINE
ACTUALLY THE ABILITY OF MR. FRASER TO READ MR. PERRY'S NOTES, AND TO
ENABLE THE PETITIONER TO OFFER A SHOWING THIS IS NOT, AND CHALLENGE IT
AS, A USABLE TRANSCRIPT, AND TO ENABLE PETITIONER TO POINT OUT TO THE
COURT, THE MANY INACCURACIES AND OMISSIONS IN THIS TRANSCRIPT, TO PROVE
THESE INACCURACIES AND OMISSIONS - AND FOR THE COURT TO DETERMINE THESE
MATTERS  ...  ." 

IN THESE PAPERS PETITIONER FURTHER STATED THAT HE HAD "NOT YET HAD
THE OPPORTUNITY TO CONFER WITH HIS LEGAL ADVISOR DURING THE TRIAL AND
CONSEQUENTLY HAS BEEN HESITANT TO OFFER ERROR IN CERTAIN INSTANCES
UNTIL HE HAS VERIFIED THIS ERROR WITH HIS LEGAL ADVISOR." 

PETITIONER'S MOTION WAS DENIED AND THE MATTER CONTINUED TO PROCEED ON
AN EX PARTE BASIS TO FINAL CONCLUSION.  AT HEARINGS HELD ON JUNE 1, 2,
AND 3, 1949, IN WHICH PETITIONER WAS NOT REPRESENTED IN PERSON OR BY AN
ATTORNEY, THE TRIAL JUDGE, AFTER HEARING FRASER'S TESTIMONY AS TO THE
ACCURACY OF HIS TRANSCRIPTION AND ALLOWING SOME 80 OF THE CORRECTIONS
LISTED BY PETITIONER, SETTLED THE RECORD UPON WHICH PETITIONER'S
AUTOMATIC APPEAL WAS TO BE HEARD.  THEREAFTER PETITIONER MADE A MOTION
IN THE CALIFORNIA SUPREME COURT ATTACKING THE ADEQUACY OF THESE
SETTLEMENT PROCEEDINGS, COMPLAINING, AMONG OTHER THINGS, THAT HE HAD
NOT BEEN PERMITTED TO APPEAR AT SUCH PROCEEDINGS.  WHILE THAT MOTION
WAS PENDING, ON AUGUST 18, 1949, A FURTHER HEARING WAS HELD BEFORE THE
TRIAL JUDGE WITH REFERENCE TO THE SETTLEMENT OF THE RECORD, AT WHICH
TWO WITNESSES WERE EXAMINED.  AGAIN, PETITIONER WAS NOT REPRESENTED AT
THIS HEARING EITHER IN PERSON OR BY COUNSEL.  THE SUFFICIENCY OF THE
RECORD, AS THUS SETTLED, WAS UPHELD BY THE CALIFORNIA SUPREME COURT,
FIRST UPON THE MOTION JUST MENTIONED, 35 CAL. 2D 455, 218 P.2D 769, AND
SUBSEQUENTLY UPON PETITIONER'S APPEAL FROM HIS CONVICTION, 38 CAL. 2D
166, 238 P.2D 1001. 

ON OCTOBER 17, 1955, THIS COURT, REVERSING THE COURT OF APPEALS,
REMANDED TO THE DISTRICT COURT FOR A HEARING PETITIONER'S APPLICATION
FOR A WRIT OF HABEAS CORPUS, CHARGING FRAUD IN THE PREPARATION OF THE
STATE COURT RECORD, WHICH HAD BEEN SUMMARILY DISMISSED BY THE DISTRICT
COURT.  350 U.S. 3.  (FN6)  THIS RESULTED IN THE JUDGMENT WHICH IS NOW
BEFORE US.  THE DISTRICT COURT HELD THAT NO FRAUD HAD BEEN SHOWN.  THE
RECORD OF PROCEEDINGS HELD BEFORE DISTRICT JUDGE GOODMAN REVEALS THE
FOLLOWING ADDITIONAL FACTS AS TO THE PREPARATION OF THE STATE COURT
RECORD, NONE OF WHICH APPEAR TO BE DISPUTED BY THE STATE, WHICH HAS
BEEN ABLY AND CONSCIENTIOUSLY REPRESENTED HERE:  FRASER, THE SUBSTITUTE
REPORTER, WAS AN UNCLE BY MARRIAGE OF THE DEPUTY DISTRICT ATTORNEY IN
CHARGE OF THIS CASE, A FACT OF WHICH NEITHER THE STATE TRIAL COURT NOR
THE APPELLATE COURT WAS AWARE WHEN IT APPROVED THE TRANSCRIPT.  IN
PREPARING THE TRANSCRIPT, FRASER WORKED IN CLOSE COLLABORATION WITH THE
PROSECUTOR, AND ALSO WENT OVER WITH TWO POLICE OFFICERS, WHO TESTIFIED
FOR THE STATE AT THE TRIAL, HIS TRANSCRIPTION OF THEIR TESTIMONY.  THE
LATTER EPISODES WERE LIKEWISE UNKNOWN TO THE STATE COURTS WHEN THEY
APPROVED THE TRANSCRIPT.  THE TESTIMONY OF ONE OF THESE OFFICERS
CONCERNED PETITIONER'S ALLEGED CONFESSION, A SUBJECT OF DISPUTE AT THE
TRIAL, AND PETITIONER'S LIST OF ALLEGED INACCURACIES, ALREADY
MENTIONED, RELATED TO SOME OF THAT TESTIMONY.  IT ALSO APPEARED AT THIS
HEARING THAT FRASER HAD DESTROYED THE "ROUGH" DRAFT OF HIS
TRANSCRIPTION WHICH PETITIONER HAD SOUGHT TO OBTAIN DURING THE
SETTLEMENT PROCEEDINGS.  (FN7) 

UNDER THE CIRCUMSTANCES WHICH HAVE BEEN SUMMARIZED, WE MUST HOLD THAT
THE EX PARTE SETTLEMENT OF THIS STATE COURT RECORD VIOLATED
PETITIONER'S CONSTITUTIONAL RIGHT TO PROCEDURAL DUE PROCESS.  WE THINK
THE PETITIONER WAS ENTITLED TO BE REPRESENTED THROUGHOUT THOSE
PROCEEDINGS EITHER IN PERSON OR BY COUNSEL.  SEE POWELL V. ALABAMA, 287
U.S. 45, 68; SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105; COMPARE DOWDELL
V. UNITED STATES, 221 U.S. 325, 331; SCHWAB V. BERGGREN, 143 U.S. 442,
449; SEE ALSO COLE V. ARKANSAS, 333 U.S. 196, 201.  IF CALIFORNIA CHOSE
TO DENY PETITIONER'S REQUEST TO APPEAR IN THOSE PROCEEDINGS IN PROPRIA
PERSONA, IT THEN BECAME INCUMBENT ON THE STATE TO APPOINT COUNSEL FOR
HIM.  CF. POWELL V. ALABAMA, SUPRA.  WE CANNOT AGREE THAT PETITIONER'S
REFUSAL TO BE REPRESENTED BY COUNSEL AT THE TRIAL CONSTITUTED A WAIVER
OF HIS RIGHT TO COUNSEL AT THE SETTLEMENT PROCEEDINGS.  (FN8)
MOREOVER, IT IS AT LEAST DOUBTFUL WHETHER, AS A MATTER OF DUE PROCESS,
ANY SUCH WAIVER WOULD BE EFFECTIVE TO RELIEVE THE TRIAL JUDGE OF A DUTY
TO APPOINT COUNSEL FOR PETITIONER IN CONNECTION WITH THE SETTLEMENT OF
THIS RECORD, WHICH WAS A NECESSARY (FN9) AND INTEGRAL PART OF THE
COMPULSORY APPEAL PROVIDED BY CALIFORNIA IN CAPITAL CASES.  (FN10)  WE
NEED NOT DECIDE THAT QUESTION, HOWEVER, FOR THE RECORD FAILS TO SHOW
THAT PETITIONER EVER WAIVED HIS RIGHT TO COUNSEL IN CONNECTION WITH THE
SETTLEMENT OF THE APPELLATE RECORD. 

NOR CAN WE REGARD THE HEARINGS BEFORE JUDGE GOODMAN, AT WHICH
PETITIONER WAS BOTH REPRESENTED BY COUNSEL AND PERSONALLY PRESENT, AS
CURING THE LACK OF PROCEDURAL DUE PROCESS IN THE STATE PROCEEDINGS. 
JUDGE GOODMAN CONSIDERED THAT OUR ORDER OF OCTOBER 17, 1955, RESTRICTED
THE INQUIRY BEFORE HIM TO THE ISSUE OF WHETHER THE SETTLEMENT OF THE
STATE COURT RECORD HAD BEEN TAINTED BY FRAUD, AND THAT THE ACCURACY OF
THE RECORD, AS SUCH, WAS NOT AN ISSUE IN THIS PROCEEDING.  (FN11) WE
ACCEPT FULLY JUDGE GOODMAN'S FINDING THAT THERE WAS NO FRAUD.  EVEN SO,
THE FACT REMAINS THAT THE PETITIONER HAS NEVER HAD HIS DAY IN COURT
UPON THE CONTROVERSIAL ISSUES OF FACT AND LAW INVOLVED IN THE
SETTLEMENT OF THE RECORD UPON WHICH HIS CONVICTION WAS AFFIRMED. 

BY NO MEANS ARE WE TO BE UNDERSTOOD AS SAYING THAT THE STATE RECORD
HAS BEEN SHOWN TO BE INACCURATE OR INCOMPLETE.  ALL WE HOLD IS THAT,
CONSISTENTLY WITH PROCEDURAL DUE PROCESS, CALIFORNIA'S AFFIRMANCE OF
PETITIONER'S CONVICTION UPON A SERIOUSLY DISPUTED RECORD, WHOSE
ACCURACY PETITIONER HAS HAD NO VOICE IN DETERMINING, CANNOT BE ALLOWED
TO STAND.  (FN12)  WITHOUT BLINKING THE FACT THAT THE HISTORY OF THIS
CASE PRESENTS A SORRY CHAPTER IN THE ANNALS OF DELAYS IN THE
ADMINISTRATION OF CRIMINAL JUSTICE, (FN13) WE CANNOT ALLOW THAT
CIRCUMSTANCE TO DETER US FROM WITHHOLDING RELIEF SO CLEARLY CALLED
FOR.  (FN14)  ON MANY OCCASIONS THIS COURT HAS FOUND IT NECESSARY TO
SAY THAT THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT MUST BE RESPECTED, NO MATTER HOW HEINOUS THE CRIME IN
QUESTION AND NO MATTER HOW GUILTY AN ACCUSED MAY ULTIMATELY BE FOUND TO
BE AFTER GUILT HAS BEEN ESTABLISHED IN ACCORDANCE WITH THE PROCEDURE
DEMANDED BY THE CONSTITUTION.  EVIDENTLY IT ALSO NEEDS TO BE REPEATED
THAT THE OVERRIDING RESPONSIBILITY OF THIS COURT IS TO THE CONSTITUTION
OF THE UNITED STATES, NO MATTER HOW LATE IT MAY BE THAT A VIOLATION OF
THE CONSTITUTION IS FOUND TO EXIST.  THIS COURT MAY NOT DISREGARED THE
CONSTITUTION BECAUSE AN APPEAL IN THIS CASE, AS IN OTHERS, HAS BEEN
MADE ON THE EVE OF EXECUTION.  WE MUST BE DEAF TO ALL SUGGESTIONS THAT
A VALID APPEAL TO THE CONSTITUTION, EVEN BY A GUILTY MAN, COMES TOO
LATE, BECAUSE COURTS, INCLUDING THIS COURT, WERE NOT EARLIER ABLE TO
ENFORCE WHAT THE CONSTITUTION DEMANDS.  THE PROPONENT BEFORE THE COURT
IS NOT THE PETITIONER BUT THE CONSTITUTION OF THE UNITED STATES. 

WE HAVE GIVEN CAREFUL CONSIDERATION TO THE NATURE OF THE RELIEF TO BE
GRANTED.  PETITIONER'S DISCHARGE IS NOT TO BE ORDERED WITHOUT AFFORDING
CALIFORNIA AN OPPORTUNITY TO REVIEW HIS CONVICTION UPON A RECORD THE
SUFFICIENCY OF WHICH HAS BEEN LITIGATED IN PROCEEDINGS SATISFYING THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS.  NOR DO WE THINK IT WILL DO
SIMPLY TO REMAND THE CASE TO THE DISTRICT COURT FOR AN INQUIRY INTO THE
ACCURACY OF THE RECORD UPON WHICH THE CALIFORNIA SUPREME COURT HAS
ALREADY ACTED.  THE TASK OF AFFORDING PETITIONER A FURTHER REVIEW OF
HIS CONVICTION UPON A PROPERLY SETTLED RECORD IS NECESSARILY ONE FOR
THE STATE COURTS.  A FEDERAL COURT IS IN NO SUCH POSITION AS THE STATE
COURTS ARE TO DETERMINE WHAT INACCURACIES OR OTHER FACTS MIGHT BE
DECISIVE UNDER STATE LAW, PARTICULARLY IN VIEW OF THE UNUSUAL CHARACTER
OF THE ISSUES HERE INVOLVED.  WE CONCLUDE, THEREFORE, THAT OUR PROPER
COURSE IS TO VACATE THE JUDGMENTS OF THE COURT OF APPEALS AND THE
DISTRICT COURT AND TO REMAND THE CASE TO THE DISTRICT COURT, WITH
INSTRUCTIONS TO ENTER SUCH ORDERS AS MAY BE APPROPRIATE TO ALLOW
CALIFORNIA A REASONABLE TIME WITHIN WHICH TO TAKE FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION, FAILING WHICH THE PETITIONER SHALL
BE DISCHARGED.  CF. DOWD V. UNITED STATES, 340 U.S. 206, 209-210.  IT
IS SO ORDERED. 

FN1  239 F.2D 205.  CHIEF JUDGE DENMAN DISSENTED. 

FN2  WEST'S ANN. CAL. CODES, PENAL CODE, SEC. 1239(B). 

FN3  CALIFORNIA RULES ON APPEAL, RULE 33(C), 36 CAL. 2D 28. 

FN4  WHERE THE MAKING OF A TRANSCRIPT OF A CIVIL TRIAL BECOMES
IMPOSSIBLE BY REASON OF THE DEATH OR DISABILITY OF THE COURT REPORTER,
THE CALIFORNIA STATUTES EMPOWER THE TRIAL JUDGE TO SET ASIDE THE
JUDGMENT AND ORDER A NEW TRIAL.  WEST'S ANN. CAL. CODES, CODE CIV.
PROC., SEC. 953E.  THE CALIFORNIA PENAL CODE, HOWEVER, CONTAINS NO
COMPARABLE PROVISION.    FN5  ON SEPTEMBER 16, 1948, WHEN THE
APPOINTMENT OF THE SUBSTITUTE STENOGRAPHER WAS UNDER CONSIDERATION, THE
CHAIRMAN OF THE EXECUTIVE COMMITTEE OF THE LOS ANGELES SUPERIOR COURT
REPORTERS' ASSOCIATION WROTE THE BOARD OF SUPERVISORS RESPECTING THE
MATTER, AS FOLLOWS:  "WE BELIEVE THE PURPORTED CHARGE AGAINST THE
COUNTY IS NOT ONLY AN EXORBITANT ONE PER SE, BUT WILL REFLECT FURTHER
ADVERSE PUBLICITY UPON OUR GROUP BECAUSE WE HAVE SERIOUS DOUBTS THAT
ANY REPORTER WILL BE ABLE TO FURNISH A USABLE TRANSCRIPT OF SAID
SHORTHAND NOTES.  OTHER REPORTERS OF OUR NUMBER HAVE EXAMINED AND
STUDIED MR. PERRY'S NOTES AND HAVE REACHED THE CONCLUSION THAT MANY
PORTIONS OF THE SAME WILL BE FOUND COMPLETELY INDECIPHERABLE BECAUSE,
TOWARD THE LATTER PART OF EACH COURT SESSION, MR. PERRY'S NOTES SHOW
HIS ILLNESS.  WE FEEL THAT THIS SHOULD BE BROUGHT TO YOUR ATTENTION." 

FN6  ON FIVE PREVIOUS OCCASIONS, THIS COURT HAD DENIED PETITIONS FOR
CERTIORARI FILED BY THIS PETITIONER.  SEE NOTE 13, INFRA. 

FN7  PETITIONER ALLEGES THAT THERE WERE OTHER RELEVANT CIRCUMSTANCES
THAT SHOULD HAVE BEEN EXPLORED IN THE STATE SETTLEMENT PROCEEDINGS, BUT
COULD NOT, HE ASSERTS, BE PROVED IN THE HEARINGS BEFORE JUDGE GOODMAN
BECAUSE OF INABILITY TO SECURE RECORDS AND THE ATTENDANCE OF WITNESSES
FROM OUTSIDE THE NORTHERN DISTRICT OF CALIFORNIA. 

FN8  THE FOLLOWING STATEMENT OF THE PETITIONER AT THE TRIAL, QUOTED
IN THE STATE'S PRESENT BRIEF, HARDLY SUPPORTS THE CLAIM OF SUCH A
CONTINUING WAIVER:  "I WISH TO POINT OUT THAT IT IS MY INTENTION  ...
AT THIS TIME TO REPRESENT MYSELF AND TO CONTINUE TO DO SO UNTIL SUCH
TIME AS IT IS LEGALLY ESTABLISHED THAT I AM NOT QUALIFIED TO DO SO, AND
THAT I WILL NOT ACCEPT A COURT-APPOINTED ATTORNEY."  SEE JOHNSON V.
ZERBST, 304 U.S. 458, 464. 

FN9  SEE NOTE 3, SUPRA.  IN GRANTING A CERTIFICATE OF PROBABLE CAUSE
FOR APPEAL TO THE COURT OF APPEALS IN THE PRESENT PROCEEDING, CHIEF
JUDGE DENMAN NOTED:  "HOW IMPORTANT THE CALIFORNIA LAW REGARDS THIS
TRANSCRIPTION OF THE TRIAL PROCEEDINGS AND CERTIFICATION AS TO ITS
CORRECTNESS BY THE REPORTER IS APPARENT FROM THE FACT THAT IN CIVIL
CASES THE DEATH OF THE REPORTER BEFORE HIS TRANSCRIPTION AND
CERTIFICATION, GIVES THE TRIAL COURT THE DISCRETIONARY POWER TO SET
ASIDE THE JUDGMENT AND ORDER A NEW TRIAL.  CALIFORNIA CODE OF CIVIL
PROCEDURE, SEC. 953E.  BY SOME QUIRK IN CALIFORNIA LEGISLATION THIS
DOES NOT APPLY TO CRIMINAL CASES.  HOWEVER, IT IS OBVIOUS THAT IF THE
REPORTER'S TRANSCRIPT IS SO IMPORTANT AS TO GIVE THE COURT SUCH POWER
IN A CIVIL CASE, A FORTIORI IT MUST HAVE SUCH IMPORTANCE IN A CRIMINAL
CASE IN WHICH, ON THE EVIDENCE TO BE TRANSCRIBED, THE ACCUSED IS
SENTENCED TO DEATH.  LIKEWISE ITS IMPORTANCE IS EMPHASIZED BY THE
CALIFORNIA LAW MAKING THE APPEAL AUTOMATIC FROM DEATH SENTENCES. 
CALIFORNIA PENAL CODE, SEC. 1239(B)."  IN RE CHESSMAN, 219 F.2D 162,
164. 

FN10  SEE NOTE 2, SUPRA.  COUNSEL FOR THE PETITIONER, WHOSE
REPRESENTATIONS IN THIS REGARD WERE NOT CHALLENGED BY THE STATE,
INFORMED US ON THE ORAL ARGUMENT THAT THE CALIFORNIA SUPREME COURT
CUSTOMARILY APPOINTS COUNSEL FOR THE DEFENDANT WHEN HE IS NOT OTHERWISE
REPRESENTED BY COUNSEL ON AN AUTOMATIC APPEAL. 

FN11  JUDGE GOODMAN DID STATE, HOWEVER, THAT HE FOUND PETITIONER'S
CLAIMS WITH RESPECT TO CERTAIN ALLEGED PREJUDICIAL COMMENTS BY THE
TRIAL JUDGE AND THE PROSECUTOR TO BE WITHOUT FOUNDATION.  IN THE
CONTEXT OF THE LIMITED ISSUE WITH WHICH THE JUDGE WAS HERE CONCERNED,
WE SHOULD BE SLOW TO REGARD THESE "FINDINGS" AS POSSESSING THE SAME
CONCLUSIVENESS AS IF THEY HAD BEEN MADE IN A PROCEEDING WHERE THE
ACCURACY OF THE RECORD, AS SUCH, WAS IN ISSUE. 

FN12  IN VIEW OF OUR HOLDING WE CANNOT REGARD OURSELVES AS CONCLUDED
BY THE CALIFORNIA SUPREME COURT'S HOLDINGS THAT THE RECORD ON WHICH IT
ACTED WAS ADEQUATE AS A MATTER OF STATE LAW, AND THAT, IN ANY EVENT,
THE INACCURACIES THEN CLAIMED BY THE PETITIONER WOULD NOT HAVE CHANGED
THE RESULT OF HIS APPEAL.  PETITIONER IS ENTITLED TO HAVE HIS
CONVICTION REVIEWED UPON A RECORD WHICH HAS BEEN SETTLED IN ACCORDANCE
WITH PROCEDURAL DUE PROCESS.  MOREOVER, IN HOLDING AS IT DID THE STATE
COURT WAS NOT AWARE OF THE FACTS LATER DEVELOPED IN HEARINGS BEFORE
JUDGE GOODMAN, SEE P. 161, SUPRA, AND WE CANNOT KNOW THAT THOSE FACTS,
AND OTHERS THAT MIGHT BE DISCLOSED UPON AN ADVERSARY HEARING FOCUSED
SQUARELY ON THE ADEQUACY OF THE TRANSCRIPT, WOULD NOT LEAD IT TO A
DIFFERENT CONCLUSION. 

FN13  CERTAINLY THIS COURT'S PREVIOUS DENIALS OF CERTIORARI, 340 U.S.
840; 341 U.S. 929; 343 U.S. 915; 346 U.S. 916; 348 U.S. 864, DO NOT
FORECLOSE US FROM NOW GRANTING APPROPRIATE RELIEF.  BROWN V. ALLEN, 344
U.S. 443.  AND IT MAY BE NOTED THAT IT WAS NOT UNTIL THE PRESENT
PROCEEDINGS IN THE DISTRICT COURT THAT THE FACTS SURROUNDING THE
SETTLEMENT OF THE STATE COURT RECORD WERE FULLY DEVELOPED. 

FN14  IN MOONEY V. HOLOHAN, 294 U.S. 103, THIS COURT DID NOT HESITATE
TO DEAL WITH A CLAIMED DENIAL OF CONSTITUTIONAL RIGHTS SOME 18 YEARS
AFTER THE PETITIONER HAD BEEN CONVICTED IN A STATE COURT.  SEE ALSO
PRICE V. JOHNSTON, 334 U.S. 266, 291. 

MR. JUSTICE BURTON DISSENTS BECAUSE HE BELIEVES THAT, UPON
CONSIDERATION OF ALL THE CIRCUMSTANCES OF THIS CASE, THE STATE OF
CALIFORNIA HAS ACCORDED TO THIS PETITIONER DUE PROCESS OF LAW WITHIN
THE MEANING OF THE CONSTITUTION OF THE UNITED STATES. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE CLARK CONCURS,
DISSENTING. 

I AGREE WITH THE GENERAL PRINCIPLE ANNOUNCED BY THE COURT.  BUT I
THINK IT IS MISAPPLIED HERE.  ITS APPLICATION TO THE FACTS RESULTS, I
FEAR, IN A NEEDLESS DETOUR IN A CASE ALREADY LONG-DRAWN-OUT BY MANY
APPEALS.  (FN1) 

I AGREE THAT IN A CASE LIKE THIS IT MATTERS NOT WHETHER THE
PETITIONER IS GUILTY OR INNOCENT, WHETHER HIS COMPLAINT IS TIMELY OR
TARDY.  WE SHOULD RESPECT A MAN'S CONSTITUTIONAL RIGHT WHENEVER OR
HOWEVER IT IS PRESENTED TO US.  MY DIFFICULTY HERE IS NOT WITH ANY
PRINCIPLE THE COURT ANNOUNCES.   MY DISSENT IS BASED ON THE CONVICTION
THAT, IN SUBSTANCE, THE REQUIREMENTS OF DUE PROCESS HAVE BEEN FULLY
SATISFIED, THAT TO REQUIRE MORE IS TO EXALT A TECHNICALITY. 

TO SAY THAT THE SETTLEMENT IN THIS CASE WAS EX PARTE IS TO BE
TECHNICALLY ACCURATE.  BUT IT IS NOT TO STATE THE WHOLE STORY. 
CHESSMAN WAS NOT PRESENT IN COURT WHEN THE RECORD WAS SETTLED.  NOR WAS
HE REPRESENTED THERE BY A LAWYER, FOR HE HAD OVER AND AGAIN REFUSED TO
ALLOW A STATE-APPOINTED LAWYER TO REPRESENT HIM.  CHESSMAN, HOWEVER,
PLAYED AN ACTIVE ROLE IN THE PROCESS OF THE SETTLEMENT OF THE RECORD. 
THE EARLY DRAFT PREPARED BY FRASER, THE NEW REPORTER, WAS SENT TO HIM
FOR HIS SUGGESTIONS.  THAT CHESSMAN WENT OVER THIS DRAFT WITH A FINE
TOOTH COMB IS EVIDENT FROM A READING OF 200-ODD CORRECTIONS WHICH HE
PREPARED.  OF THESE PROPOSALS, ABOUT 80 WERE ADOPTED AND THE REST
REFUSED.  (FN2)  SOME OF THESE PROPOSALS WERE SPECIFIC, CALLING THE
COURT'S ATTENTION TO THE USE OF A WRONG WORD OR PHRASE.  MANY WERE NOT
SPECIFIC.  SOME MERELY SAID THAT THE REPORTED VERSION OF CERTAIN
TESTIMONY WAS GARBLED OR INCOMPLETE OR INACCURATE.  THESE GENERALIZED
CRITICISMS WERE NEVER MADE SPECIFIC.  WHEN CHESSMAN MADE A GENERALIZED
CRITICISM, NOT ONCE DID HE INDICATE SUCH AND SUCH A FACT HAD BEEN
OMITTED AND PREJUDICE SHOWN, HOW AN EPISODE HAD BEEN DISTORTED AND
PREJUDICE SHOWN, WHERE A DATE OR NAME HAD BEEN CONFUSED AND PREJUDICE
SHOWN, IN WHAT MATERIAL RESPECT AN ACCOUNT WAS GARBLED AND PREJUDICE
SHOWN.  ERRORS MIGHT HAVE BEEN MADE THAT WERE MINOR AND INCONSEQUENTIAL
OR MAJOR AND FATAL.  FROM ALL THAT CHESSMAN SAID TO THE CALIFORNIA
COURTS AND FROM ALL HE NOW SAYS TO THIS COURT, IT IS IMPOSSIBLE TO
CONCLUDE THAT THERE IS ANY IMPORTANT, SIGNIFICANT PREJUDICIAL ERROR IN
THE RECORD ON WHICH THE APPEAL IN THIS CASE WAS TAKEN.  CERTAINLY WE
ARE POINTED TO NONE.  ONLY VAGUE ASSERTIONS ARE MADE.  NOT ONCE IS A
FINGER PLACED ON A CRUCIAL ISSUE OF THE CASE AND A SHOWING MADE OR
ATTEMPTED THAT ON THAT ISSUE THE FACTS WERE DISTORTED TO CHESSMAN'S
PREJUDICE.  THE CONCLUSION IS IRRESISTIBLE THAT CHESSMAN IS PLAYING A
GAME WITH THE COURTS, STALLING FOR TIME WHILE THE FACTS OF THE CASE
GROW COLD. 

MUCH TIME IS GIVEN TO THE FACT THAT FRASER, THE SUBSTITUTE REPORTER,
WAS RELATED TO THE PROSECUTOR AND TO THE FACT THAT FRASER, IN
RECONSTRUCTING THE RECORD, TALKED WITH SEVERAL WITNESSES FOR THE
STATE.  THOSE CIRCUMSTANCES CONCEIVABLY COULD GIVE RISE TO PREJUDICE. 
YET NOT ONCE DOES CHESSMAN SAY IN WHAT WAY THE WORDS OF A WITNESS ON A
CRITICAL ISSUE ARE DISTORTED SO AS TO CAUSE PREJUDICE TO CHESSMAN'S
APPEAL.  WE KNOW THAT THERE WAS NO CONNIVANCE BETWEEN THE PROSECUTOR
AND THE SUBSTITUTE REPORTER, FOR SUCH WAS THE FINDING OF THE DISTRICT
COURT.  CHESSMAN V. TEETS, 138 F. SUPP. 761.  AND THOSE FINDINGS ARE
NOT SUBJECT TO CHALLENGE, AS WE LIMITED OUR GRANT OF CERTIORARI.  WHAT
WE ARE TOLD - AND ALL THAT WE ARE TOLD - IS THAT CHESSMAN SHOULD HAVE
BEEN PRESENT IN PERSON OR BY AN ATTORNEY AT THE HEARING WHERE THE
RECORD WAS SETTLED.  ERROR IS PRESUMED BECAUSE HE WAS NOT PRESENT NOR
REPRESENTED.  BUT WE SHOULD PRESUME JUST THE CONTRARY, SINCE CHESSMAN
HAD THE OPPORTUNITY TO SUBMIT HIS VERSION AND INDICATE ANY ERRORS IN
THE RECONSTRUCTED RECORD AND YET CAME UP WITH NO SINGLE OMISSION,
DISTORTION, FALSIFICATION, MISTAKE, OR ERROR THAT COULD REASONABLY BE
SAID TO BE PREJUDICIAL. 

A GOOD ILLUSTRATION CONCERNS THE MAIN ISSUE ON THE APPEAL - THE SO
CALLED CONFESSION OBTAINED FROM CHESSMAN.  THE CONFESSION WAS HELD
ADMISSIBLE BY THE SUPREME COURT OF CALIFORNIA.  PEOPLE V. CHESSMAN, 38
CAL. 2D 166, 178-182, 238 P.2D 1001, 1008-1011.  THAT WAS THE MAIN
POINT IN THE PETITION FOR CERTIORARI BROUGHT HERE IN THE 1951 TERM.  IT
PRESENTED THE PROBLEM OF THE EFFECT OF PROLONGED DETENTION BY THE
POLICE ON THE VOLUNTARY CHARACTER OF THE CONFESSION, THE TYPE OF
PROBLEM PRESENTED IN HALEY V. OHIO, 332 U.S. 596; WATTS V. INDIANA, 338
U.S. 49; TURNER V. PENNSYLVANIA, 338 U.S. 62; AND HARRIS V. SOUTH
CAROLINA, 338 U.S. 68.  THE COURT DENIED CERTIORARI.  CHESSMAN V.
CALIFORNIA, 343 U.S. 915. 

IN THAT PETITION CHESSMAN CLAIMED WHAT HE CLAIMS NOW - THAT HE SHOULD
HAVE HAD A HEARING ON THE SETTLEMENT OF THE RECORD.  AND HE ASSERTED
THAT, IF THE TRANSCRIPT HAD BEEN WHOLLY ACCURATE, IT WOULD BE OBVIOUS
THAT THE CONFESSION WAS INVOLUNTARY, WHILE ON THE RECONSTRUCTED RECORD
THE QUESTION WAS MORE DEBATABLE. 

THE RECONSTRUCTED RECORD SHOWS THAT CHESSMAN WAS HELD INCOMMUNICADO
ABOUT 72 HOURS BY THE POLICE BEFORE ARRAIGNMENT.  DURING THIS TIME HE
WAS BEATEN TO SOME EXTENT.  DURING THIS TIME HE WAS INTERROGATED OFF
AND ON BY THE POLICE.  ONLY WHEN HE HAD MADE AN ORAL CONFESSION WAS HE
ARRAIGNED.  NOT ONCE IN THE EARLIER PETITION OR IN THE PRESENT ONE OR
IN ANY OTHER MOTION PAPER DID CHESSMAN REBUT THE ACCURACY OF THE FACTS
STATED IN THE RECONSTRUCTED RECORD.  HE DID NOT, FOR EXAMPLE, ALLEGE HE
WAS HELD LONGER THAN 72 HOURS.  HE DID NOT SAY HE WAS BEATEN MORE OFTEN
OR MORE SEVERELY THAN THE RECONSTRUCTED RECORD SHOWS.  HE DID NOT
ASSERT THAT HE WAS INTERROGATED FOR LONGER PERIODS OR SUBJECTED TO A
GREATER ORDEAL THAN THE RECONSTRUCTED RECORD STATES.  YET CERTAINLY HE
KNOWS WHETHER HE WAS OR WHETHER HE WAS NOT. 

HE ADVANCES NO FACT, NO ASSERTION, NO EVIDENCE TO SHOW THAT ON THIS
CRITICAL ISSUE IN THE CASE - AND IN MY MIND THE MOST IMPORTANT ONE -
THE RECONSTRUCTED RECORD IS DISTORTED.  I WOULD PRESUME ACCURACY, NOT
ERROR, IN ANY RECORD FROM ANY COURT.  I WOULD INSIST THAT THIS
DEFENDANT MAKE SOME SHOWING OF INACCURACY IN A MATERIAL WAY BEFORE I
WOULD SEND THIS RECORD BACK FOR FURTHER RECONSTRUCTION. 

ONLY ONCE DURING THE LONG HISTORY OF THIS CASE HAS CHESSMAN POINTED
SPECIFICALLY TO MATERIAL INACCURACY OR OMISSION IN THE TRANSCRIPT.  HIS
CHARGE OF FRAUD, NOW SET TO REST BY THE FINDINGS OF THE DISTRICT COURT,
WAS PREDICATED UPON A CONSPIRACY TO HAVE EXPUNGED FROM THE RECORD
CERTAIN SPECIFIC REMARKS AND INSTRUCTIONS OF THE TRIAL COURT.  THESE
OMISSIONS HAD NOT BEEN MENTIONED IN THE LONG LIST OF INACCURACIES WHICH
CHESSMAN SUBMITTED TO THE CALIFORNIA COURTS.  AND, ON THESE
CONTENTIONS, CHESSMAN HAS NOW BEEN GIVEN A HEARING BY THE DISTRICT
COURT, WHICH FOUND: 

"8.  THE INSTRUCTIONS GIVEN BY THE TRIAL JUDGE TO THE JURY ON MAY 21,
1948 WERE CORRECTLY AND ACCURATELY REPORTED IN THE TRANSCRIPT AS
PREPARED BY FRASER.  THE TRIAL JUDGE DID NOT INSTRUCT THE JURY AT THAT
TIME AS ALLEGED AND TESTIFIED TO BY PETITIONER.  PETITIONER'S
STATEMENTS IN THIS REGARD ARE FALSE AND PERJURIOUS. 

"9.  THE ALLEGATION IN THE PETITION THAT THE TRIAL JUDGE STATED TO
THE JURY ON MAY 21, WHEN INSTRUCTING THEM, THAT 'THIS DEFENDANT IS ONE
OF THE WORST CRIMINALS I HAVE HAD IN MY COURT' IS FALSE AND
PERJURIOUS.  THE TRIAL JUDGE MADE NO SUCH STATEMENT.  HENCE THE
TRANSCRIPT WAS CORRECT IN NOT INCLUDING SUCH STATEMENT."  138 F. SUPP.,
AT 765-766. 

TO REPEAT, THIS IS NOT A CASE OF A HELPLESS MAN WHO WAS GIVEN NO
OPPORTUNITY TO PARTICIPATE IN THE SETTLEMENT OF THE RECORD.  HE DID
PARTICIPATE IN A REAL, VIVID SENSE OF THE TERM.  A LAWYER WHO ENTERED
THE CASE BY APPOINTMENT AT THIS STAGE WOULD BE UTTERLY HELPLESS, FOR HE
WOULD HAVE NO IDEA WHAT WENT ON AT THE TRIAL.  WHEN IT CAME TO THE
SETTLEMENT OF THE RECORD, CALIFORNIA DID ALL THAT REASONABLY COULD BE
REQUIRED BY SENDING THE RECONSTRUCTED RECORD TO CHESSMAN FOR
CRITICISM.  HIS SPECIFIC CRITICISMS WERE OFTEN ACCEPTED.  (FN3)  HIS
GENERAL CRITICISMS WERE NOT.  (FN4)  SINCE IT WAS IN HIS POWER TO MAKE
THE GENERAL CRITICISMS SPECIFIC, HE WAS GIVEN THAT OPPORTUNITY WHICH
DUE PROCESS OF LAW REQUIRES.  YET HE DECLINED OVER AND AGAIN TO MAKE
THE GENERAL CRITICISMS SPECIFIC, ASKING ONLY THAT HE BE PRESENT AT THE
HEARING. 

THE HABEAS CORPUS JURISDICTION OF THE FEDERAL COURTS HAS BEEN GREATLY
UNDER FIRE IN RECENT YEARS.  I FOR ONE WOULD HATE TO SEE IT ABOLISHED
OR GREATLY CURTAILED BY CONGRESS.  IT HAS DONE HIGH SERVICE IN THE
ADMINISTRATION OF JUSTICE.  NOT UNCOMMONLY A CASE THAT IS HERE ON
CERTIORARI FROM A STATE COURT PRESENTS ONLY DARKLY OR OBLIQUELY AN
IMPORTANT CONSTITUTIONAL ISSUE.  PERHAPS, AS IN MASSEY V. MOORE, 348
U.S. 105, THE ISSUE COULD NOT BE RAISED AT THE TRIAL.  PERHAPS THE
TRIAL LAWYER FAILED TO PRESENT IT CLEARLY.  PERHAPS ONLY AFTER THE
TRIAL WERE THE FULL FACTS KNOWN.  PERHAPS THE ISSUE WAS POORLY FOCUSED
IN THE TRIAL COURT'S CHARGE.  ON HABEAS CORPUS THE FACTS CAN BE FULLY
DEVELOPED; AND PERHAPS ONLY THEN CAN THE BASIC CONSTITUTIONAL DEFECT BE
LAID BARE.  SUCH, FOR EXAMPLE, WAS THE SITUATION IN MOORE V. DEMPSEY,
261 U.S. 86; WADE V. MAYO, 334 U.S. 672; AND LEYRA V. DENNO, 347 U.S.
556, WHERE MISCARRIAGES OF JUSTICE WERE PREVENTED ONLY THROUGH THE WRIT
OF HABEAS CORPUS.  AND SEE POLLAK, PROPOSALS TO CURTAIL FEDERAL HABEAS
CORPUS FOR STATE PRISONERS:  COLLATERAL ATTACK ON THE GREAT WRIT,  66
YALE L.J. 50. 

BUT THE FRAGILE GROUNDS UPON WHICH THE PRESENT DECISION RESTS
JEOPARDIZE THE ANCIENT WRIT FOR USE BY FEDERAL COURTS IN STATE
PROSECUTIONS.  THE PRESENT DECISION STATES IN THEORY THE IDEAL OF DUE
PROCESS.  BUT THE FACTS OF THIS CASE CRY OUT AGAINST ITS APPLICATION
HERE.  CHESSMAN HAS RECEIVED DUE PROCESS OVER AND AGAIN.  HE HAS HAD
REPEATED REVIEWS OF EVERY POINT IN HIS CASE.  THE QUESTION OF THE
ADEQUACY OF THE RECONSTRUCTED RECORD HAS BEEN HERE SEVEN TIMES.  THE
QUESTION OF CHESSMAN'S RIGHT TO PARTICIPATE IN THE SETTLEMENT
PROCEEDINGS HAS BEEN HERE AT LEAST FOUR TIMES.  (FN5)  NOT ONCE BEFORE
NOW DID A SINGLE JUSTICE VOTE TO GRANT CERTIORARI ON THAT ISSUE.  IF
THE FAILURE TO LET CHESSMAN, OR A LAWYER ACTING FOR HIM, PARTICIPATE IN
THE HEARING ON THE SETTLEMENT OF THE RECORD WENT TO JURISDICTION (FN6)
(AS IT MUST FOR HABEAS CORPUS TO ISSUE), THEN WE SHOULD HAVE GRANTED
CERTIORARI WHEN THE SUPREME COURT OF CALIFORNIA FIRST HELD IN PEOPLE V.
CHESSMAN, 35 CAL. 2D 455, 218 P.2D 769, THAT THE RECONSTRUCTED RECORD
WAS A PROPER RECORD FOR APPEAL.  THAT DECISION OF THE CALIFORNIA
SUPREME COURT WAS ANNOUNCED MAY 19, 1950.  WE DENIED CERTIORARI ON
OCTOBER 9, 1950.  CHESSMAN V. CALIFORNIA, 340 U.S. 840.  NEARLY SEVEN
YEARS LATER WE RETURN TO PRECISELY THE SAME ISSUE AND NOT ONLY GRANT
CERTIORARI BUT ORDER RELIEF BY WAY OF HABEAS CORPUS. 

ON CHESSMAN'S FIRST APPEAL, JUSTICE CARTER AND JUSTICE EDMONDS
DISSENTED FROM THE DECISION OF THE CALIFORNIA SUPREME COURT, STATING
THAT IN THEIR VIEW THE NECESSITY TO USE A RECONSTRUCTED RECORD IN A
CAPITAL CASE REQUIRED A NEW TRIAL.  35 CAL. 2D 455, 468-473, 218 P.2D
769, 776-780.  THAT VIEW TO ME MAKES SENSE AS A MATTER OF STATE LAW. 
BUT THE COURT TODAY MAKES NO SUCH RULING.  TO ORDER, AFTER THIS LONG
DELAY, A NEW RECORD SEEMS TO ME A FUTILITY.  IT MUST BE REMEMBERED THAT
CHESSMAN WAS CONVICTED ON MAY 21, 1948 - OVER NINE YEARS AGO.  IT IS
DIFFICULT TO SEE HOW, AFTER THAT LONG LAPSE OF TIME, THE MEMORY OF ANY
PARTICIPANT (IF HE IS STILL ALIVE) WOULD BE SHARP ENOUGH TO MAKE ANY
HEARING MEANINGFUL.  WE MEDDLE MISCHIEVOUSLY WITH THE LAW WHEN WE ISSUE
THE WRIT TODAY.  WE DO NOT ACT TO REMEDY ANY INJUSTICE THAT HAS BEEN
DEMONSTRATED.  WHEN THE WHOLE HISTORY OF THE CASE IS CONSIDERED, WE
SEIZE UPON A TECHNICALITY TO UNDO WHAT HAS BEEN REPEATEDLY SUSTAINED
BOTH BY THE CALIFORNIA SUPREME COURT AND BY THIS COURT.  I WOULD GUARD
THE ANCIENT WRIT JEALOUSLY, USING IT ONLY TO PREVENT A GROSS
MISCARRIAGE OF JUSTICE. 

FN1  SEE THE APPENDIX TO THIS OPINION, POST, P. 173. 

FN2  THESE INCLUDE MANY THAT RELATE TO THE CRIME OF BURGLARY, OF
WHICH HE WAS ACQUITTED. 

FN3  THE TRIAL JUDGE RESOLVED DOUBTS IN FAVOR OF THE DEFENDANT.  THUS
HE RULED "THE AMENDMENT  ...  IS ORDERED AS SUGGESTED BY THE APPELLANT,
NOT BECAUSE THE COURT HAS ANY RECOLLECTION OF THAT BUT TO GIVE THE
APPELLANT THE BENEFIT OF THE DOUBT IN THE MATTER." 

FN4  A TYPICAL RULING BY THE TRIAL COURT ON A GENERAL OBJECTION IS AS
FOLLOWS: 

"GOING OVER THEN TO PAGE 1048, LINES 4 TO 10, DEFENDANT MAKES NO
SUGGESTION AS TO WHAT OUGHT TO GO IN THERE.  A CHECK WITH THE SHORTHAND
NOTES INDICATES THAT THE TRANSCRIPTION IS CORRECT.  THE OBJECTION IS
OVERRULED." 

OCCASIONALLY THE TRIAL JUDGE RULED AS FOLLOWS ON AN OBJECTION THAT
WAS CAST IN GENERAL TERMS: 

"PAGE 866, NOTHING BEING POINTED OUT WHICH WOULD BE ANY ASSISTANCE TO
THE COURT IN AMENDING THE TRANSCRIPT, THE AMENDMENT IS DISALLOWED. 
HOWEVER, THIS AGAIN HAPPENS TO BE ONE OF THOSE INSTANCES IN WHICH THE
TESTIMONY AND THE MANNER IN WHICH IT WAS GIVEN IMPRESSED THEMSELVES
STRONGLY ON MY MIND, AND I AM QUITE SATISFIED THAT THAT IS A VERBATIM
TRANSCRIPTION OF THAT PORTION OF THE TESTIMONY AND IS NOT INACCURATE AS
ASSERTED." 

FN5  SEE THE APPENDIX TO THIS OPINION, POST, P. 173. 

FN6  SEE JOHNSON V. ZERBST, 304 U.S. 458. 

APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. 

BEFORE HIS APPEAL WAS HEARD BY THE CALIFORNIA SUPREME COURT, CHESSMAN
MOVED IN THAT COURT FOR ORDERS AUGMENTING AND CORRECTING THE RECORD,
AND FOR A DISMISSAL OF HIS AUTOMATIC APPEAL.  ON MAY 19, 1950, THE
CALIFORNIA SUPREME COURT GRANTED THE MOTION FOR AUGMENTATION OF THE
RECORD, INSOFAR AS IT SOUGHT TO HAVE ADDED TO THE TRANSCRIPT THE VOIR
DIRE EXAMINATION OF JURORS AND THE PROSECUTOR'S OPENING STATEMENT. 
FURTHER RELIEF WAS DENIED.  PEOPLE V. CHESSMAN, 35 CAL. 2D 455, 218
P.2D 769.  ON JUNE 12, 1950, THAT COURT DENIED A PETITION FOR A WRIT OF
HABEAS CORPUS WITHOUT HEARING OR OPINION.  CHESSMAN'S PETITION FOR A
WRIT OF CERTIORARI TO REVIEW THAT DECISION WAS FILED IN THIS COURT ON
JULY 31, 1950.  NO. 98, MISC., 1950 TERM.  IN THE PETITION, CHESSMAN
URGED THAT HE HAD BEEN DENIED DUE PROCESS BECAUSE HE WAS NOT PRESENT AT
THE HEARING IN WHICH THE TRIAL JUDGE CONSIDERED OBJECTIONS TO THE
TRANSCRIPT.  CERTIORARI WAS DENIED ON OCTOBER 9, 1950.  CHESSMAN V.
CALIFORNIA, 340 U.S. 840. 

CHESSMAN THEN PETITIONED THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA FOR A WRIT OF HABEAS CORPUS AND
EQUITABLE RELIEF.  ON DECEMBER 4, 1950, THE DISTRICT COURT DISCHARGED
ITS ORDER TO SHOW CAUSE AND DISMISSED THE PETITION.  ON DECEMBER 27,
1950, THE DISTRICT COURT DENIED CHESSMAN LEAVE TO APPEAL IN FORMA
PAUPERIS, AND, ON JANUARY 9, 1951, DENIED A CERTIFICATE OF PROBABLE
CAUSE.  ON FEBRUARY 27, 1951, THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT DENIED A PETITION FOR A CERTIFICATE OF PROBABLE CAUSE
AND FOR LEAVE TO APPEAL IN FORMA PAUPERIS.  ON APRIL 2, 1951, CHESSMAN
PETITIONED FOR A WRIT OF CERTIORARI TO REVIEW THAT DECISION OF THE
COURT OF APPEALS, AND FOR LEAVE TO FILE A PETITION FOR HABEAS CORPUS. 
NO. 442, MISC., 1950 TERM.  IN THIS COURT, CHESSMAN CONTENDED THAT THE
STATE COURT SHOULD BE ENJOINED FROM DECIDING HIS PENDING APPEAL UNTIL
IT GRANTED HIM A FULL HEARING ON THE QUESTION OF THE ADEQUACY OF THE
RECORD.  CERTIORARI AND THE MOTION FOR LEAVE TO FILE PETITION FOR WRIT
OF HABEAS CORPUS WERE DENIED ON MAY 14, 1951.  CHESSMAN V. CALIFORNIA,
341 U.S. 929. 

THE CALIFORNIA SUPREME COURT AFFIRMED CHESSMAN'S CONVICTION ON
DECEMBER 18, 1951.  PEOPLE V. CHESSMAN, 38 CAL. 2D 166, 238 P.2D 1001. 
CHESSMAN FILED A PETITION FOR A WRIT OF CERTIORARI ON FEBRUARY 20,
1952.  NO. 371, MISC., 1951 TERM.  IN THIS COURT, HE CLAIMED THAT HE
HAD BEEN DENIED DUE PROCESS BECAUSE OF THE MANNER IN WHICH THE RECORD
WAS PREPARED AND PARTICULARLY BECAUSE HE HAD BEEN DENIED AN OPPORTUNITY
TO PROVE HIS FACTUAL CONTENTIONS AS TO THE INACCURACY OF THE
TRANSCRIPT.  IT WAS ALSO CONTENDED THAT HE HAD BEEN DENIED THE
OPPORTUNITY TO PREPARE FOR TRIAL, THAT THE CONFESSION INTRODUCED
AGAINST HIM WAS COERCED, THAT THE PROSECUTION HAD UNFAIRLY PRESENTED
ITS CASE, THAT HIS DEFENSE HAD BEEN UNREASONABLY HAMPERED AT THE TRIAL,
AND THAT THE STATUTE UNDER WHICH HE WAS SENTENCED TO DEATH WAS
UNCONSTITUTIONAL.  CERTIORARI WAS DENIED ON MARCH 31, 1952.  CHESSMAN
V. CALIFORNIA, 343 U.S. 915.  REHEARING WAS DENIED ON APRIL 28, 1952. 
343 U.S. 937. 

ON MAY 19, 1952, CHESSMAN FILED A PETITION FOR WRIT OF HABEAS CORPUS
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA.  THE DISTRICT COURT DENIED THE PETITION WITHOUT HEARING ON
JUNE 9, 1952.  THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMED THAT DECISION ON MAY 28, 1953.  CHESSMAN V. PEOPLE, 205 F.2D
128.  PETITION FOR A WRIT OF CERTIORARI WAS FILED NOVEMBER 9, 1953. 
NO. 239, MISC., 1953 TERM.  HERE, CHESSMAN CONTENDED THAT HE WAS
ENTITLED TO A HEARING ON HIS CONTENTIONS IN THE COURTS BELOW THAT HE
WAS FORCED TO GO TO TRIAL UNPREPARED, THAT COERCED CONFESSIONS HAD BEEN
INTRODUCED INTO EVIDENCE AGAINST HIM, THAT THE PROSECUTION AND JUDGE
WERE GUILTY OF MISCONDUCT.  IT WAS ALLEGED THAT SOME OF THESE MATTERS
COULD NOT HAVE BEEN PROPERLY DETERMINED BY THE CALIFORNIA SUPREME COURT
BECAUSE OF INADEQUACIES IN THE RECORD, WHICH, IT WAS ALLEGED, HAD BEEN
FRAUDULENTLY PREPARED WITHOUT GIVING HIM THE OPPORTUNITY TO PROVE THE
INACCURACY OR FRAUD.  CERTIORARI WAS DENIED ON DECEMBER 14, 1953. 
CHESSMAN V. CALIFORNIA, 346 U.S. 916.  REHEARING WAS DENIED ON FEBRUARY
1, 1954.  347 U.S. 908. 

ON JULY 16, 1954, CHESSMAN FILED A PETITION FOR A WRIT OF HABEAS
CORPUS IN THE SUPREME COURT OF CALIFORNIA.  THAT PETITION WAS DENIED
JULY 21, 1954, WITHOUT WRITTEN OPINION.  (COLLATERAL PROCEEDINGS ARE:
IN RE CHESSMAN, 43 CAL. 2D 296, 273 P.2D 263; IN RE CHESSMAN, 43 CAL.
2D 391, 274 P.2D 645; IN RE CHESSMAN, 43 CAL. 2D 408, 274 P.2D 645,
655.)  CHESSMAN'S PETITION FOR A WRIT OF CERTIORARI WAS FILED AUGUST
14, 1954.  NO. 285, 1954 TERM.  HE CONTENDED THAT THE TRIAL TRANSCRIPT
HAD BEEN FRAUDULENTLY PREPARED BY THE PROSECUTOR, REPORTER AND TRIAL
JUDGE.  ON OCTOBER 25, 1954, CERTIORARI WAS DENIED "WITHOUT PREJUDICE
TO AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN AN APPROPRIATE UNITED
STATES DISTRICT COURT."  CHESSMAN V. CALIFORNIA, 348 U.S. 864. 

CHESSMAN APPLIED TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DIVISION OF CALIFORNIA FOR A WRIT OF HABEAS CORPUS ON DECEMBER 30,
1954.  THE DISTRICT COURT DISMISSED THE PETITION WITHOUT A HEARING ON
JANUARY 4, 1955.  IN RE CHESSMAN, 128 F. SUPP.  600.  ON JANUARY 11,
1955, CHIEF JUDGE DENMAN OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT
GRANTED A CERTIFICATE OF PROBABLE CAUSE FOR APPEAL.  APPLICATION OF
CHESSMAN, 219 F.2D 162.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT,
SITTING EN BANC, ON APRIL 7, 1955, AFFIRMED THE DISTRICT COURT
DECISION.  CHESSMAN V. TEETS, 221 F.2D 276.  PETITION FOR A WRIT OF
CERTIORARI WAS FILED JUNE 30, 1955.  NO. 196, 1955 TERM.  IT WAS
ALLEGED THAT PREJUDICIAL STATEMENTS OF THE TRIAL JUDGE AT THE TRIAL HAD
BEEN DELETED FROM THE TRANSCRIPT AS A RESULT OF A FRAUDULENT CONSPIRACY
BETWEEN THE PROSECUTING ATTORNEY AND THE COURT REPORTER.  IT WAS ALSO
ALLEGED THAT CHESSMAN'S RIGHT TO BE PRESENT AT THE "VITAL STAGE OF THE
PROCEEDINGS" TO SETTLE THE RECORD HAD BEEN "SUMMARILY IGNORED."  ON
OCTOBER 17, 1955, CERTIORARI WAS GRANTED, THE JUDGMENT OF THE COURT OF
APPEALS WAS REVERSED, AND THE CASE REMANDED TO THE DISTRICT COURT FOR A
HEARING ON CHESSMAN'S ALLEGATIONS OF FRAUD.  CHESSMAN V. TEETS, 350
U.S. 3. 

HEARINGS WERE ORDERED IN THE DISTRICT COURT, COMMENCING JANUARY 9,
1956.  HEARINGS WERE COMMENCED ON JANUARY 16, AFTER CHESSMAN WAS
GRANTED TWO CONTINUANCES.  THE HEARING LASTED 7 DAYS.  FINDING THAT
THERE HAD BEEN NO FRAUD, AND THAT THE TRIAL JUDGE'S STATEMENTS AND
INSTRUCTIONS TO THE JURY HAD BEEN ACCURATELY REPORTED, THE DISTRICT
COURT DISCHARGED THE WRIT ON JANUARY 31, 1956.  CHESSMAN V. TEETS, 138
F. SUPP. 761.  THE COURT OF APPEALS AFFIRMED ON OCTOBER 18, 1956. 
CHESSMAN V. TEETS, 239 F.2D 205.  REHEARING WAS DENIED ON NOVEMBER 20,
1956.  CHESSMAN'S SEVENTH PETITION FOR A WRIT OF CERTIORARI WAS FILED
ON FEBRUARY 1, 1957.  NO. 566, MISC., 1956 TERM.*  WE GRANTED
CERTIORARI, LIMITING IT TO THE QUESTION WHETHER CHESSMAN'S FAILURE TO
BE REPRESENTED IN PERSON OR BY COUNSEL AT THE SETTLEMENT PROCEEDINGS
DEPRIVED HIM OF DUE PROCESS OF LAW, THUS EXCLUDING REVIEW ON THE ISSUE
OF FRAUD.  SEE 353 U.S. 928. 

*OTHER REPORTED PROCEEDINGS IN CONNECTION WITH CHESSMAN'S CASE ARE AS
FOLLOWS:  PEOPLE V. SUPERIOR COURT AND IN RE CHESSMAN, 273 P.2D 936
(CAL. DIST. CT. OF APP. 1954); IN RE CHESSMAN AND PEOPLE V. SUPERIOR
COURT, 44 CAL. 2D 1, 279 P.2D 24 (1955).  AND SEE THE OPINION OF JUDGE
HAMLEY, BELOW.  239 F.2D 209-210, N. 2. 
..END :
















PAN-ATLANTIC STEAMSHIP CORP. V. ATLANTIC COAST LINE RAILROAD CO. 353
U.S. 436 


NO. 408.  ARGUED APRIL 23, 1957 - DECIDED JUNE 3, 1957 - 144 F. SUPP.
53, REVERSED. 


COMMISSION TO GRANT "TEMPORARY AUTHORITY" TO OPERATE AS A COMMON
CARRIER BY WATER WHEN "THERE IS AN IMMEDIATE AND URGENT NEED" FOR THE
SERVICE; BUT IT PROVIDES THAT SUCH TEMPORARY AUTHORITY SHALL NOT BE
VALID FOR MORE THAN 180 DAYS.  SECTION 9(B) OF THE ADMINISTRATIVE
PORCEDURE ACT PROVIDES THAT, "IN ANY CASE IN WHICH THE LICENSEE HAS, IN
ACCORDANCE WITH AGENCY RULES, MADE TIMELY AND SUFFICIENT APPLICATION
FOR A RENEWAL OR A NEW LICENSE, NO LICENSE WITH REFERENCE TO ANY
ACTIVITY OF A CONTINUING NATURE SHALL EXPIRE UNTIL SUCH APPLICATION
SHALL HAVE BEEN FINALLY DETERMINED BY THE AGENCY."  HELD:  WHERE,
PENDING ACTION ON AN APPLICATION FOR PERMANENT AUTHORITY, THE
COMMISSION HAS GRANTED TEMPORARY AUTHORITY TO OPERATE AS A COMMON
CARRIER BY WATER FOR A PERIOD OF 180 DAYS, COVERING ACTIVITIES OF A
CONTINUING NATURE, AND TIMELY AND SUFFICIENT APPLICATION FOR AN
EXTENSION OF SUCH AUTHORITY HAS BEEN MADE, THE COMMISSION, UNDER SEC.
9(B) OF THE ADMINISTRATIVE PROCEDURE ACT, MAY EXTEND SUCH TEMPORARY
AUTHORITY BEYOND THE ORIGINAL 180-DAY PERIOD, BUT NOT BEYOND THE TIME
WHEN THE APPLICATION FOR PERMANENT AUTHORITY HAS BEEN FINALLY
DETERMINED.  PP. 437-440. 

PAN-ATLANTIC STEAMSHIP CORP. V. ATLANTIC COAST LINE RAILROAD CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS.* 

*TOGETHER WITH NO. 424, INTERSTATE COMMERCE COMMISSION V. ATLANTIC
COAST LINE RAILROAD CO. ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

GIVES THE COMMISSION POWER TO GRANT "TEMPORARY AUTHORITY" TO A COMMON
CARRIER BY WATER OR A CONTRACT CARRIER BY WATER TO INSTITUTE SERVICE
FOR WHICH "THERE IS AN IMMEDIATE AND URGENT NEED."  AND THE SECTION
PROVIDES THAT THE TEMPORARY AUTHORITY "SHALL BE VALID FOR SUCH TIME AS
THE COMMISSION SHALL SPECIFY, BUT NOT FOR MORE THAN AN AGGREGATE OF ONE
HUNDRED AND EIGHTY DAYS." 

1008(B), PROVIDES THAT "IN ANY CASE IN WHICH THE LICENSEE HAS, IN
ACCORDANCE WITH AGENCY RULES, MADE TIMELY AND SUFFICIENT APPLICATION
FOR A RENEWAL OR A NEW LICENSE, NO LICENSE WITH REFERENCE TO ANY
ACTIVITY OF A CONTINUING NATURE SHALL EXPIRE UNTIL SUCH APPLICATION
SHALL HAVE BEEN FINALLY DETERMINED BY THE AGENCY." 

THE QUESTION IN THE CASE IS WHETHER THIS PROVISION OF THE
ADMINISTRATIVE PROCEDURE ACT AUTHORIZES THE COMMISSION TO EXTEND A
TEMPORARY AUTHORITY GRANTED UNDER SEC. 311(A) OF THE INTERSTATE
COMMERCE ACT FOR MORE THAN 180 DAYS. 

ON MAY 5, 1955, PAN-ATLANTIC FILED WITH THE COMMISSION AN APPLICATION
FOR A PERMANENT CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY AS A
COMMON CARRIER BY WATER.  THE COMMISSION, UPON FINDING AN IMMEDIATE AND
URGENT NEED FOR THE SERVICE, ISSUED ON MAY 18, 1955, TO PAN-ATLANTIC
TEMPORARY AUTHORITY TO OPERATE AS A COMMON CARRIER BY WATER BETWEEN
VARIOUS PORTS OF THE UNITED STATES FOR A PERIOD OF 180 DAYS.  THE
COMMISSION DID NOT CONCLUDE THE PROCEEDINGS ON THE APPLICATION BEFORE
THE EXPIRATION OF THE 180-DAY PERIOD.  ACCORDINGLY, PRIOR TO THE
EXPIRATION OF THE 180-DAY PERIOD AND ON APPLICATION BY PAN-ATLANTIC, IT
AUTHORIZED PAN-ATLANTIC TO CONTINUE TO PERFORM THE WATER CARRIER
SERVICE AUTHORIZED BY THE TEMPORARY AUTHORITY UNTIL FURTHER ORDER OF
THE COMMISSION, BUT NOT BEYOND THE TIME THE APPLICATION FOR A PERMANENT
CERTIFICATE HAD BEEN FINALLY DETERMINED.  THE APPELLEES, WHO ARE SEVEN
RAILROADS, OPPOSED THIS EXTENSION BEFORE THE COMMISSION AND THEN
INSTITUTED THIS SUIT IN THE DISTRICT COURT TO VACATE THE COMMISSION'S
ORDER WHICH AUTHORIZED THE CONTINUANCE OF THE TEMPORARY AUTHORITY
BEYOND THE 180-DAY PERIOD. 

THE DISTRICT COURT HELD FOR THE APPELLEES, 144 F. SUPP. 53, FEELING
BOUND BY THE PRIOR DECISION OF THAT COURT IN STONE'S EXPRESS, INC. V.
UNITED STATES, 122 F. SUPP. 955, (FN1) THOUGH TWO OF THE THREE JUDGES
INDICATED THAT WERE STARE DECISIS NOT TO CONTROL, THEY WOULD SUSTAIN
THE COMMISSION.  144 F. SUPP., AT 54.  THE CASE IS HERE BY APPEAL.  28
U.S.C. SEC. 1253.  WE NOTED PROBABLE JURISDICTION.  352 U.S. 914. 

WE SUSTAIN THE COMMISSION IN ITS ASSERTION OF AUTHORITY TO EXTEND
THIS TEMPORARY AUTHORITY BEYOND 180 DAYS. 

"LICENSE" AS USED IN THE ADMINISTRATIVE PROCEDURE ACT INCLUDES "THE
WHOLE OR PART OF ANY AGENCY PERMIT, CERTIFICATE, APPROVAL,
REGISTRATION, CHARTER, MEMBERSHIP, STATUTORY EXEMPTION OR OTHER FORM OF
PERMISSION."  SEC. 2(E).  A TEMPORARY AUTHORITY GRANTED UNDER SEC.
311(A) OF THE INTERSTATE COMMERCE ACT WOULD SEEM TO BE A "PERMIT" OR
"CERTIFICATE" UNDER THE ADMINISTRATIVE PROCEDURE ACT.  "LICENSEE," AS
USED IN THE SENTENCE OF SEC. 9(B) WHICH WE HAVE QUOTED, WOULD SEEM,
THEREFORE, TO INCLUDE ONE WHO HOLDS A TEMPORARY PERMIT UNDER SEC.
311(A).  IT IS ARGUED THAT "LICENSE" IN THAT SECTION INCLUDES ONLY
THOSE THAT ARE PERMANENT.  BUT WE SEE NO JUSTIFICATION FOR THAT NARROW
READING.  A PERMIT FOR 180 DAYS COVERS AN "ACTIVITY OF A CONTINUING
NATURE." 

THE VARIOUS AGENCIES.  BY ITS TERMS THERE MUST BE A LICENSE
OUTSTANDING; IT MUST COVER ACTIVITIES OF A CONTINUING NATURE; THERE
MUST HAVE BEEN FILED A TIMELY AND SUFFICIENT APPLICATION TO CONTINUE
THE EXISTING OPERATION; AND THE APPLICATION FOR THE NEW OR EXTENDED
LICENSE MUST NOT HAVE BEEN FINALLY DETERMINED. 

EACH OF THESE CONDITIONS IS SATISFIED IN THE PRESENT CASE; AND WE SEE
NO REASON WHY THE PROVISIONS OF THIS LATER ACT MAY NOT BE INVOKED TO
PROTECT A PERSON WITH A LICENSE FROM THE DAMAGE HE WOULD SUFFER BY
BEING COMPELLED TO DISCONTINUE A BUSINESS OF A CONTINUING NATURE, ONLY
TO START IT ANEW AFTER THE ADMINISTRATIVE HEARING IS CONCLUDED.  THAT
HAS BEEN THE COMMISSION'S CONSISTENT CONSTRUCTION OF THE LAW; (FN2) AND
WE THINK IT IS THE CORRECT ONE.  SECTION 9(B) OF THE ADMINISTRATIVE
PROCEDURE ACT CONTAINS A NEW RULE THAT SUPPLEMENTS THE PRIOR AUTHORITY
GRANTED BY SEC. 311(A) OF THE INTERSTATE COMMERCE ACT.  INITIALLY, THE
COMMISSION CAN DO NO MORE THAN ISSUE A TEMPORARY AUTHORITY GOOD FOR 180
DAYS.  BUT ONCE THE CONDITIONS OF SEC. 9(B) ARE SATISFIED, AN EXTENSION
IN THE INTERESTS OF ECONOMY AND EFFICIENCY IS AUTHORIZED. 

THE COMMISSION ADVISES US THAT THE COMBINED TIME REQUIRED FOR THE
ADMINISTRATIVE PROCEEDINGS ON AN APPLICATION FOR A CERTIFICATE AND FOR
JUDICIAL REVIEW ALMOST INEVITABLY EXCEEDS 180 DAYS.  COURTS HAVE NO
AUTHORITY TO ISSUE THESE PERMITS.  SEE UNITED STATES V. CAROLINA
CARRIERS CORP., 315 U.S. 475, 489-490.  UNLESS THE AUTHORITY IS VESTED
IN THE COMMISSION BY SEC. 9(B), THE OPERATION, NO MATTER HOW ESSENTIAL
OR NECESSARY, MUST BE DISCONTINUED AT THE END OF 180 DAYS.  WE THINK
SUCH A READING OF THE LAW WOULD MUTILATE THE ADMINISTRATIVE SYSTEM
WHICH CONGRESS CREATED BY THE TWO ACTS.  WHERE THE REMEDY FOR AN EVIL
IS CLEAR, THE REMEDIAL PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT
SHOULD BE GIVEN FULL EFFECT.  SEE WONG YANG SUNG V. MCGRATH, 339 U.S.
33, 41.  WE CONCLUDE THAT AN HARMONIOUS READING OF SEC. 311(A) AND SEC.
9(B) REQUIRES THE LATTER TO BE READ AS SUPPLEMENTING THE FORMER AND TO
BE CONSTRUED AS APPLYING TO TEMPORARY AS WELL AS TO PERMANENT
LICENSES.  REVERSED. 

FN1  THAT CASE BECAME MOOT AFTER PROBABLE JURISDICTION HAD BEEN NOTED
BY THIS COURT.  SEE 350 U.S. 906. 

FN2  SEE 13 FED. REG. 4150 FOR THE RULES OF THE COMMISSION GOVERNING
THESE EXTENSIONS. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER
JOIN, DISSENTING. 

A MAJOR PURPOSE OF THE INTERSTATE COMMERCE ACT IS TO PREVENT EVILS
DEEMED TO RESULT FROM EASE OF ENTRY AND OVERCOMPETITION IN THE
TRANSPORTATION INDUSTRY.  AMERICAN TRUCKING ASSNS., INC., V. UNITED
STATES, 344 U.S. 298, 312-313.  ACCORDINGLY, THE ACT PROHIBITS NEW
CARRIER OPERATIONS EXCEPT AFTER NOTICE TO AFFECTED PARTIES, AN
EVIDENTIARY HEARING, ADMINISTRATIVE FINDINGS AS TO THE PUBLIC
CONVENIENCE AND NECESSITY OF THE PROPOSED SERVICE, AND COURT REVIEW OF
THE ADMINISTRATIVE DETERMINATION.  SEE 49 U.S.C. SECS. 306-308, 309. 
(APPLYING TO WATER CARRIERS) OF THE ACT ARE NARROW EXCEPTIONS TO THIS
FUNDAMENTAL POLICY.  THEY PERMIT THE INTERSTATE COMMERCE COMMISSION,
"IN ITS DISCRETION AND WITHOUT HEARINGS OR OTHER PROCEEDINGS," TO GRANT
TEMPORARY AUTHORITY FOR CARRIER SERVICE FOR WHICH THERE IS "AN
IMMEDIATE AND URGENT NEED" AND WITHIN TERRITORY HAVING NO CARRIER
SERVICE "CAPABLE OF MEETING SUCH NEED."  ANY GRANT OF TEMPORARY
AUTHORITY IS EXPRESSLY MADE SUBJECT TO AN UNCONDITIONAL MAXIMUM TIME
LIMIT OF 180 DAYS. 

"SUCH TEMPORARY AUTHORITY SHALL BE VALID FOR SUCH TIME AS THE
COMMISSION SHALL SPECIFY, BUT FOR NOT MORE THAN AN AGGREGATE OF ONE
HUNDRED AND EIGHTY DAYS, AND SHALL CREATE NO PRESUMPTION THAT
CORRESPONDING PERMANENT AUTHORITY WILL BE GRANTED THEREAFTER."  49
U.S.C.  SEC. 911(A).  SEE ALSO, SEC. 310AA). 

CONGRESS WAS CONCERNED WITH SITUATIONS IN WHICH TEMPORARY AUTHORITY
MIGHT BE NEEDED ON AN EMERGENCY BASIS TO MEET SPECIFIC TRANSPORTATION
PROBLEMS.  HOWEVER, IT PLAINLY WAS AWARE THAT THE OVER-ALL PURPOSE OF
THE ACT WOULD BE JEOPARDIZED UNLESS THE COMMISSION'S POWER TO AUTHORIZE
TEMPORARY CARRIER OPERATIONS WAS SEVERELY LIMITED.  THE INTENT OF
CONGRESS WAS UNMISTAKABLE.  IN RECOMMENDING THE ENACTMENT OF SEC.
210AA), THE INTERSTATE COMMERCE COMMISSION ITSELF SAID: 

"CASES ARISE, AND HAVE BEEN BROUGHT TO OUR ATTENTION, WHERE URGENT
NEED FOR INTERSTATE MOTOR CARRIER SERVICE SUDDENLY DEVELOPS.  THE
BRINGING IN OF OIL WELLS IN A NEW FIELD AND CONDITIONS CREATED BY A
FLOOD OR OTHER CALAMITOUS VISITATION ARE GOOD EXAMPLES, AND THERE ARE
OTHERS. 

"WE BELIEVE THAT THE COMMISSION SHOULD HAVE POWER TO MEET SUCH
EMERGENCIES BY A GRANT OF TEMPORARY OPERATING AUTHORITY, IN ITS
DISCRETION AND WITHOUT HEARINGS OR OTHER PROCEEDINGS.  IT IS RECOGNIZED
THAT CARE WOULD BE NECESSARY TO PROTECT THE LEGITIMATE INTERESTS OF
OTHER CARRIERS  ...  .  THE AUTHORITY GRANTED WOULD BE STRICTLY LIMITED
IN TIME BY THE TERMS OF THE PROPOSED AMENDMENT."  S. DOC. NO. 154, 75TH
CONG., 3D SESS. 2-3. 

"CONGRESS REALIZED THAT IN MANY OF THE SITUATIONS QUALIFYING FOR
TEMPORARY AUTHORITY UNDER SECS. 210AA) AND 311(A) PERMANENT AUTHORITY
MIGHT LATER BE REQUIRED.  THE "BRINGING IN OF OIL WELLS IN A NEW
FIELD," AS WELL AS OTHER SITUATIONS, MIGHT REQUIRE THE GRANTING OF
PERMANENT AUTHORITY FOLLOWING THE HEARING REQUIRED BY THE ACT.  IN SUCH
SITUATIONS, SECS.  210AA) AND 311(A) OPERATED AS AN INCENTIVE TO THE
COMMISSION TO REACH ITS FINAL DECISION WITH RESPECT TO THE GRANTING OF
PERMANENT AUTHORITY WITHIN 180 DAYS. 

THUS, TWO POLICIES UNDERLIE SECS. 210AA) AND 311(A):  (1) PROVIDING
THE COMMISSION WITH DISCRETIONARY POWER TO HANDLE EMERGENCY SITUATIONS
BY GRANTING A SEVERELY LIMITED TEMPORARY AUTHORITY; AND (2) PRODDING
THE COMMISSION TO FINISH, WITHIN 180 DAYS, ITS DETERMINATION WITH
RESPECT TO THE GRANTING OF PERMANENT AUTHORITY FOR THIS SERVICE.  THE
COURT, BY NOW HOLDING THAT SEC. 9(B) OF THE ADMINISTRATIVE PROCEDURE
ACT, 60 STAT. 242-243, 5 U.S.C.  SEC. 1008, AUTHORIZES THE COMMISSION
TO EXTEND A TEMPORARY AUTHORITY FOR MORE THAN 180 DAYS, ELIMINATES THE
SECOND POLICY AND MAKES THE 180-DAY LIMITATION MEANINGLESS.  I DO NOT
BELIEVE THAT CONGRESS INTENDED SEC. 9(B) OF THE ADMINISTRATIVE
PROCEDURE ACT TO ACCOMPLISH THIS RESULT. 

THE ADMINISTRATIVE PROCEDURE ACT, ENACTED IN 1946, WAS DESIGNED TO
PROMOTE GENERAL FAIRNESS AND REGULARITY IN ADMINISTRATIVE ACTION. 
AGENCIES TO ACT ON LICENSE APPLICATIONS WITH REASONABLE DISPATCH AND
"WITH DUE REGARD TO THE RIGHTS OR PRIVILEGES OF ALL THE INTERESTED
PARTIES OR ADVERSELY AFFECTED PERSONS."  IT ALSO PROTECTS PERSONS WHO
HAVE RECEIVED LICENSES FROM THEIR SUMMARY REVOCATION, AND FROM THE
HARDSHIPS OCCASIONED BY EXPIRATION OF A LICENSE BEFORE THE LICENSING
AGENCY HAS BEEN ABLE TO PASS UPON ITS RENEWAL.  (FN3)  IT MAKES NO
REFERENCE TO EMERGENCY PERMITS RESTRICTED TO A SPECIFIC NUMBER OF
DAYS. 

THE THIRD SENTENCE OF SEC. 9(B) MERELY PROVIDES THAT IF A LICENSEE
HAS MADE TIMELY APPLICATION FOR "A RENEWAL OR A NEW LICENSE, NO LICENSE
WITH REFERENCE TO ANY ACTIVITY OF A CONTINUING NATURE" SHALL EXPIRE
PRIOR TO FINAL ADMINISTRATIVE ACTION ON SUCH APPLICATION.  THE WORD
"RENEWAL" OBVIOUSLY RELATES TO THE LICENSE ALREADY HELD AND IS
INAPPLICABLE HERE.  THE LEGISLATIVE HISTORY INDICATES THAT THE OTHER
WORDS WHICH MIGHT APPLY, "NEW LICENSE," REFER TO A NEW LICENSE OF THE
SAME TYPE OR CLASS AS THAT ALREADY HELD.  (FN4) 

IN THIS CASE, THE EXPIRATION OF APPELLANT PAN-ATLANTIC'S 180-DAY
TEMPORARY AUTHORITY, ISSUED TO COVER AN EMERGENCY SITUATION WHILE ITS
APPLICATION FOR PERMANENT AUTHORITY IS PENDING, DOES NOT COME WITHIN
THE TERMS OF SEC. 9(B) SINCE THE PERMANENT LICENSE SOUGHT IS NOT OF THE
SAME TYPE AND CLASS AS THE OLD LICENSE.  THE COURT'S CONTRARY
CONCLUSION CAN BE REACHED ONLY BY READING THE WORD "LICENSE" AS USED IN
THE THIRD SENTENCE OF SEC. 9(B) IN TWO DIFFERENT SENSES - FIRST, AS
REFERRING TO A TEMPORARY LICENSE, AND, SECOND, AS REFERRING TO A
PERMANENT LICENSE.  THE IMPROBABILITY OF THIS INTERPRETATION IS
EMPHASIZED BY POLICY CONSIDERATIONS STEMMING FROM BOTH THE
ADMINISTRATIVE PROCEDURE ACT AND THE INTERSTATE COMMERCE ACT. 

THE POLICY BEHIND THE THIRD SENTENCE OF SEC. 9(B) IS THAT OF
PROTECTING THOSE PERSONS WHO ALREADY HAVE REGULARLY ISSUED LICENSES
FROM THE SERIOUS HARDSHIPS OCCASIONED BOTH TO THEM AND TO THE PUBLIC BY
EXPIRATION OF A LICENSE BEFORE THE AGENCY FINDS TIME TO PASS UPON ITS
RENEWAL.  AS THE INITIAL LICENSE WAS OBTAINED AFTER A HEARING AT WHICH
ALL INTERESTED PARTIES HAD AN OPPORTUNITY TO BE HEARD, SEC. 9(B)
OPERATES TO PROTECT VALUABLE EXISTING RIGHTS AND AVOIDS UNNECESSARY
INJURY RESULTING FROM ADMINISTRATIVE DELAY.  SO APPLIED, IT DOES NOT
PREJUDICE THE RIGHTS OF OTHERS SINCE THEY HAD A CHANCE TO BE HEARD ON
THE INITIAL APPLICATION, AND CAN BE HEARD ON THE RENEWAL.  HOWEVER, THE
ISSUANCE OF TEMPORARY AUTHORITY TO PAN-ATLANTIC IN THE INSTANT CASE WAS
DONE EX PARTE IN ORDER TO MEET AN ALLEGED EMERGENCY NEED.  AFFECTED
PARTIES HAD NO OPPORTUNITY TO CONTEST IT.  MOREOVER, PAN-ATLANTIC KNEW
THAT THE LICENSE WAS ISSUED FOR A MAXIMUM PERIOD OF 180 DAYS AND MUST
HAVE ACCEPTED IT ON THAT BASIS.  TO CONVERT SUCH TEMPORARY AND LIMITED
RIGHTS INTO RIGHTS CONTINUING UNTIL THE COMMISSION, WITHOUT ANY TIME
LIMIT ON DOING SO, FINALLY ACTS ON PAN-ATLANTIC'S APPLICATION FOR
PERMANENT AUTHORITY DEPRIVES LICENSED COMPETITORS AND OTHER AFFECTED
PARTIES OF THEIR RIGHTS UNDER THE INTERSTATE COMMERCE ACT, WITHOUT ANY
HEARING ON THE ISSUES INVOLVED.    TEMPORARY AUTHORITIES ARE ISSUED EX
PARTE AND WITHOUT REGARD TO THEIR COMPETITIVE EFFECTS.  YET, IF
PERMITTED TO BE OUTSTANDING FOR PROLONGED PERIODS, THEY MAY PRODUCE
COMPETITIVE CHANGES COMPARABLE TO THOSE PRODUCED BY A GRANT OF
PERMANENT AUTHORITY.  IN THIS CASE, AS IN A HIGH PROPORTION OF THE
INSTANCES IN WHICH THE COMMISSION HAS EXTENDED A TEMPORARY AUTHORITY
BEYOND 180 DAYS, PAN-ATLANTIC'S "TEMPORARY" SERVICE ALREADY HAS BEEN IN
EFFECT FOR MORE THAN TWO YEARS. 

THE INTERSTATE COMMERCE ACT, FOR TESTED REASONS OF PUBLIC POLICY,
PROHIBITS NEW CARRIER OPERATIONS UNLESS THE APPLICANT OBTAINS A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY IN A PROCEEDING IN
WHICH THOSE ADVERSELY AFFECTED HAVE AN OPPORTUNITY TO BE HEARD IN
OPPOSITION.  GRANTS OF TEMPORARY OPERATING AUTHORITY FOR THE MAXIMUM
PERIOD OF 180 DAYS CONSTITUTE A NARROW EXCEPTION TO THESE
REQUIREMENTS.  SECTION 9(B) OF THE ADMINISTRATIVE PROCEDURE ACT SHOULD
NOT BE INTERPRETED AS WIPING OUT THIS TIME LIMITATION WHEN THE RESULT
CONFLICTS WITH A FUNDAMENTAL OBJECTIVE OF THE NATIONAL TRANSPORTATION
POLICY. 

THERE IS A FURTHER INCONGRUITY IF SEC. 9(B) IS INTERPRETED TO APPLY
TO TEMPORARY OPERATING AUTHORITIES ISSUED BY THE INTERSTATE COMMERCE
COMMISSION.  SECTION 9(B) PROVIDES THAT "NO LICENSE ...  SHALL EXPIRE
UNTIL SUCH APPLICATION SHALL HAVE BEEN FINALLY DETERMINED BY THE
AGENCY."  THIS LANGUAGE IS MANDATORY.  ALTHOUGH SECS. 210A AND 311 OF
THE INTERSTATE COMMERCE ACT PLACE THE INITIAL GRANTING OF TEMPORARY
AUTHORITY ENTIRELY IN THE COMMISSION'S DISCRETION, THE COMMISSION WOULD
BE COMPELLED BY SEC. 9(B) TO EXTEND THE TEMPORARY AUTHORITY IN EVERY
CASE INVOLVING ACTIVITY OF A CONTINUING NATURE UNTIL IT FORMALLY
COMPLETES THE PROCEEDING ON THE APPLICATION FOR PERMANENT AUTHORITY. 
THE RESULT IS TO REQUIRE THE COMMISSION TO EXTEND THE TEMPORARY
AUTHORITY EVEN THOUGH, IN A PARTICULAR CASE, IT MIGHT BE CONVINCED THAT
THE TEMPORARY EMERGENCY SERVICE WAS NO LONGER NECESSARY. 

EVEN IF SEC. 9(B) IS INTERPRETED AS EXTENDING TEMPORARY LICENSES
DURING THE PENDENCY OF PERMANENT LICENSE PROCEEDINGS, IT SHOULD NOT BE
APPLIED TO THE TEMPORARY AUTHORITIES ISSUED BY THE INTERSTATE COMMERCE
COMMISSION UNDER SECS. 210A AND 311 OF THE INTERSTATE COMMERCE ACT. 
THOSE SECTIONS ARE SPECIAL STATUTES DEALING IN PRECISE TERMS WITH A
SPECIFIC SUBJECT.  (FN5) 

IN RESPONSE TO THE CLAIM THAT THE COMMISSION'S CONSTRUCTION OF SEC.
9(B) SHOULD BE GIVEN CONSIDERABLE WEIGHT, IT MUST BE NOTED THAT ITS
INTERPRETATION WAS ADOPTED LARGELY AS A MATTER OF EXPEDIENCY RATHER
THAN AS A REASONED INTERPRETATION.  (FN6)  CF. SKIDMORE V. SWIFT & CO.,
323 U.S. 134, 140.  IN ANY EVENT, IT IS THE DUTY OF THE COURT TO
DETERMINE WHETHER, AS A MATTER OF LAW, THE GENERAL PROVISIONS OF SEC.
9(B) OF THE ADMINISTRATIVE PROCEDURE ACT OVERRIDE THE EXPRESS
LIMITATIONS PLACED BY CONGRESS UPON THE COMMISSION BY EARLIER
PROVISIONS OF THE INTERSTATE COMMERCE ACT.  (FN7) 

FOR THESE REASONS, I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT
COURT. 

FN1  52 STAT. 1238, AS AMENDED, 49 U.S.C. SEC. 310AA).  SECTION 210A
WAS ENACTED IN 1938 AS AN AMENDMENT TO THE MOTOR CARRIER ACT OF 1935. 

FN2  54 STAT. 943, AS AMENDED, 49 U.S.C. SEC. 911(A).  SECTION 311
WAS ENACTED IN 1940 AS PART OF THE WATER CARRIER ACT OF THAT YEAR.  IT
IS AN ALMOST EXACT COUNTERPART OF SEC. 210A. 

FN3  SECTION 9(B) OF THE ADMINISTRATIVE PROCEDURE ACT, IN ITS
ENTIRETY, READS AS FOLLOWS: 

"SEC. 9  ...  . 

     *      *         *         *         * 

"(B)  LICENSES.  - IN ANY CASE IN WHICH APPLICATION IS MADE FOR A
LICENSE REQUIRED BY LAW THE AGENCY, WITH DUE REGARD TO THE RIGHTS OR
PRIVILEGES OF ALL THE INTERESTED PARTIES OR ADVERSELY AFFECTED PERSONS
AND WITH REASONABLE DISPATCH, SHALL SET AND COMPLETE ANY PROCEEDINGS
REQUIRED TO BE CONDUCTED PURSUANT TO SECTIONS 7 AND 8 OF THIS ACT OR
OTHER PROCEEDINGS REQUIRED BY LAW AND SHALL MAKE ITS DECISION.  EXCEPT
IN CASES OF WILLFULNESS OR THOSE IN WHICH PUBLIC HEALTH, INTEREST, OR
SAFETY REQUIRES OTHERWISE, NO WITHDRAWAL, SUSPENSION, REVOCATION, OR
ANNULMENT OF ANY LICENSE SHALL BE LAWFUL UNLESS, PRIOR TO THE
INSTITUTION OF AGENCY PROCEEDINGS THEREFOR, FACTS OR CONDUCT WHICH MAY
WARRANT SUCH ACTION SHALL HAVE BEEN CALLED TO THE ATTENTION OF THE
LICENSEE BY THE AGENCY IN WRITING AND THE LICENSEE SHALL HAVE BEEN
ACCORDED OPPORTUNITY TO DEMONSTRATE OR ACHIEVE COMPLIANCE WITH ALL
LAWFUL REQUIREMENTS.  IN ANY CASE IN WHICH THE LICENSEE HAS, IN
ACCORDANCE WITH AGENCY RULES, MADE TIMELY AND SUFFICIENT APPLICATION
FOR A RENEWAL OR A NEW LICENSE, NO LICENSE WITH REFERENCE TO ANY
ACTIVITY OF A CONTINUING NATURE SHALL EXPIRE UNTIL SUCH APPLICATION
SHALL HAVE BEEN FINALLY DETERMINED BY THE AGENCY." 

FN4  THE THIRD SENTENCE OF SEC. 9(B) WAS TAKEN FROM A SIMILAR
PROVISION "CONTAINED IN THE LICENSING PROCEDURE ACT OF THE STATE OF
OHIO (ACT OF JUNE 3, 1943, SEC. 1 AMENDING SECS. 154-167 OF THE GENERAL
CODE; AMENDED SUBSTITUTE SENATE BILL NO. 36)."  LEGISLATIVE HISTORY,
ADMINISTRATIVE PROCEDURE ACT, S. DOC. NO. 248, 79TH CONG., 2D SESS.
35.  THE OHIO STATUTE EXPRESSLY APPLIED ONLY TO "A NEW LICENSE OF THE
SAME TYPE OR CLASS, OR RENEWAL OF AN EXISTING LICENSE  ...  ."  120
OHIO LAWS 1943-1944, ADMINISTRATIVE PROCEDURE ACT, SEC. 154-67.  CF.
STONE'S EXPRESS, INC. V. UNITED STATES, 122 F. SUPP. 955. 

THE WORDS "NEW LICENSE" WERE USED IN ADDITION TO THE WORD "RENEWAL"
BECAUSE SOME FEDERAL AGENCIES ISSUE LICENSES FOR A LIMITED TERM. 
LICENSES FOR OPERATION OF BROADCASTING STATIONS, WHICH CANNOT BE
GRANTED "FOR A LONGER TERM THAN THREE YEARS," ARE AN EXAMPLE.  SEE SEC.
307(D) OF COMMUNICATIONS ACT OF 1934, 48 STAT. 1084, AS AMENDED, 47
U.S.C. SEC. 307(D). 

FN5  REPEALS BY IMPLICATION ARE NOT FAVORED.  UNITED STATES V. BORDEN
CO., 308 U.S. 188, 198-200; UNITED STATES V. JACKSON, 302 U.S. 628,
631.  AN EARLIER SPECIAL STATUTE CONTROLS OVER A LATER GENERAL
STATUTE.  WASHINGTON V. MILLER, 235 U.S. 422, 428; RODGERS V. UNITED
STATES, 185 U.S. 83, 87-88.  FINALLY, SEC. 12 OF THE ADMINISTRATIVE
PROCEDURE ACT, 60 STAT.  244, 5 U.S.C. SEC. 1011, PROVIDES THAT
"NOTHING IN THIS ACT SHALL BE HELD TO  ...  LIMIT OR REPEAL ADDITIONAL
REQUIREMENTS IMPOSED BY STATUTE OR OTHERWISE RECOGNIZED BY LAW." 

FN6  THE PUBLIC ANNOUNCEMENT OF THE COMMISSION'S INTERPRETATION OF
SEC. 9(B), PUBLISHED IN SEPTEMBER 1947, ADMITTED THAT ITS
INTERPRETATION WAS SUBJECT TO QUESTION: 

"THERE IS A DIVERGENCE OF LEGAL OPINION ON THE QUESTION.  SOME OF THE
COMMISSION'S LAWYERS ARE OF THE OPINION THAT AN EXTENSION IS AUTHORIZED
BY SECTION 210AA) OF THE INTERSTATE COMMERCE ACT; OTHERS ARE OF THE
OPINION THAT CONTINUANCES OF SUCH OPERATIONS ARE AUTHORIZED BY SECTION
9(B) OF THE ADMINISTRATIVE PROCEDURE ACT; WHILE OTHERS DOUBT THAT
EITHER SECTION 9(B) OF THE ADMINISTRATIVE PROCEDURE ACT OR SECTION
210AA) OF THE INTERSTATE COMMERCE ACT OR ANY OTHER PROVISION, EITHER
EXTENDS OR AUTHORIZES THE COMMISSION TO EXTEND, THESE TEMPORARY
AUTHORITIES WHERE THEY HAVE BEEN IN EFFECT FOR 180 DAYS  ...  ."  CCH
FED.  CARRIERS REPORTER PARA. 23,040.  IN ADDITION, THE COMMISSION HAS
REQUESTED CONGRESS TO ENACT AMENDMENTS TO THE INTERSTATE COMMERCE ACT
WHICH WOULD BE UNNECESSARY IF SEC. 9(B) OF THE ADMINISTRATIVE PROCEDURE
ACT MEANT WHAT THE COMMISSION SAYS IT DOES.  I.C.C., 61ST ANN. REP.
(1947), 148; I.C.C., 69TH ANN. REP. (1955), 132. 

FN7  NOR CAN THE SOLUTION BE FOUND IN THE FACT THAT THE COMMISSION
HAS EXTENDED ABOUT 19% OF ALL TEMPORARY AUTHORIZATIONS BEYOND 180
DAYS.  IF IN FACT THERE EXISTS "AN IMMEDIATE AND URGENT NEED" FOR
SERVICE WHICH NO OTHER CARRIER IS CAPABLE OF PROVIDING, 180 DAYS IS A
SUFFICIENT TIME FOR FINAL ADMINISTRATIVE DETERMINATION OF THE QUESTION
WHETHER THE SERVICE IS REQUIRED BY PUBLIC CONVENIENCE AND NECESSITY. 
AND EVEN IF IT WERE NOT, THE REMEDY WOULD BE LEGISLATIVE AMENDMENT OF
THE INTERSTATE COMMERCE ACT, NOT ADMINISTRATIVE OR JUDICIAL REVISION. 
..END :
























TEXTILE WORKERS UNION OF AMERICA V. LINCOLN MILLS OF ALABAMA 353 U.S.
448 


NO. 211.  ARGUED MARCH 25, 1957 - DECIDED JUNE 3, 1957 - 230 F.2D 81,
REVERSED. 


A UNION ENTERED INTO A COLLECTIVE-BARGAINING AGREEMENT WITH AN
EMPLOYER PROVIDING THAT THERE WOULD BE NO STRIKES OR WORK STOPPAGES AND
THAT GRIEVANCES WOULD BE HANDLED PURSUANT TO A SPECIFIED PROCEDURE, THE
LAST STEP OF WHICH WAS ARBITRATION.  GRIEVANCES AROSE AND WERE
PROCESSED THROUGH VARIOUS STEPS IN THE GRIEVANCE PROCEDURE UNTIL THE
UNION'S DEMANDS WERE FINALLY DENIED BY THE EMPLOYER.  THE UNION
REQUESTED ARBITRATION, AND THE EMPLOYER REFUSED.  THEREUPON, THE UNION
SUED IN A FEDERAL DISTRICT COURT TO COMPEL ARBITRATION.  HELD: 

1.  UNDER SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947,
THE DISTRICT COURT PROPERLY DECREED SPECIFIC PERFORMANCE OF THE
AGREEMENT TO ARBITRATE THE GRIEVANCE DISPUTE.  PP. 449-456. 

2.  THE SUBSTANTIVE LAW TO BE APPLIED IN SUITS UNDER SEC. 301(A) IS
FEDERAL LAW, WHICH THE COURTS MUST FASHION FROM THE POLICY OF OUR
NATIONAL LABOR LAWS.  PP. 456-457. 

3.  AS HERE CONSTRUED, SEC. 301(A) IS CONSTITUTIONAL.  P. 457. 

4.  JURISDICTION TO COMPEL ARBITRATION OF GRIEVANCE DISPUTES IS NOT
WITHDRAWN BY THE NORRIS-LAGUARDIA ACT.  PP. 457-459. 

5.  THE EMPLOYER IN THIS CASE HAVING CEASED OPERATIONS AND CONTRACTED
TO SELL ITS MILL PROPERTIES, THE CASE IS MOOT INSOFAR AS THE UNION
SOUGHT RESTORATION OF WORKLOADS AND JOB ASSIGNMENTS; BUT IT IS NOT MOOT
TO THE EXTENT THAT IT SOUGHT A MONETARY AWARD.  P. 459. 

TEXTILE WORKERS UNION OF AMERICA V. LINCOLN MILLS OF ALABAMA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER-UNION ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT IN
1953 WITH RESPONDENT-EMPLOYER, THE AGREEMENT TO RUN ONE YEAR AND FROM
YEAR TO YEAR THEREAFTER, UNLESS TERMINATED ON SPECIFIED NOTICES.  THE
AGREEMENT PROVIDED THAT THERE WOULD BE NO STRIKES OR WORK STOPPAGES AND
THAT GRIEVANCES WOULD BE HANDLED PURSUANT TO A SPECIFIED PROCEDURE. 
THE LAST STEP IN THE GRIEVANCE PROCEDURE - A STEP THAT COULD BE TAKEN
BY EITHER PARTY - WAS ARBITRATION. 

THIS CONTROVERSY INVOLVES SEVERAL GRIEVANCES THAT CONCERN WORK LOADS
AND WORK ASSIGNMENTS.  THE GRIEVANCES WERE PROCESSED THROUGH THE
VARIOUS STEPS IN THE GRIEVANCE PROCEDURE AND WERE FINALLY DENIED BY THE
EMPLOYER.  THE UNION REQUESTED ARBITRATION, AND THE EMPLOYER REFUSED. 
THEREUPON THE UNION BROUGHT THIS SUIT IN THE DISTRICT COURT TO COMPEL
ARBITRATION. 

THE DISTRICT COURT CONCLUDED THAT IT HAD JURISDICTION AND ORDERED THE
EMPLOYER TO COMPLY WITH THE GRIEVANCE ARBITRATION PROVISIONS OF THE
COLLECTIVE BARGAINING AGREEMENT.  THE COURT OF APPEALS REVERSED BY A
DIVIDED VOTE.  230 F.2D 81.  IT HELD THAT, ALTHOUGH THE DISTRICT COURT
HAD JURISDICTION TO ENTERTAIN THE SUIT, THE COURT HAD NO AUTHORITY
FOUNDED EITHER IN FEDERAL OR STATE LAW TO GRANT THE RELIEF.  THE CASE
IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE
OF THE IMPORTANCE OF THE PROBLEM AND THE CONTRARIETY OF VIEWS IN THE
COURTS.  352 U.S. 821. 

THE STARTING POINT OF OUR INQUIRY IS SEC. 301 OF THE LABOR MANAGEMENT
RELATIONS ACT OF 1947, 61 STAT. 156, 29 U.S.C. SEC. 185, WHICH
PROVIDES: 

(A)  "SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THIS CHAPTER, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES." 

(B)  "ANY LABOR ORGANIZATION WHICH REPRESENTS EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE AS DEFINED IN THIS CHAPTER AND ANY EMPLOYER
WHOSE ACTIVITIES AFFECT COMMERCE AS DEFINED IN THIS CHAPTER SHALL BE
BOUND BY THE ACTS OF ITS AGENTS.  ANY SUCH LABOR ORGANIZATION MAY SUE
OR BE SUED AS AN ENTITY AND IN BEHALF OF THE EMPLOYEES WHOM IT
REPRESENTS IN THE COURTS OF THE UNITED STATES.  ANY MONEY JUDGMENT
AGAINST A LABOR ORGANIZATION IN A DISTRICT COURT OF THE UNITED STATES
SHALL BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND
AGAINST ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL
MEMBER OR HIS ASSETS." 

THERE HAS BEEN CONSIDERABLE LITIGATION INVOLVING SEC. 301 AND COURTS
HAVE CONSTRUED IT DIFFERENTLY.  THERE IS ONE VIEW THAT SEC. 301(A)
MERELY GIVES FEDERAL DISTRICT COURTS JURISDICTION IN CONTROVERSIES THAT
INVOLVE LABOR ORGANIZATIONS IN INDUSTRIES AFFECTING COMMERCE, WITHOUT
REGARD TO DIVERSITY OF CITIZENSHIP OR THE AMOUNT IN CONTROVERSY.  (FN1)
UNDER THAT VIEW SEC. 301(A) WOULD NOT BE THE SOURCE OF SUBSTANTIVE
LAW; IT WOULD NEITHER SUPPLY FEDERAL LAW TO RESOLVE THESE CONTROVERSIES
NOR TURN THE FEDERAL JUDGES TO STATE LAW FOR ANSWERS TO THE QUESTIONS. 
OTHER COURTS - THE OVERWHELMING NUMBER OF THEM - HOLD THAT SEC. 301(A)
IS MORE THAN JURISDICTIONAL (FN2) - THAT IT AUTHORIZES FEDERAL COURTS
TO FASHION A BODY OF FEDERAL LAW FOR THE ENFORCEMENT OF THESE
COLLECTIVE BARGAINING AGREEMENTS AND INCLUDES WITHIN THAT FEDERAL LAW
SPECIFIC PERFORMANCE OF PROMISES TO ARBITRATE GRIEVANCES UNDER
COLLECTIVE BARGAINING AGREEMENTS.  PERHAPS THE LEADING DECISION
REPRESENTING THAT POINT OF VIEW IS THE ONE RENDERED BY JUDGE WYZANSKI
IN TEXTILE WORKERS UNION V. AMERICAN THREAD CO., 113 F. SUPP. 137. 
THAT IS OUR CONSTRUCTION OF SEC. 301(A), WHICH MEANS THAT THE AGREEMENT
TO ARBITRATE GRIEVANCE DISPUTES, CONTAINED IN THIS COLLECTIVE
BARGAINING AGREEMENT, SHOULD BE SPECIFICALLY ENFORCED. 

FROM THE FACE OF THE ACT IT IS APPARENT THAT SEC. 301(A) AND SEC.
301(B) SUPPLEMENT ONE ANOTHER.  SECTION 301(B) MAKES IT POSSIBLE FOR A
LABOR ORGANIZATION, REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE, TO SUE AND BE SUED AS AN ENTITY IN THE FEDERAL COURTS. 
COMMON LAW.  SECTION 301(A) CERTAINLY DOES SOMETHING MORE THAN THAT. 
PLAINLY, IT SUPPLIES THE BASIS UPON WHICH THE FEDERAL DISTRICT COURTS
MAY TAKE JURISDICTION AND APPLY THE PROCEDURAL RULE OF SEC.  301(B). 
THE QUESTION IS WHETHER SEC. 301(A) IS MORE THAN JURISDICTIONAL. 

THE LEGISLATIVE HISTORY OF SEC. 301 IS SOMEWHAT CLOUDY AND
CONFUSING.  BUT THERE ARE A FEW SHAFTS OF LIGHT THAT ILLUMINATE OUR
PROBLEM. 

THE BILLS, AS THEY PASSED THE HOUSE AND THE SENATE, CONTAINED
PROVISIONS WHICH WOULD HAVE MADE THE FAILURE TO ABIDE BY AN AGREEMENT
TO ARBITRATE AN UNFAIR LABOR PRACTICE.  S. REP.  NO. 105, 80TH CONG.,
1ST SESS., PP. 20-21, 23; H.R. REP. NO. 245, 80TH CONG., 1ST SESS., P.
21.  (FN3)  THIS FEATURE OF THE LAW WAS DROPPED IN CONFERENCE.  AS THE
CONFERENCE REPORT STATED, "ONCE PARTIES HAVE MADE A COLLECTIVE
BARGAINING CONTRACT THE ENFORCEMENT OF THAT CONTRACT SHOULD BE LEFT TO
THE USUAL PROCESSES OF THE LAW AND NOT TO THE NATIONAL LABOR RELATIONS
BOARD."  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., P. 42. 

BOTH THE SENATE AND THE HOUSE TOOK PAINS TO PROVIDE FOR "THE USUAL
PROCESSES OF THE LAW" BY PROVISIONS WHICH WERE THE SUBSTANTIAL
EQUIVALENT OF SEC. 301(A) IN ITS PRESENT FORM.  BOTH THE SENATE REPORT
AND THE HOUSE REPORT INDICATE A PRIMARY CONCERN THAT UNIONS AS WELL AS
EMPLOYEES SHOULD BE BOUND TO COLLECTIVE BARGAINING CONTRACTS.  BUT
THERE WAS ALSO A BROADER CONCERN - A CONCERN WITH A PROCEDURE FOR
MAKING SUCH AGREEMENTS ENFORCEABLE IN THE COURTS BY EITHER PARTY.  AT
ONE POINT THE SENATE REPORT, SUPRA, P. 15, STATES, "WE FEEL THAT THE
AGGRIEVED PARTY SHOULD ALSO HAVE A RIGHT OF ACTION IN THE FEDERAL
COURTS.  SUCH A POLICY IS COMPLETELY IN ACCORD WITH THE PURPOSE OF THE
WAGNER ACT WHICH THE SUPREME COURT DECLARED WAS 'TO COMPEL EMPLOYERS TO
BARGAIN COLLECTIVELY WITH THEIR EMPLOYEES TO THE END THAT AN EMPLOYMENT
CONTRACT, BINDING ON BOTH PARTIES, SHOULD BE MADE  ...  .'" 

CONGRESS WAS ALSO INTERESTED IN PROMOTING COLLECTIVE BARGAINING THAT
ENDED WITH AGREEMENTS NOT TO STRIKE.  (FN4)  THE SENATE REPORT, SUPRA,
P. 16 STATES: 

"IF UNIONS CAN BREAK AGREEMENTS WITH RELATIVE IMPUNITY, THEN SUCH
AGREEMENTS DO NOT TEND TO STABILIZE INDUSTRIAL RELATIONS.  THE
EXECUTION OF AN AGREEMENT DOES NOT BY ITSELF PROMOTE INDUSTRIAL PEACE. 
THE CHIEF ADVANTAGE WHICH AN EMPLOYER CAN REASONABLY EXPECT FROM A
COLLECTIVE LABOR AGREEMENT IS ASSURANCE OF UNINTERRUPTED OPERATION
DURING THE TERM OF THE AGREEMENT.  WITHOUT SOME EFFECTIVE METHOD OF
ASSURING FREEDOM FROM ECONOMIC WARFARE FOR THE TERM OF THE AGREEMENT,
THERE IS LITTLE REASON WHY AN EMPLOYER WOULD DESIRE TO SIGN SUCH A
CONTRACT. 

"CONSEQUENTLY, TO ENCOURAGE THE MAKING OF AGREEMENTS AND TO PROMOTE
INDUSTRIAL PEACE THROUGH FAITHFUL PERFORMANCE BY THE PARTIES,
COLLECTIVE AGREEMENTS AFFECTING INTERSTATE COMMERCE SHOULD BE
ENFORCEABLE IN THE FEDERAL COURTS.  OUR AMENDMENT WOULD PROVIDE FOR
SUITS BY UNIONS AS LEGAL ENTITIES AND AGAINST UNIONS AS LEGAL ENTITIES
IN THE FEDERAL COURTS IN DISPUTES AFFECTING COMMERCE." 

THUS COLLECTIVE BARGAINING CONTRACTS WERE MADE "EQUALLY BINDING AND
ENFORCEABLE ON BOTH PARTIES."  ID., P. 15.  AS STATED IN THE HOUSE
REPORT, SUPRA, P. 6, THE NEW PROVISION "MAKES LABOR ORGANIZATIONS
EQUALLY RESPONSIBLE WITH EMPLOYERS FOR CONTRACT VIOLATIONS AND PROVIDES
FOR SUIT BY EITHER AGAINST THE OTHER IN THE UNITED STATES DISTRICT
COURTS."  TO REPEAT, THE SENATE REPORT, SUPRA, P. 17, SUMMED UP THE
PHILOSOPHY OF SEC. 301 AS FOLLOWS: "STATUTORY RECOGNITION OF THE
COLLECTIVE AGREEMENT AS A VALID, BINDING, AND ENFORCEABLE CONTRACT IS A
LOGICAL AND NECESSARY STEP.  IT WILL PROMOTE A HIGHER DEGREE OF
RESPONSIBILITY UPON THE PARTIES TO SUCH AGREEMENTS, AND WILL THEREBY
PROMOTE INDUSTRIAL PEACE." 

PLAINLY THE AGREEMENT TO ARBITRATE GRIEVANCE DISPUTES IS THE QUID PRO
QUO FOR AN AGREEMENT NOT TO STRIKE.  VIEWED IN THIS LIGHT, THE
LEGISLATION DOES MORE THAN CONFER JURISDICTION IN THE FEDERAL COURTS
OVER LABOR ORGANIZATIONS.  IT EXPRESSES A FEDERAL POLICY THAT FEDERAL
COURTS SHOULD ENFORCE THESE AGREEMENTS ON BEHALF OF OR AGAINST LABOR
ORGANIZATIONS AND THAT INDUSTRIAL PEACE CAN BE BEST OBTAINED ONLY IN
THAT WAY. 

TO BE SURE, THERE IS A GREAT MEDLEY OF IDEAS REFLECTED IN THE
HEARINGS, REPORTS, AND DEBATES ON THIS ACT.  YET, TO REPEAT, THE ENTIRE
TENOR OF THE HISTORY INDICATES THAT THE AGREEMENT TO ARBITRATE
GRIEVANCE DISPUTES WAS CONSIDERED AS QUID PRO QUO OF A NO-STRIKE
AGREEMENT.  AND WHEN IN THE HOUSE THE DEBATE NARROWED TO THE QUESTION
WHETHER SEC. 301 WAS MORE THAN JURISDICTIONAL, IT BECAME ABUNDANTLY
CLEAR THAT THE PURPOSE OF THE SECTION WAS TO PROVIDE THE NECESSARY
LEGAL REMEDIES.  SECTION 302 OF THE HOUSE BILL, (FN5) THE SUBSTANTIAL
EQUIVALENT OF THE PRESENT SEC. 301, WAS BEING DESCRIBED BY MR. HARTLEY,
THE SPONSOR OF THE BILL IN THE HOUSE: 

"MR. BARDEN.  MR. CHAIRMAN, I TAKE THIS TIME FOR THE PURPOSE OF
ASKING THE CHAIRMAN A QUESTION, AND IN ASKING THE QUESTION I WANT IT
UNDERSTOOD THAT IT IS INTENDED TO MAKE A PART OF THE RECORD THAT MAY
HEREAFTER BE REFERRED TO AS HISTORY OF THE LEGISLATION. 

"IT IS MY UNDERSTANDING THAT SECTION 302, THE SECTION DEALING WITH
EQUAL RESPONSIBILITY UNDER COLLECTIVE BARGAINING CONTRACTS IN STRIKE
ACTIONS AND PROCEEDINGS IN DISTRICT COURTS CONTEMPLATES NOT ONLY THE
ORDINARY LAWSUITS FOR DAMAGES BUT ALSO SUCH OTHER REMEDIAL PROCEEDINGS,
BOTH LEGAL AND EQUITABLE, AS MIGHT BE APPROPRIATE IN THE CIRCUMSTANCES;
IN OTHER WORDS, PROCEEDINGS COULD, FOR EXAMPLE, BE BROUGHT BY THE
EMPLOYERS, THE LABOR ORGANIZATIONS, OR INTERESTED INDIVIDUAL EMPLOYEES
UNDER THE DECLARATORY JUDGMENTS ACT IN ORDER TO SECURE DECLARATIONS
FROM THE COURT OF LEGAL RIGHTS UNDER THE CONTRACT. 

"MR. HARTLEY.  THE INTERPRETATION THE GENTLEMAN HAS JUST GIVEN OF
THAT SECTION IS ABSOLUTELY CORRECT."  93 CONG. REC. 3656-3657. 

IT SEEMS, THEREFORE, CLEAR TO US THAT CONGRESS ADOPTED A POLICY WHICH
PLACED SANCTIONS BEHIND AGREEMENTS TO ARBITRATE GRIEVANCE DISPUTES,
(FN6) BY IMPLICATION REJECTING THE COMMON-LAW RULE, DISCUSSED IN RED
CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109, AGAINST ENFORCEMENT OF
EXECUTORY AGREEMENTS TO ARBITRATE.  (FN7)  WE WOULD UNDERCUT THE ACT
AND DEFEAT ITS POLICY IF WE READ SEC. 301 NARROWLY AS ONLY CONFERRING
JURISDICTION OVER LABOR ORGANIZATIONS. 

THE QUESTION THEN IS, WHAT IS THE SUBSTANTIVE LAW TO BE APPLIED IN
SUITS UNDER SEC. 301(A)?  WE CONCLUDE THAT THE SUBSTANTIVE LAW TO APPLY
IN SUITS UNDER SEC. 301(A) IS FEDERAL LAW, WHICH THE COURTS MUST
FASHION FROM THE POLICY OF OUR NATIONAL LABOR LAWS.  SEE MENDELSOHN,
ENFORCEABILITY OF ARBITRATION AGREEMENTS UNDER TAFT-HARTLEY SECTION
301, 66 YALE L.J. 167.  THE LABOR MANAGEMENT RELATIONS ACT EXPRESSLY
FURNISHES SOME SUBSTANTIVE LAW.  IT POINTS OUT WHAT THE PARTIES MAY OR
MAY NOT DO IN CERTAIN SITUATIONS.  OTHER PROBLEMS WILL LIE IN THE
PENUMBRA OF EXPRESS STATUTORY MANDATES.  SOME WILL LACK EXPRESS
STATUTORY SANCTION BUT WILL BE SOLVED BY LOOKING AT THE POLICY OF THE
LEGISLATION AND FASHIONING A REMEDY THAT WILL EFFECTUATE THAT POLICY. 
THE RANGE OF JUDICIAL INVENTIVENESS WILL BE DETERMINED BY THE NATURE OF
THE PROBLEM.  SEE BOARD OF COMMISSIONERS V. UNITED STATES, 308 U.S.
343, 351.  FEDERAL INTERPRETATION OF THE FEDERAL LAW WILL GOVERN, NOT
STATE LAW.  CF. JEROME V. UNITED STATES, 318 U.S. 101, 104.  BUT STATE
LAW, IF COMPATIBLE WITH THE PURPOSE OF SEC. 301, MAY BE RESORTED TO IN
ORDER TO FIND THE RULE THAT WILL BEST EFFECTUATE THE FEDERAL POLICY. 
SEE BOARD OF COMMISSIONERS V. UNITED STATES, SUPRA, AT 351-352.  ANY
STATE LAW APPLIED, HOWEVER, WILL BE ABSORBED AS FEDERAL LAW AND WILL
NOT BE AN INDEPENDENT SOURCE OF PRIVATE RIGHTS. 

IT IS NOT UNCOMMON FOR FEDERAL COURTS TO FASHION FEDERAL LAW WHERE
FEDERAL RIGHTS ARE CONCERNED.  SEE CLEARFIELD TRUST CO. V. UNITED
STATES, 318 U.S. 363, 366-367; NATIONAL METROPOLITAN BANK V. UNITED
STATES, 323 U.S. 454.  CONGRESS HAS INDICATED BY SEC. 301(A) THE
PURPOSE TO FOLLOW THAT COURSE HERE.  THERE IS NO CONSTITUTIONAL
DIFFICULTY.  ARTICLE III, SEC. 2, EXTENDS THE JUDICIAL POWER TO CASES
"ARISING UNDER  ...  THE LAWS OF THE UNITED STATES  ...  ."  THE POWER
OF CONGRESS TO REGULATE THESE LABOR-MANAGEMENT CONTROVERSIES UNDER THE
COMMERCE CLAUSE IS PLAIN.  HOUSTON & TEXAS R. CO. V. UNITED STATES, 234
U.S. 342; LABOR BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1.  A CASE OR
CONTROVERSY ARISING UNDER SEC. 301(A) IS, THEREFORE, ONE WITHIN THE
PURVIEW OF JUDICIAL POWER AS DEFINED IN ARTICLE III. 

THE QUESTION REMAINS WHETHER JURISDICTION TO COMPEL ARBITRATION OF
GRIEVANCE DISPUTES IS WITHDRAWN BY THE NORRIS-LAGUARDIA ACT, 47 STAT.
70, 29 U.S.C. SEC. 101.  SECTION 7 OF THAT ACT PRESCRIBES STIFF
PROCEDURAL REQUIREMENTS FOR ISSUING AN INJUNCTION IN A LABOR DISPUTE. 
THE KINDS OF ACTS WHICH HAD GIVEN RISE TO ABUSE OF THE POWER TO ENJOIN
ARE LISTED IN SEC. 4.  THE FAILURE TO ARBITRATE WAS NOT A PART AND
PARCEL OF THE ABUSES AGAINST WHICH THE ACT WAS AIMED.  SECTION 8 OF THE
NORRIS-LAGUARDIA ACT DOES, INDEED, INDICATE A CONGRESSIONAL POLICY
TOWARD SETTLEMENT OF LABOR DISPUTES BY ARBITRATION, FOR IT DENIES
INJUNCTIVE RELIEF TO ANY PERSON WHO HAS FAILED TO MAKE "EVERY
REASONABLE EFFORT" TO SETTLE THE DISPUTE BY NEGOTIATION, MEDIATION, OR
"VOLUNTARY ARBITRATION."  THOUGH A LITERAL READING MIGHT BRING THE
DISPUTE WITHIN THE TERMS OF THE ACT (SEE COX, GRIEVANCE ARBITRATION IN
THE FEDERAL COURTS, 67 HARV. L. REV. 591, 602-604), WE SEE NO
JUSTIFICATION IN POLICY FOR RESTRICTING SEC. 301(A) TO DAMAGE SUITS,
LEAVING SPECIFIC PERFORMANCE OF A CONTRACT TO ARBITRATE GRIEVANCE
DISPUTES TO THE INAPPOSITE (FN8) PROCEDURAL REQUIREMENTS OF THAT ACT. 
MOREOVER, WE HELD IN VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S.
515, AND IN GRAHAM V. BROTHERHOOD OF FIREMEN, 338 U.S. 232, 237, THAT
THE NORRIS-LAGUARDIA ACT DOES NOT DEPRIVE FEDERAL COURTS OF
JURISDICTION TO COMPEL COMPLIANCE WITH THE MANDATES OF THE RAILWAY
LABOR ACT.  THE MANDATES THERE INVOLVED CONCERNED RACIAL
DISCRIMINATION.  YET THOSE DECISIONS WERE NOT BASED ON ANY
PECULIARITIES OF THE RAILWAY LABOR ACT.  WE FOLLOWED THE SAME COURSE IN
SYRES V. OIL WORKERS INTERNATIONAL UNION, 350 U.S. 892, WHICH WAS
GOVERNED BY THE NATIONAL LABOR RELATIONS ACT.  THERE AN INJUNCTION WAS
SOUGHT AGAINST RACIAL DISCRIMINATION IN APPLICATION OF A COLLECTIVE
BARGAINING AGREEMENT; AND WE ALLOWED THE INJUNCTION TO ISSUE.  THE
CONGRESSIONAL POLICY IN FAVOR OF THE ENFORCEMENT OF AGREEMENTS TO
ARBITRATE GRIEVANCE DISPUTES BEING CLEAR, (FN9) THERE IS NO REASON TO
SUBMIT THEM TO THE REQUIREMENTS OF SEC. 7 OF THE NORRIS-LAGUARDIA ACT. 

A QUESTION OF MOOTNESS WAS RAISED ON ORAL ARGUMENT.  IT APPEARS THAT
SINCE THE DATE OF THE DECISION IN THE COURT OF APPEALS RESPONDENT HAS
TERMINATED ITS OPERATIONS AND HAS CONTRACTED TO SELL ITS MILL
PROPERTIES.  ALL WORK IN THE MILL CEASED IN MARCH, 1957.  SOME OF THE
GRIEVANCES, HOWEVER, ASK FOR BACK PAY FOR INCREASED WORKLOADS; AND THE
COLLECTIVE BARGAINING AGREEMENT PROVIDES THAT "THE BOARD OF ARBITRATION
SHALL HAVE THE RIGHT TO ADJUST COMPENSATION RETROACTIVE TO THE DATE OF
THE CHANGE."  INSOFAR AS THE GRIEVANCES SOUGHT RESTORATION OF WORKLOADS
AND JOB ASSIGNMENTS, THE CASE IS, OF COURSE, MOOT.  BUT TO THE EXTENT
THAT THEY SOUGHT A MONETARY AWARD, THE CASE IS A CONTINUING
CONTROVERSY. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED TO THAT COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

FN1  INTERNATIONAL LADIES' GARMENT WORKERS' UNION V. JAY-ANN CO., 228
F.2D 632 (C.A. 5TH CIR.), SEMBLE; UNITED STEELWORKERS V. GALLAND
HENNING MFG. CO., 241 F.2D 323, 325 (C.A. 7TH CIR.); MERCURY OIL
REFINING CO. V. OIL WORKERS UNION, 187 F.2D 980, 983 (C.A. 10TH CIR.). 

FN2  THE FOLLOWING DECISIONS ARE TO THE EFFECT THAT SEC. 301(A)
CREATES SUBSTANTIVE RIGHTS: 

SHIRLEY-HERMAN CO. V. INTERNATIONAL HOD CARRIERS UNION, 182 F.2D 806,
809 (C.A.2D CIR.); ROCK DRILLING UNION V. MASON & HANGER CO., 217 F.2D
687, 691-692 (C.A.2D CIR.); SIGNAL-STAT CORP. V. LOCAL 475, 235 F.2D
298, 300 (C.A.2D CIR.); ASSN. OF WESTINGHOUSE EMPLOYEES V. WESTINGHOUSE
ELECTRIC CORP., 210 F.2D 623, 625 (C.A. 3D CIR.), AFFIRMED ON OTHER
GROUNDS, 348 U.S. 437; TEXTILE WORKERS UNION V. ARISTA MILLS, 193 F.2D
529, 533 (C.A. 4TH CIR.); HAMILTON FOUNDRY V. INTERNATIONAL MOLDERS &
FOUNDRY UNION, 193 F.2D 209, 215 (C.A. 6TH CIR.); AMERICAN FEDERATION
OF LABOR V. WESTERN UNION, 179 F.2D 535 (C.A. 6TH CIR.); MILK & ICE
CREAM DRIVERS V. GILLESPIE MILK PROD.  CORP., 203 F.2D 650, 651 (C.A.
6TH CIR.); UNITED ELECTRICAL R.&M. WORKERS V. OLIVER CORP., 205 F.2D
376, 384-385 (C.A. 8TH CIR.); SCHATTE V. INTERNATIONAL ALLIANCE, 182
F.2D 158, 164 (C.A. 9TH CIR.). 

FN3  THE SENATE BILL CONTAINED PROVISIONS WHICH WOULD HAVE MADE IT AN
UNFAIR LABOR PRACTICE FOR EITHER AN EMPLOYER OR A UNION "TO VIOLATE THE
TERMS OF A COLLECTIVE-BARGAINING AGREEMENT OR THE TERMS OF AN AGREEMENT
TO SUBMIT A LABOR DISPUTE TO ARBITRATION."  THE SENATE REPORT INDICATED
THAT THESE PROVISIONS WOULD PERMIT THE BOARD TO GRANT RELIEF IN THE
SAME INSTANCES WHERE SUIT MIGHT BE MAINTAINED UNDER SEC. 301.  "WHILE
TITLE III OF THE COMMITTEE BILL TREATS THIS SUBJECT BY GIVING BOTH
PARTIES RIGHTS TO SUE IN THE UNITED STATES DISTRICT COURT, THE
COMMITTEE BELIEVES THAT SUCH ACTION SHOULD ALSO BE AVAILABLE BEFORE AN
ADMINISTRATIVE BODY." 

THE HOUSE BILL DEFINED THE TERM "BARGAIN COLLECTIVELY" SO AS TO
REQUIRE "IF AN AGREEMENT IS IN EFFECT BETWEEN THE PARTIES PROVIDING A
PROCEDURE FOR ADJUSTING OR SETTLING SUCH DISPUTES, FOLLOWING SUCH
PROCEDURE."  COMMENTING ON THIS DEFINITION IN SEC. 2 OF THE HOUSE BILL,
THE HOUSE REPORT STATED:  "WHEN PARTIES HAVE AGREED UPON A PROCEDURE
FOR SETTLING THEIR DIFFERENCES, AND THE AGREEMENT IS IN EFFECT, THEY
WILL BE REQUIRED TO FOLLOW THE PROCEDURE OR BE HELD GUILTY OF AN UNFAIR
LABOR PRACTICE.  MOST AGREEMENTS PROVIDE PROCEDURES FOR SETTLING
GRIEVANCES, GENERALLY INCLUDING SOME FORM OF ARBITRATION AS THE LAST
STEP.  CONSEQUENTLY, THIS CLAUSE WILL OPERATE IN MOST CASES, EXCEPT
THOSE INVOLVING THE NEGOTIATION OF NEW CONTRACTS." 

FN4  S. REP. NO. 105, 80TH CONG., 1ST SESS., PP. 17-18 STATES: 

"STATUTORY RECOGNITION OF THE COLLECTIVE AGREEMENT AS A VALID,
BINDING, AND ENFORCEABLE CONTRACT IS A LOGICAL AND NECESSARY STEP.  IT
WILL PROMOTE A HIGHER DEGREE OF RESPONSIBILITY UPON THE PARTIES TO SUCH
AGREEMENTS, AND WILL THEREBY PROMOTE INDUSTRIAL PEACE. 

"IT HAS BEEN ARGUED THAT THE RESULT OF MAKING COLLECTIVE AGREEMENTS
ENFORCEABLE AGAINST UNIONS WOULD BE THAT THEY WOULD NO LONGER CONSENT
TO THE INCLUSION OF A NO-STRIKE CLAUSE IN A CONTRACT. 

"THIS ARGUMENT IS NOT SUPPORTED BY THE RECORD IN THE FEW STATES WHICH
HAVE ENACTED THEIR OWN LAWS IN AN EFFORT TO SECURE SOME MEASURE OF
UNION RESPONSIBILITY FOR BREACHES OF CONTRACT.  FOUR STATES -
MINNESOTA, COLORADO, WISCONSIN, AND CALIFORNIA - HAVE THUS FAR ENACTED
SUCH LAWS AND, SO FAR AS CAN BE LEARNED, NO-STRIKE CLAUSES HAVE BEEN
CONTINUED ABOUT AS BEFORE. 

"IN ANY EVENT, IT IS CERTAINLY A POINT TO BE BARGAINED OVER AND ANY
UNION WITH THE STATUS OF 'REPRESENTATIVE' UNDER THE NLRA WHICH HAS
BARGAINED IN GOOD FAITH WITH AN EMPLOYER SHOULD HAVE NO RELUCTANCE IN
INCLUDING A NO-STRIKE CLAUSE IF IT INTENDS TO LIVE UP TO THE TERMS OF
THE CONTRACT.  THE IMPROVEMENT THAT WOULD RESULT IN THE STABILITY OF
INDUSTRIAL RELATIONS IS, OF COURSE, OBVIOUS." 

FN5  SECTION 302(A) AS IT PASSED THE HOUSE READ AS FOLLOWS: 

"ANY ACTION FOR OR PROCEEDING INVOLVING A VIOLATION OF AN AGREEMENT
BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION OR OTHER REPRESENTATIVE OF
EMPLOYEES MAY BE BROUGHT BY EITHER PARTY IN ANY DISTRICT COURT OF THE
UNITED STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT REGARD TO THE
AMOUNT IN CONTROVERSY, IF SUCH AGREEMENT AFFECTS COMMERCE, OR THE COURT
OTHERWISE HAS JURISDICTION OF THE CAUSE." 

FN6  ASSN. OF WESTINGHOUSE EMPLOYEES V. WESTINGHOUSE ELECTRIC CORP.,
348 U.S. 437, IS QUITE A DIFFERENT CASE.  THERE THE UNION SUED TO
RECOVER UNPAID WAGES ON BEHALF OF SOME 4,000 EMPLOYEES.  THE BASIC
QUESTION CONCERNED THE STANDING OF THE UNION TO SUE AND RECOVER ON
THOSE INDIVIDUAL EMPLOYMENT CONTRACTS.  THE QUESTION HERE CONCERNS THE
RIGHT OF THE UNION TO ENFORCE THE AGREEMENT TO ARBITRATE WHICH IT HAS
MADE WITH THE EMPLOYER. 

FN7  WE DO NOT REACH THE QUESTION, WHICH THE COURT RESERVED IN RED
CROSS LINE V. ATLANTIC FRUIT CO., SUPRA, P. 125, WHETHER AS A MATTER OF
FEDERAL LAW EXECUTORY AGREEMENTS TO ARBITRATE ARE ENFORCEABLE, ABSENT
CONGRESSIONAL APPROVAL. 

FN8  SEE JUDGE MAGRUDER IN LOCAL 205 V. GENERAL ELECTRIC CO., 233
F.2D 85, 92. 

FN9  WHETHER THERE ARE SITUATIONS IN WHICH INDIVIDUAL EMPLOYEES MAY
BRING SUIT IN AN APPROPRIATE STATE OR FEDERAL COURT TO ENFORCE
GRIEVANCE RIGHTS UNDER EMPLOYMENT CONTRACTS WHERE THE COLLECTIVE
BARGAINING AGREEMENT PROVIDES FOR ARBITRATION OF THOSE GRIEVANCES IS A
QUESTION WE DO NOT REACH IN THIS CASE.  CF. ASSN. OF WESTINGHOUSE
EMPLOYEES V. WESTINGHOUSE ELECTRIC CORP., 348 U.S. 437, 460, 464; MOORE
V. ILLINOIS CENTRAL R. CO., 312 U.S. 630; SLOCUM V. DELAWARE, L.&W.R.
CO., 339 U.S. 239; TRANSCONTINENTAL AIR V. KOPPAL, 345 U.S. 653. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE HARLAN JOINS, CONCURRING IN THE
RESULT. 

THIS SUIT WAS BROUGHT IN A UNITED STATES DISTRICT COURT UNDER SEC.
301 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, 61 STAT. 156, 29
U.S.C. SEC. 185, SEEKING SPECIFIC ENFORCEMENT OF THE ARBITRATION
PROVISIONS OF A COLLECTIVE-BARGAINING CONTRACT.  THE DISTRICT COURT HAD
JURISDICTION OVER THE ACTION SINCE IT INVOLVED AN OBLIGATION RUNNING TO
A UNION - A UNION CONTROVERSY - AND NOT UNIQUELY PERSONAL RIGHTS OF
EMPLOYEES SOUGHT TO BE ENFORCED BY A UNION.  CF. ASSOCIATION OF
WESTINGHOUSE EMPLOYEES V. WESTINGHOUSE ELEC.  CORP., 348 U.S. 437. 
HAVING JURISDICTION OVER THE SUIT, THE COURT WAS NOT POWERLESS TO
FASHION AN APPROPRIATE FEDERAL REMEDY.  THE POWER TO DECREE SPECIFIC
PERFORMANCE OF A COLLECTIVELY BARGAINED AGREEMENT TO ARBITRATE FINDS
ITS SOURCE IN SEC. 301 ITSELF, (FN1) AND IN A FEDERAL DISTRICT COURT'S
INHERENT EQUITABLE POWERS, NURTURED BY A CONGRESSIONAL POLICY TO
ENCOURAGE AND ENFORCE LABOR ARBITRATION IN INDUSTRIES AFFECTING
COMMERCE.  (FN2) 

I DO NOT SUBSCRIBE TO THE CONCLUSION OF THE COURT THAT THE
SUBSTANTIVE LAW TO BE APPLIED IN A SUIT UNDER SEC. 301 IS FEDERAL LAW. 
AT THE SAME TIME, I AGREE WITH JUDGE MAGRUDER IN INTERNATIONAL
BROTHERHOOD V. W.L. MEAD, INC., 230 F.2D 576, THAT SOME FEDERAL RIGHTS
MAY NECESSARILY BE INVOLVED IN A SEC. 301 CASE, AND HENCE THAT THE
CONSTITUTIONALITY OF SEC. 301 CAN BE UPHELD AS A CONGRESSIONAL GRANT TO
FEDERAL DISTRICT COURTS OF WHAT HAS BEEN CALLED "PROTECTIVE
JURISDICTION." 

FN1  SEE THE OPINION OF JUDGE WYZANSKI IN TEXTILE WORKERS UNION V.
AMERICAN THREAD CO., 113 F. SUPP. 137. 

FN2  SEE THE DISSENT OF JUDGE BROWN IN THE COURT OF APPEALS IN THIS
CASE, 230 F.2D 81, 89. 

MR. JUSTICE FRANKFURTER, DISSENTING.* 

*THIS OPINION APPLIES ALSO TO NO. 276, GENERAL ELECTRIC CO. V. LOCAL
205, UNITED ELECTRICAL, RADIO & MACHINE WORKERS, POST, P. 547, AND NO.
262, GOODALL-SANFORD, INC. V. UNITED TEXTILE WORKERS, POST, P. 550. 

THE COURT HAS AVOIDED THE DIFFICULT PROBLEMS RAISED BY SEC. 301 OF
THE TAFT-HARTLEY ACT, 61 STAT. 156, 29 U.S.C. SEC. 185, (FN1) BY
ATTRIBUTING TO THE SECTION AN OCCULT CONTENT.  THIS PLAINLY PROCEDURAL
WHOLE BODY OF SUBSTANTIVE FEDERAL LAW APPROPRIATE FOR THE COMPLICATED
AND TOUCHY PROBLEMS RAISED BY COLLECTIVE BARGAINING.  I HAVE SET FORTH
IN MY OPINION IN EMPLOYEES V. WESTINGHOUSE CORP. THE DETAILED REASONS
WHY I BELIEVE THAT SEC. 301 CANNOT BE SO CONSTRUED, EVEN IF
CONSTITUTIONAL QUESTIONS CANNOT BE AVOIDED.  348 U.S. 437, 441-449, 452
459.  BUT THE COURT HAS A "CLEAR" AND CONTRARY CONCLUSION EMERGE FROM
THE "SOMEWHAT," TO SAY THE LEAST, "CLOUDY AND CONFUSING LEGISLATIVE
HISTORY."  THIS IS MORE THAN CAN BE FAIRLY ASKED EVEN FROM THE ALCHEMY
OF CONSTRUCTION.  SINCE THE COURT RELIES ON A FEW ISOLATED STATEMENTS
IN THE LEGISLATIVE HISTORY WHICH DO NOT SUPPORT ITS CONCLUSION, HOWEVER
FAVORINGLY READ, I HAVE DEEMED IT NECESSARY TO SET FORTH IN AN
APPENDIX, POST, P. 485, THE ENTIRE RELEVANT LEGISLATIVE HISTORY OF THE
TAFT-HARTLEY ACT AND ITS PREDECESSOR, THE CASE BILL.  THIS LEGISLATIVE
HISTORY REINFORCES THE NATURAL MEANING OF THE STATUTE AS AN EXCLUSIVELY
PROCEDURAL PROVISION, AFFORDING, THAT IS, AN ACCESSIBLE FEDERAL FORUM
FOR SUITS ON AGREEMENTS BETWEEN LABOR ORGANIZATIONS AND EMPLOYERS, BUT
NOT ENACTING FEDERAL LAW FOR SUCH SUITS.  SEE ALSO WOLLETT AND
WELLINGTON, FEDERALISM AND BREACH OF THE LABOR AGREEMENT, 7 STAN.  L.
REV. 445. 

I HAVE ALSO SET FORTH IN MY OPINION IN THE WESTINGHOUSE CASE AN
OUTLINE OF THE VAST PROBLEMS THAT THE COURT'S PRESENT DECISION CREATES
BY BRINGING INTO CONFLICT STATE LAW AND FEDERAL LAW, STATE COURTS AND
FEDERAL COURTS.  348 U.S., AT 454-455; SEE ALSO JUDGE WYZANSKI'S
OPINION IN TEXTILE WORKERS UNION V. AMERICAN THREAD CO., 113 F. SUPP.
137, 140.  THESE PROBLEMS ARE NOT RENDERED NON-EXISTENT BY DISREGARD OF
THEM.  IT SHOULD ALSO BE NOTED THAT WHATEVER MAY BE A UNION'S AD HOC
BENEFIT IN A PARTICULAR CASE, THE MEANING OF COLLECTIVE BARGAINING FOR
LABOR DOES NOT REMOTELY DERIVE FROM RELIANCE ON THE SANCTION OF
LITIGATION IN THE COURTS.  RESTRICTIONS MADE BY LEGISLATION LIKE THE
CLAYTON ACT OF 1914, 38 STAT. 738, SECS. 20, 22, AND THE NORRIS
LAGUARDIA ACT OF 1932, 47 STAT. 70, UPON THE USE OF FAMILIAR REMEDIES
THERETOFORE AVAILABLE IN THE FEDERAL COURTS, REFLECTED DEEP FEARS OF
THE LABOR MOVEMENT OF THE USE OF SUCH REMEDIES AGAINST LABOR.  BUT A
UNION, LIKE ANY OTHER COMBATANT ENGAGED IN A PARTICULAR FIGHT, IS READY
TO MAKE AN ALLY OF AN OLD ENEMY, AND SO WE ALSO FIND UNIONS RESORTING
TO THE OTHERWISE MUCH EXCORIATED LABOR INJUNCTION.  SUCH INTERMITTENT
YIELDING TO EXPEDIENCY DOES NOT CHANGE THE FACT THAT JUDICIAL
INTERVENTION IS ILL-SUITED TO THE SPECIAL CHARACTERISTICS OF THE
ARBITRATION PROCESS IN LABOR DISPUTES; NOR ARE THE CONDITIONS FOR ITS
EFFECTIVE FUNCTIONING THEREBY ALTERED. 

"THE ARBITRATION IS AN INTEGRAL PART OF THE SYSTEM OF SELF
GOVERNMENT.  AND THE SYSTEM IS DESIGNED TO AID MANAGEMENT IN ITS QUEST
FOR EFFICIENCY, TO ASSIST UNION LEADERSHIP IN ITS PARTICIPATION IN THE
ENTERPRISE, AND TO SECURE JUSTICE FOR THE EMPLOYEES.  IT IS A MEANS OF
MAKING COLLECTIVE BARGAINING WORK AND THUS PRESERVING PRIVATE
ENTERPRISE IN A FREE GOVERNMENT.  WHEN IT WORKS FAIRLY WELL, IT DOES
NOT NEED THE SANCTION OF THE LAW OF CONTRACTS OR THE LAW OF
ARBITRATION.  IT IS ONLY WHEN THE SYSTEM BREAKS DOWN COMPLETELY THAT
THE COURTS' AID IN THESE RESPECTS IS INVOKED.  BUT THE COURTS CANNOT,
BY OCCASIONAL SPORADIC DECISION, RESTORE THE PARTIES' CONTINUING
RELATIONSHIP; AND THEIR INTERVENTION IN SUCH CASES MAY SERIOUSLY AFFECT
THE GOING SYSTEMS OF SELF-GOVERNMENT.  WHEN THEIR AUTONOMOUS SYSTEM
BREAKS DOWN, MIGHT NOT THE PARTIES BETTER BE LEFT TO THE USUAL METHODS
FOR ADJUSTMENT OF LABOR DISPUTES RATHER THAN TO COURT ACTIONS ON THE
CONTRACT OR ON THE ARBITRATION AWARD?"  SHULMAN, REASON, CONTRACT, AND
LAW IN LABOR RELATIONS, 68 HARV. L. REV. 999, 1024.    THESE
REFLECTIONS SUMMARIZED THE VAST AND EXTRAORDINARILY SUCCESSFUL
EXPERIENCE OF DEAN HARRY SHULMAN AS LABOR ARBITRATOR, ESPECIALLY AS
UMPIRE UNDER THE COLLECTIVE-BARGAINING CONTRACT BETWEEN THE FORD MOTOR
CO. AND THE UAW-CIO.  (SEE HIS OPINIONS OF THE UMPIRE, FORD MOTOR CO.
AND UAW-CIO, 1943-1946, AND THE REVIEW BY E. MERRICK DODD IN 60 HARV.
L. REV. 486.)  ARBITRATION AGREEMENTS ARE FOR SPECIFIC TERMS, GENERALLY
MUCH SHORTER THAN THE TIME REQUIRED FOR ADJUDICATION OF A CONTESTED
LAWSUIT THROUGH THE AVAILABLE STAGES OF TRIAL AND APPEAL. 
RENEGOTIATION OF AGREEMENTS CANNOT AWAIT THE OUTCOME OF SUCH
LITIGATION; NOR CAN THE PARTIES' CONTINUING RELATION AWAIT IT.  CASES
UNDER SEC. 301 WILL PROBABLY PRESENT UNUSUAL RATHER THAN REPRESENTATIVE
SITUATIONS.  A "RULE" DERIVED FROM THEM IS MORE LIKELY TO
DISCOMBOBULATE THAN TO COMPOSE.  A "UNIFORM CORPUS" CANNOT BE EXPECTED
TO EVOLVE, CERTAINLY NOT WITHIN A TIME TO SERVE ITS ASSUMED FUNCTION. 

THE PRICKLY AND EXTENSIVE PROBLEMS THAT THE SUPPOSED GRANT WOULD
CREATE FURTHER COUNSEL AGAINST A FINDING THAT THE GRANT WAS MADE.  THEY
PRESENT HAZARDOUS OPPORTUNITIES FOR FRICTION IN THE REGULATION OF
CONTRACTS BETWEEN EMPLOYERS AND UNIONS.  THEY INVOLVE THE DIVISION OF
POWER BETWEEN STATE AND NATION, BETWEEN STATE COURTS AND FEDERAL
COURTS, INCLUDING THE EFFECTIVE FUNCTIONING OF THIS COURT.  WISDOM
SUGGESTS SELF-RESTRAINT IN UNDERTAKING TO SOLVE THESE PROBLEMS UNLESS
THE COURT IS CLEARLY DIRECTED TO DO SO.  SECTION 301 IS NOT SUCH A
DIRECTION.  THE LEGISLATIVE HISTORY CONTAINS NO SUGGESTION THAT THESE
PROBLEMS WERE CONSIDERED; THE TERMS OF THE SECTION DO NOT PRESENT
THEM. 

ONE WORD MORE REMAINS TO BE SAID.  THE EARLIEST DECLARATION OF
UNCONSTITUTIONALITY OF AN ACT OF CONGRESS - BY THE JUSTICES ON CIRCUIT
INVOLVED A REFUSAL BY THE JUSTICES TO PERFORM A FUNCTION IMPOSED UPON
THEM BY CONGRESS BECAUSE OF THE NON-JUDICIAL NATURE OF THAT FUNCTION. 
HAYBURN'S CASE, 2 DALL.  409.  SINCE THEN, THE COURT HAS MANY TIMES
DECLARED LEGISLATION UNCONSTITUTIONAL BECAUSE IT IMPOSED ON THE COURT
POWERS OR FUNCTIONS THAT WERE REGARDED AS OUTSIDE THE SCOPE OF THE
"JUDICIAL POWER" LODGED IN THE COURT BY THE CONSTITUTION.  SEE, E.G.,
MARBURY V. MADISON, 1 CRANCH 137; UNITED STATES V. FERREIRA, 13 HOW. 
40; MUSKRAT V. UNITED STATES, 219 U.S. 346; KELLER V. POTOMAC ELECTRIC
POWER CO., 261 U.S. 428. 

ONE MAY FAIRLY GENERALIZE FROM THESE INSTANCES THAT THE COURT HAS
DEEMED ITSELF PECULIARLY QUALIFIED, WITH DUE REGARD TO THE CONTRARY
JUDGMENT OF CONGRESS, TO DETERMINE WHAT IS MEET AND FIT FOR THE
EXERCISE OF "JUDICIAL POWER" AS AUTHORIZED BY THE CONSTITUTION. 
SOLICITUDE AND RESPECT FOR THE CONFINES OF "JUDICIAL POWER," AND THE
DIFFICULT PROBLEM OF MARKING THOSE CONFINES, APPLY EQUALLY IN
CONSTRUING PRECISELY WHAT DUTIES CONGRESS HAS CAST UPON THE FEDERAL
COURTS, ESPECIALLY WHEN, AS IN THIS CASE, THE MOST THAT CAN BE SAID IN
SUPPORT OF FINDING A CONGRESSIONAL DESIRE TO IMPOSE THESE "LEGISLATIVE"
DUTIES ON THE FEDERAL COURTS IS THAT CONGRESS DID NOT MENTION THE
PROBLEM IN THE STATUTE AND THAT, INSOFAR AS PURPOSE MAY BE GATHERED
FROM CONGRESSIONAL REPORTS AND DEBATES, THEY LEAVE US IN THE DARK. 

THE COURT, HOWEVER, SEES NO PROBLEM OF "JUDICIAL POWER" IN CASTING
UPON THE FEDERAL COURTS, WITH NO GUIDES EXCEPT "JUDICIAL
INVENTIVENESS," THE TASK OF APPLYING A WHOLE INDUSTRIAL CODE THAT IS AS
YET IN THE BOSOM OF THE JUDICIARY.  THERE ARE SEVERE LIMITS ON
"JUDICIAL INVENTIVENESS" EVEN FOR THE MOST IMAGINATIVE JUDGES.  THE LAW
IS NOT A "BROODING OMNIPRESENCE IN THE SKY," (MR. JUSTICE HOLMES,
DISSENTING, IN SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, 222), AND
IT CANNOT BE DRAWN FROM THERE LIKE NITROGEN FROM THE AIR.  THESE
PROBLEMS CREATED BY THE COURT'S INTERPRETATION OF SEC. 301 CANNOT "BE
SOLVED BY RESORT TO THE ESTABLISHED CANONS OF CONSTRUCTION THAT ENABLE
A COURT TO LOOK THROUGH AWKWARD OR CLUMSY EXPRESSION, OR LANGUAGE
WANTING IN PRECISION, TO THE INTENT OF THE LEGISLATURE.  FOR THE VICE
OF THE STATUTE HERE LIES IN THE IMPOSSIBILITY OF ASCERTAINING, BY ANY
REASONABLE TEST, THAT THE LEGISLATURE MEANT ONE THING RATHER THAN
ANOTHER  ...  ."  CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385,
394.  BUT THE COURT MAKES SEC. 301 A MOUNTAIN INSTEAD OF A MOLEHILL
AND, BY GIVING AN EXAMPLE OF "JUDICIAL INVENTIVENESS," IT THEREBY
SOLVES ALL THE CONSTITUTIONAL PROBLEMS THAT WOULD OTHERWISE HAVE TO BE
FACED. 

EVEN ON THE COURT'S ATTRIBUTION TO SEC. 301 OF A DIRECTION TO THE
FEDERAL COURTS TO FASHION, OUT OF BITS AND PIECES ELSEWHERE TO BE
GATHERED, A FEDERAL COMMON LAW OF LABOR CONTRACTS, IT STIL DOES NOT
FOLLOW THAT CONGRESS HAS ENACTED THAT AN AGREEMENT TO ARBITRATE
INDUSTRIAL DIFFERENCES BE SPECIFICALLY ENFORCEABLE IN THE FEDERAL
COURTS.  ON THE CONTRARY, THE BODY OF RELEVANT FEDERAL LAW PRECLUDES
SUCH ENFORCEMENT OF ARBITRATION CLAUSES IN COLLECTIVE-BARGAINING
AGREEMENTS. 

PRIOR TO 1925, THE DOCTRINE THAT EXECUTORY AGREEMENTS TO ARBITRATE
ANY KIND OF DISPUTE WOULD NOT BE SPECIFICALLY ENFORCED STILL HELD SWAY
IN THE FEDERAL COURTS.  SEE, E.G., JUDGE HOUGH'S OPINION IN UNITED
STATES ASPHALT REFINING CO. V. TRINIDAD LAKE PETROLEUM CO., 222 F.
1006; JUDGE MACK'S OPINION IN ATLANTIC FRUIT CO. V. RED CROSS LINE, 276
F. 319; AND MR. JUSTICE BRANDEIS' OPINION IN RED CROSS LINE V. ATLANTIC
FRUIT CO., 264 U.S. 109, 123, 125.  LEGISLATION WAS DEEMED NECESSARY TO
ASSURE SUCH POWER TO THE FEDERAL COURTS.  IN 1925, CONGRESS PASSED THE
UNITED STATES ARBITRATION ACT, 9 U.S.C. SEC. 1 ET SEQ., MAKING
EXECUTORY AGREEMENTS TO ARBITRATE SPECIFICALLY ENFORCEABLE IN THE
FEDERAL COURTS, BUT EXPLICITLY EXCLUDING "CONTRACTS OF EMPLOYMENT" OF
WORKERS ENGAGED IN INTERSTATE COMMERCE FROM ITS SCOPE.  NATURALLY
ENOUGH, I FIND REJECTION, THOUGH NOT EXPLICIT, OF THE AVAILABILITY OF
THE FEDERAL ARBITRATION ACT TO ENFORCE ARBITRATION CLAUSES IN
COLLECTIVE-BARGAINING AGREEMENTS IN THE SILENT TREATMENT GIVEN THAT ACT
BY THE COURT'S OPINION.  IF AN ACT THAT AUTHORIZES THE FEDERAL COURTS
TO ENFORCE ARBITRATION PROVISIONS IN CONTRACTS GENERALLY, BUT
SPECIFICALLY DENIES AUTHORITY TO DECREE THAT REMEDY FOR "CONTRACTS OF
EMPLOYMENT," WERE AVAILABLE, THE COURT WOULD HARDLY SPIN SUCH POWER OUT
OF THE EMPTY DARKNESS OF SEC. 301.  I WOULD MAKE THIS REJECTION
EXPLICIT, RECOGNIZING THAT WHEN CONGRESS PASSED LEGISLATION TO ENABLE
ARBITRATION AGREEMENTS TO BE ENFORCED BY THE FEDERAL COURTS, IT SAW FIT
TO EXCLUDE THIS REMEDY WITH RESPECT TO LABOR CONTRACTS.  SEE
AMALGAMATED ASSOCIATION V. PENNSYLVANIA GREYHOUND LINES, 192 F.2D 310
(C.A. 3D CIR.); UNITED ELECTRICAL, RADIO & MACINE WORKERS V. MILLER
METAL PRODUCTS, INC., 215 F.2D 221 (C.A. 4TH CIR.); LINCOLN MILLS V.
TEXTILE WORKERS UNION, 230 F.2D 81 (C.A. 5TH CIR.); UNITED STEELWORKERS
OF AMERICA V. GALLAND-HENNING MFG. CO., 241 F.2D 323 (C.A. 7TH CIR.);
AND THE LEGISLATIVE HISTORY SET FORTH BY THE PARTIES IN THE PRESENT
CASES.  CONGRESS HEEDED THE RESISTANCE OF ORGANIZED LABOR,
UNCOMPROMISINGLY LED IN ITS HOSTILITY TO THIS MEASURE BY ANDREW
FURUSETH, PRESIDENT OF THE INTERNATIONAL SEAMEN'S UNION AND MOST
POWERFUL VOICE EXPRESSING LABOR'S FEAR OF THE USE OF THIS REMEDY
AGAINST IT.  (FN2) 

EVEN THOUGH THE COURT GLARINGLY IGNORES THE ARBITRATION ACT, IT DOES
AT LEAST RECOGNIZE THE COMMON-LAW RULE AGAINST ENFORCEMENT OF EXECUTORY
AGREEMENTS TO ARBITRATE.  IT NEVERTHELESS ENFORCES THE ARBITRATION
CLAUSE IN THE COLLECTIVE-BARGAINING AGREEMENTS IN THESE CASES.  IT DOES
SO BECAUSE IT FINDS THAT CONGRESS "BY IMPLICATION" REJECTED THE COMMON
LAW RULE.  I WOULD ADD THAT THE COURT, IN THUS DERIVING POWER FROM THE
UNREVEALING WORDS OF THE TAFT-HARTLEY ACT, HAS ALSO FOUND THAT CONGRESS
"BY IMPLICATION" REPEALED ITS OWN STATUTORY EXEMPTION OF COLLECTIVE
BARGAINING AGREEMENTS IN THE ARBITRATION ACT, AN EXEMPTION MADE AS WE
HAVE SEEN FOR WELL-DEFINED REASONS OF POLICY. 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT, WHICH REACHED THE
CONCLUSION THAT ARBITRATION CLAUSES IN COLLECTIVE-BARGAINING AGREEMENTS
WERE ENFORCEABLE UNDER THE ARBITRATION ACT, NEVERTHELESS FOUND THAT
SUCH CLAUSES WOULD NOT HAVE BEEN ENFORCEABLE BY VIRTUE OF SEC. 301: 

"A NUMBER OF COURTS HAVE HELD THAT SEC. 301 ITSELF IS A LEGISLATIVE
AUTHORIZATION FOR DECREES OF SPECIFIC PERFORMANCE OF ARBITRATION
AGREEMENTS  ...  .  WE THINK THAT IS READING TOO MUCH INTO THE VERY
GENERAL LANGUAGE OF SEC. 301.  THE TERMS AND LEGISLATIVE HISTORY OF
SEC. 301 SUFFICIENTLY DEMONSTRATE, IN OUR VIEW, THAT IT WAS NOT
INTENDED EITHER TO CREATE ANY NEW REMEDIES OR TO DENY APPLICABLE
EXISTING REMEDIES.  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 46
(1947); H.R. REP. NO. 510 (CONFERENCE REPORT), 80TH CONG., 1ST SESS. 42
(1947); 93 CONG. REC. 3734, 6540 (DAILY ED. 1947).  ARBITRATION WAS
SCARCELY MENTIONED AT ALL IN THE LEGISLATIVE HISTORY.  FURTHERMORE, THE
SAME PRACTICAL CONSIDERATION THAT MILITATES AGAINST JUDICIAL OVERRULING
OF THE COMMON LAW DOCTRINE APPLIES AGAINST INTERPRETING SEC. 301 TO
GIVE THAT EFFECT.  THE MOST THAT COULD BE READ INTO IT WOULD BE THAT IT
AUTHORIZES EQUITABLE REMEDIES IN GENERAL, INCLUDING DECREES FOR
SPECIFIC PERFORMANCE OF AN ARBITRATION AGREEMENT.  LACKING ARE THE
PROCEDURAL SPECIFICATIONS NEEDED FOR ADMINISTRATION OF THE POWER TO
COMPEL ARBITRATION  ...  .  THUS IT SEEMS TO US THAT A FIRMER STATUTORY
BASIS THAN SEC. 301 SHOULD BE FOUND TO JUSTIFY DEPARTURE FROM THE
JUDICIALLY FORMULATED DOCTRINES WITH REFERENCE TO ARBITRATION
AGREEMENTS."  LOCAL 205 V. GENERAL ELECTRIC CO., 233 F.2D 85, 96-97. 

I WOULD PUT THE CONCLUSION EVEN MORE STRONGLY BECAUSE, CONTRARY TO
THE VIEW OF THE COURT OF APPEALS FOR THE FIRST CIRCUIT, THE RULE THAT
IS DEPARTED FROM "BY IMPLICATION" HAD NOT ONLY BEEN "JUDICIALLY
FORMULATED" BUT HAD PURPOSEFULLY BEEN CONGRESSIONALLY FORMULATED IN THE
ARBITRATION ACT OF 1925.  AND IT IS BEING DEPARTED FROM ON THE TENUOUS
BASIS OF THE LEGISLATIVE HISTORY OF SEC. 301, FOR WHICH THE UTMOST THAT
CAN BE CLAIMED IS THAT INSOFAR AS THERE WAS ANY EXPECTATION AT ALL, IT
WAS ONLY THAT CONVENTIONAL REMEDIES, INCLUDING EQUITABLE REMEDIES,
WOULD BE AVAILABLE.  BUT OF COURSE, AS WE HAVE SEEN, "EQUITABLE
REMEDIES" IN THE FEDERAL COURTS HAD TRADITIONALLY EXCLUDED SPECIFIC
PERFORMANCE OF ARBITRATION CLAUSES, EXCEPT AS EXPLICITLY PROVIDED BY
THE 1925 ACT.  THUS, EVEN ASSUMING THAT SEC. 301 CONTAINS DIRECTIONS
FOR SOME FEDERAL SUBSTANTIVE LAW OF LABOR CONTRACTS, I SEE NO
JUSTIFICATION FOR TRANSLATING THE VAGUE EXPECTATION CONCERNING THE
REMEDIES TO BE APPLIED INTO AN OVERRULING OF PREVIOUS FEDERAL COMMON
LAW AND, MORE PARTICULARLY, INTO THE REPEAL OF THE PREVIOUS
CONGRESSIONAL EXEMPTION OF COLLECTIVE-BARGAINING AGREEMENTS FROM THE
CLASS OF AGREEMENTS IN WHICH ARBITRATION CLAUSES WERE TO BE ENFORCED. 

THE SECOND GROUND OF MY DISSENT FROM THE COURT'S ACTION IS MORE
FUNDAMENTAL.  (FN3)  SINCE I DO NOT AGREE WITH THE COURT'S CONCLUSION
THAT FEDERAL SUBSTANTIVE LAW IS TO GOVERN IN ACTIONS UNDER SEC. 301, I
AM FORCED TO CONSIDER THE SERIOUS CONSTITUTIONAL QUESTION THAT WAS
ADUMBRATED IN THE WESTINGHOUSE CASE, 348 U.S., AT 449-452, THE
CONSTITUTIONALITY OF A GRANT OF JURISDICTION TO FEDERAL COURTS OVER
CONTRACTS THAT CAME INTO BEING ENTIRELY BY VIRTUE OF STATE SUBSTANTIVE
LAW, A JURISDICTION NOT BASED ON DIVERSITY OF CITIZENSHIP, YET ONE IN
WHICH A FEDERAL COURT WOULD, AS IN DIVERSITY CASES, ACT IN EFFECT
MERELY AS ANOTHER COURT OF THE STATE IN WHICH IT SITS.  THE SCOPE OF
ALLOWABLE FEDERAL JUDICIAL POWER THAT THIS GRANT MUST SATISFY IS
CONSTITUTIONALLY DESCRIBED AS "CASES, IN LAW AND EQUITY, ARISING UNDER
THIS CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES MADE, OR
WHICH SHALL BE MADE, UNDER THEIR AUTHORITY."  ART. III, SEC. 2.  WHILE
INTERPRETIVE DECISIONS ARE LEGION UNDER GENERAL STATUTORY GRANTS OF
JURISDICTION STRIKINGLY SIMILAR TO THIS CONSTITUTIONAL WORDING, IT IS
GENERALLY RECOGNIZED THAT THE FULL CONSTITUTIONAL POWER HAS NOT BEEN
EXHAUSTED BY THESE STATUTES.  SEE, E.G., MISHKIN, THE FEDERAL
"QUESTION" IN THE DISTRICT COURTS, 53 COL. L. REV. 157, 160; SHULMAN
AND JAEGERMAN, SOME JURISDICTIONAL LIMITATIONS ON FEDERAL PROCEDURE, 45
YALE L.J. 393, 405, N. 47; WECHSLER, FEDERAL JURISDICTION AND THE
REVISION OF THE JUDICIAL CODE, 13 LAW & CONTEMP.  PROB., 216, 224-225. 

ALMOST WITHOUT EXCEPTION, DECISIONS UNDER THE GENERAL STATUTORY
GRANTS HAVE TESTED JURISDICTION IN TERMS OF THE PRESENCE, AS AN
INTEGRAL PART OF PLAINTIFF'S CAUSE OF ACTION, OF AN ISSUE CALLING FOR
INTERPRETATION OR APPLICATION OF FEDERAL LAW.  E.G., GULLY V. FIRST
NATIONAL BANK, 299 U.S. 109.  ALTHOUGH IT HAS SOMETIMES BEEN SUGGESTED
THAT THE "CAUSE OF ACTION" MUST DERIVE FROM FEDERAL LAW, SEE AMERICAN
WELL WORKS CO. V. LAYNE & BOWLER CO., 241 U.S. 257, 260, IT HAS BEEN
FOUND SUFFICIENT THAT SOME ASPECT OF FEDERAL LAW IS ESSENTIAL TO
PLAINTIFF'S SUCCESS.  SMITH V. KANSAS CITY TITLE & TRUST CO., 255 U.S.
180.  THE LITIGATION-PROVOKING PROBLEM HAS BEEN THE DEGREE TO WHICH
FEDERAL LAW MUST BE IN THE FOREFRONT OF THE CASE AND NOT COLLATERAL,
PERIPHERAL OR REMOTE. 

IN A FEW EXCEPTIONAL CASES, ARISING UNDER SPECIAL JURISDICTIONAL
GRANTS, THE CRITERIA BY WHICH THE PROMINENCE OF THE FEDERAL QUESTION IS
MEASURED AGAINST CONSTITUTIONAL REQUIREMENTS HAVE BEEN FOUND SATISFIED
UNDER CIRCUMSTANCES SUGGESTING A VARIANT THEORY OF THE NATURE OF THESE
REQUIREMENTS.  THE FIRST, AND THE LEADING CASE IN THE FIELD, IS OSBORN
V. BANK OF THE UNITED STATES, 9 WHEAT.  738.  THERE, CHIEF JUSTICE
MARSHALL SUSTAINED FEDERAL JURISDICTION IN A SITUATION - HYPOTHETICAL
IN THE CASE BEFORE HIM BUT PRESENTED BY THE COMPANION CASE OF BANK OF
THE UNITED STATES V. PLANTERS' BANK, 9 WHEAT.  904 - INVOLVING SUIT BY
A FEDERALLY INCORPORATED BANK UPON A CONTRACT.  DESPITE THE ASSUMPTION
THAT THE CAUSE OF ACTION AND THE INTERPRETATION OF THE CONTRACT WOULD
BE GOVERNED BY STATE LAW, THE CASE WAS FOUND TO "ARISE UNDER THE LAWS
OF THE UNITED STATES" BECAUSE THE PROPRIETY AND SCOPE OF A FEDERALLY
GRANTED AUTHORITY TO ENTER INTO CONTRACTS AND TO LITIGATE MIGHT WELL BE
CHALLENGED.  THIS REASONING WAS SUBSEQUENTLY APPLIED TO SUSTAIN
JURISDICTION IN ACTIONS AGAINST FEDERALLY CHARTERED RAILROAD
CORPORATIONS.  PACIFIC RAILROAD REMOVAL CASES, 115 U.S. 1.  THE
TRADITIONAL INTERPRETATION OF THIS SERIES OF CASES IS THAT FEDERAL
JURISDICTION UNDER THE "ARISING" CLAUSE OF THE CONSTITUTION, THOUGH
LIMITED TO CASES INVOLVING POTENTIAL FEDERAL QUESTIONS, HAS SUCH
FLEXIBILITY THAT CONGRESS MAY CONFER IT WHENEVER THERE EXISTS IN THE
BACKGROUND SOME FEDERAL PROPOSITION THAT MIGHT BE CHALLENGED, DESPITE
THE REMOTENESS OF THE LIKELIHOOD OF ACTUAL PRESENTATION OF SUCH A
FEDERAL QUESTION.  (FN4) 

THE VIEWS EXPRESSED IN OSBORN AND THE PACIFIC RAILROAD REMOVAL CASES
WERE SEVERLY RESTRICTED IN CONSTRUING GENERAL GRANTS OF JURISDICTION. 
BUT THE COURT LATER SUSTAINED THIS JURISDICTIONAL SECTION OF THE
BANKRUPTCY ACT OF 1898: 

"THE UNITED STATES DISTRICT COURTS SHALL HAVE JURISDICTION OF ALL
CONTROVERSIES AT LAW AND IN EQUITY, AS DISTINGUISHED FROM PROCEEDINGS
IN BANKRUPTCY, BETWEEN TRUSTEES AS SUCH AND ADVERSE CLAIMANTS
CONCERNING THE PROPERTY ACQUIRED OR CLAIMED BY THE TRUSTEES, IN THE
SAME MANNER AND TO THE SAME EXTENT ONLY AS THOUGH BANKRUPTCY
PROCEEDINGS HAD NOT BEEN INSTITUTED AND SUCH CONTROVERSIES HAD BEEN
BETWEEN THE BANKRUPTS AND SUCH ADVERSE CLAIMANTS."  SEC. 23(A), AS
AMENDED, 44 STAT. 664. 

UNDER THIS PROVISION THE TRUSTEE COULD PURSUE IN A FEDERAL COURT A
PRIVATE CAUSE OF ACTION ARISING UNDER AND WHOLLY GOVERNED BY STATE
LAW.  SCHUMACHER V. BEELER, 293 U.S. 367; WILLIAMS V. AUSTRIAN, 331
U.S. 642 (CHANDLER ACT OF 1938, 52 STAT. 840).  TO BE SURE, THE CASES
DID NOT DISCUSS THE BASIS OF JURISDICTION.  IT HAS BEEN SUGGESTED THAT
THEY MERELY REPRESENT AN EXTENSION OF THE APPROACH OF THE OSBORN CASE;
THE TRUSTEE'S RIGHT TO SUE MIGHT BE CHALLENGED ON OBVIOUSLY FEDERAL
GROUNDS - ABSENCE OF BANKRUPTCY OR IRREGULARITY OF THE TRUSTEE'S
APPOINTMENT OR OF THE BANKRUPTCY PROCEEDINGS.   NATIONAL MUTUAL INS.
CO. V. TIDEWATER TRANSFER CO., 337 U.S. 582, 611-613 (RUTLEDGE, J.,
CONCURRING).  SO VIEWED, THIS TYPE OF LITIGATION IMPLICATES A POTENTIAL
FEDERAL QUESTION. 

APPARENTLY RELYING ON THE EXTENT TO WHICH THE BANKRUPTCY CASES
INVOLVE ONLY REMOTELY A FEDERAL QUESTION, MR. JUSTICE JACKSON CONCLUDED
IN NATIONAL MUTUAL INSURANCE CO. V. TIEDWATER TRANSFER CO., 337 U.S.
582, THAT CONGRESS MAY CONFER JURISDICTION ON THE DISTRICT COURTS AS
INCIDENTAL TO ITS POWERS UNDER ARTICLE I. NO ATTEMPT WAS MADE TO
RECONCILE THIS VIEW WITH THE RESTRICTIONS OF ARTICLE III; A MAJORITY OF
THE COURT RECOGNIZED THAT ARTICLE III DEFINED THE BOUNDS OF VALID
JURISDICTIONAL LEGISLATION AND REJECTED THE NOTION THAT JURISDICTIONAL
GRANTS CAN GO OUTSIDE THESE LIMITS. 

WITH THIS BACKGROUND, MANY THEORIES HAVE BEEN PROPOSED TO SUSTAIN THE
CONSTITUTIONAL VALIDITY OF SEC. 301.  IN TEXTILE WORKERS UNION OF
AMERICA V. AMERICAN THREAD CO., 113 F. SUPP. 137, 140, JUDGE WYZANSKI
SUGGESTED, AMONG OTHER POSSIBILITIES, THAT SEC. 301 MIGHT BE READ AS
CONTAINING A DIRECTION THAT CONTROVERSIES AFFECTING INTERSTATE COMMERCE
SHOULD BE GOVERNED BY FEDERAL LAW INCORPORATING STATE LAW BY REFERENCE,
AND THAT SUCH CONTROVERSIES WOULD THEN ARISE UNDER A VALID FEDERAL LAW
AS REQUIRED BY ARTICLE III.  WHATEVER MAY BE SAID OF THE ASSUMPTION
REGARDING THE VALIDITY OF FEDERAL JURISDICTION UNDER AN AFFIRMATIVE
DECLARATION BY CONGRESS THAT STATE LAW SHOULD BE APPLIED AS FEDERAL LAW
BY FEDERAL COURTS TO CONTRACT DISPUTES AFFECTING COMMERCE, WE CANNOT
ARGUMENTATIVELY LEGISLATE FOR CONGRESS WHEN CONGRESS HAS FAILED TO
LEGISLATE.  TO DO SO DISRESPECTS LEGISLATIVE RESPONSIBILITY AND
DISREGARDS JUDICIAL LIMITATIONS. 

ANOTHER THEORY, RELYING ON OSBORN AND THE BANKRUPTCY CASES, HAS BEEN
PROPOSED WHICH WOULD ACHIEVE RESULTS SIMILAR TO THOSE ATTAINABLE UNDER
MR. JUSTICE JACKSON'S VIEW, BUT WHICH PURPORTS TO RESPECT THE "ARISING"
CLAUSE OF ARTICLE III.  SEE HART AND WECHSLER, THE FEDERAL COURTS AND
THE FEDERAL SYSTEM, PP. 744-747; WECHSLER, FEDERAL JURISDICTION AND THE
REVISION OF THE JUDICIAL CODE, 13 LAW & CONTEMP.  PROB.  216, 224-225;
INTERNATIONAL BROTHERHOOD V. W.L. MEAD, INC., 230 F.2D 576.  CALLED
"PROTECTIVE JURISDICTION," THE SUGGESTION IS THAT IN ANY CASE FOR WHICH
CONGRESS HAS THE CONSTITUTIONAL POWER TO PRESCRIBE FEDERAL RULES OF
DECISION AND THUS CONFER "TRUE" FEDERAL QUESTION JURISDICTION, IT MAY,
WITHOUT SO DOING, ENACT A JURISDICTIONAL STATUTE, WHICH WILL PROVIDE A
FEDERAL FORUM FOR THE APPLICATION OF STATE STATUTE AND DECISIONAL LAW. 
ANALYSIS OF THE "PROTECTIVE JURISDICTION" THEORY MIGHT ALSO BE
ATTEMPTED IN TERMS OF THE LANGUAGE OF ARTICLE III - CONSTRUING "LAWS"
TO INCLUDE JURISDICTIONAL STATUTES WHERE CONGRESS COULD HAVE LEGISLATED
SUBSTANTIVELY IN A FIELD.  THIS IS BUT ANOTHER WAY OF SAYING THAT
BECAUSE CONGRESS COULD HAVE LEGISLATED SUBSTANTIVELY AND THEREBY COULD
GIVE RISE TO LITIGATION UNDER A STATUTE OF THE UNITED STATES, IT CAN
PROVIDE A FEDERAL FORUM FOR STATE-CREATED RIGHTS ALTHOUGH IT CHOSE NOT
TO ADOPT STATE LAW AS FEDERAL LAW OR TO ORIGINATE FEDERAL RIGHTS. 

SURELY THE TRULY TECHNICAL RESTRICTIONS OF ARTICLE III ARE NOT MET OR
RESPECTED BY A BEGUILING PHRASE THAT THE GREATER POWER HERE MUST
NECESSARILY INCLUDE THE LESSER.  IN THE COMPROMISE OF FEDERAL AND STATE
INTERESTS LEADING TO DISTRIBUTION OF JEALOUSLY GUARDED JUDICIAL POWER
IN A FEDERAL SYSTEM, SEE 13 CORNELL L.Q. 499, IT IS OBVIOUS THAT VERY
DIFFERENT CONSIDERATIONS APPLY TO CASES INVOLVING QUESTIONS OF FEDERAL
LAW AND THOSE TURNING SOLELY ON STATE LAW.  IT MAY BE THAT THE
AMBIGUITY OF THE PHRASE "ARISING UNDER THE LAWS OF THE UNITED STATES"
LEAVES ROOM FOR MORE THAN TRADITIONAL THEORY COULD ACCOMMODATE.  BUT,
UNDER THE THEORY OF "PROTECTIVE JURISDICTION," THE "ARISING UNDER"
JURISDICTION OF THE FEDERAL COURTS WOULD BE VASTLY EXTENDED.  FOR
EXAMPLE, EVERY CONTRACT OR TORT ARISING OUT OF A CONTRACT AFFECTING
COMMERCE MIGHT BE A POTENTIAL CAUSE OF ACTION IN THE FEDERAL COURTS,
EVEN THOUGH ONLY STATE LAW WAS INVOLVED IN THE DECISION OF THE CASE. 
AT LEAST IN OSBORN AND THE BANKRUPTCY CASES, A SUBSTANTIVE FEDERAL LAW
WAS PRESENT SOMEWHERE IN THE BACKGROUND.  SEE PP. 470-472, SUPRA, AND
PP. 480-484, INFRA.  BUT THIS THEORY RESTS ON THE SUPPOSITION THAT
CONGRESS COULD ENACT SUBSTANTIVE FEDERAL LAW TO GOVERN THE PARTICULAR
CASE.  IT WAS NOT HELD IN THOSE CASES, NOR IS IT CLEAR, THAT FEDERAL
LAW COULD BE HELD TO GOVERN THE TRANSACTIONS OF ALL PERSONS WHO
SUBSEQUENTLY BECOME BANKRUPT, OR OF ALL SUITS OF A BANK OF THE UNITED
STATES.  SEE MISHKIN, THE FEDERAL "QUESTION" IN THE DISTRICT COURTS, 53
COL. L. REV. 157, 189. 

"PROTECTIVE JURISDICTION," ONCE THE LABEL IS DISCARDED, CANNOT BE
JUSTIFIED UNDER ANY VIEW OF THE ALLOWABLE SCOPE TO BE GIVEN TO ARTICLE
III.  "PROTECTIVE JURISDICTION" IS A MISUSED LABEL FOR THE STATUTE WE
ARE HERE CONSIDERING.  THAT RUBRIC IS PROPERLY DESCRIPTIVE OF
SAFEGUARDING SOME OF THE INDISPUTABLE, STAPLE BUSINESS OF THE FEDERAL
COURTS.  IT IS A RADIATION OF AN EXISTING JURISDICTION.   SEE ADAMS V.
UNITED STATES EX REL. MCCANN, 317 U.S. 269; 28 U.S.C. SEC. 2283. 
"PROTECTIVE JURISDICTION" CANNOT GENERATE AN INDEPENDENT SOURCE FOR
ADJUDICATION OUTSIDE OF THE ARTICLE III SANCTIONS AND WHAT CONGRESS HAS
DEFINED.  THE THEORY MUST HAVE AS ITS SOLE JUSTIFICATION A BELIEF IN
THE INADEQUACY OF STATE TRIBUNALS IN DETERMINING STATE LAW.  THE
CONSTITUTION REFLECTS SUCH A BELIEF IN THE SPECIFIC SITUATION WITHIN
WHICH THE DIVERSITY CLAUSE WAS CONFINED.  THE INTENTION TO REMEDY SUCH
SUPPOSED DEFECTS WAS EXHAUSTED IN THIS PROVISION OF ARTICLE III.  (FN5)
THAT THIS "PROTECTIVE" THEORY WAS NOT ADOPTED BY CHIEF JUSTICE
MARSHALL AT A TIME WHEN CONDITIONS MIGHT HAVE PRESENTED MORE
SUBSTANTIAL JUSTIFICATION STRONGLY SUGGESTS ITS LACK OF CONSTITUTIONAL
MERIT.  MOREOVER, CONGRESS IN ITS CONSIDERATION OF SEC. 301 NOWHERE
SUGGESTED DISSATISFACTION WITH THE ABILITY OF STATE COURTS TO
ADMINISTER STATE LAW PROPERLY.  ITS CONCERN WAS TO PROVIDE ACCESS TO
THE FEDERAL COURTS FOR EASIER ENFORCEMENT OF STATE-CREATED RIGHTS. 

ANOTHER THEORY ALSO RELIES ON OSBORN AND THE BANKRUPTCY CASES AS AN
IMPLICIT RECOGNITION OF THE PROPRIETY OF THE EXERCISE OF SOME SORT OF
"PROTECTIVE JURISDICTION" BY THE FEDERAL COURTS.  MISHKIN, OP. CIT.
SUPRA, 53 COL. L. REV. 157, 184 ET SEQ. PROFESSOR MISHKIN TENDS TO VIEW
THE ASSERTION OF SUCH A JURISDICTION, IN THE ABSENCE OF ANY EXERCISE OF
SUBSTANTIVE POWERS, AS IRRECONCILABLE WITH THE "ARISING" CLAUSE SINCE
THE CASE WOULD THEN ARISE ONLY UNDER THE JURISDICTIONAL STATUTE ITSELF,
AND HE IS RELUCTANT TO FIND A CONSTITUTIONAL BASIS FOR THE GRANT OF
POWER OUTSIDE ARTICLE III.  PROFESSOR MISHKIN ALSO NOTES THAT THE ONLY
PURPOSE OF SUCH A STATUTE WOULD BE TO INSURE IMPARTIALITY TO SOME
LITIGANT, AN OBJECTION INCONSISTENT WITH ARTICLE III'S RECOGNITION OF
"PROTECTIVE JURISDICTION" ONLY IN THE SPECIFIED SITUATION OF DIVERSE
CITIZENSHIP.  BUT WHERE CONGRESS HAS "AN ARTICULATED AND ACTIVE FEDERAL
POLICY REGULATING A FIELD, THE 'ARISING UNDER' CLAUSE OF ARTICLE III
APPARENTLY PERMITS THE CONFERRING OF JURISDICTION ON THE NATIONAL
COURTS OF ALL CASES IN THE AREA - INCLUDING THOSE SUBSTANTIVELY
GOVERNED BY STATE LAW."  ID, AT 192.  IN SUCH CASES, THE PROTECTION
BEING OFFERED IS NOT TO THE SUITOR, AS IN DIVERSITY CASES, BUT TO THE
"CONGRESSIONAL LEGISLATIVE PROGRAM."  THUS HE SUPPORTS SEC. 301:  "EVEN
THOUGH THE RULES GOVERNING COLLECTIVE BARGAINING AGREEMENTS CONTINUE TO
BE STATE-FASHIONED, NONETHELESS THE MODE OF THEIR APPLICATION AND
ENFORCEMENT MAY PLAY A VERY SUBSTANTIAL PART IN THE LABOR-MANAGEMENT
RELATIONS OF INTERSTATE INDUSTRY AND COMMERCE - AN AREA IN WHICH THE
NATIONAL GOVERNMENT HAS LABORED LONG AND HARD."  ID., AT 196. 

INSOFAR AS STATE LAW GOVERNS THE CASE, PROFESSOR MISHKIN'S THEORY IS
QUITE SIMILAR TO THAT ADVANCED BY PROFESSORS HART AND WECHSLER AND
FOLLOWED BY THE COURT OF APPEALS FOR THE FIRST CIRCUIT:  THE
SUBSTANTIVE POWER OF CONGRESS, ALTHOUGH NOT EXERCISED TO GOVERN THE
PARTICULAR "CASE," GIVES "ARISING UNDER" JURISDICTION TO THE FEDERAL
COURTS DESPITE GOVERNING STATE LAW.  THE SECOND "PROTECTIVE
JURISDICTION" THEORY HAS THE DUBIOUS ADVANTAGE OF LIMITING INCURSIONS
ON STATE JUDICIAL POWER TO SITUATIONS IN WHICH THE STATE'S FEELINGS MAY
HAVE BEEN TEMPERED BY EARLY SUBSTANTIVE FEDERAL INVASIONS. 

PROFESSOR MISHKIN'S THEORY OF "PROTECTIVE JURISDICTION" MAY FIND MORE
CONSTITUTIONAL JUSTIFICATION IF THERE IS NOT MERELY AN "ARTICULATED AND
ACTIVE" CONGRESSIONAL POLICY REGULATING THE LABOR FIELD BUT ALSO
FEDERAL RIGHTS EXISTING IN THE INTERSTICES OF ACTIONS UNDER SEC. 301. 
SEE WOLLETT AND WELLINGTON, FEDERALISM AND BREACH OF THE LABOR
AGREEMENT, 7 STAN.  L. REV. 445, 475-479.  THEREFORE, BEFORE RESTING ON
AN INTERPRETATION OF SEC. 301 THAT WOULD COMPEL A DECLARATION OF
UNCONSTITUTIONALITY, WE MUST, AS WAS STATED IN WESTINGHOUSE, DEFER TO
THE STRONG PRESUMPTION - EVEN AS TO SUCH TECHNICAL MATTERS AS FEDERAL
JURISDICTION - THAT CONGRESS LEGISLATED IN ACCORDANCE WITH THE
CONSTITUTION.  THE DIFFICULT NATURE OF THE PROBLEM OF CONSTRUCTION TO
BE FACED IF SOME FEDERAL RIGHTS ARE SOUGHT WAS SET FORTH IN
WESTINGHOUSE, WHERE THE CONSTITUTIONAL QUESTIONS WERE INVOLVED ONLY IN
THEIR BEARING ON THE CONSTRUCTION OF THE STATUTE.  NOW THAT THE
CONSTITUTIONAL QUESTIONS THEMSELVES MUST BE FACED, THE NATURE OF THE
PROBLEM BEARS REPEATING. 

LEGISLATION MUST, IF POSSIBLE, BE GIVEN A MEANING THAT WILL ENABLE IT
TO SURVIVE.  THIS RULE OF CONSTITUTIONAL ADJUDICATION IS NORMALLY
INVOKED TO NARROW WHAT WOULD OTHERWISE BE THE NATURAL BUT
CONSTITUTIONALLY DUBIOUS SCOPE OF THE LANGUAGE.  E.G., UNITED STATES V.
DELAWARE & HUDSON CO., 213 U.S. 366; UNITED STATES V. JIN FUEY MOY, 241
U.S. 394, 401; UNITED STATES V. RUMELY, 345 U.S. 41.  HERE THE ENDEAVOR
OF SOME LOWER COURTS AND OF THIS COURT HAS RESULTED IN ADDING TO THE
FIT NOT TO EXERCISE SUCH POWER OR TO GIVE THE COURTS ANY CONCRETE
GUIDANCE FOR DEFINING SUCH REGULATION. 

TO BE SURE, THE FULL SCOPE OF A SUBSTANTIVE REGULATION IS FREQUENTLY
IN DISPUTE AND MUST AWAIT AUTHORITATIVE DETERMINATION BY COURTS. 
CONGRESS DECLARES ITS PURPOSE IMPERFECTLY OR PARTIALLY, AND COMPATIBLE
JUDICIAL CONSTRUCTION COMPLETES IT.  BUT IN THIS CASE WE START WITH A
PROVISION THAT IS WHOLLY JURISDICTIONAL AND AS SUCH BRISTLES WITH
CONSTITUTIONAL PROBLEMS UNDER ARTICLE III.  TO AVOID THEM,
INTERPOLATION OF SUBSTANTIVE REGULATION HAS BEEN PROPOSED.  FROM WHAT
MATERIALS ARE WE TO DRAW A DETERMINATION THAT SEC. 301 IS SOMETHING
OTHER THAN WHAT IT DECLARES ITSELF?  IS THE COURT JUSTIFIED IN CREATING
ALL THE DIFFICULT PROBLEMS OF CHOICE WITHIN A SPHERE OF DELICATE POLICY
WITHOUT ANY DIRECTION FROM CONGRESS AND MERELY FOR THE SAKE OF GIVING
EFFECT TO A PROVISION THAT SEEMS TO DEAL WITH A DIFFERENT SUBJECT?  THE
SOMEWHAT DELPHIC WISDOM OF MR. JUSTICE CARDOZO, SPEAKING FOR THE WHOLE
COURT, PULLS US HERE IN THE OPPOSITE DIRECTION:  "WE THINK THE LIGHT IS
SO STRONG AS TO FLOOD WHATEVER PLACES IN THE STATUTE MIGHT OTHERWISE BE
DARK.  COURTS HAVE STRIVEN MIGHTILY AT TIMES TO CANALIZE CONSTRUCTION
ALONG THE PATH OF SAFETY  ...  .  WHEN A STATUTE IS REASONABLY
SUSCEPTIBLE OF TWO INTERPRETATIONS, THEY HAVE PREFERRED THE MEANING
THAT PRESERVES TO THE MEANING THAT DESTROYS  ...  .  'BUT AVOIDANCE OF
A DIFFICULTY WILL NOT BE PRESSED TO THE POINT OF DISINGENUOUS
EVASION.'  ...  'HERE THE INTENTION OF THE CONGRESS IS REVEALED TOO
DISTINCTLY TO PERMIT US TO IGNORE IT BECAUSE OF MERE MISGIVINGS AS TO
POWER.'"  HOPKINS FEDERAL SAVINGS & LOAN ASSN. V. CLEARY, 296 U.S. 315,
334-335.    ASSUMING, HOWEVER, THAT WE WOULD BE JUSTIFIED IN POURING
SUBSTANTIVE CONTENT INTO A MERELY PROCEDURAL VEHICLE, WHAT ELEMENTS OF
FEDERAL LAW COULD REASONABLY BE PUT INTO THE PROVISIONS OF SEC. 301? 
THE SUGGESTION THAT THE SECTION PERMITS THE FEDERAL COURTS TO WORK OUT,
WITHOUT MORE, A FEDERAL CODE GOVERNING COLLECTIVE-BARGAINING CONTRACTS
MUST, FOR REASONS THAT HAVE ALREADY BEEN STATED, BE REJECTED.  LIKEWISE
THE SUGGESTION THAT SEC. 301 MAY BE VIEWED AS A CONGRESSIONAL
AUTHORIZATION TO THE FEDERAL COURTS TO WORK OUT A CONCEPT OF THE NATURE
OF THE COLLECTIVE-BARGAINING CONTRACT, LEAVING DETAILED QUESTIONS OF
INTERPRETATION TO STATE LAW.  SEE 348 U.S., AT 455-459. 

NOR WILL CONGRESS' OBJECTIVE BE FURTHERED BY AN ATTEMPT TO LIMIT THE
GRANT OF A FEDERAL FORUM TO CERTAIN TYPES OF ACTIONS BETWEEN UNIONS AND
EMPLOYERS.  IT WOULD BE DIFFICULT TO FIND ANY BASIS FOR, OR PRINCIPLES
OF, SELECTION, EITHER IN THE TERMS OF SEC. 301 OR IN CONSIDERATIONS
RELEVANT TO PROMOTION OF STABILITY IN LABOR RELATIONS.  IT IS TRUE THAT
A FAIR READING OF SEC. 301 IN THE CONTEXT OF ITS ENACTMENT SHOWS THAT
THE SUIT THAT CONGRESS PRIMARILY CONTEMPLATED WAS THE SUIT AGAINST A
UNION FOR STRIKE IN VIOLATION OF CONTRACT.  FROM THIS IT MIGHT BE
POSSIBLE TO IMPLY A FEDERAL RIGHT TO BRING AN ACTION FOR DAMAGES BASED
ON SUCH AN EVENT.  IN THE INTEREST OF MUTUALITY, SO CLOSE TO THE HEART
OF CONGRESS, WE MIGHT IN TURN FIND A FEDERAL RIGHT IN THE UNION TO SUE
FOR A LOCKOUT IN VIOLATION OF CONTRACT.  BUT NEITHER FEDERAL RIGHT
WOULD BE INVOLVED IN THE PRESENT CASES.   MOREOVER, IT BEARS REPETITION
THAT CONGRESS CHOSE NOT TO MAKE THIS THE BASIS OF FEDERAL LAW, I.E., IT
CHOSE NOT TO MAKE SUCH CONDUCT AN UNFAIR LABOR PRACTICE. 

THERE IS A POINT, HOWEVER, AT WHICH THE SEARCH MAY BE ENDED WITH LESS
MISGIVING REGARDING THE PROPRIETY OF JUDICIAL INFUSION OF SUBSTANTIVE
PROVISIONS INTO SEC. 301.  THE CONTRIBUTION OF FEDERAL LAW MIGHT
CONSIST IN POSTULATING THE RIGHT OF A UNION, DESPITE ITS AMORPHOUS
STATUS AS AN UNINCORPORATED ASSOCIATION, TO ENTER INTO BINDING
COLLECTIVE-BARGAINING CONTRACTS WITH AN EMPLOYER.  THE FEDERAL COURTS
MIGHT ALSO GIVE SANCTION TO THIS RIGHT BY REFUSING TO COMPLY WITH ANY
STATE LAW THAT DOES NOT ADMIT THAT COLLECTIVE BARGAINING MAY RESULT IN
AN ENFORCEABLE CONTRACT.  IT IS HARD TO SEE WHAT SERIOUS FEDERAL-STATE
CONFLICTS COULD ARISE UNDER THIS VIEW.  AT MOST, A STATE COURT MIGHT
DISMISS THE ACTION, WHILE A FEDERAL COURT WOULD ENTERTAIN IT.
MOREOVER, SUCH A FUNCTION OF FEDERAL LAW IS CLOSELY RELATED TO THE
REMOVAL OF THE PROCEDURAL BARRIERS TO SUIT.  SECTION 301 WOULD BE
FUTILE IF THE UNION'S STATUS AS A CONTRACTING PARTY WERE NOT
RECOGNIZED.  THE STATEMENT IN SEC. 301(B) THAT THE ACTS OF THE AGENTS
OF THE UNION ARE TO BE REGARDED AS BINDING UPON THE UNION MAY BE USED
IN SUPPORT OF THIS CONCLUSION.  THIS PROVISION, NOT CONFINED IN ITS
APPLICATION TO SUITS IN THE DISTRICT COURT UNDER SEC. 301(A), WAS
PRIMARILY DIRECTED TO RESPONSIBILITY OF THE UNION FOR ITS AGENTS'
ACTIONS IN AUTHORIZING STRIKES OR COMMITTING TORTS.  IT CAN BE
CONSTRUED, HOWEVER, AS APPLICABLE TO THE FORMATION OF A CONTRACT.  SO
APPLIED, IT WOULD IMPLY THAT A UNION MUST BE REGARDED AS CONTRACTUALLY
BOUND BY THE ACTS OF ITS AGENTS, WHICH IN TURN PRESUPPOSES THAT THE
UNION IS CAPABLE OF CONTRACT RELATIONS. 

OF COURSE, THE POSSIBILITY OF A STATE'S LAW BEING COUNTER TO SUCH A
LIMITED FEDERAL PROPOSITION IS HYPOTHETICAL, AND TO BASE AN ASSERTION
OF FEDERAL LAW ON SUCH A POSSIBILITY, ONE NEVER CONSIDERED BY CONGRESS,
IS AN ARTIFICE.  AND WERE A STATE EVER TO ADOPT A CONTRARY ATTITUDE,
ITS REASONS FOR SO DOING MIGHT BE SUCH THAT CONGRESS WOULD NOT BE
WILLING TO DISREGARD THEM.  BUT THESE DIFFICULTIES ARE INHERENT IN ANY
ATTEMPT TO EXPAND SEC. 301 SUBSTANTIVELY TO MEET CONSTITUTIONAL
REQUIREMENTS. 

EVEN IF THIS LIMITED FEDERAL "RIGHT" WERE READ INTO SEC. 301, A
SERIOUS CONSTITUTIONAL QUESTION WOULD STILL BE PRESENT.  IT DOES
ELEVATE THE SITUATION TO ONE CLOSELY ANALOGOUS TO THAT PRESENTED IN
OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738.  (FN6)  SECTION 301
WOULD, UNDER THIS VIEW, IMPLY THAT A UNION IS TO BE VIEWED AS A
JURISTIC ENTITY FOR PURPOSES OF ACQUIRING CONTRACT RIGHTS UNDER A
COLLECTIVE-BARGAINING AGREEMENT, AND THAT IT HAS THE RIGHT TO ENTER
INTO SUCH A CONTRACT AND TO SUE UPON IT.  THIS WAS ALL THAT WAS
IMMEDIATELY AND EXPRESSLY INVOLVED IN THE OSBORN CASE, ALTHOUGH THE
HISTORICAL SETTING WAS VASTLY DIFFERENT, AND THE JURISTIC ENTITY IN
THAT CASE WAS COMPLETELY THE CREATURE OF FEDERAL LAW, ONE ENGAGED IN
CARRYING OUT ESSENTIAL GOVERNMENTAL FUNCTIONS.  MOST OF THESE SPECIAL
CONSIDERATIONS HAD DISAPPEARED, HOWEVER, AT THE TIME AND IN THE
CIRCUMSTANCES OF THE DECISION OF THE PACIFIC RAILROAD REMOVAL CASES,
115 U.S. 1, SEE P. 471, SUPRA. THERE IS FORCE IN THE VIEW THAT REGARDS
THE LATTER AS A "SPORT" AND FINDS THAT THE COURT HAS SO VIEWED IT.  SEE
MISHKIN, 53 COL. L. REV., AT 160, N. 24, CITING GULLY V. FIRST NATIONAL
BANK, 299 U.S. 109, 113-114 ("ONLY RECENTLY WE SAID AFTER FULL
CONSIDERATION THAT THE DOCTRINE OF THE CHARTER CASES WAS TO BE TREATED
AS EXCEPTIONAL, THOUGH WITHIN THEIR SPECIAL FIELD THERE WAS NO THOUGHT
TO DISTURB THEM."), AND PUERTO RICO V. RUSSELL & CO., 288 U.S. 476,
485; SEE ALSO MR. JUSTICE HOLMES, IN SMITH V. KANSAS CITY TITLE & TRUST
CO., 255 U.S. 180, 214-215 (DISSENTING OPINION).  THE QUESTION IS
WHETHER WE SHOULD NOW SO CONSIDER IT AND REFUSE TO APPLY ITS HOLDING TO
THE PRESENT SITUATION. 

I BELIEVE THAT WE SHOULD NOT EXTEND THE PRECEDENTS OF OSBORN AND THE
PACIFIC RAILROAD REMOVAL CASES TO THIS CASE, EVEN THOUGH THERE BE SOME
ELEMENTS OF ANALYTICAL SIMILARITY.  OSBORN, THE FOUNDATION FOR THE
REMOVAL CASES, APPEARS TO HAVE BEEN BASED ON PREMISES THAT TODAY,
VIEWED IN THE LIGHT OF THE JURISDICTIONAL PHILOSOPHY OF GULLY V. FIRST
NATIONAL BANK, SUPRA, ARE SUBJECT TO CRITICISM.  THE BASIC PREMISE WAS
THAT EVERY CASE IN WHICH A FEDERAL QUESTION MIGHT ARISE MUST BE CAPABLE
OF BEING COMMENCED IN THE FEDERAL COURTS, AND WHEN SO COMMENCED IT
MIGHT, BECAUSE JURISDICTION MUST BE JUDGED AT THE OUTSET, BE CONCLUDED
THERE DESPITE THE FACT THAT THE FEDERAL QUESTION WAS NEVER RAISED. 
MARSHALL'S HOLDING WAS UNDOUBTEDLY INFLUENCED BY HIS FEAR THAT THE BANK
MIGHT SUFFER HOSTILE TREATMENT IN THE STATE COURTS THAT COULD NOT BE
REMEDIED BY AN APPEAL ON AN ISOLATED FEDERAL QUESTION.  THERE IS
NOTHING IN ARTICLE III THAT AFFIRMATIVELY SUPPORTS THE VIEW THAT
ORIGINAL JURISDICTION OVER CASES INVOLVING FEDERAL QUESTIONS MUST
EXTEND TO EVERY CASE IN WHICH THERE IS THE POTENTIALITY OF APPELLATE
JURISDICTION.  WE ALSO HAVE BECOME FAMILIAR WITH REMOVAL PROCEDURES
THAT COULD BE ADAPTED TO ALLEVIATE ANY REMAINING FEARS BY PROVIDING FOR
REMOVAL TO A FEDERAL COURT WHENEVER A FEDERAL QUESTION WAS RAISED.  IN
VIEW OF THESE DEVELOPMENTS, WE WOULD NOT BE JUSTIFIED IN PERPETUATING A
PRINCIPLE THAT PERMITS ASSERTION OF ORIGINAL FEDERAL JURISDICTION ON
THE REMOTE POSSIBILITY OF PRESENTATION OF A FEDERAL QUESTION.  INDEED,
CONGRESS, BY LARGELY WITHDRAWING THE JURISDICTION THAT THE PACIFIC
RAILROAD REMOVAL CASES RECOGNIZED, AND THIS COURT, BY REFUSING TO
PERPETUATE IT UNDER GENERAL GRANTS OF JURISIDICTION, SEE GULLY V. FIRST
NATIONAL BANK, SUPRA, HAVE ALREADY DONE MUCH TO RECOGNIZE THE CHANGED
ATMOSPHERE. 

ANALYSIS OF THE BANKRUPTCY POWER ALSO REVEALS A SUPERFICIAL ANALOGY
TO SEC. 301.  THE TRUSTEE ENFORCES A CAUSE OF ACTION ACQUIRED UNDER
STATE LAW BY THE BANKRUPT.  FEDERAL LAW MERELY PROVIDES FOR THE
APPOINTMENT OF THE TRUSTEE, VESTS THE CAUSE OF ACTION IN HIM, AND
CONFERS JURISDICTION ON THE FEDERAL COURTS.  SECTION 301 SIMILARLY
TAKES THE RIGHTS AND LIABILITIES WHICH UNDER STATE LAW ARE VESTED
DISTRIBUTIVELY IN THE INDIVIDUAL MEMBERS OF A UNION AND VESTS THEM IN
THE UNION FOR PURPOSES OF ACTIONS IN FEDERAL COURTS, WHEREIN THE UNIONS
ARE AUTHORIZED TO SUE AND BE SUED AS AN ENTITY.  WHILE THE AUTHORITY OF
THE TRUSTEE DEPENDS ON THE EXISTENCE OF A BANKRUPT AND ON THE PROPRIETY
OF THE PROCEEDINGS LEADING TO THE TRUSTEE'S APPOINTMENT, BOTH OF WHICH
DEPEND ON FEDERAL LAW, THERE ARE SIMILAR FEDERAL PROPOSITIONS THAT MAY
BE ESSENTIAL TO AN ACTION UNDER SEC. 301.  THUS, THE VALIDITY OF THE
CONTRACT MAY IN ANY CASE BE CHALLENGED ON THE GROUND THAT THE LABOR
ORGANIZATION NEGOTIATING IT WAS NOT THE REPRESENTATIVE OF THE EMPLOYEES
CONCERNED, A QUESTION THAT HAS BEEN HELD TO BE FEDERAL, LA CROSSE
TELEPHONE CORP. V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 336 U.S. 18,
OR ON THE GROUND THAT SUBSEQUENT CHANGE IN THE REPRESENTATIVE STATUS OF
THE UNION HAS AFFECTED THE CONTINUED VALIDITY OF THE AGREEMENT. 
PERHAPS ALSO THE QUALIFICATIONS IMPOSED ON A UNION'S RIGHT TO UTILIZE
THE FACILITIES OF THE NATIONAL LABOR RELATIONS BOARD, DEPENDENT ON THE
FILING OF NON-COMMUNIST AFFIDAVITS REQUIRED BY SEC. 9(H) AND THE
INFORMATION AND REPORTS REQUIRED BY SEC. 9(F) AND (G), MIGHT BE READ AS
RESTRICTIONS ON THE RIGHT OF THE UNION TO SUE UNDER SEC. 301, AGAIN
PROVIDING A FEDERAL BASIS FOR CHALLENGE TO THE UNION'S AUTHORITY. 
CONSEQUENTLY, WERE THE BANKRUPTCY CASES TO BE VIEWED AS DEPENDENT
SOLELY ON THE BACKGROUND EXISTENCE OF FEDERAL QUESTIONS, THERE WOULD BE
LITTLE ANALYTICAL BASIS FOR DISTINGUISHING ACTIONS UNDER SEC. 301.  BUT
THE BANKRUPTCY DECISIONS MAY BE JUSTIFIED BY THE SCOPE OF THE
BANKRUPTCY POWER, WHICH MAY BE DEEMED TO SWEEP WITHIN ITS SCOPE
INTERESTS ANALYTICALLY OUTSIDE THE "FEDERAL QUESTION" CATEGORY, BUT
SUFFICIENTLY RELATED TO THE MAIN PURPOSE OF BANKRUPTCY TO CALL FOR
COMPREHENSIVE TREATMENT.  SEE NATIONAL MUTUAL INS. CO. V. TIDEWATER
TRANSFER CO., 337 U.S. 582, 652, N. 3 (CONCURRING IN PART, DISSENTING
IN PART).  ALSO, ALTHOUGH A PARTICULAR SUIT MAY BE BROUGHT BY A TRUSTEE
IN A DISTRICT OTHER THAN THE ONE IN WHICH THE PRINCIPAL PROCEEDINGS ARE
PENDING, IF ALL THE SUITS BY THE TRUSTEE, EVEN THOUGH IN MANY FEDERAL
COURTS, ARE REGARDED AS ONE LITIGATION FOR THE COLLECTION AND
APPORTIONMENT OF THE BANKRUPT'S PROPERTY, A PARTICULAR SUIT BY THE
TRUSTEE, UNDER STATE LAW, TO RECOVER A SPECIFIC PIECE OF PROPERTY MIGHT
BE ANALOGIZED TO THE ANCILLARY OR PENDENT JURISDICTION CASES IN WHICH,
IN THE DISPOSITION OF A CAUSE OF ACTION, FEDERAL COURTS MAY PASS ON
STATE GROUNDS FOR RECOVERY THAT ARE JOINED TO FEDERAL GROUNDS.  SEE
HURN V. OURSLER, 289 U.S. 238; SILER V. LOUISVILLE & NASHVILLE R. CO.,
213 U.S. 175; BUT SEE MISHKIN, 53 COL. L. REV., AT 194, N. 161. 

IF THERE IS IN THE PHRASE "ARISING UNDER THE LAWS OF THE UNITED
STATES" LEEWAY FOR EXPANSION OF OUR CONCEPTS OF JURISDICTION, THE
HISTORY OF ARTICLE III SUGGESTS THAT THE AREA IS NOT GREAT AND THAT IT
WILL REQUIRE THE PRESENCE OF SOME SUBSTANTIAL FEDERAL INTEREST, ONE OF
GREATER WEIGHT AND DIGNITY THAN QUESTIONABLE DOUBT CONCERNING THE
EFFECTIVENESS OF STATE PROCEDURE.  THE BANKRUPTCY CASES MIGHT POSSIBLY
BE VIEWED AS SUCH AN EXPANSION.  BUT EVEN SO, NOT MERELY CONVENIENT
JUDICIAL ADMINISTRATION BUT THE WHOLE PURPOSE OF THE CONGRESSIONAL
LEGISLATIVE PROGRAM - CONSERVATION AND EQUITABLE DISTRIBUTION OF THE
BANKRUPT'S ESTATE IN CARRYING OUT THE CONSTITUTIONAL POWER OVER
BANKRUPTCY - REQUIRED THE AVAILABILITY OF FEDERAL JURISDICTION TO AVOID
EXPENSE AND DELAY.  NOTHING PERTAINING TO SEC. 301 SUGGESTS VESTING THE
FEDERAL COURTS WITH SWEEPING POWER UNDER THE COMMERCE CLAUSE COMPARABLE
TO THAT VESTED IN THE FEDERAL COURTS UNDER THE BANKRUPTCY POWER. 

IN THE WISE DISTRIBUTION OF GOVERNMENTAL POWERS, THIS COURT CANNOT DO
WHAT A PRESIDENT SOMETIMES DOES IN RETURNING A BILL TO CONGRESS.  WE
CANNOT RETURN THIS PROVISION TO CONGRESS AND RESPECTFULLY REQUEST THAT
BODY TO FACE THE RESPONSIBILITY PLACED UPON IT BY THE CONSTITUTION TO
DEFINE THE JURISDICTION OF THE LOWER COURTS WITH SOME PARTICULARITY AND
NOT TO LEAVE THESE COURTS AT LARGE.  CONFRONTED AS I AM, I REGRETFULLY
HAVE NO CHOICE.  FOR ALL THE REASONS ELABORATED IN THIS DISSENT, EVEN
READING INTO SEC. 301 THE LIMITED FEDERAL RIGHTS CONSISTENT WITH THE
PURPOSES OF THAT SECTION, I AM IMPELLED TO THE VIEW THAT IT IS
UNCONSTITUTIONAL IN CASES SUCH AS THE PRESENT ONES WHERE IT PROVIDES
THE SOLE BASIS FOR EXERCISE OF JURISDICTION BY THE FEDERAL COURTS. 
(FN7) 

FN1  "SEC.  301.  (A)  SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN
EMPLOYER AND A LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY
AFFECTING COMMERCE AS DEFINED IN THIS ACT, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHICH REPRESENTS EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE AS DEFINED IN THIS ACT AND ANY EMPLOYER
WHOSE ACTIVITIES AFFECT COMMERCE AS DEFINED IN THIS ACT SHALL BE BOUND
BY THE ACTS OF ITS AGENTS.  ANY SUCH LABOR ORGANIZATION MAY SUE OR BE
SUED AS AN ENTITY AND IN BEHALF OF THE EMPLOYEES WHOM IT REPRESENTS IN
THE COURTS OF THE UNITED STATES.  ANY MONEY JUDGMENT AGAINST A LABOR
ORGANIZATION IN A DISTRICT COURT OF THE UNITED STATES SHALL BE
ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST ITS
ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER OR
HIS ASSETS. 

"(C)  FOR THE PURPOSES OF ACTIONS AND PROCEEDINGS BY OR AGAINST LABOR
ORGANIZATIONS IN THE DISTRICT COURTS OF THE UNITED STATES, DISTRICT
COURTS SHALL BE DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1)
IN THE DISTRICT IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL
OFFICE, OR (2) IN ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR
AGENTS ARE ENGAGED IN REPRESENTING OR ACTING FOR EMPLOYEE MEMBERS. 
"(D)  THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS OF ANY
COURT OF THE UNITED STATES UPON AN OFFICER OR AGENT OF A LABOR
ORGANIZATION, IN HIS CAPACITY AS SUCH, SHALL CONSTITUTE SERVICE UPON
THE LABOR ORGANIZATION. 

"(E)  FOR THE PURPOSES OF THIS SECTION, IN DETERMINING WHETHER ANY
PERSON IS ACTING AS AN 'AGENT' OF ANOTHER PERSON SO AS TO MAKE SUCH
OTHER PERSON RESPONSIBLE FOR HIS ACTS, THE QUESTION OF WHETHER THE
SPECIFIC ACTS PERFORMED WERE ACTUALLY AUTHORIZED OR SUBSEQUENTLY
RATIFIED SHALL NOT BE CONTROLLING." 

FN2  AT THE SEAMEN'S UNION CONVENTION IN 1923, AT A TIME WHEN THE
PROPOSED ARBITRATION ACT CONTAINED NO EXEMPTIONS, FURUSETH, AFTER
REFERRING TO THE EFFECT OF THE ACT ON INDIVIDUAL CONTRACTS, STATED: 

"SO FAR WE HAVE DEALT WITH THE INDIVIDUAL.  WHAT ABOUT THOSE, WHO
SHALL SEEK TO PROTECT THEMSELVES THROUGH MUTUAL AID?  SOME
ORGANIZATIONS ARE VERY STRONG IN THEIR COHESIVENESS.  CANNOT THOSE
ORGANIZATIONS SAVE NOT ONLY THE INDIVIDUALS BUT THEMSELVES? 

"THE SUPREME COURT HAS DECIDED THAT VOLUNTARY ORGANIZATIONS MAY BE
SUED.  IF THEY SHALL ENTER INTO AN AGREEMENT CONTAINING AN ARBITRATION
CLAUSE, THERE CAN BE LITTLE DOUBT THAT THE ORGANIZATION WILL BE
BOUND."  PROCEEDINGS OF THE 26TH ANNUAL CONVENTION OF THE INTERNATIONAL
SEAMEN'S UNION OF AMERICA, P. 204 (1923). 

THE REFERENCE WAS TO THIS COURT'S DECISION, THE PREVIOUS YEAR, IN
UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344. 

FN3 IN VIEW OF THE COURSE THAT THIS LITIGATION HAS TAKEN, I PUT TO
ONE SIDE THE BEARING OF THE NORRIS-LAGUARDIA ACT.  IT IS NOT THE FIRST
TIME THAT UNIONS HAVE CONVENIENTLY DISREGARDED, WHEN IT SUITED AN
IMMEDIATE END, THEIR VEHEMENT FEELINGS THAT SECURED THE RESTRICTION
UPON THE FEDERAL COURTS IN GRANTING INJUNCTIONS IN LABOR DISPUTES. 
CANDOR COMPELS ME TO SAY THAT I DO NOT THINK THAT THE CONCLUSION
REACHED BY JUDGE BAILEY ALDRICH IN LOCAL 205 V. GENERAL ELECTRIC CO.,
129 F. SUPP. 665, HAS BEEN PERSUASIVELY MET. 

FN4  OSBORN MIGHT POSSIBLY BE LIMITED ON THE GROUND THAT A FEDERAL
INSTRUMENTALITY, THE BANK OF THE UNITED STATES, WAS INVOLVED, SEE N. 5,
INFRA, BUT SUCH AN EXPLANATION COULD NOT SUFFICE TO NARROW THE HOLDING
IN THE PACIFIC RAILROAD REMOVAL CASES. 

FN5  TO BE SURE, THE COURT UPHELD THE REMOVAL STATUTE FOR SUITS OR
PROSECUTIONS COMMENCED IN A STATE COURT AGAINST FEDERAL REVENUE
OFFICERS ON ACCOUNT OF ANY ACT COMMITTED UNDER COLOR OF OFFICE. 
TENNESSEE V. DAVIS, 100 U.S. 257.  THE COURT, HOWEVER, CONSTRUED THE
ACTION OF CONGRESS IN DEFINING THE POWERS OF REVENUE AGENTS AS GIVING
THEM A SUBSTANTIVE DEFENSE AGAINST PROSECUTION UNDER STATE LAW FOR
COMMISSION OF ACTS "WARRANTED BY THE FEDERAL AUTHORITY THEY POSSESS." 
ID., AT 263.  THAT PUT FEDERAL LAW IN THE FOREFRONT AS A DEFENSE.  IN
ANY EVENT, THE FACT THAT OFFICERS OF THE FEDERAL GOVERNMENT WERE
PARTIES MAY BE CONSIDERED SUFFICIENT TO AFFORD ACCESS TO THE FEDERAL
FORUM.  SEE IN RE DEBS, 158 U.S. 564, 584-586; MISHKIN, 53 COL. L.
REV., AT 193:  "WITHOUT DOUBT, A FEDERAL FORUM SHOULD BE AVAILABLE FOR
ALL SUITS INVOLVING THE GOVERNMENT, ITS AGENTS AND INSTRUMENTALITIES,
REGARDLESS OF THE SOURCE OF THE SUBSTANTIVE RULE." 

FN6  ENUNCIATION OF SUCH A REQUIREMENT COULD IN FACT BRING FEDERAL
LAW SOMEWHAT FURTHER TO THE FOREFRONT THAN WAS TRUE OF OSBORN, THE
PACIFIC RAILROAD REMOVAL CASES, OR THE BANKRUPTCY CASES IN THE FEW
CASES WHERE AN ASSERTION COULD BE MADE THAT STATE LAW DID NOT
SUFFICIENTLY RECOGNIZE COLLECTIVE AGREEMENTS AS CONTRACTS.  BUT THERE
APPEARS TO BE NO STATE THAT TODAY POSSESSES SUCH A RULE.  MOST AND
PROBABLY ALL CASES ARISING UNDER SEC.  301 - CERTAINLY THE PRESENT ONES
- WOULD NEVER PRESENT SUCH A PROBLEM. 

FN7  IN NO. 276, RESPONDENT'S MOTION IN THE COURT OF APPEALS TO AMEND
ITS COMPLAINT TO SHOW DIVERSITY OF CITIZENSHIP WAS DENIED ON ALTERNATE
GROUNDS OF POSSIBLE MOOTNESS AND RULE 17(B)'S REFERENCE OF QUESTIONS OF
CAPACITY TO SUE TO STATE LAW.  THE VIEW OF SEC. 301 THAT I HAVE SET
FORTH WOULD PERMIT THAT SECTION TO BE APPLIED CONSTITUTIONALLY TO
SITUATIONS, SUCH AS DIVERSITY OF CITIZENSHIP, WHERE THERE IS
JURISDICTION IN THE FEDERAL COURTS APART FROM SEC. 301.  I WOULD
THEREFORE REMAND THIS CASE TO PERMIT THE AMENDMENT ALLEGING DIVERSITY
OF CITIZENSHIP. 

                        APPENDIX - LEGISLATIVE HISTORY. 

I. THE CASE BILL (H.R. 4908, 79TH CONG., 2D SESS.). 

                       (THE FEDERAL MEDIATION ACT OF 1946.) 

A. LEGISLATIVE HISTORY IN THE HOUSE: 

1.  HEARINGS BEFORE THE COMMITTEE ON LABOR ON H.R. 4908, 79TH CONG.,
1ST SESS.: 

A. H.R. 4908, AS CONSIDERED BY COMMITTEE, PROVIDED FOR FACT-FINDING
BOARDS.  IT HAD NO PROVISION CONCERNING SUITS ON COLLECTIVE-BARGAINING
CONTRACTS. 

B. DURING THESE HEARINGS, THERE WAS, HOWEVER, SOME CONCERN WITH
BREACH OF SUCH CONTRACTS.  DESPITE THE FILING OF TWO MEMORANDA
DETAILING THE PROBLEMS OF ENFORCEMENT OF AGREEMENTS AGAINST A UNION
(PP. 89, 96), THERE WAS NO ELUCIDATION OF THE PROBLEM.  THE PREVALENCE
OF VIOLATION WAS NOTED AND THE DESIRE TO DO SOMETHING TO PROMOTE
ENFORCEABILITY EXPRESSED.  (PP. 15, 27, 28, 38, 41, 68, 73, 84, 88, 97,
101, 113.) 

2.  THE HOUSE REPORT CONTAINED NO COMMENT ON THE PROBLEM.  (H.R. REP.
NO. 1493, 79TH CONG., 2D SESS.) 

3.  THE BILL, AS INTRODUCED ON THE HOUSE FLOOR (92 CONG. REC. 765): 

"SEC. 10.  BINDING EFFECT OF COLLECTIVE-BARGAINING CONTRACTS:  ALL
COLLECTIVE-BARGAINING CONTRACTS SHALL BE MUTUALLY AND EQUALLY BINDING
AND ENFORCEABLE EITHER AT LAW OR IN EQUITY AGAINST EACH OF THE PARTIES
THERETO, ANY OTHER LAW TO THE CONTRARY NOTWITHSTANDING.  IN THE EVENT
OF A BREACH OF ANY SUCH CONTRACT OR OF ANY AGREEMENT CONTAINED IN SUCH
CONTRACT BY EITHER PARTY THERETO, THEN, IN ADDITION TO ANY OTHER REMEDY
OR REMEDIES EXISTING EITHER IN LAW OR EQUITY, A SUIT FOR DAMAGES FOR
SUCH BREACH OR FOR INJUNCTIVE RELIEF IN EQUITY MAY BE MAINTAINED BY THE
OTHER PARTY OR PARTIES IN ANY UNITED STATES DISTRICT COURT HAVING
JURISDICTION OF THE PARTIES.  IF THE DEFENDANT AGAINST WHOM ACTION IS
SOUGHT TO BE COMMENCED AND MAINTAINED IS A LABOR ORGANIZATION, SUCH
ACTION MAY BE FILED IN THE UNITED STATES DISTRICT COURT OF ANY DISTRICT
WHEREIN ANY OFFICER OF SUCH LABOR ORGANIZATION RESIDES OR MAY BE
FOUND." 

4.  HOUSE DEBATE: 

A. GENERAL COMMENT ON THE DESIRABILITY OF MUTUAL ENFORCEABILITY OF
CONTRACTS:  92 CONG.  REC. 662, 668, 677, 679, 684, 686, 753, 767. 

B. REPRESENTATIVE FRANCIS CASE'S ONLY COMMENTS WERE NOT PERTINENT. 
ID., AT 680, 765. 

C. REPRESENTATIVE VORYS, IN OFFERING CORRECTIVE AMENDMENTS TO SECTION
10, STATED: 

"WE DO CREATE, IF THERE IS ANY DOUBT ABOUT ITS PRESENT EXISTENCE, AN
ACTION FOR DAMAGES FOR BREACH OF CONTRACT AGAINST A LABOR ORGANIZATION
OR AN EMPLOYER, WHICH MEANS THAT EITHER PARTY, THE LABOR ORGANIZATION
OR THE EMPLOYER, MAY HAVE THE BENEFIT OF A TRIAL BY JURY IN ANY SUCH
ACTION. 

"  ...  SINCE WE ARE ATTEMPTING TO CREATE NO NEW RIGHT IN THE EQUITY
SIDE, THERE IS NO REASON TO REFER TO THE EQUITY SIDE  ...  . 

     *         *         *         *         * 

"  ...  IT WILL TAKE AWAY ANY PARTICULAR BENEFITS OR ADVANTAGES OF
ONE PARTY OR THE OTHER THAT NOW EXIST UNDER OTHER LAWS WHICH KEEP THE
OBLIGATIONS FROM BEING EQUAL AND MUTUAL; WILL NOT GIVE ANY NEW RIGHTS
BY WAY OF INJUNCTION TO EITHER PARTY BUT WILL SPECIFICALLY PROVIDE FOR
AN ACTION AT LAW FOR DAMAGES TO ENFORCE ANY ACT OF VIOLATION OF THE
CONTRACTS."  (ID., AT 853.) 

D. REPRESENTATIVE THOM, OPPOSING SECTION 10 AS AN INCURSION ON
STATES' RIGHTS, APPEARS TO HAVE BEEN THE ONLY MEMBER TO HAVE FELT THAT
COLLECTIVE BARGAINING CONTRACTS ALREADY WERE ENFORCEABLE IN STATE AND
FEDERAL COURTS.  ID., AT 847. 

5.  AS IT FINALLY PASSED THE HOUSE, SECTION 10 READ: 

"SEC. 10.  BINDING EFFECT OF COLLECTIVE-BARGAINING CONTRACTS.  - ALL
COLLECTIVE-BARGAINING CONTRACTS SHALL BE MUTUALLY AND EQUALLY BINDING
AND ENFORCEABLE AGAINST EACH OF THE PARTIES THERETO, ANY OTHER LAW TO
THE CONTRARY NOTWITHSTANDING.  IN THE EVENT OF A BREACH OF ANY SUCH
CONTRACT OR OF ANY AGREEMENT CONTAINED IN SUCH CONTRACT BY EITHER PARTY
THERETO, THEN, IN ADDITION TO ANY OTHER REMEDY OR REMEDIES EXISTING, A
SUIT FOR DAMAGES FOR SUCH BREACH MAY BE MAINTAINED BY THE OTHER PARTY
OR PARTIES IN ANY STATE OR UNITED STATES DISTRICT COURT HAVING
JURISDICTION OF THE PARTIES." 

B. LEGISLATIVE HISTORY IN THE SENATE: 

1.  HEARINGS BEFORE SENATE COMMITTEE ON EDUCATION AND LABOR ON S.
1661: 

A. HEARINGS WERE HELD ON A COMPANION BILL TO THE FACT-FINDING BILL ON
WHICH HOUSE HEARINGS WERE HELD.  THE CASE BILL HAD NOT YET PASSED THE
HOUSE. 

B. AS IN THE HOUSE, HOWEVER, CONCERN WAS EXPRESSED OVER A GENERAL
IMPRESSION THAT UNIONS WERE NOT SUBJECT TO SUITS FOR DAMAGES FOR BREACH
OF CONTRACT TO THE SAME EXTENT AS EMPLOYERS.  (PP. 138, 168, 354, 383,
400, 554, 623, 662, 740.)  FOR THE FIRST TIME, HOWEVER, ORAL TESTIMONY
DIRECTED THE LEGISLATORS TO THE PRIMARY SOURCE OF THE PROBLEM.  THIS
TESTIMONY, WITH A SUPPORTING MEMORANDUM, INDICATED THAT THE PROBLEM LAY
IN THE STATUS OF THE UNION AS AN UNINCORPORATED ASSOCIATION.  THIS
MEMORANDUM, HOWEVER, ALSO POINTED OUT THAT IN SOME JURISDICTIONS THE
UNION WAS VIEWED AS ACTING AS AGENT OF THE INDIVIDUAL EMPLOYEES IN
NEGOTIATING THE COLLECTIVE AGREEMENT, AND THUS WAS NOT VIEWED AS
HAVING, EVEN IN THEORY, ANY RIGHTS OR OBLIGATIONS ON THE CONTRACT.  (P.
411.) 

2.  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
EDUCATION AND LABOR ON H.R.  4908 (AS IT HAD PASSED THE HOUSE): 

A. "MR. CASE.  SECTION 10, OPENING THE MISCELLANEOUS PROVISIONS OF
THE BILL, IS VERY BRIEF, AND I WOULD LIKE TO READ IT BECAUSE I THINK IT
SPEAKS FOR ITSELF. 

     *         *        *         *         * 

"IT ALMOST WOULD SEEM UNNECESSARY TO SAY THAT CONTRACTS ENTERED INTO
BETWEEN TWO PARTIES CALL FOR MUTUAL OBLIGATIONS AND MUTUAL OBSERVANCE. 
THAT IS IMPLICIT IN ALL CONTRACTS, WHETHER EXPRESSED OR NOT, BY
STATUTORY PROVISIONS SAYING THEY ARE EQUALLY BINDING AND ENFORCEABLE;
BUT BECAUSE OF SOME INTERPRETATIONS OR SOME THEORIES THAT THEY ARE NOT
BINDING WHERE LABOR ORGANIZATIONS ARE INVOLVED, I THOUGHT IN HARMONY
WITH WHAT THE PRESIDENT SAID HERE - RECOGNIZING A PRACTICAL SITUATION
FOR WHICH WE HAVE TO FIND METHODS NOT ONLY OF PEACEFUL NEGOTIATION BUT
ALSO OF INSURING THAT THE CONTRACTS ONCE MADE MUST BE LIVED UP TO - WE
SHOULD HAVE A SECTION IN THE BILL ON THAT SUBJECT. 

"THIS SECTION WAS MODIFIED SOMEWHAT IN THE CONSIDERATION IN THE
HOUSE.  ORIGINALLY I THINK WE HAD IN A PROVISION AUTHORIZING
RESTRAINING ORDERS, BUT THAT WAS ELIMINATED  ...  WITH THE CONSENT OF
MYSELF AND OTHERS WHO HAD BEEN STUDYING THE BILL, WITH THE THOUGHT THAT
THIS POSSIBLY MET THE SITUATION BY AUTHORIZING A SUIT FOR DAMAGES FOR
BREACH OF CONTRACT. 

"SENATOR TAFT.  MR. CASE, THERE ARE ONE OR TWO MINOR QUESTIONS ON
THAT.  IT SAYS: 

"ALL COLLECTIVE-BARGAINING CONTRACTS SHALL BE  ...  ENFORCEABLE BY A
SUIT IN A STATE OR A UNITED STATES DISTRICT COURT HAVING JURISDICTION
OF THE PARTIES. 

"WOULD YOU INTEND TO GIVE JURISDICTION TO THE UNITED STATES DISTRICT
COURT IN PURELY LOCAL COLLECTIVE-BARGAINING CONTRACTS NOT DEALING WITH
INTERSTATE COMMERCE?  OUGHT NOT THAT BE LIMITED IN SOME WAY? 

"MR. CASE.  THAT MAY BE.  THERE ARE OTHER PLACES IN THE BILL WHERE WE
WORKED IN, FIRST OF ALL, A DECLARATION OF PUBLIC INTEREST, AND MY
THOUGHT THERE WAS THAT RESTING ON THE GENERAL WELFARE CLAUSE, IT WAS
CLEARLY WITHIN THE AUTHORITY OF CONGRESS WHERE SUBSTANTIAL PUBLIC
INTEREST WAS INVOLVED TO TAKE COGNIZANCE  ...  . 

"SENATOR TAFT  ...  I WOULD THINK THAT PROBABLY THE JURISDICTION OF
THE UNITED STATES COURT SHOULD BE CONFINED TO THE TYPE OF DISPUTE WHICH
IS INTERSTATE IN CHARACTER AND UNDER THE JURISDICTION OF THE NATIONAL
LABOR RELATIONS BOARD. 

"MR. CASE.  I CERTAINLY WOULD HAVE NO OBJECTION TO A CLARIFICATION ON
THAT POINT  ...  . 

"OF COURSE, THE SENATOR IS AWARE OF THE FACT THAT THE INTERPRETATION
OF THE SUPREME COURT RECENTLY, ON THE SUBJECT OF INTERSTATE COMMERCE,
HAS BEEN SO BROAD THAT ANYTHING WHICH AFFECTS INTERSTATE COMMERCE,
WHICH IS TECHNICALLY INTERSTATE COMMERCE HAS BEEN RULED TO BE
INTERSTATE COMMERCE. 

"SENATOR TAFT.  ON THE OTHER HAND, THERE IS STILL A FIELD OF
INTRASTATE COMMERCE.  IT DOESN'T DESTROY IT, ALTHOUGH IT GOES A LONG
WAY. 

"MR. CASE.  AS FAR AS I AM CONCERNED, I WOULD BE GLAD TO PROTECT THAT
VANISHING FIELD OF INTRASTATE COMMERCE, AND IF THE SENATORS WANTED TO
CLARIFY THAT I WOULD HAVE NO OBJECTION. 

"SENATOR TAFT.  THE OTHER QUESTION RELATING TO THAT SECTION WHICH
OCCURS TO ME IS THE EFFECT OF THIS 'BINDING AND ENFORCEABLE,' AS
RELATED TO THE INCORPORATION OF UNIONS.  AS I UNDERSTAND IT, A
COLLECTIVE-BARGAINING AGREEMENT IS ALREADY MUTUALLY AND EQUALLY BINDING
AND ENFORCEABLE.  I CAN'T THINK OF ANY CIRCUMSTANCE WHERE IT WOULD NOT
BE.  BUT THE PROBLEM SEEMS TO BE A PRACTICAL PROBLEM, IN MANY STATES,
OF SUCCESSFULLY SUING A UNION WHICH IS NOT INCORPORATED.  I DON'T TAKE
IT THAT THIS SECTION WOULD CHANGE THE REQUIREMENTS IN A STATE, WE WILL
SAY, TO MAKE EVERY MEMBER OF THE UNION A PARTY.  IT DOESN'T REALLY MEET
THAT PARTICULAR DIFFICULTY, WHICH SEEMS TO BE THE CHIEF DIFFICULTY IN
ENFORCING COLLECTIVE-BARGAINING AGREEMENTS.    "MR. CASE.  I THINK THAT
WHAT THIS WOULD DO WOULD BE TO MAKE THE OFFICERS OF A COLLECTIVE
BARGAINING AGENT SUABLE.  I DO NOT THINK IT WOULD EXTEND TO INDIVIDUAL
MEMBERS OF THE UNION, BECAUSE THE LANGUAGE IS THAT THE CONTRACT IS MADE
'MUTUALLY AND EQUALLY BINDING AND ENFORCEABLE AGAINST EACH OF THE
PARTIES THERETO' AND UNDER THE WAGNER ACT THE PARTY TO THE CONTRACT IS
THE RECOGNIZED BARGAINING AGENT. 

"SENATOR TAFT.  NO; THE RECOGNIZED BARGAINING AGENT IS THE UNION, NOT
THE OFFICERS OF THE UNION; IT IS THE UNION, AND THE UNION IS USUALLY AN
UNINCORPORATED ASSOCIATION.  THE POINT I WAS TRYING TO MAKE IS THAT IF
YOU WANT TO SUE AN UNINCORPORATED ASSOCIATION IN MANY STATES IT IS
ALMOST IMPOSSIBLE TO GET THEM INTO COURT, BECAUSE THEY HAVE
REQUIREMENTS THAT YOU HAVE TO SERVE EVERY MEMBER, AND YOU CAN'T REACH
THEM, YOU CAN'T FIND THEM IN MANY CASES.  SO THE WHOLE THING IS
DELAYED, AND IT IS A LONG AND TEDIOUS PROBLEM, IF IT CAN BE DONE AT
ALL.  IN SOME STATES THAT IS NOT SO.  YOU CAN SUE AN UNINCORPORATED
ASSOCIATION BY SERVING THE OFFICERS.  BUT WE HAVE BEFORE US A BILL FROM
SENATOR BYRD REQUIRING THAT UNIONS BE INCORPORATED FOR THE PURPOSE OF
CARRYING OUT, AS I SEE IT, THE SAME PURPOSE YOU HAVE HERE, AT LEAST
PARTIALLY, AND I JUST WONDERED WHETHER THIS REALLY WAS EFFECTIVE TO
MEET THE ACTUAL DIFFICULTY TODAY IN ENFORCING COLLECTIVE-BARGAINING
AGREEMENTS. 

"MR. CASE.  WELL, THE INTENT OF IT IS TO MAKE IT POSSIBLE TO BRING
THE ACTION AGAINST THE UNION IN THE COMMON NAME OF THE ASSOCIATION. 

"SENATOR TAFT.  I DON'T SAY IT DOESN'T HAVE THAT EFFECT, BUT I DON'T
THINK IT DOES.  I DON'T THINK THAT 'OTHER LAW TO THE CONTRARY
NOTWITHSTANDING' WOULD AFFECT THE METHOD BY WHICH YOU HAD TO BRING A
SUIT AGAINST AN UNINCORPORATED ASSOCIATION. 

"SENATOR BALL.  WOULD THAT MAKE IT POSSIBLE TO SUE THE UNION AS AN
ENTITY IN THE FEDERAL COURT BY SIMPLY SERVING THE OFFICERS? 

"SENATOR TAFT.  I DON'T THINK SO, UNLESS YOU SAID SO.  YOU MIGHT
CONCEIVABLY SAY SO. 

"SENATOR BALL.  THEN THE OTHER QUESTION IS:  COULD WE, IN EFFECT,
WAIVE STATE LAWS AND MAKE THE SAME PROVISION APPLY IN STATE COURTS? 

"SENATOR TAFT.  NO; I DON'T THINK YOU CAN.  BUT THIS WOULD AUTHORIZE
SUIT TO BE BROUGHT IN THE FEDERAL COURT AND I THOUGHT THAT SHOULD BE
CONFINED TO INTERSTATE CASES. 

"MR. CASE.  FOLLOWING THE PROCEDURE PROBABLY, HOWEVER, OF THE LAW OF
THE STATE IN WHICH THE ACTION WAS BROUGHT. 

"SENATOR TAFT.  I DON'T KNOW; THAT IS A COMPLICATED QUESTION, AS YOU
KNOW, IN A FEDERAL COURT AS TO WHEN YOU HAVE TO COMPLY WITH THE STATE
LAW AND WHEN YOU DO NOT. 

"MR. CASE.  THE SENATOR IS PROBABLY MORE FAMILIAR THAN I WITH WHAT IS
CALLED THE SECOND CORONADO CASE.  I AM NOT FAMILIAR WITH THE DETAILS OF
IT, BUT AS I HAVE READ REFERENCES TO IT I THINK THERE THE SUPREME COURT
HELD THAT AN INJUNCTION COULD BE OBTAINED AGAINST A UNION AS SUCH WHERE
THE UNITED STATES WAS THE PARTY.  NOW OF COURSE, THIS SECTION DOESN'T
CARRY ANY INJUNCTIVE PROCEDURE; BUT THERE, AT LEAST, THE SUPREME COURT
SEEMED TO RECOGNIZE THAT A UNION MIGHT BE MADE THE OBJECT OF AN ACTION
AS AN ASSOCIATION WITHOUT REACHING THE INDIVIDUAL MEMBERS. 

"SENATOR TAFT.  THIS WOULD CARRY TO A CIVIL INJUNCTION PROCESS IF IT
WERE ONE GENERALLY USABLE UNDER LAWS OF EQUITY, I THINK, WHEN YOU SAY
IT IS BINDING AND ENFORCEABLE; WHATEVER THE EQUITABLE REMEDIES MIGHT BE
IN THAT STATE, OR MIGHT BE CONSIDERED PROPER BY THE COURT, COULD BE
USED. 

     *         *         *     *         * 

"SENATOR SMITH.  I WOULD LIKE TO ASK MR. CASE ONE QUESTION ON SECTION
10.  I HAVE DIFFICULTY IN SEEING HOW THAT CHANGES WHAT THE SITUATION
WOULD BE IF IT JUST WASN'T IN THERE AT ALL.  I DON'T QUITE SEE WHY WE
NEED TO PUT THAT IN THIS BILL. 

"LET ME SAY FIRST THAT I HAVE NOT STUDIED THIS CAREFULLY, SO I AM
RAISING THE QUESTION AS IT COMES TO ME. 

"MR. CASE.  THE INTENT PRIMARILY WAS TO MEET THE TECHNICAL LEGAL
DIFFICULTY THAT AT THE PRESENT TIME THE UNION ISN'T SUABLE OR
ACTIONABLE AS AN ASSOCIATION UNLESS IT IS INCORPORATED, AND TO AVOID
THE NECESSITY OF JOINING ALL MEMBERS OF THE UNION AS PARTIES. 

"SENATOR TAFT.  I WOULD SUGGEST IF THAT IS YOUR PURPOSE IT OUGHT TO
SAY SO IN SO MANY WORDS. 

"MR. CASE.  I APPRECIATE THE SENATOR'S SUGGESTION. 

"SENATOR SMITH.  THAT WAS MY DIFFICULTY.  IT DIDN'T SEEM TO ME IT DID
MAKE THAT CLEAR, IF THAT IS THE INTENT."  (PP. 8-11.) 

B. THE TECHNICAL, PROCEDURAL NATURE OF THE PROBLEM WAS ALSO STRESSED
IN TESTIMONY OF SOME OTHER WITNESSES.  SEE PP. 175-179; 198-200; 248
249. 

C. OTHER LESS DISCERNING DISCUSSION:  PP. 34, 47, 48, 110, 125, 129,
135, 144, 148, 157, 225, 237, 240, 266, 371, 372, 378, 385, 409. 

3.  SENATE REPORT (NO. 1177, 79TH CONG., 2D SESS.): 

A. MAJORITY: 

"YOUR COMMITTEE HAS ALSO CONSIDERED AND REJECTED SECTION 10 OF H.R.
4908, AS PASSED BY THE HOUSE, WHICH WOULD EXPLICITLY DECLARE THAT ALL
COLLECTIVE-BARGAINING CONTRACTS SHALL BE MUTUALLY BINDING AND
ENFORCEABLE BY THE PARTIES THERETO.  IN THE FIRST PLACE, THIS PROPOSAL
APPEARS TO BE BASED UPON A MISAPPREHENSION AS TO THE LEGAL
RESPONSIBILITY OF THE PARTIES UNDER SUCH CONTRACTS.  COLLECTIVE
BARGAINING AGREEMENTS ARE AT PRESENT LEGALLY ENFORCEABLE IN THE COURTS,
AND IN THE FEDERAL COURTS, IF JURISDICTION IS OTHERWISE ESTABLISHED
ACCORDING TO APPLICABLE LAW, UNIONS MAY BE SUED IN THEIR OWN NAMES
UNDER THE DOCTRINE OF THE FIRST CORONADO CASE (UNITED MINE WORKERS V.
CORONADO COAL COMPANY, 259 U.S. 344).  LEGALLY, THEREFORE, THE PROPOSED
PROVISION IS UNNECESSARY.  PRACTICALLY, IT PRESENTS SERIOUS DANGERS. 
BY OFFERING EASY ACCESS TO THE COURTS IN CASES WHERE A BREACH OF A
COLLECTIVE-BARGAINING AGREEMENT IS ALLEGED, IT WOULD ACT AS AN
INDUCEMENT TO LITIGATE EVERY ALLEGED GRIEVANCE, AND WOULD RESULT IN A
FLOOD OF LITIGATION MAKING THE COURTS AGAIN THE BATTLEFIELD FOR
INDUSTRIAL DISPUTES, INCREASING RATHER THAN ELIMINATING THE ACRIMONY
AND CONFLICT BETWEEN THE PARTIES.  IN ADDITION, YOUR COMMITTEE WISHES
TO POINT OUT THE FALLACY OF A WIDELY HELD NOTION THAT BREACHES OF
CONTRACT ARE MOST OFTEN COMMITTED BY LABOR ORGANIZATIONS AND
EMPLOYEES.  ON THE CONTRARY, MOST BREACHES OF CONTRACT ARE BY
EMPLOYERS.  AS HAS BEEN ELSEWHERE STATED AT GREATER LENGTH IN THIS
REPORT YOUR COMMITTEE FEELS THAT LABOR DISPUTES SHOULD BE SETTLED BY
CONFERENCE, NEGOTIATION, AND COMPROMISE, AND NOT BY THE USE OF
MANDATORY JUDICIAL PROCESSES  ...  ."  (PP. 8-9.) 

B. MINORITY (SENATORS BALL, TAFT, AND H. ALEXANDER SMITH): 

"AMENDMENT NO. 3 (THE MINORITY PROPOSAL) WOULD MAKE UNIONS SUABLE AS
LEGAL ENTITIES IN THE FEDERAL COURTS FOR VIOLATION OF CONTRACT, WITH
LIABILITY LIMITED TO UNION ASSETS AND NOT ENFORCEABLE AGAINST
INDIVIDUAL MEMBERS OR THEIR PROPERTY.  A SUBSECTION WOULD PROVIDE THAT
WHERE INDIVIDUAL EMPLOYEES PARTICIPATED IN A 'WILDCAT' STRIKE IN
VIOLATION OF CONTRACT, NOT SANCTIONED OR APPROVED BY THE UNION, THE
UNION ITSELF WOULD NOT BE LIABLE BUT SUCH EMPLOYEES WOULD LOSE THEIR
LEGAL STATUS AS EMPLOYEES UNDER THE WAGNER ACT, LEAVING THE EMPLOYER
FREE TO DISCHARGE THEM OR NOT.  WHILE COLLECTIVE-BARGAINING AGREEMENTS
THEORETICALLY ARE LEGALLY ENFORCEABLE CONTRACTS, AS A PRACTICAL MATTER,
BECAUSE OF THE MANY OBSTACLES TO SUITS AGAINST UNIONS IMPOSED BY MOST
STATES, THEY ARE ACTUALLY BINDING ON ONLY ONE PARTY, THE EMPLOYER.  THE
MINORITY BELIEVES THIS PROVISION, IMPOSING EQUAL RESPONSIBILITY ON BOTH
PARTIES TO SUCH CONTRACTS, IS ABSOLUTELY ESSENTIAL TO THE STABILITY OF
LABOR RELATIONS.  THE ONLY ARGUMENT SO FAR ADVANCED AGAINST IT IS THAT
SOME EMPLOYERS MIGHT EMBARRASS UNIONS BY SUITS FOR ENFORCEMENT OF
CONTRACT.  THIS HARDLY IS A VALID GROUND FOR CONTINUING TO REGARD SUCH
CONTRACTS AS ONE-WAY ARRANGEMENTS, WHEREIN ONE PARTY RECEIVES BENEFITS
AND ASSUMES NO BINDING OBLIGATIONS WHATSOEVER."  (PP. 3-4.) 

                           "TEXT OF AMENDMENT NO. 3. 

"AMEND H.R. 4908 BY INSERTING AT THE PROPER PLACE THE FOLLOWING NEW

"SEC. - .  (A)  SUITS FOR VIOLATION OF A CONTRACT CONCLUDED AS THE
RESULT OF COLLECTIVE BARGAINING BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION IF SUCH CONTRACT AFFECTS COMMERCE AS DEFINED IN THIS ACT
MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED STATES HAVING
JURISDICTION OF THE PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHOSE ACTIVITIES AFFECT COMMERCE AS
DEFINED IN THIS ACT SHALL BE BOUND BY THE ACTS OF ITS DULY AUTHORIZED
AGENTS ACTING WITHIN THE SCOPE OF THEIR AUTHORITY FROM THE SAID LABOR
ORGANIZATION AND MAY SUE OR BE SUED AS AN ENTITY AND IN BEHALF OF THE
EMPLOYEES WHOM IT REPRESENTS IN THE COURTS OF THE UNITED STATES:
PROVIDED, THAT ANY MONEY JUDGMENT AGAINST SUCH LABOR ORGANIZATION SHALL
BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST
ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER
OR HIS ASSETS. 

"(C)  FOR THE PURPOSES OF THIS SECTION DISTRICT COURTS SHALL BE
DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1) IN THE DISTRICT
IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL OFFICE, OR (2) IN
ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR AGENTS ARE
ENGAGED IN PROMOTING OR PROTECTING THE INTERESTS OF EMPLOYEE MEMBERS. 
THE SERVICE OF SUMMONS, SUBPENA OR OTHER LEGAL PROCESS UPON SUCH
OFFICER OR AGENT SHALL CONSTITUTE SERVICE UPON THE LABOR ORGANIZATION. 

"(D)  ANY EMPLOYEE WHO PARTICIPATES IN A STRIKE OR OTHER STOPPAGE OF
WORK IN VIOLATION OF AN EXISTING COLLECTIVE-BARGAINING AGREEMENT, IF
SUCH STRIKE OR STOPPAGE IS NOT RATIFIED OR APPROVED BY THE LABOR
ORGANIZATION PARTY TO SUCH AGREEMENT AND HAVING EXCLUSIVE BARGAINING
RIGHTS FOR SUCH EMPLOYEE, SHALL LOSE HIS STATUS AS AN EMPLOYEE OF THE
EMPLOYER PARTY TO SUCH AGREEMENT FOR THE PURPOSES OF SECTIONS 8, 9, AND
10 OF THE NATIONAL LABOR RELATIONS ACT:  PROVIDED, THAT SUCH LOSS OF
STATUS FOR SUCH EMPLOYEE SHALL CEASE IF AND WHEN HE IS REEMPLOYED BY
SUCH EMPLOYER. 

     *         *         *         *         * 

"THE PURPOSE OF THIS AMENDMENT IS SIMPLE:  TO MAKE COLLECTIVE
BARGAINING CONTRACTS EQUALLY BINDING AND ENFORCEABLE ON BOTH PARTIES TO
THEM.  THE COURTS HAVE HELD THAT THE PURPOSE OF THE WAGNER ACT WAS: 

"TO COMPEL EMPLOYERS TO BARGAIN COLLECTIVELY WITH THEIR EMPLOYEES TO
THE END THAT AN EMPLOYMENT CONTRACT, BINDING ON BOTH PARTIES, SHOULD BE
MADE.  (H.J. HEINZ & CO., 311 U.S. 514 - 1941.) 

"BUT NEITHER THE WAGNER ACT NOR ANY OTHER FEDERAL STATUTE MAKES LABOR
UNIONS LEGALLY RESPONSIBLE FOR CARRYING OUT THEIR AGREEMENTS. 

"THE LAWS OF MANY STATES MAKE IT DIFFICULT TO SUE EFFECTIVELY AND TO
RECOVER A JUDGMENT AGAINST AN UNINCORPORATED LABOR UNION.  IT IS
DIFFICULT TO REACH THE FUNDS OF A UNION TO SATISFY A JUDGMENT AGAINST
IT.  IN SOME STATES IT IS NECESSARY TO SERVE ALL THE MEMBERS BEFORE AN
ACTION CAN BE MAINTAINED AGAINST THE UNION.  THIS IS AN ALMOST
IMPOSSIBLE PROCESS (SEE TESTIMONY OF RAYMOND S. SMETHURST BEFORE
COMMITTEE, FEBRUARY 25, 1946).  DESPITE THESE PRACTICAL DIFFICULTIES IN
THE COLLECTION OF A JUDGMENT AGAINST A UNION, THE NATIONAL LABOR
RELATIONS BOARD HAS HELD IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO
INSIST THAT A UNION INCORPORATE OR POST A BOND TO ESTABLISH SOME SORT
OF LEGAL RESPONSIBILITY UNDER A COLLECTIVE AGREEMENT. 

"PRESIDENT TRUMAN, IN OPENING THE MANAGEMENT-LABOR CONFERENCE IN
NOVEMBER 1945, TOOK COGNIZANCE OF THIS CONDITION.  HE SAID VERY PLAINLY
THAT COLLECTIVE AGREEMENTS SHOULD BE MUTUALLY BINDING ON BOTH PARTIES
TO THE CONTRACT: 

"WE SHALL HAVE TO FIND METHODS NOT ONLY OF PEACEFUL NEGOTIATION OF
LABOR CONTRACTS, BUT ALSO OF INSURING INDUSTRIAL PEACE FOR THE LIFETIME
OF SUCH CONTRACTS.  CONTRACTS ONCE MADE MUST BE LIVED UP TO AND SHOULD
BE CHANGED ONLY IN THE MANNER AGREED UPON BY THE PARTIES.  IF WE EXPECT
CONFIDENCE IN AGREEMENTS MADE, THERE MUST BE RESPONSIBILITY AND
INTEGRITY ON BOTH SIDES IN CARRYING THEM OUT. 

"IF UNIONS CAN BREAK AGREEMENTS WITH RELATIVE IMPUNITY, THEN SUCH
AGREEMENTS DO NOT TEND TO STABILIZE INDUSTRIAL RELATIONS.  THE
EXECUTION OF AN AGREEMENT DOES NOT BY ITSELF PROMOTE INDUSTRIAL PEACE. 
THE MAIN REASON FOR AN EMPLOYER TO SIGN A COLLECTIVE LABOR AGREEMENT IS
TO ASSURE UNINTERRUPTED OPERATION DURING THE TERM OF THE AGREEMENT. 
WITHOUT SOME EFFECTIVE METHOD OF ASSURING FREEDOM FROM ECONOMIC WARFARE
FOR THE TERM OF THE AGREEMENT, THERE IS LITTLE REASON WHY AN EMPLOYER
WOULD DESIRE TO ENTER INTO AN AGREEMENT. 

"CONSEQUENTLY, TO ENCOURAGE THE MAKING OF AGREEMENTS AND TO PROMOTE
INDUSTRIAL PEACE THROUGH FAITHFUL PERFORMANCE BY THE PARTIES,
COLLECTIVE AGREEMENTS DEALING WITH INTERSTATE COMMERCE SHOULD BE
ENFORCEABLE IN THE FEDERAL COURTS.  OUR AMENDMENT WOULD PROVIDE FOR
SUITS BY UNIONS AS LEGAL ENTITIES AND AGAINST UNIONS AS LEGAL ENTITIES
IN THE FEDERAL COURTS IN DISPUTES AFFECTING COMMERCE (AS DEFINED BY
SEC. 2(A)(1) OF THIS ACT). 

"THE AMENDMENT SPECIFICALLY PROVIDES THAT ONLY THE ASSETS OF THE
UNION CAN BE ATTACHED TO SATISFY A MONEY JUDGMENT AGAINST IT.  THE
PROPERTY OF THE INDIVIDUAL MEMBERS OF THE ORGANIZATION WOULD BECOME
ABSOLUTELY FREE FROM ANY LIABILITY UNDER SUCH A JUDGMENT.  THUS THE
MEMBERS OF THE UNION WOULD SECURE ALL THE ADVANTAGES OF LIMITED
LIABILITY WITHOUT INCORPORATION OF THE UNION. 

"THE PROPOSED AMENDMENT RELATIVE TO UNION LIABILITY SPECIFICALLY
PROVIDES THAT A LABOR ORGANIZATION WOULD BE BOUND BY THE ACTS OF ITS
AUTHORIZED AGENTS ONLY.  THUS A LABOR ORGANIZATION WOULD NOT BE LIABLE
FOR DAMAGES ARISING AS A RESULT OF AN UNAUTHORIZED STRIKE CARRIED ON IN
VIOLATION OF A CONTRACT.  IF A UNION OR AN OFFICER THEREOF DID NOT
AUTHORIZE THE STRIKE OR PARTICIPATE IN IT, OR SUPPORT IT, OR
SUBSEQUENTLY APPROVE IT, NO LIABILITY WOULD BE IMPOSED ON THE UNION AS
A CONSEQUENCE OF THE WORK STOPPAGE.  TO PROTECT THE EMPLOYER AGAINST
WORK STOPPAGES IN VIOLATION OF AN AGREEMENT BUT NOT APPROVED BY THE
UNION, EMPLOYEES WHO TAKE PART IN SUCH STRIKES WOULD LOSE THEIR STATUS
AS EMPLOYEES UNDER SECTIONS 8, 9, AND 10 OF THE NATIONAL LABOR
RELATIONS ACT.  THE EMPLOYER COULD REFUSE TO REHIRE THEM AFTER THE
STRIKE.  BESIDES PROVIDING A REMEDY FOR THE EMPLOYER FOR IRRESPONSIBLE
INTERRUPTIONS OF PRODUCTION, SUCH A PROVISION WOULD TEND TO STRENGTHEN
SOUND UNION DISCIPLINE.    "THE INITIAL OBSTACLE IN ENFORCING THE TERMS
OF A COLLECTIVE AGREEMENT AGAINST A UNION WHICH HAS BREACHED ITS
PROVISIONS IS THE DIFFICULTY OF SUBJECTING THE UNION TO PROCESS.  THE
GREAT MAJORITY OF LABOR UNIONS ARE UNINCORPORATED ASSOCIATIONS AND AT
COMMON LAW VOLUNTARY ASSOCIATIONS ARE NOT SUABLE AS SUCH (WILSON V.
AIRLINE COAL COMPANY, 215 IOWA 855; IRON MOLDERS' UNION V. ALLIS
CHALMERS COMPANY, C.C.A. 7, 166 F. 45).  AS A CONSEQUENCE THE RULE IN
ALL JURISDICTIONS, IN THE ABSENCE OF STATUTE, IS THAT UNINCORPORATED
LABOR UNIONS CANNOT BE SUED IN THEIR COMMON NAME (GRANT V. CARPENTERS'
DISTRICT COUNCIL, 322 PA. ST. 62).  ACCORDINGLY, THE DIFFICULTY OR
IMPOSSIBILITY OF ENFORCING THE TERMS OF A COLLECTIVE AGREEMENT IN A
SUIT AT LAW AGAINST A UNION ARISES FROM THE FACT THAT EACH INDIVIDUAL
MEMBER OF THE UNION MUST BE NAMED AND MADE A PARTY TO THE SUIT. 

"SOME STATES HAVE ENACTED STATUTES WHICH SUBJECT UNINCORPORATED
ASSOCIATIONS TO THE JURISDICTION OF LAW COURTS.  THESE STATUTES ARE BY
NO MEANS UNIFORM; SOME PERTAIN TO FRATERNAL SOCIETIES, WELFARE
ORGANIZATIONS, ASSOCIATIONS DOING BUSINESS, ETC., AND IN SOME STATES
THE COURTS HAVE EXCLUDED LABOR UNIONS FROM THEIR APPLICATION. 

"ON THE OTHER HAND, SOME STATES, INCLUDING CALIFORNIA AND MONTANA,
HAVE CONSTRUED STATUTES PERMITTING COMMON NAME SUITS AGAINST
ASSOCIATIONS DOING BUSINESS TO APPLY TO LABOR UNIONS (ARMSTRONG V.
SUPERIOR COURT, 173 CAL. 341; VANCE V. MCGINLEY, 39 MONT. 46). 
SIMILARLY, BUT MORE RESTRICTIVE, IN A CONSIDERABLE NUMBER OF STATES THE
ACTION IS PERMITTED AGAINST THE UNION OR REPRESENTATIVES IN PROCEEDINGS
IN WHICH THE PLAINTIFF COULD HAVE MAINTAINED SUCH AN ACTION AGAINST ALL
THE ASSOCIATES.  SUCH STATES INCLUDE ALABAMA, CALIFORNIA, CONNECTICUT,
DELAWARE, MARYLAND, MONTANA, NEVADA, NEW JERSEY, NEW YORK, RHODE
ISLAND, SOUTH CAROLINA, AND VERMONT. 

"IN AT LEAST ONE JURISDICTION, THE DISTRICT OF COLUMBIA, THE LIBERAL
VIEW IS HELD THAT UNINCORPORATED LABOR UNIONS MAY BE SUED AS LEGAL
ENTITIES, EVEN IN THE ABSENCE OF STATUTE (BUSBY V. ELEC.  UTIL.  EMP.
UNION, U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, NO. 8548,
JANUARY 22, 1945). 

"IN THE FEDERAL COURTS, WHETHER AN UNINCORPORATED UNION CAN BE SUED
DEPENDS UPON THE PROCEDURAL RULES OF THE STATE IN WHICH THE ACTION IS
BROUGHT (BUSBY V. ELEC.  UTIL.  EMPL.  UNION (323 U.S. 72), U.S.
SUPREME COURT, 89 LAW.  ADV.  OP. 108, DECEMBER 4, 1944). 

"THE NORRIS-LAGUARDIA ACT HAS INSULATED LABOR UNIONS, IN THE FIELD OF
INJUNCTIONS, AGAINST LIABILITY FOR BREACH OF CONTRACT.  IT HAS BEEN
HELD BY A FEDERAL COURT THAT STRIKES, PICKETING, OR BOYCOTTING, WHEN
CARRIED ON IN BREACH OF A COLLECTIVE AGREEMENT, INVOLVE A 'LABOR
DISPUTE' UNDER THE ACT SO AS TO MAKE THE ACTIVITY NOT ENJOINABLE
WITHOUT A SHOWING OF THE REQUIREMENTS WHICH CONDITION THE ISSUANCE OF
AN INJUNCTION UNDER THE ACT (WILSON & CO. V. BIRL, 105 F.2D 948, C.C.A.
3). 

"A GREAT NUMBER OF STATES HAVE ENACTED ANTI-INJUNCTION STATUTES
MODELED AFTER THE NORRIS-LAGUARDIA ACT, AND THE COURTS OF MANY OF THESE
JURISDICTIONS HAVE HELD THAT A STRIKE IN VIOLATION OF A COLLECTIVE
AGREEMENT IS A 'LABOR DISPUTE' AND CANNOT BE ENJOINED (THE NEVINS V.
KASMACH, 279 N.Y. 323; BULKIN V. SACKS, 31 PA. D&C 501). 

"THERE ARE NO FEDERAL LAWS GIVING EITHER AN EMPLOYER OR EVEN THE
GOVERNMENT ITSELF ANY RIGHT OF ACTION AGAINST A UNION FOR ANY BREACH OF
CONTRACT.  THUS THERE IS NO 'SUBSTANTIVE RIGHT' TO ENFORCE, IN ORDER TO
MAKE THE UNION SUABLE AS SUCH IN FEDERAL COURTS. 

"EVEN WHERE UNIONS ARE SUABLE, THE UNION FUNDS MAY NOT BE REACHED FOR
PAYMENT OF DAMAGES AND ANY JUDGMENTS OR DECREES RENDERED AGAINST THE
ASSOCIATION AS AN ENTITY MAY BE UNENFORCEABLE.  (SEE AALCO LAUNDRY CO.
V. LAUNDRY LINEN UNION, 115 S.W.2D 89 MO. APP.) HOWEVER, ONLY WHERE
STATUTES PROVIDE FOR RECOGNITION OF THE LEGAL STATUS OF ASSOCIATIONS DO
ASSOCIATION FUNDS BECOME SUBJECT TO JUDGMENTS (DEENEY V. HOTEL & APT. 
CLERK'S UNION, 134 P.2D 328 (1943), CALIFORNIA). 

"FINANCIAL STATUTORY LIABILITY OF ASSOCIATIONS IS PROVIDED FOR BY
SOME STATES, AMONG WHICH ARE ALABAMA, CALIFORNIA, COLORADO,
CONNECTICUT, DELAWARE, NEW JERSEY, NORTH DAKOTA, AND SOUTH CAROLINA. 
EVEN IN THESE STATES, HOWEVER, WHETHER LABOR UNIONS ARE INCLUDED WITHIN
THE DEFINITION OF 'ASSOCIATION' IS A MATTER OF LOCAL JUDICIAL
INTERPRETATION. 

"IT IS APPARENT THAT UNTIL ALL JURISDICTIONS, AND PARTICULARLY THE
FEDERAL GOVERNMENT, AUTHORIZE ACTIONS AGAINST LABOR UNIONS AS LEGAL
ENTITIES, THERE WILL NOT BE THE MUTUAL RESPONSIBILITY NECESSARY TO
VITALIZE COLLECTIVE-BARGAINING AGREEMENTS.  THE CONGRESS HAS PROTECTED
THE RIGHT OF WORKERS TO ORGANIZE.  IT HAS PASSED LAWS TO ENCOURAGE AND
PROMOTE COLLECTIVE BARGAINING. 

"STATUTORY RECOGNITION OF THE COLLECTIVE AGREEMENT AS A VALID,
BINDING AND ENFORCEABLE CONTRACT IS A LOGICAL AND NECESSARY STEP.  IT
WILL PROMOTE A HIGHER DEGREE OF RESPONSIBILITY UPON THE PARTIES TO SUCH
AGREEMENTS, AND WILL THEREBY PROMOTE INDUSTRIAL PEACE. 

"IT HAS BEEN ARGUED THAT THE RESULT OF MAKING COLLECTIVE AGREEMENTS
ENFORCEABLE AGAINST UNIONS WOULD BE THAT THEY WOULD NO LONGER CONSENT
TO THE INCLUSION OF A NO-STRIKE CLAUSE IN A CONTRACT. 

"THIS ARGUMENT IS NOT SUPPORTED BY THE RECORD IN THE FEW STATES WHICH
HAVE ENACTED THEIR OWN LAWS IN AN EFFORT TO SECURE SOME MEASURE OF
UNION RESPONSIBILITY FOR BREACHES OF CONTRACT.  FOUR STATES -
MINNESOTA, COLORADO, WISCONSIN, AND CALIFORNIA - HAVE THUS FAR ENACTED
SUCH LAWS AND, SO FAR AS CAN BE LEARNED, NO-STRIKE CLAUSES HAVE BEEN
CONTINUED ABOUT AS BEFORE. 

"IN ANY EVENT, IT IS CERTAINLY A POINT TO BE BARGAINED OVER AND ANY
UNION WITH THE STATUS OF 'REPRESENTATIVE' UNDER THE NLRA WHICH HAS
BARGAINED IN GOOD FAITH WITH AN EMPLOYER SHOULD HAVE NO RELUCTANCE IN
INCLUDING A NO-STRIKE CLAUSE IF IT INTENDS TO LIVE UP TO THE TERMS OF
THE CONTRACT.  THE IMPROVEMENT THAT WOULD RESULT IN THE STABILITY OF
INDUSTRIAL RELATIONS IS, OF COURSE, OBVIOUS."  (PP. 10-14.) 

4.  SENATE DEBATE: 

A. SENATOR TAFT: 

"MR. PRESIDENT, THIS AMENDMENT IS THE THIRD AND LAST OF THE
AMENDMENTS WHICH ATTEMPT TO STRENGTHEN THE COLLECTIVE-BARGAINING
PROCESS.  I DO NOT KNOW OF ANYTHING FOR WHICH THERE HAS BEEN GREATER
DEMAND THAN RECOGNITION THAT LABOR UNIONS SHALL BE RESPONSIBLE ON THEIR
COLLECTIVE-BARGAINING CONTRACTS EXACTLY AS THE EMPLOYER IS
RESPONSIBLE.  THE UNITED STATES SUPREME COURT HAS SAID THAT THE PURPOSE
OF THE WAGNER ACT WAS: 

"TO COMPEL EMPLOYERS TO BARGAIN COLLECTIVELY WITH THEIR EMPLOYEES TO
THE END THAT AN EMPLOYMENT CONTRACT, BINDING ON BOTH PARTIES, SHOULD BE
MADE. 

"I QUOTE FROM PRESIDENT TRUMAN'S ADDRESS TO THE MANAGEMENT-LABOR
CONFERENCE IN NOVEMBER 1945: 

"WE SHALL HAVE TO FIND METHODS NOT ONLY OF PEACEFUL NEGOTIATION OF
LABOR CONTRACTS, BUT ALSO OF INSURING INDUSTRIAL PEACE FOR THE LIFETIME
OF SUCH CONTRACTS. 

"I QUOTE STILL FURTHER FROM PRESIDENT TRUMAN'S ADDRESS: 

"CONTRACTS ONCE MADE MUST BE LIVED UP TO AND SHOULD BE CHANGED ONLY
IN THE MANNER AGREED UPON BY THE PARTIES.  IF WE EXPECT CONFIDENCE IN
AGREEMENTS MADE, THERE MUST BE RESPONSIBILITY AND INTEGRITY ON BOTH
SIDES IN CARRYING THEM OUT. 

"A BILL WAS INTRODUCED, AS I RECALL, BY THE SENATOR FROM VIRGINIA
(MR. BYRD) TO REQUIRE ALL LABOR UNIONS TO INCORPORATE.  WE FOUND THAT
TO BE AWKWARD, AND WE THOUGHT IT UNNECESSARY.  ALL WE PROVIDE IN THE
AMENDMENT IS THAT VOLUNTARY ASSOCIATIONS SHALL IN EFFECT BE SUABLE AS
IF THEY WERE CORPORATIONS, AND SUABLE IN THE FEDERAL COURTS IF THE
CONTRACT INVOLVES INTERSTATE COMMERCE AND THEREFORE INVOLVES A FEDERAL
QUESTION.  AS A MATTER OF FACT, LABOR UNIONS IN THEORY ARE RESPONSIBLE
FOR THEIR CONTRACTS.  AT TIMES THEY HAVE BEEN SUED, INCLUDING ACTIONS
FOR TORT.  IN THE DANBURY HATTERS CASE IT WILL BE REMEMBERED A JUDGMENT
WAS OBTAINED, AND BECAUSE IT WAS A VOLUNTARY ASSOCIATION, THE HOUSES OF
ALL THE VARIOUS MEMBERS WERE LEVIED UPON AND TAKEN IN SATISFACTION OF
THE JUDGMENT.  WE DO NOT WANT TO PERPETUATE SUCH A CONDITION. 
THEREFORE, WE PROVIDE VERY SIMPLY THAT A LABOR UNION MAY BE SUED AS IF
IT WERE A CORPORATION, AND IF IT IS SUED, THEN THE FUNDS OF THE LABOR
ORGANIZATION AND ITS ASSETS ARE RESPONSIBLE FOR THE JUDGMENT, BUT THE
FUNDS AND THE ASSETS OF THE INDIVIDUAL MEMBERS ARE NOT LIABLE ON SUCH A
JUDGMENT.  IN OTHER WORDS, WE THINK IN SUBSECTION (A) AND IN SUBSECTION
(B) WE HAVE FAIRLY STATED THE PROPOSITION. 

     *         *         *        *         * 

"LET ME FINISH DISCUSSING SUBSECTION (C) FIRST.  IT SIMPLY PROVIDES
HOW LABOR UNIONS MAY BE SUED, HOW THEY MAY BE SERVED, AND PROVIDES THE
MACHINERY BY WHICH THE SUIT MAY BE BROUGHT.  THE DIFFICULTY WITH
RESPECT TO UNINCORPORATED ASSOCIATIONS IS THAT UNDER MOST STATE LAWS
THEY ARE VERY DIFFICULT TO SUE.  IN THEORY, THEY ARE SUABLE, BUT AS A
PRACTICAL MATTER THERE ARE MANY STATES IN WHICH IT IS ALMOST IMPOSSIBLE
TO SUE THEM.  IT IS NECESSARY TO MAKE PRACTICALLY EVERY MEMBER OF THE
LABOR ORGANIZATION A PARTY TO THE SUIT.  VARIOUS OTHER KINDS OF
RESTRICTIONS AND DIFFICULTIES EXIST WHICH, AS A PRACTICAL MATTER, IN A
LARGE PART OF THE UNITED STATES MAKES IT ABSOLUTELY IMPOSSIBLE TO SUE A
LABOR UNION."  (92 CONG. REC. 5705.) 

"WHAT GOOD IS A COLLECTIVE-BARGAINING AGREEMENT IF PEOPLE ARE NOT
BOUND BY IT?  IF THERE IS A COLLECTIVE-BARGAINING AGREEMENT AND THE MEN
ARE BOUND BY IT, THEY OUGHT TO CARRY IT OUT.  IF THE UNION WANTS TO
CARRY IT OUT, AND SOME OF THE MEN SAY, 'WE WILL NOT DO IT,' THEY OUGHT
TO BE LIABLE.  THIS PROVISION APPLIES ONLY IF THE ACTION OF THE
INDIVIDUAL IS A VIOLATION OF THE COLLECTIVE-BARGAINING AGREEMENT." 
(ID., AT 5706.) 

B. SENATOR BALL: 

"THE PENDING AMENDMENT VERY SIMPLY SEEKS TO ESTABLISH FOR UNIONS THE
SAME RESPONSIBILITY FOR CARRYING OUT THEIR CONTRACTS THAT NOW APPLY TO
EMPLOYERS  ...  . 

     *         *         *         *         * 

"MR. PRESIDENT, IT IS THE CONTENTION OF SOME OF THE OPPONENTS OF THIS
AMENDMENT THAT UNIONS ARE NOW SUABLE IN STATE COURTS.  A LAWYER ON MY
STAFF LOOKED UP A NUMBER OF RECENT DECISIONS.  SEVERAL OF THEM SHOW
THAT IN KENTUCKY, WEST VIRGINIA, IN MASSACHUSETTS, AND IN ILLINOIS, ALL
OF WHICH ARE IMPORTANT INDUSTRIAL STATES, UNIONS CANNOT BE SUED AS
LEGAL ENTITIES  ...  . 

     *         *         *      *         * 

"MR. PRESIDENT, IT SEEMS TO ME THAT EQUAL RESPONSIBILITY BY BOTH
PARTIES TO A CONTRACT IS A PRINCIPLE WHICH THE SENATE SHOULD APPLY IN
THE FIELD OF LABOR RELATIONS.  I HOPE THE AMENDMENT WILL BE ADOPTED." 
(ID., AT 5722.) 

C. SENATOR MURRAY, OPPOSING THE MEASURE, ARGUED, AMONG OTHER THINGS,
THAT LABOR UNIONS ARE PECULIAR IN THAT THEY ARE UNINCORPORATED
ASSOCIATIONS, THAT STATE RULES REGARDING THEM ARE THE SAME FOR ALL
UNINCORPORATED ASSOCIATIONS, AND THAT IT WOULD BE UNJUST TO SUBJECT THE
UNION TO DIFFERENT RULES IN THE FEDERAL COURTS.  THE FOLLOWING
QUOTATIONS, RELIED UPON BY THOSE SEEKING TO FIND FEDERAL SUBSTANTIVE
LAW IN SECTION 301, MUST BE VIEWED IN THE CONTEXT OF THIS PROCEDURAL
DISCUSSION: 

"BY THEIR PROPOSAL, THE MINORITY MEMBERS OF THE COMMITTEE PROPOSING
THIS AMENDMENT WOULD CREATE A COMPLETELY NEW FEDERAL RIGHT IN THE
UNITED STATES COURTS.  IT WOULD NOT CREATE THIS NEW RIGHT AS AGAINST
ALL UNINCORPORATED ASSOCIATIONS, BUT IT WOULD SET UP A NEW AND SPECIAL
COURT RIGHT AGAINST UNIONS. 

"TO REALIZE THE FULL IMPLICATION OF THIS MATTER, IT SHOULD BE
REMEMBERED THAT THE COURTS OF THE UNITED STATES, AS DISTINGUISHED FROM
THE COURTS OF EACH OF THE SEVERAL STATES, OPERATE UNDER A VERY
LONGSTANDING SET OF LAWS DEFINING THEIR JURISDICTION.  IT IS NOT
POSSIBLE TO BRING EACH AND ANY CASE INTO THE UNITED STATES COURTS  ...
.  THE FEDERAL COURTS WERE CREATED SOLELY FOR THE PURPOSE OF HANDLING
SPECIAL MATTERS WHICH ARE APPROPRIATELY IN THE JURISDICTION OF A
FEDERAL AGENCY.  THUS, SUITS INVOLVING RIGHTS OF A CITIZEN UNDER
FEDERAL STATUTE MAY GO TO A FEDERAL COURT.  SUITS INVOLVING CITIZENS OF
MORE THAN ONE STATE MAY GO TO A FEDERAL COURT UNDER APPROPRIATE
CIRCUMSTANCES. 

"WHAT IS THE STATE OF THE LAW TODAY WITH RESPECT TO THE RIGHT TO
BRING A SUIT IN A FEDERAL COURT FOR VIOLATION OF A COLLECTIVE
BARGAINING AGREEMENT?  THE LAW IN SUCH A SITUATION IS IDENTICAL WITH
THAT AFFECTING ALL INDIVIDUALS, CORPORATIONS, OR ASSOCIATIONS.  WHERE
THERE IS DIVERSITY OF CITIZENSHIP - PLAINTIFFS AND DEFENDANTS FROM
DIFFERENT STATES - ACTION MAY BE BROUGHT IN THE FEDERAL COURTS.  WHERE
RIGHTS UNDER A FEDERAL STATUTE ARE INVOLVED, THE MATTER MAY BE BROUGHT
TO A FEDERAL COURT.  IN SHORT, WHERE, UNDER GENERAL LAW A MATTER
APPROPRIATE FOR FEDERAL JURISDICTION IS INVOLVED, SUITS UNDER LABOR
CONTRACTS, AS UNDER ANY OTHER TYPE OF CONTRACT, MAY BE BROUGHT IN THE
FEDERAL COURTS. 

"THE SENATORS MAKING THE PRESENT PROPOSAL ARE NOT SATISFIED WITH
THIS, HOWEVER.  THEIR PROPOSAL WOULD TAKE LABOR AGREEMENTS OUT OF THE
CATEGORY OF NORMAL STATE COURT OPERATIONS, AND WOULD MAKE THEM AT ALL
TIMES AND UNDER ALL CIRCUMSTANCES A MATTER FOR THE FEDERAL COURTS.  THE
PROPOSAL WOULD CREATE A NEW AND SPECIAL FEDERAL RIGHT TO ENFORCE IN THE
FEDERAL COURTS THE TERMS IN A LABOR AGREEMENT."  (ID., AT 5708.) 

"CONTINUING MY DISCUSSION OF THE AMENDMENT, I WISH TO SAY THAT THE
FIRST ISSUE IS NOT WHETHER A COLLECTIVE-BARGAINING AGREEMENT MAY BE
ENFORCED IN COURT.  COLLECTIVE-BARGAINING AGREEMENTS ARE AS ENFORCEABLE
IN THE COURTS AS ANY OTHER KIND OF AGREEMENT UNDER THE LAW TODAY.  THE
FIRST QUESTION IS WHETHER COLLECTIVE-BARGAINING AGREEMENTS, UNLIKE ANY
OTHER AGREEMENTS, ARE TO BE THROWN INTO THE FEDERAL COURTS AND MADE THE
SUBJECT OF FEDERAL COURT JURISDICTION."  (ID., AT 5720.)    D. SENATOR
MAGNUSON, OPPOSING THE AMENDMENT BEFORE IT WAS ACTUALLY INTRODUCED,
WENT INTO DETAILED CONSIDERATION OF THE AMENDMENT, WHICH HE DESCRIBED
AS ONE TO "CREATE A RIGHT OF ACTION, UNDER FEDERAL STATUTE, FOR BREACH
OF A COLLECTIVE-BARGAINING AGREEMENT."  HE ASSERTED THAT SUCH
AGREEMENTS WERE ALREADY FULLY BINDING LEGALLY ON BOTH PARTIES, AND THAT
THE DIFFICULTY WAS IN THE UNION'S STATUS AS AN UNINCORPORATED
ASSOCIATION.  HE DEFENDED THE NECESSITY FOR THE RESTRICTIVE RULES
REGARDING SUITS AGAINST SUCH ASSOCIATIONS, AND EMPHASIZED THE
MODIFICATION OF THE RULE IN MANY STATES DESIGNED TO FACILITATE SUITS
AGAINST UNIONS.  THEN: 

"THE MINORITY VIEWS OF THE SENATE LABOR COMMITTEE IN URGING THE
ADOPTION OF THE AMENDMENT, CORRECTLY ASSERT THAT THE FEDERAL COURTS
MUST FOLLOW THE LAWS OF THE STATES IN SUITS ON COLLECTIVE-BARGAINING
AGREEMENTS WHEN A FEDERAL STATUTE IS NOT INVOLVED.  THE MINORITY VIEWS
HOWEVER, GIVE AN INCORRECT PICTURE OF THE LAWS OF THE VARIOUS STATES ON
THE QUESTION.  AT THE PRESENT TIME, FULLY THREE-FOURTHS OF THE STATES
PERMIT SUITS TO BE BROUGHT AGAINST UNINCORPORATED ASSOCIATIONS IN THEIR
OWN NAMES.  IN OTHER WORDS, AT LEAST THREE-FOURTHS OF THE STATES ALLOW
A SUIT TO BE BROUGHT AGAINST ANY EMPLOYEE OR ANY GROUP OF EMPLOYEES FOR
THE VIOLATION OF A COLLECTIVE-BARGAINING AGREEMENT. 

     *         *         *         *         * 

"THE COMPARATIVE FREEDOM OF COURTS OF EQUITY ALSO MAKES IT POSSIBLE
FOR THEM TO LIMIT RECOVERIES TO FUNDS OR PROPERTY BELONGING TO THE
ASSOCIATIONS AS A CONDITION FOR PERMITTING THIS TYPE OF SUIT. 
SENATORS, IN VIEW OF THIS PROGRESS MADE BY THE STATES, I SEE NO REASON
WHY IT IS NECESSARY FOR THE FEDERAL GOVERNMENT TO INVADE THE REALM OF
THE STATES TO SUCH AN EXTENT AS TO FURNISH THEM LAWS GOVERNING SUITS
FOR BREACHES OF PURELY PRIVATE CONTRACTS.  THE LAW GOVERNING PRIVATE
CONTRACTS HAS TRADITIONALLY BEEN A MATTER FOR STATE CONTROL, AND WE
SHOULD NOT LIGHTLY VIOLATE THIS SEPARATION OF FUNCTIONS UNDER THE GUISE
OF CONTROLLING INTERSTATE COMMERCE. 

     *         *         *         *      * 

"MR. PRESIDENT, THE MINORITY VIEWS PICTURE A DARK FUTURE FOR A PARTY
WHO WISHES TO ENFORCE AN AGREEMENT WITH A LABOR UNION.  ACTUALLY THE
PICTURE GIVEN IS QUITE MISLEADING.  FOR INSTANCE, IT SAYS THAT AN
EMPLOYER OR EVEN THE GOVERNMENT HAS NO FEDERAL RIGHT OF ACTION TO
ENFORCE A COLLECTIVE BARGAINING AGREEMENT. 

"OF COURSE, THE AMENDMENT OF THE SENATOR FROM MINNESOTA WOULD ALLOW A
FEDERAL RIGHT OF ACTION TO ENFORCE A COLLECTIVE-BARGAINING AGREEMENT. 
ALL OF US WHO ARE LAWYERS KNOW THAT A PARTY WHO ENTERS INTO AN ORDINARY
PRIVATE CONTRACT HAS PRACTICALLY NO FEDERAL RIGHT OF ACTION TO HAVE THE
CONTRACT ENFORCED. 

     *         *         *         *         * 

"  ...  UNDER THE AMENDMENT OF THE SENATOR FROM MINNESOTA A CONTRACT
WOULD BE ENFORCEABLE ONLY IN FEDERAL COURTS, AND WOULD, THEREFORE,
VIOLATE A LONG-TIME CARDINAL PRINCIPLE OF LAW, NAMELY, THAT ALL
CONTRACTS ARE ENFORCEABLE, IF AT ALL, IN STATE COURTS. 

     *         *         *         *         * 

"MR. PRESIDENT, THERE IS ANOTHER POINT REGARDING THE PENDING
AMENDMENT WHICH I SHOULD LIKE TO MENTION.  THE AMENDMENT UNDER
DISCUSSION IS DESIGNED TO MAKE IT EASIER FOR EMPLOYERS TO BRING SUIT
AGAINST LABOR UNIONS.  DO THE MEMBERS OF THE SENATE REALIZE THAT IT IS
ALMOST IMPOSSIBLE FOR A LABOR UNION TO SUE AN EMPLOYER FOR BREACH OF
CONTRACT?  COLLECTIVE-BARGAINING AGREEMENTS ARE GENERALLY CONSTRUED
EITHER AS CONTRACTS BETWEEN THE EMPLOYER AND THE EMPLOYEES OR CONTRACTS
FOR THE BENEFIT OF THE EMPLOYEES.  IN EITHER CASE INJURED EMPLOYEES
MUST USUALLY SUE FOR THEMSELVES.  A UNION MAY NOT BRING SUIT BECAUSE IT
HAS NO INTEREST IN THE MATTER.  FURTHERMORE, EVEN THOUGH ITS DISABILITY
TO SUE AS AN UNINCORPORATED ASSOCIATION HAS NOW LARGELY BEEN REMOVED,
IT STILL HAS THE SAME DIFFICULTIES BRINGING SUIT AS AN EMPLOYER DOES IN
BRINGING IT INTO COURT AS A DEFENDANT.  IF THE SENATE IS GOING TO
CONFER SPECIAL PRIVILEGES ON ONE SIDE, IT PROBABLY SHOULD ALSO ADOPT AN
AMENDMENT WHICH WOULD CONFER THE SAME PRIVILEGES ON THE OTHER SIDE. 

     *         *         *         *       * 

"MR. BALL.  ...  THE SENATOR IS COMPLAINING THAT UNIONS HAVE
DIFFICULTY IN SUING EMPLOYERS FOR VIOLATIONS OF CONTRACT.  THIS
AMENDMENT WOULD CURE THAT SITUATION. 

"MR. MAGNUSON.  I DO NOT SO UNDERSTAND IT.  PERHAPS I HAVE NOT READ
THE AMENDMENT TOO CAREFULLY, OR PERHAPS THE LANGUAGE HAS BEEN CHANGED. 

"MR. BALL.  THE LANGUAGE OF THE AMENDMENT IS 'MAY SUE OR BE SUED.'" 
(ID., AT 5412-5415.) 

E. SENATOR MAGNUSON'S BELIEF THAT THE SECTION WAS INTENDED TO EXCLUDE
STATE COURT JURISDICTION WAS DISPOSED OF LATER BY SENATOR FERGUSON,
ANSWERING SENATOR MURRAY'S SIMILAR ASSUMPTION.  (ID., AT 5708.)  THESE
INCORRECT ASSUMPTIONS BY SENATOR MAGNUSON DO MUCH TO EXPLAIN HIS BELIEF
THAT A FEDERAL "RIGHT OF ACTION" WAS GRANTED BY SEC. 10.  MOREOVER, HIS
DISCOURSE OCCURRED PRIOR TO SENATOR TAFT'S EXPLANATION OF THE PURPOSE
OF THE AMENDMENT. 

5.  SENATOR TAFT'S AMENDMENT WAS INCORPORATED IN THE BILL BY THE
SENATE WITHOUT SUBSTANTIAL ALTERATION.  92 CONG. REC. 5723.  SEE I.,
D., INFRA, P. 511. 

C. HOUSE DEBATES: 

1.  THE HOUSE ACCEPTED THE SENATE VERSION OF SEC. 10 WITHOUT
REQUESTING A CONFERENCE. 

2.  REPRESENTATIVE CASE: 

"ALL THIS SECTION ON SUABILITY DOES IS TO CARRY OUT THE SAME PURPOSE
WE HAD IN THE HOUSE BILL, WHEN WE PROVIDED FOR MAKING CONTRACTS
ACTUALLY BINDING UPON BOTH PARTIES TO IT.  IT HAS BEEN FOUND THAT WHILE
A FEW STATES PERMIT SUING ON A LABOR CONTRACT, MANY STATES DO NOT. 
UNLESS YOU HAVE SOME SUCH PROVISION AS THIS IN FEDERAL LAW, COLLECTIVE
BARGAINING CONTRACTS WILL NOT BE GOOD, IN THE WORDS OF THE PRESIDENT,
'FOR THE LIFETIME OF SUCH CONTRACTS.' 

"SO THE SENATE VERY CAREFULLY AND PROPERLY DRAFTED THIS PROVISION IN
THE WAY THEY DID, TO INSURE THAT 'CONTRACTS,' AGAIN IN THE WORDS OF
PRESIDENT TRUMAN, 'ONCE MADE MUST BE LIVED UP TO' AND 'CHANGED ONLY IN
THE MANNER AGREED UPON BY THE PARTIES.' 

"INDIVIDUAL MEMBERS OF A UNION ARE NOT MADE LIABLE FOR ANY MONEY
JUDGMENT, I MIGHT POINT OUT, BUT ONLY THE UNION AS AN ENTITY  ...  ." 
(92 CONG. REC. 5930-5931.) 

3.  REPRESENTATIVE SLAUGHTER: 

"THE SECOND POINT IN THE BILL PROVIDES FOR MUTUALITY OF CONTRACTS. 
WHO IS THERE IN THIS BODY OR IN ANY LABOR UNION OR AMONG ANY GROUP OF
RIGHT-MINDED MEN AND WOMEN WHO WOULD SAY THAT BOTH PARTIES TO A
CONTRACT ARE NOT MUTUALLY LIABLE  ...  . 

"AN EMPLOYER IS LIABLE FOR HIS CONTRACTS AND SHOULD BE, AND, BY THE
SAME TOKEN, SO SHOULD THE EMPLOYEE."  (ID., AT 5942.) 

4.  REPRESENTATIVE SPRINGER: 

"  ...  IT DOES, HOWEVER, CONTAIN THE PROVISION THAT AFTER COLLECTIVE
BARGAINING AND THE MEETING OF THE MINDS UPON A CONTRACT, AGREEABLE TO
BOTH PARTIES, THAT FOR THE DURATION OF THAT CONTRACT, SO AGREED UPON,
BOTH PARTIES ARE BOUND BY THE TERMS AND PROVISIONS OF THAT CONTRACT. 

"OF COURSE, THAT IS MERELY THE LAW UNDER WHICH EVERY AMERICAN IS
GUIDED.  THE SANCTITY OF CONTRACTS MUST REMAIN INVIOLATE, AND ALL
PARTIES TO A CONTRACT FULLY AGREED UPON,  ...  MUST BE BOUND BY THE
TERMS AND PROVISIONS CONTAINED THEREIN.  ...  IT WOULD BE AN ASSURANCE
THAT LABOR WOULD CARRY OUT ITS CONTRACTUAL OBLIGATIONS UNDER THE
PROVISIONS OF THE CONTRACTS MADE AND ENTERED INTO ...  ."  (ID., AT
5944.) 

5.  REPRESENTATIVE ROBSION: 

"  ...  IT ALSO PROVIDES FOR SUITS BY LABOR ORGANIZATIONS FOR DAMAGES
DONE TO THEM BY MANAGEMENT FOR VIOLATION OF CONTRACT AND THE RIGHT OF
ACTION IS GIVEN TO THE EMPLOYER AGAINST THE LABOR UNION FOR DAMAGES
SUSTAINED BY THE BREACH OF A CONTRACT BETWEEN THE EMPLOYER AND THE
UNION  ...  .  WHEN A CONTRACT IS ONCE ENTERED INTO THE AGGRIEVED PARTY
SHOULD HAVE THE RIGHT OF ACTION AGAINST THE PARTY AT FAULT  ...  ." 
(ID., AT 5939.) 

D. THE BILL, AS PASSED BY BOTH HOUSES: 

"SEC. 10.  (A)  SUITS FOR VIOLATION OF A CONTRACT CONCLUDED AS THE
RESULT OF COLLECTIVE BARGAINING BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION IF SUCH CONTRACT AFFECTS COMMERCE AS DEFINED IN THIS ACT
MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED STATES HAVING
JURISDICTION OF THE PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHOSE ACTIVITIES AFFECT COMMERCE AS
DEFINED IN THIS ACT SHALL BE BOUND BY THE ACTS OF ITS DULY AUTHORIZED
AGENTS ACTING WITHIN THE SCOPE OF THEIR AUTHORITY FROM THE SAID LABOR
ORGANIZATION AND MAY SUE OR BE SUED AS AN ENTITY AND IN BEHALF OF THE
EMPLOYEES WHOM IT REPRESENTS IN THE COURTS OF THE UNITED STATES:
PROVIDED, THAT ANY MONEY JUDGMENT AGAINST SUCH LABOR ORGANIZATION SHALL
BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST
ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER
OR HIS ASSETS. 

"(C)  FOR THE PURPOSES OF THIS SECTION DISTRICT COURTS SHALL BE
DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1) IN THE DISTRICT
IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL OFFICE, OR (2) IN
ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR AGENTS ARE
ENGAGED IN PROMOTING OR PROTECTING THE INTERESTS OF EMPLOYEE MEMBERS. 
THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS UPON SUCH
OFFICER OR AGENT SHALL CONSTITUTE SERVICE UPON THE LABOR ORGANIZATION. 

"(D)  ANY EMPLOYEE WHO PARTICIPATES IN A STRIKE OR OTHER INTERFERENCE
WITH THE PERFORMANCE OF AN EXISTING COLLECTIVE BARGAINING AGREEMENT, IN
VIOLATION OF SUCH AGREEMENT, IF SUCH STRIKE OR INTERFERENCE IS NOT
RATIFIED OR APPROVED BY THE LABOR ORGANIZATION PARTY TO SUCH AGREEMENT
AND HAVING EXCLUSIVE BARGAINING RIGHTS FOR SUCH EMPLOYEE, SHALL LOSE
HIS STATUS AS AN EMPLOYEE OF THE EMPLOYER PARTY TO SUCH AGREEMENT FOR
THE PURPOSES OF SECTIONS 8, 9, AND 10 OF THE NATIONAL LABOR RELATIONS
ACT:  PROVIDED, THAT SUCH LOSS OF STATUS FOR SUCH EMPLOYEE SHALL CEASE
IF AND WHEN HE IS REEMPLOYED BY SUCH EMPLOYER." 

E. VETO MESSAGE (H.R. DOC. NO. 651, 79TH CONG., 2D SESS.): 

"SECTION 10: 

*         *         *         *         * 

"I AM IN ACCORD WITH THE PRINCIPLE THAT IT IS FAIR AND RIGHT TO HOLD
A LABOR UNION RESPONSIBLE FOR A VIOLATION OF ITS CONTRACT.  HOWEVER,
THIS LEGISLATION GOES MUCH FURTHER THAN THAT.  THIS SECTION, TAKEN IN
CONJUNCTION WITH THE NEXT SECTION, LARGELY REPEALS THE NORRIS-LAGUARDIA
ACT AND CHANGES A LONG-ESTABLISHED CONGRESSIONAL POLICY. 

"I AM SURE THAT, WITHOUT REPEALING THE NORRIS-LAGUARDIA ACT,  ...  A
SOUND AND EFFECTIVE MEANS OF ENFORCING LABOR'S RESPONSIBILITY CAN BE
FOUND." 

II.  THE TAFT-HARTLEY ACT. 

A. LEGISLATIVE HISTORY IN THE HOUSE: 

1.  HEARINGS BEFORE COMMITTEE ON EDUCATION AND LABOR ON H.R. 8, 725,
880, 1095, AND 1096, 80TH CONG., 1ST SESS.: 

A. AMONG THE BILLS UNDER CONSIDERATION, ONLY H.R. 725 CONTAINED A
IT PROVIDED:

                   "EQUAL RESPONSIBILITY AND LIABILITY. 

"SEC. 305.  (A)  SUITS FOR VIOLATIONS OF CONTRACTS BETWEEN AN EMPLOYER
AND A LABOR ORGANIZATION IF SUCH CONTRACTS AFFECT COMMERCE AS DEFINED
IN THIS ACT MAY BE BROUGHT BY EITHER PARTY IN ANY DISTRICT COURT OF THE
UNITED STATES HAVING JURISDICTION OF THE PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHOSE ACTIVITIES AFFECT COMMERCE AS
DEFINED IN THIS ACT SHALL BE BOUND BY THE ACTS OF ITS DULY AUTHORIZED
AGENTS ACTING WITHIN THE SCOPE OF THEIR AUTHORITY FROM THE SAID LABOR
ORGANIZATION, AND MAY SUE OR BE SUED AS AN ENTITY AND IN BEHALF OF THE
EMPLOYEES WHOM IT REPRESENTS IN THE COURTS OF THE UNITED STATES:
PROVIDED, THAT ANY MONEY JUDGMENT AGAINST SUCH LABOR ORGANIZATION SHALL
BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST
ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER
OR HIS ASSETS. 

"(C)  FOR THE PURPOSES OF THIS SECTION, DISTRICT COURTS SHALL BE
DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1) IN THE DISTRICT
IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL OFFICE, OR (2) IN
ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR AGENTS ARE
ENGAGED IN PROMOTING OR PROTECTING THE INTERESTS OF EMPLOYEE MEMBERS. 
THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS UPON SUCH
OFFICER OR AGENT SHALL CONSTITUTE SERVICE UPON THE LABOR
ORGANIZATION." 

B. DISCUSSION OF THE PROBLEM OF CONTRACT RESPONSIBILITY WAS FREQUENT,
BUT ALMOST EXCLUSIVELY IN GENERAL TERMS OF THE EXISTENCE OF A PROBLEM
AND THE DESIRABILITY OF HAVING COLLECTIVE AGREEMENTS ENFORCEABLE
AGAINST THE UNION AS WELL AS THE EMPLOYER.  SEE PP. 4, 34-36, 90-91,
125, 135, 227, 229, 406, 533, 547, 558-559, 569-570, 582, 590-591, 593,
673, 1007-1008, 1074, 1088, 1218, 1804, 1891, 2292, 2345, 2368, 2530,
2532, 2631, 2695. 

C. THE ONLY CONSIDERED ANALYSIS OF THE PROBLEM, AND THE REMEDY
PROPOSED OCCURRED IN THE TESTIMONY OF SECRETARY OF LABOR SCHWELLENBACH:

                    "SUITS BY AND AGAINST LABOR ORGANIZATIONS 

"H.R. 267, SECTION 305 OF H.R. 725, SECTION 4 OF H.R. 1430, AND
ORGANIZATIONS. 

"FEW SUBJECTS ARE SO WIDELY DISCUSSED AND SO LITTLE UNDERSTOOD AS
THIS ONE.  I AGREE THAT LABOR UNIONS SHOULD BE SUBJECT TO SUIT.  THE
GENERAL IDEA SEEMS TO BE THAT LABOR UNIONS ARE NOT SUBJECT TO SUIT
BECAUSE THEY ARE LABOR UNIONS.  SUCH A CONCEPT HAS NO BASIS IN LAW. 

"IN SOME STATES LABOR UNIONS ARE NOT SUABLE IN THEIR COMMON NAMES
BECAUSE THEY ARE UNINCORPORATED ASSOCIATIONS. 

"AS A MATTER OF FACT, THERE ARE ONLY 13 STATES WHERE UNINCORPORATED
ASSOCIATIONS CANNOT BE SUED IN THEIR COMMON NAME IN AN ACTION AT LAW
FOR BREACH OF CONTRACT OR TORTIOUS CONDUCT  ...  . 

"SINCE THE ADOPTION OF THE FEDERAL RULES OF CIVIL PROCEDURE, THERE
ARE 35 STATES WHERE THEY CAN SUE OR BE SUED IN THE FEDERAL COURTS. 
RULE 17(B) OF THOSE RULES PROVIDES IN PART (READING): 

"  ... CAPACITY TO SUE OR BE SUED SHALL BE DETERMINED BY THE LAW OF
THE STATE IN WHICH THE DISTRICT COURT IS HELD; EXCEPT THAT A
PARTNERSHIP OR OTHER UNINCORPORATED ASSOCIATION, WHICH HAS NO SUCH
CAPACITY BY THE LAW OF SUCH STATE, MAY SUE OR BE SUED IN ITS COMMON
NAME FOR THE PURPOSE OF ENFORCING FOR OR AGAINST IT A SUBSTANTIVE RIGHT
EXISTING UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES.    "SINCE
THE FIELD OF NECESSARY LEGISLATIVE ACTION IS SO NARROW, I SEE NO REASON
WHY THE GATES OF THE FEDERAL COURTS SHOULD BE OPENED SO WIDE AS TO
INVITE LITIGATION, AS WOULD BE DONE BY THE BILLS LISTED ABOVE. 

"I HAVE THREE SUGGESTIONS TO MAKE CONCERNING THESE BILLS. 

     *         *         *         *         *    "SECOND, I DO NOT
SEE WHY IT IS NECESSARY IN THIS FIELD TO ABANDON THE DIVERSITY OF
CITIZENSHIP REQUIREMENT.  IN FACT, I DOUBT THAT IT CAN BE ABANDONED
CONSTITUTIONALLY.  THE CONSTITUTION, AS YOU KNOW, LIMITS SUITS IN THE
FEDERAL COURTS TO CASES ARISING UNDER THE CONSTITUTION AND THE LAWS OF
THE UNITED STATES OR INVOLVING DIVERSITY OF CITIZENSHIP. 

"I GRAPPLED WITH THE QUESTION OF WHAT THE MEANING OF 'ARISING UNDER
THE LAWS OF THE UNITED STATES' WAS A GOOD MANY TIMES AND I MAKE NO
CATEGORICAL STATEMENT AS TO WHETHER OR NOT UNDER THIS PROPOSED
LEGISLATION THE COURTS WOULD HOLD THAT SUITS SO STARTED WOULD ARISE
UNDER THE LAWS OF THE UNITED STATES. 

"HOWEVER, THE GENERAL CONCEPT ALWAYS HAS BEEN IN PRIVATE LITIGATION
THAT A NECESSARY PREREQUISITE TO FEDERAL JURISDICTION IS DIVERSITY OF
CITIZENSHIP."  (PP. 3016-3017.) 

2.  THE BILL, AS REPORTED FROM COMMITTEE (H.R. 3020):

                       "EQUAL RESPONSIBILITY AND LIABILITY 

"SEC. 302.  (A)  ANY ACTION FOR OR PROCEEDING INVOLVING A VIOLATION
OF AN AGREEMENT BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION OR OTHER
REPRESENTATIVE OF EMPLOYEES MAY BE BROUGHT BY EITHER PARTY IN ANY
DISTRICT COURT OF THE UNITED STATES HAVING JURISDICTION OF THE PARTIES,
WITHOUT REGARD TO THE AMOUNT IN CONTROVERSY, IF SUCH AGREEMENT AFFECTS
COMMERCE, OR THE COURT OTHERWISE HAS JURISDICTION OF THE CAUSE. 

"(B)  ANY LABOR ORGANIZATION WHOSE ACTIVITIES AFFECT COMMERCE SHALL BE
BOUND BY THE ACTS OF ITS AGENTS, AND MAY SUE OR BE SUED AS AN ENTITY
AND IN BEHALF OF THE EMPLOYEES WHOM IT REPRESENTS IN THE COURTS OF THE
UNITED STATES.  ANY MONEY JUDGMENT AGAINST A LABOR ORGANIZATION IN A
DISTRICT COURT OF THE UNITED STATES SHALL BE ENFORCEABLE ONLY AGAINST
THE ORGANIZATION AS AN ENTITY AND AGAINST ITS ASSETS, AND SHALL NOT BE
ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER OR HIS ASSETS. 

"(C)  FOR THE PURPOSES OF ACTIONS AND PROCEEDINGS BY OR AGAINST LABOR
ORGANIZATIONS IN THE DISTRICT COURTS OF THE UNITED STATES, DISTRICT
COURTS SHALL BE DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1)
IN THE DISTRICT IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL
OFFICE, OR (2) IN ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR
AGENTS ARE ENGAGED IN REPRESENTING OR ACTING FOR EMPLOYEE MEMBERS. 

"(D)  THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS OF ANY
COURT OF THE UNITED STATES UPON AN OFFICER OR AGENT OF A LABOR
ORGANIZATION, IN HIS CAPACITY AS SUCH, SHALL CONSTITUTE SERVICE UPON
THE LABOR ORGANIZATION. 

"(E)  IN ACTIONS AND PROCEEDINGS INVOLVING VIOLATIONS OF AGREEMENTS
BETWEEN AN EMPLOYER AND A LABOR ORGANIZATION OR OTHER REPRESENTATIVE OF
EMPLOYEES, THE PROVISIONS OF THE ACT OF MARCH 23, 1932, ENTITLED 'AN
ACT TO AMEND THE JUDICIAL CODE AND TO DEFINE AND LIMIT THE JURISDICTION
OF COURTS SITTING IN EQUITY AND FOR OTHER PURPOSES,' SHALL NOT HAVE ANY
APPLICATION IN RESPECT OF EITHER PARTY." 

3.  HOUSE REPORT (NO. 245, 80TH CONG., 1ST SESS.): 

A. MAJORITY: 

"IT MAKES LABOR ORGANIZATIONS EQUALLY RESPONSIBLE WITH EMPLOYERS FOR
CONTRACT VIOLATIONS AND PROVIDES FOR SUIT BY EITHER AGAINST THE OTHER
IN THE UNITED STATES DISTRICT COURTS."  (P. 6.) 

"SECTION 302 DEALS IN IMPROVED FORM WITH ANOTHER SUBJECT WHICH WAS
INCLUDED IN LAST YEAR'S CASE BILL.  IT PROVIDES THAT ACTIONS AND
PROCEEDINGS INVOLVING VIOLATIONS OF CONTRACTS BETWEEN EMPLOYERS AND
LABOR ORGANIZATIONS MAY BE BROUGHT BY EITHER PARTY IN ANY DISTRICT
COURT OF THE UNITED STATES ...  . 

     *         *         *         *   * 

"WHEN LABOR ORGANIZATIONS MAKE CONTRACTS WITH EMPLOYERS, SUCH
ORGANIZATIONS SHOULD BE SUBJECT TO THE SAME JUDICIAL REMEDIES AND
PROCESSES IN RESPECT OF PROCEEDINGS INVOLVING VIOLATIONS OF SUCH
CONTRACTS AS THOSE APPLICABLE TO ALL OTHER CITIZENS.  LABOR
ORGANIZATIONS CANNOT JUSTIFIABLY ASK TO BE TREATED AS RESPONSIBLE
CONTRACTING PARTIES UNLESS THEY ARE WILLING TO ASSUME THE
RESPONSIBILITY OF SUCH CONTRACTS TO THE SAME EXTENT AS THE OTHER PARTY
MUST ASSUME HIS.  PUBLIC OPINION POLLS IN EVIDENCE BEFORE THE COMMITTEE
SHOW THAT NEARLY 75 PERCENT OF THE UNION MEMBERS THEMSELVES CONCUR IN
THIS VIEW.  FOR THIS REASON, NOT ONLY DOES THE SECTION, AS HERETOFORE
POINTED OUT, MAKE THE LABOR ORGANIZATION EQUALLY SUABLE, BUT IT ALSO
MAKES THE NORRIS-LAGUARDIA ACT INAPPLICABLE  ...  .  AMONG OTHER
THINGS, THIS CHANGE MAKES APPLICABLE IN SUCH CASES AS THESE THE RULES
OF EVIDENCE THAT APPLY IN SUITS INVOLVING ALL OTHER CITIZENS."  (PP. 45
46.) 

B. MINORITY: 

"SECTION 302 OF TITLE III HAS THE DUAL PURPOSE FIRST OF GIVING THE
FEDERAL COURTS JURISDICTION, WITHOUT REGARD TO THE AMOUNT IN
CONTROVERSY, TO ENTERTAIN ACTIONS INVOLVING VIOLATIONS OF COLLECTIVE
BARGAINING AGREEMENTS AFFECTING COMMERCE OR WHERE THE COURT OTHERWISE
HAS JURISDICTION OF THE CAUSE; AND, SECOND, OF PROVIDING FOR SUIT
AGAINST LABOR ORGANIZATIONS WHOSE ACTIVITIES AFFECT COMMERCE, WITH
JUDGMENT ENFORCEABLE ONLY AGAINST THE UNION ASSETS.  IN ANY SUCH SUITS
THE UNION WOULD BE BOUND BY THE ACTS OF ITS AGENTS AND THE COURTS WOULD
HAVE THE POWER TO GRANT INJUNCTIVE RELIEF REGARDLESS OF THE PROVISIONS
OF THE NORRIS-LAGUARDIA ACT. 

"THE QUESTION OF AMENABILITY OF UNIONS TO SUIT HAS BEEN THE SUBJECT
OF MUCH MISUNDERSTANDING.  UNIONS HAVE NEVER BEEN EXEMPT FROM SUIT
BECAUSE THEY ARE LABOR UNIONS.  IT HAS ONLY BEEN DIFFICULT TO REACH
UNION ASSETS BECAUSE UNIONS ARE UNINCORPORATED ASSOCIATIONS.  AND EVEN
HERE, THESE DIFFICULTIES HAVE BEEN REMOVED IN THE GREAT MAJORITY OF
STATES.  ACTUALLY, THERE ARE ONLY 13 STATES WHERE UNION FUNDS CANNOT BE
EASILY REACHED UNDER LAWS IN EFFECT PERMITTING SATISFACTION OF
JUDGMENTS FROM THE CENTRAL FUNDS OF THE UNION  ...  .  OF THE REMAINING
35 STATES, THERE ARE 10 WHICH BY STATUTE PERMIT THE UNION ASSETS TO BE
REACHED BY REPRESENTATIVE SUITS IN ANY TYPE OF ACTION AND THERE ARE 25
WHICH PERMIT SUITS AGAINST UNIONS IN THE COMMON NAME OF THE UNION, IN
SOME CASES WITH LIABILITY ATTACHING NOT ONLY TO THE UNION FUNDS, BUT
ALSO TO THE ASSETS OF EVERY INDIVIDUAL MEMBER OF THE UNION. 

"THIS BILL WOULD SEEK TO OPEN THE FEDERAL COURTS GENERALLY TO SUITS
BY AND AGAINST LABOR ORGANIZATIONS.  SINCE THE ADOPTION OF THE FEDERAL
RULES OF CIVIL PROCEDURE, HOWEVER, THE FEDERAL COURTS HAVE ALREADY BEEN
AUTHORIZED TO ENTERTAIN SUITS BY AND AGAINST LABOR ORGANIZATIONS IN THE
35 STATES WHICH ALREADY PERMIT EFFECTIVE RECOVERY AGAINST UNION FUNDS. 
RULE 17(B) OF THOSE RULES PROVIDES IN PART AS FOLLOWS: 

"  ...  THE CAPACITY OF AN INDIVIDUAL, OTHER THAN ONE ACTING IN A
REPRESENTATIVE CAPACITY, TO SUE OR BE SUED SHALL BE DETERMINED BY THE
LAW OF HIS DOMICILE  ... .  IN ALL OTHER CASES CAPACITY TO SUE OR BE
SUED SHALL BE DETERMINED BY THE LAW OF THE STATE IN WHICH THE DISTRICT
COURT IS HELD; EXCEPT THAT A PARTNERSHIP OR OTHER UNINCORPORATED
ASSOCIATION, WHICH HAS NO SUCH CAPACITY BY THE LAW OF SUCH STATE, MAY
SUE OR BE SUED IN ITS COMMON NAME FOR THE PURPOSE OF ENFORCING FOR OR
AGAINST IT A SUBSTANTIVE RIGHT EXISTING UNDER THE CONSTITUTION OR LAWS
OF THE UNITED STATES. 

"IT IS CONCLUDED, THEREFORE, THAT THERE NOW EXISTS ONLY A VERY NARROW
FIELD FOR NECESSARY FEDERAL LEGISLATIVE ACTION.  THERE IS PERCEIVED
VERY LITTLE REASON WHY THE FEDERAL COURTS SHOULD NOW BE OPENED TO SO
WIDE A DEGREE, INVITING LITIGATION, WHEN RULES PRESENTLY IN EXISTENCE
EFFECTIVELY PERMIT SUIT AND MAY, IN THE SOUND DISCRETION OF THE UNITED
STATES SUPREME COURT, BE BROADENED EVEN FURTHER TO PERMIT SUIT
REGARDLESS OF STATE PROCEDURAL LAWS AND WITHOUT THE NECESSITY OF
FURTHER LEGISLATION. 

"THE QUESTION OF CONFERRING UPON FEDERAL COURTS BROAD POWER TO
ENTERTAIN SUITS FOR VIOLATION OF UNION AGREEMENTS REGARDLESS OF THE
AMOUNT INVOLVED AND APPARENTLY IN COMPLETE DISREGARD OF THE
CONSTITUTIONAL REQUIREMENT OF DIVERSITY OF CITIZENSHIP IS FRAUGHT WITH
GRAVE ISSUES OF POLICY AND LEGALITY.  IT WOULD APPEAR PARTICULARLY
UNWISE TO ABANDON IN THIS FIELD THE PRESENT REQUIREMENT OF THE $3,000
AMOUNT IN CONTROVERSY AS A PREREQUISITE TO FEDERAL JURISDICTION.  IT IS
FEARED THAT THE RESULT WOULD BE TO INVOLVE THE FEDERAL COURTS, ALREADY
OVERBURDENED, WITH A GREAT MASS OF PETTY LITIGATION OVER AMOUNTS LESS
THAN $3,000, EASILY CAPABLE OF BEING ADJUDICATED EFFECTIVELY BY THE
MORE NUMEROUS STATE COURTS.  THIS TYPE OF ACTION WOULD UNDOUBTEDLY
INVITE THE RETURN OF CONDITIONS IN THE FEDERAL COURTS DURING
PROHIBITION DAYS, WHEN THEY BOGGED DOWN IN LITIGATION ORDINARILY
HANDLED BY THE AVERAGE POLICE COURT. 

"AS TO LEGALITY, THE BILL WOULD APPARENTLY GIVE THE FEDERAL COURTS
JURISDICTION OF DISPUTES OVER UNION AGREEMENTS AFFECTING COMMERCE
REGARDLESS OF DIVERSITY OF CITIZENSHIP OF THE PARTIES.  THE
CONSTITUTION LIMITS SUITS IN THE FEDERAL COURTS TO CASES ARISING UNDER
THE CONSTITUTION AND LAWS OF THE UNITED STATES OR INVOLVING DIVERSITY
OF CITIZENSHIP (CONSTITUTION, ART. 3, SEC. 2).  THE BILL APPARENTLY
ATTEMPTS TO FOUND JURISDICTION UPON THE CONSTITUTION AND LAWS OF THE
UNITED STATES BY THE USE OF THE WORDS 'IF SUCH AGREEMENT AFFECTS
COMMERCE.'  THERE WOULD BE INVOLVED HERE, HOWEVER, NO SUBSTANTIVE RIGHT
UNDER THE LAWS OF THE UNITED STATES OR UNDER THE CONSTITUTION. 
ACTUALLY SUBSTANTIVE LEGAL QUESTIONS AS TO A CONTRACT DISPUTE WOULD BE
DECIDED IN ACCORDANCE WITH APPLICABLE STATE LAW.  THE UNITED STATES
SUPREME COURT HAS HELD THAT THE FACT THAT THE CIRCUMSTANCES INVOLVE
ENGAGING IN INTERSTATE COMMERCE WILL NOT PERMIT THE FEDERAL COURTS TO
ASSUME JURISDICTION WHERE THERE IS NO DIVERSITY OF CITIZENSHIP (IN RE
METROPOLITAN RAILWAY RECEIVERSHIP, 208 U.S. 90, 28 S. CT. 219, 52 L.
ED. 403).  IT IS THEREFORE CONCLUDED THAT THIS ASPECT OF THE BILL
CONSTITUTES AN APPROACH WHICH IS OF DOUBTFUL LEGALITY AND CERTAINLY IS
BOTH HASTY AND UNWISE. 

"IT IS NOTED THAT THE BILL MAKES AN EFFORT TO SECURE UNION
RESPONSIBILITY FOR THE ACTS OF ITS AGENTS.  VERY GENERAL LANGUAGE IS
USED.  IT IS SUBMITTED, HOWEVER, THAT, INSTEAD, CARE SHOULD BE USED IN
DETERMINING WHAT ARE ACTS OF DULY AUTHORIZED AGENTS ACTING WITHIN THE
SCOPE OF THEIR AUTHORITY  ...  ."  (PP. 108-110.) 

4.  HOUSE DEBATES: 

A. REPRESENTATIVE HARTLEY: 

"IT MAKES LABOR ORGANIZATIONS EQUALLY RESPONSIBLE WITH EMPLOYERS FOR
CONTRACT VIOLATIONS AND PROVIDES FOR SUIT BY EITHER AGAINST THE OTHER
IN THE UNITED STATES DISTRICT COURTS."  (93 CONG. REC. 3424.) 

B. BOTH MR. HARTLEY AND MR. CASE AGREED TO THE FOLLOWING STATEMENT BY
REPRESENTATIVE BARDEN: 

"IT IS MY UNDERSTANDING THAT SECTION 302, THE SECTION DEALING WITH
EQUAL RESPONSIBILITY UNDER COLLECTIVE BARGAINING CONTRACTS IN STRIKE
ACTIONS AND PROCEEDINGS IN DISTRICT COURTS CONTEMPLATES NOT ONLY THE
ORDINARY LAWSUITS FOR DAMAGES BUT ALSO SUCH OTHER REMEDIAL PROCEEDINGS,
BOTH LEGAL AND EQUITABLE, AS MIGHT BE APPROPRIATE IN THE CIRCUMSTANCES;
IN OTHER WORDS, PROCEEDINGS COULD, FOR EXAMPLE, BE BROUGHT BY THE
EMPLOYERS, THE LABOR ORGANIZATIONS, OR INTERESTED INDIVIDUAL EMPLOYEES
UNDER THE DECLARATORY JUDGMENTS ACT IN ORDER TO SECURE DECLARATIONS
FROM THE COURT OF LEGAL RIGHTS UNDER THE CONTRACT."  (ID., AT 3656.) 

C. NO OTHER MEMBER OF THE COMMITTEE MADE A STATEMENT WITH REGARD TO
THE SECTION.  NOR DID ANY OTHER MEMBER CAST ANY LIGHT UPON THE
3666.) 

5.  THE BILL PASSED THE HOUSE IN THE SAME FORM AS INTRODUCED. 

B. LEGISLATIVE HISTORY IN THE SENATE: 

1.  HEARINGS BEFORE COMMITTEE ON LABOR AND PUBLIC WELFARE ON S. 55
AND S.J. RES. 22, 80TH CONG., 1ST SESS.: 

A. S. 55, UNDER CONSIDERATION, WAS INTRODUCED BY SENATORS BALL, TAFT
AND SMITH, AND CONTAINED AS SECTION 203:

                   "SUITS BY AND AGAINST LABOR ORGANIZATIONS 

"SEC. 203.  (A)  SUITS FOR VIOLATION OF CONTRACTS CONCLUDED AS THE
RESULT OF COLLECTIVE BARGAINING BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE
AS DEFINED IN THIS ACT MAY BE BROUGHT IN ANY DISTRICT COURT OF THE
UNITED STATES HAVING JURISDICTION OF THE PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHICH REPRESENTS EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE AS DEFINED IN THIS ACT SHALL BE BOUND BY
THE ACTS OF ITS DULY AUTHORIZED AGENTS ACTING WITHIN THE SCOPE OF THEIR
AUTHORITY FROM THE SAID LABOR ORGANIZATION AND MAY SUE OR BE SUED IN
ITS COMMON NAME IN THE COURTS OF THE UNITED STATES:  PROVIDED, THAT ANY
MONEY JUDGMENT AGAINST SUCH LABOR ORGANIZATION SHALL BE ENFORCEABLE
ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST ITS ASSETS, AND
SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER OR HIS ASSETS. 

"(C)  FOR THE PURPOSES OF THIS SECTION DISTRICT COURTS SHALL BE
DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1) IN THE DISTRICT
IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL OFFICE, OR (2) IN
ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR AGENTS ARE
ENGAGED IN PROMOTING OR PROTECTING THE INTERESTS OF EMPLOYEE MEMBERS. 
THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS UPON SUCH
OFFICER OR AGENT SHALL CONSTITUTE SERVICE UPON THE LABOR ORGANIZATION. 

"(D)  ANY EMPLOYEE WHO PARTICIPATES IN A STRIKE OR OTHER INTERFERENCE
WITH THE PERFORMANCE OF AN EXISTING COLLECTIVE-BARGAINING AGREEMENT, IN
VIOLATION OF SUCH AGREEMENT, IF SUCH STRIKE OR INTERFERENCE IS NOT
RATIFIED OR APPROVED BY THE LABOR ORGANIZATION PARTY TO SUCH AGREEMENT
AND HAVING EXCLUSIVE BARGAINING RIGHTS FOR SUCH EMPLOYEE, SHALL LOSE
HIS STATUS AS AN EMPLOYEE OF THE EMPLOYER PARTY TO SUCH AGREEMENT FOR
THE PURPOSES OF SECTIONS 8, 9, AND 10 OF THE NATIONAL LABOR RELATIONS
ACT:  PROVIDED, THAT SUCH LOSS OF STATUS FOR SUCH EMPLOYEE SHALL CEASE
IF AND WHEN HE IS REEMPLOYED BY SUCH EMPLOYER."    B. AGAIN, THERE WAS
CONSIDERABLE GENERAL DISCUSSION REGARDING THE NECESSITY FOR MAKING
UNIONS RESPONSIBLE FOR THEIR AGREEMENTS.  (PP. 389, 635, 780, 965,
1227, 1321, 1422, 1493, 1617, 1656, 1817, 2019, 2349, 2371.)    C. THE
UNIONS, IN TESTIMONY AND FILED STATEMENTS, UNANIMOUSLY OPPOSED THE
STATE LAW DID NOT REGARD THEM AS RESPONSIBLE ON THEIR CONTRACTS WAS
ERRONEOUS.  (PP. 1042, 1154, 1391, 1534, 1547, 2295.)  THE PROCEDURAL
NATURE OF THE PROBLEM WAS, HOWEVER, SELDOM MADE EXPLICIT.  (PP. 689,
1798, 2011.) 

D. AGAIN THE MOST SIGNIFICANT TESTIMONY OCCURRED WHEN SECRETARY OF
LABOR SCHWELLENBACH APPEARED AS A WITNESS: 

"SECRETARY SCHWELLENBACH.  ...  SUITS BY AND AGAINST LABOR
ORGANIZATIONS:  THIS IS A SUBJECT UPON WHICH THERE IS MUCH DISCUSSION
AND ABOUT WHICH THERE IS VERY LITTLE WIDESPREAD INFORMATION.  THE
GENERAL CONCEPT IS THAT LABOR UNIONS ARE EXEMPT FROM SUITS BECAUSE THEY
ARE LABOR UNIONS.  THERE IS NO LEGAL BASIS FOR THIS CONCLUSION.  THEY
ARE EXEMPT FROM SUITS BECAUSE THEY ARE UNINCORPORATED ASSOCIATIONS. 
ACTUALLY THERE ARE ONLY 13 STATES IN THE UNION WHERE UNINCORPORATED
ASSOCIATIONS ARE NOT SUBJECT TO SUITS  ...  . 

"SINCE THE ADOPTION OF THE FEDERAL RULES OF CIVIL PROCEDURE, THERE
ARE 35 STATES WHERE THEY CAN SUE OR BE SUED, IN THE FEDERAL COURTS. 

     *         *      *         *         * 

"SINCE THE FIELD OF NECESSARY LEGISLATIVE ACTION IS SO NARROW, I SEE
NO REASON WHY THE GATES OF THE FEDERAL COURTS SHOULD BE OPENED SO WIDE
AS TO INVITE LITIGATION, AS IS DONE BY THIS PROPOSED SECTION.  SPEAKING
AS A LAWYER AND FORMER MEMBER OF THE FEDERAL JUDICIARY, I HAVE AN
OBJECTION TO THE ABANDONMENT IN THIS FIELD OF THE REQUIREMENT OF THE
$3,000 AMOUNT IN CONTROVERSY AS A PREREQUISITE TO FEDERAL
JURISDICTION.  THIS IS A RIGHT WHICH HAS BEEN JEALOUSLY GUARDED BY THE
CONGRESS AND BY THE FEDERAL COURTS.  TO HAVE THEM CLUTTERED UP WITH A
GREAT MASS OF PETTY LITIGATION INVOLVING AMOUNTS LESS THAN $3,000 WOULD
BRING THEM BACK TO THE POSITION WHICH THEY OCCUPIED DURING PROHIBITION
DAYS WHEN THEY BECAME JUST A LITTLE BIT ABOVE THE LEVEL OF THE AVERAGE
POLICE COURT INSOFAR AS CRIMINAL WORK WAS CONCERNED. 

"I DO NOT SEE WHY IT IS NECESSARY IN THIS FIELD TO ABANDON THE
DIVERSITY OF CITIZENSHIP REQUIREMENT.  IN FACT I DOUBT THAT IT CAN BE
ABANDONED CONSTITUTIONALLY.  THE CONSTITUTION, AS YOU KNOW, LIMITS
SUITS IN THE FEDERAL COURTS TO CASES ARISING UNDER THE CONSTITUTION AND
THE LAWS OF THE UNITED STATES OR INVOLVING DIVERSITY OF CITIZENSHIP. 

"I GRAPPLED WITH THE QUESTION OF WHAT THE MEANING OF 'ARISING UNDER
THE LAWS OF THE UNITED STATES' WAS A GOOD MANY TIMES AND I MAKE NO
CATEGORICAL STATEMENT AS TO WHETHER OR NOT UNDER THIS PROPOSED
LEGISLATION THE COURTS WOULD HOLD THAT SUITS SO STARTED WOULD ARISE
UNDER THE LAWS OF THE UNITED STATES.  HOWEVER, THE GENERAL CONCEPT
ALWAYS HAS BEEN IN PRIVATE LITIGATION THAT A NECESSARY PREREQUISITE TO
FEDERAL JURISDICTION IS DIVERSITY OF CITIZENSHIP.  IN ADDITION TO THAT,
CARE SHOULD BE USED IN DETERMINING WHAT ARE ACTS OF DULY AUTHORIZED
AGENTS OPERATING WITHIN THE SCOPE OF THEIR AUTHORITY.  TO THAT EXTENT A
DISTINCTION MUST BE MADE BETWEEN LABOR UNIONS AND OTHER ORGANIZATIONS. 
THE QUESTION WAS FULLY DISCUSSED, STUDIED, AND ARGUED BY THE CONGRESS
AT THE TIME OF THE PASSAGE OF THE NORRIS-LAGUARDIA ACT AND THE LANGUAGE
THERE USED LIMITED THE LIABILITY OF THE ORGANIZATION TO THOSE 'UNLAWFUL
ACTS OF INDIVIDUAL OFFICERS, MEMBERS OR AGENTS,' WHERE THERE IS 'CLEAR
PROOF OF ACTUAL PARTICIPATION IN OR ACTUAL AUTHORIZATION OF SUCH ACTS
OR OF RATIFICATION OF SUCH ACTS AFTER ACTUAL KNOWLEDGE THEREOF.'  WITH
FEW EXCEPTIONS I HAVE FOUND THAT THE OFFICERS OF INTERNATIONAL UNIONS
WERE JUST AS ANXIOUS TO PREVENT THE BREAKING OF CONTRACTS AS WERE THE
EMPLOYERS.  I FOUND THAT THE OFFICERS OF LOCAL UNIONS BY AND LARGE WERE
MUCH MORE ANXIOUS TO PREVENT BREAKING OF CONTRACTS THAN SOME SMALL
GROUPS WITHIN THE UNION.  I RESPECTFULLY SUGGEST THAT THE LANGUAGE OF
THE NORRIS-LAGUARDIA ACT SHOULD BE INSERTED IN THE PROVISION OF THIS

"THE CHAIRMAN (SENATOR TAFT).  MR. SECRETARY, OF COURSE, THE BASIS
FOR THE JURISDICTION IS THE FEDERAL LAW - IN OTHER WORDS, WE ARE SAYING
THAT ALL MATTERS OF COLLECTIVE-BARGAINING CONTRACTS SHALL BE MADE IN
CERTAIN WAYS; THAT BOTH PARTIES SHALL BE COMPELLED TO NEGOTIATE THEM,
AND THEY FURNISH THE SOLUTION FOR THE DIFFICULTY, WHICH IS AN
INTERSTATE COMMERCE DIFFICULTY.  I DON'T QUITE SEE WHY SUITS REGARDING
SUCH COLLECTIVE-BARGAINING CONTRACTS, WHEN MADE, ARE NOT PROPERLY THE
SUBJECT OF FEDERAL LAW ARISING UNDER THE LAWS OF THE UNITED STATES,
THEREFORE SUBJECT PROPERLY TO THE JURISDICTION OF THE FEDERAL COURTS. 
I DON'T UNDERSTAND HOW WE CAN COVER THE WHOLE SUBJECT, AS WE DO, IN
FEDERAL LAWS, AND THEN SAY, WHEN YOU COME DOWN TO SUING ABOUT IT, THAT
THE FEDERAL COURT HAS NO JURISDICTION.  I DON'T UNDERSTAND THAT. 

"SECRETARY SCHWELLENBACH.  I AM NOT CONTENDING THAT THE FEDERAL COURT
SHOULD NOT HAVE JURISDICTION.  MY TWO OBJECTIONS ARE THAT YOU SHOULD
NOT CLUTTER UP THE FEDERAL COURTS WITH SMALL SUITS AND  ...  . 

"THE CHAIRMAN.  I SHOULD NOT THINK THERE WOULD BE MANY SUITS AGAINST
UNIONS FOR VIOLATING COLLECTIVE-BARGAINING CONTRACTS.  I THINK THAT
WOULD BE ONLY A CLUB IN A CLOSET.  IT WOULD BE AN AWKWARD SUIT.  MANY
UNIONS WOULD NOT HAVE ANY FUNDS TO COLLECT, AND I SHOULD THINK THAT ANY
SUIT BROUGHT WOULD CERTAINLY INVOLVE MORE THAN $3,000.  IT DOESN'T SEEM
TO ME THAT THIS WOULD BRING ANY GREAT DELUGE OF LITIGATION UPON THE
FEDERAL COURTS. 

"SECRETARY SCHWELLENBACH.  I AM TESTIFYING AS A FORMER FEDERAL JUDGE
WITH A DESIRE TO PROTECT THE COURTS FROM A LARGE VOLUME OF SMALL
MATTERS. 

"SENATOR ELLENDER.  WHAT LIMITATION WOULD YOU MAKE? 

"SENATOR SCHWELLENBACH.  YOU SHOULD HAVE THE SAME REQUIREMENTS FOR
JURISDICTION IN REFERENCE TO THESE SUITS, $3,000 THE AMOUNT IN
CONTROVERSY, AND DIVERSITY OF CITIZENSHIP.  THEY HAVE GOT THE RIGHT TO
GO INTO THE STATE COURTS, YOU KNOW, IN 35 OF THE 48 STATES. 

"SENATOR BALL.  AREN'T THERE SOME PRETTY IMPORTANT INDUSTRIAL STATES
AMONG THOSE 13, THOUGH, WHERE THEY CANNOT GO INTO THE STATE COURTS,
SUCH AS MASSACHUSETTS AND VIRGINIA, RHODE ISLAND? 

"SENATOR DONNELL.  DON'T LEAVE OUT ILLINOIS AND MISSOURI. 
(LAUGHTER.) 

"SECRETARY SCHWELLENBACH.  I AM NOT GOING TO GET INTO THAT ONE. 

"SENATOR PEPPER.  MR. SECRETARY, IN ANY OF THESE 13 STATES THAT YOU
HAVE MENTIONED, WHERE AN UNINCORPORATED ASSOCIATION IS NOT SUABLE, IF
THOSE STATES WERE TO PROVIDE THAT THEY ARE SUABLE, UNDER THE FEDERAL
RULES THEY WOULD BE SUABLE IN THE FEDERAL COURTS.  SO IN THOSE CASES
THE MATTER WOULD BE UP TO THE STATE TO DETERMINE WHETHER THE FEDERAL
COURTS SHOULD HAVE JURISDICTION OR NOT, AND WHETHER THEY WOULD BE
SUABLE IN THE STATE COURTS OR NOT. 

"SECRETARY SCHWELLENBACH.  I AM NOT OBJECTING TO THE PROVISION,
EXCEPT I DON'T LIKE THE IDEA. 

"SENATOR PEPPER.  THAT IS THE FACT, ISN'T IT? 

"SECRETARY SCHWELLENBACH.  YES. 

"SENATOR PEPPER.  NOW, IN THE SECOND PLACE I GET THE INTIMATION FROM
YOUR STATEMENT THAT YOU MADE THE DISTINCTION, WHICH I WAS NOT QUITE
SURE THE CHAIRMAN RECOGNIZED OR AGREED TO, NAMELY, THAT THERE WAS A
DIFFERENCE BETWEEN INTRUSTING A RIGHT THAT EXISTS UNDER THE FEDERAL LAW
OR FEDERAL CONSTITUTION, FOR WHICH THERE COULD BE REDRESS IN THE
FEDERAL COURT, AND THE ATTEMPT OF CONGRESS MERELY TO PROVIDE A FEDERAL
FORUM, FEDERAL PROCEDURE, FOR THE DETERMINATION OF THE SUBSTANTIVE
RIGHTS WHICH MIGHT BE ENFORCED BY STATE LAW?  ISN'T THAT A DISTINCTION
THAT YOU MEANT TO SUGGEST? 

"SECRETARY SCHWELLENBACH.  WHEN I WAS ON THE BENCH I SUPPOSE I TRIED
HALF A DOZEN OR 10 CASES INVOLVING THE QUESTION OF WHETHER OR NOT THERE
WAS JURISDICTION, BECAUSE THEY AROSE UNDER THE FEDERAL STATUTE, AND
THEY ARE TOUGH, VERY TOUGH, VERY HARD TO DISTINGUISH.  AND I AM NOT
MAKING ANY CATEGORICAL STATEMENT. 

"SENATOR PEPPER.  I MEAN TO SUGGEST THIS DISTINCTION:  IF CONGRESS
SHOULD PROVIDE A FORUM  ...  . 

"SECRETARY SCHWELLENBACH.  THAT IS WHAT THIS PROPOSES TO DO; PROVIDE
A FEDERAL FORUM FOR SUITS AGAINST LABOR. 

"SENATOR PEPPER.  FOR VIOLATION OF SUBSTANTIVE RIGHTS.  IF CONGRESS
WERE TO LAY DOWN RULES OF DAMAGES IN CASES WITHIN CONGRESSIONAL
JURISDICTION - THAT IS, INVOLVING INTERSTATE COMMERCE - IF CONGRESS
WERE TO LAY DOWN THE OBLIGATIONS OF THE PARTIES AND PRESCRIBE THE RULES
AND MEASURE OF DAMAGES, AND SO FORTH, FOR THE VIOLATION OF THOSE
OBLIGATIONS, THEN A SUIT FOR THE ENFORCEMENT OF THE PENALTY PROVIDED,
OR FOR THE REDRESS ALLOWED, MIGHT PROPERLY BE BROUGHT IN THE FEDERAL
COURTS, BUT WHAT SEEMS TO BE THE INTENTION HERE IS TO TRANSFER TO THE
FEDERAL COURTS SUITS FOR BREACH OF CONTRACT, THE CONTRACTS BEING
ENTERED INTO UNDER LOCAL LAW, AND REDRESS IN ALL BUT 13 STATES BEING
AVAILABLE NOW UNDER LOCAL LAW."  (PP. 56-58.) 

2.  THE BILL AS REPORTED:

                   "SUITS BY AND AGAINST LABOR ORGANIZATIONS. 

"SEC. 301.  (A)  SUITS FOR VIOLATION OF CONTRACTS CONCLUDED AS THE
RESULT OF COLLECTIVE BARGAINING BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE
AS DEFINED IN THIS ACT MAY BE BROUGHT IN ANY DISTRICT COURT OF THE
UNITED STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO
THE AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHICH REPRESENTS EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE AS DEFINED IN THIS ACT MAY SUE OR BE SUED
IN ITS COMMON NAME IN THE COURTS OF THE UNITED STATES: PROVIDED, THAT
ANY MONEY JUDGMENT AGAINST SUCH LABOR ORGANIZATION SHALL BE ENFORCEABLE
ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST ITS ASSETS, AND
SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER OR HIS ASSETS. 

"(C)  FOR THE PURPOSES OF THIS SECTION DISTRICT COURTS SHALL BE
DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1) IN THE DISTRICT
IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL OFFICE, OR (2) IN
ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR AGENTS ARE
ENGAGED IN PROMOTING OR PROTECTING THE INTERESTS OF EMPLOYEE MEMBERS. 
THE SERVICE OF LEGAL PROCESS UPON SUCH OFFICER OR AGENT SHALL
CONSTITUTE SERVICE UPON THE LABOR ORGANIZATION, AND MAKE SUCH
ORGANIZATION A PARTY TO THE SUIT." 

3.  SENATE REPORT (NO. 105, 80TH CONG., 1ST SESS.): 

A. MAJORITY:

           "ENFORCEMENT OF CONTRACT RESPONSIBILITIES. 

"THE COMMITTEE BILL MAKES COLLECTIVE-BARGAINING CONTRACTS EQUALLY
BINDING AND ENFORCEABLE ON BOTH PARTIES.  IN THE JUDGMENT OF THE
COMMITTEE, BREACHES OF COLLECTIVE AGREEMENT HAVE BECOME SO NUMEROUS
THAT IT IS NOT SUFFICIENT TO ALLOW THE PARTIES TO INVOKE THE PROCESSES
OF THE NATIONAL LABOR RELATIONS BOARD WHEN SUCH BREACHES OCCUR (AS THE
BILL PROPOSES TO DO IN TITLE I).  WE FEEL THAT THE AGGRIEVED PARTY
SHOULD ALSO HAVE A RIGHT OF ACTION IN THE FEDERAL COURTS.  SUCH A
POLICY IS COMPLETELY IN ACCORD WITH THE PURPOSE OF THE WAGNER ACT WHICH
THE SUPREME COURT DECLARED WAS 'TO COMPEL EMPLOYERS TO BARGAIN
COLLECTIVELY WITH THEIR EMPLOYEES TO THE END THAT AN EMPLOYMENT
CONTRACT, BINDING ON BOTH PARTIES, SHOULD BE MADE' (H.J. HEINZ & CO.,
311 U.S. 514). 

"THE LAWS OF MANY STATES MAKE IT DIFFICULT TO SUE EFFECTIVELY AND TO
RECOVER A JUDGMENT AGAINST AN UNINCORPORATED LABOR UNION.  IT IS
DIFFICULT TO REACH THE FUNDS OF A UNION TO SATISFY A JUDGMENT AGAINST
IT.  IN SOME STATES IT IS NECESSARY TO SERVE ALL THE MEMBERS BEFORE AN
ACTION CAN BE MAINTAINED AGAINST THE UNION.  THIS IS AN ALMOST
IMPOSSIBLE PROCESS.  DESPITE THESE PRACTICAL DIFFICULTIES IN THE
COLLECTION OF A JUDGMENT AGAINST A UNION, THE NATIONAL LABOR RELATIONS
BOARD HAS HELD IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO INSIST
THAT A UNION INCORPORATE OR POST A BOND TO ESTABLISH SOME SORT OF LEGAL
RESPONSIBILITY UNDER A COLLECTIVE AGREEMENT. 

"PRESIDENT TRUMAN, IN OPENING THE MANAGEMENT-LABOR CONFERENCE IN
NOVEMBER 1945, TOOK COGNIZANCE OF THIS CONDITION.  HE SAID VERY PLAINLY
THAT COLLECTIVE AGREEMENTS SHOULD BE MUTUALLY BINDING ON BOTH PARTIES
TO THE CONTRACT: 

"WE SHALL HAVE TO FIND METHODS NOT ONLY OF PEACEFUL NEGOTIATIONS OF
LABOR CONTRACTS, BUT ALSO OF INSURING INDUSTRIAL PEACE FOR THE LIFETIME
OF SUCH CONTRACTS.  CONTRACTS ONCE MADE MUST BE LIVED UP TO AND SHOULD
BE CHANGED ONLY IN THE MANNER AGREED UPON BY THE PARTIES.  IF WE EXPECT
CONFIDENCE IN AGREEMENTS MADE, THERE MUST BE RESPONSIBILITY AND
INTEGRITY ON BOTH SIDES IN CARRYING THEM OUT. 

"IF UNIONS CAN BREAK AGREEMENTS WITH RELATIVE IMPUNITY, THEN SUCH
AGREEMENTS DO NOT TEND TO STABILIZE INDUSTRIAL RELATIONS.  THE
EXECUTION OF AN AGREEMENT DOES NOT BY ITSELF PROMOTE INDUSTRIAL PEACE. 
THE CHIEF ADVANTAGE WHICH AN EMPLOYER CAN REASONABLY EXPECT FROM A
COLLECTIVE LABOR AGREEMENT IS ASSURANCE OF UNINTERRUPTED OPERATION
DURING THE TERM OF THE AGREEMENT.  WITHOUT SOME EFFECTIVE METHOD OF
ASSURING FREEDOM FROM ECONOMIC WARFARE FOR THE TERM OF THE AGREEMENT,
THERE IS LITTLE REASON WHY AN EMPLOYER WOULD DESIRE TO SIGN SUCH A
CONTRACT. 

"CONSEQUENTLY, TO ENCOURAGE THE MAKING OF AGREEMENTS AND TO PROMOTE
INDUSTRIAL PEACE THROUGH FAITHFUL PERFORMANCE BY THE PARTIES,
COLLECTIVE AGREEMENTS AFFECTING INTERSTATE COMMERCE SHOULD BE
ENFORCEABLE IN THE FEDERAL COURTS.  OUR AMENDMENT WOULD PROVIDE FOR
SUITS BY UNIONS AS LEGAL ENTITIES AND AGAINST UNIONS AS LEGAL ENTITIES
IN THE FEDERAL COURTS IN DISPUTES AFFECTING COMMERCE.    "THE AMENDMENT
SPECIFICALLY PROVIDES THAT ONLY THE ASSETS OF THE UNION CAN BE ATTACHED
TO SATISFY A MONEY JUDGMENT AGAINST IT; THE PROPERTY OF THE INDIVIDUAL
MEMBERS OF THE ORGANIZATION WOULD NOT BE SUBJECT TO ANY LIABILITY UNDER
SUCH A JUDGMENT.  THUS THE MEMBERS OF THE UNION WOULD SECURE ALL THE
ADVANTAGES OF LIMITED LIABILITY WITHOUT INCORPORATION OF THE UNION. 

"THE INITIAL OBSTACLE IN ENFORCING THE TERMS OF A COLLECTIVE
AGREEMENT AGAINST A UNION WHICH HAS BREACHED ITS PROVISIONS IS THE
DIFFICULTY OF SUBJECTING THE UNION TO PROCESS.  THE GREAT MAJORITY OF
LABOR UNIONS ARE UNINCORPORATED ASSOCIATIONS.  AT COMMON LAW VOLUNTARY
ASSOCIATIONS ARE NOT SUABLE AS SUCH (WILSON V. AIRLINE COAL COMPANY,
215 IOWA 855; IRON MOLDERS' UNION V. ALLIS-CHALMERS COMPANY, C.C.A. 7,
166 F. 45).  AS A CONSEQUENCE THE RULE IN MOST JURISDICTIONS, IN THE
ABSENCE OF STATUTE, IS THAT UNINCORPORATED LABOR UNIONS CANNOT BE SUED
IN THEIR COMMON NAME (GRANT V. CARPENTERS' DISTRICT COUNCIL, 322 PA.
ST. 62).  ACCORDINGLY, THE DIFFICULTY OR IMPOSSIBILITY OF ENFORCING THE
TERMS OF A COLLECTIVE AGREEMENT IN A SUIT AT LAW AGAINST A UNION ARISES
FROM THE FACT THAT EACH INDIVIDUAL MEMBER OF THE UNION MUST BE NAMED
AND MADE A PARTY TO THE SUIT. 

"SOME STATES HAVE ENACTED STATUTES WHICH SUBJECT UNINCORPORATED
ASSOCIATIONS TO THE JURISDICTION OF LAW COURTS.  THESE STATUTES ARE BY
NO MEANS UNIFORM; SOME PERTAIN TO FRATERNAL SOCIETIES, WELFARE
ORGANIZATIONS, ASSOCIATIONS DOING BUSINESS, ETC., AND IN SOME STATES
THE COURTS HAVE EXCLUDED LABOR UNIONS FROM THEIR APPLICATION. 

"ON THE OTHER HAND, SOME STATES, INCLUDING CALIFORNIA AND MONTANA,
HAVE CONSTRUED STATUTES PERMITTING COMMON NAME SUITS AGAINST
ASSOCIATIONS DOING BUSINESS TO APPLY TO LABOR UNIONS (ARMSTRONG V.
SUPERIOR COURT, 173 CALIF. 341; VANCE V. MCGINLEY, 39 MONT. 46). 
SIMILARLY, BUT MORE RESTRICTIVE, IN A CONSIDERABLE NUMBER OF STATES THE
ACTION IS PERMITTED AGAINST THE UNION OR REPRESENTATIVES IN PROCEEDINGS
IN WHICH THE PLAINTIFF COULD HAVE MAINTAINED SUCH AN ACTION AGAINST ALL
THE ASSOCIATES  ...  . 

"IN AT LEAST ONE JURISDICTION, THE DISTRICT OF COLUMBIA, THE LIBERAL
VIEW IS HELD THAT UNINCORPORATED LABOR UNIONS MAY BE SUED AS LEGAL
ENTITIES, EVEN IN THE ABSENCE OF STATUTE (BUSBY V. ELEC.  UTIL.  EMP.
UNION, U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, NO. 8548,
JAN. 22, 1945). 

"IN THE FEDERAL COURTS, WHETHER AN UNINCORPORATED UNION CAN BE SUED
DEPENDS UPON THE PROCEDURAL RULES OF THE STATE IN WHICH THE ACTION IS
BROUGHT (BUSBY V. ELEC.  UTIL.  EMPL.  UNION (323 U.S. 72), U.S.
SUPREME COURT, 89 LAW.  ADV.  OP. 108, DEC. 4, 1944). 

"THE NORRIS-LAGUARDIA ACT HAS INSULATED LABOR UNIONS, IN THE FIELD OF
INJUNCTIONS, AGAINST LIABILITY FOR BREACH OF CONTRACT.  IT HAS BEEN
HELD BY A FEDERAL COURT THAT STRIKES, PICKETING, OR BOYCOTTING, WHEN
CARRIED ON IN BREACH OF A COLLECTIVE AGREEMENT, INVOLVE A 'LABOR
DISPUTE' UNDER THE ACT SO AS TO MAKE THE ACTIVITY NOT ENJOINABLE
WITHOUT A SHOWING OF THE REQUIREMENTS WHICH CONDITION THE ISSUANCE OF
AN INJUNCTION UNDER THE ACT (WILSON & CO. V. (BIRL,) 105 F.(2D) 948,
C.C.A. 3). 

"A GREAT NUMBER OF STATES HAVE ENACTED ANTI-INJUNCTION STATUTES
MODELED AFTER THE NORRIS-LAGUARDIA ACT, AND THE COURTS OF MANY OF THESE
JURISDICTIONS HAVE HELD THAT A STRIKE IN VIOLATION OF A COLLECTIVE
AGREEMENT IS A 'LABOR DISPUTE' AND CANNOT BE ENJOINED (NEVINS V.
KASMACH, 279 N.Y. 323; BULKIN V. SACKS, 31 PA., D AND C 501). 

"THERE ARE NO FEDERAL LAWS GIVING EITHER AN EMPLOYER OR EVEN THE
GOVERNMENT ITSELF ANY RIGHT OF ACTION AGAINST A UNION FOR ANY BREACH OF
CONTRACT.  THUS THERE IS NO 'SUBSTANTIVE RIGHT' TO ENFORCE, IN ORDER TO
MAKE THE UNION SUABLE AS SUCH IN FEDERAL COURTS. 

"EVEN WHERE UNIONS ARE SUABLE, THE UNION FUNDS MAY NOT BE REACHED FOR
PAYMENT OF DAMAGES AND ANY JUDGMENTS OR DECREES RENDERED AGAINST THE
ASSOCIATION AS AN ENTITY MAY BE UNENFORCEABLE.  (SEE AALCO LAUNDRY CO.
V. LAUNDRY LINEN UNION, 115 S.W.2D 89 MO. APP.)  HOWEVER, ONLY WHERE
STATUTES PROVIDE FOR RECOGNITION OF THE LEGAL STATUS OF ASSOCIATIONS DO
ASSOCIATION FUNDS BECOME SUBJECT TO JUDGMENTS (DEENEY V. HOTEL & APT. 
CLERKS' UNION, 134 P.2D 328 (1943), CALIFORNIA). 

"FINANCIAL STATUTORY LIABILITY OF ASSOCIATIONS IS PROVIDED FOR BY
SOME STATES, AMONG WHICH ARE ALABAMA, CALIFORNIA, COLORADO,
CONNECTICUT, DELAWARE, NEW JERSEY, NORTH DAKOTA, AND SOUTH CAROLINA. 
EVEN IN THESE STATES, HOWEVER, WHETHER LABOR UNIONS ARE INCLUDED WITHIN
THE DEFINITION OF 'ASSOCIATION' IS A MATTER OF LOCAL JUDICIAL
INTERPRETATION. 

"IT IS APPARENT THAT UNTIL ALL JURISDICTIONS, AND PARTICULARLY THE
FEDERAL GOVERNMENT, AUTHORIZE ACTIONS AGAINST LABOR UNIONS AS LEGAL
ENTITIES, THERE WILL NOT BE THE MUTUAL RESPONSIBILITY NECESSARY TO
VITALIZE COLLECTIVE-BARGAINING AGREEMENTS.  THE CONGRESS HAS PROTECTED
THE RIGHT OF WORKERS TO ORGANIZE.  IT HAS PASSED LAWS TO ENCOURAGE AND
PROMOTE COLLECTIVE BARGAINING. 

"STATUTORY RECOGNITION OF THE COLLECTIVE AGREEMENT AS A VALID,
BINDING, AND ENFORCEABLE CONTRACT IS A LOGICAL AND NECESSARY STEP.  IT
WILL PROMOTE A HIGHER DEGREE OF RESPONSIBILITY UPON THE PARTIES TO SUCH
AGREEMENTS, AND WILL THEREBY PROMOTE INDUSTRIAL PEACE. 

"IT HAS BEEN ARGUED THAT THE RESULT OF MAKING COLLECTIVE AGREEMENTS
ENFORCEABLE AGAINST UNIONS WOULD BE THAT THEY WOULD NO LONGER CONSENT
TO THE INCLUSION OF A NO-STRIKE CLAUSE IN A CONTRACT. 

"THIS ARGUMENT IS NOT SUPPORTED BY THE RECORD IN THE FEW STATES WHICH
HAVE ENACTED THEIR OWN LAWS IN AN EFFORT TO SECURE SOME MEASURE OF
UNION RESPONSIBILITY FOR BREACHES OF CONTRACT.  FOUR STATES -
MINNESOTA, COLORADO, WISCONSIN, AND CALIFORNIA - HAVE THUS FAR ENACTED
SUCH LAWS AND, SO FAR AS CAN BE LEARNED, NO-STRIKE CLAUSES HAVE BEEN
CONTINUED ABOUT AS BEFORE. 

"IN ANY EVENT, IT IS CERTAINLY A POINT TO BE BARGAINED OVER AND ANY
UNION WITH THE STATUS OF 'REPRESENTATIVE' UNDER THE NLRA WHICH HAS
BARGAINED IN GOOD FAITH WITH AN EMPLOYER SHOULD HAVE NO RELUCTANCE IN
INCLUDING A NO-STRIKE CLAUSE IF IT INTENDS TO LIVE UP TO THE TERMS OF
THE CONTRACT.  THE IMPROVEMENT THAT WOULD RESULT IN THE STABILITY OF
INDUSTRIAL RELATIONS IS, OF COURSE, OBVIOUS."  (PP. 15-18.) 

"SECTION 301 IS THE ONLY SECTION CONTAINED IN (TITLE III).  IT
RELATES TO SUITS BY AND AGAINST LABOR ORGANIZATIONS FOR BREACH OF
COLLECTIVE BARGAINING AGREEMENTS AND SHOULD BE READ IN CONNECTION WITH
THE PROVISIONS OF SECTION 8 OF TITLE I ALSO DEALING WITH BREACH OF
CONTRACTS.  THE LEGAL EFFECT OF THIS SECTION HAS BEEN DESCRIBED AT SOME
LENGTH IN THE MAIN BODY OF THE REPORT, SUPRA."  (P. 30.) 

B. MINORITY: 

"FINALLY, SECTIONS 8(A)(6) AND 8(B)(5) TOGETHER WITH SECTION 301
WOULD GIVE RISE TO A CONFLICT OF JURISDICTION BETWEEN THE NATIONAL
LABOR RELATIONS BOARD AND THE UNITED STATES DISTRICT COURTS.  THIS
LATTER SECTION PERMITS SUITS IN THE UNITED STATES DISTRICT COURTS FOR
VIOLATIONS OF COLLECTIVE-BARGAINING AGREEMENTS.  PARTIES TO SUCH
AGREEMENTS THUS HAVE THE CHOICE OF BRINGING THEIR ACTION BEFORE THE
BOARD OR THE UNITED STATES DISTRICT COURTS.  OBVIOUSLY, THE NECESSITY
FOR UNIFORM DECISIONS IN SUCH MATTERS AND THE AVOIDANCE OF CONFLICTING
DECISIONAL RULES BY JUDICIAL BODIES MAKE THIS LEGISLATIVE SCHEME WHOLLY
UNDESIRABLE. 

     *         *         *   *         * 

"(1)  SUITS FOR VIOLATION OF COLLECTIVE-BARGAINING AGREEMENTS. 

"THE FEDERAL COURTS HAVE ALWAYS HAD JURISDICTION TO ENTERTAIN SUITS
FOR BREACH OF COLLECTIVE-BARGAINING CONTRACTS AND HAVE AWARDED MONEY
DAMAGES WHERE THE AMOUNT IN CONTROVERSY FULFILLS THE PRESENT $3,000
REQUIREMENT AND DIVERSITY OF CITIZENSHIP EXISTS.  NEDERLANDSCHE
AMERIKAANISCHE STOOMVART MAATSCHAPPIJ V. STEVEDORES AND LONGSHOREMEN'S
BENEVOLENT SOCIETY ((1920), 265 FED. 397).  IT IS APPARENT FROM THE
LANGUAGE OF SECTION 301 THAT NO CHANGE IS MADE IN THE APPLICATION OF
STATE LAW FOR THIS PURPOSE.  THE SECTION STATES THAT: 

"SUITS FOR VIOLATION OF CONTRACTS CONCLUDED  ...  IN AN INDUSTRY
AFFECTING COMMERCE  ...  MAY BE BROUGHT IN ANY DISTRICT COURT OF THE
UNITED STATES  ...  . 

"EVERY DISTRICT COURT WOULD STILL BE REQUIRED TO LOOK TO STATE
SUBSTANTIVE LAW TO DETERMINE THE QUESTION OF VIOLATION.  THIS SECTION
DOES NOT, THEREFORE, CREATE A NEW CAUSE OF ACTION BUT MERELY MAKES THE
EXISTING REMEDY AVAILABLE TO MORE PERSONS BY REMOVING THE REQUIREMENTS
OF AMOUNT IN CONTROVERSY AND OF DIVERSITY OF CITIZENSHIP WHERE
INTERSTATE COMMERCE IS AFFECTED. 

     *         *         *         *      * 

"  ...  THE FEDERAL COURTS WOULD BE MADE AN AVAILABLE TRIBUNAL FOR
EVERY PETTY CAUSE OF ACTION BETWEEN CITIZENS OF THE SAME STATE, AND,
UNDOUBTEDLY IN MANY INSTANCES, RESIDENTS OF THE SAME COMMUNITY, WITH
APPLICATION BY THE FEDERAL JUDGE OF EXACTLY THE SAME PRINCIPLES OF LAW
WHICH WOULD GOVERN THE CONTROVERSY IF IT WERE BROUGHT BEFORE A STATE
JUDGE IN THE MORE NUMEROUS STATE COURTS. 

"ADDED TO THESE PRACTICAL OBJECTIONS, ARE SERIOUS QUESTIONS
CONCERNING THE LEGALITY OF ABANDONING THE DIVERSITY-OF-CITIZENSHIP
REQUIREMENT.  THE CONSTITUTION LIMITS SUITS IN THE FEDERAL COURTS,
INTER ALIA, TO CASES ARISING UNDER THE CONSTITUTION AND LAWS OF THE
UNITED STATES OR INVOLVING DIVERSITY OF CITIZENSHIP (CONSTITUTION, ART.
III, SEC. 2). 

"REFLECTION UPON THESE PRACTICAL AND LEGAL OBJECTIONS TO THIS PHASE
OF THE BILL LEAD TO THE CONCLUSION THAT VERY LITTLE USEFUL PURPOSE
WOULD BE SERVED BY MAKING FEDERAL COURTS MORE BROADLY AVAILABLE FOR THE
ADJUDICATION OF DISPUTES UNDER COLLECTIVE-BARGAINING AGREEMENTS.  THE
ONLY ADVANTAGE, IF INDEED IT MAY BE CALLED AN ADVANTAGE, IS TO GIVE
MANY DISPUTING PARTIES AN OTHERWISE UNAVAILABLE OPPORTUNITY TO CHOOSE A
FEDERAL FORUM RATHER THAN A STATE FORUM.  THE SUBSTANTIVE LAW GOVERNING
THE SETTLEMENT OF THE DISPUTE WOULD NOT BE CHANGED IN THE LEAST NO
MATTER WHICH FORUM WERE CHOSEN.  IT IS OUR CONVICTION THAT THE ADDED
BURDENS UPON THE FEDERAL COURTS AND THE DOUBTFUL LEGALITY OF THIS
MEASURE CONSTITUTE AN EXTRAVAGANT PRICE TO PAY FOR A NEEDLESS
INDULGENCE BENEFITING LITIGANTS WHOSE REMEDIES ARE NOW AS ADEQUATE IN
THE STATE COURTS AS THEY WOULD BE IN THE FEDERAL COURTS."  (PP. 13
14.) 

4.  SENATE DEBATES: 

A. SENATOR TAFT: 

"MR. PRESIDENT, TITLE III OF THE BILL, ON PAGE 53, MAKES UNIONS
SUABLE IN THE FEDERAL COURTS FOR VIOLATION OF CONTRACT.  AS A MATTER OF
LAW UNIONS, OF COURSE, ARE LIABLE IN THEORY ON THEIR CONTRACTS TODAY,
BUT AS A PRACTICAL MATTER IT IS DIFFICULT TO SUE THEM.  THEY ARE NOT
INCORPORATED; THEY HAVE MANY MEMBERS; IN SOME STATES ALL THE MEMBERS
MUST BE SERVED; IT IS DIFFICULT TO KNOW WHO IS TO BE SERVED.  BUT THE
PENDING BILL PROVIDES THEY CAN BE SUED AS IF THEY WERE CORPORATIONS AND
IF A JUDGMENT IS FOUND AGAINST THE LABOR ORGANIZATION, EVEN THOUGH IT
IS AN UNINCORPORATED ASSOCIATION, THE LIABILITY IS ON THE LABOR UNION
AND THE LABOR-UNION FUNDS, AND IT IS NOT ON THE INDIVIDUAL MEMBERS OF
THE UNION, WHERE IT HAS FALLEN IN SOME FAMOUS CASES TO THE GREAT
FINANCIAL DISTRESS OF THE INDIVIDUAL MEMBERS OF LABOR UNIONS."  (93
CONG. REC. 3839.) 

"WHAT IS THE PURPOSE OF TITLE III?  THE PURPOSE OF TITLE III IS TO
GIVE THE EMPLOYER AND THE EMPLOYEE THE RIGHT TO GO TO THE FEDERAL
COURTS TO BRING A SUIT TO ENFORCE THE TERMS OF A COLLECTIVE-BARGAINING
AGREEMENT - EXACTLY THE SAME SUBJECT MATTER WHICH IS CONTAINED IN
TITLES I AND II.  IT IS IMPOSSIBLE TO SEPARATE THEM."  (ID., AT 4141.) 

"FINALLY, WE HAVE A PROVISION IN TITLE III FOR BRINGING A LAWSUIT FOR
BREACH OF CONTRACT.  BREACH OF WHAT KIND OF CONTRACT?  BREACH OF
CONTRACT FOR COLLECTIVE BARGAINING."  (ID., AT 4262.) 

"THE SENATOR FROM OREGON, WHEN SPEAKING ABOUT PARAGRAPH (5) (SEC.
8(B)(5)) ON PAGE 16, STATED CLEARLY THAT FOR THE PURPOSE OF ENFORCING
THE COLLECTIVE-BARGAINING AGREEMENT WE WERE DUPLICATING THE TWO
REMEDIES, ONE BY LAWSUITS IN COURT FOR VIOLATION OF AN AGREEMENT AND
THE OTHER BY MAKING THE VIOLATION OF THE AGREEMENT AN UNFAIR LABOR
PRACTICE.  I DO NOT THINK THAT IS A LEGITIMATE OBJECTION TO SUCH AN
AMENDMENT."  (ID., AT 4437.) 

B. SENATOR BALL: 

"FOURTH, WE GIVE TO EMPLOYERS THE RIGHT TO SUE A UNION IN INTERSTATE
COMMERCE, IN A FEDERAL COURT, FOR VIOLATION OF CONTRACT.  IT DOES NOT
GO BEYOND THAT.  AS A MATTER OF LAW, I THINK THEY HAVE THAT RIGHT, NOW,
BUT BECAUSE UNIONS ARE VOLUNTARY ASSOCIATIONS, THE COMMON LAW IN A
GREAT MANY STATES REQUIRES SERVICE ON EVERY MEMBER OF THE UNION, WHICH
IS VERY DIFFICULT; AND, IF A JUDGMENT IS RENDERED, IT HOLDS EVERY
MEMBER LIABLE FOR THE JUDGMENT. 

"THE PENDING MEASURE, BY PROVIDING THAT THE UNION MAY SUE AND BE SUED
AS A LEGAL ENTITY, FOR A VIOLATION OF CONTRACT, AND THAT LIABILITY FOR
DAMAGES WILL LIE AGAINST UNION ASSETS ONLY, WILL PREVENT A REPETITION
OF THE DANBURY HATTERS CASE, IN WHICH MANY MEMBERS LOST THEIR HOMES
BECAUSE OF A JUDGMENT RENDERED AGAINST THE UNION WHICH ALSO RAN AGAINST
INDIVIDUAL MEMBERS OF THE UNION."  (ID., AT 5014.) 

C. SENATOR SMITH: 

"I NOW COME TO TITLE III, WHICH IS VERY BRIEF, AND MERELY PROVIDES
FOR SUITS BY AND AGAINST LABOR ORGANIZATIONS, AND REQUIRES THAT LABOR
ORGANIZATIONS, AS WELL AS EMPLOYERS, SHALL BE RESPONSIBLE FOR CARRYING
OUT CONTRACTS LEGALLY ENTERED INTO AS THE RESULT OF COLLECTIVE
BARGAINING.  THAT IS ALL TITLE III DOES.  I CANNOT CONCEIVE OF ANY
SOUND REASON WHY A PARTY TO A CONTRACT SHOULD NOT BE RESPONSIBLE FOR
THE FULFILLMENT OF THE CONTRACT; IT IS OUTSIDE MY COMPREHENSION HOW
ANYONE CAN TAKE SUCH A POSITION. 

"I HAVE HEARD IT ARGUED THAT IT IS A TERRIBLE THING TO MAKE LABOR
UNIONS RESPONSIBLE FOR CARRYING OUT THEIR CONTRACTS, BUT I HAVE A
QUOTATION HERE, IF I CAN FIND IT, FROM MR. JUSTICE BRANDEIS, WHO WAS
THE GREATEST FRIEND OF LABOR IN THE FEDERAL JUDICIAL FIELD.  HE SAID
THE GREATEST THING LABOR COULD DO WOULD BE TO RECOGNIZE ITS
RESPONSIBILITY.  THIS IS A QUOTATION FROM AN ADDRESS DELIVERED BY HIM
BEFORE THE ECONOMIC CLUB OF BOSTON ON DECEMBER 4, 1902:    "THE UNIONS
SHOULD TAKE THE POSITION SQUARELY THAT THEY ARE AMENABLE TO LAW,
PREPARED TO TAKE THE CONSEQUENCES IF THEY TRANSGRESS, AND THUS SHOW
THAT THEY ARE IN FULL SYMPATHY WITH THE SPIRIT OF OUR PEOPLE, WHOSE
POLITICAL SYSTEM RESTS UPON THE PROPOSITION THAT THIS IS A GOVERNMENT
OF LAW, AND NOT OF MEN. 

"I CANNOT SEE HOW ANYONE CAN TAKE ISSUE WITH SO CLEAR-CUT A STATEMENT
AS THAT, OR CAN TAKE ISSUE WITH THE PROVISIONS OF TITLE III, WHICH
SIMPLY CARRY OUT THE IDEA, BY PROVIDING THAT WHICHEVER SIDE IS GUILTY
OF VIOLATING A CONTRACT SOLEMNLY ENTERED INTO SHALL BE RESPONSIBLE FOR
DAMAGES RESULTING FROM SUCH VIOLATION. 

     *         *         *         *         * 

"ALL THAT HAS BEEN DONE IN TITLE III OF THE PENDING BILL IS TO STATE,
IN TERMS, THE VERY PRINCIPLE THAT MR. BRANDEIS LAYS DOWN AS A PRECEPT
TO BE FOLLOWED BY UNIONS WHO DESIRE TO BE RESPECTED IN THE COMMUNITY." 
(ID., AT 4281-4282.) 

D. SENATOR O'DANIEL: 

"I BELIEVE THAT LABOR UNIONS SHOULD BE MADE RESPONSIBLE UNDER THE
LAWS WITH WHICH OTHER CITIZENS MUST COMPLY.  I DO NOT THINK ANYONE IS
JUSTIFIED IN GIVING LABOR UNIONS LEGAL IMMUNITY WHEN THEY PRACTICE
COERCION, OR WHEN THEY SEEK TO EXERCISE THE SECONDARY BOYCOTT, OR WHEN
THEY ENGAGE IN VIOLENCE, OR WHEN THEY SEEK TO EVADE THEIR
RESPONSIBILITY FOR DAMAGES WITH WHICH THEY MAY RIGHTLY BE CHARGED. 
THERE IS NO REASON ON EARTH WHY WE SHOULD ALLOW LABOR UNIONS SPECIAL
EXEMPTION FROM LAWS WITH WHICH ALL OTHER CITIZENS MUST COMPLY."  (ID.,
AT 4758.) 

E. SENATOR MURRAY READ, WORD FOR WORD WITH MINOR EXCEPTIONS, THE
MATERIAL CONTAINED IN THE SENATE MINORITY REPORT, QUOTED ABOVE (II.
B.3.B.), WHICH STRESSED THE FACT THAT FEDERAL COURTS WOULD BE REQUIRED
TO LOOK TO STATE LAW, AND THAT A SERIOUS CONSTITUTIONAL PROBLEM WOULD
BE INVOLVED.  (ID., AT 4033.)  AT A LATER POINT, IN CONNECTION WITH A
SUBSTITUTE BILL PROPOSED BY THE MINORITY, HE SAID:

"WE OF THE MINORITY DO NOT SEE THE WISDOM OF PERMITTING SUITS IN THE
FEDERAL COURTS CONCERNING THE VIOLATION OF COLLECTIVE-BARGAINING
AGREEMENTS REGARDLESS OF THE AMOUNT INVOLVED OR OF THE CONSTITUTIONAL
REQUIREMENT OF DIVERSITY OF CITIZENSHIP.  IT IS CLEAR THAT THE FEDERAL
COURTS ARE ALREADY OPEN TO THESE SUITS WHERE THE PRESENT FEDERAL
REQUIREMENTS ARE MET, AND WE OBJECT TO BURDENING THEM WITH A HOST OF
PETTY LITIGATION NOT HERETOFORE COUNTENANCED IN ANY WAY.  THE STATE
COURTS ARE ADEQUATE FOR THE PURPOSES OF THESE PETTY SUITS.  WE HAVE
NONETHELESS FOUND THAT THERE IS A PRESENT INABILITY OF FEDERAL COURTS
TO PERMIT UNION ASSETS TO BE REACHED EASILY IN THE FEW STATES WHERE THE
APPLICATION OF STATE PROCEDURAL LAWS PREVENT SUITS AGAINST
UNINCORPORATED ASSOCIATIONS.  FOR THIS REASON SECTION 601 WOULD GRANT
JURISDICTION IN OTHERWISE JUSTICIABLE CONTRACT ACTIONS WHERE SUIT IS
BROUGHT BY OR AGAINST A UNION IN ITS COMMON NAME."  (ID., AT 4906.) 

F. SENATOR THOMAS: 

"OR CONSIDER THE PROVISIONS WHICH OPEN THE FEDERAL COURTS TO DAMAGE
SUITS FOR BREACH OF COLLECTIVE BARGAINING AGREEMENTS.  NOT CONTENT WITH
THE UNFAIR LABOR PRACTICE PROVISIONS RELATIVE TO BREACHES OF COLLECTIVE
BARGAINING AGREEMENTS, THE AUTHORS OF S. 1126 NOW PROPOSE TO GIVE THE
GOVERNMENT TWO BITES AT THE CHERRY.  IT MUST BE REMEMBERED THAT THESE
PROVISIONS DO NOT, IN FACT, GIVE A REMEDY WHERE NONE PREVIOUSLY
EXISTED, ALTHOUGH SOME CARE HAS BEEN TAKEN TO CREATE THE IMPRESSION
THAT THEY DO.  WHAT THESE PROVISIONS REALLY DO IS TO INVITE THE FEDERAL
DISTRICT COURTS TO POLICE THE PARTIES IN THEIR ADHERENCE TO THEIR
COLLECTIVE-BARGAINING AGREEMENTS BY DISPENSING WITH THE SENSIBLE
STATUTORY REQUIREMENT OF A JURISDICTIONAL AMOUNT OF $3,000 AND THE
CONSTITUTIONAL REQUIREMENT OF DIVERSITY OF CITIZENSHIP.  I AM FIRMLY
CONVINCED THAT THIS IS A VAIN EFFORT, BECAUSE I AM SURE THAT THE SUITS
CONTEMPLATED BY THESE PROVISIONS WILL NOT BE REGARDED BY THE COURTS AS
PRESENTING ANY FEDERAL QUESTION  ...  ."  (ID., AT 4768.) 

G. SENATOR MORSE: 

"ONE PROCEDURE IS FOUND IN THE TITLE WHICH PERMITS, OF COURSE, SUITS
BY EMPLOYERS AGAINST UNIONS FOR BREACH OF CONTRACT.  THAT IS SUBJECT TO
A GREAT DEAL OF CRITICISM ON THE PART OF UNIONS.  I DO NOT THINK THE
CRITICISM IS WELL FOUNDED, BECAUSE IN MY OPINION, WHEN UNION OFFICIALS
SIGN A LABOR CONTRACT, THEIR SIGNATURE OUGHT TO BE GIVEN THE SAME
SANCTITY AND THE SAME EFFECT AS THE SIGNATURE OF AN EMPLOYER.  SO I AM
GOING ALONG WITH THE PROPOSAL FOR LEGISLATION WHICH PERMITS SUITS FOR
BREACH OF CONTRACT AGAINST UNIONS.  I THINK A CAREFUL READING BY LABOR
LEADERS OF THE PARTICULAR PROPOSAL CONTAINED IN THE BILL WILL DISPEL
THEIR MINDS OF MANY OF THE EXAGGERATED FEARS THEY SEEM TO ENTERTAIN. 
BUT, BE THAT AS IT MAY, I THINK IT IS ONLY FAIR AND PROPER THAT WHEN
UNIONS DAMAGE THE PROPERTY RIGHTS OF EMPLOYERS OR THIRD PARTIES AS THE
RESULT OF BREACHES OF CONTRACT, THEY SHOULD BE HELD RESPONSIBLE FOR THE
OBLIGATION THEY TOOK UNTO THEMSELVES WHEN THEY SIGNED THE CONTRACT." 
(ID., AT 4207.) 

H. OTHER REFERENCES TO THE SECTION ARE OF LITTLE IMPORTANCE HERE. 
(ID., AT 3838, 4030, 4148, 4209, 4358, 4986, 5007, AND 6454.) 

5.  SECTION 301 REMAINED UNCHANGED IN THE BILL AS IT PASSED THE
SENATE. 

C. CONFERENCE REPORT (H.R. REP. NO. 510, 80TH CONG., 1ST SESS.): 

1.  THE CONFERENCE'S REVISED SECTION 301 WAS THAT PRESENTLY IN
FORCE. 

2.  THE REPORT STATED:

                    "SUITS BY AND AGAINST LABOR ORGANIZATIONS 

"SECTION 302 OF THE HOUSE BILL AND SECTION 301 OF THE SENATE
AMENDMENT CONTAINED PROVISIONS RELATING TO SUITS BY AND AGAINST LABOR
ORGANIZATIONS IN THE COURTS OF THE UNITED STATES.  THE CONFERENCE
AGREEMENT FOLLOWS IN GENERAL THE PROVISIONS OF THE HOUSE BILL WITH
CHANGES THEREIN HEREAFTER NOTED. 

"SECTION 302(A) OF THE HOUSE BILL PROVIDED THAT ANY ACTION FOR OR
PROCEEDING INVOLVING A VIOLATION OF A CONTRACT BETWEEN AN EMPLOYER AND
A LABOR ORGANIZATION MIGHT BE BROUGHT BY EITHER PARTY IN ANY DISTRICT
COURT OF THE UNITED STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT
REGARD TO THE AMOUNT IN CONTROVERSY, IF SUCH CONTRACT AFFECTED
COMMERCE, OR THE COURT OTHERWISE HAD JURISDICTION.  UNDER THE SENATE
AMENDMENT THE JURISDICTIONAL TEST WAS WHETHER THE EMPLOYER WAS IN AN
INDUSTRY AFFECTING COMMERCE OR WHETHER THE LABOR ORGANIZATION
REPRESENTED EMPLOYEES IN SUCH AN INDUSTRY.  THIS TEST CONTAINED IN THE
SENATE AMENDMENT IS ALSO CONTAINED IN THE CONFERENCE AGREEMENT, RATHER
THAN THE TEST IN THE HOUSE BILL WHICH REQUIRED THAT THE 'CONTRACT
AFFECT COMMERCE.' 

"SECTION 302(B) OF THE HOUSE BILL PROVIDED THAT ANY LABOR
ORGANIZATION WHOSE ACTIVITIES AFFECTED COMMERCE SHOULD BE BOUND BY THE
ACTS OF ITS AGENTS AND MIGHT SUE OR BE SUED AS AN ENTITY IN THE COURTS
OF THE UNITED STATES.  ANY MONEY JUDGMENT IN SUCH A SUIT WAS TO BE
ENFORCEABLE ONLY AGAINST THE ORGANIZATION AN AN ENTITY AND AGAINST ITS
ASSETS AND NOT AGAINST ANY INDIVIDUAL MEMBER OR HIS ASSETS.  THE
CONFERENCE AGREEMENT FOLLOWS THESE PROVISIONS OF THE HOUSE BILL EXCEPT
THAT THIS SUBSECTION IS MADE APPLICABLE TO LABOR ORGANIZATIONS WHICH
REPRESENT EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE AND TO EMPLOYERS
WHOSE ACTIVITIES AFFECT COMMERCE, AS LATER DEFINED.  IT IS FURTHER
PROVIDED THAT BOTH THE EMPLOYER AND THE LABOR ORGANIZATION ARE TO BE
BOUND BY THE ACTS OF THEIR AGENTS.  THIS SUBSECTION AND THE SUCCEEDING
SUBSECTIONS OF SECTION 301 OF THE CONFERENCE AGREEMENT (AS WAS THE CASE
IN THE HOUSE BILL AND ALSO IN THE SENATE AMENDMENT) ARE GENERAL IN
THEIR APPLICATION, AS DISTINGUISHED FROM SUBSECTION (A)."  (PP. 65
66.) 

D. DEBATE ON THE CONFERENCE REPORT: 

1.  HOUSE: 

A. REPRESENTATIVE CASE: 

"THE TAFT-HARTLEY BILL INCORPORATES SOME OTHER PROVISIONS WHICH WERE
IN THE CASE BILL OF LAST YEAR AND WHICH ARE PRETTY MUCH ACCEPTED AS
PROPER SUBJECTS OF LEGISLATION. 

"FOR INSTANCE, THE BILL ESTABLISHES SUABILITY FOR AND BY LABOR
ORGANIZATIONS AS ENTITIES.  THE BILL LAST YEAR DID THAT.  THE OBJECTION
TO SUITS AGAINST LABOR ORGANIZATIONS HAS STEMMED FROM A PROPER
RESENTMENT AGAINST THE TRAVESTY THAT TOOK PLACE IN THE OLD DANBURY
HATTERS CASE WHERE INDIVIDUAL MEMBERS OF A UNION WERE HARRIED AND THEIR
PROPERTY ATTACHED TO SATISFY A JUDGMENT FOR ACTION TAKEN BY OFFICERS
WHOM THEY DID NOT CONTROL.  IT WAS AS BAD AS SUCH ACTION WOULD BE
AGAINST MINORITY AND INDIVIDUAL STOCKHOLDERS OF A CORPORATION FOR ACTS
THEY COULD NOT CONTROL.  BOTH IN THE BILL LAST YEAR, AND IN THIS TAFT
HARTLEY BILL, THE LANGUAGE WHILE MAKING LABOR ORGANIZATIONS RESPONSIBLE
UNDER THEIR CONTRACTS AND FOR THE ACTS OF THEIR AGENTS, LIMITS
JUDGMENTS TO THE ASSETS OF THE ORGANIZATION ITSELF."  (93 CONG.  REC.
6283.) 

2.  SENATE:  NONE. 

E. VETO MESSAGE (H.R. DOC. NO. 334, 80TH CONG., 1ST SESS.): 

"IT WOULD DISCOURAGE THE GROWING WILLINGNESS OF UNIONS TO INCLUDE 'NO
STRIKE' PROVISIONS IN BARGAINING AGREEMENTS, SINCE ANY LABOR
ORGANIZATION SIGNING SUCH AN AGREEMENT WOULD EXPOSE ITSELF TO SUIT FOR
CONTRACT VIOLATION IF ANY OF ITS MEMBERS ENGAGED IN AN UNAUTHORIZED
'WILDCAT' STRIKE."  (P. 3.) 

"THE BILL WOULD INVITE UNIONS TO SUE EMPLOYERS IN THE COURTS
REGARDING THE THOUSANDS OF MINOR GRIEVANCES WHICH ARISE EVERY DAY OVER
THE INTERPRETATION OF BARGAINING AGREEMENTS ...  ."  (P. 4.)  "AT THE
SAME TIME IT WOULD EXPOSE UNIONS TO SUITS FOR ACTS OF VIOLENCE, WILDCAT
STRIKES AND OTHER ACTIONS, NONE OF WHICH WERE AUTHORIZED OR RATIFIED BY
THEM  ...  ."  (P. 5.) 

F. SUBSEQUENT DEBATE: 

1.  HOUSE: 

A. REPRESENTATIVE ROBSION: 

"FOR A NUMBER OF YEARS HIGH, RESPONSIBLE LABOR LEADERS HAVE STATED
OVER AND OVER THAT THEY BELIEVE IN THE OBSERVANCE OF CONTRACTS BY BOTH
PARTIES.  ONE OF THE PURPOSES OF ORGANIZING AND COLLECTIVE BARGAINING
IS TO MAKE A CONTRACT BY MANAGEMENT AND THE WORKERS.  THIS BILL
PROVIDES THAT MANAGEMENT AND LABOR EACH SHALL FAIRLY AND HONESTLY LIVE
UP TO THE TERMS OF THEIR CONTRACT AND IF EITHER PARTY BREAKS THE
CONTRACT AND THE OTHER SUFFERS LOSS OR DAMAGE THEREBY, THE PARTY WHO IS
AT FAULT MUST RESPOND IN FAIR AND JUST DAMAGES.  IF THE PARTIES DO NOT
INTEND TO LIVE UP TO THEIR CONTRACT, WHY SHOULD THEY TAKE THE TIME,
TROUBLE, AND INCUR EXPENSE OF MAKING A CONTRACT?  ...  " (93 CONG. REC.
7491.) 

2.  SENATE: 

A. SENATOR TAFT: 

"THIS IS A PERFECTLY REASONABLE BILL IN EVERY RESPECT.  IF WE ARE TO
HAVE FREE COLLECTIVE BARGAINING IT MUST BE BETWEEN TWO RESPONSIBLE
PARTIES.  SOME OF THE PROVISIONS OF THIS BILL DEAL WITH THE QUESTION OF
MAKING THE UNIONS RESPONSIBLE.  THERE IS NO REASON IN THE WORLD WHY A
UNION SHOULD NOT HAVE THE SAME RESPONSIBILITY THAT A CORPORATION HAS
WHICH IS ENGAGED IN BUSINESS.  SO WE HAVE PROVIDED THAT A UNION MAY BE
SUED AS IF IT WERE A CORPORATION  ...  ."  (ID., AT 7537.) 
..END :













GENERAL ELECTRIC CO. V. LOCAL 205, UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA (U.E.) 353 U.S. 547 


NO. 276.  ARGUED MARCH 26, 1957 - DECIDED JUNE 3, 1957 - 233 F.2D 85,
AFFIRMED. 


IN A SUIT BY A UNION UNDER SEC. 301(A) OF THE LABOR MANAGEMENT
RELATIONS ACT OF 1947, A FEDERAL DISTRICT COURT HAS AUTHORITY TO COMPEL
COMPLIANCE BY AN EMPLOYER WITH AN AGREEMENT TO ARBITRATE DISPUTES
ARISING UNDER A COLLECTIVE BARGAINING AGREEMENT WITH THE UNION. 
TEXTILE WORKERS V. LINCOLN MILLS, ANTE, P. 448.  PP. 547-548. 

GENERAL ELECTRIC CO. V. LOCAL 205, UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA (U.E.). 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 211, TEXTILE WORKERS UNION OF AMERICA
V. LINCOLN MILLS OF ALABAMA, ANTE, P. 448.  RESPONDENT-UNION AND
PETITIONER-EMPLOYEE ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT
GOVERNING THE HOURS OF WORK, RATES OF PAY, AND WORKING CONDITIONS IN A
MASSACHUSETTS PLANT OWNED BY PETITIONER.  THE AGREEMENT PROVIDED A
PROCEDURE FOR THE SETTLEMENT OF EMPLOYEE GRIEVANCES, A PROCEDURE HAVING
FOUR STEPS.  IT ALSO PROVIDED THAT, WHEN THE FOUR STEPS HAD BEEN
EXHAUSTED, EITHER PARTY COULD, WITH EXCEPTIONS NOT MATERIAL HERE,
SUBMIT THE GRIEVANCE TO ARBITRATION. 

THE RESPONDENT FILED WRITTEN GRIEVANCES, ONE ASKING HIGHER PAY FOR AN
EMPLOYEE AND ANOTHER COMPLAINING THAT AN EMPLOYEE HAD BEEN WRONGFULLY
DISCHARGED.  BOTH COMPLAINTS WERE CARRIED THROUGH THE FOUR STEPS.  THE
UNION, BEING DISSATISFIED, ASKED FOR ARBITRATION.  THE EMPLOYER
REFUSED.  THE UNION BROUGHT SUIT IN THE DISTRICT COURT TO COMPEL
ARBITRATION OF THE GRIEVANCE DISPUTES.  THE DISTRICT COURT DISMISSED
THE BILL, BEING OF THE VIEW THAT THE RELIEF SOUGHT WAS BARRED BY THE
NORRIS-LAGUARDIA ACT.  129 F. SUPP. 665.  THE COURT OF APPEALS
REVERSED, 233 F.2D 85.  IT FIRST HELD THAT THE NORRIS-LAGUARDIA ACT DID
NOT BAR ENFORCEMENT OF THE ARBITRATION AGREEMENT.  IT THEN HELD THAT
WHILE SEC. 301(A) OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947 GAVE
THE DISTRICT COURT JURISDICTION OF THE CAUSE, IT SUPPLIED NO BODY OF
SUBSTANTIVE LAW TO ENFORCE AN ARBITRATION AGREEMENT GOVERNING
GRIEVANCES.  BUT IF FOUND SUCH A BASIS IN THE UNITED STATES ARBITRATION
ACT, WHICH IT HELD APPLICABLE TO THESE COLLECTIVE BARGAINING
AGREEMENTS.  IT ACCORDINGLY REVERSED THE DISTRICT COURT JUDGMENT AND
REMANDED THE CAUSE TO THAT COURT FOR FURTHER PROCEEDINGS. 

WE AFFIRM THAT JUDGMENT AND REMAND THE CAUSE TO THE DISTRICT COURT. 
WE FOLLOW IN PART A DIFFERENT PATH THAN THE COURT OF APPEALS, THOUGH WE
REACH THE SAME RESULT.  AS INDICATED IN OUR OPINION IN NO. 211, TEXTILE
WORKERS UNION OF AMERICA V. LINCOLN MILLS OF ALABAMA, SUPRA, WE THINK
THAT SEC. 301(A) FURNISHES A BODY OF FEDERAL SUBSTANTIVE LAW FOR THE
ENFORCEMENT OF COLLECTIVE BARGAINING AGREEMENTS IN INDUSTRIES IN
COMMERCE OR AFFECTING COMMERCE AND THAT THE NORRIS-LAGUARDIA ACT DOES
NOT BAR THE ISSUANCE OF AN INJUNCTION TO ENFORCE THE OBLIGATION TO
ARBITRATE GRIEVANCE DISPUTES.  AFFIRMED. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE HARLAN JOINS, CONCURS IN THE
RESULT IN THIS CASE FOR THE REASONS SET FORTH IN HIS CONCURRENCE IN NO.
211, TEXTILE WORKERS UNION OF AMERICA V. LINCOLN MILLS OF ALABAMA,
ANTE, P. 459. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, SEE ANTE, P. 460. 

..END :





GOODALL-SANFORD, INC., V. UNITED TEXTILE WORKERS OF AMERICA, A.F.L.
LOCAL 1802 353 U.S. 550 


NO. 262.  ARGUED MARCH 25-26, 1957 - DECIDED JUNE 3, 1957 - 233 F.2D
104, AFFIRMED. 


1.  IN A SUIT BY A UNION UNDER SEC. 301(A) OF THE LABOR MANAGEMENT
RELATIONS ACT OF 1947, A FEDERAL DISTRICT COURT HAS AUTHORITY TO COMPEL
COMPLIANCE BY AN EMPLOYER WITH AN AGREEMENT TO ARBITRATE DISPUTES
ARISING UNDER A COLLECTIVE BARGAINING AGREEMENT WITH THE UNION. 
TEXTILE WORKERS V. LINCOLN MILLS, ANTE, P. 448.  PP. 550-552. 

2.  A DECREE UNDER SEC. 301(A) ORDERING ENFORCEMENT OF AN ARBITRATION
PROVISION IN A COLLECTIVE BARGAINING AGREEMENT IS A "FINAL DECISION"
WITHIN THE MEANING OF 28 U.S.C. SEC.  1291 AND IS APPEALABLE.  PP. 551
552. 

GOODALL-SANFORD, INC., V. UNITED TEXTILE WORKERS OF AMERICA, A.F.L.
LOCAL 1802, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, A COMPANION CASE TO NO. 211, TEXTILE WORKERS UNION OF
AMERICA V. LINCOLN MILLS OF ALABAMA, ANTE, P. 448, WAS BROUGHT BY
RESPONDENT-UNION IN THE DISTRICT COURT TO COMPEL SPECIFIC PERFORMANCE
OF A GRIEVANCE ARBITRATION PROVISION OF A COLLECTIVE BARGAINING
AGREEMENT BETWEEN IT AND PETITIONER.  THE CONTROVERSY AROSE OVER THE
LAYOFF OF EMPLOYEES INCIDENT TO A CURTAILMENT OF PRODUCTION AND A
LIQUIDATION OF THE PLANTS IN QUESTION.  PETITIONER TERMINATED THE
EMPLOYMENT OF THE MEN WHO WERE LAID OFF.  THE RESPONDENT PROTESTED THE
TERMINATION OF EMPLOYMENT, CLAIMING THAT THE MEN SHOULD NOT HAVE BEEN
DISCHARGED, THUS PRESERVING CERTAIN ACCRUED RIGHTS TO FRINGE BENEFITS
(SUCH AS INSURANCE, PENSIONS, AND VACATIONS) PAYABLE TO LAID-OFF
EMPLOYEES. 

THE DISTRICT COURT GRANTED SPECIFIC PERFORMANCE.  131 F. SUPP. 767. 
THE COURT OF APPEALS AFFIRMED, 233 F.2D 104, RELYING ON ITS PRIOR
DECISION IN GENERAL ELECTRIC CO. V. UNITED ELECTRICAL WORKERS, ANTE, P.
547.  FOR THE REASONS GIVEN IN NO. 211, TEXTILE WORKERS UNION OF
AMERICA V. LINCOLN MILLS OF ALABAMA, ANTE, P. 448, WE THINK THE COURT
OF APPEALS WAS CORRECT IN AFFIRMING THE DISTRICT COURT'S JUDGMENT
ORDERING ENFORCEMENT OF THE AGREEMENT TO ARBITRATE. 

THERE REMAINS THE QUESTION WHETHER AN ORDER DIRECTING ARBITRATION IS
APPEALABLE.  THIS CASE IS NOT COMPARABLE TO BALTIMORE CONTRACTORS V.
BODINGER, 348 U.S. 176, WHICH HELD THAT A STAY PENDING ARBITRATION WAS
NOT A "FINAL DECISION" WITHIN THE MEANING OF 28 U.S.C.  SEC. 1291.  NOR
NEED WE CONSIDER CASES LIKE IN RE PAHLBERG, 131 F.2D 968, AND
SCHOENAMSGRUBER V. HAMBURG LINE, 294 U.S. 454, HOLDING THAT AN ORDER
DIRECTING ARBITRATION UNDER THE UNITED STATES ARBITRATION ACT IS NOT
APPEALABLE.  THE RIGHT ENFORCED HERE IS ONE ARISING UNDER SEC. 301(A)
OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947.  ARBITRATION IS NOT
MERELY A STEP IN JUDICIAL ENFORCEMENT OF A CLAIM NOR AUXILIARY TO A
MAIN PROCEEDING, BUT THE FULL RELIEF SOUGHT.  A DECREE UNDER SEC.
301(A) ORDERING ENFORCEMENT OF AN ARBITRATION PROVISION IN A COLLECTIVE
BARGAINING AGREEMENT IS, THEREFORE, A "FINAL DECISION" WITHIN THE
MEANING OF 28 U.S.C. SEC. 1291.  AFFIRMED. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE HARLAN JOINS, CONCURS IN THE
RESULT IN THIS CASE FOR THE REASONS SET FORTH IN HIS CONCURRENCE IN NO.
211, TEXTILE WORKERS UNION OF AMERICA V. LINCOLN MILLS OF ALABAMA,
ANTE, P. 459. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, SEE ANTE, P. 460. 

..END :
























CALIFORNIA V. TAYLOR 353 U.S. 553 


NO. 385.  ARGUED APRIL 2, 1957 - DECIDED JUNE 3, 1957 - 233 F.2D 251,
AFFIRMED. 


THE RAILWAY LABOR ACT APPLIES TO THE STATE BELT RAILROAD, A COMMON
CARRIER OWNED AND OPERATED BY THE STATE OF CALIFORNIA AND ENGAGED IN
INTERSTATE COMMERCE; AND, NOTWITHSTANDING THE FACT THAT THE RAILROAD'S
EMPLOYEES ARE STATE EMPLOYEES APPOINTED UNDER THE STATE CIVIL SERVICE
LAWS, THE NATIONAL RAILROAD ADJUSTMENT BOARD HAS JURISDICTION OVER
CLAIMS BASED ON A COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE RAILROAD
AND ITS EMPLOYEES WHICH CONFLICTS WITH THE STATE CIVIL SERVICE LAWS, AS
DOES THE RAILWAY LABOR ACT ITSELF.  PP. 554-568. 

(A)  FEDERAL STATUTES REGULATING INTERSTATE RAILROADS, OR THEIR
EMPLOYEES, HAVE CONSISTENTLY BEEN HELD APPLICABLE TO PUBLICLY OWNED OR
OPERATED RAILROADS, THOUGH THEY DO NOT REFER SPECIFICALLY TO PUBLIC
RAILROADS AS BEING WITHIN THEIR COVERAGE.  PP. 561-563. 

(B)  NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT INDICATES THAT IT
SHOULD BE TREATED DIFFERENTLY FROM SUCH OTHER FEDERAL RAILWAY STATUTES,
INSOFAR AS ITS APPLICABILITY TO A STATE-OWNED RAILROAD IS CONCERNED. 
PP. 563-564. 

(C)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT, IN CERTAIN
OTHER FEDERAL STATUTES GOVERNING EMPLOYER-EMPLOYEE RELATIONSHIPS,
CONGRESS HAS EXPRESSLY EXEMPTED EMPLOYEES OF THE UNITED STATES OR A
STATE.  PP. 564-566. 

(D)  THE FACT THAT THE ACT'S APPLICATION WILL SUPERSEDE STATE CIVIL
SERVICE LAWS WHICH CONFLICT WITH ITS POLICY OF PROMOTING COLLECTIVE
BARGAINING DOES NOT DETRACT FROM THE CONCLUSION THAT CONGRESS INTENDED
IT TO APPLY TO ANY COMMON CARRIER BY RAILROAD ENGAGED IN INTERSTATE
COMMERCE, WHETHER OR NOT OWNED OR OPERATED BY A STATE.  PP. 566-567. 

(E)  BY ENGAGING IN INTERSTATE COMMERCE BY RAIL, CALIFORNIA HAS
SUBJECTED ITSELF TO THE COMMERCE POWER OF CONGRESS, AND CONGRESS CAN
REGULATE ITS RELATIONSHIPS WITH THE EMPLOYEES OF ITS INTERSTATE
RAILROAD.  P. 568. 

CALIFORNIA V. TAYLOR ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED HERE IS WHETHER THE RAILWAY LABOR ACT OF MAY
20, 1926, 44 STAT.  577, AS AMENDED, 45 U.S.C. SEC. 151 ET SEQ.,
APPLIES TO THE STATE BELT RAILROAD, A COMMON CARRIER OWNED AND OPERATED
BY THE STATE OF CALIFORNIA AND ENGAGED IN INTERSTATE COMMERCE.  FOR THE
REASONS HEREAFTER STATED, WE HOLD THAT IT DOES. 

THE OPERATIONS OF THE STATE BELT RAILROAD HAVE BEEN DESCRIBED BY THIS
COURT IN SHERMAN V. UNITED STATES, 282 U.S. 25; UNITED STATES V.
CALIFORNIA, 297 U.S. 175; AND CALIFORNIA V. LATIMER, 305 U.S. 255.  IT
PARALLELS THE SAN FRANCISCO WATERFRONT, SERVES WHARVES AND INDUSTRIAL
PLANTS, AND CONNECTS WITH CAR FERRIES, STEAMSHIP DOCKS AND THREE
INTERSTATE RAILROADS.  IT IS A COMMON CARRIER ENGAGED IN INTERSTATE
COMMERCE AND FILES TARIFFS WITH THE INTERSTATE COMMERCE COMMISSION. 

FOR OVER 65 YEARS, THE BELT RAILROAD HAS BEEN OWNED BY THE STATE OF
CALIFORNIA.  IT IS OPERATED BY THE BOARD OF STATE HARBOR COMMISSIONERS
FOR SAN FRANCISCO HARBOR, COMPOSED OF THREE COMMISSIONERS APPOINTED BY
THE GOVERNOR.  ITS EMPLOYEES NUMBER FROM 125 TO 255 AND ARE APPOINTED
IN ACCORDANCE WITH THE CIVIL SERVICE LAWS OF THE STATE.  THESE LAWS
PRESCRIBE PROCEDURES FOR HIRINGS, PROMOTIONS, LAYOFFS AND DISMISSALS,
AND AUTHORIZE THE STATE PERSONNEL BOARD TO FIX RATES OF PAY AND
OVERTIME.  (FN1) 

ON SEPTEMBER 1, 1942, THE BOARD OF STATE HARBOR COMMISSIONERS ENTERED
INTO A COLLECTIVE-BARGAINING AGREEMENT WITH THE BROTHERHOOD OF
LOCOMOTIVE FIREMEN AND ENGINEMEN AND THE BROTHERHOOD OF RAILROAD
TRAINMEN AS THE REPRESENTATIVES OF THE BELT RAILROAD'S OPERATING
EMPLOYEES.  THIS AGREEMENT ESTABLISHED PROCEDURES FOR PROMOTIONS,
LAYOFFS AND DISMISSALS.  IT ALSO FIXED RATES OF PAY AND OVERTIME. 
THOSE PROCEDURES AND RATES DIFFERED FROM THEIR COUNTERPARTS UNDER THE
STATE CIVIL SERVICE LAWS. 

THE COLLECTIVE-BARGAINING AGREEMENT CONFORMED TO THE RAILWAY LABOR
ACT AND WAS OBSERVED BY THE PARTIES AT LEAST UNTIL JANUARY 1948.  AT
THAT TIME, A SUCCESSOR HARBOR BOARD INSTITUTED LITIGATION IN THE STATE
COURTS OF CALIFORNIA IN WHICH IT CONTENDED THAT THE RAILWAY LABOR ACT
HAD NO APPLICATION TO THE BELT RAILROAD, AND THAT THE WAGES AND WORKING
CONDITIONS OF THE RAILROAD'S EMPLOYEES WERE GOVERNED BY THE STATE'S
CIVIL SERVICE LAWS RATHER THAN BY THE AGREEMENT.  THIS CONTENTION WAS
REJECTED BY A LOCAL TRIAL COURT AND BY THE CALIFORNIA DISTRICT COURT OF
APPEAL.  STATE V. BROTHERHOOD OF RAILROAD TRAINMEN, 222 P.2D 27.  IT
WAS, HOWEVER, ACCEPTED BY THE SUPREME COURT OF CALIFORNIA, WITH ONE
JUSTICE DISSENTING, 37 CAL. 2D 412, 422, 232 P.2D 857, 864, CERTIORARI
DENIED, 342 U.S. 876. 

SHORTLY THEREAFTER, FIVE EMPLOYEES OF THE BELT RAILROAD INSTITUTED
THE PRESENT ACTION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS AGAINST THE TEN MEMBERS OF THE NATIONAL RAILROAD
ADJUSTMENT BOARD, FIRST DIVISION, AND ITS EXECUTIVE SECRETARY.  THE
EMPLOYEES ALLEGED THAT THEY HAD FILED WITH THE FIRST DIVISION, PURSUANT
TO SEC. 3, FIRST (I), OF THE RAILWAY LABOR ACT, CLAIMS RELATING TO
THEIR CLASSIFICATIONS, EXTRA PAY AND SENIORITY RIGHTS UNDER THE
AGREEMENT.  THEY CHARGED THAT THE FIVE CARRIER MEMBERS OF THE DIVISION
HAD REFUSED TO CONSIDER THESE CLAIMS ON THE GROUND THAT THE BOARD WAS
WITHOUT JURISDICTION, BECAUSE, UNDER THE ABOVE DECISION OF THE SUPREME
COURT OF CALIFORNIA, THE BELT RAILROAD WAS NOT SUBJECT TO THE RAILWAY
LABOR ACT.  THE EMPLOYEES ALLEGED THAT THIS REFUSAL CREATED AN IMPASSE
IN THE TEN-MEMBER DIVISION AND THEY SOUGHT A COURT ORDER REQUIRING
ACTION ON THEIR CLAIMS.  THE UNITED STATES, ANSWERING ON BEHALF OF THE
FIRST DIVISION AND ITS EXECUTIVE SECRETARY, SUPPORTED THE COMPLAINT AND
PRAYER FOR RELIEF.  THE CARRIER MEMBERS, ANSWERING THROUGH THEIR OWN
ATTORNEYS, OPPOSED THE COMPLAINT, AS DID THE PRESENT PETITIONER, THE
STATE OF CALIFORNIA, WHICH INTERVENED AS A PARTY DEFENDANT. 

THE DISTRICT COURT GRANTED CALIFORNIA'S MOTION FOR SUMMARY JUDGMENT
AND DISMISSED THE COMPLAINT.  132 F. SUPP. 356.  THE COURT OF APPEALS
REVERSED.  233 F.2D 251.  IT HELD THAT THE RAILWAY LABOR ACT APPLIED TO
THE BELT RAILROAD, AND REMANDED THE CAUSE TO THE DISTRICT COURT WITH
DIRECTIONS TO ENTER A DECREE GRANTING THE RELIEF SOUGHT.  WE GRANTED
CERTIORARI TO RESOLVE THE CONFLICT BETWEEN THE UNITED STATES COURT OF
APPEALS AND THE CALIFORNIA SUPREME COURT AS TO THE APPLICABILITY OF THE
RAILWAY LABOR ACT TO A RAILROAD OWNED AND OPERATED BY A STATE.  352
U.S. 940.  (FN2)  WE INVITED THE SOLICITOR GENERAL TO FILE A BRIEF AS
AMICUS CURIAE AND, IN DOING SO, HE URGED THAT THE RAILWAY LABOR ACT WAS
APPLICABLE TO THE STATE BELT RAILROAD. 

THE RAILWAY LABOR ACT OF 1926, 44 STAT. 577, EVOLVED FROM LEGISLATIVE
EXPERIMENTATION BEGINNING IN 1888.  (FN3)  THE EVOLUTION OF THIS
RAILROAD LABOR CODE WAS MARKED BY A CONTINUING ATTEMPT TO BRING ABOUT
SELF-ADJUSTMENT OF DISPUTES BETWEEN RAIL CARRIERS AND THEIR EMPLOYEES. 
TO THIS END, SPECIALIZED MACHINERY OF MEDIATION AND ARBITRATION WAS
ESTABLISHED.  THE 1926 ACT - UNIQUE IN THAT IT HAD BEEN AGREED UPON BY
THE MAJORITY OF THE RAILROADS AND THEIR EMPLOYEES (FN4) - INCORPORATED
PRACTICALLY EVERY DEVICE PREVIOUSLY USED IN SETTLING DISPUTES BETWEEN
CARRIERS AND THEIR EMPLOYEES.  THESE INCLUDED (1) CONFERENCES BETWEEN
THE PARTIES; (2) APPEAL TO A BOARD OF ADJUSTMENT; (3) RECOURSE TO THE
PERMANENT BOARD OF MEDIATION; (4) SUBMISSION OF THE CONTROVERSY TO A
TEMPORARY BOARD OF ARBITRATION; AND (5) THE ESTABLISHMENT OF AN
EMERGENCY BOARD OF INVESTIGATION APPOINTED BY THE PRESIDENT. 

DISSATISFACTION WITH THE OPERATION OF THIS LEGISLATION LED TO ITS
1934 AMENDMENTS.  48 STAT. 1185.   (FN5)  ONE OF THE MOST SIGNIFICANT
CHANGES WAS THE CREATION OF THE NATIONAL RAILROAD ADJUSTMENT BOARD
COMPOSED OF EQUAL NUMBERS OF CARRIER REPRESENTATIVES AND
REPRESENTATIVES OF UNIONS NATIONAL IN SCOPE.  THE BOARD WAS DIVIDED
INTO FOUR DIVISIONS, EACH WITH JURISDICTION OVER PARTICULAR CRAFTS OR
CLASSES AND THEIR DISPUTES.  SEC. 3.  THIS ARRANGEMENT MADE AVAILABLE A
NATIONAL BOARD TO SETTLE DISPUTES IN CASE THE CARRIER AND ITS EMPLOYEES
COULD NOT AGREE UPON A SYSTEM, GROUP OR REGIONAL BOARD.  THE NATIONAL
BOARD WAS GIVEN JURISDICTION OVER "MINOR DISPUTES," MEANING THOSE
INVOLVING THE INTERPRETATION OF COLLECTIVE-BARGAINING AGREEMENTS IN A
PARTICULAR SET OF FACTS.  EITHER PARTY TO SUCH A DISPUTE COULD BRING
THE OTHER BEFORE THE BOARD IN WHAT WAS, IN FACT, COMPULSORY
ARBITRATION.  BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER & I.R.
CO., 353 U.S. 30.  PROVISIONS WERE MADE FOR THE ENFORCEMENT OF A BOARD
ORDER AGAINST A CARRIER IN A UNITED STATES DISTRICT COURT.  SEC. 3,
FIRST (P). 

EMPLOYEES THE RIGHT TO ORGANIZE THEIR OWN UNIONS AND THE RIGHT OF A
MAJORITY OF ANY CRAFT OR CLASS OF EMPLOYEES TO SELECT THE
REPRESENTATIVE OF THAT CRAFT OR CLASS.  SECTION 2, NINTH, AUTHORIZED
THE NEWLY CREATED NATIONAL MEDIATION BOARD TO HOLD REPRESENTATION
ELECTIONS AND TO CERTIFY THE REPRESENTATIVE WITH WHICH THE CARRIER MUST
DEAL.  SECTION 2, FOURTH, PROVIDED THAT THE EMPLOYEES SHALL HAVE THE
RIGHT TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING.  ON NUMEROUS OCCASIONS, THIS COURT HAS RECOGNIZED THAT THE
RAILWAY LABOR ACT PROTECTS AND PROMOTES COLLECTIVE BARGAINING. 
VIRGINIAN R. CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515, 548-549,
553; SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297, 300,
302; ORDER OF RAILROAD TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, INC.,
321 U.S. 342, 346-347; STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192,
202; RAILWAY EMPLOYEES' DEPT. V. HANSON, 351 U.S. 225, 233, 235. 
(FN6) 

IF THE RAILWAY LABOR ACT APPLIES TO THE BELT RAILROAD, THEN THE
CARRIER'S EMPLOYEES CAN INVOKE ITS MACHINERY ESTABLISHED FOR ADJUSTMENT
OF LABOR CONTROVERSIES, AND THE NATIONAL RAILWAY ADJUSTMENT BOARD HAS
JURISDICTION OVER RESPONDENTS' CLAIMS.  MOREOVER, THE ACT'S POLICY OF
PROTECTING COLLECTIVE BARGAINING COMES INTO CONFLICT WITH THE RULE OF
CALIFORNIA LAW THAT STATE EMPLOYEES HAVE NO RIGHT TO BARGAIN
COLLECTIVELY WITH THE STATE CONCERNING TERMS AND CONDITIONS OF
EMPLOYMENT WHICH ARE FIXED BY THE STATE'S CIVIL SERVICE LAWS.  (FN7)
THIS STATE CIVIL SERVICE RELATIONSHIP IS THE ANTITHESIS OF THAT
ESTABLISHED BY COLLECTIVELY BARGAINED CONTRACTS THROUGHOUT THE RAILROAD
INDUSTRY.   "EFFECTIVE COLLECTIVE BARGAINING HAS BEEN GENERALLY
CONCEDED TO INCLUDE THE RIGHT OF THE REPRESENTATIVES OF THE UNIT TO BE
CONSULTED AND TO BARGAIN ABOUT THE EXCEPTIONAL AS WELL AS THE ROUTINE
RATES, RULES, AND WORKING CONDITIONS."  ORDER OF RAILROAD TELEGRAPHERS
V. RAILWAY EXPRESS AGENCY, INC., SUPRA, AT 347.  IF THE FEDERAL ACT
APPLIES TO THE BELT RAILROAD, THEN THE POLICY OF THE STATE MUST GIVE
WAY.  (FN8) 

" ...  A STATE MAY NOT PROHIBIT THE EXERCISE OF RIGHTS WHICH THE
FEDERAL ACTS PROTECT.  THUS, IN HILL V. FLORIDA, 325 U.S. 538, THE
STATE ENJOINED A LABOR UNION FROM FUNCTIONING UNTIL IT HAD COMPLIED
WITH CERTAIN STATUTORY REQUIREMENTS.  THE INJUNCTION WAS INVALIDATED ON
THE GROUND THAT THE WAGNER ACT INCLUDED A 'FEDERALLY ESTABLISHED RIGHT
TO COLLECTIVE BARGAINING' WITH WHICH THE INJUNCTION CONFLICTED."  WEBER
V. ANHEUSER-BUSCH, INC., 348 U.S. 468, 474. 

UNDER THE RAILWAY LABOR ACT, NOT ONLY WOULD THE EMPLOYEES OF THE BELT
RAILROAD HAVE A FEDERALLY PROTECTED RIGHT TO BARGAIN COLLECTIVELY WITH
THEIR EMPLOYER, BUT THE TERMS OF THE COLLECTIVE-BARGAINING AGREEMENT
THAT THEY HAVE NEGOTIATED WITH THE BELT RAILROAD WOULD TAKE PRECEDENCE
OVER CONFLICTING PROVISIONS OF THE STATE CIVIL SERVICE LAWS.  (FN9)  IN
RAILWAY EMPLOYES' DEPT. V. HANSON, 351 U.S. 225, 232, INVOLVING SEC. 2,
ELEVENTH, OF THE RAILWAY LABOR ACT, WHICH PERMITS THE NEGOTIATION OF
UNION-SHOP AGREEMENTS NOTWITHSTANDING ANY LAW OF ANY STATE, WE STATED
THAT "A UNION AGREEMENT MADE PURSUANT TO THE RAILWAY LABOR ACT HAS,
THEREFORE, THE IMPRIMATUR OF THE FEDERAL LAW UPON IT AND, BY FORCE OF
THE SUPREMACY CLAUSE OF ARTICLE VI OF THE CONSTITUTION, COULD NOT BE
MADE ILLEGAL NOR VITIATED BY ANY PROVISION OF THE LAWS OF A STATE." 

WE TURN NOW TO THE APPLICABILITY OF THE RAILWAY LABOR ACT TO THE BELT
RAILROAD.  SECTION 1, FIRST, OF THAT ACT DEFINES GENERALLY THE CARRIERS
TO WHICH IT APPLIES AS "ANY CARRIER BY RAILROAD, SUBJECT TO THE
INTERSTATE COMMERCE ACT  ...  ."  THE INTERSTATE COMMERCE ACT, 24 STAT.
379, AS AMENDED, 49 U.S.C. SEC. 1(1), APPLIES TO ALL COMMON CARRIERS BY
RAILROAD ENGAGED IN INTERSTATE TRANSPORTATION.  THE BELT RAILROAD
CONCEDEDLY IS A COMMON CARRIER ENGAGED IN INTERSTATE TRANSPORTATION. 
IT FILES ITS TARIFFS WITH THE INTERSTATE COMMERCE COMMISSION, AND THE
COMMISSION HAS TREATED IT AND OTHER STATE-OWNED INTERSTATE RAIL
CARRIERS AS SUBJECT TO ITS JURISDICTION.  SEE CALIFORNIA CANNERIES CO.
V. SOUTHERN PACIFIC CO., 51 I.C.C. 500, 502-503; UNITED STATES V. BELT
LINE R. CO., 56 I.C.C. 121; TEXAS STATE RAILROAD, 34 I.C.C. VAL. R.
276.  FINALLY, THIS COURT HAS RECOGNIZED THAT PRACTICE.  UNITED STATES
V. CALIFORNIA, 297 U.S. 175, 186.  SEE ALSO, NEW ORLEANS V. TEXAS &
P.R. CO., 195 F.2D 887, 889. 

WITH THE EXCEPTION OF THE SUPREME COURT OF CALIFORNIA'S HOLDING IN
STATE V. BROTHERHOOD OF RAILROAD TRAINMEN, 37 CAL. 2D 412, 232 P.2D
857, FEDERAL STATUTES REGULATING INTERSTATE RAILROADS, OR THEIR
EMPLOYEES, HAVE CONSISTENTLY BEEN HELD TO APPLY TO PUBLICLY OWNED OR
OPERATED RAILROADS.  YET NONE OF THESE STATUTES REFERRED SPECIFICALLY
TO PUBLIC RAILROADS AS BEING WITHIN THEIR COVERAGE.   IN UNITED STATES
V. CALIFORNIA, SUPRA, THE UNITED STATES SOUGHT TO RECOVER A STATUTORY
PENALTY FOR THE STATE'S OPERATION OF THIS BELT RAILROAD IN VIOLATION OF
THE SAFETY APPLIANCE ACT, 27 STAT. 531-532, AS AMENDED, 45 U.S.C. SECS.
2, 6.  THAT ACT APPLIED TO "ANY COMMON CARRIER ENGAGED IN INTERSTATE
COMMERCE BY RAILROAD  ...  ."  THE STATE CONTENDED THERE, AS IT DOES
HERE, THAT THE ACT WAS INAPPLICABLE TO THE BELT RAILROAD BECAUSE A
FEDERAL STATUTE IS PRESUMED NOT TO RESTRICT A CONSTITUENT SOVEREIGN
STATE UNLESS IT EXPRESSLY SO PROVIDES.  THIS COURT SAID THAT THIS
PRESUMPTION "IS AN AID TO CONSISTENT CONSTRUCTION OF STATUTES OF THE
ENACTING SOVEREIGN WHEN THEIR PURPOSE IS IN DOUBT, BUT IT DOES NOT
REQUIRE THAT THE AIM OF A STATUTE FAIRLY TO BE INFERRED BE DISREGARDED
BECAUSE NOT EXPLICITLY STATED."  297 U.S., AT 186.  SEE ALSO,
CALIFORNIA V. UNITED STATES, 320 U.S. 577, 585-586; CASE V. BOWLES, 327
U.S. 92, 98-100.  THE COURT THEN HELD UNEQUIVOCALLY THAT THE SAFETY
APPLIANCE ACT WAS APPLICABLE TO THE BELT RAILROAD.  "WE CAN PERCEIVE NO
REASON FOR EXTENDING IT (THE PRESUMPTION) SO AS TO EXEMPT A BUSINESS
CARRIED ON BY A STATE FROM THE OTHERWISE APPLICABLE PROVISIONS OF AN
ACT OF CONGRESS, ALL-EMBRACING IN SCOPE AND NATIONAL IN ITS PURPOSE,
WHICH IS AS CAPABLE OF BEING OBSTRUCTED BY STATE AS BY INDIVIDUAL
ACTION."  297 U.S., AT 186. 

LIKEWISE, THREE COURTS HAVE RULED THAT THE FEDERAL EMPLOYERS'
LIABILITY ACT, 35 STAT.  65, AS AMENDED, 45 U.S.C. SEC. 51, THE
COVERAGE OF WHICH CORRESPONDED TO THAT OF THE SAFETY APPLIANCE ACT, WAS
APPLICABLE TO PUBLIC RAILROADS. MATHEWES V. PORT UTILITIES COMMISSION,
32 F.2D 913 (D.C.E.D.S.C.); HIGGINBOTHAM V. PUBLIC BELT RAILROAD
COMMISSION, 192 LA. 525, 188 SO. 395 (SUP. CT. LA.); MAURICE V. STATE,
43 CAL. APP. 2D 270, 110 P.2D 706 (CAL. DIST. CT. OF APP.)(INVOLVING
THE BELT RAILROAD NOW BEFORE US).  SIMILARLY, A FEDERAL COURT OF
APPEALS HAS HELD THAT THE CARRIERS TAXING ACT OF 1937, 50 STAT. 435, AS
AMENDED, 45 U.S.C. (1946 ED.)  SEC.  261 (A COMPANION MEASURE OF THE
RAILROAD RETIREMENT ACT OF 1937, 50 STAT. 307, AS AMENDED, 45 U.S.C.
SEC. 228A), THE COVERAGE OF WHICH WAS IDENTICAL WITH THAT OF THE
RAILWAY LABOR ACT, WAS APPLICABLE TO THIS BELT RAILROAD.  CALIFORNIA V.
ANGLIM, 129 F.2D 455.  AT LEAST TWO FEDERAL COURTS HAVE TAKEN THE
POSITION THAT THE RAILWAY LABOR ACT IS APPLICABLE TO RAILROADS OWNED OR
OPERATED BY THE PUBLIC.  NATIONAL COUNCIL V. SEALY, 56 F. SUPP. 720,
722-723, AFF'D, 152 F.2D 500, 502; NEW ORLEANS PUBLIC BELT R.
COMMISSION V. WARD, 195 F.2D 829; AND SEE THE OPINION OF THE ATTORNEY
GENERAL OF CALIFORNIA, N. 9, SUPRA. 

NOTHING IN THE LEGISLATIVE HISTORY OF THE RAILWAY LABOR ACT INDICATES
THAT IT SHOULD BE TREATED DIFFERENTLY FROM THE ABOVE-MENTIONED RAILWAY
STATUTES, INSOFAR AS ITS APPLICABILITY TO A STATE-OWNED RAILROAD IS
CONCERNED.  CONGRESS APPARENTLY DID NOT DISCUSS THE APPLICABILITY OF
THE RAILWAY LABOR ACT TO A STATE-OWNED RAILROAD.  THIS OMISSION IS
READILY EXPLAINABLE IN VIEW OF THE LIMITED OPERATIONS OF PUBLICLY OWNED
RAILROADS.  WE ARE TOLD BY THE PARTIES THAT THERE ARE TODAY 30 PUBLICLY
OWNED RAILROADS, ALL OF WHICH ARE SWITCHING OR TERMINAL ROADS, AND ONLY
11 OF WHICH ARE OPERATED DIRECTLY BY THE PUBLIC.  THE FACT THAT
CONGRESS CHOSE TO PHRASE THE COVERAGE OF THE ACT IN ALL-EMBRACING TERMS
INDICATES THAT STATE RAILROADS WERE INCLUDED WITHIN IT.  IN FACT, THE
CONSISTENT CONGRESSIONAL PATTERN IN RAILWAY LEGISLATION WHICH PRECEDED
THE RAILWAY LABOR ACT WAS TO EMPLOY ALL-INCLUSIVE LANGUAGE OF COVERAGE
WITH NO SUGGESTION THAT STATE-OWNED RAILROADS WERE NOT INCLUDED. 
(FN10) 

THE STATE CONTENDS THAT DOUBTS ARE CREATED ABOUT CONGRESSIONAL INTENT
TO MAKE THE RAILWAY LABOR ACT APPLICABLE TO STATE-OWNED RAILROADS BY
THE FACT THAT IN CERTAIN OTHER FEDERAL STATUTES GOVERNING EMPLOYER
EMPLOYEE RELATIONSHIPS, CONGRESS HAS EXPRESSLY EXEMPTED EMPLOYEES OF
THE UNITED STATES OR OF A STATE.  (FN11)  WE BELIEVE, HOWEVER, THAT
THIS ARGUMENT CUTS THE OTHER WAY.  WHEN CONGRESS WISHED TO EXCLUDE
STATE EMPLOYEES, IT EXPRESSLY SO PROVIDED.  ITS FAILURE TO DO LIKEWISE
IN THE RAILWAY LABOR ACT INDICATES A PURPOSE NOT TO EXCLUDE STATE
EMPLOYEES.  (FN12) 

THE RAILWAY LABOR ACT IS ESSENTIALLY AN INSTRUMENT OF INDUSTRY-WIDE
GOVERNMENT.  SEE ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S. 711, 749, 751
(DISSENTING OPINION).  THE RAILROAD WORLD FOR WHICH THE ACT WAS
DESIGNED HAS BEEN DESCRIBED AS "A STATE WITHIN A STATE.  ITS POPULATION
OF SOME THREE MILLION, IF WE INCLUDE THE FAMILIES OF WORKERS, HAS ITS
OWN CUSTOMS AND ITS OWN VOCABULARY, AND LIVES ACCORDING TO RULES OF ITS
OWN MAKING  ... .  THIS STATE WITHIN A STATE HAS ENJOYED A HIGH DEGREE
OF INTERNAL PEACE FOR TWO GENERATIONS; DESPITE THE DIVERGENT INTERESTS
OF ITS COMPONENT PARTS, THE REIGN OF LAW HAS BEEN FIRMLY ESTABLISHED." 
GARRISON, THE NATIONAL RAILROAD ADJUSTMENT BOARD; A UNIQUE
ADMINISTRATIVE AGENCY, 46 YALE L.J. 567, 568-569 (1937).  CONGRESS HAS
NOT ONLY CARVED THIS SINGULAR INDUSTRY OUT OF THE LABOR MANAGEMENT
RELATIONS ACT OF 1947, 61 STAT. 156, 29 U.S.C. SEC.  182, BUT IT HAS
PROVIDED, BY THE RAILWAY LABOR ACT, TECHNIQUES PECULIAR TO THAT
INDUSTRY.  AN EXTENDED PERIOD OF CONGRESSIONAL EXPERIMENTATION IN THE
FIELD OF RAILWAY LABOR LEGISLATION RESULTED IN THE RAILWAY LABOR ACT
AND PRODUCED ITS MACHINERY FOR CONCILIATION, MEDIATION, ARBITRATION AND
ADJUSTMENTS OF DISPUTES.  A PRIMARY PURPOSE OF THIS MACHINERY OF
RAILWAY GOVERNMENT IS "TO AVOID ANY INTERRUPTION TO COMMERCE OR TO THE
OPERATION OF ANY CARRIER ENGAGED THEREIN  ...  ."  48 STAT. 1186 (SEC.
2), 45 U.S.C. SEC. 151A.  SEE SLOCUM V. DELAWARE, L.&W.R. CO., 339 U.S.
239, 242.  LIKE THE SAFETY APPLIANCE ACT, THE RAILWAY LABOR ACT IS "ALL
EMBRACING IN SCOPE AND NATIONAL IN ITS PURPOSE, WHICH IS AS CAPABLE OF
BEING OBSTRUCTED BY STATE AS BY INDIVIDUAL ACTION."  UNITED STATES V.
CALIFORNIA, 297 U.S. 175, 186.  THE FACT THAT, UNDER STATE LAW, THE
EMPLOYEES OF THE BELT RAILROAD MAY HAVE NO LEGAL RIGHT TO STRIKE (FN13)
REDUCES, BUT DOES NOT ELIMINATE, THE POSSIBILITY OF A WORK STOPPAGE. 
IT WAS TO MEET SUCH A POSSIBILITY THAT THE ACT'S "REIGN OF LAW" WAS
ESTABLISHED.  A TERMINAL RAILROAD FACILITY LIKE THE BELT RAILROAD IS A
VITAL LINK IN THE NATIONAL TRANSPORTATION SYSTEM.  ITS CONTINUOUS
OPERATION IS IMPORTANT TO THE NATIONAL FLOW OF COMMERCE. 

THE FACT THAT THE ACT'S APPLICATION WILL SUPERSEDE STATE CIVIL
SERVICE LAWS WHICH CONFLICT WITH ITS POLICY OF PROMOTING COLLECTIVE
BARGAINING DOES NOT DETRACT FROM THE CONCLUSION THAT CONGRESS INTENDED
IT TO APPLY TO ANY COMMON CARRIER BY RAILROAD ENGAGED IN INTERSTATE
TRANSPORTATION, WHETHER OR NOT OWNED OR OPERATED BY A STATE.  THE
PRINCIPAL UNIONS IN THE RAILROAD INDUSTRY ARE NATIONAL IN SCOPE, AND
THEIR OFFICIALS ARE INTIMATELY ACQUAINTED WITH THE PROBLEMS, TRADITIONS
AND CONDITIONS OF THE RAILROAD INDUSTRY.  BARGAINING COLLECTIVELY WITH
THESE OFFICIALS HAS OFTEN TAKEN ON A NATIONAL FLAVOR, (FN14) AND
AGREEMENTS ARE UNIFORMLY NEGOTIATED FOR AN ENTIRE RAILROAD SYSTEM. 
"BREAKDOWNS IN COLLECTIVE BARGAINING WILL TYPICALLY AFFECT A REGION OR
THE ENTIRE NATION."  LECHT, EXPERIENCE UNDER RAILWAY LABOR LEGISLATION
(1955), 4.  IT IS BY NO MEANS UNREASONABLE TO ASSUME THAT CONGRESS,
AWARE OF THESE CHARACTERISTICS OF LABOR RELATIONS IN THE INTERCONNECTED
SYSTEM WHICH COMPRISES OUR NATIONAL RAILROAD INDUSTRY, INTENDED THAT
COLLECTIVE BARGAINING, AS FOSTERED AND PROTECTED BY THE RAILWAY LABOR
ACT, SHOULD APPLY TO ALL RAILROADS.  CONGRESS NO DOUBT CONCLUDED THAT A
UNIFORM METHOD OF DEALING WITH THE LABOR PROBLEMS OF THE RAILROAD
INDUSTRY WOULD TEND TO ELIMINATE INEQUITIES, AND WOULD PROMOTE A
DESIRABLE MOBILITY WITHIN THE RAILROAD LABOR FORCE.  (FN15) 

FINALLY, THE STATE SUGGESTS THAT CONGRESS HAS NO CONSTITUTIONAL POWER
TO INTERFERE WITH THE "SOVEREIGN RIGHT" OF A STATE TO CONTROL ITS
EMPLOYMENT RELATIONSHIPS ON A STATE-OWNED RAILROAD ENGAGED IN
INTERSTATE COMMERCE.  IN UNITED STATES V. CALIFORNIA, SUPRA, THIS COURT
SAID THAT THE STATE, ALTHOUGH ACTING IN ITS SOVEREIGN CAPACITY IN
OPERATING THIS BELT RAILROAD, NECESSARILY SO ACTED "IN SUBORDINATION TO
THE POWER TO REGULATE INTERSTATE COMMERCE, WHICH HAS BEEN GRANTED
SPECIFICALLY TO THE NATIONAL GOVERNMENT."  297 U.S., AT 184. 
"CALIFORNIA, BY ENGAGING IN INTERSTATE COMMERCE BY RAIL, HAS SUBJECTED
ITSELF TO THE COMMERCE POWER, AND IS LIABLE FOR A VIOLATION OF THE
SAFETY APPLIANCE ACT, AS ARE OTHER CARRIERS  ...  ."  ID., AT 185. 
THAT PRINCIPLE IS NO LESS APPLICABLE HERE.  IF CALIFORNIA, BY ENGAGING
IN INTERSTATE COMMERCE BY RAIL, SUBJECTS ITSELF TO THE COMMERCE POWER
SO THAT CONGRESS CAN MAKE IT CONFORM TO FEDERAL SAFETY REQUIREMENTS, IT
ALSO HAS SUBJECTED ITSELF TO THAT POWER SO THAT CONGRESS CAN REGULATE
ITS EMPLOYMENT RELATIONSHIPS.  SEE ALSO, CALIFORNIA V. UNITED STATES,
320 U.S. 577, 586; CF. RAILWAY EMPLOYES' DEPT. V. HANSON, 351 U.S. 225,
233-238.  (FN16) 

THE JUDGMENT OF THE COURT OF APPEALS ACCORDINGLY IS AFFIRMED. 

FN1  SEE WEST'S CAL. ANN. CODES, CONSTITUTION, ART. XXIV; WEST'S CAL.
ANN. CODES, GOVERNMENT, SEC. 18000 ET SEQ.

FN2  PETITIONER EXPRESSLY EXCLUDED FROM THE QUESTIONS PRESENTED BY
ITS PETITION FOR CERTIORARI THE FOLLOWING ISSUES INVOLVED IN THE
DECISION OF THE COURT OF APPEALS:  WHETHER THE ADJUDICATION IN THE
STATE COURTS WAS RES JUDICATA IN THE FEDERAL COURTS, WHETHER THE
COLLECTIVE-BARGAINING AGREEMENT HAD BEEN APPROVED BY THE DEPARTMENT OF
FINANCE OF THE STATE AND, THEREFORE, MET THE REQUIREMENTS OF CALIFORNIA
LAW IN THAT RESPECT, AND WHETHER THE CALIFORNIA PERSONNEL BOARD, RATHER
THAN THE NATIONAL RAILROAD ADJUSTMENT BOARD, HAD JURISDICTION OVER
RESPONDENTS' CLAIMS. 

IN ITS BRIEFS BEFORE THIS COURT, CALIFORNIA SUGGESTS THAT THE
COLLECTIVE-BARGAINING AGREEMENT IS INVALID BECAUSE THE BOARD OF STATE
HARBOR COMMISSIONERS LACKED AUTHORITY TO NEGOTIATE THE CONTRACT, SOME
OF THE TERMS OF WHICH ARE IN CONFLICT WITH THE STATE CIVIL SERVICE
LAWS.  THE COURT OF APPEALS, HOWEVER, HELD THAT THIS CONTENTION HAD
BEEN WAIVED BECAUSE IT WAS NOT BRIEFED THERE BY THE STATE AND NOT
MENTIONED IN THE STATE'S ORAL ARGUMENT.  WE, ACCORDINGLY, DO NOT
RECOGNIZE THIS CONTENTION HERE.   THE SAME ARGUMENT WAS REJECTED BY THE
CALIFORNIA DISTRICT COURT OF APPEAL IN THE EARLIER STATE COURT
LITIGATION, STATE V. BROTHERHOOD OF RAILROAD TRAINMEN, 222 P.2D 27, 31
33, AND THE SUPREME COURT OF CALIFORNIA APPARENTLY DID NOT REJECT THAT
POSITION OF THE APPELLATE COURT, 37 CAL. 2D 412, 421-422, 232 P.2D 857,
863-864.  THUS, EVEN IF THE STATE'S PRESENT SUGGESTION WERE BEFORE US,
WE WOULD FEEL CONSTRAINED TO ACCEPT THE RULING OF THE DISTRICT COURT OF
APPEAL. 

FN3  ACT OF 1888, 25 STAT. 501; ERDMAN ACT OF 1898, 30 STAT. 424;
NEWLANDS ACT OF 1913, 38 STAT. 103; ADAMSON ACT OF 1916, 39 STAT. 721,
SEE WILSON V. NEW, 243 U.S. 332; GENERAL ORDER NO. 8, FEBRUARY 21,
1918, SIGNED BY W.G. MCADOO, DIRECTOR GENERAL OF RAILROADS (FORMULATING
THE FEDERAL GOVERNMENT'S LABOR POLICY AFTER IT TOOK OVER THE RAILROADS
IN DECEMBER 1917), HINES, WAR HISTORY OF AMERICAN RAILROADS (1928), 304
305, SEE ALSO, P. 155 ET SEQ.; TITLE III OF THE TRANSPORTATION ACT OF
1920, 41 STAT. 469. 

FN4  SEE S. REP. NO. 606, 69TH CONG., 1ST SESS. 2; 67 CONG. REC.
463. 

FN5  THE PURPOSES OF THE ACT WERE STATED AS FOLLOWS: 

"SEC. 2.  ...  (1) TO AVOID ANY INTERRUPTION TO COMMERCE OR TO THE
OPERATION OF ANY CARRIER ENGAGED THEREIN; (2) TO FORBID ANY LIMITATION
UPON FREEDOM OF ASSOCIATION AMONG EMPLOYEES OR ANY DENIAL, AS A
CONDITION OF EMPLOYMENT OR OTHERWISE, OF THE RIGHT OF EMPLOYEES TO JOIN
A LABOR ORGANIZATION; (3) TO PROVIDE FOR THE COMPLETE INDEPENDENCE OF
CARRIERS AND OF EMPLOYEES IN THE MATTER OF SELF-ORGANIZATION TO CARRY
OUT THE PURPOSES OF THIS ACT; (4) TO PROVIDE FOR THE PROMPT AND ORDERLY
SETTLEMENT OF ALL DISPUTES CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS; (5) TO PROVIDE FOR THE PROMPT AND ORDERLY SETTLEMENT OF ALL
DISPUTES GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS COVERING RATES OF PAY, RULES, OR WORKING
CONDITIONS."  48 STAT.  1186-1187. 

FN6  ANOTHER SIGNIFICANT AMENDMENT TO THE RAILWAY LABOR ACT CAME IN
1951 WHEN CONGRESS AUTHORIZED UNION-SHOP AGREEMENTS, NOTWITHSTANDING
ANY STATE LAW.  SEC. 2, ELEVENTH, 64 STAT. 1238.  SEE RAILWAY EMPLOYES'
DEPT. V. HANSON, 351 U.S. 225. 

FN7  NUTTER V. SANTA MONICA, 74 CAL. APP. 2D 292, 168 P.2D 741; LOS
ANGELES V. LOS ANGELES BUILDING COUNCIL, 94 CAL. APP. 2D 36, 210 P.2D
305; STATE V. BROTHERHOOD OF RAILROAD TRAINMEN, 37 CAL. 2D 412, 417
418, 232 P.2D 857, 861. 

FN8  FOR CASES UPHOLDING THE SUPREMACY OF FEDERAL STATUTES RELATING
TO RAILROADS IN INTERSTATE COMMERCE, SEE NAPIER V. ATLANTIC C.L.R. CO.,
272 U.S. 605 (BOILER INSPECTION ACT); SOUTHERN R. CO. V. RAILROAD
COMMISSION OF INDIANA, 236 U.S. 439 (SAFETY APPLIANCE ACT); ERIE R. CO.
V. NEW YORK, 233 U.S. 671 (HOURS OF SERVICE ACT); SECOND EMPLOYERS'
LIABILITY CASES, 233 U.S. 1 (EMPLOYERS' LIABILITY ACT).  CF. TERMINAL
RAILROAD ASSN. V. BROTHERHOOD OF RAILROAD TRAINMEN, 318 U.S. 1, TO THE
EFFECT THAT THE RAILWAY LABOR ACT DID NOT PRECLUDE A STATE FROM
ESTABLISHING MINIMUM HEALTH AND SAFETY REGULATIONS IN THE INTERESTS OF
RAILWAY EMPLOYEES.  THAT CASE DID NOT CONCERN A CONFLICT BETWEEN
FEDERALLY PROTECTED COLLECTIVE BARGAINING AND INCONSISTENT STATE LAWS. 

FN9  ON OCTOBER 30, 1944, THE ATTORNEY GENERAL OF CALIFORNIA RENDERED
AN OPINION IN WHICH HE CONCLUDED THAT THE STATE BELT RAILROAD WAS
SUBJECT TO THE RAILWAY LABOR ACT, THAT THE BOARD OF HARBOR
COMMISSIONERS MUST BARGAIN COLLECTIVELY WITH THE RAILROAD'S EMPLOYEES,
AND THAT THE TERMS OF THE EXISTING COLLECTIVE-BARGAINING AGREEMENT
SUPERSEDE CONFLICTING PROVISIONS OF THE STATE CIVIL SERVICE LAWS.  4
OP. ATTY. GEN. CAL. (1944) 300-306; RHYNE, LABOR UNIONS AND MUNICIPAL
EMPLOYE LAW (1946), 247-251.  SEE ALSO, LONG ISLAND R. CO. V.
DEPARTMENT OF LABOR, 256 N.Y. 498, 515-517, 177 N.E. 17, 23-24. 

FN10  ALTHOUGH THE COVERAGE OF THE ACT OF 1888, 25 STAT. 501, THE
ERDMAN ACT OF 1898, 30 STAT. 424, AND THE NEWLANDS ACT OF 1913, 38
STAT. 103, WAS NOT RELATED TO THE INTERSTATE COMMERCE ACT, THOSE ACTS
BY THEIR TERMS APPLIED TO ANY CARRIERS BY RAILROAD ENGAGED IN
INTERSTATE TRANSPORTATION.  THE CROSS-REFERENCE TO THE INTERSTATE
COMMERCE ACT, FOUND IN THE RAILWAY LABOR ACT, CAME WITH THE ADAMSON ACT
OF 1916, 39 STAT. 721, AND WAS CARRIED FORWARD TO TITLE III OF THE
TRANSPORTATION ACT OF 1920, 41 STAT. 469.  A HOUSE COMMITTEE REPORTING
ON THE BILL WHICH WAS TO BECOME TITLE III OF THE TRANSPORTATION ACT
STATED THAT "SECTION 300 DEFINES THE TERM 'CARRIER' SO THAT DISPUTES OF
THE RAILROADS AND EXPRESS AND SLEEPING-CAR COMPANIES, ENGAGED IN
INTERSTATE COMMERCE, ARE SUBJECT TO THE PROVISIONS OF THE TITLE."  H.R.
REP. NO. 456, 66TH CONG., 1ST SESS. 24. 

FN11  THE STATUTES CITED ARE THE NATIONAL LABOR RELATIONS ACT OF
1935, 49 STAT. 449, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT OF
1947, 61 STAT. 137, 29 U.S.C. SEC. 152 (2); THE WAR LABOR DISPUTES ACT
OF 1943, 57 STAT. 164, 50 U.S.C. APP. (1946 ED.)  SEC.  1502(D); THE
FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060, 29 U.S.C. SEC. 203(D),
AND THE RE-EMPLOYMENT PROVISIONS OF THE UNIVERSAL MILITARY TRAINING AND
SERVICE ACT, 62 STAT. 614-615, 50 U.S.C. APP. SEC. 459(B). 

FN12  WHEN CONGRESS DESIRED TO MAKE EXCEPTIONS TO THE BROAD COVERAGE
OF THE RAILWAY LABOR ACT, IT EXPRESSLY STATED THAT INTENT IN A PROVISO
TO THE ACT'S DEFINITION OF THE TERM "CARRIER":    "SECTION 1  ...  . 

"FIRST  ...  .  PROVIDED, HOWEVER, THAT THE TERM 'CARRIER' SHALL NOT
INCLUDE ANY STREET, INTERURBAN, OR SUBURBAN ELECTRIC RAILWAY, UNLESS
SUCH RAILWAY IS OPERATING AS A PART OF A GENERAL STEAM-RAILROAD SYSTEM
OF TRANSPORTATION, BUT SHALL NOT EXCLUDE ANY PART OF THE GENERAL STEAM
RAILROAD SYSTEM OF TRANSPORTATION NOW OR HEREAFTER OPERATED BY ANY
OTHER MOTIVE POWER.  THE INTERSTATE COMMERCE COMMISSION IS HEREBY
AUTHORIZED AND DIRECTED UPON REQUEST OF THE MEDIATION BOARD OR UPON
COMPLAINT OF ANY PARTY INTERESTED TO DETERMINE AFTER HEARING WHETHER
ANY LINE OPERATED BY ELECTRIC POWER FALLS WITHIN THE TERMS OF THIS
PROVISO.  THE TERM 'CARRIER' SHALL NOT INCLUDE ANY COMPANY BY REASON OF
ITS BEING ENGAGED IN THE MINING OF COAL, THE SUPPLYING OF COAL TO A
CARRIER WHERE DELIVERY IS NOT BEYOND THE MINE TIPPLE, AND THE OPERATION
OF EQUIPMENT OR FACILITIES THEREFOR, OR IN ANY OF SUCH ACTIVITIES."  48
STAT. 1185-1186, 54 STAT. 785-786, 45 U.S.C. SEC. 151, FIRST. 

IN UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258, THIS COURT
RULED THAT THE GENERAL TERM "EMPLOYER," AS USED IN THE RESTRICTIVE
PROVISIONS OF THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, AND SEC. 20 OF THE
CLAYTON ACT, 38 STAT. 738, DID NOT INCLUDE THE FEDERAL GOVERNMENT, AND
THAT AN INJUNCTION COULD ISSUE IN A FEDERAL COURT TO PREVENT A UNION
AND ITS OFFICERS FROM PRECIPITATING A STRIKE IN THE BITUMINOUS COAL
MINES WHICH, AT THE TIME, WERE BEING OPERATED BY THE GOVERNMENT.  THAT
CASE IS NOT A GUIDE HERE SINCE THE STATUTES THERE INVOLVED DIFFER
WIDELY IN HISTORY AND PURPOSE FROM THE RAILWAY LABOR ACT.  SEE
BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER & I.R. CO., 353 U.S.
30, 39-42. 

FN13  SEE THE LOS ANGELES BUILDING COUNCIL CASE, N. 7, SUPRA. 

FN14  LECHT, EXPERIENCE UNDER RAILWAY LABOR LEGISLATION (1955), 4, 70
71, 158, 161, 167-168, 177, 192, 209, 225, 233. 

FN15  CONGRESS CLEARLY HAD CONSIDERATIONS SUCH AS THESE IN MIND IN
1951 WHEN IT AUTHORIZED UNION-SHOP AGREEMENTS, NOTWITHSTANDING ANY
STATE LAW.  SEE N. 6, SUPRA.  THE HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE STATED THAT: 

"IT WILL BE NOTED THAT THE PROPOSED PARAGRAPH ELEVENTH WOULD
AUTHORIZE AGREEMENTS NOTWITHSTANDING THE LAWS OF ANY STATE.  FOR THE
FOLLOWING REASONS, AMONG OTHERS, IT IS THE VIEW OF THE COMMITTEE THAT
IF, AS A MATTER OF NATIONAL POLICY, SUCH AGREEMENTS ARE TO BE PERMITTED
IN THE RAILROAD AND AIRLINE INDUSTRIES IT WOULD BE WHOLLY IMPRACTICABLE
AND UNWORKABLE FOR THE VARIOUS STATES TO REGULATE SUCH AGREEMENTS. 
RAILROADS AND AIRLINES ARE DIRECT INSTRUMENTALITIES OF INTERSTATE
COMMERCE; THE RAILWAY LABOR ACT REQUIRES COLLECTIVE BARGAINING ON A
SYSTEM-WIDE BASIS; AGREEMENTS ARE UNIFORMLY NEGOTIATED FOR AN ENTIRE
RAILROAD SYSTEM AND REGULATE THE RATES OF PAY, RULES OF WORKING
CONDITIONS OF EMPLOYEES IN MANY STATES; THE DUTIES OF MANY EMPLOYEES
REQUIRE THE CONSTANT CROSSING OF STATE LINES; MANY SENIORITY DISTRICTS
UNDER LABOR AGREEMENTS, EXTEND ACROSS STATE LINES, AND IN THE EXERCISE
OF THEIR SENIORITY RIGHTS EMPLOYEES ARE FREQUENTLY REQUIRED TO MOVE
FROM ONE STATE TO ANOTHER."  H.R. REP. NO. 2811, 81ST CONG., 2D SESS.
5. 

FN16  THE CONTENTION OF THE STATE THAT THE ELEVENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES WOULD BAR AN EMPLOYEE OF THE BELT
RAILROAD FROM ENFORCING AN AWARD BY THE NATIONAL RAILROAD ADJUSTMENT
BOARD IN A SUIT AGAINST THE STATE IN A UNITED STATES DISTRICT COURT
UNDER SEC. 3, FIRST (P), OF THE ACT IS NOT BEFORE US UNDER THE FACTS OF
THIS CASE. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






JACKSON V. TAYLOR 353 U.S. 569 


NO. 619.  ARGUED APRIL 30, 1957.  - DECIDED JUNE 3, 1957.  - 234 F.2D
611, AFFIRMED. 


A GENERAL COURT-MARTIAL FOUND A SOLDIER GUILTY OF THE SEPARATE
OFFENSES OF PREMEDITATED MURDER AND ATTEMPTED RAPE AND, IN ACCORDANCE
WITH THE USUAL PRACTICE, GAVE HIM AN AGGREGATE SENTENCE OF LIFE
IMPRISONMENT FOR BOTH OFFENSES.  THE ARMY BOARD OF REVIEW SET ASIDE THE
CONVICTION ON THE MURDER CHARGE; BUT IT SUSTAINED THE CONVICTION FOR
ATTEMPTED RAPE AND REDUCED THE SENTENCE TO 20 YEARS' IMPRISONMENT,
WHICH IS THE MAXIMUM SENTENCE FOR ATTEMPTED RAPE.  IN A HABEAS CORPUS
PROCEEDING, THE SOLDIER CHALLENGED THE VALIDITY OF THE REDUCED
SENTENCE.  HELD:  THE ACTION OF THE BOARD OF REVIEW IN MODIFYING THE
SENTENCE TO 20 YEARS' IMPRISONMENT WAS AUTHORIZED BY ARTICLE 66(C) OF
THE UNIFORM CODE OF MILITARY JUSTICE, AND IT IS SUSTAINED.  PP. 570
580. 

(A)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACTS THAT THE LAW
OFFICER OF THE COURT-MARTIAL ADVISED THAT, IN VIEW OF THE FINDING ON
THE MURDER CHARGE, IT HAD ONLY TWO ALTERNATIVES, A DEATH SENTENCE OR
LIFE IMPRISONMENT, AND THAT HE MADE NO REFERENCE TO PUNISHMENT FOR
ATTEMPTED RAPE, THE MAXIMUM FOR WHICH IS 20 YEARS.  PP. 573-574. 

(B)  THE BOARD OF REVIEW HAD AUTHORITY UNDER ARTICLE 66(C) OF THE
UNIFORM CODE OF MILITARY JUSTICE TO MODIFY THE LIFE SENTENCE TO 20
YEARS AFTER THE MURDER CONVICTION WAS SET ASIDE.  PP. 574-577. 

(C)  IN VIEW OF THE GROSS-SENTENCE PRACTICE REQUIRED IN COURT-MARTIAL
PROCEEDINGS AND THE POWER VESTED BY LAW IN THE BOARD OF REVIEW TO
CORRECT SUCH A SENTENCE, THE BOARD'S ACTION CANNOT BE SET ASIDE ON THE
CONJECTURE THAT THE COURT-MARTIAL MIGHT HAVE IMPOSED LESS THAN THE
MAXIMUM SENTENCE FOR ATTEMPTED RAPE HAD IT CONSIDERED THAT OFFENSE
SEPARATELY.  PP. 577-579. 

(D)  THE CASE SHOULD NOT BE REMANDED FOR A REHEARING BEFORE THE COURT
MARTIAL ON THE QUESTION OF SENTENCE, SINCE THERE IS NO SPECIFIC
AUTHORITY FOR DOING SO UNDER THE UNIFORM CODE OF MILITARY JUSTICE, AND
CONGRESS INTENDED THAT THE BOARD OF REVIEW SHOULD EXERCISE THIS POWER. 
P. 579. 

(E)  NOR SHOULD THE CASE BE REMANDED FOR REHEARING BEFORE A NEW COURT
MARTIAL, SINCE THE FUNCTION OF REVIEWING SUCH SENTENCES IS VESTED BY
LAW IN THE BOARD OF REVIEW.  PP.  579-580. 

(F)  SINCE THE SENTENCE HERE INVOLVED WAS LAGELLY IMPOSED BY MILITARY
AUTHORITIES, ITS SEVERITY IS NOT REVIEWABLE ON HABEAS CORPUS IN THE
CIVIL COURTS.  P. 578, NOTE 10. 

JACKSON V. TAYLOR, ACTING WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A HABEAS CORPUS PROCEEDING IN WHICH PETITIONER, A SOLDIER,
ATTACKS THE VALIDITY OF A SENTENCE OF 20 YEARS HE IS NOW SERVING AS THE
RESULT OF HIS CONVICTION BY AN ARMY COURT-MARTIAL OF THE OFFENSE OF
ATTEMPTED RAPE.  WHILE SERVING IN THE UNITED STATES ARMY IN KOREA, HE
WAS FOUND GUILTY BY A GENERAL COURT-MARTIAL OF THE SEPARATE OFFENSES OF
PREMEDITATED MURDER AND ATTEMPTED RAPE OF A KOREAN WOMAN.  HE WAS GIVEN
AN AGGREGATE SENTENCE (FN1) OF LIFE IMPRISONMENT FOR BOTH OFFENSES. 
THE ARMY BOARD OF REVIEW FOUND "INCORRECT IN LAW AND FACT" THE COURT
MARTIAL FINDING OF GUILTY ON THE MURDER CHARGE, BUT IT APPROVED THE
GUILTY FINDING FOR ATTEMPTED RAPE.  AS TO THE SENTENCE, THE BOARD FOUND
"THAT ONLY SO MUCH OF THE APPROVED SENTENCE AS PROVIDES FOR
DISHONORABLE DISCHARGE, TOTAL FORFEITURES, AND CONFINEMENT AT HARD
LABOR FOR 20 YEARS IS CORRECT IN LAW AND FACT."  AS SO MODIFIED, IT
APPROVED THE SENTENCE.  UNITED STATES V. FOWLER, 2 C.M.R. 336.  THE
PETITIONER MAKES NO ATTACK ON HIS ORIGINAL CONVICTION ON THE ATTEMPTED
RAPE CHARGE AND ITS AFFIRMANCE BY THE BOARD.  BUT HE ATTACKS THE
SENTENCE OF THE BOARD ALLEGING THAT "THE ACTION OF THE REVIEW BOARD IN
RESERVING TWENTY (20) YEARS OF THE LIFE SENTENCE IMPOSED BY THE COURT
MARTIAL FOR THE CRIME OF MURDER, EVEN THOUGH IT HAD RESERVED AND SET
ASIDE THE CONVICTION, WAS NULL AND VOID."  THE DISTRICT COURT DENIED
THE WRIT AND DISCHARGED THE RULE TO SHOW CAUSE, JACKSON V. HUMPHREY,
135 F. SUPP. 776, HOLDING THAT THE BOARD OF REVIEW ON REVERSING THE
MURDER CONVICTION, PROPERLY MODIFIED THE SENTENCE AND WAS NOT REQUIRED
TO ORDER A NEW TRIAL OR TO REMAND THE CASE FOR RESENTENCING BY THE
GENERAL COURT-MARTIAL.  THE COURT OF APPEALS, IN A UNANIMOUS OPINION,
AFFIRMED.  JACKSON V. TAYLOR, 234 F.2D 611.  IT HELD THAT THE BOARD OF
REVIEW UPON AFFIRMING THE ATTEMPTED RAPE CONVICTION WAS AUTHORIZED TO
"AFFIRM  ...  SUCH PART OR AMOUNT OF THE SENTENCE, AS IT FINDS
CORRECT," CITING ARTICLE 66(C) OF THE UNIFORM CODE OF MILITARY JUSTICE,
64 STAT. 128, 50 U.S.C. SEC.  653(C).  WE BELIEVE THE SENTENCE MUST
STAND. 

PETITIONER WAS TRIED WITH TWO OTHER SOLDIERS AND EACH WAS CONVICTED
OF THE SAME OFFENSES, PREMEDITATED MURDER AND ATTEMPTED RAPE.  EACH WAS
ALSO SENTENCED TO LIFE IMPRISONMENT.  THE RECORD OF THE TRIAL WAS THEN
FORWARDED TO THE CONVENING AUTHORITY WHERE THE CONVICTIONS AND
SENTENCES WERE APPROVED.  IN ACCORDANCE WITH MILITARY PROCEDURE, THE
RECORD WAS THEN FORWARDED WITH THE CONVENING AUTHORITY'S APPROVAL TO A
BOARD OF REVIEW IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE
ARMY.  THAT BOARD, AS ALREADY STATED, FOUND THE MURDER CONVICTIONS
UNSUPPORTED BY THE RECORD AND SET THEM ASIDE, BUT SUSTAINED THE
CONVICTIONS FOR ATTEMPTED RAPE AND MODIFIED THE SENTENCES.  THE
SOLDIERS THEN SOUGHT FURTHER REVIEW BY PETITION BEFORE THE UNITED
STATES COURT OF MILITARY APPEALS.  NO QUESTION REGARDING THE AUTHORITY
OF THE REVIEW BOARD TO MODIFY THE SENTENCES WAS RAISED AND THE PETITION
WAS DENIED WITHOUT OPINION.  UNITED STATES V. FOWLER, 1 U.S.C.M.A.
713.  THE SOLDIERS, HAVING STARTED TO SERVE THEIR SENTENCES, WERE HELD
IN DIFFERENT PRISONS.  EACH FILED A WRIT OF HABEAS CORPUS IN THE
DISTRICT IN WHICH HE WAS IMPRISONED AND EACH RAISED THE SAME ISSUE OF
THE AUTHORITY OF THE BOARD OF REVIEW TO SENTENCE IN THE MANNER
DESCRIBED.  A CONFLICT BETWEEN THE CIRCUITS HAS RESULTED (FN2) AND WE
GRANTED CERTIORARI, LIMITED TO THE GROSS SENTENCE QUESTION, NOT ONLY TO
RESOLVE THIS CONFLICT BUT TO SETTLE AN IMPORTANT QUESTION IN THE
ADMINISTRATION OF THE UNIFORM CODE, 352 U.S. 940. 

PETITIONER CLAIMS NO DEPRIVATION OF CONSTITUTIONAL RIGHTS.  HE ARGUES
ONLY THAT UNDER MILITARY LAW THE BOARD OF REVIEW SHOULD HAVE ORDERED
EITHER A REHEARING OR THAT HE BE RELEASED BECAUSE IT WAS WITHOUT
AUTHORITY TO IMPOSE THE 20-YEAR SENTENCE. 

THE REVIEW BOARD DERIVES ITS POWER FROM ARTICLE 66 OF THE UNIFORM
CODE OF MILITARY JUSTICE, 64 STAT. 128, 50 U.S.C. SEC. 653.  (FN3)  WE
ARE CONCERNED MORE PARTICULARLY WITH SUBSECTION (C) OF THAT SECTION. 
IT PROVIDES: 

"(C)  IN A CASE REFERRED TO IT, THE BOARD OF REVIEW SHALL ACT ONLY
WITH RESPECT TO THE FINDINGS AND SENTENCE AS APPROVED BY THE CONVENING
AUTHORITY.  IT SHALL AFFIRM ONLY SUCH FINDINGS OF GUILTY, AND THE
SENTENCE OR SUCH PART OR AMOUNT OF THE SENTENCE, AS IT FINDS CORRECT IN
LAW AND FACT AND DETERMINES, ON THE BASIS OF THE ENTIRE RECORD, SHOULD
BE APPROVED.  IN CONSIDERING THE RECORD IT SHALL HAVE AUTHORITY TO
WEIGH THE EVIDENCE, JUDGE THE CREDIBILITY OF WITNESSES, AND DETERMINE
CONTROVERTED QUESTIONS OF FACT, RECOGNIZING THAT THE TRIAL COURT SAW
AND HEARD THE WITNESSES." 

HERE THE BOARD RELIED ON ITS POWER TO "AFFIRM  ...  SUCH PART OR
AMOUNT OF THE SENTENCE, AS IT FINDS CORRECT  ...  ."  PETITIONER
ARGUES, HOWEVER, THAT THE 20-YEAR SENTENCE WAS NOT A "PART OR AMOUNT"
OF THE SENTENCE IMPOSED BY THE COURT-MARTIAL.  HE SUPPORTS THIS BY
REFERENCE TO THE ACTION OF THE LAW OFFICER OF THE COURT-MARTIAL WHO,
AFTER THE FINDINGS OF GUILT WERE RETURNED, ADVISED ITS MEMBERS IN OPEN
COURT OF THE PUNISHMENT IT MIGHT IMPOSE.  IN VIEW OF THE FINDING ON THE
MURDER CHARGE, HE TOLD THE COURT-MARTIAL IT HAD ONLY TWO ALTERNATIVES,
A DEATH SENTENCE OR LIFE IMPRISONMENT.  ART. OF WAR 92, 62 STAT. 640. 
HE MADE NO REFERENCE TO THE PUNISHMENT FOR ATTEMPTED RAPE, THE MAXIMUM
FOR WHICH IS 20 YEARS.  SINCE THE COURT-MARTIAL WAS REQUIRED TO IMPOSE
A SINGLE SENTENCE COVERING BOTH OF THE GUILTY FINDINGS, (FN4) IT
ENTERED A LIFE SENTENCE.  PETITIONER CLAIMS THERE WAS NO SENTENCE ON
THE ATTEMPTED RAPE CONVICTION AND, THEREFORE, THE ENTRY OF A 20-YEAR
SENTENCE THEREON BY THE BOARD WAS AN ENTIRELY NEW AND INDEPENDENT
IMPOSITION WHICH WAS BEYOND ITS POWER.  HE BASES THIS CONCLUSION WHOLLY
ON DEDUCTION.  HE CONTENDS THAT SINCE THE LAW OFFICER ADVISED THE COURT
MARTIAL ONLY AS TO THE PUNISHMENT FOR MURDER IT FOLLOWS THAT IT DID NOT
SENTENCE HIM ON THE ATTEMPTED RAPE CHARGE.  BUT WHY SHOULD THE OFFICER
GO THROUGH THE USELESS MOTION OF INSTRUCTING ON THE ATTEMPTED RAPE WHEN
THE COURT-MARTIAL BY LAW WAS REQUIRED TO IMPOSE A SENTENCE OF DEATH OR
LIFE IMPRISONMENT?  THE SENTENCE COULD HAVE BEEN NO HEAVIER UNLESS IT
WERE DEATH.  WHAT POSSIBLE GOOD WOULD IT HAVE DONE FOR THE COURT
MARTIAL, IF IT HAD BEEN AUTHORIZED, TO ADD 20 OR ANY OTHER NUMBER OF
YEARS ONTO A LIFE SENTENCE?  IN ADDITION TO THE FACT THAT THE UNIFORM
CODE AUTHORIZES NO SUCH SENTENCE WE SHOULD NOT CONSTRUE THE ACT OF
CONGRESS TO REQUIRE THE DOING OF A USELESS ACT. 

BUT, THE PETITIONER SAYS, SIMPLE ARITHMETIC SHOWS THAT NO SENTENCE
WAS IMPOSED ON THE ATTEMPTED RAPE FINDING.  HE REASONS THAT THE OFFENSE
OF PREMEDITATED MURDER CARRIES A MINIMUM PUNISHMENT OF LIFE
IMPRISONMENT, THE EXACT SENTENCE HE RECEIVED.  THE SENTENCE THEREFORE
INCLUDED NO PUNISHMENT COVERING THE ATTEMPTED RAPE FINDING HE CLAIMS. 
IT IS TRUE THAT THE SENTENCE WAS NOT BROKEN DOWN AS TO OFFENSES.  THAT
IS NOT PERMITTED.  HOWEVER, THE PETITIONER IN HIS ANALYSIS OVERLOOKS
ENTIRELY THE REQUIREMENT OF MILITARY LAW THAT ONLY THE ENTRY OF A
SINGLE GROSS SENTENCE FOR BOTH OF THE OFFENSES IS PERMITTED.  THIS
COURT HAS APPROVED THIS PRACTICE.  CARTER V. MCCLAUGHRY, 183 U.S. 365,
393 (1902).  SEE ALSO MCDONALD V. LEE, 217 F.2D 619, 622 (1954);
WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED. 1920), 404.  THE SENTENCE
HERE WAS A GROSS SENTENCE.  IT COVERED BOTH THE CONVICTIONS.  WHAT THE
PETITIONER WOULD HAVE US DO IS TO STRIKE DOWN THIS LONG PRACTICE, NOT
ONLY APPROVED OVER THE YEARS BY THE CONGRESS BUT BY OUR CASES.  THIS WE
CANNOT DO. 

THE QUESTION REMAINS WHETHER THE BOARD HAD THE AUTHORITY TO MODIFY
THE LIFE SENTENCE TO 20 YEARS AFTER THE MURDER CONVICTION WAS SET
ASIDE.  REVIEWING AUTHORITIES HAVE BROAD POWERS UNDER MILITARY LAW. 
(FN5)  UNLIKE A CIVILIAN TRIAL IN MOST JURISDICTIONS, THE INITIAL
SENTENCE UNDER MILITARY LAW IS IMPOSED BY THE MEMBERS OF THE COURT
MARTIAL.  OTHERWISE THE COURT-MARTIAL PERFORMS FUNCTIONS MORE LIKE
THOSE OF A JURY THAN A COURT.  IT IS COMPOSED OF LAYMEN.  SEE ART. 25
OF THE UNIFORM CODE, 64 STAT. 116, 50 U.S.C. SEC. 589.  THE POWERS OF
REVIEW, MODIFICATION, AND SENTENCE-ADJUSTMENT UNDER THE UNIFORM CODE
REST ELSEWHERE THAN ON THIS BODY OF LAYMEN. 

REVIEW OF A COURT-MARTIAL CONVICTION IS FIRST PROVIDED BY THE
CONVENING AUTHORITY - THE COMMANDING OFFICER WHO DIRECTED THAT THE CASE
BE TRIED BEFORE A COURT-MARTIAL.  HE IS EMPOWERED TO REDUCE A SENTENCE
THOUGH HE CANNOT INCREASE IT.  HE CAN WEIGH FACTS, DETERMINE
CREDIBILITY OF WITNESSES, DISAPPROVE FINDINGS OF GUILT WHICH HE
BELIEVES ERRONEOUS IN LAW OR FACT, AND DETERMINE SENTENCE
APPROPRIATENESS WITHOUT REGARD TO WHAT THE COURT-MARTIAL MIGHT HAVE
DONE HAD IT CONSIDERED ONLY THE APPROVED FINDINGS.  ART. 64 OF THE
UNIFORM CODE, 64 STAT. 128, 50 U.S.C. SEC. 651.  HE HAS OTHER BROAD
POWERS.  SEE MANUAL FOR COURTS-MARTIAL, UNITED STATES (1951), C. 17. 
HERE THE CONVENING AUTHORITY APPROVED THE ACTION OF THE COURT-MARTIAL. 

THE MEXT STAGE OF REVIEW IS THAT WITH WHICH WE ARE PARTICULARLY
CONCERNED.  IT IS CONDUCTED BY THE BOARD OF REVIEW COMPOSED OF LEGALLY
TRAINED OFFICERS.  (FN6)  SUCH BOARDS FIRST RECEIVED STATUTORY
RECOGNITION IN 1920.  ART. OF WAR 50 1/2, 41 STAT. 797-799.  AT THAT
TIME CONGRESS GAVE THEM POWER TO REVIEW, WITH THE JUDGE ADVOCATE
GENERAL, RECORDS FOR LEGAL SUFFICIENCY.  BY 1949 THIS POWER WAS
INCREASED TO WEIGH FACTS, THOUGH, AS PETITIONER ARGUES, THESE BOARDS
STILL DID NOT HAVE POWER TO DETERMINE SENTENCE APPROPRIATENESS.  ART.
OF WAR 50(G), 62 STAT. 637.  SUCH POWER WAS, HOWEVER, GIVEN TO THE
JUDGE ADVOCATE GENERAL AND A JUDICIAL COUNCIL.  (FN7) 

AGAINST THIS BACKGROUND OF BROAD POWERS OF REVIEW UNDER MILITARY LAW,
CONGRESS BEGAN THE DRAFTING OF THE NEW UNIFORM CODE OF MILITARY
JUSTICE.  THEIR WORK CULMINATED, SO FAR AS WE ARE HERE CONCERNED, WITH
ARTICLE 66(C), SUPRA.  PETITIONER FINDS THE LANGUAGE OF THIS SENTENCE
AMBIGUOUS AND ARGUES THAT ANY AMBIGUITY MUST BE RESOLVED IN FAVOR OF
THE ACCUSED.  THAT WOULD BE TRUE IF THERE WERE AMBIGUITY IN THE
PART OR AMOUNT OF THE SENTENCE, AS IT FINDS CORRECT  ...  ."  THAT IS
PRECISELY WHAT THE REVIEW BOARD DID HERE.  IT AFFIRMED SUCH PART, 20
YEARS, OF THE SENTENCE, LIFE IMPRISONMENT, AS IT FOUND CORRECT IN FACT
AND LAW FOR THE OFFENSE OF ATTEMPTED RAPE.  WERE THE WORDS THEMSELVES
UNCLEAR, THE TEACHINGS FROM THE LEGISLATIVE HISTORY OF THE SECTION
WOULD COMPEL THE SAME RESULT.   THE UNIFORM CODE WAS DRAFTED BY A
COMMITTEE CHAIRMANNED BY PROFESSOR EDMUND M. MORGAN, JR. IN TESTIFYING
BEFORE THE SENATE SBUCOMMITTEE WHICH CONSIDERED THE BILL, PROFESSOR
MORGAN STATED WITH REFERENCE TO THE REVIEW BOARD THAT IT NOW: 

"HAS VERY EXTENSIVE POWERS.  IT MAY REVIEW LAW, FACTS, AND
PRACTICALLY, SENTENCES; BECAUSE THE PROVISIONS STIPULATE THAT THE BOARD
OF REVIEW SHALL AFFIRM ONLY SO MUCH OF THE SENTENCE AS IT FINDS TO BE
JUSTIFIED BY THE WHOLE RECORD.  IT GIVES THE BOARD OF REVIEW  ...  THE
POWER TO REVIEW FACTS, LAW AND SENTENCE  ...  ."  HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON ARMED SERVICES ON S. 857 AND
H.R. 4080, 81ST CONG., 1ST SESS. 42. 

MILITARY OFFICIALS OPPOSED GIVING THE REVIEW BOARDS POWER TO ALTER
SENTENCES.  ID., AT 262, 285.  THE SUBCOMMITTEE NEVERTHELESS DECIDED
THE BOARDS SHOULD HAVE THAT POWER.  ID., AT 311.  THE COMMITTEE REPORT
TO THE SENATE AUGMENTS THE CONCLUSION THAT THE BOARDS OF REVIEW WERE TO
HAVE THE POWER TO ALTER SENTENCES.  (FN8)  A STUDY OF THE LEGISLATIVE
HISTORY OF THE CODE IN THE HOUSE OF REPRESENTATIVES LEADS TO THE SAME
CONCLUSION.  SEE H.R. REP. NO. 491, 81ST CONG., 1ST SESS. 31; 95 CONG.
REC. 5729.  ARTICLE 66 WAS ENACTED IN THE LANGUAGE APPROVED BY THE
COMMITTEES.  IT IS MANIFEST THEN THAT IT WAS THE INTENT OF CONGRESS
THAT A BOARD OF REVIEW SHOULD EXERCISE JUST SUCH AUTHORITY AS WAS
EXERCISED HERE.  (FN9) 

BOARDS OF REVIEW HAVE BEEN ALTERING SENTENCES FROM THE INCEPTION OF
THE CODE PROVISION.  THESE ALTERATIONS HAVE BEEN ATTACKED BUT HAVE
FOUND APPROVAL IN THE COURTS AS IS SHOWN BY THE LIST OF CASES COLLECTED
IN THE OPINION OF JUDGE HASTIE IN THE COURT OF APPEALS.  234 F.2D, AT
614, N. 3.  PETITIONER OBJECTS, HOWEVER, THAT THE BOARD OF REVIEW
SHOULD NOT HAVE IMPOSED THE MAXIMUM SENTENCE FOR ATTEMPTED RAPE BECAUSE
THE COURT-MARTIAL MIGHT HAVE IMPOSED A LESSER SENTENCE HAD IT
CONSIDERED THE MATTER INITIALLY.  BUT THIS IS AN OBJECTION THAT MIGHT
PROPERLY BE ADDRESSED TO CONGRESS.  IT HAS LAID DOWN THE MILITARY LAW
AND IT CAN TAKE IT AWAY OR RESTRICT IT.  THE CONGRESS COULD HAVE
REQUIRED A COURT-MARTIAL TO ENTER A SENTENCE ON EACH SEPARATE OFFENSE
JUST AS IS DONE IN THE CIVILIAN COURTS.  THE BOARD OF REVIEW WOULD THEN
KNOW THE ATTITUDE OF THE COURT-MARTIAL AS TO PUNISHMENT ON EACH OF ITS
FINDINGS OF GUILTY.  BUT THIS THE CONGRESS DID NOT DO.  THE ARGUMENT,
THEREFORE, FALLS SINCE IT IS BASED ON PURE CONJECTURE.  NO ONE COULD
SAY WHAT SENTENCE THE COURT-MARTIAL WOULD HAVE IMPOSED IF IT HAD FOUND
PETITIONER GUILTY ONLY OF ATTEMPTED RAPE.  BUT CONGRESS AVOIDED THE
NECESSITY FOR CONJECTURE AND SPECULATION BY PLACING AUTHORITY IN THE
BOARD OF REVIEW TO CORRECT NOT ONLY THE FINDINGS AS TO GUILT BUT THE
SENTENCE AS WELL.  LIKEWISE THE APPORTIONMENT OF THE SENTENCE THAT THE
COURT-MARTIAL INTENDED AS BETWEEN THE OFFENSES WOULD BE PURE
SPECULATION.  (FN10)  BUT BECAUSE OF THE GROSS SENTENCE PROCEDURE IN
MILITARY LAW WE NEED NOT CONCERN OURSELVES WITH THESE PROBLEMS. 
MILITARY LAW PROVIDES THAT ONE AGGREGATE SENTENCE MUST BE IMPOSED AND
THE BOARD OF REVIEW MAY MODIFY THAT SENTENCE IN THE MANNER IT FINDS
APPROPRIATE.  TO SAY IN THIS CASE THAT A GROSS SENTENCE WAS NOT IMPOSED
IS TO SHUT ONE'S EYES TO THE REALITIES OF MILITARY LAW AND CUSTOM. 
FINALLY THE PETITIONER SUGGESTS THAT THE CASE SHOULD BE REMANDED FOR A
REHEARING BEFORE THE COURT-MARTIAL ON THE QUESTION OF THE SENTENCE.  WE
FIND NO AUTHORITY IN THE UNIFORM CODE FOR SUCH A PROCEDURE AND THE
PETITIONER POINTS TO NONE.  (FN11)  THE REASON IS, OF COURSE, THAT THE
CONGRESS INTENDED THAT THE BOARD OF REVIEW SHOULD EXERCISE THIS POWER. 
THIS IS TRUE BECAUSE THE NATURE OF A COURT-MARTIAL PROCEEDING MAKES IT
IMPRACTICAL AND UNFEASIBLE TO REMAND FOR THE PURPOSE OF SENTENCING
ALONE.  SEE UNITED STATES V. KEITH, 1 U.S.C.M.A. 442, 451, 4 C.M.R. 34,
43 (1952).  EVEN PETITIONER ADMITS THAT IT WOULD NOW, SIX YEARS AFTER
THE TRIAL, BE IMPRACTICAL TO ATTEMPT TO RECONVENE THE COURT-MARTIAL
THAT DECIDED THE CASE ORIGINALLY.  A COURT-MARTIAL HAS NEITHER
CONTINUITY NOR SITUS AND OFTEN SITS TO HEAR ONLY A SINGLE CASE. 
BECAUSE OF THE NATURE OF MILITARY SERVICE, THE MEMBERS OF A COURT
MARTIAL MAY BE SCATTERED THROUGHOUT THE WORLD WITHIN A SHORT TIME AFTER
A TRIAL IS CONCLUDED.  RECOGNIZING THE IMPOSSIBILITY OF REMAND TO THE
SAME COURT-MARTIAL, PETITIONER SUGGESTS AS AN ALTERNATIVE THAT THE CASE
SHOULD BE REMANDED FOR A REHEARING BEFORE A NEW COURT-MARTIAL.  (FN12)
HE ADMITS THAT IT WOULD NOW BE IMPRACTICAL FOR SUCH A NEW COURT-MARTIAL
TO HEAR ALL OF THE EVIDENCE, AND THAT THE COURT WOULD HAVE TO MAKE ITS
SENTENCE DETERMINATION ON THE BASIS OF WHAT IT COULD LEARN FROM READING
THE RECORD.  SUCH A PROCEDURE WOULD MERELY SUBSTITUTE ONE GROUP OF
NONPARTICIPANTS IN THE ORIGINAL TRIAL FOR ANOTHER.  CONGRESS THOUGHT
THE BOARD OF REVIEW COULD MODIFY SENTENCES WHEN APPROPRIATE MORE
EXPEDITIOUSLY, MORE INTELLIGENTLY, AND MORE FAIRLY.  ACTING ON A
NATIONAL BASIS THE BOARD OF REVIEW CAN CORRECT DISPARITIES IN SENTENCES
AND THROUGH ITS LEGALLY-TRAINED PERSONNEL DETERMINE MORE APPROPRIATELY
THE PROPER DISPOSITION TO BE MADE OF THE CASES.  CONGRESS MUST HAVE
KNOWN OF THE PROBLEMS INHERENT IN REHEARING AND REVIEW PROCEEDINGS FOR
THE PROCEDURES WERE ADOPTED LARGELY FROM PRIOR LAW.  IT IS NOT FOR US
TO QUESTION THE JUDGMENT OF THE CONGRESS IN SELECTING THE PROCESS IT
CHOSE.  AFFIRMED. 

FN1  THE MANUAL FOR COURTS-MARTIAL, UNITED STATES (1951), APP. 8, AT
521, SPECIFICALLY PROVIDES, INTER ALIA:  "THE COURT WILL ADJUDGE A
SINGLE SENTENCE FOR ALL THE OFFENSES OF WHICH THE ACCUSED WAS FOUND
GUILTY."  THIS SENTENCE IS KNOWN AS AN "AGGREGATE" OR "GROSS"
SENTENCE.  A COURT-MARTIAL MAY NOT IMPOSE SEPARATE SENTENCES FOR EACH
FINDING OF GUILT, BUT MAY IMPOSE ONLY A SINGLE, UNITARY SENTENCE
COVERING ALL OF THE GUILTY FINDINGS IN THEIR ENTIRETY, NO MATTER HOW
MANY SUCH FINDINGS THERE MAY BE. 

FN2  CARL DE COSTER, ONE OF THE CODEFENDANTS WITH PETITIONER, WAS
RELEASED ON AN ORDER OF THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 
SEE DE COSTER V. MADIGAN, 223 F.2D 906 (1955).  THE OTHER CODEFENDANT,
HARRIEL FOWLER, WAS DENIED RELEASE BY THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT.  SEE WILKINSON V. FOWLER, 234 F.2D 615 (1956).  WHILE NO
PETITION WAS FILED IN THE DE COSTER CASE, WE GRANTED CERTIORARI IN BOTH
THE PETITIONER'S AND FOWLER'S CASES. 

FN3  SINCE THIS ACTION WAS FILED THIS SECTION HAS BEEN REVISED AND
RECODIFIED AS 70A STAT. 59, 10 U.S.C. (SUPP. IV) SEC. 866.  THE CHANGES
IN LANGUAGE ARE NOT PERTINENT TO THIS CASE.  OTHER SECTIONS OF THE
UNIFORM CODE ARE CITED IN THE FORM AND SOURCE IN WHICH THEY APPEARED
DURING THE COURSE OF THIS LITIGATION.  THE UNIFORM CODE NOW APPEARS IN
70A STAT. 36-78, 10 U.S.C. (SUPP. IV) SECS. 801-934. 

FN4  SEE NOTE 1, SUPRA. 

FN5  FOR A DETAILED ANALYSIS AND HISTORY OF REVIEW POWERS UNDER
MILITARY LAW SEE FRATCHER, APPELLATE REVIEW IN AMERICAN MILITARY LAW,
14 MO. L. REV. 15 (1949). 

FN6  ART. 66(A) OF THE UNIFORM CODE, 64 STAT. 128, 50 U.S.C. SEC.
653(A) PROVIDES: 

"(A)  THE JUDGE ADVOCATE GENERAL OF EACH OF THE ARMED FORCES SHALL
CONSTITUTE IN HIS OFFICE ONE OR MORE BOARDS OF REVIEW, EACH COMPOSED OF
NOT LESS THAN THREE OFFICERS OR CIVILIANS, EACH OF WHOM SHALL BE A
MEMBER OF THE BAR OF A FEDERAL COURT OR OF THE HIGHEST COURT OF A STATE
OF THE UNITED STATES." 

FN7  SEE ART. OF WAR 51(A), 62 STAT. 638, AND ART. OF WAR 49, 62
STAT. 635. 

FN8  "THE BOARD OF REVIEW SHALL AFFIRM A FINDING OF GUILTY OF AN
OFFENSE OR A LESSER INCLUDED OFFENSE  ...  IF IT DETERMINES THAT THE
FINDING CONFORMS TO THE WEIGHT OF THE EVIDENCE AND THAT THERE HAS BEEN
NO ERROR OF LAW WHICH MATERIALLY PREJUDICES THE SUBSTANTIAL RIGHTS OF
THE ACCUSED ...  .  THE BOARD MAY SET ASIDE, ON THE BASIS OF THE
RECORD, ANY PART OF A SENTENCE, EITHER BECAUSE IT IS ILLEGAL OR BECAUSE
IT IS INAPPROPRIATE.  IT IS CONTEMPLATED THAT THIS POWER WILL BE
EXERCISED TO ESTABLISH UNIFORMITY OF SENTENCES THROUGHOUT THE ARMED
FORCES."  S. REP. NO. 486, 81ST CONG., 1ST SESS. 28. 

FN9  COMMENTATORS HAVE RECOGNIZED THIS POWER OF SENTENCE REVIEW SINCE
THE ENACTMENT OF THE CODE.  SEE, E.G., CURRIER AND KENT, THE BOARDS OF
REVIEW OF THE ARMED SERVICES, 6 VAND.  L. REV. 241 (1953).   "THE
GREATEST SINGLE CHANGE BROUGHT ABOUT IN THE POWERS AND DUTIES OF THE
BOARDS OF REVIEW BY THE UNIFORM CODE OF MILITARY JUSTICE IS THE POWER
OF THE BOARD TO AFFIRM ONLY SO MUCH OF THE SENTENCE IN A GIVEN CASE AS
IT FINDS APPROPRIATE."  ID., AT 242.  SEE ALSO 65 YALE L.J. 413. 

FN10  PETITIONER COMPLAINS THAT THE 20-YEAR SENTENCE FOR ATTEMPTED
RAPE WAS EXCESSIVE.  HE ARGUES THAT BECAUSE THE COURT-MARTIAL GAVE HIM
THE MINIMUM SENTENCE FOR PREMEDITATED MURDER, IT WOULD NOT HAVE GIVEN
THE MAXIMUM SENTENCE FOR ATTEMPTED RAPE.  WE NEED NOT SPECULATE ON WHAT
THE COURT-MARTIAL WOULD HAVE DONE, NOR WILL WE INTERFERE WITH THE
DISCRETION EXERCISED BY THE BOARD OF REVIEW.  IT HELD THAT IN THE
"VICIOUS CIRCUMSTANCES OF THIS CASE," 20 YEARS WAS AN APPROPRIATE
SENTENCE.  FURTHERMORE, SINCE THE SENTENCE WAS LEGALLY IMPOSED, ITS
SEVERITY IS NOT REVIEWABLE ON HABEAS CORPUS IN THE CIVIL COURTS. 
CARTER V. MCCLAUGHRY, 183 U.S. 365, 401 (1902) 

FN11  THE UNITED STATES COURT OF MILITARY APPEALS IN UNITED STATES V.
FIELD, 5 U.S.C.M.A.  379, 18 C.M.R. 3 (1955), HESITATINGLY SUGGESTED IN
DICTUM THAT A CONVENING AUTHORITY MIGHT RETURN A CASE TO A COURT
MARTIAL SOLELY FOR THE PURPOSE OF A REASSESSMENT OF SENTENCE ON THE
FINDINGS OF GUILT AFFIRMED BY HIM.  THE COURT INDICATED THAT SUCH A
PRACTICE WOULD BE UNLIKELY FOR "OBVIOUS AND COMPELLING REASONS OF A
PRACTICAL CHARACTER."  ID., AT 385, 18 C.M.R., AT 9.  IT EXPLICITLY
REFUSED TO EXPRESS AN OPINION CONCERNING THE DESIRABILITY OF THE
PRACTICE.  THERE, OF COURSE, WAS NO SUGGESTION THAT THE PRACTICE WAS
MANDATORY FOR THE CONVENING AUTHORITY HAS, JUST AS HAS THE BOARD OF
REVIEW, THE POWER TO MODIFY A SENTENCE TO MAKE IT APPROPRIATE.  SEE
ALSO UNITED STATES V. VOORHEES, 4 U.S.C.M.A. 509, 543, 16 C.M.R. 83,
117 (1954). 

FN12  IT IS WELL TO POINT OUT THAT THE UNIFORM CODE PERMITS THE
CONVENING AUTHORITY UNDER LIMITED CIRCUMSTANCES TO RETURN A CASE FOR
"RECONSIDERATION AND REVISION" TO A COURT-MARTIAL COMPOSED OF "ONLY
...  THE MEMBERS OF THE COURT WHO PARTICIPATED IN THE FINDINGS AND
SENTENCE."  SEE ART. 62 OF THE UNIFORM CODE, 64 STAT. 127, 50 U.S.C.
SEC.  649, AND MANUAL FOR COURTS-MARTIAL, UNITED STATES (1951), AT
130.  THIS WOULD BE IMPOSSIBLE AFTER THE PASSAGE OF TIME IN NEARLY
EVERY CASE SINCE THE ORIGINAL COURT-MARTIAL COULD NOT BE REASSEMBLED. 
ON THE OTHER HAND, IF RESENTENCING IS A LIMITED TYPE OF REHEARING, THE
UNIFORM CODE REQUIRES THE REHEARING TO "TAKE PLACE BEFORE A COURT
MARTIAL COMPOSED OF MEMBERS NOT MEMBERS OF THE COURT-MARTIAL WHICH
FIRST HEARD THE CASE."  ART. 63 OF THE UNIFORM CODE, 64 STAT. 127, 50
U.S.C. SEC. 650.  SUCH A COURT-MARTIAL WOULD BE NO MORE CAPABLE - IF AS
CAPABLE - AS A BOARD OF REVIEW. 

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE DOUGLAS JOIN, DISSENTING. 

I AM UNABLE TO SEE HOW THE ACTION OF THE BOARD OF REVIEW CAN FAIRLY
BE CHARACTERIZED AS OTHER THAN AN ORIGINAL IMPOSITION OF SENTENCE BY
THE BOARD FOR THE OFFENSE OF ATTEMPTED RAPE.  THE UNIFORM CODE OF
MILITARY JUSTICE GRANTS NO POWER TO THE BOARD TO IMPOSE ORIGINAL
SENTENCES.  64 STAT. 128, 50 U.S.C. SEC. 653.  THAT POWER IS RESERVED
EXCLUSIVELY TO THE COURT-MARTIAL.  THERE WAS, THEREFORE, NO VALID GROSS
SENTENCE EMBRACING ATTEMPTED RAPE UPON WHICH THE BOARD'S POWER TO REMIT
AN EXCESSIVE PORTION COULD OPERATE.  I SUBSCRIBE TO WHAT JUDGE MAJOR
SAID IN THE SIMILAR CASE OF DE COSTER V. MADIGAN, 223 F.2D 906, 909-910
(C.A. 7TH CIR. 1955), IN WHICH DE COSTER WAS ALLOWED HABEAS CORPUS AND
ORDERED DISCHARGED: 

"  ... WHILE THE COURT-MARTIAL OBVIOUSLY HAD JURISDICTION OF
PLAINTIFF AND THE OFFENSES WITH WHICH HE WAS CHARGED, IT DID NOT FULLY
AND FAIRLY DEAL WITH HIM.  THE LAW OFFICER INSTRUCTED THE COURT-MARTIAL
THAT THE MINIMUM SENTENCE WHICH COULD BE IMPOSED ON THE MURDER CHARGE
WAS LIFE IMPRISONMENT.  BUT THE LAW OFFICER GAVE NO INSTRUCTIONS AS TO
THE PUNISHMENT WHICH COULD BE IMPOSED ON THE ATTEMPTED RAPE CHARGE. 
THE COURT-MARTIAL FOUND PLAINTIFF GUILTY OF BOTH MURDER AND ATTEMPTED
RAPE, BUT ITS SENTENCE WAS LIFE-IMPRISONMENT, THE MINIMUM SENTENCE FOR
THE MURDER CHARGE ALONE.  OF COURSE, ANY SUGGESTION THAT THE COURT
MARTIAL SHOULD HAVE SENTENCED PLAINTIFF FOR A TERM OF LIFE PLUS TWENTY
YEARS WOULD BE RIDICULOUS, BUT EQUALLY SO IS THE ASSERTION THAT THE
COURT-MARTIAL DID OR INTENDED TO IMPOSE ANY PART OF ITS SENTENCE FOR
ATTEMPTED RAPE.  IT LACKED EVEN THE NECESSARY INSTRUCTIONS UPON WHICH
SUCH AWARD OF PUNISHMENT WOULD HAVE TO BE BASED.  IMPOSITION OF
SENTENCE BY THE PROPER AUTHORITY IS AN ESSENTIAL STEP IN ADMINISTRATION
OF CRIMINAL JUSTICE.  HERE, UNDER THE STATUTE, ONLY THE COURT-MARTIAL
WAS AUTHORIZED TO TAKE THIS STEP; IT FAILED TO DO SO." 
..END :









FOWLER V. WILKINSON 353 U.S. 583 


NO. 620.  ARGUED APRIL 30, 1957 - DECIDED JUNE 3, 1957 - 234 F.2D 615,
AFFIRMED. 


1.  AFTER A GENERAL COURT-MARTIAL HAD CONVICTED A SOLDIER OF THE TWO
SEPARATE CRIMES OF PREMEDITATED MURDER AND ATTEMPTED RAPE AND HAD
IMPOSED AN AGGREGATE SENTENCE OF LIFE IMPRISONMENT FOR BOTH OFFENSES,
AN ARMY BOARD OF REVIEW, AFTER SETTING ASIDE THE CONVICTION ON THE
MURDER CHARGE, HAD AUTHORITY UNDER ARTICLE 66(C) OF THE UNIFORM CODE OF
MILITARY JUSTICE TO REDUCE THE SENTENCE TO THE MAXIMUM SENTENCE FOR
ATTEMPTED RAPE.  JACKSON V. TAYLOR, ANTE, P. 569.  PP. 583-585. 

2.  IN A HABEAS CORPUS PROCEEDING, A CIVIL COURT MAY NOT REVISE A
SENTENCE IMPOSED ON A SOLDIR BY MILITARY AUTHORITIES AFTER HIS
CONVICTION BY COURT-MARTIAL, ON THE GROUND THAT THE SENTENCE IS
ARBITRARILY SEVERE.  CARTER V. MCCLAUGHRY, 183 U.S. 365, FOLLOWED. 
UNITED STATES V. VOORHEES, 4 U.S.C.M.A. 509, 16 C.M.R. 83,
DISTINGUISHED.  PP. 584-585. 

3.  THE ACTION OF THE BOARD OF REVIEW IN ADJUSTING THE SENTENCE DOES
NOT DEPRIVE THE ACCUSED OF ANY RIGHT OF APPELLATE REVIEW.  P. 585. 

FOWLER V. WILKINSON, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE FACTUAL BACKGROUND AND THE QUESTION PRESENTED IN THIS CASE ARE
THE SAME AS IN JACKSON V. TAYLOR, ANTE, P. 569, DECIDED TODAY.  THE
CASE REACHES US FROM THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, 234
F.2D 615, WHICH HAD REVERSED THE DISTRICT COURT.  WE GRANTED
CERTIORARI, 352 U.S. 940. 

THERE ARE ADDITIONAL REASONS TO THOSE IN JACKSON V. TAYLOR ADVANCED
FOR REVERSAL IN THIS CASE.  FOWLER CONTENDS THAT THE 20-YEAR SENTENCE
IS ARBITRARILY SEVERE, EVEN THOUGH WITHIN THE STATUTORY MAXIMUM, CITING
UNITED STATES V. VOORHEES, 4 U.S.C.M.A. 509, 16 C.M.R. 83 (1954).  BUT
AS WE SAID IN BURNS V. WILSON, 346 U.S. 137 (1953), THIS COURT EXERTS
"NO SUPERVISORY POWER OVER THE COURTS WHICH ENFORCE (MILITARY LAW); 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.  THE FRAMERS EXPRESSLY ENTRUSTED THAT TASK
TO CONGRESS."  ID., AT 140.  IF THERE IS INJUSTICE IN THE SENTENCE
IMPOSED IT IS FOR THE EXECUTIVE TO CORRECT, FOR SINCE THE BOARD OF
REVIEW HAS AUTHORITY TO ACT, WE HAVE NO JURISDICTION TO INTERFERE WITH
THE EXERCISE OF ITS DISCRETION.  THAT POWER IS PLACED BY THE CONGRESS
IN THE HANDS OF THOSE ENTRUSTED WITH THE ADMINISTRATION OF MILITARY
JUSTICE, OR IF CLEMENCY IS IN ORDER, THE EXECUTIVE.  IT MAY BE THAT THE
BOARD'S JUDGMENT WAS HARSH OR THAT THE MILITARY'S HIGHEST COURT SHOULD
HAVE INTERVENED AS IT DID IN THE VOORHEES CASE, BUT WE HAVE NO
JURSIDICTION IN THAT REGARD.  AS LONG AGO AS 1902 THIS COURT RECOGNIZED
THAT IT WAS A "SALUTARY RULE THAT THE SENTENCES OF COURTS MARTIAL, WHEN
AFFIRMED BY THE MILITARY TRIBUNAL OF LAST RESORT, CANNOT BE REVISED BY
THE CIVIL COURTS SAVE ONLY WHEN VOID BECAUSE OF AN ABSOLUTE WANT OF
POWER, AND NOT MERELY VOIDABLE BECAUSE OF THE DEFECTIVE EXERCISE OF
POWER POSSESSED."  CARTER V. MCCLAUGHRY, 183 U.S. 365, 401. 

WE NOTE THAT PETITIONER'S RELIANCE ON VOORHEES' CASE IS MISPLACED
WHEN HE CITES IT AS APPOSITE TO THE PROBLEM HERE PRESENTED.  WHILE THE
COURT OF MILITARY APPEALS HELD THERE THAT THE BOARD SHOULD HAVE ORDERED
A REHEARING, THE REHEARING WAS TO INCLUDE A RECONSIDERATION OF THE
FINDING OF GUILT AS WELL AS THE SENTENCE.  THOUGH, AS JUDGE LATIMER
INDICATES IN HIS OPINION, THE BOARD OF REVIEW HAD THE POWER TO APPROVE
THE SENTENCE, DISMISSAL FROM THE SERVICE, SUCH APPROVAL WAS FOUND BY
THAT COURT TO BE AN ABUSE OF THE DISCRETION PLACED IN THE BOARD UNDER
THE PARTICULAR CIRCUMSTANCES OF THE CASE.   WE, OF COURSE, DO NOT SIT
TO PASS ON THE EXERCISE OF DISCRETION BY THE MILITARY AUTHORITIES. 
JUDGE LATIMER FURTHER INDICATED THE COURT OF MILITARY APPEALS'
RECOGNITION OF THE POWER OF THE BOARD OF REVIEW TO AFFIRM SUCH PARTS,
OR AMOUNT OF A SENTENCE, AS IT FINDS CORRECT IN FACT AND LAW.  THE
CASE, THEN, INSTEAD OF SUPPORTING PETITIONER'S POSITION, INDICATES
AUTHORITY FOR THE POWER OF THE BOARD TO MODIFY THE SENTENCE.  SEE
UNITED STATES V. BIGGER, 2 U.S.C.M.A. 297, 8 C.M.R. 97 (1953). 

THE ARGUMENT THAT THE ADJUSTMENT OF THE SENTENCE BY THE BOARD
DEPRIVES THE PETITIONER OF TWO APPEALS LIKEWISE IS WITHOUT MERIT.  HE
CONTENDS THAT IF THE RESENTENCING WERE DONE BY A COURT-MARTIAL HE WOULD
HAVE A REVIEW OF THAT RESENTENCING BY THE CONVENING AUTHORITY AS WELL
AS THE BOARD OF REVIEW.  BUT CONGRESS DID NOT INTEND ANY SUCH RESULT. 
THE ACCUSED HAS ALREADY HAD HIS DAY BEFORE THE COURT-MARTIAL AND THE
CONVENING AUTHORITY.  IT IS NOT FOR US TO SAY THAT THE PROCEDURE
ESTABLISHED BY CONGRESS IS UNWISE.  THERE ARE NO CONSTITUTIONAL
QUESTIONS BEFORE US.  WE HAVE DETERMINED THAT THE BOARD OF REVIEW HAD
JURISDICTION TO MODIFY THE SENTENCE.  OUR INQUIRY CANNOT BE EXTENDED
BEYOND THAT QUESTION. 

FOR THESE REASONS, AND THOSE STATED IN JACKSON V. TAYLOR, ANTE, P.
569, THE JUDGMENT IS AFFIRMED. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR.
JUSTICE BRENNAN DISSENT FOR THE REASONS STATED IN THE DISSENTING
OPINION OF MR. JUSTICE BRENNAN IN NO. 619, JACKSON V. TAYLOR, ANTE, P.
581. 
..END :




















UNITED STATES V. E.I. DU PONT DE NEMOURS & CO. 353 U.S. 586 


NO. 3.  ARGUED NOVEMBER 14-15, 1956 - DECIDED JUNE 3, 1957 - 126 F.
SUPP. 235, REVERSED AND REMANDED. 


THIS IS A CIVIL ACTION BROUGHT BY THE GOVERNMENT IN 1949 UNDER SEC. 15
OF THE CLAYTON ACT TO ENJOIN VIOLATIONS OF SEC. 7 OF THAT ACT RESULTING
FROM THE PURCHASE BY DU PONT IN 1917-1919 OF A 23% STOCK INTEREST IN
GENERAL MOTORS.  THE ESSENCE OF THE CHARGE WAS THAT, BY MEANS OF THE
CLOSE RELATIONSHIP OF THE TWO COMPANIES, DU PONT HAD OBTAINED AN
ILLEGAL PREFERENCE OVER COMPETITORS IN THE SALE OF AUTOMOTIVE FINISHES
AND FABRICS TO GENERAL MOTORS, THUS TENDING TO "CREATE A MONOPOLY" IN A
"LINE OF COMMERCE."  AFTER TRIAL, THE DISTRICT COURT DISMISSED THE
COMPLAINT ON THE GROUND THAT THE GOVERNMENT HAD FAILED TO PROVE ITS
CASE, AND THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT.  HELD:  THE
GOVERNMENT PROVED A VIOLATION OF SEC. 7; THE JUDGMENT IS REVERSED AND
THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR A DETERMINATION, AFTER
FURTHER HEARING, OF THE EQUITABLE RELIEF NECESSARY AND APPROPRIATE IN
THE PUBLIC INTEREST TO ELIMINATE THE EFFECTS OF THE STOCK ACQUISITION
OFFENSIVE TO THE STATUTE.  PP. 588-608. 

(A)  ANY ACQUISITION OF ONE CORPORATION OF ALL OR ANY PART OF THE
STOCK OF ANOTHER CORPORATION, COMPETITOR OR NOT, WAS WITHIN THE REACH
OF SEC. 7 BEFORE ITS AMENDMENT IN 1950 WHENEVER THERE WAS REASONABLE
LIKELIHOOD THAT THE ACQUISITION WOULD RESULT IN A RESTRAINT OF COMMERCE
OR IN THE CREATION OF A MONOPOLY OF ANY "LINE OF COMMERCE" - I.E., IT
APPLIED TO VERTICAL AS WELL AS HORIZONTAL STOCK ACQUISITIONS.  PP. 590
593. 

(B)  FAILURE OF THE FEDERAL TRADE COMMISSION TO INVOKE SEC. 7 AGAINST
VERTICAL STOCK ACQUISITIONS IS NOT A BINDING ADMINISTRATIVE
INTERPRETATION THAT CONGRESS DID NOT INTEND VERTICAL ACQUISITIONS TO
COME WITHIN THE PURVIEW OF THE ACT.  P. 590. 

(C) THE RECORD SHOWS THAT AUTOMOTIVE FINISHES AND FABRICS HAVE
SUFFICIENT PECULIAR CHARACTERISTICS AND USES TO CONSTITUTE THEM
PRODUCTS SUFFICIENTLY DISTINCT FROM ALL OTHER FINISHES AND FABRICS TO
MAKE THEM A "LINE OF COMMERCE" WITHIN THE MEANING OF THE CLAYTON ACT. 
THEREFORE, THE BOUNDS OF THE RELEVANT MARKET FOR THE PURPOSES OF THIS
CASE ARE NOT COEXTENSIVE WITH THE TOTAL MARKET FOR FINISHES AND
FABRICS, BUT ARE COEXTENSIVE WITH THE AUTOMOBILE INDUSTRY, THE RELEVANT
MARKET FOR AUTOMOTIVE FINISHES AND FABRICS.  PP. 593-595. 

(D)  THE RECORD SHOWS THAT QUANTITATIVELY AND PERCENTAGEWISE DU PONT
SUPPLIES THE LARGEST PART OF GENERAL MOTORS' REQUIREMENTS OF FINISHES
AND FABRICS.  THEREFORE, DU PONT HAS A SUBSTANTIAL SHARE OF THE
RELEVANT MARKET.  PP. 595-596. 

(E)  THE TEST OF A VIOLATION IS WHETHER, AT THE TIME OF SUIT, THERE
IS A REASONABLE PROBABILITY THAT THE STOCK ACQUISITION MAY LEAD TO A
RESTRAINT OF COMMERCE OR TEND TO CREATE A MONOPOLY OF A LINE OF
COMMERCE.  THEREFORE, THE GOVERNMENT MAY MAINTAIN THIS SUIT, BROUGHT IN
1949, BASED UPON AN ACQUISITION OF STOCK WHICH OCCURRED IN 1917-1919. 
PP. 596-607. 

(F)  EVEN WHEN A PURCHASE OF STOCK IS SOLELY FOR INVESTMENT, THE
PLAIN LANGUAGE OF SEC. 7 CONTEMPLATES AN ACTION AT ANY TIME THE STOCK
IS USED TO BRING ABOUT, OR IN ATTEMPTING TO BRING ABOUT, A SUBSTANTIAL
LESSENING OF COMPETITION.  PP. 597-598. 

(G) ON THE RECORD IN THIS CASE, THE BACKGROUND OF THE ACQUISITION AND
THE PLAIN IMPLICATIONS OF THE CONTEMPORANEOUS DOCUMENTS ELIMINATE ANY
BASIS FOR A CONCLUSION THAT THE PURCHASE WAS MADE "SOLELY FOR
INVESTMENT."  PP. 598-602. 

(H)  THE BULK OF DU PONT'S PRODUCTION OF AUTOMOTIVE FINISHES AND
FABRICS HAS ALWAYS SUPPLIED THE LARGEST PART OF THE REQUIREMENTS OF
GENERAL MOTORS, THE ONE CUSTOMER IN THE AUTOMOBILE INDUSTRY CONNECTED
TO DU PONT BY A STOCK INTEREST; AND THERE IS AN OVERWHELMING INFERENCE
THAT DU PONT'S COMMANDING POSITION WAS PROMOTED BY ITS STOCK INTEREST
AND WAS NOT GAINED SOLELY ON COMPETITIVE MERIT.  PP. 600-605. 

(I)  IT IS NOT REQUISITE TO THE PROOF OF A VIOLATION OF SEC. 7 TO
SHOW THAT RESTRAINT OR MONOPOLY WAS INTENDED.  P. 607. 

UNITED STATES V. E.I. DU PONT DE NEMOURS & CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL UNDER SEC. 2 OF THE EXPEDITING ACT (FN1) FROM
A JUDGMENT OF THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS,
(FN2) DISMISSING THE GOVERNMENT'S ACTION BROUGHT IN 1949 UNDER SEC. 15
OF THE CLAYTON ACT.  (FN3)  THE COMPLAINT ALLEGED A VIOLATION OF SEC. 7
OF THE ACT (FN4) RESULTING FROM THE PURCHASE BY E.I. DU PONT DE NEMOURS
AND COMPANY IN 1917-1919 OF A 23% STOCK INTEREST IN GENERAL MOTORS
CORPORATION.  THIS APPEAL IS FROM THE DISMISSAL OF THE ACTION AS TO DU
PONT, GENERAL MOTORS AND THE CORPORATE HOLDERS OF LARGE AMOUNTS OF DU
PONT STOCK, CHRISTIANA SECURITIES CORPORATION AND DELAWARE REALTY &
INVESTMENT COMPANY.  (FN5) 

THE PRIMARY ISSUE IS WHETHER DU PONT'S COMMANDING POSITION AS GENERAL
MOTORS' SUPPLIER OF AUTOMOTIVE FINISHES AND FABRICS WAS ACHIEVED ON
COMPETITIVE MERIT ALONE, OR BECAUSE ITS ACQUISITION OF THE GENERAL
MOTORS' STOCK, AND THE CONSEQUENT CLOSE INTERCOMPANY RELATIONSHIP, LED
TO THE INSULATION OF MOST OF THE GENERAL MOTORS' MARKET FROM FREE
COMPETITION, WITH THE RESULTANT LIKELIHOOD, AT THE TIME OF THE SUIT, OF
THE CREATION OF A MONOPOLY OF A LINE OF COMMERCE. 

THE FIRST PARAGRAPH OF SEC. 7, PERTINENT HERE, PROVIDES: 

"THAT NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE THE EFFECT OF
SUCH ACQUISITION MAY BE TO SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE
CORPORATION WHOSE STOCK IS SO ACQUIRED AND THE CORPORATION MAKING THE
ACQUISITION, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY,
OR TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE."  (FN6) 

SUBSTANTIAL LESSENING OF COMPETITION FROM THE ACQUISITION BY ONE
CORPORATION OF THE WHOLE OR ANY PART OF THE STOCK OF A COMPETING
CORPORATION, BUT ALSO TO ARREST IN THEIR INCIPIENCY RESTRAINTS OR
MONOPOLIES IN A RELEVANT MARKET WHICH, AS A REASONABLE PROBABILITY,
APPEAR AT THE TIME OF SUIT LIKELY TO RESULT FROM THE ACQUISITION BY ONE
CORPORATION OF ALL OR ANY PART OF THE STOCK OF ANY OTHER CORPORATION. 
THE SECTION IS VIOLATED WHETHER OR NOT ACTUAL RESTRAINTS OR MONOPOLIES,
OR THE SUBSTANTIAL LESSENING OF COMPETITION, HAVE OCCURRED OR ARE
INTENDED.  ACQUISITIONS SOLELY FOR INVESTMENT ARE EXPECTED, BUT ONLY
IF, AND SO LONG AS, THE STOCK IS NOT USED BY VOTING OR OTHERWISE TO
BRING ABOUT, OR IN ATTEMPTING TO BRING ABOUT, THE SUBSTANTIAL LESSENING
OF COMPETITION. 

WE ARE MET AT THE THRESHOLD WITH THE ARGUMENT THAT SEC. 7, BEFORE ITS
AMENDMENT IN 1950, APPLIED ONLY TO AN ACQUISITION OF THE STOCK OF A
COMPETING CORPORATION, AND NOT TO AN ACQUISITION BY A SUPPLIER
CORPORATION OF THE STOCK OF A CUSTOMER CORPORATION - IN OTHER WORDS,
THAT THE STATUTE APPLIED ONLY TO HORIZONTAL AND NOT TO VERTICAL
ACQUISITIONS.  THIS IS THE FIRST CASE PRESENTING THE QUESTION IN THIS
COURT.  INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, 280 U.S. 291,
AND THATCHER MFG. CO. V. FEDERAL TRADE COMM'N, 272 U.S. 554, INVOLVED
CORPORATE ACQUISITIONS OF STOCK OF COMPETITORS. 

DURING THE 35 YEARS BEFORE THIS ACTION WAS BROUGHT, THE GOVERNMENT
DID NOT INVOKE SEC. 7 AGAINST VERTICAL ACQUISITIONS.  THE FEDERAL TRADE
COMMISSION HAS SAID THAT THE SECTION DID NOT APPLY TO VERTICAL
ACQUISITIONS.  SEE F.T.C., REPORT ON CORPORATE MERGERS AND
ACQUISITIONS, 168 (1955), H.R. DOC. NO. 169, 84TH CONG., 1ST SESS.
ALSO, THE HOUSE COMMITTEE CONSIDERING THE 1950 REVISION OF SEC. 7
STATED THAT "  ...  IT HAS BEEN THOUGHT BY SOME THAT THIS LEGISLATION
(THE 1914 ACT) APPLIES ONLY TO THE SO-CALLED HORIZONTAL MERGERS  ...
."  H.R. REP. NO. 1191, 81ST CONG., 1ST SESS. 11.  THE HOUSE REPORT
ADDS, HOWEVER, THAT THE 1950 AMENDMENT WAS PURPOSED "  ...  TO MAKE IT
CLEAR THAT THE BILL APPLIES TO ALL TYPES OF MERGERS AND ACQUISITIONS,
VERTICAL AND CONGLOMERATE AS WELL AS HORIZONTAL  ...  ." 

THIS COURT HAS THE DUTY TO RECONCILE ADMINISTRATIVE INTERPRETATIONS
WITH THE BROAD ANTITRUST POLICIES LAID DOWN BY CONGRESS.  CF. AUTOMATIC
CANTEEN CO. V. FEDERAL TRADE COMM'N, 346 U.S. 61, 74.   THE FAILURE OF
THE COMMISSION TO ACT IS NOT A BINDING ADMINISTRATIVE INTERPRETATION
THAT CONGRESS DID NOT INTEND VERTICAL ACQUISITIONS TO COME WITHIN THE
PURVIEW OF THE ACT.  ACCORD, BALTIMORE & OHIO R. CO. V. JACKSON, 353
U.S. 325, 331. 

THE FIRST PARAGRAPH OF SEC. 7, WRITTEN IN THE DISJUNCTIVE, PLAINLY IS
FRAMED TO REACH NOT ONLY THE CORPORATE ACQUISITION OF STOCK OF A
COMPETING CORPORATION, WHERE THE EFFECT MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION BETWEEN THEM, BUT ALSO THE CORPORATE ACQUISITION OF STOCK
OF ANY CORPORATION, COMPETITOR OR NOT, WHERE THE EFFECT MAY BE EITHER
(1) TO RESTRAIN COMMERCE IN ANY SECTION OR COMMUNITY, OR (2) TEND TO
CREATE A MONOPOLY OF ANY LINE OF COMMERCE.  THE AMENDED COMPLAINT DOES
NOT ALLEGE THAT THE EFFECT OF DU PONT'S ACQUISITION MAY BE TO RESTRAIN
COMMERCE IN ANY SECTION OR COMMUNITY BUT ALLEGES THAT THE EFFECT WAS "
...  TO TEND TO CREATE A MONOPOLY IN PARTICULAR LINES OF COMMERCE  ...
." 

COMPANY'S ACQUISITION OF STOCK IN TWO OR MORE CORPORATIONS.  (FN7)
MUCH OF THE LEGISLATIVE HISTORY OF THE SECTION DEALS WITH THE ALLEGED
HOLDING COMPANY EVIL.  (FN8)  THIS HISTORY DOES NOT AID IN
INTERPRETATION BECAUSE OUR CONCERN HERE IS WITH THE FIRST PARAGRAPH OF
THE SECTION.  THERE IS, HOWEVER, PERTINENT LEGISLATIVE HISTORY WHICH
DOES AID AND SUPPORT OUR CONSTRUCTION. 

SENATOR CHILTON, ONE OF THE SENATE MANAGERS OF THE BILL, EXPLAINED
THAT THE HOUSE CONFEREES INSISTED THAT TO PROHIBIT JUST THE
ACQUISITIONS WHERE THE EFFECT WAS "SUBSTANTIALLY" TO LESSEN COMPETITION
WOULD NOT ACCOMPLISH THE DESIGNED AIM OF THE STATUTE, BECAUSE "A
CORPORATION MIGHT ACQUIRE THE STOCK OF ANOTHER CORPORATION, AND THERE
WOULD BE NO LESSENING OF COMPETITION, BUT THE TENDENCY MIGHT BE TO
CREATE MONOPOLY OR TO RESTRAIN TRADE OR COMMERCE."  "THEREFORE," SAID
SENATOR CHILTON, "THERE WAS ADDED  ...  THE FOLLOWING: 'OR TO RESTRAIN
SUCH COMMERCE IN ANY SECTION OR COMMUNITY OR TEND TO CREATE A MONOPOLY
OF ANY LINE OF COMMERCE.'"  (FN9)  THIS CONSTRUCTION OF THE SECTION, AS
EMBRACING THREE SEPARATE AND DISTINCT EFFECTS OF A STOCK ACQUISITION,
HAS ALSO BEEN RECOGNIZED BY A NUMBER OF FEDERAL COURTS.  (FN10) 

WE HOLD THAT ANY ACQUISITION BY ONE CORPORATION OF ALL OR ANY PART OF
THE STOCK OF ANOTHER CORPORATION, COMPETITOR OR NOT, IS WITHIN THE
REACH OF THE SECTION WHENEVER THE REASONABLE LIKELIHOOD APPEARS THAT
THE ACQUISITION WILL RESULT IN A RESTRAINT OF COMMERCE OR IN THE
CREATION OF A MONOPOLY OF ANY LINE OF COMMERCE.  THUS, ALTHOUGH DU PONT
AND GENERAL MOTORS ARE NOT COMPETITORS, A VIOLATION OF THE SECTION HAS
OCCURRED IF, AS A RESULT OF THE ACQUISITION, THERE WAS AT THE TIME OF
SUIT A REASONABLE LIKELIHOOD OF A MONOPOLY OF ANY LINE OF COMMERCE. 
JUDGE MARIS CORRECTLY STATED IN TRANSAMERICA CORP. V. BOARD OF
GOVERNORS, 206 F.2D 163, 169: 

"A MONOPOLY INVOLVES THE POWER TO  ...  EXCLUDE COMPETITION WHEN THE
MONOPOLIST DESIRES TO DO SO. OBVIOUSLY, UNDER SECTION 7 IT WAS NOT
NECESSARY  ...  TO FIND THAT  ...  (THE DEFENDANT) HAS ACTUALLY
ACHIEVED MONOPOLY POWER BUT MERELY THAT THE STOCK ACQUISITIONS UNDER
ATTACK HAVE BROUGHT IT MEASURABLY CLOSER TO THAT END.  FOR IT IS THE
PURPOSE OF THE CLAYTON ACT TO NIP MONOPOLY IN THE BUD.   SINCE BY
DEFINITION MONOPOLY INVOLVES THE POWER TO ELIMINATE COMPETITION A
LESSENING OF COMPETITION IS CLEARLY RELEVANT IN THE DETERMINATION OF
THE EXISTENCE OF A TENDENCY TO MONOPOLIZE.  ACCORDINGLY IN ORDER TO
DETERMINE THE EXISTENCE OF A TENDENCY TO MONOPOLY IN  ...  ANY  ...
LINE OF BUSINESS THE AREA OR AREAS OF EXISTING EFFECTIVE COMPETITION IN
WHICH MONOPOLY POWER MIGHT BE EXERCISED MUST FIRST BE DETERMINED  ...
." 

APPELLEES ARGUE THAT THERE EXISTS NO BASIS FOR A FINDING OF A
PROBABLE RESTRAINT OR MONOPOLY WITHIN THE MEANING OF SEC. 7 BECAUSE THE
TOTAL GENERAL MOTORS MARKET FOR FINISHES AND FABRICS CONSTITUTED ONLY A
NEGLIGIBLE PERCENTAGE OF THE TOTAL MARKET FOR THESE MATERIALS FOR ALL
USES, INCLUDING AUTOMOTIVE USES.  IT IS STATED IN THE GENERAL MOTORS
BRIEF THAT IN 1947 DU PONT'S FINISH SALES TO GENERAL MOTORS CONSTITUTED
3.5% OF ALL SALES OF FINISHES TO INDUSTRIAL USERS, AND THAT ITS FABRIC
SALES TO GENERAL MOTORS COMPRISED 1.6% OF THE TOTAL MARKET FOR THE TYPE
OF FABRIC USED BY THE AUTOMOBILE INDUSTRY. 

DETERMINATION OF THE RELEVANT MARKET IS A NECESSARY PREDICATE TO A
FINDING OF A VIOLATION OF THE CLAYTON ACT BECAUSE THE THREATENED
MONOPOLY MUST BE ONE WHICH WILL SUBSTANTIALLY LESSEN COMPETITION
"WITHIN THE AREA OF EFFECTIVE COMPETITION."  (FN11)  SUBSTANTIALITY CAN
BE DETERMINED ONLY IN TERMS OF THE MARKET AFFECTED.  THE RECORD SHOWS
THAT AUTOMOTIVE FINISHES AND FABRICS HAVE SUFFICIENT PECULIAR
CHARACTERISTICS AND USES TO CONSTITUTE THEM PRODUCTS SUFFICIENTLY
DISTINCT FROM ALL OTHER FINISHES AND FABRICS (FN12) TO MAKE THEM A
"LINE OF COMMERCE" WITHIN THE MEANING OF THE CLAYTON ACT.   CF. VAN
CAMP & SONS CO. V. AMERICAN CAN CO., 278 U.S. 245.  (FN13)  THUS, THE
BOUNDS OF THE RELEVANT MARKET FOR THE PURPOSES OF THIS CASE ARE NOT
COEXTENSIVE WITH THE TOTAL MARKET FOR FINISHES AND FABRICS, BUT ARE
COEXTENSIVE WITH THE AUTOMOBILE INDUSTRY, THE RELEVANT MARKET FOR
AUTOMOTIVE FINISHES AND FABRICS.  (FN14) 

THE MARKET AFFECTED MUST BE SUBSTANTIAL.  STANDARD FASHION CO. V.
MAGRANE-HOUSTON CO., 258 U.S. 346, 357.  MOREOVER, IN ORDER TO
ESTABLISH A VIOLATION OF SEC. 7 THE GOVERNMENT MUST PROVE A LIKELIHOOD
THAT COMPETITION MAY BE "FORECLOSED IN A SUBSTANTIAL SHARE OF  ...
(THAT MARKET)."  (FN15)  BOTH REQUIREMENTS ARE SATISFIED IN THIS CASE. 
THE SUBSTANTIALITY OF A RELEVANT MARKET COMPRISING THE AUTOMOBILE
INDUSTRY IS UNDISPUTED.  THE SUBSTANTIALITY OF GENERAL MOTORS' SHARE OF
THAT MARKET IS FULLY ESTABLISHED IN THE EVIDENCE. 

GENERAL MOTORS IS THE COLOSSUS OF THE GIANT AUTOMOBILE INDUSTRY.  IT
ACCOUNTS ANNUALLY FOR UPWARDS OF TWO-FIFTHS OF THE TOTAL SALES OF
AUTOMOTIVE VEHICLES IN THE NATION.  (FN16)  IN 1955 GENERAL MOTORS
RANKED FIRST IN SALES AND SECOND IN ASSETS AMONG ALL UNITED STATES
INDUSTRIAL CORPORATIONS (FN17) AND BECAME THE FIRST CORPORATION TO EARN
OVER A BILLION DOLLARS IN ANNUAL NET INCOME.  (FN18)  IN 1947 GENERAL
MOTORS' TOTAL PURCHASES OF ALL PRODUCTS FROM DU PONT WERE $26,628,274,
OF WHICH $18,938,229 (71%) REPRESENTED PURCHASES FROM DU PONT'S
FINISHES DIVISION.  OF THE LATTER AMOUNT PURCHASES OF "DUCO" (FN19) AND
THE THINNER USED TO APPLY "DUCO" TOTALED $12,224,798 (65%), AND "DULUX"
(FN20) PURCHASES TOTALED $3,179,225.  PURCHASES BY GENERAL MOTORS OF DU
PONT FABRICS IN 1948 AMOUNTED TO $3,700,000, MAKING IT THE LARGEST
ACCOUNT OF DU PONT'S FABRICS DIVISION.  EXPRESSED IN PERCENTAGES, DU
PONT SUPPLIED 67% OF GENERAL MOTORS' REQUIREMENTS FOR FINISHES IN 1946
AND 68% IN 1947.  (FN21)  IN FABRICS DU PONT SUPPLIED 52.3% OF
REQUIREMENTS IN 1946, AND 38.5% IN 1947.  (FN22)  BECAUSE GENERAL
MOTORS ACCOUNTS FOR ALMOST ONE-HALF OF THE AUTOMOBILE INDUSTRY'S ANNUAL
SALES, ITS REQUIREMENTS FOR AUTOMOTIVE FINISHES AND FABRICS MUST
REPRESENT APPROXIMATELY ONE-HALF OF THE RELEVANT MARKET FOR THESE
MATERIALS.  BECAUSE THE RECORD CLEARLY SHOWS THAT QUANTITATIVELY AND
PERCENTAGEWISE DU PONT SUPPLIES THE LARGEST PART OF GENERAL MOTORS'
REQUIREMENTS, WE MUST CONCLUDE THAT DU PONT HAS A SUBSTANTIAL SHARE OF
THE RELEVANT MARKET. 

THE APPELLEES ARGUE THAT THE GOVERNMENT COULD NOT MAINTAIN THIS
ACTION IN 1949 BECAUSE SEC. 7 IS APPLICABLE ONLY TO THE ACQUISITION OF
STOCK AND NOT TO THE HOLDING OR SUBSEQUENT USE OF THE STOCK.  THIS
ARGUMENT MISCONCEIVES THE OBJECTIVE TOWARD WHICH SEC. 7 IS DIRECTED. 
THE CLAYTON ACT WAS INTENDED TO SUPPLEMENT THE SHERMAN ACT.  (FN23)
ITS AIM WAS PRIMARILY TO ARREST APPREHENDED CONSEQUENCES OF
INTERCORPORATE RELATIONSHIPS BEFORE THOSE RELATIONSHIPS COULD WORK
THEIR EVIL, WHICH MAY BE AT OR ANY TIME AFTER THE ACQUISITION,
DEPENDING UPON THE CIRCUMSTANCES OF THE PARTICULAR CASE.  THE SENATE
DECLARED THE OBJECTIVE OF THE CLAYTON ACT TO BE AS FOLLOWS: 

"  ...  BROADLY STATED, THE BILL, IN ITS TREATMENT OF UNLAWFUL
RESTRAINTS AND MONOPOLIES, SEEKS TO PROHIBIT AND MAKE UNLAWFUL CERTAIN
TRADE PRACTICES WHICH, AS A RULE, SINGLY AND IN THEMSELVES, ARE NOT
COVERED BY THE ACT OF JULY 2, 1890 (THE SHERMAN ACT), OR OTHER EXISTING
ANTITRUST ACTS, AND THUS, BY MAKING THESE PRACTICES ILLEGAL, TO ARREST
THE CREATION OF TRUSTS, CONSPIRACIES, AND MONOPOLIES IN THEIR
INCIPIENCY AND BEFORE CONSUMMATION  ...  ."  S. REP. NO. 698, 63D
CONG., 2D SESS. 1. 

"INCIPIENCY" IN THIS CONTEXT DENOTES NOT THE TIME THE STOCK WAS
ACQUIRED, BUT ANY TIME WHEN THE ACQUISITION THREATENS TO RIPEN INTO A
PROHIBITED EFFECT.  SEE TRANSAMERICA CORP. V. BOARD OF GOVERNORS, 206
F.2D 163, 166.  TO ACCOMPLISH THE CONGRESSIONAL AIM, THE GOVERNMENT MAY
PROCEED AT ANY TIME THAT AN ACQUISITION MAY BE SAID WITH REASONABLE
PROBABILITY TO CONTAIN A THREAT THAT IT MAY LEAD TO A RESTRAINT OF
COMMERCE OR TEND TO CREATE A MONOPOLY OF A LINE OF COMMERCE.  (FN24)
EVEN WHEN THE PURCHASE IS SOLELY FOR INVESTMENT, THE PLAIN LANGUAGE OF
SEC. 7 CONTEMPLATES AN ACTION AT ANY TIME THE STOCK IS USED TO BRING
ABOUT, OR IN ATTEMPTING TO BRING ABOUT, THE SUBSTANTIAL LESSENING OF
COMPETITION.  (FN25)    PRIOR CASES UNDER SEC. 7 WERE BROUGHT AT OR
NEAR THE TIME OF ACQUISITION.  SEE, E.G., INTERNATIONAL SHOE CO. V.
FEDERAL TRADE COMM'N, 280 U.S. 291; V. VIVAUDOU, INC. V. FEDERAL TRADE
COMM'N, 54 F.2D 273; FEDERAL TRADE COMM'N V. THATCHER MFG. CO., 5 F.2D
615, REV'D IN PART ON ANOTHER GROUND, 272 U.S. 554; UNITED STATES V.
REPUBLIC STEEL CORP., 11 F. SUPP.  117; IN RE VANADIUM-ALLOYS STEEL
CO., 18 F.T.C. 194.  NONE OF THESE CASES HOLDS, OR EVEN SUGGESTS, THAT
THE GOVERNMENT IS FORECLOSED FROM BRINGING THE ACTION AT ANY TIME WHEN
A THREAT OF THE PROHIBITED EFFECTS IS EVIDENT. 

RELATED TO THIS ARGUMENT IS THE DISTRICT COURT'S CONCLUSION THAT 30
YEARS OF NONRESTRAINT NEGATED "ANY REASONABLE PROBABILITY OF SUCH A
RESTRAINT" AT THE TIME OF THE SUIT.  (FN26)  WHILE IT IS, OF COURSE,
TRUE THAT PROOF OF A MERE POSSIBILITY OF A PROHIBITED RESTRAINT OR
TENDENCY TO MONOPOLY WILL NOT ESTABLISH THE STATUTORY REQUIREMENT THAT
THE EFFECT OF AN ACQUISITION "MAY BE" SUCH RESTRAINT OR TENDENCY,
(FN27) THE BASIC FACTS FOUND BY THE DISTRICT COURT DEMONSTRATE THE
ERROR OF ITS CONCLUSION.  (FN28) 

THE DU PONT COMPANY'S COMMANDING POSITION AS A GENERAL MOTORS
SUPPLIER WAS NOT ACHIEVED UNTIL SHORTLY AFTER ITS PURCHASE OF A SIZABLE
BLOCK OF GENERAL MOTORS STOCK IN 1917.  (FN29)  AT THAT TIME ITS
PRODUCTION FOR THE AUTOMOBILE INDUSTRY AND ITS SALES TO GENERAL MOTORS
WERE RELATIVELY INSIGNIFICANT.  GENERAL MOTORS THEN PRODUCED ONLY ABOUT
11% OF THE TOTAL AUTOMOBILE PRODUCTION AND ITS REQUIREMENTS, WHILE
RELATIVELY SUBSTANTIAL, WERE FAR SHORT OF THE PROPORTIONS THEY ASSUMED
AS IT FORGED AHEAD TO ITS PRESENT PLACE IN THE INDUSTRY. 

AT LEAST 10 YEARS BEFORE THE STOCK ACQUISITION, THE DU PONT COMPANY,
FOR OVER A CENTURY THE MANUFACTURER OF MILITARY AND COMMERCIAL
EXPLOSIVES, HAD DECIDED TO EXPAND ITS BUSINESS INTO OTHER FIELDS.  IT
FORESAW THE LOSS OF ITS MARKET FOR EXPLOSIVES AFTER THE UNITED STATES
ARMY AND NAVY DECIDED IN 1908 TO CONSTRUCT AND OPERATE THEIR OWN
PLANTS.  NITROCELLULOSE, A NITRATED COTTON, WAS THE PRINCIPAL RAW
MATERIAL USED IN DU PONT'S MANUFACTURE OF SMOKELESS POWDER.  A SEARCH
FOR OUTLETS FOR THIS RAW MATERIAL UNCOVERED REQUIREMENTS IN THE
MANUFACTURE OF LACQUERS, CELLULOID, ARTIFICIAL LEATHER AND ARTIFICIAL
SILK.  THE FIRST STEP TAKEN WAS THE DU PONT PURCHASE IN 1910 OF THE
FABRIKOID COMPANY, THEN THE LARGEST MANUFACTURER OF ARTIFICIAL LEATHER,
RECONSTITUTED AS THE DU PONT FABRIKOID COMPANY IN 1913. 

THE EXPANSION PROGRAM WAS BARELY STARTED, HOWEVER, WHEN WORLD WAR I
INTERVENED.  THE DU PONT COMPANY SUDDENLY FOUND ITSELF ENGULFED WITH
ORDERS FOR MILITARY EXPLOSIVES FROM FOREIGN NATIONS LATER TO BE ALLIES
OF THE UNITED STATES IN THE WAR, AND IT HAD TO INCREASE ITS CAPACITY
AND PLANT FACILITIES FROM 700,000 TO 37,000,000 POUNDS PER MONTH AT A
COST EXCEEDING $200,000,000.  PROFITS ACCUMULATED AND ULTIMATELY
AMOUNTED TO $232,000,000.  THE NEED TO FIND POSTWAR USES FOR ITS
EXPANDED FACILITIES AND ORGANIZATION NOW BEING GREATER THAN EVER, DU
PONT CONTINUED ITS EXPANSION PROGRAM DURING THE WAR YEARS, SETTING
ASIDE $90,000,000 FOR THE PURPOSE.  IN SEPTEMBER 1915, DU PONT BOUGHT
THE ARLINGTON WORKS, ONE OF THE NATION'S TWO LARGEST CELLULOID
COMPANIES.  IN JUNE 1916, THE FAIRFIELD RUBBER COMPANY, PRODUCERS OF
RUBBER-COATED FABRICS FOR AUTOMOBILE AND CARRIAGE TOPS, WAS TAKEN OVER
BY DU PONT FABRIKOID.  IN MARCH 1917, PURCHASE WAS MADE OF HARRISON
BROTHERS AND COMPANY, MANUFACTURERS OF PAINT, VARNISH, ACIDS AND
CERTAIN INORGANIC CHEMICALS USED IN PAINT MANUFACTURE.  SHORTLY
AFTERWARDS, HARRISON ABSORBED BECKTON CHEMICAL COMPANY, A COLOR
MANUFACTURER, AND, ALSO IN 1917, THE BRIDGEPORT WOOD FINISHING COMPANY,
A VARNISH MANUFACTURER. 

THUS, BEFORE THE FIRST BLOCK OF GENERAL MOTORS STOCK WAS ACQUIRED, DU
PONT WAS SEEKING MARKETS NOT ONLY FOR ITS NITROCELLULOSE, BUT ALSO FOR
THE ARTIFICIAL LEATHER, CELLULOID, RUBBER-COATED GOODS, AND PAINTS AND
VARNISHES IN DEMAND BY AUTOMOBILE COMPANIES.  IN THAT CONNECTION, THE
TRIAL COURT EXPRESSLY FOUND THAT "  ...  REPORTS AND OTHER DOCUMENTS
WRITTEN AT OR NEAR THE TIME OF THE INVESTMENT SHOW THAT DU PONT'S
REPRESENTATIVES WERE WELL AWARE THAT GENERAL MOTORS WAS A LARGE
CONSUMER OF PRODUCTS OF THE KIND OFFERED BY DU PONT," AND THAT JOHN J.
RASKOB, DU PONT'S TREASURER AND THE PRINCIPAL PROMOTER OF THE
INVESTMENT, "FOR ONE, THOUGHT THAT DU PONT WOULD ULTIMATELY GET ALL
THAT BUSINESS  ...  ."  (FN30) 

THE COMPANY'S INTEREST IN BUYING INTO GENERAL MOTORS WAS STIMULATED
BY RASKOB AND PIERRE S. DU PONT, THEN DU PONT'S PRESIDENT, WHO ACQUIRED
PERSONAL HOLDINGS OF GENERAL MOTORS STOCK IN 1914.  GENERAL MOTORS WAS
ORGANIZED SIX YEARS EARLIER BY WILLIAM C. DURANT TO ACQUIRE PREVIOUSLY
INDEPENDENT AUTOMOBILE MANUFACTURING COMPANIES - BUICK, CADILLAC,
OAKLAND AND OLDSMOBILE.  DURANT LATER BROUGHT IN CHEVROLET, ORGANIZED
BY HIM WHEN HE WAS TEMPORARILY OUT OF POWER, DURING 1910-1915, AND A
BANKERS' GROUP CONTROLLED GENERAL MOTORS.  IN 1915, WHEN DURANT AND THE
BANKERS DEADLOCKED ON THE CHOICE OF A BOARD OF DIRECTORS, THEY RESOLVED
THE DEADLOCK BY AN AGREEMENT UNDER WHICH PIERRE S. DU PONT WAS NAMED
CHAIRMAN OF THE GENERAL MOTORS BOARD, AND PIERRE S. DU PONT, RASKOB AND
TWO NOMINEES OF MR. DU PONT WERE NAMED NEUTRAL DIRECTORS.  BY 1916,
DURANT SETTLED HIS DIFFERENCES WITH THE BANKERS AND RESUMED THE
PRESIDENCY AND HIS CONTROLLING POSITION IN GENERAL MOTORS.  HE
PREVAILED UPON PIERRE S. DU PONT AND RASKOB TO CONTINUE THEIR INTEREST
IN GENERAL MOTORS' AFFAIRS, WHICH BOTH DID AS MEMBERS OF THE FINANCE
COMMITTEE, WORKING CLOSELY WITH DURANT IN MATTERS OF FINANCES AND
OPERATIONS AND PLANS FOR FUTURE EXPANSION.  DURANT PERSISTENTLY URGED
BOTH MEN AND THE "WILMINGTON PEOPLE, AS HE CALLED IT," (FN31) TO BUY
MORE STOCK IN GENERAL MOTORS. 

FINALLY, RASKOB BROACHED TO PIERRE S. DU PONT THE PROPOSAL THAT PART
OF THE FUND EARMARKED FOR DU PONT EXPANSION BE USED IN THE PURCHASE OF
GENERAL MOTORS STOCK.  AT THIS TIME ABOUT $50,000,000 OF THE
$90,000,000 FUND WAS STILL IN HAND.  RASKOB FORESAW THE SUCCESS OF THE
AUTOMOBILE INDUSTRY AND THE OPPORTUNITY FOR GREAT PROFIT IN A
SUBSTANTIAL PURCHASE OF GENERAL MOTORS STOCK.  ON DECEMBER 19, 1917,
RASKOB SUBMITTED A TREASURER'S REPORT TO THE DU PONT FINANCE COMMITTEE
RECOMMENDING A PURCHASE OF GENERAL MOTORS STOCK IN THE AMOUNT OF
$25,000,000.  THAT REPORT MAKES CLEAR THAT MORE THAN JUST A PROFITABLE
INVESTMENT WAS CONTEMPLATED.  A MAJOR CONSIDERATION WAS THAT AN
EXPANDING GENERAL MOTORS WOULD PROVIDE A SUBSTANTIAL MARKET NEEDED BY
THE BURGEONING DU PONT ORGANIZATION.  RASKOB'S SUMMARY OF REASONS IN
SUPPORT OF THE PURCHASE INCLUDES THIS STATEMENT:  "OUR INTEREST IN THE
GENERAL MOTORS COMPANY WILL UNDOUBTEDLY SECURE FOR US THE ENTIRE
FABRIKOID, PYRALIN (CELLULOID), PAINT AND VARNISH BUSINESS OF THOSE
COMPANIES, WHICH IS A SUBSTANTIAL FACTOR."  (FN32) 

THIS THOUGHT, THAT THE PURCHASE WOULD RESULT IN DU PONT'S OBTAINING A
NEW AND SUBSTANTIAL MARKET, WAS ECHOED IN THE COMPANY'S 1917 AND 1918
ANNUAL REPORTS TO STOCKHOLDERS.  IN THE 1917 REPORT APPEARS:  "THOUGH
THIS IS A NEW LINE OF ACTIVITY, IT IS ONE OF GREAT PROMISE AND ONE THAT
SEEMS TO BE WELL SUITED TO THE CHARACTER OF OUR ORGANIZATION.  THE
MOTOR COMPANIES ARE VERY LARGE CONSUMERS OF OUR FABRIKOID AND PYRALIN
AS WELL AS PAINTS AND VARNISHES."  THE 1918 REPORT SAYS:  "THE
CONSUMPTION OF PAINTS, VARNISHES AND FABRIKOID IN THE MANUFACTURE OF
AUTOMOBILES GIVES ANOTHER COMMON INTEREST." 

THIS BACKGROUND OF THE ACQUISITION, PARTICULARLY THE PLAIN
IMPLICATIONS OF THE CONTEMPORANEOUS DOCUMENTS, DESTROYS ANY BASIS FOR A
CONCLUSION THAT THE PURCHASE WAS MADE "SOLELY FOR INVESTMENT." 
MOREOVER, IMMEDIATELY AFTER THE ACQUISITION, DU PONT'S INFLUENCE
GROWING OUT OF IT WAS BROUGHT TO BEAR WITHIN GENERAL MOTORS TO ACHIEVE
PRIMACY FOR DU PONT AS GENERAL MOTORS' SUPPLIER OF AUTOMOTIVE FABRICS
AND FINISHES. 

TWO YEARS WERE TO PASS BEFORE DU PONT'S TOTAL PURCHASES OF GENERAL
MOTORS STOCK BROUGHT ITS PERCENTAGE TO 23% OF THE OUTSTANDING STOCK AND
ITS AGGREGATE OUTLAY TO $49,000,000.  DURING THAT PERIOD, DU PONT AND
DURANT WORKED UNDER AN ARRANGEMENT GIVING DU PONT PRIMARY
RESPONSIBILITY FOR FINANCES AND DURANT THE RESPONSIBILITY FOR
OPERATIONS.  BUT J.A. HASKELL, DU PONT'S FORMER SALES MANAGER AND VICE
PRESIDENT, BECAME THE GENERAL MOTORS VICE-PRESIDENT IN CHARGE OF THE
OPERATIONS COMMITTEE.  THE TRIAL JUDGE SAID THAT HASKELL "  ...  WAS
WILLING TO UNDERTAKE THE RESPONSIBILITY OF KEEPING DU PONT INFORMED OF
GENERAL MOTORS AFFAIRS DURING DURANT'S REGIME  ...  ."  (FN33) 

HASKELL FRANKLY AND OPENLY SET ABOUT GAINING THE MAXIMUM SHARE OF THE
GENERAL MOTORS MARKET FOR DU PONT.  IN A CONTEMPORANEOUS 1918 DOCUMENT,
HE REVEALS HIS INTENTION TO "PAVE THE WAY FOR PERHAPS A MORE GENERAL
ADOPTION OF OUR MATERIAL," AND THAT HE WAS THINKING "HOW BEST TO GET
COOPERATION (FROM THE SEVERAL GENERAL MOTORS DIVISIONS) WHEREBY MAKERS
OF SUCH OF THE LOW PRICED CARS AS IT WOULD SEEM POSSIBLE AND WISE TO
GET TRANSFERRED WILL BE PUT IN THE FRAME OF MIND NECESSARY FOR ITS
ADOPTION (DU PONT'S ARTIFICIAL LEATHER)." 

HASKELL SET UP LINES OF COMMUNICATION WITHIN GENERAL MOTORS TO BE IN
A POSITION TO KNOW AT ALL TIMES WHAT DU PONT PRODUCTS AND WHAT PRODUCTS
OF DU PONT COMPETITORS WERE BEING USED.  IT IS NOT PURE IMAGINATION TO
SUPPOSE THAT SUCH SURVEILLANCE FROM THAT SOURCE MADE AN IMPRESSIVE
IMPACT UPON PURCHASING OFFICIALS.  IT WOULD BE UNDERSTANDABLY DIFFICULT
FOR THEM NOT TO INTERPRET IT AS MEANING THAT A PREFERENCE WAS TO BE
GIVEN TO DU PONT PRODUCTS.  HASKELL ALSO ACTIVELY PUSHED THE PROGRAM TO
SUBSTITUTE FABRIKOID ARTIFICIAL LEATHERS FOR GENUINE LEATHER AND
SPONSORED USE OF DU PONT'S PYRALIN SHEETING THROUGH A LIAISON
ARRANGEMENT SET UP BETWEEN HIMSELF AND THE DU PONT SALES ORGANIZATION. 

THUS SPRUNG FROM THE BARRIER, DU PONT QUICKLY SWEPT INTO A COMMANDING
LEAD OVER ITS COMPETITORS, WHO WERE NEVER AFTERWARDS IN SERIOUS
CONTENTION.  INDEED, GENERAL MOTORS' THEN PRINCIPAL PAINT SUPPLIER,
FLINT VARNISH AND CHEMICAL WORKS, EARLY IN 1918 SAW THE HANDWRITING ON
THE WALL.  THE FLINT PRESIDENT CAME TO DURANT ASKING TO BE BOUGHT OUT,
TELLING DURANT, AS THE TRIAL JUDGE FOUND, THAT HE "KNEW DU PONT HAD
BOUGHT A SUBSTANTIAL INTEREST IN GENERAL MOTORS AND WAS INTERESTED IN
THE PAINT INDUSTRY; THAT  ...  (HE) FELT HE WOULD LOSE A VALUABLE
CUSTOMER, GENERAL MOTORS."  (FN34) THE DU PONT COMPANY BOUGHT THE FLINT
WORKS AND LATER DISSOLVED IT. 

IN LESS THAN FOUR YEARS, BY AUGUST 1921, LAMMOT DU PONT, THEN A DU
PONT VICE-PRESIDENT AND LATER CHAIRMAN OF THE BOARD OF GENERAL MOTORS,
IN RESPONSE TO A QUERY FROM PIERRE S. DU PONT, THEN CHAIRMAN OF THE
BOARD OF BOTH DU PONT AND GENERAL MOTORS, "WHETHER GENEAL MOTORS WAS
TAKING ITS ENTIRE REQUIREMENTS OF DU PONT PRODUCTS FROM DU PONT, " WAS
ABLE TO REPLY THAT FOUR OF GENERAL MOTORS' EIGHT OPERATING DIVISIONS
BOUGHT FROM DU PONT THEIR ENTIRE REQUIREMENTS OF PAINTS AND VARNISHES,
FIVE THEIR ENTIRE REQUIREMENTS OF FABRIKOID, FOUR THEIR ENTIRE
REQUIREMENTS OF RUBBER CLOTH, AND SEVEN THEIR ENTIRE REQUIREMENTS OF
PYRALIN AND CELLULOID.  LAMMOT DU PONT QUOTED DU PONT'S SALES
DEPARTMENT AS FEELING THAT "THE CONDITION IS IMPROVING AND THAT
EVENTUALLY SATISFACTORY CONDITIONS WILL BE ESTABLISHED IN EVERY BRANCH,
BUT THEY WOULDN'T MIND SEEING THINGS GOING A LITTLE FASTER."  PIERRE S.
DU PONT RESPONDED THAT "WITH THE CHANGE IN MANAGEMENT AT CADILLAC,
OAKLAND AND OLDS (CADILLAC WAS TAKING VERY LITTLE PAINTS AND VARNISHES,
AND OAKLAND BUT 50%; OLDS WAS TAKING ONLY PART OF ITS REQUIREMENTS FOR
FABRIKOID), I BELIEVE THAT YOU SHOULD BE ABLE TO SELL SUBSTANTIALLY ALL
OF THE PAINT, VARNISH AND FABRIKOID PRODUCTS NEEDED."  HE ALSO
SUGGESTED THAT "A DRIVE SHOULD BE MADE FOR THE FISHER BODY BUSINESS. 
IS THERE ANY REASON WHY THEY HAVE NOT DEALT WITH US?" 

FISHER BODY WAS STUBBORNLY RESISTANT TO DU PONT SALES PRESSURE. 
GENERAL MOTORS, IN 1920, DURING DURANT'S TIME, ACQUIRED 60% STOCK
CONTROL OF FISHER BODY COMPANY.  HOWEVER, A VOTING TRUST WAS
ESTABLISHED GIVING THE FISHER BROTHERS BROAD POWERS OF MANAGEMENT. 
THEY INSISTED ON RUNNING THEIR OWN SHOW AND FOR YEARS WITHSTOOD EFFORTS
OF HIGH-RANKING DU PONT AND GENERAL MOTORS EXECUTIVES TO GET THEM TO
SWITCH TO DU PONT FROM THEIR ACCUSTOMED SOURCES OF SUPPLY.  EVEN AFTER
GENERAL MOTORS OBTAINED 100% STOCK CONTROL IN 1926, THE FISHER BROTHERS
RETAINED SUFFICIENT POWER TO HOLD OUT.  BY 1947 AND 1948, HOWEVER,
FISHER RESISTANCE HAD COLLAPSED, AND THE PROPORTIONS OF ITS
REQUIREMENTS SUPPLIED BY DU PONT COMPARED FAVORABLY WITH THE PURCHASES
BY OTHER GENERAL MOTORS DIVISIONS. 

IN 1926, THE DU PONT OFFICIALS FELT THAT TOO MUCH GENERAL MOTORS
BUSINESS WAS GOING TO ITS COMPETITORS.  WHEN PIERRE S. DU PONT AND
RASKOB EXPRESSED SURPRISE, LAMMOT DU PONT GAVE THEM A BREAKDOWN, BY
DOLLAR AMOUNTS, OF THE PURCHASES MADE FROM DU PONT'S COMPETITORS.  THIS
BREAKDOWN SHOWED, HOWEVER, THAT ONLY FISHER BODY OF THE GENERAL MOTORS
DIVISIONS WAS OBTAINING ANY SUBSTANTIAL PROPORTION OF ITS REQUIREMENTS
FROM DU PONT'S COMPETITORS. 

COMPETITORS DID OBTAIN HIGHER PERCENTAGES OF THE GENERAL MOTORS
BUSINESS IN LATER YEARS, ALTHOUGH NEVER HIGH ENOUGH AT ANY TIME
SUBSTANTIALLY TO AFFECT THE DOLLAR AMOUNT OF DU PONT'S SALES.  INDEED,
IT APPEARS LIKELY THAT GENERAL MOTORS PROBABLY TURNED TO OUTSIDE
SOURCES OF SUPPLY AT LEAST IN PART BECAUSE ITS REQUIREMENTS OUTSTRIPPED
DU PONT'S PRODUCTION, WHEN GENERAL MOTORS' PROPORTION OF TOTAL
AUTOMOBILE SALES GREW GREATER AND THE COMPANY TOOK ITS PLACE AS THE
SALES LEADER OF THE AUTOMOBILE INDUSTRY.  FOR EXAMPLE, AN UNDISPUTED
GOVERNMENT EXHIBIT SHOWS THAT GENERAL MOTORS TOOK 93% OF DU PONT'S
AUTOMOBILE DUCO PRODUCTION IN 1941 AND 83% IN 1947.    THE FACT THAT
STICKS OUT IN THIS VOLUMINOUS RECORD IS THAT THE BULK OF DU PONT'S
PRODUCTION HAS ALWAYS SUPPLIED THE LARGEST PART OF THE REQUIREMENTS OF
THE ONE CUSTOMER IN THE AUTOMOBILE INDUSTRY CONNECTED TO DU PONT BY A
STOCK INTEREST.  THE INFERENCE IS OVERWHELMING THAT DU PONT'S
COMMANDING POSITION WAS PROMOTED BY ITS STOCK INTEREST AND WAS NOT
GAINED SOLELY ON COMPETITIVE MERIT. 

WE AGREE WITH THE TRIAL COURT THAT CONSIDERATIONS OF PRICE, QUALITY
AND SERVICE WERE NOT OVERLOOKED BY EITHER DU PONT OR GENERAL MOTORS. 
PRIDE IN ITS PRODUCTS AND ITS HIGH FINANCIAL STAKE IN GENERAL MOTORS'
SUCCESS WOULD NATURALLY LEAD DU PONT TO TRY TO SUPPLY THE BEST.  BUT
THE WISDOM OF THIS BUSINESS JUDGMENT CANNOT OBSCURE THE FACT, PLAINLY
REVEALED BY THE RECORD, THAT DU PONT PURPOSELY EMPLOYED ITS STOCK TO
PRY OPEN THE GENERAL MOTORS MARKET TO ENTRENCH ITSELF AS THE PRIMARY
SUPPLIER OF GENERAL MOTORS' REQUIREMENTS FOR AUTOMOTIVE FINISHES AND
FABRICS.  (FN35) 

SIMILARLY, THE FACT THAT ALL CONCERNED IN HIGH EXECUTIVE POSTS IN
BOTH COMPANIES ACTED HONORABLY AND FAIRLY, EACH IN THE HONEST
CONVICTION THAT HIS ACTIONS WERE IN THE BEST INTERESTS OF HIS OWN
COMPANY AND WITHOUT ANY DESIGN TO OVERREACH ANYONE, INCLUDING DU PONT'S
COMPETITORS, DOES NOT DEFEAT THE GOVERNMENT'S RIGHT TO RELIEF.  IT IS
NOT REQUISITE TO THE PROOF OF A VIOLATION OF SEC. 7 TO SHOW THAT
RESTRAINT OR MONOPOLY WAS INTENDED. 

THE STATUTORY POLICY OF FOSTERING FREE COMPETITION IS OBVIOUSLY
FURTHERED WHEN NO SUPPLIER HAS AN ADVANTAGE OVER HIS COMPETITORS FROM
AN ACQUISITION OF HIS CUSTOMER'S STOCK LIKELY TO HAVE THE EFFECTS
CONDEMNED BY THE STATUTE.  WE REPEAT, THAT THE TEST OF A VIOLATION OF
SEC. 7 IS WHETHER, AT THE TIME OF SUIT, THERE IS A REASONABLE
PROBABILITY THAT THE ACQUISITION IS LIKELY TO RESULT IN THE CONDEMNED
RESTRAINTS.  THE CONCLUSION UPON THIS RECORD IS INESCAPABLE THAT SUCH
LIKELIHOOD WAS PROVED AS TO THIS ACQUISITION.  THE FIRE THAT WAS
KINDLED IN 1917 CONTINUES TO SMOLDER.  IT BURNED BRISKLY TO FORGE THE
TIES THAT BIND THE GENERAL MOTORS MARKET TO DU PONT, AND IF IT HAS
QUIETED DOWN, IT REMAINS HOT, AND, FROM PAST PERFORMANCE, IS LIKELY AT
ANY TIME TO BLAZE AND MAKE THE FUSION COMPLETE.  (FN36) 

THE JUDGMENT MUST THEREFORE BE REVERSED AND THE CAUSE REMANDED TO THE
DISTRICT COURT FOR A DETERMINATION, AFTER FURTHER HEARING, OF THE
EQUITABLE RELIEF NECESSARY AND APPROPRIATE IN THE PUBLIC INTEREST TO
ELIMINATE THE EFFECTS OF THE ACQUISITION OFFENSIVE TO THE STATUTE.  THE
DISTRICT COURTS, IN THE FRAMING OF EQUITABLE DECREES, ARE CLOTHED "WITH
LARGE DISCRETION TO MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE
PARTICULAR CASE."  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392, 400-401. 

THE MOTION OF THE APPELLEES CHRISTIANA SECURITIES COMPANY AND
DELAWARE REALTY AND INVESTMENT COMPANY FOR DISMISSAL OF THE APPEAL AS
TO THEM IS DENIED.  IT SEEMS APPROPRIATE THAT THEY BE RETAINED AS
PARTIES PENDING DETERMINATION BY THE DISTRICT COURT OF THE RELIEF TO BE
GRANTED.  IT IS SO ORDERED. 

FN1  32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29.  THE COURT NOTED
PROBABLE JURISDICTION.  350 U.S. 815. 

FN2  126 F. SUPP. 235. 

FN3  38 STAT. 736, 15 U.S.C. (1946 ED.)  SEC.  25. 

FN4  THIS ACTION IS GOVERNED BY THE CLAYTON ACT AS IT WAS BEFORE THE
1950 AMENDMENTS, WHICH BY THEIR TERMS ARE INAPPLICABLE TO ACQUISITIONS
PRIOR TO 1950.  64 STAT. 1125, 15 U.S.C. SEC. 18. 

FN5  THE AMENDED COMPLAINT ALSO ALLEGED VIOLATION OF SECS. 1 AND 2 OF
THE SHERMAN ACT.  26 STAT. 209, AS AMENDED, 50 STAT. 693, 15 U.S.C.
SECS. 1, 2.  IN VIEW OF OUR DETERMINATION OF THE CASE, WE ARE NOT
DECIDING THE GOVERNMENT'S APPEAL FROM THE DISMISSAL OF THE ACTION UNDER
THE SHERMAN ACT. 

FN6  38 STAT. 731, 15 U.S.C. (1946 ED.)  SEC.  18. 

FN7  THIS PARAGRAPH PROVIDES: 

"NO CORPORATION SHALL ACQUIRE, DIRECTLY OR INDIRECTLY, THE WHOLE OR
ANY PART OF THE STOCK OR OTHER SHARE CAPITAL OF TWO OR MORE
CORPORATIONS ENGAGED IN COMMERCE WHERE THE EFFECT OF SUCH ACQUISITION,
OR THE USE OF SUCH STOCK BY THE VOTING OR GRANTING OF PROXIES OR
OTHERWISE, MAY BE TO SUBSTANTIALLY LESSEN COMPETITION BETWEEN SUCH
CORPORATIONS, OR ANY OF THEM, WHOSE STOCK OR OTHER SHARE CAPITAL IS SO
ACQUIRED, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY, OR
TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE."  38 STAT. 731, 15
U.S.C. (1946 ED.)  SEC.  18. 

FN8  SEE, E.G., S. REP. NO. 698, 63D CONG., 2D SESS. 13; H.R. REP.
NO. 627, 63D CONG., 2D SESS. 17. 

FN9  51 CONG. REC. 16002. 

FN10  ALUMINUM CO. OF AMERICA V. FEDERAL TRADE COMM'N, 284 F. 401;
RONALD FABRICS CO. V. VERNEY BRUNSWICK MILLS, INC., CCH TRADE CASES
PARA. 57,514 (D.C.S.D.N.Y. 1946); UNITED STATES V. NEW ENGLAND FISH
EXCHANGE, 258 F. 732; CF. TRANSAMERICA CORP. V. BOARD OF GOVERNORS, 206
F.2D 163; SIDNEY MORRIS & CO. V. NATIONAL ASSN. OF STATIONERS, 40 F.2D
620, 625. 

FN11  STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, 337 U.S. 293,
299, N. 5.  SECTION 3 OF THE ACT, WITH WHICH THE COURT WAS CONCERNED IN
STANDARD OIL, MAKES UNLAWFUL CERTAIN AGREEMENTS "  ... WHERE THE EFFECT
...  MAY BE TO SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A
MONOPOLY IN ANY LINE OF COMMERCE."  38 STAT. 731, 15 U.S.C. (1946 ED.) 
SEC.  14. 

FN12  FOR EXAMPLE, THE FOLLOWING IS SAID AS TO FINISHES IN THE DU
PONT BRIEF: 

"THE LARGEST SINGLE FINISH ITEM WHICH DU PONT SELLS TO GENERAL MOTORS
IS A LOW-VISCOSITY NITROCELLULOSE LACQUER, DISCOVERED AND PATENTED BY
DU PONT AND FOR WHICH ITS TRADEMARK IS 'DUCO' ...  . 

     *         *         *     *         * 

"THE INVENTION AND DEVELOPMENT OF 'DUCO' REPRESENTED A TRULY
SIGNIFICANT ADVANCE IN THE ART OF PAINT MAKING AND IN THE PRODUCTION OF
AUTOMOBILES; WITHOUT 'DUCO' MASS PRODUCTION OF AUTOMOBILES WOULD NOT
HAVE BEEN POSSIBLE. 

"BY THE EARLY 1920'S THE NEED FOR BETTER FINISHING MATERIALS FOR
AUTOMOBILES HAD BECOME URGENT ...  .  THE VARNISH METHOD THEN USED IN
FINISHING AUTOMOBILES WAS DESCRIBED IN DETAIL AT THE TRIAL BY
AUTOMOBILE PIONEERS  ...  .  FINISHING AN AUTOMOBILE WITH VARNISH
REQUIRED AN INTOLERABLY LONG TIME - UP TO 3 OR 4 WEEKS - TO APPLY THE
NUMEROUS COATS NEEDED.  WHEN THE FINISH WAS COMPLETE, ITS LONGEST LIFE
EXPECTANCY WAS LESS THAN A YEAR, AND OFTEN IT BEGAN TO PEEL OFF BEFORE
THE CAR WAS DELIVERED  ...  ." 

DU PONT'S DIRECTOR OF SALES SINCE 1944, NICKOWITZ, TESTIFIED AS TO
FABRICS SOLD TO AUTOMOBILE MANUFACTURERS AS FOLLOWS: 

"Q.  NOW, OVER THE YEARS, ISN'T IT TRUE THAT SPEAKING GENERALLY DU
PONT HAS FOLLOWED THE POLICY IN SELLING ITS FABRICS TO THE AUTOMOBILE
FIELD OF UNDERCUTTING ITS COMPETITORS IN PRICE?  YOU DON'T TRY TO SELL
IT ON A LOWER PRICE THAN THAT QUOTED BY ANY OTHER COMPETITOR, DO YOU? 

"A.  WELL, WE DON'T KNOW.  WE GO IN AND WE BID BASED ON OUR COSTS. 
NOW, IN THE AUTOMOTIVE INDUSTRY, WE HAVE A DIFFERENT SITUATION THAN YOU
DO IN THE FURNITURE TRADE, FOR EXAMPLE, WHERE YOU HAVE AN ESTABLISHED
PRICE. 

"YOU SEE, IN THE AUTOMOBILE INDUSTRY, EACH MANUFACTURER USES A
DIFFERENT CONSTRUCTION.  THEY ALL HAVE THEIR OWN PECULIAR IDEAS OF WHAT
THEY WANT ABOUT THESE FABRICS.  SOME WANT DYED BACKS, AND SOME WANT
DIFFERENT FINISHES, SO YOU DON'T HAVE ANY STANDARD PRICES IN THE
AUTOMOBILE INDUSTRY." 

AND SEE EXTENDED DISCUSSIONS IN THE OPINION OF THE TRIAL COURT, AS TO
FINISHES, 126 F. SUPP., AT 288-292, AS TO FABRICS, ID., AT 296-300. 

FN13  "THE PHRASE 'IN ANY LINE OF COMMERCE' IS COMPREHENSIVE AND
MEANS THAT IF THE FORBIDDEN EFFECT OR TENDENCY IS PRODUCED IN ONE OUT
OF ALL THE VARIOUS LINES OF COMMERCE, THE WORDS 'IN ANY LINE OF
COMMERCE' LITERALLY ARE SATISFIED."  278 U.S., AT 253. 

FN14  THE GENERAL MOTORS BRIEF STATES: 

"IF THE MARKET FOR THESE PRODUCTS WERE SOLELY OR MAINLY THE GENERAL
MOTORS CORPORATION, OR THE AUTOMOBILE INDUSTRY AS A WHOLE, GENERAL
MOTORS' VOLUME AND PRESENT SHARE OF THE AUTOMOBILE INDUSTRY MIGHT
CONSTITUTE A MARKET LARGE ENOUGH FOR THE GOVERNMENT TO RELY ON." 

FN15  STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, 337 U.S. 293,
AT 314. 

FN16  MOODY'S INDUSTRIALS LISTS GENERAL MOTORS' PROPORTION OF THE
INDUSTRY:

                PERCENT 

1938              42) 

1939              42) 

1940     45.6 

1941              45.3 

1942              W.W. II 

1943              W.W. II 

1944              W.W. II 

1945              W.W. II 

1946              36.3 

1947              38.5 

1948              38.8 

1949        42.7 

1950              45.6 

1951              41.8 

1952              40.3 

1953              44.7 

1954              49.9 

1955              48.8 

FN17  FORTUNE DIRECTORY OF THE 500 LARGEST U.S. INDUSTRIAL
CORPORATIONS, JULY 1956, P. 2. 

FN18  N.Y. TIMES, FEB. 3, 1956, P. 1, COL. 3. 

FN19  A FINISH DEVELOPED SPECIALLY BY DU PONT AND GENERAL MOTORS FOR
USE AS AN AUTOMOTIVE FINISH. 

FN20  A SYNTHETIC ENAMEL DEVELOPED BY DU PONT WHICH IS USED ON
REFRIGERATORS, ALSO MANUFACTURED BY GENERAL MOTORS. 

FN21  126 F. SUPP., AT 295. 

FN22  ID., AT 300-301. 

FN23  STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346. 

FN24  CF. CORN PRODUCTS REFINING CO. V. FEDERAL TRADE COMM'N, 324
U.S. 726, 738. 

FN25  SECTION 7 PROVIDES, IN PERTINENT PART: 

"THIS SECTION SHALL NOT APPLY TO CORPORATIONS PURCHASING SUCH STOCK
SOLELY FOR INVESTMENT AND NOT USING THE SAME BY VOTING OR OTHERWISE TO
BRING ABOUT, OR IN ATTEMPTING TO BRING ABOUT, THE SUBSTANTIAL LESSENING
OF COMPETITION  ...  ."  38 STAT. 731, 15 U.S.C. (1946 ED.)  SEC.  18. 

FN26  126 F. SUPP., AT 335. 

FN27  STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346, AT
356-357. 

FN28  THERE IS NO SIGNIFICANT DISPUTE AS TO THE BASIC FACTS PERTINENT
TO THE DECISION.  WE ARE THUS NOT CONFRONTED HERE WITH THE PROVISION OF
FED. RULES CIV. PROC., 52(A), THAT FINDINGS OF FACT SHALL NOT BE SET
ASIDE UNLESS CLEARLY ERRONEOUS. 

FN29  BEFORE 1917, DU PONT SUPPLIED GENERAL MOTORS WITH COATED
FABRICS.  126 F. SUPP., AT 297. 

FN30  126 F. SUPP., AT 243. 

FN31  126 F. SUPP., AT 241. 

FN32  126 F. SUPP., AT 241. 

FN33  126 F. SUPP., AT 245. 

FN34  126 F. SUPP., AT 267. 

FN35  THE DU PONT POLICY IS WELL EPITOMIZED IN A 1926 LETTER WRITTEN
BY A FORMER DU PONT EMPLOYEE, J.L. PRATT, WHEN A GENERAL MOTORS VICE
PRESIDENT AND MEMBER OF THE EXECUTIVE COMMITTEE, TO THE GENERAL MANAGER
OF A GENERAL MOTORS DIVISION: 

"I AM GLAD TO KNOW THAT YOUR MANUFACTURING, CHEMICAL AND PURCHASING
DIVISIONS FEEL THEY WOULD BE IN BETTER HANDS POSSIBLY BY DEALING WITH
DUPONT THAN WITH LOCAL COMPANIES.  FROM A BUSINESS STANDPOINT NO DOUBT
YOUR ORGANIZATION WOULD BE INFLUENCED TO GIVE THE BUSINESS, UNDER EQUAL
CONDITIONS, TO THE LOCAL CONCERNS.  HOWEVER, I THINK WHEN GENERAL
MOTORS DIVISIONS RECOGNIZE THE SACRIFICE THAT THE DUPONT COMPANY MADE
IN 1920 AND 1921, TO KEEP GENERAL MOTORS CORPORATION FROM BEING PUT IN
A VERY BAD LIGHT PUBLICLY - THE DUPONT COMPANY GOING TO THE EXTENT OF
BORROWING $35,000,000 ON ITS NOTES WHEN THE COMPANY WAS ENTIRELY FREE
OF DEBT, IN ORDER TO PREVENT A LARGE AMOUNT OF GENERAL MOTORS STOCK
BEING THROWN ON THE OPEN MARKET - THEY SHOULD GIVE WEIGHT TO THIS WHICH
IN MY MIND MORE THAN OVER-BALANCES CONSIDERATION OF LOCAL CONDITIONS. 
IN OTHER WORDS, I FEEL THAT WHERE CONDITIONS ARE EQUAL FROM THE
STANDPOINT OF QUALITY, SERVICE AND PRICE, THE DUPONT COMPANY SHOULD
HAVE THE MAJOR SHARE OF GENERAL MOTORS DIVISIONS' BUSINESS ON THOSE
ITEMS THAT THE DUPONT COMPANY CAN TAKE ON THE BASIS OF QUALITY, SERVICE
AND PRICE.  IF IT IS POSSIBLE TO USE THE PRODUCT FROM MORE THAN ONE
COMPANY I DO NOT THINK IT ADVISABLE TO GIVE ANY ONE COMPANY ALL OF THE
BUSINESS, AS I THINK IT IS DESIRABLE TO ALWAYS KEEP A COMPETITIVE
SITUATION, OTHERWISE ANY SUPPLIER IS LIABLE TO GROW SLACK IN SEEING
THAT YOU HAVE THE BEST SERVICE AND PRICE POSSIBLE. 

"I HAVE EXPRESSED MY OWN PERSONAL SENTIMENTS IN THIS LETTER TO YOU IN
ORDER THAT YOU MIGHT HAVE MY POINT OF VIEW, BUT I DO NOT WISH TO
INFLUENCE YOUR ORGANIZATION IN ANY WAY THAT WOULD BE AGAINST YOUR OWN
GOOD JUDGMENT, KEEPING IN MIND THAT ABOVE ALL THE PRIME CONSIDERATION
IS TO DO THE BEST THING FOR DELCO-LIGHT COMPANY, AND THAT
CONSIDERATIONS IN REGARD TO THE DUPONT COMPANY OR OTHER CONCERNS ARE
SECONDARY, AND I AM SURE THIS IS YOUR FEELING." 

FN36  THE POTENCY OF THE INFLUENCE OF DU PONT'S 23% STOCK INTEREST IS
GREATER TODAY BECAUSE OF THE DIFFUSION OF THE REMAINING SHARES WHICH,
IN 1947, WERE HELD BY 436,510 STOCKHOLDERS; 92% OWNED NO MORE THAN 100
SHARES EACH, AND 60% OWNED NO MORE THAN 25 SHARES EACH.  126 F. SUPP.,
AT 244. 

MR. JUSTICE CLARK, MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

IN JUNE 1949, THE UNITED STATES BROUGHT THIS CIVIL ACTION IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
UNDER SEC. 4 OF THE SHERMAN ACT AND SEC. 15 OF THE CLAYTON ACT TO
ENJOIN ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT, AND SEC.
7 OF THE CLAYTON ACT.  THE AMENDED COMPLAINT, INSOFAR AS PERTINENT TO
THE ISSUES HERE, ALLEGED THAT DU PONT AND GENERAL MOTORS HAVE BEEN
ENGAGED, SINCE 1915, IN A COMBINATION AND CONSPIRACY TO RESTRAIN AND
MONOPOLIZE INTERSTATE TRADE, AND THAT DU PONT'S ACQUISITION OF GENERAL
MOTORS' STOCK HAD THE EFFECT OF RESTRAINING TRADE AND TENDING TO CREATE
A MONOPOLY.  IN BRIEF IT WAS ALLEGED THAT, BY MEANS OF THE RELATIONSHIP
BETWEEN DU PONT AND GENERAL MOTORS, DU PONT INTENDED TO OBTAIN, AND DID
OBTAIN, AN ILLEGAL PREFERENCE OVER ITS COMPETITORS IN THE SALE TO
GENERAL MOTORS OF ITS PRODUCTS, AND A FURTHER ILLEGAL PREFERENCE IN THE
DEVELOPMENT OF CHEMICAL DISCOVERIES MADE BY GENERAL MOTORS.  APPELLEES
DENIED THE CHARGES.    THE TRIAL OF THESE ISSUES TOOK NEARLY SEVEN
MONTHS.  THE DISTRICT COURT HEARD 52 WITNESSES, INCLUDING MOST OF THE
PRINCIPAL ACTORS, AND RECEIVED OVER 2,000 EXHIBITS.  THE EVIDENCE
CONTAINED IN THE 8,283-PAGE TRANSCRIPT OF RECORD COVERS IN MINUTE AND
INTIMATE DETAIL THE FACTS BEARING ON THE GOVERNMENT'S CHARGE THAT DU
PONT, BY COERCION, AGREEMENT, CONTROL OR INFLUENCE, HAD INTERFERED
UNLAWFULLY WITH GENERAL MOTORS' PURCHASING AND MANUFACTURING POLICIES. 
ON THE BASIS OF THIS EVIDENCE, THE DISTRICT COURT FOUND THAT THE
GOVERNMENT HAD FAILED TO PROVE ITS CASE AND, SPECIFICALLY, THAT (A) DU
PONT DID NOT CONTROL GENERAL MOTORS, (B) THERE HAD BEEN "NO LIMITATION
OR RESTRAINT UPON GENERAL MOTORS' FREEDOM TO DEAL FREELY AND FULLY WITH
COMPETITORS OF DU PONT" OR UPON ITS "FREEDOM  ...  TO DEAL WITH ITS
CHEMICAL DISCOVERIES," AND (C) AFTER 30 YEARS IN WHICH NO SUCH
RESTRAINT HAD RESULTED, THERE WAS NO "BASIS FOR A FINDING THAT THERE IS
OR HAS BEEN ANY REASONABLE PROBABILITY OF SUCH A RESTRAINT WITHIN THE
MEANING OF THE CLAYTON ACT."  126 F. SUPP. 235, 335. 

THE GOVERNMENT'S BASIC CONTENTION IN THIS COURT IS THAT DU PONT
VIOLATED SECS. 1 AND 2 OF THE SHERMAN ACT IN THAT, BY MEANS OF ITS
ALLEGED CONTROL OF GENERAL MOTORS, IT OBTAINED AN UNLAWFUL PREFERENCE
WITH RESPECT TO GENERAL MOTORS' PURCHASES OF MATERIALS.  IN THE CLOSING
PAGES OF ITS BRIEF, AND FOR A FEW MINUTES IN ITS ORAL ARGUMENT, THE
GOVERNMENT ADDED THE ASSERTION THAT DU PONT HAD VIOLATED SEC. 7 OF THE
CLAYTON ACT IN THAT ITS STOCK INTEREST IN GENERAL MOTORS "HAS BEEN USED
TO CHANNEL GENERAL MOTORS' PURCHASES TO DU PONT." 

THIS COURT, IGNORING THE SHERMAN ACT ISSUES WHICH HAVE BEEN THE FOCAL
POINT OF EIGHT YEARS OF LITIGATION, NOW HOLDS THAT DU PONT'S
ACQUISITION OF A 23% STOCK INTEREST IN GENERAL MOTORS DURING THE YEARS
1917-1919 VIOLATES SEC. 7 OF THE CLAYTON ACT BECAUSE "AT THE TIME OF
SUIT (IN 1949) THERE (WAS) A REASONABLE PROBABILITY THAT THE
ACQUISITION (WAS) LIKELY TO RESULT IN THE CONDEMNED RESTRAINTS."  ANTE,
P. 607.  IN REACHING THIS CONCLUSION, THE COURT HOLDS (1) THAT SEC. 7
OF THE CLAYTON ACT APPLIES TO VERTICAL AS WELL AS HORIZONTAL STOCK
ACQUISITIONS; (2) THAT IN DETERMINING WHETHER THE EFFECT OF THE STOCK
ACQUISITION IS SUCH AS TO CONSTITUTE A RESTRAINT WITHIN SEC. 7, THE
TIME CHOSEN BY THE GOVERNMENT IN BRINGING THE ACTION IS CONTROLLING
RATHER THAN THE TIME OF THE ACQUISITION ITSELF; AND (3) THAT SEC. 7 IS
VIOLATED WHEN, AT THE TIME OF SUIT, THERE IS A REASONABLE PROBABILITY
THAT THE STOCK ACQUISITION IS LIKELY TO RESULT IN THE FORECLOSURE OF
COMPETITORS OF THE ACQUIRING CORPORATION FROM A SUBSTANTIAL SHARE OF
THE RELEVANT MARKET. 

IN APPLYING THESE PRINCIPLES TO THIS CASE, THE COURT PURPORTS TO
ACCEPT THE CAREFULLY DOCUMENTED FINDINGS OF FACT OF THE DISTRICT
COURT.  ACTUALLY, IT OVERTURNS NUMEROUS WELL-SUPPORTED FINDINGS OF THE
DISTRICT COURT BY NOW CONCLUDING THAT DU PONT DID NOT PURCHASE GENERAL
MOTORS' STOCK SOLELY FOR INVESTMENT; THAT DU PONT'S STOCK INTEREST
RESULTED IN PRACTICAL OR WORKING CONTROL OF GENERAL MOTORS; THAT DU
PONT HAS USED OR MIGHT USE THIS "CONTROL" TO SECURE PREFERENCES IN
SUPPLYING GENERAL MOTORS WITH AUTOMOBILE FINISHES AND FABRICS; THAT THE
RELEVANT MARKET INCLUDES ONLY AUTOMOBILE FINISHES AND FABRICS; AND THAT
THERE WAS, EVEN AT THE TIME OF SUIT IN 1949, A REASONABLE PROBABILITY
THAT DU PONT'S COMPETITORS MIGHT BE FORECLOSED FROM A SUBSTANTIAL SHARE
OF THIS RELEVANT MARKET. 

THE COURT'S DECISION IS FAR REACHING.  ALTHOUGH SEC. 7 OF THE CLAYTON
ACT WAS ENACTED IN 1914 - OVER 40 YEARS AGO - THIS IS THE FIRST CASE IN
WHICH THE UNITED STATES OR THE FEDERAL TRADE COMMISSION HAS SOUGHT TO
APPLY IT TO A VERTICAL INTEGRATION.  (FN1)  LIKEWISE, THIS APPEARS TO
BE THE FIRST CASE IN WHICH IT EVER HAS BEEN ARGUED THAT SEC. 7 IS
APPLICABLE TO A STOCK ACQUISITION WHICH TOOK PLACE MANY YEARS BEFORE. 
(FN2)  THE COURT, IN ACCEPTING BOTH OF THESE CONTENTIONS, DISREGARDS
THE LANGUAGE AND PURPOSE OF THE STATUTE, 40 YEARS OF ADMINISTRATIVE
PRACTICE, AND ALL THE PRECEDENTS EXCEPT ONE DISTRICT COURT DECISION. 
THE SWEEPING CHARACTER OF THE COURT'S PRONOUNCEMENT IS FURTHER EVIDENT
FROM THE FACT THAT TO MAKE ITS CASE THE COURT REQUIRES NO SHOWING OF
ANY MISUSE OF A STOCK INTEREST - EITHER AT THE TIME OF ACQUISITION OR
SUBSEQUENTLY - TO GAIN PREFERENTIAL TREATMENT FROM THE ACQUIRED
CORPORATION.  ALL THAT IS REQUIRED, IF THIS CASE IS TO BE OUR GUIDE, IS
THAT SOME COURT IN SOME FUTURE YEAR BE PERSUADED THAT A "REASONABLE
PROBABILITY" THEN EXISTS THAT AN ADVANTAGE OVER COMPETITORS IN A
NARROWLY CONSTRUED MARKET MAY BE OBTAINED AS A RESULT OF THE STOCK
INTEREST.  THUS, OVER 40 YEARS AFTER THE ENACTMENT OF THE CLAYTON ACT,
IT NOW BECOMES APPARENT FOR THE FIRST TIME THAT SEC. 7 HAS BEEN A
SLEEPING GIANT ALL ALONG.  EVERY CORPORATION WHICH HAS ACQUIRED A STOCK
INTEREST IN ANOTHER CORPORATION AFTER THE ENACTMENT OF THE CLAYTON ACT
IN 1914, AND WHICH HAS HAD BUSINESS DEALINGS WITH THAT CORPORATION IS
EXPOSED, RETROACTIVELY, TO THE BITE OF THE NEWLY DISCOVERED TEETH OF
SEC. 7. 

FOR THE REASONS GIVEN BELOW, I BELIEVE THAT THE COURT HAS ERRED IN
(1) APPLYING SEC. 7 TO A VERTICAL ACQUISITION; (2) HOLDING THAT THE
TIME CHOSEN BY THE GOVERNMENT IN BRINGING THE ACTION IS CONTROLLING
RATHER THAN THE TIME OF THE STOCK ACQUISITION ITSELF; AND (3)
CONCLUDING, IN DISREGARD OF THE FINDINGS OF FACT OF THE TRIAL COURT,
THAT THE FACTS OF THIS CASE FALL WITHIN ITS THEORY OF ILLEGALITY. 

                 I. 

PP. 655-656, DOES NOT MAKE UNLAWFUL ALL INTERCORPORATE ACQUISITIONS AND
MERGERS.  (FN3)  IT DOES NOT APPLY TO ACQUISITIONS OF PHYSICAL ASSETS. 
(FN4)  IT APPLIES ONLY TO CERTAIN ACQUISITIONS OF STOCK, AND EVEN THEN
WITH IMPORTANT EXCEPTIONS.  THE FIRST PARAGRAPH OF SEC. 7, WHICH IS THE
STATUTORY PROVISION PRIMARILY INVOLVED IN THIS CASE, PROVIDES: 

"THAT NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE THE EFFECT OF
SUCH ACQUISITION MAY BE TO SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE
CORPORATION WHOSE STOCK IS SO ACQUIRED AND THE CORPORATION MAKING THE
ACQUISITION, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY,
OR TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE."  38 STAT. 731
732, 15 U.S.C. (1946 ED.)  SEC.  18. 

THIS PARAGRAPH MAKES UNLAWFUL ONLY THOSE INTERCORPORATE STOCK
ACQUISITIONS WHICH MAY RESULT IN ANY OF THREE EFFECTS:  (1)
SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE ACQUIRING AND THE ACQUIRED
CORPORATIONS; (2) RESTRAIN COMMERCE IN ANY SECTION OR COMMUNITY; OR (3)
TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE.  THE GOVERNMENT
CONCEDES THAT GENERAL MOTORS AND DU PONT HAVE NEVER BEEN IN COMPETITION
WITH EACH OTHER.  SINCE THE SUBSTANTIALLY LESSEN COMPETITION CLAUSE
APPLIES ONLY TO ACQUISITIONS INVOLVING COMPETING CORPORATIONS
(GENERALLY REFERRED TO AS HORIZONTAL ACQUISITIONS), THAT CLAUSE
CONCEDEDLY IS NOT APPLICABLE TO THIS CASE.  THE QUESTIONS BEFORE US ARE
WHETHER THE OTHER UNLAWFUL EFFECTS, NAMELY, RESTRAINT OF COMMERCE IN
ANY SECTION OR COMMUNITY AND TENDENCY TO CREATE A MONOPOLY OF ANY LINE
OF COMMERCE, ARE APPLICABLE TO THIS CASE, AND, IF SO, WHETHER THE 1917
1919 ACQUISITION OF GENERAL MOTORS' STOCK BY DU PONT RESULTED OR MAY
RESULT IN EITHER OF THOSE UNLAWFUL EFFECTS. 

THE ACQUISITION OF STOCK IN A CORPORATION THAT IS NOT ENGAGED IN THE
SAME LINE OF BUSINESS AS THE ACQUIRING CORPORATION.  ALTHOUGH THE
LANGUAGE OF THE ACT IS AMBIGUOUS, THE RELEVANT LEGISLATIVE HISTORY,
ADMINISTRATIVE PRACTICE, AND JUDICIAL INTERPRETATION SUPPORT THE
CONCLUSION THAT SEC. 7 DOES NOT APPLY TO VERTICAL ACQUISITIONS. 

THE REPORT OF THE HOUSE COMMITTEE ON THE JUDICIARY, PRESENTED BY
REPRESENTATIVE CLAYTON, STATED EMPHATICALLY THAT THE PROVISIONS
RELATING TO STOCK ACQUISITIONS BY CORPORATIONS, WHICH ORIGINALLY
APPEARED AS SEC. 8 OF THE BILL, WERE INTENDED TO ELIMINATE THE EVILS OF
HOLDING COMPANIES.  H.R. REP. NO. 627, 63D CONG., 2D SESS. 17. 
ALTHOUGH A "HOLDING COMPANY" WAS DEFINED AS "A COMPANY THAT HOLDS THE
STOCK OF ANOTHER COMPANY OR COMPANIES," THE ONE "EVIL" REFERRED TO WAS
THAT A HOLDING COMPANY "IS A MEANS OF HOLDING UNDER ONE CONTROL THE
COMPETING COMPANIES WHOSE STOCKS IT HAS THUS ACQUIRED."  IBID.  TWO
MINORITY STATEMENTS APPENDED TO THE HOUSE REPORT EVIDENCE A SIMILAR
UNDERSTANDING THAT THE PROVISIONS OF THE BILL WERE LIMITED TO COMPETING
CORPORATIONS.  ID., PT. 2, P. 6; PT. 3, P. 8.  THE SUBSTANCE OF THE
HOUSE REPORT WAS ADOPTED BY THE SENATE COMMITTEE ON THE JUDICIARY IN
ITS REPORT ON THE BILL.  S. REP.  NO. 698, 63D CONG., 2D SESS. 13, 43,
46. 

THE EXTENSIVE DEBATES ON THE BILL IN EACH HOUSE OF CONGRESS CONTAIN
MANY DETAILED DISCUSSIONS OF THE PROVISIONS RELATING TO INTERCORPORATE
STOCK ACQUISITIONS.  THESE DISCUSSIONS ARE DEVOID OF ANY SUGGESTION
THAT THE PROVISIONS WERE TO APPLY TO VERTICAL ACQUISITIONS.  (FN5)  ON
THE CONTRARY, THESE PROVISIONS OF THE BILL WERE REPEATEDLY DESCRIBED AS
PROHIBITING THE ACQUISITION OF STOCK OF COMPETING COMPANIES.  (FN6)
THE ONE SPECIFIC REFERENCE TO A VERTICAL ACQUISITION DURING THE ENTIRE
DEBATE ON THESE PROVISIONS ENDED WITH A FLAT STATEMENT BY SENATOR REED
TO THE EFFECT THAT THE BILL AS THEN WRITTEN (CONTAINING THE TENDENCY
TOWARD MONOPOLY CLAUSE BUT NOT THE RESTRAINT OF COMMERCE CLAUSE) WOULD
NOT PREVENT A STEEL MANUFACTURING CORPORATION FROM ACQUIRING STOCK IN
AN ORE PRODUCING CORPORATION, A CLASSIC TYPE OF VERTICAL INTEGRATION. 
(FN7)  A READING OF THE LEGISLATIVE HISTORY OF THE BILL LEAVES THE
DISTINCT IMPRESSION THAT INTERCORPORATE RELATIONSHIPS BETWEEN BUYERS
AND SELLERS WHICH RESULTED IN NONCOMPETITIVE PREFERENCES WERE INTENDED
TO BE DEALT WITH EXCLUSIVELY BY THE PROVISION FORBIDDING INTERLOCKING
DIRECTORATES (SEC. 8 OF THE CLAYTON ACT), IF NOT COVERED BY THE
SPECIFIC PROHIBITIONS OF CERTAIN PRICE DISCRIMINATIONS (SEC. 2), AND OF
CERTAIN EXCLUSIVE SELLING OR LEASING CONTRACTS (SEC. 3).  (FN8) 

FORTY YEARS OF ADMINISTRATIVE PRACTICE PROVIDES ADDITIONAL SUPPORT
FOR THIS VIEW.  NEITHER THE DEPARTMENT OF JUSTICE NOR THE FEDERAL TRADE
COMMISSION, THE TWO PRINCIPAL ENFORCING AGENCIES, HAS BROUGHT ANY
ACTION UNDER OLD SEC. 7 (OTHER THAN THE INSTANT CASE) THAT HAS NOT
INVOLVED A STOCK ACQUISITION IN ALLEGEDLY COMPETING CORPORATIONS.  THE
FEDERAL TRADE COMMISSION REPEATEDLY HAS DECLARED ITS UNDERSTANDING THAT
SEC. 7, PRIOR TO ITS AMENDMENT IN 1950, APPLIED ONLY TO COMPETING
CORPORATIONS.  (FN9)  IN A RECENT REPORT IT STATED WITHOUT
QUALIFICATION: 

"WHILE THE 1914 ACT APPLIED SOLELY TO HORIZONTAL MERGERS, THE 1950
ACT APPLIES NOT ONLY TO HORIZONTAL ACQUISITIONS BUT TO VERTICAL AND
CONGLOMERATE ACQUISITIONS WHICH MIGHT SUBSTANTIALLY LESSEN COMPETITION
OR TEND TO CREATE A MONOPOLY."  F.T.C., REPORT ON CORPORATE MERGERS AND
ACQUISITIONS (MAY 1955), 168, H.R. DOC. NO. 169, 84TH CONG., 1ST SESS. 

BEGINNING IN 1927, THE FEDERAL TRADE COMMISSION INCLUDED IN ITS
ANNUAL RECOMMENDATIONS TO CONGRESS A REQUEST THAT SEC. 7 BE AMENDED TO
REMEDY ITS INADEQUACIES.  THIS RESULT WAS ACHIEVED IN 1950.  64 STAT.
1125, 15 U.S.C. SEC. 18.  AS THE COURT RECOGNIZES IN ITS OPINION, ANTE,
P. 590, ONE OF THE REASONS FOR AMENDING SEC. 7 IN 1950 WAS, IN THE
WORDS OF THE HOUSE REPORT ON THE AMENDMENTS, "TO MAKE IT CLEAR THAT THE
BILL APPLIES TO ALL TYPES OF MERGERS AND ACQUISITIONS, VERTICAL AND
CONGLOMERATE AS WELL AS HORIZONTAL  ...  ."  H.R. REP. NO. 1191, 81ST
CONG., 1ST SESS. 11.  FORTY YEARS OF ESTABLISHED ADMINISTRATIVE
PRACTICE, ACQUIESCED IN AND RECOGNIZED BY CONGRESS, IS PERSUASIVE
EVIDENCE OF THE PROPER SCOPE OF SEC. 7.  FEDERAL TRADE COMMISSION V.
BUNTE BROS., INC., 312 U.S. 349, 351-352. 

THE CASES CITED BY THE COURT, WITH THE ONE EXCEPTION OF RONALD
FABRICS CO. V. VERNEY BRUNSWICK MILLS, INC., CCH TRADE CASES PARA.
57,514 (D.C.S.D.N.Y. 1946), (FN10) DO NOT SUPPORT THE COURT'S
CONCLUSION THAT SEC. 7 APPLIES TO A VERTICAL ACQUISITION.  IN ALUMINUM
CO. OF AMERICA V. FEDERAL TRADE COMMISSION, 284 F. 401 (C.A. 3D CIR.
1922), THE ALUMINUM COMPANY, WHICH PREVIOUSLY HAD HAD A MONOPOLY OF ALL
SHEET ALUMINUM PRODUCED IN THE UNITED STATES, ACQUIRED CONTROL THROUGH
AN INTERMEDIARY CORPORATION OF A COMPETING SHEET ALUMINUM COMPANY
ESTABLISHED IN 1916.  A DIVESTITURE ORDER OF THE FEDERAL TRADE
COMMISSION WAS UPHELD, THE COURT HOLDING THAT THE STOCK ACQUISITION
SUBSTANTIALLY LESSENED COMPETITION AND TENDED TO CREATE A MONOPOLY OF
THE SHEET ALUMINUM BUSINESS.  IN UNITED STATES V. NEW ENGLAND FISH
EXCHANGE, 258 F. 732 (D.C. MASS. 1919), TWO HOLDING COMPANIES WHICH HAD
ACQUIRED THE STOCK OF VIRTUALLY ALL THE WHOLESALE FISH DEALERS TRADING
ON THE NEW ENGLAND FISH EXCHANGE, WHICH HANDLED ABOUT 95% OF ALL THE
GROUND FISH SOLD IN INTERSTATE COMMERCE IN THE UNITED STATES, WERE HELD
TO HAVE VIOLATED THE PROVISIONS OF SEC. 7.  EACH OF THESE CASES WAS
CONCERNED WITH THE ACQUISITION OF DIRECTLY COMPETING CORPORATIONS - NOT
VERTICAL ACQUISITIONS.  STATEMENTS IN THE OPINIONS, NOT ESSENTIAL TO
THE DECISIONS, MERELY STAND FOR THE PROPOSITION THAT THE RESTRAINT AND
MONOPOLY CLAUSES OF SEC. 7 ARE NOT ENTIRELY SYNONYMOUS WITH THE
SUBSTANTIALLY LESSEN COMPETITION CLAUSE. 

ASSUMING THAT THE THREE UNLAWFUL EFFECTS MENTIONED IN SEC. 7 ARE NOT
ENTIRELY SYNONYMOUS WITH EACH OTHER, (FN11) SUCH AN ASSUMPTION DOES NOT
REQUIRE THE CONCLUSION THAT SEC. 7 WAS INTENDED TO APPLY TO VERTICAL
ACQUISITIONS AS WELL AS TO HORIZONTAL ACQUISITIONS.  CORPORATIONS
ENGAGED IN THE SAME BUSINESS ACTIVITY IN DIFFERENT AREAS DO NOT
NECESSARILY "COMPETE" WITH EACH OTHER SO THAT THEIR COMBINATION WOULD
SUBSTANTIALLY LESSEN COMPETITION BETWEEN THEM, EVEN THOUGH THEIR
COMBINATION MIGHT RESULT IN A RESTRAINT OF COMMERCE OR A TENDENCY
TOWARD MONOPOLY VIOLATIVE OF SEC. 7.  SUCH A POSSIBILITY WAS PRESENTED
IN TRANSAMERICA CORP. V. BOARD OF GOVERNORS, 206 F.2D 163 (C.A. 3D CIR.
1953), WHERE A BANKING CORPORATION THROUGH A SERIES OF TRANSACTIONS
ACQUIRED STOCK IN 48 LOCAL BANKING CORPORATIONS, MOST OF WHICH WERE
LOCATED IN COMMUNITIES IN WHICH NO OTHER BANK WAS ACQUIRED.   A
DIVESTITURE ORDER OF THE BOARD WAS REVERSED ON THE GROUND THAT THE
BOARD HAD NOT PROVED THAT THE ACQUISITIONS OF THESE BANKS IN FIVE
WESTERN STATES EITHER SUBSTANTIALLY LESSENED COMPETITION OR TENDED TO
CREATE A MONOPOLY.    FINALLY, THIS COURT HAS TWICE CONSTRUED OLD SEC.
7 AS APPLYING ONLY TO STOCK ACQUISITIONS INVOLVING COMPETING
CORPORATIONS.  IN INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMMISSION,
280 U.S. 291 (1930), THE COURT HELD THAT THE ACQUISITION OF THE FIFTH
LARGEST SHOE MANUFACTURING COMPANY BY THE LARGEST SHOE MANUFACTURER DID
NOT VIOLATE EITHER THE SUBSTANTIALLY LESSEN COMPETITION CLAUSE OR THE
RESTRAINT OF COMMERCE CLAUSE OF SEC. 7 BECAUSE THE PRE-EXISTING
COMPETITION BETWEEN THE TWO CORPORATIONS WAS INSUBSTANTIAL, AND BECAUSE
THE ACQUIRED CORPORATION WAS IN A PRECARIOUS FINANCIAL CONDITION. 
SUBSTANTIAL PRE-EXISTING COMPETITION WAS SAID TO BE A REQUISITE FOR
VIOLATION OF EITHER CLAUSE OF SEC. 7.  280 U.S., AT 298, 303.  AN EVEN
MORE DIRECT HOLDING IS FOUND IN THATCHER MFG. CO. V. FEDERAL TRADE
COMMISSION, 272 U.S. 554 (1926), WHERE THIS COURT AFFIRMED THAT PORTION
OF THE LOWER COURT'S DECREE WHICH HAD ALLOWED THATCHER, A MILK BOTTLE
MANUFACTURER, TO RETAIN THE ASSETS OF WOODBURY, A BOTTLE MANUFACTURER
SPECIALIZING IN CONDIMENT AND WHISKEY BOTTLES, ON THE GROUND THAT THE
ACQUISITION DID NOT VIOLATE ANY OF THE THREE CLAUSES OF SEC. 7 SINCE
THATCHER WAS NOT IN COMPETITION WITH WOODBURY.  272 U.S., AT 560,
AFFIRMING IN PART AND REVERSING IN PART FEDERAL TRADE COMMISSION V.
THATCHER MFG. CO., 5 F.2D 615 (C.A. 3D CIR. 1925).  THESE HOLDINGS
APPARENTLY WILL BE OVERRULED SUB SILENTIO BY TODAY'S DECISION. 

THE LEGISLATIVE HISTORY, ADMINISTRATIVE PRACTICE, AND JUDICIAL
INTERPRETATION OF SEC. 7 PROVIDE THE PERSPECTIVE IN WHICH THE
GOVERNMENT'S PRESENT ASSERTION THAT SEC. 7 APPLIES TO VERTICAL
ACQUISITIONS SHOULD BE VIEWED.  SEEN AS A WHOLE, THEY OFFER CONVINCING
EVIDENCE THAT SEC. 7, PROPERLY CONSTRUED, HAS REFERENCE ONLY TO
HORIZONTAL ACQUISITIONS.  I WOULD SO HOLD.  HOWEVER, EVEN IF THE
OPPOSITE VIEW BE ACCEPTED, THE FOREGOING VIEWS OF THE ENFORCING
AGENCIES AND THE COURTS ARE MATERIAL TO A PROPER CONSIDERATION OF THE
OTHER ISSUES WHICH MUST THEN BE REACHED. 

            II. 

IN THIS CASE THE GOVERNMENT IS CHALLENGING, IN 1949, A STOCK
ACQUISITION THAT TOOK PLACE IN 1917-1919.  THE COURT, WITHOUT ADVANCING
REASONS TO SUPPORT ITS CONCLUSION, HOLDS THAT IN DETERMINING WHETHER
THE EFFECT OF THE STOCK ACQUISITION IS SUCH AS TO VIOLATE SEC. 7, THE
TIME CHOSEN BY THE GOVERNMENT IN BRINGING ITS SUIT IS CONTROLLING
RATHER THAN THE TIME OF THE ACQUISITION OF THE STOCK.  THIS SEEMS TO ME
TO IGNORE THE LANGUAGE AND STRUCTURE OF SEC. 7, THE PURPOSE OF THE
CLAYTON ACT, AND ALL EXISTING ADMINISTRATIVE AND JUDICIAL PRECEDENTS. 

THE FIRST PARAGRAPH OF SEC. 7 PROVIDES THAT "NO CORPORATION  ...
SHALL ACQUIRE  ...  THE STOCK ...  OF ANOTHER CORPORATION  ...  WHERE
THE EFFECT OF SUCH ACQUISITION MAY BE  ...  ."  YET THE COURT CONSTRUES
THIS PROVISION AS IF IT READ "NO CORPORATION  ...  SHALL ACQUIRE OR
CONTINUE TO HOLD  ... THE STOCK  ...  OF ANOTHER CORPORATION  ...
WHENEVER IT SHALL APPEAR THAT THE EFFECT OF SUCH ACQUISITION OR
CONTINUED HOLDING MAY BE  ...  ."  CONTINUED HOLDING, TO BE SURE, IS A
PREREQUISITE TO ANY ACTION UNDER SEC. 7 BECAUSE, IF THE STOCK IS NO
LONGER HELD, THE VIOLATION HAS BEEN PURGED AND THERE IS NOTHING TO
DIVEST.  (FN12)  BUT THE FACT OF CONTINUED HOLDING DOES NOT ALLOW THE
GOVERNMENT TO DISPENSE WITH THE NECESSITY OF PROVING THAT THE STOCK WAS
UNLAWFULLY ACQUIRED.  THE OFFENSE DESCRIBED BY SEC. 7 IS THE
ACQUISITION, NOT THE HOLDING OR THE USE, OF STOCK.  WHEN THE
ACQUISITION HAS BEEN MADE, THE OFFENSE, IF ANY, IS COMPLETE.  THE
STATUTORY LANGUAGE IS UNEQUIVOCAL.   IT MAKES THE TEST THE PROBABLE
EFFECT OF THE ACQUISITION AT THE TIME OF THE ACTUAL ACQUISITION, AND
NOT AT SOME LATER DATE TO BE ARBITRARILY CHOSEN BY THE GOVERNMENT IN
BRINGING SUIT. 

THE DISTINCTION CAREFULLY MADE IN THE SEVERAL PARAGRAPHS OF SEC. 7
BETWEEN AN UNLAWFUL ACQUISITION AND AN UNLAWFUL USE OF STOCK REINFORCES
THIS CONCLUSION.  THE FIRST PARAGRAPH OF SEC. 7, WHICH SPEAKS ONLY IN
TERMS OF ACQUISITION OF STOCK, IS CONCERNED SOLELY WITH THE PURCHASE OF
STOCK IN "ANOTHER CORPORATION."  IT IS THE ONLY PROVISION THAT IS
APPLICABLE IN THIS CASE.  THE SECOND PARAGRAPH, WHICH EXPRESSLY
PROHIBITS BOTH ACQUISITION AND USE, IS CONCERNED WITH STOCK PURCHASES
IN "TWO OR MORE CORPORATIONS."  CONCEDEDLY, IT IS NOT APPLICABLE HERE. 
WHEN CONGRESS CHOSE TO MAKE UNLAWFUL THE USE OF STOCK SUBSEQUENT TO ITS
ACQUISITION, IT DID SO IN SPECIFIC TERMS.  THE OMISSION OF THE PHRASE
"OR THE USE OF SUCH STOCK BY THE VOTING OR GRANTING OF PROXIES OR
OTHERWISE," CONTAINED IN THE SECOND PARAGRAPH OF SEC. 7, FROM THE FIRST
PARAGRAPH OF THE SECTION WAS NOT INADVERTENT.  THE PHRASE THEREFORE
CANNOT BE READ INTO THE FIRST PARAGRAPH OF SEC. 7.  (FN13) 

THE CLAYTON ACT WAS NOT INTENDED TO REPLACE THE SHERMAN ACT IN
REMEDYING ACTUAL RESTRAINTS AND MONOPOLIES.  ITS PURPOSE WAS TO
SUPPLEMENT THE SHERMAN ACT BY CHECKING ANTICOMPETITIVE TENDENCIES IN
THEIR INCIPIENCY, BEFORE THEY REACHED THE POINT AT WHICH THE SHERMAN
ACT COMES INTO PLAY.  THIS PURPOSE WAS WELL STATED IN THE SENATE REPORT
ON THE BILL: 

"BROADLY STATED, THE BILL, IN ITS TREATMENT OF UNLAWFUL RESTRAINTS
AND MONOPOLIES, SEEKS TO PROHIBIT AND MAKE UNLAWFUL CERTAIN TRADE
PRACTICES WHICH, AS A RULE, SINGLY AND IN THEMSELVES, ARE NOT COVERED
BY THE ACT OF JULY 2, 1890, OR OTHER EXISTING ANTITRUST ACTS, AND THUS,
BY MAKING THESE PRACTICES ILLEGAL, TO ARREST THE CREATION OF TRUSTS,
CONSPIRACIES, AND MONOPOLIES IN THEIR INCIPIENCY AND BEFORE
CONSUMMATION."  S. REP. NO. 698, 63D CONG., 2D SESS. 1. 

THIS PURPOSE PLACES EMPHASIS ON THE PROBABLE ANTICOMPETITIVE EFFECTS
OF TRANSACTIONS OR OCCURRENCES VIEWED AS OF THE DATE OF THEIR
OCCURRENCE.  THE DETERMINATION REQUIRED BY THE ACT IS ONE OF PREDICTING
THE PROBABLE OUTCOME OF A PARTICULAR TRANSACTION, HERE AN ACQUISITION
OF STOCK IN ANOTHER CORPORATION.  IF, AT THE TIME OF THE STOCK
ACQUISITION, A POTENTIAL THREAT TO COMPETITION IS APPARENT, THE
ACQUISITION IS UNLAWFUL UNDER SEC. 7.  IF, ON THE OTHER HAND, A
POTENTIAL THREAT TO COMPETITION IS NOT THEN APPARENT, AN ANTITRUST
VIOLATION IS NOT INVOLVED UNLESS SUBSEQUENT USE OF THE STOCK
CONSTITUTES A RESTRAINT OF TRADE PROHIBITED BY THE SHERMAN ACT. 
(FN14) 

THE COURT IGNORES THE ALL-IMPORTANT LAWFULNESS OR UNLAWFULNESS OF THE
STOCK ACQUISITION AT OR ABOUT THE TIME IT OCCURRED, AND LIMITS ITS
ATTENTION TO THE PROBABLE ANTICOMPETITIVE EFFECTS OF THE CONTINUED
HOLDING OF THE STOCK AT THE TIME OF SUIT, SOME 30 YEARS LATER.  THE
RESULT IS TO SUBJECT A GOOD-FAITH STOCK ACQUISITION, LAWFUL WHEN MADE,
TO THE HAZARD THAT THE CONTINUED HOLDING OF THE STOCK MAY MAKE THE
ACQUISITION ILLEGAL THROUGH UNFORESEEN DEVELOPMENTS.  SUCH A VIEW IS
NOT SUPPORTED BY THE STATUTORY LANGUAGE AND VIOLATES ELEMENTARY
PRINCIPLES OF FAIRNESS.  SUITS BROUGHT UNDER THE CLAYTON ACT ARE NOT
SUBJECT TO ANY STATUTE OF LIMITATIONS, AND IT IS DOUBTFUL WHETHER THE
DOCTRINE OF LACHES APPLIES AS AGAINST THE GOVERNMENT.  THE RESULT IS
THAT UNEXPECTED AND UNFORESEEABLE DEVELOPMENTS OCCURRING LONG AFTER A
STOCK ACQUISITION CAN BE USED TO CHALLENGE THE LEGALITY OF CONTINUED
HOLDING OF THE STOCK.  IN SUCH AN ACTION, THE GOVERNMENT NEED ONLY
PROVE THAT PROBABLE RATHER THAN ACTUAL ANTICOMPETITIVE EFFECTS EXIST AS
OF THE TIME OF SUIT.  THE GOVERNMENT MAY THUS SET ASIDE A TRANSACTION
WHICH WAS ENTIRELY LAWFUL WHEN MADE, MERELY BY SHOWING THAT IT WOULD
HAVE BEEN UNLAWFUL HAD IT OCCURRED AT THE TIME OF SUIT, MANY YEARS
LATER.  THE GROWTH OF THE ACQUIRED CORPORATION, A FORTUITOUS DECLINE IN
THE NUMBER OF ITS COMPETITORS, OR THE ACHIEVEMENT OF CONTROL BY AN
ACCIDENTAL DIFFUSION OF OTHER STOCK MAY RESULT, UNDER THIS TEST, IN
RENDERING THE ORIGINALLY LAWFUL ACQUISITION UNLAWFUL AB INITIO. 
STRIKINGLY ENOUGH, ALL OF THESE FACTORS ARE INVOLVED IN THIS CASE. 
(FN15) 

THE COURT'S HOLDING IS UNFAIR TO THE INDIVIDUALS WHO ENTERED INTO
TRANSACTIONS ON THE ASSUMPTION, JUSTIFIED BY THE LANGUAGE OF SEC. 7,
THAT THEIR ACTIONS WOULD BE JUDGED BY THE FACTS AVAILABLE TO THEM AT
THE TIME THEY MADE THEIR DECISION. 

"THE PROHIBITION (OF SEC. 7) IS ADDRESSED TO PARTIES WHO CONTEMPLATE
ENGAGING IN MERGER TRANSACTIONS AND IS MEANT, IN THE FIRST INSTANCE, TO
GUIDE THEM IN DECIDING UPON A COURSE OF ACTION.   THE ONLY STANDARD
THEY ARE CAPABLE OF APPLYING IS ONE ADDRESSED TO THE CIRCUMSTANCES
VIEWED AS OF THE DATE OF THE PROPOSED TRANSACTION.  SINCE THIS IS THE
STANDARD WHICH THE PARTIES MUST APPLY IN DECIDING WHETHER TO UNDERTAKE
A TRANSACTION, IT SEEMS REASONABLE TO CONCLUDE THAT IT IS THE STANDARD
WHICH ENFORCEMENT AGENCIES SHOULD APPLY IN DECIDING WHETHER THE
TRANSACTION VIOLATES THE STATUTE."  NEAL, THE CLAYTON ACT AND THE
TRANSAMERICA CASE, 5 STAN.  L. REV. 179, 220-221. 

THE COURT CITES NO AUTHORITY IN SUPPORT OF ITS NEW INTERPRETATION OF
THIS 40-YEAR-OLD STATUTE.  ON THE OTHER HAND, EXAMINATION OF THE DOZEN
OR MORE CASES BROUGHT UNDER SEC. 7 REVEALS THAT IN EVERY CASE THE
INQUIRY HERETOFORE HAS CENTERED ON THE PROBABLE ANTICOMPETITIVE EFFECTS
OF THE STOCK ACQUISITION AT OR NEAR THE TIME IT WAS MADE.  (FN16)  SEE,
E.G., INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMMISSION, 280 U.S. 291
(1930); TRANSAMERICA CORP. V. BOARD OF GOVERNORS, 206 F.2D 163 (C.A. 3D
CIR. 1953); V. VIVAUDOU, INC. V. FEDERAL TRADE COMMISSION, 54 F.2D 273
(C.A.2D CIR. 1931); FEDERAL TRADE COMMISSION V. THATCHER MFG. CO., 5
F.2D 615 (C.A. 3D CIR. 1925), REV'D IN PART ON ANOTHER GROUND, 272 U.S.
554; UNITED STATES V. REPUBLIC STEEL CORP., 11 F. SUPP. 117 (D.C.N.D.
OHIO 1935); IN RE VANADIUM-ALLOYS STEEL CO., 18 F.T.C. 194 (1934).  THE
CONCLUSION THUS SEEMS INESCAPABLE THAT THE UNLAWFULNESS OF A STOCK
ACQUISITION UNDER THE FIRST PARAGRAPH OF SEC. 7 PROPERLY TURNS ON THE
POTENTIAL THREAT TO COMPETITION CREATED BY THE ACQUISITION OF THE STOCK
AT THE TIME OF ITS ACQUISITION AND NOT BY ITS SUBSEQUENT USE. 

THAT THE TIME OF ACQUISITION IS CONTROLLING DOES NOT MEAN THAT THE
GOVERNMENT IS UNABLE TO BRING AN ACTION IF IT FAILS TO PROCEED WITHIN A
FEW YEARS OF THE STOCK ACQUISITION.  IT MEANS ONLY THAT IF THE
GOVERNMENT CHOOSES TO BRING ITS ACTION MANY YEARS LATER, IT MUST PROVE
WHAT SEC. 7 PLAINLY REQUIRES - THAT THE ACQUISITION THREATENED
COMPETITION WHEN MADE. 

NOR DOES IT MEAN THAT EVIDENCE OF SUBSEQUENT EVENTS IS NECESSARILY
IRRELEVANT.  EVIDENCE THAT ANTICOMPETITIVE EFFECTS HAVE OCCURRED SINCE
THE ACQUISITION, AND THAT THESE EFFECTS ARE TRACEABLE TO THE ORIGINAL
ACQUISITION RATHER THAN TO OTHER FACTORS, MAY SUPPORT AN INFERENCE THAT
SUCH EFFECTS WERE "REASONABLY PROBABLE" AT THE TIME OF ACQUISITION. 
THE ELEMENT OF CAUSATION IS THE NECESSARY LINK WITH THE PAST.  HOWEVER,
IF EVENTS SUBSEQUENT TO THE ACQUISITION INDICATE THAT NO
ANTICOMPETITIVE EFFECTS HAVE OCCURRED, THAT EVIDENCE MAY SUPPORT AN
INFERENCE THAT AN UNLAWFUL POTENTIAL DID NOT EXIST AT THE TIME OF
ACQUISITION.  EVIDENCE AS TO WHAT HAPPENED AFTER THE ACQUISITION IS
RELEVANT TO THE EXTENT THAT IT BEARS ON THE CENTRAL QUESTION WHETHER,
AT THE TIME OF THE ACQUISITION, THERE WAS A REASONABLE PROBABILITY OF A
THREAT TO COMPETITION. 

I AGREE WITH THE COURT THAT SEC. 7 DOES NOT REQUIRE FINDINGS AND
CONCLUSIONS OF ACTUAL ANTICOMPETITIVE EFFECTS.  UNLIKE THE SHERMAN ACT,
SEC. 7 MERELY REQUIRES PROOF OF A REASONABLE PROBABILITY OF A
SUBSTANTIAL LESSENING OF COMPETITION, RESTRAINT OF COMMERCE, OR
TENDENCY TOWARD MONOPOLY.  INTERNATIONAL SHOE CO. V. FEDERAL TRADE
COMMISSION, 280 U.S. 291; TRANSAMERICA CORP. V. BOARD OF GOVERNORS, 206
F.2D 163.  WHEN A VERTICAL ACQUISITION IS INVOLVED, ITS LEGALITY THUS
TURNS ON WHETHER THERE IS A REASONABLE PROBABILITY THAT IT WILL
FORECLOSE COMPETITION FROM A SUBSTANTIAL SHARE OF THE MARKET, EITHER BY
SIGNIFICANTLY RESTRICTING ACCESS TO NEEDED SUPPLIES OR BY SIGNIFICANTLY
LIMITING THE MARKET FOR ANY PRODUCT.  SEE REPORT OF THE ATTORNEY
GENERAL'S NATIONAL COMMITTEE TO STUDY THE ANTITRUST LAWS (1955) 122
127.  THE DETERMINATION OF SUCH PROBABLE ECONOMIC CONSEQUENCES REQUIRES
STUDY OF THE MARKETS AFFECTED, OF THE COMPANIES INVOLVED IN RELATION TO
THOSE MARKETS, AND OF THE PROBABLE IMMEDIATE AND FUTURE EFFECTS ON
COMPETITION.  A MERE SHOWING THAT A SUBSTANTIAL DOLLAR VOLUME OF SALES
IS INVOLVED CANNOT SUFFICE.  AS THE COURT SAYS, "THE MARKET AFFECTED
MUST BE SUBSTANTIAL," ANTE, P. 595, AND "SUBSTANTIALITY CAN BE
DETERMINED ONLY IN TERMS OF THE MARKET AFFECTED," ANTE, P. 593. 
ECONOMIC FACTORS. 

HOWEVER, WHEN, AS HERE, THE GOVERNMENT BRINGS A PROCEEDING NEARLY 30
YEARS AFTER A STOCK PURCHASE, IT MUST PROVE THAT THE ACQUISITION WAS
UNLAWFUL WHEN MADE (I.E., THAT THERE WAS A REASONABLE PROBABILITY AT
THAT TIME THAT DU PONT'S COMPETITORS WOULD BE FORECLOSED FROM A
SUBSTANTIAL SHARE OF THE RELEVANT MARKET), AND ALSO THAT THE EFFECT OF
THE ACQUISITION CONTINUED TO BE HARMFUL TO COMPETITION AT THE TIME SUIT
WAS BROUGHT.  ILLEGALITY AT THE TIME OF ACQUISITION IS REQUIRED BY THE
FIRST PARAGRAPH OF SEC. 7; CONTINUING ILLEGALITY IS A PREREQUISITE FOR
OBTAINING EQUITABLE RELIEF.  SEE UNITED STATES V. W.T. GRANT CO., 345
U.S. 629; UNITED STATES V. OREGON MEDICAL SOCIETY, 343 U.S. 326, 333;
UNITED STATES V. SOUTH BUFFALO R. CO., 333 U.S. 771, 774.  THIS IS
PARTICULARLY TRUE UNDER SEC. 7 SINCE IT IS A PROPHYLACTIC MEASURE
DESIGNED TO PREVENT STOCK ACQUISITIONS WHICH PROBABLY WILL HAVE A
DELETERIOUS EFFECT ON COMPETITION.  PROOF THAT COMPETITION HAS NOT IN
FACT BEEN HARMED DURING A LONG PERIOD FOLLOWING A STOCK ACQUISITION
ITSELF INDICATES THAT A RESTRAINT IN THE FUTURE IS UNLIKELY.  IN SUCH A
CASE, THE ACTUAL EFFECT OF THE ACQUISITION LARGELY SUPPLANTS THE
CONJECTURE AS TO ITS PROBABLE EFFECTS WHICH OTHERWISE MUST BE RELIED
UPON.    IN THIS CASE, THE DISTRICT COURT FOUND THAT THE CHALLENGED
ACQUISITION, WHICH TOOK PLACE "OVER THIRTY YEARS AGO," HAD NOT RESULTED
IN ANY RESTRAINT OF TRADE "IN THOSE MANY INTERVENING YEARS  ... ."  THE
DISTRICT COURT PROPERLY CONCLUDED THAT, WHEN THERE HAD BEEN NO
RESTRAINT FOR 30 YEARS, "THERE IS NOT  ...  ANY BASIS FOR A FINDING
THAT THERE IS  ...  ANY REASONABLE PROBABILITY OF SUCH A RESTRAINT
WITHIN THE MEANING OF THE CLAYTON ACT."  126 F. SUPP., AT 335.  IF THE
EVIDENCE SUPPORTS THE DISTRICT COURT'S CONCLUSION THAT THERE HAS BEEN
NO RESTRAINT FOR 30 YEARS, THE JUDGMENT BELOW MUST BE AFFIRMED. 

                    III. 

THE REMAINING ISSUES ARE FACTUAL:  (1) WHETHER THE RECORD ESTABLISHES
THE EXISTENCE OF A REASONABLE PROBABILITY THAT DU PONT'S COMPETITORS
WILL BE FORECLOSED FROM SECURING GENERAL MOTORS' TRADE, AND (2) WHETHER
THE RECORD ESTABLISHES THAT SUCH FORECLOSURE, IF PROBABLE, INVOLVES A
SUBSTANTIAL SHARE OF THE RELEVANT MARKET AND SIGNIFICANTLY LIMITS THE
COMPETITIVE OPPORTUNITIES OF OTHERS TRADING IN THAT MARKET.  IN
DISCUSSING THESE FACTUAL ISSUES, I MEET THE COURT ON ITS OWN GROUND,
THAT IS, I ASSUME THAT THE OLD SEC. 7 APPLIES TO VERTICAL ACQUISITIONS,
AND THAT THE POTENTIAL THREAT AT THE TIME OF SUIT IS CONTROLLING.  EVEN
ON THAT BASIS THE RECORD DOES NOT SUPPORT THE COURT'S CONCLUSION THAT
SEC. 7 WAS VIOLATED BY THIS 1917-1919 STOCK ACQUISITION. 

A. FORECLOSURE OF COMPETITORS. 

THIS IS NOT A CASE WHERE A SUPPLIER CORPORATION HAS MERGED WITH ITS
CUSTOMER CORPORATION WITH THE RESULT THAT THE SUPPLIER'S COMPETITORS
ARE AUTOMATICALLY AND COMPLETELY FORECLOSED FROM THE CUSTOMER'S TRADE. 
(FN17) IN THIS CASE, THE ONLY CONNECTION BETWEEN DU PONT, THE SUPPLIER,
AND GENERAL MOTORS, THE CUSTOMER, IS DU PONT'S 23% STOCK INTEREST IN
GENERAL MOTORS.  A CONCLUSION THAT SUCH A STOCK INTEREST AUTOMATICALLY
FORECLOSES DU PONT'S COMPETITORS FROM SELLING TO GENERAL MOTORS WOULD
BE WITHOUT JUSTIFICATION.  WHETHER A FORECLOSURE HAS OCCURRED IN THE
PAST OR IS PROBABLE IN THE FUTURE IS A QUESTION OF FACT TURNING ON THE
EVIDENCE IN THE RECORD. 

THE COURT, AT THE OUTSET OF ITS OPINION, STATES THAT THE PRIMARY
ISSUE IS WHETHER DU PONT'S POSITION AS A SUBSTANTIAL SUPPLIER TO
GENERAL MOTORS "WAS ACHIEVED ON COMPETITIVE MERIT ALONE," OR RESULTED
FROM DU PONT'S STOCK INTEREST IN GENERAL MOTORS.  ANTE, PP. 588-589. 
IN RESOLVING THIS ISSUE, THE COURT STATES THAT THE "BASIC FACTS" ARE
NOT IN DISPUTE AND HENCE THAT IT IS UNNECESSARY TO SET ASIDE THE
FINDINGS OF FACT OF THE DISTRICT COURT AS CLEARLY ERRONEOUS.  SEE FED.
RULES CIV. PROC., 52(A).  THE BASIC FACTS ARE SAID TO BE THAT DU PONT
HAD NO STANDING AS A GENERAL MOTORS' SUPPLIER BEFORE THE STOCK
PURCHASES OF 1917-1919, THAT IT GAINED A "COMMANDING POSITION" AFTER
THE STOCK PURCHASES, AND THAT CERTAIN ITEMS OF EVIDENCE IN THIS
GIGANTIC RECORD TEND TO INDICATE THAT DU PONT HOPED TO GET AND ACTUALLY
DID GET A PREFERENCE IN GENERAL MOTORS' TRADE.  FROM THESE ALLEGED
FACTS THE COURT DRAWS THE CONCLUSION THAT DU PONT HAS MISUSED ITS 23%
STOCK INTEREST IN GENERAL MOTORS "TO ENTRENCH ITSELF AS THE PRIMARY
SUPPLIER OF GENERAL MOTORS' REQUIREMENTS FOR AUTOMOTIVE FINISHES AND
FABRICS."  ANTE, P. 606.  "THE INFERENCE IS OVERWHELMING," THE COURT
CONCLUDES, "THAT DU PONT'S COMMANDING POSITION WAS PROMOTED BY ITS
STOCK INTEREST AND WAS NOT GAINED SOLELY ON COMPETITIVE MERIT."  ANTE,
P. 605.  WITH THESE WORDS, THE COURT OVERTURNS THE DISTRICT COURT'S
UNEQUIVOCAL FINDINGS TO THE EFFECT THAT DU PONT WAS A PRINCIPAL
SUPPLIER TO GENERAL MOTORS PRIOR TO THE 1917-1919 STOCK PURCHASES, THAT
DU PONT MAINTAINED THIS POSITION IN THE YEARS FOLLOWING THE STOCK
PURCHASES, AND THAT FOR THE ENTIRE 30-YEAR PERIOD PRECEDING THE SUIT,
GENERAL MOTORS' PURCHASES OF DU PONT'S PRODUCTS WERE BASED SOLELY ON
THE COMPETITIVE MERITS OF THOSE PRODUCTS.  THE EVIDENCE SUPPORTING
THESE FINDINGS OF THE DISTRICT COURT MAY BE SUMMARIZED AS FOLLOWS: 

DU PONT IS PRIMARILY A MANUFACTURER OF CHEMICALS AND CHEMICAL
PRODUCTS.  THOUSANDS OF ITS PRODUCTS COULD BE USED BY GENERAL MOTORS IN
MANUFACTURING AUTOMOBILES, APPLIANCES AND MACHINERY.  DESPITE DU PONT'S
SALES EFFORTS OVER A PERIOD OF 40 YEARS, GENERAL MOTORS BUYS MANY OF
THE COMMODITIES PRODUCED BY DU PONT FROM DU PONT'S COMPETITORS.  (FN18)
THE COURT, IGNORING THE MANY PRODUCTS WHICH GENERAL MOTORS DECLINES TO
BUY FROM DU PONT OR WHICH IT BUYS ONLY IN SMALL QUANTITIES,
CONCENTRATES ON THE FEW PRODUCTS WHICH DU PONT HAS SOLD IN LARGE VOLUME
TO GENERAL MOTORS FOR MANY YEARS - PAINTS AND FABRICS.  BEFORE
EXAMINING THE HISTORY OF THOSE LARGE-VOLUME PURCHASES, IT IS ESSENTIAL
TO UNDERSTAND WHERE AND BY WHOM PURCHASING DECISIONS WITHIN GENERAL
MOTORS HAVE BEEN MADE. 

FOR MANY YEARS, GENERAL MOTORS HAS BEEN ORGANIZED INTO SOME 30
OPERATING DIVISIONS, EACH OF WHICH HAS FINAL AUTHORITY TO MAKE, AND
DOES MAKE, ITS OWN PURCHASING DECISIONS.  THIS DECENTRALIZED MANAGEMENT
SYSTEM PLACES FULL RESPONSIBILITY FOR PURCHASING DECISIONS ON THE
OFFICERS OF THE RESPECTIVE DIVISIONS.  TO SPEAK OF "SELLING TO GENERAL
MOTORS" IS, THEREFORE, MISLEADING.  A PROSPECTIVE SUPPLIER, INSTEAD OF
SELLING TO GENERAL MOTORS, SELLS TO CHEVROLET, OR FRIGIDAIRE, OR
TERNSTEDT, OR DELCO LIGHT, AS DIVISIONS.  MOREOVER, WHEN THERE ARE
SEVERAL PLANTS WITHIN A DIVISION, EACH PLANT FREQUENTLY HAS ITS OWN
PURCHASING AGENT AND PRESENTS A SEPARATE SELLING JOB. 

THE RECORD DISCLOSES THAT EACH DIVISION BUYS INDEPENDENTLY, THAT THE
PATTERN OF BUYING VARIES GREATLY FROM ONE DIVISION TO ANOTHER, AND THAT
WITHIN EACH DIVISION PURCHASES FROM DU PONT HAVE FLUCTUATED GREATLY IN
RESPONSE TO PRICE, QUALITY, SERVICE AND OTHER COMPETITIVE
CONSIDERATIONS.  FOR EXAMPLE, OLDSMOBILE IS THE ONLY DIVISION WHICH
BUYS ANTIFREEZE FROM DU PONT AND ONE OF THE TWO CAR DIVISIONS WHICH
DOES NOT FINISH ITS CARS WITH DUCO.  BUICK ALONE BUYS DU PONT MOTOR
ENAMEL, AND CADILLAC ALONE USES DU PONT'S COPPER ELECTROPLATING
EXCLUSIVELY.  THUS THE ALLEGED NEFARIOUS INFLUENCE ARISING FROM DU
PONT'S STOCK INTEREST APPARENTLY AFFECTS THE OLDSMOBILE ANTIFREEZE
BUYER, BUT NOT THE OLDSMOBILE PAINT BUYER; THE PAINT BUYERS AT
CHEVROLET, BUICK AND PONTIAC, BUT NOT THE ANTIFREEZE OR ELECTROPLATING
BUYERS; AND THE ELECTROPLATING BUYER AT CADILLAC, BUT NOT THE CADILLAC
PAINT BUYER. 

1.  PAINTS.  - DU PONT, FOR MANY YEARS, HAS HAD MARKED SUCCESS IN THE
MANUFACTURE AND SALE OF PAINTS, VARNISHES, LACQUERS AND RELATED
PRODUCTS.  (FN19)  IN 1939, IT PRODUCED 9.5% OF THE TOTAL DOLLAR VALUE
OF ALL FINISHES PRODUCED IN THE UNITED STATES AND, IN 1947, 8.1%.  IN
RECENT YEARS, APPROXIMATELY THREE-FOURTHS OF DU PONT'S TOTAL SALES TO
GENERAL MOTORS HAVE CONSISTED OF INDUSTRIAL FINISHES.  (FN20)  ALTHOUGH
DU PONT HAS BEEN GENERAL MOTORS' PRINCIPAL SUPPLIER OF PAINT FOR MANY
YEARS, GENERAL MOTORS CONTINUES TO BUY ABOUT 30% OF ITS PAINT
REQUIREMENTS FROM COMPETITORS OF DU PONT.  (FN21)  MOREOVER, THE SALES
OF PAINT FROM DU PONT TO GENERAL MOTORS DO NOT BULK LARGE IN THE
RESPECTIVE TOTAL SALES AND PURCHASES OF EITHER COMPANY.  IN 1948, DU
PONT'S FINISH SALES TO GENERAL WERE ONLY 3% OF ITS TOTAL SALES OF ALL
PRODUCTS; THEY WERE AN INFINITESIMAL PERCENTAGE OF GENERAL MOTORS'
TOTAL PURCHASES. 

TWO PRODUCTS ACCOUNT FOR A HIGH PROPORTION OF THESE FINISH SALES TO
GENERAL MOTORS: "DUCO," A NITROCELLULOSE LACQUER INVENTED AND PATENTED
BY DU PONT, AND "DULUX," A SYNTHETIC RESIN ENAMEL DEVELOPED BY DU
PONT.  (FN22)  HOWEVER, DUCO AND DULUX DID NOT COME INTO COMMERCIAL USE
UNTIL 1924 AND 1931, RESPECTIVELY, AND DU PONT'S POSITION AS A
PRINCIPAL MANUFACTURER OF FINISHES WAS ATTAINED MUCH EARLIER. 

DU PONT FIRST ASSUMED A LEADING POSITION IN THE AUTOMOTIVE FINISH
FIELD WITH ITS ACQUISITION, IN 1918, OF A MAJORITY OF STOCK OF THE
FLINT VARNISH & COLOR WORKS AT FLINT, MICHIGAN.  AT THAT TIME, AND FOR
SOME YEARS BEFORE, FLINT SUPPLIED THE FINISHES USED ON ALL GENERAL
MOTORS' CARS EXCEPT CADILLAC, AND ALSO FOR MANY OTHER AUTOMOBILE
COMPANIES.  DU PONT'S ACQUISITION OF GENERAL MOTORS' STOCK IN 1917-1919
DID NOT INFLUENCE THE GENERAL MOTORS' DIVISIONS IN PURCHASING FROM
FLINT.  IN 1921, FLINT LOST ONE-HALF OF THE OAKLAND BUSINESS AND, IN
1923, A SUBSTANTIAL PORTION OF THE BUSINESS AT BUICK, OAKLAND AND
OLDSMOBILE.  126 F. SUPP., AT 288. 

THE INVENTION AND DEVELOPMENT OF DUCO IN THE EARLY 1920'S REPRESENTED
A SIGNIFICANT TECHNOLOGICAL ADVANCE.  AUTOMOBILES PREVIOUSLY HAD BEEN
FINISHED BY APPLYING NUMEROUS COATS OF VARNISH.  THE FINISHING PROCESS
TOOK FROM 12 TO 33 DAYS, AND THE STORAGE SPACE AND WORKING CAPITAL TIED
UP IN OTHERWISE COMPLETED CARS WERE IMMENSE.  THE LIFE EXPECTANCY OF
VARNISH FINISHES WAS LESS THAN A YEAR.  IN DECEMBER 1921, GENERAL
MOTORS CREATED A PAINT AND ENAMEL COMMITTEE WHICH CONTACTED NUMEROUS
PAINT MANUFACTURERS IN AN ATTEMPT TO FIND A QUICKER DRYING AND MORE
DURABLE FINISH. 

MEANWHILE, DU PONT HAD BEEN DOING PIONEERING WORK IN NITROCELLULOSE
LACQUERS.  IN 1920, A DU PONT EMPLOYEE INVENTED A QUICK DRYING AND
DURABLE LACQUER WHICH CONTAINED A LARGE AMOUNT OF FILM-FORMING SOLIDS. 
THIS PATENTED FINISH, NAMED DUCO, WAS SUBMITTED TO THE GENERAL MOTORS
PAINT AND ENAMEL COMMITTEE IN 1922 TO BE TESTED ALONG WITH FINISHES OF
OTHER MANUFACTURERS.  AFTER TWO YEARS OF TESTING AND IMPROVEMENT, THE
PAINT AND ENAMEL COMMITTEE BECAME SATISFIED THAT DUCO WAS FAR SUPERIOR
TO ANY OTHER PRODUCT OR ANY OTHER METHOD OF FINISHING AUTOMOBILES THEN
AVAILABLE. 

THE GRADUAL ADOPTION OF DUCO BY SOME OF THE GENERAL MOTORS' CAR
DIVISIONS, VIEWED IN CONJUNCTION WITH ITS PROVED SUPERIORITY AS AN AUTO
FINISH, ILLUSTRATES THE INDEPENDENT BUYING OF EACH DIVISION AND
DEMONSTRATES THAT DUCO MADE ITS WAY ON ITS OWN MERITS.  OAKLAND (NOW
PONTIAC) FIRST ADOPTED DUCO FOR USE ON ITS OPEN CARS IN 1924.  THE NEW
FINISH WAS AN IMMENSE SUCCESS AND WAS USED ON ALL OAKLAND CARS THE
FOLLOWING YEAR.  BUICK AND CHEVROLET ADOPTED DUCO IN 1925, BUT
CADILLAC, WHICH HAD OFFERED IT AS AN OPTIONAL FINISH IN 1925, DID NOT
ABANDON VARNISH FOR DUCO UNTIL 1926.  (FN23) 

FROM THE BEGINNING, GENERAL MOTORS CONTINUED TO LOOK FOR COMPETITIVE
MATERIALS.  LETTERS WERE SENT TO OTHER MANUFACTURERS URGING THEM TO
SUBMIT SAMPLES OF THEIR PYROXYLIN PAINT FOR TESTING.  UNTIL 1927, NONE
OF THE COMPETING LACQUERS WAS COMPARABLE IN QUALITY TO DUCO.  BUT THE
STRENUOUS EFFORTS BY GENERAL MOTORS TO DEVELOP COMPETITIVE SOURCES OF
LACQUER EVENTUALLY WORKED A SUBSTANTIAL CHANGE IN THE DU PONT
POSITION.  OLDSMOBILE AND CADILLAC SWITCHED TO A COMPETITOR, RINSHED
MASON, IN 1927, AND HAVE CONTINUED TO BUY ALMOST EXCLUSIVELY FROM THAT
COMPANY EVER SINCE.  CHEVROLET, BUICK AND PONTIAC CONTINUED TO BUY
DUCO, PARTLY BECAUSE OF BETTER SERVICE FROM NEARBY DU PONT PLANTS, AND
PARTLY BECAUSE REPEATED TESTING FAILED TO DISCLOSE ANY LACQUER SUPERIOR
TO DUCO. 

FINALLY, THE SUCCESS OF DUCO HAS NEVER BEEN CONFINED TO THE GENERAL
MOTORS' CAR DIVISIONS.  IN 1924 AND 1925, NEARLY ALL CAR MANUFACTURERS
ABANDONED VARNISH FOR DUCO.  BY THE END OF 1925, ALL CARS, EXCEPT FORD
AND CADILLAC, WERE USING DUCO.  NASH, HUDSON, STUDEBAKER, PACKARD AND
WILLYS HAVE BOUGHT, AND STILL BUY, DUCO IN SUBSTANTIAL AMOUNTS FROM DU
PONT.  CHRYSLER BOUGHT DUCO IN LARGE VOLUME UNTIL THE EARLY 1930'S
WHEN, IN PURSUANCE OF A POLICY TO OBTAIN SUPPLIERS TO WHOM IT WOULD BE
THE MOST IMPORTANT CUSTOMER, IT CONCENTRATED ITS PURCHASES ON ONE
COMPANY, PITTSBURGH PLATE GLASS.  FORD HAS CHOSEN TO MAKE A LARGE PART
OF ITS OWN REQUIREMENTS.  DURING THE 1920'S, WHEN FORD WAS LOSING ITS
LEADERSHIP IN THE LOW-PRICED FIELD TO CHEVROLET, IT CONTINUED TO FINISH
ITS CARS IN BLACK JAPAN.  MR. FORD IS REPORTED TO HAVE SAID, "PAINT
THEM ANY COLOR, AS LONG AS THEY ARE BLACK."  FINALLY, IN THE 1930'S,
FORD WAS FORCED TO SHIFT TO A SYNTHETIC ENAMEL FINISH OF ITS OWN
MANUFACTURE.  DURING THIS TRANSITION PERIOD, DU PONT SOLD FORD A
SUBSTANTIAL AMOUNT OF FINISHES.  IN 1935, FORD WAS MAKING HALF AND
BUYING HALF FROM DU PONT; BY 1937, FORD WAS MAKING THREE-FOURTHS AND
BUYING ONE-FOURTH FROM DU PONT.  IN 1938, HENRY FORD "ISSUED
INSTRUCTIONS THAT THE FORD MOTOR COMPANY WAS NOT TO PURCHASE ANY MORE
MATERIAL FROM THE DU PONT COMPANY."  FROM THAT TIME UNTIL HENRY FORD II
BECAME ACTIVE IN FORD MANAGEMENT, PURCHASES FROM DU PONT PRACTICALLY
CEASED.  SINCE THEN, FORD HAS PURCHASED FINISHES FROM DU PONT IN VERY
SUBSTANTIAL AMOUNTS. 

GENERAL MOTORS HAS CONTINUED TO TEST PAINTS ON THOUSANDS OF CARS
ANNUALLY.  DU PONT HAS RETAINED ITS POSITION AS PRIMARY LACQUER
SUPPLIER TO SEVERAL GENERAL MOTORS' DIVISIONS BECAUSE THESE DIVISIONS
HAVE FELT THAT DUCO BEST FITS THEIR NEEDS.  KETTERING, WHO WAS A LEADER
IN GENERAL MOTORS' RESEARCH ACTIVITIES AND WHO HAD BEEN ACTIVE IN THE
TESTING AND DEVELOPMENT OF PYROXYLIN LACQUERS, TESTIFIED THAT "ONE OF
THE REASONS" WHY GENERAL MOTORS' CARS HAD A HIGHER RESALE VALUE THAN
COMPARABLE CARS "IN A USED CAR LOT" "IS THE PAINT." 

AS THE DISTRICT COURT FOUND, "IN VIEW OF ALL THE EVIDENCE OF RECORD,
THE ONLY REASONABLE CONCLUSION IS THAT DU PONT HAS CONTINUED TO SELL
DUCO IN SUBSTANTIAL QUANTITIES TO GENERAL MOTORS ONLY BECAUSE GENERAL
MOTORS BELIEVES SUCH PURCHASES BEST FIT ITS NEEDS."  126 F. SUPP., AT
296. 

THE SECOND LARGEST ITEM WHICH GENERAL MOTORS BUYS FROM DU PONT IS
DULUX, A SYNTHETIC ENAMEL FINISH USED ON REFRIGERATORS AND OTHER
APPLIANCES.  PRIOR TO THE DEVELOPMENT OF DULUX, DUCO WAS WIDELY USED AS
A FINISH FOR REFRIGERATORS.  HOWEVER, IN 1927, DUCO BEGAN TO BE
REPLACED BY PORCELAIN, PARTICULARLY AT FRIGIDAIRE, A GENERAL MOTORS'
APPLIANCE DIVISION.  IN 1930 AND 1931, IN COLLABORATION WITH GENERAL
ELECTRIC, DU PONT DEVELOPED DULUX, A GREATLY SUPERIOR AND CHEAPER
PRODUCT.  SINCE ITS DEVELOPMENT, DULUX HAS BEEN USED EXCLUSIVELY BY ALL
THE MAJOR MANUFACTURERS OF REFRIGERATORS AND OTHER APPLIANCES - GENERAL
ELECTRIC, WESTINGHOUSE, CROSLEY, AND MANY OTHERS - EXCEPT FRIGIDAIRE,
WHICH CONTINUES TO FINISH PART OF ITS REFRIGERATORS WITH PORCELAIN. 
DISINTERESTED WITNESSES TESTIFIED AS TO THE SUPERIOR QUALITY AND
SERVICE WHICH HAS LED THEM TO CONTINUE TO BUY DULUX.  (FN24) THE
DISTRICT COURT DID NOT ERR IN CONCLUDING THAT DULUX:    "IS APPARENTLY
AN IDEAL REFRIGERATOR FINISH AND IS WIDELY USED BY A NUMBER OF MAJOR
MANUFACTURERS OTHER THAN GENERAL MOTORS.  SEVERAL REPRESENTATIVES OF
COMPETITIVE REFRIGERATOR MANUFACTURERS TESTIFIED THAT THEY PURCHASED
100% OF THEIR REQUIREMENTS FROM DU PONT.  THERE IS NO EVIDENCE THAT
GENERAL MOTORS PURCHASED FROM DU PONT FOR ANY REASON OTHER THAN THOSE
THAT PROMPTED ITS COMPETITORS TO BUY DULUX FROM DU PONT - EXCELLENCE OF
PRODUCT, FAIR PRICE AND CONTINUING QUALITY OF SERVICE."  126 F. SUPP.,
AT 296. 

THE COURT FAILS TO NOTE THAT DU PONT'S EFFORTS TO SELL PAINTS OTHER
THAN DUCO AND DULUX TO GENERAL MOTORS HAVE MET WITH CONSIDERABLY LESS
SUCCESS.  DU PONT DOES SELL SUBSTANTIAL AMOUNTS OF AUTOMOTIVE
UNDERCOATS TO CHEVROLET AND BUICK BUT IT HAS FAILED, DESPITE CONTINUED
SALES EFFORTS, TO CHANGE THE PREFERENCE OF FISHER BODY, THE LARGEST
PURCHASER OF UNDERCOATS, FOR A COMPETITOR'S UNDERCOAT.  THE SUCCESSES
AND FAILURE OF OTHER DU PONT FINISH PRODUCTS AT VARIOUS GENERAL MOTORS'
DIVISIONS EMPHASIZE THE INDEPENDENT BUYING OF EACH DIVISION AND NEGATE
THE NOTION THAT INFLUENCE OR COERCION IS RESPONSIBLE FOR WHAT PURCHASES
DO OCCUR.  FRIGIDAIRE USES LARGE QUANTITIES OF BLACK FINISHING AND
MACHINE VARNISH, BUT HAS NOT BOUGHT THESE PRODUCTS FROM DU PONT SINCE
1926.  AT AC SPARK PLUG DIVISION, LOCATED IN FLINT, MICHIGAN, WHERE DU
PONT HAS A FINISHES PLANT, DU PONT HAS BEEN CONSISTENTLY SUCCESSFUL IN
SELLING A SUBSTANTIAL VOLUME OF THE FINISHES USED BY THAT DIVISION. 
DELCO-REMY DIVISION, HOWEVER, PURCHASES MOST OF ITS REQUIREMENTS OF
INSULATING VARNISH FROM DU PONT'S COMPETITORS.  THE ELECTROMOTIVE
DIVISION PREFERS A COMPETITIVE LACQUER FOR THE INTERIOR FINISH OF ITS
LOCOMOTIVES, BUT USES DUCO ON THE EXTERIOR BECAUSE THE RAILROADS, MOST
OF WHICH USE DUCO FOR THE EXTERIOR OF THE BALANCE OF THE TRAIN, SPECIFY
THAT FINISH.  AT GUIDE LAMP DIVISION, DU PONT DEVELOPED AND STILL
SUPPLIES A FINISH FOR THE INSIDE OF HEADLIGHT REFLECTORS, BUT A
COMPETITOR DEVELOPED, AND HAS KEPT, THAT DIVISION'S SUBSTANTIAL PRIMER
BUSINESS.  AT THE INLAND DIVISION, WHICH PRODUCES STEERING WHEELS, DU
PONT HAD SOME OF THE BUSINESS AT ONE TIME, BUT HAS BEEN COMPLETELY
SUPPLANTED BY A COMPETITOR OFFERING BETTER SERVICE. 

THE DU PONT EXPERIENCE AT THE PACKARD ELECTRIC DIVISION, WHICH USES
LARGE QUANTITIES OF HIGH AND LOW TENSION CABLE LACQUER, IS
ILLUSTRATIVE.  UNTIL 1932, PACKARD ELECTRIC WAS A SEPARATE COMPANY
WHOLLY UNRELATED TO GENERAL MOTORS, AND DU PONT WAS A PRINCIPAL
SUPPLIER OF LOW TENSION LACQUER AND THE SOLE SUPPLIER OF BLACK HIGH
TENSION LACQUER.  NOW, AS A DIVISION OF GENERAL MOTORS, PACKARD
ELECTRIC PURCHASES ITS ENTIRE REQUIREMENTS OF HIGH TENSION LACQUER FROM
DU PONT COMPETITORS, AND PRODUCES ITS OWN LOW TENSION LACQUER FROM FILM
SCRAP BOUGHT FROM DU PONT COMPETITORS. 

THE DISTRICT COURT DID NOT ERR IN CONCLUDING, ON THE BASIS OF THIS
EVIDENCE, THAT DU PONT'S SUCCESS IN SELLING GENERAL MOTORS A
SUBSTANTIAL PORTION OF ITS PAINT REQUIREMENTS WAS DUE TO THE SUPERIOR
QUALITY OF DUCO AND DULUX AND TO DU PONT'S CONTINUING RESEARCH AND
OUTSTANDING SERVICE, AND THAT "DU PONT'S POSITION WAS AT ALL TIMES A
MATTER OF SALES EFFORT AND KEEPING GENERAL MOTORS SATISFIED.  THERE IS
NO EVIDENCE THAT GENERAL MOTORS OR ANY DIVISION OF GENERAL MOTORS WAS
EVER PREVENTED BY DU PONT FROM USING A FINISH MANUFACTURED BY ONE OF DU
PONT'S COMPETITORS; NOR IS THERE ANY EVIDENCE THAT GENERAL MOTORS HAS
SUFFERED COMPETITIVELY FROM ITS SUBSTANTIAL USE OF DUCO."  126 F.
SUPP., AT 296. 

2.  FABRICS.  - THE PRINCIPAL FABRICS WHICH DU PONT HAS SOLD TO
GENERAL MOTORS ARE IMITATION LEATHER (DU PONT'S "FABRIKOID" AND
"FABRILITE") AND TOP MATERIAL FOR OPEN CARS AND CONVERTIBLES (DU PONT'S
"PONTOP," "EVERBRIGHT" AND "TEAL").  (FN25)  ITS SALES OF THESE
MATERIALS TO GENERAL MOTORS IN 1947 TOTALED $3,369,000, OR ABOUT 38.5%
OF GENERAL MOTORS' TOTAL PURCHASES OF SUCH MATERIALS.  IN EARLIER
YEARS, BEFORE CLOSED CARS WITH ALL METAL TOPS CAME TO PREDOMINATE,
THESE MATERIALS CONSTITUTED A LARGER PROPORTION OF THE TOTAL FABRICS
USED IN AN AUTOMOBILE THAN THEY DO TODAY.  BY 1946 THEY AVERAGED, APART
FROM THE TOP MATERIAL FOR CONVERTIBLES, ONLY ABOUT 1.6 YARDS, COSTING
ABOUT $2.22 PER CAR.  THEY ARE USED PRINCIPALLY FOR SEAT TOPS AND
BACKS, KICK PADS, REAR SHELVES, ETC.  DU PONT DOES NOT MANUFACTURE THE
COTTON AND WOOL PRODUCTS OF WHICH MOST OF THE UPHOLSTERY IS COMPOSED. 

DU PONT ENTERED THE MANUFACTURE OF COATED FABRICS IN 1910, WHEN IT
PURCHASED THE FABRIKOID COMPANY OF NEWBURGH, NEW YORK.  "ARTIFICIAL
LEATHER," AS IT WAS THEN KNOWN, WAS OF POOR QUALITY AND HAD VERY
LIMITED AREAS OF ACCEPTANCE.  AS DU PONT SUCCEEDED IN IMPROVING BOTH
ITS QUALITY AND APPEARANCE, ITS USE RAPIDLY BROADENED.  BY MID-1913, DU
PON FABRIKOID, A PYROXYLIN-COATED FABRIC, HAD BEEN ACCEPTED BY THE
AUTOMOBILE INDUSTRY FOR UPHOLSTERY AND INTERIOR TRIM.  THREE YEARS
LATER, IN 1916, ALMOST EVERY AUTOMOBILE COMPANY WAS A PURCHASER OF
FABRIKOID, AND A CONTEMPORARY DU PONT ESTIMATE IN THAT YEAR STATED THAT
60% OF ALL CARS PRODUCED IN THE UNITED STATES WOULD BE EQUIPPED WITH
FABRIKOID.  IN THAT SAME YEAR, DU PONT ROUNDED OUT ITS LINE OF FABRICS
BY ACQUIRING THE FAIRFIELD RUBBER COMPANY, A MANUFACTURER OF RUBBER
COATED FABRICS.  DU PONT THUS HAD ACHIEVED, BEFORE IT PURCHASED ITS
GENERAL MOTORS' STOCK, A LEADING POSITION IN THE AUTOMOTIVE FABRIC
FIELD.  BEFORE 1917, IT WAS SUPPLYING SUBSTANTIALLY ALL OF THE COATED
FABRICS REQUIREMENTS AT CHEVROLET AND OLDSMOBILE, ABOUT HALF OF THE
REQUIREMENTS AT BUICK, AND ABOUT A THIRD OF THE REQUIREMENTS AT
OAKLAND.  AT THE CADILLAC DIVISION, DU PONT SUPPLIED ALL OF THE COATED
FABRICS FOR INTERIOR TRIM BUT NONE OF THE TOP MATERIAL.  126 F. SUPP.,
AT 296-297. 

ALTHOUGH THERE HAVE BEEN VARIATIONS FROM YEAR TO YEAR AND FROM ONE
CAR DIVISION TO ANOTHER IN RESPONSE TO COMPETITIVE CONSIDERATIONS, DU
PONT GENERALLY HAS MAINTAINED ITS PRE-1917 POSITION AS THE PRINCIPAL
SUPPLIER OF COATED AND COMBINED FABRICS TO GENERAL MOTORS.  IN 1926,
GENERAL MOTORS PURCHASED ABOUT 55.5% OF THESE FABRICS FROM DU PONT,
LARGELY BECAUSE CHEVROLET SWITCHED ENTIRELY TO DU PONT AFTER AN
UNFORTUNATE EXPERIENCE WITH COMPETITIVE PRODUCTS DURING THE PRECEDING
YEAR.  BY 1930, THE PROPORTION HAD DECLINED TO ABOUT 31.5%, AND DU PONT
WAS SELLING MORE FABRICS TO FORD THAN TO GENERAL MOTORS.  AT THE TIME
OF SUIT, DU PONT'S SAHRE HAD INCREASED TO 38.5%, THE REMAINDER BEING
SUPPLIED BY DU PONT'S COMPETITORS. 

IN ADDITION TO THE MASS OF EVIDENCE SUPPORTING THE DISTRICT COURT'S
FINDING THAT "SUCH PURCHASES OF FABRICS AS THE GENERAL MOTORS DIVISIONS
HAVE MADE FROM DU PONT FROM TIME TO TIME WERE BASED UPON EACH
DIVISION'S EXERCISE OF ITS BUSINESS JUDGMENT AND ARE NOT THE RESULT OF
DU PONT DOMINATION," 126 F. SUPP., AT 301, THE RECORD CLEARLY INDICATES
THAT DU PONT'S FABRICS CAN AND HAVE MADE THEIR WAY IN THE AUTOMOTIVE
INDUSTRY ON THEIR MERITS.  PRIOR TO THE EARLY 1920'S, DU PONT WAS THE
PRINCIPAL SUPPLIER OF COATED FABRICS TO ALL THREE OF THE THEN MAJOR
PRODUCERS - FORD, WILLYS-OVERLAND AND GENERAL MOTORS.  AFTER FORD AND
WILLYS BEGAN TO PRODUCE THEIR OWN COATED FABRICS THEY STILL TURNED TO
DU PONT FOR MUCH OF WHAT THEY COULD NOT PRODUCE.  CHRYSLER PURCHASED
SUBSTANTIAL AMOUNTS FROM DU PONT UNTIL, IN THE EARLY 1930'S, IT
EMBARKED ON ITS POLICY OF ONE PRINCIPAL SUPPLIER FOR EACH PRODUCT AND
CHOSE TEXTILEATHER, A DU PONT COMPETITOR.  DU PONT HAS CONTINUED TO BE
FORD'S LARGEST SUPPLIER FOR THE MATERIAL WHICH IT DOES NOT MANUFACTURE
FOR ITSELF.  DU PONT LIKEWISE HAS SUPPLIED, OVER THE YEARS, A
CONSIDERABLE PART OF THE COATED AND COMBINED FABRICS OF MOST OF THE
SMALLER AUTOMOBILE COMPANIES. 

THE DISTRICT COURT DID NOT ERR IN CONCLUDING THAT "DU PONT, THE
REDORD SHOWS, HAS MAINTAINED ITS POSITION AS THE PRINCIPAL FABRIC
SUPPLIER TO GENERAL MOTORS THROUGH ITS EARLY LEADERSHIP IN THE FIELD
AND BY CONCENTRATING UPON SATISFACTORILY MEETING GENERAL MOTORS'
CHANGING REQUIREMENTS AS TO QUALITY, SERVICE AND DELIVERY."  126 F.
SUPP., AT 301. 

3.  OTHER PRODUCTS.  - THE COURT CONCLUDES ONLY THAT DU PONT HAS BEEN
GIVEN AN UNLAWFUL PREFERENCE WITH RESPECT TO PAINTS AND FABRICS.  BY
LIMITING THE ISSUE TO THESE PRODUCTS, IT ELIMINATES FROM DESERVED
CONSIDERATION THOSE PRODUCTS WHICH GENERAL MOTORS DOES NOT BUY IN LARGE
QUANTITIES OR PROPORTIONS FROM DU PONT.  (FN26)  YET THE LOGIC OF THE
COURT'S ARGUMENT - THAT THE STOCK RELATIONSHIP BETWEEN DU PONT AND
GENERAL MOTORS INEVITABLY HAS OR WILL RESULT IN A PREFERENCE FOR DU
PONT PRODUCTS - REQUIRES CONSIDERATION OF THE TOTAL COMMERCIAL
RELATIONS BETWEEN THE TWO COMPANIES.  DU PONT "INFLUENCE," IF THERE
WERE ANY, WOULD BE EXPECTED TO APPLY TO ALL PRODUCTS WHICH DU PONT
MAKES AND WHICH GENERAL MOTORS BUYS. 

HOWEVER, THE EVIDENCE SHOWS THAT DU PONT HAS ATTEMPTED TO SELL TO THE
VARIOUS GENERAL MOTORS' DIVISIONS A WIDE RANGE OF PRODUCTS IN ADDITION
TO PAINT AND FABRICS, AND THAT IT HAS SUCCEEDED IN DOING SO ONLY WHEN
THESE DIVISIONS, EXERCISING THEIR OWN INDEPENDENT BUSINESS JUDGMENT,
HAVE DECIDED ON THE BASIS OF QUALITY, SERVICE AND PRICE THAT THEIR
ECONOMIC INTERESTS WOULD BEST BE SERVED BY PURCHASING FROM DU PONT. 
SIX SUCH GROUPS OF PRODUCTS WERE CONSIDERED IN DETAIL BY THE DISTRICT
COURT:  PLASTICS, BRAKE FLUID, CASEHARDENING MATERIALS, ELECTROPLATING
MATERIALS, SAFETY GLASS, AND SYNTHETIC RUBBER AND RUBBER CHEMICALS. 
126 F. SUPP., AT 319-324.  A FEW EXAMPLES DRAWN FROM THE FINDINGS WILL
SUFFICE. 

DU PONT'S SALES TO GENERAL MOTORS OF CELLULOID (DU PONT'S "PYRALIN"),
USED AS WINDOWS IN THE SIDE CURTAINS OF EARLY AUTOMOBILES, INITIALLY
DECLINED IN 1918 AFTER THE STOCK PURCHASE, AND ONLY REVIVED WHEN AN
IMPROVED PRODUCT WAS ADOPTED BY ALL THE LARGE AUTO MANUFACTURERS. 
INSTEAD OF PURCHASING BRAKE FLUID AND SAFETY GLASS FROM DU PONT,
GENERAL MOTORS EMBARKED, DURING THE 1930'S, ON ITS OWN PRODUCTION OF
THESE SUBSTANTIAL ITEMS.  WITH RESPECT TO CASEHARDENING MATERIALS,
GENERAL MOTORS HAS PURCHASED LESS THAN HALF OF ITS REQUIREMENTS FROM DU
PONT, WHILE OTHER AUTO MANUFACTURERS HAVE PURCHASED AMOUNTS LARGER IN
PROPORTION AND QUANTITY.  ALTHOUGH DU PONT'S NEW ELECTROPLATING
PROCESSES WERE WIDELY ADOPTED IN THE AUTOMOBILE AND OTHER INDUSTRIES IN
THE 1930'S ONLY CADILLAC HAS USED DU PONT'S PROCESSES EXCLUSIVELY,
OLDSMOBILE AND PONTIAC HAVE USED IT OCCASIONALLY, AND CHEVROLET AND
BUICK NEVER HAVE USED IT EXCEPT FOR BRIEF PERIODS.  NEOPRENE, A
SYNTHETIC RUBBER DEVELOPED BY DU PONT, HAS BEEN USED TO A MUCH GREATER
EXTENT BY CHRYSLER AND FORD THAN BY GENERAL MOTORS.  CHRYSLER ALSO
USES, AND HELPED DEVELOP, DU PONT'S SYNTHETIC RUBBER ADHESIVE FOR BRAKE
LININGS, BUT THE GENERAL MOTORS' DIVISIONS PREFER A MORE EXPENSIVE TYPE
OF SYNTHETIC RUBBER. 

THE RECORD SUPPORTS THE CONCLUSION OF THE DISTRICT COURT: 

"ALL OF THE EVIDENCE BEARING UPON DU PONT'S EFFORTS TO SELL THESE
VARIOUS MISCELLANEOUS PRODUCTS TO GENERAL MOTORS SUPPORTS A FINDING
THAT THE LATTER BOUGHT OR REFUSED TO BUY SOLELY IN ACCORDANCE WITH THE
DICTATES OF ITS OWN PURCHASING JUDGMENT.  THERE IS NO EVIDENCE THAT
GENERAL MOTORS WAS CONSTRAINED TO FAVOR, OR BUY, A PRODUCT SOLELY
BECAUSE IT WAS OFFERED BY DU PONT.  ON THE OTHER HAND, THE RECORD
DISCLOSES NUMEROUS INSTANCES IN WHICH GENERAL MOTORS REJECTED DU PONT'S
PRODUCTS IN FAVOR OF THOSE OF ONE OF ITS COMPETITORS.  THE VARIETY OF
SITUATIONS AND CIRCUMSTANCES IN WHICH SUCH REJECTIONS OCCURRED
SATISFIES THE COURT THAT THERE WAS NO LIMITATION WHATSOEVER UPON
GENERAL MOTORS' FREEDOM TO BUY OR TO REFUSE TO BUY FROM DU PONT AS IT
PLEASED."  126 F. SUPP., AT 324. 

EVIDENCE RELIED ON BY THE COURT.  - THE COURT, DISREGARDING THE MASS
OF EVIDENCE SUPPORTING THE DISTRICT COURT'S CONCLUSION THAT GENERAL
MOTORS PURCHASED DU PONT PAINT AND FABRICS SOLELY BECAUSE OF THEIR
COMPETITIVE MERIT, RELIES FOR ITS CONTRARY CONCLUSION ON PASSAGES DRAWN
FROM SEVERAL DOCUMENTS WRITTEN DURING THE YEARS 1918-1926, AND ON THE
LOGICAL FALLACY THAT BECAUSE DU PONT OVER A LONG PERIOD SUPPLIED A
SUBSTANTIAL PORTION OF GENERAL MOTORS' REQUIREMENTS OF PAINT AND
FABRICS, ITS POSITION MUST HAVE BEEN OBTAINED BY MISUSE OF ITS STOCK
INTEREST RATHER THAN COMPETITIVE CONSIDERATIONS. 

THE ISOLATED INSTANCES OF ALLEGED PRESSURE OR INTENT TO OBTAIN
NONCOMPETITIVE PREFERENCES ARE FOUR:  (1) THE RASKOB REPORT OF DECEMBER
1917; (2) SEVERAL LETTERS OF J.A. HASKELL, WRITTEN DURING 1918-1920;
(3) CERTAIN REPORTS AND LETTERS OF PIERRE AND LAMMOT DU PONT DURING
1921-1924; AND (4) A 1926 LETTER OF JOHN L. PRATT.  PASSAGES DRAWN FROM
THESE 1918-1926 DOCUMENTS DO NOT JUSTIFY THE CONCLUSION REACHED BY THE
COURT.  EACH OF THEM IS A MATTER OF DISPUTED SIGNIFICANCE WHICH CANNOT
BE EVALUATED WITHOUT PASSING ON THE MOTIVATION AND INTENT OF THE
AUTHOR.  EACH FAILED TO ACHIEVE ITS SPECIFIC OBJECT.  READ IN THE
CONTEXT OF THE SITUATIONS TO WHICH THEY WERE ADDRESSED, EACH IS
ENTIRELY CONSISTENT WITH THE FINDING OF THE DISTRICT COURT THAT,
ALTHOUGH DU PONT WAS TRYING TO GET AS MUCH GENERAL MOTORS' BUSINESS AS
IT COULD, THERE WAS NO RESTRICTION ON GENERAL MOTORS' FREEDOM TO BUY AS
IT CHOSE, AND THAT GENERAL MOTORS' BUYERS DID NOT REGARD THEMSELVES AS
IN ANY WAY LIMITED.  (FN27)  MOREOVER, EVEN IF ISOLATED PARAGRAPHS IN
THESE DOCUMENTS, TAKEN FROM THEIR CONTEXT, ARE GIVEN SOME SIGNIFICANCE,
AND THE OTHER EVIDENCE RELATING TO THE PERIOD FROM 1918 TO 1926 IS
ENTIRELY IGNORED, ALL OF THE EVIDENCE AFTER 1926 AFFIRMATIVELY
ESTABLISHES WITHOUT ESSENTIAL CONTRADICTION THAT DU PONT DID NOT USE
ITS STOCK INTEREST TO RECEIVE ANY PREFERENTIAL TREATMENT FROM GENERAL
MOTORS.    NOR CAN PRESENT ILLEGALITY BE PRESUMED FROM THE BARE FACT
THAT DU PONT HAS CONTINUED TO MAKE SUBSTANTIAL SALES OF SEVERAL
PRODUCTS TO GENERAL MOTORS.  (FN28)  IN THE FIRST PLACE, THE RECORD
AFFIRMATIVELY SHOWS THAT THE NEW PRODUCTS WHICH DU PONT HAS SOLD TO
GENERAL MOTORS SINCE 1926 HAVE MADE THEIR WAY, AT GENERAL MOTORS AS
ELSEWHERE, ON THEIR MERITS.  SALES OF DUCO, DULUX, FABRILITE AND TEAL
ARE NOT ATTRIBUTABLE IN ANY WAY TO DEALINGS IN THE EARLIER PERIOD. 
SECONDLY, THE COURT'S PRESUMPTION IS BASED ON THE FACT THAT DU PONT
DOES NOT SELL TO ALL OTHER AUTOMOBILE MANUFACTURERS IN THE SAME
PROPORTION AS IT DOES TO GENERAL MOTORS.  BUT THERE IS NO REASON WHY IT
SHOULD - THE GOVERNMENT HAS NOT SHOWN THAT SELLERS NORMALLY SELL TO ALL
MEMBERS OF AN INDUSTRY IN THE SAME PROPORTION.  IN ANY EVENT, THE
RECORD FULLY EXPLAINS THE DISPROPORTION.  SINCE 1930, DU PONT'S SALES
TO OTHER MEMBERS OF THE INDUSTRY HAVE PROPORTIONATELY DECLINED, LARGELY
BECAUSE FORD HAS CHOSEN TO MAKE THE MAJOR SHARE OF ITS REQUIREMENTS OF
PAINT AND FABRICS, AND BECAUSE CHRYSLER HAS FOLLOWED THE POLICY OF
SELECTING A SINGLE SUPPLIER TO WHOM IT CAN BE THE MOST IMPORTANT
CUSTOMER.  THE FACT IS THAT DU PONT HAS CONTINUED TO SELL IN
SUBSTANTIAL AMOUNTS TO THE SMALLER MEMBERS OF THE AUTOMOBILE INDUSTRY. 
THE GROWTH IN THE DOMINANCE OF GENERAL MOTORS, FORD AND CHRYSLER -
COMPANIES WHICH TOGETHER ACCOUNT FOR MORE THAN 85% OF AUTOMOBILE
PRODUCTION - WHEN COMBINED WITH THE POLICIES ADOPTED BY FORD AND
CHRYSLER, ADEQUATELY EXPLAINS WHY DU PONT SELLS A LARGER PROPORTION OF
PAINT AND FABRICS TO GENERAL MOTORS THAN IT DOES TO THE INDUSTRY AS A
WHOLE. 

IT IS TRUE THAT SEC. 7 OF THE CLAYTON ACT DOES NOT REQUIRE PROOF OF
ACTUAL ANTICOMPETITIVE EFFORTS OR PROOF OF AN INTENT TO RESTRAIN
TRADE.  BUT THESE MATTERS BECOME CRUCIAL WHEN THE COURT RESTS ITS
CONCLUSION THAT DU PONT'S STOCK INTEREST VIOLATES THE ACT ON EVIDENCE
RELATING SOLELY TO AN ALLEGED DU PONT INTENT TO OBTAIN A NONCOMPETITIVE
PREFERENCE FROM GENERAL MOTORS, AND ON A FINDING THAT SUCH A PREFERENCE
WAS ACTUALLY SECURED THROUGH THE UNLAWFUL USE OF DU PONT'S STOCK
INTEREST.  PREFERENCE AND INTENT ARE ALSO RELEVANT BECAUSE THE
GOVERNMENT HAS BROUGHT THIS CASE 30 YEARS AFTER THE EVENT.  IF NO
ACTUAL RESTRAINT HAS OCCURRED DURING THIS LONG PERIOD, THE PROBABILITY
OF A RESTRAINT IN THE FUTURE IS INDEED SLIGHT.  ESPECIALLY IS THIS SO
WHEN THE ONLY CHANGE IN RECENT YEARS HAS BEEN IN THE DIRECTION OF
DIMINISHING DU PONT'S PARTICIPATION IN GENERAL MOTORS' AFFAIRS. 

RULE 52(A) GOVERNS THIS CASE.  - THE FOREGOING SUMMARY OF THE
EVIDENCE RELATING TO GENERAL MOTORS' PURCHASES OF PAINT AND FABRICS
FROM DU PONT, COMPARATIVELY BRIEF AS IT IS, REVEALS THAT A MULTITUDE OF
FACTUAL ISSUES UNDERLIE THIS CASE.  THE OCCURRENCE OF EVENTS, THE
REASONS WHY THESE EVENTS TOOK PLACE, AND THE MOTIVES OF THE MEN WHO
PARTICIPATED IN THEM ARE DRAWN IN QUESTION.  THE ISSUE OF CREDIBILITY
IS OF GREAT IMPORTANCE.  THE DISTRICT JUDGE HAD THE OPPORTUNITY TO
OBSERVE THE DEMEANOR OF THE WITNESSES AND TO JUDGE THEIR CREDIBILITY AT
FIRST HAND.  THUS, THIS CASE IS A PROPER ONE FOR THE APPLICATION OF THE
PRINCIPLE EMBODIED IN RULE 52(A) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, AS AMENDED, 329 U.S. 861:  "FINDINGS OF FACT SHALL NOT BE
SET ASIDE UNLESS CLEARLY ERRONEOUS, AND DUE REGARD SHALL BE GIVEN TO
THE OPPORTUNITY OF THE TRIAL COURT TO JUDGE OF THE CREDIBILITY OF THE
WITNESSES."  UNITED STATES V. OREGON MEDICAL SOCIETY, 343 U.S. 326, 330
332, 339; UNITED STATES V. YELLOW CAB CO., 338 U.S. 338, 341-342. 

THIS IS NOT A SITUATION IN WHICH ORAL TESTIMONY IS CONTRADICTED BY
CONTEMPORANEOUS DOCUMENTS.  SEE UNITED STATES V. UNITED STATES GYPSUM
CO., 333 U.S. 364.  IN THIS CASE, THE FINDINGS OF THE DISTRICT COURT
ARE SUPPORTED BOTH BY CONTEMPORANEOUS DOCUMENTS AND BY ORAL TESTIMONY. 
FOR EXAMPLE, GENERAL MOTORS' SEARCH FOR A BETTER AUTOMOTIVE FINISH, THE
SUPERIORITY OF THE PRODUCT DEVELOPED BY DU PONT, AND GENERAL MOTORS'
CONTINUOUS EFFORTS TO SECURE AN EQUALLY GOOD LACQUER FROM OTHER SOURCES
ARE ALL PROVED BY LETTERS AND REPORTS WRITTEN IN THE EARLY 1920'S AS
WELL AS BY THE ORAL TESTIMONY OF MANY WITNESSES.  SIMILARLY,
CONTEMPORANEOUS EXHIBITS PROVE THAT GENERAL MOTORS PURCHASED FABRICS
FROM DU PONT BECAUSE OF THE SUPERIORITY OF DU PONT PRODUCTS, AND THAT
ON OTHER OCCASIONS IT TURNED TO COMPETING SUPPLIERS EVEN THOUGH DU
PONT'S PRODUCT WAS JUST AS GOOD.  APPELLATE REVIEW OF DETAILED FINDINGS
BASED ON SUBSTANTIAL ORAL TESTIMONY AND CORROBORATIVE DOCUMENTS MUST BE
LIMITED TO SETTING ASIDE THOSE THAT ARE CLEARLY ERRONEOUS.  THE CAREFUL
AND DETAILED FINDINGS OF FACT OF THE DISTRICT COURT IN THIS CASE CANNOT
BE SO LABELED.  (FN29) 

B. RELEVANT MARKET. 

FINALLY, EVEN ASSUMING THE CORRECTNESS OF THE COURT'S CONCLUSION THAT
DU PONT'S COMPETITORS HAVE BEEN OR WILL BE FORECLOSED FROM GENERAL
MOTORS' PAINT AND FABRIC TRADE, IT IS STILL NECESSARY TO RESOLVE ONE
MORE ISSUE IN FAVOR OF THE GOVERNMENT IN ORDER TO REVERSE THE DISTRICT
COURT.  IT IS NECESSARY TO HOLD THAT THE GOVERNMENT PROVED THAT THIS
FORECLOSURE INVOLVES A SUBSTANTIAL SHARE OF THE RELEVANT MARKET AND
THAT IT SIGNIFICANTLY LIMITS THE COMPETITIVE OPPORTUNITIES OF OTHERS
TRADING IN THAT MARKET.  (FN30) 

THE RELEVANT MARKET IS THE "AREA OF EFFECTIVE COMPETITION" WITHIN
WHICH THE DEFENDANTS OPERATE.  STANDARD OIL CO. OF CALIFORNIA V. UNITED
STATES, 337 U.S. 293, 299-300, N. 5.  "THE PROBLEM OF DEFINING A MARKET
TURNS ON DISCOVERING PATTERNS OF TRADE WHICH ARE FOLLOWED IN
PRACTICE."  UNITED STATES V. UNITED SHOE MACHINERY CORP., 110 F. SUPP.
295, 303, AFF'D PER CURIAM, 347 U.S. 521.  "DETERMINATION OF THE
COMPETITIVE MARKET FOR COMMODITIES DEPENDS ON HOW DIFFERENT FROM ONE
ANOTHER ARE THE OFFERED COMMODITIES IN CHARACTER OR USE, HOW FAR BUYERS
WILL GO TO SUBSTITUTE ONE COMMODITY FOR ANOTHER."  UNITED STATES V.
E.I. DU PONT DE NEMOURS & CO., 351 U.S. 377, 393.  THIS DETERMINATION
IS PRIMARILY ONE OF FACT. 

THE COURT HOLDS THAT THE RELEVANT MARKET IN THIS CASE IS THE
AUTOMOTIVE MARKET FOR FINISHES AND FABRICS, AND NOT THE TOTAL
INDUSTRIAL MARKET FOR THESE PRODUCTS.  THE COURT REACHES THAT
CONCLUSION BECAUSE IN ITS VIEW "AUTOMOTIVE FINISHES AND FABRICS HAVE
SUFFICIENT PECULIAR CHARACTERISTICS AND USES TO CONSTITUTE THEM
PRODUCTS SUFFICIENTLY DISTINCT FROM ALL OTHER FINISHES AND FABRICS  ...
."  ANTE, PP. 593-594.  WE ARE NOT TOLD WHAT THESE "PECULIAR
CHARACTERISTICS" ARE.  NOTHING IS SAID ABOUT FINISHES OTHER THAN THAT
DUCO REPRESENTED AN IMPORTANT CONTRIBUTION TO THE PROCESS OF
MANUFACTURING AUTOMOBILES.  NOTHING IS SAID ABOUT FABRICS OTHER THAN
THAT SALES TO THE AUTOMOBILE INDUSTRY ARE MADE BY MEANS OF BIDS RATHER
THAN FIXED PRICE SCHEDULES.  DULUX IS INCLUDED IN THE "AUTOMOBILE"
MARKET EVEN THOUGH IT IS USED ON REFRIGERATORS AND OTHER APPLIANCES,
BUT NOT ON AUTOMOBILES.  SO ARE OTHER FINISHES AND FABRICS USED ON
DIESEL LOCOMOTIVES, ENGINES, PARTS, APPLIANCES AND OTHER PRODUCTS WHICH
GENERAL MOTORS MANUFACTURES.  ARBITRARY CONCLUSIONS ARE NOT AN ADEQUATE
SUBSTITUTE FOR ANALYSIS OF THE PERTINENT FACTS CONTAINED IN THE
RECORD. 

THE RECORD DOES NOT SHOW THAT THE FABRICS AND FINISHES USED IN THE
MANUFACTURE OF AUTOMOBILES HAVE PECULIAR CHARACTERISTICS
DIFFERENTIATING THEM FROM THE FINISHES AND FABRICS USED IN OTHER
INDUSTRIES.  WHAT EVIDENCE THERE IS IN THE RECORD AFFIRMATIVELY
INDICATES THE CONTRARY.  THE SALES OF THE FOUR PRODUCTS PRINCIPALLY
INVOLVED IN THIS CASE - DUCO, DULUX, IMITATION LEATHER, AND COATED
FABRICS - SUPPORT THIS CONCLUSION. 

DUCO WAS FIRST MARKETED NOT TO GENERAL MOTORS, BUT TO THE AUTO
REFINISHING TRADE AND TO MANUFACTURERS OF FURNITURE, BRUSH HANDLES AND
PENCILS.  IN 1927, 44% OF DU PONT'S SALES OF COLORED DUCO, AND 51.5% OF
ITS TOTAL SALES, WERE TO PURCHASERS OTHER THAN AUTO MANUFACTURERS. 
ALTHOUGH THE RECORD DOES NOT DISCLOSE EXACT FIGURES FOR ALL YEARS, IT
DOES SHOW THAT A SUBSTANTIAL PORTION OF DU PONT'S SALES OF DUCO HAVE
CONTINUED TO BE FOR NONAUTOMOTIVE USES.  (FN31) 

IT IS ALSO SIGNIFICANT THAT DUCO WAS A PATENTED PRODUCT.  PRIOR TO
THE EXPIRATION OF THE PATENT IN 1944, ONLY FIVE YEARS BEFORE THIS SUIT
WAS BROUGHT, DU PONT ISSUED OVER 250 LICENSES - TO ALL THAT APPLIED -
COVERING ITS PATENTED PROCESS.  IF DUCO IS TO BE TREATED AS A SEPARATE
MARKET SOLELY BECAUSE OF ITS INITIAL SUPERIORITY, DU PONT IS BEING
PENALIZED RATHER THAN REWARDED FOR CONTRIBUTING TO TECHNOLOGICAL
ADVANCE. 

DULUX HAS NEVER BEEN USED IN THE MANUFACTURE OF AUTOMOBILES.  IT
REPLACED DUCO AND OTHER LACQUERS AS A FINISH ON REFRIGERATORS, WASHERS,
DRYERS, AND OTHER APPLIANCES, AND CONTINUES TO HAVE WIDE USE ON
METALLIC OBJECTS REQUIRING A DURABLE FINISH.  YET THE COURT INCLUDES IT
AS A FINISH HAVING THE UNSPECIFIED BUT "PECULIAR CHARACTERISTICS"
DISTINCTIVE OF "AUTOMOTIVE FINISHES."  ANTE, P. 593. 

IN 1947, WHEN DU PONT'S SALES OF DUCO AND DULUX TO GENERAL MOTORS
TOTALED ABOUT $15,400,000, THE TOTAL NATIONAL MARKET FOR PAINTS AND
FINISHES WAS $1,248,000,000, OF WHICH ABOUT $552,000,000 WAS FOR
VARNISHES, LACQUERS, ENAMELS, JAPANS, THINNERS AND DOPES, THE KINDS OF
FINISHES SOLD PRIMARILY TO INDUSTRIAL USERS.  (FN32)  THERE IS NO
EVIDENCE IN THIS RECORD ESTABLISHING THAT THESE INDUSTRIAL FINISHES ARE
NOT COMPETITIVE WITH DUCO AND DULUX.  THERE IS CONSIDERABLE EVIDENCE
THAT MANY OF THEM ARE.  IT IS PROBABLE THAT DU PONT'S TOTAL SALES OF
FINISHES TO GENERAL MOTORS IN 1947 CONSTITUTED LESS THAN 3.5% OF ALL
SALES OF INDUSTRIAL FINISHES. 

THE RECORD ALSO SHOWS THAT THE TYPES OF FABRICS USED FOR AUTOMOBILE
TRIM AND CONVERTIBLE TOPS - IMITATION LEATHER AND COATED FABRICS - ARE
USED IN THE MANUFACTURE OF INNUMERABLE PRODUCTS, SUCH AS LUGGAGE,
FURNITURE, RAILROAD UPHOLSTERY, BOOKS, BRIEF CASES, BABY CARRIAGES,
HASSOCKS, BICYCLE SADDLES, SPORTING GOODS, FOOTWEAR, BELTS AND TABLE
MATS.  IN 1947, GENERAL MOTORS PURCHASED ABOUT $9,454,000 OF IMITATION
LEATHER AND COATED FABRICS.  OF THIS AMOUNT, $3,639,000 WAS PURCHASED
FROM DU PONT (38.5%) AND $5,815,000 FROM OVER 50 DU PONT COMPETITORS. 
SINCE DU PONT PRODUCED ABOUT 10% OF THE NATIONAL MARKET FOR THESE
PRODUCTS IN 1946, 1947 AND 1948, AND SINCE ONLY 20% OF ITS SALES WERE
TO THE AUTOMOBILE INDUSTRY, THE DU PONT SALES TO THE AUTOMOBILE
INDUSTRY CONSTITUTED ONLY ABOUT 2% OF THE TOTAL MARKET.  THE COURT
IGNORES THE RECORD BY TREATING THIS SMALL FRACTION OF THE TOTAL MARKET
AS A MARKET OF DISTINCT PRODUCTS. 

IT WILL NOT DO MERELY TO STRESS THE LARGE SIZE OF THESE TWO
CORPORATIONS.  THE FIGURES AS TO THEIR TOTAL SALES - $793,000,000 FOR
DU PONT AND $3,815,000,000 FOR GENERAL MOTORS IN 1947 - DO NOT FAIRLY
REFLECT THE VOLUME OF COMMERCE INVOLVED IN THIS CASE.  THE COMMERCE
INVOLVED HERE IS ABOUT $19,000,000 OF INDUSTRIAL FINISHES AND ABOUT
$3,700,000 OF CERTAIN INDUSTRIAL FABRICS - LESS THAN 3.5% OF THE
NATIONAL MARKET FOR INDUSTRIAL FINISHES, AND ONLY ABOUT 1.6% OF THE
NATIONAL MARKET FOR THESE FABRICS.  THE CLAYTON ACT IS NOT VIOLATED
UNLESS THE STOCK ACQUISITION SUBSTANTIALLY THREATENS THE COMPETITIVE
OPPORTUNITIES AVAILABLE TO OTHERS.  INTERNATIONAL SHOE CO. V. FEDERAL
TRADE COMMISSION, 280 U.S. 291; TRANSAMERICA CORP. V. BOARD OF
GOVERNORS, 206 F.2D 163; V. VIVAUDOU, INC. V. FEDERAL TRADE COMMISSION,
54 F.2D 273.  THE EFFECT ON THE MARKET FOR THE PRODUCT, NOT THAT ON THE
TRANSACTIONS OF THE ACQUIRED COMPANY, IS CONTROLLING.  FARGO GLASS &
PAINT CO. V. GLOBE AMERICAN CORP., 201 F.2D 534.  (FN33) 

THE COURT MIGHT BE JUSTIFIED IN HOLDING THAT PRODUCTS SOLD TO THE
AUTOMOTIVE INDUSTRY CONSTITUTE THE RELEVANT MARKET IN THE CASE OF
PRODUCTS SUCH AS CARBURETORS OR TIRES WHICH ARE SOLD PRIMARILY TO
AUTOMOBILE MANUFACTURERS.  BUT THE SALE OF DUCO, DULUX, IMITATION
LEATHER, AND COATED FABRICS IS NOT SO LIMITED. 

THE BURDEN WAS ON THE GOVERNMENT TO PROVE THAT A SUBSTANTIAL SHARE OF
THE RELEVANT MARKET WOULD, IN ALL PROBABILITY, BE AFFECTED BY DU PONT'S
23% STOCK INTEREST IN GENERAL MOTORS.  THE GOVERNMENT PROVED ONLY THAT
DU PONT'S SALES OF FINISHES AND FABRICS TO GENERAL MOTORS WERE LARGE IN
VOLUME, AND THAT GENERAL MOTORS WAS THE LEADING MANUFACTURER OF
AUTOMOBILES DURING THE LATER YEARS COVERED BY THE RECORD.  THE
GOVERNMENT DID NOT SHOW THAT THE IDENTICAL PRODUCTS WERE NOT USED ON A
LARGE SCALE FOR MANY OTHER PURPOSES IN MANY OTHER INDUSTRIES.  NOR DID
THE GOVERNMENT SHOW THAT THE AUTOMOBILE INDUSTRY IN GENERAL, OR GENERAL
MOTORS IN PARTICULAR, COMPRISED A LARGE OR SUBSTANTIAL SHARE OF THE
TOTAL MARKET.  WHAT EVIDENCE THERE IS IN THE RECORD AFFIRMATIVELY
INDICATES THAT THE PRODUCTS INVOLVED DO HAVE WIDE USE IN MANY
INDUSTRIES, AND THAT AN INSUBSTANTIAL PORTION OF THIS TOTAL MARKET
WOULD BE AFFECTED EVEN IF AN UNLAWFUL PREFERENCE EXISTED OR WERE
PROBABLE. 

FOR THE REASONS STATED, I CONCLUDE THAT SEC. 7 OF THE CLAYTON ACT,
PRIOR TO ITS AMENDMENT IN 1950, DID NOT APPLY TO VERTICAL ACQUISITIONS;
THAT THE GOVERNMENT FAILED TO PROVE THAT THERE WAS A REASONABLE
PROBABILITY AT THE TIME OF THE STOCK ACQUISITION (1917-1919) OF A
RESTRAINT OF COMMERCE OR A TENDENCY TOWARD MONOPOLY; AND THAT, IN ANY
EVENT, THE DISTRICT COURT WAS NOT CLEARLY IN ERROR IN CONCLUDING THAT
THE GOVERNMENT FAILED TO PROVE THAT DU PONT'S COMPETITORS HAVE BEEN OR
MAY BE FORECLOSED FROM A SUBSTANTIAL SHARE OF THE RELEVANT MARKET. 
ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

FN1  RONALD FABRICS CO. V. VERNEY BRUNSWICK MILLS, INC., CCH TRADE
CASES PARA. 57,514 (D.C.S.D.N.Y. 1946), DISCUSSED INFRA, N. 10, WAS A
PRIVATE ACTION FOR TREBLE DAMAGES. 

FN2  TRANSAMERICA CORP. V. BOARD OF GOVERNORS, 206 F.2D 163 (C.A. 3D
CIR. 1953), INVOLVED A SERIES OF STOCK ACQUISITIONS OVER MANY YEARS,
SOME OF WHICH TOOK PLACE AT ABOUT THE TIME OF SUIT.    FN3  SECTION 7
OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. (1946 ED.)  SEC.  18, WAS
AMENDED IN 1950 SO AS TO BROADEN ITS APPLICATION, 64 STAT. 1125, 15
U.S.C. SEC. 18.  THE AMENDMENTS, BY THEIR TERMS, WERE INAPPLICABLE TO
ACQUISITIONS MADE BEFORE 1950.  THUS THIS CASE IS GOVERNED BY THE
ORIGINAL LANGUAGE OF SEC. 7 AND NOT BY SEC. 7, AS AMENDED. 

FN4  ONE OF THE EARLIEST RULINGS OF THE FEDERAL TRADE COMMISSION WAS
THAT SEC. 7 DID NOT PROHIBIT ASSET ACQUISITIONS.  1 F.T.C. 541-542. 
THE PRIMARY PURPOSE OF THE 1950 AMENDMENTS WAS TO BRING ASSET
ACQUISITIONS WITHIN SEC. 7.  PROPONENTS OF THE 1950 AMENDMENTS ASSERTED
ON SEVERAL OCCASIONS THAT THE OMISSION OF ASSET ACQUISITIONS IN THE
ORIGINAL CLAYTON ACT HAD BEEN INADVERTENT.  SEE, E.G., 96 CONG. REC.
16443.  HOWEVER, THE LEGISLATIVE HISTORY OF THE CLAYTON ACT
DEMONSTRATES THAT THE PURPOSE OF SEC. 7 WAS TO PREVENT THE FORMATION OF
HOLDING COMPANIES AND CERTAIN EVILS PECULIAR TO STOCK ACQUISITIONS,
PARTICULARLY THE SECRECY OF OWNERSHIP.  SEE 51 CONG. REC. 9073, 14254,
14316, 14420, 14456; H.R. REP. NO. 627, 63D CONG., 2D SESS. 17; S. REP.
NO. 698, 63D CONG., 2D SESS. 13. 

FN5  THE REMARKS OF SENATOR CHILTON RELIED ON BY THE MAJORITY, ANTE,
P. 591, DO NOT INDICATE THAT HE THOUGHT THAT SEC. 7 WAS APPLICABLE TO
VERTICAL ACQUISITIONS.  HIS STATEMENTS INDICATE MERELY THAT HE THOUGHT
THAT THE RESTRAINT AND MONOPOLY CLAUSES OF SEC. 7 WERE NOT ENTIRELY
SYNONYMOUS WITH THE SUBSTANTIALLY LESSEN COMPETITION CLAUSE. 

FN6  SEE, E.G., 51 CONG. REC. 9270-9271 (REPRESENTATIVE CARLIN); ID.,
AT 9554 (REPRESENTATIVE BARKLEY); ID., AT 14254-14255 (SENATOR
CUMMINS); ID., AT 14313 (SENATOR REED); ID., AT 15856-15861 (SENATOR
WALSH); ID., AT 15940 (SENATOR NELSON); ID., AT 16001 (SENATOR
CHILTON); ID., AT 16320 (REPRESENTATIVE FLOYD). 

FN7  51 CONG. REC. 14455.  SENATOR REED HAD OFFERED AN AMENDMENT TO
THE FIRST PARAGRAPH OF SEC. 7 WHICH WOULD HAVE PREVENTED A CORPORATION
FROM ACQUIRING STOCK IN ANOTHER CORPORATION ENGAGED IN THE SAME LINE OF
BUSINESS.  THIS WAS AN ATTEMPT TO STIFFEN THE BILL IN ORDER TO RELIEVE
THE GOVERNMENT FROM PROVING THAT COMPETITION HAD BEEN SUBSTANTIALLY
LESSENED BY THE ACQUISITION, AN ELEMENT OF PROOF WHICH HE, SENATOR
CUMMINS, AND OTHERS THOUGHT WOULD BE QUITE DIFFICULT.  SEE 51 CONG.
REC. 14254-14255, 14419-14420.  SENATOR CHILTON ASKED SENATOR REED
WHETHER HIS AMENDMENT WOULD PREVENT A CORPORATION ENGAGED IN THE
MANUFACTURE OF STEEL FROM ACQUIRING STOCK IN A CORPORATION ENGAGED IN
THE PRODUCTION OF IRON ORE.  SENATOR REED REPLIED THAT HIS AMENDMENT
WOULD NOT BAR SUCH AN ACQUISITION, BUT THAT NEITHER WOULD THE BILL AS
WRITTEN: 

"BUT I CALL THE SENATOR'S ATTENTION TO THE FACT THAT IF THE
ILLUSTRATION HE USES WOULD NOT BE COVERED BY THE LANGUAGE OF MY
AMENDMENT IT CERTAINLY WOULD NOT BE COVERED BY THE LANGUAGE I SEEK TO
AMEND.  HIS ARGUMENT WOULD GO AS MUCH AGAINST THAT, AND EVEN MORE THAN
AGAINST MY AMENDMENT.  I DO NOT CLAIM THAT THIS WILL STOP EVERYTHING. 
I CLAIM THAT IT WILL BE A LONG STEP IN THAT DIRECTION."  ID., AT
14455.  NO ONE DISPUTED SENATOR REED'S INTERPRETATION OF SEC. 7. 

FN8  SEE, E.G., THE STATEMENT BY REPRESENTATIVE CARLIN, ONE OF THE
MANAGERS OF THE BILL IN THE HOUSE, TO THE EFFECT THAT THE INTERLOCKING
DIRECTORATE PROVISION CONTAINED IN SEC. 8 WOULD PREVENT A DIRECTOR OF A
CORPORATION WHICH SUPPLIED RAILROADS WITH MATERIALS FROM BECOMING A
RAILROAD DIRECTOR AND, IN EFFECT, "BUYING SUPPLIES FROM HIMSELF."  51
CONG. REC. 9272. 

FN9  SEE, E.G., F.T.C., ANN. REP. FOR FISCAL YEAR 1929, 6-7, 60,
WHERE THE COMMISSION STATED THAT IT COULD TAKE NO CORRECTIVE ACTION
UNDER THE CLAYTON ACT AGAINST LARGE CONSOLIDATIONS IN THE FOOD INDUSTRY
"EVEN THOUGH THE CONSOLIDATION WAS EFFECTED THROUGH THE ACQUISITION OR
EXCHANGE OF CAPITAL STOCK," BECAUSE "MOST OF THESE CONSOLIDATIONS AND
ACQUISITIONS WERE OF CORPORATIONS ENGAGED IN THE DISTRIBUTION OF ALLIED
BUT NONCOMPETITIVE PRODUCTS."  SEE ALSO, F.T.C., ANN. REP. FOR FISCAL
YEAR 1927, 13-15; STATEMENT BY GENERAL COUNSEL KELLEY IN HEARINGS
BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY ON H.R.
2734, 81ST CONG., 1ST AND 2D SESS. 37; REPORT OF THE FEDERAL TRADE
COMMISSION ON INTERLOCKING DIRECTORATES, H.R. DOC. NO. 652, 81ST CONG.,
2D SESS. 1. 

FN10  IN THE RONALD FABRICS CASE, A RAYON CONVERTER ALLEGED THAT A
COMPETING CORPORATION HAD RESTRAINED COMMERCE BY ACQUIRING CONTROL OF A
SOURCE OF SUPPLY OF RAYON.  THE DISTRICT COURT HELD THAT THIS
ALLEGATION STATED A CAUSE OF ACTION UNDER SEC. 7 OF THE CLAYTON ACT. 

FN11  A MINORITY IN THE SENATE, LED BY SENATORS CUMMINS AND WALSH,
SOUGHT TO STRIKE OUT THE "TEND TO CREATE A MONOPOLY" LANGUAGE OF SEC.
7.  51 CONG. REC. 14314-14316, 14319, 14459-14461.  THEY ARGUED THAT
THIS LANGUAGE WAS SUPERFLUOUS BECAUSE THE CREATION OF A MONOPOLY ALWAYS
SUBSTANTIALLY LESSENED COMPETITION, AND BECAUSE THE SHERMAN ACT
CONTAINED SIMILAR LANGUAGE, AND THAT THERE WAS A DANGER THAT THE
LANGUAGE WOULD BE CONSIDERED AS AN IMPLIED REPEAL OF THE SHERMAN ACT. 
THE FAILURE OF THESE EFFORTS TO ELIMINATE THE TENDENCY TOWARD MONOPOLY
CLAUSE (THE RESTRAINT OF COMMERCE CLAUSE HAD NOT BEEN ADDED TO SEC. 7
AT THIS TIME) INDICATES THAT THE TENDENCY TOWARD MONOPOLY CLAUSE WAS
NOT INTENDED TO BE LIMITED TO SITUATIONS ALREADY ENCOMPASSED BY THE
SUBSTANTIALLY LESSEN COMPETITION CLAUSE.  SIMILARLY, THE REMARKS OF
SENATOR CHILTON, QUOTED BY THE COURT FROM 51 CONG. REC.  16002, ANTE,
PP. 591-592, INDICATE THAT HE THOUGHT THE TENDENCY TOWARD MONOPOLY AND
RESTRAINT OF COMMERCE CLAUSES ADDED SOMETHING.  BUT I FIND NO EVIDENCE
THAT WHAT THEY DID ADD INCLUDED VERTICAL ACQUISITIONS. 

FN12  FEDERAL TRADE COMMISSION V. WESTERN MEAT CO., 272 U.S. 554,
561. 

FN13  IT MIGHT BE ARGUED THAT THE MENTION OF SUBSEQUENT MISUSE IN THE
THIRD PARAGRAPH OF SEC. 7, THE INVESTMENT PROVISO, ENLARGES THE
SUBSTANTIVE CONTENT OF THE FIRST PARAGRAPH OF SEC. 7.  THIS PARAGRAPH
PROVIDES THAT "THIS SECTION SHALL NOT APPLY TO CORPORATIONS PURCHASING
SUCH STOCK SOLELY FOR INVESTMENT AND NOT USING THE SAME BY VOTING OR
OTHERWISE TO BRING ABOUT, OR IN ATTEMPTING TO BRING ABOUT, THE
SUBSTANTIAL LESSENING OF COMPETITION."  BUT THE MENTION OF USE IN THIS
PARAGRAPH HAS THE EFFECT OF LIMITING THE EXCEPTION IT CONTAINS, I.E.,
THE EXCEPTION FOR STOCK PURCHASED "SOLELY FOR INVESTMENT."  THIS
EXCEPTION IS LOST IF THE STOCK IS SUBSEQUENTLY MISUSED.  BUT THE
EXCEPTION CONTAINED IN THIS PARAGRAPH DOES NOT COME INTO PLAY UNLESS
THE ACQUISITION FIRST COMES WITHIN THE SUBSTANTIVE PROHIBITION OF THE
FIRST TWO PARAGRAPHS OF SEC. 7.  THIS LIMITATION ON THE EXCEPTION
CANNOT EXPAND THE SUBSTANTIVE PROHIBITION TO WHICH THE EXCEPTION
APPLIES. 

FN14  IT MAY BE THAT SEC. 7 IS INAPPLICABLE WHEN THE GOVERNMENT FAILS
TO BRING SUIT WITHIN A REASONABLE PERIOD AFTER THE CONSUMMATION OF THE
STOCK ACQUISITION.  IF SO, THE 30 YEARS HERE INVOLVED WOULD EXCEED A
REASONABLE PERIOD OF INCIPIENCY.  EVEN THOUGH SEC. 7 OF THE CLAYTON
ACT, UNDER THIS THEORY, WOULD BE INAPPLICABLE, ANY ALLEGED RESTRAINT
COULD BE DEALT WITH UNDER THE SHERMAN ACT. 

FN15  THE COURT APPARENTLY CONCEDES THAT DU PONT'S STOCK ACQUISITION
IN GENERAL MOTORS WAS LAWFUL WHEN MADE BECAUSE "ITS SALES TO GENERAL
MOTORS WERE RELATIVELY INSIGNIFICANT" AT THAT TIME AND BECAUSE "GENERAL
MOTORS THEN PRODUCED ONLY ABOUT 11% OF THE TOTAL AUTOMOBILE PRODUCTION
...  ."  ANTE, P. 599.  THROUGHOUT, THE COURT STRESSES THE GROWTH IN
SIZE OF GENERAL MOTORS.  ANTE, PP. 595-596, 599.  THE DECLINE IN THE
NUMBER OF AUTOMOBILE MANUFACTURERS IS NOT MENTIONED, BUT IS WELL
KNOWN.  AND THE COURT STATES THAT DIFFUSION OF GENERAL MOTORS' STOCK
THROUGH THE YEARS HAS INCREASED "THE POTENCY OF THE INFLUENCE OF DU
PONT'S 23% STOCK INTEREST  ...  ."  ANTE, P. 607, N. 36. 

FN16 EXCEPT IN THIS CASE, THE ENFORCING AGENCIES APPEAR NEVER TO HAVE
BROUGHT AN ACTION UNDER SEC. 7 MORE THAN FOUR YEARS AFTER THE DATE OF
THE ACQUISITION.  CONSEQUENTLY, THE PRECISE PROBLEM RAISED HERE HAS NOT
BEEN DIRECTLY ADJUDICATED.  NEVERTHELESS, THE CASES CITED IN THE TEXT
SPELL OUT THE PROOF REQUIRED FOR A VIOLATION OF SEC. 7, AND THUS HAVE
AN IMPORTANT BEARING ON THIS PROBLEM. 

FN17  CF. UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, HOLDING
THAT EVEN THE EXCLUSION OF COMPETITION RESULTING FROM COMPLETE VERTICAL
INTEGRATION DOES NOT VIOLATE THE SHERMAN ACT UNLESS COMPETITION IN A
SUBSTANTIAL PORTION OF A MARKET IS RESTRAINED. 

FN18  THE FOLLOWING TABLE COMPARES GENERAL MOTORS' PURCHASES, IN
1947, OF SEVERAL PRODUCTS FROM DU PONT WITH ITS PURCHASES OF THE SAME
PRODUCTS FROM COMPETITORS OF DU PONT. 

                                                   PURCHASES
TOTAL       PERCENT OF

           PURCHASES      FROM           GENERAL     PURCHASES

                                    FROM           COMPETITORS
MOTORS'     FROM

      TYPE OF PRODUCT       DU PONT        OF DU PONT     PURCHASES
DU PONT 

FINISHES                             $18,724,000    $ 8,635,000
$27,359,000        68.4 

FABRICS (IMITATION LEATHER AND

COATED FABRICS)                      3,639,000      5,815,000
9,454,000        38.5 

ADHESIVES            12,000      3,056,000      3,068,000
.4 

CHEMICALS:

ANODES                                   2,000      1,206,000
1,208,000          .2

SOLVENTS                         439,000      3,183,000
3,622,000       12.1

                                   $22,816,000    $21,895,000
$44,711,000        51.0 

FN19  THE FOLLOWING TABLE COMPARES DU PONT'S TOTAL SALES OF
INDUSTRIAL FINISHES IN RECENT YEARS WITH ITS SALES OF THE SAME FINISHES
TO GENERAL MOTORS:

              SALES TO GENERAL MOTORS                 SALES TO
GENERAL

                        OTHER                    TOTAL FINISH
MOTORS AS PERCENT 

YEAR          DUCO       FINISHES     TOTAL        SALES      OF TOTAL
SALES 

1938      $ 4,569,604  $1,625,625  $ 6,195,229    $ 31,357,134
      19.8 

1939 6,312,005   2,448,844    8,760,849      38,514,763       22.7 

1940        8,876,970   2,850,091   11,727,061     44,974,778
     26.1 

1941        9,768,119   3,757,389   13,525,508      61,204,127
      22.1 

1946        6,911,596   3,518,256   10,429,852      75,117,079
      13.9 

1947       12,224,798   6,713,431   18,938,229     105,266,655
      18.0 

THE YEARS 1942 THROUGH 1945 ARE OMITTED FROM ALL TABLES BECAUSE OF
THE SUSPENSION OF AUTOMOBILE PRODUCTION DURING THE WAR. 

FN20  IN 1947, A TYPICAL YEAR, GENERAL MOTORS' TOTAL PURCHASES OF ALL
PRODUCTS FROM DU PONT WERE $26,628,274.  OF THIS AMOUNT, $18,938,229,
OR 71% OF THE TOTAL, WAS FINISHES. 

FN21  IN 1947, OVER 400 PAINT MANUFACTURERS OTHER THAN DU PONT SOLD
FINISHES TO GENERAL MOTORS.  THE TOTAL AMOUNT THEY SOLD WAS $8,635,000,
31.6% OF GENERAL MOTORS' REQUIREMENTS.  TWENTY-FIVE COMPANIES, OTHER
THAN DU PONT, EACH SOLD AMOUNTS OF FINISHES TO GENERAL MOTORS IN EXCESS
OF $30,000 IN THAT YEAR; ONE COMPANY SOLD AS MUCH AS $3,205,000. 

FN22  IN 1947, GENERAL MOTORS' PURCHASES OF INDUSTRIAL FINISHES FROM
DU PONT, BY TYPE OF FINISH, WERE AS FOLLOWS: 

DUCO              $12,224,798        65% 

DULUX               3,179,225        17 

ALL OTHERS          3,534,206        18

                $18,938,229       100% 

THUS, DUCO AND DULUX COMPRISED 82% OF DU PONT'S FINISH SALES TO
GENERAL MOTORS IN THAT YEAR. 

FN23  DU PONT INITIALLY SOLD MORE DUCO TO OTHER AUTO MANUFACTURERS
THAN IT DID TO GENERAL MOTORS.  IN 1926, DU PONT'S SALES OF COLORED
DUCO WERE DISTRIBUTED AS FOLLOWS: TO GENERAL MOTORS, 19%; TO OTHER AUTO
MANUFACTURERS, 33%; TO ALL OTHERS, 48%.  THE PRIMARY MARKET FOR CLEAR
DUCO HAS ALWAYS BEEN THE FURNITURE INDUSTRY. 

FN24  FOR EXAMPLE, VAN DERAU, A WESTINGHOUSE EXECUTIVE, TESTIFIED
THAT HIS COMPANY BOUGHT ITS ENTIRE REQUIREMENTS OF REFRIGERATOR
FINISHES FROM DU PONT BECAUSE OF DU PONT'S QUALITY AND SERVICE: 

"NOW, ANOTHER FACTOR - AND I THINK I CAN SAY THIS WITHOUT IT BEING
HARMFUL TO ANY OTHER SUPPLIERS - DU PONT HAS THE FINEST TRAINED
TECHNICAL GROUP AT THEIR BECK AND CALL, AT THE BECK AND CALL OF THE
USERS OF THE MATERIALS, OF ANYBODY IN THE BUSINESS AND WE HAVE HAD
SEVERAL TIMES, WHEN WE HAVE HAD A LITTLE PROBLEM, AND I AM THINKING OF
ONE IN PARTICULAR WHERE WE WERE GOING TO FIND IT VERY DIFFICULT TO KEEP
IN PRODUCTION UNTIL THE TROUBLE WOULD BE OVERCOME, WHICH I CALLED FROM
PITTSBURGH TO THE CHICAGO OFFICE, AND THE NEXT MORNING ONE OF THE MEN
OF DU PONT WAS ON THE JOB, AND WITHIN A VERY FEW HOURS THEY HAD
MATERIALS COMING IN FROM THEIR TOLEDO PLANT THAT KEPT US IN
PRODUCTION. 

"YOU CANNOT LAUGH OFF THAT KIND OF SERVICE.  THEY HAVE BEEN SIMPLY
EXCELLENT, AND I DON'T KNOW HOW YOU COULD SAY, ANY BETTER." 

FN25  THE FOLLOWING TABLE COMPARES DU PONT'S TOTAL SALES OF
INDUSTRIAL FABRICS, PRIMARILY IMITATION LEATHER AND COATED FABRICS, IN
SEVERAL RECENT YEARS, WITH THE SALES OF THOSE SAME PRODUCTS TO GENERAL
MOTORS:

           SALES TO      SALES TO                GM SALES AS
PERCENT 

YEAR         GM    OTHERS        TOTAL SALES      OF TOTAL SALES 

1938   $  446,357   $ 6,647,112     $ 7,093,469  6.6 

1939           803,854     7,775,778       8,579,632
9.4 

1940         1,285,280     7,780,105       9,065,385
14.2 

1941         1,773,079    13,093,469      14,866,548
11.9 

1946         2,083,166    14,170,639      16,253,805
12.8 

1947         3,639,316    16,723,610  20,362,926
17.9    FN26  THE FOLLOWING TABLE COMPARES THE DOLLAR AMOUNT, IN 1947,
OF DU PONT'S TOTAL SALES OF THE PRODUCTS OF ITS VARIOUS DEPARTMENTS
WITH THE AMOUNT SOLD BY IT TO GENERAL MOTORS:

            DU PONT SALES                           SALES TO
GENERAL

                    TO GENERAL          TOTAL DU PONT       MOTORS,
AS PERCENT

TYPE OF PRODUCT     MOTORS             SALES               OF TOTAL
SALES 

FINISHES            $18,938,229        $105,266,655  18.0 

FABRICS                  3,639,316          20,362,926
 17.9 

AMMONIA                  1,742,416          50,320,207
  3.5    GRASSELLI CHEMICALS      1,024,320          74,212,311
1.4 

ELECTROCHEMICALS         1,019,272          47,687,843
  2.1 

PLASTICS                   105,422          34,828,026
  0.3 

ORGANIC CHEMICALS           83,254          94,632,256        0.1 

RAYON                       45,616         250,467,514
  (*) 

EXPLOSIVES   26,032          58,875,482                       (*) 

PIGMENTS                     3,530          31,496,024           (*) 

PHOTO PRODUCTS                 867          25,699,756
  (*)

                     $26,628,274        $793,849,000
  3.4 

*LESS THAN 0.1%. 

FN27  BECAUSE THE COURT QUOTES FULLY FROM, AND APPEARS TO PLACE
SPECIAL WEIGHT ON, THE 1926 LETTER OF J.L. PRATT, A BRIEF DISCUSSION OF
IT IS APPROPRIATE BY WAY OF ILLUSTRATION.  ANTE, PP. 606-607, N. 35. 

THE LETTER ONLY PURPORTS TO BE AN EXPRESSION OF PRATT'S PERSONAL
VIEWS - HE MAKES IT CLEAR IN THE LAST PARAGRAPH THAT HE IS EXPRESSING
HIS OWN OPINIONS AND NOT GENERAL MOTORS' POLICY.  IT HAS, THEREFORE,
COMPARATIVELY LITTLE BEARING ON DU PONT'S INTENT.  MOREOVER, IT IS
SIGNIFICANT THAT PRATT'S ATTITUDE TOWARD DU PONT WAS BASED NOT ON THE
STOCK RELATIONSHIP, BUT ON THE FACT THAT DU PONT SAVED GENERAL MOTORS
FROM FINANCIAL DISASTER IN 1920.  HIS VIEWS, APPARENTLY, WOULD HAVE
BEEN THE SAME WHETHER OR NOT DU PONT OWNED STOCK IN GENERAL MOTORS.  IN
ANY EVENT, ALL THAT PRATT SAYS IS THAT, IN MAKING PURCHASES, GENERAL
MOTORS SHOULD "ALWAYS KEEP A COMPETITIVE SITUATION," AND "THE PRIME
CONSIDERATION IS TO DO THE BEST THING FOR DELCO-LIGHT COMPANY  ...  ." 
(PRATT WAS WRITING TO THE GENERAL MANAGER OF DELCO, A GENERAL MOTORS'
DIVISION.) 

AN EXAMINATION OF THE CIRCUMSTANCES IN WHICH THIS LETTER WAS WRITTEN
DISPOSES OF ANY NOTION THAT IT EXPRESSED A POLICY THAT GENERAL MOTORS
SHOULD PREFER DU PONT'S PRODUCTS WHEN THEY WERE EQUAL IN QUALITY,
SERVICE AND PRICE.  THE CIRCUMSTANCES WERE THESE: DELCO LIGHT WAS
BUYING PAINT FROM A COMPETITOR OF DU PONT.  WHEN THE COMPETITOR FAILED
TO SOLVE A PAINT PROBLEM WHICH CONFRONTED DELCO, IT CALLED ON DU PONT
FOR HELP.  HOWEVER, ALTHOUGH DU PONT SOLVED THE PROBLEM AND OBTAINED
ONE ORDER FOR PAINT, DELCO ASKED DU PONT TO WITHHOLD DELIVERY SO THAT
THE COMPETITOR COULD BE GIVEN ANOTHER OPPORTUNITY TO RETAIN THE
BUSINESS.  UNDERSTANDINGLY, ELMS OF THE DU PONT PAINT DEPARTMENT WAS
SOMEWHAT PIQUED BY THIS, AND HE WROTE A PERSONAL LETTER TO HIS FRIED
PRATT ASKING FOR HIS ASSISTANCE.  PRATT'S LETTER TO THE GENERAL MANAGER
OF DELCO WAS THE RESULT. 

DESPITE THE FACT THAT THE DU PONT PRODUCT WAS OFFERED AT A LOWER
PRICE AND THE FACT THAT THE TECHNICAL STAFF AT DELCO THOUGHT THE DU
PONT PRODUCT SUPERIOR, DELCO NEVERTHELESS CONTINUED TO BUY FROM THE
COMPETITOR.  DU PONT NEVER DID RECEIVE THE BUSINESS TO WHICH THE
CORRESPONDENCE RELATED.  JUDGED BY EITHER ITS CONTENT OR ITS RESULT,
THE PRATT LETTER IS A POOR EXAMPLE OF AN ALLEGED DU PONT POLICY OF
"PURPOSELY EMPLOYING ITS STOCK TO PRY OPEN THE GENERAL MOTORS MARKET
...  ."  ANTE, P. 606. 

FN28  THE COURT, WITHOUT REFERRING TO ANY SUPPORTING EVIDENCE,
VENTURES THE CONJECTURE THAT "GENERAL MOTORS PROBABLY TURNED TO OUTSIDE
SOURCES OF SUPPLY AT LEAST IN PART BECAUSE ITS REQUIREMENTS OUTSTRIPPED
DU PONT'S PRODUCTION  ...  ."  ANTE, P. 605.  AS I READ THE RECORD, DU
PONT WAS ACTIVELY SOLICITING MORE BUSINESS FROM GENERAL MOTORS AND
OTHERS THROUGHOUT THE PERIOD COVERED IN THIS SUIT.  I FIND NO HINT THAT
DU PONT WAS SURFEITED WITH BUSINESS AND UNABLE TO FILL GENERAL MOTORS'
ORDERS. 

FN29  THE COURT ALSO OVERTURNS THE DISTRICT COURT'S EXPRESS FINDING
THAT DU PONT PURCHASED GENERAL MOTORS' STOCK SOLELY FOR INVESTMENT. 
THE COURT DOES THIS ON THE BASIS OF AN ALLEGED DU PONT PURPOSE TO
SECURE A NONCOMPETITIVE PREFERENCE WHICH THE COURT FINDS EXPRESSED IN
THE RASKOB LETTER AND IN CERTAIN STATEMENTS IN DU PONT'S 1917 AND 1918
REPORTS TO ITS STOCKHOLDERS.  THESE DOCUMENTS, HOWEVER, ARE NOT
INCONSISTENT WITH THE DISTRICT COURT'S FINDING OF AN INVESTMENT
PURPOSE.  THE DISTRICT COURT SAID: 

"RASKOB'S REPORT, THE TESTIMONY OF PIERRE S. AND IRENEE DU PONT AND
ALL THE CIRCUMSTANCES LEADING UP TO DU PONT'S ACQUISITION OF THIS
SUBSTANTIAL INTEREST IN GENERAL MOTORS, AS SHOWN BY THE RECORD,
ESTABLISH THAT THE ACQUISITION WAS ESSENTIALLY AN INVESTMENT.  ITS
MOTIVATION WAS THE PROFITABLE EMPLOYMENT OF A LARGE PART OF THE SURPLUS
WHICH DU PONT HAD AVAILABLE AND UNCOMMITTED TO EXPANSION OF ITS OWN
BUSINESS. 

     *         *         *         *         * 

"RASKOB'S REPORTS AND OTHER DOCUMENTS WRITTEN AT OR NEAR THE TIME OF
THE INVESTMENT SHOW THAT DU PONT'S REPRESENTATIVES WERE WELL AWARE THAT
GENERAL MOTORS WAS A LARGE CONSUMER OF PRODUCTS OF THE KIND OFFERED BY
DU PONT.  RASKOB, FOR ONE, THOUGHT THAT DU PONT WOULD ULTIMATELY GET
ALL THAT BUSINESS, BUT THERE IS NO EVIDENCE THAT RASKOB EXPECTED TO
SECURE GENERAL MOTORS TRADE BY IMPOSING ANY LIMITATION UPON ITS FREEDOM
TO BUY FROM SUPPLIERS OF ITS CHOICE.  OTHER DOCUMENTS ALSO ESTABLISH DU
PONT'S CONTINUED INTEREST IN SELLING TO GENERAL MOTORS - EVEN TO THE
EXTENT OF THE LATTER'S ENTIRE REQUIREMENTS - BUT THEY SIMILARLY MAKE NO
SUGGESTION THAT THE DESIRED RESULT WAS TO BE ACHIEVED BY LIMITING
GENERAL MOTORS PURCHASING FREEDOM.  ON THE CONTRARY, A NUMBER OF THEM
EXPLICITLY RECOGNIZED THAT GENERAL MOTORS TRADE COULD ONLY BE SECURED
ON A COMPETITIVE BASIS."  126 F. SUPP., AT 242, 243. 

WHETHER ANY STOCK PURCHASE IS AN INVESTMENT TURNS LARGELY ON THE
INTENT OF THE PURCHASER.  PENNSYLVANIA R. CO. V. INTERSTATE COMMERCE
COMMISSION, 66 F.2D 37, AFF'D BY AN EQUALLY DIVIDED COURT, 291 U.S.
651.  IN THIS CASE, SINCE THE DISTRICT COURT'S FINDING WITH REFERENCE
TO THAT INTENT IS UNEQUIVOCAL AND NOT CLEARLY ERRONEOUS, THE STOCK
ACQUISITION FALLS WITHIN THE PROVISO, STATED IN THE THIRD PARAGRAPH OF
SEC. 7, EXPRESSLY EXCEPTING ACQUISITIONS MADE "SOLELY FOR INVESTMENT." 

FN30  THE DISTRICT COURT DID NOT REACH THIS QUESTION SINCE IT FOUND
THAT THERE WAS NO REASONABLE PROBABILITY OF ANY FORECLOSURE OF DU
PONT'S COMPETITORS BY REASON OF DU PONT'S 23% STOCK INTEREST IN GENERAL
MOTORS.  CONSEQUENTLY, THERE ARE NO FINDINGS OF FACT DEALING WITH THE
RELEVANT MARKET.  ALSO, THE RECORD APPEARS DEFICIENT ON SUCH CRUCIAL
QUESTIONS AS THE CHARACTERISTICS OF THE PRODUCTS, THE USES TO WHICH
THEY ARE PUT, THE EXTENT TO WHICH THEY ARE INTERCHANGEABLE WITH
COMPETITORS' PRODUCTS, AND SO ON.  FOR THESE REASONS, I BELIEVE THE
COURT IN ANY EVENT SHOULD REMAND THE CASE TO THE DISTRICT COURT TO GIVE
THE DISTRICT JUDGE, WHO IS MORE FAMILIAR WITH THE RECORD THEN WE CAN
BE, AN OPPORTUNITY TO REVIEW THE RECORD, AND ENTERTAIN ARGUMENT WITH
RESPECT TO THE SUBSTANTIALITY OF THE SHARE OF THE RELEVANT MARKET
AFFECTED BY THE FORECLOSURE WHICH THE COURT FINDS TO EXIST.  BY
DECLINING TO REMAND, THE COURT NECESSITATES A SCRUTINY HERE OF THIS
HUGE RECORD FOR A DETERMINATION OF AN ESSENTIALLY FACTUAL QUESTION NOT
PASSED ON BY THE DISTRICT COURT, AND NOT THOROUGHLY BRIEFED OR ARGUED
BY THE PARTIES. 

FN31  THE COURT STATES THAT "GENERAL MOTORS TOOK 93% OF DU PONT'S
AUTOMOBILE DUCO PRODUCTION IN 1941 AND 83% IN 1947."  ANTE, P. 605. 
THESE FIGURES ARE OF LITTLE SIGNIFICANCE.  NOT ONLY DO THEY OMIT THE
CRUCIAL SALES - THOSE MADE OUTSIDE THE AUTOMOBILE INDUSTRY - BUT THEY
GIVE A MISLEADING IMPRESSION WITH RESPECT TO DU PONT'S SALES TO THE
AUTOMOBILE INDUSTRY.  AS PREVIOUSLY STATED, FORD CHOSE TO MAKE ITS OWN
REQUIREMENTS AFTER ABOUT 1935 AND CHRYSLER DESIRED TO CONCENTRATE ITS
PURCHASES ON ONE SUPPLIER.  UNDER THESE FIGURES, AFTER ELIMINATING FORD
AND CHRYSLER, AND DEDUCTING DU PONT'S SALES TO GENERAL MOTORS, DU PONT
MUST HAVE SUPPLIED NEARLY HALF OF THE ENTIRE REQUIREMENTS OF ALL
REMAINING AUTO MANUFACTURERS IN 1941 AND AN EVEN LARGER PORTION IN
1947. 

THE RECORD DOES NOT CONTAIN COMPLETE FIGURES ON THE AMOUNT OF DUCO
SOLD OUTSIDE THE AUTOMOBILE INDUSTRY.  HOWEVER, THERE ARE FIGURES FOR
SELECTED YEARS.  IN 1927, FOR EXAMPLE, 51.5% OF ALL DUCO SALES WERE TO
OTHER THAN AUTOMOBILE MANUFACTURERS (1,166,220 GALLONS, OUT OF A TOTAL
OF 2,263,000 GALLONS).  IN 1948, DU PONT'S GROSS SALES TO PURCHASERS
OTHER THAN GENERAL MOTORS OF THE SAME KINDS OF FINISHES BOUGHT BY
GENERAL MOTORS AMOUNTED TO ABOUT $97,000,000; ITS SALES TO GENERAL
MOTORS IN THE SAME YEAR WERE $21,000,000, OR 21.7% OF THE TOTAL.  THE
RECORD REVEALS THAT GENERAL MOTORS' PURCHASES OF FINISHES FROM DU PONT
HAVE RANGED, IN RECENT YEARS, FROM 14% TO 26% OF DU PONT'S SALES OF
SUCH FINISHES TO ALL CUSTOMERS.  THE CONCLUSION SEEMS CLEAR THAT DU
PONT'S FINISHES HAVE FOUND WIDE ACCEPTANCE IN INNUMERABLE INDUSTRIES
AND THAT DU PONT IS NOT DEPENDENT ON GENERAL MOTORS FOR A CAPTIVE PAINT
MARKET. 

FN32  U.S. DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, II CENSUS OF
MANUFACTURES: 1947, STATISTICS BY INDUSTRY, 414-415.  THERE WERE 1,291
ESTABLISHMENTS MANUFACTURING THESE PRODUCTS.  DU PONT'S TOTAL SALES
WERE 8.1% OF THE INDUSTRY. 

FN33  IN THE FARGO CASE, MAYTAG, AN APPLIANCE MANUFACTURER, ACQUIRED
A 40% STOCK INTEREST IN, AND CONTRACTED TO PURCHASE THE ENTIRE OUTPUT
OF, GLOBE, A GAS RANGE MANUFACTURER.  A GLOBE DEALER, WHO LOST HIS
SOURCE OF SUPPLY AS A RESULT OF THE TRANSACTION, BROUGHT A TREBLE
DAMAGE ACTION ALLEGING, INTER ALIA, THAT THE STOCK ACQUISITION VIOLATED
SEC. 7 OF THE CLAYTON ACT.  THE EVIDENCE SHOWED THAT THERE WERE ABOUT
70 MANUFACTURERS OF GAS RANGES, AND THAT GLOBE WAS ABOUT EIGHTEENTH IN
SIZE, SELLING A LITTLE LESS THAN 2% OF THE NATIONAL MARKET (ABOUT
$5,000,000 A YEAR).  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT HELD
THAT THE STOCK ACQUISITION DID NOT VIOLATE SEC. 7 BECAUSE THE PLAINTIFF
HAD OTHER READILY AVAILABLE SOURCES OF SUPPLY. 

THE ACQUISITION OF AN OUTLET IS GOVERNED BY SIMILAR PRINCIPLES.  IN
EITHER CASE, THE QUESTION IS WHETHER COMPETITORS MAY BE SUBSTANTIALLY
LIMITED IN THEIR COMPETITIVE OPPORTUNITIES.  ASSUMING THAT DU PONT HAD
PURCHASED GENERAL MOTORS OUTRIGHT, AND THUS COMMANDED AN OUTLET
CONSUMING ABOUT 4% OF THE NATIONAL MARKET FOR INDUSTRIAL FINISHES AND
ABOUT 2% OF THE NATIONAL MARKET FOR INDUSTRIAL FABRICS, IT SEEMS
UNLIKELY THAT DU PONT'S PAINT AND FABRIC COMPETITORS WOULD BE
SUBSTANTIALLY LIMITED IN SELLING THEIR PRODUCTS, WHEN 96% AND 98%,
RESPECTIVELY, OF THE NATIONAL MARKET WOULD REMAIN OPEN TO THEM. 

               APPENDIX TO MR. JUSTICE BURTON'S DISSENT. 

"SEC. 7.  THAT NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE,
DIRECTLY OR INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER
SHARE CAPITAL OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE
THE EFFECT OF SUCH ACQUISITION MAY BE TO SUBSTANTIALLY LESSEN
COMPETITION BETWEEN THE CORPORATION WHOSE STOCK IS SO ACQUIRED AND THE
CORPORATION MAKING THE ACQUISITION, OR TO RESTRAIN SUCH COMMMERCE IN
ANY SECTION OR COMMUNITY, OR TEND TO CREATE A MONOPOLY OF ANY LINE OF
COMMERCE. 

"NO CORPORATION SHALL ACQUIRE, DIRECTLY OR INDIRECTLY, THE WHOLE OR
ANY PART OF THE STOCK OR OTHER SHARE CAPITAL OF TWO OR MORE
CORPORATIONS ENGAGED IN COMMERCE WHERE THE EFFECT OF SUCH ACQUISITION,
OR THE USE OF SUCH STOCK BY THE VOTING OR GRANTING OF PROXIES OR
OTHERWISE, MAY BE TO SUBSTANTIALLY LESSEN COMPETITION BETWEEN SUCH
CORPORATIONS, OR ANY OF THEM, WHOSE STOCK OR OTHER SHARE CAPITAL IS SO
ACQUIRED, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY, OR
TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE. 

"THIS SECTION SHALL NOT APPLY TO CORPORATIONS PURCHASING SUCH STOCK
SOLELY FOR INVESTMENT AND NOT USING THE SAME BY VOTING OR OTHERWISE TO
BRING ABOUT, OR IN ATTEMPTING TO BRING ABOUT, THE SUBSTANTIAL LESSENING
OF COMPETITION.  NOR SHALL ANYTHING CONTAINED IN THIS SECTION PREVENT A
CORPORATION ENGAGED IN COMMERCE FROM CAUSING THE FORMATION OF
SUBSIDIARY CORPORATIONS FOR THE ACTUAL CARRYING ON OF THEIR IMMEDIATE
LAWFUL BUSINESS, OR THE NATURAL AND LEGITIMATE BRANCHES OR EXTENSIONS
THEREOF, OR FROM OWNING AND HOLDING ALL OR A PART OF THE STOCK OF SUCH
SUBSIDIARY CORPORATIONS, WHEN THE EFFECT OF SUCH FORMATION IS NOT TO
SUBSTANTIALLY LESSEN COMPETITION. 

"NOR SHALL ANYTHING HEREIN CONTAINED BE CONSTRUED TO PROHIBIT ANY
COMMON CARRIER SUBJECT TO THE LAWS TO REGULATE COMMERCE FROM AIDING IN
THE CONSTRUCTION OF BRANCHES OR SHORT LINES SO LOCATED AS TO BECOME
FEEDERS TO THE MAIN LINE OF THE COMPANY SO AIDING IN SUCH CONSTRUCTION
OR FROM ACQUIRING OR OWNING ALL OR ANY PART OF THE STOCK OF SUCH BRANCH
LINES, NOR TO PREVENT ANY SUCH COMMON CARRIER FROM ACQUIRING AND OWNING
ALL OR ANY PART OF THE STOCK OF A BRANCH OR SHORT LINE CONSTRUCTED BY
AN INDEPENDENT COMPANY WHERE THERE IS NO SUBSTANTIAL COMPETITION
BETWEEN THE COMPANY OWNING THE BRANCH LINE SO CONSTRUCTED AND THE
COMPANY OWNING THE MAIN LINE ACQUIRING THE PROPERTY OR AN INTEREST
THEREIN, NOR TO PREVENT SUCH COMMON CARRIER FROM EXTENDING ANY OF ITS
LINES THROUGH THE MEDIUM OF THE ACQUISITION OF STOCK OR OTHERWISE OF
ANY OTHER SUCH COMMON CARRIER WHERE THERE IS NO SUBSTANTIAL COMPETITION
BETWEEN THE COMPANY EXTENDING ITS LINES AND THE COMPANY WHOSE STOCK,
PROPERTY, OR AN INTEREST THEREIN IS SO ACQUIRED.    "NOTHING CONTAINED
IN THIS SECTION SHALL BE HELD TO AFFECT OR IMPAIR ANY RIGHT HERETOFORE
LEGALLY ACQUIRED:  PROVIDED, THAT NOTHING IN THIS SECTION SHALL BE HELD
OR CONSTRUED TO AUTHORIZE OR MAKE LAWFUL ANYTHING HERETOFORE PROHIBITED
OR MADE ILLEGAL BY THE ANTITRUST LAWS, NOR TO EXEMPT ANY PERSON FROM
THE PENAL PROVISIONS THEREOF OR THE CIVIL REMEDIES THEREIN PROVIDED." 
38 STAT. 731-732, 15 U.S.C. (1946 ED.)  SEC.  18.
..END :













JENCKS V. UNITED STATES 353 U.S. 657 


NO. 23.  ARGUED OCTOBER 17, 1956 - DECIDED JUNE 3, 1957 - 226 F.2D 540,
553, REVERSED. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT OF VIOLATING 18
U.S.C. SEC. 1001 BY FILING, UNDER SEC. 9(H) OF THE NATIONAL LABOR
RELATION ACT, AS PRESIDENT OF A LABOR UNION, AN AFFIDAVIT STATING
FALSELY THAT HE WAS NOT A MEMBER OF THE COMMUNIST PARTY OR AFFILIATED
WITH SUCH PARTY.  CRUCIAL TESTIMONY AGAINST HIM WAS GIVEN BY TWO PAID
UNDERCOVER AGENTS FOR THE F.B.I., WHO STATED ON CROSS-EXAMINATION THAT
THEY HAD MADE REGULAR ORAL OR WRITTEN REPORTS TO THE F.B.I. ON THE
MATTERS ABOUT WHICH THEY HAD TESTIFIED.  PETITIONER MOVED FOR THE
PRODUCTION OF THESE REPORTS IN COURT FOR INSPECTION BY THE JUDGE WITH A
VIEW TO THEIR POSSIBLE USE BY PETITIONER IN IMPEACHING SUCH TESTIMONY. 
HIS MOTIONS WERE DENIED.  HELD: DENIAL OF THE MOTIONS WAS ERRONEOUS,
AND THE CONVICTION IS REVERSED.  PP. 658-672. 

(A)  PETITIONER WAS NOT REQUIRED TO LAY A PRELIMINARY FOUNDATION FOR
HIS MOTION, SHOWING INCONSISTENCY BETWEEN THE CONTENTS OF THE REPORTS
AND THE TESTIMONY OF THE GOVERNMENT AGENTS, BECAUSE A SUFFICIENT
FOUNDATION WAS ESTABLISHED BY THEIR TESTIMONY THAT THEIR REPORTS WERE
OF THE EVENTS AND ACTIVITIES RELATED IN THEIR TESTIMONY.  GORDON V.
UNITED STATES, 344 U.S. 414, DISTINGUISHED.  PP. 666-668. 

(B)  PETITIONER WAS ENTITLED TO AN ORDER DIRECTING THE GOVERNMENT TO
PRODUCE FOR INSPECTION ALL WRITTEN REPORTS OF THE F.B.I. AGENTS IN ITS
POSSESSION, AND, WHEN ORALLY MADE, AS RECORDED BY THE F.B.I., TOUCHING
THE EVENTS AND ACTIVITIES AS TO WHICH THEY TESTIFIED AT THE TRIAL.  P.
668. 

(C)  PETITIONER IS ENTITLED TO INSPECT THE REPORTS TO DECIDE WHETHER
TO USE THEM IN HIS DEFENSE.  PP. 668-669. 

(D)  THE PRACTICE OF PRODUCING GOVERNMENT DOCUMENTS TO THE TRIAL
JUDGE FOR HIS DETERMINATION OF RELEVANCY AND MATERIALITY, WITHOUT
HEARING THE ACCUSED, IS DISAPPROVED.  P. 669. 

(E)  ONLY AFTER INSPECTION OF THE REPORTS BY THE ACCUSED, MUST THE
TRIAL JUDGE DETERMINE ADMISSIBILITY OF THE CONTENTS AND THE METHOD TO
BE EMPLOYED FOR THE ELIMINATION OF PARTS IMMATERIAL OR IRRELEVANT.  P.
669. 

(F)  CRIMINAL ACTION MUST BE DISMISSED WHEN THE GOVERNMENT, ON THE
GROUND OF PRIVILEGE, ELECTS NOT TO COMPLY WITH AN ORDER TO PRODUCE, FOR
THE ACCUSED'S INSPECTION AND FOR ADMISSION IN EVIDENCE, RELEVANT
STATEMENTS OR REPORTS IN ITS POSSESSION OF GOVERNMENT WITNESSES
TOUCHING THE SUBJECT MATTER OF THEIR TESTIMONY AT THE TRIAL.  PP. 669
672. 

(G)  THE BURDEN IS THE GOVERNMENT'S, NOT TO BE SHIFTED TO THE TRIAL
JUDGE, TO DECIDE WHETHER THE PUBLIC PREJUDICE OF ALLOWING THE CRIME TO
GO UNPUNISHED IS GREATER THAN THAT ATTENDANT UPON THE POSSIBLE
DISCLOSURE OF STATE SECRETS AND OTHER CONFIDENTIAL INFORMATION IN THE
GOVERNMENT'S POSSESSION.  P. 672. 

JENCKS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

ON APRIL 28, 1950, THE PETITIONER, AS PRESIDENT OF AMALGAMATED BAYARD
DISTRICT UNION, LOCAL 890, INTERNATIONAL UNION OF MINE, MILL & SMELTER
WORKERS, FILED AN "AFFIDAVIT OF NON-COMMUNIST UNION OFFICER" WITH THE
NATIONAL LABOR RELATIONS BOARD, PURSUANT TO SEC. 9(H) OF THE NATIONAL
LABOR RELATIONS ACT.  (FN1)  HE HAS BEEN CONVICTED UNDER A TWO-COUNT
INDICTMENT CHARGING THAT HE VIOLATED 18 U.S.C. SEC. 1001 (FN2) BY
FALSELY SWEARING IN THAT AFFIDVAIT THAT HE WAS NOT ON APRIL 28, 1950, A
MEMBER OF THE COMMUNIST PARTY OR AFFILIATED WITH SUCH PARTY.  THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED THE CONVICTION, (FN3) AND
ALSO AN ORDER OF THE DISTRICT COURT DENYING THE PETITIONER'S MOTION FOR
A NEW TRIAL.  (FN4)  THIS COURT GRANTED CERTIORARI.  (FN5) 

TWO ALLEGED TRIAL ERRORS ARE PRESENTED FOR OUR REVIEW.  HARVEY F.
MATUSOW AND J.W. FORD, THE GOVERNMENT'S PRINCIPAL WITNESSES, WERE
COMMUNIST PARTY MEMBERS PAID BY THE FEDERAL BUREAU OF INVESTIGATION
CONTEMPORANEOUSLY TO MAKE ORAL OR WRITTEN REPORTS OF COMMUNIST PARTY
ACTIVITIES IN WHICH THEY PARTICIPATED.  THEY MADE SUCH REPORTS TO THE
F.B.I. OF ACTIVITIES ALLEGEDLY PARTICIPATED IN BY THE PETITIONER, ABOUT
WHICH THEY TESTIFIED AT THE TRIAL.  ERROR IS ASSERTED IN THE DENIAL BY
THE TRIAL JUDGE OF THE PETITIONER'S MOTIONS TO DIRECT THE GOVERNMENT TO
PRODUCE THESE REPORTS FOR INSPECTION AND USE IN CROSS-EXAMINING MATUSOW
AND FORD.  ERROR IS ALSO ALLEGED IN THE INSTRUCTIONS GIVEN TO THE JURY
ON MEMBERSHIP, AFFILIATION, AND THE CREDIBILITY OF INFORMERS.  (FN6) 

FORMER PARTY MEMBERS TESTIFIED THAT THEY AND THE PETITIONER, AS
MEMBERS OF THE COMMUNIST PARTY OF NEW MEXICO, HAD BEEN EXPRESSLY
INSTRUCTED TO CONCEAL THEIR MEMBERSHIP AND NOT TO CARRY MEMBERSHIP
CARDS.  THEY ALSO TESTIFIED THAT THE PARTY KEPT NO MEMBERSHIP RECORDS
OR MINUTES OF MEMBERSHIP MEETINGS, AND THAT SUCH MEETINGS WERE SECRETLY
ARRANGED AND CLANDESTINELY HELD.  ONE OF THE WITNESSES SAID THAT
SPECIAL CARE WAS TAKEN TO CONCEAL THE PARTY MEMBERSHIP OF MEMBERS, LIKE
THE PETITIONER, "OCCUPYING STRATEGIC AND IMPORTANT POSITIONS IN LABOR
UNIONS AND OTHER ORGANIZATIONS WHERE PUBLIC KNOWLEDGE OF THEIR
MEMBERSHIP TO NON-COMMUNISTS WOULD JEOPARDIZE THEIR POSITION IN THE
ORGANIZATION."  ACCORDINGLY, THE GOVERNMENT DID NOT ATTEMPT TO PROVE
THE PETITIONER'S ALLEGED MEMBERSHIP IN THE COMMUNIST PARTY ON APRIL 28,
1950, WITH ANY DIRECT ADMISSIONS BY THE PETITIONER OF MEMBERSHIP, BY
PROOF OF HIS COMPLIANCE WITH PARTY MEMBERSHIP REQUIREMENTS, OR THAT HIS
NAME APPEARED UPON A MEMBERSHIP ROSTER, OR THAT HE CARRIED A MEMBERSHIP
CARD. 

THE EVIDENCE RELIED UPON BY THE GOVERNMENT WAS ENTIRELY
CIRCUMSTANTIAL.  IT CONSISTED OF TESTIMONY OF CONDUCT OF THE PETITIONER
FROM EARLY 1946 THROUGH OCTOBER 15, 1949, AND OF MATUSOW'S TESTIMONY
CONCERNING ALLEGED CONVERSATIONS BETWEEN HIM AND THE PETITIONER AT A
VACATION RANCH IN JULY OR AUGUST 1950, AND CONCERNING A LECTURE
DELIVERED BY THE PETITIONER AT THE RANCH.  THE GOVERNMENT ALSO ATTACHED
PROBATIVE WEIGHT TO THE ACTION OF THE PETITIONER IN EXECUTING AND
FILING AN AFFIDAVIT OF NON-COMMUNIST UNION OFFICER ON OCTOBER 15, 1949,
BECAUSE OF THE EVENTS SURROUNDING THE FILING OF THAT AFFIDAVIT.  THE
GOVERNMENT BRIDGED THE GAP BETWEEN OCTOBER 15, 1949, AND JULY OR AUGUST
1950 WITH THE TESTIMONY OF FORD THAT, DURING THAT PERIOD, THE PARTY
TOOK NO DISCIPLINARY ACTION AGAINST THE PETITIONER FOR DEFECTION OR
DEVIATION, AND DID NOT REPLACE THE PETITIONER IN THE PARTY OFFICE WHICH
FORD TESTIFIED THE PETITIONER HELD AS A MEMBER OF THE PARTY STATE
BOARD. 

THE FIRST ALLEGED PARTY ACTIVITY OF THE PETITIONER PRECEDED HIS UNION
EMPLOYMENT.  A WITNESS, WHO WAS A PARTY MEMBER IN THE SPRING OF 1946,
TESTIFIED THAT, AT THAT TIME, HE AND THE PETITIONER WERE PRESENT AT A
CLOSED PARTY MEETING AT THE HOME OF THE PARTY CHAIRMAN FOR COLORADO,
WHERE THE PETITIONER, A VETERAN OF WORLD WAR II, LED IN URGING THAT
VETERANS WHO WERE PARTY MEMBERS SPREAD OUT INTO SEVERAL VETERANS'
ORGANIZATIONS AND NOT ALL JOIN THE SAME ONE, THE BETTER TO FURTHER
PARTY WORK. 

LATER IN 1946 THE PETITIONER WAS EMPLOYED BY THE INTERNATIONAL UNION
OF MINE, MILL & SMELTER WORKERS AS BUSINESS AGENT FOR SEVERAL LOCAL
UNIONS IN THE SILVER CITY-BAYARD, NEW MEXICO, AREA.  IT WAS TESTIFIED
THAT ONE OF THE PETITIONER'S FIRST ACTS WAS TO MEET WITH THE
INTERNATIONAL UNION'S THEN REGIONAL DIRECTOR FOR THE SOUTHWEST, A
COMMUNIST PARTY MEMBER, AND WITH THE COMMUNIST PARTY ORGANIZER FOR THE
AREA, TO DEVELOP PLANS FOR ORGANIZING A PARTY GROUP WITHIN EACH OF
THOSE LOCALS, WHICH LATER MERGED TO FORM AMALGAMATED LOCAL 890 UNDER
THE PETITIONER'S PRESIDENCY. 

J.W. FORD WAS A MEMBER OF THE COMMUNIST PARTY OF NEW MEXICO FROM 1946
TO SEPTEMBER 1950 AND, FROM 1948, WAS A MEMBER OF THE STATE BOARD AND A
PARTY SECURITY OFFICER.  HE SAID THAT IN 1948 HE BECAME A PAID
UNDERCOVER AGENT FOR THE F.B.I. (FN7) AND REPORTED REGULARLY UPON PARTY
ACTIVITIES AND MEETINGS.  HE TESTIFIED THAT THE PETITIONER WAS ALSO A
PARTY AND A STATE BOARD MEMBER, AND HE RELATED IN DETAIL OCCURRENCES AT
FIVE CLOSED PARTY MEETINGS WHICH HE SAID THE PETITIONER ATTENDED. 

AT THE FIRST MEETING, IN AUGUST 1948, FORD SAID THE PARTY MEMBERS
WORKED OUT A PLAN TO SUPPORT THE PETITIONER'S CANDIDACY FOR CONGRESS ON
THE TICKET OF THE PROGRESSIVE PARTY.  AT THE SECOND MEETING, IN
FEBRUARY 1949, FORD SAID THAT THE PETITIONER AND OTHER COMMUNIST PARTY
MEMBERS WERE APPOINTED DELEGATES TO A MEETING OF THE MEXICAN-AMERICAN
ASSOCIATION IN PHOENIX, ARIZONA, TO FURTHER A PARTY PLAN TO INFILTRATE
THAT ORGANIZATION AND TO USE IT FOR THE PARTY'S PURPOSES.  AT THE THIRD
MEETING, IN APRIL 1949, FORD SAID THAT THE PARTY'S STATE ORGANIZATION
WAS COMPLETED, AND THE PETITIONER WAS APPOINTED TO THE STATE BOARD AND
THE PARTY LEADER IN THE SOUTHERN HALF OF THE STATE.  AT THE FOURTH
MEETING, IN MAY 1949, FORD SAID THAT THE PETITIONER GAVE A PROGRESS
REPORT UPON HIS SUCCESS IN RECRUITING PARTY MEMBERS AMONG LABOR GROUPS,
AND OFFERED TO USE LOCAL 890'S NEWSPAPER, "THE UNION WORKER," WHICH HE
EDITED, TO SUPPORT ISSUES OF PARTY INTEREST.  AT THE FIFTH MEETING, IN
AUGUST 1949, FORD SAID THAT PREPARATIONS WERE MADE FOR ANOTHER MEETING
LATER IN THAT MONTH OF THE MEXICAN-AMERICAN ASSOCIATION IN ALBUQUERQUE,
AND THAT THE DELEGATES, INCLUDING THE PETITIONER, WERE INSTRUCTED TO
GIVE VIGOROUS SUPPORT TO THE MEETING BUT TO TAKE CARE NOT TO MAKE
THEMSELVES CONSPICUOUS IN THE PROCEEDINGS. 

FORD'S DUTIES AS A PARTY SECURITY OFFICER WERE TO KEEP WATCH ON ALL
PARTY MEMBERS AND TO REPORT "ANY PARTICULAR DEFECTIONS FROM THE
COMMUNIST PHILOSOPHY OR ANY PECULIAR ACTIONS, STATEMENTS OR
ASSOCIATIONS, WHICH WOULD ENDANGER THE SECURITY OF THE COMMUNIST PARTY
OF THE STATE."  IF ANY DEFECTION REPORTED BY A SECURITY OFFICER WERE
CONSIDERED IMPORTANT, THE MEMBER "WOULD BE CALLED IN AND WOULD BE
EITHER SEVERELY REPRIMANDED OR CRITICIZED, OR DISCIPLINED.  IF HE
REFUSED TO ACCEPT SUCH DISCIPLINE HE WOULD EITHER BE SUSPENDED OR
EXPELLED."  FORD TESTIFIED THAT, BETWEEN AUGUST 1949 AND SEPTEMBER
1950, WHEN FORD CEASED HIS ACTIVITIES WITH THE NEW MEXICO PARTY, THERE
WAS NO DISCIPLINARY ACTION TAKEN AGAINST THE PETITIONER AND, TO HIS
KNOWLEDGE, THE PETITIONER WAS NOT REPLACED IN HIS POSITION ON THE STATE
BOARD OF THE COMMUNIST PARTY. 

THE EVENTS LEADING UP TO THE PETITIONER'S EXECUTION AND FILING, ON
OCTOBER 15, 1949, OF AN AFFIDAVIT OF NON-COMMUNIST UNION OFFICER WERE
TESTIFIED TO BY A FORMER INTERNATIONAL UNION REPRESENTATIVE, A
COMMUNIST PARTY MEMBER DURING 1947 TO 1949.  HE SAID THAT, ABOUT 17
MONTHS BEFORE, IN MAY OR JUNE 1948, A MEETING OF PARTY MEMBERS, HOLDING
OFFICES IN LOCALS OF THE INTERNATIONAL UNION OF MINE, MILL & SMELTER
WORKERS, WAS HELD IN DENVER TO FORMULATE PLANS FOR COMBATTING A
MOVEMENT, LED BY NON-COMMUNISTS, TO SECEDE FROM THE INTERNATIONAL
UNION.  HE SAID THAT THE PARTY MEMBERS, INCLUDING THE PETITIONER, WERE
INFORMED OF PARTY POLICY NOT TO SIGN AFFIDAVITS REQUIRED BY SEC. 9(H)
OF THE THEN RECENTLY ENACTED TAFT-HARTLEY ACT.  THERE WAS NO TESTIMONY
THAT THAT POLICY CHANGED BEFORE OCTOBER 15, 1949. 

THE AFFIDAVIT WAS FILED SHORTLY BEFORE A C.I.O. CONVENTION WAS
SCHEDULED TO EXPEL THE MINE-MILL INTERNATIONAL AND OTHER UNIONS FROM
ITS MEMBERSHIP.  AFTER FILING THE AFFIDAVIT, THE PETITIONER AND OTHER
LOCAL 890 OFFICERS PUBLISHED AN ARTICLE IN "THE UNION WORKER" CHARGING
THAT THE CONTEMPLATED C.I.O. ACTION WAS PART OF A PROGRAM OF "RIGHT
WING UNIONS  ...  GOBBLING UP CHUNKS OF MILITANT UNIONS  ...  .  OUR
INTERNATIONAL UNION AND ITS OFFICERS HAVE SWALLOWED A LOT OF GUFF, A
LOT OF INSULTS.  BUT THAT IS NOT THE POINT  ...  .  NOW THAT OUR UNION
HAS SIGNED THE PHONY AFFIDAVITS WE CAN DEFEND OURSELVES  ...  IN CASE
OF RAIDS.  WE DO NOT FEAR ATTACK FROM THAT QUARTER ANY LONGER." 

MATUSOW WAS A MEMBER OF THE COMMUNIST PARTY OF NEW YORK AND WAS A
PAID UNDERCOVER AGENT FOR THE F.B.I. BEFORE HE WENT TO NEW MEXICO. 
(FN8)  IN JULY OR AUGUST 1950, HE SPENT A 10-DAY VACATION ON A RANCH
NEAR TAOS, NEW MEXICO, WITH THE PETITIONER AND A NUMBER OF OTHER
PEOPLE.  HE TESTIFIED TO SEVERAL CONVERSATIONS WITH THE PETITIONER
THERE.  HE SAID HE TWICE TOLD THE PETITIONER OF HIS DESIRE TO TRANSFER
HIS MEMBERSHIP FROM THE NEW YORK TO THE NEW MEXICO PARTY, AND THAT ON
BOTH OCCASIONS THE PETITIONER APPLAUDED THE IDEA AND TOLD HIM, "WE CAN
USE YOU OUT HERE, WE NEED MORE ACTIVE PARTY MEMBERS."  ON ONE OF THESE
OCCASIONS, MATUSOW SAID, THE PETITIONER ASKED HIM FOR SUGGESTIONS FOR A
LECTURE THE PETITIONER WAS PREPARING FOR DELIVERY AT THE RANCH,
PARTICULARLY AS TO WHAT THE NEW YORK COMMUNISTS WERE DOING ABOUT THE
STOCKHOLM PEACE APPEAL.  MATUSOW DESCRIBED TO THE PETITIONER A "DO-DAY"
PROGRAM ADOPTED IN NEW YORK WHEN THE PARTY MEMBERS WERE DOERS, NOT
TALKERS, AND PERFORMED SOME ACTIVITY, SUCH AS PAINTING SIGNS AROUND A
BASEBALL STADIUM URGING SUPPORT FOR THE PEACE APPEAL.   HE TESTIFIED
THAT THE PETITIONER SHOWED GREAT INTEREST IN THE IDEA AND SAID HE MIGHT
BRING IT BACK TO HIS FELLOW PARTY MEMBERS IN SILVER CITY. 

MATUSOW TESTIFIED THAT THE PETITIONER DELIVERED HIS PLANNED LECTURE,
INFORMED HIS AUDIENCE OF THE "DO-DAY" IDEA, PRAISED THE SOVIET UNION'S
DISARMAMENT PLAN, REFERRED TO THE UNITED STATES AS THE AGGRESSOR IN
KOREA, AND URGED ALL TO READ THE "DAILY PEOPLE'S WORLD," IDENTIFIED BY
MATUSOW AS THE "WEST COAST COMMUNIST PARTY NEWSPAPER."  ANOTHER
WITNESS, AN EXPELLED MEMBER OF AMALGAMATED LOCAL 890, TESTIFIED THAT
PETITIONER, DURING 1950, 1951 AND 1952, REPEATEDLY URGED AT UNION
MEETINGS THAT THE UNION MEMBERS READ THAT PAPER. 

MATUSOW ALSO TESTIFIED THAT, IN ONE OF THEIR CONVERSATIONS, THE
PETITIONER TOLD HIM OF A PROGRAM HE WAS DEVELOPING WITH LEADERS OF THE
MEXICAN MINERS UNION TO NEGOTIATE SIMULTANEOUS EXPIRATION DATES OF
COLLECTIVE BARGAINING AGREEMENTS, TO FURTHER A JOINT ACTION OF MEXICAN
AND AMERICAN WORKERS TO CUT OFF PRODUCTION TO SLOW DOWN THE KOREAN WAR
EFFORT.  MATUSOW ALSO TESTIFIED THAT WHEN HE TOLD THE PETITIONER THAT
HE HAD JOINED THE TAOS CHAPTER OF THE MEXICAN-AMERICAN ASSOCIATION, THE
PETITIONER TOLD HIM THAT THIS WAS PROPER COMMUNIST WORK BECAUSE THE
ASSOCIATION WAS A KEY ORGANIZATION, CONTROLLED BY THE PARTY, FOR
COMMUNIST ACTIVITIES IN NEW MEXICO AND THAT HE, THE PETITIONER, WAS
ACTIVE IN THE ASSOCIATION IN THE SILVER CITY AREA.  (FN9) 

FORD AND MATUSOW WERE SUBJECTED TO VIGOROUS CROSS-EXAMINATION ABOUT
THEIR EMPLOYMENT AS INFORMERS FOR THE F.B.I.  FORD TESTIFIED THAT IN
1948 HE WENT TO THE F.B.I. AND OFFERED HIS SERVICES, WHICH WERE
ACCEPTED.  HE THEREAFTER REGULARLY SUBMITTED REPORTS TO THE F.B.I.,
"SOMETIMES ONCE A WEEK, SOMETIMES ONCE A MONTH, AND AT VARIOUS OTHER
TIMES; MAYBE THREE OR FOUR TIMES A WEEK, DEPENDING ON THE NUMBER OF
MEETINGS  ...  HE ATTENDED AND THE DISTANCE BETWEEN THE MEETINGS."  HE
SAID THAT HIS REPORTS WERE MADE IMMEDIATELY FOLLOWING EACH MEETING,
WHILE THE EVENTS WERE STILL FRESH IN HIS MEMORY.  HE COULD NOT RECALL,
HOWEVER, WHICH REPORTS WERE ORAL AND WHICH IN WRITING. 

THE PETITIONER MOVED "FOR AN ORDER DIRECTING AN INSPECTION OF REPORTS
OF THE WITNESS FORD TO THE FEDERAL BUREAU OF INVESTIGATION DEALING WITH
EACH OF THE MEETINGS WHICH HE SAID THAT HE ATTENDED WITH THE DEFENDANT
JENCKS IN THE YEARS 1948 AND 1949."  THE TRIAL JUDGE, WITHOUT STATING
REASONS, DENIED THE MOTION. 

MATUSOW, ON HIS CROSS-EXAMINATION, TESTIFIED THAT HE MADE BOTH ORAL
AND WRITTEN REPORTS TO THE F.B.I. ON EVENTS AT THE RANCH, INCLUDING HIS
CONVERSATIONS WITH THE PETITIONER.  THE TRIAL JUDGE, AGAIN WITHOUT
REASONS, DENIED THE MOTION TO REQUIRE "THE PROSECUTION TO PRODUCE IN
COURT THE REPORTS SUBMITTED TO THE F.B.I. BY THIS WITNESS (MATUSOW)
CONCERNING MATTERS WHICH HE SAW OR HEARD AT THE ...  RANCH DURING THE
PERIOD THAT HE WAS A GUEST THERE ...  ."  (FN10) 

THE GOVERNMENT OPPOSED PETITIONER'S MOTIONS AT THE TRIAL UPON THE
SOLE GROUND THAT A PRELIMINARY FOUNDATION WAS NOT LAID OF INCONSISTENCY
BETWEEN THE CONTENTS OF THE REPORTS AND THE TESTIMONY OF MATUSOW AND
FORD.  THE COURT OF APPEALS RESTED THE AFFIRMANCE PRIMARILY UPON THAT
GROUND.  (FN11)    BOTH THE TRIAL COURT AND THE COURT OF APPEALS
ERRED.  WE HOLD THAT THE PETITIONER WAS NOT REQUIRED TO LAY A
PRELIMINARY FOUNDATION OF INCONSISTENCY, BECAUSE A SUFFICIENT
FOUNDATION WAS ESTABLISHED BY THE TESTIMONY OF MATUSOW AND FORD THAT
THEIR REPORTS WERE OF THE EVENTS AND ACTIVITIES RELATED IN THEIR
TESTIMONY. 

THE RELIANCE OF THE COURT OF APPEALS UPON GORDON V. UNITED STATES,
344 U.S. 414, IS MISPLACED.  IT IS TRUE THAT ONE FACT MENTIONED IN THIS
COURT'S OPINION WAS THAT THE WITNESS ADMITTED THAT THE DOCUMENTS
INVOLVED CONTRADICTED HIS TESTIMONY.  HOWEVER, TO SAY THAT GORDON HELD
A PRELIMINARY SHOWING OF INCONSISTENCY A PREREQUISITE TO AN ACCUSED'S
RIGHT TO THE PRODUCTION FOR INSPECTION OF DOCUMENTS IN THE GOVERNMENT'S
POSSESSION, IS TO MISINTERPRET THE COURT'S OPINION.  THE NECESSARY
ESSENTIALS OF A FOUNDATION, EMPHASIZED IN THAT OPINION, AND PRESENT
HERE, ARE THAT "THE DEMAND WAS FOR PRODUCTION OF  ...  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. NOR WAS THIS A DEMAND FOR
STATEMENTS TAKEN FROM PERSONS OR INFORMANTS NOT OFFERED AS WITNESSES." 
344 U.S., AT 419.  WE REAFFIRM AND RE-EMPHASIZE THESE ESSENTIALS.  "FOR
PRODUCTION PURPOSES, IT NEED ONLY APPEAR THAT THE EVIDENCE IS RELEVANT,
COMPETENT, AND OUTSIDE OF ANY EXCLUSIONARY RULE  ...  ."  344 U.S., AT
420. 

THE CRUCIAL NATURE OF THE TESTIMONY OF FORD AND MATUSOW TO THE
GOVERNMENT'S CASE IS CONSPICUOUSLY APPARENT.  THE IMPEACHMENT OF THAT
TESTIMONY WAS SINGULARLY IMPORTANT TO THE PETITIONER.  THE VALUE OF THE
REPORTS FOR IMPEACHMENT PURPOSES WAS HIGHLIGHTED BY THE ADMISSIONS OF
BOTH WITNESSES THAT THEY COULD NOT REMEMBER WHAT REPORTS WERE ORAL AND
WHAT WRITTEN, AND BY MATUSOW'S ADMISSION:  "I DON'T RECALL WHAT I PUT
IN MY REPORTS TWO OR THREE YEARS AGO, WRITTEN OR ORAL, I DON'T KNOW
WHAT THEY WERE." 

EVERY EXPERIENCED TRIAL JUDGE AND TRIAL LAWYER KNOWS THE VALUE FOR
IMPEACHING PURPOSES OF STATEMENTS OF THE WITNESS RECORDING THE EVENTS
BEFORE TIME DULLS TREACHEROUS MEMORY.  FLAT CONTRADICTION BETWEEN THE
WITNESS' TESTIMONY AND THE VERSION OF THE EVENTS GIVEN IN HIS REPORTS
IS NOT THE ONLY TEST OF INCONSISTENCY.  THE OMISSION FROM THE REPORTS
OF FACTS RELATED AT THE TRIAL, OR A CONTRAST IN EMPHASIS UPON THE SAME
FACTS, EVEN A DIFFERENT ORDER OF TREATMENT, ARE ALSO RELEVANT TO THE
CROSS-EXAMINING PROCESS OF TESTING THE CREDIBILITY OF A WITNESS' TRIAL
TESTIMONY. 

REQUIRING THE ACCUSED FIRST TO SHOW CONFLICT BETWEEN THE REPORTS AND
THE TESTIMONY IS ACTUALLY TO DENY THE ACCUSED EVIDENCE RELEVANT AND
MATERIAL TO HIS DEFENSE.  THE OCCASION FOR DETERMINING A CONFLICT
CANNOT ARISE UNTIL AFTER THE WITNESS HAS TESTIFIED, AND UNLESS HE
ADMITS CONFLICT, AS IN GORDON, THE ACCUSED IS HELPLESS TO KNOW OR
DISCOVER CONFLICT WITHOUT INSPECTING THE REPORTS.  (FN12) A REQUIREMENT
OF A SHOWING OF CONFLICT WOULD BE CLEARLY INCOMPATIBLE WITH OUR
STANDARDS FOR THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL
COURTS AND MUST THEREFORE BE REJECTED.  FOR THE INTEREST OF THE UNITED
STATES IN A CRIMINAL PROSECUTION "  ...  IS NOT THAT IT SHALL WIN A
CASE, BUT THAT JUSTICE SHALL BE DONE  ...  ."  BERGER V. UNITED STATES,
295 U.S. 78, 88.  (FN13) 

THIS COURT HELD IN GOLDMAN V. UNITED STATES, 316 U.S. 129, 132, THAT
THE TRIAL JUDGE HAD DISCRETION TO DENY INSPECTION WHEN THE WITNESS "
...  DOES NOT USE HIS NOTES OR MEMORANDA RELATING TO HIS TESTIMONY IN
COURT  ...  ."  WE NOW HOLD THAT THE PETITIONER WAS ENTITLED TO AN
ORDER DIRECTING THE GOVERNMENT TO PRODUCE FOR INSPECTION ALL REPORTS OF
MATUSOW AND FORD IN ITS POSSESSION, WRITTEN AND, WHEN ORALLY MADE, AS
RECORDED BY THE F.B.I., TOUCHING THE EVENTS AND ACTIVITIES AS TO WHICH
THEY TESTIFIED AT THE TRIAL.  WE HOLD, FURTHER, THAT THE PETITIONER IS
ENTITLED TO INSPECT THE REPORTS TO DECIDE WHETHER TO USE THEM IN HIS
DEFENSE.  BECAUSE ONLY THE DEFENSE IS ADEQUATELY EQUIPPED TO DETERMINE
THE EFFECTIVE USE FOR PURPOSE OF DISCREDITING THE GOVERNMENT'S WITNESS
AND THEREBY FURTHERING THE ACCUSED'S DEFENSE, THE DEFENSE MUST
INITIALLY BE ENTITLED TO SEE THEM TO DETERMINE WHAT USE MAY BE MADE OF
THEM.  JUSTICE REQUIRES NO LESS.  (FN14) 

THE PRACTICE OF PRODUCING GOVERNMENT DOCUMENTS TO THE TRIAL JUDGE FOR
HIS DETERMINATION OF RELEVANCY AND MATERIALITY, WITHOUT HEARING THE
ACCUSED, IS DISAPPROVED.  (FN15)  RELEVANCY AND MATERIALITY FOR THE
PURPOSES OF PRODUCTION AND INSPECTION, WITH A VIEW TO USE ON CROSS
EXAMINATION, ARE ESTABLISHED WHEN THE REPORTS ARE SHOWN TO RELATE TO
THE TESTIMONY OF THE WITNESS.  ONLY AFTER INSPECTION OF THE REPORTS BY
THE ACCUSED, MUST THE TRIAL JUDGE DETERMINE ADMISSIBILITY - E.G.,
EVIDENTIARY QUESTIONS OF INCONSISTENCY, MATERIALITY AND RELEVANCY - OF
THE CONTENTS AND THE METHOD TO BE EMPLOYED FOR THE ELIMINATION OF PARTS
IMMATERIAL OR IRRELEVANT.  SEE GORDON V. UNITED STATES, 344 U.S., AT
418.   IN THE COURTS BELOW THE GOVERNMENT DID NOT ASSERT THAT THE
REPORTS WERE PRIVILEGED AGAINST DISCLOSURE ON GROUNDS OF NATIONAL
SECURITY, CONFIDENTIAL CHARACTER OF THE REPORTS, PUBLIC INTEREST OR
OTHERWISE.  IN ITS BRIEF IN THIS COURT, HOWEVER, THE GOVERNMENT ARGUES
THAT, ABSENT A SHOWING OF CONTRADICTION, "THE RULE URGED BY PETITIONER
...  DISREGARDS THE LEGITIMATE INTEREST THAT EACH PARTY - INCLUDING THE
GOVERNMENT - HAS IN SAFEGUARDING THE PRIVACY OF ITS FILES, PARTICULARLY
WHERE THE DOCUMENTS IN QUESTION WERE OBTAINED IN CONFIDENCE. 
PRODUCTION OF SUCH DOCUMENTS, EVEN TO A COURT, SHOULD NOT BE COMPELLED
IN THE ABSENCE OF A PRELIMINARY SHOWING BY THE PARTY MAKING THE
REQUEST."  THE PETITIONER'S COUNSEL, BELIEVING THAT COURT OF APPEALS'
DECISIONS IMPOSED SUCH A QUALIFICATION, RESTRICTED HIS MOTIONS TO A
REQUEST FOR PRODUCTION OF THE REPORTS TO THE TRIAL JUDGE FOR THE
JUDGE'S INSPECTION AND DETERMINATION WHETHER AND TO WHAT EXTENT THE
REPORTS SHOULD BE MADE AVAILABLE TO THE PETITIONER. 

IT IS UNQUESTIONABLY TRUE THAT THE PROTECTION OF VITAL NATIONAL
INTERESTS MAY MILITATE AGAINST PUBLIC DISCLOSURE OF DOCUMENTS IN THE
GOVERNMENT'S POSSESSION.  THIS HAS BEEN RECOGNIZED IN DECISIONS OF THIS
COURT IN CIVIL CAUSES WHERE THE COURT HAS CONSIDERED THE STATUTORY
AUTHORITY CONFERRED UPON THE DEPARTMENTS OF GOVERNMENT TO ADOPT
REGULATIONS "NOT INCONSISTENT WITH LAW, FOR ...  USE  ...  OF THE
RECORDS, PAPERS  ...  APPERTAINING" TO HIS DEPARTMENT.  (FN16)  THE
ATTORNEY GENERAL HAS ADOPTED REGULATIONS PURSUANT TO THIS AUTHORITY
DECLARING ALL JUSTICE DEPARTMENT RECORDS CONFIDENTIAL AND THAT NO
DISCLOSURE, INCLUDING DISCLOSURE IN RESPONSE TO SUBPOENA, MAY BE MADE
WITHOUT HIS PERMISSION.  (FN17) 

BUT THIS COURT HAS NOTICED, IN UNITED STATES V. REYNOLDS, 345 U.S. 1,
THE HOLDINGS OF THE COURT OF APPELS FOR THE SECOND CIRCUIT (FN18) THAT,
IN CRIMINAL CAUSES "  ...  THE GOVERNMENT CAN INVOKE ITS EVIDENTIARY
PRIVILEGES ONLY AT THE PRICE OF LETTING THE DEFENDANT GO FREE.  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 ...  ."  345 U.S., AT 12. 

IN UNITED STATES V. ANDOLSCHEK, 142 F.2D 503, 506, JUDGE LEARNED HAND
SAID: 

"  ...  WHILE WE MUST ACCEPT IT AS LAWFUL FOR A DEPARTMENT OF THE
GOVERNMENT TO SUPPRESS DOCUMENTS, EVEN WHEN THEY WILL HELP DETERMINE
CONTROVERSIES BETWEEN THIRD PERSONS, WE CANNOT AGREE THAT THIS SHOULD
INCLUDE THEIR SUPPRESSION IN A CRIMINAL PROSECUTION, FOUNDED UPON THOSE
VERY DEALINGS TO WHICH THE DOCUMENTS RELATE, AND WHOSE CRIMINALITY THEY
WILL, OR MAY, TEND TO EXCULPATE.  SO FAR AS THEY DIRECTLY TOUCH THE
CRIMINAL DEALINGS, THE PROSECUTION NECESSARILY ENDS ANY CONFIDENTIAL
CHARACTER THE DOCUMENTS MAY POSSESS; IT MUST BE CONDUCTED IN THE OPEN,
AND WILL LAY BARE THEIR SUBJECT MATTER.  THE GOVERNMENT MUST CHOOSE;
EITHER IT MUST LEAVE THE TRANSACTIONS IN THE OBSCURITY FROM WHICH A
TRIAL WILL DRAW THEM, OR IT MUST EXPOSE THEM FULLY.  NOR DOES IT SEEM
TO US POSSIBLE TO DRAW ANY LINE BETWEEN DOCUMENTS WHOSE CONTENTS BEARS
DIRECTLY UPON THE CRIMINAL TRANSACTIONS, AND THOSE WHICH MAY BE ONLY
INDIRECTLY RELEVANT.  NOT ONLY WOULD SUCH A DISTINCTION BE EXTREMELY
DIFFICULT TO APPLY IN PRACTICE, BUT THE SAME REASONS WHICH FORBID
SUPPRESSION IN ONE CASE FORBID IT IN THE OTHER, THOUGH NOT, PERHAPS,
QUITE SO IMPERATIVELY  ...  ." 

WE HOLD THAT THE CRIMINAL ACTION MUST BE DISMISSED WHEN THE
GOVERNMENT, ON THE GROUND OF PRIVILEGE, ELECTS NOT TO COMPLY WITH AN
ORDER TO PRODUCE, FOR THE ACCUSED'S INSPECTION AND FOR ADMISSION IN
EVIDENCE, RELEVANT STATEMENTS OR REPORTS IN ITS POSSESSION OF
GOVERNMENT WITNESSES TOUCHING THE SUBJECT MATTER OF THEIR TESTIMONY AT
THE TRIAL.  ACCORD, ROVIARO V. UNITED STATES, 353 U.S. 53, 60-61.  THE
BURDEN IS THE GOVERNMENT'S, NOT TO BE SHIFTED TO THE TRIAL JUDGE, TO
DECIDE WHETHER THE PUBLIC PREJUDICE OF ALLOWING THE CRIME TO GO
UNPUNISHED IS GREATER THAN THAT ATTENDANT UPON THE POSSIBLE DISCLOSURE
OF STATE SECRETS AND OTHER CONFIDENTIAL INFORMATION IN THE GOVERNMENT'S
POSSESSION.  REVERSED. 

FN1  61 STAT. 143, 146, AS AMENDED, 65 STAT. 602, 29 U.S.C. SEC.
159(H).  SECTION 9(H) PROVIDES THAT PROCESSES OF THE NATIONAL LABOR
RELATIONS BOARD WILL BE UNAVAILABLE TO A LABOR ORGANIZATION " ...
UNLESS THERE IS ON FILE WITH THE BOARD AN AFFIDAVIT EXECUTED  ...  BY
EACH OFFICER OF SUCH LABOR ORGANIZATION  ...  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  ...
." 

FN2  62 STAT. 749. 

FN3  226 F.2D 540. 

FN4  226 F.2D 553. 

FN5 350 U.S. 980. 

FN6  BECAUSE OF OUR DISPOSITION OF THIS CASE, IT IS UNNECESSARY TO
CONSIDER THE ALLEGED ERRORS IN THESE INSTRUCTIONS. 

FN7  FROM 1948 THROUGH 1953, FORD WAS PAID $7,025 FOR HIS SERVICES. 
OF THAT SUM, APPROXIMATELY $3,325 COVERED THE PERIOD TO WHICH HIS
TESTIMONY RELATED. 

FN8  OTHER ACTIVITIES OF MATUSOW ARE DESCRIBED IN COMMUNIST PARTY OF
THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S. 115,
AND UNITED STATES V. FLYNN, 130 F. SUPP. 412. 

FN9  MATUSOW RECANTED AS DELIBERATELY FALSE THE TESTIMONY GIVEN BY
HIM AT THE TRIAL.  ON THE BASIS OF THIS RECANTATION, THE PETITIONER
MOVED FOR A NEW TRIAL, WHILE HIS APPEAL FROM THE CONVICTION WAS
PENDING, ON GROUNDS OF NEWLY DISCOVERED EVIDENCE.  AFTER EXTENDED
HEARINGS, THE DISTRICT COURT DENIED THE MOTION. 

FN10  DURING THE HEARINGS ON THE MOTION FOR A NEW TRIAL, THE
PETITIONER MADE SEVERAL REQUESTS FOR THE PRODUCTION OF DOCUMENTS IN THE
POSSESSION OF THE GOVERNMENT, RELATING TO THE TESTIMONY GIVEN.  THESE
MOTIONS WERE DENIED.  BECAUSE OF OUR DISPOSITION OF THIS CASE, IT IS
UNNECESSARY TO CONSIDER THESE RULINGS. 

FN11  IN UPHOLDING THE REFUSAL TO REQUIRE THE PRODUCTION OF THE
REPORTS, THE COURT OF APPEALS SAID: 

"  ...  UPON A PROPER SHOWING THAT THE GOVERNMENT HAS POSSESSION OF
SUCH INCONSISTENT STATEMENTS AND THE PRESENCE OF THE OTHER REQUISITE
CONDITIONS, A PERSON CHARGED WITH CRIME WOULD BE PERMITTED TO EXAMINE
AND USE THEM.  BUT NO SUCH SHOWING WAS MADE HERE  ...  ."  226 F.2D, AT
552. 

FN12  CF. UNITED STATES V. BURR, 25 FED. CAS. 187, WHEREIN CHIEF
JUSTICE MARSHALL, WHEN CONFRONTED WITH A REQUEST FOR THE INSPECTION OF
A LETTER ADDRESSED TO THE PRESIDENT AND IN THE POSSESSION OF THE
ATTORNEY FOR THE UNITED STATES, STATED: 

"NOW, IF A PAPER BE IN POSSESSION OF THE OPPOSITE PARTY, WHAT
STATEMENT OF ITS CONTENTS OR APPLICABILITY CAN BE EXPECTED FROM THE
PERSON WHO CLAIMS ITS PRODUCTION, HE NOT PRECISELY KNOWING ITS
CONTENTS?  ...  . 

"  ...  IT IS OBJECTED THAT THE PARTICULAR PASSAGES OF THE LETTER
WHICH ARE REQUIRED ARE NOT POINTED OUT.  BUT HOW CAN THIS BE DONE WHILE
THE LETTER ITSELF IS WITHHELD?  ..."  25 FED. CAS., AT 191. 

FN13  UNITED STATES V. SCHNEIDERMAN, 106 F. SUPP. 731; PEOPLE V.
DELLABONDA, 265 MICH. 486, 251 N.W. 594; SEE CANON 5, AMERICAN BAR
ASSOCIATION, CANONS OF PROFESSIONAL ETHICS (1947). 

FN14  CHIEF JUSTICE MARSHALL ALSO SAID IN UNITED STATES V. BURR, 25
FED. CAS. 187: 

"LET IT BE SUPPOSED THAT THE LETTER MAY NOT CONTAIN ANYTHING
RESPECTING THE PERSON NOW BEFORE THE COURT.  STILL IT MAY RESPECT A
WITNESS MATERIAL IN THE CASE, AND BECOME IMPORTANT BY BEARING ON HIS
TESTIMONY.  DIFFERENT REPRESENTATIONS MAY HAVE BEEN MADE BY THAT
WITNESS, OR HIS CONDUCT MAY HAVE BEEN SUCH AS TO AFFECT HIS TESTIMONY. 
IN VARIOUS MODES A PAPER MAY BEAR UPON THE CASE, ALTHOUGH BEFORE THE
CASE BE OPENED ITS PARTICULAR APPLICATION CANNOT BE PERCEIVED BY THE
JUDGE  ...  ."  25 FED. CAS., AT 191. 

WHAT IS TRUE BEFORE THE CASE IS OPENED IS EQUALLY TRUE AS THE CASE
UNFOLDS.  THE TRIAL JUDGE CANNOT PERCEIVE OR DETERMINE THE RELEVANCY
AND MATERIALITY OF THE DOCUMENTS TO THE DEFENSE WITHOUT HEARING DEFENSE
ARGUMENT, AFTER INSPECTION, AS TO ITS BEARING UPON THE CASE. 

FN15  SEE, E.G., UNITED STATES V. GRAYSON, 166 F.2D 863, 869; UNITED
STATES V. BEEKMAN, 155 F.2D 580, 584; UNITED STATES V. EBELING, 146
F.2D 254, 256; UNITED STATES V. COHEN, 145 F.2D 82, 92; UNITED STATES
V. KRULEWITCH, 145 F.2D 76, 78. 

FN16  R.S. SEC. 161, 5 U.S.C. SEC. 22; UNITED STATES V. REYNOLDS, 345
U.S. 1; CF. TOTTEN V. UNITED STATES, 92 U.S. 105. 

FN17  ATTY. GEN. ORDER NO. 3229 (1939), 28 CFR, 1946 SUPP., SEC.
51.71; ATTY. GEN. ORDER NO. 3229, SUPP. 2, PIKE & FISCHER ADMIN. LAW
2D, DEPT. OF JUSTICE 1 (1947); ATTY. GEN. ORDER NO. 3229, REV., 18 FED.
REG. 1368 (1953).    FN18  UNITED STATES V. BEEKMAN, 155 F.2D 580;
UNITED STATES V. ANDOLSCHEK, 142 F.2D 503. 

MR. JUSTICE FRANKFURTER JOINS THE OPINION OF THE COURT, BUT DEEMING
THAT THE QUESTIONS RELATING TO THE INSTRUCTIONS TO THE JURY SHOULD BE
DEALT WITH, SINCE A NEW TRIAL HAS BEEN DIRECTED, HE AGREES WITH THE
RESPECTS IN WHICH, AND THE REASONS FOR WHICH, MR. JUSTICE BURTON FINDS
THEM ERRONEOUS. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE HARLAN JOINS, CONCURRING IN THE
RESULT. 

BECAUSE OF THE IMPORTANCE OF THIS CASE TO THE ADMINISTRATION OF
CRIMINAL JUSTICE IN THE FEDERAL COURTS, I BELIEVE IT APPROPRIATE TO SET
FORTH BRIEFLY THE DIFFERENT ROUTE BY WHICH I REACH THE SAME RESULT AS
DOES THE COURT. 

FORD AND MATUSOW, AS THE COURT'S OPINION INDICATES, WERE CRUCIAL
GOVERNMENT WITNESSES BECAUSE THEIR TESTIMONY SUPPLIED THE PRINCIPAL
EVIDENCE RELATING TO THE PERIOD IMMEDIATELY SURROUNDING THE FILING OF
PETITIONER'S ALLEGEDLY FALSE AFFIDAVIT.  CROSS-EXAMINATION BROUGHT OUT
THE FACT THAT EACH HAD MADE ORAL OR WRITTEN REPORTS TO THE FEDERAL
BUREAU OF INVESTIGATION RELATING TO THE RESPECTIVE EVENTS ABOUT WHICH
EACH HAD TESTIFIED ON DIRECT EXAMINATION.  HAVING ESTABLISHED THAT
FACT, PETITIONER SOUGHT AN ORDER REQUIRING THE GOVERNMENT TO PRODUCE,
FOR INSPECTION BY THE COURT, THE REPORTS RELATING TO THOSE MATTERS
ABOUT WHICH EACH WITNESS HAD TESTIFIED.  THE PROCEDURE TO BE FOLLOWED
WAS CAREFULLY SPECIFIED:  THE COURT WAS TO DETERMINE WHETHER THE
REPORTS HAD EVIDENTIARY VALUE FOR IMPEACHMENT OF THE CREDIBILITY OF
FORD OR MATUSOW; IF THE COURT FOUND THAT THEY HAD VALUE FOR THAT
PURPOSE, IT WAS THEN TO MAKE THEM AVAILABLE TO PETITIONER FOR HIS USE
IN CROSS-EXAMINATION.   THE GOVERNMENT OPPOSED EACH MOTION ON THE
GROUND THAT NO SHOWING OF CONTRADICTION BETWEEN THE WITNESS' TESTIMONY
AND HIS REPORTS HAD BEEN MADE AS REQUIRED BY A CONTROLLING FIFTH
CIRCUIT DECISION, SHELTON V. UNITED STATES, 205 F.2D 806.  APPARENTLY
ON THAT GROUND, THE TRIAL COURT DENIED THE MOTIONS. 

PETITIONER'S REQUESTS WERE LIMITED TO A NARROW CATEGORY OF REPORTS
DEALING WITH SPECIFIED MEETINGS AND CONVERSATIONS.  THE PURPOSE OF THE
REQUESTS - TO IMPEACH THE CREDIBILITY OF CRUCIAL GOVERNMENT WITNESSES -
WAS MADE CLEAR.  PETITIONER DID NOT ASK TO INSPECT THE DOCUMENTS
HIMSELF; HE SOUGHT ACCESS ONLY TO THOSE PORTIONS OF THE REPORTS WHICH
THE TRIAL COURT MIGHT DETERMINE TO HAVE EVIDENTIARY VALUE FOR
IMPEACHMENT PURPOSES, AND TO BE UNPRIVILEGED.  (FN1) 

I AGREE THAT, UNDER SUCH CIRCUMSTANCES, IT WAS UNNECESSARY FOR
PETITIONER TO SHOW THAT FORD'S AND MATUSOW'S TRIAL TESTIMONY WAS
CONTRADICTED IN SOME RESPECT BY THEIR CONTEMPORANEOUS REPORTS. 
ALTHOUGH SOME FEDERAL COURTS HAVE REQUIRED A SHOWING OF CONTRADICTION,
(FN2) THIS COURT NEVER HAS DONE SO.  (FN3)  A RULE REQUIRING A SHOWING
OF CONTRADICTION IN EVERY CASE WOULD NOT SERVE THE ENDS OF JUSTICE.  I
CONCUR, THEREFORE, IN THAT PORTION OF THE COURT'S OPINION HOLDING THAT
PETITIONER LAID A SUFFICIENT FOUNDATION FOR THE PRODUCTION OF THE
REPORTS. 

I WOULD NOT, HOWEVER, REPLACE THE INFLEXIBLE AND NARROW RULE ADOPTED
BY THE COURTS BELOW WITH THE BROADER, BUT EQUALLY RIGID RULE ANNOUNCED
BY THE COURT.  IN MATTERS RELATING TO THE PRODUCTION OF EVIDENCE OR THE
SCOPE OF CROSS-EXAMINATION, A "LARGE DISCRETION MUST BE ALLOWED THE
TRIAL JUDGE."  GOLDMAN V. UNITED STATES, 316 U.S. 129, 132; GLASSER V.
UNITED STATES, 315 U.S. 60, 83; ALFORD V. UNITED STATES, 282 U.S. 687,
694.  THE APPROPRIATE DETERMINATION OF A MOTION TO PRODUCE REPORTS MADE
IN CONNECTION WITH THE EXAMINATION OF A WITNESS DEPENDS UPON THE
SIGNIFICANCE OF THE FACTS SOUGHT TO BE ESTABLISHED, AND UPON THE
POTENTIAL USE OF THE REQUESTED DOCUMENT IN PROVING THOSE FACTS.  SINCE
THAT DETERMINATION DEPENDS ON "NUMEROUS AND SUBTLE CONSIDERATIONS
DIFFICULT TO DETECT OR APPRAISE FROM A COLD RECORD  ...  ," THE TRIAL
COURT'S DISCRETION SHOULD BE UPHELD IN THE ABSENCE OF A "CLEAR SHOWING
OF PREJUDICIAL ABUSE OF DISCRETION  ...  ."  CF. MICHELSON V. UNITED
STATES, 335 U.S. 469, 480.  WE HAVE SO HELD EVEN WHEN THE DOCUMENTS
SOUGHT TO BE PRODUCED HAVE BEEN USED AT THE TRIAL FOR THE PURPOSE OF
REFRESHING A WITNESS' RECOLLECTION.  UNITED STATES V. SOCONY-VACUUM OIL
CO., 310 U.S. 150, 232-234.  WHEN THE DOCUMENTS HAVE NOT BEEN SO USED
AND ARE SOUGHT ONLY TO IMPEACH THE CREDIBILITY OF ADVERSE WITNESSES,
AND NOT TO PROVE THE FACTS STATED THEREIN, THE SAME CONCLUSION IS EVEN
MORE COMPELLING. 

THE COURT GOES BEYOND THE REQUEST OF PETITIONER THAT REPORTS BE
PRODUCED FOR EXAMINATION BY THE TRIAL COURT AND, IN EFFECT, SEEMS TO
HOLD THAT THE GOVERNMENT WAIVES ANY PRIVILEGES IT MAY HAVE WITH RESPECT
TO DOCUMENTS IN ITS POSSESSION BY PLACING THE AUTHOR OF THOSE DOCUMENTS
ON THE WITNESS STAND IN A CRIMINAL PROSECUTION.  THE GOVERNMENT'S
PRIVILEGES WITH RESPECT TO STATE SECRETS AND THE IDENTITY OF
CONFIDENTIAL INFORMANTS EMBODY IMPORTANT CONSIDERATIONS OF PUBLIC
POLICY.  THEY ARE PECULIAR PRIVILEGES IN THAT THEY REQUIRE THE
WITHHOLDING OF EVIDENCE NOT ONLY FROM THE JURY, BUT ALSO FROM THE
DEFENDANT.  SEE ROVIARO V. UNITED STATES, 353 U.S. 53 (IDENTITY OF
INFORMERS); REYNOLDS V. UNITED STATES, 345 U.S. 1 (STATE SECRETS). 
ONCE THE DEFENDANT LEARNS THE STATE SECRET OR THE IDENTITY OF THE
INFORMER, THE UNDERLYING BASIS FOR THE PRIVILEGE DISAPPEARS, AND THERE
USUALLY REMAINS LITTLE NEED TO CONCEAL THE PRIVILEGED EVIDENCE FROM THE
JURY.  THUS, WHEN THE GOVERNMENT IS A PARTY, THE PRESERVATION OF THESE
PRIVILEGES IS DEPENDENT UPON NONDISCLOSURE OF THE PRIVILEGED EVIDENCE
TO THE DEFENDANT.  THIS MAKES IT NECESSARY FOR THE TRIAL COURT, BEFORE
DISCLOSING THE PRIVILEGED MATERIAL TO THE DEFENDANT, TO PASS ON THE
QUESTION BY EXAMINING IN CAMERA THE PORTIONS CLAIMED TO BE PRIVILEGED. 
CF. BOWMAN DAIRY CO. V. UNITED STATES, 341 U.S. 214, 221.  THERE IS
NOTHING NOVEL OR UNFAIR ABOUT SUCH A PROCEDURE.  ACCORDING TO WIGMORE,
IT IS CUSTOMARY.   "  ...  IT IS OBVIOUSLY NOT FOR THE WITNESS TO
WITHHOLD THE DOCUMENTS UPON HIS MERE ASSERTION THAT THEY ARE NOT
RELEVANT OR THAT THEY ARE PRIVILEGED.  THE QUESTION OF RELEVANCY IS
NEVER ONE FOR THE WITNESS TO CONCERN HIMSELF WITH; NOR IS THE
APPLICABILITY OF A PRIVILEGE TO BE LEFT TO HIS DECISION.   IT IS HIS
DUTY TO BRING WHAT THE COURT REQUIRES; AND THE COURT CAN THEN TO ITS
OWN SATISFACTION DETERMINE BY INSPECTION WHETHER THE DOCUMENTS PRODUCED
ARE IRRELEVANT OR PRIVILEGED.  THIS DOES NOT DEPRIVE THE WITNESS OF ANY
RIGHTS OF PRIVACY, SINCE THE COURT'S DETERMINATION IS MADE BY ITS OWN
INSPECTION, WITHOUT SUBMITTING THE DOCUMENTS TO THE OPPONENT'S VIEW
...  ."  VIII WIGMORE, EVIDENCE (3D ED. 1940), 117-118. 

NUMEROUS FEDERAL DECISIONS HAVE FOLLOWED THIS PRACTICE WITH RESPECT
TO THE TYPE OF DOCUMENTS HERE INVOLVED - CONTEMPORANEOUS REPORTS MADE
BY A GOVERNMENT INVESTIGATOR OR INFORMER WHO LATER TESTIFIES AT THE
TRIAL.  (FN4)  THIS PROCEDURE PROTECTS THE LEGITIMATE PUBLIC INTEREST
IN SAFEGUARDING EXECUTIVE FILES.  IT ALSO RESPECTS THE INTERESTS OF
JUSTICE BY PERMITTING AN ACCUSED TO RECEIVE ALL INFORMATION NECESSARY
TO HIS DEFENSE.  THE ACCUSED IS GIVEN AN OPPORTUNITY TO ARGUE THAT THE
PRIVILEGE ASSERTED BY THE GOVERNMENT IS INAPPLICABLE AND THAT, EVEN IF
APPLICABLE, HIS NEED FOR THE EVIDENCE, UNDER THE CIRCUMSTANCES OF THE
CASE, OUTWEIGHS THE GOVERNMENT'S INTEREST IN MAINTAINING SECRECY.  THE
PROBLEM IS CLOSELY RELATED TO THAT INVOLVED IN ROVIARO V. UNITED
STATES, SUPRA, DEALING WITH THE NECESSITY OF THE DISCLOSURE OF AN
INFORMER'S IDENTITY IN A CRIMINAL CASE.  THERE THIS COURT SAID: 

"NO FIXED RULE WITH RESPECT TO DISCLOSURE IS JUSTIFIABLE.  THE
PROBLEM IS ONE THAT CALLS FOR BALANCING THE PUBLIC INTEREST IN
PROTECTING THE FLOW OF INFORMATION AGAINST THE INDIVIDUAL'S RIGHT TO
PREPARE HIS DEFENSE.  WHETHER A PROPER BALANCE RENDERS NON-DISCLOSURE
ERRONEOUS MUST DEPEND ON THE PARTICULAR CIRCUMSTANCES OF EACH CASE,
TAKING INTO CONSIDERATION THE CRIME CHARGED, THE POSSIBLE DEFENSES, THE
POSSIBLE SIGNIFICANCE OF THE INFORMER'S TESTIMONY, AND OTHER RELEVANT
FACTORS."  353 U.S., AT 62. 

THE TRIAL JUDGE EXERCISES HIS DISCRETION WITH KNOWLEDGE OF THE ISSUES
INVOLVED IN THE CASE, THE NATURE AND IMPORTANCE OF THE GOVERNMENT'S
INTEREST IN MAINTAINING SECRECY, AND THE DEFENDANT'S NEED FOR
DISCLOSURE.  BY VESTING THIS DISCRETION IN THE TRIAL JUDGE, THE
CONFLICTING INTERESTS ARE BALANCED, AND A JUST DECISION IS REACHED IN
THE INDIVIDUAL CASE WITHOUT NEEDLESS SACRIFICE OF IMPORTANT PUBLIC
INTERESTS.  (FN5) 

I ALSO DISAGREE WITH THE COURT'S HOLDING THAT THE FAILURE TO PRODUCE
THE RECORDS TO PETITIONER NECESSITATES A NEW TRIAL.  PETITIONER
REQUESTED ONLY THAT THE RECORDS BE PRODUCED TO THE TRIAL COURT.  (FN6)
HE IS ENTITLED TO NO MORE.  WHETHER A NEW TRIAL IS REQUIRED SHOULD
DEPEND ON THE CONTENTS OF THE REQUESTED REPORTS.  IF THE REPORTS
CONTAIN MATERIAL THAT THE TRIAL COURT FINDS HAS EVIDENTIARY VALUE TO
PETITIONER, A NEW TRIAL SHOULD BE GRANTED IN ORDER THAT PETITIONER MAY
USE IT. BUT IF THE REPORTS DO NOT CONTAIN CONTRADICTORY OR EXCULPATORY
MATERIAL HELPFUL TO PETITIONER, NO POSSIBLE PREJUDICE COULD HAVE
RESULTED FROM THE TRIAL COURT'S DENIALS OF PETITIONER'S MOTIONS.  (FN7)
WERE IT NOT FOR THE FACT THAT I BELIEVE THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN INSTRUCTING THE JURY WITH RESPECT TO THE MEANING OF
MEMBERSHIP AND AFFILIATION, I WOULD VACATE THE JUDGMENT BELOW AND
REMAND TO THE TRIAL COURT WITH INSTRUCTIONS TO EXAMINE THE REPORTS AND
TO DETERMINE, IN THE LIGHT OF THE ENTIRE RECORD, WHETHER THE FAILURE TO
PRODUCE THE REPORTS WAS PREJUDICIAL TO PETITIONER.  (FN8) 

HOWEVER, I BELIEVE THE TRIAL COURT FAILED TO GIVE THE JURY SUFFICIENT
GUIDANCE WITH RESPECT TO THE MEANING OF THE PHRASES "MEMBER OF THE
COMMUNIST PARTY," AND "AFFILIATED WITH SUCH PARTY" AS THEY ARE USED IN
SEC. 9(H) OF THE LABOR MANAGEMENT RELATIONS ACT, 61 STAT. 146, 29
U.S.C.  SEC. 159(H).  THE INSTRUCTION GIVEN AS TO MEMBERSHIP WAS AS
FOLLOWS: 

"IN CONSIDERING WHETHER OR NOT THE DEFENDANT WAS A MEMBER OF THE
COMMUNIST PARTY, YOU MAY CONSIDER CIRCUMSTANTIAL EVIDENCE, AS WELL AS
DIRECT.  YOU MAY CONSIDER WHETHER OR NOT HE ATTENDED COMMUNIST PARTY
MEETINGS, WHETHER OR NOT HE HELD AN OFFICE IN THE COMMUNIST PARTY,
WHETHER OR NOT HE ENGAGED IN OTHER CONDUCT CONSISTENT ONLY WITH
MEMBERSHIP IN THE COMMUNIST PARTY AND ALL OTHER EVIDENCE, EITHER DIRECT
OR CIRCUMSTANTIAL, WHICH BEARS OR MAY BEAR UPON THE QUESTION OF WHETHER
OR NOT HE WAS A MEMBER OF THE COMMUNIST PARTY ON APRIL 28, 1950." 

THIS INSTRUCTION FAILED TO EMPHASIZE TO THE JURY THE ESSENTIAL
ELEMENT OF MEMBERSHIP IN AN ORGANIZED GROUP - THE DESIRE OF AN
INDIVIDUAL TO BELONG TO THE ORGANIZATION AND A RECOGNITION BY THE
ORGANIZATION THAT IT CONSIDERS HIM AS A MEMBER.  (FN9) 

THE INSTRUCTION ON AFFILIATION ALSO WAS DEFECTIVE.  AFTER QUOTING
DICTIONARY DEFINITIONS EMPLOYING SYNONYMOUS WORDS, THE TRIAL COURT
MERELY SAID:  "AFFILIATION  ...  MEANS SOMETHING LESS THAN MEMBERSHIP
BUT MORE THAN SYMPATHY.  AFFILIATION WITH THE COMMUNIST PARTY MAY BE
PROVED BY EITHER CIRCUMSTANTIAL OR DIRECT EVIDENCE, OR BOTH."  THIS
INSTRUCTION ALLOWED THE JURY TO CONVICT PETITIONER ON THE BASIS OF ACTS
OF INTERMITTENT COOPERATION.  IT DID NOT REQUIRE A CONTINUING COURSE OF
CONDUCT "ON A FAIRLY PERMANENT BASIS" "THAT COULD NOT BE ABRUPTLY ENDED
WITHOUT GIVING AT LEAST REASONABLE CAUSE FOR THE CHARGE OF A BREACH OF
GOOD FAITH."  (FN10) 

BECAUSE OF THESE ERRORS IN THE INSTRUCTIONS, PETITIONER IS ENTITLED
TO A NEW TRIAL.  ACCORDINGLY, I CONCUR IN THE JUDGMENT OF THE COURT. 

FN1  IN HIS BRIEF, PETITIONER STATES: 

"PETITIONER ASKED ONLY THAT THE REPORTS BE PRODUCED TO THE TRIAL
JUDGE SO THAT HE COULD EXAMINE THEM AND DETERMINE WHETHER THEY HAD
EVIDENTIARY VALUE FOR IMPEACHMENT PURPOSES.  PETITIONER SOUGHT ACCESS
ONLY TO THOSE PORTIONS OF THE REPORTS HAVING THIS VALUE.  THE MOTION
THEREFORE PROPOSED NO BROAD FORAY INTO THE GOVERNMENT'S FILES AND
AFFORDED THE JUDGE EVERY OPPORTUNITY TO PROTECT THE GOVERNMENT'S
LEGITIMATE PRIVILEGE AS TO THE MATTERS NOT CONNECTED WITH THIS CASE." 

FN2  SCANLON V. UNITED STATES, 223 F.2D 382, 385-386; SHELTON V.
UNITED STATES, 205 F.2D 806, 814-815; CHRISTOFFEL V. UNITED STATES, 91
U.S. APP. D.C. 241, 244-247, 200 F.2D 734, 737-739, REV'D ON OTHER
GROUNDS, 345 U.S. 947; D'AQUINO V. UNITED STATES, 192 F.2D 338, 375;
UNITED STATES V. DE NORMAND, 149 F.2D 622, 625-626; UNITED STATES V.
EBELING, 146 F.2D 254, 257; LITTLE V. UNITED STATES, 93 F.2D 401;
ARNSTEIN V. UNITED STATES, 54 APP. D.C. 199, 203, 296 F. 946, 950. 

FN3  IN GORDON V. UNITED STATES, 344 U.S. 414, THE PETITIONERS HAD
SHOWN THAT WRITTEN STATEMENTS GIVEN TO GOVERNMENT AGENTS BY A KEY
GOVERNMENT WITNESS CONTRADICTED THE WITNESS' TRIAL TESTIMONY.  IN
HOLDING THAT THE TRIAL COURT ERRED IN DENYING PETITIONERS' MOTION FOR
THE PRODUCTION AND INSPECTION OF THESE STATEMENTS, THE COURT WAS
DECIDING THAT CASE ON ITS FACTS.  I DO NOT REGARD IT AS ESTABLISHING A
RULE THAT A SHOWING OF CONTRADICTION IS AN ESSENTIAL ELEMENT OF THE
FOUNDATION PRECEDENT TO PRODUCTION.    FN4  SEE, E.G., UNITED STATES V.
COPLON, 185 F.2D 629, 638; UNITED STATES V. BEEKMAN, 155 F.2D 580, 584;
UNITED STATES V. COHEN, 145 F.2D 82, 92; UNITED STATES V. KRULEWITCH,
145 F.2D 76, 79; UNITED STATES V. FLYNN, 130 F. SUPP. 412; UNITED
STATES V. MESAROSH, 116 F. SUPP. 345, 350; UNITED STATES V.
SCHNEIDERMAN, 106 F. SUPP. 731, 735-738. 

FN5  PRIVILEGED MATERIAL SOMETIMES CAN BE EXCISED FROM THE REPORTS
WITHOUT DESTROYING THEIR VALUE TO THE DEFENDANT.  ONLY WHEN DELETION IS
IMPRACTICABLE IS THE COURT COMPELLED TO CHOOSE BETWEEN DISCLOSING THE
DOCUMENT AS A WHOLE AND WITHHOLDING IT COMPLETELY.  MATERIAL WITHHELD
FROM THE DEFENDANT SHOULD BE SEALED AS PART OF THE RECORD SO THAT AN
APPELLATE COURT MAY REVIEW THE ACTION OF THE TRIAL COURT AND CORRECT
ANY ABUSE OF DISCRETION. 

FN6  SEE N. 1, SUPRA. 

FN7  RULE 52(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES:
"ANY ERROR, DEFECT, IRREGULARITY OR VARIANCE WHICH DOES NOT AFFECT
SUBSTANTIAL RIGHTS SHALL BE DISREGARDED."  SEE LUTWAK V. UNITED STATES,
344 U.S. 604, 619; KOTTEAKOS V. UNITED STATES, 328 U.S. 750, 756-777. 
THERE ARE MANY CASES IN WHICH NONPRODUCTION OF DOCUMENTS HAS BEEN HELD
TO BE HARMLESS ERROR.  THREE COMPARATIVELY RECENT CASES, DEALING WITH
REPORTS OF LAW-ENFORCEMENT OFFICERS ARE UNITED STATES V. SANSONE, 231
F.2D 887; MONTGOMERY V. UNITED STATES, 203 F.2D 887, 893-894; AND BUNDY
V. UNITED STATES, 90 U.S. APP. D.C. 12, 193 F.2D 694. 

FN8  THE TRIAL COURT IS THE APPROPRIATE FORUM TO CONSIDER THE
POSSIBLE PREJUDICIAL EFFECT OF THE ERROR.  SEE, E.G., COMMUNIST PARTY
V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S. 115; REMMER V. UNITED
STATES, 347 U.S. 227. 

FN9  FISHER V. UNITED STATES, 231 F.2D 99, 106-107.  SEE ALSO, OCON
V. GUERCIO, 237 F.2D 177; BAGHDASARIAN V. UNITED STATES, 220 F.2D 677;
SIGURDSON V. LANDON, 215 F.2D 791; DICKHOFF V. SHAUGHNESSY, 142 F.
SUPP. 535. 

FN10  UNITED STATES EX REL. KETTUNEN V. REIMER, 79 F.2D 315, 317. 
SEE ALSO, BRIDGES V. WIXON, 326 U.S. 135; FISHER V. UNITED STATES, 231
F.2D 99, 107-108. 

MR. JUSTICE CLARK, DISSENTING. 

THE COURT HOLDS "THAT THE CRIMINAL ACTION MUST BE DISMISSED WHEN THE
GOVERNMENT, ON THE GROUND OF PRIVILEGE, ELECTS NOT TO COMPLY WITH AN
ORDER TO PRODUCE, FOR THE ACCUSED'S INSPECTION AND FOR ADMISSION IN
EVIDENCE, RELEVANT STATEMENTS OR REPORTS IN ITS POSSESSION OF
GOVERNMENT WITNESSES TOUCHING THE SUBJECT MATTER OF THEIR TESTIMONY AT
THE TRIAL."  THIS FASHIONS A NEW RULE OF EVIDENCE WHICH IS FOREIGN TO
OUR FEDERAL JURISPRUDENCE.  THE RULE HAS ALWAYS BEEN TO THE CONTRARY. 
IT SEEMS TO ME THAT PROPER JUDICIAL ADMINISTRATION WOULD REQUIRE THAT
THE COURT EXPRESSLY OVERRULE GOLDMAN V. UNITED STATES, 316 U.S. 129,
132 (1942), WHICH IS CONTRA TO THE RULE ANNOUNCED TODAY.  BUT THAT IS
NOT DONE.  THAT CASE IS LEFT ON THE BOOKS TO HAUNT LAWYERS AND TRIAL
COURTS IN THEIR SEARCH FOR THE PROPER RULE.  IN GOLDMAN THE COURT WAS
UNANIMOUS ON THE ISSUE OF DISCLOSURE OF DOCUMENTS (FN1) AND REFUSED TO
ORDER PRODUCED "NOTES AND MEMORANDA MADE BY THE FEDERAL AGENTS DURING
THE INVESTIGATION."   THE RULE ANNOUNCED TODAY HAS NO SUPPORT IN ANY OF
OUR CASES.  (FN2)  EVERY FEDERAL JUDGE AND EVERY LAWYER OF FEDERAL
EXPERIENCE KNOWS THAT IT IS NOT THE PRESENT RULE.  EVEN THE DEFENSE
ATTORNEYS DID NOT HAVE THE TEMERITY TO ASK FOR SUCH A SWEEPING
DECISION.  THEY ONLY ASKED THAT THE DOCUMENTS BE DELIVERED TO THE JUDGE
FOR HIS DETERMINATION OF WHETHER THE DEFENDANT SHOULD BE PERMITTED TO
EXAMINE THEM.  THIS IS THE PROCEDURE FOLLOWED IN SOME OF OUR CIRCUITS. 
MY BROTHER BURTON HAS CLEARLY STATED IN HIS CONCURRING OPINION THE
MANNER IN WHICH THIS PROCEDURE WORKS.  PERHAPS HERE WITH A RECANTING
WITNESS THE TRIAL JUDGE SHOULD HAVE EXAMINED THE SPECIFIC DOCUMENTS
CALLED FOR, AS THE DEFENSE REQUESTED, AND IF HE THOUGHT JUSTICE
REQUIRED THEIR DELIVERY TO THE DEFENSE, ORDER SUCH DELIVERY TO BE
MADE.  I WOULD HAVE NO OBJECTION TO THIS BEING DONE.  BUT AS BROTHER
BURTON POINTS OUT, THIS WOULD NOT REQUIRE A REVERSAL BUT MERELY A
VACATION OF THE JUDGMENT AND A REMAND TO THE TRIAL COURT FOR THAT
PURPOSE. 

UNLESS THE CONGRESS CHANGES THE RULE ANNOUNCED BY THE COURT TODAY,
THOSE INTELLIGENCE AGENCIES OF OUR GOVERNMENT ENGAGED IN LAW
ENFORCEMENT MAY AS WELL CLOSE UP SHOP, FOR THE COURT HAS OPENED THEIR
FILES TO THE CRIMINAL AND THUS AFFORDED HIM A ROMAN HOLIDAY FOR
RUMMAGING THROUGH CONFIDENTIAL INFORMATION AS WELL AS VITAL NATIONAL
SECRETS.  THIS MAY WELL BE A REASONABLE RULE IN STATE PROSECUTIONS
WHERE NONE OF THE PROBLEMS OF FOREIGN RELATIONS, ESPIONAGE, SABOTAGE,
SUBVERSIVE ACTIVITIES, COUNTERFEITING, INTERNAL SECURITY, NATIONAL
DEFENSE, AND THE LIKE EXIST, BUT ANY PERSON CONVERSANT WITH FEDERAL
GOVERNMENT ACTIVITIES AND PROBLEMS WILL QUICKLY RECOGNIZE THAT IT OPENS
UP A VERITABLE PANDORA'S BOX OF TROUBLES.  AND ALL IN THE NAME OF
JUSTICE.  FOR OVER EIGHT SCORE YEARS NOW OUR FEDERAL JUDICIAL
ADMINISTRATION HAS GOTTEN ALONG WITHOUT IT AND TODAY THAT
ADMINISTRATION ENJOYS THE HIGHEST RANK IN THE WORLD. 

DIRECTOR J. EDGAR HOOVER BACK IN 1950 TELLINGLY POINTED THIS OUT
BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON FOREIGN RELATIONS OF THE
UNITED STATES SENATE.  AMONG OTHER THINGS HE SAID, "I HAVE ALWAYS
MAINTAINED THE VIEW THAT IF WE WERE TO FULLY DISCHARGE THE SERIOUS
RESPONSIBILITIES IMPOSED UPON US, THE CONFIDENTIAL CHARACTER OF OUR
FILES MUST BE INVIOLATE  ...  .  UNLESS WE DRASTICALLY CHANGE OR
CIRCUMSCRIBE OUR PROCEDURES, THEY SHOULD NOT BE DISCLOSED."  IN
DESCRIBING THE FILES OF THE BUREAU, HE CONTINUED: 

"FBI REPORTS SET FORTH ALL DETAILS SECURED FROM A WITNESS.  IF THOSE
DETAILS WERE DISCLOSED, THEY COULD BECOME SUBJECT TO MISINTERPRETATION,
THEY COULD BE QUOTED OUT OF CONTEXT, OR THEY COULD BE USED TO THWART
TRUTH, DISTORT HALF-TRUTHS, AND MISREPRESENT FACTS.  THE RAW MATERIAL,
THE ALLEGATIONS, THE DETAILS OF ASSOCIATIONS, AND COMPILATION OF
INFORMATION  ...  ARE OF VALUE TO AN INVESTIGATOR IN THE DISCHARGE OF
HIS DUTY.  THESE FILES ARE NEVER INTENDED TO BE USED IN ANY OTHER
MANNER AND THE PUBLIC INTEREST WOULD NOT BE SERVED BY THE DISCLOSURE OF
THEIR CONTENTS." 

"THESE FILES CONTAIN COMPLAINTS, ALLEGATIONS, FACTS, AND STATEMENTS
OF ALL PERSONS INTERVIEWED.  DEPENDING UPON THE PURPOSE OF THE
INVESTIGATION, PARTICULARLY IN SECURITY CASES, THEY CONTAIN, NOT ONLY
BACKGROUND DATA ON THE INDIVIDUAL BUT DETAILS OF HIS PRIVATE LIFE  ...
THE IDENTITIES OF OUR CONFIDENTIAL SOURCES OF INFORMATION AND FULL
DETAILS OF INVESTIGATIVE TECHNIQUES.  IN SHORT, THEY CONSIST OF A
RUNNING ACCOUNT OF ALL THAT TRANSPIRES. 

*         *         *         *         * 

"  ...  FOR WANT OF A MORE APT COMPARISON, OUR FILES CAN BE COMPARED
TO THE NOTES OF A NEWSPAPER REPORTER BEFORE HE HAS CULLED THROUGH THE
PRINTABLE MATERIAL FROM THE UNPRINTABLE.  THE FILES DO NOT CONSIST OF
PROVEN INFORMATION ALONE  ...  .  ONE REPORT MAY ALLEGE CRIMES OF A
MOST DESPICABLE TYPE, AND THE TRUTH OR FALSITY OF THESE CHARGES MAY NOT
EMERGE UNTIL SEVERAL REPORTS ARE STUDIED, FURTHER INVESTIGATION MADE,
AND THE WHEAT SEPARATED FROM THE CHAFF." 

"IF SPREAD UPON THE RECORD, CRIMINALS, FOREIGN AGENTS, SUBVERSIVES,
AND OTHERS WOULD BE FOREWARNED AND WOULD SEEK METHODS TO CARRY OUT
THEIR ACTIVITIES BY AVOIDING DETECTION AND THUS DEFEAT THE VERY
PURPOSES FOR WHICH THE FBI WAS CREATED."  HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON FOREIGN RELATIONS ON S. RES.
231, 81ST CONG., 2D SESS. 327-329. 

I CAN ADD NOTHING TO THIS GRAPHIC EXPRESSION OF THE NECESSITY FOR THE
EXISTENCE OF THE RULE WHICH, UNTIL TODAY, KEPT INVIOLATE INVESTIGATIVE
REPORTS. 

MY BROTHER BURTON'S CONCURRENCE ALSO POINTS UP THE FAILURE OF THE
MAJORITY TO PASS UPON ANOTHER IMPORTANT QUESTION INVOLVED, NAMELY, THE
SUFFICIENCY OF THE TRIAL JUDGE'S INSTRUCTIONS.  THE IMPACT OF THIS
FAILURE ON HIM AND ON MY BROTHER FRANKFURTER WAS SUCH THAT THEY HAVE
ANNOUNCED THEIR OWN VIEWS THOUGH THE MAJORITY NEVER REACHES THE POINT. 
FOR MYSELF ALONE, I BELIEVE THAT THE INSTRUCTIONS ON THE WHOLE WERE
SUFFICIENT.  IT IS UNFORTUNATE THAT THE MAJORITY DOES NOT ANNOUNCE ITS
POSITION.  THIS IS ONLY ONE OF SOME 10 COMMUNIST AFFIDAVIT CASES NOW
PENDING IN THE TRIAL AND APPELLATE COURTS.  UNLESS THIS CASE GOES AS
DID GOLD'S, (FN3) THE QUESTION OF THE SUFFICIENCY OF INSTRUCTIONS WILL
COME UP IN THIS AS WELL AS IN EACH OF THE OTHER CASES.  THE COURT IS
SORELY DIVIDED ON THIS IMPORTANT ISSUE AND PROPER JUDICIAL
ADMINISTRATION REQUIRES THAT CHARGES AS TO WHAT CONSTITUTES MEMBERSHIP
AND AFFILIATION IN THE COMMUNIST PARTY BE ANNOUNCED. 

FN1  THOUGH THE COURT WAS DIVIDED ON AN ISSUE NOT HERE MATERIAL, THE
TWO DISSENTING OPINIONS EXPRESSED NO DISAGREEMENT WHATSOEVER ON THE
DISCLOSURE ISSUE. 

FN2  THE OPINION CITES ONLY TWO OF OUR CASES FOR SUPPORT.  THE
QUOTATIONS FROM GORDON V. UNITED STATES, 344 U.S. 414 (1953), AN
OPINION BY MY LATE BROTHER JACKSON, A FORMER SOLICITOR GENERAL AND
ATTORNEY GENERAL, ARE LIFTED ENTIRELY OUT OF CONTEXT.  THE CASE HOLDS
EXPLICITLY THAT DOCUMENTS MUST BE PRODUCED ONLY AFTER A FOUNDATION IS
LAID "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
CONTRADICITON 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."  ID., AT 418-419.  LIKEWISE, UNITED STATES V.
REYNOLDS, 345 U.S. 1 (1953), BY MY LATE BROTHER CHIEF JUSTICE VINSON,
APPROVED THE REFUSAL OF THE GOVERNMENT TO PRODUCE DOCUMENTS IN A TORT
CLAIMS SUIT.  THE OPINION GAVE NO APPROVAL WHATEVER TO THE CONCLUSION
ANNOUNCED BY THE MAJORITY HERE.  I PURPOSELY OMITTED THE REFERENCE IN
THE OPINION AFTER THE PENULTIMATE SENTENCE, "ACCORD, ROVIARO V. UNITED
STATES, 353 U.S. 53, 60-61."  THAT CASE HAD TO DO WITH THE DISCLOSURE
OF A DEAD INFORMANT'S NAME AND DID NOT TOUCH ON THE PROBLEM OF THE
DISCLOSURE OF GOVERNMENT DOCUMENTS. 

FN3  IN GOLD V. UNITED STATES, 352 U.S. 985 (1957), THIS COURT
REVERSED AND REMANDED THE CASE FOR A NEW TRIAL BECAUSE OF OFFICIAL
INTRUSION INTO THE PRIVACY OF THE JURY.  THE CASE WAS DISMISSED ON ORAL
MOTION OF THE GOVERNMENT ON MAY 9, 1957. 
..END :






LEHMANN V. UNITED STATES, CARSON OR CARASANITI 353 U.S. 685 


NO. 72.  ARGUED MARCH 26-27, 1957 - DECIDED JUNE 3, 1957 - 228 F.2D 142,
REVERSED. 


AN ALIEN ENTERED THE UNITED STATES IN 1919 AS A STOWAWAY, AND NO
ACTION WAS TAKEN TO DEPORT HIM "WITHIN FIVE YEARS AFTER ENTRY," AS THEN
LIMITED BY SEC. 19 OF THE IMMIGRATION ACT OF 1917.  IN 1936, HE WAS
CONVICTED IN OHIO OF TWO SEPARATE CRIMES OF BLACKMAIL AND WAS GIVEN TWO
SEPARATE SENTENCES, THE SECOND TO BEGIN AT THE EXPIRATION OF THE
FIRST.  IN 1945, HE WAS GRANTED A CONDITIONAL PARDON BY THE GOVERNOR OF
OHIO FOR THE SECOND CONVICTION.  AFTER ENACTMENT OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, HE WAS ORDERED DEPORTED THEREUNDER ON TWO
GROUNDS: (1) AS AN ALIEN WHO, AT THE TIME OF ENTRY, WAS EXCLUDABLE BY
THE THEN EXISTING LAW, AND (2) AS AN ALIEN WHO HAD BEEN CONVICTED OF
TWO CRIMES INVOLVING MORAL TURPITUDE, FOR NEITHER OF WHICH HAD HE BEEN
GRANTED "A FULL AND UNCONDITIONAL PARDON."  IN A HABEAS CORPUS
PROCEEDING, HE CHALLENGED THE VALIDITY OF HIS DEPORTATION.  HELD:  THE
VALIDITY OF HIS DEPORTATION UNDER THE 1952 ACT IS SUSTAINED.  PP. 686
690. 

(A)  THE SAVING CLAUSE IN SEC. 405(A) OF THE 1952 ACT IS INAPPLICABLE
WHERE "OTHERWISE SPECIFICALLY PROVIDED," AND SEC. 241 CONTAINS
PROVISIONS WHICH SPECIFICALLY PROVIDE OTHERWISE WITH RESPECT TO THE
CIRCUMSTANCES INVOLVED IN THIS CASE.  PP. 688-690. 

(B)  SECTION 241(A)(1) SPECIFICALLY PROVIDES FOR THE DEPORTATION OF
AN ALIEN WHO "AT THE TIME OF ENTRY WAS  ...  EXCLUDABLE BY THE LAWS
EXISTING AT THAT TIME," AND SEC. 241(A)(4) SPECIFICALLY PROVIDES FOR
THE DEPORTATION OF AN ALIEN WHO "AT ANY TIME AFTER ENTRY" HAS BEEN
CONVICTED OF TWO CRIMES INVOLVING MORAL TURPITUDE.  P. 689. 

(C) SECTION 241(D) MAKES SECS. 241(A)(1) AND 241(A)(4) APPLICABLE
RETROACTIVELY TO COVER OFFENSES OF THE KINDS HERE INVOLVED.  PP. 689
690. 

LEHMANN, OFFICER IN CHARGE, IMMIGRATION AND NATURALIZATION SERVICE, V.
UNITED STATES EX REL.  CARSON OR CARASANITI. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, A NATIVE AND CITIZEN OF ITALY, ENTERED THE UNITED STATES
IN 1919 AS A STOWAWAY.  NO ACTION WAS TAKEN TO DEPORT HIM "WITHIN FIVE
YEARS AFTER ENTRY" AS THEN LIMITED BY SEC. 19 OF THE IMMIGRATION ACT OF
FEBRUARY 5, 1917, 39 STAT. 889. 

ON JANUARY 15, 1936, RESPONDENT WAS CONVICTED IN OHIO OF THE CRIME OF
BLACKMAIL, AND HE WAS SENTENCED TO IMPRISONMENT.  ON APRIL 25, 1936, HE
WAS AGAIN CONVICTED IN OHIO OF ANOTHER CRIME OF BLACKMAIL AND SENTENCED
TO IMPRISONMENT.  THE SECOND SENTENCE WAS TO BEGIN AT THE EXPIRATION OF
THE FIRST.  HE WAS RELEASED FROM PRISON ON FEBRUARY 1, 1941.  A
PROCEEDING TO DEPORT HIM, UNDER THE PROVISIONS OF SEC. 19 OF THE ACT OF
FEBRUARY 5, 1917, BASED UPON HIS CONVICTIONS OF THESE TWO INDEPENDENT
CRIMES, WAS COMMENCED, BUT BEFORE FINAL DETERMINATION OF THAT
PROCEEDING, THE GOVERNOR OF OHIO, ON JULY 30, 1945, GRANTED PETITIONER
A CONDITIONAL PARDON (FN1) FOR THE SECOND CONVICTION.  BECAUSE OF THAT
CONDITIONAL PARDON AND OF THE PROVISION IN SEC. 19 OF THE 1917 ACT THAT
"THE DEPORTATION OF ALIENS CONVICTED OF A CRIME INVOLVING MORAL
TURPITUDE SHALL NOT APPLY TO ONE WHO HAS BEEN PARDONED," THAT
DEPORTATION PROCEEDING WAS WITHDRAWN ON OCTOBER 9, 1945. 

IN 1952 CONGRESS ENACTED THE IMMIGRATION AND NATIONALITY ACT OF 1952,
66 STAT. 163, 8 U.S.C.  SEC. 1101 ET SEQ., BY WHICH IT REPEALED (FN2)
THE IMMIGRATION ACT OF FEBRUARY 5, 1917, AND, IN MANY RESPECTS,
SUBSTANTIALLY CHANGED THE LAW.  THE PRESENT PROCEEDING WAS BROUGHT
UNDER THE 1952 ACT TO DEPORT RESPONDENT UPON TWO GROUNDS:  FIRST, UNDER
SEC. 241(A)(1), AS AN ALIEN WHO, AT THE TIME OF ENTRY, WAS EXCLUDABLE
BY THE LAW EXISTING AT THE TIME OF ENTRY (I.E., A STOWAWAY UNDER SEC. 3
OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, 39 STAT. 875), AND, SECOND,
UNDER SEC. 241(A)(4), AS AN ALIEN WHO HAD BEEN CONVICTED OF TWO CRIMES
INVOLVING MORAL TURPITUDE FOR NEITHER OF WHICH HAD HE BEEN GRANTED "A
FULL AND UNCONDITIONAL PARDON."  AFTER A HEARING, RESPONDENT WAS
ORDERED DEPORTED BY A SPECIAL INQUIRY OFFICER.  THAT ORDER WAS AFFIRMED
BY THE BOARD OF IMMIGRATION APPEALS. 

RESPONDENT THEN FILED A PETITION FOR A WRIT OF HABEAS CORPUS IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, CONTENDING THAT,
BECAUSE OF THE FIVE-YEAR LIMITATION CONTAINED IN THE FORMER ACT (SEC.
19 OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917), HE COULD NOT LAWFULLY
BE DEPORTED AS A STOWAWAY AFTER THE LAPSE OF FIVE YEARS FROM THE DATE
HE ENTERED THIS COUNTRY, AND THAT HE COULD NOT LAWFULLY BE DEPORTED FOR
HAVING BEEN CONVICTED OF THE TWO CRIMES OF BLACKMAIL, BECAUSE HE HAD
BEEN CONDITIONALLY PARDONED FOR ONE OF THEM.  THE DISTRICT COURT DENIED
THE PETITION.  THE COURT OF APPEALS REVERSED, 228 F.2D 142, HOLDING
THAT RESPONDENT HAD ACQUIRED A "STATUS OF NONDEPORTABILITY," UNDER THE
PRIOR LAW, WHICH WAS PROTECTED TO HIM BY THE SAVINGS CLAUSE IN SEC.
405(A) OF THE 1952 ACT, 66 STAT. 280, 8 U.S.C. SEC. 1101, NOTE, "UNLESS
OTHERWISE SPECIFICALLY PROVIDED" IN THAT ACT, WHICH IT HELD HAD NOT
BEEN DONE.  WE GRANTED CERTIORARI.  352 U.S. 915. 

RELIED, PROVIDES IN PERTINENT PART AS FOLLOWS: 

"(A)  NOTHING CONTAINED IN THIS ACT, UNLESS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, SHALL BE CONSTRUED  ...  TO AFFECT ANY PROSECUTION,
SUIT, ACTION, OR PROCEEDINGS, CIVIL OR CRIMINAL, BROUGHT, OR ANY
STATUS, CONDITION, RIGHT IN PROCESS OF ACQUISITION, ACT, THING,
LIABILITY, OBLIGATION, OR MATTER, CIVIL OR CRIMINAL, DONE OR EXISTING,
AT THE TIME OF THIS ACT SHALL TAKE EFFECT; BUT AS TO ALL SUCH
PROSECUTIONS, SUITS, ACTIONS, PROCEEDINGS, STATUTES, (FN3) CONDITIONS,
RIGHTS, ACTS, THINGS, LIABILITIES, OBLIGATIONS, OR MATTERS THE STATUTES
OR PARTS OF STATUTES REPEALED BY THIS ACT ARE, UNLESS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, HEREBY CONTINUED IN FORCE AND EFFECT
...  ." 

BY ITS EXPRESS TERMS, SEC. 405(A) DOES NOT APPLY IF IT IS "OTHERWISE
SPECIFICALLY PROVIDED" IN THE ACT.  AS RESPECTS THE GROUNDS OF
DEPORTATION INVOLVED HERE, WE THINK THE ACT DOES OTHERWISE SPECIFICALLY
PROVIDE IN SEC. 241, 66 STAT. 204, 8 U.S.C. SEC. 1251.  THAT SECTION,
SO FAR AS HERE PERTINENT, PROVIDES: 

"(A)  ANY ALIEN IN THE UNITED STATES (INCLUDING AN ALIEN CREWMAN)
SHALL, UPON THE ORDER OF THE ATTORNEY GENERAL, BE DEPORTED WHO: 

"(1)  AT THE TIME OF ENTRY WAS WITHIN ONE OR MORE OF THE CLASSES OF
ALIENS EXCLUDABLE BY THE LAW EXISTING AT THE TIME OF SUCH ENTRY. 

     *         *         *         *      * 

"(4)  ...  AT ANY TIME AFTER ENTRY IS CONVICTED OF TWO CRIMES
INVOLVING MORAL TURPITUDE, NOT ARISING OUT OF A SINGLE SCHEME OF
CRIMINAL MISCONDUCT, REGARDLESS OF WHETHER CONFINED THEREFOR AND
REGARDLESS OF WHETHER THE CONVICTIONS WERE IN A SINGLE TRIAL. 

     *         *         *         *  * 

"(B)  THE PROVISIONS OF SUBSECTION (A)(4) RESPECTING THE DEPORTATION
OF AN ALIEN CONVICTED OF A CRIME OR CRIMES SHALL NOT APPLY (1) IN THE
CASE OF ANY ALIEN WHO HAS SUBSEQUENT TO SUCH CONVICTION BEEN GRANTED A
FULL AND UNCONDITIONAL PARDON BY THE PRESIDENT OF THE UNITED STATES OR
BY THE GOVERNOR OF ANY OF THE SEVERAL STATES  ...  . 

     *         *         *     *         * 

"(D)  EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION, THE
PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO ALL ALIENS BELONGING
TO ANY OF THE CLASSES ENUMERATED IN SUBSECTION (A), NOTWITHSTANDING (1)
THAT ANY SUCH ALIEN ENTERED THE UNITED STATES PRIOR TO THE DATE OF
ENACTMENT OF THIS ACT, OR (2) THAT THE FACTS, BY REASON OF WHICH ANY
SUCH ALIEN BELONGS TO ANY OF THE CLASSES ENUMERATED IN SUBSECTION (A),
OCCURRED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT." 

THUS, EVEN IF WE ASSUME THAT RESPONDENT HAS A "STATUS" WITHIN THE
MEANING OF SEC. 405(A), THAT SECTION BY ITS OWN TERMS DOES NOT APPLY TO
SITUATIONS "OTHERWISE SPECIFICALLY PROVIDED" FOR IN THE ACT.  SECTION
241(A)(1) SPECIFICALLY PROVIDES FOR THE DEPORTATION OF AN ALIEN WHO "AT
THE TIME OF ENTRY WAS  ...  EXCLUDABLE BY THE LAW EXISTING AT THAT
TIME," AND SEC. 241(A)(4) SPECIFICALLY PROVIDES FOR THE DEPORTATION OF
AN ALIEN WHO "AT ANY TIME AFTER ENTRY" HAS BEEN CONVICTED OF TWO CRIMES
INVOLVING MORAL TURPITUDE.  AND SEC. 241(D) MAKES SECS. 241(A)(1) AND
241(A)(4) APPLICABLE TO ALL ALIENS COVERED THEREBY, "NOTWITHSTANDING
(1) THAT ANY SUCH ALIEN ENTERED THE UNITED STATES PRIOR TO THE DATE OF
ENACTMENT OF THIS ACT, OR (2) THAT THE FACTS, BY REASON OF WHICH ANY
SUCH ALIEN BELONGS TO ANY OF THE CLASSES ENUMERATED IN SUBSECTION (A),
OCCURRED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT."  IT SEEMS TO US
INDISPUTABLE, THEREFORE, THAT CONGRESS WAS LEGISLATING RETROSPECTIVELY,
AS IT MAY DO, (FN4) TO COVER OFFENSES OF THE KIND HERE INVOLVED.  THIS
CASE IS, THEREFORE, "OTHERWISE SPECIFICALLY PROVIDED" FOR WITHIN THE
MEANING OF SEC. 405(A).  THE COURT OF APPEALS WAS IN ERROR IN HOLDING
TO THE CONTRARY, AND ITS JUDGMENT IS REVERSED. 

FN1  THE PARDON WAS "CONDITIONED UPON GOOD BEHAVIOR AND CONDUCT AND
PROVIDED THAT HE DEMEANS HIMSELF AS A LAW ABIDING PERSON AND IS NOT
CONVICTED OF ANY OTHER CRIME, OTHERWISE THIS PARDON TO BECOME NULL AND
VOID." 

FN2  SEC. 403(A)(13), 66 STAT. 279. 

FN3  IT APPEARS TO BE OBVIOUS THAT THIS WAS A TYPOGRAPHICAL ERROR AND
THAT THE WORD SHOULD BE READ AS "STATUSES." 

FN4  BUGAJEWITZ V. ADAMS, 228 U.S. 585; NG FUNG HO V. WHITE, 259 U.S.
276; MAHLER V. EBY, 264 U.S. 32; UNITED STATES EX REL. EICHENLAUB V.
SHAUGHNESSY, 338 U.S. 521; HARISIADES V. SHAUGHNESSY, 342 U.S. 580;
GALVAN V. PRESS, 347 U.S. 522; MARCELLO V. BONDS, 349 U.S. 302. 

OPINION OF MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS
CONCURS.* 

*NOTE:  THIS OPINION APPLIES ALSO TO NO. 435, MULCAHEY, DISTRICT
DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, V. CATALANOTTE, POST,
P. 692. 

I AGREE WITH THE COURT THAT SEC. 241 OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 8 U.S.C. SEC. 1251, MAKES ALIENS DEPORTABLE
FOR PAST OFFENSES WHICH WHEN COMMITTED WERE NOT GROUNDS FOR
DEPORTATION.  THE COURT GOES ON TO HOLD, HOWEVER, THAT SUCH
RETROSPECTIVE LEGISLATION IS A VALID EXERCISE OF CONGRESSIONAL POWER,
DESPITE ART. I, SEC. 9, OF THE CONSTITUTION PROVIDING THAT "NO BILL OF
ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED."  PAST DECISIONS CITED
BY THE COURT SUPPORT THIS HOLDING ON THE PREMISE THAT THE EX POST FACTO
CLAUSE ONLY FORBIDS "PENAL LEGISLATION WHICH IMPOSES OR INCREASES
CRIMINAL PUNISHMENT FOR CONDUCT LAWFUL PREVIOUS TO ITS ENACTMENT." 
HARISIADES V. SHAUGHNESSY, 342 U.S. 580, 594.  I THINK THIS DEFINITION
CONFINES THE CLAUSE TOO NARROWLY.  AS MR. JUSTICE DOUGLAS POINTED OUT
IN HIS DISSENTING OPINION IN MARCELLO V. BONDS, 349 U.S. 302, 319,
ANOTHER LINE OF DECISIONS BY THIS COURT HAS REFUSED TO LIMIT THE
PROTECTIONS OF THE CLAUSE TO CRIMINAL CASES AND CRIMINAL PUNISHMENTS AS
THOSE TERMS WERE DEFINED IN EARLIER TIMES.  FLETCHER V. PECK, 6 CRANCH
87, 138, 139; CUMMINGS V. MISSOURI, 4 WALL.  277; EX PARTE GARLAND, 4
WALL.  333.  AND SEE UNITED STATES V. LOVETT, 328 U.S. 303, 315, 316. 

WHAT IS BEING DONE TO THESE RESPONDENTS SEEMS TO ME TO BE THE PRECISE
EVIL THE EX POST FACTO CLAUSE WAS DESIGNED TO PREVENT.  BOTH
RESPONDENTS ARE ORDERED DEPORTED FOR OFFENSES THEY COMMITTED LONG AGO -
ONE IN 1925 AND THE OTHER IN 1936.  LONG BEFORE THE 1952 ACT REACHED
BACK TO ADD DEPORTATION AS ONE OF THE LEGAL CONSEQUENCES OF THEIR
OFFENSES BOTH PAID THE PRICE SOCIETY THEN EXACTED FOR THEIR
MISCONDUCT.  THEY HAVE LIVED IN THE UNITED STATES FOR ALMOST 40 YEARS. 
TO BANISH THEM FROM HOME, FAMILY, AND ADOPTED COUNTRY IS PUNISHMENT OF
THE MOST DRASTIC KIND WHETHER DONE AT THE TIME WHEN THEY WERE CONVICTED
OR LATER.  I THINK THAT THIS COURT SHOULD RECONSIDER THE APPLICATION OF
THE EX POST FACTO CLAUSE WITH A VIEW TO APPLYING IT IN A WAY THAT MORE
EFFECTIVELY PROTECTS INDIVIDUALS FROM NEW OR ADDITIONAL BURDENS,
PENALTIES, OR PUNISHMENTS RETROSPECTIVELY IMPOSED BY CONGRESS. 
..END :









MULCAHEY V. CATALANOTTE 353 U.S. 692 


NO. 435.  ARGUED MARCH 27, 1957 - DECIDED JUNE 3, 1957 - 236 F.2D 955,
REVERSED. 


AN ALIEN WHO ENTERED THE UNITED STATES IN 1920 FOR PERMANENT RESIDENCE
WAS CONVICTED IN 1925 OF A FEDERAL OFFENSE RELATING TO ILLICIT TRAFFIC
IN NARCOTICS.  AT THAT TIME, THERE WAS NO STATUTE MAKING THAT OFFENSE A
GROUND FOR DEPORTATION.  AFTER ENACTMENT OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, HE WAS ORDERED DEPORTED UNDER SECS. 241(A)(11)
AND (D) THEREOF, WHICH PROVIDE FOR THE DEPORTATION OF ANY ALIEN WHO "AT
ANY TIME" HAS BEEN CONVICTED OF VIOLATING ANY LAW RELATING TO ILLICIT
TRAFFIC IN NARCOTICS.  HE CHALLENGED THE VALIDITY OF THIS ORDER IN A
HABEAS CORPUS PROCEEDING.  HELD:  THE ORDER OF DEPORTATION IS
SUSTAINED.  LEHMANN V. UNITED STATES EX REL. CARSON, ANTE, P. 685.  PP.
692-694. 

MULCAHEY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, V.
CATALANOTTE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO LEHMANN V. UNITED STATES EX REL. CARSON,
ANTE, P. 685, AND PRESENTS SIMILAR QUESTIONS.  RESPONDENT, AN ALIEN WHO
ENTERED THE UNITED STATES IN 1920 FOR PERMANENT RESIDENCE, WAS
CONVICTED IN 1925 OF A FEDERAL OFFENSE RELATING TO ILLICIT TRAFFIC IN
NARCOTIC DRUGS.   (FN1)  AT THAT TIME THERE WAS NO STATUTE MAKING THAT
OFFENSE A GROUND FOR DEPORTATION.  HE WAS TAKEN INTO CUSTODY IN MAY,
1953, AND, AFTER ADMINISTRATIVE PROCEEDINGS, WAS ORDERED DEPORTED UNDER
SEC. 241(A)(11) AND (D) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952,
(FN2) WHICH PROVIDES, INTER ALIA, FOR THE DEPORTATION OF ANY ALIEN "
...  WHO AT ANY TIME HAS BEEN CONVICTED OF A VIOLATION OF ANY LAW OR
REGULATION RELATING TO THE ILLICIT TRAFFIC IN NARCOTIC DRUGS  ...  ." 
(FN3) 

RESPONDENT PETITIONED THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
MICHIGAN FOR A WRIT OF HABEAS CORPUS.  THE DISTRICT COURT, AFTER
HEARING, DENIED THE PETITION.  THE COURT OF APPEALS REVERSED, 236 F.2D
955, HOLDING - PRINCIPALLY ON THE BASIS OF ITS EARLIER DECISION IN
UNITED STATES V. KERSHNER, 228 F.2D 142, THIS DAY REVERSED BY US, SUB
NOM. LEHMANN V. UNITED STATES EX REL. CARSON, ANTE, P. 685 - THAT
INASMUCH AS RESPONDENT'S CONVICTION IN 1925 OF ILLICIT TRAFFIC IN
NARCOTIC DRUGS WAS NOT A GROUND FOR DEPORTATION PRIOR TO THE
IMMIGRATION AND NATIONALITY ACT OF 1952, RESPONDENT HAD A "STATUS" OF
NONDEPORTABILITY WHICH WAS PRESERVED TO HIM BY THE SAVINGS CLAUSE IN
SEC. 405(A) OF THAT ACT.  (FN4)  WE GRANTED CERTIORARI, 352 U.S. 915. 

AS WE HAVE SAID IN LEHMANN V. UNITED STATES EX REL. CARSON, ANTE, P.
685, SEC. 405(A) BY ITS OWN TERMS DOES NOT APPLY TO SITUATIONS
"OTHERWISE SPECIFICALLY PROVIDED" FOR IN THE ACT.  SECTION 241(A)(11)
AND SEC. 241(D) SPECIFICALLY PROVIDE FOR THE DEPORTATION OF AN ALIEN
NOTWITHSTANDING THAT THE OFFENSE FOR WHICH HE IS BEING DEPORTED
OCCURRED PRIOR TO THE 1952 ACT.  SECTION 241(A)(11) MAKE AN ALIEN
DEPORTABLE IF HE HAS "AT ANY TIME" BEEN CONVICTED OF ILLICIT TRAFFIC IN
NARCOTIC DRUGS.  AND SEC. 241(D) MAKES SEC. 241(A)(11) APPLICABLE TO
ALL ALIENS COVERED THEREBY "NOTWITHSTANDING  ...  THAT THE FACTS  ...
OCCURRED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT."  IT SEEMS TO US
INDISPUTABLE, THEREFORE, THAT CONGRESS WAS LEGISLATING RETROSPECTIVELY,
AS IT MAY DO, (FN5) TO COVER OFFENSES OF THE KIND HERE INVOLVED.  THE
CASE IS, THEREFORE, "OTHERWISE SPECIFICALLY PROVIDED" FOR WITHIN THE
MEANING OF SEC. 405(A).  THE COURT OF APPEALS WAS IN ERROR IN HOLDING
TO THE CONTRARY, AND ITS JUDGMENT IS REVERSED. 

FN1  THE SALE OF A QUANTITY OF COCAINE HYDROCHLORIDE AND POSSESSION
AND PURCHASE OF 385 GRAINS THEREOF. 

FN2  66 STAT. 204, 8 U.S.C. SEC. 1251. 

FN3  SECTION 241(A)(11) AND (D) OF THE IMMIGRATION AND NATIONALITY
ACT OF 1952 PROVIDES, IN PERTINENT PART, AS FOLLOWS: 

"(A)  ANY ALIEN IN THE UNITED STATES (INCLUDING AN ALIEN CREWMAN)
SHALL, UPON THE ORDER OF THE ATTORNEY GENERAL, BE DEPORTED WHO: 

     *         *         *  *         * 

"(11)  IS, OR HEREAFTER AT ANY TIME AFTER ENTRY HAS BEEN, A NARCOTIC
DRUG ADDICT, OR WHO AT ANY TIME HAS BEEN CONVICTED OF A VIOLATION OF
ANY LAW OR REGULATION RELATING TO THE ILLICIT TRAFFIC IN NARCOTIC DRUGS
...  . 

     *     *         *         *         * 

"(D)  EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION, THE
PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO ALL ALIENS BELONGING
TO ANY OF THE CLASSES ENUMERATED IN SUBSECTION (A), NOTWITHSTANDING
...  (2) THAT THE FACTS, BY REASON OF WHICH ANY SUCH ALIEN BELONGS TO
ANY OF THE CLASSES ENUMERATED IN SUBSECTION (A), OCCURRED PRIOR TO THE
DATE OF ENACTMENT OF THIS ACT." 

FN4  66 STAT. 280, 8 U.S.C. SEC. 1101, NOTE.  SECTION 405, SO FAR AS
HERE MATERIAL, PROVIDES "NOTHING CONTAINED IN THIS ACT, UNLESS
OTHERWISE SPECIFICALLY PROVIDED THEREIN, SHALL BE CONSTRUED TO AFFECT
...  ANY STATUS  ...  EXISTING, AT THE TIME THIS ACT SHALL TAKE EFFECT
...  ." 

FN5  BUGAJEWITZ V. ADAMS, 228 U.S. 585; NG FUNG HO V. WHITE, 259 U.S.
276; MAHLER V. EBY, 264 U.S. 32; UNITED STATES EX REL. EICHENLAUB V.
SHAUGHNESSY, 338 U.S. 521; HARISIADES V. SHAUGHNESSY, 342 U.S. 580;
GALVAN V. PRESS, 347 U.S. 522; MARCELLO V. BONDS, 349 U.S. 302. 
..END :














ACHILLI V. UNITED STATES 353 U.S. 373 


NOS. 430 AND 834.  ARGUED MAY 2, 1957 - DECIDED MAY 27, 1957 - 234 F.2D
797, AFFIRMED. 


PETITIONER WAS INDICTED, CONVICTED AND SENTENCED UNDER SEC. 145(B) OF
THE INTERNAL REVENUE CODE OF 1939 FOR THE FELONY OF WILLFULLY
ATTEMPTING TO EVADE FEDERAL INCOME TAXES BY FILING FALSE AND FRAUDULENT
RETURNS.  HELD:  SECTION 3616(A) OF THE INTERNAL REVENUE CODE OF 1939,
WHICH MAKES IT A MISDEMEANOR FOR A PERSON TO DELIVER TO THE COLLECTOR
"ANY FALSE OR FRAUDULENT LIST, RETURN, ACCOUNT, OR STATEMENT, WITH
INTENT TO DEFEAT OR EVADE THE VALUATION, ENUMERATION, OR ASSESSMENT
INTENDED TO BE MADE  ...  "  DOES NOT APPLY TO THIS OFFENSE; AND THE
FELONY CONVICTION AND SENTENCE UNDER SEC. 145(B) ARE SUSTAINED.  PP.
373-379. 

ACHILLI V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CHARGED IN A THREE-COUNT INDICTMENT UNDER SEC. 145(B)
OF THE INTERNAL REVENUE CODE OF 1939 WITH THE FELONY OF WILFULLY
ATTEMPTING TO EVADE FEDERAL INCOME TAXES BY FILING A FALSE RETURN. 
(FN1)  UPON CONVICTION, HE WAS SENTENCED TO CONCURRENT TWO-YEAR PRISON
TERMS AND WAS FINED $2,000 ON EACH COUNT.  THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT REVERSED THE CONVICTION ON COUNT ONE, BUT AFFIRMED THE
CONVICTIONS ON COUNTS TWO AND THREE.  234 F.2D 797.  WE GRANTED
CERTIORARI LIMITED TO A QUESTION OF GENERAL IMPORTANCE IN THE
ENFORCEMENT OF THE INCOME TAX, NAMELY, WHETHER PETITIONER COULD BE
PROSECUTED AND SENTENCED UNDER SEC. 145(B) FOR AN OFFENSE CLAIMED BY
HIM TO BE PUNISHABLE ALSO UNDER SEC. 3616(A) OF THE INTERNAL REVENUE
CODE OF 1939.  352 U.S. 1023.  (FN2) 

THE THRESHOLD QUESTION IS WHETHER THE CONDUCT FOR WHICH PETITIONER
WAS CONVICTED WAS AN OFFENSE UNDER SEC. 3616(A).  THAT SECTION MADE IT
A MISDEMEANOR FOR ANY PERSON TO DELIVER TO THE COLLECTOR "ANY FALSE OR
FRAUDULENT LIST, RETURN, ACCOUNT, OR STATEMENT, WITH INTENT TO DEFEAT
OR EVADE THE VALUATION, ENUMERATION, OR ASSESSMENT INTENDED TO BE MADE
...  " AND PROVIDED MAXIMUM PENALTIES OF ONE YEAR IN PRISON AND A
$1,000 FINE, TOGETHER WITH THE COSTS OF PROSECUTION.  53 STAT. 440.  IF
THE WILFUL FILING OF A FALSE INCOME TAX RETURN WAS NOT EMBRACED BY SEC.
3616(A), PETITIONER'S CASE FALLS, AND DISCUSSION OF OTHER ISSUES
BECOMES UNNECESSARY. 

UNLIKE SEC. 145(B), WHICH APPEARED IN THE INCOME TAX CHAPTER OF THE
1939 CODE AND WAS SPECIFICALLY AND RESTRICTIVELY DESIGNED TO PUNISH
EVASION OF THAT TAX, SEC. 3616(A) WAS PLACED AMONG THE CODE'S "GENERAL
ADMINISTRATIVE PROVISIONS" AND WAS GENERAL IN SCOPE.  FAILURE
EXPLICITLY TO EXCLUDE EVASION OF THE INCOME TAX FROM THE SCOPE OF SEC.
3616(A) IS URGED AS GROUND FOR ITS INCLUSION, THEREBY MAKING IT A
MISDEMEANOR TO FILE A FALSE RETURN WITH INTENT TO EVADE THE INCOME TAX,
DESPITE THE SPECIFIC FELONY PROVISION OF SEC. 145(B). 

AS LONG AGO AS 1926 IT WAS THE GOVERNMENT'S POSITION THAT THE
PREDECESSOR OF SEC.  145(B) EFFECTIVELY REPEALED SEC. 3616(A)'S
APPLICABILITY TO INCOME TAX EVASION.  SEE BRIEF FOR THE UNITED STATES
IN UNITED STATES V. NOVECK, 273 U.S. 202, PP. 16-19.  TO BE SURE,
DURING THE LAST FIVE YEARS, THE GOVERNMENT PROSECUTED A SMALL NUMBER OF
MINOR OFFENSES, WE ARE TOLD LESS THAN SEVEN PER CENT OF THE CRIMINAL
INCOME TAX EVASION CASES INVOLVING THE FILING OF FALSE RETURNS, AS
MISDEMEANORS UNDER SEC. 3616(A).  MORE RECENTLY, A SERIES OF CASES
BROUGHT THE RELATION OF SEC. 145(B) TO SEC. 3616(A) INTO FOCUS AND
CALLED FOR AN INTERPRETATIVE ANALYSIS OF THE HISTORY OF THESE SECTIONS
IN ORDER TO ASCERTAIN THEIR RESPECTIVE FUNCTIONS.  AND SO NOW, FOR THE
FIRST TIME, HAS THE GOVERNMENT MADE A DETAILED SURVEY OF THE PROBLEM OF
ALLEGED OVERLAPPING BETWEEN SEC. 3616(A) AND SEC. 145(B). 

EXCISE TAXES AND CUSTOMS DUTIES WERE THE MAIN SOURCES OF FEDERAL
REVENUE.  BEING GENERAL IN SCOPE, THIS SECTION, AS SUCCESSIVELY RE
ENACTED, WAS APPLICABLE TO THE FIRST FEDERAL TAXES ON INCOME, FROM 1861
TO 1871, AND AGAIN IN 1894; THERE WERE NO SEPARATE PROVISIONS FOR
PUNISHING INCOME TAX EVASIONS.  SEE, E.G., THE ACT OF 1861, 12 STAT.
292, 309; THE ACT OF 1894, 28 STAT. 509, 553. 

A DIFFERENT STORY BEGINS WITH THE INCOME TAX LEGISLATION THAT
FOLLOWED THE PASSAGE OF THE SIXTEENTH AMENDMENT.  SECTION II OF THE
REVENUE ACT OF 1913, 38 STAT. 114, 166, CONTAINED ITS OWN CRIMINAL
SANCTION.  SECTION IIF) PROSCRIBED THE MAKING OF A FALSE RETURN WITH
INTENT TO EVADE THE INCOME TAX, AN ACT THAT WOULD OTHERWISE HAVE BEEN
PUNISHABLE UNDER WHAT WAS THEN SEC. 3179 OF THE REVISED STATUTES OF
1874, THE IMMEDIATE PREDECESSOR OF SEC.  3616(A).  THE OFFENSE WOULD
HAVE BEEN A MISDEMEANOR UNDER EITHER STATUTE.  BUT SEC. IIF) PROVIDED A
MAXIMUM FINE OF $2,000 WHILE SEC. 3179 ONLY PERMITTED A FINE OF UP TO
$1,000.  IT SEEMS CLEAR THAT SEC. IIF) DISPLACED SEC. 3179.  SUCH
IMPLIED REPEAL, PRO TANTO, IS FURTHER DEMONSTRATED BY THE FACT THAT
SECS. 3167, 3172, 3173 AND 3176 OF THE REVISED STATUTES, RELATED
PROVISIONS IN THE ENFORCEMENT OF THE REVENUE LAWS, WERE SPECIFICALLY
INCORPORATED, AS MODIFIED, INTO SEC. II, BUT SEC. 3179 WAS NOT.  NOR
WAS IT INCORPORATED BY REFERENCE; SEC. IIL) MADE APPLICABLE ONLY THOSE
ADMINISTRATIVE AND GENERAL TAX PROVISIONS "NOT INCONSISTENT WITH THE
PROVISIONS OF THIS SECTION," AND SEC. 3179 WAS OBVIOUSLY INCONSISTENT
WITH SEC. IIF). 

THE REVENUE ACT OF 1916, 39 STAT. 756, 775, AND THE ACT OF 1917, 40
STAT. 300, 325, OFFER FURTHER EVIDENCE THAT CONGRESS WITHDREW THE
INCOME TAX FROM THE REACH OF THE GENERAL PROVISIONS OF SEC. 3179.  BOTH
OF THOSE ACTS IMPOSED INCOME TAXES, PROSCRIBED THE MAKING OF FALSE
RETURNS AS A MISDEMEANOR, AND PUNISHED THAT OFFENSE MORE SEVERELY THAN
DID SEC.  3179.  (FN3)  IN ADDITION TO ITS SPECIFIC PROHIBITION OF
FALSE RETURNS, THE 1917 ACT MADE IT AN OFFENSE TO EVADE OR ATTEMPT TO
EVADE TAXES IMPOSED BY IT, THEREBY USING FOR THE FIRST TIME LANGUAGE
SIMILAR TO THAT SUBSEQUENTLY FOUND IN SEC. 145(B). 

IN AN EFFORT TO ESCAPE THE EFFECT OF THE SCHEME FOR PUNISHING INCOME
TAX EVADERS SET FORTH IN THE 1913, 1916, AND 1917 STATUTES, PETITIONER
CLAIMS THAT THE REVENUE ACT OF 1918 MADE SEC. 3179 AGAIN APPLICABLE TO
THE INCOME TAX.  SECTION 253 OF TITLE II, THE INCOME TAX TITLE,
PROVIDED IN PERTINENT PART: 

"ANY INDIVIDUAL  ...  WHO WILLFULLY REFUSES TO PAY OR COLLECT SUCH
REQUIRED TAX, TO MAKE SUCH RETURN, OR TO SUPPLY SUCH INFORMATION AT THE
TIME OR TIMES REQUIRED UNDER THIS TITLE, OR WHO WILLFULLY ATTEMPTS IN
ANY MANNER TO DEFEAT OR EVADE THE TAX IMPOSED BY THIS TITLE, SHALL BE
GUILTY OF A MISDEMEANOR AND SHALL BE FINED NOT MORE THAN $10,000 OR
IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH  ...  ."  40 STAT. 1057,
1085. 

DESPITE SEC. 253'S ADDITION OF THE WORDS "IN ANY MANNER" TO THE
"ATTEMPTS" CLAUSE OF THE 1917 ACT, PETITIONER CONTENDS THAT THE FAILURE
OF SEC. 253 TO SINGLE OUT THE MAKING OF FALSE RETURNS WITH INTENT TO
EVADE MUST BE ATTRIBUTED TO A CONGRESSIONAL DETERMINATION THAT THIS
PARTICULAR MODE OF INCOME TAX EVASION SHOULD BE PUNISHED UNDER SEC.
3179.  PLAINLY ENOUGH, SUCH A READING OF THE ACT IS UNTENABLE.  WE
CANNOT HOLD THAT THE CLASSIC METHOD OF EVADING THE INCOME TAX, THE
FILING OF A FALSE RETURN, DID NOT CONSTITUTE AN ATTEMPT "IN ANY MANNER
TO DEFEAT OR EVADE" THAT TAX.  THIS WOULD EMPTY THOSE WORDS OF THEIR
MOST OBVIOUS CONTENT AND WOULD PRODUCE GLARING INCONGRUITIES.  IT WOULD
MEAN THAT CONGRESS, HAVING MANIFESTED ITS DESIRE IN THE PREVIOUS
REVENUE LAWS TO PUNISH THIS OFFENSE MORE HARSHLY THAN DID SEC. 3179,
INEXPLICABLY REVERSED ITSELF IN AN ACT THAT HEAVILY INCREASED THE
PUNISHMENT FOR ALL OTHER FORMS OF OBSTRUCTION TO THE INCOME TAX.  AND
IT WOULD MEAN THAT CONGRESS PROVIDED A LESSER PENALTY FOR THE MAKING OF
FALSE RETURNS WITH INTENT TO EVADE THAN FOR EITHER WILFUL REFUSAL TO
FILE, WHICH IS USUALLY CONSIDERED TO BE A LESSER OFFENSE, OR REFUSAL TO
FILE WHEN COMBINED WITH AFFIRMATIVE ACTS OF EVASION SUCH AS KEEPING A
DOUBLE SET OF BOOKS.  AN EXPLANATION OF THE OMISSION MORE IN HARMONY
WITH THE RATIONAL SYSTEM OF TAX ADMINISTRATION THAT WAS THE
CONGRESSIONAL DESIGN IS THAT CONGRESS MERELY TRIED TO SPEAK
ECONOMICALLY IN 1918 AND, HAVING PROHIBITED "ATTEMPTS IN ANY MANNER" TO
EVADE THE INCOME TAX, FOUND IT UNNECESSARY ALSO TO PROSCRIBE THE MAJOR
KIND OF ATTEMPT. 

THIS INTERPRETATION GAINS FURTHER SUPPORT FROM THE ACT OF 1924, 43
STAT. 253, 343, WHICH MADE THE LAST SIGNIFICANT ALTERATION OF THE
STATUTORY SCHEME PRIOR TO THE 1939 CODIFICATION.  SECTION 1017(A),
SUBSEQUENTLY SEC. 145(A) OF THE CODE, CONTINUED THE WILFUL FAILURE TO
MAKE RETURNS, SUPPLY INFORMATION OR PAY TAXES AS A MISDEMEANOR CARRYING
A PENALTY OF UP TO ONE YEAR IN PRISON AND A $10,000 FINE.  SECTION
1017(B), THE FUTURE SEC.  145(B), MADE IT A FELONY, WITH A MAXIMUM
PENALTY OF FIVE YEARS IN PRISON AND A $10,000 FINE, TO ATTEMPT "IN ANY
MANNER TO EVADE OR DEFEAT ANY TAX IMPOSED BY THIS ACT."  AND SEC.
1017(C), LATER SEC. 3793(B)(1) OF THE CODE, CREATED A NEW OFFENSE,
WHICH MADE IT A FELONY, WITH A MAXIMUM PENALTY OF FIVE YEARS IN PRISON
AND $10,000 FINE, FOR ANY PERSON WILFULLY TO ASSIST IN THE PREPARATION
OF A FALSE RETURN.  THUS THE 1924 ACT, BY INCREASING THE PUNISHMENT FOR
AFFIRMATIVE ACTS OF EVASION, MADE EVEN MORE PRONOUNCED ONE OF THE
INDICATED ANOMALIES THAT PETITIONER'S VIEW WOULD IMPOSE.  IN ADDITION,
SEC. 1017(C) REQUIRES PETITIONER TO IMPUTE TO CONGRESS A DESIRE TO
PUNISH ONE WHO ASSISTED IN PREPARING A FALSE RETURN MUCH MORE SEVERELY
THAN ONE WHO ACTUALLY MADE THE RETURN WITH INTENT TO EVADE. 

OUR DUTY IS TO GIVE COHERENCE TO WHAT CONGRESS HAS DONE WITHIN THE
BOUNDS IMPOSED BY A FAIR READING OF LEGISLATION.  IN SPIES V. UNITED
STATES, 317 U.S. 492, THE DOMINANT CONSIDERATION THE COURT'S UNANIMOUS
DECISION RELATING SEC. 145(B) TO SEC. 145(A) WAS THE AVOIDANCE OF
INCONGRUITIES ANALOGOUS TO THOSE THAT WOULD RESULT FROM PETITIONER'S
READING OF THE SECTIONS BEFORE US.  THE EVOLUTION OF THOSE SECTIONS
MAKES CLEAR THAT BY THE TIME THE UNCONFINED LANGUAGE OF SEC. 3179
BECAME SEC. 3616(A) OF THE 1939 CODE, ITS SCOPE HAD BEEN SHRUNK BY A
SERIES OF SPECIFIC ENACTMENTS THAT HAD THE POTENCY OF IMPLIED REPEALS. 
DUE REGARD FOR APPROPRIATE STATUTORY CONSTRUCTION CALLS FOR SUCH A
CONCLUSION IN ORDER TO HARMONIZE AN EARLIER, GENERALIZED STATUTE WITH
LATER AD HOC ENACTMENTS EXPRESSLY DIRECTED TO THE COLLECTION OF INCOME
TAXES. 

IN VIEW OF OUR CONCLUSION THAT SEC. 3616(A) DID NOT APPLY TO EVASION
OF THE INCOME TAX, IT BECOMES UNNECESSARY TO CONSIDER OTHER CONTENTIONS
ADVANCED BY PETITIONER.  AFFIRMED. 

FN1  SEC. 145.  PENALTIES. 

"(A)  FAILURE TO FILE RETURNS, SUBMIT INFORMATION, OR PAY TAX.  - ANY
PERSON REQUIRED UNDER THIS CHAPTER TO PAY ANY TAX, OR REQUIRED BY LAW
OR REGULATIONS MADE UNDER AUTHORITY THEREOF TO MAKE A REUTRN, KEEP ANY
RECORDS, OR SUPPLY ANY INFORMATION, FOR THE PURPOSES OF THE
COMPUTATION, ASSESSMENT, OR COLLECTION OF ANY TAX IMPOSED BY THIS
CHAPTER, WHO WILLFULLY FAILS TO PAY SUCH TAX, MAKE SUCH RETURN, KEEP
SUCH RECORDS, OR SUPPLY SUCH INFORMATION, AT THE TIME OR TIMES REQUIRED
BY LAW OR REGULATIONS, SHALL, IN ADDITION TO OTHER PENALTIES PROVIDED
BY LAW, BE GUILTY OF A MISDEMEANOR AND, UPON CONVICTION THEREOF, BE
FINED NOT MORE THAN $10,000, OR IMPRISONED FOR NOT MORE THAN ONE YEAR,
OR BOTH, TOGETHER WITH THE COSTS OF PROSECUTION. 

"(B)  FAILURE TO COLLECT AND PAY OVER TAX, OR ATTEMPT TO DEFEAT OR
EVADE TAX.  - ANY PERSON REQUIRED UNDER THIS CHAPTER TO COLLECT,
ACCOUNT FOR, AND PAY OVER ANY TAX IMPOSED BY THIS CHAPTER, WHO
WILLFULLY FAILS TO COLLECT OR TRUTHFULLY ACCOUNT FOR AND PAY OVER SUCH
TAX, AND ANY PERSON WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR
DEFEAT ANY TAX IMPOSED BY THIS CHAPTER OR THE PAYMENT THEREOF, SHALL,
IN ADDITION TO OTHER PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY
AND, UPON CONVICTION THEREOF, BE FINED NOT MORE THAN $10,000, OR
IMPRISONED FOR NOT MORE THAN FIVE YEARS, OR BOTH, TOGETHER WITH THE
COSTS OF PROSECUTION."  53 STAT. 62-63. 

FN2  BY THE TIME CERTIORARI WAS GRANTED, PETITIONER'S SENTENCE HAD
BEEN REDUCED BY THE DISTRICT COURT TO CONCURRENT ONE-YEAR PRISON TERMS
AND TO A FINE OF $1,000 ON EACH OF THE TWO AFFIRMED COUNTS.  FOR
FURTHER DETAILS OF THE HISTORY OF THE CASE, SEE 352 U.S. 916 AND 353
U.S. 909. 

FN3  THE 1916 ACT PROVIDED THE SAME PUNISHMENT AS THE ACT OF 1913. 
THE 1917 ACT PROVIDED, IN ADDITION TO THE MAXIMUM PENALTIES SET FORTH
IN SEC. 3179, A PENALTY OF DOUBLE THE TAX EVADED. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK CONCUR IN THE RESULT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I DO NOT SEE HOW WE CAN SAY THAT CONGRESS WITHDREW THE INCOME TAX
FROM THE REACH OF SEC. 3616(A).  IN THE 1939 INTERNAL REVENUE CODE THAT
WHICH WAS A PART OF CHAPTER 34, "INFORMATION AND RETURNS," WHICH IN
TURN WAS PART OF SUBTITLE D, "GENERAL ADMINISTRATIVE PROVISIONS." 
ADMINISTRATIVE, SPECIAL, OR STAMP PROVISIONS OF LAW, INCLUDING THE LAW
RELATING TO THE ASSESSMENT OF TAXES, SO FAR AS APPLICABLE  ...  ." 
THESE ADMINISTRATIVE PROVISIONS INCLUDE THE CHAPTER AND SUBTITLE OF
WHICH SEC. 3616(A) IS A PART.  AND BY ITS TERMS SEC. 3616(A) APPLIES TO
"ANY" RETURN.  PLAINLY THEN, CONGRESS IN 1939 CONSIDERED SEC. 3616(A)
AN INSTRUMENT FOR ENFORCING THE INCOME TAX. 

IT TAKES MENTAL GYMNASTICS TO BRING THIS CRIME OUT FROM UNDER SEC.
3616(A) AND TO PLACE IT EXCLUSIVELY UNDER SEC. 145(B).  I WOULD NOT
MAKE THE PENAL CONSEQUENCES OF AN ACT TURN ON A CONSTRUCTION SO
TENUOUS.  I REBEL AGAINST IT, ESPECIALLY BECAUSE THE CONSTRUCTION NOW
ADOPTED SWEEPS THE GROUND OUT FROM UNDER DOZENS OF CRIMINAL CONVICTIONS
WHICH THE GOVERNMENT HAS OBTAINED UNDER SEC. 3616(A).  BETWEEN OCTOBER
1952 AND MARCH 1957 (WHEN THE GOVERNMENT FIRST SUGGESTED TO THIS COURT
THAT SEC. 3616(A) WAS INAPPLICABLE TO THE INCOME TAX), IT INVOKED SEC.
3616(A) IN 175 CASES OF ALLEGED INCOME TAX EVASION.  IT CHOSE SEC.
3616(A), RATHER THAN SEC. 145(B), WHERE IT APPEARED THAT THE CRIME WAS
A RELATIVELY MINOR ONE.  OF THESE 175 CASES, 38 REMAIN UNDISPOSED OF.
OF THE 133 THAT WENT TO TRIAL, 117 RESULTED IN PLEAS OF GUILTY AND 9 IN
PLEAS OF NOLO CONTENDERE.  SEVEN DEFENDANTS WENT TO TRIAL, OF WHOM 5
WERE ACQUITTED AND 2 CONVICTED.  OF THE 128 CONVICTED PERSONS, 26 WERE
SENTENCED TO IMPRISONMENT, THE REST BEING FINED OR GIVEN PROBATION OR
SUSPENDED SENTENCES.  SEVEN OF THE CONVICTED PERSONS WHO WERE SENTENCED
ARE STILL INCARCERATED.    NOW IT APPEARS THAT THE GOVERNMENT DEALT
UNLAWFULLY WITH THIS GROUP OF CITIZENS.  THOSE WHO WERE CONVICTED ON
INDICTMENTS MIGHT HAVE TO BE RESENTENCED.  THOSE WHO WERE CONVICTED ON
INFORMATIONS MUST BE RELEASED. 

IT IS NO ANSWER TO SAY THAT THE RESULT IS "A BREAK" FOR THESE
DEFENDANTS.  FROM THE STATISTICS SUBMITTED TO US BY THE GOVERNMENT IT
APPEARS THAT MANY OF THESE CASES WERE SO MINOR IT IS DIFFICULT TO
IMAGINE A GRAND JURY RETURNING INDICTMENTS ON THEM. 

I WOULD ADHERE TO THE ADMINISTRATIVE CONSTRUCTION THAT SEC. 3616(A)
APPLIED TO THE INCOME TAX.  CONGRESS APPARENTLY WAS OF THAT VIEW.  FOR
WHEN IT CAME TO THE INTERNAL REVENUE CODE OF 1954, IT RE-ENACTED SEC.
3616(A) AS SEC. 7207, ELIMINATING THE WORDS "WITH INTENT TO DEFEAT OR
EVADE" WHICH HAD CAUSED THE OVERLAP WITH SEC. 145(B).  CONGRESS ACTED,
OF COURSE, PROSPECTIVELY. 

THE FACT THAT CONGRESS ACTED IN 1954 TO REMOVE THE AMBIGUITY WITH
WHICH WE DEAL TODAY INDICATES THAT WHAT WE DO IS NOT WITHIN THE
JUDICIAL COMPETENCE. 
..END :





















LIBSON SHOPS, INC. V. KOEHLER 353 U.S. 382 


NO. 64.  ARGUED JANUARY 15, 1957 - DECIDED MAY 27, 1957 - 229 F.2D 220,
AFFIRMED. 


UNDER SECS. 23(S) AND 122 OF THE INTERNAL REVENUE CODE OF 1939, AS
AMENDED, A CORPORATION RESULTING FROM A MERGER OF 17 SEPARATELY
INCORPORATED BUSINESSES WHICH HAD FILED SEPARATE INCOME TAX RETURNS MAY
NOT CARRY OVER AND DEDUCT THE PRE-MERGER NET OPERATING LOSSES OF THREE
OF ITS CONSTITUENT CORPORATIONS FROM THE POST-MERGER INCOME
ATTRIBUTABLE TO THE OTHER BUSINESSES.  PP. 382-390. 

LIBSON SHOPS, INC., V. KOEHLER, DISTRICT DIRECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE ISSUE BEFORE US IS WHETHER, UNDER SECS. 23(S) AND 122 OF THE
INTERNAL REVENUE CODE OF 1939, AS AMENDED, A CORPORATION RESULTING FROM
A MERGER OF 17 SEPARATE INCORPORATED BUSINESSES, WHICH HAD FILED
SEPARATE INCOME TAX RETURNS, MAY CARRY OVER AND DEDUCT THE PRE-MERGER
NET OPERATING LOSSES OF THREE OF ITS CONSTITUENT CORPORATIONS FROM THE
POST-MERGER INCOME ATTRIBUTABLE TO THE OTHER BUSINESSES.  WE HOLD THAT
SUCH A CARRY-OVER AND DEDUCTION IS NOT PERMISSIBLE. 

PETITIONER, LIBSON SHOPS, INC., WAS INCORPORATED ON JANUARY 2, 1946,
UNDER THE LAWS OF MISSOURI, AS LIBSON SHOPS MANAGEMENT CORPORATION, TO
PROVIDE MANAGEMENT SERVICES FOR CORPORATIONS SELLING WOMEN'S APPAREL AT
RETAIL.  ITS ARTICLES OF INCORPORATION ALSO PERMITTED IT TO SELL
APPAREL.  AT ABOUT THE SAME TIME, THE SAME INTERESTS INCORPORATED 16
SEPARATE CORPORATIONS TO SELL WOMEN'S APPAREL AT RETAIL AT SEPARATE
LOCATIONS.  TWELVE WERE INCORPORATED AND WENT INTO BUSINESS IN
MISSOURI; FOUR IN ILLINOIS.  EACH OF THESE 16 SALES CORPORATIONS WAS
OPERATED SEPARATELY AND FILED SEPARATE INCOME TAX RETURNS. 
PETITIONER'S SOLE ACTIVITY WAS TO PROVIDE MANAGEMENT SERVICES FOR
THEM.  THE OUTSTANDING STOCK OF ALL 17 CORPORATIONS WAS OWNED, DIRECTLY
OR INDIRECTLY, BY THE SAME INDIVIDUALS IN THE SAME PROPORTIONS. 

ON AUGUST 1, 1949, THE 16 SALES CORPORATIONS WERE MERGED INTO
PETITIONER UNDER THE LAWS OF MISSOURI AND ILLINOIS.  NEW SHARES OF
PETITIONER'S STOCK WERE ISSUED, PRO RATA, IN EXCHANGE FOR THE STOCK OF
THE SALES CORPORATIONS.  BY VIRTUE OF THE MERGER AGREEMENT,
PETITIONER'S NAME WAS CHANGED, THE AMOUNT AND PAR VALUE OF ITS STOCK
REVISED, AND ITS CORPORATE PURPOSES EXPANDED.  FOLLOWING THE MERGER,
PETITIONER CONDUCTED THE ENTIRE BUSINESS AS A SINGLE ENTERPRISE.  THUS,
THE EFFECT OF THE MERGER WAS TO CONVERT 16 RETAIL BUSINESSES AND ONE
MANAGING AGENCY, REPORTING THEIR INCOME SEPARATELY, INTO A SINGLE
ENTERPRISE FILING ONE INCOME TAX RETURN. 

PRIOR TO THE MERGER, THREE OF THE SALES CORPORATIONS SHOWED NET
OPERATING LOSSES.  THESE WERE AS FOLLOWS: 

CORPORATION                TAXABLE PERIOD                AMOUNT 

EVANSTON LIBSON SHOPS, INC.  CALENDAR YEAR 1948            $8,115.11

                            FISCAL PERIOD BEGUN JAN. 1,

                           1949, AND ENDED JULY 31,

                      1949                           6,422.28 

LAWRENCE LIBSON SHOPS, INC.  FISCAL PERIOD ENDED JULY

                           31, 1948 245.03

                            FISCAL YEAR ENDED JULY 31,

                            1949      2,770.42 

HAMPTON LIBSON SHOPS, INC.   FISCAL YEAR ENDED JULY 31,

                            1949             4,879.92 

TOTAL                      $22,432.76 

IN THE YEAR FOLLOWING THE MERGER, EACH OF THE RETAIL UNITS FORMERLY
OPERATED BY THESE THREE CORPORATIONS CONTINUED TO SUSTAIN A NET
OPERATING LOSS. 

IN ITS INCOME TAX RETURN FOR THE FIRST YEAR AFTER THE MERGER,
PETITIONER CLAIMED A DEDUCTION OF THE ABOVE $22,432.76 AS A CARRY-OVER
OF ITS PRE-MERGER LOSSES.  PETITIONER SOUGHT THIS DEDUCTION UNDER SECS.
23(S) AND 122 OF THE INTERNAL REVENUE CODE OF 1939, AS AMENDED.  THE
COMMISSIONER OF INTERNAL REVENUE DISALLOWED IT AND PETITIONER PAID THE
RESULTING TAX DEFICIENCY.  IN DUE COURSE PETITIONER BROUGHT THIS SUIT
FOR A REFUND IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF MISSOURI.  THAT COURT DISMISSED PETITIONER'S COMPLAINT AND
THE COURT OF APPEALS AFFIRMED.  229 F.2D 220.  WE GRANTED CERTIORARI TO
DECIDE THE QUESTIONS OF TAX LAW INVOLVED.  351 U.S. 961. 

UNDER SECTION 122."  (FN1) SECTION 122 PRESCRIBES THREE BASIC RULES FOR
THIS CALCULATION.  ITS PERTINENT PARTS PROVIDE GENERALLY (1) THAT A
"NET OPERATING LOSS" IS THE EXCESS OF THE TAXPAYER'S DEDUCTIONS OVER
ITS GROSS INCOME (SEC. 122(A)); (2) THAT, IF THE TAXPAYER HAS A NET
OPERATING LOSS, THE LOSS MAY BE USED AS A "NET OPERATING LOSS CARRY
BACK" TO THE TWO PRIOR YEARS (SEC. 122(B)(1)(A)) AND, IF NOT EXHAUSTED
BY THAT CARRY-BACK, THE REMAINDER MAY BE USED AS A "NET OPERATING LOSS
CARRY-OVER" TO THE THREE SUCCEEDING YEARS (SEC. 122(B)(2)(C)); AND (3)
THAT THE AGGREGATE OF THE NET OPERATING LOSS CARRY-BACKS AND CARRY
OVERS APPLICABLE TO A GIVEN TAXABLE YEAR IS THE "NET OPERATING LOSS
DEDUCTION" FOR THE PURPOSES OF SEC. 23(S)(SEC.  122(C)). 

WE ARE CONCERNED HERE WITH A CLAIM TO CARRY OVER AN OPERATING LOSS TO
THE IMMEDIATELY SUCCEEDING TAXABLE YEAR.  THE PARTICULAR PROVISION ON
WHICH PETITIONER'S CASE RESTS IS AS FOLLOWS: 

"IF FOR ANY TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1947, AND
BEFORE JANUARY 1, 1950, THE TAXPAYER HAS A NET OPERATING LOSS, SUCH NET
OPERATING LOSS SHALL BE A NET OPERATING LOSS CARRY-OVER FOR EACH OF THE
THREE SUCCEEDING TAXABLE YEARS  ...  ."  SEC. 122(B)(2)(C), 64 STAT.
937, 938, 65 STAT. 505, 26 U.S.C. SEC. 122 (B)(2)(C). 

THE CONTROVERSY CENTERS ON THE MEANING OF "THE TAXPAYER."  (FN2)  THE
CONTENTIONS OF THE PARTIES REQUIRE US TO DECIDE WHETHER IT CAN BE SAID
THAT PETITIONER, A COMBINATION OF 16 SALES BUSINESSES, IS "THE
TAXPAYER" HAVING THE PRE-MERGER LOSSES OF THREE OF THOSE BUSINESSES. 

IN SUPPORT OF ITS DENIAL OF THE CARRY-OVER, THE GOVERNMENT ARGUES
THAT THIS STATUTORY PRIVILEGE IS NOT AVAILABLE UNLESS THE CORPORATION
CLAIMING IT IS THE SAME TAXABLE ENTITY AS THAT WHICH SUSTAINED THE
LOSS.  IN RELIANCE ON NEW COLONIAL CO. V. HELVERING, 292 U.S. 435, AND
CASES FOLLOWING IT, (FN3) THE GOVERNMENT ARGUES THAT SEPARATELY
CHARTERED CORPORATIONS ARE NOT THE SAME TAXABLE ENTITY.  PETITIONER, ON
THE OTHER HAND, RELYING ON HELVERING V. METROPOLITAN EDISON CO., 306
U.S. 522, AND CASES FOLLOWING IT, (FN4) ARGUES THAT A CORPORATION
RESULTING FROM A STATUTORY MERGER IS TREATED AS THE SAME TAXABLE ENTITY
AS ITS CONSTITUENTS TO WHOSE LEGAL ATTRIBUTES IT HAS SUCCEEDED BY
OPERATION OF STATE LAW.  HOWEVER, WE FIND IT UNNECESSARY TO DISCUSS
THIS ISSUE SINCE AN ALTERNATIVE ARGUMENT MADE BY THE GOVERNMENT IS
DISPOSITIVE OF THIS CASE.  THE GOVERNMENT CONTENDS THAT THE CARRY-OVER
PRIVILEGE IS NOT AVAILABLE UNLESS THERE IS A CONTINUITY OF BUSINESS
ENTERPRISE.  IT ARGUES THAT THE PRIOR YEAR'S LOSS CAN BE OFFSET AGAINST
THE CURRENT YEAR'S INCOME ONLY TO THE EXTENT THAT THIS INCOME IS
DERIVED FROM THE OPERATION OF SUBSTANTIALLY THE SAME BUSINESS WHICH
PRODUCED THE LOSS.  ONLY TO THAT EXTENT IS THE SAME "TAXPAYER"
INVOLVED. 

THE REQUIREMENT OF A CONTINUITY OF BUSINESS ENTERPRISE AS APPLIED TO
THIS CASE IS IN ACCORD WITH THE LEGISLATIVE HISTORY OF THE CARRY-OVER
AND CARRY-BACK PROVISIONS.  THOSE PROVISIONS WERE ENACTED TO AMELIORATE
THE UNDULY DRASTIC CONSEQUENCES OF TAXING INCOME STRICTLY ON AN ANNUAL
BASIS.  THEY WERE DESIGNED TO PERMIT A TAXPAYER TO SET OFF ITS LEAN
YEARS AGAINST ITS LUSH YEARS, AND TO STRIKE SOMETHING LIKE AN AVERAGE
TAXABLE INCOME COMPUTED OVER A PERIOD LONGER THAN ONE YEAR.  (FN5)
THERE IS, HOWEVER, NO INDICATION IN THEIR LEGISLATIVE HISTORY THAT
THESE PROVISIONS WERE DESIGNED TO PERMIT THE AVERAGING OF THE PRE
MERGER LOSSES OF ONE BUSINESS WITH THE POST-MERGER INCOME OF SOME OTHER
BUSINESS WHICH HAD BEEN OPERATED AND TAXED SEPARATELY BEFORE THE
MERGER.  WHAT HISTORY THERE IS SUGGESTS THAT CONGRESS PRIMARILY WAS
CONCERNED WITH THE FLUCTUATING INCOME OF A SINGLE BUSINESS.  (FN6) 

THIS DISTINCTION IS RECOGNIZED BY THE VERY CASES ON WHICH PETITIONER
RELIES.  IN STANTON BREWERY, INC. V. COMMISSIONER, 176 F.2D 573, 577,
THE COURT OF APPEALS STRESSED THE FACT THAT THE MERGING CORPORATIONS
THERE INVOLVED CARRIED ON "ESSENTIALLY A CONTINUING ENTERPRISE,
ENTITLED TO ALL  ... BENEFITS OF THE CARRY-OVER PROVISIONS IN
AMELIORATING OTHERWISE HARSH TAX CONSEQUENCES OF FLUCTUATING PROFITS OR
EXPANDING BUSINESS."  AND IN NEWMARKET MANUFACTURING CO. V. UNITED
STATES, 233 F.2D 493, 497, THE COURT EXPRESSLY DISTINGUISHED THE CASE
BEFORE IT FROM THE INSTANT CASE ON THE GROUND THAT THERE "ONE SINGLE
BUSINESS" WAS INVOLVED IN THE MERGER, WHILE IN THIS CASE THERE WERE
"SEVERAL BUSINESSES."  (FN7) 

THIS DIFFERENCE IS NOT MERELY A MATTER OF FORM.  IN THE NEWMARKET
CASE, SUPRA, A CORPORATION DESIRING TO CHANGE THE STATE OF ITS DOMICILE
CAUSED THE ORGANIZATION OF A NEW CORPORATION AND MERGED INTO IT.  THE
NEW CORPORATION SOUGHT TO CARRY BACK ITS POST-MERGER LOSSES TO THE PRE
MERGER INCOME OF THE OLD CORPORATION.  BUT FOR THE MERGER, THE OLD
CORPORATION ITSELF WOULD HAVE BEEN ENTITLED TO A CARRY-BACK.  IN THE
PRESENT CASE, THE 16 SALES CORPORATIONS, PRIOR TO THE MERGER, CHOSE TO
FILE SEPARATE INCOME TAX RETURNS RATHER THAN TO POOL THEIR INCOME AND
LOSSES BY FILING A CONSOLIDATED RETURN.  PETITIONER IS ATTEMPTING TO
CARRY OVER THE PRE-MERGER LOSSES OF THREE BUSINESS UNITS WHICH
CONTINUED TO HAVE LOSSES AFTER THE MERGER.  HAD THERE BEEN NO MERGER,
THESE BUSINESSES WOULD HAVE HAD NO OPPORTUNITY TO CARRY OVER THEIR
LOSSES.  IF PETITIONER IS PERMITTED TO TAKE A CARRY-OVER, THE 16 SALES
BUSINESSES HAVE ACQUIRED BY MERGER AN OPPORTUNITY THAT THEY ELECTED TO
FOREGO WHEN THEY CHOSE NOT TO FILE A CONSOLIDATED RETURN. 

WE DO NOT IMPLY THAT A QUESTION OF TAX EVASION OR AVOIDANCE IS
INVOLVED.  SECTION 129(A) OF THE 1939 CODE, AS AMENDED, DOES CONTAIN
PROVISIONS WHICH MAY VITIATE A TAX DEDUCTION THAT WAS MADE POSSIBLE BY
THE ACQUISITION OF CORPORATE PROPERTY FOR THE "PRINCIPAL PURPOSE" OF
TAX EVASION OR AVOIDANCE.  (FN8)  AND THAT SECTION IS INAPPLICABLE HERE
SINCE THERE WAS NO FINDING THAT TAX EVASION OR AVOIDANCE WAS THE
"PRINCIPAL PURPOSE" OF THE MERGER.  THE FACT THAT SEC. 129(A) IS
INAPPLICABLE DOES NOT MEAN THAT PETITIONER IS AUTOMATICALLY ENTITLED TO
A CARRY-OVER.  THE AVAILABILITY OF THIS PRIVILEGE DEPENDS ON THE PROPER
INTERPRETATION TO BE GIVEN TO THE CARRY-OVER PROVISIONS.  WE FIND
NOTHING IN THOSE PROVISIONS WHICH SUGGESTS THAT THEY SHOULD BE
CONSTRUED TO GIVE A "WINDFALL" TO A TAXPAYER WHO HAPPENS TO HAVE MERGED
WITH OTHER CORPORATIONS.  THE PURPOSE OF THESE PROVISIONS IS NOT TO
GIVE A MERGED TAXPAYER A TAX ADVANTAGE OVER OTHERS WHO HAVE NOT
MERGED.  WE CONCLUDE THAT PETITIONER IS NOT ENTITLED TO A CARRY-OVER
SINCE THE INCOME AGAINST WHICH THE OFFSET IS CLAIMED WAS NOT PRODUCED
BY SUBSTANTIALLY THE SAME BUSINESSES WHICH INCURRED THE LOSSES.  (FN9) 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  AS ORIGINALLY ADDED TO THE 1939 CODE BY THE REVENUE ACT OF 1939,
C. 247, 53 STAT.  862, 867-868, SEC. 122 PROVIDED FOR THE COMPUTATION
AND CARRY-OVER OF NET OPERATING LOSSES WITHOUT EXPRESSLY RELATING THEM
TO A GIVEN TAXPAYER.  SECTION 153(A) OF THE REVENUE ACT OF 1942, C.
619, 56 STAT. 798, 847-848, AMENDED SEC. 122(B) NOT ONLY TO ALLOW CARRY
BACKS FOR THE FIRST TIME, BUT ALSO TO PROVIDE, AS TO BOTH CARRY-BACKS
AND CARRY-OVERS, THAT IT WAS ONLY THE NET OPERATING LOSSES OF "THE
TAXPAYER" WHICH COULD BE SO UTILIZED. 

FN2  THESE WORDS HAVE BEEN OMITTED FROM THE NEW PROVISIONS OF THE
INTERNAL REVENUE CODE OF 1954 RELATING TO CARRY-BACKS AND CARRY-OVERS
AFTER CORPORATE ACQUISITIONS OF ASSETS OF ANOTHER CORPORATION.  SEE
SECS. 381, 382. 

FN3  E.G., STANDARD PAVING CO. V. COMMISSIONER, 190 F.2D 330; WEBER
FLOUR MILLS CO. V. COMMISSIONER, 82 F.2D 764; PENNSYLVANIA CO. V.
COMMISSIONER, 75 F.2D 719; SHREVEPORT PRODUCING & REFINING CO. V.
COMMISSIONER, 71 F.2D 972; BRANDON CORP. V. COMMISSIONER, 71 F.2D 762. 

FN4  E.G., NEWMARKET MANUFACTURING CO. V. UNITED STATES, 233 F.2D
493; E.&J. GALLO WINERY V. COMMISSIONER, 227 F.2D 699; STANTON BREWERY,
INC. V. COMMISSIONER, 176 F.2D 573; KOPPERS CO. V. UNITED STATES, 133
CT. CL. 22, 134 F. SUPP. 290. 

FN5  SEE LEWYT CORP. V. COMMISSIONER, 349 U.S. 237, 243-244
(DISSENTING OPINION); MANNING V. SEELEY TUBE & BOX CO., 338 U.S. 561,
566-567; STANTON BREWERY, INC. V. COMMISSIONER, 176 F.2D 573, 574; H.R.
REP. NO. 855, 76TH CONG., 1ST SESS. 9-10; S. REP.  NO. 1631, 77TH
CONG., 2D SESS. 51-52. 

FN6  THE HOUSE COMMITTEE ON WAYS AND MEANS, REPORTING ON SEC. 122 AS
IT WAS ORIGINALLY ADDED TO THE 1939 CODE BY THE REVENUE ACT OF 1939, C.
247, 53 STAT. 862, 867-868, STATED THAT: 

"THE BILL, TOGETHER WITH THE COMMITTEE AMENDMENTS, PERMITS TAXPAYERS
TO CARRY OVER NET OPERATING BUSINESS LOSSES FOR A PERIOD OF 2 YEARS. 
PRIOR TO THE REVENUE ACT OF 1932, SUCH 2-YEAR CARRY-OVER WAS ALLOWED. 
NO NET LOSS HAS EVER BEEN ALLOWED FOR A GREATER PERIOD THAN 2 YEARS. 
IN THE REVENUE ACT OF 1932, THE 2-YEAR NET LOSS CARRY-OVER WAS REDUCED
TO 1 YEAR AND IN THE NATIONAL INDUSTRIAL RECOVERY ACT THE NET LOSS
CARRY-OVER WAS ENTIRELY ELIMINATED.  AS A RESULT OF THE ELIMINATION OF
THIS CARRY-OVER, A BUSINESS WITH ALTERNATING PROFIT AND LOSS IS
REQUIRED TO PAY HIGHER TAXES OVER A PERIOD OF YEARS THAN A BUSINESS
WITH STABLE PROFITS, ALTHOUGH THE AVERAGE INCOME OF THE TWO FIRMS IS
EQUAL.  NEW ENTERPRISES AND THE CAPITAL-GOODS INDUSTRIES ARE ESPECIALLY
SUBJECT TO WIDE FLUCTUATIONS IN EARNINGS.  IT IS, THEREFORE, BELIEVED
THAT THE ALLOWANCE OF A NET OPERATING BUSINESS LOSS CARRY-OVER WILL
GREATLY AID BUSINESS AND STIMULATE NEW ENTERPRISES."  H.R. REP. NO.
855, 76TH CONG., 1ST SESS. 9.    FN7  KOPPERS CO. V. UNITED STATES, 133
CT. CL. 22, 134 F. SUPP. 290, ALSO INVOLVES A SITUATION IN WHICH THE
CORPORATION RESULTING FROM THE MERGER CARRIED ON ESSENTIALLY THE SAME
TAXABLE ENTERPRISE AS BEFORE, SINCE THE MERGED CORPORATIONS HAD BEEN
FILING CONSOLIDATED TAX RETURNS.  E.&J. GALLO WINERY V. COMMISSIONER,
227 F.2D 699, IS INCONCLUSIVE ON THIS POINT SINCE THE OPINION DOES NOT
DISCLOSE WHETHER OR NOT A CONTINUING ENTERPRISE WAS INVOLVED.  CF. SEC.
382(A) OF THE INTERNAL REVENUE CODE OF 1954 RELATING TO THE PURCHASE OF
A CORPORATION AND CHANGE IN ITS TRADE OR BUSINESS.  UNDER CIRCUMSTANCES
THERE DEFINED, THAT SECTION PRECLUDES A CARRY-OVER BY THE SAME
CORPORATION, UNLESS IT CONTINUES TO ENGAGE IN "SUBSTANTIALLY THE SAME"
TRADE OR BUSINESS AS BEFORE THE CHANGE IN OWNERSHIP.  SEC. 382
(A)(1)(C). 

FN8  THE REVENUE ACT OF 1943, C. 63, 58 STAT. 21, 47, BY SEC. 128,
ADDED TO THE 1939 CODE THE FOLLOWING SECTION: 

"SEC. 129.  ACQUISITIONS MADE TO EVADE OR AVOID INCOME OR EXCESS
PROFITS TAX. 

"(A) DISALLOWANCE OF DEDUCTION, CREDIT, OR ALLOWANCE.  - IF (1) ANY
PERSON OR PERSONS ACQUIRE, ON OR AFTER OCTOBER 8, 1940, DIRECTLY OR
INDIRECTLY, CONTROL OF A CORPORATION, OR (2) ANY CORPORATION ACQUIRES,
ON OR AFTER OCTOBER 8, 1940, DIRECTLY OR INDIRECTLY, PROPERTY OF
ANOTHER CORPORATION, NOT CONTROLLED, DIRECTLY OR INDIRECTLY,
IMMEDIATELY PRIOR TO SUCH ACQUISITION, BY SUCH ACQUIRING CORPORATION OR
ITS STOCKHOLDERS, THE BASIS OF WHICH PROPERTY, IN THE HANDS OF THE
ACQUIRING CORPORATION, IS DETERMINED BY REFERENCE TO THE BASIS IN THE
HANDS OF THE TRANSFEROR CORPORATION, AND THE PRINCIPAL PURPOSE FOR
WHICH SUCH ACQUISITION WAS MADE IS EVASION OR AVOIDANCE OF FEDERAL
INCOME OR EXCESS PROFITS TAX BY SECURING THE BENEFIT OF A DEDUCTION,
CREDIT, OR OTHER ALLOWANCE WHICH SUCH PERSON OR CORPORATION WOULD NOT
OTHERWISE ENJOY, THEN SUCH DEDUCTION, CREDIT, OR OTHER ALLOWANCE SHALL
NOT BE ALLOWED.  FOR THE PURPOSES OF CLAUSES (1) AND (2), CONTROL MEANS
THE OWNERSHIP OF STOCK POSSESSING AT LEAST 50 PER CENTUM OF THE TOTAL
COMBINED VOTING POWER OF ALL CLASSES OF STOCK ENTITLED TO VOTE OR AT
LEAST 50 PER CENTUM OF THE TOTAL VALUE OF SHARES OF ALL CLASSES OF
STOCK OF THE CORPORATION." 

SEE H.R. REP. NO. 871, 78TH CONG., 1ST SESS. 24, 49-50; S. REP. NO.
627, 78TH CONG., 1ST SESS. 26-27, 58-61. 

FN9  WE DO NOT PASS ON SITUATIONS LIKE THOSE PRESENTED IN NORTHWAY
SECURITIES CO. V. COMMISSIONER, 23 B.T.A. 532; ALPROSA WATCH CORP. V.
COMMISSIONER, 11 T.C. 240; A.B. & CONTAINER CORP. V. COMMISSIONER, 14
T.C. 842; WAGE, INC. V. COMMISSIONER, 19 T.C. 249.  IN THESE CASES A
SINGLE CORPORATE TAXPAYER CHANGED THE CHARACTER OF ITS BUSINESS AND THE
TAXABLE INCOME OF ONE OF ITS ENTERPRISES WAS REDUCED BY THE DEDUCTIONS
OR CREDITS OF ANOTHER. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :










GRUNEWALD V. UNITED STATES 353 U.S. 391 


NO. 183.  ARGUED APRIL 3-4, 1957 - DECIDED MAY 27, 1957 - 233 F.2D 556,
REVERSED AND REMANDED. 


1.  THE THREE PETITIONERS WERE CONVICTED IN A FEDERAL DISTRICT COURT
OF VIOLATING 18 U.S.C. SEC. 371 BY CONSPIRING TO DEFRAUD THE UNITED
STATES BY PREVENTING THE CRIMINAL PROSECUTION OF CERTAIN TAXPAYERS FOR
FRAUDULENT TAX EVASION.  THEY HAD SUCCEEDED IN OBTAINING "NO
PROSECUTION" RULINGS FROM THE BUREAU OF INTERNAL REVENUE IN 1948 AND
1949, AND THEIR SUBSEQUENT ACTIVITIES WERE DIRECTED AT CONCEALING THE
IRREGULARITIES THROUGH WHICH THESE RULINGS WERE OBTAINED.  THEY WERE
NOT INDICTED UNTIL OCTOBER 25, 1954.  HELD:  IF THE MAIN OBJECTIVE OF
THE CONSPIRACY WAS TO OBTAIN THE "NO PROSECUTION" RULINGS, PETITIONERS'
PROSECUTION WAS BARRED BY THE THREE-YEAR STATUTE OF LIMITATIONS, SINCE
NO AGREEMENT TO CONCEAL THE CONSPIRACY AFTER ITS ACCOMPLISHMENT WAS
SHOWN OR CAN BE IMPLIED ON THE RECORD IN THIS CASE TO HAVE BEEN A PART
OF THE CONSPIRACY.  PP. 399-406. 

(A)  AFTER THE CENTRAL CRIMINAL PURPOSES OF A CONSPIRACY HAVE BEEN
ATTAINED, A SUBSIDIARY CONSPIRACY TO CONCEAL THE CRIME MAY NOT BE
IMPLIED FROM CIRCUMSTANTIAL EVIDENCE SHOWING MERELY THAT THE CONSPIRACY
WAS KEPT A SECRET AND THAT THE CONSPIRATORS TOOK CARE TO COVER UP THEIR
CRIME IN ORDER TO ESCAPE DETECTION AND PUNISHMENT.  KRULEWITCH V.
UNITED STATES, 336 U.S. 440; LUTWAK V. UNITED STATES, 344 U.S. 604. 
PP. 399-402. 

(B)  ON THE RECORD IN THIS CASE, NOTHING MORE IS SHOWN THAN (1) A
CRIMINAL CONSPIRACY CARRIED OUT IN SECRECY, (2) A CONTINUATION OF THE
SECRECY AFTER ACCOMPLISHMENT OF THE CRIME, AND (3) ATTEMPTS TO COVER UP
AFTER THE CRIME BEGAN TO COME TO LIGHT.  PP. 402-404. 

(C)  THE DURATION OF A CONSPIRACY CANNOT BE LENGTHENED INDEFINITELY
FOR THE PURPOSE OF THE STATUTE OF LIMITATIONS MERELY BECAUSE THE
CONSPIRACY IS KEPT SECRET AND THE CONSPIRATORS TAKE STEPS TO BURY THEIR
TRACES, IN ORDER TO AVOID DETECTION AND PUNISHMENT AFTER THE CENTRAL
CRIMINAL PURPOSE HAS BEEN ACCOMPLISHED.  PP. 399, 404-405. 

2.  THE JUDGE'S CHARGE TO THE JURY WAS NOT ADEQUATE TO JUSTIFY
PETITIONERS' CONVICTION ON THE THEORY THAT THE MAIN OBJECTIVE OF THE
CONSPIRACY WAS NOT MERELY TO OBTAIN THE INITIAL "NO PROSECUTION"
RULINGS BUT TO OBTAIN FINAL IMMUNITY OF THE TAXPAYERS FROM CRIMINAL
PROSECUTION BY PREVENTING THEIR PROSECUTION UNTIL AFTER EXPIRATION OF
THE SIX-YEAR STATUTE OF LIMITATIONS APPLICABLE TO THEIR TAX-EVASION
OFFENSES, WHICH DID NOT EXPIRE UNTIL LESS THAN THREE YEARS BEFORE
PETITIONERS WERE INDICTED FOR CONSPIRACY - SINCE THE JUDGE'S CHARE LEFT
IT OPEN FOR THE JURY TO CONVICT EVEN THOUGH IT FOUND MERELY (1) THAT
THE CENTRAL AIM OF THE CONSPIRACY WAS ACCOMPLISHED IN 1949, AND (2)
THAT THE SUBSEQUENT ACTS OF CONCEALMENT WERE MOTIVATED EXCLUSIVELY BY
PETITIONERS' FEAR OF A CONSPIRACY PROSECUTION.  PP. 406-415. 

3.  PETITIONER HALPERIN WAS ALSO CONVICTED ON OTHER COUNTS OF THE
INDICTMENT CHARGING HIM WITH VIOLATING 18 U.S.C. SEC. 1503 BY
ENDEAVORING CORRUPTLY TO INFLUENCE CERTAIN WITNESSES BEFORE A GRAND
JURY WHICH WAS INVESTIGATING MATTERS INVOLVED IN THE CONSPIRACY.  AT
HIS TRIAL, HE ANSWERED CERTAIN QUESTIONS IN A MANNER CONSISTENT WITH
INNOCENCE AND THEN, OVER HIS OBJECTIONS, WAS SUBJECTED TO CROSS
EXAMINATIONS WHICH REVEALED THAT HE HAD REFUSED TO ANSWER THE SAME
QUESTIONS, ON GROUNDS OF POSSIBLE SELF-INCRIMINATION, WHILE HE WAS
APPEARING BEFORE A GRAND JURY, UNDER SUBPOENA, WITHOUT BENEFIT OF
COUNSEL, WITHOUT THE RIGHT TO SUMMON WITNESSES AND WITHOUT ANY
OPPORTUNITY TO CROSS-EXAMINE WITNESSES TESTIFYING AGAINST HIM.  HELD:
IN THE CIRCUMSTANCES OF THIS CASE, IT WAS PREJUDICIAL ERROR FOR THE
TRIAL JUDGE TO PERMIT CROSS-EXAMINATION OF HALPERIN ON HIS PLEA OF THE
FIFTH AMENDMENT PRIVILEGE BEFORE THE GRAND JURY.  RAFFEL V. UNITED
STATES, 271 U.S. 494, DISTINGUISHED.  PP. 415-424. 

GRUNEWALD V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT.* 

*TOGETHER WITH NO. 184, HALPERIN V. UNITED STATES, AND NO. 186,
BOLICH V. UNITED STATES, ALSO ON CERTIORARI TO THE SAME COURT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE THREE PETITIONERS WERE CONVICTED ON COUNT 1 OF AN INDICTMENT
BROUGHT UNDER 18 U.S.C.  SEC. 371 (FN1) FOR CONSPIRACY TO DEFRAUD THE
UNITED STATES WITH REFERENCE TO CERTAIN TAX MATTERS.  PETITIONER
HALPERIN WAS ALSO CONVICTED ON COUNTS 5, 6, AND 7 OF THE SAME
INDICTMENT, CHARGING HIM WITH VIOLATING 18 U.S.C. SEC. 1503 (FN2) BY
ENDEAVORING CORRUPTLY TO INFLUENCE CERTAIN WITNESSES BEFORE A GRAND
JURY WHICH WAS INVESTIGATING MATTERS INVOLVED IN THE CONSPIRACY CHARGED
IN COUNT 1 OF THE INDICTMENT.  EACH PETITIONER WAS SENTENCED TO FIVE
YEARS' IMPRISONMENT AND FINED UNDER COUNT 1.  ON EACH OF COUNTS 5, 6,
AND 7, HALPERIN WAS SENTENCED TO TWO YEARS' IMPRISONMENT AND A FINE OF
$1,000, THE PRISON SENTENCES ON THESE COUNTS AND THAT ON COUNT 1 TO RUN
CONCURRENTLY.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED,
WITH THE LATE JUDGE FRANK DISSENTING.  233 F.2D 556.  WE GRANTED
CERTIORARI, 352 U.S. 866, IN ORDER TO RESOLVE IMPORTANT QUESTIONS
RELATING TO (A) THE STATUTE OF LIMITATIONS IN CONSPIRACY PROSECUTIONS,
AS TO WHICH THE DECISION BELOW WAS ALLEGED TO BE IN CONFLICT WITH THIS
COURT'S DECISIONS IN KRULEWITCH V. UNITED STATES, 336 U.S. 440, AND
LUTWAK V. UNITED STATES, 344 U.S. 604; AND (B) THE USE ON HALPERIN'S
CROSS-EXAMINATION OF HIS PRIOR CLAIM OF THE FIFTH AMENDMENT'S PRIVILEGE
AGAINST SELF-INCRIMINATIONS BEFORE A GRAND JURY.  FOR THE REASONS
DISCUSSED HEREAFTER, WE CONCLUDE THAT THESE CONVICTIONS MUST BE
REVERSED, AND THE PETITIONERS GRANTED A NEW TRIAL. 

ON OCTOBER 25, 1954, A GRAND JURY RETURNED AN INDICTMENT, COUNT 1 OF
WHICH CHARGED PETITIONERS AND OTHERS WITH CONSPIRING AMONG THEMSELVES
AND WITH OTHERS "TO DEFRAUD THE UNITED STATES IN THE EXERCISE OF ITS
GOVERNMENTAL FUNCTIONS OF ADMINISTERING THE INTERNAL REVENUE LAWS AND
OF DETECTING AND PROSECUTING VIOLATIONS OF THE INTERNAL REVENUE LAWS
FREE FROM BRIBERY, UNLAWFUL IMPAIRMENT, OBSTRUCTION, IMPROPER
INFLUENCE, DISHONESTY, FRAUD AND CORRUPTION  ...  ."  THE INDICTMENT
FURTHER CHARGED THAT A PART OF THE CONSPIRACY WAS AN AGREEMENT TO
CONCEAL THE ACTS OF THE CONSPIRATORS.  (FN3)  OVERT ACTS WITHIN THREE
YEARS OF THE DATE OF THE INDICTMENT WERE CHARGED.  COUNTS 5, 6, AND 7
OF THE INDICTMENT CHARGED PETITIONERS WITH VIOLATING 18 U.S.C. SEC.
1503 IN THE MANNER ALREADY INDICATED. 

THE PROOFS AT THE TRIAL PRESENTED A SORDID PICTURE OF A RING ENGAGED
IN THE BUSINESS OF "FIXING" TAX FRAUD CASES BY THE USE OF BRIBES AND
IMPROPER INFLUENCE.  IN GENERAL OUTLINE, THE PETITIONERS' SCHEME, WHICH
IS SET FORTH IN MORE DETAIL IN THE COURT OF APPEALS' OPINION, (FN4) WAS
AS FOLLOWS: 

IN 1947 AND 1948 TWO NEW YORK BUSINESS FIRMS, PATULLO MODES AND
GOTHAM BEEF CO., WERE UNDER INVESTIGATION BY THE BUREAU OF INTERNAL
REVENUE FOR SUSPECTED FRAUDULENT TAX EVASION.  THROUGH INTERMEDIARIES,
BOTH FIRMS ESTABLISHED CONTACT WITH HALPERIN, A NEW YORK ATTORNEY, AND
HIS ASSOCIATES IN LAW PRACTICE.  HALPERIN IN TURN CONDUCTED
NEGOTIATIONS ON BEHALF OF THESE FIRMS WITH GRUNEWALD, AN "INFLUENTIAL"
FRIEND IN WASHINGTON, AND REPORTED THAT GRUNEWALD, FOR A LARGE CASH
FEE, WOULD UNDERTAKE TO PREVENT CRIMINAL PROSECUTION OF THE TAXPAYERS. 
GRUNEWALD THEN USED HIS INFLUENCE WITH BOLICH, AN OFFICIAL IN THE
BUREAU, TO OBTAIN "NO PROSECUTION" RULINGS (FN5) IN THE TWO TAX CASES. 
THESE RULINGS WERE HANDED DOWN IN 1948 AND 1949.  GRUNEWALD, THROUGH
HALPERIN, WAS SUBSEQUENTLY PAID $60,000 BY GOTHAM AND $100,000 BY
PATULLO.  (FN6) 

SUBSEQUENT ACTIVITIES OF THE CONSPIRATORS WERE DIRECTED AT CONCEALING
THE IRREGULARITIES IN THE DISPOSITION OF THE PATULLO AND GOTHAM CASES. 
BOLICH ATTEMPTED TO HAVE THE BUREAU OF INTERNAL REVENUE REPORT ON THE
PATULLO CASE "DOCTORED," AND CAREFUL STEPS WERE TAKEN TO COVER UP THE
TRACES OF THE CASH FEES PAID TO GRUNEWALD.  IN 1951 A CONGRESSIONAL
INVESTIGATION WAS STARTED BY THE KING COMMITTEE OF THE HOUSE OF
REPRESENTATIVES; THE CONSPIRATORS FELT THEMSELVES THREATENED AND TOOK
STEPS TO HIDE THEIR TRACES.  THUS BOLICH CAUSED THE DISAPPEARANCE OF
CERTAIN RECORDS LINKING HIM TO GRUNEWALD, AND THE TAXPAYERS WERE
REPEATEDLY WARNED TO KEEP QUIET.  IN 1952 THE TAXPAYERS AND THE
CONSPIRATORS WERE CALLED BEFORE A BROOKLYN GRAND JURY.  HALPERIN
ATTEMPTED TO INDUCE THE TAXPAYERS NOT TO REVEAL THE CONSPIRACY, AND
GRUNEWALD ASKED HIS SECRETARY NOT TO TALK TO THE GRAND JURY.  THESE
ATTEMPTS AT CONCEALMENT WERE, HOWEVER, IN VAIN.  THE TAXPAYERS AND SOME
OF HALPERIN'S ASSOCIATES REVEALED THE ENTIRE SCHEME, AND PETITIONERS'
INDICTMENT AND CONVICTION FOLLOWED.  (FN7) 

THE FIRST QUESTION BEFORE US IS WHETHER THE PROSECUTION OF THESE
PETITIONERS ON COUNT 1 OF THE INDICTMENT WAS BARRED BY THE APPLICABLE
THREE-YEAR STATUTE OF LIMITATIONS.  (FN8) 

THE INDICTMENT IN THESE CASES WAS RETURNED ON OCTOBER 25, 1954.  IT
WAS THEREFORE INCUMBENT ON THE GOVERNMENT TO PROVE THAT THE CONSPIRACY,
AS CONTEMPLATED IN THE AGREEMENT AS FINALLY FORMULATED, WAS STILL IN
EXISTENCE ON OCTOBER 25, 1951, AND THAT AT LEAST ONE OVERT ACT IN
FURTHERANCE OF THE CONSPIRACY WAS PERFORMED AFTER THAT DATE.  (FN9)
FOR WHERE SUBSTANTIATION OF A CONSPIRACY CHARGE REQUIRES PROOF OF AN
OVERT ACT, IT MUST BE SHOWN BOTH THAT THE CONSPIRACY STILL SUBSISTED
WITHIN THE THREE YEARS PRIOR TO THE RETURN OF THE INDICTMENT, AND THAT
AT LEAST ONE OVERT ACT IN FURTHERANCE OF THE CONSPIRATORIAL AGREEMENT
WAS PERFORMED WITHIN THAT PERIOD.  HENCE, IN BOTH OF THESE ASPECTS, THE
CRUCIAL QUESTION IN DETERMINING WHETHER THE STATUTE OF LIMITATIONS HAS
RUN IS THE SCOPE OF THE CONSPIRATORIAL AGREEMENT, FOR IT IS THAT WHICH
DETERMINES BOTH THE DURATION OF THE CONSPIRACY, AND WHETHER THE ACT
RELIED ON AS AN OVERT ACT MAY PROPERLY BE REGARDED AS IN FURTHERANCE OF
THE CONSPIRACY.  (FN10) 

PETITIONERS, IN CONTENDING THAT THIS PROSECUTION WAS BARRED BY
LIMITATIONS, STATE THAT THE OBJECT OF THE CONSPIRATORIAL AGREEMENT WAS
A NARROW ONE:  TO OBTAIN "NO PROSECUTION" RULINGS IN THE TWO TAX
CASES.  WHEN THESE RULINGS WERE OBTAINED, IN OCTOBER 1948 IN THE CASE
OF GOTHAM BEEF, AND IN JANUARY 1949 IN THE CASE OF PATULLO MODES, THE
CRIMINAL OBJECT OF THE CONSPIRACY, PETITIONERS SAY, WAS ATTAINED AND
THE CONSPIRATORS' FUNCTION ENDED.  THEY ARGUE, THEREFORE, THAT THE
STATUTE OF LIMITATIONS STARTED RUNNING NO LATER THAN JANUARY 1949, AND
THAT THE PROSECUTION WAS THEREFORE BARRED BY 1954, WHEN THE INDICTMENT
WAS RETURNED.  (FN11) 

THE GOVERNMENT COUNTERS WITH TWO PRINCIPAL CONTENTIONS:  FIRST, IT
URGES THAT EVEN IF THE MAIN OBJECT OF THE CONSPIRACY WAS TO OBTAIN
DECISIONS FROM THE BUREAU OF INTERNAL REVENUE NOT TO INSTITUTE CRIMINAL
TAX PROSECUTIONS - DECISIONS OBTAINED IN 1948 AND 1949 - THE INDICTMENT
ALLEGED, (FN12) AND THE PROOFS SHOWED, THAT THE CONSPIRACY ALSO
INCLUDED AS A SUBSIDIARY ELEMENT AN AGREEMENT TO CONCEAL THE CONSPIRACY
TO "FIX" THESE TAX CASES, TO THE END THAT THE CONSPIRATORS WOULD ESCAPE
DETECTION AND PUNISHMENT FOR THEIR CRIME.  SAYS THE GOVERNMENT, "FROM
THE VERY NATURE OF THE CONSPIRACY  ...  THERE HAD TO BE, AND WAS, FROM
THE OUTSET A CONSCIOUS, DELIBERATE, AGREEMENT TO CONCEAL  ...  EACH AND
EVERY ASPECT OF THE CONSPIRACY  ...  ."  IT IS THEN ARGUED THAT SINCE
THE ALLEGED CONSPIRACY TO CONCEAL CLEARLY CONTINUED LONG AFTER THE MAIN
CRIMINAL PURPOSE OF THE CONSPIRACY WAS ACCOMPLISHED, AND SINCE OVERT
ACTS IN FURTHERANCE OF THE AGREEMENT TO CONCEAL WERE PERFORMED WELL
WITHIN THE INDICTMENT PERIOD, THE PROSECUTION WAS TIMELY. 

SECOND, AND ALTERNATIVELY, THE GOVERNMENT CONTENDS THAT THE CENTRAL
AIM OF THE CONSPIRACY WAS TO OBTAIN FOR THESE TAXPAYERS, NOT MERELY A
"NO PROSECUTION" RULING, BUT ABSOLUTE IMMUNITY FROM TAX PROSECUTION; IN
OTHER WORDS, THAT THE OBJECTIVES OF THE CONSPIRACY WERE NOT ATTAINED
UNTIL 1952, WHEN THE STATUTE OF LIMITATIONS RAN ON THE TAX CASES WHICH
THESE PETITIONERS UNDERTOOK TO "FIX."  THE ARGUMENT THEN IS THAT SINCE
THE CONSPIRACY DID NOT END UNTIL 1952, AND SINCE THE 1949-1952 ACTS OF
CONCEALMENT MAY BE REGARDED AS, AT LEAST IN PART, IN FURTHERANCE OF THE
OBJECTIVE OF THE CONSPIRATORS TO IMMUNIZE THE TAXPAYERS FROM TAX
PROSECUTION, THE INDICTMENT WAS TIMELY. 

FOR REASONS HEREAFTER GIVEN, WE HOLD THAT THE GOVERNMENT'S FIRST
CONTENTION MUST BE REJECTED, AND THAT AS TO ITS SECOND, WHICH THE COURT
OF APPEALS ACCEPTED, A NEW TRIAL MUST BE ORDERED. 

                                         I. 

WE THINK THAT THE GOVERNMENT'S FIRST THEORY - THAT AN AGREEMENT TO
CONCEAL A CONSPIRACY CAN, ON FACTS SUCH AS THESE, BE DEEMED PART OF THE
CONSPIRACY AND CAN EXTEND ITS DURATION FOR THE PURPOSES OF THE STATUTE
OF LIMITATIONS - HAS ALREADY BEEN REJECTED BY THIS COURT IN KRULEWITCH
V. UNITED STATES, 336 U.S. 440, AND IN LUTWAK V. UNITED STATES, 344
U.S. 604. 

IN KRULEWITCH THE QUESTION BEFORE THE COURT WAS WHETHER CERTAIN
HEARSAY DECLARATIONS COULD BE INTRODUCED AGAINST ONE OF THE
CONSPIRATORS.  THE DECLARATIONS IN QUESTION WERE MADE BY ONE NAMED IN
THE INDICTMENT AS A CO-CONSPIRATOR AFTER THE MAIN OBJECT OF THE
CONSPIRACY (TRANSPORTING A WOMAN TO FLORIDA FOR IMMORAL PURPOSES) HAD
BEEN ACCOMPLISHED.  THE GOVERNMENT ARGUED THAT THE CONSPIRACY WAS NOT
ENDED, HOWEVER, SINCE IT INCLUDED AN IMPLIED SUBSIDIARY CONSPIRACY TO
CONCEAL THE CRIME AFTER ITS COMMISSION, AND THAT THE DECLARATIONS WERE
THEREFORE STILL IN FURTHERANCE OF THE CONSPIRACY AND BINDING ON CO
CONSPIRATORS.  THIS COURT REJECTED THE GOVERNMENT'S ARGUMENT.  IT THEN
STATED: 

"CONSPIRATORS ABOUT TO COMMIT CRIMES ALWAYS EXPRESSLY OR IMPLICITLY
AGREE TO COLLABORATE WITH EACH OTHER TO CONCEAL FACTS IN ORDER TO
PREVENT DETECTION, CONVICTION AND PUNISHMENT.  THUS THE GOVERNMENT'S
ARGUMENT IS THAT EVEN AFTER THE CENTRAL CRIMINAL OBJECTIVES OF A
CONSPIRACY HAVE SUCCEEDED OR FAILED, AN IMPLICIT SUBSIDIARY PHASE OF
THE CONSPIRACY ALWAYS SURVIVES, THE PHASE WHICH HAS CONCEALMENT AS ITS
SOLE OBJECTIVE. 

"WE CANNOT ACCEPT THE GOVERNMENT'S CONTENTION  ...  .  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."  (FN13) 

MR. JUSTICE JACKSON, CONCURRING, ADDED: 

"I SUPPOSE NO PERSON PLANNING A CRIME WOULD ACCEPT AS A COLLABORATOR
ONE ON WHOM HE THOUGHT HE COULD NOT RELY FOR HELP IF HE WERE CAUGHT,
BUT I DOUBT THAT THIS FACT WARRANTS AN INFERENCE OF CONSPIRACY FOR THAT
PURPOSE  ...  . 

"IT IS DIFFICULT TO SEE ANY LOGICAL LIMIT TO THE 'IMPLIED
CONSPIRACY,' EITHER AS TO DURATION OR MEANS  ...  .  ON THE THEORY THAT
THE LAW WILL IMPUTE TO THE CONFEDERATES A CONTINUING CONSPIRACY TO
DEFEAT JUSTICE, ONE CONCEIVABLY COULD BE BOUND BY ANOTHER'S
UNAUTHORIZED AND UNKNOWN COMMISSION OF PERJURY, BRIBERY OF A JUROR OR
WITNESS, ETC.  ...  . 

"MOREOVER, THE ASSUMPTION OF AN INDEFINITELY CONTINUING OFFENSE WOULD
RESULT IN AN INDETERMINATE EXTENSION OF THE STATUTE OF LIMITATIONS.  IF
THE LAW IMPLIES AN AGREEMENT TO COOPERATE IN DEFEATING PROSECUTION, IT
MUST IMPLY THAT IT CONTINUES AS LONG AS PROSECUTION IS A POSSIBILITY,
AND PROSECUTION IS A POSSIBILITY AS LONG AS THE CONSPIRACY TO DEFEAT IT
IS IMPLIED TO CONTINUE."  (FN14)

THE KRULEWITCH CASE WAS REAFFIRMED IN LUTWAK V. UNITED STATES, SUPRA.
HERE AGAIN THE QUESTION WAS THE ADMISSIBILITY OF HEARSAY DECLARATIONS
OF CO-CONSPIRATORS AFTER THE MAIN PURPOSE OF THE CONSPIRACY HAD BEEN
ACCOMPLISHED; AGAIN THE GOVERNMENT ATTEMPTED TO EXTEND THE LIFE OF THE
CONSPIRACY BY AN ALLEGED SUBSIDIARY CONSPIRACY TO CONCEAL.  ALTHOUGH IN
LUTWAK, UNLIKE IN KRULEWITCH, THE EXISTENCE OF A SUBSIDIARY CONSPIRACY
TO CONCEAL WAS CHARGED IN THE INDICTMENT, THE COURT AGAIN REJECTED THE
GOVERNMENT'S THEORY, HOLDING THAT NO SUCH AGREEMENT TO CONCEAL HAD BEEN
PROVED OR COULD BE IMPLIED. 

THE GOVERNMENT URGES US TO DISTINGUISH KRULEWITCH AND LUTWAK ON THE
GROUND THAT IN THOSE CASES THE ATTEMPT WAS TO IMPLY A CONSPIRACY TO
CONCEAL FROM THE MERE FACT THAT THE MAIN CONSPIRACY WAS KEPT SECRET AND
THAT OVERT ACTS OF CONCEALMENT OCCURRED.  IN CONTRAST, SAYS THE
GOVERNMENT, HERE THERE WAS AN ACTUAL AGREEMENT TO CONCEAL THE
CONSPIRATORS, WHICH WAS CHARGED AND PROVED TO BE AN EXPRESS PART OF THE
INITIAL CONSPIRACY ITSELF. 

WE ARE UNABLE TO AGREE WITH THE GOVERNMENT THAT, ON THIS RECORD, THE
CASES BEFORE US CAN BE DISTINGUISHED ON SUCH A BASIS. 

THE CRUCIAL TEACHING OF KRULEWITCH AND LUTWAK IS THAT AFTER THE
CENTRAL CRIMINAL PURPOSES OF A CONSPIRACY HAVE BEEN ATTAINED, A
SUBSIDIARY CONSPIRACY TO CONCEAL MAY NOT BE IMPLIED FROM CIRCUMSTANTIAL
EVIDENCE SHOWING MERELY THAT THE CONSPIRACY WAS KEPT A SECRET AND THAT
THE CONSPIRATORS TOOK CARE TO COVER UP THEIR CRIME IN ORDER TO ESCAPE
DETECTION AND PUNISHMENT.  AS WAS THERE STATED, ALLOWING SUCH A
CONSPIRACY TO CONCEAL TO BE INFERRED OR IMPLIED FROM MERE OVERT ACTS OF
CONCEALMENT WOULD RESULT IN A GREAT WIDENING OF THE SCOPE OF CONSPIRACY
PROSECUTIONS, SINCE IT WOULD EXTEND THE LIFE OF A CONSPIRACY
INDEFINITELY.  ACTS OF COVERING UP, EVEN THOUGH DONE IN THE CONTEXT OF
A MUTUALLY UNDERSTOOD NEED FOR SECRECY, CANNOT THEMSELVES CONSTITUTE
PROOF THAT CONCEALMENT OF THE CRIME AFTER ITS COMMISSION WAS PART OF
THE INITIAL AGREEMENT AMONG THE CONSPIRATORS.  FOR EVERY CONSPIRACY IS
BY ITS VERY NATURE SECRET; A CASE CAN HARDLY BE SUPPOSED WHERE MEN
CONCERT TOGETHER FOR CRIME AND ADVERTISE THEIR PURPOSE TO THE WORLD. 
AND AGAIN, EVERY CONSPIRACY WILL INEVITABLY BE FOLLOWED BY ACTIONS
TAKEN TO COVER THE CONSPIRATORS' TRACES.  SANCTIONING THE GOVERNMENT'S
THEORY WOULD FOR ALL PRACTICAL PURPOSES WIPE OUT THE STATUTE OF
LIMITATIONS IN CONSPIRACY CASES, AS WELL AS EXTEND INDEFINITELY THE
TIME WITHIN WHICH HEARSAY DECLARATIONS WILL BIND CO-CONSPIRATORS. 

A READING OF THE RECORD BEFORE US REVEALS THAT ON THE FACTS OF THIS
CASE THE DISTINCTION BETWEEN "ACTUAL" AND "IMPLIED" CONSPIRACIES TO
CONCEAL, AS URGED UPON US BY THE GOVERNMENT, IS NO MORE THAN A VERBAL
TOUR DE FORCE.  TRUE, IN BOTH KRULEWITCH AND LUTWAK THERE IS LANGUAGE
IN THE OPINIONS STRESSING THE FACT THAT ONLY AN IMPLIED AGREEMENT TO
CONCEAL WAS RELIED ON.  (FN15)  YET WHEN WE LOOK TO THE FACTS OF THE
PRESENT CASES, WE SEE THAT THE EVIDENCE FROM WHICH THE GOVERNMENT HERE
ASKS US TO DEDUCE AN "ACTUAL" AGREEMENT TO CONCEAL REVEALS NOTHING
BEYOND THAT ADDUCED IN PRIOR CASES.  WHAT IS THIS EVIDENCE?  FIRST, WE
HAVE THE FACT THAT FROM THE BEGINNING THE CONSPIRATORS INSISTED ON
SECRECY.  THUS THE IDENTITIES OF GRUNEWALD AND BOLICH WERE SEDULOUSLY
KEPT FROM THE TAXPAYERS; CAREFUL STEPS WERE TAKEN TO HIDE THE
CONSPIRACY FROM AN INDEPENDENT LAW FIRM WHICH WAS ALSO WORKING ON
PATULLO'S TAX PROBLEMS; AND THE TAXPAYERS WERE TOLD TO MAKE SURE THAT
THEIR BOOKS DID NOT REFLECT THE LARGE CASH PAYMENTS MADE TO GRUNEWALD. 
SECONDLY, AFTER THE "NO PROSECUTION" RULINGS WERE OBTAINED, WE HAVE
FACTS SHOWING THAT THIS SECRECY WAS STILL MAINTAINED.  THUS, A
DELIBERATE ATTEMPT WAS MADE TO MAKE THE ABOVE-MENTIONED INDEPENDENT LAW
FIRM BELIEVE THAT IT WAS ITS (QUITE LEGITIMATE) EFFORTS WHICH PRODUCED
THE SUCCESSFUL RULING.  FINALLY, WE HAVE THE FACT THAT GREAT EFFORTS
WERE MADE TO CONCEAL THE CONSPIRACY WHEN THE DANGER OF EXPOSURE
APPEARED.  FOR EXAMPLE, BOLICH GOT RID OF CERTAIN RECORDS SHOWING THAT
HE HAD USED GRUNEWALD'S HOTEL SUITE IN WASHINGTON; PATULLO'S ACCOUNTANT
WAS PERSUADED TO LIE TO THE GRAND JURY CONCERNING A CHECK MADE OUT TO
AN ASSOCIATE OF THE CONSPIRATORS; GRUNEWALD ATTEMPTED TO PERSUADE HIS
SECRETARY NOT TO TALK TO THE GRAND JURY; AND THE TAXPAYERS WERE
REPEATEDLY TOLD BY HALPERIN AND HIS ASSOCIATES TO KEEP QUIET. 

WE FIND IN ALL THIS NOTHING MORE THAN WHAT WAS INVOLVED IN
KRULEWITCH, THAT IS, (1) A CRIMINAL CONSPIRACY WHICH IS CARRIED OUT IN
SECRECY; (2) A CONTINUATION OF THE SECRECY AFTER THE ACCOMPLISHMENT OF
THE CRIME; AND (3) DESPERATE ATTEMPTS TO COVER UP AFTER THE CRIME
BEGINS TO COME TO LIGHT; AND SO WE CANNOT AGREE THAT THIS CASE DOES NOT
FALL WITHIN THE BAN OF THOSE PRIOR OPINIONS. 

IN EFFECT, THE DIFFERENTIATION PRESSED UPON US BY THE GOVERNMENT IS
ONE OF WORDS RATHER THAN OF SUBSTANCE.  IN KRULEWITCH IT WAS URGED THAT
A CONTINUING AGREEMENT TO CONCEAL SHOULD BE IMPLIED OUT OF THE MERE
FACT OF CONSPIRACY, AND THAT ACTS OF CONCEALMENT SHOULD BE TAKEN AS
OVERT ACTS IN FURTHERANCE OF THAT IMPLIED AGREEMENT TO CONCEAL.  TODAY
THE GOVERNMENT MERELY REARRANGES THE ARGUMENT.  IT STATES THAT THE VERY
SAME ACTS OF CONCEALMENT SHOULD BE USED AS CIRCUMSTANTIAL EVIDENCE FROM
WHICH IT CAN BE INFERRED THAT THERE WAS FROM THE BEGINNING AN "ACTUAL"
AGREEMENT TO CONCEAL.  AS WE SEE IT, THE TWO ARGUMENTS AMOUNT TO THE
SAME THING:  A CONSPIRACY TO CONCEAL IS BEING IMPLIED FROM ELEMENTS
WHICH WILL BE PRESENT IN VIRTUALLY EVERY CONSPIRACY CASE, THAT IS,
SECRECY PLUS OVERT ACTS OF CONCEALMENT.  (FN16)  THERE IS NOT A SHRED
OF DIRECT EVIDENCE IN THIS RECORD TO SHOW ANYTHING LIKE AN EXPRESS
ORIGINAL AGREEMENT AMONG THE CONSPIRATORS TO CONTINUE TO ACT IN CONCERT
IN ORDER TO COVER UP, FOR THEIR OWN SELF-PROTECTION, TRACES OF THE
CRIME AFTER ITS COMMISSION. 

PRIOR CASES IN THIS COURT HAVE REPEATEDLY WARNED THAT WE WILL VIEW
WITH DISFAVOR ATTEMPTS TO BROADEN THE ALREADY PERVASIVE AND WIDE
SWEEPING NETS OF CONSPIRACY PROSECUTIONS.  (FN17)  THE IMPORTANT
CONSIDERATIONS OF POLICY BEHIND SUCH WARNINGS NEED NOT BE AGAIN
DETAILED.  SEE JACKSON, J., CONCURRING IN KRULEWITCH V. UNITED STATES,
SUPRA.  IT IS THESE CONSIDERATIONS OF POLICY WHICH GOVERN OUR HOLDING
TODAY.  AS THIS CASE WAS TRIED, WE HAVE BEFORE US A TYPICAL EXAMPLE OF
A SITUATION WHERE THE GOVERNMENT, FACED BY THE BAR OF THE THREE-YEAR
STATUTE, IS ATTEMPTING TO OPEN THE VERY FLOODGATES AGAINST WHICH
KRULEWITCH WARNED.  WE CANNOT ACCEDE TO THE PROPOSITION THAT THE
DURATION OF A CONSPIRACY CAN BE INDEFINITELY LENGTHENED MERELY BECAUSE
THE CONSPIRACY IS KEPT A SECRET, AND MERELY BECAUSE THE CONSPIRATORS
TAKE STEPS TO BURY THEIR TRACES, IN ORDER TO AVOID DETECTION AND
PUNISHMENT AFTER THE CENTRAL CRIMINAL PURPOSE HAS BEEN ACCOMPLISHED. 

BY NO MEANS DOES THIS MEAN THAT ACTS OF CONCEALMENT CAN NEVER HAVE
SIGNIFICANCE IN FURTHERING A CRIMINAL CONSPIRACY.  BUT A VITAL
DISTINCTION MUST BE MADE BETWEEN ACTS OF CONCEALMENT DONE IN
FURTHERANCE OF THE MAIN CRIMINAL OBJECTIVES OF THE CONSPIRACY, AND ACTS
OF CONCEALMENT DONE AFTER THESE CENTRAL OBJECTIVES HAVE BEEN ATTAINED,
FOR THE PURPOSE ONLY OF COVERING UP AFTER THE CRIME.  THUS THE
GOVERNMENT ARGUES IN ITS BRIEF THAT "IN THE CRIME OF KIDNAPPING, THE
ACTS OF CONSPIRATORS IN HIDING WHILE WAITING FOR RANSOM WOULD CLEARLY
BE PLANNED ACTS OF CONCEALMENT WHICH WOULD BE IN AID OF THE CONSPIRACY
TO KIDNAP.  SO HERE, THERE CAN BE NO DOUBT THAT  ... ALL ACTS OF
CONCEALMENT, WHETHER TO HIDE THE IDENTITY OF THE CONSPIRATORS OR THE
ACTION THERETOFORE TAKEN, WERE UNQUESTIONABLY IN FURTHERANCE OF THE
INITIAL CONSPIRACY  ...  ."  WE DO NOT THINK THE ANALOGY IS VALID. 
KIDNAPERS IN HIDING, WAITING FOR RANSOM, COMMIT ACTS OF CONCEALMENT IN
FURTHERANCE OF THE OBJECTIVES OF THE CONSPIRACY ITSELF, JUST AS
REPAINTING A STOLEN CAR WOULD BE IN FURTHERANCE OF A CONSPIRACY TO
STEAL; IN BOTH CASES THE SUCCESSFUL ACCOMPLISHMENT OF THE CRIME
NECESSITATES CONCEALMENT.  (FN18)  MORE CLOSELY ANALOGOUS TO OUR CASE
WOULD BE CONSPIRING KIDNAPERS WHO COVER THEIR TRACES AFTER THE MAIN
CONSPIRACY IS FINALLY ENDED - I.E., AFTER THEY HAVE ABANDONED THE
KIDNAPED PERSON AND THEN TAKE CARE TO ESCAPE DETECTION.  IN THE LATTER
CASE, AS HERE, THE ACTS OF COVERING UP CAN BY THEMSELVES INDICATE
NOTHING MORE THAN THAT THE CONSPIRATORS DO NOT WISH TO BE APPREHENDED -
A CONCOMITANT, CERTAINLY, OF EVERY CRIME SINCE CAIN ATTEMPTED TO
CONCEAL THE MURDER OF ABEL FROM THE LORD. 

WE HOLD, THEREFORE, THAT, CONSIDERING THE MAIN OBJECTIVE OF THE
CONSPIRACY TO HAVE BEEN THE OBTAINING OF "NO PROSECUTION" RULINGS,
PROSECUTION WAS BARRED BY THE THREE-YEAR STATUTE OF LIMITATIONS, SINCE
NO AGREEMENT TO CONCEAL THE CONSPIRACY AFTER ITS ACCOMPLISHMENT WAS
SHOWN OR CAN BE IMPLIED ON THE EVIDENCE BEFORE US TO HAVE BEEN PART OF
THE CONSPIRATORIAL AGREEMENT. 

                                    II. 

IN VIEW OF HOW THE CASE WAS SUBMITTED TO THE JURY, WE ARE ALSO UNABLE
TO ACCEPT THE GOVERNMENT'S SECOND THEORY FOR AVOIDING THE STATUTE OF
LIMITATIONS.  THIS THEORY IS (1) THAT THE MAIN OBJECTIVE OF THE
CONSPIRACY WAS NOT MERELY TO OBTAIN THE INITIAL "NO PROSECUTION"
RULINGS IN 1948 AND 1949, BUT TO OBTAIN FINAL IMMUNITY FOR GOTHAM AND
PATULLO FROM CRIMINAL TAX PROSECUTION; (2) THAT SUCH IMMUNITY WAS NOT
OBTAINED UNTIL 1952, WHEN THE STATUTE OF LIMITATIONS HAD RUN ON THE TAX
EVASION CASES WHICH THE PETITIONERS CONSPIRED TO FIX; (FN19) (3) THAT
THE CONSPIRACY THEREFORE DID NOT END UNTIL 1952, WHEN THIS OBJECT WAS
ATTAINED; (4) THAT THE ACTS OF CONCEALMENT WITHIN THE INDICTMENT PERIOD
WERE OVERT ACTS IN FURTHERANCE OF THIS CONSPIRACY; AND (5) THAT THE
PROSECUTION WAS THUS TIMELY.  (FN20)  IN SHORT, THE CONTENTION IS THAT
THE AGREEMENT TO CONCEAL WAS TO PROTECT THE TAXPAYERS RATHER THAN THE
CONSPIRATORS, AND AS SUCH WAS PART OF THE MAIN CONSPIRACY RATHER THAN A
SUBSIDIARY APPENDAGE TO IT, AS UNDER THE GOVERNMENT'S FIRST THEORY. 

THE COURT OF APPEALS ACCEPTED THIS THEORY OF THE CASE IN AFFIRMING
THESE CONVICTIONS.  IT STATED: 

"WHAT THE FIXERS HAD TO SELL WAS FREEDOM FROM CRIMINAL PROSECUTION
FOR TAX FRAUDS.  WHAT THE TAXPAYERS BARGAINED FOR WAS PROTECTION FROM A
TAX EVASION PROSECUTION. 

     *         *    *         *         * 

"THIS CONSPIRACY IS WHOLLY UNLIKE THE ORDINARY ILLEGAL SCHEME IN THAT
THE JURY MAY WELL HAVE INFERRED THAT THE OFFICIAL ANNOUNCEMENT THAT
THERE WOULD BE NO CRIMINAL PROSECUTION OF THE TAXPAYERS WAS MERELY THE
DELIVERY OF A SUBSTANTIAL INSTALLMENT OF WHAT APPELLANTS AGREED TO
DELIVER FOR THE HUGE SUMS PAID.  THE SIX-YEAR STATUTE OF LIMITATIONS
...  DID NOT RUN IN FAVOR OF THE TAXPAYERS UNTIL SOME TIME AFTER THE
COMMISSION OF THE OVERT ACTS RELIED UPON.  IN THE INTERVAL THERE WAS NO
ASSURANCE, OTHER THAN CONTINUING EFFORTS BY GRUNEWALD, BOLICH AND THE
OTHERS, THAT THE WHOLE NEFARIOUS BUSINESS MIGHT NOT BE BROUGHT TO
LIGHT, FOLLOWED BY THE REVOCATION OF THE DECISION NOT TO CRIMINALLY
PROSECUTE THE TAXPAYERS.  THIS IS A SIGNIFICANT ELEMENT IN THE PROOFS
ADDUCED BY THE GOVERNMENT, AS CONCEALMENT OF THE CONSPIRATORIAL ACTS
WAS NECESSARY NOT ONLY TO PROTECT THE CONSPIRATORS FROM A CONSPIRACY
PROSECUTION BUT ALSO TO PROTECT THE TAXPAYERS FROM A TAX EVASION
PROSECUTION."  233 F.2D, AT 564-565. 

WE FIND THE LEGAL THEORY OF THE COURT OF APPEALS UNEXCEPTIONABLE.  IF
THE CENTRAL OBJECTIVE OF THE CONSPIRACY WAS TO PROTECT THE TAXPAYERS
FROM TAX-EVASION PROSECUTIONS, ON WHICH THE STATUTE OF LIMITATIONS DID
NOT RUN UNTIL 1952, AND IF THE 1948 AND 1949 "NO PROSECUTION" RULINGS
WERE BUT AN "INSTALLMENT" OF WHAT THE CONSPIRATORS AIMED TO ACCOMPLISH,
THEN IT IS CLEAR THAT THE STATUTE OF LIMITATIONS ON THE CONSPIRACY DID
NOT BEGIN TO RUN UNTIL 1952, WITHIN THREE YEARS OF THE INDICTMENT. 
(FN21) 

FURTHERMORE, WE AGREE WITH THE COURT OF APPEALS THAT THERE IS
EVIDENCE IN THIS RECORD WHICH WOULD WARRANT SUBMISSION OF THE CASE TO
THE JURY ON THE THEORY THAT THE CENTRAL OBJECT OF THE CONSPIRACY WAS
NOT ATTAINED IN 1948 AND 1949, BUT RATHER WAS TO IMMUNIZE THE TAXPAYERS
COMPLETELY FROM PROSECUTION FOR TAX EVASION AND THUS CONTINUED INTO
1952.  THE MANY OVERT ACTS OF CONCEALMENT OCCURRING AFTER 1949 COULD
EASILY HAVE BEEN MOTIVATED AT LEAST IN PART BY THE PURPOSE OF THE
CONSPIRATORS TO DELIVER THE REMAINING "INSTALLMENTS" OWING UNDER THE
BARGAIN - TO WIT, THE SAFEGUARDING OF THE CONTINUED VITALITY OF THE "NO
PROSECUTION" RULINGS.  (FN22)  FURTHERMORE, THERE IS EVIDENCE SHOWING
THAT FROM THE BEGINNING THE AIM OF THE SCHEME WAS NOT RESTRICTED TO THE
MERELY PROVISIONAL AND NECESSARILY PRECARIOUS "FIXING" OF THE
TAXPAYERS' TROUBLES WHICH WAS ACHIEVED IN 1948 AND 1949.  (FN23)  A
JURY MIGHT THEREFORE FAIRLY INFER THAT IT WAS PART OF THE
CONSPIRATORIAL AGREEMENT THAT GRUNEWALD AND BOLICH WOULD MAKE
CONTINUING EFFORTS TO SAFEGUARD THE FRUITS OF THE PARTIAL VICTORIES WON
IN 1948 AND 1949 BY TRYING TO IMMUNIZE THE "NO PROSECUTION" RULINGS
FROM CHANGE.  IN OTHER WORDS, WE THINK A JURY COULD INFER FROM THIS
EVIDENCE THAT THE CONSPIRATORS WERE PREPARED AND HAD AGREED TO ENGAGE
IN FURTHER FRAUDS AND BRIBERY IF NECESSARY IN ORDER TO MAINTAIN IN
EFFECT THE TENTATIVE RULINGS OBTAINED IN 1948 AND 1949.  (FN24) 

IF, THEREFORE, THE JURY WOULD HAVE FOUND THAT THE AIM OF THE
CONSPIRATORIAL AGREEMENT WAS TO PROTECT THE TAXPAYERS FROM TAX
PROSECUTION, AND THAT THE OVERT ACTS OCCURRING IN THE INDICTMENT PERIOD
WERE IN FURTHERANCE OF THAT AIM, WE WOULD AFFIRM.  WE DO NOT THINK,
HOWEVER, THAT WE MAY SAFELY ASSUME THAT THE JURY SO FOUND, FOR WE
CANNOT AGREE WITH THE COURT OF APPEALS' HOLDING THAT THIS THEORY OF THE
CASE WAS ADEQUATELY SUBMITTED TO THE JURY. 

THE TRIAL JUDGE'S CHARGE ON THE PROBLEM OF THE SCOPE AND DURATION OF
THE CONSPIRACY WAS AS FOLLOWS: 

"YOU WILL RECALL THAT THE INDICTMENT STATES, AMONG OTHER THINGS, THAT
IT WAS PART OF THE CONSPIRACY THAT THE DEFENDANTS AND CO-CONSPIRATORS
WOULD MAKE 'CONTINUING EFFORTS TO AVOID DETECTION AND PROSECUTION BY
ANY GOVERNMENTAL BODY, EXECUTIVE, LEGISLATIVE, AND JUDICIAL OF TAX
FRAUDS PERPETRATED BY THE DEFENDANTS AND CO-CONSPIRATORS THROUGH THE
USE OF ANY MEANS WHATSOEVER INCLUDING BUT NOT LIMITED TO  ...  THE
INFLUENCING, INTIMIDATING, AND IMPEDING OF PROSPECTIVE WITNESSES TO
REFRAIN FROM DISCLOSING THE TRUE FACTS.'  IN OTHER WORDS, THE
INDICTMENT ALLEGES THAT THE CONSPIRACY COMPREHENDED WITHIN IT A
CONSPIRACY TO CONCEAL THE TRUE FACTS FROM INVESTIGATION, SHOULD
INVESTIGATION THEREAFTER EVENTUATE.  THIS IS AN IMPORTANT ELEMENT OF
THE FIRST COUNT OF THE INDICTMENT WHICH YOU MUST TAKE INTO
CONSIDERATION, INASMUCH AS THE STATUTE OF LIMITATIONS ON THE CHARGE OF
CRIMINAL CONSPIRACY IS THREE YEARS AND UNLESS THE CONSPIRACY WAS
CONTINUING TO A PERIOD WITHIN THREE YEARS PRIOR TO THE DATE OF THE
INDICTMENT, OCTOBER 25, 1954, AND SOME OVERT ACT WAS PERFORMED WITHIN
THAT THREE-YEAR PERIOD, THE CRIME, IF ANY, ALLEGED IN THE FIRST COUNT
OF THE INDICTMENT WOULD BE OUTLAWED.  IT IS THE CONTENTION OF THE
GOVERNMENT THAT THE CONSPIRACY DID NOT END WHEN THE TAXPAYERS WERE
ADVISED THAT THERE WOULD BE NO CRIMINAL PROSECUTION RECOMMENDED BY THE
SPECIAL AGENT'S OFFICE, BUT THAT AN INTEGRAL PART OF THE ENTIRE
CONSPIRACY WAS AN AGREEMENT TO CONCEAL THE ACTS OF THE CONSPIRATORS AND
THAT WHEN THEREAFTER AN INVESTIGATION WAS STARTED BY CONGRESS AND BY
THE GRAND JURY IN THE EASTERN DISTRICT OF NEW YORK, THE CONSPIRATORS
PERFORMED OVERT ACTS IN PURSUANCE OF THE ORIGINAL CONSPIRACY DESIGNED
TO CONCEAL THE TRUE FACTS; AND THAT THESE ACTS OCCURRED WITHIN THREE
YEARS PRIOR TO THE DATE OF THE INDICTMENT.  ON THIS ISSUE, IT WILL BE
NECESSARY FOR YOU TO DETERMINE WHETHER, BEYOND A REASONABLE DOUBT, YOU
CAN CONCLUDE THAT THE CONSPIRACY WAS OF THE NATURE DESCRIBED IN THE
FIRST COUNT OF THE INDICTMENT AND COMPREHENDED AN AGREEMENT TO CONCEAL
AND WHETHER SOME OVERT ACT TOOK PLACE IN THE PERIOD OF THREE YEARS
PRIOR TO OCTOBER 25, 1954 TO CARRY OUT SUCH PURPOSE OF THE CONSPIRACY. 
    *         *         *         *         * 

"TO DETERMINE WHETHER CERTAIN OF THE ALLEGED OVERT ACTS WERE IN
FURTHERANCE OF THE OBJECT OF THE CONSPIRACY, YOU HAVE TO DETERMINE THE
DURATION OF CONSPIRACY,  DID IT END WHEN THE PATULLO MODES PEOPLE AND
THE GOTHAM BEEF PEOPLE RECEIVED AN ASSURANCE OF NO PROSECUTION FROM THE
BUREAU OF INTERNAL REVENUE, OR WAS A PART OF THE CONSPIRACY A
CONTINUING AGREEMENT TO CONCEAL THE ACTS DONE PURSUANT THERETO?  IN
DETERMINING WHETHER A PART OF THE CONSPIRACY WAS AN AGREEMENT TO
CONTINUE TO CONCEAL THE ILLEGAL ACTS AFTER THEIR CONSUMMATION, YOU MAY
NOT IMPLY THAT SUCH AN AGREEMENT WAS PART OF THE CONSPIRACY.  YOU WOULD
HAVE TO FIND FROM THE EVIDENCE OF THE ACTS AND DECLARATIONS OF THE CO
CONSPIRATORS THAT THERE WAS AN UNDERSTANDING OR AGREEMENT TO CONCEAL
THE CONSPIRACY.  IF YOU FIND THAT SUCH AN AGREEMENT OR UNDERSTANDING TO
CONCEAL THE CONSPIRACY WAS NOT A PART OF THE CONSPIRACY TO DEFRAUD THE
GOVERNMENT, BUT NO MORE THAN AN AFTERTHOUGHT BROUGHT TO THE SURFACE
WHEN THE CO-CONSPIRATORS WERE CONFRONTED WITH THE GRAND JURY AND KING
COMMITTEE INVESTIGATIONS, THEN YOU MUST FIND, AS A MATTER OF LAW, THAT
THE DEFENDANTS ARE NOT GUILTY OF THE CRIME CHARGED IN THE FIRST COUNT
OF THE INDICTMENT.  IF YOU FIND THAT THE EVIDENCE SHOWS, BEYOND A
REASONABLE DOUBT, THAT AS A PART OF A CONSPIRACY TO DEFRAUD THE
GOVERNMENT, THERE WAS AN AGREEMENT OR UNDERSTANDING TO CONCEAL THE
ILLEGAL ACTS AND THAT THIS TOO WAS AN OBJECTIVE OR PART OF THE
CONSPIRACY, THEN YOU MAY FIND THAT SUCH UNDERSTANDING WAS A PART OF THE
CONSPIRACY.  HOWEVER, YOU MUST ADDITIONALLY DETERMINE WHETHER THIS
OBJECTIVE OF THE CONSPIRACY WAS KNOWN TO THE DEFENDANTS.  IF THIS
OBJECTIVE WAS KNOWN ORIGINALLY BY ONLY PART OF THE CONSPIRATORS BUT
THEREAFTER DURING THE EXISTENCE OF THE CONSPIRACY, THE SCOPE OF THE
CONSPIRACY WAS EXTENDED SO AS TO INCLUDE SUCH AN AGREEMENT TO CONCEAL,
AND IF YOU FIND THAT SOME OF THE DEFENDANTS DID NOT KNOW OF THE
EXPANSION TO INCLUDE THE AGREEMENT TO CONCEAL, YOU MAY NOT IMPUTE TO
THEM THE KNOWLEDGE OF THEIR CO-CONSPIRATORS AND THEY COULD NOT BE FOUND
GUILTY OF THE CRIME CHARGED IN COUNT ONE." 

WE ARE CONSTRAINED TO AGREE WITH JUDGE FRANK THAT THIS CHARGE DID NOT
ADEQUATELY ENLIGHTEN THE JURY AS TO WHAT THEY WOULD HAVE TO FIND IN
ORDER TO CONCLUDE THAT THE CONSPIRACY WAS STILL ALIVE AFTER OCTOBER 25,
1951.  FOR THE CHARGE AS GIVEN FAILED COMPLETELY TO DISTINGUISH BETWEEN
CONCEALMENT IN ORDER TO ACHIEVE THE CENTRAL PURPOSE OF THE CONSPIRACY
(THAT IS, THE IMMUNIZATION OF THE TAXPAYERS FROM TAX-EVASION
PROSECUTION), AND CONCEALMENT INTENDED SOLELY TO COVER UP AN ALREADY
EXECUTED CRIME (THAT IS, THE OBTAINING OF THE "NO PROSECUTION"
RULINGS).  THE JURY WAS NEVER TOLD THAT THESE OVERT ACTS OF CONCEALMENT
COULD BE TAKEN AS FURTHERING THE CONSPIRACY ONLY IF THE BASIC CRIMINAL
AIM OF THE CONSPIRACY WAS NOT YET ATTAINED IN 1949.  ON THE CHARGE AS
GIVEN, THE JURY MIGHT EASILY HAVE CONCLUDED THAT THE PETITIONERS WERE
GUILTY EVEN THOUGH THEY FOUND MERELY (1) THAT THE CENTRAL AIM OF THE
CONSPIRACY WAS ACCOMPLISHED IN 1949, AND (2) THAT THE SUBSEQUENT ACTS
OF CONCEALMENT WERE MOTIVATED EXCLUSIVELY BY THE CONSPIRATORS' FEAR OF
A CONSPIRACY PROSECUTION.  AS FAR AS WE KNOW, THEREFORE, THE PRESENT
CONVICTIONS WERE BASED ON THE IMPERMISSIBLE THEORY DISCUSSED IN THE
FIRST PART OF THIS OPINION - NAMELY, THAT A SUBORDINATE AGREEMENT TO
CONCEAL THE CONSPIRACY CONTINUED AFTER THE CENTRAL AIM OF THE
CONSPIRACY HAD BEEN ACCOMPLISHED. 

FURTHERMORE, IF THE CONVICTIONS WERE BASED ON A FINDING THAT THE
OVERT ACTS OF CONCEALMENT WERE DONE WITH THE SINGLE INTENTION OF
PROTECTING THE CONSPIRATORS' OWN INTERESTS, THEN IT IS IRRELEVANT THAT
THESE ACTS IN FACT HAPPENED TO HAVE THE EFFECT ALSO OF PROTECTING THE
TAXPAYERS AGAINST REVOCATION OF THE "NO PROSECUTION" RULINGS.  FOR
OVERT ACTS IN A PROSECUTION SUCH AS THIS ONE ARE MEANINGFUL ONLY IF
THEY ARE WITHIN THE SCOPE OF THE CONSPIRATORIAL AGREEMENT.  IF THAT
AGREEMENT DID NOT, EXPRESSLY OR IMPLIEDLY, CONTEMPLATE THAT THE
CONSPIRACY WOULD CONTINUE IN ITS EFFORTS TO PROTECT THE TAXPAYERS IN
ORDER TO IMMUNIZE THEM FROM TAX PROSECUTION, THEN THE SCOPE OF THE
AGREEMENT CANNOT BE BROADENED RETROACTIVELY BY THE FACT THAT THE
CONSPIRATORS TOOK STEPS AFTER THE CONSPIRACY WHICH INCIDENTALLY HAD
THAT EFFECT. 

WE THUS FIND THAT THE JUDGE'S CHARGE LEFT IT OPEN FOR THE JURY TO
CONVICT EVEN THOUGH THEY FOUND THAT THE ACTS OF CONCEALMENT WERE
MOTIVATED PURELY BY THE PURPOSE OF THE CONSPIRATORS TO COVER UP THEIR
ALREADY ACCOMPLISHED CRIME.  AND THIS, WE THINK, WAS FATAL ERROR.  FOR
THE FACTS IN THIS RECORD ARE EQUIVOCAL.  THE JURY MIGHT EASILY HAVE
CONCLUDED THAT THE AIM OF THE CONSPIRACY WAS ACCOMPLISHED IN 1949, AND
THAT THE OVERT ACTS OF CONCEALMENT OCCURRING AFTER THAT DATE WERE DONE
PURSUANT TO THE ALLEGED CONSPIRACY TO HIDE THE CONSPIRATORS.  AS WE
HAVE SAID, A CONVICTION ON SUCH A THEORY COULD NOT BE SUSTAINED.  UNDER
SUCH CIRCUMSTANCES, THEREFORE, IT WAS ESSENTIAL FOR THE JUDGE TO CHARGE
CLEARLY AND UNEQUIVOCALLY THAT ON THESE FACTS THE JURY COULD NOT INFER
A CONTINUING CONSPIRACY TO CONCEAL THE CONSPIRACY, WHETHER ACTUAL OR
IMPLIED.  FURTHER, IT WAS INCUMBENT ON THE JUDGE TO CHARGE THAT IN
ORDER TO CONVICT THE JURY WOULD HAVE TO FIND THAT THE CENTRAL AIM OF
THE CONSPIRACY WAS TO IMMUNIZE THE TAXPAYERS FROM TAX PROSECUTION, THAT
THIS OBJECTIVE CONTINUED IN BEING THROUGH 1951, AND THAT THE OVERT ACTS
OF CONCEALMENT PROVED AT TRIAL WERE AT LEAST PARTLY CALCULATED TO
FURTHER THIS AIM. 

SINCE, UNDER THE JUDGE'S CHARGE, THE CONVICTION ON COUNT 1 MIGHT HAVE
RESTED ON AN IMPERMISSIBLE GROUND, WE CONCLUDE THAT THEY CANNOT STAND,
AND THE PETITIONERS MUST BE GIVEN A NEW TRIAL AS TO THIS COUNT. 

                                        III. 

WHAT WE HAVE HELD AS TO THE STATUTE OF LIMITATIONS DISPOSES OF THE
CONVICTION OF THE THREE PETITIONERS UNDER COUNT 1, BUT DOES NOT TOUCH
HALPERIN'S CONVICTION ON COUNTS 5, 6, AND 7 FOR VIOLATING 18 U.S.C.
SEC. 1503.  (FN25)  AS TO THOSE COUNTS, HALPERIN, WHO TOOK THE STAND IN
HIS OWN DEFENSE AT THE TRIAL, CONTENDS (A) THAT THE GOVERNMENT WAS
IMPROPERLY ALLOWED TO CROSS-EXAMINE HIM AS TO THE ASSERTION OF HIS
FIFTH AMENDMENT PRIVILEGE BEFORE A GRAND JURY INVESTIGATING THIS
CONSPIRACY, BEFORE WHICH HE HAD BEEN CALLED AS A WITNESS, (FN26) AND
(B) THAT THE EVIDENCE DID NOT JUSTIFY HIS CONVICTION ON THESE COUNTS. 
FOR THE REASONS GIVEN HEREAFTER WE THINK THAT THE FIRST CONTENTION IS
WELL TAKEN, BUT THAT THE SECOND ONE IS UNTENABLE. 

IN 1952 HALPERIN WAS SUBPOENAED BEFORE A BROOKLYN GRAND JURY WHICH
WAS INVESTIGATING CORRUPTION IN THE BUREAU OF INTERNAL REVENUE. 
TESTIMONY HAD ALREADY BEEN RECEIVED BY THE GRAND JURY FROM THE PATULLO
AND GOTHAM TAXPAYERS, WHICH LINKED HALPERIN WITH THE TAX-FIXING RING. 
HALPERIN WAS ASKED A SERIES OF QUESTIONS BEFORE THE GRAND JURY,
INCLUDING, AMONG OTHERS, SUCH QUESTIONS AS WHETHER HE KNEW MAX
STEINBERG (AN EMPLOYEE OF THE BUREAU OF INTERNAL REVENUE AND A CO
DEFENDANT IN THE CHARGE UNDER COUNT 1); WHETHER HE KNEW GRUNEWALD;
WHETHER HE HAD HELD AND DELIVERED ESCROW MONEY PAID TO GRUNEWALD BY
GOTHAM AFTER THE "NO PROSECUTION" RULING; AND WHETHER HE HAD PHONED
GRUNEWALD TO ARRANGE A MEETING BETWEEN ONE OF HIS OWN ASSOCIATES AND
BOLICH.  HALPERIN DECLINED TO ANSWER ANY OF THESE QUESTIONS, ON THE
GROUND THAT THE ANSWERS WOULD TEND TO INCRIMINATE HIM AND THAT THE
FIFTH AMENDMENT THEREFORE ENTITLED HIM NOT TO ANSWER.  HE REPEATEDLY
INSISTED BEFORE THE GRAND JURY THAT HE WAS WHOLLY INNOCENT, AND THAT HE
PLEADED HIS FIFTH AMENDMENT PRIVILEGE ONLY ON THE ADVICE OF COUNSEL
THAT ANSWERS TO THESE QUESTIONS MIGHT FURNISH EVIDENCE WHICH COULD BE
USED AGAINST HIM, PARTICULARLY WHEN HE WAS NOT REPRESENTED BY COUNSEL
AND COULD NOT CROSS-EXAMINE WITNESSES BEFORE THE GRAND JURY. 

WHEN THE GOVERNMENT CROSS-EXAMINED HALPERIN AT THE TRIAL SOME OF THE
QUESTIONS WHICH HE HAD BEEN ASKED BEFORE THE GRAND JURY WERE PUT TO
HIM.  (FN27)  HE ANSWERED EACH QUESTION IN A WAY CONSISTENT WITH
INNOCENCE.  THE GOVERNMENT WAS THEN ALLOWED, OVER OBJECTION, TO BRING
OUT IN CROSS-EXAMINATION THAT PETITIONER HAD PLEADED HIS PRIVILEGE
BEFORE THE GRAND JURY AS TO THESE VERY QUESTIONS.  LATER, IN HIS CHARGE
TO THE JURY, THE TRIAL JUDGE INFORMED THEM THAT PETITIONER'S FIFTH
AMENDMENT PLEA COULD BE TAKEN ONLY AS REFLECTING ON HIS CREDIBILITY,
AND THAT NO INFERENCE AS TO GUILT OR INNOCENCE COULD BE DRAWN THEREFROM
AS TO HALPERIN OR ANY CO-DEFENDANT.  (FN28) 

IN THUS ALLOWING THIS CROSS-EXAMINATION, THE DISTRICT COURT RELIED ON
RAFFEL V. UNITED STATES, 271 U.S. 494, WHERE THIS COURT HELD THAT A
DEFENDANT'S FAILURE TO TAKE THE STAND AT HIS FIRST TRIAL TO DENY
TESTIMONY AS TO AN INCRIMINATING ADMISSION COULD BE USED ON CROSS
EXAMINATION AT THE SECOND TRIAL, WHERE HE DID TAKE THE STAND, TO IMPUGN
THE CREDIBILITY OF HIS DENIAL OF THE SAME ADMISSION.  IN UPHOLDING THE
DISTRICT COURT HERE, THE COURT OF APPEALS LIKEWISE RELIED ON RAFFEL,
AND ALSO ON ONE OF ITS OWN EARLIER DECISIONS.  (FN29)  HALPERIN ATTACKS
THESE RULINGS ON THESE SPECIAL GROUNDS: (A) RAFFEL IS DISTINGUISHABLE
FROM THE PRESENT CASE; (B) IF RAFFEL PERMITTED THIS CROSS-EXAMINATION,
THEN THE TRIAL COURT ERRED IN REFUSING TO CHARGE, AS HALPERIN
REQUESTED, THAT "AN INNOCENT MAN MAY HONESTLY CLAIM THAT HIS ANSWERS
MAY TEND TO INCRIMINATE HIM"; (C) IN ANY CASE RAFFEL HAS IMPLIEDLY BEEN
OVERRULED BY JOHNSON V. UNITED STATES, 318 U.S. 189; AND (D)
COMPELLING HALPERIN TO TESTIFY BEFORE THE GRAND JURY, WHEN HE HAD
ALREADY BEEN MARKED AS A PUTATIVE DEFENDANT, VIOLATED HIS
CONSTITUTIONAL RIGHTS, SO THAT, BY ANALOGY TO THE RULE OF WEEKS V.
UNITED STATES, 232 U.S. 383, HIS CLAIM OF PRIVILEGE COULD IN NO EVENT
BE USED AGAINST HIM.  WE FIND THAT IN THE CIRCUMSTANCES PRESENTED HERE
RAFFEL IS NOT CONTROLLING, AND THAT THIS CROSS-EXAMINATION WAS NOT
PERMISSIBLE. 

IT IS, OF COURSE, AN ELEMENTARY RULE OF EVIDENCE THAT PRIOR
STATEMENTS MAY BE USED TO IMPEACH THE CREDIBILITY OF A CRIMINAL
DEFENDANT OR AN ORDINARY WITNESS.  BUT THIS CAN BE DONE ONLY IF THE
JUDGE IS SATISFIED THAT THE PRIOR STATEMENTS ARE IN FACT INCONSISTENT. 
3 WIGMORE, EVIDENCE, SEC. 1040.  AND SO THE THRESHOLD QUESTION HERE IS
SIMPLY WHETHER, IN THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT
ERRED IN HOLDING THAT HALPERIN'S PLEA OF THE FIFTH AMENDMENT PRIVILEGE
BEFORE THE GRAND JURY INVOLVED SUCH INCONSISTENCY WITH ANY OF HIS TRIAL
TESTIMONY AS TO PERMIT ITS USE AGAINST HIM FOR IMPEACHMENT PURPOSES. 
(FN30)  WE DO NOT THINK THAT RAFFEL IS PROPERLY TO BE READ EITHER AS
DISPENSING WITH THE NEED FOR SUCH PRELIMINARY SCRUTINY BY THE JUDGE, OR
AS ESTABLISHING AS A MATTER OF LAW THAT SUCH A PRIOR CLAIM OF PRIVILEGE
WITH REFERENCE TO A QUESTION LATER ANSWERED AT THE TRIAL IS ALWAYS TO
BE DEEMED TO BE A PRIOR INCONSISTENT STATEMENT, IRRESPECTIVE OF THE
CIRCUMSTANCES UNDER WHICH THE CLAIM OF PRIVILEGE WAS MADE.  THE ISSUE
DECIDED IN RAFFEL CAME TO THE COURT AS A CERTIFIED QUESTION IN QUITE AN
ABSTRACT FORM, (FN31) AND WAS REALLY CENTERED ON THE QUESTION WHETHER A
DEFENDANT WHO TAKES THE STAND ON A SECOND TRIAL CAN CONTINUE TO TAKE
ADVANTAGE OF THE PRIVILEGE ASSERTED AT THE FIRST TRIAL.  THIS COURT
HELD, IN EFFECT, THAT WHEN A CRIMINAL DEFENDANT TAKES THE STAND, HE
WAIVES HIS PRIVILEGE COMPLETELY AND BECOMES SUBJECT TO CROSS
EXAMINATION IMPEACHING HIS CREDIBILITY JUST LIKE ANY OTHER WITNESS:
"HIS WAIVER IS NOT PARTIAL; HAVING ONCE CAST ASIDE THE CLOAK OF
IMMUNITY, HE MAY NOT RESUME IT AT WILL, WHENEVER CROSS-EXAMINATION MAY
BE INCONVENIENT OR EMBARRASSING."  THE COURT, IN RAFFEL, DID NOT FOCUS
ON THE QUESTION WHETHER THE CROSS-EXAMINATION THERE INVOLVED WAS IN
FACT PROBATIVE IN IMPEACHING THE DEFENDANT'S CREDIBILITY.  IN OTHER
WORDS, WE MAY ASSUME THAT UNDER RAFFEL HALPERIN IN THIS CASE WAS
SUBJECT TO CROSS-EXAMINATION IMPEACHING HIS CREDIBILITY JUST LIKE ANY
OTHER WITNESS, AND THAT HIS FIFTH AMENDMENT PLEA BEFORE THE GRAND JURY
COULD NOT CARRY OVER ANY FORM OF IMMUNITY WHEN HE VOLUNTARILY TOOK THE
STAND AT THE TRIAL.  THIS DOES NOT, HOWEVER, SOLVE THE QUESTION WHETHER
IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE THE CROSS-EXAMINATION
SHOULD HAVE BEEN EXCLUDED BECAUSE ITS PROBATIVE VALUE ON THE ISSUE OF
HALPERIN'S CREDIBILITY WAS SO NEGLIGIBLE AS TO BE FAR OUTWEIGHED BY ITS
POSSIBLE IMPERMISSIBLE IMPACT ON THE JURY.  (FN32)  AS WE CONSIDER THAT
IN THE CIRCUMSTANCES OF THE PRESENT CASE, THE TRIAL COURT, IN THE
EXERCISE OF A SOUND DISCRETION, SHOULD HAVE REFUSED TO PERMIT THIS LINE
OF CROSS-EXAMINATION, WE ARE NOT FACED WITH THE NECESSITY OF DECIDING
WHETHER RAFFEL HAS BEEN STRIPPED OF VITALITY BY THE LATER JOHNSON CASE,
SUPRA, OR OF OTHERWISE RE-EXAMINING RAFFEL. 

WE NEED NOT TARRY LONG TO REITERATE OUR VIEW THAT, AS THE TWO COURTS
BELOW HELD, NO IMPLICATION OF GUILT COULD BE DRAWN FROM HALPERIN'S
INVOCATION OF HIS FIFTH AMENDMENT PRIVILEGE BEFORE THE GRAND JURY. 
RECENT RE-EXAMINATION OF THE HISTORY AND MEANING OF THE FIFTH AMENDMENT
HAS EMPHASIZED ANEW THAT ONE OF THE BASIC FUNCTIONS OF THE PRIVILEGE IS
TO PROTECT INNOCENT MEN.  GRISWOLD, THE FIFTH AMENDMENT TODAY, 9-30, 53
82.  "TOO MANY, EVEN THOSE WHO SHOULD BE BETTER ADVISED, VIEW THIS
PRIVILEGE AS A SHELTER FOR WRONGDOERS.  THEY TOO READILY ASSUME THAT
THOSE WHO INVOKE IT ARE EITHER GUILTY OF CRIME OR COMMIT PERJURY IN
CLAIMING THE PRIVILEGE."  ULLMANN V. UNITED STATES, 350 U.S. 422, 426. 
SEE ALSO SLOCHOWER V. BOARD OF HIGHER EDUCATION, 350 U.S. 551, WHEN, AT
THE SAME TERM, THIS COURT SAID AT PP. 557-558:  "THE PRIVILEGE SERVES
TO PROTECT THE INNOCENT WHO OTHERWISE MIGHT BE ENSNARED BY AMBIGUOUS
CIRCUMSTANCES."    WHEN WE PASS TO THE ISSUE OF CREDIBILITY, WE DEEM IT
EVIDENT THAT HALPERIN'S CLAIM OF THE FIFTH AMENDMENT PRIVILEGE BEFORE
THE BROOKLYN GRAND JURY IN RESPONSE TO QUESTIONS WHICH HE ANSWERED AT
THE TRIAL WAS WHOLLY CONSISTENT WITH INNOCENCE.  HAD HE ANSWERED THE
QUESTIONS PUT TO HIM BEFORE THE GRAND JURY IN THE SAME WAY HE
SUBSEQUENTLY ANSWERED THEM AT TRIAL, THIS NEVERTHELESS WOULD HAVE
PROVIDED THE GOVERNMENT WITH INCRIMINATING EVIDENCE FROM HIS OWN
MOUTH.  FOR EXAMPLE, HAD HE STATED TO THE GRAND JURY THAT HE KNEW
GRUNEWALD, THE ADMISSION WOULD HAVE CONSTITUTED A LINK BETWEEN HIM AND
A CRIMINAL CONSPIRACY, AND THIS WOULD BE TRUE EVEN THOUGH HE WAS
ENTIRELY INNOCENT AND EVEN THOUGH HIS FRIENDSHIP WITH GRUNEWALD WAS
ABOVE REPROACH.  THERE WAS, THEREFORE, AS WE SEE IT, NO INCONSISTENCY
BETWEEN HALPERIN'S STATEMENT TO THE GRAND JURY THAT ANSWERING THE
QUESTION WHETHER HE KNEW GRUNEWALD WOULD TEND TO FURNISH INCRIMINATING
EVIDENCE AGAINST HIM, AND HIS SUBSEQUENT TESTIMONY AT TRIAL THAT HIS
ACQUAINTANCE WITH GRUNEWALD WAS FREE OF CRIMINAL ELEMENTS.  AND THE
SAME THING IS ALSO TRUE, AS WE SEE IT, AS TO HIS CLAIM OF PRIVILEGE
WITH RESPECT TO THE OTHER QUESTIONS ASKED HIM BEFORE THE GRAND JURY AND
HIS ANSWERS TO THOSE SAME QUESTIONS WHEN THEY WERE PUT TO HIM AT THE
TRIAL.  THESE CONCLUSIONS ARE FORTIFIED BY A NUMBER OF OTHER
CONSIDERATIONS SURROUNDING HALPERIN'S CLAIM OF PRIVILEGE: 

FIRST, HALPERIN REPEATEDLY INSISTED BEFORE THE GRAND JURY THAT HE WAS
INNOCENT AND THAT HE PLEADED HIS FIFTH AMENDMENT PRIVILEGE SOLELY ON
THE ADVICE OF COUNSEL. 

SECOND, THE FIFTH AMENDMENT CLAIM WAS MADE BEFORE A GRAND JURY WHERE
HALPERIN WAS A COMPELLED, AND NOT A VOLUNTARY, WITNESS; WHERE HE WAS
NOT REPRESENTED BY COUNSEL; WHERE HE COULD SUMMON NO WITNESSES; AND
WHERE HE HAD NO OPPORTUNITY TO CROSS-EXAMINE WITNESSES TESTIFYING
AGAINST HIM.  THESE FACTORS ARE CRUCIAL IN WEIGHING WHETHER A PLEA OF
THE PRIVILEGE IS INCONSISTENT WITH LATER EXCULPATORY TESTIMONY ON THE
SAME QUESTIONS, FOR THE NATURE OF THE TRIBUNAL WHICH SUBJECTS THE
WITNESS TO QUESTIONING BEARS HEAVILY ON WHAT INFERENCES CAN BE DRAWN
FROM A PLEA OF THE FIFTH AMENDMENT.  SEE GRISWOLD, SUPRA, AT 62. 
INNOCENT MEN ARE MORE LIKELY TO PLEAD THE PRIVILEGE IN SECRET
PROCEEDINGS, WHERE THEY TESTIFY WITHOUT ADVICE OF COUNSEL AND WITHOUT
OPPORTUNITY FOR CROSS-EXAMINATION, THAN IN OPEN COURT PROCEEDINGS,
WHERE CROSS-EXAMINATION AND JUDICIALLY SUPERVISED PROCEDURE PROVIDE
SAFEGUARDS FOR THE ESTABLISHING OF THE WHOLE, AS AGAINST THE
POSSIBILITY OF MERELY PARTIAL, TRUTH. 

FINALLY, AND MOST IMPORTANT, WE CANNOT DEEM HALPERIN'S PLEA OF THE
FIFTH AMENDMENT TO BE INCONSISTENT WITH HIS LATER TESTIMONY AT THE
TRIAL BECAUSE OF THE NATURE OF THIS PARTICULAR GRAND-JURY PROCEEDING. 
FOR, WHEN HALPERIN WAS QUESTIONED BEFORE THE GRAND JURY, HE WAS QUITE
EVIDENTLY ALREADY CONSIDERED A POTENTIAL DEFENDANT.  THE TAXPAYERS
WHOSE CASES HAD BEEN "FIXED" BY THE CONSPIRATORIAL RING HAD ALREADY
TESTIFIED BEFORE THE GRAND JURY, AND THEY GAVE THERE LARGELY THE SAME
EVIDENCE AS THEY DID LATER, AT TRIAL.  THE SCHEME WAS THUS IN ESSENCE
ALREADY REVEALED WHEN HALPERIN WAS CALLED TO TESTIFY.  UNDER THESE
CIRCUMSTANCES IT WAS EVIDENT THAT HALPERIN WAS FACED WITH THE
POSSIBILITY OF AN EARLY INDICTMENT, AND IT WAS QUITE NATURAL FOR HIM TO
FEAR THAT HE WAS BEING ASKED QUESTIONS FOR THE VERY PURPOSE OF
PROVIDING EVIDENCE AGAINST HIMSELF.  IT WAS THUS QUITE CONSISTENT WITH
INNOCENCE FOR HIM TO REFUSE TO PROVIDE EVIDENCE WHICH COULD BE USED BY
THE GOVERNMENT IN BUILDING ITS INCRIMINATING CHAIN.  FOR MANY INNOCENT
MEN WHO KNOW THAT THEY ARE ABOUT TO BE INDICTED WILL REFUSE TO HELP
CREATE A CASE AGAINST THEMSELVES UNDER CIRCUMSTANCES WHERE LACK OF
COUNSEL'S ASSISTANCE AND LACK OF OPPORTUNITY FOR CROSS-EXAMINATION WILL
PREVENT THEM FROM BRINGING OUT THE EXCULPATORY CIRCUMSTANCES IN THE
CONTEXT OF WHICH SUPERFICIALLY INCRIMINATING ACTS OCCURRED. 

WE ARE NOT UNMINDFUL THAT THE QUESTION WHETHER A PRIOR STATEMENT IS
SUFFICIENTLY INCONSISTENT TO BE ALLOWED TO GO TO THE JURY ON THE
QUESTION OF CREDIBILITY IS USUALLY WITHIN THE DISCRETION OF THE TRIAL
JUDGE.  BUT WHERE SUCH EVIDENTIARY MATTER HAS GRAVE CONSTITUTIONAL
OVERTONES, AS IT DOES HERE, WE FEEL JUSTIFIED IN EXERCISING THIS
COURT'S SUPERVISORY CONTROL TO PASS ON SUCH A QUESTION.  THIS IS
PARTICULARLY SO BECAUSE IN THIS CASE THE DANGERS OF IMPERMISSIBLE USE
OF THIS EVIDENCE FAR OUTWEIGHED WHATEVER ADVANTAGE THE GOVERNMENT MIGHT
HAVE DERIVED FROM IT IF PROPERLY USED.  IF THE JURY HERE FOLLOWED THE
JUDGE'S INSTRUCTIONS, NAMELY, THAT THE PLEA OF THE FIFTH AMENDMENT WAS
RELEVANT ONLY TO CREDIBILITY, THEN THE WEIGHT TO BE GIVEN THIS EVIDENCE
WAS LESS THAN NEGLIGIBLE, SINCE, AS WE HAVE OUTLINED ABOVE, THERE WAS
NO TRUE INCONSISTENCY INVOLVED; IT COULD THEREFORE HARDLY HAVE AFFECTED
THE GOVERNMENT'S CASE SERIOUSLY TO EXCLUDE THE MATTER COMPLETELY.  ON
THE OTHER HAND, THE DANGER THAT THE JURY MADE IMPERMISSIBLE USE OF THE
TESTIMONY BY IMPLICITLY EQUATING THE PLEA OF THE FIFTH AMENDMENT WITH
GUILT IS, IN LIGHT OF CONTEMPORARY HISTORY, FAR FROM NEGLIGIBLE. 
WEIGHING THESE FACTORS, THEREFORE, WE FEEL THAT WE SHOULD DRAW UPON OUR
SUPERVISORY POWER OVER THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE
IN ORDER TO RULE ON THE MATTER.  CF. MCNABB V. UNITED STATES, 318 U.S.
332. 

WE HOLD THAT UNDER THE CIRCUMSTANCES OF THIS CASE IT WAS PREJUDICIAL
ERROR FOR THE TRIAL JUDGE TO PERMIT CROSS-EXAMINATION OF PETITIONER ON
HIS PLEA OF THE FIFTH AMENDMENT PRIVILEGE BEFORE THE GRAND JURY, AND
THAT HALPERIN MUST THEREFORE BE GIVEN A NEW TRIAL ON COUNTS 5, 6, AND
7. 

FINALLY, WE FIND NO SUBSTANCE TO HALPERIN'S CONTENTION THAT HE WAS IN
EFFECT CONVICTED FOR ADVISING, AS A LAWYER, SOME OF THE WITNESSES
BEFORE THE GRAND JURY THAT THEY HAD A RIGHT TO PLEAD THEIR FIFTH
AMENDMENT PRIVILEGE.  THE EVIDENCE AGAINST HALPERIN UNDER THESE COUNTS
WAS QUITE SUFFICIENT TO MAKE OUT A CASE FOR SUBMISSION TO THE JURY. 

FOR THE REASONS GIVEN WE HOLD THAT THE JUDGMENTS BELOW MUST BE
REVERSED, AND THE CASES REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THIS SECTION PROVIDES:  "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." 

FN2  18 U.S.C. SEC. 1503 PROVIDES, IN RELEVANT PART:  "WHOEVER
CORRUPTLY  ...  ENDEAVORS TO INFLUENCE, INTIMIDATE, OR IMPEDE ANY
WITNESS, IN ANY COURT OF THE UNITED STATES OR BEFORE ANY UNITED STATES
COMMISSIONER OR OTHER COMMITTING MAGISTRATE, OR ANY GRAND OR PETIT
JUROR, OR OFFICER IN OR OF ANY COURT OF THE UNITED STATES  ...  IN THE
DISCHARGE OF HIS DUTY  ...  OR CORRUPTLY  ... INFLUENCES, OBSTRUCTS, OR
IMPEDES, OR ENDEAVORS TO INFLUENCE, OBSTRUCT, OR IMPEDE, THE DUE
ADMINISTRATION OF JUSTICE, SHALL BE FINED NOT MORE THAN $5,000 OR
IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH."  GRUNEWALD AND BOLICH
WERE ACQUITTED ON THESE COUNTS. 

FN3  PARAGRAPH 7 OF THE INDICTMENT ALLEGED:  "IT WAS A PART OF THE
CONSPIRACY THAT THE DEFENDANTS AND CO-CONSPIRATORS WOULD MAKE
CONTINUING EFFORTS TO AVOID DETECTION AND PROSECUTION BY ANY
GOVERNMENTAL BODY  ...  OF TAX FRAUDS PERPETRATED BY THE DEFENDANTS AND
CO-CONSPIRATORS, THROUGH THE USE OF ANY MEANS WHATSOEVER, INCLUDING BUT
NOT LIMITED TO, BRIBERY, IMPROPER INFLUENCE AND CORRUPTION OF
GOVERNMENT EMPLOYEES, THE GIVING OF FALSE TESTIMONY, ETC.  ...  ." 

PARAGRAPH 13 ALLEGED:  "IT WAS FURTHER A PART OF THE CONSPIRACY THAT
THE DEFENDANTS AND CO-CONSPIRATORS AT ALL TIMES WOULD MISREPRESENT,
CONCEAL AND HIDE AND CAUSE TO BE MISREPRESENTED, CONCEALED AND HIDDEN,
THE ACTS DONE PURSUANT TO AND THE PURPOSES OF SAID CONSPIRACY." 

FN4  233 F.2D, AT 559-562. 

FN5  A "NO PROSECUTION" RULING IS AN INTERNAL DECISION BY THE
INVESTIGATIVE BRANCH OF THE BUREAU OF INTERNAL REVENUE NOT TO PRESS
CRIMINAL CHARGES AGAINST A TAXPAYER. 

FN6  THE PAYMENTS WERE MADE IN CASH.  IN ORDER TO RAISE THE MONEY AND
LEAVE NO TRACES, THE TAXPAYERS MADE UNRECORDED SALE, THE PROFITS OF
WHICH WERE AGAIN UNREPORTED INCOME.  FURTHER LARGE FEES WERE PAID TO
HALPERIN AND HIS ASSOCIATES. 

FN7  PETITIONER BOLICH WAS ALSO CONVICTED ON COUNT 2 OF THE
INDICTMENT, WHICH CHARGED HIM AND TWO OTHER BUREAU OF INTERNAL REVENUE
EMPLOYEES WITH CONSPIRACY IN VIOLATION OF 26 U.S.C. SEC. 4047(E)(4). 
HE WAS SENTENCED TO THREE YEARS' IMPRISONMENT AND A $5,000 FINE ON THIS
COUNT, THE PRISON SENTENCE TO RUN CONCURRENTLY WITH THE FIVE-YEAR
SENTENCE ON COUNT 1.  THE COURT OF APPEALS HELD THAT BOTH COUNTS
RELATED TO THE SAME CONSPIRACY, AND SET ASIDE THE SEPARATE FINE ON
COUNT 2. 

FN8  THE GOVERNING STATUTE WAS 18 U.S.C. SEC. 3282, WHICH PROVIDED:
"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  ...  WITHIN THREE YEARS NEXT AFTER SUCH OFFENSE
SHALL HAVE BEEN COMMITTED." 

FN9  ON SEPTEMBER 1, 1954, THE STATUTE OF LIMITATIONS WAS AMENDED TO
PROVIDE FOR A FIVE-YEAR LIMITATION PERIOD.  68 STAT. 1145, 18 U.S.C.
(SUPP. III) SEC. 3282.  SINCE THE AMENDING STATUTE WAS BY ITS TERMS
MADE APPLICABLE TO OFFENSES NOT BARRED ON ITS EFFECTIVE DATE, THAT IS,
SEPTEMBER 1, 1954, IT WOULD SEEM THAT IN FACT THE CRUCIAL DATE HERE IS
SEPTEMBER 1, 1951, RATHER THAN OCTOBER 25; IN OTHER WORDS, IF THE
CONSPIRACY WAS STILL ALIVE AFTER SEPTEMBER 1, IT WAS NOT BARRED. 
HOWEVER, THE CASE WAS TRIED ON THE THEORY THAT OCTOBER 25 WAS THE
CRUCIAL DATE, AND WE SO TREAT IT IN THIS OPINION.  THE ERROR, OF
COURSE, WAS FAVORABLE TO THE PETITIONERS AND WAS THEREFORE HARMLESS. 
ON THE OTHER HAND, SINCE WE HOLD THAT PETITIONERS MUST HAVE A NEW
TRIAL, THE ERROR MAY BE CORRECTED. 

FN10  SEE, IN GENERAL, LUTWAK V. UNITED STATES, 344 U.S. 604;
KRULEWITCH V. UNITED STATES, 336 U.S. 440; BOLLENBACH V. UNITED STATES,
326 U.S. 607; MCDONALD V. UNITED STATES, 89 F.2D 128; UNITED STATES V.
MANTON, 107 F.2D 834; COUSENS, AGREEMENT AS AN ELEMENT IN CONSPIRACY,
23 VA. L. REV. 898; SAYRE, CRIMINAL CONSPIRACY, 35 HARV. L. REV. 393;
NOTE, 62 HARV. L. REV. 276; NOTE, 56 COL. L. REV. 1216. 

FN11  IN SUPPORT OF THIS THEORY, PETITIONERS POINT TO EVIDENCE
SHOWING THAT THE ADMINISTRATIVE PRACTICE OF THE BUREAU OF INTERNAL
REVENUE WAS THAT ONLY RECOMMENDATIONS TO PROSECUTE WOULD BE REVIEWED AT
A HIGHER ECHELON, WHEREAS A DETERMINATION OF NO PROSECUTION WOULD, FOR
ALL PRACTICAL PURPOSES, END THE CASE.  THEY ALSO EMPHASIZE THAT PAYMENT
TO GRUNEWALD WAS MADE UNDER THE TERMS OF AN ESCROW WHICH RELEASED THE
MONEY WHEN THE "NO PROSECUTION" RULINGS CAME DOWN. 

PETITIONERS FURTHER URGE THAT THE ACTS OF CONCEALMENT OCCURRING AFTER
1949 SHOW AT MOST THAT A NEW AND SEPARATE AGREEMENT TO CONCEAL WAS
ENTERED INTO AFTER 1949, AN AGREEMENT WHICH WAS NOT CHARGED IN THE
INDICTMENT.  CF. UNITED STATES V. SIEBRICHT, 59 F.2D 976.  IN VIEW OF
OUR DISPOSITION OF THE CASE, WE NEED NOT DEAL WITH THIS CONTENTION. 

FN12  SEE N. 3, SUPRA. 

FN13  336 U.S., AT 443-444. 

FN14  ID., AT 455-456. 

FN15  SEE 336 U.S., AT 444, 455-458; 344 U.S., AT 616. 

FN16  ONE MIGHT CITE AS AN EXAMPLE GRUNEWALD'S ATTEMPT AT INFLUENCING
HIS SECRETARY NOT TO TALK TO THE GRAND JURY, ACCOMPANIED BY AN OFFER TO
"PAY HER EXPENSES."  UNDER THE GOVERNMENT'S KRULEWITCH THEORY, THE
ARGUMENT WOULD HAVE BEEN (IN MR. JUSTICE JACKSON'S WORDS) THAT THE "LAW
WILL IMPUTE TO THE CONFEDERATES A CONTINUING CONSPIRACY TO DEFEAT
JUSTICE," AND THAT THEREFORE THE OTHER CONFEDERATES ARE "BOUND BY
ANOTHER'S UNAUTHORIZED AND UNKNOWN  ...  BRIBERY OF A JUROR OR
WITNESS."  BUT NO DIFFERENT RESULT IS ACHIEVED BY SAYING THAT THE
ATTEMPTED BRIBE OF THE WITNESS IS EVIDENCE FROM WHICH ONE CAN INFER AN
"ACTUAL" CONSPIRACY TO "DEFEAT JUSTICE."  IN BOTH CASES THE ESSENTIAL
MISSING ELEMENT IS A SHOWING THAT THE ACT WAS DONE IN FURTHERANCE OF A
PRIOR CRIMINAL AGREEMENT AMONG THE CONSPIRATORS. 

FN17  DELLI PAOLI V. UNITED STATES, 352 U.S. 232; LUTWAK V. UNITED
STATES, SUPRA; KRULEWITCH V. UNITED STATES, SUPRA; BOLLENBACK V. UNITED
STATES, 326 U.S. 607. 

FN18  SEE RETTICH V. UNITED STATES, 84 F.2D 118; MCDONALD V. UNITED
STATES, 89 F.2D 128. 

FN19  THE TAX EVASION CASES WERE GOVERNED BY A SIX-YEAR STATUTE OF
LIMITATIONS, 26 U.S.C.  (1940 ED.)  SEC.  3748, WHICH BEGAN TO RUN WHEN
THE LAST RETURN, PERTAINING TO THE YEAR 1946, WAS FILED BY THE
TAXPAYERS. 

FN20  THE GOVERNMENT ALSO SUGGESTS A FURTHER THEORY UNDER WHICH THIS
CONSPIRACY COULD BE DEEMED TO HAVE LASTED INTO THE INDICTMENT PERIOD. 
UNDER THIS THEORY, THE CENTRAL AIM OF THE CONSPIRACY WAS NOT
SPECIFICALLY TO "FIX" THE TAX TROUBLES OF GOTHAM AND PATULLO, BUT TO
ENGAGE IN THE CONTINUING BUSINESS OF FIXING ANY AND ALL TAX-FRAUD
CASES.  IF THIS WERE THE AIM OF THE CONSPIRACY, ACTS OF CONCEALMENT
COULD HAVE BEEN IN FURTHERANCE OF THIS AIM BY ENABLING THE RING TO STAY
IN BUSINESS SO THAT IT COULD GET NEW CASES.  EVIDENCE SUPPORTING THIS
THEORY, SAYS THE GOVERNMENT, IS THAT IN 1950, AFTER THE "NO
PROSECUTION" RULINGS IN THE PATULLO AND GOTHAM CASES, HALPERIN ENGAGED
IN NEGOTIATIONS WITH ANOTHER FIRM WHICH WAS IN TAX DIFFICULTIES. 
ALTHOUGH THESE NEGOTIATIONS CAME TO NOTHING, DUE TO DISAGREEMENT ABOUT
THE FEE TO BE PAID TO THE CONSPIRATORS, THE INCIDENT IS PRESENTED AS
EVIDENCE THAT THE CONSPIRATORS WERE ACTIVELY SOLICITING FUTURE TAX
CLIENTS IN 1950 AND WERE THUS STILL "IN BUSINESS."    WE CANNOT ACCEPT
THIS THEORY OF THE GOVERNMENT.  THE TROUBLE IS NOT ONLY THAT THE THEORY
WAS NEVER SUBMITTED TO THE JURY, BUT THAT NO OVERT ACT DONE TO FURTHER
THE PURPOSE OF ENGAGING IN "NEW" BUSINESS WAS CHARGED OR PROVED TO HAVE
OCCURRED AFTER OCTOBER 25, 1951.  IF ONE OF THE PURPOSES OF THE
CONSPIRACY WAS TO ENGAGE IN THE BUSINESS OF FIXING TAX CASES GENERALLY,
IT MUST BE DEEMED TO HAVE BEEN ABANDONED IN 1951, WHEN INVESTIGATIONS
OF THE PETITIONERS STARTED IN CONGRESS, SINCE THE 1951 AND 1952
ACTIVITIES OF THE CONSPIRATORS CONSISTED MERELY OF COVERING UP OLD
VENTURES RATHER THAN SEEKING NEW ONES, AND SINCE THERE IS NO INDICATION
THAT THERE WAS AN INTENT TO RESUME OPERATIONS AFTER THE INVESTIGATIONS
HAD ENDED.  INDEED, UPON THE ORAL ARGUMENT THE GOVERNMENT SEEMED TO
ABANDON THIS THEORY. 

FN21  THE INDICTMENT WAS CLEARLY SUFFICIENT TO COVER SUBMISSION OF
THIS THEORY TO THE JURY.  SEE N. 3, SUPRA. 

FN22  ONE MIGHT CITE AS A TYPICAL EXAMPLE AN INCIDENT IN THE RECORD
OCCURRING IN NOVEMBER 1949, 10 MONTHS AFTER THE "NO PROSECUTION" RULING
WAS HANDED DOWN IN THE PATULLO CASE.  THE SPECIAL AGENT WHO HAD BEEN
WORKING ON THE CASE WROTE A FINAL REPORT ON IT, WHICH STATED THAT
PATULLO WAS NOT PROSECUTED SOLELY BECAUSE OF BOLICH'S DECISION.  THIS
REPORT WAS SENT TO BOLICH, WHO THEREUPON CALLED THE CHIEF OF THE
CONFERENCE SECTION AND ASKED HIM TO WRITE AN EXPLANATORY MEMORANDUM ON
THE CASE SO AS TO "TAKE A LITTLE HEAT OFF THE SITUATION."  THIS ATTEMPT
TO "DOCTOR" THE REPORT MIGHT EASILY HAVE BEEN MOTIVATED NOT ONLY BY
FEAR FOR HIMSELF, BUT BY A PURPOSE TO SAFEGUARD THE "NO PROSECUTION"
RULING FROM CHANGE IN ORDER TO MAINTAIN THE IMMUNITY OF THE TAXPAYERS. 
FN23  THE NEGOTIATIONS BETWEEN HALPERIN AND HIS ASSOCIATES AND THE
TAXPAYERS WERE NEVER VERY SPECIFIC AS TO WHAT EXACTLY WAS TO BE
ACCOMPLISHED.  THE TENOR OF THE DISCUSSIONS WAS THAT IF THE TAXPAYERS
WOULD HIRE THE MYSTERIOUS "INFLUENTIAL" MAN IN WASHINGTON, THE MATTER
"WOULD BE ENDED," THE "PROSECUTION END OF THE CASE" WOULD BE AVOIDED,
THE MATTER WOULD BE SETTLED "IN A CIVIL WAY WITHOUT CRIMINAL
PROSECUTION."  IN THE SAME TENOR, THE ACCOUNTANT OF GOTHAM BEEF
TESTIFIED THAT "NOTHING AT ALL WAS TO BE PAID UNLESS THE CRIMINAL
PROSECUTION HAD BEEN ELIMINATED.  IT WAS FURTHER UNDERSTOOD THAT THEY
WERE NOT AT ALL CONCERNED WITH THE AMOUNT OF THE TAX THAT MIGHT RESULT
BY WAY OF ASSESSMENT, BUT IT WAS EITHER THAT THEY WERE COMPLETELY
SUCCESSFUL IN ELIMINATING CRIMINAL PROSECUTION  ...  OR THERE WOULD BE
NO FEE AT ALL."  IN OTHER WORDS, THERE IS LITTLE INDICATION THAT IT WAS
THE SPECIFIC AND NARROW END OF OBTAINING THE "NO PROSECUTION" RULINGS
WHICH WAS TO BE THE QUID PRO QUO. 

THIS IS FURTHER BUTTRESSED BY THE FACT THAT THE TAXPAYERS WERE WELL
AWARE OF THE PRECARIOUS NATURE OF THE 1948 AND 1949 RULINGS; IT IS
QUITE CLEAR THAT THEY REALIZED THAT THIS DID NOT "END" THE DANGER OF
CRIMINAL PROSECUTION.  THUS THE PATULLO TAXPAYERS WERE AWARE THAT THE
CONTINUED INVESTIGATION OF THEIR BOOKS FOR THE PURPOSES OF CIVIL TAX
LIABILITY EXPOSED THEM TO CONSTANT DANGER OF "TIPPING THE APPLECART." 
THEY WERE WARNED TO "KEEP THEIR MOUTHS SHUT," AND A FURTHER PAYMENT OF
$25,000 WAS MADE FOR THE "BOYS IN NEW YORK" SO THAT NO ONE WOULD "RAISE
A FUSS ABOUT THE PHONY DEAL THAT HAD BEEN PUT THROUGH."  ANOTHER
PATULLO OFFICER TESTIFIED THAT, AFTER THE "NO PROSECUTION" RULING, "WE
STILL WERE NOT AT EASE ABOUT THE THING.  WE KNEW THAT WE WERE ELATED
OVER THE RESULTS, BUT WE STILL WERE WORRIED ABOUT IT.  THERE WAS
COOPERATION TO TAKE CARE OF.  WE HAD TO MAKE THIS PAYOFF FOR THE NEW
YORK BOYS.  WE WERE NOT THROUGH WITH IT AT THAT TIME.  WE NEVER KNEW
WHEN SOMETHING ELSE WAS GOING TO COME UP.  WE WEREN'T THROUGH AT ALL
...  .  FOR TWO YEARS AFTER THAT WE STILL WEREN'T THROUGH WITH THE
THING."  AND, REFERRING TO THE PAYMENT FOR THE "NEW YORK BOYS" IN 1949:
"WE NEVER FELT TOO SURE ABOUT ANYTHING BECAUSE THE CIVIL SETTLEMENT
STILL HAD TO BE MADE AND WE KNEW THERE WERE PEOPLE THAT HAD TO GO
THROUGH IT AND PASS ON IT AND EVERYTHING, AND WHILE THIS WAS GOING ON
WE WERE TOLD THAT WE WOULD HAVE TO GET UP SOME MORE MONEY." 

A JURY COULD THUS EASILY INFER THAT THE CONSPIRATORS' FUNCTION DID
NOT END IN JANUARY 1949, AND THAT THE CONSPIRATORIAL AGREEMENT
CONTEMPLATED FURTHER EFFORTS TO IMMUNIZE THE TAXPAYERS FROM TAX
PROSECUTION. 

FN24  IT SHOULD BE MENTIONED THAT THE COURT OF APPEALS WAS UNANIMOUS
IN FINDING THAT THERE WAS SUFFICIENT EVIDENCE IN THE RECORD TO WARRANT
THE SUBMISSION OF THE CASE TO THE JURY ON THE THEORY THAT THE CENTRAL
OBJECTIVES OF THE CONSPIRACY WERE NOT ACHIEVED UNTIL THE STATUTE OF
LIMITATIONS RAN ON THE TAX-EVASION CHARGES.  JUDGE FRANK, WHILE
DISSENTING ON THE GROUND THAT THE CHARGE TO THE JURY WAS INADEQUATE IN
PUTTING THE CASE TO THE JURY ON THIS BASIS - A VIEW WHICH WE SHARE, SEE
INFRA, P. 413 - AGREED THAT UNDER A PROPER CHARGE THE JURY MIGHT INFER
THAT THE CONSPIRACY WAS STILL ALIVE THROUGH 1951.  SEE 233 F.2D, AT 592
596. 

FN25  SEE N. 2, SUPRA. 

FN26  GRUNEWALD AND BOLICH ALSO MAKE THIS CONTENTION ON THEIR OWN
BEHALF. 

FN27  THE QUESTIONS WERE:  (1) WHETHER PETITIONER HELD ESCROW MONEY
WHICH WAS SUBSEQUENTLY DELIVERED TO GRUNEWALD; (2) WHETHER PETITIONER
KNEW GRUNEWALD; (3) WHETHER PETITIONER MADE A TELEPHONE CALL TO
GRUNEWALD RELATIVE TO AN APPOINTMENT BETWEEN BOLICH AND ONE DAVIS, A
MEMBER OF THE CONSPIRACY; (4) WHETHER PETITIONER HAD FILED A POWER OF
ATTORNEY IN THE GLOVER CASE; (5) WHETHER HE HAD EVER MET ONE OLIPHANT,
AN OFFICIAL IN THE TREASURY; (6) WHETHER HE KNEW STEINBERG; (7) WHETHER
HE KNEW TOBIAS, THE ACCOUNTANT OF GOTHAM BEEF; (8) WHETHER HE HAD EVER
MET GRUNEWALD IN THE MUNSEY BUILDING IN WASHINGTON. 

FN28  THE CHARGE AS TO THIS POINT WAS AS FOLLOWS: 

"DURING THE CROSS EXAMINATION OF ONE OF THE DEFENDANTS, THE
GOVERNMENT QUESTIONED THE DEFENDANT AS TO HIS PREVIOUS STATEMENTS
BEFORE THE BROOKLYN GRAND JURY IN WHICH HE REFUSED TO ANSWER CERTAIN
QUESTIONS ON THE GROUND THAT ANSWERS TO THEM MIGHT TEND TO INCRIMINATE
HIM.  THESE QUESTIONS RELATED TO MATTERS SIMILAR TO THOSE TO WHICH THE
DEFENDANT TESTIFIED AT THIS TRIAL WHEN HE TOOK THE STAND.  NO WITNESS
IS REQUIRED TO TAKE THE STAND OR REQUIRED TO GIVE TESTIMONY THAT MIGHT
TEND TO INCRIMINATE HIM; BUT WHEN A DEFENDANT TAKES THE STAND IN HIS
OWN DEFENSE AT A TRIAL, IT IS PROPER TO INTERROGATE HIM AS TO PREVIOUS
STATEMENTS WHICH HE MAY HAVE MADE UNDER OATH CONCERNING THE SAME
MATTER, INCLUDING HIS ASSERTION OF HIS CONSTITUTIONAL PRIVILEGE TO
REFUSE TO TESTIFY AS TO THOSE MATTERS BEFORE A GRAND JURY.  YOU MAY USE
THIS EVIDENCE OF A DEFENDANT'S PRIOR ASSERTIONS OF THE FIFTH AMENDMENT
FOR THE SOLE PURPOSE OF ASCERTAINING THE WEIGHT YOU CHOOSE TO GIVE TO
HIS PRESENT TESTIMONY WITH RESPECT TO THE SAME MATTERS UPON WHICH HE
PREVIOUSLY INVOKED HIS PRIVILEGE. 

"THE DEFENDANT HAD THE RIGHT OF ASSERTING THE FIFTH AMENDMENT WHEN HE
APPEARED BEFORE THE GRAND JURY, AND I CHARGE YOU THAT YOU ARE NOT TO
DRAW ANY INFERENCE WHATSOEVER AS TO THE GUILT OR INNOCENCE OF THE
DEFENDANT IN THIS CASE BY REASON OF THE FACT THAT HE CHOSE TO ASSERT
HIS UNQUESTIONED RIGHT TO INVOKE THE FIFTH AMENDMENT ON THAT PREVIOUS
OCCASION.  HOWEVER, IT WAS PROPER FOR THE GOVERNMENT TO QUESTION THE
DEFENDANT WITH RESPECT TO HIS PREVIOUS INVOCATION OF THE FIFTH
AMENDMENT, BUT YOU MAY CONSIDER THIS EVIDENCE OF HIS PRIOR ASSERTIONS
OF THE FIFTH AMENDMENT ONLY FOR THE PURPOSE OF ASCERTAINING THE WEIGHT
YOU CHOOSE TO GIVE TO HIS PRESENT TESTIMONY WITH RESPECT TO THE SAME
MATTERS UPON WHICH HE PREVIOUSLY ASSERTED HIS CONSTITUTIONAL
PRIVILEGE.  IT IS NOT TO BE CONSIDERED IN A DETERMINATION OF THE GUILT
OR INNOCENCE OF ANY CO-DEFENDANT." 

FN29  UNITED STATES V. GOTTFRIED, 165 F.2D 360, 367. 

FN30  WHEN THE TRIAL COURT FIRST RULED THAT THE GOVERNMENT COULD
CROSS-EXAMINE AS TO PETITIONER'S FIFTH AMENDMENT PLEA, IT DID NOT DO SO
ON THE GROUNDS OF INCONSISTENCY REFLECTING ON CREDIBILITY.  IN FACT THE
IMPLICATION TO BE DRAWN FROM THE RECORD IS THAT THE COURT AT THAT TIME
FELT THAT THE JURY MIGHT USE THIS EVIDENCE FOR ANY PURPOSE AT ALL,
INCLUDING THE DRAWING OF INFERENCES AS TO GUILT OR INNOCENCE.  WHEN THE
GOVERNMENT FIRST EMBARKED ON THIS METHOD OF CROSS-EXAMINATION, THE
JUDGE OVERRULED OBJECTIONS IN THESE WORDS: 

"THE COURT:  I KNOW THE GOVERNMENT'S POSITION.  AS I SEE IT, MR.
CORBIN (A DEFENSE ATTORNEY), NO WITNESS CAN BE COMPELLED TO TESTIFY
AGAINST HIMSELF.  THE WITNESS IS CALLED BEFORE THE GRAND JURY AND THE
ANSWER WAS, I REFUSE TO ANSWER SOMETHING ON THE GROUND THAT IF I ANSWER
THAT QUESTION IT WILL INCRIMINATE ME. 

"MR. CORBIN:  TEND TO INCRIMINATE. 

"THE COURT:  OR TEND TO INCRIMINATE.  A WITNESS CAN MAKE THAT
STATEMENT.  NO WITNESS HAS TO TAKE THE WITNESS STAND, AS I UNDERSTAND
THE LAW AND IF A WITNESS HAS SO STATED, THEN HE COULD NOT BE COMPELLED
TO TAKE THE STAND HERE, BUT IF A WITNESS VOLUNTARILY TAKES THE STAND
AND IS ASKED IN A PREVIOUS PROCEEDING DID YOU SAY ANY TESTIMONY ON THIS
SUBJECT WOULD INCRIMINATE YOU, THAT CAN BE CONSIDERED BY THE JURY FOR
SUCH BENEFIT OR SUCH WORTH AS THE JURY MAY WANT TO GIVE IT." 

WHEN THE DEFENDANTS ASKED THAT AT THE VERY LEAST THE USE OF THIS
EVIDENCE BE RESTRICTED TO THE QUESTION OF CREDIBILITY, THE JUDGE
CONTENTED HIMSELF WITH ASKING FOR A MEMORANDUM OF LAW ON THE SUBJECT. 
THUS, ALTHOUGH LATER, IN THE CHARGE TO THE JURY, THE MATTER WAS
SPECIFICALLY RESTRICTED TO THE ISSUE OF CREDIBILITY, THERE WAS NO
INQUIRY BY THE JUDGE AT THE TIME OF THE INITIAL ADMISSION OF THIS
EVIDENCE AS TO WHETHER A SUFFICIENT SHOWING OF INCONSISTENCY HAD BEEN
MADE. 

FN31  THE CERTIFIED QUESTION WAS:  "WAS IT ERROR TO REQUIRE THE
DEFENDANT, RAFFEL, OFFERING HIMSELF AS A WITNESS UPON THE SECOND TRIAL,
TO DISCLOSE THAT HE HAD NOT TESTIFIED AS A WITNESS IN HIS OWN BEHALF
UPON THE FIRST TRIAL?"  271 U.S., AT 496. 

FN32  IN RAFFEL THIS COURT ASSUMED THAT THE DEFENDANT'S FAILURE TO
TESTIFY AT THE FIRST TRIAL COULD NOT BE USED AS EVIDENCE OF GUILT IN
THE SECOND TRIAL, 271 U.S., AT 497.  THE COURT FURTHER STATED THAT "THE
TRIAL JUDGE MIGHT APPROPRIATELY INSTRUCT THE JURY THAT THE FAILURE OF
THE DEFENDANT TO TAKE THE STAND IN HIS OWN BEHALF IS NOT IN ITSELF TO
BE TAKEN AS AN ADMISSION OF THE TRUTH OF THE TESTIMONY WHICH HE DID NOT
DENY."  AS ALREADY INDICATED, P. 418, SUPRA, HERE THE TRIAL JUDGE
REFUSED TO CHARGE THAT "AN INNOCENT MAN MAY HONESTLY CLAIM THAT HIS
ANSWERS MAY TEND TO INCRIMINATE HIM." 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS,
AND MR. JUSTICE BRENNAN JOIN, CONCURRING. 

I CONCUR IN THE REVERSAL OF THESE CASES FOR THE REASONS GIVEN IN THE
COURT'S OPINION WITH ONE EXCEPTION. 

IN NO. 184, THE PETITIONER, HALPERIN, APPEARED BEFORE A GRAND JURY IN
RESPONSE TO A SUBPOENA.  THERE HE DECLINED TO ANSWER CERTAIN QUESTIONS
RELYING ON THE PROVISION OF THE FIFTH AMENDMENT THAT "NO PERSON  ...
SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF." 

LATER, AT HIS TRIAL, HALPERIN TOOK THE STAND TO TESTIFY IN HIS OWN
BEHALF.  ON CROSS-EXAMINATION THE PROSECUTING ATTORNEY ASKED HIM THE
SAME QUESTIONS THAT HE HAD REFUSED TO ANSWER BEFORE THE GRAND JURY. 
THIS TIME HALPERIN ANSWERED THE QUESTIONS; HIS ANSWERS TENDED TO SHOW
THAT HE WAS INNOCENT OF ANY WRONG-DOING.  THE GOVERNMENT WAS THEN
PERMITTED OVER OBJECTION TO DRAW FROM HIM THE FACT THAT HE HAD
PREVIOUSLY REFUSED TO ANSWER THESE QUESTIONS BEFORE THE GRAND JURY ON
THE GROUND THAT HIS ANSWERS MIGHT TEND TO INCRIMINATE HIM. 

AT THE CONCLUSION OF THE TRIAL THE JUDGE INSTRUCTED THE JURY THAT
HALPERIN'S CLAIM OF HIS CONSTITUTIONAL PRIVILEGE NOT TO BE A WITNESS
AGAINST HIMSELF COULD BE CONSIDERED IN DETERMINING WHAT WEIGHT SHOULD
BE GIVEN TO HIS TESTIMONY - IN OTHER WORDS, WHETHER HALPERIN WAS A
TRUTHFUL AND TRUSTWORTHY WITNESS.  I AGREE WITH THE COURT THAT USE OF
THIS CLAIM OF CONSTITUTIONAL PRIVILEGE TO REFLECT UPON HALPERIN'S
CREDIBILITY WAS ERROR, BUT I DO NOT, LIKE THE COURT, REST MY CONCLUSION
ON THE SPECIAL CIRCUMSTANCES OF THIS CASE.  I CAN THINK OF NO SPECIAL
CIRCUMSTANCES THAT WOULD JUSTIFY USE OF A CONSTITUTIONAL PRIVILEGE TO
DISCREDIT OR CONVICT A PERSON WHO ASSERTS IT.  THE VALUE OF
CONSTITUTIONAL PRIVILEGES IS LARGELY DESTROYED IF PERSONS CAN BE
PENALIZED FOR RELYING ON THEM.  IT SEEMS PECULIARLY INCONGRUOUS AND
INDEFENSIBLE FOR COURTS WHICH EXIST AND ACT ONLY UNDER THE CONSTITUTION
TO DRAW INFERENCES OF LACK OF HONESTY FROM INVOCATION OF A PRIVILEGE
DEEMED WORTHY OF ENSHRINEMENT IN THE CONSTITUTION.  TO THE EXTENT THAT
APPROVAL OF SUCH A RULE IN RAFFEL V. UNITED STATES, 271 U.S. 494, HAS
VITALITY AFTER JOHNSON V. UNITED STATES, 318 U.S. 189, 196-199, I THINK
THE RAFFEL CASE SHOULD BE EXPLICITLY OVERRULED. 
..END :














RABANG V. BOYD 353 U.S. 427 


NO. 403.  ARGUED MAY 1, 1957 - DECIDED MAY 27, 1957 - 234 F.2D 904,
AFFIRMED. 


PETITIONER, BORN IN 1910 IN THE PHILIPPINE ISLANDS, HAS RESIDED IN THE
CONTINENTAL UNITED STATES SINCE 1930 WHEN HE WAS ADMITTED FOR PERMANENT
RESIDENCE.  HE WAS CONVICTED IN FEBRUARY 1951 OF VIOLATING THE FEDERAL
NARCOTICS LAWS.  AFTER ADMINISTRATIVE PROCEEDINGS, HE WAS ORDERED
DEPORTED UNDER THE ACT OF FEBRUARY 18, 1931, AS AMENDED, WHICH PROVIDES
FOR THE DEPORTATION OF "ANY ALIEN" CONVICTED OF VIOLATING A FEDERAL
NARCOTICS LAW.  PETITIONER'S APPLICATION FOR HABEAS CORPUS WAS DENIED
BY THE FEDERAL DISTRICT COURT AND THE COURT OF APPEALS AFFIRMED.  HELD:
PETITIONER WAS DEPORTABLE UNDER THE 1931 ACT, AND THE JUDGMENT IS
AFFIRMED.  PP. 428-433. 

(A)  UNDER SEC. 14 OF THE PHILIPPINE INDEPENDENCE ACT OF 1934,
PERSONS BORN IN THE PHILIPPINE ISLANDS, AND WHO THEREBY WERE NATIONALS
OF THE UNITED STATES, BECAME ALIENS ON JULY 4, 1946, REGARDLESS OF
PERMANENT RESIDENCE IN THE CONTINENTAL UNITED STATES ON THAT DATE.  PP.
429-431. 

(B)  "ENTRY" FROM A FOREIGN COUNTRY WAS NOT A CONDITION OF
DEPORTABILITY IN THE 1931 ACT.  BARBER V. GONZALES, 347 U.S. 637,
DISTINGUISHED.  P. 431. 

(C)  IN THE PROVISION OF THE 1931 ACT THAT DEPORTATION SHALL BE
ACCOMPLISHED "IN MANNER PROVIDED IN SECTIONS 19 AND 20" OF THE
IMMIGRATION ACT OF 1917, THE REFERENCE TO THE "MANNER PROVIDED" IN
THOSE SECTIONS DRAWS INTO THE 1931 ACT NOT THE REQUIREMENT OF "ENTRY,"
BUT ONLY THE PROCEDURAL STEPS FOR SECURING DEPORTATION SET FORTH IN
THOSE SECTIONS.  PP. 431-432. 

(D)  THE REQUIREMENT OF "ENTRY" CANNOT BE SAID TO BE IMPLICIT IN THE
1931 ACT ON THE GROUND THAT THE POWER TO DEPORT DEPENDS UPON THE POWER
TO EXCLUDE, AND THE POWER TO EXCLUDE DID NOT EXTEND TO FILIPINOS. 
CONGRESS NOT ONLY HAD, BUT EXERCISED, THE POWER TO EXCLUDE FILIPINOS IN
SEC. 8(A)(1) OF THE INDEPENDENCE ACT.  PP. 432-433. 

RABANG V. BOYD, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, BORN IN 1910 IN THE PHILIPPINE ISLANDS, HAS LIVED IN
THE CONTINENTAL UNITED STATES SINCE 1930, WHEN HE WAS ADMITTED FOR
PERMANENT RESIDENCE.  IN FEBRUARY 1951, HE WAS CONVICTED UPON A PLEA OF
GUILTY OF VIOLATING THE FEDERAL NARCOTICS LAWS.  HE WAS TAKEN INTO
CUSTODY IN MARCH 1951, AND, AFTER ADMINISTRATIVE PROCEEDINGS, WAS
ORDERED DEPORTED UNDER THE ACT OF FEBRUARY 18, 1931, AS AMENDED, WHICH
PROVIDED FOR THE DEPORTATION OF "ANY ALIEN" CONVICTED OF VIOLATING A
FEDERAL NARCOTICS LAW.  (FN1) 

PETITIONER APPLIED TO THE DISTRICT COURT FOR THE WESTERN DISTRICT OF
WASHINGTON FOR A WRIT OF HABEAS CORPUS AND DECLARATORY RELIEF FROM THE
ORDER OF THE IMMIGRATION AND NATURALIZATION SERVICE DEPORTING HIM TO
THE PHILIPPINE ISLANDS.  THE DISTRICT COURT DENIED THE PETITIONER'S
APPLICATION, AND THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED. 
(FN2)  WE GRANTED CERTIORARI.  (FN3) 

THE SOLE ISSUE FOR DECISION IS WHETHER THE PETITIONER IS DEPORTABLE
AS AN ALIEN WITHIN THE MEANING OF THE 1931 ACT.  THE PARTIES AGREE THAT
THE PETITIONER WAS A NATIONAL OF THE UNITED STATES AT BIRTH AND WHEN HE
ENTERED THE CONTINENTAL UNITED STATES FOR PERMANENT RESIDENCE.  UNDER
THE 1898 TREATY OF PARIS, SPAIN CEDED THE PHILIPPINE ISLANDS TO THE
UNITED STATES.  (FN4)  ARTICLE IX OF THE TREATY PROVIDED THAT "  ...
THE CIVIL RIGHTS AND POLITICAL STATUS OF THE NATIVE INHABITANTS  ...
SHALL BE DETERMINED BY THE CONGRESS."  (FN5)  PURSUANT TO THAT ARTICLE,
THE CONGRESS DECLARED, INTER ALIA, IN THE ACT OF JULY 1, 1902, THAT
FILIPINOS BORN IN THE ISLANDS AFTER 1899 WERE TO "  ...  BE CITIZENS OF
THE PHILIPPINE ISLANDS AND AS SUCH ENTITLED TO THE PROTECTION OF THE
UNITED STATES  ...  ."  (FN6)  THE FILIPINOS, AS NATIONALS, OWED AN
OBLIGATION OF PERMANENT ALLEGIANCE TO THIS COUNTRY.  (FN7) 

UPON THE PROCLAMATION OF PHILIPPINE INDEPENDENCE ON JULY 4, 1946,
(FN8) SEC. 14 OF THE PHILIPPINE INDEPENDENCE ACT OF 1934 BECAME
OPERATIVE.  SECTION 14 PROVIDED: 

"UPON THE FINAL AND COMPLETE WITHDRAWAL OF AMERICAN SOVEREIGNTY OVER
THE PHILIPPINE ISLANDS THE IMMIGRATION LAWS OF THE UNITED STATES
(INCLUDING ALL THE PROVISIONS THEREOF RELATING TO PERSONS INELIGIBLE TO
CITIZENSHIP) SHALL APPLY TO PERSONS WHO WERE BORN IN THE PHILIPPINE
ISLANDS TO THE SAME EXTENT AS IN THE CASE OF OTHER FOREIGN COUNTRIES." 
48 STAT. 464, 48 U.S.C. (1946 ED.)  SEC.  1244. 

THE COURT OF APPEALS HELD THAT THE PETITIONER LOST HIS STATUS AS A
NATIONAL WHEN THE UNITED STATES RELINQUISHED ITS SOVEREIGNTY OVER THE
ISLANDS ON JULY 4, 1946, AND THAT THIS OCCURRED REGARDLESS OF HIS
RESIDENCE IN THE CONTINENTAL UNITED STATES ON THAT DATE.  (FN9) 

THE PETITIONER ARGUES THAT HIS STATUS AS A NATIONAL, ACQUIRED AT
BIRTH UNDER THE TREATY AND THE 1902 STATUTE, BEARS SUCH CLOSE
RELATIONSHIP TO THE CONSTITUTIONALLY SECURED BIRTHRIGHT OF CITIZENSHIP
ACQUIRED BY THE AMERICAN-BORN, THAT ITS DIVESTITURE SHOULD REST ONLY
UPON THE MOST EXPLICIT EXPRESSION OF CONGRESSIONAL INTENTION.  IN THE
INDEPENDENCE ACT, THE CONGRESS GRANTED FULL AND COMPLETE INDEPENDENCE
TO THE ISLANDS, AND NECESSARILY SEVERED THE OBLIGATION OF PERMANENT
ALLEGIANCE OWED BY FILIPINOS WHO WERE NATIONALS OF THE UNITED STATES. 
ANYTHING LESS THAN THE SEVERANCE OF THE TIES FOR ALL FILIPINOS,
REGARDLESS OF RESIDENCE IN OR OUT OF THE CONTINENTAL UNITED STATES,
WOULD NOT HAVE FULFILLED OUR LONG-STANDING NATIONAL POLICY TO GRANT
INDEPENDENCE TO THE PHILIPPINE PEOPLE.  SEE HOOVEN & ALLISON CO. V.
EVATT, 324 U.S. 652, 674-678, 692.  SECTION 14 OF THE INDEPENDENCE ACT
IN CLEAR LANGUAGE APPLIES "TO PERSONS WHO WERE BORN IN THE PHILIPPINE
ISLANDS."   THIS LANGUAGE DEMONSTRATES, AND WE HOLD, AS DID THE COURTS
BELOW, THAT PERSONS BORN IN THE ISLANDS, AND WHO THEREBY WERE NATIONALS
OF THE UNITED STATES, BECAME ALIENS ON JULY 4, 1946, REGARDLESS OF
PERMANENT RESIDENCE IN THE CONTINENTAL UNITED STATES ON THAT DATE. 

THE PETITIONER CONTENDS THAT, BECAUSE HE WAS ADMITTED FOR PERMANENT
RESIDENCE AT THE TIME THE ISLANDS WERE A TERRITORY OF THE UNITED
STATES, HE DID NOT ENTER FROM A FOREIGN COUNTRY AND THEREFORE CANNOT BE
AN ALIEN WITHIN THE PURVIEW OF THE 1931 ACT.  HE RELIES ON BARBER V.
GONZALES, 347 U.S. 637, WHERE THIS COURT HELD THAT A FILIPINO ADMITTED
FOR PERMANENT RESIDENCE IN 1930 WAS NOT DEPORTABLE UNDER SEC. 19(A) OF
THE IMMIGRATION ACT OF 1917 AS AN ALIEN SENTENCED FOR CERTAIN CRIMES
"COMMITTED  ...  AFTER ENTRY."  THE WORD "ENTRY" WAS HELD TO BE
SIGNIFICANT OF A CONGRESSIONAL PURPOSE TO LIMIT DEPORTATION UNDER SEC.
19(A) TO ALIENS ARRIVING "FROM SOME FOREIGN PORT OR PLACE," A
DESCRIPTION WHICH DID NOT FIT A TERRITORY BELONGING TO THE UNITED
STATES.  BUT THE 1931 ACT DIFFERS FROM THE 1917 ACT BECAUSE IT IS
SILENT AS TO WHETHER "ENTRY" FROM A FOREIGN COUNTRY IS A CONDITION OF
DEPORTABILITY.  BY ITS TERMS, THE 1931 ACT APPLIES TO "  ...  ANY ALIEN
...  WHO, AFTER  ...  FEBRUARY 18, 1931, SHALL BE CONVICTED  ...  " OF
A FEDERAL NARCOTICS OFFENSE.  IT FOLLOWS THAT THE HOLDING IN GONZALES
IS NOT APPLICABLE. 

THE PETITIONER ARGUES THAT THE REQUIREMENT OF "ENTRY," AS CONSTRUED
IN GONZALES, WAS INCORPORATED INTO THE 1931 ACT BY THE PROVISION THAT
DEPORTATION SHALL BE ACCOMPLISHED "IN MANNER PROVIDED IN SECTIONS 19
AND 20" OF THE IMMIGRATION ACT OF 1917.  (FN10)  WE HOLD THAT THE
REFERENCE TO THE "MANNER PROVIDED" IN THOSE SECTIONS DRAWS INTO THE
1931 ACT ONLY THE PROCEDURAL STEPS FOR SECURING DEPORTATION SET FORTH
IN THOSE SECTIONS.  BUGAJEWITZ V. ADAMS, 228 U.S. 585.  THE CONGRESS
ADOPTED THESE PROCEDURES BY REFERENCE INSTEAD OF SPELLING THEM OUT IN
THE 1931 ACT.  (FN11) 

THE PETITIONER URGES FINALLY THAT THE REQUIREMENT OF "ENTRY" IS
IMPLICIT IN THE 1931 ACT.  CITING FONG YUE TING V. UNITED STATES, 149
U.S. 698, HE ARGUES THAT THE BOUNDS OF THE POWER TO DEPORT ALIENS ARE
CIRCUMSCRIBED BY THE BOUNDS OF THE POWER TO EXCLUDE THEM, AND THAT THE
POWER TO EXCLUDE EXTENDS ONLY TO "FOREIGNERS" AND DOES NOT EMBRACE
FILIPINOS ADMITTED FROM THE ISLANDS WHEN THEY WERE A TERRITORY OF THE
UNITED STATES.  IT IS TRUE THAT FILIPINOS WERE NOT EXCLUDABLE FROM THE
COUNTRY UNDER ANY GENERAL STATUTE RELATING TO THE EXCLUSION OF
"ALIENS."  SEE GONZALES V. WILLIAMS, 192 U.S. 1, 12-13; TOYOTA V.
UNITED STATES, 268 U.S. 402, 411. 

BUT THE FALLACY IN THE PETITIONER'S ARGUMENT IS THE ERRONEOUS
ASSUMPTION THAT CONGRESS WAS WITHOUT POWER TO LEGISLATE THE EXCLUSION
OF FILIPINOS IN THE SAME MANNER AS "FOREIGNERS."  THIS COURT HAS HELD
THAT "  ...  THE POWER TO ACQUIRE TERRITORY BY TREATY IMPLIES NOT ONLY
THE POWER TO GOVERN SUCH TERRITORY, BUT TO PRESCRIBE UPON WHAT TERMS
THE UNITED STATES WILL RECEIVE ITS INHABITANTS, AND WHAT THEIR STATUS
SHALL BE  ... ."  DOWNES V. BIDWELL, 182 U.S. 244, 279.  (FN12)
CONGRESS NOT ONLY HAD, BUT EXERCISED, THE POWER TO EXCLUDE FILIPINOS IN
THE PROVISION OF SEC. 8(A)(1) OF THE INDEPENDENCE ACT, WHICH, FOR THE
PERIOD FROM 1934 TO 1946, PROVIDED: 

"FOR THE PURPOSES OF THE IMMIGRATION ACT OF 1917, THE IMMIGRATION ACT
OF 1924 (EXCEPT SECTION 13(C)), THIS SECTION, AND ALL OTHER LAWS OF THE
UNITED STATES RELATING TO THE IMMIGRATION, EXCLUSION, OR EXPULSION OF
ALIENS, CITIZENS OF THE PHILIPPINE ISLANDS WHO ARE NOT CITIZENS OF THE
UNITED STATES SHALL BE CONSIDERED AS IF THEY WERE ALIENS.  FOR SUCH
PURPOSES THE PHILIPPINE ISLANDS SHALL BE CONSIDERED AS A SEPARATE
COUNTRY AND SHALL HAVE FOR EACH FISCAL YEAR A QUOTA OF FIFTY  ... ."
48 STAT. 462, 48 U.S.C. (1934 ED.)  SEC.  1238. 

THE 1931 ACT PLAINLY COVERS THE SITUATION OF THE PETITIONER, WHO WAS
AN ALIEN, AND WHO WAS CONVICTED OF A FEDERAL NARCOTICS OFFENSE.  CF.
UNITED STATES EX REL. EICHENLAUB V. SHAUGHNESSY, 338 U.S. 521.  WE
THEREFORE CONCLUDE THAT THE PETITIONER WAS DEPORTABLE AS AN ALIEN UNDER
THAT ACT.  THE JUDGMENT IS AFFIRMED. 

FN1  THE ACT OF FEBRUARY 18, 1931, AS AMENDED, PROVIDED: 

"  ...  ANY ALIEN (EXCEPT AN ADDICT WHO IS NOT A DEALER IN, OR
PEDDLER OF, ANY OF THE NARCOTIC DRUGS MENTIONED IN THIS ACT) WHO, AFTER
...  FEBRUARY 18, 1931, SHALL BE CONVICTED FOR VIOLATION OF OR
CONSPIRACY TO VIOLATE ANY STATUTE OF THE UNITED STATES OR OF ANY STATE,
TERRITORY, POSSESSION, OR OF THE DISTRICT OF COLUMBIA, TAXING,
PROHIBITING, OR REGULATING THE MANUFACTURE, PRODUCTION, COMPOUNDING,
TRANSPORTATION, SALE, EXCHANGE, DISPENSING, GIVING AWAY, IMPORTATION,
OR EXPORTATION OF OPIUM, COCA LEAVES, HEROIN, MARIHUANA, OR ANY SALT,
DERIVATIVE, OR PREPARATION OF OPIUM OR COCA LEAVES, SHALL BE TAKEN INTO
CUSTODY AND DEPORTED IN MANNER PROVIDED IN SECTIONS 19 AND 20 OF THE
ACT OF FEBRUARY 5, 1917, ENTITLED 'AN ACT TO REGULATE THE IMMIGRATION
OF ALIENS TO, AND THE RESIDENCE OF ALIENS IN, THE UNITED STATES.'"  46
STAT. 1171, AS AMENDED, 54 STAT. 673, 8 U.S.C. (1946 ED.)  SEC.  156A. 

FN2  234 F.2D 904. 

FN3 352 U.S. 906. 

FN4  30 STAT. 1754. 

FN5  ID., AT 1759. 

FN6  32 STAT. 691, 692; COMPARE 39 STAT. 545, 546. 

FN7  COMPARE SEC. 101 OF THE NATIONALITY ACT OF 1940, WHICH DEFINES
THE TERM "NATIONAL" AS FOLLOWS: 

"(A)  THE TERM 'NATIONAL' MEANS A PERSON OWING PERMANENT ALLEGIANCE
TO A STATE. 

"(B)  THE TERM 'NATIONAL OF THE UNITED STATES' MEANS  ...  (2) A
PERSON WHO, THOUGH NOT A CITIZEN OF THE UNITED STATES, OWES PERMANENT
ALLEGIANCE TO THE UNITED STATES.  IT DOES NOT INCLUDE AN ALIEN."  54
STAT. 1137, 8 U.S.C. (1946 ED.)  SEC.  501. 

FN8  PRESIDENTIAL PROCLAMATION NO. 2695, 60 STAT. 1352, 11 FED. REG.
7517; PRESIDENTIAL PROCLAMATION NO. 2696, 60 STAT. 1353, 11 FED. REG.
7517. 

FN9  THE COURT OF APPEALS FOR THE NINTH CIRCUIT HAS CONSISTENTLY
FOLLOWED THIS PRINCIPLE.  E.G., RESURRECCION-TALAVERA V. BARBER, 231
F.2D 524; GONZALES V. BARBER, 207 F.2D 398, AFF'D ON OTHER GROUNDS, 347
U.S. 637; MANGAOANG V. BOYD, 205 F.2D 553; CABEBE V. ACHESON, 183 F.2D
795; CF. BANEZ V. BOYD, 236 F.2D 934. 

FN10  THE "MANNER PROVIDED" IN SEC. 19 OF THE IMMIGRATION ACT OF
1917, 39 STAT. 889, AS AMENDED, 8 U.S.C. (1946 ED.)  SEC.  155, WAS
"UPON THE WARRANT OF THE ATTORNEY GENERAL."  SECTION 20, 39 STAT. 890,
AS AMENDED, 8 U.S.C. (1946 ED., SUPP. IV) SEC. 156, RELATED TO PORTS TO
WHICH ALIENS ARE TO BE DEPORTED, COSTS OF DEPORTATION AND OTHER
DETAILS.  THE ATTORNEY GENERAL IS REQUIRED BY THAT SECTION TO DEPORT
"TO THE COUNTRY SPECIFIED BY THE ALIEN, IF IT IS WILLING TO ACCEPT HIM
INTO ITS TERRITORY."  IN THE ADMINISTRATIVE PROCEEDINGS THE PETITIONER
SPECIFIED THE PHILIPPINE ISLANDS. 

FN11  IT IS NOT CONTENDED THAT THE PROCEDURES SPECIFIED IN SECS. 19
AND 20 WERE NOT FOLLOWED IN THIS CASE. 

FN12  SEE MAGOON, REPORTS (1902), 120: 

"THE INHABITANTS OF THE ISLANDS ACQUIRED BY THE UNITED STATES DURING
THE LATE WAR WITH SPAIN, NOT BEING CITIZENS OF THE UNITED STATES, DO
NOT POSSESS THE RIGHT OF FREE ENTRY INTO THE UNITED STATES.  THAT RIGHT
IS APPURTENANT TO CITIZENSHIP.  THE RIGHTS OF IMMIGRATION INTO THE
UNITED STATES BY THE INHABITANTS OF SAID ISLANDS ARE NO MORE THAN THOSE
OF ALIENS OF THE SAME RACE COMING FROM FOREIGN LANDS." 

ILLUSTRATIVE OF THE SCOPE OF THE CONGRESSIONAL POWER IS THE TREATMENT
AFFORDED PUERTO RICANS WHO WERE FIRST NATIONALS, 31 STAT. 77, 79, AND
WHO LATER BECAME CITIZENS, 39 STAT.  951, 953.  SEE ALSO DOWNES V.
BIDWELL, 182 U.S. 244, 280, AS TO THE STATUS OF THE INHABITANTS OF
OTHER TERRITORIES ACQUIRED BY THE UNITED STATES. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE ACT OF FEBRUARY 18, 1931, 8 U.S.C. (1946 ED.)  SEC.  156A,
PROVIDED FOR THE DEPORTATION OF "ANY ALIEN" CONVICTED OF VIOLATING A
NARCOTIC LAW AFTER THE DATE OF THE ACT.  PETITIONER IS A CITIZEN OF THE
PHILIPPINES AND IS THEREFORE AN ALIEN BY VIRTUE OF THE PHILIPPINE
INDEPENDENCE ACT, 48 STAT. 456, C. 84, SEC. 8; AND HE WAS CONVICTED OF
NARCOTICS VIOLATION IN 1951, WHICH WAS AFTER HIS STATUS HAD BEEN
CHANGED FROM A NATIONAL TO AN ALIEN.  IF THE 1931 ACT IS TO READ
LITERALLY, THE DEPORTATION OF THIS FILIPINO IS WARRANTED.  BUT TO READ
THE ACT LITERALLY IS, I THINK, TO MISS ITS REAL IMPORT. 

FIRST.  IN 1931 THE ONLY ALIENS HERE WERE THOSE WHO HAD MADE AN
"ENTRY" INTO THIS COUNTRY.  THE CONDITION OF "ENTRY" SEEMS, THEREFORE,
NECESSARILY IMPLICIT IN THE 1931 ACT.  WITHOUT THAT CONDITION THE ACT
WOULD HAVE HAD NO APPLICATION WHATSOEVER AT THE TIME OF ITS PASSAGE,
FOR AT THAT TIME EVERY "ALIEN" WAS A NATIONAL OF ANOTHER COUNTRY WHO
HAD "ENTERED" HERE.  WHILE THE PHILIPPINE INDEPENDENCE ACT LATER MADE
FILIPINOS "ALIENS," THAT CLASS OF "ALIENS" WHO WERE RESIDENT HERE AT
THE TIME NEVER MADE AN "ENTRY" INTO THIS COUNTRY.  AS BARBER V.
GONZALES, 347 U.S. 637, HOLDS, THEY WERE NATIONALS TO WHOM THE CONCEPT
OF "ENTRY" WAS INAPPLICABLE. 

SECOND.  THE 1931 ACT PROVIDES THAT THE OFFENDING ALIEN SHALL BE
DEPORTED "IN THE MANNER" PROVIDED IN SECS. 19 AND 20 OF THE 1917 ACT, 8
U.S.C. (1946 ED.)  SECS.  155, 156.  THE WORDS "IN THE MANNER" ARE SAID
TO REFER TO THE MEANS FOR SECURING DEPORTATION WHICH, BY SEC. 19(A) OF
THE 1917 ACT, ARE DESCRIBED AS "UPON THE WARRANT OF THE ATTORNEY
GENERAL."  BUGAJEWITZ V. ADAMS, 228 U.S. 585, 591, CONSTRUED THE
LANGUAGE OF AN EARLIER DEPORTATION ACT IN THAT WAY.  IT HELD THAT "IN
THE MANNER PROVIDED" IN THAT ACT MEANT "THE MEANS FOR SECURING
DEPORTATION."  YET IT IS DIFFICULT FOR ME TO SAY THAT BY THAT RULING
"IN THE MANNER" BECAME WORDS OF ART IN LEGISLATIVE DRAFTING.  THE
BUGAJEWITZ CASE INVOLVED A STATUTE WITH A VERY SPECIAL LEGISLATIVE
HISTORY.  THE WORDS "IN THE MANNER PROVIDED" HAD BEEN SUBSTITUTED FOR
"AS PROVIDED."  SO IT WAS APPARENT THAT CONGRESS BY THE AMENDMENT HAD
NARROWED THE MEANING.  THERE IS NO SUCH SPECIAL LEGISLATIVE HISTORY
HERE.  THE WORDS "IN THE MANNER" SEEM TO ME TO BE SYNONYMOUS IN THIS
SETTING WITH "AS PROVIDED" OR "UNDER THE CONDITIONS OF."  AND THE
CONDITION OF THE 1917 ACT MOST RELEVANT HERE IS A CRIME COMMITTED
"AFTER ENTRY."    NO MATTER HOW THE CASE IS VIEWED, THE 1931 ACT IS
APPLICABLE ONLY TO ALIENS WHO HAD MADE AN "ENTRY" IN THIS COUNTRY. 

THIS FILIPINO CAME TO THE UNITED STATES IN 1930 AND HE HAS NEVER LEFT
HERE.  IF THE SPIRIT OF THE 1931 ACT IS TO BE OBSERVED, HE SHOULD NOT
BE LUMPED WITH ALL OTHER "ALIENS" WHO MADE AN "ENTRY."  THE FILIPINO
ALIEN, WHO CAME HERE WHILE HE WAS A NATIONAL, STANDS IN A CLASS BY
HIMSELF AND SHOULD REMAIN THERE, UNTIL AND UNLESS CONGRESS EXTENDS
THESE HARSH DEPORTATION MEASURES TO HIS CLASS. 
..END :














BALTIMORE & OHIO RAILWAY CO. V. JACKSON 353 U.S. 325 


NO. 370.  ARGUED MARCH 28, APRIL 1, 1957 - DECIDED MAY 13, 1957 - 98
U.S. APP. D.C. 169, 233 F.2D 660, AFFIRMED. 


IN THIS SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, A SECTION
FOREMAN OF A RAILROAD WAS AWARDED DAMAGES FOR INJURIES SUSTAINED WHILE
OPERATING A GASOLINE-POWERED MOTOR TRACK CAR PULLING A HAND CAR HAULING
MATERIAL, TOOLS AND EQUIPMENT.  EACH CAR HAD ONLY FOUR WHEELS.  THE
CARS WERE FASTENED TOGETHER BY A PIN, NOT A COUPLER.  THE MOTOR TRACK
CAR HAD ONLY HAND BRAKES AND THE HAND CAR HAD NO BRAKES.  THERE WAS
EVIDENCE THAT THE ACCIDENT RESULTED FROM WANT OF ADEQUATE BRAKES FOR
THE USE TO WHICH THE CARS WERE BEING PUT.  THE SOLE ISSUE BEFORE THIS
COURT WAS WHETHER SUCH VEHICLES, WHEN USED IN THE MANNER HERE INVOLVED,
ARE WITHIN THE COVERAGE OF THE SAFETY APPLIANCE ACT.  HELD: 

1.  THE MOTOR TRACK CAR AND HAND CAR, WHEN USED IN THE MANNER EMPLOYED
HERE, MUST BE EQUIPPED IN ACCORDANCE WITH THE REQUIREMENTS OF THE
SAFETY APPLIANCE ACT.  PP. 328-333. 

(A)  WHEN A RAILROAD PUTS A MOTOR TRACK CAR TO LOCOMOTIVE USE IN
PULLING A HAND CAR USED TO HAUL MATERIAL, TOOLS AND EQUIPMENT, THE
COMMANDS OF THE ACTS MUST BE OBEYED.  PP.  329-330. 

(B)  THAT, FOR 60 YEARS, THE INTERSTATE COMMERCE COMMISSION HAD NOT
REQUIRED SUCH CARS TO BE EQUIPPED IN ACCORDANCE WITH THE ACTS IS NOT A
BINDING ADMINISTRATIVE INTERPRETATION THAT CONGRESS DID NOT INTEND
THESE CARS TO COME WITHIN THE PURVIEW OF THE ACTS WHEN USED IN THE
MANNER HERE INVOLVED.  PP. 330-331. 

(C)  WHETHER THE SAFETY APPLIANCE ACTS SHOULD APPLY TO SUCH CARS IS A
MATTER OF POLICY FOR CONGRESS TO DECIDE, AND IT MADE THE ACTS
APPLICABLE ALL-INCLUSIVELY TO "ALL TRAINS, LOCOMOTIVES, TENDERS, CARS,
AND SIMILAR VEHICLES."  PP. 331-333. 

2.  THOUGH THEY HAD ONLY FOUR WHEELS EACH, THESE CARS WERE NOT
EXEMPTED FROM THE ACTS BY SEC. 6, WHICH EXEMPTS CERTAIN "TRAINS
COMPOSED OF FOUR-WHEEL CARS."  P. 333. 

BALTIMORE & OHIO RAILWAY CO. V. JACKSON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR DAMAGES ARISING FROM AN INJURY SUFFERED BY A
THAT WAS TOWING A PUSH TRUCK ON PETITIONER'S TRACKS.  IT WAS BROUGHT
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  THE SOLE QUESTION IS
WHETHER SUCH VEHICLES WHEN USED IN THE MANNER HERE ARE WITHIN THE
COVERAGE OF THE SAFETY APPLIANCE ACTS.  (FN1)  THE PETITIONER CONTENDS
THAT NEITHER VEHICLE COMES WITHIN THE GENERAL COVERAGE OF THE ACTS;
AND, IN THE ALTERNATIVE IF THE VEHICLES ARE INCLUDED, THAT THEY ARE
EXEMPTED AS "FOUR WHEEL CARS" UNDER SEC. 6 OF THE ACTS.  (FN2) 

BOTH THE TRIAL COURT AND THE COURT OF APPEALS HAVE DECIDED THAT THE
VEHICLES INVOLVED HERE ARE INCLUDED WITHIN THE COVERAGE OF THE SAFETY
APPLIANCE ACTS AND THAT NEITHER FALLS WITHIN ANY EXEMPTION CONTAINED
THEREIN.  THE CASE REACHES US ON CERTIORARI, 352 U.S. 889.  WE AGREE
WITH THE TWO-COURT INTERPRETATION OF THE ACTS AS APPLIED TO THE FACTS
HERE INVOLVED. 

THE RESPONDENT WAS INJURED OVER FIVE YEARS AGO.  FOR 39 YEARS HE HAD
BEEN A SECTION FOREMAN OF TRACK MAINTENANCE FOR PETITIONER.  HE AND THE
CREW OVER WHICH HE HAD SUPERVISION WERE RESPONSIBLE FOR THE MAINTENANCE
AND REPAIR OF A SECTION OF TRACK BETWEEN WARING AND DURWOOD, MARYLAND. 
THEY USED IN THEIR WORK A GASOLINE-MOTOR-POWERED TRACK CAR EQUIPPED
WITH BELT DRIVE AND A HAND BRAKE.  THE CAR COULD CARRY AS MANY AS 12
MEN AND THEIR TOOLS.  AT VARIOUS TIMES A PUSH TRUCK OR HAND CAR WAS
COUPLED BY A PIN TO THE MOTOR TRACK CAR AND WAS TOWED BY IT TO THE
SCENE OF THE WORK.  THE HAND CAR WEIGHED ABOUT 800 POUNDS UNLOADED, HAD
A 5-TON CARRYING CAPACITY, AND HAD NO BRAKES.  SOMETIMES IT CARRIED A
LOAD OF MATERIAL AND OTHER TIMES ONLY EQUIPMENT AND TOOLS.  EACH OF
THESE CARS WAS EQUIPPED WITH FOUR WHEELS AND WAS CAPABLE OF BEING
REMOVED FROM THE RAILS BY A CREW OF MEN. 

ON THE OCCASION IN QUESTION RESPONDENT AND A CREW OF TWO MEN,
PURSUANT TO ORDERS, HAD HAULED ABOUT A TON OF COAL VIA THE MOTOR TRACK
CAR AND HAND CAR FROM GAITHERSBURG TO THE STATIONMASTER AT WASHINGTON
GROVE, A STATION NEAR THE SCENE OF THEIR ROADBED WORK ON THAT DAY.  THE
COAL WAS PLACED ON THE HAND CAR WHICH WAS PULLED ALONG THE TRACKS BY
THE MOTOR CAR.  THE TWO VEHICLES ALSO CARRIED TOOLS, A WHEELBARROW, AND
OTHER EQUIPMENT, AS WELL AS THE RESPONDENT AND HIS CREW.  AFTER
UNLOADING THE COAL THEY PROCEEDED A SHORT DISTANCE BEYOND THE
WASHINGTON GROVE STATION TO WORK ON A SECTION OF THE WESTBOUND TRACK. 
THERE THEY REMOVED THE VEHICLES FROM THE TRACK AND WORKED THAT SECTION
OF THE RAILS UNTIL ABOUT 4 P.M.  THEY THEN REPLACED THE VEHICLES ON THE
TRACKS, FASTENED THEM TOGETHER, AND BEGAN THE RETURN TRIP TO THE YARDS
AT GAITHERSBURG.  ON APPROACHING THE WASHINGTON GROVE STATION AT A
SPEED OF FROM 5 TO 10 MILES PER HOUR THE VEHICLES STRUCK A LARGE DOG
AND DERAILED, THROWING THE RESPONDENT INTO A DITCH AND CAUSING HIS
INJURIES.  THE UNCONTRADICTED EVIDENCE WAS THAT RESPONDENT APPLIED THE
HAND BRAKE ON THE MOTOR TRACK CAR IMMEDIATELY UPON SEEING THE DOG AND
THE CARS SKIDDED ON WET TRACKS ABOUT 39 FEET BEFORE THE IMPACT. 
RESPONDENT FURTHER TESTIFIED THAT THE MOTOR TRACK CAR ALONE, WITHOUT
THE HAND CAR ATTACHED, COULD HAVE BEEN STOPPED UNDER THE SAME
CONDITIONS WITHIN SIX TO EIGHT FEET. 

RESPONDENT BROUGHT HIS ACTION AGAINST THE RAILROAD CLAIMING THAT (1)
THE PETITIONER WAS NEGLIGENT IN DIRECTING HIM TO OPERATE A MOTOR TRACK
CAR AND PUSH TRUCK WITHOUT SUFFICIENT BRAKING POWER, AND IN REQUIRING
HIM TO PULL THE PUSH TRUCK OVER WET, SLIPPERY RAILS WHEN THE TRUCK WAS
NOT EQUIPPED WITH BRAKES, AND (2) THE INJURY WAS PROXIMATELY CAUSED BY
PETITIONER'S NONCOMPLIANCE WITH THE REQUIREMENTS OF THE SAFETY
APPLIANCE AND BOILER INSPECTION ACTS.  THE DISTRICT COURT RULED AND
INSTRUCTED THE JURY THAT THE PROVISIONS OF THE SAFETY APPLIANCE ACTS
INCLUDED WITHIN THEIR COVERAGE THE VEHICLES IN QUESTION.  THE ISSUES IN
BOTH CAUSES OF ACTION WERE SUBMITTED TO THE JURY, WHICH RETURNED WITH A
VERDICT FOR RESPONDENT ON "THE ISSUES AFORESAID."  THE APPEAL IN THE
COURT OF APPEALS WAS DIRECTED ONLY TO THE SECOND CAUSE OF ACTION
CONCERNING THE APPLICABILITY OF THE SAFETY APPLIANCE ACTS.  THAT COURT
AFFIRMED, 98 U.S. APP. D.C. 169, 233 F.2D 660, AND AS HAS ALREADY BEEN
INDICATED, WE ARE FACED HERE ONLY WITH THE PROBLEM OF THE COVERAGE OF
THE SAFETY APPLIANCE ACTS. 

THE POWER OR TRAIN BRAKE PROVISIONS OF THE SAFETY APPLIANCE ACTS
APPLY TO THE MOTOR TRACK CAR AND THE COUPLING AND BRAKE REQUIREMENTS TO
THE HAND CAR WHEN THEY ARE EMPLOYED IN THE MANNER HERE INVOLVED.  IF
USED SEPARATELY, THOUGH WE DO NOT PASS ON THE QUESTION, IT MAY WELL BE
THAT ENTIRELY DIFFERENT SECTIONS OF THE ACTS MIGHT APPLY TO EACH OF THE
VEHICLES.  BUT HERE THE HAND CAR WAS NOT OPERATED BY HAND AS WAS
ORIGINALLY INTENDED.  ON THE CONTRARY, IT WAS FASTENED BY A PIN - NOT A
COUPLER - TO A MOTOR TRACK CAR, A SELF-PROPELLED PIECE OF EQUIPMENT,
AND WAS HAULED WITH ITS CARGO TO ITS DESTINATION ON THE TRACKS OF
PETITIONER.  THE HAND CAR HAD NO BRAKES, ALTHOUGH THE ACTS SPECIFICALLY
REQUIRE "ANY CAR" TO BE EQUIPPED WITH A HAND BRAKE.  (FN3)  IT WAS
BEING USED FOR HAULING PURPOSES.  FURTHERMORE, THE MOTOR TRACK CAR,
INSTEAD OF BEING USED SOLELY TO CARRY MEN AND TOOLS TO THEIR PLACE OF
WORK, WAS USED TO PULL OR TOW ANOTHER CAR - ALBEIT A HAND CAR.  IT HAD
NO POWER OR TRAIN BRAKES BUT WAS EQUIPPED WITH A SIMPLE HAND BRAKE
DESIGNED FOR ITS INDIVIDUAL OPERATION.  THE BRAKE WAS WHOLLY
INSUFFICIENT FOR THE USE TO WHICH THE RAILROAD PUT THE VEHICLES. 

WE BELIEVE THAT THE CONTROLLING FACTOR IS THE NATURE OF THE
EMPLOYMENT OF THE VEHICLES IN THE RAILROAD'S SERVICE, THAT IS THE TYPE
OF OPERATION FOR WHICH THEY ARE BEING USED.  HERE AT THE TIME OF THE
INJURY IT IS ADMITTED THAT PETITIONER WAS PUTTING THE MOTOR TRACK CAR
TO LOCOMOTIVE USES IN PULLING A HAND CAR USED TO HAUL MATERIAL, TOOLS,
AND EQUIPMENT.  IN THE LIGHT OF THE PRIME PURPOSE OF THE SAFETY
APPLIANCE ACTS, I.E., "THE PROTECTION OF EMPLOYEES AND OTHERS BY
REQUIRING THE USE OF SAFE EQUIPMENT," LILLY V. GRAND TRUNK R. CO., 317
U.S. 481, 486 (1943), WHEN THE RAILROAD USES THIS TYPE OF EQUIPMENT IN
THIS MANNER - REGARDLESS OF THE LABEL IT PLACES ON THE VEHICLES - THE
COMMANDS OF THE ACTS MUST BE OBEYED.  THE OPERATION AS CONDUCTED WHEN
THE RESPONDENT WAS INJURED, WITH A MOTOR TRACK CAR EQUIPPED WITH
NEITHER POWER NOR TRAIN BRAKES PULLING AN ATTACHED HAND CAR WITH
NEITHER AN AUTOMATIC COUPLER NOR HAND BRAKE, WAS IN DEFINACE OF THE
REQUIREMENTS OF THE ACTS.  SEE 45 U.S.C. SECS. 1-8.  THIS IS NOT TO SAY
THAT THESE VEHICLES, EVEN WHEN USED AS HEREIN DESCRIBED, MUST BE
EQUIPPED WITH DEVICES NOT ADAPTABLE TO THEIR SAFE OPERATION.  AS WAS
SAID IN SOUTHERN R. CO. V. CROCKETT, 234 U.S. 725 (1914):

"WE DEEM THE TRUE INTENT AND MEANING TO BE THAT THE PROVISIONS AND
REQUIREMENTS RESPECTING TRAIN BRAKES, AUTOMATIC COUPLERS, GRAB IRONS,
AND THE HEIGHT OF DRAW-BARS SHALL BE EXTENDED TO ALL RAILROAD VEHICLES
...  SO FAR AS THE RESPECTIVE SAFETY DEVICES AND STANDARDS ARE CAPABLE
OF BEING INSTALLED UPON THE RESPECTIVE VEHICLES."  ID., AT 737-738. 

IT IS SAID THAT THERE IS NO PLACE ON THE VEHICLES IN QUESTION HERE
FOR A GRAB IRON OR A HANDHOLD AND THAT POWER BRAKES MIGHT WELL INCREASE
THE HAZARDS OF THEIR OPERATION.  THIS MAY BE TRUE, BUT IF THESE
VEHICLES ARE TO BE USED IN A MANNER SUCH AS HERE, THE COMMISSION
THROUGH THE PROMULGATION OF STANDARDS OR REGULATIONS COVERING SUCH
EQUIPMENT SHOULD ADAPT THE SAFETY REQUIREMENTS OF THE ACTS TO THE SAFE
USE OF SUCH VEHICLES AND THUS PROTECT EMPLOYEES AND THE PUBLIC FROM THE
HAZARDS OF THEIR OPERATION. 

IT IS CONTENDED THAT, SINCE THE COMMISSION HAS FOR OVER 60 YEARS
CONSIDERED MAINTENANCE-OF-WAY VEHICLES NOT SUBJECT TO THE ACTS, THIS
CONSISTENT ADMINISTRATIVE INTERPRETATION IS PERSUASIVE EVIDENCE THAT
THE CONGRESS NEVER INTENDED TO INCLUDE THEM WITHIN ITS COVERAGE.  IT IS
TRUE THAT LONG ADMINISTRATIVE PRACTICE IS ENTITLED TO WEIGHT, DAVIS V.
MANRY, 266 U.S. 401, 405 (1925), BUT HERE THERE HAS BEEN NO EXPRESSED
ADMINISTRATIVE DETERMINATION OF THE PROBLEM.  (FN4)  WE BELIEVE
PETITIONER OVERSPEAKS IN ELEVATING NEGATIVE ACTION TO POSITIVE
ADMINISTRATIVE DECISION.  IN OUR VIEW THE FAILURE OF THE COMMISSION TO
ACT IS NOT A BINDING ADMINISTRATIVE INTERPRETATION THAT CONGRESS DID
NOT INTEND THESE CARS TO COME WITHIN THE PURVIEW OF THE ACTS.  SEE
SHIELDS V. ATLANTIC COAST LINE R. CO., 350 U.S. 318, 321-322 (1956). 

THE FACT THAT THE COMMISSION HAS NOT SPONSORED LEGISLATION RATHER
INDICATES THAT IT THOUGHT THE PROBLEM TOO INSIGNIFICANT FOR
CONSIDERATION.  WE THINK THE COMMISSION EXPRESSES THIS VIEW IN ITS
AMICUS CURIAE BRIEF WHEN IT SAYS "THE NEEDS ARE FOR STRICT ENFORCEMENT
OF SOUND OPERATING RULES AND REGULATIONS RATHER THAN FOR AIR BRAKES,
AUTOMATIC COUPLERS AND THE OTHER DEVICES SPECIFIED IN THE SAFETY
APPLIANCE ACTS."  BUT THIS IS A MATTER OF POLICY FOR THE CONGRESS TO
DECIDE AND IT WROTE INTO THE SAFETY APPLIANCE ACTS THAT THEIR COVERAGE
EMBRACED "ALL TRAINS, LOCOMOTIVES, TENDER, CARS, AND SIMILAR
VEHICLES."  (FN5)  THIS PLAIN LANGUAGE COULD NOT HAVE BEEN MORE ALL
INCLUSIVE.  THIS COURT HAS CONSTRUED THE LANGUAGE OF THE ACT IN ITS
GENERIC SENSE.  IN JOHNSON V. SOUTHERN PACIFIC CO., 196 U.S. 1 (1904),
WITH REFERENCE TO THE MEANING OF THE WORD "CAR," THE COURT SAID:
"THERE IS NOTHING TO INDICATE THAT ANY PARTICULAR KIND OF CAR WAS
MEANT.  TESTED BY CONTEXT, SUBJECT MATTER AND OBJECT, 'ANY CAR' MEANT
ALL KINDS OF CARS RUNNING ON THE RAILS, INCLUDING LOCOMOTIVES."  ID.,
AT 15-16.  SEE ALSO SPOKANE & INLAND R. CO. V. CAMPBELL, 241 U.S. 497
(1916). 

WHILE THERE IS A PAUCITY OF CASES ON THE POINT, WITH NONE TO THE
CONTRARY OF OUR HOLDING HERE, AS EARLY AS 1934 IN HOFFMAN V. NEW YORK,
N.H.&H.R. CO., 74 F.2D 227, THE COURT OF APPEALS FOR THE SECOND CIRCUIT
HELD A HAND CAR OR PUSH TRUCK, IDENTICAL WITH THE ONE HERE INVOLVED,
AND A SMALL GASOLINE TRACTOR SUBJECT TO THE ACTS.  THE HAND CAR WAS
ATTACHED TO THE GASOLINE TRACTOR BY MEANS OF A HOOK (THOUGH THE ENGINE
HAD AN AUTOMATIC COUPLER ON ONE END) AND THE PETITIONER WAS INJURED
WHEN THE HOOK DISLODGED AND HE WAS PINNED BETWEEN THE CAR AND THE
LOCOMOTIVE.  THE COURT UNANIMOUSLY HELD THAT IF A HAND CAR "IS TO BE
OPERATED BY A LOCOMOTIVE (WHICH IT HELD THE GASOLINE TRACTOR TO BE),
RATHER THAN BY HAND, WE ARE NOT INCLINED TO DEPART FROM THE LITERAL
TERMS OF THE STATUTE AND DISPENSE WITH THE REQUIREMENT OF AN AUTOMATIC
COUPLER."  ID., AT 232.  THREE YEARS LATER THE REQUIREMENT OF THE ACTS
AS TO POWER OR TRAIN BRAKES WAS HELD APPLICABLE TO OTHER THAN STANDARD
EQUIPMENT IN UNITED STATES V. FT. WORTH & D.C.R. CO., 21 F. SUPP. 916. 
THERE A TRIAL COURT IN THE NORTHERN DISTRICT OF TEXAS HELD THAT WHERE A
LOCOMOTIVE CRANE WAS "USED TO HAUL CARS  ...  IT IS BEING USED FOR THE
PURPOSES FOR WHICH A LOCOMOTIVE IS USED AND IS A LOCOMOTIVE  ...
REGARDLESS OF WHATEVER ELSE IT MIGHT ALSO BE."  ID., AT 918.  IN 1955
THE SUPREME COURT OF FLORIDA UNANIMOUSLY HELD IN MARTIN V. JOHNSTON, 79
SO. 2D 419, THAT THE SAME TYPE MOTOR TRACK CAR AS IS INVOLVED HERE CAME
WITHIN THE TERMS OF THE ACTS.  THERE THE MOTOR TRACK CAR WAS BEING USED
ENTIRELY SEPARATELY AND INDEPENDENTLY FROM ANY OTHER VEHICLE.  THE
SAFETY ACTS REQUIRE ALL CARS TO BE EQUIPPED WITH "EFFICIENT HAND
BRAKES."  THE FAILURE OF THE BRAKES WAS THE CAUSE OF THE INJURY.  THE
COURT COMMENTED:  "THERE BEING AS MUCH REASON FOR REQUIRING THE MOTOR
CAR IN QUESTION TO BE EQUIPPED WITH EFFICIENT HANDBRAKES, TO INSURE ITS
SAFE OPERATION WHEN PROPELLED UNDER ITS OWN POWER, AS THERE IS FOR THE
REQUIREMENT THAT SUCH A CAR BE EQUIPPED WITH AUTOMATIC COUPLERS, WHERE
IT IS TO BE USED IN CONNECTION WITH A TRAIN MOVEMENT, WE HAVE THE VIEW
THAT THE SAFETY APPLIANCE ACTS ARE APPLICABLE AND THAT WE ARE NOT
AUTHORIZED TO DEPART FROM THE LITERAL TERMS OF THE STATUTE."  ID., AT
420. 

NOR DO WE FIND THAT SEC. 6 OF THE ACTS EXEMPTS THESE VEHICLES FROM
THE PROVISIONS OF THE ACTS.  THOUGH IT IS TRUE THAT THE CARS ARE OF THE
FOUR-WHEEL VARIETY, THEY ARE USED NEITHER IN COAL TRAINS NOR AS LOGGING
CARS.  AS THE COMMISSION POINTS OUT IN ITS AMICUS CURIAE BRIEF, THE
PROVISO OF SEC. 6 ORIGINALLY EXEMPTED "TRAINS COMPOSED OF FOUR-WHEEL
CARS OR ...  LOCOMOTIVES USED IN HAULING SUCH TRAINS," AND THE
LEGISLATIVE HISTORY SHOWS THAT THIS PROVISION WAS ENACTED SPECIFICALLY
TO EXEMPT COAL CARS.  24 CONG. REC. 1477.  THIS LANGUAGE WAS
INCORPORATED IN THE PHRASEOLOGY OF THE PRESENT SECTION WHICH ADMITTEDLY
THROUGH ERROR WAS THOUGHT TO APPLY TO THE EXEMPTION OF TRAINS COMPOSED
OF LOGGING CARS.  SEE H.R. REP. NO. 727, 54TH CONG., 1ST SESS.  THE
LEGISLATIVE HISTORY OF THE SECTION REVEALS BEYOND DOUBT THAT IT HAS NO
APPLICATION HERE. 

IN VIEW OF THE HISTORY AND PURPOSES OF THE SAFETY APPLIANCE ACTS, AND
THE LITERAL LANGUAGE USED BY THE CONGRESS THAT THEY EMBRACED "ANY CAR"
(FN6) AND "ANY LOCOMOTIVE ENGINE  ...  HAULING  ...  ANY CAR," (FN7)
TOGETHER WITH THE PRACTICAL NECESSITY OF AFFORDING SAFETY APPLIANCES TO
THOUSANDS OF RAILROAD MAINTENANCE EMPLOYEES, AS WELL AS THE PUBLIC, WE
CONCLUDE THAT THE MOTOR TRACK CAR AND HAND CAR WHEN USED BY THE
PETITIONER IN THE MANNER EMPLOYED HERE MUST BE EQUIPPED IN ACCORDANCE
WITH THE REQUIREMENTS OF THE SAFETY APPLIANCE ACTS.  AFFIRMED.    FN1
27 STAT. 531, AS AMENDED, 45 U.S.C. SECS. 1-16. 

FN2  27 STAT. 532, AS AMENDED, 29 STAT. 85, 62 STAT. 909, 45 U.S.C.
SEC. 6, PROVIDES IN PART: 

"THAT ANY SUCH COMMON CARRIER USING ANY LOCOMOTIVE ENGINE, RUNNING
ANY TRAIN, OR HAULING OR PERMITTING TO BE HAULED OR USED ON ITS LINE
ANY CAR IN VIOLATION OF ANY OF THE PROVISIONS OF THIS ACT, SHALL BE
LIABLE TO A PENALTY  ...  :  PROVIDED, THAT NOTHING IN THIS ACT
CONTAINED SHALL APPLY TO TRAINS COMPOSED OF FOUR-WHEEL CARS OR TO
TRAINS COMPOSED OF EIGHT-WHEEL STANDARD LOGGING CARS WHERE THE HEIGHT
OF SUCH CAR FROM TOP OF RAIL TO CENTER OF COUPLING DOES NOT EXCEED
TWENTY-FIVE INCHES, OR TO LOCOMOTIVES USED IN HAULING SUCH TRAINS WHEN
SUCH CARS OR LOCOMOTIVES ARE EXCLUSIVELY USED FOR THE TRANSPORTATION OF
LOGS." 

FN3  36 STAT. 298, 45 U.S.C. SEC. 11, PROVIDES IN PART: 

"  ...  IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF THIS ACT TO HAUL, OR PERMIT TO BE HAULED OR USED ON ITS
LINE ANY CAR SUBJECT TO THE PROVISIONS OF THIS ACT NOT EQUIPPED WITH
APPLIANCES PROVIDED FOR IN THIS ACT, TO WIT:  ALL CARS MUST BE EQUIPPED
WITH SECURE SILL STEPS AND EFFICIENT HAND BRAKES  ...  ." 

FN4  WE NOTE THAT IN 1953 THE INTERSTATE COMMERCE COMMISSION, IN A
PROCEEDING TO PRESCRIBE RULES GOVERNING INSPECTION OF ELECTRICALLY
OPERATED UNITS AND MULTIPLE-UNIT EQUIPMENT, HAS ITSELF DECLARED A "SELF
PROPELLED UNIT OF EQUIPMENT CAPABLE OF MOVING OTHER EQUIPMENT" TO BE A
LOCOMOTIVE UNDER THE ACT.  EX PARTE NO. 179, 297 I.C.C. 177, 192. 
WHILE THE PROCEEDING DID NOT INVOLVE MOTOR TRACK CARS, THE LANGUAGE OF
THE COMMISSION CASTS SOME LIGHT ON THAT PROBLEM.  THE COMMISSION
POINTED OUT THAT "THE LANGUAGE IN THE ACT IS ALL-INCLUSIVE, AND
CONSIDERING ITS PURPOSE  ...  THE WORDS 'ANY LOCOMOTIVE' AS USED IN
EQUIPMENT OF ANY CARRIER SUBJECT TO THE ACT  ...  .  APPEARANCE CLEARLY
CANNOT DETERMINE THE CLASSIFICATION INTO WHICH THIS TYPE OF EQUIPMENT
SHOULD BE PLACED."  ID., AT 191-192. 

FN5  32 STAT. 943, 45 U.S.C. SEC. 8. 

FN6  27 STAT. 531, 45 U.S.C. SEC. 2. 

FN7  27 STAT. 532, AS AMENDED, 45 U.S.C. SEC. 6. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE HARLAN
AND MR. JUSTICE WHITTAKER JOIN, DISSENTING. 

IN THIS FEDERAL EMPLOYERS' LIABILITY ACT SUIT, THE DISTRICT COURT
INSTRUCTED THE JURY THAT THE SAFETY APPLIANCE ACTS (FN1) REQUIRED THE
RAILROAD TO EQUIP A GASOLINE-DRIVEN MOTOR TRACK CAR WITH A TRAIN BRAKE
AND A PUSH TRUCK WITH A HAND BRAKE, AND THAT THE RAILROAD WAS LIABLE IF
ITS FAILURE TO FURNISH THIS EQUIPMENT CONTRIBUTED TO THE ACCIDENT.  THE
CORRECTNESS OF THIS INSTRUCTION PRESENTS THE ISSUE WHETHER THE SAFETY
APPLIANCE ACTS APPLY TO THESE SMALL MAINTENANCE-OF-WAY VEHICLES - THE
SUCCESSORS TO THE FAMILIAR HANDCARS OF YEARS AGO.  THE COURT APPROVES
THE INSTRUCTION, AND, IN DOING SO, IT HOLDS THAT A MOTOR CAR IS A
"LOCOMOTIVE," THAT A PUSH TRUCK IS A "CAR," AND THAT THE TWO COMBINED
ARE A "TRAIN" AS THOSE TERMS ARE USED IN THE SAFETY APPLIANCE ACTS.  I
DO NOT FIND IN THE LANGUAGE OF THE ACTS, THEIR BACKGROUND AND
LEGISLATIVE HISTORY, OR IN THE LONG-STANDING ADMINISTRATIVE PRACTICE OF
THE INTERSTATE COMMERCE COMMISSION JUSTIFICATION FOR SO HOLDING. 

ON NOVEMBER 1, 1951, RESPONDENT JACKSON, THE FOREMAN OF A BALTIMORE &
OHIO MAINTENANCE CREW, WAS ENGAGED WITH TWO OF HIS MEN IN RAILROAD
MAINTENANCE WORK NEAR WASHINGTON GROVE, MARYLAND.  AT QUITTING TIME,
THE THREE MEN LIFTED A MOTORIZED TRACK CAR AND A PUSH TRUCK ONTO THE
TRACKS, COUPLED THEM TOGETHER BY HAND, AND BOARDED THE MOTOR CAR FOR
THEIR RETURN TO THE SECTION HOUSE ABOUT ONE MILE AWAY.  IT HAD BEEN
RAINING LIGHTLY AND THE TRACKS WERE WET.  THE MOTOR CAR AND PUSH TRUCK
AHD TRAVELED ABOUT 195 FEET WHEN JACKSON, WHO WAS OPERATING THE MOTOR
CAR, SAW A LARGE DOG ABOUT TO CROSS THE TRACKS IN FRONT OF THE CAR.  HE
THREW OUT THE CLUTCH AND APPLIED THE HAND BRAKE WITH BOTH HANDS.  THE
BRAKES GRABBED, THE WHEELS LOCKED AND THE VEHICLES SLID "ABOUT 20 FEET"
ON THE WET TRACKS BEFORE STRIKING THE DOG AND OVERTURNING.  JACKSON WAS
INJURED. 

THE MOTOR TRACK CAR ON WHICH JACKSON AND HIS CREW WERE RIDING WAS A
FOUR-WHEEL MAINTENANCE-OF-WAY VEHICLE WEIGHING ABOUT 800 POUNDS. 
POWERED BY A GASOLINE MOTOR AND CONTROLLED WITH A THROTTLE, CLUTCH AND
HAND BRAKE, IT WAS TYPICAL OF THE MORE THAN 60,000 VEHICLES OF THIS
TYPE CURRENTLY IN USE ON AMERICAN RAILROADS TO CARRY MAINTENANCE CREWS
FROM SECTION HOUSES TO PLACES ALONG THE RAILROAD WHERE WORK IS TO BE
PERFORMED.  THE PUSH TRUCK WAS AN EVEN SIMPLER VEHICLE.  IT CONSISTED
OF FOUR WHEELS, A CHASSIS, AND A FLAT WOODEN PLATFORM, AND COULD BE
PUSHED ALONG THE TRACKS BY HAND. 

AT THE TIME OF THE ACCIDENT, THE PUSH TRUCK WAS ATTACHED TO THE REAR
OF THE MOTOR CAR BY A SIMPLE NON-AUTOMATIC LINK AND PIN DEVICE, AND
CARRIED NO LOAD EXCEPT A FEW TOOLS.  JACKSON TESTIFIED THAT THE USE OF
A PUSH TRUCK IN CONJUNCTION WITH A MOTOR TRACK CAR WAS CUSTOMARY; THAT
NEITHER VEHICLE CARRIED AN UNUSUAL OR EXCESSIVE LOAD; THAT EACH WAS
PROVIDED WITH THE USUAL EQUIPMENT OF SUCH VEHICLES; AND THAT THE HAND
BRAKE OF THE MOTOR CAR WAS IN PROPER WORKING ORDER AT THE TIME OF THE
ACCIDENT. 

THE SAFETY APPLIANCE ACTS MAKE IT MANDATORY THAT SPECIFIED EQUIPMENT
BE USED ON RAILROAD VEHICLES COVERED BY THE ACTS.  CRIMINAL PENALTIES
ARE IMPOSED FOR EACH VIOLATION.  (FN2)  CIVIL LIABILITY IN DAMAGES
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT FOLLOWS AS A MATTER OF
COURSE IF THE VIOLATION IS A PROXIMATE CAUSE OF AN EMPLOYEE'S INJURY. 
(FN3)  THE VEHICLES SUBJECT TO THE ACTS MUST BE EQUIPPED WITH SUCH
DEVICES AS POWER DRIVING-WHEEL BRAKES, APPLIANCES FOR OPERATING A TRAIN
BRAKE SYSTEM, AUTOMATIC COUPLERS OF A STANDARD HEIGHT, SILL STEPS, GRAB
IRONS AND HANDHOLDS, AND HAND BRAKES.  IN DETERMINING WHETHER MOTOR
CARS AND PUSH TRUCKS MUST BE EQUIPPED WITH SUCH APPLIANCES, THE
LANGUAGE OF THE ACTS IS THE PROPER STARTING POINT. 

THE SAFETY APPLIANCE ACTS APPLY EXPRESSLY TO "ALL TRAINS,
LOCOMOTIVES, TENDERS, CARS, AND SIMILAR VEHICLES USED ON ANY RAILROAD
ENGAGED IN INTERSTATE COMMERCE  ...  AND TO ALL OTHER LOCOMOTIVES,
TENDERS, CARS, AND SIMILAR VEHICLES USED IN CONNECTION THEREWITH  ...
."  32 STAT.  943, 45 U.S.C. SEC. 8.  THE TERM "SIMILAR VEHICLES" SHOWS
THAT ALL VEHICLES ARE NOT INCLUDED.  MOTOR CARS AND PUSH TRUCKS MUST
COME WITHIN THE TERMS "LOCOMOTIVES," "CARS," OR "SIMILAR VEHICLES." 

THE STATUTORY CONTEXT DEMONSTRATES THAT THE CRUCIAL TERMS -
"LOCOMOTIVES" AND "CARS" - WERE USED IN THEIR ORDINARY SENSE AS
REFERRING TO STANDARD OPERATING EQUIPMENT RATHER THAN TO SMALL
MAINTENANCE-OF-WAY VEHICLES LIKE THOSE INVOLVED IN THIS CASE.  FOR
EXAMPLE, SEC. 1, 27 STAT. 531, 45 U.S.C. SEC. 1, WHICH REQUIRES "POWER
DRIVING-WHEEL BRAKES" AND A "TRAIN-BRAKE SYSTEM," SPEAKS IN TERMS OF A
"LOCOMOTIVE ENGINE," "ENGINEER," "BRAKEMAN" AND "TRAIN."  (FN4)  A
SMALL MOTOR CAR USED TO HAUL SECTION HANDS AND THEIR TOOLS TO AND FROM
WORK WOULD NOT ORDINARILY BE CALLED A "LOCOMOTIVE ENGINE" EXCEPT IN
JEST, NOR WOULD A MOTOR CAR WITH A PUSH TRUCK ATTACHED BE REFERRED TO
AS A "TRAIN."  MUCH LESS WOULD THE SECTION HAND OPERATING THE MOTOR
CAR, WHO WOULD ORDINARILY BELONG TO A SEPARATE UNION - THE BROTHERHOOD
OF MAINTENANCE OF WAY EMPLOYEES - BE REFERRED TO AS AN "ENGINEER" OR
HIS CREW AS "BRAKEMEN."  THIS IS LANGUAGE APPROPRIATE TO VEHICLES AND
EMPLOYEES USED IN STANDARD FREIGHT AND PASSENGER OPERATIONS BUT NOT A
MOTOR CAR TOWING A PUSH TRUCK. 

OTHER SECTIONS INDICATE THAT THE WORD "CAR" REFERS TO STANDARD
RAILROAD CARS.  SECTION 2 MAKES IT UNLAWFUL FOR ANY RAILROAD "TO HAUL
OR PERMIT TO BE HAULED OR USED ON ITS LINE ANY CAR  ...  NOT EQUIPPED
WITH COUPLERS COUPLING AUTOMATICALLY BY IMPACT, AND WHICH CAN BE
UNCOUPLED WITHOUT THE NECESSITY OF MEN GOING BETWEEN THE ENDS OF THE
CARS."  27 STAT.  531, 45 U.S.C. SEC. 2.  THIS SECTION, AS WELL AS THE
DETAILED PROVISIONS OF SEC. 5 DEALING WITH THE PRESCRIBED HEIGHT OF
DRAWBARS ON COUPLERS, COULD NOT BE APPLICABLE TO CARS OF LITTLE MORE
THAN A YARD'S HEIGHT EASILY COUPLED BY HAND WITHOUT DANGER TO ANYONE. 
(FN5) 

THE BACKGROUND AND LEGISLATIVE HISTORY OF THE THREE SAFETY APPLICANCE
ACTS CONFIRM THIS VIEW.  THEIR HISTORY REVEALS NOT ONLY THAT IT NEVER
WAS SUGGESTED THAT THE ACTS WERE APPLICABLE TO SMALL MAINTENANCE-OF-WAY
VEHICLES, BUT ALSO THAT THE STATED OBJECTIVES OF THE ACTS WOULD NOT BE
SERVED BY SUBJECTING THESE VEHICLES TO THE ACTS. 

THE RECOGNIZED PURPOSE OF EACH OF THE SAFETY APPLIANCE ACTS WAS THE
PROTECTION OF OPERATING EMPLOYEES OF RAILROADS FROM THE HAZARDS
INVOLVED IN THE MOVEMENT OF STANDARD TRAINS AND CARS.  THE FIRST SAFETY
APPLIANCE ACT, 27 STAT. 531, 45 U.S.C. SECS. 1-7, ENACTED IN 1893, WAS
PRECEDED BY A DECADE OF CONCERN, NOT WITH LIGHT MAINTENANCE EQUIPMENT,
BUT WITH THE DEATH TOLL CAUSED BY THE TWO MAJOR HAZARDS FACING RAILROAD
TRAINMEN:  (1) THE NECESSITY FOR OPERATING EMPLOYEES TO WORK BETWEEN
FREIGHT CARS IN COUPLING THEM, AND (2) THE NECESSITY FOR BRAKEMEN TO
OPERATE HAND BRAKES WHILE STANDING ON THE TOPS OF FREIGHT CARS.  (FN6)
THE INTERSTATE COMMERCE COMMISSION, THE RAILROAD BROTHERHOODS, AND
OTHER GROUPS ADVOCATED LEGISLATION WHICH WOULD REDUCE THESE HAZARDS BY
REQUIRING UNIFORM AUTOMATIC COUPLERS AND POWER BRAKES ON FREIGHT
TRAINS.  (FN7)  CONGRESS WAS CONCERNED WHOLLY WITH THESE HAZARDS AND
THE ACT ADOPTED RELATES ENTIRELY TO THEM.  (FN8) 

THE PRESENT SIGNIFICANCE OF THESE SPECIFIC OBJECTIVES IS THAT THEY DO
NOT RELATE TO MOTOR CARS AND PUSH TRUCKS.  UNLIKE STANDARD RAILROAD
CARS AND TRAINS, MOTOR CARS AND PUSH TRUCKS DO NOT REQUIRE POWER BRAKES
TO BRING THEM SAFELY TO A STOP, AND THEY DO NOT ENDANGER THE SECTION
HANDS WHO COUPLE THEM BY PUSHING THEM TOGETHER BY HAND.  OPERATED AND
USED BY MAINTENANCE WORKERS RATHER THAN BY OPERATING EMPLOYEES, MOTOR
CARS AND PUSH TRUCKS MOVE AT COMPARATIVELY SLOW SPEEDS AND PRESENT
HAZARDS QUITE DIFFERENT FROM THOSE FACED BY TRAINMEN ON STANDARD
TRAINS. 

BY 1900, THE RAILROADS WERE IN SUBSTANTIAL COMPLIANCE WITH THE
ORIGINAL ACT.  (FN9)  NEVERTHELESS, THE INTERSTATE COMMERCE COMMISSION,
DISTURBED BECAUSE SOME LOCOMOTIVES AND STANDARD CARS WERE NOT REQUIRED
TO BE EQUIPPED WITH AUTOMATIC COUPLERS, RECOMMENDED BROADENING
AMENDMENTS.  THESE RECOMMENDATIONS CALLED FOR AUTOMATIC COUPLERS FOR
ALL LOCOMOTIVES AND FOR "ALL VEHICLES  ...  WHICH ARE ORDINARILY HAULED
OR PROPELLED BY STANDARD LOCOMOTIVES."  (FN10)  THE SECOND SAFETY
APPLIANCE ACT, ENACTED IN 1903, 32 STAT. 943, 45 U.S.C. SECS. 8-10,
INCORPORATED THESE RECOMMENDATIONS.  IT EXTENDED THE FIRST ACT TO "ALL
TRAINS, LOCOMOTIVES, TENDERS, CARS, AND SIMILAR VEHICLES USED IN
CONNECTION THEREWITH  ...  ."  INITIALLY, THE WORD "VEHICLES" IN THE
BILL WAS UNQUALIFIED BY THE WORD "SIMILAR."  S. REP. NO. 1930, 57TH
CONG., 1ST SESS. 16.  HOWEVER, A RAILROAD REPRESENTATIVE OBJECTED TO IT
ON THE GROUND THAT IT WAS TOO BROAD AND SUGGESTED THE TERM "TRAFFIC
CARS."  ID., AT 16-17.  THE LEGISLATIVE REPRESENTATIVE OF THE
BROTHERHOODS OPPOSED THE SUGGESTED SUBSTITUTE BECAUSE IT MIGHT BE
THOUGHT INAPPLICABLE TO "CABOOSES, STEAM SHOVELS, SNOWPLOWS, SCALE
CARS, AND SIMILAR CONVEYANCES," WHICH ARE USED IN CONNECTION WITH
STANDARD EQUIPMENT.  ID., AT 46.  THE RESULT WAS THAT THE WORD
"VEHICLES" WAS QUALIFIED BY THE ADDITION OF "SIMILAR."  THIS INDICATES
THAT THE TERM "SIMILAR VEHICLES" WAS USED TO COVER SPECIAL EQUIPMENT,
SUCH AS SNOWPLOWS, USED IN CONNECTION WITH STANDARD EQUIPMENT. 
MAINTENANCE-OF-WAY VEHICLES HAVE NEVER BEEN CAPABLE OF SUCH USE. 

THE THIRD SAFETY APPLIANCE ACT, 36 STAT. 298, 45 U.S.C. SECS. 11-16,
ENACTED IN 1910, SUPPLEMENTED THE EXISTING ACTS SO AS TO REQUIRE
ADDITIONAL SAFETY APPLIANCES, BUT DID NOT EXTEND THE COVERAGE.  "CARS"
WERE TO BE EQUIPPED WITH SECURE SILL STEPS AND EFFICIENT HAND BRAKES;
"CARS" REQUIRING SECURE LADDERS AND RUNNING BOARDS WERE TO BE SO
EQUIPPED; SECURE HANDHOLDS OR GRAB IRONS WERE TO BE INSTALLED ON THE
ROOFS AT THE TOPS OF SUCH LADDERS; AND THE COMMISSION WAS TO DESIGNATE
THE STANDARDS FOR THESE AND CERTAIN OTHER APPLIANCES, AS WELL AS TO
MODIFY OR CHANGE THE STANDARD HEIGHT FOR DRAWBARS.  THESE ADDITIONS
GREW OUT OF RECOMMENDATIONS MADE BY THE COMMISSION AND THEIR HISTORY
REVEALS AN INTENT TO SECURE UNIFORM EQUIPMENT ON OPERATING CARS. 
(FN11)  UNIFORMITY WAS CONSIDERED TO BE IMPERATIVE BECAUSE TRAINMEN
WORKING ON TRAINS BY DAY AND BY NIGHT WOULD OPERATE MORE SAFELY IF THE
APPLIANCES THEY NEEDED - SILL STEPS, LADDERS, RUNNING BOARDS, GRAB
IRONS AND THE LIKE - WERE UNIFORM IN CHARACTER AND LOCATION ON ALL
FREIGHT CARS.  MOST OF THESE APPLIANCES ARE NOT AT ALL ADAPTED TO MOTOR
CARS AND PUSH TRUCKS.  ON THESE SMALL VEHICLES THERE NOT ONLY IS LITTLE
OR NO NEED FOR THIS EQUIPMENT, BUT THERE IS NO SUITABLE PLACE TO ATTACH
IT. 

THE INAPPLICABILITY OF THE SAFETY APPLIANCE ACTS TO MAINTENANCE-OF
WAY VEHICLES IS CONFIRMED BY THE LONG-STANDING ADMINISTRATIVE
INTERPRETATION OF THE INTERSTATE COMMERCE COMMISSION AND BY NUMEROUS
PRACTICAL CONSIDERATIONS.  THE INTERSTATE COMMERCE COMMISSION HAS
ADMINISTERED THESE ACTS FOR OVER HALF A CENTURY.  DURING THAT TIME, IT
HAS, BY ITS OWN STATEMENT, "NEVER CONSIDERED THE SMALL MAINTENANCE OF
WAY VEHICLES SUBJECT TO THOSE ACTS  ...  ."  (FN12)  ITS ORDER OF MARCH
13, 1911, SPECIFYING THE NUMBER, DIMENSIONS AND LOCATION OF THE
APPLIANCES REQUIRED BY THE ACTS, OMITS ALL MENTION OF MOTOR TRACK CARS
AND PUSH TRUCKS.  (FN13)  MOTOR CARS ARE NOT SUBJECTED TO THE
INSPECTION REQUIRED OF "LOCOMOTIVES."  MAINTENANCE-OF-WAY VEHICLES ARE
NOT CONSIDERED AS TRAINS, LOCOMOTIVES OR CARS FOR ACCIDENT REPORTING
PURPOSES.  (FN14)    DESPITE THE COMMISSION'S CONSISTENT CONSTRUCTION
OF THE ACTS SINCE THEIR INCEPTIONS, THE COURT TODAY STATES THAT "THERE
HAS BEEN NO EXPRESSED ADMINISTRATIVE DETERMINATION  ...  ."  ANTE, P.
330.  NOT ONLY WAS THERE NO REASON FOR THE COMMISSION TO DISCLAIM
APPLICATION, BUT ITS "NEGATIVE" ACTION IN DECLINING TO SUBJECT THESE
VEHICLES TO THE ACTS IS IMPRESSIVE BECAUSE THE ACTS IMPOSE AN
AFFIRMATIVE DUTY ON THE COMMISSION TO ENFORCE THEIR PROVISIONS.  (FN15)
THE COMMISSION AND THE DEPARTMENT OF JUSTICE HAVE BEEN AWARE THAT
MOTOR CARS AND PUSH TRUCKS USED BY AMERICAN RAILROADS WERE NOT EQUIPPED
WITH AUTOMATIC COUPLERS, POWER BRAKES AND SO ON.  THEIR FAILURE TO
PROSECUTE EVIDENCES THEIR INTERPRETATION OF THE ACTS.  FEDERAL TRADE
COMMISSION V. BUNTE BROTHERS, INC., 312 U.S. 349, 351-352. 

THE CONTEMPORANEOUS AND LONG-STANDING INTERPRETATION OF ANY
REGULATORY ACT BY THE AGENCY THAT ADMINISTERS IT IS ENTITLED TO GREAT
WEIGHT.  (FN16)  HERE THERE ARE CONSIDERATIONS ENTITLING THE INTERSTATE
COMMERCE COMMISSION'S VIEWS TO SPECIAL RESPECT.  SEE DAVIS V. MANRY,
266 U.S. 401, 404-405.  THE COMMISSION HAS PLAYED A PREDOMINANT ROLE IN
DEVELOPING AND PERFECTING THE ACTS, AND CONGRESS HAS GIVEN IT BROAD
DISCRETIONARY POWERS IN ADMINISTERING THEM.  ITS CONSISTENT
INTERPRETATION OF THE ACTS, KNOWN TO CONGRESS, THE RAILROAD INDUSTRY
AND THE RAILROAD LABOR ORGANIZATIONS, IS PERSUASIVE EVIDENCE THAT THE
ACTS NEVER WERE INTENDED TO APPLY TO MOTOR CARS AND PUSH TRUCKS. 
(FN17) 

IT IS ALSO SIGNIFICANT THAT THE BROTHERHOOD OF MAINTENANCE OF WAY
EMPLOYES, WHOSE MEMBERS OPERATE AND MAINTAIN MOTOR CARS IN THEIR WORK,
NEVER HAS CONTENDED THAT THE SAFETY APPLIANCE ACTS APPLY TO THESE
VEHICLES.  HOWEVER, THE BROTHERHOOD HAS BEEN ACTIVE IN SOLICITING OTHER
LEGISLATION WHICH IT FEELS WILL ADD TO THE SAFETY OF ITS MEMBERS. 
(FN18)  IT HAS SOUGHT LEGISLATION FROM CONGRESS WHICH WOULD REQUIRE
STRICT ENFORCEMENT OF SOUND OPERATING RULES AND REGULATIONS.  ALTHOUGH
SUPPORTED BY THE COMMISSION, THESE ATTEMPTS THUS FAR HAVE FAILED. 
(FN19)  THE BROTHERHOOD, HOWEVER, HAS SECURED OTHER SAFETY
LEGISLATION.  LARGELY AT ITS REQUEST, 26 STATES, IN RECENT YEARS, HAVE
ADOPTED LEGISLATION REQUIRING SPECIFIC EQUIPMENT, SUCH AS HEADLIGHTS,
TAILLIGHTS, WINDSHIELDS, WINDSHIELD WIPERS AND CANOPIES, ON MOTOR TRACK
CARS.  (FN20)  THIS STATE LEGISLATION DEALING EXPRESSLY WITH THE SAFETY
REQUIREMENTS OF MOTOR TRACK CARS INDICATES THAT THE FEDERAL ACTS HAVE
NOT BEEN THOUGHT TO APPLY TO THEM.  AS TO THE QUESTION OF PREEMPTION,
SEE NAPIER V. ATLANTIC COAST LINE R. CO., 272 U.S. 605, 611. 

PRACTICAL CONSIDERATIONS, RELATING TO THE SAFETY OF RAILROAD
MAINTENANCE WORKERS WHO USE MOTOR CARS AND PUSH TRUCKS, SUPPORT THE
INAPPLICABILITY OF THE ACTS.  THE MAJOR HAZARD IN THE USE OF THESE
VEHICLES IS THE RISK OF THEIR COLLISION WITH TRAINS.  IT IS IMPORTANT
THAT MAINTENANCE-OF-WAY VEHICLES BE SO LIGHT THAT THREE OR FOUR MEN CAN
LIFT THEM QUICKLY OFF THE TRACKS.  IN CONTRAST, MOST OF THE SAFETY
APPLIANCES REQUIRED BY THE ACTS HAVE LITTLE OR NO RELATION TO THIS OR
OTHER SAFETY REQUIREMENTS OF THESE SMALL VEHICLES.  WHETHER IT IS
FEASIBLE TO EQUIP THEM WITH POWER BRAKES, AUTOMATIC COUPLERS, AND THE
OTHER APPLIANCES SPECIFIED IN THE ACTS IS HIGHLY CONJECTURAL.  MOTOR
CARS AND PUSH TRUCKS MIGHT, IN FACT, BE RENDERED LESS SAFE BY THE
ADDITION OF SUCH APPLIANCES, NOT ONLY BECAUSE OF THE INCREASED WEIGHT
BUT BECAUSE OF THE DANGER OF SUDDEN STOPS.  A RAILROAD BRAKE EXPERT IN
THIS CASE SPOKE OF THE DANGER OF MEN BEING THROWN FROM THEIR OPEN SEATS
ON A MOTOR CAR BY QUICK STOPS, AND THE COMMISSION, IN ITS AMICUS BRIEF,
STATES THAT "IN THE ABSENCE OF TESTS SHOWING OTHERWISE, IT WOULD SEEM
THAT POWER BRAKES ON PUSH TRUCKS TOWED BY A TRACK MOTOR CAR COULD WELL
BE ABOUT AS DANGEROUS A DEVICE TO EMPLOYEES RIDING ON SUCH VEHICLES AS
ONE CAN IMAGINE."  P. 20.  ACCORDING TO THE COMMISSION, PROTECTION
AGAINST COLLISION WITH TRAINS IS BETTER ASSURED BY STRICT ENFORCEMENT
OF RULES DESIGNED TO GIVE WARNING OF TRAIN MOVEMENTS THAN BY THE
ADDITION OF THE SAFETY APPLIANCES NAMED IN THE ACTS.  IN ANY EVENT,
SUCH MATTERS ARE PECULIARLY WITHIN ITS COMPETENCE. 

THE COURT'S DECISION IS DIRECTLY OPPOSED TO THE COMMISSION'S PRACTICE
AND OPINION.  IT IMPOSES ONEROUS REQUIREMENTS, UNRELATED TO SAFETY, ON
A LARGE CLASS OF VEHICLES NEVER BEFORE CONSIDERED SUBJECT TO THE ACTS. 
(FN21)  NOTHING IN THE LANGUAGE OF THE ACTS OR IN THEIR HISTORY COMPELS
A DISREGARD OF THE INFORMED JUDGMENT OF THAT EXPERT AUTHORITY WHICH HAS
THE RESPONSIBILITY OF THEIR ADMINISTRATION AND ENFORCEMENT. 

I WOULD SUSTAIN THE VIEW OF THE INTERSTATE COMMERCE COMMISSION AND
REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  27 STAT. 531, AS AMENDED, 29 STAT. 85, 32 STAT. 943, 36 STAT.
298, 62 STAT. 909, 45 U.S.C. SECS. 1-16. 

FN2  SECTION 6, 27 STAT. 532, 45 U.S.C. SEC. 6; SEC. 4, 36 STAT. 299,
45 U.S.C. SEC. 13. 

FN3  SEE, E.G., URIE V. THOMPSON, 337 U.S. 163; JACOBSON V. NEW YORK,
N.H.&H.R. CO., 206 F.2D 153. 

FN4  "  ...  IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER ENGAGED IN
INTERSTATE COMMERCE BY RAILROAD TO USE ON ITS LINE ANY LOCOMOTIVE
ENGINE IN MOVING INTERSTATE TRAFFIC NOT EQUIPPED WITH A POWER DRIVING
WHEEL BRAKE AND APPLIANCES FOR OPERATING THE TRAIN-BRAKE SYSTEM, OR TO
RUN ANY TRAIN IN SUCH TRAFFIC  ...  THAT HAS NOT A SUFFICIENT NUMBER OF
CARS IN IT SO EQUIPPED WITH POWER OR TRAIN BRAKES THAT THE ENGINEER ON
THE LOCOMOTIVE DRAWING SUCH TRAIN CAN CONTROL ITS SPEED WITHOUT
REQUIRING BRAKEMEN TO USE THE COMMON HAND BRAKE FOR THAT PURPOSE."  27
STAT. 531, 45 U.S.C. SEC. 1. 

FN5  THE LANGUAGE OF SEC. 3 REINFORCES THIS CONCLUSION.  IT PROVIDES
THAT A RAILROAD THAT HAS COMPLIED WITH SEC. 1 "MAY LAWFULLY REFUSE TO
RECEIVE FROM CONNECTING LINES OF ROAD OR SHIPPERS ANY CAR NOT EQUIPPED
SUFFICIENTLY  ...  WITH SUCH POWER OR TRAIN BRAKES AS WILL WORK AND
READILY INTERCHANGE WITH THE BRAKES IN USE ON ITS OWN CARS  ...  ."  27
STAT.  531, 45 U.S.C. SEC. 3.  IT IS CONCERNED WITH THE TRANSFER OF
STANDARD FREIGHT OR PASSENGER CARS FROM ONE RAILROAD TO ANOTHER AND IS
NOT APPLICABLE TO MAINTENANCE-OF-WAY VEHICLES. 

FN6  SEE S. REP. NO. 1049, 52D CONG., 1ST SESS. 2-3, 5; H.R. REP. NO.
1678, 52D CONG., 1ST SESS. 1, 3; 1 SHARFMAN, THE INTERSTATE COMMERCE
COMMISSION (1931), 246, N. 4.  SINCE PASSENGER CARS, BY 1893, HAD
GENERALLY BEEN EQUIPPED WITH THE REQUIRED APPLIANCES - TRAIN BRAKES AND
AUTOMATIC COUPLERS - THEY DID NOT PRESENT THE SAME HAZARDS TO
TRAINMEN. 

FN7  THE COMMISSION RECOMMENDED ENACTMENT OF LEGISLATION IN 1889
AFTER COMPLETING A GENERAL INVESTIGATION OF RAILROAD SAFETY
CONDITIONS.  IT CONTINUED TO PRESS FOR LEGISLATION UNTIL THE ENACTMENT
OF THE FIRST SAFETY APPLIANCE ACT IN 1893.  SEE INTERSTATE COMMERCE
COMMISSION ACTIVITIES, 1887-1937 (1937), 118-120; THIRD ANN. REP.,
I.C.C., FOR 1889, 44-45, 84-101; FIFTH ANN. REP., I.C.C., FOR 1891, 337
340; SIXTH ANN. REP., I.C.C., FOR 1892, 69-70. 

FN8  THE 1893 ACT WAS ENTITLED "AN ACT TO PROMOTE THE SAFETY OF
EMPLOYEES AND TRAVELERS UPON RAILROADS BY COMPELLING COMMON CARRIERS
ENGAGED IN INTERSTATE COMMERCE TO EQUIP THEIR CARS WITH AUTOMATIC
COUPLERS AND CONTINUOUS BRAKES AND THEIR LOCOMOTIVES WITH DRIVING-WHEEL
BRAKES, AND FOR OTHER PURPOSES."  THE ONLY PROVISION WHICH MIGHT BE
THOUGHT TO BE UNRELATED TO POWER BRAKES OR AUTOMATIC COUPLERS WAS THE
REQUIREMENT IN SEC. 4 OF "SECURE GRAB IRONS OR HANDHOLDS IN THE ENDS
AND SIDES OF EACH CAR" AND THIS REQUIREMENT WAS EXPRESSLY STATED TO BE
"FOR GREATER SECURITY TO MEN IN COUPLING AND UNCOUPLING CARS."  27
STAT. 531, 45 U.S.C. SEC. 4. 

FN9  FOURTEENTH ANN. REP., I.C.C., FOR 1900, 76. 

FN10  FIFTEENTH ANN. REP., I.C.C., FOR 1901, 68; SIXTEENTH ANN. REP.,
I.C.C., FOR 1902, 61. 

FN11  TWENTY-THIRD ANN. REP., I.C.C., FOR 1909, 40-41; S. REP. NO.
250, 61ST CONG., 2D SESS.  2; H.R. REP. NO. 37, 61ST CONG., 2D SESS. 

FN12  "FOR OVER HALF A CENTURY, THE COMMISSION HAS ADMINISTERED THE
SAFETY APPLIANCE ACTS, AS WELL AS THE OTHER ACTS RELATING TO RAILROAD
SAFETY.  DURING THIS PERIOD, THE COMMISSION HAS NEVER CONSIDERED THE
SMALL MAINTENANCE OF WAY VEHICLES SUBJECT TO THOSE ACTS, AND WE SUBMIT
THAT THE FOREGOING CONTEMPORARY AND LEGISLATIVE HISTORIES FURNISH A
SOUND FOUNDATION FOR ITS VIEW.  THAT LEGISLATION IS CONCERNED WITH
LOCOMOTIVES, CARS AND SIMILAR VEHICLES WHICH EMPLOYEES WERE FORMERLY
REQUIRED TO GO BETWEEN TO COUPLE, OR TO ASCEND TO USE THE HAND BRAKE. 
THE ACTS ARE DESIGNED PRIMARILY TO REDUCE OR ELIMINATE THOSE HAZARDS. 
THEY SHOULD NOT BE CONSTRUED TO APPLY TO ENTIRELY DIFFERENT TYPES OF
EQUIPMENT WHOSE OPERATION DOES NOT INVOLVE SUCH RISKS."  BRIEF OF
INTERSTATE COMMERCE COMMISSION, AS AMICUS CURIAE, 18-20. 

FN13 THIS ORDER WAS AMENDED IN 1943 AND REPUBLISHED IN 1946.  49 CFR,
1949, PT. 131. 

FN14  SEE I.C.C., ACCIDENT BULLETIN NO. 124 FOR 1955, 94. 

FN15  UNDER SEC. 6 OF THE ORIGINAL SAFETY APPLIANCE ACT, 27 STAT.
532, 45 U.S.C. SEC. 6, AND SECS. 5 AND 6 OF THE THIRD SAFETY APPLIANCE
ACT, 36 STAT. 299, 45 U.S.C. SECS. 14 AND 15, THE INTERSTATE COMMERCE
COMMISSION HAS THE MANDATORY DUTY OF INFORMING UNITED STATES DISTRICT
ATTORNEYS OF VIOLATIONS OF THE ACTS; THESE ATTORNEYS HAVE THE MANDATORY
DUTY TO PROSECUTE VIOLATORS; AND RAILROADS ARE LIABLE FOR A PENALTY OF
$100 FOR EACH VIOLATION. 

FN16  SEE, E.G., NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES,
288 U.S. 294, 311-315; WISCONSIN V. ILLINOIS, 278 U.S. 367, 413. 

FN17  THE TWO FEDERAL COURT DECISIONS RELIED ON BY THE COURT ARE
DISTINGUISHABLE.  THE 18-FOOT GASOLINE TRACTOR WHICH WAS HELD TO BE A
"LOCOMOTIVE" IN HOFFMAN V. NEW YORK, N.H.&H.R. CO., 74 F.2D 227, WAS
EQUIPPED WITH AN AUTOMATIC COUPLER, WAS USED TO HAUL STANDARD RAILROAD
CARS AND WAS CAPABLE OF HAULING 22 FREIGHT CARS LOADED WITH CEMENT. 
SUCH A VEHICLE BEARS LITTLE RESEMBLANCE TO THE MOTOR TRACK CAR INVOLVED
HERE.  UNITED STATES V. FORT WORTH & D.C.R. CO., 21 F. SUPP. 916, IS
EVEN LESS IN POINT.  IN THAT CASE IT WAS HELD THAT A LARGE BROWNING
STEAM LOCOMOTIVE CRANE, ENGAGED IN HAULING STANDARD RAILROAD CARS, WAS
A "LOCOMOTIVE" AND THE COMBINATION OF CARS A "TRAIN" WITHIN THE MEANING
OF THE ACTS.  THE FLORIDA DECISION, MARTIN V. JOHNSTON, 79 SO. 2D 419,
LENDS LITTLE SUPPORT BECAUSE THE STATE COURT APPEARS TO HAVE BEEN
UNADIVSED OF THE ABOVE-STATED PURPOSE, LEGISLATIVE HISTORY, AND
ADMINISTRATIVE INTERPRETATION OF THE ACTS. 

FN18  HERTEL, HISTORY OF THE BROTHERHOOD OF MAINTENANCE OF WAY
EMPLOYES (1955), 212-213. 

FN19  SEE H.R. REP. NO. 1558, 81ST CONG., 2D SESS. 3-4; HEARINGS
BEFORE HOUSE SUBCOMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R.
378 AND H.R. 530, 81ST CONG., 1ST SESS. 17-54. 

FN20  HERTEL, OP. CIT. SUPRA, 213.  SEE, E.G., MASS. ACTS 1952, C.
430, AND 1951, C. 174; MICH. STAT. ANN., 1955 CUM. SUPP., SECS. 22.965,
22.966, 22.968(1)(2). 

FN21  THE COURT ALSO REJECTS THE RAILROAD'S ALTERNATIVE CONTENTION
THAT MOTOR TRACK CARS AND PUSH TRUCKS, IF WITHIN THE PURVIEW OF THE
ACTS, ARE EXCEPTED FROM THE ACTS BY VIRTUE OF THE PROVISO IN SEC. 6
EXEMPTING "TRAINS COMPOSED OF FOUR-WHEEL CARS OR  ...  LOCOMOTIVES USED
IN HAULING SUCH TRAINS."  27 STAT. 532, 29 STAT. 85, 45 U.S.C. SEC. 6. 
THIS PROVISO CONFIRMS THE VIEW EXPRESSED IN THIS DISSENT THAT POWER
BRAKES, AUTOMATIC COUPLERS, AND THE OTHER SPECIFIED APPLIANCES ARE NOT
REQUIRED OF MOTOR TRACK CARS AND PUSH TRUCKS.  THE EXCEPTION, ON ITS
FACE, APPLIES TO THEM AS FOUR-WHEEL VEHICLES.  AND, ALTHOUGH THE
LEGISLATIVE HISTORY INDICATES THAT CONGRESS HAD FOUR-WHEEL COAL CARS
PRIMARILY IN MIND, THE PROVISO IS NOT EXPRESSLY LIMITED TO COAL CARS
AND IS THOROUGHLY CONSISTENT WITH A PURPOSE TO EXEMPT FROM THE ACTS
MAINTENANCE VEHICLES THAT ARE NOT SUITED TO THE PRESCRIBED SAFETY
APPLIANCES. 
..END :


















KREMEN V. UNITED STATES 353 U.S. 346 


NO. 162.  ARGUED MARCH 6, 1957 - DECIDED MAY 13, 1957 - 231 F.2D 155,
REVERSED. 


THE THREE PETITIONERS WERE ARRESTED BY FEDERAL OFFICERS, WHO HAD AN
ARREST WARRANT FOR ONLY ONE OF THEM.  WITHOUT SEARCH WARRANTS, THE
OFFICERS SEARCHED THE CABIN AND REMOVED THEM SOME 200 MILES AWAY FOR
PURPOSES OF EXAMINATION.  SOME OF THE EVIDENCE SO SEIZED WAS INTRODUCED
AT THE TRIAL OF PETITIONERS IN A FEDERAL COURT, AND PETITIONERS WERE
CONVICTED OF CERTAIN FEDERAL OFFENSES.  HELD: OBJECTIONS TO THE SEARCH
AND SEIZURE WERE ADEQUATELY RAISED AND PRESERVED; THE SEARCH AND
SEIZURE WERE ILLEGAL; AND ADMISSION INTO EVIDENCE AGAINST EACH OF THE
PETITIONERS OF SOME OF THE ITEMS SEIZED IN THE CABIN RENDERED THE
GUILTY VERDICTS ILLEGAL.  PP. 346-348. 

KREMAN ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

OF PETITIONERS' VARIOUS CONTENTIONS WE FIND THE ONE RELATING TO THE
VALIDITY OF THE SEARCH AND SEIZURE MADE BY AGENTS OF THE FEDERAL BUREAU
OF INVESTIGATION DISPOSITIVE OF THIS CASE, AND WE THEREFORE NEED NOT
CONSIDER THE OTHERS. 

THE INDICTMENT CHARGED THE THREE PEITIONERS WITH RELIEVING,
COMFORTING, AND ASSISTING ONE THOMPSON, A FUGITIVE FROM JUSTICE, IN
VIOLATION OF 18 U.S.C. SEC. 3, AND WITH CONSPIRING TO COMMIT THAT
OFFENSE IN VIOLATION OF 18 U.S.C. SEC. 371.  IN ADDITION, IT CHARGED
PETITIONERS KREMEN AND COLEMAN WITH HARBORING STEINBERG, ALSO A
FUGITIVE FROM JUSTICE, AND WITH CONSPIRING TO COMMIT THAT OFFENSE. 
PETITIONERS WERE FOUND GUILTY, AND ON APPEAL THEIR CONVICTIONS WERE
SUSTAINED, ONE JUDGE DISSENTING.  231 F.2D 155.  BECAUSE OF THE UNUSUAL
CHARACTER OF THE SEARCH AND SEIZURE HERE INVOLVED, WE GRANTED
CERTIORARI, WITHOUT, HOWEVER, LIMITING THE WRIT.  352 U.S. 819. 

THOMPSON AND STEINBERG HAD BEEN FUGITIVES FROM JUSTICE FOR ABOUT TWO
YEARS WHEN AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION DISCOVERED
THEM, IN THE COMPANY OF KREMEN, COLEMAN AND ANOTHER, AT A SECLUDED
CABIN NEAR THE VILLAGE OF TWAIN HARTE, CALIFORNIA.  AFTER KEEPING THE
CABIN UNDER SURVEILLANCE FOR SOME 24 HOURS, THE OFFICERS ARRESTED THE
THREE PETITIONERS AND THOMPSON.  THOMPSON AND STEINBERG WERE ARRESTED
OUTSIDE THE CABIN; KREMEN AND COLEMAN, INSIDE.  THE AGENTS POSSESSED
OUTSTANDING ARREST WARRANTS FOR THOMPSON AND STEINBERG, BUT NONE FOR
KREMEN AND COLEMAN.  THESE FOUR INDIVIDUALS WERE SEARCHED AND DOCUMENTS
FOUND ON THEIR PERSONS WERE SEIZED.  IN ADDITION, AN EXHAUSTIVE SEARCH
OF THE CABIN AND A SEIZURE OF ITS ENTIRE CONTENTS WERE MADE SHORTLY
AFTER THE ARRESTS.  THE AGENTS POSSESSED NO SEARCH WARRANT.  THE
PROPERTY SEIZED FROM THE HOUSE WAS TAKEN TO THE F.B.I. OFFICE AT SAN
FRANCISCO FOR FURTHER EXAMINATION.  A COPY OF THE F.B.I.'S INVENTORY OF
THE PROPERTY THUS TAKEN IS PRINTED IN THE APPENDIX TO THIS OPINION,
POST, P. 349. 

THE MAJORITY OF THE COURT ARE AGREED THAT OBJECTIONS TO THE VALIDITY
OF THE SEARCH AND SEIZURE WERE ADEQUATELY RAISED AND PRESERVED.  THE
SEIZURE OF THE ENTIRE CONTENTS OF THE HOUSE AND ITS REMOVAL SOME TWO
HUNDRED MILES AWAY TO THE F.B.I. OFFICES FOR THE PURPOSE OF EXAMINATION
ARE BEYOND THE SANCTION OF ANY OF OUR CASES.  WHILE THE EVIDENCE SEIZED
FROM THE PERSONS OF THE PETITIONERS MIGHT HAVE BEEN LEGALLY ADMISSIBLE,
THE INTRODUCTION AGAINST EACH OF PETITIONERS OF SOME ITEMS SEIZED IN
THE HOUSE IN THE MANNER AFORESAID RENDERED THE GUILTY VERDICTS
ILLEGAL.  THE CONVICTIONS MUST THEREFORE BE REVERSED, WITH INSTRUCTIONS
TO GRANT THE PETITIONERS A NEW TRIAL.  REVERSED. 

MR. JUSTICE BURTON AND MR. JUSTICE CLARK DISSENT, BELIEVING THAT THE
ITEMS OF EVIDENCE OFFERED AND ADMITTED INTO EVIDENCE WERE LEGALLY
SEIZED.  THEY ARE OF THE OPINION THAT THE VALIDITY OF A SEIZURE IS NOT
TO BE TESTED BY THE QUANTITY OF ITEMS SEIZED.  VALIDITY DEPENDS ON THE
CIRCUMSTANCES OF THE SEIZURE AS TO EACH OF THE ITEMS THAT IS OFFERED
INTO EVIDENCE.  FURTHERMORE, ONLY A FRAGMENTARY PART OF THE ITEMS
LISTED BY THE COURT AS SEIZED WAS ADMITTED INTO EVIDENCE AND IF ANY
ITEMS WERE ILLEGALLY SEIZED THEIR EFFECT SHOULD BE GOVERNED BY THE RULE
OF HARMLESS ERROR SINCE THERE WAS AMPLE EVIDENCE OF GUILT OTHERWISE. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

                        APPENDIX TO OPINION OF THE COURT. 

                        FBI INVENTORY OF PROPERTY TAKEN. 

TABLE OMITTED. 
..END :










ARNOLD V. PANHANDLE & SANTA FE RAILWAY CO. 353 U.S. 360 


NO. 240.  ARGUED APRIL 24-25, 1957 - DECIDED MAY 13, 1957 - 283 S.W.2D
303, REVERSED AND REMANDED. 


IN THIS ACTION BROUGHT IN A TEXAS STATE COURT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, THE PROOFS JUSTIFIED WITH REASON THE JURY'S
CONCLUSION THAT EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING THE
PETITIONER'S INJURY, AND THE JUDGMENT OF THE TEXAS COURT OF CIVIL
APPEALS REVERSING THE TRIAL COURT JUDGMENT FOR PETITIONER IS REVERSED
AND THE CASE IS REMANDED.  PP. 360-361. 

ARNOLD V. PANHANDLE & SANTA FE RAILWAY CO. 

CERTIORARI TO THE SUPREME COURT OF TEXAS AND THE COURT OF CIVIL
APPEALS OF TEXAS, SEVENTH SUPREME JUDICIAL DISTRICT. 

PER CURIAM. 

WE HOLD THAT THE PROOFS JUSTIFIED WITH REASON THE JURY'S CONCLUSION
THAT EMPLOYER NEGLIGENCE PLAYED A PART IN PRODUCING THE PETITIONER'S
INJURY.  ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500; WEBB V.
ILLINOIS CENTRAL R. CO., 352 U.S. 512; FERGUSON V. MOORE-MCCORMACK
LINES, 352 U.S. 521; SHAW V. ATLANTIC COAST LINE R. CO., 353 U.S. 920;
FUTRELLE V. ATLANTIC COAST LINE R. CO., 353 U.S. 920; DEEN V. GULF,
COLORADO & SANTA FE R. CO., 353 U.S. 925; THOMSON V. TEXAS & PACIFIC R.
CO., 353 U.S. 926.  THE JURY'S GENERAL VERDICT, THAT THE RESPONDENT
NEGLIGENTLY CONTRIBUTED TO THE PETITIONER'S INJURY, HAS SUPPORT IN THE
TESTIMONY OF WITNESSES JUSTIFYING THE INFERENCE THAT THE PASSAGEWAY AS
USED WAS NOT A SAFE PLACE FOR THE PETITIONER TO WORK WHILE PERFORMING
HIS ASSIGNED DUTIES.  THE SPECIAL ISSUES CLAIMED TO BE IN CONFLICT WITH
THIS FINDING CONCERNED ALLEGED NEGLIGENCE ONLY IN THE OPERATION AND
PRESENCE OF THE TRUCK ON THIS PASSAGEWAY.  BUT EVEN IF THE RULE
ANNOUNCED BY THE COURT OF CIVIL APPEALS CONTROLLED, AS WE SEE IT THESE
ANSWERS PRESENT NO SQUARE CONFLICT.  THE FINDINGS ON THESE SPECIAL
ISSUES DO NOT EXHAUST ALL OF THE POSSIBLE GROUNDS ON WHICH THE PRIOR
UNSAFE-PLACE-TO-WORK FINDING OF THE JURY MAY HAVE BEEN BASED.  HENCE
ALL OF THE FINDING OF THE JURY MAY HAVE BEEN BASED.  HENCE ALL OF THE
FINDINGS IN THE CASE MIGHT WELL BE TRUE INSOFAR AS THE RECORD
INDICATES.  THE PETITIONER HAVING ASSERTED FEDERAL RIGHTS GOVERNED BY
FEDERAL LAW, IT IS OUR DUTY UNDER THE ACT TO MAKE CERTAIN THAT THEY ARE
FULLY PROTECTED, AS THE CONGRESS INTENDED THEM TO BE. WE THEREFORE
CANNOT ACCEPT INTERPRETATIONS THAT NULLIFY THEIR EFFECTIVENESS, FOR "
...  THE ASSERTION OF FEDERAL RIGHTS, WHEN PLAINLY AND REASONABLY MADE,
IS NOT TO BE DEFEATED UNDER THE NAME OF LOCAL PRACTICE."  DAVIS V.
WECHSLER, 263 U.S. 22, 24.  SEE DICE V. AKRON, CANTON & Y.R. CO., 342
U.S. 359; BROWN V. WESTERN R. CO., 338 U.S. 294.  THE JUDGMENT OF THE
COURT OF CIVIL APPEALS IS REVERSED AND THE CASE IS REMANDED.  REVERSED
AND REMANDED. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

I WOULD DISMISS THE WRIT AS IMPROVIDENTLY GRANTED FOR THE REASONS SET
FORTH IN MY DISSENT IN ROGERS V. MISSOURI PACIFIC R. CO., 352 U.S. 500,
524.  INSOFAR AS REVIEW OF THE DECISION OF THE TEXAS COURT INVOLVES THE
QUESTION OF AN INCONSISTENCY BETWEEN THE GENERAL VERDICT AND THE
SPECIAL FINDINGS ON THE CENTRAL ISSUE OF NEGLIGENCE, THE
INAPPROPRIATENESS OF GRANTING CERTIORARI TO RE-EXAMINE THE RECORD IS
GLARINGLY EMPHASIZED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BURTON AND MR. JUSTICE WHITTAKER
JOIN, DISSENTING. 

AS THIS CASE PRESENTS A DIFFERENT SITUATION FROM THAT INVOLVED IN
OTHER NEGLIGENCE CASES WHICH, IN INCREASING NUMBERS I REGRET TO SAY,
HAVE BEEN PASSED ON BY THIS COURT DURING THE CURRENT TERM, (FN1) I AM
CONSTRAINED TO WRITE A FEW WORDS IN EXPLANATION OF MY DISSENT, BEYOND
THE VIEWS EXPRESSED IN MY DISSENTING OPINION IN ROGERS V. MISSOURI PAC.
R. CO., 352 U.S. 500, 559. 

THIS CASE INVOLVES MORE THAN THE PROBLEM OF THE SUFFICIENCY OF THE
EVIDENCE TO SUPPORT A JURY VERDICT.  UNDER TEXAS PROCEDURE, THE TRIAL
COURT IN THIS CASE REQUIRED THE JURY TO BRING IN A GENERAL VERDICT ON
THE ISSUE OF WHETHER THE RESPONDENT HAD NEGLIGENTLY FAILED TO FURNISH
PETITIONER WITH A SAFE PLACE TO WORK, AND, IF SO, WHETHER SUCH FAILURE
WAS A CONTRIBUTING CAUSE TO THE ACCIDENT.  THE JURY WAS ALSO ASKED TO
MAKE FINDINGS ON SPECIAL ISSUES PUT TO IT BY THE COURT.  THE JURY'S
GENERAL VERDICT WAS FAVORABLE TO THE PETITIONER, BUT ITS FINDINGS ON
THE SPECIAL ISSUES WERE IN FAVOR OF THE RESPONDENT, AND, AS I SEE THEM,
WERE WHOLLY INCONSISTENT WITH THE GENERAL VERDICT.  (FN2)  IN THESE
CIRCUMSTANCES THE STATE APPELLATE COURT, APPLYING TEXAS LAW, HELD THAT
THE GENERAL VERDICT MUST YIELD TO THE INCONSISTENT FINDINGS ON THE
SPECIAL ISSUES, AND THAT THE TRIAL COURT SHOULD HAVE ENTERED JUDGMENT
FOR THE RESPONDENT. 

I AM UNABLE TO SEE ANY VALID BASIS FOR THIS COURT'S ACTION IN
UPSETTING THIS STATE JUDGMENT.  CLEARLY, IT SEEMS TO ME, THE TEXAS
PROCEDURAL RULE WHICH THE COURT OF CIVIL APPEALS APPLIED IN RESOLVING
THE HEAD-ON COLLISION IN THE JURY'S VERDICT DID NOT SUBVERT ASSERTION
OF THE FEDERAL RIGHTS ESTABLISHED BY THE FEDERAL EMPLOYERS' LIABILITY
ACT.  COMPARE BROWN V. WESTERN R. CO., 338 U.S. 294.  NOR, IN MY
OPINION, CAN IT BE SAID THAT RESOLVING THESE INCONSISTENCIES, IN
ACCORDANCE WITH THIS LOCAL RULE OF PRACTICE, DEPRIVED THE PETITIONER OF
ANY SUBSTANTIVE RIGHT GIVEN HIM BY THE FEDERAL STATUTE.  COMPARE DICE
V. AKRON, C.&Y.R. CO., 342 U.S. 359.  INDEED, THE PROCEDURAL RULE
APPLIED BY THE TEXAS COURT IS IDENTICAL WITH THAT WHICH WOULD HAVE BEEN
APPLICABLE, IN THE SAME CIRCUMSTANCES, HAD THIS CASE BEEN TRIED IN A
FEDERAL COURT.  SEE FED. RULES CIV. PROC., 49(B). 

I WOULD AFFIRM. 

FN1  ROGERS V. MISSOURI PAC. R. CO., 352 U.S. 500; WEBB V. ILLINOIS
CENTRAL R. CO., 352 U.S. 512; HERDMAN V. PENNSYLVANIA R. CO., 352 U.S.
518; FERGUSON V. MOORE-MCCORMACK LINES, INC., 352 U.S. 521; GIBSON V.
PHILLIPS PETROLEUM CO., 352 U.S. 874; JOHNSON V. UNION PAC.  R. CO.,
352 U.S. 957; SHAW V. ATLANTIC COAST LINE R. CO., 353 U.S. 920;
FUTRELLE V. ATLANTIC COAST LINE R. CO., 353 U.S. 920; DEEN V. GULF,
C.&S.F.R. CO., 353 U.S. 925; THOMSON V. TEXAS & PAC. R. CO., 353 U.S.
926. 

FN2  PETITIONER, RESPONDENT'S CAR INSPECTOR, SUED TO RECOVER FOR
INJURIES SUSTAINED WHILE HE WAS INSPECTING RAILROAD CARS IN A
PASSAGEWAY TEN FEET WIDE, HAVING BEEN STRUCK BY A TRUCK BACKING INTO
THE SAME PASSAGEWAY.  HE ALLEGED THAT THE RESPONDENT HAD NEGLIGENTLY
FAILED TO PROVIDE HIM WITH A SAFE PLACE TO WORK BY (1) NOT WARNING
PETITIONER OF THE TRUCK; (2) NOT PROTECTING PETITIONER WHILE HE WAS
WORKING IN THE PASSAGEWAY; (3) ALLOWING THE TRUCK TO BE DRIVEN INTO THE
PASSAGEWAY; AND (4) FAILING TO SEE THAT THE TRUCK WAS NOT DRIVEN
NEGLIGENTLY.  AS TO THE SPECIAL ISSUES THE JURY FOUND: (1) THERE WAS NO
NEGLIGENCE IN FAILING TO WARN THE PETITIONER OF THE TRUCK; (2) THERE
WAS NO NEGLIGENCE IN ALLOWING THE TRUCK TO BE DRIVEN ONTO THE
PASSEGEWAY WHILE THE PETITIONER WAS WORKING THERE; (3) THERE WAS NO
NEGLIGENT FAILURE ON THE PART OF THE RESPONDENT TO KEEP A PROPER
LOOKOUT; (4) THERE WAS NO NEGLIGENT FAILURE ON THE PART OF THE TRUCK
DRIVER TO KEEP A PROPER LOOKOUT; (5) THERE WAS NO NEGLIGENCE IN FAILING
TO GIVE A WARNING BEFORE BACKING UP THE TRUCK; (6) THERE WAS NO
NEGLIGENCE IN BACKING THE TRUCK INTO THE PASSAGEWAY; (7) THE TRUCK DID
NOT BACK TOO CLOSE TO THE TRACKS, DID NOT BACK UP TOO FAST, AND WAS NOT
NEGLIGENTLY DRIVEN WITHOUT ADEQUATE VISIBILITY; (8) PETITIONER DID NOT
MOVE INTO THE PATH OF THE TRUCK "WHEN SUCH MOVEMENT COULD NOT BE MADE
WITHOUT SAFETY"; AND (9) PETITIONER FAILED TO KEEP A PROPER LOOKOUT FOR
THE TRUCK, AND THIS FAILURE WAS A CAUSE OF THE ACCIDENT, THOUGH NOT THE
SOLE CAUSE. 

I DO NOT UNDERSTAND HOW IT COULD BE CLAIMED THAT THESE FINDINGS WERE
NOT INCONSISTENT WITH THE GENERAL VERDICT.  INDEED, EVERY SPECIFIC
ALLEGATION OF NEGLIGENCE SET FORTH IN PETITIONER'S COMPLAINT WAS
REJECTED BY THE JURY.  AND, AS I SEE IT, EVERY FACTUAL BASIS ON WHICH A
FINDING COULD BE BASED THAT RESPONDENT HAD NEGLIGENTLY FAILED TO
PROVIDE PETITIONER WITH A SAFE PLACE TO WORK WAS REJECTED BY THE JURY. 
ALL THAT REMAINS TO SHOW THAT THE PASSAGEWAY WAS A DANGEROUS SPOT IS
THE FACT THAT THE ACCIDENT OCCURRED THERE - SOMETHING WHICH, UNTIL NOW,
I HAVE NEVER SUPPOSED COULD BE EQUATED WITH NEGLIGENCE. 
..END :


















GOVERNMENT AND CIVIC EMPLOYEES ORGANIZING COMMITTEE, CIO, V. WINDSOR 353
U.S. 364 


NO. 423.  ARGUED APRIL 29-30, 1957 - DECIDED MAY 13, 1957 - 146 F. SUPP.
214, JUDGMENT VACATED AND CAUSE REMANDED WITH DIRECTIONS. 


IN AN ACTION BROUGHT TO RESTRAIN THE ENFORCEMENT OF A STATE STATUTE ON
FEDERAL CONSTITUTIONAL GROUNDS, THE FEDERAL COURT SHOULD RETAIN
JURISDICTION UNTIL A DEFINITIVE DETERMINATION OF LOCAL LAW QUESTIONS IS
OBTAINED FROM THE LOCAL COURTS; AND THE JUDGMENT OF THE DISTRICT COURT
IN THIS CASE IS VACATED AND THE CAUSE IS REMANDED TO IT WITH DIRECTIONS
TO RETAIN JURISDICTION UNTIL EFFORTS TO OBTAIN AN APPROPRIATE
ADJUDICATION IN THE STATE COURTS HAVE BEEN EXHAUSTED.  PP. 364-367. 

GOVERNMENT AND CIVIC EMPLOYEES ORGANIZING COMMITTEE, CIO, ET AL. V.
WINDSOR ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA. 

PER CURIAM. 

IN 1953, THE ALABAMA LEGISLATURE ENACTED A STATUTE (ALA. LAWS 1953,
NO. 720) WHICH PROVIDES THAT ANY PUBLIC EMPLOYEE WHO JOINS OR
PARTICIPATES IN A "LABOR UNION OR LABOR ORGANIZATION" FORFEITS THE
"RIGHTS, BENEFITS, OR PRIVILEGES WHICH HE ENJOYS AS A RESULT OF HIS
PUBLIC EMPLOYMENT."  SECTION 1 DEFINES A "LABOR UNION OR LABOR
ORGANIZATION" TO INCLUDE AN ORGANIZATION OF EMPLOYEES WHOSE PURPOSE IS
TO DEAL WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR DISPUTES, OR
CONDITIONS OF EMPLOYMENT.  TEACHERS, CERTAIN EMPLOYEES OF THE STATE
DOCKS BOARD AND CITY AND COUNTY EMPLOYEES, HOWEVER, ARE EXEMPTED FROM
THE PROVISIONS OF THE ACT. 

APPELLANTS ARE AN ORGANIZATION COMPOSED OF EMPLOYEES OF GOVERNMENTAL
AND CIVIC AGENCIES, AND A MEMBER OF THE ORGANIZATION WHO IS EMPLOYED BY
A RETAIL LIQUOR STORE OPERATED BY THE ALABAMA ALCOHOLIC BEVERAGE
CONTROL BOARD.  THEY COMMENCED THIS ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA TO ENJOIN THE
ENFORCEMENT OF THE STATE STATUTE ON THE GROUNDS THAT IT ABRIDGED THE
FREEDOMS OF EXPRESSION AND ASSOCIATION OF PUBLIC EMPLOYEES, AND THAT
THE STATUTE VIOLATED THE DUE PROCESS, PRIVILEGES AND IMMUNITIES, AND
EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT. 

THE THREE-JUDGE DISTRICT COURT, CONVENED PURSUANT TO 28 U.S.C. SECS.
2281, 2284, WITHHELD THE EXERCISE OF ITS JURISDICTION, RETAINING THE
CAUSE "FOR A REASONABLE TIME TO PERMIT THE EXHAUSTION OF SUCH STATE
ADMINISTRATIVE AND JUDICIAL REMEDIES AS MAY BE AVAILABLE."  116 F.
SUPP. 354, 359.  WE AFFIRMED THAT JUDGMENT OF THE DISTRICT COURT 347
U.S. 901. 

APPELLANT UNION COMMENCED AN ACTION IN THE ALABAMA COURTS TO OBTAIN
AN "AUTHORITATIVE CONSTRUCTION" OF THE STATE STATUTE.  A BILL IN EQUITY
WAS FILED IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA, PRAYING
THAT THE ENFORCEMENT OF THE STATUTE AGAINST THE UNION OR ITS MEMBERS BE
ENJOINED, AND FOR A DECLARATORY JUDGMENT THAT THE UNION WAS NOT A
"LABOR UNION OR LABOR ORGANIZATION" WITHIN THE MEANING OF THE STATUTE. 
IN ITS COMPLAINT, THE UNION DENIED THAT THE STATUTE APPLIED TO IT OR
ITS MEMBERS.  NONE OF THE CONSTITUTIONAL CONTENTIONS PRESENTED IN THE
ACTION PENDING IN THE UNITED STATES DISTRICT COURT WERE ADVANCED IN THE
STATE COURT ACTION.  AFTER HEARING TESTIMONY, THE CIRCUIT COURT OF
MONTGOMERY COUNTY DENIED THE UNION'S PRAYER FOR RELIEF, HOLDING THAT
THE STATUTE APPLIED TO THE UNION, ITS MEMBERS AND ITS ACTIVITIES.  THE
ALABAMA SUPREME COURT AFFIRMED.  262 ALA. 285, 78 SO. 2D 646.  IT HELD
THAT A LOCAL UNION OPERATING UNDER THE APPELLANT'S RULES AND
CONSTITUTION WOULD BE SUBJECT TO THE PROVISIONS OF THE ACT. 

THE CASE WAS RESUBMITTED TO THE THREE-JUDGE DISTRICT COURT FOR FINAL
DECREE.  THE DISTRICT COURT DISMISSED THE ACTION WITH PREJUDICE, SAYING
THAT THE ALABAMA COURTS HAVE NOT CONSTRUED THE ACT "IN SUCH A MANNER AS
TO RENDER IT UNCONSTITUTIONAL, AND, OF COURSE, WE CANNOT ASSUME THAT
THE STATE COURTS WILL EVER SO CONSTRUE SAID STATUTE."  146 F. SUPP.
214, 216.  WE NOTED PROBABLE JURISDICTION,  352 U.S. 905. 

WE DO NOT REACH THE CONSTITUTIONAL ISSUES.  IN AN ACTION BROUGHT TO
RESTRAIN THE ENFORCEMENT OF A STATE STATUTE ON CONSTITUTIONAL GROUNDS,
THE FEDERAL COURT SHOULD RETAIN JURISDICTION UNTIL A DEFINITIVE
DETERMINATION OF LOCAL LAW QUESTIONS IS OBTAINED FROM THE LOCAL
COURTS.  ONE POLICY SERVED BY THAT PRACTICE IS THAT OF NOT PASSING ON
CONSTITUTIONAL QUESTIONS IN SITUATIONS WHERE AN AUTHORITATIVE
INTERPRETATION OF STATE LAW MAY AVOID THE CONSTITUTIONAL ISSUES. 
SPECTOR MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101, 105.  ANOTHER POLICY
SERVED BY THAT PRACTICE IS THE AVOIDANCE OF THE ADJUDICATION OF
ABSTRACT, HYPOTHETICAL ISSUES.  FEDERAL COURTS WILL NOT PASS UPON
CONSTITUTIONAL CONTENTIONS PRESENTED IN AN ABSTRACT RATHER THAN IN A
CONCRETE FORM.  RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 575,
584.  THE BARE ADJUDICATION BY THE ALABAMA SUPREME COURT THAT THE UNION
IS SUBJECT TO THIS ACT DOES NOT SUFFICE, SINCE THAT COURT WAS NOT ASKED
TO INTERPRET THE STATUTE IN LIGHT OF THE CONSTITUTIONAL OBJECTIONS
PRESENTED TO THE DISTRICT COURT.  IF APPELLANTS' FREEDOM-OF-EXPRESSION
AND EQUAL-PROTECTION ARGUMENTS HAD BEEN PRESENTED TO THE STATE COURT,
IT MIGHT HAVE CONSTRUED THE STATUTE IN A DIFFERENT MANNER. 
ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS VACATED, AND THIS
CAUSE IS REMANDED TO IT WITH DIRECTIONS TO RETAIN JURISDICTION UNTIL
EFFORTS TO OBTAIN AN APPROPRIATE ADJUDICATION IN THE STATE COURTS HAVE
BEEN EXHAUSTED.  IT IS SO ORDERED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















SECURITIES AND EXCHANGE COMMISSION V. LOUISIANA PUBLIC SERVICE
COMMISSION 353 U.S. 368 


NO. 466.  ARGUED APRIL 30, MAY 1, 1957 - DECIDED MAY 13, 1957 - 235 F.2D
167, REVERSED. 


THE ORDERS OF THE SECURTIES AND EXCHANGE COMMISSION MADE JUDICIALLY
REVIEWABLE BY THE LAST TWO SENTENCES OF SEC. 11(B) OF THE PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935 ARE THE DIRECTORY ORDERS MENTIONED
IN, AND AUTHORIZED BY, SUBSECTION (B) OF SEC. 11 OF THE ACT, AND ORDERS
WHICH MAY "REVOKE AND MODIFY" ANY SUCH ORDER PREVIOUSLY MADE UNDER THAT
SUBSECTION; AND THE LANGUAGE REFERRED TO DOES NOT INCLUDE AN ORDER
MERELY DENYING A PETITION TO REOPEN SEC. 11(B) PROCEEDINGS.  PP. 368
372. 

SECURITIES AND EXCHANGE COMMISSION V. LOUISIANA PUBLIC SERVICE
COMMISSION ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

ON JANUARY 29, 1953, THE SECURITIES AND EXCHANGE COMMISSION, PURSUANT
TO SEC. 11(B)(1) OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49
STAT. 820, 15 U.S.C. SEC. 79KB)(1), ISSUED A NOTICE AND ORDER FOR
HEARING DIRECTED TO MIDDLE SOUTH UTILITIES, INC., AND ITS SUBSIDIARY,
LOUISIANA POWER & LIGHT COMPANY, UPON THE MATTER OF "WHETHER MIDDLE
SOUTH AND LOUISIANA POWER SHOULD BE REQUIRED TO TAKE ACTION TO DISPOSE
OF THE GAS UTILITY ASSETS AND NON-UTILITY ASSETS OF LOUISIANA POWER
AND, IF SO, WHAT TERMS AND CONDITIONS SHOULD BE IMPOSED IN CONNECTION
THEREWITH."  A COPY OF THAT NOTICE AND ORDER FOR HEARING WAS SERVED
UPON THOSE COMPANIES AND ALSO UPON THE LOUISIANA PUBLIC SERVICE
COMMISSION BY REGISTERED MAIL. 

A FULL HEARING WAS CONDUCTED BY THE S.E.C. AT WHICH MIDDLE SOUTH AND
LOUISIANA POWER APPEARED, ADDUCED EVIDENCE, AND PRESENTED ARGUMENTS IN
SUPPORT OF THEIR POSITION THAT THEY SHOULD BE PERMITTED TO RETAIN
LOUISIANA POWER'S GAS PROPERTIES AS AN ADDITIONAL INTEGRATED PUBLIC
UTILITY SYSTEM UNDER THE PROVISO TO SEC. 11(B)(1) OF THE ACT.  THE
LOUISIANA PUBLIC SERVICE COMMISSION DID NOT APPEAR IN THAT PRODEEDING. 
ON MARCH 20, 1953, THE S.E.C. ISSUED ITS OPINION, FINDINGS AND ORDER
DIRECTING MIDDLE SOUTH AND LOUISIANA POWER TO DIVEST THEMSELVES OF ALL
THE NON-ELECTRIC ASSETS OF LOUISIANA POWER "IN ANY APPROPRIATE MANNER
NOT IN CONTRAVENTION OF THE APPLICABLE PROVISIONS OF THE ACT," WHICH
GAVE THEM ONE YEAR FOR COMPLIANCE UNDER THE PROVISIONS OF SEC. 11(C) OF
THE ACT, 49 STAT. 821, 15 U.S.C. SEC. 79KC).  NO PETITION TO REVIEW
THAT ORDER WAS EVER FILED, AND IT CEASED TO BE SUBJECT TO JUDICIAL
REVIEW WITH THE EXPIRATION OF THE 60 DAYS ALLOWED TO PETITION FOR THAT
PURPOSE BY SEC. 24(A) OF THE ACT, 49 STAT. 834, 15 U.S.C. SEC. 79XA),
ON MAY 19, 1953. 

THEREAFTER, PURSUANT TO SEC. 11(C) OF THE ACT, THE S.E.C. EXTENDED
THE TIME FOR COMPLIANCE WITH ITS ORDER TO MARCH 20, 1955.  ON NOVEMBER
10, 1954, LOUISIANA POWER AND ITS NEWLY ORGANIZED WHOLLY OWNED
SUBSIDIARY, LOUISIANA GAS SERVICE CORP., FILED A JOINT "APPLICATION
DECLARATION" WITH THE S.E.C., PROPOSING THE TRANSFER BY LOUISIANA POWER
OF ALL ITS NON-ELECTRIC PROPERTIES TO LOUISIANA GAS AS A STEP IN
COMPLAINCE WITH THE DIVESTMENT ORDER OF MARCH 20, 1953, AND EXPRESSING
THE INTENTION OF LOUISIANA POWER TO EFFECT DIVESTMENT OF THE COMMON
STOCK OF LOUISIANA GAS WITHIN 18 MONTHS FROM THE DATE THE LATTER MIGHT
BEGIN OPERATIONS.  THEREUPON, THE S.E.C. ISSUED A NOTICE ADVISING
INTERESTED PERSONS, INCLUDING THE LOUISIANA PUBLIC SERVICE COMMISSION,
OF THE FILING OF THE "APPLICATION-DECLARATION" MENTIONED, AND THAT THEY
MIGHT REQUEST A HEARING ON THAT PROPOSAL.  BY TELEGRAM OF DECEMBER 22,
1954, THE LOUISIANA COMMISSION REQUESTED THE S.E.C. TO GRANT A HEARING
UPON THAT "APPLICATION-DECLARATION" AND TO REOPEN THE SEC. 11(B)(1)
PROCEEDING WHICH HAD RESULTED IN THE DIVESTMENT ORDER OF MARCH 20,
1953.  ON DECEMBER 27, 1954, IT FILED WITH THE S.E.C. A FORMAL PETITION
ACCORDINGLY, WHICH IT SUPPLEMENTED ON JANUARY 3, 1955.  ALSO, AT THE
SUGGESTION OF THE S.E.C., THE LOUISIANA COMMISSION SUBMITTED AN OFFER
OF PROOF AND A BRIEF IN SUPPORT OF ITS PETITION TO REOPEN THE
DIVESTMENT PROCEEDING.  THE OFFER OF PROOF DID NOT INDICATE ANY CHANGE
IN CONDITIONS SINCE THE DIVESTMENT ORDER OF MARCH 20, 1953, BUT,
RATHER, COMPLAINED THAT THE EVIDENCE IN THAT PROCEEDING HAD BEEN
INCOMPLETE AND THAT THE S.E.C.  HAD ACTED, IN PART, UPON AN ERRONEOUS
CONCEPTION OF THE LAW.  THE S.E.C. HEARD ORAL ARGUMENT UPON THE
LOUISIANA COMMISSION'S PETITION TO REOPEN.  THEREAFTER, ON SEPTEMBER
13, 1955, IT FOUND THAT THERE WERE "NO GROUNDS FOR QUESTIONING  ...
ITS EARLIER CONCLUSION AND NO CHANGED CIRCUMSTANCES JURTIFYING A
MODIFICATION" OF ITS DIVESTMENT ORDER OF MARCH 20, 1953, AND IT DENIED
THE PETITION TO REOPEN THAT PROCEEDING. 

THE LOUISIANA COMMISSION THEN FILED A PETITION IN THE COURT OF
APPEALS TO REVIEW THE ORDER OF SEPTEMBER 13, 1955, DENYING ITS PETITION
TO REOPEN, AND ALSO THEREIN STATED THAT IT SOUGHT REVIEW OF THE
DIVESTMENT ORDER OF MARCH 20, 1953.  THE S.E.C. MOVED THE COURT OF
APPEALS TO DISMISS THE PETITION FOR REVIEW UPON THE GROUND THAT THE
ORDER OF SEPTEMBER 13, 1955, WAS NOT JUDICIALLY REVIEWABLE AND THAT THE
PETITION FOR REVIEW WAS IN ESSENCE AN ATTEMPT TO APPEAL FROM THE
DIVESTMENT ORDER OF MARCH 20, 1953, LONG AFTER THE TIME ALLOWED BY LAW
TO DO SO HAD EXPIRED.  THE COURT OF APPEALS HELD THAT THE ORDER OF
SEPTEMBER 13, 1955, WAS REVIEWABLE, AND IT SET ASIDE THAT ORDER.  IT
ALSO HELD THAT LEGAL DETERMINATIONS MADE BY THE S.E.C. IN ITS
DIVESTMENT ORDER OF MARCH 20, 1953, WERE ERRONEOUS, AND IT, IN EFFECT,
SET ASIDE THAT ORDER TOO.  235 F.2D 167.  WE GRANTED CERTIORARI.  352
U.S. 924. 

THE CONCLUSION OF THE COURT OF APPEALS THAT THE ORDER OF SEPTEMBER
13, 1955, WAS SUBJECT TO JUDICIAL REVIEW WAS RESTED UPON THE LAST TWO
SENTENCES OF SEC. 11(B) OF THE ACT, 49 STAT.  820, 15 U.S.C. SEC.
79KB), READING:  "THE COMMISSION MAY BY ORDER REVOKE OR MODIFY ANY
ORDER PREVIOUSLY MADE UNDER THIS SUBSECTION, IF, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, IT FINDS THAT THE CONDITIONS UPON WHICH THE
ORDER WAS PREDICATED DO NOT EXIST.  ANY ORDER MADE UNDER THIS
SUBSECTION SHALL BE SUBJECT TO JUDICIAL REVIEW AS PROVIDED IN SECTION
79X OF THIS TITLE."  IT HELD THAT THE SECURITIES AND EXCHANGE
COMMISSION'S ORDER OF SEPTEMBER 13, 1955, DENYING THE LOUISIANA
COMMISSION'S PETITION TO REOPEN THE DIVESTMENT PROCEEDING WAS AN
"ORDER" SPECIFICALLY MADE SUBJECT TO JUDICIAL REVIEW BY THE QUOTED
LANGUAGE. 

WE TAKE A DIFFERENT VIEW.  WE HOLD THAT THE ORDERS MADE JUDICIALLY
REVIEWABLE BY THE QUOTED LANGUAGE ARE THE DIRECTORY ORDERS MENTIONED
IN, AND AUTHORIZED BY, SUBSECTION (B) OF SEC. 11 OF THE ACT, AND ORDERS
WHICH MAY "REVOKE OR MODIFY" ANY SUCH ORDER PREVIOUSLY MADE UNDER THAT
SUBSECTION, AND THAT THE QUOTED LANGUAGE DOES NOT INCLUDE AN ORDER
MERELY DENYING A PETITION TO REOPEN SEC. 11(B) PROCEEDINGS.  IT FOLLOWS
THAT THE SECURITES AND EXCHANGE COMMISSION'S ORDER OF SEPTEMBER 13,
1955, DENYING THE LOUISIANA COMMISSION'S PETITION TO REOPEN THE
DIVESTMENT PROCEEDING WAS NOT AN ORDER WHICH WAS SUBJECT TO JUDICIAL
REVIEW, AND THE JUDGMENT OF THE COURT OF APPEALS MUST ACCORDINGLY BE
REVERSED.  IT IS SO ORDERED. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













SCHWARE V. BOARD OF BAR EXAMINERS OF NEW MEXICO 353 U.S. 232 


NO. 92.  ARGUED JANUARY 14-15, 1957 - DECIDED MAY 6, 1957 - 60 N.M. 304,
291 P.2D 607, REVERSED AND REMANDED. 


IN 1953 THE BOARD OF BAR EXAMINERS OF NEW MEXICO REFUSED TO PERMIT
PETITIONER TO TAKE THE BAR EXAMINATION, ON THE GROUND THAT HE HAD NOT
SHOWN "GOOD MORAL CHARACTER," AND THEREBY PRECLUDED HIS ADMISSION TO
THE BAR OF THAT STATE.  IT WAS CONCEDED THAT PETITIONER WAS QUALIFIED
IN ALL OTHER RESPECTS.  PETITIONER MADE A STRONG SHOWING OF GOOD MORAL
CHARACTER, EXCEPT THAT IT APPEARED THAT FROM 1933 TO 1937 HE HAD USED
CERTAIN ALIASES, THAT HE HAD BEEN ARRESTED (BUT NEVER TRIED OR
CONVICTED) ON SEVERAL OCCASIONS PRIOR TO 1940, AND THAT FROM 1932 TO
1940 HE WAS A MEMBER OF THE COMMUNIST PARTY.  THE STATE SUPREME COURT
SUSTAINED THE BOARD.  HELD:  ON THE RECORD IN THIS CASE, THE STATE OF
NEW MEXICO DEPRIVED PETITIONER OF DUE PROCESS IN DENYING HIM THE
OPPORTUNITY TO QUALIFY FOR THE PRACTICE OF LAW.  PP. 233-247. 

(A)  A STATE CANNOT EXCLUDE A PERSON FROM THE PRACTICE OF LAW OR FROM
ANY OTHER OCCUPATION IN A MANNER OR FOR REASONS THAT CONTRAVENE THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 238-239. 

(B)  A STATE CAN REQUIRE HIGH STANDARDS OF QUALIFICATIONS, SUCH AS
GOOD MORAL CHARACTER OR PROFICIENCY IN ITS LAW, BEFORE IT ADMITS AN
APPLICANT TO THE BAR; BUT ANY QUALIFICATION MUST HAVE A RATIONAL
CONNECTION WITH THE APPLICANT'S FITNESS OR CAPACITY TO PRACTICE LAW. 
P. 239. 

(C)  EVEN IN APPLYING PERMISSIBLE STANDARDS, OFFICERS OF THE STATE
CANNOT EXCLUDE AN APPLICANT WHEN THERE IS NO BASIS FOR THEIR FINDING
THAT HE FAILS TO MEET THESE STANDARDS, OR WHEN THEIR ACTION IS
INVIDIOUSLY DISCRIMINATORY.  P. 239. 

(D)  WHETHER THE PRACTICE OF LAW IS A "RIGHT" OR A "PRIVILEGE" NEED
NOT HERE BE DETERMINED; IT IS NOT A MATTER OF THE STATE'S GRACE, AND A
PERSON CANNOT BE BARRED EXCEPT FOR VALID REASONS.  P. 239, N. 5. 

(E)  PETITIONER'S USE FROM 1934 TO 1937 OF CERTAIN ALIASES, FOR
PURPOSES WHICH WERE NOT WRONG AND NOT TO CHEAT OR DEFRAUD, DOES NOT
SUPPORT AN INFERENCE OF BAD MORAL CHARACTER MORE THAN 20 YEARS LATER. 
PP. 240-241. 

(F)  THE ARRESTS OF PETITIONER ARE INSUFFICIENT TO SUPPORT A FINDING
THAT HE HAD BAD MORAL CHARACTER AT THE TIME HE APPLIED TO TAKE THE BAR
EXAMINATION.  PP. 241-243. 

(G)  PETITIONER'S MEMBERSHIP IN THE COMMUNIST PARTY FROM 1932 TO 1940
DOES NOT JUSTIFY AN INFERENCE THAT HE PRESENTLY HAS BAD MORAL
CHARACTER.  PP. 243-246. 

(H)  THE USE OF ALIASES, THE ARRESTS, AND FORMER MEMBERSHIP IN THE
COMMUNIST PARTY DO NOT IN COMBINATION WARRANT EXCLUSION OF PETITIONER
FROM THE PRACTICE OF LAW.  P. 246. 

(I)  IN THE LIGHT OF PETITIONER'S FORCEFUL SHOWING OF GOOD MORAL
CHARACTER, THE EVIDENCE UPON WHICH THE STATE RELIES CANNOT BE SAID TO
RAISE SUBSTANTIAL DOUBTS AS TO HIS PRESENT GOOD MORAL CHARACTER.  P.
246. 

SCHWARE V. BOARD OF BAR EXAMINERS OF NEW MEXICO. 

CERTIORARI TO THE SUPREME COURT OF NEW MEXICO. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER PETITIONER, RUDOLPH SCHWARE, HAS
BEEN DENIED A LICENSE TO PRACTICE LAW IN NEW MEXICO IN VIOLATION OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION. 

NEW MEXICO HAS A SYSTEM FOR THE LICENSING OF PERSONS TO PRACTICE LAW
SIMILAR TO THAT IN EFFECT IN MOST STATES.  (FN1)  A BOARD OF BAR
EXAMINERS DETERMINES IF CANDIDATES FOR ADMISSION TO THE BAR HAVE THE
NECESSARY QUALIFICATIONS.  WHEN THE BOARD CONCLUDES THAT AN APPLICANT
QUALIFIES IT RECOMMENDS TO THE STATE SUPREME COURT THAT HE BE
ADMITTED.  IF THE COURT ACCEPTS THE RECOMMENDATION, THE APPLICANT IS
ENTITLED TO PRACTICE LAW UPON TAKING AN OATH TO SUPPORT THE
CONSTITUTIONS AND LAWS OF THE UNITED STATES AND NEW MEXICO.  AN
APPLICANT MUST PASS A BAR EXAMINATION BEFORE THE BOARD WILL GIVE HIM
ITS RECOMMENDATION.  THE BOARD CAN REFUSE TO PERMIT HIM TO TAKE THIS
EXAMINATION UNLESS HE DEMONSTRATES THAT HE HAS "GOOD MORAL CHARACTER." 

IN DECEMBER 1953, ON THE EVE OF HIS GRADUATION FROM THE UNIVERSITY OF
NEW MEXICO SCHOOL OF LAW, SCHWARE FILED AN APPLICATION WITH THE BOARD
OF BAR EXAMINERS REQUESTING THAT HE BE PERMITTED TO TAKE THE BAR
EXAMINATION SCHEDULED FOR FEBRUARY 1954.  HIS APPLICATION WAS SUBMITTED
ON A FORM PRESCRIBED BY THE BOARD THAT REQUIRED ANSWERS TO A LARGE
NUMBER OF QUESTIONS.  FROM THE RECORD, IT APPEARS THAT HE ANSWERED
THESE QUESTIONS IN DETAIL.  AMONG OTHER THINGS, HE DISCLOSED THAT HE
HAD USED CERTAIN ALIASES BETWEEN 1933 AND 1937 AND THAT HE HAD BEEN
ARRESTED ON SEVERAL OCCASIONS PRIOR TO 1940.  WHEN HE APPEARED TO TAKE
THE EXAMINATION, THE BOARD INFORMED HIM THAT HE COULD NOT DO SO.  HE
LATER REQUESTED A FORMAL HEARING ON THE DENIAL OF HIS APPLICATION.  THE
BOARD GRANTED HIS REQUEST.  AT THE HEARING THE BOARD TOLD HIM FOR THE
FIRST TIME WHY IT HAD REFUSED TO PERMIT HIM TO TAKE THE BAR
EXAMINATION.  IT GAVE HIM A COPY OF THE MINUTES OF THE MEETING AT WHICH
IT HAD VOTED TO DENY HIS APPLICATION.  THESE MINUTES READ: 

"NO. 1309, RUDOLPH SCHWARE.  IT IS MOVED BY BOARD MEMBER FRANK
ANDREWS THAT THE APPLICATION OF RUDOLPH SCHWARE TO TAKE THE BAR
EXAMINATION BE DENIED FOR THE REASON THAT, TAKING INTO CONSIDERATION
THE USE OF ALIASES BY THE APPLICANT, HIS FORMER CONNECTION WITH
SUBVERSIVE ORGANIZATIONS, AND HIS RECORD OF ARRESTS, HE HAS FAILED TO
SATISFY THE BOARD AS TO THE REQUISITE MORAL CHARACTER FOR ADMISSION TO
THE BAR OF NEW MEXICO.  WHEREUPON SAID MOTION IS DULY SECONDED BY BOARD
MMEBER ROSS L. MALONE, AND UNANIMOUSLY PASSED."  (FN2) 

AT THE HEARING PETITIONER CALLED HIS WIFE, THE RABBI OF HIS
SYNAGOGUE, A LOCAL ATTORNEY AND THE SECRETARY TO THE DEAN OF THE LAW
SCHOOL TO TESTIFY ABOUT HIS CHARACTER.  (FN3)  HE TOOK THE STAND
HIMSELF AND WAS THOROUGHLY EXAMINED UNDER OATH BY THE BOARD.  HIS
COUNSEL INTRODUCED A SERIES OF LETTERS THAT PETITIONER HAD WRITTEN HIS
WIFE FROM 1944 THROUGH 1946 WHILE HE WAS ON DUTY IN THE ARMY.  LETTERS
WERE ALSO INTRODUCED FROM EVERY MEMBER OF PETITIONER'S LAW SCHOOL
GRADUATING CLASS EXCEPT ONE WHO DID NOT COMMENT.  AND ALL OF HIS LAW
SCHOOL PROFESSORS WHO WERE THEN AVAILABLE WROTE IN REGARD TO HIS MORAL
CHARACTER.  THE BOARD CALLED NO WITNESSES AND INTRODUCED NO EVIDENCE. 

THE RECORD OF THE FORMAL HEARING SHOWS THE FOLLOWING FACTS RELEVANT
TO SCHWARE'S MORAL CHARACTER.  HE WAS BORN IN A POOR SECTION OF NEW
YORK CITY IN 1914 AND GREW UP IN A NEIGHBORHOOD INHABITED PRIMARILY BY
RECENT IMMIGRANTS.  HIS FATHER WAS AN IMMIGRANT AND LIKE MANY OF HIS
NEIGHBORS HAD A DIFFICULT TIME PROVIDING FOR HIS FAMILY.  SCHWARE TOOK
A JOB WHEN HE WAS NINE YEARS OLD AND THROUGHOUT THE REMAINDER OF SCHOOL
WORKED TO HELP PROVIDE NECESSARY INCOME FOR HIS FAMILY.  AFTER 1929,
THE ECONOMIC CONDITION OF THE SCHWARE FAMILY AND THEIR NEIGHBORS, AS
WELL AS MILLIONS OF OTHERS, WAS GREATLY WORSENED.  SCHWARE WAS THEN AT
A FORMATIVE STAGE IN HIGH SCHOOL.  HE WAS INTERESTED IN AND
ENTHUSIASTIC FOR SOCIALISM AND TRADE-UNIONISM AS WAS HIS FATHER.  IN
1932, DESPAIRING AT WHAT HE CONSIDERED LACK OF VIGOR IN THE SOCIALIST
MOVEMENT AT A TIME WHEN THE COUNTRY WAS IN THE DEPTHS OF THE GREAT
DEPRESSION, HE JOINED THE YOUNG COMMUNIST LEAGUE.  (FN4)  AT THIS TIME
HE WAS 18 YEARS OLD AND IN THE FINAL YEAR OF HIGH SCHOOL. 

FROM THE TIME HE LEFT SCHOOL UNTIL 1940 SCHWARE, LIKE MANY OTHERS,
WAS PERIODICALLY UNEMPLOYED.  HE WORKED AT A GREAT VARIETY OF TEMPORARY
AND ILL-PAYING JOBS.  IN 1933, HE FOUND WORK IN A GLOVE FACTORY AND
THERE HE PARTICIPATED IN A SUCCESSFUL EFFORT TO UNIONIZE THE
EMPLOYEES.  SINCE THESE WORKERS WERE PRINCIPALLY ITALIAN, SCHWARE
ASSUMED THE NAME RUDOLPH DI CAPRIO TO FORESTALL THE EFFECTS OF ANTI
JEWISH PREJUDICE AGAINST HIM, NOT ONLY IN SECURING AND RETAINING A JOB
BUT IN ASSISTING IN THE ORGANIZATION OF HIS FELLOW EMPLOYEES.  IN 1934
HE WENT TO CALIFORNIA WHERE HE SECURED WORK ON THE DOCKS.  HE TESTIFIED
THAT HE CONTINUED TO USE THE NAME RUDOLPH DI CAPRIO BECAUSE JEWS WERE
DISCRIMINATED AGAINST IN EMPLOYMENT FOR THIS WORK.  WHEREVER SCHWARE
WAS EMPLOYED HE WAS AN ACTIVE ADVOCATE OF LABOR ORGANIZATION.  IN 1934
HE TOOK PART IN THE GREAT MARITIME STRIKES ON THE WEST COAST WHICH WERE
BITTERLY FOUGHT ON BOTH SIDES.  WHILE ON STRIKE IN SAN PEDRO,
CALIFORNIA, HE WAS ARRESTED TWICE ON "SUSPICION OF CRIMINAL
SYNDICALISM."  HE WAS NEVER FORMALLY CHARGED NOR TRIED AND WAS RELEASED
IN EACH INSTANCE AFTER BEING HELD FOR A BRIEF PERIOD.  HE TESTIFIED
THAT THE SAN PEDRO POLICE IN A SERIES OF MASS ARRESTS JAILED LARGE
NUMBERS OF THE STRIKERS. 

AT THE TIME OF HIS FATHER'S DEATH IN 1937 SCHWARE LEFT THE COMMUNIST
PARTY BUT LATER HE REJOINED.  IN 1940 HE WAS ARRESTED AND INDICTED FOR
VIOLATING THE NEUTRALITY ACT OF 1917.  HE WAS CHARGED WITH ATTEMPTING
TO INDUCE MEN TO VOLUNTEER FOR DUTY ON THE SIDE OF THE LOYALIST
GOVERNMENT IN THE SPANISH CIVIL WAR.  BEFORE HIS CASE CAME TO TRIAL THE
CHARGES WERE DISMISSED AND HE WAS RELEASED.  LATER IN 1940 HE QUIT THE
COMMUNIST PARTY.  THE NAZI-SOVIET NON-AGGRESSION PACT OF 1939 HAD
GREATLY DISILLUSIONED HIM AND THIS DISILLUSIONMENT WAS MADE COMPLETE AS
HE CAME TO BELIEVE THAT CERTAIN LEADERS IN THE PARTY WERE ACTING TO
ADVANCE THEIR OWN SELFISH INTERESTS RATHER THAN THE INTERESTS OF THE
WORKING CLASS WHICH THEY PURPORTED TO REPRESENT. 

IN 1944 SCHWARE ENTERED THE ARMED FORCES OF THE UNITED STATES.  WHILE
IN THE SERVICE HE VOLUNTEERED FOR DUTY AS A PARATROOPER AND WAS SENT TO
NEW GUINEA.  WHILE SERVING IN THE ARMY HERE AND ABROAD HE WROTE A
NUMBER OF LETTERS TO HIS WIFE.  THESE LETTERS SHOW A DESIRE TO SERVE
HIS COUNTRY AND DEMONSTRATE FAITH IN A FREE DEMOCRATIC SOCIETY.  THEY
REVEAL SERIOUS THOUGHTS ABOUT RELIGION WHICH LATER LED HIM AND HIS WIFE
TO ASSOCIATE THEMSELVES WITH A SYNAGOGUE WHEN HE RETURNED TO CIVILIAN
LIFE.  HE WAS HONORABLY DISCHARGED FROM THE ARMY IN 1946. 

AFTER FINISHING COLLEGE, HE ENTERED THE UNIVERSITY OF NEW MEXICO LAW
SCHOOL IN 1950.  AT THE BEGINNING HE WENT TO THE DEAN AND TOLD HIM OF
HIS PAST ACTIVITIES AND HIS ASSOCIATION WITH THE COMMUNIST PARTY DURING
THE DEPRESSION AND ASKED FOR ADVICE.  THE DEAN TOLD HIM TO REMAIN IN
SCHOOL AND PUT BEHIND HIM WHAT HAD HAPPENED YEARS BEFORE.  WHILE
STUDYING LAW SCHWARE OPERATED A BUSINESS IN ORDER TO SUPPORT HIS WIFE
AND TWO CHILDREN AND TO PAY THE EXPENSES OF A PROFESSIONAL EDUCATION. 
DURING HIS THREE YEARS AT THE LAW SCHOOL HIS CONDUCT WAS EXEMPLARY. 

AT THE CONCLUSION OF THE HEARING THE BOARD REAFFIRMED ITS DECISION
DENYING SCHWARE THE RIGHT TO TAKE THE BAR EXAMINATION.  HE APPEALED TO
THE NEW MEXICO SUPREME COURT.  THAT COURT UPHELD THE DENIAL WITH ONE
JUSTICE DISSENTING.  60 N.M. 304, 291 P.2D 607.  IN DENYING A MOTION
FOR REHEARING THE COURT STATED THAT: 

"SCHWARE'S MEMBERSHIP IN THE COMMUNIST PARTY, TOGETHER WITH HIS OTHER
FORMER ACTIONS IN THE USE OF ALIASES AND RECORD OF ARRESTS, AND HIS
PRESENT ATTITUDE TOWARD THOSE MATTERS, WERE THE CONSIDERATIONS UPON
WHICH WE APPROVED THE DENIAL OF HIS APPLICATION." 

SCHWARE THEN PETITIONED THIS COURT TO REVIEW HIS CASE ALLEGING THAT
HE HAD BEEN DENIED AN OPPORTUNITY TO QUALIFY FOR THE PRACTICE OF LAW
CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  WE
GRANTED CERTIORARI.  352 U.S. 821.  CF. IN RE SUMMERS, 325 U.S. 561,
562, 564-569.  AND SEE KONIGSBERG V. STATE BAR OF CALIFORNIA, POST, P.
252, DECIDED THIS DAY. 

A STATE CANNOT EXCLUDE A PERSON  FROM THE PRACTICE OF LAW OR FROM ANY
OTHER OCCUPATION IN A MANNER OR FOR REASONS THAT CONTRAVENE THE DUE
PROCESS OR EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  (FN5)
DENT V. WEST VIRGINIA, 129 U.S. 114.  CF. SLOCHOWER V. BOARD OF
EDUCATION, 350 U.S. 551; WIEMAN V. UPDEGRAFF, 344 U.S. 183.  AND SEE EX
PARTE SECOMBE, 19 HOW.  9, 13.  A STATE CAN REQUIRE HIGH STANDARDS OF
QUALIFICATION, SUCH AS GOOD MORAL CHARACTER OR PROFICIENCY IN ITS LAW,
BEFORE IT ADMITS AN APPLICANT TO THE BAR, BUT ANY QUALIFICATION MUST
HAVE A RATIONAL CONNECTION WITH THE APPLICANT'S FITNESS OR CAPACITY TO
PRACTICE LAW.  DOUGLAS V. NOBLE, 261 U.S. 165; CUMMINGS V. MISSOURI, 4
WALL.  277, 319-320.  CF. NEBBIA V. NEW YORK, 291 U.S. 502.  OBVIOUSLY
AN APPLICANT COULD NOT BE EXCLUDED MERELY BECAUSE HE WAS A REPUBLICAN
OR A NEGRO OR A MEMBER OF A PARTICULAR CHURCH.  EVEN IN APPLYING
PERMISSIBLE STANDARDS, OFFICERS OF A STATE CANNOT EXCLUDE AN APPLICANT
WHEN THERE IS NO BASIS FOR THEIR FINDING THAT HE FAILS TO MEET THESE
STANDARDS, OR WHEN THEIR ACTION IS INVIDIOUSLY DISCRIMINATORY.  CF.
YICK WO V. HOPKINS, 118 U.S. 356. 

HERE THE STATE CONCEDES THAT SCHWARE IS FULLY QUALIFIED TO TAKE THE
EXAMINATION IN ALL RESPECTS OTHER THAN GOOD MORAL CHARACTER.  THEREFORE
THE QUESTION IS WHETHER THE SUPREME COURT OF NEW MEXICO ON THE RECORD
BEFORE US COULD REASONABLY FIND THAT HE HAD NOT SHOWN GOOD MORAL
CHARACTER. 

THERE IS NOTHING IN THE RECORD WHICH SUGGESTS THAT SCHWARE HAS
ENGAGED IN ANY CONDUCT DURING THE PAST 15 YEARS WHICH REFLECTS
ADVERSELY ON HIS CHARACTER.  THE NEW MEXICO SUPREME COURT RECOGNIZED
THAT HE "PRESENTLY ENJOYS GOOD REPUTE AMONG HIS TEACHERS, HIS FELLOW
STUDENTS AND ASSOCIATES AND IN HIS SYNAGOGUE."  SCHWARE'S PROFESSORS,
HIS FELLOW STUDENTS, HIS BUSINESS ASSOCIATES AND THE RABBI OF THE
SYNAGOGUE OF WHICH HE AND HIS FAMILY ARE MEMBERS, ALL GAVE TESTIMONY
THAT HE IS A GOOD MAN, A MAN WHO IS IMBUED WITH A SENSE OF DEEP
RESPONSIBILITY FOR HIS FAMILY, WHO IS TRUSTWORTHY, WHO RESPECTS THE
RIGHTS AND BELIEFS OF OTHERS.  FROM THE RECORD IT APPEARS HE IS A MAN
OF RELIGIOUS CONVICTION AND IS TRAINING HIS CHILDREN IN THE BELIEFS AND
PRACTICES OF HIS FAITH.  A SOLICITUDE FOR OTHERS IS DEMONSTRATED BY THE
FACT THAT HE REGULARLY READ THE BIBLE TO AN ILLITERATE SOLDIER WHILE IN
THE ARMY AND LAW TO A BLIND STUDENT WHILE AT THE UNIVERSITY OF NEW
MEXICO LAW SCHOOL.  HIS INDUSTRY IS DEPICTED BY THE FACT THAT HE
SUPPORTED HIS WIFE AND TWO CHILDREN AND PAID FOR A COSTLY PROFESSIONAL
EDUCATION BY OPERATING A BUSINESS SEPARATELY WHILE STUDYING LAW.  HE
DEMONSTRATED CANDOR BY INFORMING THE BOARD OF HIS PERSONAL HISTORY AND
BY GOING TO THE DEAN OF THE LAW SCHOOL AND DISCLOSING HIS PAST.  THE
UNDISPUTED EVIDENCE IN THE RECORD SHOWS SCHWARE TO BE A MAN OF HIGH
IDEALS WITH A DEEP SENSE OF SOCIAL JUSTICE.  NOT A SINGLE WITNESS
TESTIFIED THAT HE WAS NOT A MAN OF GOOD CHARACTER. 

DESPITE SCHWARE'S SHOWING OF GOOD CHARACTER, THE BOARD AND COURT
BELOW THOUGHT THERE WERE CERTAIN FACTS IN THE RECORD WHICH RAISED
SUBSTANTIAL DOUBTS ABOUT HIS MORAL FITNESS TO PRACTICE LAW. 

(1)  ALIASES.  - FROM 1934 TO 1937 SCHWARE USED CERTAIN ALIASES.  HE
TESTIFIED THAT THESE ALIASES WERE ADOPTED SO HE COULD SECURE A JOB IN
BUSINESSES WHICH DISCRIMINATED AGAINST JEWS IN THEIR EMPLOYMENT
PRACTICES AND SO THAT HE COULD MORE EFFECTIVELY ORGANIZE NON-JEWISH
EMPLOYEES AT PLANTS WHERE HE WORKED.  OF COURSE IT IS WRONG TO USE AN
ALIAS WHEN IT IS DONE TO CHEAT OR DEFRAUD ANOTHER BUT IT CAN HARDLY BE
SAID THAT SCHWARE'S ATTEMPT TO FORESTALL ANTI-SEMITISM IN SECURING
EMPLOYMENT OR ORGANIZING HIS FELLOW WORKERS WAS WRONG.  HE DID GIVE AN
ASSUMED NAME TO POLICE IN 1934 WHEN HE WAS PICKED UP IN A MASS ARREST
DURING A LABOR DISPUTE.  HE SAID HE DID THIS SO HE WOULD NOT BE FIRED
AS A STRIKER.  THIS IS CERTAINLY NOT ENOUGH EVIDENCE TO SUPPORT AN
INFERENCE THAT PETITIONER HAS BAD MORAL CHARACTER MORE THAN 20 YEARS
LATER. 

(2)  ARRESTS.  - IN RESPONSE TO THE QUESTIONS ON THE BOARD'S
APPLICATION FORM SCHWARE STATED THAT HE HAD BEEN ARRESTED ON SEVERAL
OCCASIONS: 

1.  IN 1934, WHILE HE WAS PARTICIPATING IN A BITTER LABOR DISPUTE IN
THE CALIFORNIA SHIPYARDS, PETITIONER WAS ARRESTED AT LEAST TWO TIMES ON
"SUSPICION OF CRIMINAL SYNDICALISM."  AFTER BEING HELD FOR A BRIEF
PERIOD HE WAS RELEASED WITHOUT FORMAL CHARGES BEING FILED AGAINST HIM. 
HE WAS NEVER INDICTED NOR CONVICTED FOR ANY OFFENSE IN CONNECTION WITH
THESE ARRESTS. 

THE MERE FACT THAT A MAN HAS BEEN ARRESTED HAS VERY LITTLE, IF ANY,
PROBATIVE VALUE IN SHOWING THAT HE HAS ENGAGED IN ANY MISCONDUCT. 
(FN6)  AN ARREST SHOWS NOTHING MORE THAN THAT SOMEONE PROBABLY
SUSPECTED THE PERSON APPREHENDED OF AN OFFENSE.  WHEN FORMAL CHARGES
ARE NOT FILED AGAINST THE ARRESTED PERSON AND HE IS RELEASED WITHOUT
TRIAL, WHATEVER PROBATIVE FORCE THE ARREST MAY HAVE HAD IS NORMALLY
DISSIPATED.  MOREOVER HERE, THE SPECIAL FACTS SURROUNDING THE 1934
ARRESTS ARE RELEVANT IN SHEDDING LIGHT ON THEIR PRESENT SIGNIFICANCE. 
APPARENTLY GREAT NUMBERS OF STRIKERS WERE PICKED UP BY POLICE IN A
SERIES OF ARRESTS DURING THE STRIKE AT SAN PEDRO AND MANY OF THESE WERE
CHARGED WITH "CRIMINAL SYNDICALISM."  (FN7)  THE CALIFORNIA SYNDICALISM
STATUTES IN EFFECT IN 1934 WERE VERY BROAD AND VAGUE.  (FN8)  THERE IS
NOTHING IN THE RECORD WHICH INDICATES WHY SCHWARE WAS ARRESTED ON
"SUSPICION" THAT HE HAD VIOLATED THIS STATUTE.  THERE IS NO SUGGESTION
THAT HE WAS USING FORCE OR VIOLENCE IN AN ATTEMPT TO OVERTHROW THE
STATE OR NATIONAL GOVERNMENT.  AGAIN IT SHOULD BE EMPHASIZED THAT THESE
ARRESTS WERE MADE MORE THAN 20 YEARS AGO AND PETITIONER WAS NEVER
FORMALLY CHARGED NOR TRIED FOR ANY OFFENSE RELATED TO THEM. 

2.  IN 1940 SCHWARE WAS ARRESTED FOR VIOLATING THE NEUTRALITY ACT OF
1917 WHICH MAKES IT UNLAWFUL FOR A PERSON WITHIN THE UNITED STATES TO
JOIN OR TO HIRE OR RETAIN ANOTHER TO JOIN THE ARMY OF ANY FOREIGN
STATE.  (FN9)  HE WAS INDICTED BUT BEFORE THE CASE CAME TO TRIAL THE
PROSECUTION DROPPED THE CHARGES.  HE HAD BEEN CHARGED WITH RECRUITING
PERSONS TO GO OVERSEAS TO AID THE LOYALISTS IN THE SPANISH CIVIL WAR. 
SCHWARE TESTIFIED THAT HE WAS UNAWARE OF THIS OLD LAW AT THE TIME. 
FROM THE FACTS IN THE RECORD IT IS NOT CLEAR THAT HE WAS GUILTY OF ITS
VIOLATION.  (FN10)  BUT EVEN IF IT BE ASSUMED THAT THE LAW WAS
VIOLATED, IT DOES NOT SEEM THAT SUCH AN OFFENSE INDICATED MORAL
TURPITUDE - EVEN IN 1940.  MANY PERSONS IN THIS COUNTRY ACTIVELY
SUPPORTED THE SPANISH LOYALIST GOVERNMENT.  DURING THE PRELUDE TO WORLD
WAR II MANY IDEALISTIC YOUNG MEN VOLUNTEERED TO HELP CAUSES THEY
BELIEVED RIGHT.  IT IS COMMONLY KNOWN THAT A NUMBER OF AMERICANS JOINED
AIR SQUADRONS AND HELPED DEFEND CHINA AND GREAT BRITAIN PRIOR TO THIS
COUNTRY'S ENTRY INTO THE WAR.  THERE IS NO RECORD THAT ANY OF THESE
VOLUNTEERS WERE PROSECUTED UNDER THE NEUTRALITY ACT.  FEW AMERICANS
WOULD HAVE REGARDED THEIR CONDUCT AS EVIDENCE OF MORAL TURPITUDE.  IN
DETERMINING WHETHER A PERSON'S CHARACTER IS GOOD THE NATURE OF THE
OFFENSE WHICH HE HAS COMMITTED MUST BE TAKEN INTO ACCOUNT.  (FN11) 

IN SUMMARY, THESE AREESTS ARE WHOLLY INSUFFICIENT TO SUPPORT A
FINDING THAT SCHWARE HAD BAD MORAL CHARACTER AT THE TIME HE APPLIED TO
TAKE THE BAR EXAMINATION.  (FN12)  THEY ALL OCCURRED MANY YEARS AGO AND
IN NO CASE WAS HE EVER TRIED OR CONVICTED FOR THE OFFENSE FOR WHICH HE
WAS ARRESTED. 

(3)  MEMBERSHIP IN THE COMMUNIST PARTY.  - SCHWARE ADMITTED THAT HE
WAS A MEMBER OF THE COMMUNIST PARTY FROM 1932 TO 1940.  APPARENTLY THE
SUPREME COURT OF NEW MEXICO PLACED HEAVY EMPHASIS ON THIS PAST
MEMBERSHIP IN DENYING HIS APPLICATION.  (FN13)  IT STATED: 

"WE BELIEVE ONE WHO HAS KNOWINGLY GIVEN HIS LOYALTIES TO THE COMMUNIST
PARTY FOR SIX TO SEVEN YEARS DURING A PERIOD OF RESPONSIBLE ADULTHOOD
IS A PERSON OF QUESTIONABLE CHARACTER."  60 N.M., AT 319, 291 P.2D, AT
617. 

THE COURT ASSUMED THAT IN THE 1930'S WHEN PETITIONER WAS A MEMBER OF
THE COMMUNIST PARTY, IT WAS DOMINATED BY A FOREIGN POWER AND WAS
DEDICATED TO THE VIOLENT OVERTHROW OF THE GOVERNMENT AND THAT EVERY
MEMBER WAS AWARE OF THIS.  IT BASED THIS ASSUMPTION PRIMARILY ON A VIEW
OF THE NATURE AND PURPOSES OF THE COMMUNIST PARTY AS OF 1950 EXPRESSED
IN A CONCURRING OPINION IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382, 422.  HOWEVER THAT VIEW DID NOT PURPORT TO BE A FACTUAL
FINDING IN THAT CASE AND OBVIOUSLY IT CANNOT BE USED AS A SUBSTITUTE
FOR EVIDENCE IN THIS CASE TO SHOW THAT PETITIONER PARTICIPATED IN ANY
ILLEGAL ACTIVITY OR DID ANYTHING MORALLY REPREHENSIBLE AS A MEMBER OF
THAT PARTY.  DURING THE PERIOD WHEN SCHWARE WAS A MEMBER, THE COMMUNIST
PARTY WAS A LAWFUL POLITICAL PARTY WITH CANDIDATES ON THE BALLOT IN
MOST STATES.  (FN14)  THERE IS NOTHING IN THE RECORD THAT GIVES ANY
INDICATION THAT HIS ASSOCIATION WITH THAT PARTY WAS ANYTHING MORE THAN
A POLITICAL FAITH IN A POLITICAL PARTY.  THAT FAITH MAY HAVE BEEN
UNORTHODOX.  BUT AS COUNSEL FOR NEW MEXICO SAID IN HIS BRIEF, "MERE
UNORTHODOXY IN THE FIELD OF POLITICAL AND SOCIAL IDEAS DOES NOT AS A
MATTER OF FAIR AND LOGICAL INFERENCE, NEGATIVE 'GOOD MORAL
CHARACTER.'"  (FN15) 

SCHWARE JOINED THE COMMUNIST PARTY WHEN HE WAS A YOUNG MAN DURING THE
MIDST OF THIS COUNTRY'S GREATEST DEPRESSION.  APPARENTLY MANY THOUSANDS
OF OTHER AMERICANS JOINED HIM IN THIS STEP.  (FN16) DURING THE
DEPRESSION WHEN MILLIONS WERE UNEMPLOYED AND OUR ECONOMIC SYSTEM WAS
PARALYZED MANY TURNED TO THE COMMUNIST PARTY OUT OF DESPERATION OR
HOPE.  IT PROPOSED A RADICAL SOLUTION TO THE GRAVE ECONOMIC CRISIS. 
LATER THE RISE OF FASCISM AS A MENANCE TO DEMOCRACY SPURRED OTHERS WHO
FEARED THIS FORM OF TYRANNY TO ALIGN WITH THE COMMUNIST PARTY.  (FN17)
AFTER 1935, THAT PARTY ADVOCATED A "POPULAR FRONT" OF "ALL DEMOCRATIC
PARTIES AGAINST FASCISM."  ITS PLATFORM AND SLOGANS STRESSED FULL
EMPLOYMENT, RACIAL EQUALITY AND VARIOUS OTHER POLITICAL AND ECONOMIC
CHANGES.  (FN18) 

DURING THE DEPRESSION SCHWARE WAS LED TO BELIEVE THAT DRASTIC CHANGES
NEEDED TO BE MADE IN THE EXISTING ECONOMIC SYSTEM.  THERE IS NOTHING IN
THE RECORD, HOWEVER, WHICH INDICATES THAT HE EVER ENGAGED IN ANY
ACTIONS TO OVERTHROW THE GOVERNMENT OF THE UNITED STATES OR OF ANY
STATE BY FORCE OR VIOLENCE, OR THAT HE EVEN ADVOCATED SUCH ACTIONS. 
ASSUMING THAT SOME MEMBERS OF THE COMMUNIST PARTY DURING THE PERIOD
FROM 1932 TO 1940 HAD ILLEGAL AIMS AND ENGAGED IN ILLEGAL ACTIVITIES,
IT CANNOT AUTOMATICALLY BE INFERRED THAT ALL MEMBERS SHARED THEIR EVIL
PURPOSES OR PARTICIPATED IN THEIR ILLEGAL CONDUCT.  AS THIS COURT
DECLARED IN WIEMAN V. UPDEGRAFF, 344 U.S. 183, 191:  "INDISCRIMINATE
CLASSIFICATION OF INNOCENT WITH KNOWING ACTIVITY MUST FALL AS AN
ASSERTION OF ARBITRARY POWER."  CF. JOINT ANTI-FASCIST REFUGEE
COMMITTEE V. MCGRATH, 341 U.S. 123, 136.  (FN19)  AND FINALLY, THERE IS
NO SUGGESTION THAT SCHWARE WAS AFFILIATED WITH THE COMMUNIST PARTY
AFTER 1940 - MORE THAN 15 YEARS AGO.  WE CONCLUDE THAT HIS PAST
MEMBERSHIP IN THE COMMUNIST PARTY DOES NOT JUSTIFY AN INFERENCE THAT HE
PRESENLTY HAS BAD MORAL CHARACTER. 

THE STATE CONTENDS THAT EVEN THOUGH THE USE OF ALIASES, THE ARRESTS,
AND THE MEMBERSHIP IN THE COMMUNIST PARTY WOULD NOT JUSTIFY EXCLUSION
OF PETITIONER FROM THE NEW MEXICO BAR IF EACH STOOD ALONE, WHEN ALL
THREE ARE COMBINED HIS EXCLUSION WAS NOT UNWARRANTED.  WE CANNOT ACCEPT
THIS CONTENTION.  IN THE LIGHT OF PETITIONER'S FORCEFUL SHOWING OF GOOD
MORAL CHARACTER, THE EVIDENCE UPON WHICH THE STATE RELIES - THE ARRESTS
FOR OFFENSES FOR WHICH PETITIONER WAS NEITHER TRIED NOR CONVICTED, THE
USE OF AN ASSUMED NAME MANY YEARS AGO, AND MEMBERSHIP IN THE COMMUNIST
PARTY DURING THE 1930'S - CANNOT BE SAID TO RAISE SUBSTANTIAL DOUBTS
ABOUT HIS PRESENT GOOD MORAL CHARACTER.  THERE IS NO EVIDENCE IN THE
RECORD WHICH RATIONALLY JUSTIFIES A FINDING THAT SCHWARE WAS MORALLY
UNFIT TO PRACTICE LAW.  (FN20) 

ON THE RECORD BEFORE US WE HOLD THAT THE STATE OF NEW MEXICO DEPRIVED
PETITIONER OF DUE PROCESS IN DENYING HIM THE OPPORTUNITY TO QUALIFY FOR
THE PRACTICE OF LAW.  THE JUDGMENT BELOW IS REVERSED AND THE CASE
REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  GENERALLY, SEE N.M. STAT. ANN., 1953, SEC. 18-1-8 AND THE RULES
GOVERNING ADMISSION TO THE BAR APPENDED THERETO. 

FN2  APPARENTLY THE BOARD HAD RECEIVED CONFIDENTIAL INFORMATION THAT
SCHWARE HAD ONCE BEEN A MEMBER OF THE COMMUNIST PARTY.  THE BOARD'S
APPLICATION FORM DID NOT REQUEST DISCLOSURE OF SUCH INFORMATION AND TO
SCHWARE DID NOT MENTION IT IN HIS APPLICATION.  AT THE HEARING HE
TESTIFIED AT LENGTH ABOUT HIS MEMBERSHIP.  THE BOARD REFUSED TO LET
PETITIONER SEE THE CONFIDENTIAL INFORMATION AGAINST HIM, ALTHOUGH IT
APPEARS THAT ITS INITIAL DENIAL OF HIS APPLICATION WAS PARTIALLY BASED
ON THIS INFORMATION.  WHILE THIS SECRET EVIDENCE WAS NOT MADE A PART OF
THE RECORD OF THE HEARING, COUNSEL FOR PETITIONER CONTENDS THAT THE
BOARD WAS INFLUENCED BY IT IN ADHERING TO ITS VIEW THAT PETITIONER WAS
NOT QUALIFIED.  IN THE NEW MEXICO SUPREME COURT THE MEMBERS OF THE
MAJORITY DID NOT LOOK AT THE CONFIDENTIAL INFORMATION.  AND WHILE THAT
COURT PASSED ON PETITIONER'S QUALIFICATIONS IN THE EXERCISE OF ITS
ORIGINAL JURISDICTION, THE MAJORITY PLACED CONSIDERABLE RELIANCE ON THE
BOARD'S RECOMMENDATIONS.  THEREFORE, PETITIONER CONTENDS, THE BOARD'S
USE OF CONFIDENTIAL INFORMATION DEPRIVED HIM OF PROCEDURAL DUE
PROCESS.  CF. GOLDSMITH V. UNITED STATES BD. OF TAX APPEALS, 270 U.S.
117; BRATTON V. CHANDLER, 260 U.S. 110; MINKOFF V. PAYNE, 93 U.S. APP.
D.C. 123, 210 F.2D 689, 691; IN RE CARTER, 89 U.S. APP. D.C. 310, 192
F.2D 15, CERT. DENIED, 342 U.S. 862.  WE FIND IT UNNECESSARY TO
CONSIDER THIS CONTENTION. 

FN3  THE DEAN WAS ON SABBATICAL LEAVE AND NOT AVAILABLE. 

FN4  AT TIMES DURING 1932 MORE THAN 12,060,000 OF THE NATION'S
51,000,000 WORKING PERSONS WERE UNEMPLOYED.  STATISTICAL ABSTRACT OF
THE UNITED STATES (1956) 197. 

FN5  WE NEED NOT ENTER INTO A DISCUSSION WHETHER THE PRACTICE OF LAW
IS A "RIGHT" OR "PRIVILEGE."  REGARDLESS OF HOW THE STATE'S GRANT OF
PERMISSION TO ENGAGE IN THIS OCCUPATION IS CHARACTERIZED, IT IS
SUFFICIENT TO SAY THAT A PERSON CANNOT BE PREVENTED FROM PRACTICING
EXCEPT FOR VALID REASONS.  CERTAINLY THE PRACTICE OF LAW IS NOT A
MATTER OF THE STATE'S GRACE.  EX PARTE GARLAND, 4 WALL.  333, 379. 

FN6  ARREST, BY ITSELF, IS NOT CONSIDERED COMPETENT EVIDENCE AT
EITHER A CRIMINAL OR CIVIL TRIAL TO PROVE THAT A PERSON DID CERTAIN
PROHIBITED ACTS.  CF. WIGMORE, EVIDENCE, SEC. 980A. 

FN7  PETITIONER TESTIFIED THAT DURING A TWO-MONTH PERIOD ABOUT 2,000
PERSONS WERE ARRESTED IN CONNECTION WITH THE STRIKE.  GENERALLY, FOR
CRITICISM OF THESE ARRESTS AND THE CONDUCT OF THE POLICE DURING THESE
AND RELATED STRIKES SEE S. REP. NO. 1150, 77TH CONG., 2D SESS.  35,
131, 133-141. 

FN8  "THE TERM 'CRIMINAL SYNDICALISM' AS USED IN THIS ACT IS HEREBY
DEFINED AS ANY DOCTRINE OR PRECEPT ADVOCATING, TEACHING OR AIDING AND
ABETTING THE COMMISSION OF CRIME, SABOTAGE (WHICH WORD IS HEREBY
DEFINED AS MEANING WILFUL AND MALICIOUS PHYSICAL DAMAGE OR INJURY TO
PHYSICAL PROPERTY), OR UNLAWFUL ACTS OF FORCE AND VIOLENCE OR UNLAWFUL
METHODS OF TERRORISM AS A MEANS OF ACCOMPLISHING A CHANGE IN INDUSTRIAL
OWNERSHIP OR CONTROL, OR EFFECTING ANY POLITICAL CHANGE."  CAL. STAT.
1919, C. 188, SEC. 1.  SEE ALSO DE JONGE V. OREGON, 299 U.S. 353, WHERE
APPLICATION OF A SIMILAR STATUTE WAS HELD UNCONSTITUTIONAL. 

FN9  40 STAT. 39, NOW 18 U.S.C. SEC. 959(A). 

FN10  SEE KIKER, J. (DISSENTING), 60 N.M. 304, 321, 291 P.2D 607,
618. 

FN11  FOR EXAMPLE, NEW MEXICO MAKES CONVICTION OF A FELONY OR A
MISDEMEANOR GROUNDS FOR DISBARMENT ONLY IF IT INVOLVES MORAL
TURPITUDE.  N.M. STAT. ANN., 1953, SEC. 18-1-17(1).  COMPARE IN RE
BURCH, 73 OHIO APP. 97, 54 N.E.2D 803, WHERE, IN A DISBARMENT
PROCEEDING, CONVICTION FOR VIOLATION OF A FEDERAL STATUTE FOR FAILING
TO REGISTER AS AN AGENT OF THE GERMAN GOVERNMENT IN 1941 WAS HELD NOT
TO EVIDENCE MORAL TURPITUDE. 

FN12  IN 1941 SCHWARE WAS ARRESTED BY POLICE IN TEXAS WHILE DRIVING A
FRIEND'S CAR TO THE WEST COAST.  APPARENTLY THE POLICE SUSPECTED THE
CAR WAS STOLEN.  AFTER A BRIEF DELAY THEY BECAME CONVINCED THAT THE CAR
WAS RIGHTFULLY IN PETITIONER'S POSSESSION AND HE WAS ALLOWED TO GO ON
HIS WAY.  THIS DETENTION OFFERS NO PROOF OF BAD MORAL CHARACTER AND THE
STATE DOES NOT RELY ON IT HERE. 

FN13  PETITIONER ARGUES THAT A STATE CONSTITUTIONALLY CANNOT CONSIDER
HIS MEMBERSHIP IN A LAWFUL POLITICAL PARTY IN DETERMINING WHETHER HE IS
QUALIFIED FOR ADMISSION TO THE BAR.  HE CONTENDS THAT A DENIAL BASED ON
SUCH MEMBERSHIP ABRIDGES THE RIGHT OF FREE POLITICAL ASSOCIATION
GUARANTEED BY THE FOURTEENTH AMENDMENT.  BECAUSE OF OUR DISPOSITION OF
THIS CASE, WE FIND IT UNNECESSARY TO PASS ON THIS CONTENTION. 

FN14  FOR EXAMPLE IN 1936 ITS PRESIDENTIAL NOMINEE WAS ON THE BALLOT
IN 35 STATES, INCLUDING NEW MEXICO.  STATISTICAL ABSTRACT OF THE UNITED
STATES (1937) 159. 

FN15  IN WEST VIRGINIA STATE BOARD V. BARNETTE, 319 U.S. 624, 642,
THIS COURT DECLARED: 

"IF THERE IS ANY FIXED STAR IN OUR CONSTITUTIONAL CONSTELLATION, IT
IS THAT NO OFFICIAL, HIGH OR PETTY, CAN PRESCRIBE WHAT SHALL BE
ORTHODOX IN POLITICS, NATIONALISM, RELIGION, OR OTHER MATTERS OF
OPINION OR FORCE CITIZENS TO CONFESS BY WORD OR ACT THEIR FAITH
THEREIN." 

FN16  ACCORDING TO FIGURES OF THE COMMUNIST PARTY IT HAD 14,000
MEMBERS IN 1932, 26,000 IN 1934, 41,000 IN 1936.  W.Z. FOSTER, FROM
BRYAN TO STALIN (1937), 303.  IT HAS BEEN ESTIMATED THAT MORE THAN
700,000 PERSONS IN THIS COUNTRY HAVE BEEN MEMBERS OF THE COMMUNIST
PARTY AT ONE TIME OR ANOTHER BETWEEN 1919 AND 1951.  ERNST AND LOTH,
REPORT ON THE AMERICAN COMMUNIST (1952), 14. 

FN17  FOR THE NUMEROUS AND VARIED REASONS WHY INDIVIDUALS HAVE JOINED
THE COMMUNIST PARTY, SEE TAYLOR, GRAND INQUEST (1955), 155-159; ERNST
AND LOTH, REPORT ON THE AMERICAN COMMUNIST (1952); ALMOND, THE APPEALS
OF COMMUNISM (1954); CROSSMAN, THE GOD THAT FAILED (1949); DEPARTMENT
OF DEFENSE, KNOW YOUR COMMUNIST ENEMY:  WHO ARE COMMUNISTS AND WHY?,
DOD PAM 4-6, DEC. 8, 1955.  MANY OF THESE REASONS ARE NOT INDICATIVE OF
BAD MORAL CHARACTER. 

FN18  SEE MOORE, THE COMMUNIST PARTY OF THE U.S.A.; AN ANALYSIS OF A
SOCIAL MOVEMENT, 39 AM. POL.  SCI.  REV. 31, 32-33. 

FN19  AND SEE SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 136, WHERE
THIS COURT STATED: 

"  ...  UNDER OUR TRADITIONS BELIEFS ARE PERSONAL AND NOT A MATTER OF
MERE ASSOCIATION, AND THAT MEN IN ADHERING TO A POLITICAL PARTY OR
OTHER ORGANIZATION NOTORIOUSLY DO NOT SUBSCRIBE UNQUALIFIEDLY TO ALL OF
ITS PLATFORMS OR ASSERTED PRINCIPLES."    FN20  IT MUST BE BORNE IN
MIND THAT IF PETITIONER OTHERWISE QUALIFIES FOR THE PRACTICE OF LAW AND
IS ADMITTED TO THE BAR, THE STATE HAS AMPLE MEANS TO DISCIPLINE HIM FOR
ANY FUTURE MISCONDUCT.  N.M. STAT. ANN., 1953, SECS. 18-1-15 TO 18-1
18. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK AND MR. JUSTICE
HARLAN JOIN, CONCURRING. 

CERTAINLY SINCE THE TIME OF EDWARD I, THROUGH ALL THE VICISSITUDES OF
SEVEN CENTURIES OF ANGLO-AMERICAN HISTORY, THE LEGAL PROFESSION HAS
PLAYED A ROLE ALL ITS OWN.  THE BAR HAS NOT ENJOYED PREROGATIVES; IT
HAS BEEN ENTRUSTED WITH ANXIOUS RESPONSIBILITIES.  ONE DOES NOT HAVE TO
INHALE THE SELF-ADULATORY BOMBAST OF AFTER-DINNER SPEECHES TO AFFIRM
THAT ALL THE INTERESTS OF MAN THAT ARE COMPRISED UNDER THE
CONSTITUTIONAL GUARANTEES GIVEN TO "LIFE, LIBERTY AND PROPERTY" ARE IN
THE PROFESSIONAL KEEPING OF LAWYERS.  IT IS A FAIR CHARACTERIZATION OF
THE LAWYER'S RESPONSIBILITY IN OUR SOCIETY THAT HE STANDS "AS A
SHIELD," TO QUOTE DEVLIN, J., IN DEFENSE OF RIGHT AND TO WARD OFF
WRONG.  FROM A PROFESSION CHARGED WITH SUCH RESPONSIBILITIES THERE MUST
BE EXACTED THOSE QUALITIES OF TRUTH-SPEAKING, OF A HIGH SENSE OF HONOR,
OF GRANITE DISCRETION, OF THE STRICTEST OBSERVANCE OF FIDUCIARY
RESPONSIBILITY, THAT HAVE, THROUGHOUT THE CENTURIES, BEEN COMPENDIOUSLY
DESCRIBED AS "MORAL CHARACTER." 

FROM THE THIRTEENTH CENTURY TO THIS DAY, IN ENGLAND THE PROFESSION
ITSELF HAS DETERMINED WHO SHOULD ENTER IT.  IN THE UNITED STATES THE
COURTS EXERCISE ULTIMATE CONTROL.  BUT WHILE WE HAVE NOTHING COMPARABLE
TO THE INNS OF COURT, WITH US TOO THE PROFESSION ITSELF, THROUGH
APPROPRIATE COMMITTEES, HAS LONG HAD A VITAL INTEREST, AS A SIFTING
AGENCY, IN DETERMINING THE FITNESS AND ABOVE ALL THE MORAL FITNESS OF
THOSE WHO ARE CERTIFIED TO BE ENTRUSTED WITH THE FATE OF CLIENTS.  WITH
US TOO THE REQUISITE "MORAL CHARACTER" HAS BEEN THE HISTORIC
UNQUESTIONED PREREQUISITE OF FITNESS.  ADMISSION TO PRACTICE IN A STATE
AND BEFORE ITS COURTS NECESSARILY BELONGS TO THAT STATE.  OF COURSE,
LEGISLATION LAYING DOWN GENERAL CONDITIONS OF AN ARBITRARY OR
DISCRIMINATORY CHARACTER MAY, LIKE OTHER LEGISLATION, FALL AFOUL OF THE
FOURTEENTH AMENDMENT.  SEE CUMMINGS V. MISSOURI, 4 WALL.  277.  A VERY
DIFFERENT QUESTION IS PRESENTED WHEN THIS COURT IS ASKED TO REVIEW THE
EXERCISE OF JUDGMENT IN REFUSING ADMISSION TO THE BAR IN AN INDIVIDUAL
CASE, SUCH AS WE HAVE HERE. 

IT IS BEYOND THIS COURT'S FUNCTION TO ACT AS OVERSEER OF A PARTICULAR
RESULT OF THE PROCEDURE ESTABLISHED BY A PARTICULAR STATE FOR ADMISSION
TO ITS BAR.  NO DOUBT SATISFACTION OF THE REQUIREMENT OF MORAL
CHARACTER INVOLVES AN EXERCISE OF DELICATE JUDGMENT ON THE PART OF
THOSE WHO REACH A CONCLUSION, HAVING HEARD AND SEEN THE APPLICANT FOR
ADMISSION, A JUDGMENT OF WHICH IT MAY BE SAID AS IT WAS OF "MANY HONEST
AND SENSIBLE JUDGMENTS" IN A DIFFERENT CONTEXT THAT IT EXPRESSES "AN
INTUITION OF EXPERIENCE WHICH OUTRUNS ANALYSIS AND SUMS UP MANY UNNAMED
AND TANGLED IMPRESSIONS; IMPRESSIONS WHICH MAY LIE BENEATH
CONSCIOUSNESS WITHOUT LOSING THEIR WORTH."  CHICAGO, B.&Q.R. CO. V.
BABCOCK, 204 U.S. 585, 598.  ESPECIALLY IN THIS REALM IT IS NOT OUR
BUSINESS TO SUBSTITUTE OUR JUDGMENT FOR THE STATE'S JUDGMENT - FOR IT
IS THE STATE IN ALL THE PANOPLY OF ITS POWERS THAT IS UNDER REVIEW WHEN
THE ACTION OF ITS SUPREME COURT IS UNDER REVIEW. 

NOR IS THE DIVISION OF POWER BETWEEN THIS COURT AND THAT OF THE
STATES IN SUCH MATTERS ALTERED BY THE FACT THAT THE JUDGMENT HERE
CHALLENGED INVOLVES THE APPLICATION OF A CONCEPTION LIKE THAT OF "MORAL
CHARACTER," WHICH HAS SHADOWY RATHER THAN PRECISE BOUNDS.  IT CANNOT BE
THAT THAT CONCEPTION - MORAL CHARACTER - HAS NOW BEEN FOUND TO BE SO
INDEFINITE, BECAUSE NECESSARILY IMPLICATING WHAT ARE CALLED SUBJECTIVE
FACTORS, THAT THE STATES MAY NO LONGER EXACT IT FROM THOSE WHO ARE TO
CARRY ON "THE PUBLIC PROFESSION OF THE LAW."  (SEE ELIHU ROOT, IN 2
A.B.A.J. 736.)  TO A WIDE AND DEEP EXTENT, THE LAW DEPENDS UPON THE
DISCIPLINED STANDARDS OF THE PROFESSION AND BELIEF IN THE INTEGRITY OF
THE COURTS.  WE CANNOT FAIL TO ACCORD SUCH CONFIDENCE TO THE STATE
PROCESS, AND WE MUST ATTRIBUTE TO ITS COURTS THE EXERCISE OF A FAIR AND
NOT A BIASED JUDGMENT IN PASSING UPON THE APPLICATIONS OF THOSE SEEKING
ENTRY INTO THE PROFESSION. 

BUT JUDICIAL ACTION, EVEN IN AN INDIVIDUAL CASE, MAY HAVE BEEN BASED
ON AVOWED CONSIDERATIONS THAT ARE INADMISSIBLE IN THAT THEY VIOLATE THE
REQUIREMENTS OF DUE PROCESS.  REFUSAL TO ALLOW A MAN TO QUALIFY HIMSELF
FOR THE PROFESSION ON A WHOLLY ARBITRARY STANDARD OR ON A CONSIDERATION
THAT OFFENDS THE DICTATES OF REASON OFFENDS THE DUE PROCESS CLAUSE. 
SUCH IS THE CASE HERE. 

LIVING UNDER HARD CIRCUMSTANCES, THE PETITIONER, WHILE STILL IN HIS
TEENS, ENCOUNTERED THE CONFUSIONS AND DISLOCATIONS OF THE GREAT
DEPRESSION.  BY ONE OF THOSE CHANCE OCCURRENCES THAT NOT INFREQUENTLY
DETERMINE THE ACTION OF YOUTH, PETITIONER JOINED THE YOUNG COMMUNIST
LEAGUE TOWARD THE END OF HIS HIGH-SCHOOL DAYS.  THAT ASSOCIATION LED TO
MEMBERSHIP IN THE COMMUNIST PARTY, WHICH HE RETAINED UNTIL THE HITLER
STALIN PACT BEGAN A DISAFFECTION THAT WAS COMPLETED BY HIS BREAK WITH
THE PARTY IN 1940.  AFTER 1940, THE RECORD OF HIS LIFE, INCLUDING THREE
YEARS OF HONORABLE SERVICE IN THE ARMY, ESTABLISHES THAT THESE EARLY
ASSOCIATIONS, AND THE OUTLOOK THEY REFLECTED, HAD BEEN ENTIRELY LEFT
BEHIND.*  AFTER HIS WAR SERVICE, THREE YEARS AS A SMALL BUSINESSMAN,
AND ONE YEAR AT WESTERN MICHIGAN COLLEGE, PETITIONER RESOLVED ON
BECOMING A LAWYER.  AND SO IN 1950, AT THE AGE OF 36, HE ENROLLED IN
THE UNIVERSITY OF NEW MEXICO LAW SCHOOL AND MADE FULL DISCLOSURE OF HIS
EARLY COMMUNIST CAREER TO ITS DEAN.  THESE ARE THE FACTS THAT, TAKEN
TOGETHER WITH THE USE OF ALIASES AND ARRESTS WITHOUT CONVICTION OR EVEN
PROSECUTION, BOTH IN HIS EARLY YEARS, LED THE SUPREME COURT OF NEW
MEXICO, IN AN ORIGINAL PROCEEDING BEFORE IT AFTER ADVERSE ACTION BY THE
BOARD OF BAR EXAMINERS, TO DENY PETITIONER'S APPLICATION TO TAKE THE
BAR EXAMINATION. 

*THE ONLY BIT OF EVIDENCE THAT MAY BE ADDUCED TO THE CONTRARY IS A
SINGLE PHRASE IN A LETTER TO HIS WIFE IN 1944.  TO GIVE IT AN
UNFAVORABLE AND DISQUALIFYING SIGNIFICANCE IN THE ENTIRE CONTEXT OF THE
LETTER IS TO DRAW SO STRAINED A MEANING AS TO BE INADMISSIBLY
UNREASONABLE. 

FOR ME, THE CONTROLLING ELEMENT IN DETERMINING WHETHER SUCH DENIAL
OFFENDED THE DUE PROCESS CLAUSE IS THE SIGNIFICANCE THAT THE NEW MEXICO
SUPREME COURT ACCORDED THE EARLY COMMUNIST AFFILIATIONS.  IN ITS
ORIGINAL OPINION AND IN ITS OPINION ON REHEARING, THE COURT THUS
REITERATED ITS LEGAL POSITION: 

"WE BELIEVE ONE WHO HAS KNOWINGLY GIVEN HIS LOYALTIES TO SUCH A
PROGRAM AND BELIEF FOR SIX TO SEVEN YEARS DURING A PERIOD OF
RESPONSIBLE ADULTHOOD IS A PERSON OF QUESTIONABLE CHARACTER."  60 N.M.
304, 319, 339, 291 P.2D 607, 617, 630. 

SINCE THE NEW MEXICO SUPREME COURT UNEQUIVOCALLY HELD THIS TO BE A
FACTOR WITHOUT WHICH, ON A FAIR READING OF ITS OPINION, IT WOULD NOT
HAVE DENIED THE APPLICATION, THE CONCLUSION THAT IT DREW FROM ALL THE
FACTORS IN NECESSARY COMBINATION MUST FALL IF IT DREW AN UNWARRANTED
LEGAL CONCLUSION FROM PETITIONER'S EARLY COMMUNIST AFFILIATION.  NOT
UNNATURALLY THE NEW MEXICO SUPREME COURT EVIDENTLY ASSUMED THAT USE OF
ALIASES IN THE PRE-1940 PERIOD, SEVERAL UNPROSECUTED ARRESTS, AND WHAT
IT DEEMED "HIS PRESENT ATTITUDE TOWARD THOSE MATTERS," 60 N.M., AT 339,
291 P.2D, AT 630 (AS DRAWN FROM THE PRINTED RECORD AND NOT ON THE BASIS
OF HAVING GIVEN THE PETITIONER A HEARING BEFORE THE COURT) PRECLUDED
DENIAL OF HIS APPLICATION ON THESE FACTORS ALONE. 

THIS BRINGS ME TO THE INFERENCE THAT THE COURT DREW FROM PETITIONER'S
EARLY, PRE-1940 AFFILIATIONS.  TO HOLD, AS THE COURT DID, THAT
COMMUNIST AFFILIATION FOR SIX TO SEVEN YEARS UP TO 1940, FIFTEEN YEARS
PRIOR TO THE COURT'S ASSESSMENT OF IT, IN AND OF ITSELF MADE THE
PETITIONER "A PERSON OF QUESTIONABLE CHARACTER" IS SO DOGMATIC AN
INFERENCE AS TO BE WHOLLY UNWARRANTED.  HISTORY OVERWHELMINGLY
ESTABLISHES THAT MANY YOUTHS LIKE THE PETITIONER WERE DRAWN BY THE
MIRAGE OF COMMUNISM DURING THE DEPRESSION ERA, ONLY TO HAVE THEIR EYES
LATER OPENED TO REALITY.  SUCH EXPERIENCES NO DOUBT MAY DISCLOSE A
WOOLLY MIND OR NAIVE NOTIONS REGARDING THE PROBLEMS OF SOCIETY.  BUT
FACTS OF HISTORY THAT WE WOULD BE ARBITRARY IN REJECTING BAR THE
PRESUMPTION, LET ALONE AN IRREBUTTABLE PRESUMPTION, THAT RESPONSE TO
FOOLISH, BASELESS HOPES REGARDING THE BETTERMENT OF SOCIETY MADE THOSE
WHO HAD ENTERTAINED THEM BUT WHO LATER UNDOUBTEDLY CAME TO THEIR SENSES
AND THEIR SENSE OF RESPONSIBILITY "QUESTIONABLE CHARACTERS."  SINCE THE
SUPREME COURT OF NEW MEXICO AS A MATTER OF LAW TOOK A CONTRARY VIEW OF
SUCH A SITUATION IN DENYING PETITIONER'S APPLICATION, IT DENIED HIM DUE
PROCESS OF LAW. 

I THEREFORE CONCUR IN THE JUDGMENT. 
..END :











KONIGSBERG V. STATE BAR OF CALIFORNIA 353 U.S. 252 


NO. 5.  ARGUED JANUARY 14, 1957 - DECIDED MAY 6, 1957 - REVERSED AND
REMANDED. 


IN 1954 THE COMMITTEE OF BAR EXAMINERS OF CALIFORNIA REFUSED TO
CERTIFY PETITIONER TO PRACTICE LAW IN THAT STATE, THOUGH HE HAD
SATISFACTORILY PASSED THE BAR EXAMINATION, ON THE GROUNDS THAT HE HAD
FAILED TO PROVE (1) THAT HE WAS OF GOOD MORAL CHARACTER, AND (2) THAT
HE DID NOT ADVOCATE FORCIBLE OVERTHROW OF THE GOVERNMENT.  HE SOUGHT
REVIEW BY THE STATE SUPREME COURT, CONTENDING THAT THE COMMITTEE'S
ACTION DEPRIVED HIM OF RIGHTS SECURED BY THE FOURTEENTH AMENDMENT.  THE
STATE SUPREME COURT DENIED HIS PETITION WITHOUT OPINION.  HELD: 

1.  THIS COURT HAS JURISDICTION TO REVIEW THE CASE, AND THE
CONSTITUTIONAL ISSUES ARE PROPERLY HERE.  PP. 254-258. 

2.  THE EVIDENCE IN THE RECORD DOES NOT RATIONALLY SUPPORT THE ONLY
TWO GROUNDS UPON WHICH THE COMMITTEE RELIED IN REJECTING PETITIONER'S
APPLICATION, AND THEREFORE THE STATE'S REFUSAL TO ADMIT HIM TO THE BAR
WAS A DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE LAWS, IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  PP. 258-274. 

(A)  THAT PETITIONER WAS A MEMBER OF THE COMMUNIST PARTY IN 1941, IF
TRUE, DOES NOT SUPPORT AN INFERENCE THAT HE DID NOT HAVE GOOD MORAL
CHARACTER, ABSENT ANY EVIDENCE THAT HE EVER ENGAGED IN OR ABETTED OR
SUPPORTED ANY UNLAWFUL OR IMMORAL ACTIVITIES.  PP. 266-268. 

(B)  AN INFERENCE OF BAD MORAL CHARACTER CANNOT RATIONALLY BE DRAWN
FROM EDITORIALS IN WHICH PETITIONER SEVERELY CRITICIZED, INTER ALIA,
THIS COUNTRY'S PARTICIPATION IN THE KOREAN WAR, THE ACTIONS AND
POLICIES OF THE LEADERS OF THE MAJOR POLITICAL PARTIES, THE INFLUENCE
OF "BIG BUSINESS" IN AMERICAN LIFE, RACIAL DISCRIMINATION, AND THIS
COURT'S DECISIONS IN DENNIS V. UNITED STATES, 341 U.S. 494, AND OTHER
CASES.  PP. 268-269. 

(C)  ON THE RECORD IN THIS CASE, INFERENCES OF BAD MORAL CHARACTER
FROM PETITIONER'S REFUSAL TO ANSWER QUESTIONS ABOUT HIS POLITICAL
AFFILIATIONS AND OPINIONS ARE UNWARRANTED.  PP. 269-271. 

(D)  THERE IS NO EVIDENCE IN THE RECORD WHICH RATIONALLY JUSTIFIES A
FINDING THAT PETITIONER FAILED TO SHOW THAT HE DID NOT ADVOCATE
FORCIBLE OVERTHROW OF THE GOVERNMENT.  PP. 271-274. 

KONIGSBERG V. STATE BAR OF CALIFORNIA ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, RAPHAEL KONIGSBERG, GRADUATED FROM THE LAW SCHOOL OF
THE UNIVERSITY OF SOUTHERN CALIFORNIA IN 1953 AND FOUR MONTHS LATER
SATISFACTORILY PASSED THE CALIFORNIA BAR EXAMINATION.  NEVERTHELESS,
THE STATE COMMITTEE OF BAR EXAMINERS, AFTER SEVERAL HEARINGS, REFUSED
TO CERTIFY HIM TO PRACTICE LAW ON THE GROUNDS HE HAD FAILED TO PROVE
(1) THAT HE WAS OF GOOD MORAL CHARACTER AND (2) THAT HE DID NOT
ADVOCATE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR
CALIFORNIA BY UNCONSTITUTIONAL MEANS.  (FN1)  AS PERMITTED BY STATE
LAW, KONIGSBERG ASKED THE CALIFORNIA SUPREME COURT TO REVIEW THE
COMMITTEE'S REFUSAL TO GIVE HIM ITS CERTIFICATION.  HE CONTENDED THAT
HE HAD SATISFACTORILY PROVED THAT HE MET ALL THE REQUIREMENTS FOR
ADMISSION TO THE BAR, AND THAT THE COMMITTEE'S ACTION DEPRIVED HIM OF
RIGHTS SECURED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.  THE STATE SUPREME COURT, WITHOUT OPINION, AND WITH THREE
OF ITS SEVEN JUSTICES DISSENTING, DENIED HIS PETITION FOR REVIEW.  WE
GRANTED CERTIORARI BECAUSE THE CONSTITUTIONAL QUESTIONS PRESENTED WERE
SUBSTANTIAL.  351 U.S. 936. 

                                        I. 

BEFORE REACHING THE MERITS, WE MUST FIRST CONSIDER THE STATE'S
CONTENTION THAT THIS COURT DOES NOT HAVE JURISDICTION TO REVIEW THE
CASE.  THE STATE ARGUES (1) THAT PETITIONER DID NOT PRESENT HIS
CONSTITUTIONAL CLAIMS TO THE CALIFORNIA SUPREME COURT IN THE MANNER
PRESCRIBED BY THAT COURT'S RULES, AND (2) THAT THE STATE COURT'S
DECISION NOT TO GRANT HIM RELIEF CAN BE ATTRIBUTED TO HIS FAILURE TO
CONFORM TO ITS PROCEDURAL RULES RATHER THAN TO A REJECTION OF HIS
CONSTITUTIONAL CLAIMS. 

IN CONSIDERING ACTIONS OF THE COMMITTEE OF BAR EXAMINERS THE
CALIFORNIA SUPREME COURT EXERCISES ORIGINAL JURISDICTION AND IS NOT
RESTRICTED TO THE LIMITED REVIEW MADE BY AN APPELLATE COURT.  FOR
EXAMPLE, THAT COURT DECLARED IN IN RE LACEY, 11 CAL. 2D 699, AT 701, 81
P.2D 935, AT 936: 

"THAT THIS COURT HAS THE INHERENT POWER AND AUTHORITY TO ADMIT AN
APPLICANT TO PRACTICE LAW IN THIS STATE OR TO REINSTATE AN APPLICANT
PREVIOUSLY DISBARRED DESPITE AN UNFAVORABLE REPORT UPON SUCH
APPLICATION BY THE BOARD OF BAR GOVERNORS OF THE STATE BAR, WE THINK IS
NOW WELL SETTLED IN THIS STATE  ...  .  THE RECOMMENDATION OF THE BOARD
OF BAR GOVERNORS IS ADVISORY ONLY  ...  .  THE FINAL DETERMINATION IN
ALL THESE MATTERS RESTS WITH THIS COURT, AND ITS POWERS IN THAT REGARD
ARE PLENARY AND ITS JUDGMENT CONCLUSIVE."  (FN2) 

THE CALIFORNIA SUPREME COURT HAS A SPECIAL RULE, RULE 59(B), WHICH
GOVERNS REVIEW OF ACTIONS OF THE BAR EXAMINERS.  (FN3)  RULE 59(B)
REQUIRES THAT A PETITION FOR REVIEW "SHALL SPECIFY THE GROUNDS RELIED
ON AND SHALL BE ACCOMPANIED BY PETITIONER'S BRIEF."  KONIGSBERG
COMPLIED WITH THIS RULE.  IN HIS PETITION FOR REVIEW HE SPECIFICALLY
CHARGED THAT THE FINDINGS OF THE COMMITTEE WERE NOT SUPPORTED BY ANY
LAWFUL EVIDENCE.  (FN4)  THE PETITION THEN WENT ON TO ASSERT THAT THE
COMMITTEE'S ACTION, WHICH WAS BASED ON FINDINGS THAT THE PETITION HAS
PREVIOUSLY ALLEGED WERE NOT SUPPORTED BY EVIDENCE, WAS AN ATTEMPT BY
THE STATE OF CALIFORNIA IN VIOLATION OF THE FOURTEENTH AMENDMENT TO
DEPRIVE HIM "OF LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW" AND TO
DENY HIM "THE EQUAL PROTECTION OF THE LAWS." 

THROUGHOUT THE HEARINGS BEFORE THE BAR EXAMINERS KONIGSBERG
REPEATEDLY OBJECTED TO QUESTIONS ABOUT HIS BELIEFS AND ASSOCIATIONS
ASSERTING THAT SUCH INQUIRIES INFRINGED RIGHTS GUARANTEED HIM BY THE
FIRST AND FOURTEENTH AMENDMENTS.  HE URGED THAT THE COMMITTEE WOULD
ABRIDGE FREEDOM OF SPEECH, PRESS AND ASSEMBLY, VIOLATE DUE PROCESS, AND
DENY EQUAL PROTECTION OF THE LAWS IF IT DENIED HIS APPLICATION BECAUSE
OF HIS POLITICAL OPINIONS, WRITINGS, AND AFFILIATIONS.  HE ASSERTED
THAT HE HAD AFFIRMATIVELY PROVED HIS GOOD MORAL CHARACTER AND THAT
THERE WAS NO LEGAL BASIS FOR FINDING THAT HE WAS MORALLY UNFIT TO
PRACTICE LAW.  HE INSISTED THAT IN DETERMINING WHETHER HE WAS QUALIFIED
THE COMMITTEE HAD TO COMPLY WITH DUE PROCESS OF LAW AND CITED AS
SUPPORTING HIS POSITION WEIMAN V. UPDEGRAFF, 344 U.S. 183, AND JOINT
ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 123, WHERE THIS COURT
CONDEMNED ARBITRARY FINDINGS AS OFFENSIVE TO DUE PROCESS.  (FN5)  SINCE
KONIGSBERG CHALLENGED THE SUFFICIENCY OF THE EVIDENCE IN HIS PETITION
FOR REVIEW, IT SEEMS CLEAR THAT THE STATE SUPREME COURT EXAMINED THE
ENTIRE RECORD OF THE HEARINGS BEFORE THE BAR EXAMINERS (FN6) AND MUST
HAVE BEEN AWARE OF THE CONSTITUTIONAL ARGUMENTS MADE BY KONIGSBERG
DURING THE HEARINGS AND THE AUTHORITIES RELIED ON TO SUPPORT THESE
ARGUMENTS. 

THE STATE CONTENDS, HOWEVER, THAT IT WAS NOT ENOUGH FOR KONIGSBERG TO
RAISE HIS CONSTITUTIONAL OBJECTIONS IN HIS PETITION, IN THE MANNER
PRESCRIBED BY RULE 59(B), AND AT THE HEARINGS.  IT CLAIMS THAT UNDER
CALIFORNIA PRACTICE THE STATE SUPREME COURT WILL NOT CONSIDER A
CONTENTION UNLESS IT IS SUPPORTED BY AN ARGUMENT AND CITATION OF
AUTHORITIES IN A BRIEF SUBMITTED BY THE PERSON SEEKING REVIEW.  BECAUSE
KONIGSBERG'S BRIEF DID NOT REPEAT, PRECISELY AND IN DETAIL, THE
CONSTITUTIONAL OBJECTIONS SET FORTH IN HIS PETITION, (FN7) THE ARGUMENT
CONTINUES, THIS COURT IS COMPELLED TO HOLD THAT THE STATE SUPREME COURT
COULD HAVE REFUSED RELIEF TO PETITIONER ON A NARROW PROCEDURAL GROUND. 
BUT THE CALIFORNIA CASES CITED BY THE STATE DO NOT REQUIRE SUCH A
CONCLUSION.  IT IS TRUE THAT THE STATE SUPREME COURT HAS INSISTED THAT
ON APPEAL IN ORDINARY CIVIL CASES ALLEGED ERRORS SHOULD BE POINTED OUT
CLEARLY AND CONCISELY, WITH REASONS WHY THEY ARE ERRONEOUS, AND WITH
REFERENCE TO SUPPORTING AUTHORITIES.  (FN8)  HOWEVER THIS CASE WAS NOT
REVIEWED UNDER THE RULES OF APPEAL WHICH APPLY TO THE ORDINARY CIVIL
CASE BUT RATHER UNDER A SPECIAL RULE APPLYING TO ORIGINAL PROCEEDINGS. 
WE ARE POINTED TO NOTHING WHICH INDICATES THAT THE STATE SUPREME COURT
HAS ADOPTED ANY RULE IN THIS TYPE OF CASE WHICH REQUIRES THAT
CONTENTIONS RAISED IN THE PETITION FOR REVIEW MUST ALSO BE SET OUT IN
THE BRIEF.  THE ONE CASE CITED, JOHNSON V. STATE BAR OF CALIFORNIA, 4
CAL. 2D 744, 52 P.2D 928, INDICATES THE CONTRARY.  IN CHALLENGING THE
RECOMMENDATION OF THE BOARD OF GOVERNORS OF THE STATE BAR THAT HE BE
SUSPENDED FROM THE PRACTICE OF LAW, JOHNSON ALLEGED, APPARENTLY IN AN
OFFHAND WAY, THAT THE ENTIRE STATE BAR ACT WAS "UNCONSTITUTIONAL."  HE
MADE NO ARGUMENT AND CITED NO AUTHORITY TO SUPPORT THIS BARE, SWEEPING
ASSERTION.  WHILE THE COURT SAID THAT THIS WAS AN INSUFFICIENT
PRESENTATION OF THE ISSUE IT NEVERTHELESS WENT AHEAD TO CONSIDER AND
REJECT JOHNSON'S ARGUMENT AND TO HOLD THE ACT CONSTITUTIONAL. 

COUNSEL FOR CALIFORNIA CONCEDES THAT THE STATE COURTS IN CRIMINAL
CASES OFTEN PASS ON ISSUES INEPTLY ARGUED IN A DEFENDANT'S BRIEF OR
SOMETIMES NOT RAISED THERE AT ALL.  (FN9)  AS COUNSEL STATES, THE
REASONS FOR RELAXING THIS STANDARD IN CRIMINAL CASES ARE OBVIOUS - SUCH
CASES MAY INVOLVE FORFEITURE OF THE ACCUSED'S PROPERTY, LIBERTY, OR
LIFE.  WHILE THIS IS NOT A CRIMINAL CASE, ITS CONSEQUENCES FOR
KONIGSBERG TAKE IT OUT OF THE ORDINARY RUN OF CIVIL CASES.  THE
COMMITTEE'S ACTION PREVENTS HIM FROM EARNING A LIVING BY PRACTICING
LAW.  THIS DEPRIVATION HAS GRAVE CONSEQUENCES FOR A MAN WHO HAS SPENT
YEARS OF STUDY AND A GREAT DEAL OF MONEY IN PREPARING TO BE A LAWYER. 

IN VIEW OF THE GROUNDS RELIED ON IN KONIGSBERG'S PETITION FOR REVIEW,
HIS REPEATED ASSERTIONS THROUGHOUT THE HEARINGS OF VARIOUS FEDERAL
CONSTITUTIONAL RIGHTS, AND THE PRACTICES OF THE CALIFORNIA SUPREME
COURT, WE CANNOT CONCLUDE THAT THAT COURT, WITH THREE OF ITS SEVEN
JUSTICES DISSENTING, INTENDED TO UPHOLD PETITIONER'S EXCLUSION FROM THE
PRACTICE OF LAW BECAUSE HIS LAWYER FAILED TO ELABORATE IN HIS BRIEF THE
CONSTITUTIONAL CLAIMS SET FORTH IN HIS PETITION FOR REVIEW AND IN THE
RECORD OF THE HEARINGS.  OUR CONCLUSION IS THAT THE CONSTITUTIONAL
ISSUES ARE BEFORE US AND WE MUST CONSIDER THEM.  (FN10)

                  II. 

WE NOW TURN TO THE MERITS.  IN PASSING ON KONIGSBERG'S APPLICATION,
THE COMMITTEE OF BAR EXAMINERS CONDUCTED A SERIES OF HEARINGS.  AT
THESE HEARINGS KONIGSBERG WAS QUESTIONED AT GREAT LENGTH ABOUT HIS
POLITICAL AFFILIATIONS AND BELIEFS.  PRACTICALLY ALL OF THESE QUESTIONS
WERE DIRECTED AT FINDING OUT WHETHER HE WAS OR EVER HAD BEEN A MEMBER
OF THE COMMUNIST PARTY.  KONIGSBERG DECLINED TO RESPOND TO THIS LINE OF
QUESTIONING, INSISTING THAT IT WAS AN INTRUSION INTO AREAS PROTECTED BY
THE FEDERAL CONSTITUTION.  HE ALSO OBJECTED ON THE GROUND THAT
CALIFORNIA LAW DID NOT REQUIRE HIM TO DIVULGE HIS POLITICAL
ASSOCIATIONS OR OPINIONS IN ORDER TO QUALIFY FOR THE BAR AND THAT
QUESTIONS ABOUT THESE MATTERS WERE NOT RELEVANT.  (FN11) 

THE COMMITTEE OF BAR EXAMINERS REJECTED KONIGSBERG'S APPLICATION ON
THE GROUND THAT THE EVIDENCE IN THE RECORD RAISED SUBSTANTIAL DOUBTS
ABOUT HIS CHARACTER AND HIS LOYALTY WHICH HE HAD FAILED TO DISPEL.  AT
THE CONCLUSION OF THE HEARINGS, THE COMMITTEE SENT A FORMAL WRITTEN
NOTICE - WHICH LATER SERVED AS THE BASIS FOR HIS PETITION TO THE
CALIFORNIA SUPREME COURT - STATING THAT HIS APPLICATION WAS DENIED
BECAUSE: 

1.  HE FAILED TO DEMONSTRATE THAT HE WAS A PERSON OF GOOD MORAL
CHARACTER AND: 

2.  HE FAILED TO SHOW THAT HE DID NOT ADVOCATE THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES OR OF THE STATE BY FORCE, VIOLENCE OR
OTHER UNCONSTITUTIONAL MEANS. 

HE WAS NOT DENIED ADMISSION TO THE CALIFORNIA BAR SIMPLY BECAUSE HE
REFUSED TO ANSWER QUESTIONS.  (FN12) 

IN KONIGSBERG'S PETITION FOR REVIEW TO THE STATE SUPREME COURT THERE
IS NO SUGGESTION THAT THE COMMITTEE HAD EXCLUDED HIM MERELY FOR FAILING
TO RESPOND TO ITS INQUIRIES.  NOR DID THE COMMITTEE IN ITS ANSWER
INDICATE THAT THIS WAS THE BASIS FOR ITS ACTION.  AFTER RESPONDING TO
KONIGSBERG'S ALLEGATIONS, THE BAR COMMITTEE SET FORTH A DEFENSE OF ITS
ACTION WHICH IN SUBSTANCE REPEATED THE REASONS IT HAD GIVEN KONIGSBERG
IN THE FORMAL NOTICE OF DENIAL FOR REJECTING HIS APPLICATION.  (FN13) 

THERE IS NOTHING IN THE CALIFORNIA STATUTES, THE CALIFORNIA
DECISIONS, OR EVEN IN THE RULES OF THE BAR COMMITTEE, WHICH HAS BEEN
CALLED TO OUR ATTENTION, THAT SUGGESTS THAT FAILURE TO ANSWER A BAR
EXAMINER'S INQUIRY IS, IPSO FACTO, A BASIS FOR EXCLUDING AN APPLICANT
FROM THE BAR, IRRESPECTIVE OF HOW OVERWHELMING IS HIS SHOWING OF GOOD
CHARACTER OR LOYALTY OR HOW FLIMSY ARE THE SUSPICIONS OF THE BAR
EXAMINERS.  SERIOUS QUESTIONS OF ELEMENTAL FAIRNESS WOULD BE RAISED IF
THE COMMITTEE HAD EXCLUDED KONIGSBERG SIMPLY BECAUSE HE FAILED TO
ANSWER QUESTIONS WITHOUT FIRST EXPLICITLY WARNING HIM THAT HE COULD BE
BARRED FOR THIS REASON ALONE, EVEN THOUGH HIS MORAL CHARACTER AND
LOYALTY WERE UNIMPEACHABLE, AND THEN GIVING HIM A CHANCE TO COMPLY. 
(FN14)  IN OUR OPINION, THERE IS NOTHING IN THE RECORD WHICH INDICATES
THAT THE COMMITTEE, IN A MATTER OF SUCH GRAVE IMPORTANCE TO KONIGSBERG,
APPLIED A BRAND NEW EXCLUSIONARY RULE TO HIS APPLICATION - ALL WITHOUT
TELLING HIM THAT IT WAS DOING SO.  (FN15) 

IF IT WERE POSSIBLE FOR US TO SAY THAT THE BOARD HAD BARRED
KONIGSBERG SOLELY BECAUSE OF HIS REFUSAL TO RESPOND TO ITS INQUIRIES
INTO HIS POLITICAL ASSOCIATIONS AND HIS OPINIONS ABOUT MATTERS OF
PUBLIC INTEREST, THEN WE WOULD BE COMPELLED TO DECIDE FAR-REACHING AND
COMPLEX QUESTIONS RELATING TO FREEDOM OF SPEECH, PRESS AND ASSEMBLY. 
THERE IS NO JUSTIFICATION FOR OUR STRAINING TO REACH THESE DIFFICULT
PROBLEMS WHEN THE BOARD ITSELF HAS NOT SEEN FIT, AT ANY TIME, TO BASE
ITS EXCLUSION OF KONIGSBERG ON HIS FAILURE TO ANSWER.  IF AND WHEN A
STATE MAKES FAILURE TO ANSWER A QUESTION AN INDEPENDENT GROUND FOR
EXCLUSION FROM THE BAR, THEN THIS COURT, AS THE CASES ARISE, WILL HAVE
TO DETERMINE WHETHER THE EXCLUSION IS CONSTITUTIONALLY PERMISSIBLE.  WE
DO NOT MEAN TO INTIMATE ANY VIEW ON THAT PROBLEM HERE NOR DO WE MEAN TO
APPROVE OR DISAPPROVE KONIGSBERG'S REFUSAL TO ANSWER THE PARTICULAR
QUESTIONS ASKED HIM. 

WE NOW PASS TO THE ISSUE WHICH WE BELIEVE IS PRESENTED IN THIS CASE:
DOES THE EVIDENCE IN THE RECORD SUPPORT ANY REASONABLE DOUBTS ABOUT
KONIGSBERG'S GOOD CHARACTER OR HIS LOYALTY TO THE GOVERNMENTS OF STATE
AND NATION?  IN CONSIDERING THIS ISSUE, WE MUST, OF COURSE, TAKE INTO
ACCOUNT THE COMMITTEE'S CONTENTION THAT KONIGSBERG'S FAILURE TO RESPOND
TO QUESTIONS WAS EVIDENCE FROM WHICH SOME INFERENCE OF DOUBTFUL
CHARACTER AND LOYALTY CAN BE DRAWN. 

KONIGSBERG CLAIMS THAT HE ESTABLISHED HIS GOOD MORAL CHARACTER BY
OVERWHELMING EVIDENCE AND CARRIED THE BURDEN OF PROVING THAT HE DOES
NOT ADVOCATE OVERTHROW OF THE GOVERNMENT.  HE CONTENDS HERE, AS HE DID
IN THE CALIFORNIA COURT, THAT THERE IS NO EVIDENCE IN THE RECORD WHICH
RATIONALLY SUPPORTS A FINDING OF DOUBT ABOUT HIS CHARACTER OR LOYALTY. 
IF THIS CONTENTION IS CORRECT, HE HAS BEEN DENIED THE RIGHT TO PRACTICE
LAW ALTHOUGH THERE WAS NO BASIS FOR THE FINDING THAT HE FAILED TO MEET
THE QUALIFICATIONS WHICH THE STATE DEMANDS OF A PERSON SEEKING TO
BECOME A LAWYER.  IF THIS IS TRUE, CALIFORNIA'S REFUSAL TO ADMIT HIM IS
A DENIAL OF DUE PROCESS AND OF EQUAL PROTECTION OF THE LAWS BECAUSE
BOTH ARBITRARY AND DISCRIMINATORY.  (FN16) AFTER EXAMINATION OF THE
RECORD, (FN17) WE ARE COMPELLED TO AGREE WITH KONIGSBERG THAT THE
EVIDENCE DOES NOT RATIONALLY SUPPORT THE ONLY TWO GROUNDS UPON WHICH
THE COMMITTEE RELIED IN REJECTING HIS APPLICATION FOR ADMISSION TO THE
CALIFORNIA BAR.    A. GOOD MORAL CHARACTER.  - THE TERM "GOOD MORAL
CHARACTER" HAS LONG BEEN USED AS A QUALIFICATION FOR MEMBERSHIP IN THE
BAR AND HAS SERVED A USEFUL PURPOSE IN THIS RESPECT.  HOWEVER THE TERM,
BY ITSELF, IS UNUSUALLY AMBIGUOUS.  IT CAN BE DEFINED IN AN ALMOST
UNLIMITED NUMBER OF WAYS FOR ANY DEFINITION WILL NECESSARILY REFLECT
THE ATTITUDES, EXPERIENCES, AND PREJUDICES OF THE DEFINER.  (FN18)
SUCH A VAGUE QUALIFICATION, WHICH IS EASILY ADAPTED TO FIT PERSONAL
VIEWS AND PREDILECTIONS, CAN BE A DANGEROUS INSTRUMENT FOR ARBITRARY
AND DISCRIMINATORY DENIAL OF THE RIGHT TO PRACTICE LAW. 

WHILE WE DO NOT HAVE THE BENEFIT OF A DEFINITION OF "GOOD MORAL
CHARACTER" BY THE CALIFORNIA SUPREME COURT IN THIS CASE, COUNSEL FOR
THE STATE TELLS US THAT THE DEFINITION OF THAT TERM ADOPTED IN
CALIFORNIA "STRESSES ELEMENTS OF HONESTY, FAIRNESS AND RESPECT FOR THE
RIGHTS OF OTHERS AND FOR THE LAWS OF THE STATE AND NATION."  THE
DECISIONS OF CALIFORNIA COURTS CITED HERE DO NOT SUPPORT SO BROAD A
DEFINITION AS CLAIMED BY COUNSEL.  THESE CASES INSTEAD APPEAR TO DEFINE
"GOOD MORAL CHARACTER" IN TERMS OF AN ABSENCE OF PROVEN CONDUCT OR ACTS
WHICH HAVE BEEN HISTORICALLY CONSIDERED AS MANIFESTATIONS OF "MORAL
TURPITUDE."  TO ILLUSTRATE, CALIFORNIA HAS HELD THAT AN APPLICANT DID
NOT HAVE GOOD CHARACTER WHO HAD BEEN CONVICTED OF FORGERY AND HAD
PRACTICED LAW WITHOUT A LICENSE, (FN19) OR WHO HAD OBTAINED MONEY BY
FALSE REPRESENTATIONS AND HAD COMMITTED FRAUD UPON A COURT, (FN20) OR
WHO HAD SUBMITTED FALSE AFFIDAVITS TO THE COMMITTEE ALONG WITH HIS
APPLICATION FOR ADMISSION.  (FN21)  IT SHOULD BE EMPHASIZED THAT
NEITHER THE DEFINITION PROPOSED BY COUNSEL NOR THOSE APPEARING IN THE
CALIFORNIA CASES EQUATES UNORTHODOX POLITICAL BELIEFS OR MEMBERSHIP IN
LAWFUL POLITICAL PARTIES WITH BAD MORAL CHARACTER.  ASSUMING FOR
PURPOSES OF THIS CASE THAT COUNSEL'S BROAD DEFINITION OF "GOOD MORAL
CHARACTER" IS THE ONE ADOPTED IN CALIFORNIA, THE QUESTION IS WHETHER ON
THE WHOLE RECORD A REASONABLE MAN COULD FAIRLY FIND THAT THERE WERE
SUBSTANTIAL DOUBTS ABOUT KONIGSBERG'S "HONESTY, FAIRNESS AND RESPECT
FOR THE RIGHTS OF OTHERS AND FOR THE LAWS OF THE STATE AND NATION." 

A PERSON CALLED ON TO PROVE HIS CHARACTER IS COMPELLED TO TURN TO THE
PEOPLE WHO KNOW HIM.  HERE, FORTY-TWO INDIVIDUALS WHO HAD KNOWN
KONIGSBERG AT DIFFERENT TIMES DURING THE PAST TWENTY YEARS ATTESTED TO
HIS EXCELLENT CHARACTER.  (FN22)  THESE TESTIMONIALS CAME FROM PERSONS
IN EVERY WALK OF LIFE.  INCLUDED AMONG THEM WERE A CATHOLIC PRIEST, A
JEWISH RABBI, LAWYERS, DOCTORS, PROFESSORS, BUSINESSMEN AND SOCIAL
WORKERS.  THE FOLLOWING ARE TYPICAL OF THE STATEMENTS MADE ABOUT
KONIGSBERG: 

AN INSTRUCTOR AT THE UNIVERSITY OF SOUTHERN CALIFORNIA LAW SCHOOL: 

"HE SEEMS TO HOLD THE CONSTITUTION IN HIGH ESTEEM AND IS A VIGOROUS
SUPPORTER OF CIVIL RIGHTS  ... .  HE INDICATED TO ME AN OPEN-MINDEDNESS
SEEMINGLY INCONSISTENT WITH ANY CALCULATED DISREGARD OF HIS DUTY AS A
LOYAL AND CONSCIENTIOUS CITIZEN." 

A RABBI: 

"I UNRESERVEDLY RECOMMEND MR. KONIGSBERG AS A PERSON WHO IS MORALLY
AND ETHICALLY QUALIFIED TO SERVE AS A MEMBER OF THE BAR." 

A LAWYER: 

"I RECOMMEND MR. KONIGSBERG UNRESERVEDLY AS A PERSON OF HIGH MORAL
PRINCIPLE AND CHARACTER  ...  .  HE IS A MUCH MORE PROFOUND PERSON THAN
THE AVERAGE BAR APPLICANT AND EXHIBITS A SOCIAL CONSCIOUSNESS WHICH, IN
MY OPINION, IS UNFORTUNATELY TOO RARE AMONG APPLICANTS." 

A CATHOLIC MONSIGNOR: 

"I DO NOT HESITATE TO RECOMMEND HIM TO YOU.  I AM SATISFIED THAT HE
WILL MEASURE UP TO THE HIGH REQUIREMENTS ESTABLISHED FOR MEMBERS OF THE
LEGAL PROFESSION." 

OTHER WITNESSES TESTIFIED TO KONIGSBERG'S BELIEF IN DEMOCRACY AND
DEVOTION TO DEMOCRATIC IDEAS, HIS PRINCIPLED CONVICTIONS, HIS HONESTY
AND INTEGRITY, HIS CONSCIENTIOUSNESS AND COMPETENCE IN HIS WORK, HIS
CONCERN AND AFFECTION FOR HIS WIFE AND CHILDREN AND HIS LOYALTY TO THE
COUNTRY.  THESE, OF COURSE, HAVE TRADITIONALLY BEEN THE KIND OF
QUALITIES THAT MAKE UP GOOD MORAL CHARACTER.  THE SIGNIFICANCE OF THE
STATEMENTS MADE BY THESE WITNESSES ABOUT KONIGSBERG IS ENHANCED BY THE
FACT THAT THEY HAD KNOWN HIM AS AN ADULT WHILE HE WAS EMPLOYED IN
RESPONSIBLE PROFESSIONAL POSITIONS.  EVEN MORE SIGNIFICANT, NOT A
SINGLE PERSON HAS TESTIFIED THAT KONIGSBERG'S MORAL CHARACTER WAS BAD
OR QUESTIONABLE IN ANY WAY. 

KONIGSBERG'S BACKGROUND, WHICH WAS ALSO BEFORE THE COMMITTEE,
FURNISHED STRONG PROOF THAT HIS LIFE HAD ALWAYS BEEN HONEST AND
UPRIGHT.  BORN IN AUSTRIA IN 1911, HE WAS BROUGHT TO THIS COUNTRY WHEN
EIGHT YEARS OLD.  AFTER GRADUATING FROM OHIO STATE UNIVERSITY IN 1931,
HE TAUGHT AMERICAN HISTORY AND LITERATURE FOR A TIME IN A CLEVELAND
HIGH SCHOOL.  IN 1934 HE WAS GIVEN A SCHOLARSHIP TO OHIO STATE
UNIVERSITY AND THERE RECEIVED HIS MASTER OF ARTS DEGREE IN SOCIAL
ADMINISTRATION.  HE WAS THEN EMPLOYED BY THE DISTRICT OF COLUMBIA AS A
SUPERVISOR IN ITS DEPARTMENT OF HEALTH.  IN 1936 HE WENT TO CALIFORNIA
WHERE HE WORKED AS AN EXECUTIVE FOR SEVERAL SOCIAL AGENCIES AND AT ONE
TIME SERVED AS DISTRICT SUPERVISOR FOR THE CALIFORNIA STATE RELIEF
ADMINISTRATION.  WITH OUR ENTRY INTO THE SECOND WORLD WAR, HE
VOLUNTEERED FOR THE ARMY AND WAS COMMISSIONED A SECOND LIEUTENANT.  HE
WAS SELECTED FOR TRAINING AS AN ORIENTATION OFFICER IN THE ARMY'S
INFORMATION AND EDUCATION PROGRAM AND IN THAT CAPACITY SERVED IN NORTH
AFRICA, ITALY, FRANCE, AND GERMANY.  HE WAS PROMOTED TO CAPTAIN AND
WHILE IN GERMANY WAS MADE ORIENTATION OFFICER FOR THE ENTIRE SEVENTH
ARMY.  AS AN ORIENTATION OFFICER ONE OF HIS PRINCIPAL FUNCTIONS WAS TO
EXPLAIN TO SOLDIERS THE ADVANTAGES OF DEMOCRACY AS COMPARED WITH
TOTALITARIANISM.  AFTER HIS HONORABLE DISCHARGE IN 1946 HE RESUMED HIS
CAREER IN SOCIAL WORK.  IN 1950, AT THE AGE OF THIRTY-NINE, KONIGSBERG
ENTERED THE LAW SCHOOL OF THE UNIVERSITY OF SOUTHERN CALIFORNIA AND WAS
GRADUATED IN 1953.  THERE IS NO CRITICISM IN THE RECORD OF HIS
PROFESSIONAL WORK, HIS MILITARY SERVICE, OR HIS PERFORMANCE AT THE LAW
SCHOOL. 

DESPITE KONIGSBERG'S FORCEFUL SHOWING OF GOOD MORAL CHARACTER AND THE
FACT THAT THERE IS NO EVIDENCE THAT HE HAS EVER BEEN CONVICTED OF ANY
CRIME OR HAS EVER DONE ANYTHING BASE OR DEPRAVED, THE STATE
NEVERTHELESS ARGUES THAT SUBSTANTIAL DOUBTS WERE RAISED ABOUT HIS
CHARACTER BY:  (1) THE TESTIMONY OF AN EX-COMMUNIST THAT KONIGSBERG HAD
ATTENDED MEETINGS OF A COMMUNIST PARTY UNIT IN 1941; (2) HIS CRITICISM
OF CERTAIN PUBLIC OFFICIALS AND THEIR POLICIES; AND (3) HIS REFUSAL TO
ANSWER CERTAIN QUESTIONS ABOUT HIS POLITICAL ASSOCIATIONS AND BELIEFS. 
WHEN THESE ITEMS ARE ANALYZED, WE BELIEVE THAT IT CANNOT RATIONALLY BE
SAID THAT THEY SUPPORT SUBSTANTIAL DOUBTS ABOUT KONIGSBERG'S MORAL
FITNESS TO PRACTICE LAW. 

(1)  TESTIMONY OF THE EX-COMMUNIST.  - THE SUSPICION THAT KONIGSBERG
WAS OR HAD BEEN A COMMUNIST WAS BASED CHIEFLY ON THE TESTIMONY OF A
SINGLE EX-COMMUNIST THAT KONIGSBERG HAD ATTENDED MEETINGS OF A
COMMUNIST PARTY UNIT IN 1941.  FROM THE WITNESS' TESTIMONY IT APPEARS
THAT THIS UNIT WAS SOME KIND OF DISCUSSION GROUP.  ON CROSS-EXAMINATION
SHE CONCEDED THAT HER SOLE BASIS FOR BELIEVING THAT KONIGSBERG WAS A
MEMBER OF THAT PARTY WAS HIS ATTENDANCE AT THESE MEETINGS.  HER
TESTIMONY CONCERNED EVENTS THAT OCCURRED MANY YEARS BEFORE AND HER
IDENTIFICATION OF KONIGSBERG WAS NOT VERY CONVINCING.   (FN23)  SHE
ADMITTED THAT SHE HAD NOT KNOWN HIM PERSONALLY AND NEVER HAD ANY
CONTACT WITH HIM EXCEPT AT THESE MEETINGS IN 1941.  KONIGSBERG DENIED
THAT HE HAD EVER SEEN HER OR KNOWN HER.  AND IN RESPONSE TO A BAR
EXAMINER'S QUESTION AS TO WHETHER HE WAS A COMMUNIST, IN THE
PHILOSOPHICAL SENSE, AS DISTINGUISHED FROM A MEMBER OF THE COMMUNIST
PARTY, KONIGSBERG REPLIED:  "IF YOU WANT A CATEGORICAL ANSWER TO 'ARE
YOU A COMMUNIST?'  THE ANSWER IS NO."  (FN24) 

EVEN IF IT BE ASSUMED THAT KONIGSBERG WAS A MEMBER OF THE COMMUNIST
PARTY IN 1941, THE MERE FACT OF MEMBERSHIP WOULD NOT SUPPORT AN
INFERENCE THAT HE DID NOT HAVE GOOD MORAL CHARACTER.  (FN25) THERE WAS
NO EVIDENCE THAT HE EVER ENGAGED IN OR ABETTED ANY UNLAWFUL OR IMMORAL
ACTIVITIES - OR EVEN THAT HE KNEW OF OR SUPPORTED ANY ACTIONS OF THIS
NATURE.  IT MAY BE, ALTHOUGH THERE IS NO EVIDENCE IN THE RECORD BEFORE
US TO THAT EFFECT, THAT SOME MEMBERS OF THAT PARTY WERE INVOLVED IN
ILLEGAL OR DISLOYAL ACTIVITIES, BUT PETITIONER CANNOT BE SWEPT INTO
THIS GROUP SOLELY ON THE BASIS OF HIS ALLEGED MEMBERSHIP IN THAT
PARTY.  IN 1941 THE COMMUNIST PARTY WAS A RECOGNIZED POLITICAL PARTY IN
THE STATE OF CALIFORNIA.  CITIZENS OF THAT STATE WERE FREE TO BELONG TO
THAT PARTY IF THEY WANTED TO DO SO.  THE STATE HAD NOT ATTEMPTED TO
ATTACH PENALTIES OF ANY KIND TO MEMBERSHIP IN THE COMMUNIST PARTY.  ITS
CANDIDATES' NAMES WERE ON THE BALLOTS CALIFORNIA SUBMITTED TO ITS
VOTERS.  THOSE WHO ACCEPTED THE STATE AT ITS WORD AND JOINED THAT PARTY
HAD A RIGHT TO EXPECT THAT THE STATE WOULD NOT PENALIZE THEM, DIRECTLY
OR INDIRECTLY, FOR DOING SO THEREAFTER.  (FN26) 

(2)  CRITICISM OF CERTAIN PUBLIC OFFICIALS AND THEIR POLICIES.  - IN
1950 KONIGSBERG WROTE A SERIES OF EDITORIALS FOR A LOCAL NEWSPAPER.  IN
THESE EDITORIALS HE SEVERELY CRITICIZED, AMONG OTHER THINGS, THIS
COUNTRY'S PARTICIPATION IN THE KOREAN WAR, THE ACTIONS AND POLICIES OF
THE LEADERS OF THE MAJOR POLITICAL PARTIES, THE INFLUENCE OF "BIG
BUSINESS" IN AMERICAN LIFE, RACIAL DISCRIMINATION, AND THIS COURT'S
DECISIONS IN DENNIS AND OTHER CASES.  (FN27)  WHEN READ IN THE LIGHT OF
THE ORDINARY GIVE-AND-TAKE OF POLITICAL CONTROVERSY THE EDITORIALS
KONIGSBERG WROTE ARE NOT UNUSUALLY EXTREME AND FAIRLY INTERPRETED ONLY
SAY THAT CERTAIN OFFICIALS WERE PERFORMING THEIR DUTIES IN A MANNER
THAT, IN THE OPINION OF THE WRITER, WAS INJURIOUS TO THE PUBLIC.  WE DO
NOT BELIEVE THAT AN INFERENCE OF BAD MORAL CHARACTER CAN RATIONALLY BE
DRAWN FROM THESE EDITORIALS.  (FN28)  BECAUSE OF THE VERY NATURE OF OUR
DEMOCRACY SUCH EXPRESSIONS OF POLITICAL VIEWS MUST BE PERMITTED. 
CITIZENS HAVE A RIGHT UNDER OUR CONSTITUTIONAL SYSTEM TO CRITICIZE
GOVERNMENT OFFICIALS AND AGENCIES.  COURTS ARE NOT, AND SHOULD NOT BE,
IMMUNE TO SUCH CRITICISM.  (FN29)  GOVERNMENT CENSORSHIP CAN NO MORE BE
RECONCILED WITH OUR NATIONAL CONSTITUTIONAL STANDARD OF FREEDOM OF
SPEECH AND PRESS WHEN DONE IN THE GUISE OF DETERMINING "MORAL
CHARACTER," THAN IF IT SHOULD BE ATTEMPTED DIRECTLY. 

(3)  REFUSAL TO ANSWER QUESTIONS.  - DURING THE PROLONGED HEARINGS
BEFORE THE COMMITTEE OF BAR EXAMINERS, KONIGSBERG WAS NOT ASKED
DIRECTLY ABOUT HIS HONESTY, TRUSTWORTHINESS, OR OTHER TRAITS WHICH ARE
GENERALLY THOUGHT OF AS RELATED TO GOOD CHARACTER.  ALMOST ALL OF THE
BAR EXAMINERS' QUESTIONS CONCERNED HIS POLITICAL AFFILIATIONS,
EDITORIALS AND BELIEFS.  KONIGSBERG REPEATEDLY DECLINED TO ANSWER SUCH
QUESTIONS, EXPLAINING THAT HIS REFUSAL WAS BASED ON HIS UNDERSTANDING
THAT UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION A STATE COULD NOT INQUIRE INTO A PERSON'S POLITICAL
OPINIONS OR ASSOCIATIONS AND THAT HE HAD A DUTY NOT TO ANSWER. 
ESSENTIALLY, THIS IS THE SAME STAND HE HAD TAKEN SEVERAL YEARS BEFORE
WHEN CALLED UPON TO ANSWER SIMILAR QUESTIONS BEFORE THE TENNEY
COMMITTEE. 

THE STATE ARGUES THAT KONIGSBERG'S REFUSAL TO TELL THE EXAMINERS
WHETHER HE WAS A MEMBER OF THE COMMUNIST PARTY OR WHETHER HE HAD
ASSOCIATED WITH PERSONS WHO WERE MEMBERS OF THAT PARTY OR GROUPS WHICH
WERE ALLEGEDLY COMMUNIST DOMINATED TENDS TO SUPPORT AN INFERENCE THAT
HE IS A MEMBER OF THE COMMUNIST PARTY AND THEREFORE A PERSON OF BAD
MORAL CHARACTER.  WE FIND IT UNNECESSARY TO DECIDE IF KONIGSBERG'S
CONSTITUTIONAL OBJECTIONS TO THE COMMITTEE'S QUESTIONS WERE WELL
FOUNDED.  PRIOR DECISIONS BY THIS COURT INDICATE THAT HIS CLAIM THAT
THE QUESTIONS WERE IMPROPER WAS NOT FRIVOLOUS (FN30) AND WE FIND
NOTHING IN THE RECORD WHICH INDICATES THAT HIS POSITION WAS NOT TAKEN
IN GOOD FAITH.  OBVIOUSLY THE STATE COULD NOT DRAW UNFAVORABLE
INFERENCES AS TO HIS TRUTHFULNESS, CANDOR OR HIS MORAL CHARACTER IN
GENERAL IF HIS REFUSAL TO ANSWER WAS BASED ON A BELIEF THAT THE UNITED
STATES CONSTITUTION PROHIBITED THE TYPE OF INQUIRIES WHICH THE
COMMITTEE WAS MAKING.  (FN31)  ON THE RECORD BEFORE US, IT IS OUR
JUDGMENT THAT THE INFERENCES OF BAD MORAL CHARACTER WHICH THE COMMITTEE
ATTEMPTED TO DRAW FROM KONIGSBERG'S REFUSAL TO ANSWER QUESTIONS ABOUT
HIS POLITICAL AFFILIATIONS AND OPINIONS ARE UNWARRANTED. 

B. ADVOCATING THE OVERTHROW OF GOVERNMENT BY FORCE.  - THE COMMITTEE
ALSO FOUND THAT KONIGSBERG HAD FAILED TO PROVE THAT HE DID NOT ADVOCATE
THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR CALIFORNIA BY
FORCE AND VIOLENCE.  KONIGSBERG REPEATEDLY TESTIFIED UNDER OATH BEFORE
THE COMMITTEE THAT HE DID NOT BELIEVE IN NOR ADVOCATE THE OVERTHROW OF
ANY GOVERNMENT IN THIS COUNTRY BY ANY UNCONSTITUTIONAL MEANS.  FOR
EXAMPLE, IN RESPONSE TO ONE QUESTION AS TO WHETHER HE ADVOCATED
OVERTHROWING THE GOVERNMENT, HE EMPHATICALLY DECLARED:  "I ANSWER
SPECIFICALLY I DO NOT, I NEVER DID OR NEVER WILL."  NO WITNESS
TESTIFIED TO THE CONTRARY.  AS A MATTER OF FACT, MANY OF THE WITNESSES
GAVE TESTIMONY WHICH WAS UTTERLY INCONSISTENT WITH THE PREMISE THAT HE
WAS DISLOYAL.  (FN32)  AND KONIGSBERG TOLD THE COMMITTEE THAT HE WAS
READY AT ANY TIME TO TAKE AN OATH TO UPHOLD THE CONSTITUTION OF THE
UNITED STATES AND THE CONSTITUTION OF CALIFORNIA.  (FN33) 

EVEN IF IT BE ASSUMED THAT KONIGSBERG BELONGED TO THE COMMUNIST PARTY
IN 1941, THIS DOES NOT PROVIDE A REASONABLE BASIS FOR A BELIEF THAT HE
PRESENTLY ADVOCATES OVERTHROWING THE GOVERNMENT BY FORCE.  (FN34)  THE
EX-COMMUNIST, WHO TESTIFIED THAT KONIGSBERG ATTENDED MEETINGS OF A
COMMUNIST UNIT IN 1941, COULD NOT REMEMBER ANY STATEMENTS BY HIM OR
ANYONE ELSE AT THOSE MEETINGS ADVOCATING THE VIOLENT OVERTHROW OF THE
GOVERNMENT.  AND CERTAINLY THERE IS NOTHING IN THE NEWSPAPER EDITORIALS
THAT KONIGSBERG WROTE THAT TENDS TO SUPPORT A FINDING THAT HE CHAMPIONS
VIOLENT OVERTHROW.  INSTEAD, THE EDITORIALS EXPRESSED HOSTILITY TO SUCH
A DOCTRINE.  FOR EXAMPLE, KONIGSBERG WROTE:    "IT IS VEHEMENTLY
ASSERTED THAT ADVOCACY OF FORCE AND VIOLENCE IS A DANGER TO THE
AMERICAN GOVERNMENT AND THAT ITS PROPONENTS SHOULD BE PUNISHED.  WITH
THIS I AGREE.  SUCH ADVOCACY IS UN-AMERICAN AND DOES UNDERMINE OUR
DEMOCRATIC PROCESSES.  THOSE WHO PREACH IT MUST BE PUNISHED." 

COUNSEL FOR CALIFORNIA OFFERS THE FOLLOWING EDITORIAL AS EVIDENCE
THAT KONIGSBERG ADVOCATES OVERTHROW OF THE GOVERNMENT BY FORCE AND
VIOLENCE: 

"LOYALTY TO AMERICA, IN MY OPINION, HAS ALWAYS MEANT ADHERENCE TO THE
BASIC PRINCIPLES OF OUR CONSTITUTION AND DECLARATION OF INDEPENDENCE -
NOT LOYALTY TO ANY MAN OR GROUP OF MEN.  LOYALTY TO AMERICA MEANS
BELIEF IN AND MILITANT SUPPORT OF HER NOBLE IDEALS AND THE FAITH OF HER
PEOPLE.  LOYALTY TO AMERICA TODAY, THEREFORE, MUST MEAN OPPOSITION TO
THOSE WHO ARE BETRAYING OUR COUNTRY'S TRADITIONS, WHO ARE SQUANDERING
HER MANPOWER, HER HONOR AND HER RICHES." 

ON ITS SURFACE THIS EDITORIAL DOES NOT APPEAR TO BE A CALL FOR ARMED
REVOLUTION.  TO THE CONTRARY, IT MANIFESTS A STRONGLY HELD CONVICTION
FOR OUR CONSTITUTIONAL SYSTEM OF GOVERNMENT.  HOWEVER, THE STATE
ATTEMPTS TO DRAW AN INFERENCE ADVERSE TO KONIGSBERG FROM HIS USE OF THE
WORD "MILITANT" WHICH IT POINTS OUT IN ONE SENSE MEANS "WARLIKE."  TO
US IT SEEMS FAR-FETCHED TO SAY THAT EXHORTATION TO "MILITANT" SUPPORT
OF AMERICA'S "NOBLE IDEALS" DEMONSTRATES A WILLINGNESS TO OVERTHROW OUR
DEMOCRATIC INSTITUTIONS.  (FN35) 

WE RECOGNIZE THE IMPORTANCE OF LEAVING STATES FREE TO SELECT THEIR
OWN BARS, BUT IT IS EQUALLY IMPORTANT THAT THE STATE NOT EXERCISE THIS
POWER IN AN ARBITRARY OR DISCRIMINATORY MANNER NOR IN SUCH WAY AS TO
IMPINGE ON THE FREEDOM OF POLITICAL EXPRESSION OR ASSOCIATION.  A BAR
COMPOSED OF LAWYERS OF GOOD CHARACTER IS A WORTHY OBJECTIVE BUT IT IS
UNNECESSARY TO SACRIFICE VITAL FREEDOMS IN ORDER TO OBTAIN THAT GOAL. 
IT IS ALSO IMPORTANT BOTH TO SOCIETY AND THE BAR ITSELF THAT LAWYERS BE
UNINTIMIDATED - FREE TO THINK, SPEAK, AND ACT AS MEMBERS OF AN
INDEPENDENT BAR.  (FN36)  IN THIS CASE WE ARE COMPELLED TO CONCLUDE
THAT THERE IS NO EVIDENCE IN THE RECORD WHICH RATIONALLY JUSTIFIES A
FINDING THAT KONIGSBERG FAILED TO ESTABLISH HIS GOOD MORAL CHARACTER OR
FAILED TO SHOW THAT HE DID NOT ADVOCATE FORCEFUL OVERTHROW OF THE
GOVERNMENT.  WITHOUT SOME AUTHENTIC RELIABLE EVIDENCE OF UNLAWFUL OR
IMMORAL ACTIONS REFLECTING ADVERSELY UPON HIM, IT IS DIFFICULT TO
COMPREHEND WHY THE STATE BAR COMMITTEE REJECTED A MAN OF KONIGSBERG'S
BACKGROUND AND CHARACTER AS MORALLY UNFIT TO PRACTICE LAW.  AS WE SAID
BEFORE, THE MERE FACT OF KONIGSBERG'S PAST MEMBERSHIP IN THE COMMUNIST
PARTY, IF TRUE, WITHOUT ANYTHING MORE, IS NOT AN ADEQUATE BASIS FOR
CONCLUDING THAT HE IS DISLOYAL OR A PERSON OF BAD CHARACTER.  A
LIFETIME OF GOOD CITIZENSHIP IS WORTH VERY LITTLE IF IT IS SO FRAIL
THAT IT CANNOT WITHSTAND THE SUSPICIONS WHICH APPARENTLY WERE THE BASIS
FOR THE COMMITTEE'S ACTION. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED AND THE CASE REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  UNDER CALIFORNIA PROCEDURE THE STATE SUPREME COURT MAY ADMIT A
PERSON TO THE BAR UPON CERTIFICATION BY THE COMMITTEE OF BAR EXAMINERS
THAT HE MEETS THE NECESSARY REQUIREMENTS.  CALIFORNIA BUSINESS AND
PROFESSIONS CODE, 1937, SEC. 6064.  SECTION 6060(C) REQUIRES THAT AN
APPLICANT MUST HAVE "GOOD MORAL CHARACTER" BEFORE HE CAN BE CERTIFIED. 
THE GOVERNMENT OF THE UNITED STATES OR OF THIS STATE BY FORCE,
VIOLENCE, OR OTHER UNCONSTITUTIONAL MEANS, SHALL BE CERTIFIED TO THE
SUPREME COURT FOR ADMISSION AND A LICENSE TO PRACTICE LAW." 

FN2  SEE ALSO PRESTON V. STATE BAR OF CALIFORNIA, 28 CAL. 2D 643, 171
P.2D 435; BRYDONJACK V. STATE BAR OF CALIFORNIA, 208 CAL. 439, 281 P.
1018. 

FN3  RULE 59(B) IS SET OUT AT 36 CAL. 2D 43.  GENERALLY, THE
CALIFORNIA SUPREME COURT DIVIDES ITS RULES INTO TWO MAIN PARTS:  (1)
"RULES ON APPEAL," WHICH GOVERN APPEALS IN CIVIL AND CRIMINAL CASES;
AND (2) "RULES ON ORIGINAL PROCEEDINGS IN REVIEWING COURTS." 

FN4  THE PETITION ASSERTED: 

"1.  THAT THE PETITIONER SUSTAINED HIS BURDEN OF PROOF OF
ESTABLISHING HIS GOOD MORAL CHARACTER AND ALL OTHER REQUIREMENTS
ESTABLISHED BY LAW IN THE STATE OF CALIFORNIA FOR APPLICANTS FOR
ADMISSION TO THE BAR. 

"2.  THAT THE COMMITTEE ERRED IN ASSERTING THAT THE PETITIONER HAD
FAILED TO MEET HIS BURDEN OF PROOF OF ESTABLISHING HIS GOOD MORAL
CHARACTER. 

"3.  THAT NO LAWFUL EVIDENCE WAS RECEIVED OR EXISTS SUPPORTING THE
DENIAL OF THE APPLICATION OF THE PETITIONER." 

FN5  HE ALSO REFERRED TO NEAR V. MINNESOTA, 283 U.S. 697, AND FROST &
FROST TRUCKING CO. V. RAILROAD COMMISSION OF CALIFORNIA, 271 U.S. 583. 

FN6  CF. IN RE ADMISSION TO PRACTICE LAW, 1 CAL. 2D 61, 33 P.2D 829. 

FN7  THE BRIEF DID REFER TO PAGES OF THE RECORD WHERE CONSTITUTIONAL
ARGUMENTS WERE MADE AND CASES CITED TO SUPPORT THEM. 

FN8  PEOPLE V. MCLEAN, 135 CAL. 306, 67 P. 770; TITLE G.&T. CO. V.
FRATERNAL FINANCE CO., 220 CAL. 362, 30 P.2D 515. 

FN9  SEE, E.G., PEOPLE V. HADLEY, 175 CAL. 118, 119, 165 P. 442, 443;
PEOPLE V. YAROSLAWSKY, 110 CAL. APP. 175, 176, 293 P. 815, 816; PEOPLE
V. BUCK, 72 CAL. APP. 322, 237 P. 63. 

FN10  CF. BRYANT V. ZIMMERMAN, 278 U.S. 63, 67; ROGERS V. ALABAMA,
192 U.S. 226; BRIDGE PROPRIETORS V. HOBOKEN CO., 1 WALL.  116. 

FN11  THE RECORD, WHEN READ AS A WHOLE, SHOWS THAT KONIGSBERG TOOK
THE POSITION THAT HE WOULD ANSWER ALL QUESTIONS ABOUT HIS CHARACTER OR
LOYALTY EXCEPT THOSE DIRECTED TO HIS POLITICAL VIEWS AND BELIEFS AND TO
QUESTIONS ABOUT MEMBERSHIP IN THE COMMUNIST PARTY.  THE RECORD ALSO
SHOWS THAT THE COMMITTEE MADE NO EFFORT TO PURSUE ANY OTHER COURSE OF
INTERROGATION. 

FN12  NEITHER THE COMMITTEE AS A WHOLE NOR ANY OF ITS MEMBERS EVER
INTIMATED THAT KONIGSBERG WOULD BE BARRED JUST BECAUSE HE REFUSED TO
ANSWER RELEVANT INQUIRIES OR BECAUSE HE WAS OBSTRUCTING THE COMMITTEE. 
SOME MEMBERS INFORMED HIM THAT THEY DID NOT NECESSARILY ACCEPT HIS
POSITION THAT THEY WERE NOT ENTITLED TO INQUIRE INTO HIS POLITICAL
ASSOCIATIONS AND OPINIONS AND SAID THAT HIS FAILURE TO ANSWER WOULD
HAVE SOME BEARING ON THEIR DETERMINATION OF WHETHER HE WAS QUALIFIED. 
BUT THEY NEVER SUGGESTED THAT HIS FAILURE TO ANSWER THEIR QUESTIONS
WAS, BY ITSELF, A SUFFICIENT INDEPENDENT GROUND FOR DENIAL OF HIS
APPLICATION. 

FN13  THE ANSWER, IN PERTINENT PART, READ AS FOLLOWS: 

"PETITIONER WAS INVITED TO APPEAR AT A HEARING BEFORE THE SOUTHERN
SUBCOMMITTEE OF THE COMMITTEE OF BAR EXAMINERS ON THE 25TH DAY OF
SEPTEMBER, 1953, AT WHICH TIME HE WAS INFORMED OF EVIDENCE RAISING
DOUBTS AS TO HIS FITNESS TO PRACTICE LAW, AND WAS QUESTIONED CONCERNING
SUCH EVIDENCE AND OTHER MATTERS RELEVANT TO HIS QUALIFICATIONS TO
BECOME A MEMBER OF THE STATE BAR OF CALIFORNIA. 

     *         *         *         *     * 

"ON OR BEFORE THE 8TH DAY OF FEBRUARY, 1954 THE SOUTHERN SUBCOMMITTEE
OF THE COMMITTEE OF BAR EXAMINERS CONSIDERED ALL OF THE EVIDENCE WHICH
HAD BEEN PRESENTED, AND DETERMINED THAT PETITIONER HAD FAILED TO SHOW
HIS GOOD MORAL CHARACTER SO THAT HIS APPLICATION MUST BE DENIED.  ON OR
ABOUT THE 8TH DAY OF FEBRUARY, 1954 SAID SUBCOMMITTEE INFORMED THE
PETITIONER IN WRITING OF THE DENIAL OF HIS APPLICATION AND THE REASONS
THEREFOR. 

     *         *         *         *         * 

"ON OR PRIOR TO THE 17TH DAY OF MAY, 1954 THE FULL COMMITTEE
CONSIDERED ALL OF THE EVIDENCE WHICH HAD BEEN INTRODUCED AND DETERMINED
THAT PETITIONER HAD NOT SUSTAINED THE BURDEN OF PROOF THAT HE WAS
POSSESSOR OF THE GOOD MORAL CHARACTER REQUIRED BY CALIFORNIA BUSINESS
AND PROFESSIONS CODE, SECTION 6060(C) AND THAT HE HAD NOT COMPLIED WITH
PETITIONER WAS NOTIFIED OF THIS DECISION AND THE REASONS THEREFOR BY
LETTER DATED MAY 17, 1954. 

"PETITIONER HAS NOT COMPLIED WITH THE REQUIREMENTS OF CALIFORNIA
BUSINESS AND PROFESSIONS CODE, SECTIONS 6060(C) AND 6064.1 AND SO IS
NOT ENTITLED TO BE AND SHOULD NOT BE ADMITTED TO PRACTICE LAW IN THE
STATE OF CALIFORNIA." 

AS POINTED OUT IN NOTE 1, SUPRA, SEC. 6064.1 EXCLUDES APPLICANTS WHO
ADVOCATE THE OVERTHROW OF THE GOVERNMENT OF CALIFORNIA OR THE UNITED
STATES BY "UNCONSTITUTIONAL MEANS," WHILE SEC.  6060(C) REQUIRES THAT
AN APPLICANT MUST HAVE GOOD MORAL CHARACTER. 

FN14  CF. COLE V. ARKANSAS, 333 U.S. 196, 201. 

FN15  IN PRESENTING ITS VERSION OF THE QUESTIONS BEFORE THIS COURT,
THE BAR COMMITTEE DID NOT SUGGEST THAT THE DENIAL OF KONIGSBERG'S
APPLICATION COULD BE UPHELD MERELY BECAUSE HE HAD FAILED TO ANSWER
QUESTIONS.  NOR WAS SUCH A POSITION TAKEN ON ORAL ARGUMENT.  COUNSEL,
INSTEAD, REITERATED WHAT THE BAR COMMITTEE HAD CONTENDED THROUGHOUT,
NAMELY, THAT KONIGSBERG WAS REJECTED BECAUSE HE FAILED TO DISPEL
SUBSTANTIAL DOUBTS RAISED BY THE EVIDENCE IN THE RECORD ABOUT HIS
CHARACTER AND LOYALTY. 

FN16  SCHWARE V. BOARD OF BAR EXAMINERS, ANTE, P. 232; CF. WIEMAN V.
UPDEGRAFF, 344 U.S. 183. 

FN17  CF. LOCAL UNION NO. 10 V. GRAHAM, 345 U.S. 192, 197. 

FN18  SEE JORDAN V. DE GEORGE, 341 U.S. 223, 232 (DISSENTING OPINION);
UNITED STATES EX REL. IORIO V. DAY, 34 F.2D 920, 921; CAHN, AUTHORITY
AND RESPONSIBILITY, 51 COL. L. REV.  838. 

FN19  IN RE GARLAND, 219 CAL. 661, 28 P.2D 354. 

FN20  IN RE WELLS, 174 CAL. 467, 163 P. 657. 

FN21  SPEARS V. STATE BAR OF CALIFORNIA, 211 CAL. 183, 294 P. 697. 

FN22  THIS TESTIMONY WAS IN THE FORM OF WRITTEN STATEMENTS. 
KONIGSBERG OFFERED TO PRODUCE WITNESSES TO TESTIFY IN PERSON BUT THE
BOARD PREFERRED TO HAVE THEIR STATEMENTS IN WRITING. 

FN23  COUNSEL FOR THE BAR COMMITTEE ACKNOWLEDGED THIS IN ORAL
ARGUMENT.  HE STATED:  "NOW MRS. BENNETT'S TESTIMONY LEFT MUCH TO BE
DESIRED, THAT I CONCEDE.  HER IDENTIFICATION OF THIS MAN IS NOT ALL
THAT YOU MIGHT WISH." 

FN24  KONIGSBERG GAVE THIS ANSWER DURING THE FIRST HEARING HELD BY
THE COMMITTEE.  HE WAS NOT REPRESENTED BY COUNSEL AT THE TIME.  AT A
SUBSEQUENT HEARING HE STATED THAT HIS EARLIER WILLINGNESS TO ANSWER
THIS QUESTION WAS INCONSISTENT WITH HIS GENERAL POSITION THAT THE
COMMITTEE HAD NO RIGHT TO INQUIRE INTO HIS POLITICAL ASSOCIATIONS AND
BELIEFS.  HE SAID HE WOULD NOT ANSWER IF THE SAME QUESTION WERE THEN
PRESENTED TO HIM. 

FN25  SCHWARE V. BOARD OF BAR EXAMINERS, ANTE, P. 232; WIEMAN V.
UPDEGRAFF, 344 U.S. 183.  SEE SCHNEIDERMAN V. UNITED STATES, 320 U.S.
118, 136. 

FN26  CF. EX PARTE GARLAND, 4 WALL.  333, WHERE THIS COURT STRUCK
DOWN AN ATTEMPT TO EXCLUDE FROM THE PRACTICE OF LAW INDIVIDUALS WHO HAD
TAKEN UP ARMS AGAINST THE UNITED STATES IN THE WAR BETWEEN THE STATES. 
SEE ALSO CUMMINGS V. MISSOURI, 4 WALL.  277; BROWN AND FASSETT, LOYALTY
TESTS FOR ADMISSION TO THE BAR, 20 U. OF CHI.  L. REV. 480 (1953). 

FN27  FOR EXAMPLE, PETITIONER WROTE: 

"WHEN THE SUPREME COURT OF THESE BENIGHTED STATES CAN REFUSE TO
REVIEW THE CASE OF THE HOLLYWOOD TEN THUS MAKING THAT HIGH TRIBUNAL AN
INTEGRAL PART OF THE COLD WAR MACHINE DIRECTED AGAINST THE AMERICAN
PEOPLE - THEN THE ENEMIES OF DEMOCRACY HAVE INDEED WON A MAJOR
VICTORY.  WHEN THE COMMANDERS OF THE LAST LEGAL BULWARK OF OUR
LIBERTIES SELL OUT TO THE ENEMY, THEN THE FASCISTS HAVE GONE FAR, MUCH
FARTHER THAN MOST PEOPLE THINK.  HE WHO CANNOT SEE THE DANGEROUS
DAMNABLE PARALLEL TO WHAT HAPPENED IN GERMANY IS WILLFULLY BLIND." 

FN28  IN 1948 KONIGSBERG APPEARED BEFORE THE UN-AMERICAN ACTIVITIES
COMMITTEE OF THE CALIFORNIA SENATE, COMMONLY KNOWN AS THE TENNEY
COMMITTEE.  AT THAT TIME HE SHARPLY CRITICIZED THIS COMMITTEE, ACCUSING
IT OF SUBVERTING THE LIBERTIES OF AMERICANS, AND DECLARED: 

"I PLEDGE MY WORD TO USE EVERY DEMOCRATIC MEANS TO DEFEAT YOU." 

THE STATE POINTS TO PETITIONER'S CRITICISM OF THIS COMMITTEE AS
CASTING DOUBT ON HIS MORAL CHARACTER.  WHAT IS SAID IN THE TEXT
DISPOSES OF THIS CONTENTION. 

FN29  CF. BRIDGES V. CALIFORNIA, 314 U.S. 252. 

FN30 SEE, E.G., UNITED STATES V. RUMELY, 345 U.S. 41, 48 (CONCURRING
OPINION); THOMAS V. COLLINS, 323 U.S. 516, 531; WEST VIRGINIA BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624, 642; CANTWELL V. CONNECTICUT, 310
U.S. 296, 303-304; DE JONGE V. OREGON, 299 U.S. 353, 365-366.  A
DISSENTING OPINION IN JONES V. OPELIKA, 316 U.S. 584, 611, 618, WHICH
WAS ADOPTED ON REHEARING, 319 U.S. 103, DECLARED:  "FREEDOM TO THINK IS
ABSOLUTE OF ITS OWN NATURE; THE MOST TYRANNICAL GOVERNMENT IS POWERLESS
TO CONTROL THE INWARD WORKINGS OF THE MIND." 

FN31  CF. SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551, 557; SHEINER
V. FLORIDA, 82 SO.  2D 657; EX PARTE MARSHALL, 165 MISS.  523, 147 SO.
791.  AND SEE ULLMAN V. UNITED STATES, 350 U.S. 422, 426-428; OPINION
OF THE JUSTICES, 332 MASS. 763, 767-768, 126 N.E.2D 100, 102-103; IN RE
HOLLAND, 377 ILL. 346, 36 N.E.2D 543; MATTER OF GRAE, 282 N.Y. 428, 26
N.E.2D 963. 

FN32  SEE, FOR EXAMPLE, TEXT AT PP. 264-265. 

FN33  CALIFORNIA BUSINESS AND PROFESSIONS CODE, 1937, SEC. 6067,
REQUIRES: 

"EVERY PERSON ON HIS ADMISSION SHALL TAKE AN OATH TO SUPPORT THE
CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF THE STATE OF
CALIFORNIA, AND FAITHFULLY TO DISCHARGE THE DUTIES OF ANY ATTORNEY AT
LAW TO THE BEST OF HIS KNOWLEDGE AND ABILITY." 

FN34  COMPARE THE DISCUSSION IN THE TEXT AT FOOTNOTE 25, SUPRA, AND
SEE CASES CITED IN THAT FOOTNOTE. 

FN35  PETITIONER ALSO CONTENDS THAT IT VIOLATES DUE PROCESS TO MAKE
ADVOCACY OF OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF A
STATE BY FORCE, VIOLENCE, OR OTHER UNCONSTITUTIONAL MEANS AN AUTOMATIC
GROUND FOR DENYING THE RIGHT TO PRACTICE LAW REGARDLESS OF THE REASONS
FOR OR THE NATURE OF SUCH ADVOCACY.  BECAUSE OF OUR DISPOSITION OF THE
CASE, IT IS UNNECESSARY TO CONSIDER THIS ARGUMENT.    FN36  SEE CAMMER
V. UNITED STATES, 350 U.S. 399, 406-407.  COMPARE CHAFEE, THE HARVARD
LAW SCHOOL RECORD, NOV. 1, 1950, AND NOV. 8, 1950. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

INSISTENCE ON ESTABLISHMENT OF THE COURT'S JURISDICTION IS TOO OFTEN
TREATED, WITH SLIGHTING INTENT, AS A "TECHNICALITY."  IN TRUTH, DUE
REGARD FOR THE REQUIREMENTS OF THE CONDITIONS THAT ALONE GIVE THIS
COURT POWER TO REVIEW THE JUDGMENT OF THE HIGHEST COURT OF A STATE IS A
MATTER OF DEEP IMPORTANCE TO THE WORKING OF OUR FEDERALISM.  THE
ADMONITION UTTERED A HUNDRED YEARS AGO BY BENJAMIN R. CURTIS, ONE OF
THE ABLEST JUSTICES WHO EVER SAT ON THIS COURT, CANNOT BE TOO OFTEN
REPEATED: "LET IT BE REMEMBERED, ALSO, - FOR JUST NOW WE MAY BE IN SOME
DANGER OF FORGETTING IT, - THAT QUESTIONS OF JURISDICTION WERE
QUESTIONS OF POWER AS BETWEEN THE UNITED STATES AND THE SEVERAL
STATES."  2 MEMOIR OF CURTIS 340-341.  THE IMPORTANCE OF KEEPING WITHIN
THE LIMITS OF FEDERAL JURISDICTION WAS EMPHASIZED IN THE OPINION OF MR.
JUSTICE STONE, FOR A UNANIMOUS COURT, IN HEALY V. RATTA, 292 U.S. 263,
270:  "DUE REGARD FOR THE RIGHTFUL INDEPENDENCE OF STATE GOVERNMENTS,
WHICH SHOULD ACTUATE FEDERAL COURTS, REQUIRES THAT THEY SCRUPULOUSLY
CONFINE THEIR OWN JURISDICTION TO THE PRECISE LIMITS WHICH THE STATUTE
('THE ACTION OF CONGRESS IN CONFORMITY TO THE JUDICIARY SECTIONS OF THE
CONSTITUTION') HAS DEFINED." 

PREREQUISITES TO THE POWER OF THIS COURT TO REVIEW A JUDGMENT OF A
STATE COURT ARE THAT A FEDERAL CLAIM WAS PROPERLY BEFORE THE STATE
COURT AND THAT THE STATE COURT BASED ITS DECISION ON THAT CLAIM.   IF A
STATE COURT JUDGMENT IS RESTED ON A NON-FEDERAL GROUND, I.E., ON
RELEVANT STATE LAW, THIS COURT IS CONSTITUTIONALLY BARRED FROM
REVIEWING IT. WHILE A STATE MAY NOT, UNDER THE GUISE OF REGULATING ITS
LOCAL PROCEDURE, STRANGLE A FEDERAL CLAIM SO AS TO PREVENT IT FROM
COMING BEFORE A STATE COURT, IT HAS THE UNDOUBTED POWER TO PRESCRIBE
APPROPRIATE PROCEDURE FOR BRINGING ALL QUESTIONS FOR DETERMINATION
BEFORE ITS COURTS.  SQUEEZING OUT OF THE RECORD IN THIS CASE ALL THAT
CAN BE SQUEEZED, THE MOST THAT THE FIVE PAGES OF THE COURT'S OPINION
DEALING WITH THIS THRESHOLD QUESTION CAN BE SAID TO DEMONSTRATE IS THAT
THERE IS DOUBT WHETHER OR NOT THE CLAIM UNDER THE UNITED STATES
CONSTITUTION WAS PROPERLY PRESENTED TO THE CALIFORNIA SUPREME COURT,
ACCORDING TO ITS REQUIREMENTS. 

BEFORE THIS COURT CAN FIND THAT A STATE - AND THE JUDGMENT OF THE
SUPREME COURT OF CALIFORNIA EXPRESSES "THE POWER OF THE STATE AS A
WHOLE," RIPPEY V. TEXAS, 193 U.S. 504, 509; SKIRIOTES V. FLORIDA, 313
U.S. 69, 79 - HAS VIOLATED THE CONSTITUTION, IT MUST BE CLEAR FROM THE
RECORD THAT THE STATE COURT HAS IN FACT PASSED ON A FEDERAL QUESTION. 
AS A SAFEGUARD AGAINST INTRUSION UPON STATE POWER, IT HAS BEEN OUR
PRACTICE WHEN A FAIR DOUBT IS RAISED WHETHER A STATE COURT HAS IN FACT
ADJUDICATED A PROPERLY PRESENTED FEDERAL CLAIM NOT TO ASSUME OR PRESUME
THAT IT HAS DONE SO.  THE COURT HAS NOT BASED ITS POWER TO REVIEW ON
GUESS-WORK.  IT HAS REMANDED THE CASE TO THE STATE COURT TO ENABLE IT
TO MAKE CLEAR BY APPROPRIATE CERTIFICATION THAT IT HAS IN FACT RESTED
ITS DECISION ON REJECTION OF A FEDERAL CLAIM AND HAS NOT REACHED ITS
DECISION ON AN ADEQUATE STATE GROUND.  STRICT ADHERENCE TO THE
JURISDICTIONAL REQUIREMENT WAS INSISTED UPON IN WHITNEY V. CALIFORNIA,
THE WELL-KNOWN CIVIL LIBERTIES CASE, BY A COURT THAT INCLUDED JUSTICES
HOLMES AND BRANDEIS, AS MINDFUL AS ANY IN PROTECTING THE LIBERTIES
GUARANTEED BY THE DUE PROCESS CLAUSE.  WHITNEY V. CALIFORNIA, 269 U.S.
530, 538; 274 U.S. 357.  SEE ALSO HONEYMAN V. HANAN, 300 U.S. 14; CF.
MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551. 

THE PROCEDURE OF MAKING SURE, THROUGH APPROPRIATE CERTIFICATION BY A
STATE COURT, THAT THE FEDERAL QUESTION WAS IN FACT ADJUDICATED, IS A
SAFEGUARD AGAINST INFRINGEMENT OF POWERS THAT BELONG TO THE STATES AND
AT THE SAME TIME DULY PROTECTS THIS COURT'S JURISDICTION TO REVIEW
DENIAL OF A FEDERAL CLAIM BY A STATE COURT, IF IN FACT IT BECOMES CLEAR
THAT THERE WAS SUCH A DENIAL.  THIS MAY INVOLVE SOME DELAY IN THE FINAL
DETERMINATION OF A FEDERAL QUESTION.  THE PRICE OF SUCH DELAY IS SMALL
ENOUGH COST IN THE PROPER FUNCTIONING OF OUR FEDERAL SYSTEM IN ONE OF
ITS IMPORTANT ASPECTS.  THIS COURT HAS A SPECIAL RESPONSIBILITY TO BE
PARTICULARLY MINDFUL OF THE RESPECTIVE BOUNDARIES BETWEEN STATE AND
FEDERAL AUTHORITY. 

I WOULD REMAND THE CASE TO THE SUPREME COURT OF CALIFORNIA FOR ITS
CERTIFICATION WHETHER OR NOT IT DID IN FACT PASS ON A CLAIM PROPERLY
BEFORE IT UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

I SHARE THE JURISDICTIONAL VIEWS OF MY BROTHER FRANKFURTER.  EVEN SO,
SINCE THE COURT DECIDES THE CASE ON THE MERITS, I FEEL IT APPROPRIATE
TO DEAL WITH IT ON THAT BASIS, SINCE THE CASE IS IMPORTANT AND MY VIEWS
ABOUT IT DIFFER WIDELY FROM THOSE OF THE COURT.  I FEEL IMPELLED TO DO
SO, MORE PARTICULARLY, FOR TWO REASONS:  (1) THE RECORD, IN MY OPINION,
REVEALS SOMETHING QUITE DIFFERENT FROM THAT WHICH THE COURT DRAWS FROM
IT; (2) THIS CASE INVOLVES AN AREA OF FEDERAL-STATE RELATIONS - THE
RIGHT OF STATES TO ESTABLISH AND ADMINISTER STANDARDS FOR ADMISSION TO
THEIR BARS - INTO WHICH THIS COURT SHOULD BE ESPECIALLY RELUCTANT AND
SLOW TO ENTER.  GRANTING THAT THIS AREA OF STATE ACTION IS NOT EXEMPT
FROM FEDERAL CONSTITUTIONAL LIMITATIONS, SEE SCHWARE V. BOARD OF
EXAMINERS, ANTE, P. 232, DECIDED TODAY, I THINK THAT IN DOING WHAT IT
DOES HERE THE COURT STEPS OUTSIDE ITS PROPER ROLE AS THE FINAL ARBITER
OF SUCH LIMITATIONS, AND ACTS INSTEAD AS IF IT WERE A SUPER STATE COURT
OF APPEALS. 

THE FOLLOWING IS WHAT I BELIEVE TO BE AN ACCURATE STATEMENT OF THE
ISSUE TO BE DECIDED.  CALIFORNIA MAKES IT ONE OF ITS REQUIREMENTS
CONCERNING ADMISSION TO ITS BAR THAT NO ONE BE CERTIFIED TO THE SUPREME
COURT WHO ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES OR OF CALIFORNIA BY FORCE OR VIOLENCE.  IT ALSO REQUIRES THAT AN
APPLICANT BE OF GOOD MORAL CHARACTER.  THE APPLICANT HAS THE BURDEN OF
PROOF IN SHOWING THAT THESE REQUIREMENTS HAVE BEEN MET.  PETITIONER,
UNDER EXAMINATION BY THE DESIGNATED STATE AGENCY, MADE UNEQUIVOCAL
DISAVOWAL OF ADVOCACY OF THE OVERTHROW OF THE GOVERNMENT BY FORCE OR
VIOLENCE.  WITH A VIEW TO TESTING THE RELIABILITY OF THIS DISAVOWAL,
AND THE MORAL CHARACTER OF PETITIONER, THE BAR EXAMINERS QUESTIONED HIM
ABOUT ORGANIZATIONS TO WHICH HE BELONGED, ESPECIALLY CURRENT OR PAST
MEMBERSHIP IN THE COMMUNIST PARTY.  PETITIONER PERSISTED IN REFUSING TO
ANSWER THESE QUESTIONS DESPITE THE ENTIRELY REASONED AND REPEATED
EFFORTS OF MEMBERS OF THE COMMITTEE TO SECURE ANSWERS.  HIS REFUSALS
WERE NOT BASED ON A CLAIM THAT THE QUESTIONS WERE IRRELEVANT TO AN
EXAMINATION OF HIS FITNESS UNDER CALIFORNIA LAW.  THE REFUSALS WERE
BASED SOLELY ON THE GROUND THAT CONSTITUTIONALLY THE COMMITTEE WAS
LIMITED TO ASKING HIM WHETHER HE ADVOCATED THE OVERTHROW OF THE
GOVERNMENT BY FORCE AND VIOLENCE, AND HAVING ASKED THAT QUESTION, IT
COULD ASK HIM NO RELATED QUESTION. 

ON THE BASIS OF THE FOREGOING CIRCUMSTANCES, THE SUPREME COURT OF
CALIFORNIA REFUSED TO OVERRULE THE FINDING OF THE BAR COMMITTEE THAT HE
HAD NOT QUALIFIED FOR ADMISSION TO THE BAR. 

THE QUESTION FOR THIS COURT IS WHETHER IN SO REFUSING PETITIONER
ADMISSION TO THE BAR, CALIFORNIA THROUGH ITS SUPREME COURT DEPRIVED
PETITIONER OF LIBERTY AND PROPERTY WITHOUT DUE PROCESS. 

AT THE OUTSET THERE SHOULD BE LAID ASIDE CERTAIN THINGS WHICH ARE NOT
INVOLVED IN THIS CASE.  THE COURT DOES NOT FIND WANTING IN ANY RESPECT
CALIFORNIA'S REQUIREMENTS FOR ADMISSION TO THE BAR - THAT AN APPLICANT
(A) MUST BE "A PERSON OF GOOD MORAL CHARACTER," (FN1) AND (B) MUST NOT
BE AN ADVOCATE OF THE OVERTHROW OF THE FEDERAL OR STATE GOVERNMENT "BY
FORCE, VIOLENCE, OR OTHER UNCONSTITUTIONAL MEANS."  (FN2)  NOR DOES THE
COURT QUESTION THE STATE RULE OF PRACTICE PLACING THE BURDEN OF PROOF
ON THE APPLICANT IN BOTH RESPECTS.  (FN3)  THE COURT DOES NOT HOLD THAT
THE FIRST OR FOURTEENTH AMENDMENT ENTITLED KONIGSBERG TO REFUSE TO
ANSWER ANY OF THE QUESTIONS PUT TO HIM BY THE BAR COMMITTEE, (FN4) OR
THAT ANY OF SUCH QUESTIONS WERE IRRELEVANT OR IMPROPER.  THE FAIRNESS
OF THE FOUR HEARINGS ACCORDED KONIGSBERG IS NOT ATTACKED IN ANY
RESPECT.  (FN5)  THE COURT'S DECISION RESTS WHOLLY ON THE ALLEGED
INSUFFICIENCY OF THE RECORD TO SUPPORT THE COMMITTEE'S CONCLUSION THAT
KONIGSBERG HAD FAILED TO MEET THE BURDEN OF ESTABLISHING THAT HE WAS A
PERSON OF GOOD MORAL CHARACTER AND NOT AN ADVOCATE OF VIOLENT OVERTHROW
OF THE GOVERNMENT.  THE COURT SAYS: 

"  ...  WE ARE COMPELLED TO CONCLUDE THAT THERE IS NO EVIDENCE IN THE
RECORD WHICH RATIONALLY JUSTIFIES A FINDING THAT KONIGSBERG FAILED TO
ESTABLISH HIS GOOD MORAL CHARACTER OR FAILED TO SHOW THAT HE DID NOT
ADVOCATE FORCEFUL OVERTHROW OF THE GOVERNMENT.  WITHOUT SOME AUTHENTIC
RELIABLE EVIDENCE OF UNLAWFUL OR IMMORAL ACTIONS REFLECTING ADVERSELY
UPON HIM, IT IS DIFFICULT TO COMPREHEND WHY THE STATE BAR COMMITTEE
REJECTED A MAN OF KONIGSBERG'S BACKGROUND AND CHARACTER AS MORALLY
UNFIT TO PRACTICE LAW." 

THIS MAKES THE RECORD IMPORTANT.  BEFORE TURNING TO IT, HOWEVER, IT
WILL BE WELL TO REVERT TO THE TRUE CHARACTER OF THE ISSUE BEFORE US.
THE COURT DECIDES THE CASE AS IF THE ISSUE WERE WHETHER THE RECORD
CONTAINS EVIDENCE DEMONSTRATING AS A FACTUAL MATTER THAT KONIGSBERG HAD
A BAD MORAL CHARACTER.  I DO NOT THINK THAT IS THE ISSUE.  THE QUESTION
BEFORE US, IT SEEMS TO ME, IS WHETHER IT VIOLATES THE FOURTEENTH
AMENDMENT FOR A STATE BAR COMMITTEE TO DECLINE TO CERTIFY FOR ADMISSION
TO THE BAR AN APPLICANT WHO OBSTRUCTS A PROPER INVESTIGATION INTO HIS
QUALIFICATIONS BY DELIBERATELY, AND WITHOUT CONSTITUTIONAL
JUSTIFICATION, REFUSING TO ANSWER QUESTIONS RELEVANT TO HIS FITNESS
UNDER VALID STANDARDS, AND WHO IS THEREFORE DEEMED BY THE STATE, UNDER
ITS LAW, TO HAVE FAILED TO CARRY HIS BURDEN OF PROOF TO ESTABLISH THAT
HE IS QUALIFIED.  (FN6) 

I DO NOT UNDERSTAND THE PROCESS OF REASONING BY WHICH THE COURT
ATTEMPTS TO MAKE A SEPARATE ISSUE OUT OF PETITIONER'S REFUSAL TO ANSWER
QUESTIONS, AND THEN, IN EFFECT, READS IT OUT OF THE CASE BECAUSE
CALIFORNIA HAS NOT CONSTITUTED SUCH REFUSAL AN "INDEPENDENT" GROUND FOR
DENYING ADMISSION.  WHAT THE STATE HAS DONE, AND WHAT THE BAR COMMITTEE
REPEATEDLY WARNED THE PETITIONER IT WOULD DO, (FN7) IS TO SAY THAT THE
PETITIONER'S REFUSAL TO ANSWER QUESTIONS MADE IT IMPOSSIBLE TO PROCEED
TO AN AFFIRMATIVE CERTIFICATION THAT HE WAS QUALIFIED - I.E., THAT HIS
REFUSAL PLACED HIM IN A POSITION WHERE HE MUST BE DEEMED TO HAVE FAILED
TO SUSTAIN HIS BURDEN OF PROOF.  WHETHER THE STATE WAS JUSTIFIED IN
DOING THIS UNDER THE FOURTEENTH AMENDMENT IS THE SOLE ISSUE BEFORE US,
AND THAT ISSUE IS NOT SUSCEPTIBLE OF THE FRAGMENTATION TO WHICH THE
COURT SEEKS TO SUBJECT IT.  I AM UNABLE TO FOLLOW THE COURT WHEN IT
SAYS, ON THE ONE HAND, THAT ON THE ISSUE OF PETITIONER'S QUALIFICATIONS
"WE MUST, OF COURSE, TAKE INTO ACCOUNT THE COMMITTEE'S CONTENTION THAT
KONIGSBERG'S FAILURE TO RESPOND TO QUESTIONS WAS EVIDENCE FROM WHICH
SOME INFERENCE OF DOUBTFUL CHARACTER AND LOYALTY CAN BE DRAWN," (FN8)
AND, ON THE OTHER HAND, THAT THE COMMITTEE WAS NOT ENTITLED TO TREAT
PETITIONER'S REFUSAL TO ANSWER AS A FAILURE ON HIS PART TO MEET THE
BURDEN OF PROOF AS TO HIS QUALIFICATIONS. 

OF COURSE CALIFORNIA HAS NOT LAID DOWN AN ABSTRACT RULE THAT REFUSAL
TO ANSWER ANY QUESTION UNDER ANY CIRCUMSTANCES IPSO FACTO CALLS FOR
DENIAL OF ADMISSION TO THE BAR.  BUT JUST BECAUSE THE STATE HAS NO SUCH
ABSTRACT STATUTORY RULE DOES NOT MEAN THAT A BAR COMMITTEE CANNOT IN A
PARTICULAR CASE CONCLUDE THAT FAILURE TO ANSWER PARTICULAR QUESTIONS SO
BLOCKS THE INQUIRY THAT IT IS UNABLE TO CERTIFY THE APPLICANT AS
QUALIFIED.  IN OTHER WORDS, WHAT CALIFORNIA HAS DONE HERE IS TO SAY
THAT THE COMMITTEE WAS JUSTIFIED IN CONCLUDING THAT REFUSAL TO ANSWER
THESE QUESTIONS UNDER THESE CIRCUMSTANCES MEANS THAT THE APPLICANT HAS
FAILED TO MEET THE REQUIREMENT THAT HE SET FORTH HIS QUALIFICATIONS
AFFIRMATIVELY.  THUS I THINK THE COURT IS QUITE MISTAKEN IN STATING
THAT "THE BOARD ITSELF HAS NOT SEEN FIT, AT ANY TIME, TO BASE ITS
EXCLUSION OF KONIGSBERG ON HIS FAILURE TO ANSWER."   I TURN NOW TO THE
STATE'S BRIEF AND THE RECORD, WHICH SHOW, IT SEEMS TO ME, THAT FAILURE
TO ANSWER WAS THE REASON FOR EXCLUSION. 

                   I. 

I HAD NOT SUPPOSED THAT IT COULD BE SERIOUSLY CONTENDED THAT
CALIFORNIA'S REQUIREMENTS FOR ADMISSION TO THE BAR DO NOT AUTHORIZE THE
REJECTION OF A CANDIDATE FOR CONSTITUTIONALLY UNPROTECTED OBSTRUCTION
OF A VALID INVESTIGATION INTO HIS QUALIFICATIONS UNDER SUCH
REQUIREMENTS.  CF. SCHWARE V. BOARD OF EXAMINERS, SUPRA (CONCURRING
OPINION).  AND IT IS UNMISTAKABLE FROM THE STATE'S BRIEF IN THIS COURT
THAT CALIFORNIA DOES CLAIM THE RIGHT, IN THE CIRCUMSTANCES OF THIS
CASE, TO REJECT THE PETITIONER FOR HIS REFUSAL TO ANSWER THE QUESTIONS
THAT WERE RELEVANT TO HIS QUALIFICATIONS UNDER THE STATE'S REQUIREMENTS
FOR ADMISSION TO THE BAR.  (FN9)  THE FOLLOWING APPEARS ON PP. 56-59 OF
THAT BRIEF: 

"EVEN WHERE NO SERIOUS DOUBT ARISES WITH RESPECT TO AN APPLICANT'S
QUALIFICATIONS, IT IS STANDARD PRACTICE TO INQUIRE INTO MANY PERSONAL
MATTERS WHICH A PERSON IS NORMALLY PRIVILEGED TO KEEP TO HIMSELF. 
THUS, THE STANDARD APPLICATION FORM REQUIRED OF ALL APPLICANTS ASKS THE
APPLICANT FOR DETAILS OF HIS PAST EMPLOYMENT, EDUCATION, WHETHER HE WAS
EVER SUSPENDED, REPRIMANDED OR CENSURED AS A MEMBER OF ANY PROFESSION
OR ORGANIZATION, WHETHER HE HAS EVER BEEN ARRESTED, WHETHER HE HAS EVER
BEEN A PARTY TO A LAWSUIT AND FOR THE DETAILS OF ANY INCIDENTS OF A
DEROGATORY NATURE BEARING ON HIS FITNESS TO PRACTICE LAW.  IF THE
ANSWERS TO SUCH QUESTIONS EMBARRASS AN APPLICANT, HE IS PRIVILEGED TO
REFUSE TO ANSWER JUST AS HE IS PRIVILEGED TO REFUSE TO ANSWER ANY
QUESTION ON THE BAR EXAMINATION.  HOWEVER, IN EITHER CASE HE RUNS THE
RISK THAT FAILURE TO ANSWER SUCH QUESTIONS WILL PREVENT HIS ADMISSION
TO THE BAR.    "RESPONDENTS SUBMIT THAT IT IS IN NO SENSE UNREASONABLE
OR IMPROPER TO REQUIRE AN APPLICANT TO COOPERATE IN SUPPLYING ALL
REQUESTED INFORMATION THAT IS RELEVANT TO HIS STATUTORY QUALIFICATIONS
...  . 

"(A)  GOOD MORAL CHARACTER: - REASONABLE DOUBTS THAT PETITIONER WAS A
PERSON OF GOOD MORAL CHARACTER AROSE FROM MANY SOURCES: 

     *         *         *         *      * 

"(5)  PETITIONER'S REFUSAL TO ANSWER QUESTIONS IN SUCH BROAD AREAS OF
INQUIRY AS TO EFFECTIVELY PREVENT INQUIRY INTO BROAD AREAS OF DOUBT. 

     *         *         *   *         * 

"PETITIONER STATED THAT HE DID NOT ADVOCATE THE VIOLENT OVERTHROW OF
THE GOVERNMENT.  HE THEREAFTER TOOK THE POSITION THAT ANY FURTHER
INQUIRY BY THE COMMITTEE WITH RESPECT TO THIS REQUIREMENT WAS
FORECLOSED.  THIS IS EQUIVALENT TO HIS APPEARING BEFORE THE COMMITTEE
AND STATING THAT HE IS A PERSON OF GOOD MORAL CHARACTER AND THE
COMMITTEE MUST ACCEPT HIS STATEMENT AND NOT INQUIRE FURTHER.  EVEN WERE
THERE NO ADVERSE EVIDENCE IN THE RECORD, RESPONDENTS COULD PROPERLY
REFUSE TO CERTIFY AN APPLICANT AS NOT HAVING ESTABLISHED HIS COMPLIANCE
WITH ...  SECTION 6064.1, WHERE, AS HERE, HE TOOK THE POSITION THAT HIS
BARE ANSWER THAT HE COMPLIED WITH THE REQUIREMENT FORECLOSED FURTHER
INQUIRY  ...  ." 

I NOW TURN TO THE RECORD WHICH ALSO SHOWS IN UNMISTAKABLE TERMS THAT
THE COMMITTEE'S PRIMARY CONCERN RELATED TO THE PETITIONER'S PERSISTENT
BLOCKING OF ITS EFFORTS TO TEST THE VERACITY OF HIS STATEMENT THAT HE
DID NOT ADVOCATE FORCIBLE OVERTHROW OF GOVERNMENT.  (FN10)

                           II. 

THE STORY IS BEST TOLD IN THE LANGUAGE OF THE RECORD ITSELF.  I SHALL
INTERPOLATE ONLY TO THE EXTENT NECESSARY TO PUT WHAT IS QUOTED IN
CONTEXT. 

THE FIRST HEARING BEFORE THE SUBCOMMITTEE TOOK PLACE ON SEPTEMBER 25,
1953.  AT THAT TIME KONIGSBERG APPEARED WITHOUT COUNSEL.  AFTER SOME
PRELIMINARY INQUIRES AS TO KONIGSBERG'S HISTORY, AND QUESTIONING AS TO
HIS CONNECTIONS WITH ALLEGEDLY "SUBVERSIVE" ORGANIZATIONS, THE
FOLLOWING ENSUED: 

"Q.  I ASSUME THAT YOU ARE ACQUAINTED WITH THE STATE STATUTE THAT WE
NOW HAVE ON OUR BOOKS WHERE AMONG OTHER THINGS WE ARE OBLIGED TO
INQUIRE INTO THIS TYPE OF A THING, AND WHERE WE FIND THAT ANY PEOPLE
APPEAR TO HAVE THE VIEWS OF ENDEAVORING TO CHANGE OUR GOVERNMENT AND SO
FORTH BY FORCE OR VIOLENCE, OR IN OTHER WORDS THE POPULAR CONCEPTION OF
COMMUNISM THAT WE ARE EXPRESSLY PROHIBITED FROM CERTIFYING THAT
PERSON.  YOU ARE FAMILIAR WITH THE STATUTE? 

"A.  YES, I AM. 

"Q.  MR. KONIGSBERG, ARE YOU A COMMUNIST? 

"A.  MR. CHAIRMAN, I WOULD BE VERY GLAD TO ANSWER THAT QUESTION. 

"Q.  IF YOU WILL ANSWER THE QUESTION, I WOULD BE VERY HAPPY TO HAVE
IT. 

"A.  I WOULD BE VERY GLAD TO ANSWER IT IF THE CIRCUMSTANCES WERE
DIFFERENT.  THAT IS WHEN I AM FACED WITH A QUESTION OF THIS KIND OR
WHEN ANYONE ELSE IS FACED WITH A QUESTION OF THIS KIND TODAY WHAT HE IS
FACED WITH IS THE FACT THAT VARIOUS NAMELESS ACCUSERS OR INFORMERS, OR
CALL THEM WHAT YOU WILL, WHOM HE HAS NEVER HAD A CHANCE TO CONFRONT AND
CROSS-EXAMINE, HE IS PUT IN A POSITION OF ANSWERING THESE STATEMENTS OR
ACCUSATIONS OR SUSPICIONS, AND WITHOUT ANY OF THE PROTECTIONS THAT
ORDINARILY EXIST IN SUCH A SITUATION, AND I DON'T THINK THAT I CAN
PLACE MYSELF IN THAT POSITION OF HAVING TO ANSWER SOMETHING OUT IN THE
VOID, SOME STATEMENT.  I KNOW THESE STATEMENTS HAVE BEEN MADE
OBVIOUSLY.  I AM NOT PRETENDING TO BE SHOCKED OR NAIVE ABOUT THIS.  I
CAN SAY VERY DEFINITELY I DID NOT, I DON'T, I NEVER WOULD ADVOCATE THE
OVERTHROW OF THE GOVERNMENT BY FORCE OR VIOLENCE CLEARLY AND
UNEQUIVOCABLY, BUT TO ANSWER A SPECIFIC QUESTION OF THAT KIND, WHETHER
I AM A MEMBER OF THIS PARTY, THAT PARTY OR THE COMMUNIST PARTY, THAT
PUTS ME IN THE POSITION, WHATEVER THE TRUTH IS, WHETHER I WAS OR WASN'T
YOU WOULD GET A DOZEN INFORMERS WHO WOULD SAY THE OPPOSITE, AND AS
INDICATED BY AN EDITORIAL JUST TWO OR THREE DAYS AGO IN THE DAILY NEWS
QUESTIONING SERIOUSLY WHY THE WORD OF THESE INFORMERS, THESE TURN-COATS
IS ACCEPTED UNQUESTIONABLY AS AGAINST THE WORD OF OTHER RESPONSIBLE
CITIZENS.  THEREFORE, MR. PRESTON, I DO NOT THINK THAT UNDER THESE
CIRCUMSTANCES, FIRST, YES, I UNDERSTAND THAT UNDER THE LAW AS IT IS
TODAY YOU MAY ASK ME SPECIFICALLY DO I ADVOCATE THE OVERTHROW OF THE
GOVERNMENT BY FORCE OR VIOLENCE.  I ANSWER SPECIFICALLY I DO NOT, I
NEVER DID OR NEVER WILL.  WHEN YOU GET INTO THE OTHER QUESTION OF
SPECIFIC VIEWS IN A POLITICAL PARTY, IT SEEMS TO ME ONLY THE FACT, THE
RIGHT OF POLITICAL OPINION IS PROTECTED UNDER THE FIRST AMENDMENT AND
IS BINDING ON THE STATES.  CERTAINLY ATTORNEYS OUGHT TO BE IN THE
LEADERSHIP OF THOSE WHO DEFEND THE RIGHT OF DIVERSE POLITICAL VIEWS.  I
THINK THE FIRST AMENDMENT IS IMPORTANT  ...  .  I ANSWER AGAIN ON THE
SPECIFIC QUESTION OF FORCE AND VIOLENCE, I DID NOT, I DON'T AND NEVER
WOULD ADVOCATE THE OVERTHROW OF THE GOVERNMENT BY FORCE OR VIOLENCE. 

"Q.  WHEN ANSWERING IT YOU DON'T INTEND TO GIVE US A SPECIFIC,
CATEGORICAL RESPONSIVE ANSWER? 

"A.  AS I SAID I WOULD BE VERY HAPPY TO IF WE MET OUT IN THE HALL.  I
WOULD BE GLAD TO ANSWER YOU, BUT YOU SEE UNDER THESE CIRCUMSTANCES,
THAT IS I AM SPEAKING NOW UNDER OATH AND I AM SPEAKING FOR THE RECORD,
I AM SPEAKING AGAINST IN A SENSE WHATEVER EVIDENCE THAT MAY BE IN THE
FILES - I SHOULDN'T DIGNIFY IT BY CALLING IT EVIDENCE; I SHOULD SAY
WHATEVER STATEMENTS MAY BE THERE FROM VARIOUS INFORMERS.  I HAVE TOLD
YOU ABOUT MY RECORD BOTH IN THE ARMY AND IN THE COMMUNITY.  I HAVE BEEN
ACTIVE POLITICALLY, I ADMIT IT.  I AM PROUD OF IT.  I WOULD BE HAPPY TO
DISCUSS IT.  THIS IS THE RECORD THAT I THINK SHOULD BE THE BASIS FOR
JUDGMENT, NOT THE RECORD OF SOME HYSTERICAL CHARACTERS THAT APPEARED
BEFORE THE TENNEY COMMITTEE OR ANY SUCH GROUP. 

"Q.  I AM NOT ASKING ANYONE ELSE.  I AM TRYING TO ASK YOU BECAUSE YOU
ARE THE ONE WHO IS SEEKING ADMISSION, THE PRIVILEGE OF PRACTICING LAW
IN THIS STATE.  THAT IS THE REASON I AM ASKING YOU THE QUESTION.  I
MADE THE QUESTION VERY BROAD, AND WHAT I WOULD LIKE YOU TO TELL US, IF
YOU WILL ANSWER THE QUESTION; NOW OF COURSE AS YOU WELL KNOW AND YOU
HAVE TOLD ME IN YOUR ANSWER UP TO THIS POINT, YOU DON'T HAVE TO ANSWER
THE QUESTION, OF COURSE YOU DON'T HAVE TO ANSWER THE QUESTION, BUT WE
FEEL THAT ON A MATTER OF THIS KIND, THIS KIND OF INFORMATION, WE HAVE A
JOB TO INQUIRE ABOUT YOUR CHARACTER.  THE STATUTE SAYS CHARACTER, IT
DOESN'T SAY REPUTATION.  THE ONLY WAY I CAN FIND OUT AND AID THIS
COMMITTEE IN FINDING OUT ABOUT YOUR CHARACTER IS TO ASK YOU THESE
QUESTIONS, NOT WHAT SOMEONE ELSE THINKS ABOUT YOU, YOUR REPUTATION. 
THAT IS THE REASON I HAVE ASKED THE QUESTION.  COULD YOU GIVE US A
CATEGORICAL ANSWER? 

"A.  I CAN ONLY GIVE YOU THE ANSWER I HAVE GIVEN YOU, AND I WOULD BE
VERY HAPPY TO ANSWER THAT UNDER OTHER CIRCUMSTANCES." 

AT THIS POINT KONIGSBERG STATED THAT HIS REFUSALS TO ANSWER RESTED ON
RIGHTS OF "FREE OPINION, FREE SPEECH," AND THAT THE LEGAL PROFESSION
SHOULD BE THE CHAMPION OF "THE RIGHT TO DIVERSE POLITICAL OPINION."  HE
WAS THEN ASKED WHETHER HE HAD "EVER KNOWINGLY PARTICIPATED IN AN
ORGANIZATION WHICH HE THEN BELIEVED WAS SYMPATHETIC TO THE COMMUNISTIC
CAUSE," TO WHICH HE REPLIED THAT "I CAN'T SAY I KNOWINGLY DID THAT,
BECAUSE I DON'T THINK IT WOULD HAVE MADE A GREAT DEAL OF DIFFERENCE TO
ME IF I HAD KNOWN ONE WAY OR THE OTHER" IF THE ORGANIZATION'S
OBJECTIVES WERE WHAT HE BELIEVED IN, "SAY A BETTER SCHOOL BOARD OR
WHATEVER THE ISSUE MIGHT HAVE BEEN."  THEN FOLLOWED THIS:

"Q.  MR. KONIGSBERG, I ASSUME THAT YOU KNOW THAT YOUR NAME HAS BEEN
LISTED IN THE PUBLIC PRESS BY WITNESSES BEFORE THE CONGRESSIONAL UN
AMERICAN ACTIVITIES COMMITTEE. 

"A.  YES. 

"Q.  AND HAVE BEEN IDENTIFIED BY PERSONS WHO SAID THAT YOU WERE A
MEMBER OF THE COMMUNIST PARTY AT THE SAME TIME THEY WERE. 

"A.  I SAW THAT REPORT.  THAT IS THE SORT OF THING I WAS REFERRING TO
A MOMENT AGO WHEN I REFERRED TO THE VARIOUS ACCUSATIONS." 

NEXT THERE WAS DISCUSSION AS TO THE ATTITUDE OF THE ASSOCIATION OF
AMERICAN UNIVERSITIES WITH REFERENCE TO TEACHERS CLAIMING THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION: 

"MR. STERLING:  LET ME TRY TO CLARIFY IT AS I UNDERSTAND IT.  THIS
ASSOCIATION OF UNIVERSITIES TAKES THE POSITION THAT COMPLETE CANDOR ON
THE PART OF THE TEACHER WITH RESPECT TO HIS POLITICAL BELIEFS, AND IN
PARTICULAR WHETHER OR NOT HE SUBSCRIBES TO THE BELIEFS OF THE COMMUNIST
PARTY IS A PREREQUISITE TO CONTINUING IN THE TEACHING JOB.  HE DOESN'T
HAVE TO DISCLOSE WHETHER OR NOT HE IS A COMMUNIST OR IS SYMPATHETIC TO
THE COMMUNIST BELIEFS, BUT THAT IF HE DOESN'T ANSWER THOSE QUESTIONS
WITH COMPLETE CANDOR HE HAS LOST HIS RIGHT TO A POSITION IN THE
TEACHING COMMUNITY.  TRANSLATING THAT INTO TERMS OF AN ASSOCIATION OF
LAWYERS SUCH AS OUR STATE BAR OR ANY BAR ASSOCIATION, YOU ARE SEEKING
ADMISSION TO THE PROFESSION AND THAT WE AS YOUR PROSPECTIVE COLLEAGUES
HAVE A RIGHT TO EXPECT COMPLETE CANDOR FROM YOU ON THIS PARTICULAR
QUESTION, AND THAT IF YOU DON'T WISH TO BE COMPLETELY CANDID WITH US
THEN WE ARE JUSTIFIED IN SAYING YOU DON'T BELONG IN OUR PROFESSION. 
THAT I THINK IS THE STAND THAT THE AMERICAN UNIVERSITIES TOOK. 

"A.  I UNDERSTAND THAT.  I CAN ONLY SAY WHAT I SAID SEVERAL TIMES
ALREADY.  UNDER THOSE CIRCUMSTANCES THE CONSTITUTIONAL GUARANTEE OF
FREE SPEECH MEANS NOTHING, IF IT DOESN'T MEAN YOU CAN KEEP YOUR VIEWS
TO YOURSELF, AND CERTAINLY LAWYERS RECOGNIZE THAT AND SHOULD BE AMONG
THE FIRST TO DEFEND THAT RIGHT.  I THINK THE LEGAL PROFESSION,
PARTICULARLY THE LEADERS ON THE LEGAL PROFESSION, SHOULD BE THE FIRST
TO INSIST ON IT.  PUT ANOTHER WAY, OF WHAT MEANING IS ANY
CONSTITUTIONAL GUARANTEE IF IT BECOMES A CRIME TO INVOKE THAT
GUARANTEE?" 

THIS ANSWER WAS THEN ELABORATED BY THE PETITIONER AT SOME LENGTH,
AFTER WHICH THE RECORD CONTINUES AS FOLLOWS: 

"MR. STERLING:  IF YOU ACCEPT AS TRUE THE PREMISE THAT THE COMMUNIST
PARTY, AS IT IS EMBODIED IN THE PRESENT SOVIET UNION GOVERNMENT, HAS
FOR ITS OBJECTIVE THE OVERTHROW OF NOT ONLY THE GOVERNMENT OF THE
UNITED STATES BUT ANY OTHER NON-COMMUNIST GOVERNMENT, AND THAT THAT
OVERTHROW MAY BE ACCOMPLISHED EITHER FROM WITHIN BY A BLOODLESS
REVOLUTION OR IF NECESSARY BY FORCE, IF YOU ACCEPT THAT PREMISE THEN I
THINK THAT YOUR ARGUMENT ABOUT CONSTITUTIONAL RIGHTS OF FREE SPEECH AND
RIGHT TO HAVE YOUR OWN POLITICAL VIEWS AND SO ON GO BY THE BOARD
BECAUSE THEN IT SEEMS TO ME THAT WE ARE ASKING YOU NO MORE THAN WHETHER
OR NOT YOU BELONG TO OR BELIEVE IN THE PRINCIPLES OF SUCH AN
ORGANIZATION AS MAFIA, WHICH IS PRETTY GENERALLY, I THINK, REGARDED AS
ONE WHICH HAS OBJECTIVES THAT CAN BE ACCOMPLISHED ACCORDING TO THEIR
TENETS BY WHAT WE REGARD AS CRIMINAL ACTS.  NOW IF I ASKED YOU WHETHER
OR NOT YOU BELIEVED IN THE RIGHT TO MURDER YOU WOULD ANSWER ME NO, I
THINK, BUT AS I SAY THIS WHOLE BUSINESS SEEMS TO BE A TURN ON WHETHER
YOU ACCEPT THE PREMISE THAT THE COMMUNIST PARTY - I AM PARAPHRASING FOR
THE PURPOSE OF ILLUSTRATION - IF YOU ACCEPT THE PREMISE THAT THE
COMMUNIST PARTY BELIVES IN MURDER AND HAS THAT AS ITS OBJECTIVE THEN I
DON'T THINK YOU HAVE A RIGHT OR JUSTIFICATION TO REFUSE TO ANSWER THE
QUESTION OF WHETHER YOU BELONG TO THE COMMUNIST PARTY OR WHETHER YOU
BELIEVE IN ITS PRINCIPLES, YOU SEE. 

"A.  WELL I CAN'T ARGUE WITH YOU. 

"MR. STERLING:  WELL, YOU CAN SAY THAT YOU THINK MY PREMISE IS
WRONG.  YOU CAN SAY THE COMMUNIST PARTY AS CONSTITUTED DOES NOT BELIEVE
IN THE OVERTHROW, IS NOT TRYING TO AND DOES NOT HAVE AS ITS OBJECTIVE
THE OVERTHROW OF THE UNITED STATES BY ONE MEANS OR THE OTHER.  THEN I
SIMPLY HAVE TO DISAGREE WITH YOU BECAUSE IT SEEMS TO ME THAT IS THEIR
OBJECTIVE. 

"A.  WELL, ARE YOU SUGGESTING, MR. CHAIRMAN, THAT SINCE OF COURSE
THIS IS A CRITICAL PERIOD IN OUR COUNTRY'S HISTORY THAT IN THE FACE OF
SUCH THREATS AS YOU ARE BASING YOUR PREMISE ON THAT WE HAVE TO FOREGO
THEN THE USE OF THE CONSTITUTIONAL PRIVILEGES OR THE PROTECTION OF THE
CONSTITUTION, IS THAT WHAT YOUR PROPOSAL IS?  I WOULD LIKE TO
UNDERSTAND YOUR ARGUMENT. 

"MR. STERLING:  NO, AS I SAY YOU DON'T FEEL THERE IS ANY QUESTION OF
CONSTITUTIONAL PRIVILEGE WHEN IN A PROCEEDING SUCH AS THIS WHERE WE ARE
CHARGED WITH DETERMINING THE MORAL QUALIFICATIONS OF AN APPLICANT IN
THE PROFESSION, YOU DON'T FEEL THAT THE CONSTITUTIONAL PRIVILEGE IS
HURT IF I ASK YOU IF YOU BELIEVED IN MURDER? 

"A.  NO. 

"MR. STERLING:  YOU WILL ANSWER THAT UNHESITATINGLY, 'NO, I DON'T
BELIEVE IN MURDER.'  SO I SAY THAT MOST OF US NOW ACCEPT AS TRUE THE
PREMISE THAT THE COMMUNIST PARTY AS WE KNOW IT AND AS EMBODIED IN THE
RUSSIAN GOVERNMENT, THE PRESENT SOVIET UNION GOVERNMENT, DOES HAVE AS
ITS OBJECTIVE WORLD DOMINATION BY THE COMMUNIST PARTY.  SO WE ACCEPT
THAT PREMISE.  THEREFORE IT SEEMS TO US THAT WE HAVE THE RIGHT TO ASK
THE QUESTION OF APPLICANTS FOR ADMISSION TO THE BAR, BECAUSE OUR
STATUTE AS WE POINTED OUT SAYS THAT YOU ARE NOT QUALIFIED IF YOU DO
BELIEVE IN OVERTHROWING OR ADVOCATE THE OVERTHROW OF THE UNITED STATES
BY FORCE OR VIOLENCE. 

"A.  I AM ANSWERING SPECIFICALLY IN TERMS OF THAT STATUTE TOO THAT I
DO NOT.  THAT IS THE QUESTION YOU ARE ASKING ME SPECIFICALLY.  I AM
ANSWERING I NEVER DID, I DO NOT AND I NEVER WOULD ADVOCATE THE
OVERTHROW OF THE GOVERNMENT BY FORCE OR VIOLENCE.  I DO BELIEVE LIKE
LEADERS LIKE JEFFERSON PEOPLE SHOULD HAVE THE RIGHT THROUGH DISCUSSION,
BALLOT, THE MINORITY VIEW BECOMES THE MAJORITY VIEW, THAT CHANGES LIKE
THAT ARE SOUGHT THROUGH THE BALLOT BOX BUT NEVER THROUGH FORCE AND
VIOLENCE.  THAT I DO NOT BELIEVE.  I THINK MY WHOLE EXPERIENCE HAS
SHOWN THAT.  I DON'T KNOW HOW MORE DIRECT THAT CAN BE, AND THE ONLY
REASON AS I SAID BEFORE THAT I DON'T SPECIFICALLY ANSWER THE QUESTION,
'ARE YOU A MEMBER OF THIS POLITICAL PARTY?'  IS BECAUSE OF THE
SITUATION ANYONE IS IN WHO IS FACED WITH ACCUSATIONS AS INDICATED BY
THE NEWSPAPER REPORT, ACCUSATIONS BY PEOPLE WHO I THINK ARE GRADUALLY
BEING DISCREDITED BY MANY SOURCES, WHEN YOU DON'T KNOW WHO IT IS WHO IS
ACCUSING YOU, YOU DON'T KNOW ON WHAT EVIDENCE, ANONYMOUS FACES, YOU
NEVER HAVE A CHANCE TO CROSS EXAMINE THEM, HOW CAN ANYONE BE PUT IN
THAT POSITION?  WHAT CAN YOU FIGHT EXCEPT WIND-MILLS AND AIR IN SUCH A
SITUATION.  THE DIRECT QUESTION, 'DO YOU BELIEVE IN FORCE AND
VIOLENCE?'  I ANSWERED THAT. 

"MR. BLACK:  IT STILL PUZZLES ME A LITTLE TO SEE WHY IT IS THAT YOU
THINK YOU ARE PREJUDICING YOUR OWN POSITION BY TAKING A POSITION ON
THAT IRRESPECTIVE OF WHETHER THERE IS ANY OTHER EVIDENCE IN THE FILE OR
NOT. 

"A.  BECAUSE VERY PRACTICALLY THIS AS YOU KNOW HAS HAPPENED BEFORE. 
IN THE THEORY OF TODAY IT IS THE WORDS OF THESE INFORMERS THAT IS
ACCEPTED ABOVE THE WORDS OF ANYONE ELSE. 

"MR. BLACK:  HOW DO YOU KNOW? 

"A.  THE NEWSPAPER REPORT SAYS SO.  ISN'T THAT THE REPORT YOU WERE
REFERRING TO WHERE I WAS NAMED BEFORE THE UN-AMERICAN ACTIVITIES
COMMITTEE? 

"MR. PRESTON:  YES, BUT THAT DOESN'T ANSWER THE QUESTION. 

"MR. BLACK:  HOW DO YOU ASSUME THIS COMMITTEE ACCEPTS THE HEARSAY
REPORT AGAINST YOUR DIRECT TESTIMONY? 

"A.  I AM NOT ASSUMING THAT.  I DIDN'T MEAN TO GIVE THAT
IMPLICATION.  WHAT I AM SAYING IS THAT WHERE ON ONE SIDE WE HAVE THESE
HEARSAY REPORTS AND NAMELESS INFORMERS, AND I DON'T NEED TO GO INTO A
DISCUSSION OF HOW WILLING THEY ARE TO SELL THEIR EVIDENCE, IF IT IS
EVIDENCE, WHEN THERE IS THE POSSIBILITY OF THEIR WORD BEING PLACED
AGAINST MY WORD OR ANYONE IN MY POSITION, AND BECAUSE IN VIEW OF THE
HYSTERIA TODAY THEIR WORD IS ACCEPTED.  ALL IT HAS TO DO IS APPEAR IN
THE PAPER AND YOU ARE DISCREDITED.  WASN'T IT TWO OR THREE WEEKS AGO IN
SAN FRANCISCO A WOMAN WON AN AMOUNT IN A SUIT FOR BEING CALLED A 'RED,'
A TEACHER, WHEN IT IS PRIMA FACIE - LIBEL, WHATEVER THE CASE WAS.  THEN
IT BECOMES NOT ONLY A BASIC MATTER OF PRINCIPLE ON THE FIRST AMENDMENT
BUT A MATTER OF PROTECTING YOURSELF IN A LEGAL SITUATION, BECAUSE THIS
IS AN OFFICIAL BODY.  I AM NOT TALKING TO A GROUP OF PEOPLE LIKE I
WOULD BE TALKING TO ON THE STREET. 

"MR. STERLING:  YOU ARE AFRAID IF YOU ANSWER THE QUESTION AS TO
MEMBERSHIP IN THE COMMUNIST PARTY IN THE NEGATIVE AND SAY, 'NO, I AM
NOT A MEMBER AND I NEVER HAVE BEEN,' ASSUMING YOU MADE THAT ANSWER, YOU
ARE AFRAID THAT WE COULD FIND HALF A DOZEN PEOPLE WHO WOULD SAY THAT
YOU WERE AND HAD BEEN, AND THEREFORE IF YOU WERE ON A PERJURY TRIAL AND
THE JURY BELIEVED THEM AND NOT YOU, YOU COMMITTED PERJURY. 

"A.  I AM SAYING NO MATTER WHAT ANSWER I GAVE WHETHER I WAS OR
WASN'T, UNDOUBTEDLY THERE WOULD BE SEVERAL WHOM YOU COULD GET TO SAY
THE OPPOSITE, AND AS I SAID BEFORE  ...  . 

"MR. STERLING:  SUBJECTING YOU TO A PERJURY CHARGE? 

"A.  YES.  AS I SAID BEFORE IF YOU WANT TO ASK ME OUTSIDE IN THE HALL
I WILL TELL YOU, BUT IN VIEW OF THESE CIRCUMSTANCES WHERE YOU JUST HAVE
NO RIGHT, YOU HAVE NO OPPORTUNITY RATHER, TO DEFEND YOURSELF AGAINST
THESE PEOPLE, I DON'T THINK THAT IS FAIR PLAY.  I DON'T THINK THAT IS
JUSTICE.  I DON'T THINK IT IS WHAT THE AMERICAN DEMOCRATIC SYSTEM
TEACHES." 

AT THIS POINT KONIGSBERG TESTIFIED THAT HE DID NOT RECALL KNOWING A
MRS. BENNETT (FORMERLY MRS. JUDSON), THE SUBCOMMITTEE'S NEXT WITNESS,
THE FOLLOWING OCCURRING JUST BEFORE SHE TESTIFIED: 

"MR. PRESTON:  IS THERE ANY FURTHER STATEMENT YOU WISH TO MAKE, MR.
KONIGSBERG? 

"A.  BY THE WITNESS:  I CAN'T THINK OF ANYTHING I COULD ADD TO WHAT I
SAID UNLESS THERE IS SOME SPECIFIC POINT YOU WANT ME TO ENLARGE ON. 

"MR. PRESTON:  I ASSUME, OF COURSE, IF I ASK YOU THE QUESTION AS TO
IF YOU WERE EVER A MEMBER OF THE COMMUNIST PARTY YOU WOULD GIVE ME
SUBSTANTIALLY THE SAME ANSWER. 

"A.  YES, I THINK I WOULD. 

"MR. PRESTON:  YOU OBSERVED, I ASSUMED, MR. KONIGSBERG, I DIDN'T ASK
YOU IN THE FIRST INSTANCE IF YOU WERE A MEMBER OF THE COMMUNIST PARTY. 
I ASKED YOU IF YOU WERE A COMMUNIST.  I RECOGNIZE THERE IS A
PHILOSOPHICAL COMMUNIST.  I MADE MY FIRST QUESTION VERY BROAD TO
INCLUDE THAT. 

"A.  I UNDERSTOOD YOU TO SAY A MEMBER OF THE COMMUNIST PARTY. 

"MR. PRESTON:  WOULD YOU ANSWER BE ANY DIFFERENT? 

"A.  I THOUGHT YOU SAID A MEMBER OF THE COMMUNIST PARTY. 

"MR. PRESTON:  I DELIBERATELY DID NOT.  THE FIRST QUESTION WE
DISCUSSED AT LENGTH IS, 'ARE YOU A COMMUNIST?' 

"A.  I WILL SAY NO, DEFINITELY NO. THE ONLY THING I WOULD DESCRIBE
MYSELF VERY SIMPLY AS ONE WHO HAS READ A LOT, STUDIED A LOT, BECAUSE AS
A TEACHER OF HISTORY AND POLITICAL EDUCATION IN THE ARMY I BELIEVE
STRONGLY IN THE FUNDAMENTAL CONCEPTS OF OUR DEMOCRATIC SYSTEM. 

"MR. PRESTON:  YOUR ANSWER THAT YOU GAVE WAS DIRECTED TO THE
QUESTION, 'ARE YOU A MEMBER OF THE COMMUNIST PARTY?' 

"A.  YES, AND SOLELY TO THAT.  IF YOU WANT A CATEGORICAL ANSWER TO
'ARE YOU A COMMUNIST?'  THE ANSWER IS NO. 

"MR. PRESTON:  YOU GAVE US THAT. 

"MR. STERLING:  THAT IS YOUR ANSWER. 

"A.  BY THE WITNESS:  NO. 

"MR. BLACK:  WOULD YOU CARE TO STATE WHETHER YOU HAVE EVER BEEN A
COMMUNIST? 

"A.  DO YOU MEAN BY THAT AS HE IS MAKING THE DISTINCTION
PHILOSOPHICALLY OR A MEMBER OF THE COMMUNIST PARTY? 

"MR. BLACK:  I MEAN IN THE SAME SENSE YOU HAVE JUST ANSWERED THAT YOU
ARE NOT NOW A COMMUNIST. 

"A.  I WOULD SAY MY THINKING HAS ONLY BEEN WHAT I DESCRIBED A MOMENT
AGO AS BEING BASED ON THE ELEMENTARY CONCEPTS OF THE AMERICAN
DEMOCRACY, ASSUMING THAT YOU MEAN DO I THINK LIKE A COMMUNIST; THAT IS
ASSUMING WE HAVE SOME COMMON UNDERSTANDING WHAT YOU MEAN BY THAT TERM. 

"MR. STERLING:  WE ARE NOT TALKING NOW ABOUT A MEMBERSHIP IN ANY
PARTY. 

"A.  YES, PHILOSOPHICAL VIEWS." 

MRS. BENNETT, AN EX-COMMUNIST PARTY MEMBER, THEN TESTIFIED, IN THE
PRESENCE OF KONIGSBERG, THAT KONIGSBERG HAD ATTENDED IN 1941 MEETINGS
OF THE PARTY UNIT OF WHICH SHE HAD BEEN A MEMBER. 

THE NEXT HEARING WAS ON DECEMBER 9, 1953, WHICH WAS ATTENDED BY
KONIGSBERG'S COUNSEL, A MR. MOSK.  THIS HEARING WAS DEVOTED IN PART TO
THE CROSS-EXAMINATION OF MRS. BENNETT BY MR. MOSK, THE NET OF WHICH WAS
THAT MRS. BENNETT ADMITTED THAT SHE RECOGNIZED KONIGSBERG WHEN SHE
FIRST CAME TO THE EARLIER HEARING ONLY AFTER NOT SEEING ANYONE ELSE IN
THE ROOM WITH WHOM SHE WAS FAMILIAR.  AFTER GENERAL COLLOQUY AS TO SOME
OF THE PETITIONER'S WRITINGS, THE QUESTIONING RETURNED TO KONIGSBERG'S
REFUSAL TO ANSWER QUESTIONS CONCERNING HIS ALLEGED MEMBERSHIP IN THE
COMMUNIST PARTY, THIS TIME WITH PARTICULAR REFERENCE AS TO HOW
PETITIONER RECONCILED HIS FIRST AMENDMENT CLAIM WITH HIS WILLINGNESS TO
ANSWER IDEOLOGICAL QUESTIONS, BUT NOT QUESTIONS AS TO WHETHER HE HAD
EVER BEEN A MEMBER OF THE COMMUNIST PARTY.  THE RECORD CONTINUES: 

"MR. FRESTON:  MAY I ASK A QUESTION OF COUNSEL? 

"MR. STERLING:  YES. 

"MR. FRESTON:  ONE OF THE THINGS THAT WAS BOTHERING ME, MR. MOSK, IS
THE GENERAL ANSWER WE HAVE RECEIVED TO THE QUESTION CONCERNING PRESENT
AND PAST COMMUNIST AFFILIATION, AND I RECOGNIZE THE OBJECTION THAT
COUNSEL RAISES UNDER THE FIRST AMENDMENT. 

"MR. MOSK:  THE WITNESS. 

"MR. FRESTON:  THE WITNESS HAS RAISED.  THE THING THAT TROUBLES ME IS
WE HAVE AN AFFIRMATIVE DUTY UNDER THE STATUTE TO CERTIFY AS TO THIS
APPLICANT'S GOOD MORAL CHARACTER.  WE HAVE ENDEAVORED TO POINT OUT TO
HIM THAT THE BURDEN OF SHOWING THAT CHARACTER IS UPON HIM.  IT APPEARED
TO ME THAT HE WASN'T BEING QUITE FORTHRIGHT WITH US IN NOT GIVING US AN
ANSWER TO THOSE QUESTIONS.  HE STATED IN EFFECT HIS REASON, AT LEAST AS
I UNDERSTOOD IT, THAT HE DID NOT WANT TO ANSWER THE QUESTIONS BECAUSE
HE MIGHT SOMETIME BE ACCUSED OF OR PROSECUTED FOR PERJURY.  NOW, THAT
IS THE RATIONALE AS I REMEMBER IT, AND FRANKLY I AM LEFT IN A RATHER
CONFUSED STATE.  AS A MEMBER OF THIS COMMITTEE I HAVE TO TAKE AN
AFFIRMATIVE ACT OF CERTIFICATION AS TO A GOOD MORAL CHARACTER.  I
WONDER IF YOU COULD PERHAPS ENLIGHTEN ME OR HELP CLARIFY THE SITUATION
SO PERHAPS MAYBE I MIGHT UNDERSTAND IT BETTER. 

"MR. BLACK:  MAY I INTERPOSE ANOTHER QUESTION DIRECTED TO THE SAME
POINT, AND YOU CAN ANSWER THEM AT ONE AND THE SAME TIME.  JUST TO MAKE
SURE THAT I UNDERSTAND THE WITNESS' POSITION, AT THE LAST HEARING - MR.
KONIGSBERG'S POSITION - AS I UNDERSTOOD HE WAS PERFECTLY WILLING TO
DENY CATEGORICALLY HE IS A COMMUNIST AND TOOK THAT POSITION, AM I RIGHT
ON THAT? 

"THE WITNESS:  I SAID PHILOSOPHICAL COMMUNIST. 

"MR. BLACK:  IT SEEMS TO ME THAT QUESTION WE WOULDN'T HAVE A RIGHT TO
ASK YOU UNDER YOUR ARGUMENT, BUT THAT WE WOULD VERY DEFINITELY HAVE A
RIGHT TO ASK YOU WHETHER YOU ARE NOW A MEMBER OF THE COMMUNIST PARTY AS
IT IS COMMONLY UNDERSTOOD.  NOW, AM I RIGHT ON THAT THAT YOU STILL TAKE
THE POSITION THAT THERE IS NOT OBJECTION TO YOUR ANSWERING US
CATEGORICALLY THAT YOU ARE NOT NOW A COMMUNIST, NAMELY THAT YOU DON'T
BELIEVE IN THE PHILOSOPHICAL DOCTRINES OF COMMUNISM, GENERALLY
SPEAKING, THAT IS A MATTER OF BELIEF? 

"THE WITNESS:  I THINK I UNDERSTAND YOUR QUESTION. 

"MR. BLACK:  BUT YOU DO TAKE THE POSITION THAT WE DO NOT HAVE THE
RIGHT OR YOU HAVE NO OBLIGATION TO ANSWER THE QUESTION, 'ARE YOU NOW A
MEMBER OF THE COMMUNIST PARTY?'  AND THAT YOU REFUSE TO ANSWER.  I AM
NOT TRYING TO ARGUE.  I JUST WANT TO BE SURE I UNDERSTAND YOUR
POSITION.  AM I CORRECT IN THAT? 

"MR. MOSK:  EITHER WAY.  THE FIRST QUESTION WAS ADDRESSED TO ME  ...
.  WE ARE ENDEAVORING TO ADDRESS OURSELVES TO THAT ISSUE WHICH WE FEEL
MOST PERTINENT THAT IS 'WHAT HAS MR. KONIGSBERG DONE AS AN INDIVIDUAL
WITH RELATION TO THE PEOPLE WITH WHOM HE HAS DEALT, THE OCCUPATIONS AND
PROFESSIONS THAT HE HAS FOLLOWED, WHAT HAS HE DONE TO SHOW
AFFIRMATIVELY THAT HE IS OF GOOD MORAL CHARACTER AND WOULD BE A GOOD
MEMBER OF THE BAR?' 

"NOW, AS I UNDERSTOOD MR. KONIGSBERG'S POSITION IT IS HIS FEELING
THAT ONE OF THE MATTERS OF PRINCIPLE ON WHICH HE HAS ALWAYS STOOD IS
THE PRINCIPLE THAT ONE MAY NOT INQUIRE AS TO A PERSON'S BELIEF,
RELIGIOUS, POLITICAL OR OTHERWISE, AND THAT BY ANSWERING SUCH QUESTIONS
AS THEY ARE BEING ASKED THROUGHOUT THE COUNTRY IN THESE DAYS, AND IN
ALL SORTS OF PLACES AND UNDER ALL SORTS OF CIRCUMSTANCES, AS I
UNDERSTAND MR. KONIGSBERG'S POSITION THAT BY ANSWERING SUCH A QUESTION
HE IS IN EFFECT GIVING WAY TO AND GIVING GROUND ON THE PRINCIPLE THAT
ONE MAY NOT BE ASKED THESE THINGS, AND THAT BY HIS FAILURE TO ANSWER HE
IS NEITHER AFFIRMING NOR DENYING. 

"NOW AS TO THE SECOND QUESTION, WHICH I THINK IS MOST PERTINENT AND
CERTAINLY STRUCK ME AT THE MOMENT WHEN I READ THROUGH THE TRANSCRIPT
FOR THE FIRST TIME, I WAS STRUCK BY EXACTLY THAT SAME QUESTION, AND I
ASKED MR. KONIGSBERG ABOUT IT, AND I THINK THAT PERHAPS HE SHOULD
ANSWER THIS HIMSELF, BUT WE DID DISCUSS THIS VERY MATTER, AND I KNOW
THAT HIS POSITION IS NOW THAT IF YOU WERE TO ASK THE SAME QUESTION
TODAY HE FEELS THAT IT IS A QUESTION HE SHOULD NOT HAVE ANSWERED, AND
THAT BY WAY OF PRINCIPLE IN COMING UNPREPARED HE DID NOT THINK THROUGH
THE PRINCIPLE TO THAT EXTENT.  I THINK I AM ANSWERING CORRECTLY. 

"THE WITNESS:  THAT IS EXACTLY WHAT I TOLD COUNSEL.  AS YOU ARE AWARE
I CAME IN WITHOUT COUNSEL, WITHOUT ANY PREPARATION, WITHOUT KNOWING
EXACTLY WHAT I MIGHT BE ASKED.  I DID HAVE AN INDICATION SINCE I HAD
INFORMED THE COMMITTEE, I APPEARED BEFORE THE TENNEY COMMITTEE, THAT I
MIGHT BE ASKED ABOUT THAT.  I CAME PREPARED WITH NOTHING.  IN THE HEAT
OR IN THE TENSION OF A MEETING OF THIS KIND, AS YOU ARE AWARE, VERY
OFTEN ONE WILL SAY THINGS THAT ONE REGRETS LATER OR WOULD HAVE SAID
LATER.  IF I WERE ASKED THAT TODAY I THINK MY ANSWER WOULD BE THE SAME
AS TO THE OTHER QUESTION AS TO WHETHER I AM OR AM NOT A MEMBER OF THE
COMMUNIST PARTY, OR WHETHER I EVER WAS. 

"MR. BLACK:  I MIGHT SAY WITHOUT EXPRESSING MY OWN VIEW ON THE THING
THAT I THINK IT MUST BE OBVIOUS TO YOU AT LEAST UNDER POPULAR
CONCEPTION THERE IS A DISTINCTION BETWEEN WHAT A MAN BELIEVES IN A
DOCTRINAIRE'S SENSE, WHICH I THINK EVERYBODY AGREES WHO AT LEAST TRIES
TO FOLLOW AMERICAN PRINCIPLES IS SACRED GROUND AS TO HIS INDIVIDUAL
CONCEPTS.  THE BELIEF OF THE DOCTRINES ON THE ONE SIDE, AND AT LEAST IN
POPULAR VIEW, AFFILIATION WITH A PARTY THAT HAS ITS POLICIES DOMINATED
BY THE SOVIET UNION IS QUITE A DIFFERENT CONCEPTION, AND THAT THE
ARGUMENT AT LEAST IS THAT INQUIRY GOES TO THE VERY ESSENCE OF A MAN'S
LOYALTY TO THE COUNTRY AND HAS NOTHING TO DO WITH HIS INDIVIDUAL
BELIEFS IN THE MATTER OF RELIGION OR POLITICAL PHILOSOPHY OR A CODE OF
ETHICS, AND THAT IS THE DISTINCTION THAT WE ARE TRYING TO GET AT HERE. 

"THE WITNESS:  I THINK YOU ARE QUITE RIGHT, AND THE POSITION YOU TAKE
IS QUITE CORRECT, AND I CONFESS THAT I WAS IN ERROR AT THE TIME AGAIN
DUE TO THE TENSION OF THE MOMENT, AND AS I WAS GOING TO SAY I DON'T
THINK MR. FRESTON'S RECOLLECTION IS CORRECT.  I DID NOT SAY THAT I WAS
GIVING THE KIND OF ANSWER, WAS GIVING OR REFUSING TO ANSWER BECAUSE I
WAS AFRAID OF A PERJURY CHARGE, AS I RECALL.  THAT IS NOT THE BASIS OF
REFUSAL OR THE TYPE OF ANSWER I HAVE GIVEN.  THE REASON THAT PERJURY
DISCUSSION CAME UP, AS I RECALL NOW - I HAVEN'T BEEN THINKING ABOUT IT
WAS IN CONNECTION WITH THE NATURE OF THE HEARING WHERE A PERSON DOES
NOT HAVE THE OPPORTUNITY TO CROSS EXAMINE AND CONFRONT WITNESSES OR SEE
DOCUMENTS OR THINGS OF THAT NATURE, AND IT SO HAPPENS IN THE CASE OF
OWEN LATTIMORE, WHO FACED A PERJURY CHARGE, EVEN THOUGH HE DENIED A
HALF DOZEN WAYS ANY ASSOCIATION WITH SUBVERSIVE ELEMENTS - I AM
RECALLING FROM MEMORY - IT HAD TO DO WITH WHETHER HE EXPRESSED A
CERTAIN OPINION.  HOW IS A MAN TO REMEMBER WHAT OPINIONS HE EXPRESSED. 
HIS APPEAL IS PENDING AT THE MOMENT FOR HIS CONVICTION OF PERJURY.  IT
IS ONLY WITH REFERENCE TO THAT SITUATION THAT I MENTIONED OR COMMENTED
UPON THE ELEMENT OF PERJURY, BECAUSE THAT HAS NOTHING TO DO WITH THE
BASIS FOR MY GIVING THE KIND OF ANSWER I AM GIVING TO THE QUESTION AS
TO MY POLITICAL AFFILIATION, NONE WHATSOEVER.  YOU CORRECT ME ON THE
RECORD IF I AM WRONG.  THAT IS MY RECOLLECTION OF THAT DISCUSSION.  AT
LEAST I WOULD LIKE TO SAY FOR THE RECORD THAT HAS NOTHING TO DO WITH
THE TYPE OF ANSWER I HAVE GIVEN.    "MR. WRIGHT:  I WOULD LIKE TO ASK A
QUESTION THAT PERHAPS IN SOME STAGE OF THIS PROCEEDING YOU MIGHT
ENLIGHTEN AT LEAST THIS MEMBER OF THE COMMITTEE ON, WHETHER YOU
CONSIDER INQUIRY INTO PRESENT MEMBERSHIP IN THE COMMUNIST PARTY AS AT
ALL RELEVANT IN THE INQUIRIES OF THIS COMMITTEE AS TO MORAL CHARACTER? 
IN OTHER WORDS, IS IT A RELEVANT FACTOR?  DOES IT HAVE ANY BEARING?  IS
IT A PROPER SCOPE OF INQUIRY? 

"MR. MOSK:  I THINK YOU HAVE TO DRAW THIS DISTINCTION.  IT MAY BE
UNDER SOME CIRCUMSTANCES THE COMMITTEE WOULD FEEL THAT IT WOULD BE A
TYPE OF INFORMATION THAT IT WOULD LIKE TO HAVE TO REACH ITS CONCLUSION,
AND TO THAT EXTENT PERHAPS IT MAY BE CONSIDERED RELEVANT, BUT MANY
RELEVANT MATTERS ARE NOT INQUIRED INTO IN LEGAL PROCEEDINGS BECAUSE FOR
OTHER REASONS THOSE MATTERS ARE NOT COMPETENT TESTIMONY.  AND IT IS THE
POSITION OF MR. KONIGSBERG HERE THAT INQUIRIES INTO THE REALM OF HIS
POLITICAL, RELIGIOUS OR OTHER BELIEFS ARE MATTERS THAT ARE PROTECTED
UNDER THE FIRST AMENDMENT TO THE CONSTITUTION, AND THEREFORE WHILE IT
MAY BE INFORMATION WHICH THE COMMITTEE WOULD FEEL IT WOULD LIKE TO HAVE
IT IS A FIELD IN WHICH THE COMMITTEE MAY NOT INQUIRE BY MR.
KONIGSBERG'S POSITION, AND I THINK THEREFORE PERHAPS I AM ANSWERING
YOUR QUESTION YES AND NO, BUT I THINK I MAKE MY POINT CLEAR AS TO WHAT
POSITION MR. KONIGSBERG TAKES. 

"MR. WRIGHT:  HAVING FELT THAT WE WOULD LIKE THE INFORMATION AND
BEING DENIED, NOW I WON'T ARGUE WITH YOU THAT BEING DENIED THAT WE HAVE
NO WAY OF COMPELLING IT, BUT ARE WE THEREFORE FACED WITH GOING
FORWARD? 

"MR. MOSK:  I THINK THAT ALSO IS A FAIR QUESTION, AND THAT IS WHY WE
ARE APPROACHING THE HEARING IN THE MANNER IN WHICH WE DO  ...  . 

" ...  I COULD, I KNOW, BRING RESPONSIBLE SOCIAL WORKERS, OTHER
LAWYERS, PERSONS AT THE UNIVERSITIES WITH WHOM HE HAS DEALT, ALL OF
WHOM ARE PREPARED TO COME AND SAY THAT THEY HAVE KNOWN HIM IN THESE
VARIOUS CAPACITIES, AND THAT ON THE BASIS OF THE THINGS THAT HE HAS
DONE HIMSELF, NOT WHAT SOMEONE ELSE HAS DONE, BUT WHAT HE, RAPHAEL
KONIGSBERG, HAS DONE THAT HE IS OF GOOD MORAL CHARACTER TO BECOME A
MEMBER OF THE LEGAL PROFESSION, AND THESE ARE THINGS THAT AS I SAY WE
WILL SUBMIT AFFIRMATIVELY, AND IT SEEMS TO ME THAT THIS IS THE
AFFIRMATIVE ANSWER TO WHAT I CAN WELL UNDERSTAND THE COMMITTEE FEELS IS
A VOID WHICH MR. KONIGSBERG, FOR REASONS OF PRINCIPLES HE DOES NOT FEEL
HE WANT TO FILL, BUT I THINK THAT EVEN THERE ONE MUST ALWAYS HAVE
RESPECT FOR PEOPLE WHO AT RECOGNIZING THE DANGER TO HIM IN STANDING ON
HIS PRINCIPLE IS STILL PREPARED TO DO THAT IN ORDER TO CARRY OUT THINGS
THAT HE BELIEVES IN SO FIRMLY. 

"MR. WRIGHT:  I COMMEND HIS MORAL PRINCIPLE, LET ME SAY, BUT PERHAPS
HAVE A LITTLE DOUBT FOR HIS JUDGMENT. 

"MR. MOSK:  IF I MAY COMMENT ON THAT ALSO I THINK THAT CERTAINLY  ...
. 

"MR. WRIGHT:  HE IS MAKING IT EXTREMELY HARD FOR THE COMMITTEE." 

THE THIRD, AND LAST, HEARING BEFORE THE SUBCOMMITTEE OCCURRED ON
JANUARY 27, 1954.  AT THIS TIME THE LETTERS FROM CHARACTER WITNESSES
WERE PRESENTED, AND THERE ENSUED GENERAL COLLOQUY AS TO THE SCOPE OF A
MEMORANDUM TO BE FILED BY MR. MOSK.  THE RECORD SHOWS THE FOLLOWING AS
TO THE SUBCOMMITTEE'S CONCERN OVER KONIGSBERG'S REFUSAL TO ANSWER: 

"MR. WRIGHT:  THANK YOU, MR. MOSK.  I WAS WONDERING WHETHER OR NOT
YOU IN THE COURSE OF YOUR MEMORANDUM YOU HAD ADDRESSED YOURSELF AT ALL
TO THE PROBLEM OF THE DISINCLINATION OF THE APPLICANT TO RESPOND TO
QUESTIONS PROPOSED BY THE COMMITTEE. 

"MR. MOSK:  I HAVE ADDRESSED MYSELF TO THAT.  THE MEMORANDUM,
HOWEVER, IS NOT LENGTHY AND IF YOU WISH I WOULD LIKE TO SAY JUST A
BRIEF WORD IN ADDITION THEN ON THAT POINT. 

"MR. WRIGHT:  THAT IS ONE THING THAT FRANKLY BOTHERS ME THAT WE
DISCUSSED IN OUR PREVIOUS HEARING. 

"MR. MOSK:  I CAN UNDERSTAND WHY THAT IS A MATTER THAT DOES BOTHER
YOU.  I THINK THAT I INDICATED AT THE PREVIOUS HEARING BY ANALOGY ONE
OF THE ANSWERS THAT I FEEL IS PERTINENT TO THIS.  I INDICATED, AND I
FEEL THAT IN EVERY JUDICIAL PROCEEDING AND EVERY LEGAL PROCEEDING THERE
ARE MANY MATTERS THAT THE TRIBUNAL WOULD LIKE WELL TO KNOW TO ASSIST IT
IN REACHING ITS CONCLUSION. 

     *         *     *         *         * 

"NOW, IT IS IMPLICIT IN WHAT I HAVE SAID UP UNTIL NOW THAT MATTERS OF
THE POLITICAL, ECONOMIC AND SOCIAL NATURE, MATTERS OF THE MIND, CANNOT
BECOME THE STANDARDS UPON WHICH THE DECISION AS TO WHETHER AN APPLICANT
IS OF GOOD MORAL CHARACTER CAN BE PREDICATED.  THERE ARE BASIC
PRINCIPLES AS TO WHETHER THE COMMITTEE OR ANY OTHER TRIBUNAL MAY
INQUIRE INTO MATTERS OF THE MIND AND THINKING. 

"NOW, MR. KONIGSBERG IS OBVIOUSLY, AS INDICATED BY MANY OF THESE
LETTERS, AND HAS ALWAYS BEEN A MAN OF GREAT PRINCIPLE, AND I FEEL THAT
THE COMMITTEE, SINCE IT IS OUR POSITION THAT IT MAY NOT INQUIRE INTO
THESE FIELDS MUST NOT MAKE ITS DECISION BASED ON MR. KONIGSBERG'S
PRINCIPAL REFUSAL TO ANSWER QUESTIONS IN A FIELD IN WHICH THE COMMITTEE
MAY NOT INQUIRE.  AND THIS FUNDAMENTALLY IS OUR ANSWER THAT THESE ARE
MATTERS WHICH CAN HAVE NO BEARING ON HIS MORAL FITNESS TO PRACTICE LAW,
AND SINCE THEY CANNOT I THINK IT THEN BECOMES EVEN A GREATER INDICATION
OF THE EXTREME PRINCIPLES UPON WHICH THIS MAN STANDS, AND AN EVEN
GREATER INDICATION THAT AS A LAWYER HE WILL BE A CREDIT TO THE LEGAL
PROFESSION." 

THE SUBCOMMITTEE HAVING REPORTED UNFAVORABLY, A HEARING TO REVIEW ITS
RECOMMENDATION WAS HELD BEFORE THE FULL STATE BAR COMMITTEE ON MARCH
13, 1954, AT WHICH KONIGSBERG READ A PREPARED STATEMENT, FOLLOWING
WHICH THE RECORD SHOWS THE FOLLOWING: 

"MR. FULLER:  WHAT ORGANIZATIONS DO YOU PRESENTLY BELONG TO? 

"MR. MOSK:  TO WHICH I OBJECT ON THE GROUNDS THAT THIS IS A VIOLATION
OF THE WITNESS'S RIGHTS UNDER THE FIRST AMENDMENT OF THE CONSTITUTION. 

"MR. FULLER:  YOU MEAN TO SAY THAT HE SHOULDN'T TELL US WHETHER HE
BELONGS TO THE ELKS OR THE MASONS OR THINGS OF THAT SORT? 

"MR. MOSK:  THAT WOULD BE MY POSITION. 

"MR. FULLER:  WE CAN'T DETERMINE ANY ORGANIZATION HE BELONGS TO? HE
DOESN'T HAVE TO ANSWER AT ALL? 

"MR. MOSK:  THAT WOULD BE MY POSITION THAT HIS BELIEFS AND
ASSOCIATIONS ARE NOT WITHIN THE SCOPE OF THIS HEARING. 

"MR. FULLER:  IT DOES NOT NECESSARILY RELATE TO BELIEFS.  WE ALL KNOW
MANY ORGANIZATIONS ARE NOT BASED ON BELIEFS.  I THINK WE ARE ENTITLED
TO KNOW WHO HE ASSOCIATES WITH. 

"MR. KONIGSBERG:  I RESPECTFULLY SAY THAT YOU ARE NOT ENTITLED TO
KNOW MY ASSOCIATIONS AND ANY PERSON MAY REFUSE TO ANSWER ON THE BASIS
OF THE RIGHTS OF A CITIZEN UNDER THE FIRST AMENDMENT WHICH I HAVE
PREVIOUSLY REFERRED TO IN MY TESTIMONY. 

     *         *         *         *         * 

"MR. KONIGSBERG:  MAY I ASK THIS QUESTION, MR. CHAIRMAN:  IS IT THE
COMMITTEE'S POSITION (AND I WOULD SINCERELY LIKE TO KNOW) THAT IT HAS
THE POWER TO ASK SUCH A QUESTION AND THAT QUESTIONS RELATING TO
OPINIONS DO HAVE A BEARING ON THE APPLICANT'S MORAL CHARACTER? 

"MR. FULLER:  I DON'T WANT TO PUT IT ON THAT BASIS.  IT IS MY
POSITION, NOT NECESSARILY THE ENTIRE COMMITTEE'S POSITION, THAT WE HAVE
A RATHER GENERAL SCOPE OF INQUIRY TO DETERMINE WHETHER AN APPLICANT
TELLS THE TRUTH, FOR ONE THING.  I THINK THAT IS A FACTOR IN
DETERMINING WHETHER OR NOT HE IS MORALLY QUALIFIED.  HE MAY STATE THAT
HE IS NOT NOW A COMMUNIST, IF HE HAS BEEN A COMMUNIST IN THE PAST, AND
IF WE BELIEVE HE IS TELLING THE TRUTH, THAT WILL HAVE A BEARING ON OUR
DETERMINATION.  I THINK WE HAVE THE RIGHT TO TEST THE VERACITY OF THE
APPLICANT TO THE EXTENT THAT IF HE DENIES THAT, I AM INFLUENCED IN THE
FINAL CONCLUSION I WILL COME TO, THAT I HAVEN'T DETERMINED YET.  I DO
THINK THAT THE APPLICANT WHO WISHES TO AFFORD US THE FACILITIES FOR
DETERMINING HIS MORAL CHARACTER TO THE UTMOST, SHOULD PERMIT US TO TEST
HIS VERACITY. 

"MR. KONIGSBERG:  MR. CHAIRMAN, IN ALL SINCERITY I HAVE ATTEMPTED TO
SHOW IN MY INITIAL ANALYSIS THAT UNDER SECTION 6064.1, THAT I THINK
SETS THE LIMIT TO ANY INQUIRY THAT ANY BODY OF EXAMINERS HAS.  ONCE YOU
ASK 'DO YOU NOW?,' DOES THAT PERSON ADVOCATE THE OVERTHROW BY FORCE,
VIOLENCE, OR OTHER UNCONSTITUTIONAL MEANS, AND HE ANSWERS, AS I HAVE
ANSWERED, THAT HE DOES NOT, YOU CANNOT ASK ANY QUESTIONS ABOUT HIS
OPINIONS.  YOU ARE NOT EMPOWERED TO ASK ANY QUESTIONS.  THERE IS SOME
QUESTION AS I POINTED OUT IN MY STATEMENT WHETHER THIS IS
CONSTITUTIONAL EVEN TO ALLOW IT TO THIS EXTENT. 

"MR. FULLER:  DO I UNDERSTAND THAT IT IS YOUR POSITION, AND I THINK I
UNDERSTAND YOUR POSITION, THAT WE SHOULD NOT GO AHEAD AND FIND OUT
WHATEVER INFORMATION WE CAN OBTAIN IN ORDER TO MAKE THE BEST DECISION? 

"MR. KONIGSBERG:  I MAKE THIS POINT WHICH I DID NOT MAKE BEFORE THAT
I DON'T THINK CONSTITUTIONAL SUCH ACTION, TO DRAW INFERENCES OF THE
TRUTH OR FALSITY OF ANY STATEMENTS BASED ON THE POSITION (WHETHER OF
THE FIRST OR ANY OTHER AMENDMENT) WHICH THE APPLICANT TAKES.  FOR THE
BAR TO MAINTAIN THE POSITION, AS THE CHAIRMAN IS DOING, THAT IT DOES
HAVE THE RIGHT TO ASK ABOUT MY OPINIONS (AT LEAST AS HE IS DOING THIS
AFTERNOON), AS I POINTED OUT THESE OPINIONS AND BELIEFS WHICH HAVE BEEN
EXPRESSED COINCIDE WITH THOSE OF PROMINENT LEADERS OF THE BAR, WHICH
THEY ARE EXPRESSING TODAY  ... .  I AM WONDERING IF THAT IS THE
POSITION THE COMMITTEE WISHES TO TAKE. 

"MR. FULLER:  THERE IS NO POSITION OF THE COMMITTEE.  I AM ONLY ONE
MEMBER.  WE ARE CONDUCTING AN IMPARTIAL EXAMINATION. 

    *         *         *         *         * 

"A LADY BY THE NAME OF BENNETT TESTIFIED HERE.  YOU HEARD HER
TESTIMONY.  I THERE ANY PART OF THAT TESTIMONY YOU WISH TO DENY? 

"MR. KONIGSBERG:  WELL, AGAIN, MR. CHAIRMAN, THAT IS THE SAME
QUESTION.  THAT IS A QUESTION RELATING TO OPINIONS, BELIEFS, POLITICAL
AFFILIATIONS. 

"MR. FULLER:  IT HAS NOTHING TO DO WITH BELIEFS. 

"MR. KONIGSBERG:  IT CERTAINLY IS RELATED TO POLITICAL ORGANIZATIONS,
POLITICAL ACTIVITY, HOWEVER YOU CHOOSE TO DESCRIBE IT. 

"MR. FULLER:  DO YOU WANT TO READ IT AGAIN? 

"MR. KONIGSBERG:  I RECALL IT. 

"MR. FULLER:  DO YOU WISH TO DENY ANY PART? 

"MR. KONIGSBERG:  I WISH TO SAY THAT ANY QUESTIONS RELATING TO SUCH
POLITICAL AFFILIATION, WHICH THE TESTIMONY DEALT WITH  ...  . 

"MR. FULLER:  YOU REFUSE TO AFFIRM OR DENY HER TESTIMONY? 

"MR. KONIGSBERG:  THE COMMITTEE IS NOT EMPOWERED TO ASK WITH REGARD
TO POLITICAL AFFILIATIONS OR THAT TYPE  ...  . 

"MR. FULLER:  I AM CALLING YOUR ATTENTION TO THE FACT PART OF IT IS
NOT CONNECTED WITH POLITICAL BELIEFS OR ASSOCIATIONS. 

"MR. KONIGSBERG:  WHICH PART? 

"MR. FULLER:  YOU ARE FREE TO READ IT. 

"MR. KONIGSBERG:  IF YOU WISH, I SHALL BE GLAD TO. 

"MR. FULLER:  IF YOU WANT YOU MAY EITHER AFFIRM OR DENY ANYTHING IF
YOU NEED TO DO THAT.  WE WANT TO AFFORD YOU THE PRIVILEGE.  (WITNESS
READ THE TESTIMONY REFERRED TO.) 

"MR. KONIGSBERG:  MR. CHAIRMAN, I THINK I WOULD RECALL ALL THE
QUESTIONS RELATING TO ME.  SHE ANSWERED A NUMBER OF QUESTIONS NOT
RELATING TO ME.  ALL RELATING TO ME ARE BASED ON A MATTER OF POLITICAL
AFFILIATION OR OPINION AND POLITICAL ASSOCIATION AND I THINK THAT IS
AMPLY COVERED UNDER THE PROTECTION OF THE FIRST AMENDMENT AS I REFERRED
TO A MOMENT AGO.  THE COMMITTEE'S RIGHTS TO INQUIRE ABOUT THIS MATTER
ARE LIMITED TO ONE, THE PRESENT PERSONAL ADVOCACY OF THE OVERTHROW BY
FORCE OR VIOLENCE OR OTHER MEANS AS SET FORTH IN 6064.1. 

     *  *         *         *         * 

"MR. O'DONNELL:  ARE YOU A MEMBER OF THE COMMUNIST PARTY NOW? 

"MR. KONIGSBERG:  HOW DOES THAT DIFFER FROM THE QUESTIONS ASKED
BEFORE? 

"MR. O'DONNELL:  I WOULD JUST LIKE YOU TO ANSWER IT. 

"MR. KONIGSBERG:  THE ANSWER IS THE SAME I WOULD GIVE.  THE COMMITTEE
IS NOT EMPOWERED TO INQUIRE ANY MORE THAN THEY MAY INQUIRE WHETHER I AM
AN ELK, A FREEMASON, A DEMOCRAT OR A REPUBLICAN.  IT MIGHT BECOME
INCRIMINATING TO BE A MEMBER OF THE DEMOCRATIC PARTY TODAY, LIKE SAYING
ALL DEMOCRATS ARE TRAITORS. 

"MR. O'DONNELL:  HAVE YOU EVER BEEN A MEMBER? 

"MR. KONIGSBERG:  I WOULD GIVE THE SAME ANSWER. 

"MR. O'DONNELL:  YOU REFUSE TO SAY WHETHER YOU NOW ARE? 

"MR. KONIGSBERG:  I REFUSE ON THE GROUND THAT THE COMMITTEE IS NOT
EMPOWERED TO QUESTION ANYONE ABOUT POLITICAL OPINIONS OR AFFILIATIONS,
WHETHER PAST AFFILIATIONS OR PRESENT ONES.  I SAY THIS CAN HAVE NO
BEARING ON MORAL QUALIFICATIONS TO PRACTICE LAW, UNLESS THE COMMITTEE
IS PREPARED, AS I SAID IN MY STATEMENT, TO TAKE THE POSITION THAT IT IS
NOW A CRIME IN CALIFORNIA TO HAVE OPINIONS DIFFERENT THAN GENERAL
POPULAR OPINIONS OR CONFORMING OPINIONS. 

"MR. FULLER:  OF COURSE, THE COMMITTEE TAKES THE POSITION IT IS DOING
SO AFFIRMATIVELY, WHEN IT GOES BEFORE THE SUPREME COURT AND STATES YOU
HAVE THE PROPER MORAL CHARACTER AND WE FEEL WE HAVE THE RIGHT TO
INQUIRE VERY DEEPLY INTO THAT BECAUSE IT IS AN AFFIRMATIVE OBLIGATION
ON OUR PART. 

"MR. KONIGSBERG:  I THINK, MR. CHAIRMAN, ON THAT POINT THE COURT HAS
SAID  ...  . 

"MR. FULLER:  WE MAY BE WRONG.  THE SUPREME COURT MAY TELL US
OTHERWISE BUT THAT IS THE WAY IT APPEARS AT THE MOMENT." 

FINALLY, THE COMMITTEE PUT TO KONIGSBERG THESE QUESTIONS: 

"MR. WHITMORE:  IT IS NOT YOUR CONTENTION, IS IT, MR. KONIGSBERG,
THAT THE ONLY BASIS WHICH THE COMMITTEE MAY RELY ON IN DETERMINING
WHETHER OR NOT IT CAN CERTIFY YOU UNDER THE PROVISIONS OF 6064.1 IS BY
ASKING YOU THE QUESTIONS AND GETTING A YES OR NO ANSWER.  IT IS NOT
YOUR POSITION THAT THAT IS THE EXTENT OF THE RIGHT OF THIS BODY IN
MAKING ITS DETERMINATION UNDER 6064.1?    "MR. KONIGSBERG:  IN ESSENCE,
THAT IS IT.  MY INTERPRETATION OF THAT CODE SECTION IS SIMPLY THAT IT
SETS THE LIMIT AS TO WHATEVER QUESTIONS RELATING TO OPINION - BECAUSE
THAT IS OBVIOUSLY A POLITICAL ISSUE - THERE MAY BE ASKED BY THE BAR
EXAMINERS.  IT SETS THE LIMIT AS I INTERPRET IT.  I MAY BE WRONG, AS I
THINK THE SUBCOMMITTEE IS WRONG; BECAUSE OF THE HISTORY OF THIS ACT AS
I HAVE RELATED IT THE COMMITTEE CAN ONLY ASK 'DO YOU NOW PERSONALLY
ADVOCATE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF
THIS STATE BY FORCE OR VIOLENCE OR OTHER UNCONSTITUTIONAL MEANS' AND IF
I SAY 'NO,' 'YES' OR WHATEVER IT MAY BE, THAT IS AS FAR AS YOU CAN GO;
THAT IS WITHOUT RAISING THE QUESTION ON THIS POINT (WHICH I DON'T THINK
IS PERTINENT) AS TO WHETHER THAT IS EVEN CONSTITUTIONAL UNDER THE FIRST
AMENDMENT. 

"MR. WHITMORE:  YOU ARE SAYING THAT THE COMMITTEE IS PRECLUDED UNDER
WITH RESPECT TO THAT PROBLEM? 

"MR. KONIGSBERG:  YES, I THINK SO.  I AM SAYING THEY CAN ONLY ASK DO
I ADVOCATE THE OVERTHROW BY FORCE OR VIOLENCE OR OTHER MEANS. 

"MR. WHITMORE:  YOU ARE CONTENDING THAT WE ARE BOUND BY YOUR ANSWER
OF YES OR NO WHICH YOU GIVE. 

"MR. KONIGSBERG:  YOU CAN DECIDE FOR YOURSELVES WHETHER I AM TELLING
THE TRUTH.  YOU CAN USE ANY MEANS OF DETERMINING THE TRUTH.  YOU DON'T
HAVE TO ACCEPT ANY INDIVIDUAL'S YES OR NO ANSWER AS THE TRUTH.  I THINK
THAT IS UNDERSTOOD. 

"MR. MAXFIELD:  DOESN'T YOUR ANSWER RIGHT THERE DEFEAT THE ONLY
PURPOSE IF WE CAN CROSS EXAMINE AS TO THE TRUTH OR FALSENESS OF THAT
STATEMENT?  WHY CAN'T  ...  . 

"MR. KONIGSBERG:  I DIDN'T SAY YOU COULD CROSS EXAMINE ME AS TO THE
TRUTHFULNESS.  THE QUESTION AS I UNDERSTAND IT WAS WHETHER THE
COMMITTEE COULDN'T CONSIDER OTHER THINGS, RECORDS, PAST ACTS. 

"MR. WHITMORE:  ACTS OR OMISSIONS. 

"MR. KONIGSBERG:  ANYTHING IN MY RECORD TO EVALUATE WHETHER I AM
TELLING THE TRUTH, CERTAINLY. 

"MR. MAXFIELD:  THE GENERAL PRINCIPLES OF CROSS EXAMINATION TESTING
THE VERACITY OF A STATEMENT, THOSE YOU KNOW UNDER THE RULES OF EVIDENCE
ARE PRETTY BROAD.  DO YOU DENY US THE RIGHT TO ASK THESE QUESTIONS FOR
THAT PURPOSE? 

"MR. KONIGSBERG:  AGAIN UNDER THE RULES OF EVIDENCE THERE MIGHT BE
MANY ITEMS OF HEARSAY, FACT OR WHATEVER IT MIGHT BE, WHICH THE COURT
WOULD LIKE TO KNOW BUT THE COURT PREVENTS THE PROSECUTION OR THE OTHER
SIDE FROM INTRODUCING BECAUSE OF A DEEPSEATED PUBLIC POLICY OR OTHER
EVIDENTIARY RULE OR THE FIRST AMENDMENT.  THE RULE OF SEARCH AND
SEIZURE IS SOMETHING ELSE OF THAT NATURE.  THE INFORMATION MIGHT BE
PERTINENT BUT THE COURT SAYS THAT THE RESULTS OF SUCH ACT, AS
ESTABLISHED OVER THE YEARS, MAY NOT BE ASKED OR INTRODUCED. 

"IT IS MY CONTENTION AS I TRIED TO MAKE CLEAR - (IT MIGHT BE
UNCONSTITUTIONAL, I AM NOT QUESTIONING THAT NOW) - IT MAY ONLY GO AS
FAR AS THIS LAW PERMITS YOU TO GO. THE HISTORY OF THAT ACT SHOWS THAT
THE LEGISLATURE TRIED TO DO OTHER THINGS BUT FAILED TO BECAUSE IT
FAILED OF PASSAGE.  AND A PERSON CAN BE ASKED (SUCH PEOPLE AS MYSELF)
'DO YOU?'  THEN THE COMMITTEE MUST DETERMINE AND EVALUATE AS TO THE
TRUTH BY WHAT IS IN THE INDIVIDUAL'S RECORD. 

"MR. MAXFIELD:  WE ARE NOT ENTITLED TO AN EVALUATION OF THAT TRUTH OR
IN AN EFFORT TO EVALUATE IT TO CROSS EXAMINE YOU WITH RESPECT TO
PRESENT OR PAST ASSOCIATIONS? 

"MR. KONIGSBERG:  THAT IS RIGHT.  THAT IS MY INTERPRETATION." 

ON FEBRUARY 8, 1954, THE STATE BAR COMMITTEE REFUSED TO CERTIFY
KONIGSBERG FOR ADMISSION, AND THE CALIFORNIA SUPREME COURT DENIED
REVIEW ON APRIL 20, 1955. 

                            III. 

SO ENDS THE STORY.  WHATEVER MIGHT BE THE CONCLUSIONS TO BE DRAWN
WERE WE SITTING AS STATE JUDGES, I AM UNABLE TO UNDERSTAND HOW ON THIS
RECORD IT CAN BE SAID THAT CALIFORNIA VIOLATED THE FEDERAL CONSTITUTION
BY REFUSING TO ADMIT PETITIONER TO THE BAR. 

THE MEMBERS OF THE COMMITTEE BEFORE WHOM THE PETITIONER APPEARED WERE
UNDER A STATUTORY DUTY TO INQUIRE INTO HIS QUALIFICATIONS FOR
ADMISSION.  AMONG THE MATTERS INTO WHICH THEY WERE OBLIGATED TO INQUIRE
WERE MORAL CHARACTER AND THE APPLICANT'S ADVOCACY OF FORCIBLE OVERTHROW
OF THE GOVERNMENT.  PETITIONER STATED READILY ENOUGH THAT HE DID NOT
ADVOCATE OVERTHROW OF GOVERNMENT BY FORCE, VIOLENCE, OR OTHER
UNCONSTITUTIONAL MEANS.  BUT ONCE THAT BASIC QUESTION WAS ANSWERED HE
TOOK THE POSITION THAT THE COMMITTEE'S AUTHORITY WAS EXHAUSTED; THAT IT
HAD NO POWER TO ASK HIM ABOUT THE FACTS UNDERLYING HIS CONCLUSORY
DENIAL OR TO TEST HIS RESPONSE BY CROSS-EXAMINATION.  THE COURT HOLDS
THAT THE STATE'S CONCLUSION - THAT AN APPLICANT WHO SO OBSTRUCTS THE
COMMITTEE HAS NOT MET HIS BURDEN OF PROOF IN ESTABLISHING HIS
QUALIFICATIONS OF GOOD MORAL CHARACTER AND NON-ADVOCACY OF FORCIBLE
OVERTHROW - VIOLATES THE FOURTEENTH AMENDMENT. 

I THINK THIS POSITION IS UNTENABLE.  THERE IS NO CONCEIVABLE REASON
WHY THE COMMITTEE SHOULD NOT ATTEMPT BY CROSS-EXAMINATION TO ASCERTAIN
WHETHER THE FACTS SQUARED WITH PETITIONER'S BARE ASSERTION THAT HE WAS
QUALIFIED FOR ADMISSION.  IT CAN SCARCELY BE CONTENDED THAT THE
QUESTIONS WERE IRRELEVANT TO THE MATTER UNDER INQUIRY, NAMELY, WHETHER
PETITIONER ADVOCATED FORCIBLE OVERTHROW OF THE GOVERNMENT.  AT LEAST IT
SEEMS APPARENT TO ME THAT COMMUNIST PARTY MEMBERSHIP IS RELEVANT TO THE
QUESTION OF FORCIBLE OVERTHROW.  IN FACT PETITIONER HIMSELF ADMITTED
THAT THE QUESTIONS WERE RELEVANT, RELYING ENTIRELY ON HIS FIRST
AMENDMENT PRIVILEGE.  (FN11)  YET THE COURT ASSUMES, FOR THE PURPOSES
OF THIS CASE, THAT THE QUESTIONS DID NOT INVADE AN AREA PRIVILEGED
UNDER THE FIRST AMENDMENT.  IN OTHER WORDS, WE HAVE HERE A REFUSAL TO
ANSWER RELEVANT AND UNPRIVILEGED QUESTIONS. 

WE ARE NOT DEALING WITH A CASE WHERE THE STATE EXCLUDES AN APPLICANT
FROM THE BAR BECAUSE OF BARE MEMBERSHIP, PAST OR PRESENT, IN THE
COMMUNIST PARTY.  THE SCHWARE CASE ATTESTS THAT THAT IS A WHOLLY
DIFFERENT QUESTION.  NOR ARE WE DEALING WITH A CASE WHERE AN APPLICANT
IS DENIED ADMISSION BECAUSE OF HIS POLITICAL VIEWS.  WE HAVE HERE A
CASE WHERE A STATE BAR COMMITTEE WAS PREVENTED BY AN APPLICANT FROM
DISCHARGING ITS STATUTORY RESPONSIBILITIES IN FURTHER INVESTIGATING THE
APPLICANT'S QUALIFICATIONS.  THE PETITIONER'S REFUSAL TO ANSWER
QUESTIONS IN ORDER TO DISPEL DOUBTS CONSCIENTIOUSLY ENTERTAINED BY THE
COMMITTEE AS TO HIS QUALIFICATIONS UNDER A VALID STATUTORY TEST CAN, IT
SEEMS TO ME, DERIVE NO SUPPORT FROM THE FOURTEENTH AMENDMENT. 

THE PRINCIPLE HERE INVOLVED IS SO SELF-EVIDENT THAT I SHOULD HAVE
THOUGHT IT WOULD BE ACCEPTED WITHOUT DISCUSSION.  CAN IT REALLY BE SAID
THAT A BAR-ADMISSIONS COMMITTEE COULD NOT REJECT AN APPLICANT BECAUSE
HE REFUSED TO REVEAL HIS PAST ADDRESSES, OR THE NAMES OF HIS FORMER
EMPLOYERS, OR HIS CRIMINAL RECORD?  AN APPLICANT MIGHT STATE WITH THE
UTMOST SINCERITY THAT HE BELIEVED THAT SUCH INFORMATION WAS NONE OF THE
COMMITTEE'S BUSINESS; YET IT MUST BE CLEAR THAT HIS APPLICATION COULD
BE REJECTED.  AND IN SUCH A CASE THE COMMITTEE WOULD NOT HAVE TO POINT
TO "EVIDENCE" ESTABLISHING EITHER THAT THE APPLICANT HAD BAD MORAL
CHARACTER OR THAT HE WAS ASSERTING THE CONSTITUTIONAL PRIVILEGE IN BAD
FAITH.  FOR THE APPLICANT IS THE MOVING PARTY, AND HIS FAILURE TO GO
FORWARD IS ITSELF SUFFICIENT TO SUPPORT DENIAL OF ADMISSION. 

FOR ME IT WOULD AT LEAST BE MORE UNDERSTANDABLE IF THE COURT WERE TO
HOLD THAT THE COMMITTEE'S QUESTIONS CALLED FOR MATTER PRIVILEGED UNDER
THE FIRST AND FOURTEENTH AMENDMENTS.  BUT THE COURT CAREFULLY AVOIDS
DOING SO.  IT SEEMS TO HOLD THAT THE QUESTION OF PRIVILEGE IS
IRRELEVANT AS LONG AS THE APPLICANT IS "IN GOOD FAITH" AND AS LONG AS
THERE IS OTHER MATERIAL IN THE RECORD WHICH THE COURT INTERPRETS AS
AFFIRMATIVELY ATTESTING TO HIS GOOD MORAL CHARACTER.  I CANNOT AGREE. 
IT IS NOT ONLY THAT WE, ON THE BASIS OF A BARE PRINTED RECORD AND WITH
NO OPPORTUNITY TO HEAR AND OBSERVE THE APPLICANT, ARE IN NO SUCH
POSITION AS THE STATE BAR COMMITTEE WAS TO DETERMINE WHETHER IN FACT
THE APPLICANT WAS SINCERE AND HAS A GOOD MORAL CHARACTER.  EVEN WERE WE
NOT SO DISADVANTAGED, TO MAKE SUCH A DETERMINATION IS NOT OUR FUNCTION
IN REVIEWING STATE JUDGMENTS UNDER THE CONSTITUTION.  MOREOVER,
RESOLUTION OF THIS FACTUAL QUESTION IS WHOLLY IRRELEVANT TO THE CASE
BEFORE US, SINCE IT SEEMS TO ME ALTOGETHER BEYOND QUESTION THAT A STATE
MAY REFUSE ADMISSION TO ITS BAR TO AN APPLICANT, NO MATTER HOW SINCERE,
WHO REFUSES TO ANSWER QUESTIONS WHICH ARE REASONABLY RELEVANT TO HIS
QUALIFICATIONS AND WHICH DO NOT INVADE A CONSTITUTIONALLY PRIVILEGED
AREA.  THE OPINION OF THE COURT DOES NOT REALLY QUESTION THIS; IT
SOLVES THE PROBLEM BY DENYING THAT IT EXISTS.  BUT WHAT THE COURT HAS
REALLY DONE, I THINK, IS SIMPLY TO IMPOSE ON CALIFORNIA ITS OWN NOTIONS
OF PUBLIC POLICY AND JUDGMENT.  FOR ME, TODAY'S DECISION REPRESENTS AN
UNACCEPTABLE INTRUSION INTO A MATTER OF STATE CONCERN. 

FOR THESE REASONS I DISSENT. 

FN1  SECTION 6060, CAL. BUS.  AND PROF. CODE (1937).  THE COURT DOES
SUGGEST THAT THIS STANDARD IS "UNUSUALLY AMBIGUOUS" AND THAT IT "CAN BE
DEFINED IN AN ALMOST UNLIMITED NUMBER OF WAYS FOR ANY DEFINITION WILL
NECESSARILY REFLECT THE ATTITUDES, EXPERIENCES, AND PREJUDICES OF THE
DEFINER."  I RESPECTFULLY SUGGEST THAT MAINTENANCE OF HIGH PROFESSIONAL
STANDARDS REQUIRES THAT A STATE BE ALLOWED TO GIVE THAT TERM ITS
BROADEST SCOPE. 

FN2  ID., SEC. 6064.1. 

FN3  SPEARS V. STATE BAR, 211 CAL. 183, 294 P. 697; IN RE WELLS, 174
CAL. 467, 163 P. 657.  ALL BUT 2 OF THE 48 STATES HAVE THIS PRACTICE
REQUIREMENT.  SEE FARLEY, ADMISSION OF ATTORNEYS FROM OTHER
JURISDICTIONS, IN SURVEY OF THE LEGAL PROFESSION, BAR EXAMINATIONS AND
REQUIREMENTS FOR ADMISSION TO THE BAR, 151, 159. 

FN4  THE COURT DOES SAY:  "PRIOR DECISIONS BY THIS COURT INDICATE
THAT HIS (KONIGSBERG'S) CLAIM THAT THE QUESTIONS WERE IMPROPER WAS NOT
FRIVOLOUS AND WE FIND NOTHING IN THE RECORD WHICH INDICATES THAT HIS
POSITION WAS NOT TAKEN IN GOOD FAITH."  THE RECORD AT LEAST GIVES ONE
PAUSE AS TO THE CORRECTNESS OF THE LATTER CONCLUSION.  SEE PP. 292, 298
299, INFRA. 

FN5  THE RECORD CONTAINS THE FOLLOWING EXCHANGE BETWEEN MR.
O'DONNELL, A MEMBER OF THE FULL STATE BAR COMMITTEE, AND MR. MOSK, THE
PETITIONER'S COUNSEL:  "MR. O'DONNELL:  THERE WAS SOME SUGGESTION THAT
THE SUBCOMMITTEE WAS NOT FAIR AT THE PREVIOUS HEARINGS.  MR. MOSK:  MAY
I INTERRUPT IMMEDIATELY.  THERE WAS NO INFERENCE IN ANY COMMENTS MADE
BY MR. KONIGSBERG OR MYSELF.  THEY WERE SOLELY DIRECTED TO THE DECISION
OF THE SUBCOMMITTEE AND OUR DISAGREEMENT WITH THE ULTIMATE RESULTS. 
THE COMMITTEE WAS ABSOLUTELY FAIR AND TREATED MR. KONIGSBERG AND MYSELF
WITH THE UTMOST DEGREE OF FAIRNESS AND IMPARTIALITY.  WE HAVE NO
COMPLAINTS ABOUT THE SUBCOMMITTEE." 

FN6  PERHAPS THE MOST PRECISE POSSIBLE FORMULATION OF THE QUESTION
BEFORE US IS WHETHER A STATE MAY ADOPT A RULE OF ADMINISTRATION TO THE
EFFECT THAT, IN CIRCUMSTANCES SUCH AS ARE DISCLOSED HERE, AN APPLICANT
WHO REFUSES TO SUPPLY INFORMATION RELEVANT TO HIS FITNESS MAY BE DEEMED
TO HAVE FAILED TO SUSTAIN THE BURDEN OF ESTABLISHING HIS
QUALIFICATIONS.  I HAVE NO DOUBT THAT SUCH A RULE IS CONSTITUTIONAL. 
CF. HAMMOND PACKING CO. V. ARKANSAS, 212 U.S. 322; 349-351; FED. RULES
CIV. PROC., 37(B). 

FN7  SEE THE ITALICIZED PORTIONS OF PP. 286, 287, 288, 289, 290, 295,
299, 300, 301, 303, 306, 307, 308, 309, INFRA. 

FN8  EVEN ON THIS BASIS I CONSIDER TODAY'S ACTION OF THE COURT
UNJUSTIFIED UPON THIS RECORD.  WHETHER CONSIDERED AS THE ADOPTION AND
APPLICATION OF A REASONABLE RULE OF ADMINISTRATION, OR AS THE DRAWING
OF AN ADVERSE INFERENCE OF FACT, THE COMMITTEE'S ACTION IN THIS CASE
WAS PROPER.  AS THE HAMMOND CASE SHOWS, A STATE MAY TREAT A REFUSAL TO
SUPPLY RELEVANT INFORMATION AS ESTABLISHING FACTS AGAINST THE REFUSING
PARTY EVEN THOUGH HE DOES NOT HAVE THE BURDEN OF PROOF.  A FORTIORI, A
STATE NEED NOT GIVE AFFIRMATIVE RELIEF TO ONE WHO REFUSES TO SUPPLY
EVIDENCE NEEDED TO SUPPORT HIS OWN CLAIM.  CF. MOORE'S FEDERAL RULES
AND OFFICIAL FORMS (1956) 163-165, TAKING THE POSITION THAT JUDGMENT
SHOULD BE ENTERED AGAINST A PARTY TO CIVIL LITIGATION WHO REFUSES TO
ANSWER RELEVANT QUESTIONS, EVEN WHERE THE REFUSAL IS JUSTIFIED BY A
VALID PRIVILEGE.  IN THIS CASE THE COURT TAKES THE POSITION,
APPARENTLY, THAT REFUSAL TO SUPPLY RELEVANT INFORMATION CANNOT JUSTIFY
STATE ACTION IN A CIVIL PROCEEDING EVEN WHERE THE REFUSAL IS
UNPRIVILEGED, AND WHERE THE REFUSING PARTY IS A CLAIMANT UPON WHOM
RESTS THE BURDEN OF PROOF. 

FN9  THERE IS NO QUESTION HERE OF DRAWING AN UNFAVORABLE INFERENCE
FROM A CLAIM OF THE FIFTH AMENDMENT PRIVILEGE.  PETITIONER REPEATEDLY
DISCLAIMED ANY ASSERTION OF THAT PRIVILEGE. 

FN10  IN QUOTING FROM THE RECORD I HAVE ITALICIZED SOME PARTS TO GIVE
EMPHASIS TO THIS POINT. 

FN11  CF. GARNER V. BOARD OF PUBLIC WORKS, 341 U.S. 716, 720; AND SEE
PP. 299-300, 301, SUPRA.
..END :







OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL NO. 11, AFL-CIO, V. NATIONAL
LABOR RELATIONS BOARD 353 U.S. 313 


NO. 422.  ARGUED MARCH 28, 1957 - DECIDED MAY 6, 1957 - 98 U.S. APP.
D.C. 325, 235 F.2D 832, REVERSED AND REMANDED. 


1.  WHEN A LABOR ORGANIZATION ENGAGED IN MULTISTATE ACTIVITIES TAKES
ON THE ROLE AN EMPLOYER IT IS AN "EMPLOYER" WITHIN THE MEANING OF SEC.
2(2) OF THE NATIONAL LABOR RELATIONS ACT, THE ACT APPLIES TO ITS
OPERATIONS THE SAME AS IT WOULD TO THOSE OF ANY OTHER EMPLOYER, AND THE
NATIONAL LABOR RELATIONS BOARD HAS THE SAME JURISDICTION OVER LABOR
DISPUTES BETWEEN SUCH A LABOR ORGANIZATION AND ITS EMPLOYEES AS IT
WOULD HAVE IN THE CASE OF ANY OTHER EMPLOYER.  PP. 313-318. 

2.  IN THIS CASE, THE BOARD'S REFUSAL TO ASSERT JURISDICTION OVER
LABOR UNIONS, AS A CLASS, WHEN ACTING AS EMPLOYERS WAS CONTRARY TO THE
INTENT OF CONGRESS, WAS ARBITRARY, AND WAS BEYOND THE BOARD'S POWER. 
PP. 381-320. 

OFFICE EMPLOYES INTERNATIONAL UNION, LOCAL NO. 11, AFL-CIO, V. NATIONAL
LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE ATTEMPT OF THE PETITIONER, LOCAL 11 OF THE
OFFICE EMPLOYES INTERNATIONAL UNION, AFL-CIO, TO REPRESENT FOR
COLLECTIVE BARGAINING PURPOSES THE OFFICE-CLERICAL WORKERS EMPLOYED AT
THE TEAMSTERS BUILDING IN PORTLAND, OREGON.  THESE OFFICE-CLERICAL
EMPLOYEES WERE ENGAGED BY THE VARIOUS LOCAL UNIONS AND AFFILIATES OF
THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL.  LOCAL 11 FILED A SERIES OF UNFAIR LABOR
PRACTICE COMPLAINTS WITH RESPONDENT, NATIONAL LABOR RELATIONS BOARD,
CHARGING IN SUBSTANCE THAT THE TEAMSTER GROUP (FN1) HAD INTERFERED WITH
THE LOCAL'S EFFORT TO ORGANIZE THE OFFICE-CLERICAL WORKERS IN VIOLATION
OF SEC. 8(A) OF THE NATIONAL LABOR RELATIONS ACT.  (FN2)  THE PRIMARY
QUESTION IS WHETHER WITH RESPECT TO THEIR OWN EMPLOYEES LABOR
ORGANIZATIONS ARE "EMPLOYERS" WITHIN THE MEANING OF SEC. 2(2) OF THE
ACT.  (FN3)  SINCE WE DECIDE THIS QUESTION IN THE AFFIRMATIVE A
SUBSIDIARY QUESTION IS POSED:  WHETHER THE BOARD MAY, BY THE
APPLICATION OF GENERAL STANDARDS OF CLASSIFICATION, REFUSE TO ASSERT
ANY JURISDICTION OVER LABOR UNIONS AS A CLASS WHEN THEY ACT AS
EMPLOYERS.  THE BOARD HERE REFUSED TO ASSERT ANY JURISDICTION, AND THE
COMPLAINTS WERE DISMISSED.  113 N.L.R.B. 987.  THE COURT OF APPEALS
AFFIRMED, 98 U.S. APP. D.C. 335, 235 F.2D 832.  THE IMPORTANCE OF THE
JURISDICTIONAL QUESTIONS INVOLVED CAUSED US TO GRANT CERTIORARI IN THE
INTEREST OF THE PROPER ADMINISTRATION OF THE ACT.  352 U.S. 906.  WE
BELIEVE THE BOARD ERRED WHEN IT REFUSED TO TAKE JURISDICTION AND THUS,
IN EFFECT, ENGRAFTED A BLANKET EXEMPTION UPON THE ACT FOR ALL LABOR
UNIONS AS EMPLOYERS. 

WE SHALL NOT DEAL WITH THE MERITS OF THE UNFAIR LABOR PRACTICE
COMPLAINTS.  AS TO THE JURISDICTIONAL QUESTION, THE FINDINGS INDICATE
THAT THERE ARE 23 WORKERS EMPLOYED BY THE VARIOUS TEAMSTER
ORGANIZATIONS AT THE TEAMSTERS BUILDING.  THEY ARE PAID BY THE TEAMSTER
GROUP WHICH, EXCLUDING THE SECURITY PLAN OFFICE, FORMS "AN INTEGRAL
PART OF A MULTISTATE ENTERPRISE."  (FN4)  THE TRIAL EXAMINER CONCLUDED
THAT THE TEAMSTER GROUP CAME WITHIN THE TERM "EMPLOYER" UNDER SEC. 2(2)
OF THE ACT.  HE FURTHER FOUND THAT THEIR OPERATION WAS WELL WITHIN THE
MONETARY JURISDICTIONAL STANDARDS SET BY THE BOARD IN JONESBORO GRAIN
DRYING COOPERATIVE, 110 N.L.R.B. 481 (1954).  WHILE THE BOARD AGREED
WITH THE EXAMINER'S INTERPRETATION OF SEC. 2(2) AS TO THE TERM
"EMPLOYER," IT HELD, BY A DIVIDED VOTE, (FN5) THAT SINCE THE TEAMSTER
GROUP WAS COMPOSED OF UNIONS, ALL ENGAGED IN A NONPROFIT BUSINESS, THE
CRITERIA APPLIED TO OTHER NONPROFIT EMPLOYERS SHOULD GOVERN.  IT
FURTHER CONCLUDED "THAT LABOR ORGANIZATIONS, WHICH, WHEN ENGAGED IN
THEIR PRIMARY FUNCTION OF ADVANCING EMPLOYEE WELFARE, ARE INSTITUTIONS
UNTO THEMSELVES WITHIN THE FRAMEWORK OF THIS COUNTRY'S ECONOMIC
SCHEME," SHOULD NOT "BE MADE SUBJECT TO ANY OF THE STANDARDS ORIGINATED
FOR BUSINESS ORGANIZATIONS."   113 N.L.R.B., AT 991. 

                    I. 

WITH REGARD TO THE JURISDICTION OF THE BOARD THE WORDING OF SEC. 2(2)
OF THE ACT IS CLEAR AND UNAMBIGUOUS.  IT SAYS THAT THE TERM "EMPLOYER"
INCLUDES ANY LABOR ORGANIZATION "WHEN ACTING AS AN EMPLOYER."  IT
FOLLOWS THAT WHEN A LABOR UNION TAKES ON THE ROLE OF AN EMPLOYER THE
ACT APPLIES TO ITS OPERATIONS JUST AS IT WOULD TO ANY OTHER EMPLOYER. 
THE BOARD ITSELF RECOGNIZED THIS FACT AS EARLY AS 1951 IN AIR LINE
PILOTS ASSOCIATION, 97 N.L.R.B. 929.  THERE THE AIR LINE PILOTS
ASSOCIATION WAS FOUND TO BE AN EMPLOYER AND THE BOARD ORDERED THAT AN
ELECTION BE HELD TO DETERMINE THE WISHES OF THAT UNION'S OWN EMPLOYEES
IN REGARD TO THE SELECTION OF APPROPRIATE EMPLOYEE BARGAINING UNITS AND
A COLLECTIVE BARGAINING REPRESENTATIVE.  SECTION 9 OF THE ACT (FN6) WAS
THEREFORE APPLIED TO THE UNION AS AN EMPLOYER. 

THE LEGISLATIVE HISTORY OF SEC. 2(2) UNEQUIVOCALLY SUPPORTS OUR
CONCLUSION.  THE ACT, BEFORE ITS ADOPTION IN 1935, WAS CONSIDERED BY
BOTH THE 73D AND 74TH CONGRESSES.  (FN7)  ON EACH OCCASION THE BILL
WENT INTO COMMITTEE WITH LABOR UNIONS EXCLUDED FROM THE DEFINITION OF
AN EMPLOYER.  (FN8) TWICE THE SENATE COMMITTEE TO WHICH IT WAS REFERRED
AMENDED IT TO INCLUDE WITHIN THE CATEGORY OF AN EMPLOYER LABOR UNIONS
WHEN DEALING WITH THEIR OWN EMPLOYEES.  THE COMMITTEE INSERTED THE
WORDS "OTHER THAN WHEN ACTING AS AN EMPLOYER" AFTER THE EXCLUSION OF
LABOR ORGANIZATIONS FROM THE DEFINITION OF AN EMPLOYER.  THE SENATE
COMMITTEE ON EDUCATION AND LABOR TO WHICH THE BILL WAS REFERRED STATED
IN EXPLANATION OF THIS ALTERATION: 

"THE REASON FOR STATING THAT 'EMPLOYER' EXCLUDES 'ANY LABOR
ORGANIZATION, OTHER THAN WHEN ACTING AS AN EMPLOYER' IS THIS:  IN ONE
SENSE EVERY LABOR ORGANIZATION IS AN EMPLOYER, IT HIRES CLERKS,
SECRETARIES, AND THE LIKE.  IN ITS RELATIONS WITH ITS OWN EMPLOYEES, A
LABOR ORGANIZATION OUGHT TO BE TREATED AS AN EMPLOYER, AND THE BILL SO
PROVIDES."  S. REP. NO. 1184, 73D CONG., 2D SESS. 4. 

THE BILL WHICH BECAME THE ACT IN 1935, S. 1958, 74TH CONG., 1ST
SESS., CONTAINED THE IDENTICAL LANGUAGE SET FORTH IN ITALICS IN THE
ABOVE SENATE REPORT.  IT IS INESCAPABLE THAT THE BOARD HAS
JURISDICTION. 

       II. 

THE QUESTION REMAINS WHETHER THE BOARD MAY, NEVERTHELESS, REFUSE TO
ASSERT JURISDICTION OVER LABOR UNIONS, AS A CLASS, WHEN ACTING AS
EMPLOYERS.  THE BOARD IN THE FACE OF THE CLEAR EXPRESSION OF THE
CONGRESS TO THE CONTRARY HAS EXEMPTED LABOR UNIONS WHEN ACTING AS
EMPLOYERS FROM THE PROVISIONS OF THE ACT.  WE BELIEVE THAT SUCH AN
ARBITRARY BLANKET EXCLUSION OF UNION EMPLOYERS AS A CLASS IS BEYOND THE
POWER OF THE BOARD.  WHILE IT IS TRUE THAT "THE BOARD SOMETIMES
PROPERLY DECLINES TO ASSERT JURISDICTION STATING THAT THE POLICIES OF
THE ACT WOULD NOT BE EFFECTUATED BY ITS ASSERTION OF JURISDICTION IN
THAT CASE", LABOR BOARD V. DENVER BLDG. COUNCIL, 341 U.S. 675, 684
(1951), HERE THE BOARD RENOUNCES JURISDICTION OVER AN ENTIRE CATEGORY
OF EMPLOYERS, I.E., LABOR UNIONS, A MOST IMPORTANT SEGMENT OF AMERICAN
INDUSTRIAL LIFE.  IT REASONS THAT LABOR UNIONS ARE NONPROFIT
ORGANIZATIONS.  BUT UNTIL THIS CASE THE BOARD HAS NEVER RECOGNIZED SUCH
A BLANKET RULE OF EXCLUSION OVER ALL NONPROFIT EMPLOYERS.  IT HAS
DECLINED JURISDICTION ON AN AD HOC BASIS OVER RELIGIOUS, EDUCATIONAL,
AND ELEEMOSYNARY EMPLOYERS SUCH AS A UNIVERSITY LIBRARY, A SYMPHONY
ORCHESTRA, A RESEARCH LABORATORY, AND A CHURCH RADIO STATION.  (FN9)
WHEN THE ACT WAS AMENDED IN 1947 THE CONGRESS WAS AWARE OF THE BOARD'S
GENERAL PRACTICE OF EXCLUDING NONPROFIT ORGANIZATIONS FROM THE COVERAGE
OF THE ACT WHEN THESE ORGANIZATIONS WERE ENGAGED IN NONCOMMERCIAL
ACTIVITIES.  (FN10)  THE HOUSE OF REPRESENTATIVES ATTEMPTED TO GIVE
THESE EXCLUSIONS SPECIFIC LEGISLATIVE APPROVAL.  (FN11) HOWEVER, THE
SENATE DRAFT OF THE BILL EXCLUDED ONLY HOSPITAL EMPLOYERS FROM THE
ACT'S COVERAGE.  THE SENATE VERSION BECAME A PART OF THE ACT AND THE
LANGUAGE IS THE SAME AS THAT INVOLVED HERE.  THE JOINT COMMITTEE REPORT
ON WHICH THE FINAL ENACTMENT WAS BASED RECITED THAT THE ACTIVITIES OF
NONPROFIT EMPLOYERS OR THEIR EMPLOYEES HAD BEEN CONSIDERED AS COMING
WITHIN THE ACT ONLY "IN EXCEPTIONAL CIRCUMSTANCES AND IN CONNECTION
WITH PURELY COMMERCIAL ACTIVITIES."  (FN12)  TO PLACE LABOR UNIONS IN
THIS CATEGORY IS ENTIRELY UNREALISTIC FOR THE VERY NATURE OF THE
EXCLUDED NONPROFIT EMPLOYERS IS INHERENTLY DIFFERENT FROM THAT OF LABOR
UNIONS AND THE REASON FOR SUCH EXCLUSION HAS NO APPLICABILITY TO UNION
ACTIVITY SUCH AS THAT FOUND HERE.  THIS IS PARTICULARLY TRUE WHEN WE
CONSIDER THE POINTED LANGUAGE OF THE CONGRESS - REPEATED IN TAFT
HARTLEY IN 1947 - THAT UNIONS SHALL NOT BE EXCLUDED WHEN ACTING AS
EMPLOYERS.  AS THE DISSENTING JUDGE IN THE COURT OF APPEALS POINTS OUT,
"SEC.  2(2)'S STRINKINGLY PARTICULAR REFERENCE TO LABOR UNIONS SHARPLY
DIFFERENTIATES THEM FROM NON-PROFIT ORGANIZATIONS GENERALLY  ...  ." 
98 U.S. APP.  D.C., AT 337, 235 F.2D, AT 834.  WE DO NOT, THEREFORE,
BELIEVE THAT IT WAS WITHIN THE BOARD'S DISCRETION TO REMOVE UNIONS AS
EMPLOYERS FROM THE COVERAGE OF THE ACT AFTER CONGRESS HAD SPECIFICALLY
INCLUDED THEM THEREIN. 

IT IS TRUE THAT THE DOLLAR VOLUME JURISDICTIONAL STANDARDS ADOPTED BY
THE BOARD TO GOVERN ITS JURISDICTION, HOLLOW TREE LUMBER CO., 91
N.L.R.B. 635 (1950), EXCLUDE SMALL EMPLOYERS WHOSE BUSINESS DOES NOT
SUFFICIENTLY AFFECT COMMERCE.  (FN13)  BUT ITS EXERCISE OF DISCRETION
IN THE LOCAL FIELD DOES NOT GIVE THE BOARD THE POWER TO DECLINE
JURISDICTION OVER ALL EMPLOYERS IN OTHER FIELDS.  TO DO SO WOULD BUT
GRANT TO THE BOARD THE CONGRESSIONAL POWER OF REPEAL.  SEE ALSO GUSS V.
UTAH LABOR RELATIONS BOARD, 353 U.S. 1, 4 (1957), WHERE THE COURT
REFUSED TO PASS "UPON THE VALIDITY OF ANY PARTICULAR DECLINATION OF
JURISDICTION BY THE BOARD OR ANY SET OF JURISDICTIONAL STANDARDS." 

WE THEREFORE CONCLUDE THAT THE BOARD'S DECLINATION OF JURISDICTION
WAS CONTRARY TO THE INTENT OF CONGRESS, WAS ARBITRARY, AND WAS BEYOND
ITS POWER.  THE JUDGMENT IS THEREFORE REVERSED AND THE CASE IS REMANDED
TO THE COURT OF APPEALS FOR REMAND TO THE BOARD FOR FURTHER PROCEEDINGS
IN ACCORDANCE WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE COMPLAINTS WERE LEVELED AT THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS AND ITS REPRESENTATIVE, TEAMSTER LOCAL NO. 206, TEAMSTER
LOCAL NO. 223, THE TEAMSTERS' JOINT COUNCIL OF DRIVERS NO. 37, THE
OREGON TEAMSTERS' SECURITY PLAN OFFICE AND ITS ADMINISTRATOR, AND THE
TEAMSTERS BUILDING ASSOCIATION, INC. THE LATTER OWNS AND OPERATES AN
OFFICE BUILDING IN PORTLAND, OREGON.  THE OFFICE-CLERICAL EMPLOYEES
PETITIONER ATTEMPTED TO ORGANIZE PERFORM SERVICES FOR THE VARIOUS
TEAMSTER ORGANIZATIONS HERE INVOLVED.  THESE ORGANIZATIONS ARE THE
EXCLUSIVE TENANTS OF THE BUILDING. 

FN2  STAT. 140, 29 U.S.C. SEC. 158(A). 

FN3  61 STAT. 137, 29 U.S.C. SEC. 152(2), PROVIDES IN PERTINENT
PART: 

"SEC. 2.  WHEN USED IN THIS ACT: 

     *         *         *         *         * 

"(2)  THE TERM 'EMPLOYER' INCLUDES ANY PERSON ACTING AS AN AGENT OF
AN EMPLOYER, DIRECTLY OR INDIRECTLY, BUT SHALL NOT INCLUDE THE UNITED
STATES OR ANY WHOLLY OWNED GOVERNMENT CORPORATION, OR ANY FEDERAL
RESERVE BANK, OR ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
CORPORATION OR ASSOCIATION OPERATING A HOSPITAL, IF NO PART OF THE NET
EARNINGS INURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER OR
INDIVIDUAL, OR ANY PERSON SUBJECT TO THE RAILWAY LABOR ACT, AS AMENDED
FROM TIME TO TIME, OR ANY LABOR ORGANIZATION (OTHER THAN WHEN ACTING AS
AN EMPLOYER), OR ANYONE ACTING IN THE CAPACITY OF OFFICER OR AGENT OF
SUCH LABOR ORGANIZATION." 

FN4  THE ANNUAL PAYMENT OF INITIATION FEES AND TAXES FROM MEMBERS OF
THE TEAMSTERS UNION THROUGHOUT THE COUNTRY TO THE INTERNATIONAL'S
HEADQUARTERS IN WASHINGTON, D.C., AMOUNTS TO MORE THAN $6,000,000.  THE
MINIMUM MONETARY JURISDICTIONAL REQUIREMENT FOR A MULTISTATE ENTERPRISE
SUCH AS THE TEAMSTERS, PROMULGATED BY THE BOARD IN JONESBORO GRAIN
DRYING CORP., 110 N.L.R.B. 481 (1954), IS $250,000. 

THE SECURITY PLAN OFFICE ADMINISTERS 18 TRUST FUNDS AND RECEIVES
CONTRIBUTIONS PROVIDED FOR BY COLLECTIVE BARGAINING AGREEMENTS WITH
SOME 2,000 EMPLOYERS LOCATED IN FOUR WESTERN STATES.  SOME OF THE FUNDS
ARE INVESTED IN HEALTH AND WELFARE INSURANCE POLICIES ON WHICH OVER
$2,000,000 PER ANNUM IN PREMIUMS IS PAID TO A CALIFORNIA INSURANCE
CARRIER.  THE MINIMUM "DIRECT OUTFLOW" REQUIREMENT ESTABLISHED FOR
JURISDICTIONAL PURPOSES IN JONESBORO, SUPRA, IS $50,000.  THE
CALIFORNIA INSURANCE CARRIER REMITS 4% OF THE PREMIUMS TO THE SECURITY
PLAN OFFICE TO DEFRAY THE EXPENSE OF MAINTAINING AN OFFICE AND
PROCESSING AND PAYING CLAIMS UNDER THE HEALTH AND WELFARE PLAN.  THE
SECURITY PLAN OFFICE EMPLOYED AND PAID AT VARIOUS TIMES FROM FIVE TO
TEN OF THE PERSONNEL AT THE TEAMSTERS BUILDING. 

THE TEAMSTERS BUILDING ASSOCIATION, INC., IS, AS ARE THE OTHER
TEAMSTERS, A NONPROFIT CORPORATION.   ITS STOCK IS HELD BY SIX TEAMSTER
LOCALS INCLUDING LOCAL 206, ONE OF THE DEFENDANTS CHARGED WITH UNFAIR
LABOR PRACTICES IN THE COMPLAINT BEFORE THE BOARD.  THE ASSOCIATION'S
SOLE FUNCTION IS THE OWNERSHIP AND MAINTENANCE OF THE OFFICE BUILDING
IN PORTLAND WHICH IS OCCUPIED BY THE VARIOUS TEAMSTER ORGANIZATIONS. 

FN5  WE TREAT THE OPINION OF THE BOARD, AS DID THE COURT OF APPEALS,
AS BEING THAT OF MEMBERS FARMER AND PETERSON.  WHILE MR. MURDOCK'S
CONCURRENCE WAS ON THE "MORE LIMITED GROUNDS" THAT CONGRESS NEVER
INTENDED LABOR UNIONS TO BE EMPLOYERS WITH RESPECT TO THEIR OWN
EMPLOYEES WHEN ENGAGED IN UNION ACTIVITIES, HE CONCURRED IN THE
DISMISSAL BY MESSRS.  FARMER AND PETERSON.  THE OTHER TWO MEMBERS
DISSENTED. 

FN6  61 STAT. 143, 29 U.S.C. SEC. 159. 

FN7  S. 2926, 73D CONG., 2D SESS.; S. 1958, 74TH CONG., 1ST SESS. 

FN8  "(2)  THE TERM 'EMPLOYER'  ...  SHALL NOT INCLUDE  ...  ANY
LABOR ORGANIZATION  ...  ."  S. 2926, 73D CONG., 2D SESS. 3.  THIS
BILL, WHILE RECEIVING COMMITTEE APPROVAL AS ALTERED, WAS NOT ENACTED. 
WHEN SENATOR WAGNER RESUBMITTED THE BILL THE NEXT YEAR HE DID SO IN ITS
ORIGINAL FORM.    FN9  TRUSTEES OF COLUMBIA UNIVERSITY, 97 N.L.R.B. 424
(1951)(LIBRARY); PHILADELPHIA ORCHESTRA ASSOCIATION, 97 N.L.R.B. 548
(1951)(ORCHESTRA); ARMOUR RESEARCH FOUNDATION, 107 N.L.R.B. 1052
(1954)(LABORATORY); AND LUTHERAN CHURCH, MISSOURI SYNOD, 109 N.L.R.B.
859 (1954)(RADIO STATION). 

FN10  H.R. REP. NO. 510, 80TH CONG., 1ST SESS. 32. 

FN11  H.R. 3020, 80TH CONG., 1ST SESS. 4.  THE EXCLUSIONS WOULD HAVE
INCLUDED "ANY CORPORATION, COMMUNITY CHEST, FUND, OR FOUNDATION
ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE,
SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES, OR FOR THE PREVENTION OF
CRUELTY TO CHILDREN OR ANIMALS." 

FN12  SEE NOTE 10, SUPRA. 

FN13  SEE ALSO HOTEL ASSOCIATION OF ST. LOUIS, 92 N.L.R.B. 1388
(1951), WHERE THE BOARD DECLINED JURISDICTION OVER HOTEL EMPLOYERS. 
THE BOARD'S REFUSAL WAS BASED ON THE LOCAL CHARACTER OF THE HOTEL
BUSINESS.  THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HAS HELD
THAT SUCH REFUSAL IS NOT ARBITRARY IN HOTEL EMPLOYEES LOCAL NO. 255 V.
LEEDOM, 147 F. SUPP. 306 (1957). 

IN CHECKER CAB CO., 110 N.L.R.B. 683 (1954), THE BOARD DECLINED
JURISDICTION OF AN ACTION INVOLVING A PURELY LOCAL EMPLOYER OPERATING
TWO TAXICAB COMPANIES IN BATON ROUGE, LOUISIANA.  SEE ALSO YELLOW CAB
COMPANY OF CALIFORNIA, 90 N.L.R.B. 1884 (1950); SKYVIEW TRANSPORTATION
CO., 90 N.L.R.B. 1895 (1950); AND BROOKLYN CAB CORP., 90 N.L.R.B. 1898
(1950).  IN THESE CASES THE DECLINATION OF JURISDICTION WAS BASED ON
THE LOCAL CHARACTER OF THE OPERATIONS.  WE INDICATE NEITHER APPROVAL
NOR DISAPPROVAL OF THESE JURISDICTIONAL DECLINATIONS. 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
BURTON AND MR. JURTICE HARLAN JOIN, CONCURRING IN PART AND DISSENTING
IN PART. 

I AGREE THAT LABOR ORGANIZATIONS ARE "EMPLOYERS" UNDER SEC. 2(2) OF
THE ACT WITH RESPECT TO THEIR OWN EMPLOYEES.  I DISSENT, HOWEVER, FROM
THE COURT'S HOLDING THAT THE BOARD IS WITHOUT POWER TO DECLINE TO
ASSERT JURISDICTION OVER LABOR UNIONS AS A CLASS.  I AM OF THE VIEW
THAT THE BOARD HAS DISCRETIONARY AUTHORITY TO DECLINE TO DO SO WHEN THE
BOARD DETERMINES, FOR PROPER REASONS, THAT THE POLICIES OF THE ACT
WOULD NOT BE EFFECTUATED BY ITS ASSERTION OF JURISDICTION.  CF. LABOR
BOARD V. DENVER BLDG. COUNCIL, 341 U.S. 675, 684, AFF'D, 147 F. SUPP.
306; CHECKER CAB CO., 110 N.L.R.B. 683.   HOWEVER, THE DECLINATION TO
ASSERT JURISDICTION WAS RESTED UPON THE SAME GROUNDS RELIED UPON BY THE
BOARD IN DECLINING JURISDICTION OVER NONPROFIT ORGANIZATIONS.  THESE
GROUNDS, IN MY VIEW, ARE NOT PROPER REASONS FOR DECLINING TO ASSERT
JURISDICTION OVER LABOR ORGANIZATIONS.  I WOULD, THEREFORE, REMAND THE
CASE TO THE COURT OF APPEALS FOR REMAND TO THE BOARD FOR
RECONSIDERATION. 
..END :
















CIVIL AERONAUTICS BOARD V. HERMANN 353 U.S. 322 


NO. 540.  ARGUED APRIL 25, 1957 - DECIDED MAY 6, 1957 - 237 F.2D 359,
REVERSED AND REMANDED. 


1.  THE DISTRICT COURT'S ORDER IN THIS CASE DULY ENFORCED THE RIGHT OF
THE CIVIL AERONAUTICS BOARD TO CALL FOR DOCUMENTS RELEVANT TO THE
ISSUES IN A PROCEEDING BEFORE THE BOARD, WITH APPROPRIATE PROVISION FOR
ASSURING THE MINIMUM INTERFERENCE WITH THE CONDUCT OF RESPONDENT'S
BUSINESS.  PP. 322-324. 

2.  THE JUDGMENT OF THE COURT OF APPEALS, REVERSING THAT OF THE
DISTRICT COURT AND ESTABLISHING CERTAIN PROCEDURAL REQUIREMENTS FOR THE
BOARD TO FOLLOW BEFORE ISSUANCE OF AN ENFORCEMENT ORDER, IS REVERSED;
AND THE CAUSE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO
REINSTATE ITS ENFORCEMENT ORDER.  PP. 323-324. 

3.  THIS ENFORCEMENT ORDER LEAVES OPEN TO RESPONDENTS AMPLE
OPPORTUNITIES FOR OBJECTING, ON RELEVANT GROUNDS, TO THE ADMISSION INTO
EVIDENCE OF ANY PARTICULAR DOCUMENT.  P. 324. 

CIVIL AERONAUTICS BOARD V. HERMANN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

PETITIONER HAD INSTITUTED AN ADMINISTRATIVE ENFORCEMENT PROCEEDING
AGAINST THE RESPONDENTS, A GROUP OF INDIVIDUALS AND BUSINESS ENTITIES
OPERATING AS THE "SKYCOACH" AIR TRAVEL SYSTEM.  THE BOARD'S COMPLAINT
CHARGED VIOLATION OF ITS REGULATIONS AS WELL AS OF THE CIVIL
AERONAUTICS ACT AND SOUGHT CERTAIN REVOCATION AND CEASE-AND-DESIST
ORDERS AGAINST RESPONDENTS.  IN THE COURSE OF THE PROCEEDINGS, THE
HEARING EXAMINER ISSUED A NUMBER OF SUBPOENAS DUCES TECUM CALLING FOR
THE PRODUCTION OF CERTAIN CATEGORIES OF DOCUMENTS OF THE RESPONDENT
COMPANIES COVERING SPECIFIED PERIODS OF TIME.  ON A MOTION TO QUASH ON
THE GROUNDS, INTER ALIA, THAT THE SUBPOENAS WERE VAGUE, EXCESSIVELY
BROAD IN SCOPE, AND OPPRESSIVE, BOTH THE HEARING EXAMINER AND THE BOARD
FOUND THAT THE SUBPOENAS DESCRIBED THE DOCUMENTS TO BE PRODUCED WITH
SUFFICIENT PARTICULARITY, WERE REASONABLE IN SCOPE, AND WERE NOT
OPPRESSIVE.  UPON RESPONDENTS' CONTINUED REFUSAL TO HONOR THE
SUBPOENAS, PETITIONER FILED THIS ENFORCEMENT PROCEEDING.  INITIALLY THE
TRIAL JUDGE CONTINUED THE CAUSE FOR 10 DAYS "ON CONDITION THAT
RESPONDENTS  ...  MAKE THE DOCUMENTS SPECIFIED IN THE ADMINISTRATIVE
SUBPOENAS  ...  AVAILABLE IMMEDIATELY TO THE REPRESENTATIVES OF THE
CIVIL AERONAUTICS BOARD FOR EXAMINATION AND COPYING AT THE USUAL PLACES
OF BUSINESS OF THE NAMES RESPONDENTS  ...  ."  UPON THE EXPIRATION OF
THIS PERIOD, THE COURT, ON A SHOWING THAT RESPONDENTS HAD NOT COMPLIED
WITH THIS CONDITION, ENTERED AN ORDER OF ENFORCEMENT ALLOWING "A
SUFFICIENT LENGTH OF TIME BETWEEN DATES FOR THE PRODUCTION OF THE
DOCUMENTS  ...  SO THAT THE RESPONDENTS WILL NOT BE DEPRIVED OF ALL OF
THEIR BOOKS AND RECORDS AT THE SAME TIME."  THE COURT FOUND THAT IT
COULD NOT SAY "THAT ANY OF THE DOCUMENTS OR THINGS CALLED FOR IN ANY OF
THE SUBPOENAS ARE IMMATERIAL OR IRRELEVANT TO THE PROCEEDINGS BEFORE
THE BOARD  ...  " WITHOUT AN EXAMINATION OF EACH OF THE ITEMS ORDERED
PRODUCED.  THE COURT OF APPEALS REVERSED, ESTABLISHING CERTAIN
PROCEDURAL REQUIREMENTS THE BOARD MUST FOLLOW BEFORE AN ENFORCEMENT
PROCEEDING IS IN ORDER.  237 F.2D 359. 

AS WE READ THE ORDER OF THE DISTRICT COURT, IT DULY ENFORCED THE
BOARD'S RIGHT TO CALL FOR DOCUMENTS RELEVANT TO THE ISSUES OF THE
BOARD'S COMPLAINT, WITH APPROPRIATE PROVISIONS FOR ASSURING THE MINIMUM
INTERFERENCE WITH THE CONDUCT OF THE BUSINESS OF RESPONDENTS.  THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS REMANDED
TO THE DISTRICT COURT WITH INSTRUCTIONS TO REINSTATE ITS ENFORCEMENT
ORDER OF MAY 16, 1955.  SEE SEC.  1004(B), CIVIL AERONAUTICS ACT OF
1938, 52 STAT. 1021, AS AMENDED, 49 U.S.C. SEC. 644(B); BROWN V. UNITED
STATES, 276 U.S. 134, 142-143 (1928); OKLAHOMA PRESS PUB. CO. V.
WALLING, 327 U.S. 186 (1946); ENDICOTT JOHNSON CORP. V. PERKINS, 317
U.S. 501, 509 (1943).  OF COURSE THIS ENFORCEMENT ORDER LEAVES OPEN TO
THE RESPONDENTS AMPLE OPPORTUNITIES FOR OBJECTING, ON RELEVANT GROUNDS,
TO THE ADMISSIBILITY INTO EVIDENCE OF ANY PARTICULAR DOCUMENT.  IT IS
SO ORDERED. 
..END :





















UNITED STATES V. WITKOVICH 353 U.S. 194 


NO. 295.  ARGUED FEBRUARY 28, 1957 - DECIDED APRIL 29, 1957 - 140 F.
SUPP. 815, AFFIRMED. 


APPELLEE WAS INDICTED UNDER SEC. 242(D) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952 ON THE CHARGE THAT, AS AN ALIEN AGAINST WHOM A
FINAL ORDER OF DEPORTATION HAD BEEN OUTSTANDING FOR MORE THAN SIX
MONTHS, HE HAD WILLFULLY FAILED TO GIVE INFORMATION REQUESTED BY THE
IMMIGRATION AND NATURALIZATION SERVICE UNDER THE PURPORTED AUTHORITY OF
CLAUSE (3) OF THAT SECTION.  THE INFORMATION HE WAS CHARGED WITH
FAILING TO FURNISH CONCERNED (1) PRESENT MEMBERSHIP IN AND ACTIVITIES
ON BEHALF OF THE COMMUNIST PARTY AND OTHER ORGANIZATIONS, AND (2)
ASSOCIATIONS WITH PARTICULAR INDIVIDUALS.  HELD:  CONSTRUING CLAUSE (3)
OF SEC. 242(D) IN THE CONTEXT OF THE ENTIRE SECTION AND OF THE SCHEME
OF THE LEGISLATION AS A WHOLE, WITH DUE REGARD TO THE PRINCIPLE OF SO
CONSTRUING STATUTES AS TO AVOID RAISING CONSTITUTIONAL QUESTIONS, THE
INFORMATION AN ALIEN IS REQUIRED TO FURNISH UNDER CLAUSE (3) RELATES
SOLELY TO HIS AVAILABILITY FOR DEPORTATION; AND DISMISSAL OF THE
INDICTMENT FOR FAILURE TO STATE AN OFFENSE IS SUSTAINED.  PP. 194-202. 

UNITED STATES V. WITKOVICH. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

APPELLEE WAS INDICTED UNDER SEC. 242(D) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 163, 208, ORIGINALLY PART OF SEC. 23
OF THE INTERNAL SECURITY ACT OF 1950, 64 STAT.  1010, ON THE CHARGE
THAT, AS AN ALIEN AGAINST WHOM A FINAL ORDER OF DEPORTATION HAD BEEN
OUTSTANDING FOR MORE THAN SIX MONTHS, HE HAD WILFULLY FAILED TO GIVE
INFORMATION TO THE IMMIGRATION AND NATURALIZATION SERVICE AS REQUIRED
BY THAT SECTION.  APPELLEE MOVED TO DISMISS THE INDICTMENT ON THE
GROUNDS, INTER ALIA, THAT IT FAILED TO STATE AN OFFENSE WITHIN THE
STATUTE AND IN THE ALTERNATIVE, IF IT DID SO, THAT THE STATUTE WAS
UNCONSTITUTIONAL.  THE DISTRICT COURT HELD THAT THE STATUTE AS
CONSTRUED BY IT WAS NOT UNCONSTITUTIONAL.  140 F. SUPP. 815.  THEREUPON
THE UNITED STATES FILED A MOTION FOR CLARIFICATION OF THE COURT'S
OPINION, AND APPELLEE FILED A SUPPLEMENTAL MOTION TO DISMISS THE
INDICTMENT, CLAIMING THAT THE STATUTE AS CONSTRUED BY THE DISTRICT
JUDGE DID NOT AUTHORIZE THE GOVERNMENT TO ELICIT THE DEMANDED
INFORMATION.  THE DISTRICT COURT, IN A SECOND OPINION, DISMISSED THE
INDICTMENT FOR FAILURE TO STATE AN OFFENSE.  140 F. SUPP., AT 820.  THE
CASE WAS BROUGHT HERE, 352 U.S. 817, UNDER THE CRIMINAL APPEALS ACT OF
1907, AS AMENDED, 18 U.S.C. SEC. 3731. 

THE SECTION, AS AMENDED, 68 STAT. 1232, 8 U.S.C. (SUPP. II) SEC.
1252(D), IS AS FOLLOWS: 

"(D)  ANY ALIEN, AGAINST WHOM A FINAL ORDER OF DEPORTATION AS DEFINED
IN SUBSECTION (C) HERETOFORE OR HEREAFTER ISSUED HAS BEEN OUTSTANDING
FOR MORE THAN SIX MONTHS, SHALL, PENDING EVENTUAL DEPORTATION, BE
SUBJECT TO SUPERVISION UNDER REGULATIONS PRESCRIBED BY THE ATTORNEY
GENERAL.  SUCH REGULATIONS SHALL INCLUDE PROVISIONS WHICH WILL REQUIRE
ANY ALIEN SUBJECT TO SUPERVISION (1) TO APPEAR FROM TIME TO TIME BEFORE
AN IMMIGRATION OFFICER FOR IDENTIFICATION; (2) TO SUBMIT, IF NECESSARY,
TO MEDICAL AND PSYCHIATRIC EXAMINATION AT THE EXPENSE OF THE UNITED
STATES; (3) TO GIVE INFORMATION UNDER OATH AS TO HIS NATIONALITY,
CIRCUMSTANCES, HABITS, ASSOCIATIONS, AND ACTIVITIES, AND SUCH OTHER
INFORMATION, WHETHER OR NOT RELATED TO THE FOREGOING, AS THE ATTORNEY
GENERAL MAY DEEM FIT AND PROPER; AND (4) TO CONFORM TO SUCH REASONABLE
WRITTEN RESTRICTIONS ON HIS CONDUCT OR ACTIVITIES AS ARE PRESCRIBED BY
THE ATTORNEY GENERAL IN HIS CASE.  ANY ALIEN WHO SHALL WILLFULLY FAIL
TO COMPLY WITH SUCH REGULATIONS, OR WILLFULLY FAIL TO APPEAR OR TO GIVE
INFORMATION OR SUBMIT TO MEDICAL OR PSYCHIATRIC EXAMINATION IF
REQUIRED, OR KNOWINGLY GIVE FALSE INFORMATION IN RELATION TO THE
REQUIREMENTS OF SUCH REGULATIONS, OR KNOWINGLY VIOLATE A REASONABLE
RESTRICTION IMPOSED UPON HIS CONDUCT OR ACTIVITY, SHALL BE FINED NOT
MORE THAN $1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 

THE DISTRICT COURT CONSTRUED SEC. 242(D) AS CONFERRING UPON THE
ATTORNEY GENERAL "POWER TO SUPERVISE THE ALIEN TO MAKE SURE HE IS
AVAILABLE FOR DEPORTATION, AND NO FURTHER POWER."  ACCORDINGLY, IT HELD
THAT CLAUSE (3) OF THIS SUBSECTION IS TO BE RESTRICTED TO REQUIRE ONLY
"SUCH INFORMATION AS IS NECESSARY TO ENABLE THE ATTORNEY GENERAL TO BE
CERTAIN THAT THE ALIEN IS HOLDING HIMSELF IN READINESS TO ANSWER THE
CALL TO BE DEPORTED WHEN IT COMES."  140 F. SUPP., AT 819-820.  THE
COURT FOUND THAT THE QUESTIONS LISTED IN THE INDICTMENT, WHICH ARE SET
FORTH IN THE MARGIN,* WERE NOT RELEVANT TO APPELLEE'S AVAILABILITY FOR
DEPORTATION.  THE INTERPRETATION THAT THE DISTRICT COURT THUS PLACED ON
SEC. 242(D) WAS DERIVED FROM A CONSIDERATION OF ITS RELATION TO THE
ENTIRE STATUTORY SCHEME OF DEPORTATION OF WHICH IT IS A PART.  THE
COURT BELOW WAS FURTHER GUIDED BY THE PRINCIPLE THAT REQUIRES COURTS,
WHEN CONSTRUING STATUTES, TO AVOID CONSTITUTIONAL DOUBTS.  "TO HOLD
THAT THE STATUTE INTENDED TO GIVE AN OFFICIAL THE UNLIMITED RIGHT TO
SUBJECT A MAN TO CRIMINAL PENALTIES FOR FAILURE TO ANSWER ABSOLUTELY
ANY QUESTION THE OFFICIAL MAY DECIDE TO ASK WOULD RAISE VERY SERIOUS
CONSTITUTIONAL QUESTIONS."  ID., AT 821. 

*"(A)  Q. DO YOU SUBSCRIBE TO THE DAILY WORKER? 

"(B)  Q. MR. WITKOVICH, CAN YOU READ IN ANY OTHER LANGUAGE OTHER THAN
SLOVENE AND ENGLISH? 

"(C)  Q. SINCE THE ORDER OF SUPERVISION WAS ENTERED ON MARCH 4, 1954,
HAVE YOU AT ANY TIME VISITED THE OFFICE OF THE 'NARODNY GLASNIK,' 1413
WEST 18TH STREET, CHICAGO, ILLINOIS? 

"(D)  Q. SINCE THE ORDER OF SUPERVISION WAS ENTERED ON MARCH 4, 1954,
MR. WITKOVICH, HAVE YOU EVER VISITED THE OFFICES OF THE BOHEMIAN
PUBLICATION 'NOVA DOVA' OR THE SLOVAKIAN PUBLICATION 'LUDOVY NOVINY,'
1510 WEST 18TH STREET, CHICAGO, ILLINOIS? 

"(E)  Q. DO YOU KNOW THE EDITOR OF THE 'NARODNI GLASNIK'? 

"(F)  Q. DO YOU KNOW LEO FISHER? 

"(G)  Q. DO YOU KNOW ANTON MINERICH? 

"(H)  Q. DO YOU KNOW NICK RAJKOVICH? 

"(I)  Q. DO YOU KNOW ARSENIO BARTL? 

"(J)  Q. DO YOU KNOW JOHN ZUSKAR? 

"(K)  Q. DO YOU KNOW CALVIN BROOK? 

"(L)  Q. SINCE THE ORDER OF DEPORTATION WAS ENTERED IN YOUR CASE ON
JUNE 25, 1953 HAVE YOU ATTENDED ANY MEETING OF THE COMMUNIST PARTY OF
THE U.S.A.? 

"(M)  Q. SINCE THE ORDER OF SUPERVISION WAS ENTERED ON MARCH 4, 1954
HAVE YOU ATTENDED ANY MEETING OF ANY ORGANIZATION OTHER THAN THE
SINGING CLUB? 

"(N)  Q. HAVE YOU ADDRESSED ANY LODGES OF THE SLOVENE NATIONAL
BENEFIT SOCIETY REQUESTING THEIR AID IN YOUR CASE, SINCE THE ORDER OF
DEPORTATION WAS ENTERED JUNE 25, 1953? 

"(O)  Q. HAVE YOU DISTRIBUTED PETITIONS OR LEAFLETS PUBLISHED BY THE
SLOVENE NATIONAL BENEFIT SOCIETY SEEKING AID FOR YOU, IN YOUR BEHALF,
IN YOUR DEPORTATION CASE SINCE THE ORDER OF DEPORTATION WAS ENTERED
JUNE 25, 1953? 

"(P)  Q. SINCE THE ORDER OF SUPERVISION HAVE YOU ATTENDED ANY
MEETINGS OR LECTURES AT THE PEOPLES AUDITORIUM, 2457 WEST CHICAGO
AVENUE, CHICAGO, ILLINOIS? 

"(Q)  Q. SINCE THE ORDER OF SUPERVISION WAS ENTERED AGAINST YOU HAVE
YOU ATTENDED ANY MEETINGS OR SOCIALS AT THE CHOPIN CULTURAL CENTER,
1547 NORTH LEAVITT STREET, CHICAGO? 

"(R)  Q. HAVE YOU ATTENDED ANY MOVIES SINCE YOUR ORDER OF SUPERVISION
WAS ENTERED AT THE CINEMA ANNEX, 3210 WEST MADISON STREET, CHICAGO? 

"(S)  Q. ARE YOU ACQUAINTED WITH AN INDIVIDUAL NAMED IRVING
FRANKLIN? 

"(T)  Q. ARE YOU NOW A MEMBER OF THE COMMUNIST PARTY OF U.S.A.? 

"(U)  Q. ARE YOU NOW OR HAVE YOU EVER BEEN A MEMBER OF THE SLOVENE
AMERICAN NATIONAL COUNCIL? 

"(V)  Q. ARE YOU NOW OR HAVE YOU EVER BEEN A MEMBER OF THE UNITED
COMMITTEE OF SOUTH SLAVIC AMERICANS?" 

THE GOVERNMENT DOES NOT SUPPORT THE QUESTIONS PUT TO THE ALIEN ON THE
BASIS OF THE CONSTRUCTION THAT THE DISTRICT COURT PLACED UPON SEC.
242(D).  THIS CONSTRUCTION AUTHORIZES ALL QUESTIONS REASONABLY
APPROPRIATE TO KEEP THE ATTORNEY GENERAL ADVISED REGARDING THE
CONTINUED AVAILABILITY FOR DEPARTURE OF A DEPORTABLE ALIEN.  THE
GOVERNMENT CONTENDS THAT THE DISTRICT COURT MISCONCEIVED THE SCOPE OF
THE STATUTE.  IT POINTS TO WHAT IT CHARACTERIZES AS "THE ELOQUENT
BREADTH" OF CLAUSE (3), WHEREBY THE ALIEN IS TO GIVE "SUCH OTHER
INFORMATION, WHETHER OR NOT RELATED TO THE FOREGOING, AS THE ATTORNEY
GENERAL MAY DEEM FIT AND PROPER."  THIS, SAYS THE GOVERNMENT,
ESTABLISHES A REQUIREMENT "IN THE BROADEST POSSIBLE STATUTORY TERMS FOR
THE FURNISHING OF INFORMATION BY THE ALIEN."  AND THIS VIEW, IT
MAINTAINS, FITS INTO THE STATUTORY SCHEME.  IN THE CIRCUMSTANCES
DEFINED BY SEC. 242(A), AN ALIEN MAY BE DETAINED PENDING DETERMINATION
OF DEPORTABILITY; AND SEC. 242(C) AUTHORIZES SUCH DETENTION FOR SIX
MONTHS AFTER THE ALIEN HAS BEEN FOUND DEPORTABLE.  SO, THE GOVERNMENT
ARGUES, SEC. 242(D), THOUGH IT DOES NOT AUTHORIZE DETENTION AFTER SIX
MONTHS, IS AN ATTEMPT TO ACCOMPLISH IN A MODIFIED FORM THE ENDS THAT
WOULD JUSTIFY DETENTION IN THE EARLIER STAGES OF THE DEPORTATION
PROCESS.  OUR DECISION IN CARLSON V. LANDON, 342 U.S. 524, IS HEAVILY
INVOKED.  IF, SO THE ARGUMENT RUNS, DETENTION OF ACTIVE ALIEN
COMMUNISTS PENDING DEPORTATION HEARINGS WAS SUSTAINABLE UNDER SEC.
242(A), THE NATIONAL INTEREST IN AVOIDING RECURRENCE OF PAST COMMUNIST
ACTIVITY FOR WHICH APPELLEE IS BEING DEPORTED SHOULD AT LEAST REQUIRE
HIM TO ANSWER QUESTIONS REGARDING ANY PRESENT COMMUNIST RELATIONSHIPS. 
FOR THIS VIEW OF THE PURPOSE OF SUPERVISION, SUPPORT IS FOUND IN TWO
OTHER STATUTORY PROVISIONS:  SEC. 242(E), MAKING AN ALIEN'S WILFUL
FAILURE TO LEAVE THE COUNTRY A FELONY BUT PROVIDING FOR SUSPENSION OF
SENTENCE AND RELEASE OF THE ALIEN UPON JUDICIAL CONSIDERATION, INTER
ALIA, OF THE EFFECT OF RELEASE UPON THE NATIONAL SECURITY AND THE
LIKELIHOOD OF RESUMPTION OF CONDUCT THAT SERVES AS A BASIS FOR
DEPORTATION; AND THE RECITAL IN SEC. 2(13) OF THE INTERNAL SECURITY ACT
OF 1950, THAT "NUMEROUS ALIENS WHO HAVE BEEN FOUND TO BE DEPORTABLE,
MANY OF WHOM ARE IN THE SUBVERSIVE, CRIMINAL, OR IMMORAL CLASSES  ...
ARE FREE TO ROAM THE COUNTRY AT WILL WITHOUT SUPERVISION OR CONTROL." 
64 STAT. 987. 

THE LANGUAGE OF SEC. 242(D)(3), IF READ IN ISOLATION AND LITERALLY,
APPEARS TO CONFER UPON THE ATTORNEY GENERAL UNBOUNDED AUTHORITY TO
REQUIRE WHATEVER INFORMATION HE DEEMS DESIRABLE OF ALIENS WHOSE
DEPORTATION HAS NOT BEEN EFFECTED WITHIN SIX MONTHS AFTER IT HAS BEEN
COMMANDED.  THE GOVERNMENT ITSELF SHRINKS FROM STANDING ON THE BREADTH
OF THESE WORDS.  BUT ONCE THE TYRANNY OF LITERALNESS IS REJECTED, ALL
RELEVANT CONSIDERATIONS FOR GIVING A RATIONAL CONTENT TO THE WORDS
BECOME OPERATIVE.  A RESTRICTIVE MEANING FOR WHAT APPEARS TO BE PLAIN
WORDS MAY BE INDICATED BY THE ACT AS A WHOLE, BY THE PERSUASIVE GLOSS
OF LEGISLATIVE HISTORY OR BY THE RULE OF CONSTITUTIONAL ADJUDICATION,
RELIED ON BY THE DISTRICT COURT, THAT SUCH A RESTRICTIVE MEANING MUST
BE GIVEN IF A BROADER MEANING WOULD GENERATE CONSTITUTIONAL DOUBTS. 

THE PREOCCUPATION OF THE ENTIRE SUBSECTION OF WHICH CLAUSE (3) IS A
PART IS CERTAINLY WITH AVAILABILITY FOR DEPORTATION.  CLAUSE (1)
REQUIRES THE ALIEN'S PERIODIC APPEARANCE FOR THE PURPOSE OF
IDENTIFICATION, AND CLAUSE (2) DEALING WITH MEDICAL AND PSYCHIATRIC
EXAMINATION, WHEN NECESSARY, CLEARLY IS DIRECTED TO THE SAME END; AND
THE "REASONABLE WRITTEN RESTRICTIONS ON THE ALIEN'S CONDUCT OR
ACTIVITIES" AUTHORIZED BY CLAUSE (4) HAVE AN IMPLIED SCOPE TO BE
GATHERED FROM THE SUBJECT MATTER, I.E., THE OBJECT OF THE STATUTE AS A
WHOLE.  MOREOVER, THIS LIMITATION OF "REASONABLENESS" IMPOSED BY CLAUSE
(4) UPON THE ATTORNEY GENERAL'S POWER TO RESTRICT SUGGESTS THAT, IF WE
ARE TO HARMONIZE THE VARIOUS PROVISIONS OF THE SECTION, THE SAME
LIMITATION MUST ALSO BE READ INTO THE ATTORNEY GENERAL'S SEEMINGLY
LIMITLESS POWER TO QUESTION UNDER CLAUSE (3).  FOR, ASSUREDLY, CONGRESS
DID NOT AUTHORIZE THAT OFFICIAL TO ELICIT INFORMATION THAT COULD NOT
SERVE AS A BASIS FOR CONFINING AN ALIEN'S ACTIVITIES.  NOWHERE IN SEC.
242(D) IS THERE ANY SUGGESTION OF A POWER OF BROAD SUPERVISION LIKE
UNTO THAT OVER A PROBATIONER.  WHEN CONGRESS DID WANT TO DEAL WITH THE
FAR-FLUNG INTEREST OF NATIONAL SECURITY OR THE GENERAL UNDESIRABLE
CONDUCT OF ALIENS, IT GAVE CLEAR INDICATION OF THIS PURPOSE, AS IN SEC.
242(E).  IN PROVIDING FOR THE RELEASE OF ALIENS CONVICTED OF WILFUL
FAILURE TO DEPART, THAT SUBSECTION SPECIFICALLY REQUIRES COURTS TO
INQUIRE INTO BOTH THE EFFECT OF THE ALIEN'S RELEASE UPON NATIONAL
SECURITY AND THE LIKELIHOOD OF HIS CONTINUED UNDESIRABLE CONDUCT. 

THE LEGISLATIVE HISTORY LIKEWISE COUNSELS CONFINEMENT OF THE MERE
WORDS TO THE GENERAL PURPOSE OF THE LEGISLATIVE SCHEME OF WHICH CLAUSE
(D) IS A PART, NAMELY, THE ACTUAL DEPORTATION OF CERTAIN UNDESIRABLE
CLASSES OF ALIENS.  SECTION 242(D), AS IT WAS REPORTED BY THE HOUSE
JUDICIARY COMMITTEE AND PASSED BY THE HOUSE IN 1949, WAS IN ITS PRESENT
STATE IN ALL BUT ONE SIGNIFICANT RESPECT.  IT PROVIDED FOR INDEFINITE
DETENTION OF ANY ALIEN WHO WILFULLY FAILED TO COMPLY WITH THE
REGULATIONS, TO APPEAR, TO GIVE INFORMATION OR TO SUBMIT TO MEDICAL
EXAMINATION, OR WHO KNOWINGLY GAVE FALSE INFORMATION OR VIOLATED A
REASONABLE RESTRICTION UPON HIS ACTIVITY.  H.R. REP. NO. 1192, 81ST
CONG., 1ST SESS., PP. 2-3.  THE REPORT OF THE HOUSE COMMITTEE, ALTHOUGH
IN SEVERAL PLACES FOCUSING ONLY UPON AVAILABILITY FOR DEPORTATION, DOES
INDICATE CONCERN OVER THE THREAT TO THE NATIONAL INTEREST REPRESENTED
BY UNDESIRABLE BUT UNDEPORTABLE ALIENS.  THE SENATE JUDICIARY
COMMITTEE, WHILE SHARING THE DESIRE OF THE HOUSE TO CONTROL THE
ACTIVITIES OF SUCH ALIENS, SUBSTITUTED FOR THE HOUSE BILL'S DETENTION
PROVISION THE IMPOSITION OF CRIMINAL PENALTIES FOR FAILURE TO COMPLY
WITH THE CONDITIONS OF SUPERVISION.  THE REPORT OF THE SENATE COMMITTEE
SIGNIFICANTLY STATES THE REASON FOR THE CHANGE: "THIS PROVISION IN THE
BILL AS IT PASSED THE HOUSE OF REPRESENTATIVES APPEARS TO PRESENT A
CONSTITUTIONAL QUESTION."  S. REP. NO. 2239, 81ST CONG., 2D SESS., P.
8.  THIS HISTORY, ALTHOUGH SUGGESTING A DESIRE TO EXERCISE CONTINUING
CONTROL OVER THE ACTIVITIES AS WELL AS THE AVAILABILITY OF ALIENS WHOSE
DEPORTATION HAD BEEN ORDERED BUT NOT EFFECTED, SHOWS A STRONG
CONGRESSIONAL UNWILLINGNESS TO ENACT LEGISLATION THAT MAY SUBJECT THE
ATTORNEY GENERAL'S SUPERVISORY POWERS TO CONSTITUTIONAL CHALLENGE. 
ACCEPTANCE OF THE INTERPRETATION OF SEC. 242(D) URGED BY THE GOVERNMENT
WOULD RAISE DOUBTS AS TO THE STATUTE'S VALIDITY.  BY CONSTRUING THE ACT
TO CONFER POWER ON THE ATTORNEY GENERAL AND HIS AGENTS TO INQUIRE INTO
MATTERS THAT GO BEYOND ASSURING AN ALIEN'S AVAILABILITY FOR DEPORTATION
WE WOULD, AT THE VERY LEAST, OPEN UP THE QUESTION OF THE EXTENT TO
WHICH AN ADMINISTRATIVE OFFICER MAY INHIBIT DEPORTABLE ALIENS FROM
RENEWING ACTIVITIES THAT SUBJECTED THEM TO DEPORTATION.  SEE 70 HARV.
L. REV. 718.  THIS IS NOT CARLSON V. LANDON, SUPRA, WHERE THE QUESTION
WAS WHETHER AN ALIEN COULD BE DETAINED DURING THE CUSTOMARILY BRIEF
PERIOD PENDING DETERMINATION OF DEPORTABILITY.  CONTRARIWISE, AND AS
THE SENATE AND HOUSE COMMITTEES RECOGNIZED IN PASSING ON SEC. 242(D),
SUPERVISION OF THE UNDEPORTABLE ALIEN MAY BE A LIFETIME PROBLEM.  IN
THESE CIRCUMSTANCES, ISSUES TOUCHING LIBERTIES THAT THE CONSTITUTION
SAFEGUARDS, EVEN FOR AN ALIEN "PERSON," WOULD FAIRLY BE RAISED ON THE
GOVERNMENT'S VIEW OF THE STATUTE. 

THE PATH OF CONSTITUTIONAL CONCERN IN THIS SITUATION IS CLEAR. 

"WHEN THE VALIDITY OF AN ACT OF THE CONGRESS IS DRAWN IN QUESTION,
AND EVEN 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. 

SEE ALSO CASES CITED IN THE CONCURRING OPINION OF MR. JUSTICE
BRANDEIS IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 348,
NOTE 8. 

TO EXPEDITE THE DEPORTATION OF UNDESIRABLE ALIENS, AND CLAUSE (3) MUST
BE PLACED IN THE CONTEXT OF THAT SCHEME.  AS THE DISTRICT COURT HELD
AND AS OUR OWN EXAMINATION OF THE ACT CONFIRMS, IT IS A PERMISSIBLE AND
THEREFORE AN APPROPRIATE CONSTRUCTION TO LIMIT THE STATUTE TO
AUTHORIZING ALL QUESTIONS REASONABLY CALCULATED TO KEEP THE ATTORNEY
GENERAL ADVISED REGARDING THE CONTINUED AVAILABILITY FOR DEPARTURE OF
ALIENS WHOSE DEPORTATION IS OVERDUE.  ACCORDINGLY, THE JUDGMENT OF THE
DISTRICT COURT IS AFFIRMED. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

THE CONGRESS HAS AUTHORIZED THE ATTORNEY GENERAL TO RETAIN AN ALIEN
IN CUSTODY DURING THE PENDENCY OF DEPORTATION PROCEEDINGS.  66 STAT.
208, 8 U.S.C. SEC. 1252(A).  THIS COURT APPROVED SUCH CUSTODY IN
CARLSON V. LANDON, 342 U.S. 524 (1952).  THE CONGRESS HAS ALSO
AUTHORIZED THE ATTORNEY GENERAL TO RETAIN AN ALIEN IN CUSTODY FOR SIX
MONTHS SUBSEQUENT TO A FINAL ORDER OF DEPORTATION WITHIN WHICH TO
"EFFECT THE ALIEN'S DEPARTURE."  66 STAT. 210, 8 U.S.C. SEC. 1252(C). 
THE SECTION HERE IN QUESTION FURTHER DECLARES THAT AN ALIEN UNDER A
FINAL ORDER OF DEPORTATION FOR OVER SIX MONTHS "SHALL, PENDING EVENTUAL
DEPORTATION, BE SUBJECT TO SUPERVISION UNDER REGULATIONS PRESCRIBED BY
THE ATTORNEY GENERAL."  64 STAT. 1011, AS AMENDED, 8 U.S.C. (SUPP. IV)
SEC. 1252(D).  THE ATTORNEY GENERAL HAS IMPLEMENTED THIS PROVISION BY A
REGULATION REQUIRING THE ALIEN, INTER ALIA, TO "GIVE INFORMATION UNDER
OATH AS TO HIS NATIONALITY, CIRCUMSTANCES, HABITS, ASSOCIATIONS AND
ACTIVITIES, AND OTHER INFORMATION WHETHER OR NOT RELATED TO THE
FOREGOING AS MAY BE DEEMED FIT AND PROPER."  8 CFR SEC. 242.3(C)(3). 
THIS LANGUAGE WAS TAKEN FROM SUBSECTION (3) OF 8 U.S.C. SEC. 1252(D),
THE SOURCE OF THE ATTORNEY GENERAL'S POWER OF SUPERVISION.  BUT TODAY
THE COURT HAS DENIED THE ATTORNEY GENERAL THE RIGHT TO QUESTION THE
DEPORTEE IN REGARD TO ACTIVITIES IN CONJUNCTION WITH THE DEPORTEE'S
PRIOR CONDUCT ON WHICH THE DEPORTATION ORDER WAS BASED.  BY ITS
INTERPRETATION THE COURT HAS DELETED THE CRUX OF THIS SUBSECTION FROM
THE ACT AND LIMITED THIS PHASE OF THE ATTORNEY GENERAL'S "SUPERVISION"
OF ALIENS UNDER FINAL DEPORTATION ORDER FOR OVER SIX MONTHS SOLELY TO
INTERROGATION RELEVANT TO THE AVAILABILITY OF THE ALIEN FOR
DEPORTATION.  IN THIS RESPECT THE CONSTRUCTION PLACES AN ALIEN WHO HAS
BEEN UNDER A FINAL ORDER OF DEPORTATION FOR MORE THAN SIX MONTHS IN A
MORE FAVORABLE POSITION THAN ONE WHO IS UNDER NO ORDER AT ALL.  OTHER
ALIENS ARE OBLIGED TO REPORT TO THE ATTORNEY GENERAL WHEN CALLED UPON
TO DO SO.  INDEED, THEY MUST TESTIFY OR CLAIM THEIR PRIVILEGE.  NO
PRIVILEGE WAS CLAIMED HERE.  THE CONGRESS COULD NOT HAVE INTENDED THE
ANOMALOUS RESULT REACHED TODAY, ONE WHICH IS ENTIRELY FOREIGN TO ITS
OVER-ALL PLAN OF CONTROL OVER RESIDENT ALIENS.  FOR THE POWER OF THE
ATTORNEY GENERAL OVER ALIENS GENERALLY SEE 66 STAT. 223-225, 8 U.S.C.
SECS. 1301-1306. 

THE MAJORITY REASONS THAT THE ENTIRE SUBSECTION OF WHICH CLAUSE (3)
IS A PART IS PREOCCUPIED WITH AN ALIEN'S AVAILABILITY FOR DEPORTATION. 
WE BELIEVE, HOWEVER, THAT "THE DANGER TO THE PUBLIC SAFETY OF THE
ALIEN'S PRESENCE WITHIN THE COMMUNITY," UNITED STATES EX REL. POTASH V.
DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION, 169 F.2D 747, 751
(1948), WAS THE BASIS ON WHICH THE CONGRESS PLACED THIS POWER WITH THE
ATTORNEY GENERAL.  IN SHORT, "THE ALIEN'S ANTICIPATED PERSONAL CONDUCT
... BASED ON HIS PAST ACTION MUST BE CONSIDERED."  SEE THE DISSENTING
OPINION IN CARLSON V. LANDON, SUPRA, AT 563-564.  AND SO HERE, HIGHLY
RELEVANT TO THE DECISION REGARDING ANY ADDITIONAL SUPERVISION THAT IS
TO BE PLACED OVER APPELLEE, OR THE REMOVAL OF ANY PRIOR SUPERVISION, IS
INFORMATION AS TO WHETHER HE HAS RESUMED HIS PAST ACTIVITIES IN THE
COMMUNIST PARTY.  YET THE COURT DOES NOT ALLOW INQUIRY INTO THIS AND
RELATED AREAS UNLESS IT IS NECESSARY TO DETERMINE APPELLEE'S
AVAILABILITY FOR DEPORTATION.  THE ATTORNEY GENERAL IS THEREBY DEPRIVED
OF THIS INFORMATION VITAL TO THE EXERCISE OF HIS SUPERVISORY DUTIES. 

THE STATUTE WAS MOTIVATED BY NATIONAL SECURITY PROBLEMS WITH WHICH
THE CONGRESS FELT IMPELLED TO DEAL.  IN SEC. 1252(D) CONGRESS WAS NOT
CONCERNED WITH "ACTUAL DEPORTATION," BUT WITH THAT CLASS OF DEPORTEES
WHO COULD NOT BE DEPORTED BECAUSE NO COUNTRY WOULD PERMIT THEM
ENTRANCE.  IT BELIEVED THAT AN ALIEN FINALLY ORDERED DEPORTED BUT WHO
COULD NO LONGER BE HELD IN CUSTODY PENDING EVENTUAL EFFECTUATION OF THE
ORDER SHOULD BE UNDER THE SUPERVISION OF THE ATTORNEY GENERAL.  ALL
ALIENS, REGARDLESS OF THEIR STATUS, ARE UNDER SOME SUPERVISION AND MUST
ANSWER INQUIRIES IN RESPECT TO:  (1) THE DATE AND PLACE OF THEIR ENTRY
INTO THE UNITED STATES; (2) THE ACTIVITIES IN WHICH THEY HAVE BEEN AND
INTEND TO BE ENGAGED; (3) THE LENGTH OF TIME THEY EXPECT TO REMAIN IN
THE UNITED STATES; (4) THEIR POLICE OR CRIMINAL RECORD, IF ANY; AND (5)
SUCH ADDITIONAL MATTERS AS MAY BE PRESCRIBED.  66 STAT. 224, 8 U.S.C.
SEC. 1304(A).  IN ADDITION, ALL ALIENS MUST REGISTER (FN1) AND BE
FINGERPRINTED, 66 STAT. 224, 8 U.S.C. SEC. 1302; THEY MUST NOTIFY THE
ATTORNEY GENERAL OF THEIR ADDRESS ANNUALLY AND ANY CHANGE MUST BE FILED
WITHIN 10 DAYS THEREOF, 66 STAT. 225, 8 U.S.C. SEC. 1305.  CRIMINAL
PENALTIES ARE IMPOSED FOR WILLFUL FAILURE TO COMPLY WITH ANY OF THESE
REGISTRATION PROVISIONS, 66 STAT. 225, 8 U.S.C. SEC. 1306.  CONGRESS
THOUGHT THAT DEPORTEES SHOULD HAVE CLOSER SUPERVISION THAN OTHER
ALIENS.  AS THE COURT INDICATED IN CARLSON V. LANDON, SUPRA, AT 538,
"ALIENS ARRESTED FOR DEPORTATION WOULD HAVE OPPORTUNITIES TO HURT THE
UNITED STATES  ...  ."  DEPORTEES HAVE A STRONGER MOTIVATION FOR
CARRYING ON SUBVERSIVE ACTIVITIES THAN OTHER PERSONS AND ARE MORE
LIKELY TO ADOPT OLD HABITS, RETURN TO OLD HAUNTS, AND RESUME OLD
ACTIVITIES.  SINCE 1939 CONGRESS HAD BEEN CONSIDERING THE TIGHTENING OF
CONTROLS OVER SUCH ALIENS.  EVEN THEN A BILL INTRODUCED IN CONGRESS
REFERRED TO "THE LIKELIHOOD OF THE ALIEN'S RESUMING THE COURSE OF
CONDUCT WHICH MADE HIM DEPORTABLE."  H.R. 5643, 76TH CONG., 1ST SESS.;
84 CONG. REC.  5179.  IN THE EIGHTY-FIRST CONGRESS A HOUSE COMMITTEE
DECLARED IN COMMENT ON ITS BILL WHICH CONTAINED A PROVISION SIMILAR TO
THAT HERE INVOLVED, "THE SITUATION HAS NOW BECOME SO SERIOUS  ...  THAT
THE COMMITTEE FEELS THAT THE ENACTMENT OF LEGISLATION OF THIS TYPE IS A
NECESSITY, NOT ONLY TO THE PROPER ADMINISTRATION OF THE IMMIGRATION
LAWS, BUT FROM THE STANDPOINT OF THE NATIONAL SECURITY OF THE UNITED
STATES."  H.R. REP. NO. 1192, 81ST CONG., 1ST SESS. 8.  BEFORE THE
PRESIDENTIAL VETO OF THE PROPOSED INTERNAL SECURITY ACT OF 1950, H.R.
9490, 81ST CONG., 2D SESS., OF WHICH THIS PROVISION WAS A PART, BUT TO
WHICH THE PRESIDENT EXPRESSED NO OPPOSITION ON CONSTITUTIONAL GROUNDS,
(FN2) A SUBSTITUTE BILL HAD BEEN OFFERED IN THE SENATE.  (FN3)  THIS
PROPOSAL CONTAINED THE IDENTICAL LANGUAGE WHICH THIS COURT NOW READS
OUT OF THE ACT, I.E., REQUIRING THE ALIEN TO GIVE "INFORMATION UNDER
OATH AS TO HIS NATIONALITY, CIRCUMSTANCES, HABITS, ASSOCIATIONS, AND
ACTIVITIES, AND SUCH OTHER INFORMATION, WHETHER OR NOT RELATED TO THE
FOREGOING, AS THE ATTORNEY GENERAL MAY DEEM FIT AND PROPER."  WHILE
THIS SUBSTITUTE BILL WAS NOT ENACTED, THE SAME LANGUAGE WAS INCLUDED
WITHIN THE PRESENT ACT, SHOWING THAT THE SECTION HERE INVOLVED HAS LONG
BEEN ACCEPTABLE TO ALL SIDES.  IN VIEW OF THE LEGISLATIVE HISTORY OF
THE FORERUNNERS OF THE PRESENT PROVISION IT IS SURPRISING THAT THE
COURT NOW READS OUT OF THE ACT THE IDENTICAL LANGUAGE WHICH HAS
REPEATEDLY BEEN INCLUDED BY THE CONGRESS.  IN SO DOING THE COURT
DEPRIVES THE ATTORNEY GENERAL OF A POWER OF SUPERVISION OVER DEPORTEES
THAT HE POSSESSES AND EXERCISES EVERY DAY OVER OTHER ALIENS NOT UNDER
DEPORTATION ORDERS. 

THE COURT TAKES THE POSITION THAT ANY CONSTRUCTION OTHER THAN THAT
TODAY ADOPTED "WOULD, AT THE VERY LEAST, OPEN UP THE QUESTION OF THE
EXTENT TO WHICH AN ADMINISTRATIVE OFFICER MAY INHIBIT DEPORTABLE ALIENS
FROM RENEWING ACTIVITIES THAT SUBJECTED THEM TO DEPORTATION."  BUT NO
SUCH QUESTION IS INVOLVED HERE.  AS THE TRIAL JUDGE PUTS THE ISSUE, IT
IS WHETHER THE CONGRESS MAY CONSTITUTIONALLY GIVE THE ATTORNEY GENERAL
"THE UNLIMITED RIGHT TO SUBJECT A MAN TO CRIMINAL PENALTIES FOR FAILURE
TO ANSWER ABSOLUTELY ANY QUESTION  ...  ."  140 F. SUPP., AT 821. 
THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE ATTORNEY GENERAL
ATTEMPTED FURTHER TO "INHIBIT" THE APPELLEE "FROM RENEWING ACTIVITIES
THAT SUBJECTED HIM TO DEPORTATION."  IT MAY BE THAT THE ATTORNEY
GENERAL WOULD HAVE TRIED FURTHER TO "INHIBIT" APPELLEE IF THE ANSWERS
PUT TO HIM HAD INDICATED ANY NECESSITY THEREFOR IN THE INTEREST OF
NATIONAL SECURITY.  BUT THAT STAGE WAS NEVER REACHED.  ALL THE ATTORNEY
GENERAL UNDERTOOK WAS TO QUESTION APPELLEE.  HE GOT NO ANSWERS.  AND
THE COURT, IN AFFIRMING, PREVENTS THE ATTORNEY GENERAL FROM OBTAINING
ANY ANSWERS TO THE QUESTIONS.  IT IS FOR THIS REASON THAT WE DISSENT. 
THE SCOPE OF THE ATTORNEY GENERAL'S RIGHT TO INQUIRY IS THE SOLE ISSUE
HERE.  THE CONGRESS BEYOND ANY QUESTION GAVE THE ATTORNEY GENERAL THE
AUTHORITY HE EXERCISED.  WHETHER IT PLACED FURTHER AUTHORITY IN HIS
HANDS TO "INHIBIT" THE ALIEN'S ACTIVITIES IS NOT INVOLVED.  WE,
THEREFORE, SEE NO NECESSITY OF INVOKING THE RULE OF AVOIDANCE OF
CONSTITUTIONAL QUESTIONS.  THERE ARE NONE TO AVOID FOR THE ATTORNEY
GENERAL CLEARLY HAS THE RIGHT TO QUESTION AS TO ACTIVITIES INDICATED BY
PAST CONDUCT.  IT WILL BE SOON ENOUGH TO PASS ON OTHER SUPERVISORY
POWERS WHEN THEY ARE HERE. 

HOWEVER, SINCE THE MAJORITY HAS ENLARGED THE ISSUE TO INCLUDE THE
POWER TO RESTRICT THE ALIEN'S ACTIVITIES WE FEEL IT NECESSARY TO
COMMENT THEREON.  WE BELIEVE THAT THE PURPOSE OF THE ACT WAS TO PREVENT
A DEPORTABLE ALIEN FROM USING THE PERIOD OF HIS FURTHER RESIDENCE FOR
THE CONTINUATION OF SUBVERSIVE, CRIMINAL, IMMORAL, OR OTHER UNDESIRABLE
ACTIVITIES WHICH FORMED THE BASIS OF HIS ORDERED DEPORTATION.  THIS IS
A PART OF THE "CONGRESSIONAL PLAN" WITH REFERENCE TO CONTROL OF
SUBVERSIVE ACTIVITIES WITHIN THE UNITED STATES.  PENNSYLVANIA V.
NELSON, 350 U.S. 497, 503-504 (1956).  SEVERAL THOUSAND ALIEN
COMMUNISTS WHO HAVE BEEN FINALLY ORDERED DEPORTED WILL FROM NOW ON, DUE
TO THE COURT'S DECISION TODAY, BE UNDER VIRTUALLY NO STATUTORY
SUPERVISION.  STILL THEY WILL, IN ALL PROBABILITY, REMAIN AMONG US FOR
NEITHER THEY NOR THE COUNTRIES OF WHICH THEY ARE NATIONALS WISH THEM TO
LEAVE.  TO THEIR COUNTRIES THEY ARE POTENTIAL AGENTS.  THE HOUSE
COMMITTEE ON THE JUDICIARY RECOGNIZED THIS DANGER IN ITS REPORT ON
FACILITATING THE DEPORTATION OF ALIENS.  H.R. REP. NO. 1192, 81ST
CONG., 1ST SESS. 8-13.  CASE HISTORIES SET OUT IN THIS REPORT INDICATE
THAT ALIENS ORDERED DEPORTED WERE REFUSED VISAS BY THEIR NATIVE
COUNTRIES SO THAT THEY MIGHT REMAIN IN THE UNITED STATES AND CARRY ON
THE VERY ACTIVITIES FOR WHICH THEY WERE ORDERED DEPORTED.  SEE ALSO
HEARINGS BEFORE THE SENATE SUBCOMMITTEE ON IMMIGRATION AND
NATURALIZATION OF THE COMMITTEE ON THE JUDICIARY ON S. 1832, 81ST
CONG., 1ST SESS. 323.  WERE THE DEPORTEE TO CEASE THE ACTIVITY, NO
DOUBT HIS NATIVE LAND WOULD ISSUE THE REQUISITE VISA AND DEAL WITH HIM
WHEN HE WAS RETURNED. 

IN OUR VIEW THE POWER OF THE CONGRESS WITH RESPECT TO ALIENS IS
EXCEEDINGLY BROAD.  NOTHING POINTS THIS OUT MORE FORCIBLY THAN OUR OWN
CASES.  CONGRESS MAY EXPEL ANY NONCITIZEN IT MAY DETERMINE IS
UNDESIRABLE.  THE POWER GIVEN HERE IS MERELY SUPPLEMENTAL TO THAT OF
EXPULSION AND IS A NECESSARY CONCOMITANT THEREOF UNDER THE
CIRCUMSTANCES HERE PRESENTED.  IT GIVES TO THE ATTORNEY GENERAL
SUPERVISION OF ALIEN DEPORTEES WHOSE PAST RECORD DISCLOSES ACTIVITIES
DANGEROUS TO OUR PEOPLE.  THE APPELLEE DOES NOT CONTEST THE CHARGE AS
TO HIS PAST ACTIVITIES.  AS WE SEE IT, THE CONGRESS HAS MERELY PROVIDED
LIMITED SUPERVISION WHICH MIGHT PREVENT THE ALIEN FROM RESUMING THE
ACTIVITY WHICH BROUGHT ON HIS ORDERED DEPORTATION.  IT MAY TURN OUT
THAT FURTHER LIMITED SUPERVISORY PRECAUTIONS NEED NOT BE EXERCISED OVER
APPELLEE.  HOWEVER, WE ARE IN NO POSITION TO KNOW.  THE ATTORNEY
GENERAL HIMSELF DOES NOT KNOW BECAUSE HE WAS PREVENTED FROM REQUIRING
THE ALIEN TO GIVE HIM THE INFORMATION.   IT IS VITAL TO EFFECTIVE
SUPERVISION BY THE ATTORNEY GENERAL FOR HIM TO HAVE THE INFORMATION HE
SOUGHT HERE.  WE BELIEVE THAT THE COUNTERBALANCING NECESSITY OF
PREVENTING FURTHER DETRIMENTAL CONDUCT, OR AT LEAST PROVIDING THE
AUTHORITIES CHARGED WITH THE INTERNAL SECURITY OF OUR COUNTRY WITH SOME
WARNING SIGNAL OF IT, SUBSTANTIALLY OUTWEIGHS "ISSUES TOUCHING
LIBERTIES" WHICH MIGHT BE RAISED BY THE INTERROGATION.  LIKE "THE
POLICE ESTABLISHMENT OF FIRE LINES DURING A FIRE  ...  THE VALIDITY OF
THE RESTRAINTS  ...  DEPENDS ON ALL THE CONDITIONS WHICH OBTAIN AT THE
TIME  ... ."  HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 99 (1943). 
TO US JAILING ALIEN DEPORTEES ON THE BASIS OF OUR SAFETY PENDING
DEPORTATION PROCEEDINGS AS WELL AS FOR SIX MONTHS THEREAFTER,
ADMITTEDLY VALID, IS LARGELY FUTILE IF THE ATTORNEY GENERAL CANNOT
SUBSEQUENTLY SUPERVISE THEM EFFECTIVELY.  CERTAINLY THE CONGRESS
INTENDED NO SUCH STULTIFICATION. 

WE REGRET THAT THE COURT HAS USED THE RULE OF AVOIDANCE OF
CONSTITUTIONAL ISSUES TO STRIP THE ATTORNEY GENERAL OF THIS IMPORTANT
POWER SO NECESSARY IN THE PERFORMANCE OF HIS DUTY TO PROTECT OUR
INTERNAL SECURITY. 

FN1  THE ALIEN REGISTRATION FORM INCLUDES A LONG SERIES OF QUESTIONS
REQUIRING ANSWER UNDER OATH BY THE ALIEN.  IT COVERS VIRTUALLY EVERY
TYPE OF QUESTION INVOLVED HERE, EXCEPT THOSE DIRECTED AT WHETHER THE
APPELLEE KNEW A SPECIFIC PERSON.  ONE OF THE QUESTIONS REQUIRES
DISCLOSURE OF THE ALIEN'S PARTICIPATION IN CLUBS, ORGANIZATIONS, OR
SOCIETIES; ANOTHER IS DIRECTED AT ANY CRIMINAL CONVICTIONS OF THE ALIEN
EITHER IN OR OUTSIDE OF THE UNITED STATES; STILL ANOTHER INQUIRES AS TO
THE ALIEN'S AFFILIATION OR ACTIVITY IN ORGANIZATIONS INFLUENCING OR
FURTHERING IN ANY WAY THE POLITICAL ACTIVITIES, PUBLIC RELATIONS, OR
PUBLIC POLICY OF A FOREIGN GOVERNMENT. 

FN2  THE PRESIDENT IN HIS MESSAGE TO THE CONGRESS EXPLAINING HIS VETO
OF THE INTERNAL SECURITY ACT OF 1950 STATED THAT HE WOULD "BE GLAD TO
APPROVE" SEC. 23, THE FORERUNNER OF THE SECTION HERE INVOLVED,
"ALTHOUGH THE LANGUAGE OF SEC. 23 IS IN SOME RESPECTS WEAKER THAN IS
DESIRABLE."  H.R. DOC. NO. 708, 81ST CONG., 2D SESS. 3. 

FN3  S. 4130, 81ST CONG., 2D SESS.  THIS SUBSTITUTE WAS PROPOSED BY
SENATORS BENTON, DOUGLAS, GRAHAM, HUMPHREY, KEFAUVER, LEHMAN, AND THE
CHAIRMAN OF THE SENATE JUDICIARY COMMITTEE, SENATOR KILGORE.  FOR A
DISCUSSION OF THE EFFECT OF THE BILL ON THE PROBLEM HERE PRESENTED SEE
THE REMARKS OF SENATOR HUMPHREY AT 96 CONG. REC. 14486. 
..END :
















UNITED STATES FOR THE BENEFIT OF SHERMAN, TRUSTEES, V. CARTER, DBA
CARTER CONSTRUCTION CO. 353 U.S. 210 


NO. 48.  ARGUED DECEMBER 5, 1956 - DECIDED APRIL 29, 1957 - 229 F.2D
645, REVERSED AND REMANDED. 


AS REQUIRED BY THE MILLER ACT, A CONTRACTOR WHO HAD A CONTRACT WITH
THE UNITED STATES FOR THE CONSTRUCTION OF FEDERAL BUILDINGS FURNISHED A
PAYMENT BOND WITH A SURETY.  THE COLLECTIVE-BARGAINING CONTRACT UNDER
WHICH EMPLOYEES OF THE CONTRACTOR WERE HIRED OBLIGATED THE CONTRACTOR
TO PAY THEM WAGES AT SPECIFIED RATES AND, IN ADDITION, TO PAY 7 1/2
CENTS PER HOUR OF THEIR LABOR TO THE TRUSTEES OF A HEALTH AND WELFARE
FUND ESTABLISHED FOR THEIR BENEFIT AND THAT OF OTHER CONSTRUCTION
WORKERS.  WHEN THE CONTRACTOR FAILED TO PAY IN FULL THE REQUIRED
CONTRIBUTIONS TO THE HEALTH AND WELFARE FUND, THE TRUSTEES OF THE FUND
SUED (IN THE NAME OF THE UNITED STATES) THE SURETY TO RECOVER THE
BALANCE DUE THE FUND, PLUS LIQUIDATED DAMAGES, ATTORNEYS' FEES, COURT
COSTS AND EXPENSES.  HELD:  THE SURETY WAS LIABLE UNDER SEC. 2(A) OF
THE MILLER ACT, 40 U.S.C. SEC. 270A.  PP. 211-221. 

(A)  THE SURETY'S LIABILITY ON A MILLER ACT BOND MUST BE AT LEAST
COEXTENSIVE WITH THE OBLIGATIONS IMPOSED BY THE ACT IF THE BOND IS TO
HAVE ITS INTENDED EFFECT.  PP. 215-216. 

(B)  IN THIS CASE, THE TRUSTEES' RIGHTS AGAINST THE SURETY DEPEND
UPON, AND ARE TO BE MEASURED BY, THE APPLICABLE PROVISIONS OF SEC. 2(A)
OF THE ACT.  P. 216. 

(C)  THE MILLER ACT IS TO BE GIVEN A LIBERAL CONSTRUCTION TO
EFFECTUATE ITS PROTECTIVE PURPOSES.  P. 216. 

(D)  THE ESSENCE OF THE POLICY OF THE MILLER ACT IS TO PROVIDE A
SURETY WHO, BY FORCE OF THE ACT, MUST MAKE GOOD THE OBLIGATIONS OF A
DEFAULTING CONTRACTOR TO HIS SUPPLIERS OF LABOR AND MATERIAL.  PP. 216
217. 

(E)  THE MILLER ACT DOES NOT LIMIT RECOVERY ON THE STATUTORY BOND TO
"WAGES."  P. 217. 

(F)  THE CONTRACTOR'S EMPLOYEES WILL NOT HAVE BEEN "PAID IN FULL" FOR
THEIR LABOR IN ACCORDANCE WITH THE COLLECTIVE-BARGAINING AGREEMENTS
UNTIL THE REQUIRED CONTRIBUTIONS TO THE HEALTH AND WELFARE FUND HAVE
BEEN MADE.  PP. 217-218. 

(G)  THE CONTRACTOR'S OBLIGATION TO CONTRIBUTE TO THE FUND WAS
COVERED BY THE STATUTORY BOND, EVEN THOUGH THAT OBLIGATION WAS NOT SET
FORTH IN THE CONSTRUCTION CONTRACT WITH THE UNITED STATES BUT APPEARED
ONLY IN THE MASTER LABOR AGREEMENTS.  P. 218. 

(H)  IN THE CIRCUMSTANCES HERE, THE TRUSTEES STAND IN THE SHOES OF
THE EMPLOYEES AND ARE ENTITLED TO ENFORCE THEIR RIGHTS.  PP. 218-220. 

(I)  THE TRUSTEES OF THE FUND HAVE AN EVEN BETTER RIGHT TO SUE ON THE
BOND THAN DOES THE USUAL ASSIGNEE, SINCE THEY ARE CLAIMING RECOVERY FOR
THE SOLE BENEFIT OF BENEFICIARIES OF THE FUND, AND THOSE BENEFICIARIES
ARE THE VERY ONES WHO HAVE PERFORMED THE LABOR.  P. 220. 

(J)  FOR PURPOSES OF THE MILLER ACT, CONTRIBUTIONS TO THE FUND ARE IN
SUBSTANCE AS MUCH "JUSTLY DUE" TO THE EMPLOYEES WHO HAVE EARNED THEM AS
ARE THE WAGES PAID TO THEM DIRECTLY IN CASH.  P. 220. 

(K)  THE TRUSTEES ARE ALSO ENTITLED, UNDER THE ACT, TO RECOVER
LIQUIDATED DAMAGES, ATTORNEYS' FEES, COURT COSTS, AND OTHER RELATED
EXPENSES OF THIS LITIGATION, SINCE THESE ITEMS MUST BE INCLUDED IF THE
EMPLOYEES ARE TO BE "PAID IN FULL" THE "SUMS JUSTLY DUE" THEM.  P.
220. 

UNITED STATES FOR THE BENEFIT OF SHERMAN ET AL., TRUSTEES, V. CARTER ET
AL., DOING BUSINESS AS CARTER CONSTRUCTION CO., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE EXTENT OF THE LIABILITY OF THE SURETY ON A
PAYMENT BOND FURNISHED BY A CONTRACTOR, AS REQUIRED BY THE MILLER ACT,
FOR THE PROTECTION OF PERSONS SUPPLYING LABOR FOR THE CONSTRUCTION OF
FEDERAL PUBLIC BUILDINGS.  (FN1)  THE COLLECTIVE-BARGAINING CONTRACT
UNDER WHICH THE LABORERS WERE HIRED OBLIGATED THE CONTRACTOR TO PAY
THEM WAGES AT SPECIFIED RATES AND, IN ADDITION, TO PAY 7 1/2 CENTS PER
HOUR OF THEIR LABOR TO THE TRUSTEES OF A HEALTH AND WELFARE FUND
ESTABLISHED FOR THEIR BENEFIT AND THAT OF OTHER CONSTRUCTION WORKERS. 
WHEN THE CONTRACTOR FAILED TO PAY IN FULL THE REQUIRED CONTRIBUTIONS TO
THE HEALTH AND WELFARE FUND, THE TRUSTEES OF THE FUND SUED THE SURETY
ON THE CONTRACTOR'S PAYMENT BOND TO RECOVER THE BALANCE DUE THE FUND,
PLUS LIQUIDATED DAMAGES, ATTORNEYS' FEES, COURT COSTS AND EXPENSES. 
FOR THE REASONS HEREAFTER STATED, WE HOLD THAT SEC. 2(A) OF THE MILLER
ACT IMPOSES LIABILITY ON THE SURETY. 

IN NOVEMBER 1952, THE RESPONDENT CONTRACTOR, DONALD G. CARTER,
CONTRACTED WITH THE UNITED STATES TO CONSTRUCT CERTAIN PUBLIC BUILDINGS
AT AIR FORCE BASES IN CALIFORNIA.  AS REQUIRED BY THE MILLER ACT, HE
FILED PERFORMANCE AND PAYMENT BONDS EXECUTED BY THE RESPONDENT,
HARTFORD ACCIDENT AND INDEMNITY COMPANY, AS SURETY.  THE PAYMENT BOND
WAS IN THE PENAL SUM OF $52,434.30, AND PROVIDED THAT THE OBLIGATION OF
THE SURETY SHALL BE VOID "IF THE PRINCIPAL SHALL PROMPTLY MAKE PAYMENT
TO ALL PERSONS SUPPLYING LABOR AND MATERIAL IN THE PROSECUTION OF THE
WORK PROVIDED FOR IN SAID CONTRACT ...  OTHERWISE TO REMAIN IN FULL
FORCE  ...  ." 

THE TERMS UNDER WHICH CARTER EMPLOYED LABORERS FOR THE PROSECUTION OF
THE WORK WERE PRESCRIBED IN MASTER LABOR AGREEMENTS GOVERNING THE
CONDITIONS OF EMPLOYMENT IN THE CONSTRUCTION INDUSTRY IN 46 COUNTIES OF
NORTHERN CALIFORNIA.  THOSE AGREEMENTS HAD BEEN NEGOTIATED IN JUNE 1952
THROUGH COLLECTIVE BARGAINING BETWEEN THE LOCAL COUNCIL OF A LABOR
UNION REPRESENTING CONSTRUCTION WORKERS AND SEVERAL ASSOCIATIONS OF
EMPLOYERS, ONE OF WHICH ACTED AS AN AGENT FOR CARTER.  THE AGREEMENTS
OBLIGATED CARTER TO PAY WAGES TO HIS EMPLOYEES AT SPECIFIED RATES WHICH
WERE TO BE NOT LESS THAN THE PREVAILING RATES DETERMINED BY THE
GOVERNMENT.  THE AGREEMENTS REQUIRED ALSO THAT, BEGINNING FEBRUARY 1,
1953, CARTER WAS TO PAY TO THE TRUSTEES OF A HEALTH AND WELFARE FUND 7
1/2 CENTS FOR EACH HOUR WORKED BY HIS CONSTRUCTION EMPLOYEES. 

THE SPECIFIED FUND WAS ESTABLISHED BY A TRUST AGREEMENT DATED MARCH
4, 1953, AND NEGOTIATED BY THE PARTIES TO THE MASTER LABOR AGREEMENTS. 
ITS PERTINENT PROVISIONS WERE AS FOLLOWS:  THE FUND WAS TO BE
ADMINISTERED BY A BOARD OF TRUSTEES REPRESENTING EMPLOYERS AND
EMPLOYEES.  THE TRUSTEES WERE AUTHORIZED TO USE EMPLOYER CONTRIBUTIONS
TO PURCHASE VARIOUS TYPES OF INSURANCE, SUCH AS LIFE, ACCIDENTAL DEATH,
HOSPITALIZATION AND SURGICAL BENEFIT POLICIES, WITH ELIGIBLE EMPLOYEES
AND THEIR DEPENDENTS AS THE BENEFICIARIES.  (FN2)  THE EMPLOYEES HAD NO
RIGHTS TO THE INSURANCE BENEFITS EXCEPT AS PROVIDED IN THE POLICIES. 
ALSO, THEY HAD NO RIGHT, TITLE OR INTEREST IN THE CONTRIBUTIONS, AND IT
WAS EXPRESSLY STATED THAT THE CONTRIBUTIONS "SHALL NOT CONSTITUTE OR BE
DEEMED TO BE WAGES" DUE THE EMPLOYEES. 

THE TRUSTEES HAD THE SOLE POWER TO DEMAND AND ENFORCE PROMPT PAYMENT
OF EMPLOYER CONTRIBUTIONS.  THOSE CONTRIBUTIONS WERE PAYABLE IN MONTHLY
INSTALLMENTS.  ANY INSTALLMENT NOT PAID BY THE 25TH OF THE MONTH IN
WHICH IT CAME DUE WAS DELINQUENT, AND THE SUM OF $20 PER DELINQUENCY OR
10% OF THE AMOUNT DUE, WHICHEVER WAS GREATER, WAS OWED BY THE
DELINQUENT EMPLOYER AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.  IF THE
TRUSTEES FILED SUIT TO SECURE PAYMENT OF ANY INSTALLMENTS, THE
DEFAULTING EMPLOYER WAS TO PAY THE REASONABLE ATTORNEYS' FEES, COURT
COSTS AND ALL OTHER REASONABLE EXPENSES OF THE TRUSTEES INCURRED IN THE
LITIGATION. 

CARTER BECAME INSOLVENT AFTER COMPLETING THE CONSTRUCTION WORK AND
PAYING HIS EMPLOYEES THE WAGES PAYABLE DIRECTLY TO THEM.  HOWEVER, HE
FAILED TO MAKE HIS REQUIRED CONTRIBUTIONS TO THE FUND FOR FEBRUARY,
MARCH AND APRIL 1953.  PURSUANT TO SEC. 2(B) OF THE MILLER ACT, THE
TRUSTEES OF THE FUND, IN THE NAME OF THE UNITED STATES, INSTITUTED THIS
ACTION ON THE PAYMENT BOND AGAINST CARTER AND HIS SURETY IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.  THE
COMPLAINT SOUGHT RECOVERY OF THE UNPAID CONTRIBUTIONS AND THE
PRESCRIBED LIQUIDATED DAMAGES, ATTORNEYS' FEES, COURT COSTS AND
EXPENSES, IN THE TOTAL AMOUNT OF ABOUT $500.  THE FACTS WERE STIPULATED
AND THE COURT, AFTER HEARING, GRANTED THE SURETY'S MOTION FOR SUMMARY
JUDGMENT.  THE COURT OF APPEALS AFFIRMED, HOLDING THAT THE TRUSTEES HAD
NO RIGHT TO SUE ON THE BOND UNDER SEC. 2(A) OF THE ACT, SINCE THEY WERE
NEITHER PERSONS WHO HAD FURNISHED LABOR OR MATERIAL, NOR WERE THEY
SEEKING SUMS "JUSTLY DUE" SUCH PERSONS.  229 F.2D 645.  WE GRANTED
CERTIORARI TO RESOLVE THE QUESTIONS OF STATUTORY CONSTRUCTION WHICH ARE
AT ISSUE.  351 U.S. 917. 

EXCEEDING $2,000 FOR THE CONSTRUCTION OF ANY PUBLIC WORK OF THE UNITED
STATES IS AWARDED TO ANY PERSON, SUCH PERSON SHALL FURNISH TO THE
UNITED STATES A PAYMENT BOND WITH A SATISFACTORY SURETY "FOR THE
PROTECTION OF ALL PERSONS SUPPLYING LABOR AND MATERIAL IN THE
PROSECUTION OF THE WORK PROVIDED FOR IN SAID CONTRACT ...  ."  49 STAT.
793, 40 U.S.C. SEC. 270A(2).  SECTION 2(A), WHICH IS AT ISSUE HERE,
PROVIDES THAT "EVERY PERSON WHO HAS FURNISHED LABOR OR MATERIAL IN THE
PROSECUTION OF THE WORK PROVIDED FOR IN SUCH CONTRACT  ...  AND WHO HAS
NOT BEEN PAID IN FULL THEREFOR  ...  SHALL HAVE THE RIGHT TO SUE ON
SUCH PAYMENT BOND  ...  FOR THE SUM OR SUMS JUSTLY DUE HIM  ...  ."  49
STAT. 794, 40 U.S.C. SEC. 270BA). 

THE SURETY'S LIABILITY ON A MILLER ACT BOND MUST BE AT LEAST
COEXTENSIVE WITH THE OBLIGATIONS IMPOSED BY THE ACT IF THE BOND IS TO
HAVE ITS INTENDED EFFECT.  THE BOND INVOLVED HERE WAS FURNISHED TO MEET
THE STATUTORY REQUIREMENTS OF THE ACT AND APPEARS, ON ITS FACE, TO
COMPLY WITH THESE REQUIREMENTS.  THERE IS NO INDICATION THAT THE
COVERAGE OF THE BOND WAS INTENDED TO EXCEED THEM.  THE BOND INSURES
PROMPT PAYMENT "TO ALL PERSONS SUPPLYING LABOR AND MATERIAL IN THE
PROSECUTION OF THE WORK PROVIDED FOR IN SAID CONTRACT  ...  ."  THE
TRUSTEES' RIGHTS AGAINST THE SURETY DEPEND UPON, AND ARE TO BE MEASURED
BY, THE APPLICABLE PROVISIONS OF SEC. 2(A) OF THE ACT. 

WHILE THE PRECISE QUESTIONS OF STATUTORY CONSTRUCTION NOW PRESENTED
ARE ONES OF FIRST IMPRESSION, PRIOR DECISIONS OF THIS COURT CONSTRUING
THE MILLER ACT OF 1935 AND ITS PREDECESSOR, THE HEARD ACT OF 1894,
(FN3) INDICATE THAT THE MILLER ACT SHOULD RECEIVE A LIBERAL
CONSTRUCTION TO EFFECTUATE ITS PROTECTIVE PURPOSES. 

"THE MILLER ACT, LIKE THE HEARD ACT, IS HIGHLY REMEDIAL IN NATURE. 
IT IS ENTITLED TO A LIBERAL CONSTRUCTION AND APPLICATION IN ORDER
PROPERLY TO EFFECTUATE THE CONGRESSIONAL INTENT TO PROTECT THOSE WHOSE
LABOR AND MATERIALS GO INTO PUBLIC PROJECTS.  FLEISHER ENGINEERING CO.
V. UNITED STATES, 311 U.S. 15, 17, 18; CF. UNITED STATES V. IRWIN, 316
U.S. 23, 29, 30.  BUT SUCH A SALUTARY POLICY DOES NOT JUSTIFY IGNORING
PLAIN WORDS OF LIMITATION AND IMPOSING WHOLESALE LIABILITY ON PAYMENT
BONDS."  CLIFFORD F. MACEVOY CO. V. UNITED STATES, 322 U.S. 102, 107. 

THE MILLER ACT REPRESENTS A CONGRESSIONAL EFFORT TO PROTECT PERSONS
SUPPLYING LABOR AND MATERIAL FOR THE CONSTRUCTION OF FEDERAL PUBLIC
BUILDINGS IN LIEU OF THE PROTECTION THEY MIGHT RECEIVE UNDER STATE
STATUTES WITH RESPECT TO THE CONSTRUCTION OF NONFEDERAL BUILDINGS.  THE
ESSENCE OF ITS POLICY IS TO PROVIDE A SURETY WHO, BY FORCE OF THE ACT,
MUST MAKE GOOD THE OBLIGATIONS OF A DEFAULTING CONTRACTOR TO HIS
SUPPLIERS OF LABOR AND MATERIAL.  THUS THE ACT PROVIDES A BROAD BUT NOT
UNLIMITED PROTECTION.  (FN4) 

IT IS UNDISPUTED THAT IF THE COLLECTIVE-BARGAINING AGREEMENT HAD
REQUIRED THE CONTRACTOR TO PAY EACH EMPLOYEE 7 1/2 CENTS PER HOUR ABOVE
THE PREVAILING WAGE RATE, AND THE EMPLOYEE HAD, BY CONTRACT WITH HIS
BARGAINING REPRESENTATIVE, AGREED TO CONTRIBUTE THAT SUM TO THE FUND,
THE SURETY WOULD HAVE BEEN OBLIGATED TO MAKE GOOD ANY DEFAULT IN THE
CONTRACTOR'S PAYMENT OF THAT EXTRA 7 1/2 CENTS PER HOUR.  THE SURETY
ARGUES THAT EMPLOYER CONTRIBUTIONS MADE DIRECTLY TO A HEALTH AND
WELFARE FUND SHOULD BE TREATED DIFFERENTLY.  IT CONTENDS THAT, UNDER
THE PROVISIONS OF THE TRUST AGREEMENT, THE UNPAID CONTRIBUTIONS ARE NOT
"WAGES" DUE TO CARTER'S EMPLOYEES, AND THAT THE EMPLOYEES, HAVING
RECEIVED ALL THE "WAGES" OWED TO THEM, HAVE BEEN "PAID IN FULL" AS THAT
TERM IS USED IN SEC. 2(A) OF THE ACT.  THE ACT, HOWEVER, DOES NOT LIMIT
RECOVERY ON THE STATUTORY BOND TO "WAGES."  THE PARTIES HAVE STIPULATED
THAT CONTRIBUTIONS TO THE FUND WERE PART OF THE CONSIDERATION CARTER
AGREED TO PAY FOR THE SERVICES OF LABORERS ON HIS CONSTRUCTION JOBS. 
THE UNPAID CONTRIBUTIONS WERE A PART OF THE COMPENSATION FOR THE WORK
TO BE DONE BY CARTER'S EMPLOYEES.  THE RELATION OF THE CONTRIBUTIONS TO
THE WORK DONE IS EMPHASIZED BY THE FACT THAT THEIR AMOUNT WAS MEASURED
BY THE EXACT NUMBER OF HOURS EACH EMPLOYEE PERFORMED SERVICES FOR
CARTER.  NOT UNTIL THE REQUIRED CONTRIBUTIONS HAVE BEEN MADE WILL
CARTER'S EMPLOYEES HAVE BEEN "PAID IN FULL" FOR THEIR LABOR IN
ACCORDANCE WITH THE COLLECTIVE-BARGAINING AGREEMENTS. 

THE SURETY SUGGESTS THAT CARTER'S OBLIGATION TO CONTRIBUTE TO THE
FUND WAS NOT COVERED BY THE STATUTORY BOND BECAUSE THAT OBLIGATION WAS
NOT SET FORTH IN HIS CONSTRUCTION CONTRACT WITH THE UNITED STATES, BUT
APPEARED ONLY IN THE MASTER LABOR AGREEMENTS.  THOSE LABOR AGREEMENTS
WERE ALSO THE SOURCE OF CARTER'S OBLIGATION TO PAY THE "WAGES" PAYABLE
DIRECTLY TO HIS EMPLOYEES, AN OBLIGATION CONCEDEDLY GUARANTEED BY THE
BOND.  NOTHING IN THE MILLER ACT RESTRICTED THE OBLIGATIONS OF THE
SURETY TO WHAT WAS SET FORTH SPECIFICALLY IN CARTER'S AGREEMENT WITH
THE UNITED STATES.  IN FACT, THE SURETY'S OBLIGATIONS EXTENDED TO SOME
PERSONS WHO HAD NO CONTRACTUAL RELATIONSHIP WITH CARTER.  FOR EXAMPLE,
PERSONS WHO CONTRIBUTED LABOR AND MATERIAL TO CARTER'S SUBCONTRACTORS
WERE ENTITLED TO THE ACT'S PROTECTION.  SEE THE MACEVOY CO. CASE,
SUPRA, AT 105, 107-108.  AS LONG AS CARTER'S OBLIGATIONS RELATING TO
COMPENSATION FOR LABOR HAVE NOT BEEN SATISFIED, HIS EMPLOYEES WILL NOT
HAVE BEEN "PAID IN FULL" AND THE MILLER ACT WILL NOT HAVE SERVED ITS
PURPOSE. 

THE SURETY ALSO ARGUES THAT THE TRUSTEES ARE NOT ENTITLED TO RECOVER
THE PROMISED CONTRIBUTIONS UNDER SEC. 2(A) OF THE MILLER ACT, SINCE
THEY ARE NEITHER PERSONS WHO HAVE FURNISHED LABOR OR MATERIAL, NOR ARE
THEY SEEKING "SUMS JUSTLY DUE" TO PERSONS WHO HAVE FURNISHED LABOR OR
MATERIAL.  AN ANSWER TO THIS CONTENTION IS FOUND IN CASES ARISING UNDER
THE HEARD ACT INVOLVING SUITS BY ASSIGNEES OF THE CLAIMS OF PERSONS
FURNISHING LABOR OR MATERIAL.  SUCH ASSIGNEES WERE NOT THE PERSONS WHO
HAD FURNISHED THE LABOR OR MATERIAL FOR WHICH THE CLAIMS WERE MADE. 
THEY DID NOT SEEK "SUMS JUSTLY DUE" TO PERSONS WHO HAD THEMSELVES
FURNISHED LABOR OR MATERIAL, SINCE THE ASSIGNMENTS HAD EXTINGUISHED THE
RIGHT WHICH THOSE PERSONS HAD TO THE PERFORMANCE OF THE CONTRACTORS'
OBLIGATION.  (FN5)  YET THESE CASES ESTABLISHED THAT ASSIGNEES OF THE
CLAIMS OF PERSONS FURNISHING LABOR OR MATERIAL CAME WITHIN THE
PROTECTION OF THE STATUTORY BOND.  (FN6)  IT WAS POINTED OUT THAT A
DENIAL OF AN ASSIGNEE'S RIGHT TO SUE ON THE BOND MIGHT DEPRIVE THOSE
FOR WHOM THE SECURITY WAS INTENDED OF A FAIR CHANCE TO REALIZE UPON
THEIR CLAIMS BY ASSIGNMENT.  (FN7)  THERE IS NOTHING IN THE LANGUAGE,
LEGISLATIVE HISTORY, OR RELATED DECISIONS TO INDICATE THAT CONGRESS
INTENDED TO OVERTURN THESE CASES WHEN IT REPLACED THE HEARD ACT WITH
THE BROADER AND MORE LIBERAL PROVISIONS OF THE MILLER ACT.  (FN8) 

IF THE ASSIGNEE OF AN EMPLOYEE CAN SUE ON THE BOND, THE TRUSTEES OF
THE EMPLOYEES' FUND SHOULD BE ABLE TO DO SO.  WHETHER THE TRUSTEES OF
THE FUND ARE, IN A TECHNICAL SENSE, ASSIGNEES OF THE EMPLOYEES' RIGHTS
TO THE CONTRIBUTIONS NEED NOT BE DECIDED.  SUFFICE IT TO SAY THAT THE
TRUSTEES' RELATIONSHIP TO THE EMPLOYEES, AS ESTABLISHED BY THE MASTER
LABOR AGREEMENTS AND THE TRUST AGREEMENT, IS CLOSELY ANALOGOUS TO THAT
OF AN ASSIGNMENT.  THE MASTER LABOR AGREEMENTS NOT ONLY CREATED
CARTER'S OBLIGATION TO MAKE THE SPECIFIED CONTRIBUTIONS, BUT
SIMULTANEOUSLY CREATED THE RIGHT OF THE TRUSTEES TO COLLECT THOSE
CONTRIBUTIONS ON BEHALF OF THE EMPLOYEES.  THE TRUST AGREEMENT GAVE THE
TRUSTEES THE EXCLUSIVE RIGHT TO ENFORCE PAYMENT.  THE TRUSTEES STAND IN
THE SHOES OF THE EMPLOYEES AND ARE ENTITLED TO ENFORCE THEIR RIGHTS. 

MOREOVER, THE TRUSTEES OF THE FUND HAVE AN EVEN BETTER RIGHT TO SUE
ON THE BOND THAN DOES THE USUAL ASSIGNEE SINCE THEY ARE NOT SEEKING TO
RECOVER ON THEIR OWN ACCOUNT.  THE TRUSTEES ARE CLAIMING RECOVERY FOR
THE SOLE BENEFIT OF THE BENEFICIARIES OF THE FUND, AND THOSE
BENEFICIARIES ARE THE VERY ONES WHO HAVE PERFORMED THE LABOR.  THE
CONTRIBUTIONS ARE THE MEANS BY WHICH THE FUND IS MAINTAINED FOR THE
BENEFIT OF THE EMPLOYEES AND OF OTHER CONSTRUCTION WORKERS.  FOR
PURPOSES OF THE MILLER ACT, THESE CONTRIBUTIONS ARE IN SUBSTANCE AS
MUCH "JUSTLY DUE" TO THE EMPLOYEES WHO HAVE EARNED THEM AS ARE THE
WAGES PAYABLE DIRECTLY TO THEM IN CASH.    THE TRUSTEES' CLAIM FOR
LIQUIDATED DAMAGES, ATTORNEYS' FEES, COURT COSTS AND OTHER RELATED
EXPENSES OF THIS LITIGATION HAS EQUAL MERIT.  THE CONTRACTOR'S
OBLIGATION TO PAY THESE ITEMS IS SET FORTH IN THE TRUST AGREEMENT.  IT
IS STIPULATED THAT THEY FORM A PART OF THE CONSIDERATION WHICH CARTER
AGREED TO PAY FOR SERVICES PERFORMED BY HIS EMPLOYEES.  IF THE
EMPLOYEES ARE TO BE "PAID IN FULL" THE "SUMS JUSTLY DUE" TO THEM, THESE
ITEMS MUST BE INCLUDED.  THEIR AMOUNT, HOWEVER, REMAINS TO BE
DETERMINED. 

WE HOLD THAT THE MILLER ACT MAKES THE SURETY LIABLE ON ITS PAYMENT
BOND FOR THE DELINQUENT CONTRIBUTIONS TO THE FUND, TOGETHER WITH THE
ADDITIONAL ITEMS ABOVE DESCRIBED.  THE JUDGMENT OF THE COURT OF
APPEALS, THEREFORE, IS REVERSED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER ACTION CONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  "  ...  (A) BEFORE ANY CONTRACT, EXCEEDING $2,000 IN AMOUNT, FOR
THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR
PUBLIC WORK OF THE UNITED STATES IS AWARDED TO ANY PERSON, SUCH PERSON
SHALL FURNISH TO THE UNITED STATES THE FOLLOWING BONDS, WHICH SHALL
BECOME BINDING UPON THE AWARD OF THE CONTRACT TO SUCH PERSON, WHO IS
HEREINAFTER DESIGNATED AS 'CONTRACTOR': 

"(1)  A PERFORMANCE BOND WITH A SURETY OR SURETIES SATISFACTORY TO
THE OFFICER AWARDING SUCH CONTRACT, AND IN SUCH AMOUNT AS HE SHALL DEEM
ADEQUATE, FOR THE PROTECTION OF THE UNITED STATES. 

"(2)  A PAYMENT BOND WITH A SURETY OR SURETIES SATISFACTORY TO SUCH
OFFICER FOR THE PROTECTION OF ALL PERSONS SUPPLYING LABOR AND MATERIAL
IN THE PROSECUTION OF THE WORK PROVIDED FOR IN SAID CONTRACT FOR THE
USE OF EACH SUCH PERSON  ...  . 

     *         *         *         *         * 

"SEC. 2.  (A)  EVERY PERSON WHO HAS FURNISHED LABOR OR MATERIAL IN
THE PROSECUTION OF THE WORK PROVIDED FOR IN SUCH CONTRACT, IN RESPECT
OF WHICH A PAYMENT BOND IS FURNISHED UNDER THIS ACT AND WHO HAS NOT
BEEN PAID IN FULL THEREFOR BEFORE THE EXPIRATION OF A PERIOD OF NINETY
DAYS AFTER THE DAY ON WHICH THE LAST OF THE LABOR WAS DONE OR PERFORMED
BY HIM OR MATERIAL WAS FURNISHED OR SUPPLIED BY HIM FOR WHICH SUCH
CLAIM IS MADE, SHALL HAVE THE RIGHT TO SUE ON SUCH PAYMENT BOND FOR THE
AMOUNT, OR THE BALANCE THEREOF, UNPAID AT THE TIME OF INSTITUTION OF
SUCH SUIT AND TO PROSECUTE SAID ACTION TO FINAL EXECUTION AND JUDGMENT
FOR THE SUM OR SUMS JUSTLY DUE HIM:  PROVIDED, HOWEVER, THAT ANY PERSON
HAVING DIRECT CONTRACTUAL RELATIONSHIP WITH A SUBCONTRACTOR BUT NO
CONTRACTUAL RELATIONSHIP EXPRESS OR IMPLIED WITH THE CONTRACTOR
FURNISHING SAID PAYMENT BOND SHALL HAVE A RIGHT OF ACTION UPON THE SAID
PAYMENT BOND UPON GIVING WRITTEN NOTICE TO SAID CONTRACTOR WITHIN
NINETY DAYS FROM THE DATE ON WHICH SUCH PERSON DID OR PERFORMED THE
LAST OF THE LABOR OR FURNISHED OR SUPPLIED THE LAST OF THE MATERIAL FOR
WHICH SUCH CLAIM IS MADE, STATING WITH SUBSTANTIAL ACCURACY THE AMOUNT
CLAIMED AND THE NAME OF THE PARTY TO WHOM THE MATERIAL WAS FURNISHED OR
SUPPLIED OR FOR WHOM THE LABOR WAS DONE OR PERFORMED  ...  . 

"(B)  EVERY SUIT INSTITUTED UNDER THIS SECTION SHALL BE BROUGHT IN
THE NAME OF THE UNITED STATES FOR THE USE OF THE PERSON SUING, IN THE
UNITED STATES DISTRICT COURT FOR ANY DISTRICT IN WHICH THE CONTRACT WAS
TO BE PERFORMED AND EXECUTED AND NOT ELSEWHERE, IRRESPECTIVE OF THE
AMOUNT IN CONTROVERSY IN SUCH SUIT, BUT NO SUCH SUIT SHALL BE COMMENCED
AFTER THE EXPIRATION OF ONE YEAR AFTER THE DATE OF FINAL SETTLEMENT OF
SUCH CONTRACT.  THE UNITED STATES SHALL NOT BE LIABLE FOR THE PAYMENT
OF ANY COSTS OR EXPENSES OF ANY SUCH SUIT."  49 STAT.  793, 794, 40
U.S.C. SECS. 270A(1)(2), 270B. 

FN2  THE TRUSTEES ESTABLISHED BY REGULATION THE REQUIREMENTS FOR
ELIGIBILITY FOR INSURANCE BENEFITS.  ANY EMPLOYEE IN THE BARGAINING
UNIT, WHETHER OR NOT A MEMBER OF THE LABORERS' UNION, COULD BECOME
ELIGIBLE.  EACH EMPLOYEE WAS GIVEN A CREDIT FOR EVERY HOUR HE WORKED
FOR AN EMPLOYER OBLIGATED TO CONTRIBUTE TO THE FUND.  ANY EMPLOYEE WHO
RECEIVED CREDITS FOR AT LEAST 400 HOURS IN A DESIGNATED SIX-MONTH
PERIOD WAS ENTITLED TO THE BENEFITS OF THE PLAN FOR THE SUCCEEDING SIX
MONTHS.  HIS ELIGIBILITY DURING THAT PERIOD DID NOT DEPEND ON HIS
FURTHER EMPLOYMENT IN THE CONSTRUCTION INDUSTRY. 

FN3  ACT OF AUGUST 13, 1894, 28 STAT. 278, AS AMENDED, 33 STAT. 811,
36 STAT. 1167.  SEE 40 U.S.C. (1934 ED.)  SEC.  270.

FN4  ONE LIMITATION, INAPPLICABLE HERE, COMES FROM THE PROVISO IN
SEC. 2(A).  SEE N. 1, SUPRA.  IN THE MACEVOY CO. CASE, SUPRA, THIS
COURT CONCLUDED THAT THE EFFECT OF THE PROVISO WAS TO LIMIT THE RIGHT
TO BRING SUIT ON THE BOND TO "(1) THOSE MATERIALMEN, LABORERS AND
SUBCONTRACTORS WHO DEAL DIRECTLY WITH THE PRIME CONTRACTOR AND (2)
THOSE MATERIALMEN, LABORERS AND SUB-SUBCONTRACTORS WHO, LACKING EXPRESS
OR IMPLIED CONTRACTUAL RELATIONSHIP WITH THE PRIME CONTRACTOR, HAVE
DIRECT CONTRACTUAL RELATIONSHIP WITH A SUBCONTRACTOR AND WHO GIVE THE
STATUTORY NOTICE OF THEIR CLAIMS TO THE PRIME CONTRACTOR."  322 U.S.,
AT 107-108.  HERE THE TRUSTEES OF THE FUND ARE CLAIMING SUMS ON BEHALF
OF WORKMEN WHO SUPPLIED LABOR FOR THE PROJECT DIRECTLY TO THE
CONTRACTOR UNDER AN EXPRESS CONTRACTUAL RELATIONSHIP WITH HIM. 

FN5  4 CORBIN, CONTRACTS (1951 ED.), SEC. 891; RESTATEMENT,
CONTRACTS, SEC. 150.  SEE ALSO, LOONEY V. DISTRICT OF COLUMBIA, 113
U.S. 258; BLAIR V. COMMISSIONER, 300 U.S. 5. 

FN6  TITLE GUARANTY & TRUST CO. V. CRANE CO., 219 U.S. 24, 35; U.S.
FIDELITY & GUARANTY CO. V. BARTLETT, 231 U.S. 237, 243; UNITED STATES
V. RUNDLE, 100 F. 400, 403; UNITED STATES V. BRENT, 236 F. 771, 777;
BARTLETT & KLING V. DINGS, 249 F. 322, 325. 

FN7  SEE UNITED STATES V. RUNDLE, SUPRA. 

FN8  SEE UNITED STATES V. CONN, 19 F.R.D. 274, 277.  IN CLIFFORD F.
MACEVOY CO. V. UNITED STATES, 322 U.S. 102, 105-106, THIS COURT
CONCLUDED THAT: 

"THE MILLER ACT, WHILE IT REPEALED THE HEARD ACT, REINSTATED ITS
BASIC PROVISIONS AND WAS DESIGNED PRIMARILY TO ELIMINATE CERTAIN
PROCEDURAL LIMITATIONS ON ITS BENEFICIARIES.  THERE WAS NO EXPRESSED
PURPOSE IN THE LEGISLATIVE HISTORY TO RESTRICT IN ANY WAY THE COVERAGE
OF THE HEARD ACT; THE INTENT RATHER WAS TO REMOVE THE PROCEDURAL
DIFFICULTIES FOUND TO EXIST UNDER THE EARLIER MEASURE AND THEREBY MAKE
IT EASIER FOR UNPAID CREDITORS TO REALIZE THE BENEFITS OF THE BOND." 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















FOURCO GLASS CO. V. TRANSMIRRA PRODUCTS CORP. 353 U.S. 222 


NO. 310.  ARGUED APRIL 2, 1957 - DECIDED APRIL 29, 1957 - 233 F.2D 885,
REVERSED AND REMANDED. 


1.  VENUE IN PATENT INFRINGEMENT ACTIONS IS GOVERNED EXCLUSIVELY BY 28
U.S.C. SEC. 1400(B), WHICH PROVIDES THAT ANY SUCH ACTION MAY BE BROUGHT
"IN THE JUDICIAL DISTRICT WHERE THE DEFENDANT RESIDES, OR WHERE THE
DEFENDANT HAS COMMITTED ACTS OF INFRINGEMENT AND HAS A REGULAR AND
ESTABLISHED PLACE OF BUSINESS"; AND 28 U.S.C. SEC. 1391(C) HAS NO
APPLICATION TO SUCH ACTIONS.  STONITE PRODUCTS CO. V. MELVIN LLOYD CO.,
315 U.S. 561.  PP. 222-229. 

2.  A PATENT INFRINGEMENT ACTION MAY NOT BE BROUGHT AGAINST A
CORPORATION IN A JUDICIAL DISTRICT IN WHICH IT IS NOT SHOWN TO HAVE
COMMITTED ANY OF THE ALLEGED ACTS OF INFRINGEMENT AND WHICH IS OUTSIDE
THE STATE WHERE IT WAS INCORPORATED, THOUGH IT HAS A REGULARLY
ESTABLISHED PLACE OF BUSINESS IN SUCH JUDICIAL DISTRICT.  PP. 222-229. 

3.  THE 1948 REVISION AND RECODIFICATION OF THE JUDICIAL CODE, 62
STAT. 869, MADE NO SUBSTANTIVE CHANGE IN SEC. 48 OF THE JUDICIAL CODE
WHEN IT RECODIFIED IT AS 28 U.S.C.  SEC. 1400(B).  PP. 225-228. 

FOURCO GLASS CO. V. TRANSMIRRA PRODUCTS CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER 28 U.S.C. SEC. 1400(B) IS THE SOLE
AND EXCLUSIVE PROVISION GOVERNING VENUE IN PATENT INFRINGEMENT ACTIONS,
OR WHETHER THAT SECTION IS SUPPLEMENTED BY 28 U.S.C. SEC. 1391(C). 

READS: 

"(B)  ANY CIVIL ACTION FOR PATENT INFRINGEMENT MAY BE BROUGHT IN THE
JUDICIAL DISTRICT WHERE THE DEFENDANT RESIDES, OR WHERE THE DEFENDANT
HAS COMMITTED ACTS OF INFRINGEMENT AND HAS A REGULAR AND ESTABLISHED
PLACE OF BUSINESS." 


"(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." 

PETITIONER, FOURCO GLASS COMPANY, A WEST VIRGINIA CORPORATION, WAS
SUED FOR PATENT INFRINGEMENT IN THE SOUTHERN DISTRICT OF NEW YORK.  IT
MOVED TO DISMISS FOR LACK OF VENUE, (FN1) BECAUSE, ALTHOUGH IT HAD A
REGULARLY ESTABLISHED PLACE OF BUSINESS IN THE DISTRICT OF SUIT, THERE
WAS NO SHOWING THAT IT HAD COMMITTED ANY OF THE ALLEGED ACTS OF
INFRINGEMENT THERE.  THE DISTRICT COURT HELD THAT THERE HAD BEEN NO
SHOWING OF ANY ACTS OF INFRINGEMENT IN THE DISTRICT OF SUIT AND THAT
VENUE IN PATENT INFRINGEMENT ACTIONS IS SOLELY AND EXCLUSIVELY GOVERNED
BY SEC. 1400(B), AS A SPECIAL AND SPECIFIC VENUE STATUTE APPLICABLE TO
THAT SPECIES OF LITIGATION.  IT ACCORDINGLY GRANTED THE MOTION AND
DISMISSED THE ACTION.  133 F. SUPP.  531.  THE COURT OF APPEALS,
WITHOUT PASSING ON THE DISTRICT COURT'S RULING THAT THERE HAD BEEN NO
SHOWING OF ACTS OF INFRINGEMENT IN THE DISTRICT OF SUIT, REVERSED, 233
F.2D 885, 886, HOLDING THAT PROPER CONSTRUCTION "REQUIRES  ...  THE
INSERTION IN" SEC. 1400(B) "OF THE DEFINITION OF CORPORATE RESIDENCE
FROM " SEC. 1391(C), AND THAT THE TWO SECTIONS, WHEN THUS "READ
TOGETHER," MEAN "THAT THIS DEFENDANT MAY BE SUED IN NEW YORK, WHERE IT
'IS DOING BUSINESS.'"  WE GRANTED CERTIORARI (FN2) BECAUSE OF AN
ASSERTED CONFLICT WITH THIS COURT'S DECISION IN STONITE PRODUCTS CO. V.
MELVIN LLOYD CO., 315 U.S. 561, AND TO RESOLVE A CONFLICT AMONG THE
CIRCUITS (FN3) UPON THE QUESTION OF VENUE IN PATENT INFRINGEMENT
LITIGATION. 

WE START OUR CONSIDERATIONS WITH THE STONITE CASE.  THE QUESTION
THERE - NOT LEGALLY DISTINGUISHABLE FROM THE QUESTION HERE - WAS
WHETHER THE VENUE STATUTE APPLYING SPECIFICALLY TO PATENT INFRINGEMENT
LITIGATION (THEN SEC. 48 OF THE JUDICIAL CODE, 28 U.S.C. (1940 ED.) 
SEC.  109) WAS THE SOLE PROVISION GOVERNING VENUE IN THOSE CASES, OR
WHETHER THAT SECTION WAS TO BE SUPPLEMENTED BY WHAT WAS THEN SEC. 52 OF
THE JUDICIAL CODE (28 U.S.C. (1940 ED.)  SEC.  113), WHICH AUTHORIZED -
JUST AS ITS RECODIFIED COUNTERPART, 28 U.S.C. SEC. 1392(A), DOES NOW -
AN ACTION, NOT OF A LOCAL NATURE, AGAINST TWO OR MORE DEFENDANTS
RESIDING IN DIFFERENT JUDICIAL DISTRICTS WITHIN THE SAME STATE, TO BE
BROUGHT IN EITHER DISTRICT.  THAT SUPPLEMENTATION, IF PERMISSIBLE,
WOULD HAVE FIXED VENUE OVER STONITE PRODUCTS COMPANY (AN INHABITANT OF
THE EASTERN DISTRICT OF PENNSYLVANIA) IN THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA, WHERE THE SUIT WAS BROUGHT, BECAUSE
ITS CODEFENDANT WAS AN INHABITANT OF THAT DISTRICT. 

AFTER REVIEWING THE HISTORY OF, AND THE REASONS AND PURPOSES FOR, THE
ADOPTION BY CONGRESS OF THE VENUE STATUTE APPLYING SPECIFICALLY TO
PATENT INFRINGEMENT SUITS - GROUND WHOLLY UNNECESSARY TO REPLOW HERE -
THIS COURT HELD "THAT SEC. 48 IS THE EXCLUSIVE PROVISION CONTROLLING
VENUE IN PATENT INFRINGEMENT PROCEEDINGS" AND "THAT CONGRESS DID NOT
INTEND THE ACT OF 1897 WHICH HAD BECOME SEC. 48 OF THE JUDICIAL CODE,
28 U.S.C. (1940 ED.)  SEC.  109 TO DOVETAIL WITH THE GENERAL PROVISIONS
RELATING TO THE VENUE OF CIVIL SUITS, BUT RATHER THAT IT ALONE SHOULD
CONTROL VENUE IN PATENT INFRINGEMENT PROCEEDINGS."  (FN4) 

THE SOUNDNESS OF THE STONITE CASE IS NOT HERE ASSAILED, AND, UNLESS
THERE HAS BEEN A SUBSTANTIVE CHANGE IN WHAT WAS SEC. 48 OF THE JUDICIAL
CODE AT THE TIME THE STONITE CASE WAS DECIDED, ON MARCH 9, 1942, IT IS
EVIDENT THAT THAT STATUTE WOULD STILL CONSTITUTE "THE EXCLUSIVE
PROVISION CONTROLLING VENUE IN PATENT INFRINGEMENT PROCEEDINGS." 

THE QUESTION HERE, THEN, IS SIMPLY WHETHER THERE HAS BEEN A
SUBSTANTIVE CHANGE IN THAT STATUTE SINCE THE STONITE CASE.  IF THERE
HAS BEEN SUCH CHANGE, IT OCCURRED IN THE 1948 REVISION AND
RECODIFICATION OF THE JUDICIAL CODE.  (FN5)  AT THE TIME OF THE STONITE
CASE THE VENUE PROVISIONS OF THAT STATUTE (SEC. 48 OF THE 1911 JUDICIAL
CODE, 28 U.S.C.  (1940 ED.)  SEC.  109) READ: 

"IN SUITS BROUGHT FOR THE INFRINGEMENT OF LETTERS PATENT THE DISTRICT
COURTS OF THE UNITED STATES SHALL HAVE JURISDICTION, IN LAW OR IN
EQUITY, IN THE DISTRICT OF WHICH THE DEFENDANT IS AN INHABITANT, OR IN
ANY DISTRICT IN WHICH THE DEFENDANT, WHETHER A PERSON, PARTNERSHIP, OR
CORPORATION, SHALL HAVE COMMITTED ACTS OF INFRINGEMENT AND HAVE A
REGULAR AND ESTABLISHED PLACE OF BUSINESS." 

THE REPORTS OF THE COMMITTEE ON THE JUDICIARY OF THE SENATE, (FN6)
AND OF THE HOUSE, (FN7) RESPECTING THE 1948 REVISION AND RECODIFICATION
OF THE JUDICIAL CODE, MAKE PLAIN THAT EVERY CHANGE MADE IN THE TEXT IS
EXPLAINED IN DETAIL IN THE REVISERS' NOTES.  AS SHOWN BY THEIR NOTES ON
SEC. 1400(B), THE REVISERS PLACED THE VENUE PROVISIONS (QUOTED ABOVE)
OF OLD SEC. 48 (28 U.S.C. (1940 ED.)  SEC.  109), WITH WORD CHANGES AND
OMISSIONS LATER NOTED, IN SEC. 1400(B), AND PLACED THE REMAINDER, OR
PROCESS PROVISIONS, WITH CERTAIN WORD CHANGES, IN SEC. 1694 OF THE 1948
CODE.  THE REVISERS' NOTES ON SEC. 1400(B) POINT OUT THAT "SUBSECTION
(B) IS BASED ON SECTION 109 OF TITLE 28, U.S.C., 1940 ED., WITH THE
FOLLOWING CHANGES:"  (1) "WORDS 'CIVIL ACTION' WERE SUBSTITUTED FOR
'SUIT,' AND WORDS 'IN LAW OR IN EQUITY,' AFTER 'SHALL HAVE
JURISDICTION' WERE DELETED, IN VIEW OF RULE 2 OF THE FEDERAL RULES OF
CIVIL PROCEDURE"; (2) "WORDS IN SUBSECTION (B) 'WHERE THE DEFENDANT
RESIDES' WERE SUBSTITUTED FOR 'OF WHICH THE DEFENDANT IS AN
INHABITANT'" BECAUSE THE "WORDS 'INHABITANT' AND 'RESIDENT,' AS
RESPECTS VENUE, ARE SYNONYMOUS" (WE PAUSE HERE TO OBSERVE THAT THIS
TREATMENT, AND THE EXPRESSED REASON FOR IT, SEEMS TO NEGATIVE ANY
INTENTION TO MAKE CORPORATIONS SUABLE, IN PATENT INFRINGEMENT CASES,
WHERE THEY ARE MERELY "DOING BUSINESS," BECAUSE THOSE SYNONYMOUS WORDS
MEAN DOMICILE, AND, IN RESPECT OF CORPORATIONS, MEAN THE STATE OF
INCORPORATION ONLY.  SEE SHAW V. QUINCY MINING CO., 145 U.S. 444); AND
(3) "WORDS 'WHETHER A PERSON, PARTNERSHIP, OR CORPORATION' BEFORE 'HAS
COMMITTED' WERE OMITTED AS SURPLUSAGE." 

STATEMENTS MADE BY SEVERAL OF THE PERSONS HAVING IMPORTANTLY TO DO
WITH THE 1948 REVISION ARE UNIFORMLY CLEAR THAT NO CHANGES OF LAW OR
POLICY ARE TO BE PRESUMED FROM CHANGES OF LANGUAGE IN THE REVISION
UNLESS AN INTENT TO MAKE SUCH CHANGES IS CLEARLY EXPRESSED.  (FN8) 

"THE CHANGE OF ARRANGEMENT, WHICH PLACED PORTIONS OF WHAT WAS
ORIGINALLY A SINGLE SECTION IN TWO SEPARATED SECTIONS CANNOT BE
REGARDED AS ALTERING THE SCOPE AND PURPOSE OF THE ENACTMENT.  FOR IT
WILL NOT BE INFERRED THAT CONGRESS, IN REVISING AND CONSOLIDATING THE
LAWS, INTENDED TO CHANGE THEIR EFFECT UNLESS SUCH INTENTION IS CLEARLY
EXPRESSED.  UNITED STATES V. RYDER, 110 U.S. 729, 740; UNITED STATES V.
LEBRIS, 121 U.S. 278, 280; LOGAN V. UNITED STATES, 144 U.S. 263, 302;
UNITED STATES V. MASON, 218 U.S. 517, 525."  ANDERSON V. PACIFIC COAST
S.S. CO., 225 U.S. 187, 198-199. 

IN THE LIGHT OF THE FACT THAT THE REVISERS' NOTES DO NOT EXPRESS ANY
SUBSTANTIVE CHANGE, AND OF THE FACT THAT SEVERAL OF THOSE HAVING
IMPORTANTLY TO DO WITH THE REVISION SAY NO CHANGE IS TO BE PRESUMED
UNLESS CLEARLY EXPRESSED, AND NO SUBSTANTIVE CHANGE BEING OTHERWISE
APPARENT, WE HOLD THAT 28 U.S.C. SEC. 1400(B) MADE NO SUBSTANTIVE
CHANGE FROM 28 U.S.C. (1940 ED.)  SEC.  109 AS IT STOOD AND WAS DEALT
WITH IN THE STONITE CASE. 

THE MAIN THRUST OF RESPONDENTS' ARGUMENT IS THAT SEC. 1391(C) IS
CLEAR AND UNAMBIGUOUS AND THAT ITS TERMS INCLUDE ALL ACTIONS -
INCLUDING PATENT INFRINGEMENT ACTIONS - AGAINST CORPORATIONS, AND,
THEREFORE, THAT THE STATUTE SHOULD BE READ WITH, AND AS SUPPLEMENTING,
SEC. 1400(B) IN PATENT INFRINGEMENT ACTIONS.  THAT ARGUMENT IS NOT
PERSUASIVE, AS IT MERELY POINTS UP THE QUESTION AND DOES NOTHING TO
ANSWER IT.  FOR IT WILL BE SEEN THAT SEC.  1400(B) IS EQUALLY CLEAR
AND, ALSO, THAT IT DEALS SPECIALLY AND SPECIFICALLY WITH VENUE IN
PATENT INFRINGEMENT ACTIONS.  MOREOVER, IT WILL BE REMEMBERED THAT OLD
SEC. 52 OF THE JUDICIAL CODE (28 U.S.C. (1940 ED.)  SEC.  113) WAS
LIKEWISE CLEAR AND GENERALLY EMBRACIVE, YET THE STONITE CASE HELD THAT
IT DID NOT SUPPLEMENT THE SPECIFIC PATENT INFRINGEMENT VENUE SECTION
(THEN SEC. 48 OF THE JUDICIAL CODE, 28 U.S.C. (1940 ED.)  SEC.  109).
THE QUESTION IS NOT WHETHER SEC. 1391(C) IS CLEAR AND GENERAL, BUT,
RATHER, IT IS, POINTEDLY, WHETHER SEC. 1391(C) SUPPLEMENTS SEC.
1400(B), OR, IN OTHER WORDS, WHETHER THE LATTER IS COMPLETE,
INDEPENDENT AND ALONE CONTROLLING IN ITS SPHERE AS WAS HELD IN STONITE,
OR IS, IN SOME MEASURE, DEPENDENT FOR ITS FORCE UPON THE FORMER. 

WE THINK IT IS CLEAR THAT SEC. 1391(C) IS A GENERAL CORPORATION VENUE
STATUTE, WHEREAS SEC. 1400(B) IS A SPECIAL VENUE STATUTE APPLICABLE,
SPECIFICALLY, TO ALL DEFENDANTS IN A PARTICULAR TYPE OF ACTIONS, I.E.,
PATENT INFRINGEMENT ACTIONS.  IN THESE CIRCUMSTANCES THE LAW IS SETTLED
THAT "HOWEVER INCLUSIVE MAY BE THE GENERAL LANGUAGE OF A STATUTE, IT
'WILL NOT BE HELD TO APPLY TO A MATTER SPECIFICALLY DEALT WITH IN
ANOTHER PART OF THE SAME ENACTMENT  ...  .  SPECIFIC TERMS PREVAIL OVER
THE GENERAL IN THE SAME OR ANOTHER STATUTE WHICH OTHERWISE MIGHT BE
CONTROLLING.'  GINSBERG & SONS V. POPKIN, 285 U.S. 204, 208."  MACEVOY
CO. V. UNITED STATES, 322 U.S. 102, 107. 

WE HOLD THAT 28 U.S.C. SEC. 1400(B) IS THE SOLE AND EXCLUSIVE
PROVISION CONTROLLING VENUE IN PATENT INFRINGEMENT ACTIONS, AND THAT IT
IS NOT TO BE SUPPLEMENTED BY THE PROVISIONS OF 28 U.S.C. SEC. 1391(C). 
THE JUDGMENT OF THE COURT OF APPEALS MUST THEREFORE BE REVERSED AND THE
CAUSE REMANDED FOR THAT COURT TO PASS UPON THE DISTRICT COURT'S RULING
THAT THERE HAD BEEN NO SHOWING OF ACTS OF INFRINGEMENT IN THE DISTRICT
OF SUIT.  REVERSED AND REMANDED. 

FN1  UNDER RULE 12(B)(3) OF FEDERAL RULES OF CIVIL PROCEDURE. 

FN2  352 U.S. 820. 

FN3  THE THIRD CIRCUIT, IN ACKERMAN V. HOOK, 183 F.2D 11, THE SEVENTH
CIRCUIT IN C-O-TWO FIRE EQUIPMENT CO. V. BARNES, 194 F.2D 410, AND THE
TENTH CIRCUIT, IN RUTH V. EAGLE-PICHER COMPANY, 225 F.2D 572, AS WELL
AS NUMEROUS DISTRICT COURTS, HAVE HELD THAT 28 U.S.C.  SEC. 1400(B)
ALONG CONTROLS VENUE IN PATENT INFRINGEMENT CASES, WHILE, ON THE OTHER
HAND, THE FIFTH CIRCUIT, IN DALTON V. SHAKESPEARE CO., 196 F.2D 469,
AND IN GUIBERSON CORP. V. GARRETT OIL TOOLS, INC., 205 F.2D 660, AND
SEVERAL DISTRICT COURTS, HAVE HELD THAT THE PROVISIONS OF 28 U.S.C.
SEC. 1391(C) ARE TO BE READ INTO, AND AS SUPPLEMENTING, SEC. 1400(B),
AS THE SECOND CIRCUIT HELD IN THIS CASE, AND THAT, HENCE, A CORPORATION
MAY BE SUED FOR PATENT INFRINGEMENT IN ANY DISTRICT WHERE IT MERELY "IS
DOING BUSINESS." 

FN4  315 U.S., AT 563-566. 

FN5  62 STAT. 869. 

FN6  S. REP. NO. 1559, 80TH CONG., 2D SESS., P. 2, WHICH CONTAINS THE
STATEMENT "APPENDED TO THE REPORT ARE THE REVISERS' NOTES TO EACH
DETAIL THE SOURCE OF THE LAW AND THE CHANGES MADE IN THE COURSE OF THE
CODIFICATION AND REVISION." 

FN7  H.R. REP. NO. 308, 80TH CONG., 1ST SESS., P. 7, WHICH CONTAINS
THE STATEMENT "THE REVISER'S NOTES ARE KEYED TO SECTIONS OF THE
REVISION AND EXPLAIN IN DETAIL EVERY CHANGE MADE IN TEXT." 

FN8  MR. WILLIAM W. BARRON, THE CHIEF REVISER OF THE CODE, IN HIS
ARTICLE ON "THE JUDICIAL CODE 1948 REVISION," 8 F.R.D. 439, POINTED
OUT, PP. 445-446, THAT:  "  ...  NO CHANGES OF LAW OR POLICY WILL BE
PRESUMED FROM CHANGES OF LANGUAGE IN REVISION UNLESS AN INTENT TO MAKE
SUCH CHANGES IS CLEARLY EXPRESSED.  MERE CHANGES OF PHRASEOLOGY
INDICATE NO INTENT TO WORK A CHANGE OF MEANING BUT MERELY AN EFFORT TO
STATE IN CLEAR AND SIMPLER TERMS THE ORIGINAL MEANING OF THE STATUTE
REVISED." 

PROFESSOR JAMES WILLIAM MOORE OF YALE UNIVERSITY, A SPECIAL
CONSULTANT ON THIS REVISION, STATED THAT: "VENUE PROVISIONS HAVE NOT
BEEN ALTERED BY THE REVISION."  HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF
THE HOUSE JUDICIARY COMMITTEE ON H.R. 1600 AND H.R. 2055, 80TH CONG.,
2D SESS., P. 1969. 

JUDGE ALBERT B. MARIS OF THE THIRD CIRCUIT, A MEMBER OF A COMMITTEE
OF THE JUDICIAL CONFERENCE OF THE UNITED STATES TO COLLABORATE WITH THE
CONGRESSIONAL COMMITTEES IN CARRYING FORWARD THE WORK OF THIS REVISION,
STATED THAT:  "CARE HAS BEEN TAKEN TO MAKE NO CHANGES IN THE EXISTING
LAWS WHICH WOULD NOT MEET WITH SUBSTANTIALLY UNANIMOUS APPROVAL."  ID.,
P. 1959.    MR. JUSTICE HARLAN, BELIEVING THAT THE REVISERS' NOTES HAVE
BEEN GIVEN UNDUE WEIGHT, EX PARTE COLLETT, 337 U.S. 55, 61-71, AND THAT
THEY ARE IN ANY EVENT UNCLEAR, DISSENTS FOR THE REASONS GIVEN BY THE
COURT OF APPEALS, 233 F.2D 885.  SEE ALSO DALTON V. SHAKESPEARE CO.,
196 F.2D 469; LINDLEY, C.J., DISSENTING IN C-O-TWO FIRE EQUIPMENT CO.
V. BARNES, 194 F.2D 410, 415; DENIS V. PERFECT PARTS, INC., 142 F.
SUPP. 259; MOORE, COMMENTARY ON THE U.S. JUDICIAL CODE, 184-185, 193
194. 
..END :








PENNSYLVANIA V. BOARD OF DIRECTORS OF CITY TRUSTS OF THE CITY OF
PHILADELPHIA 353 U.S. 230 


NO. 769.  DECIDED APRIL 29, 1957 - 386 PA. 548, 127 A.2D 287, REVERSED
AND REMANDED. 


BY WILL PROBATED IN 1831, STEPHEN GIRARD LEFT A FUND TO THE CITY OF
PHILADELPHIA IN TRUST FOR THE ERECTION, MAINTENANCE AND OPERATION OF A
"COLLEGE," PROVIDING THAT IT WAS TO ADMIT "AS MANY POOR WHITE MALE
ORPHANS, BETWEEN THE AGES OF SIX AND TEN YEARS, AS THE SAID INCOME
SHALL BE ADEQUATE TO MAINTAIN."  THE COLLEGE WAS ESTABLISHED AND IS NOW
BEING OPERATED BY A BOARD APPOINTED UNDER A PENNSYLVANIA STATUTE. 
HELD:  THE BOARD IS AN AGENCY OF THE STATE, AND ITS REFUSAL TO ADMIT
NEGRO BOYS TO THE COLLEGE SOLELY BECAUSE OF THEIR RACE VIOLATES THE
FOURTEENTH AMENDMENT.  BROWN V. BOARD OF EDUCATION, 347 U.S. 483.  PP.
230-231. 

PENNSYLVANIA ET AL. V. BOARD OF DIRECTORS OF CITY TRUSTS OF THE CITY OF
PHILADELPHIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT. 

PER CURIAM. 

THE MOTION TO DISMISS THE APPEAL FOR WANT OF JURISDICTION IS
GRANTED.  28 U.S.C. SEC.  1257(2).  TREATING THE PAPERS WHEREON THE
APPEAL WAS TAKEN AS A PETITION FOR WRIT OF CERTIORARI, 28 U.S.C. SEC.
2103, THE PETITION IS GRANTED.  28 U.S.C. SEC. 1257(3). 

STEPHEN GIRARD, BY A WILL PROBATED IN 1831, LEFT A FUND IN TRUST FOR
THE ERECTION, MAINTENANCE, AND OPERATION OF A "COLLEGE."  THE WILL
PROVIDED THAT THE COLLEGE WAS TO ADMIT "AS MANY POOR WHITE MALE
ORPHANS, BETWEEN THE AGES OF SIX AND TEN YEARS, AS THE SAID INCOME
SHALL BE ADEQUATE TO MAINTAIN."  THE WILL NAMED AS TRUSTEE THE CITY OF
PHILADELPHIA.  THE PROVISIONS OF THE WILL WERE CARRIED OUT BY THE STATE
AND CITY AND THE COLLEGE WAS OPENED IN 1848.  SINCE 1869, BY VIRTUE OF
AN ACT OF THE PENNSYLVANIA LEGISLATURE, THE TRUST HAS BEEN ADMINISTERED
AND THE COLLEGE OPERATED BY THE "BOARD OF DIRECTORS OF CITY TRUSTS OF
THE CITY OF PHILADELPHIA."  PA. LAWS 1869, NO. 1258, P. 1276; PURDON'S
PA. STAT. ANN., 1957, TIT. 53, SEC. 16365. 

IN FEBRUARY 1954, THE PETITIONERS FOUST AND FELDER APPLIED FOR
ADMISSION TO THE COLLEGE.  THEY MET ALL QUALIFICATIONS EXCEPT THAT THEY
WERE NEGROES.  FOR THIS REASON THE BOARD REFUSED TO ADMIT THEM.  THEY
PETITIONED THE ORPHANS' COURT OF PHILADELPHIA COUNTY FOR AN ORDER
DIRECTING THE BOARD TO ADMIT THEM, ALLEGING THAT THEIR EXCLUSION
BECAUSE OF RACE VIOLATED THE FOURTEENTH AMENDMENT TO THE CONSTITUTION. 
THE STATE OF PENNSYLVANIA AND THE CITY OF PHILADELPHIA JOINED IN THE
SUIT ALSO CONTENDING THE BOARD'S ACTION VIOALTED THE FOURTEENTH
AMENDMENT.  THE ORPHANS' COURT REJECTED THE CONSTITUTIONAL CONTENTION
AND REFUSED TO ORDER THE APPLICANTS' ADMISSION.  4 D.&C.2D 671 (ORPH. 
CT. PHILADELPHIA).  THIS WAS AFFIRMED BY THE PENNSYLVANIA SUPREME
COURT.  386 PA. 548, 127 A.2D 287. 

THE BOARD WHICH OPERATES GIRARD COLLEGE IS AN AGENCY OF THE STATE OF
PENNSYLVANIA.  THEREFORE, EVEN THOUGH THE BOARD WAS ACTING AS A
TRUSTEE, ITS REFUSAL TO ADMIT FOUST AND FELDER TO THE COLLEGE BECAUSE
THEY WERE NEGROES WAS DISCRIMINATION BY THE STATE.  SUCH DISCRIMINATION
IS FORBIDDEN BY THE FOURTEENTH AMENDMENT.  BROWN V. BOARD OF EDUCATION,
347 U.S. 483.  ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF
PENNSYLVANIA IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 
..END :











ALLEGHANY CORP. V. BRESWICK & CO. 353 U.S. 151 


NO. 36.  ARGUED JANUARY 23-24, 1957.  - DECIDED APRIL 22, 1957.  - 138
F. SUPP. 123, REVERSED AND REMANDED. 


IN A SUIT BY APPELLEES, WHO ARE MINORITY COMMON STOCKHOLDERS OF
ALLEGHANY CORPORATION (AN INVESTMENT COMPANY), A THREE-JUDGE DISTRICT
COURT SET ASIDE ORDERS OF THE INTERSTATE COMMERCE COMMISSION GRANTING
ALLEGHANY THE STATUS OF A NON-CARRIER TO BE "CONSIDERED AS A CARRIER"
UNDER SECS. 5(2) AND 5(3) OF THE INTERSTATE COMMERCE ACT AND APPROVING
ALLEGHANY'S ISSUANCE OF NEW PREFERRED STOCK CONVERTIBLE INTO COMMON
STOCK.  IT ALSO ENJOINED ALLEGHANY FROM ISSUING THE NEW PREFERRED
STOCK.  THE COMMISSION'S ORDERS WERE BASED ON ITS HOLDING THAT
ALLEGHANY, BEING IN CONTROL OF THE NEW YORK CENTRAL RAILROAD, NEEDED
COMMISSION APPROVAL UNDER SEC. 5(2) TO MERGE ONE SUBSIDIARY OF THE NEW
YORK CENTRAL INTO ANOTHER.  HELD: 

1.  AS COMMON STOCKHOLDERS WHOSE EQUITY MIGHT BE "DILUTED" BY THE
ISSUANCE OF THE NEW PREFERRED STOCK, APPELLEES HAD SUFFICIENT FINANCIAL
INTEREST TO GIVE THEM STANDING TO SUE TO SET ASIDE THE COMMISSION'S
ORDERS.  PP. 159-160. 

2.  SINCE THE COMMISSION'S ORDER CONFERRING ON ALLEGHANY THE STATUS
OF A NON-CARRIER TO BE "CONSIDERED AS A CARRIER" GAVE THE COMMISSION
JURISDICTION TO APPROVE THE PREFERRED STOCK ISSUE, APPELLEES COULD
ATTACK THAT ORDER.  P. 160. 

3.  THE COMMISSION HAD JURISDICTION OVER ALLEGHANY UNDER SECS. 5(2)
AND 5(3).  PP. 160-172. 

(A)  IT IS UNNECESSARY TO DECIDE WHETHER COMMISSION APPROVAL OF
ACQUISITION OF CONTROL OF A SINGLE INTEGRATED RAILROAD SYSTEM IS
REQUIRED; IF ALLEGHANY IN FACT CONTROLLED CENTRAL, THAT WAS SUFFICIENT
TO MEET THE STATUTORY REQUIREMENT OF "A PERSON WHICH IS NOT A CARRIER
AND WHICH HAS CONTROL OF ONE OR MORE CARRIERS."  PP. 161-162. 

(B)  THE COMMISSION'S FINDINGS AMPLY SUPPORT ITS CONCLUSION THAT
"CONTROL" OF CENTRAL WAS IN ALLEGHANY.  PP. 162-165. 

(C)  THE COMMISSION WAS JUSTIFIED IN FINDING THAT THE MERGER OF ONE
OF CENTRAL'S SUBSIDIARIES INTO ANOTHER INVOLVED AN "ACQUISITION OF
CONTROL" OF A "CARRIER" BY CENTRAL AND ALLEGHANY WITHIN THE MEANING OF
SEC. 5(2).  PP. 165-171. 

(D)  THE FAILURE TO JOIN TWO STOCKHOLDERS ALLEGED TO CONTROL
ALLEGHANY DID NOT OUST THE COMMISSION OF JURISDICTION.  PP. 171-172. 

4.  APPELLEES WERE NOT ENTITLED TO A HEARING IN THE PROCEEDINGS IN
WHICH THE COMMISSION APPROVED THE MERGER OF TWO OF CENTRAL'S
SUBSIDIARIES AND GRANTED ALLEGHANY THE STATUS OF A NON-CARRIER TO BE
"CONSIDERED AS A CARRIER" UNDER SEC. 5(2), SINCE THEY WERE NOT
"INTERESTED PARTIES" WITHIN THE MEANING OF SEC. 5(2)(B).  PP. 172-175. 

(A)  THE FACT THAT APPELLEES WERE COMMON STOCKHOLDERS OF ALLEGHANY IS
INSUFFICIENT "INTEREST," SINCE THAT PROCEEDING HAD NO SPECIAL EFFECT ON
APPELLEES AND DID NOT POSE ANY INDIVIDUALIZED THREAT TO THEIR WELFARE. 
P. 174. 

(B)  THAT ASSERTION OF JURISDICTION BY THE COMMISSION WOULD DEPRIVE
APPELLEES OF THE BENEFITS OF THE INVESTMENT COMPANY ACT OF 1940 DID NOT
GIVE THEM SUFFICIENT "INTEREST" IN THAT PROCEEDING.  PP. 174-175. 

5.  APPELLEES' CLAIM THAT THEY WERE ENTITLED TO A HEARING IN THE
PREFERRED STOCK PROCEEDING IS GOVERNED BY SEC. 20A(6), WHICH PROVIDES
THAT "THE COMMISSION MAY HOLD HEARINGS, IF IT SEES FIT, TO ENABLE IT TO
DETERMINE ITS DECISION ON APPLICATION FOR AUTHORITY."  P. 175. 

6.  THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED FOR CONSIDERATION BY THE DISTRICT COURT OF APPELLEES' CLAIM
THAT THE PREFERRED STOCK ISSUE, AS APPROVED BY THE COMMISSION, WAS IN
VIOLATION OF THE INTERSTATE COMMERCE ACT.  P. 175. 

ALLEGHANY CORPORATION ET AL. V. BRESWICK & CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK.* 

*TOGETHER WITH NO. 82, BAKER, WEEKS & CO. ET AL. V. BRESWICK & CO. ET
AL., AND NO. 114, INTERSTATE COMMERCE COMMISSION V. BRESWICK & CO. ET
AL., ALSO ON APPEALS FROM THE SAME COURT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE ARE DIRECT APPEALS UNDER 28 U.S.C. SEC. 1253 FROM A FINAL
JUDGMENT OF A THREE-JUDGE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK SETTING ASIDE ORDERS OF THE INTERSTATE COMMERCE COMMISSION AND
RESTRAINING APPELLANT ALLEGHANY CORPORATION FROM ISSUING A NEW CLASS OF
PREFERRED STOCK THAT HAD BEEN APPROVED BY THE COMMISSION.  THE CASE
RAISES NUMEROUS QUESTIONS REGARDING THE JURISDICTION AND POWERS OF THE
COMMISSION, ESPECIALLY UNDER SEC. 5 OF THE INTERSTATE COMMERCE ACT, FOR
THE UNDERSTANDING OF WHICH A RATHER DETAILED STATEMENT OF THE FACTS IS
NECESSARY. 

LAWFUL, WITH THE APPROVAL AND AUTHORIZATION OF THE COMMISSION  ...  (I)
...  FOR A PERSON WHICH IS NOT A CARRIER TO ACQUIRE CONTROL OF TWO OR
MORE CARRIERS THROUGH OWNERSHIP OF THEIR STOCK OR OTHERWISE; OR FOR A
PERSON WHICH IS NOT A CARRIER AND WHICH HAS CONTROL OF ONE OR MORE
CARRIERS TO ACQUIRE CONTROL OF ANOTHER CARRIER THROUGH OWNERSHIP OF ITS
STOCK OR OTHERWISE  ...  ."  54 STAT. 899, 905, 49 U.S.C. SEC.
5(2)(A).  (FN1) 

APPELLANT ALLEGHANY CORPORATION IS A MARYLAND CORPORATION WHOSE
CHARTER PROVIDES FOR EXTENSIVE POWERS OF INVESTMENT UNDER NO EXPRESS
LIMITATION.  AFTER THE PASSAGE OF THE INVESTMENT COMPANY ACT OF 1940,
54 STAT. 789, 15 U.S.C. SEC. 80A-1 ET SEQ., ALLEGHANY REGISTERED AS AN
INVESTMENT COMPANY WITH THE SECURITIES AND EXCHANGE COMMISSION.  IN
1944, IN CONNECTION WITH AN APPLICATION BY THE CHESAPEAKE & OHIO
RAILROAD FOR APPROVAL BY THE INTERSTATE COMMERCE COMMISSION OF
ACQUISITION OF THE PROPERTY OF THE NORFOLK TERMINAL & TRANSPORTATION
COMPANY, ALLEGHANY, ALLEGING THAT IT CONTROLLED THE CHESAPEAKE & OHIO,
FILED A SUPPLEMENTARY APPLICATION WITH THE COMMISSION JOINING THE
CHESAPEAKE & OHIO'S APPLICATION AND SEEKING APPROVAL OF ITS OWN
ACQUISITION OF CONTROL OF THE TERMINAL COMPANY THROUGH THE ACTION OF
THE CHESAPEAKE & OHIO.  IN 1945, THE COMMISSION APPROVED "ACQUISITION
OF CONTROL" OF THE TERMINAL COMPANY BY THE CHESAPEAKE & OHIO AND
ALLEGHANY AS A TRANSACTION WITHIN SEC. 5(2) AND FURTHER FOUND THAT
ALLEGHANY "SHALL BE CONSIDERED AS A CARRIER SUBJECT TO THE REPORTING
AND SECURITIES PROVISIONS OF SECTION 20(1) TO (10) AND SECTION 20A(2)
TO (11) OF THE ACT."  261 I.C.C. 239, 262. 

SHORTLY THEREAFTER, UNDER THE PROVISIONS OF SEC. 3(C)(9) OF THE
INVESTMENT COMPANY ACT, (FN2) THE SECURITIES AND EXCHANGE COMMISSION
HELD THAT ALLEGHANY WAS NO LONGER AN INVESTMENT COMPANY WITHIN THE
MEANING OF THE INVESTMENT COMPANY ACT.  20 S.E.C. 731. 

IN MARCH, APRIL, AND MAY 1954, SEVERAL PETITIONS AND COMPLAINTS WERE
FILED WITH THE INTERSTATE COMMERCE COMMISSION BY THE NEW YORK CENTRAL
RAILROAD, A STOCKHOLDER, A PROTECTIVE COMMITTEE, AND BONDHOLDER
CREDITORS OF THE CENTRAL, ASSERTING VIOLATIONS OF THE LAW IN
ALLEGHANY'S PURCHASES OF NEW YORK CENTRAL STOCK.  IN VIEW OF STATEMENTS
BY ALLEGHANY AND CHESAPEAKE & OHIO OFFICIALS THAT ALLEGHANY HAD
DISPOSED OF ITS HOLDINGS OF CHESAPEAKE STOCK, THAT COMMISSION, IN JUNE,
ORDERED ALLEGHANY TO SHOW CAUSE WHY THE 1945 ORDER PROVIDING THAT
ALLEGHANY SHOULD BE "CONSIDERED AS A CARRIER" SHOULD NOT BE SET ASIDE. 
ALLEGHANY REPLIED THAT IT WOULD ACCEPT AN ORDER TERMINATING ITS CONTROL
OF THE CHESAPEAKE & OHIO BUT REQUESTED DELAY UNTIL IT COULD FILE A NEW
APPLICATION WHICH, IT ALLEGED, WOULD REQUIRE THE COMMISSION'S APPROVAL
AND CONTINUANCE OF ITS STATUS AS A NON-CARRIER TO BE "CONSIDERED AS A
CARRIER" UNDER THE INTERSTATE COMMERCE ACT. 

THE PRESENT PROCEEDINGS WERE COMMENCED BY THE FILING OF SUCH AN
APPLICATION BY ALLEGHANY AND CENTRAL - AFTER THE OUSTING OF THE OLD
CENTRAL MANAGEMENT IN MAY IN A PROXY FIGHT.  THE CONTENTS OF THE
APPLICATION WERE DESCRIBED FULLY IN THE REPORT OF DIVISION 4 OF THE
COMMISSION: 

"THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY
(THE BIG FOUR), THE LOUISVILLE & JEFFERSONVILLE BRIDGE AND RAILROAD
COMPANY (THE BRIDGE COMPANY OR THE JEFFERSONVILLE), THE NEW YORK
CENTRAL RAILROAD COMPANY, AND THE ALLEGHANY CORPORATION ...  ON
SEPTEMBER 20, 1954, JOINTLY APPLIED UNDER SECTION 5(2) OF THE
INTERSTATE COMMERCE ACT  ...  FOR APPROVAL AND AUTHORIZATION OF (1)(A)
MERGER OF THE PROPERTIES AND FRANCHISES OF THE JEFFERSONVILLE INTO THE
BIG FOUR FOR OWNERSHIP, MANAGEMENT, AND OPERATION; AND (B) MODIFICATION
OF THE LEASE OF JANUARY 2, 1930, UNDER WHICH CENTRAL, AS LESSEE,
OPERATES THE PROPERTY OF BIG FOUR, LESSOR, TO GIVE EFFECT TO THE
ACQUISITION OF ADDITIONAL PROPERTY PURSUANT TO THE PROPOSED MERGER OF
JEFFERSONVILLE INTO BIG FOUR; (2) ACQUISITION BY CENTRAL AND ALLEGHANY,
BY VIRTUE OF THEIR CONTROL OF BIG FOUR, OF CONTROL OF THE PROPERTIES OF
JEFFERSONVILLE; AND (3) CONTINUATION OF ALLEGHANY'S STATUS AS A CARRIER
SUBJECT TO THE PROVISIONS OF SECTION 20(1) TO (10), INCLUSIVE, AND
20A(2) TO (11), INCLUSIVE, OF THE ACT, AS PROVIDED BY SECTION 5(3)
THEREOF."  290 I.C.C. 725-726. 

THE BIG FOUR ALREADY OWNED ALL THE CAPITAL STOCK OF THE
JEFFERSONVILLE.  THE BIG FOUR ITSELF HAD CEASED TO BE AN OPERATING
CARRIER IN 1930; SINCE THEN THE NEW YORK CENTRAL HAS OPERATED IT AS
LESSEE.  IN ADDITION, THE NEW YORK CENTRAL OWNS 98.98% OF THE COMMON,
AND 86.45% OF THE PREFERRED, STOCK OF THE BIG FOUR. 

ON MARCH 2, 1955, DIVISION 4 OF THE COMMISSION APPROVED AND
AUTHORIZED THE MERGER OF THE JEFFERSONVILLE INTO THE BIG FOUR; APPROVED
CONTINUED CONTROL OF THE PROPERTIES AND FRANCHISES OF THE
JEFFERSONVILLE BY THE CENTRAL AND ALLEGHANY; MODIFIED THE LEASE BETWEEN
THE BIG FOUR AND THE CENTRAL; CONTINUED ALLEGHANY AS A NON-CARRIER TO
BE "CONSIDERED AS A CARRIER" SUBJECT TO THE REPORTING AND SECURITIES
PROVISIONS OF THE ACT; AND TERMINATED THE EFFECTIVE PORTIONS OF THE
1945 ORDER IN THE CHESAPEAKE & OHIO PROCEEDING.  290 I.C.C.  725. 

ON RECONSIDERATION, THE WHOLE COMMISSION ON MAY 24, 1955, AFFIRMED
THE CONCLUSIONS OF DIVISION 4.  IT HELD THAT ALLEGHANY HAD ACQUIRED
CONTROL OVER CENTRAL; THAT AT THE TIME THE PRESENT APPLICATION WAS
FILED, ALLEGHANY WAS IN FACT "A PERSON NOT A CARRIER WHICH CONTROLLED
AN ESTABLISHED SYSTEM"; THAT THE ACQUISITION OF CONTROL OVER THE
CENTRAL WAS NOT WITHIN SEC. 5(2)'S REQUIREMENT OF COMMISSION APPROVAL;
THAT THE REARRANGEMENT BY CENTRAL OF ITS OWNERSHIP OR CONTROL OF ITS
SUBSIDIARIES WAS WITHIN SEC. 5(2)'S REQUIREMENT OF APPROVAL BY THE
COMMISSION AND THAT ALLEGHANY AS THE CONTROLLING PARTY WAS A NECESSARY
PARTY; AND THAT THE TERMS AND CONDITIONS OF THE TRANSACTIONS WERE FAIR
AND REASONABLE.  REJECTING THE SUGGESTION OF THE SECURITIES AND
EXCHANGE COMMISSION, WHICH HAD INTERVENED, THE WHOLE COMMISSION ALSO
HELD THAT IT HAD NO DISCRETION TO YIELD JURISDICTION OVER ALLEGHANY TO
THE FORMER AGENCY.  (FN3)  295 I.C.C. 11. 

SUBSEQUENT TO THEIR APPLICATION WITH RESPECT TO THE JEFFERSONVILLE,
ALLEGHANY AND CENTRAL, ON DECEMBER 17, 1954, FILED AN APPLICATION UNDER
SEC. 5(2) TO "ACQUIRE CONTROL" OF THE BOSTON & ALBANY RAILROAD COMPANY,
THE PITTSFIELD AND NORTH ADAMS RAILROAD CORPORATION, AND THE WARE RIVER
RAILROAD COMPANY THROUGH PURCHASE BY CENTRAL OF THEIR CAPITAL STOCK. 
THE CENTRAL OWNED A LITTLE MORE THAN 16% OF THE PITTSFIELD'S CAPITAL
STOCK AND NONE OF THE CAPITAL STOCK OF THE OTHER TWO RAILROADS.  IT
OPERATED THE PROPERTIES OF THE BOSTON & ALBANY, THE PITTSFIELD, AND THE
WARE RIVER UNDER LEASES DUE TO EXPIRE IN 1999, 1975, AND 2873
RESPECTIVELY.  ON MARCH 22, 1955, LESS THAN THREE WEEKS AFTER IT HAD
APPROVED THE APPLICATION IN THE JEFFERSONVILLE PROCEEDING, DIVISION 4
OF THE COMMISSION APPROVED THE ACQUISITION OF SUCH CONTROL BY ALLEGHANY
AND CENTRAL.  (OPINION NOT REPORTED.) 

A THIRD APPLICATION FILED BY ALLEGHANY, ON FEBRUARY 18, 1955, SOUGHT
PERMISSION FROM THE COMMISSION TO ISSUE A NEW 6% CONVERTIBLE PREFERRED
STOCK PURSUANT TO A CHARTER AMENDMENT, APPROVED BY ALL CLASSES OF
ALLEGHANY'S STOCKHOLDERS, THAT PERMITTED CONSUMMATION OF ALLEGHANY'S
PROPOSED PLAN OF ALLOWING ITS OUTSTANDING CUMULATIVE 5 1/2% PREFERRED
STOCK TO BE EXCHANGED FOR THE NEW STOCK.  ON MAY 26, 1955, TWO DAYS
AFTER THE WHOLE COMMISSION AFFIRMED DIVISION 4'S ORDERS IN THE
JEFFERSONVILLE PROCEEDING, DIVISION 4 APPROVED THE NEW STOCK ISSUE
(CONDITIONING ITS APPROVAL ON MODIFICATION OF ONE TERM), AND ON JUNE
22, THE FULL COMMISSION DENIED RECONSIDERATION. 

AN ACTION WAS THEN BROUGHT BEFORE A THREE-JUDGE DISTRICT COURT BY
MINORITY COMMON STOCKHOLDERS OF ALLEGHANY TO REQUIRE THE COMMISSION TO
SET ASIDE ITS ORDER GRANTING ALLEGHANY THE STATUS OF A NON-CARRIER TO
BE "CONSIDERED AS A CARRIER" AND ITS SUBSEQUENT ORDER APPROVING THE NEW
CLASS OF PREFERRED STOCK AND TO RESTRAIN ALLEGHANY FROM ISSUING THE NEW
PREFERRED STOCK.  THE THREE-JUDGE DISTRICT COURT, CONVENED UNDER THE
URGENT DEFICIENCIES ACT, 28 U.S.C. SECS. 1336, 1337, 2321-2325, GRANTED
FIRST A PRELIMINARY INJUNCTION, 134 F. SUPP. 132 (CIRCUIT JUDGE HINCKS,
DISSENTING), AND THEN A PERMANENT INJUNCTION SETTING ASIDE THE
COMMISSION'S ORDER DESIGNATING ALLEGHANY AS A "CARRIER" AND ALSO ITS
ORDER APPROVING ALLEGHANY'S NEW CLASS OF PREFERRED STOCK, RESTRAINING
ITS ISSUE.  138 F. SUPP. 123.  (FN4) 

ALLEGHANY MOVED FOR A NEW TRIAL BASED ON THE "ACQUISITION OF CONTROL"
INVOLVED IN THE BOSTON & ALBANY PROCEEDING.  THE DISTRICT COURT HELD
THAT THE COMMISSION'S ORDER IN THAT PROCEEDING GAVE NO VALIDITY TO THE
ORDERS IN THE JEFFERSONVILLE PROCEEDING BECAUSE OF THE COMMISSION'S
FAILURE TO PROVIDE SPECIFICALLY IN ITS BOSTON & ALBANY ORDER THAT
ALLEGHANY SHOULD BE "CONSIDERED AS A CARRIER."  138 F. SUPP., AT 138. 
ON APPEAL HERE FROM THE FINAL JUDGMENT BELOW, WE NOTED PROBABLE
JURISDICTION.  351 U.S. 903, 352 U.S. 816. 

ALLEGHANY URGES INITIALLY THAT THE COMMISSION'S ORDERS DEALING WITH
ITS STATUS UNDER THE INTERSTATE COMMERCE ACT AND DEALING WITH ITS NEW
PREFERRED STOCK WERE NOT REVIEWABLE AT THE SUIT OF APPELLEES, THAT
APPELLEES HAD NO STANDING.  WE FIND THAT APPELLEES DO HAVE STANDING TO
CHALLENGE THESE ORDERS.  THIS IS NOT A CASE WHERE "THE ORDER UNDER
ATTACK DOES NOT DEAL WITH THE INTERESTS OF INVESTORS," OR WHERE THE
"INJURY FEARED IS THE INDIRECT HARM WHICH MAY RESULT TO EVERY
STOCKHOLDER FROM HARM TO THE CORPORATION."  PITTSBURGH & W.VA. R. CO.
V. UNITED STATES, 281 U.S. 479, 487.  THE APPELLEES ARE COMMON
STOCKHOLDERS OF ALLEGHANY.  THE NEW PREFERRED STOCK ISSUE APPROVED BY
THE COMMISSION IS CONVERTIBLE, AND UNDER RELEVANT NOTIONS OF STANDING,
THE THREATENED "DILUTION" OF THE EQUITY OF THE COMMON STOCKHOLDERS
PROVIDED SUFFICIENT FINANCIAL INTEREST TO GIVE THEM STANDING.  SEE
AMERICAN POWER & LIGHT CO. V. SEC, 325 U.S. 385, 388-389. 

HAVING ACQUIRED STANDING TO INSTITUTE PROCEEDINGS IN THE DISTRICT
COURT BY VIRTUE OF THE THREATENED FINANCIAL INJURY, APPELLEES COULD
ALSO ATTACK THE ORDER OF THE COMMISSION CONFERRING ON ALLEGHANY THE
STATUS OF A PERSON NOT A CARRIER BUT TO BE "CONSIDERED AS A CARRIER." 
THE STATUS ORDER WAS A SOURCE OF THE THREATENED FINANCIAL INJURY.  IF
THE COMMISSION ACTED OUT OF BOUNDS IN DECREEING ITS STATUS ORDER, IT
HAD NO POWER TO APPROVE THE NEW PREFERRED STOCK ISSUE AND THE
PLAINTIFFS WOULD BE ENTITLED TO RELIEF.  (FN5) 

THIS BRINGS US TO THE SUBSTANTIVE ISSUES IN THE LITIGATION.  IN THE
MAIN, THESE INVOLVE THE JURISDICTION OF THE COMMISSION UNDER SECS. 5(2)
AND 5(3) OF THE ACT, DEFINING ITS POWERS.  (FN6) THE VALIDITY OF THE
STATUS ORDER UNDER SEC. 5(3) TURNS ON COMPLIANCE WITH THE STATUTORY
REQUIREMENT OF SEC. 5(2) OF COMMISSION APPROVAL "FOR A PERSON WHICH IS
NOT A CARRIER AND WHICH HAS CONTROL OF ONE OR MORE CARRIERS TO ACQUIRE
CONTROL OF ANOTHER CARRIER THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE
...  ."  APPELLANTS ALLEGHANY AND THE COMMISSION CONTEND THAT THE
JEFFERSONVILLE AND THE BOSTON & ALBANY TRANSACTIONS BOTH SUPPORT THE
COMMISSION'S ASSERTION OF JURISDICTION.  THE DISTRICT COURT DISAGREED
WITH RESPECT TO THE FORMER AND, AS WE HAVE SEEN, P. 159, SUPRA, FOUND
IT UNNECESSARY TO PASS ON THE LATTER. 

WHETHER THE JEFFERSONVILLE TRANSACTION MET THE STATUTORY REQUIREMENT
OF SEC. 5(2) RAISES THREE QUESTIONS.  (1)  WAS COMMISSION APPROVAL OF
ALLEGHANY'S ACQUISITION OF CONTROL OVER CENTRAL REQUIRED?  (2)  DID
ALLEGHANY IN FACT CONTROL CENTRAL?  (3)  DID THE JEFFERSONVILLE
TRANSACTION INVOLVE AN ACQUISITION OF CONTROL BY ALLEGHANY OVER THE
PROPERTIES OF THE JEFFERSONVILLE? 

THE DISTRICT COURT HELD THAT WHATEVER CONTROL ALLEGHANY HAD OVER
CENTRAL DID NOT FIT WITHIN THE STATUTORY REQUIREMENT OF "A PERSON WHICH
IS NOT A CARRIER AND WHICH HAS CONTROL OF ONE OR MORE CARRIERS" BECAUSE
THE COMMISSION HAD NOT GIVEN THE APPROVAL NECESSARY FOR ACQUISITION OF
CONTROL OF CENTRAL AND ITS SUBSIDIARIES, "TWO OR MORE CARRIERS." 

THE COMMISSION AND ALLEGHANY CONTEND THAT COMMISSION APPROVAL OF THE
ACQUISITION OF A SINGLE, INTEGRATED SYSTEM IS NOT NECESSARY.  WE NEED
NOT DECIDE THIS QUESTION, HOWEVER, AND INTIMATE NO OPINION ON IT, FOR
EVEN IF SUCH APPROVAL IS NECESSARY, THE STATUTORY REQUIREMENT OF "A
PERSON WHICH IS NOT A CARRIER AND WHICH HAS CONTROL OF ONE OR MORE
CARRIERS" REFERS TO "CONTROL" AND NOT TO "APPROVED CONTROL."  THERE
SEEMS TO BE NO REASON TO READ IN THE WORD "APPROVED."  SUCH A HOLDING
WOULD MEAN THAT THE FAILURE OF A COMPANY ENGAGING IN A TRANSACTION
REQUIRING COMMISSION APPROVAL TO APPLY FOR THAT APPROVAL WOULD DEPRIVE
THE COMMISSION OF JURISDICTION.  REMEDIES AGAINST A VIOLATOR ARE
PROVIDED BY SEC. 5(7), (8), AND (9) OF THE ACT.  TO PUNISH A VIOLATOR
BY DEPRIVING THE COMMISSION OF JURISDICTION OVER IT WOULD BE INDEED
QUIXOTIC.  AS THE COMMISSION POINTS OUT, THE PROBLEM WOULD APPEAR
CLEARER WERE ALLEGHANY CONTESTING, RATHER THAN ACQUIESCING IN, ITS
JURISDICTION. 

CONTROL IN FACT THEN IS SUFFICIENT TO SATISFY THE REQUIREMENT OF SEC.
5(2).  DIVISION 4 OF THE COMMISSION REPORTED THE FOLLOWING: 

"THE CAPITAL STOCK OF CENTRAL IS WIDELY HELD BY THE PUBLIC, BUT
CONTROL OF ITS FUNCTIONS REPOSES IN ALLEGHANY AND ITS OFFICERS AS A
RESULT OF A PROXY CONTEST PRECEDING A STOCKHOLDER'S MEETING OF MAY 26,
1954, AT WHICH THE NOMINEES CHOSEN BY ALLEGHANY WERE ELECTED AS
CENTRAL'S BOARD OF DIRECTORS.  ALLEGHANY HAS AN UNDIVIDED HALF INTEREST
IN 600,000 SHARES OF CENTRAL STOCK WITH VOTING RIGHTS TO THE 600,000
SHARES UNDER JOINT-VENTURE AGREEMENTS, AND IN ADDITION, OWNS 15,500
SHARES.  THE VOTING RIGHTS OF ALLEGHANY REPRESENTS ALMOST 10 PERCENT OF
THE TOTAL SHARES OF CENTRAL STOCK OUTSTANDING.  THE CHAIRMAN OF THE
BOARD OF DIRECTORS OF ALLEGHANY, WHO HOLDS THE SAME POSITION WITH
CENTRAL, BENEFICIALLY OWNS 100,200 SHARES OF THE LATTER'S STOCK.  THE
PRESIDENT OF ALLEGHANY IS A DIRECTOR OF CENTRAL, AND BENEFICIALLY OWNS
300,100 SHARES OF THE LATTER'S STOCK.  A VICE PRESIDENT OF ALLEGHANY
HOLDS A SIMILAR POSITION WITH CENTRAL."  290 I.C.C., AT 727. 

DIVISION 4 RECOGNIZED THAT "THE PRESENT CONTROL OF THE CENTRAL SYSTEM
HAS PASSED TO ALLEGHANY BY REGULAR CORPORATE PROCEDURES  ...  ."  ID.,
AT 741. 

THE FULL COMMISSION REACHED THIS CONCLUSION: 

"THE CONTENTION THAT ALLEGHANY DOES NOT CONTROL THE INDIVIDUAL
DIRECTORS ON CENTRAL'S BOARD IGNORES THE REALITIES OF THE SITUATION. 
ALLEGHANY AND ITS ALLIED INTERESTS HAVE SUCCEEDED IN ELECTING
SUFFICIENT MEMBERS OF THE BOARD TO PERMIT THEM TO ORGANIZE AND ELECT
THEIR OWN OFFICERS.  CLEARLY THE TENURE IN OFFICE OF SUCH DIRECTORS WHO
PERMITTED THIS ACTION DEPENDS UPON THEIR CONFORMANCE TO THE VIEWS OF
THE STOCKHOLDERS WHO ELECTED THEM.  IN OUR OPINION THE POWER THUS
REPOSING IN ALLEGHANY CONSTITUTES CONTROL OF CENTRAL."  295 I.C.C. 11,
16. 

THE DISTRICT COURT, HOWEVER, HELD THAT "IF THE COMMISSION'S OPINION
CONTAIN A CONCLUSION THAT ALLEGHANY IS IN CONTROL OF NEW YORK CENTRAL,
THOSE OPINIONS LACK SUFFICIENT FINDINGS TO SUPPORT THAT CONCLUSION." 
134 F. SUPP., AT 147.  IT NOTED THAT THE ORDER OF DIVISION 4 "DISCLOSES
THE FACT THAT ALLEGHANY'S BENEFICIAL HOLDINGS OF THE CENTRAL STOCK ARE
LESS THAN THE COMBINED INDIVIDUAL HOLDINGS OF KIRBY, YOUNG, RICHARDSON
AND THE MURCHISON GROUP," AND CONCLUDED THAT "THE FINDINGS DO NO MORE
THAN SAY THAT ALLEGHANY, WITH SOMEONE ELSE, CONTROLS NEW YORK CENTRAL. 
THEY DO NOT EVEN SAY WHETHER THE SOMEONE ELSE, ALONE, HAS CONTROL." 
IBID. 

WE THINK THAT THE DISTRICT COURT TOOK TOO RESTRICTED A VIEW OF WHAT
CONSTITUTES "CONTROL."  IN 1939, IN ROCHESTER TELEPHONE CORP. V. UNITED
STATES, 307 U.S. 125, 145-146, ARISING UNDER THE FEDERAL COMMUNICATIONS
ACT, 48 STAT. 1064, 1065, 47 U.S.C. SEC. 152(B), THIS COURT REJECTED
ARTIFICIAL TESTS FOR "CONTROL," AND LEFT ITS DETERMINATION IN A
PARTICULAR CASE AS A PRACTICAL CONCEPT TO THE AGENCY CHARGED WITH
ENFORCEMENT.  (FN7)  THIS WAS THE BROAD SCOPE DESIGNED FOR "CONTROL" AS
EMPLOYED BY CONGRESS IN THE TRANSPORTATION ACT OF 1940, 54 STAT. 899
900, 49 U.S.C. SEC. 1(3)(B).  (FN8)  SEE UNITED STATES V. MARSHALL
TRANSPORT CO., 322 U.S. 31, 38. 

THAT ACT ALSO ADDED SEC. 1(3)(B) TO THE INTERSTATE COMMERCE ACT,
PROVIDING: 

"FOR THE PURPOSES OF SECTION 5  ...  OF THIS ACT, WHERE REFERENCE IS
MADE TO CONTROL (IN REFERRING TO A RELATIONSHIP BETWEEN ANY PERSON OR
PERSONS AND ANOTHER PERSON OR PERSONS), SUCH REFERENCE SHALL BE
CONSTRUED TO INCLUDE ACTUAL AS WELL AS LEGAL CONTROL, WHETHER
MAINTAINED OR EXERCISED THROUGH OR BY REASON OF THE METHOD OF OR
CIRCUMSTANCES SURROUNDING ORGANIZATION OR OPERATION, THROUGH OR BY
COMMON DIRECTORS, OFFICERS, OR STOCKHOLDERS, A VOTING TRUST OR TRUSTS,
A HOLDING OR INVESTMENT COMPANY OR COMPANIES, OR THROUGH OR BY ANY
OTHER DIRECT OR INDIRECT MEANS; AND TO INCLUDE THE POWER TO EXERCISE
CONTROL."  54 STAT.  899-900, 49 U.S.C. SEC. 1(3)(B). 


"THE TERM 'PERSON' AS USED IN THIS PART INCLUDES AN INDIVIDUAL, FIRM,
COPARTNERSHIP, CORPORATION, COMPANY, ASSOCIATION, OR JOINT-STOCK
ASSOCIATION; AND INCLUDES A TRUSTEE, RECEIVER, ASSIGNEE, OR PERSONAL
REPRESENTATIVE THEREOF."  54 STAT. 899, 49 U.S.C. SEC.  1(3)(A). 

THE COMMISSION'S FINDINGS, SETTING FORTH THE EVENTS SURROUNDING THE
PROXY FIGHT FOR CONTROL OF CENTRAL, THE COMMON DIRECTORS IN BOTH, THE
STOCKHOLDINGS OF ALLEGHANY'S OFFICERS AND STOCKHOLDERS IN CENTRAL, AND
THE SWORN STATEMENT OF CENTRAL IN THE CENTRAL-ALLEGHANY APPLICATION
THAT CENTRAL IS CONTROLLED BY ALLEGHANY AMPLY SUPPORT ITS CONCLUSION
THAT "CONTROL" OF CENTRAL WAS IN ALLEGHANY.  SEE FOOTNOTE 7, SUPRA. 

THE QUESTION REMAINS WHETHER THE SECOND PORTION OF THE STATUTORY
REQUIREMENT OF COMMISSION APPROVAL "FOR A PERSON WHICH IS NOT A CARRIER
AND WHICH HAS CONTROL OF ONE OR MORE CARRIERS TO ACQUIRE CONTROL OF
ANOTHER CARRIER THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE  ...  " HAS
BEEN MET.   WHAT CONSTITUTES AN ACQUISITION OF CONTROL?  THE DISTRICT
COURT GAVE THIS RESTRICTED INTERPRETATION: 

"A MERGER OF CARRIERS MAY INVOLVE AN ACQUISITION OF CONTROL BY A NON
CARRIER, WHERE, THROUGH THE MERGER, THE NON-CARRIER ACQUIRES CONTROL
(DIRECT OR INDIRECT) OF A CARRIER OR CARRIER PROPERTY WHICH THE NON
CARRIER HAD PREVIOUSLY NOT CONTROLLED; UNITED STATES V. MARSHALL
TRANSPORT CO., 322 U.S. 31 ...  .  BUT WHERE, AS IN THE INSTANT CASE,
THE NON-CARRIER (ALLEGHANY) IS (ACCORDING TO OUR ASSUMPTION, ARGUENDO)
ALREADY IN INDIRECT CONTROL OF A CARRIER (BRIDGE COMPANY), AND THE
MERGER STILL LEAVES THE NON-CARRIER IN INDIRECT CONTROL OF SUCH
PROPERTY, NO ACQUISITION BY THE NON-CARRIER RESULTS FROM THE MERGER
...  ."  138 F. SUPP., AT 127-128.  (FN9) 

WE THINK THAT THIS IS TOO NARROW A READING OF THE STATUTE.  NOT
LABELS BUT THE NATURE OF THE CHANGED RELATION IS CRUCIAL IN DETERMINING
WHETHER A REARRANGEMENT WITHIN A RAILROAD SYSTEM CONSTITUTES AN
"ACQUISITION OF CONTROL" UNDER SEC. 5(2). 

THE COURT HAS ALREADY CONSIDERED TWICE WHAT CONSTITUTES AN
"ACQUISITION OF CONTROL" UNDER THE INTERSTATE COMMERCE ACT.  IN NEW
YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12, THE COURT
INTERPRETED SEC. 5(2) AS IT READ IN THE TRANSPORTATION ACT OF 1920, 41
STAT. 456, 481: 

"WHENEVER THE COMMISSION IS OF OPINION  ...  THAT THE ACQUISITION, TO
THE EXTENT INDICATED BY THE COMMISSION, BY ONE OF SUCH CARRIERS OF THE
CONTROL OF ANY OTHER SUCH CARRIER OR CARRIERS EITHER UNDER A LEASE OR
BY THE PURCHASE OF STOCK OR IN ANY OTHER MANNER NOT INVOLVING THE
CONSOLIDATION OF SUCH CARRIERS INTO A SINGLE SYSTEM OF OWNERSHIP AND
OPERATION, WILL BE IN THE PUBLIC INTEREST, THE COMMISSION SHALL HAVE
AUTHORITY BY ORDER TO APPROVE AND AUTHORIZE SUCH ACQUISITION, UNDER
SUCH RULES AND REGULATIONS AND FOR SUCH CONSIDERATION AND ON SUCH TERMS
AND CONDITIONS AS SHALL BE FOUND BY THE COMMISSION TO BE JUST AND
REASONABLE IN THE PREMISES." 

IN THAT CASE THE ORDER OF THE COMMISSION PERMITTING THE NEW YORK
CENTRAL RAILROAD TO ACQUIRE CONTROL, BY LEASE, OF THE RAILROAD SYSTEMS
OF THE BIG FOUR AND THE MICHIGAN CENTRAL RAILROAD COMPANIES, WAS UNDER
REVIEW.  MINORITY STOCKHOLDERS CONTENDED, INTER ALIA, THAT THE
COMMISSION COULD NOT AUTHORIZE "ACQUISITION OF CONTROL" BY LEASE SINCE
THE CENTRAL HAD ALREADY ACQUIRED CONTROL OF BOTH RAILROADS BY STOCK
OWNERSHIP.  THE COURT HELD THAT THE "DISJUNCTIVE PHRASING OF THE
STATUTE 'EITHER UNDER A LEASE OR BY THE PURCHASE OF STOCK' MUST BE READ
IN THE LIGHT OF ITS OBVIOUS PURPOSE AND CANNOT BE TAKEN TO MEAN THAT
ONE METHOD MUST BE EXCLUSIVE OF THE OTHER."  287 U.S., AT 23.  NOWHERE
DID IT INTIMATE THAT THE LEASE WAS NOT AN "ACQUISITION OF CONTROL,"
EVEN THOUGH THE CENTRAL ALREADY HAD STOCK OWNERSHIP CONTROL OF BOTH
RAILROADS.  IN FACT, THE REFUSAL TO SET ASIDE THE COMMISSION'S ORDER
NECESSARILY INVOLVED APPROVAL OF THE COMMISSION'S FINDING OF AN
"ACQUISITION OF CONTROL," AND THE COURT FURTHER STATED: 

"THE PUBLIC INTEREST IS SERVED BY ECONOMY AND EFFICIENCY IN
OPERATION.  IF THE EXPECTED ADVANTAGES ARE INADEQUATELY SECURED BY
STOCK OWNERSHIP AND WOULD BE BETTER SECURED BY LEASE, THE STATUTE
AFFORDS NO BASIS FOR THE CONTENTION THAT THE LATTER MAY NOT BE
AUTHORIZED ALTHOUGH THE FORMER EXISTS.  THE FACT THAT ONE PRECEDES THE
OTHER CANNOT BE REGARDED AS DETERMINATIVE IF THE DESIRED COORDINATION
IS NOT OTHERWISE OBTAINABLE."  IBID. 

THE TRANSPORTATION ACTS OF 1933, 48 STAT. 211, AND 1940, 54 STAT.
898, REWROTE SEC. 5 BUT RETAINED THE "ACQUISITION OF CONTROL" LANGUAGE,
EXCEPT THAT THE PHRASE RELATING TO METHOD OF ACQUISITION - "UNDER A
LEASE OR BY THE PURCHASE OF STOCK OR IN ANY OTHER MANNER NOT INVOLVING
THE CONSOLIDATION OF SUCH CARRIERS INTO A SINGLE SYSTEM" - BECAME, FOR
ACQUISITIONS BY BOTH CARRIERS AND NON-CARRIERS, AN ALL-INCLUSIVE PHRASE
IN THE 1940 ACT - "THROUGH OWNERSHIP OF THEIR STOCK OR OTHERWISE." 
THESE CHANGES DO NOT LESSEN THE AUTHORITY OF THE NEW YORK CENTRAL
SECURITIES CASE IN THE SCOPE TO BE GIVEN TO AN "ACQUISITION OF
CONTROL." 

IN UNITED STATES V. MARSHALL TRANSPORT CO., 322 U.S. 31, THE COURT
INTERPRETED SEC. 5, AS AMENDED BY THE 1940 ACT, 54 STAT. 899, 905, 49
U.S.C. SEC. 5.  THE COURT HELD THAT THE NON-CARRIER PARENT (UNION) OF A
CARRIER (REFINERS) THAT PROPOSED TO PURCHASE THE PROPERTY AND
FRANCHISES OF ANOTHER CARRIER (MARSHALL) "ACQUIRED CONTROL" OF THE
PROPERTY AND FRANCHISES OF THE VENDOR AND WAS THEREFORE SUBJECT TO THE
COMMISSION'S JURISDICTION.  THE SUBSTANTIVE ISSUES IN THAT CASE WERE OF
COURSE DIFFERENT FROM THOSE OF THE PRESENT CASE, SINCE THERE HAD BEEN
NO PRIOR RELATION BETWEEN THE NON-CARRIER PARENT AND THE VENDOR
CARRIER.  IN REACHING ITS DECISION, HOWEVER, THE COURT WAS EXPLICIT
REGARDING THE PURPOSE OF SEC. 5: 

"IT IS NOT DOUBTED THAT IF UNION, HAVING CONTROL OF REFINERS, SOUGHT
TO ACQUIRE STOCK CONTROL OF MARSHALL, UNION WOULD BE REQUIRED BY SEC.
5(2)(B) TO APPLY FOR THE COMMISSION'S AUTHORITY TO DO SO. BUT IT IS
SAID THAT HAVING CONTROL OF REFINERS, UNION MAY, BY PROCURING REFINERS'
COMPLIANCE WITH THE PURCHASE PROVISIONS OF THE STATUTE ALONE, EXTEND
ITS CONTROL INDEFINITELY TO OTHER CARRIERS MERELY BY DIRECTING THE
PURCHASE OF THEIR PROPERTY AND BUSINESS BY REFINERS, WITHOUT SUBJECTING
ITSELF TO THE JURISDICTION OF THE COMMISSION AS PROVIDED IN SEC. 5(3),
SO LONG AS UNION DOES NOT ACT DIRECTLY AS THE PURCHASER OF THE PROPERTY
OR OF A CONTROLLING STOCK INTEREST IN SUCH OTHER CARRIERS. 

"WE THINK THAT NEITHER THE LANGUAGE NOR THE LEGISLATIVE HISTORY OF
THE STATUTE ADMITS OF SO NARROW A CONSTRUCTION.  SECTION 5(4) MAKES IT
UNLAWFUL, WITHOUT THE APPROVAL OF THE COMMISSION AS PROVIDED BY SEC.
5(2)(A), FOR A PERSON WHICH IS NOT A CARRIER AND WHICH HAS CONTROL OF
ONE OR MORE CARRIERS TO ACQUIRE CONTROL OF ANOTHER CARRIER THROUGH
OWNERSHIP OF ITS STOCK OR OTHERWISE.  NOT ONLY IS THE LANGUAGE BROAD
ENOUGH IN TERMS TO EMBRACE THE ACQUISITION OF CONTROL BY A NON-CARRIER
THROUGH THE PURCHASE, BY A CONTROLLED CARRIER, OF THE PROPERTY AND
BUSINESS OF ANOTHER CARRIER, BUT THE LEGISLATIVE HISTORY INDICATES THAT
SUCH WAS ITS PURPOSE."  ID., AT 36-37.  SEE ALSO ID., AT 37-40. 

IN OTHER WORDS, A NON-CARRIER MAY NOT GAIN "CONTROL" OVER CARRIERS
FREE OF COMMISSION REGULATION MERELY BY OPERATING THROUGH
SUBSIDIARIES. 

THE CRUX OF EACH INQUIRY TO DETERMINE WHETHER THERE HAS BEEN AN
"ACQUISITION OF CONTROL" IS THE NATURE OF THE CHANGE IN RELATIONS
BETWEEN THE COMPANIES WHOSE PROPOSED TRANSACTION IS BEFORE THE
COMMISSION FOR APPROVAL.  DOES THE TRANSACTION ACCOMPLISH A SIGNIFICANT
INCREASE IN THE POWER OF ONE OVER THE OTHER, FOR EXAMPLE, AN INCREASED
VOICE IN MANAGEMENT OR OPERATION, OR THE ABILITY TO ACCOMPLISH
FINANCIAL TRANSACTIONS OR OPERATIONAL CHANGES WITH GREATER LEGAL EASE? 
THIS IS THE ISSUE, AND NOT THE IMMEDIACY OR REMOTENESS OF THE PARENT
FROM THE PROPOSED TRANSACTION, FOR, AS WE SAID IN THE MARSHALL
TRANSPORT CASE, THE PARENT CAN ALWAYS, BY OPERATING THROUGH
SUBSIDIARIES, MAKE ITSELF MORE REMOTE.  IN DECIDING THIS TYPE OF ISSUE,
OF COURSE, THE FINDING OF THE COMMISSION THAT A GIVEN TRANSACTION DOES
OR DOES NOT CONSTITUTE A SIGNIFICANT INCREASE IN THE POWER OF ONE
COMPANY OVER ANOTHER IS NOT TO BE OVERRULED SO LONG AS "THERE IS
WARRANT IN THE RECORD FOR THE JUDGMENT OF THE EXPERT BODY  ...  ." 
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 146. 

THE PRINCIPAL ISSUE, THEREFORE, IN THE JEFFERSONVILLE PROCEEDING IS
NOT ALLEGHANY'S REMOTENESS FROM, OR CLOSENESS TO, THE PROPOSED
TRANSACTION BUT RATHER THE NATURE OF THE PROPOSED TRANSACTION ITSELF. 
THE BIG FOUR, WHOSE STOCK WAS LARGELY OWNED BY CENTRAL, OWNED ALL THE
STOCK OF THE JEFFERSONVILLE.  (BY AGREEMENT BETWEEN THE BIG FOUR AND
THE CENTRAL, THIS STOCK WAS HELD BY THE CENTRAL.)  THE PROPOSAL WAS TO
MERGE THE JEFFERSONVILLE INTO THE BIG FOUR.  WHILE THE IMMEDIATE
PRACTICAL EFFECTS OF THE MERGER ON THE OPERATION OF THE JEFFERSONVILLE
MIGHT BE SMALL, EVEN MINIMAL, A MERGER IS THE ULTIMATE IN ONE COMPANY
OBTAINING CONTROL OVER ANOTHER.  SO LONG AS THE JEFFERSONVILLE EXISTED
AS A SEPARATE COMPANY, THERE WAS ALWAYS THE POSSIBILITY THAT THE BIG
FOUR, THROUGH THE CENTRAL, MIGHT SELL, OR BE FORCED TO DIVEST ITSELF
OF, THE JEFFERSONVILLE STOCK, AND THAT THE CONTROL OF THE
JEFFERSONVILLE MIGHT THUS PASS TO ANOTHER RAILROAD.  IN CONSIDERING
THIS POSSIBILITY, IT IS IMPORTANT TO NOTE THAT THE JEFFERSONVILLE DOES
NOT CONNECT PHYSICALLY WITH THE BIG FOUR BUT CONNECTS WITH IT ONLY BY
VIRTUE OF THE BIG FOUR'S TRACKAGE RIGHTS OVER THE BALTIMORE & OHIO, AND
THAT THE JEFFERSONVILLE, WITH ITS FEW MILES OF TRACK, ALSO CONNECTS
WITH THE PENNSYLVANIA, BALTIMORE & OHIO, LOUISVILLE & NASHVILLE,
ILLINOIS CENTRAL, AND CHESAPEAKE & OHIO RAILROADS.    THE MERGER OF THE
JEFFERSONVILLE INTO THE BIG FOUR VIRTUALLY PRECLUDES ANY CHANGE IN THE
RELATION OF THE JEFFERSONVILLE LINES TO THE CENTRAL SYSTEM.  THE
JEFFERSONVILLE WILL BE NO MORE.  IN VIEW OF THIS, IT CANNOT REASONABLY
BE SAID THAT THERE HAS BEEN NO INCREASE IN THE POWER OF THE BIG FOUR,
THE CENTRAL, AND, THROUGH ITS RELATION WITH THEM, ALLEGHANY OVER THE
JEFFERSONVILLE.  WHILE IT IS NOT ALWAYS PROFITABLE TO ANALOGIZE "FACT"
TO "FICTION," LA FONTAINE'S FABLE OF THE CROW, THE CHEESE, AND THE FOX
DEMONSTRATES THAT THERE IS A SUBSTANTIAL DIFFERENCE BETWEEN HOLDING A
PIECE OF CHEESE IN THE BEAK AND PUTTING IT IN THE STOMACH. 

DENIAL OF POWER TO THE COMMISSION TO REGULATE THE ELIMINATION OF THE
JEFFERSONVILLE FROM THE NATIONAL TRANSPORTATION SCENE WOULD BE A
DISREGARD OF THE RESPONSIBILITY PLACED ON IT BY CONGRESS TO OVERSEE
COMBINATIONS AND CONSOLIDATIONS OF CARRIERS AND "TO PROMOTE SAFE,
ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND FOSTER SOUND ECONOMIC
CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL CARRIERS  ...  " AND
THE FURTHER REQUIREMENT THAT "ALL OF THE PROVISIONS OF THIS ACT SHALL
BE ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY."  NATIONAL TRANSPORTATION POLICY, 54 STAT. 899,
49 U.S.C., PRECEDING SEC. 1.  WE HOLD THAT THE COMMISSION WAS JUSTIFIED
IN FINDING THAT THE MERGER OF THE JEFFERSONVILLE INTO THE BIG FOUR
INVOLVED AN "ACQUISITION OF CONTROL" OF THE JEFFERSONVILLE BY CENTRAL
AND ALLEGHANY WITHIN THE MEANING OF SEC. 5(2) OF THE ACT.  SINCE THE
STATUS ORDER OF THE COMMISSION IS SUPPORTABLE BY VIRTUE OF THE
JEFFERSONVILLE PROCEEDING, WE NEED NOT CONSIDER THE DISTRICT COURT'S
DENIAL OF ALLEGHANY'S MOTION, BASED ON THE BOSTON & ALBANY PROCEEDING,
FOR A NEW TRIAL. 

SEVERAL OTHER MATTERS URGED BY APPELLEES REMAIN TO BE CONSIDERED. 
APPELLEES CONTEND THAT ALLEGHANY DID NOT ACQUIRE CONTROL OF ANY CARRIER
IN THE JEFFERSONVILLE PROCEEDING SINCE THE APPLICATION WAS MADE BY THE
BIG FOUR AS LESSOR AND THE CENTRAL AS LESSEE AND THAT THEREFORE THE BIG
FOUR WAS A STATUTORY LESSOR AND NOT A CARRIER WITHIN SEC. 5.  WE NEED
NOT DISCUSS THE DISTINCTION THAT APPELLEES SEEK TO ASSERT BETWEEN
LESSORS AND CARRIERS, FOR THE JEFFERSONVILLE, THE RAILROAD WHOSE
CONTROL WE HAVE HELD WAS ACQUIRED BY ALLEGHANY, WAS AN OPERATING
CARRIER. 

APPELLEES ALSO URGE THAT THE MARSHALL TRANSPORT CASE, 322 U.S. 31,
REQUIRES DISMISSAL OF ALLEGHANY'S APPLICATION BECAUSE TWO STOCKHOLDERS,
ALLEGED TO DOMINATE ALLEGHANY, DID NOT JOIN IN THE APPLICATION AND
THEREFORE IN THE ABSENCE OF THOSE TWO INDISPENSABLE PARTIES, THE
COMMISSION HAD NO JURISDICTION TO PROCEED.  BUT IN THE MARSHALL
TRANSPORT CASE, THE COMMISSION WAS REFUSING TO APPROVE A SUBSIDIARY'S
APPLICATION TO ACQUIRE CONTROL OF THE PROPERTY AND OPERATING RIGHTS OF
ANOTHER CARRIER UNLESS THE NON-CARRIER PARENT SUBMITTED ITSELF TO THE
COMMISSION'S JURISDICTION, AND THE COURT UPHELD THE COMMISSION'S POWER
TO REFUSE TO APPROVE THE APPLICATION. 

ALTHOUGH THE COURT IN THAT CASE USED LANGUAGE OF "JURISDICTION," THE
PROBLEM IS NOT STRICTLY JURISDICTIONAL IN THE SENSE THAT IF THE
COMMISSION WRONGLY DECIDES THAT CORPORATION OR PERSON A DOES NOT
"CONTROL" NON-CARRIER B (WHICH IS "CONSIDERED AS A CARRIER") AND
THEREFORE THAT A NEED NOT JOIN B'S APPLICATION TO ACQUIRE CONTROL OF C,
THE COMMISSION LOSES JURISDICTION OVER B, THE POWER TO REGULATE B. THE
COMMISSION'S JURISDICTION OVER A NON-CARRIER DEPENDS ON WHETHER THE
ACTIVITIES OF THE NON-CARRIER FALL WITHIN SEC. 5(2) AND (3) AND DOES
NOT DEPEND ON THE ACTION OF THE PARENT.  FOR EXAMPLE, IF ALLEGHANY WERE
CONTENDING THAT IT COULD RESHUFFLE THE WHOLE CENTRAL SYSTEM WITHOUT
COMMISSION APPROVAL, ALLEGING THAT THE COMMISSION HAD NO JURISDICTION
OVER IT THROUGH FAILURE TO JOIN TWO STOCKHOLDERS CONTROLLING IT IN THE
ORIGINAL STATUS ORDER PROCEEDINGS, THIS WHOLE PROBLEM WOULD APPEAR IN A
CLEARER CONTEXT.  THE BASIS OF THE COMMISSION'S JURISDICTION IN THE
PRESENT CASE IS ALLEGHANY'S STATUS AS "A PERSON WHICH IS NOT A CARRIER
AND WHICH HAS CONTROL OF ONE OR MORE CARRIERS," SEEKING PERMISSION "TO
ACQUIRE CONTROL OF ANOTHER CARRIER THROUGH OWNERSHIP OF ITS STOCK OR
OTHERWISE  ...  ."  THE FAILURE TO JOIN TWO STOCKHOLDERS ALLEGED TO
CONTROL ALLEGHANY DOES NOT OUST THE COMMISSION OF JURISDICTION.  SINCE
THAT IS SO, THE STATUS ORDER SUBMITTING ALLEGHANY TO THE COMMISSION'S
JURISDICTION CANNOT BE ATTACKED ON THAT BASIS. 

APPELLEES FURTHER ARGUE, AND THE DISTRICT COURT HELD, 134 F. SUPP.,
AT 147-149 AND 138 F. SUPP., AT 136-137, THAT UNDER SECS. 5(2)(B) AND
17(3), APPELLEES WERE ENTITLED TO AN EVIDENTIARY HEARING OF SOME SORT
IN THE MERGER-STATUS ORDER PROCEEDING (AS DISTINGUISHED FROM THE
SUBSEQUENT PREFERRED STOCK PROCEEDING) EVEN THOUGH THE COMMISSION HAD
DISCRETION TO DISPENSE WITH A "PUBLIC HEARING."  SECTION 5(2)(B), IN
ITS RELEVANT PORTION, PROVIDES: 

"WHENEVER A TRANSACTION IS PROPOSED UNDER SUBPARAGRAPH (A)  ...  THE
COMMISSION SHALL NOTIFY THE GOVERNOR OF EACH STATE IN WHICH ANY PART OF
THE PROPERTIES OF THE CARRIERS INVOLVED IN THE PROPOSED TRANSACTION IS
SITUATED, AND ALSO SUCH CARRIERS AND THE APPLICANT OR APPLICANTS  ...
AND SHALL AFFORD REASONABLE OPPORTUNITY FOR INTERESTED PARTIES TO BE
HEARD.  ... A PUBLIC HEARING SHALL BE HELD IN ALL CASES WHERE CARRIERS
BY RAILROAD ARE INVOLVED UNLESS THE COMMISSION DETERMINES THAT A PUBLIC
HEARING IS NOT NECESSARY IN THE PUBLIC INTEREST  ...  ."  54 STAT. 906,
AS AMENDED, 63 STAT. 485-486, 49 U.S.C. SEC. 5(2)(B). 

COMMISSION, A DIVISION, INDIVIDUAL COMMISSIONER, OR BOARD SHALL BE
PUBLIC UPON THE REQUEST OF ANY PARTY INTERESTED."  54 STAT. 914, 49
U.S.C. SEC. 17(3). 

WE NEED NOT DETERMINE THE BOUNDS OF THE COMMISSION'S POWER TO
DISPENSE WITH, OR LIMIT, HEARINGS UNDER SEC. 5(2)(B), FOR APPELLEES'
CLAIM OF A RIGHT TO A HEARING IN THE MERGER-STATUS ORDER PROCEEDING
MUST FAIL FOR ANOTHER REASON - LACK OF THE REQUISITE INTEREST OF
"INTERESTED PARTIES." 

THE REFERENCE IN SEC. 5 TO "INTERESTED PARTIES," LIKE THE REFERENCE
IN SEC. 1(20) TO "PARTY IN INTEREST," MUST BE INTERPRETED IN ACCORDANCE
WITH THE RULES RELEVANT TO STANDING TO BECOME PARTIES IN PROCEEDINGS
UNDER THE INTERSTATE COMMERCE ACT.  A HEARING UNDER THAT ACT IS NOT
LIKE A LEGISLATIVE HEARING AND "INTEREST" IS NOT EQUIVALENT TO
"CONCERN."  IT MAY NOT ALWAYS BE EASY TO APPLY IN PARTICULAR CASES THE
USUAL FORMULATION OF THE GENERAL PRINCIPLE GOVERNING SUCH STANDING -
E.G., "THE COMPLAINT MUST SHOW THAT PLAINTIFF HAS, OR REPRESENTS OTHERS
HAVING, A LEGAL RIGHT OR INTEREST THAT WILL BE INJURIOUSLY AFFECTED BY
THE ORDER."  MOFFAT TUNNEL LEAGUE V. UNITED STATES, 289 U.S. 113, 119. 
IN EACH CASE, THE SUFFICIENCY OF THE "INTEREST" IN THESE SITUATIONS
MUST BE DETERMINED WITH REFERENCE TO THE PARTICULAR CONTEXT IN WHICH
THE PARTY SEEKS TO ASSERT ITS POSITION. 

APPELLEES ASSERT THREE GROUNDS OF INTEREST IN THE MERGER-STATUS ORDER
PROCEEDING:  THAT THEY WERE COMMON STOCKHOLDERS OF ALLEGHANY, THAT THE
ASSERTION OF JURISDICTION BY THE INTERSTATE COMMERCE COMMISSION WOULD
DEPRIVE THEM OF THE BENEFITS OF THE INVESTMENT COMPANY ACT, 54 STAT.
789, 15 U.S.C. SEC. 80A-1 ET SEQ., AND THAT THE PROPOSED PREFERRED
STOCK ISSUE WAS UNFAIR. 

THE FACT THAT APPELLEES WERE COMMON STOCKHOLDERS OF ALLEGHANY IS
INSUFFICIENT "INTEREST."  THE PROCEEDING BEFORE THE COMMISSION WAS TO
DETERMINE WHETHER THE JEFFERSONVILLE-BIG FOUR MERGER WAS A TRANSACTION
REQUIRING COMMISSION APPROVAL AS AN ACQUISITION OF CONTROL BY "A PERSON
WHICH IS NOT A CARRIER AND WHICH HAS CONTROL OF ONE OR MORE CARRIERS"
OF "ANOTHER CARRIER THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE  ...
."  54 STAT. 905, 49 U.S.C. SEC.  5(2)(A)(I).  UNLIKE THE SUBSEQUENT
PREFERRED STOCK ORDER WHOSE THREATENED FINANCIAL INJURY TO APPELLEES
WAS SUFFICIENT TO CONFER STANDING TO BRING THE PRESENT PROCEEDINGS, THE
MERGER AGREEMENT HAD NO SPECIAL EFFECT ON APPELLEES OR ON COMMON
STOCKHOLDERS OF ALLEGHANY.  SEE NEW YORK CENTRAL SECURITIES CORP. V.
UNITED STATES, 287 U.S. 12, 19-20.  NOR DID THE PROPOSED STATUS ORDER
THAT ALLEGHANY SHOULD BE "CONSIDERED AS A CARRIER" AND THEREFORE
REGULATED BY THE INTERSTATE COMMERCE COMMISSION BY ITSELF POSE ANY
INDIVIDUALIZED THREAT TO THE WELFARE OF THE APPELLEES. 

RELIANCE ON THE ALLEGED BENEFITS OF PROTECTION UNDER THE INVESTMENT
COMPANY ACT SUBTLY BEGS THE QUESTION.  ALLEGHANY WOULD BE SUBJECT TO
REGULATION UNDER THE INVESTMENT COMPANY ACT ONLY IF THE INTERSTATE
COMMERCE COMMISSION LACKED JURISDICTION TO REGULATE IT UNDER SEC. 5 OF
THE INTERSTATE COMMERCE ACT.  THE FACT THAT THERE MAY BE ANOTHER ACT
THAT GIVES APPELLEES GREATER PROTECTION AS INVESTORS IS IMMATERIAL TO
THE APPELLEES' RIGHT TO A HEARING IN THE MERGER-STATUS ORDER
PROCEEDING.  THE QUESTION HERE IS WHETHER THE PROPOSED TRANSACTION
FALLS WITHIN THE INTERSTATE COMMERCE COMMISSION'S JURISDICTION, NOT
WHAT THE CONSEQUENCES WILL BE IF IT DOES NOT.  NO SPECIAL THREAT TO
APPELLEES ARISES FROM THE MERE ASSERTION OF COMMISSION JURISDICTION TO
REGULATE ALLEGHANY.  WHEN SUBSEQUENT COMMISSION ACTION IN APPROVING THE
ALLEGHANY'S NEW PREFERRED STOCK ISSUE DID PRESENT A SPECIAL THREAT TO
APPELLEES, THAT PROVIDED THE "INTEREST" SUFFICIENT TO ATTACK THE
COMMISSION'S JURISDICTION IN THE PRESENT PROCEEDING.  BUT THIS THREAT
COULD NOT RETROACTIVELY CONFER UPON THEM THE RIGHT TO A HEARING IN THE
MERGER-STATUS ORDER PROCEEDING, IN WHICH THEY HAD NO "INTEREST." 

APPELLEES' CLAIM THAT THEY WERE ENTITLED TO A HEARING IN THE
PREFERRED STOCK PROCEEDING IS GOVERNED BY SEC. 20A(6) OF THE ACT, WHICH
PROVIDES THAT "THE COMMISSION MAY HOLD HEARINGS, IF IT SEES FIT, TO
ENABLE IT TO DETERMINE ITS DECISION UPON THE APPLICATION FOR
AUTHORITY."  41 STAT. 495, 49 U.S.C. SEC. 20A(6). 

FOR ALL THESE REASONS, THE JUDGMENT OF THE DISTRICT COURT MUST BE
REVERSED AND THE CASE REMANDED FOR CONSIDERATION BY THE DISTRICT COURT
OF APPELLEES' CLAIM, NOT PREVIOUSLY DISCUSSED, THAT THE PREFERRED STOCK
ISSUE AS APPROVED BY THE COMMISSION WAS IN VIOLATION OF THE INTERSTATE
COMMERCE ACT.   THIS DISPOSITION RENDERS IT NEEDLESS TO PASS ON
APPELLEES' MOTION TO DISMISS IN NO. 82.  REVERSED AND REMANDED. 

FN1  SECTION 5(3) PROVIDES:  "WHENEVER A PERSON WHICH IS NOT A
CARRIER IS AUTHORIZED, BY AN ORDER ENTERED UNDER PARAGRAPH (2), TO
ACQUIRE CONTROL OF ANY CARRIER OR OF TWO OR MORE CARRIERS, SUCH PERSON
THEREAFTER SHALL, TO THE EXTENT PROVIDED BY THE COMMISSION IN SUCH
ORDER, BE CONSIDERED AS A CARRIER SUBJECT TO SUCH OF THE FOLLOWING
PROVISIONS AS ARE APPLICABLE TO ANY CARRIER INVOLVED IN SUCH
ACQUISITION OF CONTROL:  SECTION 20(1) TO (10), INCLUSIVE, OF THIS
PART, SECTIONS 204(A)(1) AND (2) AND 220 OF PART II, AND SECTION 313 OF
PART III, (WHICH RELATE TO REPORTS, ACCOUNTS, AND SO FORTH, OF
CARRIERS), AND SECTION 20A(2) TO (11), INCLUSIVE, OF THIS PART, AND
ASSUMPTIONS OF LIABILITY OF CARRIERS), INCLUDING IN EACH CASE THE
PENALTIES APPLICABLE IN THE CASE OF VIOLATIONS OF SUCH PROVISIONS.  IN
THE APPLICATION OF SUCH PROVISIONS OF SECTION 20A OF THIS PART AND OF
SHALL AUTHORIZE THE ISSUE OR ASSUMPTION APPLIED FOR ONLY IF IT FINDS
THAT SUCH ISSUE OR ASSUMPTION IS CONSISTENT WITH THE PROPER PERFORMANCE
OF ITS SERVICE TO THE PUBLIC BY EACH CARRIER WHICH IS UNDER THE CONTROL
OF SUCH PERSON, THAT IT WILL NOT IMPAIR THE ABILITY OF ANY SUCH CARRIER
TO PERFORM SUCH SERVICE, AND THAT IT IS OTHERWISE CONSISTENT WITH THE
PUBLIC INTEREST."  54 STAT. 907, 49 U.S.C. SEC. 5(3). 

FN2  "NOTWITHSTANDING SUBSECTIONS (A) AND (B), NONE OF THE FOLLOWING
PERSONS IS AN INVESTMENT COMPANY WITHIN THE MEANING OF THIS TITLE: 

     *         *         *         *         * 

"  ...  ANY COMPANY SUBJECT TO REGULATION UNDER THE INTERSTATE
COMMERCE ACT, OR ANY COMPANY WHOSE ENTIRE OUTSTANDING CAPITAL STOCK IS
OWNED OR CONTROLLED BY SUCH A COMPANY: PROVIDED, THAT THE ASSETS OF THE
CONTROLLED COMPANY CONSIST SUBSTANTIALLY OF SECURITIES ISSUED BY
COMPANIES WHICH ARE SUBJECT TO REGULATION UNDER THE INTERSTATE COMMERCE
ACT."  54 STAT. 789, 799, 15 U.S.C. SEC. 80A-3(C)(9). 

FN3  ON THIS APPEAL, THE SECURITIES AND EXCHANGE COMMISSION, AS
AMICUS, TOOK NO POSITION ON WHETHER THE DISTRICT COURT "CORRECTLY
CONSTRUED THE RELEVANT PROVISIONS OF THE INTERSTATE COMMERCE ACT OR
ORDERS OF THE ICC THEREUNDER; NOR ON THE EXTENT OF THE JURISDICTION OF
THE COURT BELOW."  THE VIEWS OF THE SECURITIES AND EXCHANGE COMMISSION
WERE SET FORTH ONLY IN RELATION TO ISSUES UNDER THE INVESTMENT COMPANY
ACT. 

FN4  AFTER THE PRELIMINARY INJUNCTION WAS GRANTED, ALLEGHANY MOVED IN
THE DISTRICT COURT FOR SUSPENSION OF THE INJUNCTION PENDING APPEAL TO
THIS COURT.  THE TWO JUDGES WHO HEARD THE MOTION DIVIDED, AND THE
MOTION WAS THEREFORE DENIED.  ON APPLICATION TO CIRCUIT JUSTICE HARLAN,
A STAY WAS GRANTED WITH RESPECT TO THAT PORTION OF THE NEW PREFERRED
STOCK THAT HAD BEEN ISSUED BEFORE THE DISTRICT COURT'S INJUNCTION WAS
GRANTED.  75 S. CT. 912.  THE NEW YORK STOCK EXCHANGE, HOWEVER,
CONTINUED TO SUSPEND TRADING IN THE NEW PREFERRED STOCK. 

FN5  SEE ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125,
144, WHERE THE FACT THAT THE "CONTESTED ORDER DETERMINING THE STATUS OF
THE ROCHESTER NECESSARILY AND IMMEDIATELY CARRIED DIRECTION OF
OBEDIENCE TO PREVIOUSLY FORMULATED MANDATORY ORDERS ADDRESSED GENERALLY
TO ALL CARRIERS  ...  IN CONJUNCTION WITH THE OTHER ORDERS, MADE
DETERMINATION OF THE STATUS OF THE ROCHESTER A REVIEWABLE ORDER OF THE
COMMISSION."  WHETHER REVIEWABILITY OF A STATUS ORDER, WITHOUT MORE, BE
DEEMED A MATTER OF STANDING TO REVIEW OR A MATTER OF FINALITY OF
ADMINISTRATIVE ACTION, THE BASIS FOR DECISION IS THE SAME:  HAS THE
ACTION OF THE ADMINISTRATIVE AGENCY THREATENED THE INTERESTS OF THE
COMPLAINANT, WHETHER CORPORATION OR, AS HERE, STOCKHOLDER OTHERWISE
QUALIFIED TO SUE, SUFFICIENTLY TO ALLOW ATTACK?  (THIS DOES NOT MEAN OF
COURSE THAT THE SAME AGENCY ACTION THAT ALLOWS ATTACK BY ONE ALLOWS
ATTACK BY THE OTHER.)    FN6  A BRIEF SUMMARY OF THE HISTORY OF SEC. 5
IS SET FORTH IN ST. JOE PAPER CO. V. ATLANTIC COAST LINE R. CO., 347
U.S. 298, 315 (APPENDIX). 

FN7  "INVESTING THE FEDERAL COMMUNICATIONS COMMISSION WITH THE DUTY
OF ASCERTAINING 'CONTROL' OF ONE COMPANY BY ANOTHER AS THE BASIS FOR
THE COMMISSION'S JURISDICTION, CONGRESS DID NOT IMPLY ARTIFICIAL TESTS
OF CONTROL.  THIS IS AN ISSUE OF FACT TO BE DETERMINED BY THE SPECIAL
CIRCUMSTANCES OF EACH CASE.  SO LONG AS THERE IS WARRANT IN THE RECORD
FOR THE JUDGMENT OF THE EXPERT BODY IT MUST STAND.  THE SUGGESTION THAT
THE REFUSAL TO REGARD THE NEW YORK OWNERSHIP OF ONLY ONE THIRD OF THE
COMMON STOCK OF THE ROCHESTER AS CONCLUSIVE OF THE FORMER'S LACK OF
CONTROL OF THE LATTER SHOULD INVALIDATE THE COMMISSION'S FINDING,
DISREGARDS ACTUALITIES IN SUCH INTERCORPORATE RELATIONS.  HAVING FOUND
THAT THE RECORD PERMITTED THE COMMISSION TO DRAW THE CONCLUSION THAT IT
DID, A COURT TRAVELS BEYOND ITS PROVINCE TO EXPRESS CONCURRENCE
THEREWITH AS AN ORIGINAL QUESTION.  'THE JUDICIAL FUNCTION IS EXHAUSTED
WHEN THERE IS FOUND TO BE A RATIONAL BASIS FOR THE CONCLUSIONS APPROVED
BY THE ADMINISTRATIVE BODY.'  MISSISSIPPI VALLEY BARGE LINE CO. V.
UNITED STATES, 292 U.S. 282, 286-287; SWAYNE & HOYT, LTD. V. UNITED
STATES, 300 U.S. 297, 303, ET SEQ."  307 U.S., AT 145-146. 

FN8  "THIS PHRASE "CONTROL" HAS BEEN USED BECAUSE IT HAS RECENTLY HAD
THE BENEFIT OF INTERPRETATION BY THE SUPREME COURT IN THE CASE OF
ROCHESTER TELEPHONE CORP. V. UNITED STATES (307 U.S. 125, DECIDED APRIL
17, 1939)."  H.R. REP. NO. 2832, 76TH CONG., 3D SESS. 63.  (THIS WAS
THE CONFERENCE REPORT.) 

FN9  THE UNITED STATES, WHICH HAD SUPPORTED THE ORDERS OF THE
INTERSTATE COMMERCE COMMISSION IN THE DISTRICT COURT PROCEEDINGS, ON
THIS APPEAL HAS TAKEN THE POSITION THAT THE JUDGMENT OF THE DISTRICT
COURT SHOULD BE AFFIRMED BECAUSE THE MERGER OF THE JEFFERSONVILLE INTO
THE BIG FOUR DID NOT INVOLVE AN "ACQUISITION OF CONTROL" OVER THE
JEFFERSONVILLE BY ALLEGHANY. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

ALLEGHANY CORPORATION, THOUGH NOT A CARRIER AS THAT TERM IS USED IN
THE INTERSTATE COMMERCE ACT, IS SUBJECT TO SUPERVISION BY THE
INTERSTATE COMMERCE COMMISSION, 49 U.S.C.  SEC. 5(3), AND EXEMPT FROM
THE CONTROL OF THE SECURITIES AND EXCHANGE COMMISSION UNDER THE
INVESTMENT COMPANY ACT OF 1940, 15 U.S.C. SEC. 80A-3(C)(9), IF IT HAS
THE APPROVAL OF THE INTERSTATE COMMERCE COMMISSION TO "ACQUIRE CONTROL
OF TWO OR MORE CARRIERS THROUGH OWNERSHIP OF THEIR STOCK OR
OTHERWISE."  49 U.S.C. SEC. 5(2)(A)(I). 

"CONTROL" AS USED IN SEC. 5 IS DEFINED IN SEC. 1(3)(B): 

"  ...  TO INCLUDE ACTUAL AS WELL AS LEGAL CONTROL, WHETHER
MAINTAINED OR EXERCISED THROUGH OR BY REASON OF THE METHOD OF OR
CIRCUMSTANCES SURROUNDING ORGANIZATION OR OPERATION, THROUGH OR BY
COMMON DIRECTORS, OFFICERS, OR STOCKHOLDERS, A VOTING TRUST OR TRUSTS,
A HOLDING OR INVESTMENT COMPANY OR COMPANIES, OR THROUGH OR BY ANY
OTHER DIRECT OR INDIRECT MEANS; AND TO INCLUDE THE POWER TO EXERCISE
CONTROL." 

"CONTROL" THUS MEANS "ACTUAL" AS WELL AS "LEGAL" CONTROL AND INCLUDES
THE EXERCISE OF "INDIRECT" AS WELL AS "DIRECT" MEANS.  IT SEEMS
OBVIOUS, THEREFORE - SO OBVIOUS AS TO BE BEYOND THE REALM OF DISPUTE OR
ARGUMENT - THAT IF ONE HAS "ACTUAL" CONTROL THROUGH "INDIRECT" MEANS
AND CHANGES THE MEANS WHEREBY HE COMMANDS THAT POWER, HE HAS ONLY
RETAINED "CONTROL," NOT ACQUIRED IT WITHIN THE MEANING OF SEC. 5(3). 
FOR ONE WHO HAS "CONTROL," AS DEFINED, DOES NOT ACQUIRE IT WHEN HE
MERELY CHANGES THE METHOD OR MEANS OF ITS EXERCISE.  YET IT IS CLEAR
THAT ALLEGHANY DID NO MORE THAN THAT. 

ALLEGHANY HAS CONTROL OF THE NEW YORK CENTRAL. 

MOST OF THE STOCK OF THE BIG FOUR (CLEVELAND, CINCINNATI, CHICAGO, &
ST. LOUIS R. CO.)  IS OWNED BY CENTRAL.  THE LINES OF THE BIG FOUR ARE
OPERATED BY CENTRAL AS LESSEE. 

THERE IS A BRIDGE COMPANY (THE LOUISVILLE & JEFFERSONVILLE BRIDGE &
R. CO.)  WHOSE STOCK, PRIOR TO THE TRANSACTION ABOUT TO BE DISCUSSED,
WAS OWNED BY THE BIG FOUR AND HELD BY CENTRAL UNDER THE LEASE. 

ALLEGHANY, CENTRAL, THE BIG FOUR, AND THE BRIDGE COMPANY APPLIED TO
THE INTERSTATE COMMERCE COMMISSION FOR PERMISSION TO MERGE THE BRIDGE
COMPANY INTO THE BIG FOUR AND FOR CENTRAL THEREAFTER TO OPERATE THE
PROPERTIES OF THE BRIDGE COMPANY UNDER THE BIG FOUR LEASE.  THE MERGER
WAS AN INTRA-SYSTEM REARRANGEMENT OF PROPERTIES THAT DID NOT AFFECT ONE
WHIT ALLEGHANY'S "CONTROL" IN THE STATUTORY SENSE OF THE BRIDGE
COMPANY.  BEFORE THE MERGER ALLEGHANY HAD "CONTROL" OF THE BRIDGE
COMPANY.  IT THEREFORE DID NOT "ACQUIRE CONTROL" BUT ONLY RETAINED IT
AS A RESULT OF THE MERGER. 

THERE WAS ANOTHER TRANSACTION WHICH ALLEGHANY SAYS CAUSED IT TO
"ACQUIRE CONTROL" OF A CARRIER WITHIN THE MEANING OF SEC. 5(3) AND
THEREFORE TO HAVE A CARRIER STATUS UNDER THE INTERSTATE COMMERCE ACT. 
ALLEGHANY AND CENTRAL APPLIED TO THE COMMISSION FOR PERMISSION TO
ACQUIRE THE STOCK OF BOSTON & ALBANY R. CO., PITTSFIELD & NORTH ADAMS
R. CORP., AND WARE RIVER R. CO. CENTRAL WAS OPERATING THE PROPERTIES OF
THOSE THREE ROADS UNDER LEASES - TWO OF THE LEASES BEING FOR 99 YEARS
EACH AND ONE FOR 999 YEARS.  THE COMMISSION APPROVED THIS STOCK
ACQUISITION BY CENTRAL. 

THERE ARE TWO REASONS WHY THIS TRANSACTION DID NOT GIVE ALLEGHANY A
CARRIER STATUS.  IN THE FIRST PLACE, SEC. 5(3) GIVES A NONCARRIER THE
STATUS OF A CARRIER ONLY "TO THE EXTENT PROVIDED BY THE COMMISSION IN
SUCH ORDER."  THE COMMISSION MADE NO SUCH ORDER IN CONNECTION WITH THE
ACQUISITION OF THE STOCK OF THE THREE NEW ENGLAND CARRIERS. 

IN THE SECOND PLACE ALLEGHANY, THROUGH CENTRAL, HAD "ACTUAL CONTROL"
OF THOSE THREE CARRIERS PRIOR TO THE ACQUISITION OF THEIR STOCK.  THAT
"CONTROL" WAS EVIDENT BY THE LONG-TERM LEASES OVER THE PROPERTIES OF
THOSE CARRIERS.  ALLEGHANY, THEREFORE, DID NOT "ACQUIRE CONTROL" WHEN
CENTRAL ACQUIRED THE STOCK OF THE THREE COMPANIES.  THE FORM OF
ALLEGHANY'S CONTROL CHANGED BY THE STOCK ACQUISITION.   BUT THE
FINANCIAL MASTER OF THE THREE NEW ENGLAND CARRIERS WAS THE SAME BEFORE
CENTRAL ACQUIRED THEIR STOCK, AS IT WAS AFTERWARDS.  AS STATED BY THE
DISTRICT COURT, WHERE A NONCARRIER IS "ALREADY IN INDIRECT CONTROL OF A
CARRIER" AND THE TRANSACTION RELIED UPON "STILL LEAVES THE NON-CARRIER
IN INDIRECT CONTROL OF SUCH PROPERTY, NO ACQUISITION BY THE NON-CARRIER
RESULTS FROM THE MERGER."  138 F. SUPP. 123, 127-128. 

THE COURT THAT MADE THAT RULING HAD AS ONE OF ITS MEMBERS THE LATE
JUDGE FRANK, WHO HAD NO SUPERIOR WHEN IT CAME TO AN UNDERSTANDING OF
THE WAYS OF HIGH FINANCE AND TO AN ANALYSIS OF REGULATORY MEASURES
DEALING WITH IT.  I SEE NO ANSWER TO WHAT JUDGE FRANK AND HIS
COLLEAGUES CONCLUDED ON THIS PHASE OF THE CASE. 

THAT VIEW OF SEC. 5(2) IS PLAINLY REFLECTED IN THE LEGISLATIVE
HISTORY.  THIS CONTROL OVER NONCARRIERS WHO ACQUIRED CONTROL OF
CARRIERS WAS INTRODUCED IN 1933.  COMMISSIONER EASTMAN POINTED OUT TO
CONGRESS THE EVIL WHICH WAS TO BE REMEDIED - "HOLDING COMPANIES HAVE
BEEN BRINGING CARRIERS UNDER COMMON CONTROL AND HENCE COMBINING THEM
WITHOUT ANY SUPERVISION OR APPROVAL BY THE COMMISSION."  (FN1)  THE
SENATE REPORT STATED THAT THE AMENDMENT GAVE THE COMMISSION CONTROL
OVER HOLDING COMPANIES THAT "EFFECT CONSOLIDATIONS WITHOUT APPROVAL OF
THE COMMISSION."  (FN2)  TO "ACQUIRE CONTROL" WITHIN THE MEANING OF
SEC. 5(2) MEANS THEN TO PUT UNDER COMMON CONTROL CARRIERS THAT
PREVIOUSLY WERE SEPARATE.  WE WOULD STRAIN TO FIND A CONSTRUCTION WHICH
WOULD ENABLE HOLDING COMPANIES TO RUN FOR SHELTER UNDER THE ACT MERELY
BECAUSE, WITHIN THE SYSTEM THEY CONTROL, THERE HAVE BEEN CORPORATE
REARRANGEMENTS OR READJUSTMENTS THAT CHANGE THE INTERNAL STRUCTURE OF
THE SYSTEM. 

ALLEGHANY POINTS WITH ALARM TO THE LOOPHOLES IN THE LAW THAT WILL BE
CREATED IF IT IS HELD THAT ALLEGHANY DID NOT "ACQUIRE" CONTROL IN
CONNECTION WITH THE BRIDGE COMPANY MERGER AND THE ACQUISITION OF THE
STOCK OF THE NEW ENGLAND CARRIERS.  NO LOOPHOLES WILL BE CREATED. 
CENTRAL COULD DO NEITHER OF THOSE TWO THINGS WITHOUT THE APPROVAL OF
THE COMMISSION, SINCE SEC. 5(2)(A) REQUIRES COMMISSION APPROVAL OF MANY
INTRA-SYSTEM TRANSACTIONS BY CARRIERS.  THAT IS THE FORCE OF THE
HOLDING IN NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S.
12.  THE LOOPHOLE THAT IS CREATED COMES FROM GRANTING ALLEGHANY A
CARRIER STATUS.  THEN ALLEGHANY ESCAPES THE FAR MORE RIGOROUS
SUPERVISION WHICH IS IMPOSED ON IT BY THE INVESTMENT COMPANY ACT. 

THE ONLY OTHER MEANS BY WHICH ALLEGHANY COULD HAVE ACQUIRED A CARRIER
STATUS WAS IN CONNECTION WITH FINANCIAL TRANSACTIONS LONG SINCE
LIQUIDATED.  ALLEGHANY HAD A CARRIER STATUS, GRANTED IT BY THE
INTERSTATE COMMERCE COMMISSION, WHEN IT ACQUIRED THE STOCK OF THE
CHESAPEAKE & OHIO R. CO. AND TWO OTHER CARRIERS.  THAT ORDER, ISSUED IN
1945, GAVE IT A CARRIER STATUS "UNLESS AND UNTIL OTHERWISE ORDERED" BY
THE COMMISSION.  THAT ORDER WAS TERMINATED BY THE COMMISSION ON MAY 24,
1955. 

THE APPROVAL OF THE PREFERRED STOCK ISSUE THAT IS INVOLVED IN THIS
LITIGATION DID NOT COME UNTIL LATER, VIZ. JUNE 22, 1955.  AT THAT TIME
IT SEEMS PLAIN THAT ALLEGHANY HAD NO CARRIER STATUS AND COULD NOT
OBTAIN ONE ON THE BASIS OF THE INTERCORPORATE TRANSACTIONS ON WHICH IT
RELIES. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

FN1  HEARINGS, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON
H.R. 9059, 72D CONG., 1ST SESS., P. 250. 

FN2  S. REP. NO. 87, 73D CONG., 1ST SESS., P. 1. 
..END :





AUTOMOBILE CLUB OF MICHIGAN V. COMMISSIONER OF INTERNAL REVENUE 353 U.S.
180 


NO. 89.  ARGUED MARCH 6-7, 1957 - DECIDED APRIL 22, 1957 - 230 F.2D 585,
AFFIRMED. 


THE COMMISSIONER OF INTERNAL REVENUE, BY RULINGS IN 1934 AND 1938,
EXEMPTED PETITIONER AUTOMOBILE CLUB FROM INCOME TAXES AS A "CLUB"
WITHIN THE MEANING OF PROVISIONS CORRESPONDING TO SEC. 101(9) OF THE
INTERNAL REVENUE CODE OF 1939.  IN 1945, THE COMMISSIONER REVOKED HIS
1934 AND 1938 RULINGS, WHICH WERE BASED UPON A MISTAKE OF LAW, AND
DIRECTED PETITIONER TO FILE RETURNS FOR 1943 AND SUBSEQUENT YEARS.  THE
COMMISSIONER ALSO DETERMINED THAT PREPAID MEMBERSHIP DUES RECEIVED BY
PETITIONER SHOULD BE TREATED AS INCOME IN THE YEAR RECEIVED.  THE TAX
COURT SUSTAINED THE COMMISSIONER'S DETERMINATIONS, AND THE COURT OF
APPEALS AFFIRMED.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 181-190. 

1.  THE COMMISSIONER HAD POWER TO APPLY THE REVOCATION RETROACTIVELY
TO 1943 AND 1944.  PP. 183-185. 

(A)  THE DOCTRINE OF EQUITABLE ESTOPPEL DOES NOT BAR CORRECTION BY
THE COMMISSIONER OF A MISTAKE OF LAW.  P. 183. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, THE COMMISSIONER DID NOT ABUSE
THE DISCRETION VESTED IN HIM BY SEC. 3791(B) OF THE 1939 CODE.  PP. 184
186. 

(A)  IT IS CLEAR FROM THE LANGUAGE AND LEGISLATIVE HISTORY OF SEC.
3791(B) THAT IT CONFIRMED THE AUTHORITY OF THE COMMISSIONER TO CORRECT
ANY RULING, REGULATION OR TREASURY DECISION RETROACTIVELY, AND
EMPOWERED HIM, IN HIS DISCRETION, TO LIMIT RETROACTIVE APPLICATION TO
THE EXTENT NECESSARY TO AVOID INEQUITABLE RESULTS.  P. 184. 

(B)  HELVERING V. REYNOLDS CO., 306 U.S. 110, DISTINGUISHED.  PP. 184
185. 

(C)  HAVING DEALT WITH PETITIONER UPON THE SAME BASIS AS OTHER
AUTOMOBILE CLUBS, THE COMMISSIONER DID NOT ABUSE HIS DISCRETION.  PP.
185-186. 

(D)  THE 2-YEAR DELAY IN PROCEEDING WITH PETITIONER'S CASE DID NOT,
IN THE CIRCUMSTANCES, VITIATE THE COMMISSIONER'S ACTION.  P. 186. 

3.  IN THE CIRCUMSTANCES OF THIS CASE, ASSESSMENT OF TAX DEFICIENCIES
AGAINST PETITIONER FOR 1943 AND 1944 WAS NOT BARRED BY LIMITATIONS
UNDER SECS. 275(A) AND 276(B) OF THE 1939 CODE.  PP. 186-187. 

(A)  THE EXPRESS CONDITION PRESCRIBED BY CONGRESS WAS THAT THE
STATUTE WAS TO RUN AGAINST THE UNITED STATES FROM THE DATE OF THE
ACTUAL FILING OF THE RETURN, AND NO ACTION OF THE COMMISSIONER'S CAN
CHANGE OR MODIFY THE CONDITIONS UNDER WHICH THE UNITED STATES CONSENTS
TO THE RUNNING OF THE STATUTE OF LIMITATIONS AGAINST IT.  P. 187. 

(B)  FORM 990 RETURNS ARE NOT TAX RETURNS WITHIN THE CONTEMPLATION OF
SEC. 275(A) OF THE 1939 CODE.  PP. 187-188. 

4.  THE COMMISSIONER'S DETERMINATION THAT THE ENTIRE AMOUNT OF
PREPAID DUES RECEIVED IN EACH YEAR BY PETITIONER SHOULD BE REPORTED AS
INCOME FOR THAT YEAR (INSTEAD OF BEING ALLOCATED OVER THE FOLLOWING 12
MONTHS) DID NOT EXCEED THE PERMISSIBLE LIMITS OF THE COMMISSIONER'S
DISCRETION UNDER SEC. 41 OF THE 1939 CODE.  PP. 188-190. 

AUTOMOBILE CLUB OF MICHIGAN V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN 1945, THE COMMISSIONER OF INTERNAL REVENUE REVOKED HIS 1934 AND
1938 RULINGS EXEMPTING THE PETITIONER FROM FEDERAL INCOME TAXES, AND
RETROACTIVELY APPLIED THE REVOCATION TO 1943 AND 1944.  THE
COMMISSIONER ALSO DETERMINED THAT PREPAID MEMBERSHIP DUES RECEIVED BY
THE PETITIONER SHOULD BE TAKEN INTO INCOME IN THE YEAR RECEIVED,
REJECTING THE PETITIONER'S METHOD OF REPORTING AS INCOME ONLY THAT PART
OF THE DUES AS WAS RECORDED ON PETITIONER'S BOOKS AS EARNED IN THE TAX
YEAR.  THE TAX COURT SUSTAINED THE COMMISSIONER'S DETERMINATIONS, (FN1)
AND THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED.  (FN2)  THIS
COURT GRANTED CERTIORARI.  (FN3) 

THE COMMISSIONER HAD DETERMINED IN 1934 THAT THE PETITIONER WAS A
"CLUB" ENTITLED TO EXEMPTION UNDER PROVISIONS OF THE INTERNAL REVENUE
LAWS CORRESPONDING TO SEC. 101(9) OF THE INTERNAL REVENUE CODE OF 1939,
(FN4) NOTIFYING THE PETITIONER THAT "  ...  FUTURE RETURNS, UNDER THE
PROVISIONS OF SECTION 101(9)  ...  WILL NOT BE REQUIRED SO LONG AS
THERE IS NO CHANGE IN YOUR ORGANIZATION, YOUR PURPOSES OR METHODS OF
DOING BUSINESS."  IN 1938, THE COMMISSIONER CONFIRMED THIS RULING IN A
LETTER STATING:  "  ...  AS IT APPEARS THAT THERE HAS BEEN NO CHANGE IN
YOUR FORM OF ORGANIZATION OR ACTIVITIES WHICH WOULD AFFECT YOUR STATUS
THE PREVIOUS RULING OF THE BUREAU HOLDING YOU TO BE EXEMPT FROM FILING
RETURNS OF INCOME IS AFFIRMED  ...  ."  ACCORDINGLY THE PETITIONER DID
NOT PAY FEDERAL TAXES FROM 1933 TO 1945.  THE COMMISSIONER REVOKED
THESE RULINGS IN 1945, HOWEVER, AND DIRECTED THE PETITIONER TO FILE
RETURNS FOR 1943 AND SUBSEQUENT YEARS.  (FN5)  PURSUANT TO THIS
DIRECTION, THE PETITIONER FILED, UNDER PROTEST, CORPORATE INCOME AND
EXCESS PROFITS TAX RETURNS FOR 1943, 1944 AND 1945. 

THE COMMISSIONER'S EARLIER RULINGS WERE GROUNDED UPON AN ERRONEOUS
INTERPRETATION OF THE TERM "CLUB" IN SEC. 101(9) AND THUS WERE BASED
UPON A MISTAKE OF LAW.  IT IS CONCEDED THAT IN 1943 AND 1944 PETITIONER
WAS NOT, IN FACT OR IN LAW, A "CLUB" ENTITLED TO EXEMPTION WITHIN THE
MEANING OF SEC. 101(9), AND ALSO THAT PETITIONER IS SUBJECT TO TAXATION
FOR 1945 AND SUBSEQUENT YEARS.  (FN6) IT IS NEVERTHELESS CONTENDED THAT
THE COMMISSIONER HAD NO POWER TO APPLY THE REVOCATION RETROACTIVELY TO
1943 AND 1944, AND THAT, IN ANY EVENT, THE ASSESSMENT OF TAXES AGAINST
PETITIONER FOR 1943 AND 1944 WAS BARRED BY THE STATUTE OF LIMITATIONS. 

THE PETITIONER ARGUES THAT, IN LIGHT OF THE 1934 AND 1938 RULINGS,
THE COMMISSIONER WAS EQUITABLY ESTOPPED FROM APPLYING THE REVOCATION
RETROACTIVELY.  THIS ARGUMENT IS WITHOUT MERIT.  THE DOCTRINE OF
EQUITABLE ESTOPPEL IS NOT A BAR TO THE CORRECTION BY THE COMMISSIONER
OF A MISTAKE OF LAW.  (FN7)  THE DECISION IN STOCKSTROM V.
COMMISSIONER, 88 U.S. APP. D.C. 286, 190 F.2D 283, TO THE EXTENT THAT
IT HOLDS TO THE CONTRARY, IS DISAPPROVED. 

PETITIONER'S RELIANCE ON H.S.D. CO. V. KAVANAGH, 191 F.2D 831, AND
WOODWORTH V. KALES, 26 F.2D 178, IS MISPLACED BECAUSE THOSE CASES DID
NOT INVOLVE CORRECTION OF AN ERRONEOUS RULING OF LAW.  RELIANCE ON
LESAVOY FOUNDATION V. COMMISSIONER, 238 F.2D 589, IS ALSO MISPLACED
BECAUSE THERE THE COURT RECOGNIZED THE POWER IN THE COMMISSIONER TO
CORRECT A MISTAKE OF LAW, BUT HELD THAT IN THE CIRCUMSTANCES OF THE
CASE THE COMMISSIONER HAD EXCEEDED THE BOUNDS OF THE DISCRETION VESTED
IN HIM UNDER SEC. 3791(B) OF THE 1939 CODE.  (FN8) 

THE COMMISSIONER'S ACTION MAY NOT BE DISTURBED UNLESS, IN THE
CIRCUMSTANCES OF THIS CASE, THE COMMISSIONER ABUSED THE DISCRETION
VESTED IN HIM BY SEC. 3791(B) OF THE 1939 CODE.  THAT SECTION
PROVIDES: 

"RETROACTIVITY OF REGULATIONS OR RULINGS.  - THE SECRETARY, OR THE
COMMISSIONER WITH THE APPROVAL OF THE SECRETARY, MAY PRESCRIBE THE
EXTENT, IF ANY, TO WHICH ANY RULING, REGULATION, OR TREASURY DECISION,
RELATING TO THE INTERNAL REVENUE LAWS, SHALL BE APPLIED WITHOUT
RETROACTIVE EFFECT." 

THE PETITIONER CONTENDS THAT THIS SECTION FORBIDS THE COMMISSIONER
TAKING RETROACTIVE ACTION.  ON THE CONTRARY, IT IS CLEAR FROM THE
LANGUAGE OF THE SECTION AND ITS LEGISLATIVE HISTORY (FN9) THAT CONGRESS
THEREBY CONFIRMED THE AUTHORITY OF THE COMMISSIONER TO CORRECT ANY
RULING, REGULATION OR TREASURY DECISION RETROACTIVELY, BUT EMPOWERED
HIM, IN HIS DISCRETION, TO LIMIT RETROACTIVE APPLICATION TO THE EXTENT
NECESSARY TO AVOID INEQUITABLE RESULTS. 

THE PETITIONER, CITING HELVERING V. REYNOLDS CO., 306 U.S. 110,
ARGUES THAT RESORT BY THE COMMISSIONER TO SEC. 3791(B) WAS PRECLUDED IN
THIS CASE BECAUSE THE REPEATED RE-ENACTMENTS OF SEC. 101(9) GAVE THE
FORCE OF LAW TO THE PROVISION OF THE TREASURY REGULATIONS RELATING TO
THAT SECTION.  THESE REGULATIONS PROVIDED THAT WHEN AN ORGANIZATION HAD
ESTABLISHED ITS RIGHT TO EXEMPTION IT NEED NOT THEREAFTER MAKE A RETURN
OF INCOME OR ANY FURTHER SHOWING WITH RESPECT TO ITS STATUS UNLESS IT
CHANGED THE CHARACTER OF ITS OPERATIONS OR THE PURPOSE FOR WHICH IT WAS
ORIGINALLY CREATED.  (FN10) HELVERING V. REYNOLDS CO. IS INAPPLICABLE
TO THIS CASE.  AS STATED BY THE TAX COURT:  "THE REGULATIONS INVOLVED
THERE (HELVERING V. REYNOLDS CO.)  ...  PURPORTED TO DETERMINE WHAT DID
OR DID NOT CONSTITUTE GAIN OR LOSS.  THE REGULATIONS HERE  ...  IN
NOWISE PURPORTED TO DETERMINE WHETHER ANY ORGANIZATION WAS OR WAS NOT
EXEMPT."  (FN11)  THESE REGULATIONS DID NOT PROVIDE THE EXEMPTION OR
INTERPRET SEC. 101(9), BUT MERELY SPECIFIED THE NECESSARY INFORMATION
REQUIRED TO BE FILED IN ORDER THAT THE COMMISSIONER MIGHT RULE WHETHER
OR NOT THE TAXPAYER WAS ENTITLED TO EXEMPTION.  THIS IS THUS NOT A CASE
OF "  ...  ADMINISTRATIVE CONSTRUCTION EMBODIED IN THE REGULATIONS  ...
" WHICH, BY REPEATED RE-ENACTMENT OF SEC. 101(9), "  ...  CONGRESS
MUST BE TAKEN TO HAVE APPROVED  ...  AND THEREBY TO HAVE GIVEN ...  THE
FORCE OF LAW."  HELVERING V. REYNOLDS CO., 306 U.S., AT 114, 115. 

WE MUST, THEN, DETERMINE WHETHER THE RETROACTIVE ACTION OF THE
COMMISSIONER WAS AN ABUSE OF DISCRETION IN THE CIRCUMSTANCES OF THIS
CASE.  THE ACTION WAS THE CONSEQUENCE OF THE RECONSIDERATION BY THE
COMMISSIONER, IN 1943, OF THE CORRECTNESS OF THE PRIOR RULINGS
EXEMPTING AUTOMOBILE CLUBS, INITIATED BY A GENERAL COUNSEL MEMORANDUM
INTERPRETING SEC. 101(9) TO BE INAPPLICABLE TO SUCH ORGANIZATIONS. 
(FN12)  THE COMMISSIONER ADOPTED THE GENERAL COUNSEL'S INTERPRETATION
AND PROCEEDED TO APPLY IT, EFFECTIVE FROM 1943, INDISCRIMINATELY TO
AUTOMOBILE CLUBS.  (FN13)  WE THUS FIND NO BASIS FOR DISAGREEING WITH
THE CONCLUSION, REACHED BY BOTH THE TAX COURT AND THE COURT OF APPEALS,
THAT THE COMMISSIONER, HAVING DEALT WITH PETITIONER UPON THE SAME BASIS
AS OTHER AUTOMOBILE CLUBS, DID NOT ABUSE HIS DISCRETION.  NOR DID THE
TWO-YEAR DELAY IN PROCEEDING WITH THE PETITIONER'S CASE, IN THESE
CIRCUMSTANCES, VITIATE THE COMMISSIONER'S ACTION. 

THE PETITIONER'S CONTENTION THAT THE STATUTE OF LIMITATIONS BARRED
THE ASSESSMENT OF DEFICIENCIES FOR 1943 AND 1944 IS ALSO WITHOUT
MERIT.  ITS RETURNS FOR THOSE YEARS WERE NOT FILED UNTIL OCTOBER 22,
1945.  WITHIN THREE YEARS, ON AUGUST 25, 1948, THE PETITIONER AND THE
COMMISSIONER SIGNED CONSENTS EXTENDING THE PERIOD TO JUNE 30, 1949. 
THE PERIOD WAS LATER EXTENDED TO JUNE 20, 1950.  NOTICE OF DEFICIENCIES
WAS MAILED TO PETITIONER ON FEBRUARY 20, 1950.  THE ASSESSMENTS WERE
THEREFORE WITHIN TIME UNDER SECS. 275(A) AND 276(B) (FN14) UNLESS, AS
THE PETITIONER ASSERTS, THE STATUTE OF LIMITATIONS BEGAN TO RUN FROM
THE DATES WHEN, IF THERE WAS A DUTY TO FILE, THE STATUTE REQUIRED
FILING.  (FN15)  THE PETITIONER ARGUES THAT BECAUSE ITS OMISSION TO
FILE ON MARCH 15, 1944, AND MARCH 15, 1945, WAS INDUCED BY THE
COMMISSIONER'S 1934 AND 1938 RULINGS, IT IS ONLY EQUITABLE TO INTERPRET
THE STATUTE OF LIMITATIONS AS RUNNING FROM THOSE DATES IN THE
CIRCUMSTANCES OF THIS CASE.  BUT THE EXPRESS CONDITION PRESCRIBED BY
THE CONGRESS WAS THAT THE STATUTE WAS TO RUN AGAINST THE UNITED STATES
FROM THE DATE OF THE ACTUAL FILING OF THE RETURN, AND NO ACTION OF THE
COMMISSIONER CAN CHANGE OR MODIFY THE CONDITIONS UNDER WHICH THE UNITED
STATES CONSENTS TO THE RUNNING OF THE STATUTE OF LIMITATIONS AGAINST
IT.  IN LUCAS V. PILLIOD LUMBER CO., 281 U.S. 245, 249, THIS COURT
HELD: 

"UNDER THE ESTABLISHED GENERAL RULE A STATUTE OF LIMITATION RUNS
AGAINST THE UNITED STATES ONLY WHEN THEY ASSENT AND UPON THE CONDITIONS
PRESCRIBED.  HERE ASSENT THAT THE STATUTE MIGHT BEGIN TO RUN WAS
CONDITIONED UPON THE PRESENTATION OF A RETURN DULY SWORN TO.  NO
OFFICER HAD POWER TO SUBSTITUTE SOMETHING ELSE FOR THE THING SPECIFIED
...  ."  (FN16) 

IT IS ALSO ARGUED THAT THE FORM 990 RETURNS FILED BY THE PETITIONER
IN COMPLIANCE WITH SEC. 54(F) OF THE 1939 CODE, AS AMENDED, (FN17)
CONSTITUTED THE FILING OF RETURNS FOR THE PURPOSES OF SEC. 275(A).  BUT
THE FORM 990 RETURNS ARE MERELY INFORMATION RETURNS IN FURTHERANCE OF A
CONGRESSIONAL PROGRAM TO SECURE INFORMATION USEFUL IN A DETERMINATION
WHETHER LEGISLATION SHOULD BE ENACTED TO SUBJECT TO TAXATION CERTAIN
TAX-EXEMPT CORPORATIONS COMPETING WITH TAXABLE CORPORATIONS.  (FN18)
THOSE RETURNS LACK THE DATA NECESSARY FOR THE COMPUTATION AND
ASSESSMENT OF DEFICIENCIES AND ARE NOT THEREFORE TAX RETURNS WITHIN THE
CONTEMPLATION OF SEC. 275(A).  CF. COMMISSIONER V. LANE-WELLS CO., 321
U.S. 219. 

THE FINAL ISSUE ARGUED CONCERNS THE TREATMENT OF MEMBERSHIP DUES AND
ARISES BECAUSE SUCH DUES ARE PAID IN ADVANCE FOR ONE YEAR.  THE DUES
UPON COLLECTION ARE DEPOSITED IN A GENERAL BANK ACCOUNT AND ARE NOT
SEGREGATED FROM GENERAL FUNDS BUT ARE AVAILABLE AND ARE USED FOR
GENERAL CORPORATE PURPOSES.   FOR BOOKKEEPING PURPOSES, HOWEVER, THE
DUES UPON RECEIPT ARE CREDITED TO AN ACCOUNT CARRIED AS A LIABILITY
ACCOUNT AND DESIGNATED "UNEARNED MEMBERSHIP DUES."  DURING THE FIRST
MONTH OF MEMBERSHIP AND EACH OF THE FOLLOWING ELEVEN MONTHS ONE-TWELFTH
OF THE AMOUNT PAID IS CREDITED TO AN ACCOUNT DESIGNATED "MEMBERSHIP
INCOME."  THIS METHOD OF ACCOUNTING WAS FOLLOWED BY PETITIONER FROM
1934.  THE INCOME FROM SUCH DUES REPORTED BY PETITIONER IN EACH OF ITS
TAX RETURNS FOR 1943 THROUGH 1947 WAS THE AMOUNT CREDITED IN THE YEAR
TO THE "MEMBERSHIP INCOME" ACCOUNT.  THE COMMISSIONER DETERMINED THAT
THE PETITIONER RECEIVED THE PREPAID DUES UNDER A CLAIM OF RIGHT,
WITHOUT RESTRICTION AS TO THEIR DISPOSITION, AND THEREFORE THE ENTIRE
AMOUNT RECEIVED IN EACH YEAR SHOULD BE REPORTED AS INCOME.  THE
COMMISSIONER RELIES UPON NORTH AMERICAN OIL V. BURNET, 286 U.S. 417,
424, WHERE THIS COURT SAID:  "IF A TAXPAYER RECEIVES EARNINGS UNDER A
CLAIM OF RIGHT AND WITHOUT RESTRICTION AS TO ITS DISPOSITION,  ...  IT
HAS RECEIVED INCOME WHICH  ...  IT IS REQUIRED TO RETURN  ...  ." 

THE PETITIONER DOES NOT DENY THAT IT HAS THE UNRESTRICTED USE OF THE
DUES INCOME IN THE YEAR OF RECEIPT, BUT CONTENDS THAT ITS ACCRUAL
METHOD OF ACCOUNTING CLEARLY REFLECTS ITS INCOME, AND THAT THE
COMMISSIONER IS THEREFORE BOUND TO ACCEPT ITS METHOD OF REPORTING
MEMBERSHIP DUES.  WE DO NOT AGREE.  SECTION 41 OF THE INTERNAL REVENUE
CODE OF 1939 REQUIRED THAT "THE NET INCOME SHALL BE COMPUTED  ...  IN
ACCORDANCE WITH THE METHOD OF ACCOUNTING REGULARLY EMPLOYED IN KEEPING
THE BOOKS ...  BUT  ...  IF THE METHOD EMPLOYED DOES NOT CLEARLY
REFLECT THE INCOME, THE COMPUTATION SHALL BE MADE IN ACCORDANCE WITH
SUCH METHOD AS IN THE OPINION OF THE COMMISSIONER DOES CLEARLY REFLECT
THE INCOME  ...  ."  (FN19)  THE PRO RATA ALLOCATION OF THE MEMBERSHIP
DUES IN MONTHLY AMOUNTS IS PURELY ARTIFICIAL AND BEARS NO RELATION TO
THE SERVICES WHICH PETITIONER MAY IN FACT BE CALLED UPON TO RENDER FOR
THE MEMBER.  (FN20)  SECTION 41 VESTS THE COMMISSIONER WITH DISCRETION
TO DETERMINE WHETHER THE PETITIONER'S METHOD OF ACCOUNTING CLEARLY
REFLECTS INCOME.  WE CANNOT SAY, IN THE CIRCUMSTANCES HERE, THAT THIS
DISCRETIONARY ACTION OF THE COMMISSIONER, SUSTAINED BY BOTH THE TAX
COURT AND THE COURT OF APPEALS, EXCEEDED PERMISSIBLE LIMITS.  SEE BROWN
V. HELVERING, 291 U.S. 193, 204-205.  AFFIRMED. 

FN1  20 T.C. 1033. 

FN2  230 F.2D 585. 

FN3  352 U.S. 817. 

FN4  SECTION 101(9) PROVIDED AS FOLLOWS: 

"THE FOLLOWING ORGANIZATIONS SHALL BE EXEMPT FROM TAXATION UNDER THIS
CHAPTER: 

     *         *         *       *         * 

"(9)  CLUBS ORGANIZED AND OPERATED EXCLUSIVELY FOR PLEASURE,
RECREATION, AND OTHER NONPROFITABLE PURPOSES, NO PART OF THE NET
EARNINGS OF WHICH INURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER  ...
."  53 STAT. 33, 26 U.S.C. (1934 ED., SUPP. V) SEC. 101(9). 

THE EARLIER STATUTE SECTIONS WERE IDENTICAL TO THE 1939 SECTION.  52
STAT. 480 (1938); 49 STAT. 1673 (1936); 48 STAT. 700 (1934); 47 STAT.
193 (1932). 

FN5  THE LETTER OF REVOCATION STATED THAT IN ORDER TO QUALIFY AS A
CLUB UNDER SEC. 101(9), THE " ...  ORGANIZATION SHOULD BE SO COMPOSED
AND ITS ACTIVITIES BE SUCH THAT FELLOWSHIP AMONG THE MEMBERS PLAYS A
MATERIAL PART IN THE LIFE OF THE ORGANIZATION ...  ."  IT WAS THEN
STATED THAT THE PREVIOUS RULINGS WERE REVOKED BECAUSE "THE EVIDENCE
SUBMITTED SHOWS THAT FELLOWSHIP DOES NOT CONSTITUTE A MATERIAL PART OF
THE LIFE OF  ...  PETITIONER'S ORGANIZATION AND THAT  ...  PETITIONER'S
PRINCIPAL ACTIVITY IS THE RENDERING OF COMMERCIAL SERVICES TO  ...  ITS
MEMBERS."    FN6  PETITIONER RENDERS VARIOUS SERVICES FOR ITS MEMBERS. 
AMONG THESE ARE EMERGENCY ROAD SERVICE WHEN A CAR IS DISABLED;
FURNISHING MAPS, ROAD AND OTHER TRAVEL INFORMATION; AND PUBLISHING A
MONTHLY MAGAZINE CONTAINING NEWS OF TRAVEL AND OF LAWS PERTAINING TO
THE USE OF AUTOMOBILES. 

FN7  KEYSTONE AUTO.  CLUB V. COMMISSIONER, 181 F.2D 402; SCHAFER V.
HELVERING, 65 APP. D.C.  292, 83 F.2D 317, AFF'D, 299 U.S. 171; JOHN M.
PARKER CO. V. COMMISSIONER, 49 F.2D 254; SOUTHERN MARYLAND AGRICULTURAL
FAIR ASSN. V. COMMISSIONER, 40 B.T.A. 549; YOKOHAMA KI-ITO KWAISHA,
LTD., 5 B.T.A. 1248; SEE ALSO, CHATTANOOGA AUTO.  CLUB V. COMMISSIONER,
182 F.2D 551 (BY IMPLICATION); WARREN AUTO.  CLUB V. COMMISSIONER, 182
F.2D 551 (BY IMPLICATION); SMYTH V. CALIFORNIA STATE AUTO.  ASSN., 175
F.2D 752 (BY IMPLICATION); AUTOMOBILE CLUB OF ST. PAUL V. COMMISSIONER,
12 T.C. 1152 (BY IMPLICATION). 

FN8  53 STAT. 467, 26 U.S.C. SEC. 3791(B). 

FN9  H.R. REP. NO. 704, 73D CONG., 2D SESS. 38; S. REP. NO. 558, 73D
CONG., 2D SESS. 48. 

FN10  TREAS. REG. 86, ART. 101-1 (1934); TREAS. REG. 94, ART. 101-1
(1936); TREAS. REG.  103, SEC. 19.101-1 (1939). 

FN11  20 T.C., AT 1041. 

FN12  G.C.M. 23688, 1943 CUM. BULL.  283. 

FN13  SEE, E.G., CHATTANOOGA AUTO.  CLUB V. COMMISSIONER, 182 F.2D
551; WARREN AUTO.  CLUB V. COMMISSIONER, 182 F.2D 551; KEYSTONE AUTO. 
CLUB V. COMMISSIONER, 181 F.2D 402; SMYTH V. CALIFORNIA STATE AUTO. 
ASSN., 175 F.2D 752; AUTOMOBILE CLUB OF ST. PAUL V. COMMISSIONER, 12
T.C. 1152. 

FN14  SECTION 275(A) PROVIDES AS FOLLOWS: 

"EXCEPT AS PROVIDED IN SECTION 276: 

"(A)  GENERAL RULE.  - THE AMOUNT OF INCOME TAXES IMPOSED BY THIS
CHAPTER SHALL BE ASSESSED WITHIN THREE YEARS AFTER THE RETURN WAS
FILED, AND NO PROCEEDING IN COURT WITHOUT ASSESSMENT FOR THE COLLECTION
OF SUCH TAXES SHALL BE BEGUN AFTER THE EXPIRATION OF SUCH PERIOD."  53
STAT. 86, 26 U.S.C. SEC. 275(A). 


"(B)  WAIVER.  - WHERE BEFORE THE EXPIRATION OF THE TIME PRESCRIBED
IN SECTION 275 FOR THE ASSESSMENT OF THE TAX, BOTH THE COMMISSIONER AND
THE TAXPAYER HAVE CONSENTED IN WRITING TO ITS ASSESSMENT AFTER SUCH
TIME, THE TAX MAY BE ASSESSED AT ANY TIME PRIOR TO THE EXPIRATION OF
THE PERIOD AGREED UPON.  THE PERIOD SO AGREED UPON MAY BE EXTENDED BY
SUBSEQUENT AGREEMENTS IN WRITING MADE BEFORE THE EXPIRATION OF THE
PERIOD PREVIOUSLY AGREED UPON."  53 STAT. 87, 26 U.S.C. SEC. 276(B). 

FN15  THE 1943 TAX RETURN WAS DUE ON MARCH 15, 1944.  THE 1944 TAX
RETURN WAS DUE ON MARCH 15, 1945. 

FN16  TO THE EXTENT THAT THE DECISION IN BALKAN NAT. INS. CO. V.
COMMISSIONER, 101 F.2D 75, IS TO THE CONTRARY, IT IS DISAPPROVED. 

FN17  53 STAT. 28, AS AMENDED, 58 STAT. 36, 26 U.S.C. SEC. 54(F). 

FN18  H.R. REP. NO. 871, 78TH CONG., 1ST SESS. 24-25; S. REP. NO.
627, 78TH CONG., 1ST SESS. 21. 

FN19  53 STAT. 24, 26 U.S.C. SEC. 41. 

FN20  BEACON PUBLISHING CO. V. COMMISSIONER, 218 F.2D 697, AND
SCHUESSLER V. COMMISSIONER, 230 F.2D 722, ARE DISTINGUISHABLE ON THEIR
FACTS.  IN BEACON, PERFORMANCE OF THE SUBSCRIPTION, IN MOST INSTANCES,
WAS, IN PART, NECESSARILY DEFERRED UNTIL THE PUBLICATION DATES AFTER
THE TAX YEAR.  IN SCHUESSLER, PERFORMANCE OF THE SERVICE AGREEMENT
REQUIRED THE TAXPAYER TO FURNISH SERVICES AT SPECIFIED TIMES IN YEARS
SUBSEQUENT TO THE TAX YEAR.  IN THIS CASE, SUBSTANTIALLY ALL SERVICES
ARE PERFORMED ONLY UPON A MEMBER'S DEMAND AND THE TAXPAYER'S
PERFORMANCE WAS NOT RELATED TO FIXED DATES AFTER THE TAX YEAR.  WE
EXPRESS NO OPINION UPON THE CORRECTNESS OF THE DECISIONS IN BEACON OR
SCHUESSLER. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE CLARK JOINS, CONCURRING IN PART
AND DISSENTING IN PART. 

I JOIN IN THE COURT'S OPINION INSOFAR AS IT HOLDS (A) THAT THE
COMMISSIONER DID NOT ABUSE HIS DISCRETION UNDER SEC. 3791(B) OF THE
INTERNAL REVENUE CODE OF 1939 WHEN, IN 1946, HE REVOKED PREVIOUS
RULINGS EXEMPTING PETITIONER FROM FEDERAL INCOME TAXES AND DIRECTED
PETITIONER TO FILE RETURNS FOR 1943 AND 1944, AND (B) THAT ASSESSMENT
OF DEFICIENCIES FOR THOSE YEARS WAS NOT BARRED BY THE STATUTE OF
LIMITATIONS.  HOWEVER, FOR THE REASONS STATED BY MR. JUSTICE HARLAN, I
DISSENT FROM THE COURT'S HOLDING THAT THE COMMISSIONER ACTED WITHIN HIS
DISCRETION UNDER SEC. 41 OF THE INTERNAL REVENUE CODE OF 1939 WHEN HE
DETERMINED, IN RELIANCE UPON THE "CLAIM OF RIGHT" DOCTRINE, THAT
PETITIONER'S METHOD OF ACCOUNTING FOR PREPAID MEMBERSHIP DUES DID NOT
CLEARLY REFLECT ITS INCOME. 

MR. JUSTICE HARLAN, DISSENTING. 

I THINK COLLECTION OF THE 1943 AND 1944 TAXES, BASED ON THE
COMMISSIONER'S RETROACTIVE REVOCATION OF HIS 1934 AND 1938 EXEMPTION
RULINGS, WAS BARRED BY THE THREE-YEAR STATUTE OF LIMITATIONS.  (FN1) I
WOULD HOLD THAT THE LIMITATIONS PERIOD BEGAN TO RUN WHEN THE TAXPAYER,
RELYING ON THE EXEMPTION RULING, DULY FILED ITS FORM 990 RETURNS (FN2)
FOR THE YEARS 1943 AND 1944.  I SEE NO REASON WHY WE SHOULD STRAIN TO
CONSTRUE "RETURN" IN SEC. 275(A) AS EXCLUDING AN INFORMATION RETURN
WHEN SUCH A RETURN WAS THE ONLY ONE REQUIRED OF THIS TAXPAYER, EXEMPT
FROM TAXATION AT THE TIME, AND ESPECIALLY WHEN THAT CONSTRUCTION
PRODUCES THE INEQUITABLE CONSEQUENCES WHICH HAVE RESULTED HERE. 
(FN3) WHICH PROVIDES THAT AN ASSESSMENT MAY BE MADE WITHOUT REGARD TO
THE STATUTE OF LIMITATIONS IN "THE CASE OF A FALSE OR FRAUDULENT RETURN
WITH INTENT TO EVADE TAX OR OF A FAILURE TO FILE A RETURN  ...  ."  IN
MY JUDGMENT, A TAXPAYER WHO FILES A RETURN ON ONE FORM RATHER THAN
ANOTHER BECAUSE THE COMMISSIONER DIRECTS HIM TO DO SO CANNOT BE CHARGED
WITH THE "FAILURE" CONTEMPLATED BY THE STATUTE.  SEE STOCKSTROM V.
COMMISSIONER, 88 U.S. APP. D.C. 286, 190 F.2D 283; BALKAN NAT. INS. CO.
V. COMMISSIONER, 101 F.2D 75.  COMMISSIONER V. LANE-WELLS CO., 321 U.S.
219, CITED BY THE COURT, IS INAPPOSITE BECAUSE THE TAXPAYER THERE WAS
REQUIRED BY APPLICABLE STATUTES AND REGULATIONS TO FILE TWO RETURNS AND
HAD FILED ONLY ONE.  COMPARE GERMANTOWN TRUST CO. V. COMMISSIONER, 309
U.S. 304.  UNDER THE DECISION OF THE COURT, THE COMMISSIONER MAY REVOKE
HIS RULINGS RETROACTIVELY SO LONG AS HIS ACTION DOES NOT CONSTITUTE AN
"ABUSE OF DISCRETION."  I SEE NO REASON WHY THAT POWER SHOULD NOT ALSO
BE SUBJECTED TO THE THREE-YEAR LIMIT ESTABLISHED BY CONGRESS. 

I ALSO DISAGREE WITH THE COURT'S HOLDING THAT THE COMMISSIONER MAY
PROPERLY TAX IN THE YEAR OF RECEIPT THE FULL AMOUNT OF PETITIONER'S
PREPAID MEMBERSHIP DUES.  THE COMMISSIONER SEEKS TO JUSTIFY THAT COURSE
UNDER THE "CLAIM OF RIGHT" DOCTRINE ANNOUNCED IN NORTH AMERICAN OIL V.
BURNET, 286 U.S. 417.  HOWEVER, THAT DOCTRINE, IT SEEMS TO ME, COMES
INTO PLAY ONLY IN DETERMINING WHETHER THE TREATMENT OF AN ITEM OF
INCOME SHOULD BE INFLUENCED BY THE FACT THAT THE RIGHT TO RECEIVE OR
KEEP IT IS IN DISPUTE; IT DOES NOT RELATE TO THE ENTIRELY DIFFERENT
QUESTION WHETHER ITEMS THAT ADMITTEDLY BELONG TO THE TAXPAYER MAY BE
ATTRIBUTED TO A TAXABLE YEAR OTHER THAN THAT OF RECEIPT IN ACCORDANCE
WITH PRINCIPLES OF ACCRUAL ACCOUNTING.  SEE BROWN V. HELVERING, 291
U.S. 193, WHERE THESE TWO PROBLEMS WERE INVOLVED AND WERE TREATED AS
DISTINCT.  THE COLLECTION OF TAXES CLEARLY SHOULD NOT BE MADE TO DEPEND
ON THE VICISSITUDES OF LITIGATION WITH THIRD PARTIES IN WHICH THE
TAXPAYER MAY BE ENGAGED.  THAT IS QUITE A DIFFERENT THING, HOWEVER,
FROM HOLDING THAT THE COMMISSIONER MAY FORCE TAXPAYERS TO ABANDON
REASONABLE AND ACCURATE METHODS OF ACCOUNTING SIMPLY BECAUSE THEY DO
NOT REFLECT ADVANCE RECEIPTS AS INCOME IN THE YEAR RECEIVED.  UNDER
SEC. 41 OF THE INTERNAL REVENUE CODE OF 1939, (FN4) THE INCOME OF THE
TAXPAYER IS TO BE DETERMINED "IN ACCORDANCE WITH THE METHOD OF
ACCOUNTING REGULARLY EMPLOYED IN KEEPING THE TAXPAYER'S BOOKS," UNLESS
"THE METHOD EMPLOYED DOES NOT CLEARLY REFLECT" THE TAXPAYER'S INCOME. 
UNDER SEC. 42, (FN5) ITEMS OF GROSS INCOME NEED NOT BE REPORTED IN THE
TAXABLE YEAR IN WHICH RECEIVED BY THE TAXPAYER IF, "UNDER METHODS OF
ACCOUNTING PERMITTED UNDER SECTION 41, ANY SUCH AMOUNTS ARE TO BE
PROPERLY ACCOUNTED FOR AS OF A DIFFERENT PERIOD."  AND IT IS CLEAR THAT
ACCRUAL METHODS OF ACCOUNTING MAY BE EMPLOYED.  UNITED STATES V.
ANDERSON, 269 U.S. 422.  THE COMMISSIONER'S OWN REGULATIONS AUTHORIZE
THE DEFERRAL OF INCOME IN SOME INSTANCES.  (FN6) 

THE COURT, HOWEVER, NOW BY-PASSES THE COMMISSIONER'S "CLAIM OF RIGHT"
ARGUMENT, AND RESTS ITS DECISION INSTEAD ON THE GROUND THAT THE "PRO
RATA ALLOCATION OF THE MEMBERSHIP DUES IN MONTHLY AMOUNTS IS PURELY
ARTIFICIAL AND BEARS NO RELATION TO THE SERVICES WHICH PETITIONER MAY
IN FACT BE CALLED UPON TO RENDER FOR THE MEMBER," SO THAT IT CANNOT SAY
THAT IN DOING WHAT HE DID THE COMMISSIONER EXCEEDED THE LIMITS OF HIS
DISCRETION.  I DO NOT UNDERSTAND THIS, BECAUSE THE COMMISSIONER DOES
NOT DENY - AS, INDEED, HE COULD NOT - THAT THE METHOD OF ACCOUNTING
USED BY THE TAXPAYER REFLECTS ITS NET EARNINGS WITH CONSIDERABLY
GREATER ACCURACY THAN THE METHOD HE PROPOSES.  NOR DOES HE URGE THAT
THE TAXPAYER'S ACCOUNTING SYSTEM DEFERS INCOME IN A MANNER OR TO AN
EXTENT THAT WOULD MAKE THE GOVERNMENT UNREASONABLY DEPENDENT ON THE
CONTINUED SOLVENCY OF THE TAXPAYER'S BUSINESS.  AND NO OTHER
CIRCUMSTANCES HAVE BEEN SHOWN WHICH WOULD JUSTIFY APPLICATION OF THE
STATUTORY EXCEPTION. 

ON BOTH OF THESE GROUNDS I WOULD REVERSE THE JUDGMENT BELOW. 

FN1  53 STAT. 86, 26 U.S.C. SEC. 275(A). 

FN2  58 STAT. 36, 26 U.S.C. SEC. 54(F). 

FN3  53 STAT. 87, 26 U.S.C. SEC. 276(A). 

FN4  53 STAT. 24, 26 U.S.C. SEC. 41. 

FN5  53 STAT. 24, 26 U.S.C. SEC. 42. 

FN6  REGULATIONS 111, SECS. 29.22(A)-17(2)(A) (BOND PREMIUMS), 29.42
4 (LONG-TERM CONTRACTS).  SEE ALSO I.T. 3369, 1940-1 CUM. BULL.  46
(PREPAID SUBSCRIPTIONS TO PERIODICALS); I.T. 2080, III-2 CUM. BULL.  48
(1924)(ADVANCE RECEIPTS FROM SALES OF TICKETS FOR TOURIST CRUISES). 
..END :










UNITED STATES V. UNION PACIFIC RAILROAD CO. 353 U.S. 112 


NO. 97.  ARGUED JANUARY 23, 1957 - DECIDED APRIL 8, 1957 - 230 F.2D 690,
REVERSED. 


BY SEC. 2 OF THE ACT OF JULY 1, 1862, 12 STAT. 489, THE UNITED STATES
GRANTED TO A RAILROAD COMPANY "THE RIGHT OF WAY THROUGH THE PUBLIC
LANDS  ...  FOR THE CONSTRUCTION OF SAID RAILROAD AND TELEGRAPH LINE." 
BY SEC. 3 IT GRANTED TO THE RAILROAD COMPANY EVERY ALTERNATE SECTION OF
"PUBLIC LAND" ON EACH SIDE OF THE RAILROAD; AND PROVIDED THAT "ALL
MINERAL LANDS SHALL BE EXCEPTED FROM THE OPERATION OF THIS ACT."  HELD:
THE GRANT BY SEC. 2 OF THE "RIGHT OF WAY" THROUGH THE PUBLIC LANDS DID
NOT CONVEY TO THE RAILROAD COMPANY THE TITLE TO OIL AND GAS DEPOSITS
UNDERLYING THE RIGHT OF WAY, AND THE RAILROAD COMPANY MAY NOT REMOVE OR
DISPOSE OF SUCH DEPOSITS.  PP. 113-120. 

(A)  ON THE FACE OF THE ACT, IT WOULD SEEM THAT THE USE OF THE WORDS
"RIGHT OF WAY" DESCRIBES A LESSER INTEREST THAN THE GRANT OF "PUBLIC
LAND."  P. 114. 

(B)  THE RIGHT OF WAY WAS GRANTED "FOR THE CONSTRUCTION OF SAID
RAILROAD AND TELEGRAPH LINE," AND THAT PURPOSE IS NOT FULFILLED WHEN
THE RIGHT OF WAY IS USED FOR OTHER PURPOSES.  P. 114. 

(C)  WHATEVER RIGHTS MAY HAVE BEEN INCLUDED IN THE GRANT OF A "RIGHT
OF WAY," MINERAL RIGHTS WERE EXCEPTED BY REASON OF THE PROVISO IN SEC.
3 EXCEPTING "MINERAL LANDS," WHICH EXTENDS TO THE ENTIRE ACT.  PP. 114
115. 

(D)  THE RESERVATION OF THE MINERAL RESOURCES OF THESE PUBLIC LANDS
FOR THE UNITED STATES WAS IN KEEPING WITH THE POLICY OF THE TIMES.  PP.
115-116. 

(E)  TO HOLD THAT, WHEN CONGRESS GRANTED ONLY A "RIGHT OF WAY" AND
RESERVED "ALL MINERAL LANDS," IT NONETHELESS ENDOWED THE RAILROAD
COMPANY WITH UNTOLD RICHES UNDERLYING THE RAILROAD, WOULD RUN COUNTER
TO THE ESTABLISHED RULES THAT LAND GRANTS ARE CONSTRUED FAVORABLY TO
THE GOVERNMENT, THAT NOTHING PASSES EXCEPT WHAT IS CONVEYED IN CLEAR
LANGUAGE, AND THAT ANY DOUBTS ARE RESOLVED IN FAVOR OF THE GOVERNMENT,
NOT AGAINST IT.  P. 116. 

(F)  THAT THE ADMINISTRATIVE SYSTEM BY WHICH THE EXCEPTION OF
"MINERAL LANDS" WAS ADMINISTERED IN RELATION TO THE LANDS GRANTED BY
SEC. 3 IS INAPPROPRIATE TO THE RIGHT OF WAY GRANTED BY SEC. 2 DOES NOT
MAKE THE EXCEPTION OF "MINERAL LANDS" IN SEC. 3 INAPPLICABLE TO THE
RIGHT OF WAY GRANTED BY SEC. 2.  PP. 116-118. 

(G)  NORTHERN PACIFIC R. CO. V. TOWNSEND, 190 U.S. 267; CLAIRMONT V.
UNITED STATES, 225 U.S. 551; AND GREAT NORTHERN R. CO. V. UNITED
STATES, 315 U.S. 262, DISTINGUISHED.  PP. 118-119. 

UNITED STATES V. UNION PACIFIC RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BROUGHT IN THE DISTRICT COURT BY THE UNITED STATES
TO ENJOIN THE UNION PACIFIC RAILROAD COMPANY FROM DRILLING FOR OIL AND
GAS ON "THE RIGHT OF WAY" GRANTED IT BY SEC. 2 OF THE ACT OF JULY 1,
1862, 12 STAT. 489, 491, FOR THE CONSTRUCTION OF A RAILROAD AND
TELEGRAPH LINE.  THE CLAIM OF THE UNITED STATES IS THAT "THE RIGHT OF
WAY" GRANTED BY THE ACT IS NOT A GRANT THAT INCLUDES MINERAL RIGHTS. 
THE DISTRICT COURT'S DECISION WAS ADVERSE TO THE UNITED STATES.  126 F.
SUPP. 646.  THE COURT OF APPEALS AFFIRMED.  230 F.2D 690.  THE CASE IS
HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED IN VIEW OF
THE PUBLIC IMPORTANCE OF THE QUESTION PRESENTED.  352 U.S. 818. 

THE 'RIGHT OF WAY" WHICH WAS GRANTED BY SEC. 2 OF THE ACT WAS "FOR
THE CONSTRUCTION OF SAID RAILROAD AND TELEGRAPH LINE."  AS AN AID TO
THE CONSTRUCTION OF THE RAILROAD, "EVERY ALTERNATE SECTION OF PUBLIC
LAND" ON EACH SIDE OF THE ROAD WAS ALSO GRANTED.  SEC. 3.  SECTION 3
FURTHER PROVIDED "THAT ALL MINERAL LANDS SHALL BE EXCEPTED FROM THE
OPERATION OF THIS ACT  ...  ." 

ON THE FACE OF THE ACT IT WOULD SEEM THAT THE USE OF THE WORDS "THE
RIGHT OF WAY" DESCRIBES A LESSER INTEREST THAN THE GRANT OF "PUBLIC
LAND."  MOREOVER, THIS RIGHT OF WAY WAS GRANTED UNION PACIFIC "FOR THE
CONSTRUCTION OF SAID RAILROAD AND TELEGRAPH LINE."  SEC. 2.  THAT
PURPOSE IS NOT FULFILLED WHEN THE RIGHT OF WAY IS USED FOR OTHER
PURPOSES.  SEE NORTHERN PACIFIC R. CO. V. TOWNSEND, 190 U.S. 267, 271. 
IT WOULD SEEM THAT, WHATEVER MAY BE THE NATURE OF UNION PACIFIC'S
INTEREST IN THE RIGHT OF WAY, DRILLING FOR OIL ON OR UNDER IT IS NOT A
RAILROAD PURPOSE WITHIN THE MEANING OF SEC. 2 OF THE ACT.  (FN1) 

IT WOULD ALSO SEEM FROM THE WORDS OF THE ACT THAT, WHATEVER RIGHTS
MAY HAVE BEEN INCLUDED IN "THE RIGHT OF WAY," MINERAL RIGHTS WERE
EXCEPTED BY REASON OF THE PROVISO IN SEC. 3 EXCEPTING "MINERAL LANDS." 
THE EXCEPTION OF "MINERAL LANDS," AS APPLIED TO THE RIGHT OF WAY, MAY
HAVE BEEN AN INEPT WAY OF RESERVING MINERAL RIGHTS.  THE RIGHT OF WAY
CERTAINLY COULD NOT BE EXPECTED TO TAKE ALL THE DETOURS THAT MIGHT BE
NECESSARY WERE IT TO AVOID ALL LANDS CONTAINING MINERALS.  BUT THAT THE
PROVISO APPLIES TO SEC. 2 AS WELL AS TO SEC. 3 IS PLAIN.  WHILE THE
GRANT OF "THE RIGHT OF WAY" IS MADE BY SEC. 2 AND THE EXCEPTION OF
"MINERAL LANDS" IS CONTAINED IN SEC. 3, THE EXCEPTION EXTENDS NOT
MERELY TO SEC. 3 BUT TO THE ENTIRE ACT. 

IT IS SAID THAT THE EXCEPTION IN SEC. 3 WAS IN TERMS MADE APPLICABLE
TO THE ENTIRE ACT MERELY TO LEAVE NO DOUBT THAT LAND GRANTS TO OTHER
RAILROADS, CONTAINED IN SECS. 9, 13 AND 14 OF THE ACT, WERE NOT TO
INCLUDE "MINERAL LANDS."  BUT THE EXCEPTION IN SEC. 3 IS NOT LIMITED
MERELY TO A FEW ENUMERATED SECTIONS ANY MORE THAN IT IS LIMITED TO SEC.
3.  THE PROVISO MAKES SINSE IF IT IS READ TO RESERVE ALL MINERAL RIGHTS
UNDER THE RIGHT OF WAY, AS WELL AS TO RESERVE MINERAL LANDS IN THE
ALTERNATE SECTIONS OF PUBLIC LAND GRANTED IN AID OF THE CONSTRUCTION OF
THE ROAD.  INDEED, WE CAN SEE NO OTHER WAY TO CONSTRUE IT IF IT IS TO
APPLY, AS IT DOES, NOT MERELY TO SEC. 3, BUT TO THE ENTIRE ACT,
INCLUDING SEC. 2 WHICH GRANTS THE RIGHT OF WAY. 

THE RESERVATION OF THE MINERAL RESOURCES OF THESE PUBLIC LANDS FOR
THE UNITED STATES WAS IN KEEPING WITH THE POLICY OF THE TIMES.  THE
GOLD STRIKE IN CALIFORNIA IN 1848 MADE THE ENTIRE COUNTRY CONSCIOUS OF
THE POTENTIAL RICHES UNDERLYING THE WESTERN PART OF THE PUBLIC DOMAIN. 
THE METHOD OF ASSERTING FEDERAL CONTROL OVER MINERAL LANDS WAS NOT
FINALLY SETTLED UNTIL THE ACT OF JULY 26, 1866, 14 STAT. 251,
PRESCRIBED THE PROCEDURE BY WHICH MINERAL LANDS COULD BE ACQUIRED.  BUT
MEANWHILE - FROM 1849 TO 1866 - THE FEDERAL POLICY WAS CLEAR.  AS THE
COURT SAID IN MINING CO. V. CONSOLIDATED MINING CO., 102 U.S. 167, THE
FEDERAL POLICY DURING THIS INTERIM PERIOD WAS TO RESERVE MINERAL LANDS,
NOT TO GRANT THEM.  THE POLICY WAS FOUND TO BE SO "UNIFORM" IN THIS
INTERIM PERIOD (ID., AT 175) THAT THE COURT, IN CONSTRUING AN 1853 ACT
GOVERNING PUBLIC LANDS IN CALIFORNIA, HELD THAT A GRANT TO CALIFORNIA
DID NOT INCLUDE MINERAL LANDS, ALTHOUGH THEY WERE NOT SPECIFICALLY
EXCEPTED. 

THE CASE IS MUCH STRONGER HERE, FOR "MINERAL LANDS" ARE SPECIFICALLY
RESERVED.  IT IS, THEREFORE, WHOLLY IN KEEPING WITH THE FEDERAL POLICY
THAT PREVAILED IN 1862, WHEN THE PRESENT RIGHT OF WAY WAS GRANTED, TO
CONSTRUE "MINERAL LANDS" TO INCLUDE MINERAL RESOURCES UNDER THE RIGHT
OF WAY.  FOR IT WAS THE MINERAL RICHES IN THE PUBLIC DOMAIN THAT
CONGRESS SEDULOUSLY SOUGHT TO PRESERVE UNTIL IT FORMULATED THE SPECIAL
PROCEDURE BY WHICH ALL MINERAL RESOURCES WERE TO BE ADMINISTERED.  IN
UNITED STATES V. SWEET, 245 U.S. 563, MR. JUSTICE VAN DEVANTER, OUR
FOREMOST EXPERT ON PUBLIC LAND LAW, DISCUSSED THIS POLICY AT LENGTH AND
CITED IN SUPPORT OF THIS FEDERAL POLICY THE VERY ACT WE HAVE UNDER
CONSIDERATION IN THE PRESENT CASE.  ID., P. 569, N. 1.  AND SEE BARDEN
V. NORTHERN PACIFIC R. CO., 154 U.S. 288, 317-318.  WE WOULD HAVE TO
FORGET HISTORY AND READ LEGISLATION WITH A JAUNDICED EYE TO HOLD THAT
WHEN CONGRESS GRANTED ONLY A RIGHT OF WAY AND RESERVED ALL "MINERAL
LANDS" IT NONETHELESS ENDOWED THE RAILROAD WITH THE UNTOLD RICHES
UNDERLYING THE RIGHT OF WAY.  SUCH A CONSTRUCTION WOULD RUN COUNTER TO
THE ESTABLISHED RULE THAT LAND GRANTS ARE CONSTRUED FAVORABLY TO THE
GOVERNMENT, THAT NOTHING PASSES EXCEPT WHAT IS CONVEYED IN CLEAR
LANGUAGE, AND THAT IF THERE ARE DOUBTS THEY ARE RESOLVED FOR THE
GOVERNMENT, NOT AGAINST IT.  CALDWELL V. UNITED STATES, 250 U.S. 14, 20
21.  THESE ARE THE REASONS WE CONSTRUE "MINERAL LANDS" AS USED IN SEC.
3 OF THE ACT TO INCLUDE MINERAL RIGHTS IN THE RIGHT OF WAY GRANTED BY
SEC. 2. 

THE SYSTEM WHICH CONGRESS SET UP TO EFFECTUATE ITS POLICY OF
RESERVING MINERAL RESOURCES IN THE ALTERNATE SECTIONS OF PUBLIC LAND
GRANTED BY SEC. 3 WAS BY WAY OF AN ADMINISTRATIVE DETERMINATION, PRIOR
TO ISSUANCE OF A PATENT, OF THE MINERAL OR NONMINERAL CHARACTER OF THE
LANDS.  PATENTS WERE NOT ISSUED TO LAND ADMINISTRATIVELY DETERMINED TO
CONSTITUTE MINERAL LANDS.  AND, THE ADMINISTRATIVE DETERMINATION WAS
FINAL.  BURKE V. SOUTHERN PACIFIC R. CO., 234 U.S. 669.  SUCH AN
ADMINISTRATIVE SYSTEM WAS OBVIOUSLY INAPPROPRIATE TO THE RIGHT OF WAY
GRANTED BY SEC. 2.  THE LAND NEEDED FOR THE RIGHT OF WAY WAS NOT
ACQUIRED THROUGH THE ISSUANCE OF A PATENT, BUT BY THE FILING OF A MAP
SHOWING THE DEFINITE LOCATION OF THE ROAD, FOLLOWED BY ITS ACTUAL
CONSTRUCTION.  NORTHERN PACIFIC R. CO. V. TOWNSEND, SUPRA, AT 270. 

A PROVISION FOR PRIOR ADMINISTRATIVE DETERMINATION OF WHICH LAND IN
THE PATH OF THE RIGHT OF WAY CONSTITUTED MINERAL LANDS WOULD HAVE BEEN
INAPPROPRIATE FOR ANOTHER REASON.  AS ALREADY NOTED, THE ROUTE OF THE
RAILROAD HAD TO BE DETERMINED BY ENGINEERING CONSIDERATIONS WHICH COULD
NOT ALLOW FOR THE EXTENSIVE DETOURS THAT THE AVOIDANCE OF LAND
CONTAINING MINERALS WOULD MAKE NECESSARY. 

BECAUSE THE ADMINISTRATIVE SYSTEM, BY WHICH THE EXCEPTION OF "MINERAL
LANDS" WAS ADMINISTERED IN RELATION TO THE LANDS GRANTED BY SEC. 3, IS
INAPPROPRIATE TO THE RIGHT OF WAY GRANTED BY SEC. 2, WE ARE URGED TO
CONCLUDE THAT THE EXCEPTION OF "MINERAL LANDS" IN SEC. 3 WAS NOT
INTENDED TO APPLY TO SEC. 2.  BUT, CONSTRUING THE GRANT IN SEC. 2
FAVORABLY TO THE GOVERNMENT, AS WE MUST, WE CANNOT CONCLUDE THAT
CONGRESS MEANT THE POLICY IT EXPRESSED, BY EXCEPTING "MINERAL LANDS" IN
SEC. 3, TO BE INAPPLICABLE TO SEC. 2 IN THE FACE OF ITS ADMONITION THAT
THE EXCEPTION IS APPLICABLE TO THE ENTIRE ACT.  NOR CAN WE CONCLUDE
THAT, BECAUSE THE ADMINISTRATIVE SYSTEM, BY WHICH MINERAL RESOURCES IN
THE GRANT OF LAND UNDER SEC. 3 WERE RESERVED, WAS INAPPROPRIATE TO SEC.
2, CONGRESS DID NOT INTEND APPROPRIATE MEASURES TO RESERVE MINERALS
UNDER THE RIGHT OF WAY GRANTED BY SEC. 2.  WE CANNOT ASSUME THAT THE
THIRTY-SEVENTH CONGRESS WAS PROFLIGATE IN THE FACE OF ITS EXPRESS
PURPOSE TO RESERVE MINERAL LANDS. 

TO BE SURE, CONGRESS LATER ON DESIGNED A MORE PRECISE AND ARTICULATED
SYSTEM FOR THE SEPARATION OF SUBSOIL RIGHTS FROM THE OTHER RIGHTS IN
THE WESTERN LANDS.  SEE, FOR EXAMPLE, THE ACT OF MARCH 3, 1909, 35
STAT. 844.  IT WOULD HAVE BEEN BETTER DRAFTSMANSHIP, IF, IN REFERRING
TO SEC. 2, CONGRESS HAD USED THE WORDS "MINERAL RIGHTS" INSTEAD OF
"MINERAL LANDS."  YET IT WILL NOT DO FOR US TO TELL THE CONGRESS "WE
SEE WHAT YOU WERE DRIVING AT BUT YOU DID NOT USE CHOICE WORDS TO
DESCRIBE YOUR PURPOSE." 

SOME RELIANCE IS PLACED ON A LINE OF DECISIONS OF THE COURT WHICH
DESCRIBE THE RIGHTS OF WAY UNDER EARLY RAILROAD LAND GRANTS AS LIMITED
FEES.  THESE CASES WERE, FOR THE MOST PART, CONTROVERSIES BETWEEN THE
RAILROAD AND THIRD PERSONS AND INVOLVED PROBLEMS SO REMOTE FROM THE
PRESENT ONE AS TO BE INAPT AS CITATIONS.  FOR EXAMPLE, THE LEADING CASE
RAISED THE QUESTION WHETHER THIRD PARTIES COULD ESTABLISH VALID
HOMESTEADS ON THE RAILROAD RIGHT OF WAY AFTER THE RIGHT OF WAY HAD BEEN
LOCATED AND THE TRACKS LAID.  NORTHERN PACIFIC R. CO. V. TOWNSEND,
SUPRA.  AN ANSWER IN FAVOR OF THE RAILROAD ON THE GROUND THAT IT HAD A
LIMITED FEE COULD HARDLY BE AN ADJUDICATION CONCERNING THE OWNERSHIP OF
MINERAL RESOURCES UNDERLYING THE RIGHT OF WAY IN A CONTEST BETWEEN THE
UNITED STATES AND THE RAILROAD.  IN ONLY ONE OF THE CASES CITED WAS THE
UNITED STATES A PARTY; AND IN THAT CASE THE QUESTION DID NOT INVOLVE
MINERAL RIGHTS BUT JURISDICTION OVER A PERSON TRANSPORTING LIQUOR.  IF
THE RIGHT OF WAY WAS INDIAN COUNTRY WHEN IT CROSSED AN INDIAN
RESERVATION, THEN A VIOLATION OF THE LIQUOR LAWS HAD OCCURRED.  THE
COURT HELD THAT THE RIGHT OF WAY WAS NOT INDIAN COUNTRY AND SAID IN
PASSING THAT THE RIGHT OF WAY CONSTITUTED THE FEE IN THE LAND. 
CLAIRMONT V. UNITED STATES, 225 U.S. 551, 556.  WE DO NOT STOP TO
EXAMINE THE OTHER CASES (FN2) USING LIKE LANGUAGE TO DESCRIBE THE
RAILROAD'S RIGHT OF WAY, BECAUSE IN NONE OF THEM WAS THERE A A CONTEST
BETWEEN THE UNITED STATES AND THE RAILROAD-GRANTEE OVER ANY MINERAL
RIGHTS UNDERLYING THE RIGHT OF WAY.  THE MOST THAT THE "LIMITED FEE"
CASES DECIDED WAS THAT THE RAILROADS RECEIVED ALL SURFACE RIGHTS TO THE
RIGHT OF WAY AND ALL RIGHTS INCIDENT TO A USE FOR RAILROAD PURPOSES. 

GREAT RELIANCE IS PLACED ON GREAT NORTHERN R. CO. V. UNITED STATES,
315 U.S. 262, FOR THE VIEW THAT THE GRANT OF A RIGHT OF WAY IN THE YEAR
1862 WAS THE GRANT OF A FEE INTEREST.  IN THAT CASE WE NOTED THAT A
GREAT SHIFT IN CONGRESSIONAL POLICY OCCURRED IN 1871:  THAT AFTER THAT
PERIOD ONLY AN EASEMENT FOR RAILROAD PURPOSES WAS GRANTED, WHILE PRIOR
THERETO A RIGHT OF WAY WITH ALTERNATE SECTIONS OF PUBLIC LAND ALONG THE
RIGHT OF WAY HAD BEEN GRANTED.  IN THE LATTER CONNECTION WE SAID, "WHEN
CONGRESS MADE OUTRIGHT GRANTS TO A RAILROAD OF ALTERNATE SECTIONS OF
PUBLIC LANDS ALONG THE RIGHT OF WAY, THERE IS LITTLE REASON TO SUPPOSE
THAT IT INTENDED TO GIVE ONLY AN EASEMENT IN THE RIGHT OF WAY GRANTED
IN THE SAME ACT."  ID., AT 278.  BUT WE HAD NO OCCASION TO CONSIDER IN
THE GREAT NORTHERN CASE THE GRANT OF A RIGHT OF WAY WITH THE
RESERVATION OF "MINERAL LANDS."  THE SUGGESTION THAT A RIGHT OF WAY MAY
AT TIMES BE MORE THAN AN EASEMENT WAS MADE IN AN EFFORT TO DISTINGUISH
THE EARLIER "LIMITED FEE" CASES.  TO COMPLETE THE DISTINCTION, MR.
JUSTICE MURPHY WITH HIS USUAL DISCERNMENT ADDED, "NONE OF THESE CASES
INVOLVED THE PROBLEM OF RIGHTS TO SUBSURFACE OIL AND MINERALS."  ID.,
AT 278. 

THE LATTER STATEMENT GOES TO THE HEART OF THE MATTER.  THERE ARE NO
PRECEDENTS WHICH GIVE THE MINERAL RIGHTS TO THE OWNER OF THE RIGHT OF
WAY AS AGAINST THE UNITED STATES.  WE WOULD MAKE A VIOLENT BREAK WITH
HISTORY IF WE CONSTRUED THE ACT OF 1862 TO GIVE SUCH A BOUNTY.  WE
WOULD, INDEED, VIOLATE THE LANGUAGE OF THE ACT ITSELF.  TO REPEAT, WE
CANNOT READ "MINERAL LANDS" IN SEC. 3 AS INAPPLICABLE TO THE RIGHT OF
WAY GRANTED BY SEC. 2 AND STILL BE FAITHFUL TO THE STANDARD WHICH
GOVERNS THE CONSTRUCTION OF A STATUTE THAT GRANTS A PART OF THE PUBLIC
DOMAIN TO PRIVATE INTERESTS.  REVERSED. 

FN1  TO THAT EFFECT ARE ADMINISTRATIVE DECISIONS, BY OFFICERS OF THE
INTERIOR DEPARTMENT DEALING WITH COMPARABLE STATUTES, THAT A
CONGRESSIONAL GRANT OF LAND "FOR RAILROAD PURPOSES" DOES NOT CARRY THE
RIGHT TO DRILL FOR OIL OR TO REMOVE SOLID MINERALS.  MISSOURI, KANSAS &
TEXAS R. CO., 33 L.D. 470 (ACT OF JULY 26, 1866, 14 STAT. 289);
MISSOURI, KANSAS & TEXAS R. CO., 34 L.D. 504 (ACT OF FEBRUARY 28, 1902,
32 STAT. 43); USE OF RAILROAD RIGHT OF WAY FOR EXTRACTING OIL, 56 I.D.
206 (ACT OF MARCH 3, 1875, 18 STAT. 482); NORTHERN PACIFIC R. CO., 58
I.D. 160 (ACT OF JULY 2, 1864, 13 STAT. 365). 

FN2  RAILROAD CO. V. BALDWIN, 103 U.S. 426 (A CONTEST BETWEEN THE
OWNER OF THE RIGHT OF WAY AND A SETTLER WHO TOOK POSSESSION BEFORE THE
LINE WAS DEFINITELY LOCATED); MISSOURI, K. & T.R. CO. V. ROBERTS, 152
U.S. 114 (A CONTEST BETWEEN THE OWNER OF THE RIGHT OF WAY AND ONE WHO
CLAIMED THE LAND UNDER A GRANT FROM THE STATE); NEW MEXICO V. UNITED
STATES TRUST CO., 172 U.S. 171 (AN EFFORT BY THE STATE TO TAX THE RIGHT
OF WAY AND STRUCTURES ON IT IN FACE OF AN EXEMPTION GRANTED BY
CONGRESS); UNION PAC. R. CO. V. LARAMIE STOCK YARDS CO., 231 U.S. 190
(WHETHER THE GRANT OF THE RIGHT OF WAY WAS QUALIFIED BY A LATER ACT OF
CONGRESS); RIO GRANDE W.R. CO. V. STRINGHAM, 239 U.S. 44 (A CONTEST
BETWEEN THE OWNER OF THE RIGHT OF WAY AND THE OWNER OF A PLACER
PATENT); CHOCTAW, O. & G.R. CO. V. MACKEY, 256 U.S. 531 (AN EFFORT OF
THE OWNER OF THE RIGHT OF WAY TO GET AN EXEMPTION FROM LOCAL TAXATION
FOR A STREET IMPROVEMENT THAT ENHANCED THE VALUE OF THE RAILROAD USE);
MISSOURI, K. & T.R. CO. V. OKLAHOMA, 271 U.S. 303 (THE RIGHT OF THE
OWNER OF THE RIGHT OF WAY TO COMPENSATION FOR DAMAGE SUFFERED BY THE
CONSTRUCTION OF CROSSINGS).    MR. JUSTICE WHITTAKER TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THIS CASE.    MR. JUSTICE FRANKFURTER,
WHOM MR. JUSTICE BURTON AND MR. JUSTICE HARLAN JOIN, DISSENTING. 

THIS IS A SUIT BY THE UNITED STATES TO RESTRAIN RESPONDENT RAILROAD
COMPANY FROM REMOVING OIL AND GAS FROM THE LAND FORMING RESPONDENT'S
RIGHT OF WAY AND TO QUIET TITLE TO THOSE MINERAL DEPOSITS IN THE UNITED
STATES.  THE CONTROVERSY ARISES OUT OF THE ACT OF JULY 1, 1862, 12
STAT. 489, THE PURPOSE OF WHICH IS DESCRIBED BY ITS TITLE "AN ACT TO
AID IN THE CONSTRUCTION OF A RAILROAD AND TELEGRAPH LINE FROM THE
MISSOURI RIVER TO THE PACIFIC OCEAN, AND TO SECURE TO THE GOVERNMENT
THE USE OF THE SAME FOR POSTAL, MILITARY, AND OTHER PURPOSES."  THE
GOVERNMENT CLAIMED THAT SEC. 2 OF THAT ACT, IN GRANTING RESPONDENT'S
PREDECESSOR IN TITLE "THE RIGHT OF WAY THROUGH THE PUBLIC LANDS" FOR
THE CONSTRUCTION OF A RAILROAD, DID NOT VEST THE RAILROAD WITH ANY
INTEREST IN THE UNDERLYING MINERALS.  THE DISTRICT COURT FOR THE
DISTRICT OF WYOMING GRANTED JUDGMENT FOR RESPONDENT.  IT HELD THAT THE
ACT OF 1862 "GRANTED TO UNION PACIFIC A FEE SIMPLE DETERMINABLE,
SOMETIMES CALLED A BASE, QUALIFIED OR LIMITED FEE, OF THE LANDS
CONTAINED WITHIN THE RIGHT OF WAY, SUBJECT ONLY TO AN IMPLIED CONDITION
OF REVERTER IN THE EVENT THAT UNION PACIFIC CEASES TO USE THE RIGHT OF
WAY," AND THAT THIS GAVE UNION PACIFIC SOLE RIGHT TO THE UNDERLYING
MINERALS, WHICH HAD NOT BEEN RESERVED BY THE UNITED STATES.  126 F.
SUPP. 646.  THE COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED THIS
JUDGMENT.  230 F.2D 690. 


"AND BE IT FURTHER ENACTED, THAT THE RIGHT OF WAY THROUGH THE PUBLIC
LANDS BE, AND THE SAME IS HEREBY, GRANTED TO SAID COMPANY FOR THE
CONSTRUCTION OF SAID RAILROAD AND TELEGRAPH LINE; AND THE RIGHT, POWER,
AND AUTHORITY IS HEREBY GIVEN TO SAID COMPANY TO TAKE FROM THE PUBLIC
LANDS ADJACENT TO THE LINE OF SAID ROAD, EARTH, STONE, TIMBER, AND
OTHER MATERIALS FOR THE CONSTRUCTION THEREOF; SAID RIGHT OF WAY IS
GRANTED TO SAID RAILROAD TO THE EXTENT OF TWO HUNDRED FEET IN WIDTH ON
EACH SIDE OF SAID RAILROAD WHERE IT MAY PASS OVER THE PUBLIC LANDS,
INCLUDING ALL NECESSARY GROUNDS FOR STATIONS, BUILDINGS, WORKSHOPS, AND
DEPOTS, MACHINE SHOPS, SWITCHES, SIDE TRACKS, TURNTABLES, AND WATER
STATIONS.  THE UNITED STATES SHALL EXTINGUISH AS RAPIDLY AS MAY BE THE
INDIAN TITLES TO ALL LANDS FALLING UNDER THE OPERATION OF THIS ACT AND
REQUIRED FOR THE SAID RIGHT OF WAY AND GRANTS HEREINAFTER MADE." 

AS ADDITIONAL AID TOWARD CONSTRUCTION OF THE LINE, SEC. 3 GRANTED THE
RAILROAD FIVE ALTERNATE SECTIONS OF PUBLIC LAND PER MILE ON EACH SIDE
OF THE ROAD, WITH THE QUALIFICATION THAT "ALL MINERAL LANDS SHALL BE
EXCEPTED FROM THE OPERATION OF THIS ACT."  AND SECS. 5 AND 11 PROVIDED
FOR THE ISSUANCE TO THE COMPANY, UPON ITS COMPLETION OF A PRESCRIBED
NUMBER OF MILES OF TRACK, OF UNITED STATES BONDS OF AN AGGREGATE VALUE
OF NOT LESS THAN $16,000 NOR MORE THAN $48,000 PER MILE, DEPENDING ON
THE DIFFICULTY OF THE TERRAIN.  TWO YEARS LATER, CONGRESS AMENDED THE
ACT TO DOUBLE THE NUMBER OF ALTERNATE SECTIONS OF LAND GRANTED IN AID
OF CONSTRUCTION, 13 STAT. 356. 

THIS ACT OF 1862 WAS ONE OF A SERIES OF STATUTES PROVIDING ASSISTANCE
TO INDIVIDUALLY NAMED RAILROADS TO PROMOTE THEIR CONSTRUCTION.  THE ACT
OF JULY 2, 1864, 13 STAT. 365, GAVE AN EVEN GREATER AMOUNT OF LAND TO
THE NORTHERN PACIFIC RAILROAD COMPANY, AND IN 1866 OTHER ACTS WERE
PASSED FOR THE BENEFIT OF THE ST. JOSEPH AND DENVER CITY RAILROAD
COMPANY, 14 STAT.  210; THE KANSAS AND NEOSHO VALLEY RAILROAD COMPANY,
14 STAT. 236; THE CALIFORNIA AND OREGON RAILROAD COMPANY, 14 STAT. 239;
THE SOUTHERN BRANCH OF THE UNION PACIFIC COMPANY, 14 STAT. 289; AND THE
ATLANTIC AND PACIFIC RAILROAD COMPANY, 14 STAT. 292.  EACH OF THESE
STATUTES CONTAINED A GRANT SUBSTANTIALLY IDENTICAL WITH THAT MADE BY
SEC. 2 OF THE ACT OF 1862, THE OBJECT OF OUR IMMEDIATE CONCERN. 

SPECIFIC STATUTE DESIGNED TO ACHIEVE A SPECIFIC, CONTEMPORANEOUS GOAL -
CONSTRUCTION OF A RAILROAD.  UNLIKE CONSTITUTIONAL PROVISIONS SUCH AS
THE DUE PROCESS CLAUSE OR ENACTMENTS SUCH AS THE SHERMAN LAW THAT
EMBODY A FELT RATHER THAN DEFINED PURPOSE AND NECESSARILY LOOK TO THE
FUTURE FOR THE UNFOLDING OF THEIR CONTENT, MAKING OF THEIR JUDICIAL
APPLICATION AN EVOLUTIONARY PROCESS NOURISHED BY RELEVANT CHANGING
CIRCUMSTANCES, A SPECIFIC GRANT LIKE SEC. 2 DOES NOT GAIN MEANING FROM
TIME.  ITS SCOPE TODAY IS WHAT IT WAS IN 1862, AND THE JUDICIAL TASK IS
TO ASCERTAIN WHAT CONTENT WAS CONVEYED BY THAT SECTION IN 1862.  DID
THE THIRTY-SEVENTH CONGRESS GRANT THE ENTIRE PRESENT INTEREST, THE FEE,
IN THE LAND FORMING THE RIGHT OF WAY, OR DID IT CONVEY MERELY A RIGHT
OF PASSAGE, AN EASEMENT, RETAINING FOR THE UNITED STATES ALL OTHER
RIGHTS IN THE LAND, INCLUDING THE RIGHT TO ITS MINERALS? 

IN A LINE OF DECISIONS GOING BACK TO RAILROAD CO. V. BALDWIN, 103
U.S. 426, THIS COURT HAS CONSISTENTLY RECOGNIZED THAT THE ACT OF 1862
AND ITS COMPANION ACTS GAVE TO THE RAILROADS THE ENTIRE PRESENT
INTEREST IN THE PUBLIC LANDS ALLOCATED TO THEM FOR A RIGHT OF WAY.  IN
THE BALDWIN CASE, THE COURT DEALT WITH THE GRANT OF THE RIGHT OF WAY TO
THE ST. JOSEPH & DENVER RAILROAD UNDER ONE OF THE 1866 STATUTES, 14
STAT. 210.  IT STATED THAT: 

"  ...  THE GRANT OF THE RIGHT OF WAY  ...  CONTAINS NO RESERVATIONS
OR EXCEPTIONS.  IT IS A PRESENT ABSOLUTE GRANT, SUBJECT TO NO
CONDITIONS EXCEPT THOSE NECESSARILY IMPLIED, SUCH AS THAT THE ROAD
SHALL BE CONSTRUCTED AND USED FOR THE PURPOSES DESIGNED.  NOR IS THERE
ANYTHING IN THE POLICY OF THE GOVERNMENT WITH RESPECT TO THE PUBLIC
LANDS WHICH WOULD CALL FOR ANY QUALIFICATION OF THE TERMS."  ID., AT
429-430. 

A SIMILAR GRANT OF THE RIGHT OF WAY, IN AN 1866 GRANT TO THE SOUTHERN
BRANCH OF THE UNION PACIFIC COMPANY, 14 STAT. 289, WAS REPEATEDLY
CHARACTERIZED IN MISSOURI, K. & T.R. CO. V. ROBERTS, 152 U.S. 114, AS
BEING "ABSOLUTE IN TERMS, COVERING BOTH THE FEE AND POSSESSION."  ID.,
AT 117.  IN NEW MEXICO V. UNITED STATES TRUST CO., 172 U.S. 171, 181
182, THE COURT ACKNOWLEDGED THAT THE TERM "RIGHT OF WAY" HAD TWO
DISTINCT MEANINGS:  (1) A "MERE RIGHT OF PASSAGE"; AND (2) "'THAT STRIP
OF LAND WHICH RAILROAD COMPANIES TAKE UPON WHICH TO CONSTRUCT THEIR
ROADBED.'  THAT IS, THE LAND ITSELF - NOT A RIGHT OF PASSAGE OVER IT." 
THE COURT HELD THAT THE RIGHT OF WAY GRANTED TO THE ATLANTIC & PACIFIC
RAILROAD BY ANOTHER OF THE 1866 ACTS, 14 STAT. 292, WAS OF THE LATTER
CLASS, RELYING ON THE ROBERTS CASE. 

NORTHERN PACIFIC R. CO. V. TOWNSEND, 190 U.S. 267, MADE EVEN MORE
PLAIN THE COURT'S VIEW THAT WHEN CONGRESS IN THE 1860'S GRANTED A
RAILROAD RIGHT OF WAY IT CONVEYED THE ENTIRE PRESENT INTEREST IN THE
STRIP OF LAND.  THIS WAS A SUIT BY THE RAILROAD AGAINST ONE WHOSE
PREDECESSORS IN TITLE HAD, AFTER THE ROAD WAS CONSTRUCTED, BEGUN
ADVERSE POSSESSION OF PART OF THE RIGHT OF WAY AND HAD SUBSEQUENTLY
OBTAINED HOMESTEAD PATENTS TO THE SECTION OF LAND OVER WHICH THE ROAD
PASSED.  MR. JUSTICE WHITE BEGAN THE COURT'S OPINION BY STATING: 

"AT THE OUTSET, WE PREMISE THAT, AS THE GRANT OF THE RIGHT OF WAY,
THE FILING OF THE MAP OF DEFINITE LOCATION, AND THE CONSTRUCTION OF THE
RAILROAD WITHIN THE QUARTER SECTION IN QUESTION PRECEDED THE FILING OF
THE HOMESTEAD ENTRIES ON SUCH SECTION, THE LAND FORMING THE RIGHT OF
WAY THEREIN WAS TAKEN OUT OF THE CATEGORY OF PUBLIC LANDS SUBJECT TO
PREEMPTION AND SALE, AND THE LAND DEPARTMENT WAS THEREFORE WITHOUT
AUTHORITY TO CONVEY RIGHTS THEREIN.  IT FOLLOWS THAT THE HOMESTEADERS
ACQUIRED NO INTEREST IN THE LAND WITHIN THE RIGHT OF WAY BECAUSE OF THE
FACT THAT THE GRANT TO THEM WAS OF THE FULL LEGAL SUBDIVISIONS."  ID.,
AT 270. 

THE COURT THEN WENT ON TO HOLD THAT THE RIGHT OF WAY GRANTED BY THE
ACT OF 1864 GAVE THE RAILROAD "A LIMITED FEE, MADE ON AN IMPLIED
CONDITION OF REVERTER IN THE EVENT THAT THE COMPANY CEASED TO USE OR
RETAIN THE LAND FOR THE PURPOSE FOR WHICH IT WAS GRANTED" AND THAT TO
ALLOW PRIVATE PARTIES TO ACQUIRE PART OF THIS LAND BY ADVERSE
POSSESSION WOULD DEFEAT CONGRESS' PLAINLY MANIFESTED DESIRE THAT THE
ENTIRE RIGHT OF WAY CONTINUE TO BE THE GRANTEE'S SO LONG AS THE
RAILROAD WAS MAINTAINED. 

ALL LATER OPINIONS OF THE COURT CONCERNING THE RAILROAD STATUTES OF
THE '60'S EXPRESS AN UNDEVIATING ADHERENCE TO THE SCOPE GIVEN TO THIS
GRANT AS ANNOUNCED BY THE BALDWIN CASE, SUPRA, IN 1881.  E.G., NORTHERN
PACIFIC R. CO. V. ELY, 197 U.S. 1, 6; CLAIRMONT V. UNITED STATES, 225
U.S. 551, 556; UNION PACIFIC R. CO. V. LARAMIE STOCK YARDS CO., 231
U.S. 190, 198; MISSOURI, K. & T.R. CO. V. OKLAHOMA, 271 U.S. 303, 308. 

THIS CONSISTENT COURSE OF CONSTRUCTION IS BOUND TO GIVE THE
IMPRESSION THAT CONGRESS WAS RATHER FREE-HANDED IN ITS DISPOSITION OF
THE PUBLIC DOMAIN NINETY YEARS AND MORE AGO.  AND SO IT WAS.  WE SAID
IN GREAT NORTHERN R. CO. V. UNITED STATES, 315 U.S. 262, 273: 

"BEGINNING IN 1850, CONGRESS EMBARKED ON A POLICY OF SUBSIDIZING
RAILROAD CONSTRUCTION BY LAVISH GRANTS FROM THE PUBLIC DOMAIN.  TYPICAL
WERE THE ILLINOIS CENTRAL GRANT, ACT OF SEPTEMBER 20, 1850, C. 61, 9
STAT. 466; UNION PACIFIC GRANT OF JULY 1, 1862, C. 120, 12 STAT. 489;
AMENDED UNION PACIFIC GRANT, ACT OF JULY 2, 1864, C. 216, 13 STAT. 356;
AND NORTHERN PACIFIC GRANT, ACT OF JULY 2, 1864, C. 217, 13 STAT. 365. 
THIS LAST GRANT WAS THE LARGEST, INVOLVING AN ESTIMATED 40,000,000
ACRES.  IN VIEW OF THIS LAVISH POLICY OF GRANTS FROM THE PUBLIC DOMAIN
IT IS NOT SURPRISING THAT THE RIGHTS OF WAY CONVEYED IN SUCH LAND-GRANT
ACTS HAVE BEEN HELD TO BE LIMITED FEES.  NORTHERN PACIFIC RY. CO. V.
TOWNSEND, 190 U.S. 267.  CF. MISSOURI, K. & T. RY. CO. V. ROBERTS, 152
U.S. 114."  (FN1)

DURING THIS PERIOD "THERE PASSED INTO THE HANDS OF WESTERN RAILROAD
PROMOTERS AND BUILDERS A TOTAL OF 158,293,000 ACRES, AN AREA ALMOST
EQUALING THAT OF THE NEW ENGLAND STATES, NEW YORK AND PENNSYLVANIA
COMBINED."  "LAND GRANTS," 9 ENCYCLOPEDIA OF THE SOCIAL SCIENCES (1935)
32, 35.  THE POWERFUL THADDEUS STEVENS, HIMSELF THE PROPONENT OF THE
NORTHERN PACIFIC BILL, SPOKE WITH AUTHORITATIVE TRUTHFULNESS WHEN HE
SAID OF THE HOUSE COMMITTEE THAT APPROVED IT:  "THE COMMITTEE WAS
WILLING TO GIVE TO THE COMPANY ALMOST ANY AMOUNT OF LAND THAT IT
THOUGHT IT COULD MAKE USE OF  ... ." IN ORDER TO INDUCE CONSTRUCTION OF
THE RAILROAD.  CONG. GLOBE, 38TH CONG., 1ST SESS. 1698.  (FN2)

THIS "LAVISH" CONGRESSIONAL POLICY BROUGHT RESULTS, FOR IN 1869 THE
MUCH DESIRED TRANSCONTINENTAL ROUTE WAS COMPLETED.  WITH REALIZATION OF
THE GOAL, HOWEVER, THE MOOD OF UNCRITICAL ENTHUSIASM TOWARD RAILROAD
ENTERPRISES BEGAN TO VEER.  THE COURT SUMMARIZED THE CONSEQUENCES OF
THIS SHIFT IN POPULAR FEELING IN THE GREAT NORTHERN CASE: 

"THIS POLICY OF "LAVISH GRANTS FROM THE PUBLIC DOMAIN" INCURRED GREAT
PUBLIC DISFAVOR, WHICH WAS CRYSTALLIZED IN THE FOLLOWING RESOLUTION
ADOPTED BY THE HOUSE OF REPRESENTATIVES ON MARCH 11, 1872: 

"'RESOLVED, THAT IN THE JUDGMENT OF THIS HOUSE THE POLICY OF GRANTING
SUBSIDIES IN PUBLIC LANDS TO RAILROADS AND OTHER CORPORATIONS OUGHT TO
BE DISCONTINUED, AND THAT EVERY CONSIDERATION OF PUBLIC POLICY AND
EQUAL JUSTICE TO THE WHOLE PEOPLE REQUIRES THAT THE PUBLIC LANDS SHOULD
BE HELD FOR THE PURPOSE OF SECURING HOMESTEADS TO ACTUAL SETTLERS, AND
FOR EDUCATIONAL PURPOSES, AS MAY BE PROVIDED BY LAW.'  CONG. GLOBE, 42D
CONG., 2D SESS., 1585 (1872).  AFTER 1871 OUTRIGHT GRANTS OF PUBLIC
LANDS TO PRIVATE RAILROAD COMPANIES SEEM TO HAVE BEEN DISCONTINUED. 
BUT, TO ENCOURAGE DEVELOPMENT OF THE WESTERN VASTNESSES, CONGRESS HAD
TO GRANT RIGHTS TO LAY TRACK ACROSS THE PUBLIC DOMAIN, RIGHTS WHICH
COULD NOT BE SECURED AGAINST THE SOVEREIGN BY EMINENT DOMAIN
PROCEEDINGS OR ADVERSE USER.  FOR A TIME SPECIAL ACTS WERE PASSED
GRANTING TO DESIGNATED RAILROADS SIMPLY 'THE RIGHT OF WAY' THROUGH THE
PUBLIC LANDS OF THE UNITED STATES.  THAT THOSE ACTS WERE NOT INTENDED
TO CONVEY ANY LAND IS INFERABLE FROM REMARKS IN CONGRESS BY THOSE
SPONSORING THE MEASURES  ...  . 

"THE BURDEN OF THIS SPECIAL LEGISLATION MOVED CONGRESS TO ADOPT THE
GENERAL RIGHT OF WAY STATUTE NOW BEFORE THIS COURT  ...  ."  315 U.S.,
AT 273-275 (FOOTNOTES OMITTED).   THE GENERAL RIGHT OF WAY STATUTE OF
1875, 18 STAT. 482, WAS SIGNIFICANTLY DIFFERENT FROM THE ACT OF 1862
AND ITS COMPANIONS.  IT GRANTED THE RAILROADS NEITHER ALTERNATE
PROVIDED FOR WAS HALF THE WIDTH OF THAT GIVEN BY THE 1862 AND 1864
LAWS.  AND SEC. 2 OF THE ACT STATED THAT ANY RAILROAD WHOSE RIGHT OF
WAY RAN THROUGH A CANYON, PASS OR DEFILE, FOR THE PURPOSES OF ITS ROAD,
IN COMMON WITH THE ROAD FIRST LOCATED  ...  ."  MOREOVER, SEC. 4
REQUIRED THE RECIPIENT OF EACH RIGHT OF WAY TO NOTE ITS LOCATION ON THE
PLATS IN THE LOCAL LAND OFFICE, AND PROVIDED THAT "THEREAFTER ALL SUCH
LANDS OVER WHICH SUCH RIGHT OF WAY SHALL PASS SHALL BE DISPOSED OF
SUBJECT TO SUCH RIGHT OF WAY  ...  ." 

DETAILED STUDY OF THE HISTORY OF FEDERAL RIGHT OF WAY LEGISLATION LED
US TO CONCLUDE IN THE GREAT NORTHERN CASE THAT A RIGHT OF WAY GRANTED
BY THE 1875 ACT WAS AN EASEMENT AND NOT A LIMITED FEE.  (FN3)  FROM
THIS IT FOLLOWED THAT THE RAILROAD HAD NO RIGHT TO THE UNDERLYING
MINERALS.  BASIC TO THE COURT'S CHARACTERIZATION OF THE RIGHT OF WAY AS
AN EASEMENT WAS THE RECOGNITION THAT "SINCE IT (THE GENERAL RIGHT OF
WAY STATUTE) WAS A PRODUCT OF THE SHARP CHANGE IN CONGRESSIONAL POLICY
WITH RESPECT TO RAILROAD GRANTS AFTER 1871, IT IS IMPROBABLE THAT
CONGRESS INTENDED BY IT TO GRANT MORE THAN A RIGHT OF PASSAGE, LET
ALONE MINERAL RICHES."  ID., AT 275.  THE CHANGE IN CONGRESSIONAL
POLICY WAS FOUND TO BE REFLECTED IN THE LANGUAGE OF THE STATUTE, WHICH
STRONGLY SUGGESTED THE GRANT OF A RIGHT OF USE AND OCCUPANCY ONLY. 
ESPECIALLY PERSUASIVE WAS THE PROVISION OF SEC. 4 THAT "LANDS OVER
WHICH SUCH RIGHT OF WAY SHALL PASS SHALL BE DISPOSED OF SUBJECT TO SUCH
RIGHT OF WAY."  ID., AT 271, 278.  LEGISLATIVE HISTORY AND
SUBSTANTIALLY CONTEMPORANEOUS ADMINISTRATIVE CONSTRUCTION CONFIRMED
THIS VIEW.  (FN4)  THESE STRONG DIFFERENTIATING FACTORS LED THE COURT
TO CONCLUDE THAT THE LINE OF CASES INTERPRETING THE LAVISH PRE-1871
GRANTS WAS NOT CONTROLLING.  BUT NO DOUBT WAS CAST UPON THE SCOPE TO BE
ATTRIBUTED TO THOSE DECISIONS WITH RESPECT TO THE ACT OF 1862 AND ITS
ASSOCIATED MEASURES:  "WHEN CONGRESS MADE OUTRIGHT GRANTS TO A RAILROAD
OF ALTERNATE SECTIONS OF PUBLIC LANDS ALONG THE RIGHT OF WAY, THERE IS
LITTLE REASON TO SUPPOSE THAT IT INTENDED TO GIVE ONLY AN EASEMENT IN
THE RIGHT OF WAY GRANTED IN THE SAME ACT.  AND, IN NONE OF THOSE ACTS
WAS THERE ANY PROVISION COMPARABLE TO THAT OF SEC. 4 OF THE 1875 ACT
...  ."  ID., AT 278. 

THE SIGNIFICANCE OF THE IMPOSING BODY OF OPINIONS CULMINATING IN THE
TOWNSEND CASE IS NOT DIMINISHED IF ONE ACKNOWLEDGES, AS WAS DONE IN
GREAT NORTHERN, THAT THEY DID NOT EXPLICITLY DECIDE THE RIGHTS TO
MINERALS.  AS WE HAVE SEEN, IN CASE AFTER CASE THIS COURT DETERMINED
THE RAILROAD'S INTEREST IN THE RIGHT OF WAY GRANTED BY THE PRE-1871
LAWS TO BE A LIMITED FEE.  THIS TERM HAS A SETTLED MEANING - IT DENOTES
PRESENT OWNERSHIP OF THE ENTIRE INTEREST IN LAND, AN OWNERSHIP THAT
WILL CONTINUE SO LONG AS A STATED CONTINGENCY, LEADING TO A REVERTER,
DOES NOT OCCUR.  THE COURT'S REPEATED USE OF THIS HIGHLY TECHNICAL TERM
WAS NOT INADVERTENT.  IN THE UNITED STATES TRUST CO. CASE, FOR EXAMPLE,
IN REPLY TO THE CONTENTION THAT THE ROBERTS CASE WAS NOT CONTROLLING
BECAUSE THE DISTINCTION BETWEEN AN EASEMENT AND A FEE HAD NOT BEEN
PRESENTED THERE, THE COURT SAID: 

"  ...  THE DIFFERENCE BETWEEN AN EASEMENT AND THE FEE WOULD NOT HAVE
ESCAPED HIS (MR.  JUSTICE FIELD'S) ATTENTION AND THAT OF THE WHOLE
COURT, WITH THE INEVITABLE RESULT OF COMMITTING IT TO THE CONSEQUENCES
WHICH MIGHT DEPEND UPON SUCH DIFFERENCE."  172 U.S., AT 182. 

THE COURT THEN WENT ON TO HOLD THAT ONE OF THE CONSEQUENCES OF THE
RAILROAD'S FEE INTEREST IN THE RIGHT OF WAY, I.E., ITS OWNERSHIP OF
"THE LAND ITSELF," WAS EXEMPTION FROM STATE TAXATION OF IMPROVEMENTS
ERECTED THEREON.  ANOTHER OF THOSE CONSEQUENCES, OF COURSE, IS
OWNERSHIP OF THE MINERALS UNDERLYING THE RIGHT OF WAY.  CERTAINLY THIS
WAS ACKNOWLEDGED IN TOWNSEND WHEN THE COURT HELD THAT THE LAND FORMING
THE RIGHT OF WAY WAS NO LONGER PUBLIC LAND AND THAT, CONSEQUENTLY, THE
LAND DEPARTMENT WAS "WITHOUT AUTHORITY TO CONVEY RIGHTS THEREIN" AND
THOSE CLAIMING UNDER GOVERNMENT PATENTS "ACQUIRED NO INTEREST IN THE
LAND WITHIN THE RIGHT OF WAY."  SEE SUPRA, P. 124.  IF MINERAL RIGHTS
HAD NOT BEEN INCLUDED IN THE FEE, THE PATENTS ISSUED BY THE UNITED
STATES WOULD HAVE CONVEYED THOSE RIGHTS.  THE LEGAL CONSEQUENCE THAT
MINERAL RIGHTS ARE EMBRACED IN A GRANT THAT CONVEYS A LIMITED FEE
GOVERNED THE JUDGMENT OF TWO FEDERAL COURTS THAT WERE CALLED UPON TO
CONSTRUE A SIMILAR GRANT MADE TO THE ILLINOIS CENTRAL BY THE ACT OF
1850.  UNITED STATES V. ILLINOIS CENTRAL R. CO., 89 F. SUPP. 17;
AFFIRMED, 187 F.2D 374.  (FN5)  TO ARGUE THAT THE "LIMITED FEE" THAT
THE LONG, UNBROKEN LINE OF CASES FOUND IN THE RIGHT OF WAY GRANT IN
THESE ENACTMENTS OF THE '60'S GRANTED A FEE MERELY IN THE SURFACE IS TO
PALTER WITH LANGUAGE AND WITH OUR DECISIONS.  "SURFACE" COULD NOT, OF
COURSE, MEAN MERELY THE AREA THAT IS SEEN BY THE EYE.  TO SAY THAT IT
MEANS THE VISUAL AREA AND AN INDETERMINATE DEPTH - X INCHES OR X FEET -
NECESSARY FOR SUPPORT IS TO ASK THE COURT TO REWRITE LEGISLATION AND TO
CAST UPON IT ADMINISTRATIVE TASKS IN ORDER TO ACCOMPLISH A POLICY THAT
SEEMS DESIRABLE A HUNDRED YEARS AFTER CONGRESS ACTED ON A DIFFERENT
OUTLOOK.  NO WONDER THAT THIS COURT DID NOT ACCEPT SUCH AN INADMISSIBLE
RETROSPECTIVE READING OF A STATUTE WHEN THE GOVERNMENT PRESSED IT ON US
IN THE GREAT NORTHERN CASE.  SEE ARGUMENT FOR THE UNITED STATES, 315
U.S., AT 269. 

THE TOWNSEND CASE ALSO SERVES TO REFUTE THE SUGGESTION THAT THE
RAILROAD IN ITS USE OF THE RIGHT OF WAY IS CONFINED TO WHAT IN 1957 IS
NARROWLY CONCEIVED TO BE "A RAILROAD PURPOSE."  TOWNSEND FLATLY
REAFFIRMED WHAT ITS PREDECESSORS STATED - THAT THE GRANT SHOULD BE
CONSTRUED "AS THOUGH THE LAND HAD BEEN CONVEYED IN TERMS TO HAVE AND TO
HOLD THE SAME SO LONG AS IT WAS USED FOR THE RAILROAD RIGHT OF WAY." 
190 U.S., AT 271.  THE COURT RECOGNIZED THAT THE LAND COULD REVERT TO
THE GRANTOR ONLY IN THE EVENT THAT IT WAS USED IN A MANNER INCONSISTENT
WITH THE OPERATION OF THE RAILROAD, A SITUATION CONTRARY TO THAT FOUND
BY THE DISTRICT COURT IN THIS CASE.  HAD CONGRESS DESIRED TO MAKE A
MORE RESTRICTIVE GRANT OF THE RIGHT OF WAY, THERE WOULD HAVE BEEN NO
DIFFICULTY IN MAKING THE CONTINGENCY FOR THE LAND'S REVERSION ITS USE
FOR ANY PURPOSE OTHER THAN ONE APPROPRIATELY SPECIFIED.  CF. CALDWELL
V. UNITED STATES, 250 U.S. 14; LOS ANGELES & SALT LAKE R. CO. V. UNITED
STATES, 140 F.2D 436.  BUT, AS WE HAVE SEEN, THE CONGRESSIONAL POLICY
IN 1862 WAS ONE OF LIBERALITY, PRODIGALITY AS IT LATER CAME TO APPEAR,
IN ORDER TO ENCOURAGE THE CONSTRUCTION OF THE RAILROAD.  IT IS
INCONCEIVABLE THAT THE CONGRESS THAT MADE GENEROUS LOANS TO THE UNION
PACIFIC AND GRANTED IT ENORMOUS AREAS OF LAND FOR RESALE AT SUBSTANTIAL
GAIN WOULD HAVE BALKED AT ITS PROFITABLE RESORT TO THE MINERALS
UNDERNEATH THE RIGHT OF WAY IN A MANNER COMPLETELY CONSISTENT WITH THE
SATISFACTORY OPERATION OF THE RAILROAD.  FURTHER SUPPORT FOR THIS VIEW
IS PROVIDED BY SEC. 3 OF THE 1864 AMENDMENT OF THE ACT BEFORE US.  IT
GAVE THE RAILROAD POWER TO TAKE BY EMINENT DOMAIN A TWO-HUNDRED-FOOT
RIGHT OF WAY OVER PRIVATELY OWNED LAND, AND DEMONSTRATES THAT, IN
GRANTING FOUR-HUNDRED-FOOT STRIPS OF PUBLIC LAND TO UNION PACIFIC AND
NORTHERN PACIFIC, CONGRESS PURSUED A CONSCIOUS POLICY OF PROVIDING
THESE RAILROADS WITH MORE LAND THAN WAS NECESSARY MERELY TO PROVIDE A
SITE FOR THEIR CONSTRUCTION.  AS THE BALDWIN CASE RECOGNIZED, "THE
RIGHT OF WAY FOR THE WHOLE DISTANCE OF THE PROPOSED ROUTE WAS A VERY
IMPORTANT PART OF THE AID GIVEN."  103 U.S., AT 430.  OUT OF RESPECT
FOR THE GENEROUS POLICY EMBODIED IN PRE-1871 LEGISLATION, THIS COURT
HAS UNTIL TODAY RECOGNIZED THE RAILROAD'S RIGHT TO ENJOY ITS FEE
INTEREST IN THE RIGHT OF WAY.  SEE NORTHERN PACIFIC R. CO. V. SMITH,
171 U.S. 260, 275-276. 

IT IS SAID THAT SEC. 3'S EXCEPTION OF "MINERAL LANDS" FROM ITS GRANT
OF ALTERNATE SECTIONS OF PUBLIC LANDS MAY ALSO HAVE BEEN AN INEPT WAY
OF RESERVING THE RIGHTS TO THE MINERALS UNDERNEATH THE RIGHT OF WAY
GRANTED BY SEC. 2.  THIS ATTRIBUTES TO THE 1862 CONGRESS A DESIRE TO
CONVEY ONLY THE FEE INTEREST IN THE SURFACE.  SUCH ATTRIBUTION
CONTRADICTS THE SCHEME BOTH OF THE ACT ITSELF AND OF SUBSEQUENT PUBLIC
LAND LEGISLATION.  THE ACT PLAINLY CONTEMPLATED, AND WAS INTERPRETED TO
PROVIDE, AN ADMINISTRATIVE DETERMINATION OF THE MINERAL CHARACTER OF
THE LAND GRANTED BY SEC. 3 PRIOR TO THE ISSUANCE OF THE PATENT.  LAND
FOUND TO BE "MINERAL" WAS NOT PATENTED BUT WAS REPLACED BY OTHER LAND. 
IF MINERALS WERE SUBSEQUENTLY FOUND ON PATENTED LAND, THEY WERE HELD
TO BELONG TO THE RAILROAD, AND NOT TO THE GOVERNMENT, BURKE V. SOUTHERN
PACIFIC R. CO., 234 U.S. 669, NOTWITHSTANDING SEC. 3'S EXCEPTION OF
"MINERAL LANDS."  SINCE THIS EXCEPTION DID NOT RESERVE THE RIGHT TO
MINERALS IN LAND THAT PASSED UNDER SEC. 3 ITSELF, IT IS DIFFICULT TO
UNDERSTAND HOW IT COULD HAVE RESERVED THE RIGHT TO MINERALS IN LAND
THAT PASSED AS A RIGHT OF WAY UNDER SEC. 2.  THE FACT THAT THE
EXCEPTION WAS MADE APPLICABLE TO THE ENTIRE ACT MAY BE EXPLAINED
WITHOUT DISTORTING SEC. 2.  SECTIONS 9, 13, AND 14 OF THE 1862 ACT
AUTHORIZE CONSTRUCTION OF CERTAIN OTHER RAILROADS "UPON THE SAME TERMS
AND CONDITIONS IN ALL RESPECTS AS ARE PROVIDED IN THIS ACT FOR THE
CONSTRUCTION OF THE" UNION PACIFIC.  BY AMENDING SEC. 3'S PROVISO TO
COVER THE ENTIRE ACT, CONGRESS LEFT NO DOUBT THAT THE EXCEPTION OF
MINERAL LANDS ALSO APPLIED TO THE LAND GRANTS MADE TO THOSE OTHER
RAILROADS. 

IF CONGRESS HAD RESERVED THE RIGHT TO THE MINERALS UNDERLYING THE
THOUSANDS OF MILES OF RIGHT OF WAY GRANTED BY ITS TRANSCONTINENTAL
RAILROAD LEGISLATION OF 1862, 1864 AND 1866, IT MIGHT REASONABLY BE
EXPECTED THAT IT WOULD HAVE MANIFESTED SOME CONSCIOUSNESS OF THIS
RESERVATION WHEN, IN THE ACT OF JULY 26, 1866, 14 STAT. 251, IT FINALLY
SETTLED UPON A GENERAL FEDERAL MINERAL POLICY.  THIS IS PARTICULARLY
TRUE IN VIEW OF THE FACT THAT THE POLICY DETERMINED WAS NOT ONE OF
ZEALOUSLY RESERVING THE MINERALS FOR THE GOVERNMENT BUT ONE OF MAKING
THE COUNTRY'S MINERAL RICHES READILY AVAILABLE FOR IMMEDIATE
DEVELOPMENT BY PRIVATE INTERESTS.  SECTION 1 OF THE ACT PROVIDED "THAT
THE MINERAL LANDS OF THE PUBLIC DOMAIN  ...  ARE HEREBY DECLARED TO BE
FREE AND OPEN TO EXPLORATION AND OCCUPATION ...  ."  OTHER SECTIONS SET
FORTH THE CONDITIONS FOR ACQUIRING MINERAL LANDS.  YET NOWHERE IN THE
ACT IS THERE INTIMATION OF GOVERNMENT OWNERSHIP OF THE MINERAL RIGHTS
NOW FOUND, FOR THE FIRST TIME, TO HAVE BEEN RESERVED BY CONGRESS IN ITS
GRANTS TO THE RAILROADS IN THE 1860'S. 

THIS FAILURE OF CONGRESS TO PROVIDE FOR DISPOSITION OF THE MINERALS
LYING BENEATH THE RIGHT OF WAY MAY NOT FAIRLY BE ATTRIBUTED TO
OVERSIGHT.  NO CONGRESSIONAL POLICY OF RESERVING MINERAL RIGHTS FROM
PUBLIC LAND GRANTS WAS IN EXISTENCE IN THE 1860'S.  SUCH A POLICY DID
NOT BEGIN TO EVOLVE UNTIL THE LAST DECADE OF THE NINETEENTH CENTURY,
WHEN CONGRESS RESERVED THE MINERAL RIGHTS TO CERTAIN LANDS SOLD TO
CITIES FOR CEMETERY AND PARK PURPOSES, 26 STAT. 502.  AND IT RECEIVED
ITS FIRST GENERAL APPLICATION IN THE ACT OF MARCH 3, 1909, 35 STAT.
844, WHICH PERMITTED AGRICULTURAL ENTRYMEN ON PUBLIC LANDS SUBSEQUENTLY
FOUND TO CONTAIN COAL DEPOSITS TO OBTAIN PATENTS TO THE LAND, WITH COAL
RIGHTS RESERVED TO THE UNITED STATES.  THE NOVELTY OF THUS SEPARATING
SURFACE OWNERSHIP FROM OWNERSHIP OF THE SUBSOIL WAS MADE PLAIN BY A
COLLOQUY IN THE HOUSE DEBATE ON THIS ACT: 

"MR. STEPHENS OF TEXAS.  I DESIRE TO KNOW THE DIFFERENCE BETWEEN THIS
LAW WHICH THE GENTLEMAN PROPOSES AND THE LAW AS IT NOW EXISTS.  WHAT
CHANGE IS PROPOSED, AND WHY? 

"MR. MONDELL OF WYOMING, CHAIRMAN OF THE HOUSE PUBLIC LANDS
COMMITTEE.  ...  THIS BILL SIMPLY PROVIDES THAT IN ANY CASE WHERE,
SUBSEQUENT TO THE LOCATION OR THE ENTRY, THE CHARACTER OF THE LAND HAS
BEEN CALLED INTO QUESTION THE ENTRYMAN MAY, IF HE SO ELECT, ACCEPT A
LIMITED PATENT.  IT IS THE FIRST LEGISLATION BEFORE CONGRESS PROVIDING
FOR A LIMITED PATENT, OR A PATENT RESERVING THE MINERAL ...  . 

"MR. STEPHENS OF TEXAS.  IS IT NOT A FACT THAT VALUABLE MINERALS ARE
RESERVED NOW TO THE GOVERNMENT? 

"MR. MONDELL.  NO; THIS IS NOT TRUE.  THE PATENT HAVING ISSUED, THE
PATENT CARRIES EVERYTHING IN THE LAND WITH IT  ...  . 

     *         *         *         *         * 

"IN OTHER WORDS, THE PATENTS ISSUED BY THE GOVERNMENT OF THE UNITED
STATES HERETOFORE HAVE BEEN PATENTS IN FEE."  43 CONG. REC. 2504. 
(FN6) 

IN 1910 THE ACT WAS EXTENDED TO PROVIDE FOR ISSUANCE OF PATENTS TO
LANDS THAT WERE KNOWN TO CONTAIN COAL AT THE TIME THEY WERE SETTLED FOR
AGRICULTURAL PURPOSES.  36 STAT. 583.  THE SURFACE PATENT ACT OF 1914,
38 STAT. 509, APPLIED THE STATUTORY POLICY WITH RESPECT TO COAL TO ALL
WITHDRAWN NON-METALLIC MINERAL LANDS.  THIS ACT HAS BEEN DESCRIBED AS
"PERHAPS THE FIRST SERIOUS ATTEMPT, NOT LOCALLY LIMITED, TO SEVER THE
SURFACE TITLE FROM THE MINERAL TITLE IN DISPOSING OF THE PUBLIC
DOMAIN."  MORRISON AND DE SOTO, OIL AND GAS RIGHTS, 508.  IT WAS
FOLLOWED BY THE STOCK-RAISING HOMESTEAD ACT OF 1916, 39 STAT. 862,
WHICH RESERVED ALL MINERALS TO THE UNITED STATES WHILE PROVIDING FOR
THE GRANTING OF SURFACE PATENTS.  SIGNIFICANTLY, IN THE COMPREHENSIVE
MINERAL LEASING ACT OF 1920, 41 STAT. 437, CONGRESS DID WHAT IT HAD NOT
DONE IN 1866 - IT SET FORTH A PLAN FOR THE DEVELOPMENT OF THE MINERALS
THAT THE 1909-1916 ACTS HAD RESERVED FOR THE UNITED STATES. 

THE THIRTY-SEVENTH CONGRESS WAS CONFRONTED WITH WHAT IT DEEMED THE
PRESSING NEED TO STIMULATE THE RAPID CONSTRUCTION OF A TRANSCONTINENTAL
RAILROAD.  IN THE ACT OF 1862 IT OFFERED THE UNION PACIFIC LURING
INCENTIVES TO ATTEMPT THIS TASK, WHICH "MANY INTELLIGENT PERSONS
CONSIDERED INSURMOUNTABLE."  UNITED STATES V. UNION PACIFIC R. CO., 91
U.S. 72, 80.  THE SPECIFIC GRANT CONTAINED IN SEC. 2 HAS LONG BEEN
INTERPRETED AS CONVEYING THE ENTIRE PRESENT INTEREST IN THE LAND
FORMING THE RIGHT OF WAY.   THIS BODY OF OPINIONS, WRITTEN BY MEMBERS
OF THE COURT MORE STEEPED IN PUBLIC LAND LAW AND MORE SENSITIVE TO THE
CIRCUMSTANCES OF THE TIMES THAN WE CAN POSSIBLY BE, SEEMS TO ME TO
CONSTITUTE TOO WEIGHTY A CONSTRUCTION OF SEC. 2 TO BE NOW OVERTURNED. 
IT IS OF COURSE THE COURT'S DUTY TO ENFORCE THE WILL OF CONGRESS ONCE
THAT HAS BEEN REASONABLY ASCERTAINED FROM THE LANGUAGE IN WHICH
CONGRESS EXPRESSED ITS WILL.  BUT THE ASCERTAINMENT OF WHAT CONGRESS
MEANT FROM WHAT IT SAID, IN LEGISLATION LIKE THAT BEFORE THE COURT,
DOES NOT GAIN CLARITY WITH TIME SO AS TO DISPLACE THE UNIFORM
CONSTRUCTION PUT BY THIS COURT FROM THE BEGINNING, ALMOST EIGHTY YEARS
AGO, ON WHAT CONGRESS SAID.  THE COURT CANNOT IN 1957 RETRIEVE WHAT
CONGRESS GRANTED IN 1862.  THE HINDSIGHT THAT REVEALS THE ACT AS LAVISH
OR EVEN PROFLIGATE OUGHT NOT TO INFLUENCE THE COURT TO NARROW THE SCOPE
OF THE 1862 GRANT BY READING IT IN THE LIGHT OF A POLICY THAT DID NOT
MATURE UNTIL HALF A CENTURY THEREAFTER.  AS THE COURT SAID IN A VERY
EARLY CONSTRUCTION OF THE ACT BEFORE US:  "NO ARGUMENT CAN BE DRAWN
FROM THE WISDOM THAT COMES AFTER THE FACT."  UNITED STATES V. UNION
PACIFIC R. CO., SUPRA, AT 81.   I WOULD AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS. 

FN1  THE LAST THREE SENTENCES QUOTED WERE A FOOTNOTE TO THE FIRST
SENTENCE. 

FN2  WHEN STRIVING TO UNDERSTAND THE BASIS FOR THIS BOUNTIFUL
CONGRESSIONAL POLICY, IT IS HELPFUL TO RECALL WHAT THIS COURT SAID IN
UNITED STATES V. UNION PACIFIC R. CO., 91 U.S. 72, 79-80: 

"MANY OF THE PROVISIONS IN THE ORIGINAL ACT OF 1862 ARE OUTSIDE OF
THE USUAL COURSE OF LEGISLATIVE ACTION CONCERNING GRANTS TO RAILROADS,
AND CANNOT BE PROPERLY CONSTRUED WITHOUT REFERENCE TO THE CIRCUMSTANCES
WHICH EXISTED WHEN IT WAS PASSED.  THE WAR OF THE REBELLION WAS IN
PROGRESS; AND, OWING TO COMPLICATIONS WITH ENGLAND, THE COUNTRY HAD
BECOME ALARMED FOR THE SAFETY OF OUR PACIFIC POSSESSIONS  ...  .  IT IS
TRUE, THE THREATENED DANGER WAS HAPPILY AVERTED; BUT WISDOM POINTED OUT
THE NECESSITY OF MAKING SUITABLE PROVISION FOR THE FUTURE.  THIS COULD
BE DONE IN NO BETTER WAY THAN BY THE CONSTRUCTION OF A RAILROAD ACROSS
THE CONTINENT.  SUCH A ROAD WOULD BIND TOGETHER THE WIDELY SEPARATED
PARTS OF OUR COMMON COUNTRY, AND FURNISH A CHEAP AND EXPEDITIOUS MODE
FOR THE TRANSPORTATION OF TROOPS AND SUPPLIES  ...  . 

"  ...  ALTHOUGH THIS ROAD WAS A MILITARY NECESSITY, THERE WERE OTHER
REASONS ACTIVE AT THE TIME IN PRODUCING AN OPINION FOR ITS COMPLETION
BESIDES THE PROTECTION OF AN EXPOSED FRONTIER.  THERE WAS A VAST
UNPEOPLED TERRITORY LYING BETWEEN THE MISSOURI AND SACRAMENTO RIVERS
WHICH WAS PRACTICALLY WORTHLESS WITHOUT THE FACILITIES AFFORDED BY A
RAILROAD FOR THE TRANSPORTATION OF PERSONS AND PROPERTY.  WITH ITS
CONSTRUCTION, THE AGRICULTURAL AND MINERAL RESOURCES OF THIS TERRITORY
COULD BE DEVELOPED, SETTLEMENTS MADE WHERE SETTLEMENTS WERE POSSIBLE,
AND THEREBY THE WEALTH AND POWER OF THE UNITED STATES LARGELY
INCREASED; AND THERE WAS ALSO THE PRESSING WANT, IN TIME OF PEACE EVEN,
OF AN IMPROVED AND CHEAPER METHOD FOR THE TRANSPORTATION OF THE MAILS,
AND OF SUPPLIES FOR THE ARMY AND THE INDIANS.   "IT WAS IN THE PRESENCE
OF THESE FACTS THAT CONGRESS UNDERTOOK TO DEAL WITH THE SUBJECT OF THIS
RAILROAD.  THE DIFFICULTIES IN THE WAY OF BUILDING IT WERE GREAT, AND
BY MANY INTELLIGENT PERSONS CONSIDERED INSURMOUNTABLE." 

THESE COMPELLING CONSIDERATIONS LED CONGRESS TO OFFER THE UNION
PACIFIC COMPANY WHAT MR. CHIEF JUSTICE WAITE CALLED "EXTRAORDINARY
INDUCEMENTS."  SINKING-FUND CASES, 99 U.S. 700, 723. 

FN3  THE GREAT NORTHERN DECISION DEPARTED FROM THE COURT'S EARLIER
CONSTRUCTION OF THE GENERAL RIGHT OF WAY STATUTE IN RIO GRANDE WESTERN
R. CO. V. STRINGHAM, 239 U.S. 44.  THE STRINGHAM CASE, WRITTEN BY MR.
JUSTICE VAN DEVANTER, HELD, ON THE BASIS OF THE CASES DEALING WITH PRE
1871 LEGISLATION, THAT RIGHT OF WAY GRANTED BY THE 1875 ACT "IS  ...  A
LIMITED FEE,  ...  AND CARRIES WITH IT THE INCIDENTS AND REMEDIES
USUALLY ATTENDING THE FEE."  ID., AT 47. 

FN4  IN EXPLAINING WHY THE HOUSE PUBLIC LANDS COMMITTEE HAD INSERTED
A CLAUSE SIMILAR TO SEC. 4 OF THE 1875 ACT IN A SPECIAL RIGHT OF WAY
BILL CONSIDERED IN 1872, CONGRESSMAN SLATER STATED: 

"THE POINT IS SIMPLY THIS:  THE LAND OVER WHICH THIS RIGHT OF WAY
PASSES IS TO BE SOLD SUBJECT TO THE RIGHT OF WAY.  IT SIMPLY PROVIDES
THAT THIS RIGHT OF WAY SHALL BE AN INCUMBRANCE UPON THE LAND FOR ONE
HUNDRED FEET UPON EACH SIDE OF THE LINE OF THE ROAD; THAT THOSE WHO MAY
AFTERWARD MAKE LOCATIONS FOR SETTLEMENT SHALL NOT INTERFERE WITH THIS
RIGHT OF WAY. 

"MR. SPEER, OF PENNSYLVANIA.  IT GRANTS NO LAND TO ANY RAILROAD
COMPANY?  "MR. SLATER.  NO, SIR."  CONG. GLOBE, 42D CONG., 2D SESS.
2137. 

AND IN THE HOUSE DEBATE ON THE 1875 ACT ITSELF, CONGRESSMAN HAWLEY
SAID:  "IT SIMPLY AND ONLY GIVES THE RIGHT OF WAY.  IT MERELY GRANTS TO
SUCH RAILROAD COMPANIES AS MAY BE CHARTERED THE RIGHT TO LAY THEIR
TRACKS AND RUN THEIR TRAINS OVER THE PUBLIC LANDS; IT DOES NOTHING
MORE."  3 CONG. REC. 407. 

THE EARLIEST ADMINISTRATIVE CONSTRUCTION OF THE 1875 ACT PLAINLY
STATED THAT THE RAILROAD RECEIVED AN EASEMENT RATHER THAN A FEE.  THE
LAND DEPARTMENT CIRCULAR OF JANUARY 13, 1888, SAID: 

"THE ACT OF MARCH 3, 1875, IS NOT IN THE NATURE OF A GRANT OF LANDS;
IT DOES NOT CONVEY AN ESTATE IN FEE, EITHER IN THE 'RIGHT OF WAY' OR
THE GROUNDS SELECTED FOR DEPOT PURPOSES.  IT IS A RIGHT OF USE ONLY,
THE TITLE STILL REMAINING IN THE UNITED STATES."  12 L.D. 423, 428. 

FN5  APPARENTLY THIS HAS ALWAYS BEEN RESPONDENT'S UNDERSTANDING OF
THE RIGHT OF WAY GRANT, FOR THE DISTRICT COURT FOUND THAT "IT HAS LONG
BEEN THE PRACTICE OF THE DEFENDANT WHEN ENTERING INTO LEASES OF
PORTIONS OF ITS RIGHT OF WAY TO RESERVE THE RIGHT TO RETAKE POSSESSION
FOR MINERAL OPERATIONS." 

FN6  THE EXECUTIVE OFFICERS WHO SPONSORED PASSAGE OF THE 1909 ACT
RECOGNIZED THAT THEY WERE ADVOCATING A NEW POLICY.  SECRETARY OF THE
INTERIOR GARFIELD'S 1907 REPORT TO THE PRESIDENT STATED: 

"  ...  I CAN NOT URGE TOO STRONGLY THE NEED OF A CHANGE IN THE
POLICY HITHERTO ADOPTED BY THE GOVERNMENT FOR THE DISPOSITION OF THE
COAL LAND. 

"  ...  THE EXPERIENCE IN OTHER SECTIONS OF OUR COUNTRY AND ABROAD
LEADS ME TO BELIEVE THAT THE BEST POSSIBLE METHOD  ...  IS FOR THE
GOVERNMENT TO RETAIN THE TITLE TO THE COAL, AND TO LEASE UNDER PROPER
REGULATIONS WHICH WILL INDUCE DEVELOPMENT WHEN NEEDED, PREVENT WASTE,
AND PREVENT MONOPOLY.  SUCH A METHOD PERMITS THE SEPARATION OF THE
SURFACE FROM THE COAL AND THE UNHAMPERED USE OF THE SURFACE FOR
PURPOSES TO WHICH IT MAY BE ADAPTED."  REPORT OF THE SECRETARY OF THE
INTERIOR 15 (1907), H.R. DOC. NO. 5, 60TH CONG., 1ST SESS. 15. 

PRESIDENT THEODORE ROOSEVELT'S SPECIAL MESSAGE TO CONGRESS OF JANUARY
22, 1909, RECOMMENDED: "RIGHTS TO THE SURFACE OF THE PUBLIC LAND SHOULD
BE SEPARATED FROM RIGHTS TO FORESTS UPON IT AND TO MINERALS BENEATH IT,
AND THESE SHOULD BE SUBJECT TO SEPARATE DISPOSAL."  15 MESSAGES AND
PAPERS OF THE PRESIDENTS 7266. 
..END :











BENZ V. COMPANIA NAVIERA HIDALGO, S.A. 353 U.S. 138 


NO. 204.  ARGUED MARCH 6, 1957 - DECIDED APRIL 8, 1957 - 233 F.2D 62,
AFFIRMED. 


THE LABOR MANAGEMENT RELATIONS ACT OF 1947 DOES NOT APPLY TO A
CONTROVERSY INVOLVING DAMAGES RESULTING FROM THE PICKETING OF A FOREIGN
SHIP OPERATED ENTIRELY BY FOREIGN SEAMEN UNDER FOREIGN ARTICLES WHILE
THE VESSEL IS TEMPORARILY IN AN AMERICAN PORT, THOUGH AMERICAN UNIONS
TO WHICH THE FOREIGN SEAMEN DID NOT BELONG PARTICIPATED IN THE
PICKETING; AND THE ACT THEREFORE DOES NOT PRECLUDE A REMEDY UNDER STATE
LAW FOR SUCH DAMAGES.  PP. 138-147. 

(A)  CONGRESS COULD HAVE MADE THE LABOR MANAGEMENT RELATIONS ACT
APPLICABLE TO WAGE DISPUTES ARISING ON FOREIGN VESSELS BETWEEN
NATIONALS OF OTHER COUNTRIES WHEN THE VESSEL COMES WITHIN TERRITORIAL
WATERS OF THE UNITED STATES; BUT CONGRESS DID NOT DO SO.  PP. 142-147. 

(B)  THE CASES OF SAILORS' UNION OF THE PACIFIC, 92 N.L.R.B. 547, AND
NORRIS GRAIN CO. V. SEAFARERS' INTERNATIONAL UNION, 232 MINN. 91, 46
N.W.2D 94, ARE INAPPOSITE TO THE QUESTION FOR DECISION HERE.  P. 143,
N. 5. 

(C)  AN INTENT ON THE PART OF CONGRESS TO CHANGE THE CONTRACTUAL
AGREEMENT MADE BY THE FOREIGN SHIPOWNER AND THE FOREIGN SEAMEN IN THIS
CASE CANNOT BE READ INTO THE LABOR MANAGEMENT RELATIONS ACT.  PP. 146
147. 

BENZ ET AL. V. COMPANIA NAVIERA HIDALGO, S.A. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

WHILE THE PETITIONERS IN THIS DIVERSITY CASE PRESENT SEVERAL
QUESTIONS, THE SOLE ONE DECIDED IS WHETHER THE LABOR MANAGEMENT
RELATIONS ACT OF 1947 (FN1) APPLIES TO A CONTROVERSY INVOLVING DAMAGES
RESULTING FROM THE PICKETING OF A FOREIGN SHIP OPERATED ENTIRELY BY
FOREIGN SEAMEN UNDER FOREIGN ARTICLES WHILE THE VESSEL IS TEMPORARILY
IN AN AMERICAN PORT.  WE DECIDED THAT IT DOES NOT, AND THEREFORE DO NOT
REACH OTHER QUESTIONS RAISED BY THE PARTIES. 

THE S.S. RIVIERA ON SEPTEMBER 3, 1952, SAILED INTO HARBOR AT
PORTLAND, OREGON, FOR REPAIRS, TO LOAD A CARGO OF WHEAT, AND TO
COMPLETE AN INSURANCE SURVEY.  IT WAS OWNED BY RESPONDENT, A PANAMANIAN
CORPORATION, AND SAILED UNDER A LIBERIAN FLAG.  THE CREW WAS MADE UP
ENTIRELY OF NATIONALS OF COUNTRIES OTHER THAN THE UNITED STATES,
PRINCIPALLY GERMAN AND BRITISH.  THEY HAD AGREED TO SERVE ON A VOYAGE
ORIGINATING AT BREMEN, GERMANY, FOR A PERIOD OF TWO YEARS, OR UNTIL THE
VESSEL RETURNED TO A EUROPEAN PORT.  A BRITISH FORM OF ARTICLES OF
AGREEMENT WAS OPENED AT BREMEN.  THE CONDITIONS PRESCRIBED BY THE
BRITISH MARITIME BOARD WERE INCORPORATED INTO THE AGREEMENT, INCLUDING
WAGES AND HOURS OF EMPLOYMENT, ALL OF WHICH WERE SPECIFICALLY SET OUT. 
THE CREW FURTHER AGREED TO OBEY ALL LAWFUL COMMANDS OF THE MASTER OF
THE RIVIERA IN REGARD TO THE SHIP, THE STORES, AND THE CARGO, WHETHER
ON BOARD, IN BOATS, OR ON SHORE. 

ON OR ABOUT SEPTEMBER 9, 1952, THE MEMBERS OF THE CREW WENT ON STRIKE
ON BOARD THE VESSEL AND REFUSED TO OBEY THE ORDERS OF THE MASTER.  THEY
DEMANDED THAT THEIR TERM OF SERVICE BE REDUCED, THEIR WAGES BE
INCREASED, AND MORE FAVORABLE CONDITIONS OF EMPLOYMENT BE GRANTED. 
(FN2)  THEY REFUSED TO WORK, DEMANDING THEIR BACK PAY AND
TRANSPORTATION OR ITS COST TO THEIR PORTS OF ENGAGEMENT.  THE MASTER
TOLD THE CREW TO CONTINUE THEIR WORK OR THEY WOULD BE DISCHARGED.  WHEN
THEY DECLINED TO WORK HE DISCHARGED THEM AND ORDERED THEM TO LEAVE THE
SHIP, WHICH THEY REFUSED TO DO. THIS SITUATION CONTINUED UNTIL
SEPTEMBER 26, 1952, WHEN THE STRIKING CREWMEN LEFT THE VESSEL PURSUANT
TO AN ORDER OF THE UNITED STATES DISTRICT COURT ENTERED IN A POSSESSORY
LIBEL FILED BY THE RESPONDENT.  THE CREW HAD PICKETED THE VESSEL FROM
SEPTEMBER 9, 1952, WHEN THE STRIKE BEGAN, UNTIL SEPTEMBER 26, WHEN THEY
LEFT THE SHIP.  ON SEPTEMBER 15, 1952, THEY HAD DESIGNATED THE SAILORS'
UNION OF THE PACIFIC AS THEIR COLLECTIVE BARGAINING REPRESENTATIVE. 
THE STRIKING CREW OR OTHERS ACTING FOR THEM CONTINUED THE PICKETING
FROM SEPTEMBER 26, 1952, UNTIL THEY WITHDREW THE PICKET LINE ON OCTOBER
13, 1952.  THE SAILORS' UNION OF THE PACIFIC BEGAN PICKETING THE
RIVIERA ON OCTOBER 14 AND CONTINUED TO DO SO UNTIL RESTRAINED BY AN
INJUNCTION ISSUED IN AN ACTION FOR INJUNCTIVE RELIEF AND DAMAGES FILED
AGAINST IT AND ITS PRINCIPAL REPRESENTATIVES BY THE RESPONDENT.  TWO
DAYS LATER LOCAL 90 OF THE NATIONAL ORGANIZATION OF MASTERS, MATES AND
PILOTS OF AMERICA SET UP A PICKET LINE AT THE RIVIERA WHICH WAS
MAINTAINED UNTIL DECEMBER 8, 1952.  THIS PICKETING WAS STOPPED BY A
WRIT ISSUED AGAINST THAT UNION AND ITS REPRESENTATIVES IN THE SECOND
ACTION FOR INJUNCTION AND DAMAGES FILED BY RESPONDENT AND CONSOLIDATED
HERE.  ON DECEMBER 10, 1952, ANOTHER PICKET LINE WAS ESTABLISHED AT THE
VESSEL.  IT WAS MAINTAINED THIS TIME BY THE ATLANTIC AND GULF COAST
DISTRICT, S.I.U., (FN3) UNTIL IT TOO WAS ENJOINED ON DECEMBER 12 IN A
THIRD ACTION FILED BY THE RESPONDENT IN WHICH THE PRAYER LIKEWISE WAS
FOR AN INJUNCTION AND DAMAGES.  THESE THREE CASES HAVE BEEN
CONSOLIDATED FOR CONSIDERATION HERE.  ALL OF THE PICKETING WAS
PEACEFUL. 

THE SHIP SAILED IN DECEMBER 1952.  IN JUNE 1953, THE INJUNCTION
ORDERS WERE VACATED ON APPEAL TO THE COURT OF APPEALS AND WERE ORDERED
DISMISSED AS MOOT.  THE CASES WERE RETURNED TO THE DISTRICT COURT FOR
TRIAL ON THE DAMAGE CLAIMS.  205 F.2D 944.  THE SHIP HAD NOT RETURNED
TO AN AMERICAN PORT AT THE TIME OF TRIAL IN 1954.  AT THE TRIAL THE
COURT FOUND THAT THE PURPOSE OF THE PICKETING "WAS TO COMPEL THE
RESPONDENT TO RE-EMPLOY" THE STRIKING MEMBERS OF THE CREW FOR A SHORTER
TERM AND AT MORE FAVORABLE WAGE RATES AND CONDITIONS THAN THOSE AGREED
UPON IN THE ARTICLES.  THE COURT FURTHER FOUND THAT AS A RESULT OF THE
PICKETING THE EMPLOYEES OF THE FIRMS REPAIRING AND LOADING THE VESSEL
REFUSED TO CROSS THE PICKET LINE AND THE SHIP WAS FORCED TO STAND IDLY
BY WITHOUT REPAIRS OR CARGO, ALL TO THE DAMAGE OF RESPONDENT.  THE
UNIONS AND THEIR REPRESENTATIVES CONTENDED THAT THE TRIAL COURT WAS
WITHOUT JURISDICTION BECAUSE THE LABOR MANAGEMENT RELATIONS ACT HAD PRE
EMPTED THE FIELD.  HOWEVER, THE TRIAL COURT ENTERED JUDGMENT FOR
DAMAGES AGAINST THE THREE UNIONS AS WELL AS THEIR PRINCIPAL
REPRESENTATIVES.  THE JUDGMENTS WERE BASED ON A COMMON-LAW THEORY THAT
THE PICKETING WAS FOR AN UNLAWFUL PURPOSE UNDER OREGON LAW.  THE COURT
FOUND THAT RESPONDENT HAD NO REMEDY UNDER THE LABOR MANAGEMENT
RELATIONS ACT BECAUSE THAT ACT "IS CONCERNED SOLELY WITH THE LABOR
RELATIONS OF AMERICAN WORKERS BETWEEN AMERICAN CONCERNS AND THEIR
EMPLOYEES IN THE UNITED STATES, AND IT IS NOT INTENDED TO, NOR DOES IT
COVER A DISPUTE BETWEEN A FOREIGN SHIP AND ITS FOREIGN CREW."  THE
COURT OF APPEALS THOUGHT THAT UNITED CONSTRUCTION WORKERS V. LABURNUM
CONSTRUCTION CORP., 347 U.S. 656 (1954), GOVERNED, BUT THAT OREGON LAW
DID NOT PERMIT RECOVERY AGAINST THE UNIONS SINCE THEY WERE
UNINCORPORATED ASSOCIATIONS.  233 F.2D 62.  (FN4)  THIS, IN EFFECT,
LEFT THE JUDGMENTS STANDING AGAINST THE INDIVIDUAL REPRESENTATIVES OF
THE UNIONS, THE PETITIONERS HERE.  WE GRANTED CERTIORARI IN ORDER TO
SETTLE THE IMPORTANT QUESTION OF JURISDICTION POSED.  352 U.S. 889. 

IT SHOULD BE NOTED AT THE OUTSET THAT THE DISPUTE FROM WHICH THESE
ACTIONS SPRANG AROSE ON A FOREIGN VESSEL.  IT WAS BETWEEN A FOREIGN
EMPLOYER AND A FOREIGN CREW OPERATING UNDER AN AGREEMENT MADE ABROAD
UNDER THE LAWS OF ANOTHER NATION.  THE ONLY AMERICAN CONNECTION WAS
THAT THE CONTROVERSY ERUPTED WHILE THE SHIP WAS TRANSIENTLY IN A UNITED
STATES PORT AND AMERICAN LABOR UNIONS PARTICIPATED IN ITS PICKETING. 

IT IS BEYOND QUESTION THAT A SHIP VOLUNTARILY ENTERING THE
TERRITORIAL LIMITS OF ANOTHER COUNTRY SUBJECTS ITSELF TO THE LAWS AND
JURISDICTION OF THAT COUNTRY.  WILDENHUS'S CASE, 120 U.S. 1 (1887). 
THE EXERCISE OF THAT JURISDICTION IS NOT MANDATORY BUT DISCRETIONARY. 
OFTEN, BECAUSE OF PUBLIC POLICY OR FOR OTHER REASONS, THE LOCAL
SOVEREIGN MAY EXERT ONLY LIMITED JURISDICTION AND SOMETIMES NONE AT
ALL.  CUNARD S.S. CO. V. MELLON, 262 U.S. 100 (1923).  IT FOLLOWS THAT
IF CONGRESS HAD SO CHOSEN, IT COULD HAVE MADE THE ACT APPLICABLE TO
WAGE DISPUTES ARISING ON FOREIGN VESSELS BETWEEN NATIONALS OF OTHER
COUNTRIES WHEN THE VESSEL COMES WITHIN OUR TERRITORIAL WATERS.  THE
QUESTION HERE THEREFORE NARROWS TO ONE OF INTENT OF THE CONGRESS AS TO
THE COVERAGE OF THE ACT. 

THE PARTIES POINT TO NOTHING IN THE ACT ITSELF OR ITS LEGISLATIVE
HISTORY THAT INDICATES IN ANY WAY THAT THE CONGRESS INTENDED TO BRING
SUCH DISPUTES WITHIN THE COVERAGE OF THE ACT.  INDEED THE DISTRICT
COURT FOUND TO THE CONTRARY, SPECIFICALLY STATING THAT THE ACT DOES NOT
"COVER A DISPUTE BETWEEN A FOREIGN SHIP AND ITS FOREIGN CREW."  THE
COURT OF APPEALS, THOUGH NOT PASSING ON THE QUESTION, NOTED THAT "IT
MAY WELL BE THAT AMERICAN LAWS SHOULD NOT BE CONSTRUED TO APPLY,
WITHOUT SOME MORE EXPLICIT CONGRESSIONAL INDICATION THAN WE ARE ABLE TO
FIND IN THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, TO SITUATIONS
WITH AS MANY POINTS OF FOREIGN CONTACT AS THE SITUATION AT BAR."  233
F.2D, AT 65. 

OUR STUDY OF THE ACT LEAVES US CONVINCED THAT CONGRESS DID NOT
FASHION IT TO RESOLVE LABOR DISPUTES BETWEEN NATIONALS OF OTHER
COUNTRIES OPERATING SHIPS UNDER FOREIGN LAWS.  (FN5)  THE WHOLE
BACKGROUND OF THE ACT IS CONCERNED WITH INDUSTRIAL STRIVE BETWEEN
AMERICAN EMPLOYERS AND EMPLOYEES.  IN FACT, NO DISCUSSION IN EITHER
HOUSE OF CONGRESS HAS BEEN CALLED TO OUR ATTENTION FROM THE THOUSANDS
OF PAGES OF LEGISLATIVE HISTORY THAT INDICATES IN THE LEAST THAT
CONGRESS INTENDED THE COVERAGE OF THE ACT TO EXTEND TO CIRCUMSTANCES
SUCH AS THOSE POSED HERE.  IT APPEARS NOT TO HAVE EVEN OCCURRED TO
THOSE SPONSORING THE BILL.  THE REPORT MADE TO THE HOUSE BY ITS
COMMITTEE ON EDUCATION AND LABOR AND PRESENTED BY THE COAUTHOR OF THE
BILL, CHAIRMAN HARTLEY, STATED THAT "THE BILL HEREWITH REPORTED HAS
BEEN FORMULATED AS A BILL OF RIGHTS BOTH FOR AMERICAN WORKINGMEN AND
FOR THEIR EMPLOYERS."  THE REPORT DECLARES FURTHER THAT BECAUSE OF THE
INADEQUACIES OF LEGISLATION "THE AMERICAN WORKINGMAN HAS BEEN DEPRIVED
OF HIS DIGNITY AS AN INDIVIDUAL," AND THAT IT IS THE PURPOSE OF THE
BILL TO CORRECT THESE INADEQUACIES.  H.R. REP. NO. 245, 80TH CONG., 1ST
SESS. 4.  WHAT WAS SAID INESCAPABLY DESCRIBES THE BOUNDARIES OF THE ACT
AS INCLUDING ONLY THE WORKINGMEN OF OUR OWN COUNTRY AND ITS
POSSESSIONS. 

THE PROBLEM PRESENTED IS NOT A NEW ONE TO THE CONGRESS.  IN THE
SEAMEN'S ACT OF MARCH 4, 1915, 38 STAT. 1164, THE CONGRESS DECLARED IT
UNLAWFUL TO PAY A SEAMAN WAGES IN ADVANCE AND SPECIFICALLY DECLARED THE
PROHIBITION APPLICABLE TO FOREIGN VESSELS "WHILE IN WATERS OF THE
UNITED STATES."  ID., AT 1169, AS AMENDED, 46 U.S.C. SEC. 599(E).  IN
SANDBERG V. MCDONALD, 248 U.S. 185 (1918), THIS COURT CONSTRUED THE ACT
AS NOT COVERING ADVANCEMENTS "WHEN THE CONTRACT AND PAYMENT WERE MADE
IN A FOREIGN COUNTRY WHERE THE LAW SANCTIONED SUCH CONTRACT AND PAYMENT
...  .  HAD CONGRESS INTENDED TO MAKE VOID SUCH CONTRACTS AND PAYMENTS
A FEW WORDS WOULD HAVE STATED THAT INTENTION, NOT LEAVING SUCH AN
IMPORTANT REGULATION TO BE GATHERED FROM IMPLICATION."  ID., AT 195. 
THE COURT ADDED THAT "SUCH SWEEPING AND IMPORTANT REQUIREMENT IS NOT
FOUND SPECIFICALLY MADE IN THE STATUTE."  IBID.  SEE ALSO NEILSON V.
RHINE SHIPPING CO., 248 U.S. 205 (1918).  IN 1920 CONGRESS AMENDED SEC.
4 OF THE SEAMAN'S ACT OF 1915, AND GRANTED TO EVERY SEAMAN ON A VESSEL
OF THE UNITED STATES THE RIGHT TO DEMAND ONE-HALF OF HIS THEN EARNED
WAGES AT EVERY PORT THE VESSEL ENTERED DURING A VOYAGE.  41 STAT.
1006, 46 U.S.C. SEC.597.  THE SECTION WAS MADE APPLICABLE 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."  THIS COURT IN STRATHEARN STEAMSHIP CO. V. DILLON, 252
U.S. 348 (1920), UPHELD THE APPLICABILITY OF THE SECTION TO A BRITISH
SEAMAN ON A BRITISH VESSEL UNDER BRITISH ARTICLES.  THE COURT POINTED
OUT: 

"TAKING THE PROVISIONS OF THE ACT AS THE SAME ARE WRITTEN, WE THINK
IT PLAIN THAT IT MANIFESTS THE PURPOSE OF CONGRESS TO PLACE AMERICAN
AND FOREIGN SEAMEN ON AN EQUALITY OF RIGHT IN SO FAR AS THE PRIVILEGES
OF THIS SECTION ARE CONCERNED, WITH EQUAL OPPORTUNITY TO RESORT TO THE
COURTS OF THE UNITED STATES FOR THE ENFORCEMENT OF THE ACT.  BEFORE THE
AMENDMENT  ...  THE RIGHT TO RECOVER ONE-HALF THE WAGES COULD NOT BE
ENFORCED IN FACE OF A CONTRACTUAL OBLIGATION TO THE CONTRARY. 
CONGRESS, FOR REASONS WHICH IT DEEMED SUFFICIENT, AMENDED THE ACT SO AS
TO PERMIT THE RECOVERY UPON THE CONDITIONS NAMED IN THE STATUTE."  ID.,
AT 355. 

IN 1928, JACKSON V. S.S. ARCHIMEDES, 275 U.S. 463, WAS DECIDED BY
THIS COURT.  IT INVOLVED ADVANCE PAYMENTS MADE BY A BRITISH VESSEL TO
FOREIGN SEAMEN BEFORE LEAVING MANCHESTER ON HER VOYAGE TO NEW YORK AND
RETURN.  IT WAS CONTENDED THAT THE ADVANCES MADE IN MANCHESTER WERE
ILLEGAL AND VOID.  THAT THERE WAS "NO INTENTION TO EXTEND THE
PROVISIONS OF THE STATUTE," THE COURT SAID, "TO ADVANCE PAYMENTS MADE
BY FOREIGN VESSELS WHILE IN FOREIGN PORTS, IS PLAIN.  THIS COURT HAD
POINTED OUT IN THE SANDBERG CASE SUPRA THAT SUCH A SWEEPING PROVISION
WAS NOT SPECIFICALLY MADE IN THE STATUTE  ...  ."  ID., AT 470.  SOON
THEREAFTER SEVERAL PROPOSALS WERE MADE IN CONGRESS DESIGNED TO EXTEND
THE COVERAGE OF THE SEAMEN'S ACT SO AS TO PROHIBIT ADVANCEMENTS MADE BY
FOREIGN VESSELS IN FOREIGN PORTS.  A STORM OF DIPLOMATIC PROTEST
RESULTED.  GREAT BRITAIN, ITALY, SWEDEN, NORWAY, DENMARK, THE
NETHERLANDS, GERMANY, AND CANADA ALL JOINED IN VIGOROUSLY DENOUNCING
THE PROPOSALS.  (FN6)  IN EACH INSTANCE THE BILLS DIED IN CONGRESS. 

AND SO HERE SUCH A "SWEEPING PROVISION" AS TO FOREIGN APPLICABILITY
WAS NOT SPECIFIED IN THE ACT.  (FN7)  THE SEAMEN AGREED IN GERMANY TO
WORK ON THE FOREIGN SHIP UNDER BRITISH ARTICLES.  WE CANNOT READ INTO
THE LABOR MANAGEMENT RELATIONS ACT AN INTENT TO CHANGE THE CONTRACTUAL
PROVISIONS MADE BY THESE PARTIES.  FOR US TO RUN INTERFERENCE IN SUCH A
DELICATE FIELD OF INTERNATIONAL RELATIONS THERE MUST BE PRESENT THE
AFFIRMATIVE INTENTION OF THE CONGRESS CLEARLY EXPRESSED.  IT ALONE HAS
THE FACILITIES NECESSARY TO MAKE FAIRLY SUCH AN IMPORTANT POLICY
DECISION WHERE THE POSSIBILITIES OF INTERNATIONAL DISCORD ARE SO
EVIDENT AND RETALIATIVE ACTION SO CERTAIN.  WE, THEREFORE, CONCLUDE
THAT ANY SUCH APPEAL SHOULD BE DIRECTED TO THE CONGRESS RATHER THAN THE
COURTS.  AFFIRMED. 

FN1  61 STAT. 136, 29 U.S.C. SEC. 141.    FN2  THE DEMANDS WERE FIRST
TRANSMITTED TO THE MASTER ON SEPTEMBER 7, 1952, BY A PERSON IDENTIFYING
HIMSELF AS A DELEGATE OF THE SAILORS' UNION OF THE PACIFIC.  NONE OF
THE CREW BELONGED TO THAT UNION.  AT 3 A.M. ON SEPTEMBER 8, 1952, THE
SAME PARTY AND SOME OF THE CREW MEMBERS CALLED ON THE MASTER IN HIS
CABIN.  THEY DEMANDED THAT HE COME TO THE CREW'S QUARTERS AND BARGAIN
WITH THEM ON WAGES AND CONDITIONS ON THE SHIP.  THIS DEMAND WAS
REFUSED.  WHILE CLAIM WAS MADE THAT FILTHY CONDITIONS EXISTED ABOARD
AND CONTAMINATED FOOD WAS SERVED, THE COURT, AFTER HEARING EVIDENCE AND
PERSONALLY INSPECTING THE VESSEL, FOUND TO THE CONTRARY.  THERE IS NO
ISSUE HERE AS TO THESE FINDINGS.    FN3  NONE OF THE CREW WERE MEMBERS
OF ANY OF THE THREE UNIONS INVOLVED IN THE INTERMITTENT PICKETING. 

FN4  A CROSS-PETITION FOR CERTIORARI WAS FILED FOR A REVIEW OF THIS
QUESTION.  THE PETITION WAS DENIED.  COMPANIA NAVIERA HIDALGO, S.A., V.
BENZ, 352 U.S. 890. 

FN5  PETITIONERS RELY ON TWO CASES TO BOLSTER THEIR ARGUMENT THAT THE
ACT APPLIES TO A FOREIGN DISPUTE SUCH AS THE ONE HERE.  WE NEED ONLY
SAY THAT THESE CASES ARE INAPPOSITE, WITHOUT, OF COURSE, INTIMATING ANY
VIEW AS TO THEIR RESULT.  FIRST PETITIONERS SEEK SUPPORT IN SAILORS'
UNION OF THE PACIFIC, AFL AND MOORE DRY DOCK CO., 92 N.L.R.B. 547
(1950).  THAT CASE, HOWEVER, WAS BROUGHT TO THE BOARD BY AN AMERICAN
EMPLOYER, THE OWNER OF THE DRYDOCK, CLAIMING THAT THE PICKETING BY AN
AMERICAN SAILORS' UNION WAS OF THE DRYDOCK AND CONSTITUTED A SECONDARY
BOYCOTT AND THEREFORE AN UNFAIR LABOR PRACTICE.  THE BOARD IN ITS
OPINION GAVE NO INDICATION THAT IT FELT THAT THE TAFT-HARTLEY ACT WAS
INTENDED TO APPLY TO A DISPUTE INVOLVING EMPLOYMENT ABOARD A FOREIGN
VESSEL.  IN FACT, IN A FORERUNNER OF THAT SAME CASE, COMPANIA MARITIMA
SANSOC LIMITADA, CASE NO. 20-RC-809, MAY 1, 1950, CCH NLRB DECISIONS,
1950-1951, PARA. 10,081, A PETITION TO REPRESENT EMPLOYEES ON A
PANAMANIAN VESSEL MANNED BY FOREIGN SEAMEN, AND OWNED BY A PANAMA
CORPORATION, THE MAJORITY OF WHOSE STOCKHOLDERS WERE CITIZENS OF
FOREIGN COUNTRIES, WAS DISMISSED ON THE GROUND THAT THE INTERNAL
ECONOMY OF A VESSEL OF FOREIGN REGISTRY AND OWNERSHIP WAS INVOLVED. 
THE BOARD THUS MADE IT CLEAR THAT IT WOULD NOT ASSUME JURISDICTION WHEN
A FOREIGN VESSEL WAS INVOLVED.  IT DID ASSUME JURISDICTION IN THE LATER
DISPUTE BECAUSE THAT DISPUTE WAS BETWEEN AN AMERICAN EMPLOYER AND AN
AMERICAN UNION. 

THE SECOND CASE ON WHICH PETITIONERS RELY IS NORRIS GRAIN CO. V.
SEAFARERS' INTERNATIONAL UNION, 232 MINN. 91, 46 N.W.2D 94 (1950). 
THERE A SUIT FOR AN INJUNCTION WAS BROUGHT BY THE AMERICAN OWNER OF A
GRAIN ELEVATOR IN DULUTH, MINN., CHARGING AN AMERICAN UNION AND ITS
AFFILIATE WITH A SECONDARY BOYCOTT BY PICKETING, NOT OF A FOREIGN
VESSEL, BUT OF THE GRAIN ELEVATOR.  THOUGH A CANADIAN UNION (AFFILIATED
WITH THE AMERICAN UNION) WAS JOINED AS A DEFENDANT, THE ACTION RAN
BETWEEN AN AMERICAN PLAINTIFF-EMPLOYER AND AN AMERICAN DEFENDANT
UNION.  THERE WAS NO CLAIM BY THE FOREIGN VESSEL OWNER AGAINST A
UNION. 

FN6  1 U.S. FOREIGN REL.:  1928 AT 830-838 (DEPT. STATE 1942); ID.:
1929 AT 1005-1009 (DEPT. STATE 1943); ID.:  1931 AT 808-814 (DEPT.
STATE 1946); ID.:  1932 AT 959-960 (DEPT.  STATE 1948). 

FN7  AS FAR BACK AS 1856 THIS COURT WAS FACED WITH A RELATED
PROBLEM.  IN BROWN V. DUCHESNE, 19 HOW.  183 (1857), IN CONSTRUING OUR
PATENT LAWS WHICH WERE SILENT AS TO THEIR COVERAGE OF FOREIGN SHIPS IN
OUR PORTS, THE COURT HELD THAT CONGRESS HAD EXPRESSED NO INTENTION OF
SUBJECTING THE USE OF IMPROVEMENTS ON FOREIGN VESSELS STOPPING AT OUR
PORTS TO OUR PATENT LAWS.  IN THIS IN THIS REGARD THE COURT SAID:  "WE
THINK THESE LAWS OUGHT TO BE CONSTRUED IN THE SPIRIT IN WHICH THEY WERE
MADE - THAT IS, AS FOUNDED IN JUSTICE - AND SHOULD NOT BE STRAINED BY
TECHNICAL CONSTRUCTIONS TO REACH CASES WHICH CONGRESS EVIDENTLY COULD
NOT HAVE CONTEMPLATED, WITHOUT DEPARTING FROM THE PRINCIPLE UPON WHICH
THEY WERE LEGISLATING, AND GOING FAR BEYOND THE OBJECT THEY INTENDED TO
ACCOMPLISH."  ID., AT 197. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE CASE INVOLVES A CONTEST BETWEEN AMERICAN UNIONS AND A FOREIGN
SHIP.  THE FOREIGN SHIP CAME TO PORTLAND, OREGON, TO LOAD A CARGO OF
WHEAT FOR CARRIAGE TO INDIA.  THE CREW MEMBERS WERE PAID ABOUT ONE
THIRD THE AMOUNT OF CASH WAGES THAT ARE PAID TO AMERICAN SEAMEN ON
AMERICAN VESSELS CARRYING GRAIN TO THE ORIENT.  THIS FOREIGN SHIP IS IN
COMPETITION WITH THOSE AMERICAN VESSELS. 

AMERICAN UNIONS, THEREFORE, HAVE A VITAL INTEREST IN THE WORKING
CONDITIONS AND WAGES OF THE SEAMEN ABOARD THIS FOREIGN VESSEL.  THEIR
INTEREST IS IN THE RE-EMPLOYMENT OF THE FOREIGN CREW AT BETTER WAGES
AND WORKING CONDITIONS.  AND THEY PEACEFULLY PICKETED THE FOREIGN
VESSEL TO FURTHER THAT INTEREST. 

THE JUDGMENT WE SUSTAIN TODAY IS ONE IN DAMAGES AGAINST MEMBERS OF
THE AMERICAN UNION WHO ENGAGED IN THAT PEACEFUL PICKETING.  IT IS FOR
CONDUCT PRECISELY REGULATED BY THE TAFT-HARTLEY ACT. 

IF, AS THE DISTRICT COURT FOUND, THE PURPOSE OF THE PICKETING WAS TO
PREVENT THE REPAIRING AND LOADING OF THE FOREIGN VESSEL, THE QUESTION
THEN ARISES WHETHER THE PEACEFUL PICKETING WAS NOT A SECONDARY BOYCOTT
CONDEMNED BY SEC. 303(A)(1) OF THE ACT. 

IF THE PURPOSE OF THE PEACEFUL PICKETING WAS TO FORCE THE FOREIGN
VESSELS TO BARGAIN WITH ONE OF THE AMERICAN UNIONS WITHOUT ANY OF THEM
BEING FIRST CERTIFIED AS THE REPRESENTATIVE OF THE SEAMEN, THE QUESTION
ARISES WHETHER THAT WAS NOT A VIOLATION OF SEC. 303(A)(2) OF THE ACT. 

IF EITHER SEC. 303(A)(1) OR SEC. 303(A)(2) WAS VIOLATED, THEN THE
INJURED PERSON MAY SUE IN THE FEDERAL COURTS FOR DAMAGES, AS PROVIDED
IN SEC. 303(B).  THE COURT BASES ITS DECISION THAT THE ACT IS
INAPPLICABLE ON THE CONCLUSION THAT THE UNDERLYING CONTROVERSY WAS
BETWEEN THE FOREIGN VESSEL AND ITS CREW.  IT INTIMATES, HOWEVER, THAT
THE ACT WOULD APPLY IF THIS SUIT HAD BEEN BROUGHT BY THE AMERICAN
INDEPENDENT CONTRACTORS WHOSE EMPLOYEES REFUSED TO CROSS THE PICKET
LINE, ALTHOUGH THE IDENTICAL CONDUCT BY THE AMERICAN UNIONS WERE
INVOLVED.  BUT, EVEN IF WE ASSUME ARGUENDO THAT THE FOREIGN VESSEL
WOULD NOT BE SUBJECT TO THE REGULATORY PROVISIONS OF THE ACT, IT COULD
NONETHELESS SUE UNDER SEC. 303(B) TO GET PROTECTION FROM ANY UNFAIR
LABOR PRACTICE CONDEMNED BY THE ACT.  THAT IS INDEED THE FORCE OF OUR
RULING IN TEAMSTERS UNION V. NEW YORK, N.Y. & H.R. CO., 350 U.S. 155,
160-161. 

THE LABOR BOARD HAS ASSERTED JURISDICTION OVER UNIONS THAT BRING
THEIR PRESSURES TO BEAR ON VESSELS OF FOREIGN REGISTRY (IN THE MATTER
OF SAILORS' UNION OF THE PACIFIC, 92 N.L.R.B. 547), AT THE SAME TIME
THAT IT HAS DECLINED TO ASSUME JURISDICTION OVER THE FOREIGN VESSEL. 
(FN1)  ID., AT 560-561. 

IF THERE IS TO BE PEACE ALONG THE WATERFRONT AND A FULL AND FREE FLOW
OF COMMERCE AS DECLARED IN SEC. 1 OF THE ACT, THESE AMERICAN UNIONS
SHOULD BE SUBJECT ONLY TO DISCIPLINARY ACTION BY THE FEDERAL AGENCIES
TO WHOM CONGRESS HAS ENTRUSTED THE JOB OF LAW ENFORCEMENT.  (FN2)  ONLY
BY APPLYING THOSE CENTRALIZED CONTROLS CAN WE AVOID THE "DIVERSITIES
AND CONFLICTS LIKELY TO RESULT FROM A VARIETY OF LOCAL PROCEDURES AND
ATTITUDES TOWARD LABOR CONTROVERSIES."  GARNER V. TEAMSTERS UNION, 346
U.S. 485, 490. 

THERE IS NO HIATUS IN THE FEDERAL REGULATORY SCHEME AS WAS TRUE IN
UNITED WORKERS V. LABURNUM CORP., 347 U.S. 656.  THE FACTS ALLEGED IN
THE COMPLAINT, IF TRUE, MIGHT CONSTITUTE UNFAIR LABOR PRACTICES UNDER
THE ACT; AND CONGRESS HAS PROVIDED, AS AGAINST AMERICAN UNIONS, BOTH AN
ADMINISTRATIVE REMEDY AND A REMEDY BY WAY OF DAMAGES.  I SEE NO ANSWER
THEREFORE TO THE CONCLUSION THAT STATE LAW HAS BEEN PRE-EMPTED BY
FEDERAL LAW WITHIN THE MEANING OF OUR DECISION IN WEBER V. ANHEUSER
BUSCH, INC., 348 U.S. 468. 

IF AMERICAN UNIONS OR THEIR MEMBERS ARE TO BE MULCTED IN DAMAGES FOR
UNFAIR LABOR PRACTICES AFFECTING COMMERCE, CONGRESS HAS PROVIDED THE
WAY IN WHICH IT SHALL BE DONE. 

FN1  THE SAILORS' UNION OF THE PACIFIC PICKETED THE MAIN GATE OF A
SAN FRANCISCO SHIPYARD, WHERE A SHIP OF FOREIGN REGISTRY AND OWNERSHIP
WAS UNDERGOING REPAIRS, AFTER THE OWNER OF THE VESSEL REFUSED TO
RECOGNIZE THE UNION AS EXCLUSIVE REPRESENTATIVE OF THE CREW.  AFTER THE
PICKETING BEGAN, THE UNION FILED, WITH THE BOARD'S REGIONAL OFFICE, A
PETITION TO BE CERTIFIED AS THE REPRESENTATIVE OF THE VESSEL'S CREW. 
AS NOTED BY THE COURT, THE BOARD'S REGIONAL DIRECTOR ADMINISTRATIVELY
DISMISSED THE PETITION, "INASMUCH AS THE INTERNAL ECONOMY OF A VESSEL
OF FOREIGN REGISTRY AND OWNERSHIP IN INVOLVED."  THE BOARD SUSTAINED
THE REGIONAL DIRECTOR'S ACTION ON THE GROUND THAT IT HAD NO
JURISDICTION OVER THE FOREIGN OWNER OF THE VESSEL.  THE BOARD, HOWEVER,
ASSUMED JURISDICTION OVER AN UNFAIR LABOR PRACTICE COMPLAINT, ISSUED
AGAINST THE UNION BY THE SAME REGIONAL DIRECTOR, CHARGING THAT THE
PICKETING VIOLATED SEC. 8(B)(4)(A) OF THE ACT. 

FN2  THAT WAS THE CONCLUSION OF THE MINNESOTA SUPREME COURT IN A
SITUATION SIMILAR TO THIS ONE.  AN AMERICAN UNION AND A CANADIAN UNION
PICKETED THE DOCK OF AN AMERICAN GRAIN COMPANY TO PREVENT THE LOADING
AND UNLOADING OF VESSELS OWNED BY A CANADIAN COMPANY, WHICH HAD SERVED
NOTICE THAT IT WOULD CEASE TO RECOGNIZE THE CANADIAN UNION AS
BARGAINING REPRESENTATIVE FOR ITS CREWS.  IN A SUIT BY THE GRAIN
COMPANY AGAINST BOTH UNIONS, THE MINNESOTA SUPREME COURT CONCLUDED THAT
THE STATE COURTS HAD NO JURISDICTION OVER THE DISPUTE WHICH WAS
GOVERNED BY THE FEDERAL ACT.  "THIS ACTION IS DIRECTED NOT AGAINST THE
RELATIONSHIP BETWEEN THE CANADIAN COMPANY AND ITS EMPLOYES OR ITS
RELATIONSHIP WITH THE CANADIAN UNION, BUT AGAINST ACTS OF DEFENDANTS
DONE IN THE UNITED STATES, AND NEITHER SEEKS TO REGULATE THE
RELATIONSHIP BETWEEN THE CANADIAN COMPANY AND ITS EMPLOYES OR THE
CANADIAN COMPANY AND THE CANADIAN UNION."  NORRIS GRAIN CO. V.
SEAFARERS' INTERNATIONAL UNION, 232 MINN. 91, 109, 46 N.W.2D 94, 104. 
..END :











HAYNES V. UNITED STATES 353 U.S. 81 


NO. 257.  ARGUED MARCH 5, 1957 - DECIDED APRIL 1, 1957 - 233 F.2D 413,
REVERSED. 


PURSUANT TO A COMPREHENSIVE "PLAN FOR EMPLOYEES' PENSIONS, DISABILITY
BENEFITS AND DEATH BENEFITS," WHICH A CORPORATION HAD HAD IN FORCE FOR
MANY YEARS AND COPIES OF WHICH WERE FURNISHED TO EACH EMPLOYEE, THE
CORPORATION PAID ONE OF ITS EMPLOYEES $2,100 IN SICKNESS DISABILITY
BENEFITS, WHICH WAS EQUIVALENT TO HIS SALARY FOR A YEAR, DURING WHICH
TIME THE EMPLOYEE HAD BEEN SICK AND UNABLE TO WORK.  HELD:  UNDER SEC.
22(B)(5) OF THE INTERNAL REVENUE CODE OF 1939, SUCH INCOME OF THE
EMPLOYEE WAS EXEMPT FROM INCOME TAX AS AN AMOUNT RECEIVED THROUGH
"HEALTH INSURANCE."  PP. 82-86. 

(A)  BROADLY SPEAKING, "HEALTH INSURANCE" IS AN UNDERTAKING BY ONE
PERSON FOR REASONS SATISFACTORY TO HIM TO INDEMNIFY ANOTHER FOR LOSSES
CAUSED BY ILLNESS, AND THE PLAN HERE INVOLVED COMES WITHIN THIS
MEANING.  P. 83. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACTS THAT, UNDER THE
CORPORATION'S PLAN, THE EMPLOYEES PAID NO FIXED PERIODIC PREMIUMS,
THERE WAS NO DEFINITE FUND CREATED TO ASSURE PAYMENT OF DISABILITY
BENEFITS, AND THE AMOUNT AND DURATION OF THE BENEFITS VARIED WITH THE
LENGTH OF SERVICE.  PP. 83-84. 

(C)  THERE IS NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF SEC.
22(B)(5) WHICH LIMITS THE TERM "HEALTH INSURANCE" TO PARTICULAR FORMS
OF INSURANCE CONVENTIONALLY MADE AVAILABLE BY COMMERCIAL COMPANIES, NOR
DOES THERE APPEAR TO BE ANY OTHER REASON FOR SO LIMITING IT.  PP. 84
85. 

HAYNES ET UX. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1949, THE PETITIONER, GORDON P. HAYNES, BECAME SICK AND UNABLE TO
WORK WHILE EMPLOYED BY THE SOUTHERN BELL TELEPHONE AND TELEGRAPH
COMPANY.  AT THAT TIME THE COMPANY HAD IN EFFECT A COMPREHENSIVE "PLAN
FOR EMPLOYEES' PENSIONS, DISABILITY BENEFITS AND DEATH BENEFITS."  THIS
PLAN HAD BEEN IN FORCE SINCE 1913 WHEN IT WAS ADOPTED BY SOUTHERN BELL
AND OTHER COMPANIES IN THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY
SYSTEM.  A WRITTEN COPY OF THE PLAN, WHICH WAS PREPARED MUCH LIKE AN
INSURANCE POLICY, WAS GIVEN EVERY PERSON UPON HIS INITIAL EMPLOYMENT BY
THE COMPANY.  AMONG OTHER THINGS, THE PLAN PROVIDED THAT SOUTHERN BELL
"UNDERTAKES IN ACCORDANCE WITH THESE REGULATIONS, TO PROVIDE FOR THE
PAYMENT OF DEFINITE AMOUNTS TO ITS EMPLOYEES WHEN THEY ARE DISABLED BY
ACCIDENT OR SICKNESS."  UNDER THE PLAN EVERY EMPLOYEE WAS ENTITLED,
AFTER TWO YEARS' SERVICE WITH SOUTHERN BELL, TO RECEIVE "SICKNESS
DISABILITY BENEFITS" WHEN HE MISSED WORK BECAUSE OF ILLNESS.  THESE
PAYMENTS BEGAN ON THE EIGHTH CALENDAR DAY OF ABSENCE DUE TO ILLNESS. 
THE AMOUNT AND DURATION OF PAYMENTS WERE SET OUT WITH SPECIFICITY AND
VARIED WITH THE LENGTH OF SERVICE.  FOR EXAMPLE, EMPLOYEES WHO HAD
WORKED FOR SOUTHERN BELL FROM TWO TO FIVE YEARS WERE ENTITLED TO FULL
PAY FOR FOUR WEEKS AND ONE-HALF PAY FOR NINE ADDITIONAL WEEKS;
EMPLOYEES WHO HAD BEEN WITH THE COMPANY FOR MORE THAN TWENTY-FIVE YEARS
WERE ENTITLED TO FULL PAY FOR FIFTY-TWO WEEKS.  THE COMPANY RESERVED
THE RIGHT TO CHANGE OR TERMINATE THE PLAN BUT AGREED THAT NO CHANGES
WOULD BE MADE WHICH AFFECTED "THE RIGHTS OF ANY EMPLOYEE, WITHOUT HIS
CONSENT, TO ANY BENEFIT OR PENSION TO WHICH HE MAY HAVE PREVIOUSLY
BECOME ENTITLED HEREUNDER." 

UNDER THE PLAN PETITIONER WAS PAID $2,100 IN SICKNESS DISABILITY
BENEFITS DURING 1949.  SINCE HE HAD BEEN AN EMPLOYEE OF THE COMPANY FOR
MORE THAN TWENTY-FIVE YEARS THIS WAS THE FULL EQUIVALENT OF WHAT HE
WOULD HAVE RECEIVED HAD HE BEEN WORKING.  THE GOVERNMENT COLLECTED
$318.44 INCOME TAX ON PETITIONER'S SICKNESS BENEFITS.  HE BROUGHT THIS
ACTION FOR A REFUND CONTENDING THAT THESE RECEIPTS WERE NOT TAXABLE
BECAUSE OF SEC. 22(B)(5) OF THE 1939 INTERNAL REVENUE CODE WHICH
EXEMPTED FROM TAXABLE INCOME "AMOUNTS RECEIVED, THROUGH ACCIDENT OR
HEALTH INSURANCE  ...  AS COMPENSATION FOR PERSONAL INJURIES OR
SICKNESS."  (FN1)  THE DISTRICT COURT HELD THAT THE PAYMENTS RECEIVED
BY PETITIONER ON ACCOUNT OF SICKNESS WERE NOT TAXABLE AND DIRECTED A
REFUND.  THE COURT OF APPEALS REVERSED, ACCEPTING THE GOVERNMENT'S
CONTENTION THAT SOUTHERN BELL'S PLAN WAS NOT "HEALTH INSURANCE" BUT A
"WAGE CONTINUATION PLAN."  233 F.2D 413.  IN EPMEIER V. UNITED STATES,
199 F.2D 508, THE SEVENTH CIRCUIT HELD THAT DISABILITY PAYMENTS UNDER A
PLAN SIMILAR TO SOUTHERN BELL'S WERE NOT TAXABLE.  BECAUSE OF THIS
CONFLICT WE GRANTED CERTIORARI, 352 U.S. 820. 

THE CRUCIAL QUESTION IS WHETHER THE SOUTHERN BELL PLAN SHOULD BE
TREATED AS "HEALTH INSURANCE" WITHIN THE MEANING OF SEC. 22(B)(5). 
BROADLY SPEAKING, HEALTH INSURANCE IS AN UNDERTAKING BY ONE PERSON FOR
REASONS SATISFACTORY TO HIM TO INDEMNIFY ANOTHER FOR LOSSES CAUSED BY
ILLNESS.  WE BELIEVE THAT THE SOUTHERN BELL DISABILITY PLAN COMES
WITHIN THIS MEANING OF HEALTH INSURANCE. 

IF SOUTHERN BELL HAD PURCHASED FROM A COMMERCIAL INSURANCE COMPANY
HEALTH INSURANCE THAT PROVIDED ITS EMPLOYEES WITH PRECISELY THE SAME
KIND OF PROTECTION PROMISED UNDER ITS OWN PLAN, THE GOVERNMENT CONCEDES
THAT THE PAYMENTS RECEIVED BY AILING EMPLOYEES FROM THE COMMERCIAL
COMPANY WOULD NOT HAVE BEEN TAXABLE.  NEVERTHELESS IT ARGUES THAT
SOUTHERN BELL'S PLAN SHOULD NOT BE TREATED AS "HEALTH INSURANCE"
BECAUSE THE EMPLOYEES PAID NO FIXED PERIODIC PREMIUMS, THERE WAS NO
DEFINITE FUND CREATED TO ASSURE PAYMENT OF THE DISABILITY BENEFITS, AND
THE AMOUNT AND DURATION OF THE BENEFITS VARIED WITH THE LENGTH OF
SERVICE.  (FN2)  WE DO NOT BELIEVE THAT THESE FACTS REMOVE THE PLAN
FROM THE GENERAL CATEGORY OF HEALTH INSURANCE.  THE PAYMENT OF PREMIUMS
IN A FIXED AMOUNT AT REGULAR INTERVALS IS NOT A NECESSARY ELEMENT OF
INSURANCE.  SIMILARLY THERE IS NO NECESSITY FOR A DEFINITE FUND SET
ASIDE TO MEET THE INSURER'S OBLIGATIONS.  AND THE FACT THAT THE AMOUNT
AND DURATION OF BENEFITS INCREASED WITH THE LENGTH OF TIME THAT AN
EMPLOYEE WORKED FOR SOUTHERN BELL REFLECTED THE ADDED VALUE TO THE
COMPANY OF EXTRA YEARS OF EXPERIENCE AND SERVICE.  APPARENTLY THE
GOVERNMENT RELIES ON THESE FACTS PRIMARILY TO SHOW THAT SOUTHERN BELL'S
PLAN DID NOT CONTAIN FEATURES WHICH WOULD BE PRESENT IN THE NORMAL
COMMERCIAL INSURANCE CONTRACT.  THE GOVERNMENT, HOWEVER, OFFERS NO
PERSUASIVE REASON WHY THE TERM "HEALTH INSURANCE" IN SEC. 22(B)(5)
SHOULD BE LIMITED TO THE PARTICULAR FORMS OF INSURANCE CONVENTIONALLY
MADE AVAILABLE BY COMMERCIAL COMPANIES.  CERTAINLY THERE IS NOTHING IN
THE LANGUAGE OF SEC. 22(B)(5) WHICH COMPELS THIS LIMITATION. 

THERE IS NO SUPPORT IN THE LEGISLATIVE HISTORY FOR THE GOVERNMENT'S
ARGUMENT THAT CONGRESS INTENDED TO RESTRICT THE EXEMPTION PROVIDED IN
SEC. 22(B)(5) TO "CONVENTIONAL MODES OF INSURANCE" AND NOT TO INCLUDE
EMPLOYER DISABILITY PLANS.  FOR REASONS DEEMED SATISFACTORY, CONGRESS,
SINCE 1918, HAS CHOSEN NOT TO TAX RECEIPTS FROM HEALTH AND ACCIDENT
INSURANCE CONTRACTS.  (FN3)  THE LANGUAGE OF SEC. 22(B)(5) APPEARED IN
THE REVENUE ACT OF 1918 AND HAS REAPPEARED WITHOUT RELEVANT CHANGE IN
ALL SUCCEEDING REVENUE ACTS UP TO 1954.  (FN4)  THE TERM "HEALTH
INSURANCE" WAS NOT DEFINED IN ANY OF THESE ACTS OR IN ANY OF THE
COMMITTEE REPORTS.  THERE HAS BEEN NO UNIFORM ADMINISTRATIVE PRACTICE
WHICH CAN BE DRAWN UPON TO SUPPORT THE NARROW MEANING OF SEC. 22(B)(5)
NOW URGED BY THE GOVERNMENT.  ADMINISTRATIVE RULINGS SINCE 1918 APPEAR
TO HAVE REGULARLY VACILLATED BETWEEN HOLDING RECEIPTS UNDER COMPANY
DISABILITY PLANS TAXABLE AND HOLDING THAT THEY ARE NOT TAXABLE.  (FN5)
UNDER THESE CIRCUMSTANCES WE SEE NO REASON WHY THE TERM "HEALTH
INSURANCE" IN SEC. 22(B)(5) SHOULD NOT BE GIVEN ITS BROAD GENERAL
MEANING.  SEE HELVERING V. LE GIERSE, 312 U.S. 531. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF
THE DISTRICT COURT WHICH HELD THAT PETITIONER WAS ENTITLED TO A REFUND
IS AFFIRMED.  IT IS SO ORDERED. 

FN1  26 U.S.C. (1952 ED.)  SEC.  22(B)(5). 

FN2  THE GOVERNMENT POINTS TO SEVERAL OTHER ASPECTS OF THE SOUTHERN
BELL PLAN AS DEMONSTRATING THAT IT IS NOT "HEALTH INSURANCE."  AFTER
CONSIDERATION OF THE GOVERNMENT'S CONTENTIONS IN THIS RESPECT WE FIND
THEY ARE WITHOUT MERIT. 

FN3  IN EPMEIER V. UNITED STATES, 199 F.2D 508, 511, THE SEVENTH
CIRCUIT WAS OF THE OPINION THAT: "THE PROVISIONS OF SECTION 22(B)(5)
UNDOUBTEDLY WERE INTENDED TO RELIEVE A TAXPAYER WHO HAS THE MISFORTUNE
TO BECOME ILL OR INJURED, OF THE NECESSITY OF PAYING INCOME TAX UPON
INSURANCE BENEFITS RECEIVED TO COMBAT THE RAVAGES OF DISEASE OR
ACCIDENT." 

FN4  SECTION 22(B)(5) CAN BE TRACED TO SEC. 213(B)(6) OF THE REVENUE
ACT OF 1918, 40 STAT. 1066.  IN SECS. 104, 105 AND 106 OF THE 1954
INTERNAL REVENUE CODE, 26 U.S.C.  (SUPP. III) SECS. 104-106, CONGRESS
AGAIN EXEMPTED AMOUNTS RECEIVED THROUGH HEALTH INSURANCE.  HOWEVER
THESE NEW PROVISIONS LIMITED THE EXCLUSION FOR RECEIPTS SIMILAR TO
THOSE INVOLVED HERE TO A MAXIMUM OF $100 PER WEEK.  WE DO NOT ACCEPT
THE GOVERNMENT'S CONTENTION THAT THE ENACTMENT OF SECS. 104-106 SHOWS
THAT CONGRESS IN 1918, AND IN SUCCEEDING REVENUE MEASURES, INTENDED TO
DISTINGUISH BETWEEN CONVENTIONAL COMMERCIAL INSURANCE AND AN EMPLOYER'S
PLAN LIKE THAT OF SOUTHERN BELL'S. 

FN5  T.D. 2747, 20 TREAS. DEC. INT. REV. 457 (1918); G.C.M. 23511,
CUM. BULL.  86 (1943); I.T. 4000, 1 CUM. BULL.  21 (1950); I.T. 4015, 1
CUM. BULL.  23 (1950); I.T. 4107, 2 CUM.  BULL.  73 (1952); REV. RUL.
208, 1953-2 CUM. BULL.  102.  FOR A DISCUSSION OF THE DIFFICULTIES OF
THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY'S SYSTEM BECAUSE OF THE
SHIFTING ADMINISTRATIVE PRACTICE SEE HEARINGS BEFORE HOUSE COMMITTEE ON
WAYS AND MEANS ON FORTY TOPICS PERTAINING TO THE GENERAL REVISION OF
THE INTERNAL REVENUE CODE, 83D CONG., 1ST SESS. 363. 

MR. JUSTICE BURTON AND MR. JUSTICE HARLAN DISSENT FOR THE REASONS
STATED IN THE OPINION OF THE COURT OF APPEALS, 233 F.2D 413.  SEE ALSO
MOHOLY V. UNITED STATES, 235 F.2D 562; I.R.C., 1954, SECS. 104-106, AND
THE ACCOMPANYING REPORT, H.R. REP. NO. 1337, 83D CONG., 2D SESS. 15,
A32-A35. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :




NATIONAL LABOR RELATIONS BOARD V. TRUCK DRIVERS LOCAL UNION NO. 449,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, A.F.L. 353 U.S. 87 


NO. 103.  ARGUED JANUARY 17, 22, 1957 - DECIDED APRIL 1, 1957 - 231 F.2D
110, REVERSED. 


A GROUP OF EMPLOYERS HAD FORMED A MULTI-EMPLOYER ASSOCIATION TO
BARGAIN JOINTLY WITH A SINGLE UNION WHICH REPRESENTED THEIR EMPLOYEES. 
DURING CONTRACT NEGOTIATIONS BETWEEN THE UNION AND THE ASSOCIATION, THE
UNION STRUCK AND PICKETED THE PLANT OF ONE OF THE EMPLOYERS BELONGING
TO THE ASSOCIATION.  THEREUPON THE OTHER MEMBERS OF THE EMPLOYERS'
ASSOCIATION, AS A DEFENSE TO THE STRIKE AGAINST ONE OF THEIR MEMBERS
WHICH IMPERILED THE EMPLOYERS' COMMON INTEREST IN BARGAINING ON A GROUP
BASIS, CLOSED THEIR PLANTS AND LOCKED OUT THEIR EMPLOYEES UNTIL THE
STRIKE WAS TERMINATED.  HELD: IN THE CIRCUMSTANCES OF THIS CASE, THE
NATIONAL LABOR RELATIONS BOARD PROPERLY FOUND THAT SUCH ACTION BY THE
NON-STRUCK MEMBERS OF THE EMPLOYERS' ASSOCIATION DID NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SECS. 8(A)(1) AND (3) OF
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED.  PP. 89-97. 

(A)  ALTHOUGH THERE IS NO EXPRESS PROVISION OF THE ACT EITHER
PROHIBITING OR AUTHORIZING A LOCKOUT, THE ACT DOES NOT MAKE A LOCKOUT
UNLAWFUL PER SE; AND THE LEGISLATIVE HISTORY OF THE WAGNER ACT
INDICATES THAT THERE WAS NO INTENT TO PROHIBIT LOCKOUTS AS SUCH.  P.
92. 

(B)  THE UNQUALIFIED USE OF THE TERM "LOCK-OUT" IN SEVERAL SECTIONS
OF THE TAFT-HARTLEY ACT IS A STATUTORY RECOGNITION THAT THERE ARE
CIRCUMSTANCES IN WHICH EMPLOYERS MAY LAWFULLY RESORT TO A LOCKOUT AS AN
ECONOMIC WEAPON, AND THIS CONCLUSION IS SUPPORTED BY THE LEGISLATIVE
HISTORY OF THE ACT.  PP. 92-93. 

(C)  A TEMPORARY LOCKOUT MAY LAWFULLY BE USED AS A DEFENSE TO A UNION
STRIKE TACTIC WHICH THREATENS THE DESTRUCTION OF THE EMPLOYERS'
INTEREST IN BARGAINING ON A GROUP BASIS.  PP.  93-96. 

(D)  THE HISTORY OF THE TAFT-HARTLEY ACT COMPELS THE CONCLUSION THAT
CONGRESS INTENDED THAT THE NATIONAL LABOR RELATIONS BOARD SHOULD
CONTINUE ITS ESTABLISHED ADMINISTRATIVE PRACTICE OF CERTIFYING MULTI
EMPLOYER GROUPS AND INTENDED TO LEAVE TO THE BOARD'S SPECIALIZED
JUDGMENT THE INEVITABLE QUESTIONS CONCERNING MULTI-EMPLOYER BARGAINING
BOUND TO ARISE IN THE FUTURE.  PP. 94-96. 

(E)  ALTHOUGH THE ACT PROTECTS THE RIGHT OF THE EMPLOYEES TO STRIKE
IN SUPPORT OF THEIR DEMANDS, THIS PROTECTION IS NOT SO ABSOLUTE AS TO
DENY SELF-HELP BY EMPLOYERS WHEN LEGITIMATE INTERESTS OF EMPLOYEES AND
EMPLOYER COLLIDE.  P. 96. 

(F)  THE FUNCTION OF BALANCING CONFLICTING LEGITIMATE INTERESTS SO AS
TO EFFECTUATE NATIONAL LABOR POLICY IS OFTEN A DIFFICULT AND DELICATE
RESPONSIBILITY, WHICH CONGRESS COMMITTED PRIMARILY TO THE NATIONAL
LABOR RELATIONS BOARD, SUBJECT TO LIMITED JUDICIAL REVIEW.  P. 96. 

(G)  THE EXERCISE OF DISCRETION BY THE BOARD IN PERMITTING LOCKOUTS
IS NOT TO BE NARROWLY CONFINED TO CASES OF ECONOMIC HARDSHIP.  P. 97. 

(H)  IN THE CIRCUMSTANCES OF THIS CASE, THE BOARD CORRECTLY BALANCED
THE CONFLICTING INTERESTS IN DECIDING THAT A TEMPORARY LOCKOUT TO
PRESERVE THE MULTI-EMPLOYER BARGAINING BASIS FROM THE DISINTEGRATION
THREATENED BY THE UNION'S STRIKE ACTION WAS LAWFUL.  P. 97. 

NATIONAL LABOR RELATIONS BOARD V. TRUCK DRIVERS LOCAL UNION NO. 449,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, A.F.L. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE NON-STRUCK MEMBERS
OF A MULTI-EMPLOYER BARGAINING ASSOCIATION COMMITTED AN UNFAIR LABOR
PRACTICE WHEN, DURING CONTRACT NEGOTIATIONS, THEY TEMPORARILY LOCKED
OUT THEIR EMPLOYEES AS A DEFENSE TO A UNION STRIKE AGAINST ONE OF THEIR
MEMBERS WHICH IMPERILED THE EMPLOYERS' COMMON INTEREST IN BARGAINING ON
A GROUP BASIS. 

THE NATIONAL LABOR RELATIONS BOARD DETERMINED THAT RESORT TO THE
TEMPORARY LOCKOUT WAS NOT AN UNFAIR LABOR PRACTICE IN THE
CIRCUMSTANCES.  (FN1)  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
REVERSED.  (FN2)  THIS COURT GRANTED CERTIORARI (FN3) TO CONSIDER THIS
IMPORTANT QUESTION OF THE CONSTRUCTION OF THE AMENDED NATIONAL LABOR
RELATIONS ACT, (FN4) AND ALSO TO CONSIDER AN ALLEGED CONFLICT WITH
DECISIONS OF COURTS OF APPEALS OF OTHER CIRCUITS.  (FN5) 

EIGHT EMPLOYERS IN THE LINEN SUPPLY BUSINESS IN AND AROUND BUFFALO,
NEW YORK, COMPRISE THE MEMBERSHIP OF THE LINEN AND CREDIT EXCHANGE. 
FOR APPROXIMATELY 13 YEARS, THE EXCHANGE AND THE RESPONDENT UNION,
REPRESENTING THE TRUCK DRIVERS EMPLOYED BY THE MEMBERS, BARGAINED ON A
MULTI-EMPLOYER BASIS AND NEGOTIATED SUCCESSIVE COLLECTIVE BARGAINING
AGREEMENTS SIGNED BY THE UNION AND BY THE EIGHT EMPLOYERS.  SIXTY DAYS
BEFORE SUCH AN AGREEMENT WAS TO EXPIRE ON APRIL 30, 1953, THE UNION
GAVE NOTICE OF ITS DESIRE TO OPEN NEGOTIATIONS FOR CHANGES.  (FN6) 

THE EXCHANGE AND THE UNION BEGAN NEGOTIATIONS SOME TIME BEFORE APRIL
30, BUT THE NEGOTIATIONS CARRIED PAST THAT DATE AND WERE CONTINUING ON
MAY 26, 1953, WHEN THE UNION PUT INTO EFFECT A "WHIPSAWING" PLAN (FN7)
BY STRIKING AND PICKETING THE PLANT OF ONE OF THE EXCHANGE MEMBERS,
FRONTIER LINEN SUPPLY, INC. THE NEXT DAY, MAY 27, THE REMAINING SEVEN
EXCHANGE MEMBERS LAID OFF THEIR TRUCK DRIVERS AFTER NOTIFYING THE UNION
THAT THE LAYOFF ACTION WAS TAKEN BECAUSE OF THE FRONTIER STRIKE,
ADVISING THE UNION THAT THE LAID-OFF DRIVERS WOULD BE RECALLED IF THE
UNION WITHDREW ITS PICKET LINE AND ENDED THE STRIKE.  NEGOTIATIONS
CONTINUED WITHOUT INTERRUPTION, HOWEVER, UNTIL A WEEK LATER WHEN
AGREEMENT WAS REACHED UPON A NEW CONTRACT WHICH THE EXCHANGE MEMBERS
AND THE UNION APPROVED AND SIGNED.  THEREUPON THE FRONTIER STRIKE WAS
ENDED, THE LAID-OFF DRIVERS WERE RECALLED, AND NORMAL OPERATIONS WERE
RESUMED AT THE PLANTS OF ALL EXCHANGE MEMBERS. 

THE UNION FILED WITH THE NATIONAL LABOR RELATIONS BOARD AN UNFAIR
LABOR PRACTICE CHARGE AGAINST THE SEVEN EMPLOYERS, ALLEGING THAT THE
TEMPORARY LOCKOUT INTERFERED WITH ITS RIGHTS GUARANTEED BY SEC. 7,
THEREBY VIOLATING SECS. 8(A)(1) AND (3) OF THE ACT.  (FN8)  A COMPLAINT
ISSUED, AND, AFTER HEARING, A TRIAL EXAMINER FOUND THE EMPLOYERS GUILTY
OF THE UNFAIR LABOR PRACTICE CHARGED.  THE BOARD OVERRULED THE TRIAL
EXAMINER, FINDING THAT "THE MORE REASONABLE INFERENCE IS THAT, ALTHOUGH
NOT SPECIFICALLY ANNOUNCED BY THE UNION, THE STRIKE AGAINST THE ONE
EMPLOYER NECESSARILY CARRIED WITH IT AN IMPLICIT THREAT OF FUTURE
STRIKE ACTION AGAINST ANY OR ALL OF THE OTHER MEMBERS OF THE
ASSOCIATION," WITH THE "CALCULATED PURPOSE" OF CAUSING "SUCCESSIVE AND
INDIVIDUAL EMPLOYER CAPITULATIONS."  (FN9)  THE BOARD THEREFORE FOUND
THAT "IN THE ABSENCE OF ANY INDEPENDENT EVIDENCE OF ANTIUNION
MOTIVATION,  ...  THE RESPONDENTS' ACTION IN SHUTTING THEIR PLANTS
UNTIL TERMINATION OF THE STRIKE AT FRONTIER WAS DEFENSIVE AND
PRIVILEGED IN NATURE, RATHER THAN RETALIATORY AND UNLAWFUL."  (FN10)
THE BOARD, CITING LEONARD V. LABOR BOARD, 205 F.2D 355, CONCLUDED "THAT
A STRIKE BY EMPLOYEES AGAINST ONE EMPLOYER-MEMBER OF A MULTIEMPLOYER
BARGAINING UNIT CONSTITUTES A THREAT OF STRIKE ACTION AGAINST THE OTHER
EMPLOYERS, WHICH THREAT, PER SE, CONSTITUTES THE TYPE OF ECONOMIC OR
OPERATIVE PROBLEM AT THE PLANTS OF THE NONSTRUCK EMPLOYERS WHICH
LEGALLY JUSTIFIES THEIR RESORT TO A TEMPORARY LOCKOUT OF EMPLOYEES." 
(FN11) 

THE COURT OF APPEALS AGREED "THAT THE BOARD REASONABLY INFERRED" A
THREAT OF STRIKE ACTION AGAINST THE SEVEN EMPLOYERS BECAUSE THERE WERE
"NO PECULIAR FACTS CONCERNING THE UNION'S RELATIONS WITH THAT SINGLE
MEMBER."  (FN12)  THE COURT OF APPEALS THUS IMPLICITLY FOUND THAT THE
ONLY REASON FOR THE STRIKE AGAINST FRONTIER WAS THE REFUSAL OF THE
EXCHANGE TO MEET THE UNION'S DEMANDS.  BUT THE COURT HELD THAT A
TEMPORARY LOCKOUT OF EMPLOYEES ON A "MERE THREAT OF, OR IN ANTICIPATION
OF, A STRIKE" (FN13) COULD BE JUSTIFIED ONLY IF THERE WERE UNUSUAL
ECONOMIC HARDSHIP, AND BECAUSE "THE STIPULATED FACTS SHOW NO ECONOMIC
JUSTIFICATION FOR THE LOCKOUT,  ...  THE LOCKOUT OF NON-STRIKING
EMPLOYEES CONSTITUTED AN INTERFERENCE WITH THEIR STATUTORY RIGHT TO
ENGAGE IN CONCERTED ACTIVITY IN VIOLATION OF SEC. 8(A)(1) OF THE ACT,
AND ALSO CONSTITUTED DISCRIMINATION IN THE HIRE AND TENURE OF
EMPLOYMENT OF THE EMPLOYEES BECAUSE OF THE UNION'S ACTION, THEREBY
DISCOURAGING MEMBERSHIP IN THE UNION IN VIOLATION OF SEC. 8(A)(3) OF
THE ACT."  (FN14) 

ALTHOUGH, AS THE COURT OF APPEALS CORRECTLY NOTED, THERE IS NO
EXPRESS PROVISION IN THE LAW EITHER PROHIBITING OR AUTHORIZING THE
LOCKOUT, THE ACT DOES NOT MAKE THE LOCKOUT UNLAWFUL PER SE. LEGISLATIVE
HISTORY OF THE WAGNER ACT, 49 STAT. 449, INDICATES THAT THERE WAS NO
INTENT TO PROHIBIT STRIKES OR LOCKOUTS AS SUCH.  (FN15)  THE
UNQUALIFIED USE OF THE TERM "LOCK-OUT" IN SEVERAL SECTIONS OF THE TAFT
HARTLEY ACT (FN16) IS STATUTORY RECOGNITION THAT THERE ARE
CIRCUMSTANCES IN WHICH EMPLOYERS MAY LAWFULLY RESORT TO THE LOCKOUT AS
AN ECONOMIC WEAPON.  THIS CONCLUSION IS SUPPORTED BY THE LEGISLATIVE
HISTORY OF THE ACT.  (FN17) 

WE ARE NOT CONCERNED HERE WITH THE CASES IN WHICH THE LOCKOUT HAS
BEEN HELD UNLAWFUL BECAUSE DESIGNED TO FRUSTRATE ORGANIZATIONAL
EFFORTS, TO DESTROY OR UNDERMINE BARGAINING REPRESENTATION, OR TO EVADE
THE DUTY TO BARGAIN.  (FN18)  NOR ARE WE CALLED UPON TO DEFINE THE
LIMITS OF THE LEGITIMATE USE OF THE LOCKOUT.  (FN19)  THE NARROW
QUESTION TO BE DECIDED IS WHETHER A TEMPORARY LOCKOUT MAY LAWFULLY BE
USED AS A DEFENSE TO A UNION STRIKE TACTIC WHICH THREATENS THE
DESTRUCTION OF THE EMPLOYERS' INTEREST IN BARGAINING ON A GROUP BASIS. 

THE COURT OF APPEALS REJECTED THE PRESERVATION OF THE INTEGRITY OF
THE MULTI-EMPLOYER BARGAINING UNIT AS A JUSTIFICATION FOR AN EMPLOYER
LOCKOUT.  (FN20)  THE COURT FOUNDED THIS CONCLUSION UPON ITS
INTERPRETATION OF THE TAFT-HARTLEY ACT AND ITS LEGISLATIVE HISTORY. 
AFTER STATING THAT "MULTI-EMPLOYER BARGAINING HAS NEVER RECEIVED THE
EXPRESS SANCTION OF CONGRESS," THE COURT REASONED THAT BECAUSE AT THE
TIME OF THE ENACTMENT OF THE TAFT-HARTLEY ACT THE BOARD HAD NEVER "GONE
TO THE EXTREME LENGTHS TO WHICH IT NOW SEEKS TO GO IN ORDER TO MAINTAIN
THE 'STABILITY OF THE EMPLOYER UNIT,'" CONGRESS CANNOT BE SAID TO HAVE
GIVEN LEGISLATIVE APPROVAL TO THE PRESENT BOARD ACTION.  (FN21)  THE
COURT CONCLUDED THAT "CONGRESS MUST HAVE INTENDED THAT SUCH A RADICAL
INNOVATION BE LEFT OPEN FOR CONSIDERATION BY THE JOINT COMMITTEE IT SET
UP UNDER SEC. 402 OF THE ACT TO STUDY, AMONG OTHER THINGS, 'THE METHODS
AND PROCEDURES FOR BEST CARRYING OUT THE COLLECTIVE-BARGAINING
PROCESSES, WITH SPECIAL ATTENTION TO THE EFFECTS OF INDUSTRY-WIDE OR
REGIONAL BARGAINING UPON THE NATIONAL ECONOMY.'"  (FN22) 

WE CANNOT SUBSCRIBE TO THIS INTERPRETATION.  MULTI-EMPLOYER
BARGAINING LONG ANTEDATED THE WAGNER ACT, BOTH IN INDUSTRIES LIKE THE
GARMENT INDUSTRY, CHARACTERIZED BY NUMEROUS EMPLOYERS OF SMALL WORK
FORCES, AND IN INDUSTRIES LIKE LONGSHORING AND BUILDING CONSTRUCTION,
WHERE WORKERS CHANGE EMPLOYERS FROM DAY TO DAY OR WEEK TO WEEK.  THIS
BASIS OF BARGAINING HAS HAD ITS GREATEST EXPANSION SINCE ENACTMENT OF
THE WAGNER ACT BECAUSE EMPLOYERS HAVE SOUGHT THROUGH GROUP BARGAINING
TO MATCH INCREASED UNION STRENGTH.  (FN23)  APPROXIMATELY FOUR MILLION
EMPLOYEES ARE NOW GOVERNED BY COLLECTIVE BARGAINING AGREEMENTS SIGNED
BY UNIONS WITH THOUSANDS OF EMPLOYER ASSOCIATIONS.  (FN24) AT THE TIME
OF THE DEBATES ON THE TAFT-HARTLEY AMENDMENTS, PROPOSALS WERE MADE TO
LIMIT OR OUTLAW MULTI-EMPLOYER BARGAINING.  THESE PROPOSALS FAILED OF
ENACTMENT.  THEY WERE MET WITH A STORM OF PROTEST THAT THEIR ADOPTION
WOULD TEND TO WEAKEN AND NOT STRENGTHEN THE PROCESS OF COLLECTIVE
BARGAINING AND WOULD CONFLICT WITH THE NATIONAL LABOR POLICY OF
PROMOTING INDUSTRIAL PEACE THROUGH EFFECTIVE COLLECTIVE BARGAINING. 
(FN25) 

THE DEBATES OVER THE PROPOSALS DEMONSTRATE THAT CONGRESS REFUSED TO
INTERFERE WITH SUCH BARGAINING BECAUSE THERE WAS COGENT EVIDENCE THAT
IN MANY INDUSTRIES THE MULTI-EMPLOYER BARGAINING BASIS WAS A VITAL
FACTOR IN THE EFFECTUATION OF THE NATIONAL POLICY OF PROMOTING LABOR
PEACE THROUGH STRENGTHENED COLLECTIVE BARGAINING.  THE INACTION OF
CONGRESS WITH RESPECT TO MULTI-EMPLOYER BARGAINING CANNOT BE SAID TO
INDICATE AN INTENTION TO LEAVE THE RESOLUTION OF THIS PROBLEM TO FUTURE
LEGISLATION.  RATHER, THE COMPELLING CONCLUSION IS THAT CONGRESS
INTENDED "THAT THE BOARD SHOULD CONTINUE ITS ESTABLISHED ADMINISTRATIVE
PRACTICE OF CERTIFYING MULTI-EMPLOYER UNITS, AND INTENDED TO LEAVE TO
THE BOARD'S SPECIALIZED JUDGMENT THE INEVITABLE QUESTIONS CONCERNING
MULTI-EMPLOYER BARGAINING BOUND TO ARISE IN THE FUTURE."  (FN26) 

ALTHOUGH THE ACT PROTECTS THE RIGHT OF THE EMPLOYEES TO STRIKE IN
SUPPORT OF THEIR DEMANDS, THIS PROTECTION IS NOT SO ABSOLUTE AS TO DENY
SELF-HELP BY EMPLOYERS WHEN LEGITIMATE INTERESTS OF EMPLOYEES AND
EMPLOYERS COLLIDE.  (FN27)  CONFLICT MAY ARISE, FOR EXAMPLE, BETWEEN
THE RIGHT TO STRIKE AND THE INTEREST OF SMALL EMPLOYERS IN PRESERVING
MULTI-EMPLOYER BARGAINING AS A MEANS OF BARGAINING ON AN EQUAL BASIS
WITH A LARGE UNION AND AVOIDING THE COMPETITIVE DISADVANTAGES RESULTING
FROM NONUNIFORM CONTRACTUAL TERMS.  THE ULTIMATE PROBLEM IS THE
BALANCING OF THE CONFLICTING LEGITIMATE INTERESTS.  THE FUNCTION OF
STRIKING THAT BALANCE TO EFFECTUATE NATIONAL LABOR POLICY IS OFTEN A
DIFFICULT AND DELICATE RESPONSIBILITY, WHICH THE CONGRESS COMMITTED
PRIMARILY TO THE NATIONAL LABOR RELATIONS BOARD, SUBJECT TO LIMITED
JUDICIAL REVIEW.  (FN28) 

THE COURT OF APPEALS RECOGNIZED THAT THE NATIONAL LABOR RELATIONS
BOARD HAS LEGITIMATELY BALANCED CONFLICTING INTERESTS BY PERMITTING
LOCKOUTS WHERE ECONOMIC HARDSHIP WAS SHOWN.  (FN29)  THE COURT ERRED,
HOWEVER, IN TOO NARROWLY CONFINING THE EXERCISE OF BOARD DISCRETION TO
THE CASES OF ECONOMIC HARDSHIP.  WE HOLD THAT IN THE CIRCUMSTANCES OF
THIS CASE THE BOARD CORRECTLY BALANCED THE CONFLICTING INTERESTS IN
DECIDING THAT A TEMPORARY LOCKOUT TO PRESERVE THE MULTI-EMPLOYER
BARGAINING BASIS FROM THE DISINTEGRATION THREATENED BY THE UNION'S
STRIKE ACTION WAS LAWFUL.  REVERSED. 

FN1  109 N.L.R.B. 447. 

FN2  231 F.2D 110. 

FN3  352 U.S. 818. 

FN4  61 STAT. 136, 29 U.S.C. SEC. 141 ET SEQ. 

FN5  LABOR BOARD V. CONTINENTAL BAKING CO., 221 F.2D 427 (C.A. 8TH
CIR.); LABOR BOARD V. SPALDING AVERY LUMBER CO., 220 F.2D 673 (C.A. 8TH
CIR.); LEONARD V. LABOR BOARD, 197 F.2D 435, 205 F.2D 355 (C.A. 9TH
CIR.); MORAND BROS. BEVERAGE CO. V. LABOR BOARD, 190 F.2D 576 (C.A. 7TH
CIR.). 

FN6  THE CONTRACT CONTAINED AN AUTOMATIC RENEWAL CLAUSE REQUIRING
NOTICE OF A DESIRE TO CHANGE THE CONTRACT TO BE GIVEN 60 DAYS BEFORE
THE EXPIRATION DATE.  THE NOTICE WAS ALSO IN CONFORMITY WITH SEC. 8(D)
OF THE ACT.  61 STAT. 140, 29 U.S.C. SEC. 158. 

FN7  "WHIPSAWING" IS THE PROCESS OF STRIKING ONE AT A TIME THE
EMPLOYER MEMBERS OF A MULTI-EMPLOYER ASSOCIATION. 

FN8  SECTION 7 PROVIDES IN PERTINENT PART: 

"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  ...  ."  61 STAT. 140, 29 U.S.C. SEC. 157. 


"(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 7. 

     *         *         *         *         * 

"(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  ...  ."  61 STAT. 140, 29 U.S.C.
SEC. 158. 

FN9  109 N.L.R.B., AT 448. 

FN10  109 N.L.R.B., AT 448.  THE BOARD RELIED UPON THE DECISION OF
THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN LEONARD V. LABOR BOARD,
205 F.2D 355, 357-358, WHEREIN THE COURT STATED:  "  ... THE RIGHT OF
THE EMPLOYERS TO LOCK OUT TEMPORARILY ALL THE EMPLOYEES IS NO MORE THAN
EQUAL TO THE RIGHT OF THE UNION OF ALL THE EMPLOYEES TO CALL OUT THE
EMPLOYEES OF ONE AFTER ANOTHER OF THE  ... EMPLOYERS IN THE WHIPSAWING
MANNER  ...  ." 

FN11  109 N.L.R.B., AT 448-449. 

FN12  231 F.2D, AT 112.    FN13  ID., AT 113. 

FN14  ID., AT 118. 

FN15  SEE, E.G., EXPLANATION OF THE BILL BY SENATOR WALSH, CHAIRMAN
OF THE SENATE COMMITTEE ON EDUCATION AND LABOR, 79 CONG. REC. 7673. 

FN16  61 STAT. 140, 29 U.S.C. SEC. 158(D)(4)(NO RESORT TO "STRIKE OR
LOCK-OUT" DURING 60-DAY NOTICE PERIOD); 61 STAT. 153, 29 U.S.C. SEC.
173(C) (DIRECTOR OF MEDIATION SERVICE TO SEEK TO INDUCE PARTIES TO
SETTLE DISPUTE PEACEFULLY "WITHOUT RESORT TO STRIKE, LOCK-OUT, OR OTHER
COERCION"); 61 STAT. 155, 29 U.S.C. SEC. 176 (APPOINTMENT OF BOARD OF
INQUIRY BY PRESIDENT WHEN "THREATENED OR ACTUAL STRIKE OR LOCK-OUT"
CREATES A NATIONAL EMERGENCY); 61 STAT. 155, 29 U.S.C. SEC. 178 (POWER
TO ENJOIN "STRIKE OR LOCK-OUT" IN CASE OF NATIONAL EMERGENCY). 

FN17  H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 21-22, 70, 82; S. REP.
NO. 105, 80TH CONG., 1ST SESS. 24; S. REP. NO. 105, PT. 2, 80TH CONG.,
1ST SESS. 21; H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 34-35. 
SEE ALSO, E.G., 93 CONG. REC. 1827-1828, 3835. 

FN18 E.G., LABOR BOARD V. WALLICK, 198 F.2D 477; LABOR BOARD V.
SOMERSET CLASSICS, 193 F.2D 613; OLIN INDUSTRIES V. LABOR BOARD 191
F.2D 613; CF. ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103. 

FN19  WE THUS FIND IT UNNECESSARY TO PASS UPON THE QUESTION WHETHER,
AS A GENERAL PROPOSITION, THE EMPLOYER LOCKOUT IS THE COROLLARY OF THE
EMPLOYEES' STATUTORY RIGHT TO STRIKE. 

FN20  AS PREVIOUSLY NOTED, THE BOARD DECISION IS BASED IN PART ON A
FINDING THAT THE PRESERVATION OF EMPLOYER SOLIDARITY JUSTIFIES A
LOCKOUT AS A DEFENSE TO A WHIPSAW STRIKE. 

FN21  231 F.2D, AT 117-118. 

FN22  ID., AT 118. 

THE OPINION OF THE COURT OF APPEALS MAY BE INTERPRETED AS REJECTING
EMPLOYER SOLIDARITY AS A JUSTIFICATION FOR A LOCKOUT ON THE GROUND THAT
THE UNION STRIKE CONSTITUTED A WITHDRAWAL BY THE UNION FROM THE MULTI
EMPLOYER BARGAINING UNIT.  THE COURT OF APPEALS VIGOROUSLY ARGUED THAT
A UNION SHOULD BE ACCORDED THE SAME FREEDOM OF VOLUNTARY WITHDRAWAL
FROM A MULTI-EMPLOYER BARGAINING UNIT AS THE BOARD HAS ACCORDED TO
INDIVIDUAL EMPLOYERS.  BUT THAT QUESTION IS NOT PRESENTED BY THIS CASE,
AND WE EXPRESSLY RESERVE DECISION UNTIL IT IS PROPERLY BEFORE US.  THE
FACTS HERE CLEARLY SHOW THAT THE UNION STRIKE WAS NOT AN ATTEMPT TO
WITHDRAW FROM THE MULTI-EMPLOYER BARGAINING UNIT.  ON THE CONTRARY, THE
UNION CONTINUED TO CARRY ON NEGOTIATIONS WITH THE EXCHANGE UNTIL AN
AGREEMENT WAS REACHED AND SIGNED. 

FN23  BAHRS, THE SAN FRANCISCO EMPLOYERS' COUNCIL; CHAMBERLAIN,
COLLECTIVE BARGAINING, 178-179, 180, 182; FREIDIN, THE TAFT-HARTLEY ACT
AND MULTI-EMPLOYER BARGAINING, 4-5; GARRETT AND TRIPP, MANAGEMENT
PROBLEMS IMPLICIT IN MULTI-EMPLOYER BARGAINING, 2-3; KERR AND RANDALL,
COLLECTIVE BARGAINING IN THE PACIFIC COAST PULP AND PAPER INDUSTRY, 3
4; PIERSON, MULTI-EMPLOYER BARGAINING, 35-36; WOLMAN, INDUSTRY-WIDE
BARGAINING. 

FN24  79 MONTHLY LABOR REVIEW 805 (1956). 

BASED ON COLLECTIVE BARGAINING AGREEMENTS ON FILE WITH THE BUREAU OF
LABOR STATISTICS IN 1951, APPROXIMATELY 80% OF THE UNIONIZED EMPLOYEES
IN THE LAUNDRY INDUSTRY WERE REPRESENTED UNDER MULTI-EMPLOYER
BARGAINING.  B.L.S. REP. NO. 1 (1953), COLLECTIVE BARGAINING
STRUCTURES: THE EMPLOYER BARGAINING UNIT, 10. 

FN25 HEARINGS BEFORE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE ON
S. 55 ET AL., 80TH CONG., 1ST SESS. 427-428, 1012-1017, 1032-1037, 1055
1057, 1162-1165, 2018-2019, 2370-2371; S. REP. NO. 105, PT. 2, 80TH
CONG., 1ST SESS. 6-8; HEARINGS BEFORE HOUSE COMMITTEE ON EDUCATION AND
LABOR ON H.R. 8 ET AL., 80TH CONG., 1ST SESS. 552-553, 1552-1554, 3024
3026; 93 CONG. REC. 1834-1844, 4030-4031, 4443-4444, 4581-4587, 4674
4676. 

FN26  231 F.2D, AT 121 (DISSENTING OPINION). 

FN27  LABOR BOARD V. MACKAY RADIO & TELEGRAPH CO., 304 U.S. 333;
LABOR BOARD V. CONTINENTAL BAKING CO., 221 F.2D 427; LABOR BOARD V.
SPALDING AVERY LUMBER CO., 220 F.2D 673; LEONARD V. LABOR BOARD, 197
F.2D 435, 205 F.2D 355; MORAND BROS. BEVERAGE CO. V. LABOR BOARD, 190
F.2D 576; BETTS CADILLAC OLDS, INC., 96 N.L.R.B. 268; INTERNATIONAL
SHOE CO., 93 N.L.R.B.  907; DULUTH BOTTLING ASSOCIATION, 48 N.L.R.B.
1335. 

FN28  LABOR BOARD V. BABCOCK & WILCOX CO., 351 U.S. 105; REPUBLIC
AVIATION CORP. V. LABOR BOARD, 324 U.S. 793; PHELPS DODGE CORP. V.
LABOR BOARD, 313 U.S. 177. 

IN PHELPS DODGE, THE COURT SAID: 

"  ...  THERE IS AN AREA PLAINLY COVERED BY THE LANGUAGE OF THE ACT
AND AN AREA NO LESS PLAINLY WITHOUT IT.  BUT IN THE NATURE OF THINGS
CONGRESS COULD NOT CATALOGUE ALL THE DEVICES AND STRATAGEMS FOR
CIRCUMVENTING THE POLICIES OF THE ACT.  NOR COULD IT DEFINE THE WHOLE
GAMUT OF REMEDIES TO EFFECTUATE THESE POLICIES IN AN INFINITE VARIETY
OF SPECIFIC SITUATIONS.  CONGRESS MET THESE DIFFICULTIES BY LEAVING THE
ADAPTATION OF MEANS TO END TO THE EMPIRIC PROCESS OF ADMINISTRATION. 
THE EXERCISE OF THE PROCESS WAS COMMITTED TO THE BOARD, SUBJECT TO
LIMITED JUDICIAL REVIEW.  BECAUSE THE RELATION OF REMEDY TO POLICY IS
PECULIARLY A MATTER FOR ADMINISTRATIVE COMPETENCE, COURTS MUST NOT
ENTER THE ALLOWABLE AREA OF THE BOARD'S DISCRETION AND MUST GUARD
AGAINST THE DANGER OF SLIDING UNCONSCIOUSLY FROM THE NARROW CONFINES OF
LAW INTO THE MORE SPACIOUS DOMAIN OF POLICY.  ON THE OTHER HAND, THE
POWER WITH WHICH CONGRESS INVESTED THE BOARD IMPLIES RESPONSIBILITY -
THE RESPONSIBILITY OF EXERCISING ITS JUDGMENT IN EMPLOYING THE
STATUTORY POWERS."  313 U.S., AT 194. 

FN29  BETTS CADILLAC OLDS, INC., 96 N.L.R.B. 268; INTERNATIONAL SHOE
CO., 93 N.L.R.B.  907; DULUTH BOTTLING ASSOCIATION, 48 N.L.R.B. 1335. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














UNITED STATES V. OHIO POWER CO. 353 U.S. 98 


NO. 312, OCTOBER TERM, 1955.  CERTIORARI DENIED OCTOBER 17, 1955 -
REHEARING DENIED DECEMBER 5, 1955 - REHEARING AGAIN DENIED MAY 26, 1956
- ORDER DENYING REHEARING VACATED JUNE 11, 1956 - REHEARING AND
CERTIORARI GRANTED AND CASE DECIDED APRIL 1, 1957 - 131 CT. CL. 95, 129
F. SUPP. 215, REVERSED. 


1.  THE PETITION FOR REHEARING IS GRANTED; THE ORDER ENTERED OCTOBER
17, 1955, DENYING CERTIORARI IS VACATED; THE PETITION FOR CERTIORARI IS
GRANTED; AND THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED ON THE
AUTHORITY OF UNITED STATES V. ALLEN-BRADLEY CO., 352 U.S. 306, AND
NATIONAL LEAD CO. V. COMMISSIONER, 352 U.S. 313.  PP. 98-99. 

2.  THE INTEREST IN FINALITY OF LITIGATION MUST YIELD WHEN THE
INTERESTS OF JUSTICE WOULD MAKE UNFAIR THE STRICT APPLICATION OF THE
RULES OF THIS COURT.  P. 99. 

UNITED STATES V. OHIO POWER CO. 

ON PETITION FOR REHEARING. 

PER CURIAM. 

ON JUNE 11, 1956, WE UNANIMOUSLY VACATED SUA SPONTE OUR ORDER OF
DECEMBER 5, 1955 (350 U.S. 919), DENYING THE TIMELY PETITION FOR
REHEARING IN THIS CASE (351 U.S. 980), SO THAT THIS CASE MIGHT BE
DISPOSED OF CONSISTENTLY WITH THE COMPANION CASES OF UNITED STATES V.
ALLEN-BRADLEY CO., 352 U.S. 306, AND NATIONAL LEAD CO. V. COMMISSIONER,
352 U.S. 313, IN WHICH WE HAD GRANTED CERTIORARI THE SAME DAY, VIZ.
JUNE 11, 1956.  351 U.S. 981.  IF THERE IS TO BE UNIFORMITY IN THE
APPLICATION OF THE PRINCIPLES ANNOUNCED IN THOSE TWO COMPANION CASES,
THE JUDGMENT BELOW IN THE INSTANT CASE CANNOT STAND.  ACCORDINGLY WE
NOW GRANT THE PETITION FOR REHEARING, VACATE THE ORDER DENYING
CERTIORARI, GRANT THE PETITION FOR CERTIORARI, AND REVERSE THE JUDGMENT
OF THE COURT OF CLAIMS ON THE AUTHORITY OF UNITED STATES V. ALLEN
BRADLEY CO., SUPRA, AND NATIONAL LEAD CO. V. COMMISSIONER, SUPRA. 

WE HAVE CONSISTENTLY RULED THAT THE INTEREST IN FINALITY OF
LITIGATION MUST YIELD WHERE THE INTERESTS OF JUSTICE WOULD MAKE UNFAIR
THE STRICT APPLICATION OF OUR RULES.  THIS POLICY FINDS EXPRESSION IN
THE MANNER IN WHICH WE HAVE EXERCISED OUR POWER OVER OUR OWN JUDGMENTS,
BOTH IN CIVIL AND CRIMINAL CASES.  CLARK V. MANUFACTURERS TRUST CO.,
337 U.S. 953; GOLDBAUM V. UNITED STATES, 347 U.S. 1007; MCFEE V. UNITED
STATES, 347 U.S. 1007; REMMER V. UNITED STATES, 348 U.S. 904; FLORIDA
EX REL. HAWKINS V. BOARD OF CONTROL, 350 U.S. 413; BOUDOIN V. LYKES
BROS. S.S. CO., 350 U.S. 811; CAHILL V. NEW YORK, N.H.&H.R.  CO., 351
U.S. 183; ACHILLI V. UNITED STATES, 352 U.S. 1023.  REVERSED. 

MR. JUSTICE BRENNAN AND MR. JUSTICE WHITTAKER TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

THE COURT'S ACTION IN OVERTURNING THE JUDGMENT OF THE COURT OF CLAIMS
IN THIS CASE, NEARLY A YEAR AND A HALF AFTER WE DENIED CERTIORARI, AND
DESPITE THE SUBSEQUENT DENIAL OF TWO SUCCESSIVE PETITIONS FOR
REHEARING, IS SO DISTURBING A DEPARTURE FROM WHAT I CONCEIVE TO BE
SOUND PROCEDURE THAT I AM CONSTRAINED TO DISSENT. 

THIS IS A TAX CASE INVOLVING THE RIGHT OF THE WAR PRODUCTION BOARD TO
CERTIFY THAT ONLY PART OF THE ACTUAL COST OF WARTIME FACILITIES,
CONSTRUCTED BY A TAXPAYER AT THE INSTANCE OF THE GOVERNMENT, WAS
NECESSARY IN THE NATIONAL DEFENSE AND HENCE SUBJECT TO ACCELERATED
AMORTIZATION UNDER SEC. 124(F) OF THE INTERNAL REVENUE CODE OF 1939. 
(FN1)  CLAIMING THAT THE WAR PRODUCTION BOARD HAD NO POWER TO CERTIFY
LESS THAN THE FULL COST OF SUCH FACILITIES, THE OHIO POWER COMPANY SUED
THE GOVERNMENT IN THE COURT OF CLAIMS TO RECOVER AN ALLEGED OVERPAYMENT
OF TAXES, ASSERTING THAT IT WAS ENTITLED TO ACCELERATED AMORTIZATION OF
THE FULL COST OF WARTIME FACILITIES WHICH IT HAD CONSTRUCTED, AND NOT
MERELY OF THAT PART OF THE COST WHICH THE WAR PRODUCTION BOARD HAD
CERTIFIED AS NECESSARY IN THE INTEREST OF NATIONAL DEFENSE.  THE COURT
OF CLAIMS, SUSTAINING THIS CONTENTION, ENTERED JUDGMENT IN FAVOR OF THE
TAXPAYER ON MARCH 1, 1955.  (FN2) 

ON AUGUST 12, 1955, THE GOVERNMENT PETITIONED FOR CERTIORARI, ITS
TIME FOR FILING HAVING BEEN DULY EXTENDED.  WE DENIED THE PETITION ON
OCTOBER 17, 1955.  350 U.S. 862.  ON NOVEMBER 10, 1955, THE GOVERNMENT
FILED A TIMELY PETITION FOR REHEARING, REQUESTING THAT ITS
CONSIDERATION BE DEFERRED UNTIL THE CASE OF COMMISSIONER V. NATIONAL
LEAD CO., (FN3) INVOLVING THIS SAME TAX QUESTION, HAD BEEN DECIDED BY
THE COURT OF APPEALS FOR THE SECOND CIRCUIT.  WE DENIED THIS PETITION
ON DECEMBER 5, 1955.  350 U.S. 919.  ON FEBRUARY 14, 1956, THE COURT OF
APPEALS DECIDED NATIONAL LEAD IN FAVOR OF THE GOVERNMENT, (FN4) AND ON
APRIL 3, 1956, THE COURT OF CLAIMS, IN ALLEN-BRADLEY CO. V. UNITED
STATES, (FN5) DECIDED THE SAME TAX QUESTION FAVORABLY TO THE TAXPAYER,
AS IT HAD ALREADY DONE IN THE OHIO POWER CASE.  THIS, THEN, PROVIDED
THE GOVERNMENT WITH THE "CONFLICT" WHICH HAD BEEN LACKING AT THE TIME
WHEN THE COURT DENIED ITS PETITION FOR CERTIORARI IN THE PRESENT CASE. 
ON THIS BASIS THE GOVERNMENT, ON MAY 3, 1956, PETITIONED FOR CERTIORARI
IN ALLEN-BRADLEY, (FN6) AND AT THE SAME TIME PETITIONED FOR LEAVE TO
FILE A SECOND PETITION FOR REHEARING IN THE OHIO POWER CASE.  ON MAY
28, 1956, THE COURT DENIED THAT PETITION BECAUSE IT WAS BOTH LONG OUT
OF TIME AND "CONSECUTIVE," (FN7) 351 U.S. 958, AND THUS FOR THE THIRD
TIME REFUSED TO TAKE THE CASE.  NEVERTHELESS, TWO WEEKS THEREAFTER, ON
JUNE 11, 1956, THE COURT, INCIDENT TO ITS GRANTS OF CERTIORARI IN THE
ALLEN-BRADLEY AND NATIONAL LEAD CASES, VACATED SUA SPONTE ITS ORDER OF
DECEMBER 5, 1955 DENYING THE GOVERNMENT'S ORIGINAL TIMELY PETITION FOR
REHEARING IN THE OHIO POWER CASE.  351 U.S. 980.  AND TODAY THE COURT
GRANTS THAT PETITION, SOME 16 MONTHS AFTER IT HAD ORIGINALLY BEEN
DENIED, AND REVERSES THE COURT OF CLAIMS' JUDGMENT IN FAVOR OF THE
TAXPAYER. 

  I. 

IN MY OPINION, TODAY'S ORDER REVERSING THE COURT OF CLAIMS VIOLATES
OUR OWN RULES.  THAT ORDER IS BASED UPON THE COURT'S ORDER OF JUNE 11,
1956, WHICH VACATED THE ORDER OF DECEMBER 5, 1955 DENYING THE
GOVERNMENT'S FIRST PETITION FOR REHEARING OF THE DENIAL OF CERTIORARI. 
THIS JUNE 11 ORDER THUS PURPORTED TO CONTINUE CONSIDERATION OF THE
ORIGINAL PETITION FOR REHEARING, WHICH IS NOW GRANTED.  UNDER OUR
RULES, I THINK THE ORDER OF JUNE 11 WAS IMPROVIDENTLY ISSUED.  (FN8)
HAD THE GOVERNMENT, JUST PRIOR TO JUNE 11, 1956, PETITIONED TO VACATE
THE ORDER OF DECEMBER 5, 1955, THE PETITION WOULD HAVE VIOLATED RULE 58
OF OUR REVISED RULES, WHETHER CONSIDERED AS, IN EFFECT, A PETITION FOR
REHEARING OF THAT ORDER, IN WHICH CASE IT WOULD HAVE BEEN OUT OF TIME,
OR AS A PETITION FOR REHEARING OF THE ORIGINAL DENIAL OF CERTIORARI, IN
WHICH CASE IT WOULD HAVE BEEN BOTH OUT OF TIME AND "CONSECUTIVE." 
(FN9)  TO SAY THAT THE ORDER OF JUNE 11 COULD ESCAPE RULE 58 BECAUSE IT
WAS MADE ON THE COURT'S INITIATIVE SEEMS TO ME TO INVOLVE THE MOST
HYPERTECHNICAL SORT OF REASONING. 

IF WE ARE TO FOLLOW OUR RULES THE ORDER OF JUNE 11, AND WITH IT
TODAY'S ORDER, MUST FALL, FOR THIS LITIGATION MUST BE CONSIDERED TO
HAVE BEEN CLOSED ON DECEMBER 5, 1955, WHEN THE COURT DENIED THE
GOVERNMENT'S FIRST PETITION FOR REHEARING. 

                                       II. 

RULE 58, BY MARKING THE END OF A CASE IN THIS COURT, IS INTENDED TO
FURTHER THE LAW'S DEEP-ROOTED POLICY THAT ADJUDICATION MUST AT SOME
TIME BECOME FINAL.  I THINK WE SHOULD FOLLOW IT.  PRIOR TO 1948, THE
OUTSIDE LIMIT OF RULES OF FINALITY IN THE FEDERAL COURTS WAS THE END OF
THE TERM, BECAUSE, EXCEPT FOR THE EXTRAORDINARY WRITS, FEDERAL COURTS
WERE CONSIDERED TO HAVE NO POWER TO DEAL WITH THEIR JUDGMENTS AFTER THE
END OF THE TERM AT WHICH THEY WERE RENDERED.  BRONSON V. SCHULTEN, 104
U.S. 410, 415.  IN 1948 CONGRESS ABOLISHED THE "END OF TERM" RULE BY A
STATUTE, 28 U.S.C. SEC. 452, (FN10) WHICH WAS EXPRESSLY MADE APPLICABLE
TO THIS COURT.  28 U.S.C. SEC. 451.  THE EFFECT OF SEC. 452 WAS TO
LEAVE THE FEDERAL COURTS UNTRAMMELED IN ESTABLISHING THEIR OWN RULES OF
FINALITY.  BUT THE HISTORY OF SEC. 452 INDICATES THAT THE COURTS WERE
TO HAVE NO POWER TO RE-EXAMINE THEIR JUDGMENTS OTHERWISE THAN IN
ACCORDANCE WITH THEIR ESTABLISHED RULES OR STATUTES.  SECTION 452 WAS
MODELED ON RULE 6(C) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  (FN11)
SEE THE REVISER'S NOTE TO SEC. 452, 28 U.S.C., P. 4142.  AS ORGINALLY
PROMULGATED IN 1938, RULE 6(C) HAD REFERRED ONLY TO THE "EXPIRATION OF
A TERM" AND NOT TO ITS "CONTINUED EXISTENCE."  IN 1944 THIS COURT HELD
THAT A DISTRICT COURT HAD INHERENT POWER TO VACATE A JUDGMENT AND ENTER
A NEW ONE, WITH THE EFFECT OF EXTENDING A PARTY'S RIGHT TO APPEAL,
NOTWITHSTANDING SUCH ACTION WAS NOT AUTHORIZED BY ANY RULE OF THE
DISTRICT COURT, BECAUSE THE TERM HAD NOT YET EXPIRED.  HILL V. HAWES,
320 U.S. 520, 524.  THEREAFTER, RULE 6(C) WAS AMENDED TO PROVIDE THAT
THE "CONTINUED EXISTENCE OR EXPIRATION" OF THE TERM SHOULD NOT AFFECT
THE POWER OF A COURT.  THE PURPOSE WAS "TO PREVENT RELIANCE UPON THE
CONTINUED EXISTENCE OF A TERM AS A SOURCE OF POWER TO DISTURB THE
FINALITY OF A JUDGMENT UPON GROUNDS OTHER THAN THOSE STATED IN THESE
RULES."  ADVISORY COMMITTEE ON RULES OF CIVIL PROCEDURE, REPORT OF
PROPOSED AMENDMENTS TO RULES, H.R. DOC. NO. 473, 80TH CONG., 1ST SESS.
50 (1946).  THE "CONTINUED EXISTENCE OR" LANGUAGE OF AMENDED RULE 6(C)
WAS TAKEN BODILY INTO SEC. 452. 

THE HISTORY OF SEC. 452 THUS CASTS GRAVE DOUBT, TO SAY THE LEAST, ON
THE POWER OF THE COURT TO DO WHAT IT HAS DONE IN THIS CASE, FOR ITS
ACTION WAS CERTAINLY NOT TAKEN "UPON GROUNDS  ...  STATED IN ITS
RULES."  (FN12)  I RECOGNIZE THAT SEC. 452 DOES NOT PREVENT THE COURT
FROM CHANGING ITS RULES, BUT IF THE STATUTE MEANS WHAT ITS HISTORY
SUGGESTS, SUCH CHANGES SHOULD BE MADE ON A GENERAL AND NOT AD HOC
BASIS, LEST CASES WHICH ARE ALIKE BE TREATED DIFFERENTLY.  (FN13) 

THIS COURT, HOWEVER, HAS NEVER FACED THE PROBLEMS RAISED BY SEC. 452,
BUT HAS PROCEEDED ON THE ASSUMPTION THAT THE STATUTE DOES NOT AFFECT
THE COURT'S INHERENT POWER OVER ITS JUDGMENTS; IN OTHER WORDS, THAT BY
RESORTING TO SUCH POWER THE COURT MAY AFFECT JUDGMENTS BY ACTION WHICH
WOULD OTHERWISE BE OUT OF TIME UNDER THE RULES.  IF THAT VIEW BE
CORRECT, IT FOLLOWS THAT FINALITY OF ADJUDICATION IN THIS COURT
ULTIMATELY DEPENDS ON THE COURT'S SELF-RESTRAINT.  THAT, AND THE
DOUBTFUL MEANING OF SEC. 452, SEEM TO ME IN ANY EVENT TO ARGUE STRONGLY
AGAINST DEPARTURES FROM RULE 58 - THE ONLY RULE OF FINALITY IN THIS
COURT - EXCEPT IN RARE INSTANCES.  I NOW TURN TO THE QUESTION OF
WHETHER THIS IS SUCH A CASE. 

    III. 

THE PAST PRACTICE OF THE COURT SHOWS THAT ITS INHERENT POWERS HAVE
ALWAYS BEEN EXERCISED MOST SPARINGLY.  THUS, PRIOR TO ENACTMENT OF SEC.
452 IN 1948, THE COURT, SO FAR AS I CAN DISCOVER, HAD NEVER IN ITS
HISTORY DEPARTED FROM THE "END OF TERM" RULE BY GRANTING A PETITION FOR
REHEARING AFTER THE END OF THE TERM AT WHICH A JUDGMENT HAD BEEN
RENDERED.  (FN14) BETWEEN 1948 AND THE EFFECTIVE DATE OF RULE 58 (JULY
1, 1954), ONE OF WHOSE PURPOSES WAS TO TIGHTEN THE RULES ENDING
LITIGATION IN THIS COURT, I CAN FIND ONLY FOUR CASES IN WHICH UNTIMELY
RELIEF WAS GRANTED:  CLARK V. MANUFACTURERS TRUST CO., 337 U.S. 953,
VACATED AND REMANDED SUB NOM. MCGRATH V. MANUFACTURERS TRUST CO., 338
U.S. 241; GOLDBAUM V. UNITED STATES, 347 U.S. 1007, 348 U.S. 905; BANKS
V. UNITED STATES, 347 U.S. 1007; 348 U.S. 905; MCFEE V. UNITED STATES,
347 U.S. 1007, 348 U.S. 905.  (FN15)  OF THESE ONLY CLARK BEARS ANY
SIMILARITY TO THIS CASE.  (FN16)  GOLDBAUM, BANKS AND MCFEE WERE
CRIMINAL "NET WORTH" TAX CASES IN WHICH THE COURT, SUA SPONTE, RESTORED
THE CASES TO THE DOCKET PENDING DECISION OF HOLLAND V. UNITED STATES,
348 U.S. 121, THE CASES THEREAFTER BEING REMANDED FOR RECONSIDERATION
IN LIGHT OF HOLLAND.  I NEED HARDLY SAY THAT THE GRANTING OF UNTIMELY
RELIEF IN CRIMINAL CASES PRESENTS CONSIDERATIONS NOT FOUND IN CIVIL
CASES. 

OF PARTICULAR SIGNIFICANCE HERE IS WHAT HAS HAPPENED SINCE RULE 58
BECAME EFFECTIVE.  FROM THEN UNTIL TODAY I HAVE DISCOVERED BUT THREE
CASES IN WHICH THE COURT HAS GRANTED REHEARING OUT OF TIME, ALL
INVOLVING SITUATIONS QUITE DISSIMILAR TO THAT PRESENTED HERE: REMMER V.
UNITED STATES, 348 U.S. 904; MCNALLY V. TEETS, 352 U.S. 886; ACHILLI V.
UNITED STATES, 352 U.S. 1023.  (FN17)  REMMER WAS A CRIMINAL CASE WHICH
HAD BEEN REMANDED TO THE LOWER COURT FOR FURTHER PROCEEDINGS, AND WHERE
THE PETITION FOR REHEARING RAISED QUESTIONS WHICH COULD AGAIN BE
BROUGHT TO THIS COURT ON CERTIORARI; REHEARING THUS SERVED TO AVOID THE
DELAY AND EXPENSE OF FURTHER INTERMEDIATE PROCEEDINGS BELOW, AND HARDLY
COULD BE CLAIMED TO CONFLICT WITH THE POLICY OF FINALITY.  MCNALLY,
ALSO A CRIMINAL CASE, SIMPLY INVOLVED CLARIFICATION OF THE COURT'S
EARLIER ORDER DENYING CERTIORARI, IN ORDER TO MAKE CLEAR THAT IT
COVERED TWO JUDGMENTS BELOW AGAINST THE PETITIONER INSTEAD OF ONLY
ONE.  FOR LACK OF SUCH A CLARIFICATION, THE PETITIONER'S APPLICATION
FOR HABEAS CORPUS HAD BEEN DENIED BY A FEDERAL DISTRICT COURT ON THE
GROUND THAT, HAVING FAILED TO PETITION FOR CERTIORARI FROM ONE OF THE
TWO STATE DECISIONS AGAINST HIM, HE HAD NOT FULLY EXHAUSTED HIS STATE
REMEDIES.  ACHILLI PRESENTED THE SAME FEATURES AS REMMER, IN THAT IT
WAS A CRIMINAL CASE PRESENTING A QUESTION THAT COULD AGAIN BE RAISED IN
PROCEEDINGS BELOW AND THEN BROUGHT TO THIS COURT IN DUE COURSE ON
CERTIORARI.  INDEED, EXACTLY THAT HAPPENED IN THE ACHILLI CASE:
PETITIONER, NOT ANTICIPATING THIS COURT'S WILLINGNESS TO RECONSIDER ITS
ORIGINAL DENIAL OF CERTIORARI, RAISED THE SAME QUESTION A SECOND TIME
BEFORE THE DISTRICT COURT, OBTAINED A NEW DECISION, AND PETITIONED
SUCCESSFULLY FOR CERTIORARI.  353 U.S. 909.  THE NET EFFECT OF THE
COURT'S UNTIMELY ORDER, THEREFORE, WAS TO BRING HERE MORE QUICKLY A
QUESTION THAT WOULD ARRIVE EVENTUALLY IN ANY CASE.  THREE OTHER CASES
DURING THIS PERIOD, THOUGH NOT ARISING ON PETITION FOR REHEARING, MAY
BE CONSIDERED TO HAVE INVOLVED OUT-OF-TIME ACTION BY THE COURT: FLORIDA
EX REL. HAWKINS V. BOARD OF CONTROL, 350 U.S. 413; BOUDOIN V. LYKES
BROS. S.S. CO., 350 U.S. 811, AND CAHILL V. NEW YORK, N.H.&H.R. CO.,
351 U.S. 183.  ALL OF THEM, HOWEVER, INVOLVED THE CORRECTION OF ERRORS
IN THE COURT'S OWN MANDATES, AND NOT, AS HERE, THE OVERTURNING OF
ANOTHER COURT'S DECISION THAT HAD LONG SINCE BEEN PERMITTED TO BECOME
FINAL.    THE OTHER SIDE OF THE COIN IS ALSO ILLUMINATING.  I FIND THAT
SINCE 1948 THERE HAVE BEEN SOME 191 UNTIMELY APPLICATIONS FOR
REHEARING, OR THE EQUIVALENT, (FN18) AS AGAINST ONLY 10 INSTANCES OF
UNTIMELY ACTION, 6 IN RESPONSE TO APPLICATIONS AND 4 ON THE COURT'S
INITIATIVE.  SINCE THE ADOPTION OF RULE 58 IN 1954, THE COURT HAS BEEN
ASKED ON 40 OCCASIONS TO GRANT REHEARING OUT OF TIME OF ORDERS DENYING
CERTIORARI, (FN19) AND, WITH THE EXCEPTION OF MCNALLY V. TEETS AND
ACHILLI V. UNITED STATES, SUPRA, CASES THAT MAY FAIRLY BE DESCRIBED AS
UNIQUE, AND THAT ARE CERTAINLY UNLIKE THIS ONE, EACH TIME IT HAS
REFUSED.  IN 13 OF THE 40 CASES, RELIEF WAS DENIED DESPITE THE CLAIMED
DEVELOPMENT OF A CONFLICT.  SEE FRAVER V. STUDEBAKER CORP., 348 U.S.
939; POWELL V. UNITED STATES, 348 U.S. 939; COWLES PUB. CO. V. LABOR
BOARD, 348 U.S. 960; JONES V. LYKES BROS. S.S. CO., 348 U.S. 960;
LOPIPARO V. UNITED STATES, 349 U.S. 969; MONDAKOTA GAS CO. V. MONTANA
DAKOTA UTILITIES CO., 349 U.S. 969; ZIENTEK V. READING CO., 350 U.S.
960; PREFERRED INS. CO. V. UNITED STATES, 351 U.S. 990; INTERNATIONAL
MOLDERS & FOUNDRY WORKERS V. WESTERN FOUNDRY CO., 352 U.S. 860;
FAIRMONT ALUMINUM CO. V. COMMISSIONER, 352 U.S. 913; BERNSTEIN V.
UNITED STATES, 352 U.S. 977; MEKOLICHICK V. UNITED STATES, 352 U.S.
977; CONSOLIDATED EDISON CO. OF N.Y., INC. V. UNITED STATES, 352 U.S.
1019.  (FN20)

THIS HISTORY OF PAST PRACTICE JUSTIFIES THE ASSERTION THAT THE COURT
HAS EXERCISED ITS INHERENT POWER WITH A SHARP EYE TO THE "PRINCIPLE
THAT LITIGATION MUST AT SOME DEFINITE POINT BE BROUGHT TO AN END,"
FEDERAL TRADE COMMISSION V. MINNEAPOLIS-HONEYWELL REGULATOR CO., 344
U.S. 206, 213, AND, IN RECENT YEARS AT LEAST, HAS ACTED ONLY WHERE IT
FELT THAT THE INTERESTS OF JUSTICE PLAINLY OUTWEIGHED CONSIDERATIONS OF
FINALITY. 

WHAT ABOUT THIS CASE?  THERE IS NOTHING TO DISTINGUISH IT FROM ANY
OTHER SUIT FOR A MONEY JUDGMENT IN WHICH A CONFLICT TURNS UP LONG AFTER
CERTIORARI AND REHEARING HAVE BEEN DENIED.  THE MOST THAT CAN BE SAID
IN JUSTIFICATION OF THE COURT'S ACTION IS THAT OTHERWISE OHIO POWER
WOULD NOT HAVE TO PAY TAXES WHICH ALLEN-BRADLEY AND NATIONAL LEAD MUST
PAY AS A RESULT OF THE MUCH LATER DECISIONS IN THEIR CASES.  YET THE
COURT TWICE FACED AND REJECTED THAT VERY POSSIBILITY MANY MONTHS AGO,
(1) WHEN IT DENIED THE GOVERNMENT'S TIMELY PETITION FOR REHEARING,
DESPITE THE REQUEST THAT CONSIDERATION OF IT BE DEFERRED UNTIL THE
COURT OF APPEALS HAD DECIDED THE NATIONAL LEAD CASE, AND (2) WHEN IT
DENIED THE GOVERNMENT'S SECOND, AND UNTIMELY, PETITION FOR REHEARING IN
THE FACE OF THE CONFLICT WITH NATIONAL LEAD.  AND IN ANY EVENT, THIS IS
SURELY NOT THE KIND OF INJUSTICE THAT WARRANTS OVERRIDING THE POLICY OF
FINALITY OF ADJUDICATION.  WHAT HAS HAPPENED HERE IS COMMONPLACE;
INDEED IT ARISES IN EVERY INSTANCE WHERE THE COURT GRANTS CERTIORARI TO
SETTLE ANY BUT THE MOST RECENT CONFLICT.  PERHAPS OUT-OF-TIME ACTION
MAY BE JUSTIFIED IN SOME INSTANCES WHERE THE TIME INTERVAL BETWEEN A
FINALLY DECIDED CASE AND A SUBSEQUENT CONTRARY DECISION OF THIS COURT
IS SHORT.  BUT WE DO NOT HAVE THAT SITUATION HERE, WHERE MORE THAN 15
MONTHS ELAPSED BETWEEN THE DENIAL OF CERTIORARI IN OHIO POWER (OCTOBER
17, 1955) AND OUR DECISIONS IN ALLEN-BRADLEY AND NATIONAL LEAD (JANUARY
22, 1957), AND WHERE IN THE INTERVAL THE COURT HAD TWICE DENIED
REHEARING, WITH THE VERY FACTORS BEFORE IT WHICH ARE NOW SAID TO
JUSTIFY ITS PRESENT ACTION.  IF THE RULES OF FINALITY ARE TO HAVE REAL
SIGNIFICANCE IN THIS COURT, I SUBMIT THAT BY EVERY TOKEN THE TAXPAYER
HERE WAS ENTITLED TO BELIEVE THAT ITS CASE HAD BEEN IRREVOCABLY
CLOSED. 

THERE IS AN ADDITIONAL REASON WHY THIS CASE SHOULD NOT NOW BE
REOPENED.  HAD THIS CASE COME TO US FROM THE TAX COURT, OUR COURT WOULD
HAVE HAD NO POWER TO DO WHAT IT HAS DONE, IT BEING WELL ESTABLISHED
THAT WHEN CERTIORARI HAS BEEN DENIED THE POWER OF THIS COURT TO AFFECT
DECISIONS OF THE TAX COURT ENDS WITH THE DENIAL OF A PETITION FOR
REHEARING, OR, WHERE NO SUCH PETITION HAS BEEN FILED, WITH THE RUNNING
OF THE 25-DAY PERIOD WITHIN WHICH REHEARING MAY BE SOUGHT.  INTERNAL
REVENUE CODE OF 1939, SEC. 1140, NOW INTERNAL REVENUE CODE OF 1954,
SEC. 7481(2)(B); R. SIMPSON & CO. V. COMMISSIONER, 321 U.S. 225; AND
SEE HELVERING V. NORTHERN COAL CO., 293 U.S. 191.  IT IS AN ODD
CIRCUMSTANCE THAT THE COURT SHOULD HAVE REAFFIRMED THIS RULE ONLY A FEW
WEEKS AGO.  LASKY V. COMMISSIONER, 352 U.S. 1027.  THE UNDESIRABILITY
OF ACCORDING DIFFERENT TREATMENT TO TAX CASES ARISING FROM DIFFERENT
SOURCES SCARCELY REQUIRES COMMENT.  FOR ME, THIS CONSIDERATION ALONE IS
A SUFFICIENT REASON FOR DENYING RELIEF IN THIS CASE. 

FOR THE REASONS GIVEN I MUST DISSENT.  I CAN THINK OF NOTHING MORE
UNSETTLING TO LAWYERS AND LITIGANTS, AND MORE DISTURBING TO THEIR
CONFIDENCE IN THE EVENHANDEDNESS OF THE COURT'S PROCESSES, THAN TO BE
LEFT IN THE KIND OF UNCERTAINTY WHICH TODAY'S ACTION ENGENDERS, AS TO
WHEN THEIR CASES MAY BE CONSIDERED FINALLY CLOSED IN THIS COURT. 

FN1  54 STAT. 998-1003, AS AMENDED, 26 U.S.C. SECS. 23(T), 124. 

FN2  131 CT. CL. 95, 129 F. SUPP. 215. 

FN3  230 F.2D 161. 

FN4  IBID. 

FN5  134 CT. CL. 800. 

FN6  ON MAY 29, 1956, NATIONAL LEAD COMPANY LIKEWISE FILED ITS
PETITION FOR CERTIORARI TO THE COURT OF APPEALS FOR THE SECOND CIRCUIT
IN THE CASE WHICH IT HAD LOST. 

FN7  RULE 58, PAR. 2, OF THIS COURT'S REVISED RULES PROVIDES:  "A
PETITION FOR REHEARING OF ORDERS ON PETITIONS FOR WRITS OF CERTIORARI
MAY BE FILED WITH THE CLERK  ...  SUBJECT TO THE REQUIREMENTS
RESPECTING TIME  ...  AS PROVIDED IN PARAGRAPH 1 OF THIS RULE." 
PARAGRAPH 1 OF RULE 58 PROVIDES:  "A PETITION FOR REHEARING OF
JUDGMENTS OR DECISIONS OTHER THAN THOSE DENYING OR GRANTING CERTIORARI,
MAY BE FILED WITH THE CLERK  ...  WITHIN TWENTY-FIVE DAYS AFTER
JUDGMENT OR DECISION, UNLESS THE TIME IS SHORTENED OR ENLARGED BY THE
COURT OR A JUSTICE THEREOF."  THERE WAS, OF COURSE, NO ENLARGEMENT OF
THE TIME HERE.  PARAGRAPH 4 OF RULE 58 PROVIDES:  "CONSECUTIVE
PETITIONS FOR REHEARINGS, AND PETITIONS FOR REHEARING THAT ARE OUT OF
TIME UNDER THIS RULE, WILL NOT BE RECEIVED." 

FN8  THE WRITER OF THIS OPINION, AND THOSE WHO JOIN HIM, SHARE IN THE
RESPONSIBILITY FOR THE ISSUANCE OF THE ORDER OF JUNE 11. 

FN9  UNDER THE OLD RULES, IT WAS NOT THOUGHT POSSIBLE TO PETITION FOR
REHEARING OF A DENIAL OF REHEARING.  SUCH PETITIONS WERE TREATED AS
MISCAPTIONED UNTIMELY PETITIONS FOR REHEARING OF THE ORIGINAL ORDER. 
PRESUMABLY THE SAME PRACTICE OBTAINS UNDER THE REVISED RULES. 
OTHERWISE, AN ENDLESS PROCESSION OF "TIMELY" PETITIONS FOR REHEARING
COULD BE FILED, ONE EVERY 25 DAYS AD INFINITUM. 

FN10  SO FAR AS PERTINENT, SEC. 452 PROVIDES:  "THE CONTINUED
EXISTENCE OR EXPIRATION OF A TERM OF COURT IN NO WAY AFFECTS THE POWER
OF THE COURT TO DO ANY ACT OR TAKE ANY PROCEEDING." 

FN11  "THE PERIOD OF TIME PROVIDED FOR THE DOING OF ANY ACT OR THE
TAKING OF ANY PROCEEDING IS NOT AFFECTED OR LIMITED BY THE CONTINUED
EXISTENCE OR EXPIRATION OF A TERM OF COURT.  THE CONTINUED EXISTENCE OR
EXPIRATION OF A TERM OF COURT IN NO WAY AFFECTS THE POWER OF A COURT TO
DO ANY ACT OR TAKE ANY PROCEEDING IN ANY CIVIL ACTION WHICH HAS BEEN
PENDING BEFORE IT." 

FN12  TEXT WRITERS HAVE DISAGREED AS TO THE EFFECT OF SEC. 452. 
COMPARE WEINER, THE SUPREME COURT'S NEW RULES, 68 HARV. L. REV. 20, 84
86 (1954), WITH STERN & GRESSMAN, SUPREME COURT PRACTICE (2D ED. 1954),
349, 355. 

FN13  IT MAY BE SUGGESTED THAT, BECAUSE THIS COURT HAS NO RULES
COMPARABLE TO FED. RULES CIV. PROC., 60(A) AND (B), PERMITTING
APPLICATIONS FOR SUBSEQUENT CHANGES IN JUDGMENTS TO BE MADE ON VARIOUS
GROUNDS, IT WOULD BE UNFORTUNATE TO CONSTRUE SEC. 452 AS PROHIBITING
THIS COURT FROM EXERCISING INHERENT POWER TO CORRECT JUDGMENTS OUT OF
TIME FOR SUCH THINGS AS FRAUD, MISTAKE, AND CLERICAL ERROR.  TO MY WAY
OF THINKING, IT WOULD BE PREFERABLE TO MEET THIS PROBLEM BY ADDING TO
OUR RULES, RATHER THAN BY MAKING AD HOC EXCEPTIONS TO RULE 58.  THE
LATTER COURSE, I FEAR, IS BOUND TO LEAD TO THE SORT OF THING THAT HAS
HAPPENED IN THIS CASE, LEAVING LITIGANTS IN UNCERTAINTY AS TO WHEN THEY
MAY SAFELY CONSIDER THEIR CASES CLOSED IN THIS COURT. 

FN14  SEE CHARLES ELMORE CROPLEY, REPORT OF SURVEY BY THE CLERK OF
RULES AND PRACTICE IN RELATION TO PETITIONS FOR REHEARING, PREPARED BY
DIRECTION OF THE CHIEF JUSTICE, WITH SUGGESTIONS AND SUPPORTING DATA
(JANUARY 7, 1947). 

FN15  SEE ALSO CALIFORNIA V. ZOOK, 337 U.S. 921, IN WHICH A MOTION
FOR LEAVE TO FILE A PETITION FOR REHEARING OUT OF TIME WAS GRANTED,
APPARENTLY ON GROUNDS OF EXCUSABLE NEGLECT, AND THE PETITION WAS
SIMULTANEOUSLY DENIED; AND LAND V. DOLLAR, 341 U.S. 737, 738, IN WHICH
A BELATED "MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION" OF A
DENIAL OF CERTIORARI WAS CONTINUED ON THE DOCKET.  THE MOTION WAS
ULTIMATELY WITHDRAWN.  344 U.S. 807. 

FN16  CLARK INVOLVED QUESTIONS UNDER THE TRADING WITH THE ENEMY ACT,
AN UNTIMELY PETITION FOR REHEARING OF THE DENIAL OF CERTIORARI BEING
GRANTED BECAUSE OF A SUBSEQUENTLY ARISING CONFLICT.  UNLIKE THE PRESENT
CASE, THERE WAS NO OTHER PENDING CASE THROUGH WHICH THE QUESTION COULD
BE SETTLED BY THIS COURT FOR THE FUTURE, BECAUSE THE "CONFLICT" CASE
WAS NEVER APPEALED.  SEE MCGRATH V. E.J. LAVINO & CO., 91 F. SUPP. 786,
787.  MORE RECENTLY THE COURT HAS CONSISTENTLY DENIED BELATED PETITIONS
FOR REHEARING BASED UPON CLAIMED SUBSEQUENT CONFLICTS.  SEE THE CASES
CITED AT PP. 108-109, INFRA, AND PARTICULARLY MONDAKOTA GAS CO. V.
MONTANA-DAKOTA UTILITIES COMPANY, 349 U.S. 969, WHERE THE COURT DENIED
LEAVE TO FILE AN UNTIMELY PETITION FOR REHEARING EVEN THOUGH THE
DECISION BELOW HAD BEEN EXPRESSLY DISAPPROVED BY AN INTERVENING AND
CONTROLLING DECISION DECISION OF THIS COURT.  SEE PARISSI V. TELECHRON,
INC., 349 U.S. 46, 47. 

THE CLARK CASE IS NOT A PERSUASIVE PRECEDENT ON ANY OF THE LEGAL
QUESTIONS INVOLVED IN THIS CASE, BECAUSE FOR ALL THAT APPEARS NEITHER
SIDE CALLED THE ATTENTION OF THE COURT TO THE THEN RECENT ENACTMENT OF
SEC. 452 AND ITS POSSIBLE RESTRICTIVE EFFECTS ON PRIOR RULES RELATING
TO REHEARINGS. 

FN17  CF. BORN V. LAUBE, 348 U.S. 932; BERNSTEIN V. UNITED STATES,
352 U.S. 977; MEKOLICHICK V. UNITED STATES, 352 U.S. 977; CLIETT V.
SCOTT, 353 U.S. 918, IN WHICH THE COURT SIMULTANEOUSLY GRANTED MOTIONS
FOR LEAVE TO FILE PETITIONS FOR REHEARING OUT OF TIME, AND DENIED THE
PETITIONS FOR REHEARING.  SEE ALSO SMITH V. UNITED STATES, 353 U.S.
921. 

FN18  THE COUNT INCLUDES UNTIMELY PETITIONS FOR REHEARING, SUCCESSIVE
PETITIONS FOR REHEARING, MOTIONS FOR LEAVE TO FILE PETITIONS FOR
REHEARING, MOTIONS FOR LEAVE TO FILE SUCCESSIVE PETITIONS FOR
REHEARING, AND MOTIONS AND PETITIONS FOR RECONSIDERATION OF DENIAL OF
REHEARING OR OF LEAVE TO FILE PETITIONS FOR REHEARING.  SEE 335 U.S.
838 (TWO CASES), 855, 864 (SIX CASES), 888, 894 (TWO CASES), 899, 900;
336 U.S. 911, 915 (FOUR CASES), 921, 929 (TWO CASES), 932 (TWO CASES),
941, 955, 963, 971; 337 U.S. 911, 920, 921 (TWO CASES), 934, 950 (THREE
CASES), 953 (TWO CASES), 961 (FIVE CASES); 338 U.S. 841 (FOUR CASES),
863, 882, 889, 939, 940, 953; 339 U.S. 906, 916, 926, 936, 950, 954,
972, 973 (THREE CASES), 992 (TWO CASES); 340 U.S. 846, 848, 898, 907,
918, 939, 940,; 341 U.S. 917, 928, 933, 937, 956 (FOUR CASES); 342 U.S.
842, 844, 856, 874, 880, 895, 899 (TWO CASES), 907 (TWO CASES), 915;
343 U.S. 917 (TWO CASES), 931, 932, 952, 959 (TWO CASES), 989 (THREE
CASES); 344 U.S.  848, 849, 850 (TWO CASES), 882, 905; 345 U.S. 914,
931 (TWO CASES), 937 (TWO CASES), 945, 960, 961, 971, 1003, 1004; 346
U.S. 841, 843 (TWO CASES, TOTAL OF THREE PETITIONS), 880 (THREE CASES),
881, 904, 905 (TWO CASES), 917, 918; 347 U.S. 908 (TWO CASES), 911 (TWO
CASES), 924 (THREE CASES), 940, 1007 (THREE CASES), 1021; 348 U.S. 851
(TWO CASES), 853 (TWO CASES), 889, 904, 932, 939 (THREE CASES), 940,
960 (TWO CASES); 349 U.S. 917, 925, 948, 969 (TWO CASES); 350 U.S. 413,
811, 854, 856, 919, 920, 955, 960, 976; 351 U.S. 183, 915 (TWO CASES),
928, 929, 958, 990; 352 U.S. 860, 861 (FOUR CASES), 886, 913, 950, 977
(TWO CASES), 1019, 1023; 353 U.S. 918, 921. 

FN19  SEE 348 U.S. 851 (TWO CASES), 853 (TWO CASES), 889, 932, 939
(THREE CASES), 940, 960 (TWO CASES); 349 U.S. 917, 925, 948, 969 (TWO
CASES); 350 U.S. 854, 920, 955, 960, 976; 351 U.S. 915 (TWO CASES),
928, 929, 958, 990; 352 U.S. 860, 861 (THREE CASES), 886, 913, 977 (TWO
CASES), 1019, 1023; 353 U.S. 918, 921. 

FN20  AS TO BERNSTEIN AND MEKOLICHICK, SEE NOTE 17, SUPRA.
..END :











GUSS, DBA PHOTO SOUND PRODUCTS MANUFACTURING CO., V. UTAH LABOR
RELATIONS BOARD 353 U.S. 1 


NO. 280.  ARGUED JANUARY 16, 1957 - DECIDED MARCH 25, 1957 - 5 UTAH 2D
68, 296 P.2D 733, REVERSED. 


BY VESTING IN THE NATIONAL LABOR RELATIONS BOARD JURISDICTION OVER
LABOR RELATIONS MATTERS AFFECTING INTERSTATE COMMERCE, CONGRESS HAS
COMPLETELY DISPLACED STATE POWER TO DEAL WITH SUCH MATTERS WHERE THE
BOARD HAS DECLINED TO EXERCISE ITS JURISDICTION BUT HAS NOT CEDED
JURISDICTION TO A STATE AGENCY PURSUANT TO THE PROVISO TO SEC. 10(A) OF
THE NATIONAL LABOR RELATIONS ACT.  PP. 2-12. 

(A)  BY THE NATIONAL LABOR RELATIONS ACT, CONGRESS MEANT TO REACH TO
THE FULL EXTENT OF ITS POWER UNDER THE COMMERCE CLAUSE.  P. 3. 

(B)  AN AGREEMENT CEDING JURISDICTION TO A STATE AGENCY UNDER SEC.
10(A) OF THE NATIONAL LABOR RELATIONS ACT IS THE EXCLUSIVE MEANS
WHEREBY STATES MAY BE ENABLED TO ACT CONCERNING MATTERS WHICH CONGRESS
HAS ENTRUSTED TO THE NATIONAL LABOR RELATIONS BOARD.  PP. 6-10. 

(C)  NOT ONLY WAS THERE A GENERAL INTENT ON THE PART OF CONGRESS TO
PRE-EMPT THE FIELD OF LABOR PRACTICES AFFECTING INTERSTATE COMMERCE,
BUT ALSO THE PROVISO TO SEC. 10(A) CARRIES AN INESCAPABLE IMPLICATION
OF EXCLUSIVENESS.  P. 10. 

(D)  SINCE THE POWER OF CONGRESS IN THE AREA OF COMMERCE AMONG THE
STATES IS PLENARY, ITS JUDGMENT IN FAVOR OF UNIFORMITY MUST BE
RESPECTED, WHATEVER POLICY OBJECTIONS THERE MAY BE TO THE CREATION OF A
NO-MAN'S-LAND IN WHICH LABOR DISPUTES WILL NOT BE REGULATED BY ANY
FEDERAL OR STATE AGENCY OR COURT.  PP. 10-12. 

GUSS, DOING BUSINESS AS PHOTO SOUND PRODUCTS MANUFACTURING CO., V. UTAH
LABOR RELATIONS BOARD. 

APPEAL FROM THE SUPREME COURT OF UTAH. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS APPEAL AND BY NO. 41, POST, P. 20, AND
NO. 50, POST, P. 26, ALSO DECIDED THIS DAY, IS WHETHER CONGRESS, BY
VESTING IN THE NATIONAL LABOR RELATIONS BOARD JURISDICTION OVER LABOR
RELATIONS MATTERS AFFECTING INTERSTATE COMMERCE, HAS COMPLETELY
DISPLACED STATE POWER TO DEAL WITH SUCH MATTERS WHERE THE BOARD HAS
DECLINED OR OBVIOUSLY WOULD DECLINE TO EXERCISE ITS JURISDICTION BUT
HAS NOT CEDED JURISDICTION PURSUANT TO THE PROVISO TO SEC. 10(A) OF THE
NATIONAL LABOR RELATIONS ACT.  (FN1)  IT IS A QUESTION WE LEFT OPEN IN
BUILDING TRADES COUNCIL V. KINARD CONSTRUCTION CO., 346 U.S. 933. 

SOME BACKGROUND IS NECESSARY FOR AN UNDERSTANDING OF THIS PROBLEM IN
FEDERAL-STATE RELATIONS AND HOW IT ASSUMED ITS PRESENT IMPORTANCE. 
SINCE IT WAS FIRST ENACTED IN 1935, THE NATIONAL LABOR RELATIONS ACT
(FN2) HAS EMPOWERED THE NATIONAL LABOR RELATIONS BOARD "TO PREVENT ANY
PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE  ...  DEFINED BY THE
ACT AFFECTING COMMERCE."  (FN3)  BY THIS LANGUAGE AND BY THE DEFINITION
OF "AFFECTING COMMERCE" ELSEWHERE IN THE ACT, (FN4) CONGRESS MEANT TO
REACH TO THE FULL EXTENT OF ITS POWER UNDER THE COMMERCE CLAUSE.  LABOR
BOARD V. FAINBLATT, 306 U.S. 601, 606-607.  THE BOARD, HOWEVER, HAS
NEVER EXERCISED THE FULL MEASURE OF ITS JURISDICTION.  FOR A NUMBER OF
YEARS, THE BOARD DECIDED CASE-BY-CASE WHETHER TO TAKE JURISDICTION.  IN
1950, CONCLUDING THAT "EXPERIENCE WARRANTS THE ESTABLISHMENT AND
ANNOUNCEMENT OF CERTAIN STANDARDS" TO GOVERN THE EXERCISE OF ITS
JURISDICTION, HOLLOW TREE LUMBER CO., 91 N.L.R.B. 635, 636, THE BOARD
PUBLISHED STANDARDS, LARGELY IN TERMS OF YEARLY DOLLAR AMOUNTS OF
INTERSTATE INFLOW AND OUTFLOW.  (FN5)  IN 1954, A SHARPLY DIVIDED
BOARD, SEE BREEDING TRANSFER CO., 110 N.L.R.B. 493, REVISED THE
JURISDICTIONAL STANDARDS UPWARD.  (FN6)  THIS COURT HAS NEVER PASSED
AND WE DO NOT PASS TODAY UPON THE VALIDITY OF ANY PARTICULAR
DECLINATION OF JURISDICTION BY THE BOARD OR ANY SET OF JURISDICTIONAL
STANDARDS.  (FN7) 

HOW MANY LABOR DISPUTES THE BOARD'S 1954 STANDARDS LEAVE IN THE
"TWILIGHT ZONE" BETWEEN EXERCISED FEDERAL JURISDICTION AND UNQUESTIONED
STATE JURISDICTION IS NOT KNOWN.  (FN8)  IN ANY CASE, THERE HAS BEEN
RECENTLY A SUBSTANTIAL VOLUME OF LITIGATION RAISING THE QUESTION STATED
AT THE BEGINNING OF THIS OPINION, OF WHICH THIS CASE IS AN EXAMPLE. 
(FN9) 

APPELLANT, DOING BUSINESS IN SALT LAKE CITY, UTAH, MANUFACTURES
SPECIALIZED PHOTOGRAPHIC EQUIPMENT FOR THE AIR FORCE ON A CONTRACT
BASIS.  TO FULFILL HIS GOVERNMENT CONTRACTS HE PURCHASED MATERIALS FROM
OUTSIDE UTAH IN AN AMOUNT "A LITTLE LESS THAN $50,000."  FINISHED
PRODUCTS WERE SHIPPED TO AIR FORCE BASES, ONE WITHIN UTAH AND THE
OTHERS OUTSIDE.  IN 1953 THE UNITED STEELWORKERS OF AMERICA FILED WITH
THE NATIONAL LABOR RELATIONS BOARD A PETITION FOR CERTIFICATION OF THAT
UNION AS THE BARGAINING REPRESENTATIVE OF APPELLANT'S EMPLOYEES.  A
CONSENT ELECTION WAS AGREED TO, THE AGREEMENT RECITING THAT APPELLANT
WAS "ENGAGED IN COMMERCE WITHIN THE MEANING OF SECTION 2(6), (7) OF THE
NATIONAL LABOR RELATIONS ACT."  THE UNION WON THE ELECTION AND WAS
CERTIFIED BY THE NATIONAL BOARD AS BARGAINING REPRESENTATIVE.  SHORTLY
THEREAFTER THE UNION FILED WITH THE NATIONAL BOARD CHARGES THAT
APPELLANT HAD ENGAGED IN UNFAIR LABOR PRACTICES PROSCRIBED BY SEC.
8(A)(1), (3) AND (5) OF THE ACT.  (FN10)  MEANWHILE, ON JULY 15, 1954,
THE BOARD PROMULGATED ITS REVISED JURISDICTIONAL STANDARDS.  THE
BOARD'S ACTING REGIONAL DIRECTOR DECLINED TO ISSUE A COMPLAINT.  HE
WROTE ON JULY 21: 

"FURTHER PROCEEDINGS ARE NOT WARRANTED, INASMUCH AS THE OPERATIONS OF
THE COMPANY INVOLVED ARE PREDOMINANTLY LOCAL IN CHARACTER, AND IT DOES
NOT APPEAR THAT IT WOULD EFFECTUATE THE POLICIES OF THE ACT TO EXERCISE
JURISDICTION." 

THE UNION THEREUPON FILED SUBSTANTIALLY THE SAME CHARGES WITH THE
UTAH LABOR RELATIONS BOARD, PURSUANT TO THE UTAH LABOR RELATIONS ACT. 
(FN11)  APPELLANT URGED THAT THE STATE BOARD WAS WITHOUT JURISDICTION
OF A MATTER WITHIN THE JURISDICTION OF THE NATIONAL BOARD.  THE STATE
BOARD, HOWEVER, FOUND IT HAD JURISDICTION AND CONCLUDED ON THE MERITS
THAT APPELLANT HAD ENGAGED IN UNFAIR LABOR PRACTICES AS DEFINED BY THE
UTAH ACT.  IT GRANTED RELIEF THROUGH A REMEDIAL ORDER.  ON A WRIT OF
REVIEW, THE UTAH SUPREME COURT AFFIRMED THE DECISION AND ORDER OF THE
STATE ADMINISTRATIVE AGENCY.  (FN12)  WE NOTED PROBABLE JURISDICTION. 
352 U.S. 817. 

ON THESE FACTS WE START FROM THE FOLLOWING UNCONTROVERTED PREMISES: 

(1)  APPELLANT'S BUSINESS AFFECTS COMMERCE WITHIN THE MEANING OF THE
NATIONAL LABOR RELATIONS ACT AND THE NATIONAL LABOR RELATIONS BOARD HAD
JURISDICTION.  LABOR BOARD V. FAINBLATT, SUPRA. 

(2)  THE NATIONAL ACT EXPRESSLY DEALS WITH THE CONDUCT CHARGED TO
APPELLANT WHICH WAS THE BASIS OF THE STATE TRIBUNALS' ACTIONS. 
THEREFORE, IF THE NATIONAL BOARD HAD NOT DECLINED JURISDICTION, STATE
ACTION WOULD HAVE BEEN PRECLUDED BY OUR DECISION IN GARNER V. TEAMSTERS
UNION, 346 U.S. 485. 

(3)  THE NATIONAL BOARD HAS NOT ENTERED INTO ANY CESSION AGREEMENT
WITH THE UTAH BOARD PURSUANT TO SEC. 10(A) OF THE NATIONAL ACT. 


"THE BOARD IS EMPOWERED, AS HEREINAFTER PROVIDED, TO PREVENT ANY
PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED IN SECTION 8)
AFFECTING COMMERCE.  THIS POWER SHALL NOT BE AFFECTED BY ANY OTHER
MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN OR MAY BE ESTABLISHED
BY AGREEMENT, LAW, OR OTHERWISE: PROVIDED, THAT THE BOARD IS EMPOWERED
BY AGREEMENT WITH ANY AGENCY OF ANY STATE OR TERRITORY TO CEDE TO SUCH
AGENCY JURISDICTION OVER ANY CASES IN ANY INDUSTRY (OTHER THAN MINING,
MANUFACTURING, COMMUNICATIONS, AND TRANSPORTATION EXCEPT WHERE
PREDOMINANTLY LOCAL IN CHARACTER) EVEN THOUGH SUCH CASES MAY INVOLVE
LABOR DISPUTES AFFECTING COMMERCE, UNLESS THE PROVISION OF THE STATE OR
TERRITORIAL STATUTE APPLICABLE TO THE DETERMINATION OF SUCH CASES BY
SUCH AGENCY IS INCONSISTENT WITH THE CORRESPONDING PROVISION OF THIS
ACT OR HAS RECEIVED A CONSTRUCTION INCONSISTENT THEREWITH." 

THE PROVISO TO SEC. 10(A), ITALICIZED IN THE QUOTATION ABOVE, WAS ONE
OF THE TAFT-HARTLEY AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT. 
TIMING AND A REFERENCE IN ONE OF THE COMMITTEE REPORTS INDICATE THAT IT
WAS DRAFTED IN RESPONSE TO THE DECISION OF THIS COURT IN BETHLEHEM
STEEL CO. V. NEW YORK LABOR BOARD, 330 U.S. 767.  (FN13)  IN BETHLEHEM
FOREMEN IN AN INTERPRISE AFFECTING COMMERCE PETITIONED THE NEW YORK
STATE LABOR RELATIONS BOARD FOR CERTIFICATION AS A BARGAINING UNIT. 
AT THAT TIME THE NATIONAL BOARD WAS DECLINING, AS A MATTER OF POLICY,
TO CERTIFY BARGAINING UNITS COMPOSED OF FOREMEN.  THE COURT HELD THAT
THE FEDERAL POLICY AGAINST CERTIFYING FOREMEN'S UNITS MUST PREVAIL. 
HOWEVER, IT TOOK OCCASION TO DISCUSS THE EFFORTS OF THE TWO BOARDS TO
AVOID CONFLICTS OF JURISDICTION. 

"THE NATIONAL AND STATE BOARDS HAVE MADE A COMMENDABLE EFFORT TO
AVOID CONFLICT IN THIS OVERLAPPING STATE OF THE STATUTES.  WE FIND
NOTHING IN THEIR NEGOTIATIONS, HOWEVER, WHICH AFFECTS EITHER THE
CONSTRUCTION OF THE FEDERAL STATUTE OR THE QUESTION OF CONSTITUTIONAL
POWER INSOFAR AS THEY ARE INVOLVED IN THIS CASE, SINCE THE NATIONAL
BOARD MADE NO CONCESSION OR DELEGATION OF POWER TO DEAL WITH THIS
SUBJECT.  THE ELECTION OF THE NATIONAL BOARD TO DECLINE JURISDICTION IN
CERTAIN TYPES OF CASES, FOR BUDGETARY OR OTHER REASONS PRESENTS A
DIFFERENT PROBLEM WHICH WE DO NOT NOW DECIDE."  ID., AT 776. 

THREE JUSTICES WERE LED TO CONCUR SPECIALLY, BECAUSE, AS IT WAS
STATED FOR THE THREE: 

"I READ  ...  THE COURT'S OPINION TO MEAN THAT IT IS BEYOND THE POWER
OF THE NATIONAL BOARD TO AGREE WITH STATE AGENCIES ENFORCING LAWS LIKE
THE WAGNER ACT TO DIVIDE, WITH DUE REGARD TO LOCAL INTERESTS, THE
DOMAIN OVER WHICH CONGRESS HAD GIVEN THE NATIONAL BOARD ABSTRACT
DISCRETION BUT WHICH, PRACTICALLY, CANNOT BE COVERED BY IT ALONE.  IF
SUCH COOPERATIVE AGREEMENTS BETWEEN STATE AND NATIONAL BOARDS ARE
BARRED BECAUSE THE POWER WHICH CONGRESS HAS GRANTED TO THE NATIONAL
BOARD OUSTED OR SUPERSEDED STATE AUTHORITY, I AM UNABLE TO SEE HOW
STATE AUTHORITY CAN REVIVE BECAUSE CONGRESS HAS SEEN FIT TO PUT THE
BOARD ON SHORT RATIONS."  ID., AT 779. 

THUS, IF THE OPINION OF THE COURT DID NOT MAKE MANIFEST, THE
CONCURRING OPINION DID, THAT AFTER BETHLEHEM THERE WAS DOUBT WHETHER A
STATE BOARD COULD ACT EITHER AFTER A FORMAL CESSION BY THE NATIONAL
BOARD OR UPON A DECLINATION OF JURISDICTION "FOR BUDGETARY OR OTHER
REASONS."  WHEN WE READ SEC. 10(A) AGAINST THIS BACKGROUND WE FIND
UNCONVINCING THE ARGUMENT THAT CONGRESS MEANT BY THE PROVISO ONLY TO
MEET THE FIRST PROBLEM, I.E., CESSION OF JURISDICTION OVER CASES THE
NATIONAL BOARD WOULD OTHERWISE HANDLE. 

THE PROVISO IS DIRECTED AT LEAST EQUALLY TO THE TYPE OF CASES WHICH
THE BOARD MIGHT DECLINE "FOR BUDGETARY OR OTHER REASONS" TO HEAR AS TO
THE TYPE OF CASES IT MIGHT WISH TO CEDE TO THE STATES FOR POLICY
REASONS - IF, INDEED, THERE IS ANY DIFFERENCE BETWEEN THE TWO CLASSES. 
CASES IN MINING, MANUFACTURING, COMMUNICATIONS AND TRANSPORTATION CAN
BE CEDED ONLY WHERE THE "INDUSTRY" IS "PREDOMINANTLY LOCAL IN
CHARACTER."  IN OTHER INDUSTRIES, WHICH CONGRESS MIGHT HAVE CONSIDERED
TO BE MORE OR LESS TYPICALLY LOCAL, IT PUT NO SUCH LIMITATION ON THE
BOARD'S POWER.  THE SENATE COMMITTEE SPELLED THE MATTER OUT: 

"THE PROVISO WHICH HAS BEEN ADDED TO THIS SUBSECTION SEC. 10(A)
PERMITS THE NATIONAL BOARD TO ALLOW STATE LABOR-RELATIONS BOARDS TO
TAKE FINAL JURISDICTION OF CASES IN BORDER-LINE INDUSTRIES (I.E.,
BORDER LINE INSOFAR AS INTERSTATE COMMERCE IS CONCERNED), PROVIDED THE
STATE STATUTE CONFORMS TO NATIONAL POLICY."  (FN14) 

THE COMMITTEE MINORITY AGREED AS TO THE PURPOSE OF THE PROVISO AND
AGREED "WITH THE MAJORITY THAT IT IS DESIRABLE THUS TO CLARIFY THE
RELATIONS BETWEEN THE NATIONAL LABOR RELATIONS BOARD AND THE VARIOUS
AGENCIES WHICH STATES HAVE SET UP TO HANDLE SIMILAR PROBLEMS."  (FN15) 

WE HOLD THAT THE PROVISO TO SEC. 10(A) IS THE EXCLUSIVE MEANS WHEREBY
STATES MAY BE ENABLED TO ACT CONCERNING THE MATTERS WHICH CONGRESS HAS
ENTRUSTED TO THE NATIONAL LABOR RELATIONS BOARD.  WE FIND SUPPORT FOR
OUR HOLDING IN PRIOR CASES IN THIS COURT.  IN AMALGAMATED ASSN.  OF
EMPLOYEES V. WISCONSIN BOARD, 340 U.S. 383, 397-398, THE COURT SAID: 

"THE LEGISLATIVE HISTORY OF THE 1947 ACT REFERS TO THE DECISION OF
THIS COURT IN BETHLEHEM STEEL CO. V. NEW YORK LABOR BOARD, 330 U.S. 767
(1947), AND, IN ITS HANDLING OF THE PROBLEMS PRESENTED BY THAT CASE,
CONGRESS DEMONSTRATED THAT IT KNEW HOW TO CEDE JURISDICTION TO THE
STATES.  CONGRESS KNEW FULL WELL THAT ITS LABOR LEGISLATION 'PREEMPTS
THE FIELD THAT THE ACT COVERS INSOFAR AS COMMERCE WITHIN THE MEANING OF
THE ACT IS CONCERNED' AND DEMONSTRATED ITS ABILITY TO SPELL OUT WITH
PARTICULARITY THOSE AREAS IN WHICH IT DESIRED STATE REGULATION TO BE
OPERATIVE." 

IN A FOOTNOTE TO THE FIRST SENTENCE QUOTED ABOVE THE COURT CITED SEC.
10(A) AND DESCRIBED ITS AUTHORIZATION TO CEDE JURISDICTION ONLY WHERE
THE STATE LAW IS CONSISTENT WITH THE NATIONAL LEGISLATION AS INSURING
"THAT THE NATIONAL LABOR POLICY WILL NOT BE THWARTED EVEN IN THE
PREDOMINANTLY LOCAL ENTERPRISES TO WHICH THE PROVISO APPLIES."  ID., N.
23.  SEE ALSO ALGOMA PLYWOOD & VENEER CO. V. WISCONSIN BOARD, 336 U.S.
301, 313; CALIFORNIA V. ZOOK, 336 U.S. 725, 732. 

OUR READING OF SEC. 10(A) FORCLOSES THE ARGUMENT BASED UPON SUCH
CASES AS WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79, AND MISSOURI PACIFIC
R. CO. V. LARABEE FLOUR MILLS CO., 211 U.S. 612, THAT "WHERE FEDERAL
POWER HAS BEEN DELEGATED BUT LIES DORMANT AND UNEXERCISED," BETHLEHEM
STEEL CO. V. NEW YORK LABOR BOARD, SUPRA, AT 775, THE STATES' POWER TO
ACT WITH RESPECT TO MATTERS OF LOCAL CONCERN IS NOT NECESSARILY
SUPERSEDED.  BUT IN EACH CASE THE QUESTION IS ONE OF CONGRESSIONAL
INTENT.  COMPARE WELCH CO. V. NEW HAMPSHIRE, SUPRA, WITH NAPIER V.
ATLANTIC COAST LINE R. CO., 272 U.S. 605.  AND HERE WE FIND NOT ONLY A
GENERAL INTENT TO PRE-EMPT THE FIELD BUT ALSO THE PROVISO TO SEC.
10(A), WITH ITS INESCAPABLE IMPLICATION OF EXCLUSIVENESS. 

WE ARE TOLD BY APPELLEE THAT TO DENY THE STATE JURISDICTION HERE WILL
CREATE A VAST NO-MAN'S-LAND, SUBJECT TO REGULATION BY NO AGENCY OR
COURT.  WE ARE TOLD BY APPELLANT THAT TO GRANT JURISDICTION WOULD
PRODUCE CONFUSION AND CONFLICTS WITH FEDERAL POLICY.  UNFORTUNATELY,
BOTH MAY BE RIGHT.  WE BELIEVE, HOWEVER, THAT CONGRESS HAS EXPRESSED
ITS JUDGMENT IN FAVOR OF UNIFORMITY.  SINCE CONGRESS' POWER IN THE AREA
OF COMMERCE AMONG THE STATES IS PLENARY, ITS JUDGMENT MUST BE RESPECTED
WHATEVER POLICY OBJECTIONS THERE MAY BE TO CREATION OF A NO-MAN'S
LAND. 

CONGRESS IS FREE TO CHANGE THE SITUATION AT WILL.  IN 1954 THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE RECOGNIZED THE EXISTENCE OF A NO
MAN'S-LAND AND PROPOSED AN AMENDMENT WHICH WOULD HAVE EMPOWERED STATE
COURTS AND AGENCIES TO ACT UPON THE NATIONAL BOARD'S DECLINATION OF
JURISDICTION.  (FN16)  THE NATIONAL LABOR RELATIONS BOARD CAN GREATLY
REDUCE THE AREA OF THE NO-MAN'S-LAND BY REASSERTING ITS JURISDICTION
AND, WHERE STATES HAVE BROUGHT THEIR LABOR LAWS INTO CONFORMITY WITH
FEDERAL POLICY, BY CEDING JURISDICTION UNDER SEC. 10(A).  (FN17)  THE
TESTIMONY GIVEN BY THE CHAIRMAN OF THE BOARD BEFORE THE APPROPRIATIONS
COMMITTEES SHORTLY BEFORE THE 1954 REVISIONS OF THE JURISDICTIONAL
STANDARDS INDICATES THAT ITS REASONS FOR MAKING THAT CHANGE WERE NOT
BASICALLY BUDGETARY.  THEY HAD MORE TO DO WITH THE BOARD'S CONCEPT OF
THE CLASS OF CASES TO WHICH IT SHOULD DEVOTE ITS ATTENTION.  (FN18) 
THE JUDGMENT OF THE SUPREME COURT OF UTAH IS REVERSED.    FN1  61 STAT.
146, 29 U.S.C. SEC. 160(A). 

FN2  49 STAT. 449, AS AMENDED, 61 STAT. 136, 29 U.S.C. SEC. 151 ET
SEQ. 

FN3  SEC. 10(A), 49 STAT. 453, LEFT UNCHANGED IN THIS PARTICULAR BY
THE TAFT-HARTLEY AMENDMENTS, 61 STAT. 146, 29 U.S.C. SEC. 160(A). 

FN4  "THE TERM 'AFFECTING COMMERCE' MEANS IN COMMERCE, OR BURDENING
OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE, OR HAVING LED OR
TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE OR
THE FREE FLOW OF COMMERCE."  SEC. 2(7), 49 STAT. 450, LEFT UNCHANGED BY
THE TAFT-HARTLEY AMENDMENTS, 61 STAT. 138, 29 U.S.C. SEC.  152(7). 

FN5  THE NLRB'S PRESS RELEASE OF OCTOBER 6, 1950, CAN BE FOUND AT 26
LRR MAN.  50. 

FN6  THE NLRB'S PRESS RELEASE OF JULY 15, 1954 CAN BE FOUND AT 34 LRR
MAN.  75. 

FN7  BUT SEE LABOR BOARD V. DENVER BUILDING & CONSTRUCTION TRADES
COUNCIL, 341 U.S. 675, 684. 

FN8  MEMBERS OF THE BOARD DISAGREED AS TO THE IMPACT OF THE
REVISION.  SEE BREEDING TRANSFER CO., 110 N.L.R.B. 493, 498-500, 506
508. 

FN9  AMONG THE CASES IN WHICH COURTS HAVE SUSTAINED STATE
JURISDICTION WHERE THE BOARD DECLINES OR WOULD DECLINE JURISDICTION ARE
GARMON V. SAN DIEGO BUILDING TRADES COUNCIL, 45 CAL. 2D 657, 291 P.2D
1; BUILDING TRADES COUNCIL V. BONITO, 71 NEV. 84, 280 P.2D 295; HAMMER
V. LOCAL 211, UNITED TEXTILE WORKERS, 34 N.J. SUPER.  34, 111 A.2D 308;
DALLAS GENERAL DRIVERS V. JAX BEER CO., 276 S.W.2D 384 (TEX. CIV.
APP.).  ON THE OTHER SIDE ARE RETAIL CLERKS V. YOUR FOOD STORES, 225
F.2D 659; UNIVERSAL CAR & SERVICE CO. V. INTERNATIONAL ASSN. OF
MACHINEST, 35 LRR MAN.  2087 (MICH. CIR. CT.); NEW YORK LABOR BOARD V.
WAGS TRANSPORTATION SYSTEM, 130 N.Y.S.2D 731, AFF'D, 284 APP. DIV. 883,
134 N.Y.S.2D 603. 

FN10  61 STAT. 140, 141, 29 U.S.C. SEC. 158(A)(1), (3), (5). 

FN11  UTAH CODE ANN., 1953, 34-1-1 THROUGH 34-1-15. 

FN12  5 UTAH 2D 68, 296 P.2D 733. 

FN13 THE BETHEHEM DECISION WAS HANDED DOWN APRIL 7, 1947.  THE
PROVISO TO SEC. 10(A) FIRST APPEARED WHEN S. 1126, WHICH CONTAINED THE
SUBSTANCE OF WHAT WAS TO BECOME THE TAFT-HARTLEY ACT, WAS REPORTED OUT
OF COMMITTEE APRIL 17.  SEE S. REP. NO. 105, PT. 2, 80TH CONG., 1ST
SESS.  38. 

FN14  S. REP. NO. 105, 80TH CONG., 1ST SESS. 26. 

FN15  S. REP. NO. 105, PT. 2, 80TH CONG., 1ST SESS. 38.  THE MINORITY
MEMBERS ALSO SAID, "WE THINK THE CLARIFICATION OF RELATIONS BETWEEN THE
FEDERAL AND STATE BOARDS CONTEMPLATED UNDER SECTION 10(A) A WISE
SOLUTION TO A COMPLEX PROBLEM."  ID., AT 41.  SEE ALSO S. REP.  NO.
986, 80TH CONG., 2D SESS. 30-31. 

FN16  "THE EFFECT  ...  OF THE BOARD'S POLICY OF REFUSING TO ASSERT
ITS JURISDICTION HAS BEEN TO CREATE A LEGAL VACUUM OR NO-MAN'S LAND
WITH RESPECT TO CASES OVER WHICH THE BOARD, IN ITS DISCRETION, HAS
REFUSED TO ASSERT JURISDICTION.  IN THESE CASES THE SITUATION SEEMS TO
BE THAT THE BOARD WILL NOT ASSERT JURISDICTION, THE STATES ARE
FORBIDDEN TO DO SO, AND THE INJURED PARTIES ARE DEPRIVED OF ANY FORUM
IN WHICH TO SEEK RELIEF."  S. REP. NO. 1211, 83RD CONG., 2D SESS. 18. 
THE MINORITY AGREED THAT "WHEN THE FEDERAL BOARD REFUSES TO TAKE A CASE
WITHIN ITS JURISDICTION, THE STATE AGENCIES OR COURTS ARE NEVERTHELESS
WITHOUT POWER TO TAKE JURISDICTION, SINCE THE DISPUTE IS COVERED BY THE
FEDERAL ACT, EVEN THOUGH THE FEDERAL BOARD DECLINES TO APPLY THE ACT. 
THERE IS THUS A HIATUS - A NO MAN'S LAND - IN WHICH THE FEDERAL BOARD
DECLINES TO EXERCISE ITS JURISDICTION AND THE STATE AGENCIES AND COURTS
HAVE NO JURISDICTION."  ID., PT. 2, P. 14.  THE COMMITTEE'S BILL, S.
2650, WAS RECOMMITTED.  100 CONG. REC. 6203. 

FN17  THE NATIONAL LABOR RELATIONS BOARD HAS INFORMED US IN ITS BRIEF
AMICUS CURIAE IN THESE CASES THAT IT HAS BEEN UNABLE, BECAUSE OF THE
CONDITIONS PRESCRIBED BY THE PROVISO TO SEC. 10(A), TO CONSUMMATE ANY
CESSION AGREEMENTS. 

FN18  HEARINGS BEFORE SUBCOMMITTEE OF HOUSE COMMITTEE ON
APPROPRIATIONS, DEPARTMENT OF LABOR AND RELATED INDEPENDENT AGENCIES,
83D CONG., 2D SESS. 309, 315, 323. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE CLARK JOINS, DISSENTING.* 

*NOTE:  THIS DISSENTING OPINION APPLIES ALSO TO NO. 41, AMALGAMATED
MEAT CUTTERS V. FAIRLAWN MEATS, INC., POST, P. 20, AND NO. 50, SAN
DIEGO BUILDING TRADES COUNCIL V. GARMON, POST, P. 26. 

I BELIEVE THE COURT IS MISTAKEN IN ITS INTERPRETATION OF THE PROVISO
WHICH CONGRESS ADDED TO SEC. 10(A) OF THE NATIONAL LABOR RELATIONS ACT
IN 1947.  (FN1)  IT IS MY VIEW THAT THE PROVISO WAS ADDED MERELY TO
MAKE IT CLEAR THAT THE NATIONAL LABOR RELATIONS BOARD HAD THE POWER, BY
MAKING SPECIFIC AGREEMENTS, TO CEDE JURISDICTION TO STATE OR
TERRITORIAL AGENCIES OVER CERTAIN LABOR DISPUTES.  CONGRESS SOUGHT
THEREBY TO FACILITATE STATE COOPERATION IN THE SUPERVISION OF LABOR
PRACTICES AFFECTING INTERSTATE COMMERCE.  THE COURT IS NOT JUSTIFIED IN
INTERPRETING THIS ACTION AS EVIDENCING AN UNEXPRESSED AND SWEEPING
TERMINATION OF THE STATES' PRE-EXISTING POWER TO DEAL WITH LABOR
MATTERS OVER WHICH THE BOARD, FOR BUDGETARY OR OTHER ADMINISTRATIVE
REASONS, HAS DECLINED, OR OBVIOUSLY WOULD DECLINE, TO EXERCISE ITS FULL
JURISDICTION. 

THE LABOR ACTS OF 1935 AND 1947 GRANTED TO THE BOARD EXTENSIVE
JURISDICTION OVER LABOR CONTROVERSIES AFFECTING INTERSTATE COMMERCE BUT
NEITHER ACT REQUIRED THE BOARD TO ASSERT AT ALL TIMES THE FULL MEASURE
OF ITS JURISDICTION.  IN EACH ACT THE FIRST SENTENCE OF SEC. 10(A)
"EMPOWERED," BUT DID NOT DIRECT, THE BOARD TO PREVENT UNFAIR LABOR
PRACTICES.  LIKEWISE, THE FIRST SENTENCE OF SEC. 10(B) GRANTED THE
"POWER," INSTEAD OF IMPOSING THE DUTY, TO ISSUE COMPLAINTS UPON RECEIPT
OF APPROPRIATE CHARGES.  (FN2)  THE BOARD IS NOT A COURT WHOSE
JURISDICTION OVER VIOLATIONS OF PRIVATE RIGHTS MUST BE EXERCISED.  IT
IS AN ADMINISTRATIVE AGENCY WHOSE FUNCTION IS TO ADJUDICATE PUBLIC
RIGHTS IN A MANNER THAT WILL EFFECTUATE THE POLICIES OF THE ACT.  SEE
AMALGAMATED UTILITY WORKERS V. CONSOLIDATED EDISON CO., 309 U.S. 261. 

FROM THE BEGINNING, BUDGETARY LIMITATIONS AND OTHER ADMINISTRATIVE
CONSIDERATIONS HAVE PREVENTED THE BOARD FROM EXERCISING JURISDICTION
OVER ALL CASES IN WHICH INTERSTATE COMMERCE WAS AFFECTED.  CONGRESS
KNEW THIS WHEN, IN 1947, IT LEFT UNCHANGED THE DISCRETIONARY LANGUAGE
OF SEC. 10 AND ADDED THE PROVISO TO SEC. 10(A).  CONGRESS HAS
CONSISTENTLY REFRAINED FROM APPROPRIATING FUNDS SUFFICIENT TO PERMIT
THE BOARD TO ENTERTAIN ALL COMPLAINTS WITHIN ITS JURISDICTION.  IN
RECENT YEARS CONGRESS HAS REPEATEDLY RECOGNIZED THE BOARD'S
JURISDICTIONAL PRACTICE.  (FN3)  IN LABOR BOARD V. DENVER BLDG.
COUNCIL, 341 U.S. 675, 684, THIS COURT SAID THAT "EVEN WHEN THE EFFECT
OF ACTIVITIES ON INTERSTATE COMMERCE IS SUFFICIENT TO ENABLE THE BOARD
TO TAKE JURISDICTION OF A COMPLAINT, THE BOARD SOMETIMES PROPERLY
DECLINES TO DO SO, STATING THAT THE POLICIES OF THE ACT WOULD NOT BE
EFFECTUATED BY ITS ASSERTION OF JURISDICTION IN THAT CASE."  COURTS OF
APPEALS HAVE APPROVED THE BOARD'S PRACTICE  (FN4)  AND NONE OF THE
PARTIES TO THE INSTANT CASES QUESTION IT. 

UNLESS RESTRICTED BY THE PROVISO ADDED TO SEC. 10(A), THERE IS LITTLE
DOUBT THAT THE STATES HAVE THE NECESSARY POWER TO ACT IN LABOR
CONTROVERSIES WITHIN THEIR BORDERS, EVEN WHEN INTERSTATE COMMERCE IS
AFFECTED, PROVIDED THE FEDERAL GOVERNMENT HAS NOT OCCUPIED THE FIELD
AND THE NATIONAL BOARD HAS NOT TAKEN JURISDICTION.  WHERE THE BOARD HAS
DECLINED, OR OBVIOUSLY WOULD DECLINE, TO TAKE JURISDICTION, THEN
FEDERAL POWER LIES "DORMANT AND UNEXERCISED."  BETHLEHEM STEEL CO. V.
NEW YORK LABOR BOARD, 330 U.S. 767, 775.  UNLESS THE PROVISO STANDS IN
THEIR WAY, THE STATES MAY THEN EXERCISE JURISDICTION SINCE THEIR ACTION
WILL NOT CONFLICT WITH THE BOARD'S ADMINISTRATION OF THE ACT.  (FN5)
SUBSTANTIVE PROVISIONS OF THE ACT MAY LIMIT THE ACTION OF THE STATES. 
SEE UNITED MINE WORKERS V. ARKANSAS OAK FLOORING CO., 351 U.S. 62, 75. 
BUT THE STATES ARE NOT DEPRIVED OF ALL POWER TO ACT.  (FN6) 

BY THIS DECISION THE COURT RESTRICTS THE POWER OF THE STATES TO THOSE
LABOR DISPUTES OVER WHICH THE NATIONAL BOARD EXPRESSLY CEDES ITS
JURISDICTION TO THE APPROPRIATE STATE AGENCIES.  HOWEVER, THE PROVISO'S
REQUIREMENTS ARE SO HIGHLY RESTRICTIVE THAT NOT A SINGLE CESSION HAS
BEEN MADE UNDER IT. (FN7)  THE RESULT OF THIS DECISION IS THE CREATION
OF AN EXTENSIVE NO MAN'S LAND WITHIN WHICH NO FEDERAL OR STATE AGENCY
OR COURT IS EMPOWERED TO DEAL WITH LABOR CONTROVERSIES.  IT IS
DIFFICULT TO BELIEVE THAT CONGRESS, SUB SILENTIO, INTENDED TO TAKE A
STEP BACKWARD IN THE FIELD OF LABOR RELATIONS. 

THE IMMEDIATE OCCASION THAT LED TO THE ENACTMENT OF THE PROVISO
THROWS LIGHT ON ITS PROPER INTERPRETATION.  THAT OCCASION WAS THIS
COURT'S DECISION IN THE BETHLEHEM CASE, SUPRA, WHERE IT WAS HELD THAT A
STATE BOARD DID NOT HAVE JURISDICTION TO CERTIFY A UNION OF FOREMEN AS
A COLLECTIVE-BARGAINING AGENCY BECAUSE THE NATIONAL BOARD, BY ASSERTING
GENERAL JURISDICTION OVER FOREMEN'S UNIONS, HAD OCCUPIED THE FIELD. 
(FN8)  ALTHOUGH AN AGREEMENT HAD BEEN NEGOTIATED BETWEEN THE NATIONAL
BOARD AND THE STATE BOARD CEDING JURISDICTION OVER CERTAIN LABOR
MATTERS, THIS COURT CONCLUDED THAT THE AGREEMENT DID NOT CEDE
JURISDICTION OVER FOREMEN'S UNIONS.  THREE JUSTICES DECRIED CERTAIN
OVERTONES THEY FOUND IN THE OPINION OF THE COURT TO THE EFFECT THAT THE
NATIONAL BOARD LACKED AUTHORITY TO CEDE JURISDICTION OVER PREDOMINANTLY
LOCAL LABOR MATTERS BY AGREEMENT WITH STATE AGENCIES.  IT WAS TO
CLARIFY THE POWER OF THE NATIONAL BOARD TO MAKE SUCH A CESSION THAT THE
PROVISO WAS ADDED TO SEC. 10(A). 

WHILE THE PROVISO THUS EVIDENCED A CONGRESSIONAL PURPOSE TO ENCOURAGE
STATE ACTION, THERE IS NO INDICATION THAT IT WAS INTENDED TO WIPE OUT,
BY IMPLICATION, THE STATES' RECOGNIZED POWER TO ACT WHEN THE NATIONAL
BOARD DECLINED TO TAKE JURISDICTION.  NEITHER THE LANGUAGE OF THE
PROVISO NOR ITS LEGISLATIVE HISTORY DISCLOSES A CONSCIOUS CONGRESSIONAL
INTENT TO ELIMINATE STATE AUTHORITY WHEN THE NATIONAL BOARD HAS
DECLINED TO ACT.  UNEQUIVOCAL LEGISLATIVE HISTORY WOULD BE NECESSARY TO
SUSTAIN A CONCLUSION THAT CONGRESS INTENDED SUCH A DRASTIC RESULT.  IN
THE BETHLEHEM CASE, SUPRA, THE COURT DID NOT QUESTION THE AUTHORITY OF
THE STATES TO ACT WHEN THE BOARD, FOR BUDGETARY OR OTHER ADMINISTRATIVE
REASONS, DECLINED TO EXERCISE ITS FULL JURISDICTION.  THE COURT
EXPRESSLY REFRAINED FROM PASSING ON THAT QUESTION  (FN9)  BUT THREE
JUSTICES SAID THAT THEY FOUND IN THE OPINION OF THE COURT A "SUGGESTION
THAT THE NATIONAL BOARD'S DECLINATION OF JURISDICTION 'IN CERTAIN TYPES
OF CASES, FOR BUDEGETARY OR OTHER REASONS' MIGHT LEAVE ROOM FOR THE
STATE IN THOSE SITUATIONS  ...  ."  330  U.S., AT 778. 

AS A MATTER OF FACT, IN 1947, NEARLY 40 STATES LACKED LABOR AGENCIES
AND COMPREHENSIVE LABOR LEGISLATION.  (FN10)  OBVIOUSLY, THOSE STATES
WERE INELIGIBLE TO TAKE ADVANTAGE OF THE PROVISO.  IT IS HARD TO
IMAGINE THAT CONGRESS MEANT TO MAKE THE PROVISO THE EXCLUSIVE CHANNEL
FOR STATE JURISDICTION WHEN SO MANY STATES WOULD BE AUTOMATICALLY
EXCLUDED FROM USING IT.  THE FULL MISSION OF THE PROVISO WAS TO SUPPLY
THE NATIONAL BOARD WITH EXPRESS AUTHORITY TO CEDE JURISDICTION OVER
LABOR DISPUTES BY AGREEMENT WHERE, AS A MATTER OF DELIBERATE JUDGMENT,
IT CONCLUDED THAT DUE REGARD FOR LOCAL INTERESTS MADE THAT COURSE
DESIRABLE.  THE BOARD'S JURISDICTIONAL YARDSTICKS ALWAYS HAVE REFLECTED
ITS NEED TO DISTRIBUTE ITS LIMITED RESOURCES SO AS BEST TO EFFECTUATE
THE POLICIES OF THE ACT.  THE BOARD DOES NOT "CEDE" JURISDICTION; IT
MEERLY ALLOWS THE STATES TO EXERCISE THEIR PRE-EXISTING AUTHORITY. 
(FN11) 

THE COURT'S INTERPRETATION OF THE PROVISO IS CONTRARY TO THE
ESTABLISHED PRACTICE OF THE STATES AND OF THE NATIONAL BOARD, AS WELL
AS TO THE CONSIDERED POSITION TAKEN BY THE BOARD AS AMICUS CURIAE. 
CONGRESS HAS DEMONSTRATED A CONTINUING AND DEEP INTEREST IN PROVIDING
GOVERNMENTAL MACHINERY FOR HANDLING LABOR CONTROVERSIES.  THE CREATION
BY IT OF A LARGE, UNSUPERVISED NO MAN'S LAND FLIES IN THE FACE OF THAT
POLICY.  DUE REGARD FOR OUR FEDERAL SYSTEM SUGGESTS THAT ALL DOUBTS ON
THIS SCORE SHOULD BE RESOLVED IN FAVOR OF A CONCLUSION THAT WOULD NOT
LEAVE THE STATES POWERLESS WHEN THE FEDERAL AGENCY DECLINES TO EXERCISE
ITS JURISDICTION.  AS THREE JUSTICES SAID IN THE BETHLEHEM CASE,
SUPRA: 

"SINCE CONGRESS CAN, IF IT CHOOSES, ENTIRELY DISPLACE THE STATES TO
THE FULL EXTENT OF THE FAR-REACHING COMMERCE CLAUSE, CONGRESS NEEDS NO
HELP FROM GENEROUS JUDICIAL IMPLICATIONS TO ACHIEVE THE SUPERSESSION OF
STATE AUTHORITY.  TO CONSTRUE FEDERAL LEGISLATION SO AS NOT NEEDLESSLY
TO FORBID PREEXISTING STATE AUTHORITY IS TO RESPECT OUR FEDERAL
SYSTEM.  ANY INDULGENCE IN CONSTRUCTION SHOULD BE IN FAVOR OF THE
STATES, BECAUSE CONGRESS CAN SPEAK WITH DRASTIC CLARITY WHENEVER IT
CHOOSES TO ASSURE FULL FEDERAL AUTHORITY, COMPLETELY DISPLACING THE
STATES."  330 U.S., AT 780. 

I WOULD SUSTAIN THE JURISDICTION OF THE RESPECTIVE STATES IN THESE
CASES. 

FN1  SECTION 10(A) OF THE NATIONAL LABOR RELATIONS ACT OF 1935, 49
STAT. 453, WAS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT OF 1947 BY
THE ADDITION OF THE PROVISO SHOWN BELOW: 

"SEC. 10(A) THE BOARD IS EMPOWERED, AS HEREINAFTER PROVIDED, TO
PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED
IN SECTION 8) AFFECTING COMMERCE.  THIS POWER SHALL NOT BE AFFECTED BY
ANY OTHER MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN OR MAY BE
ESTABLISHED BY AGREEMENT, LAW, OR OTHERWISE:  PROVIDED, THAT THE BOARD
IS EMPOWERED BY AGREEMENT WITH ANY AGENCY OF ANY STATE OR TERRITORY TO
CEDE TO SUCH AGENCY JURISDICTION OVER ANY CASES IN ANY INDUSTRY (OTHER
THAN MINING, MANUFACTURING, COMMUNICATIONS, AND TRANSPORTATION EXCEPT
WHERE PREDOMINANTLY LOCAL IN CHARACTER) EVEN THOUGH SUCH CASES MAY
INVOLVE LABOR DISPUTES AFFECTING COMMERCE, UNLESS THE PROVISION OF THE
STATE OR TERRITORIAL STATUTE APPLICABLE TO THE DETERMINATION OF SUCH
CASES BY SUCH AGENCY IS INCONSISTENT WITH THE CORRESPONDING PROVISION
OF THIS ACT OR HAS RECEIVED A CONSTRUCTION INCONSISTENT THEREWITH."  61
STAT. 146, 29 U.S.C. SEC. 160(A). 

FN2  "(B)  WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN OR
IS ENGAGING IN ANY SUCH UNFAIR LABOR PRACTICE, THE BOARD OR ANY AGENT
OR AGENCY DESIGNATED BY THE BOARD FOR SUCH PURPOSES, 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 OR A MEMBER THEREOF, OR BEFORE A DESIGNATED AGENT OR AGENCY,
AT A PLACE THEREIN FIXED, NOT LESS THAN FIVE DAYS AFTER THE SERVING OF
SAID COMPLAINT  ...  ."  49 STAT. 453, 61 STAT.  146, 29 U.S.C. SEC.
160(B). 

FN3  SEE REPORT OF THE JOINT COMMITTEE ON LABOR-MANAGEMENT RELATIONS,
S. REP. NO. 986, PT. 3, 80TH CONG., 2D SESS. 11-15; S. REP. NO. 99,
81ST CONG., 1ST SESS. 40; H.R. REP. NO. 1852, 81ST CONG., 2D SESS. 10;
HEARINGS BEFORE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE ON S. 249,
PT. 1, 81ST CONG., 1ST SESS. 175-177; HEARINGS BEFORE SENATE COMMITTEE
ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS ON S. RES. 248, 81ST
CONG., 2D SESS. 40, 120. 

FN4  E.G., OPTICAL WORKERS' UNION V. LABOR BOARD, 227 F.2D 687; LOCAL
UNION NO. 12 V. LABOR BOARD, 189 F.2D 1; HALESTON DRUG STORES V. LABOR
BOARD, 187 F.2D 418.  SEE LABOR BOARD V. INDIANA & MICHIGAN ELECTRIC
CO., 318 U.S. 9, 18-19.  THE BOARD DISCUSSES ITS JURISDICTIONAL
PRACTICE IN BREEDING TRANSFER CO., 110 N.L.R.B. 493.  SEE ALSO, NOTE,
DISCRETIONARY ADMINISTRATIVE JURISDICTION OF THE NLRB UNDER THE TAFT
HARTLEY ACT, 62 YALE L.J. 116 (1952). 

FN5  "  ...  THE CARE WE TOOK IN THE GARNER CASE (346 U.S. 485) TO
DEMONSTRATE THE EXISTING CONFLICTS BETWEEN STATE AND FEDERAL
ADMINISTRATIVE REMEDIES IN THAT CASE WAS, ITSELF, A RECOGNITION THAT IF
NO CONFLICT HAD EXISTED, THE STATE PROCEDURE WOULD HAVE SURVIVED." 
UNITED CONSTRUCTION WORKERS V. LABURNUM CONSTRUCTION CORP., 347 U.S.
656, 665.  SEE ALSO, WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, 479
480. 

FN6  SEE SOUTHERN PACIFIC CO. V. ARIZONA EX REL. SULLIVAN, 325 U.S.
761; TERMINAL RAILROAD ASSN. V. BROTHERHOOD OF RAILROAD TRAINMEN, 318
U.S. 1; H.P. WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79; NORTHWESTERN BELL
TELEPHONE CO. V. NEBRASKA RAILWAY COMMISSION, 297 U.S. 471; MISSOURI
PACIFIC R. CO. V. LARABEE FLOUR MILLS CO., 211 U.S. 612. 

FN7  THE NATIONAL LABOR RELATIONS BOARD IN ITS BRIEF FILED IN THESE
CASES STATES THAT: 

"IT SHOULD BE NOTED HERE THAT THE BOARD HAS BEEN UNABLE, BECAUSE OF
THE PRESCRIBED CONDITIONS, TO CONSUMMATE ANY SUCH AGREEMENTS.  CONGRESS
HAS BEEN AWARE OF THIS SITUATION AND CONSIDERED THE FEASIBILITY OF
DELETING THESE CONDITIONS IN ORDER TO REDUCE THE TREMENDOUS VOLUME OF
CASES BROUGHT BEFORE THE BOARD.  S. REP. NO. 986, JOINT COMMITTEE
REPORT, 80TH CONG., 2D SESS., 31 (1948).  CONGRESS, HOWEVER, HAS TAKEN
NO ACTION IN THIS REGARD.  THE ADVOCATES OF FEDERAL PREEMPTION ARGUE
FROM THIS POST-LEGISLATIVE HISTORY THAT CONGRESS HAS THEREBY MANIFESTED
ITS INTENT TO PRECLUDE STATE ACTION IN THE ABSENCE OF CESSION BY THE
BOARD.  PRECISELY WHAT INFERENCE MAY BE DRAWN FROM SUCH CONGRESSIONAL
INACTION IS, IN OUR JUDGMENT, WHOLLY SPECULATIVE." 

FN8  "  ...  IT (THE NATIONAL BOARD) MADE CLEAR THAT ITS REFUSAL TO
DESIGNATE FOREMEN'S BARGAINING UNITS WAS A DETERMINATION AND AN
EXERCISE OF ITS DISCRETION TO DETERMINE THAT SUCH UNITS WERE NOT
APPROPRIATE FOR BARGAINING PURPOSES.  MARYLAND DRYDOCK CO., 49 N.L.R.B.
733.  WE CANNOT, THEREFORE, DEAL WITH THIS AS A CASE WHERE FEDERAL
POWER HAS BEEN DELEGATED BUT LIES DORMANT AND UNEXERCISED. 

     *         *         *         *       * 

"  ...  THE FEDERAL BOARD HAS JURISDICTION OF THE INDUSTRY IN WHICH
THESE PARTICULAR EMPLOYERS ARE ENGAGED AND HAS ASSERTED CONTROL OF
THEIR LABOR RELATIONS IN GENERAL.  IT ASSERTS, AND RIGHTFULLY SO, UNDER
OUR DECISION IN THE PACKARD CASE, SUPRA (330 U.S. 485), ITS POWER TO
DECIDE WHETHER THESE FOREMEN MAY CONSTITUTE THEMSELVES A BARGAINING
UNIT.  WE DO NOT BELIEVE THIS LEAVES ROOM FOR THE OPERATION OF THE
STATE AUTHORITY ASSERTED."  330 U.S., AT 775, 776. 

FN9  "THE NATIONAL AND STATE BOARDS HAVE MADE A COMMENDABLE EFFORT TO
AVOID CONFLICT IN THIS OVERLAPPING STATE OF THE STATUTES.  WE FIND
NOTHING IN THEIR NEGOTIATIONS, HOWEVER, WHICH AFFECTS EITHER THE
CONSTRUCTION OF THE FEDERAL STATUTE OR THE QUESTION OF CONSTITUTIONAL
POWER INSOFAR AS THEY ARE INVOLVED IN THIS CASE, SINCE THE NATIONAL
BOARD MADE NO CONCESSION OR DELEGATION OF POWER TO DEAL WITH THIS
SUBJECT.  THE ELECTION OF THE NATIONAL BOARD TO DECLINE JURISDICTION IN
CERTAIN TYPES OF CASES, FOR BUDGETARY OR OTHER REASONS PRESENTS A
DIFFERENT PROBLEM WHICH WE DO NOT NOW DECIDE."  330 U.S., AT 776. 

FN10  IN 1947 ONLY 11 STATES HAD COMPREHENSIVE LABOR STATUTES.  OF
THOSE, EIGHT HAD ESTABLISHED AN ADMINISTRATIVE PROCEDURE FOR THE
ADJUDICATION OF UNFAIR LABOR PRACTICES WHILE THREE HAD LEFT THESE
MATTERS TO CONVENTIONAL LAW-ENFORCEMENT AGENCIES - PROSECUTING
ATTORNEYS AND REGULAR COURTS.  SEE KILLINGSWORTH, STATE LABOR RELATIONS
ACTS (1948), 1-3, 111-112.  LABOR LEGISLATION IN THE OTHER 37 STATES
WAS FRAGMENTARY.  KILLINGSWORTH SAID OF THESE LAWS "THAT THEY ARE AIMED
EXCLUSIVELY AT ONE OR A FEW UNION PRACTICES, PLACE FEW OR NO
RESTRICTIONS ON EMPLOYERS, AND DO NOT ATTEMPT TO ESTABLISH A
COMPREHENSIVE LABOR RELATIONS POLICY."  ID., AT 3. 

FN11  WHEN IN 1954 THE BOARD REVISED UPWARD ITS JURISDICTIONAL
YARDSTICKS, IT STATED THAT "A DESIRE TO ESTABLISH BROADER STATE
JURISDICTION IS IN NO WISE A FACTOR IN OUR DECISION."  BREEDING
TRANSFER CO., 110 N.L.R.B. 493, 497. 
..END :
























AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL NO.
427, AFL, V. FAIRLAWN MEATS, INC. 353 U.S. 20 


NO. 41.  ARGUED JANUARY 16, 1957 - DECIDED MARCH 25, 1957 - 164 OHIO ST.
285, 130 N.E.2D 237, JUDGMENT VACATED AND CAUSE REMANDED. 


FAIRLAWN OPERATES THREE MEAT MARKETS IN THE VICINITY OF AKRON, OHIO. 
ALL OF ITS SALES ARE INTRASTATE.  OF ITS PURCHASES AMOUNTING TO ABOUT
$900,000 IN ONE YEAR, ABOUT $100,000 CAME FROM OUT OF THE STATE
DIRECTLY AND AS MUCH OR MORE INDIRECTLY.  AFTER A LABOR UNION HAD
ATTEMPTED UNSUCCESSFULLY TO ORGANIZE FAIRLAWN'S EMPLOYEES AND FAIRLAWN
HAD REFUSED TO RECOGNIZE THE UNION AS THE BARGAINING AGENT FOR ITS
EMPLOYEES, THE UNION PICKETED FAIRLAWN'S STORES AND PUT SOME SECONDARY
PRESSURE ON ITS SUPPLIERS.  UPON FAIRLAWN'S COMPLAINT, AN OHIO STATE
COURT ENJOINED THE UNION FROM PICKETING FAIRLAWN, FROM TRESPASSING ON
ITS PREMISES AND FROM EXERTING SECONDARY PRESSURE ON ITS SUPPLIERS.  NO
EFFORT WAS MADE TO INVOKE THE JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD; BUT IT IS ASSUMED THAT THE BOARD WOULD HAVE DECLINED
JURISDICTION AND THAT IT HAD NOT CEDED JURISDICTION UNDER SEC. 10(A) OF
THE NATIONAL LABOR RELATIONS ACT.  HELD:  THE LABOR DISPUTE WAS WITHIN
THE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD; THE STATE COURT
WAS WITHOUT JURISDICTION OVER THE LABOR DISPUTE; AND THE JUDGMENT IS
VACATED.  PP. 22-25. 

(A)  FAIRLAWN'S INTERSTATE PURCHASES WERE NOT SO NEGLIGIBLE THAT ITS
BUSINESS CANNOT BE SAID TO AFFECT INTERSTATE COMMERCE WITHIN THE
MEANING OF SEC. 2(7) OF THE NATIONAL LABOR RELATIONS ACT.  P. 22. 

(B)  SINCE THE PROVISO TO SEC. 10(A) OF THE NATIONAL LABOR RELATIONS
ACT OPERATES TO EXCLUDE STATE LABOR BOARDS FROM DISPUTES WITHIN THE
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD IN THE ABSENCE OF A
CESSION AGREEMENT, GUSS V. UTAH LABOR RELATIONS BOARD, ANTE, P. 1, IT
MUST ALSO EXCLUDE STATE COURTS.  P. 23. 

(C)  CONGRESS DID NOT LEAVE IT TO STATE LABOR AGENCIES, TO STATE
COURTS OR TO THIS COURT TO DECIDE HOW CONSISTENT WITH FEDERAL POLICY
STATE LAW MUST BE.  THE POWER TO MAKE THAT DECISION IN THE FIRST
INSTANCE WAS GIVEN TO THE NATIONAL LABOR RELATIONS BOARD, GUIDED BY THE
LANGUAGE OF THE PROVISO TO SEC. 10(A).  PP. 23-24. 

(D)  SINCE THE UNITARY JUDGMENT OF THE OHIO COURT WAS BASED ON THE
ERRONEOUS PREMISE THAT IT HAD POWER TO REACH THE UNION'S CONDUCT IN ITS
ENTIRETY, IT IS IMPOSSIBLE TO KNOW WHETHER ITS CONCLUSION ON THE MERE
ACT OF TRESPASS WOULD HAVE BEEN THE SAME OUTSIDE OF THE CONTEXT OF THE
UNION'S OTHER CONDUCT.  PP. 24-25. 

AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL NO.
427, AFL, ET AL. V. FAIRLAWN MEATS, INC. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT OPERATES THREE MEAT MARKETS IN THE VICINITY OF AKRON,
OHIO.  ALL OF ITS SALES ARE INTRASTATE, BUT OF ITS PURCHASES IN ONE
YEAR TOTALING NOT QUITE $900,000, SLIGHTLY MORE THAN $100,000 WORTH
CAME FROM OUTSIDE OHIO DIRECTLY AND AS MUCH OR MORE INDIRECTLY. 
PETITIONER UNION, AFTER AN UNSUCCESSFUL ATTEMPT TO ORGANIZE
RESPONDENT'S EMPLOYEES, ASKED RESPONDENT FOR RECOGNITION AS THEIR
BARGAINING AGENT AND FOR A UNION SHOP CONTRACT.  WHEN RESPONDENT
REFUSED TO ENTER INTO SUCH A CONTRACT, THE UNION PICKETED RESPONDENT'S
STORES AND PUT SOME SECONDARY PRESSURE ON ITS SUPPLIERS.   UPON
RESPONDENT'S COMPLAINT, THE COURT OF COMMON PLEAS ENJOINED THE UNION
FROM PICKETING RESPONDENT, FROM TRESPASSING UPON RESPONDENT'S PREMISES
AND FROM EXERTING SECONDARY PRESSURE ON THE SUPPLIERS.  PETITIONERS
OBJECTED THROUGHOUT THAT THE JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD WAS EXCLUSIVE.  ON APPEAL, THE OHIO COURT OF APPEALS
FOUND THAT RESPONDENT'S BUSINESS WAS "PURELY OF A LOCAL CHARACTER" AND
INTERSTATE COMMERCE, THERFORE, WAS NOT BURDENED OR OBSTRUCTED.  THE
COURT OF APPEALS HELD THAT THE UNION'S PICKETING WAS UNLAWFUL ACCORDING
TO OHIO POLICY, AND IT CONTINUED IN EFFECT THE INJUNCTION GRANTED BY
THE COURT OF COMMON PLEAS.  (FN1)  THE OHIO SUPREME COURT DISMISSED AN
APPEAL "FOR THE REASON THAT NO DEBATABLE CONSTITUTIONAL QUESTION IS
INVOLVED."  (FN2)  WE GRANTED CERTIORARI.  351 U.S. 922. 

WE DO NOT AGREE THAT RESPONDENT'S INTERSTATE PURCHASES WERE SO
NEGLIGIBLE THAT ITS BUSINESS CANNOT BE SAID TO AFFECT INTERSTATE
COMMERCE WITHIN THE MEANING OF SEC. 2(7) OF THE NATIONAL LABOR
RELATIONS ACT.  (FN3)  CF. LABOR BOARD V. DENVER BUILDING &
CONSTRUCTION TRADES COUNCIL, 341 U.S. 675, 683-685.  IN THIS CASE,
UNLIKE NO. 280, ANTE, P. 1, AND NO. 50, POST, P. 26, NO EFFORT WAS MADE
TO INVOKE THE JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD. 
ALTHOUGH THE EXTENT OF RESPONDENT'S INTERSTATE ACTIVITY SEEMS GREATER
EVEN THAN THAT IN BUILDING TRADES COUNCIL V. KINARD CONSTRUCTION CO.,
346 U.S. 933, WE WILL ASSUME THAT THIS IS A CASE WHERE IT WAS OBVIOUS
THAT THE BOARD WOULD DECLINE JURISDICTION.  (FN4) 

ON THIS VIEW OF THE CASE, OUR DECISION IN GUSS V. UTAH LABOR
RELATIONS BOARD, ANTE, P. 1, CONTROLS.  IF THE PROVISO TO SEC. 10(A) OF
THE NATIONAL LABOR RELATIONS ACT OPERATES TO EXCLUDE STATE LABOR BOARDS
FROM DISPUTES WITHIN THE NATIONAL BOARD'S JURISDICTION IN THE ABSENCE
OF CESSION AGREEMENT, IT MUST ALSO EXCLUDE STATE COURTS.  SEE GARNER V.
TEAMSTERS UNION, 346 U.S. 485, 491.  THE CONDUCT HERE RESTRAINED - AN
EFFORT BY A UNION NOT REPRESENTING A MAJORITY OF HIS EMPLOYEES TO
COMPEL AN EMPLOYER TO AGREE TO A UNION SHOP CONTRACT - IS CONDUCT OF
WHICH THE NATIONAL ACT HAS TAKEN HOLD.  SEC. 8(B)(2), 61 STAT. 141, 29
U.S.C.  SEC. 158(B)(2).  GARNER V. TEAMSTERS UNION, SUPRA, TEACHES THAT
IN SUCH CIRCUMSTANCES A STATE CANNOT AFFORD A REMEDY PARALLEL TO THAT
PROVIDED BY THE ACT. 

IT IS URGED IN THIS CASE AND ITS COMPANIONS, HOWEVER, THAT STATE
ACTION SHOULD BE PERMITTED WITHIN THE AREA OF COMMERCE WHICH THE
NATIONAL BOARD HAS ELECTED NOT TO ENTER WHEN SUCH ACTION IS CONSISTENT
WITH THE POLICY OF THE NATIONAL ACT.  WE STATED OUR BELIEF IN GUSS V.
UTAH LABOR RELATIONS BOARD, ANTE, AT PP. 10-11, THAT "CONGRESS HAS
EXPRESSED ITS JUDGMENT IN FAVOR OF UNIFORMITY."  WE ADD THAT CONGRESS
DID NOT LEAVE IT TO STATE LABOR AGENCIES, TO STATE COURTS OR TO THIS
COURT TO DECIDE HOW CONSISTENT WITH FEDERAL POLICY STATE LAW MUST BE.
THE POWER TO MAKE THAT DECISION IN THE FIRST INSTANCE WAS GIVEN TO THE
NATIONAL LABOR RELATIONS BOARD, GUIDED BY THE LANGUAGE OF THE PROVISO
TO SEC. 10(A).  THIS CASE IS AN EXCELLENT EXAMPLE OF ONE OF THE REASONS
WHY, IT MAY BE, CONGRESS WAS SPECIFIC IN ITS REQUIREMENT OF
UNIFORMITY.  PETITIONERS HERE CONTEND THAT RESPONDENT WAS GUILTY OF
WHAT WOULD BE UNFAIR LABOR PRACTICES UNDER THE NATIONAL ACT AND THAT
THE OUTCOME OF PROCEEDINGS BEFORE THE NATIONAL BOARD WOULD, FOR THAT
REASON, HAVE BEEN ENTIRELY DIFFERENT FROM THE OUTCOME OF THE
PROCEEDINGS IN THE STATE COURTS.  WITHOUT EXPRESSING ANY OPINION AS TO
WHETHER THE RECORD BEARS OUT ITS FACTUAL CONTENTION, WE NOTE THAT THE
OPINION OF THE OHIO COURT OF APPEALS TAKES NO ACCOUNT OF THE ALLEGED
UNFAIR LABOR PRACTICE ACTIVITY OF THE EMPLOYER.  THUS, IT CANNOT BE
SAID WITH CERTAINTY WHETHER THE STATE COURT'S DECREE IS CONSISTENT WITH
THE NATIONAL ACT. 

ONE FINAL POINT REMAINS TO BE CONSIDERED.  AT TWO OF RESPONDENT'S
STORES, LOCATED IN SUBURBAN SHOPPING CENTERS, THE PICKETING OCCURRED ON
LAND OWNED BY OR LEASED TO RESPONDENT THOUGH OPEN TO THE PUBLIC FOR
ACCESS TO THE STORES.  AS ONE OF THE REASONS FOR FINDING THE PICKETING
UNLAWFUL, THE COURT OF APPEALS RECITED THIS FACT, AND "TRESPASSING UPON
PLAINTIFF'S PROPERTY" IS ONE OF THE ACTIVITIES SPECIFICALLY ENJOINED. 
WHETHER A STATE MAY FRAME AND ENFORCE AN UNJUNCTION AIMED NARROWLY AT A
TRESPASS OF THIS SORT IS A QUESTION THAT IS NOT HERE.  HERE THE UNITARY
JUDGMENT OF THE OHIO COURT WAS BASED ON THE ERRONEOUS PREMISE THAT IT
HAD POWER TO REACH THE UNION'S CONDUCT IN ITS ENTIRETY.  WHETHER ITS
CONCLUSION AS TO THE MERE ACT OF TRESPASS WOULD HAVE BEEN THE SAME
OUTSIDE OF THE CONTEXT OF PETITIONER'S OTHER CONDUCT WE CANNOT KNOW. 
THE JUDGMENT THEREFORE IS VACATED AND THE CASE REMANDED FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  VACATED AND REMANDED. 

FN1  99 OHIO APP. 517, 135 N.E.2D 689. 

FN2  164 OHIO ST. 285, 130 N.E.2D 237. 

FN3  61 STAT. 138, 29 U.S.C. SEC. 152(7). 

FN4  THE BOARD'S CURRENT STANDARDS FOR ASSERTING JURISDICTION OVER
RETAIL STORES CALL FOR ANNUAL DIRECT IMPORTS FROM OUT OF STATE OF
$1,000,000 OR INDIRECT IMPORTS OF $2,000,000.  HOGUE & KNOTT
SUPERMARKETS, 110 N.L.R.B. 543.  WE LEAVE ASIDE THE QUESTION WHETHER
THE PRESENCE OF SECONDARY PRESSURE ON RESPONDENT'S SUPPLIERS WOULD HAVE
AFFECTED THE BOARD'S DECISION WHETHER TO TAKE JURISDICTION. 
..END :











SAN DIEGO BUILDING TRADES COUNCIL V. GARMON 353 U.S. 26 


NO. 50.  ARGUED JANUARY 16, 1957 - DECIDED MARCH 25, 1957 - 45 CAL. 2D
657, 291 P.2D 1, JUDGMENT VACATED AND CAUSE REMANDED. 


RESPONDENTS OPERATE TWO RETAIL LUMBER YARDS IN CALIFORNIA AND ANNUALLY
BUY FROM OUTSIDE THE STATE ABOUT $250,000 WORTH OF MATERIAL FOR
RESALE.  PETITIONER UNIONS ASKED RESPONDENTS TO SIGN A LABOR CONTRACT
INCLUDING A UNION SHOP PROVISION, THOUGH THE UNIONS HAD NOT BEEN
SELECTED BY A MAJORITY OF RESPONDENTS' EMPLOYEES AS THEIR BARGAINING
AGENTS.  RESPONDENTS REFUSED TO SIGN AND THE UNIONS COMMENCED PEACEFUL
PICKETING AND SECONDARY PRESSURE TO ENFORCE THEIR DEMAND.  RESPONDENTS
PETITIONED THE NATIONAL LABOR RELATIONS BOARD TO SETTLE THE QUESTION OF
REPRESENTATION OF THEIR EMPLOYEES; BUT THE REGIONAL DIRECTOR DISMISSED
THE PETITION.  THE BOARD HAD NOT ENTERED INTO AN AGREEMENT UNDER SEC.
10(A) OF THE ACT CEDING JURISDICTION TO THE STATE.  ON COMPLAINT OF
RESPONDENTS, A STATE COURT ENJOINED THE UNIONS FROM PICKETING OR
EXERTING SECONDARY PRESSURE TO ENFORCE THEIR DEMANDS AND AWARDED
DAMAGES TO RESPONDENTS.  HELD: 

1.  THE NATIONAL LABOR RELATIONS BOARD HAD EXCLUSIVE JURISDICTION OF
THE LABOR DISPUTE, AND THE STATE COURT WAS WITHOUT JURISDICTION TO
ENJOIN THE PICKETING OR THE SECONDARY PRESSURE.  GUSS V. UTAH LABOR
RELATIONS BOARD, ANTE, P. 1; AMALGAMATED MEAT CUTTERS V. FAIRLAWN
MEATS, INC., ANTE, P. 20.  PP. 27-28. 

2.  SINCE THE STATE COURT, IN AWARDING DAMAGES, MAY HAVE FELT THAT IT
WAS BOUND TO APPLY FEDERAL LAW, WHICH IT WAS NOT, AND IT IS IMPOSSIBLE
TO KNOW HOW IT WOULD HAVE APPLIED ITS OWN STATE LAW ON THIS POINT, THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS ON THAT POINT.  P. 29. 

SAN DIEGO BUILDING TRADES COUNCIL ET AL. V. GARMON ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS ARE A PARTNERSHIP, OPERATING TWO RETAIL LUMBER YARDS IN
SAN DIEGO COUNTY, CALIFORNIA.  IN THE YEAR BEFORE THIS PROCEEDING BEGAN
THEY PURCHASED MORE THAN $250,000 WORTH OF MATERIAL FROM OUTSIDE
CALIFORNIA FOR RESALE AT RETAIL.  PETITIONER UNIONS ASKED THEM TO SIGN
A CONTRACT INCLUDING A UNION SHOP PROVISION.  RESPONDENTS REFUSED ON
THE GROUND THAT IT WOULD BE A VIOLATION OF THE NATIONAL LABOR RELATIONS
ACT TO SIGN SUCH A CONTRACT BEFORE A MAJORITY OF THEIR EMPLOYEES HAD
SELECTED A UNION AS THEIR COLLECTIVE BARGAINING AGENT.  THE UNIONS
COMMENCED PEACEFUL PICKETING TO ENFORCE THEIR DEMAND.  ABOUT A WEEK
LATER RESPONDENTS FILED SUIT IN THE SUPERIOR COURT FOR AN INJUNCTION
AND DAMAGES, ALLEGING THAT THEY WERE IN INTERSTATE COMMERCE AND THAT
THE CONTRACT SOUGHT BY THE UNIONS WOULD VIOLATE THE ACT.  (FN1)  ON THE
SAME DAY RESPONDENTS FILED WITH THE NATIONAL LABOR RELATIONS BOARD'S
REGIONAL OFFICE A PETITION ASKING THAT THE QUESTION OF THE
REPRESENTATION OF THEIR EMPLOYEES BE RESOLVED.  THE REGIONAL DIRECTOR
DISMISSED THE PETITION.  THE UNIONS NEVERTHELESS PRESSED THEIR CLAIM
THAT THE NATIONAL BOARD HAD EXCLUSIVE JURISDICTION.  (FN2)  AFTER A
HEARING THE SUPERIOR COURT ENTERED AN ORDER ENJOINING THE UNIONS FROM
PICKETING OR EXERTING SECONDARY PRESSURE IN SUPPORT OF THEIR DEMAND FOR
A UNION SHOP AGREEMENT UNLESS AND UNTIL ONE OR ANOTHER OF THE UNIONS
HAD BEEN DESIGNATED AS THE COLLECTIVE BARGAINING REPRESENTATIVE OF
RESPONDENT'S EMPLOYEES.  IT ALSO AWARDED RESPONDENTS $1,000 DAMAGES. 
THE CALIFORNIA SUPREME COURT AFFIRMED.  (FN3)  WE GRANTED CERTIORARI. 
351 U.S. 923.  RECOGNIZING THAT RESPONDENTS' BUSINESS AFFECTED
INTERSTATE COMMERCE, IT CONCLUDED THAT THE BOARD'S INCLINATION, IN
PURSUANCE OF ITS ANNOUNCED JURISDICTIONAL POLICY, TO HANDLE
RESPONDENTS' REPRESENTATION PETITION LEFT THE STATE COURTS FREE TO
ACT.  (FN4)  ON THE MERITS THE COURT SAID: 

"THE ASSERTION OF ECONOMIC PRESSURE TO COMPEL AN EMPLOYER TO SIGN THE
TYPE OF AGREEMENT HERE INVOLVED IS AN UNFAIR LABOR PRACTICE UNDER
LABOR ACTIVITIES FOR SUCH A PURPOSE THUS WERE UNLAWFUL UNDER THE
FEDERAL STATUTE, AND FOR THAT REASON WERE NOT PRIVILEGED UNDER THE
CALIFORNIA LAW."  (FN5) 

WHAT WE HAVE SAID IN GUSS V. UTAH LABOR RELATIONS BOARD, ANTE, P. 1,
AND AMALGAMATED MEAT CUTTERS V. FAIRLAWN MEATS, INC., ANTE, P. 20, IS
APPLICABLE HERE, AND THOSE CASES CONTROL THIS ONE IN ITS MAJOR
ASPECTS.  RESPONDENTS, HOWEVER, ARGUE THAT THE AWARD OF DAMAGES MUST BE
SUSTAINED UNDER UNITED CONSTRUCTION WORKERS V. LABURNUM CONSTRUCTION
CORP., 347 U.S. 656.  WE DO NOT REACH THIS QUESTION.  THE CALIFORNIA
SUPREME COURT LEAVES US IN DOUBT, BUT ITS OPINION INDICATES THAT IT
FELT BOUND TO "APPLY" OR IN SOME SENSE FOLLOW FEDERAL LAW IN THIS
CASE.  THERE IS, OF COURSE, NO SUCH COMPULSION.  LABURNUM SUSTAINED AN
AWARD OF DAMAGES UNDER THE STATE TORT LAW FOR VIOLENT CONDUCT.  WE
CANNOT KNOW THAT THE CALIFORNIA COURT WOULD HAVE INTERPRETED ITS OWN
STATE LAW TO ALLOW AN AWARD OF DAMAGES IN THIS DIFFERENT SITUATION.  WE
THEREFORE VACATE THE JUDGMENT AND REMAND THE CASE TO THE SUPREME COURT
OF CALIFORNIA FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION AND
THE OPINIONS IN GUSS V. UTAH LABOR RELATIONS BOARD, SUPRA, AND
AMALGAMATED MEAT CUTTERS V. FAIRLAWN MEATS, INC., SUPRA.  VACATED AND
REMANDED. 

FN1  SECTION 8(A)(3) ALLOWS AN EMPLOYER TO ENTER INTO A UNION
SECURITY AGREEMENT OF THE TYPE PETITIONERS HERE WERE SEEKING ONLY IF
THE UNION IS THE BARGAINING REPRESENTATIVE OF HIS EMPLOYEES.  61 STAT.
140, 29 U.S.C. SEC. 158(A)(3). 

FN2  THEY ALSO MAINTAINED THAT BY NOT APPEALING THE REGIONAL
DIRECTOR'S DECISION RESPONDENTS HAD FAILED TO EXHAUST THEIR REMEDIES
UNDER THE NATIONAL ACT.  ON OUR VIEW OF THE CASE, WE NEED NOT CONSIDER
THIS CONTENTION. 

FN3  45 CAL. 2D 657, 291 P.2D 1. 

FN4  PETITIONERS' INTERSTATE PURCHASES FALL BELOW THE STANDARDS FOR
RETAIL STORES.  SEE AMALGAMATED MEAT CUTTERS V. FAIRLAWN MEATS, INC.,
ANTE, P. 23, N. 4.  THE BOARD DRAWS NO DISTINCTION IN THE APPLICATION
OF ITS JURISDICTIONAL STANDARDS BETWEEN RERPESENTATION AND UNFAIR LABOR
PRACTICE CASES.  C. A. BRAUKMAN, 94 N.L.R.B. 1609, 1611. 

FN5  45 CAL. 2D, AT 666, 291 P.2D, AT 7. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

FOR DISSENTING OPINION OF MR. JUSTICE BURTON, JOINED BY MR. JUSTICE
CLARK, SEE ANTE, P. 12. 
..END :























BROTHERHOOD OF RAILROAD TRAINMEN V. CHICAGO RIVER & INDIANA RAILROAD CO.
353 U.S. 30 


NO. 313.  ARGUED FEBRUARY 26, 1957 - DECIDED MARCH 25, 1957 - AFFIRMED. 


AFTER NEGOTIATIONS HAD FAILED, A RAILROAD WHICH HAD A COLLECTIVE
BARGAINING AGREEMENT WITH A LABOR UNION OF ITS EMPLOYEES SUBMITTED
SEVERAL "MINOR DISPUTES" ARISING UNDER THE AGREEMENT TO THE NATIONAL
RAILROAD ADJUSTMENT BOARD CREATED BY THE RAILWAY LABOR ACT.  THE UNION
PROMPTLY ISSUED A STRIKE CALL.  THE RAILROAD SOUGHT RELIEF FROM THE
FEDERAL DISTRICT COURT, WHICH ENTERED A PERMANENT INJUNCTION AGAINST
THE STRIKE.  HELD:  A RAILWAY LABOR UNION CANNOT LAWFULLY RESORT TO A
STRIKE OVER SUCH "MINOR DISPUTES" PENDING BEFORE THE NATIONAL RAILROAD
ADJUSTMENT BOARD; THE DISTRICT COURT HAD JURISDICTION TO ENJOIN SUCH A
STRIKE; AND ITS JUDGMENT IS SUSTAINED.  PP. 31-42. 

(A)  SECTION 3, FIRST, OF THE RAILWAY LABOR ACT AUTHORIZES EITHER
SIDE TO SUBMIT A "MINOR DISPUTE" TO THE NATIONAL RAILROAD ADJUSTMENT
BOARD, WHOSE DECISION SHALL BE FINAL AND FINDING ON BOTH SIDES; AND THE
OF A CONTRARY OR QUALIFIED INTENTION OF CONGRESS.  PP. 34-35. 

(B)  THE LEGISLATIVE HISTORY OF THE PROVISIONS OF THE RAILWAY LABOR
ACT CREATING THE NATIONAL RAILROAD ADJUSTMENT BOARD SHOWS THAT THEY
WERE INTENDED TO PROVIDE FOR COMPULSORY ARBITRATION OF SUCH "MINOR
DISPUTES."  PP. 35-39. 

(C)  THE FEDERAL COURTS CAN COMPEL COMPLIANCE WITH THE PROVISIONS OF
THE ACT TO THE EXTENT OF ENJOINING A UNION FROM STRIKING TO DEFEAT THE
JURISDICTION OF THE NATIONAL RAILROAD ADJUSTMENT BOARD, AND SUCH
INJUNCTIONS ARE NOT BARRED BY THE NORRIS-LAGUARDIA ACT.  PP. 39-42. 

(D)  THE NORRIS-LAGUARDIA ACT AND THE RAILWAY LABOR ACT MUST BE READ
TOGETHER SO THAT THE OBVIOUS PURPOSE IN THE ENACTMENT OF EACH IS
PRESERVED.  PP. 39-42. 

(E)  CASES IN WHICH IT HAS BEEN HELD THAT THE NORRIS-LAGUARDIA ACT'S
BAN ON FEDERAL INJUNCTIONS IS NOT LIFTED BECAUSE THE CONDUCT OF THE
UNION IS UNLAWFUL UNDER SOME OTHER STATUTE ARE INAPPOSITE TO THIS
CASE.  P. 42. 

BROTHERHOOD OF RAILROAD TRAINMEN ET AL. V. CHICAGO RIVER & INDIANA
RAILROAD CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO INTERPRET THAT PROVISION OF THE RAILWAY LABOR ACT
(FN1) WHICH CREATED THE NATIONAL RAILROAD ADJUSTMENT BOARD FOR THE
RESOLUTION OF MINOR GRIEVANCES IN THE EVENT THAT THE PARTIES WERE
UNABLE TO SETTLE THEM BY NEGOTIATION.  THE ULTIMATE QUESTION IS WHETHER
A RAILWAY LABOR ORGANIZATION CAN RESORT TO A STRIKE OVER MATTERS
PENDING BEFORE THE ADJUSTMENT BOARD.  (FN2) 

THE CHICAGO RIVER AND INDIANA RAILROAD COMPANY OPERATES THE SWITCHING
AND YARD FACILITIES AT THE CHICAGO STOCKYARDS.  A SEGMENT OF THE
EMPLOYEES OF THE RIVER ROAD WERE REPRESENTED BY THE BROTHERHOOD OF
RAILROAD TRAINMEN.  A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
BROTHERHOOD AND THE RIVER ROAD WAS IN EXISTENCE THROUGHOUT THE PERIOD
COVERED BY THIS CASE.  THE PRESENT DISAGREEMENT ARISES FROM AN
ACCUMULATION OF TWENTY-ONE GRIEVANCES OF MEMBERS OF THE BROTHERHOOD
AGAINST THE CARRIER.  NINETEEN OF THESE WERE CLAIMS FOR ADDITIONAL
COMPENSATION, ONE WAS A CLAIM FOR REINSTATEMENT TO A HIGHER POSITION,
AND ONE WAS FOR REINSTATEMENT IN THE EMPLOY OF THE CARRIER.  WHEN
NEGOTIATIONS FAILED, THE BROTHERHOOD CALLED A STRIKE.  BECAUSE OF THE
SERIOUS NATURE OF THE IMPENDING WORK STOPPAGE, THE NATIONAL MEDIATION
BOARD PROFFERED ITS SERVICES.  THE MEDIATOR WAS UNSUCCESSFUL, AND UPON
HIS WITHDRAWAL, THE RIVER ROAD SUBMITTED THE CONTROVERSY TO THE
ADJUSTMENT BOARD.  THE BROTHERHOOD PROMPTLY ISSUED A STRIKE CALL FOR
FOUR DAYS LATER. 

THE RIVER ROAD THEN SOUGHT RELIEF FROM A DISTRICT COURT.  BECAUSE OF
THE THREATENED IRREPARABLE INJURY TO THE CARRIER, ITS EMPLOYEES AND THE
600 INDUSTRIES AND 27 RAILROADS SERVED BY IT, THE COMPLAINT PRAYED FOR
A PRELIMINARY INJUNCTION, AND ULTIMATELY A PERMANENT INJUNCTION,
AGAINST A STRIKE BY THE BROTHERHOOD OVER THE GRIEVANCES PENDING BEFORE
THE ADJUSTMENT BOARD.  A TEMPORARY RESTRAINING ORDER WAS ISSUED, BUT
THAT ORDER WAS VACATED AND THE COMPLAINT DISMISSED UPON THE FINDING BY
THE DISTRICT JUDGE THAT THE NORRIS-LAGUARDIA ACT WAS APPLICABLE AND
THAT THE COURT LACKED JURISDICTION TO GRANT THE RELIEF REQUESTED.  THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED.  229 F.2D 926.  A
PERMANENT INJUNCTION WAS ACCORDINGLY ENTERED BY THE DISTRICT COURT AND
AFFIRMED BY THE SEVENTH CIRCUIT.  WE GRANTED CERTIORARI IN ORDER TO
RESOLVE AN IMPORTANT QUESTION CONCERNING INTERPRETATION AND APPLICATION
OF THE RAILWAY LABOR ACT.  (FN3)  352 U.S. 865. 

THE GRIEVANCES FOR WHICH REDRESS IS SOUGHT BY THE BROTHERHOOD ARE
ADMITTEDLY "MINOR DISPUTES" AS THAT PHRASE IS KNOWN IN THE PARLANCE OF
THE RAILWAY LABOR ACT.  THESE ARE CONTROVERSIES OVER THE MEANING OF AN
EXISTING COLLECTIVE BARGAINING AGREEMENT IN A PARTICULAR FACT
SITUATION, GENERALLY INVOLVING ONLY ONE EMPLOYEE.  SEC. 2, SIXTH. 
(FN4)  THEY MAY BE CONTRASTED WITH "MAJOR DISPUTES" WHICH RESULT WHEN
THERE IS DISAGREEMENT IN THE BARGAINING PROCESS FOR A NEW CONTRACT. 
SEC, 2, SEVENTH.  (FN5)  SEE ELGIN, J.&E.R. CO. V. BURLEY, 325 U.S.
711, 722-724. 

THE FIRST STEP TOWARD SETTLEMENT OF EITHER KIND OF DISPUTE IS
NEGOTIATION AND CONFERENCE BETWEEN THE PARTIES.  SECTION 3, FIRST (I),
(FN6) PROVIDES THAT: 

"THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER
OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS  ...  SHALL BE HANDLED IN THE USUAL MANNER UP TO AND
INCLUDING THE CHIEF OPERATING OFFICER OF THE CARRIER DESIGNATED TO
HANDLE SUCH DISPUTES  ...  ." 

IF THE PARTIES ARE UNABLE TO REACH AN AGREEMENT, THE SECTION
CONTINUES: 

"  ...  BUT, FAILING TO REACH AN ADJUSTMENT IN THIS MANNER, THE
DISPUTES MAY BE REFERRED BY PETITION OF THE PARTIES OR BY EITHER PARTY
TO THE APPROPRIATE DIVISION OF THE NATIONAL RAILROAD ADJUSTMENT BOARD
WITH A FULL STATEMENT OF THE FACTS AND ALL SUPPORTING DATA BEARING UPON
THE DISPUTES." 


"THE AWARDS OF THE SEVERAL DIVISIONS OF THE ADJUSTMENT BOARD  ...
SHALL BE FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE  ...  ." 

THIS LANGUAGE IS UNEQUIVOCAL.  CONGRESS HAS SET UP A TRIBUNAL TO
HANDLE MINOR DISPUTES WHICH HAVE NOT BEEN RESOLVED BY THE PARTIES
THEMSELVES.  AWARDS OF THIS BOARD ARE "FINAL AND BINDING UPON BOTH
PARTIES."  AND EITHER SIDE MAY SUBMIT THE DISPUTE TO THE BOARD.  THE
BROTHERHOOD SUGGESTS THAT WE READ THE ACT TO MEAN ONLY THAT AN
ADJUSTMENT BOARD HAS BEEN ORGANIZED AND THAT THE PARTIES ARE FREE TO
MAKE USE OF ITS PROCEDURES IF THEY WISH TO; BUT THAT THERE IS NO
COMPULSION ON EITHER SIDE TO ALLOW THE BOARD TO SETTLE A DISPUTE IF AN
ALTERNATIVE REMEDY, SUCH AS RESORT TO ECONOMIC DURESS, SEEMS MORE
DESIRABLE.  (FN8)  SUCH AN INTERPRETATION WOULD RENDER MEANINGLESS
THOSE PROVISIONS IN THE ACT WHICH ALLOW ONE SIDE TO SUBMIT A DISPUTE TO
THE BOARD, WHOSE DECISION SHALL BE FINAL AND BINDING ON BOTH SIDES.  IF
THE BROTHERHOOD IS CORRECT, THE ADJUSTMENT BOARD COULD ACT ONLY IF THE
UNION AND THE CARRIER WERE AMENABLE TO ITS DOING SO.  THE LANGUAGE OF
SEC. 3, FIRST, READS OTHERWISE AND SHOULD BE LITERALLY APPLIED IN THE
ABSENCE OF A CLEAR SHOWING OF A CONTRARY OR QUALIFIED INTENTION OF
CONGRESS. 

LEGISLATIVE HISTORY OF THE PROVISIONS CREATING THE NATIONAL RAILROAD
ADJUSTMENT BOARD REINFORCES THE LITERAL INTERPRETATION OF THE ACT.  THE
PRESENT LAW IS A COMPOSITE OF TWO MAJOR PIECES OF LEGISLATION.  MOST OF
THE BASIC FRAMEWORK WAS ADOPTED IN 1926.  (FN9)  IN 1934, AFTER EIGHT
YEARS OF EXPERIENCE, THE STATUTE WAS AMENDED, AND IN THAT AMENDMENT THE
ADJUSTMENT BOARD WAS BORN.  (FN10) 

THE DISTINCTION BETWEEN "MAJOR DISPUTES" AND "MINOR DISPUTES" WAS
FOUND IN THE 1926 STATUTE.  ABOVE THE LEVEL OF NEGOTIATION AND
CONFERENCE, EACH WAS TO FOLLOW A SEPARATE PROCEDURE.  SECTION 3, FIRST,
(FN11) OF THAT ACT CALLED UPON CARRIERS OR GROUPS OF CARRIERS AND THEIR
EMPLOYEES TO AGREE TO THE FORMATION OF BOARDS OF ADJUSTMENT, COMPOSED
EQUALLY OF REPRESENTATIVES OF LABOR AND MANAGEMENT, TO RESOLVE THE
"MINOR DISPUTES."  IF THIS STEP WERE UNSUCCESSFUL, THESE DISPUTES ALONG
WITH THE "MAJOR DISPUTES" BECAME A FUNCTION OF THE BOARD OF MEDIATION,
PREDECESSOR OF THE NATIONAL MEDIATION BOARD. 

THE OBVIOUS LACK OF ANY COMPULSION TOWARD A SETTLEMENT OF DISPUTES
WAS A BASIC CHARACTERISTIC OF THE ACT AND PROVED TO BE A MAJOR WEAKNESS
IN THE PROCEDURES FOR HANDLING "MINOR DISPUTES."  AS STATED IN THE
REPORT OF THE HOUSE OF REPRESENTATIVES COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, AFTER HEARINGS ON THE 1934 AMENDMENT:  "IN MANY
INSTANCES ...  THE CARRIERS AND THE EMPLOYEES HAVE BEEN UNABLE TO REACH
AGREEMENTS TO ESTABLISH SUCH BOARDS OF ADJUSTMENT."  H.R. REP. NO.
1944, 73D CONG., 2D SESS. 3.  THIS WAS NOT THE ONLY WEAKNESS, HOWEVER. 
"MANY THOUSANDS OF THESE MINOR DISPUTES HAVE BEEN CONSIDERED BY BOARDS
ESTABLISHED UNDER THE RAILWAY LABOR ACT; BUT THE BOARDS HAVE BEEN
UNABLE TO REACH A MAJORITY DECISION, AND SO THE PROCEEDINGS HAVE BEEN
DEADLOCKED."  IBID. 

THIS CONDITION WAS IN MARKED CONTRAST TO THE DECLARED PURPOSE OF THE
1926 ACT "  ...  TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF THE
APPLICATION OF  ...  AGREEMENTS OR OTHERWISE, IN ORDER TO AVOID ANY
INTERRUPTION TO COMMERCE OR TO THE OPERATION OF ANY CARRIER GROWING OUT
OF ANY DISPUTE BETWEEN THE CARRIER AND THE EMPLOYEES THEREOF."  SEC. 2,
FIRST.  (FN12)  THE REPORT CONTINUED: 

"THESE UNADJUSTED DISPUTES HAVE BECOME SO NUMEROUS THAT ON SEVERAL
OCCASIONS THE EMPLOYEES HAVE RESORTED TO THE ISSUANCE OF STRIKE BALLOTS
AND THREATENED TO INTERRUPT INTERSTATE COMMERCE IN ORDER TO SECURE AN
ADJUSTMENT.  THIS HAS MADE IT NECESSARY FOR THE PRESIDENT OF THE UNITED
STATES TO INTERVENE AND ESTABLISH AN EMERGENCY BOARD TO INVESTIGATE THE
CONTROVERSIES.  THIS CONDITION SHOULD BE CORRECTED IN THE INTEREST OF
INDUSTRIAL PEACE AND OF UNINTERRUPTED TRANSPORTATION SERVICE."  IBID. 

THE MEANS CHOSEN TO CORRECT THIS SITUATION ARE THE PRESENT PROVISIONS
OF SEC. 3, FIRST, CONCERNING THE NATIONAL RAILROAD ADJUSTMENT BOARD. 
THE BOARD WAS SET UP BY CONGRESS, MAKING IT UNNECESSARY FOR THE PARTIES
TO AGREE TO ESTABLISH THEIR OWN BOARDS.  (FN13)  IN CASE OF A DEADLOCK
ON THE ADJUSTMENT BOARD, WHICH CONTINUED THE POLICY OF EQUAL
REPRESENTATION OF LABOR AND MANAGEMENT, THE APPROPRIATE DIVISION IS
ALLOWED TO SELECT A NEUTRAL REFEREE TO SIT WITH THEM AND BREAK THE
TIE.  IF THE DIVISION CANNOT AGREE EVEN ON A REFEREE, THE ACT PROVIDES
THAT ONE SHALL BE APPOINTED BY THE NATIONAL MEDIATION BOARD.  (FN14)
THUS WAS THE MACHINERY BUILT FOR THE DISPOSITION OF MINOR GRIEVANCES. 

THE CHANGE WAS MADE WITH THE FULL CONCURRENCE OF THE NATIONAL RAILWAY
LABOR ORGANIZATIONS.  COMMISSIONER JOSEPH B. EASTMAN, FEDERAL
COORDINATOR OF TRANSPORTATION AND PRINCIPAL DRAFTSMAN OF THE 1934 BILL,
COMPLIMENTED THE UNIONS ON CONCEDING THE RIGHT TO STRIKE OVER "MINOR
DISPUTES" IN FAVOR OF THE PROCEDURES OF THE ADJUSTMENT BOARD" 

"THE WILLINGNESS OF THE EMPLOYEES TO AGREE TO SUCH A PROVISION IS, IN
MY JUDGMENT, A VERY IMPORTANT CONCESSION AND ONE OF WHICH FULL
ADVANTAGE SHOULD BE TAKEN IN THE PUBLIC INTEREST.  I REGARD IT AS,
PERHAPS, THE MOST IMPORTANT PART OF THE BILL."  (FN15) 

ASKED IF THE ACT MADE IT A MATTER OF DISCRETION WHETHER DISPUTES
WOULD BE SUBMITTED TO THE ADJUSTMENT BOARD, HE REPLIED IN THE
NEGATIVE.  IT WAS, HE SAID, A MATTER OF DUTY: 

"  ... AND IT IS MY UNDERSTANDING THAT THE EMPLOYEES IN THE CASE OF
THESE MINOR GRIEVANCES - AND THAT IS ALL THAT CAN BE DEALT WITH BY THE
ADJUSTMENT BOARD - ARE ENTIRELY AGREEABLE TO THOSE PROVISIONS OF THE
LAW. 

"I THINK THAT IS A VERY IMPORTANT CONCESSION ON THEIR PART  ...  .
THIS LAW IS IN EFFECT AN AGREEMENT ON THE PART OF THE PARTIES TO
ARBITRATE ALL OF THESE MINOR DISPUTES."  (FN16) 

THE CHIEF SPOKESMAN FOR THE RAILWAY LABOR ORGANIZATIONS WAS GEORGE M.
HARRISON.  HE APPEARED AS CHAIRMAN OF THE LEGISLATIVE COMMITTEE OF THE
RAILWAY LABOR EXECUTIVES' ASSOCIATION BEFORE BOTH THE HOUSE OF
REPRESENTATIVES AND THE SENATE COMMITTEES.  THIS ASSOCIATION COMPRISED
THE TWENTY-ONE STANDARD RAILWAY LABOR GROUPS, INCLUDING THE BROTHERHOOD
OF RAILROAD TRAINMEN.  HE TESTIFIED BEFORE THE HOUSE COMMITTEE: 

"SO, OUT OF ALL OF THAT EXPERIENCE AND RECOGNIZING THE CHARACTER OF
THE SERVICES GIVEN TO THE PEOPLE OF THIS COUNTRY BY OUR INDUSTRY AND
HOW ESSENTIAL IT IS TO THE WELFARE OF THE COUNTRY, THESE ORGANIZATIONS
HAVE COME TO THE CONCLUSION THAT IN RESPECT TO THESE MINOR-GRIEVANCE
CASES THAT GROW OUT OF THE INTERPRETATION AND/OR APPLICATION OF THE
CONTRACTS ALREADY MADE THAT THEY CAN VERY WELL PERMIT THOSE DISPUTES TO
BE DECIDED,  ...  BY AN ADJUSTMENT BOARD."  (FN17) 

LATER, BEFORE THE SENATE COMMITTEE, HE DECLARED: 

"GRIEVANCES ARE INSTITUTED AGAINST RAILROAD OFFICERS' ACTIONS, AND WE
ARE WILLING TO TAKE OUR CHANCES WITH THIS NATIONAL BOARD BECAUSE WE
BELIEVE, OUT OF OUR EXPERIENCE, THAT THE NATIONAL BOARD IS THE BEST AND
MOST EFFICIENT METHOD OF GETTING A DETERMINATION OF THESE MANY
CONTROVERSIES THAT ARISE ON THESE RAILROADS BETWEEN THE OFFICERS AND
THE EMPLOYEES. 

*         *         *         *         * 

"THESE RAILWAY LABOR ORGANIZATIONS HAVE ALWAYS OPPOSED COMPULSORY
DETERMINATION OF THEIR CONTROVERSIES  ...  .  WE ARE NOW READY TO
CONCEDE THAT WE CAN RISK HAVING OUR GRIEVANCES GO TO A BOARD AND GET
THEM DETERMINED, AND THAT IS A CONTRIBUTION THAT THESE ORGANIZATIONS
ARE WILLING TO MAKE."  (FN18) 

THE VOICE OF LABOR WAS NOT UNANIMOUS IN THIS CONCESSION.  THE
REPRESENTATIVE OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS VEHEMENTLY
OBJECTED TO THE ADOPTION OF SEC. 3, FIRST. 

"WE ARE UNALTERABLY OPPOSED TO PARAGRAPH M,  ...  WHICH BRINGS ABOUT
COMPULSORY ARBITRATION AND PREVENTS THE USE OF THE ONLY WEAPON IN THE
HANDS OF ORGANIZED LABOR.  WE BELIEVE THAT A VERY DANGEROUS PRECEDENT
WOULD BE ESTABLISHED WITH THE PASSAGE OF THIS PARAGRAPH, AND TO THE
BEST OF OUR KNOWLEDGE IT IS THE FIRST TIME THAT ANY SUCH MEASURE HAS
BEEN ENACTED BY THE CONGRESS OF THE UNITED STATES."  (FN19) 

THIS RECORD IS CONVINCING THAT THERE WAS GENERAL UNDERSTANDING
BETWEEN BOTH THE SUPPORTERS AND THE OPPONENTS OF THE 1934 AMENDMENT
THAT THE PROVISIONS DEALING WITH THE ADJUSTMENT BOARD WERE TO BE
CONSIDERED AS COMPULSORY ARBITRATION IN THIS LIMITED FIELD.  OUR
READING OF THE ACT IS THEREFORE CONFIRMED, NOT REBUTTED, BY THE
LEGISLATIVE HISTORY. 

THE ONLY QUESTION WHICH REMAINS IS WHETHER THE FEDERAL COURTS CAN
COMPEL COMPLIANCE WITH THE PROVISIONS OF THE ACT TO THE EXTENT OF
ENJOINING A UNION FROM STRIKING TO DEFEAT THE JURISDICTION OF THE
ADJUSTMENT BOARD.  THE BROTHERHOOD CONTENDS THAT THE NORRIS-LAGUARDIA
ACT (FN20) HAS WITHDRAWN THE POWER OF FEDERAL COURTS TO ISSUE
INJUNCTIONS IN LABOR DISPUTES.  THAT LIMITATION, IT IS URGED, APPLIES
WITH FULL FORCE TO ALL RAILWAY LABOR DISPUTES AS WELL AS LABOR
CONTROVERSIES IN OTHER INDUSTRIES.    WE HOLD THAT THE NORRIS-LAGUARDIA
ACT CANNOT BE READ ALONE IN MATTERS DEALING WITH RAILWAY LABOR
DISPUTES.  THERE MUST BE AN ACCOMMODATION OF THAT STATUTE AND THE
RAILWAY LABOR ACT SO THAT THE OBVIOUS PURPOSE IN THE ENACTMENT OF EACH
IS PRESERVED.  WE THINK THAT THE PURPOSES OF THESE ACTS ARE
RECONCILABLE. 

IN ADOPTING THE RAILWAY LABOR ACT, CONGRESS ENDEAVORED TO BRING ABOUT
STABLE RELATIONSHIPS BETWEEN LABOR AND MANAGEMENT IN THIS MOST
IMPORTANT NATIONAL INDUSTRY.  IT FOUND FROM THE EXPERIENCE BETWEEN 1926
AND 1934 THAT THE FAILURE OF VOLUNTARY MACHINERY TO RESOLVE A LARGE
NUMBER OF MINOR DISPUTES CALLED FOR A STRENGTHENING OF THE ACT TO
PROVIDE AN EFFECTIVE AGENCY, IN WHICH BOTH SIDES PARTICIPATED, FOR THE
FINAL ADJUSTMENT OF SUCH CONTROVERSIES.  ACCUMULATION OF THESE DISPUTES
HAD RESULTED IN THE AGGREGATE BEING SERIOUS ENOUGH TO THREATEN
DISRUPTION OF TRANSPORTATION,  HENCE, WITH THE FULL CONSENT OF THE
BROTHERHOODS, THE 1934 AMENDMENT BECAME LAW. 

THE NORRIS-LAGUARDIA ACT, ON THE OTHER HAND, WAS DESIGNED PRIMARILY
TO PROTECT WORKING MEN IN THE EXERCISE OF ORGANIZED, ECONOMIC POWER,
WHICH IS VITAL TO COLLECTIVE BARGAINING.  THE ACT AIMED TO CORRECT
EXISTING ABUSES OF THE INJUNCTIVE REMEDY IN LABOR DISPUTES.  FEDERAL
COURTS HAD BEEN DRAWN INTO THE FIELD UNDER THE GUISE EITHER OF
ENFORCING FEDERAL STATUTES, PRINCIPALLY THE SHERMAN ACT, OR THROUGH
DIVERSITY OF CITIZENSHIP JURISDICTION.  IN THE LATTER CASES, THE COURTS
EMPLOYED PRINCIPLES OF FEDERAL LAW FREQUENTLY AT VARIANCE WITH THE
CONCEPTS OF LABOR LAW IN THE STATES WHERE THEY SAT.  CONGRESS ACTED TO
PREVENT THE INJUNCTIONS OF THE FEDERAL COURTS FROM UPSETTING THE
NATURAL INTERPLAY OF THE COMPETING ECONOMIC FORCES OF LABOR AND
CAPITAL.  REP. LAGUARDIA, DURING THE FLOOR DEBATES ON THE 1932 ACT,
RECOGNIZED THAT THE MACHINERY OF THE RAILWAY LABOR ACT CHANNELED THESE
ECONOMIC FORCES, IN MATTERS DEALING WITH RAILWAY LABOR, INTO SPECIAL
PROCESSES INTENDED TO COMPROMISE THEM.  (FN21)  SUCH CONTROVERSIES,
THEREFORE, ARE NOT THE SAME AS THOSE IN WHICH THE INJUNCTION STRIPS
LABOR OF ITS PRIMARY WEAPON WITHOUT SUBSTITUTING ANY REASONABLE
ALTERNATIVE.  (FN22) 

IN PRIOR CASES INVOLVING RAILWAY LABOR DISPUTES, THIS COURT HAS
AUTHORIZED THE USE OF INJUNCTIVE RELIEF TO VINDICATE THE PROCESSES OF
THE RAILWAY LABOR ACT.  VIRGINIAN R. CO. V. SYSTEM FEDERATION NO. 40,
300 U.S. 515, WAS AN ACTION BY THE UNION TO ENJOIN COMPLIANCE WITH THE
ACT'S PROVISIONS FOR CERTIFICATION OF A BARGAINING REPRESENTATIVE.  THE
QUESTION RAISED WAS WHETHER A FEDERAL COURT COULD ISSUE AN INJUNCTION
IN A LABOR DISPUTE.  THE COURT HELD: 

"IT SUFFICES TO SAY THAT THE NORRIS-LAGUARDIA ACT CAN AFFECT THE
PRESENT DECREE ONLY SO FAR AS ITS PROVISIONS ARE FOUND NOT TO CONFLICT
WITH THOSE OF SEC. 2, NINTH, OF THE RAILWAY LABOR ACT, AUTHORIZING THE
RELIEF WHICH HAS BEEN GRANTED.  SUCH PROVISIONS CANNOT BE RENDERED
NUGATORY BY THE EARLIER AND MORE GENERAL PROVISIONS OF THE NORRIS
LAGUARDIA ACT."  ID., AT 563. 

IN BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768, AND
OTHER SIMILAR CASES, (FN23) THE COURT HELD THAT THE SPECIFIC PROVISIONS
OF THE RAILWAY LABOR ACT TAKE PRECEDENCE OVER THE MORE GENERAL
PROVISIONS OF THE NORRIS-LAGUARDIA ACT. 

"OUR CONCLUSION IS THAT THE DISTRICT COURT HAS JURISDICTION AND POWER
TO ISSUE NECESSARY INJUNCTIVE ORDERS TO ENFORCE COMPLIANCE WITH THE
REQUIREMENTS OF THE RAILWAY LABOR ACT NOTWITHSTANDING THE PROVISIONS OF
THE NORRIS-LAGUARDIA ACT."  ID., AT 774. 

THIS IS A CLEAR SITUATION FOR THE APPLICATION OF THAT PRINCIPLE. 
(FN24) 

THE BROTHERHOOD HAS CITED SEVERAL CASES IN WHICH IT HAS BEEN HELD
THAT THE NORRIS-LAGUARDIA ACT'S BAN ON FEDERAL INJUNCTIONS IS NOT
LIFTED BECAUSE THE CONDUCT OF THE UNION IS UNLAWFUL UNDER SOME OTHER
STATUTE.  (FN25)  WE BELIEVE THAT THESE ARE INAPPOSITE TO THIS CASE. 
NONE INVOLVED THE NEED TO ACCOMMODATE TWO STATUTES, WHEN BOTH WERE
ADOPTED AS A PART OF A PATTERN OF LABOR LEGISLATION. 

THE JUDGMENT OF THE COURT OF APPEALS MUST BE AFFIRMED.  IT IS SO
ORDERED. 

FN1  44 STAT. 577, AS AMENDED, 45 U.S.C. SECS. 151-188. 

FN2  THE RELATIONSHIP OF LABOR AND MANAGEMENT IN THE RAILROAD
INDUSTRY HAS DEVELOPED ON A PATTERN DIFFERENT FROM OTHER INDUSTRIES. 
THE FUNDAMENTAL PREMISES AND PRINCIPLES OF THE RAILWAY LABOR ACT ARE
NOT THE SAME AS THOSE WHICH FORM THE BASIS OF THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 449, AS AMENDED, 29 U.S. C. SEC. 151 ET SEQ. IT
IS ONE OF THOSE DIFFERENCES WHICH UNDERLIES THE CONTROVERSY IN THIS
CASE. 

FN3  IN ADDITION TO THE IMPORTANCE OF THE QUESTION, THERE WAS A
CONFLICT IN THE DECISIONS OF THE COURTS OF APPEALS.  BROTHERHOOD OF
RAILROAD TRAINMEN V. CENTRAL OF GEORGIA R. CO., 229 F.2D 901, DECIDED
BY THE FIFTH CIRCUIT, CAME TO A CONCLUSION CONTRARY TO THAT OF THE
SEVENTH CIRCUIT IN THIS CASE.  CERTIORARI HAD BEEN GRANTED IN BOTH
CASES, 352 U.S. 865, BUT WE DISMISSED THE WRIT IN THE CENTRAL OF
GEORGIA CONTROVERSY UPON A SUGGESTION OF MOOTNESS.  352 U.S. 995. 

FN4  45 U.S.C. SEC. 152, SIXTH. 

FN5  45 U.S.C. SEC. 152, SEVENTH. 

FN6  45 U.S.C. SEC. 153, FIRST (I). 

FN7  45 U.S.C. SEC. 153, FIRST (M). 

FN8  THE BROTHERHOOD DOES NOT DISCUSS THIS INTERPRETATION IN THE
EVENT THAT THE UNION HAD REFERRED THE DISPUTE TO THE ADJUSTMENT BOARD,
AS IS NORMALLY THE CASE IN GRIEVANCE DISPUTES, AND THE CARRIER WAS
RECALCITRANT.  IT IS TO BE DOUBTED THAT THE BROTHERHOOD WOULD SUPPORT
ALLOWING CARRIERS THE SAME RIGHT TO DEFEAT THE JURISDICTION OF THE
ADJUSTMENT BOARD THAT IT CLAIMS FOR ITSELF.  THE STATUTORY LANGUAGE,
HOWEVER, WOULD SUPPORT NO DISTINCTION. 

FN9  44 STAT. 577. 

FN10  48 STAT. 1185. 

FN11  44 STAT. 578-579. 

FN12  44 STAT. 577-578. 

FN13  SECTION 2, SECOND, AUTHORIZES CARRIERS OR GROUPS OF CARRIERS
AND THEIR EMPLOYEES TO AGREE TO THE ESTABLISHMENT OF SYSTEM, GROUP OR
REGIONAL BOARDS OF ADJUSTMENT SIMILAR TO THOSE IN THE 1926 ACT.  THESE
BOARDS CAN HAVE JURISDICTION CO-EXTENSIVE WITH THAT OF THE NATIONAL
BOARD, BUT THE EXISTENCE OF THE LATTER INSURES AGAINST ACCUMULATION OF
DISPUTES THROUGH INEFFECTIVENESS OF THE LOCAL BOARDS. 

FN14  "MINOR DISPUTES" WERE ELIMINATED FROM THE FUNCTIONS OF THE
MEDIATION BOARD BY THE 1934 AMENDMENT.  HOWEVER, THAT BOARD CAN STILL
BECOME INVOLVED IN A "MINOR DISPUTE" CASE IF "ANY LABOR EMERGENCY IS
FOUND BY IT TO EXIST AT ANY TIME."  SEC. 5, FIRST, 45 U.S.C. SEC. 155,
FIRST.  SUCH WAS THE FACT IN THIS CASE WHEN THE THREATENED STRIKE
PRESENTED AN EMERGENCY SITUATION.  THE MEDIATION BOARD ENTERS THESE
CASES SOLELY ON ITS OWN MOTION, HOWEVER.  IT CANNOT BE CALLED INTO THE
DISPUTE BY EITHER OR BOTH OF THE PARTIES OR BY AN EMPLOYEE OR GROUP OF
EMPLOYEES AS IS TRUE FOR DISPUTES NOT WITHIN THE JURISDICTION OF THE
ADJUSTMENT BOARD. 

FN15  HEARINGS BEFORE HOUSE OF REPRESENTATIVES COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON H.R. 7650, 73D CONG., 2D SESS. 47. 

FN16  ID., AT 58, 60. 

FN17  ID., AT 81-82. 

FN18  HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S.
3266, 73D CONG., 2D SESS.  33, 35. 

FN19  HEARINGS BEFORE HOUSE OF REPRESENTATIVES COMMITTEE, SUPRA, NOTE
15, AT 118. 

FN20  47 STAT. 70, AS AMENDED, 29 U.S.C. SECS. 101-115. 

FN21  75 CONG. REC. 5499, 5503-5504. 

FN22  THE ADJUSTMENT BOARD CANNOT ENTERTAIN A CASE ON ITS OWN
MOTION.  ITS PROCESSES MUST BE INVOKED BY ONE OR BOTH OF THE PARTIES. 
IN THIS CASE, THE RIVER ROAD FILED THE GRIEVANCES WITH THE BOARD BEFORE
SEEKING AN INJUNCTION.  CF. THE EXHAUSTION OF REMEDIES PROVISION IN
SEC. 8 OF THE NORRIS-LAGUARDIA ACT.  29 U.S.C. SEC. 108. 

FN23  GRAHAM V. BROTHERHOOD OF L.F.&E., 338 U.S. 232; TUNSTALL V.
BROTHERHOOD OF L.F.&E., 323 U.S. 210; STEELE V. LOUISVILLE & N.R. CO.,
323 U.S. 192.  SEE ALSO ROLFES V. DWELLINGHAM, 198 F.2D 591. 

FN24  THE NORRIS-LAGUARDIA ACT HAS BEEN HELD TO PREVENT THE ISSUANCE
OF AN INJUNCTION IN A RAILWAY LABOR CASE INVOLVING A "MAJOR DISPUTE." 
BROTHERHOOD OF RAILROAD TRAINMEN V. TOLEDO, P.&W.R. CO., 321 U.S. 50. 
IN SUCH A CASE, OF COURSE, THE RAILWAY LABOR ACT DOES NOT PROVIDE A
PROCESS FOR A FINAL DECISION LIKE THAT OF THE ADJUSTMENT BOARD IN A
"MINOR DISPUTE" CASE. 

FN25  MILK WAGON DRIVERS' UNION V. LAKE VALLEY FARM PRODUCTS, INC.,
311 U.S. 91; EAST TEXAS MOTOR FREIGHT LINES V. INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, 163 F.2D 10; CF. W.L.  MEAD, INC., V.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 217 F.2D 6, IN RE THIRD AVENUE
TRANSIT CORP., 192 F.2D 971; CARTER V. HERRIN MOTOR FREIGHT LINES,
INC., 131 F.2D 557; WILSON & CO. V. BIRL, 105 F.2D 948. 
..END :
















PEAK V. UNITED STATES 353 U.S. 43 


NO. 491.  ARGUED FEBRUARY 28, 1957 - DECIDED MARCH 25, 1957 - 229 F.2D
503, REVERSED AND REMANDED. 


PETITIONER BROUGHT SUIT IN A FEDERAL DISTRICT COURT IN 1954 TO RECOVER
THE PROCEEDS OF A NATIONAL SERVICE LIFE INSURANCE POLICY ON AN INSURED
WHO HAD BEEN MISSING SINCE HIS DISAPPEARANCE FROM THE ARMY IN 1943. 
THE COMPLAINT ALLEGED THAT, PRIOR TO THE INSURED'S DISAPPEARANCE, HE
WAS IN FRAIL HEALTH AND HAD BECOME TOTALLY AND PERMANENTLY DISABLED. 
THE COMPLAINT ALLEGED FURTHER THAT THE INSURED HAD DIED IN 1943, AND
THAT HIS TOTAL AND PERMANENT DISABILITY DURING THE TIME THE POLICY WAS
IN FORCE ENTITLED HIM TO WAIVER OF PREMIUMS ON THE POLICY.  HELD:  UPON
THE ALLEGATIONS OF THE COMPLAINT, PETITIONER WAS ENTITLED TO TAKE THE
CASE TO A JURY.  PP. 44-47. 

(A)  WHERE PROOF OF AN INSURED'S DEATH MUST REST PRIMARILY UPON HIS
UNEXPLAINED ABSENCE, SUIT MAY NOT BE MAINTAINED, AS A PRACTICAL MATTER,
PRIOR TO THE EXPIRATION OF THE STATUTORY 7-YEAR PERIOD; AND IT IS FROM
THAT DATE THAT THE 6-YEAR STATUTE OF LIMITATIONS SHOULD BE COMPUTED. 
P. 45. 

(B)  THE PROVISIONS OF 38 U.S.C. SEC. 810 THAT THE DEATH OF THE
INSURED "AS OF THE DATE OF THE EXPIRATION OF SUCH PERIOD  ...  MAY  ...
BE CONSIDERED AS SUFFICIENTLY PROVED" DOES NOT PRECLUDE THE
BENEFICIARY FROM INTRODUCING FURTHER EVIDENCE FROM WHICH THE JURY MIGHT
CONCLUDE THAT THE INSURED'S PRESUMED DEATH OCCURRED AT AN EARLIER DATE
WHEN THE POLICY WAS STILL IN FORCE.  PP. 45-46. 

(C)  IT IS ONLY WHERE THE BENEFICIARY PROVES MERELY THE FACT OF THE
INSURED'S 7 YEARS' UNEXPLAINED ABSENCE THAT THE STATUTE ESTABLISHES THE
PRESUMPTION OF DEATH AS OF THE END OF THAT PERIOD.  P. 46. 

(D)  THE "CONTINGENCY ON WHICH THE CLAIM IS FOUNDED," AS USED IN 38
U.S.C. SEC. 445, MEANS THE END OF THE 7-YEAR PERIOD WHEN THE
PRESUMPTION OF DEATH AROSE.  P. 46. 

(E)  SINCE THE CLAIM WAS FILED BY PETITIONER WITHIN ONE YEAR
SUBSEQUENT TO THE PRESUMED DATE OF DEATH, IT SHOULD BE CONSIDERED AS
INCLUDING THE LESSER CLAIM OF PREMIUM WAIVER UNDER 38 U.S.C. SEC.
802(N).  PP. 46-47. 

(F)  THE ALTERNATIVE CAUSE OF ACTION, BASED ON ALLEGATIONS OF
PERMANENT AND TOTAL DISABILITY OF THE INSURED AT THE TIME OF HIS
DISAPPEARANCE, WOULD NOT HAVE ACCRUED UNTIL 1950, SO THE 6-YEAR STATUTE
OF LIMITATIONS HAD NOT RUN WHEN THIS SUIT WAS BROUGHT.  PP. 46-47. 

PEAK V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER INSTITUTED THIS SUIT IN THE DISTRICT COURT IN 1954 TO
RECOVER THE PROCEEDS OF A NATIONAL SERVICE LIFE INSURANCE POLICY. 
PETITIONER'S SON, THE INSURED, HAS BEEN MISSING SINCE DISAPPEARING FROM
HIS ARMY UNIT IN 1943.  THE COMPLAINT ALLEGES THAT, PRIOR TO THE
INSURED'S DISAPPEARANCE, HIS CONDITION WAS ONE OF "GENERAL DEBILITY AND
WEAKNESS AND DESPONDENCY," AND THAT HE HAD BECOME TOTALLY AND
PERMANENTLY DISABLED AS A RESULT OF CERTAIN "DISEASES, AILMENTS AND
INJURIES."  THE COMPLAINT FURTHER AVERS THAT THE INSURED HAD DIED IN
1943, AND THAT HIS TOTAL AND PERMANENT DISABILITY DURING THE TIME THE
POLICY WAS IN FORCE ENTITLED HIM TO WAIVER OF PREMIUMS ON THE POLICY. 

THE DISTRICT COURT DISMISSED THE COMPLAINT, HOLDING THAT THE INSURED
WOULD, UNDER THE ALLEGATIONS OF THE COMPLAINT, BE PRESUMED TO BE DEAD
AS OF 1950, AND THAT THE POLICY HAD LAPSED IN THE INTERIM.  138 F.
SUPP. 810.  THE COURT OF APPEALS AFFIRMED.  229 F.2D 503.  IT HELD THAT
THE COMPLAINT CONTAINED NO ALLEGATIONS WHICH WOULD ENTITLE THE TRIER OF
FACT TO CONCLUDE THAT THE INSURED HAD DIED AT A TIME WHEN THE POLICY
CONTINUED IN FORCE.  ID., AT 504.  WE GRANTED CERTIORARI.  352 U.S.
822. 

RESPONDENT URGES THAT THE INSURED'S DEATH MUST BE PRESUMED TO HAVE
OCCURRED IN 1950, AT THE END OF SEVEN YEARS' UNEXPLAINED ABSENCE, WHEN
THIS POLICY HAD LONG LAPSED FOR FAILURE TO PAY PREMIUMS.  IN THE
ALTERNATIVE, IT IS ARGUED THAT, IF THE PETITIONER'S CLAIM IS FOUNDED ON
THE INSURED'S DEATH IN 1943, IT IS BARRED BY THE SIX-YEAR STATUTE OF
LIMITATIONS, 38 U.S.C. SEC. 445.  WE HOLD THAT, UNDER THE ALLEGATIONS
IN THIS COMPLAINT, PETITIONER IS ENTITLED TO TAKE HER CASE TO A JURY. 

CONGRESS HAS PROVIDED IN 38 U.S.C. SEC. 810 THAT A PRESUMPTION OF
DEATH SHALL ARISE UPON THE CONTINUED AND UNEXPLAINED ABSENCE OF THE
INSURED FOR A PERIOD OF SEVEN YEARS.  WHERE PROOF OF THE INSURED'S
DEATH MUST REST PRIMARILY UPON HIS UNEXPLAINED ABSENCE, SUIT MAY NOT BE
MAINTAINED, AS A PRACTICAL MATTER, PRIOR TO THE EXPIRATION OF THE
STATUTORY SEVEN-YEAR PERIOD.  PETITIONER'S CAUSE OF ACTION, THEREFORE,
"ACCRUED" AT THE TIME WHEN, UNDER SEC. 810, SHE MIGHT HAVE SUCCESSFULLY
MAINTAINED HER SUIT, AND THAT IS THE DATE FROM WHICH THE SIX-YEAR
STATUTE OF LIMITATIONS SHOULD BE COMPUTED. 

MOREOVER, NOTHING IN THE PROVISION OF SEC. 810 THAT THE DEATH OF THE
INSURED "AS OF THE DATE OF THE EXPIRATION OF SUCH PERIOD  ...  MAY  ...
BE CONSIDERED AS SUFFICIENTLY PROVED" PRECLUDES THE BENEFICIARY FROM
INTRODUCING FURTHER EVIDENCE FROM WHICH THE JURY MIGHT CONCLUDE THAT
THE INSURED'S PRESUMED DEATH OCCURRED AT AN EARLIER DATE WHEN THE
POLICY WAS STILL IN FORCE.  UNITED STATES V. WILLHITE, 219 F.2D 343.*
THE JURY MIGHT SO CONCLUDE HERE, IF PETITIONER CAN PROVE THE
ALLEGATIONS OF THE COMPLAINT CONCERNING THE INSURED'S FRAIL HEALTH AND
DISABILITY OR OTHER RELEVANT FACTS.  THE PRESUMPTION LEAVES IT OPEN TO
PROVE THE PRECISE TIME OF THE DEATH, AS THE STATUTE DOES NOT PURPORT TO
CREATE A CONCLUSIVE PRESUMPTION THAT THE INSURED DIED AT THE END OF THE
SEVEN-YEAR PERIOD.  TO COMPUTE THE SIX-YEAR LIMITATION PERIOD FROM THE
DATE WHICH THE TRIER OF FACT ESTABLISHES AS THE DATE OF DEATH WOULD BE
TO SAY THAT THE BENEFICIARY'S RIGHT TO RECOVER HAD EXPIRED BEFORE SHE
COULD HAVE SUCCESSFULLY PROSECUTED A LAWSUIT TO ENFORCE THAT RIGHT.  IT
IS ONLY WHERE THE BENEFICIARY PROVES MERELY THE FACT OF THE INSURED'S
SEVEN YEARS' UNEXPLAINED ABSENCE THAT THE STATUTE ESTABLISHES THE
PRESUMPTION OF DEATH AS OF THE END OF THAT PERIOD.  THE "CONTINGENCY ON
WHICH THE CLAIM IS FOUNDED," AS USED IN 38 U.S.C. SEC. 445, MUST,
THEREFORE, MEAN THE END OF THE SEVEN-YEAR PERIOD WHEN THE PRESUMPTION
OF DEATH AROSE. 

*THAT WAS THE VIEW EVEN BEFORE THE PRESUMPTION OF DEATH AT THE END OF
SEVEN YEARS' ABSENCE WAS CODIFIED.  IN DAVIE V. BRIGGS, 97 U.S. 628,
634, THE COURT SAID, "IF IT APPEARS IN EVIDENCE THAT THE ABSENT PERSON,
WITHIN THE SEVEN YEARS, ENCOUNTERED SOME SPECIFIC PERIL, OR WITHIN THAT
PERIOD CAME WITHIN THE RANGE OF SOME IMPENDING OR IMMEDIATE DANGER,
WHICH MIGHT REASONABLY BE EXPECTED TO DESTROY LIFE, THE COURT OR JURY
MAY INFER THAT LIFE CEASED BEFORE THE EXPIRATION OF THE SEVEN YEARS." 

THAT SEEMS TO US TO BE THE COMMON SENSE OF THE MATTER; AND COMMON
SENSE OFTEN MAKES GOOD LAW. 

FURTHERMORE THE ALLEGATIONS OF PERMANENT AND TOTAL DISABILITY AT THE
TIME OF DISAPPEARANCE OF THE INSURED, IF PROVED, WOULD BRING THE
PETITIONER WITHIN THE PREMIUM WAIVER PROVISIONS OF 38 U.S.C. SEC.
802(N).  SINCE THE CLAIM WAS FILED BY PETITIONER WITHIN ONE YEAR
SUBSEQUENT TO THE PRESUMED DATE OF DEATH, IT SHOULD BE CONSIDERED AS
INCLUDING THE LESSER CLAIM OF PREMIUM WAIVER.  HENCE, EVEN THOUGH THE
JURY FOUND THE ACTUAL DATE OF DEATH TO BE LATER THAN 1943, THE COVERAGE
OF THE POLICY MIGHT CONTINUE.  AS WE READ THE COMPLAINT, THIS
ALTERNATIVE CAUSE OF ACTION WOULD ALSO NOT HAVE ACCRUED UNTIL 1950; AND
THE SIX-YEAR STATUTE OF LIMITATIONS HAD NOT RUN WHEN THIS SUIT WAS
BROUGHT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR TRIAL.  REVERSED. 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BURTON JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

PETITIONER SUES TO RECOVER DEATH BENEFITS UNDER A NATIONAL SERVICE
LIFE INSURANCE POLICY ON THE LIFE OF HER SON, A DRAFTEE IN THE UNITED
STATES ARMY.  THE CASE IS BEFORE US ONLY ON THE COMPLAINT, WHOSE
SUBSTANTIAL ALLEGATIONS ARE THESE:  THE INSURED DISAPPEARED FROM HIS
POST IN THE ARMY ON OR ABOUT JULY 30, 1943, AND HAS NOT BEEN HEARD OF
SINCE.  AT THE TIME OF HIS DISAPPEARANCE, FOR SOME TIME BEFORE, AND
CONTINUOUSLY THEREAFTER UNTIL HIS DEATH, THE INSURED SUFFERED FROM
"CHOLERA, NERVOUS TROUBLE, MENTAL TROUBLE, ST. VITUS DANCE, GENERALLY
DEBILITY AND WEAKNESS AND DESPONDENCY," WHICH PREVENTED HIM FROM
PURSUING ANY GAINFUL OCCUPATION AND ENTITLED HIM TO A WAIVER OF
PREMIUMS ON THE POLICY, AND "TO HAVE SAID POLICY CONTINUE IN FULL FORCE
AND EFFECT UNTIL HIS DEATH."  IT IS THEN ALLEGED THAT BY REASON OF THE
INSURED'S DISAPPEARANCE AND AILMENTS "THE LAW PRESUMES AND PETITIONER
AVERS THAT HE DIED ON OR ABOUT JULY 30, 1943, AND WHILE THE POLICY WAS
IN FULL FORCE AND EFFECT AND ...  THAT ON OR ABOUT JULY 30, 1950, AT
THE EXPIRATION OF SAID SEVEN YEARS" PETITIONER BECAME ENTITLED TO THE
POLICY PROCEEDS.  PETITIONER FINALLY ALLEGES THAT SHE MADE "DUE
APPLICATION" TO THE VETERANS ADMINISTRATION FOR THE POLICY PROCEEDS AND
"TO HAVE SAID INSURANCE CONTRACT CONSTRUED AS BEING IN FULL FORCE AND
EFFECT AT THE TIME OF ASSURED'S DEATH," BUT THAT HER APPLICATION WAS
REFUSED BY THE ADMINISTRATION ON JULY 18, 1951. 

ACTIONS ON LIFE INSURANCE POLICIES ISSUED UNDER THE NATIONAL SERVICE
LIFE INSURANCE ACT ARE GOVERNED BY A SIX-YEAR STATUTE OF LIMITATIONS. 
(FN1)  SECTION 610 OF THE ACT, 38 U.S.C. SEC. 810, ABOLISHES ALL STATE
LAW PRESUMPTIONS OF DEATH IN CONNECTION WITH THESE POLICIES, AND
SUBSTITUTES A STATUTORY PRESUMPTION OF DEATH AT THE EXPIRATION OF SEVEN
YEARS' UNEXPLAINED ABSENCE.  (FN2)  AND SEC. 602(N) OF THE ACT, 38
U.S.C. SEC. 802(N), PROVIDES FOR WAIVER OF PREMIUMS UNDER CERTAIN
CONDITIONS, UPON APPLICATION OF THE BENEFICIARY WITHIN ONE YEAR AFTER
THE INSURED'S DEATH.  (FN3) 

THE COURT OF APPEALS AFFIRMED THE DISMISSAL OF THE COMPLAINT FOR
INSUFFICIENCY AND ALSO HELD THE ACTION BARRED BY LIMITATIONS.  (FN4)
THIS COURT HOLDS THE COMPLAINT SUFFICIENT AND THE ACTION NOT BARRED. 

IF PETITIONER CAN PROVE THAT THE POLICY WAS STILL IN FORCE IN 1950,
THE DATE WHEN DEATH IS PRESUMED UNDER 38 U.S.C. SEC. 810, HER SUIT IS
CLEARLY TIMELY AND SHE IS ENTITLED TO RECOVER.  I AGREE WITH THE COURT
THAT, LIBERALLY READ, THE COMPLAINT STATES FACTS WHICH SHOULD ALLOW HER
SO TO PROVE. 

ASSUMING, HOWEVER, THAT THE POLICY WAS NO LONGER IN FORCE IN 1950, I
THINK THE SUIT IS BARRED BY LIMITATIONS, AND I MUST DISSENT FROM THIS
ASPECT OF THE COURT'S HOLDING.  THE INSURED DISAPPEARED IN 1943. 
PETITIONER ALLEGES THAT DEATH OCCURRED IN 1943, AS INDEED SHE MUST,
SINCE WE NOW ASSUME THAT THE POLICY EXPIRED SOON THEREAFTER.  BUT IF
DEATH OCCURRED IN 1943, THE CAUSE OF ACTION ACCRUED AT THAT TIME, AND
IS THEREFORE BARRED AFTER SIX YEARS; AND SUIT WAS NOT BROUGHT UNTIL
1954.  YET PETITIONER ASKS US TO HOLD THAT FOR THE PURPOSES OF THE
STATUTE OF LIMITATIONS WE USE THE PRESUMPTION OF SEC. 810, THAT DEATH
OCCURS AT THE EXPIRATION OF A CONTINUED SEVEN-YEAR PERIOD OF ABSENCE,
IN ORDER TO POSTPONE THE ACCRUAL OF A CAUSE OF ACTION NECESSARILY
FOUNDED ON A DEATH ALLEGEDLY OCCURRING AT THE BEGINNING OF THE SEVEN
YEARS.  I DO NOT UNDERSTAND HOW WE CAN ACCEPT ANY SUCH THEORY. 
CONGRESS HAS PROVIDED THAT THE SUIT MUST BE BROUGHT WITHIN SIX YEARS
AFTER THE CAUSE OF ACTION ACCRUED, AND THAT THE CAUSE ACCRUES ON THE
"HAPPENING OF THE CONTINGENCY ON WHICH THE CLAIM IS FOUNDED."  (FN5)
THE CONTINGENCY WHICH HERE STARTS THE RUNNING OF THE STATUTE IS CLEARLY
THE DEATH OF THE INSURED.  UNITED STATES V. TOWERY, 306 U.S. 324.  IF
THE INSURED DIED IN 1943, AS THE PETITIONER AVERS, SHE SHOULD HAVE
BROUGHT SUIT WITHIN SIX YEARS THEREAFTER, BEFORE 1949.  FOR PETITIONER
IS RELYING ON ACTUAL DEATH, NOT THE PRESUMED DEATH PROVIDED FOR BY
CONGRESS IN CASES OF DISAPPEARANCES.  SHE CANNOT RELY ON THE LATTER,
FOR CONGRESS HAS UNEQUIVOCALLY STATED THAT THE PRESUMPTION CREATED BY
SEVEN YEARS' UNEXPLAINED ABSENCE IS THAT THE INSURED DIED AT THE END OF
THAT PERIOD, AND THE POLICY WAS THEN, BY HYPOTHESIS, NO LONGER IN
EFFECT.  (FN6) 

THE DILEMMA PETITIONER FACES IS CLEARLY SELF-INFLICTED.  CONGRESS HAS
PROVIDED A FAIR CHOICE.  IF PETITIONER CAN PROVE DEATH IN 1943, AS SHE
MUST IF THE POLICY EXPIRED THEN, SHE HAS SIX YEARS WITHIN WHICH TO
BRING SUIT TO PROVE IT.  IF, ON THE OTHER HAND, PETITIONER HAS NO PROOF
OF ACTUAL DEATH AT ALL, SHE MUST MERELY KEEP THE POLICY ALIVE BY
PAYMENT OF PREMIUMS OR APPLICATION FOR WAIVER UNTIL THE END OF SEVEN
YEARS, AND SHE THEN HAS SIX MORE YEARS IN WHICH TO SUE ON THE BASIS OF
PRESUMED DEATH AT THE END OF THE SEVEN-YEAR PERIOD. 

THE COURT SAYS THAT "TO COMPUTE THE SIX-YEAR LIMITATION PERIOD FROM
THE DATE WHICH THE TRIER OF FACT ESTABLISHES AS THE DATE OF DEATH WOULD
BE TO SAY THAT THE BENEFICIARY'S RIGHT TO RECOVER HAD EXPIRED BEFORE
SHE COULD HAVE SUCCESSFULLY PROSECUTED A LAWSUIT TO ENFORCE THAT
RIGHT."  I UNDERSTAND NEITHER THE LOGIC NOR THE POLICY OF THIS
ARGUMENT.  SURELY IN EVERY LAWSUIT ON A LIFE INSURANCE POLICY THE
STATUTE OF LIMITATIONS RUNS FROM THE DATE OF DEATH AND YET THE DATE OF
DEATH IS SOMETHING TO BE PROVED IN THE LAWSUIT ITSELF.  IN FACT I CAN
THINK OF NO LITIGATION IN WHICH THE STATUTE OF LIMITATIONS DOES NOT RUN
FROM THE TIME THE CAUSE OF ACTION ACCRUES AND THE PLAINTIFF NEED NOT
PROVE AT TRIAL BOTH THAT THERE IS A CAUSE OF ACTION AND THAT IT ACCRUED
WITHIN THE PERIOD OF LIMITATIONS.  WHY IS IT UNFAIR TO SAY TO A
PLAINTIFF WHO MUST PROVE A 1943 DEATH THAT SHE MUST PROVE IT WITHIN SIX
YEARS THEREAFTER?  NOT ONLY IS IT UNLIKELY THAT PLAINTIFF WILL BE IN A
BETTER POSITION TO PROVE A 1943 DEATH IN 1954 THAN SHE WAS IN 1949, BUT
THE WHOLE ESSENCE OF THE POLICY BEHIND STATUTES OF LIMITATIONS RUNS
COUNTER TO ANY SUCH ASSUMPTION. 

IT IS ARGUED THAT SUCH A RESULT WOULD BE HARSH, IN THAT A BENEFICIARY
SHOULD BE LEFT FREE TO PROVE IN THE SAME ACTION EITHER ACTUAL OR
PRESUMED DEATH, AND THAT PROOF OF ACTUAL DEATH MAY NOT TURN UP UNTIL
AFTER SIX YEARS HAVE PASSED; YET A BENEFICIARY MUST WAIT SEVEN BEFORE
SUING ON THE BASIS OF PRESUMED DEATH.  (FN7)  BUT THIS IS ONLY ANOTHER
WAY OF URGING THAT THE STATUTE OF LIMITATIONS BE WAIVED EVERY TIME A
PLAINTIFF HAS DIFFICULTY IN COLLECTING PROOF DURING THE PERIOD GIVEN BY
THE STATUTE.  AND IT HAS BEEN THE CONSISTENT OPINION OF THIS COURT THAT
LIMITATIONS, PARTICULARLY AGAINST THE UNITED STATES, MAY NOT BE TOLLED,
WITHOUT STATUTORY AUTHORIZATION, MERELY BECAUSE A PLAINTIFF MIGHT NOT
BE IN A POSITION TO CARRY THE BURDEN OF PROOF WITHIN THE STATUTORY
PERIOD.  MCIVER V. RAGAN, 2 WHEAT.  25; MCMAHON V. UNITED STATES, 342
U.S. 25; PILLSBURY V. UNITED ENGINEERING CO., 342 U.S. 197; UNEXCELLED
CHEMICAL CORP. V. UNITED STATES, 345 U.S. 59. 

IMPORTANT CONSIDERATIONS OF POLICY BUTTRESS THAT OPINION.  HEREAFTER
IN EVERY CASE OF DISAPPEARANCE A BENEFICIARY MAY, WITHOUT KEEPING THE
POLICY ALIVE, WAIT THIRTEEN YEARS BEFORE SUING ON THE POLICY, AND MAY
ALLEGE AND PROVE THAT DEATH OCCURRED THIRTEEN YEARS THERETOFORE. 
SURELY IN THE INTERVENING YEARS THERE WILL HAVE BEEN LOSS OF EVIDENCE
DUE TO THE DEATH OF SOME WITNESSES, CLOUDING IN THE RECOLLECTION OF
OTHERS, AND LOSS OF RECORDS.  IN FACT IN THIS VERY CASE THE GOVERNMENT
IS NOW PUT TO THE TASK OF MEETING NUMEROUS ALLEGATIONS WITH RESPECT TO
THE INSURED'S PHYSICAL AND MENTAL CONDITION, THE CIRCUMSTANCES OF HIS
DISAPPEARANCE, ALL IN 1943, AND HIS LIKELY MOVEMENTS AFTER
DISAPPEARANCE.  THE WHOLE PURPOSE OF THE STATUTE OF LIMITATIONS, IT
SEEMS TO ME, IS TO SAVE LITIGANTS THE BURDENSOME EFFORT OF HAVING TO
COLLECT AND MEET SUCH STALE EVIDENCE.  THE COURT OVERRIDES THAT POLICY
TODAY IN ORDER TO GIVE ONE PLAINTIFF, WHOSE CASE HAS HUMAN APPEAL, A
CHANCE TO RECOVER.  THUS IS BAD LAW MADE.    FN1  38 U.S.C. SEC. 445,
SO FAR AS PERTINENT, PROVIDES:  "NO SUIT  ...  ON UNITED STATES
GOVERNMENT LIFE (CONVERTED) INSURANCE SHALL BE ALLOWED UNDER THIS
THE RIGHT ACCRUED FOR WHICH THE CLAIM IS MADE:  PROVIDED, THAT FOR THE
PURPOSES OF THIS SECTION IT SHALL BE DEEMED THAT THE RIGHT ACCRUED ON
THE HAPPENING OF THE CONTINGENCY ON WHICH THE CLAIM IS FOUNDED  ...
."    FN2  "NO STATE LAW PROVIDING FOR PRESUMPTION OF DEATH SHALL BE
APPLICABLE TO CLAIMS FOR NATIONAL SERVICE LIFE INSURANCE.  IF EVIDENCE
SATISFACTORY TO THE ADMINISTRATOR IS PRODUCED ESTABLISHING THE FACT OF
THE CONTINUED AND UNEXPLAINED ABSENCE OF ANY INDIVIDUAL FROM HIS HOME
AND FAMILY FOR A PERIOD OF SEVEN YEARS, DURING WHICH PERIOD NO EVIDENCE
OF HIS EXISTENCE HAS BEEN RECEIVED, THE DEATH OF SUCH INDIVIDUAL AS OF
THE DATE OF THE EXPIRATION OF SUCH PERIOD MAY, FOR THE PURPOSES OF THIS
SUBCHAPTER, BE CONSIDERED AS SUFFICIENTLY PROVED." 

FN3  "UPON APPLICATION BY THE INSURED AND UNDER SUCH REGULATIONS AS
THE ADMINISTRATOR MAY PROMULGATE, PAYMENT OF PREMIUMS ON SUCH INSURANCE
MAY BE WAIVED DURING THE CONTINUOUS TOTAL DISABILITY OF THE INSURED,
WHICH CONTINUES OR HAS CONTINUED FOR SIX OR MORE CONSECUTIVE MONTHS, IF
SUCH DISABILITY COMMENCED (1) SUBSEQUENT TO THE DATE OF HIS APPLICATION
FOR INSURANCE, (2) WHILE THE INSURANCE WAS IN FORCE UNDER PREMIUM
PAYING CONDITIONS, AND (3) PRIOR TO THE INSURED'S SIXTIETH BIRTHDAY
...  .  PROVIDED FURTHER, THAT IN ANY CASE IN WHICH THE ADMINISTRATOR
FINDS THAT THE INSURED'S FAILURE TO MAKE TIMELY APPLICATION FOR WAIVER
OF PREMIUMS OR HIS FAILURE TO SUBMIT SATISFACTORY EVIDENCE OF THE
EXISTENCE OR CONTINUANCE OF TOTAL DISABILITY WAS DUE TO CIRCUMSTANCES
BEYOND HIS CONTROL, THE ADMINISTRATOR MAY GRANT WAIVER OR CONTINUANCE
OF WAIVER OF PREMIUMS:  AND PROVIDED FURTHER, THAT IN THE EVENT OF
DEATH OF THE INSURED WITHOUT FILING APPLICATION FOR WAIVER, THE
BENEFICIARY, WITHIN ONE YEAR AFTER THE DEATH OF THE INSURED OR AUGUST
1, 1946, WHICHEVER BE THE LATER, OR, IF THE BENEFICIARY BE INSANE OR A
MINOR, WITHIN ONE YEAR AFTER REMOVAL OF SUCH LEGAL DISABILITY, MAY FILE
APPLICATION FOR WAIVER WITH EVIDENCE OF THE INSURED'S RIGHT TO WAIVER
UNDER THIS SECTION  ...   ." 

FN4  229 F.2D 503. 

FN5  38 U.S.C. SEC. 445. 

FN6  AT COMMON LAW SEVEN YEARS' UNEXPLAINED ABSENCE RAISED A
PRESUMPTION AS TO THE FACT OF DEATH BUT NONE AS TO THE TIME OF DEATH. 
DAVIE V. BRIGGS, 97 U.S. 628, 634.  CONGRESS, HOWEVER, IN 38 U.S.C.
SEC. 810, DID NOT ADOPT THE COMMON-LAW RULE ENUNCIATED IN DAVIE V.
BRIGGS, THE STATUTE DECLARING THAT DEATH IS PRESUMED TO HAVE OCCURRED
AT THE END OF THE PERIOD OF ABSENCE. 

FN7  I SEE NO REASON WHY A BENEFICIARY, UNCERTAIN AS TO WHETHER HE
SHOULD RELY ON ACTUAL OR PRESUMED DEATH, CANNOT PROTECT HIMSELF BY
KEEPING THE POLICY IN FORCE AND FILING HIS COMPLAINT WITHIN SIX YEARS
OF THE INSURED'S DISAPPEARANCE.  SEE FED. RULES CIV. PROC., 8(E)(2).  I
THINK IT UNTENABLE TO SUGGEST THAT SUCH A COMPLAINT WOULD BE DEMURRABLE
AS PREMATURELY BROUGHT. 
..END :













ROVIARO V. UNITED STATES 353 U.S. 53 


NO. 58.  ARGUED DECEMBER 11, 1956 - DECIDED MARCH 25, 1957 - 229 F.2D
812, REVERSED AND REMANDED. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT FOR VIOLATING 21
U.S.C. SEC. 174, BY KNOWINGLY POSSESSING AND TRANSPORTING HEROIN
IMPORTED UNLAWFULLY.  IN THE FACE OF REPEATED DEMANDS BY PETITIONER FOR
DISCLOSURE, THE TRIAL COURT SUSTAINED THE GOVERNMENT'S REFUSAL TO
DISCLOSE THE IDENTITY OF AN UNDERCOVER INFORMER WHO HAD TAKEN A
MATERIAL PART IN BRINGING ABOUT PETITIONER'S POSSESSION OF THE DRUGS,
HAD BEEN PRESENT WITH PETITIONER AT THE OCCURRENCE OF THE ALLEGED
CRIME, AND MIGHT HAVE BEEN A MATERIAL WITNESS AS TO WHETHER PETITIONER
KNOWINGLY TRANSPORTED THE DRUGS AS CHARGED.  HELD:  IN THE
CIRCUMSTANCES OF THIS CASE, FAILURE OF THE COURT TO REQUIRE DISCLOSURE
OF THE IDENTITY OF THE INFORMER WAS REVERSIBLE ERROR.  PP. 54-66. 

(A)  WHERE DISCLOSURE OF AN INFORMER'S IDENTITY, OR OF THE CONTENTS
OF HIS COMMUNICATION, IS RELEVANT AND HELPFUL TO THE DEFENSE OF AN
ACCUSED, OR IS ESSENTIAL TO A FAIR TRIAL, THE GOVERNMENT'S PRIVILEGE TO
WITHHOLD DISCLOSURE OF THE INFORMER'S IDENTITY MUST GIVE WAY.  PP. 60
62. 

(B)  HOWEVER, NO FIXED RULE IS JUSTIFIABLE.  THE PUBLIC INTEREST IN
PROTECTING THE FLOW OF INFORMATION TO THE GOVERNMENT MUST BE BALANCED
AGAINST THE INDIVIDUAL'S RIGHT TO PREPARE HIS DEFENSE.  WHETHER
NONDISCLOSURE IS ERRONEOUS DEPENDS ON THE PARTICULAR CIRCUMSTANCES OF
EACH CASE, TAKING INTO CONSIDERATION THE CRIME CHARGED, THE POSSIBLE
DEFENSES, THE POSSIBLE SIGNIFICANCE OF THE INFORMER'S TESTIMONY, AND
OTHER RELEVANT FACTORS.  P. 62. 

(C)  IN THIS CASE, THE INFORMER WAS NOT EXPRESSLY MENTIONED IN THE
RELEVANT CHARGE OF THE INDICTMENT; BUT THE CHARGE, VIEWED IN CONNECTION
WITH THE EVIDENCE INTRODUCED AT HIS TRIAL, IS SO CLOSELY RELATED TO THE
INFORMER AS TO MAKE HIS IDENTITY AND TESTIMONY HIGHLY MATERIAL.  PP. 62
63. 

(D)  THE PROVISION OF THE STATUTE AUTHORIZING A CONVICTION WHEN THE
GOVERNMENT HAS PROVED THAT THE ACCUSED POSSESSED NARCOTICS - UNLESS HE
EXPLAINS OR JUSTIFIES SUCH POSSESSION - EMPHASIZES PETITIONER'S VITAL
NEED FOR ACCESS TO ANY MATERIAL WITNESS.  P. 63. 

(E)  THE CIRCUMSTANCES OF THIS CASE DEMONSTRATE THAT THE INFORMER'S
POSSIBLE TESTIMONY WAS HIGHLY RELEVANT AND MIGHT HAVE BEEN HELPFUL TO
THE DEFENSE.  PP. 63-65. 

(F)  ON THE RECORD IN THIS CASE, IT CANNOT BE ASSUMED THAT THE
INFORMER WAS KNOWN TO PETITIONER AND AVAILABLE TO HIM AS A WITNESS, NOR
THAT THE INFORMER HAD DIED BEFORE THE TRIAL.  P. 60, N. 8. 

(G)  THE TRIAL COURT ERRED ALSO IN DENYING, PRIOR TO THE TRIAL,
PETITIONER'S MOTION FOR A BILL OF PARTICULARS, INSOFAR AS IT REQUESTED
THE INFORMER'S IDENTITY AND ADDRESS, PARTICULARLY BECAUSE COUNT 1 OF
THE INDICTMENT CHARGED AN UNLAWFUL SALE OF HEROIN TO THE INFORMER.  P.
65, N. 15. 

ROVIARO V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS A CONVICTION FOR VIOLATION OF THE NARCOTIC DRUGS
IMPORT AND EXPORT ACT, AS AMENDED.  (FN1)  THE PRINCIPAL ISSUE IS
WHETHER THE UNITED STATES DISTRICT COURT COMMITTED REVERSIBLE ERROR
WHEN IT ALLOWED THE GOVERNMENT TO REFUSE TO DISCLOSE THE IDENTITY OF AN
UNDERCOVER EMPLOYEE WHO HAD TAKEN A MATERIAL PART IN BRINGING ABOUT THE
POSSESSION OF CERTAIN DRUGS BY THE ACCUSED, HAD BEEN PRESENT WITH THE
ACCUSED AT THE OCCURRENCE OF THE ALLEGED CRIME, AND MIGHT BE A MATERIAL
WITNESS AS TO WHETHER THE ACCUSED KNOWINGLY TRANSPORTED THE DRUGS AS
CHARGED.  FOR THE REASONS HEREAFTER STATED, WE HOLD THAT, UNDER THE
CIRCUMSTANCES HERE PRESENT, THIS WAS REVERSIBLE ERROR. 

IN 1955, IN THE NORTHERN DISTRICT OF ILLINOIS, PETITIONER, ALBERT
ROVIARO, WAS INDICTED ON TWO COUNTS BY A FEDERAL GRAND JURY.  THE FIRST
COUNT CHARGED THAT ON AUGUST 12, 1954, AT CHICAGO, ILLINOIS, HE SOLD
HEROIN TO ONE "JOHN DOE" IN VIOLATION OF 26 U.S.C. SEC. 2554(A).  THE
SECOND CHARGED THAT ON THE SAME DATE AND IN THE SAME CITY HE "DID THEN
AND THERE FRAUDULENTLY AND KNOWINGLY RECEIVE, CONCEAL, BUY AND
FACILITATE THE TRANSPORTATION AND CONCEALMENT AFTER IMPORTATION OF  ...
HEROIN, KNOWING THE SAME TO BE IMPORTED INTO THE UNITED STATES CONTRARY
TO LAW; IN VIOLATION OF SECTION 174, TITLE 21, UNITED STATES CODE." 

BEFORE TRIAL, PETITIONER MOVED FOR A BILL OF PARTICULARS REQUESTING,
AMONG OTHER THINGS, THE NAME, ADDRESS AND OCCUPATION OF "JOHN DOE." 
THE GOVERNMENT OBJECTED ON THE GROUND THAT JOHN DOE WAS AN INFORMER AND
THAT HIS IDENTITY WAS PRIVILEGED.  THE MOTION WAS DENIED. 

PETITIONER, WHO WAS REPRESENTED BY COUNSEL, WAIVED A JURY AND WAS
TRIED BY THE DISTRICT COURT.  DURING THE TRIAL JOHN DOE'S PART IN THE
CHARGED TRANSACTION WAS DESCRIBED BY GOVERNMENT WITNESSES, AND COUNSEL
FOR PETITIONER, IN CROSS-EXAMINING THEM, SOUGHT REPEATEDLY TO LEARN
JOHN DOE'S IDENTITY.   THE COURT DECLINED TO PERMIT THIS CROSS
EXAMINATION AND JOHN DOE WAS NOT PRODUCED, IDENTIFIED, OR OTHERWISE
MADE AVAILABLE.  PETITIONER WAS FOUND GUILTY ON BOTH COUNTS AND WAS
SENTENCED TO TWO YEARS' IMPRISONMENT AND A FINE OF $5 ON EACH COUNT,
THE SENTENCES TO RUN CONCURRENTLY.  (FN2)  THE COURT OF APPEALS
SUSTAINED THE CONVICTION, HOLDING THAT THE CONCURRENT SENTENCE WAS
SUPPORTED BY THE CONVICTION ON COUNT 2 AND THAT THE TRIAL COURT HAD NOT
ABUSED ITS DISCRETION IN DENYING PETITIONER'S REQUESTS FOR DISCLOSURE
OF DOE'S IDENTITY.  229 F.2D 812.  WE GRANTED CERTIORARI, 351 U.S. 936,
IN ORDER TO PASS UPON THE PROPRIETY OF THE NONDISCLOSURE OF THE
INFORMER'S IDENTITY AND TO CONSIDER AN ALLEGED CONFLICT WITH PORTOMENE
V. UNITED STATES, 221 F.2D 582; UNITED STATES V. CONFORTI, 200 F.2D
365; AND SORRENTINO V. UNITED STATES, 163 F.2D 627. 

AT THE TRIAL, THE GOVERNMENT RELIED ON THE TESTIMONY OF TWO FEDERAL
NARCOTICS AGENTS, DURHAM AND FIELDS, AND TWO CHICAGO POLICE OFFICERS,
BRYSON AND SIMS, EACH OF WHOM KNEW PETITIONER BY SIGHT.  ON THE NIGHT
OF AUGUST 12, 1954, THESE FOUR OFFICERS MET AT 75TH STREET AND PRAIRIE
AVENUE IN CHICAGO WITH AN INFORMER DESCRIBED ONLY AS JOHN DOE.  (FN3)
DOE AND HIS CADILLAC CAR WERE SEARCHED AND NO NARCOTICS WERE FOUND. 
BRYSON SECRETED HIMSELF IN THE TRUNK OF DOE'S CADILLAC, TAKING WITH HIM
A DEVICE WITH WHICH TO RAISE THE TRUNK LID FROM THE INSIDE.  DOE THEN
DROVE THE CADILLAC TO 70TH PLACE AND ST. LAWRENCE AVENUE, FOLLOWED BY
DURHAM IN ONE GOVERNMENT CAR AND FIELD AND SIMS IN ANOTHER.  AFTER AN
HOUR'S WAIT, AT ABOUT 11 O'CLOCK, PETITIONER ARRIVED IN A PONTIAC,
ACCOMPANIED BY AN UNIDENTIFIED MAN.  PETITIONER IMMEDIATELY ENTERED
DOE'S CADILLAC, TAKING A FRONT SEAT BESIDE DOE.  THEY THEN PROCEEDED BY
A CIRCUITOUS ROUTE TO 74TH STREET NEAR CHAMPLAIN AVENUE.  BOTH
GOVERNMENT CARS TRAILED THE CADILLAC BUT ONLY THE ONE DRIVEN BY DURHAM
MANAGED TO FOLLOW IT TO 74TH STREET.  WHEN THE CADILLAC CAME TO A STOP
ON 74TH STREET, DURHAM STEPPED OUT OF HIS CAR ONTO THE SIDEWALK AND SAW
PETITIONER ALIGHT FROM THE CADILLAC ABOUT 100 FEET AWAY.  DURHAM SAW
PETITIONER WALK A FEW FEET TO A NEARBY TREE, PICK UP A SMALL PACKAGE,
RETURN TO THE OPEN RIGHT FRONT DOOR OF THE CADILLAC, MAKE A MOTION AS
IF DEPOSITING THE PACKAGE IN THE CAR, AND THEN WAVE TO DOE AND WALK
AWAY.  DURHAM WENT IMMEDIATELY TO THE CADILLAC AND RECOVERED A PACKAGE
FROM THE FLOOR.  HE SIGNALED TO BRYSON TO COME OUT OF THE TRUNK AND
THEN WALKED DOWN THE STREET IN TIME TO SEE PETITIONER RE-ENTER THE
PONTIAC, PARKED NEARBY, AND RIDE AWAY. 

MEANWHILE, BRYSON, CONCEALED IN THE TRUNK OF THE CADILLAC, HAD HEARD
A CONVERSATION BETWEEN JOHN DOE AND PETITIONER AFTER THE LATTER HAD
ENTERED THE CAR.  HE HEARD PETITIONER GREET JOHN DOE AND DIRECT HIM
WHERE TO DRIVE.  AT ONE POINT, PETITIONER ADMONISHED HIM TO PULL OVER
TO THE CURB, CUT THE MOTOR, AND TURN OUT THE LIGHTS SO AS TO LOSE A
"TAIL."  HE THEN TOLD HIM TO CONTINUE "FURTHER DOWN."  PETITIONER ASKED
ABOUT MONEY DOE OWED HIM.  HE ADVISED DOE THAT HE HAD BROUGHT HIM
"THREE PIECES THIS TIME."  WHEN BRYSON HEARD DOE BEING ORDERED TO STOP
THE CAR, HE RAISED THE LID OF THE TRUNK SLIGHTLY.  AFTER THE CAR
STOPPED, HE SAW PETITIONER WALK TO A TREE, PICK UP A PACKAGE, AND
RETURN TOWARD THE CAR.  HE HEARD PETITIONER SAY, "HERE IT IS," AND
"I'LL CALL YOU IN A COUPLE OF DAYS."  SHORTLY THEREAFTER HE HEARD
DURHAM'S SIGNAL TO COME OUT AND EMERGED FROM THE TRUNK TO FIND DURHAM
HOLDING A SMALL PACKAGE FOUND TO CONTAIN THREE GLASSINE ENVELOPES
CONTAINING A WHITE POWDER. 

A FIELD TEST OF THE POWDER HAVING INDICATED THAT IT CONTAINED AN
OPIUM DERIVATIVE, THE OFFICERS, AT ABOUT 12:30 A.M., ARRESTED
PETITIONER AT HIS HOME AND TOOK HIM, ALONG WITH DOE, TO CHICAGO POLICE
HEADQUARTERS.  THERE PETITIONER WAS CONFRONTED WITH DOE, WHO DENIED
THAT HE KNEW OR HAD EVER SEEN PETITIONER.  (FN4)  SUBSEQUENT CHEMICAL
ANALYSIS REVEALED THAT THE POWDER CONTAINED HEROIN. 

                                          I. 

PETITIONER CONTENDS THAT THE TRIAL COURT ERRED IN UPHOLDING THE RIGHT
OF THE GOVERNMENT TO WITHHOLD THE IDENTITY OF JOHN DOE.  HE ARGUES THAT
DOE WAS AN ACTIVE PARTICIPANT IN THE ILLEGAL ACTIVITY CHARGED AND THAT,
THEREFORE, THE GOVERNMENT COULD NOT WITHHOLD HIS IDENTITY, HIS
WHEREABOUTS, AND WHETHER HE WAS ALIVE OR DEAD AT THE TIME OF TRIAL. 
(FN5)  THE GOVERNMENT DOES NOT DEFEND THE NONDISCLOSURE OF DOE'S
IDENTITY WITH RESPECT TO COUNT 1, WHICH CHARGED A SALE OF HEROIN TO
JOHN DOE, BUT IT ATTEMPTS TO SUSTAIN THE JUDGMENT ON THE BASIS OF THE
CONVICTION ON COUNT 2, CHARGING ILLEGAL TRANSPORTATION OF NARCOTICS. 
(FN6)  IT ARGUES THAT THE CONVICTION ON COUNT 2 MAY PROPERLY BE UPHELD
SINCE THE IDENTITY OF THE INFORMER, IN THE CIRCUMSTANCES OF THIS CASE,
HAS NO REAL BEARING ON THAT CHARGE AND IS THEREFORE PRIVILEGED. 

WHAT IS USUALLY REFERRED TO AS THE INFORMER'S PRIVILEGE IS IN REALITY
THE GOVERNMENT'S PRIVILEGE TO WITHHOLD FROM DISCLOSURE THE IDENTITY OF
PERSONS WHO FURNISH INFORMATION OF VIOLATIONS OF LAW TO OFFICERS
CHARGED WITH ENFORCEMENT OF THAT LAW.  SCHER V. UNITED STATES, 305 U.S.
251, 254; IN RE QUARLES AND BUTLER, 158 U.S. 532; VOGEL V. GRUAZ, 110
U.S. 311, 316.  THE PURPOSE OF THE PRIVILEGE IS THE FURTHERANCE AND
PROTECTION OF THE PUBLIC INTEREST IN EFFECTIVE LAW ENFORCEMENT.  THE
PRIVILEGE RECOGNIZES THE OBLIGATION OF CITIZENS TO COMMUNICATE THEIR
KNOWLEDGE OF THE COMMISSION OF CRIMES TO LAW-ENFORCEMENT OFFICIALS AND,
BY PRESERVING THEIR ANONYMITY, ENCOURAGES THEM TO PERFORM THAT
OBLIGATION. 

THE SCOPE OF THE PRIVILEGE IS LIMITED BY ITS UNDERLYING PURPOSE. 
THUS, WHERE THE DISCLOSURE OF THE CONTENTS OF A COMMUNICATION WILL NOT
TEND TO REVEAL THE IDENTITY OF AN INFORMER, THE CONTENTS ARE NOT
PRIVILEGED.  (FN7)  LIKEWISE, ONCE THE IDENTITY OF THE INFORMER HAS
BEEN DISCLOSED TO THOSE WHO WOULD HAVE CAUSE TO RESENT THE
COMMUNICATION, THE PRIVILEGE IS NO LONGER APPLICABLE.  (FN8) 

A FURTHER LIMITATION ON THE APPLICABILITY OF THE PRIVILEGE ARISES
FROM THE FUNDAMENTAL REQUIREMENTS OF FAIRNESS.  WHERE THE DISCLOSURE OF
AN INFORMER'S IDENTITY, OR OF THE CONTENTS OF HIS COMMUNICATION, IS
RELEVANT AND HELPFUL TO THE DEFENSE OF AN ACCUSED, OR IS ESSENTIAL TO A
FAIR DETERMINATION OF A CAUSE, THE PRIVILEGE MUST GIVE WAY.  (FN9)  IN
THESE SITUATIONS THE TRIAL COURT MAY REQUIRE DISCLOSURE AND, IF THE
GOVERNMENT WITHHOLDS THE INFORMATION, DISMISS THE ACTION.  (FN10)  MOST
OF THE FEDERAL CASES INVOLVING THIS LIMITATION ON THE SCOPE OF THE
INFORMER'S PRIVILEGE HAVE ARISEN WHERE THE LEGALITY OF A SEARCH WITHOUT
A WARRANT IS IN ISSUE AND THE COMMUNICATIONS OF AN INFORMER ARE CLAIMED
TO ESTABLISH PROBABLE CAUSE.  IN THESE CASES THE GOVERNMENT HAS BEEN
REQUIRED TO DISCLOSE THE IDENTITY OF THE INFORMANT UNLESS THERE WAS
SUFFICIENT EVIDENCE APART FROM HIS CONFIDENTIAL COMMUNICATION.  (FN11) 

THREE RECENT CASES IN THE COURTS OF APPEALS HAVE INVOLVED THE
IDENTICAL PROBLEM RAISED HERE - THE GOVERNMENT'S RIGHT TO WITHHOLD THE
IDENTITY OF AN INFORMER WHO HELPED TO SET UP THE COMMISSION OF THE
CRIME AND WHO WAS PRESENT AT ITS OCCURRENCE.  PORTOMENE V. UNITED
STATES, 221 F.2D 582; UNITED STATES V. CONFORTI, 200 F.2D 365;
SORRENTINO V. UNITED STATES, 163 F.2D 627.  IN EACH CASE IT WAS STATED
THAT THE IDENTITY OF SUCH AN INFORMER MUST BE DISCLOSED WHENEVER THE
INFORMER'S TESTIMONY MAY BE RELEVANT AND HELPFUL TO THE ACCUSED'S
DEFENSE.  (FN12) 

WE BELIEVE THAT NO FIXED RULE WITH RESPECT TO DISCLOSURE IS
JUSTIFIABLE.  THE PROBLEM IS ONE THAT CALLS FOR BALANCING THE PUBLIC
INTEREST IN PROTECTING THE FLOW OF INFORMATION AGAINST THE INDIVIDUAL'S
RIGHT TO PREPARE HIS DEFENSE.  WHETHER A PROPER BALANCE RENDERS
NONDISCLOSURE ERRONEOUS MUST DEPEND ON THE PARTICULAR CIRCUMSTANCES OF
EACH CASE, TAKING INTO CONSIDERATION THE CRIME CHARGED, THE POSSIBLE
DEFENSES, THE POSSIBLE SIGNIFICANCE OF THE INFORMER'S TESTIMONY, AND
OTHER RELEVANT FACTORS. 

                        II. 

THE MATERIALITY OF JOHN DOE'S POSSIBLE TESTIMONY MUST BE DETERMINED
BY REFERENCE TO THE OFFENSE CHARGED IN COUNT 2 AND THE EVIDENCE
RELATING TO THAT COUNT.  THE CHARGE IS IN THE LANGUAGE OF THE STATUTE. 
IT DOES NOT CHARGE MERE POSSESSION; IT CHARGES THAT PETITIONER DID
"FRAUDULENTLY AND KNOWINGLY RECEIVE, CONCEAL, BUY AND FACILITATE THE
TRANSPORTATION AND CONCEALMENT AFTER IMPORTATION OF  ...  HEROIN,
KNOWING THE SAME TO BE IMPORTED INTO THE UNITED STATES CONTRARY TO LAW
...  ."  WHILE JOHN DOE IS NOT EXPRESSLY MENTIONED, THIS CHARGE, WHEN
VIEWED IN CONNECTION WITH THE EVIDENCE INTRODUCED AT THE TRIAL, IS SO
CLOSELY RELATED TO JOHN DOE AS TO MAKE HIS IDENTITY AND TESTIMONY
HIGHLY MATERIAL. 

IT IS TRUE THAT THE LAST SENTENCE OF SUBDIVISION (C) OF SEC. 2
AUTHORIZES A CONVICTION WHEN THE GOVERNMENT HAS PROVED THAT THE ACCUSED
POSSESSED NARCOTICS, UNLESS THE ACCUSED EXPLAINS OR JUSTIFIES SUCH
POSSESSION.  (FN13)  BUT THIS STATUTORY PRESUMPTION DOES NOT REDUCE THE
OFFENSE TO ONE OF MERE POSSESSION OR SHIFT THE BURDEN OF PROOF; IT
MERELY PLACES ON THE ACCUSED, AT A CERTAIN POINT, THE BURDEN OF GOING
FORWARD WITH HIS DEFENSE.  (FN14)  THE FACT THAT PETITIONER HERE WAS
FACED WITH THE BURDEN OF EXPLAINING OR JUSTIFYING HIS ALLEGED
POSSESSION OF THE HEROIN EMPHASIZES HIS VITAL NEED FOR ACCESS TO ANY
MATERIAL WITNESS.  OTHERWISE, THE BURDEN OF GOING FORWARD MIGHT BECOME
UNDULY HEAVY. 

THE CIRCUMSTANCES OF THIS CASE DEMONSTRATE THAT JOHN DOE'S POSSIBLE
TESTIMONY WAS HIGHLY RELEVANT AND MIGHT HAVE BEEN HELPFUL TO THE
DEFENSE.  SO FAR AS PETITIONER KNEW, HE AND JOHN DOE WERE ALONE AND
UNOBSERVED DURING THE CRUCIAL OCCURRENCE FOR WHICH HE WAS INDICTED. 
UNLESS PETITIONER WAIVED HIS CONSTITUTIONAL RIGHT NOT TO TAKE THE STAND
IN HIS OWN DEFENSE, JOHN DOE WAS HIS ONE MATERIAL WITNESS. 
PETITIONER'S OPPORTUNITY TO CROSS-EXAMINE POLICE OFFICER BRYSON AND
FEDERAL NARCOTICS AGENT DURHAM WAS HARDLY A SUBSTITUTE FOR AN
OPPORTUNITY TO EXAMINE THE MAN WHO HAD BEEN NEAREST TO HIM AND TOOK
PART IN THE TRANSACTION.  DOE HAD HELPED TO SET UP THE CRIMINAL
OCCURRENCE AND HAD PLAYED A PROMINENT PART IN IT.  HIS TESTIMONY MIGHT
HAVE DISCLOSED AN ENTRAPMENT.  HE MIGHT HAVE THROWN DOUBT UPON
PETITIONER'S IDENTITY OR ON THE IDENTITY OF THE PACKAGE.  HE WAS THE
ONLY WITNESS WHO MIGHT HAVE TESTIFIED TO PETITIONER'S POSSIBLE LACK OF
KNOWLEDGE OF THE CONTENTS OF THE PACKAGE THAT HE "TRANSPORTED" FROM THE
TREE TO JOHN DOE'S CAR.  THE DESIRABILITY OF CALLING JOHN DOE AS A
WITNESS, OR AT LEAST INTERVIEWING HIM IN PREPARATION FOR TRIAL, WAS A
MATTER FOR THE ACCUSED RATHER THAN THE GOVERNMENT TO DECIDE. 

FINALLY, THE GOVERNMENT'S USE AGAINST PETITIONER OF HIS CONVERSATION
WITH JOHN DOE WHILE RIDING IN DOE'S CAR PARTICULARLY EMPHASIZES THE
UNFAIRNESS OF THE NONDISCLOSURE IN THIS CASE.  THE ONLY PERSON, OTHER
THAN PETITIONER HIMSELF, WHO COULD CONTROVERT, EXPLAIN OR AMPLIFY
BRYSON'S REPORT OF THIS IMPORTANT CONVERSATION WAS JOHN DOE. 
CONTRADICTION OR AMPLIFICATION MIGHT HAVE BORNE UPON PETITIONER'S
KNOWLEDGE OF THE CONTENTS OF THE PACKAGE OR MIGHT HAVE TENDED TO SHOW
AN ENTRAPMENT. 

THIS IS A CASE WHERE THE GOVERNMENT'S INFORMER WAS THE SOLE
PARTICIPANT, OTHER THAN THE ACCUSED, IN THE TRANSACTION CHARGED.  THE
INFORMER WAS THE ONLY WITNESS IN A POSITION TO AMPLIFY OR CONTRADICT
THE TESTIMONY OF GOVERNMENT WITNESSES.  MOREOVER, A GOVERNMENT WITNESS
TESTIFIED THAT DOE DENIED KNOWING PETITIONER OR EVER HAVING SEEN HIM
BEFORE.  WE CONCLUDE THAT, UNDER THESE CIRCUMSTANCES, THE TRIAL COURT
COMMITTED PREJUDICIAL ERROR IN PERMITTING THE GOVERNMENT TO WITHHOLD
THE IDENTITY OF ITS UNDERCOVER EMPLOYEE IN THE FACE OF REPEATED DEMANDS
BY THE ACCUSED FOR HIS DISCLOSURE.  (FN15)    PETITIONER ALSO PRESENTS
A CLAIM OF ERROR ARISING OUT OF A CONTROVERSY OVER THE CORRECTNESS OF
AN ENTRY, MADE ON THE ENVELOPE CONTAINING THE HEROIN, TO THE EFFECT
THAT THE HEROIN HAD BEEN FOUND BY BRYSON.  THE UNDISPUTED TESTIMONY OF
THE OFFICERS WAS THAT THE HEROIN HAD BEEN FOUND BY DURHAM AND HANDED BY
HIM TO BRYSON WHO, IN TURN, HANDED IT TO FIELDS WHO MADE THE ERRONEOUS
ENTRY.  ON THE BASIS OF THIS DISCREPANCY, PETITIONER SOUGHT TO OBTAIN
DURHAM'S WRITTEN REPORT TO THE FEDERAL NARCOTICS BUREAU CONCERNING THE
CASE.  ALTHOUGH THIS DISCREPANCY DEALT WITH THE RELATIVELY MINOR MATTER
OF WHO HAD FIRST FOUND THE PACKAGE, IT ALSO REFLECTED UPON THE
CREDIBILITY OF DURHAM AND FIELDS, TWO OF THE GOVERNMENT'S PRINCIPAL
WITNESSES.  HOWEVER, IN VIEW OF THE DECISION WE HAVE REACHED ON OTHER
GROUNDS, WE DEEM IT UNNECESSARY TO DETERMINE WHETHER THE DENIAL OF THIS
REQUEST, EVEN IF ERRONEOUS, WAS PREJUDICIAL TO PETITIONER. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  "(C) WHOEVER FRAUDULENTLY OR KNOWINGLY IMPORTS OR BRINGS ANY
NARCOTIC DRUG INTO THE UNITED STATES OR ANY TERRITORY UNDER ITS CONTROL
OR JURISDICTION, CONTRARY TO LAW, OR RECEIVES, CONCEALS, BUYS, SELLS,
OR IN ANY MANNER FACILITATES THE TRANSPORTATION, CONCEALMENT, OR SALE
OF ANY SUCH NARCOTIC DRUG AFTER BEING IMPORTED OR BROUGHT IN, KNOWING
THE SAME TO HAVE BEEN IMPORTED CONTRARY TO LAW, OR CONSPIRES TO COMMIT
ANY OF SUCH ACTS IN VIOLATION OF THE LAWS OF THE UNITED STATES, SHALL
BE FINED NOT MORE THAN $2,000 AND IMPRISONED NOT LESS THAN TWO OR MORE
THAN FIVE YEARS  ...  . 

"WHENEVER ON TRIAL FOR A VIOLATION OF THIS SUBDIVISION (SEC. 2(C))
THE DEFENDANT IS SHOWN TO HAVE OR TO HAVE HAD POSSESSION OF THE
NARCOTIC DRUG, SUCH POSSESSION SHALL BE DEEMED SUFFICIENT EVIDENCE TO
AUTHORIZE CONVICTION UNLESS THE DEFENDANT EXPLAINS THE POSSESSION TO
THE SATISFACTION OF THE JURY."  65 STAT. 767, 768, 21 U.S.C. SEC. 174. 

FN2  THE JUDGMENT OF CONVICTION PROVIDED FOR A $5 FINE ON "EACH"
COUNT, TO "RUN CONCURRENTLY."  THE GOVERNMENT STATED, DURING THE
ARGUMENT BEFORE THIS COURT, THAT THIS JUDGMENT HAS BEEN CONSTRUED
ADMINISTRATIVELY AS IMPOSING ONLY ONE $5 FINE.  WE THEREFORE ASSUME,
WITHOUT SO DECIDING, THAT THE JUDGMENT IMPOSED A FULLY CONCURRENT
SENTENCE. 

FN3  DURHAM, BRYSON AND SIMS, AMONG THEM, TESTIFIED THAT DOE WAS AN
"INFORMER" AND A "SPECIAL EMPLOYEE" WHO HAD BEEN KNOWN TO THE FEDERAL
AGENTS FOR SEVERAL YEARS. 

FN4  POLICE OFFICER BRYSON TESTIFIED AS FOLLOWS: 

"Q.  WELL, DID HE (JOHN DOE) SAY ANYTHING WITH REFERENCE TO AN
ACQUAINTANCESHIP OR ANY PRIOR ASSOCIATION WITH THIS MAN (PETITIONER) OR
ANY TRANSACTION WITH THIS MAN? 

     *         *         *         *         * 

"A.  WELL, HE SAID HE DIDN'T KNOW THE DEFENDANT HERE.  HE SAID HE HAD
NEVER SEEN HIM BEFORE." 

FN5  THE FOLLOWING COLLOQUY OCCURRED BETWEEN CHESTER E. EMANUELSON,
THE GOVERNMENT COUNSEL, AND MAURICE J. WALSH, PETITIONER'S COUNSEL: 

"MR. EMANUELSON:  ... . 

     *         *         *         *         * 

"THE REASON WE DO NOT WANT TO REVEAL HIS (DOE'S) NAME IS THAT THERE
ARE OTHER MATTERS THAT ARE PENDING, I HAVE BEEN TOLD - I KNOW OF ONE
MYSELF - AND THE CASES HOLD THAT WE DO NOT HAVE TO REVEAL THE
INFORMER'S NAME.  NOW, IF THERE IS SOME REASON: 

"MR. WALSH:  WELL, IS THERE ANY ACTIVITY OF THE INFORMER WHICH WILL
BE CURTAILED BY REASON OF THE DISCLOSURE OF HIS NAME?  WOULD YOU ANSWER
THAT? 

"MR. EMANUELSON:  ANY ACTIVITIES? 

"MR. WALSH:  YES. 

"MR. EMANUELSON:  FROM THIS POINT FORWARD, NO. 

"MR. WALSH:  IS THERE ANY OCCASION UPON WHICH HE WILL BE CALLED TO
TESTIFY? 

"MR. EMANUELSON:  NO." 

IN A LATER COLLOQUY MR. EMANUELSON STATED:  "AS I UNDERSTAND IT, THE
REASON HIS (DOE'S) NAME HAS NOT BEEN DISCLOSED IS BECAUSE HE IS ACTING
AS A GOVERNMENT EMPLOYEE IN OTHER CASES AND IT WOULD HELP OTHER PERSONS
IN OTHER MATTERS THAT ARE PENDING." 

FN6  SINCE THE CONCURRENT SENTENCE DID NOT EXCEED THAT WHICH LAWFULLY
MIGHT BE IMPOSED UNDER A SINGLE COUNT, THE JUDGMENT MAY BE AFFIRMED IF
THE CONVICTION ON EITHER COUNT IS VALID.  PINKERTON V. UNITED STATES,
328 U.S. 640, 641-642, N. 1; HIRABAYASHI V. UNITED STATES, 320 U.S. 81,
85; ABRAMS V. UNITED STATES, 250 U.S. 616, 619; CLAASSEN V. UNITED
STATES, 142 U.S. 140, 146-147. 

FN7  FOLTZ V. MOORE MCCORMACK LINES, 189 F.2D 537, 539-540; VIII
WIGMORE, EVIDENCE (3D ED. 1940), SEC. 2374(1); A.L.I., MODEL CODE OF
EVIDENCE (1942), RULE 230.  BUT CF.  IN RE QUARLES AND BUTLER, 158 U.S.
532; VOGEL V. GRUAZ, 110 U.S. 311, 316. 

FN8  SORRENTINO V. UNITED STATES, 163 F.2D 627, 629; PIHL V. MORRIS,
319 MASS. 577, 578-580, 66 N.E.2D 804, 805-806; COMMONWEALTH V.
CONGDON, 265 MASS. 166, 174-175, 165 N.E.  467, 470; REGINA V. CANDY,
CITED 15 M.&W. 175; VIII WIGMORE, EVIDENCE (3D ED. 1940), SEC.
2374(2). 

THE RECORD CONTAINS SEVERAL INTIMATIONS THAT THE IDENTITY OF JOHN DOE
WAS KNOWN TO PETITIONER AND THAT JOHN DOE DIED PRIOR TO THE TRIAL.  IN
EITHER SITUATION, WHATEVER PRIVILEGE THE GOVERNMENT MIGHT HAVE HAD
WOULD HAVE CEASED TO EXIST, SINCE THE PURPOSE OF THE PRIVILEGE IS TO
MAINTAIN THE GOVERNMENT'S CHANNELS OF COMMUNICATION BY SHIELDING THE
IDENTITY OF AN INFORMER FROM THOSE WHO WOULD HAVE CAUSE TO RESENT HIS
CONDUCT.  THE GOVERNMENT SUGGESTS THAT IF PETITIONER KNEW JOHN DOE'S
IDENTITY, THE COURT'S FAILURE TO REQUIRE DISCLOSURE WOULD NOT BE
PREJUDICIAL EVEN IF ERRONEOUS.  SEE SORRENTINO V. UNITED STATES, 163
F.2D 627.  HOWEVER, ANY INDICATIONS THAT PETITIONER, AT THE TIME OF THE
TRIAL, WAS AWARE OF JOHN DOE'S IDENTITY ARE CONTRADICTED BY THE
TESTIMONY OF OFFICER BRYSON THAT JOHN DOE AT POLICE HEADQUARTERS DENIED
KNOWING, OR EVER HAVING SEEN, PETITIONER.  THE TRIAL COURT MADE NO
FACTUAL FINDING THAT PETITIONER KNEW DOE'S IDENTITY.  ON THIS RECORD WE
CANNOT ASSUME THAT JOHN DOE WAS KNOWN TO PETITIONER, AND, IF ALIVE,
AVAILABLE TO HIM AS A WITNESS.  NOR CAN WE CONCLUDE THAT JOHN DOE DIED
BEFORE THE TRIAL. 

FN9  SEE, E.G., SCHER V. UNITED STATES, 305 U.S. 251; WILSON V.
UNITED STATES, 59 F.2D 390; CENTOAMORE V. NEBRASKA, 105 NEB. 452, 181
N.W. 182.  EARLY DECISIONS ESTABLISHED THAT THE SCOPE OF THE PRIVILEGE
WAS IN THE DISCRETION OF THE TRIAL JUDGE.  DISCLOSURE WAS COMPELLED
WHEN HE FOUND IT "MATERIAL TO THE ENDS OF JUSTICE  ...  ."  REGINA V.
RICHARDSON, 3 F.&F. 693, 694 (1863).  SEE ALSO, MARKS V. BEYFUS, L.R.
25 Q.B.D. 494, 498 (1890).  IN THE SCHER CASE, SUPRA, AT 254, THIS
COURT SAID THAT "PUBLIC POLICY FORBIDS DISCLOSURE OF AN INFORMER'S
IDENTITY UNLESS ESSENTIAL TO THE DEFENSE, AS, FOR EXAMPLE, WHERE THIS
TURNS UPON AN OFFICER'S GOOD FAITH." 

FN10  SEE UNITED STATES V. COPLON, 185 F.2D 629, 638; UNITED STATES
V. ANDOLSCHEK, 142 F.2D 503, 506. 

FN11  E.G., SCHER V. UNITED STATES, SUPRA; UNITED STATES V. LI FAT
TONG, 152 F.2D 650; WILSON V. UNITED STATES, SUPRA; UNITED STATES V.
KEOWN, 19 F. SUPP. 639. 

FN12 IN THE PORTOMENE CASE, SUPRA, THE ACCUSED WAS CHARGED WITH TWO
SALES OF NARCOTICS TO AN INFORMER.  THE ACCUSED TOOK THE STAND, DENIED
SELLING NARCOTICS, AND TESTIFIED THAT THE PERSON HE BELIEVED TO BE THE
INFORMER HAD A GRUDGE AGAINST HIM.  THE FIFTH CIRCUIT HELD THAT
DISCLOSURE WAS ESSENTIAL TO THE DEFENSE. 

IN THE CONFORTI CASE, SUPRA, THE ACCUSED WAS CHARGED WITH POSSESSION
OF COUNTERFEIT NOTES.  AGENTS OVERHEARD THE INFORMER MAKE ARRANGEMENTS
WITH THE ACCUSED, SAW THE INFORMER MEET THE ACCUSED AND A PACKAGE
TRANSFERRED, AND THEN RECEIVED FROM THE INFORMER A PACKAGE CONTAINING
COUNTERFEIT MONEY.  THE SEVENTH CIRCUIT STATED THAT THE ACCUSED WOULD
HAVE BEEN ENTITLED TO DISCLOSURE OF THE INFORMER'S IDENTITY IF A PROPER
DEMAND HAD BEEN MADE AT THE TRIAL. 

IN THE SORRENTINO CASE, SUPRA, THE ACCUSED WAS CHARGED WITH BOTH SALE
AND POSSESSION OF NARCOTICS.   GOVERNMENT AGENTS SAW THE ACCUSED GO
INTO A HOUSE WITH THE INFORMER AFTER ARRANGEMENTS FOR A SALE HAD BEEN
OVERHEARD, AND THE INFORMER LATER TURNED OVER NARCOTICS TO THE AGENTS. 
THE NINTH CIRCUIT STATED THAT THE ACCUSED WAS ENTITLED TO DISCLOSURE
UNDER THESE CIRCUMSTANCES, BUT THE CONVICTION WAS AFFIRMED ON THE
GROUND THAT THE RECORD DEMONSTRATED THAT THE ACCUSED KNEW THE IDENTITY
OF THE INFORMER. 

SEE ALSO, CROSBY V. GEORGIA, 90 GA. APP. 63, 82 S.E.2D 38. 

FN13  SEE N. 1, SUPRA, WHERE THE MATERIAL PART OF THE STATUTORY
PROVISION IS QUOTED IN FULL. 

FN14  CASEY V. UNITED STATES, 276 U.S. 413, 418; UNITED STATES V.
CHIARELLI, 192 F.2D 528, 531; STOPPELLI V. UNITED STATES, 183 F.2D 391;
LANDSBOROUGH V. UNITED STATES, 168 F.2D 486. 

PETITIONER CONTENDS THAT THE GOVERNMENT IN ALL CASES MUST MAKE A
FURTHER AFFIRMATIVE SHOWING THAT THE ACCUSED KNEW THAT HE POSSESSED
NARCOTICS.  HE ARGUES THAT ITS FAILURE TO DO SO HERE ENTITLES HIM TO AN
ACQUITTAL.  THAT CONTENTION, HOWEVER, HAS BEEN DECIDED AGAINST
PETITIONER IN THE CASES CITED ABOVE. 

FN15  THUS FAR WE HAVE DEALT LARGELY WITH THE TRIAL COURT'S REFUSAL,
AT THE TRIAL, TO REQUIRE DISCLOSURE OF THE INFORMER'S IDENTITY.  IN
VIEW OF THE GOVERNMENT'S EXCLUSIVE RELIANCE HERE UPON COUNT 2, WE HAVE
CONSIDERED THIS QUESTION ONLY WITH RESPECT TO THAT COUNT.  HOWEVER, WE
THINK THAT THE COURT ERRED ALSO IN DENYING, PRIOR TO THE TRIAL,
PETITIONER'S MOTION FOR A BILL OF PARTICULARS, INSOFAR AS IT REQUESTED
JOHN DOE'S IDENTITY AND ADDRESS.  SINCE COUNT 1 WAS THEN BEFORE THE
COURT AND EXPRESSLY CHARGED PETITIONER WITH A SALE OF HEROIN TO JOHN
DOE, IT WAS EVIDENT FROM THE FACE OF THE INDICTMENT THAT DOE WAS A
PARTICIPANT IN AND A MATERIAL WITNESS TO THAT SALE.  ACCORDINGLY, WHEN
HIS NAME AND ADDRESS WERE THUS REQUESTED, THE GOVERNMENT SHOULD HAVE
BEEN REQUIRED TO SUPPLY THAT INFORMATION OR SUFFER DISMISSAL OF THAT
COUNT. 

MR. JUSTICE BLACK AND MR. JUSTICE WHITTAKER TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE CLARK, DISSENTING. 

IT IS WITH REGRET THAT I DISSENT FROM THE OPINION OF THE COURT, NOT
BECAUSE I AM ALONE, BUT FOR THE REASON THAT I HAVE BEEN UNABLE TO
CONVINCE THE MAJORITY OF THE UNSOUNDNESS OF ITS CONCLUSION ON THE FACTS
HERE AND THE DESTRUCTIVE EFFECT WHICH THAT CONCLUSION WILL HAVE ON THE
ENFORCEMENT OF THE NARCOTIC LAWS.  THE SHORT OF IT IS THAT THE
CONVICTION OF A SELF-CONFESSED DOPE PEDDLER IS REVERSED BECAUSE THE
GOVERNMENT REFUSED TO FURNISH THE NAME OF ITS INFORMANT WHOSE IDENTITY
THE UNDISPUTED EVIDENCE INDICATED WAS WELL KNOWN TO THE PEDDLER.  YET
THE COURT REVERSES ON THE GROUND OF "UNFAIRNESS" BECAUSE OF THE
GOVERNMENT'S FAILURE TO PERFORM THIS FRUITLESS GESTURE.  IN MY VIEW
THIS DOES VIOLENCE TO THE COMMON UNDERSTANDING OF WHAT IS FAIR AND
JUST. 

FIRST, IT IS WELL TO REMEMBER THAT THE ILLEGAL TRAFFIC IN NARCOTIC
DRUGS POSES A MOST SERIOUS SOCIAL PROBLEM.  ONE NEED ONLY READ THE
NEWSPAPERS TO GAUGE ITS ENORMITY.  NO CRIME LEADS MORE DIRECTLY TO THE
COMMISSION OF OTHER OFFENSES.  MOREOVER, IT IS A MOST DIFFICULT CRIME
TO DETECT AND PROVE.  BECAUSE DRUGS COME IN SMALL PILLS OR POWDER AND
ARE READILY PACKAGED IN CAPSULES OR GLASSINE CONTAINERS, THEY MAY BE
EASILY CONCEALED.  THEY CAN BE CARRIED ON THE PERSON OR EVEN IN THE
BODY CREVASSES WHERE DETECTION IS ALMOST IMPOSSIBLE.  ENFORCEMENT IS,
THEREFORE, MOST DIFFICULT WITHOUT THE USE OF "STOOL PIGEONS" OR
INFORMANTS. 

THEIR USE HAS LONG HAD THE APPROVAL OF THE COURTS.  TO GIVE THEM
PROTECTION GOVERNMENTS HAVE ALWAYS FOLLOWED A POLICY OF NONDISCLOSURE
OF THEIR IDENTITIES.  EXPERIENCE TEACHES THAT ONCE THIS POLICY IS
RELAXED - EVEN THOUGH THE INFORMANT BE DEAD - ITS EFFECTIVENESS IS
DESTROYED.  ONCE AN INFORMANT IS KNOWN THE DRUG TRAFFICKERS ARE QUICK
TO RETALIATE.  DEAD MEN TELL NO TALES.  THE OLD PENALTY OF TONGUE
REMOVAL, ONCE VISITED UPON THE INFORMER LARUNDA, HAS BEEN FOUND
OBSOLETE. 

OF COURSE WHERE ENFORCEMENT OF A NONDISCLOSURE POLICY DEPRIVES AN
ACCUSED OF A FAIR TRIAL IT MUST EITHER BE RELAXED OR THE PROSECUTION
MUST BE FOREGONE.  THE GOVERNMENT IS FULLY AWARE OF THIS DILEMMA AND
SOLVES IT EVERY DAY BY FOREGOING PROSECUTIONS IN MANY CASES WHERE
EVIDENCE ESSENTIAL TO THE DEFENSE WOULD REQUIRE DISCLOSURE.  BUT THIS
IS NOT SUCH A CASE. 

IN NOTE 8 OF THE MAJORITY OPINION, ANTE, P. 60, THE COURT MAKES MUCH
OF TESTIMONY OF A POLICE OFFICER THAT THE INFORMANT, WHILE AT THE
POLICE STATION, "DENIED KNOWING, OR EVER HAVING SEEN, PETITIONER."  I
SUBMIT THAT THIS TESTIMONY IS TAKEN OUT OF ITS PROPER SETTING.  THE
INFORMANT WAS IN CUSTODY WHEN PETITIONER WAS ARRESTED AND THE TWO WERE
TAKEN TO THE POLICE STATION WHERE EACH WAS KEPT IN CUSTODY OVERNIGHT. 
THERE, WHILE IN CUSTODY, THEY WERE INTERROGATED TOGETHER ABOUT THE
OCCURRENCES LEADING UP TO THE ARRESTS.  THE FEDERAL OFFICER PRESENT AT
THE TIME WAS QUESTIONED AT THE TRIAL IN REGARD TO INFORMANT'S ANSWERS
AT THE STATION: 

"Q.  AS A MATTER OF FACT, THE INFORMANT SAID HE DID NOT HAVE A
TRANSACTION WITH HIM, DIDN'T HE, IN ROVIARO'S PRESENCE? 

"A. DO YOU WANT THE ENTIRE CONVERSATION? 

"Q.  ISN'T WHAT I ASKED YOU A FACT? 

"A.  NO, SIR.  HE DIDN'T DENY IT. 

"Q.  DIDN'T THE INFORMANT SAY HE DIDN'T EVEN KNOW HIM? 

"A.  YES, SIR; AT FIRST HE DID."  (FN1) 

IN PROPER CONTEXT THIS MERELY SHOWS THAT THE INFORMANT WAS CARRYING
OUT A PRETENSE THAT HE TOO WAS ARRESTED, WAS INVOLVED, AND WAS NOT
"SQUEALING."  IN FACT, OFFICER BRYSON ATTEMPTED IN HIS TESTIMONY TO
EXPLAIN THE "PURPOSE" OF THE INFORMANT IN SO ANSWERING BUT WAS
PREVENTED BY PETITIONER'S COUNSEL.    MOREOVER, THE UNCONTRADICTED
EVIDENCE IS THAT THE PETITIONER KNEW THE INFORMANT AND HAD ASSOCIATED
WITH HIM FOR SOME TIME.  TWO OFFICERS TESTIFIED THAT THEY HAD SEEN
PETITIONER ON JUNE 22, 1954, ENTER THE INFORMANT'S CAR ON MICHIGAN
AVENUE IN CHICAGO.  ANOTHER SAW INFORMANT AND PETITIONER ENTER THE
LATTER'S HOME TOGETHER ON JUNE 28, ONLY SIX WEEKS PRIOR TO THE EVENTS
IN QUESTION HERE.  FURTHER TESTIMONY SHOWS THAT THE INFORMANT WAS
INDEBTED TO THE PETITIONER, THAT THE PETITIONER HAD TELEPHONED SEVERAL
TIMES TO INFORMANT'S HOME AND "AT THE PLACE," THAT PETITIONER WAS GOING
TO CALL AGAIN IN A COUPLE OF DAYS AFTER THE DATE OF HIS ARREST, AND
THAT HE ENTERED INFORMANT'S CAR ON THE NIGHT OF THE ARREST AND DROVE
AROUND WITH HIM FOR SEVERAL MILES.  THE COURT ASSERTS THAT THE
CONVERSATION BETWEEN THE INFORMANT AND PETITIONER WHILE ON THIS RIDE
"EMPHASIZES THE UNFAIRNESS OF THE NONDISCLOSURE IN THIS CASE."  BUT IF
WE LIMIT THE OFFICER'S TESTIMONY TO THE STATEMENTS OF PETITIONER ALONE,
THE TESTIMONY WOULD PROVE THE INTIMACY OF THE ACQUAINTANCE BETWEEN
PETITIONER AND THE INFORMANT.  IT WOULD SHOW THAT PETITIONER DIRECTED
THE INFORMANT TO THE CACHE AND ADMONISHED HIM TO TURN OUT THE CAR
LIGHTS BECAUSE OF A "TAIL"; THAT PETITIONER KNEW HOW TO REACH INFORMANT
BY TELEPHONE AND HAD TRIED TO PHONE HIM; THAT HE HAD BROUGHT HIM "THREE
PIECES THIS TIME," INDICATING PRIOR SALES; THAT INFORMANT WAS INDEBTED
TO HIM; THAT WHEN THEY APPROACHED THE CACHE HE DIRECTED THE INFORMANT
TO STOP THE CAR; AND THAT FINALLY WHEN HE RETURNED WITH THE NARCOTICS,
PETITIONER SAID "HERE IT IS, I'LL CALL YOU IN A COUPLE OF DAYS."  ALL
OF THIS TESTIMONY WAS ADMISSIBLE AGAINST PETITIONER WHETHER THE
INFORMANT WAS AVAILABLE OR NOT OR WHETHER HE WAS DEAD OR ALIVE.  IT
PROVES BEYOND QUESTION THAT THE TWO WERE CLOSELY ACQUAINTED.  FOR THE
COURT TO CONCLUDE IN THE FACE OF SUCH A RECORD THAT PETITIONER DID NOT
KNOW THE INFORMANT IS TO ME FANTASTIC. 

BUT THIS IS NOT ALL.  THE PETITIONER HAS NOT MENTIONED A SINGLE
SUBSTANTIAL GROUND ESSENTIAL TO HIS DEFENSE WHICH WOULD MAKE IT
NECESSARY FOR THE GOVERNMENT TO NAME THE INFORMER.  THE COURT MENTIONS
THAT THERE MIGHT HAVE BEEN ENTRAPMENT.  PETITIONER NOT ONLY FAILED TO
CLAIM ENTRAPMENT BUT HIS COUNSEL APPEARS TO HAVE REJECTED ANY
SUGGESTION OF IT IN OPEN COURT.  I SUBMIT THE COURT SHOULD NOT RAISE IT
FOR HIM HERE.  IT SHOULD BE NOTED THAT PETITIONER'S COUNSEL STATED IN
OPEN COURT THAT PETITIONER KNEW THE INFORMANT AND BELIEVED HE WAS
DEAD.  (FN2)  WERE THERE NECESSITY TO ESTABLISH INFORMANT'S IDENTITY
OR, IF DEAD, HIS DEATH, PETITIONER COULD EASILY HAVE DONE SO.  (FN3) 

IN TRUTH, IT APPEARS THAT PETITIONER HOPED THAT THE GOVERNMENT WOULD
NOT FURNISH THE NAME FOR, IF THE INFORMANT WAS DEAD AS HE BELIEVED,
PETITIONER'S GROUND WAS CUT FROM UNDER HIM.  IF THE INFORMANT WAS
LIVING HE KNEW THAT EVEN THOUGH HIS TESTIMONY WAS FAVORABLE IT WOULD
NOT BE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE STATUTE.  IN FACT,
A CASUAL READING OF THE RECORD PAINTS A PICTURE OF ONE VAINLY ENGAGING
IN TRIAL TACTICS RATHER THAN SEARCHING FOR REAL DEFENSES - SHADOWBOXING
WITH THE PROSECUTION IN A BASELESS ATTEMPT TO GET A NAME THAT HE
ALREADY HAD BUT IN REALITY HOPING TO GET A REVERSIBLE ERROR THAT WAS
NOWHERE ELSE IN SIGHT.  WE SHOULD NOT ENCOURAGE SUCH TACTICS. 

IN LIGHT OF THESE FACTS THE RULE ANNOUNCED BY THE COURT IN NOTE 8 OF
THE OPINION SHOULD BE APPLIED, I.E., THAT THE TRIAL "COURT'S FAILURE TO
REQUIRE DISCLOSURE WOULD NOT BE PREJUDICIAL EVEN IF ERRONEOUS.  SEE
SORRENTINO V. UNITED STATES, 163 F.2D 627." 

THE POSITION OF THE COURT IS THAT SINCE THE TRIAL JUDGE MADE NO
FINDING THAT PETITIONER KNEW THE INFORMANT, THE GOVERNMENT CANNOT
SUCCESSFULLY ASSERT HARMLESS ERROR.  IT IS TRUE THAT THE COURT MADE NO
FINDING OTHER THAN THAT OF GUILT.  BUT THIS GENERAL FINDING IS ENTITLED
TO THE SUPPORT OF EVERY REASONABLE PRESUMPTION.  IT WOULD BE REASONABLE
TO ASSUME THAT THE TRIAL JUDGE DECLINED TO ORDER THE DISCLOSURE BECAUSE
PETITIONER'S COUNSEL HAD SAID IN OPEN COURT THAT HE KNEW THE IDENTITY
OF THE INFORMANT.  FURTHERMORE, PETITIONER HAS MADE NO SHOWING OF HOW
HE WAS HARMED BY THE NONDISCLOSURE - INDEED HE INTRODUCED NO EVIDENCE
OF ANYTHING. 

I COME NOW TO THE NECESSARY PROOF REQUIRED FOR A FINDING OF GUILT
UNDER COUNT 2.  ALL THAT IS NECESSARY HERE IS PROOF OF POSSESSION OF
UNSTAMPED NARCOTICS, SUCH AS HEROIN.  THE DIRECT, UNCONTROVERTED
EVIDENCE OF POSSESSION, AS WELL AS TRANSPORTATION, IS IN THE RECORD. 
TWO OFFICERS, ONE A LOCAL POLICEMAN AND THE OTHER A REGULAR FEDERAL
NARCOTICS AGENT, SAW PETITIONER WHEN HE HAD IN HIS HAND A PACKAGE
CONTAINING HEROIN.  THE PACKAGE WAS UNSTAMPED.  A THIRD OFFICER SAW
PETITIONER LEAVE THE SCENE OF HIS CRIME, GET INTO HIS CAR, AND RIDE
AWAY.  THE IDENTIFICATION BY EACH OF THE THREE IS POSITIVE AND STANDS
UNCONTRADICTED.  UNDER THE NARCOTIC DRUGS ACT, 65 STAT. 767, 21 U.S.C.
SEC. 174, THIS ALONE IS PRIMA FACIE EVIDENCE OF GUILT.  PETITIONER DID
NOT REBUT IT.  IN THIS CONNECTION IT IS WELL TO POINT OUT PETITIONER'S
STATEMENT SOON AFTER HIS ARREST.  THE OFFICERS ASKED HIM:  "ARE YOU
GOING TO TAKE THIS RAP BY YOURSELF OR ARE YOU GOING TO NAME YOUR
CONNECTION?"  PETITIONER REPLIED THAT THEY WERE WASTING THEIR TIME -
"THERE'S NO USE ASKING ME ABOUT ANYBODY ELSE ...  .  I DON'T WANT TO
GET ANYBODY ELSE IN TROUBLE.  YOU GOT ME.  I'VE STOOD UP TWICE BEFORE
AND I CAN STAND UP AGAIN.  BESIDES THAT, YOU'VE GOT TO CONVICT ME
ANYHOW."  IN VIEW OF THIS, I SUBMIT THAT THERE IS NO QUESTION OF GUILT
INVOLVED HERE. 

FEELING AS I DO THAT THE OPINION OF THE COURT SERIOUSLY JEOPARDIZES
THE PRIVILEGE OF THE GOVERNMENT IN CASES INVOLVING INFORMERS, THAT
THEIR USE IN NARCOTIC CASES IS AN ABSOLUTE NECESSITY IN THE PROPER
ADMINISTRATION OF THE NARCOTIC LAWS, AND THAT THE DISCLOSURE REQUIRED
HERE TODAY IS NOT ONLY UNESSENTIAL TO THE PETITIONER'S DEFENSE BUT ON
THE OTHER HAND UNDERMINES A LONG-STANDING POLICY NECESSARY TO THE
SUCCESSFUL ENFORCEMENT OF THE NARCOTIC LAWS, I RESPECTFULLY DISSENT. 

FN1  ON PETITIONER'S OBJECTION THIS TESTIMONY WAS SUBSEQUENTLY
STRICKEN.  HOWEVER, POLICE OFFICER BRYSON DURING CROSS-EXAMINATION
PROVIDED SUBSTANTIALLY THIS SAME TESTIMONY AND THE INADVERTENCE OF THE
GOVERNMENT IN FAILING TO OBJECT PERMITTED IT TO STAND. 

FN2  THE RECORD DISCLOSES THE FOLLOWING COLLOQUY BETWEEN PETITIONER'S
COUNSEL, MR. WALSH, AND THE COURT: 

"MR. WALSH:  YOUR HONOR, THIS IS THE POINT, ACTUALLY:  HE HAS
TESTIFIED THAT JOHN DOE (THE INFORMANT) WAS PRESENT AT 11TH AND STATE
STREET WITH THE DEFENDANT.  WE KNOW THAT PERSON, WE KNOW THAT PERSON. 
THAT PERSON IS DEAD, AS I UNDERSTAND IT. 

     *         *         *         *         * 

"BY MR. WALSH:  (CROSS-EXAMINATION OF AGENT DURHAM). 

"Q.  I WILL ASK HIM IF THE PERSON AS A MATTER OF FACT WAS NOT TEBBIL
HOLMES? 

     *         *         *         *         * 

"Q.  ISN'T THE INFORMER'S NAME, OR THE PERSON YOU CONTEND IS AN
INFORMER, WHO HAS BEEN MENTIONED BY THE PROSECUTOR AS AN INFORMER -
ISN'T HIS NAME TEBBIL HOLMES?" 

FN3  A DEATH CERTIFICATE, STATE FILE NO. 1665, DIST. NO. 16.10, ON
FILE AT THE BUREAU OF VITAL STATISTICS, COOK COUNTY CLERK'S OFFICE, 130
N. WELLS ST., CHICAGO, ILLINOIS, INDICATES THAT A TEVELL HOLMES, SR.,
DIED IN CHICAGO ON JANUARY 17, 1955. 
..END :









UNITED STATES, HINTOPOULOS V. SHAUGHNESSY 353 U.S. 72 


NO. 205.  ARGUED MARCH 4, 1957 - DECIDED MARCH 25, 1957 - 233 F.2D 705,
AFFIRMED. 


PETITIONERS, HUSBAND AND WIFE, ENTERED THE UNITED STATES IN 1951 AS
ALIEN SEAMEN, AND REMAINED UNLAWFULLY AFTER EXPIRATION OF THEIR LIMITED
LAWFUL STAY.  IN NOVEMBER 1951 A CHILD WAS BORN TO THEM - AN AMERICAN
CITIZEN BY BIRTH.  IN JANUARY 1952 PETITIONERS APPLIED FOR SUSPENSION
OF DEPORTATION UNDER SEC. 19(C) OF THE IMMIGRATION ACT OF 1917, WHICH
CONDITIONALLY AUTHORIZES SUSPENSION OF A DEPORTATION WHICH "WOULD
RESULT IN SERIOUS ECONOMIC DETRIMENT TO A CITIZEN  ...  WHO IS THE  ...
MINOR CHILD OF SUCH DEPORTABLE ALIEN."  THE BOARD OF IMMIGRATION
APPEALS FOUND THAT PETITIONERS WERE ELIGIBLE FOR RELIEF BUT, AS A
MATTER OF ADMINISTRATIVE DISCRETION, DENIED SUSPENSION OF DEPORTATION,
RELYING MAINLY ON THE FACT THAT PETITIONERS HAD ESTABLISHED NO ROOTS OR
TIES IN THIS COUNTRY.  HELD:  THERE WAS NO ERROR IN THE DECISION OF THE
BOARD.  PP. 73-79. 

(A)  THE BOARD APPLIED THE CORRECT LEGAL STANDARDS IN DECIDING
WHETHER PETITIONERS MET THE STATUTORY PREREQUISITES FOR SUSPENSION OF
DEPORTATION.  P. 77. 

(B)  SUSPENSION OF DEPORTATION UNDER THE STATUTE IS A MATTER OF
DISCRETION AND OF ADMINISTRATIVE GRACE, NOT MERE ELIGIBILITY;
DISCRETION MUST BE EXERCISED EVEN THOUGH STATUTORY PREREQUISITES HAVE
BEEN MET.  P. 77. 

(C)  IT WAS NOT AN ABUSE OF DISCRETION TO WITHHOLD RELIEF IN THIS
CASE, SINCE THE REASONS RELIED ON BY THE HEARING OFFICER AND THE BOARD
WERE NEITHER CAPRICIOUS NOR ARBITRARY.  P. 77. 

(D)  IT WAS NOT IMPROPER OR ARBITRARY FOR THE BOARD, IN EXERCISING
ITS DISCRETION, TO TAKE INTO ACCOUNT THE CONGRESSIONAL POLICY
UNDERLYING THE IMMIGRATION AND NATIONALITY ACT OF 1952, THOUGH THAT ACT
WAS INAPPLICABLE TO THIS CASE.  P. 78. 

(E)  THE CONCLUSION THAT THE BOARD IN EXERCISING ITS DISCRETION MAY
TAKE INTO ACCOUNT THE CURRENT POLICIES OF CONGRESS IS FORTIFIED BY THE
FACT THAT SEC. 19(C) PROVIDES FOR CLOSE CONGRESSIONAL SUPERVISION OVER
SUSPENSIONS OF DEPORTATION.  PP. 78-79. 

UNITED STATES EX REL. HINTOPOULOS ET UX. V. SHAUGHNESSY, DISTRICT
DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS IS A HABEAS CORPUS PROCEEDING TO TEST THE VALIDITY OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS DENYING PETITIONERS' REQUEST FOR
SUSPENSION OF DEPORTATION. 

PETITIONERS ARE HUSBAND AND WIFE, BOTH ALIENS.  PRIOR TO 1951 BOTH
WORKED AS SEAMEN ON FOREIGN VESSELS.  IN JULY 1951 THE WIFE LAWFULLY
ENTERED THE UNITED STATES AS A CREW MEMBER OF A SHIP IN A UNITED STATES
PORT.  BEING PREGNANT, SHE SOUGHT MEDICAL ADVICE; SUBSEQUENTLY SHE
DECIDED IN THE INTEREST OF HER HEALTH TO STAY ASHORE.  A MONTH LATER,
ON THE NEXT OCCASION HIS SHIP ARRIVED IN THE UNITED STATES, HER HUSBAND
JOINED HER; HE ALSO FAILED TO LEAVE ON THE EXPIRATION OF HIS LIMITED
LAWFUL STAY.  (FN1)  IN NOVEMBER 1951 THEIR CHILD WAS BORN; THE CHILD
IS, OF COURSE, AN AMERICAN CITIZEN BY BIRTH.  IN JANUARY 1952
PETITIONERS VOLUNTARILY DISCLOSED THEIR ILLEGAL PRESENCE TO THE
IMMIGRATION SERVICE AND APPLIED FOR SUSPENSION OF DEPORTATION UNDER
SEC. 19(C) OF THE IMMIGRATION ACT OF 1917, WHICH PROVIDES, IN PART: 

"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
...  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  ...  ." 
(FN2) 

DEPORTATION PROCEEDINGS WERE INSTITUTED IN MAY 1952 AND A HEARING WAS
HELD.  ON THE UNDISPUTED FACTS BOTH ALIENS WERE FOUND DEPORTABLE.  AS
TO THE ISSUE OF SUSPENSION OF DEPORTATION, THE HEARING OFFICER, WHILE
FINDING PETITIONERS ELIGIBLE FOR SUCH RELIEF, DENIED THE REQUEST,
STATING AS FOLLOWS:

"BOTH RESPONDENTS HAVE APPLIED FOR SUSPENSION OF DEPORTATION ON THE
GROUND OF THE ECONOMIC DETRIMENT THAT WOULD BEFALL THEIR MINOR SON IN
THE EVENT THEY WERE DEPORTED  ...  .  BOTH DISCLAIM HAVING A CRIMINAL
RECORD ANYWHERE AND BOTH ALLEGE THAT THEY HAVE BEEN PERSONS OF GOOD
MORAL CHARACTER.  EVIDENCE OF RECORD WOULD TEND TO CORROBORATE THEIR
TESTIMONY IN THIS RESPECT.  THEIR ONLY INCOME IS FROM THE EMPLOYMENT OF
THE MALE RESPONDENT ON TWO JOBS  ...  .  THEIR JOINT ASSETS CONSIST OF
SAVINGS IN THE SUM OF ABOUT $500 AND THEIR FURNITURE AND OTHER PERSONAL
PROPERTY WHICH THEY VALUE AT $1500.  WHILE IT WOULD SEEM THAT THEIR SON
...  WOULD SUFFER ECONOMICALLY IF HIS PARENTS SHOULD BE DEPORTED, IT
IS NOT BELIEVED THAT AS A MATTER OF ADMINISTRATIVE DISCRETION THE
RESPONDENTS' APPLICATIONS FOR SUSPENSION OF DEPORTATION SHOULD BE
GRANTED.  THEY HAVE BEEN IN THE UNITED STATES FOR A PERIOD OF LESS THAN
ONE YEAR.  THEY HAVE NO RELATIVES IN THIS COUNTRY OTHER THAN EACH OTHER
AND THEIR SON.  TO GRANT BOTH THIS FORM OF RELIEF UPON THE ACCIDENT OF
BIRTH IN THE UNITED STATES OF THEIR SON WOULD BE TO DEPRIVE OTHERS, WHO
ARE PATIENTLY AWAITING VISAS UNDER THEIR ALREADY OVERSUBSCRIBED
QUOTAS.  IT IS NOTED ALSO THAT NEITHER RESPONDENT REPORTED HIS AND HER
PRESENCE IN THE UNITED STATES AT ANY TIME UNTIL JANUARY, 1952 WHEN THEY
FILED APPLICATIONS FOR SUSPENSION OF DEPORTATION JUST TWO MONTHS AFTER
THE BIRTH OF THEIR CHILD  ...  ." 

THE BOARD OF IMMIGRATION APPEALS HEARD PETITIONERS' APPEAL, AND ON
MARCH 18, 1954, UPHELD THE HEARING OFFICER'S RECOMMENDATION AND DENIED
SUSPENSION OF DEPORTATION.  THE BOARD STATED: 

"IT IS OBVIOUS THAT THE AMERICAN CITIZEN INFANT CHILD IS DEPENDENT
UPON THE ALIEN PARENTS FOR ECONOMIC SUPPORT, CARE AND MAINTENANCE. 
DOCUMENTARY AND OTHER EVIDENCE ESTABLISH GOOD MORAL CHARACTER FOR THE
REQUISITE PERIOD.  THE ALIENS HAVE NO CONNECTION WITH SUBVERSIVE
GROUPS. 

     *         *         *         *       * 

"AS STATED ABOVE, WE HAVE, IN THE INSTANT CASE, A FAMILY CONSISTING
OF TWO ALIEN PARENTS ILLEGALLY RESIDING IN THE UNITED STATES AND ONE
AMERICAN CITIZEN CHILD, AGE ABOUT TWO AND ONE-HALF YEARS.  THESE
RESPONDENTS HAVE BEEN IN THE UNITED STATES FOR A PERIOD OF LESS THAN
THREE YEARS.  BOTH ARRIVED IN THIS COUNTRY AS SEAMEN.  THEY HAVE NO
OTHER DEPENDENTS OR CLOSE FAMILY TIES HERE.  THE RECORD INDICATES THAT
THE MALE RESPONDENT MAY BE ABLE TO OBTAIN WORK AS A GREEK SEAMAN AND
EARN ABOUT $85 MONTHLY. 

"NOTWITHSTANDING THE FACT THAT  ...  THE DEPORTATION OF THESE
RESPONDENTS WOULD RESULT IN A SERIOUS ECONOMIC DETRIMENT TO AN AMERICAN
CITIZEN INFANT CHILD, THE GRANTING OR WITHHOLDING OF MAXIMUM
DISCRETIONARY RELIEF DEPENDS ON THE FACTORS AND MERITS IN EACH
INDIVIDUAL CASE, AND IS A MATTER OF ADMINISTRATIVE DISCRETION.  WE HAVE
CAREFULLY EXAMINED THE FACTS AND CIRCUMSTANCES IN THE INSTANT CASE AND
WE FIND THAT THE GRANTING OF THE MAXIMUM RELIEF IS NOT WARRANTED BY THE
RECORD IN THE CASE  ...  ." 

PETITIONERS THEREUPON MOVED FOR RECONSIDERATION.  ON MAY 5, 1954, THE
BOARD DENIED THE MOTION, STATING: 

"COUNSEL'S MOTION SETS FORTH NO MATTERS OF WHICH WE WERE UNAWARE AT
THE TIME OUR PREVIOUS DECISION WAS RENDERED.  IT IS CRYSTAL CLEAR THAT
CONGRESS INTENDED TO GREATLY RESTRICT THE GRANTING OF SUSPENSION OF
DEPORTATION BY THE CHANGE OF PHRASEOLOGY WHICH WAS USED IN SECTION
244(A) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952 AS WELL AS THE
CONGRESSIONAL COMMENT AT THE TIME THIS PROVISION WAS ENACTED.  (FN3)
WE INDICATED IN OUR PREVIOUS ORDER THAT THE DEPORTATION OF THE
RESPONDENTS WOULD RESULT IN A SERIOUS ECONOMIC DETRIMENT TO THEIR
CITIZEN MINOR CHILD, AND WE DO NOT QUESTION THAT THE RESPONDENTS HAVE
ESTABLISHED THE STATUTORY REQUIREMENTS FOR SUSPENSION OF DEPORTATION
...  . 

  *         *         *         *         * 

"UPON OUR FURTHER REVIEW OF THE CASES OF THE TWO RESPONDENTS, WE
ADHERE TO OUR PREVIOUS DECISION THAT SUSPENSION OF DEPORTATION SHOULD
BE DENIED AS A MATTER OF ADMINISTRATIVE DISCRETION  ...  ." 

TAKEN INTO CUSTODY FOR DEPORTATION, PETITIONERS INSTITUTED THE
PRESENT HABEAS CORPUS PROCEEDING, ALLEGING THAT THE BOARD ABUSED ITS
DISCRETION IN DENYING THEIR APPLICATION FOR SUSPENSION OF DEPORTATION. 
THE DISTRICT COURT DISMISSED THE WRIT, 133 F. SUPP. 433, AND THE COURT
OF APPEALS, ONE JUDGE DISSENTING, AFFIRMED, 233 F.2D 705.  WE GRANTED
CERTIORARI.  352 U.S. 819. 

WE DO NOT THINK THAT THERE WAS ERROR IN THESE PROCEEDINGS.  IT IS
CLEAR FROM THE RECORD THAT THE BOARD APPLIED THE CORRECT LEGAL
STANDARDS IN DECIDING WHETHER PETITIONERS MET THE STATUTORY
PREREQUISITES FOR SUSPENSION OF DEPORTATION.  THE BOARD FOUND THAT
PETITIONERS MET THESE STANDARDS AND WERE ELIGIBLE FOR RELIEF.  BUT THE
STATUTE DOES NOT CONTEMPLATE THAT ALL ALIENS WHO MEET THE MINIMUM LEGAL
STANDARDS WILL BE GRANTED SUSPENSION.  SUSPENSION OF DEPORTATION IS A
MATTER OF DISCRETION AND OF ADMINISTRATIVE GRACE, NOT MERE ELIGIBILITY;
DISCRETION MUST BE EXERCISED EVEN THOUGH STATUTORY PREREQUISITES HAVE
BEEN MET.  (FN4) 

NOR CAN WE SAY THAT IT WAS ABUSE OF DISCRETION TO WITHHOLD RELIEF IN
THIS CASE.  THE REASONS RELIED ON BY THE HEARING OFFICER AND THE BOARD
MAINLY THE FACT THAT PETITIONERS HAD ESTABLISHED NO ROOTS OR TIES IN
THIS COUNTRY - WERE NEITHER CAPRICIOUS NOR ARBITRARY. 

PETITIONERS URGE THAT THE BOARD APPLIED AN IMPROPER STANDARD IN
EXERCISING ITS DISCRETION WHEN, IN ITS OPINION ON REHEARING, IT TOOK
INTO ACCOUNT THE CONGRESSIONAL POLICY UNDERLYING THE IMMIGRATION AND
NATIONALITY ACT OF 1952, THE LATTER BEING CONCEDEDLY INAPPLICABLE TO
THIS CASE.  WE CANNOT AGREE WITH THIS CONTENTION.  THE SECOND OPINION
MAKES CLEAR THAT THE BOARD STILL CONSIDERED PETITIONERS ELIGIBLE FOR
SUSPENSION UNDER THE 1917 ACT (FN5) AND DENIED RELIEF SOLELY AS A
MATTER OF DISCRETION.   AND WE CANNOT SAY THAT IT WAS IMPROPER OR
ARBITRARY FOR THE BOARD TO BE INFLUENCED, IN EXERCISING THAT
DISCRETION, BY ITS VIEWS AS TO CONGRESSIONAL POLICY AS MANIFESTED BY
THE 1952 ACT.  SECTION 19(C) DOES NOT STATE WHAT STANDARDS ARE TO GUIDE
THE ATTORNEY GENERAL IN THE EXERCISE OF HIS DISCRETION.  SURELY IT IS
NOT UNREASONABLE FOR HIM TO TAKE COGNIZANCE OF PRESENT-DAY CONDITIONS
AND CONGRESSIONAL ATTITUDES, ANY MORE THAN IT WOULD BE ARBITRARY FOR A
JUDGE, IN SENTENCING A CRIMINAL, TO REFUSE TO SUSPEND SENTENCE BECAUSE
CONTEMPORARY OPINION, AS EXEMPLIFIED IN RECENT STATUTES, HAS INCREASED
IN RIGOUR AS TO THE OFFENSE INVOLVED.  THIS CONCLUSION IS FORTIFIED BY
THE FACT THAT SEC. 19(C) PROVIDES FOR CLOSE CONGRESSIONAL SUPERVISION
OVER SUSPENSIONS OF DEPORTATION.  IN EVERY CASE WHERE SUSPENSION FOR
MORE THAN SIX MONTHS IS GRANTED A REPORT MUST BE SUBMITTED TO CONGRESS,
AND IF THEREAFTER CONGRESS DOES NOT PASS A CONCURRENT RESOLUTION
APPROVING THE SUSPENSION OF DEPORTATION, THE ALIEN MUST THEN BE
DEPORTED.  (FN6)  IN OTHER WORDS, EVERY SUCH SUSPENSION MUST BE
APPROVED BY CONGRESS, AND YET PETITIONERS WOULD HAVE US HOLD THAT THE
ATTORNEY GENERAL MAY NOT TAKE INTO ACCOUNT THE CURRENT POLICIES OF
CONGRESS IN EXERCISING HIS DISCRETION.  THIS WE CANNOT DO. 

THERE BEING NO ERROR, THE JUDGMENT IS AFFIRMED.  AFFIRMED. 

FN1  UNDER CERTAIN CONDITIONS ALIEN CREWMEN ARE PERMITTED TO ENTER
THE UNITED STATES FOR PERIODS NOT EXCEEDING 29 DAYS.  SEE 8 U.S.C.
SECS. 1281-1287. 

FN2  8 U.S.C. (1946 ED., SUPP. V) SEC. 155(C). 

FN3  SECTION 244 OF THE 1952 ACT, 8 U.S.C. SEC. 1254(A), PROVIDES, IN
PERTINENT PART:  "AS HEREINAFTER PRESCRIBED IN THIS SECTION, THE
ATTORNEY GENERAL MAY, IN HIS DISCRETION, SUSPEND DEPORTATION  ...  IN
THE CASE OF AN ALIEN WHO: 

     *         *         *         *        * 

"(5)  ...  HAS BEEN PHYSICALLY PRESENT IN THE UNITED STATES FOR A
CONTINUOUS PERIOD OF NOT LESS THAN TEN YEARS  ...  AND PROVES THAT
DURING ALL OF SUCH PERIOD HE HAS BEEN AND IS A PERSON OF GOOD MORAL
CHARACTER; HAS NOT BEEN SERVED WITH A FINAL ORDER OF DEPORTATION  ...
AND IS A PERSON WHOSE DEPORTATION WOULD, IN THE OPINION OF THE ATTORNEY
GENERAL, RESULT IN EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP TO THE
ALIEN OR TO HIS SPOUSE, PARENT, OR CHILD, WHO IS A CITIZEN OR AN ALIEN
LAWFULLY ADMITTED FOR PERMANENT RESIDENCE." 

A REPORT OF THE SENATE JUDICIARY COMMITTEE ON THIS PROVISION STATES:
"THE BILL ACCORDINGLY ESTABLISHES A POLICY THAT THE ADMINISTRATIVE
REMEDY SHOULD BE AVAILABLE ONLY IN THE VERY LIMITED CATEGORY OF CASES
IN WHICH THE DEPORTATION OF THE ALIEN WOULD BE UNCONSCIONABLE. 
HARDSHIP OR EVEN UNUSUAL HARDSHIP TO THE ALIEN OR TO HIS SPOUSE,
PARENT, OR CHILD IS NOT SUFFICIENT TO JUSTIFY SUSPENSION OF DEPORTATION
...  ."  S. REP. NO. 1137, 82D CONG., 2D SESS. 25. 

FN4  UNITED STATES EX REL. KALOUDIS V. SHAUGHNESSY, 180 F.2D 489;
UNITED STATES EX REL. ADEL V. SHAUGHNESSY, 183 F.2D 371.  CF. JAY V.
BOYD, 351 U.S. 345. 

FN5  PETITIONERS WOULD CLEARLY BE INELIGIBLE FOR SUSPENSION UNDER THE
1952 ACT.  SEE N. 3, SUPRA. 

FN6  THE STATUTE PROVIDES:  "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.  THESE REPORTS SHALL BE SUBMITTED ON
THE 1ST AND 15TH DAY OF EACH CALENDAR MONTH IN WHICH CONGRESS IS IN
SESSION.  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.  IF PRIOR TO THE CLOSE OF THE SESSION OF THE
CONGRESS NEXT FOLLOWING THE SESSION AT WHICH A CASE IS REPORTED, THE
CONGRESS DOES NOT PASS SUCH A CONCURRENT RESOLUTION, THE ATTORNEY
GENERAL SHALL THEREUPON DEPORT SUCH ALIEN IN THE MANNER PROVIDED BY LAW
...  ."  8 U.S.C. (1946 ED., SUPP. V) SEC. 155(C). 

MR. JUSTICE WHITTAKER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THIS CASE, ON ITS FACE, SEEMS TO BE AN INSTANCE OF A DEPORTATION
WHICH WOULD "RESULT IN SERIOUS ECONOMIC DETRIMENT TO A CITIZEN," AS
THOSE WORDS ARE USED IN SEC. 19(C) OF THE IMMIGRATION ACT OF 1917. 

THE CITIZEN IS A FIVE-YEAR-OLD BOY WHO WAS BORN HERE AND WHO,
THEREFORE, IS ENTITLED TO ALL THE RIGHTS, PRIVILEGES, AND IMMUNITIES
WHICH THE FOURTEENTH AMENDMENT BESTOWS ON EVERY CITIZEN.  A FIVE-YEAR
OLD BOY CANNOT ENJOY THE EDUCATIONAL, SPIRITUAL, AND ECONOMIC BENEFITS
WHICH OUR SOCIETY AFFORDS UNLESS HE IS WITH HIS PARENTS.  HIS PARENTS
ARE LAW-ABIDING AND SELF-SUPPORTING.  FROM THIS RECORD IT APPEARS THAT
THEY ARE GOOD MEMBERS OF THE COMMUNITY.  THEY DO NOT SEEM TO HAVE DONE
ANYTHING ILLEGAL OR ANTISOCIAL THAT SHOULD PENALIZE THEIR AMERICAN
SON. 

IT WOULD SEEM, THEREFORE, THAT THE MAINTENANCE OF THIS YOUNG AMERICAN
CITIZEN IN A HOME IN AMERICA IS THE WAY TO EFFECTUATE THE POLICY OF THE
1917 ACT.    THE BOARD DID NOT TREAT THE CASE THAT WAY.  INSTEAD IT
IMPORTED INTO THE 1917 ACT THE STANDARD PRESCRIBED BY THE 1952 ACT,
WHICH CONCEDEDLY IS INAPPLICABLE HERE.  THAT WAS THE ERROR WHICH LED
JUDGE FRANK TO DISSENT BELOW.  233 F.2D 705, 709, 710.  I THINK JUDGE
FRANK WAS RIGHT.  PREVAILING CONGRESSIONAL POLICY ON THE APPROVAL OR
DISAPPROVAL OF SUSPENSION ORDERS IN NOWISE AFFECTS THE STANDARDS
PRESCRIBED FOR ADMINISTRATIVE ACTION UNDER THE 1917 ACT. 

THE BOARD ERRONEOUSLY FOLLOWED IRRELEVANT STANDARDS INSTEAD OF
EXERCISING ITS DISCRETION UNDER THE APPLICABLE STATUTE, VIZ. SEC. 19(C)
OF THE 1917 ACT. 
..END :





















UNITED STATES V. INTERNATIONAL UNION UNITED AUTOMOBILE, AIRCRAFT AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) 352 U.S. 567 


NO. 44.  ARGUED DECEMBER 3-4, 1956 - DECIDED MARCH 11, 1957 - 138 F.
SUPP. 53, REVERSED AND REMANDED. 


18 U.S.C. SEC. 610 PROHIBITS ANY CORPORATION OR LABOR ORGANIZATION
FROM MAKING "A CONTRIBUTION OR EXPENDITURE IN CONNECTION WITH" ANY
ELECTION FOR FEDERAL OFFICE.  AN INDICTMENT OF APPELLEE, A LABOR
ORGANIZATION, UNDER THIS SECTION CHARGED APPELLEE WITH HAVING USED
UNION DUES TO SPONSOR COMMERCIAL TELEVISION BROADCASTS DESIGNED TO
INFLUENCE THE ELECTORATE TO SELECT CERTAIN CANDIDATES FOR CONGRESS IN
CONNECTION WITH THE 1954 ELECTIONS.  THE DISTRICT COURT DISMISSED THE
INDICTMENT AS NOT ALLEGING A STATUTORY OFFENSE.  ON APPEAL TO THIS
COURT UNDER THE CRIMINAL APPEALS ACT, HELD:  THE JUDGMENT OF DISMISSAL
IS REVERSED.  PP. 568-593. 

(A)  ON REVIEW UNDER THE CRIMINAL APPEALS ACT OF A DISTRICT COURT
JUDGMENT DISMISSING AN INDICTMENT ON THE BASIS OF STATUTORY
INTERPRETATION, THIS COURT MUST TAKE THE INDICTMENT AS IT WAS CONSTRUED
BY THE DISTRICT JUDGE.  P. 584. 

(B)  IT WAS TO EMBRACE PRECISELY THE KIND OF INDIRECT CONTRIBUTIONS
ALLEGED IN THE INDICTMENT THAT CONGRESS AMENDED THE SECTION TO
PROSCRIBE "EXPENDITURES."  P. 585. 

(C)  THE SENATE AND HOUSE COMMITTEE REPORTS AND THE SENATE DEBATE
SUPPORT THE CONCLUSION THAT THE SECTION WAS UNDERSTOOD TO PROSCRIBE THE
EXPENDITURE OF UNION DUES TO PAY FOR COMMERCIAL BROADCASTS THAT ARE
DESIGNED TO URGE THE PUBLIC TO ELECT A CERTAIN CANDIDATE OR PARTY.  PP.
585-587. 

(D)  UNITED STATES V. C.I.O., 335 U.S. 106, DISTINGUISHED.  PP. 588
589. 

(E)  IN THE CIRCUMSTANCES OF THIS CASE, THE COURT DOES NOT PASS UPON
THE CONSTITUTIONAL ISSUES.  PP. 589-593. 

UNITED STATES V. INTERNATIONAL UNION UNITED AUTOMOBILE, AIRCRAFT AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO). 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE ISSUES TENDERED IN THIS CASE ARE THE CONSTRUCTION AND,
ULTIMATELY, THE CONSTITUTIONALITY OF 18 U.S.C. SEC. 610, AN ACT OF
CONGRESS THAT PROHIBITS CORPORATIONS AND LABOR ORGANIZATIONS FROM
MAKING "A CONTRIBUTION OR EXPENDITURE IN CONNECTION WITH" ANY ELECTION
FOR FEDERAL OFFICE.  THIS IS A DIRECT APPEAL BY THE GOVERNMENT FROM A
JUDGMENT OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
DISMISSING A FOUR-COUNT INDICTMENT THAT CHARGED APPELLEE, A LABOR
ORGANIZATION, WITH HAVING MADE EXPENDITURES IN VIOLATION OF THAT LAW. 
APPELLEE HAD MOVED TO DISMISS THE INDICTMENT ON THE GROUNDS (1) THAT IT
FAILED TO STATE AN OFFENSE UNDER THE STATUTE AND (2) THAT THE
PROVISIONS OF THE STATUTE "ON THEIR FACE AND AS CONSTRUED AND APPLIED"
ARE UNCONSTITUTIONAL.  THE DISTRICT JUDGE HELD THAT THE INDICTMENT DID
NOT ALLEGE A STATUTORY OFFENSE AND THAT HE WAS THEREFORE NOT REQUIRED
TO RULE UPON THE CONSTITUTIONAL QUESTIONS PRESENTED.  138 F. SUPP. 53. 
THE CASE CAME HERE, 351 U.S. 904, UNDER THE CRIMINAL APPEALS ACT OF
1907, AS AMENDED, 18 U.S.C. SEC.  3731. 

IT IS DESIRABLE AT THE OUTSET TO QUOTE THE STATUTE IN ITS ENTIRETY: 

"IT IS UNLAWFUL FOR ANY NATIONAL BANK, OR ANY CORPORATION ORGANIZED
BY AUTHORITY OF ANY LAW OF CONGRESS, TO MAKE A CONTRIBUTION OR
EXPENDITURE IN CONNECTION WITH ANY ELECTION TO ANY POLITICAL OFFICE, OR
IN CONNECTION WITH ANY PRIMARY ELECTION OR POLITICAL CONVENTION OR
CAUCUS HELD TO SELECT CANDIDATES FOR ANY POLITICAL OFFICE, OR FOR ANY
CORPORATION WHATEVER, OR ANY LABOR ORGANIZATION TO MAKE A CONTRIBUTION
OR EXPENDITURE IN CONNECTION WITH ANY ELECTION AT WHICH PRESIDENTIAL
AND VICE PRESIDENTIAL ELECTORS OR A SENATOR OR REPRESENTATIVE IN, OR A
DELEGATE OR RESIDENT COMMISSIONER TO CONGRESS ARE TO BE VOTED FOR, OR
IN CONNECTION WITH ANY PRIMARY ELECTION OR POLITICAL CONVENTION OR
CAUCUS HELD TO SELECT CANDIDATES FOR ANY OF THE FOREGOING OFFICES, OR
FOR ANY CANDIDATE, POLITICAL COMMITTEE, OR OTHER PERSON TO ACCEPT OR
RECEIVE ANY CONTRIBUTION PROHIBITED BY THIS SECTION. 

"EVERY CORPORATION OR LABOR ORGANIZATION WHICH MAKES ANY CONTRIBUTION
OR EXPENDITURE IN VIOLATION OF THIS SECTION SHALL BE FINED NOT MORE
THAN $5,000; AND EVERY OFFICER OR DIRECTOR OF ANY CORPORATION, OR
OFFICER OF ANY LABOR ORGANIZATION, WHO CONSENTS TO ANY CONTRIBUTION OR
EXPENDITURE BY THE CORPORATION OR LABOR ORGANIZATION, AS THE CASE MAY
BE, AND ANY PERSON WHO ACCEPTS OR RECEIVES ANY CONTRIBUTION, IN
VIOLATION OF THIS SECTION, SHALL BE FINED NOT MORE THAN $1,000 OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH; AND IF THE VIOLATION WAS
WILLFUL, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE
THAN TWO YEARS, OR BOTH. 

"FOR THE PURPOSES OF THIS SECTION 'LABOR ORGANIZATION' MEANS ANY
ORGANIZATION OF ANY KIND, OR ANY AGENCY OR EMPLOYEE REPRESENTATION
COMMITTEE OR PLAN, IN WHICH EMPLOYEES PARTICIPATE AND WHICH EXIST FOR
THE PURPOSE, IN WHOLE OR IN PART, OF DEALING WITH EMPLOYERS CONCERNING
GRIEVANCES, LABOR DISPUTES, WAGES, RATES OF PAY, HOURS OF EMPLOYMENT,
OR CONDITIONS OF WORK."  18 U.S.C. SEC. 610, TAKEN FROM THE ACT OF JUNE
23, 1947, 61 STAT. 136, 159. 

APPRECIATION OF THE CIRCUMSTANCES THAT BEGOT THIS STATUTE IS
NECESSARY FOR ITS UNDERSTANDING, AND UNDERSTANDING OF IT IS NECESSARY
FOR ADJUDICATION OF THE LEGAL PROBLEMS BEFORE US.  SPEAKING BROADLY,
WHAT IS INVOLVED HERE IS THE INTEGRITY OF OUR ELECTORAL PROCESS, AND,
NOT LESS, THE RESPONSIBILITY OF THE INDIVIDUAL CITIZEN FOR THE
SUCCESSFUL FUNCTIONING OF THAT PROCESS.  THIS CASE THUS RAISES ISSUES
NOT LESS THAN BASIC TO A DEMOCRATIC SOCIETY. 

THE CONCENTRATION OF WEALTH CONSEQUENT UPON THE INDUSTRIAL EXPANSION
IN THE POST-CIVIL WAR ERA HAD PROFOUND IMPLICATIONS FOR AMERICAN LIFE. 
THE IMPACT OF THE ABUSES RESULTING FROM THIS CONCENTRATION GRADUALLY
MADE ITSELF FELT BY A RISING TIDE OF REFORM PROTEST IN THE LAST DECADE
OF THE NINETEENTH CENTURY.  THE SHERMAN LAW WAS A RESPONSE TO THE FELT
THREAT TO ECONOMIC FREEDOM CREATED BY ENORMOUS INDUSTRIAL COMBINES. 
THE INCOME TAX LAW OF 1894 REFLECTED CONGRESSIONAL CONCERN OVER THE
GROWING DISPARITY OF INCOME BETWEEN THE MANY AND THE FEW. 

NO LESS LIVELY, ALTHOUGH SLOWER TO EVOKE FEDERAL ACTION, WAS POPULAR
FEELING THAT AGGREGATED CAPITAL UNDULY INFLUENCED POLITICS, AN
INFLUENCE NOT STOPPING SHORT OF CORRUPTION.  THE MATTER IS NOT
EXAGGERATED BY TWO LEADING HISTORIANS: 

"THE NATION WAS FABULOUSLY RICH BUT ITS WEALTH WAS GRAVITATING
RAPIDLY INTO THE HANDS OF A SMALL PORTION OF THE POPULATION, AND THE
POWER OF WEALTH THREATENED TO UNDERMINE THE POLITICAL INTEGRITY OF THE
REPUBLIC."  2 MORISON AND COMMAGER, THE GROWTH OF THE AMERICAN REPUBLIC
(4TH ED. 1950), 355. 

IN THE '90'S MANY STATES PASSED LAWS REQUIRING CANDIDATES FOR OFFICE
AND THEIR POLITICAL COMMITTEES TO MAKE PUBLIC THE SOURCES AND AMOUNTS
OF CONTRIBUTIONS TO THEIR CAMPAIGN FUNDS AND THE RECIPIENTS AND AMOUNTS
OF THEIR CAMPAIGN EXPENDITURES.  THE THEORY BEHIND THESE LAWS WAS THAT
THE SPOTLIGHT OF PUBLICITY WOULD DISCOURAGE CORPORATIONS FROM MAKING
POLITICAL CONTRIBUTIONS AND WOULD THEREBY END THEIR CONTROL OVER PARTY
POLICIES.  BUT THESE STATE PUBLICITY LAWS EITHER BECAME DEAD LETTERS OR
WERE FOUND TO BE FUTILE.  AS EARLY AS 1894, THE SOBERMINDED ELIHU ROOT
SAW THE NEED FOR MORE EFFECTIVE LEGISLATION.  HE URGED THE
CONSTITUTIONAL CONVENTION OF THE STATE OF NEW YORK TO PROHIBIT
POLITICAL CONTRIBUTIONS BY CORPORATIONS: 

"THE IDEA IS TO PREVENT  ...  THE GREAT RAILROAD COMPANIES, THE GREAT
INSURANCE COMPANIES, THE GREAT TELEPHONE COMPANIES, THE GREAT
AGGREGATIONS OF WEALTH FROM USING THEIR CORPORATE FUNDS, DIRECTLY OR
INDIRECTLY, TO SEND MEMBERS OF THE LEGISLATURE TO THESE HALLS IN ORDER
TO VOTE FOR THEIR PROTECTION AND THE ADVANCEMENT OF THEIR INTERESTS AS
AGAINST THOSE OF THE PUBLIC.  IT STRIKES AT A CONSTANTLY GROWING EVIL
WHICH HAS DONE MORE TO SHAKE THE CONFIDENCE OF THE PLAIN PEOPLE OF
SMALL MEANS OF THIS COUNTRY IN OUR POLITICAL INSTITUTIONS THAN ANY
OTHER PRACTICE WHICH HAS EVER OBTAINED SINCE THE FOUNDATION OF OUR
GOVERNMENT.  AND I BELIEVE THAT THE TIME HAS COME WHEN SOMETHING OUGHT
TO BE DONE TO PUT A CHECK TO THE GIVING OF $50,000 OR $100,000 BY A
GREAT CORPORATION TOWARD POLITICAL PURPOSES UPON THE UNDERSTANDING THAT
A DEBT IS CREATED FROM A POLITICAL PARTY TO IT."  QUOTED IN HEARINGS
BEFORE HOUSE COMMITTEE ON ELECTIONS, 59TH CONG., 1ST SESS. 12; SEE
ROOT, ADDRESSES ON GOVERNMENT AND CITIZENSHIP (BACON AND SCOTT ED.
1916), 143. 

CONCERN OVER THE SIZE AND SOURCE OF CAMPAIGN FUNDS SO ACTIVELY
ENTERED THE PRESIDENTIAL CAMPAIGN OF 1904 THAT IT CRYSTALLIZED POPULAR
SENTIMENT FOR FEDERAL ACTION TO PURGE NATIONAL POLITICS OF WHAT WAS
CONCEIVED TO BE THE PERNICIOUS INFLUENCE OF "BIG MONEY" CAMPAIGN
CONTRIBUTIONS.  A FEW DAYS AFTER THE ELECTION OF 1904, THE DEFEATED
CANDIDATE FOR THE PRESIDENCY SAID: 

"THE GREATEST MORAL QUESTION WHICH NOW CONFRONTS US IS, SHALL THE
TRUSTS AND CORPORATIONS BE PREVENTED FROM CONTRIBUTING MONEY TO CONTROL
OR AID IN CONTROLLING ELECTIONS?"  QUOTED, HEARINGS, SUPRA, AT 56. 

PRESIDENT THEODORE ROOSEVELT QUICKLY RESPONDED TO THIS NATIONAL
MOOD.  IN HIS ANNUAL MESSAGE TO CONGRESS ON DECEMBER 5, 1905, HE
RECOMMENDED THAT: 

"ALL CONTRIBUTIONS BY CORPORATIONS TO ANY POLITICAL COMMITTEE OR FOR
ANY POLITICAL PURPOSE SHOULD BE FORBIDDEN BY LAW; DIRECTORS SHOULD NOT
BE PERMITTED TO USE STOCKHOLDERS' MONEY FOR SUCH PURPOSES; AND,
MOREOVER, A PROHIBITION OF THIS KIND WOULD BE, AS FAR AS IT WENT, AN
EFFECTIVE METHOD OF STOPPING THE EVILS AIMED AT IN CORRUPT PRACTICES
ACTS."  40 CONG. REC. 96. 

GRIST WAS ADDED TO THE REFORMERS' MILL BY THE INVESTIGATION OF THE
GREAT LIFE INSURANCE COMPANIES CONDUCTED BY THE JOINT COMMITTEE OF THE
NEW YORK LEGISLATURE, THE ARMSTRONG COMMITTEE, UNDER THE GUIDANCE OF
CHARLES EVANS HUGHES.  THE COMMITTEE'S REPORT, FILED EARLY IN 1906,
REVEALED THAT ONE INSURANCE COMPANY ALONE HAD CONTRIBUTED ALMOST
$50,000 TO A NATIONAL CAMPAIGN COMMITTEE IN 1904 AND HAD GIVEN
SUBSTANTIAL AMOUNTS IN PRECEDING PRESIDENTIAL CAMPAIGNS.  THE COMMITTEE
CONCLUDED: 

"CONTRIBUTIONS BY INSURANCE CORPORATIONS FOR POLITICAL PURPOSES
SHOULD BE STRICTLY FORBIDDEN.  NEITHER EXECUTIVE OFFICERS NOR DIRECTORS
SHOULD BE ALLOWED TO USE THE MONEYS PAID FOR PURPOSES OF INSURANCE IN
SUPPORT OF POLITICAL CANDIDATES OR PLATFORMS  ...  .  WHETHER MADE FOR
THE PURPOSE OF SUPPORTING POLITICAL VIEWS OR WITH THE DESIRE TO OBTAIN
PROTECTION FOR THE CORPORATION, THESE CONTRIBUTIONS HAVE BEEN WHOLLY
UNJUSTIFIABLE.  IN THE ONE CASE EXECUTIVE OFFICERS HAVE SOUGHT TO
IMPOSE THEIR POLITICAL VIEWS UPON A CONSTITUENCY OF DIVERGENT
CONVICTIONS, AND IN THE OTHER THEY HAVE BEEN GUILTY OF A SERIOUS
OFFENSE AGAINST PUBLIC MORALS.  THE FRANK ADMISSION THAT MONEYS HAVE
BEEN OBTAINED FOR USE IN STATE CAMPAIGNS UPON THE EXPECTATION THAT
CANDIDATES THUS AIDED IN THEIR ELECTION WOULD SUPPORT THE INTERESTS OF
THE COMPANIES, HAS EXPOSED BOTH THOSE WHO SOLICITED THE CONTRIBUTIONS
AND THOSE WHO MADE THEM TO SEVERE AND JUST CONDEMNATION."  REPORT OF
THE JOINT COMMITTEE OF THE SENATE AND ASSEMBLY OF THE STATE OF NEW YORK
APPOINTED TO INVESTIGATE THE AFFAIRS OF LIFE INSURANCE COMPANIES, 397
(1906). 

LESS THAN A MONTH LATER THE COMMITTEE ON ELECTIONS OF THE HOUSE OF
REPRESENTATIVES BEGAN CONSIDERING A NUMBER OF PROPOSALS DESIGNED TO
CLEANSE THE POLITICAL PROCESS.  SOME BILLS PROHIBITED POLITICAL
CONTRIBUTIONS BY CERTAIN CLASSES OF CORPORATIONS; SOME MERELY REQUIRED
DISCLOSURE OF CONTRIBUTIONS; AND OTHER MADE BRIBERY AT ELECTIONS A
FEDERAL CRIME.  THE FEELING OF ARTICULATE REFORM GROUPS WAS REFLECTED
AT A PUBLIC HEARING HELD BY THE COMMITTEE.  PERRY BELMONT, LEADER OF A
NATION-WIDE ORGANIZATION ADVOCATING A FEDERAL PUBLICITY BILL, STATED: 

"  ...  THIS THING HAS COME TO THE BREAKING POINT.  WE HAVE HAD
ENOUGH OF IT.  WE DON'T WANT ANY MORE SECRET PURCHASE OF ORGANIZATIONS,
WHICH NULLIFIES PLATFORMS, NULLIFIES POLITICAL UTTERANCES AND THE
PLEDGES MADE BY POLITICAL LEADERS IN AND OUT OF CONGRESS."  HEARINGS
BEFORE HOUSE COMMITTEE ON ELECTIONS, 59TH CONG., 1ST SESS. 12. 

THIS VIEW FOUND STRONG SUPPORT IN THE TESTIMONY OF SAMUEL GAOMPERS,
PRESIDENT OF THE AMERICAN FEDERATION OF LABOR, WHO SAID, WITH RESPECT
TO THE PUBLICITY BILL: 

"WHETHER THIS BILL MEETS ALL OF THE NEEDS MAY BE QUESTIONED; THAT IS
OPEN TO DISCUSSION; BUT THE NECESSITY FOR SOME LAW UPON THE SUBJECT IS
PATENT TO EVERY MAN WHO HOPES FOR THE MAINTENANCE OF THE INSTITUTIONS
UNDER WHICH WE LIVE.  IT IS DOUBTFUL TO MY MIND IF THE CONTRIBUTIONS
AND EXPENDITURES OF VAST SUMS OF MONEY IN THE NOMINATIONS AND ELECTIONS
FOR OUR PUBLIC OFFICES CAN CONTINUE TO INCREASE WITHOUT ENDANGERING THE
ENDURANCE OF OUR REPUBLIC IN ITS PURITY AND IN ITS ESSENCE. 

"  ...  IF THE INTERESTS OF ANY PEOPLE ARE THREATENED BY CORRUPTION
IN OUR PUBLIC LIFE OR CORRUPTION IN ELECTIONS, SURELY IT MUST OF
NECESSITY BE THOSE, THAT LARGE CLASS OF PEOPLE, WHOM WE FOR CONVENIENCE
TERM THE WAGEWORKERS. 

"I AM NOT IN A MOOD, AND NEVER AM, TO INDULGE IN DENUNCIATIONS OR
CRITICISM, BUT IT DOES COME TO ME SOMETIMES THAT ONE OF THE REASONS FOR
THE ABSENCE OF LEGISLATION OF A LIBERAL OR SYMPATHETIC OR JUST
CHARACTER, SO FAR AS IT AFFECTS THE INTEREST OF THE WAGE-EARNERS OF
AMERICA, CAN BE FAIRLY WELL TRACED WITH THE GROWTH OF THE CORRUPTION
FUNDS AND THE INFLUENCES THAT ARE IN OPERATION DURING ELECTIONS AND
CAMPAIGNS  ...  .  I AM UNDER THE IMPRESSION THAT THE PATIENCE OF THE
AMERICAN WORKINGMEN IS ABOUT EXHAUSTED: 

     *       *         *         *         * 

"  ...  IF WE ARE REALLY DETERMINED THAT OUR ELECTIONS SHALL BE FREE
FROM THE POWER OF MONEY AND ITS LAVISH USE AND EXPENDITURE WITHOUT AN
ACCOUNTING TO THE CONSCIENCE AND THE JUDGMENT OF THE PEOPLE OF AMERICA,
WE WILL HAVE TO PASS SOME MEASURE OF THIS KIND."  ID., AT 28-31. 

PRESIDENT ROOSEVELT'S ANNUAL MESSAGE OF 1906 LISTED AS THE FIRST ITEM
OF CONGRESSIONAL BUSINESS A LAW PROHIBITING POLITICAL CONTRIBUTIONS BY
CORPORATIONS.  41 CONG. REC. 22.  SHORTLY THEREAFTER, IN 1907, CONGRESS
PROVIDED: 

"THAT IT SHALL BE UNLAWFUL FOR ANY NATIONAL BANK, OR ANY CORPORATION
ORGANIZED BY AUTHORITY OF ANY LAWS OF CONGRESS, TO MAKE A MONEY
CONTRIBUTION IN CONNECTION WITH ANY ELECTION TO ANY POLITICAL OFFICE. 
IT SHALL ALSO BE UNLAWFUL FOR ANY CORPORATION WHATEVER TO MAKE A MONEY
CONTRIBUTION IN CONNECTION WITH ANY ELECTION AT WHICH PRESIDENTIAL AND
VICE-PRESIDENTIAL ELECTORS OR A REPRESENTATIVE IN CONGRESS IS TO BE
VOTED FOR OR ANY ELECTION BY ANY STATE LEGISLATURE OF A UNITED STATES
SENATOR."  34 STAT. 864. 

AS THE HISTORICAL BACKGROUND OF THIS STATUTE INDICATES, ITS AIM WAS
NOT MERELY TO PREVENT THE SUBVERSION OF THE INTEGRITY OF THE ELECTORAL
PROCESS.  ITS UNDERLYING PHILOSOPHY WAS TO SUSTAIN THE ACTIVE, ALERT
RESPONSIBILITY OF THE INDIVIDUAL CITIZEN IN A DEMOCRACY FOR THE WISE
CONDUCT OF GOVERNMENT.    THIS ACT OF 1907 WAS MERELY THE FIRST
CONCRETE MANIFESTATION OF A CONTINUING CONGRESSIONAL CONCERN FOR
ELECTIONS "FREE FROM THE POWER OF MONEY."  (SEE STATEMENT OF SAMUEL
GOMPERS, SUPRA.)  THE 1909 CONGRESS WITNESSED UNSUCCESSFUL ATTEMPTS TO
AMEND THE ACT TO PROSCRIBE THE CONTRIBUTION OF ANYTHING OF VALUE AND TO
EXTEND ITS APPLICATION TO THE ELECTION OF STATE LEGISLATURES.  THE
CONGRESS OF 1910 TRANSLATED POPULAR DEMAND FOR FURTHER CURBS UPON THE
POLITICAL POWER OF WEALTH INTO A PUBLICITY LAW THAT REQUIRED COMMITTEES
OPERATING TO INFLUENCE THE RESULTS OF CONGRESSIONAL ELECTIONS IN TWO OR
MORE STATES TO REPORT ALL CONTRIBUTIONS AND DISBURSEMENTS AND TO
IDENTIFY CONTRIBUTORS AND RECIPIENTS OF SUBSTANTIAL SUMS.  THAT LAW
ALSO REQUIRED PERSONS WHO SPENT MORE THAN $50 ANNUALLY FOR THE PURPOSE
OF INFLUENCING CONGRESSIONAL ELECTIONS IN MORE THAN ONE STATE TO REPORT
THOSE EXPENDITURES IF THEY WERE NOT MADE THROUGH A POLITICAL
COMMITTEE.  36 STAT. 822.  AT THE NEXT SESSION THAT ACT WAS EXTENDED TO
REQUIRE ALL CANDIDATES FOR THE SENATE AND THE HOUSE OF REPRESENTATIVES
TO MAKE DETAILED REPORTS WITH RESPECT TO BOTH NOMINATING AND ELECTION
CAMPAIGNS.  THE AMENDMENT ALSO PLACED MAXIMUM LIMITS ON THE AMOUNTS
THAT CONGRESSIONAL CANDIDATES COULD SPEND IN SEEKING NOMINATION AND
ELECTION, AND FORBADE THEM FROM PROMISING EMPLOYMENT FOR THE PURPOSE OF
OBTAINING SUPPORT.  37 STAT. 25.  AND IN 1918 CONGRESS MADE IT UNLAWFUL
EITHER TO OFFER OR TO SOLICIT ANYTHING OF VALUE TO INFLUENCE VOTING. 
40 STAT. 1013. 

THIS COURT'S DECISION IN NEWBERRY V. UNITED STATES, 256 U.S. 232,
INVALIDATING FEDERAL REGULATION OF SENATE PRIMARY ELECTIONS, LED TO THE
FEDERAL CORRUPT PRACTICES ACT OF 1925, 43 STAT. 1070, A COMPREHENSIVE
REVISION OF EXISTING LEGISLATION.  THE DEBATES PRECEDING THAT ACT'S
PASSAGE REVEAL AN ATTITUDE IMPORTANT TO AN UNDERSTANDING OF THE COURSE
OF THIS LEGISLATION.  THUS, SENATOR ROBINSON, ONE OF THE LEADERS OF THE
SENATE, SAID: 

"WE ALL KNOW  ...  THAT ONE OF THE GREAT POLITICAL EVILS OF THE TIME
IS THE APPARENT HOLD ON POLITICAL PARTIES WHICH BUSINESS INTERESTS AND
CERTAIN ORGANIZATIONS SEEK AND SOMETIMES OBTAIN BY REASON OF LIBERAL
CAMPAIGN CONTRIBUTIONS.  MANY BELIEVE THAT WHEN AN INDIVIDUAL OR
ASSOCIATION OF INDIVIDUALS MAKES LARGE CONTRIBUTIONS FOR THE PURPOSE OF
AIDING CANDIDATES OF POLITICAL PARTIES IN WINNING THE ELECTIONS, THEY
EXPECT, AND SOMETIMES DEMAND, AND OCCASIONALLY, AT LEAST, RECEIVE,
CONSIDERATION BY THE BENEFICIARIES OF THEIR CONTRIBUTIONS WHICH NOT
INFREQUENTLY IS HARMFUL TO THE GENERAL PUBLIC INTEREST.  IT IS
UNQUESTIONABLY AN EVIL WHICH OUGHT TO BE DEALT WITH, AND DEALT WITH
INTELLIGENTLY AND EFFECTIVELY."  65 CONG.  REC. 9507-9508. 

ONE OF THE MEANS CHOSEN BY CONGRESS TO DEAL WITH THIS EVIL WAS SEC.
313 OF THE 1925 ACT, WHICH STRENGTHENED THE 1907 STATUTE (1) BY
CHANGING THE PHRASE "MONEY CONTRIBUTION" TO "CONTRIBUTION" (SEC. 302(D)
DEFINED "CONTRIBUTION" BROADLY); (2) BY EXTENDING THE PROHIBITION ON
CORPORATE CONTRIBUTIONS TO THE ELECTION TO CONGRESS OF DELEGATES AND
RESIDENT COMMISSIONERS; AND (3) BY PENALIZING THE RECIPIENT OF ANY
FORBIDDEN CONTRIBUTION AS WELL AS THE CONTRIBUTOR. 

WHEN, IN 1940, CONGRESS MOVED TO EXTEND THE HATCH ACT, 53 STAT. 1147,
WHICH WAS DESIGNED TO FREE THE POLITICAL PROCESS OF THE ABUSES DEEMED
TO ACCOMPANY THE OPERATION OF A VAST CIVIL ADMINISTRATION, ITS
REFORMING ZEAL ALSO LED CONGRESS TO PLACE FURTHER RESTRICTIONS UPON THE
POLITICAL POTENTIALITIES OF WEALTH.  SECTION 20 OF THE LAW AMENDING THE
HATCH ACT MADE IT UNLAWFUL FOR ANY "POLITICAL COMMITTEE," AS DEFINED IN
THE ACT OF 1925, TO RECEIVE CONTRIBUTIONS OF MORE THAN $3,000,000 OR TO
MAKE EXPENDITURES OF MORE THAN THAT AMOUNT IN ANY CALENDAR YEAR.  AND
SEC. 13 MADE IT UNLAWFUL "FOR ANY PERSON, DIRECTLY OR INDIRECTLY, TO
MAKE CONTRIBUTIONS IN AN AGGREGATE AMOUNT IN EXCESS OF $5,000, DURING
ANY CALENDAR YEAR, OR IN CONNECTION WITH ANY CAMPAIGN FOR NOMINATION OR
ELECTION, TO OR ON BEHALF OF ANY CANDIDATE FOR AN ELECTIVE FEDERAL
OFFICE" OR ANY COMMITTEE SUPPORTING SUCH A CANDIDATE.  THE TERM
"PERSON" WAS DEFINED TO INCLUDE ANY COMMITTEE, ASSOCIATION,
ORGANIZATION OR OTHER GROUP OF PERSONS.  54 STAT. 767.  IN OFFERING
SEC. 13 FROM THE SENATE FLOOR SENATOR BANKHEAD SAID: 

"WE ALL KNOW THAT MONEY IS THE CHIEF SOURCE OF CORRUPTION.  WE ALL
KNOW THAT LARGE CONTRIBUTIONS TO POLITICAL CAMPAIGNS NOT ONLY PUT THE
POLITICAL PARTY UNDER OBLIGATION TO THE LARGE CONTRIBUTORS, WHO DEMAND
PAY IN THE WAY OF LEGISLATION, BUT WE ALSO KNOW THAT LARGE SUMS OF
MONEY ARE USED FOR THE PURPOSE OF CONDUCTNG EXPENSIVE CAMPAIGNS THROUGH
THE NEWSPAPERS AND OVER THE RADIO; IN THE PUBLICATION OF ALL SORTS OF
LITERATURE, TRUE AND UNTRUE; AND FOR THE PURPOSE OF PAYING THE EXPENSES
OF CAMPAIGNERS SENT OUT INTO THE COUNTRY TO SPREAD PROPAGANDA, BOTH
TRUE AND UNTRUE."  86 CONG. REC. 2720. 

THE NEED FOR UNPRECEDENTED ECONOMIC MOBILIZATION PROPELLED BY WORLD
WAR II ENORMOUSLY STIMULATED THE POWER OF ORGANIZED LABOR AND SOON
AROUSED CONSCIOUSNESS OF ITS POWER OUTSIDE ITS RANKS.  WARTIME STRIKES
GAVE RISE TO FEARS OF THE NEW CONCENTRATION OF POWER REPRESENTED BY THE
GAINS OF TRADE UNIONISM.  AND SO THE BELIEF GREW THAT, JUST AS THE
GREAT CORPORATIONS HAD MADE HUGE POLITICAL CONTRIBUTIONS TO INFLUENCE
GOVERNMENTAL ACTION OR INACTION, WHETHER CONSCIOUSLY OR UNCONSCIOUSLY,
THE POWERFUL UNIONS WERE PURSUING A SIMILAR COURSE, AND WITH THE SAME
UNTOWARD CONSEQUENCES FOR THE DEMOCRATIC PROCESS.  THUS, IN 1943, WHEN
CONGRESS PASSED THE SMITH-CONNALLY ACT TO SECURE DEFENSE PRODUCTION
AGAINST WORK STOPPAGES, CONTAINED THEREIN WAS A PROVISION EXTENDING TO
LABOR ORGANIZATIONS, FOR THE DURATION OF THE WAR, SEC. 313 OF THE
CORRUPT PRACTICES ACT.  57 STAT. 163, 167.  THE TESTIMONY OF
CONGRESSMAN LANDIS, AUTHOR OF THIS MEASURE, BEFORE A SUBCOMMITTEE OF
THE HOUSE COMMITTEE ON LABOR MAKES PLAIN THE DOMINANT CONCERN THAT
EVOKED IT: 

"THE FACT THAT A HEARING HAS BEEN GRANTED IS A HIGH TRIBUTE TO THE
ABILITY OF THE LABOR COMMITTEE TO RECOGNIZE THE FACT THAT PUBLIC
OPINION TOWARD THE CONDUCT OF LABOR UNIONS IS RAPIDLY UNDERGOING A
CHANGE.  THE PUBLIC THINKS, AND HAS A RIGHT TO THINK, THAT LABOR
UNIONS, AS PUBLIC INSTITUTIONS SHOULD BE GRANTED THE SAME RIGHTS AND NO
GREATER RIGHTS THAN ANY OTHER PUBLIC GROUP.  MY BILL SEEKS TO PUT LABOR
UNIONS ON EXACTLY THE SAME BASIS, INSOFAR AS THEIR FINANCIAL ACTIVITIES
ARE CONCERNED, AS CORPORATIONS HAVE BEEN ON FOR MANY YEARS. 

     *         *         *         *         * 

"  ...  ONE OF THE MATTERS UPON WHICH I SENSED THAT THE PUBLIC WAS
TAKING A STAND OPPOSITE TO THAT OF LABOR LEADERS WAS THE QUESTION OF
THE HANDLING OF FUNDS OF LABOR ORGANIZATIONS.  THE PUBLIC WAS AROUSED
BY MANY RUMORS OF HUGE WAR CHESTS BEING MAINTAINED BY LABOR UNIONS, OF
ENORMOUS FEES AND DUES BEING EXTORTED FROM WAR WORKERS, OF POLITICAL
CONTRIBUTIONS TO PARTIES AND CANDIDATES WHICH LATER WERE HELD AS CLUBS
OVER THE HEAD OF HIGH FEDERAL OFFICIALS. 

     *         *         *         *        * 

"  ...  THE SOURCE OF MUCH OF THE NATIONAL TROUBLE TODAY IN THE COAL
STRIKE SITUATION IS THAT ILL-ADVISED POLITICAL CONTRIBUTION OF ANOTHER
DAY (REFERRING, APPARENTLY, TO THE REPORTED CONTRIBUTION OF OVER
$400,000 BY THE UNITED MINE WORKERS IN THE 1936 CAMPAIGN, SEE S. REP.
NO. 151, 75TH CONG., 1ST SESS.).  IF THE PROVISION OF MY BILL AGAINST
SUCH AN ACTIVITY HAS BEEN IN FORCE WHEN THAT CONTRIBUTION WAS MADE, THE
NATION, THE ADMINISTRATION, AND THE LABOR UNIONS WOULD BE BETTER OFF." 
HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON LABOR ON H.R.
804 AND H.R. 1483, 78TH CONG., 1ST SESS. 1, 2, 4. 

DESPITE SEC. 313'S WARTIME APPLICATION TO LABOR ORGANIZATIONS
CONGRESS WAS ADVISED OF ENORMOUS FINANCIAL OUTLAYS SAID TO HAVE BEEN
MADE BY SOME UNIONS IN CONNECTION WITH THE NATIONAL ELECTIONS OF 1944. 
THE SENATE'S SPECIAL COMMITTEE ON CAMPAIGN EXPENDITURES INVESTIGATED,
INTER ALIA, THE ROLE OF THE POLITICAL ACTION COMMITTEE OF THE CONGRESS
OF INDUSTRIAL ORGANIZATIONS.  THE COMMITTEE FOUND "NO CLEAR-CUT
VIOLATION OF THE CORRUPT PRACTICES ACT ON THE PART OF THE POLITICAL
ACTION COMMITTEE" ON THE GROUND THAT IT HAD MADE DIRECT CONTRIBUTIONS
ONLY TO CANDIDATES AND POLITICAL COMMITTEES INVOLVED IN STATE AND LOCAL
ELECTIONS AND FEDERAL PRIMARIES, TO WHICH THE ACT DID NOT APPLY, AND
HAD LIMITED ITS PARTICIPATION IN FEDERAL ELECTIONS TO POLITICAL
"EXPENDITURES," AS DISTINGUISHED FROM "CONTRIBUTIONS" TO CANDIDATES OR
COMMITTEES.  S. REP. NO. 101, 79TH CONG., 1ST SESS.  23.  THE COMMITTEE
ALSO INVESTIGATED, ON COMPLAINT OF SENATOR TAFT, THE OHIO C.I.O.
COUNCIL'S DISTRIBUTION TO THE PUBLIC AT LARGE OF 200,000 COPIES OF A
PAMPHLET OPPOSING THE RE-ELECTION OF SENATOR TAFT AND SUPPORTING HIS
RIVAL.  IN RESPONSE TO THE C.I.O.'S ASSERTION THAT THIS WAS NOT A
PROSCRIBED "CONTRIBUTION" BUT MERELY AN "EXPENDITURE OF ITS OWN FUNDS
TO STATE ITS POSITION TO THE WORLD, EXERCISING ITS RIGHT OF FREE SPEECH
...  ," THE COMMITTEE REQUESTED THE DEPARTMENT OF JUSTICE TO BRING A
TEST CASE ON THESE FACTS.  ID., AT 59.  IT ALSO RECOMMENDED EXTENSION
OF SEC. 313 TO COVER PRIMARY CAMPAIGNS AND NOMINATING CONVENTIONS. 
ID., AT 81.  A MINORITY OF THE COMMITTEE, SENATORS BALL AND FERGUSON,
ADVOCATED FURTHER AMENDMENT OF SEC. 313 TO PROSCRIBE "EXPENDITURES" AS
WELL AS "CONTRIBUTIONS" IN ORDER TO AVOID THE POSSIBILITY OF
EMASCULATION OF THE STATUTORY POLICY THROUGH A NARROW JUDICIAL
CONSTRUCTION OF "CONTRIBUTIONS."  ID., AT 83. 

THE 1945 REPORT OF THE HOUSE SPECIAL COMMITTEE TO INVESTIGATE
CAMPAIGN EXPENDITURES EXPRESSED CONCERN OVER THE VAST AMOUNTS THAT SOME
LABOR ORGANIZATIONS WERE DEVOTING TO POLITICS: 

"THE SCALE OF OPERATIONS OF SOME OF THESE ORGANIZATIONS IS
IMPRESSIVE.  WITHOUT EXCEPTION, THEY OPERATE ON A NATION-WIDE BASIS;
AND MANY OF THEM HAVE AFFILIATED LOCAL ORGANIZATIONS.  ONE WAS FOUND TO
HAVE AN ANNUAL BUDGET FOR 'EDUCATIONAL' WORK APPROXIMATING $1,500,000,
AND AMONG OTHER THINGS REGULARLY SUPPLIES OVER 500 RADIO STATIONS WITH
'BRIEFS FOR BROADCASTERS.'  ANOTHER, WITH AN ANNUAL BUDGET OF OVER
$300,000 FOR POLITICAL 'EDUCATION,' HAS DISTRIBUTED SOME 80,000,000
PIECES OF LITERATURE, INCLUDING A QUARTER MILLION COPIES OF ONE
ARTICLE.  ANOTHER, REPRESENTING AN ORGANIZED LABOR MEMBERSHIP OF
5,000,000, HAS RAISED $700,000 FOR ITS NATIONAL ORGANIZATIONS IN UNION
CONTRIBUTIONS FOR POLITICAL 'EDUCATION' IN A FEW MONTHS, AND A GREAT
DEAL MORE HAS BEEN RAISED FOR THE SAME PURPOSE AND EXPENDED BY ITS
LOCAL ORGANIZATIONS."  H.R. REP. NO. 2093, 78TH CONG., 2D SESS. 3.

LIKE THE SENATE COMMITTEE, IT ADVOCATED EXTENSION OF SEC. 313 TO
PRIMARIES AND NOMINATING CONVENTIONS, ID., AT 9, AND NOTED THE
EXISTENCE OF A CONTROVERSY OVER THE SCOPE OF "CONTRIBUTION."  ID., AT
11.  THE FOLLOWING YEAR THE HOUSE COMMITTEE MADE A FURTHER STUDY OF THE
ACTIVITIES OF ORGANIZATIONS ATTEMPTING TO INFLUENCE THE OUTCOME OF
FEDERAL ELECTIONS.  IT FOUND THAT THE BROTHERHOOD OF RAILWAY TRAINMEN
AND OTHER GROUPS EMPLOYED PROFESSIONAL POLITICAL ORGANIZERS, SPONSORED
PARTISAN RADIO PROGRAMS AND DISTRIBUTED CAMPAIGN LITERATURE.  H.R. REP.
NO. 2739, 79TH CONG., 2D SESS. 36-37.  IT CONCLUDED THAT: 

"THE INTENT AND PURPOSE OF THE PROVISION OF THE ACT PROHIBITING ANY
CORPORATION OR LABOR ORGANIZATION MAKING ANY CONTRIBUTION IN CONNECTION
WITH ANY ELECTION WOULD BE WHOLLY DEFEATED IF IT WERE ASSUMED THAT THE
TERM 'MAKING ANY CONTRIBUTION' RELATED ONLY TO THE DONATING OF MONEY
DIRECTLY TO A CANDIDATE, AND EXCLUDED THE VAST EXPENDITURES OF MONEY IN
THE ACTIVITIES HEREIN SHOWN TO BE ENGAGED IN EXTENSIVELY.  OF WHAT
AVAIL WOULD A LAW BE TO PROHIBIT THE CONTRIBUTING DIRECT TO A CANDIDATE
AND YET PERMIT THE EXPENDITURE OF LARGE SUMS IN HIS BEHALF? 

"THE COMMITTEE IS FIRMLY CONVINCED, AFTER A THOROUGH STUDY OF THE
PROVISIONS OF THE ACT, THE LEGISLATIVE HISTORY OF THE SAME, AND THE
DEBATES ON THE SAID PROVISIONS WHEN IT WAS PENDING BEFORE THE HOUSE,
THAT THE ACT WAS INTENDED TO PROHIBIT SUCH EXPENDITURES."  ID., AT 40. 

ACCORDINGLY, TO PREVENT FURTHER EVASION OF THE STATUTORY POLICY, THE
COMMITTEE ATTACHED TO ITS RECOMMENDATION THAT THE PROHIBITION OF
CONTRIBTUIONS BY LABOR ORGANIZATIONS BE MADE PERMANENT THE ADDITIONAL
PROPOSAL THAT THE STATUTE: 

"BE CLARIFIED SO AS TO SPECIFICALLY PROVIDE THAT EXPENDITURES OF
MONEY FOR SALARIES TO ORGANIZERS, PURCHASE OF RADIO TIME, AND OTHER
EXPENDITURES BY THE PROHIBITED ORGANIZATIONS IN CONNECTION WITH
ELECTIONS, CONSTITUTE VIOLATIONS OF THE PROVISIONS OF SAID SECTION,
WHETHER OR NOT SAID EXPENDITURES ARE WITH OR WITHOUT THE KNOWLEDGE OR
CONSENT OF THE CANDIDATES."  ID., AT 46. 

EARLY IN 1947 THE SPECIAL COMMITTEE TO INVESTIGATE SENATORIAL
CAMPAIGN EXPENDITURES IN THE 1946 ELECTIONS, THE ELLENDER COMMITTEE,
URGED SIMILAR ACTION TO "PLUG THE EXISTING LOOPHOLE."  S. REP. NO. 1,
PART 2, 80TH CONG., 1ST SESS. 38-39, AND SENATOR ELLENDER INTRODUCED A
BILL TO THAT EFFECT. 

SHORTLY THEREAFTER, CONGRESS AGAIN ACTED TO PROTECT THE POLITICAL
PROCESS FROM WHAT IT DEEMED TO BE THE CORRODING EFFECT OF MONEY
EMPLOYED IN ELECTIONS BY AGGREGATED POWER.  SECTION 304 OF THE LABOR
BILL INTRODUCED INTO THE HOUSE BY REPRESENTATIVE HARTLEY IN 1947, LIKE
THE ELLENDER BILL, EMBODIED THE CHANGES RECOMMENDED IN THE REPORTS OF
THE SENATE AND HOUSE COMMITTEES ON CAMPAIGN EXPENDITURES.  IT SOUGHT TO
AMEND SEC. 313 OF THE CORRUPT PRACTICES ACT TO PROSCRIBE ANY
"EXPENDITURE" AS WELL AS "ANY CONTRIBUTION," TO MAKE PERMANENT SEC.
313'S APPLICATION TO LABOR ORGANIZATIONS AND TO EXTEND ITS COVERAGE TO
FEDERAL PRIMARIES AND NOMINATING CONVENTIONS.  THE REPORT OF THE HOUSE
COMMITTEE ON EDUCATION AND LABOR, WHICH CONSIDERED AND APPROVED THE
HARTLEY BILL, MERELY SUMMARIZED SEC. 304, H.R. REP. NO. 245, 80TH
CONG., 1ST SESS. 46, AND THIS SECTION GAVE RISE TO LITTLE DEBATE IN THE
HOUSE.  SEE 93 CONG. REC. 3428, 3522.  BECAUSE NO SIMILAR MEASURE WAS
IN THE LABOR BILL INTRODUCED BY SENATOR TAFT, THE SENATE AS A WHOLE DID
NOT CONSIDER THE PROVISIONS OF SEC. 304 UNTIL THEY HAD BEEN ADOPTED BY
THE CONFERENCE COMMITTEE.  IN EXPLAINING SEC. 304 TO HIS COLLEAGUES,
SENATOR TAFT, WHO WAS ONE OF THE CONFEREES, SAID:    "I MAY SAY THAT
THE AMENDMENT IS IN EXACTLY THE SAME WORDS WHICH WERE RECOMMENDED BY
THE ELLENDER COMMITTEE, WHICH INVESTIGATED EXPENDITURES BY SENATORS IN
THE LAST ELECTION  ...  .  IN THIS INSTANCE THE WORDS OF THE SMITH
CONNALLY ACT HAVE BEEN SOMEWHAT CHANGED IN EFFECT SO AS TO PLUG UP A
LOOPHOLE WHICH OBVIOUSLY DEVELOPED, AND WHICH, IF THE COURTS HAD
PERMITTED ADVANTAGE TO BE TAKEN OF IT, AS A MATTER OF FACT, WOULD
ABSOLUTELY HAVE DESTROYED THE PROHIBITION AGAINST POLITICAL ADVERTISING
BY CORPORATIONS.  IF 'CONTRIBUTION' DOES NOT MEAN 'EXPENDITURE,' THEN A
CANDIDATE FOR OFFICE COULD HAVE HIS CORPORATION FRIENDS PUBLISH AN
ADVERTISEMENT FOR HIM IN THE NEWSPAPERS EVERY DAY FOR A MONTH BEFORE
ELECTION.  I DO NOT THINK THE LAW CONTEMPLATED SUCH A THING, BUT IT WAS
CLAIMED THAT IT DID, AT LEAST WHEN IT APPLIED TO LABOR ORGANIZATIONS. 
SO, ALL WE ARE DOING HERE IS PLUGGING UP THE HOLE WHICH DEVELOPED,
FOLLOWING THE RECOMMENDATION BY OUR OWN ELECTIONS COMMITTEE, IN THE
ELLENDER BILL."  93 CONG. REC. 6439. 

AFTER CONSIDERABLE DEBATE, THE CONFERENCE VERSION WAS APPROVED BY THE
SENATE, AND THE BILL SUBSEQUENTLY BECAME LAW DESPITE THE PRESIDENT'S
VETO.  IT IS THIS SECTION OF THE STATUTE THAT THE DISTRICT COURT HELD
DID NOT REACH THE ACTIVITIES ALLEGED IN THE INDICTMENT. 

ON REVIEW UNDER THE CRIMINAL APPEALS ACT OF A DISTRICT COURT JUDGMENT
DISMISSING AN INDICTMENT ON THE BASIS OF STATUTORY INTERPRETATION, THIS
COURT MUST TAKE THE INDICTMENT AS IT WAS CONSTRUED BY THE DISTRICT
JUDGE.  UNITED STATES V. BORDEN CO., 308 U.S. 188.  THE COURT BELOW
SUMMARIZED THE ALLEGATIONS OF THE INDICTMENT AT THE OUTSET OF ITS
OPINION: 

"HERE THE SPECIFIC CHARGE IS THAT THE 'EXPENDITURE' VIOLATION CAME IN
CONNECTION WITH THE SELECTION OF CANDIDATES FOR A SENATOR AND
REPRESENTATIVES TO THE UNITED STATES CONGRESS DURING THE 1954 PRIMARY
AND GENERAL ELECTIONS.  IT IS ALLEGED THAT DEFENDANT PAID A SPECIFIC
AMOUNT FROM ITS GENERAL TREASURY FUND TO LUCKOFF AND WAYBURN
PRODUCTIONS, DETROIT, MICHIGAN, TO DEFRAY THE COSTS OF CERTAIN
TELEVISION BROADCASTS SPONSORED BY THE UNION FROM COMMERCIAL TELEVISION
STATION WJBK. 

"IT IS CHARGED THAT THE BROADCASTS URGED AND ENDORSED SELECTION OF
CERTAIN PERSONS TO BE CANDIDATES FOR REPRESENTATIVES AND SENATOR TO THE
CONGRESS OF THE UNITED STATES AND INCLUDED EXPRESSIONS OF POLITICAL
ADVOCACY INTENDED BY DEFENDANT TO INFLUENCE THE ELECTORATE AND TO
AFFECT THE RESULTS OF THE ELECTION. 

"IT IS FURTHER CHARGED THAT THE FUND USED CAME FROM THE UNION'S DUES,
WAS NOT OBTAINED BY VOLUNTARY POLITICAL CONTRIBUTIONS OR SUBSCRIPTIONS
FROM MEMBERS OF THE UNION, AND WAS NOT PAID FOR BY ADVERTISING OR
SALES."  138 F. SUPP., AT 54. 

THUS, FOR OUR PURPOSES, THE INDICTMENT CHARGED APPELLEE WITH HAVING
USED UNION DUES TO SPONSOR COMMERCIAL TELEVISION BROADCASTS DESIGNED TO
INFLUENCE THE ELECTORATE TO SELECT CERTAIN CANDIDATES FOR CONGRESS IN
CONNECTION WITH THE 1954 ELECTIONS. 

TO DENY THAT SUCH ACTIVITY, EITHER ON THE PART OF A CORPORATION OR A
LABOR ORGANIZATION, CONSTITUTED AN "EXPENDITURE IN CONNECTION WITH ANY
FEDERAL ELECTION" IS TO DENY THE LONG SERIES OF CONGRESSIONAL EFFORTS
CALCULATED TO AVOID THE DELETERIOUS INFLUENCES ON FEDERAL ELECTIONS
RESULTING FROM THE USE OF MONEY BY THOSE WHO EXERCISE CONTROL OVER
LARGE AGGREGATIONS OF CAPITAL.  MORE PARTICULARLY, THIS COURT WOULD
HAVE TO IGNORE THE HISTORY OF THE STATUTE FROM THE TIME IT WAS FIRST
MADE APPLICABLE TO LABOR ORGANIZATIONS.  AS INDICATED BY THE REPORTS OF
THE CONGRESSIONAL COMMITTEES THAT INVESTIGATED CAMPAIGN EXPENDITURES,
IT WAS TO EMBRACE PRECISELY THE KIND OF INDIRECT CONTRIBUTION ALLEGED
IN THE INDICTMENT THAT CONGRESS AMENDED SEC. 313 TO PROSCRIBE
"EXPENDITURES."  IT IS OPEN TO THE GOVERNMENT TO PROVE UNDER THIS
INDICTMENT ACTIVITY BY APPELLEE THAT, EXCEPT FOR AN IRRELEVANT
DIFFERENCE IN THE MEDIUM OF COMMUNICATION EMPLOYED, IS VIRTUALLY
INDISTINGUISHABLE FROM THE BROTHERHOOD OF RAILWAY TRAINMEN'S PURCHASE
OF RADIO TIME TO SPONSOR CANDIDATES OR THE OHIO C.I.O.'S GENERAL
DISTRIBUTION OF PAMPHLETS TO OPPOSE SENATOR TAFT.  BECAUSE SUCH CONDUCT
WAS CLAIMED TO BE MERELY "AN EXPENDITURE BY THE UNION OF ITS OWN FUNDS
TO STATE ITS POSITION TO THE WORLD," THE SENATE AND HOUSE COMMITTEES
RECOMMENDED AND CONGRESS ENACTED, AS WE HAVE SEEN, THE PROHIBITION OF
"EXPENDITURES" AS WELL AS "CONTRIBUTIONS" TO "PLUG THE EXISTING
LOOPHOLE." 

ALTHOUGH NOT ENTITLED TO THE SAME WEIGHT AS THESE CAREFULLY
CONSIDERED COMMITTEE REPORTS, THE SENATE DEBATE PRECEDING THE PASSAGE
OF THE TAFT-HARTLEY ACT CONFIRMS WHAT THESE REPORTS DEMONSTRATE.   A
COLLOQUY BETWEEN SENATOR TAFT AND SENATOR PEPPER DEALT WITH THE PROBLEM
CONFRONTING US: 

"MR. PEPPER.  DOES WHAT THE SENATOR HAS SAID IN THE PAST ALSO APPLY
TO A RADIO SPEECH?  IF A NATIONAL LABOR UNION, FOR EXAMPLE, SHOULD
BELIEVE THAT IT WAS IN THE PUBLIC INTEREST TO ELECT THE DEMOCRATIC
PARTY INSTEAD OF THE REPUBLICAN PARTY, OR VICE VERSA, WOULD IT BE
FORBIDDEN BY THIS PROPOSED ACT TO PAY FOR ANY RADIO TIME, FOR ANYBODY
TO MAKE A SPEECH THAT WOULD EXPRESS TO THE PEOPLE THE POINT OF VIEW OF
THAT ORGANIZATION? 

"MR. TAFT.  IF IT CONTRIBUTED ITS OWN FUNDS TO GET SOMEBODY TO MAKE
THE SPEECH, I WOULD SAY THEY WOULD VIOLATE THE LAW. 

"MR. PEPPER.  IF THEY PAID FOR THE RADIO TIME? 

"MR. TAFT.  IF THEY ARE SIMPLY GIVING THE TIME, I WOULD SAY NOT; I
WOULD SAY THAT IS IN THE COURSE OF THEIR REGULAR BUSINESS. 

"MR. PEPPER.  WHAT I MEAN IS THIS:  I WAS NOT ASSUMING THAT THE RADIO
STATION WAS OWNED BY THE LABOR ORGANIZATION.  SUPPOSE THAT IN THE 1948
CAMPAIGN, MR. WILLIAM GREEN, AS PRESIDENT OF THE AMERICAN FEDERATION OF
LABOR, SHOULD BELIEVE IT TO BE IN THE INTEREST OF HIS MEMBERSHIP TO GO
ON THE RADIO AND SUPPORT ONE PARTY OR THE OTHER IN THE NATIONAL
ELECTION, AND SHOULD USE AMERICAN FEDERATION OF LABOR FUNDS TO PAY FOR
THE RADIO TIME.  WOULD THAT BE AN EXPENDITURE WHICH IS FORBIDDEN TO A
LABOR ORGANIZATION UNDER THE STATUTE? 

"MR. TAFT.  YES."  93 CONG. REC. 6439. 

THE DISCUSSION THAT FOLLOWED, WHILE SUGGESTING THAT DIFFICULT
QUESTIONS MIGHT ARISE AS TO WHETHER OR NOT A PARTICULAR BROADCAST FELL
WITHIN THE STATUTE, BUTTRESSES THE CONCLUSION THAT SEC. 304 WAS
UNDERSTOOD TO PROSCRIBE THE EXPENDITURE OF UNION DUES TO PAY FOR
COMMERCIAL BROADCASTS THAT ARE DESIGNED TO URGE THE PUBLIC TO ELECT A
CERTAIN CANDIDATE OR PARTY.  (FN1) 

UNITED STATES V. C.I.O., 335 U.S. 106, PRESENTED A DIFFERENT
SITUATION.  THE DECISION IN THAT CASE RESTED ON THE COURT'S READING OF
AN INDICTMENT THAT CHARGED DEFENDANTS WITH HAVING DISTRIBUTED ONLY TO
UNION MEMBERS OR PURCHASERS AN ISSUE, VOL. 10, NO. 28, OF "THE CIO
NEWS," A WEEKLY NEWSPAPER OWNED AND PUBLISHED BY THE C.I.O.  THAT ISSUE
CONTAINED A STATEMENT BY THE C.I.O. PRESIDENT URGING ALL MEMBERS OF THE
C.I.O. TO VOTE FOR A CERTAIN CANDIDATE.  THUS, UNLIKE THE UNION
SPONSORED POLITICAL BROADCAST ALLEGED IN THIS CASE, THE COMMUNICATION
FOR WHICH THE DEFENDANTS WERE INDICTED IN C.I.O. WAS NEITHER DIRECTED
NOR DELIVERED TO THE PUBLIC AT LARGE.  THE ORGANIZATION MERELY
DISTRIBUTED ITS HOUSE ORGAN TO ITS OWN PEOPLE.  THE EVIL AT WHICH
CONGRESS HAS STRUCK IN SEC. 313 IS THE USE OF CORPORATION OR UNION
FUNDS TO INFLUENCE THE PUBLIC AT LARGE TO VOTE FOR A PARTICULAR
CANDIDATE OR A PARTICULAR PARTY. 

OUR HOLDING THAT THE DISTRICT COURT COMMITTED ERROR WHEN IT DISMISSED
THE INDICTMENT FOR HAVING FAILED TO STATE AN OFFENSE UNDER THE STATUTE
IMPLIES NO DISRESPECT FOR "THE CARDINAL RULE OF CONSTRUCTION, THAT
WHERE THE LANGUAGE OF AN ACT WILL BEAR TWO INTERPRETATIONS, EQUALLY
OBVIOUS, THAT ONE WHICH IS CLEARLY IN ACCORDANCE WITH THE PROVISIONS OF
THE CONSTITUTION IS TO BE PREFERRED."  KNIGHTS TEMPLARS' INDEMNITY CO.
V. JARMAN, 187 U.S. 197, 205.  THE CASE BEFORE US DOES NOT CALL FOR ITS
APPLICATION.  HERE ONLY ONE INTERPRETATION MAY BE FAIRLY DERIVED FROM
THE RELEVANT MATERIALS.  THE RULE OF CONSTRUCTION TO BE INVOKED WHEN
CONSTITUTIONAL PROBLEMS LURK IN AN AMBIGUOUS STATUTE DOES NOT PERMIT
DISREGARD OF WHAT CONGRESS COMMANDS. 

APPELLEE URGES THAT IF, AS WE HOLD, 18 U.S.C. SEC. 610 EMBRACES THE
ACTIVITY ALLEGED IN THE INDICTMENT, IT OFFENDS SEVERAL RIGHTS
GUARANTEED BY THE CONSTITUTION.  (FN2)  THE GOVERNMENT REPLIES THAT THE
ACTUAL RESTRAINT UPON UNION POLITICAL ACTIVITY IMPOSED BY THE STATUTE
IS SO NARROWLY LIMITED THAT CONGRESS DID NOT EXCEED ITS POWERS TO
PROTECT THE POLITICAL PROCESS FROM UNDUE INFLUENCE OF LARGE
AGGREGATIONS OF CAPITAL AND TO PROMOTE INDIVIDUAL RESPONSIBILITY FOR
DEMOCRATIC GOVERNMENT.  ONCE MORE WE ARE CONFRONTED WITH THE DUTY OF
BEING MINDFUL OF THE CONDITIONS UNDER WHICH WE MAY ENTER UPON THE
DELICATE PROCESS OF CONSTITUTIONAL ADJUDICATION. 

THE IMPRESSIVE LESSON OF HISTORY CONFIRMS THE WISDOM OF THE REPEATED
ENUNCIATION, THE VARIOUSLY EXPRESSED ADMONITION, OF SELF-IMPOSED
INHIBITION AGAINST PASSING ON THE VALIDITY OF AN ACT OF CONGRESS
"UNLESS ABSOLUTELY NECESSARY TO A DECISION OF THE CASE."  BURTON V.
UNITED STATES, 196 U.S. 283, 295.  (FN3)  OBSERVANCE OF THIS PRINCIPLE
MAKES FOR THE MINIMUM TENSION WITHIN OUR DEMOCRATIC POLITICAL SYSTEM
WHERE "SCARCELY ANY QUESTION ARISES  ...  WHICH DOES NOT BECOME, SOONER
OR LATER, A SUBJECT OF JUDICIAL DEBATE."  1 DE TOCQUEVILLE, DEMOCRACY
IN AMERICA (4TH AM. ED. 1843), 306. 

THE WISDOM OF REFRAINING FROM AVOIDABLE CONSTITUTIONAL PRONOUNCEMENTS
HAS BEEN MOST VIVIDLY DEMONSTRATED ON THE RARE OCCASIONS WHEN THE
COURT, FORGETTING "THE FALLIBILITY OF THE HUMAN JUDGMENT," (FN4) HAS
DEPARTED FROM ITS OWN PRACTICE.  THE COURT'S FAILURE IN DRED SCOTT V.
SANDFORD, 19 HOW.  393, "TO TAKE THE SMOOTH HANDLE FOR THE SAKE OF
REPOSE" BY DISPOSING OF THE CASE SOLELY UPON "THE OUTSIDE ISSUE" AND
THE EFFECTS OF ITS ATTEMPT "TO SETTLE THE AGITATION" ARE FAMILIAR
HISTORY.  (FN5)  DRED SCOTT DOES NOT STAND ALONE.  THESE EXCEPTIONS
HAVE RIGHTLY BEEN CHARACTERIZED AS AMONG THE COURT'S NOTABLE "SELF
INFLICTED WOUNDS."  CHARLES EVANS HUGHES, THE SUPREME COURT OF THE
UNITED STATES, 50. 

CLEARLY IN THIS CASE IT IS NOT "ABSOLUTELY NECESSARY TO A DECISION,"
BURTON V. UNITED STATES, SUPRA, TO CANVASS THE CONSTITUTIONAL ISSUES. 
THE CASE CAME HERE UNDER THE CRIMINAL APPEALS ACT BECAUSE THE DISTRICT
COURT BLOCKED THE PROSECUTION ON THE GROUND THAT THE INDICTMENT FAILED
TO STATE AN OFFENSE WITHIN SEC. 313 OF THE CORRUPT PRACTICES ACT.  OUR
REVERSAL OF THE DISTRICT JUDGE'S ERRONEOUS CONSTRUCTION CLEARS THE WAY
FOR THE PROSECUTION TO PROCEED. 

REFUSAL TO ANTICIPATE CONSTITUTIONAL QUESTIONS IS PECULIARLY
APPROPRIATE IN THE CIRCUMSTANCES OF THIS CASE.  FIRST OF ALL, THESE
QUESTIONS COME TO US UNILLUMINED BY THE CONSIDERATION OF A SINGLE JUDGE
- WE ARE ASKED TO DECIDE THEM IN THE FIRST INSTANCE.  AGAIN, ONLY AN
ADJUDICATION ON THE MERITS CAN PROVIDE THE CONCRETE FACTUAL SETTING
THAT SHARPENS THE DELIBERATIVE PROCESS ESPECIALLY DEMANDED FOR
CONSTITUTIONAL DECISION.  FINALLY, BY REMANDING THE CASE FOR TRIAL IT
MAY WELL BE THAT THE COURT WILL NOT BE CALLED UPON TO PASS ON THE
QUESTIONS NOW RAISED.  COMPARE UNITED STATES V. PETRILLO, 332 U.S. 1, 9
ET SEQ., WITH THE SUBSEQUENT ADJUDICATION ON THE MERITS IN UNTED STATES
V. PETRILLO, 75 F. SUPP. 176. 

COUNSEL ARE PRONE TO SHAPE LITIGATION, SO FAR AS IT IS WITHIN THEIR
CONTROL, IN ORDER TO SECURE COMPREHENSIVE RULINGS.  THIS IS TRUE BOTH
OF COUNSEL FOR DEFENDANTS AND FOR THE GOVERNMENT.  SUCH DESIRE ON THEIR
PART IS NOT DIFFICULT TO APPRECIATE.  BUT THE COURT HAS ITS
RESPONSIBILITY.  MATTER NOW BURIED UNDER ABSTRACT CONSTITUTIONAL ISSUES
MAY, BY THE ELUCIDATION OF A TRIAL, BE BROUGHT TO THE SURFACE, AND IN
THE OUTCOME CONSTITUTIONAL QUESTIONS MAY DISAPPEAR.  ALLEGATIONS OF THE
INDICTMENT HYPOTHETICALLY FRAMED TO ELICIT A RULING FROM THIS COURT OR
BASED UPON MISUNDERSTANDING OF THE FACTS MAY NOT SURVIVE THE TEST OF
PROOF.  FOR EXAMPLE, WAS THE BROADCAST PAID FOR OUT OF THE GENERAL DUES
OF THE UNION MEMBERSHIP OR MAY THE FUNDS BE FAIRLY SAID TO HAVE BEEN
OBTAINED ON A VOLUNTARY BASIS?  DID THE BROADCAST REACH THE PUBLIC AT
LARGE OR ONLY THOSE AFFILIATED WITH APPELLEE?   DID IT CONSTITUTE
ACTIVE ELECTIONEERING OR SIMPLY STATE THE RECORD OF PARTICULAR
CANDIDATES ON ECONOMIC ISSUES?  DID THE UNION SPONSOR THE BROADCAST
WITH THE INTENT TO AFFECT THE RESULTS OF THE ELECTION?  AS SENATOR TAFT
REPEATEDLY RECOGNIZED IN THE DEBATE ON SEC. 304, PROSECUTIONS UNDER THE
ACT MAY PRESENT DIFFICULT QUESTIONS OF FACT.  SEE SUPRA, PP. 585-587,
N. 1.  WE SUGGEST THE POSSIBILITY OF SUCH QUESTIONS, NOT TO IMPLY
ANSWERS TO PROBLEMS OF STATUTORY CONSTRUCTION, BUT MERELY TO INDICATE
THE COVERT ISSUES THAT MAY BE INVOLVED IN THIS CASE. 

ENOUGH HAS BEEN SAID TO JUSTIFY WITHHOLDING DETERMINATION OF THE MORE
OR LESS ABSTRACT ISSUES OF CONSTITUTIONAL LAW.  BECAUSE THE DISTRICT
COURT'S ERRONEOUS INTERPRETATION OF THE STATUTE LED IT TO STOP THE
PROSECUTION PREMATURELY, ITS JUDGMENT MUST BE REVERSED AND THE CASE
MUST BE REMANDED TO IT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  "MR. BARKLEY.  SUPPOSE A CERTAIN CORPORATION, FOR INSTANCE, THE
CORPORATION THAT MAKES BAYER ASPIRIN, OR JERGENS LOTION, OR ANY OTHER
WELL-ADVERTISED PRODUCT, EMPLOYS A COMMENTATOR TO TALK ABOUT VARIOUS
THINGS, WINDING UP WITH AN ADVERTISEMENT OF THE PRODUCT, AND SUPPOSE
THAT THE RADIO COMMENTATOR FROM DAY TO DAY TAKES ADVANTAGE OF HIS
EMPLOYMENT OR HIS SPONSORSHIP TO MAKE COMMENTS WHICH ARE CALCULATED TO
INFLUENCE THE OPINIONS OF MEN OR WOMEN AS TO POLITICAL CANDIDATES. 
WOULD THE CORPORATION SPONSORING THE PARTICULAR COMMENTATOR BE
VIOLATING THE LAW? 

"MR. TAFT.  I SHOULD HAVE TO KNOW THE EXACT FACTS.  IF, FOR INSTANCE,
APART FROM COMMENTATORS AND THE RADIO, AND TAKING THE CASE OF A PAID
ADVERTISEMENT, SUPPOSE A CORPORATION ADVERTISES ITS PRODUCTS, AND THAT
EVERY DAY FOR 2 WEEKS BEFORE THE ELECTION IT ADVERTISES A CANDIDATE.  I
SHOULD SAY THAT WOULD BE A VIOLATION OF THE LAW.  I WOULD SAY THE SAME
THING PROBABLY WOULD BE TRUE OF A RADIO BROADCAST OF THAT KIND, UNDER
CERTAIN CIRCUMSTANCES, BUT I THINK I SHOULD LIKE TO KNOW THE EXACT
FACTS BEFORE EXPRESSING AN OPINION.    "MR. BARKLEY.  IN THE CASE OF A
COMMENTATOR WHO IS PAID TO ADVERTISE A CERTAIN PRODUCT, AND WHO IN THE
COURSE OF HIS 15 MINUTES ON THE RADIO MAY ALSO SEEK TO INFLUENCE VOTES,
THE SPONSOR MAY SAY, EITHER BEFORE OR AFTER THE BROADCAST, THAT HE IS
NOT RESPONSIBLE FOR WHAT THE COMMENTARY SAYS; YET HE IS PAYING THE
COMMENTATOR FOR HIS BROADCAST.  WOULD THAT STILL BE A VIOLATION OF LAW,
ALTHOUGH THE SPONSOR MIGHT EXCUSE HIMSELF OR ATTEMPT TO EXCUSE HIMSELF
BY SAYING HE WAS NOT RESPONSIBLE FOR THE OPINIONS EXPRESSED BY THE
COMMENTATOR? 

"MR. TAFT.  I THINK THERE ARE ALL DEGREES.  IT WOULD BE FOR A COURT
TO DECIDE.  I THINK AS A MATTER OF FACT, IF THAT HAD HAPPENED UNDER THE
OLD LAW, THERE WOULD HAVE BEEN THE SAME QUESTION. 

"I WANT TO MAKE THE POINT THAT WE ARE NOT RAISING ANY NEW QUESTIONS
HERE.  THOSE SAME QUESTIONS COULD HAVE BEEN RAISED WITH RESPECT TO
CORPORATIONS DURING THE PAST 25 YEARS.  IT IS A QUESTION OF FACT:  WAS
THE CORPORATION USING ITS MONEY TO INFLUENCE A POLITICAL ELECTION? 

     *         *         *         *         * 

"MR. MAGNUSON.  LET US CONSIDER THE TEAMSTERS.  SUPPOSE THEY HAVE A
WEEKLY RADIO PROGRAM, AS, INDEED, THEY HAVE HAD FOR A LONG TIME BACK. 
OR LET US SAY THE AFL HAS SUCH A RADIO PROGRAM.  LET US ASSUME I AM
RUNNING FOR OFFICE AND THEY ASK ME TO BE A GUEST ON THEIR PROGRAM. 
SUPPOSE I TALK ON THE SUBJECT OF LABOR AND DO NOT ADVOCATE MY OWN
CANDIDACY.  NEVERTHELESS I AM ON THAT PROGRAM.  MY NAME IS BEING
ADVERTISED AND I AM BEING HEARD BY MANY THOUSANDS OF PEOPLE.  WOULD
THAT BE AN UNLAWFUL CONTRIBUTION TO MY CANDIDACY? 

"MR. TAFT.  IF A LABOR ORGANIZATION IS USING THE FUNDS PROVIDED BY
ITS MEMBERS THROUGH PAYMENT OF UNION DUES TO PUT SPEAKERS ON THE RADIO
FOR MR. X AGAINST MR. Y, THAT SHOULD BE A VIOLATION OF THE LAW. 

"MR. MAGNUSON.  THEY ARE NOT PAYING ME ANYTHING.  THEY HAVE ASKED ME
TO BE A GUEST. 

"MR. TAFT.  I UNDERSTAND, BUT THEY ARE PAYING FOR THE TIME ON THE
AIR.  OF COURSE, IN EACH CASE THERE IS A QUESTION OF FACT TO BE
DECIDED.  I CANNOT ANSWER VARIOUS HYPOTHESES WITHOUT KNOWING ALL THE
CIRCUMSTANCES.  BUT IN EACH CASE THE QUESTION IS WHETHER OR NOT A UNION
OR A CORPORATION IS MAKING A CONTRIBUTION OR EXPENDITURE OF FUNDS TO
ELECT A AS AGAINST B. LABOR UNIONS ARE SUPPOSED TO KEEP OUT OF POLITICS
IN THE SAME WAY THAT CORPORATIONS ARE SUPPOSED TO KEEP OUT OF
POLITICS."  93 CONG. REC. 6439-6440. 

"MR. TAYLOR  ...  .  TAKE THE MATTER OF A RADIO PROGRAM SPONSORED BY
EITHER A UNION OR A CORPORATION.  I THINK THE AFL OR THE CIO, ONE OR
THE OTHER, HAS A NEWS COMMENTATOR WHO COMMENTS ON THE NEWS.  COULD HE
COMMENT ON POLITICAL CANDIDATES FAVORABLY OR UNFAVORABLY? 

"MR. TAFT.  IF THE GENERAL MOTORS CORP. HAD A MAN SPEAKING ON THE
RADIO EVERY WEEK TO ADVOCATE THE ELECTION OF A REPUBLICAN OR A
DEMOCRATIC PRESIDENTIAL CANDIDATE, THE CORPORATION OUGHT TO BE
PUNISHED, AND IT WOULD BE PUNISHED UNDER THE LAW.  LABOR ORGANIZATIONS
SHOULD BE SUBJECT TO THE SAME RULE. 

"MR. TAYLOR.  THAT IS ALTOGETHER DIFFERENT.  IT IS A MORE SUBTLE
THING.  WHEN A COMMENTATOR IS BROADCASTING THE NEWS EVERY DAY HE CAN DO
A LOT MORE GOOD OR HARM TO A MAN BY COLORING HIS BROADCAST AND
PRESENTING IT IN THE GUISE OF A NEWS COMMENTARY THAN HE COULD OPENLY. 

"MR. TAFT.  THE SENATOR IS RIGHT.  IT IS A QUESTION OF FACT WHICH
WOULD HAVE TO BE RAISED IN EVERY CASE.  IS IT A CONTRIBUTION TO A
CANDIDATE OR IS IT NOT?  POSSIBLY A KNOCK IS A BOOST SOMETIMES.  THAT
ARGUMENT MIGHT WELL BE MADE BY A PERSON WHO WAS TAKING PART IN AN
ELECTION."  93 CONG. REC. 6447. 

FN2  "  ...  IF SUCH AN EXPENDITURE IS PROHIBITED BY 18 U.S.C. 610,
THE STATUTE VIOLATES THE PROVISIONS OF THE CONSTITUTION OF THE UNITED
STATES IN THAT THE STATUTE (I) ABRIDGES FREEDOM OF SPEECH AND OF THE
PRESS AND THE RIGHT PEACEABLY TO ASSEMBLE AND TO PETITION; (II)
ABRDIGES THE RIGHT TO CHOOSE SENATORS AND REPRESENTATIVES GUARANTEED BY
ARTICLE I, SEC. 2 AND THE SEVENTEENTH AMENDMENT; (III) CREATES AN
ARBITRARY AND UNLAWFUL CLASSIFICATION AND DISCRIMINATES AGAINST LABOR
ORGANIZATIONS IN VIOLATION OF THE FIFTH AMENDMENT, AND (IV) IS VAGUE
AND INDEFINITE AND FAILS TO PROVIDE A REASONABLY ASCERTAINABLE STANDARD
OF GUILT IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS."  BRIEF FOR
APPELLEE, PP. 2-3. 

FN3  CASES ARE COLLECTED IN THE OPINION OF MR. JUSTICE BRANDEIS IN
ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 345 ET SEQ. 

FN4  "IT MUST BE EVIDENT TO ANY ONE THAT THE POWER TO DECLARE A
LEGISLATIVE ENACTMENT VOID IS ONE WHICH THE JUDGE, CONSCIOUS OF THE
FALLIBILITY OF THE HUMAN JUDGMENT, WILL SHRINK FROM EXERCISING IN ANY
CASE WHERE HE CAN CONSCIENTIOUSLY AND WITH DUE REGARD TO DUTY AND
OFFICIAL OATH DECLINE THE RESPONSIBILITY."  1 COOLEY, CONSTITUTIONAL
LIMITATIONS (8TH ED.), 332. 

FN5  A LETTER WRITTEN BY MR. JUSTICE CATRON TO PRESIDENT BUCHANAN
SHORTLY BEFORE THE DECISION WAS HANDED DOWN REVEALS AN ATTITUDE HAPPILY
EXCEPTIONAL: 

"WILL YOU DROP MR. JUSTICE GRIER A LINE, SAYING HOW NECESSARY IT IS -
& HOW GOOD THE OPPORTUNITY IS, TO SETTLE THE AGITATION BY AN
AFFIRMATIVE DECISION OF THE SUPREME COURT, THE ONE WAY OR THE OTHER. 
HE OUGHT NOT TO OCCUPY SO DOUBTFUL A GROUND AS THE OUTSIDE ISSUE - THAT
ADMITTING THE CONSTITUTIONALITY OF THE MO. COMP. LINE OF 1820, STILL,
AS NO DOMICILE WAS ACQUIRED BY THE NEGRO AT FT. SNELLING, & HE RETURNED
TO MISSOURI, HE WAS NOT FREE.  HE HAS NO DOUBT ABOUT THE QUESTION ON
THE MAIN CONTEST, BUT HAS BEEN PERSUADED TO TAKE THE SMOOTH HANDLE FOR
THE SAKE OF REPOSE."  10 WORKS OF JAMES BUCHANAN 106. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK JOIN, DISSENTING. 

WE DEAL HERE WITH A PROBLEM THAT IS FUNDAMENTAL TO THE ELECTORAL
PROCESS AND TO THE OPERATION OF OUR DEMOCRATIC SOCIETY.  IT IS WHETHER
A UNION CAN EXPRESS ITS VIEWS ON THE ISSUES OF AN ELECTION AND ON THE
MERITS OF THE CANDIDATES, UNRESTRAINED AND UNFETTERED BY THE CONGRESS. 
THE PRINCIPLE AT STAKE IS NOT PECULIAR TO UNIONS.  IT IS APPLICABLE AS
WELL TO ASSOCIATIONS OF MANUFACTURERS, RETAIL AND WHOSESALE TRADE
GROUPS, CONSUMERS' LEAGUES, FARMERS' UNIONS, RELIGIOUS GROUPS AND EVERY
OTHER ASSOCIATION REPRESENTING A SEGMENT OF AMERICAN LIFE AND TAKING AN
ACTIVE PART IN OUR POLITICAL CAMPAIGNS AND DISCUSSIONS.  IT IS AS
IMPORTANT AN ISSUE AS HAS COME BEFORE THE COURT, FOR IT REACHES THE
VERY VITALS OF OUR SYSTEM OF GOVERNMENT. 

UNDER OUR CONSTITUTION IT IS WE THE PEOPLE WHO ARE SOVEREIGN.  THE
PEOPLE HAVE THE FINAL SAY.  THE LEGISLATORS ARE THEIR SPOKESMEN.  THE
PEOPLE DETERMINE THROUGH THEIR VOTES THE DESTINY OF THE NATION.  IT IS
THEREFORE IMPORTANT - VITALLY IMPORTANT - THAT ALL CHANNELS OF
COMMUNICATION BE OPEN TO THEM DURING EVERY ELECTION, THAT NO POINT OF
VIEW BE RESTRAINED OR BARRED, AND THAT THE PEOPLE HAVE ACCESS TO THE
VIEWS OF EVERY GROUP IN THE COMMUNITY. 

IN UNITED STATES V. C.I.O., 335 U.S. 106, 144, MR. JUSTICE RUTLEDGE
SPOKE OF THE IMPORTANCE OF THE FIRST AMENDMENT RIGHTS - FREEDOM OF
EXPRESSION AND FREEDOM OF ASSEMBLY - TO THE INTEGRITY OF OUR
ELECTIONS.  "THE MOST COMPLETE EXERCISE OF THOSE RIGHTS," HE SAID, "IS
ESSENTIAL TO THE FULL, FAIR AND UNTRAMMELED OPERATION OF THE ELECTORAL
PROCESS.  TO THE EXTENT THEY ARE CURTAILED THE ELECTORATE IS DEPRIVED
OF INFORMATION, KNOWLEDGE AND OPINION VITAL TO ITS FUNCTION." 

WHAT THE COURT DOES TODAY GREATLY IMPAIRS THOSE RIGHTS.  IT SUSTAINS
AN INDICTMENT CHARGING NO MORE THAN THE USE OF UNION FUNDS FOR
BROADCASTING TELEVISION PROGRAMS THAT URGE AND ENDORSE THE SELECTION OF
CERTAIN CANDIDATES FOR THE CONGRESS OF THE UNITED STATES.  THE OPINION
OF THE COURT PLACES THAT ADVOCACY IN THE SETTING OF CORRUPT PRACTICES. 
THE OPINION GENERATES AN ENVIRONMENT OF EVIL-DOING AND POINTS TO THE
OPPRESSIONS AND MISDEEDS THAT HAVE HAUNTED ELECTIONS IN THIS COUNTRY. 

MAKING A SPEECH ENDORSING A CANDIDATE FOR OFFICE DOES NOT, HOWEVER,
DESERVE TO BE IDENTIFIED WITH ANTISOCIAL CONDUCT.  UNTIL TODAY
POLITICAL SPEECH HAS NEVER BEEN CONSIDERED A CRIME.  THE MAKING OF A
POLITICAL SPEECH UP TO NOW HAS ALWAYS BEEN ONE OF THE PREFERRED RIGHTS
PROTECTED BY THE FIRST AMENDMENT.  IT USUALLY COSTS MONEY TO
COMMUNICATE AN IDEA TO A LARGE AUDIENCE.  BUT NO ONE WOULD SERIOUSLY
CONTEND THAT THE EXPENDITURE OF MONEY TO PRINT A NEWSPAPER DEPRIVES THE
PUBLISHER OF FREEDOM OF THE PRESS.  NOR CAN THE FACT THAT IT COSTS
MONEY TO MAKE A SPEECH - WHETHER IT BE HIRING A HALL OR PURCHASING TIME
ON THE AIR - MAKE THE SPEECH ANY THE LESS AN EXERCISE OF FIRST
AMENDMENT RIGHTS.  YET THIS STATUTE, AS CONSTRUED AND APPLIED IN THIS
INDICTMENT, MAKES CRIMINAL ANY "EXPENDITURE" BY A UNION FOR THE PURPOSE
OF EXPRESSING ITS VIEWS ON THE ISSUES OF AN ELECTION AND THE
CANDIDATES.  IT WOULD MAKE NO DIFFERENCE UNDER THIS CONSTRUCTION OF THE
ACT WHETHER THE UNION SPOKESMAN MADE HIS ADDRESS FROM THE PLATFORM OF A
HALL, USED A SOUND TRUCK IN THE STREETS, OR BOUGHT TIME ON RADIO OR
TELEVISION.  IN EACH CASE THE MERE "EXPENDITURE" OF MONEY TO MAKE THE
SPEECH IS AN INDICTABLE OFFENSE.  THE PRINCIPLE APPLIED TODAY WOULD
MAKE EQUALLY CRIMINAL THE USE BY A UNION OF ITS FUNDS TO PRINT
PAMPHLETS FOR GENERAL DISTRIBUTION OR TO DISTRIBUTE POLITICAL
LITERATURE AT LARGE. 

CAN AN ACT SO CONSTRUED BE CONSTITUTIONAL IN VIEW OF THE COMMAND OF
THE FIRST AMENDMENT THAT CONGRESS SHALL MAKE NO LAW THAT ABRIDGES FREE
SPEECH OR FREEDOM OF ASSEMBLY? 

THE COURT SAYS THAT THE ANSWER ON THE CONSTITUTIONAL ISSUE MUST AWAIT
THE DEVELOPMENT OF THE FACTS AT THE TRIAL. 

IT ASKS, "DID THE BROADCAST REACH THE PUBLIC AT LARGE OR ONLY THOSE
AFFILIATED WITH APPELLEE?"  BUT THE SIZE OF THE AUDIENCE HAS HERETOFORE
BEEN DEEMED WHOLLY IRRELEVANT TO FIRST AMENDMENT ISSUES.   ONE HAS A
RIGHT TO FREEDOM OF SPEECH WHETHER HE TALKS TO ONE PERSON OR TO ONE
THOUSAND.  ONE HAS A RIGHT TO FREEDOM OF SPEECH NOT ONLY WHEN HE TALKS
TO HIS FRIENDS BUT ALSO WHEN HE TALKS TO THE PUBLIC.  IT IS STARTLING
TO LEARN THAT A UNION SPOKESMAN OR THE SPOKESMAN FOR A CORPORATE
INTEREST HAS FEWER CONSTITUTIONAL RIGHTS WHEN HE TALKS TO THE PUBLIC
THAN WHEN HE TALKS TO MEMBERS OF HIS GROUP. 

THE COURT ASKS WHETHER THE BROADCAST CONSTITUTED "ACTIVE
ELECTIONEERING" OR SIMPLY STATED "THE RECORD OF PARTICULAR CANDIDATES
ON ECONOMIC ISSUES."  WHAT POSSIBLE DIFFERENCE CAN IT MAKE UNDER THE
FIRST AMENDMENT WHETHER IT WAS ONE OR THE OTHER?  THE FIRST AMENDMENT
COVERS THE ENTIRE SPECTRUM.  IT PROTECTS THE IMPASSIONED PLEA OF THE
ORATOR AS MUCH AS THE QUIET PUBLICATION OF THE TABULATIONS OF THE
STATISTICIAN OR ECONOMIST.  IF THERE IS AN INNUENDO THAT "ACTIVE
ELECTIONEERING" BY UNION SPOKESMEN IS NOT COVERED BY THE FIRST
AMENDMENT, THE OPINION MAKES A SHARP BREAK WITH OUR POLITICAL AND
CONSTITUTIONAL HERITAGE. 

THE COURT ASKS, "DID THE UNION SPONSOR THE BROADCAST WITH THE INTENT
TO AFFECT THE RESULTS OF THE ELECTION?"  THE PURPOSE OF SPEECH IS NOT
ONLY TO INFORM BUT TO INCITE TO ACTION.  AS MR. JUSTICE HOLMES SAID IN
HIS DISSENT IN GITLOW V. NEW YORK, 268 U.S. 652, 673, "EVERY IDEA IS AN
INCITEMENT.  IT OFFERS ITSELF FOR BELIEF AND IF BELIEVED IT IS ACTED ON
UNLESS SOME OTHER BELIEF OUTWEIGHS IT OR SOME FAILURE OF ENERGY STIFLES
THE MOVEMENT AT ITS BIRTH."  TO DRAW A CONSTITUTIONAL LINE BETWEEN
INFORMING THE PEOPLE AND INCITING OR PERSUADING THEM AND TO SUGGEST
THAT ONE IS PROTECTED AND THE OTHER NOT BY THE FIRST AMENDMENT IS TO
GIVE CONSTITUTIONAL DIGNITY TO AN IRRELEVANCE.  ANY POLITICAL SPEAKER
WORTH HIS SALT INTENDS TO SWAY VOTERS.  HIS PURPOSE TO DO SO CANNOT
POSSIBLY ROB HIM OF HIS FIRST AMENDMENT RIGHTS, UNLESS WE ARE TO REDUCE
THAT GREAT GUARANTEE OF FREEDOM TO THE PROTECTION OF MEANINGLESS
MOUTHINGS OF INEFFECTIVE SPEAKERS. 

FINALLY, THE COURT ASKS WHETHER THE BROADCAST WAS "PAID FOR OUT OF
THE GENERAL DUES OF THE UNION MEMBERSHIP OR MAY THE FUNDS BE FAIRLY
SAID TO HAVE BEEN OBTAINED ON A VOLUNTARY BASIS."  BEHIND THIS QUESTION
IS THE IDEA THAT THERE MAY BE A MINORITY OF UNION MEMBERS WHO ARE OF A
DIFFERENT POLITICAL SCHOOL THAN THEIR LEADERS AND WHO OBJECT TO THE USE
OF THEIR UNION DUES TO ESPOUSE ONE POLITICAL VIEW.  THIS IS A QUESTION
THAT CONCERNS THE INTERNAL MANAGEMENT OF UNION AFFAIRS.  TO DATE,
UNIONS HAVE OPERATED UNDER A RULE OF THE MAJORITY.  PERHAPS MINORITY
RIGHTS NEED PROTECTION.  BUT THIS WAY OF DOING IT IS, INDEED, BURNING
DOWN THE HOUSE TO ROAST A PIG.  ALL UNION EXPENDITURES FOR POLITICAL
DISCOURSE ARE BANNED BECAUSE A MINORITY MIGHT OBJECT. 

WHEN THE EXERCISE OF FIRST AMENDMENT RIGHTS IS TANGLED WITH CONDUCT
WHICH GOVERNMENT MAY REGULATE, WE REFUSE TO ALLOW THE FIRST AMENDMENT
RIGHTS TO BE SACRIFICED MERELY BECAUSE SOME EVIL MAY RESULT.  OUR
INSISTENCE IS THAT THE REGULATORY MEASURE BE "NARROWLY DRAWN" TO MEET
THE EVIL THAT THE GOVERNMENT CAN CONTROL.  CANTWELL V. CONNECTICUT, 310
U.S. 296, 311.  OR AS THE COURT SAID IN DE JONGE V. OREGON, 299 U.S.
353, 364-365, WHEN SPEAKING OF FIRST AMENDMENT RIGHTS, "  ...  THE
LEGISLATIVE INTERVENTION CAN FIND CONSTITUTIONAL JUSTIFICATION ONLY BY
DEALING WITH THE ABUSE.  THE RIGHTS THEMSELVES MUST NOT BE CURTAILED. 

IF MINORITIES NEED PROTECTION AGAINST THE USE OF UNION FUNDS FOR
POLITICAL SPEECH-MAKING, THERE ARE WAYS OF REACHING THAT END WITHOUT
DENYING THE MAJORITY THEIR FIRST AMENDMENT RIGHTS.  (FN1) 

FIRST AMENDMENT RIGHTS ARE NOT MERELY CURTAILED BY THE CONSTRUCTION
OF THE ACT WHICH THE COURT ADOPTS.  TODAY'S RULING ABOLSIHES FIRST
AMENDMENT RIGHTS ON A WHOLESALE BASIS.  PROTECTION OF MINORITY GROUPS,
IF ANY, CAN BE NO EXCUSE.  THE ACT IS NOT "NARROWLY DRAWN" TO MEET THAT
ABUSE. 

SOME MAY THINK THAT ONE GROUP OR ANOTHER SHOULD NOT EXPRESS ITS VIEWS
IN AN ELECTION BECAUSE IT IS TOO POWERFUL, BECAUSE IT ADVOCATES
UNPOPULAR IDEAS, OR BECAUSE IT HAS A RECORD OF LAWLESS ACTION.  BUT
THESE ARE NOT JUSTIFICATIONS FOR WITHHOLDING FIRST AMENDMENT RIGHTS
FROM ANY GROUP - LABOR OR CORPORATE.  CF. UNITED STATES V. RUMELY, 345
U.S. 41.  FIRST AMENDMENT RIGHTS ARE PART OF THE HERITAGE OF ALL
PERSONS AND GROUPS IN THIS COUNTRY.  THEY ARE NOT TO BE DISPENSED OR
WITHHELD MERELY BECAUSE WE OR THE CONGRESS THINKS THE PERSON OR GROUP
IS WORTHY OR UNWORTHY.    THESE CONSTITUTIONAL QUESTIONS ARE SO GRAVE
THAT THE LEAST WE SHOULD DO IS TO CONSTRUE THIS ACT, AS WE HAVE IN
COMPARABLE SITUATIONS (UNITED STATES V. C.I.O., SUPRA; UNITED STATES V.
RUMELY, 345 U.S. 41; UNITED STATES V. HARRISS, 347 U.S. 612), TO LIMIT
THE WORD "EXPENDITURE" TO ACTIVITY THAT DOES NOT INVOLVE FIRST
AMENDMENT RIGHTS.  (FN2) 

THE ACT, AS CONSTRUED AND APPLIED, IS A BROADSIDE ASSAULT ON THE
FREEDOM OF POLITICAL EXPRESSION GUARANTEED BY THE FIRST AMENDMENT.  IT
CANNOT POSSIBLY BE SAVED BY ANY OF THE FACTS CONJURED UP BY THE COURT. 
THE ANSWERS TO THE QUESTIONS RESERVED ARE QUITE IRRELEVANT TO THE
CONSTITUTIONAL QUESTIONS TENDERED UNDER THE FIRST AMENDMENT. 

I WOULD AFFIRM THE JUDGMENT DISMISSING THE INDICTMENT. 

FN1  THERE ARE ALTERNATIVE MEASURES APPROPRIATE TO CURE THIS EVIL
WHICH CONGRESS HAS SEEN IN THE EXPENDITURE OF UNION FUNDS FOR POLITICAL
PURPOSES.  THE PROTECTION OF UNION MEMBERS FROM THE USE OF THEIR FUNDS
IN SUPPORTING A CAUSE WITH WHICH THEY DO NOT SYMPATHIZE MAY BE CURED BY
PERMITTING THE MINORITY TO WITHDRAW THEIR FUNDS FROM THAT ACTIVITY. 
THE ENGLISH HAVE LONG REQUIRED LABOR UNIONS TO PERMIT A DISSENTING
UNION MEMBER TO REFUSE TO CONTRIBUTE FUNDS FOR POLITICAL PURPOSES. 
TRADE UNION ACT, 1913, 2 & 3 GEO. V, C. 30; TRADE DISPUTES AND TRADE
UNIONS ACT, 1927, 17 & 18 GEO. V, C. 22; TRADE DISPUTES AND TRADE
UNIONS ACT, 1946, 9 & 10 GEO. VI, C. 52. 

FN2  IF CONGRESS IS OF THE OPINION THAT LARGE CONTRIBUTIONS BY LABOR
UNIONS TO CANDIDATES FOR OFFICE AND TO POLITICAL PARTIES HAVE HAD AN
UNDUE INFLUENCE UPON THE CONDUCT OF ELECTIONS, IT CAN PROHIBIT SUCH
CONTRIBUTIONS.  AND, IN EXPRESSING THEIR VIEWS ON THE ISSUES AND
CANDIDATES, LABOR UNIONS CAN BE REQUIRED TO ACKNOWLEDGE THEIR
AUTHORSHIP AND SUPPORT OF THOSE EXPRESSIONS.  UNDUE INFLUENCE, HOWEVER,
CANNOT CONSTITUTIONALLY FORM THE BASIS FOR MAKING IT UNLAWFUL FOR ANY
SEGMENT OF OUR SOCIETY TO EXPRESS ITS VIEWS ON THE ISSUES OF A
POLITICAL CAMPAIGN. 
..END :













CEBALLOS V. SHAUGHNESSY 352 U.S. 599 


NO. 71.  ARGUED JANUARY 16-17, 1957 - DECIDED MARCH 11, 1957 - 229 F.2D
592, AFFIRMED. 


1.  IN A SUIT BY AN ALIEN IN A FEDERAL DISTRICT COURT AGAINST A
DISTRICT DIRECTOR OF IMMIGRATION FOR (1) A DECLARATORY JUDGMENT THAT HE
IS ELIGIBLE FOR SUSPENSION OF DEPORTATION UNDER SEC. 19(C) OF THE
IMMIGRATION ACT OF 1917, AS AMENDED, AND (2) TO RESTRAIN THE DISTRICT
DIRECTOR FROM TAKING HIM INTO CUSTODY FOR DEPORTATION, NEITHER THE
ATTORNEY GENERAL NOR THE COMMISSIONER OF IMMIGRATION IS A NECESSARY
PARTY.  SHAUGHNESSY V. PEDREIRO, 349 U.S. 48.  PP. 603-604. 

2.  AN ALIEN WAS ADMITTED TO THE UNITED STATES DURING WORLD WAR II
FOR PERMANENT RESIDENCE.  WHILE HIS COUNTRY WAS STILL A NEUTRAL, HE
APPLIED TO A LOCAL SELECTIVE SERVICE BOARD FOR EXEMPTION FROM MILITARY
SERVICE AS A NEUTRAL ALIEN.  THE BOARD TOOK NO ACTION ON THAT
APPLICATION.  AFTER HIS COUNTRY HAD BECOME A COBELLIGERENT WITH THE
UNITED STATES, THE LOCAL BOARD CLASSIFIED THE ALIEN AS AVAILABLE FOR
MILITARY SERVICE; HE REPORTED FOR A PHYSICAL EXAMINATION; BUT HE FAILED
TO PASS AND WAS RECLASSIFIED AS PHYSICALLY DEFECTIVE.  HELD:  BY HIS
APPLICATION FOR EXEMPTION AS A NEUTRAL ALIEN, HE WAS DEBARRED FROM
CITIZENSHIP UNDER SEC. 3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT
OF 1940; AND, THEREFORE, HE IS NOT NOW ELIGIBLE FOR A SUSPENSION OF
DEPORTATION UNDER SEC. 19(C) OF THE IMMIGRATION ACT OF 1917, AS
AMENDED.  PP. 600-606. 

(A)  THE ALIEN'S VOLUNTARY ACT OF EXECUTING, FILING, AND ALLOWING TO
REMAIN ON FILE, A LEGALLY SUFFICIENT APPLICATION FOR EXEMPTION FROM
MILITARY SERVICE AS A NEUTRAL ALIEN, EFFECTED HIS DEBARMENT FROM
CITIZENSHIP UNDER SEC. 3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT
OF 1940 - EVEN THOUGH THE LOCAL BOARD NEVER TOOK ANY ACTION ON HIS
APPLICATION.  PP. 604-605. 

(B)  SECTION 315 OF THE IMMIGRATION AND NATIONALITY ACT OF 1952,
WHICH MAKES AN ALIEN PERMANENTLY INELIGIBLE FOR CITIZENSHIP ONLY WHEN
HE HAS BOTH APPLIED FOR AND RECEIVED EXEMPTION FROM MILITARY SERVICE OR
TRAINING, IS NOT APPLICABLE TO THIS CASE, BECAUSE THIS ALIEN'S
APPLICATION FOR SUSPENSION OF DEPORTATION WAS FILED BEFORE ENACTMENT OF
THAT ACT.  PP. 605-606. 

CEBALLOS ( Y ARBOLEDA) V. SHAUGHNESSY, DISTRICT DIRECTOR, IMMIGRATION
AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS DECLARATORY JUDGMENT ACTION WAS BROUGHT BY PETITIONER, IN MARCH
1955 IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, TO
OBTAIN A JUDGMENT AGAINST THE DISTRICT DIRECTOR OF IMMIGRATION
DECLARING THAT PETITIONER WAS ELIGIBLE FOR SUSPENSION OF DEPORTATION
AND RESTRAINING THE DIRECTOR FROM TAKING HIM INTO CUSTODY FOR
DEPORTATION.  (FN1)  THE DISTRICT COURT DISMISSED THE COMPLAINT,
WITHOUT REACHING THE MERITS, UPON THE PROCEDURAL GROUND "THAT THE
ATTORNEY GENERAL OF THE UNITED STATES AND/OR THE COMMISSIONER OF
IMMIGRATION ARE INDISPENSABLE PARTIES TO THE INSTANT ACTION."  (FN2)
THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED, NOT ONLY FOR THE
REASON GIVEN BY THE DISTRICT COURT, BUT ALSO UPON THE GROUND THAT,
BECAUSE THE PETITIONER IS "AN ALIEN WHO 'HAS MADE APPLICATION' TO BE
RELIEVED FROM MILITARY SERVICE," HE IS DEBARRED FROM CITIZENSHIP AS A
MATTER OF LAW AND "HENCE IS NOT ELIGIBLE FOR AN ORDER SUSPENDING
DEPORTATION."  (FN3)  THIS COURT GRANTED CERTIORARI.  (FN4) 

DEPORTATION PROCEEDINGS HAD BEEN INSTITUTED BECAUSE PETITIONER HAD
ENTERED THE UNITED STATES ON APRIL 2, 1951, ON A TEMPORARY VISA AND
REMAINED BEYOND THE PERIOD FOR WHICH HE WAS ADMITTED.  PETITIONER WAS
FOUND DEPORTABLE BUT WAS GIVEN PERMISSION TO DEPART VOLUNTARILY, IN
LIEU OF DEPORTATION.  PETITIONER'S TIMELY APPLICATION FOR SUSPENSION OF
DEPORTATION UNDER SEC. 19(C) OF THE IMMIGRATION ACT OF 1917, AS
AMENDED, (FN5) WAS DENIED BY THE IMMIGRATION AND NATURALIZATION SERVICE
BECAUSE IT FOUND THAT PETITIONER DID NOT SATISFY A PREREQUISITE FOR THE
APPLICATION OF THAT SECTION - ELIGIBILITY FOR NATURALIZATION.  HIS
INELIGIBILITY WAS BASED ON A FINDING THAT IN AUGUST 1943 PETITIONER, AS
A CITIZEN AND SUBJECT OF COLOMBIA, THEN A WORLD WAR II NEUTRAL, APPLIED
UNDER SEC. 3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS
AMENDED, FOR RELIEF FROM SERVICE WITH THE UNITED STATES ARMED FORCES. 
THEREAFTER BE DEBARRED FROM BECOMING A CITIZEN OF THE UNITED STATES." 
(FN6) 

THE PETITIONER WAS ADMITTED TO THE UNITED STATES FOR PERMANENT
RESIDENCE IN FEBRUARY 1942, DURING WORLD WAR II.  ON JUNE 16, 1943, HE
EXECUTED SELECTIVE SERVICE SYSTEM FORM DSS 304, "ALIEN'S PERSONAL
HISTORY AND STATEMENT," WHICH GAVE THE ALIEN A CHOICE OF INSERTING "DO"
OR "DO NOT" IN THE STATEMENT:  "I  ...  OBJECT TO SERVICE IN THE LAND
OR NAVAL FORCES OF THE UNITED STATES."  THE PETITIONER INSERTED THE
WORD "DO."  THE FORM CONTAINED THIS NOTICE: 

"  ...  IF YOU ARE A CITIZEN OR SUBJECT OF A NEUTRAL COUNTRY, AND YOU
DO NOT WISH TO SERVE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES,
YOU MAY APPLY TO YOUR LOCAL BOARD FOR APPLICATION BY ALIEN FOR RELIEF
FROM MILITARY SERVICE (FORM 301) WHICH, WHEN EXECUTED BY YOU AND FILED
WITH THE LOCAL BOARD, WILL RELIEVE YOU FROM THE OBLIGATION TO SERVE IN
THE LAND OR NAVAL FORCES OF THE UNITED STATES, BUT WILL ALSO DEBAR YOU
FROM THEREAFTER BECOMING A CITIZEN OF THE UNITED STATES."  (FN7) 

ON AUGUST 26, 1943, THE PETITIONER EXECUTED FORM DSS 301,
"APPLICATION BY ALIEN FOR RELIEF FROM MILITARY SERVICE."  THE FORM
CONTAINED THE FOLLOWING PARAGRAPH: 

"I DO HEREBY MAKE APPLICATION TO BE RELIEVED FROM LIABILITY FOR
TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES,
UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, IN
ACCORDANCE WITH THE ACT OF CONGRESS, APPROVED DECEMBER 20, 1941.  I
UNDERSTAND THAT THE MAKING OF THIS APPLICATION TO BE RELIEVED FROM SUCH
LIABILITY WILL DEBAR ME FROM BECOMING A CITIZEN OF THE UNITED STATES
...  ."  (FN8) 

SELECTIVE SERVICE REGULATIONS REQUIRED THE LOCAL BOARD TO FOLLOW
PRESCRIBED FORMALITIES TO PLACE A NEUTRAL APPLYING FOR RELIEF FROM
SERVICE IN CLASS IV-C AND TO NOTIFY THE ALIEN OF THE CLASSIFICATION. 
(FN9)  THE BOARD DID NOT COMPLY WITH THESE REGULATIONS IN PETITIONER'S
CASE.  ITS FIRST FORMAL ACTION WAS TAKEN AFTER THE SELECTIVE SERVICE
SYSTEM NOTIFIED THE BOARD, ON DECEMBER 20, 1943, THAT COLOMBIA, ON
NOVEMBER 26, 1943, HAD CHANGED ITS NEUTRAL STATUS TO THAT OF A
COBELLIGERENT WITH THE UNITED STATES.  ON JANUARY 27, 1944, FIVE MONTHS
AFTER THE PETITIONER FILED THE FORM DSS 301, THE BOARD NOTIFIED THE
PETITIONER THAT HE WAS CLASSIFIED I-A, AVAILABLE FOR MILITARY SERVICE,
AND ORDERED HIM TO REPORT FOR PREINDUCTION PHYSICAL EXAMINATION.  HE
REPORTED AS ORDERED, BUT FAILED TO PASS THE PHYSICAL EXAMINATION AND,
ON MARCH 2, 1944, WAS RECLASSIFIED IV-F, PHYSICALLY DEFECTIVE. 

THE PETITIONER ARGUES THAT NEITHER THE ATTORNEY GENERAL NOR THE
COMMISSIONER OF IMMIGRATION IS A NECESSARY PARTY TO THIS ACTION.  THE
RESPONDENT OFFERS NO ARGUMENT IN OPPOSITION.  WE HOLD THAT NEITHER THE
ATTORNEY GENERAL NOR THE COMMISSIONER IS A NECESSARY PARTY.  THIS COURT
IN SHAUGHNESSY V. PEDREIRO, 349 U.S. 48, HELD THAT DETERMINATION OF THE
QUESTION OF INDISPENSABILITY OF PARTIES IS DEPENDENT, NOT ON THE NATURE
OF THE DECISION ATTACKED, BUT ON THE ABILITY AND AUTHORITY OF THE
DEFENDANT BEFORE THE COURT TO EFFECTUATE THE RELIEF WHICH THE ALIEN
SEEKS.  IN THIS CASE THE PETITIONER ASKS TO HAVE THE ORDER OF
DEPORTATION SUSPENDED AND TO RESTRAIN THE DISTRICT DIRECTOR FROM
DEPORTING HIM.  BECAUSE THE DISTRICT DIRECTOR IS THE OFFICIAL WHO WOULD
EXECUTE THE DEPORTATION, HE IS A SUFFICIENT PARTY.  IT IS NOT A BASIS
FOR DISTINCTION OF PEDREIRO THAT SUSPENSION OF DEPORTATION, RATHER THAN
DEPORTATION ITSELF, IS INVOLVED IN THIS ACTION.  (FN10) 

THE PETITIONER'S ARGUMENT ON THE MERITS CHALLENGES THE HOLDING OF THE
COURT OF APPEALS THAT THE EXECUTION AND FILING OF FORM DSS 301 HAD THE
EFFECT AS A MATTER OF LAW OF DEBARRING HIM FROM BECOMING A CITIZEN OF
THE UNITED STATES.  HE CONTENDS THAT DEBARMENT COULD RESULT ONLY IF THE
LOCAL BOARD AFFIRMATIVELY GRANTED THE RELIEF APPLIED FOR BY CLASSIFYING
HIM IV-C ON ITS RECORDS AND GIVING HIM NOTICE OF ITS ACTION.  WE HOLD
THAT THE PETITIONER'S VOLUNTARY ACT OF EXECUTING AND FILING, AND
ALLOWING TO REMAIN ON FILE, THE LEGALLY SUFFICIENT APPLICATION FORM DSS
301 EFFECTED HIS DEBARMENT FROM CITIZENSHIP UNDER SEC. 3(A).  (FN11)
THE EXPLICIT TERMS OF THE SECTION DEBAR THE NEUTRAL ALIEN "WHO MAKES
SUCH APPLICATION" FOR IMMUNITY FROM MILITARY SERVICE. 

LEGISLATIVE HISTORY SHOWS THIS TO BE THE EFFECT CONTEMPLATED BY
CONGRESS.  (FN12)  THIS SAME CONSTRUCTION HAS BEEN ADOPTED IN THE FEW
COURT DECISIONS WHICH REFER TO THE SECTION, (FN13) AND ADMINISTRATIVE
CONSTRUCTION HAS CONSISTENTLY GIVEN THE SECTION THIS MEANING.  (FN14)
THE NEUTRAL ALIEN IN THIS COUNTRY DURING THE WAR WAS AT LIBERTY TO
REFUSE TO BEAR ARMS TO HELP US WIN THE STRUGGLE, BUT THE PRICE HE PAID
FOR HIS UNWILLINGNESS WAS PERMANENT DEBARMENT FROM UNITED STATES
CITIZENSHIP. 

THE PETITIONER ARGUES THAT IN ANY EVENT SEC. 315 OF THE IMMIGRATION
AND NATIONALITY ACT OF 1952, (FN15) AND NOT SEC. 3(A) OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, GOVERNS THIS CASE.  SECTION 315 OF
THE 1952 ACT ENACTS A TWO-PRONGED REQUIREMENT FOR THE DETERMINATION OF
PERMANENT INELIGIBILITY FOR CITIZENSHIP:  THE ALIEN MUST BE ONE "WHO
APPLIES OR HAS APPLIED FOR EXEMPTION," AND ALSO ONE WHO "IS OR WAS
RELIEVED OR DISCHARGED FROM SUCH TRAINING OR SERVICE ON SUCH GROUND." 
THAT SECTION HAS NO APPLICATION HERE.  THE 1952 LAW HAD NOT BEEN
ENACTED WHEN THE PETITIONER APPLIED FOR RELIEF FROM DEPORTATION IN 1951
(FN16) AND BY ITS TERMS IS EXPRESSLY MADE INAPPLICABLE TO PROCEEDINGS
FOR SUSPENSION OF DEPORTATION UNDER SEC. 19 OF THE IMMIGRATION ACT OF
1917 PENDING, AS HERE, ON THE EFFECTIVE DATE OF THE 1952 LAW.  (FN17)
AFFIRMED. 

FN1  THE ACTION WAS INSTITUTED PURSUANT TO SEC. 10 OF THE
ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 243, 5 U.S.C. SEC. 1009, AND THE
GENERAL JURISDICTIONAL PROVISION OF THE IMMIGRATION AND NATIONALITY ACT
OF 1952, 66 STAT. 230, U.S.C. SEC. 1329. 

FN2  130 F. SUPP. 30, 31. 

FN3  229 F.2D 592, 593. 

FN4  351 U.S. 981. 

FN5  SECTION 19(C) OF THE IMMIGRATION ACT OF 1917, AS AMENDED,
PROVIDED IN PERTINENT PART: 

"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 (1) PERMIT SUCH ALIEN TO
DEPART THE UNITED STATES TO ANY COUNTRY OF HIS CHOICE AT HIS OWN
EXPENSE, IN LIEU OF DEPORTATION; OR (2) SUSPEND DEPORTATION OF SUCH
ALIEN IF HE IS NOT INELIGIBLE FOR NATURALIZATION ...  IF HE FINDS (A)
THAT SUCH DEPORTATION WOULD RESULT IN SERIOUS ECONOMIC DETRIMENT TO A
CITIZEN ...  WHO IS THE SPOUSE  ...  OR MINOR CHILD OF SUCH DEPORTABLE
ALIEN  ...  ."  39 STAT. 889, AS AMENDED, 54 STAT. 671, 62 STAT. 1206,
8 U.S.C. (1946 ED., SUPP. V) SEC. 155. 

FN6  SECTION 3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940,
AS AMENDED, PROVIDED IN PERTINENT PART: 

"EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, EVERY MALE CITIZEN OF THE
UNITED STATES, AND EVERY OTHER MALE PERSON RESIDING IN THE UNITED
STATES, WHO IS BETWEEN THE AGES OF EIGHTEEN AND FORTY-FIVE ...  SHALL
BE LIABLE FOR TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF THE
UNITED STATES: PROVIDED, THAT ANY CITIZEN OR SUBJECT OF A NEUTRAL
COUNTRY SHALL BE RELIEVED FROM LIABILITY FOR TRAINING AND SERVICE UNDER
THIS ACT IF, PRIOR TO HIS INDUCTION INTO THE LAND OR NAVAL FORCES, HE
HAS MADE APPLICATION TO BE RELIEVED FROM SUCH LIABILITY IN THE MANNER
PRESCRIBED BY AND IN ACCORDANCE WITH RULES AND REGULATIONS PRESCRIBED
BY THE PRESIDENT, BUT ANY PERSON WHO MAKES SUCH APPLICATION SHALL
THEREAFTER BE DEBARRED FROM BECOMING A CITIZEN OF THE UNITED STATES
...  ."  54 STAT. 885, AS AMENDED, 55 STAT. 845, 56 STAT. 1019, 50
U.S.C. APP. (1940 ED., SUPP. II) SEC. 303(A). 

FN7  THIS FORM WAS AUTHORIZED BY SELECTIVE SERVICE SYSTEM ORDER NO.
75, 7 FED. REG. 3424. 

FN8  THIS FORM WAS AUTHORIZED BY SELECTIVE SERVICE SYSTEM ORDER NO.
54, 7 FED. REG. 1104. 

FN9  32 CFR, 1943 CUM. SUPP., SEC. 622.43(B); 32 CFR, 1943 CUM.
SUPP., SEC. 623.1; 32 CFR, 1943 CUM. SUPP., SEC. 623.61. 

FN10  THE COURT OF APPEALS MADE THAT DISTINCTION AND HELD THAT NOT
PEDREIRO BUT ITS DECISION IN DE PINHO VAZ V. SHAUGHNESSY, 208 F.2D 70,
CONTROLLED.  229 F.2D, AT 593. 

FN11  THE PETITIONER'S CLAIM THAT HE EXECUTED THE APPLICATION IN THE
BELIEF THAT HE WAS REQUIRED TO DO SO TO OBTAIN ASSIGNMENT TO A LATIN
AMERICAN CONTINGENT OF THE UNITED STATES ARMY WAS REJECTED, AFTER
HEARING, BY THE IMMIGRATION AND NATURALIZATION SERVICE.  IN FACT, THE
BOARD OF IMMIGRATION APPEALS FOUND THAT PETITIONER "FULLY UNDERSTOOD
THE LEGAL CONSEQUENCES OF HIS ACTION AND THAT HE WAS NOT DULY
INFLUENCED BY OTHER CONSIDERATIONS."  CF. MOSER V. UNITED STATES, 341
U.S. 41. 

FN12  THIS APPEARS IN BOTH THE HOUSE AND SENATE REPORTS.  THE HOUSE
REPORT STATES: 

"  ...  IN THE CASE OF CITIZENS OR SUBJECTS OF ANY NEUTRAL COUNTRY,
SPECIAL PROVISION IS MADE TO ENABLE THEM, UPON APPLICATION, TO BE
RELIEVED FROM THE LIABILITY FOR SERVICE, BUT THE MAKING OF SUCH
APPLICATION WILL DEBAR THEM FROM BECOMING CITIZENS OF THE UNITED STATES
...  ."  H.R. REP. NO. 1508, 77TH CONG., 1ST SESS. 4. 

THE SENATE REPORT STATES: 

"  ...  UNDER THE BILL REPORTED BY THE COMMITTEE, ALIENS WOULD BE
LIABLE WHETHER OR NOT THEY HAD DECLARED THEIR INTENTION TO BECOME
CITIZENS.  HOWEVER, ALIENS WHO ARE CITIZENS OR SUBJECTS OF A NEUTRAL
COUNTRY WOULD BE RELIEVED OF LIABILITY UPON MAKING APPLICATION IN THE
MANNER PRESCRIBED BY THE PRESIDENT, BUT THE MAKING OF SUCH APPLICATION
WILL DEBAR THEM FROM EVER BECOMING CITIZENS OF THE UNITED STATES  ...
."  S. REP. NO. 915, 77TH CONG., 1ST SESS. 2. 

FN13  MANNERFRID V. UNITED STATES, 200 F.2D 730; NAVARRO V. LANDON,
108 F. SUPP. 922; SEE MACHADO V. MCGRATH, 90 U.S. APP. D.C. 70, 74, 193
F.2D 706, 710.  SEE MCGRATH V. KRISTENSEN, 340 U.S. 162, 172:  "BY THE
TERMS OF THE STATUTE, THAT BAR ONLY COMES INTO EXISTENCE WHEN AN ALIEN
RESIDENT LIABLE FOR SERVICE ASKS TO BE RELIEVED."  SEE MOSER V. UNITED
STATES, 341 U.S. 41, 45:  SECTION 3(A) "IMPOSED THE CONDITION THAT
NEUTRAL ALIENS RESIDING HERE WHO CLAIMED SUCH IMMUNITY WOULD BE
DEBARRED FROM CITIZENSHIP." 

FN14  SEE QUOTATIONS FROM FORMS DSS 304 AND DSS 301 IN TEXT.  AND SEE
SELECTIVE SERVICE REGULATIONS, SEC. 622.43, EFFECTIVE MARCH 16, 1942, 7
FED. REG. 2087.  SECTION 622.43, AS REVISED, EFFECTIVE OCTOBER 1, 1943,
8 FED. REG. 13672, READ:  "  ...  (A) IN CLASS IV-C SHALL BE PLACED ANY
REGISTRANT:  ...  (2) WHO IS AN ALIEN AND WHO IS A CITIZEN OR SUBJECT
OF A NEUTRAL COUNTRY  ...  AND WHO  ...  FILES WITH HIS LOCAL BOARD AN
APPLICATION BY ALIEN FOR RELIEF FROM MILITARY SERVICE (FROM 301)  ...
." 

FN15  THE IMMIGRATION AND NATIONALITY ACT OF 1952, SEC. 315,
PROVIDES: 

"(A)  NOTWITHSTANDING THE PROVISIONS OF SECTION 405(B), ANY ALIEN WHO
APPLIES OR HAS APPLIED FOR EXEMPTION OR DISCHARGE FROM TRAINING OR
SERVICE IN THE ARMED FORCES OR IN THE NATIONAL SECURITY TRAINING CORPS
OF THE UNITED STATES ON THE GROUND THAT HE IS AN ALIEN, AND IS OR WAS
RELIEVED OR DISCHARGED FROM SUCH TRAINING OR SERVICE ON SUCH GROUND,
SHALL BE PERMANENTLY INELIGIBLE TO BECOME A CITIZEN OF THE UNITED
STATES.    "(B)  THE RECORDS OF THE SELECTIVE SERVICE SYSTEM OR OF THE
NATIONAL MILITARY ESTABLISHMENT SHALL BE CONCLUSIVE AS TO WHETHER AN
ALIEN WAS RELIEVED OR DISCHARGED FROM SUCH LIABILITY FOR TRAINING OR
SERVICE BECAUSE HE WAS AN ALIEN."  66 STAT. 242, 8 U.S.C. SEC.  1426. 

FN16  THE 1952 LAW BECAME EFFECTIVE IN DECEMBER 1952. 

FN17  THE IMMIGRATION AND NATIONALITY ACT OF 1952, SEC. 405(A),
PROVIDES: 

"NOTHING CONTAINED IN THIS ACT, UNLESS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, SHALL BE CONSTRUED  ...  TO AFFECT  ...  PROCEEDINGS
...  BROUGHT,  ...  OR EXISTING, AT THE TIME THIS ACT SHALL TAKE
EFFECT; BUT AS TO ALL SUCH  ...  PROCEEDINGS,  ...  THE STATUTES OR
PARTS OF STATUTES REPEALED BY THIS ACT ARE, UNLESS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, HEREBY CONTINUED IN FORCE AND EFFECT ...
.  AN APPLICATION FOR SUSPENSION OF DEPORTATION UNDER SECTION 19 OF
THE IMMIGRATION ACT OF 1917, AS AMENDED  ...  WHICH IS PENDING ON THE
DATE OF ENACTMENT OF THIS ACT, SHALL BE REGARDED AS A PROCEEDING WITHIN
THE MEANING OF THIS SUBSECTION."  66 STAT. 280, 8 U.S.C. SEC. 1101,
NOTE. 
..END :










JOHNSON V. UNITED STATES 352 U.S. 565 


NO. 531, MISC. - DECIDED MARCH 4, 1957 - 238 F.2D 565, JUDGMENT VACATED
AND CASE REMANDED. 


1.  UNDER 28 U.S.C. SEC. 1915, WHICH PROVIDES THAT AN APPEAL MAY NOT
BE TAKEN IN FORMA PAUPERIS IF THE TRIAL COURT CERTIFIES THAT IT IS NOT
TAKEN IN GOOD FAITH, A CONVICTED DEFENDANT IS NOT BARRED FROM SHOWING
THAT SUCH A CERTIFICATION WAS UNWARRANTED AND THAT AN APPEAL SHOULD BE
ALLOWED.  PP. 565-566. 

2.  ALTHOUGH A CERTIFICATION BY A DISTRICT COURT UNDER 28 U.S.C. SEC.
1915 THAT AN APPEAL IS NOT TAKEN IN GOOD FAITH CARRIES GREAT WEIGHT, IT
IS THE DUTY OF A COURT OF APPEALS, UPON A PROPER SHOWING, TO SET SUCH A
CERTIFICATION ASIDE.  P. 566. 

3.  TO A CONVICTED DEFENDANT WHO CHALLENGES A TRIAL COURT'S
CERTIFICATION UNDER 28 U.S.C. SEC. 1915, A COURT OF APPEALS MUST AFFORD
THE AID OF COUNSEL UNLESS HE INSISTS ON BEING HIS OWN; AND EITHER THE
DEFENDANT OR ASSIGNED COUNSEL MUST BE ENABLED TO SHOW THAT THE GROUNDS
FOR SEEKING AN APPEAL ARE NOT FRIVOLOUS AND DO NOT JUSTIFY THE FINDING
THAT THE APPEAL IS NOT SOUGHT IN GOOD FAITH.   P. 566. 

4.  ALTHOUGH IT IS NOT REQUIRED IN EVERY SUCH CASE THAT THE UNITED
STATES MUST FURNISH THE DEFENDANT WITH A STENOGRAPHIC TRANSCRIPT OF THE
TRIAL, IT IS ESSENTIAL THAT HE BE ASSURED SOME APPROPRIATE MEANS OF
MAKING MANIFEST THE BASIS OF HIS CLAIM THAT THE TRIAL COURT'S
CERTIFICATION WAS UNWARRANTED.  P. 566. 

JOHNSON V. UNITED STATES. 

ON MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND ON PETITION FOR
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, AS IS LEAVE TO
PROCEED IN FORMA PAUPERIS. 

BY THE ACT OF JUNE 25, 1910, 36 STAT. 866, AS NOW ENLARGED IN 28
U.S.C. SEC. 1915, CONGRESS PROVIDED FOR PROCEEDINGS IN FORMA PAUPERIS
ON APPEAL UNLESS "THE TRIAL COURT CERTIFIES IN WRITING THAT IT (THE
APPEAL) IS NOT TAKEN IN GOOD FAITH."  SUCH CERTIFICATION IS NOT FINAL
IN THE SENSE THAT THE CONVICTED DEFENDANT IS BARRED FROM SHOWING THAT
IT WAS UNWARRANTED AND THAT AN APPEAL SHOULD BE ALLOWED.  OF COURSE,
CERTIFICATION BY THE JUDGE PRESIDING AT THE TRIAL CARRIES GREAT WEIGHT
BUT, NECESSARILY, IT CANNOT BE CONCLUSIVE.  UPON A PROPER SHOWING A
COURT OF APPEALS HAS A DUTY TO DISPLACE A DISTRICT COURT'S
CERTIFICATION.  MOREOVER, A COURT OF APPEALS MUST, UNDER JOHNSON V.
ZERBST, 304 U.S. 458, AFFORD ONE WHO CHALLENGES THAT CERTIFICATION THE
AID OF COUNSEL UNLESS HE INSISTS ON BEING HIS OWN.  FINALLY, EITHER THE
DEFENDANT OR HIS ASSIGNED COUNSEL MUST BE ENABLED TO SHOW THAT THE
GROUNDS FOR SEEKING AN APPEAL FROM THE JUDGMENT OF CONVICTION ARE NOT
FRIVOLOUS AND DO NOT JUSTIFY THE FINDING THAT THE APPEAL IS NOT SOUGHT
IN GOOD FAITH.  THIS DOES NOT REQUIRE THAT IN EVERY SUCH CASE THE
UNITED STATES MUST FURNISH THE DEFENDANT WITH A STENOGRAPHIC TRANSCRIPT
OF THE TRIAL.  IT IS ESSENTIAL, HOWEVER, THAT HE BE ASSURED SOME
APPROPRIATE MEANS - SUCH AS THE DISTRICT JUDGE'S NOTES OR AN AGREED
STATEMENT BY TRIAL COUNSEL - OF MAKING MANIFEST THE BASIS OF HIS CLAIM
THAT THE DISTRICT COURT COMMITTED ERROR IN CERTIFYING THAT THE DESIRED
APPEAL WAS NOT PURSUED IN GOOD FAITH.  SEE MILLER V. UNITED STATES, 317
U.S. 192, 198. 

SINCE HERE THE COURT OF APPEALS DID NOT ASSIGN COUNSEL TO ASSIST
PETITIONER IN PROSECUTING HIS APPLICATION FOR LEAVE TO APPEAL IN FORMA
PAUPERIS AND SINCE IT DOES NOT APPEAR THAT THE COURT OF APPEALS ASSURED
PETITIONER ADEQUATE MEANS OF PRESENTING IT WITH A FAIR BASIS FOR
DETERMINING WHETHER THE DISTRICT COURT'S CERTIFICATION WAS WARRANTED,
THE JUDGMENT BELOW MUST BE VACATED AND THE CASE REMANDED TO THE COURT
OF APPEALS FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  SO
ORDERED. 
..END :























PRINCE V. UNITED STATES 352 U.S. 322 


NO. 132.  ARGUED DECEMBER 11, 1956 - DECIDED FEBRUARY 25, 1957 - 230
F.2D 568, REVERSED AND REMANDED. 


PETITIONER WAS CONVICTED UNDER THE FEDERAL BANK ROBBERY ACT, 18 U.S.C.
SEC. 2113, ON A TWO-COUNT INDICTMENT CHARGING (1) ROBBERY OF A
FEDERALLY INSURED BANK, AND (2) ENTERING THE BANK WITH INTENT TO COMMIT
A FELONY.  HE WAS SENTENCED TO 20 YEARS' IMPRISONMENT FOR THE ROBBERY
AND 15 YEARS FOR THE ENTERING, THE TWO SENTENCES TO RUN CONSECUTIVELY. 
HELD:  THE SENTENCE WAS ILLEGAL, AND HE MUST BE RESENTENCED ON THE
CONVICTION ON THE ROBBERY COUNT ONLY.  PP. 323-329. 

(A)  THIS INTERPRETATION OF THE LANGUAGE OF THE ACT IS UNCONTRADICTED
BY ANYTHING IN THE LEGISLATIVE HISTORY.  PP. 325-328. 

(B)  THE OBVIOUS PURPOSE OF THE 1937 AMENDMENT WAS TO ESTABLISH
OFFENSES LESS SERIOUS THAN ROBBERY; THERE IS NO INDICATION THAT
CONGRESS INTENDED THEREBY TO PYRAMID THE AUTHORIZED PENALTIES.  PP. 327
328. 

(C)  THE GRAVAMEN OF THE UNLAWFUL ENTRY OFFENSE IS THE INTENT TO
COMMIT A FELONY; AND, WHEN A ROBBERY IS CONSUMMATED FOLLOWING AN ENTRY,
THIS INTENT IS MERGED INTO THE ROBBERY AND THERE IS ONLY ONE CRIME.  P.
328. 

(D)  WHEN CONGRESS MADE EITHER ROBBERY OR AN ENTRY FOR THAT PURPOSE A
CRIME, IT INTENDED THAT THE MAXIMUM PRISON TERM FOR ROBBERY SHOULD
REMAIN AT 20 YEARS (OR 25 YEARS IF AGGRAVATED BY ASSAULT WITH A DEADLY
WEAPON), BUT THAT, EVEN IF THE CULPRIT SHOULD FALL SHORT OF
ACCOMPLISHING HIS PURPOSE, HE COULD BE IMPRISONED SIMILARLY FOR
ENTERING WITH THE FELONIOUS INTENT.  P. 329. 

(E)  THIS CONCLUSION IS CONSISTENT WITH THE POLICY OF NOT ATTRIBUTING
TO CONGRESS AN INTENTION TO PUNISH MORE SEVERELY THAN THE LANGUAGE OF
ITS LAWS CLEARLY IMPORTS IN THE LIGHT OF PERTINENT LEGISLATIVE
HISTORY.  P. 329. 

PRINCE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE CALLS FOR INTERPRETATION OF THE
FEDERAL BANK ROBBERY ACT.  18 U.S.C. SEC. 2113.  (FN1)  THAT STATUTE
CREATES AND DEFINES SEVERAL CRIMES INCIDENTAL TO AND RELATED TO THEFTS
FROM BANKS ORGANIZED OR INSURED UNDER FEDERAL LAWS.  INCLUDED ARE BANK
ROBBERY AND ENTERING A BANK WITH INTENT TO COMMIT A ROBBERY.  (FN2)  WE
MUST DECIDE HERE WHETHER UNLAWFUL ENTRY AND ROBBERY ARE TWO OFFENSES
CONSECUTIVELY PUNISHABLE IN A TYPICAL BANK ROBBERY SITUATION. 

PETITIONER ENTERED THE MALONE STATE BANK, IN MALONE, TEXAS, THROUGH
AN OPEN DOOR AND DURING REGULAR BANKING HOURS.  HE ASKED FOR AND
RECEIVED CERTAIN DIRECTIONS.  THEREUPON HE DISPLAYED A REVOLVER,
INTIMIDATING A BANK EMPLOYEE AND PUTTING HIS LIFE IN JEOPARDY, AND THUS
CONSUMMATED A ROBBERY.  A GRAND JURY RETURNED A TWO-COUNT INDICTMENT
AGAINST HIM.  THE FIRST CHARGED THE ROBBERY OFFENSE; THE SECOND,
ENTERING THE BANK WITH THE INTENT TO COMMIT A FELONY.  PETITIONER WAS
CONVICTED ON BOTH COUNTS, AND THE DISTRICT JUDGE SENTENCED HIM TO 20
YEARS FOR ROBBERY AND 15 YEARS FOR ENTERING.  THE SENTENCES WERE
DIRECTED TO BE SERVED CONSECUTIVELY.  SOME YEARS THEREAFTER, PETITIONER
FILED A "MOTION TO VACATE OR CORRECT ILLEGAL SENTENCE."  THE DISTRICT
COURT, TREATING IT AS A PROCEEDING UNDER RULE 35 OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE, DENIED RELIEF WITHOUT CONDUCTING A HEARING.  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  230 F.2D 568. 

WHETHER THE CRIME OF ENTERING A BANK WITH INTENT TO COMMIT A ROBBERY
IS MERGED WITH THE CRIME OF ROBBERY WHEN THE LATTER IS CONSUMMATED HAS
PUZZLED THE COURTS FOR SEVERAL YEARS.  A CONFLICT HAS ARISEN BETWEEN
THE CIRCUITS.  (FN3)  WE GRANTED CERTIORARI BECAUSE OF THE RECURRENCE
OF THE QUESTION AND TO RESOLVE THE CONFLICT.  351 U.S. 962.  IN
ADDITION TO THE COURT OF APPEALS CASES ON THE PRECISE QUESTION, BOTH
PETITIONER AND THE GOVERNMENT CITE AS ANALOGOUS OTHER CASES THAT
INVOLVED FRAGMENTATION OF CRIMES FOR PURPOSES OF PUNISHMENT.  (FN4)
NONE OF THESE IS PARTICULARLY HELPFUL TO US BECAUSE WE ARE DEALING WITH
A UNIQUE STATUTE OF LIMITED PURPOSE AND AN INCONCLUSIVE LEGISLATIVE
HISTORY.  IT CAN AND SHOULD BE DIFFERENTIATED FROM SIMILAR PROBLEMS IN
THIS GENERAL FIELD RAISED UNDER OTHER STATUTES.  THE QUESTION OF
INTERPRETATION IS A NARROW ONE, AND OUR DECISION SHOULD BE
CORRESPONDINGLY NARROW. 

THE ORIGINAL BANK ROBBERY ACT WAS PASSED IN 1934.  IT COVERED ONLY
ROBBERY, ROBBERY ACCOMPANIED BY AN AGGRAVATED ASSAULT, AND HOMICIDE
PERPETRATED IN COMMITTING A ROBBERY OR ESCAPING THEREAFTER.  IN 1937
THE ATTORNEY GENERAL REQUESTED THAT THE ACT BE AMENDED.  IN HIS LETTER
PROPOSING THE BILL, THE ATTORNEY GENERAL DECLARED THAT "INCONGRUOUS
RESULTS" HAD DEVELOPED UNDER THE EXISTING LAW.  HE CITED AS A STRIKING
INSTANCE THE CASE OF: 

"  ...  A MAN WHO WAS ARRESTED IN A NATIONAL BANK WHILE WALKING OUT
OF THE BUILDING WITH $11,000 OF THE BANK'S FUNDS ON HIS PERSON.  HE HAD
MANAGED TO GAIN POSSESSION OF THE MONEY DURING A MOMENTARY ABSENCE OF
ONE OF THE EMPLOYEES, WITHOUT DISPLAYING ANY FORCE OR VIOLENCE AND
WITHOUT PUTTING ANYONE IN FEAR - NECESSARY ELEMENTS OF THE CRIME OF
ROBBERY - AND WAS ABOUT TO LEAVE THE BANK WHEN APPREHENDED.  AS A
RESULT, IT WAS NOT PRACTICABLE TO PROSECUTE HIM UNDER ANY FEDERAL
STATUTE." 

THE ACT WAS AMENDED ACCORDINGLY TO ADD OTHER CRIMES LESS SERIOUS THAN
ROBBERY.  TWO LARCENY PROVISIONS WERE ENACTED:  ONE FOR THEFTS OF
PROPERTY EXCEEDING $50, THE OTHER FOR LESSER AMOUNTS.  CONGRESS FURTHER
MADE IT A CRIME TO: 

"  ...  ENTER OR ATTEMPT TO ENTER ANY BANK,  ...  WITH INTENT TO
COMMIT IN SUCH BANK OR BUILDING, OR PART THEREOF, SO USED, ANY FELONY
OR LARCENY  ...  ." 

ROBBERY, ENTERING AND LARCENY WERE ALL PLACED IN ONE PARAGRAPH OF THE
1937 ACT.  (FN5) 

CONGRESS PROVIDED FOR MAXIMUM PENALTIES OF EITHER A PRISON TERM OR A
FINE OR BOTH FOR EACH OF THESE OFFENSES.  ROBBERY REMAINED PUNISHABLE
BY 20 YEARS AND $5,000.  THE LARCENY PENALTIES WERE SET ACCORDING TO
THE DEGREE OF THE OFFENSE.  SIMPLE LARCENY COULD RESULT IN 1 YEAR IN
JAIL AND $1,000 FINE, WHILE THE MAXIMUM FOR THE MORE SERIOUS THEFT WAS
SET AT 10 YEARS AND $5,000.  NO SEPARATE PENALTY CLAUSE WAS ADDED FOR
THE CRIME OF UNLAWFULLY ENTERING.  IT WAS SIMPLY INCORPORATED INTO THE
ROBBERY PROVISION.  (FN6) 

THE GOVERNMENT ASKS US TO INTERPRET THIS STATUTE AS AMENDED TO MAKE
EACH A COMPLETELY INDEPENDENT OFFENSE.  IT IS UNNECESSARY TO DO SO IN
ORDER TO VINDICATE THE APPARENT PURPOSE OF THE AMENDMENT.  THE ONLY
FACTOR STRESSED BY THE ATTORNEY GENERAL IN HIS LETTER TO CONGRESS WAS
THE POSSIBILITY THAT A THIEF MIGHT NOT COMMIT ALL THE ELEMENTS OF THE
CRIME OF ROBBERY.  IT WAS MANIFESTLY THE PURPOSE OF CONGRESS TO
ESTABLISH LESSER OFFENSES.  BUT IN DOING SO THERE WAS NO INDICATION
THAT CONGRESS INTENDED ALSO TO PYRAMID THE PENALTIES. 

THE ATTORNEY GENERAL CITED THE SITUATION OF LARCENY TO ILLUSTRATE HIS
POSITION.  IT IS HIGHLY UNLIKELY THAT HE WOULD HAVE WANTED TO HAVE THE
OFFENDER GIVEN 10 YEARS FOR THE LARCENY PLUS 20 YEARS FOR ENTERING THE
BANK WITH INTENT TO STEAL.  THERE IS NO REASON TO SUPPOSE THAT HE
WISHED TO HAVE THE MAXIMUM PENALTY FOR ROBBERY DOUBLED BY THE
IMPOSITION OF 20 YEARS FOR THE ROBBERY TO WHICH COULD BE ADDED 20 YEARS
FOR ENTERING THE BANK.  (FN7)  NOR IS THERE ANYTHING IN THE REPORTS OF
THE HOUSE OF REPRESENTATIVES OR THE SENATE OR THE FLOOR DEBATES TO
WARRANT SUCH A READING OF THE STATUTE.  (FN8) 

IT IS A FAIR INFERENCE FROM THE WORDING IN THE ACT, UNCONTRADICTED BY
ANYTHING IN THE MEAGER LEGISLATIVE HISTORY, THAT THE UNLAWFUL ENTRY
PROVISION WAS INSERTED TO COVER THE SITUATION WHERE A PERSON ENTERS A
BANK FOR THE PURPOSE OF COMMITTING A CRIME, BUT IS FRUSTRATED FOR SOME
REASON BEFORE COMPLETING THE CRIME.  THE GRAVAMEN OF THE OFFENSE IS NOT
IN THE ACT OF ENTERING, WHICH SATISFIES THE TERMS OF THE STATUTE EVEN
IF IT IS SIMPLY WALKING THROUGH AN OPEN, PUBLIC DOOR DURING NORMAL
BUSINESS HOURS.  (FN9)  RATHER THE HEART OF THE CRIME IS THE INTENT TO
STEAL.  THIS MENTAL ELEMENT MERGES INTO THE COMPLETED CRIME IF THE
ROBBERY IS CONSUMMATED.  TO GO BEYOND THIS REASONING WOULD COMPEL US TO
FIND THAT CONGRESS INTENDED, BY THE 1937 AMENDMENT, TO MAKE DRASTIC
CHANGES IN AUTHORIZED PUNISHMENTS.  THIS WE CANNOT DO.  IF CONGRESS HAD
SO INTENDED, THE RESULT COULD HAVE BEEN ACCOMPLISHED EASILY WITH
CERTAINTY RATHER THAN BY INDIRECTION.  (FN10) 

WE HOLD, THEREFORE, THAT WHEN CONGRESS MADE EITHER ROBBERY OR AN
ENTRY FOR THAT PURPOSE A CRIME IT INTENDED THAT THE MAXIMUM PUNISHMENT
FOR ROBBERY SHOULD REMAIN AT 20 YEARS, (FN11) BUT THAT, EVEN IF THE
CULPRIT SHOULD FALL SHORT OF ACCOMPLISHING HIS PURPOSE, HE COULD BE
IMPRISONED FOR 20 YEARS FOR ENTERING WITH THE FELONIOUS INTENT. 

WHILE REASONABLE MINDS MIGHT DIFFER ON THIS CONCLUSION, WE THINK IT
IS CONSISTENT WITH OUR POLICY OF NOT ATTRIBUTING TO CONGRESS, IN THE
ENACTMENT OF CRIMINAL STATUTES, AN INTENTION TO PUNISH MORE SEVERELY
THAN THE LANGUAGE OF ITS LAWS CLEARLY IMPORTS IN THE LIGHT OF PERTINENT
LEGISLATIVE HISTORY. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR THE PURPOSE OF RESENTENCING THE
PETITIONER IN ACCORDANCE WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  "(A)  WHOEVER, BY FORCE AND VIOLENCE, OR BY INTIMIDATION, TAKES,
OR ATTEMPTS TO TAKE, FROM THE PERSON OR PRESENCE OF ANOTHER ANY
PROPERTY OR MONEY OR ANY OTHER THING OF VALUE BELONGING TO, OR IN THE
CARE, CUSTODY, CONTROL, MANAGEMENT, OR POSSESSION OF, ANY BANK, OR ANY
SAVINGS AND LOAN ASSOCIATION; OR: 

"WHOEVER ENTERS OR ATTEMPTS TO ENTER ANY BANK, OR ANY SAVINGS AND
LOAN ASSOCIATION, OR ANY BUILDING USED IN WHOLE OR IN PART AS A BANK,
OR AS A SAVINGS AND LOAN ASSOCIATION, WITH INTENT TO COMMIT IN SUCH
BANK, OR IN SUCH SAVINGS AND LOAN ASSOCIATION, OR BUILDING, OR PART
THEREOF, SO USED, ANY FELONY AFFECTING SUCH BANK OR SUCH SAVINGS AND
LOAN ASSOCIATION AND IN VIOLATION OF ANY STATUTE OF THE UNITED STATES,
OR ANY LARCENY: 

"SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN
TWENTY YEARS, OR BOTH. 

"(B)  WHOEVER TAKES AND CARRIES AWAY, WITH INTENT TO STEAL OR
PURLOIN, ANY PROPERTY OR MONEY OR ANY OTHER THING OF VALUE EXCEEDING
$100 BELONGING TO, OR IN THE CARE, CUSTODY, CONTROL, MANAGEMENT, OR
POSSESSION OF ANY BANK, OR ANY SAVINGS AND LOAN ASSOCIATION, SHALL BE
FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN TEN YEARS, OR
BOTH; OR: 

"WHOEVER TAKES AND CARRIES AWAY, WITH INTENT TO STEAL OR PURLOIN, ANY
PROPERTY OR MONEY OR ANY OTHER THING OF VALUE NOT EXCEEDING $100
BELONGING TO, OR IN THE CARE, CUSTODY, CONTROL, MANAGEMENT, OR
POSSESSION OF ANY BANK, OR ANY SAVINGS AND LOAN ASSOCIATION, SHALL BE
FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR
BOTH. 

     *         *         *         *         * 

"(D)  WHOEVER, IN COMMITTING, OR IN ATTEMPTING TO COMMIT, ANY OFFENSE
DEFINED IN SUBSECTIONS (A) AND (B) OF THIS SECTION, ASSAULTS ANY
PERSON, OR PUTS IN JEOPARDY THE LIFE OF ANY PERSON BY THE USE OF A
DANGEROUS WEAPON OR DEVICE, SHALL BE FINED NOT MORE THAN $10,000 OR
IMPRISONED NOT MORE THAN TWENTY-FIVE YEARS, OR BOTH." 

FN2  AS USED IN THIS OPINION, "ROBBERY" AND "LARCENY" REFER NOT TO
THE COMMON-LAW CRIMES, BUT RATHER TO THE ANALOGOUS OFFENSES IN THE BANK
ROBBERY ACT. 

FN3  IN ACCORD WITH THE DECISION OF THE FIFTH CIRCUIT IS ITS OWN
EARLIER RULING IN DURRETT V. UNITED STATES, 107 F.2D 438, AND RAWLS V.
UNITED STATES, 162 F.2D 798, DECIDED BY THE TENTH CIRCUIT.   ANOTHER
DECISION OF THE FIFTH CIRCUIT AFFIRMED CONSECUTIVE SENTENCES FOR
ROBBERY AND ENTERING WITH INTENT TO COMMIT ROBBERY.  WELLS V. UNITED
STATES, 124 F.2D 334.  HOWEVER, THE PRISONER, APPEARING PRO SE, HAD NOT
RAISED A QUESTION OF MERGER OF THESE OFFENSES IN THAT PROCEEDING.  WHEN
HE TRIED TO DO SO LATER, THE COURT HELD THAT HE WAS BARRED ON THE
GROUND THAT HE WAS MAKING A SECOND MOTION UNDER 28 U.S.C. SEC. 2255 FOR
SIMILAR RELIEF ON BEHALF OF THE SAME PRISONER.  WELLS V. UNITED STATES,
210 F.2D 112.  FINALLY HE SOUGHT REMEDY BY WRIT OF HABEAS CORPUS, BUT
THE NINTH CIRCUIT CONCLUDED THAT THE EARLIER SEC. 2255 PROCEEDINGS
PRECLUDED JURISDICTION.  MADIGAN V. WELLS, 224 F.2D 577, REVERSING
WELLS V. SWOPE, 121 F. SUPP. 718. 

CONTRARY TO THE FIFTH AND TENTH CIRCUITS ARE DETERMINATIONS OF THE
SIXTH CIRCUIT IN SIMUNOV V. UNITED STATES, 162 F.2D 314, AND A DISTRICT
COURT IN WELLS V. SWOPE, SUPRA.  TO THE SAME EFFECT ARE DICTA IN NINTH
CIRCUIT CASES.  MADIGAN V. WELLS, SUPRA, AT 578; BARKDOLL V. UNITED
STATES, 147 F.2D 617. 

FN4  UNITED STATES V. MICHENER, 331 U.S. 789; UNITED STATES V.
RAYNOR, 302 U.S. 540; BLOCKBURGER V. UNITED STATES, 284 U.S. 299;
UNITED STATES V. ADAMS, 281 U.S. 202; ALBRECHT V. UNITED STATES, 273
U.S. 1; MORGAN V. DEVINE, 237 U.S. 632; GAVIERES V. UNITED STATES, 220
U.S. 338; BURTON V. UNITED STATES, 202 U.S. 344; CARTER V. MCCLAUGHRY,
183 U.S. 365.  SEE ALSO BELL V. UNITED STATES, 349 U.S. 81; UNITED
STATES V. UNIVERSAL C.I.T. CREDIT CORP., 344 U.S. 218; EBELING V.
MORGAN, 237 U.S. 625; UNITED STATES V. DAUGHERTY, 269 U.S. 360. 

FN5  THIS APPEARED IN 12 U.S.C. (1946 ED.)  SEC.  588BA).  THE
STATUTE IN ITS PRESENT FORM WAS ENACTED BY THE JUNE 1948 REVISION.  18
U.S.C. SEC. 2113(A).  THE LEGISLATIVE HISTORY INDICATES THAT NO
SUBSTANTIAL CHANGE WAS MADE IN THIS REVISION.  IT SEGREGATED THE
LARCENY PROVISIONS IN SEC. 2113(B), LEAVING ROBBERY AND UNLAWFUL ENTRY
IN SEC. 2113(A).  SEE NOTE 1, SUPRA. 

FN6  THE BANK ROBBERY ACT HAS, SINCE IT WAS PASSED IN 1934, CONTAINED
A SPECIAL PROVISION FOR INCREASED PUNISHMENT FOR AGGRAVATED OFFENSES. 
ONE WHO, IN COMMITTING ROBBERY, ASSAULTS ANY PERSON OR PUTS THE LIFE OF
ANY PERSON IN JEOPARDY BY THE USE OF A DANGEROUS WEAPON CAN BE
SENTENCED TO 25 YEARS IN JAIL OR FINED $10,000 OR BOTH.  WHEN THE ACT
WAS AMENDED IN 1937 TO ADD LARCENY AND UNLAWFUL ENTRY, THESE WERE
INCORPORATED IN THE SAME PARAGRAPH WITH ROBBERY AND THUS MADE SUBJECT
TO THE INCREASED PENALTY UNDER AGGRAVATING CIRCUMSTANCES.  THIS
PROVISION CURRENTLY IS FOUND IN 18 U.S.C. SEC. 2113(D).  SEE NOTE 1,
SUPRA. 

FN7  UNDER THE GOVERNMENT VIEW, IF CARRIED TO ITS LOGICAL EXTREME,
ONE WHO ENTERS A BANK AND COMMITS A ROBBERY COULD BE SENTENCED TO 20
YEARS FOR ROBBERY, 10 YEARS FOR LARCENY AND 20 YEARS FOR UNLAWFUL
ENTRY.  THE GOVERNMENT CONCEDED THAT THIS WAS ERROR IN HEFLIN V. UNITED
STATES, 223 F.2D 371 (ROBBERY AND LARCENY).  HOWEVER, IT NOW DECLARES
THAT ITS CONFESSION OF ERROR WAS MADE BY MISTAKE AND THAT LARCENY AND
ROBBERY ARE SEPARATE OFFENSES, CUMULATIVELY PUNISHABLE. 

FN8  H.R. REP. NO. 732, 75TH CONG., 1ST SESS.; S. REP. NO. 1259, 75TH
CONG., 1ST SESS.; 81 CONG. REC. 2731, 4656, 5376-5377, 9331. 

FN9  THIS DISTINGUISHES THE UNLAWFUL ENTRY PROVISION IN THE BANK
ROBBERY ACT FROM A VERY SIMILAR PROVISION RELATING TO POST-OFFICE
OFFENSES.  18 U.S.C. SEC. 2115: 

"WHOEVER FORCIBLY BREAKS INTO OR ATTEMPTS TO BREAK INTO ANY POST
OFFICE, OR ANY BUILDING USED IN WHOLE OR IN PART AS A POST OFFICE, WITH
INTENT TO COMMIT IN SUCH POST OFFICE, OR BUILDING, OR PART THEREOF, SO
USED, ANY LARCENY OR OTHER DEPREDATION, SHALL BE FINED  ...  ."    THIS
OFFICE THEFT.  MORGAN V. DEVINE, 237 U.S. 632. 

FN10  FURTHER EVIDENCE THAT CONGRESS WAS CONCERNED ONLY WITH
PROSCRIBING ADDITIONAL ACTIVITIES AND NOT WITH ALTERATION OF THE SCHEME
OF PENALTIES IS REVEALED BY THE FORM IN WHICH THE BILL WAS CAST. 
INTRODUCED IN THE HOUSE OF REPRESENTATIVES, THE PROPOSAL MERELY
INTERJECTED INTO THE ROBBERY PROVISION CLAUSES MAKING LARCENY AND
ENTERING CRIMINAL.  H.R. 5900, 75TH CONG., 1ST SESS.; H.R. REP. NO.
732, 75TH CONG., 1ST SESS. 2.  ALL THREE WOULD HAVE MADE VIOLATORS
SUBJECT TO THE EXISTING PENALTY CLAUSE.  DURING THE DEBATE ON THE
FLOOR, REP. WOLCOTT POINTED TO THE INCONGRUITY OF ESTABLISHING DEGREES
OF LARCENY WITHOUT CORRESPONDING DISCRIMINATION IN PUNISHMENT.  81
CONG. REC. 4656.  THE COMMITTEE ON THE JUDICIARY THEN AMENDED THE BILL
TO PROVIDE FOR PUNISHMENTS RELATED TO THE LARCENY OFFENSES.  81 CONG.
REC. 5376-5377.  THE SENATE ACCEPTED THE HOUSE VERSION WITHOUT DEBATE. 
81 CONG. REC.  9331; SEE S. REP. NO. 1259, 75TH CONG., 1ST SESS. 

FN11  IN THIS CASE, PETITIONER WAS CONVICTED OF ROBBERY AGGRAVATED BY
ASSAULT WITH A DEADLY WEAPON AND WAS SUBJECT TO THE MAXIMUM OF 25 YEARS
PROVIDED IN 18 U.S.C. SEC. 2113(D).  SEE NOTE 6, SUPRA. 

MR. JUSTICE BURTON DISSENTS FOR THE REASONS STATED IN THE OPINION OF
THE COURT OF APPEALS, 230 F.2D 568. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







IN RE GROBAN 352 U.S. 330 


NO. 14.  ARGUED NOVEMBER 6, 1956 - DECIDED FEBRUARY 25, 1957 - 164 OHIO
ST. 26, 128 N.E.2D 106, AFFIRMED. 


AFTER A FIRE OCCURRED ON PREMISES OF A CORPORATION OWNED AND OPERATED
BY APPELLANTS IN OHIO, THE STATE FIRE MARSHAL SUBPOENAED APPELLANTS TO
APPEAR AS WITNESSES IN AN INVESTIGATION BY HIM OF THE CAUSE OF THE
FIRE.  RELYING ON PAGE'S OHIO REV. CODE, 1954, SEC. 3737.13, WHICH
PROVIDES THAT SUCH AN INVESTIGATION "MAY BE PRIVATE" AND THAT THE
MARSHAL MAY "EXCLUDE FROM THE PLACE" WHERE THE INVESTIGATION IS HELD
"ALL PERSONS OTHER THAN THOSE REQUIRED TO BE PRESENT," HE REFUSED TO
PERMIT APPELLANTS' COUNSEL TO BE PRESENT AT THE PROCEEDING.  APPELLANTS
DECLINED TO BE SWORN AND TO TESTIFY IN THE ABSENCE OF THEIR COUNSEL. 
THIS WAS TREATED AS A VIOLATION OF SEC. 3737.12, WHICH FORBIDS ANY
WITNESS TO REFUSE TO BE SWORN OR TO REFUSE TO TESTIFY; AND, PURSUANT TO
SEC. 3737.99(A), THE MARSHAL COMMITTED APPELLANTS TO JAIL UNTIL SUCH
TIME AS THEY SHOULD BE WILLING TO TESTIFY.  DENIAL OF THEIR APPLICATION
FOR A WRIT OF HABEAS CORPUS WAS AFFIRMED BY THE STATE SUPREME COURT. 
HELD: 

1.  UNDER 28 U.S.C. SEC. 1257(2), THIS COURT HAS JURISDICTION OF THIS
APPEAL.  PP. 331-332. 

2.  APPELLANTS HAD NO CONSTITUTIONAL RIGHT TO BE ASSISTED BY COUNSEL
IN GIVING TESTIMONY AT THE INVESTIGATORY PROCEEDING CONDUCTED BY THE
FIRE MARSHAL; AND, INSOFAR AS IT AUTHORIZES THE EXCLUSION OF COUNSEL
WHILE A WITNESS TESTIFIES, SEC. 3737.13 IS NOT REPUGNANT TO THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 332-335. 

IN RE GROBAN ET AL. 

ON APPEAL FROM THE SUPREME COURT OF OHIO. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS APPEAL IS WHETHER APPELLANTS HAD A
CONSTITUTIONAL RIGHT UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE ASSISTANCE OF THEIR OWN COUNSEL IN GIVING TESTIMONY AS
WITNESSES AT A PROCEEDING CONDUCTED BY THE OHIO STATE FIRE MARSHAL TO
INVESTIGATE THE CAUSES OF A FIRE. 

AFTER A FIRE OCCURRED ON THE PREMISES OF A CORPORATION OWNED AND
OPERATED BY APPELLANTS, THE FIRE MARSHAL STARTED AN INVESTIGATION INTO
THE CAUSES OF THE FIRE AND SUBPOENAED APPELLANTS TO APPEAR AS
WITNESSES.  THE FIRE MARSHAL REFUSED TO PERMIT APPELLANTS' COUNSEL TO
BE PRESENT AT THE PROCEEDING, RELYING ON SEC. 3737.13 OF THE OHIO CODE,
WHICH PROVIDES THAT THE "INVESTIGATION MAY BE PRIVATE" AND THAT HE MAY
"EXCLUDE FROM THE PLACE WHERE THE INVESTIGATION IS HELD ALL PERSONS
OTHER THAN THOSE REQUIRED TO BE PRESENT  ...  ."  (FN1)  APPELLANTS
DECLINED TO BE SWORN AND TO TESTIFY WITHOUT THE IMMEDIATE PRESENCE OF
THEIR COUNSEL, WHO HAD ACCOMPANIED THEM TO THE HEARING.  THEIR REFUSAL
WAS TREATED AS A VIOLATION OF SEC. 3737.12, WHICH PROVIDES THAT "NO
WITNESS SHALL REFUSE TO BE SWORN OR REFUSE TO TESTIFY  ...  ."  SECTION
3737.99(A) PROVIDES THAT "WHOEVER VIOLATES SECTION 3737.12  ... MAY BE
SUMMARILY PUNISHED, BY THE OFFICER CONCERNED, BY  ...  COMMITMENT TO
THE COUNTY JAIL UNTIL SUCH PERSON IS WILLING TO COMPLY WITH THE ORDER
OF SUCH OFFICER."  THE FIRE MARSHAL ACCORDINGLY COMMITTED APPELLANTS TO
THE COUNTY JAIL UNTIL SUCH TIME AS THEY SHOULD BE WILLING TO TESTIFY. 
(FN2)  APPELLANTS' APPLICATION FOR A WRIT OF HABEAS CORPUS WAS DENIED
BY THE OHIO COURT OF COMMON PLEAS, AND THIS DENIAL WAS AFFIRMED ON
APPEAL BY THE OHIO COURT OF APPEALS AND BY THE OHIO SUPREME COURT. 
(FN3) 

WE POSTPONED FURTHER CONSIDERATION OF THE QUESTION OF JURISDICTION TO
THE HEARING ON THE MERITS.  351 U.S. 903.  THE OHIO SUPREME COURT
CONSTRUED SEC. 3737.13 TO AUTHORIZE THE FIRE MARSHAL TO EXCLUDE
APPELLANTS' COUNSEL FROM THE PROCEEDING.  SINCE APPELLANTS' ATTACK IS
ON THE CONSTITUTIONALITY OF THAT SECTION, WE HAVE JURISDICTION ON
APPEAL.  28 U.S.C. SEC. 1257(2). 

WE NOTE AT THE OUTSET THAT APPELLANTS EXPLICITLY DISAVOW MAKING ANY
DIRECT ATTACK ON THE FIRE MARSHAL'S POWER OF SUMMARY PUNISHMENT UNDER
SEC. 3737.99(A).  THEY CHALLENGE NOT THE VALIDITY OF THE PROCEDURE BY
WHICH THEY WERE COMMITTED TO JAIL, BUT THE CONSTITUTIONAL SUFFICIENCY
OF THE GROUNDS ON WHICH THEY WERE SO COMMITTED.  THEIR SOLE ASSERTION
IS THAT THE FIRE MARSHAL'S AUTHORITY TO EXCLUDE COUNSEL UNDER SEC.
3737.13 WAS UNCONSTITUTIONAL BECAUSE THEY HAD A RIGHT, UNDER THE DUE
PROCESS CLAUSE, TO THE ASSISTANCE OF THEIR COUNSEL IN GIVING THEIR
TESTIMONY. 

IT IS CLEAR THAT A DEFENDANT IN A STATE CRIMINAL TRIAL HAS AN
UNQUALIFIED RIGHT, UNDER THE DUE PROCESS CLAUSE, TO BE HEARD THROUGH
HIS OWN COUNSEL.  CHANDLER V. FRETAG, 348 U.S. 3.  PROSECUTION OF AN
INDIVIDUAL DIFFERS WIDELY FROM ADMINISTRATIVE INVESTIGATION OF
INCIDENTS DAMAGING TO THE ECONOMY OR DANGEROUS TO THE PUBLIC.  THE
PROCEEDING BEFORE THE FIRE MARSHAL WAS NOT A CRIMINAL TRIAL, NOR WAS IT
AN ADMINISTRATIVE PROCEEDING THAT WOULD IN ANY WAY ADJUDICATE
APPELLANTS' RESPONSIBILITIES FOR THE FIRE.  IT WAS A PROCEEDING SOLELY
TO ELICIT FACTS RELATING TO THE CAUSES AND CIRCUMSTANCES OF THE FIRE. 
THE FIRE MARSHAL'S DUTY WAS TO "DETERMINE WHETHER THE FIRE WAS THE
RESULT OF CARELESSNESS OR DESIGN," AND TO ARREST ANY PERSON AGAINST
WHOM THERE WAS SUFFICIENT EVIDENCE ON WHICH TO BASE A CHARGE OF ARSON. 
(FN4) 

THE FACT THAT APPELLANTS WERE UNDER A LEGAL DUTY TO SPEAK AND THAT
THEIR TESTIMONY MIGHT PROVIDE A BASIS FOR CRIMINAL CHARGES AGAINST THEM
DOES NOT MEAN THAT THEY HAD A CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF
THEIR COUNSEL.  APPELLANTS HERE ARE WITNESSES FROM WHOM INFORMATION WAS
SOUGHT AS TO THE CAUSE OF THE FIRE.  A WITNESS BEFORE A GRAND JURY
CANNOT INSIST, AS A MATTER OF CONSTITUTIONAL RIGHT, ON BEING
REPRESENTED BY HIS COUNSEL, (FN5) NOR CAN A WITNESS BEFORE OTHER
INVESTIGATORY BODIES.  (FN6)  THERE IS NO MORE REASON TO ALLOW THE
PRESENCE OF COUNSEL BEFORE A FIRE MARSHAL TRYING IN THE PUBLIC INTEREST
TO DETERMINE THE CAUSE OF A FIRE.  OBVIOUSLY IN THESE SITUATIONS
EVIDENCE OBTAINED MAY POSSIBLY LAY A WITNESS OPEN TO CRIMINAL CHARGES. 
WHEN SUCH CHARGES ARE MADE IN A CRIMINAL PROCEEDING, HE THEN MAY DEMAND
THE PRESENCE OF HIS COUNSEL FOR HIS DEFENSE.  UNTIL THEN HIS PROTECTION
IS THE PRIVILEGE AGAINST SELF-INCRIMINATION.  (FN7)  U.S. CONST.,
AMEND. V; OHIO CONST., ART. I, SEC. 10.  SEE ADAMSON V. CALIFORNIA, 332
U.S. 46, 52.  THIS IS A PRIVILEGE AVAILABLE IN INVESTIGATIONS AS WELL
AS IN PROSECUTIONS.  SEE IN RE GROBAN, 164 OHIO ST. 26, 28, 128 N.E.2D
106, 108, AND 99 OHIO APP. 512, 515, 135 N.E.2D 477, 479-480; MCCARTHY
V. ARNDSTEIN, 266 U.S. 34, 40; ADAMS V. MARYLAND, 347 U.S. 179.  WE
HAVE NO DOUBT THAT THE PRIVILEGE IS AVAILABLE IN OHIO AGAINST
PROSECUTIONS AS WELL AS CONVICTIONS REASONABLY FEARED.  CF. ULLMAN V.
UNITED STATES, 350 U.S. 422, 431.  THE MERE FACT THAT SUSPICION MAY BE
ENTERTAINED OF SUCH A WITNESS, AS APPELLANTS BELIEVED EXISTED HERE,
THOUGH WITHOUT ALLEGATION OF FACTS TO SUPPORT SUCH A BELIEF, DOES NOT
BAR THE TAKING OF TESTIMONY IN A PRIVATE INVESTIGATORY PROCEEDING. 

IT MAY BE THAT THE NUMBER OF PEOPLE PRESENT IN A GRAND JURY
PROCEEDING GIVES GREATER ASSURANCE THAT IMPROPER USE WILL NOT BE MADE
OF THE WITNESS' PRESENCE.  WE THINK, HOWEVER, THAT THE PRESUMPTION OF
FAIR AND ORDERLY CONDUCT BY THE STATE OFFICIALS WITHOUT COERCION OR
DISTORTION EXISTS UNTIL CHALLENGED BY FACTS TO THE CONTRARY. 
POSSIBILITY OF IMPROPER EXERCISE OF OPPORTUNITY TO EXAMINE IS NOT IN
OUR JUDGMENT A SOUND REASON TO SET ASIDE A STATE'S PROCEDURE FOR FIRE
PREVENTION.  AS IN SIMILAR SITUATIONS, ABUSES MAY BE CORRECTED AS THEY
ARISE, FOR EXAMPLE, BY EXCLUDING FROM SUBSEQUENT PROSECUTIONS EVIDENCE
IMPROPERLY OBTAINED. 

OHIO, LIKE MANY OTHER STATES, MAINTAINS A DIVISION OF THE STATE
GOVERNMENT DIRECTED BY THE FIRE MARSHAL FOR THE PREVENTION OF FIRES AND
REDUCTION OF FIRE LOSSES.  (FN8)  SECTION 3737.13, WHICH HAS BEEN IN
EFFECT SINCE 1900, (FN9), REPRESENTS A DETERMINATION BY THE OHIO
LEGISLATURE THAT INVESTIGATIONS CONDUCTED IN PRIVATE MAY BE THE MOST
EFFECTIVE METHOD OF BRINGING TO LIGHT FACTS CONCERNING THE ORIGINS OF
FIRES, AND, IN THE LONG RUN, OF REDUCING INJURIES AND LOSSES FROM FIRES
CAUSED BY NEGLIGENCE OR BY DESIGN.  WE CANNOT SAY THAT THIS
DETERMINATION IS UNREASONABLE.  THE PRESENCE OF ADVISORS TO WITNESSES
MIGHT EASILY SO FAR ENCUMBER AN INVESTIGATORY PROCEEDING AS TO MAKE IT
UNWORKABLE OR UNWIELDY.  AND WITH SO WEIGHTY A PUBLIC INTEREST AS FIRE
PREVENTION TO PROTECT, WE CANNOT HOLD THAT THE BALANCE HAS BEEN SET IN
SUCH A WAY AS TO BE CONTRARY TO "FUNDAMENTAL PRINCIPLES OF LIBERTY AND
JUSTICE."  HEBERT V. LOUISIANA, 272 U.S. 312, 316.  THAT IS THE TEST TO
MEASURE THE VALIDITY OF A STATE STATUTE UNDER THE DUE PROCESS CLAUSE. 

APPELLANTS URGE, HOWEVER, THAT THE FIRE MARSHAL'S POWER TO EXCLUDE
COUNSEL UNDER SEC. 3737.13 MUST BE CONSIDERED IN THE LIGHT OF HIS POWER
OF SUMMARY PUNISHMENT UNDER SEC. 3737.99(A), AND THEY WOULD HAVE US
HOLD THAT, SO CONSIDERED, HIS POWER TO EXCLUDE COUNSEL WAS
UNCONSTITUTIONAL.  WE HELD IN RE OLIVER, 333 U.S. 257, THAT A WITNESS
BEFORE A ONE-MAN GRAND JURY, A JUDGE, COULD NOT CONSTITUTIONALLY BE
PUNISHED SUMMARILY FOR CONTEMPT OF THE GRAND JURY WITHOUT BEING ALLOWED
TO BE REPRESENTED BY HIS COUNSEL.  WE SEE NO RELATION BETWEEN THE
PREMISE THAT APPELLANTS COULD NOT BE PUNISHED WITHOUT REPRESENTATION BY
COUNSEL AND THE CONCLUSION THAT THEY COULD NOT BE QUESTIONED WITHOUT
SUCH REPRESENTATION.  SECTION 3737.13 MAY CONTAIN A CONSTITUTIONAL FLAW
IF IT SHOULD BE CONSTRUED TO AUTHORIZE THE EXCLUSION OF COUNSEL WHILE
THE FIRE MARSHAL DETERMINES THAT A WITNESS HAS VIOLATED SEC. 3737.12
AND ORDERS THE WITNESS COMMITTED.  THE SOLE ASSERTION OF A
CONSTITUTIONAL VIOLATION THAT APPELLANTS RELIED UPON BEFORE THE OHIO
SUPREME COURT AND THE ONLY ONE OPEN ON THE RECORD HERE - THE
AUTHORIZATION IN SEC. 3737.13 OF THE EXCLUSION OF COUNSEL WHILE A
WITNESS TESTIFIES - IS NOT WELL FOUNDED.  WE HOLD THAT APPELLANTS HAD
NO CONSTITUTIONAL RIGHT TO BE ASSISTED BY THEIR COUNSEL IN GIVING
TESTIMONY AT THE INVESTIGATORY PROCEEDING CONDUCTED BY THE FIRE
MARSHAL, AND THAT SEC. 3737.13, INSOFAR AS IT AUTHORIZES THE EXCLUSION
OF COUNSEL WHILE A WITNESS TESTIFIES, IS NOT REPUGNANT TO THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  AFFIRMED. 

FN1  PAGE'S OHIO REV. CODE, 1954, SEC. 3737.13. 

FN2  APPELLANTS WERE RELEASED ON BOND AND HAVE NEVER IN FACT BEEN
INCARCERATED. 

FN3  IN RE GROBAN, 99 OHIO APP. 512, 135 N.E.2D 477; 164 OHIO ST. 26,
128 N.E.2D 106. 

FN4  PAGE'S OHIO REV. CODE, 1954, SECS. 3737.08, 3737.10. 

FN5  IN RE BLACK, 47 F.2D 542; ACCORD, UNITED STATES V. BLANTON, 77
F. SUPP. 812; SEE UNITED STATES V. SCULLY, 225 F.2D 113, 116. 

FN6  BOWLES V. BAER, 142 F.2D 787; UNITED STATES V. LEVINE, 127 F.
SUPP. 651.  NOTE, RIGHTS OF WITNESSES IN ADMINISTRATIVE INVESTIGATIONS,
54 HARV. L. REV. 1214, 1216-1217. 

FN7  CF. ULLMANN V. UNITED STATES, 350 U.S. 422; HOFFMAN V. UNITED
STATES, 341 U.S. 479, 486; SMITH V. UNITED STATES, 337 U.S. 137, 150;
HALE V. HENKEL, 201 U.S. 43, 66-67. 

FN8  SEE NATIONAL FIRE PROTECTION ASSOCIATION HANDBOOK OF FIRE
PROTECTION (10TH ED. 1948) 41-45; ANNUAL REPORT OF THE DIVISION OF OHIO
STATE FIRE MARSHAL FOR 1955. 

FN9  OHIO LAWS 1900, SENATE BILL NO. 51. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, CONCURRING. 

TO WHATEVER EXTENT HISTORY MAY CONFIRM LORD ACTON'S DICTUM THAT POWER
TENDS TO CORRUPT, SUCH A DOCTRINE OF FEAR CAN HARDLY SERVE AS A TEST,
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, OF A
PARTICULAR EXERCISE OF A STATE'S LEGISLATIVE POWER.  AND SO, THE
CONSTITUTIONALITY OF A PARTICULAR STATUTE, EXPRESSIVE OF A STATE'S VIEW
OF DESIRABLE POLICY FOR DEALING WITH ONE OF THE RUDIMENTARY CONCERNS OF
SOCIETY - THE PREVENTION OF FIRES AND THE ASCERTAINMENT OF THEIR CAUSES
- AND DIRECTED TOWARDS A PARTICULAR SITUATION, CANNOT BE DETERMINED BY
DERIVING A TROUPE OF HOBGOBLINS FROM THE ASSUMPTION THAT SUCH A
PARTICULARIZED EXERCISE OF POWER WOULD JUSTIFY AN UNLIMITED, ABUSIVE
EXERCISE OF POWER. 

IF THE OHIO LEGISLATION WERE DIRECTED EXPLICITLY OR BY OBVIOUS DESIGN
TOWARD SECRET INQUISITION OF THOSE SUSPECTED OF ARSON, WE WOULD HAVE A
WHOLLY DIFFERENT SITUATION FROM THE ONE BEFORE US.  THIS IS NOT A
STATUTE DIRECTED TO THE EXAMINATION OF SUSPECTS.  IT IS A STATUTE
AUTHORIZING INQUIRY BY THE CHIEF GUARDIAN OF A COMMUNITY AGAINST THE
HAZARDS OF FIRE INTO THE CAUSES OF FIRES.  TO BE SURE, IT DOES NOT
PRECLUDE THE POSSIBILITY THAT A SUSPECT MIGHT TURN UP AMONG THOSE TO BE
QUESTIONED BY THE FIRE MARSHAL.  BUT THE AIM OF THE STATUTE IS THE
EXPEDITIOUS AND EXPERT ASCERTAINMENT OF THE CAUSES OF FIRE.  THE FIRE
MARSHAL IS NOT A PROSECUTOR, THOUGH HE MAY, LIKE OTHERS, SERVE AS A
WITNESS FOR THE PROSECUTION.  IN VARIOUS PROCEEDINGS, AS FOR INSTANCE
UNDER SOME WORKMEN'S COMPENSATION LAWS, THE PRESENCE OF LAWYERS IS
DEEMED NOT CONDUCIVE TO THE ECONOMICAL AND THOROUGH ASCERTAINMENT OF
THE FACTS.  THE UTMOST DEVOTION TO ONE'S PROFESSION AND THE FULLEST
RECOGNITION OF THE GREAT ROLE OF LAWYERS IN THE EVOLUTION OF A FREE
SOCIETY CANNOT LEAD ONE TO ERECT AS A CONSTITUTIONAL PRINCIPLE THAT NO
ADMINISTRATIVE INQUIRY CAN BE HAD IN CAMERA UNLESS A LAWYER BE ALLOWED
TO ATTEND. 

THE ASSUMPTION THAT AS A NORMAL MATTER SUCH AN INQUIRY CARRIES WITH
IT DEPRIVATION OF SOME RIGHTS OF A CITIZEN ASSUMES INEVITABLE MISUSE OF
AUTHORITY.  FOR GOOD REASONS, AND CERTAINLY FOR CONSTITUTIONAL
PURPOSES, THE CONTRARY ASSUMPTION MUST BE ENTERTAINED.  THE POTENTIAL
DANGER MOST FEARED IS THAT IT WILL INVADE THE PRIVILEGE AGAINST SELF
INCRIMINATION IN STATES WHERE IT IS CONSTITUTIONALLY RECOGNIZED.  BUT
THAT PRIVILEGE IS AMPLY SAFEGUARDED BY THE DECISION OF THE SUPREME
COURT OF OHIO IN THIS CASE.  WE ARE NOT JUSTIFIED IN INVALIDATING THIS
OHIO STATUTE ON THE ASSUMPTION THAT PEOPLE CALLED BEFORE THE FIRE
MARSHAL WOULD NOT BE AWARE OF THEIR PRIVILEGE NOT TO RESPOND TO
QUESTIONS THE ANSWERS TO WHICH MAY TEND TO INCRIMINATE.  AT A TIME WHEN
THIS PRIVILEGE HAS ATTAINED THE FAMILIARITY OF THE COMIC STRIPS, THE
ASSUMPTION OF IGNORANCE ABOUT THE PRIVILEGE BY WITNESSES CALLED BEFORE
THE FIRE MARSHAL IS TOO FAR-FETCHED AN ASSUMPTION ON WHICH TO
INVALIDATE LEGISLATION. 

WHAT HAS BEEN SAID DISPOSES OF THE SUGGESTION THAT, BECAUSE THIS
STATUTE RELATING TO A GENERAL ADMINISTRATIVE, NON-PROSECUTORIAL INQUIRY
INTO THE CAUSES OF FIRE IS SUSTAINED, IT WOULD FOLLOW THAT SECRET
INQUISITORIAL POWERS GIVEN TO A DISTRICT ATTORNEY WOULD ALSO HAVE TO BE
SUSTAINED.  THE DUE PROCESS CLAUSE DOES NOT DISREGARD VITAL
DIFFERENCES.  IF IT BE SAID THAT THESE ARE ALL DIFFERENCES OF DEGREE,
THE DECISIVE ANSWER IS THAT RECOGNITION OF DIFFERENCES OF DEGREE IS
INHERENT IN DUE REGARD FOR DUE PROCESS.  WE ARE ADMONISHED FROM TIME TO
TIME NOT TO ADJUDICATE ON THE BASIS OF FEAR OF FOREIGN
TOTALITARIANISM.  EQUALLY SO SHOULD WE NOT BE GUIDED IN THE EXERCISE OF
OUR REVIEWING POWER OVER LEGISLATION BY FEAR OF TOTALITARIANISM IN OUR
OWN COUNTRY.    FOR THESE REASONS I JOIN THE OPINION OF THE COURT. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

I BELIEVE THAT IT VIOLATES THE PROTECTIONS GUARANTEED EVERY PERSON BY
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT FOR A STATE TO
COMPEL A PERSON TO APPEAR ALONE BEFORE ANY LAW-ENFORCEMENT OFFICER AND
GIVE TESTIMONY IN SECRET AGAINST HIS WILL.  UNDER THE REASONING OF THE
MAJORITY EVERY STATE AND FEDERAL LAW-ENFORCEMENT OFFICER IN THIS
COUNTRY COULD CONSTITUTIONALLY BE GIVEN POWER TO CONDUCT SUCH SECRET
COMPULSORY EXAMINATIONS.  THIS WOULD BE A COMPLETE DEPARTURE FROM OUR
TRADITIONAL METHODS OF LAW ENFORCEMENT AND WOULD GO A LONG WAY TOWARD
PLACING "THE LIBERTY OF EVERY MAN IN THE HANDS OF EVERY PETTY
OFFICER."  (FN1)  BY SANCTIONING THE OHIO STATUTES INVOLVED HERE THE
MAJORITY DISREGARDS "THIS NATION'S HISTORIC DISTRUST OF SECRET
PROCEEDINGS" (FN2) AND DECIDES CONTRARY TO THE GENERAL PRINCIPLE LAID
DOWN BY THIS COURT IN ONE OF ITS LANDMARK DECISIONS THAT AN ACCUSED "
...  REQUIRES THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE
PROCEEDINGS AGAINST HIM."  (FN3) 

THE OHIO STATUTES GIVE THE STATE FIRE MARSHAL AND HIS DEPUTIES BROAD
POWER TO INVESTIGATE THE CAUSE OF FIRES.  THESE OFFICERS CAN SUMMON ANY
PERSON TO APPEAR BEFORE ONE OR MORE OF THEM TO TESTIFY UNDER OATH. 
(FN4)  THEY CAN PUNISH HIM SUMMARILY FOR CONTEMPT IF HE REFUSES TO
ANSWER THEIR QUESTIONS OR IF HE DISOBEYS ANY OF THEIR ORDERS.  (FN5)
THEY CAN EXCLUDE ANY PERSON THEY WISH FROM THE EXAMINATION, INCLUDING
THE WITNESS' COUNSEL.  (FN6)  AFTER THE QUESTIONING THE MARSHAL OR HIS
DEPUTY CAN ARREST THE WITNESS IF HE BELIEVES THAT THERE IS EVIDENCE
SUFFICIENT TO CHARGE HIM WITH ARSON OR A SIMILAR CRIME.  (FN7)  ANY
STATEMENTS TAKEN FROM THE SUSPECT DURING THESE SECRET SESSIONS MUST BE
TURNED OVER TO THE PROSECUTING ATTORNEY FOR USE IN ANY SUBSEQUENT
PROSECUTION.  (FN8)  AN "ARSON BUREAU" IS ESTABLISHED IN THE FIRE
MARSHAL'S OFFICE AND IT IS PROVIDED WITH A STAFF CHARGED WITH THE DUTY
OF INVESTIGATING FIRES TO DETERMINE IF A CRIME HAS BEEN COMMITTED.  THE
FIRE MARSHAL AND HIS DEPUTY IN CHARGE OF THE "ARSON BUREAU" ARE
EXPRESSLY MADE "  ...  RESPONSIBLE  ...  FOR THE PROSECUTION OF PERSONS
BELIEVED TO BE GUILTY OF ARSON OR A SIMILAR CRIME."  (FN9)  THE
STATUTORY PROVISIONS SHOW THAT THE FIRE MARSHAL AND HIS DEPUTIES ARE
GIVEN THE ORDINARY DUTIES OF POLICEMEN WITH RESPECT TO "ARSON AND
SIMILAR CRIMES." 

AFTER APPELLANTS' PLACE OF BUSINESS AT DRESDEN, OHIO, BURNED DOWN, A
DEPUTY FIRE MARSHAL SUMMONED APPELLANTS TO APPEAR BEFORE HIM WITH THEIR
BUSINESS RECORDS TO ANSWER QUESTIONS ABOUT THE FIRE.  ACCORDING TO
THEIR UNCHALLENGED AFFIDAVIT, THE FIRE MARSHAL BELIEVED THAT THEY HAD
STARTED THE FIRE.   APPELLANTS APPEARED BEFORE THE DEPUTY WITH THEIR
LAWYER, STATING THAT THEY WERE WILLING TO TESTIFY FULLY BUT ONLY IF
THEY COULD HAVE THEIR COUNSEL PRESENT DURING THE INTERROGATION.  THE
DEPUTY INFORMED THEM THAT THE INTERROGATION WOULD BE HELD IN PRIVATE
AND REFUSED TO ADMIT THEIR LAWYER.  UNDER THESE CONDITIONS THEY REFUSED
TO TESTIFY.  THE DEPUTY PROCEEDED TO HOLD THEM IN CONTEMPT AND ORDERED
THEM IMPRISONED UNTIL THEY WERE WILLING TO TESTIFY BEFORE HIM IN
SECRET.  APPELLANTS' COUNSEL WAS NOT PRESENT AT THE TIME THEY REFUSED
TO TESTIFY NOR WHEN THEY WERE ADJUDGED IN CONTEMPT AND ORDERED
IMPRISONED. 

APPELLANTS INSTITUTED THIS ACTION FOR A WRIT OF HABEAS CORPUS IN A
STATE COURT OF OHIO CONTENDING THAT THEIR IMPRISONMENT WOULD BE
CONTRARY TO THE FOURTEENTH AMENDMENT.  THE OHIO SUPREME COURT REJECTED
THIS CONTENTION AND AFFIRMED THE JUDGMENTS OF LOWER STATE COURTS
REFUSING TO ISSUE THE WRIT.  THIS COURT UPHOLDS THE DECISION BELOW, BUT
EVEN ON THE NARROW GROUNDS UPON WHICH IT CHOOSES TO DECIDE THE CASE I
THINK THAT ITS HOLDING IS ERRONEOUS AND CONSTITUTES A VERY DANGEROUS
PRECEDENT.   (FN10)  I BELIEVE THAT THE JUDGMENTS BELOW SHOULD BE
REVERSED BECAUSE IT IS CONTRARY TO DUE PROCESS OF LAW TO IMPRISON
APPELLANTS FOR REFUSING TO TESTIFY BEFORE THE DEPUTY FIRE MARSHAL IN
SECRET. 

A SECRET EXAMINATION SUCH AS THE DEPUTY PROPOSED TO CONDUCT IS
FRAUGHT WITH DANGERS OF THE HIGHEST DEGREE TO A WITNESS WHO MAY BE
PROSECUTED ON CHARGES RELATED TO OR RESULTING FROM HIS INTERROGATION. 
UNDER THE LAW OF OHIO IT SEEMS CLEAR THAT ANY STATEMENT ALLEGEDLY
SECURED FROM THE WITNESS MAY BE USED AS EVIDENCE AGAINST HIM AT A
PRELIMINARY EXAMINATION TO JUSTIFY HIS DETENTION, BEFORE A GRAND JURY
TO SECURE HIS INDICTMENT, AND AT THE FORMAL TRIAL TO OBTAIN HIS
CONVICTION.  (FN11)  THE WITNESS HAS NO EFFECTIVE WAY TO CHALLENGE HIS
INTERROGATOR'S TESTIMONY AS TO WHAT WAS SAID AND DONE AT THE SECRET
INQUISITION.  THE OFFICER'S VERSION FREQUENTLY MAY REFLECT AN
INACCURATE UNDERSTANDING OF AN ACCUSED'S STATEMENTS OR, ON OCCASION,
MAY BE DELIBERATELY DISTORTED OR FALSIFIED.  WHILE THE ACCUSED MAY
PROTEST AGAINST THESE MISREPRESENTATIONS, HIS PROTESTATIONS WILL
NORMALLY BE IN VAIN.  THIS IS PARTICULARLY TRUE WHEN THE OFFICER IS
ACCOMPANIED BY SEVERAL OF HIS ASSISTANTS AND THEY ALL VOUCH FOR HIS
STORY.  (FN12)  BUT WHEN THE PUBLIC, OR EVEN THE SUSPECT'S COUNSEL, IS
PRESENT THE HAZARDS TO THE SUSPECT FROM THE OFFICER'S MISUNDERSTANDING
OR TWISTING OF HIS STATEMENTS OR CONDUCT ARE GREATLY REDUCED.  (FN13) 

THE PRESENCE OF LEGAL COUNSEL OR ANY PERSON WHO IS NOT AN EXECUTIVE
OFFICER BENT ON ENFORCING THE LAW PROVIDES STILL ANOTHER PROTECTION TO
THE WITNESS.  BEHIND CLOSED DOORS HE CAN BE COERCED, TRICKED OR
CONFUSED BY OFFICERS INTO MAKING STATEMENTS WHICH MAY BE UNTRUE OR MAY
HIDE THE TRUTH BY CREATING MISLEADING IMPRESSIONS.  WHILE THE WITNESS
IS IN THE CUSTODY OF THE INTERROGATORS, AS A PRACTICAL MATTER, HE IS
SUBJECT TO THEIR UNCONTROLLED WILL.  HERE IT SHOULD BE POINTED OUT THAT
THE OHIO LAW PLACES NO RESTRICTIONS ON WHERE THE INTERROGATIONS CAN BE
HELD OR THEIR DURATION.  EXEMPLIFYING THE ABUSES WHICH MAY OCCUR IN
SECRET PROCEEDINGS, THIS COURT HAS REPEATEDLY HAD BEFORE IT CASES WHERE
CONFESSIONS HAVE BEEN OBTAINED FROM SUSPECTS BY COERCIVE INTERROGATION
IN SECRET.  (FN14)  WHILE THE CIRCUMSTANCES IN EACH OF THESE CASES HAVE
VARIED, IN ALL OF THEM, AS WELL AS IN MANY OTHERS, THE COMMON ELEMENT
HAS BEEN THE SUSPECT'S INTERROGATION BY OFFICERS WHILE HE WAS HELD
INCOMMUNICADO WITHOUT THE PRESENCE OF HIS COUNSEL, HIS FRIENDS OR
RELATIVES, OR THE PUBLIC.  AS WAS SAID IN A CONCURRING OPINION IN HALEY
V. OHIO, 332 U.S. 596, AT 605:  "AN IMPRESSIVE SERIES OF CASES IN THIS
AND OTHER COURTS ADMONISHES OF THE TEMPTATIONS TO ABUSE OF POLICE
ENDEAVORS TO SECURE CONFESSIONS FROM SUSPECTS, THROUGH PROTRACTED
QUESTIONING, CARRIED ON IN SECRECY, WITH THE INEVITABLE DISQUIETUDE AND
FEARS POLICE INTERROGATIONS NATURALLY ENGENDER IN INDIVIDUALS
QUESTIONED WHILE HELD INCOMMUNICADO, WITHOUT THE AID OF COUNSEL AND
UNPROTECTED BY THE SAFEGUARDS OF A JUDICIAL INQUIRY."  (FN15)  NOTHING
WOULD BE BETTER CALCULATED TO PREVENT MISUSE OF OFFICIAL POWER IN
DEALING WITH A WITNESS OR SUSPECT THAN THE SCRUTINY OF HIS LAWYER OR
FRIENDS OR EVEN OF DISINTERESTED BYSTANDERS.  (FN16) 

A WITNESS CHARGED WITH COMMITTING CONTEMPT DURING THE SECRET
INTERROGATION FACES THE GRAVEST HANDICAPS IN DEFENDING AGAINST THIS
CHARGE.  THE INTERROGATING OFFICERS MAY ASSERT THAT HE ENGAGED IN
CERTAIN CONTUMACIOUS BEHAVIOR BEFORE THEM AND SEEK TO IMPRISON HIM. 
EVEN WHEN THE CHARGES ARE TRIED BY SOMEONE OTHER THAN HIS
INTERROGATORS, (FN17) THE ACCUSED'S EFFORTS TO SHOW THAT THE ACTUAL
EVENTS WERE NOT AS PICTURED BY THE INTERROGATING OFFICERS WOULD
NORMALLY BE FUTILE IF HE COULD CALL ON NO ONE TO CORROBORATE HIS
TESTIMONY.  AND WHEN A WITNESS IS DEPRIVED OF THE ADVICE OF COUNSEL HE
MAY BE COMPLETELY UNAWARE THAT HIS CONDUCT HAS CROSSED THE OBSCURE
BOUNDARY AND BECOME CONTEMPTUOUS.   MOREOVER, EXECUTIVE OFFICERS WILL
BE SOMEWHAT MORE CHARY IN EXERCISING THE DANGEROUS CONTEMPT POWER IF
THEIR ACTIONS ARE SUBJECT TO EXTERNAL SCRUTINY. 

I ALSO FIRMLY BELIEVE THAT THE DUE PROCESS CLAUSE REQUIRES THAT A
PERSON INTERROGATED BE ALLOWED TO USE LEGAL COUNSEL WHENEVER HE IS
COMPELLED TO GIVE TESTIMONY TO LAW-ENFORCEMENT OFFICERS WHICH MAY BE
INSTRUMENTAL IN HIS PROSECUTION AND CONVICTION FOR A CRIMINAL OFFENSE. 
THIS COURT HAS REPEATEDLY HELD THAT AN ACCUSED IN A STATE CRIMINAL
PROSECUTION HAS AN UNQUALIFIED RIGHT TO MAKE USE OF COUNSEL AT EVERY
STAGE OF THE PROCEEDINGS AGAINST HIM.  (FN18)  THE BROADER IMPLICATIONS
OF THESE DECISIONS SEEM TO ME TO SUPPORT APPELLANTS' RIGHT TO USE THEIR
COUNSEL WHEN QUESTIONED BY THE DEPUTY FIRE MARSHAL.  IT MAY BE THAT THE
TYPE OF INTERROGATION WHICH THE FIRE MARSHAL AND HIS DEPUTIES ARE
AUTHORIZED TO CONDUCT WOULD NOT TECHNICALLY FIT INTO THE TRADITIONAL
CATEGORY OF FORMAL CRIMINAL PROCEEDINGS, BUT THE SUBSTANTIVE EFFECT OF
SUCH INTERROGATION ON AN EVENTUAL CRIMINAL PROSECUTION OF THE PERSON
QUESTIONED CAN BE SO GREAT THAT HE SHOULD NOT BE COMPELLED TO GIVE
TESTIMONY WHEN HE IS DEPRIVED OF THE ADVICE OF HIS COUNSEL.  IT IS
QUITE POSSIBLE THAT THE CONVICTION OF A PERSON CHARGED WITH ARSON OR A
SIMILAR CRIME MAY BE ATTRIBUTABLE LARGELY TO HIS INTERROGATION BY THE
FIRE MARSHAL.  THE RIGHT TO USE COUNSEL AT THE FORMAL TRIAL IS A VERY
HOLLOW THING WHEN, FOR ALL PRACTICAL PURPOSES, THE CONVICTION IS
ALREADY ASSURED BY PRETRIAL EXAMINATION.  (FN19) 

LOOKING AT THE SUBSTANCE OF THINGS, THE FIRE MARSHAL'S SECRET
INTERROGATION CONTAINS MANY OF THE DANGERS TO AN ACCUSED THAT WOULD BE
PRESENT IF HE WERE PARTIALLY TRIED IN SECRET WITHOUT THE ASSISTANCE OF
COUNSEL FOR "ARSON OR A SIMILAR CRIME."  SUPPOSE THAT AT THE
COMMENCEMENT OF A CRIMINAL TRIAL, THE JUDGE, ACTING UNDER STATUTORY
AUTHORIZATION, EXPELLED EVERYONE FROM THE COURTROOM BUT THE PROSECUTING
ATTORNEY AND HIS ASSISTANTS AND ALLOWED THEM TO QUESTION THE ACCUSED
"PRIVATELY."  AFTER SUCH INTERROGATION THE DOORS WERE THROWN OPEN, THE
JURY RECALLED, AND THE JURORS GIVEN A RESUME OR TRANSCRIPT OF THE
ACCUSED'S PURPORTED TESTIMONY.  AND THEN THE DEFENDANT'S LAWYER, WHO
HAD BEEN EXCLUDED FROM THE SECRET EXAMINATION, WAS ALLOWED TO MAKE SUCH
DEFENSE AS HE COULD.  SURELY NO ONE WOULD CONTEND THAT SUCH A
PROCEEDING WAS DUE PROCESS OF LAW.  YET THE TECHNIQUES AS WELL AS THE
END EFFECTS OF THE FIRE MARSHAL'S SECRET INTERROGATION ARE
SUBSTANTIALLY THE SAME. 

IT IS SAID THAT A WITNESS CAN PROTECT HIMSELF AGAINST SOME OF THE
MANY ABUSES POSSIBLE IN A SECRET INTERROGATION BY ASSERTING THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  BUT THIS PROPOSITION COLLAPSES
UNDER ANYTHING MORE THAN THE MOST SUPERFICIAL CONSIDERATION.  THE
AVERAGE WITNESS HAS LITTLE IF ANY IDEA WHEN OR HOW TO RAISE ANY OF HIS
CONSTITUTIONAL PRIVILEGES.  THERE IS NO REQUIREMENT IN THE OHIO
STATUTES THAT THE FIRE-PREVENTION OFFICERS MUST INFORM THE WITNESS THAT
HE IS PRIVILEGED NOT TO INCRIMINATE HIMSELF.  AND IN VIEW OF THE
INTRICATE POSSIBILITIES OF WAIVER WHICH SURROUND THE PRIVILEGE HE MAY
EASILY UNWITTINGLY WAIVE IT.  (FN20)  IF THE WITNESS IS COERCED OR
MISLED BY HIS INTERROGATORS HE MAY NOT DARE TO RAISE THE PRIVILEGE. 
UNDOUBTEDLY HE WILL BE MADE AWARE THAT HANGING OVER HIS HEAD AT ALL
TIMES IS THE OFFICER'S POWER TO PUNISH HIM FOR CONTEMPT - A POWER WHOSE
LIMITATIONS THE WITNESS WILL NOT UNDERSTAND.  FURTHERMORE, THE FIRE
MARSHAL OR HIS DEPUTIES WOULD SELDOM BE COMPETENT TO DECIDE IF THE
PRIVILEGE HAS BEEN PROPERLY CLAIMED OR, EVEN IF THEY WISH, TO INSTRUCT
THE WITNESS HOW TO MAKE CORRECT USE OF IT. 

TO SUPPORT ITS DECISION THAT OHIO CAN PUNISH A WITNESS FOR REFUSING
TO SUBMIT TO THE FIRE MARSHAL'S SECRET INTERROGATION, THE MAJORITY
PLACES HEAVY RELIANCE ON THE PRACTICE OF EXAMINING WITNESSES BEFORE A
GRAND JURY IN SECRET WITHOUT THE PRESENCE OF THE WITNESS' COUNSEL.  BUT
ANY SURFACE SUPPORT THE GRAND JURY PRACTICE MAY LEND DISAPPEARS UPON
ANALYSIS OF THAT INSTITUTION.  THE TRADITIONAL ENGLISH AND AMERICAN
GRAND JURY IS COMPOSED OF 12 TO 23 MEMBERS SELECTED FROM THE GENERAL
CITIZENRY OF THE LOCALITY WHERE THE ALLEGED CRIME WAS COMMITTED. 
(FN21)  THEY BRING INTO THE GRAND JURY ROOM THE EXPERIENCE, KNOWLEDGE
AND VIEWPOINT OF ALL SECTIONS OF THE COMMUNITY.  THEY HAVE NO AXES TO
GRIND AND ARE NOT CHARGED PERSONALLY WITH THE ADMINISTRATION OF THE
LAW.  NO ONE OF THEM IS A PROSECUTING ATTORNEY OR LAW-ENFORCEMENT
OFFICER FERRETING OUT CRIME.  IT WOULD BE VERY DIFFICULT FOR OFFICERS
OF THE STATE SERIOUSLY TO ABUSE OR DECEIVE A WITNESS IN THE PRESENCE OF
THE GRAND JURY.  SIMILARLY THE PRESENCE OF THE JURORS OFFERS A
SUBSTANTIAL SAFEGUARD AGAINST THE OFFICERS' MISREPRESENTATION,
UNINTENTIONAL OR OTHERWISE, OF THE WITNESS' STATEMENTS AND CONDUCT
BEFORE THE GRAND JURY.  THE WITNESS CAN CALL ON THE GRAND JURORS IF
NEED BE FOR THEIR NORMALLY UNBIASED TESTIMONY AS TO WHAT OCCURRED
BEFORE THEM. 

THE MAJORITY ALSO RELIES ON A SUPPOSED PROPOSITION THAT THERE IS NO
RIGHT TO USE COUNSEL IN AN ADMINISTRATIVE INVESTIGATION.  (FN22)  HERE
IT IS RELEVANT AND SIGNIFICANT TO POINT OUT THAT IN 1946 CONGRESS
SPECIFICALLY REQUIRED IN THE ADMINISTRATIVE PROCEDURE ACT THAT: 

"ANY PERSON COMPELLED TO APPEAR IN PERSON BEFORE ANY AGENCY OR
REPRESENTATIVE THEREOF SHALL BE ACCORDED THE RIGHT TO BE ACCOMPANIED,
REPRESENTED, AND ADVISED BY COUNSEL OR, IF PERMITTED BY THE AGENCY, BY
OTHER QUALIFIED REPRESENTATIVE."  (FN23) 

IN REPORTING THE BILL WHICH WAS SUBSTANTIALLY ENACTED AS THE
ADMINISTRATIVE PROCEDURE ACT THE SENATE JUDICIARY COMMITTEE UNANIMOUSLY
DECLARED: 

"BY ENACTING THIS BILL, THE CONGRESS - EXPRESSING THE WILL OF THE
PEOPLE - WILL BE LAYING DOWN FOR THE GUIDANCE OF ALL BRANCHES OF THE
GOVERNMENT AND ALL PRIVATE INTERESTS IN THE COUNTRY A POLICY RESPECTING
THE MINIMUM REQUIREMENTS OF FAIR ADMINISTRATIVE PROCEDURE."  (FN24) 
AND THE HOUSE JUDICIARY COMMITTEE IN REPORTING THE HOUSE VERSION OF THE
ADMINISTRATIVE PROCEDURE ACT STATED: 

"THE BILL IS AN OUTLINE OF MINIMUM ESSENTIAL RIGHTS AND PROCEDURES." 
(FN25) 

HERETOFORE THIS COURT HAS NEVER HELD AND I WOULD NEVER AGREE THAT AN
ADMINISTRATIVE AGENCY CONDUCTING AN INVESTIGATION COULD VALIDLY COMPEL
A WITNESS TO APPEAR BEFORE IT AND TESTIFY IN SECRET WITHOUT THE
ASSISTANCE OF HIS COUNSEL. 

IN ANY EVENT, THE INVESTIGATIONS AUTHORIZED BY THE OHIO STATUTES ARE
FAR MORE THAN MERE ADMINISTRATIVE INQUIRIES FOR SECURING INFORMATION
USEFUL GENERALLY IN THE PREVENTION OF FIRES.  RATHER, THESE STATUTES
COMMAND ACTION WITH A VIEW TOWARD THE APPREHENSION AND PROSECUTION OF
PERSONS BELIEVED GUILTY OF CERTAIN CRIMES.  THE MARSHAL OR HIS DEPUTIES
MAY COMPEL A PERSON SUSPECTED OF ARSON OR A SIMILAR OFFENSE - AS
APPELLANTS APPARENTLY WERE - TO APPEAR AND GIVE TESTIMONY UNDER OATH. 
AND AS PREVIOUSLY INDICATED ANY STATEMENT ELICITED FROM SUCH PERSON MAY
BE USED AS EVIDENCE AGAINST HIM.  ONCE TESTIMONY HAS BEEN TAKEN FROM A
SUSPECT THE DUTIES OF THE MARSHAL AND HIS DEPUTIES ARE NOT AT AN END. 
THEY MUST ARREST THE WITNESS IF THEY BELIEVE THAT THE EVIDENCE IS
SUFFICIENT TO CHARGE HIM WITH CERTAIN CRIMES.  ALL TESTIMONY TAKEN FROM
HIM AND ALL OTHER EVIDENCE MUST BE TURNED OVER TO THE PROSECUTING
ATTORNEY.  THE FIRE MARSHAL AND HIS DEPUTY IN CHARGE OF THE "ARSON
BUREAU" ARE SPECIFICALLY MADE "  ...  RESPONSIBLE  ...  FOR THE
PROSECUTION OF PERSONS BELIEVED TO BE GUILTY OF ARSON OR A SIMILAR
CRIME."  THE FOREGOING CLEARLY DEMONSTRATES THAT THE FIRE MARSHAL'S
INTERROGATION IS, AND APPARENTLY WAS INTENDED TO BE, AN IMPORTANT AND
INTEGRAL PART IN THE PROSECUTION OF THE PERSONS FOR ARSON OR A SIMILAR
CRIME.  (FN26)  THE RIGHTS OF A PERSON WHO IS EXAMINED IN CONNECTION
WITH SUCH CRIMES SHOULD NOT BE DESTROYED MERELY BECAUSE THE INQUIRY IS
GIVEN THE EUPHONIOUS LABEL "ADMINISTRATIVE."  (FN27) 

FINALLY IT IS ARGUED THAT THE FIRE MARSHAL AND HIS DEPUTIES SHOULD
HAVE THE RIGHT TO EXCLUDE COUNSEL AND SUCH OTHER PERSONS AS THEY CHOOSE
SO THAT THEIR "INVESTIGATORY PROCEEDINGS" WILL NOT BE "UNDULY
ENCUMBERED."  FROM ALL THAT APPEARS THE PRIMARY MANNER IN WHICH THE
PRESENCE OF COUNSEL OR THE PUBLIC WOULD "ENCUMBER" THE INTERROGATION
WOULD BE BY PROTECTING THE LEGITIMATE RIGHTS OF THE WITNESS.  (FN28)
IT IS UNDENIABLE THAT LAW-ENFORCEMENT OFFICERS COULD RACK UP MORE
CONVICTIONS IF THEY WERE NOT "HAMPERED" BY THE DEFENDANT'S COUNSEL OR
THE PRESENCE OF OTHERS WHO MIGHT REPORT TO THE PUBLIC THE MANNER IN
WHICH PEOPLE WERE BEING CONVICTED.  (FN29)  BUT THE PROCEDURAL
SAFEGUARDS DEEMED ESSENTIAL FOR DUE PROCESS HAVE BEEN IMPOSED
DELIBERATELY WITH FULL KNOWLEDGE THAT THEY WILL OCCASIONALLY IMPEDE THE
CONVICTION OF PERSONS SUSPECTED OF CRIME. 

THE MAJORITY STATES THAT "WITH SO WEIGHTY A PUBLIC INTEREST AS FIRE
PREVENTION TO PROTECT," THEY CANNOT HOLD THAT IT VIOLATES THE DUE
PROCESS CLAUSE TO COMPEL A WITNESS TO TESTIFY AT A SECRET PROCEEDING. 
BUT IS THE PUBLIC'S INTEREST IN FIRE PREVENTION SO WEIGHTY THAT IT
REQUIRES DENYING THE PERSON INTERROGATED THE BASIC PROCEDURAL
SAFEGUARDS ESSENTIAL TO JUSTICE?  SUPPOSE THAT OHIO AUTHORIZED THE
CHIEF OF STATE POLICE AND HIS DEPUTIES TO INQUIRE INTO THE CAUSES AND
CIRCUMSTANCES OF CRIME GENERALLY AND GAVE THEM POWER TO COMPEL
WITNESSES OR PERSONS SUSPECTED OF CRIME TO APPEAR AND GIVE TESTIMONY IN
SECRET.  SINCE THE PUBLIC'S INTEREST IN CRIME PREVENTION IS AT LEAST AS
GREAT AS ITS INTEREST IN FIRE PREVENTION, THE REASONING USED IN THE
MAJORITY'S OPINION WOULD LEAD TO THE APPROVAL OF SUCH MEANS OF "LAW
ENFORCEMENT."  IN FACT, THE OPINION COULD READILY BE APPLIED TO
SANCTION A GRANT OF SIMILAR POWER TO EVERY STATE TROOPER, POLICEMAN,
SHERIFF, MARSHAL, CONSTABLE, FBI AGENT, PROSECUTING ATTORNEY,
IMMIGRATION OFFICIAL, (FN30) NARCOTICS AGENT, HEALTH OFFICER,
SANITATION INSPECTOR, BUILDING INSPECTOR, TAX COLLECTOR, CUSTOMS
OFFICER AND TO ALL THE OTHER COUNTLESS STATE AND FEDERAL OFFICIALS WHO
HAVE AUTHORITY TO INVESTIGATE VIOLATIONS OF THE LAW.  (FN31)  I BELIEVE
THAT THE MAJORITY OPINION OFFERS A COMPLETELY NOVEL AND EXTREMELY
DANGEROUS PRECEDENT - ONE THAT COULD BE USED TO DESTROY A SOCIETY OF
LIBERTY UNDER LAW AND TO ESTABLISH IN ITS PLACE AUTHORITARIAN
GOVERNMENT. 

NO ONE DISPUTES THAT OHIO HAS A GREAT INTEREST IN THE ENFORCEMENT OF
ITS FIRE LAWS.  BUT THERE IS NOTHING WHICH SUGGESTS THAT IT IS
ESSENTIAL TO ADEQUATE ENFORCEMENT OF THESE LAWS TO GIVE THE FIRE
MARSHAL AND HIS DEPUTIES THE EXTREME POWERS OF INTERROGATION WHICH THEY
PROPOSED TO EXERCISE HERE.  THIS METHOD OF LAW ENFORCEMENT HAS
HERETOFORE BEEN DEEMED INCONSISTENT WITH OUR SYSTEM OF JUSTICE.  AS MR.
JUSTICE FRANKFURTER SAID IN ANNOUNCING THE COURT'S JUDGMENT IN WATTS V.
INDIANA, 338 U.S. 49, AT 54: 

"OURS IS THE ACCUSATORIAL AS OPPOSED TO THE INQUISITORIAL SYSTEM. 
SUCH HAS BEEN THE CHARACTERISTIC OF ANGLO-AMERICAN CRIMINAL JUSTICE
SINCE IT FREED ITSELF FROM PRACTICES BORROWED BY THE STAR CHAMBER FROM
THE CONTINENT WHEREBY AN ACCUSED WAS INTERROGATED IN SECRET FOR HOURS
ON END ...  .  UNDER OUR SYSTEM SOCIETY CARRIES THE BURDEN OF PROVING
ITS CHARGE AGAINST THE ACCUSED NOT OUT OF HIS OWN MOUTH.  IT MUST
ESTABLISH ITS CASE, NOT BY INTERROGATION OF THE ACCUSED EVEN UNDER
JUDICIAL SAFEGUARDS, BUT BY EVIDENCE INDEPENDENTLY SECURED THROUGH
SKILLFUL INVESTIGATION."  (FN32) 

SECRET INQUISITIONS ARE DANGEROUS THINGS JUSTLY FEARED BY FREE MEN
EVERYWHERE.  (FN33)  THEY ARE THE BREEDING PLACE FOR ARBITRARY MISUSE
OF OFFICIAL POWER.  THEY ARE OFTEN THE BEGINNING OF TYRANNY AS WELL AS
INDISPENSABLE INSTRUMENTS FOR ITS SURVIVAL.  MODERN AS WELL AS ANCIENT
HISTORY BEARS WITNESS THAT BOTH INNOCENT AND GUILTY HAVE BEEN SEIZED BY
OFFICERS OF THE STATE AND WHISKED AWAY FOR SECRET INTERROGATION OR
WORSE UNTIL THE GROUNDWORK HAS BEEN SECURELY LAID FOR THEIR INEVITABLE
CONVICTION.  WHILE THE LABELS APPLIED TO THIS PRACTICE HAVE FREQUENTLY
CHANGED, THE CENTRAL IDEA WHEREVER AND WHENEVER CARRIED OUT REMAINS
UNCHANGING - EXTRACTION OF "STATEMENTS" BY ONE MEANS OR ANOTHER FROM AN
INDIVIDUAL BY OFFICERS OF THE STATE WHILE HE IS HELD INCOMMUNICADO.  I
REITERATE MY BELIEF THAT IT VIOLATES THE DUE PROCESS CLAUSE TO COMPEL A
PERSON TO ANSWER QUESTIONS AT A SECRET INTERROGATION WHERE HE IS DENIED
LEGAL ASSISTANCE AND WHERE HE IS SUBJECT TO THE UNCONTROLLED AND
INVISIBLE EXERCISE OF POWER BY GOVERNMENT OFFICIALS.  SUCH PROCEDURES
ARE A GRAVE THREAT TO THE LIBERTIES OF A FREE PEOPLE. 

FN1  JAMES OTIS USED THIS PHRASE IN DENOUNCING THE WRITS OF
ASSISTANCE AND GENERAL WARRANTS IN HIS FAMOUS ARGUMENT IN PAXTON'S
CASE.  2 THE WORKS OF JOHN ADAMS (BOSTON 1850), APP. 524. 

FN2  IN RE OLIVER, 333 U.S. 257, 273. 

FN3  POWELL V. ALABAMA, 287 U.S. 45, 69. 

FN4  PAGE'S OHIO REV. CODE, 1953, SECS. 3737.11, 3737.12. 

FN5  ID., SECS. 3737.12, 3737.99(A). 

FN6  ID., SEC. 3737.13. 

FN7  ID., SEC. 3737.10. 

FN8  ID., SEC. 3737.10. 

FN9  ID., SEC. 3737.02. 

FN10  I WOULD ALSO REVERSE THE DECISION BELOW BECAUSE APPELLANTS WERE
FOUND GUILTY OF CONTEMPT AND SENTENCED TO JAIL IN A PROCEEDING WHERE
THEY WERE DENIED THE BENEFIT OF COUNSEL.  THIS COURT HAS EXPRESSLY HELD
THAT A PERSON CHARGED WITH CONTEMPT HAS A CONSTITUTIONAL RIGHT TO BE
HEARD THROUGH COUNSEL OF HIS OWN CHOOSING AT A TRIAL ON THE CONTEMPT
CHARGE.  IN RE OLIVER, 333 U.S. 257.  WHILE THE MAJORITY REFUSES TO ACT
ON THE DENIAL HERE BY CLAIMING THAT APPELLANTS FAILED TO CHALLENGE IT
IN THE OHIO SUPREME COURT OR IN THEIR APPEAL TO THIS COURT, THE RECORD
CONVINCES ME THAT THE MATTER HAS BEEN PROPERLY RAISED FOR OUR
CONSIDERATION.  WHEN A PERSON IS TO BE IMPRISONED AS THE RESULT OF A
PROCEEDING IN WHICH HE WAS DENIED HIS CONSTITUTIONAL RIGHTS, WE SHOULD
NOT BE ANXIOUS TO CONCLUDE THAT HE HAS FAILED TO RAISE THE
CONSTITUTIONAL QUESTIONS IN THE CORRECT PROCEDURAL FORM.  CF. AETNA
INS. CO. V. KENNEDY, 301 U.S. 389, 393; HODGES V. EASTON, 106 U.S. 408,
412. 

FN11  SEE GENERALLY 15 OHIO JUR.  2D, CRIMINAL LAW SEC. 388. 

FN12  IN THIS RESPECT IT IS IMPORTANT TO NOTE THAT UNDER THE OHIO
STATUTES THE FIRE MARSHAL OR HIS DEPUTIES MAY PERMIT SUCH PERSONS AS
THEY WISH TO ATTEND THE INTERROGATION. 

FN13  THIS HAS BEEN RECOGNIZED FROM ANCIENT TIMES.  AS SAID IN
MATTHEW 18:15-16: 

"MOREOVER IF THY BROTHER SHALL TRESPASS AGAINST THEE, GO AND TELL HIM
HIS FAULT BETWEEN THEE AND HIM ALONE; IF HE SHALL HEAR THEE, THOU HAST
GAINED THY BROTHER.  BUT IF HE WILL NOT HEAR THEE, THEN TAKE WITH THEE
ONE OR TWO MORE, THAT IN THE MOUTH OF TWO OR THREE WITNESSES EVERY WORD
MAY BE ESTABLISHED." 

BLACKSTONE MANY CENTURIES LATER NOTED THAT: 

"THE OPEN EXAMINATION OF WITNESSES VIVA VOCE, IN THE PRESENCE OF ALL
MANKIND, IS MUCH MORE CONDUCIVE TO THE CLEARING UP OF TRUTH, THAN THE
PRIVATE AND SECRET EXAMINATION TAKEN DOWN IN WRITING BEFORE AN OFFICER,
OR HIS CLERK  ...  .  THERE AN ARTFUL OR CARELESS SCRIBE MAY MAKE A
WITNESS SPEAK WHAT HE NEVER MEANT  ...  ."  3 BLACKSTONE COMMENTARIES
373. 

AND BENTHAM SUBSEQUENTLY POINTED OUT: 

"IN CASE OF REGISTRATION AND RECORDATION OF THE EVIDENCE, PUBLICITY
SERVES AS A SECURITY FOR THE CORRECTNESS IN EVERY RESPECT (COMPLETENESS
INCLUDED) OF THE WORK OF THE REGISTRATOR. 

"IN CASE OF MATERIAL INCORRECTNESS, WHETHER BY DESIGN OR
INADVERTENCE, - SO MANY AUDITORS PRESENT ...  ANY OR EACH OF WHOM MAY
EVENTUALLY BE CAPABLE OF INDICATING, IN THE CHARACTER OF A WITNESS, THE
EXISTENCE OF THE ERROR, AND THE TENOR (OR AT LEAST THE PURPORT) OF THE
ALTERATION REQUISITE FOR THE CORRECTION OF IT."  1 BENTHAM, RATIONALE
OF JUDICIAL EVIDENCE (1827), 523. 

FN14  SEE, E.G., FIKES V. ALABAMA, 352 U.S. 191; LEYRA V. DENNO, 347
U.S. 556; WATTS V. INDIANA, 338 U.S. 49; TURNER V. PENNSYLVANIA, 338
U.S. 62; HARRIS V. SOUTH CAROLINA, 338 U.S. 68; HALEY V. OHIO, 332 U.S.
596; MALINSKI V. NEW YORK, 324 U.S. 401; ASHCRAFT V. TENNESSEE, 322
U.S. 143; WARD V. TEXAS, 316 U.S. 547; WHITE V. TEXAS, 310 U.S. 530;
CHAMBERS V. FLORIDA, 309 U.S. 227.  FOR A DISCUSSION OF THE DANGERS AND
ABUSES ARISING FROM THE SECRET INTERROGATION OF SUSPECTS BY POLICE SEE
THE REPORT OF THE AMERICAN BAR ASSOCIATION'S COMMITTEE ON LAWLESS
ENFORCEMENT OF THE LAW, AUG. 19, 1930.  1 AM. J. POLICE SCIENCE 575. 

FN15  IN UNITED STATES V. MINKER, 350 U.S. 179, THE COURT, AT P. 188,
POINTED OUT WITH REGARD TO PROPOSED EXAMINATIONS BY IMMIGRATION
OFFICERS THAT: 

"IT DOES NOT BESPEAK DEPRECATION OF OFFICIAL ZEAL, NOR DOES IT BRING
INTO QUESTION DISINTERESTEDNESS, TO CONCLUDE THAT COMPULSORY EX PARTE
ADMINISTRATIVE EXAMINATIONS, UNTRAMMELLED BY THE SAFEGUARDS OF A PUBLIC
ADVERSARY JUDICIAL PROCEEDING, AFFORD TOO READY OPPORTUNITIES FOR
UNHAPPY CONSEQUENCES TO PROSPECTIVE DEFENDANTS IN DENATURALIZATION
SUITS." 

FN16  IT SEEMS WHOLLY IMPROPER TO "WAIT AND SEE" IN EACH CASE WHETHER
A WITNESS HAS BEEN COERCED OR TRICKED INTO GIVING INVOLUNTARY
STATEMENTS AT THE SECRET INTERROGATION AND THEN TO SET ASIDE
CONVICTIONS WHICH MAY BE BASED ON SUCH STATEMENTS.  THIS "ABUSE-BY
ABUSE" APPROACH FAILS TO GIVE THE PERSON INTERROGATED SUFFICIENT
PROTECTION.  USUALLY HE HAS NO SUBSTANTIAL CHANCE OF SHOWING THAT THE
ONE OR MORE INTERROGATORS USED IMPROPER MEANS TO ELICIT INVOLUNTARY
STATEMENTS FROM HIM.  ONLY IN THE MOST EXTREME CASES WILL THIS COURT,
OR ANY OTHER, BE ABLE TO FIND THAT STATEMENTS WERE MADE INVOLUNTARILY
IN THE FACE OF THE INTERROGATING OFFICERS' TESTIMONY THAT THEY WERE
SPONTANEOUS AND FREELY GIVEN.  APPARENTLY IN OHIO, AS IN MOST
JURISDICTIONS, THE SUSPECT FACES THE ADDITIONAL OBSTACLE THAT HIS
ALLEGED STATEMENTS ARE PRESUMED TO BE VOLUNTARY AND HE HAS THE BURDEN
OF PROVING THAT THEY WERE NOT.  SEE 15 OHIO JUR.  2D, CRIMINAL LAW SEC.
387.  IN THE FEW CASES WHERE A PERSON INTERROGATED COULD PROVE THAT HIS
STATEMENTS WERE MADE INVOLUNTARILY HE WILL STILL BE SUBJECTED TO
CONSIDERABLE EXPENSE, INCONVENIENCE AND UNFAVORABLE PUBLICITY.  MORE
IMPORTANT, HE WILL ALREADY HAVE SUFFERED MISTREATMENT AT THE HANDS OF
HIS INTERROGATORS. 

FN17  HERE, OF COURSE, THE INTERROGATORS WERE AUTHORIZED TO TRY THE
CHARGES OF CONTEMPT WHICH THEY PREFERRED. 

FN18  SEE, E.G., POWELL V. ALABAMA, 287 U.S. 45; CHANDLER V. FRETAG,
348 U.S. 3. 

FN19  THIS WAS RECOGNIZED IN EX PARTE SULLIVAN, 107 F. SUPP. 514. 
THERE TWO PERSONS SUSPECTED OF CRIME HAD BEEN EXAMINED BY LAW
ENFORCEMENT OFFICERS IN SECRET WITHOUT THE PRESENCE OF COUNSEL AND HAD
BEEN TRICKED INTO MAKING STATEMENTS WHICH WERE INSTRUMENTAL IN THEIR
CONVICTION.  AT PP. 517-518, THE DISTRICT JUDGE OBSERVED: 

"IN VIEW OF POWELL V. ALABAMA, 287 U.S. 45, TO MENTION BUT ONE OF
MANY CASES, UNQUESTIONABLY PETITIONERS WERE ENTITLED TO HAVE EFFECTIVE
COUNSEL AT THE TRIAL.  THE QUESTION HERE IS HOW THEY EVER COULD HAVE
HAD EFFECTIVE COUNSEL AT THE TRIAL, NO MATTER HOW SKILLED, IN VIEW OF
WHAT WENT ON BEFORE TRIAL.  THEY WERE DENIED EFFECTIVE COUNSEL AT THE
TRIAL ITSELF BECAUSE OF WHAT WENT ON BEFORE TRIAL WHILE THE DEFENDANTS
WERE WITHOUT COUNSEL, AND ABSOLUTELY UNDER THE CONTROL OF THE
PROSECUTION  ...  .  ONE CAN IMAGINE A CYNICAL PROSECUTOR SAYING: 'LET
THEM HAVE THE MOST ILLUSTRIOUS COUNSEL, NOW.  THEY CAN'T ESCAPE THE
NOOSE.  THERE IS NOTHING THAT COUNSEL CAN DO FOR THEM AT THE TRIAL.'" 

ALSO SEE JACKSON, J., CONCURRING IN WATTS V. INDIANA, 338 U.S. 49,
57. 

FN20  SEE, E.G., ROGERS V. UNITED STATES, 340 U.S. 367. 

FN21  ALL OF THE CASES CITED BY THE MAJORITY AS AUTHORITY FOR THE
PRACTICE BEFORE GRAND JURIES APPARENTLY INVOLVED A TRADITIONAL GRAND
JURY.  IT HAS BEEN SUGGESTED THAT A STATE CAN CONSTITUTIONALLY PROVIDE
FOR GRAND JURIES COMPOSED OF LESS THAN 12 PERSONS.  SEE IN RE
MURCHISON, 349 U.S. 133, 139, 140 (DISSENTING OPINION); IN RE OLIVER,
333 U.S. 257, 283, 283-284 (DISSENTING OPINION).  EVEN IF THIS
SUGGESTION IS CORRECT IT CERTAINLY DOES NOT FOLLOW THAT A STATE CAN
DESIGNATE ONE OR MORE OF ITS LAW-ENFORCEMENT OFFICERS AS A GRAND JURY
AND CONSTITUTIONALLY GIVE THEM POWER TO COMPEL WITNESSES TO APPEAR AND
GIVE TESTIMONY IN SECRET WITHOUT THE PRESENCE OF COUNSEL.  THIS POINT
WAS EXPRESSLY NOT CONSIDERED IN IN RE OLIVER, SUPRA, AT 265.  SUCH
POWER IN THE HANDS OF LAW-ENFORCEMENT OFFICERS IS EQUALLY OBNOXIOUS TO
DUE PROCESS WHETHER THEY ARE STYLED AS A GRAND JURY, AS FIRE-PREVENTION
OFFICERS OR SIMPLY AS POLICEMEN.    FN22  THE ONLY AUTHORITIES OFFERED
BY THE MAJORITY AS SUPPORT FOR THIS PROPOSITION ARE THREE LOWER FEDERAL
COURT DECISIONS. 

FN23  5 U.S.C. SEC. 1005(A).    FN24  S. REP. NO. 752, 79TH CONG.,
1ST SESS. 31. 

FN25  H.R. REP. NO. 1980, 79TH CONG., 2D SESS. 16. 

FN26  IT SEEMS HIGHLY UNREALISTIC TO EQUATE THIS INTERROGATION WITH A
PROCEEDING INVOLVING A CLAIM FOR WORKMEN'S COMPENSATION. 

FN27  NOR SHOULD THEY BE DEFEATED BECAUSE THE FIRE MARSHAL AND HIS
DEPUTIES ARE GIVEN OTHER DUTIES BESIDES INVESTIGATING FIRES TO
DETERMINE IF ANY CRIMINALITY IS INVOLVED.  FOR OBVIOUS REASONS THESE
OTHER RESPONSIBILITIES DO NOT MAKE THE INTERROGATION PROPOSED HERE ANY
LESS OBJECTIONABLE. 

FN28  PERHAPS, IF A REAL NEED COULD BE SHOWN, COUNSEL COULD BE
RESTRICTED TO ADVISING HIS CLIENT AND PROHIBITED FROM MAKING STATEMENTS
OR ASKING QUESTIONS.  AND THERE ARE OTHER ALTERNATIVES, MUCH LESS
DRASTIC AND PREJUDICIAL TO THE WITNESS THAN THE COMPLETE EXCLUSION OF
HIS COUNSEL, WHICH MIGHT PROVIDE SATISFACTORY PROTECTION FOR THE
WITNESS WITHOUT UNDULY IMPAIRING THE EFFICIENCY OF THE EXAMINATION. 

FN29  AS BENTHAM SAID OF CRIMINAL PROCEEDINGS: 

"WITHOUT PUBLICITY, ALL OTHER CHECKS ARE INSUFFICIENT:  IN COMPARISON
OF PUBLICITY, ALL OTHER CHECKS ARE OF SMALL ACCOUNT.  RECORDATION,
APPEAL, WHATEVER OTHER INSTITUTIONS MIGHT PRESENT THEMSELVES IN THE
CHARACTER OF CHECKS, WOULD BE FOUND TO OPERATE RATHER AS CLOAKS THAN
CHECKS; AS CLOAKS IN REALITY, AS CHECKS ONLY IN APPEARANCE."  1
BENTHAM, RATIONALE OF JUDICIAL EVIDENCE (1827), 524. 

FN30  SEE UNITED STATES V. MINKER, 350 U.S. 179. 

FN31  THE COURT'S OPINION DOES NOT DENY THAT SECRET INQUISITORIAL
POWERS COULD BE GIVEN SUCH LAW-ENFORCEMENT OFFICERS.  A CONCURRING
OPINION SUGGESTS THAT THE GRANT OF SUCH BROAD POWER MIGHT BE
UNCONSTITUTIONAL SO FAR AS A DISTRICT ATTORNEY IS CONCERNED.  HOWEVER
IF POLICEMEN IN GENERAL COULD CONSTITUTIONALLY SUBJECT PERSONS TO
SECRET COMPULSORY INTERROGATION, HOW CAN IT BE SAID THAT A DISTRICT
ATTORNEY COULD NOT?  FOR CONSTITUTIONAL PURPOSES I CAN SEE NO MEANS OF
DISTINGUISHING THIS OHIO FIRE POLICEMAN FROM ANY OTHER POLICEMAN OR LAW
ENFORCEMENT OFFICER.  ANY ATTEMPTED CONSTITUTIONAL DISTINCTION BETWEEN
THESE VARIOUS LAW-ENFORCEMENT OFFICERS WOULD BE PURELY ARTIFICIAL.  THE
CONSTITUTIONALITY OF THE OHIO LAW AUTHORIZING SECRET INTERROGATION BY
FIRE MARSHALS ACTING AS POLICEMEN IN ARSON CASES SHOULD NOT BE RESTED
ON A CONJECTURE THAT SUCH AN ARTIFICIAL DISTINCTION WILL BE DRAWN BY
THIS COURT AT SOME FUTURE DAY. 

FN32  A SURVEY OF BRITISH LAW REVEALS NOTHING WHICH IS EQUIVALENT TO
THE TYPE OF EXAMINATION THAT THE OHIO FIRE MARSHAL IS ALLOWED TO
CONDUCT.  OFFICIAL INQUIRIES INTO THE CAUSE OF FIRES ARE GENERALLY MADE
BY THE POLICE.  "WHEN THE POLICE ARE INQUIRING INTO A CASE, THEY HAVE
NO POWER TO COMPEL ANYONE TO GIVE THEM INFORMATION; A WITNESS MAY BE
COMPELLED TO ATTEND A COURT AND THERE GIVE EVIDENCE, BUT BEFORE
PROCEEDINGS ARE ACTUALLY BROUGHT HE CAN REFUSE TO SAY A WORD." 
JACKSON, THE MACHINERY OF JUSTICE IN ENGLAND (2D ED. 1953), 137.  AND
IN 1929 THE REPORT OF THE ROYAL COMMISSION ON POLICE POWERS AND
PROCEDURE AT P. 118 RECOMMENDED THAT "A RIGID INSTRUCTION SHOULD BE
ISSUED TO THE POLICE THAT NO QUESTIONING OF A PRISONER, OR A 'PERSON IN
CUSTODY,' ABOUT ANY CRIME OR OFFENCE WITH WHICH HE IS, OR MAY BE,
CHARGED, SHOULD BE PERMITTED."  IT IS DOUBTFUL IF ANY STATEMENTS
OBTAINED BY THE POLICE BY SECRET INTERROGATION OF A SUSPECT WOULD BE
ADMITTED IN EVIDENCE IN A SUBSEQUENT TRIAL.  SEE REX V. GRAYSON, 16
CRIM. APP. R. 7 (1921); 43 HARV. L. REV. 618; 43 KY. L. REV. 403. 

IN FRANCE OFFICIAL INQUIRIES INTO FIRES ARE CARRIED OUT AS PART OF
THE GENERAL SYSTEM OF INVESTIGATING CRIMES.  THE PRELIMINARY
INVESTIGATION IS UNDER THE CONTROL OF THE PUBLIC PROSECUTOR AND IS
CONDUCTED BY THE POLICE.  THEY HAVE NO AUTHORITY TO EXAMINE UNWILLING
WITNESSES.  THE INTERROGATION OF SUCH WITNESSES AND OF SUSPECTS IS THE
FUNCTION OF THE JUGE D'INSTRUCTION, WHO IS A JUDGE WITH LEGAL
TRAINING.  PRIOR TO 1897 HE HAD BROAD POWER TO EXAMINE A WITNESS UNDER
OATH IN SECRET WITHOUT COUNSEL.  SEE PLOSCOWE, DEVELOPMENT OF
INQUISITORIAL AND ACCUSATORIAL ELEMENTS IN FRENCH PROCEDURE, 23 J.
CRIM. L. & CRIMINOLOGY 372.  IN 1882 STEPHEN COMMENTED ON THESE SECRET
PROCEEDINGS AS FOLLOWS: 

"TO A PERSON ACCUSTOMED TO THE ENGLISH SYSTEM AND TO ENGLISH WAYS OF
THINKING AND FEELING  ... THE FRENCH SYSTEM WOULD BE UTTERLY
INTOLERABLE IN ENGLAND.  THE SUBSTITUTION OF A SECRET INTERROGATION FOR
OUR OPEN INVESTIGATION BEFORE THE COMMITTING MAGISTRATE WOULD APPEAR TO
US TO POISON JUSTICE AT ITS SOURCE."  1 STEPHEN, HISTORY OF THE
CRIMINAL LAW OF ENGLAND (1883), 565. 

IN RESPONSE TO WIDESPREAD DEMANDS FRENCH LAW WAS CHANGED IN 1897 TO
GRANT A WITNESS APPEARING BEFORE THE JUGE D'INSTRUCTION THE RIGHT TO
COUNSEL.  M. CONSTANS, ONE OF THE SPONSORS OF THE LAW IN THE FRENCH
SENATE, SAID:  "THE JUGE D'INSTRUCTION IS LIKE OTHER FUNCTIONARIES.  HE
MUST BE CONTROLLED  ...  THE PRESENCE OF THE LAWYER WILL OF ITSELF  ...
PREVENT HIM FROM DOING ANYTHING BUT HIS DUTY."  QUOTED IN PLOSCOWE,
SUPRA, AT 381.  SEE ALSO ESMEIN, HISTORY OF CONTINENTAL CRIMINAL
PROCEDURE (1913); KEEDY, THE PRELIMINARY INVESTIGATION OF CRIME IN
FRANCE, 88 U. PA. L. REV. 692. 

FN33  A LEADING ITALIAN JURIST RECENTLY SAID: 

"THE RIGHT TO COUNSEL, WITHOUT WHICH THE RIGHT TO DEFEND ONESELF IS
OF NO PRACTICAL MEANING, DOES NOT EXIST DURING THE FIRST PHASE OF THE
CRIMINAL PROCESS IN THOSE SYSTEMS IN WHICH THE PRE-TRIAL PHASE IS
CARRIED OUT IN SECRET WITHOUT THE PRESENCE OF DEFENSE COUNSEL.  THIS IS
THE PHASE IN WHICH THE ACCUSED, ALONE AND UNDEFENDED BEFORE THE
EXAMINING MAGISTRATE, MAY BE UNABLE TO FIND IN HIS OWN INNOCENCE
SUFFICIENT STRENGTH TO RESIST THE EFFECTS OF PROLONGED QUESTIONING, AND
IN ORDER TO PUT AN END TO HIS ORDEAL MAY BE REDUCED TO SIGNING A
CONFESSION TO A CRIME HE HAS NOT COMMITTED.  UNFORTUNATELY, ITALIAN
CRIMINAL PROCEDURE RETAINS THIS SAD INHERITANCE FROM AN ERA OF TYRANNY,
WHICH IS UNRECONCILABLE WITH RESPECT FOR THE HUMAN PERSONALITY  ...  . 

     *         *         *         *         * 

"IN CRIMINAL PROCEDURE AS WE SEE IT APPLIED, THE ACCUSED IS STILL AN
INERT OBJECT AT THE MERCY OF THE INQUISITOR'S VIOLENCE  ...  .  HELD
INCOMMUNICADO DURING THE PERIOD OF QUESTIONING, THE ACCUSED IS ALONE
WITH HIS EXAMINERS, WITHOUT AID OF COUNSEL; TORTURE, ALTHOUGH FORMALLY
ABOLISHED, HAS RETURNED UNDER NEW GUISES MORE SCIENTIFIC BUT
NONETHELESS CRUEL:  THE THIRD DEGREE, ENDLESS HOURS OF INCESSANT
QUESTIONING, TRUTH SERUM."  CALAMANDREI, PROCEDURE AND DEMOCRACY (ADAMS
TRANSL.  1956), 93-94, 102-103. 
..END :





















POLLARD V. UNITED STATES 352 U.S. 354 


NO. 38.  ARGUED DECEMBER 3, 1956 - DECIDED FEBRUARY 25, 1957 -
AFFIRMED. 


AFTER PETITIONER HAD PLEADED GUILTY TO A FEDERAL OFFENSE AND HAD LEFT
THE COURTROOM, THE DISTRICT COURT ENTERED JUDGMENT SUSPENDING SENTENCE
AND PLACED PETITIONER ON PROBATION FOR THREE YEARS.  NEARLY TWO YEARS
LATER, IN 1954, UPON PETITIONER'S ARREST FOR VIOLATION OF PROBATION,
THE DISTRICT COURT ENTERED A FORMAL JUDGMENT AND COMMITMENT SENTENCING
PETITIONER TO 2 YEARS' IMPRISONMENT AND SETTING ASIDE THE EARLIER
JUDGMENT AND ORDER.  PETITIONER'S MOTION UNDER 28 U.S.C. SEC. 2255 TO
VACATE THIS SENTENCE WAS DENIED BY THE DISTRICT COURT; THE COURT OF
APPEALS DENIED LEAVE TO APPEAL; AND THIS COURT GRANTED CERTIORARI. 
HELD: 

1.  ALTHOUGH PETITIONER WAS RELEASED FROM FEDERAL PRISON AFTER THIS
COURT GRANTED HIS PETITION FOR CERTIORARI, THE POSSIBILITY OF
CONSEQUENCES COLLATERAL TO THE IMPOSITION OF SENTENCE IS SUFFICIENTLY
SUBSTANTIAL TO JUSTIFY DECISION OF THIS CASE ON THE MERITS.  P. 358. 

2.  THE COURT DEEMS IT PROPER TO CONSIDER QUESTIONS AS TO THE
LEGALITY OF THE 1954 SENTENCE, RAISED BY PETITIONER IN HIS BRIEF,
ALTHOUGH, HAD PETITIONER BEEN REPRESENTED BY COUNSEL IN THE COURTS
BELOW AND UPON HIS PETITION FOR CERTIORARI, THOSE QUESTIONS MIGHT WELL
HAVE BEEN DEEMED NEITHER PRESERVED BELOW NOR RAISED IN THE PETITION. 
P. 359. 

3. THE 1954 SENTENCE DID NOT VIOLATE THE DOUBLE JEOPARDY CLAUSE OF
THE FIFTH AMENDMENT.  PP. 359-361. 

4.  THE 1954 SENTENCE DID NOT VIOLATE PETITIONER'S RIGHT UNDER THE
SIXTH AMENDMENT TO A SPEEDY TRIAL, NOR THE PROVISION OF RULE 32(A) OF
THE FEDERAL RULES OF CRIMINAL PROCEDURE REQUIRING IMPOSITION OF
SENTENCE "WITHOUT UNREASONABLE DELAY."  PP. 361-362. 

5.  PETITIONER'S OTHER CONTENTIONS, THAT IN SENTENCING HIM IN 1954
THE TRIAL JUDGE DISREGARDED THE STANDARDS PRESCRIBED FOR SUCH A
PROCEEDING, ARE NOT PROPERLY BEFORE THE COURT AND ARE UNSUPPORTED BY
THE RECORD.  PP. 362-363. 

6.  SINCE THE DECISION OF THIS CASE ON THE MERITS IS AGAINST THE
PETITIONER, THE QUESTION WHETHER THE COURT OF APPEALS PROPERLY DENIED
LEAVE TO APPEAL NEED NOT BE DETERMINED.  P. 363. 

POLLARD V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE VALIDITY OF A SENTENCE IMPOSED ON PETITIONER
IN SEPTEMBER 1954.  ON SEPTEMBER 8, 1952, PETITIONER PLEADED GUILTY IN
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA TO AN
INFORMATION CHARGING HIM WITH THE UNLAWFUL TAKING AND EMBEZZLEMENT OF A
UNITED STATES TREASURY CHECK IN VIOLATION OF 18 U.S.C. SEC. 1702.  THE
DISTRICT JUDGE DEFERRED IMPOSITION OF SENTENCE PENDING PRESENTENCE
INVESTIGATION.  ON OCTOBER 3, 1952, PETITIONER APPEARED BEFORE THE
TRIAL JUDGE AT 10 A.M. FOR SENTENCING.  HE WAS THEN SERVING A SENTENCE
IN A MINNESOTA STATE PRISON, FROM WHICH HE WAS ELIGIBLE FOR A PAROLE IN
THE FOLLOWING MONTH.  THE JUDGE STATED THAT THE PROBATION REPORT SHOWED
THAT PETITIONER HAD TAKEN AN ACTIVE INTEREST IN THE ALCOHOLICS
ANONYMOUS ORGANIZATION IN PRISON, AND PETITIONER TOLD HIM THAT HE
CONTEMPLATED CONTINUING THAT INTEREST WHEN HE WAS RELEASED FROM THE
STATE PRISON.  THE JUDGE ADDED THAT HE WAS IMPRESSED BY THE FACT THAT
PETITIONER, WHO HAD STOLEN THE CHECK AFTER A TWO-WEEK DRINKING SPREE,
HAD REVEALED WHAT HE HAD DONE TO AN OFFICER OF ALCOHOLICS ANONYMOUS AND
TO THE FBI WITHOUT ANY EFFORT TO MINIMIZE THE OFFENSE.  HE ADVISED
PETITIONER TO JOIN ALCOHOLICS ANONYMOUS IMMEDIATELY ON HIS RELEASE FROM
THE STATE PRISON.  HE THEN SAID: 

"  ...  IF YOU WANT TO REVERT TO DRINKING, YOU WILL BE BACK HERE AGAIN
BECAUSE YOU WILL COMMIT SOME FEDERAL OFFENSE, AND I WON'T BE TALKING TO
YOU THIS WAY IF YOU ARE EVER BEFORE ME AGAIN. 

"SO, GOOD LUCK TO YOU AND I HOPE THE PAROLE BOARD WILL GIVE YOU AN
OPPORTUNITY. 

"THAT IS ALL." 

THE JUDGE THEN TURNED TO OTHER BUSINESS. 

IT IS CLEAR THAT NO EXPLICIT REFERENCE TO PETITIONER'S SENTENCE HAD
BEEN MADE DURING THIS COLLOQUY.  BUT BEFORE THE COURT ADJOURNED AT
10:30 A.M., WHEN PEITIONER APPARENTLY HAD LEFT THE COURTROOM, AN
ASSISTANT UNITED STATES DISTRICT ATTORNEY HANDLING THE MATTER SAID: 

"GOING BACK TO THE MATTER OF THOMAS E. POLLARD WHO APPEARED THIS
MORNING - I DIDN'T QUITE UNDERSTAND THAT CLEARLY - IS THERE TO BE A
PROBATIONARY PERIOD AFTER HIS RELEASE FROM STILLWATER, OR ANY TYPE OF
SENTENCING? 

"THE COURT:  IT IS TO COMMENCE AT THE EXPIRATION OF SENTENCING AT
STILLWATER. 

"MR. HACHEY:  PROBATION TO COMMENCE AFTER EXPIRATION OF HIS
SENTENCING AT STILLWATER - FOR HOW LONG? 

"THE COURT:  THREE YEARS." 

A JUDGMENT AND ORDER OF PROBATION WAS THEN ENTERED SUSPENDING
IMPOSITION OF SENTENCE AND PLACING PETITIONER ON PROBATION FOR THAT
TERM.  THE GOVERNMENT CONCEDES THAT THE JUDGMENT AND ORDER WAS INVALID
BECAUSE OF PETITIONER'S ABSENCE FROM THE COURTROOM WHEN PROBATION WAS
IMPOSED.  FED. RULES CRIM. PROC., 43. 

PETITIONER DID NOT RECEIVE A COPY OF THIS ORDER, DESPITE A DIRECTION
OF THE COURT, BUT LEARNED OF THE PROBATION FROM STATE PRISON OFFICIALS
THE FOLLOWING MONTH WHEN HE WAS PAROLED.  ON HIS RELEASE HE BEGAN
REPORTING TO THE FEDERAL PROBATION OFFICER.  NEARLY TWO YEARS LATER, ON
SEPTEMBER 1, 1954, THE TRIAL JUDGE ISSUED A BENCH WARRANT FOR
PETITIONER'S ARREST ON THE BASIS OF THE PROBATION OFFICER'S REPORT THAT
PETITIONER HAD VIOLATED THE TERMS OF HIS PROBATION.  PETITIONER WAS
ARRESTED AND BROUGHT BEFORE THE COURT ON SEPTEMBER 21, 1954.  AFTER
WAIVER OF COUNSEL BY PETITIONER, THE FOLLOWING OCCURRED AT THE
HEARING: 

"THE COURT:  WHAT I AM GOING TO DO IN YOUR CASE, BECAUSE OF THE
RECORD, IS TO SENTENCE YOU IN THE FIRST INSTANCE:  IT'S THE JUDGMENT OF
THE COURT THAT YOU BE CONFINED IN AN INSTITUTION TO BE SELECTED BY THE
ATTORNEY GENERAL OF THE UNITED STATES FOR A PERIOD OF TWO YEARS. 
THAT'S ALL. 

"MR. EVARTS (ASST. U.S. ATTORNEY):  NOW, YOUR HONOR, AS YOU RECALL,
THE RECORD SHOWS THAT HE WAS, SENTENCE WAS IMPOSED ON OCTOBER 3, 1952,
AND I WOULD SUGGEST TO THE COURT THAT AN ORDER BE MADE SETTING ASIDE
THE JUDGMENT AND COMMITMENT THAT WAS ENTERED AT THAT TIME SO THAT THE
RECORD WILL NOW TRULY REFLECT THE STATUTS OF THE EVENTS. 

"THE COURT:  ALL RIGHT." 

A FORMAL JUDGMENT AND COMMITMENT WAS THEN ENTERED, SENTENCING
PETITIONER TO TWO YEARS' IMPRISONMENT AND SETTING ASIDE THE JUDGMENT
AND ORDER OF PROBATION ENTERED ON OCTOBER 3, 1952. 

PETITIONER'S MOTION TO VACATE THIS SENTENCE UNDER 28 U.S.C. SEC. 2255
WAS BASED UPON A MISAPPREHENSION OF THE BASIS FOR THE SENTENCE OF
1954.  HE CONTENDED THAT, SINCE HIS 1952 PROBATION SENTENCE WAS
INVALID, HIS 1954 PRISON SENTENCE WAS ALSO INVALID BECAUSE IT WAS FOR
PROBATION VIOLATION.  ACTUALLY, OF COURSE, IT WAS PUNISHMENT FOR THE
EMBEZZLEMENT.  THE DISTRICT COURT DENIED THE MOTION ON THE GROUND THAT
"PETITIONER WAS INITIALLY SENTENCED UPON SEPTEMBER 21, 1954, AND THE
FILES AND RECORDS IN THE CASE CONCLUSIVELY SHOW THAT SAID JUDGMENT WAS
WITHIN THE JURISDICTION OF THE COURT AND THE SENTENCE IMPOSED WAS VALID
AND IN ACCORDANCE WITH LAW."  PETITIONER FILED A NOTICE OF APPEAL AND A
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS.  THE DISTRICT COURT
DENIED THIS MOTION "IN ALL RESPECTS."  PETITIONER THEN FILED A MOTION
FOR LEAVE TO APPEAL IN FORMA PAUPERIS IN THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT.  AFTER EXAMINATION OF THE RECORD IN THE DISTRICT COURT,
THE COURT OF APPEALS DENIED THIS MOTION WITHOUT OPINION.  THIS COURT
GRANTED LEAVE TO PROCEED IN FORMA PAUPERIS, AND, DEEMING THE ISSUES AS
TO THE VALIDITY OF THE 1954 SENTENCE OF IMPORTANCE IN THE PROPER
ADMINISTRATION OF THE CRIMINAL LAW, GRANTED CERTIORARI.  350 U.S. 965. 
WE ALSO APPOINTED COUNSEL FOR PETITIONER.  350 U.S. 980. 

PETITIONER WAS RELEASED FROM FEDERAL PRISON IN MARCH 1956, AFTER HIS
PETITION FOR CERTIORARI HAD BEEN GRANTED.  HE RELIES ON UNITED STATES
V. MORGAN 346 U.S. 502, 512-513, AND FISWICK V. UNITED STATES, 329 U.S.
211, 220-223, AS MEETING THE QUESTION OF MOOTNESS THAT THIS FACT
SUGGESTS.  THOSE CASES ARE NOT ENTIRELY ON ALL FOURS WITH THIS ONE,
SINCE PETITIONER IS CHALLENGING THE LEGALITY NOT OF ANY DETERMINATION
OF GUILT, BUT INSTEAD OF THE SENTENCE IMPOSED.  BUT THOSE CASES
RECOGNIZE THAT CONVICTIONS MAY ENTAIL COLLATERAL LEGAL DISADVANTAGES IN
THE FUTURE.  APPEALS FROM CONVICTIONS ARE ALLOWED ONLY AFTER
SENTENCES.  FED. RULES CRIM. PROC., 37.  THE DETERMINATION OF GUILT AND
THE SENTENCE ARE ESSENTIAL FOR IMPRISONMENT.  WE THINK THAT
PETITIONER'S REFERENCE TO THE ABOVE CASES SUFFICIENTLY SATISFIES THE
REQUIREMENT THAT REVIEW IN THIS COURT WILL BE ALLOWED ONLY WHERE ITS
JUDGMENT WILL HAVE SOME MATERIAL EFFECT.  CF. ST. PIERRE V. UNITED
STATES, 319 U.S. 41.  THE POSSIBILITY OF CONSEQUENCES COLLATERAL TO THE
IMPOSITION OF SENTENCE IS SUFFICIENTLY SUBSTANTIAL TO JUSTIFY OUR
DEALING WITH THE MERITS.  (FN1) 

THE PETITION FOR CERTIORARI, PRO SE, SOUGHT REVERSAL OF THE ORDER OF
THE COURT OF APPEALS DENYING PETITIONER'S MOTION FOR APPEAL IN FORMA
PAUPERIS AND ALSO RELEASE FROM HIS THEN INCARCERATION.  (FN2)
PETITIONER CONTENDED THAT THE 1954 SENTENCE WAS UNCONSTITUTIONAL
BECAUSE IT WAS IMPOSED FOR VIOLATION OF THE INVALID PROBATION ORDER. 

PETITIONER NOW, IN HIS BRIEF, CLAIMS THAT THE TRIAL JUDGE DETERMINED
ON OCTOBER 3, 1952, THAT NO IMPRISONMENT AND NO PROBATION SHOULD BE
IMPOSED, AND THAT CONSEQUENTLY THE IMPOSITION OF SENTENCE IN SEPTEMBER
1954 VIOLATED THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT.  HE
CLAIMS ALTERNATIVELY THAT THE IMPOSITION OF SENTENCE IN SEPTEMBER 1954
IN THE CIRCUMSTANCES UNDER WHICH IT TOOK PLACE CONSTITUTED A SERIOUS
DEPARTURE FROM PROPER STANDARDS OF CRIMINAL LAW ADMINISTRATION AND
VIOLATED HIS RIGHTS TO A SPEEDY TRIAL UNDER THE SIXTH AMENDMENT AND TO
DUE PROCESS LAW UNDER THE FIFTH AMENDMENT.  (FN3)  THE RECORD NOW
BEFORE US ADEQUATELY STATES THE FACTS FOR A FINAL DETERMINATION OF THE
BASIC ISSUES.  SINCE THE COURT OF APPEALS' DENIAL OF PETITIONER'S
APPEAL INVOLVED AN ADJUDICATION OF THE MERITS, I.E., THAT THERE WAS NO
ADEQUATE BASIS FOR ALLOWANCE OF APPEAL IN FORMA PAUPERIS, WE THINK THE
VALIDITY OF THE 1954 SENTENCE FOR EMBEZZLEMENT SHOULD NOW BE DECIDED. 
AND WE CONCLUDE THAT IT IS PROPER THAT WE DEAL WITH THE QUESTIONS AS TO
LEGALITY OF THE 1954 SENTENCE THAT PETITIONER NOW RAISES, ALTHOUGH, HAD
PETITIONER BEEN REPRESENTED BY COUNSEL IN THE COURTS BELOW AND UPON HIS
PETITION FOR CERTIORARI, WE MIGHT WELL HAVE CONSIDERED THOSE QUESTIONS
NEITHER PRESERVED BELOW NOR RAISED IN THE PETITION.  CF. PRICE V.
JOHNSTON, 334 U.S. 266, 292. 

I. THE CONTENTION THAT THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT FORBIDS THE 1954 SENTENCE MAY BE SHORTLY ANSWERED.  IT
DEPENDS UPON THE ASSERTION THAT THE TRIAL COURT DETERMINED IN 1952 THAT
PETITIONER "SHOULD NOT BE SUBJECT TO IMPRISONMENT OR PROBATION" ON HIS
PLEA OF GUILTY TO EMBEZZLEMENT.  WITHOUT SUCH A DETERMINATION, THERE
COULD NOT BE DOUBLE JEOPARDY.  THE TRANSCRIPT OF EVIDENCE, ALL
PERTINENT PARTS OF WHICH ARE QUOTED IN THE FIRST PART OF THIS OPINION,
SHOWS NO SUCH DETERMINATION.  THE PETITIONER CITES NO WORDS UPON WHICH
HE RELIES.  THE ONLY SENTENCE THAT WAS ENTERED AT THE 1952 HEARING WAS
THE ONE OF PROBATION, ADMITTEDLY INVALID BECAUSE OF PETITIONER'S
ABSENCE.  (FN4) 

IT IS CLEAR TO US, TOO, THAT THE DISTRICT COURT DID NOT BY
IMPLICATION INTEND TO ACQUIT OR DISMISS THE DEFENDANT.  WITHIN THE
MORNING SESSION OF COURT, WHEN HIS FAILURE TO MAKE EXPLICIT THE
SENTENCE WAS CALLED TO HIS ATTENTION, THE JUDGE DIRECTED ENTRY OF THE
ORDER SUSPENDING SENTENCE AND INSTITUTING PROBATION.  THERE IS NO
OCCASION HERE FOR DISTINGUISHING BETWEEN AN ORAL PRONOUNCEMENT OF
SENTENCE AND ITS ENTRY ON THE RECORDS OF THE COURT.  CF.  SPRIGGS V.
UNITED STATES, 225 F.2D 865, 868.  NOR DOES THE SITUATION CALL FOR A
DETERMINATION OF THE CORRECTNESS OF PETITIONER'S ASSERTION THAT A
FEDERAL JUDGE HAS POWER, UNDER A STATUTE WITHOUT MINIMUM PENALTIES,
(FN5) TO RELEASE OR DISCHARGE AN ACCUSED ABSOLUTELY AFTER CONVICTION OR
PLEA OF GUILTY WITHOUT SENTENCE, SUSPENSION OF SENTENCE OR GRANT OF
PROBATION.  (FN6)  IT IS UNFORTUNATE FOR INADVERTENCIES TO LEAD TO
CONFUSION IN CRIMINAL TRIALS, BUT SUCH MISUNDERSTANDING AS PETITIONER
MAY HAVE DRAWN FROM THE OCCURRENCES AT THE 1952 SENTENCE IS NOT A BASIS
FOR VACATING THE LATER SENTENCE.  THE MISHAP OF THE PRISONER'S ABSENCE
WHEN THE FIRST SENTENCE WAS PRONOUNCED CANNOT BE A BASIS FOR VACATING
THE 1954 SENTENCE HERE INVOLVED.  IF THE PROBATION SENTENCE HAD BEEN
VALID, PETITIONER ON ITS VIOLATION WOULD HAVE BEEN SUBJECT TO THE
SENTENCE ACTUALLY IMPOSED IN 1954.  18 U.S.C.  SEC. 3653; ROBERTS V.
UNITED STATES, 320 U.S. 264, 268. 

II.  PETITIONER'S OTHER CONTENTIONS RELATE TO VIOLATIONS OF
CONSTITUTIONAL RIGHTS OF SPEEDY TRIAL AND DUE PROCESS, AND SIGNIFICANT
DEPARTURE FROM PROPER STANDARDS OF CRIMINAL LAW ADMINISTRATION.  IT IS
NOT DISPUTED THAT A COURT HAS POWER TO ENTER SENTENCE AT A SUCCEEDING
TERM WHERE A VOID SENTENCE HAD BEEN PREVIOUSLY IMPOSED.  MILLER V.
ADERHOLD, 288 U.S. 206; CF. BOZZA V. UNITED STATES, 330 U.S. 160, 166. 
TO HOLD OTHERWISE WOULD ALLOW THE GUILTY TO ESCAPE PUNISHMENT THROUGH A
LEGAL ACCIDENT. 

PETITIONER ARGUES THAT THE 1954 SENTENCE VIOLATED HIS RIGHT UNDER THE
SIXTH AMENDMENT OF THE CONSTITUTION TO A "SPEEDY" TRIAL.  (FN7)  HE
TAKES THIS POSITION ON THE ASSUMPTION THAT THE CASE REMAINED, AS WE
HAVE HELD ABOVE, UNCOMPLETED AFTER THE 1952 TRIAL.  WE WILL ASSUME
ARGUENDO THAT SENTENCE IS PART OF THE TRIAL FOR PURPOSES OF THE SIXTH
AMENDMENT.  THE TIME FOR SENTENCE IS OF COURSE NOT AT THE WILL OF THE
JUDGE.  RULE 32(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE REQUIRES
THE IMPOSITION OF SENTENCE "WITHOUT UNREASONABLE DELAY." 

WHETHER DELAY IN COMPLETING A PROSECUTION SUCH AS HERE OCCURRED
AMOUNTS TO AN UNCONSTITUTIONAL DEPRIVATION OF RIGHTS DEPENDS UPON THE
CIRCUMSTANCES.  SEE, E.G., BEAVERS V. HAUBERT, 198 U.S. 77, 87; FRANKEL
V. WOODROUGH, 7 F.2D 796, 798.  THE DELAY MUST NOT BE PURPOSEFUL OR
OPPRESSIVE.  IT WAS NOT HERE.  IT WAS ACCIDENTAL AND WAS PROMPTLY
REMEDIED WHEN DISCOVERED.  NOTHING IN THE RECORD INDICATES ANY DELAY IN
SENTENCING AFTER DISCOVERY OF THE 1952 ERROR.  FROM THE ISSUANCE OF THE
WARRANT IN SEPTEMBER 1954 FOR THE VIOLATION OF PROBATION, THE NORMAL
INFERENCE WOULD BE THAT THE ERROR WAS STILL UNKNOWN TO THE COURT,
ALTHOUGH PETITIONER STATES HE HAD KNOWN OF IT SINCE NOVEMBER 1952. 
(FN8)  WE DO NOT HAVE IN THIS CASE CIRCUMSTANCES AKIN TO THOSE IN
UNITED STATES V. PROVOO, 17 F.R.D. 183, 201, AFF'D MEM. 350 U.S. 857,
WHERE JUDGE THOMSEN FOUND THE DELAY "CAUSED BY THE DELIBERATE ACT OF
THE GOVERNMENT" WHICH THE ACCUSED ATTEMPTED TO CORRECT.  THE SAME
SITUATION EXISTED IN UNITED STATES V. MCWILLIAMS, 82 U.S. APP. D.C.
259, 163 F.2D 695, WHERE THE GOVERNMENT'S FAILURE TO BE READY FOR TRIAL
PERSISTED FOR NEARLY TWO YEARS DESPITE DEFENDANT'S MOTIONS FOR TRIAL. 
IN THESE CIRCUMSTANCES, WE DO NOT VIEW THE LAPSE OF TIME BEFORE
CORRECTION OF THE ERROR AS A VIOLATION OF THE SIXTH AMENDMENT OR OF
RULE 32(A).  ERROR IN THE COURSE OF A PROSECUTION RESULTING IN
CONVICTION CALLS FOR THE CORRECTION OF THE ERROR, NOT THE RELEASE OF
THE ACCUSED.  DOWD V. COOK, 340 U.S. 206, 210.    PETITIONER CONTENDS
ALSO THAT, IN SENTENCING HIM FOR THE EMBEZZLEMENT IN 1954, THE JUDGE
DISREGARDED THE STANDARDS PRESCRIBED FOR SUCH A PROCEEDING.  HE POINTS
OUT THAT THE TRANSCRIPT OF EVIDENCE SHOWS THAT THE PROSECUTING ATTORNEY
IN OPEN COURT, INSTEAD OF THE JUDGE, INQUIRED OF PETITIONER AS TO
WAIVER OF HIS RIGHT TO COUNSEL.  HE SUGGESTS THAT THIS VIOLATES RULE 44
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  (FN9)  ON THE SAME
TRANSCRIPT AUTHORITY, HE MAKES THE SUGGESTION THAT RULES 32(A) AND
37(A)(2), WERE DISREGARDED CONCERNING OPPORTUNITY "TO MAKE A STATEMENT
IN HIS OWN BEHALF AND TO PRESENT ANY INFORMATION IN MITIGATION OF
PUNISHMENT" AND ADVICE TO A DEFENDANT "NOT REPRESENTED BY COUNSEL  ...
OF HIS RIGHT TO APPEAL."  PETITIONER ARGUES THAT THESE IRREGULARITIES
CONSTITUTE A DENIAL OF DUE PROCESS.  WHILE WE DO NOT IMPOSE ON PERSONS
UNLEARNED IN THE LAW THE SAME HIGH STANDARDS OF THE LEGAL ART THAT WE
MIGHT PLACE ON THE MEMBERS OF THE LEGAL PROFESSION, WE THINK THAT THESE
ISSUES ARE TOO FAR AFIELD FROM THE QUESTIONS THAT PETITIONER RAISED IN
THE COURTS BELOW AND IN HIS PETITION FOR CERTIORARI FOR THEM PROPERLY
TO BE BEFORE US.  IN ANY CASE, THE FORMAL COMMITMENT PAPERS SIGNED BY
THE JUDGE SHOW THAT THESE STEPS, EXCEPT THAT OF ADVISING PETITIONER OF
HIS RIGHT TO APPEAL, WERE ACTUALLY TAKEN.  WE ARE NOT WILLING TO
CONCLUDE FROM THE TRANSCRIPT OF EVIDENCE COVERING ONLY SUCH NOTES AS
WERE "TAKEN AT THE ABOVE TIME AND PLACE" THAT THE ABOVE PURELY ROUTINE
STATUTORY REQUIREMENTS WERE NOT FOLLOWED. 

THIS LEAVES UNRESOLVED THE QUESTION WHETHER THE COURT OF APPEALS'
DENIAL OF LEAVE TO APPEAL WAS PROPER.  SINCE WE CONCLUDE THAT
PETITIONER MUST LOSE ON THE MERITS, NOTHING COULD BE GAINED BY A REMAND
TO THE COURT OF APPEALS EVEN IF WE SHOULD BE OF THE OPINION THAT THE
COURT OF APPEALS ERRED IN DENYING LEAVE TO APPEAL.  AFFIRMED. 

FN1  CF. PINO V. LANDON, 349 U.S. 901, REVERSING 215 F.2D 237. 

FN2  SUCH AN ORDER IS REVIEWABLE ON CERTIORARI.  WELLS V. UNITED
STATES, 318 U.S. 257. 

FN3  NO QUESTION IS RAISED AS TO THE LENGTH OF THE 1954 SENTENCE. 
CF. ROBERTS V. UNITED STATES, 320 U.S. 264. 

FN4  "IN A CRIMINAL CASE FINAL JUDGMENT MEANS SENTENCE; AND A VOID
ORDER PURPORTING PERMANENTLY TO SUSPEND SENTENCE IS NEITHER A FINAL NOR
A VALID JUDGMENT."  MILLER V. ADERHOLD, 288 U.S. 206, 210-211.  CF.
KOREMATSU V. UNITED STATES, 319 U.S. 432, 434; HILL V. WAMPLER, 298
U.S. 460, 464; BERMAN V. UNITED STATES, 302 U.S. 211, 212. 

FN5  THE STATUTE UPON WHICH THE INFORMATION WAS BASED READS:  "  ...
AN EMBEZZLER SHALL BE FINED NOT MORE THAN $2,000 OR IMPRISONED NOT MORE
THAN FIVE YEARS, OR BOTH."  18 U.S.C.  SEC. 1702. 

FN6  SEE 18 U.S.C. SEC. 3651; FED. RULES CRIM. PROC., 32(A), (B),
(E). 

FN7  FED. RULES CRIM. PROC., 48(B), PROVIDES FOR ENFORCEMENT OF THIS
RIGHT:  "IF THERE IS UNNECESSARY DELAY IN PRESENTING THE CHARGE TO A
GRAND JURY OR IN FILING AN INFORMATION AGAINST A DEFENDANT WHO HAS BEEN
HELD TO ANSWER TO THE DISTRICT COURT, OR IF THERE IS UNNECESSARY DELAY
IN BRINGING A DEFENDANT TO TRIAL, THE COURT MAY DISMISS THE INDICTMENT,
INFORMATION OR COMPLAINT." 

FN8  WE NOTE THAT PETITIONER MADE NO MOTION TO SECURE A PROMPT PROPER
SENTENCE, OFTEN CONSIDERED IMPORTANT IN QUESTIONS INVOLVING THE SPEEDY
TRIAL CLAUSE.  SEE CASES CITED IN PETITION OF PROVOO, 17 F.R.D. 183. 

FN9  "IF THE DEFENDANT APPEARS IN COURT WITHOUT COUNSEL, THE COURT
SHALL ADVISE HIM OF HIS RIGHT TO COUNSEL AND ASSIGN COUNSEL TO
REPRESENT HIM AT EVERY STAGE OF THE PROCEEDING UNLESS HE ELECTS TO
PROCEED WITHOUT COUNSEL OR IS ABLE TO OBTAIN COUNSEL." 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

OUR DUTY TO SUPERVISE THE ADMINISTRATION OF JUSTICE IN THE FEDERAL
COURTS CALLS FOR A REVERSAL HERE BECAUSE OF DISREGARD SHOWN FOR THE
PROCEDURAL RIGHTS OF PETITIONER - RIGHTS WITH WHICH THE LAW SURROUNDS
EVERY PERSON CHARGED WITH CRIME. 

OUR LAW, BASED UPON CENTURIES OF TRAGIC HUMAN EXPERIENCE, REQUIRES
THAT BEFORE A MAN CAN BE SENT TO A PENITENTIARY, HE IS ENTITLED TO A
SPEEDY TRIAL, TO BE PRESENT IN COURT AT EVERY STEP OF THE PROCEEDINGS,
AT ALL TIMES TO BE REPRESENTED BY COUNSEL, OR TO SPEAK IN HIS OWN
BEHALF, AND TO BE INFORMED IN OPEN COURT OF EVERY ACTION TAKEN AGAINST
HIM UNTIL HE IS LAWFULLY SENTENCED.  THESE ARE NOT MERE CEREMONIALS TO
BE NEGLECTED AT WILL IN THE INTERESTS OF A CROWDED CALENDAR OR OTHER
EXPEDIENCIES.  THEY ARE BASIC RIGHTS.  THEY BULK LARGE IN THE TOTALITY
OF PROCEDURAL RIGHTS GUARANTEED TO A PERSON ACCUSED OF CRIME.  HERE, IN
THE CASE OF AN IMPECUNIOUS DEFENDANT, WHO WAS SUMMARILY RUSHED THROUGH
THE COURT MILL WITHOUT BENEFIT OF COUNSEL, ALL OF THEM, IN SOME DEGREE,
WERE DENIED HIM. 

THE PETITIONER WAS NOT A DANGEROUS CRIMINAL.  HIS TROUBLE, AS THE
COURT RECOGNIZED, WAS INTEMPERANCE.  DURING THE COURSE OF A LONG
DRINKING SPREE, HE BECAME INVOLVED WITH BOTH THE STATE AND FEDERAL
AUTHORITIES.  AS SOON AS HE BECAME SOBER ENOUGH TO REALIZE THE
CONSEQUENCES OF HIS ACTIONS, HE MADE A FULL DISCLOSURE TO ONE OF THE
OFFICERS OF ALCOHOLICS ANONYMOUS AND TO THE FEDERAL BUREAU OF
INVESTIGATION. 

HE WAS SENTENCED TO A STATE PENITENTIARY.  HE WAS ALSO CHARGED BY THE
FEDERAL GOVERNMENT WITH UNLAWFULLY OPENING A LETTER AND EXTRACTING A
CHECK WHICH HE CASHED.  THE CASE WAS NOT PRESSED UNTIL PETITIONER WAS
ABOUT TO BE DISCHARGED FROM THE STATE PENITENTIARY.  (FN1)  WITHOUT
COUNSEL, HE PLEADED GUILTY.  HE WAS THEN BROUGHT INTO COURT TO RECEIVE
SENTENCE.  THE COLLOQUY BETWEEN HIM AND THE COURT CONCLUDED AS
FOLLOWS: 

"THE COURT:  YOU OUGHT TO KNOW THE MISERY AND THE GRIEF AND THE
SORROW AND THE HORROR OF WHAT CONTINUED DRINKING ON YOUR PART WILL
BRING TO YOU. 

"IF I MIGHT SUGGEST TO YOU, AND I AM GIVING YOU GRATUITOUS ADVICE BUT
IT IS THE RESULT OF OBSERVATION AND EXPERIENCE - IT IS MY VIEW THAT
WHEN YOU GET OUT YOU SHOULD IMMEDIATELY JOIN THE ALCOHOLICS ANONYMOUS
ORGANIZATION - NOT WAIT A WEEK OR TWO WEEKS OR THREE WEEKS - BUT HAVE
THAT YOUR FIRST MISSION AFTER YOU CONTACT YOUR FAMILY, AND DO WHAT THEY
TELL YOU TO DO AND DO IT IMMEDIATELY AND DO IT DILIGENTLY AND
FAITHFULLY, CARRY OUT EVERY OBLIGATION THAT THEY IMPOSE UPON YOU.  WITH
YOUR BACKGROUND AND WITH YOUR ABILITY I THINK THAT YOU CAN WIN THIS
FIGHT. 

"IF YOU DON'T DO THOSE THINGS, AND IF YOU WANT TO REVERT TO DRINKING,
YOU WILL BE BACK HERE AGAIN BECAUSE YOU WILL COMMIT SOME FEDERAL
OFFENSE, AND I WON'T BE TALKING TO YOU THIS WAY IF YOU ARE EVER BEFORE
ME AGAIN. 

"SO, GOOD LUCK TO YOU AND I HOPE THE PAROLE BOARD WILL GIVE YOU AN
OPPORTUNITY. 

"THAT IS ALL. 

"THE DEFENDANT:  THANK YOU VERY MUCH, SIR." 

PETITIONER'S WIFE, A CLOSE PERSONAL FRIEND AND THE TWO STATE
CUSTODIAL OFFICERS WHO WERE PRESENT AT THE HEARING CONCLUDED, AS WOULD
ANYONE, THAT THE KINDLY AND UNDERSTANDING LANGUAGE OF THE JUDGE ENDED
THE MATTER AND THAT ADDITIONAL PUNISHMENT WAS NOT TO BE IMPOSED. 
PETITIONER WAS RETURNED TO THE STATE PENITENTIARY.  LATER IN THE DAY,
AFTER AN INQUIRY BY THE PROSECUTING ATTORNEY AS TO THE DISPOSITION OF
THE CASE, THE JUDGE CASUALLY SAID, "THREE YEARS PROBATION."  (FN2)
PETITIONER WAS ABSENT WHEN THIS OCCURRED.  (FN3)  NOTICE OF THIS ACTION
WAS NOT EVEN COMMUNICATED TO HIM.  A MONTH OR SO LATER, AS HE WAS BEING
RELEASED FROM THE STATE PRISON, THE OFFICIALS ADVISED HIM THAT HE MUST
REPORT TO THE FEDERAL PROBATION OFFICER.  NATURALLY, HE COMPLIED.  BUT
HE IMMEDIATELY TRIED TO DISCOVER, THROUGH THE PROBATION OFFICER, HOW
AND WHY HE WAS SUBJECT TO PROBATION.  THE OFFICER SUCCEEDED IN
CONVINCING HIM THAT THE "SENTENCE" WAS LEGAL.  AGAIN, A YEAR LATER,
PETITIONER REQUESTED HIS PROBATION OFFICER TO INVESTIGATE.  THE OFFICER
DISCOVERED THE TRUTH OF PETITIONER'S ASSERTIONS.  THOUGH HE RECOGNIZED
THE IRREGULARITY OF THE PROCEEDINGS, HE SUGGESTED TO PETITIONER THAT IT
WOULD NOT BE WISE TO PURSUE THE MATTER - THAT FURTHER COMPLICATIONS
MIGHT DEVELOP. 

IN SEPTEMBER 1954, NEARLY TWO YEARS AFTER HIS FIRST APPEARANCE BEFORE
THE COURT FOR SENTENCING, PETITIONER LAPSED IN THE FIGHT AGAINST
EXCESSIVE DRINKING.  REPORTED AS A PROBATION VIOLATOR, HE WAS AGAIN
BROUGHT INTO FEDERAL COURT.  HIS CASE WAS DISPOSED OF IN THE MOST
SUMMARY STYLE.  THE ASSISTANT UNITED STATES ATTORNEY FIRST OBTAINED THE
DEFENDANT'S STATEMENT WAIVING RIGHT TO COUNSEL.  HE WAS NOT ADVISED BY
THE COURT, AS REQUIRED BY LAW, OF HIS RIGHT TO COUNSEL AND TO THE
APPOINTMENT OF COUNSEL IF DESIRED.  FED. RULES CRIM. PROC., 44.  THE
JUDGE, BUT NOT PETITIONER, HAD APPARENTLY BEEN APPRISED BEFOREHAND OF
THE ILLEGALITY OF THE OCTOBER 3, 1952, SENTENCE. 

"THE COURT:  WHAT I AM GOING TO DO IN YOUR CASE, BECAUSE OF THE
RECORD, IS TO SENTENCE YOU IN THE FIRST INSTANCE:  IT'S THE JUDGMENT OF
THE COURT THAT YOU BE CONFINED IN AN INSTITUTION TO BE SELECTED BY THE
ATTORNEY GENERAL OF THE UNITED STATES FOR A PERIOD OF TWO YEARS. 
THAT'S ALL. 

"MR. EVARTS (PROSECUTING ATTORNEY):  NOW, YOUR HONOR, AS YOU RECALL,
THE RECORD SHOWS THAT HE WAS, SENTENCE WAS IMPOSED ON OCTOBER 3, 1952,
AND I WOULD SUGGEST TO THE COURT THAT AN ORDER BE MADE SETTING ASIDE
THE JUDGMENT AND COMMITMENT THAT WAS ENTERED AT THE TIME SO THAT THE
RECORD WILL NOW TRULY REFLECT THE STATUS OF THE EVENTS. 

"THE COURT:  ALL RIGHT." 

IN THIS COURT THE GOVERNMENT CONCEDES THE TOTAL INVALIDITY OF THE
"SENTENCE" OF OCTOBER 3, 1952, AND CONTENDS THAT THESE EVENTS OF
SEPTEMBER 21, 1954, ARE TO BE TREATED AS THE FIRST AND ONLY SENTENCE
IMPOSED ON THE DEFENDANT FOR THE CRIME OF WHICH HE HAD PLEADED GUILTY
IN 1952.  BUT IT TOO HAS INFIRMITIES.  IT CANNOT BE SAID THAT THIS LONG
DELAYED SENTENCING HEARING COMPORTS WITH THE REQUIREMENTS OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE.  AS ALREADY STATED, PETITIONER WAS
NOT REPRESENTED BY COUNSEL.  THERE WAS NO ATTEMPT TO COMPLY WITH RULE
37(A)(2), WHICH PROVIDES THAT: "WHEN A COURT AFTER TRIAL IMPOSES
SENTENCE UPON A DEFENDANT NOT REPRESENTED BY COUNSEL, THE DEFENDANT
SHALL BE ADVISED OF HIS RIGHT TO APPEAL  ...  ."  FURTHERMORE, RULE
32(A) CONTAINS A MANDATORY REQUIREMENT:  "BEFORE IMPOSING SENTENCE THE
COURT SHALL AFFORD THE DEFENDANT AN OPPORTUNITY TO MAKE A STATEMENT IN
HIS OWN BEHALF AND TO PRESENT ANY INFORMATION IN MITIGATION OF
PUNISHMENT."  NO OPPORTUNITY WAS AFFORDED THE DEFENDANT TO SAY A WORD
IN MITIGATION OR EXTENUATION OF HIS OFFENSE.  (FN4) 

PETITIONER ALSO QUESTIONS THE POWER OF THE TRIAL COURT TO SENTENCE
HIM SO LONG AFTER ARRAIGNMENT.  THE SIXTH AMENDMENT GUARANTEES TO
PERSONS ACCUSED OF CRIMES IN A FEDERAL COURT THAT THEY SHALL RECEIVE A
"SPEEDY AND PUBLIC TRIAL."  IT HAS NEVER BEEN HELD THAT THE SENTENCE IS
NOT PART OF THE "TRIAL."  BUT IT IS NOT NECESSARY TO DECIDE THIS ISSUE
ON CONSTITUTIONAL GROUNDS.  THE PRINCIPLE HAS BEEN IMPLEMENTED BY THE
FEDERAL RULES OF CRIMINAL PROCEDURE. 

RULE 32(A) DECLARES UNEQUIVOCALLY THAT:  "SENTENCE SHALL BE IMPOSED
WITHOUT UNREASONABLE DELAY."  THE MAJORITY HOLDS THAT THIS TWO-YEAR
DELAY IS NOT UNREASONABLE BECAUSE IT WAS "ACCIDENTAL" AND WAS "PROMPTLY
REMEDIED WHEN DISCOVERED."  THERE IS NOTHING IN THE RECORD TO WARRANT
EITHER OF THESE CONCLUSIONS.  BOTH THE COURT AND THE PROSECUTING
ATTORNEY WERE PUT ON NOTICE OF THE FATAL DEFECT OF THE ABORTIVE
SENTENCE ON THE DAY IT WAS IMPOSED.  NO STEPS WERE TAKEN TO REMEDY THE
DEFECT.  PETITIONER DECLARED THAT HE TWICE INITIATED INVESTIGATION OF
THE LEGALITY OF HIS SENTENCE.  THE PROBATION OFFICER OBVIOUSLY CHECKED
WITH SOMEONE LONG BEFORE PETITIONER WAS BROUGHT TO COURT FOR WHAT IS
NOW CALLED HIS "FIRST" SENTENCE.  WE CANNOT SIMPLY ASSUME THAT THE
FACTS DID NOT COME TO THE ATTENTION OF ANY RESPONSIBLE PERSON. 

THIS PROCEEDING WAS INITIATED AS A MOTION TO VACATE SENTENCE UNDER 28
U.S.C. SEC. 2255.  THE DISTRICT JUDGE REFUSED TO ACCORD PETITIONER A
HEARING AND, CONSIDERING ONLY THE MOTION AND THE FILES AND RECORDS IN
THE COURT, DENIED RELIEF.  THEN, IN SPITE OF THE INFIRMITIES IN THE
CASE REVEALED BY THESE DOCUMENTS, LEAVE TO APPEAL IN FORMA PAUPERIS WAS
DENIED.  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED THIS
ACTION, BUT WE GRANTED CERTIORARI AND APPOINTED COUNSEL TO REPRESENT
PETITIONER. 

THE CONCLUSION THAT THE CONDONATION OF THIS SUCCESSION OF PROCEDURAL
SHORTCOMINGS REPRESENTS A RESTRICTION OF PETITIONER'S RIGHTS IS
INESCAPABLE.  THIS COURT HAS OFTEN SAID THAT SUCH DEPARTURES FROM
ACCEPTED STANDARDS SHOULD NOT BE PERMITTED - THAT TO DO SO ENCOURAGES
LOOSENESS IN MANY WAYS.  PETITIONER HAS SERVED THE TWO YEARS OF
IMPRISONMENT WHILE PURSUING HIS REMEDY TO THIS COURT.  WE CANNOT
"UNRING" THE BELL THAT SO CASUALLY SENT HIM TO PRISON, BUT WE CAN AND
SHOULD MAKE THE RECORD SHOW THAT HE WAS NOT COMMITTED TO A FEDERAL
PRISON IN ACCORDANCE WITH THE ACCEPTED STANDARD OF CRIMINAL PROCEDURE. 

FN1  THE ALLEGED OFFENSE OCCURRED ON OR ABOUT MAY 21, 1951.  A
COMPLAINT WAS SIGNED THE FOLLOWING JULY.  NOTHING FURTHER ENSUED IN THE
CASE UNTIL SEPTEMBER 8, 1952.  ON THAT DATE THE UNITED STATES ATTORNEY
FILED AN INFORMATION AND PETITIONER ENTERED HIS PLEA OF GUILTY. 

FN2  "THE COURT:  IS THERE ANYTHING ELSE, MR. HACHEY (PROSECUTING
ATTORNEY)? 

"MR. HACHEY:  GOING BACK TO THE MATTER OF THOMAS E. POLLARD WHO
APPEARED THIS MORNING - I DIDN'T QUITE UNDERSTAND THAT CLEARLY - IS
THERE TO BE A PROBATIONARY PERIOD AFTER HIS RELEASE FROM STILLWATER, OR
ANY TYPE OF SENTENCING? 

"THE COURT:  IT IS TO COMMENCE AT THE EXPIRATION OF SENTENCING AT
STILLWATER. 

"MR. HACHEY:  PROBATION TO COMMENCE AFTER EXPIRATION OF HIS
SENTENCING AT STILLWATER - FOR HOW LONG? 

"THE COURT:  THREE YEARS." 

FN3  THE GOVERNMENT CONCEDES THAT THE PROBATION SENTENCE WAS
COMPLETELY INVALID BECAUSE IT WAS IMPOSED IN PETITIONER'S ABSENCE. 
FED. RULES CRIM. PROC., 43. 

FN4  THE STEREOTYPED RECITALS IN THE COMMITMENT PAPERS, REFERRED TO
BY THE MAJORITY, ARE WHOLLY INCONSISTENT WITH THE VERBATIM TRANSCRIPT
OF THE PROCEEDINGS, WHICH IS CLEARLY A COMPLETE RECORD OF ALL THAT
ACTUALLY OCCURRED WHILE PETITIONER WAS BEFORE THE COURT. 
..END :






















SENKO V. LACROSSE DREDGING CORP. 352 U.S. 370 


NO. 62.  ARGUED DECEMBER 12, 1956 - DECIDED FEBRUARY 25, 1957 - 7 ILL.
APP. 2D 307, 129 N.E.2D 454, REVERSED AND REMANDED. 


PETITIONER WAS EMPLOYED BY RESPONDENT IN DREDGING OPERATIONS.  THE
DREDGE WAS ANCHORED TO THE SHORE AT ALL TIMES DURING PETITIONER'S
EMPLOYMENT AND WAS SELDOM IN TRANSIT.  PETITIONER WAS INJURED IN THE
COURSE OF HIS EMPLOYMENT WHILE ASHORE, AND BROUGHT AN ACTION IN A STATE
COURT TO RECOVER DAMAGES UNDER THE JONES ACT.  PETITIONER'S EVIDENCE
TENDED TO SHOW THAT HE WAS EMPLOYED ALMOST SOLELY ON THE DREDGE, THAT
HIS DUTY WAS PRIMARILY TO MAINTAIN THE DREDGE DURING ITS ANCHORAGE AND
FOR ITS FUTURE TRIPS, AND THAT HE WOULD HAVE A SIGNIFICANT NAVIGATIONAL
FUNCTION WHEN THE DREDGE WAS IN TRANSIT.  THE JURY RETURNED A VERDICT
FOR PETITIONER AND JUDGMENT WAS ENTERED IN HIS FAVOR.  HELD:  THERE WAS
SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE JURY'S FINDING THAT
PETITIONER WAS A "MEMBER OF A CREW" ENTITLED TO MAINTAIN THE ACTION
UNDER THE JONES ACT.  PP. 370-374. 

(A)  THE FACT THAT THE DREDGE IN THIS CASE WAS CONNECTED TO THE SHORE
IS NOT CONTROLLING; NOR IS THE FACT THAT THE INJURY OCCURRED ON LAND. 
P. 373. 

(B)  IN AN ACTION UNDER THE JONES ACT, THE FINDING OF A JURY THAT THE
CLAIMANT WAS A "MEMBER OF A CREW" IS FINAL IF IT HAS A REASONABLE
BASIS, WHETHER OR NOT THE APPELLATE COURT AGREES WITH THE JURY'S
ESTIMATE.  PP. 373-374. 

SENKO V. LACROSSE DREDGING CORP. 

CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS EMPLOYED BY RESPONDENT TO ASSIST WITH DREDGING
OPERATIONS BEING CONDUCTED BY RESPONDENT IN A SLOUGH DUG TO BY-PASS A
ROCKY SECTION OF THE MISSISSIPPI RIVER.  HIS WORK WAS THAT OF A
HANDYMAN; IT INCLUDED THE CARRYING AND STORING OF SUPPLIES; AND THE
GENERAL MAINTENANCE OF A DREDGE.  HE WAS INJURED BY THE EXPLOSION OF A
COAL STOVE WHILE PLACING SIGNAL LANTERNS FROM THE DREDGE IN A SHED ON
THE NEIGHBORING BANK.  HE FILED THIS SUIT UNDER THE JONES ACT IN THE
CITY COURT OF GRANITE CITY, ILLINOIS, TO RECOVER DAMAGES FOR HIS
INJURIES.  THE ACT PROVIDES A CAUSE OF ACTION FOR "ANY SEAMAN WHO SHALL
SUFFER PERSONAL INJURY IN THE COURSE OF HIS EMPLOYMENT."  41 STAT.
1007, 46 U.S.C. SEC. 688.  THIS COURT, HOWEVER, HAS HELD THAT THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT OF MARCH 4, 1927,
44 STAT. 1424, 33 U.S.C. SEC. 901 ET SEQ., RESTRICTS THE BENEFITS OF
THE JONES ACT TO "MEMBERS OF A CREW OF A VESSEL."  SWANSON V. MARRA
BROS., INC., 328 U.S. 1.  TO RECOVER, THEREFORE, PETITONER HAD TO BE A
MEMBER OF A CREW, AS THAT TERM IS USED IN THE LONGSHOREMEN'S ACT, AT
THE TIME OF HIS INJURY. 

THE JURY RETURNED A VERDICT FOR PETITIONER AND JUDGMENT WAS ENTERED
IN HIS FAVOR.  ON APPEAL, THE FOURTH DISTRICT APPELLATE COURT OF THE
STATE OF ILLINOIS HELD THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT
THE FINDING THAT PETITIONER WAS A MEMBER OF A CREW.  (FN1)
ACCORDINGLY, IT REVERSED THE TRIAL COURT AND ENTERED JUDGMENT FOR
RESPONDENT.  SENKO V. LACROSSE DREDGING CORP., 7 ILL. APP. 2D 307, 129
N.E.2D 454.  THE ILLINOIS SUPREME COURT DENIED A PETITION FOR AN
APPEAL.  WE GRANTED CERTIORARI.  351 U.S. 949. 

IN SOUTH CHICAGO CO. V. BASSETT, 309 U.S. 251, WE SAID THAT WHETHER
OR NOT AN EMPLOYEE IS "'A MEMBER OF A CREW' TURNS ON QUESTIONS OF FACT"
AND THAT, IF A FINDING ON THIS QUESTION HAS EVIDENCE TO SUPPORT IT, THE
FINDING IS CONCLUSIVE.  ID., AT 257-258.  (FN2)  THE SOLE QUESTION
PRESENTED HERE, THEREFORE, IS WHETHER THERE IS AN EVIDENTIARY BASIS FOR
THE JURY'S FINDING THAT PETITIONER WAS A MEMBER OF A CREW AT THE TIME
OF HIS INJURY.  THIS FINDING WAS MADE UNDER SPECIFIC INSTRUCTIONS NOT
OBJECTED TO HERE. 

THE APPELLATE COURT CHARACTERIZED PETITIONER AS: 

"AN EMPLOYEE WHOSE PRINCIPAL DUTY IS TO LOAD SUPPLIES ON A VESSEL AT
ANCHOR, AND TO PERFORM INCIDENTAL TASKS OF A COMMAN LABOR CHARACTER
...  ."  7 ILL. APP. 2D, AT 313, 129 N.E.2D, AT 457. 

THEY ALSO NOTED THAT PETITIONER LIVED ASHORE AND WAS NOT ABOARD
EXCEPT WHEN THE VESSEL WAS ANCHORED.  THE COURT CONCLUDED THAT
PETITIONER WAS NOT "NATURALLY AND PRIMARILY ON BOARD TO AID IN
NAVIGATION" AND COULD NOT "MAINTAIN AN ACTION UNDER THE JONES ACT."  7
ILL.  APP. 2D, AT 313-314, 129 N.E.2D, AT 457. 

IT IS TRUE THAT THE DREDGE WAS ANCHORED TO THE SHORE AT THE TIME OF
PETITIONER'S INJURY AND DURING ALL THE TIME PETITIONER WORKED FOR
RESPONDENT.  IT IS ALSO TRUE THAT THIS DREDGE, LIKE MOST DREDGES, WAS
NOT FREQUENCLY IN TRANSIT.  WE BELIEVE, HOWEVER, THAT THERE IS
SUFFICIENT EVIDENCE IN THE RECORD FOR THE JURY TO DECIDE THAT
PETITIONER WAS PERMANENTLY ATTACHED TO AND EMPLOYED BY THE DREDGE AS A
MEMBER OF ITS CREW. 

PETITIONER'S WITNESSES TESTIFIED THAT HE WAS KNOWN AS A "DECKHAND"
AMONG RIVERMEN.  THEY SAID THAT HE WAS HIRED TO CLEAN AND TAKE CARE OF
THE DECK, SPLICE ROPE, STOW SUPPLIES, AND, IN GENERAL, TO KEEP THE
DREDGE "IN SHAPE."  THIS TESTIMONY INDICATED THAT SUBSTANTIALLY ALL OF
PETITIONER'S DUTIES WERE PERFORMED ON OR FOR THE DREDGE.  A NORMAL
INFERENCE IS THAT PETITIONER WAS RESPONSIBLE FOR ITS SEAWORTHINESS.  IF
THE DREDGE LEAKED, FOR EXAMPLE, THE JURY COULD SUPPOSE THAT HIS JOB
WOULD BE TO REPAIR THE LEAK.  FURTHERMORE, A WITNESS TESTIFIED THAT A
USUAL DUTY OF ONE HOLDING PETITIONER'S JUG WAS TO TAKE SOUNDINGS AND
CLEAN NAVIGATION LIGHTS WHEN THE DREDGE WAS IN TRANSIT.  7 ILL. APP.
2D, AT 310, 129 N.E.2D, AT 455-456.  HERE AGAIN, THE JURY COULD
REASONABLY HAVE BELIEVED THAT PETITIONER WOULD HAVE THESE
RESPONSIBILITIES IN THE EVENT THAT THIS DREDGE WERE MOVED.  WHETHER
PETITIONER WOULD BE A MEMBER OF THE DREDGE'S CREW WHILE TAKING
SOUNDINGS DURING A TRIP IS CERTAINLY A JURY QUESTION.  IF HE WERE A
MEMBER DURING TRAVEL, HE WOULD NOT NECESSARILY LACK THAT STATUS DURING
ANCHORAGE.  EVEN A TRANSOCEANIC LINER MAY BE CONFINED TO BERTH FOR
LENGTHY PERIODS, AND WHILE THERE THE SHIP IS KEPT IN REPAIR BY ITS
"CREW."  THERE CAN BE NO DOUBT THAT A MEMBER OF ITS CREW WOULD BE
COVERED BY THE JONES ACT DURING THIS PERIOD, EVEN THOUGH THE SHIP WAS
NEVER IN TRANSIT DURING HIS EMPLOYMENT.  IN SHORT, THE DUTIES OF A MAN
DURING A VESSEL'S TRAVEL ARE RELEVANT IN DETERMINING WHETHER HE IS A
"MEMBER OF A CREW" WHILE THE VESSEL IS ANCHORED.  THUS, THE FACT THAT
THIS DREDGE WAS CONNECTED TO THE SHORE CANNOT BE CONTROLLING. 

THE FACT THAT PETITIONER'S INJURY OCCURRED ON LAND IS NOT MATERIAL. 
ADMIRALTY JURISDICTION AND THE COVERAGE OF THE JONES ACT DEPENDS ONLY
ON A FINDING THAT THE INJURED WAS "AN EMPLOYEE OF THE VESSEL, ENGAGED
IN THE COURSE OF HIS EMPLOYMENT" AT THE TIME OF HIS INJURY.  SWANSON V.
MARRA BROS., INC., 328 U.S. 1, 4, CITING O'DONNELL V. GREAT LAKES
DREDGE & DOCK CO., 318 U.S. 36.  (FN3) 

AS WE HAVE SAID BEFORE, THIS COURT DOES NOT NORMALLY SIT TO RE
EXAMINE A FINDING OF THE TYPE THAT WAS MADE BELOW.  WE BELIEVE,
HOWEVER, THAT OUR DECISION IN SOUTH CHICAGO CO. V. BASSETT, SUPRA, HAS
NOT BEEN FULLY UNDERSTOOD.  OUR HOLDING THERE THAT THE DETERMINATION OF
WHETHER AN INJURED PERSON WAS A "MEMBER OF A CREW" IS TO BE LEFT TO THE
FINDER OF FACT MEANT THAT JURIES HAVE THE SAME DISCRETION THEY HAVE IN
FINDING NEGLIGENCE OR ANY OTHER FACT.  THE ESSENCE OF THIS DISCRETION
IS THAT A JURY'S DECISION IS FINAL IF IT HAS A REASONABLE BASIS,
WHETHER OR NOT THE APPELLATE COURT AGREES WITH THE JURY'S ESTIMATE. 

BECAUSE THERE WAS TESTIMONY INTRODUCED BY PETITIONER TENDING TO SHOW
THAT HE WAS EMPLOYED ALMOST SOLELY ON THE DREDGE, THAT HIS DUTY WAS
PRIMARILY TO MAINTAIN THE DREDGE DURING ITS ANCHORAGE AND FOR ITS
FUTURE TRIPS, AND THAT HE WOULD HAVE A SIGNIFICANT NAVIGATIONAL
FUNCTION WHEN THE DREDGE WAS PUT IN TRANSIT, WE HOLD THERE WAS
SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE FINDING THAT
PETITIONER WAS A MEMBER OF THE DREDGE'S CREW.  CF. GIANFALA V. TEXAS
CO., 350 U.S. 879, REVERSING 222 F.2D 382.  ACCORDINGLY, WE REVERSE THE
DECISION BELOW. 

RESPONDENT, ON ITS APPEAL FROM THE TRIAL COURT'S JUDGMENT, RAISED TWO
QUESTIONS WHICH THE APPELLATE COURT DID NOT REACH BECAUSE OF ITS
DISPOSITION OF THE CASE.  (FN4)  SO THAT THESE ISSUES MAY BE REVIEWED,
WE REMAND THE CASE TO THAT COURT.  IT IS SO ORDERED. 

FN1  ALTHOUGH TWO OTHER GROUNDS WERE ADVANCED ON APPEAL, ONLY THIS
ONE WAS CONSIDERED.  SEE N. 4, INFRA.  NO QUESTION HAS BEEN RAISED AT
ANY TIME AS TO WHETHER THE DREDGE INVOLVED HERE HAD THE STATUS OF A
"VESSEL" AT THE TIME OF PETITIONER'S INJURY. 

FN2  THE FINDER OF FACT IN THE BASSETT CASE WAS A COMMISSIONER, BUT
THAT HOLDING APPLIES WITH EQUAL FORCE TO THIS CASE IN WHICH THE FINDER
WAS A JURY. 

FN3  "THE ADMIRALTY AND MARITIME JURISDICTION OF THE UNITED STATES
SHALL EXTEND TO AND INCLUDE ALL CASES OF DAMAGE OR INJURY, TO PERSON OR
PROPERTY, CAUSED BY A VESSEL ON NAVIGABLE WATER, NOTWITHSTANDING THAT
SUCH DAMAGE OR INJURY BE DONE OR CONSUMMATED ON LAND."  62 STAT. 496,
46 U.S.C. SEC. 740. 

FN4  "2, THE DREDGE WAS NOT OPERATING IN NAVIGABLE WATERS; AND 3,
THERE WAS NO EVIDENCE OF NEGLIGENCE ON ITS PART AND NO BASIS TO APPLY
THE DOCTRINE OF RES IPSA LOQUITUR."  7 ILL. APP. 2D, AT 309, 129
N.E.2D, AT 455.  MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND
MR. JUSTICE BURTON JOIN, DISSENTING. 

IN MY OPINION THE COURT BELOW PROPERLY DISMISSED THE COMPLAINT
BECAUSE THE EVIDENCE SHOWS AFFIRMATIVELY THAT PETITIONER WAS NOT A
MEMBER OF A "CREW OF A VESSEL," (FN1) AS THAT TERM HAS HERETOFORE BEEN
USED BY THE COURTS, OR INDEED ACCORDING TO ANY COMMONLY UNDERSTOOD
MEANING OF THE EXPRESSION.  SINCE THE PASSAGE OF THE LONGSHOREMEN'S ACT
IN 1927, (FN2) SUCH MEMBERSHIP HAS BEEN A PREREQUISITE TO THE RIGHT TO
SUE UNDER THE JONES ACT.  (FN3)  SWANSON V. MARRA BROS., 328 U.S. 1. 

ACCORDING TO PAST DECISIONS, TO BE A "MEMBER OF A CREW" AN INDIVIDUAL
MUST HAVE SOME CONNECTION, MORE OR LESS PERMANENT, WITH A SHIP AND
SHIP'S COMPANY.  (FN4)  MORE PARTICULARLY, THIS COURT HAS SAID THAT HE
MUST BE "NATURALLY AND PRIMARILY ON BOARD TO AID IN  ...  NAVIGATION,"
AS DISTINGUISHED FROM THOSE "SERVING ON VESSELS, TO BE SURE, BUT WHOSE
SERVICE WAS THAT OF LABORERS, OF THE SORT PERFORMED BY LONGSHOREMEN AND
HABOR WORKERS."  CONGRESS INTENDED TO REMOVE FROM THE COVERAGE OF THE
JONES ACT "ALL THOSE VARIOUS SORTS OF LONGSHOREMEN AND HARBOR WORKERS
WHO WERE PERFORMING LABOR ON A VESSEL."  SOUTH CHICAGO COAL & DOCK CO.
V. BASSETT, 309 U.S. 251, 260, 257. 

PETITIONER'S RELATIONSHIP TO THIS DREDGE MET NONE OF THESE
REQUIREMENTS.  HE WAS SIMPLY AN ORDINARY LABORER, A MEMBER OF THE
COMMON LABORERS' UNION.  TEMPORARILY UNEMPLOYED, HE APPLIED TO HIS
UNION, WHICH SENT HIM TO RESPONDENT AS A LABORER.  RESPONDENT WAS A
CONTRACTOR ON THE CANAL-DIGGING PROJECT, AND EMPLOYED A CONSTRUCTION
GANG ON SHORE UNDER THE SUPERVISION OF A FOREMAN.  THIS FOREMAN
ASSIGNED SENKO TO TAKE THE JOB OF "DECKHAND" OR "LABORER" ON
RESPONDENT'S DREDGE, THE JAMES WILKINSON, A CRAFT WHICH, THOUGH AFLOAT,
SERVED AS A STATIONARY EARTH-REMOVING MACHINE.  HIS DUTIES THERE WERE
MISCELLANEOUS, CONSISTING OF SERVING AS ASSISTANT AND HANDY-MAN TO THE
TEAM OF MEN OPERATING THE EARTH-REMOVING PUMPS.  HE CARRIED SUPPLIES
FROM SHORE TO DREDGE AND BACK, CLEANED UP THE DREDGE, FILLED THE WATER
COOLER, AND DID ERRANDS ON SHORE.  HE WORKED AN EIGHT-HOUR SHIFT, WAS
PAID BY THE HOUR, AND RECEIVED PREMIUM PAY FOR OVERTIME.  HE LIVED AT
HOME, DROVE TO WORK EVERY DAY, AND BROUGHT HIS OWN MEALS.  HE DID NOT
BELONG TO THE NATIONAL MARITIME UNION OR ANY OTHER SEAMEN'S
ORGANIZATION.  HE WAS SUBJECT TO THE DISCIPLINE AND SUPERVISION NOT OF
OFFICERS OF A VESSEL BUT OF THE LABOR FOREMAN IN CHARGE OF THE
CONSTRUCTION PROJECT, WHO WORKED ON SHORE.  AT ANY TIME SENKO COULD
HAVE BEEN SHIFTED TO A JOB ON SHORE BY THE FOREMAN AND REPLACED WITH
ONE OF THE SHORE LABORERS; IN OTHER WORDS, HIS CONNECTION WAS NOT WITH
THE VESSEL BUT WITH THE CONSTRUCTION GANG.  HE HAD NO DUTIES CONNECTED
WITH NAVIGATION; IN FACT HE HAD NEVER BEEN ON THE DERDGE WHEN IT WAS
PUSHED FROM ONE LOCATION TO ANOTHER, AND NEVER EVEN SAW IT MOVED. 

THERE IS NOTHING IN THE RECORD TO INDICATE THAT PETITIONER WAS
RESPONSIBLE FOR THE SEAWORTHINESS OF THE DREDGE, OR THAT HE EVER
PERFORMED OR WAS QUALIFIED TO PERFORM ANY DUTIES OF THAT TYPE.  TRUE,
HE CLEANED LIGHTS, BUT THESE WERE NOT "NAVIGATION" LIGHTS, AS THE
DREDGE DID NOT CARRY THE LATTER EXCEPT WHEN UNDER TOW.  IN EFFECT HE
CLEANED LANTERNS AND PLACED THEM WHEN THE CONSTRUCTION WORK CONTINUED
AT NIGHT.  AGAIN, HE TOOK "SOUNDINGS," BUT IN SPITE OF THE MARITIME
FLAVOR OF THE PHRASE, THE FACTS PERMIT NO SALTY INFERENCE, SINCE THE
SOUNDINGS WERE TAKEN NOT IN AID OF NAVIGATION (THE DREDGE BEING
COMPLETELY STATIONARY AT SUCH TIMES), BUT ONLY TO MEASURE THE AMOUNT OF
SILT PUMPED FROM THE CANAL.  ALL THIS MEANS IS THAT SENKO OCCASIONALLY
MEASURED THE WORK-PROGRESS ON AN EARTH-REMOVAL PROJECT, A TASK ABOUT AS
NAUTICAL AS MEASURING THE DEPT OF A NATURAL SWIMMING POOL UNDER
CONSTRUCTION IN MARSHY GROUND. 

I DO NOT THINK THAT THESE FACTS PERMIT A FINDING THAT PETITIONER WAS
A "MEMBER OF A CREW," MORE OR LESS PERMANENTLY CONNECTED WITH A SHIP'S
COMPANY AND ON BOARD "NATURALLY AND PRIMARILY" IN AID OF NAVIGATION. 
HIS NEXUS WAS NOT WITH A SHIP'S COMPANY BUT WITH A CONSTRUCTION CREW ON
SHORE.  HE SIGNED NO PAPERS TO JOIN THE VESSEL AND HIS EMPLOYMENT WAS
GOVERNED BY NO "ARTICLES"; HE WAS MERELY ASSIGNED BY THE LABORERS'
UNION "PUSHER" TO THIS PARTICULAR TASK ON AN EARTH-REMOVING PROJECT. 
HIS BOSS WAS NOT A SHIP'S OFFICER BUT A CONSTRUCTION SUPERINTENDENT
WHOSE OFFICE WAS ON LAND.  IN FACT THE RECORD IS BARE OF ANY OF THE
THINGS WHICH COMMON SENSE DEMANDS OF A "SHIP'S COMPANY."  THERE WAS NO
CAPTAIN, NO MASTER, NO MATE, NO SHIP'S PAPERS OR SHIP'S DISCIPLINE, NO
LOG, NO GALLEY, NO WATCHES TO STAND.  AND TO SAY THAT SENKO'S JOB WAS
NATURALLY AND PRIMARILY IN AID OF NAVIGATION CAN BE DONE, IT SEEMS TO
ME, ONLY AT THE COST OF REMOVING FROM THOSE WORDS ALL SEMBLANCE OF
CONTENT.  NOT ONLY DID SENKO HAVE NOTHING TO DO WITH NAVIGATION, BUT HE
DID NOT "AID" NAVIGATION IN THE SENSE OF HELPING TO MAINTAIN THE VESSEL
OR ITS CREW IN A CONDITION TO NAVIGATE.  (FN5)  HE WAS SIMPLY A HANDY
MAN AND ASSISTANT FOR A CREW OF MEN OPERATING AN EARTH-REMOVING MACHINE
WHICH HAPPENED TO BE AFLOAT AND WHICH, OCCASSIONALLY AND ALWAYS IN
SENKO'S ABSENCE, WAS PUSHED FROM PLACE TO PLACE. 

THE FACT THAT IT WAS A JURY THAT FOUND SENKO TO BE "A MEMBER OF A
CREW" DOES NOT RELIEVE US OF THE RESPONSIBILITY FOR SEEING TO IT THAT
WHAT IS IN EFFECT A JURISDICTIONAL REQUIREMENT OF THE JONES ACT IS
OBEYED.  THIS COURT HAS MORE THAN ONCE REVIEWED SIMILAR DETERMINATIONS
OF OTHER FACT-FINDING BODIES, AND SET THEM ASIDE WHEN SATISFIED THAT
THEY DID NOT MEET THE REQUIREMENTS OF THE JONES ACT OR LONGSHOREMEN'S
ACT.  CANTEY V. MCLAIN LINE, INC., 312 U.S. 667; NORTON V. WARNER CO.,
321 U.S. 565; DESPER V. STARVED ROCK FERRY CO., 342 U.S. 187.  THE
REASON IS, OF COURSE, AS THE COURT SAID IN THE NORTON CASE, SUPRA, THAT
"WHERE CONGRESS HAS PROVIDED THAT THOSE BASIC RIGHTS (CONFERRED BY THE
JONES ACT) SHALL NOT BE WITHHELD FROM A CLASS OR CLASSES OF MARITIME
EMPLOYEES IT IS OUR DUTY ON JUDICIAL REVIEW TO RESPECT THE COMMAND AND
NOT PERMIT THE EXEMPTION (ARISING FROM THE LONGSHOREMEN'S ACT) TO BE
NARROWED WHETHER BY ADMINISTRATIVE CONSTRUCTION OR OTHERWISE."  321
U.S., AT 571.  (FN6) I CANNOT SEE WHY THIS SAME SOUND REASONING SHOULD
NOT APPLY IN REVERSE, THAT IS, WHERE CONGRESS HAS PROVIDED THAT A RIGHT
SHALL BE WITHHELD FROM A CERTAIN CLASS, AND WHERE THAT CLASS HAS BEEN
NARROWED BY THE "CONSTRUCTION" OF SOME FACT-FINDING BODY.  NOR, I
SUBMIT, SHOULD IT MAKE ANY DIFFERENCE THAT SUCH A BODY IS A JURY. 
(FN7)  A JURY'S VERDICT CASTS NO SUCH SPELL AS SHOULD LEAD THE COURT TO
PERMIT IT TO ROB THIS RESTRICTION OF THE JONES ACT AS MEANINGFUL
SIGNIFICANCE.  THIS, IN MY OPINION, IS WHAT TODAY'S DECISION PERMITS. 
(FN8) 

I WOULD AFFIRM THE DECISION OF THE COURT BELOW.  THIS WOULD NOT LEAVE
PETITIONER WITHOUT A REMEDY.   HE HAS ALREADY APPLIED FOR AND SECURED
WORKMEN'S COMPENSATION UNDER THE ILLINOIS WORKMEN'S COMPENSATION ACT. 
THIS IS THE RELIEF WHICH CONGRESS INTENDED HIM TO HAVE, AND I WOULD NOT
ADD TO IT ANOTHER REMEDY DENIED BY CONGRESS. 

FN1  IT IS ASSUMED THAT THIS DREDGE MAY PROPERLY BE REGARDED AS A
"VESSEL."  AND, WITH THE COURT, I DO NOT REACH THE QUESTION OF WHETHER
THE SWAMPY LAND IN WHICH THE DREDGE WAS OPERATING COULD BE DEEMED
"NAVIGABLE WATER," AN ADDITIONAL FACTOR CONDITIONING THE APPLICABILITY
OF THE JONES ACT. 

FN2  33 U.S.C. SEC. 901 ET SEQ. 

FN3  46 U.S.C. SEC. 688. 

FN4  SEE WARNER V. GOLTRA, 293 U.S. 155; SOUTH CHICAGO COAL & DOCK CO.
V. BASSETT, 309 U.S. 251; NORTON V. WARNER CO., 321 U.S. 565; DESPER V.
STARVED ROCK FERRY CO., 342 U.S. 187; THE BOUND BROOK, 146 F. 160, 164;
THE BUENA VENTURA, 243 F. 797; SENECA WASHED GRAVEL CORP. V. MCMANIGAL,
65 F.2D 779; DEWALD V. BALTIMORE & OHIO R. CO., 71 F.2D 810; DIOMEDE V.
LOWE, 87 F.2F 296; MOORE DRY DOCK CO. V. PILLSBURY, 100 F.2D 245;
WILKES V. MISSISSIPPI RIVER SAND & GRAVEL CO., 202 F.2D 383, 388. 

FN5   I DO NOT, OF COURSE, CONTEND THAT MEN SUCH AS SHIP'S COOKS
CANNOT BE MEMBERS OF A CREW MERELY BECAUSE THEIR ACTUAL JOBS HAVE
NOTHING TO DO WITH MAKING THE VESSEL MOVE.  THE VITAL DISTINCTION IS
THAT SUCH MEN DO CONTRIBUTE TO THE FUNCTIONING OF THE VESSEL AS A
VESSEL - AS A MEANS OF TRANSPORT ON WATER.  NOT SO SENKO, WHOSE DUTIES
HAD ABSOLUTELY NOTHING TO DO WITH THE DREDGE IN ITS ASPECTS AS A
VESSEL. 

FN6  IT IS WORTH NOTING THAT IN NORTON, WHERE THE COURT REVERSED A
DETERMINATION BY A COMMISSIONER THAT A BARGEMAN IN GENERAL CHARGE OF A
BARGE WAS NOT A MEMBER OF A CREW, ALL OF THE FACTORS ON WHICH THE COURT
RELIED ARE CONSPICUOUSLY ABSENT HERE. 

FN7  CERTAINLY SOUTH CHICAGO COAL & DOCK CO. V. BASSETT, SUPRA, UPON
WHICH THE COURT RELIES, DOES NOT SUGGEST THAT A JURY'S VERDICT ON THIS
ISSUE IS TO BE ACCORDED SOME SPECIAL SANCTITY.  THAT CASE SIMPLY HELD
THAT A DISTRICT COURT COULD NOT GRANT A TRIAL DE NOVO ON AN ISSUE
WITHIN THE PRIMARY JURISDICTION OF THE ADMINISTRATOR, UNDER THE
LONGSHOREMEN'S ACT.  THERE IS NO COMPARABLE FACT-FINDING PROCEDURE
UNDER THE JONES ACT.  MOREOVER, DESPITE THE FACT THAT THE
LONGSHOREMEN'S ACT GAVE THE ADMINISTRATOR "FULL POWER AND AUTHORITY TO
HEAR AND DETERMINE ALL QUESTIONS IN RESPECT OF" CLAIMS UNDER THE ACT,
THIS COURT DID IN FACT EXAMINE THE ADMINISTRATOR'S DETERMINATION THAT
THE PLAINTIFF THERE WAS NOT A MEMBER OF A CREW, AND SUSTAINED IT ONLY
AFTER CONCLUDING THAT IT WAS SUPPORTED BY THE EVIDENCE.  FURTHER, THE
COURT'S CITATION OF BASSETT IN CANTEY V. MCLAIN LINE, INC., SUPRA,
WOULD SEEM IN CONTEXT TO IMPLY THAT THE COURT REGARDED THE RESULT IN
BASSETT AS REFLECTING ITS OWN INDEPENDENT DETERMINATION AS TO THE
STATUS OF THE PETITIONER THERE, RATHER THAN AS A DECISION PASSING
MERELY ON THE SCOPE OF JUDICIAL REVIEW TO BE ACCORDED TO THE
DETERMINATION OF THE ADMINISTRATOR.  AND, IF THAT BE SO, BASSETT SHOULD
SURELY CONTROL THE RESULT HERE, SINCE IF THE BASSETT PETITIONER WAS AS
A MATTER OF LAW NOT A "MEMBER OF A CREW," A FORTIORI, SENKO WAS NOT. 

FN8  GIANFALA V. TEXAS CO., 350 U.S. 879, SHOULD NOT BE REGARDED AS
AN OBSTACLE TO REACHING WHAT, IN MY VIEW, IS PLAINLY THE RIGHT RESULT
HERE.  THE PETITIONER IN GIANFALA AT LEAST PLAYED A PART IN THE
OPERATION OF MOVING THE BARGE, AND THUS ARGUABLY WAS PERFORMING A
FUNCTION "IN AID OF" NAVIGATION.  MOREOVER, THE PER CURIAM ORDER IN
GIANFALA, ENTERED SOLELY ON THE BASIS OF THE PETITION FOR CERTIORARI,
WITHOUT THE BENEFIT OF AN OPPOSING BRIEF OR ORAL ARGUMENT, CAN SCARCELY
BE REGARDED AS A PRECEDENT OF MUCH SIGNIFICANCE. 
..END :





















BUTLER V. MICHIGAN 352 U.S. 380 


NO. 16.  ARGUED OCTOBER 16, 1956 - DECIDED FEBRUARY 25, 1957 -
REVERSED. 


MISDEMEANOR TO SELL OR MAKE AVAILABLE TO THE GENERAL READING PUBLIC ANY
BOOK CONTAINING OBSCENE LANGUAGE "TENDING TO THE CORRUPTION OF THE
MORALS OF YOUTH."  FOR SELLING TO AN ADULT POLICE OFFICER A BOOK WHICH
THE TRIAL JUDGE FOUND TO HAVE SUCH A POTENTIAL EFFECT ON YOUTH,
APPELLANT WAS CONVICTED OF A VIOLATION OF THIS SECTION.  HELD:  THE
STATUTE VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
AND THE CONVICTION IS REVERSED.  PP. 380-384. 

BUTLER V. MICHIGAN. 

APPEAL FROM THE RECORDER'S COURT OF THE CITY OF DETROIT, MICHIGAN. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE APPEAL FROM A JUDGMENT OF CONVICTION ENTERED BY THE RECORDER'S
COURT OF THE CITY OF DETROIT, MICHIGAN, CHALLGENGES THE
CONSTITUTIONALITY OF THE FOLLOWING PROVISION, SEC. 343, OF THE MICHIGAN
PENAL CODE: 

"ANY PERSON WHO SHALL IMPORT, PRINT, PUBLISH, SELL, POSSESS WITH THE
INTENT TO SELL, DESIGN, PREPARE, LOAN, GIVE AWAY, DISTRIBUTE OR OFFER
FOR SALE, ANY BOOK, MAGAZINE, NEWSPAPER, WRITING, PAMPHLET, BALLAD,
PRINTED PAPER, PRINT, PICTURE, DRAWING, PHOTOGRAPH, PUBLICATION OR
OTHER THING, INCLUDING ANY RECORDINGS, CONTAINING OBSCENE, IMMORAL,
LEWD OR LASCIVIOUS LANGUAGE, OR OBSCENE, IMMORAL, LEWD OR LASCIVIOUS
PRINTS, PICTURES, FIGURES OR DESCRIPTIONS, TENDING TO INCITE MINORS TO
VIOLENT OR DEPRAVED OR IMMORAL ACTS, MANIFESTLY TENDING TO THE
CORRUPTION OF THE MORALS OF YOUTH, OR SHALL INTRODUCE INTO ANY FAMILY,
SCHOOL OR PLACE OF EDUCATION OR SHALL BUY, PROCURE, RECEIVE OR HAVE IN
HIS POSSESSION, ANY SUCH BOOK, PAMPHLET, MAGAZINE, NEWSPAPER, WRITING,
BALLAD, PRINTED PAPER, PRINT, PICTURE, DRAWING, PHOTOGRAPH, PUBLICATION
OR OTHER THING, EITHER FOR THE PURPOSE OF SALE, EXHIBITION, LOAN OR
CIRCULATION, OR WITH INTENT TO INTRODUCE THE SAME INTO ANY FAMILY,
SCHOOL OR PLACE OF EDUCATION, SHALL BE GUILTY OF A MISDEMEANOR." 

APPELLANT WAS CHARGED WITH ITS VIOLATION FOR SELLING TO A POLICE
OFFICER WHAT THE TRIAL JUDGE CHARACTERIZED AS "A BOOK CONTAINING
OBSCENE, IMMORAL, LEWD, LASCIVIOUS LANGUAGE, OR DESCRIPTIONS, TENDING
TO INCITE MINORS TO VIOLENT OR DEPRAVED OR IMMORAL ACTS, MANIFESTLY
TENDING TO THE CORRUPTION OF THE MORALS OF YOUTH."  APPELLANT MOVED TO
DISMISS THE PROCEEDING ON THE CLAIM THAT APPLICATION OF SEC. 343 UNDULY
RESTRICTED FREEDOM OF SPEECH AS PROTECTED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT IN THAT THE STATUE (1) PROHIBITED DISTRIBUTION
OF A BOOK TO THE GENERAL PUBLIC ON THE BASIS OF THE UNDESIRABLE
INFLUENCE IT MAY HAVE UPON YOUTH; (2) DAMNED A BOOK AND PROSCRIBED ITS
SALE MERELY BECAUSE OF SOME ISOLATED PASSAGES THAT APPEARED
OBJECTIONABLE WHEN DIVORCED FROM THE BOOK AS A WHOLE; AND (3) FAILED TO
PROVIDE A SUFFICIENTLY DEFINITE STANDARD OF GUILT.  AFTER HEARING THE
EVIDENCE, THE TRIAL JUDGE DENIED THE MOTION, AND, IN AN ORAL OPINION,
HELD THAT "  ...  THE DEFENDANT IS GUILTY BECAUSE HE SOLD A BOOK IN THE
CITY OF DETROIT CONTAINING THIS LANGUAGE (THE PASSAGES DEEMED
OFFENSIVE), AND ALSO BECAUSE THE COURT FEELS THAT EVEN VIEWING THE BOOK
AS A WHOLE, IT (THE OBJECTIONABLE LANGUAGE) WAS NOT NECESSARY TO THE
PROPER DEVELOPMENT OF THE THEME OF THE BOOK NOR OF THE CONFLICT
EXPRESSED THEREIN."  APPELLANT WAS FINED $100. 

PRESSING HIS FEDERAL CLAIMS, APPELLANT APPLIED FOR LEAVE TO APPEAL TO
THE SUPREME COURT OF MICHIGAN.  ALTHOUGH THE STATE CONSENTED TO THE
GRANTING OF THE APPLICATION "BECAUSE THE ISSUES INVOLVED IN THIS CASE
ARE OF GREAT PUBLIC INTEREST, AND BECAUSE IT APPEARS THAT FURTHER
CLARIFICATION OF THE LANGUAGE OF  ...  THE STATUTE IS NECESSARY," LEAVE
TO APPEAL WAS DENIED.  IN VIEW OF THIS DENIAL, THE APPEAL IS HERE FROM
THE RECORDER'S COURT OF DETROIT.  WE NOTED PROBABLE JURISDICTION.  350
U.S. 963. 

APPELLANT'S ARGUMENT HERE TOOK A WIDE SWEEP.  WE NEED NOT FOLLOW
HIM.  THUS, IT IS UNNECESSARY TO DISSECT THE REMARKS OF THE TRIAL JUDGE
IN ORDER TO DETERMINE WHETHER HE CONSTRUED SEC. 343 TO BAN THE
DISTRIBUTION OF BOOKS MERELY BECAUSE CERTAIN OF THEIR PASSAGES, WHEN
VIEWED IN ISOLATION, WERE DEEMED OBJECTIONABLE.  LIKEWISE, WE ARE FREE
TO PUT ASIDE THE CLAIM THAT THE MICHIGAN LAW FALLS WITHIN THE DOCTRINE
WHEREBY A NEW YORK OBSCENITY STATUTE WAS FOUND INVALID IN WINTERS V.
NEW YORK, 333 U.S. 507. 

IT IS CLEAR ON THE RECORD THAT APPELLANT WAS CONVICTED BECAUSE
MICHIGAN, BY SEC. 343, MADE IT AN OFFENSE FOR HIM TO MAKE AVAILABLE FOR
THE GENERAL READING PUBLIC (AND HE IN FACT SOLD TO A POLICE OFFICER) A
BOOK THAT THE TRIAL JUDGE FOUND TO HAVE A POTENTIALLY DELETERIOUS
INFLUENCE UPON YOUTH.  THE STATE INSISTS THAT, BY THIS QUARANTINING THE
GENERAL READING PUBLIC AGAINST BOOKS NOT TOO RUGGED FOR GROWN MEN AND
WOMEN IN ORDER TO SHIELD JUVENILE INNOCENCE, IT IS EXERCISING ITS POWER
TO PROMOTE THE GENERAL WELFARE.  SURELY, THIS IS TO BURN THE HOUSE TO
ROAST THE PIG.  INDEED, THE SOLICITOR GENERAL OF MICHIGAN HAS, WITH
CHARACTERISTIC CANDOR, ADVISED THE COURT THAT MICHIGAN HAS A STATUTE
SPECIFICALLY DESIGNED TO PROTECT ITS CHILDREN AGAINST OBSCENE MATTER
"TENDING TO THE CORRUPTION OF THE MORALS OF YOUTH."*  BUT THE APPELLANT
WAS NOT CONVICTED FOR VIOLATING THIS STATUTE. 

*SECTION 142 OF MICHIGAN'S PENAL CODE PROVIDES: 

"ANY PERSON WHO SHALL SELL, GIVE AWAY OR IN ANY WAY FURNISH TO ANY
MINOR CHILD ANY BOOK, PAMPHLET, OR OTHER PRINTED PAPER OR OTHER THING,
CONTAINING OBSCENE LANGUAGE, OR OBSCENE PRINTS, PICTURES, FIGURES OR
DESCRIPTIONS TENDING TO THE CORRUPTION OF THE MORALS OF YOUTH, OR ANY
NEWSPAPERS, PAMPHLETS OR OTHER PRINTED PAPER DEVOTED TO THE PUBLICATION
OF CRIMINAL NEWS, POLICE REPORTS, OR CRIMINAL DEEDS, AND ANY PERSON WHO
SHALL IN ANY MANNER HIRE, USE OR EMPLOY SUCH CHILD TO SELL, GIVE AWAY,
OR IN ANY MANNER DISTRIBUTE SUCH BOOKS, PAMPHLETS OR PRINTED PAPERS,
AND ANY PERSON HAVING THE CARE, CUSTODY OR CONTROL OF ANY SUCH CHILD,
WHO SHALL PERMIT HIM OR HER TO ENGAGE IN ANY SUCH EMPLOYMENT, SHALL BE
GUILTY OF A MISDEMEANOR." 


"ANY PERSON WHO SHALL EXHIBIT UPON ANY PUBLIC STREET OR HIGHWAY, OR
IN ANY OTHER PLACE WITHIN THE VIEW OF CHILDREN PASSING ON ANY PUBLIC
STREET OR HIGHWAY, ANY BOOK, PAMPHLET OR OTHER PRINTED PAPER OR THING
CONTAINING OBSCENE LANGUAGE OR OBSCENE PRINTS, FIGURES, OR
DESCRIPTIONS, TENDING TO THE CORRUPTION OF THE MORALS OF YOUTH, OR ANY
NEWSPAPERS, PAMPHLETS, OR OTHER PRINTED PAPER OR THING DEVOTED TO THE
PUBLICATION OF CRIMINAL NEWS, POLICE REPORTS OR CRIMINAL DEEDS, SHALL
ON CONVICTION THEREOF BE GUILTY OF A MISDEMEANOR." 

WE HAVE BEFORE US LEGISLATION NOT REASONABLY RESTRICTED TO THE EVIL
WITH WHICH IT IS SAID TO DEAL.   THE INCIDENCE OF THIS ENACTMENT IS TO
REDUCE THE ADULT POPULATION OF MICHIGAN TO READING ONLY WHAT IS FIT FOR
CHILDREN.  IT THEREBY ARBITRARILY CURTAILS ONE OF THOSE LIBERTIES OF
THE INDIVIDUAL, NOW ENSHRINED IN THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, THAT HISTORY HAS ATTESTED AS THE INDISPENSABLE
CONDITIONS FOR THE MAINTENANCE AND PROGRESS OF A FREE SOCIETY.  WE ARE
CONSTRAINED TO REVERSE THIS CONVICTION.  REVERSED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :










NILVA V. UNITED STATES 352 U.S. 385 


NO. 37.  ARGUED NOVEMBER 8, 13, 1956 - DECIDED FEBRUARY 25, 1957 - 227
F.2D 74, 228 F.2D 134, JUDGMENT VACATED AND CASE REMANDED TO THE
DISTRICT COURT. 


IN CONNECTION WITH A TRIAL FOR CONSPIRACY TO VIOLATE THE FEDERAL SLOT
MACHINE ACT, THE COURT ISSUED SUBPOENAS DUCES TECUM DIRECTING A
CORPORATION OWNED BY ONE OF THE DEFENDANTS TO PRODUCE CERTAIN RECORDS
OF PURCHASES AND SALES OF SLOT MACHINES.  PETITIONER, WHO WAS A VICE
PRESIDENT OF THE CORPORATION AND AN ATTORNEY OF RECORD FOR ITS OWNER,
APPEARED ON BEHALF OF THE CORPORATION, PRODUCED CERTAIN RECORDS AND
STATED THAT THEY WERE ALL OF THE SUBPOENAED RECORDS THAT HE COULD
FIND.   UNDER COURT ORDER, ALL RECORDS OF THE CORPORATION WERE
IMPOUNDED BY A FEDERAL MARSHAL AND AMONG THEM WERE FOUND RECORDS OF
PURCHASES AND SALES OF SLOT MACHINES WHICH PETITIONER HAD NOT
PRODUCED.  ON THE DAY AFTER CONVICTION OF THE DEFENDANTS, THE COURT
ORDERED PETITIONER TO APPEAR FOUR DAYS LATER AND SHOW CAUSE WHY HE
SHOULD NOT BE HELD IN CRIMINAL CONTEMPT FOR OBSTRUCTING THE
ADMINISTRATION OF JUSTICE ON THREE SPECIFICATIONS.  AFTER A HEARING,
PETITIONER WAS FOUND GUILTY OF CRIMINAL CONTEMPT ON ALL THREE
SPECIFICATIONS AND WAS GIVEN A GENERAL SENTENCE OF IMPRISONMENT.  ON
APPEAL, THE GOVERNMENT ABANDONED TWO OF THE SPECIFICATIONS BUT
CONTENDED THAT THE SENTENCE SHOULD BE SUSTAINED ON THE THIRD.  HELD: 

1.  THE CONVICTION OF CRIMINAL CONTEMPT ON THE THIRD SPECIFICATION IS
SUSTAINED.  PP.  392-396. 

(A)  A CRIMINAL CONTEMPT IS COMMITTED BY ONE WHO, IN RESPONSE TO A
SUBPOENA CALLING FOR CORPORATE RECORDS, REFUSES TO SURRENDER THEM WHEN
THEY ARE IN EXISTENCE AND WITHIN HIS CONTROL.  P. 392. 

(B)  THE EVIDENCE REASONABLY SUPPORTS THE CONCLUSION THAT THE RECORDS
COVERED BY THE THIRD SPECIFICATION WERE IN EXISTENCE AND WERE WITHIN
PETITIONER'S CONTROL.  PP. 392-394. 

(C)  ALTHOUGH PETITIONER TESTIFIED AT HIS TRIAL THAT HE ATTEMPTED IN
GOOD FAITH TO COMPLY WITH THE SUBPOENAS, THIS TESTIMONY WAS SUBJECT TO
APPRAISAL BY THE TRIAL COURT, AND THE RECORD CONTAINED SUFFICIENT BASIS
TO JUSTIFY THE COURT IN CONCLUDING THAT PETITIONER'S FAILURE TO COMPLY
WITH THE SUBPOENA WAS INTENTIONAL AND WITHOUT "ADEQUATE EXCUSE" WITHIN
THE MEANING OF RULE 17(G) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 
P. 395. 

(D)  IN THE CIRCUMSTANCES OF THIS CASE AND IN VIEW OF THE WIDE
DISCRETION ON SUCH MATTERS VESTED IN THE TRIAL COURT, PETITIONER'S
CLAIM THAT HE WAS NOT ALLOWED ADEQUATE TIME TO PREPARE HIS DEFENSE IS
UNFOUNDED.  P. 395. 

(E)  TRIAL OF PETITIONER BEFORE THE TRIAL JUDGE WHO INITIATED THE
CONTEMPT PROCEEDING WAS NOT IMPROPER, BECAUSE RULE 42(B) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE REQUIRES DISQUALIFICATION OF THE TRIAL
JUDGE ONLY WHEN "THE CONTEMPT CHARGED INVOLVES DISRESPECT TO OR
CRITICISM OF A JUDGE," THE CONTEMPT HERE CHARGED WAS NOT OF THAT KIND,
AND THERE IS NO SHOWING IN THIS CASE OF AN ABUSE OF DISCRETION IN
FAILING TO ASSIGN ANOTHER JUDGE.  PP. 395-396. 

2.  SINCE PETITIONER'S GENERAL SENTENCE FOLLOWED HIS CONVICTION ON
THREE ORIGINAL SPECIFICATIONS AND THE GOVERNMENT HAS ABANDONED TWO OF
THEM, THE TRIAL COURT SHOULD BE GIVEN AN OPPORTUNITY TO RECONSIDER THE
SENTENCE; AND THE SENTENCE IS VACATED AND THE CASE IS REMANDED TO THE
TRIAL COURT FOR THAT PURPOSE.  P. 396. 

NILVA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE, A FEDERAL DISTRICT COURT CONVICTED AN ATTORNEY OF
CRIMINAL CONTEMPT ON THREE SPECIFICATIONS FOR DISOBEYING SUBPOENAS
DUCES TECUM, AND IMPOSED A GENERAL SENTENCE OF IMPRISONMENT FOR A YEAR
AND A DAY.  SINCE THE GOVERNMENT HAS ABANDONED TWO OF THE
SPECIFICATIONS, THE PRINCIPAL QUESTIONS ARE WHETHER THERE IS SUFFICIENT
EVIDENCE TO SUSTAIN THE CONVICTION ON THE THIRD SPECIFICATION STANDING
ALONE, AND, IF SO, WHETHER THE CASE SHOULD BE REMANDED FOR
RESENTENCING.  FOR THE REASONS HEREAFTER STATED, WE ANSWER EACH IN THE
AFFIRMATIVE. 

IN 1953, IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NORTH DAKOTA, PETITIONER, ALLEN I. NILVA, WAS TRIED, WITH ELMO T.
CHRISTIANSON AND HERMAN PASTER, FOR CONSPIRACY TO VIOLATE THE FEDERAL
SLOT MACHINE ACT, 64 STAT. 1134-1136, 15 U.S.C. SECS.  1171-1177. 
CHRISTIANSON WAS THE ATTORNEY GENERAL OF NORTH DAKOTA.  PASTER WAS THE
OWNER OF SEVERAL DISTRIBUTING COMPANIES LOCATED IN ST. PAUL,
MINNESOTA.  PETITIONER WAS AN ATTORNEY IN ST. PAUL, A BROTHER-IN-LAW OF
PASTER, AND AN OFFICER IN SEVERAL OF PASTER'S DISTRIBUTING COMPANIES. 
THE INDICTMENT CHARGED THAT THESE THREE CONSPIRED, WITH OTHERS, TO
ACCUMULATE SLOT MACHINES LATE IN 1950 AND TRANSPORT THEM INTO NORTH
DAKOTA, WHERE THEY WERE TO BE DISTRIBUTED AND OPERATED UNDER THE
PROTECTION OF CHRISTIANSON, WHO WAS TO TAKE OFFICE AS ATTORNEY GENERAL
OF THAT STATE ON JANUARY 2, 1951. 

ON THE FIRST TRIAL, IN 1953, A JURY WAS UNABLE TO AGREE ON THE GUILT
OF CHRISTIANSON AND PASTER BUT ACQUITTED PETITIONER.  IN 1954, IN
PREPARATION FOR A RETRIAL OF CHRISTIANSON AND PASTER, THE SAME COURT
ISSUED SUBPOENAS DUCES TECUM NO. 78, RETURNABLE ON MARCH 22, AND NO.
160, RETURNABLE ON MARCH 29.  EACH WAS ADDRESSED TO THE MAYFLOWER
DISTRIBUTING COMPANY, A ST. PAUL SLOT MACHINE DISTRIBUTING CORPORATION
WHOLLY OWNED BY PASTER.  EACH CALLED FOR THE PRODUCTION OF RECORDS, FOR
CERTAIN PERIODS IN 1950 AND 1951, RELATING TO TRANSACTIONS IN SLOT
MACHINES AND OTHER COIN-OPERATED DEVICES.  (FN1)  EACH WAS SERVED ON
WALTER D. JOHNSON, SECRETARY-TREASURER OF THE COMPANY. 

ON THE DATE SET FOR TRIAL, PASTER, INSTEAD OF PRODUCING THE
SUBPOENAED RECORDS, MOVED TO QUASH THE SUBPOENAS ON THE GROUND THAT THE
COMPANY WAS WHOLLY OWNED BY HIM AND THAT THE SUBPOENAS REQUIRED HIM TO
FURNISH EVIDENCE AGAINST HIMSELF.  THE MOTION WAS DENIED AND, IN
RESPONSE TO THE GOVERNMENT'S REQUEST, THE COURT ORDERED THE SUBPOENAED
RECORDS TO BE PRODUCED "FORTHWITH."  (FN2)  THREE DAYS LATER, ON APRIL
1, PETITIONER, WHO WAS AN ATTORNEY OF RECORD FOR PASTER, APPEARED IN
COURT AND STATED THAT HE WAS THE COMPANY'S VICE-PRESIDENT APPEARING FOR
IT IN ANSWER TO THE SUBPOENAS.  HE SAID THAT "IN RESPONSE TO THIS
SUBPOENA I PERSONALLY, WITH THE AID OF PEOPLE IN THE OFFICE FORCE,
SEARCHED ALL OF OUR RECORDS IN AN ATTEMPT TO COMPLY WITH YOUR SUBPOENA
AND HAVE BROUGHT ALL OF THE EVIDENCE I COULD TO COMPLY THEREWITH." 
HOWEVER, WHEN THE GOVERNMENT ASKED FOR THE RECORDS OF PURCHASES AND
SALES OF SLOT MACHINES CALLED FOR BY THE SUBPOENAS, HE STATED THAT HE
HAD BEEN UNABLE TO LOCATE THEM AND SUGGESTED THAT SOME OF THE COMPANY'S
RECORDS HAD BEEN TRANSFERRED TO ST. LOUIS IN CONNECTION WITH A
CONSPIRACY CASE PENDING THERE ON APPEAL.  (FN3) 

THE TRIAL COURT, BEING CONVINCED, AS IT LATER STATED, THAT PETITIONER
WAS GIVING FALSE AND EVASIVE TESTIMONY, ISSUED AN ORDER RECITING THE
FAILURE OF THE OFFICERS OF THE COMPANY TO PRODUCE THE SUBPOENAED
RECORDS AND ORDERING ALL RECORDS OF THE COMPANY IMPOUNDED BY THE UNITED
STATES MARSHAL.  MANY OF THE COMPNAY'S RECORDS IN ST. PAUL WERE AT ONCE
IMPOUNDED AND ACCOUNTANTS FROM THE FEDERAL BUREAU OF INVESTIGATION
PROMPTLY EXAMINED THEM.  AMONG THEM WERE RECORDS OF THE COMPANY'S
PURCHASES AND SALES OF SLOT MACHINES IN 1950 AND 1951.  AT THE
CONSPIRACY TRIAL ON APRIL 12, AN F.B.I. AGENT NAMED PETERSON TESTIFIED
ABOUT THOSE RECORDS FROM SUMMARIES HE HAD COMPILED. 

ON APRIL 15, THE TRIAL COURT FOUND IT APPARENT THAT PETITIONER'S
TESTIMONY "WAS EVASIVE OR FALSE, OR BOTH," AND ORDERED HIM NOT TO LEAVE
ITS JURISDICTION WITHOUT PERMISSION.  NO FURTHER ACTION WAS TAKEN AT
THAT TIME "BECAUSE IT WAS THE COURT'S DESIRE THAT THE JURY (IN THE
CONSPIRACY CASE) SHOULD NOT LEARN OF THE AFFAIR DURING THE TRIAL, SO
THAT THE DEFENDANTS THEREIN WOULD NOT BE PREJUDICED BY IT IN ANY WAY." 

ON APRIL 22, THE JURY FOUND CHRISTIANSON AND PASTER GUILTY OF THE
CONSPIRACY CHARGED.  (FN4)  ON THE FOLLOWING DAY, THE COURT DIRECTED
PETITIONER TO APPEAR ON APRIL 27 AND SHOW CAUSE WHY HE SHOULD NOT BE
HELD IN CRIMINAL CONTEMPT FOR HAVING OBSTRUCTED THE ADMINISTRATION OF
JUSTICE.  (FN5)  IN THREE SPECIFICATIONS, THE COURT CHARGED PETITIONER
WITH: 

"1.  GIVING FALSE AND EVASIVE TESTIMONY UNDER OATH ON APRIL 1, 1954,
UPON ANSWERING, AS VICE-PRESIDENT OF THE MAYFLOWER DISTRIBUTING
COMPANY, SUBPOENAES DUCES TECUM DIRECTED TO IT  ...  . 

"2.  DISOBEDIENCE TO SUBPOENA DUCES TECUM NO. 78, DIRECTED TO THE
MAYFLOWER DISTRIBUTING COMPANY ...  IN THAT THE FOLLOWING ARTICLES WERE
NOT PRODUCED, AS REQUIRED THEREBY: 

"(A)  ORIGINAL LEDGER SHEET REFLECTING THE ACCOUNT OF STANLEY BAEDER,
NOVEMBER 1, 1950 THROUGH AUGUST 30, 1951: 

     *         *         *         *         * 

"3.  DISOBEDIENCE TO SUBPOENA DUCES TECUM NO. 160 DIRECTED TO THE
MAYFLOWER DISTRIBUTING COMPANY, AND DISOBEDIENCE TO THE ORDER OF THE
COURT, MADE ON MARCH 29, 1954, DIRECTING THE MAYFLOWER DISTRIBUTING
COMPANY TO PRODUCE RECORDS FORTHWITH, IN THE CASE OF UNITED STATES OF
AMERICA V. ELMO T. CHRISTIANSON AND HERMAN PASTER, CRIMINAL NO. 8158,
IN THAT THE FOLLOWING ARTICLES WERE NOT PRODUCED, AS REQUIRED THEREBY:

                   "(A)  GENERAL LEDGER 1950:

        "(B)  GENERAL LEDGER 1951:

"(C)  JOURNAL 1950-1951:

                    "(D)  CHECK REGISTER 1950-1951; ...  ." 

AT 10 A.M., ON APRIL 27, PETITIONER APPEARED AS DIRECTED.  THE COURT
GAVE HIS COUNSEL ACCESS TO THE IMPOUNDED RECORDS AND POSTPONED THE
HEARING UNTIL 3 P.M. AT THAT TIME, THE IMPOUNDED BOOKS AND RECORDS WERE
PRESENT ON THE TRIAL TABLE AND PETITIONER TOOK THE STAND IN HIS OWN
DEFENSE.  HE IDENTIFIED ITEMS (A), (B), (C) AND (D) OF THE 22 LISTED IN
THE THIRD SPECIFICATION AND INTRODUCED THOSE RECORDS AS HIS EXHIBITS. 
ITEM (A) WAS THE COMPANY'S GENERAL LEDGER FOR 1950.  IT CONTAINED A
RECORD OF SALES OF NEW SLOT MACHINES DURING OCTOBER 1950 - JANUARY
1951; SALES OF USED SLOT MACHINES DURING JULY 1950 - JANUARY 1951; AND
PURCHASES OF USED SLOT MACHINES DURING AUGUST 1950 - JANUARY 1951. 
PETITIONER ADMITTED HAVING PREVIOUSLY EXAMINED THE COMPANY'S 1950 AND
1951 GENERAL LEDGERS BUT SAID THAT HE HAD NOT FOUND EVIDENCE OF SLOT
MACHINE PURCHASES AND SALES.  HE ALSO ADMITTED THAT HE HAD NOT EXAMINED
19 OF THE 22 ITEMS LISTED IN SPECIFICATION NO. 3.  AT THE CLOSE OF THE
HEARING, OVER PETITIONER'S OBJECTION, A TRANSCRIPT OF THE TESTIMONY OF
F.B.I. AGENT PETERSON, GIVEN AT THE CONSPIRACY TRIAL, WAS ADMITTED IN
EVIDENCE IN THE CONTEMPT PROCEEDING WITHOUT OPPORTUNITY FOR PETITIONER
TO CONFRONT HIM OR CROSS-EXAMINE HIM IN THAT PROCEEDING. 

AFTER FINDING PETITIONER GUILTY OF CRIMINAL CONTEMPT ON EACH OF THE
THREE SPECIFICATIONS, THE COURT GAVE HIM A GENERAL SENTENCE OF
IMPRISONMENT FOR A YEAR AND A DAY.  ON JUNE 3, IT RELEASED HIM ON BAIL
BUT DENIED HIS MOTION TO SUSPEND HIS SENTENCE AND GRANT HIM PROBATION. 

THE COURT OF APPEALS AFFIRMED THE JUDGMENT, 227 F.2D 74, AND DENIED
REHEARING, 228 F.2D 134.  WE GRANTED CERTIORARI.  350 U.S. 1005. 

ALTHOUGH THE DISTRICT COURT FOUND PETITIONER GUILTY OF CONTEMPT ON
EACH OF THE THREE SPECIFICATIONS, THE GOVERNMENT NOW CONCEDES THAT THE
CONVICTIONS ON THE FIRST TWO ARE OF DOUBTFUL VALIDITY AND DOES NOT
UNDERTAKE TO SUSTAIN THEM.  CONSEQUENTLY, WE DO NOT CONSIDER THEM
HERE.  (FN6)

THIS REDUCES THE CASE TO THE CHARGE THAT PETITIONER WILFULLY
DISOBEYED THE COURT'S ORDER TO PRODUCE CERTAIN CORPORATE RECORDS
REQUIRED BY SUBPOENA NO. 160.  ON THAT ISSUE, IT IS SETTLED THAT A
CRIMINAL CONTEMPT IS COMMITTED BY ONE WHO, IN RESPONSE TO A SUBPOENA
CALLING FOR CORPORATION OR ASSOCIATION RECORDS, REFUSES TO SURRENDER
THEM WHEN THEY ARE IN EXISTENCE AND WITHIN HIS CONTROL.  UNITED STATES
V. FLEISCHMAN, 339 U.S. 349; UNITED STATES V. WHITE, 322 U.S. 694;
WILSON V. UNITED STATES, 221 U.S. 361; AND SEE UNITED STATES V.
PATTERSON, 219 F.2D 659. 

THE GOVERNMENT RESTS ITS CASE ON PETITIONER'S FAILURE TO PRODUCE THE
RECORDS LISTED IN THE FIRST FOUR ITEMS SET FORTH IN SPECIFICATION NO.
3, I.E., THE GENERAL LEDGER FOR 1950, THE GENERAL LEDGER FOR 1951, THE
JOURNAL FOR 1950-1951, AND THE CHECK REGISTER FOR 1950-1951.  THESE ARE
IMPOUNDED RECORDS WHICH PETITIONER INTRODUCED IN EVIDENCE AS HIS
EXHIBITS.  (FN7)  THE FIRST IS THE GENERAL LEDGER FOR 1950, SHOWN BY
THE LIST OF PETITIONER'S EXHIBITS TO INCLUDE RECORDS OF PURCHASES AND
SALES MADE DURING PART OF THE PERIOD CALLED FOR BY SUBPOENA NO. 160. 
(FN8)  PETITIONER ADMITS HAVING PREVIOUSLY EXAMINED THE FIRST TWO
ITEMS. 

PETITIONER WAS A "NOMINAL" VICE-PRESIDENT OF THE CORPORATION; HE
RENDERED IT LEGAL AND ADMINISTRATIVE SERVICES OF MANY KINDS; HE WAS A
BROTHER-IN-LAW OF ITS SOLE OWNER AND PRESIDENT; HE APPEARED IN COURT AS
ITS OFFICIAL REPRESENTATIVE IN ANSWER TO THE SUBPOENAS AND REPRESENTED
THAT HE HAD BROUGHT WITH HIM ALL OF THE SUBPOENAED RECORDS THAT HE AND
THE OFFICE FORCE COULD FIND. 

THE SUBPOENAS HAD BEEN SERVED ON THE SECRETARY-TREASURER OF THE
CORPORATION, WHO, IN TURN, HAD ENTRUSTED TO PETITIONER THE DUTY OF
SATISFYING THEM.  WHEN PETITIONER APPEARED IN COURT IN RESPONSE TO THE
SUBPOENAS, HE DID NOT CLAIM EITHER WANT OF ACTUAL POSSESSION OF THE
REQUIRED RECORDS OR LACK OF OPPORTUNITY OR AUTHORITY TO PRODUCE THEM. 
SEE UNITED STATES V. BRYAN, 339 U.S. 323, 333; WILSON V. UNITED STATES,
SUPRA, AT 376.  YET HE FAILED TO PRODUCE THE VITAL CORPORATE RECORDS
WHICH THE GOVERNMENT PROMPTLY IMPOUNDED.  IN OUR OPINION, THE EVIDENCE
REASONABLY SUPPORTS THE CONCLUSION THAT THOSE RECORDS WERE IN EXISTENCE
AND WERE WITHIN PETITIONER'S CONTROL. 

PETITIONER CONTENDS THAT HIS TESTIMONY THAT HE ATTEMPTED, IN GOOD
FAITH, TO COMPLY WITH THE SUBPOENAS DISPROVES THE EXISTENCE OF ANY
WILFUL DEFAULT, AND PRESENTS AN "ADEQUATE EXCUSE" FOR HIS FAILURE TO
COMPLY UNDER RULE 17(G), FEDERAL RULES OF CRIMINAL PROCEDURE.  HOWEVER,
HIS PROTESTATIONS OF GOOD FAITH WERE SUBJECT TO APPRAISAL BY THE COURT
THAT HEARD THEM.  IT WAS THE JUDGE OF HIS CREDIBILITY AND OF THE WEIGHT
TO BE GIVEN TO HIS TESTIMONY.  LOPIPARO V. UNITED STATES, 216 F.2D 87,
91.  IN OUR VIEW, THE TRIAL COURT HAD A SUFFICIENT BASIS FOR CONCLUDING
THAT PETITIONER INTENTIONALLY, AND WITHOUT "ADEQUATE EXCUSE," DEFIED
THE COURT.  (FN9)  WE, THEREFORE, AGREE THAT THE RECORD SUSTAINS
PETITIONER'S CONVICTION FOR CRIMINAL CONTEMPT UNDER SPECIFICATION NO.
3. 

PETITIONER CLAIMS THAT HE WAS NOT ALLOWED ADEQUATE TIME TO PREPARE
HIS DEFENSE.  UNDER THE CIRCUMSTANCES OF THIS CASE AND IN VIEW OF THE
WIDE DISCRETION ON SUCH MATTERS PROPERLY VESTED IN THE TRIAL COURT, WE
THINK THIS CLAIM IS UNFOUNDED.  (FN10) 

PETITIONER ALSO CONTENDS THAT, AS A MATTER OF LAW, THIS CONTEMPT
PROCEEDING SHOULD HAVE BEEN HEARD BY A JUDGE OTHER THAN THE ONE WHO
INITIATED THE PROCEEDING.  RULE 42(B), FEDERAL RULES OF CRIMINAL
PROCEDURE, DOES NOT REQUIRE DISQUALIFICATION OF THE TRIAL JUDGE EXCEPT
WHERE "THE CONTEMPT CHARGED INVOLVES DISRESPECT TO OR CRITICISM OF A
JUDGE  ...  ."  (FN11)  CONCEDEDLY, THE CONTEMPT HERE CHARGED WAS NOT
OF THAT KIND.  AND WHILE THERE MAY BE OTHER CASES, BROUGHT UNDER RULE
42(B), IN WHICH IT IS THE BETTER PRACTICE TO ASSIGN A JUDGE WHO DID NOT
PRESIDE OVER THE CASE IN WHICH THE ALLEGED CONTUMACY OCCURRED TO HEAR
THE CONTEMPT PROCEEDING, SUCH AN ASSIGNMENT IS DISCRETIONARY.  IN THE
ABSENCE OF A SHOWING OF AN ABUSE OF THAT DISCRETION, PETITIONER'S
CONVICTION ON SPECIFICATION NO.  3 SHOULD BE SUSTAINED. 

THERE REMAINS A QUESTION AS TO PETITIONER'S GENERAL SENTENCE.  IT WAS
IMPOSED FOLLOWING HIS CONVICTION ON EACH OF THE THREE ORIGINAL
SPECIFICATIONS.  ALTHOUGH THE GOVERNMENT NOW UNDERTAKES TO SUSTAIN BUT
ONE OF THE CONVICTIONS, IT CONTENDS THAT PETITIONER'S SENTENCE SHOULD
BE LEFT AS IT IS BECAUSE IT WAS WITHIN THE TRIAL COURT'S ALLOWABLE
DISCRETION.  WE BELIEVE, HOWEVER, THAT THE COURT SHOULD BE GIVEN AN
OPPORTUNITY TO RECONSIDER PETITIONER'S SENTENCE IN VIEW OF THE FACT
THAT HIS CONVICTION NOW RESTS SOLELY ON THE THIRD SPECIFICATION. 
(FN12) 

ACCORDINGLY, PETITIONER'S CONVICTION FOR CRIMINAL CONTEMPT ON
SPECIFICATION NO. 3 IS AFFIRMED BUT HIS SENTENCE IS VACATED AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR RECONSIDERATION OF HIS
SENTENCE.  IT IS SO ORDERED. 

FN1  SUBPOENA NO. 160 COMMANDED THE CORPORATION TO: 

"COME AND BRING WITH YOU ALL INVOICES, BILLS, CHECKS, SLIPS, PAPERS,
RECORDS, LETTERS, LEDGER SHEETS, BOOKKEEPING RECORDS, JOURNALS AND
COPIES THEREOF BETWEEN, BY OR CONCERNING MAYFLOWER DISTRIBUTING
COMPANY, MADE, ENTERED, SENT OR RECEIVED FROM JULY 1, 1950, THROUGH
APRIL 30, 1951, BOTH DATES INCLUSIVE, REFLECTING ANY AND ALL PURCHASES,
SALES, TRADES, EXCHANGES OR TRANSFERS, BOTH DOMESTIC AND FOREIGN OF ANY
AND ALL SLOT MACHINES, FLAT-TOP OR CONSOLE, COIN OPERATED DEVICE,
WHETHER NEW OR USED WITH ANY PERSON, FIRM OR CONCERN."    FN2  THIS WAS
PURSUANT TO RULE 17(C), FEDERAL RULES OF CRIMINAL PROCEDURE: 

"RULE 17.  SUBPOENA. 

     *         *        *         *         * 

"(C)  FOR PRODUCTION OF DOCUMENTARY EVIDENCE AND OF OBJECTS.  A
SUBPOENA MAY ALSO COMMAND THE PERSON TO WHOM IT IS DIRECTED TO PRODUCE
THE BOOKS, PAPERS, DOCUMENTS OR OTHER OBJECTS DESIGNATED THEREIN.  THE
COURT ON MOTION MADE PROMPTLY MAY QUASH OR MODIFY THE SUBPOENA IF
COMPLIANCE WOULD BE UNREASONABLE OR OPPRESSIVE.  THE COURT MAY DIRECT
THAT BOOKS, PAPERS, DOCUMENTS OR OBJECTS DESIGNATED IN THE SUBPOENA BE
PRODUCED BEFORE THE COURT AT A TIME PRIOR TO THE TRIAL OR PRIOR TO THE
TIME WHEN THEY ARE TO BE OFFERED IN EVIDENCE AND MAY UPON THEIR
PRODUCTION PERMIT THE BOOKS, PAPERS, DOCUMENTS OR OBJECTS OR PORTIONS
THEREOF TO BE INSPECTED BY THE PARTIES AND THEIR ATTORNEYS." 

FN3  SEE NILVA V. UNITED STATES, 212 F.2D 115, DECIDED APRIL 19,
1954.  THIS RELATED TO SAMUEL GEORGE NILVA, NOT THE PETITIONER HEREIN. 

FN4  SEE CHRISTIANSON V. UNITED STATES, 226 F.2D 646. 

FN5  "RULE 42.  CRIMINAL CONTEMPT. 

     *         *         *         *         * 

"(B)  DISPOSITION UPON NOTICE AND HEARING.  A CRIMINAL CONTEMPT
EXCEPT AS PROVIDED IN SUBDIVISION (A) OF THIS RULE SHALL BE PROSECUTED
ON NOTICE.  THE NOTICE SHALL STATE THE TIME AND PLACE OF HEARING,
ALLOWING A REASONABLE TIME FOR THE PREPARATION OF THE DEFENSE, AND
SHALL STATE THE ESSENTIAL FACTS CONSTITUTING THE CRIMINAL CONTEMPT
CHARGED AND DESCRIBE IT AS SUCH.  THE NOTICE SHALL BE GIVEN ORALLY BY
THE JUDGE IN OPEN COURT IN THE PRESENCE OF THE DEFENDANT OR, ON
APPLICATION OF THE UNITED STATES ATTORNEY OR OF AN ATTORNEY APPOINTED
BY THE COURT FOR THAT PURPOSE, BY AN ORDER TO SHOW CAUSE OR AN ORDER OF
ARREST.  THE DEFENDANT IS ENTITLED TO A TRIAL BY JURY IN ANY CASE IN
WHICH AN ACT OF CONGRESS SO PROVIDES.  HE IS ENTITLED TO ADMISSION TO
BAIL AS PROVIDED IN THESE RULES.  IF THE CONTEMPT CHARGED INVOLVES
DISRESPECT TO OR CRITICISM OF A JUDGE, THAT JUDGE IS DISQUALIFIED FROM
PRESIDING AT THE TRIAL OR HEARING EXCEPT WITH THE DEFENDANT'S CONSENT. 
UPON A VERDICT OR FINDING OF GUILT THE COURT SHALL ENTER AN ORDER
FIXING THE PUNISHMENT."  FED.  RULES CRIM. PROC. 

AUTHORITY TO PROSECUTE FOR CRIMINAL CONTEMPT IS FOUND IN RULE 17(G),
FEDERAL RULES OF CRIMINAL PROCEDURE, AND 18 U.S.C. SEC. 401(3). 

FN6  THE GOVERNMENT CONCEDES ALSO THAT THE TRANSCRIPT OF AGENT
PETERSON'S TESTIMONY AT THE CONSPIRACY TRIAL SHOULD NOT HAVE BEEN
ADMITTED IN EVIDENCE IN THE CONTEMPT PROCEEDING AND DOES NOT RELY ON IT
HERE.  THIS CONCESSION DOES NOT MATERIALLY AFFECT THE GOVERNMENT'S CASE
UNDER SPECIFICATION NO. 3, BECAUSE THE BOOKS AND RECORDS NAMED IN THAT
SPECIFICATION WERE PROPERLY INTRODUCED BY PETITIONER AS EXHIBITS IN THE
CONTEMPT PROCEEDING AND SPEAK FOR THEMSELVES. 

FN7  THE PARTIES STIPULATED THAT THESE EXHIBITS WOULD BE A PART OF
THE RECORD ON APPEAL.  THEIR CONTENTS ARE SUMMARIZED IN A LIST OF
EXHIBITS WHICH IS INCLUDED IN A SUPPLEMENTAL RECORD, FIRST INTRODUCED
BEFORE THE COURT OF APPEALS.  ALTHOUGH PETITIONER MOVED TO STRIKE OUT
MOST OF THAT SUPPLEMENTAL RECORD, HE OMITTED FROM HIS MOTION ALL
REFERENCES TO THE PAGES CONTAINING THIS LIST AND HE HAS NOT OBJECTED TO
ITS PRESENCE IN THE RECORD BEFORE US. 

FN8  AMONG THE RECORDS CALLED FOR BY SUBPOENA NO. 160 ARE "LEDGER
SHEETS" REFLECTING PURCHASES AND SALES OF SLOT MACHINES BETWEEN JULY 1,
1950, AND APRIL 30, 1951.  SEE NOTE 1, SUPRA.  THE LIST OF EXHIBITS
SHOWS THAT EXHIBIT NO. 1 INCLUDES MAYFLOWER'S GENERAL LEDGER FOR 1950
IN WHICH THE: 

RECORDS INDICATE THAT "SALES - BELLS NEW" (SLOT MACHINES) WERE MADE
AS FOLLOWS: 

     *        *         *         *         *

        OCTOBER 1950                                     $650.00

        DECEMBER 1950                                   3,631.00

JANUARY 1951                                    9,000.00

                                               TOTAL $13,501.00

                    SALES - BELLS USED (SLOT MACHINES): 

     *         *         *         *         *

  JULY 1950                                      $1.249.00

        AUGUST 1950                                     3,160.00

         SEPTEMBER 1950                                  2,125.00

  OCTOBER 1950                                   (1,140.00)

        NOVEMBER 1950           625.00

        DECEMBER 1950               14,104.00

        JANUARY 1951                      50,005.00

                  TOTAL $72,499.50 

THE RECORDS FURTHER INDICATE THAT THE FOLLOWING PURCHASES WERE MADE:

       "PURCHASES - BELLS NEW" (SLOT MACHINES): 

     *         *         *         *         *

"PURCHASES - BELLS USED: (SLOT MACHINES): 

     *    *         *         *         *

       AUGUST 1950                                   $320.00

         "    1950                                        400.00

"    1950                                        980.00

  SEPTEMBER 1950                                     990.00

         "       1950 315.00

      "       1950    (80.00)

  NOVEMBER 1950        100.00

       DECEMBER 1950            10,620.00

       JANUARY 1951                      965.00)

         "     1951                            3,815.00) $11,960.00

         "     1951                                     7,180.00)

TOTAL                                         $25,784.00 

EXHIBIT NO. 2 IS DESCRIBED AS A LEDGER CONTAINING, AMONG OTHER
RECORDS, THE MAYFLOWER - ST. PAUL GENERAL JOURNAL MARCH 31, 1951, TO
JANUARY 31, 1952, AND GENERAL LEDGER FEBRUARY 1, 1951, TO JANUARY 31,
1952. 

EXHIBIT NO. 3 IS DESCRIBED AS THE MAYFLOWER - ST. PAUL JOURNAL
FEBRUARY 1, 1946, TO JANUARY 31, 1953. 

EXHIBIT NO. 4 IS DESCRIBED AS THE CHECK REGISTER FOR MAYFLOWER - ST.
PAUL JULY 1, 1946, TO JANUARY 31, 1955.  ITS CONTENTS ARE DESCRIBED AS
RELATING TO PURCHASES OF USED SLOT MACHINES. 

FN9  WHETHER PROOF OF A LESSER SPECIES OF INTENT WILL SATISFY THE
REQUIREMENTS FOR A CONVICTION OF CRIMINAL CONTEMPT NEED NOT BE DECIDED
HERE.  SEE, GENERALLY, MOSKOVITZ, CONTEMPT OF INJUNCTIONS, CIVIL AND
CRIMINAL, 43 COL. L. REV. 780, 793-796 (1943); NOTE, THE INTENT ELEMENT
IN CONTEMPT OF INJUNCTIONS, DECREES AND COURT ORDERS, 48 MICH. L. REV.
860, 864-869 (1950). 

FN10  PETITIONER WAS AN ATTORNEY FAMILIAR WITH THE CASE.  HE APPEARED
IN ANSWER TO THE SUBPOENAS ON APRIL 1; AFTER THE IMPOUNDED RECORDS WERE
PRODUCED, HE WAS, ON APRIL 15, WARNED NOT TO LEAVE THE JURISDICTION OF
THE COURT; THE ORDER FOR HIM TO SHOW CAUSE WHY HE SHOULD NOT BE HELD IN
CRIMINAL CONTEMPT WAS ISSUED ON APRIL 23, RETURNABLE ON APRIL 27; AND
ON APRIL 27 HIS HEARING WAS POSTPONED FIVE HOURS TO GIVE HIS COUNSEL
EXTRA TIME TO EXAMINE THE IMPOUNDED RECORDS. 

FN11  SEE NOTE 5, SUPRA. 

FN12  CF. YASUI V. UNITED STATES, 320 U.S. 115, 117; HUSTY V. UNITED
STATES, 282 U.S. 694, 703. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

THIS CONVICTION FOR CRIMINAL CONTEMPT SHOULD BE REVERSED AND THE CASE
SHOULD BE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS THAT IT BE
TRIED BEFORE SOME DISTRICT JUDGE OTHER THAN THE ONE WHO PREFERRED THE
CHARGES AGAINST THE PETITIONER AND THEN CONVICTED HIM.  THERE HAVE
PROBABLY BEEN FEW CASES IN THE ANNALS OF THIS COURT WHERE THE
PROCEEDINGS BELOW WERE AFFLICTED WITH SO MANY FLAGRANT ERRORS.  THE
GOVERNMENT HAS CONFESSED MOST OF THESE ERRORS, BUT CONTENDS THAT ENOUGH
CAN BE SALVAGED FROM THE RECORD TO SUSTAIN THE CONVICTION. 

PETITIONER, WHO IS A LAWYER, WAS A VICE PRESIDENT OF THE MAYFLOWER
DISTRIBUTING COMPANY.  APPARENTLY HE SERVED LARGELY AS A NOMINAL
OFFICER AND PERFORMED ONLY MINOR FUNCTIONS FOR THIS COMPANY.  HE WAS
INDICTED WITH THE PRESIDENT OF THE COMPANY AND ANOTHER MAN ON A CHARGE
THAT THEY HAD CONSPIRED UNLAWFULLY TO TRANSPORT GAMBLING DEVICES IN
INTERSTATE COMMERCE.  A JURY ACQUITTED PETITIONER BUT FAILED TO REACH A
VERDICT ON THE CHARGE AGAINST THE OTHER TWO DEFENDANTS.  SUBSEQUENTLY A
NEW TRIAL WAS ORDERED FOR THESE TWO DEFENDANTS.  PRIOR TO THIS NEW
TRIAL, THE GOVERNMENT PROCURED THE ISSUANCE OF TWO VERY BROAD SUBPOENAS
THAT DIRECTED THE MAYFLOWER DISTRIBUTING COMPANY TO PRODUCE A LARGE
NUMBER OF ITS CORPORATE RECORDS, WHICH THE GOVERNMENT ANTICIPATED MIGHT
SHOW ILLEGAL TRANSACTIONS IN INTERSTATE COMMERCE.  THESE SUBPOENAS WERE
SERVED ON THE COMPANY'S SECRETARY BUT SINCE HE WAS OCCUPIED ELSEWHERE
HE ASKED THE PETITIONER TO PRODUCE THE MATERIAL DEMANDED BY THE
SUBPOENAS.  ON RATHER SHORT NOTICE PETITIONER PRODUCED A SUBSTANTIAL
NUMBER OF RECORDS IN COMPLIANCE WITH THESE ORDERS. 

HOWEVER, THE GOVERNMENT, BELIEVING THAT ALL OF THE COMPANY'S RECORDS
CALLED FOR BY THE SUBPOENAS HAD NOT BEEN PRODUCED, EXAMINED PETITIONER
UNDER OATH BEFORE THE TRIAL JUDGE IN AN EFFORT TO DETERMINE THE EXTENT
OF HIS COMPLIANCE.  PETITIONER TESTIFIED THAT HE HAD PRODUCED AS MANY
OF THE RECORDS DEMANDED AS HE COULD LOCATE BY A DILIGENT SEARCH;
NEVERTHELESS THE TRIAL JUDGE ORDERED THAT ALL OF THE COMPANY'S RECORDS
BE IMPOUNDED.  GOVERNMENT AGENTS TOOK CHARGE OF THESE IMPOUNDED RECORDS
AND EXAMINED THEM.  THE GOVERNMENT CLAIMS THAT THIS MATERIAL INCLUDED
BOOKS AND DOCUMENTS CALLED FOR BY THE SUBPOENAS BUT NOT PRODUCED BY THE
PETITIONER. 

THE TRIAL JUDGE ISSUED AN ORDER UNDER RULE 42(B) OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE FOR PETITIONER TO SHOW CAUSE WHY HE SHOULD NOT BE
HELD IN CRIMINAL CONTEMPT OF THE COURT.  THIS CHARGE OF CONTEMPT WAS
BASED ON THREE SPECIFICATIONS:  (1) THAT PETITIONER HAD TESTIFIED
FALSELY AND EVASIVELY WHEN ASKED UNDER OATH WHETHER HE HAD PRODUCED ALL
THE MATERIALS CALLED FOR BY THE SUBPOENAS; (2) THAT HE HAD FAILED TO
COMPLY WITH THE FIRST SUBPOENA BY NOT PRODUCING FIVE ITEMS; AND (3)
THAT HE HAD DISOBEYED THE SECOND SUBPOENA BY FAILING TO PRODUCE TWENTY
TWO ITEMS.  FOUR DAYS AFTER THIS ORDER WAS ISSUED, A HEARING ON THE
CONTEMPT CHARGE WAS HELD BEFORE THE SAME TRIAL JUDGE WHO SAT IN THE
RETRIAL OF THE TWO OTHER DEFENDANTS AND WHO PREFERRED THE CHARGE
AGAINST THE PETITIONER.  THE JUDGE FOUND PETITIONER GUILTY ON ALL THREE
SPECIFICATIONS OF CONTEMPT AND SENTENCED HIM TO ONE YEAR AND ONE DAY
IMPRISONMENT.  THE COURT OF APPEALS AFFIRMED THE JUDGMENT.  (FN1) 

THE GOVERNMENT CONFESSES THAT THE CONVICTION ON THE FIRST TWO
SPECIFICATIONS OF CONTEMPT CANNOT BE SUSTAINED.  AS IT CONCEDES, THERE
WAS NOT ONLY INSUFFICIENT EVIDENCE TO SUPPORT THE CHARGES MADE IN THESE
SPECIFICATIONS BUT THE TRIAL COURT ADMITTED AND RELIED ON EVIDENCE
WHICH WAS CLEARLY INCOMPETENT.  IN ADDITION, PETITIONER WAS DENIED HIS
CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES WHOSE
TESTIMONY WAS USED AGAINST HIM.  AND IN REGARD TO THE FIRST
SPECIFICATION ALLEGING FALSE AND EVASIVE TESTIMONY UNDER OATH,
PETITIONER'S CONDUCT, AT MOST, ONLY INVOLVED PERJURY, A CRIME THAT
CANNOT BE PUNISHED BY USE OF THE CONTEMPT POWER.  (FN2) NEVERTHELESS,
THE GOVERNMENT WOULD HAVE US UPHOLD THE CONVICTION AND SENTENCE BELOW
ON THE BASIS OF THE FINDING OF GUILT ON THE THIRD SPECIFICATION ALONE,
THE ALLEGED FAILURE TO COMPLY WITH THE SECOND SUBPOENA. 

A FUNDAMENTAL PREMISE OF OUR CRIMINAL LAW IS THAT THE PROSECUTION HAS
THE BURDEN OF PROVING BEYOND A REASONABLE DOUBT THAT THE ACCUSED
COMMITTED THE OFFENSE CHARGED.  AND THIS COURT HAS REPEATEDLY
EMPHASIZED THAT A PROSECUTION FOR CRIMINAL CONTEMPT SHOULD BE TREATED
THE SAME AS ANY OTHER CRIMINAL PROSECUTION IN THIS RESPECT.  (FN3)
BEFORE PETITIONER COULD BE FOUND GUILTY OF CRIMINAL CONTEMPT FOR
FAILING TO COMPLY WITH A SUBPOENA, THE PROSECUTION HAD THE BURDEN OF
SHOWING BEYOND A REASONABLE DOUBT THAT HE INTENTIONALLY REFUSED TO OBEY
THE COURT'S ORDER BY NOT PRODUCING THE MATERIALS DEMANDED EVEN THOUGH
THEY WERE AVAILABLE TO HIM.  IN THIS CASE THE RECORD DOES NOT CONTAIN
ENOUGH COMPETENT EVIDENCE FOR THE TRIER OF FACT TO FIND THAT PETITIONER
INTENTIONALLY REFUSED TO COMPLY WITH THE SECOND SUBPOENA OR EVEN THAT
THE BOOKS AND DOCUMENTS DEMANDED BY THAT SUBPOENA WERE AVAILABLE TO
HIM. 

ONLY FOUR OF THE TWENTY-TWO DOCUMENTS REFERRED TO IN THE THIRD
SPECIFICATION WERE INTRODUCED IN EVIDENCE AND, AS THE GOVERNMENT
RECOGNIZES, THE CONVICTION MUST REST ON PETITIONER'S INTENTIONAL
REFUSAL TO PRODUCE THESE FOUR DOCUMENTS.  THE ONLY COMPETENT EVIDENCE
IN THE RECORD WHICH EVEN TENDS TO SUPPORT AN INFERENCE THAT PETITIONER
KNEW THE LOCATION OF ANY OF THESE FOUR DOCUMENTS OR THAT THEY WERE
ACCESSIBLE TO HIM WAS HIS COMMENT THAT HE HAD "PREVIOUSLY" EXAMINED TWO
OF THEM.  (FN4) BUT BY ITSELF THIS SOLITARY AMBIGUOUS FRAGMENT IS
CLEARLY INSUFFICIENT TO JUSTIFY FINDING BEYOND A REASONABLE DOUBT THAT
THE RECORDS WERE AVAILABLE TO PETITIONER AT THE TIME WHEN HE WAS
SUPPOSED TO COMPLY WITH THE SECOND SUBPOENA.  SINCE THE PROSECUTION
OFFERED NO ADMISSIBLE EVIDENCE AT THE TRIAL, THIS OBSCURE REMARK
CONSTITUTES THE SOLE CASE ON THIS POINT AGAINST PETITIONER.  IT IS THE
ONLY SHRED OF ADMISSIBLE EVIDENCE THAT THE MAJORITY HAS BEEN ABLE TO
GLEAN FROM THE RECORD.  ON THE OTHER HAND, PETITIONER TESTIFIED THAT AS
FAR AS HE KNEW MOST OF THE COMPANY'S RECORDS WERE STORED IN THE
BASEMENT OF ITS OFFICE AND THAT HE HAD MADE A DILIGENT SEARCH THROUGH
THESE RECORDS IN AN EFFORT TO PRODUCE THE MATERIAL DEMANDED BY THE
SUBPOENA.  AND HE WAS NOT THE CUSTODIAN OF THE COMPANY'S RECORDS, BUT
ONLY A NOMINAL OFFICER. 

SIMILARLY THERE WAS ALMOST NOTHING BEFORE THE TRIAL COURT WHICH EVEN
SUGGESTED THAT PETITIONER INTENTIONALLY REFUSED TO PRODUCE THE RECORDS
DEMANDED.  HE STATED UNDER OATH THAT HE WAS NOT TRAINED IN ACCOUNTING
AND WAS NOT FAMILIAR WITH THE COMPANY'S ACCOUNTING RECORDS.  HE
REPEATEDLY TESTIFIED THAT HE HAD ATTEMPTED IN GOOD FAITH TO COMPLY WITH
THE SUBPOENA.  THE GOVERNMENT CONTENDS THAT A PRIMA FACIE CASE OF
INTENTIONAL REFUSAL CAN BE MADE OUT CIRCUMSTANTIALLY FROM SUCH EVIDENCE
AS IS CONTAINED IN THE RECORD.  BUT SINCE THE COMPETENT EVIDENCE DOES
NOT EVEN SUPPORT AN INFERENCE THAT PETITIONER KNEW THE LOCATION OF THE
FOUR CRUCIAL DOCUMENTS OR THAT THEY WERE ACCESSIBLE TO HIM, IT IS HARD
TO SEE HOW AN INTENTIONAL REFUSAL TO OBEY CAN BE IMPLIED AT ALL, LET
ALONE BEYOND A REASONABLE DOUBT. 

THE TRIAL JUDGE COMPOUNDED HIS ERROR IN CONVICTING PETITIONER ON SUCH
A STRIKING INSUFFICIENCY OF COMPETENT EVIDENCE BY RELYING ON
INADMISSIBLE HEARSAY STATEMENTS WHICH WERE NOT SUBJECT TO CROSS
EXAMINATION.  THE GOVERNMENT INTRODUCED IN EVIDENCE, OVER OBJECTION, A
TRANSCRIPT OF AN FBI AGENT'S TESTIMONY AT A PRIOR TRIAL IN WHICH
PETITIONER WAS NOT A PARTY.  THE AGENT HAD TESTIFIED THAT HE FOUND
CERTAIN RECORDS AND DOCUMENTS IN THE COMPANY'S OFFICES.  APPARENTLY
SOME OF THESE WERE PAPERS THAT THE SECOND SUBPOENA HAD ORDERED THE
MAYFLOWER COMPANY TO PRODUCE.  THE FBI AGENT'S TESTIMONY TOGETHER WITH
CERTAIN STATEMENTS BY PETITIONER DID FURNISH SOME EVIDENCE THAT THESE
PAPERS WERE AVAILABLE TO PETITIONER, BUT, AS THE GOVERNMENT CONFESSES,
THIS TESTIMONY WAS PLAINLY INADMISSIBLE.  (FN5)  NEVERTHELESS THE
RECORD INDICATES THAT THE TRIAL JUDGE RELIED ON IT IN FINDING
PETITIONER GUILTY.  AS A MATTER OF FACT HE WENT SO FAR AS TO SAY  "
...  THAT IN THIS PROCEEDING THERE OUGHT TO BE INCLUDED ANY PERTINENT
PART OF THE RECORD OR THE FILES IN THE PRECEDING CASE BECAUSE THIS
CONTEMPT PROCEEDING AROSE OUT OF THE PETITIONER'S ACTIONS IN REFUSING
TO COMPLY WITH A SUBPOENA ISSUED IN THE PRIOR CASE." 

THE JUDGE'S POSITION WAS MANIFESTLY WRONG.  A TRIAL FOR CRIMINAL
CONTEMPT IS A PROCEEDING WHOLLY SEPARATE FROM ANY PRIOR TRIAL OUT OF
WHICH THE ALLEGED CONTEMPT AROSE.  (FN6)  A CONVICTION FOR CONTEMPT IN
A RULE 42(B) PROCEEDING MUST STAND ON THE EVIDENCE PROPERLY INTRODUCED
IN THAT PROCEEDING.  WHERE A TRIAL JUDGE BASES HIS DECISION IN PART ON
EVIDENCE WHICH ALTHOUGH MATERIAL IS INADMISSIBLE THE CONVICTION CANNOT
STAND EVEN THOUGH AN APPELLATE COURT MIGHT CONCLUDE AFTER EXPUNGING THE
BAD EVIDENCE THAT ENOUGH GOOD REMAINED TO SUPPORT THE CONVICTION.  THE
DEFENDANT IS ENTITLED TO A DECISION BY THE TRIAL JUDGE BASED ON THAT
JUDGE'S EVALUATION OF THE PROPER EVIDENCE.  IT IS NO ANSWER TO SAY THAT
TRIAL JUDGE COULD HAVE FOUND THE DEFENDANT GUILTY SOLELY ON THE GOOD
EVIDENCE.  HE DID NOT AND THE DEFENDANT IS ENTITLED TO A RETRIAL.  THE
DANGER OF PREJUDICE FROM INADMISSIBLE HEARSAY WAS PARTICULARLY GRAVE IN
THIS CASE SINCE THE ADMISSIBLE EVIDENCE BEFORE THE TRIAL COURT WAS SO
GROSSLY INADEQUATE.  (FN7) 

THE ERRONEOUS ADMISSION OF PORTIONS OF THE RECORD FROM THE EARLIER
TRIAL ACCENTUATED ANOTHER IMPROPRIETY IN THE PROCEEDINGS BELOW.  I
BELIEVE THAT IT IS WRONG IN A RULE 42(B) PROCEEDING FOR THE SAME JUDGE
WHO ISSUED THE ORDERS ALLEGEDLY DISOBEYED AND WHO PREFERRED THE CHARGES
OF CONTEMPT ON HIS OWN INITIATIVE AND BASED ON HIS OWN KNOWLEDGE TO SIT
IN JUDGMENT ON THE ACCUSED.  IN ESSENCE, THIS ALLOWS A MAN WHO ALREADY
BELIEVES THAT ANOTHER PERSON HAS DISOBEYED HIS COMMAND TO ACT AS BOTH
PROSECUTOR AND JUDGE IN A PROCEEDING TO "DECIDE" FORMALLY WHETHER THAT
PERSON DISOBEYED HIM AND SHOULD BE PUNISHED.  IT IS CONTRARY TO
ELEMENTAL PRINCIPLES OF JUSTICE TO PLACE SUCH POWER IN THE HANDS OF ANY
MAN.  (FN8)  AT THE VERY LEAST ANOTHER JUDGE SHOULD BE CALLED UPON TO
TRY THE CONTEMPT CHARGES.  HERE, BESIDES ISSUING THE ORDERS ALLEGEDLY
DISOBEYED AND THEN CITING PETITIONER FOR CONTEMPT, THE TRIAL JUDGE WAS
INTIMATELY INVOLVED IN EARLIER PROCEEDINGS FROM WHICH THE CONTEMPT
CHARGE DEVELOPED AND IN WHICH EVIDENCE RELEVANT TO THAT CHARGE WAS
PRESENTED.  UNDER SUCH CIRCUMSTANCES HE WOULD HAVE BEEN SUPERHUMAN NOT
TO HAVE HELD PRECONCEIVED VIEWS AS TO PETITIONER'S GUILT.    THE RECORD
DISCLOSES SEVERAL INCIDENTS WHICH SPECIFICALLY INDICATE THAT PETITIONER
WAS NOT ACCORDED A FAIR TRIAL.  AT THE OUTSET, THE JUDGE INFORMED THE
PETITIONER THAT THE BURDEN WAS ON HIM TO PROCEED.  THIS IS COMPLETELY
INCONSISTENT WITH THE PRESUMPTION OF INNOCENCE WHICH EXISTS IN FAVOR OF
A PERSON CHARGED WITH CRIMINAL CONTEMPT.  RATHER, THE PROSECUTOR
CARRIES THE BURDEN OF ESTABLISHING BEYOND A REASONABLE DOUBT THAT THE
ALLEGED CONTEMNOR COMMITTED THE OFFENSE CHARGED.  (FN9)  THE ALMOST
TOTAL ABSENCE OF ANY ATTEMPT BY THE GOVERNMENT TO INTRODUCE EVIDENCE AT
PETITIONER'S TRIAL IN SUPPORT OF THE ACCUSATIONS OF CONTEMPT INDICATES
THAT IT RELIED ON THE TRIAL JUDGE'S PERSONAL KNOWLEDGE OF THE CASE. 
AND AS THE MAJORITY POINTS OUT SEVERAL TIMES THE TRIAL JUDGE REPEATEDLY
INDICATED PRIOR TO THE TRIAL THAT HE BELIEVED THAT PETITIONER WAS
GUILTY OF FALSE AND EVASIVE TESTIMONY - THE OFFENSE CHARGED IN THE
FIRST SPECIFICATION OF CONTEMPT.  THERE IS NOTHING WHICH SUGGESTS THAT
HE DID NOT HAVE SIMILAR PRECONCEIVED VIEWS ON THE OTHER TWO
SPECIFICATIONS.  (FN10)  SURELY EVERY DEFENDANT IS ENTITLED TO AN
IMPARTIAL TRIAL BY ONE WHO HAS NOT PREJUDGED HIS CASE BUT INSTEAD
DECIDES ONLY ON THE EVIDENCE INTRODUCED AT THE TRIAL.  APPLICATION OF
THIS SIMPLE PRINCIPLE IS JUST AS NECESSARY IN CONTEMPT CASES AS IN
OTHERS. 

UNDER RULE 42(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE WHEN THE
ALLEGED CONTEMPT INVOLVES "DISRESPECT TO OR CRITICISM OF A JUDGE" THAT
JUDGE SHALL BE DISQUALIFIED.  RULE 42(B) CONTAINS NO PROVISION WITH
RESPECT TO DISQUALIFICATION IN OTHER CIRCUMSTANCES.  THE MAJORITY
RELIES ON THIS SILENCE TO REJECT PETITIONER'S CONTENTION THAT THE TRIAL
JUDGE HERE SHOULD HAVE STEPPED ASIDE.  BUT AT MOST RULE 42(B) ONLY
PERMITS A NEGATIVE INFERENCE THAT A JUDGE WHO PREFERS CONTEMPT CHARGES
FOR VIOLATIONS OF HIS ORDERS AND WHO IS INTIMATELY INVOLVED IN RELATED
PROCEEDINGS BEARING ON THESE CHARGES CAN SIT IN JUDGMENT ON THE ALLEGED
CONTEMPT.  IN ANY EVENT, RULE 42(B) IS A RULE PROMULGATED BY THIS COURT
AND WHERE IT IS NOT EXPLICIT WE SHOULD NOT INTERPRET IT IN A MANNER TO
DENY A FAIR TRIAL BEFORE AN IMPARTIAL ARBITER.  EVEN IF THE MAJORITY
WERE CORRECT IN SAYING THAT AN "ABUSE OF DISCRETION" MUST BE SHOWN
BEFORE THIS COURT WILL COMPEL A JUDGE TO DISQUALIFY HIMSELF, THE RECORD
IN THIS CASE CLEARLY SHOWS THAT IT WAS AN "ABUSE OF DISCRETION" FOR THE
TRIAL JUDGE NOT TO STEP ASIDE. 

IF THE PRECEDING ERRORS AND IMPROPRIETIES ARE NOT FLAGRANT ENOUGH,
THE COURT OF APPEALS CONTRIBUTED ADDITIONAL ERROR BY RELYING ON A SO
CALLED "SUPPLEMENTAL RECORD" TO AFFIRM THE CONVICTION.  THIS
"SUPPLEMENTAL RECORD" INCLUDED MATERIAL WHICH WAS NOT INTRODUCED AT THE
TRIAL AND WHICH WAS NOT EVEN MADE A PART OF THE RECORD ON APPEAL BY THE
TRIAL JUDGE.  THE GOVERNMENT NOW CONCEDES THAT IT WAS IMPROPER FOR THE
APPELLATE COURT TO RELY ON THIS MATERIAL.  BUT AS ITS FIRST OPINION
SHOWS, THE COURT OF APPEALS REFERRED TO THE "SUPPLEMENTAL RECORD" TO
SUPPORT ITS CONCLUSION THAT THERE WAS SUFFICIENT EVIDENCE FOR THE TRIAL
JUDGE TO FIND THAT THE PAPERS CALLED FOR WERE AVAILABLE TO PETITIONER,
THAT HE FAILED TO PRODUCE THEM AND THAT THIS FAILURE WAS IN BAD FAITH. 
AND ON REHEARING THE COURT OF APPEALS ADDED STILL FURTHER ERROR.  AFTER
CONCEDING THAT THERE WERE GRAVE DOUBTS ABOUT THE ADMISSIBILITY OF THE
FBI AGENT'S UNCROSS-EXAMINED HEARSAY STATEMENTS, IT NEVERTHELESS STATED
THAT THE CONVICTION WAS NOT REVERSIBLE BECAUSE THE CONTEMPT COULD HAVE
BEEN PROSECUTED UNDER THE SUMMARY PROCEDURES OF RULE 42(A).  BUT AS THE
GOVERNMENT POINTS OUT, PETITIONER COULD NOT CONCEIVABLY HAVE BEEN
CONVICTED UNDER THAT RULE. 

AND THERE ARE EVEN MORE MATTERS TAINTING THE PROCEEDINGS BELOW.  FOR
EXAMPLE, PETITIONER WAS RUSHED TO TRIAL WITH AN UNDULY SHORT PERIOD TO
PREPARE HIS DEFENSE TO THE CONTEMPT CHARGE.  HE WAS INFORMED OF THE
SPECIFICATIONS OF CONTEMPT ON A FRIDAY AND TOLD TO APPEAR THE NEXT
TUESDAY FOR TRIAL.  SINCE THE SUBPOENAS WERE EXTREMELY BROAD AND VAGUE
AND THE SPECIFICATIONS INVOLVED A LARGE NUMBER OF DOCUMENTS PETITIONER
FACED A FORMIDABLE TASK IN PREPARING A DEFENSE.  HE HAD FOUR DAYS, OVER
A WEEKEND, TO SECURE A LAWYER AND FAMILIARIZE HIM WITH THE CASE, TO
EXAMINE A GREAT VOLUME OF RECORDS, TO TALK WITH THOSE HAVING RELEVANT
KNOWLEDGE ABOUT THESE RECORDS AND TO SECURE WITNESSES.  AND WHEN AT THE
TRIAL HIS LAWYER REQUESTED A REASONABLE CONTINUANCE, THE JUDGE GAVE
ONLY A FEW HOURS RESPITE. 

THIS COURT SHOULD NOT SANCTION A CONVICTION WHERE THE WHOLE
PROCEEDINGS BELOW WERE RIDDLED WITH SO MANY BASIC ERRORS OF SERIOUS
MAGNITUDE.  SENDING THE CASE BACK FOR A NEW SENTENCE, EVEN IF IT TURNS
OUT TO BE A SMALLER ONE, SEEMS TO ME TO FALL FAR SHORT OF ACCORDING
THIS PETITIONER THE KIND OF JUSTICE EVERY DEFENDANT HAS A RIGHT TO
EXPECT FROM OUR COURTS.  WHILE SOMEHOW THERE IS AN IDEA THAT PROCEDURAL
SAFEGUARDS REQUIRED IN OTHER CRIMINAL TRIALS ARE NOT AVAILABLE IN
TRIALS FOR CRIMINAL CONTEMPT, DUE PROCESS CERTAINLY REQUIRES THAT ONE
CHARGED WITH SUCH CONTEMPT BE GIVEN A FAIR TRIAL BEFORE AN IMPARTIAL
JUDGE.  HERE PETITIONER IS TO BE DEPRIVED OF HIS LIBERTY AND PERHAPS
HIS PROFESSIONAL CAREER WITHOUT HAVING RECIEVED THAT ESSENTIAL
PREREQUISITE TO JUSTICE. 

FN1  227 F.2D 74. 

FN2  IN RE MICHAEL, 326 U.S. 224. 

FN3  E.G., MICHAELSON V. UNITED STATES EX REL. CHICAGO, ST.
P.,M.&O.R. CO., 266 U.S. 42, 66 ("IN CRIMINAL CONTEMPTS, AS IN CRIMINAL
CASES, THE PRESUMPTION OF INNOCENCE OBTAINS.  PROOF OF GUILT MUST BE
BEYOND REASONABLE DOUBT  ...  ."); GOMPERS V. BUCKS STOVE & RANGE CO.,
221 U.S. 418, 444 ("WITHOUT DECIDING WHAT MAY BE THE RULE IN CIVIL
CONTEMPT, IT IS CERTAIN THAT IN PROCEEDINGS FOR CRIMINAL CONTEMPT THE
DEFENDANT IS PRESUMED TO BE INNOCENT, HE MUST BE PROVED TO BE GUILTY
BEYOND A REASONABLE DOUBT  ...  ."). 

SEE ALSO UNITED STATES EX REL. PORTER V. KROGER GROCERY & BAKING CO.,
163 F.2D 168, 172.  ("WE HAVE EXAMINED THE AUTHORITIES WITH A VIEW OF
ASCERTAINING THE ESSENTIAL ELEMENTS NECESSARY TO BE ALLEGED AND PROVEN
IN ORDER TO JUSTIFY A CONVICTION FOR CRIMINAL CONTEMPT.  IT IS PLAIN
THAT A DEFENDANT IS ENTITLED TO ALL THE PROTECTION AFFORDED A DEFENDANT
IN AN ORDINARY CRIMINAL CASE AND THAT THE BURDEN IS UPON THE GOVERNMENT
TO ESTABLISH HIS GUILT BEYOND A REASONABLE DOUBT.") 

FN4  THE TRANSCRIPT OF THE RECORD GIVES THE FOLLOWING COLLOQUY: 

"Q.  (BY PETITIONER'S COUNSEL) HAVE YOU EXAMINED RESPONDENT'S EXHIBIT
3?  (EXHIBIT 3 WAS ONE OF THE FOUR DOCUMENTS INTRODUCED IN EVIDENCE.) 

"A.  (BY PETITIONER) YES, SIR, I HAVE EXAMINED THIS RECORD, AS WELL
AS THE OTHERS, AND FROM MY EXAMINATION - NO, LET ME SAY, I EXAMINED
THOSE OTHER TWO RECORDS PREVIOUSLY AND WAS UNABLE TO FIND ANY EVIDENCE
OF SLOT MACHINES:" 

PETITIONER'S ANSWER IS AMBIGUOUS.  IT DOES NOT INDICATE WHERE OR WHEN
THE PRIOR EXAMINATION TOOK PLACE OR UNDER WHAT CONDITIONS. 

FN5  SEE IN RE OLIVER, 333 U.S. 257, 273. 

FN6  GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 444-446, 451;
HAYES V. FISCHER, 102 U.S. 121; NEW ORLEANS V. THE STEAMSHIP CO., 20
WALL.  387; EX PARTE KEARNEY, 7 WHEAT.  38. 

FN7  IN ITS FOOTNOTE 6 THE MAJORITY STATES THAT THE FOUR DOCUMENTS
INTRODUCED IN EVIDENCE SPEAK FOR THEMSELVES.  IT IS NOT CLEAR WHAT THE
MAJORITY MEANS BY THIS STATEMENT.  THE MERE FACT THAT THEY WERE BEFORE
THE TRIAL COURT DOES NOT TEND TO SHOW THAT THEIR LOCATION WAS KNOWN TO
PETITIONER OR THAT THEY WERE AVAILABLE TO HIM.  AT MOST IT ONLY SHOWS
THAT THEY WERE IN EXISTENCE AT THE TRIAL AND PERMITS AN INFERENCE THAT
THEY EXISTED SOMEWHERE PREVIOUSLY. 

FN8  IN IN RE MURCHISON, 349 U.S. 133, THIS COURT HELD THAT IT
VIOLATED DUE PROCESS FOR A JUDGE TO TRY CONTEMPT CHARGES WHICH HE HAD
PREFERRED WHILE ACTING AS A SO-CALLED ONE-MAN GRAND JURY.  THE COURT,
AT PP. 136-137, DECLARED: 

"A FAIR TRIAL IN A FAIR TRIBUNAL IS A BASIC REQUIREMENT OF DUE
PROCESS.  FAIRNESS OF COURSE REQUIRES AN ABSENCE OF ACTUAL BIAS IN THE
TRIAL OF CASES.  BUT OUR SYSTEM OF LAW HAS ALWAYS ENDEAVORED TO PREVENT
EVEN THE PROBABILITY OF UNFAIRNESS.  TO THIS END NO MAN CAN BE A JUDGE
IN HIS OWN CASE AND NO MAN IS PERMITTED TO TRY CASES WHERE HE HAS AN
INTEREST IN THE OUTCOME  ...  .  FAIR TRIALS ARE TOO IMPORTANT A PART
OF OUR FREE SOCIETY TO LET PROSECUTING JUDGES BE TRIAL JUDGES OF THE
CHARGES THEY PREFER." 

IN THE PRESENT CASE WE ARE NOT COMPELLED TO REACH THE QUESTION OF DUE
PROCESS SINCE THIS COURT POSSESSES GENERAL SUPERVISORY POWER OVER THE
CRIMINAL PROCEDURES IN LOWER FEDERAL COURTS. 

FN9  SEE FOOTNOTE 3, SUPRA. 

FN10  A FURTHER INDICATION OF THE TRIAL JUDGE'S ATTITUDE TOWARD
PETITIONER IS FOUND IN THE "SUPPLEMENTAL RECORD" PREPARED BY THE
GOVERNMENT FOR THE COURT OF APPEALS.  THE JUDGE IS REPORTED AS STATING
AT THE CONCLUSION OF THE CONTEMPT TRIAL THAT HAD PETITIONER "BEEN A
DEFENDANT IN THE TRIAL OF HIS TWO ALLEGED COCONSPIRATORS AS IT WAS
TRIED THE SECOND TIME, I DON'T THINK HE WOULD HAVE BEEN SO FORTUNATE." 
THE JUDGE THEN IMPOSED A HARSH SENTENCE ON PETITIONER. 
..END :






















UNITED STATES V. TURLEY 352 U.S. 407 


NO. 289.  ARGUED JANUARY 24, 1957 - DECIDED FEBRUARY 25, 1957 - 141 F.
SUPP. 527, REVERSED AND REMANDED. 


IN THE NATIONAL MOTOR VEHICLE THEFT ACT, 18 U.S.C. SEC. 2312, WHICH
MAKES IT A FEDERAL CRIME TO TRANSPORT IN INTERSTATE OR FOREIGN COMMERCE
A MOTOR VEHICLE "KNOWING THE SAME TO HAVE BEEN STOLEN," THE WORD
"STOLEN" IS NOT LIMITED TO TAKINGS WHICH AMOUNT TO COMMON-LAW LARCENY,
BUT IT INCLUDES ALL TAKINGS OF MOTOR VEHICLES WITH A CRIMINAL INTENT TO
DEPRIVE THE OWNER OF THE RIGHTS AND BENEFITS OF OWNERSHIP.  PP. 408
417. 

(A)  IN THE ABSENCE OF A PLAIN INDICATION OF AN INTENT TO INCORPORATE
DIVERSE STATE LAWS INTO A FEDERAL CRIMINAL STATUTE, THE MEANING OF THE
FEDERAL STATUTE SHOULD NOT BE DEPENDENT ON STATE LAW.  P. 411. 

(B)  WHERE A FEDERAL CRIMINAL STATUTE USES A COMMON-LAW TERM OF
ESTABLISHED MEANING WITHOUT OTHERWISE DEFINING IT, THE GENERAL PRACTICE
IS TO GIVE THAT TERM ITS COMMON-LAW MEANING.  PP. 411-412. 

(C)  IN THESE CIRCUMSTANCES, THE WORD "STOLEN" SHOULD BE GIVEN A
MEANING CONSISTENT WITH THE CONTEXT IN WHICH IT APPEARS AND THE PURPOSE
OF THE LEGISLATION.  PP. 412-413. 

(D)  IN THE LIGHT OF THE PURPOSE OF THE ACT AND ITS LEGISLATIVE
HISTORY, THE WORD "STOLEN" SHOULD NOT BE INTERPRETED SO AS TO LIMIT IT
TO SITUATIONS WHICH AT COMMON LAW WOULD BE CONSIDERED LARCENY, BUT
SHOULD BE INTERPRETED TO INCLUDE ALL TAKINGS WITH A CRIMINAL INTENT TO
DEPRIVE THE OWNER OF THE RIGHTS AND BENEFITS OF OWNERSHIP.  PP. 413
417. 

(E)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT AFTER 1948
THE DEPARTMENT OF JUSTICE PROPOSED VARIOUS CLARIFYING AMENDMENTS TO THE
ACT AND SEVERAL OF THESE AMENDMENTS HAVE PASSED ONE HOUSE OF CONGRESS
WITHOUT COMING TO A VOTE IN THE OTHER.  P. 415, N. 14. 

UNITED STATES V. TURLEY. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE MEANING OF THE WORD "STOLEN" IN THE FOLLOWING
PROVISION OF THE NATIONAL MOTOR VEHICLE THEFT ACT, COMMONLY KNOWN AS
THE DYER ACT: 

"WHOEVER TRANSPORTS IN INTERSTATE OR FOREIGN COMMERCE A MOTOR VEHICLE
OR AIRCRAFT, KNOWING THE SAME TO HAVE BEEN STOLEN, SHALL BE FINED NOT
MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH." 
(FN1) 

THE ISSUE BEFORE US IS WHETHER THE MEANING OF THE WORD "STOLEN," AS
USED IN THIS PROVISION, IS LIMITED TO A TAKING WHICH AMOUNTS TO COMMON
LAW LARCENY, OR WHETHER IT INCLUDES AN EMBEZZLEMENT OR OTHER FELONIOUS
TAKING WITH INTENT TO DEPRIVE THE OWNER OF THE RIGHTS AND BENEFITS OF
OWNERSHIP.  FOR THE REASONS HEREAFTER STATED, WE ACCEPT THE BROADER
INTERPRETATION. 

IN 1956, AN INFORMATION BASED ON THIS SECTION WAS FILED AGAINST JAMES
VERNON TURLEY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND.  IT CHARGED THAT TURLEY, IN SOUTH CAROLINA, LAWFULLY OBTAINED
POSSESSION OF AN AUTOMOBILE FROM ITS OWNER FOR THE PURPOSE OF DRIVING
CERTAIN OF THEIR FRIENDS TO THE HOMES OF THE LATTER IN SOUTH CAROLINA,
BUT THAT, WITHOUT PERMISSION OF THE OWNER AND WITH INTENT TO STEAL THE
AUTOMOBILE, TURLEY CONVERTED IT TO HIS OWN USE AND UNLAWFULLY
TRANSPORTED IT IN INTERSTATE COMMERCE TO BALTIMORE, MARYLAND, WHERE HE
SOLD IT WITHOUT PERMISSION OF THE OWNER.  (FN2)  THE INFORMATION THUS
CHARGED TURLEY WITH TRANSPORTING THE AUTOMOBILE IN INTERSTATE COMMERCE
KNOWING IT TO HAVE BEEN OBTAINED BY EMBEZZLEMENT RATHER THAN BY COMMON
LAW LARCENY. 

COUNSEL APPOINTED FOR TURLEY MOVED TO DISMISS THE INFORMATION ON THE
GROUND THAT IT DID NOT STATE FACTS SUFFICIENT TO CONSTITUTE AN OFFENSE
AGAINST THE UNITED STATES.  HE CONTENDED THAT THE WORD "STOLEN" AS USED
IN THE ACT REFERRED ONLY TO TAKINGS WHICH CONSTITUTE COMMON-LAW LARCENY
AND THAT THE ACTS CHARGED DID NOT.  THE DISTRICT COURT AGREED AND
DISMISSED THE INFORMATION.  141 F. SUPP. 527.  THE UNITED STATES
CONCEDES THAT THE FACTS ALLEGED IN THE INFORMATION DO NOT CONSTITUTE
COMMON-LAW LARCENY, BUT DISPUTES THE HOLDING THAT A MOTOR VEHICLE
OBTAINED BY EMBEZZLEMENT IS NOT "STOLEN" WITHIN THE MEANING OF THE
ACT.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT UNDER 18 U.S.C.
SEC. 3731 BECAUSE THE DISMISSAL WAS BASED UPON CONSTRUCTION OF THE
STATUTE UPON WHICH THE INFORMATION WAS FOUNDED.  WE NOTED PROBABLE
JURISDICTION.  352 U.S. 816. 

DECISIONS INVOLVING THE MEANING OF "STOLEN" AS USED IN THE NATIONAL
MOTOR VEHICLE THEFT ACT DID NOT ARISE FREQUENTLY UNTIL COMPARATIVELY
RECENTLY.  TWO OF THE EARLIER CASES INTERPRETED "STOLEN" AS MEANING
STATUTORY LARCENY AS DEFINED BY THE STATE IN WHICH THE TAKING
OCCURRED.  (FN3)  THE LATER DECISIONS REJECTED THAT INTERPRETATION BUT
DIVIDED ON WHETHER TO GIVE "STOLEN" A UNIFORMLY NARROW MEANING
RESTRICTED TO COMMON-LAW LARCENY, OR A UNIFORMLY BROADER MEANING
INCLUSIVE OF EMBEZZLEMENT AND OTHER FELONIOUS TAKINGS WITH INTENT TO
DEPRIVE THE OWNER OF THE RIGHTS AND BENEFITS OF OWNERSHIP.  (FN4) THE
FIFTH, EIGHTH AND TENTH CIRCUITS FAVORED THE NARROW DEFINITION, (FN5)
WHILE THE FOURTH, SIXTH AND NINTH CIRCUITS FAVORED THE BROADER ONE. 
(FN6)  WE AGREE THAT IN THE ABSENCE OF A PLAIN INDICATION OF AN INTENT
TO INCORPORATE DIVERSE STATE LAWS INTO A FEDERAL CRIMINAL STATUTE, THE
MEANING OF THE FEDERAL STATUTE SHOULD NOT BE DEPENDENT ON STATE LAW. 
SEE JEROME V. UNITED STATES, 318 U.S. 101, 104 (1943); UNITED STATES V.
HANDLER, 142 F.2D 351, 354 (C.A.2D CIR. 1944). 

WE RECOGNIZE THAT WHERE A FEDERAL CRIMINAL STATUTE USES A COMMON-LAW
TERM OF ESTABLISHED MEANING WITHOUT OTHERWISE DEFINING IT, THE GENERAL
PRACTICE IS TO GIVE THAT TERM ITS COMMON-LAW MEANING.  (FN7)  BUT
"STOLEN" (OR "STEALING") HAS NO ACCEPTED COMMON-LAW MEANING.  ON THIS
POINT THE COURT OF APPEALS FOR THE FOURTH CIRCUIT RECENTLY SAID: 

"BUT WHILE 'STOLEN' IS CONSTANTLY IDENTIFIED WITH LARCENY, THE TERM
WAS NEVER AT COMMON LAW EQUATED OR EXCLUSIVELY DEDICATED TO LARCENY. 
'STEAL' (ORGINALLY 'STALE') AT FIRST DENOTED IN GENERAL USAGE A TAKING
THROUGH SECRECY, AS IMPLIED IN 'STEALTH,' OR THROUGH STRATAGEM,
ACCORDING TO THE OXFORD ENGLISH DICTIONARY.  EXPANDED THROUGH THE
YEARS, IT BECAME THE GENERIC DESIGNATION FOR DISHONEST ACQUISITION, BUT
IT NEVER LOST ITS INITIAL CONNOTATION.  NOR IN LAW IS 'STEAL' OR
'STOLEN' A WORD OF ART. BLACKSTONE DOES NOT MENTION 'STEAL' IN DEFINING
LARCENY - 'THE FELONIOUS TAKING AND CARRYING AWAY OF THE PERSONAL GOODS
OF ANOTHER' - OR IN EXPOUNDING ITS SEVERAL ELEMENTS.  IV COMMENTARIES
229 ET SEQ."  BOONE V. UNITED STATES, 235 F.2D 939, 940 (C.A. 4TH CIR.
1956). 

WEBSTER'S NEW INTERNATIONAL DICTIONARY (2D ED., 1953) LIKEWISE
DEFINES "STOLEN" AS "OBTAINED OR ACCOMPLISHED BY THEFT, STEALTH, OR
CRAFT  ...  ."  BLACK'S LAW DICTIONARY (4TH ED., 1951) STATES THAT
"STEAL" "MAY DENOTE THE CRIMINAL TAKING OF PERSONAL PROPERTY EITHER BY
LARCENY, EMBEZZLEMENT, OR FALSE PRETENSES."  (FN8)  FURTHERMORE,
"STOLEN" AND "STEAL" HAVE BEEN USED IN FEDERAL CRIMINAL STATUTES, AND
THE COURTS INTERPRETING THOSE WORDS HAVE DECLARED THAT THEY DO NOT HAVE
A NECESSARY COMMON-LAW MEANING COTERMINOUS WITH LARCENY AND EXCLUSIVE
OF OTHER THEFT CRIMES.  (FN9)  FREED FROM A COMMON-LAW MEANING, WE
SHOULD GIVE "STOLEN" THE MEANING CONSISTENT WITH THE CONTEXT IN WHICH
IT APPEARS. 

"THAT CRIMINAL STATUTES ARE TO BE CONSTRUED STRICTLY IS A PROPOSITION
WHICH CALLS FOR THE CITATION OF NO AUTHORITY.  BUT THIS DOES NOT MEAN
THAT EVERY CRIMINAL STATUTE MUST BE GIVEN THE NARROWEST POSSIBLE
MEANING IN COMPLETE DISREGARD OF THE PURPOSE OF THE LEGISLATURE." 
UNITED STATES V. BRAMBLETT, 348 U.S. 503, 509-510 (1955); SEE ALSO,
UNITED STATES V. SULLIVAN, 332 U.S. 689, 693-694 (1948). 

IT IS, THEREFORE, APPROPRIATE TO CONSIDER THE PURPOSE OF THE ACT AND
TO GAIN WHAT LIGHT WE CAN FROM ITS LEGISLATIVE HISTORY. 

BY 1919, THE LAW OF MOST STATES AGAINST LOCAL THEFT HAD DEVELOPED SO
AS TO INCLUDE NOT ONLY COMMON-LAW LARCENY BUT EMBEZZLEMENT, FALSE
PRETENSES, LARCENY BY TRICK, AND OTHER TYPES OF WRONGFUL TAKING.  THE
ADVENT OF THE AUTOMOBILE, HOWEVER, CREATED A NEW PROBLEM WITH WHICH THE
STATES FOUND IT DIFFICULT TO DEAL.  THE AUTOMOBILE WAS UNIQUELY SUITED
TO FELONIOUS TAKING WHETHER BY LARCENY, EMBEZZLEMENT OR FALSE
PRETENSES.  IT WAS A VALUABLE, SALABLE ARTICLE WHICH ITSELF SUPPLIED
THE MEANS FOR SPEEDY ESCAPE.  "THE AUTOMOBILE BECAME THE PERFECT
CHATTEL FOR MODERN LARGE-SCALE THEFT."  (FN10)  THIS CHALLENGE COULD BE
BEST MET THROUGH USE OF THE FEDERAL GOVERNMENT'S JURISDICTION OVER
INTERSTATE COMMERCE.  THE NEED FOR FEDERAL ACTION INCREASED WITH THE
NUMBER, DISTRIBUTION AND SPEED OF THE MOTOR VEHICLES UNTIL, BY 1919, IT
BECAME A NECESSITY.  (FN11)  THE RESULT WAS THE NATIONAL MOTOR VEHICLE
THEFT ACT. 

THIS BACKGROUND WAS REFLECTED IN THE COMMITTEE REPORT ON THE BILL
PRESENTED BY ITS AUTHOR AND SPONSOR, REPRESENTATIVE DYER.  H.R. REP.
NO. 312, 66TH CONG., 1ST SESS.  THIS REPORT, ENTITLED "THEFT OF
AUTOMOBILES," POINTED TO THE INCREASING NUMBER OF AUTOMOBILE THEFTS,
THE RESULTING FINANCIAL LOSSES, AND THE INCREASING COST OF AUTOMOBILE
THEFT INSURANCE.  IT ASSERTED THAT STATE LAWS WERE INADEQUATE TO COPE
WITH THE PROBLEM BECAUSE THE OFFENDERS EVADED STATE OFFICERS BY
TRANSPORTING THE AUTOMOBILES ACROSS STATE LINES WHERE ASSOCIATES
RECEIVED AND SOLD THEM.  THROUGHOUT THE LEGISLATIVE HISTORY CONGRESS
USED THE WORD "STOLEN" AS SYNONYMOUS WITH "THEFT," A TERM GENERALLY
CONSIDERED TO BE BROADER THAN "COMMON-LAW LARCENY."  (FN12)  TO BE
SURE, THE DISCUSSION REFERRED TO "LARCENY" BUT NOTHING WAS SAID ABOUT
EXCLUDING OTHER FORMS OF "THEFT."  THE REPORT STATED THE OBJECT OF THE
ACT IN BROAD TERMS, PRIMARILY EMPHASIZING THE NEED FOR THE EXERCISE OF
FEDERAL POWERS.  (FN13)  NO MENTION IS MADE OF A PURPOSE TO DISTINGUISH
BETWEEN DIFFERENT FORMS OF THEFT, AS WOULD BE EXPECTED IF THE
DISTINCTION HAD BEEN INTENDED.  (FN14) 

"LARCENY" IS ALSO MENTIONED IN BROOKS V. UNITED STATES, 267 U.S. 432
(1925).  (FN15)  THIS REFERENCE, HOWEVER, CARRIES NO NECESSARY
IMPLICATION EXCLUDING THE TAKING OF AUTOMOBILES BY EMBEZZLEMENT OR
FALSE PRETENSES.  PUBLIC AND PRIVATE RIGHTS ARE VIOLATED TO A
COMPARABLE DEGREE WHATEVER LABEL IS ATTACHED TO THE FELONIOUS TAKING. 
A TYPICAL EXAMPLE OF COMMON-LAW LARCENY IS THE TAKING OF AN UNATTENDED
AUTOMOBILE.  BUT AN AUTOMOBILE IS NO LESS "STOLEN" BECAUSE IT IS
RENTED, TRANSPORTED INTERSTATE, AND SOLD WITHOUT THE PERMISSION OF THE
OWNER (EMBEZZLEMENT).  (FN16)  THE SAME IS TRUE WHERE AN AUTOMOBILE IS
PURCHASED WITH A WORTHLESS CHECK, TRANSPORTED INTERSTATE, AND SOLD
(FALSE PRETENSES).  (FN17)  PROFESSIONAL THIEVES RESORT TO INNUMERABLE
FORMS OF THEFT AND CONGRESS PRESUMABLY SOUGHT TO MEET THE NEED FOR
FEDERAL ACTION EFFECTIVELY RATHER THAN TO LEAVE LOOPHOLES FOR WHOLESALE
EVASION.  (FN18) 

WE CONCLUDE THAT THE ACT REQUIRES AN INTERPRETATION OF "STOLEN" WHICH
DOES NOT LIMIT IT TO SITUATIONS WHICH AT COMMON LAW WOULD BE CONSIDERED
LARCENY.  THE REFINEMENTS OF THAT CRIME ARE NOT RELATED TO THE PRIMARY
CONGRESSIONAL PURPOSE OF ELIMINATING THE INTERSTATE TRAFFIC IN
UNLAWFULLY OBTAINED MOTOR VEHICLES.  THE GOVERNMENT'S INTERPRETATION IS
NEITHER UNCLEAR NOR VAGUE.  "STOLEN" AS USED 18 U.S.C. SEC. 2312
INCLUDES ALL FELONIOUS TAKINGS OF MOTOR VEHICLES WITH INTENT TO DEPRIVE
THE OWNER OF THE RIGHTS AND BENEFITS OF OWNERSHIP, REGARDLESS OF
WHETHER OR NOT THE THEFT CONSTITUTES COMMON-LAW LARCENY.  REVERSED AND
REMANDED. 

FN1  18 U.S.C. SEC. 2312.  THE ORIGINAL ACT, SPONSORED BY
REPRESENTATIVE L.C. DYER OF MISSOURI, BECAME LAW IN 1919.  41 STAT.
324.  IT WAS AMENDED, IN 1945, TO INCLUDE AIRCRAFT, 59 STAT. 536, AND
WAS RE-ENACTED, IN 1948, AS PART OF THE CRIMINAL CODE, 62 STAT. 806. 

FN2  AS AMENDED, THE INFORMATION CHARGED THAT: 

"ON OR ABOUT JANUARY 20, 1956, AT COLUMBIA, SOUTH CAROLINA,

                JAMES VERNON TURLEY DID LAWFULLY OBTAIN A CERTAIN
1955 FORD AUTOMOBILE FROM ITS OWNER, CHARLES T. SHAVER, WITH PERMISSION
OF SAID OWNER TO USE THE AUTOMOBILE BRIEFLY ON THAT DAY TO TRANSPORT
CERTAIN OF THEIR FRIENDS TO THE HOMES OF THE LATTER IN COLUMBIA, SOUTH
CAROLINA, AND TO RETURN WITH THEM, BUT AFTER SO OBTAINING THE
AUTOMOBILE AND TRANSPORTING SAID PERSONS TO THEIR HOMES, AND BEFORE
RETURNING WITH THEM OR DELIVERING BACK THE AUTOMOBILE TO ITS OWNER,
JAMES VERNON TURLEY, WITHOUT PERMISSION OF THE OWNER, AND WITH INTENT
IN SOUTH CAROLINA TO STEAL THE 1955 FORD AUTOMOBILE, DID CONVERT THE
SAME TO HIS OWN USE AND DID UNLAWFULLY TRANSPORT IT IN INTERSTATE
COMMERCE FROM COLUMBIA, SOUTH CAROLINA, TO BALTIMORE IN THE STATE AND
DISTRICT OF MARYLAND, KNOWING IT TO HAVE BEEN STOLEN, WHERE HE DID ON
JANUARY 21, 1956, SELL SAID 1955 FORD AUTOMOBILE WITHOUT PERMISSION OF
THE OWNER." 

FN3  CARPENTER V. UNITED STATES, 113 F.2D 692 (C.A. 8TH CIR. 1940);
ABRAHAM V. UNITED STATES, 15 F.2D 911 (C.A. 8TH CIR. 1926).  THE
ABRAHAM CASE AROSE IN OKLAHOMA, WHERE LARCENY WAS DEFINED BY STATUTE IN
THE NARROW COMMON-LAW SENSE, AND THE CONVICTION WAS REVERSED BECAUSE
THE TAKING DID NOT MEET THAT TEST.  THE CARPENTER CASE AROSE IN
MINNESOTA, WHERE THE STATUTORY DEFINITION OF LARCENY INCLUDED
EMBEZZLEMENT AND OTHER TYPES OF FRAUDULENT TAKING, AND THE CONVICTION
WAS AFFIRMED. 

FN4  IN THIS OPINION FELONIOUS IS USED IN THE SENSE OF HAVING
CRIMINAL INTENT RATHER THAN WITH REFERENCE TO ANY DISTINCTION BETWEEN
FELONIES AND MISDEMEANORS. 

FN5  MURPHY V. UNITED STATES, 206 F.2D 571 (C.A. 5TH CIR. 1953)(FALSE
PRETENSES); ACKERSON V. UNITED STATES, 185 F.2D 485 (C.A. 8TH CIR.
1950)(FALSE PRETENSES); HITE V. UNITED STATES, 168 F.2D 973 (C.A. 10TH
CIR. 1948)(FALSE PRETENSES).  CF. HAND V. UNITED STATES, 227 F.2D 794
(C.A. 10TH CIR. 1955)(LARCENY BY BAILEE); AND STEWART V. UNITED STATES,
151 F.2D 386 (C.A. 8TH CIR. 1945)(LARCENY BY BAILEE).  SEE ALSO, UNITED
STATES V. KRATZ, 97 F. SUPP. 999 (D.C. NEB. 1951)(EMBEZZLEMENT); UNITED
STATES V. O'CARTER, 91 F. SUPP.  544 (D.C.S.D. IOWA 1949)(FALSE
PRETENSES); EX PARTE ATKINSON, 84 F. SUPP. 300 (D.C.E.D.S.C.
1949)(FALSE PRETENSES). 

FN6  BOONE V. UNITED STATES, 235 F.2D 939 (C.A. 4TH CIR. 1956)(FALSE
PRETENSES); SMITH V. UNITED STATES, 233 F.2D 744 (C.A. 9TH CIR.
1956)(EMBEZZLEMENT); BREECE V. UNITED STATES, 218 F.2D 819 (C.A. 6TH
CIR. 1954)(EMBEZZLEMENT); WILSON V. UNITED STATES, 214 F.2D 313 (C.A.
6TH CIR. 1954)(EMBEZZLEMENT); COLLIER V. UNITED STATES, 190 F.2D 473
(C.A. 6TH CIR. 1951)(EMBEZZLEMENT); DAVILMAN V. UNITED STATES, 180 F.2D
284 (C.A. 6TH CIR. 1950)(EMBEZZLEMENT).  AND SEE UNITED STATES V.
SICURELLAN, 187 F.2D 533, 534 (C.A.2D CIR. 1951) WHERE THE COURT SAID
THAT "A NARROW COMMON LAW DEFINITION OF "STOLEN" IS NOT REQUIRED UNDER
THE DYER ACT." 

MOST OF THESE CASES ADOPTED THE DEFINITION OF "STOLEN" GIVEN BY JUDGE
SHACKELFORD MILLER, JR., IN UNITED STATES V. ADCOCK, 49 F. SUPP. 351,
353 (D.C.W.D. KY. 1943)(EMBEZZLEMENT): 

"  ...  THE WORD 'STOLEN' IS USED IN THE STATUTE NOT IN THE TECHNICAL
SENSE OF WHAT CONSTITUTES LARCENY, BUT IN ITS WELL KNOWN AND ACCEPTED
MEANING OF TAKING THE PERSONAL PROPERTY OF ANOTHER FOR ONE'S OWN USE
WITHOUT RIGHT OR LAW, AND THAT SUCH A TAKING CAN EXIST WHENEVER THE
INTENT TO DO SO COMES INTO EXISTENCE AND IS DELIBERATELY CARRIED OUT
REGARDLESS OF HOW THE PARTY SO TAKING THE CAR MAY HAVE ORIGINALLY COME
INTO POSSESSION OF IT."    FN7  UNITED STATES V. CARLL, 105 U.S. 611
(1882); UNITED STATES V. SMITH, 5 WHEAT.  153 (1820); UNITED STATES V.
BRANDENBURG, 144 F.2D 656 (C.A. 3D CIR. 1944). 

FN8  IN DEFINING "THEFT" WEBSTER'S NEW INTERNATIONAL DICTIONARY (2D
ED. 1953) SAYS: "STEALING AND THEFT, ESP.  IN POPULAR USE, ARE BROADER
TERMS THAN LARCENY, AND MAY INCLUDE SWINDLING AS WELL AS
EMBEZZLEMENT."    "THE TERM 'THEFT,' SOMETIMES USED AS A SYNONYM OF
LARCENY, IS IN REALITY A BROADER TERM, APPLYING TO ALL CASES OF
DEPRIVING ANOTHER OF HIS PROPERTY WHETHER BY REMOVING OR WITHHOLDING
IT, AND INCLUDES LARCENY, ROBBERY, CHEATING, EMBEZZLEMENT, BREACH OF
TRUST, ETC."  13 ENCYCLOPAEDIA BRITANNICA, LARCENY (1953), 720.  AND
SEE 2 BOUVIER'S LAW DICTIONARY (3D REV. ED. 1914) 3267. 

FN9  SEE, E.G., UNITED STATES V. O'CONNELL, 165 F.2D 697, 698 (C.A.2D
CIR. 1948) ("STEAL" OR "UNLAWFULLY TAKE BY ANY FRAUDULENT DEVICE,
SCHEME, OR GAME" FROM DINING CAR MOVING IN INTERSTATE COMMERCE); UNITED
STATES V. DE NORMAND, 149 F.2D 622, 624 (C.A.2D CIR. 1945)(INTERSTATE
TRANSPORTATION OF GOODS "STOLEN, FELONIOUSLY CONVERTED, OR TAKEN
FELONIOUSLY BY FRAUD OR WITH INTENT TO STEAL OR PURLOIN"); UNITED
STATES V. HANDLER, 142 F.2D 351, 353 (C.A.2D CIR. 1944)(SAME); CRABB V.
ZERBST, 99 F.2D 562, 565 (C.A. 5TH CIR. 1938) ("EMBEZZLE, STEAL, OR
PURLOIN" PROPERTY OF THE UNITED STATES); UNITED STATES V. TROSPER, 127
F. 476, 477 (D.C.S.D. CAL. 1904)("STEAL" FROM THE MAILS); UNITED STATES
V. JOLLY, 37 F. 108 (D.C.W.D. TENN. 1888)("STEAL" FROM THE MAILS);
UNITED STATES V. STONE, 8 F. 232 (C.C.W.D. TENN. 1881)("PLUNDERS,
STEALS, OR DESTROYS" GOODS BELONGING TO A VESSEL IN DISTRESS). 

FN10  HALL, THEFT, LAW AND SOCIETY (2D ED. 1952), 235, AND SEE 233
240; 58 CONG. REC.  5470-5478. 

FN11  IN 1895, THERE WERE FOUR AUTOMOBILES IN THE UNITED STATES AND,
IN 1910, ABOUT 500,000.  HALL, OP. CIT. 234 ET SEQ. IN 1919, THERE WERE
NEARLY 6,500,000.  H.R. REP.  NO. 312, 66TH CONG., 1ST SESS. 2-3. 
TODAY, THERE ARE OVER 65,000,000 MOTOR VEHICLE REGISTRATIONS.  WORLD
ALMANAC (1957) 699. 

FN12  SEE N. 8, SUPRA. 

FN13  THE REPORT BEGAN AND ENDED AS FOLLOWS: 

"THE CONGRESS OF THE UNITED STATES CAN SCARCELY ENACT ANY LAW AT THIS
SESSION THAT IS MORE NEEDED THAN THE BILL HEREIN RECOMMENDED, AND THAT
HAS FOR ITS PURPOSE THE PROVIDING OF SEVERE PUNISHMENT OF THOSE GUILTY
OF THE STEALING OF AUTOMOBILES IN INTERSTATE OR FOREIGN COMMERCE  ...
.  STATE LAWS UPON THE SUBJECT HAVE BEEN INADEQUATE TO MEET THE EVIL. 
THIEVES STEAL AUTOMOBILES AND TAKE THEM FROM ONE STATE TO ANOTHER AND
OFTTIMES HAVE ASSOCIATES IN THIS CRIME WHO RECEIVE AND SELL THE STOLEN
MACHINES  ...  . 

     *         *         *         *         * 

"THE PURPOSE OF THE PROPOSED LAW IS TO SUPPRESS CRIME IN INTERSTATE
COMMERCE.  AUTOMOBILES ADMITTEDLY ARE TANGIBLE PROPERTY, CAPABLE OF
BEING TRANSMITTED IN INTERSTATE COMMERCE.  THE LARCENY OF AUTOMOBILES
IS MADE A CRIME UNDER THE LAWS OF ALL THE STATES IN THE UNION.  NO GOOD
REASON EXISTS WHY CONGRESS, INVESTED WITH THE POWER TO REGULATE
COMMERCE AMONG THE SEVERAL STATES, SHOULD NOT PROVIDE THAT SUCH
COMMERCE SHOULD NOT BE POLLUTED BY THE CARRYING OF STOLEN PROPERTY FROM
ONE STATE TO ANOTHER.  CONGRESS IS THE ONLY POWER COMPETENT TO
LEGISLATE UPON THIS EVIL, AND THE PURPOSE OF THIS BILL IS TO CRUSH IT,
WITH THE PENALTIES ATTACHED."  ID., AT 1, 4.  SEE ALSO, 58 CONG. REC.
5470-5478, 6433-6435. 

FN14  IN 1948, FOLLOWING THE DECISION IN HITE V. UNITED STATES, 168
F.2D 973 (C.A. 10TH CIR.), HOLDING THAT THE WORD "STOLEN" WAS
RESTRICTED TO COMMON-LAW LARCENY, THE DEPARTMENT OF JUSTICE PROPOSED
VARIOUS CLARIFYING AMENDMENTS TO 18 U.S.C. SEC. 2312.  THESE AMENDMENTS
SOUGHT TO CLARIFY THE APPLICATION OF THE ACT BY ADDING THE WORDS
"EMBEZZLED, FELONIOUSLY CONVERTED, OR TAKEN FELONIOUSLY BY FRAUD," OR
SIMILAR LANGUAGE.  SUCH AN AMENDMENT WAS ADOPTED BY ONE HOUSE OF
CONGRESS IN EACH OF THE 81ST, 83D AND 84TH CONGRESSES, BUT IN EACH CASE
IT FAILED TO COME TO A VOTE IN THE OTHER HOUSE.  APPELLEE SEEKS SUPPORT
FOR HIS INTERPRETATION OF "STOLEN" IN THE FAILURE OF CONGRESS TO ENACT
THESE PROPOSALS, BUT WE THINK THIS FAILURE IS ENTITLED TO NO
SIGNIFICANCE.  THE PROPOSED AMENDMENTS ARE SHOWN BY THEIR RESPECTIVE
COMMITTEE REPORTS TO BE CLARIFYING AMENDMENTS.  THEY INCLUDED OTHER
PROPOSED CHANGES AND WERE NEVER VOTED DOWN.  SEE S. 1483, 81ST CONG.,
1ST SESS. (S. REP.  NO. 358); S. 675, 83D CONG., 2D SESS. (S. REP. NO.
2364); AND H.R. 3702, 84TH CONG., 1ST SESS. (H.R. REP. NO. 919). 

FN15  IN THAT CASE CHIEF JUSTICE TAFT, AFTER REFERRING TO THE PURPOSE
OF CONGRESS IN PASSING THE ACT "TO DEVISE SOME METHOD FOR DEFEATING THE
SUCCESS OF THESE WIDELY SPREAD SCHEMES OF LARCENY," DID NOT FURTHER
DISCUSS LARCENY BUT SAID: 

"THE QUICK PASSAGE OF THE MACHINES INTO ANOTHER STATE HELPS TO
CONCEAL THE TRAIL OF THE THIEVES, GETS THE STOLEN PROPERTY INTO ANOTHER
POLICE JURISDICTION AND FACILITATES THE FINDING OF A SAFER PLACE IN
WHICH TO DISPOSE OF THE BOOTY AT A GOOD PRICE.  THIS IS A GROSS MISUSE
OF INTERSTATE COMMERCE.  CONGRESS MAY PROPERLY PUNISH SUCH INTERSTATE
TRANSPORTATION BY ANY ONE WITH KNOWLEDGE OF THE THEFT, BECAUSE OF ITS
HARMFUL RESULT AND ITS DEFEAT OF THE PROPERTY RIGHTS OF THOSE WHOSE
MACHINES AGAINST THEIR WILL ARE TAKEN INTO OTHER JURISDICTIONS."  ID.,
AT 438-439. 

FN16  SEE SMITH V. UNITED STATES, 233 F.2D 744 (C.A. 9TH CIR. 1956);
HAND V. UNITED STATES, 227 F.2D 794 (C.A. 10 CIR. 1955); STEWART V.
UNITED STATES, 151 F.2D 386 (C.A.  8TH CIR. 1945); CLARK AND MARSHALL,
CRIMES (5TH ED. 1952), 428-451, 482-503; ANNOTATION, DISTINCTION
BETWEEN LARCENY AND EMBEZZLEMENT, 146 A.L.R. 532. 

A CAR RENTAL SITUATION WAS INVOLVED IN DAVILMAN V. UNITED STATES, 180
F.2D 284 (C.A.  6TH CIR. 1950).  KINDRED SITUATIONS WERE INVOLVED IN
BREECE V. UNITED STATES, 218 F.2D 819 (C.A. 6TH CIR. 1954); WILSON V.
UNITED STATES, 214 F.2D 313 (C.A. 6TH CIR. 1954); AND COLLIER V. UNITED
STATES, 190 F.2D 473 (C.A. 6TH CIR. 1951).  ANOTHER EMBEZZLEMENT
SITUATION, THE USE OF AN EMPLOYEE TO OBTAIN AUTOMOBILES FELONIOUSLY,
WAS INVOLVED IN UNITED STATES V. BUCUR, 194 F.2D 297 (C.A. 7TH CIR.
1952). 

FN17  SEE BOONE V. UNITED STATES, 235 F.2D 939 (C.A. 4TH CIR. 1956);
MURPHY V. UNITED STATES, 206 F.2D 571 (C.A. 5TH CIR. 1953); ACKERSON V.
UNITED STATES, 185 F.2D 485 (C.A.  8TH CIR. 1950); HITE V. UNITED
STATES, 168 F.2D 973 (C.A. 10TH CIR. 1948).  IN EACH OF THESE CASES THE
DEFENDANT OBTAINED POSSESSION OF A CAR BY PASSING A BAD CHECK, FALSELY
REPRESENTING THAT IT WOULD BE PAID. 

FN18  FOR EXAMPLES OF OTHER AUTOMOBILE THEFT DEVICES, SEE HALL,
THEFT, LAW AND SOCIETY (2D ED. 1952), 252-253.  FOR A HISTORY OF COMMON
LAW LARCENY AND THE DEVELOPMENT OF OTHER THEFT CRIMES, SEE ID., AT 1
109, AND HALL AND GLUECK, CRIMINAL LAW AND ENFORCEMENT (1951), 165
171. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

IF CONGRESS DESIRES TO MAKE CHEATING, IN ALL ITS MYRIAD VARIETIES, A
FEDERAL OFFENSE WHEN EMPLOYED TO OBTAIN AN AUTOMOBILE THAT IS THEN
TAKEN ACROSS A STATE LINE, IT SHOULD EXPRESS ITSELF WITH LESS AMBIGUITY
THAN BY LANGUAGE THAT LEADS THREE COURTS OF APPEALS TO DECIDE THAT IT
HAS NOT SAID SO AND THREE THAT IT HAS.  IF "STEALING" (DESCRIBING A
THING AS "STOLEN") BE NOT A TERM OF ART, IT MUST BE DEEMED A
COLLOQUIAL, EVERYDAY TERM.  AS SUCH, IT WOULD HARDLY BE USED, EVEN
LOOSELY, BY THE MAN IN THE STREET TO COVER "CHEATING."  LEGISLATIVE
DRAFTING IS DEPENDENT ON TREACHEROUS WORDS TO CONVEY, AS OFTEN AS NOT,
COMPLICATED IDEAS, AND COURTS SHOULD NOT BE PEDANTICALLY EXACTING IN
CONSTRUING LEGISLATION.  BUT TO SWEEP INTO THE JURISDICTION OF THE
FEDERAL COURTS THE TRANSPORTATION OF CARS OBTAINED NOT ONLY BY THEFT
BUT ALSO BY TRICKERY DOES NOT PRESENT A PROBLEM SO COMPLICATED THAT THE
COURT SHOULD SEARCH FOR HINTS TO FIND A COMMAND.  WHEN CONGRESS HAS
WANTED TO DEAL WITH MANY DIFFERENT WAYS OF DESPOILING ANOTHER OF HIS
PROPERTY AND NOT MERELY WITH LARCENY, IT HAS FOUND IT EASY ENOUGH TO DO
SO, AS A NUMBER OF FEDERAL ENACTMENTS ATTEST.  SEE, E.G., 18 U.S.C.
SECS. 641, 655, 659, 1707.  NO DOUBT, PENAL LEGISLATION SHOULD NOT BE
ARTIFICIALLY RESTRICTED SO AS TO ALLOW ESCAPE FOR THOSE FOR WHOM IT WAS
WITH FAIR INTENDMENT DESIGNED.  BUT THE PRINCIPLE OF LENITY WHICH
SHOULD GUIDE CONSTRUCTION OF CRIMINAL STATUTES, BELL V. UNITED STATES,
349 U.S. 81, 83-84, PRECLUDES EXTENDING THE TERM "STOLEN" TO INCLUDE
EVERY FORM OF DISHONEST ACQUISITION.  THIS CONCLUSION IS ENCOURAGED NOT
ONLY BY THE GENERAL CONSIDERATION GOVERNING THE CONSTRUCTION OF PENAL
LAWS; IT ALSO HAS REGARD FOR NOT BRINGING TO THE FEDERAL COURTS A MASS
OF MINOR OFFENSES THAT ARE LOCAL IN ORIGIN UNTIL CONGRESS EXPRESSES, IF
NOT AN EXPLICIT, AT LEAST AN UNEQUIVOCAL, DESIRE TO DO SO. 

I WOULD AFFIRM THE JUDGMENT. 
..END :


















FEDERAL TRADE COMMISSION V. NATIONAL LEAD CO. 352 U.S. 419 


NO. 63.  ARGUED DECEMBER 12, 1956 - DECIDED FEBRUARY 25, 1957 - 227 F.2D
825, REVERSED. 


IN A PROCEEDING UNDER SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, THE
FEDERAL TRADE COMMISSION FOUND THAT RESPONDENTS HAD UNLAWFULLY
CONSPIRED TO ADOPT AND USE A ZONE DELIVERED PRICING SYSTEM IN THEIR
SALE OF LEAD PIGMENTS.  IN ITS GENERAL CEASE AND DESIST ORDER
PROHIBITING CONCERT OF ACTION AMONG RESPONDENTS IN THE FURTHER USE OF
SUCH SYSTEM, THE COMMISSION INSERTED A PROVISION DIRECTING EACH
RESPONDENT INDIVIDUALLY TO CEASE AND DESIST FROM ADOPTING THE SAME OR
SIMILAR SYSTEM OF PRICING FOR THE PURPOSE OR WITH THE EFFECT OF
"MATCHING" THE PRICES OF COMPETITORS.  HELD:  THE INCLUSION OF THIS
PROVISION, AS HERE INTERPRETED, WAS WITHIN THE STATUTORY AUTHORITY OF
THE COMMISSION.  PP. 420-431. 

1.  THE FINDINGS OF THE COMMISSION ARE SUPPORTED BY SUBSTANTIAL
EVIDENCE AND ARE BINDING ON RESPONDENTS.  PP. 421-423. 

2.  THE CONTESTED PORTION OF THE ORDER MUST BE VIEWED AS LIMITED IN
THESE RESPECTS:  (1) IT IS TEMPORARY; (2) THE ORDER IS DIRECTED SOLELY
AT THE USE OF A ZONE DELIVERED PRICING SYSTEM; AND (3) ZONE DELIVERED
PRICING PER SE IS NOT BANNED.  PP. 425-426. 

3.  DELIVERED ZONE PRICING VIOLATES THE ORDER ONLY WHEN TWO
CONDITIONS ARE PRESENT: (1) IDENTICAL PRICES WITH COMPETITORS (2)
RESULTING FROM ZONE DELIVERED PRICES.  P. 426. 

4.  SECTION 2(B) OF THE CLAYTON ACT, RELATING TO THE RIGHT OF A
SELLER IN GOOD FAITH TO MEET THE LOWER PRICE OF A COMPETITOR, MUST BE
READ INTO EVERY COMMISSION ORDER, AND RESPONDENTS THEREFORE ARE
AFFORDED ALL THE BENEFITS OF THAT SECTION.  P. 426. 

5.  THE RECORD SHOWS THAT THE RESPONDENTS WERE AFFORDED ALL THE
SAFEGUARDS OF A FAIR HEARING.  PP. 426-428. 

6.  THE REMEDY ADOPTED BY THE COMMISSION HAS A REASONABLE RELATION TO
THE UNLAWFUL PRACTICES WHICH WERE FOUND TO EXIST.  PP. 428-429. 

7.  UNDER THE CIRCUMSTANCES HERE, THE COMMISSION WAS JUSTIFIED IN ITS
DETERMINATION THAT IT WAS NECESSARY TO INCLUDE SOME RESTRAINT IN ITS
ORDER AGAINST THE INDIVIDUAL CORPORATIONS, IN ORDER TO PREVENT A
CONTINUANCE OF THE UNFAIR COMPETITIVE PRACTICES FOUND TO EXIST.  PP.
429-430. 

8.  THE ORDER DOES NOT PROHIBIT OR INTERFERE WITH INDEPENDENT
DELIVERED ZONE PRICING PER SE; NOR DOES IT PROHIBIT THE PRACTICE OF THE
ABSORPTION OF ACTUAL FREIGHT AS SUCH IN ORDER TO FOSTER COMPETITION. 
PP. 430-431. 

9.  HYPOTHETICAL SITUATIONS DO NOT WARRANT STRIKING DOWN THE
CONTESTED PROVISION OF THE ORDER.  P. 431. 

FEDERAL TRADE COMMISSION V. NATIONAL LEAD CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION INVOLVED IN THIS PROCEEDING UNDER SEC. 5 OF THE
FEDERAL TRADE COMMISSION ACT (FN1) CONCERNS THE POWER OF THE COMMISSION
IN FRAMING AN ORDER PURSUANT TO ITS FINDING THAT RESPONDENTS HAD
CONSPIRED TO ADOPT AND USE A ZONE DELIVERED PRICING SYSTEM IN THEIR
SALE OF LEAD PIGMENTS.  (FN2)  IN ITS GENERAL CEASE AND DESIST ORDER
PROHIBITING CONCERT OF ACTION AMONG RESPONDENTS IN THE FURTHER USE OF
SUCH SYSTEM, THE COMMISSION INSERTED A PROVISION DIRECTING EACH
RESPONDENT INDIVIDUALLY TO CEASE AND DESIST FROM ADOPTING THE SAME OR A
SIMILAR SYSTEM OF PRICING FOR THE PURPOSE OR WITH THE EFFECT OF
"MATCHING" THE PRICES OF COMPETITORS.  THE RESPONDENTS ASSERT THAT THIS
IS BEYOND THE POWER OF THE COMMISSION, AND THE COURT OF APPEALS AGREED,
227 F.2D 825, STRIKING THAT PROVISION FROM THE COMMISSION'S ORDER.  WE
GRANTED CERTIORARI, 351 U.S. 961, BECAUSE OF THE IMPORTANCE OF THE
QUESTION IN THE ADMINISTRATION OF THE ACT.  WE RESTORE THE STRICKEN
PROVISION OF THE COMMISSION ORDER, PERMITTING IT TO STAND WITH THE
INTERPRETATIONS PLACED UPON IT IN THIS OPINION. 

                                              I. 

THE ORIGINAL PROCEEDING UNDER SEC. 5 OF THE ACT WAS COMMENCED IN
1944.  THE ORDER WAS ENTERED ON A SECOND AMENDED COMPLAINT FILED IN
1946.  AFTER PROTRACTED HEARINGS, THE COMMISSION ENTERED ITS FINDINGS
WHICH THE COURT OF APPEALS HAS HELD TO BE SUPPORTED BY SUBSTANTIAL
EVIDENCE.  THE FINDINGS MATERIAL HERE ARE AS FOLLOWS: 

THE PRICING PRACTICE OF THE INDUSTRY AS TO THE SALE OF WHITE LEAD IN
OIL PRIOR TO 1933 IS NOT SHOWN IN THE RECORD.  HOWEVER, NATIONAL LEAD
HAD AS EARLY AS 1910 SOLD THIS PIGMENT ON THE BASIS OF TERRITORIAL
DIFFERENTIALS INVOLVING FREE FREIGHT TO SPECIFIED TOWNS.  THE
DIFFERENTIALS ADDED TO THE BASE PRICE WERE GENERALLY UNIFORM FOR SOME
589 CITIES LISTED IN NATIONAL LEAD'S PRICING SYSTEM IN 1933.  THE
CHARGE TO PURCHASERS OUTSIDE THE LISTED CITIES WAS THE BASE PRICE PLUS
ACTUAL FREIGHT TO THE NEAREST LISTED CITY.  IN THE SALES OF DRY WHITE
LEAD AND LEAD OXIDES IT APPEARS THAT BY THE SALES PRACTICE PRIOR TO
1933 THERE WAS A UNIFORM DELIVERED PRICE IN THE CASE OF THE WHITE LEAD,
WHILE THE PURCHASERS OF LEAD OXIDES PAID THE FREIGHT CHARGE IN ADDITION
TO THE BASE PRICE. 

BEGINNING IN JULY 1933, THE INDUSTRY HELD A SERIES OF MEETINGS IN
CHICAGO FOR THE OSTENSIBLE PURPOSE OF DRAFTING A CODE OF FAIR
COMPETITION TO GOVERN IT UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT. 
THESE MEETINGS RESULTED IN AN UNDERSTANDING AND AGREEMENT AMONG THOSE
ATTENDING, INCLUDING RESPONDENTS, TO SELL LEAD PIGMENTS "ON THE BASIS
OF FLAT DELIVERED PRICES TO CUSTOMERS WITHIN DESIGNATED ZONES, WITH
UNIFORM DIFFERENTIALS APPLICABLE AS BETWEEN SUCH ZONES  ...  ."  49
F.T.C. 840.  FOUR ZONING SYSTEMS WERE ESTABLISHED COVERING THE VARIOUS
LEAD PIGMENTS.  AS AN EXAMPLE, THE SYSTEM FOR WHITE LEAD IN OIL AND
"KEG" PRODUCTS CONSISTED OF 12 GEOGRAPHICAL ZONES, ONE KNOWN AS A PAR
ZONE.  THE REMAINING ZONES IN THIS SYSTEM WERE KNOWN AS PREMIUM ZONES,
THE PRICE IN EACH BEING DETERMINED BY ADDING A SET PREMIUM TO THE PAR
ZONE PRICE.  THESE PREMIUMS VARIED FROM $.125 PER CWT. IN TWO OF THE
ZONES TO A HIGH OF $1 PER CWT. IN THE PREMIUM ZONE COVERING THE STATE
OF NEW MEXICO.  (FN3)  THE ZONES WERE HIGHLY ARTIFICIAL AND ZONE
BOUNDARIES LED TO BIZARRE RESULTS AT TIMES, WITH PURCHASERS LOCATED
NEAR THE PLANTS OF RESPONDENTS BEING CHARGED HIGHER PRICES THAN THOSE
LOCATED AT A DISTANCE FROM THE PLANTS.  THE INDUSTRY, INCLUDING
RESPONDENTS, NOT ONLY AGREED TO SELL AT THE SAME ZONE DELIVERED PRICES
IN IDENTICAL GEOGRAPHICAL ZONES BUT ALSO ADOPTED UNIFORM DISCOUNTS,
TERMS OF SALE, AND DIFFERENTIALS WITH RESPECT TO CERTAIN OF THEIR
PRODUCTS.  A FURTHER AGREEMENT WAS TO SELL WHITE LEAD IN OIL ON THE
BASIS OF CONSIGNMENT CONTRACTS. 

THE COMMISSION STATED THAT "NOWHERE IN THE CODE, NOR IN ANY
PRELIMINARY DRAFT OF A CODE PRODUCED AT THE MEETINGS OF ANY OF THE
COMMITTEES, IS THERE ANY REFERENCE TO THE USE OF ZONES OR TO
TERRITORIAL DIFFERENCES IN THE PRICES OF LEAD PIGMENTS, OR TO THE USE
OF AGENCY OR CONSIGNMENT CONTRACTS OR ARRANGEMENTS IN THE SALE OF WHITE
LEAD-IN-OIL."  ID., AT 839.  THE COMMISSION ADDED THAT "WITH CERTAIN
EXCEPTIONS, THE RESPONDENTS HAVE FOLLOWED THE PRICING PRACTICES AND
HAVE ADHERED TO THE TERMS AND CONDITIONS FOR THE SALE OF LEAD PIGMENTS
AGREED UPON IN 1933 AND 1934 AS HEREIN FOUND FROM 1934 TO THE PRESENT
TIME."  ID., AT 849.  THE RESPONDENTS ADMIT THAT THEY ARE BOUND BY
THESE FINDINGS AND WE SEE NO REASON TO DISTURB THEM. 

                         II. 

THE COMMISSION ENTERED AN ORDER PROHIBITING RESPONDENTS FROM ENTERING
INTO OR CARRYING OUT ANY "PLANNED COMMON COURSE OF ACTION," AGREEMENT,
OR CONSPIRACY TO SELL AT PRICES DETERMINED PURSUANT TO A "ZONE
DELIVERED PRICE SYSTEM," OR ANY OTHER SYSTEM RESULTING IN IDENTICAL
PRICES AT THE POINTS OF SALE.  THE ORDER ALSO INCLUDED A PROVISION, TO
WHICH RESPONDENTS STRENUOUSLY OBJECT, DIRECTING EACH OF THEM TO CEASE
AND DESIST FROM: 

"QUOTING OR SELLING LEAD PIGMENTS AT PRICES CALCULATED OR DETERMINED
IN WHOLE OR IN PART PURSUANT TO OR IN ACCORDANCE WITH A ZONE DELIVERED
PRICE SYSTEM FOR THE PURPOSE OR WITH THE EFFECT OF SYSTEMATICALLY
MATCHING THE DELIVERED PRICE QUOTATIONS OR THE DELIVERED PRICES OF
OTHER SELLERS OF LEAD PIGMENTS AND THEREBY PREVENTING PURCHASERS FROM
FINDING ANY ADVANTAGE IN PRICE IN DEALING WITH ONE OR MORE SELLERS AS
AGAINST ANOTHER."  ID., AT 873-874. 

THE COMMISSION, IN AN ACCOMPANYING OPINION, STATED THAT IN ALL CASES
WHERE IT FOUND VIOLATIONS OF THE LAW, "IT IS THE COMMISSION'S DUTY TO
DETERMINE TO THE BEST OF ITS ABILITY THE REMEDY NECESSARY TO SUPPRESS
SUCH ACTIVITY AND TO TAKE EVERY PRECAUTION TO PRECLUDE ITS REVIVAL." 
ID., AT 844.  IN THIS CASE, THE OPINION POINTED OUT, THE RESPONDENTS
COOPERATIVELY REVISED THE PRICING PRACTICES IN THE INDUSTRY BY
ESTABLISHING A "UNIFORM ZONE PRICING SYSTEM."  DETAILED DISCUSSIONS
WERE CARRIED ON WHICH RESULTED NOT ONLY IN AN AGREEMENT, BUT "MAPS
SHOWING THE BOUNDARIES OF THE ZONES TO BE OBSERVED  ...  WERE
DISTRIBUTED" BY THE INDIVIDUAL RESPONDENTS.  ID., AT 884.  EACH
RESPONDENT HAS "SINCE THAT TIME  ...  FOLLOWED THE PRICING SYSTEM AND
ADHERED TO THE ZONE BOUNDARIES SO DISCUSSED AND SHOWN ON THESE MAPS." 
IBID.  DISCUSSING THE COMPLAINT, THE COMMISSION IN ITS OPINION FURTHER
NOTED THAT CHARGES WERE INCLUDED AGAINST EACH RESPONDENT AS TO ITS
INDIVIDUAL USE OF AND ADHERENCE TO THE ZONE SYSTEM OF SELLING "'FOR THE
PURPOSE AND WITH THE EFFECT OF ENABLING THE RESPONDENTS TO MATCH
EXACTLY THEIR OFFERS TO SELL LEAD PIGMENTS TO ANY PROSPECTIVE PURCHASER
AT ANY DESTINATION, THEREBY ELIMINATING COMPETITION BETWEEN AND AMONG
THEMSELVES.'  ...  IT WAS THE ADHERENCE BY EACH OF THEM TO THIS SYSTEM
OF PRICING THAT MADE THE COMBINATION WORK  ...  .  UNLESS AND UNTIL
EACH OF THE RESPONDENTS IS PROHIBITED FROM SO ADHERING TO THE SYSTEM
AND FROM SO USING THE ZONES, THE EVILS SPRINGING FROM THE COMBINATION,
ONE OF WHICH IS TO ELIMINATE PRICE COMPETITION, MAY WELL CONTINUE
INDEFINITELY.  UNLESS THE RESPONDENTS, REPRESENTING PRACTICALLY THE
ENTIRE ECONOMIC POWER IN THE INDUSTRY, ARE DEPRIVED OF THE DEVICE WHICH
MADE THEIR COMBINATION EFFECTIVE, AN ORDER MERELY PROHIBITING THE
COMBINATION MAY WELL BE A USELESS GESTURE."  ID., AT 884-885.  IN ITS
VIEW, THE COMMISSION ADDED, THE "PROHIBITION IS NECESSARY, NOT BECAUSE
IT IS UNLAWFUL IN ALL CIRCUMSTANCES FOR AN INDIVIDUAL SELLER, ACTING
INDEPENDENTLY, TO SELL ITS PRODUCTS ON A DELIVERED PRICE BASIS IN
SPECIFIED TERRITORIES, BUT TO MAKE THE ORDER FULLY EFFECTIVE AGAINST
THE TRADE RESTRAINING CONSPIRACY IN WHICH EACH OF THE RESPONDENTS
(DEFENDANTS) PARTICIPATED."  ID., AT 884.  WHEN AND IF COMPETITION IS
RESTORED AND THE INDIVIDUAL PROHIBITION IS NO LONGER NECESSARY, THE
COMMISSION EXPRESSED ITS INTENTION, UPON APPLICATION, TO VACATE THE
LATTER PROVISION OF ITS ORDER. 

III. 

AT THE BEGINNING WE MUST UNDERSTAND THE LIMITS OF THE CONTESTED
PORTION OF THE ORDER.  FIRST, IT IS TEMPORARY.  THOUGH ITS LIFE
EXPECTANCY IS NOT DEFINITE, IT IS CLEAR THAT THE COMMISSION WAS
CREATING A BREATHING SPELL DURING WHICH INDEPENDENT PRICING MIGHT BE
ESTABLISHED WITHOUT THE HANG-OVER OF THE LONG-EXISTING PATTERN OF
COLLUSION.  SECOND, THE ORDER IS DIRECTED SOLELY AT THE USE OF A ZONE
DELIVERED PRICING SYSTEM (FN4) AND NO OTHER.  THIS SYSTEM IS A PRICING
METHOD BASED ON GEOGRAPHIC DIVISIONS OR ZONES, THE BOUNDARIES OF WHICH
ARE ENTIRELY DRAWN BY THE SELLER.  HIS DELIVERED PRICE IS THE SAME
THROUGHOUT A PARTICULAR GEOGRAPHIC ZONE SO DRAWN UP BY HIM. 
CUSTOMARILY THE DELIVERED PRICE IS DIFFERENT BETWEEN ZONES, THOUGH AS
HERE, WIDELY SEPARATED ZONES, GEOGRAPHICALLY, MIGHT HAVE THE SAME
DELIVERED PRICE.  IT IS WELL TO MENTION HERE THAT WHILE THIS COURT HAS
PASSED UPON THE VALIDITY OF BASING POINT SYSTEMS OF SALES, CORN
PRODUCTS REFINING CO. V. FEDERAL TRADE COMMISSION, 324 U.S. 726 (1945),
IT HAS NOT DECIDED THE VALIDITY OF THE ZONE PRICING PLAN USED HERE. 
THIRD, ZONE DELIVERED PRICING PER SE IS NOT BANNED BY THE ORDER.  THE
COMMISSION MIGHT HAVE MADE THE ORDER MORE SPECIFIC BY ENTERING A FLAT
PROHIBITION OF THE USE FOR A DEFINITE PERIOD OF THE DEVICE FOUND TO BE
"THE VERY CORNERSTONE OF THE  ...  CONSPIRACY," I.E., ZONE PRICING. 
SEE HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 428 (1945),
WHERE THE CORPORATE DEFENDANTS WERE ENJOINED FROM "FORMING OR JOINING
ANY SUCH TRADE ASSOCIATION" FOR A PERIOD OF FIVE YEARS.  BUT THE
COMMISSION CHOSE THE MORE FLEXIBLE SANCTION, I.E., THE LIMITED USE OF
ZONE DELIVERED PRICING.  HOWEVER, IT CONCLUDED THAT THE FUTURE USE
SHOULD BE TEMPORARILY RESTRICTED FOR THE PROTECTION OF THE PUBLIC.  AND
SO, DELIVERED ZONE PRICING VIOLATES THE ORDER ONLY WHEN TWO CONDITIONS
ARE PRESENT: (1) IDENTICAL PRICES WITH COMPETITORS (2) RESULTING FROM
ZONE DELIVERED PRICING.  CONSIDERING THESE CONDITIONS WITH THE
MECHANICS OF THE ZONE PLAN, WE SEE THAT THE ONLY WAY PRICES CAN BE
SYSTEMATICALLY IDENTICAL IS FOR THE ZONES OF COMPETITORS TO BE SO DRAWN
AS TO BE IN WHOLE OR IN PART IDENTICAL AND FOR ZONE PRICES TO BE THE
SAME IN THOSE ZONES WHICH COINCIDE OR OVERLAP.  (FN5) 

RESPONDENTS CONTEND THAT THE CEASE AND DESIST ORDER, AS WRITTEN,
EXCLUDES THE BENEFITS OF SEC. 2(B) OF THE CLAYTON ACT.  (FN6)  WHILE
SEC. 2(B) "DOES NOT CONCERN ITSELF WITH PRICING SYSTEMS  ... BUT ONLY
WITH THE SELLER'S 'LOWER' PRICE AND WITH THAT ONLY TO THE EXTENT THAT
IT IS MADE 'IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A
COMPETITOR,'" FEDERAL TRADE COMMISSION V. A.E. STALEY MFG. CO., 324
U.S. 746, 753 (1945), THIS SECTION IS READ INTO EVERY COMMISSION
ORDER.  FEDERAL TRADE COMMISSION V. RUBEROID CO., 343 U.S. 470, 476
(1952).  SINCE SEC. 2(B) MUST, THEREFORE, BE READ INTO THIS ORDER, THE
RESPONDENTS ARE AFFORDED ALL OF THE BENEFITS OF THAT SECTION. 

       IV. 

IT IS THE CONTENTION OF RESPONDENTS THAT THE CONTESTED PARAGRAPH OF
THE ORDER EFFECTIVELY BANS THE NONCOLLUSIVE, INDIVIDUAL USE OF ZONE
PRICING, A LAWFUL, COMPETITIVE SALES METHOD, AND IS THEREFORE BEYOND
THE AUTHORITY OF THE COMMISSION.  RESPONDENTS FURTHER ASSERT THAT EVEN
IF THE COMMISSION HAD SUCH AUTHORITY ITS EXERCISE HERE WAS ENTIRELY
IMPROPER, UNNECESSARY, AND WOULD, IN FACT, HAMPER COMPETITION IN THE
INDUSTRY.  THEY STRESS THAT THE COMPLAINT DID NOT INCLUDE A CHARGE THAT
THE INDIVIDUAL USE OF ZONE PRICING WAS UNLAWFUL; THAT IT CAME INTO THE
CASE AFTER THE TRIAL EXAMINER HAD FILED HIS RECOMMENDED DECISION AND
ORDER; AND THAT RESPONDENTS WERE DENIED THE OPPORTUNITY OF REBUTTING
THE CHARGE BY EVIDENCE SHOWING ZONE PRICING TO BE "A LOGICAL,
ECONOMICAL, AND COMPETITIVE METHOD OF DOING BUSINESS."  THE INSERTION
OF THE OBJECTIONABLE PARAGRAPH, THEY CONTEND, VIOLATES DUE PROCESS IN
THAT THEY HAD NO OPPORTUNITY TO DEFEND.  SINCE SEC. 2(B) IS READ INTO
EVERY COMMISSION ORDER AND SINCE IT WOULD ALLOW RESPONDENTS TO REBUT
THE CHARGE, THEIR CONTENTION IS COMPLETELY ANSWERED AND WE SHALL NOT
DEAL WITH IT FURTHER. 

IT DOES WITHOUT SAYING THAT THE REQUIREMENTS OF A FAIR HEARING
INCLUDE NOTICE OF THE CLAIMS OF THE OPPOSING PARTY AND AN OPPORTUNITY
TO MEET THEM.  MORGAN V. UNITED STATES, 304 U.S. 1 (1938).  THE RECORD
INDICATES THAT THE RESPONDENTS WERE AFFORDED THOSE SAFEGUARDS.  THE
EMPHASIS THAT THERE WAS NO CHARGE, NO EVIDENCE, NO FINDING TO SUPPORT
THE INCLUSION OF THE OBJECTIONABLE PROVISION IN THE ORDER IS
MISPLACED.  ITS INSERTION WAS NOTHING MORE THAN A MODE OF
IMPLEMENTATION, SELECTED BY THE COMMISSION, TO ENFORCE ITS FINDINGS OF
VIOLATIONS OF THE ACT.  MOREOVER, THE RECORD IS REPLETE WITH EVIDENCE
THAT COUNSEL SUPPORTING THE COMPLAINT WOULD SEEK THE USE OF SUCH A
METHOD OF ENFORCEMENT.  AS FAR BACK AS IN EARLY 1947, WHILE THE CASE
WAS BEFORE THE EXAMINER, THE ISSUE CONCERNING THE EFFECT OF THE ZONE
PRICING SYSTEM USED BY RESPONDENTS WAS BEFORE THE COMMISSION ON MOTIONS
TO DISMISS.  ADMITTEDLY COUNT II OF THE COMPLAINT DEALT WITH THE USE OF
THE ZONE SYSTEM ITSELF.  THE COMMISSION OVERRULED THE MOTIONS TO
DISMISS, ADOPTING THE VIEW OF COUNSEL SUPPORTING THE COMPLAINT THAT ITS
ALLEGATIONS WERE DIRECTED AGAINST THE EFFECTS OF THE ALLEGED SYSTEM OR
METHOD, I.E., THE ZONE PRICING PLAN, AND "NOT AGAINST INDIVIDUAL
INSTANCES" OF DISCRIMINATION IN PRICING.  FURTHERMORE, IN MAY 1948,
ALMOST FIVE YEARS BEFORE THE DECREE WAS ENTERED, COUNSEL SUPPORTING THE
COMPLAINT FILED WRITTEN EXCEPTIONS TO THE RECOMMENDED DECISION OF THE
EXAMINER ON THE GROUND, AMONG OTHERS, THAT IT DID NOT INCLUDE A
PROVISION SIMILAR TO THE ONE OBJECTED TO HERE.  IF RESPONDENTS THOUGHT
REBUTTAL EVIDENCE NECESSARY, THE RECORD IS BARE OF ANY EFFORT ON THEIR
PART TO OFFER IT. NOR WAS ANY REQUEST MADE TO REOPEN THE CASE FOR THAT
PURPOSE AFTER IT REACHED THE COMMISSION.   WE PASS ON TO RESPONDENTS'
MAJOR CONTENTION QUESTIONING THE POWER OF THE COMMISSION.  AS THE COURT
HAS SAID MANY TIMES BEFORE, THE COMMISSION MAY EXERCISE ONLY THE POWERS
GRANTED IT BY THE ACT.  FEDERAL TRADE COMMISSION V. WESTERN MEAT CO.,
272 U.S. 554, 559 (1926).  THE RELEVANT SECTIONS EMPOWER THE COMMISSION
TO PREVENT THE USE OF UNFAIR METHODS OF COMPETITION AND AUTHORIZE IT,
AFTER FINDING AN UNFAIR METHOD PRESENT, TO ENTER AN ORDER REQUIRING THE
OFFENDER "TO CEASE AND DESIST" FROM USING SUCH UNFAIR METHOD. 

THE COURT HAS HELD THAT THE COMMISSION IS CLOTHED WITH WIDE
DISCRETION IN DETERMINING THE TYPE OF ORDER THAT IS NECESSARY TO BRING
AN END TO THE UNFAIR PRACTICES FOUND TO EXIST.  IN JACOB SIEGEL CO. V.
FEDERAL TRADE COMMISSION, 327 U.S. 608 (1946), THE COURT NAMED THE
COMMISSION "THE EXPERT BODY TO DETERMINE WHAT REMEDY IS NECESSARY TO
ELIMINATE THE UNFAIR OR DECEPTIVE TRADE PRACTICES WHICH HAVE BEEN
DISCLOSED.  IT HAS WIDE LATITUDE FOR JUDGMENT AND THE COURTS WILL NOT
INTERFERE EXCEPT WHERE THE REMEDY SELECTED HAS NO REASONABLE RELATION
TO THE UNLAWFUL PRACTICES FOUND TO EXIST."  ID., AT 612-613. 
THEREAFTER, IN FEDERAL TRADE COMMISSION V. CEMENT INSTITUTE, 333 U.S.
683, 726 (1948), THE COURT POINTED OUT THAT THE CONGRESS, IN PASSING
THE ACT, "FELT THAT COURTS NEEDED THE ASSISTANCE OF MEN TRAINED TO
COMBAT MONOPOLISTIC PRACTICES IN THE FRAMING OF JUDICIAL DECREES IN
ANTITRUST LITIGATION."  IN THE LIGHT OF THIS, THE COURT REASONED, IT
SHOULD NOT "LIGHTLY MODIFY" THE ORDERS OF THE COMMISSION.  AGAIN, IN
FEDERAL TRADE COMMISSION V. RUBERROID CO., SUPRA, AT 473, WE SAID THAT
"IF THE COMMISSION IS TO ATTAIN THE OBJECTIVES CONGRESS ENVISIONED, IT
CANNOT BE REQUIRED TO CONFINE ITS ROAD BLOCK TO THE NARROW LANE THE
TRANSGRESSOR HAS TRAVELED; IT MUST BE ALLOWED EFFECTIVELY TO CLOSE ALL
ROADS TO THE PROHIBITED GOAL, SO THAT ITS ORDER MAY NOT BE BY-PASSED
WITH IMPUNITY."  WE POINTED OUT THERE THAT CONGRESS HAD PLACED THE
PRIMARY RESPONSIBILITY FOR FASHIONING ORDERS UPON THE COMMISSION. 
THESE CASES NARROW THE ISSUE TO THE QUESTION: DOES THE REMEDY SELECTED
HAVE A "REASONABLE RELATION TO THE UNLAWFUL PRACTICES FOUND TO EXIST"? 
WE BELIEVE THAT IT DOES.  FIRST, THE SIMPLICITY OF OPERATION OF THE
PLAN LENDS ITSELF TO UNLAWFUL MANIPULATION; SECOND, IT HAD BEEN USED IN
THE INDUSTRY FOR ALMOST A QUARTER OF A CENTURY; AND, THIRD, ITS
ORIGINATOR AND CHIEF BENEFICIARY HAD BEEN PREVIOUSLY ADJUDGED A
VIOLATOR OF THE ANTITRUST LAWS.  UNITED STATES V. NATIONAL LEAD CO.,
332 U.S. 319 (1947). 

THE RESPONDENTS WERE FOUND TO HAVE PLAINLY DISREGARDED THE LAW.  IN
THIS RESPECT THE COMMISSION CORRECTLY CONSIDERED THE CIRCUMSTANCES
UNDER WHICH THE ILLEGAL ACTS OCCURRED.  THOSE IN UTTER DISREGARD OF
LAW, AS HERE, "CALL FOR REPRESSION BY STERNER MEASURES THAN WHERE THE
STEPS COULD REASONABLY HAVE BEEN THOUGHT PERMISSIBLE."  UNITED STATES
V. UNITED STATES GYPSUM CO., 340 U.S. 76, 89-90 (1950).  RESPONDENTS
MADE NO APPEAL HERE FROM SOME OF THE FINDINGS AS TO THEIR GUILT. 
HAVING LOST THE BATTLE ON THE FACTS, THEY HOPE TO WIN THE WAR ON THE
TYPE OF DECREE.  THEY FIGHT FOR THE RIGHT TO CONTINUE TO USE
INDIVIDUALLY THE VERY SAME WEAPON WITH WHICH THEY CARRIED ON THEIR
UNLAWFUL ENTERPRISE.  THE COMMISSION CONCLUDED THAT THIS MUST NOT BE
PERMITTED.  IT WAS "NOT OBLIGED TO ASSUME, CONTRARY TO COMMON
EXPERIENCE, THAT A VIOLATOR OF THE ANTITRUST LAWS WILL RELINQUISH THE
FRUITS OF HIS VIOLATION MORE COMPLETELY THAN IT REQUIRES  ...  ." 
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 400 (1947). 
ALTHOUGH THE ZONE PLAN MIGHT BE USED FOR SOME LAWFUL PURPOSES, DECREES
OFTEN SUPPRESS A LAWFUL DEVICE WHEN IT IS USED TO CARRY OUT AN UNLAWFUL
PURPOSE.  ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436 (1940);
UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707 (1944).  IN
SUCH INSTANCES THE COURT IS OBLIGED NOT ONLY TO SUPPRESS THE UNLAWFUL
PRACTICE BUT TO TAKE SUCH REASONABLE ACTION AS IS CALCULATED TOO
PRECLUDE THE REVIVAL OF THE ILLEGAL PRACTICES.  ETHYL GASOLINE CORP. V.
UNITED STATES, SUPRA, AT 461; LOCAL 167, I.B.T. V. UNITED STATES, 291
U.S. 293 (1934).  SEE ALSO UNITED STATES V. UNITED STATES GYPSUM CO.,
SUPRA; UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 188
(1944).  (FN7)  WE THEREFORE CONCLUDE THAT, UNDER THE CIRCUMSTANCES
HERE, THE COMMISSION WAS JUSTIFIED IN ITS DETERMINATION THAT IT WAS
NECESSARY TO INCLUDE SOME RESTRAINT IN ITS ORDER AGAINST THE INDIVIDUAL
CORPORATIONS IN ORDER TO PREVENT A CONTINUANCE OF THE UNFAIR
COMPETITIVE PRACTICES FOUND TO EXIST.  FEDERAL TRADE COMMISSION V.
STANDARD EDUCATION SOCIETY, 302 U.S. 112, 120 (1937).  WE SHALL NOW
EXAMINE THE RESTRAINT IMPOSED. 

RESPONDENTS POINT OUT THAT IN ONLY ONE OTHER CASE IN THE LONG HISTORY
OF THE COMMISSION HAS A SIMILAR ORDER BEEN ENTERED.  THEY SAY OUR
RESTORATION OF THE CONTESTED PARAGRAPH WILL EFFECTIVELY PREVENT
COMPETITION.  IN ITS SUPPLEMENTAL MEMORANDUM, SEE NOTE 5, SUPRA, THE
COMMISSION HAS CLEARLY STATED ITS UNDERSTANDING OF THE SCOPE AND EFFECT
OF THE ORDER.  IT IS OUR CONCLUSION THAT THE ORDER WAS NOT INTENDED TO
AND DOES NOT PROHIBIT OR INTERFERE WITH INDEPENDENT DELIVERED ZONE
PRICING PER SE.  NOR DOES IT PROHIBIT THE PRACTICE OF THE ABSORPTION OF
ACTUAL FREIGHT AS SUCH IN ORDER TO FOSTER COMPETITION.  FURTHERMORE, AS
WE HAVE SAID, THERE IS READ INTO THE ORDER THE PROVISION OF SEC. 2(B)
OF THE CLAYTON ACT AS TO THE RIGHT OF A SELLER IN GOOD FAITH TO MEET
THE LOWER PRICE OF THE COMPETITOR.  THIS IS NOT TO SAY THAT A SELLER
MAY PLEAD THIS SECTION IN DEFENSE OF THE USE OF AN ENTIRE PRICING
SYSTEM.  THE SECTION IS DESIGNED TO PROTECT COMPETITORS IN INDIVIDUAL
TRANSACTIONS. 

RESPONDENTS POSE HYPOTHETICAL SITUATIONS WHICH THEY SAY MAY RISE UP
TO PLAGUE THEM.  HOWEVER, "WE THINK IT WOULD NOT BE GOOD JUDICIAL
ADMINISTRATION," AS OUR LATE BROTHER JACKSON SAID IN INTERNATIONAL SALT
CO. V. UNITED STATES, 332 U.S. 392, 401 (1947), TO STRIKE THE CONTESTED
PARAGRAPH OF THE ORDER TO MEET SUCH CONJECTURES.  THE COMMISSION HAS
RESERVED JURISDICTION TO MEET JUST SUCH CONTINGENCIES.  AS ACTUAL
SITUATIONS ARISE THEY CAN BE PRESENTED TO THE COMMISSION IN EVIDENTIARY
FORM RATHER THAN AS FANTASIES.  AND, WE MIGHT ADD, IF THERE IS A BURDEN
THAT CANNOT BE MADE LIGHTER AFTER APPLICATION TO THE COMMISSION, THEN
RESPONDENTS MUST REMEMBER THAT THOSE CAUGHT VIOLATING THE ACT MUST
EXPECT SOME FENCING IN.  UNITED STATES V. CRESCENT AMUSEMENT CO.,
SUPRA, AT 187.  REVERSED. 

FN1  38 STAT. 719, AS AMENDED, 15 U.S.C. SEC. 45. 

FN2  THE THREE PRINCIPAL LEAD PIGMENTS ARE DRY WHITE LEAD, WHITE LEAD
IN OIL, AND THE LEAD OXIDES, RED LEAD AND LITHARGE.  DRY WHITE LEAD IS
A FINE WHITE POWDER USED AS A PIGMENT IN PAINTS.  WHITE LEAD IN OIL IS
WHITE LEAD WITH LINSEED OIL ADDED AND IS SOLD FOR USE AS THE BASIC
INGREDIENT IN EXTERIOR HOUSE PAINT.  LEAD OXIDES AND LITHARGE ARE SOLD
TO ELECTRIC STORAGE BATTERY MANUFACTURERS AS THE BASIC RAW MATERIAL FOR
BATTERY PLATES.  RED LEAD IS ALSO THE BASIC INGREDIENT IN RED LEAD
PAINT COMMONLY USED AS A PROTECTIVE COATING FOR IRON AND STEEL
STRUCTURES. 

FN3  THE PAR ZONE INCLUDES A NUMBER OF NORTHEASTERN AND MIDWESTERN
STATES.  HOWEVER, SOME CITIES LOCATED WITHIN THESE STATES ARE EXCLUDED
FROM THE PAR ZONE.  ON THE OTHER HAND, THE SAN FRANCISCO AREA IS A PAR
ZONE, AS IS THE CITY OF ST. LOUIS, THOUGH BOTH ARE LOCATED IN STATES
NOT INCLUDED IN PAR ZONE AREAS.  FOR A DETAILED DISCUSSION AND MAPS OF
THE OPERATION OF THE ZONE PRICING SYSTEM, SEE THE FINDINGS, 49 F.T.C.
840-870. 

FN4  OUR DISCUSSION OF THE ZONE DELIVERED PRICING SYSTEM SHOULD IN NO
WAY BE CONSTRUED AS OUR APPROVAL OF ITS USE.  WE DO NOT REACH THAT
QUESTION. 

FN5  AT ORAL ARGUMENT, COUNSEL FOR THE FEDERAL TRADE COMMISSION WAS
REQUESTED BY THE COURT TO SUBMIT A STATEMENT ON BEHALF OF THE
COMMISSION SETTING FORTH ITS VIEW AS TO THE SCOPE OF THE DISPUTED
PARAGRAPH OF THE CEASE AND DESIST ORDER.  IN RESPONSE, THE COMMISSION
SUPPLIED ITS INTERPRETATION WHICH COINCIDES WITH THAT SET OUT HERE. 

FN6  49 STAT. 1526, 15 U.S.C. SEC. 13(B). 

FN7  WE NEED NOT DISCUSS THE FULL SCOPE OF THE POWERS OF THE FEDERAL
TRADE COMMISSION, NOR THEIR RELATIVE BREADTH IN COMPARISON WITH THOSE
OF A COURT OF EQUITY.  AS THIS COURT SAID IN MAY DEPT. STORES CO. V.
LABOR BOARD, 326 U.S. 376, 390 (1945), "THE TEST  ...  IS WHETHER THE
BOARD MIGHT HAVE REASONABLY CONCLUDED  ...  THAT SUCH AN ORDER WAS
NECESSARY  ...  ." 
..END :



BREITHAUPT V. ABRAM 352 U.S. 432 


NO. 69.  ARGUED DECEMBER 12-13, 1956 - DECIDED FEBRUARY 25, 1957 - 58
N.M. 385, 271 P.2D 827, AFFIRMED. 


PETITIONER, WHILE DRIVING A PICKUP TRUCK ON A STATE HIGHWAY, WAS
INVOLVED IN A COLLISION WHICH RESULTED IN THE DEATHS OF THREE PERSONS
AND HIS SERIOUS INJURY.  WHILE HE WAS LYING UNCONSCIOUS IN THE
EMERGENCY ROOM OF A HOSPITAL, THE SMELL OF LIQUOR WAS DETECTED ON HIS
BREATH, AND A STATE PATROLMAN REQUESTED THAT A SAMPLE OF HIS BLOOD BE
TAKEN.  AN ATTENDING PHYSICIAN, USING A HYPODERMIC NEEDLE, DREW A BLOOD
SAMPLE, WHICH ON LABORATORY ANALYSIS CONTAINED ABOUT .17% ALCOHOL. 
THEREAFTER PETITIONER WAS CONVICTED IN A STATE COURT FOR INVOLUNTARY
MANSLAUGHTER.  AT HIS TRIAL, THE EVIDENCE OF THE BLOOD TEST, TOGETHER
WITH EXPERT TESTIMONY THAT A PERSON WITH .17% ALCOHOL IN HIS BLOOD WAS
UNDER THE INFLUENCE OF INTOXICATING LIQUOR, WAS ADMITTED OVER
PETITIONER'S OBJECTION.  HELD; PETITIONER WAS NOT DEPRIVED OF DUE
PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  PP. 433-440. 

(A)  IN A PROSECUTION IN A STATE COURT FOR A STATE CRIME, THE
FOURTEENTH AMENDMENT DOES NOT FORBID THE USE OF EVIDENCE OBTAINED BY AN
UNREASONABLE SEARCH AND SEIZURE VIOLATIVE OF THE FOURTH AMENDMENT NOR
OF COMPELLED TESTIMONY VIOLATIVE OF THE FIFTH AMENDMENT, EVEN IF THE
EVIDENCE IN THIS CASE WERE SO OBTAINED.  P. 434. 

(B)  THE TAKING OF A BLOOD TEST BY A SKILLED TECHNICIAN IS NOT
"CONDUCT THAT SHOCKS THE CONSCIENCE," NOR SUCH A METHOD OF OBTAINING
EVIDENCE AS OFFENDS A "SENSE OF JUSTICE."  ROCHIN V. CALIFORNIA, 342
U.S. 165, AND BROWN V. MISSISSIPPI, 297 U.S. 278, DISTINGUISHED.  PP.
435-438. 

(C)  THE RIGHT OF THE INDIVIDUAL TO IMMUNITY FROM SUCH INVASION OF
THE BODY AS IS INVOLVED IN A PROPERLY SAFEGUARDED BLOOD TEST IS FAR
OUTWEIGHED BY THE VALUE OF ITS DETERRENT EFFECT DUE TO PUBLIC
REALIZATION THAT THE ISSUE OF DRIVING WHILE UNDER THE INFLUENCE OF
ALCOHOL CAN OFTEN BY THIS METHOD BE TAKEN OUT OF THE CONFUSION OF
CONFLICTING CONTENTIONS.  PP. 439-440. 

BREITHAUPT V. ABRAM, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF NEW MEXICO. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, WHILE DRIVING A PICKUP TRUCK ON THE HIGHWAYS OF NEW
MEXICO, WAS INVOLVED IN A COLLISION WITH A PASSENGER CAR.  THREE
OCCUPANTS OF THE CAR WERE KILLED AND PETITIONER WAS SERIOUSLY INJURED. 
A PINT WHISKEY BOTTLE, ALMOST EMPTY, WAS FOUND IN THE GLOVE COMPARTMENT
OF THE PICKUP TRUCK.  PETITIONER WAS TAKEN TO A HOSPITAL AND WHILE HE
WAS LYING UNCONSCIOUS IN THE EMERGENCY ROOM THE SMELL OF LIQUOR WAS
DETECTED ON HIS BREATH.  A STATE PATROLMAN REQUESTED THAT A SAMPLE OF
PETITIONER'S BLOOD BE TAKEN.  AN ATTENDING PHYSICIAN, WHILE PETITIONER
WAS UNCONSCIOUS, WITHDREW A SAMPLE OF ABOUT 20 CUBIC CENTIMETERS OF
BLOOD BY USE OF A HYPODERMIC NEEDLE.  THIS SAMPLE WAS DELIVERED TO THE
PATROLMAN AND SUBSEQUENT LABORATORY ANALYSIS SHOWED THIS BLOOD TO
CONTAIN ABOUT .17% ALCOHOL. 

PETITIONER WAS THEREAFTER CHARGED WITH INVOLUNTARY MANSLAUGHTER. 
TESTIMONY REGARDING THE BLOOD TEST AND ITS RESULT WAS ADMITTED INTO
EVIDENCE AT TRIAL OVER PETITIONER'S OBJECTION.  THIS INCLUDED TESTIMONY
OF AN EXPERT THAT A PERSON WITH .17% ALCOHOL IN HIS BLOOD WAS UNDER THE
INFLUENCE OF INTOXICATING LIQUOR.  PETITIONER WAS CONVICTED AND
SENTENCED FOR INVOLUNTARY MANSLAUGHTER.  HE DID NOT APPEAL THE
CONVICTION.  SUBSEQUENTLY, HOWEVER, HE SOUGHT RELEASE FROM HIS
IMPRISONMENT BY A PETITION FOR A WRIT OF HABEAS CORPUS TO THE SUPREME
COURT OF NEW MEXICO.  (FN1)  THAT COURT, AFTER ARGUMENT, DENIED THE
WRIT.  58 N.M. 385, 271 P.2D 827 (1954).  PETITIONER CONTENDS THAT HIS
CONVICTION, BASED ON THE RESULT OF THE INVOLUNTARY BLOOD TEST, DEPRIVED
HIM OF HIS LIBERTY WITHOUT THAT DUE PROCESS OF LAW GUARANTEED HIM BY
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION.  WE GRANTED CERTIORARI,
351 U.S. 906, TO DETERMINE WHETHER THE REQUIREMENTS OF THE DUE PROCESS
CLAUSE, AS IT CONCERNS STATE CRIMINAL PROCEEDINGS, NECESSITATE THE
INVALIDATION OF THE CONVICTION.   IT HAS BEEN CLEAR SINCE WEEKS V.
UNITED STATES, 232 U.S. 383 (1914), THAT EVIDENCE OBTAINED IN VIOLATION
OF RIGHTS PROTECTED BY THE FOURTH AMENDMENT TO THE FEDERAL CONSTITUTION
MUST BE EXCLUDED IN FEDERAL CRIMINAL PROSECUTIONS.  THERE IS ARGUMENT
ON BEHALF OF PETITIONER THAT THE EVIDENCE USED HERE, THE RESULT OF THE
BLOOD TEST, WAS OBTAINED IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT IN THAT THE TAKING WAS THE RESULT OF AN
UNREASONABLE SEARCH AND SEIZURE VIOLATIVE OF THE FOURTH AMENDMENT. 
LIKEWISE, HE ARGUES THAT BY WAY OF THE FOURTEENTH AMENDMENT THERE HAS
BEEN A VIOLATION OF THE FIFTH AMENDMENT IN THAT INTRODUCTION OF THE
TEST RESULT COMPELLED HIM TO BE A WITNESS AGAINST HIMSELF.  PETITIONER
RELIES ON THE PROPOSITION THAT "THE GENERATIVE PRINCIPLES" OF THE BILL
OF RIGHTS SHOULD EXTEND THE PROTECTIONS OF THE FOURTH AND FIFTH
AMENDMENTS TO HIS CASE THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  BUT WOLF V. COLORADO, 338 U.S. 25 (1949), ANSWERS THIS
CONTENTION IN THE NEGATIVE.  SEE ALSO TWINING V. NEW JERSEY, 211 U.S.
78 (1908); PALKO V. CONNECTICUT, 302 U.S. 319 (1937); IRVINE V.
CALIFORNIA, 347 U.S. 128 (1954).  NEW MEXICO HAS REJECTED, AS IT MAY,
THE EXCLUSIONARY RULE SET FORTH IN WEEKS, SUPRA.  STATE V. DILLON, 34
N.M. 366, 281 P. 474 (1929).  THEREFORE, THE RIGHTS PETITIONER CLAIMS
AFFORD NO AID TO HIM HERE FOR THE FRUITS OF THE VIOLATIONS, IF ANY, ARE
ADMISSIBLE IN THE STATE'S PROSECUTION. 

PETITIONER'S REMAINING AND PRIMARY ASSAULT ON HIS CONVICTION IS NOT
SO EASILY UNHORSED.  HE URGES THAT THE CONDUCT OF THE STATE OFFICERS
HERE OFFENDS THAT "SENSE OF JUSTICE" OF WHICH WE SPOKE IN ROCHIN V.
CALIFORNIA, 342 U.S. 165 (1952).  IN THAT CASE STATE OFFICERS BROKE
INTO THE HOME OF THE ACCUSED AND OBSERVED HIM PLACE SOMETHING IN HIS
MOUTH.  THE OFFICERS FORCED OPEN HIS MOUTH AFTER CONSIDERABLE STRUGGLE
IN AN UNSUCCESSFUL ATTEMPT TO RETRIEVE WHATEVER WAS PUT THERE.  A
STOMACH PUMP WAS LATER FORCIBLY USED AND AMONG THE MATTER EXTRACTED
FROM HIS STOMACH WERE FOUND NARCOTIC PILLS.  AS WE SAID THERE, "THIS
COURSE OF PROCEEDING BY AGENTS OF GOVERNMENT TO OBTAIN EVIDENCE IS
BOUND TO OFFEND EVEN HARDENED SENSIBILITIES."  ID., AT 172.  WE SET
ASIDE THE CONVICTION BECAUSE SUCH CONDUCT "SHOCKED THE CONSCIENCE" AND
WAS SO "BRUTAL" AND "OFFENSIVE" THAT IT DID NOT COMPORT WITH
TRADITIONAL IDEAS OF FAIR PLAY AND DECENCY.  WE THERFORE FOUND THAT THE
CONDUCT WAS OFFENSIVE TO DUE PROCESS.  BUT WE SEE NOTHING COMPARABLE
HERE TO THE FACTS IN ROCHIN. 

BASICALLY THE DISTINCTION RESTS ON THE FACT THAT THERE IS NOTHING
"BRUTAL" OR "OFFENSIVE" IN THE TAKING OF A SAMPLE OF BLOOD WHEN DONE,
AS IN THIS CASE, UNDER THE PROTECTIVE EYE OF A PHYSICIAN.  TO BE SURE,
THE DRIVER HERE WAS UNCONSCIOUS WHEN THE BLOOD WAS TAKEN, BUT THE
ABSENCE OF CONSCIOUS CONSENT, WITHOUT MORE, DOES NOT NECESSARILY RENDER
THE TAKING A VIOLATION OF A CONSTITUTIONAL RIGHT; (FN2) AND CERTAINLY
THE TEST AS ADMINISTERED HERE WOULD NOT BE CONSIDERED OFFENSIVE BY EVEN
THE MOST DELICATE.  FURTHERMORE, DUE PROCESS IS NOT MEASURED BY THE
YARDSTICK OF PERSONAL REACTION OR THE SPHYGMOGRAM OF THE MOST SENSITIVE
PERSON, BUT BY THAT WHOLE COMMUNITY SENSE OF "DECENCY AND FAIRNESS"
THAT HAS BEEN WOVEN BY COMMON EXPERIENCE INTO THE FABRIC OF ACCEPTABLE
CONDUCT.  IT IS ON THIS BEDROCK THAT THIS COURT HAS ESTABLISHED THE
CONCEPT OF DUE PROCESS.  THE BLOOD TEST PROCEDURE HAS BECOME ROUTINE IN
OUR EVERYDAY LIFE.  IT IS A RITUAL FOR THOSE GOING INTO THE MILITARY
SERVICE AS WELL AS THOSE APPLYING FOR MARRIAGE LICENSES.  MANY COLLEGES
REQUIRE SUCH TESTS BEFORE PERMITTING ENTRANCE AND LITERALLY MILLIONS OF
US HAVE VOLUNTARILY GONE THROUGH THE SAME, THOUGH A LONGER, ROUTINE IN
BECOMING BLOOD DONORS.  LIKEWISE, WE NOTE THAT A MAJORITY OF OUR STATES
HAVE EITHER ENACTED STATUTES IN SOME FORM AUTHORIZING TESTS OF THIS
NATURE OR PERMIT FINDINGS SO OBTAINED TO BE ADMITTED IN EVIDENCE. 
(FN3)  WE THEREFORE CONCLUDE THAT A BLOOD TEST TAKEN BY A SKILLED
TECHNICIAN IS NOT SUCH "CONDUCT THAT SHOCKS THE CONSCIENCE," ROCHIN,
SUPRA, AT 172, NOR SUCH A METHOD OF OBTAINING EVIDENCE THAT IT OFFENDS
A "SENSE OF JUSTICE," BROWN V. MISSISSIPPI, 297 U.S. 278, 285-286
(1936).  (FN4)  THIS IS NOT TO SAY THAT THE INDISCRIMINATE TAKING OF
BLOOD UNDER DIFFERENT CONDITIONS OR BY THOSE NOT COMPETENT TO DO SO MAY
NOT AMOUNT TO SUCH "BRUTALITY" AS WOULD COME UNDER THE ROCHIN RULE. 
THE CHIEF LAW-ENFORCEMENT OFFICER OF NEW MEXICO, WHILE AT THE BAR OF
THIS COURT, ASSURED US THAT EVERY PROPER MEDICAL PRECAUTION IS AFFORDED
AN ACCUSED FROM WHOM BLOOD IS TAKEN.  (FN5) 

THE TEST UPHELD HERE IS NOT ATTACKED ON THE GROUND OF ANY BASIC
DEFICIENCY OR OF INJUDICIOUS APPLICATION, BUT ADMITTEDLY IS A
SCIENTIFICALLY ACCURATE METHOD OF DETECTING ALCOHOLIC CONTENT IN THE
BLOOD, THUS FURNISHING AN EXACT MEASURE UPON WHICH TO BASE A DECISION
AS TO INTOXICATION.  MODERN COMMUNITY LIVING REQUIRES MODERN SCIENTIFIC
METHODS OF CRIME DETECTION LEST THE PUBLIC GO UNPROTECTED.  THE
INCREASING SLAUGHTER ON OUR HIGHWAYS, MOST OF WHICH SHOULD BE
AVOIDABLE, NOW REACHES THE ASTOUNDING FIGURES ONLY HEARD OF ON THE
BATTLEFIELD.  (FN6)  THE STATES, THROUGH SAFETY MEASURES, MODERN
SCIENTIFIC METHODS, AND STRICT ENFORCEMENT OF TRAFFIC LAWS, ARE USING
ALL REASONABLE MEANS TO MAKE AUTOMOBILE DRIVING LESS DANGEROUS.  (FN7) 

AS AGAINST THE RIGHT OF AN INDIVIDUAL THAT HIS PERSON BE HELD
INVIOLABLE, EVEN AGAINST SO SLIGHT AN INTRUSION AS IN INVOLVED IN
APPLYING A BLOOD TEST OF THE KIND TO WHICH MILLIONS OF AMERICANS SUBMIT
AS A MATTER OF COURSE NEARLY EVERY DAY, MUST BE SET THE INTERESTS OF
SOCIETY IN THE SCIENTIFIC DETERMINATION OF INTOXICATION, ONE OF THE
GREAT CAUSES OF THE MORTAL HAZARDS OF THE ROAD.   AND THE MORE SO SINCE
THE TEST LIKEWISE MAY ESTABLISH INNOCENCE, THUS AFFORDING PROTECTION
AGAINST THE TREACHERY OF JUDGMENT BASED ON ONE OR MORE OF THE SENSES. 
FURTHERMORE, SINCE OUR CRIMINAL LAW IS TO NO SMALL EXTENT JUSTIFIED BY
THE ASSUMPTION OF DETERRENCE, THE INDIVIDUAL'S RIGHT TO IMMUNITY FROM
SUCH INVASION OF THE BODY AS IS INVOLVED IN A PROPERLY SAFEGUARDED
BLOOD TEST IS FAR OUTWEIGHED BY THE VALUE OF ITS DETERRENT EFFECT DUE
TO PUBLIC REALIZATION THAT THE ISSUE OF DRIVING WHILE UNDER THE
INFLUENCE OF ALCOHOL CAN OFTEN BY THIS METHOD BE TAKEN OUT OF THE
CONFUSION OF CONFLICTING CONTENTIONS. 

FOR THESE REASONS THE JUDGMENT IS AFFIRMED. 

FN1  PETITIONER SOUGHT AND WAS DENIED A WRIT OF HABEAS CORPUS FROM
THE DISTRICT COURT FOR SANTA FE COUNTY, NEW MEXICO, ON MARCH 7, 1952. 

FN2  IT MIGHT BE A FAIR ASSUMPTION THAT A DRIVER ON THE HIGHWAYS, IN
OBEDIENCE TO A POLICY OF THE STATE, WOULD CONSENT TO HAVE A BLOOD TEST
MADE AS A PART OF A SENSIBLE AND CIVILIZED SYSTEM PROTECTING HIMSELF AS
WELL AS OTHER CITIZENS NOT ONLY FROM THE HAZARDS OF THE ROAD DUE TO
DRUNKEN DRIVING, BUT ALSO FROM SOME USE OF DUBIOUS LAY TESTIMONY.  IN
FACT, THE STATE OF KANSAS HAS BY STATUTE DECLARED THAT ANY PERSON WHO
OPERATES A MOTOR VEHICLE ON THE PUBLIC HIGHWAYS OF THAT STATE SHALL BE
DEEMED TO HAVE GIVEN HIS CONSENT TO SUBMIT TO A CHEMICAL TEST OF HIS
BREATH, BLOOD, URINE, OR SALIVA FOR THE PURPOSE OF DETERMINING THE
ALCOHOLIC CONTENT OF HIS BLOOD.  IF, AFTER ARREST FOR OPERATION OF A
MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR, THE
ARRESTING OFFICER HAS REASONABLE GROUNDS FOR THE ARREST, AND THE DRIVER
REFUSES TO SUBMIT TO THE TEST, THE ARRESTING OFFICER MUST REPORT THIS
FACT TO THE PROPER OFFICIAL WHO SHALL SUSPEND THE OPERATOR'S PERMIT. 
KAN. GEN. STAT., 1949 (SUPP.  1955), SEC. 8-1001 THROUGH SEC. 8-1007. 

FN3  FORTY-SEVEN STATES USE CHEMICAL TESTS, INCLUDING BLOOD TESTS, TO
AID IN THE DETERMINATION OF INTOXICATION IN CASES INVOLVING CHARGES OF
DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL.  TWENTY-THREE OF THESE
STATES SANCTION THE USE OF THE TESTS BY STATUTE.  THESE, FOR THE MOST
PART, ARE PATTERNED AFTER SEC. 11-902 OF THE UNIFORM VEHICLE CODE
PREPARED BY THE NATIONAL COMMITTEE ON UNIFORM TRAFFIC LAWS AND
ORDINANCES.  THIS SECTION MAKES IT UNLAWFUL TO OPERATE A MOTOR VEHICLE
WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR.  THE FINDING OF THE
PRESENCE OF A CERTAIN PERCENTAGE OF ALCOHOL, BY WEIGHT, IN THE BLOOD OF
A PERSON GIVES RISE TO A PRESUMPTION THAT HE WAS UNDER THE INFLUENCE OF
INTOXICATING LIQUOR.  THE TWENTY-THREE STATE STATUTORY PROVISIONS
INCLUDE: ARIZ. REV. STAT. ANN., 1956, SEC. 28-692; DEL. CODE ANN., 1953
(CUM. SUPP. 1956), TIT. 11, SEC. 3507; GA. CODE ANN., 1937 (CUM. SUPP.
1955), SEC. 68-1625; IDAHO CODE, 1948 (CUM. SUPP. 1955), SEC. 49-520.2;
BURNS' IND. STAT. ANN., 1952 (CUM. SUPP.  1955), SEC. 47-2003; KAN.
GEN. STAT., 1949 (SUPP. 1955), SEC. 8-1001 THROUGH SEC. 8-1007; KY.
REV. STAT. ANN., 1955, SEC. 189.520; ME. REV. STAT., 1954, C. 22, SEC.
150; MINN. STAT.  ANN., 1945 (CUM. SUPP. 1956), SEC. 169.12; NEB. REV.
STAT., 1943 (REISSUE OF 1952), SEC. 39-727.01; N.H. REV. STAT. ANN.,
1955, SEC. 262:20; N.J. STAT. ANN., 1937 (CUM. SUPP. 1955), SEC. 39:4
50.1; MCKINNEY'S N.Y. LAWS, VEH.  AND TRAFFIC LAW, SEC. 70(5); N.D.
LAWS 1953, C. 247; ORE.  REV.  STAT., 1955, SEC. 483.630; S.C. CODE,
1952, SEC. 46-344; S.D. CODE, 1939 (SUPP. 1952), SEC. 44.0302-1; TENN.
CODE ANN., 1955, SEC. 59-1032 TO SEC. 59-1033; UTAH CODE ANN., 1953,
SEC. 41-6-44; VA. CODE, 1950 (SUPP. 1956), SEC. 18-75.1 TO SEC. 18
75.3; WASH. REV. CODE, 1951, SEC. 46.56.010; WIS. LAWS 1955, C. 510;
WYO. COMP. STAT., 1945 (CUM. SUPP. 1955), SEC. 60-414.  OTHER STATES
HAVE ACCEPTED THE USE OF CHEMICAL TESTS FOR INTOXICATION WITHOUT
STATUTORY AUTHORITY BUT WITH COURT APPROVAL.  SEE, E.G., PEOPLE V.
HAEUSSLER, 41 CAL. 2D 252, 260 P.2D 8 (1953)(BLOOD); BLOCK V. PEOPLE,
125 COLO. 36, 240 P.2D 512 (1951)(BLOOD); TOUCHTON V. FLORIDA, 154 FLA.
547, 18 SO. 2D 752 (1944)(BLOOD); ILLINOIS V. BOBCZYK, 343 ILL. APP.
504, 99 N.E.2D 567 (1951) (BREATH); IOWA V. HANER, 231 IOWA 348, 1
N.W.2D 91 (1941)(BLOOD); BREITHAUPT V. ABRAM, 58 N.M. 385, 271 P.2D 827
(1954)(BLOOD); BOWDEN V. STATE, 95 OKLA. CR. 382, 246 P.2D 427
(1952)(BLOOD AND URINE); MCKAY V. STATE, 155 TEX. CR. R. 416, 235
S.W.2D 173 (1950)(BREATH).  STILL OTHER STATES ACCEPT THE PRACTICE OF
THE USE OF CHEMICAL TEST FOR INTOXICATION THOUGH THERE DOES NOT APPEAR
TO HAVE BEEN LITIGATION ON THE PROBLEM.  SEE THE SUMMARY IN A REPORT OF
THE COMMITTEE ON TESTS FOR INTOXICATION OF THE NATIONAL SAFETY COUNCIL,
1955 USES OF CHEMICAL TESTS FOR INTOXICATION. 

THE FACT THAT SO MANY STATES MAKE USE OF THE TESTS NEGATIVES THE
SUGGESTION THAT THERE IS ANYTHING OFFENSIVE ABOUT THEM.  FOR ADDITIONAL
DISCUSSION OF THE USE OF THESE BLOOD TESTS SEE INBAU, SELF
INCRIMINATION (1950), 72-86. 

FN4  SEVERAL STATES HAVE CONSIDERED THE VERY PROBLEM HERE PRESENTED
BUT NONE HAVE FOUND THAT THE CONDUCT OF THE STATE AUTHORITIES WAS SO
OFFENSIVE AS TO NECESSITATE REVERSAL OF CONVICTIONS BASED IN PART ON
BLOOD TESTS.  PEOPLE V. DURONCELAY, 146 A. CAL. APP. 96, 303 P.2D 617
(1956); BLOCK V. PEOPLE, 125 COLO. 36, 240 P.2D 512 (1951); STATE V.
AYRES, 70 IDAHO 18, 211 P.2D 142 (1949)(TEST RESULTS WERE FAVORABLE TO
ACCUSED); STATE V. CRAM, 176 ORE.  577, 160 P.2D 283 (1945).  SEE ALSO
STATE V. STURTEVANT, 96 N.H. 99, 70 A.2D 909 (1950); CF. UNITED STATES
V. WILLIAMSON, 4 U.S.C.M.A. 320, 15 C.M.R. 320 (1954).  BUT SEE IOWA V.
WELTHA, 228 IOWA 519, 292 N.W. 148 (1940); WISCONSIN V. KROENING, 274
WIS. 266, 79 N.W.2D 810 (1956).  BUT CF.  UNITED STATES V. JORDAN, 7
U.S.C.M.A. 452, 22 C.M.R. 242 (1957).    THE WITHDRAWAL OF BLOOD FOR
USE IN BLOOD-GROUPING TESTS IN STATE CRIMINAL PROSECUTIONS IS
WIDESPREAD.  SEE, E.G., MARYLAND V. DAVIS, 189 MD. 640, 57 A.2D 289
(1948); NEW JERSEY V. ALEXANDER, 7 N.J. 585, 83 A.2D 441 (1951);
COMMONWEALTH V. STATTI, 166 PA. SUPER.  577, 73 A.2D 688 (1950). 

MANY STATES AUTHORIZE BLOOD TESTS IN CIVIL ACTIONS SUCH AS PATERNITY
PROCEEDINGS.  SEE, E.G., THE DISCUSSION IN CORTESE V. CORTESE, 10 N.J.
SUPER.  152, 76 A.2D 717 (1950).  OTHER STATES AUTHORIZE SUCH TESTS IN
BASTARDY PROCEEDINGS.  SEE, E.G., JORDAN V. DAVIS, 143 ME. 185, 57 A.2D
209 (1948); STATE EX REL. VAN CAMP V. WELLING, 6 OHIO OP. 371, 3 OHIO
SUPP. 333 (1936).  FOR A GENERAL DISCUSSION OF BLOOD TESTS IN PATERNITY
PROCEEDINGS SEE SCHATKIN, DISPUTED PATERNITY PROCEEDINGS (3D ED. 1953),
193-282. 

FN5  IN EXPLANATION, HE ADVISED THAT BY REGULATION THE STATE POLICE
ARE PERMITTED TO OBTAIN BLOOD FOR ANALYSIS ONLY WHEN THE BLOOD IS
WITHDRAWN BY A PHYSICIAN.  HE FURTHER ADVISED THAT IT IS THE CUSTOMARY
ADMINISTRATIVE PRACTICE AMONG MUNICIPALITIES TO ALLOW BLOOD TO BE TAKEN
ONLY BY A DOCTOR.  IN ALL CASES A COMPETENT TECHNICIAN IS REQUIRED TO
MAKE THE LABORATORY ANALYSIS INCIDENT TO THE TEST.  WE WERE ASSURED
THAT IN NO INSTANCE HAD A MUNICIPALITY OR THE STATE POLICE PERMITTED
THE TEST TO BE MADE WITHOUT THESE PRECAUTIONS. 

FN6  NATIONAL SAFETY COUNCIL, ACCIDENT FACTS 1956, 43-71. 

FN7  GOVERNORS' CONFERENCE COMMITTEE, REPORT ON HIGHWAY SAFETY (NOV.
1956); NATIONAL COMMITTEE ON UNIFORM TRAFFIC LAWS AND ORDINANCES,
UNIFORM VEHICLE CODE (REV. 1956); WHITE HOUSE CONFERENCE ON HIGHWAY
SAFETY, ORGANIZE YOUR COMMUNITY FOR TRAFFIC SAFETY (1954). 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

THE JUDGMENT IN THIS CASE SHOULD BE REVERSED IF ROCHIN V. CALIFORNIA,
342 U.S. 165, IS TO RETAIN ITS VITALITY AND STAND AS MORE THAN AN
INSTANCE OF PERSONAL REVULSION AGAINST PARTICULAR POLICE METHODS.  I
CANNOT AGREE WITH THE COURT WHEN IT SAYS, "WE SEE NOTHING COMPARABLE
HERE TO THE FACTS IN ROCHIN."  IT SEEMS TO ME THE ESSENTIAL ELEMENTS OF
THE CASES ARE THE SAME AND THE SAME RESULT SHOULD FOLLOW. 

THERE IS MUCH IN THE COURT'S OPINION CONCERNING THE HAZARDS ON OUR
NATION'S HIGHWAYS, THE EFFORTS OF THE STATES TO ENFORCE THE TRAFFIC
LAWS AND THE NECESSITY FOR THE USE OF MODERN SCIENTIFIC METHODS IN THE
DETECTION OF CRIME.  EVERYBODY CAN AGREE WITH THESE SENTIMENTS, AND YET
THEY DO NOT HELP US PARTICULARLY IN DETERMINING WHETHER THIS CASE CAN
BE DISTINGUISHED FROM ROCHIN.  THAT CASE GREW OUT OF POLICE EFFORTS TO
CURB THE NARCOTICS TRAFFIC, IN WHICH THERE IS SURELY A STATE INTEREST
OF AT LEAST AS GREAT MAGNITUDE AS THE INTEREST IN HIGHWAY LAW
ENFORCEMENT.  NOR DOES THE FACT THAT MANY STATES SANCTION THE USE OF
BLOOD TEST EVIDENCE DIFFERENTIATE THE CASES.  AT THE TIME ROCHIN WAS
DECIDED ILLEGALLY OBTAINED EVIDENCE WAS ADMISSIBLE IN THE VAST MAJORITY
OF STATES.  IN BOTH ROCHIN AND THIS CASE THE OFFICERS HAD PROBABLE
CAUSE TO SUSPECT THE DEFENDANT OF THE OFFENSE OF WHICH THEY SOUGHT
EVIDENCE.  IN ROCHIN THE DEFENDANT WAS KNOWN AS A NARCOTICS LAW
VIOLATOR, WAS ARRESTED UNDER SUSPICIOUS CIRCUMSTANCES AND WAS SEEN BY
THE OFFICERS TO SWALLOW NARCOTICS.  IN NEITHER CASE, OF COURSE, ARE WE
CONCERNED WITH THE DEFENDANT'S GUILT OR INNOCENCE.  THE SOLE PROBLEM IS
WHETHER THE PROCEEDING WAS TAINTED BY A VIOLATION OF THE DEFENDANT'S
CONSTITUTIONAL RIGHTS. 

IN REACHING ITS CONCLUSION THAT IN THIS CASE, UNLIKE ROCHIN, THERE IS
NOTHING "BRUTAL" OR "OFFENSIVE" THE COURT HAS NOT KEPT SEPARATE THE
COMPONENT PARTS OF THE PROBLEM.  ESSENTIALLY THERE ARE TWO:  THE
CHARACTER OF THE INVASION OF THE BODY AND THE EXPRESSION OF THE
VICTIM'S WILL; THE LATTER MAY BE MANIFESTED BY PHYSICAL RESISTANCE.  OF
COURSE, ONE MAY CONSENT TO HAVING HIS BLOOD EXTRACTED OR HIS STOMACH
PUMPED AND THEREBY WAIVE ANY DUE PROCESS OBJECTION.  IN THAT LIMITED
SENSE THE EXPRESSION OF THE WILL IS SIGNIFICANT.  BUT WHERE THERE IS NO
AFFIRMATIVE CONSENT, I CANNOT SEE THAT IT SHOULD MAKE ANY DIFFERENCE
WHETHER ONE STATES UNEQUIVOCALLY THAT HE OBJECTS OR RESORTS TO PHYSICAL
VIOLENCE IN PROTEST OR IS IN SUCH CONDITION THAT HE IS UNABLE TO
PROTEST.  THE COURT, HOWEVER, STATES THAT "THE ABSENCE OF CONSCIOUS
CONSENT, WITHOUT MORE, DOES NOT NECESSARILY RENDER THE TAKING A
VIOLATION OF A CONSTITUTIONAL RIGHT."  THIS IMPLIES THAT A DIFFERENT
RESULT MIGHT FOLLOW IF PETITIONER HAD BEEN CONSCIOUS AND HAD VOICED HIS
OBJECTION.  I REJECT THE DISTINCTION. 

SINCE THERE CLEARLY WAS NO CONSENT TO THE BLOOD TEST, IT IS THE
NATURE OF THE INVASION OF THE BODY THAT SHOULD BE DETERMINATIVE OF THE
DUE PROCESS QUESTION HERE PRESENTED.  THE COURT'S OPINION SUGGESTS THAT
AN INVASION IS "BRUTAL" OR "OFFENSIVE" ONLY IF THE POLICE USE FORCE TO
OVERCOME A SUSPECT'S RESISTANCE.  BY ITS RECITAL OF THE FACTS IN ROCHIN
- THE REFERENCES TO A "CONSIDERABLE STRUGGLE" AND THE FACT THAT THE
STOMACH PUMP WAS "FORCIBLY USED"* - THE COURT FINDS ROCHIN
DISTINGUISHABLE FROM THIS CASE.  I CANNOT ACCEPT AN ANALYSIS THAT WOULD
MAKE PHYSICAL RESISTANCE BY A PRISONER A PREREQUISITE TO THE EXISTENCE
OF HIS CONSTITUTIONAL RIGHTS. 

*ACTUALLY, THE STRUGGLE IN ROCHIN OCCURRED IN THE DEFENDANT'S HOME
AFTER THE OFFICERS HAD BROKEN IN.  HE WAS ARRESTED AND TAKEN TO A
HOSPITAL, AND THERE WAS NO EVIDENCE THAT HE STRUGGLED THERE. 

APART FROM THE IRRELEVANT FACTOR OF PHYSICAL RESISTANCE, THE
TECHNIQUES USED IN THIS CASE AND IN ROCHIN ARE COMPARABLE.  IN EACH THE
OPERATION WAS PERFORMED BY A DOCTOR IN A HOSPITAL.  IN EACH THERE WAS
AN EXTRACTION OF BODY FLUIDS.  NEITHER OPERATION NORMALLY CAUSES ANY
LASTING ILL EFFECTS.  THE COURT DENOMINATES A BLOOD TEST AS A
SCIENTIFIC METHOD FOR DETECTING CRIME AND CITES THE FREQUENCY OF SUCH
TESTS IN OUR EVERYDAY LIFE.  THE STOMACH PUMP TOO IS A COMMON AND
ACCEPTED WAY OF MAKING TESTS AND RELIEVING DISTRESS.  BUT IT DOES NOT
FOLLOW FROM THE FACT THAT A TECHNIQUE IS A PRODUCT OF SCIENCE OR IS IN
COMMON, CONSENSUAL USE FOR OTHER PURPOSES THAT IT CAN BE USED TO
EXTRACT EVIDENCE FROM A CRIMINAL DEFENDANT WITHOUT HIS CONSENT.  WOULD
THE TAKING OF SPINAL FLUID FROM AN UNCONSCIOUS PERSON BE CONDONED
BECAUSE SUCH TESTS ARE COMMONLY MADE AND MIGHT BE USED AS A SCIENTIFIC
AID TO LAW ENFORCEMENT? 

ONLY PERSONAL REACTION TO THE STOMACH PUMP AND THE BLOOD TEST CAN
DISTINGUISH THEM.  TO BASE THE RESTRICTION WHICH THE DUE PROCESS CLAUSE
IMPOSES ON STATE CRIMINAL PROCEDURES UPON SUCH REACTIONS IS TO BUILD ON
SHIFTING SANDS.  WE SHOULD, IN MY OPINION, HOLD THAT DUE PROCESS MEANS
AT LEAST THAT LAW-ENFORCEMENT OFFICERS IN THEIR EFFORTS TO OBTAIN
EVIDENCE FROM PERSONS SUSPECTED OF CRIME MUST STOP SHORT OF BRUISING
THE BODY, BREAKING SKIN, PUNCTURING TISSUE OR EXTRACTING BODY FLUIDS,
WHETHER THEY CONTEMPLATE DOING IT BY FORCE OR BY STEALTH. 

VIEWED ACCORDING TO THIS STANDARD, THE JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

THE COURT SEEMS TO SANCTION IN THE NAME OF LAW ENFORCEMENT THE
ASSAULT MADE BY THE POLICE ON THIS UNCONSCIOUS MAN.  IF LAW ENFORCEMENT
WERE THE CHIEF VALUE IN OUR CONSTITUTIONAL SCHEME, THEN DUE PROCESS
WOULD SHRIVEL AND BECOME OF LITTLE VALUE IN PROTECTING THE RIGHTS OF
THE CITIZEN.  BUT THOSE WHO FASHIONED THE CONSTITUTION PUT CERTAIN
RIGHTS OUT OF THE REACH OF THE POLICE AND PREFERRED OTHER RIGHTS OVER
LAW ENFORCEMENT. 

ONE SOURCE OF PROTECTION OF THE CITIZEN AGAINST STATE ACTION IS THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  OUR DECISIONS HOLD
THAT THE POLICE VIOLATE DUE PROCESS WHEN THEY USE BRUTAL METHODS TO
OBTAIN EVIDENCE AGAINST A MAN AND USE IT TO CONVICT HIM.  ROCHIN V.
CALIFORNIA, 342 U.S. 165; CHAMBERS V. FLORIDA, 309 U.S. 227.  BUT THE
CONCEPTION OF DUE PROCESS IS NOT LIMITED TO A PROHIBITION OF THE USE OF
FORCE AND VIOLENCE AGAINST AN ACCUSED.  IN LEYRA V. DENNO, 347 U.S.
556, WE SET ASIDE A CONVICTION WHERE SUBTLE, NONVIOLENT METHODS HAD
BEEN USED TO EXACT A CONFESSION FROM A PRISONER.  FOR IT WAS OBVIOUS
THAT COERCION MIGHT BE THE PRODUCT OF SUBTLETY AS WELL AS OF VIOLENCE. 
WE SHOULD TAKE THE SAME LIBERTARIAN APPROACH HERE. 

AS I UNDERSTAND TODAY'S DECISION THERE WOULD BE A VIOLATION OF DUE
PROCESS IF THE BLOOD HAD BEEN WITHDRAWN FROM THE ACCUSED AFTER A
STRUGGLE WITH THE POLICE.  BUT THE SANCTITY OF THE PERSON IS EQUALLY
VIOLATED AND HIS BODY ASSAULTED WHERE THE PRISONER IS INCAPABLE OF
OFFERING RESISTANCE AS IT WOULD BE IF FORCE WERE USED TO OVERCOME HIS
RESISTANCE.  IN BOTH CASES EVIDENCE IS USED TO CONVICT A MAN WHICH HAS
BEEN OBTAINED FROM HIM ON AN INVOLUNTARY BASIS.  I WOULD NOT DRAW A
LINE BETWEEN THE USE OF FORCE ON THE ONE HAND AND TRICKERY, SUBTERFUGE,
OR ANY POLICE TECHNIQUE WHICH TAKES ADVANTAGE OF THE INABILITY OF THE
PRISONER TO RESIST ON THE OTHER.  NOR WOULD I DRAW A LINE BETWEEN
INVOLUNTARY EXTRACTION OF WORDS FROM HIS LIPS, THE INVOLUNTARY
EXTRACTION OF THE CONTENTS OF HIS STOMACH, AND THE INVOLUNTARY
EXTRACTION OF FLUIDS OF HIS BODY WHEN THE EVIDENCE OBTAINED IS USED TO
CONVICT HIM.  UNDER OUR SYSTEM OF GOVERNMENT, POLICE CANNOT COMPEL
PEOPLE TO FURNISH THE EVIDENCE NECESSARY TO SEND THEM TO PRISON.  YET
THERE IS COMPULSION HERE, FOLLOWING THE VIOLATION BY THE POLICE OF THE
SANCTITY OF THE BODY OF AN UNCONSCIOUS MAN. 

AND IF THE DECENCIES OF A CIVILIZED STATE ARE THE TEST, IT IS
REPULSIVE TO ME FOR THE POLICE TO INSERT NEEDLES INTO AN UNCONSCIOUS
PERSON IN ORDER TO GET THE EVIDENCE NECESSARY TO CONVICT HIM, WHETHER
THEY FIND THE PERSON UNCONSCIOUS, GIVE HIM A PILL WHICH PUTS HIM TO
SLEEP, OR USE FORCE TO SUBDUE HIM.  THE INDIGNITY TO THE INDIVIDUAL IS
THE SAME IN ONE CASE AS IN THE OTHER, FOR IN EACH IS HIS BODY INVADED
AND ASSAULTED BY THE POLICE WHO ARE SUPPOSED TO BE THE CITIZEN'S
PROTECTOR. 

I WOULD REVERSE THIS JUDGMENT OF CONVICTION. 
..END :






RADOVICH V. NATIONAL FOOTBALL LEAGUE 352 U.S. 445 


NO. 94.  ARGUED JANUARY 17, 1957 - DECIDED FEBRUARY 25, 1957 - 231 F.2D
620, REVERSED. 


ALLEGING THAT RESPONDENTS CONSPIRED TO MONOPOLIZE AND CONTROL
PROFESSIONAL FOOTBALL IN VIOLATION OF THE SHERMAN ACT, PETITIONER SUED
THEM UNDER SEC. 4 OF THE CLAYTON ACT FOR TREBLE DAMAGES AND INJUNCTIVE
RELIEF.  HE ALLEGED, INTER ALIA, THAT RESPONDENTS SCHEDULE FOOTBALL
GAMES IN VARIOUS CITIES, INCLUDING NEW YORK, CHICAGO, PHILADELPHIA AND
LOS ANGELES; THAT A PART OF THE BUSINESS FROM WHICH THEY DERIVE A
SIGNIFICANT PORTION OF THEIR GROSS RECEIPTS IS THE TRANSMISSION OF THE
GAMES OVER RADIO AND TELEVISION INTO NEARLY EVERY STATE OF THE UNION;
THAT A PART OF THE CONSPIRACY WAS TO DESTROY A COMPETITIVE LEAGUE BY
BOYCOTTING IT AND ITS PLAYERS; THAT EACH TEAM USES A STANDARD PLAYER
CONTRACT WHICH PROHIBITS A PLAYER FROM SIGNING WITH ANOTHER CLUB
WITHOUT THE CONSENT OF THE CLUB HOLDING HIS CONTRACT; THAT THESE
CONTRACTS ARE ENFORCED BY AGREEMENT OF THE CLUBS TO BLACK-LIST ANY
PLAYER VIOLATING THEM AND TO VISIT SEVERE PENALTIES ON RECALCITRANT
MEMBER CLUBS; THAT, BY BLACK-LISTING PETITIONER, THEY PREVENTED HIM
FROM BECOMING A PLAYER-COACH IN AN AFFILIATED LEAGUE AND EFFECTIVELY
PREVENTED HIS EMPLOYMENT IN ORGANIZED PROFESSIONAL FOOTBALL IN THE
UNITED STATES; AND THAT THIS DAMAGED HIM IN THE SUM OF $35,000.  HELD: 

1.  THE RULE ESTABLISHED IN FEDERAL BASEBALL CLUB V. NATIONAL LEAGUE,
259 U.S. 200, AND TOOLSON V. NEW YORK YANKEES, 346 U.S. 356, IS
SPECIFICALLY LIMITED TO THE BUSINESS OF ORGANIZED PROFESSIONAL BASEBALL
AND DOES NOT CONTROL THIS CASE.  PP. 449-452. 

(A)  AS LONG AS CONGRESS CONTINUES TO ACQUIESCE, THIS COURT SHOULD
ADHERE TO - BUT NOT EXTEND - THE INTERPRETATION OF THE ACT MADE IN
THOSE CASES.  P. 451. 

(B)  IF THERE BE ERROR OR DISCRIMINATION IN THESE RULINGS, THE
ORDERLY WAY TO ELIMINATE IT IS BY LEGISLATION AND NOT BY COURT
DECISION.  P. 452. 

2.  THE VOLUME OF INTERSTATE BUSINESS INVOLVED IN ORGANIZED
PROFESSIONAL FOOTBALL PLACES IT WITHIN THE PROVISIONS OF THE ANTITRUST
ACTS.  P. 452. 

3. THE COMPLAINT STATES A CAUSE OF ACTION, AND PETITIONER IS ENTITLED
TO AN OPPORTUNITY TO PROVE HIS CHARGES.  PP. 446-449, 453-454. 

RADOVICH V. NATIONAL FOOTBALL LEAGUE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS ACTION FOR TREBLE DAMAGES AND INJUNCTIVE RELIEF, BROUGHT UNDER
SEC. 4 OF THE CLAYTON ACT, (FN1) TESTS THE APPLICATION OF THE ANTITRUST
LAWS TO THE BUSINESS OF PROFESSIONAL FOOTBALL.  PETITIONER RADOVICH, AN
ALL-PRO GUARD FORMERLY WITH THE DETROIT LIONS, CONTENDS THAT THE
RESPONDENTS (FN2) ENTERED INTO A CONSPIRACY TO MONOPOLIZE AND CONTROL
ORGANIZED PROFESSIONAL FOOTBALL IN THE UNITED STATES, IN VIOLATION OF
SECS. 1 AND 2 OF THE SHERMAN ACT; (FN3) THAT PART OF THE CONSPIRACY WAS
TO DESTROY THE ALL-AMERICAN CONFERENCE, A COMPETITIVE PROFESSIONAL
FOOTBALL LEAGUE IN WHICH RADOVICH ONCE PLAYED; AND THAT PURSUANT TO
AGREEMENT, RESPONDENTS BOYCOTTED RADOVICH AND PREVENTED HIM FROM
BECOMING A PLAYER-COACH IN THE PACIFIC COAST LEAGUE.  PETITIONER
ALLEGES THAT RESPONDENTS' ILLEGAL CONDUCT DAMAGED HIM IN THE SUM OF
$35,000, TO BE TREBLED AS PROVIDED BY THE ACT.  THE TRIAL COURT, ON
RESPONDENTS' MOTION, DISMISSED THE CAUSE FOR LACK OF JURISDICTION AND
FAILURE TO STATE A CLAIM ON WHICH RELIEF COULD BE GRANTED.  THE COURT
OF APPEALS AFFIRMED, 231 F.2D 620, ON THE BASIS OF FEDERAL BASEBALL
CLUB V. NATIONAL LEAGUE, 259 U.S. 200 (1922), AND TOOLSON V. NEW YORK
YANKEES, INC., 346 U.S. 356 (1953), APPLYING THE BASEBALL RULE TO ALL
"TEAM SPORTS."  IT FURTHER FOUND THAT EVEN IF SUCH APPLICATION WAS
ERRONEOUS AND THAT UNITED STATES V. INTERNATIONAL BOXING CLUB, 348 U.S.
236 (1955), APPLIED, RADOVICH HAD NOT GROUNDED HIS CLAIM ON CONDUCT OF
RESPONDENTS WHICH WAS "CALCULATED TO PREJUDICE THE PUBLIC OR
UNREASONABLY RESTRAIN INTERSTATE COMMERCE."  231 F.2D, AT 623.  WE
GRANTED CERTIORARI, 352 U.S. 818, IN ORDER TO CLARIFY THE APPLICATION
OF THE TOOLSON DOCTRINE AND DETERMINE WHETHER THE BUSINESS OF FOOTBALL
COMES WITHIN THE SCOPE OF THE SHERMAN ACT.  FOR THE REASONS HEREAFTER
STATED WE CONCLUDE THAT TOOLSON AND FEDERAL BASEBALL DO NOT CONTROL;
THAT THE RESPONDENTS' ACTIVITIES AS ALLEGED ARE WITHIN THE COVERAGE OF
THE ANTITRUST LAWS; AND THAT THE COMPLAINT STATES A CAUSE OF ACTION
THEREUNDER. 

                         I. 

SINCE THE COMPLAINT WAS DISMISSED ITS ALLEGATIONS MUST BE TAKEN BY US
AS TRUE.  IT IS, THEREFORE, IMPORTANT FOR US TO CONSIDER WHAT RADOVICH
ALLEGED.  CONCISELY THE COMPLAINT STATES THAT: 

1.  RADOVICH BEGAN HIS PROFESSIONAL FOOTBALL CAREER IN 1938 WHEN HE
SIGNED WITH THE DETROIT LIONS, A NATIONAL LEAGUE CLUB.  AFTER FOUR
SEASONS OF PLAY HE ENTERED THE NAVY, RETURNING TO THE LIONS FOR THE
1945 SEASON.  IN 1946 HE ASKED FOR A TRANSFER TO A NATIONAL LEAGUE CLUB
IN LOS ANGELES BECAUSE OF THE ILLNESS OF HIS FATHER.  THE LIONS REFUSED
THE TRANSFER AND RADOVICH BROKE HIS PLAYER CONTRACT BY SIGNING WITH AND
PLAYING THE 1946 AND 1947 SEASONS FOR THE LOS ANGELES DONS, A MEMBER OF
THE ALL-AMERICAN CONFERENCE.  (FN4)  IN 1948 THE SAN FRANCISCO
CLIPPERS, A MEMBER OF THE PACIFIC COAST LEAGUE WHICH WAS AFFILIATED
WITH BUT NOT A COMPETITOR OF THE NATIONAL LEAGUE, OFFERED TO EMPLOY
RADOVICH AS A PLAYER-COACH.  HOWEVER, THE NATIONAL LEAGUE ADVISED THAT
RADOVICH WAS BLACK-LISTED AND ANY AFFILIATED CLUB SIGNING HIM WOULD
SUFFER SEVERE PENALTIES.  THE CLIPPERS THEN REFUSED TO SIGN HIM IN ANY
POSITION.  THIS BLACK-LISTING EFFECTIVELY PREVENTED HIS EMPLOYMENT IN
ORGANIZED PROFESSIONAL FOOTBALL IN THE UNITED STATES. 

2.  THE BLACK-LISTING WAS THE RESULT OF A CONSPIRACY AMONG THE
RESPONDENTS TO MONOPOLIZE COMMERCE IN PROFESSIONAL FOOTBALL AMONG THE
STATES.  THE PURPOSE OF THE CONSPIRACY WAS TO "CONTROL, REGULATE AND
DICTATE THE TERMS UPON WHICH ORGANIZED PROFESSIONAL FOOTBALL SHALL BE
PLAYED THROUGHOUT THE UNITED STATES" IN VIOLATION OF SECS. 1 AND 2 OF
THE SHERMAN ACT.  IT WAS PART OF THE CONSPIRACY TO BOYCOTT THE ALL
AMERICAN CONFERENCE AND ITS PLAYERS WITH A VIEW TO ITS DESTRUCTION AND
THUS STRENGTHEN THE MONOPOLISTIC POSITION OF THE NATIONAL FOOTBALL
LEAGUE. 

3.  AS PART OF ITS FOOTBALL BUSINESS, THE RESPONDENT LEAGUE AND ITS
MEMBER TEAMS SCHEDULE FOOTBALL GAMES IN VARIOUS METROPOLITAN CENTERS,
INCLUDING NEW YORK, CHICAGO, PHILADELPHIA, AND LOS ANGELES.  EACH TEAM
USES A STANDARD PLAYER CONTRACT WHICH PROHIBITS A PLAYER FROM SIGNING
WITH ANOTHER CLUB WITHOUT THE CONSENT OF THE CLUB HOLDING THE PLAYER'S
CONTRACT.  THESE CONTRACTS ARE ENFORCED BY AGREEMENT OF THE CLUBS TO
BLACK-LIST ANY PLAYER VIOLATING THEM AND TO VISIT SEVERE PENALTIES ON
RECALCITRANT MEMBER CLUBS.  AS A FURTHER "PART OF THE BUSINESS OF
PROFESSIONAL FOOTBALL ITSELF" AND "DIRECTLY TIED IN AND CONNECTED" WITH
ITS FOOTBALL EXHIBITIONS IS THE TRANSMISSION OF THE GAMES OVER RADIO
AND TELEVISION INTO NEARLY EVERY STATE OF THE UNION.  THIS IS
ACCOMPLISHED BY CONTRACTS WHICH PRODUCE A "SIGNIFICANT PORTION OF THE
GROSS RECEIPTS" AND WITHOUT WHICH "THE BUSINESS OF OPERATING A
PROFESSIONAL FOOTBALL CLUB WOULD NOT BE PROFITABLE."  THE PLAYING OF
THE EXHIBITIONS THEMSELVES "IS ESSENTIAL TO THE INTERSTATE TRANSMISSION
BY BROADCASTING AND TELEVISION" AND THE ACTIONS OF THE RESPONDENTS
AGAINST RADOVICH WERE NECESSARILY RELATED TO THESE INTERSTATE
ACTIVITIES. 

IN THE LIGHT OF THESE ALLEGATIONS RESPONDENTS RAISE TWO ISSUES:  THEY
SAY THE BUSINESS OF ORGANIZED PROFESSIONAL FOOTBALL WAS NOT INTENDED BY
CONGRESS TO BE INCLUDED WITHIN THE SCOPE OF THE ANTITRUST LAWS; AND, IF
WRONG IN THIS CONTENTION, THAT THE COMPLAINT DOES NOT STATE A CAUSE OF
ACTION UPON WHICH RELIEF CAN BE GRANTED. 

                    II. 

RESPONDENTS' CONTENTION, BOILED DOWN, IS THAT AGREEMENTS SIMILAR TO
THOSE COMPLAINED OF HERE, WHICH HAVE FOR MANY YEARS BEEN USED IN
ORGANIZED BASEBALL, HAVE BEEN HELD BY THIS COURT TO BE OUTSIDE THE
SCOPE OF THE ANTITRUST LAWS.  (FN5)  THEY POINT TO FEDERAL BASEBALL AND
TOOLSON, SUPRA, BOTH INVOLVING THE BUSINESS OF PROFESSIONAL BASEBALL,
ASSERTING THAT PROFESSIONAL FOOTBALL HAS EMBRACED THE SAME TECHNIQUES
WHICH EXISTED IN BASEBALL AT THE TIME OF THE FORMER DECISION.  (FN6)
THEY CONTEND THAT STARE DECISIS COMPELS THE SAME RESULT HERE.  TRUE,
THE UMBRELLA UNDER WHICH RESPONDENTS HOPE TO STAND IS NOT SO LARGE AS
THAT CONTENDED FOR IN UNITED STATES V. INTERNATIONAL BOXING CLUB,
SUPRA, NOR IN UNITED STATES V. SHUBERT, 348 U.S. 222 (1955).  THERE WE
WERE ASKED TO EXTEND FEDERAL BASEBALL TO BOXING AND THE THEATER.  HERE
RESPONDENTS SAY THAT THE CONTRACTS AND SANCTIONS WHICH BASEBALL AND
FOOTBALL FIND IT NECESSARY TO IMPOSE HAVE NO COUNTERPART IN OTHER
BUSINESSES AND THAT, THEREFORE, THEY ALONE ARE OUTSIDE THE AMBIT OF THE
SHERMAN ACT.  IN TOOLSON WE CONTINUED TO HOLD THE UMBRELLA OVER
BASEBALL THAT WAS PLACED THERE SOME 31 YEARS EARLIER BY FEDERAL
BASEBALL.  THE COURT DID THIS BECAUSE IT WAS CONCLUDED THAT MORE HARM
WOULD BE DONE IN OVERRULING FEDERAL BASEBALL THAN IN UPHOLDING A RULING
WHICH AT BEST WAS OF DUBIOUS VALIDITY.  VAST EFFORTS HAD GONE INTO THE
DEVELOPMENT AND ORGANIZATION OF BASEBALL SINCE THAT DECISION AND
ENORMOUS CAPITAL HAD BEEN INVESTED IN RELIANCE ON ITS PERMANENCE. 
CONGRESS HAD CHOSEN TO MAKE NO CHANGE.  (FN7)  ALL THIS, COMBINED WITH
THE FLOOD OF LITIGATION THAT WOULD FOLLOW ITS REPUDIATION, THE
HARASSMENT THAT WOULD ENSUE, AND THE RETROACTIVE EFFECT OF SUCH A
DECISION, LED THE COURT TO THE PRACTICAL RESULT THAT IT SHOULD SUSTAIN
THE UNEQUIVOCAL LINE OF AUTHORITY REACHING OVER MANY YEARS. 

THE COURT WAS CAREFUL TO RESTRICT TOOLSON'S COVERAGE TO BASEBALL,
FOLLOWING THE JUDGMENT OF FEDERAL BASEBALL ONLY SO FAR AS IT
"DETERMINES THAT CONGRESS HAD NO INTENTION OF INCLUDING THE BUSINESS OF
BASEBALL WITHIN THE SCOPE OF THE FEDERAL ANTITRUST LAWS."  346 U.S., AT
357.  THE COURT REITERATED THIS IN UNITED STATES V. SHUBERT, SUPRA, AT
230, WHERE IT SAID, "IN SHORT, TOOLSON WAS A NARROW APPLICATION OF THE
RULE OF STARE DECISIS."  AND AGAIN, IN INTERNATIONAL BOXING CLUB, IT
ADDED, "TOOLSON NEITHER OVERRULED FEDERAL BASEBALL NOR NECESSARILY
REAFFIRMED ALL THAT WAS SAID IN FEDERAL BASEBALL  ...  .  TOOLSON IS
NOT AUTHORITY FOR EXEMPTING OTHER BUSINESSES MERELY BECAUSE OF THE
CIRCUMSTANCES THAT THEY ARE ALSO BASED ON THE PERFORMANCE OF LOCAL
EXHIBITIONS."  348 U.S., AT 242.  FURTHERMORE, IN DISCUSSING THE IMPACT
OF THE FEDERAL BASEBALL DECISION, THE COURT MADE THE OBSERVATION THAT
THAT DECISION "COULD NOT BE RELIED UPON AS A BASIS OF EXEMPTION FOR
OTHER SEGMENTS OF THE ENTERTAINMENT BUSINESS, ATHLETIC OR OTHERWISE
...  .  THE CONTROLLING CONSIDERATION IN FEDERAL BASEBALL  ...  WAS
...  THE DEGREE OF INTERSTATE ACTIVITY INVOLVED IN THE PARTICULAR
BUSINESS UNDER REVIEW."  ID., AT 242-243.  IT SEEMS THAT THIS LANGUAGE
WOULD HAVE MADE IT CLEAR THAT THE COURT INTENDED TO ISOLATE THESE CASES
BY LIMITING THEM TO BASEBALL, BUT SINCE TOOLSON AND FEDERAL BASEBALL
ARE STILL CITED AS CONTROLLING AUTHORITY IN ANTITRUST ACTIONS INVOLVING
OTHER FIELDS OF BUSINESS, WE NOW SPECIFICALLY LIMIT THE RULE THERE
ESTABLISHED TO THE FACTS THERE INVOLVED, I.E., THE BUSINESS OF
ORGANIZED PROFESSIONAL BASEBALL.  AS LONG AS THE CONGRESS CONTINUES TO
ACQUIESCE WE SHOULD ADHERE TO - BUT NOT EXTEND - THE INTERPRETATION OF
THE ACT MADE IN THOSE CASES.  WE DID NOT EXTEND THEM TO BOXING OR THE
THEATER BECAUSE WE BELIEVED THAT THE VOLUME OF INTERSTATE BUSINESS IN
EACH - THE RATIONALE OF FEDERAL BASEBALL - WAS SUCH THAT BOTH
ACTIVITIES WERE WITHIN THE ACT.  LIKEWISE, THE VOLUME OF INTERSTATE
BUSINESS INVOLVED IN ORGANIZED PROFESSIONAL FOOTBALL PLACES IT WITHIN
THE PROVISIONS OF THE ACT. 

IF THIS RULING IS UNREALISTIC, INCONSISTENT, OR ILLOGICAL, IT IS
SUFFICIENT TO ANSWER, ASIDE FROM THE DISTINCTIONS BETWEEN THE
BUSINESSES, (FN8) THAT WERE WE CONSIDERING THE QUESTION OF BASEBALL FOR
THE FIRST TIME UPON A CLEAN SLATE WE WOULD HAVE NO DOUBTS.  BUT FEDERAL
BASEBALL HELD THE BUSINESS OF BASEBALL OUTSIDE THE SCOPE OF THE ACT. 
NO OTHER BUSINESS CLAIMING THE COVERAGE OF THOSE CASES HAS SUCH AN
ADJUDICATION.  WE, THEREFORE, CONCLUDE THAT THE ORDERLY WAY TO
ELIMINATE ERROR OR DISCRIMINATION, IF ANY THERE BE, IS BY LEGISLATION
AND NOT BY COURT DECISION.  CONGRESSIONAL PROCESSES ARE MORE
ACCOMMODATIVE, AFFORDING THE WHOLE INDUSTRY HEARINGS AND AN OPPORTUNITY
TO ASSIST IN THE FORMULATION OF NEW LEGISLATION.  THE RESULTING PRODUCT
IS THEREFORE MORE LIKELY TO PROTECT THE INDUSTRY AND THE PUBLIC ALIKE. 
THE WHOLE SCOPE OF CONGRESSIONAL ACTION WOULD BE KNOWN LONG IN ADVANCE
AND EFFECTIVE DATES FOR THE LEGISLATION COULD BE SET IN THE FUTURE
WITHOUT THE INJUSTICES OF RETROACTIVITY AND SURPRISE WHICH MIGHT FOLLOW
COURT ACTION.  OF COURSE, THE DOCTRINE OF TOOLSON AND FEDERAL BASEBALL
MUST YIELD TO ANY CONGRESSIONAL ACTION AND CONTINUES ONLY AT ITS
SUFFERANCE.  THIS IS NOT A NEW APPROACH.  SEE DAVIS V. DEPARTMENT OF
LABOR, 317 U.S. 249, 255 (1942); (FN9) COMPARE RUTKINS V. UNITED
STATES, 343 U.S. 130 (1952). 

                                      III. 

WE NOW TURN TO THE SUFFICIENCY OF THE COMPLAINT.  AT THE OUTSET THE
ALLEGATIONS OF THE NATURE AND EXTENT OF INTERSTATE COMMERCE SEEM TO BE
SUFFICIENT.  IN ADDITION TO THE STANDARD ALLEGATIONS, A SPECIFIC CLAIM
IS MADE THAT RADIO AND TELEVISION TRANSMISSION IS A SIGNIFICANT,
INTEGRAL PART OF THE RESPONDENTS' BUSINESS, EVEN TO THE EXTENT OF BEING
THE DIFFERENCE BETWEEN A PROFIT AND A LOSS.  UNLIKE INTERNATIONAL
BOXING, THE COMPLAINT ALLEGES NO DEFINITE PERCENTAGE IN THIS REGARD. 
HOWEVER, THE AMOUNT MUST BE SUBSTANTIAL AND CAN EASILY BE BROUGHT OUT
IN THE PROOF.  IF SUBSTANTIAL, AS ALLEGED, IT ALONE IS SUFFICIENT TO
MEET THE COMMERCE REQUIREMENTS OF THE ACT.  SEE INTERNATIONAL BOXING,
SUPRA, AT 241. 

LIKEWISE, WE FIND THE TECHNICAL OBJECTIONS TO THE PLEADING WITHOUT
MERIT.  THE TEST AS TO SUFFICIENCY LAID DOWN BY MR. JUSTICE HOLMES IN
HART V. B.F. KEITH VAUDEVILLE EXCHANGE, 262 U.S. 271, 274 (1923), IS
WHETHER "THE CLAIM IS WHOLLY FRIVOLOUS."  WHILE THE COMPLAINT MIGHT
HAVE BEEN MORE PRECISE IN ITS ALLEGATIONS CONCERNING THE PURPOSE AND
EFFECT OF THE CONSPIRACY, "WE ARE NOT PREPARED TO SAY THAT NOTHING CAN
BE EXTRACTED FROM THIS BILL THAT FALLS UNDER THE ACT OF CONGRESS  ...
."  ID., AT 274.  SEE ALSO UNITED STATES V. EMPLOYING PLASTERERS ASSN.,
347 U.S. 186 (1954). 

PETITIONER'S CLAIM NEED ONLY BE "TESTED UNDER THE SHERMAN ACT'S
GENERAL PROHIBITION ON UNREASONABLE RESTRAINTS OF TRADE," TIMES
PICAYUNE PUBLISHING CO. V. UNITED STATES, 345 U.S. 594, 614 (1953), AND
MEET THE REQUIREMENT THAT PETITIONER HAS THEREBY SUFFERED INJURY. 
CONGRESS HAS, BY LEGISLATIVE FIAT, DETERMINED THAT SUCH PROHIBITED
ACTIVITIES ARE INJURIOUS TO THE PUBLIC (FN10) AND HAS PROVIDED
SANCTIONS ALLOWING PRIVATE ENFORCEMENT OF THE ANTITRUST LAWS BY AN
AGGRIEVED PARTY.  THESE LAWS PROTECT THE VICTIMS OF THE FORBIDDEN
PRACTICES AS WELL AS THE PUBLIC.  MANDEVILLE ISLAND FARMS, INC. V.
AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219, 236 (1948).  FURTHERMORE,
CONGRESS ITSELF HAS PLACED THE PRIVATE ANTITRUST LITIGANT IN A MOST
FAVORABLE POSITION THROUGH THE ENACTMENT OF SEC. 5 OF THE CLAYTON ACT. 
(FN11)  EMICH MOTORS CORP. V. GENERAL MOTORS CORP., 340 U.S. 558
(1951).  IN THE FACE OF SUCH A POLICY THIS COURT SHOULD NOT ADD
REQUIREMENTS TO BURDEN THE PRIVATE LITIGANT BEYOND WHAT IS SPECIFICALLY
SET FORTH BY CONGRESS IN THOSE LAWS.    RESPONDENTS' REMAINING
CONTENTIONS WE BELIEVE TO BE LACKING IN MERIT. 

WE THINK THAT RADOVICH IS ENTITLED TO AN OPPORTUNITY TO PROVE HIS
CHARGES.  OF COURSE, WE EXPRESS NO OPINION AS TO WHETHER OR NOT
RESPONDENTS HAVE, IN FACT, VIOLATED THE ANTITRUST LAWS, LEAVING THAT
DETERMINATION TO THE TRIAL COURT AFTER ALL THE FACTS ARE IN.
REVERSED. 

FN1  38 STAT. 731, 15 U.S.C. SEC. 15, READS AS FOLLOWS: 

"SEC. 4.  THAT ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR
PROPERTY BY REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST LAWS MAY SUE
THEREFOR IN ANY DISTRICT COURT OF THE UNITED STATES IN THE DISTRICT IN
WHICH THE DEFENDANT RESIDES OR IS FOUND OR HAS AN AGENT, WITHOUT
RESPECT TO THE AMOUNT IN CONTROVERSY, AND SHALL RECOVER THREEFOLD THE
DAMAGES BY HIM SUSTAINED, AND THE COST OF SUIT, INCLUDING A REASONABLE
ATTORNEY'S FEE." 

INJUNCTIVE RELIEF IS PROVIDED FOR BY 38 STAT. 737, 15 U.S.C. SEC.
26. 

FN2  THE RESPONDENTS INCLUDE THE NATIONAL FOOTBALL LEAGUE; ITS 10
MEMBER CLUBS AT THE TIME THE COMPLAINT WAS FILED:  BOSTON YANKS, NEW
YORK GIANTS, PHILADELPHIA EAGLES, LOS ANGELES RAMS, PITTSBURGH
STEELERS, WASHINGTON REDSKINS, CHICAGO BEARS, CHICAGO CARDINALS,
DETROIT LIONS, AND GREEN BAY PACKERS; THE NOW DEFUNCT PACIFIC COAST
LEAGUE; THE SAN FRANCISCO CLIPPERS, A MEMBER OF THE PACIFIC COAST
LEAGUE; BERT BELL, COMMISSIONER OF THE NATIONAL FOOTBALL LEAGUE; AND J.
RUFUS KLAWANS, COMMISSIONER OF THE PACIFIC COAST LEAGUE. 

FN3  26 STAT. 209, 15 U.S.C. SEC. 1, READS IN PERTINENT PART: 

"SEC. 1.  EVERY CONTRACT, COMBINATION IN THE FORM OF TRUST OR
OTHERWISE, OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE AMONG THE
SEVERAL STATES  ...  IS HEREBY DECLARED TO BE ILLEGAL  ... ." 

26 STAT. 209, 15 U.S.C. SEC. 2, READS IN PERTINENT PART: 

"SEC. 2.  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
...  SHALL BE DEEMED GUILTY OF A MISDEMEANOR  ...  ." 

FN4  THIS CONFERENCE OPERATED FROM 1946 THROUGH 1949 AT WHICH TIME IT
WAS DISBANDED. 

FN5  NO CONTENTION IS MADE THAT THE BUSINESS OF PROFESSIONAL FOOTBALL
HAS ANY SPECIFIC EXEMPTION FROM THE ANTITRUST LAWS. 

FN6  SINCE THIS ACTION WAS DISMISSED ON THE PLEADINGS, THERE HAS BEEN
NO FACTUAL DETERMINATION ESTABLISHING THE CLAIMED SIMILARITY BETWEEN
THE BUSINESSES OF BASEBALL AND FOOTBALL. 

FN7  CONGRESS DID CONSIDER THE EXTENSION OF THE BASEBALL RULE TO
OTHER SPORTS.  IN 1951 FOUR SEPARATE BILLS WERE INTRODUCED TO EXEMPT
ORGANIZED PROFESSIONAL SPORTS FROM THE ANTITRUST LAWS.  NONE OF THEM
WERE ENACTED.  SEE H.R. 4229, 4230, 4231, AND S. 1526, 82D CONG., 1ST
SESS. (1951). 

FN8  CONSIDERATION OF BASIC DIFFERENCES, IF ANY, BETWEEN THE BASEBALL
AND FOOTBALL BUSINESSES, SUCH AS THE FOOTBALL DRAFT SYSTEM, USE OF
LEAGUE AFFILIATIONS, TRAINING FACILITIES AND TECHNIQUES, ETC., IS NOT
NECESSARY TO THIS DECISION. 

FN9  THE CONCURRING OPINION USES THIS LANGUAGE:  "SUCH A DESIRABLE
END CANNOT NOW BE ACHIEVED MERELY BY JUDICIAL REPUDIATION OF THE JENSEN
DOCTRINE."  317 U.S., AT 259. 

FN10  IN APEX HOSIERY CO. V. LEADER, 310 U.S. 469 (1940), THIS COURT
SAID: "THE END SOUGHT WAS THE PREVENTION OF RESTRAINTS TO FREE
COMPETITION IN BUSINESS AND COMMERCIAL TRANSACTIONS WHICH TENDED TO
RESTRICT PRODUCTION, RAISE PRICES OR OTHERWISE CONTROL THE MARKET TO
THE DETRIMENT OF PURCHASERS OR CONSUMERS OF GOODS AND SERVICES, ALL OF
WHICH HAD COME TO BE REGARDED AS A SPECIAL FORM OF PUBLIC INJURY." 
ID., AT 493.  IN STANDARD SANITARY MFG. CO. V. UNITED STATES, 226 U.S.
20 (1912), SPEAKING OF THE ANTITRUST LAWS, THE COURT SAID:  "THE LAW IS
ITS OWN MEASURE OF RIGHT AND WRONG, OF WHAT IT PERMITS, OR FORBIDS, AND
THE JUDGMENT OF THE COURTS CANNOT BE SET UP AGAINST IT IN A SUPPOSED
ACCOMMODATION OF ITS POLICY WITH THE GOOD INTENTION OF PARTIES, AND IT
MAY BE, OF SOME GOOD RESULTS."  ID., AT 49. 

FN11  38 STAT. 731, 15 U.S.C. SEC. 16, DECLARES THAT A FINAL JUDGMENT
AGAINST A DEFENDANT IN PROCEEDINGS BY THE GOVERNMENT FOR VIOLATION OF
THE ANTITRUST LAWS MAY BE INTRODUCED BY A PRIVATE LITIGANT IN A
SUBSEQUENT TREBLE DAMAGE ACTION AND ESTABLISHES PRIMA FACIE A VIOLATION
OF THE ANTITRUST LAWS. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE DIFFICULT PROBLEM IN THIS CASE DERIVES FOR ME NOT OUT OF THE
SHERMAN LAW BUT IN RELATION TO THE APPROPRIATE COMPULSION OF STARE
DECISIS.  IT DOES NOT DERIVE FROM THE SHERMAN LAW BECAUSE THE MOST
CONSCIENTIOUS PROBING OF THE TEXT AND THE INTERSTICES OF THE SHERMAN
LAW FAILS TO DISCLOSE THA CONGRESS, WHOSE WILL WE ARE ENFORCING,
EXCLUDED BASEBALL - THE CONDITIONS UNDER WHICH THAT SPORT IS CARRIED ON
- FROM THE SCOPE OF THE SHERMAN LAW BUT INCLUDED FOOTBALL.  I SAY THIS,
FULLY AWARE THAT THE SHERMAN LAW'S APPLICABILITY TURNS ON THE
PARTICULAR CIRCUMSTANCES OF ACTIVITIES PURSUED IN TRADE AND COMMERCE
AMONG THE SEVERAL STATES.  BUT WHETHER THE CONDUCT OF AN ENTERPRISE IS
WITHIN OR WITHOUT THE LIMITS OF THE SHERMAN LAW IS, AFTER ALL, A
QUESTION FOR JUDICIAL DETERMINATION, AND CONSCIOUS AS I AM OF MY
LIMITED COMPETENCE IN MATTERS ATHLETIC, I HAVE YET TO HEAR OF ANY
CONSIDERATION THAT LED THIS COURT TO HOLD 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," TOOLSON V. NEW YORK YANKEES, 346 U.S. 356, 357, THAT
IS NOT EQUALLY APPLICABLE TO FOOTBALL. 

BUT CONSIDERATIONS PERTAINING TO STARE DECISIS DO RAISE A SERIOUS
QUESTION FOR ME.  THAT PRINCIPLE IS A VITAL INGREDIENT OF LAW, FOR IT
"EMBODIES AN IMPORTANT SOCIAL POLICY."  HELVERING V. HALLOCK, 309 U.S.
106, 119.  IT WOULD DISREGARD THE PRINCIPLE FOR A JUDGE STUBBORNLY TO
PERSIST IN HIS VIEWS ON A PARTICULAR ISSUE AFTER THE CONTRARY HAD
BECOME PART OF THE TISSUE OF THE LAW.  UNTIL THEN, FULL RESPECT FOR
STARE DECISIS DOES NOT REQUIRE A JUDGE TO FOREGO HIS OWN CONVICTIONS
PROMPTLY AFTER HIS BRETHREN HAVE REJECTED THEM. 

THE CONSIDERATIONS THAT GOVERNED ME TWO YEARS AGO IN UNITED STATES V.
INTERNATIONAL BOXING CLUB, 348 U.S. 236, HAVE NOT LOST THEIR FORCE BY
REASON OF THE AUTHORITY THAT TIME GIVES TO A SINGLE DECISION.  AND SO I
AM CONFRONTED WITH THE TOOLSON CASE, SUPRA, WHICH GUIDES ME TO FIND THE
PRESENT SITUATION WITHIN ITS SCOPE, AND THE BOXING CASE, SUPRA, WHICH,
WHILE IT LOOKS THE OTHER WAY, LEFT TOOLSON AS A LIVING AUTHORITY. 
RESPECT FOR THE DOCTRINE OF STARE DECISIS DOES NOT YET REQUIRE ME TO
DISRESPECT THE VIEWS I EXPRESSED IN THE BOXING CASE. 

I WOULD AFFIRM. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE BRENNAN JOINS, DISSENTING. 

WHAT WAS FORESHADOWED BY UNITED STATES V. INTERNATIONAL BOXING CLUB,
348 U.S. 236, HAS NOW COME TO PASS.  THE COURT, IN HOLDING THAT
PROFESSIONAL FOOTBALL IS SUBJECT TO THE ANTITRUST LAWS, NOW SAYS IN
EFFECT THAT PROFESSIONAL BASEBALL IS SUI GENERIS SO FAR AS THOSE LAWS
ARE CONCERNED, AND THAT THEREFORE FEDERAL BASEBALL CLUB V. NATIONAL
LEAGUE, 259 U.S. 200, AND TOOLSON V. NEW YORK YANKEES, INC., 346 U.S.
356, DO NOT CONTROL FOOTBALL BY REASON OF STARE DECISIS.  SINCE I AM
UNABLE TO DISTINGUISH FOOTBALL FROM BASEBALL UNDER THE RATIONALE OF
FEDERAL BASEBALL AND TOOLSON, AND CAN FIND NO BASIS FOR ATTRIBUTING TO
CONGRESS A PURPOSE TO PUT BASEBALL IN A CLASS BY ITSELF, I WOULD ADHERE
TO THE RULE OF STARE DECISIS AND AFFIRM THE JUDGMENT BELOW. 

IF THE SITUATION RESULTING FROM THE BASEBALL DECISIONS IS TO BE
CHANGED, I THINK IT FAR BETTER TO LEAVE IT TO BE DEALT WITH BY CONGRESS
THAN FOR THIS COURT TO BECLOUD THE SITUATION FURTHER, EITHER BY MAKING
UNTENABLE DISTINCTIONS BETWEEN BASEBALL AND OTHER PROFESSIONAL SPORTS,
OR BY DISCRIMINATORY FIAT IN FAVOR OF BASEBALL. 
..END :
















UNITED STATES GYPSUM CO. V. NATIONAL GYPSUM CO. 352 U.S. 457 


NO. 11.  ARGUED NOVEMBER 5-6, 1956 - DECIDED FEBRUARY 25, 1957 -
REVERSED AND REMANDED. 


AFTER THIS COURT, IN UNITED STATES V. UNITED STATES GYPSUM CO., 333
U.S. 364, REVERSED DISMISSAL OF THE GOVERNMENT'S SUIT TO RESTRAIN
VIOLATIONS OF THE SHERMAN ACT THROUGH UNIFORM PATENT-LICENSING
AGREEMENTS CONTAINING PRICE-FIXING PROVISIONS, APPELLEES CEASED PAYING
ROYALTIES TO APPELLANT UNDER THOSE AGREEMENTS; AND THEY MADE NO FURTHER
PAYMENTS UNTIL AFTER NEW AGREEMENTS WITHOUT PRICE-FIXING PROVISIONS
WERE ENTERED INTO FOLLOWING ENTRY IN THE ANTITRUST SUIT OF A FINAL
DECREE ENJOINING USE OF THE OLD AGREEMENTS.  SUBSEQUENTLY, APPELLANT
SUED APPELLEES FOR THE USE OF ITS PATENTS DURING THAT PERIOD.  IT
ASSERTED THREE ALTERNATIVE GROUNDS FOR RECOVERY:  (A) THE ROYALTY
PROVISIONS OF THE OLD LICENSING AGREEMENTS, (B) THE REASONABLE VALUE OF
THE USE OF ITS PATENTS, AND (C) DAMAGES FOR PATENT INFRINGEMENT.  ON
PETITION OF APPELLEES, THE ANTITRUST COURT MODIFIED ITS DECREE IN THE
ANTITRUST CASE SO AS TO REQUIRE APPELLANT TO DISMISS WITH PREJUDICE ITS
SUITS AGAINST APPELLEES.  THE COURT TOOK NO EVIDENCE BEYOND THAT
ALREADY IN THE RECORD IN THE ANTITRUST PROCEEDING, AND THE RECORD WAS
BARREN OF ANY FACTS WITH RESPECT TO THE SITUATION EXISTING IN THE
INDUSTRY SINCE 1941.  HELD: 

1.  BY VIRTUE OF ITS RESERVATION OF JURISDICTION IN ITS ANTITRUST
DECREE TO MAKE SUCH "DIRECTIONS" AND "MODIFICATIONS" AS MAY BE
APPROPRIATE TO THE "CARRYING OUT" AND "ENFORCEMENT" OF THAT DECREE, THE
DISTRICT COURT HAD JURISDICTION TO GRANT RELIEF.  PP. 463-464. 

2.  THE ENJOINING OF APPELLANT'S SUITS FOR ROYALTIES UNDER THE
OUTLAWED LICENSING AGREEMENTS WAS PROPER; AND, UPON REMAND, THE
DISTRICT COURT, BY APPROPRIATE MODIFICATION OF ITS DECREE IN THE
ANTITRUST CASE OR OTHERWISE, MAY REQUIRE APPELLANT TO DISMISS THOSE
CLAIMS.  PP. 464-465, 476. 

3.  THE ENJOINING OF APPELLANT'S SUITS FOR COMPENSATION ON A QUANTUM
MERUIT BASIS AND FOR DAMAGES FOR PATENT INFRINGEMENT WAS NOT JUSTIFIED
UPON THE RECORD; AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR THE
TAKING OF EVIDENCE ON THE ISSUES OF MISUSE OF PATENTS AND PURGE OF SUCH
MISUSE AS THEY MAY RELATE TO THE PERIOD SINCE FEBRUARY 1, 1948.  PP.
465-476. 

(A)  IN THE CIRCUMSTANCES OF THIS CASE, THE DISTRICT COURT ERRED IN
HOLDING THAT APPELLANT'S ASSERTION OF CLAIMS BASED UPON THE OUTLAWED
LICENSING AGREEMENTS CONSTITUTED A "FRESH" MISUSE OF ITS PATENTS BY
APPELLANT.  PP. 466-468. 

(B)  THE DISTRICT COURT'S JUDGMENT CANNOT BE SUPPORTED ON THE GROUND
THAT THE MISUSE OF APPELLANT'S PATENTS HAD NOT BEEN PURGED, BECAUSE (1)
THE ONLY MISUSE OF APPELLANT'S PATENTS EVER ADJUDICATED IN THE
ANTITRUST CASE WAS THAT ARISING FROM THE UNIFORM PRICE-FIXING
PROVISIONS OF THE LICENSING AGREEMENTS, (2) THE USE OF THOSE AGREEMENTS
WAS TERMINATED UPON ENTRY OF THE 1948 DECREE IN THE ANTITRUST CASE, AND
(3) THE RECORD IS BARE OF ANY FACTS RELATING TO THE SITUATION IN THE
INDUSTRY SINCE 1941.  PP. 465, 468-473. 

(C)  THE DISTRICT COURT ERRED IN HOLDING THAT, REGARDLESS OF WHETHER
THEY HAD BEEN PURGED, THE "OLD" MISUSE OF ITS PATENTS BARRED APPELLANT
FROM RECOVERING DAMAGES FOR THEIR INFRINGEMENT.  HARTFORD EMPIRE CO. V.
UNITED STATES, 323 U.S. 386, 324 U.S. 570, DISTINGUISHED.  PP. 473
476. 

(D)  IT IS APPROPRIATE THAT THE ISSUES OF MISUSE AND PURGE SINCE
FEBRUARY 1, 1948, SHOULD BE TRIED AND DISPOSED OF BY THE ANTITRUST
COURT, RATHER THAN THE COURTS IN WHICH APPELLANT'S SUITS WERE BROUGHT,
BOTH BECAUSE OF THE RELATIONSHIP OF THESE ISSUES TO THE DECREE IN THE
ANTITRUST CASE AND BECAUSE OF THE ANTITRUST COURT'S FAMILIARITY WITH
WHAT HAS OCCURRED IN THESE PROTRACTED LITIGATIONS.   P. 476. 

4.  SHOULD THE ANTITRUST COURT CONCLUDE THAT APPELLANT IS NOT BARRED,
BY REASON OF UNPURGED PATENT MISUSE, FROM RECOVERY OF COMPENSATION ON A
QUANTUM MERUIT BASIS OR FROM RECOVERY OF DAMAGES FOR PATENT
INFRINGEMENT, THE TRIAL AND DISPOSITION OF ALL OTHER ISSUES, INCLUDING
ANY DEFENSE OF PATENT INVALIDITY, SHOULD THEN TAKE PLACE IN THE COURTS
IN WHICH APPELLANT'S SUITS AGAINST APPELLEES ARE PENDING.  P. 476. 

UNITED STATES GYPSUM CO. V. NATIONAL GYPSUM CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

UNITED STATES GYPSUM COMPANY APPEALS FROM A DECREE OF THE THREE-JUDGE
COURT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA,
ENTERED DECEMBER 9, 1954.  THIS DECREE MODIFIED A FINAL DECREE OF THAT
COURT, ENTERED MAY 15, 1951, AGAINST GYPSUM, THE APPELLEES NATIONAL
GYPSUM COMPANY AND CERTAIN-TEED PRODUCTS CORPORATION, AND OTHERS, IN A
CIVIL ANTITRUST PROCEEDING INSTITUTED BY THE GOVERNMENT IN 1940.  (FN1)
THE MODIFICATION WAS A PROVISION ORDERING GYPSUM TO DISMISS WITH
PREJUDICE FOUR SUITS WHICH IT HAD BROUGHT IN THREE DIFFERENT FEDERAL
DISTRICT COURTS AGAINST NATIONAL, CERTAIN-TEED, AND TWO OTHER CO
DEFENDANTS IN THE ANTITRUST PROCEEDING, TO RECOVER COMPENSATION OR
DAMAGES FOR THE PENDENTE LITE USE OF CERTAIN OF ITS PATENTS DURING THE
PERIOD FEBRUARY 1, 1948, TO MAY 15, 1951.  (FN2) 

AT THE OUTSET SOME MENTION OF THE PROLONGED ANTITRUST PROCEEDING IS
REQUIRED TO PUT THE PRESENT POST-DECREE CONTROVERSY IN CONTEXT.  IN
THAT PROCEEDING THE GOVERNMENT CHARGED GYPSUM, NATIONAL, CERTAIN-TEED,
AND A NUMBER OF OTHER CORPORATE AND INDIVIDUAL DEFENDANTS WITH
CONSPIRACY TO RESTRAIN AND MONOPOLIZE INTERSTATE COMMERCE IN GYPSUM
BOARD AND OTHER GYPSUM PRODUCTS IN VIOLATION OF SECS. 1, 2, AND 3 OF
THE SHERMAN ACT.  (FN3)  THE CRUX OF THE GOVERNMENT'S CHARGES WAS THE
ALLEGED ILLEGALITY OF GYPSUM'S SYSTEM OF INDUSTRY-WIDE UNIFORM PATENT
LICENSING AGREEMENTS CONTAINING CLAUSES GIVING GYPSUM THE RIGHT TO FIX
PRICES ON GYPSUM BOARD AND PRODUCTS.  IN 1946, AT THE CLOSE OF THE
GOVERNMENT'S CASE, THE DISTRICT COURT DISMISSED THE COMPLAINT.  (FN4)
ON APPEAL THIS COURT, ON MARCH 8, 1948, REVERSED AND REMANDED THE CASE
FOR FURTHER PROCEEDINGS.  (FN5)  THEREAFTER THE DISTRICT COURT, WITH
ONE DISSENT, (FN6) INTERPRETING THIS COURT'S DECISION TO MEAN THAT
GYPSUM'S MULTIPLE UNIFORM PRICE FIXING PATENT LICENSES WERE ILLEGAL PER
SE UNDER THE ANTITRUST LAWS, GRANTED THE GOVERNMENT'S MOTION FOR
SUMMARY JUDGMENT, ACCEPTING AS TRUE THE DEFENDANTS' PROFFER OF PROOF. 
ON NOVEMBER 7, 1949, THE DISTRICT COURT ENTERED A DECREE WHICH, AMONG
OTHER THINGS, ADJUDGED GYPSUM'S PATENT LICENSING AGREEMENTS ILLEGAL,
NULL AND VOID, ENJOINED THE PERFORMANCE OF SUCH AGREEMENTS, PROVIDED
FOR LIMITED COMPULSORY NONEXCLUSIVE LICENSING OF GYPSUM'S PATENTS ON A
REASONABLE ROYALTY BASIS, AND RESERVED JURISDICTION OVER THE CASE AND
PARTIES FOR CERTAIN PURPOSES.  ON APPEALS BY BOTH THE GOVERNMENT AND
GYPSUM, THIS COURT, IN 1950, DISMISSED GYPSUM'S APPEAL, (FN7) AFFIRMED
THE SUMMARY JUDGMENT BELOW, (FN8) AND HELD THE GOVERNMENT ENTITLED TO
BROADER RELIEF IN CERTAIN RESPECTS, REMANDING THE CASE FOR THAT
PURPOSE.  (FN9)  MEANWHILE, IN NOTING PROBABLE JURISDICTION ON THE
GOVERNMENT'S APPEAL, THIS COURT ENJOINED THE DEFENDANTS FROM CARRYING
OUT THE PRICE FIXING PROVISIONS OF THEIR CURRENT LICENSE AGREEMENTS,
AND FROM ENTERING INTO ANY AGREEMENTS OR ENGAGING IN CONCERTED ACTION
IN RESTRAINT OF TRADE.  (FN10)  THIS PRELIMINARY INJUNCTION, ENTERED
MAY 29, 1950, REMAINED IN FORCE UNTIL THE NEW FINAL DECREE OF THE
DISTRICT COURT WAS ENTERED IN MAY 15, 1951.  (FN11) 

AFTER THIS COURT'S 1948 REVERSAL OF THE DISTRICT COURT'S ORIGINAL
ORDER OF DISMISSAL, NATIONAL, CERTAIN-TEED, AND GYPSUM'S OTHER CO
DEFENDANT LICENSEES CEASED PAYING ROYALTIES UNDER THEIR LICENSE
AGREEMENTS.  (FN12)  FOLLOWING THE MAY 15, 1951, DECREE, NATIONAL AND
CERTAIN-TEED, AS AUTHORIZED BY ARTICLE VI OF THAT DECREE, ENTERED INTO
NEW LICENSE AGREEMENTS, EFFECTIVE MAY 15, FOR THE FUTURE USE OF
GYPSUM'S PATENTS, SUCH LICENSES CONTAINING NO PRICE FIXING CLAUSES; THE
ROYALTY RATE WAS THE SAME AS UNDER THE OLD LICENSES, EXCEPT THAT THE
LICENSEE'S RETURNS ON UNPATENTED GYPSUM PRODUCTS DID NOT ENTER INTO ITS
MEASURE.  THE NEW LICENSES WERE WITHOUT PREJUDICE TO GYPSUM'S CLAIM FOR
COMPENSATION FOR THE USE OF THE PATENTS DURING THE PERIOD FEBRUARY 1,
1948, TO MAY 15, 1951.  THE RESPONDENTS NOT HAVING PAID FOR THAT
PERIOD, GYPSUM, IN 1953, BROUGHT SUIT AGAINST THEM IN THE IOWA FEDERAL
COURT.  THE COMPLAINTS IN THESE SUITS ASSERTED THREE SEPARATE GROUNDS
FOR RECOVERY:  (A) THE ROYALTY PROVISIONS OF THE OLD LICENSE AGREEMENTS
(COUNTS I AND II); (B) QUANTUM MERUIT FOR THE REASONABLE VALUE OF THE
USE OF THE PATENTS (COUNTS III AND IV); (FN13) AND (C) DAMAGES FOR
PATENT INFRINGEMENT (COUNT V). 

THEREAFTER, NATIONAL AND CERTAIN-TEED, CLAIMING THAT THE INSTITUTION
OF THE IOWA ACTIONS VIOLATED THE 1951 DECREE, AND THAT IN ANY EVENT
GYPSUM WAS BARRED FROM RECOVERY BY REASON OF UNPURGED MISUSE OF THE
PATENTS INVOLVED, PETITIONED THE ANTITRUST COURT TO ENJOIN FURTHER
PROSECUTION OF THE ACTIONS.  (FN14) THE GOVERNMENT ALSO FILED A
SEPARATE PETITION TO ENJOIN GYPSUM FROM MAINTAINING ANY ACTION BASED ON
THE ILLEGAL LICENSE AGREEMENTS, BUT TOOK NO POSITION ON GYPSUM'S RIGHT
TO RECOVER FOR THE PERIOD IN QUESTION ON THE GROUNDS OF QUANTUM MERUIT
OR PATENT INFRINGEMENT.  (FN15) GYPSUM'S ANSWERS TO THESE PETITIONS IN
SUBSTANCE ALLEGED THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION TO
GRANT THE RELIEF SOUGHT BY THE PETITIONERS, AND PUT IN ISSUE ALL OF THE
ALLEGATIONS ON WHICH THE RIGHT TO RELIEF WAS PREDICATED. 

THE DISTRICT COURT DECIDED THAT IT HAD JURISDICTION TO GRANT RELIEF
(ONE JUDGE DISSENTING), AND, AFTER HEARING THE PARTIES THROUGH BRIEFS
AND ORAL ARGUMENT, BUT WITHOUT TAKING ANY EVIDENCE BEYOND THAT ALREADY
OF RECORD IN THE ANTITRUST PROCEEDING, CONCLUDED THAT THE 1951 DECREE
SHOULD BE MODIFIED SO AS TO ENJOIN THE PROSECUTION OF GYPSUM'S SUITS. 
(FN16)  THE COURT HELD THAT PROSECUTION OF COUNTS I AND II, WHICH
DECLARED UPON THE ILLEGAL LICENSE AGREEMENTS, COULD NOT BE MAINTAINED
UNDER THE TERMS OF THE 1951 DECREE.  ALTHOUGH FINDING THAT THE OTHER
THREE COUNTS WERE NOT BARRED BY THAT DECREE, IT FURTHER HELD THAT THE
SUITS SHOULD BE PROHIBITED IN THEIR ENTIRETY BECAUSE OF GYPSUM'S
UNPURGED MISUSE OF ITS PATENTS.  (FN17)  THERE FOLLOWED THE MODIFYING
DECREE OF DECEMBER 9, 1954, (FN18) FROM WHICH THIS APPEAL WAS TAKEN. 
WE NOTED PROBABLE JURISDICTION.  350 U.S. 946.  FOR THE REASONS GIVEN
HEREAFTER WE CONCLUDE THAT, EXCEPT AS IT RELATED TO THE TWO CAUSES OF
ACTION BASED ON THE ILLEGAL LICENSE AGREEMENTS (COUNTS I AND II), THIS
PROSCRIPTIVE MODIFICATION OF THE 1951 DECREE WAS NOT JUSTIFIED BY THE
RECORD BEFORE THE DISTRICT COURT. 

  I. 

PRELIMINARILY, WE CONCLUDE THAT THREE ASPECTS OF THE LOWER COURT'S
HOLDING MUST BE UPHELD.  FIRST, WE THINK THAT ARTICLE X OF THE 1951
DECREE, RESERVING TO THE ANTITRUST COURT JURISDICTION, UPON APPLICATION
OF "ANY OF THE PARTIES" TO THE DECREE, TO MAKE SUCH "DIRECTIONS" AND
"MODIFICATIONS" AS MAY BE APPROPRIATE TO THE "CARRYING OUT" AND
"ENFORCEMENT" OF THE DECREE, PROVIDED A FULLY ADEQUATE BASIS FOR THE
JURISDICTION EXERCISED BELOW.  (FN19)  UNITED STATES V. SWIFT & CO.,
286 U.S. 106, 114; MISSOURI-KANSAS PIPE LINE CO. V. UNITED STATES, 312
U.S. 502.  SEE ALSO CHRYSLER CORP. V. UNITED STATES 316 U.S. 556. 
GYPSUM ARGUES THAT INSOFAR AS THE RELIEF GRANTED BELOW WAS RESTED UPON
PATENT MISUSE, INSTEAD OF A CONSTRUCTION OF THE 1951 DECREE WHICH WAS
THE BASIS OF ENJOINING THE PROSECUTION OF COUNTS I AND II OF GYPSUM'S
SUITS, THE LOWER COURT'S DECISION INVOLVED A DETERMINATION OF A
COLLATERAL PRIVATE CONTROVERSY BETWEEN THIS GROUP OF ANTITRUST
DEFENDANTS, RATHER THAN A "CARRYING OUT" OR "ENFORCEMENT" OF THE TERMS
OF THAT DECREE.  BUT WE THINK THAT WHETHER GYPSUM WAS BARRED FROM
RECOVERY IN THESE SUITS BY REASON OF THE ABUSE OF ITS PATENT RIGHTS WAS
A PROBLEM SUFFICIENTLY RELATED TO THE RATIONALE OF THE 1951 DECREE TO
BRING IT WITHIN THE RESERVED JURISDICTION CLAUSE.  THIS IS ESPECIALLY
SO BECAUSE PATENT MISUSE WAS THE ESSENCE OF THE OLD ANTITRUST
LITIGATION, AND ITS CONTINUANCE OR RENEWAL WERE THUS ISSUES PECULIARLY
WITHIN THE PROVINCE OF THE ANTITRUST COURT, WHOSE DETERMINATION WOULD
AVOID MULTIPLE LITIGATION AND POSSIBLY CONFLICTING DECISIONS ON THAT
ISSUE AMONG THE COURTS IN WHICH GYPSUM HAD BROUGHT SUIT. 

LIKEWISE WE CONCLUDE THAT THERE IS NO BASIS FOR DISTURBING THE
DISTRICT COURT'S DETERMINATIONS THAT PROSECUTION OF COUNTS I AND II,
BASED ON THE OLD LICENSE AGREEMENTS, WAS NOT PERMISSIBLE UNDER THE 1951
DECREE, (FN20) BUT THAT ITS TERMS DID NOT REACH THE QUANTUM MERUIT AND
INFRINGEMENT COUNTS.   (FN21) 

THE OUTCOME OF THIS APPEAL THEN TURNS ON WHETHER THE DISTRICT COURT
WAS RIGHT IN HOLDING AS A MATTER OF LAW THAT GYPSUM WAS BARRED FROM ANY
KIND OF RECOVERY FOR THE PENDENTE LITE USE OF ITS PATENTS BECAUSE OF
THEIR UNPURGED MISUSE.  IT IS NOW, OF COURSE, FAMILIAR LAW THAT THE
COURTS WILL NOT AID A PATENT OWNER WHO HAS MISUSED HIS PATENTS TO
RECOVER ANY OF THEIR EMOLUMENTS ACCRUING DURING THE PERIOD OF MISUSE OR
THEREAFTER UNTIL THE EFFECTS OF SUCH MISUSE HAVE BEEN DISSIPATED, OR
"PURGED" AS THE CONVENTIONAL SAYING GOES.  MORTON SALT CO. V. G.S.
SUPPIGER CO., 314 U.S. 488; B.B. CHEMICAL CO. V. ELLIS, 314 U.S. 495;
EDWARD KATZINGER CO. V. CHICAGO METALLIC MFG. CO., 329 U.S. 394;
MACGREGOR V. WESTINGHOUSE ELECTRIC & MFG. CO. 329 U.S. 402; MERCOID
CORP. V. MINNEAPOLIS HONEYWELL REGULATOR CO., 320 U.S. 680.  THE RULE
IS AN EXTENSION OF THE EQUITABLE DOCTRINE OF "UNCLEAN HANDS" TO THE
PATENT FIELD.  IN TERMS OF THIS CASE THIS MEANS THAT GYPSUM MAY NOT
RECOVER FROM THESE APPELLEES FOR THEIR USE OF ITS PATENTS BETWEEN
FEBRUARY 1, 1948, AND MAY 15, 1951, IF GYPSUM HAS BEEN GUILTY OF MISUSE
OF THE PATENTS SINCE 1948, OR IF THE ORIGINAL MISUSE FOUND IN THE
ANTITRUST LITIGATION REMAINED UNPURGED.  THIS ISSUE, OF COURSE,
INVOLVES ESSENTIALLY A QUESTION OF FACT.  AND SINCE THE RECORD IS
BARREN OF ANY FACTS WITH RESPECT TO THE SITUATION EXISTING IN THE
GYPSUM INDUSTRY SINCE 1941, WE THINK THAT THE DISTRICT COURT ERRED IN
HOLDING PURELY AS A MATTER OF LAW THAT AN UNPURGED MISUSE HAD BEEN
SHOWN. 

                                      II. 

PUTTING ASIDE THE TWO CONTRACT COUNTS, THE ENJOINING OF WHICH WE HAVE
HELD WAS SUFFICIENTLY SUPPORTED BY THE COURT'S FINDING THAT THEY COULD
NOT BE MAINTAINED UNDER THE TERMS OF THE 1951 DECREE, THERE ARE THREE
ASPECTS TO THE LOWER COURT'S HOLDING AS TO THE REMAINING COUNTS. 
FIRST, THE COURT HELD THOSE COUNTS BARRED BECAUSE GYPSUM HAD ENGAGED IN
"FRESH" PATENT MISUSE - MISUSE UNRELATED TO THE ORIGINAL ANTITRUST
LITIGATION.  SECONDLY, IT WAS HELD THAT SINCE THE "OLD" MISUSE
ADJUDICATED IN THE ANTITRUST PROCEEDING HAD CONTINUED UNPURGED,
RECOVERY MUST IN ANY CASE BE BARRED.   (FN22)  AND FINALLY, THE COURT
HELD THAT IRRESPECTIVE OF PURGE, THE "OLD" MISUSE ITSELF WAS SUFFICIENT
TO BAR THE PATENT INFRINGEMENT COUNT.  WE DISCUSS EACH OF THESE
HOLDINGS IN TURN. 

                                       A. 

THE "FRESH" MISUSE FOUND BY THE LOWER COURT WAS SIMPLY THE FACT OF
THE INCLUSION OF COUNTS I AND II IN THE 1953 SUITS.  THESE COUNTS
SOUGHT RECOVERY OF ROYALTIES UNDER THE ILLEGAL LICENSING AGREEMENTS. 
SUCH INCLUSION, THE COURT HELD, WAS A RENEWED ATTEMPT TO ENFORCE THESE
ILLEGAL AGREEMENTS, AND AS SUCH SHOULD BE REGARDED AS A NEW MISUSE OF
THE PATENTS WHICH BARRED RECOVERY UNDER THE OTHER COUNTS AS WELL. 
(FN23)  WE DO NOT AGREE. 

THE FIVE COUNTS IN GYPSUM'S COMPLAINTS WERE MERELY ALTERNATIVE LEGAL
THEORIES FOR REACHING A SINGLE END, NAMELY, RECOVERY FOR THE PENDENTE
LITE USE OF GYPSUM'S PATENTS.  HAD THE COMPLAINTS DECLARED ONLY UPON
THE QUANTUM MERUIT AND INFRINGEMENT COUNTS THE MERE BRINGING OF THE
SUITS COULD THEN HARDLY HAVE BEEN REGARDED AS FRESH MISUSE, EVEN THOUGH
RECOVERY MIGHT BE DEFEATED BY SHOWING SOME INDEPENDENT UNPURGED MISUSE
OF THE PATENTS INVOLVED.  FOR AS THE LOWER COURT RECOGNIZED, SUCH
RECOVERY BY WAY OF QUANTUM MERUIT OR DAMAGES FOR INFRINGEMENT WAS NOT
"EXPRESSLY OR IMPLIEDLY" TOUCHED BY THE TERMS OF THE 1951 DECREE. 
GYPSUM EXPLAINS THE INCLUSION OF THE TWO CONTRACT COUNTS AS
PRECAUTIONARY PLEADING TO FEND AGAINST THE POSSIBILITY THAT THE
DEFENDANTS, IF SUED ONLY FOR QUANTUM MERUIT AND INFRINGEMENT, MIGHT SET
UP THE LICENSE AGREEMENTS IN DEFENSE.  (FN24)  SUCH ALTERNATIVE
PLEADING IS EXPRESSLY SANCTIONED BY THE FEDERAL RULES OF CIVIL
PROCEDURE, RULE 8, AND, EVEN THOUGH THAT DEFENSE HAS TURNED OUT TO BE
UNTENABLE IN LIGHT OF THE LOWER COURT'S FINDINGS, WE THINK THAT IT
DISTORTS THE DOCTRINE OF PATENT MISUSE TO HOLD THAT RECOURSE TO THIS
METHOD OF PLEADING HERE VITIATED THE OTHER COUNTS OF THE COMPLAINTS. 
(FN25) 

MOREOVER, IN VIEW OF WHAT TRANSPIRED BEFORE THE ANTITRUST COURT IN
THE HEARINGS RELATING TO THE SETTLEMENT OF THE 1949 DECREE, WE ARE BY
NO MEANS SATISFIED THAT GYPSUM WAS NOT ENTITLED TO A BONA FIDE GUESS,
AT LEAST AS A MATTER OF ALTERNATIVE PLEADING, THAT THE DECREE WOULD NOT
BE INTERPRETED AS BARRING THE COLLECTION OF THESE INTERIM ROYALTIES. 
AT THOSE HEARINGS COUNSEL FOR ONE OF THE DEFENDANTS, CELOTEX, WITHOUT
REMONSTRANCE BY EITHER OF THESE RESPONDENTS, STATED: 

"IN ORDER THAT UNITED STATES GYPSUM WILL HAVE NO MISUNDERSTANDING OF
MY POSITION, I WANT THEM TO KNOW THAT MY SUGGESTION (THAT THE DECREE
SHOULD DECLARE THE LICENSES 'ILLEGAL, NULL AND VOID') IS IN NO SENSE
BASED ON ANY HOPE OR DESIRE ON MY PART TO GET OUT OF ANY LICENSE FEES
DURING ANY INTERIM PERIOD, AND IF WE CAN AGREE  ...  AS FAR AS MY
CLIENT IS CONCERNED, WE ARE WILLING TO LET THE ROYALTY RATE (OF THE NEW
COMPULSORY LICENSES), WHATEVER IT IS, AGREED UPON APPLY BACK TO THE
TIME WHEN WE CEASED PAYING ROYALTIES.  I JUST WANT TO MAKE IT CLEAR TO
ALL THAT WE ARE NOT ATTEMPTING BY THIS DECLARATION OF ILLEGALITY OF
THEM TO FIND SOME WAY OF AVOIDING THE LICENSE FEES WHICH DURING THIS
(LITIGATION) NONE OF US HAVE PAID."    FURTHER, BOTH THE GOVERNMENT AND
THE OTHER CO-DEFENDANTS AT THAT TIME SEEM TO HAVE REGARDED THE
"ILLEGAL, NULL AND VOID" PROVISIONS OF THE DECREE AS SIMPLY THE
EQUIVALENT OF "CANCELLATION" OF THE LICENSES.  IN VIEW OF THE NARROW
ADJUDICATION OF VIOLATION BY THIS COURT, INFRA, P. 470, WE CANNOT SAY
THAT GYPSUM COULD NOT HAVE REASONABLY ENTERTAINED THE BELIEF THAT THE
PRICE FIXING PROVISIONS OF THE LICENSE AGREEMENTS WOULD ULTIMATELY BE
HELD SEPARABLE FROM THE BASIC UNDERTAKING TO PAY ROYALTIES.  INDEED,
THE NEW LICENSES, AUTHORIZED BY THE DECREE, WHICH OMITTED THE PRICE
FIXING CLAUSES, CARRIED THE SAME ROYALTY RATE ON PRODUCTS MADE UNDER
THE PATENTS. 

WE CONCLUDE THAT IN THE CIRCUMSTANCES PRESENT HERE IT WAS ERROR TO
REGARD THE INCLUSION OF THE CONTRACT COUNTS AS CONSTITUTING A "FRESH"
PATENT MISUSE ON GYPSUM'S PART. 

                                      B. 

WE COME NEXT TO THE HOLDING THAT THE "OLD" MISUSE, FOUND IN THE
ANTITRUST PROCEEDING, CONTINUED UNPURGED THROUGH THE 1948-1951 PERIOD. 
AND HERE WE ARE MET IMMEDIATELY BY THE FACT THAT THE RECORD BEFORE THE
ANTITRUST COURT IS COMPLETELY BARE OF ANY FACTS RELATING TO THIS
PERIOD, OR INDEED ANY PERIOD AFTER 1941.  FOR THE GOVERNMENT'S PROOF IN
THE ANTITRUST CASE, PRESENTED FROM 1940 TO 1944, CONCERNED THE GYPSUM
INDUSTRY PRIOR TO AND UNTIL 1941, AND NO FURTHER EVIDENCE HAS EVER BEEN
INTRODUCED INTO ANY OF THESE LITIGATIONS.  WE THUS KNOW LITERALLY
NOTHING ABOUT THE STATE OF THE GYPSUM INDUSTRY BETWEEN 1948, WHEN THIS
COURT, ON EVIDENCE NOT EXTENDING BEYOND 1941, FIRST HELD THAT THERE HAD
BEEN AN ANTITRUST VIOLATION, AND 1951.  HOW, THEN, CAN WE ASSUME THAT
THIS EARLIER VIOLATION, ADJUDICATED FOR THE FIRST TIME IN 1948,
CONTINUED THEREAFTER? 

THE ANSWER TO THIS QUESTION DEPENDS ON THE NATURE AND EXTENT OF THAT
VIOLATION.  ACCORDING TO GYPSUM, THE ONLY ILLEGALITY EVER ADJUDICATED
WAS THE FIXING OF PRICES ON GYPSUM MATERIALS UNDER THE INDUSTRY-WIDE
UNIFORM PRICE FIXING CLAUSES OF PATENT LICENSES WHICH WERE FOUND TO
HAVE BEEN THE PRODUCT OF CONCERTED ACTION BETWEEN GYPSUM AND ITS CO
DEFENDANTS.  IN OTHER WORDS, GYPSUM, RELYING ON THE 1949 DECREE, WHICH
FOLLOWED THIS COURT'S FIRST DECISION, AND ITS UNDERLYING FINDINGS,
(FN26) ARGUES THAT THE MAINTENANCE OF UNIFORM PATENT LICENSES WITH
PRICE FIXING CLAUSES WAS THE ONLY PATENT MISUSE EVER FOUND.  IT THEN
POINTS OUT THAT IT OFFERED TO PROVE BELOW THAT PRICE FIXING IN THE
INDUSTRY STOPPED IN 1941, AND THAT THE LICENSES WERE RESCINDED IN
1948.  ADD TO THIS THE FACT THAT THE 1949 DECREE, AND AGAIN THIS
COURT'S 1950 INTERLOCUTORY DECREE, ENJOINED GYPSUM FROM ENFORCING THESE
LICENSES, AND, SAYS GYPSUM, THE INFERENCE ARISES THAT THE ONLY PATENT
MISUSE EVER ADJUDICATED HAD CEASED BY 1948 - AN INFERENCE AT LEAST
SUFFICIENT TO ALLOW THE ISSUE TO GO TO TRIAL ON THE FACTS. 

ACCORDING TO APPELLEES NATIONAL AND CERTAIN-TEED, HOWEVER, THE
ADJUDICATION OF MISUSE IN THE ANTITRUST PROCEEDING WAS MUCH BROADER,
ENCOMPASSING THE REGIMENTATION OF THE ENTIRE GYPSUM INDUSTRY, THE
RESTRAINT OF COMMERCE IN UNPATENTED GYPSUM PRODUCTS, THE ELIMINATION OF
JOBBERS, AND THE STANDARDIZATION OF TRADE PRACTICES THROUGHOUT THE
INDUSTRY.  THIS BROAD VIEW OF THE CHARACTER OF THE ANTITRUST VIOLATION
RESTS UPON THIS COURT'S 1950 DECISION, WHICH HELD THE 1949 DECREE TOO
NARROW AND ALLOWED THE GOVERNMENT THE BROADER RELIEF EMBODIED IN THE
1951 DECREE.  (FN27)  APPELLEES ARGUE THAT THE FACT THAT THIS COURT
FELT IT NECESSARY TO BROADEN THE 1949 DECREE INVOLVED BY NECESSITY AN
ADJUDICATION OF BROAD PATENT MISUSE, MISUSE NOT PROHIBITED BY THE 1949
DECREE AND THEREFORE LEFT UNPURGED BY IT.  IN OTHER WORDS, THE ARGUMENT
RUNS, THE BROADENING OF THE DECREE BY THIS COURT NECESSARILY INVOLVED A
HOLDING THAT GYPSUM WAS GUILTY OF VIOLATIONS NOT PROSCRIBED BY THE
ORIGINAL DECREE, VIOLATIONS WHICH EXISTED UNPURGED DURING PART OR ALL
OF THE 1948-1951 PERIOD, SINCE THEY WERE FIRST ADJUDICATED BY THIS
COURT IN 1950 AND PRESUMPTIVELY CONTINUED UNTIL 1951, WHEN THEY WERE
FINALLY DEALT WITH BY THE 1951 DECREE. 

APPELLEES' ARGUMENT IS INGENIOUS, BUT INCORRECT.  THE COURSE OF
DECISIONS IN THE ANTITRUST LITIGATION CLEARLY SHOWS THAT THE ONLY
MISUSE EVER ADJUDICATED WAS THAT ARISING FROM THE UNIFORM PRICE FIXING
PROVISIONS OF THE LICENSE AGREEMENTS.  IN THE ORIGINAL SUIT THE ONLY
UNDISPUTED ISSUE OF FACT WAS THAT GYPSUM HAD GIVEN ITS COMPETITORS
UNIFORM PATENT LICENSES CONTAINING A PRICE FIXING CLAUSE.  THE
GOVERNMENT ALSO CHARGED GYPSUM WITH A VARIETY OF OTHER ABUSES,
INCLUDING PRICE FIXING ON UNPATENTED ARTICLES, ELIMINATION OF JOBBERS,
AND STANDARDIZATION OF TRADE PRACTICES.  ALL OF THESE CHARGES WERE PUT
IN ISSUE BY GYPSUM.  ON THE APPEAL FROM THE ORIGINAL DISMISSAL OF THE
PROCEEDINGS, THIS COURT HELD THAT THE UNIFORM PRICE FIXING LICENSES
CONSTITUTED A PER SE ANTITRUST VIOLATION, AND ALSO THAT THE
GOVERNMENT'S EVIDENCE AS TO THE OTHER MATTERS CONSTITUTED IN PRIMA
FACIE CASE OF ADDITIONAL VIOLATION.  (FN28)  ON REMAND, THE DISTRICT
COURT, INSTEAD OF GOING INTO A FACTUAL TRIAL OF THESE OTHER MATTERS,
GRANTED SUMMARY JUDGMENT ON THE PRICE FIXING VIOLATION.  THIS LEFT ALL
OF THE OTHER MATTERS STILL AT ISSUE.  THEY CONTINUED TO REMAIN AT ISSUE
AFTER THE ENSUING APPEALS TO THIS COURT, FOR IN AFFIRMING THE SUMMARY
JUDGMENT (FN29) AND BROADENING THE 1949 DECREE, (FN30) THIS COURT MADE
IT CLEAR THAT IT WAS PROCEEDING SOLELY ON THE BASIS OF THE NARROW
ANTITRUST VIOLATION FOUND BY THE DISTRICT COURT:  (FN31) 

"WE AGREE WITH A STATEMENT MADE BY COUNSEL FOR THE GOVERNMENT IN
ARGUMENT BELOW THAT AS A 'MATTER OF FORMULATING THE DECREE' MANY FACTS
OFFERED TO BE PROVEN WOULD HAVE EFFECT UPON THE CONCLUSION OF A COURT
AS TO THE DECREE'S TERMS.  HOWEVER, WE READ THE PRELIMINARY STATEMENT
OF THE DISTRICT COURT ...  AS AN ADJUDICATION OF VIOLATION OF THE
SHERMAN ACT BY THE ACTION IN CONCERT OF THE DEFENDANTS THROUGH THE
FIXED-PRICE LICENSES, ACCEPTING AS TRUE THE UNDERLYING FACTS IN
DEFENDANTS' PROOF BY PROFFER.  THE TRIAL JUDGES UNDERSTOOD THE SUMMARY
JUDGMENT TO BE, AS JUDGE STEPHENS SAID, 'LIMITED TO THAT ONE UNDISPUTED
QUESTION.'  JUDGE GARRETT AND JUDGE JACKSON AGREED.  THAT CONCLUSION
ENTITLED THE GOVERNMENT ONLY TO RELIEF BASED ON THAT FINDING AND THE
PROFFERED FACTS.  ON THAT BASIS WE DISMISSED UNITED STATES GYPSUM'S
APPEAL FROM THE DECREE, AND ON THAT BASIS WE EXAMINE THE GOVERNMENT'S
OBJECTION TO THE DECREE. 

     *         *         *         *     * 

"A DECREE IS NOT LIMITED TO PROHIBITION OF THE PROVEN MEANS BY WHICH
THE EVIL WAS ACCOMPLISHED, BUT MAY RANGE BROADLY THROUGH PRACTICES
CONNECTED WITH ACTS ACTUALLY FOUND TO BE ILLEGAL  ...  . 

"  ...  WE TURN THEN TO THE GOVERNMENT'S PROPOSALS FOR MODIFICATION
OF THE DECREE ON THE ASSUMPTION THAT ONLY A VIOLATION THROUGH CONCERTED
INDUSTRY LICENSE AGREEMENTS HAS BEEN PROVEN, BUT RECOGNIZING, AS IS
CONCEDED BY DEFENDANTS, THAT RELIEF, TO BE EFFECTIVE, MUST GO BEYOND
THE NARROW LIMITS OF THE PROBEN VIOLATION."  340 U.S., AT 87-89, 90. 
(FN32) 

THUS WE SEE THAT THE ONLY PATENT MISUSE THAT HAS EVER BEEN
ESTABLISHED IN THIS LONG-DRAWN-OUT LITIGATION IS CONCERTED PRICE FIXING
UNDER THE FORMER PATENT LICENSES, AND THAT THE 1950 HOLDING OF THIS
COURT WAS NOT AN ADJUDICATION OF OTHER VIOLATIONS BUT ONLY AN
APPLICATION OF THE WELL-KNOWN PRINCIPLE THAT RELIEF IN ANTITRUST CASES
MAY RANGE BEYOND THE NARROW AREA OF PROVEN VIOLATIONS.  NOTHING,
THEREFORE, IN THE BROADENING OF THE DECREE SUPPORTS THE INFERENCE THAT
THE ACTS PROHIBITED THEREIN AND LEFT OPEN IN THE 1949 DECREE CONTINUED
IN THE PENDENTE LITE PERIOD OR, IN FACT, HAD EVER TAKEN PLACE.  PERHAPS
GYPSUM DID ENGAGE IN BROAD REGIMENTATION OF THE INDUSTRY, AS CHARGED IN
THE GOVERNMENT'S 1940 COMPLAINT, AND PERHAPS SUCH MISUSE OR ITS EFFECTS
CONTINUED THROUGH 1951.  BUT THERE IS NOTHING IN THIS RECORD TO SHOW
THAT ANY SUCH HYPOTHESIS IS TRUE, AND NO PART OF IT HAS EVER BEEN
PROVED.  THE QUESTION IS ONE OF FACT, AND GYPSUM IS ENTITLED TO GO TO
TRIAL ON IT. 

NOR IS IT ENOUGH TO SUSTAIN THE JUDGMENT BELOW TO SAY, AS APPELLEES
DO, THAT THE CONCEDED "OLD" MISUSE, CONSISTING OF INDUSTRY-WIDE PRICE
FIXING THROUGH UNIFORM PATENT LICENSES, SHOULD BE PRESUMED TO HAVE
CONTINUED UNPURGED INTO THE 1948-1951 PERIOD.  THE RECORD SHOWS,
WITHOUT DISPUTE SO FAR, THAT FOR SEVEN YEARS BEFORE THE BEGINNING OF
THE 1948-1951 PERIOD GYPSUM HAD NOT ENGAGED IN PRICE FIXING, AND THAT
FOR TWO OF THOSE THREE YEARS PRICE FIXING HAD BEEN UNDER INJUNCTION. 
THESE FACTORS RAISED A SUFFICIENT INFERENCE OF PURGE PRIOR TO THE
CRITICAL PERIOD TO ENTITLE GYPSUM TO GO TO TRIAL ON THE POINT AND TO
PREVENT THE COURT FROM GRANTING WHAT IN EFFECT WAS SUMMARY JUDGMENT. 
CF. UNITED STATES V. OREGON STATE MEDICAL SOCIETY, 343 U.S. 326.  NOR
DO WE THINK THIS CONCLUSION IS OVERCOME BY THE LOWER COURT'S FINDINGS
THAT THE "FIVE ACTS" OF PURGE OFFERED BY GYPSUM WERE NOT SUFFICIENT TO
ESTABLISH PURGE.  WE EXPRESS NO OPINION UPON THE MERITS OF THESE
FINDINGS, FOR THEIR SUFFICIENCY CAN HARDLY BE JUDGED IN ISOLATION FROM
THE FACTS AS TO COMPETITIVE CONDITIONS IN THE GYPSUM INDUSTRY DURING
THE 1941-1951 PERIOD, ON WHICH THE RECORD IS SILENT.  AND OTHER ALLEGED
ANTITRUST VIOLATIONS ARE NOT NOW AVAILABLE TO APPELLEES AS ACTS OF
MISUSE, FOR AS TO THEM GYPSUM HAS NOT YET HAD ITS DAY IN COURT. 

WE CONCLUDE, THEREFORE, THAT THE JUDGMENT BELOW CANNOT BE SUPPORTED
ON THE BASIS OF THE CLAIMED UNPURGED "OLD" MISUSE. 

                                       C. 

WE PASS LASTLY TO THE LOWER COURT'S HOLDING THAT THE "OLD" MISUSE,
WITHOUT REGARD TO PURGE, BARRED THE INFRINGEMENT COUNT TO GYPSUM'S
SUITS.  IN EFFECT THIS HOLDING WAS THAT, BECAUSE "OF THE PRACTICAL AND
LEGAL SITUATION," PROSCRIPTION OF THIS COUNT SHOULD BE ADDED BY
RELATION BACK, AS IT WERE, TO THE RELIEF ALREADY ACCORDED BY THE 1951
DECREE.  ADMITTEDLY SUCH RELIEF WAS NEITHER OBTAINED NOR SOUGHT BY THE
GOVERNMENT IN EITHER THE 1949 OR 1951 DECREE PROCEEDINGS.  TO BE SURE
ONE OF THE PRAYERS FOR RELIEF IN THE GOVERNMENT'S ANTITRUST COMPLAINT
IN 1940 HAD BEEN THAT THE DEFENDANTS SHOULD BE ENJOINED FROM BRINGING
ANY ACTION FOR INFRINGEMENT OF ANY OF THE PATENTS INVOLVED OR FROM
ATTEMPTING TO COLLECT IN ANY WAY ROYALTIES OR FEES FOR THEIR USE UNTIL
ALL MISUSE HAD BEEN ABANDONED AND ITS CONSEQUENCES DISSIPATED.  IN THE
SUBSEQUENT 1949 AND 1951 DECREE AND APPELLATE PROCEEDINGS, HOWEVER,
THIS ITEM OF PROPOSED RELIEF WAS NEVER ADVERTED TO, MUCH LESS PRESSED
UPON THE COURTS.  AND EVEN IN THE 1953-1954 MODIFICATION PROCEEDINGS,
AND NOW, THE GOVERNMENT DOES NOT CONTEND THAT GYPSUM IS PRECLUDED FROM
MAINTAINING THE INFRINGEMENT COUNT.  THE CONCLUSION SEEMS INESCAPABLE
THAT THE GOVERNMENT'S ORIGINAL REQUEST FOR SUCH RELIEF WAS IN EFFECT
WITHDRAWN.  IN THIS STATE OF AFFAIRS WE THINK THIS RELIEF SHOULD NOT
HAVE BEEN ADDED TO THE DECREE IN 1954, IN THE ABSENCE OF PROOF OF
INTERVENING CIRCUMSTANCES INDICATING ITS NEED IN THE PUBLIC INTEREST. 
CF. HUGHES V. UNITED STATES, 342 U.S. 353.  THERE WAS NO SUCH PROOF,
AND WITHOUT IT THE PROSCRIPTION OF THE INFRINGEMENT COUNT AMOUNTED TO
THE IMPOSITION OF AN UNWARRANTED PENALTY ON GYPSUM. 

NOR DO WE THINK THAT ANYTHING IN THE HARTFORD-EMPIRE CASES, 323 U.S.
386, 324 U.S. 570, TO WHICH THE LOWER COURT ATTACHED MUCH WEIGHT,
JUSTIFIES WHAT WAS DONE HERE.  THE BASIC DIFFERENCE BETWEEN HARTFORD
AND THIS CASE IS THAT IN HARTFORD THE INJUNCTION AGAINST INFRINGEMENT
SUITS ON HARTFORD'S MISUSED PATENTS WAS PART OF THE ORIGINAL RELIEF
GRANTED THE GOVERNMENT, WHEREAS HERE THAT RELIEF WAS ADDED, WITHOUT THE
TAKING OF ANY EVIDENCE AS TO JUSTIFYING INTERVENING CIRCUMSTANCES, SOME
FIVE YEARS AFTER THE ORIGINAL DECREE WAS ENTERED IN THE DISTRICT COURT,
AND THREE YEARS AFTER ITS ENLARGEMENT PURSUANT TO THE 1950 DECISION OF
THIS COURT, (FN33) WHICH MADE NO MENTION OF THIS TYPE OF RELIEF. 

MOREOVER, THE FACTORS JUSTIFYING SUCH RELIEF IN HARTFORD WERE QUITE
DIFFERENT FROM THOSE INVOLVED HERE, IN THAT THE LITIGATED FINDINGS OF
FACT AS TO HARTFORD'S VIOLATION OF THE ANTITRUST LAWS WERE MUCH BROADER
THAN ANYTHING FOUND HERE.  SEE SUPRA, P. 470.  BEYOND THIS, IN HARTFORD
ONLY INFRINGEMENT SUITS AGAINST NONDEFENDANTS WERE ENJOINED, AND NOT,
AS HERE, SUITS AGAINST CO-DEFENDANTS; AND DESPITE THE BREADTH OF
HARTFORD'S VIOLATIONS, THIS COURT HELD THAT HARTFORD WAS ENTITLED TO
QUANTUM MERUIT COMPENSATION FOR THE PENDENTE LITE USE OF ITS PATENTS
UNLESS FURTHER VIOLATIONS OF THE ANTITRUST LAWS DURING THAT PERIOD WERE
SHOWN.  NO SUCH VIOLATIONS ON GYPSUM'S PART WERE SHOWN OR CLAIMED BY
THE GOVERNMENT OR APPELLEES, EXCEPT FOR THE INCLUSION OF THE CONTRACT
COUNTS IN GYPSUM'S SUITS, A CONTENTION WHICH HAS ALREADY BEEN MET.  AND
ALTHOUGH THE COURT IN HARTFORD STRUCK DOWN ROYALTY-FREE COMPULSORY
LICENSING AS PART OF THE RELIEF, THE DISTRICT COURT HERE IN EFFECT HELD
THESE APPELLEES ENTITLED TO THREE YEARS' FREE USE OF GYPSUM'S PATENTS. 
WE THUS FIND NO PARALLEL BETWEEN THIS CASE AND HARTFORD.  (FN34) 

OUR CONCLUSIONS THEN ARE THESE:  THE ENJOINING OF COUNTS I AND II OF
GYPSUM'S IOWA SUITS WAS PROPER, AND UPON REMAND THE DISTRICT COURT MAY,
BY APPROPRIATE MODIFICATION OF THE DECREE OF MAY 15, 1951, OR
OTHERWISE, REQUIRE GYPSUM TO DISCONTINUE AND DISMISS SUCH COUNTS WITH
PREJUDICE.  THE ENJOINING OF COUNTS III, IV AND V OF THOSE SUITS WAS
NOT JUSTIFIED UPON THIS RECORD, AND AS TO THEM THE CASE SHOULD BE
REMANDED TO THE DISTRICT COURT FOR THE TAKING OF EVIDENCE UPON THE
ISSUES OF MISUSE AND PURGE AS THEY MAY RELATE TO THE PERIOD SINCE
FEBRUARY 1, 1948.  WE THINK IT APPROPRIATE THAT THESE ISSUES SHOULD BE
TRIED AND DISPOSED OF BY THE ANTITRUST COURT RATHER THAN THE IOWA
COURT, BOTH BECAUSE OF REASONS ALREADY GIVEN, SUPRA, PP. 463-464, AND
BECAUSE OF THE ANTITRUST COURT'S FAMILIARITY WITH WHAT HAS OCCURRED IN
THESE PROTRACTED LITIGATIONS.  (FN35)  HOWEVER, SHOULD THE ANTITRUST
COURT CONCLUDE THAT GYPSUM IS NOT BARRED FROM RECOVERY ON COUNTS III,
IV OR V BY REASON OF UNPURGED PATENT MISUSE, WE THINK THAT THE TRIAL
AND DISPOSITION OF ALL OTHER ISSUES, INCLUDING ANY DEFENSE OF PATENT
INVALIDITY, SHOULD THEN TAKE PLACE IN THE DISTRICT COURTS IN WHICH THE
TWO SUITS ARE PENDING.  THERE IS NO REASON WHY THE THREE-JUDGE COURT
SHOULD BE BURDENED WITH SUCH ISSUES. 

ACCORDINGLY, WE REVERSE THE JUDGMENT BELOW AND REMAND THE CASE TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  THROUGHOUT THIS OPINION UNITED STATES GYPSUM COMPANY WILL BE
REFERRED TO AS "GYPSUM," NATIONAL GYPSUM COMPANY AS "NATIONAL," AND
CERTAIN-TEED PRODUCTS CORPORATION AS "CERTAIN-TEED." 

FN2  THE SUITS AGAINST NATIONAL AND CERTAIN-TEED WERE BROUGHT IN THE
NORTHERN DISTRICT OF IOWA.  THE OTHER TWO SUITS WERE BROUGHT IN THE
DISTRICT OF NEW JERSEY, AGAINST NEWARK PLASTER COMPANY, AND IN THE
SOUTHERN DISTRICT OF NEW YORK, AGAINST EBSARY GYPSUM COMPANY.  THESE
LATTER SUITS HAVE BEEN SETTLED AND ARE NOT BEFORE US. 

FN3  26 STAT. 209 (1890), AS AMENDED, 15 U.S.C. SECS. 1-3. 

FN4  67 F. SUPP. 397. 

FN5  333 U.S. 364. 

FN6  THE OPINION OF THE COURT, AND THE DISSENTING OPINION OF THE LATE
JUDGE STEPHENS, ARE NOT OFFICIALLY REPORTED.  THEY APPEAR AT PP. 137
140, 478, OF THE RECORD ON THIS APPEAL. 

FN7  339 U.S. 959. 

FN8  339 U.S. 960. 

FN9  340 U.S. 76. 

FN10  339 U.S. 960. 

FN11  THE SIGNIFICANCE OF THESE VARIOUS HOLDINGS AS IT BEARS UPON THE
ISSUES IN THE PRESENT CONTROVERSY IS DEALT WITH LATER.  INFRA, PP. 468
473. 

FN12  IN THE CASE OF NATIONAL AND CERTAIN-TEED THE DEFAULT PERIOD
BEGAN WITH THE FEBRUARY 1, 1948 ROYALTIES, DUE MARCH 20, 1948. 

FN13  THE LOWER COURT, REGARDING COUNT III AS DECLARING UPON A
CONTRACT IMPLIED IN LAW, DESCRIBED THAT COUNT AS BEING FOR "INDEBITATUS
ASSUMPSIT."  THE APPELLANT SAYS IT WAS FOR "QUANTUM MERUIT."  AS
NOTHING HERE TURNS ON THE CHARACTERIZATION, WE SHALL REFER TO BOTH
COUNTS III AND IV AS "THE QUANTUM MERUIT" COUNTS. 

FN14  THE IOWA COURT, UPON MOTIONS BY NATIONAL AND CERTAIN-TEED,
STAYED ALL PROCEEDINGS IN THE TWO ACTIONS PENDING THE DETERMINATION OF
THE ANTITRUST COURT NOW UNDER REVIEW. 

FN15  THE GOVERNMENT TAKES THE SAME POSITION IN THIS COURT. 

FN16  124 F. SUPP. 573.  JUDGE COLE DISSENTED ON THE JURISDICTIONAL
GROUND.  124 F. SUPP.  598.  ON DECEMBER 9, 1954, THE DISTRICT COURT
DENIED RECONSIDERATION, RECORD, P. 1136; AND ON JUNE 30, 1955, IT
DENIED GYPSUM'S MOTION FOR A NEW TRIAL.  134 F. SUPP. 69. 

FN17  THE COURT ALSO HELD THAT COUNT III SHOULD BE BARRED BECAUSE IT
WAS "BUT A LEFT-HANDED, INDIRECT METHOD FOR RECOVERING SUCH
ROYALTIES."  THE COURT DID NOT ELABORATE ON THIS, BUT SINCE IT HELD
THAT THIS COUNT WAS NOT "EXPRESSLY OR IMPLIEDLY" COVERED BY THE 1951
DECREE WE THINK THIS ADDITIONAL GROUND REQUIRES NO SEPARATE
DISCUSSION. 

FN18  THE OPERATIVE PART OF THE DECREE READS AS FOLLOWS:  "DEFENDANT
UNITED STATES GYPSUM COMPANY IS HEREBY ORDERED AND DIRECTED TO
DISCONTINUE AND TO DISMISS, WITH PREJUDICE TO UNITED STATES GYPSUM
COMPANY, ITS PENDING ACTIONS AS FOLLOWS:  AGAINST NATIONAL GYPSUM
COMPANY, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF IOWA; AGAINST CERTAIN-TEED PRODUCTS CORPORATION, IN THE SAME
DISTRICT COURT  ...  ." 

FN19  ARTICLE X READS:  "JURISDICTION OF THIS CAUSE, AND OF THE
PARTIES HERETO, IS RETAINED BY THE COURT FOR THE PURPOSE OF ENABLING
ANY OF THE PARTIES TO THIS DECREE, OR ANY OTHER PERSON, FIRM OR
CORPORATION THAT MAY HEREAFTER BECOME BOUND THEREBY IN WHOLE OR IN
PART, TO APPLY TO THIS COURT AT ANY TIME FOR SUCH ORDERS,
MODIFICATIONS, VACATIONS OR DIRECTIONS AS MAY BE NECESSARY OR
APPROPRIATE (1) FOR THE CONSTRUCTION OR CARRYING OUT OF THIS DECREE,
AND (2) FOR THE ENFORCEMENT OF COMPLIANCE THEREWITH." 

FN20  ARTICLE IV OF THE 1951 DECREE HAD ADJUDICATED AS TO ALL
DEFENDANTS THAT THESE LICENSE AGREEMENTS WERE "UNLAWFUL UNDER THE
ANTITRUST LAWS OF THE UNITED STATES AND ILLEGAL, NULL AND VOID." 
ARTICLE V ENJOINED THE DEFENDANTS FROM "PERFORMING" SUCH AGREEMENTS. 
CF. CONTINENTAL WALL PAPER CO. V. LOUIS VOIGHT & SONS CO., 212 U.S.
227.  IT MIGHT BE WELL TO ADD THAT THE 1951 DECREE WOULD SIMILARLY
PREVENT THE USE OF THESE ILLEGAL AGREEMENTS AS DEFENSES BY CO
DEFENDANTS NATIONAL AND CERTAIN-TEED AGAINST THE QUANTUM MERUIT AND
INFRINGEMENT COUNTS OF GYPSUM'S SUITS. 

FN21  AS APPEARS, INFRA, P. 474, THE GOVERNMENT AT ONE TIME HAD
SOUGHT TO BAR ALL SUCH CLAIMS FOR RECOVERY ON THE PATENTS, BUT LATER IN
EFFECT ABANDONED THAT REQUEST FOR RELIEF. 

FN22  COUNTS I AND II WERE ALSO HELD BARRED ON THESE GROUNDS. 

FN23  WE ASSUME THAT IF THE INCLUSION OF COUNTS I AND II CONSTITUTED
A "FRESH" PATENT MISUSE, THE FACT THAT THEY WERE NOT ASSERTED UNTIL
1953 WOULD MAKE NO DIFFERENCE IN THEIR EFFECTIVENESS TO BAR RECOVERY
FOR THE 1948-1951 PERIOD. 

FN24  NATIONAL HAD IN FACT PLEADED THAT DEFENSE IN THE SUIT AGAINST
IT.  BUT SEE N. 20, SUPRA. 

FN25  IN VIEW OF THIS CONCLUSION IT IS UNNECESSARY TO DEAL WITH THE
CONTENTION THAT THE LOWER COURT'S HOLDING ALSO VIOLATED 35 U.S.C. SEC.
271(D). 

FN26  SEE N. 6, SUPRA. 

FN27  340 U.S. 76.  THIS RELIEF INCLUDED THE EXTENSION OF THE
INJUNCTIVE PROVISIONS TO THE ENTIRE UNITED STATES (INSTEAD OF MERELY
THE EAST) AND TO ALL GYPSUM PRODUCTS (INSTEAD OF ONLY GYPSUM BOARD),
COMPULSORY LICENSING FOR AN INDEFINITE PERIOD (INSTEAD OF FOR ONLY 90
DAYS), SUCH LICENSING TO INCLUDE AFTER-ACQUIRED (INSTEAD OF ONLY
EXISTING) PATENTS. 

FN28  333 U.S. 364. 

FN29  339 U.S. 960. 

FN30  340 U.S. 76. 

FN31  AS WE HAVE SEEN, SUPRA, PP. 460-461, THE COURT DISMISSED
GYPSUM'S APPEAL FROM THE 1949 DECREE.  339 U.S. 959. 

FN32  THAT THIS COURT'S EXPANSION OF THE 1949 DECREE DID NOT INVOLVE
A CORRESPONDING HOLDING OF BROADER VIOLATION IS ILLUSTRATED BY WHAT WAS
DONE WITH RESPECT TO THE GEOGRAPHICAL AREA COVERED BY THE DECREE.  THE
GOVERNMENT'S COMPLAINT CHARGED GYPSUM WITH VIOLATION ONLY IN THE
EASTERN PART OF THE UNITED STATES.  THERE WAS NEVER ANY CLAIM, MUCH
LESS PROOF, THAT GYPSUM ENGAGED IN ANY IMPROPER ACTIVITIES IN THE
WEST.  YET THE COURT GRANTED THE GOVERNMENT'S PRAYER THAT THE 1949
DECREE BE BROADENED TO COVER THE WHOLE UNITED STATES.  THIS WAS DONE
NOT BECAUSE IT WAS ALLEGED OR PROVED THAT GYPSUM HAD DONE ANYTHING
ILLEGAL IN THE WEST, BUT SIMPLY ON THE THEORY THAT EFFECTIVE RELIEF
REQUIRED THAT THE DECREE BE BROADER THAN THE "PROVEN VIOLATION." 

FN33  340 U.S. 76. 

FN34  NATIONAL MAKES A FURTHER CONTENTION AS TO THE QUANTUM MERUIT
COUNTS.  IT ARGUES THAT THESE COUNTS IN ANY EVENT WERE PROPERLY
PROSCRIBED BECAUSE THEY RELATED TO AN ILLEGAL TRANSACTION.  BUT THE
RULE ON WHICH NATIONAL RELIES APPLIES ONLY WHERE THE QUANTUM MERUIT
CLAIM DECLARES UPON AN IMPLIED AGREEMENT WHICH, HAD IT BEEN REDUCED TO
AN EXPRESS CONTRACT, WOULD ITSELF HAVE BEEN ILLEGAL; THAT IS, A
CONTRACT WHERE THE KIND OF CONSIDERATION MOVING BETWEEN THE PARTIES IS
WHOLLY AGAINST PUBLIC POLICY, AS, FOR EXAMPLE, A CONTRACT TO COMMIT
MURDER.  THE IMPLIED CONTRACT HERE WAS NOT OF THAT CHARACTER, FOR
CERTAINLY AN EXPRESS CONTRACT SIMPLY FOR REASONABLE COMPENSATION FOR
THE USE OF GYPSUM'S PATENTS WOULD NOT HAVE BEEN ILLEGAL. 

FN35  WE RECOGNIZE THAT THE COMPOSITION OF THE THREE-JUDGE COURT HAS
COMPLETELY CHANGED SINCE THE MAIN ANTITRUST CASE WAS TRIED.  EVEN SO,
THE PRESENT COURT HAS ACQUIRED AN INTIMATE KNOWLEDGE OF THE RECORD. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT. 

FOR MANY YEARS APPELLEES USED PATENTS BELONGING TO THE APPELLANT,
UNITED STATES GYPSUM COMPANY, UNDER CERTAIN LICENSE AGREEMENTS.  ON
MARCH 8, 1948, THIS COURT DECIDED THAT ON THE RECORD BEFORE IT THESE
LICENSE AGREEMENTS CONSTITUTED A CONSPIRACY BETWEEN GYPSUM AND ITS
LICENSEES TO VIOLATE THE SHERMAN ACT.  333 U.S. 364.  APPELLEES THEN
CEASED PAYING ROYALTIES UNDER THEIR LICENSE AGREEMENT UNTIL MAY 15,
1951, ON WHICH DATE THE UNITED STATES DISTRICT COURT RENDERED A FINAL
DECREE HOLDING THE LICENSE AGREEMENTS NULL AND VOID.  ON THIS LATTER
DATE NEW PATENT LICENSES WERE OBTAINED FROM GYPSUM WHICH DID NOT
CONTAIN THE ILLEGAL PROVISIONS AND WERE NOT PART OF A CONSPIRACY TO
VIOLATE THE SHERMAN ACT.  THIS IS A SUIT TO MAKE APPELLEES PAY FOR THE
USE OF GYPSUM'S PATENTS DURING THE PERIOD OF FEBRUARY 1, 1948, TO MAY
1951.  GYPSUM SEEKS PAYMENT IN FIVE SEPARATE COUNTS.  COUNTS ONE AND
TWO ASSERT CLAIMS UNDER THE OLD OUTLAWED LICENSE AGREEMENTS.  I AGREE
WITH THE COURT'S HOLDING THAT GYPSUM CANNOT RECOVER ON THESE COUNTS.  I
ALSO AGREE THAT THE PATENT MISUSE RULE WHICH BARS RECOVERY "IS AN
EXTENSION OF THE EQUITABLE DOCTRINE OF 'UNCLEAN HANDS' TO THE PATENT
FIELD."  I DISAGREE WITH THE COURT'S HOLDING THAT GYPSUM IS NOT BARRED
FROM ATTEMPTING TO RECOVER FOR THE USE OF ITS PATENTS DURING THE PERIOD
ON THE OTHER THREE COUNTS OF "QUANTUM MERUIT," "INDEBITATUS ASSUMPSIT,"
AND "INFRINGEMENT." 

IN DECLINING TO PERMIT GYPSUM TO RECOVER UNDER THE LICENSE AGREEMENTS
THE COURT HERE NECESSARILY DOES SO ON THE GROUND THAT THE LICENSES WERE
A PART OF AN UNLAWFUL CONSPIRACY TO VIOLATE THE SHERMAN ACT.  THAT
CONSPIRACY EXISTED AS LONG AS THE ILLEGAL AGREEMENTS REMAINED IN
EXISTENCE.  (FN1)  AND THE AGREEMENTS COULD AND DID CONTINUE TO EXIST
WHETHER OR NOT THEIR INSEPARABLE PARTS, (FN2) SUCH AS THE PRICE-FIXING
PROVISIONS, WERE ENFORCED FROM TIME TO TIME.  ANY ATTEMPT TO ENFORCE
DIRECTLY OR INDIRECTLY ANY PART OF THE ILLEGAL AGREEMENTS SHOWS THAT
THE AGREEMENTS AND THE CONSPIRACY WERE STILL IN EXISTENCE.  THE PRESENT
HOLDING CLEARLY INDICATES THEIR CONTINUING EXISTENCE DURING THE PERIOD
IN QUESTION.  THE MAJORITY APPEARS TO RECOGNIZE THIS COEXISTENCE OF THE
LICENSE AGREEMENTS AND THE CONSPIRACY WHEN IT BARS A RECOVERY FOR THE
USE OF THE PATENTS SO LONG AS THE SUITS ARE FOR "ROYALTIES" UNDER THE
CONTRACTS.  BUT UNDER THE COURT'S HOLDING PERSONS WHO MISUSE THEIR
PATENTS HEREAFTER, AND WHO COULD NOT, UNDER OUT PRIOR CASES, RECOVER
COMPENSATION FOR PATENT USE BECAUSE OF THEIR ILLEGAL AGREEMENTS, MAY
NOW, IN SOME INSTANCES, BE ABLE TO RECOVER FULL COMPENSATION BY
LABELING THEIR CAUSES OF ACTION "INDEBITATUS ASSUMPSIT" OR "QUANTUM
MERUIT."  TO PERMIT A SHERMAN ACT CONSPIRATOR TO RECOVER FOR PATENT USE
UNDER ANY LABEL FROM A CO-CONSPIRATOR WHERE THE LICENSING AGREEMENT FOR
THAT PATENT WAS HELD VOID AS AN INTEGRAL PART OF THE CONSPIRACY RUNS
COUNTER TO THE DOCTRINE OF "UNCLEAN HANDS."  THAT DOCTRINE RESTS
BASICALLY ON THE IDEA THAT THE LAW LEAVES WRONG-DOERS WHERE IT FINDS
THEM.  THE COURT DOES NOT DO SO HERE.  APPELLANT AND APPELLEES HAVE
BEEN FOUND GUILTY OF AN UNLAWFUL CONSPIRACY TO VIOLATE THE SHERMAN
ACT.  GYPSUM'S PATENTS WERE AN ESSENTIAL PART OF THAT CONSPIRACY.  BUT
BY GIVING ITS LAWSUITS APPROPRIATE LABELS IT HAS OBTAINED AN
OPPORTUNITY TO SEEK COMPENSATION FOR THE USE OF TOOLS IT SUPPLIED TO
VIOLATE THE LAW.  I AGREE WITH THE DISTRICT COURT THAT TO ALLOW
RECOVERY ON THESE DIFFERENTLY LABELED COUNTS "IS BUT A LEFT-HANDED,
INDIRECT METHOD FOR RECOVERING THE ROYALTIES PROVIDED IN THE ILLEGAL
LICENSE AGREEMENTS."  AS I SEE IT THIS PERMITS "A LICENSOR TO BE
PROTECTED ON AN ILLEGAL CONTRACT MERELY BECAUSE HE CHOSE ONE REMEDY
RATHER THAN ANOTHER ON THE SAME SUBSTANTIVE ISSUE."  EDWARD KATZINGER
CO. V. CHICAGO METALLIC MFG. CO., 329 U.S. 394, 399-400.  I THINK THE
COURT'S HOLDING SERIOUSLY WEAKENS THE PATENT MISUSE DOCTRINE AND
THEREBY MAKES ENFORCEMENT OF THE SHERMAN ACT FAR MORE DIFFICULT. 
(FN3) 

FN1  "IT IS THE 'CONTRACT, COMBINATION  ... OR CONSPIRACY IN
RESTRAINT OF TRADE OR COMMERCE' WHICH SEC. 1 OF THE ACT STRIKES DOWN,
WHETHER THE CONCERTED ACTIVITY BY WHOLLY NASCENT OR ABORTIVE ON THE ONE
HAND, OR SUCCESSFUL ON THE OTHER."  UNITED STATES V. SOCONY-VACUUM OIL
CO., 310 U.S. 150, 225, N. 59. 

FN2  MACGREGOR V. WESTINGHOUSE ELECTRIC & MFG. CO., 329 U.S. 402,
407. 

FN3  SOME OF THE CASES IN WHICH COURTS HAVE UTILIZED THE DOCTRINE TO
BREAK UP ILLEGAL COMBINATIONS AND PRACTICES ARE MORTON SALT CO. V. G.S.
SUPPIGER CO., 314 U.S. 488; B.B.  CHEMICAL CO. V. ELLIS, 314 U.S. 495;
UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319; HARTFORD-EMPIRE CO.
V. UNITED STATES, 324 U.S. 570. 
..END :






PENNSYLVANIA RAILROAD CO. V. RYCHLIK 352 U.S. 480 


NO. 56.  ARGUED DECEMBER 10-11, 1956 - DECIDED FEBRUARY 25, 1957 - 229
F.2D 171, REVERSED AND REMANDED. 


UNDER SEC. 2, ELEVENTH (A) AND (C) OF THE RAILWAY ACT, PETITIONERS, A
RAILROAD AND A UNION, ENTERED INTO A UNION-SHOP CONTRACT REQUIRING
TRAINMEN EMPLOYED BY THE RAILROAD TO BECOME AND REMAIN MEMBERS OF THE
PETITIONER UNION OR ANOTHER UNION "NATIONAL IN SCOPE" AND "ORGANIZED IN
ACCORDANCE WITH" THE ACT.  A TRAINMAN EMPLOYED BY THE RAILROAD WAS A
MEMBER OF THE PETITIONER UNION; BUT HE RESIGNED FROM THAT UNION AND
JOINED A COMPETING UNION WHICH HE BELIEVED TO BE "NATIONAL IN SCOPE"
AND "ORGANIZED IN ACCORDANCE WITH" THE ACT, BUT WHICH HAD NEVER
QUALIFIED UNDER SEC. 3, FIRST, AS ONE OF THE UNIONS ELIGIBLE TO ELECT
THE LABOR MEMBERS OF THE NATIONAL RAILROAD ADJUSTMENT BOARD.  AFTER
HEARINGS, A SYSTEM BOARD OF ADJUSTMENT ESTABLISHED UNDER SEC. 3,
SECOND, DETERMINED THAT THE TRAINMAN'S NEW UNION DID NOT SATISFY THE
UNION-SHOP PROVISION OF THE CONTRACT, AND THE RAILROAD DISCHARGED HIM. 
HE SUED FOR AN INJUNCTION COMPELLING PETITIONER UNION TO ACCEPT HIM AS
A MEMBER AND THE RAILROAD TO ACCEPT HIM AS AN EMPLOYEE.  HELD:  SECTION
2, ELEVENTH (C) MAKES AVAILABLE FOR ALTERNATIVE MEMBERSHIP UNDER SUCH A
CONTRACT ONLY SUCH UNIONS AS HAVE ALREADY QUALIFIED AS ELECTORS UNDER
SEC. 3, FIRST; AND THE TRAINMAN DID NOT STATE A CLAIM ON WHICH RELIEF
CAN BE GRANTED.  PP. 481-497. 

(A)  THE PURPOSE OF SEC. 2, ELEVENTH (C) WAS TO PREVENT COMPULSORY
DUAL UNIONISM OR THE NECESSITY OF CHANGING FROM ONE UNION TO ANOTHER
WHEN AN EMPLOYEE TEMPORARILY CHANGES CRAFTS.  PP. 489, 492. 

(B)  THE PURPOSE WAS NOT TO GIVE EMPLOYEES A BLANKET RIGHT TO JOIN
UNIONS OTHER THAN THE DESIGNATED BARGAINING REPRESENTATIVE OF THEIR
CRAFT.  PP. 488, 493. 

(C)  NOR WAS IT THE PURPOSE TO BENEFIT RISING NEW UNIONS BY
PERMITTING THEM TO RECRUIT MEMBERS AMONG EMPLOYEES WHO ARE REPRESENTED
BY ANOTHER UNION.  PP. 488-489, 492-493. 

(D)  ONCE A UNION HAS LAWFULLY ESTABLISHED ITSELF FOR A PERIOD OF
TIME AS THE AUTHORIZED BARGAINING REPRESENTATIVE OF THE EMPLOYEES UNDER
A UNION-SHOP CONTRACT, CONGRESS HAS NEVER DEEMED IT TO BE THE "RIGHT"
OF EMPLOYEES TO CHOOSE BETWEEN THAT UNION AND A COMPETING UNION.  P.
494. 

(E)  UNDER SEC. 2, ELEVENTH (C), AN EMPLOYEE HAS AVAILABLE TO HIM
ALTERNATIVE MEMBERSHIP ONLY IN SUCH UNIONS AS HAVE ALREADY QUALIFIED AS
ELECTORS UNDER SEC. 3.  PP. 494-496. 

PENNSYLVANIA RAILROAD CO. ET AL. V. RYCHLIK. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROTHERHOOD OF RAILROAD TRAINMEN IS THE COLLECTIVE
BARGAINING REPRESENTATIVE FOR TRAINMEN EMPLOYED BY THE PETITIONER
RAILROAD.  IN ACCORDANCE WITH SECTION 2, ELEVENTH (A) AND (C) OF THE
RAILWAY LABOR ACT, (FN1) THE BROTHERHOOD AND THE RAILROAD NEGOTIATED A
UNION-SHOP CONTRACT IN 1952, WHICH REQUIRED TRAINMEN EMPLOYED BY THE
RAILROAD TO BECOME MEMBERS OF AND RETAIN MEMBERSHIP IN THE BROTHERHOOD
OR IN ANOTHER LABOR ORGANIZATION "NATIONAL IN SCOPE" AND "ORGANIZED IN
ACCORDANCE WITH" THE RAILWAY LABOR ACT.  RESPONDENT RYCHLIK WAS
EMPLOYED AS A TRAINMAN BY THE RAILROAD AND WAS A MEMBER IN GOOD
STANDING OF THE BROTHERHOOD UNTIL FEBRUARY 1953.  AT THAT TIME HE
RESIGNED FROM THE BROTHERHOOD AND JOINED THE UNITED RAILROAD OPERATING
CRAFTS (UROC), A COMPETING UNION WHICH RESPONDENT BELIEVED IN GOOD
FAITH TO BE "NATIONAL IN SCOPE" AND "ORGANIZED IN ACCORDANCE WITH" THE
ACT, AND THEREFORE AVAILABLE FOR ALTERNATIVE MEMBERSHIP UNDER SECTION
2, ELEVENTH AND THE UNION-SHOP PROVISION OF THE CONTRACT, EVEN THOUGH
UROC HAD NEVER QUALIFIED ITSELF UNDER SECTION 3, FIRST OF THE ACT AS
ONE OF THE UNIONS "NATIONAL IN SCOPE" ELIGIBLE TO ELECT THE LABOR
MEMBERS OF THE NATIONAL RAILROAD ADJUSTMENT BOARD.  (FN2)  ON JULY 31,
1954, RYCHLIK, CONTINUING HIS MEMBERSHIP IN UROC, ALSO JOINED THE
SWITCHMEN'S UNION OF NORTH AMERICA, CONCEDEDLY A UNION "NATIONAL IN
SCOPE" WITHIN THE MEANING OF THE STATUTE AND THE CONTRACT. 

FOLLOWING HIS RESIGNATION FROM THE BROTHERHOOD, RYCHLIK WAS CHARGED
WITH VIOLATION OF THE UNION-SHOP AGREEMENT.  HE RECEIVED TWO HEARINGS
BEFORE A "SYSTEM BOARD OF ADJUSTMENT," A BODY ESTABLISHED UNDER THE
AGREEMENT, PURSUANT TO SECTION 3, SECOND OF THE ACT, (FN3) TO SETTLE
CONTRACT DISPUTES, AND COMPOSED OF TWO REPRESENTATIVES EACH FROM THE
RAILROAD AND THE BROTHERHOOD.  (FN4) THIS BOARD DETERMINED THAT
MEMBERSHIP IN UROC DID NOT SATISFY THE UNION-SHOP PROVISION OF THE
CONTRACT, WHICH MIRRORED THE REQUIREMENTS OF THE ACT, AND THAT
THEREFORE RYCHLIK HAD FAILED TO MAINTAIN CONTINUOUS UNION MEMBERSHIP IN
ACCORDANCE WITH THE CONTRACT, NOT HAVING JOINED THE SWITCHMEN'S UNION
UNTIL SOME 16 MONTHS AFTER RESIGNING FROM THE BROTHERHOOD. 
ACCORDINGLY, RYCHLIK WAS DISCHARGED BY THE RAILROAD. 

RYCHLIK, ON BEHALF OF HIMSELF AND OTHER EMPLOYEES OF THE RAILROAD
SIMILARLY SITUATED, THEREUPON BROUGHT THIS CLASS SUIT IN THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK, SEEKING AN
INJUNCTION COMPELLING PETITIONERS TO ACCEPT HIM AS A MEMBER OF THE
BROTHERHOOD AND AN EMPLOYEE OF THE RAILROAD.  HE ALLEGED THAT HIS
DISCHARGE VIOLATED SECTION 2, ELEVENTH OF THE RAILWAY LABOR ACT, AND
THAT THE SYSTEM BOARD'S DETERMINATION TO THE CONTRARY COULD NOT BE
FINAL AND BINDING, SINCE THE PRESENCE ON THAT BOARD OF TWO
REPRESENTATIVES OF THE BROTHERHOOD CREATED AN INHERENT AND FATAL BIAS
WHICH VITIATED THE PROCEEDING.  THE DISTRICT COURT GRANTED PETITIONERS'
MOTION TO DISMISS THE COMPLAINT FOR LACK OF JURISDICTION AND FOR
FAILURE TO STATE A CAUSE OF ACTION.  (FN5)  THE COURT OF APPEALS FOR
THE SECOND CIRCUIT REVERSED AND REMANDED FOR REVIEW ON THE MERITS OF
THE SYSTEM BOARD'S DECISION THAT MEMBERSHIP IN UROC DID NOT SATISFY THE
ACT.  (FN6)  ACCEPTING THE PREMISE THAT SECTION 2, ELEVENTH (C)
CONFERRED ON RESPONDENT A RIGHT TO BELONG TO ANY UNION WHICH IS, IN
FACT, "NATIONAL IN SCOPE" AND ORGANIZED IN ACCORDANCE WITH THE RAILWAY
LABOR ACT, EVEN THOUGH IT HAS NOT QUALIFIED UNDER SECTION 3, FIRST OF
THE ACT AS AN ELECTOR OF LABOR REPRESENTATIVES ON THE NATIONAL RAILROAD
ADJUSTMENT BOARD, (FN7) THE COURT HELD (1) THAT, ALTHOUGH THE SYSTEM
BOARD HAD JURISDICTION OVER THIS DISPUTE BETWEEN RYCHLIK AND THE
BROTHERHOOD, (FN8) ITS DECISION THAT UROC WAS NOT A UNION "NATIONAL IN
SCOPE" WAS SUBJECT TO FULL REVIEW ON THE MERITS, BECAUSE OF THE BIAS
WHICH MUST BE ATTRIBUTED TO A BODY HALF OF WHOSE MEMBERS REPRESENTED
THE BROTHERHOOD, A PARTY IN INTEREST; AND (2) THAT THIS BIAS WAS NOT
CURED BY THE AVAILABILITY OF THE ALTERNATIVE PROCEDURE PROVIDED BY
IS "NATIONAL IN SCOPE" AND ORGANIZED IN ACCORDANCE WITH THE ACT.  (FN9)
BECAUSE OF A CONFLICT BETWEEN THE DECISION OF THE COURT BELOW AND AN
EARLIER DECISION OF THE COURT OF APPEALS FOR THE SIXTH CIRCUIT, (FN10)
AND THE IMPORTANCE OF THESE QUESTIONS IN THE ADMINISTRATION OF THE
RAILWAY LABOR ACT, WE GRANTED CERTIORARI.  351 U.S. 930. 

ON OUR VIEW OF THE CASE WE DO NOT REACH EITHER QUESTION DECIDED BY
THE COURT OF APPEALS, FOR WE DISAGREE WITH ITS PREMISE AS TO THE
MEANING OF SECTION 2, ELEVENTH (C).  FOR REASONS HEREAFTER GIVEN, WE
HOLD THAT SECTION 2, ELEVENTH (C) ALLOWS ALTERNATIVE UNION MEMBERSHIP
ONLY IN THOSE UNIONS WHICH HAVE ALREADY QUALIFIED UNDER SECTION 3,
FIRST OF THE ACT, AS ELECTORS OF THE UNION REPRESENTATIVES ON THE
NATIONAL RAILROAD ADJUSTMENT BOARD, AND NOT MEMBERSHIP IN ANY UNION
WHICH HAPPENS TO BE, AS A MATTER OF FACT, NATIONAL IN SCOPE AND
ORGANIZED IN ACCORDANCE WITH THE RAILWAY LABOR ACT.  SINCE UROC WAS NOT
SO QUALIFIED, RESPONDENT HAD NO FEDERAL RIGHT TO JOIN IT IN LIEU OF THE
AUTHORIZED BARGAINING REPRESENTATIVE UNDER THE UNION-SHOP PROVISION OF
THE RAILROAD-BROTHERHOOD CONTRACT.  HIS DISCHARGE BY PETITIONERS
THEREFORE DID NOT GIVE RISE TO A FEDERAL CAUSE OF ACTION.  (FN11) 

IN ORDER TO CLARIFY THE REASONS FOR THESE CONCLUSIONS, A BRIEF
OUTLINE OF THE RELEVANT PROVISIONS OF THE RAILWAY LABOR ACT IS
NECESSARY.  SECTION 2, ELEVENTH (A) OF THAT ACT AUTHORIZES RAILROADS
AND LABOR UNIONS TO ESTABLISH A UNION SHOP, THAT IS, AN AGREEMENT
REQUIRING AS A CONDITION OF CONTINUED EMPLOYMENT THAT EMPLOYEES JOIN
THE UNION DESIGNATED AS THEIR AUTHORIZED BARGAINING REPRESENTATIVE. 
(FN12)  SECTION 2, ELEVENTH (C) THEN PROVIDES THAT IN THE CASE OF
OPERATING EMPLOYEES THE UNION-SHOP PROVISION OF A CONTRACT WILL BE
SATISFIED IF AN EMPLOYEE IS A MEMBER OF "ANY ONE OF THE LABOR
ORGANIZATIONS, NATIONAL IN SCOPE, ORGANIZED IN ACCORDANCE WITH THIS ACT
AND ADMITTING TO MEMBERSHIP EMPLOYEES OF A CRAFT OR CLASS IN ANY OF
SAID SERVICES  ...  ."  (FN13) 

(NRAB), AN AGENCY DESIGNED TO SETTLE DISPUTES ARISING UNDER COLLECTIVE
BARGAINING AGREEMENTS.  SUBSECTION (A) PROVIDES THAT THIS BOARD SHALL
CONSIST OF 36 MEMBERS, 18 SELECTED BY THE CARRIERS, AND 18 "BY SUCH
LABOR ORGANIZATIONS OF THE EMPLOYEES, NATIONAL IN SCOPE, AS HAVE BEEN
OR MAY BE ORGANIZED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2  ...
."  (FN14)  SUBSECTION (F) THEN STATES THAT IF A DISPUTE ARISES AS TO
THE RIGHT OF A UNION TO PARTICIPATE IN THE ELECTION OF THE LABOR
REPRESENTATIVES ON THE NRAB, THE SECRETARY OF LABOR WILL NOTIFY THE
MEDIATION BOARD IF HE FEELS THE CLAIM HAS MERIT.  (FN15) THE MEDIATION
BOARD THEN CONSTITUTES A "BOARD OF THREE," CONSISTING OF ONE
REPRESENTATIVE OF THE CLAIMANT UNION, ONE REPRESENTATIVE OF THE UNIONS
ALREADY ENTITLED TO ELECT THE LABOR MEMBERS OF THE NRAB, AND ONE
NEUTRAL MEMBER SELECTED BY THE MEDIATION BOARD.  THIS BOARD OF THREE
THEN DECIDES WHETHER THE CLAIMANT UNION IS ENTITLED TO BE AN ELECTOR
FOR THE NRAB, THAT IS, WHETHER IT IS "ORGANIZED IN ACCORDANCE WITH
THE SELECTION  ...  ."  (FN16) 

AT FIRST GLANCE THE LANGUAGE OF SECTION 2, ELEVENTH (C) WOULD APPEAR
TO BE DISARMINGLY CLEAR: UNION-SHOP CONTRACTS ARE SATISFIED IF THE
EMPLOYEE BELONGS TO ANY UNION WHICH HAPPENS TO BE NATIONAL IN SCOPE AND
ORGANIZED IN ACCORDANCE WITH THE ACT.  AND IF THAT BE ITS MEANING WE
WOULD THEN HAVE TO DEAL WITH THE QUESTIONS REACHED BY THE COURT OF
APPEALS.  HOWEVER, AS SO OFTEN HAPPENS, WHEN THE LANGUAGE OF THE
STATUTE IS READ, NOT IN A VACUUM, BUT IN THE LIGHT OF THE POLICIES THIS
OF CONGRESS WAS NOT, AS RESPONDENT CONTENDS, TO GIVE EMPLOYEES IN THE
RAILROAD INDUSTRY ANY BLANKET RIGHT TO JOIN UNIONS OTHER THAN THE
AUTHORIZED BARGAINING REPRESENTATIVE, OR TO HELP DISSIDENT OR RISING
NEW UNIONS RECRUIT NEW MEMBERS.   RATHER, THE SOLE AIM OF THE PROVISION
WAS TO PROTECT EMPLOYEES FROM THE REQUIREMENT OF DUAL UNIONISM IN AN
INDUSTRY WITH HIGH JOB MOBILITY, AND THUS TO CONFER ON QUALIFIED CRAFT
UNIONS THE RIGHT TO ASSURE MEMBERS EMPLOYMENT SECURITY, EVEN IF A
MEMBER SHOULD BE WORKING TEMPORARILY IN A CRAFT FOR WHICH ANOTHER UNION
IS THE BARGAINING REPRESENTATIVE.  AND THIS RIGHT IS GIVEN ONLY TO
THOSE UNIONS WHICH HAVE ALREADY QUALIFIED AS BEING "NATIONAL IN SCOPE"
AND "ORGANIZED IN ACCORDANCE WITH" THE ACT FOR THE PURPOSE OF ELECTING
THE UNION MEMBERS OF THE NRAB UNDER SECTION 3. 

                                           I. 

THE PURPOSES TO BE SERVED BY SECTION 2 ARE CLEARLY REVEALED BY ITS
HISTORY.  UNTIL 1951 THE RAILWAY LABOR ACT DID NOT PERMIT UNION-SHOP
CONTRACTS IN THE INDUSTRY.  (FN18)  IN THAT YEAR THE CONGRESS,
PERSUADED BY THE ESTABLISHED UNIONS THAT IT IS UNFAIR TO ALLOW NONUNION
EMPLOYEES TO ENJOY BENEFITS OBTAINED BY THE UNION'S EFFORTS IN
COLLECTIVE BARGAINING WITHOUT PAYING ANY OF THE COSTS, PASSED SECTION
2, ELEVENTH OF THE ACT, WHICH AUTHORIZED THE UNION SHOP.  (FN19)
HOWEVER, THE HEARINGS ON THE BILL (FN20) REVEALED A PROBLEM, PECULIAR
TO THE RAILROAD INDUSTRY, IN ESTABLISHING THE UNION SHOP.  LABOR IN
THIS INDUSTRY IS ORGANIZED LARGELY ON CRAFT RATHER THAN INDUSTRIAL
LINES.  ENGINEERS, FIREMEN, TRAINMEN, SWITCHMEN, BRAKEMEN, AND
CONDUCTORS, FOR EXAMPLE, EACH ARE SEPARATELY ORGANIZED FOR THE PURPOSES
OF BARGAINING.  AND NORMALLY DIFFERENT UNIONS REPRESENT DIFFERENT
CRAFTS; THUS, ON THE SAME RAILROAD, FIREMEN MIGHT BE REPRESENTED BY THE
BROTHERHOOD OF FIREMEN AND ENGINEMEN, AND ENGINEERS BY THE BROTHERHOOD
OF LOCOMOTIVE ENGINEERS.  YET SEASONAL AND OTHER FACTORS PRODUCE A HIGH
DEGREE OF JOB MOBILITY FOR INDIVIDUAL EMPLOYEES IN THE INDUSTRY, THAT
IS, OF SHUTTLING BACK AND FORTH BETWEEN CRAFTS.  FOR EXAMPLE, A FIREMAN
MAY BE TEMPORARILY PROMOTED TO ENGINEER FOR A SHORT TIME, OR A
CONDUCTOR MIGHT HAVE TO SERVE TEMPORARILY AS BRAKEMAN.  UNDER THE
ORDINARY UNION-SHOP CONTRACT, SUCH A CHANGE FROM CRAFT TO CRAFT, EVEN
THOUGH TEMPORARY, WOULD MEAN THAT THE EMPLOYEE WOULD EITHER HAVE TO
BELONG TO TWO UNIONS - ONE REPRESENTING EACH OF HIS CRAFTS - OR WOULD
HAVE TO SHUTTLE BETWEEN UNIONS AS HE SHUTTLES BETWEEN JOBS.  THE FORMER
ALTERNATIVE WOULD, OF COURSE, BE EXPENSIVE AND SOMETIMES IMPOSSIBLE,
WHILE THE LATTER WOULD BE COMPLICATED AND MIGHT MEAN LOSS OF SENIORITY
AND UNION BENEFITS.  (FN21) 

SO CONGRESS FACED THE PROBLEM OF RECONCILING THE UNION SHOP WITH SOME
PROTECTION TO EMPLOYEES WHO SHIFTED FROM ONE CRAFT TO ANOTHER ONE
REPRESENTED BY A DIFFERENT LABOR ORGANIZATION UNDER A UNION-SHOP
CONTRACT.  (FN22)  THE SOLUTION, OF COURSE, WAS EVIDENT: TO PROVIDE
THAT IF A FIREMAN, FOR EXAMPLE, IS TEMPORARILY PROMOTED TO ENGINEER, HE
CAN SATISFY THE UNION-SHOP CONTRACT OF THE ENGINEERS ALTHOUGH STILL
REMAINING A MEMBER OF THE UNION REPRESENTING THE FIREMEN. 

AS A RESULT, THE COMMITTEE REPORTING THE BILL TO THE SENATE OFFERED
ON THE SENATE FLOOR THE FOLLOWING AMENDMENT TO SUBSECTION (A) OF

"PROVIDED FURTHER, THAT NO SUCH (UNION SHOP) AGREEMENT SHALL REQUIRE
MEMBERSHIP IN MORE THAN ONE LABOR ORGANIZATION."  (FN23) 

SENATOR HILL, MANAGER OF THE BILL, EXPLAINED THE COMMITTEE
AMENDMENT: 

"THIS PROVISO WAS ATTACHED BECAUSE SOME QUESTION WAS RAISED AS TO THE
STATUS, UNDER THIS BILL, OF EMPLOYEES WHO ARE TEMPORARILY PROMOTED OR
DEMOTED FROM ONE CLOSELY RELATED CRAFT OR CLASS TO ANOTHER.  THIS
PRACTICE, WITH MINOR EXCEPTIONS, OCCURS ONLY AMONG THE TRAIN- AND
ENGINE-SERVICE EMPLOYEES.  THUS A FIREMAN MAY BE PROMOTED TO A POSITION
AS ENGINEER FOR A SHORT TIME AND THEN DUE TO A REDUCTION IN FORCE BE
RETURNED TO HIS FORMER POSITION AS FIREMAN.  IT IS THE INTENTION OF
THIS PROVISO TO ASSURE THAT IN THE CASE OF SUCH PROMOTION OR DEMOTION,
AS THE CASE MAY BE, THE EMPLOYEE INVOLVED SHALL NOT BE DEPRIVED OF HIS
EMPLOYMENT BECAUSE OF HIS FAILURE OR REFUSAL TO JOIN THE UNION
REPRESENTING THE CRAFT OR CLASS IN WHICH HE IS LOCATED IF HE RETAINS
HIS MEMBERSHIP IN THE UNION REPRESENTING THE CRAFT OR CLASS FROM WHICH
HE HAS BEEN TRANSFERRED."  (FN24) 

DUE TO A TEMPORARY ADJOURNMENT OF THE SENATE, NO ACTION WAS TAKEN ON
THIS AMENDMENT.  WHEN THE BILL WAS AGAIN TAKEN UP, HOWEVER, A
SUBSTITUTE AMENDMENT, WHICH HAD BEEN DRAFTED BY THE RAILROAD
BROTHERHOODS, WAS OFFERED BY SENATORS HILL AND TAFT.  (FN25)  THE
LANGUAGE OF THIS SUBSTITUTE WAS THAT OF THE PRESENT SECTION 2, ELEVENTH
(C), PROVIDING THAT THE REQUIREMENT OF MEMBERSHIP UNDER A UNION-SHOP
CONTRACT IS SATISFIED IF THE EMPLOYEE BELONGS TO "ANY ONE OF THE LABOR
ORGANIZATIONS, NATIONAL IN SCOPE, ORGANIZED IN ACCORDANCE WITH THIS
ACT."  (FN26)  SENATOR HILL EXPLAINED THAT THE PURPOSE OF THIS
SUBSTITUTE WAS THE SAME AS THAT OF THE PREVIOUS AMENDMENT: 

"(THE AMENDMENT DOES) NOTHING MORE NOR LESS THAN WHAT THE COMMITTEE
DESIRES TO DO, AND WHAT WAS THE INTENT OF THE COMMITTEE IN OFFERING ITS
AMENDMENT, THAT NO EMPLOYEE OF A RAILROAD SHOULD BE REQUIRED TO BELONG
TO MORE THAN ONE LABOR ORGANIZATION.  THE ONLY DIFFERENCE BETWEEN THE
COMMITTEE AMENDMENT AND THE AMENDMENTS NOW BEFORE THE SENATE, WHICH
HAVE BEEN AGREED UPON BY ALL THE RAILROAD ORGANIZATIONS, IS THAT THE
AMENDMENTS NOW BEFORE THE SENATE SPELL OUT IN MUCH MORE DETAIL THE
PURPOSES OF THE COMMITTEE AMENDMENT THAN DID THE COMMITTEE AMENDMENT. 
BUT THE INTENT AND THE PURPOSE  ...  ARE EXACTLY THE SAME."  (FN27) 
THIS AMENDMENT PASSED AS INTRODUCED (FN28) AND NOW FORMS SUBSECTION
(C). 

IT THUS BECOMES CLEAR THAT THE ONLY PURPOSE OF SECTION 2, ELEVENTH
(C) WAS A VERY NARROW ONE:  TO PREVENT COMPULSORY DUAL UNIONISM OR THE
NECESSITY OF CHANGING FROM ONE UNION TO ANOTHER WHEN AN EMPLOYEE
TEMPORARILY CHANGES CRAFTS.  (FN29)  THE AIM OF THE SECTION, WHICH WAS
DRAFTED BY THE ESTABLISHED UNIONS THEMSELVES, (FN30) QUITE EVIDENTLY
WAS NOT TO BENEFIT RISING NEW UNIONS BY PERMITTING THEM TO RECRUIT
MEMBERS AMONG EMPLOYEES WHO ARE REPRESENTED BY ANOTHER LABOR
ORGANIZATION.  NOR WAS IT INTENDED TO PROVIDE EMPLOYEES WITH A GENERAL
RIGHT TO JOIN UNIONS OTHER THAN THE DESIGNATED BARGAINING
REPRESENTATIVE OF THEIR CRAFT, EXCEPT TO MEET THE NARROW PROBLEM OF
INTERCRAFT MOBILITY.  THIS IS MADE PARTICULARLY CLEAR WHEN THE
PROVISION IS TAKEN IN THE CONTEXT OF AMERICAN LABOR RELATIONS IN
GENERAL.  THE NATIONAL LABOR RELATIONS ACT CONTAINS NO PARALLEL TO
SUBSECTION (C), AND EMPLOYEES UNDER A UNION-SHOP CONTRACT GOVERNED BY
THAT ACT MUST JOIN AND MAINTAIN MEMBERSHIP IN THE UNION DESIGNATED AS
THE BARGAINING REPRESENTATIVE OR SUFFER DISCHARGE.  (FN31)  SIMILARLY,
SUBSECTION (C) DOES NOT APPLY TO NONOPERATING EMPLOYEES, WHERE THE
PROBLEM OF SEASONAL INTERCRAFT MOVEMENT DOES NOT EXIST.  RAILROAD
EMPLOYEES SUCH AS CLERKS WORKING UNDER A UNION-SHOP CONTRACT HAVE NO
RIGHT AT ALL TO JOIN A UNION OTHER THAN THE BARGAINING REPRESENTATIVE. 
IN OTHER WORDS, ONCE A UNION HAS LAWFULLY ESTABLISHED ITSELF FOR A
PERIOD OF TIME AS THE AUTHORIZED BARGAINING REPRESENTATIVE OF THE
EMPLOYEES UNDER A UNION-SHOP CONTRACT, CONGRESS HAS NEVER DEEMED IT TO
BE A "RIGHT" OF EMPLOYEES TO CHOOSE BETWEEN MEMBERSHIP IN IT AND
ANOTHER COMPETING UNION.  IF CONGRESS INTENDED TO CONFER SUCH A RIGHT,
IT WOULD SCARCELY HAVE DENIED THE RIGHT TO NONOPERATING EMPLOYEES OF
THE RAILROADS OR INDUSTRIAL EMPLOYEES UNDER THE NATIONAL LABOR
RELATIONS ACT.  THE PURPOSE OF SECTION 2, ELEVENTH (C) WAS SIMPLY TO
SOLVE THE PROBLEM OF INTERCRAFT MOBILITY UNDER RAILROAD UNION-SHOP
CONTRACTS. 

               II. 

THERE NEXT ARISES FOR CONSIDERATION THE MANNER IN WHICH CONGRESS
ACHIEVED THIS PURPOSE.  SECTION 2, ELEVENTH (C) PROVIDES THAT FOR
OPERATING EMPLOYEES A UNION-SHOP CONTRACT CAN BE SATISFIED BY
MEMBERSHIP IN "ANY ONE OF THE LABOR ORGANIZATIONS, NATIONAL IN SCOPE,
ORGANIZED IN ACCORDANCE WITH THIS ACT  ...  ."  AT FIRST BLUSH THIS
WOULD APPEAR TO CONFER ON EMPLOYEES A BLANKET RIGHT TO CHOOSE BETWEEN
ALTERNATIVE UNIONS WHICH ARE, IN THE ABSTRACT, NATIONAL IN SCOPE AND
ORGANIZED IN ACCORDANCE WITH THE ACT.  BUT WHEN TAKEN IN THE CONTEXT OF
THE RAILWAY LABOR ACT AS A WHOLE, IT BECOMES APPARENT THAT THIS
LANGUAGE REFERS TO A CERTAIN GROUP OF UNIONS, A GROUP ALREADY
CONSTITUTED.  FOR THE LANGUAGE WAS BORROWED FROM SECTION 3, FIRST OF
THE ACT, WHICH HAD BEEN ON THE BOOKS FOR SOME 17 YEARS, AND WHICH
ESTABLISHES PRECISELY THE SAME QUALIFICATIONS FOR THOSE UNIONS WHICH
ARE PERMITTED TO ELECT THE LABOR MEMBERS OF THE NRAB.  SUBSECTION (A)
OF SECTION 3, FIRST PROVIDES THAT UNIONS MAY BECOME ELECTORS IF THEY
ARE "NATIONAL IN SCOPE" AND ARE "ORGANIZED IN ACCORDANCE WITH" THE
ACT.  (FN32)  SUBSECTION (F) THEN SPELLS OUT AN IMPARTIAL
ADMINISTRATIVE METHOD OF TRIPARTITE ARBITRATION WHEREBY IT CAN BE
DECIDED WHETHER A PARTICULAR UNION MEETS THESE QUALIFICATIONS.  (FN33)
IN OTHER WORDS, BY WRITING INTO SECTION 2, ELEVENTH (C), STANDARDS
IDENTICAL TO THOSE OF SECTION 3, CONGRESS IN SECTION 2 WAS EVIDENTLY
MAKING REFERENCE TO THOSE UNIONS WHICH HAD QUALIFIED AS ELECTORS UNDER
PROVIDED.  (FN34)  THIS REFERENCE TO AN ALREADY CONSTITUTED GROUP OF
UNIONS IS EMPHASIZED BY THE FACT THAT CONGRESS IN SECTION 2, ELEVENTH
(C) DID NOT SAY THAT AN EMPLOYEE UNDER A UNION-SHOP CONTRACT COULD JOIN
"ANY" LABOR ORGANIZATION WHICH WAS NATIONAL IN SCOPE AND ORGANIZED IN
ACCORDANCE WITH THE ACT; RATHER IT SAID THAT SUCH AN EMPLOYEE COULD
JOIN "ANY ONE OF THE" LABOR ORGANIZATIONS WHICH ARE NATIONAL IN SCOPE
AND ORGANIZED IN ACCORDANCE WITH THE ACT.   IN SHORT, CONGRESS IN
CONSTITUTED UNDER THE SECTION 3 PROCEDURES.  AND THEREFORE AN EMPLOYEE
HAS AVAILABLE TO HIM ALTERNATIVE MEMBERSHIP ONLY IN SUCH UNIONS AS HAVE
ALREADY QUALIFIED AS ELECTORS UNDER SECTION 3. 

                           III. 

THIS INTERPRETATION OF THE ACT SOLVES THE PROBLEM WHICH CONGRESS
FACED WITHOUT CONFERRING ON EMPLOYEES "FLOATING" RIGHTS WHICH CONGRESS
DID NOT INTEND TO GRANT.  FOR THE PROBLEM OF INTERCRAFT MOBILITY
VANISHES IF THE PROMOTED FIREMAN CAN REMAIN IN THE FIREMEN'S
BROTHERHOOD, EVEN THOUGH HIS NEW CRAFT IS REPRESENTED BY A DIFFERENT
UNION; AND THE FIREMEN'S BROTHERHOOD WILL, OF COURSE, ALREADY HAVE
QUALIFIED UNDER THE ACT AS AN ELECTOR UNDER SECTION 3.  FURTHERMORE,
THIS INTERPRETATION AVOIDS TROUBLESOME QUESTIONS WHICH WOULD ARISE WERE
WE TO HOLD THAT EMPLOYEES HAVE A RIGHT TO BELONG TO ANY UNION WHICH
HAPPENS TO BE NATIONAL IN SCOPE AND ORGANIZED IN ACCORDANCE WITH THE
ACT.  FOR, WHILE SECTION 3, FIRST PROVIDES AN IMPARTIAL ADMINISTRATIVE
SCHEME TO DEAL WITH PRECISELY THIS QUESTION, SECTION 2, ELEVENTH (C),
ASSUMING IT DOES NOT REFER TO AN ALREADY DEFINED GROUP OF UNIONS
QUALIFIED UNDER SECTION 3, IS SILENT ON THE PROCEDURE TO DETERMINE
WHETHER A UNION MEETS ITS REQUIREMENTS.  AN ENTIRE NEW ADMINISTRATIVE
SCHEME WOULD HAVE TO BE FASHIONED BY THE COURTS OUT OF THIN AIR TO DEAL
WITH THIS QUESTION, OR THE COURTS THEMSELVES WOULD HAVE TO DEAL WITH IT
WITHOUT PRIOR ADMINISTRATIVE ACTION.  IF SYSTEM BOARDS, FOR EXAMPLE,
ARE TO BE GIVEN JURISDICTION TO MAKE SUCH DETERMINATIONS, IS THERE TO
BE JUDICIAL REVIEW?  WHAT IS TO BE THE SCOPE OF SUCH REVIEW?  HOW IS
THE INHERENT BIAS OF THE ESTABLISHED-UNION MEMBERS OF THESE BOARDS TO
BE OVERCOME?  WOULD THE DETERMINATION OF ONE BOARD (OR ONE CIRCUIT)
THAT SUCH A UNION AS UROC IS "NATIONAL IN SCOPE" BE BINDING ON ANOTHER
BOARD OR ANOTHER CIRCUIT? 

MOREOVER, TO SANCTION SUCH A "FLOATING" RIGHT IN EMPLOYEES WOULD MAKE
ONLY FOR CONFUSION AND UNCERTAINTY IN LABOR RELATIONS IN THE RAILROAD
INDUSTRY.  NO EMPLOYEE COULD WITH SAFETY JOIN AN ALTERNATIVE UNION, FOR
HE COULD NOT KNOW UNTIL AFTER-THE-FACT ADJUDICATION WHETHER THAT UNION
MEETS THE REQUIREMENTS OF SECTION 2.  ON THE OTHER HAND, INTERPRETING
ELECTORS UNDER SECTION 3 MEANS THAT AN EMPLOYEE WILL ALWAYS KNOW OR CAN
EASILY ASCERTAIN THE UNIONS WHICH HE CAN JOIN AS AN ALTERNATIVE TO HIS
BARGAINING REPRESENTATIVE.  A NEW UNION, SUCH AS UROC, COULD MAKE
ITSELF AVAILABLE FOR SUCH ALTERNATIVE MEMBERSHIP BY SEEKING
CERTIFICATION AS AN ELECTOR THROUGH THE IMPARTIAL PROCEDURE OF SECTION
3, FIRST (F).  AND THE DECISION OF THE "BOARD OF THREE" PROVIDED BY
THAT SECTION WOULD BE PROSPECTIVE, UNIFORM THROUGHOUT THE NATION, AND
WOULD BE THE RULING OF AN ADMINISTRATIVE BODY ESTABLISHED TO DEAL WITH
PRECISELY THIS QUESTION. 

WE HOLD, THEREFORE, THAT SECTION 2, ELEVENTH (C) OF THE ACT MAKES
ONLY SUCH UNIONS AVAILABLE FOR ALTERNATIVE MEMBERSHIP UNDER A UNION
SHOP CONTRACT, SUCH AS THIS ONE, AS HAVE ALREADY QUALIFIED AS ELECTORS
FOR THE LABOR MEMBERS OF THE NRAB UNDER SECTION 3, FIRST.  SINCE UROC
HAS NOT SO QUALIFIED, RESPONDENT HAS NOT STATED A CLAIM ON WHICH RELIEF
CAN BE GRANTED.  THE DECISION BELOW MUST THEREFORE BE REVERSED AND THE
CASE REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE
COMPLAINT.  REVERSED AND REMANDED. 

FN1  64 STAT. 1238 (1951), 45 U.S.C. SEC. 152, ELEVENTH (A) AND (C). 
THESE AND OTHER PERTINENT PROVISIONS OF THE STATUTE ARE DISCUSSED
LATER. 

FN2  48 STAT. 1189 (1934), 45 U.S.C. SEC. 153, FIRST. 

FN3  48 STAT. 1193 (1934), 45 U.S.C. SEC. 153, SECOND.  THIS SECTION
AUTHORIZES CARRIERS AND UNIONS TO SET UP "SYSTEM, GROUP, OR REGIONAL
BOARDS OF ADJUSTMENT" TO DECIDE DISPUTES OTHERWISE WITHIN THE
JURISDICTION OF THE NATIONAL RAILROAD ADJUSTMENT BOARD, WITH A RIGHT IN
ANY PARTY, DISSATISFIED WITH SUCH AN ARRANGEMENT, TO RETURN TO THE
JURISDICTION OF THE ADJUSTMENT BOARD UPON 90 DAYS' NOTICE.  NO SUCH
ELECTION WAS MADE HERE. 

FN4  THE FIRST HEARING WAS ON AUGUST 27, 1953, AT WHICH TIME THE
BOARD POSTPONED DECISION PENDING FURTHER EXPLORATION INTO THE STATUS OF
UROC.  THE SECOND HEARING WAS ON AUGUST 23, 1954.  IN THE INTERIM,
RYCHLIK, ON JULY 31, 1954, HAD JOINED THE SWITCHMEN'S UNION, AND
PRESENTED EVIDENCE OF THAT MEMBERSHIP AT THE SECOND HEARING.  RYCHLIK'S
EMPLOYMENT WAS CONTINUED UNTIL SHORTLY AFTER THE BOARD'S ADVERSE
DECISION ON JANUARY 3, 1955. 

FN5  128 F. SUPP. 449.  THE DISTRICT COURT, HOLDING IN EFFECT THAT
ITS JURISDICTION TO REVIEW THE SYSTEM BOARD WAS LIMITED TO ASCERTAINING
WHETHER THE BOARD HAD ACTED WITHIN THE SCOPE OF ITS STATUTORY AND
CONTRACT AUTHORITY AND WHETHER ITS DECISION WAS FREE OF FRAUD OR
CORRUPTION AND THE HEARING CONSONANT WITH PROCEDURAL DUE PROCESS, FOUND
THAT NO SUCH INFIRMITIES HAD BEEN SHOWN, AND IN PARTICULAR THAT THE
PRESENCE OF TWO BROTHERHOOD REPRESENTATIVES ON THE SYSTEM BOARD DID NOT
AUTOMATICALLY VITIATE ITS PROCEEDINGS.  IT FURTHER HELD THAT RYCHLIK'S
BELATED MEMBERSHIP IN THE SWITCHMEN'S UNION DID NOT SATISFY THE
STATUTORY AND CONTRACT REQUIREMENTS OF CONTINUOUS MAINTENANCE OF
MEMBERSHIP IN A QUALIFIED UNION, AND THAT THE COURT NEED NOT DECIDE
WHETHER UROC WAS A LABOR ORGANIZATION "NATIONAL IN SCOPE," SINCE, UNDER
QUESTION WAS WITHIN THE EXCLUSIVE COMPETENCE OF THE NATIONAL MEDIATION
BOARD.  SEE PP. 487-488, INFRA. 

FN6  229 F.2D 171. 

FN7  THE BRIEFS BELOW SHOW THAT THE VALIDITY OF THIS PREMISE WAS NOT
CHALLENGED BY ANY OF THE PARTIES BEFORE THE COURT OF APPEALS. 

FN8  AS TO THIS ISSUE THE COURT OF APPEALS RELIED ON ITS PREVIOUS
DECISION IN UNITED RAILROAD OPERATING CRAFTS V. WYER, 205 F.2D 153. 

FN9  NEITHER IN THE COURT OF APPEALS, NOR HERE, HAS RYCHLIK CLAIMED
THAT HIS MEMBERSHIP IN THE SWITCHMEN'S UNION MADE HIS DISCHARGE
ILLEGAL.  IN BOTH COURTS HE HAS STOOD ONLY UPON HIS MEMBERSHIP IN
UROC. 

FN10  PIGOTT V. DETROIT, TOLEDO AND IRONTON R. CO., 221 F.2D 736. 

FN11  NO CONTENTION IS MADE THAT, APART FROM THE STATUTE, RESPONDENT
HAD A CAUSE OF ACTION ON THE UNION-SHOP CONTRACT ITSELF, THAT IS, THAT
THE CONTRACT CONFERRED ON HIM RIGHTS WIDER THAN THOSE GIVEN AS A MATTER
OF FEDERAL RIGHT BY THE STATUTE.  ON SUCH A CAUSE OF ACTION FEDERAL
JURISDICTION WOULD DEPEND ON SHOWING DIVERSITY OF CITIZENSHIP. 

FN12  "NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS ACT  ...  ANY
CARRIER OR CARRIERS AS DEFINED IN THIS ACT AND A LABOR ORGANIZATION OR
LABOR ORGANIZATIONS DULY DESIGNATED AND AUTHORIZED TO REPRESENT
EMPLOYEES IN ACCORDANCE WITH THE REQUIREMENTS OF THIS ACT SHALL BE
PERMITTED: 

"(A) TO MAKE AGREEMENTS, REQUIRING, AS A CONDITION OF CONTINUED
EMPLOYMENT, THAT WITHIN SIXTY DAYS FOLLOWING THE BEGINNING OF SUCH
EMPLOYMENT, OR THE EFFECTIVE DATE OF SUCH AGREEMENTS, WHICHEVER IS THE
LATER, ALL EMPLOYEES SHALL BECOME MEMBERS OF THE LABOR ORGANIZATION
REPRESENTING THEIR CRAFT OR CLASS:  PROVIDED, THAT NO SUCH AGREEMENT
SHALL REQUIRE SUCH CONDITION OF EMPLOYMENT WITH RESPECT TO EMPLOYEES TO
WHOM MEMBERSHIP IS NOT AVAILABLE UPON THE SAME TERMS AND CONDITIONS AS
ARE GENERALLY APPLICABLE TO ANY OTHER MEMBER OR WITH RESPECT TO
EMPLOYEES TO WHOM MEMBERSHIP WAS DENIED OR TERMINATED FOR ANY REASON
OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE PERIODIC DUES,
INITIATION FEES, AND ASSESSMENTS (NOT INCLUDING FINES AND PENALTIES)
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP."  64 STAT. 1238 (1951), 45 U.S.C. SEC. 152, ELEVENTH (A). 

FN13  ITALICS SUPPLIED.  THE FULL TEXT OF THE SECTION IS:  "THE
REQUIREMENT OF MEMBERSHIP IN A LABOR ORGANIZATION IN AN AGREEMENT MADE
PURSUANT TO SUBPARAGRAPH (A) SHALL BE SATISFIED, AS TO BOTH A PRESENT
OR FUTURE EMPLOYEE IN ENGINE, TRAIN, YARD, OR HOSTLING SERVICE  ...  IF
SAID EMPLOYEE SHALL HOLD OR ACQUIRE MEMBERSHIP IN ANY ONE OF THE LABOR
ORGANIZATIONS, NATIONAL IN SCOPE, ORGANIZED IN ACCORDANCE WITH THIS ACT
AND ADMITTING TO MEMBERSHIP EMPLOYEES OF A CRAFT OR CLASS IN ANY OF
SAID SERVICES; AND NO (CHECKOFF) AGREEMENT MADE PURSUANT TO
SUBPARAGRAPH (B) SHALL PROVIDE FOR DEDUCTIONS FROM HIS WAGES FOR
PERIODIC DUES, INITIATION FEES, OR ASSESSMENTS PAYABLE TO ANY LABOR
ORGANIZATION OTHER THAN THAT IN WHICH HE HOLDS MEMBERSHIP:  PROVIDED,
HOWEVER, THAT AS TO AN EMPLOYEE IN ANY OF SAID SERVICES ON A PARTICULAR
CARRIER AT THE EFFECTIVE DATE OF ANY SUCH AGREEMENT ON A CARRIER, WHO
IS NOT A MEMBER OF ANY ONE OF THE LABOR ORGANIZATIONS, NATIONAL IN
SCOPE, ORGANIZED IN ACCORDANCE WITH THIS ACT AND ADMITTING TO
MEMBERSHIP EMPLOYEES OF A CRAFT OR CLASS IN ANY OF SAID SERVICES, SUCH
EMPLOYEE, AS A CONDITION OF CONTINUING HIS EMPLOYMENT, MAY BE REQUIRED
TO BECOME A MEMBER OF THE ORGANIZATION REPRESENTING THE CRAFT IN WHICH
HE IS EMPLOYED ON THE EFFECTIVE DATE OF THE FIRST AGREEMENT APPLICABLE
TO HIM:  PROVIDED, FURTHER, THAT NOTHING HEREIN OR IN ANY SUCH
AGREEMENT OR AGREEMENTS SHALL PREVENT AN EMPLOYEE FROM CHANGING
MEMBERSHIP FORM ONE ORGANIZATION TO ANOTHER ORGANIZATION ADMITTING TO
MEMBERSHIP EMPLOYEES OF A CRAFT OR CLASS IN ANY OF SAID SERVICES."  64
STAT. 1238 (1951), 45 U.S.C. SEC. 152, ELEVENTH (C).    FN14  48 STAT.
1189 (1934), 45 U.S.C. SEC. 153, FIRST (A).  (ITALICS SUPPLIED.) 

FN15  THE NATIONAL MEDIATION BOARD WAS SET UP BY SECTION 4, FIRST OF
THE ACT.  48 STAT. 1193 (1934), 45 U.S.C. SEC. 154, FIRST.  IT IS AN
INDEPENDENT FEDERAL AGENCY WITH THREE MEMBERS, APPOINTED BY THE
PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE.  ITS FUNCTION, IN
THE MAIN, IS TO TRY TO SETTLE "MAJOR" DISPUTES IN THE RAILROAD
INDUSTRY, WHICH ARE NOT WITHIN THE JURISDICTION OF THE NRAB. 

FN16  THE FULL TEXT OF SUBSECTION (F) IS:  "IN THE EVENT A DISPUTE
ARISES AS TO THE RIGHT OF ANY NATIONAL LABOR ORGANIZATION TO
PARTICIPATE AS PER PARAGRAPH (C) OF THIS SECTION IN THE SELECTION AND
DESIGNATION OF THE LABOR MEMBERS OF THE ADJUSTMENT BOARD, THE SECRETARY
OF LABOR SHALL INVESTIGATE THE CLAIM OF SUCH LABOR ORGANIZATION TO
PARTICIPATE, AND IF SUCH CLAIM IN THE JUDGMENT OF THE SECRETARY OF
LABOR HAS MERIT, THE SECRETARY SHALL NOTIFY THE MEDIATION BOARD
ACCORDINGLY, AND WITHIN TEN DAYS AFTER RECEIPT OF SUCH ADVICE THE
MEDIATION BOARD SHALL REQUEST THOSE NATIONAL LABOR ORGANIZATIONS DULY
QUALIFIED AS PER PARAGRAPH (C) OF THIS SECTION TO PARTICIPATE IN THE
SELECTION AND DESIGNATION OF THE LABOR MEMBERS OF THE ADJUSTMENT BOARD
TO SELECT A REPRESENTATIVE.  SUCH REPRESENTATIVE, TOGETHER WITH A
REPRESENTATIVE LIKEWISE DESIGNATED BY THE CLAIMANT, AND A THIRD OR
NEUTRAL PARTY DESIGNATED BY THE MEDIATION BOARD, CONSTITUTING A BOARD
OF THREE, SHALL WITHIN THIRTY DAYS AFTER THE APPOINTMENT OF THE NEUTRAL
MEMBER, INVESTIGATE THE CLAIMS OF THE LABOR ORGANIZATION DESIRING
PARTICIPATION AND DECIDE WHETHER OR NOT IT WAS ORGANIZED IN ACCORDANCE
WITH SECTION 2 HEREOF AND IS OTHERWISE PROPERLY QUALIFIED TO
PARTICIPATE IN THE SELECTION OF THE LABOR MEMBERS OF THE ADJUSTMENT
BOARD, AND THE FINDINGS OF SUCH BOARDS OF THREE SHALL BE FINAL AND
BINDING."  48 STAT. 1190 (1934), 45 U.S.C. SEC. 153, FIRST (F). 

FN17  SEE FRANKFURTER, SOME REFLECTIONS ON THE READING OF STATUTES,
IN THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK,
VOLUME 2, NO. 6 (1947). 

FN18  IN 1934 A PROHIBITION AGAINST THE UNION SHOP AND THE CHECKOFF
WAS PUT INTO THE RAILWAY LABOR ACT AT THE REQUEST OF THE UNIONS
THEMSELVES, SINCE EMPLOYERS HAD USED THESE DEVICES TO ESTABLISH AND
MAINTAIN COMPANY UNIONS.  SEE S. REP. NO. 2262, 81ST CONG., 2D SESS.,
PP. 2-3 (1950); HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, ON H.R. 7789, 81ST CONG., 2D SESS., PP. 3-4, 7-8, 16
17, (1950). 

FN19  SEE ID., AT PP. 10, 28, 29, 37; H.R. REP. NO. 2811, 81ST CONG.,
2D SESS., P. 4 (1950). 

FN20  HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, ON H.R.  7789, 81ST CONG., 2D SESS. (1950); HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, ON S.
3295, 81ST CONG., 2D SESS. (1950). 

FN21  HOUSE HEARINGS, SUPRA, AT PP. 30-31, 32-33, 35-36, 42-43, 78
81, 126, 192-194; SENATE HEARINGS, SUPRA, AT PP. 18-19, 67-68, 69, 73,
78-79.  SEE ALSO LEVINSON, UNION SHOP UNDER THE RAILWAY LABOR ACT, 6
LABOR L.J. 441, 443-448 (1955). 

FN22  SEE H.R. REP. NO. 2811, SUPRA, AT PP. 5-6. 

FN23  96 CONG. REC. 15735. 

FN24  ID., AT 15736. 

FN25  ID., AT 16268. 

FN26  SEE N. 13, SUPRA. 

FN27  96 CONG. REC. 16268.  SEE ALSO ID., AT 16261, 16328-16330. 

FN28  ID., AT 16268. 

FN29  HAD CONGRESS WANTED TO CONFER BLANKET "UNION-SHOPPING" RIGHTS
ON EMPLOYEES, IT PRESUMABLY WOULD HAVE ALLOWED NONMEMBERS OF A UNION TO
JOIN ANY UNION (QUALIFIED UNDER SECTION 2, ELEVENTH) AT THE TIME A
UNION-SHOP AGREEMENT WAS FIRST PUT INTO EFFECT.  HOWEVER, THE NEXT-TO
LAST PROVISO OF SECTION 2, ELEVENTH (C) STATES THAT WHEN A UNION-SHOP
PROVISION IS FIRST SIGNED, EMPLOYEES NOT BELONGING TO A QUALIFIED UNION
MAY BE REQUIRED TO JOIN THAT UNION WHICH REPRESENTS THE CRAFT IN WHICH
THEY ARE EMPLOYED AT THE TIME THE AGREEMENT BECOMES EFFECTIVE.  SEE N.
13, SUPRA.  THUS WHEN THIS AGREEMENT BETWEEN PETITIONERS WAS FIRST PUT
INTO EFFECT, RYCHLIK, HAD HE BELONGED TO NO UNION AT ALL, WOULD HAVE
BEEN REQUIRED TO JOIN THE BROTHERHOOD SPECIFICALLY, AND COULD NOT HAVE
CHOSEN TO JOIN EVEN SUCH COMPETING UNIONS WHICH ARE CONCEDEDLY NATIONAL
IN SCOPE, NOT TO SPEAK OF UROC.  IN OTHER WORDS, THIS PROVISO
COMPLETELY NEGATES THE ARGUMENT THAT THE PURPOSE OF THE STATUTE WAS TO
ALLOW EMPLOYEES TO CHOOSE BETWEEN UNIONS. 

FN30  SEE SENATOR HILL'S STATEMENT, 96 CONG. REC. 16329:  "THE
REPRESENTATIVES OF THE RAILWAY ORGANIZATIONS SAT AROUND A TABLE
TOGETHER AND WORKED OUT THE DETAILS OF THE AMENDMENT, AND THEN BROUGHT
IT TO THE SENATOR FROM OHIO AND THE SENATOR FROM ALABAMA, AND WE SAW
THAT THE AMENDMENT WAS EXACTLY SIMILAR TO THE COMMITTEE AMENDMENT,
EXCEPT THAT IT SPELLED OUT IN MORE DETAIL THE SAFEGUARDS WHICH WERE
DEEMED NECESSARY IN ORDER TO PROPERLY DO THE JOB." 

FN31  SEE LEVINSON, SUPRA, N. 21. 

FN32  SEE N. 14, SUPRA.  THE "ORGANIZED IN ACCORDANCE" LANGUAGE
REFERS TO SECTION 2, FOURTH, WHICH PROHIBITS COMPANY UNIONS, AND WHICH
HAD ALSO BEEN ON THE BOOKS SINCE 1934.  48 STAT. 1187 (1934), 45 U.S.C.
SEC. 152, FOURTH. 

FN33  SEE N. 16, SUPRA. 

FN34  RESPONDENT ARGUES THAT THE STANDARDS OF SECTION 3 ARE NOT THE
SAME AS THOSE OF SECTION 2, ELEVENTH (C), AND THAT THEREFORE THE LATTER
PROVISION CANNOT REFER TO THE UNIONS QUALIFIED UNDER THE FORMER.  HE
POINTS OUT THAT SECTION 3, FIRST (F) MAKES IT THE DUTY OF THE BOARD OF
THREE TO DETERMINE WHETHER THE CLAIMANT UNION IS "ORGANIZED IN
ACCORDANCE WITH SECTION 2 HEREOF AND IS OTHERWISE PROPERLY QUALIFIED TO
PARTICIPATE IN THE SELECTION OF THE LABOR MEMBERS OF THE ADJUSTMENT
BOARD," AND ARGUES THAT THE WORDS "OTHERWISE PROPERLY QUALIFIED" MUST
REFER TO QUALIFICATIONS NOT LISTED IN SECTION 2, ELEVENTH (C).  BUT WE
THINK IT CLEAR THAT THESE WORDS MERELY INCORPORATE BY REFERENCE THE
QUALIFICATIONS LISTED IN SECTION 3, FIRST (A) FOR UNION ELECTORS, AND
THE LATTER SECTION DEFINES THESE QUALIFICATIONS IN TERMS IDENTICAL TO
THE UNION-SHOP SECTION.  SEE 69 HARV. L. REV. 1512, 1514. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE DECISION BELOW, IF ALLOWED TO STAND, WOULD TEND TO DISLOCATE THE
SCHEME THAT CONGRESS HAS SEEN FIT TO DEVISE FOR THE REGULATION OF
INDUSTRIAL RELATIONS ON RAILROADS, AND SO I JOIN IN REVERSING THE
JUDGMENT.  BUT I GET THERE BY A DIFFERENT ROUTE FROM THE COURT'S.  IN
MY VIEW OF THE RAILWAY LABOR ACT, THE DISTRICT COURT HAD NO
JURISDICTION OF THIS ACTION AND THE COMPLAINT SHOULD BE DISMISSED FOR
WANT OF IT, NOT ON THE MERITS. 

THE GOVERNING OUTLOOK FOR CONSTRUING THE RAILWAY LABOR ACT IS
HOSPITABLE REALIZATION OF THE FACT THAT IT IS PRIMARILY AN INSTRUMENT
OF INDUSTRIAL GOVERNMENT FOR RAILROADING BY THE INDUSTRY ITSELF,
THROUGH THE CONCENTRATED AGENCIES OF RAILROAD EXECUTIVES AND THE
RAILROAD UNIONS.  (FOR DETAILS, SEE THE DISSENTING OPINIONS IN ELGIN,
JOLIET & EASTERN R. CO. V. BURLEY, 325 U.S. 711, 749; 327 U.S. 661,
667.)  THE DOMINANT INFERENCE THAT THE COURT HAS DRAWN FROM THIS FACT
IS EXCLUSION OF THE COURTS FROM THIS PROCESS OF COLLABORATIVE SELF
GOVERNMENT.  SEE, E.G., GENERAL COMMITTEE V. MISSOURI-KANSAS-TEXAS R.
CO., 320 U.S. 323; ORDER OF RAILWAY CONDUCTORS V. PITNEY, 326 U.S. 561;
SLOCUM V. DELAWARE, LACKAWANNA & WESTERN R. CO., 339 U.S. 239.  NEITHER
MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630, NOR ORDER OF RAILWAY
CONDUCTORS V. SWAN, 329 U.S. 520, IS FAIRLY TO BE DEEMED AN EXCEPTION
TO THE GENERAL PRINCIPLE AND, IN ANY EVENT, THOSE CASES INVOLVE
CIRCUMSTANCES NOT RELEVANT TO THE PRESENT SITUATION. 

THERE IS ONE QUALIFICATION TO THE PRINCIPLE I HAVE STATED, OR,
RATHER, THERE IS A COUNTER-PRINCIPLE TO BE RESPECTED.  THIS IS THE
DOCTRINE ESTABLISHED BY STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192. 
THE SHORT OF IT IS THAT SINCE EVERY RAILROAD EMPLOYEE IS REPRESENTED BY
UNION AGENTS WHO SIT ON A SYSTEM BOARD OF ADJUSTMENT, SUCH
REPRESENTATIVES ARE IN WHAT AMOUNTS TO A FIDUCIARY POSITION:  THEY MUST
NOT EXERCISE THEIR POWER IN AN ARBITRARY WAY AGAINST SOME MINORITY
INTEREST.  THE FACT OF A GENERAL CONFLICT OF INTEREST BETWEEN A
MINORITY OF UNION MEMBERS AND REPRESENTATIVES DESIGNATED BY THE
MAJORITY DOES NOT OF ITSELF VITIATE THE PRESUPPOSITION OF SELF
GOVERNMENT AND DOES NOT OF ITSELF SUBJECT THE SYSTEM BOARD ACTION TO
JUDICIAL REVIEW.  CONFLICT BETWEEN A MAJORITY AND A MINORITY IS A
COMMONPLACE IN THE WHOLE COLLECTIVE BARGAINING PROCESS.  BUT THE
BARGAINING REPRESENTATIVES OWE A JUDICIALLY ENFORCEABLE DUTY OF
FAIRNESS TO ALL OF THE COMPONENTS OF THE WORKING FORCE WHEN A SPECIFIC
CLAIM IS IN CONTROVERSY. 

THE DETERMINATION OF THE SYSTEM BOARD ON THE MERITS IS NOT OPEN TO
JUDICIAL REVIEW, EVEN ON SO-CALLED LEGAL QUESTIONS.  IT IS NOT FOR A
COURT TO SAY THAT A COMPLAINT AGAINST THE SYSTEM BOARD MUST FAIL
BECAUSE THE SYSTEM BOARD RIGHTLY HELD AGAINST THE COMPLAINANT.  RIGHT
OR WRONG, A COURT HAS NO JURISDICTION TO REVIEW WHAT THE SYSTEM BOARD
DID, UNLESS A COMPLAINANT ASSERTS ARBITRARINESS AND SEEKS TO ENFORCE
THE LIMITED PROTECTION ESTABLISHED IN THE STEELE CASE.  IT IS NOT FOR A
COURT TO DECIDE AS AN ABSTRACT ISSUE WHAT PROCEDURE A UNION MUST OR MAY
PURSUE TO ESTABLISH ITS STATUS AS AN ORGANIZATION "NATIONAL IN SCOPE,"
WITHIN SEC. 2, ELEVENTH (C) OF THE RAILWAY LABOR ACT, NOR WHETHER OR
WHEN AN INDIVIDUAL CLAIMING THROUGH SUCH A RIVAL UNION MAY ASSERT ITS
CLAIM FOR HIS BENEFIT.  (AS BEARING ON THE LEGAL COMPLEXITIES RAISED BY
SUCH INTERRELATIONSHIP BETWEEN A MEMBER AND AN ORGANIZATION, SEE THE
OPINION OF MR. JUSTICE JACKSON IN JOINT ANTI-FASCIST COMMITTEE V.
MCGRATH, 341 U.S. 123, 183.) 

FOR RYCHLIK TO HAVE BROUGHT HIMSELF WITHIN THE STEELE CASE IT WOULD
HAVE BEEN NECESSARY TO CHARGE THAT THE SYSTEM BOARD HAD MADE ITS
DETERMINATION ARBITRARILY AND THAT ON THE BASIS OF THIS ARBITRARY
DETERMINATION HE HAD BEEN DISCHARGED.  ON SUCH A CLAIM, AND ONLY ON
SUCH A CLAIM, WOULD HE HAVE BEEN ENTITLED TO JUDICIAL RELIEF.  IN THE
ABSENCE OF SUCH A CLAIM, THE DISTRICT COURT WAS WITHOUT JURISDICTION TO
ENTERTAIN THE COMPLAINT. 
..END :






ROGERS V. MISSOURI PACIFIC RAILROAD CO. 352 U.S. 500 


NO. 28.  ARGUED NOVEMBER 7, 1956 - DECIDED FEBRUARY 25, 1957 - 284
S.W.2D 467, REVERSED. 


IN AN ACTION IN A MISSOURI STATE COURT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, BROUGHT AGAINST RESPONDENT RAILROAD BY PETITIONER, WHO
WAS INJURED IN A FALL FROM A CULVERT WHILE WORKING IN A SECTION GANG
BURNING WEEDS BESIDE THE TRACK AND WATCHING A PASSING TRAIN FOR
HOTBOXES, THE JURY AWARDED DAMAGES TO PETITIONER.  THE STATE SUPREME
COURT REVERSED UPON THE GROUND THAT PETITIONER'S EVIDENCE DID NOT
SUPPORT THE FINDING OF RESPONDENT'S LIABILITY.  THIS COURT GRANTED
CERTIORARI.  HELD:  THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY
FINDING FOR PETITIONER, AND THE JUDGMENT IS REVERSED.  PP. 501-511. 

1.  UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE TEST OF A JURY
CASE IS WHETHER THE PROOFS JUSTIFY WITH REASON THE CONCLUSION THAT
EMPLOYER NEGLIGENCE PLAYED ANY PART, EVEN THE SLIGHTEST, IN PRODUCING
THE EMPLOYEE'S INJURY.  PP. 505-509. 

2.  COGNIZANT OF THE DUTY TO EFFECTUATE THE INTENTION OF THE CONGRESS
TO SECURE THE RIGHT TO A JURY DETERMINATION IN CASES UNDER THE ACT,
THIS COURT IS VIGILANT TO EXERCISE ITS POWER OF REVIEW IN ANY CASE
WHERE IT APPEARS THAT THE LITIGANTS HAVE BEEN IMPROPERLY DEPRIVED OF
THAT DETERMINATION.  P. 509. 

3.  THE FACT THAT CONGRESS HAS NOT SUBSTITUTED A SCHEME OF WORKMEN'S
COMPENSATION CANNOT RELIEVE THIS COURT OF ITS OBLIGATION TO EFFECTUATE
THE EXISTING ACT BY GRANTING CERTIORARI TO CORRECT IMPROPER
ADMINISTRATION OF THE ACT AND TO PREVENT ITS EROSION BY NARROW AND
NIGGARDLY CONSTRUCTION.  P. 509. 

4.  WHEN THIS COURT HAS GRANTED CERTIORARI IN A FEDERAL EMPLOYERS'
LIABILITY ACT CASE, THE LITIGANTS ARE ENTITLED TO THE SAME MEASURE OF
REVIEW ON THE MERITS AS IN EVERY OTHER CASE.  P. 509. 

5.  IN ACTIONS UNDER THE ACT, CONGRESS HAS VESTED THE POWER OF
DECISION EXCLUSIVELY IN THE JURY IN ALL BUT THE INFREQUENT CASES WHERE
FAIR-MINDED JURORS CANNOT HONESTLY DIFFER WHETHER FAULT OF THE EMPLOYER
PLAYED ANY PART IN THE EMPLOYEE'S INJURY.  PP. 504-505, 509-510. 

6.  SPECIAL AND IMPORTANT REASONS FOR THE GRANT OF CERTIORARI IN
THESE CASES EXIST WHEN LOWER FEDERAL AND STATE COURTS PERSISTENTLY
DEPRIVE LITIGANTS OF THEIR RIGHT TO A JURY DETERMINATION.  P. 510. 

ROGERS V. MISSOURI PACIFIC RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

A JURY IN THE CIRCUIT COURT OF ST. LOUIS AWARDED DAMAGES TO THE
PETITIONER IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 
(FN1)  THE SUPREME COURT OF MISSOURI REVERSED UPON THE GROUND THAT THE
PETITIONER'S EVIDENCE DID NOT SUPPORT THE FINDING OF RESPONDENT'S
LIABILITY.  (FN2)  THIS COURT GRANTED CERTIORARI TO CONSIDER THE
QUESTION WHETHER THE DECISION INVADED THE JURY'S FUNCTION.  (FN3) 

PETITIONER WAS A LABORER IN A SECTION GANG, WORKING ON JULY 17, 1951,
ALONG A PORTION OF RESPONDENT'S DOUBLE-TRACK LINE WHICH, NEAR GARNER,
ARKANSAS, RUNS GENERALLY NORTH AND SOUTH.  THE TRACKS ARE ON BALLAST
TOPPING THE SURFACE OF A DIRT "DUMP" WITH SLOPING SIDES, AND THERE IS A
PATH ABOUT A YARD WIDE BORDERING EACH SIDE OF THE SURFACE BETWEEN THE
CREST OF THE SLOPE AND THE EDGE OF THE BALLAST.  WEEDS AND VEGETATION,
KILLED CHEMICALLY PREPARATORY TO BURNING THEM OFF, COVERED THE PATHS
AND SLOPES.  PETITIONER'S FOREMAN ASSIGNED HIM TO BURN OFF THE WEEDS
AND VEGETATION - THE FIRST TIME HE WAS GIVEN THAT TASK IN THE TWO
MONTHS HE HAD WORKED FOR THE RESPONDENT.  HE TESTIFIED THAT IT WAS
CUSTOMARY TO BURN OFF SUCH VEGETATION WITH A FLAME THROWER OPERATED
FROM A CAR RUNNING ON THE TRACKS.  RAILROAD WITNESSES TESTIFIED,
HOWEVER, THAT THE RESPONDENT DISCONTINUED THE USE OF FLAME THROWERS AT
LEAST A YEAR EARLIER BECAUSE THE FIRES STARTED BY THEM SOMETIMES SPREAD
BEYOND THE RAILROAD RIGHT OF WAY. 

PETITIONER WAS SUPPLIED WITH A CRUDE HAND TORCH AND WAS INSTRUCTED TO
BURN OFF THE WEEDS AND VEGETATION ALONG THE WEST PATH AND FOR TWO OR
THREE FEET DOWN THE WEST SLOPE.  THE EVENTS LEADING TO HIS MISHAP
OCCURRED AFTER HE PROCEEDED WITH THE WORK TO A POINT WITHIN THIRTY TO
THIRTY-FIVE YARDS OF A CULVERT ADJOINING THE PATH. 

PETITIONER TESTIFIED, WITHOUT CONTRADICTION, THAT THE FOREMAN
INSTRUCTED HIM AND OTHER MEMBERS OF THE SECTION GANG TO STOP WHAT THEY
WERE DOING WHEN A TRAIN PASSED AND TO TAKE POSITIONS OFF THE TRACKS AND
TIES TO OBSERVE THE JOURNALS OF THE PASSING TRAIN FOR HOTBOXES.  THE
INSTRUCTIONS WERE EXPLICIT NOT TO GO ON EITHER OF THE TRACKS OR TO
STAND ON OR NEAR THE ENDS OF THE TIES WHEN A TRAIN WAS PASSING ON A FAR
TRACK.  THIS WAS A SAFETY PRECAUTION BECAUSE "THE SOUND OF ONE TRAIN
WOULD DEADEN THE SOUND OF ANOTHER ONE THAT POSSIBLY WOULD COME FROM THE
OTHER WAY." 

ON THE DAY PETITIONER HEARD THE WHISTLE OF A TRAIN WHICH WAS
APPROACHING FROM BEHIND HIM ON THE EAST TRACK.  HE PROMPTLY "QUIT
FIRING" AND RAN NORTH TO A PLACE ON THE PATH NEAR THE MENTIONED
CULVERT.  HE WAS STANDING A FEW FEET FROM THE CULVERT OBSERVING THE
TRAIN FOR HOTBOXES WHEN HE BECAME ENVELOPED IN SMOKE AND FLAMES.  THE
PASSING TRAIN HAD FANNED THE FLAMES OF THE BURNING VEGETATION AND
WEEDS, CARRYING THE FIRE TO THE VEGETATION AROUND HIS POSITION.  HE
THREW HIS ARM OVER HIS FACE, RETREATED QUICKLY BACK ON THE CULVERT AND
SLIPPED AND FELL FROM THE TOP OF THE CULVERT, SUFFERING THE SERIOUS
INJURIES FOR WHICH HE SOUGHT DAMAGES IN THIS SUIT. 

THE COMPLAINT ALLEGES NEGLIGENCE IN THAT PETITIONER WAS "REQUIRED TO
WORK AT A PLACE IN CLOSE PROXIMITY TO DEFENDANT'S RAILROAD TRACKS,
WHEREON TRAINS MOVED AND PASSED, CAUSING THE FIRE FROM SAID BURNING
WEEDS AND THE SMOKE THEREFROM TO COME DANGEROUSLY CLOSE TO PLAINTIFF
AND REQUIRING PLAINTIFF TO MOVE AWAY FROM SAID DANGER."  NEGLIGENCE WAS
ALSO ALLEGED IN THAT THE SURFACE OF THE CULVERT WAS NOT PROPERLY
MAINTAINED BECAUSE, INSTEAD OF THE USUAL FLAT SURFACE GIVING FIRM
FOOTING FOR WORKMEN, THE SURFACE WAS "COVERED WITH LOOSE AND SLOPING
GRAVEL WHICH DID NOT PROVIDE ADEQUATE OR SUFFICIENT FOOTING FOR
PLAINTIFF TO THUS MOVE OR WORK UNDER THE CIRCUMSTANCES." 

WE THINK THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY FINDING
FOR THE PETITIONER.  THE TESTIMONY THAT THE BURNING OFF OF WEEDS AND
VEGETATION WAS ORDINARILY DONE WITH FLAME THROWERS FROM CARS ON THE
TRACKS AND NOT, AS HERE, BY A WORKMAN ON FOOT USING A CRUDE HAND TORCH,
WHEN THAT EVIDENCE IS CONSIDERED WITH THE UNCONTRADICTED TESTIMONY THAT
THE PETITIONER WAS WHERE HE WAS ON THIS NARROW PATH ATOP THE DIRT
"DUMP" IN FURTHERANCE OF EXPLICIT ORDERS TO WATCH FOR HOTBOXES,
SUPPLIED AMPLE SUPPORT FOR A JURY FINDING THAT RESPONDENT'S NEGLIGENCE
PLAYED A PART IN THE PETITIONER'S INJURY.  THESE WERE PROBATIVE FACTS
FROM WHICH THE JURY COULD FIND THAT RESPONDENT WAS OR SHOULD HAVE BEEN
AWARE OF CONDITIONS WHICH CREATED A LIKELIHOOD THAT PETITIONER, IN
PERFORMING THE DUTIES REQUIRED OF HIM, WOULD SUFFER JUST SUCH AN INJURY
AS HE DID.  (FN4)  COMMON EXPERIENCE TEACHES BOTH THAT A PASSING TRAIN
WILL FAN THE FLAMES OF A FIRE, AND THAT A PERSON SUDDENLY ENVELOPED IN
FLAMES AND SMOKE WILL INSTINCTIVELY REACT BY RETREATING FROM THE DANGER
AND IN THE PROCESS PAY SCANT HEED TO OTHER DANGERS WHICH MAY IMPERIL
HIM.  IN THIS VIEW, IT WAS AN IRRELEVANT CONSIDERATION WHETHER THE
IMMEDIATE REASON FOR HIS SLIPPING OFF THE CULVERT WAS THE PRESENCE OF
GRAVEL NEGLIGENTLY ALLOWED BY RESPONDENT TO REMAIN ON THE SURFACE, OR
WAS SOME CAUSE NOT IDENTIFIED FROM THE EVIDENCE. 

THE MISSOURI SUPREME COURT BASED ITS REVERSAL UPON ITS FINDING OF AN
ALLEGED ADMISSION BY THE PETITIONER THAT HE KNEW IT WAS HIS PRIMARY
DUTY TO WATCH THE FIRE.  FROM THAT PREMISE THE MISSOURI COURT REASONED
THAT PETITIONER WAS INATTENTIVE TO THE FIRE AND THAT THE EMERGENCY
WHICH CONFRONTED HIM "WAS AN EMERGENCY BROUGHT ABOUT BY HIMSELF." 
(FN5)  IT SAID THAT IF, AS PETITIONER TESTIFIED, THE IMMEDIATE CAUSE OF
HIS FALL WAS THAT LOOSE GRAVEL ON THE SURFACE OF THE CULVERT ROLLED OUT
FROM UNDER HIM, YET IT WAS HIS INATTENTION TO THE FIRE WHICH CAUSED IT
TO SPREAD AND OBLIGED PETITIONER "TO MOVE BLINDLY AWAY AND FALL," AND
THIS WAS "SOMETHING EXTRAORDINARY, UNRELATED TO, AND DISCONNECTED FROM
THE INCLINE OF THE GRAVEL AT THE CULVERT."  (FN6) 

WE INTERPRET THE FOREGOING TO MEAN THAT THE MISSOURI COURT FOUND AS A
MATTER OF LAW THAT THE PETITIONER'S CONDUCT WAS THE SOLE CAUSE OF HIS
MISHAP.  BUT WHEN THE PETITIONER AGREED THAT HIS PRIMARY DUTY WAS TO
WATCH THE FIRE HE DID NOT ALSO SAY THAT HE WAS RELIEVED OF THE DUTY TO
STOP TO WATCH A PASSING TRAIN FOR HOTBOXES.  INDEED, NO WITNESS
TESTIFIED THAT THE INSTRUCTION WAS COUNTERMANDED.  AT BEST, UNCERTAINTY
AS TO THE FACT ARISES FROM THE PETITIONER'S TESTIMONY, AND IN THAT
CIRCUMSTANCE NOT THE COURT, BUT THE JURY, WAS THE TRIBUNAL TO DETERMINE
THE FACT. 

WE MAY ASSUME THAT THE JURY COULD PROPERLY HAVE REACHED THE COURT'S
CONCLUSION.  BUT, AS THE PROBATIVE FACTS ALSO SUPPORTED WITH REASON THE
VERDICT FAVORABLE TO THE PETITIONER, (FN7) THE DECISION WAS EXCLUSIVELY
FOR THE JURY TO MAKE.  (FN8)  THE JURY WAS INSTRUCTED TO RETURN A
VERDICT FOR THE RESPONDENT IF IT WAS FOUND THAT NEGLIGENCE OF THE
PETITIONER WAS THE SOLE CAUSE OF HIS MISHAP.  (FN9)  WE MUST TAKE IT
THAT THE VERDICT WAS OBEDIENT TO THE TRIAL JUDGE'S CHARGE AND THAT THE
JURY FOUND THAT SUCH WAS NOT THE CASE BUT THAT PETITIONER'S INJURY
RESULTED AT LEAST IN PART FROM THE RESPONDENT'S NEGLIGENCE. 

THE OPINION MAY ALSO BE READ AS BASING THE REVERSAL ON ANOTHER
GROUND, NAMELY, THAT IT APPEARED TO THE COURT THAT THE PETITIONER'S
CONDUCT WAS AT LEAST AS PROBABLE A CAUSE FOR HIS MISHAP AS ANY
NEGLIGENCE OF THE RESPONDENT, AND THAT IN SUCH CASE THERE WAS NO CASE
FOR THE JURY.  BUT THAT WOULD MEAN THAT THERE IS NO JURY QUESTION IN
ACTIONS UNDER THIS STATUTE, ALTHOUGH THE EMPLOYEE'S PROOFS SUPPORT WITH
REASON A VERDICT IN HIS FAVOR, UNLESS THE JUDGE CAN SAY THAT THE JURY
MAY EXCLUDE THE IDEA THAT HIS INJURY WAS DUE TO CAUSES WITH WHICH THE
DEFENDANT WAS NOT CONNECTED, OR, STATED ANOTHER WAY, UNLESS HIS PROOFS
ARE SO STRONG THAT THE JURY, ON GROUNDS OF PROBABILTIY, MAY EXCLUDE A
CONCLUSION FAVORABLE TO THE DEFENDANT.  THAT IS NOT THE GOVERNING
PRINCIPLE DEFINING THE PROOF WHICH REQUIRES A SUBMISSION TO THE JURY IN
THESE CASES.  THE MISSOURI COURT'S OPINION IMPLIES ITS VIEW THAT THIS
IS THE GOVERNING STANDARD BY SAYING THAT THE PROOFS MUST SHOW THAT "THE
INJURY WOULD NOT HAVE OCCURRED BUT FOR THE NEGLIGENCE" OF HIS EMPLOYER,
AND THAT "THE TEST OF WHETHER THERE IS CAUSAL CONNECTION IS THAT,
ABSENT THE NEGLIGENT ACT THE INJURY WOULD NOT HAVE OCCURRED."  (FN10)
THAT IS LANGUAGE OF PROXIMATE CAUSATION WHICH MAKES A JURY QUESTION
DEPENDENT UPON WHETHER THE JURY MAY FIND THAT THE DEFENDANT'S
NEGLIGENCE WAS THE SOLE, EFFICIENT, PRODUCING CAUSE OF INJURY. 

UNDER THIS STATUTE THE TEST OF A JURY CASE IS SIMPLY WHETHER THE
PROOFS JUSTIFY WITH REASON THE CONCLUSION THAT EMPLOYER NEGLIGENCE
PLAYED ANY PART, EVEN THE SLIGHTEST, IN PRODUCING THE INJURY OR DEATH
FOR WHICH DAMAGES ARE SOUGHT.  (FN11)  IT DOES NOT MATTER THAT, FROM
THE EVIDENCE, THE JURY MAY ALSO WITH REASON, ON GROUNDS OF PROBABILITY,
ATTRIBUTE THE RESULT TO OTHER CAUSES, INCLUDING THE EMPLOYEE'S
CONTRIBUTORY NEGLIGENCE.  (FN12)  JUDICIAL APPRAISAL OF THE PROOFS TO
DETERMINE WHETHER A JURY QUESTION IS PRESENTED IS NARROWLY LIMITED TO
THE SINGLE INQUIRY WHETHER, WITH REASON, THE CONCLUSION MAY BE DRAWN
THAT NEGLIGENCE OF THE EMPLOYER PLAYED ANY PART AT ALL IN THE INJURY OR
DEATH.  (FN13)  JUDGES ARE TO FIX THEIR SIGHTS PRIMARILY TO MAKE THAT
APPRAISAL AND, IF THAT TEST IS MET, ARE BOUND TO FIND THAT A CASE FOR
THE JURY IS MADE OUT WHETHER OR NOT THE EVIDENCE ALLOWS THE JURY A
CHOICE OF OTHER PROBABILITIES.  THE STATUTE EXPRESSLY IMPOSES LIABILITY
UPON THE EMPLOYER TO PAY DAMAGES FOR INJURY OR DEATH DUE "IN WHOLE OR
IN PART" TO ITS NEGLIGENCE.  (FN14) 

THE LAW WAS ENACTED BECAUSE THE CONGRESS WAS DISSATISFIED WITH THE
COMMON-LAW DUTY OF THE MASTER TO HIS SERVANT.  (FN15)  THE STATUTE
SUPPLANTS THAT DUTY WITH THE FAR MORE DRASTIC DUTY OF PAYING DAMAGES
FOR INJURY OR DEATH AT WORK DUE IN WHOLE OR IN PART TO THE EMPLOYER'S
NEGLIGENCE.  THE EMPLOYER IS STRIPPED OF HIS COMMON-LAW DEFENSES AND
FOR PRACTICAL PURPOSES THE INQUIRY IN THESE CASES TODAY RARELY PRESENTS
MORE THAN THE SINGLE QUESTION WHETHER NEGLIGENCE OF THE EMPLOYER PLAYED
ANY PART, HOWEVER SMALL, IN THE INJURY OR DEATH WHICH IS THE SUBJECT OF
THE SUIT.  (FN16)  THE BURDEN OF THE EMPLOYEE IS MET, AND THE
OBLIGATION OF THE EMPLOYER TO PAY DAMAGES ARISES, WHEN THERE IS PROOF,
EVEN THOUGH ENTIRELY CIRCUMSTANTIAL, (FN17) FROM WHICH THE JURY MAY
WITH REASON MAKE THAT INFERENCE. 

THE CONGRESS WHEN ADOPTING THE LAW WAS PARTICULARLY CONCERNED THAT
THE ISSUES WHETHER THERE WAS EMPLOYER FAULT AND WHETHER THAT FAULT
PLAYED ANY PART IN THE INJURY OR DEATH OF THE EMPLOYEE SHOULD BE
DECIDED BY THE JURY WHENEVER FAIR-MINDED MEN COULD REACH THESE
CONCLUSIONS ON THE EVIDENCE.  (FN18)  ORIGINALLY, JUDICIAL
ADMINISTRATION OF THE 1908 ACT SUBSTANTIALLY LIMITED THE CASES IN WHICH
EMPLOYEES WERE ALLOWED A JURY DETERMINATION.  THAT WAS BECAUSE THE
COURTS DEVELOPED CONCEPTS OF ASSUMPTION OF RISK (FN19) AND OF THE
COVERAGE OF THE LAW, (FN20) WHICH DEFEATED EMPLOYEE CLAIMS AS A MATTER
OF LAW.  CONGRESS CORRECTED THIS BY THE 1939 AMENDMENTS AND REMOVED THE
FETTERS WHICH HOBBLED THE FULL PLAY OF THE BASIC CONGRESSIONAL
INTENTION TO LEAVE TO THE FACT-FINDING FUNCTION OF THE JURY THE
DECISION OF THE PRIMARY QUESTION RAISED IN THESE CASES - WHETHER
EMPLOYER FAULT PLAYED ANY PART IN THE EMPLOYEE'S MISHAP.  (FN21) 

COGNIZANT OF THE DUTY TO EFFECTUATE THE INTENTION OF THE CONGRESS TO
SECURE THE RIGHT TO A JURY DETERMINATION, THIS COURT IS VIGILANT TO
EXERCISE ITS POWER OF REVIEW IN ANY CASE WHERE IT APPEARS THAT THE
LITIGANTS HAVE BEEN IMPROPERLY DEPRIVED OF THAT DETERMINATION.  (FN22)
SOME SAY THE ACT HAS SHORTCOMINGS AND WOULD PREFER A WORKMEN'S
COMPENSATION SCHEME.  THE FACT THAT CONGRESS HAS NOT SEEN FIT TO
SUBSTITUTE THAT SCHEME CANNOT RELIEVE THIS COURT OF ITS OBLIGATION TO
EFFECTUATE THE PRESENT CONGRESSIONAL INTENTION BY GRANTING CERTIORARI
TO CORRECT INSTANCES OF IMPROPER ADMINISTRATION OF THE ACT AND TO
PREVENT ITS EROSION BY NARROW AND NIGGARDLY CONSTRUCTION.  SIMILARLY,
ONCE CERTIORARI IS GRANTED, THE FACT THAT THE CASE ARISES UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT CANNOT IN ANY WISE JUSTIFY A FAILURE
ON OUR PART TO AFFORD THE LITIGANTS THE SAME MEASURE OF REVIEW ON THE
MERITS AS IN EVERY OTHER CASE.  (FN23) 

THE KIND OF MISCONCEPTION EVIDENCED IN THE OPINION BELOW, WHICH FAILS
TO TAKE INTO ACCOUNT THE SPECIAL FEATURES OF THIS STATUTORY NEGLIGENCE
ACTION THAT MAKE IT SIGNIFICANTLY DIFFERENT FROM THE ORDINARY COMMON
LAW NEGLIGENCE ACTION, HAS REQUIRED THIS COURT TO REVIEW A NUMBER OF
CASES.  (FN24) IN A RELATIVELY LARGE PERCENTAGE OF THE CASES REVIEWED,
THE COURT HAS FOUND THAT LOWER COURTS HAVE NOT GIVEN PROPER SCOPE TO
THIS INTEGRAL PART OF THE CONGRESSIONAL SCHEME.  WE REACH THE SAME
CONCLUSION IN THIS CASE.  (FN25)  THE DECISIONS OF THIS COURT AFTER THE
1939 AMENDMENTS TEACH THAT THE CONGRESS VESTED THE POWER OF DECISION IN
THESE ACTIONS EXCLUSIVELY IN THE JURY IN ALL BUT THE INFREQUENT CASES
(FN26) WHERE FAIR-MINDED JURORS CANNOT HONESTLY DIFFER WHETHER FAULT OF
THE EMPLOYER PLAYED ANY PART IN THE EMPLOYEE'S INJURY.  SPECIAL AND
IMPORTANT REASONS FOR THE GRANT OF CERTIORARI IN THESE CASES ARE
CERTAINLY PRESENT WHEN LOWER FEDERAL AND STATE COURTS PERSISTENTLY
DEPRIVE LITIGANTS OF THEIR RIGHT TO A JURY DETERMINATION.    WE HAVE
CONSIDERED THE REMAINING QUESTIONS NOT PASSED UPON BY THE SUPREME COURT
OF MISSOURI, AND FIND THEM TO BE UNSUBSTANTIAL.  ACCORDINGLY, WE REMAND
THE CASE FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

THE JUDGMENT IS REVERSED. 

FN1  35 STAT. 65, AS AMENDED, 36 STAT. 291, 53 STAT. 1404, 45 U.S.C.
SEC. 51 ET SEQ. 

FN2  284 S.W.2D 467. 

FN3  350 U.S. 964.    FN4  LILLIE V. THOMPSON, 332 U.S. 459. 

FN5  284 S.W.2D, AT 472. 

FN6  IBID. 

FN7  MYERS V. READING CO., 331 U.S. 477. 

FN8  "THE VERY ESSENCE OF (THE JURY'S) FUNCTION IS TO SELECT FROM
AMONG CONFLICTING INFERENCES AND CONCLUSIONS THAT WHICH IT CONSIDERS
MOST REASONABLE."  TENNANT V. PEORIA & P.U.R. CO., 321 U.S. 29, 35. 

FN9  THE JURY WAS NOT CHARGED THAT CONTRIBUTORY NEGLIGENCE, IF ANY,
WAS TO BE CONSIDERED MERELY IN DIMINUTION OF DAMAGES.  35 STAT. 66, 45
U.S.C. SEC. 53.  INSTRUCTION NO. 2 WAS AS FOLLOWS: 

"THE COURT INSTRUCTS THE JURY THAT UNDER THE LAW APPLICABLE TO THIS
CASE IT WAS THE DUTY OF THE PLAINTIFF TO EXERCISE ORDINARY CARE FOR HIS
OWN SAFETY, AT ALL TIMES, WHILE PERFORMING HIS DUTIES AS AN EMPLOYEE OF
THE DEFENDANT. 

"IN THIS CONNECTION, THE COURT INSTRUCTS THE JURY THAT IF YOU FIND
AND BELIEVE FROM THE EVIDENCE THAT ON JULY 17, 1951 THE PLAINTIFF,
JAMES C. ROGERS, WHILE AN EMPLOYEE OF THE DEFENDANT AND WHILE BURNING
WEEDS ON A PORTION OF DEFENDANT'S RIGHT-OF-WAY NEAR 'GARNER CROSSING'
NEAR THE CITY OF GARNER, ARKANSAS, DID MOVE ABOUT ON SAID RAILROAD
RIGHT-OF-WAY WITH HIS ARM OVER HIS EYES, AND DID MOVE BACKWARDS AND
SIDEWARDS WITHOUT LOOKING IN THE DIRECTION IN WHICH HE WAS WALKING, AND
IF YOU FURTHER FIND THAT UNDER THE CIRCUMSTANCES MENTIONED IN THE
EVIDENCE THE PLAINTIFF, IN EXERCISING ORDINARY CARE FOR HIS OWN SAFETY,
COULD HAVE AND SHOULD HAVE LOOKED IN THE DIRECTION IN WHICH HE WAS
WALKING, BUT FAILED TO DO SO AND, IF YOU FURTHER FIND THAT THE
PLAINTIFF IN FAILING TO DO SO DID NOT EXERCISE ORDINARY CARE FOR HIS
OWN SAFETY AND WAS GUILTY OF NEGLIGENCE AND THAT SUCH NEGLIGENCE, IF
ANY WAS THE SOLE PROXIMATE CAUSE OF HIS INJURIES, IF ANY, AND THAT SUCH
ALLEGED INJURIES, IF ANY, WERE NOT DIRECTLY CONTRIBUTED TO OR CAUSED BY
ANY NEGLIGENCE OF THE DEFENDANT IN ANY OF THE PARTICULARS SUBMITTED TO
YOU IN OTHER INSTRUCTIONS HEREIN, THEN, IN THAT EVENT, THE PLAINTIFF IS
NOT ENTITLED TO RECOVER AGAINST THE DEFENDANT, AND YOU WILL FIND YOUR
VERDICT IN FAVOR OF THE DEFENDANT." 

FN10  284 S.W.2D, AT 471. 

FN11  CORAY V. SOUTHERN PACIFIC CO., 335 U.S. 520. 

FN12  "  ...  THE FACT THAT THE EMPLOYEE MAY HAVE BEEN GUILTY OF
CONTRIBUTORY NEGLIGENCE SHALL NOT BAR A RECOVERY, BUT THE DAMAGES SHALL
BE DIMINISHED BY THE JURY IN PROPORTION TO THE AMOUNT OF NEGLIGENCE
ATTRIBUTABLE TO SUCH EMPLOYEE:  PROVIDED, THAT NO SUCH EMPLOYEE WHO MAY
BE INJURED OR KILLED SHALL BE HELD TO HAVE BEEN GUILTY OF CONTRIBUTORY
NEGLIGENCE IN ANY CASE WHERE THE VIOLATION BY SUCH COMMON CARRIER OF
ANY STATUTE ENACTED FOR THE SAFETY OF EMPLOYEES CONTRIBUTED TO THE
INJURY OR DEATH OF SUCH EMPLOYEE."  35 STAT.  66, 45 U.S.C. SEC. 53. 

FN13  PROOF OF VIOLATION OF CERTAIN SAFETY-APPLIANCE STATUTES WITHOUT
MORE PROVES NEGLIGENCE AND ALSO ELIMINATES CONTRIBUTORY NEGLIGENCE AS A
CONSIDERATION FOR ANY PURPOSE.  NOTE 11, SUPRA.  THE ONLY ISSUE THEN
REMAINING IS CAUSATION.  CARTER V. ATLANTA & ST. A.B.R. CO., 338 U.S.
430; MYERS V. READING CO., 331 U.S. 477. 

MOREOVER, "WHAT CONSTITUTES NEGLIGENCE FOR THE STATUTE'S PURPOSES IS
A FEDERAL QUESTION, NOT VARYING IN ACCORDANCE WITH THE DIFFERING
CONCEPTIONS OF NEGLIGENCE APPLICABLE UNDER STATE AND LOCAL LAWS FOR
OTHER PURPOSES.  FEDERAL DECISIONAL LAW FORMULATING AND APPLYING THE
CONCEPT GOVERNS."  URIE V. THOMPSON, 337 U.S. 163, 174. 

FN14  "  ...  EVERY COMMON CARRIER BY RAILROAD WHILE ENGAGING IN
COMMERCE BETWEEN ANY OF THE SEVERAL STATES  ...  SHALL BE LIABLE IN
DAMAGES TO ANY PERSON SUFFERING INJURY  ...  OR  ...  DEATH ...
RESULTING IN WHOLE OR IN PART FROM THE NEGLIGENCE OF ANY OF THE
OFFICERS, AGENTS, OR EMPLOYEES OF SUCH CARRIER  ...  ."  35 STAT. 65,
45 U.S.C. SEC. 51; CORAY V. SOUTHERN PACIFIC CO., 335 U.S. 520, 523
524. 

FN15  FOR A COMPREHENSIVE SURVEY OF THE HISTORY OF THE FELA, SEE
GRIFFITH, THE VINDICATION OF A NATIONAL PUBLIC POLICY UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, 18 LAW & CONTEMP.  PROB.  160. 

FN16  TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54. 

FN17  CIRCUMSTANTIAL EVIDENCE IS NOT ONLY SUFFICIENT, BUT MAY ALSO BE
MORE CERTAIN, SATISFYING AND PERSUASIVE THAN DIRECT EVIDENCE.  THE
ROBERT EDWARDS, 6 WHEAT.  187, 190. 

FN18  WHILE THE PRIMARY REASON WAS A PROTEST AGAINST UNDUE COMMENT BY
TRIAL JUDGES AS TO THE FACTS, THE ORIGINAL 1906 ACT PROVIDED:  "ALL
QUESTIONS OF NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE SHALL BE FOR THE
JURY."  34 STAT. 232.  HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE
COMMERCE ON H.R. 239, 59TH CONG., 1ST SESS. 68-69.  THE INCLUSION IN
THE 1908 STATUTE OF ANOTHER PROVISION, "ALL QUESTIONS OF FACT RELATING
TO NEGLIGENCE SHALL BE FOR THE JURY TO DETERMINE," WAS PROPOSED BUT NOT
ADOPTED.  THE VIEW PREVAILED THAT THIS WOULD BE SURPLUSAGE IN LIGHT OF
THE SEVENTH AMENDMENT EMBODYING THE COMMON-LAW TRADITION THAT FACT
QUESTIONS WERE FOR THE JURY.  HEARINGS BEFORE SENATE COMMITTEE ON
EDUCATION AND LABOR ON S. 5307, 60TH CONG., 1ST SESS. 8-9, 45-46. 

FN19  SEABOARD AIR LINE R. CO. V. HORTON, 233 U.S. 492. 

FN20  TIPTON V. ATCHISON, T.&S.F.R. CO., 298 U.S. 141; ILLINOIS
CENTRAL R. CO. V. BEHRENS, 233 U.S. 473. 

FN21  53 STAT. 1404.  FOR THIS COURT'S INTERPRETATION OF THESE
AMENDMENTS, SEE TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54
(ASSUMPTION OF RISK); SOUTHERN PACIFIC CO. V. GILEO, 351 U.S. 493
(COVERAGE); REED V. PENNSYLVANIA R. CO., 351 U.S. 502 (COVERAGE). 

FN22  JACOB V. NEW YORK CITY, 315 U.S. 752. 

FN23  WE ADOPT THE REASONING IN THIS REGARD OF PART I OF MR. JUSTICE
HARLAN'S OPINION CONCURRING IN NO. 46 AND DISSENTING IN THIS CASE AND
IN NOS. 42 AND 59.  POST, P. 559. 

FN24  SEE APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS IN WILKERSON V.
MCCARTHY, 336 U.S. 53, 71; NOTE, 69 HARV. L. REV. 1441. 

FN25  RULE 19 AUTHORIZES THIS COURT TO REVIEW BY CERTIORARI THE
JUDGMENT OF A LOWER FEDERAL OR STATE COURT "WHERE THERE ARE SPECIAL AND
IMPORTANT REASONS THEREFOR," SUCH AS DECIDING A FEDERAL QUESTION OF
SUBSTANCE IN A WAY PROBABLY NOT IN ACCORD WITH, OR IN CONFLICT WITH,
APPLICABLE DECISIONS OF THIS COURT. 

FN26  THIS COURT FOUND THAT A JURY QUESTION WAS PRESENTED, AND
REVERSED IN THE FOLLOWING CASES: SCHULS V. PENNSYLVANIA R. CO., 350
U.S. 523; STONE V. NEW YORK, C. & ST. L.R. CO., 344 U.S. 407; CARTER V.
ATLANTA & ST. A.B.R. CO., 338 U.S. 430; WILKERSON V. MCCARTHY, 336 U.S.
53; ANDERSON V. ATCHISON, T.&S.F.R. CO., 333 U.S. 821; LILLIE V.
THOMPSON, 332 U.S. 459; MYERS V. READING CO., 331 U.S. 477; ELLIS V.
UNION PAC. R. CO., 329 U.S. 649; JESIONOWSKI V. BOSTON & M.R. CO., 329
U.S. 452; LAVENDER V. KURN, 327 U.S. 645; KEETON V. THOMPSON, 326 U.S.
689; BLAIR V. BALTIMORE & O.R. CO., 323 U.S. 600; TILLER V. ATLANTIC
COAST LINE R. CO., 323 U.S. 574; TENNANT V. PEORIA & P.U.R. CO., 321
U.S. 29; BAILEY V. CENTRAL VT. R. CO., 319 U.S. 350; TILLER V. ATLANTIC
COAST LINE R. CO., 318 U.S. 54; SEAGO V. NEW YORK CENT. R. CO., 315
U.S. 781; JENKINS V. KURN, 313 U.S. 256. 

THE COURT FOUND THAT NO QUESTION FOR THE JURY WAS PRESENTED, AND
AFFIRMED IN THE FOLLOWING CASES: MOORE V. CHESAPEAKE & O.R. CO., 340
U.S. 573; ECKENRODE V. PENNSYLVANIA R. CO., 335 U.S. 329; BRADY V.
SOUTHERN R. CO., 320 U.S. 476. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE REED WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF
MISSOURI. 

(FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P.
524.) 

(FOR OPINION OF MR. JUSTICE HARLAN, DISSENTING IN THIS CASE, SEE
POST, P. 559.) 
..END :



WEBB V. ILLINOIS CENTRAL RAILROAD CO. 352 U.S. 512 


NO. 42.  ARGUED DECEMBER 3, 1956 - DECIDED FEBRUARY 25, 1957 - 228 F.2D
257, REVERSED. 


IN AN ACTION IN A FEDERAL DISTRICT COURT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, BROUGHT AGAINST RESPONDENT RAILROAD BY PETITIONER, WHO
WAS INJURED IN A FALL WHILE WORKING AS A BRAKEMAN WHEN HE SLIPPED ON A
CLINKER IN A CINDER ROADBED, THE JURY AWARDED DAMAGES TO PETITIONER. 
THE COURT OF APPEALS REVERSED ON THE GROUND THAT PETITIONER'S EVIDENCE
WAS INSUFFICIENT TO ALLOW A JURY DETERMINATION OF RESPONDENT'S ALLEGED
NEGLIGENCE, AND THAT RESPONDENT'S MOTION FOR A DIRECTED VERDICT SHOULD
HAVE BEEN GRANTED.  THIS COURT GRANTED CERTIORARI.  HELD:  THE EVIDENCE
WAS SUFFICIENT TO GO TO THE JURY ON THE ISSUE OF RESPONDENT'S
NEGLIGENCE AND TO SUPPORT A JURY FINDING OF THE NEGLIGENCE ALLEGED; AND
THE JUDGMENT IS REVERSED.  PP. 512-517. 

(A) THE TEST OF A JURY CASE UNDER THE ACT IS WHETHER THE PROOFS
JUSTIFY WITH REASON THE CONCLUSION THAT EMPLOYER NEGLIGENCE PLAYED ANY
PART, EVEN THE SLIGHTEST, IN PRODUCING THE EMPLOYEE'S INJURY.  ROGERS
V. MISSOURI PACIFIC R. CO., ANTE, P. 500.  PP. 515-516. 

WEBB V. ILLINOIS CENTRAL RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, (FN1)
IN WHICH CERTIORARI WAS GRANTED TO CONSIDER WHETHER THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT ERRED IN REVERSING A JUDGMENT FOR
DAMAGES AWARDED TO THE PETITIONER IN THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS.  (FN2)  THE GROUND FOR THE REVERSAL WAS
THAT THE EVIDENCE WAS INSUFFICIENT TO ALLOW A JURY DETERMINATION OF THE
RESPONDENT'S ALLEGED NEGLIGENCE, SO THAT RESPONDENT'S MOTION FOR A
DIRECTED VERDICT SHOULD HAVE BEEN GRANTED.  (FN3) 

THE PETITIONER, WORKING AS A BRAKEMAN ON JULY 12, 1952, INJURED HIS
KNEECAP IN A FALL ON A CINDER ROADBED AT A POINT SOME 15 FEET FROM A
HOUSE TRACK SWITCH AT MOUNT OLIVE, ILLINOIS.  HE WAS ALONGSIDE A TRACK
CONNECTING TO THE SWITCH AND SLIPPED ON AN UNNOTICED AND PARTIALLY
COVERED CINDER "ABOUT THE SIZE OF (HIS) FIST" EMBEDDED IN THE LEVEL BUT
SOFT ROADBED. 

IT IS CONCEDED THAT THE CLINKER IN THE ROADBED CREATED A HAZARDOUS
CONDITION GIVING RISE TO RESPONDENT'S LIABILITY UNDER THE ACT IF THE
PROOFS RAISED A JURY QUESTION OF RESPONDENT'S ALLEGED NEGLIGENCE IN
CAUSING OR PERMITTING THE CLINKER TO BE THERE.  THE COURT OF APPEALS
VIEWED THE EVIDENCE AS INSUFFICIENT TO RAISE A JURY QUESTION BECAUSE
THE PETITIONER DID NOT ADDUCE PROOFS SHOWING WHAT STANDARD PROCEDURES
WERE ALLOWED TO PREVENT LARGE CLINKERS FROM BEING USED IN ROAD BALLAST
AND IN INSPECTING ROADBEDS FOR HAZARDS TO FIRM FOOTING.  WE DO NOT
THINK THAT THE PETITIONER'S EVIDENCE WAS LACKING IN SUCH PROOFS EVEN IF
WE ASSUME, AND WE QUESTION, THAT HE HAD THAT BURDEN.  ON THE CONTRARY,
WE THINK THERE WERE PROBATIVE FACTS IN THE EVIDENCE TO JUSTIFY WITH
REASON A JURY FINDING OF THE NEGLIGENCE ALLEGED. 

"IN PASSING UPON WHETHER THERE IS SUFFICIENT EVIDENCE TO SUBMIT AN
ISSUE TO THE JURY WE NEED LOOK ONLY TO THE EVIDENCE AND REASONABLE
INFERENCES WHICH TEND TO SUPPORT THE CASE OF A LITIGANT AGAINST WHOM A
PEREMPTORY INSTRUCTION HAS BEEN GIVEN."  (FN4)  WE THINK THE JURY COULD
HAVE FOUND FROM THE PROOFS THAT, 3 WEEKS BEFORE THE MISHAP, RESPONDENT
ELEVATED THE HOUSE SWITCH AND THE CONNECTING TRACKS SOME 5 INCHES,
USING 15 CUBIC YARDS OF CINDER AND CHAT BALLAST.  PETITIONER TESTIFIED
WITHOUT OBJECTION, BASED ON HIS KNOWLEDGE AND EXPERIENCE GLEANED FROM
27 YEARS OF RAILROADING, THAT THE RAILROAD'S CUSTOM AND PRACTICE WAS TO
TAKE PRECAUTIONS TO PREVENT THE PRESENCE OF LARGE CLINKERS IN A
RAILROAD BED, BOTH BECAUSE "IT DOESN'T GIVE GOOD FOOTING; AND IT CANNOT
BE TAMPED IN UNDER THE TIES FOR SUPPORT."  MOREOVER, THE RESPONDENT'S
EVIDENCE SUPPLIED ADDITIONAL FACTS.  THE SECTION FOREMAN IN CHARGE OF
THE REPAIR WORK TESTIFIED THAT HE DID NOT SCREEN THE BALLAST FOR LARGE
CLINKERS BUT MERELY VISUALLY INSPECTED THE BALLAST AS IT WAS SHOVELED
BY FOUR LABORERS ONTO "THE PUSHCART" BEFORE BEING TAKEN TO THE SITE. 
HIS TESTIMONY WAS THAT THE LARGEST CINDER HE SAW WOULD BE "SAY TWO
INCHES IN DIAMETER  ...  .  OF COURSE, I HAVE NO WAY OF KNOWING
EXACTLY, BUT ABOUT."  IN THIS POSTURE OF THE PROOFS, THERE IS AMPLE
EVIDENCE FOR A JURY TO DETERMINE WHETHER THE PROCEDURE FOLLOWED
SATISFIED THE STANDARD TO BE EXPECTED FROM A PRUDENT MAN IN LIGHT OF
THE HAZARD TO BE PREVENTED. 

WE ALSO THINK THAT A JURY QUESTION WAS PRESENTED BY THE EVIDENCE
BEARING ON THE ADEQUACY OF RESPONDENT'S ROADBED INSPECTION PRACTICES
USED TO DISCOVER HAZARDS TO FIRM FOOTING.  AS THE JURY MIGHT FIND THAT
THE CLINKER WAS IN THE BALLAST USED IN THE REPAIR WORK, SO ALSO THE
JURY MIGHT FIND, FROM THE FACT THAT IT WAS IN THE ROADBED FOR THREE
WEEKS, THAT INSPECTION WAS NOT PROPERLY MADE.  THERE WAS EVIDENCE FROM
WHICH IT COULD HAVE BEEN FOUND THAT THE CLINKER WAS NOT DISCOVERED
EITHER BY THE FOREMAN IN SEMIWEEKLY INSPECTIONS OF THE LOCATION, MADE
IN PART TO DISCOVER AND REMOVE HAZARDS TO WORKMEN, OR BY A TRACK
INSPECTOR AND A TRACK SUPERVISOR MAKING LESS FREQUENT INSPECTIONS.  IT
WAS FOR THE JURY TO WEIGH THE EVIDENCE AND TO DECIDE WHETHER OR NOT THE
INSPECTIONS SATISFIED RESPONDENT'S DUTY TO PROVIDE THE PETITIONER WITH
A SAFE PLACE TO WORK. 

THE COURT OF APPEALS SAID:  "THAT DEFENDANT PLACED THE CLINKER IN ITS
ROADBED AS A PART OF THE BALLAST USED IN THE REPAIR OPERATION IS MERELY
ONE OF SEVERAL POSSIBILITIES PRESENT.  A FINDING THAT IT DID SO CAN
REST ON NOTHING BUT SPECULATION."  (FN5)  IN THIS CONNECTION THE COURT
OF APPEALS MENTIONED TWO OTHER POSSIBLE SOURCES OF THE CLINKER.  ONE
WAS THE L.&N. RAILROAD, WHOSE MAIN LINE AND HOUSE TRACKS IMMEDIATELY
ADJOINED AND WERE CONNECTED TO THE RESPONDENT'S HOUSE SWITCH BY A CROSS
OVER TRACK.  ANOTHER WAS THAT SOME STRANGER MAY HAVE BROUGHT THE
CLINKER ONTO RESPONDENT'S UNFENCED RIGHT-OF-WAY.  THAT THERE WERE OTHER
POSSIBLE SOURCES OF THE CLINKER WOULD NOT, OF COURSE, JUSTIFY A
DIRECTED VERDICT IN LIGHT OF OUR CONCLUSION THAT THE EVIDENCE SUPPORTS
WITH REASON A JURY FINDING THAT THE RESPONDENT NEGLIGENTLY CAUSED THE
CLINKER TO BE IN THE BALLAST USED IN THE REPAIR WORK AND FAILED TO USE
PROPER CARE TO DISCOVER AND REMOVE IT.  (FN6)  INDEED, WE DO NOT THINK
THAT THE EVIDENCE WOULD REASONABLY SUPPORT A FINDING THAT THE CLINKER
CAME FROM ANOTHER SOURCE. 

ALTHOUGH WE DO NOT THINK THAT THE CASE PRESENTS AN ISSUE OF
CAUSATION, IF THE QUOTED LANGUAGE OF THE COURT OF APPEALS IS READ AS
HOLDING THAT A JURY FINDING COULD NOT REASONABLY BE MADE THAT
RESPONDENT'S NEGLIGENCE "IN WHOLE OR IN PART" CAUSED THE PETITIONER'S
INJURY, THEN WHAT WE SAID IN ROGERS V. MISSOURI PACIFIC R. CO., ANTE,
P. 500, AT 505-507, ALSO DECIDED TODAY, IS PERTINENT: 

"  ...  BUT THAT WOULD MEAN THAT THERE IS NO JURY QUESTION IN ACTIONS
UNDER THIS STATUTE, ALTHOUGH THE EMPLOYEE'S PROOFS SUPPORT WITH REASON
A VERDICT IN HIS FAVOR, UNLESS THE JUDGE CAN SAY THAT THE JURY MAY
EXCLUDE THE IDEA THAT HIS INJURY WAS DUE TO CAUSES WITH WHICH THE
DEFENDANT WAS NOT CONNECTED, OR, STATED ANOTHER WAY, UNLESS HIS PROOFS
ARE SO STRONG THAT THE JURY, ON GROUNDS OF PROBABILITY, MAY EXCLUDE A
CONCLUSION FAVORABLE TO THE DEFENDANT.  THAT IS NOT THE GOVERNING
PRINCIPLE DEFINING THE PROOF WHICH REQUIRES A SUBMISSION TO THE JURY IN
THESE CASES  ...  . 

"UNDER THIS STATUTE THE TEST OF A JURY CASE IS SIMPLY WHETHER THE
PROOFS JUSTIFY WITH REASON THE CONCLUSION THAT EMPLOYER NEGLIGENCE
PLAYED ANY PART, EVEN THE SLIGHTEST, IN PRODUCING THE INJURY OR DEATH
FOR WHICH DAMAGES ARE SOUGHT.  IT DOES NOT MATTER THAT, FROM THE
EVIDENCE, THE JURY MAY ALSO WITH REASON, ON GROUNDS OF PROBABILITY,
ATTRIBUTE THE RESULT TO OTHER CAUSES, INCLUDING THE EMPLOYEE'S
CONTRIBUTORY NEGLIGENCE.  JUDICIAL APPRAISAL OF THE PROOFS TO DETERMINE
WHETHER A JURY QUESTION IS PRESENTED IS NARROWLY LIMITED TO THE SINGLE
INQUIRY WHETHER, WITH REASON, THE CONCLUSION MAY BE DRAWN THAT
NEGLIGENCE OF THE EMPLOYER PLAYED ANY PART AT ALL IN THE INJURY OR
DEATH.  JUDGES ARE TO FIX THEIR SIGHTS PRIMARILY TO MAKE THAT APPRAISAL
AND, IF THAT TEST IS MET, ARE BOUND TO FIND THAT A CASE FOR THE JURY IS
MADE OUT WHETHER OR NOT THE EVIDENCE ALLOWS THE JURY A CHOICE OF OTHER
PROBABILITIES." 

WE HAVE CONSIDERED THE REMAINING QUESTIONS, NOT PASSED UPON BY THE
COURT OF APPEALS, AND FIND THEM TO BE UNSUBSTANTIAL.  ACCORDINGLY, WE
REMAND THE CASE FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

THE JUDGMENT IS REVERSED. 

FN1  35 STAT. 65, AS AMENDED, 36 STAT. 291, 53 STAT. 1404, 45 U.S.C.
SEC. 51 ET SEQ. 

FN2 351 U.S. 905. 

FN3  228 F.2D 257. 

FN4  WILKERSON V. MCCARTHY, 336 U.S. 53, 57. 

FN5  228 F.2D, AT 259. 

FN6  SOME SPECULATION MAY HAVE ENTERED INTO THE JURY'S DECISION. 
HOWEVER, THIS COURT HAS STATED: "IT IS NO ANSWER TO SAY THAT THE JURY'S
VERDICT INVOLVED SPECULATION AND CONJECTURE.  WHENEVER FACTS ARE IN
DISPUTE OR THE EVIDENCE IS SUCH THAT FAIR-MINDED MEN MAY DRAW DIFFERENT
INFERENCES, A MEASURE OF SPECULATION AND CONJECTURE IS REQUIRED ON THE
PART OF THOSE WHOSE DUTY IT IS TO SETTLE THE DISPUTE BY CHOOSING WHAT
SEEMS TO THEM TO BE THE MOST REASONABLE INFERENCE."  LAVENDER V. KURN,
327 U.S. 645, 653. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE REED WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

(FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P.
524.) 

(FOR OPINION OF MR. JUSTICE HARLAN, DISSENTING IN THIS CASE, SEE
POST, P. 559.) 
..END :




HERDMAN V. PENNSYLVANIA RAILROAD CO. 352 U.S. 518 


NO. 46.  ARGUED DECEMBER 4, 1956 - DECIDED FEBRUARY 25, 1957 - 228 F.2D
902, AFFIRMED. 


IN AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, BROUGHT
AGAINST RESPONDENT RAILROAD BY PETITIONER, WHO WAS INJURED WHEN A
FREIGHT TRAIN ON WHICH HE WAS A CONDUCTOR MADE AN EMERGENCY STOP TO
AVOID STRIKING AN AUTOMOBILE, THE FEDERAL DISTRICT COURT ENTERED
JUDGMENT ON A DIRECTED VERDICT IN FAVOR OF RESPONDENT.  THE COURT OF
APPEALS AFFIRMED ON THE GROUND THAT THERE WAS A COMPLETE ABSENCE OF
PROBATIVE FACTS TO SUPPORT THE CONCLUSION OF NEGLIGENCE.  THIS COURT
GRANTED CERTIORARI.  HELD:  A JURY QUESTION OF NEGLIGENCE (UNDER THE
DOCTRINE OF RES IPSA LOQUITUR) WAS NOT PRESENTED BY THE PROOFS IN THIS
CASE, AND THE JUDGMENT IS AFFIRMED.  PP. 518-520. 

HERDMAN V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

IN THIS FEDERAL EMPLOYERS' LIABILITY ACT (FN1) CASE, THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT AFFIRMED THE JUDGMENT OF THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF OHIO, WHICH WAS ENTERED ON A
DIRECTED VERDICT IN FAVOR OF THE RESPONDENT.  THE COURT OF APPEALS
AGREED WITH THE DISTRICT COURT THAT THERE WAS A COMPLETE ABSENCE OF
PROBATIVE FACTS TO SUPPORT THE CONCLUSION OF NEGLIGENCE.  (FN2)  THIS
COURT GRANTED CERTIORARI TO DETERMINE WHETHER THE PETITIONER WAS
ERRONEOUSLY DEPRIVED OF A JURY DETERMINATION OF HIS CASE.  (FN3) 

THE PETITIONER WAS THE CONDUCTOR IN CHARGE OF A 67-CAR FREIGHT TRAIN
WHICH ON FEBRUARY 1, 1951, WAS EN ROUTE FROM RICHMOND, INDIANA, TO
COLUMBUS, OHIO.  HE WAS IN THE CABOOSE AT THE END OF THE TRAIN WHEN IT
CAME TO A SUDDEN STOP ABOUT THREE MILES BEFORE A SCHEDULED STOP IN
DAYTON, OHIO.  HE BROUGHT THIS ACTION FOR DAMAGES FOR INJURIES
ALLEGEDLY SUFFERED FROM A FALL IN THE CABOOSE WHICH OCCURRED WHEN THE
TRAIN STOPPED.  HE TESTIFIED:  "WELL, WE WERE COMING THROUGH THERE AT A
SLOW LIKE SPEED AND I DON'T KNOW WHAT WENT WRONG, THE TRAIN WENT IN
EMERGENCY AND THREW ME INTO THIS TABLE AND TORE IT UP AND I WAS UP ON
THE FLOOR WITH MY FLAGMAN ON TOP OF ME, WHEN WE FINALLY GOT
STRAIGHTENED UP."  HE IMMEDIATELY LEFT THE CABOOSE AND SATISFIED
HIMSELF THAT THE STOP WAS NOT CAUSED BY A MECHANICAL FAILURE OF THE
BRAKING EQUIPMENT, BUT RATHER THAT THE ENGINEER HAD APPLIED THE BRAKES
TO BRING THE TRAIN TO A STOP.  AT THE END OF THE RUN, HE FILED HIS
ROUTINE CONDUCTOR'S REPORT OF THE INCIDENT.  HE READ THAT REPORT INTO
THE RECORD, WITHOUT OBJECTION, DURING HIS CROSS-EXAMINATION.  THE
REPORT STATES:  "CN 28, ENGINE 8800 AND 5680 MOVING EAST THROUGH
DAYTON, WITH 67 CARS, AT ESTIMATED SPEED OF EIGHT OR TEN MILES PER
HOUR.  AUTOMOBILE DROVE OVER CROSSING JUST EAST OF DAYTON RUBBER
WORKS.  TO PREVENT STRIKING AUTOMOBILE ENGINEMAN APPLIED AIR IN
EMERGENCY CAUSING ROUGH STOP.   I WAS STANDING IN CABIN OBSERVING AIR
GAUGE AND WHEN STOP WAS MADE KNOCKED ME TO FLOOR OF CABIN BRUISING MY
HIP."  HE ALSO STATED THAT THE ENGINEER HAD TOLD HIM THAT THERE WERE
SCHOOL CHILDREN IN THE AUTOMOBILE.  THERE WAS NO EVIDENCE THAT THE STOP
WAS MADE WITH ANY SPECIAL OR UNUSUAL SEVERITY. 

THE SOLE ISSUE RAISED IS WHETHER A JURY QUESTION WAS PRESENTED BY THE
EVIDENCE UNDER THE DOCTRINE OF RES IPSA LOQUITUR.  WE AGREE WITH THE
LOWER COURTS THAT A JURY QUESTION OF NEGLIGENCE WAS NOT PRESENTED BY
THE PROOFS.  THE PROOFS DO NOT MEET THE TESTS LAID DOWN BY THIS COURT
IN JESIONOWSKI V. BOSTON & M.R. CO., 329 U.S. 452.  THE EMPLOYEE'S
INJURIES IN THE JESIONOWSKI CASE RESULTED FROM A DERAILMENT.  THIS
COURT HELD THAT DERAILMENTS ARE "EXTRAORDINARY, NOT USUAL, HAPPENINGS,"
SO THAT WHEN THEY OCCUR "A JURY MAY FAIRLY FIND THAT THEY OCCURRED AS A
RESULT OF NEGLIGENCE."  (FN4) 

IN THIS CASE, THERE IS NO EVIDENCE TO SHOW THAT UNSCHEDULES AND
SUDDEN STOPS OF TRAINS ARE UNUSUAL OR EXTRAORDINARY OCCURRENCES.  IN
FACT, THE ONLY EVIDENCE WAS PETITIONER'S TESTIMONY THAT THEY ARE NOT
UNUSUAL OR EXTRAORDINARY.  HE TESTIFIED:  "WE GOT TO EXPECT THEM OR
THINK ABOUT THEM."  THE FACTS OF THIS OCCURRENCE THUS DO NOT WARRANT
THE INFERENCE THAT THE RESPONDENT WAS NEGLIGENT. 

THE JUDGMENT IS AFFIRMED. 

FN1  35 STAT. 65, AS AMENDED, 36 STAT. 291, 53 STAT. 1404, 45 U.S.C.
SEC. 51 ET SEQ. 

FN2  228 F.2D 902. 

FN3  351 U.S. 906. 

FN4  JESIONOWSKI V. BOSTON & M.R. CO., 329 U.S. 452, 458. 

(FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P.
524.) 

(FOR OPINION OF MR. JUSTICE HARLAN, CONCURRING IN THIS CASE, SEE
POST, P. 559.) 
..END :




FERGUSON V. MOORE-MCCORMACK LINES, INC. 352 U.S. 521 


NO. 59.  ARGUED DECEMBER 10, 1956 - DECIDED FEBRUARY 25, 1957 - 228 F.2D
891, REVERSED. 


PETITIONER, AN EMPLOYEE ON A PASSENGER SHIP OF RESPONDENT, WAS INJURED
IN THE COURSE OF HIS EMPLOYMENT WHILE USING A SHARP BUTCHER KNIFE TO
REMOVE ICE CREAM FROM A CONTAINER IN WHICH IT WAS FROZEN HARD.  IN AN
ACTION UNDER THE JONES ACT, UNDER WHICH THE STANDARD OF LIABILITY IS
THAT OF THE FEDERAL EMPLOYERS' LIABILITY ACT, THE FEDERAL DISTRICT
COURT ENTERED JUDGMENT ON A JURY VERDICT AWARDING DAMAGES TO
PETITIONER.  THE COURT OF APPEALS REVERSED, HOLDING THAT A MOTION FOR A
DIRECTED VERDICT FOR RESPONDENT SHOULD HAVE BEEN GRANTED.  THIS COURT
GRANTED CERTIORARI.  HELD:  THERE WAS SUFFICIENT EVIDENCE TO TAKE TO
THE JURY THE QUESTION WHETHER RESPONDENT WAS NEGLIGENT IN FAILING TO
FURNISH PETITIONER AN ADEQUATE TOOL WITH WHICH TO PERFORM HIS TASK, AND
THE JUDGMENT IS REVERSED.  PP. 521-524. 

FERGUSON V. MOORE-MCCORMACK LINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE CLARK AND MR. JUSTICE
BRENNAN JOIN. 

PETITIONER WAS INJURED IN 1950 WHILE SERVING AS A SECOND BAKER ON
RESPONDENT'S PASSENGER SHIP BRAZIL.  AMONG HIS DUTIES, HE WAS REQUIRED
TO FILL ORDERS OF THE SHIP'S WAITERS FOR ICE CREAM.  ON THE DAY OF THE
ACCIDENT, HE HAD RECEIVED AN ORDER FROM A SHIP'S WAITER FOR 12 PORTIONS
OF ICE CREAM.   WHEN HE GOT HALF WAY DOWN IN THE TWO-AND-ONE-HALF
GALLON ICE-CREAM CONTAINER FROM WHICH HE WAS FILLING THESE ORDERS, THE
ICE CREAM WAS SO HARD THAT IT COULD NOT BE REMOVED WITH THE
HEMISPHERICAL SCOOP WITH WHICH HE HAD BEEN FURNISHED.  PETITIONER
UNDERTOOK TO REMOVE THE ICE CREAM WITH A SHARP BUTCHER KNIFE KEPT
NEARBY, GRASPING THE HANDLE AND CHIPPING AT THE HARD ICE CREAM.  THE
KNIFE STRUCK A SPOT IN THE ICE CREAM WHICH WAS SO HARD THAT HIS HAND
SLIPPED DOWN ONTO THE BLADE OF THE KNIFE, RESULTING IN THE LOSS OF TWO
FINGERS OF HIS RIGHT HAND. 

PETITIONER BROUGHT THIS SUIT UNDER THE JONES ACT, 41 STAT. 1007, 46
U.S.C. SEC. 688, TO RECOVER FOR HIS INJURIES, WHICH WERE ALLEGED TO BE
THE RESULT OF RESPONDENT'S NEGLIGENCE.  AT THE CLOSE OF PETITIONER'S
CASE, RESPONDENT'S MOTION FOR A DIRECTED VERDICT WAS DENIED. 
RESPONDENT OFFERED NO EVIDENCE.  AFTER THE JURY RETURNED A VERDICT OF
$17,500 FOR THE PETITIONER, RESPONDENT MOVED TO SET ASIDE THE VERDICT. 
THIS MOTION WAS ALSO DENIED AND JUDGMENT ENTERED FOR THE PETITIONER IN
ACCORDANCE WITH THE JURY VERDICT.  THE COURT OF APPEALS REVERSED,
HOLDING THAT IT WAS "NOT WITHIN THE REALM OF REASONABLE FORESEEABILITY"
THAT PETITIONER WOULD USE THE KNIFE TO CHIP THE FROZEN ICE CREAM.  228
F.2D 891, 892.  WE GRANTED CERTIORARI.  351 U.S. 936. 

WE CONCLUDE THAT THERE WAS SUFFICIENT EVIDENCE TO TAKE TO THE JURY
THE QUESTION WHETHER RESPONDENT WAS NEGLIGENT IN FAILING TO FURNISH
PETITIONER WITH AN ADEQUATE TOOL WITH WHICH TO PERFORM HIS TASK. 

PETITIONER TESTIFIED THAT THE HARD ICE CREAM COULD HAVE BEEN LOOSENED
SAFELY WITH AN ICE CHIPPER.  HE HAD USED SUCH AN INSTRUMENT FOR THAT
PURPOSE ON OTHER SHIPS.  HE WAS NOT, HOWEVER, FURNISHED SUCH AN
INSTRUMENT.  THERE WAS EVIDENCE THAT THE SCOOP WITH WHICH HE HAD BEEN
FURNISHED WAS TOTALLY INADEQUATE TO REMOVE ICE CREAM OF THE CONSISTENCY
OF THAT WHICH HE HAD TO SERVE.  AND, THERE WAS EVIDENCE THAT ITS
EXTREMELY HARD CONSISTENCY WAS PRODUCED BY THE FAILURE OF ANOTHER
MEMBER OF THE CREW TO TRANSFER IT FROM THE DEEP FREEZE TO A TEMPERING
CHEST IN SUFFICIENT TIME TO ALLOW ALL OF IT TO BECOME DISPOSABLE BY
MEANS OF THE SCOOP WHEN THE TIME CAME FOR IT TO BE SERVED.  THERE WAS
NO SHOWING THAT ANY DEVICE WAS CLOSE AT HAND WHICH WOULD HAVE SAFELY
PERFORMED THE TASK.  FINALLY, THERE WAS EVIDENCE THAT PETITIONER HAD
BEEN INSTRUCTED TO GIVE THE WAITERS PROMPT SERVICE. 

RESPONDENT URGES THAT IT WAS NOT REASONABLY FORESEEABLE THAT
PETITIONER WOULD UTILIZE THE KNIFE TO LOOSEN THE ICE CREAM.  BUT THE
JURY, WHICH PLAYS A PRE-EMINENT ROLE IN THESE JONES ACT CASES (JACOB V.
NEW YORK CITY, 315 U.S. 752; SCHULZ V. PENNSYLVANIA R. CO., 350 U.S.
523), COULD CONCLUDE THAT PETITIONER HAD BEEN FURNISHED NO SAFE TOOL TO
PERFORM HIS TASK.  IT WAS NOT NECESSARY THAT RESPONDENT BE IN A
POSITION TO FORESEE THE EXACT CHAIN OF CIRCUMSTANCES WHICH ACTUALLY LED
TO THE ACCIDENT.  THE JURY WAS INSTRUCTED THAT IT MIGHT CONSIDER
WHETHER RESPONDENT COULD HAVE ANTICIPATED THAT A KNIFE WOULD BE USED TO
GET OUT THE ICE CREAM.  ON THIS RECORD, FAIR-MINDED MEN COULD CONCLUDE
THAT RESPONDENT SHOULD HAVE FORESEEN THAT PETITIONER MIGHT BE TEMPTED
TO USE A KNIFE TO PERFORM HIS TASK WITH DISPATCH, SINCE NO ADEQUATE
IMPLEMENT WAS FURNISHED HIM.  SEE SCHULZ V. PENNSYLVANIA R. CO., 350
U.S. 523, 526.  SINCE THE STANDARD OF LIABILITY UNDER THE JONES ACT IS
THAT ESTABLISHED BY CONGRESS UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, WHAT WE SAID IN ROGERS V. MISSOURI PACIFIC R. CO., ANTE, P. 500,
DECIDED THIS DAY, IS RELEVANT HERE: 

"UNDER THIS STATUTE THE TEST OF A JURY CASE IS SIMPLY WHETHER THE
PROOFS JUSTIFY WITH REASON THE CONCLUSION THAT EMPLOYER NEGLIGENCE
PLAYED ANY PART, EVEN THE SLIGHTEST, IN PRODUCING THE INJURY OR DEATH
FOR WHICH DAMAGES ARE SOUGHT." 

BECAUSE THE JURY COULD HAVE SO CONCLUDED, THE COURT OF APPEALS ERRED
IN HOLDING THAT RESPONDENT'S MOTION FOR A DIRECTED VERDICT SHOULD HAVE
BEEN GRANTED.  "COURTS SHOULD NOT ASSUME THAT IN DETERMINING THESE
QUESTIONS OF NEGLIGENCE JURIES WILL FALL SHORT OF A FAIR PERFORMANCE OF
THEIR CONSTITUTIONAL FUNCTION."  WILKERSON V. MCCARTHY, 336 U.S. 53,
62.  REVERSED. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE REED WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING.* 

*NOTE:  THIS DISSENTING OPINION APPLIES ALSO TO NO. 28, ROGERS V.
MISSOURI PACIFIC R. CO., ANTE, P. 500; NO. 42, WEBB V. ILLINOIS CENTRAL
R. CO., ANTE, P. 512; AND NO. 46, HERDMAN V. PENNSYLVANIA R. CO., ANTE,
P. 518. 

"THE FEDERAL EMPLOYERS LIABILITY ACT GIVES TO RAILROAD EMPLOYEES A
SOMEWHAT LIBERALIZED RIGHT OF RECOVERY FOR INJURIES ON THE JOB.  A
GREAT NUMBER OF CASES UNDER THE ACT HAVE BEEN BROUGHT TO THE SUPREME
COURT, MANY OF THEM CASES IN WHICH THE COURT OF APPEALS HAD SET ASIDE,
ON THE EVIDENCE, VERDICTS FOR THE EMPLOYEES.  DESPITE THE HUMAN APPEAL
OF THESE CASES, BRANDEIS NEVER ALLOWED HIMSELF TO REGARD THEM AS THE
PROPER BUSINESS OF THE APPELLATE JURISDICTION OF THE SUPREME COURT." 

PAUL A. FREUND, THE LIBERALISM OF JUSTICE BRANDEIS, ADDRESS AT A
MEETING OF THE AMERICAN HISTORICAL ASSOCIATION IN ST. LOUIS, DECEMBER
28, 1956. 

IN SO DISCHARGING HIS JUDICIAL RESPONSIBILITY, MR. JUSTICE BRANDEIS
DID NOT DISCLOSE AN IDIOSYNCRACY IN A GREAT JUDGE.  HIS ATTITUDE
EXPRESSED RESPECT FOR THE STANDARDS FORMULATED BY THE COURT IN CARRYING
OUT THE MANDATE OF CONGRESS REGARDING THIS COURT'S APPELLATE
JURISDICTION IN CASES ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT.  FOR HE BEGAN HIS WORK ON THE COURT (FN1) JUST AFTER CONGRESS HAD
PASSED THE ACT OF SEPTEMBER 6, 1916, 39 STAT. 726, RELIEVING THE COURT
OF ITS OBLIGATORY JURISDICTION OVER FEDERAL EMPLOYERS' LIABILITY ACT
DECISIONS BY THE HIGHEST STATE COURTS AND THE CIRCUIT COURTS OF
APPEALS.  MR. JUSTICE BRANDEIS' GENERAL OUTLOOK ON THE FORMULATION BY
THE SUPREME COURT OF THE PUBLIC LAW APPROPRIATE FOR AN EVOLVING SOCIETY
HAS MORE AND MORE PREVAILED; HIS CONCEPT OF THE ROLE OF THE SUPREME
COURT IN OUR JUDICIAL SYSTEM, AND HIS CONSEQUENT REGARD FOR THE BEARING
ON THE JUDICIAL PRODUCT OF WHAT BUSINESS COMES TO THE COURT AND HOW THE
COURT DEALS WITH IT, HAVE OFTEN BEEN NEGLECTED IN THE NAME OF "DOING
JUSTICE" IN INDIVIDUAL CASES.  TO HIM THESE WERE NOT TECHNICALITIES, IN
THE DEROGATORY SENSE, FOR THE CONDUCT OF JUDICIAL BUSINESS.  HE DEEMED
WISE DECISIONS ON SUBSTANTIVE LAW WITHIN THE INDISPENSABLE AREA OF THE
COURT'S JURISDICTION DEPENDENT ON A LIMITED VOLUME OF BUSINESS AND ON A
TRULY DELIBERATIVE PROCESS. 

ONE FIELD OF CONSPICUOUS DISREGARD OF THESE VITAL CONSIDERATIONS IS
THAT LARGE MASS OF CASES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IN
WHICH THE SOLE ISSUE IS THE SUFFICIENCY OF THE EVIDENCE FOR SUBMISSION
TO THE JURY.  (FN2)  FOR MANY YEARS, I RELUCTANTLY VOTED ON THE MERITS
OF THESE NEGLIGENCE CASES THAT HAD BEEN GRANTED REVIEW.  IN THE LAST
TEN YEARS, AND MORE PARTICULARLY WITHIN THE PAST FEW YEARS, AS THE
COURT HAS BEEN GRANTING MORE AND MORE OF THESE PETITIONS, I HAVE FOUND
IT INCREASINGLY DIFFICULT TO ACQUIESCE IN A PRACTICE THAT I REGARD AS
WHOLLY INCOMPATIBLE WITH THE CERTIORARI POLICY EMBODIED IN THE 1916
ACT, THE JUDICIARY ACT OF 1925, 43 STAT. 936, AND THE RULES FORMULATED
BY THE COURT TO GOVERN CERTIORARI JURISIDICTION FOR ITS OWN REGULATION
AND FOR THE GUIDANCE OF THE BAR.  I HAVE THEREFORE FELT COMPELLED TO
VOTE TO DISMISS PETITIONS FOR CERTIORARI IN SUCH CASES AS IMPROVIDENTLY
GRANTED WITHOUT PASSING ON THE MERITS.  (FN3)  IN THESE CASES I
INDICATED BRIEFLY THE REASONS WHY I BELIEVED THAT THIS COURT SHOULD NOT
BE REVIEWING DECISIONS IN WHICH THE SOLE ISSUE IS THE SUFFICIENCY OF
THE EVIDENCE FOR SUBMISSION TO THE JURY.  IN VIEW OF THE INCREASING
NUMBER OF THESE CASES THAT HAVE BEEN BROUGHT HERE FOR REVIEW - THIS
DISSENT IS TO FOUR DECISIONS OF THE COURT - AND IN VIEW OF THE
ENCOURAGEMENT THEREBY GIVEN TO CONTINUING RESORT TO THIS COURT, I DEEM
IT NECESSARY TO ENLARGE UPON THE CONSIDERATIONS THAT HAVE GUIDED ME IN
THE CONVICTION THAT WRITS IN THIS CLASS OF CASES ARE "IMPROVIDENTLY
GRANTED."  (FN4) 

AT THE OUTSET, HOWEVER, I SHOULD DEAL BRIEFLY WITH A PRELIMINARY
PROBLEM.  IT IS SOMETIMES SAID THAT THE "INTEGRITY OF THE CERTIORARI
PROCESS" AS EXPRESSED IN THE "RULE OF FOUR" (THAT IS, THIS COURT'S
PRACTICE OF GRANTING CERTIORARI ON THE VOTE OF FOUR JUSTICES) REQUIRES
ALL THE JUSTICES TO VOTE ON THE MERITS OF A CASE WHEN FOUR JUSTICES
HAVE VOTED TO GRANT CERTIORARI AND NO NEW FACTOR EMERGES AFTER ARGUMENT
AND DELIBERATION.  THERE ARE TWO REASONS WHY THERE CAN BE NO SUCH
REQUIREMENT.  LAST TERM, FOR EXAMPLE, THE COURT DISPOSED OF 1,361
PETITIONS FOR CERTIORARI.  WITH SUCH A VOLUME OF CERTIORARI BUSINESS,
NOT TO MENTION THE REMAINDER OF THE COURT'S BUSINESS, THE INITIAL
DECISION TO GRANT A PETITION FOR CERTIORARI MUST NECESSARILY BE BASED
ON A LIMITED APPRECIATION OF THE ISSUES IN A CASE, RESTING AS IT SO
LARGELY DOES ON THE PARTISAN CLAIMS IN BRIEFS OF COUNSEL.  SEE FURNESS,
WITHY & CO. V. YANG-TSZE INS. ASSN., 242 U.S. 430, 434; SOUTHERN POWER
CO. V.  NORTH CAROLINA PUBLIC SERVICE CO., 263 U.S. 508, 509.  THE
COURT DOES NOT, INDEED IT CANNOT AND SHOULD NOT TRY TO, GIVE TO THE
INITIAL QUESTION OF GRANTING OR DENYING A PETITION THE KIND OF
ATTENTION THAT IS DEMANDED BY A DECISION ON THE MERITS.  THE ASSUMPTION
THAT WE KNOW NO MORE AFTER HEARING AND DELIBERATING ON A CASE THAN
AFTER READING THE PETITION FOR CERTIORARI AND THE RESPONSE IS
INADMISSIBLE IN THEORY AND NOT TRUE IN FACT.  EVEN AN FELA CASE
SOMETIMES APPEARS IN QUITE A DIFFERENT LIGHT AFTER ARGUMENT THAN IT
APPEARED ON THE ORIGINAL PAPERS.  SURELY THIS MUST BE ACKNOWLEDGED
REGARDING ONE OF TODAY'S CASES, NO. 46, AND SEE MCCARTHY V. BRUNER,
CERTIORARI GRANTED, 322 U.S. 718, CERTIORARI DISMISSED, 323 U.S. 673. 
THE COURSE OF ARGUMENT AND THE BRIEFS ON THE MERITS MAY DISCLOSE THAT A
CASE APPEARING ON THE SURFACE TO WARRANT A WRIT OF CERTIORARI DOES NOT
WARRANT IT, SEE LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, INC., 261
U.S. 387, (FN5) OR MAY REVEAL MORE CLEARLY THAT THE ONLY THING IN
CONTROVERSY IS AN APPRAISAL OF FACTS ON WHICH THIS COURT IS BEING ASKED
TO MAKE A SECOND GUESS, TO SUBSTITUTE ITS ASSESSMENT OF THE TESTIMONY
FOR THAT OF THE COURT BELOW. 

BUT THERE IS A MORE BASIC REASON WHY THE "INTEGRITY OF THE CERTIORARI
PROCESS" DOES NOT REQUIRE ME TO VOTE ON THE MERITS OF THESE CASES.  THE
RIGHT OF A JUSTICE TO DISSENT FROM AN ACTION OF THE COURT IS HISTORIC. 
OF COURSE SELF-RESTRAINT SHOULD GUIDE THE EXPRESSION OF DISSENT.  BUT
DISSENT IS ESSENTIAL TO AN EFFECTIVE JUDICIARY IN A DEMOCRATIC SOCIETY,
AND ESPECIALLY FOR A TRIBUNAL EXERCISING THE POWERS OF THIS COURT.  NOT
FOUR, NOT EIGHT, JUSTICES CAN REQUIRE ANOTHER TO DECIDE A CASE THAT HE
REGARDS AS NOT PROPERLY BEFORE THE COURT.  THE FAILURE OF A JUSTICE TO
PERSUADE HIS COLLEAGUES DOES NOT REQUIRE HIM TO YIELD TO THEIR VIEWS,
IF HE HAS A DEEP CONVICTION THAT THE ISSUE IS SUFFICIENTLY IMPORTANT. 
MOREOVER, THE COURT OPERATES ULTIMATELY BY MAJORITY.  EVEN THOUGH A
MINORITY MAY BRING A CASE HERE FOR ORAL ARGUMENT, THAT DOES NOT MEAN
THAT THE MAJORITY HAS GIVEN UP ITS RIGHT TO VOTE ON THE ULTIMATE
DISPOSITION OF THE CASE AS CONSCIENCE DIRECTS.  THIS IS NOT A NOVEL
DOCTRINE.  AS A MATTER OF PRACTICE, MEMBERS OF THE COURT HAVE AT
VARIOUS TIMES EXERCISED THIS RIGHT OF REFUSING TO PASS ON THE MERITS OF
CASES THAT IN THEIR VIEW SHOULD NOT HAVE BEEN GRANTED REVIEW. 

THIS DOES NOT MAKE THE "RULE OF FOUR" A HOLLOW RULE.  I WOULD NOT
CHANGE THE PRACTICE.  NO JUSTICE IS LIKELY TO VOTE TO DISMISS A WRIT OF
CERTIORARI AS IMPROVIDENTLY GRANTED AFTER ARGUMENT HAS BEEN HEARD, EVEN
THOUGH HE HAS NOT BEEN CONVINCED THAT THE CASE IS WITHIN THE RULES OF
THE COURT GOVERNING THE GRANTING OF CERTIORARI.  IN THE USUAL INSTANCE,
A DOUBTING JUSTICE RESPECTS THE JUDGMENT OF HIS BRETHREN THAT THE CASE
DOES CONCERN ISSUES IMPORTANT ENOUGH FOR THE COURT'S CONSIDERATION AND
ADJUDICATION.  BUT A DIFFERENT SITUATION IS PRESENTED WHEN A CLASS OF
CASES IS SYSTEMATICALLY TAKEN FOR REVIEW.  THEN A JUSTICE WHO BELIEVES
THAT SUCH CASES RAISE INSIGNIFICANT AND UNIMPORTANT QUESTIONS -
INSIGNIFICANT AND UNIMPORTANT FROM THE POINT OF VIEW OF THE COURT'S
DUTIES - AND THAT AN INCREASING AMOUNT OF THE COURT'S TIME IS UNDULY
DRAINED BY ADJUDICATION OF THESE CASES CANNOT FOREGO HIS DUTY TO VOICE
HIS DISSENT TO THE COURT'S ACTION. 

THE "RULE OF FOUR" IS NOT A COMMAND OF CONGRESS.  IT IS A WORKING RULE
DEVISED BY THE COURT AS A PRACTICAL MODE OF DETERMINING THAT A CASE IS
DESERVING OF REVIEW, THE THEORY BEING THAT IF FOUR JUSTICES FIND THAT A
LEGAL QUESTION OF GENERAL IMPORTANCE IS RAISED, THAT IS AMPLE PROOF
THAT THE QUESTION HAS SUCH IMPORTANCE.  THIS IS A FAIR ENOUGH RULE OF
THUMB ON THE ASSUMPTION THAT FOUR JUSTICES FIND SUCH IMPORTANCE ON AN
INDIVIDUALIZED SCREENING OF THE CASES SOUGHT TO BE REVIEWED.  THE
REASON FOR DEFERENCE TO A MINORITY VIEW NO LONGER HOLDS WHEN A CLASS OF
LITIGATION IS GIVEN A SPECIAL AND PRIVILEGED POSITION.    THE HISTORY
OF THE FEDERAL EMPLOYERS' LIABILITY ACT REVEALS THE CONTINUING NATURE
OF THE PROBLEM OF REVIEW BY THIS COURT OF THE VAST LITIGATION UNDER
THAT ACT IN BOTH THE FEDERAL AND STATE COURTS.  THE INITIAL FEDERAL
EMPLOYERS' LIABILITY ACT, 34 STAT. 232, WAS DECLARED UNCONSTITUTIONAL
IN THE FIRST EMPLOYERS' LIABILITY CASES, 207 U.S. 463.  THE SECOND
EMPLOYERS' LIABILITY ACT, 35 STAT. 65, DRAFTED TO MEET THE
CONSTITUTIONAL INFIRMITY FOUND IN THE FIRST ACT, WAS SUSTAINED IN THE
SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1.  UNDER THE GENERAL
STATUTORY SCHEME OF REVIEW OF LITIGATION BY THE SUPREME COURT IN FORCE
AT THAT TIME, ALL CASES ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, WHETHER COMING FROM THE STATE OR FEDERAL COURTS, WERE REVIEWABLE
IN THE SUPREME COURT BY WRIT OF ERROR, THAT IS, AS A MATTER OF RIGHT. 
AFTER THE CONSTITUTIONALITY OF THE ACT HAD BEEN SUSTAINED, CASES BEGAN
TO FLOW TO THE SUPREME COURT AND WITHIN A FEW YEARS THE COURT WAS
THREATENED WITH AN AVALANCHE OF LITIGATION UNDER THE ACT.  IN THE 1915
TERM, THE COURT DELIVERED OPINIONS IN 19 CASES INVOLVING AN ASSESSMENT
OF THE EVIDENCE TO DETERMINE WHETHER SUBMISSION TO THE JURY WAS
WARRANTED.  SEE APPENDICES A AND B, AND STARRED FOOTNOTE TO APPENDIX A,
POST, PP. 548, 549. 

TO RELIEVE THE COURT OF THIS BURDEN OF REVIEWING THE LARGE VOLUME OF
INSIGNIFICANT LITIGATION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT WAS
ONE OF THE PRINCIPAL REASONS FOR PASSAGE OF THE ACT OF SEPTEMBER 6,
1916, 39 STAT. 726.  SEE S. REP. NO. 775, 64TH CONG., 1ST SESS.; H.R.
REP. NO. 794, 64TH CONG., 1ST SESS.  IN THUS FREEING THE COURT FROM
UNRESTRICTED ACCESS TO IT OF CASES THAT HAVE NO BUSINESS HERE, CONGRESS
ASSIMILATED FEDERAL EMPLOYERS' LIABILITY ACT LITIGATION TO THOSE OTHER
CATEGORIES OF CASES - E.G., DIVERSITY, PATENT, ADMIRALTY, CRIMINAL
CASES - THAT CONGRESS HAD IN 1891, 26 STAT. 826, 828, WITHDRAWN FROM
THIS COURT'S OBLIGATORY JURISDICTION.  BELIEVING REVIEW IN THE STATE
APPELLATE SYSTEMS OR IN THE NEWLY CREATED CIRCUIT COURTS OF APPEALS
SUFFICIENT, IT MADE THE LOWER COURTS' DECISIONS FINAL ALSO IN THIS
CLASS OF LITIGATION IN ALL BUT THE UNUSUAL CASES RAISING SIGNIFICANT
LEGAL QUESTIONS.  THEREAFTER SUCH CASES COULD BE REVIEWED BY THE
SUPREME COURT ONLY ON CERTIORARI TO "SECURE UNIFORMITY OF DECISION"
BETWEEN THE CIRCUIT COURTS OF APPEALS AND "TO BRING UP CASES INVOLVING
QUESTIONS OF IMPORTANCE WHICH IT IS IN THE PUBLIC INTEREST TO HAVE
DECIDED BY THIS COURT OF LAST RESORT.  THE JURISDICTION WAS NOT
CONFERRED UPON THIS COURT MERELY TO GIVE THE DEFEATED PARTY IN THE
CIRCUIT COURT OF APPEALS ANOTHER HEARING  ...  .  THESE REMARKS, OF
COURSE, APPLY ALSO TO APPLICATIONS FOR CERTIORARI TO REVIEW JUDGMENTS
AND DECREES OF THE HIGHEST COURTS OF STATES."  MAGNUM CO. V. COTY, 262
U.S. 159, 163-164.  (SEE ALSO HAMILTON-BROWN SHOE CO. V. WOLF BROTHERS
& CO., 240 U.S. 251, 257-258:  CERTIORARI JURISDICTION "IS A
JURISDICTION TO BE EXERCISED SPARINGLY, AND ONLY IN CASES OF PECULIAR
GRAVITY AND GENERAL IMPORTANCE, OR IN ORDER TO SECURE UNIFORMITY OF
DECISION.")  THE STATEMENT FOR THE COURT BY MR. CHIEF JUSTICE TAFT IN
THE COTY CASE INDICATES THE STRICT CRITERIA GOVERNING CERTIORARI POLICY
OBSERVED BY THE COURT, EXCEPT OCCASIONALLY IN FELA CASES, PREVIOUS TO
THE ACT OF 1925, BY WHICH CONGRESS PUT THE COURT'S DOCKET FOR ALL
PRACTICAL PURPOSES IN ITS OWN KEEPING.  (FOR A MORE DETAILED HISTORY OF
THE ORIGIN OF CERTIORARI JURISDICTION, SEE FRANKFURTER AND LANDIS,
BUSINESS OF THE SUPREME COURT, CC. II, III, V, AND VII.) 

THE VAST EXTENSION OF DISCRETIONARY REVIEW BY THE SUPREME COURT ON
WRIT OF CERTIORARI CONTAINED IN THE JUDGES BILL OF 1925, 43 STAT. 936,
LED THE COURT TO PROMULGATE FORMAL RULES, AND NOT RELY ON ADMONITIONS
IN OPINIONS, REGARDING CONDITIONS UNDER WHICH PETITIONS FOR CERTIORARI
WOULD BE GRANTED.   THE PRESENT RULE 19 OF THE REVISED RULES OF THE
SUPREME COURT CONTAINS THE SUBSTANCE OF THE ORIGINAL RULE 35(5) OF THE
REVISED RULES OF 1925, 266 U.S. 645, 681, AND PERHAPS IN VIEW OF THE
ISSUE IN THESE CASES IT IS NOT UNWARRANTED TO SET FORTH THE FULL TEXT
OF THAT RULE: 

"1.  A REVIEW ON WRIT OF CERTIORARI IS NOT A MATTER OF RIGHT, BUT OF
SOUND JUDICIAL DISCRETION, AND WILL BE GRANTED ONLY WHERE THERE ARE
SPECIAL AND IMPORTANT REASONS THEREFOR.  THE FOLLOWING, WHILE NEITHER
CONTROLLING NOR FULLY MEASURING THE COURT'S DISCRETION, INDICATE THE
CHARACTER OF REASONS WHICH WILL BE CONSIDERED: 

"(A)  WHERE A STATE COURT HAS DECIDED A FEDERAL QUESTION OF SUBSTANCE
NOT THERETOFORE DETERMINED BY THIS COURT, OR HAS DECIDED IT IN A WAY
PROBABLY NOT IN ACCORD WITH APPLICABLE DECISIONS OF THIS COURT. 

"(B)  WHERE A COURT OF APPEALS HAS RENDERED A DECISION IN CONFLICT
WITH THE DECISION OF ANOTHER COURT OF APPEALS ON THE SAME MATTER; OR
HAS DECIDED AN IMPORTANT STATE OR TERRITORIAL QUESTION IN A WAY IN
CONFLICT WITH APPLICABLE STATE OR TERRITORIAL LAW; OR HAS DECIDED AN
IMPORTANT QUESTION OF FEDERAL LAW WHICH HAS NOT BEEN, BUT SHOULD BE,
SETTLED BY THIS COURT; OR HAS DECIDED A FEDERAL QUESTION IN A WAY IN
CONFLICT WITH APPLICABLE DECISIONS OF THIS COURT; OR HAS SO FAR
DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS, OR
SO FAR SANCTIONED SUCH A DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN
EXERCISE OF THIS COURT'S POWER OF SUPERVISION. 

"2.  THE SAME GENERAL CONSIDERATIONS OUTLINED ABOVE WILL CONTROL IN
RESPECT OF PETITIONS FOR WRITS OF CERTIORARI TO REVIEW JUDGMENTS OF THE
COURT OF CLAIMS, OF THE COURT OF CUSTOMS AND PATENT APPEALS, OR OF ANY
OTHER COURT WHOSE DETERMINATIONS ARE BY LAW REVIEWABLE ON WRIT OF
CERTIORARI." 

OF COURSE, CASES RAISING QUESTIONS THAT ARE NOT EVIDENTIARY,
QUESTIONS THAT FAIRLY INVOLVE THE CONSTRUCTION OR SCOPE OF THE STATUTE
ARE APPROPRIATE FOR REVIEW HERE.  SEE, E.G., MINNEAPOLIS & ST. L.R. CO.
V. BOMBOLIS, 241 U.S. 211; SOUTHERN PACIFIC CO. V. GILEO, 351 U.S. 493;
REED V. PENNSYLVANIA R. CO., 351 U.S. 502.  BUT THE ORDINARY NEGLIGENCE
CASE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT DOES NOT SATISFY THE
CRITERIA THAT DEFINE THE "SPECIAL AND IMPORTANT REASONS" WHEN A WRIT OF
CERTIORARI WILL BE GRANTED, AND THIS MAY PERHAPS BEST BE APPRECIATED BY
SUMMARIZING THE COURSE OF PROCEEDINGS IN EACH OF THE FOUR CASES NOW
BEFORE US. 

IN NO. 28, THE PETITIONER BROUGHT SUIT FOR DAMAGES, ALLEGING
NEGLIGENCE ON THE PART OF RESPONDENT RAILROAD IN PROVIDING AN UNSAFE
PLACE TO WORK AND AN UNSAFE METHOD FOR DOING HIS WORK.  PETITIONER WAS
ENGAGED IN BURNING WEEDS ON RESPONDENT'S RIGHT OF WAY WITH A HAND
TORCH.  HE HEARD A WHISTLE INDICATING AN APPROACHING TRAIN.  HE RAN
THIRTY TO THIRTY-FIVE YARDS ALONG THE TRACK FROM THE FIRE AND, THINKING
HIMSELF FAR ENOUGH FROM THE FIRE DANGER, STOOD NEAR A DRAINAGE CULVERT
WATCHING THE PASSING TRAIN FOR "HOTBOXES."  THE TRAIN CAUSED THE FIRE
TO COME "RIGHT UP IN HIS FACE."  PETITIONER BACKED AWAY WITH HIS ARM
OVER HIS FACE AND FELL DOWN THE INCLINE OF THE CULVERT.  THERE WAS
CONSIDERABLE TESTIMONY CONCERNING THE CIRCUMSTANCES OF THE ACCIDENT,
THE METHODS OF BURNING WEEDS, THE DUTIES OF RAILROAD WORKERS, THE
CONDITION OF THE RIGHT OF WAY, IN PARTICULAR THE CONDITION OF THE
CULVERT, AND PETITIONER'S KNOWLEDGE OF THOSE CONDITIONS.  RESPONDENT'S
MOTIONS FOR A DIRECTED VERDICT AT THE CLOSE OF PETITIONER'S CASE AND AT
THE CLOSE OF ALL THE EVIDENCE WERE DENIED.  THE CASE WAS SUBMITTED TO
THE JURY, WHICH RETURNED A VERDICT FOR PETITIONER. 

ON APPEAL, THE MISSOURI SUPREME COURT REVERSED.  284 S.W.2D 467. 
CONSIDERING THE EVIDENCE FROM A STANDPOINT MOST FAVORABLE TO THE
PETITIONER, IT HELD THAT THERE WAS INSUFFICIENT EVIDENCE OF NEGLIGENCE
ON THE PART OF RESPONDENT, AND THAT EVEN IF THERE WERE SUFFICIENT
EVIDENCE OF NEGLIGENCE, THERE WAS NO EVIDENCE TO SHOW THAT SUCH
NEGLIGENCE CONTRIBUTED TO PETITIONER'S INJURY. 

IN NO. 42, PETITIONER BROUGHT SUIT FOR INJURIES SUFFERED AS A RESULT
OF RESPONDENT RAILROAD'S ALLEGED FAILURE TO USE ORDINARY CARE IN
FURNISHING HIM WITH A REASONABLY SAFE PLACE TO WORK.  THERE WAS LITTLE
DISPUTE OVER THE CIRCUMSTANCES OF THE ACCIDENT, WHICH ARE SET FORTH IN
THE OPINION OF THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT, 228 F.2D
257, 258: 

"PLAINTIFF HAD BEEN EMPLOYED BY DEFENDANT IN VARIOUS CAPACITIES SINCE
ABOUT 1925 AND WAS, ON JULY 2, 1952, WHEN THE ACCIDENT OCCURRED,
WORKING AS A BRAKEMAN, BEING ASSIGNED TO THE CREW OF A LOCAL FREIGHT
RUN BETWEEN THE CITIES OF EAST ST. LOUIS AND CLINTON, ILLINOIS.  DURING
THE COURSE OF HIS DUTIES, IN A SWITCHING OPERATION AT MOUNT OLIVE, HE
NOTICED THAT A WHEAT CAR IN THE TRAIN WAS LEAKING.  WHILE THE OTHER
CREW MEMBERS CONTINUED WITH THE TASK OF PICKING UP CARS TO BE
INCORPORATED INTO THE TRAIN, HE STARTED BACK TO THE CABOOSE TO GET SOME
WASTE TO PLUG THE HOLE IN THE LEAKING CAR.  HE TURNED AND, ON THE FIRST
STEP HE TOOK, TRIPPED AND FELL WITH HIS LEFT LEG BUCKLED UNDER HIM.  HE
THEREBY SUSTAINED A SERIOUS INJURY TO HIS LEFT KNEECAP.  THE ACCIDENT
OCCURRED ON THE ROADBED OF DEFENDANT'S 'HOUSE TRACK' AT A POINT ABOUT
ONE FOOT FROM THE END OF THE TIES.  AFTER PLAINTIFF FELL, HE LOOKED TO
SEE WHAT HAD CAUSED HIM TO FALL AND SAW A CLINKER 'ABOUT THE SIZE OF MY
FIST' WHICH WAS PARTLY OUT OF THE GROUND, AND A HOLE BESIDE THE CLINKER
...  .  PLAINTIFF STATED THAT HE LOOKED 'AT THE GROUND' BEFORE HE
STEPPED BUT DID NOT SEE THE CLINKER.  HE STATED FURTHER THAT THE
FOOTING ON THE ROADBED LOOKED LEVEL BUT WAS A LITTLE SOFT." 

DEFENDANT'S MOTIONS FOR A DIRECTED VERDICT AT THE CLOSE OF
PETITIONER'S CASE AND AT THE CLOSE OF ALL THE EVIDENCE WERE DENIED, AND
THE JURY RETURNED A VERDICT FOR PETITIONER.  THE COURT OF APPEALS
REVERSED.  IT HELD THAT THE POSSIBILITY THAT "DEFENDANT PLACED THE
CLINKER IN ITS ROADBED AS A PART OF THE BALLAST USED IN THE REPAIR
OPERATION IS MERELY ONE OF SEVERAL POSSIBILITIES PRESENT.  A FINDING
THAT IT DID SO CAN REST ON NOTHING BUT SPECULATION."  THE COURT OF
APPEALS ALSO STATED THAT "THERE IS A TOTAL WANT OF EVIDENCE AS TO WHAT
CONSTITUTES REASONABLE PRUDENCE UNDER THE PROVED CIRCUMSTANCES," AND
THAT THE RECORD "IS EQUALLY LACKING IN EVIDENCE TO PROVE THAT DEFENDANT
HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION."  ID., AT
259, 260. 

IN NO. 46, PETITIONER APPEALED TO THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT FROM A DIRECTED VERDICT FOR RESPONDENT RAILROAD.  HE GAVE THE
ONLY TESTIMONY WITH RESPECT TO THE ACCIDENT AND TESTIFIED THAT, WHILE
THE TRAIN WAS PROCEEDING SLOWLY, IT MADE A SUDDEN STOP WHICH THREW HIM
TO THE FLOOR OF THE CABOOSE WHERE HE WAS RIDING.  THE OFFICIAL REPORT
OF THE ACCIDENT, WHICH HE SIGNED, STATED THAT THE STOP WAS MADE TO
AVOID STRIKING AN AUTOMOBILE AT A GRADE CROSSING.  PETITIONER GAVE SOME
FURTHER TESTIMONY ABOUT THE OPERATION OF AIR BRAKES, THE FREQUENCY OF
EMERGENCY BRAKING IN HIS EXPERIENCE, AND OTHER METHODS OF SLOWING DOWN
THE TRAIN THAN BY EMERGENCY BRAKING.  ON THIS RECORD, THE COURT OF
APPEALS FOUND A COMPLETE ABSENCE OF PROBATIVE FACTS TO WARRANT
SUBMISSION OF THE CASE TO THE JURY, AND IT AFFIRMED THE JUDGMENT OF THE
DISTRICT COURT.  228 F.2D 902. 

NO. 59 WAS AN APPEAL UNDER THE JONES ACT, 41 STAT. 1007, 46 U.S.C.
SEC. 688, WHOSE STANDARD OF LIABILITY IS EXPLICITLY THAT OF THE FEDERAL
EMPLOYERS' LIABILITY ACT IN THIS TYPE OF CASE; THIS CASE THEREFORE
PRESENTS THE SAME PROBLEM FOR THE COURT AS THE OTHER THREE.  PETITIONER
HAD OBTAINED A JUDGMENT, WHICH WAS REVERSED BY THE COURT OF APPEALS FOR
THE SECOND CIRCUIT FOR FAILURE OF PROOF OF NEGLIGENCE.  THE FACTS AND
REASONS FOR REVERSAL ARE SET FORTH IN THE OPINION OF THAT COURT: 

"PLAINTIFF WAS A BAKER ENGAGED AT THE TIME OF THE ACCIDENT IN SERVING
ICE CREAM IN THE GALLEY ON C DECK OF DEFENDANT'S SS BRAZIL.  USING THE
STANDARD ICE CREAM SCOOP PROVIDED FOR THE PURPOSE, PLAINTIFF DISPOSED
OF THE CONTENTS OF A HALF USED TUB AND HAD WORKED HIS WAY ABOUT HALF
WAY DOWN A FULL ADDITIONAL TUB.  THERE HE FOUND THE ICE CREAM 'AS HARD
AS A BRICKBAT,' AND THE SCOOP BECAME USELESS.  SO IT OCCURRED TO
PLAINTIFF THAT ABOUT A FOOT AND A HALF FROM WHERE HE WAS SERVING AND
'KEPT UNDERNEATH THE GRIDDLE' WAS A BUTCHER KNIFE, ABOUT EIGHTEEN
INCHES LONG AND AS SHARP AS A RAZOR, WHICH MIGHT BE USED TO CHIP THE
ICE CREAM INTO SMALL PIECES.  HE WAS CHIPPING AWAY WHEN HIS HAND
SLIPPED AND HE WAS BADLY CUT, RESULTING LATER IN THE LOSS OF TWO
FINGERS OF HIS RIGHT HAND. 

"  ...  THE NEGLIGENCE OF DEFENDANT IS SUPPOSED TO STEM FROM A
FAILURE TO PROVIDE A SAFE PLACE TO WORK AND SAFE TOOLS AND APPLIANCES. 
RELIANCE IS ALSO PLACED UPON THE FACT THAT PLAINTIFF HAD BEEN DIRECTED
TO FILL THE ORDERS BROUGHT INTO THE GALLEY BY THE WAITERS AND IT IS
SAID THAT THERE MUST HAVE BEEN SOMETHING WRONG WITH THE REFRIGERATION
SYSTEM OR THE ICE CREAM WOULD NOT HAVE BEEN SO HARD. 

"BUT NO ONE IN AUTHORITY TOLD PLAINTIFF TO USE THE BUTCHER KNIFE,
WHICH WAS CUSTOMARILY USED IN CUTTING FRENCH BREAD.  THE KNIFE WAS
PROPERLY IN THE GALLEY AND THERE WAS NOTHING DEFECTIVE ABOUT IT.  BUT
IT WAS NEVER DESIGNED FOR OR INTENDED TO BE USED AS A DAGGER OR ICE
PICK FOR CHIPPING FROZEN ICE CREAM.  AND THAT IT WOULD BE PUT TO SUCH
USE WAS NOT WITHIN THE REALM OF REASONABLE FORESEEABILITY  ...  . 

"THERE BEING NO PROOF OF FAULT ON THE PART OF THE SHIPOWNER,
DEFENDANT'S MOTION FOR A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED." 
228 F.2D 891. 

IN ALL GOOD CONSCIENCE, WHAT "SPECIAL AND IMPORTANT" REASON FOR
GRANTING CERTIORARI DO THE FACTS IN ANY ONE OF THESE CASES DISCLOSE? 
IN THREE OF THEM, THE TRIAL JUDGE HAD ALLOWED A CASE TO GO TO THE JURY,
AND THREE UNANIMOUS REVIEWING COURTS - TWO COURTS OF APPEALS AND ONE
STATE SUPREME COURT - HAD REVERSED FOR LACK OF EVIDENCE.  IN EACH OF
THESE CASES, THIS COURT HAS COMBED THE RECORD AND FOUND THAT THERE WAS
SUFFICIENT EVIDENCE FOR THE CASE TO GO TO THE JURY, ALTHOUGH IN NO. 28
THE COURT FOUND EVIDENCE OF NEGLIGENCE IN THE FACT THAT "COMMON
EXPERIENCE" TEACHES "THAT A PASSING TRAIN WILL FAN THE FLAMES OF A
FIRE," WHEREAS IN NO. 46 THE COURT FOUND INSUFFICIENCY OF EVIDENCE TO
GO TO THE JURY BECAUSE "THERE IS NO EVIDENCE TO SHOW THAT UNSCHEDULED
AND SUDDEN STOPS OF TRAINS ARE UNUSUAL OR EXTRAORDINARY OCCURRENCES." 
IN NO. 46, THE COURT THEREFORE AFFIRMS THE JUDGMENT OF THE COURT OF
APPEALS, WHICH HAD AFFIRMED THE DIRECTION OF A VERDICT FOR DEFENDANT. 
IN ANY EVENT, THE COURT IN THESE FOUR CASES HAS MERELY REVIEWED
EVIDENCE THAT HAS ALREADY BEEN REVIEWED BY TWO LOWER COURTS, AND IN SO
DOING IT IGNORES ITS OWN STRICTURES TO THE BAR THAT "WE DO NOT GRANT A
CERTIORARI TO REVIEW EVIDENCE AND DISCUSS SPECIFIC FACTS."  UNITED
STATES V. JOHNSTON, 268 U.S. 220, 227.  SEE ALSO HOUSTON OIL CO. V.
GOODRICH, 245 U.S. 440; SOUTHERN POWER CO. V. NORTH CAROLINA PUBLIC
SERVICE CO., 263 U.S. 508; GENERAL TALKING PICTURES CORP. V. WESTERN
ELECTRIC CO., 304 U.S. 175, 178.  CONSTANT COMPLAINTS HAVE BEEN MADE BY
SUCCESSIVE CHIEF JUSTICES ABOUT THE LARGE NUMBER OF FRIVOLOUS PETITIONS
THAT ARE FILED EACH TERM, "FRIVOLOUS" MEANING THAT THE ISSUES ARE NOT
DESERVING OF CONSIDERATION FOR REVIEW WHEN JUDGED BY THE COURT'S
INSTRUCTIONS TO THE BAR.  SEE THE REMARKS OF CHIEF JUSTICE TAFT, IN 35
YALE L.J. 1, 3-4; CHIEF JUSTICE HUGHES, IN 20 A.B.A.J. 341; CHIEF
JUSTICE VINSON, IN 69 S. CT. V, VI-VII.  IF THE COURT DOES NOT ABIDE BY
ITS RULES, HOW CAN IT EXPECT THE BAR TO DO SO?  STANDARDS MUST BE
ENFORCED TO BE RESPECTED.  IF THEY ARE MERELY LEFT AS SOMETHING ON
PAPER, THEY MIGHT AS WELL BE WRITTEN ON WATER. 

THE RULE THAT THE COURT DOES NOT GRANT CERTIORARI TO REVIEW EVIDENCE
IS A WISE RULE, INDEED INDISPENSABLE TO THE WORK OF THE COURT, AND IS
AS EQUALLY APPLICABLE TO NEGLIGENCE CASES AS TO ANY OTHER TYPE OF
CASE.  PERHAPS A WORD SHOULD BE SAID ABOUT THE BASIS OF THE CAUSE OF
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  LIABILITY UNDER THE
ACT IS BASED ON NEGLIGENCE.  (FN6)  AS FAR AS THE SUBSTANTIVE CAUSE OF
ACTION IS CONCERNED, THIS IS THE HISTORIC CAUSE OF ACTION FOR
NEGLIGENCE AS IT HAS DEVELOPED FROM THE COMMON LAW.  IT INVOLVES THE
SAME GENERAL CONCEPT ON WHICH IS BASED EVERY "NEGLIGENCE CASE" IN THE
STATE COURTS AND IN THE MULTITUDINOUS CASES IN THE FEDERAL COURTS ON
DIVERSITY OF CITIZENSHIP IN WHICH THE QUESTION IS MERELY ONE OF COMMON
LAW NEGLIGENCE; THAT IS, IT IS THE FAMILIAR TYPE OF LITIGATION THAT IS
PART OF THE DAY-TO-DAY BUSINESS OF STATE AND FEDERAL TRIAL JUDGES. 

THE 1908 ACT DENIED THE RAILROADS THE BENEFIT OF CERTAIN COMMON-LAW
DEFENSES AND THE 1939 AMENDMENT, 53 STAT. 1404, ABOLISHED THE DEFENSE
OF ASSUMPTION OF RISK, BUT THE FACT THAT A RIGHT TO RECOVER IS NOT
BARRED BY WHAT THERETOFORE WAS A DEFENSE DOES NOT CHANGE THE BASIS OF
THE RIGHT.  THIS HAS BEEN RECOGNIZED IN THE OPINIONS OF THIS COURT IN
WHICH IT HAS REVERSED LOWER COURTS ON THE QUESTION OF THE SUFFICIENCY
OF THE EVIDENCE.  THE COURT HAS NEVER INTIMATED THAT THE CONCEPT OF
NEGLIGENCE, UNDEFINED IN THE STATUTE, HAS SOME SPECIAL OR ESOTERIC
CONTENT AS USED IN THE ACT OR IS ANYTHING OTHER THAN A STATUTORY
ABSORPTION OF THE COMMON-LAW CONCEPT.  (FN7) 

"ONE'S DEEP SYMPATHY IS OF COURSE AROUSED BY A VICTIM OF THE HAZARDS
OF NEGLIGENCE LITIGATION IN SITUATIONS LIKE THE ONE BEFORE US.  BUT THE
REMEDY FOR AN OBSOLETE AND UNCIVILIZED SYSTEM OF COMPENSATION FOR LOSS
OF LIFE OR LIMB OF CREWS ON SHIPS AND TRAINS IS NOT INTERMITTENT
DISREGARD OF THE CONSIDERATIONS WHICH LED CONGRESS TO ENTRUST THIS
COURT WITH THE DISCRETION OF CERTIORARI JURISDICTION.  THE REMEDY IS AN
ADEQUATE AND EFFECTIVE SYSTEM OF WORKMEN'S COMPENSATION," ADEQUATE IN
AMOUNT AND ESPECIALLY PROMPT IN ADMINISTRATION.  MCALLISTER V. UNITED
STATES, 348 U.S. 19, 23-24 (SEPARATE OPINION).  IT DESERVES TO BE
RECORDED THAT PROFESSOR JOHN CHIPMAN GRAY, A LEGAL SCHOLAR WITH SOCIAL
INSIGHT, TAUGHT HIS STUDENTS FIFTY YEARS AGO, BEFORE THE FIRST
WORKMEN'S COMPENSATION LAW HAD BEEN ENACTED, THAT IT IS ANACHRONISTIC
TO APPLY THE COMMON-LAW DOCTRINE OF NEGLIGENCE TO INJURIES SUFFERED BY
RAILROAD EMPLOYEES RATHER THAN HAVE SOCIETY RECOGNIZE SUCH INJURIES AS
INEVITABLE INCIDENTS OF RAILROADING AND PROVIDE COMPENSATION ON THAT
BASIS.  THE PERSISTENCE OF THIS ARCHAIC AND CRUEL SYSTEM IS
ATTRIBUTABLE TO MANY FACTORS.  INERTIA OF COURSE.  BUT ALSO IT IS
MERELY ONE ILLUSTRATION OF THE LAG OF REFORM BECAUSE OF THE OPPOSITION
OF LAWYERS WHO RESIST CHANGE OF THE FAMILIAR, PARTICULARLY WHEN THEY
HAVE THRIVEN UNDER SOME OUTWORN DOCTRINE OF LAW.  (FN8)  FINALLY, ONE
CANNOT ACQUIT THE ENCOURAGEMENT GIVEN BY THIS COURT FOR SEEKING SUCCESS
IN THE LOTTERY OF OBTAINING HEAVY VERDICTS OF CONTRIBUTING TO THE
CONTINUANCE OF THIS SYSTEM OF COMPENSATION WHOSE ESSENTIAL INJUSTICE
CAN HARDLY BE ALLEVIATED BY THE OCCASIONAL "CORRECTION" IN THIS COURT
OF ILL-SUCCESS. 

RATHER THAN PARAPHRASE, I SHALL REPEAT WHAT I HAVE ALREADY SAID ABOUT
NEGLIGENCE CASES AND CERTIORARI POLICY IN WILKERSON V. MCCARTHY, 336
U.S. 53, 64, 66:  "CONSIDERING THE VOLUME AND COMPLEXITY OF THE CASES
WHICH OBVIOUSLY CALL FOR DECISION BY THIS COURT, AND CONSIDERING THE
TIME AND THOUGHT THAT THE PROPER DISPOSITION OF SUCH CASES DEMANDS, I
DO NOT THINK WE SHOULD TAKE CASES MERELY TO REVIEW FACTS ALREADY
CANVASSED BY TWO AND SOMETIMES THREE COURTS EVEN THOUGH THOSE FACTS MAY
HAVE BEEN ERRONEOUSLY APPRAISED.  THE DIVISION IN THIS COURT WOULD SEEM
TO DEMONSTRATE BEYOND PERADVENTURE THAT NOTHING IS INVOLVED IN THIS
CASE EXCEPT THE DRAWING OF ALLOWABLE INFERENCES FROM A NECESSARILY
UNIQUE SET OF CIRCUMSTANCES.  FOR THIS COURT TO TAKE A CASE WHICH TURNS
MERELY ON SUCH AN APPRAISAL OF EVIDENCE, HOWEVER MUCH HARDSHIP IN THE
FALLIBLE APPLICATION OF AN ARCHAIC SYSTEM OF COMPENSATION FOR INJURIES
TO RAILROAD EMPLOYEES (FN9) MAY TOUCH OUR PRIVATE SYMPATHY, IS TO DENY
DUE REGARD TO THE CONSIDERATIONS WHICH LED THE COURT TO ASK AND
CONGRESS TO GIVE THE POWER TO CONTROL THE COURT'S DOCKET.  SUCH POWER
CARRIES WITH IT THE RESPONSIBILITY OF GRANTING REVIEW ONLY IN CASES
THAT DEMAND ADJUDICATION ON THE BASIS OF IMPORTANCE TO THE OPERATION OF
OUR FEDERAL SYSTEM; IMPORTANCE OF THE OUTCOME MERELY TO THE PARTIES IS
NOT ENOUGH ...  ."  SEE ALSO CARTER V. ATLANTA & ST. A.B.R. CO., 338
U.S. 430, 437; MCALLISTER V. UNITED STATES, 348 U.S. 19, 23. 

THE COURT FINDS JUSTIFICATION FOR GRANTING CERTIORARI IN AN ALLEGED
CONFLICT OF THESE DECISIONS OF THE COURTS OF APPEALS FOR THE SECOND,
SIXTH, AND SEVENTH CIRCUITS AND THE SUPREME COURT OF MISSOURI WITH THE
APPLICABLE DECISIONS OF THIS COURT.  ALL THAT CAN FAIRLY BE SAID IS
THAT THESE COURTS FOUND THAT THERE WAS NOT EVIDENCE TO BRING THESE
CASES WITHIN THE RECOGNIZED RULES FOR SUBMITTING A CASE TO THE JURY. 
IN NONE OF THEM IS THERE ANY INTIMATION OR ATMOSPHERIC INDICATION OF
UNWILLINGNESS TO ENFORCE THE GOVERNING RULES OF THE ACT AS LAID DOWN BY
THIS COURT.  THESE RULES ARE WELL KNOWN.  THAT THERE SHOULD BE
DIFFERENCES OF OPINION IN THEIR APPLICATION IS ALMOST INEVITABLE. 
(FN10)  BUT ONCE CONGRESS IN 1916 COMMANDED THAT THE ORDINARY FEDERAL
EMPLOYERS' LIABILITY ACT CASE, LIKE OTHER ESSENTIALLY PRIVATE
LITIGATION, SHOULD REACH A FINAL DECISION IN THE COURTS OF APPEALS OR
THE STATE APPELLATE TRIBUNALS, THIS COURT SHOULD NEVER HAVE GRANTED
CERTIORARI TO ASSESS THE EVIDENCE IN ANY OF THEM.  (FN11)  I WOULD NOT
CONTINUE A BAD PRACTICE TO AID A FEW PLAINTIFFS BECAUSE THERE WAS ONCE
A BAD PRACTICE THAT AIDED A FEW DEFENDANTS.  ONE STILL DOES NOT COMMIT
TWO WRONGS TO "DO RIGHT." 

THIS IS NOT THE SUPREME COURT OF REVIEW FOR EVERY CASE DECIDED
"UNJUSTLY" BY EVERY COURT IN THE COUNTRY.  THE COURT'S PRACTICE IN
TAKING THESE FEDERAL EMPLOYERS' LIABILITY ACT CASES DISCRIMINATES
AGAINST OTHER PERSONAL INJURY CASES, FOR EXAMPLE THOSE IN THE FEDERAL
COURTS ON DIVERSITY JURISDICTION.  SIMILAR QUESTIONS OF NEGLIGENCE ARE
INVOLVED THERE AND THE OPPORTUNITY FOR SWALLOWING UP MORE OF THE
SUPREME COURT'S ENERGY IS VERY GREAT INDEED.  WHILE 1,332 CASES WERE
COMMENCED UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IN THE FEDERAL
DISTRICT COURTS IN THE FISCAL YEAR 1956 AND 2,392 CASES UNDER THE JONES
ACT, 11,427 PERSONAL INJURY CASES WERE BEGUN UNDER THE DIVERSITY
JURISDICTION IN THE DISTRICT COURTS.  ANNUAL REPORT OF THE DIRECTOR OF
THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS - 1956, PP. 52
53.  THE COURT MAY WELL HAVE HAD THIS DISCRIMINATION IN MIND WHEN IT
GRANTED CERTIORARI IN THE DIVERSITY CASE OF GIBSON V. PHILLIPS
PETROLEUM CO., 352 U.S. 874, AND DECIDED IT ON THE MERITS.  A FEW MORE
SUCH DECISIONS AND A FLOOD OF PETITIONS FROM THIS SOURCE MAY
CONFIDENTLY BE EXPECTED.  WHETHER OR NOT IT BE TRUE THAT WE ARE A
LITIGIOUS PEOPLE, IT IS A MATTER OF EXPERIENCE THAT CLIENTS, IF NOT
LAWYERS, HAVE A STRONG URGE TO EXHAUST ALL POSSIBILITY OF FURTHER
APPEAL, PARTICULARLY WHEN JUDICIALLY ENCOURAGED TO DO SO.  DISAPPOINTED
LITIGANTS AND LOSING LAWYERS LIKE TO HAVE ANOTHER GO AT IT, AND WHY
SHOULD THEY NOT TRY WHEN CERTIORARI WAS GRANTED IN CASES LIKE THESE? 

IT IS NOT ENOUGH, HOWEVER, TO DEAL WITH THIS PROBLEM ON AN ABSTRACT,
THEORETICAL BASIS.  THE STATISTICAL HISTORY OF THE FEDERAL EMPLOYERS'
LIABILITY ACT, AS SET FORTH IN THE TABLES IN THE APPENDICES TO THIS
OPINION, GIVES CONCRETE EVIDENCE OF THE RECURRING NATURE OF THE PROBLEM
AND THE TIME-CONSUMING NATURE OF THE LITIGATION.  IN THE EARLY YEARS OF
THE ACT, WHEN REVIEW BY THIS COURT WAS ON WRIT OF ERROR, THERE WAS A
LARGE NUMBER OF CASES IN WHICH SUFFICIENCY OF EVIDENCE WAS AT ISSUE. 
CONTRARY TO GENERAL BELIEF, HOWEVER, EMPLOYEES FARED WELL IN THIS TYPE
OF CASE.  OF THE 42 CASES DECIDED BY THE COURT RAISING THAT ISSUE, A
JUDGMENT FOR THE PLAINTIFF WAS REVERSED FOR EVIDENTIARY REASONS IN ONLY
THREE CASES AND A JUDGMENT FOR THE DEFENDANT RAILROAD UPHELD IN ONLY
SEVEN.  IN THE OTHER 32 CASES, JUDGMENTS FOR PLAINTIFFS WERE AFFIRMED
OR JUDGMENTS FOR DEFENDANTS REVERSED. 

ONCE EASY ACCESS TO THIS COURT WAS SHUT OFF BY THE DISCRETIONARY
POWER OF REVIEW OVER THESE CASES THAT WAS GIVEN TO THE COURT IN 1916,
FEW FELA DECISIONS WERE RENDERED, AND ONLY FOUR, OF WHICH ONE WAS ON
WRIT OF ERROR, DEALING WITH THE SUFFICIENCY OF THE EVIDENCE, IN THE
FIVE-YEAR PERIOD COVERED BY THE 1918 THROUGH THE 1922 TERMS.  DURING
THE NEXT TEN YEARS, HOWEVER, THE COURT CONCERNED ITSELF MORE AND MORE
WITH THE ACT, BUT DURING THIS ERA THE RAILROADS TENDED TO PREVAIL. 
THIRTY-FIVE DECISIONS WERE RENDERED FROM THE 1923 TERM THOUGH THE 1932
TERM.  IN 27 OF THESE A JUDGMENT FOR A PLAINTIFF WAS REVERSED FOR
EVIDENTIARY REASONS; IN ANOTHER THE COURT AFFIRMED THE REVERSAL OF A
JUDGMENT FOR A PLAINTIFF; AND IN ANOTHER THE COURT REVERSED THE
REVERSAL OF A DIRECTED VERDICT FOR A RAILROAD.  (FOR A REVIEW OF
CERTIORARI POLICY UNDER THE FELA DURING THIS PERIOD, SEE FRANKFURTER
AND LANDIS, BUSINESS OF THE SUPREME COURT AT OCTOBER TERM, 1931, 46
HARV. L. REV. 226, 240-253.) 

THEREAFTER, DURING THE REMAINING EIGHT TERMS OF MR. CHIEF JUSTICE
HUGHES, THE NUMBER OF SUFFICIENCY-OF-THE-EVIDENCE CASES UNDER THE ACT
THAT WERE GRANTED REVIEW FELL OFF CONSIDERABLY.  ONLY SEVEN DECISIONS
WERE RENDERED DURING THAT PERIOD.  THE NEXT NINE-YEAR PERIOD, HOWEVER,
SAW A LARGE INCREASE AGAIN, WITH 27 DECISIONS DURING THE 1941 THROUGH
1949 TERMS.  UNLIKE THE PREVIOUS EXPERIENCE WITH THE ACT, IT WAS NOT
EFFORTS OF RAILROADS SEEKING TO REVERSE JUDGMENTS IN FAVOR OF INJURED
WORKERS THAT CONSTITUTED THE MAJOR PORTION OF THE BUSINESS DURING THIS
PERIOD, BUT RATHER EFFORTS BY INJURED WORKERS TO UPSET JUDGMENTS FOR
RAILROADS.  AND THEY WERE SUCCESSFUL.  JUDGMENTS FOR RAILROADS WERE
SUSTAINED IN ONLY FOUR CASES.  IN ALL THE OTHERS, THE COURT REVERSED A
JUDGMENT OF A LOWER COURT THAT EITHER HAD REVERSED A JURY VERDICT FOR A
PLAINTIFF OR HAD AFFIRMED A JUDGMENT FOR A RAILROAD. 

IN THE FOLLOWING FOUR TERMS, BUSINESS AGAIN SLACKENED AND ONLY TWO
CASES CONCERNING SUFFICIENCY OF THE EVIDENCE WERE DECIDED UNDER THE
ACT.  WE NOW SEEM TO HAVE ENTERED AGAIN ON A PERIOD OF RENEWED ACTIVITY
BY THE COURT IN THIS FIELD.  TWO DECISIONS WERE RENDERED IN THE 1954
TERM, THREE IN THE 1955 TERM, FOUR THUS FAR THIS TERM, AND TWO
ADDITIONAL PETITIONS FOR CERTIORARI HAVE ALREADY BEEN GRANTED THIS
TERM. 

A FURTHER INDICATION OF THE TENDENCY IN RECENT COURT DECISIONS IS
PROVIDED BY A STUDY OF PETITIONS FOR CERTIORARI IN FELA CASES FROM THE
1938 THROUGH THE 1954 TERMS.  THIS STUDY DISCLOSED THAT OF THE 260
PETITIONS FILED, SUFFICIENCY OF THE EVIDENCE OF NEGLIGENCE OR OF
CAUSATION FOR SUBMISSION TO THE JURY WAS THE PREDOMINANT QUESTION IN
149.  SEVENTY-EIGHT OF THESE PETITIONS WERE FILED BY THE EMPLOYEE AND
ALL OF THE 37 GRANTED PETITIONS WERE FROM THIS GROUP, EXCEPT ONE IN
WHICH THE WRIT WAS LATER DISMISSED AS IMPROVIDENTLY GRANTED.  MCCARTHY
V. BRUNER, CERTIORARI GRANTED, 322 U.S. 718, CERTIORARI DISMISSED, 323
U.S. 673.  CERTIORARI POLICY IN FELA CASES, 69 HARV. L. REV. 1441, 1445
1446. 

THESE FIGURES TELL ONLY A SMALL PART OF THE STORY.  WHILE THIS
OPINION CONCERNS ITSELF PRINCIPALLY WITH CASES UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, THE SAME KIND OF QUESTION ARISES UNDER MANY
OTHER STATUTES.  SEE FOOTNOTE 2, SUPRA.  AND EXPERIENCE LEAVES NO
DOUBT, THOUGH THE FACT CANNOT BE ESTABLISHED STATISTICALLY, THAT BY
GRANTING REVIEW IN THESE CASES, THE COURT ENCOURAGES THE FILING OF
PETITIONS FOR CERTIORARI IN OTHER TYPES OF CASES RAISING ISSUES THAT
LIKEWISE HAVE NO BUSINESS TO BE BROUGHT HERE.  MOREOVER, THE
CONSIDERATIONS GOVERNING DISCHARGE OF THE COURT'S FUNCTION INVOLVE ONLY
IN PART QUANTITATIVE FACTORS.  FINALLY, AND MOST IMPORTANT, GRANTING
REVIEW IN ONE OR TWO CASES THAT PRESENT A COMPASSIONATE APPEAL ON THIS
GROUND AND ONE OR TWO THAT PRESENT A COMPASSIONATE APPEAL ON THAT
GROUND AND ONE OR TWO THAT PRESENT A COMPASSIONATE APPEAL ON A THIRD
GROUND INEVITABLY MAKES THAT DRAIN UPON THE AVAILABLE ENERGY OF THE
COURT THAT IS SO INIMICAL TO THE FULLEST INVESTIGATION OF, THE AMPLEST
DELIBERATION ON, THE MOST EFFECTIVE OPINION-WRITING AND THE MOST
CRITICAL EXAMINATION OF DRAFT OPINIONS IN, THE CASES THAT HAVE
UNQUESTIONED CLAIMS UPON THE COURT.    IT IS IMPOSSIBLE TO READ THE 106
WRITTEN OPINIONS OF THE SUPREME COURT DEALING WITH THIS TYPE OF ISSUE,
SEE APPENDICES A AND B, WITHOUT FEELING THAT DURING DIFFERENT PERIODS
THE COURT, WHILE USING THE SAME GENERALITIES IN SPEAKING ABOUT THE
RELATION OF JUDGE AND JURY TO THE CAUSE OF ACTION FOR NEGLIGENCE, HAS
APPLIED THOSE PRINCIPLES DIFFERENTLY FROM TIME TO TIME TO THE FACTS OF
DIFFERENT CASES.  THE DIVIDED VIEWS ON THIS COURT TODAY WITH RESPECT TO
THE APPLICATION OF THOSE PRINCIPLES MERELY REFLECT THE DIVIDED VIEWS OF
STATE AND FEDERAL JUDGES THROUGHOUT THE COUNTRY ON PROBLEMS OF
NEGLIGENCE.  AS LONG AS THERE IS A DIVISION OF FUNCTIONS BETWEEN JUDGE
AND JURY, THERE WILL BE DIVISION OF OPINION CONCERNING THE CORRECTNESS
OF TRIAL JUDGES' ACTIONS IN INDIVIDUAL CASES.  BUT SINCE THE LAW
OBVIOUSLY DOES NOT REMAIN "SETTLED" IN THIS FIELD VERY LONG, ONE DOES
NOT HAVE TO BE A PROPHET TO BE CONFIDENT THAT THE COURT, IF IT
CONTINUES ITS PRESENT CERTIORARI POLICY, WILL ONE DAY RETURN TO ITS
ATTITUDE OF THE 1920'S IN THESE INDIVIDUAL CASES.  WITH A CHANGED
MEMBERSHIP, THE COURT MIGHT TOMORROW READILY AFFIRM ALL FOUR OF THE
CASES THAT IT DECIDES TODAY.  THERE IS NOTHING IN THE FEDERAL
EMPLOYERS' LIABILITY ACT TO SAY WHICH VIEW IS CORRECT.  THE ACT
EXPRESSED A SOCIAL POLICY, AND IT EXPRESSED THAT POLICY IN TERMS OF A
FAMILIAR, BUT ELUSIVELY INAPT, COMMON-LAW CAUSE OF ACTION.  IT IS
SUGGESTED IN EFFECT THAT THE HISTORY OF FELA LITIGATION IN THIS COURT
REVEALS A SHIFT IN MOOD, PHILOSOPHY IF ONE PLEASES, TOWARDS THE FEDERAL
EMPLOYERS' LIABILITY ACT - THAT AT ONE TIME THE CHIEF CONCERN MAY BE
LIVELY REGARD FOR WHAT ARE CONCEIVED TO BE UNFAIR INROADS UPON THE
RAILROADS' EXCHEQUER (FN12) WHILE AT ANOTHER PERIOD THE PREOCCUPATION
MAY BE WITH PROTECTION OF EMPLOYEES AND THEIR FAMILIES, SO FAR AS MONEY
DAMAGES CAN DO SO, AGAINST THE INHERENT HAZARDS OF THEIR INDISPENSABLE
LABOR.  BE THAT AS IT MAY, THE DESIRE TO ENGRAFT A PHILOSOPHY, EITHER
PHILOSOPHY, UPON AN OUTMODED, UNFAIR SYSTEM OF LIABILITY SHOULD NOT
LEAD THE COURT TO BEND THE RULES BY WHICH IT IS GOVERNED IN OTHER CASES
IN THE EXERCISE OF ITS DISCRETIONARY JURISDICTION. 

THIS UNVARNISHED ACCOUNT OF FEDERAL EMPLOYERS' LIABILITY ACT
LITIGATION IN THIS COURT RELATING TO SUFFICIENCY OF THE EVIDENCE FOR
SUBMISSION OF CASES TO THE JURY IS SURELY NOT AN EXHILARATING STORY. 
FOR THE SUPREME COURT OF THE UNITED STATES TO SPEND TWO HOURS OF SOLEMN
ARGUMENT, PLUS COUNTLESS OTHER HOURS READING THE BRIEFS AND RECORD AND
WRITING OPINIONS, TO DETERMINE WHETHER THERE WAS EVIDENCE TO SUPPORT AN
ALLEGATION THAT IT COULD REASONABLY BE FORESEEN THAT AN ICE-CREAM
SERVER ON A SHIP WOULD USE A BUTCHER'S KNIFE TO SCOOP OUT ICE CREAM
THAT WAS TOO HARD TO BE SCOOPED WITH A REGULAR SCOOP, IS SURELY TO
MISCONCEIVE THE DISCRETION THAT WAS ENTRUSTED TO THE WISDOM OF THE
COURT FOR THE CONTROL OF ITS CALENDAR.  THE COURT MAY OR MAY NOT BE
"DOING JUSTICE" IN THE FOUR INSIGNIFICANT CASES IT DECIDES TODAY; IT
CERTAINLY IS DOING INJUSTICE TO THE SIGNIFICANT AND IMPORTANT CASES ON
THE CALENDAR AND TO ITS OWN ROLE AS THE SUPREME JUDICIAL BODY OF THE
COUNTRY. 

IT IS, I BELIEVE, WHOLLY ACCURATE TO SAY THAT THE COURT WILL BE
ENABLED TO DISCHARGE ADEQUATELY THE VITAL, AND, I FEEL, THE
INCREASINGLY VITAL, RESPONSIBILITY IT BEARS FOR THE GENERAL WELFARE
ONLY IF IT RESTRICTS ITS REVIEWING POWER TO THE ADJUDICATION OF
CONSTITUTIONAL ISSUES OR OTHER QUESTIONS OF NATIONAL IMPORTANCE,
INCLUDING THEREIN SETTLEMENT OF CONFLICT AMONG THE CIRCUITS.  SURELY IT
WAS THIS CONVICTION, BORN OF EXPERIENCE, THAT LED THE COURT TO ASK OF
CONGRESS THAT OF THE GREAT MASS OF LITIGATION IN THE STATE AND FEDERAL
COURTS ONLY THOSE CASES SHOULD BE ALLOWED TO BE BROUGHT HERE THAT THIS
COURT DEEMED FIT FOR REVIEW.  SUCH WAS THE JURISDICTIONAL POLICY
ACCEPTED BY CONGRESS WHEN IT YIELDED TO THE COURT'S REALIZATION OF THE
CONDITIONS NECESSARY FOR ITS PROPER FUNCTIONING. 

FOR ONE THING, AS THE CURRENT UNITED STATES REPORTS COMPARED WITH
THOSE OF EVEN A GENERATION AGO AMPLY PROVE, THE TYPES OF CASES NOW
CALLING FOR DECISION TO A CONSIDERABLE EXTENT REQUIRE INVESTIGATION OF
VOLUMINOUS LITERATURE FAR BEYOND THE LAW REPORTS AND OTHER LEGAL
WRITINGS.  IF IT IS TO YIELD ITS PROPER SIGNIFICANCE, THIS VAST MASS OF
MATERIALS, OFTEN CONFUSED AND CONFLICTING, MUST BE PASSED THROUGH THE
SIEVE OF REFLECTION.  JUDICIAL REFLECTION IS A PROCESS THAT REQUIRES
TIME AND FREEDOM FROM THE PRESSURE OF HAVING MORE WORK TO DO THAN CAN
BE WELL DONE.  IT IS NOT A BIT OF QUIXOTISM TO BELIEVE THAT, OF THE 63
CASES SCHEDULED FOR ARGUMENT DURING THE REMAINING MONTHS OF THIS TERM,
THERE ARE A HALF DOZEN THAT COULD ALONE EASILY ABSORB THE ENTIRE
THOUGHT OF THE COURT FOR THE REST OF THE TERM. 

THE JUDGMENTS OF THIS COURT ARE COLLECTIVE JUDGMENTS.  SUCH JUDGMENTS
ARE ESPECIALLY DEPENDENT ON AMPLE TIME FOR PRIVATE STUDY AND REFLECTION
IN PREPARATION 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 THAT FULL AND FRUITFUL INTERCHANGE OF MINDS THAT IS
INDISPENSABLE TO WISE DECISIONS AND PERSUASIVE OPINIONS BY THE COURT. 
UNLESS THE COURT VIGOROUSLY ENFORCES ITS OWN CRITERIA FOR GRANTING
REVIEW OF CASES, IT WILL INEVITABLY FACE AN ACCUMULATION OF ARREARS OR
WILL DISPOSE OF ITS ESSENTIAL BUSINESS IN TOO HURRIED AND THEREFORE TOO
SHALLOW A WAY. 

I WOULD DISMISS ALL FOUR WRITS OF CERTIORARI AS IMPROVIDENTLY
GRANTED. 

FN1  HE FORMALLY TOOK HIS SEAT ON JUNE 5, 1916 (241 U.S. III), BUT
DID NOT BEGIN ACTIVE PARTICIPATION IN THE COURT'S WORK UNTIL THE
BEGINNING OF THE OCTOBER TERM, 1916. 

FN2  THROUGHOUT THIS OPINION I HAVE DEALT WITH THE ISSUE OF GRANTING
CERTIORARI IN THIS TYPE OF CASE ALMOST ENTIRELY IN TERMS OF THE FEDERAL
EMPLOYERS' LIABILITY ACT BECAUSE THE GREATEST ABUSE OF THE CERTIORARI
POLICY HAS OCCURRED IN THAT FIELD.  THE PROBLEM IS NOT CONFINED TO THAT
ACT, HOWEVER, SINCE THE SAME OR SIMILAR ISSUES ARISE UNDER OTHER ACTS,
SUCH AS THE JONES ACT, 41 STAT. 1007, THE FEDERAL TORT CLAIMS ACT, 28
U.S.C. SECS. 1346(B), 2671-2680, THE SAFETY APPLIANCE ACT, 27 STAT.
531, THE BOILER INSPECTION ACT, 45 U.S.C. SEC. 22 ET SEQ., THE SUITS IN
ADMIRALTY ACT, 46 U.S.C. SEC. 741 ET SEQ., AND THE LUCAS ACT, 60 STAT.
902 (SEE BUFFALO FAULTLESS PANTS CO. V. UNITED STATES, 142 F. SUPP.
594).  INDEED, ONE OF THE DECISIONS TO WHICH THIS DISSENT IS WRITTEN,
NO. 59, ARISES UNDER THE JONES ACT. 

FN3  HILL V. ATLANTIC COAST LINE R. CO., 336 U.S. 911; CARTER V.
ATLANTA & ST. A.B.R. CO., 338 U.S. 430, 437; AFFOLDER V. NEW YORK, C. &
ST. L.R. CO., 339 U.S. 96, 101; MOORE V. CHESAPEAKE & O.R. CO., 340
U.S. 573, 578; ANDERSON V. ATLANTIC COAST LINE R. CO., 350 U.S. 807. 
SEE MCALLISTER V. UNITED STATES, 348 U.S. 19, 23 (SUITS IN ADMIRALTY
ACT); SCHULZ V. PENNSYLVANIA R. CO., 350 U.S. 523, 527 (JONES ACT). 
SEE ALSO WILKERSON V. MCCARTHY, 336 U.S. 53, 64; REYNOLDS V. ATLANTIC
COAST LINE R. CO., 336 U.S. 207, 209; STONE V. NEW YORK, C. & ST. L.R.
CO., 344 U.S. 407, 410. 

FN4  "IMPROVIDENTLY GRANTED" IS A TERM OF ART SIMPLY MEANING THAT ON
FULL CONSIDERATION IT BECOMES MANIFEST THAT THE CASE IS NOT THE TYPE OF
CASE THAT SHOULD HAVE BEEN BROUGHT HERE.  THE TERM IS THE COUNTERPART
OF THE PHRASE "IMPROVIDENTLY TAKEN," AS USED BY CONGRESS IN 28 U.S.C.
SEC. 2103, GOVERNING APPEALS FROM STATE COURTS THAT ARE IMPROVIDENTLY
TAKEN. 

FN5  SEE DISCUSSION OF THIS POINT IN RICE V. SIOUX CITY CEMETERY, 349
U.S. 70, AND CASES THERE COLLECTED AT P. 78, N. 2. 

FN6  THE ATTEMPTS TO SUBSTITUTE A WORKMEN'S COMPENSATION LAW ARE
DETAILED IN MILLER, THE QUEST FOR A FEDERAL WORKMEN'S COMPENSATION LAW,
18 LAW AND CONTEMPORARY PROBLEMS 188. 

FN7  SEE, E.G., WILKERSON V. MCCARTHY, 336 U.S. 53, 69:  "THE BASIS OF
LIABILITY UNDER THE ACT IS AND REMAINS NEGLIGENCE."  (CONCURRING
OPINION OF DOUGLAS, J.)  TO BE SURE, ON THE QUESTION OF CAUSALITY, THE
STATUTE HAS TRIED TO AVOID ISSUES ABOUT "SOLE PROXIMATE CAUSE," MEETING
THE REQUIREMENT OF A CAUSAL RELATION WITH THE LANGUAGE THAT THE INJURY
MUST RESULT "IN WHOLE OR IN PART" FROM THE EMPLOYER'S NEGLIGENCE.  SEE,
E.G., ILLINOIS CENTRAL R. CO. V. SKAGGS, 240 U.S. 66, 69-70. 

FN8  SEE ELIHU ROOT'S ADDRESS TO THE AMERICAN BAR ASSOCIATION IN
1914:  "LAWYERS ARE ESSENTIALLY CONSERVATIVE.  THEY DO NOT TAKE KINDLY
TO CHANGE.  THEY ARE NOT NATURALLY REFORMERS.  THEIR TIME IS OCCUPIED
MAINLY IN THINKING AND ARGUING ABOUT WHAT THE LAW OF THE PARTICULAR
CASE IS; ABOUT WHAT THE FACTS OF THE CASE ARE.  THE MOST SUCCESSFUL
LAWYERS ARE, AS A RULE, CONTINUALLY ENGROSSED IN THEIR OWN CASES AND
THEY HAVE LITTLE TIME AND LITTLE RESPECT FOR THE SPECULATIVE AND
HYPOTHETICAL.  THE LAWYERS WHO HAVE AUTHORITY AS LEADERS OF OPINION ARE
MEN, AS A RULE, WHO HAVE SUCCEEDED IN THEIR PROFESSION, AND MEN
NATURALLY TEND TO BE SATISIFED WITH THE CONDITIONS UNDER WHICH THEY ARE
SUCCEEDING."  ROOT, ADDRESSES ON GOVERNMENT AND CITIZENSHIP, 479, 484. 
SEE ALSO GIBSON, THE VENUE CLAUSE AND TRANSPORTATION OF LAWSUITS, 18
LAW AND CONTEMPORARY PROBLEMS 367, FOR SOME STATISTICS BEARING ON THE
INTEREST OF LAWYERS IN THE CONTINUANCE OF THE PRESENT SYSTEM.  THE
AUTHOR CITES THE EXAMPLE OF ONE SPECIALIST IN PERSONAL INJURY
LITIGATION WHOSE ADMINISTRATOR COLLECTED A MINIMUM OF $1,111,935 IN
FEES FROM 150 LAWSUITS PENDING AT THE DATE OF THE LAWYER'S DEATH. 

FN9  AN ARCHAIC SYSTEM, I MIGHT ADD, THAT ENCOURAGES PURSUIT OF BIG
VERDICTS IN INDIVIDUAL CASES, A PREOCCUPATION THAT HAS ATTAINED THE
DIGNITY OF FULL DOCUMENTATION OF SENSATIONAL METHODS BY WHICH A JURY'S
FEELINGS MAY BE EXPLOITED. 

FN10  "IF THERE WERE A BRIGHT LINE DIVIDING NEGLIGENCE FROM NON
NEGLIGENCE, THERE WOULD BE NO PROBLEM.  ONLY AN INCOMPETENT OR A WILFUL
JUDGE WOULD TAKE A CASE FROM THE JURY WHEN THE ISSUE SHOULD BE LEFT TO
THE JURY.  BUT SINCE QUESTIONS OF NEGLIGENCE ARE QUESTIONS OF DEGREE,
OFTEN VERY NICE DIFFERENCES OF DEGREE, JUDGES OF COMPETENCE AND
CONSCIENCE HAVE IN THE PAST, AND WILL IN THE FUTURE, DISAGREE AS TO
WHETHER PROOF IN A CASE IS SUFFICIENT TO DEMAND SUBMISSION TO THE
JURY.  THE FACT THAT A THIRD COURT THINKS THERE WAS ENOUGH TO LEAVE THE
CASE TO THE JURY DOES NOT INDICATE THAT THE OTHER TWO COURTS WERE
UNMINDFUL OF THE JURY'S FUNCTION.  THE EASY BUT TIMID WAY OUT FOR A
TRIAL JUDGE IS TO LEAVE ALL CASES TRIED TO A JURY FOR JURY
DETERMINATION, BUT IN SO DOING HE FAILS IN HIS DUTY TO TAKE A CASE FROM
THE JURY WHEN THE EVIDENCE WOULD NOT WARRANT A VERDICT BY IT.  A TIMID
JUDGE, LIKE A BIASED JUDGE, IS INTRINSICALLY A LAWLESS JUDGE." 
WILKERSON V. MCCARTHY, 336 U.S. 64, 65 (CONCURRING). 

FN11  ANY NOTION THAT THE PRACTICE OF DIRECTING VERDICTS OFFENDS THE
SEVENTH AMENDMENT WAS LAID TO REST IN GALLOWAY V. UNITED STATES, 319
U.S. 372. 

FN12  "THE CAUSE IS ONE OF A PECULIAR CLASS WHERE WE HAVE FREQUENTLY
BEEN OBLIGED TO GIVE SPECIAL CONSIDERATION TO THE FACTS IN ORDER TO
PROTECT INTERSTATE CARRIERS AGAINST UNWARRANTED JUDGMENTS AND ENFORCE
OBSERVANCE OF THE LIABILITY ACT AS HERE INTERPRETED."  ATCHISON,
T.&S.F.R. CO. V. SAXON, 284 U.S. 458, 459. 

(FOR OPINION OF MR. JUSTICE HARLAN, SEE POST, P. 559.) 

                                   APPENDIX A.

               DECISIONS RELATING TO SUFFICIENCY OF THE EVIDENCE

                      UNDER THE FELA, TERM BY TERM.* 

1911      1            1934      1 

1912      2           1935      1 

1913      4            1936      0 

1914      4            1937      0 

1915     19  1938      1 

1916      6            1939      1** 

1917      5            1940      2** 

1918      1            1941      1** 

1919      2            1942      3 

1920 1            1943      2 

1921      0            1944      2 

1922      0            1945      3** 

1923      3**       1946      4** 

1924      2            1947      4** 

1925      4            1948      6** 

1926      0    1949      2 

1927      6            1950      1 

1928      6**          1951      0 

1929      4            1952     1 

1930      1            1953      0 

1931      7          1954      2** 

1932      2            1955      3** 

1933      1            1956      4 

*THIS TABLE RESTRICTS ITSELF TO DECISIONS ON THE SUFFICIENCY OF THE
EVIDENCE RELATING TO THE SUBSTANTIVE CAUSE OF ACTION FOR SUBMISSION TO
THE JURY.  IT DOES NOT TAKE INTO ACCOUNT OTHER SUFFICIENCY-OF-THE
EVIDENCE CASES, E.G., WAS AN EMPLOYEE ENGAGED IN INTERSTATE COMMERCE,
THAT RAISE SOMEWHAT DIFFERENT PROBLEMS BUT ARE ALL TOO OFTEN ALSO
OUTSIDE THE APPROPRIATE BOUNDS OF CERTIORARI JURISDICTION. 

IN SOME OF THE CASES RESULTING IN AN AFFIRMANCE OF A JUDGMENT FOR AN
EMPLOYEE, SUFFICIENCY OF THE EVIDENCE WAS ONLY ONE OF THE QUESTIONS
CONSIDERED.  IT IS IMPOSSIBLE TO ASCERTAIN WHY CERTIORARI WAS GRANTED,
BUT THESE CASES ARE INCLUDED IN THE TABLE BECAUSE THE COURT DID NOT
RESTRICT ITS GRANT OF CERTIORARI TO THE OTHER ISSUES, AS IT FREQUENTLY
DOES, AND DID CONSIDER THE SUFFICIENCY-OF-THE-EVIDENCE QUESTION. 

**THESE FIGURES INCLUDE 1 SUMMARY PER CURIAM DISPOSITION ON THE
MERITS IN THE 1923 TERM, 1 IN THE 1928 TERM, 1 IN THE 1939 TERM, 1 IN
THE 1940 TERM, 1 IN THE 1941 TERM, 2 IN THE 1945 TERM, 1 IN THE 1946
TERM, 4 IN THE 1947 TERM, 2 IN THE 1948 TERM, 2 IN THE 1954 TERM, AND 3
IN THE 1955 TERM.  SEE 69 HARV. L. REV. 1441, 1446, N. 30.  THE REPORTS
HAVE NOT BEEN EXAMINED FOR SUMMARY DISPOSITIONS ON THE MERITS PRIOR TO
1938.  THAT PRACTICE DID NOT BECOME ESTABLISHED IN THESE CASES UNTIL
THEN, AND PRIOR TO THAT TIME WAS AT MOST DESULTORY. 
               APPENDIX B.

    DECISIONS RELATING TO SUFFICIENCY OF THE EVIDENCE

             UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 

                     (*INDICATES SUMMARY DISPOSITION PER CURIAM.) 
1911 TERM. 

TEXAS & P.R. CO. V. HOWELL, 224 U.S. 577; AFFIRMANCE OF JUDGMENT FOR
PLAINTIFF AFFIRMED.  1912 TERM. 

TROXELL V. DELAWARE, L.&W.R. CO., 227 U.S. 434; REVERSAL OF JUDGMENT
FOR PLAINTIFF REVERSED. 

NORFOLK & W.R. CO. V. EARNEST, 229 U.S. 114; JUDGMENT FOR PLAINTIFF
AFFIRMED.  1913 TERM. 

YOUNG V. CENTRAL R. CO. OF N.J., 232 U.S. 602; REMAND FOR ENTRY OF
JUDGMENT N.O.V. FOR DEFENDANT MODIFIED AND AFFIRMED. 

GRAND TRUNK WESTERN R. CO. V. LINDSAY, 233 U.S. 42; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

SOUTHERN R. CO. V. BENNETT, 233 U.S. 80; AFFIRMANCE OF JUDGMENT FOR
PLAINTIFF AFFIRMED. 

SOUTHERN R. CO. V. GADD, 233 U.S. 572; AFFIRMANCE OF JUDGMENT FOR
PLAINTIFF AFFIRMED.  1914 TERM. 

YAZOO & M.V.R. CO. V. WRIGHT, 235 U.S. 376; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED. 

MCGOVERN V. PHILADELPHIA & R.R. CO., 235 U.S. 389; DIRECTED VERDICT
FOR DEFENDANT REVERSED. 

SEABOARD AIR LINE R. CO. V. PADGETT, 236 U.S. 668; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

CENTRAL VERMONT R. CO. V. WHITE, 238 U.S. 507; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED.  1915 TERM. 

CHICAGO, R.I.&P.R. CO. V. DEVINE, 239 U.S. 52; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED. 

SEABOARD AIR LINE R. CO. V. KOENNECKE, 239 U.S. 352; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

REESE V. PHILADELPHIA & R.R. CO., 239 U.S. 463; AFFIRMANCE OF NONSUIT
AFFIRMED. 

CHICAGO, R.I.&P.R. CO. V. WRIGHT, 239 U.S. 548; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

KANAWHA & M.R. CO. V. KERSE, 239 U.S. 576; JUDGMENT FOR PLAINTIFF
AFFIRMED. 

SEABOARD AIR LINE R. CO. V. HORTON, 239 U.S. 595; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

ILLINOIS CENTRAL R. CO. V. SKAGGS, 240 U.S. 66; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

GREAT NORTHERN R. CO. V. WILES, 240 U.S. 444; REVERSAL OF JUDGMENT
N.O.V. FOR DEFENDANT REVERSED. 

GREAT NORTHERN R. CO. V. KNAPP, 240 U.S. 464; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED. 

JACOBS V. SOUTHERN R. CO., 241 U.S. 229; AFFIRMANCE OF JUDGMENT FOR
DEFENDANT AFFIRMED. 

BAUGHAM V. NEW YORK, P.&N.R. CO., 241 U.S. 237; AFFIRMANCE OF
JUDGMENT FOR DEFENDANT AFFIRMED. 

LOUISVILLE & N.R. CO. V. STEWART, 241 U.S. 261; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

SEABOARD AIR LINE R. CO. V. RENN, 241 U.S. 290; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

CHESAPEAKE & O.R. CO. V. DE ATLEY, 241 U.S. 310; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

SOUTHERN R. CO. V. GRAY, 241 U.S. 333; AFFIRMANCE OF JUDGMENT FOR
PLAINTIFF REVERSED. 

CHESAPEAKE & O.R. CO. V. PROFFITT, 241 U.S. 462; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

CHICAGO & N.W.R. CO. V. BOWER, 241 U.S. 470; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED. 

SAN ANTONIO & A.P.R. CO. V. WAGNER, 241 U.S. 476; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

SPOKANE & I.E.R. CO. V. CAMPBELL, 241 U.S. 497; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED.  1916 TERM. 

ATLANTIC CITY R. CO. V. PARKER, 242 U.S. 56; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED. 

BALTIMORE & O.R. CO. V. WHITACRE, 242 U.S. 169; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

ST. JOSEPH & G.I.R. CO. V. MOORE, 243 U.S. 311; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

NEW YORK CENTRAL & H.R.R. CO. V. TONSELLITO, 244 U.S. 360; AFFIRMANCE
OF JUDGMENT FOR PLAINTIFF AFFIRMED. 

SOUTHERN R. CO. V. PUCKETT, 244 U.S. 571; AFFIRMANCE OF JUDGMENT FOR
PLAINTIFF AFFIRMED. 

WASHINGTON R. & ELEC.  CO. V. SCALA, 244 U.S. 630; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED.  1917 TERM. 

BOLDT V. PENNSYLVANIA R. CO., 245 U.S. 441; AFFIRMANCE OF JUDGMENT
FOR DEFENDANT AFFIRMED. 

UNION PACIFIC R. CO. V. HUXOLL, 245 U.S. 535; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED. 

GREAT NORTHERN R. CO. V. DONALDSON, 246 U.S. 121; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

NELSON V. SOUTHERN R. CO., 246 U.S. 253; REVERSAL OF JUDGMENT FOR
PLAINTIFF AFFIRMED. 

UNION PACIFIC R. CO. V. HADLEY, 246 U.S. 330; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED.  1918 TERM. 

GILLIS V. NEW YORK, N.H.&H.R. CO., 249 U.S. 515; AFFIRMANCE OF
DIRECTED VERDICT FOR DEFENDANT AFFIRMED.  1919 TERM. 

CHICAGO, R.I.&P.R. CO. V. WARD, 252 U.S. 18; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED. 

BOEHMER V. PENNSYLVANIA R. CO., 252 U.S. 496; AFFIRMANCE OF DIRECTED
VERDICT FOR DEFENDANT AFFIRMED.  1920 TERM. 

SOUTHERN PACIFIC CO. V. BERKSHIRE, 254 U.S. 415; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED.  1923 TERM. 

FRESE V. CHICAGO, B.&Q.R. CO., 263 U.S. 1; REVERSAL OF JUDGMENT FOR
PLAINTIFF AFFIRMED. 

DAVIS V. WOLFE, 263 U.S. 239; AFFIRMANCE OF JUDGMENT FOR PLAINTIFF
AFFIRMED. 

DAVIS V. MATTHEWS, 263 U.S. 686;* AFFIRMANCE OF JUDGMENT FOR
PLAINTIFF AFFIRMED.  1924 TERM. 

DAVIS V. KENNEDY, 266 U.S. 147; AFFIRMANCE OF JUDGMENT FOR PLAINTIFF
REVERSED. 

BALTIMORE & O.R. CO. V. GROEGER, 266 U.S. 521; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF REVERSED FOR NEW TRIAL; EVIDENCE FOUND SUFFICIENT FOR
SUBMISSION TO JURY.  1925 TERM. 

MINNEAPOLIS, ST. P.&S.S.M.R. CO. V. GONEAU, 269 U.S. 406; AFFIRMANCE
OF JUDGMENT FOR PLAINTIFF AFFIRMED. 

CHESAPEAKE & O.R. CO. V. NIXON, 271 U.S. 218; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF REVERSED. 

ST. LOUIS-SAN FRANCISCO R. CO. V. MILLS, 271 U.S. 344; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

CHICAGO, M. & ST. P.R. CO. V. COOGAN, 271 U.S. 472; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED.  1927 TERM. 

ATLANTIC COAST LINE R. CO. V. SOUTHWELL, 275 U.S. 64; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

MISSOURI PACIFIC R. CO. V. AEBY, 275 U.S. 426; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF REVERSED. 

GULF, M.&N.R. CO. V. WELLS, 275 U.S. 455; AFFIRMANCE OF JUDGMENT FOR
PLAINTIFF REVERSED. 

TOLEDO, ST. L.&W.R. CO. V. ALLEN, 276 U.S. 165; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

KANSAS CITY SOUTHERN R. CO. V. JONES, 276 U.S. 303; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

CHESAPEAKE & O.R. CO. V. LEITCH, 276 U.S. 429; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF REVERSED.  1928 TERM. 

UNADILLA VALLEY R. CO. V. CALDINE, 278 U.S. 139; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

WESTERN & A.R. CO. V. HUGHES, 278 U.S. 496; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED. 

ATLANTIC COAST LINE R. CO. V. TYNER, 278 U.S. 565;* AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

DELAWARE, L.&W.R. CO. V. KOSKE, 279 U.S. 7; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF REVERSED. 

ATLANTIC COAST LINE R. CO. V. DAVIS, 279 U.S. 34; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

ATLANTIC COAST LINE R. CO. V. DRIGGERS, 279 U.S. 787; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED.  1929 TERM. 

CHESAPEAKE & O.R. CO. V. MIHAS, 280 U.S. 102; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF REVERSED. 

NEW YORK CENTRAL R. CO. V. AMBROSE, 280 U.S. 486; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

NEW YORK CENTRAL R. CO. V. MARCONE, 281 U.S. 345; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF AFFIRMED. 

ATCHISON, T.&S.F.R. CO. V. TOOPS, 281 U.S. 351; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED.  1930 TERM. 

ATLANTIC COAST LINE R. CO. V. POWE, 283 U.S. 401; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED.  1931 TERM. 

CHESAPEAKE & O.R. CO. V. KUHN, 284 U.S. 44; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF REVERSED. 

ATCHISON, T.&S.F.R. CO. V. SAXON, 284 U.S. 458; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

MISSOURI PACIFIC R. CO. V. DAVID, 284 U.S. 460; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

ATLANTIC COAST LINE R. CO. V. TEMPLE, 285 U.S. 143; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED. 

SOUTHERN R. CO. V. YOUNGBLOOD, 286 U.S. 313; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF REVERSED. 

SOUTHERN R. CO. V. DANTZLER, 286 U.S. 318; AFFIRMANCE OF JUDGMENT FOR
PLAINTIFF REVERSED. 

ST. LOUIS S.W.R. CO. V. SIMPSON, 286 U.S. 346; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF REVERSED.  1932 TERM. 

ROCCO V. LEHIGH VALLEY R. CO., 288 U.S. 275; REVERSAL OF JUDGMENT FOR
PLAINTIFF REVERSED. 

PENNSYLVANIA R. CO. V. CHAMBERLAIN, 288 U.S. 333; REVERSAL OF
DIRECTED VERDICT FOR DEFENDANT REVERSED. 

1933 TERM. 

NORTHWESTERN PACIFIC R. CO. V. BOBO, 290 U.S. 499; AFFIRMANCE OF
JUDGMENT FOR PLAINTIFF REVERSED.  1934 TERM. 

SWINSON V. CHICAGO, ST. P., M.&O.R. CO., 294 U.S. 529; DIRECTED
VERDICT FOR DEFENDANT REVERSED.  1935 TERM. 

CHICAGO G.W.R. CO. V. RAMBO, 298 U.S. 99; AFFIRMANCE OF JUDGMENT FOR
PLAINTIFF REVERSED.  1938 TERM. 

GREAT NORTHERN R. CO. V. LEONIDAS, 305 U.S. 1; AFFIRMANCE OF JUDGMENT
FOR PLAINTIFF AFFIRMED.  1939 TERM. 

KEYS V. PENNSYLVANIA R. CO., 308 U.S. 529;* REVERSAL OF JUDGMENT FOR
PLAINTIFF REVERSED.  1940 TERM. 

JENKINS V. KURN, 313 U.S. 256; REVERSAL OF JUDGMENT FOR PLAINTIFF
REVERSED. 

STEELEY V. KURN, 313 U.S. 545;* REVERSAL OF JUDGMENT FOR PLAINTIFF
REVERSED.  1941 TERM. 

SEAGO V. NEW YORK CENTRAL R. CO., 315 U.S. 781;* AFFIRMANCE OF
JUDGMENT FOR DEFENDANT REVERSED.  1942 TERM. 

TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54; AFFIRMANCE OF
DIRECTED VERDICT FOR DEFENDANT REVERSED. 

BAILEY V. CENTRAL VERMONT R. CO., 319 U.S. 350; REVERSAL OF JUDGMENT
FOR PLAINTIFF REVERSED. 

OWENS V. UNION PACIFIC R. CO., 319 U.S. 715; REVERSAL OF JUDGMENT FOR
PLAINTIFF REVERSED.  1943 TERM. 

BRADY V. SOUTHERN R. CO., 320 U.S. 476; REVERSAL OF JUDGMENT FOR
PLAINTIFF AFFIRMED. 

TENNANT V. PEORIA & P.U.R. CO., 321 U.S. 29; REVERSAL OF JUDGMENT FOR
PLAINTIFF REVERSED.  1944 TERM. 

TILLER V. ATLANTIC COAST LINE R. CO., 323 U.S. 574; REVERSAL OF
JUDGMENT FOR PLAINTIFF REVERSED. 

BLAIR V. BALTIMORE & O.R. CO., 323 U.S. 600; REVERSAL OF ENTRY OF
JUDGMENT FOR DEFENDANT REVERSED; SUFFICIENT EVIDENCE TO SUPPORT JURY
VERDICT FOR PLAINTIFF.  1945 TERM. 

KEETON V. THOMPSON, 326 U.S. 689;* REVERSAL OF JUDGMENT FOR PLAINTIFF
REVERSED. 

LAVENDER V. KURN, 327 U.S. 645; REVERSAL OF JUDGMENT FOR PLAINTIFF
REVERSED. 

COGSWELL V. CHICAGO & E.I.R. CO., 328 U.S. 820;* REVERSAL OF JUDGMENT
FOR PLAINTIFF REVERSED.  1946 TERM. 

JESIONOWSKI V. BOSTON & M.R. CO., 329 U.S. 452; REVERSAL OF JUDGMENT
FOR PLAINTIFF REVERSED. 

ELLIS V. UNION PACIFIC R. CO., 329 U.S. 649; REVERSAL OF JUDGMENT FOR
PLAINTIFF REVERSED. 

PAULY V. MCCARTHY, 330 U.S. 802;* REVERSAL OF JUDGMENT FOR PLAINTIFF
REVERSED. 

MYERS V. READING CO., 331 U.S. 477; AFFIRMANCE OF JUDGMENT N.O.V. FOR
DEFENDANT REVERSED.  1947 TERM. 

LILLIE V. THOMPSON, 332 U.S. 459;* AFFIRMANCE OF DISMISSAL OF
COMPLAINT REVERSED. 

HUNTER V. TEXAS ELECTRIC R. CO., 332 U.S. 827;* AFFIRMANCE OF
JUDGMENT FOR DEFENDANT AFFIRMED. 

ANDERSON V. ATCHISON, T.&S.F.R. CO., 333 U.S. 821;* AFFIRMANCE OF
JUDGMENT FOR DEFENDANT REVERSED. 

EUBANKS V. THOMPSON, 334 U.S. 854;* REVERSAL OF JUDGMENT FOR
PLAINTIFF REVERSED.  1948 TERM. 

ECKENRODE V. PENNSYLVANIA R. CO., 335 U.S. 329; AFFIRMANCE OF
JUDGMENT N.O.V. FOR DEFENDANT AFFIRMED. 

CORAY V. SOUTHERN PACIFIC CO., 335 U.S. 520; AFFIRMANCE OF DIRECTED
VERDICT FOR DEFENDANT REVERSED. 

PENN V. CHICAGO & N.W.R. CO., 335 U.S. 849;* REVERSAL OF JUDGMENT FOR
PLAINTIFF REVERSED. 

WILKERSON V. MCCARTHY, 336 U.S. 53; AFFIRMANCE OF DIRECTED VERDICT
FOR DEFENDANT REVERSED. 

REYNOLDS V. ATLANTIC COAST LINE R. CO., 336 U.S. 207;* AFFIRMANCE OF
JUDGMENT FOR DEFENDANT ON DEMURRER AFFIRMED. 

HILL V. ATLANTIC COAST LINE R. CO., 336 U.S. 911;* AFFIRMANCE OF
NONSUIT REVERSED.  1949 TERM. 

CARTER V. ATLANTA & ST. A.B.R. CO., 338 U.S. 430; AFFIRMANCE OF
JUDGMENT FOR DEFENDANT REVERSED. 

AFFOLDER V. NEW YORK, C. & ST. L.R. CO., 339 U.S. 96; REVERSAL OF
JUDGMENT FOR PLAINTIFF REVERSED.  1950 TERM. 

MOORE V. CHESAPEAKE & O.R. CO., 340 U.S. 573; AFFIRMANCE OF JUDGMENT
FOR DEFENDANT N.O.V. AFFIRMED.  1952 TERM. 

STONE V. NEW YORK, C. & ST. L.R. CO., 344 U.S. 407; REVERSAL OF
JUDGMENT FOR PLAINTIFF REVERSED.  1954 TERM. 

SMALLS V. ATLANTIC COAST LINE R. CO., 348 U.S. 946;* REVERSAL OF
JUDGMENT FOR PLAINTIFF REVERSED. 

O'NEILL V. BALTIMORE & O.R. CO., 348 U.S. 956;* REVERSAL OF JUDGMENT
FOR PLAINTIFF REVERSED.  1955 TERM. 

ANDERSON V. ATLANTIC COAST LINE R. CO., 350 U.S. 807;* REVERSAL OF
JUDGMENT FOR PLAINTIFF REVERSED. 

STRICKLAND V. SEABOARD AIR LINE R. CO., 350 U.S. 893;* REVERSAL OF
JUDGMENT FOR PLAINTIFF REVERSED. 

CAHILL V. NEW YORK, N.H.&H.R. CO., 350 U.S. 898,* 351 U.S. 183;
REVERSAL OF JUDGMENT FOR PLAINTIFF REVERSED. 

MR. JUSTICE HARLAN, CONCURRING IN NO. 46 AND DISSENTING IN NOS. 28,
42 AND 59.* 

*NOTE:  NO. 46 IS HERDMAN V. PENNSYLVANIA R. CO., ANTE, P. 518; NO.
28 IS ROGERS V. MISSOURI PACIFIC R. CO., ANTE, P. 500; NO. 42 IS WEBB
V. ILLINOIS CENTRAL R. CO., ANTE, P. 512; AND NO. 59 IS FERGUSON V.
MOORE-MCCORMACK LINES, ANTE, P. 521. 

                                        I. 

I AM IN FULL AGREEMENT WITH WHAT MY BROTHER FRANKFURTER HAS WRITTEN
IN CRITICISM OF THE COURT'S RECURRING WILLINGNESS TO GRANT CERTIORARI
IN CASES OF THIS TYPE.  FOR THE REASONS HE HAS GIVEN, I THINK THE COURT
SHOULD NOT HAVE HEARD ANY OF THESE FOUR CASES.  NEVERTHELESS, THE CASES
HAVING BEEN TAKEN, I HAVE CONCEIVED IT TO BE MY DUTY TO CONSIDER THEM
ON THEIR MERITS, BECAUSE I CANNOT RECONCILE VOTING TO DISMISS THE WRITS
AS "IMPROVIDENTLY GRANTED" WITH THE COURT'S "RULE OF FOUR."  IN MY
OPINION DUE ADHERENCE TO THAT RULE REQUIRES THAT ONCE CERTIORARI HAS
BEEN GRANTED A CASE SHOULD BE DISPOSED OF ON THE PREMISE THAT IT IS
PROPERLY HERE, IN THE ABSENCE OF CONSIDERATIONS APPEARING WHICH WERE
NOT MANIFEST OR FULLY APPREHENDED AT THE TIME CERTIORARI WAS GRANTED. 
IN THESE INSTANCES I AM UNABLE TO SAY THAT SUCH CONSIDERATIONS EXIST,
EVEN THOUGH I DO THINK THAT THE ARGUMENTS ON THE MERITS UNDERSCORED THE
VIEWS OF THOSE OF US WHO ORIGINALLY FELT THAT THE CASES SHOULD NOT BE
TAKEN BECAUSE THEY INVOLVED ONLY ISSUES OF FACT, AND PRESENTED NOTHING
OF SUFFICIENT GENERAL IMPORTANCE TO WARRANT THIS SUBSTANTIAL
EXPENDITURE OF THE COURT'S TIME.    I DO NOT THINK THAT, IN THE ABSENCE
OF THE CONSIDERATIONS MENTIONED, VOTING TO DISMISS A WRIT AFTER IT HAS
BEEN GRANTED CAN BE JUSTIFIED ON THE BASIS OF AN INHERENT RIGHT OF
DISSENT.  IN THE CASE OF A PETITION FOR CERTIORARI THAT RIGHT, IT SEEMS
TO ME - AGAIN WITHOUT THE PRESENCE OF INTERVENING FACTORS - IS
EXHAUSTED ONCE THE PETITION HAS BEEN GRANTED AND THE CAUSE SET FOR
ARGUMENT.  (FN1)  OTHERWISE THE "RULE OF FOUR" SURELY BECOMES A
MEANINGLESS THING IN MORE THAN ONE RESPECT.  FIRST, NOTWITHSTANDING THE
"RULE OF FOUR," FIVE OBJECTING JUSTICES COULD UNDO THE GRANT BY VOTING,
AFTER THE CASE HAS BEEN HEARD, TO DISMISS THE WRIT AS IMPROVIDENTLY
GRANTED - A COURSE WHICH WOULD HARDLY BE FAIR TO LITIGANTS WHO HAVE
EXPENDED TIME, EFFORT, AND MONEY ON THE ASSUMPTION THAT THEIR CASES
WOULD BE HEARD AND DECIDED ON THE MERITS.  WHILE IN THE NATURE OF
THINGS LITIGANTS MUST ASSUME THE RISK OF "IMPROVIDENTLY GRANTED"
DISMISSALS BECAUSE OF FACTORS NOT FULLY APPREHENDED WHEN THE PETITION
FOR CERTIORARI WAS UNDER CONSIDERATION, SHORT OF THAT IT SEEMS TO ME
THAT THE COURT WOULD STULTIFY ITS OWN RULE IF IT WERE PERMISSIBLE FOR A
WRIT OF CERTIORARI TO BE ANNULLED BY THE LATER VOTE OF FIVE OBJECTING
JUSTICES.  INDEED, IF THAT WERE PROPER, IT WOULD BE PREFERABLE TO HAVE
THE VOTE OF ANNULMENT COME INTO PLAY THE MOMENT AFTER THE PETITION FOR
CERTIORARI HAS BEEN GRANTED, SINCE THEN AT LEAST THE LITIGANTS WOULD BE
SPARED USELESS EFFORT IN BRIEFING AND PREPARING FOR THE ARGUMENT OF
THEIR CASES.  SECOND, PERMITTING THE GRANT OF A WRIT TO BE THUS UNDONE
WOULD UNDERMINE THE WHOLE PHILOSOPHY OF THE "RULE OF FOUR," WHICH IS
THAT ANY CASE WARRANTING CONSIDERATION IN THE OPINION OF SUCH A
SUBSTANTIAL MINORITY OF THE COURT WILL BE TAKEN AND DISPOSED OF.  IT
APPEARS TO ME THAT SUCH A PRACTICE WOULD ACCOMPLISH JUST THE CONTRARY
OF WHAT REPRESENTATIVES OF THIS COURT STATED TO CONGRESS AS TO THE
"RULE OF FOUR" AT THE TIME THE COURT'S CERTIORARI JURISDICTION WAS
ENLARGED BY THE JUDICIARY ACT OF 1925.  (FN2)  IN EFFECT THE "RULE OF
FOUR" WOULD, BY INDIRECTION, BECOME A "RULE OF FIVE."  THIRD, SUCH A
PRACTICE WOULD, IN MY OPINION, BE INCONSISTENT WITH THE LONG-STANDING
AND DESIRABLE CUSTOM OF NOT ANNOUNCING THE CONFERENCE VOTE ON PETITIONS
FOR CERTIORARI.  FOR IN THE ABSENCE OF THE INTERVENING CIRCUMSTANCES
WHICH MAY CAUSE A JUSTICE TO VOTE TO DISMISS A WRIT AS IMPROVIDENTLY
GRANTED, SUCH A DISPOSITION OF THE CASE ON HIS PART IS ALMOST BOUND TO
BE TAKEN AS REFLECTING HIS ORIGINAL CONFERENCE VOTE ON THE PETITION. 
AND IF SUCH A PRACTICE IS PERMISSIBLE, THEN BY THE SAME TOKEN I DO NOT
SEE HOW THOSE WHO VOTED IN FAVOR OF THE PETITION CAN REASONABLY BE
EXPECTED TO REFRAIN FROM ANNOUNCING THEIR CONFERENCE VOTES AT THE TIME
THE PETITION IS ACTED ON. 

MY BROTHER FRANKFURTER STATES THAT THE COURSE HE ADVOCATES WILL NOT
RESULT IN MAKING OF THE "RULE OF FOUR" AN EMPTY THING, SUGGESTING THAT
IN INDIVIDUAL CASES "A DOUBTING JUSTICE" WILL NORMALLY RESPECT "THE
JUDGMENT OF HIS BRETHREN THAT THE CASE DOES CONCERN ISSUES IMPORTANT
ENOUGH FOR THE COURT'S CONSIDERATION AND ADJUDICATION," AND THAT IT IS
ONLY "WHEN A CLASS OF CASES IS SYSTEMATICALLY TAKEN FOR REVIEW" THAT
SUCH A JUSTICE "CANNOT FOREGO HIS DUTY TO VOICE HIS DISSENT TO THE
COURT'S ACTION."  HOWEVER, IT SEEMS TO ME THAT IT IS PRECISELY IN THAT
TYPE OF SITUATION WHERE THE EXERCISE OF THE RIGHT OF DISSENT MAY WELL
RESULT IN NULLIFICATION OF THE "RULE OF FOUR" BY THE ACTION OF FIVE
JUSTICES.  FOR DIFFERENCES OF VIEW AS TO THE DESIRABILITY OF THE
COURT'S TAKING PARTICULAR "CLASSES" OF CASES - THE SITUATION WE HAVE
HERE - ARE PRONE TO LEAD TO MORE OR LESS DEFINITE LINES OF CLEAVAGE
AMONG THE JUSTICES, WHICH PAST EXPERIENCE HAS SHOWN MAY WELL INVOLVE AN
ALIGNMENT OF FOUR JUSTICES WHO FAVOR GRANTING CERTIORARI IN SUCH CASES
AND FIVE WHO DO NOT.  IF IN SUCH SITUATIONS IT BECOMES THE DUTY OF ONE
JUSTICE AMONG THE DISAGREEING FIVE NOT TO "FOREGO" HIS RIGHT TO
DISSENT, THEN I DO NOT SEE WHY IT IS NOT EQUALLY THE DUTY OF THE
REMAINING FOUR, RESULTING IN THE "RULE OF FOUR" BEING SET AT NAUGHT.  I
THUS SEE NO BASIS IN THE CIRCUMSTANCE THAT A CASE IS AN "INDIVIDUAL"
ONE RATHER THAN ONE OF A "CLASS" FOR DISTINCTIONS IN WHAT MAY BE DONE
BY AN INDIVIDUAL JUSTICE WHO DISAPPROVES OF THE COURT'S ACTION IN
GRANTING CERTIORARI. 

ALTHOUGH I FEEL STRONGLY THAT CASES OF THIS KIND DO NOT BELONG IN
THIS COURT, I CAN SEE NO OTHER COURSE, CONSISTENT WITH THE "RULE OF
FOUR," BUT TO CONTINUE OUR CONFERENCE DEBATES, WITH THE HOPE THAT
PERSUASION OR THE MOUNTING CALENDARS OF THE COURT WILL EVENTUALLY BRING
OUR DIFFERING BRETHREN TO ANOTHER POINT OF VIEW. 

II. 

SINCE I CAN FIND NO INTERVENING CIRCUMSTANCES WHICH WOULD JUSTIFY MY
VOTING NOW TO DISMISS THE WRITS IN THESE CASES AS IMPROVIDENTLY
GRANTED, I TURN TO THE MERITS OF THE FOUR CASES BEFORE US.  I AGREE
WITH, AND JOIN IN, THE COURT'S OPINION IN NO. 46.  I DISSENT IN NOS.
28, 42 AND 59.  NO DOUBT THE EVIDENCE IN THE LATTER THREE CASES CAN BE
VIEWED BOTH AS THE THREE COURTS BELOW DID AND AS THIS COURT DOES.  SO
FAR AS I CAN SEE ALL THIS COURT HAS DONE IS TO SUBSTITUTE ITS VIEWS ON
THE EVIDENCE FOR THOSE OF THE MISSOURI SUPREME COURT AND THE TWO COURTS
OF APPEALS, AND THAT IS MY FIRST REASON FOR DISSENTING.  IN MY VIEW WE
SHOULD NOT INTERFERE WITH THE DECISIONS OF THESE THREE COURTS IN THE
ABSENCE OF CLEAR LEGAL ERROR, OR SOME CAPRICIOUS OR UNREASONABLE ACTION
ON THEIR PART.  NOTHING OF THAT KIND HAS BEEN SHOWN HERE.  I WOULD
APPLY TO CASES OF THIS TYPE THE REASONING OF THE COURT IN LABOR BOARD
V. PITTSBURGH STEAMSHIP CO., 340 U.S. 498, 502-503, DEALING WITH REVIEW
OF DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD BY THE COURTS OF
APPEALS: 

"WERE WE CALLED UPON TO PASS ON THE BOARD'S CONCLUSIONS IN THE FIRST
INSTANCE OR TO MAKE AN INDEPENDENT REVIEW OF THE REVIEW BY THE COURT OF
APPEALS, WE MIGHT WELL SUPPORT THE BOARD'S CONCLUSION AND REJECT THAT
OF THE COURT BELOW.  BUT CONGRESS HAS CHARGED THE COURTS OF APPEALS AND
NOT THIS COURT WITH THAT NORMAL AND PRIMARY RESPONSIBILITY  ...  .  THE
SAME CONSIDERATIONS THAT SHOULD LEAD US TO LEAVE UNDISTURBED, BY
DENYING CERTIORARI, DECISIONS OF COURTS OF APPEALS INVOLVING SOLELY A
FAIR ASSESSMENT OF A RECORD ON THE ISSUE OF UNSUBSTANTIALITY, OUGHT TO
LEAD US TO DO NO MORE THAN DECIDE THAT THERE WAS SUCH A FAIR ASSESSMENT
WHEN THE CASE IS HERE  ...  . 

"THIS IS NOT THE PLACE TO REVIEW A CONFLICT OF EVIDENCE NOR TO
REVERSE A COURT OF APPEALS BECAUSE WERE WE IN ITS PLACE WE WOULD FIND
THE RECORD TILTING ONE WAY RATHER THAN THE OTHER, THOUGH FAIR-MINDED
JUDGES COULD FIND IT TILTING EITHER WAY." 

FOR MY PART, TO OVERTURN THE JUDGMENTS BELOW SIMPLY INVOLVES SECOND
GUESSING THE MISSOURI SUPREME COURT, THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT, AND THE COURT OF APPEALS FOR THE SECOND CIRCUIT, ON
QUESTIONS OF FACT ON WHICH THEY BROUGHT TO BEAR JUDGMENTS NEITHER
CAPRICIOUS NOR UNREASONABLE, AND ON WHICH THEY MADE A "FAIR ASSESSMENT
OF A RECORD." 

I DISSENT ALSO FOR ANOTHER REASON.  NO SCIENTIFIC OR PRECISE
YARDSTICK CAN BE DEVISED TO TEST THE SUFFICIENCY OF THE EVIDENCE IN A
NEGLIGENCE CASE.  THE PROBLEM HAS ALWAYS BEEN ONE OF JUDGMENT, TO BE
APPLIED IN VIEW OF THE PURPOSES OF THE STATUTE.  IT HAS, HOWEVER, BEEN
COMMON GROUND THAT A VERDICT MUST BE BASED ON EVIDENCE - NOT ON A
SCINTILLA OF EVIDENCE BUT EVIDENCE SUFFICIENT TO ENABLE A REASONING MAN
TO INFER BOTH NEGLIGENCE AND CAUSATION BY REASONING FROM THE EVIDENCE. 
MOORE V. CHESAPEAKE & O.R. CO., 340 U.S. 573.  AND IT HAS ALWAYS BEEN
THE FUNCTION OF THE COURT TO SEE TO IT THAT JURY VERDICTS STAY WITHIN
THAT BOUNDARY, THAT THEY BE ARRIVED AT BY REASON AND NOT BY WILL OR
SHEER SPECULATION.  NEITHER THE SEVENTH AMENDMENT NOR THE FEDERAL
EMPLOYERS' LIABILITY ACT LIFTED THAT DUTY FROM THE COURTS.  HOWEVER, IN
JUDGING THESE CASES, THE COURT APPEARS TO ME TO HAVE DEPARTED FROM
THESE LONG-ESTABLISHED STANDARDS, FOR, AS I READ THESE OPINIONS, THE
IMPLICATION SEEMS TO BE THAT THE QUESTION, AT LEAST AS TO THE ELEMENT
OF CAUSATION, IS NOT WHETHER THE EVIDENCE IS SUFFICIENT TO CONVINCE A
REASONING MAN, BUT WHETHER THERE IS ANY SCINTILLA OF EVIDENCE AT ALL TO
JUSTIFY THE JURY VERDICTS.  I CANNOT AGREE WITH SUCH A STANDARD, FOR I
CONSIDER IT A DEPARTURE FROM A WISE RULE OF LAW, NOT JUSTIFIED EITHER
BY THE PROVISION OF THE FELA MAKING EMPLOYERS LIABLE FOR INJURIES
RESULTING "IN WHOLE OR IN PART" FROM THEIR NEGLIGENCE, OR BY ANTHING
ELSE IN THE ACT OR ITS HISTORY, WHICH EVINCES NO PURPOSE TO DEPART IN
THESE RESPECTS FROM COMMON-LAW RULES. 

FOR THESE REASONS I THINK THE JUDGMENTS IN NOS. 28, 42 AND 59, AS
WELL AS THAT IN NO. 46, SHOULD BE AFFIRMED. 

FN1  IN SOME INSTANCES WHERE THE COURT HAS GRANTED CERTIORARI AND
SIMULTANEOUSLY SUMMARILY DISPOSED OF THE CASE ON THE MERITS, INDIVIDUAL
JUSTICES (INCLUDING THE WRITER) HAVE MERELY NOTED THEIR DISSENT TO THE
GRANT WITHOUT REACHING THE MERITS.  SEE, E.G., ANDERSON V. ATLANTIC
COAST LINE R. CO., 350 U.S. 807; CAHILL V. NEW YORK, N.H.&H.R. CO., 350
U.S. 898.  EVEN HERE, I AM BOUND TO SAY, IT WOULD PROBABLY BE BETTER
PRACTICE FOR A JUSTICE, WHO HAS UNSUCCESSFULLY OPPOSED CERTIORARI, TO
FACE THE MERITS, AND TO DISSENT FROM THE SUMMARY DISPOSITION RATHER
THAN FROM THE GRANT OF CERTIORARI IF HE IS NOT PREPARED TO REACH THE
MERITS WITHOUT FULL-DRESS ARGUMENT. 

FN2  SEE BURTON, JUDGING IS ALSO ADMINISTRATION, 21 TEMPLE LAW
QUARTERLY 77, 84-85, AND N. 23 (1947). 

MR. JUSTICE BURTON CONCURS IN PART I OF THIS OPINION. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR.
JUSTICE CLARK, AND MR. JUSTICE BRENNAN CONCUR IN PART I OF THIS OPINION
EXCEPT INSOFAR AS IT DISAPPROVES OF THE GRANT OF THE WRIT OF CERTIORARI
IN THESE CASES. 
..END :




RAYONIER, INC. V. UNITED STATES 352 U.S. 315 


NO. 45.  ARGUED DECEMBER 4, 1956 - DECIDED JANUARY 28, 1957 - 225 F.2D
642, 650, JUDGMENTS VACATED AND CAUSES REMANDED. 


UNDER THE FEDERAL TORT CLAIMS ACT, THE UNITED STATES IS NOT IMMUNE
FROM LIABILITY FOR NEGLIGENCE OF EMPLOYEES OF THE FOREST SERVICE IN
FIGHTING A FIRE, IF IN SIMILAR CIRCUMSTANCES A PRIVATE PERSON WOULD BE
LIABLE UNDER THE LAWS OF THE STATE IN WHICH THE FIRE OCCURRED.  PP. 315
321. 

RAYONIER INCORPORATED V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT.* 

*TOGETHER WITH NO. 47, ARNHOLD ET AL. V. UNITED STATES, ALSO ON
CERTIORARI TO THE SAME COURT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN BOTH OF THESE CASES PETITIONERS BROUGHT SUIT IN THE UNITED STATES
DISTRICT COURT IN THE STATE OF WASHINGTON SEEKING TO RECOVER DAMAGES
UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SECS. 1346(B) AND 2671
2680, FOR LOSSES WHICH THEY ALLEGE WERE CAUSED BY THE NEGLIGENCE OF
EMPLOYEES OF THE UNITED STATES IN ALLOWING A FOREST FIRE TO BE STARTED
ON GOVERNMENT LAND AND IN FAILING TO ACT WITH DUE CARE TO PUT THIS FIRE
OUT.  THE COMPLAINTS IN THE TWO CASES ARE SUBSTANTIALLY THE SAME AND IN
SUMMARY MAKE THE FOLLOWING ALLEGATIONS.  THE UNITED STATES OWNED
CERTAIN LAND IN THE STATE OF WASHINGTON.  IT PERMITTED A RAILROAD TO
RUN TRAINS OVER A RIGHT OF WAY PASSING THROUGH THIS LAND.  ON AUGUST 6,
1951, SPARKS FROM A RAILROAD ENGINE IGNITED SIX FIRES ON THE RIGHT OF
WAY AND ADJOINING LAND.  THESE FIRES STARTED IN AREAS WHERE HIGHLY
INFLAMMABLE DRY GRASSES, BRUSH, AND OTHER MATERIALS HAD BEEN
NEGLIGENTLY ALLOWED TO ACCUMULATE BY THE GOVERNMENT.  SHORTLY AFTER THE
FIRES STARTED UNITED STATES FOREST SERVICE PERSONNEL APPEARED AND TOOK
EXCLUSIVE DIRECTION AND CONTROL OF ALL FIRE SUPPRESSION ACTIVITIES. 
THE FOREST SERVICE HAD ENTERED INTO AN AGREEMENT WITH THE STATE OF
WASHINGTON TO PROTECT AGAINST AND TO SUPPRESS ANY FIRES IN AN AREA
WHICH INCLUDED THE PUBLIC LANDS WHERE THESE FIRES STARTED AND THE
PETITIONERS' LANDS.  PETITIONERS WERE AWARE OF THIS CONTRACT AND RELIED
ON THE FOREST SERVICE TO CONTROL AND PUT OUT THE FIRES INVOLVED IN THIS
CASE.  BUT AS A RESULT OF THE FOREST SERVICE'S IMPROPER FIREFIGHTING
THESE FIRES SPREAD UNTIL THEY BECAME A SINGLE FIRE COVERING 1,600
ACRES.  BY AUGUST 11, HOWEVER, THIS BLAZE WAS UNDER CONTROL AND WAS
SUBSTANTIALLY OUT EXCEPT FOR CERTAIN SPOTS THAT CONTINUED TO BURN AND
SMOLDER UNTIL SEPTEMBER 20.  DURING THE PERIOD BETWEEN AUGUST 11 AND
SEPTEMBER 20 THERE WERE MEN, EQUIPMENT AND A PLENTIFUL SUPPLY OF WATER
AVAILABLE TO THE FOREST SERVICE AND IF THESE RESOURCES HAD BEEN
PROPERLY UTILIZED THE FIRE COULD HAVE BEEN COMPLETELY EXTINGUISHED. 
FOR SEVERAL DAYS IMMEDIATELY PRECEDING SEPTEMBER 20 THERE WAS
DECREASING HUMIDITY ACCOMPANIED BY STRONG WINDS.  BUT THE FOREST
SERVICE KEPT ONLY A FEW MEN GUARDING THE FIRE DESPITE THE FACT THAT IT
WAS SMOLDERING CLOSE TO A TINDER-DRY ACCUMULATION OF DEBRIS, DOWN LOGS
AND DEAD UNDERGROWTH.  ON SEPTEMBER 20 THE WINDS BLEW SPARKS FROM THE
SMOLDERING EMBERS INTO THESE INFLAMMABLE MATERIALS AND THE FIRE
EXPLODED SPREADING AS MUCH AS TWENTY MILES IN ONE DIRECTION.  AS IT
FANNED OUT IT DESTROYED TIMBER, BUILDINGS AND OTHER PROPERTY SOME OF
WHICH BELONGED TO THE PETITIONERS. 

THE COMPLAINTS ALLEGE THAT THESE CONSEQUENCES WERE CAUSED BY THE
FOREST SERVICE'S NEGLIGENCE (1) IN PERMITTING INFLAMMABLE MATERIALS TO
ACCUMULATE ON GOVERNMENT LAND THEREBY ALLOWING THE FIRES TO START AND
TO SPREAD; (2) IN NOT PREVENTING THE RAILROAD FROM STARTING THE
ORIGINAL SPOT FIRES; (3) IN NOT PROPERLY SUPPRESSING THE SPOT FIRES;
AND (4) IN FAILING TO QUENCH AND PREVENT THE SPREAD OF THE FIRE WHEN IT
WAS UNDER CONTROL IN THE 1,600 ACRE AREA.  THE DISTRICT JUDGE DISMISSED
THE COMPLAINTS HOLDING THAT THEY FAILED TO STATE A CLAIM UPON WHICH
RELIEF COULD BE GRANTED.  HE INDICATED THAT THE FACTS ALLEGED WERE
SUFFICIENT TO SHOW ACTIONABLE NEGLIGENCE ON THE PART OF A PRIVATE
PERSON UNDER THE LAWS OF WASHINGTON, BUT NEVERTHELESS FELT COMPELLED TO
DISMISS THE COMPLAINTS BECAUSE OF THE FOLLOWING STATEMENTS BY THIS
COURT IN DALEHITE V. UNITED STATES, 346 U.S. 15, 43. 

"AS TO THE ALLEGED FAILURE IN FIGHTING THE FIRE, WE THINK THIS TOO
WITHOUT THE TORT CLAIMS ACT.  THE ACT DID NOT CREATE NEW CAUSES OF
ACTION WHERE NONE EXISTED BEFORE  ...  .  'ITS EFFECT IS TO WAIVE
IMMUNITY FROM RECOGNIZED CAUSES OF ACTION AND WAS NOT TO VISIT THE
GOVERNMENT WITH NOVEL AND UNPRECEDENTED LIABILITIES.'  ...  IT DID NOT
CHANGE THE NORMAL RULE THAT AN ALLEGED FAILURE OR CARELESSNESS OF
PUBLIC FIREMEN DOES NOT CREATE PRIVATE ACTIONABLE RIGHTS." 

THE COURT OF APPEALS AFFIRMED THE TRIAL JUDGE'S DISPOSAL OF THE
COMPLAINTS.  225 F.2D 642 AND 225 F.2D 650.  IN AGREEING THAT THE
UNITED STATES COULD NOT BE SUED FOR ANY CARELESSNESS BY THE FOREST
SERVICE IN FIGHTING THE FIRE, IT ALSO RELIED EXCLUSIVELY ON THE
DALEHITE CASE.  IT REJECTED PETITIONERS' OTHER CLAIMS OF NEGLIGENCE ON
THE GROUND THAT WASHINGTON LAW WOULD IMPOSE NO LIABILITY FOR THE
MISCONDUCT ALLEGED.  WE HOLD THAT THE COURTS BELOW ERRED IN DECIDING
THAT THE UNITED STATES WAS IMMUNE FROM LIABILITY FOR ANY NEGLIGENCE BY
THE FOREST SERVICE IN FIGHTING THE FIRE. 

THE TORT CLAIMS ACT MAKES THE UNITED STATES LIABLE (WITH CERTAIN
EXCEPTIONS WHICH ARE NOT RELEVANT HERE) FOR THE NEGLIGENCE OF ITS
EMPLOYEES: 

"  ...  IN THE SAME MANNER AND TO THE SAME EXTENT AS A PRIVATE
INDIVIDUAL UNDER LIKE CIRCUMSTANCES  ...  ."  28 U.S.C. SEC. 2674. 

IT GIVES THE DISTRICT COURTS JURISDICTION OF ALL CLAIMS AGAINST THE
GOVERNMENT FOR LOSSES: 

"  ...  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."  28 U.S.C. SEC.
1346(B). 

THESE PROVISIONS, GIVEN THEIR PLAIN NATURAL MEANING, MAKE THE UNITED
STATES LIABLE TO PETITIONERS FOR THE FOREST SERVICE'S NEGLIGENCE IN
FIGHTING THE FOREST FIRE IF, AS ALLEGED IN THE COMPLAINTS, WASHINGTON
LAW WOULD IMPOSE LIABILITY ON PRIVATE PERSONS OR CORPORATIONS UNDER
SIMILAR CIRCUMSTANCES. 

NEVERTHELESS THE GOVERNMENT, RELYING PRIMARILY ON THE DALEHITE CASE,
CONTENDS THAT CONGRESS BY THE TORT CLAIMS ACT DID NOT WAIVE THE UNITED
STATES' IMMUNITY FROM LIABILITY FOR THE NEGLIGENCE OF ITS EMPLOYEES
WHEN THEY ACT AS PUBLIC FIREMEN.  IT ARGUES THAT THE ACT ONLY IMPOSES
LIABILITY ON THE UNITED STATES UNDER CIRCUMSTANCES WHERE GOVERNMENTAL
BODIES HAVE TRADITIONALLY BEEN RESPONSIBLE FOR THE MISCONDUCT OF THEIR
EMPLOYEES AND THAT NEITHER THE COMMON LAW NOR THE LAW OF WASHINGTON
IMPOSES LIABILITY ON MUNICIPAL OR OTHER LOCAL GOVERNMENTS FOR THE
NEGLIGENCE OF THEIR AGENTS ACTING IN THE "UNIQUELY GOVERNMENTAL"
CAPACITY OF PUBLIC FIREMEN.  BUT AS WE RECENTLY HELD IN INDIAN TOWING
CO. V. UNITED STATES, 350 U.S. 61, THE TEST ESTABLISHED BY THE TORT
CLAIMS ACT FOR DETERMINING THE UNITED STATES' LIABILITY IS WHETHER A
PRIVATE PERSON WOULD BE RESPONSIBLE FOR SIMILAR NEGLIGENCE UNDER THE
LAWS OF THE STATE WHERE THE ACTS OCCURRED.  WE EXPRESSLY DECIDED IN
INDIAN TOWING THAT THE UNITED STATES' LIABILITY IS NOT RESTRICTED TO
THE LIABILITY OF A MUNICIPAL CORPORATION OR OTHER PUBLIC BODY AND THAT
AN INJURED PARTY CANNOT BE DEPRIVED OF HIS RIGHTS UNDER THE ACT BY
RESORT TO AN ALLEGED DISTINCTION, IMPORTED FROM THE LAW OF MUNICIPAL
CORPORATIONS, BETWEEN THE GOVERNMENT'S NEGLIGENCE WHEN IT ACTS IN A
"PROPRIETARY" CAPACITY AND ITS NEGLIGENCE WHEN IT ACTS IN A "UNIQUELY
GOVERNMENTAL" CAPACITY.  (FN1)  TO THE EXTENT THAT THERE WAS ANYTHING
TO THE CONTRARY IN THE DALEHITE CASE IT WAS NECESSARILY REJECTED BY
INDIAN TOWING.  (FN2) 

IT MAY BE THAT IT IS "NOVEL AND UNPRECEDENTED" TO HOLD THE UNITED
STATES ACCOUNTABLE FOR THE NEGLIGENCE OF ITS FIREFIGHTERS, BUT THE VERY
PURPOSE OF THE TORT CLAIMS ACT WAS TO WAIVE THE GOVERNMENT'S
TRADITIONAL ALL-ENCOMPASSING IMMUNITY FROM TORT ACTIONS AND TO
ESTABLISH NOVEL AND UNPRECEDENTED GOVERNMENTAL LIABILITY.  THE
GOVERNMENT WARNS THAT IF IT IS HELD RESPONSIBLE FOR THE NEGLIGENCE OF
FOREST SERVICE FIREMEN A HEAVY BURDEN MAY BE IMPOSED ON THE PUBLIC
TREASURY.  IT POINTS OUT THE POSSIBILITY THAT A FIRE MAY DESTROY
HUNDREDS OF SQUARE MILES OF FORESTS AND EVEN BURN ENTIRE COMMUNITIES. 
BUT AFTER LONG CONSIDERATION, CONGRESS, BELIEVING IT TO BE IN THE BEST
INTEREST OF THE NATION, SAW FIT TO IMPOSE SUCH LIABILITY ON THE UNITED
STATES IN THE TORT CLAIMS ACT.  CONGRESS WAS AWARE THAT WHEN LOSSES
CAUSED BY SUCH NEGLIGENCE ARE CHARGED AGAINST THE PUBLIC TREASURY THEY
ARE IN EFFECT SPREAD AMONG ALL THOSE WHO CONTRIBUTE FINANCIALLY TO THE
SUPPORT OF THE GOVERNMENT AND THE RESULTING BURDEN ON EACH TAXPAYER IS
RELATIVELY SLIGHT.  BUT WHEN THE ENTIRE BURDEN FALLS ON THE INJURED
PARTY IT MAY LEAVE HIM DESTITUTE OR GRIEVOUSLY HARMED.  CONGRESS COULD,
AND APPARENTLY DID, DECIDE THAT THIS WOULD BE UNFAIR WHEN THE PUBLIC AS
A WHOLE BENEFITS FROM THE SERVICES PERFORMED BY GOVERNMENT EMPLOYEES. 
AND FOR OBVIOUS REASONS THE UNITED STATES CANNOT BE EQUATED WITH A
MUNICIPALITY, WHICH CONCEIVABLY MIGHT BE RENDERED BANKRUPT IF IT WERE
SUBJECT TO LIABILITY FOR THE NEGLIGENCE OF ITS FIREMEN.  THERE IS NO
JUSTIFICATION FOR THIS COURT TO READ EXEMPTIONS INTO THE ACT BEYOND
THOSE PROVIDED BY CONGRESS.  (FN3)  IF THE ACT IS TO BE ALTERED THAT IS
A FUNCTION FOR THE SAME BODY THAT ADOPTED IT. 

THE RECORD SHOWS THAT THE TRIAL JUDGE DISMISSED BOTH COMPLAINTS IN
THEIR ENTIRETY SOLELY ON THE BASIS OF THE DALEHITE CASE.  WHILE THE
COURT OF APPEALS RELIED ON STATE LAW TO UPHOLD THE DISMISSAL OF THOSE
ALLEGATIONS IN THE COMPLAINTS WHICH CHARGED NEGLIGENCE FOR REASONS
OTHER THAN THE FOREST SERVICE'S CARELESSNESS IN CONTROLLING THE FIRE,
WE CANNOT SAY THAT COURT'S INTERPRETATION OF WASHINGTON LAW WAS WHOLLY
FREE FROM ITS ERRONEOUS ACCEPTANCE OF THE STATEMENTS IN DALEHITE ABOUT
PUBLIC FIREMEN.  FURTHERMORE IT HAS BEEN STRONGLY CONTENDED HERE THAT
THE COURT OF APPEALS IMPROPERLY INTERPRETED CERTAIN ALLEGATIONS IN THE
COMPLAINTS AND AS A RESULT OF SUCH MISINTERPRETATION INCORRECTLY
APPLIED WASHINGTON LAW IN PASSING ON THE SUFFICIENCY OF THESE
ALLEGATIONS.  IN VIEW OF THE CIRCUMSTANCES, WE THINK IT PROPER TO
VACATE BOTH JUDGMENTS IN THEIR ENTIRETY SO THAT THE DISTRICT COURT MAY
CONSIDER THE COMPLAINTS ANEW, IN THEIR PRESENT FORM OR AS THEY MAY BE
AMENDED, WHOLLY FREE TO DETERMINE THEIR SUFFICIENCY ON THE BASIS OF
WHETHER THE ALLEGATIONS AND ANY SUPPORTING MATERIAL OFFERED TO EXPLAIN
OR CLARIFY THEM WOULD BE SUFFICIENT TO IMPOSE LIABILITY ON A PRIVATE
PERSON UNDER THE LAWS OF THE STATE OF WASHINGTON.  (FN4)  THE JUDGMENTS
OF BOTH COURTS ARE VACATED AND THE CASES ARE REMANDED TO THE DISTRICT
COURT FOR CONSIDERATION IN ACCORDANCE WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  AND SEE UNITED STATES V. YELLOW CAB CO., 340 U.S. 543, 548-550. 

FN2 SEE ALSO EASTERN AIR LINES V. UNION TRUST CO., 95 U.S. APP. D.C.
189, 221 F.2D 62, AFF'D PER CURIAM SUB NOM. UNITED STATES V. UNION
TRUST CO., 350 U.S. 907; AIR TRANSPORT ASSOCIATES V. UNITED STATES, 221
F.2D 467.  CF. UNITED STATES V. PRAYLOU, 208 F.2D 291, 294-295. 

FN3  SEE UNITED STATES V. AETNA CASUALTY & SURETY CO., 338 U.S. 366,
383. 

FN4  CF. MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551, 555; STATE TAX
COMMISSION V. VAN COTT, 306 U.S. 511, 514-515; AND PATTERSON V.
ALABAMA, 294 U.S. 600, 607. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE CLARK JOINS, DISSENTING. 

THE COURT OF APPEALS IN MY VIEW CORRECTLY APPLIED THE LAW AS TO
PUBLIC FIRE FIGHTERS.  CONGRESS ASSUMED LIABILITY "AS A PRIVATE
INDIVIDUAL UNDER LIKE CIRCUMSTANCES."  THE IMMUNITY OF PUBLIC BODIES
FOR INJURIES DUE TO FIGHTING FIRE WAS THEN WELL SETTLED.  DALEHITE V.
UNITED STATES, 346 U.S. 15, 43.  PRIVATE ORGANIZATIONS, EXCEPT AS
COMMUNITY VOLUNTEERS, FOR FIRE FIGHTING WERE HARDLY KNOWN.  THE
SITUATION WAS LIKE PRIVATE MILITARY FORCES.  CF. FERES V. UNITED
STATES, 340 U.S. 135, 142.  INDIAN TOWING CO. V. UNITED STATES, 350
U.S. 61, PRESENTS A DIFFERENT SITUATION. 
..END :















NATIONAL LABOR RELATIONS BOARD V. LION OIL CO. 352 U.S. 282 


NO. 4.  ARGUED OCTOBER 8, 1956 - DECIDED JANUARY 22, 1957 - 221 F.2D
231, REVERSED AND REMANDED. 


PROVIDES THAT A PARTY WHO DESIRES TO MODIFY OR TERMINATE A COLLECTIVE
BARGAINING CONTRACT MUST CONTINUE "IN FULL FORCE AND EFFECT, WITHOUT
RESORTING TO STRIKE OR LOCK-OUT, ALL THE TERMS AND CONDITIONS OF THE
EXISTING CONTRACT FOR A PERIOD OF SIXTY DAYS AFTER  ...  NOTICE IS
GIVEN OR UNTIL THE EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS
LATER."  UNDER A COLLECTIVE BARGAINING CONTRACT BETWEEN AN EMPLOYER AND
A LABOR UNION, THE EARLIEST DATE UPON WHICH THE CONTRACT WAS SUBJECT TO
AMENDMENT WAS OCTOBER 23, 1951, AND THE CONTRACT BECAME TERMINABLE
AFTER THAT DATE UPON FURTHER NOTICE BY EITHER PARTY.  THE UNION GAVE
NOTICE OF PROPOSED AMENDMENTS 60 DAYS IN ADVANCE OF OCTOBER 23, AND A
STRIKE OCCURRED LONG AFTER THAT DATE, THOUGH WITHOUT FURTHER NOTICE OF
TERMINATION OF THE CONTRACT.  HELD: 

1.  THE NOTICE AND WAITING REQUIREMENTS OF SEC. 8(D) WERE FULLY
STATISFIED; THE STRIKE DID NOT VIOLATE SEC. 8(D)(4); AND THE STRIKERS
DID NOT LOSE THEIR STATUS AS EMPLOYEES ENTITLED TO THE PROTECTION OF
THE ACT.  PP. 283-294. 

(A)  IN EXPOUNDING A STATUTE, COURTS MUST NOT BE GUIDED BY A SINGLE
SENTENCE OR MEMBER OF A SENTENCE, BUT MUST LOOK TO THE PROVISIONS OF
THE WHOLE LAW, AND TO ITS OBJECT AND POLICY.  P. 288. 

(B)  A CONSTRUCTION OF A STATUTE THAT WOULD PRODUCE INCONGRUOUS
RESULTS IS TO BE AVOIDED.  P. 288. 

(C)  THE SUBSTITUTION OF COLLECTIVE BARGAINING FOR ECONOMIC WARFARE,
AND THE PROTECTION OF THE RIGHT OF EMPLOYEES TO ENGAGE IN CONCERTED
ACTIVITIES FOR THEIR OWN BENEFIT, WERE DUAL PURPOSES OF THE TAFT
HARTLEY ACT; AND A CONSTRUCTION WHICH SERVES NEITHER OF THESE AIMS IS
TO BE AVOIDED.  MASTRO PLASTICS CORP. V. LABOR BOARD, 350 U.S. 270,
284.  P. 289. 

(D) "EXPIRATION DATE" IN SEC. 8(D)(1) OF THE ACT RELATES TO THE DATE
WHEN A CONTRACT IS SUBJECT TO MODIFICATION AS WELL AS THE DATE WHEN IT
WOULD COME TO AN END; AND THE SAME PHRASE IN SEC. 8(D)(4) MUST CARRY
THE SAME MEANING.  PP. 289-290. 

(E)  THIS CONSTRUCTION GIVES MEANING TO THE CONGRESSIONAL LANGUAGE
WHICH ACCORDS WITH THE GENERAL PURPOSE OF THE ACT.  PP. 290-292. 

(F)  THE FACT THAT ON OCTOBER 23 THE CONTRACT BECAME TERMINABLE UPON
FURTHER NOTICE BY EITHER PARTY IS IMMATERIAL.  THE STATUTORY NOTICE
REQUIREMENT OPERATES WHOLLY INDEPENDENTLY OF WHATEVER NOTICE
REQUIREMENT THE PARTIES HAVE FIXED FOR THEMSELVES.  P. 292. 

2.  THE STRIKE WAS NOT IN BREACH OF THE CONTRACT AND THE STRIKERS
WERE NOT DISENTITLED TO RELIEF IN PROCEEDINGS BEFORE THE LABOR BOARD. 
LABOR BOARD V. SANDS MFG. CO., 306 U.S. 332, DISTINGUISHED.  PP. 293
294. 

(A)  WHERE THERE HAS BEEN NO EXPRESS WAIVER OF THE RIGHT TO STRIKE, A
WAIVER OF THE RIGHT DURING SUCH A PERIOD IS NOT TO BE INFERRED.  P.
293. 

(B)  THE TWO-PHASE PROVISION FOR TERMINATING THE CONTRACT HERE
INVOLVED DOES NOT MEAN THAT IT WAS NOT WITHIN THE CONTEMPLATION OF THE
PARTIES THAT ECONOMIC WEAPONS MIGHT BE USED TO SUPPORT DEMANDS FOR
MODIFICATION BEFORE THE NOTICE TO TERMINATE WAS GIVEN.  P. 293. 

NATIONAL LABOR RELATIONS BOARD V. LION OIL CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CALLED UPON AGAIN TO INTERPRET SEC. 8(D) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED.  (FN1)  SEE MASTRO PLASTICS
CORP. V. LABOR BOARD, 350 U.S. 270.  IN PARTICULAR WE ARE CONCERNED
WITH SEC. 8(D)(4), WHICH PROVIDES THAT A PARTY WHO WISHES TO MODIFY OR
TERMINATE A COLLECTIVE BARGAINING CONTRACT MUST CONTINUE "IN FULL FORCE
AND EFFECT, WITHOUT RESORTING TO STRIKE OR LOCKOUT, ALL THE TERMS AND
CONDITIONS OF THE EXISTING CONTRACT FOR A PERIOD OF SIXTY DAYS AFTER
... NOTICE OF HIS WISH TO MODIFY OR TERMINATE IS GIVEN OR UNTIL THE
EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS LATER."  SINCE SEC.
8(D) DEFINES THE DUTY TO BARGAIN COLLECTIVELY, A VIOLATION OF SEC.
8(D)(4) CONSTITUTES A REFUSAL TO BARGAIN, AN UNFAIR LABOR PRACTICE FOR
EMPLOYERS, SEC. 8(A)(5), AND UNIONS, SEC. 8(B)(3).  THE LAST SENTENCE
OF SEC. 8(D) CONTAINS AN ADDITIONAL SANCTION: AN EMPLOYEE WHO STRIKES
WITHIN THE SPECIFIED 60-DAY PERIOD LOSES HIS STATUS AS AN EMPLOYEE FOR
THE PURPOSES OF SECS. 8, 9 AND 10 OF THE ACT.  THE SOLE QUESTION
PRESENTED BY THE PETITION FOR CERTIORARI IS: 

WHETHER THE REQUIREMENT OF THIS SECTION IS SATISFIED WHERE A CONTRACT
PROVIDES FOR NEGOTIATION AND ADOPTION OF MODIFICATIONS AT AN
INTERMEDIATE DATE DURING ITS TERM, AND A STRIKE IN SUPPORT OF
MODIFICATION DEMANDS OCCURS AFTER THE DATE ON WHICH SUCH MODIFICATIONS
MAY BECOME EFFECTIVE - AND AFTER THE 60-DAY NOTICE PERIOD HAS ELAPSED -
BUT PRIOR TO THE TERMINAL DATE OF THE CONTRACT. 

WE ARE TOLD BY THE SOLICITOR GENERAL THAT THE QUESTION IS OF MAJOR
IMPORTANCE IN THE NEGOTIATION AND ADMINISTRATION OF HUNDREDS OF
COLLECTIVE BARGAINING AGREEMENTS THROUGHOUT THE COUNTRY; THAT THERE IS
A DECIDED TREND AMONG UNIONS AND EMPLOYERS TO EXECUTE CONTRACTS OF
LONGER DURATION THAN FORMERLY AND TO INCLUDE PROVISIONS FOR REOPENING
TO NEGOTIATE CHANGES DURING THE CONTRACT TERM.  (FN2)  BECAUSE OF THE
IMPORTANCE OF THE QUESTION, WE GRANTED CERTIORARI, 350 U.S. 986, TO
REVIEW A DECISION OF THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT TO THE
EFFECT THAT SEC. 8(D)(4) BANS STRIKES TO OBTAIN MODIFICATIONS OF A
CONTRACT UNTIL THE CONTRACT BY ITS TERMS OR BY THE ACTION OF THE
PARTIES HAS TERMINATED. 

ON OCTOBER 23, 1950, RESPONDENT LION OIL CO. AND THE OIL WORKERS
INTERNATIONAL UNION, CIO, ENTERED INTO A CONTRACT WHICH PROVIDED: 

"THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT FOR THE PERIOD
BEGINNING OCTOBER 23, 1950, AND ENDING OCTOBER 23, 1951, AND THEREAFTER
UNTIL CANCELED IN THE MANNER HEREINAFTER IN THIS ARTICLE PROVIDED. 

"THIS AGREEMENT MAY BE CANCELED AND TERMINATED BY THE COMPANY OR THE
UNION AS OF A DATE SUBSEQUENT TO OCTOBER 23, 1951, BY COMPLIANCE WITH
THE FOLLOWING PROCEDURE: 

"(A)  IF EITHER PARTY TO THIS AGREEMENT DESIRES TO AMEND THE TERMS OF
THIS AGREEMENT, IT SHALL NOTIFY THE OTHER PARTY IN WRITING OF ITS
DESIRE TO THAT EFFECT, BY REGISTERED MAIL.  NO SUCH NOTICE SHALL BE
GIVEN PRIOR TO AUGUST 24, 1951.  WITHIN THE PERIOD OF 60 DAYS,
IMMEDIATELY FOLLOWING THE DATE OF THE RECEIPT OF SAID NOTICE BY THE
PARTY TO WHICH NOTICE IS SO DELIVERED, THE COMPANY AND THE UNION SHALL
ATTEMPT TO AGREE AS TO THE DESIRED AMENDMENTS TO THIS AGREEMENT. 

"(B)  IF AN AGREEMENT WITH RESPECT TO AMENDMENT OF THIS AGREEMENT HAS
NOT BEEN REACHED WITHIN THE 60-DAY PERIOD MENTIONED IN THE SUB-SECTION
IMMEDIATELY PRECEDING, EITHER PARTY MAY TERMINATE THIS AGREEMENT
THEREAFTER UPON NOT LESS THAN SIXTY DAYS' WRITTEN NOTICE TO THE OTHER. 
ANY SUCH NOTICE OF TERMINATION SHALL STATE THE DATE UPON WHICH THE
TERMINATION OF THIS AGREEMENT SHALL BE EFFECTIVE." 

ON AUGUST 24, 1951, THE UNION SERVED WRITTEN NOTICE ON THE COMPANY OF
ITS DESIRE TO MODIFY THE CONTRACT.  (FN3)  NEGOTIATIONS BEGAN ON THE
CONTRACTUAL CHANGES PROPOSED BY THE UNION.  THE UNION MEMBERS VOTED FOR
A STRIKE ON FEBRUARY 14, 1952, BUT THE STRIKE, THRICE POSTPONED AS
NEGOTIATIONS CONTINUED, DID NOT ACTUALLY BEGIN UNTIL APRIL 30, 1952. 
THE UNION NEVER GAVE NOTICE TO TERMINATE THE CONTRACT AS CONTEMPLATED
BY THE QUOTED CONTRACTUAL PROVISION.  THEREFORE, AT ALL RELEVANT TIMES
A COLLECTIVE BARGAINING AGREEMENT WAS IN EFFECT.  ON AUGUST 3, A NEW
CONTRACT WAS EXECUTED, AND THE STRIKERS BEGAN TO RETURN TO WORK THE
FOLLOWING DAY.  CERTAIN ACTIONS OF THE COMPANY DURING THE STRIKE WERE
THE BASIS OF UNFAIR LABOR PRACTICE CHARGES BY THE UNION UPON WHICH A
COMPLAINT ISSUED. 

THE LABOR BOARD FOUND THAT THE COMPANY WAS GUILTY OF UNFAIR LABOR
PRACTICES UNDER SEC. 8(A)(1), (3) AND (5) OF THE ACT.  THE COMPANY
DEFENDED ON THE GROUND THAT THE STRIKE, BECAUSE IT OCCURRED WHILE THE
CONTRACT WAS IN EFFECT, WAS IN VIOLATION OF SEC. 8(D)(4).  A MAJORITY
OF THE BOARD REJECTED THIS DEFENSE, HOLDING THAT: 

"THE TERM 'EXPIRATION DATE' AS USED IN SECTION 8(D)(4)  ...  HAS A
TWOFOLD MEANING; IT CONNOTES NOT ONLY THE TERMINAL DATE OF A BARGAINING
CONTRACT, BUT ALSO AN AGREED DATE IN THE COURSE OF ITS EXISTENCE WHEN
THE PARTIES CAN EFFECT CHANGES IN ITS PROVISIONS." 

THE BOARD HELD THAT SINCE, UNDER THE CONTRACT IN DISPUTE, OCTOBER 23,
1951, WAS SUCH AN "AGREED DATE," THE NOTICE GIVEN AUGUST 24 FOLLOWED BY
A WAIT OF MORE THAN 60 DAYS SATISFIED THE STATUTE.  THE COMPANY WAS
ORDERED TO CEASE AND DESIST AND, AFFIRMATIVELY, TO MAKE WHOLE EMPLOYEES
FOUND TO HAVE BEEN DISCRIMINATED AGAINST.  109 N.L.R.B. 680, 683. 

ON THE COMPANY'S PETITION FOR REVIEW, THE COURT OF APPEALS SET ASIDE
THE BOARD'S ORDER.  221 F.2D 231.  THE COURT HELD THAT THE "EXPIRATION
DATE" OF THE CONTRACT WAS THE DATE ON WHICH ALL RIGHTS AND OBLIGATIONS
UNDER IT WOULD CEASE; THAT THE SECOND NOTICE REQUIRED TO BRING ABOUT
THIS TERMINATION NOT HAVING BEEN GIVEN, THE STRIKE VIOLATED SEC.
8(D)(4) AND THE STRIKERS THEREFORE LOST THEIR STATUS AS EMPLOYEES
ENTITLED TO THE PROTECTION OF THE ACT.  (FN4) 

IN MASTRO PLASTICS CORP. V. LABOR BOARD, SUPRA, WE HAD BEFORE US
ANOTHER PROVISION OF SEC. 8(D).  WHAT WE SAID THERE IN RULING OUT A
NARROWLY LITERAL CONSTRUCTION OF THE WORDS OF THE STATUTE IS EQUALLY
APROPOS HERE.  "IF THE ABOVE WORDS ARE READ IN COMPLETE ISOLATION FROM
THEIR CONTEXT IN THE ACT, SUCH AN INTERPRETATION IS POSSIBLE.  HOWEVER,
'IN EXPOUNDING A STATUTE, WE MUST NOT BE GUIDED BY A SINGLE SENTENCE OR
MEMBER OF A SENTENCE, BUT LOOK TO THE PROVISIONS OF THE WHOLE LAW, AND
TO ITS OBJECT AND POLICY.'  UNITED STATES V. BOISDORE'S HEIRS, 8 HOW. 
113, 122."  350 U.S., AT 285.  MOREOVER, IN MASTRO PLASTICS WE
CAUTIONED AGAINST ACCEPTING A CONSTRUCTION THAT "WOULD PRODUCE
INCONGRUOUS RESULTS."  ID., AT 286. 

THAT SEC. 8(D)(4) IS SUSCEPTIBLE OF VARIOUS INTERPRETATIONS IS
APPARENT WHEN SEC. 8(D) IS READ AS A WHOLE.  ITS AMBIGUITY WAS
RECOGNIZED BY THE JOINT COMMITTEE OF CONGRESS CREATED BY THE VERY ACT
OF WHICH SEC. 8(D) WAS A PART TO STUDY THE OPERATION OF THE FEDERAL
LABOR LAWS.  (FN5)  MEMBERS OF THE NATIONAL LABOR RELATIONS BOARD, THE
AGENCY SPECIALLY CHARGED BY CONGRESS WITH EFFECTUATING THE PURPOSES OF
THE NATIONAL LABOR LEGISLATION, HAVE EXPRESSED DIVERGENT VIEWS ON THE
PROPER CONSTRUCTION OF SEC. 8(D)(4); NONE OF THEM HAS TAKEN THE
POSITION ADOPTED BY THE COURT BELOW.  (FN6)  IN THE FACT OF THIS
AMBIGUITY IT WILL NOT DO SIMPLY TO SAY CONGRESS COULD HAVE MADE ITSELF
CLEARER AND AUTOMATICALLY EQUATE THE PHRASE "EXPIRATION DATE" ONLY WITH
THE DATE WHEN A CONTRACT COMES TO AN END. 

WE FIND OUR GUIDE TO THE GENERAL CONTEXT OF THE STATUTE IN MASTRO
PLASTICS.  IN THAT CASE WE RECOGNIZED A "DUAL PURPOSE" IN THE TAFT
HARTLEY ACT - TO SUBSTITURE COLLECTIVE BARGAINING FOR ECONOMIC WARFARE
AND TO PROTECT THE RIGHT OF EMPLOYEES TO ENGAGE IN CONCERTED ACTIVITIES
FOR THEIR OWN BENEFIT.  350 U.S., AT 284.  A CONSTRUCTION WHICH SERVES
NEITHER OF THESE AIMS IS TO BE AVOIDED UNLESS THE WORDS CONGRESS HAS
CHOSEN CLEARLY COMPEL IT.  THE RESTRICTION ON EMPLOYEES' CONCERTED
ACTIVITIES WHICH WOULD RESULT FROM THE CONSTRUCTION PLACED UPON SEC.
8(D)(4) BY THE COURT OF APPEALS IS OBVIOUS.  (FN7)  TOO, WE THINK IT
WOULD DISCOURAGE THE DEVELOPMENT OF LONG-TERM BARGAINING
RELATIONSHIPS.  UNIONS WOULD BE WARY OF ENTERING INTO LONG-TERM
CONTRACTS WITH MACHINERY FOR REOPENING THEM FOR MODIFICATION FROM TIME
TO TIME, IF THEY THOUGHT THE RIGHT TO STRIKE WOULD BE DENIED THEM FOR
THE ENTIRE TERM OF SUCH A CONTRACT, THOUGH THEY IMPOSED NO SUCH
LIMITATIONS ON THEMSELVES. 

WE DO NOT BELIEVE THAT THE LANGUAGE USED BY CONGRESS REQUIRES ANY
SUCH RESULT.  SECTION 8(D)(1) PROVIDES THAT NO PARTY TO AN EXISTING
COLLECTIVE BARGAINING CONTRACT "SHALL TERMINATE OR MODIFY SUCH
CONTRACT, UNLESS THE PARTY DESIRING SUCH TERMINATION OR MODIFICATION -
(1) SERVES A WRITTEN NOTICE UPON THE OTHER PARTY TO THE CONTRACT OF THE
PROPOSED TERMINATION OR MODIFICATION SIXTY DAYS PRIOR TO THE EXPIRATION
DATE THEREOF  ...  ."  THE PHRASE "EXPIRATION DATE" IS REPEATED IN SEC.
8(D)(1) AND AGAIN IN THE "WHICHEVER OCCURS LATER" CLAUSE OF SEC.
8(D)(4) UPON WHICH THIS CASE TURNS.  THE USE OF THE THREE WORDS
"TERMINATION," "MODIFICATION" AND "EXPIRATION" IS SIGNIFICANT.  WE
CONCEIVE THAT A NOTICE OF DESIRED MODIFICATION WOULD TYPICALLY BE
SERVED IN ADVANCE OF THE DATE WHEN THE CONTRACT BY ITS OWN TERMS WAS
SUBJECT TO MODIFICATION.  NOTICE OF DESIRED TERMINATION WOULD
ORDINARILY PRECEDE THE DATE WHEN THE CONTRACT WOULD COME TO AN END BY
ITS TERMS OR WOULD BE AUTOMATICALLY RENEWED IN THE ABSENCE OF NOTICE TO
TERMINATE.  THEREFORE WE CONCLUDE THAT CONGRESS MEANT BY "EXPIRATION
DATE" IN SEC. 8(D)(1) TO ENCOMPASS BOTH SITUATIONS, AND THE SAME PHRASE
IN SEC. 8(D)(4) MUST CARRY THE SAME MEANING.  "EXPIRATION" HAS NO SUCH
FIXED AND SETTLED MEANING AS TO MAKE THIS AN UNDULY STRAINED READING. 

OUR CONCLUSION IS BUTTRESSED BY A PROVISION OF SEC. 8(D) WHICH WAS
ADDED BY THE CONFERENCE COMMITTEE.  (FN8) 

"THE DUTIES  ...  IMPOSED BY SUBSECTIONS (2), (3) AND (4) SHALL NOT
BE CONSTRUED AS REQUIRING EITHER PARTY TO DISCUSS OR AGREE TO ANY
MODIFICATION OF THE TERMS AND CONDITIONS CONTAINED IN A CONTRACT FOR A
FIXED PERIOD, IF SUCH MODIFICATION IS TO BECOME EFFECTIVE BEFORE SUCH
TERMS AND CONDITIONS CAN BE REOPENED UNDER THE PROVISIONS OF THE
CONTRACT." 

THE NEGATIVE IMPLICATION SEEMS CLEAR:  CONGRESS RECOGNIZED A DUTY TO
BARGAIN OVER MODIFICATIONS WHEN THE CONTRACT ITSELF CONTEMPLATES SUCH
BARGAINING.  IT WOULD BE ANOMALOUS FOR CONGRESS TO RECOGNIZE SUCH A
DUTY AND AT THE SAME TIME DEPRIVE THE UNION OF THE STRIKE THREAT WHICH,
TOGETHER WITH "THE OCCASIONAL STRIKE ITSELF, IS THE FORCE DEPENDED UPON
TO FACILITATE ARRIVING AT SATISFACTORY SETTLEMENTS."  (FN9) 

ALTHOUGH A 1948 COMMITTEE REPORT IS NO PART OF THE LEGISLATIVE
HISTORY OF A STATUTE ENACTED IN 1947, WE NOTE THAT THE JOINT COMMITTEE
ON LABOR-MANAGEMENT RELATIONS, MADE UP OF MEMBERS OF THE CONGRESS WHICH
PASSED THE TAFT-HARTLEY ACT, IN ITS FINAL REPORT REACHED THE SAME
CONCLUSION WE DO: 

"READING SECTION 8(D) AS A WHOLE SEEMS TO LEAD TO THE CONCLUSION THAT
THE ACT PERMITS A STRIKE, AFTER A 60-DAY NOTICE, IN THE MIDDLE OF A
CONTRACT WHICH AUTHORIZES A REOPENING ON WAGES.  USE OF THE WORDS 'OR
MODIFY' AND 'OR MODIFICATION' IN THE PROVISO, AND USE OF 'OR
MODIFICATION' IN SECTION 8(D)(1), AND THE STATEMENT IN THE FINAL
PARAGRAPH OF THE SECTION THAT THE PARTIES ARE NOT REQUIRED TO AGREE TO
ANY MODIFICATION EFFECTIVE BEFORE THE CONTRACT MAY BE REOPENED UNDER
ITS TERMS, ALL SEEM TO CONTEMPLATE THE RIGHT OF EITHER PARTY TO INSIST
ON CHANGES IN THE CONTRACT IF THEY HAVE SO PROVIDED.  THE RIGHT OF THE
UNION WOULD BE AN EMPTY ONE WITHOUT THE RIGHT TO STRIKE AFTER A 60-DAY
NOTICE."  (FN10) 

THE CONTEMPORARY LEGISLATIVE HISTORY MANIFESTS NO REAL RECOGNITION OF
THE PROBLEM BEFORE US. (FN11)  A READING OF THE COMMITTEE REPORTS AND
THE FLOOR DEBATES ALONE COULD WELL LEAD TO THE CONCLUSION THAT BOTH THE
SPONSORS AND THE OPPONENTS OF THE BILL SAW IN SEC.  8(D)(4) NO MORE
THAN A MEANS FOR PREVENTING "QUICKIE" STRIKES BY REQUIRING A "COOLING
OFF" PERIOD WHICH WOULD NOT IN ANY CIRCUMSTANCES EXCEED 60 DAYS. 
(FN12)  BUT THE LANGUAGE USED IN THE STATUTE GOES BEYOND THIS LIMITED
PURPOSE.  SIGNIFICANCE MUST BE GIVEN TO THE CLAUSE, "OR UNTIL THE
EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS LATER."  WE BELIEVE
OUR CONSTRUCTION GIVES MEANING TO THE CONGRESSIONAL LANGUAGE WHICH
ACCORDS WITH THE GENERAL PURPOSE OF THE ACT. 

APPLYING THAT CONSTRUCTION TO THE FACTS OF THIS CASE, WE HOLD THAT
THE NOTICE AND WAITING REQUIREMENTS OF SEC. 8(D) WERE FULLY SATISFIED. 
OCTOBER 23, 1951, WAS THE FIRST DATE UPON WHICH THE CONTRACT BY ITS
TERMS WAS SUBJECT TO AMENDMENT.  NOTICE OF PROPOSED AMENDMENTS WAS
SERVED 60 DAYS IN ADVANCE.  THE STRIKE DID NOT OCCUR UNTIL LONG
AFTERWARD.  THE FACT THAT ON OCTOBER 23 THE CONTRACT BECAME TERMINABLE
UPON FURTHER NOTICE BY EITHER PARTY IS IMMATERIAL.  ONE THING THE MOST
AUTHORITATIVE LEGISLATIVE GLOSS ON SEC. 8(D), THE REPORT OF THE SENATE
COMMITTEE, MAKES CLEAR IS THAT THE STATUTORY NOTICE REQUIREMENT
OPERATES WHOLLY INDEPENDENTLY OF WHATEVER NOTICE REQUIREMENT THE
PARTIES HAVE FIXED FOR THEMSELVES.  (FN13)  THE SITUATION HERE IS NOT
DIFFERENT, SO FAR AS THE APPLICABILITY OF THE STATUTE IS CONCERNED,
FROM THAT OF A FIXED-TERM CONTRACT WITH A CLAUSE PROVIDING FOR
REOPENING AT SOME SPECIFIC TIME.    NOR CAN WE ACCEPT RESPONDENTS'
ALTERNATIVE CONTENTION THAT, EVEN APART FROM SEC. 8(D), THE STRIKE WAS
IN BREACH OF CONTRACT AND THE STRIKERS WERE FOR THAT REASON NOT
ENTITLED TO RELIEF AT THE HAND OF THE BOARD.  RESPONDENTS RELY UPON
LABOR BOARD V. SANDS MFG. CO., 306 U.S. 332.  IN SANDS, AS IN THIS
CASE, THE CONTRACT DID NOT CONTAIN AN EXPRESS NO-STRIKE CLAUSE. 
EMPLOYEES THERE REFUSED IN THE COURSE OF THE CONTRACT TO CONTINUE WORK
"IN ACCORDANCE WITH THEIR CONTRACT."  ID., AT 344.  THE REFUSAL
OCCURRED MIDWAY IN A FIXED-TERM CONTRACT WHICH DID NOT PROVIDE FOR
MODIFICATIONS DURING ITS TERM.  THIS COURT SUSTAINED THE PROPRIETY OF
THE EMPLOYER'S ACTION IN DISCHARGING THE EMPLOYEES.  HERE THE STRIKE
OCCURRED AT A TIME WHEN THE PARTIES WERE BARGAINING OVER MODIFICATIONS
AFTER NOTICE AND IN ACCORDANCE WITH THE TERMS OF THE CONTRACT.  WHERE
THERE HAS BEEN NO EXPRESS WAIVER OF THE RIGHT TO STRIKE, (FN14) A
WAIVER OF THE RIGHT DURING SUCH A PERIOD IS NOT TO BE INFERRED.  WE DO
NOT BELIEVE THAT THE TWO-PHRASE PROVISION FOR TERMINATING THIS CONTRACT
MEANS THAT IT WAS NOT WITHIN THE CONTEMPLATION OF THE PARTIES THAT
ECONOMIC WEAPONS MIGHT BE USED TO SUPPORT DEMANDS FOR MODIFICATION
BEFORE THE NOTICE TO TERMINATE WAS GIVEN. 

THE JUDGMENT BELOW IS REVERSED AND THE CASE REMANDED FOR PROCEEDINGS
IN CONFORMITY WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  "SEC.  8  ...  . 

"(D)  FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS
THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT, OR ANY
QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN CONTRACT
INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY EITHER PARTY, BUT
SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR
REQUIRE THE MAKING OF A CONCESSION:  PROVIDED, THAT WHERE THERE IS IN
EFFECT A COLLECTIVE-BARGAINING CONTRACT COVERING EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE, THE DUTY TO BARGAIN COLLECTIVELY SHALL
ALSO MEAN THAT NO PARTY TO SUCH CONTRACT SHALL TERMINATE OR MODIFY SUCH
CONTRACT, UNLESS THE PARTY DESIRING SUCH TERMINATION OR MODIFICATION:

"(1)  SERVES A WRITTEN NOTICE UPON THE OTHER PARTY TO THE CONTRACT OF
THE PROPOSED TERMINATION OR MODIFICATION SIXTY DAYS PRIOR TO THE
EXPIRATION DATE THEREOF, OR IN THE EVENT SUCH CONTRACT CONTAINS NO
EXPIRATION DATE, SIXTY DAYS PRIOR TO THE TIME IT IS PROPOSED TO MAKE
SUCH TERMINATION OR MODIFICATION: 

"(2)  OFFERS TO MEET AND CONFER WITH THE OTHER PARTY FOR THE PURPOSE
OF NEGOTIATING A NEW CONTRACT OR A CONTRACT CONTAINING THE PROPOSED
MODIFICATION: 

"(3)  NOTIFIES THE FEDERAL MEDIATION AND CONCILIATION SERVICE WITHIN
THIRTY DAYS AFTER SUCH NOTICE OF THE EXISTENCE OF A DISPUTE, AND
SIMULTANEOUSLY THEREWITH NOTIFIES ANY STATE OR TERRITORIAL AGENCY
ESTABLISHED TO MEDIATE AND CONCILIATE DISPUTES WITHIN THE STATE OR
TERRITORY WHERE THE DISPUTE OCCURRED, PROVIDED NO AGREEMENT HAS BEEN
REACHED BY THAT TIME; AND: 

"(4)  CONTINUES IN FULL FORCE AND EFFECT, WITHOUT RESORTING TO STRIKE
OR LOCK-OUT, ALL THE TERMS AND CONDITIONS OF THE EXISTING CONTRACT FOR
A PERIOD OF SIXTY DAYS AFTER SUCH NOTICE IS GIVEN OR UNTIL THE
EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS LATER: 

THE DUTIES IMPOSED UPON EMPLOYERS, EMPLOYEES, AND LABOR ORGANIZATIONS
BY PARAGRAPHS (2), (3), AND (4) SHALL BECOME INAPPLICABLE UPON AN
INTERVENING CERTIFICATION OF THE BOARD, UNDER WHICH THE LABOR
ORGANIZATION OR INDIVIDUAL, WHICH IS A PARTY TO THE CONTRACT, HAS BEEN
SUPERSEDED AS OR CEASED TO BE THE REPRESENTATIVE OF THE EMPLOYEES
SUBJECT TO THE PROVISIONS OF SECTION 9(A), AND THE DUTIES SO IMPOSED
SHALL NOT BE CONSTRUED AS REQUIRING EITHER PARTY TO DISCUSS OR AGREE TO
ANY MODIFICATION OF THE TERMS AND CONDITIONS CONTAINED IN A CONTRACT
FOR A FIXED PERIOD, IF SUCH MODIFICATION IS TO BECOME EFFECTIVE BEFORE
SUCH TERMS AND CONDITIONS CONTAINED IN A CONTRACT FOR A FIXED PERIOD,
IF SUCH MODIFICATION IS TO BECOME EFFECTIVE BEFORE SUCH TERMS AND
CONDITIONS CAN BE REOPENED UNDER THE PROVISIONS OF THE CONTRACT.  ANY
EMPLOYEE WHO ENGAGES IN A STRIKE WITHIN THE SIXTY-DAY PERIOD SPECIFIED
IN THIS SUBSECTION SHALL LOSE HIS STATUS AS AN EMPLOYEE OF THE EMPLOYER
ENGAGED IN THE PARTICULAR LABOR DISPUTE, FOR THE PURPOSES OF SECTIONS
8, 9, AND 10 OF THIS ACT, AS AMENDED, BUT SUCH LOSS OF STATUS FOR SUCH
EMPLOYEE SHALL TERMINATE IF AND WHEN HE IS REEMPLOYED BY SUCH
EMPLOYER."  61 STAT. 140, 142-143, 29 U.S.C. SEC. 158(D). 

FN2  BNA, COLLECTIVE BARGAINING NEGOTIATIONS AND CONTRACT SERVICE,
36:301. 

FN3  COPIES OF THE NOTICE WERE SENT TO THE FEDERAL MEDIATION AND
CONCILIATION SERVICE AND TO THE ARKANSAS LABOR COMMISSIONER TO COMPLY
WITH SEC. 8(D)(2). 

FN4  THE ONLY OTHER CASE IN THE COURTS OF APPEALS INVOLVING THE
QUESTION PRESENTED HERE IS LOCAL NO. 3, UNITED PACKINGHOUSE WORKERS V.
LABOR BOARD, 210 F.2D 325, CERT. DENIED, 348 U.S. 822, ALSO DECIDED BY
THE EIGHTH CIRCUIT.  THE COURT THERE CONSTRUED SEC. 8(D)(4) AS IT DID
HERE, ALTHOUGH ON ITS FACTS THE DECISION IS RECONCILABLE WITH THE
BOARD'S CONSTRUCTION OF THE SECTION IN THIS CASE. 

FN5  JOINT COMMITTEE ON LABOR-MANAGEMENT RELATIONS, FINAL REPORT, S.
REP. NO. 986, PT. 3, 80TH CONG., 2D SESS. 62-63. 

FN6  THE BOARD'S ORIGINAL VIEW IN WILSON & CO., 89 N.L.R.B. 310, WAS
THAT SEC. 8(D) PERMITTED STRIKES IN SUPPORT OF CONTRACT CHANGES ANY
TIME AFTER 60 DAYS' NOTICE.  MEMBER PETERSON, CONCURRING SPECIALLY IN
THE PRESENT CASE, ADHERED TO THAT VIEW.  MEMBER MURDOCK DISSENTED ON
THE SAME GROUND ON WHICH HE HAD CONCURRED SPECIALLY IN WILSON & CO.,
NAMELY, THAT SEC. 8(D) APPLIES ONLY DURING THE PERIOD AROUND THE
TERMINATION OF A CONTRACT. 

FN7  CF. SEC. 13 OF THE ACT:  "NOTHING IN THIS ACT, EXCEPT AS
SPECIFICALLY PROVIDED FOR HEREIN, SHALL BE CONSTRUED SO AS EITHER TO
INTERFERE WITH OR IMPEDE OR DIMINISH IN ANY WAY THE RIGHT TO STRIKE, OR
TO AFFECT THE LIMITATIONS OR QUALIFICATIONS ON THAT RIGHT."  61 STAT.
151, 29 U.S.C. SEC. 163. 

FN8  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 35. 

FN9  SUBCOMMITTEE ON LABOR AND LABOR-MANAGEMENT RELATIONS, FACTORS IN
SUCCESSFUL COLLECTIVE BARGAINING, S. REP. UNDER S. RES. 71, 82D CONG.,
1ST SESS. 7 (COMMITTEE PRINT). 

FN10  S. REP. NO. 986, PT. 3, 80TH CONG., 2D SESS 62.  IN 1949
SENATOR TAFT, WHO WAS A MEMBER OF THE JOINT COMMITTEE, INTRODUCED A
CLARIFYING AMENDMENT TO SEC. 8(D).  SEE S. REP.  NO. 99, PT. 2, 81ST
CONG., 1ST SESS. 42 (MINORITY REPORT).  THE AMENDMENT, ALONG WITH A
GROUP OF OTHERS, PASSED THE SENATE, 95 CONG. REC. 8717, BUT DID NOT
BECOME LAW. 

FN11  SEE S. REP. NO. 105, 80TH CONG., 1ST SESS. 24; ID., PT. 2, PP.
21-22; H.R. CONF.  REP. NO. 510, 80TH CONG., 1ST SESS. 34-35.  SEE ALSO
93 CONG. REC. 3835, 3839, 4036, 4904-4905, 5005, 5014, 6385, 6389,
6444, 6503-6504, 7530. 

FN12  THE MINORITY MEMBERS OF THE SENATE COMMITTEE WHICH REPORTED OUT
THE BILL CONTAINING SEC. 8(D) DID NOT SAY THE EFFECT OF IT WAS TO
INCORPORATE NO-STRIKE CLAUSES INTO LABOR CONTRACTS "BY LEGISLATIVE
FIAT."  THE CONTEXT, HOWEVER, MAKES IT TOLERABLY CLEAR THAT THEY WERE
REFERRING TO A BAN ON STRIKES DURING THE 60-DAY NOTICE PERIOD.  S. REP.
NO. 105, PT. 2, 80TH CONG., 1ST SESS. 22. 

FN13  SECTION 8(D) ORIGINATED IN THE SENATE.  THE COMMITTEE SAID, "IT
SHOULD BE NOTED THAT THIS SECTION (SEC. 8(D)) DOES NOT RENDER
INOPERATIVE THE OBLIGATION TO CONFORM TO NOTICE PROVISIONS FOR LONGER
PERIODS, IF THE COLLECTIVE AGREEMENT SO PROVIDES.  FAILURE TO GIVE SUCH
NOTICE, HOWEVER, DOES NOT BECOME AN UNFAIR LABOR PRACTICE IF THE 60-DAY
PROVISION IS COMPLIED WITH."  S. REP. NO. 105, 80TH CONG., 1ST SESS.
24. 

FN14  A NO-STRIKE CLAUSE WAS ONE OF THE COMPANY'S DEMANDS DURING THE
NEGOTIATIONS IN THIS CASE. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING IN PART AND DISSENTING IN PART. 

AGREEING AS I DO WITH THE COURT'S CONSTRUCTION OF SEC. 8(D) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED, I JOIN ITS OPINION ON THAT
PHASE.  BUT I DO NOT THINK THAT THE COURT SHOULD NOW PASS UPON
RESPONDENT'S ALTERNATIVE DEFENSE OF BREACH OF CONTRACT, WHICH THE COURT
OF APPEALS DID NOT REACH BECAUSE OF ITS VIEW OF THE STATUTE.  PERHAPS
THAT QUESTION IS NOT OPEN FOR JUDICIAL CONSIDERATION.  SECTION 10(E) OF
THE ACT PROVIDES THAT: 

"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."  (FN1) 

THE BOARD HAS NOT RAISED THE POINT HERE, AND IT IS NOT CLEAR FROM THE
RECORD THAT RESPONDENT URGED THIS OBJECTION BEFORE THE BOARD.  IN ANY
EVENT, IT IS NOT FOR THIS COURT IN THE FIRST INSTANCE TO CONSTRUE THIS
PARTICULAR CONTRACT.  IN REMANDING THE CASE I WOULD THEREFORE LEAVE IT
TO THE COURT OF APPEALS TO DETERMINE:  (1) WHETHER RESPONDENT HAS
COMPLIED WITH SEC. 10(E); (2) WHETHER IN THIS CONTRACT AN AGREEMENT NOT
TO STRIKE IS REASONABLY TO BE IMPLIED; AND (3) WHETHER RESPONDENT
CONTINUED ITS EMPLOYMENT RELATIONSHIP WITH THE STRIKERS AND SHOULD ON
THAT ACCOUNT BE SUBJECT TO THE CONSEQUENCES OF ITS ALLEGED UNFAIR LABOR
PRACTICES EVEN IF THE STRIKE WAS IN VIOLATION OF CONTRACT.  FINALLY, IT
IS FOR THE COURT OF APPEALS TO JUDGE WHETHER THE RECORD AS A WHOLE
SUPPORTS THE BOARD'S FINDINGS OF UNFAIR LABOR PRACTICES.  UNIVERSAL
CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 491. 

THE INHERENT COMPLICATIONS OF THE PROBLEM OF STATUTORY CONSTRUCTION,
AS REFLECTED IN THE CONFLICTING VIEWS OF THE MEMBERS OF THE LABOR
BOARD, MAKE FURTHER DISCUSSION DESIRABLE, EVEN THOUGH THIS MAY ENTAIL
SOME REPETITION OF WHAT IS SAID IN THE COURT'S OPINION.  SECTION 8(D)
DEFINES THE DUTY OF THE EMPLOYER AND THE UNION TO BARGAIN
COLLECTIVELY.  A LONG PROVISO IN THE SECTION TREATS SPECIFICALLY OF
THIS DUTY WHERE A COLLECTIVE-BARGAINING AGREEMENT IS IN EFFECT.  THE
PROVISO MUST BE CONSIDERED IN ITS ENTIRETY: 

"THAT WHERE THERE IS IN EFFECT A COLLECTIVE-BARGAINING CONTRACT
COVERING EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE, THE DUTY TO
BARGAIN COLLECTIVELY SHALL ALSO MEAN THAT NO PARTY TO SUCH CONTRACT
SHALL TERMINATE OR MODIFY SUCH CONTRACT, UNLESS THE PARTY DESIRING SUCH
TERMINATION OR MODIFICATION:

"(1)  SERVES A WRITTEN NOTICE UPON THE OTHER PARTY TO THE CONTRACT OF
THE PROPOSED TERMINATION OR MODIFICATION SIXTY DAYS PRIOR TO THE
EXPIRATION DATE THEREOF, OR IN THE EVENT SUCH CONTRACT CONTAINS NO
EXPIRATION DATE, SIXTY DAYS PRIOR TO THE TIME IT IS PROPOSED TO MAKE
SUCH TERMINATION OR MODIFICATION: 

"(2)  OFFERS TO MEET AND CONFER WITH THE OTHER PARTY FOR THE PURPOSE
OF NEGOTIATING A NEW CONTRACT OR A CONTRACT CONTAINING THE PROPOSED
MODIFICATION: 

"(3)  NOTIFIES THE FEDERAL MEDIATION AND CONCILIATION SERVICE WITHIN
THIRTY DAYS AFTER SUCH NOTICE OF THE EXISTENCE OF A DISPUTE, AND
SIMULTANEOUSLY THEREWITH NOTIFIES ANY STATE OR TERRITORIAL AGENCY
ESTABLISHED TO MEDIATE AND CONCILIATE DISPUTES WITHIN THE STATE OR
TERRITORY WHERE THE DISPUTE OCCURRED, PROVIDED NO AGREEMENT HAS BEEN
REACHED BY THAT TIME; AND: 

"(4)  CONTINUES IN FULL FORCE AND EFFECT, WITHOUT RESORTING TO STRIKE
OR LOCK-OUT, ALL THE TERMS AND CONDITIONS OF THE EXISTING CONTRACT FOR
A PERIOD OF SIXTY DAYS AFTER SUCH NOTICE IS GIVEN OR UNTIL THE
EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS LATER: 

"THE DUTIES IMPOSED UPON EMPLOYERS, EMPLOYEES, AND LABOR
ORGANIZATIONS BY PARAGRAPHS (2), (3), AND (4) SHALL BECOME INAPPLICABLE
UPON AN INTERVENING CERTIFICATION OF THE BOARD, UNDER WHICH THE LABOR
ORGANIZATION OR INDIVIDUAL, WHICH IS A PARTY TO THE CONTRACT, HAS BEEN
SUPERSEDED AS OR CEASED TO BE THE REPRESENTATIVE OF THE EMPLOYEES
SUBJECT TO THE PROVISIONS OF SECTION 9(A), AND THE DUTIES SO IMPOSED
SHALL NOT BE CONSTRUED AS REQUIRING EITHER PARTY TO DISCUSS OR AGREE TO
ANY MODIFICATION OF THE TERMS AND CONDITIONS CONTAINED IN A CONTRACT
FOR A FIXED PERIOD, IF SUCH MODIFICATION IS TO BECOME EFFECTIVE BEFORE
SUCH TERMS AND CONDITIONS CAN BE REOPENED UNDER THE PROVISIONS OF THE
CONTRACT.  ANY EMPLOYEE WHO ENGAGES IN A STRIKE WITHIN THE SIXTY-DAY
PERIOD SPECIFIED IN THIS SUBSECTION SHALL LOSE HIS STATUS AS AN
EMPLOYEE OF THE EMPLOYER ENGAGED IN THE PARTICULAR LABOR DISPUTE, FOR
THE PURPOSES OF SECTIONS 8, 9, AND 10 OF THIS ACT, AS AMENDED, BUT SUCH
LOSS OF STATUS FOR SUCH EMPLOYEE SHALL TERMINATE IF AND WHEN HE IS
REEMPLOYED BY SUCH EMPLOYER." 

THE REASONED EFFORTS OF THE FIVE MEMBERS OF THE BOARD AND THE THREE
CIRCUIT JUDGES WHOSE TASK IT HAS BEEN TO APPLY THIS PROVISO TO THE
PROBLEM BEFORE US - WHERE AN ECONOMIC STRIKE OCCURS PRIOR TO THE
CONTRACT'S TERMINATION BUT PURSUANT TO ITS REOPENING PROVISIONS AND
AFTER SIXTY DAYS' NOTICE - HAVE PRODUCED FOUR DISTINCT INTERPRETATIONS
OF THE ACT.  THE COURT OF APPEALS, RELYING ON ITS PREVIOUS DECISION IN
WILSON & CO. V. LABOR BOARD, 210 F.2D 325, ADOPTED RESPONDENT'S
CONTENTION THAT "EXPIRATION DATE" MEANS TERMINATION DATE AND THAT SEC.
8(D)(4) THEREFORE BANS ALL BARGAINING STRIKES THROUGHOUT THE LIFE OF A
COLLECTIVE-BARGAINING CONTRACT.  THE BOARD MAJORITY HELD THAT
"EXPIRATION DATE" ALSO COMPREHENDS "AN AGREED DATE IN THE COURSE OF THE
CONTRACT'S EXISTENCE WHEN THE PARTIES CAN EFFECT CHANGES IN ITS
PROVISIONS  ...  " AND THAT SEC. 8(D) PROHIBITS ALL STRIKES DURING THE
LIFE OF THE CONTRACT EXCEPT THOSE IN SUPPORT OF BARGAINING PURSUANT TO
A REOPENING CLAUSE.  MEMBER PETERSON ADHERED TO THE BOARD'S FORMER
INTERPRETATION, SEE WILSON & CO., 89 N.L.R.B. 310, THAT SO LONG AS THE
UNION GIVES NOTICE OF ITS DESIRE TO MODIFY THE CONTRACT SIXTY DAYS
BEFORE STRIKING, SEC. 8(D) DOES NOT PROHIBIT A STRIKE AT ANY TIME
DURING THE LIFE OF THE CONTRACT.  FINALLY, MEMBER MURDOCK ARGUED THAT
SEC. 8(D) "APPLIES ONLY TO THE PERIOD AROUND THE EXPIRATION DATE OF
CONTRACT," WHICH HE DEFINED TO MEAN ITS TERMINATION DATE, AND THAT
PRIOR TO THAT PERIOD A UNION MAY STRIKE WITHOUT ANY NOTICE WHATSOEVER. 
SUCH DIVERSE INTERPRETATIONS, PARTICULARLY BY THE AUTHORITIES CHARGED
WITH THE ADMINISTRATION OF THE ACT, REFLECT NOT ONLY THE AMBIGUITY OF
SEC. 8(D)'S LANGUAGE BUT ALSO THE OBSCURITY OF ITS LEGISLATIVE
HISTORY.  THE FACT IS THAT THE TAFT-HARTLEY CONGRESS DID NOT REVEAL ITS
"INTENTION" REGARDING OUR PRESENT PROBLEM - THE LEGALITY OF ECONOMIC
STRIKES PRIOR TO THE CONTRACT'S ENDING.  IT HAS THUS BECOME A JUDICIAL
RESPONSIBILITY TO FIND THAT INTERPRETATION WHICH CAN MOST FAIRLY BE
SAID TO BE EMBEDDED IN THE STATUTE, IN THE SENSE OF BEING MOST
HARMONIOUS WITH ITS SCHEME AND WITH THE GENERAL PURPOSES THAT CONGRESS
MANIFESTED. 

THE CONSTRUCTION PLACED UPON THE PROVISO BY THE COURT OF APPEALS -
THAT IT BANS STRIKES THROUGHOUT THE LIFE OF THE CONTRACT, EVEN AT
REOPENING - SEEMS LEAST TENABLE.  ALTHOUGH EXPIRATION IS A COMMON
SYNONYM FOR TERMINATION, SEC. 8(D) DOES NOT USE THE TERMS
INTERCHANGEABLY.  IT SPEAKS REPEATEDLY OF "TERMINATION OR
MODIFICATION," WHILE "EXPIRATION" SEEMS TO EMBRACE BOTH EVENTS. 
MOREOVER, THIS SECTION PROVIDES THAT IT: 

"SHALL NOT BE CONSTRUED AS REQUIRING EITHER PARTY TO DISCUSS OR AGREE
TO ANY MODIFICATION OF THE TERMS AND CONDITIONS CONTAINED IN A CONTRACT
FOR A FIXED PERIOD, IF SUCH MODIFICATION IS TO BECOME EFFECTIVE BEFORE
SUCH TERMS AND CONDITIONS CAN BE REOPENED UNDER THE PROVISIONS OF THE
CONTRACT." 

THIS IMPLIES AN AFFIRMATIVE DUTY TO BARGAIN DURING REOPENING.  IT IS
NOT TO BE ASSUMED THAT CONGRESS PROVIDED SUCH A DUTY AND AT THE SAME
TIME FORECLOSED A POTENTIAL STRIKE, A CONVENTIONAL FACTOR IN THE
COLLECTIVE-BARGAINING PROCESS. 

THE MEANING GIVEN TO "EXPIRATION DATE" BY THE COURT OF APPEALS WOULD
MAKE SEC. 8(D) ACHIEVE OTHER ANOMALOUS RESULTS.  FOR EXAMPLE, WHERE
THERE IS IN EFFECT A TWO-YEAR CONTRACT PROVIDING FOR REOPENING AFTER
ONE YEAR, THE PARTY PROPOSING MODIFICATION AT REOPENING WOULD NOT BE
REQUIRED BY SEC. 8(D)(1) TO SERVE NOTICE UPON THE OTHER PARTY UNTIL TEN
MONTHS AFTER REOPENING HAD PASSED, AND SEC. 8(D)(3) WOULD NOT REQUIRE
NOTICE TO MEDIATING AGENCIES UNTIL ELEVEN MONTHS AFTER REOPENING. 
SIMILARLY, THE LOSS-OF-STATUS SENTENCE, WHICH APPLIES TO EMPLOYEES WHO
STRIKE "WITHIN THE SIXTY-DAY PERIOD SPECIFIED IN THIS SUBSECTION  ...
," WOULD PUNISH ONLY EMPLOYEES WHO STRIKE TEN MONTHS FOLLOWING
REOPENING. 

NOTHING IN SEC. 8(D)'S LEGISLATIVE HISTORY WARRANTS SUCH A STRAINED
CONSTRUCTION.  TO BE SURE, AT ONE POINT IN THE SENATE DEBATE SENATOR
TAFT DID SAY THAT "IF SUCH SIXTY DAYS' NOTICE IS GIVEN, THE BILL
PROVIDES NO WAITING PERIOD EXCEPT DURING THE LIFE OF THE CONTRACT
ITSELF."  BUT SENATOR TAFT'S ATTENTION WAS DIRECTED SOLELY AT STRIKES
AT TERMINATION, AND THIS STATEMENT WAS INTENDED MERELY TO EMPHASIZE THE
POINT MADE IN THE FOLLOWING SENTENCE THAT IF NOTICE IS GIVEN LESS THAN
SIXTY DAYS PRIOR TO TERMINATION THE WAITING PERIOD EXTENDS BEYOND THE
LIFE OF THE CONTRACT.  (FN2) 

EVIDENCE THAT A REASONABLE INTERPRETATION OF WHAT THE TAFT-HARTLEY
CONGRESS LEGISLATED IS THAT IT ALLOWED BARGAINING STRIKES AT REOPENING
IF PRECEDED BY SIXTY DAYS' NOTICE.  WHEN, IN 1948, THE AMBIGUITY IN THE
STATUTORY LANGUAGE WAS CALLED TO THE ATTENTION OF CONGRESS, THE JOINT
COMMITTEE ON LABOR-MANAGEMENT RELATIONS, OF WHICH SENATOR TAFT WAS A
MEMBER, RECOMMENDED A CLARIFYING AMENDMENT IN ORDER TO AVOID THE
POSSIBILITY THAT SEC. 8(D) MIGHT BE INTERPRETED AS EITHER BANNING
STRIKES AT REOPENING OR AS PERMITTING STRIKES PRIOR TO REOPENING.  THE
COMMITTEE REPORT STATED: 

"IN ORDER THAT THE PARTIES MAY BETTER KNOW THEIR RIGHTS IN THE
MATTER, THE COMMITTEE RECOMMENDS THE ADOPTION OF THE AMENDMENTS WHICH
WOULD PERMIT A STRIKE OR A LOCK-OUT AFTER A 60-DAY NOTICE IN SUPPORT OF
DEMANDS THEY HAVE ANTICIPATED IN A REOPENING CLAUSE."  S. REP. NO. 986,
80TH CONG., 2D SESS. 63 (1948). 

IN 1949, SENATOR TAFT HIMSELF PROPOSED SUCH AN AMENDMENT, S. REP. NO.
99, 81ST CONG., 1ST SESS. 27, 42 (1949), WHICH WAS PASSED BY THE
SENATE, 95 CONG. REC. 8717, BUT NEVER BECAME LAW. 

AT THE OPPOSITE END OF THE STATUTORY SPECTRUM IS BOARD MEMBER
MURDOCK'S VIEW THAT SEC. 8(D) ONLY BARS STRIKES AT TERMINATION, LEAVING
UNIONS FREE TO STRIKE WITHOUT ANY NOTICE WHATSOEVER PRIOR TO THE LAST
SIXTY DAYS OF THE CONTRACT.  IGNORING THE INTRODUCTORY PARAGRAPH OF THE
PROVISO, WHICH STATES:  "WHERE THERE IS IN EFFECT A COLLECTIVE
BARGAINING CONTRACT  ...  NO PARTY TO SUCH CONTRACT SHALL TERMINATE OR
MODIFY SUCH CONTRACT, UNLESS  ...  ," MR. MURDOCK URGED THAT THE REST
OF THE PROVISO CONTEMPLATES THE SITUATION "AROUND" THE CONTRACT'S
"EXPIRATION DATE," WHICH HE DEFINED AS TERMINATION DATE.  FROM THIS HE
INFERRED THAT SEC. 8(D) ONLY REGULATES CONDUCT DURING THIS PERIOD. 

IF MR. MURDOCK READ "EXPIRATION" TO INCLUDE REOPENING, HIS CLAIM TO
HAVE RESOLVED SEC.  8(D)'S LOGICAL INCONSISTENCIES WOULD BE MORE
PERSUASIVE.  THE DIFFICULTY OF HIS POSITION IS MADE MANIFEST BY THE
LAST PART OF THE PENULTIMATE SENTENCE OF SEC. 8(D), WHICH CLEARLY
IMPLIES THAT THE SUBSECTION APPLIES TO MODIFICATIONS UNDER A REOPENING
CLAUSE.  THE STATEMENT OF SENATOR BALL, A LEADING PROPONENT OF SEC.
8(D), THAT "OURS IS A VERY MILD PROVISION, WHICH MERELY SAYS TO UNIONS,
'YOU MUST HAVE A 60-DAY REOPENING CLAUSE IN YOUR CONTRACT'," 93 CONG.
REC. 7530, AND SEC. 8(D)'S SUBSEQUENT LEGISLATIVE HISTORY, ERASE ANY
DOUBT THAT IT WAS INTENDED TO OPERATE AT LEAST AT REOPENING AS WELL AS
AT TERMINATION. 

EVEN AS THUS REVISED THE MURDOCK VIEW IS AN ARTIFACT.  IT WOULD
PERMIT A UNION, IN AN EFFORT TO FORCE CHANGES IN ITS CONTRACT, TO STOP
WORK WITHOUT WARNING AT ANY TIME EXCEPT DURING THE LAST SIXTY DAYS OF
THE PERIOD FIXED BY CONTRACT AND TO REMAIN OUT FOR THE LENGTH OF THE
PERIOD SHORT OF ITS LAST SIXTY DAYS.  YET MR. MURDOCK MENTIONED NO
FACTORS THAT WOULD HAVE MADE CONGRESS SO CONCERNED ABOUT STRIKES AT
EXPIRATION AS TO LAY DOWN ELABORATE PROCEDURES APPLICABLE THERETO AND
SO UNCONCERNED ABOUT STRIKES PRIOR TO THE EXPIRATION PERIOD AS TO
IGNORE THEM.  THE LEGISLATIVE HISTORY, ON THE OTHER HAND, MAKES CLEAR
THAT THE DOMINANT PURPOSE OF CONGRESS IN PASSING SEC. 8(D) WAS ONE THAT
IS APPLICABLE TO STRIKES AT BOTH TIMES - TO PREVENT THE DAMAGING
EFFECTS OF STRIKES WITHOUT WARNING AND TO ALLOW A COOLING-OFF PERIOD
DURING WHICH DIFFERENCES MIGHT BE DISCUSSED, MEDIATED AND RESOLVED. 
SEE, E.G., 93 CONG. REC. 3839, 5005, 5014.  IF ANYTHING, SEC. 8(D)'S
APPLICATION WOULD APPEAR MORE NECESSARY BETWEEN EXPIRATION PERIODS THAN
DURING THEM, SINCE THE PARTIES HAVE BY THEIR CONTRACT WARNED EACH OTHER
OF THE POSSIBILITY OF WORK STOPPAGE AT THE LATTER TIMES. 

IT IS SIGNIFICANT ALSO THAT THE 1948 REPORT OF THE JOINT COMMITTEE ON
LABOR-MANAGEMENT RELATIONS, S. REP. NO. 986, 80TH CONG., 2D SESS. 62
(1948), WHICH STATED THAT SEC. 8(D) WAS SUBJECT TO THREE
INTERPRETATIONS, DID NOT MENTION MR. MURDOCK'S AMONG THEM.  MOREOVER,
SINCE THE CLARIFYING AMENDMENT PROPOSED BY THE COMMITTEE WAS DESIGNED
TO PRECLUDE THE POSSIBILITY THAT SEC. 8(D) MIGHT BE CONSTRUED TO PERMIT
STRIKES AT ANY TIME PRIOR TO REOPENING UPON SIXTY DAYS' NOTICE, THE
COMMITTEE MUST HAVE REJECTED, A FORTIORI, THE POSSIBILITY THAT SEC.
8(D) PERMITTED STRIKES AT ANY TIME PRIOR TO REOPENING IN THE ABSENCE OF
SUCH NOTICE.  THE MURDOCK VIEW WAS ALSO REJECTED BY THE BOARD'S GENERAL
COUNSEL SHORTLY AFTER THE ACT'S PASSAGE.  HE ISSUED A COMPLAINT IN THE
WILSON CASE, SUPRA, EVEN THOUGH THE STRIKE OCCURRED MORE THAN NINE
MONTHS BEFORE THE CONTRACT'S REOPENING DATE.  SEE 89 N.L.R.B. 310, 317,
AND S. REP. NO. 986, 80TH CONG., 2D SESS. 62 (1948). 

MR. MURDOCK POINTED OUT THAT THE SENATE REPORT ON THE TAFT-HARTLEY
BILL STATED, WITH RESPECT TO SEC. 301, THAT A NO-STRIKE CLAUSE WAS
SOMETHING TO BE BARGAINED FOR, S. REP. NO. 105, 80TH CONG., 1ST SESS.
17-18, AND HE REASONED THAT IT WOULD NOT HAVE SAID THIS "IF IT HAD BEEN
INTENDED TO REMOVE NO-STRIKE PROVISIONS FROM THE REALM OF COLLECTIVE
BARGAINING  ...  ."  THIS ARGUMENT WOULD HAVE FORCE AGAINST AN
INTERPRETATION WHICH ACTUALLY DOES REMOVE SUCH PROVISIONS FROM
BARGAINING.  SECTION 8(D), HOWEVER, HAS NO EFFECT ON WHETHER UNIONS MAY
VALIDLY STRIKE OVER NON-BARGAINING MATTERS.  SEE MASTRO PLATICS CORP.
V. LABOR BOARD, 350 U.S. 270.  NOR DOES IT RENDER OBSOLETE UNION
PLEDGES NOT TO RESORT TO BARGAINING STRIKES AT REOPENING, IF THE
PRESENT BOARD'S INTERPRETATION IS CORRECT, OR AT ANY TIME AFTER SIXTY
DAYS' NOTICE, IF THE VIEW OF THE FORMER BOARD PREVAILS.  IN ANY EVENT,
THIS STATEMENT FROM THE COMMITTEE REPORT ON ANOTHER SECTION OF THE BILL
PROVIDES A FLIMSY BASIS FOR FRUSTRATING THE OFT-EXPRESSED LEGISLATIVE
PURPOSE OF PREVENTING "QUICKIE" STRIKES. 

THE QUESTION REMAINS WHETHER THE OLD BOARD'S INTERPRETATION IS MORE
PERSUASIVE THAN THAT OF THE PRESENT BOARD.  THE STATUTORY LANGUAGE
POINTS TOWARD THE LATTER VIEW - THAT SEC. 8(D) NOT ONLY PROSCRIBES
STRIKES ON LESS THAN SIXTY DAYS' NOTICE BUT ALSO FORBIDS STRIKES PRIOR
TO REOPENING OR TERMINATION.  SECTION 8(D)(1) REQUIRES THE PARTY
PROPOSING A CHANGE IN THE CONTRACT TO GIVE SIXTY DAYS' NOTICE PRIOR TO
"EXPIRATION," THEREBY IMPLYING THAT THE PROPOSED CHANGE WILL NOT TAKE
PLACE UNTIL THAT TIME.  ONLY IN THE EVENT THE CONTRACT CONTAINS NO
EXPIRATION DATE DOES THIS SUBSECTION PROVIDE FOR NOTICE "SIXTY DAYS
PRIOR TO THE TIME IT IS PROPOSED TO MAKE SUCH TERMINATION OR
MODIFICATION; ...  ."  SECTION 8(D)(4) EXPLICITLY PROSCRIBES STRIKES
"FOR A PERIOD OF SIXTY DAYS AFTER SUCH NOTICE (THAT PROVIDED FOR IN
(1)) IS GIVEN OR UNTIL THE EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER
OCCURS LATER."  AND THE LAST PART OF SEC. 8(D)'S PENULTIMATE SENTENCE
PROVIDES FURTHER EVIDENCE THAT CONGRESS CONTEMPLATED MODIFICATION OF
THE CONTRACT'S TERMS ONLY AT REOPENING.  THE LOSS-OF-STATUS CLAUSE
ALONE IS MORE FAVORABLE TO THE FORMER BOARD'S VIEW, SINCE IT SPEAKS OF
"THE SIXTY-DAY PERIOD SPECIFIED IN THIS SUBSECTION," AND, TO BE
EFFECTIVE UNDER THE PRESENT BOARD'S CONSTRUCTION, THIS CLAUSE HAS TO BE
UNDERSTOOD AS READING "THE PERIOD SPECIFIED IN PARAGRAPH (4)."  SINCE
THE PROBLEM BEFORE US WAS NOT ANTICIPATED, IT IS NOT SURPRISING THAT
SEC. 8(D)'S LEGISLATIVE HISTORY OFFERS LITTLE DIRECT EVIDENCE THAT
CONGRESS DID MORE THAN REQUIRE A SIXTY-DAY WAITING PERIOD PRIOR TO
BARGAINING STRIKES.  WHEN THE JOINT COMMITTEE DID NOTE THE PROBLEM IN
1948, HOWEVER, IT ADOPTED THE PRESENT BOARD'S VIEW OF THE STATUTE AND
NOT THAT OF THE OLD BOARD.  THE LIGHT WHICH THIS SUBSEQUENT HISTORY
SHEDS ON THE AMBIGUITY REINFORCES THE PRESENT BOARD'S CONSTRUCTION AS
THE MORE PERSUASIVE INTERPRETATION OF SEC. 8(D). 

AS THE COURT'S OPINION HOLDS, SINCE THE UNION STRUCK MORE THAN SIXTY
DAYS AFTER GIVING NOTICE OF ITS DESIRE TO AMEND AND IN THE COURSE OF
NEGOTIATIONS PURSUANT TO THE CONTRACT'S REOPENING CLAUSE, THE COURT OF
APPEALS ERRED IN SETTING ASIDE THE BOARD'S ORDER ON THE GROUND THAT THE
STRIKE VIOLATED THE WAITING REQUIREMENTS OF SEC. 8(D). 

FN1  SECTION 10(F) SPECIFIES THAT THIS RULE SHALL APPLY WHERE
JUDICIAL REVIEW OF A BOARD ORDER IS OBTAINED BY AN AGGRIEVED PERSON. 

FN2  SENATOR TAFT'S FULL STATEMENT WAS: 

"WE HAVE PROVIDED IN THE REVISION OF THE COLLECTIVE-BARGAINING
PROCEDURE, IN CONNECTION WITH THE MEDIATION PROCESS, THAT BEFORE THE
END OF ANY CONTRACT, WHETHER IT CONTAINS SUCH A PROVISION OR NOT,
EITHER PARTY WHO WISHES TO OPEN THE CONTRACT MAY GIVE 60 DAYS' NOTICE
IN ORDER TO AFFORD TIME FOR FREE COLLECTIVE BARGAINING, AND THEN FOR
THE INTERVENTION OF THE MEDIATION SERVICE.  IF SUCH NOTICE IS GIVEN,
THE BILL PROVIDES FOR NO WAITING PERIOD EXCEPT DURING THE LIFE OF THE
CONTRACT ITSELF.  IF, HOWEVER, EITHER PARTY NEGLECTS TO GIVE SUCH
NOTICE AND WAITS, LET US SAY, UNTIL 30 DAYS BEFORE THE END OF THE
CONTRACT TO GIVE THE NOTICE, THEN THERE IS A WAITING PERIOD PROVIDED
DURING WHICH THE STRIKE IS AN UNLAWFUL LABOR PRACTICE FOR 60 DAYS FROM
THAT TIME, OR TO THE END OF THE CONTRACT AND 30 DAYS BEYOND THAT TIME. 
IN THAT CASE THERE IS A SO-CALLED WAITING PERIOD DURING WHICH A STRIKE
IS ILLEGAL, BUT IT IS ONLY BROUGHT ABOUT BY THE FAILURE OF THE UNION
ITSELF TO GIVE THE NOTICE WHICH THE BILL REQUIRES SHALL BE GIVEN.  SO
IT SEEMS TO ME TO BE NO REAL LIMITATION OF THE RIGHTS OF LABOR
UNIONS."  93 CONG. REC. 3839. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

I JOIN IN SO MUCH OF THE COURT'S OPINION AS RELATES TO THE
CONSTRUCTION OF SEC. 8(D), AGREEING WITH THE CHIEF JUSTICE'S REASONING
AND MR. JUSTICE FRANKFURTER'S FURTHER AMPLIFICATION OF THAT PROBLEM. 
BUT I DISSENT FROM THAT PART OF THE COURT'S OPINION WHICH DISMISSES
RESPONDENT'S BREACH OF CONTRACT DEFENSE.  THAT QUESTION WAS NEVER
PASSED ON BY THE COURT OF APPEALS, AND I THINK THAT OUR REMAND SHOULD
LEAVE IT OPEN FOR THE COURT OF APPEALS TO DECIDE IN THE FIRST
INSTANCE.  FURTHER, I FIND THE COURT'S OPINION UNCLEAR AS TO WHETHER
THE COURT OF APPEALS IS LIKEWISE FORECLOSED FROM NOW DEALING WITH THE
SUFFICIENCY OF THE EVIDENCE AS TO THE UNFAIR LABOR PRACTICE CHARGE
AGAINST RESPONDENT - A QUESTION WHICH THE COURT OF APPEALS ALSO DID NOT
REACH BECAUSE OF ITS VIEWS ON SEC. 8(D) - AND I THINK THAT QUESTION,
TOO, SHOULD BE LEFT OPEN FOR THE COURT OF APPEALS ON REMAND. 

THIS IS THE FOURTH TIME THIS TERM THAT THE COURT HAS PASSED ON
QUESTIONS WHICH THE COURT BELOW NEVER REACHED.  SEE MESAROSH V. UNITED
STATES, 352 U.S. 1; (FN1) THOMPSON V. COSTAL OIL CO., 352 U.S. 862;
(FN2) GIBSON V. PHILLIPS PETROLEUM CO., 352 U.S. 874.  (FN3)  I THINK
THIS PRACTICE IS AN UNFORTUNATE ONE, DEPRIVING THIS COURT, AS IT DOES,
OF THE CONSIDERED VIEWS OF THE LOWER COURTS.  ITS DANGERS ARE
PARTICULARLY APPARENT IN THE PRESENT CASE.  AS MY BROTHER FRANKFURTER
POINTS OUT, THERE IS AT LEAST SOME QUESTION AS TO WHETHER RESPONDENT
EVER RAISED ITS BREACH OF CONTRACT DEFENSE BEFORE THE NATIONAL LABOR
RELATIONS BOARD.  AND ON THE MERITS THE QUESTION IS AN UNUSUAL ONE
BECAUSE OF THE ATYPICAL NATURE OF THIS CONTRACT, AND SURELY REQUIRES
FOR ITS RELIABLE ADJUDICATION MUCH SHARPER CONSIDERATION THAN IT IS
POSSIBLE FOR THIS COURT TO GIVE IT HERE AS AN ORIGINAL MATTER.  INDEED,
THE NATURE OF THE QUESTION IS SUCH THAT THE COURT OF APPEALS MIGHT WELL
CONCLUDE THAT THE ISSUE SHOULD BE REFERRED TO THE BOARD FOR ITS EXPERT
VIEWS IN THE FIRST INSTANCE.    THIS KIND OF ORIGINAL ADJUDICATION BY
THIS COURT IS NOT WHAT LITIGANTS HAVE A RIGHT TO EXPECT.  MOREOVER, TO
DECIDE QUESTIONS WHICH, AS HERE, HAVE BEEN RAISED IN THE PETITION FOR
CERTIORARI OFFENDS OUR OWN RULES.  (FN4)  THERE WILL NO DOUBT BE CASES
WHERE REMAND IS NOT JUSTIFIED BECAUSE THE QUESTIONS LEFT OPEN BY THE
LOWER COURT ARE MANIFESTLY INSUBSTANTIAL.  IT SEEMS TO ME THAT IN SUCH
INSTANCES THIS COURT SHOULD STATE THAT IT IS NOT REMANDING FOR THAT
REASON, INSTEAD OF PROCEEDING AS A MATTER OF COURSE TO DECIDE THE
QUESTIONS ITSELF, EITHER EXPRESSLY OR SUB SILENTIO.  THE LATTER
PROCEDURE CAN ONLY HAVE A TENDENCY TO LEAD THIS COURT, AS HERE, TO
DECIDE QUESTIONS WHICH IT SHOULD NOT PASS UPON IN THE FIRST INSTANCE,
AND IN MY OPINION REPRESENTS UNSOUND JUDICIAL ADMINISTRATION. 

FN1  THIS COURT GRANTED THE DEFENDANTS A NEW TRIAL ON THE GROUND THAT
THEIR CONVICTION WAS TAINTED BY PROSECUTION EVIDENCE SUSPECTED TO BE
PERJURIOUS.  NEITHER THE TRIAL COURT NOR THE COURT OF APPEALS HAD
PASSED ON THIS QUESTION, AND THERE HAD BEEN NO INVESTIGATION AS TO THE
RELIABILITY OF THE TESTIMONY OR ITS PRECISE BEARING ON THE CASE. 

FN2  THE COURT OF APPEALS REVERSED A JUDGMENT FOR THE PLAINTIFF IN AN
UNSEAWORTHINESS CASE ON THE GROUND THAT PLAINTIFF HAD SIGNED A VALID
RELEASE.  THIS COURT REVERSED, HOLDING THE RELEASE INVALID, AND
REINSTATED THE JUDGMENT OF THE DISTRICT COURT.  THE COURT OF APPEALS
THEREFORE NEVER HAD AN OPPORTUNITY TO PASS ON THE OTHER POINTS RAISED
BY THE DEFENDANT ON ITS APPEAL, MAINLY THE QUESTION WHETHER THERE WAS
SUFFICIENT EVIDENCE FOR THE FINDING THAT THE VESSEL WAS UNSEAWORTHY. 

FN3  THE COURT OF APPEALS HAD HELD THAT AS A MATTER OF TEXAS LAW
PLAINTIFF WAS BARRED FROM RECOVERY BY HIS OWN CONTRIBUTORY NEGLIGENCE. 
THIS COURT REVERSED AND REINSTATED THE JUDGEMENT OF THE DISTRICT
COURT.  AGAIN, THE COURT OF APPEALS HAD NO OPPORTUNITY TO PASS ON
ALLEGED ERRORS OF THE TRIAL COURT IN INSTRUCTING THE JURY, THAT COURT
NOT HAVING REACHED THOSE QUESTIONS ON THE INITIAL APPEAL. 

FN4  RULE 23, 1(C), REVISED RULES. 
..END :



UNITED STATES V. ALLEN-BRADLEY CO. 352 U.S. 306 


NO. 78.  ARGUED DECEMBER 13, 1956 - DECIDED JANUARY 22, 1957 - 134 CT.
CL. 800, REVERSED. 


UNDER SEC. 124(F) OF THE INTERNAL REVENUE CODE OF 1939, AS AMENDED,
THE WAR PRODUCTION BOARD HAD AUTHORITY TO CERTIFY THAT ONLY A PART OF
THE COST OF ESSENTIAL WARTIME EXPANSION OF PRODUCTION FACILITIES OF A
PRIVATE MANUFACTURER WAS "NECESSARY IN THE INTEREST OF NATIONAL
DEFENSE," SO AS TO BE AMORTIZABLE WITHIN FIVE YEARS OR LESS UNDER SECS.
23(T) AND 124 FOR INCOME-TAX PURPOSES.  PP. 306-311. 

UNITED STATES V. ALLEN-BRADLEY CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1940 THIS COUNTRY EMBARKED ON THE GREATEST PROGRAM OF DEFENSE
PREPAREDNESS IN ITS HISTORY.  SUCH AN UNDERTAKING CALLED FOR A VAST
EXPANSION OF THE NATION'S INDUSTRIAL CAPACITY.  NEW AND IMPROVED
FACILITIES WERE DESPERATELY NEEDED, NOT ONLY FOR THE PRODUCTION OF
GUNS, PLANES AND THE OBVIOUS WEAPONS OF WAR, BUT ALSO FOR THE
INNUMERABLE ITEMS THAT ARE ESSENTIAL TO THE PROSECUTION OF LARGE-SCALE
CONFLICT.  THIS UNPRECEDENTED PROGRAM OF EXPANSION DEMANDED THE FULL
AND IMMEDIATE COOPERATION OF EVERYONE WHO COULD LEND ASSISTANCE.  WHILE
THE GOVERNMENT ATTEMPTED TO SECURE THE NECESSARY FACILITIES BY BUILDING
THEM ITSELF OR BY EXTENDING EMERGENCY CONSTRUCTION LOANS TO PRIVATE
BUSINESS, IT SOON APPEARED THAT THESE METHODS WOULD NOT BE ADEQUATE TO
MEET THE NEEDS OF DEFENSE.  PRIVATE CAPITAL WAS CALLED ON FOR
ASSISTANCE IN THE TASK.  HOWEVER BUSINESS EXHIBITED A RELUCTANCE TO
BUILD NEW WAR PLANTS BECAUSE OF WIDESPREAD FEARS THAT SUCH FACILITIES
WOULD BECOME WHOLLY USELESS WHEN THE EMERGENCY HAD PASSED.  IN RESPONSE
TO THESE FEARS, CONGRESS ACTED TO LESSEN THE FINANCIAL RISKS INVOLVED
IN THE PRIVATE CONSTRUCTION OF EMERGENCY FACILITIES.  AMONG OTHER
THINGS IT AMENDED THE 1939 INTERNAL REVENUE CODE BY ADDING SECS. 23(T)
AND 124, (FN1) WHICH ALLOWED BUSINESS TO WRITE OFF THE COST OF NEW
FACILITIES AS A DEDUCTION AGAINST TAXABLE INCOME WITHIN A PERIOD OF
FIVE YEARS OR LESS, REGARDLESS OF THE ACTUAL ECONOMIC LIFE OF THE
FACILITIES, PROVIDED THEY HAD BEEN CERTIFIED BY THE PROPER EXECUTIVE
AGENCY AS "NECESSARY IN THE INTEREST OF NATIONAL DEFENSE."  THIS
ACCELERATED AMORTIZATION PRIVILEGE GENERALLY ENABLED THOSE BUSINESSES
RECEIVING IT TO REDUCE THEIR FEDERAL INCOME TAXES WITH THE NET RESULT
THAT A LARGE PART OF THE CONSTRUCTION COSTS WAS, AT LEAST TEMPORARILY,
BORNE BY THE FEDERAL GOVERNMENT THROUGH A REDUCTION IN ITS TAX
RECEIPTS. 

THIS CASE INVOLVES A QUESTION OF THE PROPER INTERPRETATION OF SEC.
124(F), A VITAL PART OF THESE ACCELERATED AMORTIZATION PROVISIONS.  THE
ESSENTIAL FACTS ARE NOT IN DISPUTE.  DURING THE SECOND WORLD WAR THE
RESPONDENT ALLEN-BRADLEY COMPANY PRODUCED RADIO PARTS AND OTHER
MATERIALS NEEDED BY THE GOVERNMENT TO CARRY ON THE WAR.  THESE PRODUCTS
WERE IN CRITICALLY SHORT SUPPLY AND AT THE REQUEST OF GOVERNMENT
PROCUREMENT OFFICERS RESPONDENT REPEATEDLY INCREASED AND IMPROVED ITS
FACILITIES IN ORDER TO BOOST ITS OUTPUT.  IN CONNECTION WITH SUCH
EXPANSIONS IT APPLIED TO THE WAR PRODUCTION BOARD, WHICH WAS THEN THE
CERTIFYING AUTHORITY, FOR CERTIFICATES THAT THE IMPROVEMENTS WERE
NECESSARY TO THE NATIONAL DEFENSE.  THE BOARD ISSUED NINE DIFFERENT
CERTIFICATES OF NECESSITY TO RESPONDENT BUT THE DISPUTE HERE INVOLVES
ONLY THREE OF THESE CERTIFICATES.  EACH OF THESE THREE STATED THAT THE
FACILITIES COVERED BY IT WERE NECESSARY IN THE INTEREST OF NATIONAL
DEFENSE BUT ONLY UP TO A SPECIFIED PERCENTAGE OF THEIR TOTAL COST. 
THIS "PARTIAL CERTIFICATION" WAS MADE PURSUANT TO A POLICY ADOPTED BY
THE BOARD IN 1943 THAT IT WOULD CERTIFY ESSENTIAL FACILITIES, WHICH
COULD REASONABLY BE EXPECTED TO HAVE PEACETIME UTILITY, ONLY TO THE
EXTENT THAT THEIR COSTS WERE ATTRIBUTABLE TO THE WARTIME INCREASE IN
PRICES.  RESPONDENT ACCEPTED THESE PARTIAL CERTIFICATIONS, PROCEEDED
WITH THE EXPANSION AND IN ITS TAX RETURNS FOR 1944 AND 1945 DEDUCTED AN
AMOUNT BASED ON THE ACCELERATED AMORTIZATION OF THAT PART OF THE TOTAL
COST WHICH HAD BEEN CERTIFIED BY THE BOARD. 

IN 1953 RESPONDENT FIRST RAISED THE CLAIM WHICH IS THE BASIS OF THIS
SUIT THAT THE BOARD HAD NO AUTHORITY TO CERTIFY ONLY PART OF THE COST
OF A NECESSARY EMERGENCY FACILITY.  RESPONDENT CONCEDES THAT THE BOARD
HAD DISCRETION TO REFUSE TO ISSUE ANY CERTIFICATE AT ALL, BUT CONTENDS
THAT ONCE IT DECIDED THAT A FACILITY WAS NECESSARY TO THE NATIONAL
DEFENSE ITS FUNCTION WAS AT AN END AND THAT ANY ATTEMPT BY IT TO LIMIT
THE CERTIFICATION TO A PART OF THE COST OF SUCH FACILITY WAS A
NULLITY.  THEREFORE, RESPONDENT CONTENDS, IT WAS ENTITLED TO ACCELERATE
THE AMORTIZATION OF THE FULL COST OF THOSE FACILITIES COVERED BY THE
THREE PARTIAL CERTIFICATES AND NOT JUST THAT PART OF THE FULL COST
WHICH HAD BEEN CERTIFIED BY THE BOARD.  ON THE BASIS OF THESE
CONTENTIONS RESPONDENT FILED THE PRESENT ACTION IN THE COURT OF CLAIMS
TO RECOVER AN ALLEGED OVERPAYMENT OF ITS 1944 AND 1945 INCOME TAXES. 
THE COURT OF CLAIMS ACCEPTED RESPONDENT'S ARGUMENTS AND RENDERED
JUDGMENT FOR IT.  134 CT. CL. 800.  WE GRANTED CERTIORARI, 351 U.S.
981, BECAUSE OF THE CONFLICT BETWEEN THIS DECISION AND THAT OF THE
COURT OF APPEALS FOR THE SECOND CIRCUIT IN COMMISSIONER V. NATIONAL
LEAD CO., 230 F.2D 161. 

THE LANGUAGE OF THE CRUCIAL SECTION 124(F) IS AMBIGUOUS.  IT
SPECIFIES THAT IN DETERMINING THE AMOUNT OF THE WARTIME CONSTRUCTION
COSTS WHICH ARE TO BE AVAILABLE FOR THE SPECIAL AMORTIZATION
PRIVILEGE: 

"(1)  THERE SHALL BE INCLUDED ONLY SO MUCH OF THE AMOUNT  ...  AS IS
PROPERLY ATTRIBUTABLE TO SUCH CONSTRUCTION  ...  AFTER DECEMBER 31,
1939, AS THE WAR PRODUCTION BOARD HAS CERTIFIED AS NECESSARY IN THE
INTEREST OF NATIONAL DEFENSE DURING THE EMERGENCY PERIOD  ...  ." 

RESPONDENT ARGUES THAT THE PHRASE "ONLY SO MUCH OF THE AMOUNT" IN
THIS SECTION REFERS SIMPLY TO THAT PART OF THE COST OF FACILITIES THAT
IS ATTRIBUTABLE TO CONSTRUCTION AFTER 1939.  ON THE OTHER HAND THE
GOVERNMENT CONTENDS THAT THIS QUALIFYING PHRASE REFERS NOT ONLY TO
THOSE COSTS INCURRED AFTER 1939, BUT ALSO TO THAT PORTION OF THOSE
COSTS WHICH THE WAR PRODUCTION BOARD HAS CERTIFIED IS NECESSARY TO THE
NATIONAL DEFENSE.  WE BELIEVE THAT EITHER INTERPRETATION IS POSSIBLE;
THAT NEITHER IS COMPELLED.  BUT THOSE WHO WERE RESPONSIBLE FOR THE
ADMINISTRATION OF THE ACT CONSISTENTLY INTERPRETED SEC. 124(F) AS
AUTHORIZING THEM TO CERTIFY THAT ONLY A PART OF THE COSTS OF
CONSTRUCTION AFTER 1939 WAS NECESSARY TO THE NATIONAL DEFENSE.  (FN2) 

THE LEGISLATIVE HISTORY SHOWS THAT CONGRESS INTENDED THAT THE
ADMINISTRATORS OF THE CERTIFICATION PROGRAM WERE TO HAVE BROAD
DISCRETION IN EXERCISING THEIR POWER.  THESE ADMINISTRATORS WERE FACED
WITH EXTREMELY COMPLICATED PROBLEMS IN ATTEMPTING TO ACCOMPLISH THE
DESIRED OBJECTIVE OF CONGRESS IN THE FACE OF CONSTANT AND DRASTIC
CHANGES IN CONDITIONS.  AND AS THE NATION'S INDUSTRIAL CAPACITY BECAME
MORE ADEQUATE THEY CAREFULLY BALANCED THE NEED FOR THE PROPOSED
EXPANSION AGAINST THE LOSS OF REVENUE TO THE GOVERNMENT CAUSED BY
ACCELERATED AMORTIZATION BEFORE ISSUING A CERTIFICATE.  THE POWER TO
CERTIFY ONLY A PORTION OF THE COST GAVE THEM A MORE FLEXIBLE INSTRUMENT
TO BALANCE THESE CONFLICTING OBJECTIVES. 

IT APPEARS THAT CONGRESS KEPT CLOSE SUPERVISION OVER THE
CERTIFICATION PROGRAM AND THE SPECIAL AMORTIZATION PRIVILEGE.  FOR
EXAMPLE, SEC. 124 WAS AMENDED FIVE TIMES DURING THE WAR; (FN3) TWO OF
THESE AMENDMENTS ALTERED SEC. 124(F) ITSELF IN A MANNER WHICH DID NOT
AFFECT THE LANGUAGE DECISIVE OF THE PRESENT CONTROVERSY.  BUT NO
ATTEMPT WAS MADE TO RESTRAIN THE ADMINISTRATORS FROM ISSUING
CERTIFICATES COVERING ONLY A PART OF THE COST OF NECESSARY FACILITIES,
ALTHOUGH IT SEEMS APPARENT THAT RESPONSIBLE COMMITTEES OF CONGRESS WERE
AWARE THAT SEC. 124(F) HAD BEEN CONSISTENTLY INTERPRETED AND APPLIED BY
THE CERTIFYING AUTHORITIES AS PERMITTING THEM TO ISSUE SUCH
CERTIFICATIONS.  IN FACT A SPECIAL SENATE "WATCH-DOG" COMMITTEE WAS
ESTABLISHED TO CONTINUALLY STUDY AND INVESTIGATE THE PROGRAM FOR
CONSTRUCTION OF WAR PLANTS AND FACILITIES INCLUDING THE "  ... BENEFITS
ACCRUING TO CONTRACTORS WITH RESPECT TO AMORTIZATION FOR THE PURPOSES
OF TAXATION OR OTHERWISE  ...  ."  (FN4) 

PERHAPS SEC. 124(F) COULD HAVE BEEN CONSTRUCTED DIFFERENTLY.  BUT IT
WAS NOT.  CONSTRUED AS IT WAS, IT SERVED ITS PURPOSE.  IT CONTRIBUTED
MATERIALLY TO THE PHENOMENAL EXPANSION OF OUR INDUSTRIAL PLANTS WHICH
WAS SO NECESSARY FOR SUCCESSFUL PROSECUTION OF THE WAR.  CERTIFICATES
ISSUED FOR ONLY A PORTION OF THE COST OF NECESSARY FACILITIES WERE
ACCEPTED BY BUSINESS IN GENERAL, AND RESPONDENT IN PARTICULAR -
APPARENTLY WITHOUT SUBSTANTIAL OBJECTION.  THE TECHNIQUE EMPLOYED IN
SEC. 124(F) WAS A NEW ONE AND THOSE WHO DRAFTED THAT SECTION COULD NOT
BE CERTAIN HOW IT WOULD WORK IN PRACTICE.  THEY COULD NOT FORESEE THE
MANY PROBLEMS THAT WOULD ARISE IN THE ADMINISTRATION OF THIS SWEEPING
POWER WHICH COULD BE USED TO ENCOURAGE EXPANSION OF ANY INDUSTRY
PRODUCING MATERIALS USEFUL IN THE ALL-OUT WAR EFFORT.  THEREFORE IT IS
NOT STRANGE THAT THE PROVISION WAS LOOSELY DRAWN AND, IN SOME RESPECTS,
IMPRECISE.  HOWEVER, IT WOULD HAVE BEEN STRANGE IN THESE CIRCUMSTANCES
IF CONGRESS HAD EMBARKED ON THIS NEW COURSE WITHOUT LEAVING WIDE
DISCRETION FOR FLEXIBLE ADMINISTRATION IN THE LIGHT OF THE DAY-TO-DAY
GRIND OF EXPERIENCE.  THE LANGUAGE OF SEC. 124(F) LENDS ITSELF TO SUCH
FLEXIBILITY. 

WE HOLD THAT THE BOARD HAD AUTHORITY UNDER SEC. 124(F) TO ISSUE
CERTIFICATES, AS IN THIS CASE, CERTIFYING THAT ONLY A PART OF THE COST
OF ESSENTIAL WARTIME IMPROVEMENTS WAS NECESSARY TO THE NATIONAL
DEFENSE.  THEREFORE, THE JUDGMENT OF THE COURT OF CLAIMS MUST BE
REVERSED.  IT IS SO ORDERED. 

FN1  54 STAT. 998-1003, AS AMENDED, 26 U.S.C. SECS. 23(T), 124. 

FN2  SEE WAR DEPARTMENT REGULATIONS, ISSUANCE OF NECESSITY
CERTIFICATES, 7 FED. REG. 4233 (1942); WAR PRODUCTION BOARD
REGULATIONS, ISSUANCE OF NECESSITY CERTIFICATES, 8 FED. REG.  16964
(1943).  AND COMPARE TREAS. REG. 111, SEC. 29.124-6. 

FN3  55 STAT. 4, 55 STAT. 757, 56 STAT. 50, 56 STAT. 850 AND 59 STAT.
525. 

FN4  S. RES. 71, 77TH CONG., 1ST SESS. (87 CONG. REC. 1615), AND S.
RES. 6, 78TH CONG., 1ST SESS. (89 CONG. REC. 331). 

MR. JUSTICE HARLAN, CONCURRING. 

BOTH THE TERMS OF THE STATUTE, AND THE FACT THAT TWO COURTS OF SUCH
SPECIAL EXPERTISE IN TAX MATTERS AS THE TAX COURT AND COURT OF CLAIMS
HAVE SUSTAINED THE TAXPAYER'S POSITION, (FN1) LEAVE ME DOUBTFUL AS TO
WHETHER, UNDER THE STATUTORY PROVISIONS IN QUESTION, (FN2) THE WAR
PRODUCTION BOARD HAD THE RIGHT TO ISSUE PARTIAL CERTIFICATES.  THE
COURT FINDS AMBIGUITY IN THE STATUTE, BUT, IN RESOLVING THAT AMBIGUITY
AS IT HAS, DOES LITTLE MORE THAN POINT OUT THAT CONGRESS DID NOT
INTERFERE WITH THE AUTHORITY CLAIMED BY THE BOARD. 

HOWEVER, IN MY VIEW THE SCOPE OF THE BOARD'S POWERS NEED NOT BE
REACHED IN THIS CASE, BECAUSE, FOR THE REASONS GIVEN BY JUDGE LUMBARD
IN HIS OPINION FOR THE UNANIMOUS COURT OF APPEALS IN COMMISSIONER V.
NATIONAL LEAD CO., 230 F.2D 161, I THINK IT CLEAR THAT RESPONDENT
CANNOT MAINTAIN THE PRESENT ACTION.  ON THAT BASIS I JOIN IN THE
COURT'S DECISION. 

FN1  NATIONAL LEAD CO. V. COMMISSIONER, 23 T.C. 988; ALLEN-BRADLEY
CO. V. UNITED STATES, 134 CT. CL. 800. 

FN2  26 U.S.C. SEC. 124(F)(1), FROM WHICH THE COURT QUOTES, MUST BE
READ IN CONTEXT WITH 26 U.S.C. SECS. 124(E)(1) AND 124(F)(3).  TOGETHER
THESE SECTIONS PROVIDE:

SEC. 124(E)(1).  "AS USED IN THIS SECTION, THE TERM 'EMERGENCY
FACILITY' MEANS ANY FACILITY, LAND, BUILDING, MACHINERY, OR EQUIPMENT,
OR PART THEREOF, THE CONSTRUCTION, RECONSTRUCTION, ERECTION,
INSTALLATION, OR ACQUISITION OF WHICH WAS COMPLETED AFTER DECEMBER 31,
1939, AND WITH RESPECT TO WHICH A CERTIFICATE UNDER SUBSECTION (F) HAS
BEEN MADE  ...  ." 

SEC. 124(F).  "IN DETERMINING, FOR THE PURPOSES OF SUBSECTION (A)
...  THE ADJUSTED BASIS OF AN EMERGENCY FACILITY: 

"(1)  THERE SHALL BE INCLUDED ONLY SO MUCH OF THE AMOUNT OTHERWISE
CONSTITUTING SUCH ADJUSTED BASIS AS IS PROPERLY ATTRIBUTABLE TO SUCH
CONSTRUCTION, RECONSTRUCTION, ERECTION, INSTALLATION, OR ACQUISITION
AFTER DECEMBER 31, 1939, AS EITHER THE SECRETARY OF WAR OR THE
SECRETARY OF THE NAVY HAS CERTIFIED AS NECESSARY IN THE INTEREST OF
NATIONAL DEFENSE DURING THE EMERGENCY PERIOD, WHICH CERTIFICATION SHALL
BE UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE
SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, WITH THE APPROVAL OF
THE PRESIDENT." 

SEC. 124(F)(3).  "  ...  IN NO EVENT AND NOTWITHSTANDING ANY OF THE
OTHER PROVISIONS OF THIS SECTION, NO AMORTIZATION DEDUCTION SHALL BE
ALLOWED IN RESPECT OF ANY EMERGENCY FACILITY FOR ANY TAXABLE YEAR: 

"(C)  UNLESS A CERTIFICATE IN RESPECT THEREOF UNDER PARAGRAPH (1)
SHALL HAVE BEEN MADE (I) PRIOR TO THE FILING OF THE TAXPAYER'S RETURN
FOR SUCH TAXABLE YEAR, OR PRIOR TO THE MAKING OF AN ELECTION ...  TO
TAKE THE AMORTIZATION DEDUCTION, OR (II) BEFORE DECEMBER 1, 1941,
WHICHEVER IS LATER  ... ." 

ON DECEMBER 17, 1943, THE POWERS UNDER THESE SECTIONS WERE
TRANSFERRED BY THE PRESIDENT TO THE WAR PRODUCTION BOARD. 
..END :














NATIONAL LEAD CO. V. COMMISSIONER OF INTERNAL REVENUE 352 U.S. 313 


NO. 124.  ARGUED DECEMBER 13, 1956 - DECIDED JANUARY 22, 1957 - 230 F.2D
161, AFFIRMED ON OTHER GROUNDS. 


UNDER SEC. 124(F) OF THE INTERNAL REVENUE CODE OF 1939, AS AMENDED,
THE WAR PRODUCTION BOARD HAD AUTHORITY TO CERTIFY THAT ONLY A PART OF
THE COST OF ESSENTIAL WARTIME EXPANSION OF PRODUCTION FACILITIES OF A
PRIVATE MANUFACTURER WAS "NECESSARY IN THE INTEREST OF NATIONAL
DEFENSE," SO AS TO BE AMORTIZABLE WITHIN FIVE YEARS OR LESS UNDER SECS.
23(T) AND 124 FOR INCOME-TAX PURPOSES.  PP. 313-314. 

NATIONAL LEAD CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 78, UNITED STATES V. ALLEN-BRADLEY
CO., ANTE, P. 306, WHICH WAS ALSO DECIDED TODAY.  DURING WORLD WAR II
PETITIONER MANUFACTURED ENGINE BEARINGS.  IN 1944 PETITIONER EXPANDED
ITS PLANT IN AN EFFORT TO INCREASE THE OUTPUT OF THESE ESSENTIAL WAR
PRODUCTS.  AT THE SAME TIME IT APPLIED TO THE WAR PRODUCTION BOARD FOR
CERTIFICATION THAT THE VARIOUS ADDITIONS WERE NECESSARY IN THE INTEREST
OF NATIONAL DEFENSE.  HOWEVER THE BOARD, AS IN ALLEN-BRADLEY, GRANTED
CERTIFICATES OF NECESSITY FOR ONLY A PART OF THE COST OF PETITIONER'S
NEW FACILITIES.  IN ITS INCOME TAX RETURN FOR 1944 PETITIONER EXERCISED
THE PRIVILEGE SUCH CERTIFICATION CONFERRED BY TAKING AS A DEDUCTION A
SUM BASED ON THE ACCELERATED AMORTIZATION OF THAT PART OF THE COSTS
WHICH HAD BEEN CERTIFIED BY THE BOARD. 

IN 1951 THE COMMISSIONER OF INTERNAL REVENUE ASSERTED A DEFICIENCY
AGAINST PETITIONER ON GROUNDS UNRELATED TO THE PRESENT CONTROVERSY. 
PETITIONER SUBSEQUENTLY FILED A PETITION FOR REDETERMINATION WITH THE
TAX COURT CLAIMING THAT IT WAS ENTITLED TO A REFUND FOR OVERPAYMENT OF
INCOME TAXES IN 1944.  THE AMOUNT OF THIS OVERPAYMENT WAS CALCULATED ON
THE BASIS THAT PETITIONER WAS ENTITLED TO ACCELERATE THE AMORTIZATION
OF THE FULL COST OF THOSE FACILITIES COVERED BY THE BOARD'S "PARTIAL
CERTIFICATIONS."  PETITIONER CONTENDS THAT THE BOARD WAS NOT AUTHORIZED
TO CERTIFY ONLY A PART OF THE COST OF A FACILITY WHEN THE BOARD HAD
DETERMINED THAT THE FACILITY AS A WHOLE WAS NECESSARY TO THE NATIONAL
DEFENSE.  THE TAX COURT GRANTED PETITIONER'S CLAIM, BUT ON APPEAL THE
SECOND CIRCUIT REVERSED, HOLDING THAT PETITIONER HAD FORFEITED ITS
RIGHT TO CHALLENGE THE BOARD'S ACTION BY WAITING TOO LONG AFTER
ACCEPTING THE TAX BENEFITS OF THE "PARTIAL CERTIFICATES" TO ATTACK
THEIR VALIDITY.  230 F.2D 161.  THE COURT OF APPEALS DID NOT REACH THE
QUESTION WHETHER THE BOARD WAS AUTHORIZED TO ISSUE SUCH "PARTIAL
CERTIFICATES."  FOR REASONS STATED IN OUR OPINION IN NO. 78, UNITED
STATES V. ALLEN-BRADLEY CO., SUPRA, WE HOLD THAT THE BOARD WAS
EMPOWERED TO ISSUE CERTIFICATES COVERING ONLY A PART OF THE COST OF
PETITIONER'S IMPROVEMENTS.  ACCORDINGLY, WE AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS.  AFFIRMED. 

MR. JUSTICE HARLAN JOINS IN THE COURT'S DECISION FOR THE REASONS
STATED IN HIS CONCURRING OPINION IN UNITED STATES V. ALLEN-BRADLEY CO.,
ANTE, P. 311. 
..END :
















FIKES V. ALABAMA 352 U.S. 191 


NO. 53.  ARGUED DECEMBER 6, 1956 - DECIDED JANUARY 14, 1957 - 263 ALA.
89, 81 SO. 2D 303, REVERSED AND REMANDED. 


IN AN ALABAMA STATE COURT, PETITIONER, AN UNEDUCATED NEGRO OF LOW
MENTALITY OR MENTALLY ILL, WAS CONVICTED OF BURGLARY WITH INTENT TO
COMMIT RAPE AND WAS SENTENCED TO DEATH.  TWO CONFESSIONS ADMITTED IN
EVIDENCE AT HIS TRIAL WERE OBTAINED WHILE HE WAS HELD IN A STATE PRISON
FAR FROM HIS HOME, WITHOUT THE PRELIMINARY HEARING REQUIRED BY ALABAMA
LAW AND WITHOUT ADVICE OF COUNSEL, FRIENDS OR FAMILY.  THE FIRST
CONFESSION WAS OBTAINED AFTER FIVE DAYS OF INTERMITTENT QUESTIONING BY
POLICE OFFICERS FOR SEVERAL HOURS AT A TIME AND THE SECOND FIVE DAYS
LATER AFTER MORE SUCH QUESTIONING.  HELD:  THE CIRCUMSTANCES OF
PRESSURE APPLIED AGAINST THE POWER OF RESISTANCE OF THIS PETITIONER,
WHO WAS WEAK OF WILL OR MIND, DEPRIVED HIM OF DUE PROCESS OF LAW
CONTRARY TO THE FOURTEENTH AMENDMENT.  PP. 191-198. 

FIKES V. ALABAMA. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS UNDER SENTENCE OF DEATH FOR THE CRIME OF BURGLARY WITH
INTENT TO COMMIT RAPE.  HE SEEKS REVERSAL OF THE JUDGMENT THROUGH A
WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA, WHICH SUSTAINED THE
CONVICTION.  263 ALA. 89, 81 SO. 2D 303.  PETITIONER RAISED THREE
ISSUES IN SUPPORT OF HIS POSITION THAT HE HAD BEEN DENIED DUE PROCESS
OF LAW.  HE ALLEGED: 

1.  ADMISSION INTO EVIDENCE OF TWO CONFESSIONS EXTRACTED FROM HIM
UNDER CIRCUMSTANCES DEMONSTRATING THAT THE STATEMENTS WERE COERCED OR
INVOLUNTARY. 

2.  DENIAL BY THE TRIAL JUDGE OF PETITIONER'S REQUEST TO TESTIFY
ABOUT THE MANNER IN WHICH THE CONFESSIONS WERE OBTAINED WITHOUT
SUBJECTING HIMSELF TO UNLIMITED CROSS-EXAMINATION AS TO THE FACTS OF
THE CRIME CHARGED. 

3.  SELECTION OF THE GRAND JURY WHICH INDICTED HIM BY A METHOD THAT
SYSTEMATICALLY DISCRIMINATED AGAINST MEMBERS OF HIS RACE. 

WE GRANTED CERTIORARI TO DETERMINE WHETHER THE REQUIREMENTS OF DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT HAD BEEN SATISFIED IN THESE
ASPECTS OF PETITIONER'S CONVICTION.  350 U.S. 993.  THE JUDGMENT MUST
BE REVERSED BECAUSE OF THE ADMISSION OF THE CONFESSIONS.  THEREFORE, IT
IS UNNECESSARY AT THIS TIME TO DECIDE OR DISCUSS THE OTHER TWO ISSUES
RAISED BY PETITIONER. 

THE FACTS ESSENTIAL TO THE PRESENT DECISION ARE AS FOLLOWS: 

DURING THE EARLY MONTHS OF 1953, A NUMBER OF HOUSEBREAKINGS, SOME
INVOLVING RAPE OR ATTEMPTED RAPE, WERE COMMITTED IN THE CITY OF SELMA,
ALABAMA.  THE PRESENT TRIAL CONCERNED ONE OF THESE CRIMES.  (FN1)  ON
THE NIGHT OF APRIL 24, 1953, AN INTRUDER BROKE INTO THE APARTMENT OF
THE DAUGHTER OF THE CITY'S MAYOR.  SHE AWOKE TO FIND A NEGRO MAN
SITTING ON HER WITH A KNIFE AT HER THROAT.  A STRUGGLE ENSUED WHICH
CARRIED THE WOMAN AND HER ASSAILANT THROUGH THE BEDROOM, HALL, AND
LIVING ROOM, WHERE SHE FINALLY WAS ABLE TO SEIZE THE KNIFE, AT WHICH
POINT HE FLED.  THESE ROOMS WERE ALL LIGHTED.  THE VICTIM TESTIFIED
THAT THE ATTACKER "HAD A TOWEL DRAPED OVER HIS HEAD" THROUGHOUT THE
INCIDENT; SHE DID NOT IDENTIFY PETITIONER AS THE ATTACKER IN HER
TESTIMONY AT THE TRIAL.  HOWEVER, TWO OTHER WOMEN TESTIFIED TO SIMILAR
HOUSEBREAKINGS (ONE OF WHICH RESULTED IN RAPE), AND THEY EACH
IDENTIFIED PETITIONER AS THE BURGLAR.  THIS TESTIMONY WAS ADMITTED AT
THE PRESENT TRIAL "SOLELY ON THE QUESTION OF INTENT AND IDENTITY OF
DEFENDANT AND HIS MOTIVE ON THE OCCASION THEN ON TRIAL."  263 ALA., AT
99, 81 SO. 2D, AT 313.  THIS, WITH THE CHALLENGED CONFESSIONS, WAS
SUBSTANTIALLY ALL THE EVIDENCE CONCERNING THE CRIME AT THE TRIAL. 

ABOUT MIDNIGHT ON MAY 16, 1953, PETITIONER WAS APPREHENDED IN AN
ALLEY IN A WHITE NEIGHBORHOOD IN SELMA BY PRIVATE PERSONS, WHO CALLED
THE POLICE.  THE OFFICERS JAILED HIM "ON AN OPEN CHARGE OF
INVESTIGATION."  THE NEXT DAY, A SUNDAY, THE QUESTIONING THAT LED TO
THE CHALLENGED CONFESSIONS BEGAN.  IT IS, OF COURSE, HIGHLY MATERIAL TO
THE QUESTION BEFORE THIS COURT TO ASCERTAIN PETITIONER'S CHARACTER AND
BACKGROUND.  HE IS A NEGRO, 27 YEARS OLD IN 1953, WHO STARTED SCHOOL AT
AGE EIGHT AND LEFT AT 16 WHILE STILL IN THE THIRD GRADE.  THERE WAS
TESTIMONY BY THREE PSYCHIATRISTS AT THE TRIAL, IN CONNECTION WITH A
PLEADED DEFENSE OF INSANITY, TO THE EFFECT THAT PETITIONER IS A
SCHIZOPHRENIC AND HIGHLY SUGGESTIBLE.  HIS MOTHER TESTIFIED THAT HE HAD
ALWAYS BEEN "THICK-HEADED."  PETITIONER WORKED IN A GAS STATION IN HIS
HOME TOWN OF MARION, SOME 30 MILES FROM SELMA.  SO FAR AS APPEARS, HIS
ONLY PRIOR INVOLVEMENT WITH THE LAW WAS A CONVICTION FOR BURGLARY OF A
STORE IN NOVEMBER 1949; HE WAS RELEASED ON PAROLE IN JANUARY 1951. 

THE QUESTIONING OF PETITIONER WAS CONDUCTED PRINCIPALLY BY CAPTAIN
BAKER OF THE SELMA POLICE.  HIS TESTIMONY THAT HE REPEATEDLY ADVISED
PETITIONER "THAT HE WAS ENTITLED TO COUNSEL AND HIS VARIOUS RIGHTS"
MUST BE VIEWED IN THE LIGHT OF THE FACTS CONCERNING PETITIONER'S
MENTALITY AND EXPERIENCE JUST OUTLINED. 

THE INTERROGATION BEGAN ON SUNDAY, MAY 17, WITH A TWO-HOUR SESSION IN
THE MORNING IN CAPTAIN BAKER'S OFFICE.  THAT AFTERNOON, PETITIONER WAS
QUESTIONED FOR TWO AND A HALF OR THREE HOURS, DURING PART OF WHICH TIME
HE WAS DRIVEN AROUND THE CITY TO SOME OF THE LOCATIONS OF THE UNSOLVED
BURGLARIES.  DURING THIS RIDE, PETITIONER ALSO TALKED TO THE SHERIFF OF
HIS HOME COUNTY, WHO HAD BEEN CALLED TO SELMA AT PETITIONER'S REQUEST,
ACCORDING TO CAPTAIN BAKER'S TESTIMONY. 

ON MONDAY, PETITIONER TALKED WITH HIS EMPLOYER.  CAPTAIN BAKER
CONTINUED QUESTIONING FOR TWO HOURS IN THE MORNING.  HE TESTIFIED THAT
A WARRANT WAS SERVED ON PETITIONER IN JAIL, BUT THAT PETITIONER DID NOT
REQUEST A PRELIMINARY HEARING.  IN FACT, HE WAS NOT TAKEN BEFORE ANY
JUDICIAL OFFICER PRIOR TO THE CONFESSIONS.  (FN2)  THAT AFTERNOON,
PETITIONER WAS DRIVEN TO KILBY STATE PRISON, WHICH IS LOCATED IN
ANOTHER COUNTY, ABOUT 55 MILES FROM SELMA AND SOME 80 MILES FROM
PETITIONER'S HOME IN MARION.  THE TESTIMONY OF THE RESPONSIBLE OFFICERS
WAS THAT THIS REMOVAL WAS DONE FOR PETITIONER'S PROTECTION, ALTHOUGH NO
SPECIFIC THREAT AGAINST HIM HAD BEEN MADE. 

AT KILBY PRISON, PETITIONER WAS KEPT IN THE "SEGREGATION UNIT," OUT
OF CONTACT WITH OTHER PRISONERS.  HE SAW ONLY THE JAILERS AND SELMA
OFFICERS WHO DROVE OVER TO QUESTION HIM.  PETITIONER WAS INTERROGATED
IN AN OFFICE IN THE PRISON.  ON MONDAY, THERE WAS QUESTIONING THERE FOR
"SEVERAL HOURS" IN THE AFTERNOON AND "A LITTLE WHILE" AFTER SUPPER. 
THE NEXT INTERROGATION WAS ON WEDNESDAY.   IT LASTED "SEVERAL HOURS" IN
THE AFTERNOON AND INTO THE EVENING.  THE FOLLOWING DAY PETITIONER WAS
QUESTIONED FOR TWO HOURS IN THE AFTERNOON AND ABOUT AN HOUR AND A HALF
IN THE EVENING.  THAT DAY HIS FATHER CAME TO THE PRISON TO SEE HIM, BUT
WAS REFUSED ADMITTANCE. 

ON THURSDAY EVENING, THE FIRST CONFESSION OCCURRED.  IT WAS
INTRODUCED AT THE TRIAL THROUGH A TAPE RECORDING.  THE CONFESSION
CONSISTS OF AN INTERROGATION BY CAPTAIN BAKER.  PETITIONER RESPONDED
CHIEFLY IN YES-OR-NO ANSWERS TO HIS QUESTIONS, SOME OF WHICH WERE QUITE
LEADING OR SUGGESTIVE. 

PETITIONER WAS QUESTIONED AGAIN FOR THREE HOURS ON SATURDAY, MAY 23. 
THAT DAY, A LAWYER WHO CAME TO THE PRISON TO SEE HIM WAS TURNED AWAY. 
ON SUNDAY, PETITIONER'S FATHER WAS ALLOWED TO VISIT HIS SON.  THIS WAS
THE ONLY CONTACT PETITIONER HAD DURING THE ENTIRE PERIOD IN QUESTION
WITH FAMILY OR FRIEND, OR FOR THAT MATTER WITH ANYONE HE KNEW, EXCEPT
THE TALKS AT THE BEGINNING OF THE WEEK WITH THE SHERIFF OF HIS OWN
COUNTY, IN THE PRESENCE OF SELMA OFFICERS, AND WITH HIS EMPLOYER. 

IN THE SECOND WEEK OF HIS INCARCERATION, ON TUESDAY AFTERNOON,
PETITIONER WAS QUESTIONED FOR ABOUT TWO AND A HALF HOURS.  AT THIS
TIME, THE SECOND CONFESSION WAS MADE.  LIKE THE OTHER, IT CONSISTS OF
RESPONSES TO QUESTIONS.  THE SECOND CONFESSION WAS TAKEN DOWN BY A
PRISON STENOGRAPHER AND SIGNED BY PETITIONER AFTER IT WAS READ TO HIM. 

THIS OUTLINE OF THE FACTS SURROUNDING THE TAKING OF THE CONFESSIONS
COMES ENTIRELY FROM THE TESTIMONY OF THE STATE WITNESSES, WHO UNDER THE
CIRCUMSTANCES WERE THE ONLY ONES WHO COULD TESTIFY AT THE TRIAL ON THIS
SUBJECT OTHER THAN THE PRISONER HIMSELF.  HE DID NOT TESTIFY, BECAUSE
OF THE TRIAL JUDGE'S RULING THAT HE WOULD BE SUBJECT TO UNLIMITED CROSS
EXAMINATION CONCERNING THE OFFENSE CHARGED AGAINST HIM.  (FN3)
STANDING ALONE, THE STATE'S EVIDENCE ESTABLISHES THAT THE CONFESSIONS
IN THE PRESENT CASE WERE NOT VOLUNTARY WITHIN THE MEANING OF THE
DECISIONS OF THIS COURT. 

HERE THE PRISONER WAS AN UNEDUCATED NEGRO, CERTAINLY OF LOW
MENTALITY, IF NOT MENTALLY ILL.  HE WAS FIRST ARRESTED BY CIVILIANS,
LODGED IN JAIL, AND THEN REMOVED TO A STATE PRISON FAR FROM HIS HOME. 
WE DO NOT CRITICIZE THE DECISION TO REMOVE THE PRISONER BEFORE ANY
POSSIBILITY OF VIOLENCE MIGHT MATURE, BUT PETITIONER'S LOCATION AND THE
CONDITIONS OF HIS INCARCERATION ARE FACTS TO BE WEIGHED IN CONNECTION
WITH THE ISSUE BEFORE US.  FOR A PERIOD OF A WEEK, HE WAS KEPT IN
ISOLATION, EXCEPT FOR SESSIONS OF QUESTIONING.  HE SAW NO FRIEND OR
RELATIVE.  BOTH HIS FATHER AND A LAWYER WERE BARRED IN ATTEMPTS TO SEE
HIM.  THE PROTECTIONS TO BE AFFORDED TO A PRISONER UPON PRELIMINARY
HEARING WERE DENIED HIM, CONTRARY TO THE LAW OF ALABAMA.  (FN4)  HE WAS
QUESTIONED FOR SEVERAL HOURS AT A TIME OVER THE COURSE OF FIVE DAYS
PRECEDING THE FIRST CONFESSION, AND AGAIN INTERROGATED AT LENGTH BEFORE
THE WRITTEN CONFESSION WAS SECURED. 

THERE IS NO EVIDENCE OF PHYSICAL BRUTALITY, AND PARTICULAR ELEMENTS
THAT WERE PRESENT IN OTHER CASES IN WHICH THIS COURT RULED THAT A
CONFESSION WAS COERCED DO NOT APPEAR HERE.  ON THE OTHER HAND, SOME OF
THE ELEMENTS IN THIS CASE WERE NOT PRESENT IN ALL OF THE PRIOR CASES. 
THE OBJECTIVE FACTS IN THE PRESENT CASE ARE VERY MUCH LIKE THOSE THAT
WERE BEFORE THE COURT IN TURNER V. PENNSYLVANIA, 338 U.S. 62, WHILE THE
PRESENT PETITIONER WAS A WEAKER AND MORE SUSCEPTIBLE SUBJECT THAN THE
RECORD IN THAT CASE REVEALS TURNER TO HAVE BEEN.  AND CF. JOHNSON V.
PENNSYLVANIA, 340 U.S. 881.  THE TOTALITY OF THE CIRCUMSTANCES THAT
PRECEDED THE CONFESSIONS IN THIS CASE GOES BEYOND THE ALLOWABLE
LIMITS.  THE USE OF THE CONFESSIONS SECURED IN THIS SETTING WAS A
DENIAL OF DUE PROCESS. 

NEITHER STEIN V. NEW YORK, 346 U.S. 156, NOR ANY OF THE OTHER CASES
RELIED ON BY RESPONDENT STANDS IN THE WAY OF THIS CONCLUSION.  IN
STEIN, THE COURT SAID: 

"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."  346 U.S., AT 185. 

THAT IS THE SAME STANDARD THAT HAS  BEEN UTILIZED IN EACH CASE,
ACCORDING TO ITS TOTAL FACTS.  CF., E.G., WATTS V. INDIANA, 338 U.S.
49, 53; LYONS V. OKLAHOMA, 322 U.S. 596, 602-605.  WE HOLD THAT THE
CIRCUMSTANCES OF PRESSURE APPLIED AGAINST THE POWER OF RESISTANCE OF
THIS PETITIONER, WHO CANNOT BE DEEMED OTHER THAN WEAK OF WILL OR MIND,
DEPRIVED HIM OF DUE PROCESS OF LAW.  SO VIEWED, THE JUDGMENT OF
CONVICTION IN THIS CASE CANNOT STAND. 

THE JUDGMENT IS REVERSED, AND THE CAUSE IS REMANDED FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  PETITIONER APPARENTLY WAS INDICTED FOR SIX OF THE BURGLARY
INCIDENTS.  SEE 263 ALA., AT 96, 81 SO. 2D, AT 310.  AT THE ORAL
ARGUMENT, COUNSEL STATED THAT SHORTLY BEFORE THE PRESENT TRIAL
PETITIONER HAD BEEN CONVICTED OF ANOTHER OF THESE BURGLARIES, ONE WHICH
HAD RESULTED IN A RAPE, AND SENTENCED TO IMPRISONMENT FOR 99 YEARS.  IT
APPEARS THAT NO APPEAL WAS TAKEN. 

FN2  ALABAMA LAW SPECIFICALLY REQUIRED BRINGING PETITIONER PROMPTLY
BEFORE A MAGISTRATE: 

"IT IS THE DUTY OF ANY PRIVATE PERSON, HAVING ARRESTED ANOTHER FOR
THE COMMISSION OF ANY PUBLIC OFFENSE, TO TAKE HIM WITHOUT UNNECESSARY
DELAY BEFORE A MAGISTRATE, OR TO DELIVER HIM TO SOME ONE OF THE
OFFICERS SPECIFIED IN SECTION 152 OF THIS TITLE (POLICE OFFICERS), WHO
MUST FORTHWITH TAKE HIM BEFORE A MAGISTRATE."  CODE OF ALA., 1940, TIT.
15, SEC. 160. 

UNDER THE CASES OF THAT STATE, VIOLATION OF THIS REQUIREMENT DOES NOT
RENDER INADMISSIBLE A CONFESSION SECURED DURING SUCH DETENTION.  SEE
INGRAM V. STATE, 252 ALA. 497, 42 SO. 2D 36.  NEVERTHELESS, SUCH AN
OCCURRENCE IS "RELEVANT CIRCUMSTANTIAL EVIDENCE IN THE INQUIRY AS TO
PHYSICAL OR PSYCHOLOGICAL COERCION."  STEIN V. NEW YORK, 346 U.S. 156,
187. 

PETITIONER WAS ADMITTED TO KILBY PRISON ON AN ORDER OR LETTER FROM A
STATE CIRCUIT JUDGE.  THE NATURE OF THIS PROCEDURE DOES NOT CLEARLY
APPEAR FROM THE RECORD, BUT IT IS CONCEDED THAT PETITIONER WAS NOT
TAKEN BEFORE THE JUDGE. 

FN3  THE ISSUE WAS RAISED AT THE TRIAL IN THIS COLLOQUY: 

"SOLICITOR HARE:  THE STATE OFFERS IN EVIDENCE THE RECORDING
HERETOFORE TESTIFIED TO BY THE WITNESS PRESENTLY ON THE STAND (CAPTIAN
BAKER). 

"ATTORNEY HALL:  IF THE COURT PLEASE, THE DEFENDANT OBJECTS TO WHAT
PURPORTS TO BE A RECORDING MADE BY THIS WITNESS, ON THE GROUND THAT
SUFFICIENT PREDICATE HAS NOT BEEN LAID. 

"THE COURT:  OVER-RULE THE OBJECTION. 

"ATTORNEY HALL:  WE EXCEPT, SIR, AND WE WOULD LIKE TO MAKE ANOTHER
MOTION.  WE WOULD LIKE TO MAKE AN OFFER TO PUT THIS DEFENDANT ON THE
STAND FOR THE PURPOSE OF REFUTING CERTAIN ALLEGATIONS BY THE STATE WITH
REFERENCE TO THE VOLUNTARY NATURE OF WHAT PURPORTS TO BE CERTAIN EXTRA
JUDICIAL ADMISSIONS, AND FOR NO OTHER PURPOSE. 

"SOLICITOR HARE:  NOW, MAY IT PLEASE THE COURT, IF THE DEFENDANT
TAKES THE STAND, I INSIST THAT HE BE SUBJECT TO CROSS-EXAMINATION ON
ANY AND EVERY ITEM THAT IS IN EVIDENCE.  I AM NOT WILLING TO MAKE ANY
AGREEMENT OF LIMITATION. 

"THE COURT:  AND YOU ARE ONLY OFFERING THE TESTIMONY OF THE DEFENDANT
FOR THE PURPOSE OF REFUTING THE VOLUNTARY NATURE OF THIS RECORDING? 

"ATTORNEY HALL:  JUST THAT, SIR. 

"THE COURT: I SUSTAIN THE STATE.  IF THE STATE IS NOT WILLING TO
REACH A STIPULATION OR AGREEMENT ON THAT, BUT INSISTS THAT YOU OPEN
DEFENDANT FOR CROSS-EXAMINATION OF ANY AND EVERY NATURE, I OVER-RULE
THE MOTION."  (R. 230-231.)    FN4  SEE NOTE 2, SUPRA. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BRENNAN JOINS, CONCURRING. 

IN JOINING THE COURT'S OPINION I SHOULD LIKE TO ADD A FEW WORDS.  A
CASE LIKE THIS IS NOT EASY FOR ONE WHO BELIEVES VERY STRONGLY THAT
ADEQUATE POWER SHOULD ACCOMPNAY THE RESPONSIBILITY OF THE STATES FOR
THE ENFORCEMENT OF THEIR CRIMINAL LAW.  BUT THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT HAS PLACED LIMITATIONS UPON THE DISCRETION,
UNBRIDLED FOR ALL PRACTICAL PURPOSES, THAT BELONGED TO THE STATES PRIOR
TO ITS ADOPTION, AND, MORE PARTICULARLY, CONFINES THEIR FREEDOM OF
ACTION IN DEVISING CRIMINAL PROCEDURE.  IT IS, I ASSUME, COMMON GROUND
THAT IF THIS RECORD HAD DISCLOSED AN ADMISSION BY THE POLICE OF ONE
TRUNCHEON BLOW ON THE HEAD OF PETITIONER A CONFESSION FOLLOWING SUCH A
BLOW WOULD BE INADMISSIBLE BECAUSE OF THE DUE PROCESS CLAUSE.  FOR
MYSELF, I CANNOT SEE THE DIFFERENCE, WITH RESPECT TO THE
"VOLUNTARINESS" OF A CONFESSION, BETWEEN THE SUBVERSION OF FREEDOM OF
THE WILL THROUGH PHYSICAL PUNISHMENT AND THE SAPPING OF THE WILL
APPROPRIATELY TO BE INFERRED FROM THE CIRCUMSTANCES OF THIS CASE -
DETENTION OF THE ACCUSED VIRTUALLY INCOMMUNICADO FOR A LONG PERIOD;
FAILURE TO ARRAIGN HIM IN THAT PERIOD; (FN1) HORSE-SHEDDING OF THE
ACCUSED AT THE INTERMITTENT PLEASURE OF THE POLICE UNTIL CONFESSION WAS
FORTHCOMING.  NO SINGLE ONE OF THESE CIRCUMSTANCES ALONE WOULD IN MY
OPINION JUSTIFY A REVERSAL.  I CANNOT ESCAPE THE CONCLUSION, HOWEVER,
THAT IN COMBINATION THEY BRING THE RESULT BELOW THE PLIMSOLL LINE OF
"DUE PROCESS." 

A STATE COURT'S JUDGMENT OF CONVICTION MUST NOT BE SET ASIDE BY THIS
COURT WHERE THE PRACTICES OF THE PROSECUTION, INCLUDING THE POLICE AS
ONE OF ITS AGENCIES, DO NOT OFFEND WHAT MAY FAIRLY BE DEEMED THE
CIVILIZED STANDARDS OF THE ANGLO-AMERICAN WORLD.  (FN2)  THIS RECORD
REVEALS A COURSE OF CONDUCT THAT, HOWEVER CONSCIENTIOUSLY PURSUED,
CLEARLY FALLS BELOW THOSE STANDARDS.  SUCH CONDUCT IS NOT ONLY NOT
CONSONANT WITH OUR PROFESSIONS ABOUT CRIMINAL JUSTICE, AS AGAINST
AUTHORITARIAN METHODS THAT WE DENOUCE.  IT DERIVES FROM AN ATTITUDE
THAT IS INIMICAL, IF EXPERIENCE IS ANY GUIDE, TO THE MOST ENDURING
INTERESTS OF LAW. 

FN1  FLOUTING OF THE REQUIREMENT OF PROMPT ARRAIGNMENT PREVAILING IN
MOST STATES IS IN AND OF ITSELF NOT A DENIAL OF DUE PROCESS.  CF.
MCNABB V. UNITED STATES, 318 U.S. 332.  BUT IT IS TO DISREGARD
EXPERIENCE NOT TO RECOGNIZE THAT THE ORDINARY MOTIVE FOR SUCH EXTENDED
FAILURE TO ARRAIGN IS NOT UNRELATED TO THE PURPOSE OF EXTRACTING
CONFESSIONS. 

FN2  "OUR IS THE ACCUSATORIAL AS OPPOSED TO THE INQUISITORIAL
SYSTEM."  WATTS V. INDIANA, 338 U.S. 49, 54.  AN ANALYSIS OF THE
PARTICULAR PHASE OF THE JUDICIAL PROCESS INVOLVED IN APPLYING THE DUE
PROCESS CLAUSE TO STATE CONVICTIONS SECURED ON THE BASIS OF CONFESSIONS
HAS BEEN ATTEMPTED IN MY OPINIONS IN MALINSKI V. NEW YORK, 324 U.S.
401, 412; HALEY V. OHIO, 332 U.S. 596, 601; WATTS V. INDIANA, SUPRA. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE REED AND MR. JUSTICE BURTON
JOIN, DISSENTING. 

THE SETTING ASIDE OF THIS CONVICTION, IN MY OPINION, OVERSTEPS THE
BOUNDARY BETWEEN THIS COURT'S FUNCTION UNDER THE FOURTEENTH AMENDMENT
AND THAT OF THE STATE COURTS IN THE ADMINISTRATION OF STATE CRIMINAL
JUSTICE.  I RECOGNIZE THAT PARTICULARLY IN "COERCED CONFESSION" CASES
THE BOUNDARY LINE IS FREQUENTLY DIFFICULT TO DRAW.  BUT THIS COURT HAS
RECOGNIZED THAT ITS CORRECTIVE POWER OVER STATE COURTS IN CRIMINAL
CASES IS NARROWER THAN THAT WHICH IT EXERCISES OVER THE LOWER FEDERAL
COURTS.  WATTS V. INDIANA, 338 U.S. 49, 50. 

IN THIS INSTANCE I DO NOT THINK IT CAN BE SAID THAT THE PROCEDURES
FOLLOWED IN OBTAINING PETITIONER'S CONFESSIONS VIOLATED CONSTITUTIONAL
DUE PROCESS.  THE ELEMENTS USUALLY ASSOCIATED WITH CASES IN WHICH THIS
COURT HAS BEEN CONSTRAINED TO ACT ARE, IN MY OPINION, NOT PRESENT HERE
IN CONSTITUTIONAL PROPORTIONS, SEPARATELY OR IN COMBINATION. 
CONCEDEDLY, THERE WAS NO BRUTALITY OR PHYSICAL COERCION.  AND
PSYCHOLOGICAL COERCION IS BY NO MEANS MANIFEST.  WHILE THE TOTAL PERIOD
OF INTERROGATION WAS SUBSTANTIAL, THE QUESTIONING WAS INTERMITTENT; IT
NEVER EXCEEDED TWO OR THREE HOURS AT A TIME, AND ALL OF IT TOOK PLACE
DURING NORMAL HOURS; "RELAY" TACTICS, SUCH AS WERE CONDEMNED IN TURNER
V. PENNSYLVANIA, 338 U.S. 62, AND OTHER CASES, (FN1) WERE NOT
EMPLOYED.  TRUE, PETITIONER'S MENTAL EQUILIBRIUM APPEARS TO HAVE BEEN
LESS THAN NORMAL, BUT THESE FACTS WERE BEFORE THE TRIAL JUDGE AND THE
JURY.  THE ABSENCE OF ARRAIGNMENT, MUCH AS THAT PRACTICE IS TO BE
DEPRECATED, LOSES IN SIGNIFICANCE IN LIGHT OF THE STATE'S
REPRESENTATION AT THE ORAL ARGUMENT THAT THIS WAS NOT AN UNUSUAL THING
IN ALABAMA.  AS THIS COURT RECOGNIZES, IT DID NOT OF ITSELF MAKE THE
CONFESSIONS INADMISSIBLE.  PETITIONER'S REMOVAL TO KILBY PRISON, AFTER
AUTHORIZATION BY A STATE CIRCUIT JUDGE, STANDS ON QUITE A DIFFERENT
FOOTING FROM THE EPISODE IN WARD V. TEXAS, 316 U.S. 547.   AND I AM NOT
SATISFIED THAT THERE WAS ANY DELIBERATE PURPOSE TO KEEP THE PETITIONER
INCOMMUNICADO, SUCH AS EXISTED IN WATTS V. INDIANA, SUPRA; TURNER V.
PENNSYLVANIA, SUPRA; AND HARRIS V. SOUTH CAROLINA, SUPRA.  BEFORE THE
FIRST CONFESSION, PETITIONER, AT HIS OWN REQUEST, WAS PERMITTED TO SEE
THE SHERIFF OF HIS HOME COUNTY, AND HIS EMPLOYER.  HIS FATHER, ALTHOUGH
NOT PERMITTED TO SEE PETITIONER ON THE DAY OF THE FIRST CONFESSION,
(FN2) WAS ALLOWED TO SEE HIM BEFORE THE SECOND CONFESSION.  THE LAWYER
WHO SOUGHT TO SEE PETITIONER WAS REFUSED PERMISSION BECAUSE, HAVING NO
AUTHORITY FROM PETITIONER OR HIS FAMILY TO REPRESENT HIM, THE PRISON
AUTHORITIES EVIDENTLY THOUGHT HE WAS TRYING TO SOLICIT BUSINESS. 

THE SUPREME COURT OF ALABAMA, AFTER REVIEWING THE RECORD, HAS
SUSTAINED THE CONVICTION.  263 ALA. 89, 81 SO. 2D 303.  I FIND NOTHING
HERE BEYOND A STATE OF FACTS UPON WHICH REASONABLE MEN MIGHT DIFFER IN
THEIR CONCLUSIONS AS TO WHETHER THE CONFESSIONS HAD BEEN COERCED.  IN
THE ABSENCE OF ANYTHING IN THE CONDUCT OF THE STATE AUTHORITIES WHICH
"SHOCKS THE CONSCIENCE" OR DOES "MORE THAN OFFEND SOME FASTIDIOUS
SQUEAMISHNESS OR PRIVATE SENTIMENTALISM ABOUT COMBATTING CRIME TOO
ENERGETICALLY," ROCHIN V. CALIFORNIA, 342 U.S. 165, 172, I THINK THAT
DUE REGARD FOR THE DIVISION BETWEEN STATE AND FEDERAL FUNCTIONS IN THE
ADMINISTRATION OF CRIMINAL JUSTICE REQUIRES THAT WE LET ALABAMA'S
JUDGMENT STAND. 

FN1  SEE, FOR EXAMPLE, WATTS V. INDIANA, SUPRA; HALEY V. OHIO, 332
U.S. 596; HARRIS V. SOUTH CAROLINA, 338 U.S. 68. 

FN2  THE RECORD IS SILENT AS TO WHY THE FATHER DID NOT GAIN
ADMITTANCE ON THIS FIRST VISIT. 
..END :








UNITED STATES V. PLESHA 352 U.S. 202 


NO. 39.  ARGUED NOVEMBER 8, 1956 - DECIDED JANUARY 14, 1957 - 227 F.2D
624, AFFIRMED. 


UNDER ARTICLE IV OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF
1940, AS IT STOOD PRIOR TO THE 1942 AMENDMENT, FORMER SERVICEMEN ARE
NOT OBLIGATED PERSONALLY TO REIMBURSE THE UNITED STATES FOR ITS PAYMENT
OF DEFAULTED PREMIUMS ON THEIR COMMERCIAL LIFE INSURANCE POLICIES
PURSUANT TO REQUESTS MADE BY THEM BEFORE THE 1942 AMENDMENT THAT THEIR
POLICIES BE PROTECTED UNDER THE ACT AGAINST LAPSE DURING THEIR TIME OF
MILITARY SERVICE AND FOR ONE YEAR THEREAFTER.  PP. 203-211. 

1.  THE 1940 ACT CONTAINED NO PROVISION WHICH REQUIRED REIMBURSEMENT
FOR PREMIUMS PAID BY THE GOVERNMENT ON A LAPSED POLICY.  PP. 204-205. 

2.  A RIGHT OF THE GOVERNMENT TO REIMBURSEMENT IS NOT TO BE INFERRED
FROM THE ACT OR FROM THE COMMON-LAW DOCTRINE THAT A GUARANTOR WHO PAYS
THE DEBT OF ANOTHER IS ENTITLED TO REIMBURSEMENT.  P. 204, N. 4. 

3.  THE GOVERNMENT'S CLAIM FOR REIMBURSEMENT IS REFUTED BY THE
LEGISLATIVE HISTORY.  PP.  205-208. 

4.  THE ADMINISTRATIVE INTERPRETATION OF THE 1918 AND 1940 ACTS DOES
NOT SUPPORT THE GOVERNMENT'S CLAIM FOR REIMBURSEMENT.  PP. 208-211. 

5.  A SERVICEMAN'S LIABILITY UNDER THE 1940 ACT MUST BE DETERMINED
UNDER THAT ACT, NOT UNDER THE 1942 ACT.  P. 209, N. 17. 

UNITED STATES V. PLESHA ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ARTICLE IV OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940
PROVIDED A PLAN UNDER WHICH MEN INDUCTED INTO THE ARMED FORCES WOULD
CONTINUE TO RECEIVE THE PROTECTION OF PREVIOUSLY PURCHASED COMMERCIAL
LIFE INSURANCE WHILE IN THE SERVICE WITHOUT PAYING PREMIUMS.  (FN1)
INSURANCE COMPANIES WERE REQUIRED TO KEEP THE POLICIES OF SERVICEMEN
WHO ELECTED TO COME UNDER THE ACT IN EFFECT UNTIL ONE YEAR AFTER THEIR
MILITARY SERVICE ENDED EVEN THOUGH THESE MEN MADE NO FURTHER PAYMENTS. 
THE GOVERNMENT ASSURED THE INSURANCE COMPANIES THAT THE PREMIUMS WOULD
EVENTUALLY BE PAID BY GIVING ITS PROMISSORY CERTIFICATES TO THE
COMPANIES.  THE RESPONDENTS, PLESHA, MABBUTT, AND KERN, WHO ENTERED THE
ARMY IN 1941, HAD PREVIOUSLY PURCHASED COMMERCIAL LIFE INSURANCE.  THEY
INVOKED THE BENEFITS OF THE ACT BY FILING PROPER APPLICATIONS WITH
THEIR COMPANIES AND THE VETERANS' ADMINISTRATION.  THEY MADE NO FURTHER
PAYMENT OF PREMIUMS BUT THE POLICIES WERE KEPT IN EFFECT BY GOVERNMENT
CERTIFICATES.   AFTER LEAVING THE ARMY, THEY WERE NOTIFIED BY THE
VETERANS' ADMINISTRATION THAT UNLESS THEY PAID BACK PREMIUMS WITH
INTEREST THEIR POLICIES WOULD LAPSE.  RESPONDENTS ALLOWED THE POLICIES
TO LAPSE AND THE GOVERNMENT PAID THE INSURING COMPANIES THE BACK
PREMIUMS AFTER FIRST DEDUCTING THE CASH SURRENDER VALUE OF THE
POLICIES.  IN THIS CASE, THE GOVERNMENT CONTENDS THAT IT HAS A LEGAL
RIGHT TO BE REIMBURSED FOR THESE PAYMENTS.  (FN2)  THE DISTRICT COURT
AGREED WITH THIS CONTENTION.  123 F. SUPP. 593.  THE COURT OF APPEALS
REVERSED, HOLDING SERVICEMEN HAD NO STATUTORY OR CONTRACTUAL OBLIGATION
TO THE GOVERNMENT TO REPAY THE PREMIUMS.  227 F.2D 624.  (FN3)  WE
AFFIRM THE JUDGMENT BELOW BECAUSE THE LANGUAGE OF THE 1940 ACT, ITS
LEGISLATIVE HISTORY AND ITS ADMINISTRATIVE INTERPRETATION DEMONSTRATE
THAT CONGRESS INTENDED THAT EX-SOLDIERS WOULD NOT HAVE TO REIMBURSE THE
GOVERNMENT. 

1.  THE ACT.  - AS THE GOVERNMENT CONCEDES, THE 1940 ACT CONTAINED NO
EXPRESS PROVISION WHICH REQUIRED REIMBURSEMENT FOR PREMIUMS PAID BY THE
GOVERNMENT ON A LAPSED POLICY.  (FN4)  BUT SIGNIFICANTLY IT DID CONTAIN
SPECIFIC PROVISIONS TO REDUCE ANY LOSSES THE GOVERNMENT MIGHT INCUR IN
ADMINISTERING THE INSURANCE PLAN BY GIVING THE GOVERNMENT CERTAIN OTHER
RIGHTS.  UNDER SEC. 408 THE UNITED STATES HAD A LIEN UPON THE POLICY
FROM THE TIME IT CAME UNDER THE PROTECTION OF THE ACT.  WHEN A SOLDIER
DIED THE INSURANCE COMPANY WAS AUTHORIZED BY SEC. 409 TO DEDUCT UNPAID
PREMIUMS FROM THE PROCEEDS PAYABLE UNDER THE POLICY.  IF AFTER LEAVING
THE SERVICE THE INSURED DESIRED TO MAINTAIN HIS POLICY, SEC. 410
REQUIRED HIM TO PAY THE UNPAID PREMIUMS TO THE INSURANCE COMPANY.  IF
HE CHOSE NOT TO PAY THESE PREIUMS, SEC. 410 FURTHER PROVIDED THAT THE
POLICY WOULD LAPSE.  AND IF A POLICY LAPSED, SEC. 411 PROVIDED THAT THE
UNITED STATES SHOULD BE GIVEN CREDIT FOR THE POLICY'S CASH SURRENDER
VALUE AS AN OFFSET AGAINST THE GOVERNMENT'S PROMISE TO PAY THE BACK
PREMIUMS.  THERE WAS NOTHING THAT INDICATED THAT AN EX-SOLDIER HAD TO
REIMBURSE THE GOVERNMENT FOR ANY BALANCE THAT IT PAID. 

2.  THE LEGISLATIVE HISTORY.  - THE GOVERNMENT'S CLAIM FOR
REIMBURSEMENT IS REFUTED BY THE LEGISLATIVE HISTORY.  ARTICLE IV OF THE
1940 ACT SUBSTANTIALLY REENACTED THE INSURANCE PROVISIONS OF THE
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1918 (FN5) AND HAD LITTLE
INDEPENDENT LEGISLATIVE HISTORY.  WE AGREE WITH THE ADMINISTRATOR OF
VETERANS' AFFAIRS THAT THIS SCANT HISTORY "IS OF LITTLE, IF ANY, HELP"
IN INTERPRETING THE 1940 ACT.  (FN6)  WE MUST THEREFORE EXAMINE THE
HISTORY OF THE 1918 BILL.  (FN7)  DURING THE SENATE COMMITTEE HEARINGS
ON THIS BILL, SENATOR REED, WHO WAS THE PRINCIPAL CRITIC OF ITS
INSURANCE PROVISIONS, INTERPRETED THEM AS PERMITTING A SOLDIER TO LET
HIS POLICY LAPSE WITHOUT ANY OBLIGATION TO RESTORE THE PREMIUMS PAID BY
THE GOVERNMENT.  (FN8)  HE OBJECTED TO THE GOVERNMENT'S BEARING ANY
PART OF THE COST AND EVEN SUGGESTED THAT THE BILL SHOULD BE AMENDED TO
AUTHORIZE THE GOVERNMENT TO DEDUCT THE PREMIUMS FROM THE SOLDIER'S
MONTHLY PAY.  PROFESSOR JOHN H. WIGMORE, WHO AS A MAJOR REPRESENTING
THE ARMY HAD A DOMINANT PART IN DRAFTING THE BILL AND PRESENTING IT TO
CONGRESS, STRONGLY OBJECTED TO SENATOR REED'S SUGGESTIONS.  PROFESSOR
WIGMORE POINTED OUT THAT THIS BENEFIT WOULD BE IN KEEPING WITH THE MANY
NEW BENEFITS WHICH WERE BEING CONFERRED ON SERVICEMEN AT THAT CRITICAL
WAR PERIOD.  WHEN DIRECTLY ASKED WHETHER A SOLDIER COULD BE MADE TO
PAY, HE CALLED ATTENTION TO THE FACT THAT THE GOVERNMENT HAD A LIEN ON
THE POLICY AND COULD RECOVER THE CASH SURRENDER VALUE.  HE ADMITTED,
HOWEVER, THAT THE CASH SURRENDER VALUE WOULD NOT IN ALL CASES PAY THE
ENTIRE AMOUNT OF BACK PREMIUMS BUT PREDICTED THAT THE LOSS TO THE
GOVERNMENT WOULD BE VERY SLIGHT.  (FN9)  THE COMMITTEE ACCEPTED
PROFESSOR WIGMORE'S POSITION AND REPORTED THE BILL IN THE FORM HE
URGED. 

THE HOUSE JUDICIARY COMMITTEE MADE A COMPREHENSIVE REPORT ON THE 1918
BILL.  (FN10)  IT REFERRED TO THE INSURANCE SECTIONS AS PROVIDING A
METHOD FOR THE GOVERNMENT TO "CARRY" THE PREMIUMS UPON SERVICEMEN'S
POLICIES IN PRIVATE COMPANIES.  THE COMMITTEE RECOGNIZED THAT CARRYING
THIS INSURANCE WOULD COST THE GOVERNMENT MONEY, BUT EXPRESSED THE HOPE
THAT THIS BURDEN WOULD NOT BE LARGE BECAUSE:

"IN THE FIRST PLACE THE GOVERNMENT ONLY GUARANTEES THE PAYMENT OF THE
PREMIUMS.  IF THE SOLDIER DIES THE INSURANCE COMPANY WILL GET ITS
PREMIUMS OUT OF THE POLICY AND THE GOVERNMENT'S GUARANTY WILL NOT BE
CALLED UPON.  IF THE SOLDIER COMES BACK FROM THE WAR HE WILL REPAY THE
PREMIUMS IF HE CONTINUES THE POLICY, AND IF HE LETS THE POLICY LAPSE
THE GOVERNMENT WILL BE SUBROGATED TO HIS RIGHTS."  (FN11) 

THUS, THE COMMITTEE APPARENTLY THOUGHT THAT THE GOVERNMENT MUST LOOK
TO THE CASH SURRENDER VALUE TO MITIGATE ITS LOSS WHERE A POLICY WAS
ALLOWED TO LAPSE. 

IN 1942, THE 1940 ACT WAS AMENDED TO REQUIRE EX-SERVICEMEN TO
REIMBURSE THE GOVERNMENT FOR BACK PREMIUMS PAID BY IT ON THEIR LAPSED
POLICIES.  (FN12)  THE GOVERNMENT CONTENDS THAT THIS 1942 AMENDMENT WAS
TO CLARIFY AND REAFFIRM THE MEANING OF THE 1940 ACT.  HOWEVER IT
APPEARS THAT THE VETERANS' ADMINISTRATION REQUESTED THE 1942 AMENDMENT
TO "  ...  ELIMINATE THE POSSIBILITY OF REQUIRING THE GOVERNMENT TO PAY
PREMIUMS ON INSURANCE WHICH THE INSURED DOES NOT INTEND TO CARRY EXCEPT
DURING HIS PERIOD OF ACTIVE SERVICE  ...  ."  (FN13)  AND DURING A
HEARING BEFORE THE HOUSE COMMITTEE ON MILITARY AFFAIRS A VETERANS'
ADMINISTRATION REPRESENTATIVE TESTIFIED, "THE INSURED IS LIABLE FOR ALL
OF THE PREMIUMS OF THE $5,000 POLICY, THE GOVERNMENT ACTING REALLY AS A
GUARANTOR.  HOWEVER, IF THERE IS A DEFAULT BY THE EX-SERVICEMAN, THERE
WOULD NOT BE ANY LIABILITY FOR THE WHOLE AMOUNT, IN EXCESS OF THE CASH
SURRENDER VALUE UNDER PRESENT CONSTRUCTION OF EXISTING LAW."  (FN14) IF
THE LEGISLATIVE HISTORY OF THE 1942 ACT INDICATES ANYTHING, IT IS THAT
CONGRESS THOUGHT THAT IT WAS CHANGING THE LAW BY CHANGING THE LANGUAGE
OF THE ACT.  (FN15) 

3.  THE ADMINISTRATIVE INTERPRETATION.  - THE ADMINISTRATION OF THE
1918 AND 1940 ACTS DOES NOT SUPPORT THE GOVERNMENT'S CLAIM FOR
REIMBURSEMENT.  THE GOVERNMENT RELIES ON THE FACT THAT A FEW SOLDIERS
WHO INVOKED THE PROTECTION OF THE 1918 ACT AND ALLOWED THEIR POLICIES
TO LAPSE WERE LATER REQUIRED TO REIMBURSE IT.  HOWEVER THESE
COLLECTIONS WERE SO SPORADIC AND SO INSIGNIFICANT THAT INSTEAD OF
SUPPORTING THE GOVERNMENT'S POSITION THEY CONTRADICT IT.  (FN16)  UNDER
THE 1940 ACT, SEC. 401(2) REQUIRED THE VETERANS' ADMINISTRATION TO
ISSUE NOTICES EXPLAINING THE ACT.  NONE OF THE NOTICES PROMULGATED
PRIOR TO 1943 SUGGESTED ANY DUTY ON THE PART OF SERVICEMEN TO REIMBURSE
THE GOVERNMENT.  (FN17)  BUT PUBLIC STATEMENTS OF VETERANS'
ADMINISTRATION OFFICIALS GAVE THE ACT A SQUARELY CONTRARY
CONSTRUCTION.  (FN18) 

TO FILE APPLICATIONS ON FORMS PREPARED IN ACCORDANCE WITH THE
REGULATIONS OF THE VETERANS' ADMINISTRATION.  THE RESPONDENTS HERE
FILED SUCH AN APPLICATION WHICH INCLUDED WITHIN ITS TERMS THE FOLLOWING
AGREEMENT: 

"IN CONSIDERATION HEREOF, I HEREBY CONSENT AND AGREE THAT THE UNITED
STATES SHALL BE PROTECTED IN THE AMOUNT OF ANY PREMIUMS AND INTEREST
GUARANTEED ON THE ABOVE NUMBERED POLICY IN THE EVENT OF ITS MATURITY AS
A CLAIM, OR OUT OF THE CASH SURRENDER VALUE OF THE POLICY, AT THE
EXPIRATION OF THE PERIOD OF PROTECTION UNDER THE ACT." 

THIS CONTRACT, PREPARED BY THE VETERANS' ADMINISTRATION, CONTAINED NO
SUGGESTION TO SOLDIERS THAT THEY WOULD BE EXPECTED TO REIMBURSE THE
GOVERNMENT FOR ITS PAYMENT OF PREMIUMS IF THEY PERMITTED THEIR POLICIES
TO LAPSE.  HAD THE VETERANS' ADMINISTRATION CONSTRUED THE ACT AS
IMPOSING SUCH A LIABILITY ON SOLDIERS, WE THINK IT WOULD HAVE MENTIONED
THE OBLIGATION IN THE CONTRACT THAT IT ASKED THEM TO SIGN. 

CONGRESS PASSED THE 1918 AND 1940 ACT AT A TIME WHEN MEN WERE BEING
CALLED FROM CIVILIAN LIFE INTO THE ARMY IN THE FACE OF IMPENDING WAR. 
GREAT EFFORTS WERE MADE TO EASE THE BURDEN ON THESE MEN AND THEIR
DEPENDENTS.  AMONG THESE, THE GOVERNMENT GENEROUSLY PROVIDED FAMILY
ALLOTMENTS, DISABILITY PAYMENTS, AND LOW-COST GOVERNMENT INSURANCE. 
SIMILARLY THE PROVISIONS UNDER CONSIDERATION HERE WERE ADOPTED TO
ASSIST SOLDIERS WHO HAD BOUGHT INSURANCE BEFORE ENTERING THE ARMY AND
DID NOT REQUIRE THEM TO REIMBURSE THE GOVERNMENT.  AFFIRMED. 

FN1  54 STAT. 1183, 50 U.S.C. APP. (1940 ED.)  SEC.  540. 

FN2  PLESHA BROUGHT SUIT AGAINST THE GOVERNMENT TO RECOVER A DIVIDEND
DECLARED ON HIS NATIONAL SERVICE LIFE INSURANCE POLICY.  THE GOVERNMENT
ATTEMPTED TO OFFSET THE AMOUNT IT HAD PAID ON HIS COMMERCIAL
INSURANCE.  THE OTHER RESPONDENTS INTERVENED TO LITIGATE THE SAME BASIC
ISSUE. 

FN3  WE GRANTED CERTIORARI, 350 U.S. 1013, BECAUSE THIS HOLDING WAS
IN CONFLICT WITH UNITED STATES V. HENDLER, 225 F.2D 106. 

FN4  THE GOVERNMENT CONTENDS THAT SUCH AN OBLIGATION SHOULD BE
IMPLIED FROM THE ACT AND FROM GENERAL PRINCIPLES OF THE COMMON LAW -
PARTICULARLY THE DOCTRINE THAT A GUARANTOR WHO PAYS THE DEBT OF ANOTHER
IS ENTITLED TO REIMBURSEMENT.  IN REGARD TO THE COMMON-LAW RIGHT OF A
GUARANTOR, WE ARE NOT PERSUADED FROM THE RECORD THAT THE INSURED
SERVICEMEN WERE INDEBTED TO THE INSURANCE COMPANIES FOR THE WARTIME
PREMIUMS EITHER UNDER THE ACT OR THE TERMS OF THEIR POLICIES.  WHERE NO
DEBT EXISTS THERE IS NO BASIS FOR APPLYING THE COMMON-LAW RULES OF
GUARANTY.  IN ANY EVENT, WE WOULD BE VERY HISITANT TO INFER A RIGHT TO
REIMBURSEMENT FROM THESE SERVICEMEN IN FAVOR OF THE GOVERNMENT BASED ON
A COMMON-LAW DOCTRINE WHICH WAS NOT REFERRED TO IN THE ACT OR IN ITS
CONGRESSIONAL HISTORY.  CF. UNITED STATES V. GILMAN, 347 U.S. 507. 

FN5  40 STAT. 444.  "THE ONLY CHANGE IN THIS ARTICLE (INSURANCE)
RELATES TO METHODS OF ADMINISTRATION."  H.R. REP. NO. 3001, 76TH CONG.,
3D SESS. 4. 

FN6  DECISIONS OF THE ADMINISTRATOR OF VETERANS' AFFAIRS, NO. 742
(APRIL 1947), VOL. 1, SUPP. 1, PP. 93, 98.  THE GOVERNMENT RELIES HERE
ON A DISCUSSION BETWEEN CONGRESSMEN VOORHIS AND ARENDS DURING THE HOUSE
DEBATES ON THE 1940 ACT.  86 CONG. REC., PART 12, 13132-13133. 
APPARENTLY THESE GENTLEMEN WERE NOT FAMILIAR WITH THE SPECIFIC
PROVISIONS OF THE ACT.  THIS IS NOT SURPRISING SINCE NEITHER WAS A
SPONSOR OF THE MEASURE.  MOVEOVER, SINCE THE 1940 ACT WAS A SUBSTANTIAL
REENACTMENT OF THE 1918 ACT, THERE WERE NO COMMITTEE HEARINGS TO INFORM
CONGRESSMEN OF THE PRECISE SCOPE AND EFFECT OF THE ACT.  AS NEITHER MR.
VOORHIS NOR MR. ARENDS WERE LAWYERS, IT CANNOT BE ASSUMED THAT THEY
WERE AWARE OF THE TECHNICAL COMMON-LAW THEORY OF GUARANTY WHICH THE
GOVERNMENT RELIES ON HERE.  WE THINK THE VETERANS' ADMINISTRATOR WAS
CORRECT IN CONCLUDING THAT THE LEGISLATIVE HISTORY, WHICH INCLUDES THE
VOORHIS-ARENDS COLLOQUY, "IS OF LITTLE, IF ANY, HELP" TO THE
GOVERNMENT'S CLAIM. 

FN7  SEE BOONE V. LIGHTNER, 319 U.S. 561, 565. 

FN8  "IF HE COMES BACK AND WANTS TO KEEP HIS INSURANCE IN EFFECT, I
TAKE IT THE PROPOSITION HERE IS THAT HE MUST THEN PAY THE GOVERNMENT;
BUT IF HE DOES NOT WANT TO KEEP THIS POLICY IN EFFECT HE STILL HAS THE
OPTION TO WALK AWAY AND LEAVE IT."  HEARINGS BEFORE THE SUBCOMMITTEE OF
THE SENATE COMMITTEE ON THE JUDICIARY ON S. 2859 AND H.R. 6361, 65TH
CONG., 1ST AND 2D SESS. 135. 

FN9  IN CLOSING THE ARGUMENT OVER REQUIRING THE SOLDIERS TO PAY, THE
FOLLOWING COLLOQUY TOOK PLACE BETWEEN MAJOR WIGMORE AND SENATOR REED:
"SENATOR REED:  ...  NOW, DO YOU THINK THAT WOULD BE UNDESIRABLE,
MAJOR, OR DO YOU THINK IT WOULD BE GREATLY TO BE PREFERRED THAT THE
GOVERNMENT JUST CARRY THE RISK? 

"MAJ. WIGMORE:  I CAN ONLY SPEAK FOR MYSELF IN THAT RESPECT; BUT,
SPEAKING FROM MY OWN JUDGMENT, IT WOULD SEEM TO ME THAT THAT IS GOING
FURTHER THAN THIS NATION OUGHT TO WISH TO GO AGAINST ITS SOLDIERS AND
SAILORS  ...  . 

"SENATOR REED:  ...  YOU REALLY THINK IT IS DESIRABLE THAT THE
GOVERNMENT SHOULD CARRY IT, REGARDLESS OF THE ATTEMPT TO REIMBURSE
ITSELF OUT OF THE MAN'S PAY?    "MAJ. WIGMORE:  I ONLY WANT TO POINT
OUT THE FACT THAT THE GOVERNMENT, IN THE WAR-RISK INSURANCE BILL  ...
HAS OFFERED TO GIVE GOVERNMENT INSURANCE TO SOLDIERS AND SAILORS AT A
RATE OF, I THINK, $8 A THOUSAND, WHICH I AM TOLD MEANS THAT THE
GOVERNEMNT PAYS THE ENTIRE EXPENSES OF ADMINISTRATION OF THAT INSURANCE
...  .  THEY HAVE THEREFORE CONTRIBUTED THAT ALREADY TO SOLDIERS AND
SAILORS IN PROVIDING INSURANCE.  IF THE GOVERNMENT HAS GONE THAT FAR,
IT SEEMS TO ME IT WOULD BE INCONSISTENT WITH THAT, IN PRINCIPLE, NOT TO
GO THIS FAR."  ID., AT 137-138. 

FN10  H.R. REP. NO. 181, 65TH CONG., 1ST SESS. 

FN11  ID., AT 8.    FN12  "THE AMOUNT PAID BY THE UNITED STATES TO AN
INSURER ON ACCOUNT OF APPLICATIONS APPROVED UNDER THE PROVISIONS OF
THIS ARTICLE, AS AMENDED, SHALL BECOME A DEBT DUE TO THE UNITED STATES
BY THE INSURED ON WHOSE ACCOUNT PAYMENT WAS MADE  ...  ."  56 STAT.
775. 

FN13  LETTER OF THE VETERANS' ADMINISTRATOR TO THE PRESIDENT OF THE
SENATE, APPENDED TO S. REP. NO. 716, 77TH CONG., 1ST SESS. 6. 

FN14  HEARINGS BEFORE THE HOUSE COMMITTEE ON MILITARY AFFAIRS ON H.R.
7029, 77TH CONG., 2D SESS. 38. 

FN15  EVEN THE VETERANS' ADMINISTRATION STATED IN A FORMAL DECISION
IN 1947 THAT: 

"FAIRNESS COMPELS ADMISSION THAT THE LEGISLATIVE HISTORY OF THE 1942
ACT REFLECTS A PROBABLE BELIEF, THOUGH AN INCORRECT ONE, ON THE PART OF
THE SEVENTY-SEVENTH CONGRESS THAT THE 1940 ACT (PASSED BY THE SEVENTY
SIXTH CONGRESS) HAD BEEN CONTRUED AS NOT GIVING RISE TO A DEBT OWING BY
THE INSURED TO THE GOVERNMENT UPON THE LATTER'S PAYMENT TO THE INSURER
OF THE AMOUNT BY WHICH THE PREMIUMS WITH INTEREST EXCEEDED THE CASH
SURRENDER VALUE."  DECISIONS OF THE ADMINISTRATOR OF VETERANS' AFFAIRS,
NO. 742 (APRIL 1947), VOL. 1, SUPP. 1, PP. 93, 103. 

FN16  ACCORDING TO THE GOVERNMENT'S FIGURES, 7,745 POLICIES WERE
BROUGHT WITHIN THE PROTECTION OF THE 1918 ACT; 476 OF THESE POLICIES
WERE ALLOWED TO LAPSE.  THE TOTAL AMOUNT OF BACK PREMIUMS PAID BY THE
GOVERNMENT ON THESE POLICIES WAS LESS THAN $20,000 OR APPROXIMATELY $42
PER POLICY, SHOWING THAT MAJOR WIGMORE'S PROPHECY AS TO THE SMALLNESS
OF THE GOVERNMENT'S LOSSES WAS A CORRECT ONE.  THE GOVERNMENT SOUGHT
REIMBURSEMENT ON ONLY 10 OF THESE 476 LAPSED POLICIES AND TOTAL
COLLECTIONS WERE $484.42.  RECORDS SUBMITTED SHOW THAT ALL COLLECTIONS
WERE OBTAINED FROM SOLDIERS WHO WERE STILL IN THE ARMY AT THE TIME THEY
WERE CALLED ON TO PAY.  THE DEMANDS FOR PAYMENT WENT THROUGH REGULAR
MILITARY CHANNELS. 

FN17  APPARENTLY THE FIRST TIME THE VETERANS' ADMINISTRATION EVER
OFFICIALLY INTERPRETED THE ACT AS AUTHORIZING THE GOVERNMENT TO BE
REIMBURSED FOR ITS PAYMENT OF PREMIUMS ON LAPSED POLICIES WAS IN
ADMINISTRATOR'S DECISION NO. 513, MARCH 1, 1943.  THIS DECISION HELD
THAT THE GOVERNMENT'S AGREEMENT TO CARRY POLICIES UNDER THE 1940 ACT
WAS A "GRATIUITOUS ASSUMPTION OF LIABILITY" WHICH HAD BEEN
RETROACTIVELY CHANGED BY THE 1942 AMENDMENT.  DECISIONS OF THE
ADMINISTRATOR OF VETERANS' AFFAIRS, NO. 513 (MARCH 1943), VOL 1, 781. 
HOWEVER WE AGREE WITH THE VIEW EXPRESSED IN A LATER ADMINISTRATOR'S
DECISION, NO. 742, THAT A SERVICEMAN'S LIABILITY UNDER THE 1940 ACT
MUST BE DETERMINED UNDER IT AND NOT UNDER THE 1942 ACT.  AND SEE LYNCH
V. UNITED STATES, 292 U.S. 571. 

FN18  LESS THAN TWO MONTHS AFTER THE 1940 ACT WAS PASSED, THE
DIRECTOR OF INSURANCE FOR THE VETERANS' ADMINISTRATION REPLYING TO A
TELEGRAPHIC INQUIRY STATED THAT "NO PROVISION IS MADE IN THE ACT FOR
COLLECTING FROM INSURED THE AMOUNT PAID BY GOVERNMENT TO INSURER." 
SHORTLY AFTERWARDS THE DIRECTOR MADE A SIMILAR STATEMENT TO AN
INSURANCE COMPANY REPRESENTATIVE. 

IN THE MEANTIME THE ASSISTANT DIRECTOR MADE THE FOLLOWING STATEMENT
FOR PUBLICATION IN AN INSURANCE JOURNAL:  "THERE IS NO PROVISION IN THE
ACT AT THIS TIME FOR COLLECTING FROM THE INSURED THE AMOUNT THAT THE
PREMIUM WITH INTEREST MAY EXCEED THE CASH SURRENDER VALUE AT THE TIME
OF TERMINATION."  THIS SAME INTERPRETATION WAS GIVEN BY THE ASSISTANT
DIRECTOR WHEN TESTIFYING BEFORE THE HOUSE COMMITTEE ON MILITARY AFFAIRS
IN FAVOR OF THE 1942 AMENDMENT.  SEE TEXT AT N. 14, SUPRA. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON AND MR. JUSTICE HARLAN
DISSENT FOR THE REASONS GIVEN BY CIRCUIT JUDGE HUXMAN IN UNITED STATES
V. HENDLER, 225 F.2D 106. 
..END :



UNITED STATES V. HOWARD, TRADING AS STOKES FISH CO. 352 U.S. 212 


NO. 52.  ARGUED DECEMBER 5, 1956 - DECIDED JANUARY 14, 1957 - REVERSED
AND REMANDED. 


THE FEDERAL BLACK BASS ACT MAKES IT UNLAWFUL FOR ANY PERSON TO DELIVER
BLACK BASS OR OTHER FISH FOR TRANSPORTATION FROM ANY STATE IF SUCH
TRANSPORTATION IS CONTRARY TO THE "LAW OF THE STATE."  RULE 14.01 OF
THE REGULATIONS OF THE FLORIDA GAME & FRESH WATER FISH COMMISSION
PROHIBITS THE TRANSPORTATION OF CERTAIN FRESH FISH OUT OF THE STATE;
AND SEC.  372.83 OF THE FLORIDA STATUTES MAKES IT A MISDEMEANOR TO
VIOLATE ANY RULE, REGULATION OR ORDER OF THE COMMISSION.  HELD:  RULE
14.01 OF THE COMMISSION'S REGULATIONS, AS ENFORCED BY SEC. 372.83 OF
THE FLORIDA STATUTES, IS A "LAW OF THE STATE" WITHIN THE MEANING OF THE
FEDERAL ACT.  PP. 213-219. 

(A)  UNITED STATES V. EATON, 144 U.S. 677, DISTINGUISHED.  PP. 215
217. 

(B)  BY FLA. STAT., SEC. 372.83, THE FLORIDA LEGISLATURE INTENDED TO
AND DID MAKE INFRACTION OF ANY COMMISSION REGULATION A VIOLATION OF
STATE LAW, PUNISHABLE AS A MISDEMEANOR.  PP.  216-217. 

(C)  THE RECORD DOES NOT SHOW THAT THE RULES OF THE FLORIDA
COMMISSION ARE OF SUCH A TEMPORARY NATURE AND SO UNACCOMPANIED BY THE
PROCEDURAL NICETIES OF RULE MAKING AS TO REQUIRE THAT RULE 14.01 BE
CONSIDERED NOT THE "LAW OF THE STATE" FOR THE PURPOSES OF THE FEDERAL
ACT.  PP. 217-218. 

(C)  THAT CONGRESS INTENDED TO EXTEND THE ENFORCEMENT GUARANTEES OF
THE BLACK BASS ACT TO SUCH REGULATIONS AS THOSE OF THE FLORIDA
COMMISSION IS THE MOST REASONABLE INTERPRETATION OF THE ACT, AND IT IS
SUPPORTED BY THE LEGISLATIVE HISTORY OF THE 1947 AMENDMENT TO THE ACT. 
PP. 218-219. 

UNITED STATES V. HOWARD, TRADING AS STOKES FISH CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

A FEDERAL CRIMINAL INFORMATION WAS FILED BY THE UNITED STATES AGAINST
LUDENIA HOWARD, TRADING AS STOKES FISH COMPANY, APPELLEE, IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, CHARGING
HER WITH A VIOLATION OF THE FEDERAL BLACK BASS ACT OF MAY 20, 1926, AS
AMENDED, C. 346, 44 STAT. 576, 46 STAT. 845, 61 STAT. 517, 66 STAT.
736, 16 U.S.C. SECS. 851-854.  THE ACT PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO DELIVER  ...  FOR
TRANSPORTATION  ...  FROM ANY STATE  ...  ANY BLACK BASS OR OTHER FISH,
IF (1) SUCH TRANSPORTATION IS CONTRARY TO THE LAW OF THE STATE  ...
FROM WHICH SUCH  ...  FISH  ...  IS TO BE TRANSPORTED  ...  ."  16
U.S.C. SEC. 852. 

THE INFORMATION STATED THAT APPELLEE DELIVERED FISH FOR
TRANSPORTATION ACROSS THE FLORIDA BORDER CONTRARY TO THE "LAWS OF THE
STATE OF FLORIDA."  THE RELEVANT FISHING PROVISIONS CONSISTED OF THE
RULES AND REGULATIONS OF THE FLORIDA GAME AND FRESH WATER FISH
COMMISSION AND A CRIMINAL PENALTY IMPOSED BY THE LEGISLATURE FOR
VIOLATION OF THE RULES.  THE DISTRICT COURT, HOWEVER, HELD THAT THE
RULES AND REGULATIONS DO NOT CONSTITUTE THE "LAW OF" FLORIDA WITHIN THE
MEANING OF THE BLACK BASS ACT AND ON APPELLEE'S MOTION QUASHED THE
INFORMATION.  AN APPEAL WAS BROUGHT HERE BY THE UNITED STATES PURSUANT
TO 18 U.S.C. SEC. 3731.  WE NOTED PROBABLE JURISDICTION.  351 U.S.
980. 

FLORIDA'S GAME COMMISSION WAS CREATED BY A 1942 CONSTITUTIONAL
AMENDMENT (ART. IV, SEC.  30, CONSTITUTION OF FLORIDA) WHICH PROVIDES
THAT: 

"AFTER JANUARY 1, 1943, THE MANAGEMENT, RESTORATION, CONSERVATION,
AND REGULATION, OF THE  ... FRESH-WATER FISH, OF THE STATE OF FLORIDA
...  SHALL BE VESTED IN (THE) COMMISSION  ...  ." 

IT WAS EMPOWERED BY THE SAME AMENDMENT: 

"TO FIX BAG LIMITS AND TO FIX OPEN AND CLOSED SEASONS, ON A STATE
WIDE, REGIONAL OR LOCAL BASIS, AS IT MAY FIND TO BE APPROPRIATE, AND TO
REGULATE THE MANNER AND METHOD OF TAKING, TRANSPORTING, STORING AND
USING  ...  FRESH-WATER FISH  ...  ." 

THE AMENDMENT FURTHER PROVIDES: 

"THE LEGISLATURE MAY ENACT ANY LAWS IN AID OF  ...  THE PROVISIONS OF
THIS AMENDMENT  ...  .  ALL LAWS FIXING PENALTIES FOR THE VIOLATION OF
THE PROVISIONS OF THIS AMENDMENT  ...  SHALL BE ENACTED BY THE
LEGISLATURE FROM TIME TO TIME." 

PURSUANT TO THIS AMENDMENT, THE FLORIDA LEGISLATURE AUTHORIZED THE
COMMISSION TO EXERCISE: 

"THE POWERS, DUTIES AND AUTHORITY GRANTED BY SEC. 30, ARTICLE IV, OF
THE CONSTITUTION OF FLORIDA, BY THE ADOPTION OF RULES, REGULATIONS AND
ORDERS  ...  ."  FLA. STAT. ANN., 1943, SEC. 372.021. 

ANOTHER STATUTE MAKES IT A MISDEMEANOR TO VIOLATE: 

"ANY RULE, REGULATION OR ORDER OF THE GAME AND FRESH WATER FISH
COMMISSION  ... ."  FLA.  STAT., 1955, SEC. 372.83. 

RULE 14.01 OF THE COMMISSION'S RULES PROHIBITS THE TRANSPORTATION OF
CERTAIN FRESH FISH OUTSIDE THE STATE; IT IS THIS REGULATION THAT
LUDENIA HOWARD IS ACCUSED OF BREAKING.  (FN1)  BECAUSE THE INFORMATION
WAS QUASHED FOR FAILURE TO STATE A FEDERAL CRIME, WE ASSUME THE ALLEGED
ACTS OF APPELLEE OCCURRED AND THAT SHE IS SUBJECT TO CRIMINAL
PROSECUTION IN FLORIDA PURSUANT TO SEC. 372.83 OF THE FLORIDA STATUTES,
AS SET OUT ABOVE. 

THE SOLE QUESTION PRESENTED IS WHETHER RULE 14.01 OF THE COMMISSION'S
REGULATIONS, AS ENFORCED BY SEC. 372.83 OF THE FLORIDA STATUTES, IS A
"LAW" OF THE STATE OF FLORIDA AS THAT TERM IS USED IN THE FEDERAL ACT. 

THIS COURT HAS REPEATEDLY RULED, IN OTHER CIRCUMSTANCES, THAT ORDERS
OF STATE ADMINISTRATIVE AGENCIES ARE THE LAW OF THE STATE.  IN GRANT
TRUNK R. CO. V. INDIANA R. COMM'N, 221 U.S. 400, 403, THE COURT STATED,
CITING PRENTIS V. ATLANTIC COAST LINE CO., 211 U.S. 210, 226: 

"THE ORDER (OF THE INDIANA RAILROAD COMMISSION)  ...  IS A LAW OF THE
STATE WITHIN THE MEANING OF THE CONTRACT CLAUSE OF THE CONSTITUTION
...  ." 

AND, IN LAKE ERIE & W.R. CO. V. PUBLIC UTILITIES COMM'N, 249 U.S.
422, 424, IT WAS SAID THAT AN ORDER OF THE STATE PUBLIC UTILITIES
COMMISSION "BEING LEGISLATIVE IN ITS NATURE  ...  IS A STATE LAW WITHIN
THE MEANING OF THE CONSTITUTION OF THE UNITED STATES AND THE LAWS OF
CONGRESS REGULATING OUR JURISDICTION."  A SIMILAR STATEMENT MAY BE
FOUND IN ARKADELPHIA CO. V. ST. LOUIS S.W.R. CO., 249 U.S. 134, 141. 

IT WAS SUGGESTED THAT THE ACTION OF THE COURT BELOW IS SUPPORTED BY
UNITED STATES V. EATON, 144 U.S. 677.  WE BELIEVE THE CASE IS
INAPPOSITE.  IT INVOLVED THE REGULATION OF MANUFACTURERS AND DEALERS IN
OLEOMARGARINE UNDER 24 STAT. 209.  SECTION 18 OF THE ACT PROVIDED A
CRIMINAL PENALTY FOR THE KNOWING OR WILLFUL FAILURE "TO DO, OR CAUSE TO
BE DONE, ANY OF THE THINGS REQUIRED BY LAW."  SECTION 5 REQUIRED
MANUFACTURERS TO KEEP CERTAIN RECORDS.  A SIMILAR REQUIREMENT WAS
IMPOSED UPON WHOLESALERS BY A REGULATION MADE BY THE COMMISSIONER OF
INTERNAL REVENUE PURSUANT TO SEC. 20.  THE DEFENDANT IN THE EATON CASE,
A WHOLESALER, FAILED TO KEEP THE PROPER RECORDS, BUT THIS COURT HELD HE
HAD NOT COMMITTED A CRIME UNDER SEC. 18: 

"REGULATIONS PRESCRIBED BY THE PRESIDENT AND BY THE HEADS OF
DEPARTMENTS, UNDER AUTHORITY GRANTED BY CONGRESS, MAY BE REGULATIONS
PRESCRIBED BY LAW, SO AS LAWFULLY TO SUPPORT ACTS DONE UNDER THEM AND
IN ACCORDANCE WITH THEM, AND MAY THUS HAVE, IN A PROPER SENSE, THE
FORCE OF LAW; BUT IT DOES NOT FOLLOW THAT A THING REQUIRED BY THEM IS A
THING SO REQUIRED BY LAW AS TO MAKE THE NEGLECT TO DO THE THING A
CRIMINAL OFFENCE IN A CITIZEN, WHERE A STATUTE DOES NOT DISTINCTLY MAKE
THE NEGLECT IN QUESTION A CRIMINAL OFFENSE."  ID., AT 688. 

THE COURT MADE PARTICULAR MENTION OF THE FACT THAT THE ACT EXPRESSLY
REQUIRED MANUFACTURERS TO KEEP CERTAIN BOOKS, BUT MADE NO SUCH
REQUIREMENT OF WHOLESALERS.  ID.  (FN2)  IN SINGER V. UNITED STATES,
323 U.S. 338, 345, WE SAID: 

"UNITED STATES V. EATON TURNED ON ITS SPECIAL FACTS, AS UNITED STATES
V. GRIMAUD, 220 U.S. 506, 518-519, EMPHASIZES.  IT HAS NOT BEEN
CONSTRUED TO STATE A FIXED PRINCIPLE THAT A REGULATION CAN NEVER BE A
'LAW' FOR PURPOSES OF CRIMINAL PROSECUTIONS.  IT MAY OR MAY NOT BE,
DEPENDING ON THE STRUCTURE OF THE PARTICULAR STATUTE." 

SEE ALSO CAHA V. UNITED STATES, 152 U.S. 211, 219.  HERE, IT IS
BEYOND QUESTION THAT THE FLORIDA LEGISLATURE, IN FLA. STAT., SEC.
372.83, INTENDED TO AND DID MAKE INFRACTION OF ANY COMMISSION
REGULATION A VIOLATION OF STATE LAW, PUNISHABLE AS A MISDEMEANOR. 

APPELLEE ARGUES THAT THE RULES OF THE FLORIDA COMMISSION ARE SO
SUBJECT TO CHANGE THAT THEY LACK SUFFICIENT SUBSTANCE AND PERMANENCE TO
BE THE "LAW" OF FLORIDA.  WE NEED NOT DECIDE NOW WHETHER A STATE AGENCY
COULD MAKE A RULE OF SUCH A TEMPORARY NATURE AND SO UNACCOMPANIED BY
THE PROCEDURAL NICETIES OF RULE MAKING THAT THE DECLARATION SHOULD NOT
BE CONSIDERED THE LAW OF THE STATE FOR PURPOSES OF A STATUTE SUCH AS
THE BLACK BASS ACT.  THESE CONSIDERATIONS FORMED NO PART OF THE OPINION
BELOW.  MOREOVER APPELLEE HAS NOT DEMONSTRATED THAT THE RULE HERE
INVOLVED IS OF SUCH A CHARACTER. 

COMMISSION PROMULGATION OF ORDERS IS REGULATED BY SEC. 372.021 OF 14
FLA. STAT. ANN., A LEGISLATIVE ENACTMENT.  IT PROVIDES THAT NO
REGULATION OR AMENDMENT TO A REGULATION IS EFFECTIVE UNTIL 30 DAYS
AFTER THE FILING OF A CERTIFIED COPY OF SUCH PROVISIONS WITH THE
SECRETARY OF STATE.  THE STATUTE ALSO DIRECTS THAT ANY CHANGE IN THE
TYPE OF REGULATION INVOLVED HERE IS TO BE FILED IN THE OFFICE OF EACH
COUNTY JUDGE AND THAT CHANGES MUST BE PUBLISHED IN EACH COUNTY IN A
NEWSPAPER OF GENERAL CIRCULATION.  (FN3)  WE ARE ADVISED BY THE
GOVERNMENT'S BRIEF THAT THE COMMISSION COMPILES ITS RULES IN A CODE
BOOK WHICH IS CIRCULATED WITHOUT COST TO ALL COUNTY JUDGES, AS IS
DIRECTED BY STATUTE, AND ALSO TO PRINCIPAL SPORTING GOODS AND LICENSE
DEALERS.  IN FACT THEY SEEM TO BE AVAILABLE TO ANYONE REQUESTING THEM
FROM THE COMMISSION.  WE ARE ALSO TOLD THAT IT IS THE COMMISSION'S
PRACTICE TO CONDUCT PUBLIC HEARINGS TO GIVE EVERYONE AN OPPORTUNITY TO
AIR HIS OWN VIEWS ON PROPOSED CHANGES IN THE RULES.  NONE OF THESE
ASSERTIONS IS CHALLENGED BY APPELLEE. 

WE RECOGNIZE THAT NOT ALL THE ABOVE-DESCRIBED PROCEDURES ARE
MANDATORY AND THAT WHETHER ANY OF THEM WAS EMPLOYED WITH THE ENACTMENT
OF RULE 14.01 CANNOT BE ASCERTAINED FROM THE RECORD AT THIS TIME. 
HOWEVER, THE FACT THAT IT IS THE ASSERTED PRACTICE OF THE COMMISSION TO
COMPLY WITH THEM SUGGESTS A POTENT ANSWER TO APPELLEE'S CHARGE OF
IMPERMANENCE.  MOREOVER, IT IS NOT INAPPROPRIATE FOR US TO NOTE THAT
TRANSPORTATION OF SOME SPECIES OF FISH COVERED BY THIS INFORMATION HAS
BEEN PROHIBITED IN FLORIDA SINCE 1927.  FLA. STAT. ANN., 1943, SEC.
372.29, FLORIDA LAWS, 1929, C. 13644, SEC. 35. 

THE STATE OF FLORIDA PREFERS TO ENTRUST THE REGULATION OF ITS WILD
LIFE CONSERVATION PROGRAM TO A GAME COMMISSION.  SUCH A PREFERENCE IS
IN ACCORDANCE WITH THE PRACTICE OF 28 STATES THAT HAVE VESTED FULL
REGULATORY AUTHORITY IN COMMISSIONS.  ONLY 6 STATES RESERVE THAT FULL
AUTHORITY TO THEIR LEGISLATURES.  SPORT FISHING INSTITUTE BULLETIN, NO.
26, P. 60 (JANUARY 1954).  MOREOVER, A DOCUMENT PREPARED BY THE
DEPARTMENT OF THE INTERIOR AND SUBMITTED TO US BY THE GOVERNMENT AT OUR
REQUEST SHOWS THAT EVEN IN 1926, THE YEAR THE BLACK BASS ACT WAS FIRST
PASSED, SIGNIFICANT RULE-MAKING POWER WAS ENTRUSTED TO GAME COMMISSIONS
OR COMMISSIONERS IN SOME 20 STATES.  (FN4) 

THAT THE CONGRESSIONAL PURPOSE WAS TO EXTEND THE ENFORCEMENT
GUARANTEES OF THE BLACK BASS ACT TO THESE REGULATIONS IS THE MOST
REASONABLE INTERPRETATION OF THE ACT AND IS AN INTERPRETATION SUPPORTED
BY THE LEGISLATIVE HISTORY OF THE 1947 AMENDMENT TO THE ACT.  THE
AMENDMENT, WHICH MADE THE PROVISIONS OF THE ACT APPLICABLE TO ALL GAME
FISH, WAS ACCOMPANIED BY SENATE AND HOUSE REPORTS CONTAINING THE
FOLLOWING LANGUAGE: 

"THE BILL IS INTENDED TO SUPPLEMENT STATE LAWS APPLYING TO PROTECTION
OF GAME FISH.  ... STATE LAWS BECOME INEFFECTUAL WHEN FISH TAKEN IN
VIOLATION OF THE LAW CROSS THE STATE LINE.  IF WE ARE TO PROTECT GAME
FISH, AN IMPORTANT NATURAL RESOURCE, THE FEDERAL GOVERNMENT MUST
COLLABORATE IN THE ENFORCEMENT OF PROTECTIVE LAWS AND REGULATIONS AT
THE POINT WHERE STATE JURSIDICTION ENDS."  S. REP. NO. 288, 80TH CONG.,
1ST SESS. 2; H.R. REP. NO. 986, 80TH CONG., 1ST SESS.

ACCORDINGLY WE HOLD THAT THE PHRASE "LAW OF THE STATE," AS USED IN
THIS ACT, IS SUFFICIENTLY BROAD TO ENCOMPASS THE TYPE OF REGULATION
USED IN FLORIDA.  REVERSED AND REMANDED. 

FN1 NO PERSON  ...  SHALL  ...  TRANSPORT, TRANSPORT FOR SALE, OR
TRANSPORT OUT OF THE STATE OF FLORIDA ANY LARGE OR SMALL MOUTH BLACK
BASS, SPECKLED PERCH, JACK, SHELL CRACKER, WARMOUTH PERCH, RED BREAST,
PIKE, STUMP KNOCKER, SUN FISH, OR CANADIAN SUNFISH, OR ANY OTHER
SPECIES OF BREAM; ... ." 

FN2  THE COURT ALSO PAID SPECIAL NOTE TO THE FACT THAT SUBSEQUENT TO
THE ALLEGED ACTS OF EATON, BUT PRIOR TO ITS DECISION, CONGRESS AMENDED
THE OLEOMARGARINE ACT TO EXPRESSLY REQUIRE THE KEEPING OF BOOKS BY
WHOLESALERS.  144 U.S., AT 685-686, 688.  THE COURT NOTED THIS FACTOR
IN EATON WHEN DISCUSSING THE EATON CASE IN CAHA V. UNITED STATES, 152
U.S. 211, 220. 

FN3  MOST FISHERMEN MUST SECURE A FISHING LICENSE (THEY MAY BE
OBTAINED AT THE OFFICE OF ANY COUNTY JUDGE) AND A STATUTE PROVIDES THAT
THE "LICENSE SHALL CONTAIN ON THE BACK THEREOF A SYNOPSIS OF THE  ...
FRESH WATER FISH LAWS OF THE STATE."  FLA. STAT., 1955, SEC. 372.69. 
WHETHER THE RULE HERE INVOLVED IS PRINTED ON APPELLEE'S LICENSE,
INDEED, WHETHER APPELLEE EVEN HAS A LICENSE, IS NOT SHOWN BY THE RECORD
AT THIS STATE OF THE PROCEEDINGS. 

FN4  SEE, E.G., SUPPLEMENT TO THE CODES AND GENERAL LAWS OF
CALIFORNIA, 1925-1927, ACT OF MAY 23, 1925, SEC. 3 (ACT 2895); LAWS OF
MAINE, 1917, C. 219, SEC. 2; NEW YORK LAWS, 1912, C. 318. 
..END :













LEITER MINERALS, INC., V. UNITED STATES 352 U.S. 220 


NO. 26.  ARGUED NOVEMBER 6-7, 1956 - DECIDED JANUARY 14, 1957 - 224 F.2D
381, MODIFIED AND AFFIRMED. 


PETITIONER FILED A PETITORY ACTION IN A LOUISIANA STATE COURT AGAINST
RESPONDENT MINERAL LESSEES OF THE UNITED STATES, SEEKING TO HAVE ITSELF
DECLARED OWNER OF THE MINERAL RIGHTS UNDER LAND OWNED BY THE UNITED
STATES, AND AN ACCOUNTING FOR OIL AND OTHER MINERALS REMOVED BY
RESPONDENT LESSEES UNDER THEIR LEASE FROM THE UNITED STATES. 
PETITIONER'S CLAIM WAS FOUNDED ON A LOUISIANA STATUTE, WHICH ALLEGEDLY
MADE "IMPRESCRIPTIBLE" A RESERVATION OF MINERAL RIGHTS IN A DEED TO THE
UNITED STATES BY ITS PREDECESSOR IN TITLE.  THE UNITED STATES THEN
BROUGHT SUIT AGAINST PETITIONER AND OTHER INTERESTED PARTIES IN THE
FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA TO QUIET
TITLE IN THE MINERAL RIGHTS AND FOR A PRELIMINARY INJUNCTION TO
RESTRAIN PETITIONER FROM PROSECUTING ITS ACTION IN THE STATE COURT. 
THE DISTRICT COURT ISSUED THE INJUNCTION AND THE COURT OF APPEALS
AFFIRMED.  HELD: 

1.  28 U.S.C. SEC. 2283, WHICH RESTRICTS THE GRANTING OF INJUNCTIONS
BY FEDERAL COURTS TO STAY PROCEEDINGS IN STATE COURTS, IS INAPPLICABLE
TO STAYS SOUGHT BY THE UNITED STATES.  PP. 224-226. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, THE GRANTING OF THE INJUNCTION
WAS PROPER.  UNITED STATES V. BANK OF NEW YORK & TRUST CO., 296 U.S.
463, DISTINGUISHED.  PP. 226-228. 

3.  THE JUDGMENT OF THE COURT OF APPEALS IS MODIFIED TO PERMIT AN
INTERPRETATION OF THE STATE STATUTE TO BE SOUGHT WITH EVERY EXPEDITION
IN THE STATE COURT.  PP. 228-230. 

LEITER MINERALS, INC., V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS FOR DECISION IMPORTANT QUESTIONS REGARDING THE
APPLICABILITY TO THE UNITED STATES OF THE RESTRICTIONS AGAINST STAY OF
STATE COURT PROCEEDINGS CONTAINED IN 28 U.S.C. SEC. 2283 AND THE
PROPRIETY OF THE INJUNCTION DECREED BY THE DISTRICT COURT AND SUSTAINED
BY THE COURT OF APPEALS.  PETITIONER IN 1953 HAD FILED A PETITORY
ACTION IN A LOUISIANA STATE COURT AGAINST RESPONDENT-MINERAL-LESSEES OF
THE UNITED STATES.  IN THAT ACTION, A SUIT BY ONE OUT OF POSSESSION
CLAIMING TITLE TO, AND POSSESSION OF, IMMOVABLES, PETITIONER SOUGHT TO
HAVE ITSELF DECLARED OWNER OF THE MINERAL RIGHTS UNDER LAND OWNED BY
THE UNITED STATES, AND IT ALSO SOUGHT AN ACCOUNTING FOR OIL AND OTHER
MINERALS REMOVED BY RESPONDENT-LESSEES UNDER THEIR LEASE FROM THE
UNITED STATES.  PETITIONER FOUNDED ITS CLAIM ON LOUISIANA ACT NO. 315
OF 1940, LA. REV. STAT., 1950, SEC. 9:5806, WHICH, IT ALLEGED, MADE
"IMPRESCRIPTIBLE" A RESERVATION OF MINERAL RIGHTS IN A DEED OF DECEMBER
21, 1938, TO THE UNITED STATES BY ITS PREDECESSOR IN TITLE.  (FN1) 

RESPONDENT-LESSEES FILED EXCEPTIONS IN THE STATE COURT PROCEEDINGS,
URGING THAT UNDER LOUISIANA LAW THE LESSOR SHOULD BE MADE A PARTY AND
THE LESSEES DISCHARGED FROM THE SUIT, THAT THIS WAS ESSENTIALLY A SUIT
AGAINST THE UNITED STATES, WHICH HAD NOT CONSENTED TO BE SUED, THAT THE
UNITED STATES WAS AN INDISPENSABLE PARTY, AND THAT NO CAUSE OF ACTION
HAD BEEN STATED.  THE STATE TRIAL COURT FOUND THAT A CAUSE OF ACTION
HAD BEEN STATED, AND IT OVERRULED THE EXCEPTIONS. 

AT THIS POINT THE UNITED STATES, JOINING PETITIONER AND OTHER
INTERESTED PARTIES AS DEFENDANTS, BROUGHT THE PRESENT SUIT IN THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA TO QUIET TITLE TO
THE MINERAL RIGHTS; IT ALSO SOUGHT A PRELIMINARY INJUNCTION TO RESTRAIN
PETITIONER FROM PROSECUTING ITS ACTION IN THE STATE COURT.  THE UNITED
STATES BASED ITS CLAIM OF OWNERSHIP ON THE PROVISION IN THE 1938 DEED
FROM PETITIONER'S PREDECESSOR IN TITLE THAT THE RESERVATION OF MINERAL
RIGHTS WOULD EXPIRE ON APRIL 1, 1945, SUBJECT TO CERTAIN CONDITIONS NOT
MATERIAL TO THIS CASE.  THE UNITED STATES CLAIMED THAT IRREPARABLE
INJURY IN THE FORM OF LOSS OF ROYALTIES WOULD RESULT FROM ANY
TEMPORARY, WRONGFUL DISPOSSESSION OF ITS LESSEES BY THE STATE COURT
PROCEEDINGS.  AFFIDAVITS WERE ALSO SUBMITTED IN SUPPORT OF THE CLAIM
THAT PERMANENT LOSS OF WELLS CURRENTLY PRODUCING OIL WOULD PROBABLY
RESULT FROM ANY TEMPORARY CESSATION OF PRODUCTION.  THE PETITIONER
MOVED TO DISMISS THE UNITED STATES' COMPLAINT ON THE GROUND THAT THE
STATE COURT HAD ALREADY ASSUMED JURISDICTION OVER THE PROPERTY IN
QUESTION; IN THE ALTERNATIVE, PETITIONER MOVED TO STAY THE FEDERAL
PROCEEDINGS PENDING DETERMINATION OF THE STATE COURT ACTION BECAUSE
QUESTIONS OF STATE LAW WERE INVOLVED. 

THE DISTRICT COURT HELD THAT, SINCE THE UNITED STATES WAS NOT A PARTY
TO THE STATE COURT SUIT, THE TITLE OF THE UNITED STATES COULD BE TRIED
ONLY IN THE FEDERAL COURT ACTION AND THAT AN INJUNCTION AGAINST
PROSECUTION OF THE STATE PROCEEDINGS SHOULD ISSUE TO PROTECT ITS
JURISDICTION PENDING DETERMINATION OF THE OWNERSHIP OF THE PROPERTY. 
127 F. SUPP. 439.  THE COURT OF APPEALS AFFIRMED, HOLDING THAT THE
PRELIMINARY INJUNCTION WAS PROPER BECAUSE "THE DISTRICT COURT UNDER THE
CLEAR PROVISIONS OF THE STATUTE, 28 U.S.C. SEC. 1345, BECAME VESTED
WITH EXCLUSIVE JURISDICTION TO DETERMINE THE TITLE OF THE UNITED STATES
TO THE MINERAL RIGHTS CLAIMED BY APPELLANT."  224 F.2D 381, 383-384. 
BECAUSE OF THE PRESENCE OF IMPORTANT AND DIFFICULT QUESTIONS OF FEDERAL
STATE RELATIONS, QUESTIONS MORE DIFFICULT THAN THE GOVERNMENT APPEARS
TO HAVE FOUND THEM, WE GRANTED CERTIORARI.  350 U.S. 964. 

28 U.S.C. SEC. 2283 PROVIDES: 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

IT MUST FIRST BE DECIDED WHETHER THIS SECTION APPLIES TO STAYS SOUGHT
BY THE UNITED STATES BECAUSE DIFFERENT ANSWERS TO THIS QUESTION WILL
PUT DIFFERENT ASPECTS ON OTHER ISSUES IN THE CASE.  AN ANALOGOUS
PROBLEM WAS PRESENTED IN UNITED STATES V. UNITED MINE WORKERS, 330 U.S.
258, WHERE THE COURT HELD THAT THE PROVISION OF THE NORRIS-LAGUARDIA
ACT, 47 STAT. 70, 29 U.S.C. SEC. 101, THAT NO FEDERAL COURT HAD
JURISDICTION, SUBJECT TO QUALIFICATIONS, TO ISSUE AN INJUNCTION IN
LABOR DISPUTES TO PROHIBIT CERTAIN ACTS, DID NOT APPLY TO THE UNITED
STATES.  THE NORRIS-LAGUARDIA ACT, LIKE 28 U.S.C. SEC. 2283, EFFECTED,
IN GENERAL LANGUAGE, A LIMITATION ON THE JURISDICTION OF THE FEDERAL
COURTS.  FURTHERMORE, SINCE IT WAS LARGELY THE DIVERSITY JURISDICTION
WHICH SPAWNED THE SUBSTANTIVE PROBLEMS THAT THE NORRIS-LAGUARDIA ACT
REMOVED FROM THE FEDERAL COURTS, THE LIMITATIONS ON THE FEDERAL COURTS
IMPOSEED BY THE NORRIS-LAGUARDIA ACT, LIKE THOSE OF 28 U.S.C. SEC.
2283, WERE IN AN AREA OF FEDERAL-STATE RELATIONS CALLING FOR PARTICULAR
CIRCUMSPECTION IN ADJUDICATION.  IN INTERPRETING THE GENERAL LANGUAGE
OF THE NORRIS-LAGUARDIA ACT, THE COURT RELIED HEAVILY ON "AN OLD AND
WELL-KNOWN RULE," ALBEIT A RULE OF CONSTRUCTION, "THAT STATUTES WHICH
IN GENERAL TERMS DIVEST PRE-EXISTING RIGHTS OR PRIVILEGES WILL NOT BE
APPLIED TO THE SOVEREIGN WITHOUT EXPRESS WORDS TO THAT EFFECT."  330
U.S., AT 272.  WHILE, STRICTLY SPEAKING, ANY "PRE-EXISTING" RIGHTS
WOULD HAVE TO BE FOUND IN THE 1789-1793 PRE-STATUTE PERIOD, (FN2) THE
RATIONALE OF THE RULE REQUIRES NOT THAT THE RIGHTS BE "PRE-EXISTING"
BUT RATHER THAT THEY WOULD EXIST APART FROM THE STATUTE.  THERE CAN BE
NO DOUBT, APART FROM THE RESTRICTIONS OF 28 U.S.C. SEC. 2283, OF THE
RIGHT OF THE UNITED STATES TO ENJOIN STATE COURT PROCEEDINGS WHENEVER
THE PREREQUISITES FOR RELIEF BY WAY OF INJUNCTION BE PRESENT.  TREATING
THE RULE INVOKED IN THE UNITED MINE WORKERS CASE MERELY AS AN AID TO
CONSTRUCTION, IT WOULD BY ITSELF LEAD US TO HOLD THAT THE GENERAL
LANGUAGE OF 28 U.S.C. SEC. 2283 DID NOT APPLY TO THE UNITED STATES IN
THE ABSENCE OF COUNTERVAILING CONSIDERATIONS, SUCH AS SIGNIFICANT
LEGISLATIVE HISTORY POINTING TOWARD ITS INCLUSION OR INFERENCES CLEARLY
TO BE DRAWN FROM RELEVANT PRESUPPOSITIONS FOR SO INCLUDING IT. 

IN UNITED MINE WORKERS, THE COURT DID NOT RELY ENTIRELY ON THE RULE
OF CONSTRUCTION BECAUSE ITS READING OF THE ACT AS A WHOLE AND THE
LEGISLATIVE HISTORY SUPPORTED THE CONCLUSION THAT THE UNITED STATES WAS
NOT TO BE INCLUDED.  IN THIS CASE, THERE IS NO LEGISLATIVE MATERIAL TO
SUPPORT OR TO GAINSAY THE APPLICABILITY OF THE RULE OF CONSTRUCTION. 
THERE IS, HOWEVER, A PERSUASIVE REASON WHY THE FEDERAL COURT'S POWER TO
STAY STATE COURT PROCEEDINGS MIGHT HAVE BEEN RESTRICTED WHEN A PRIVATE
PARTY WAS SEEKING THE STAY BUT NOT WHEN THE UNITED STATES WAS SEEKING
SIMILAR RELIEF.  THE STATUTE IS DESIGNED TO PREVENT CONFLICT BETWEEN
FEDERAL AND STATE COURTS.  THIS POLICY IS MUCH MORE COMPELLING WHEN IT
IS THE LITIGATION OF PRIVATE PARTIES WHICH THREATENS TO DRAW THE TWO
JUDICIAL SYSTEMS INTO CONFLICT THAN WHEN IT IS THE UNITED STATES WHICH
SEEKS A STAY TO PREVENT THREATENED IRREPARABLE INJURY TO A NATIONAL
INTEREST.  THE FRUSTRATION OF SUPERIOR FEDERAL INTERESTS THAT WOULD
ENSUE FROM PRECLUDING THE FEDERAL GOVERNMENT FROM OBTAINING A STAY OF
STATE COURT PROCEEDINGS EXCEPT UNDER THE SEVERE RESTRICTIONS OF 28
U.S.C. SEC. 2283 WOULD BE SO GREAT THAT WE CANNOT REASONABLY IMPUTE
SUCH A PURPOSE TO CONGRESS FROM THE GENERAL LANGUAGE OF 28 U.S.C.  SEC.
2283 ALONE.  IT IS ALWAYS DIFFICULT TO FEEL CONFIDENT ABOUT CONSTRUING
AN AMBIGUOUS STATUTE WHEN THE AIDS TO CONSTRUCTION ARE SO MEAGER, BUT
THE INTERPRETATION EXCLUDING THE UNITED STATES FROM THE COVERAGE OF THE
STATUTE SEEMS TO US PREFERABLE IN THE CONTEXT OF HEALTHY FEDERAL-STATE
REGULATIONS.  (FN3) 

THE QUESTION STILL REMAINS WHETHER THE GRANTING OF AN INJUNCTION WAS
PROPER IN THE CIRCUMSTANCES OF THIS CASE.  WE START WITH ONE
CERTAINTY.  THE SUIT IN THE FEDERAL COURT WAS THE ONLY ONE THAT COULD
FINALLY DETERMINE THE BASIC ISSUE IN THE LITIGATION - WHETHER THE TITLE
OF THE UNITED STATES TO THE MINERAL RIGHTS WAS AFFECTED BY LOUISIANA
ACT NO. 315 OF 1940.  THE UNITED STATES WAS NOT A PARTY TO THE STATE
SUIT AND, UNDER SETTLED PRINCIPLES, TITLE TO LAND IN POSSESSION OF THE
UNITED STATES UNDER A CLAIM OF INTEREST CANNOT BE TRIED AS AGAINST THE
UNITED STATES BY A SUIT AGAINST PERSONS HOLDING UNDER THE AUTHORITY OF
THE UNITED STATES.  SEE UNITED STATES V. LEE, 106 U.S. 196.  ALTHOUGH
THE STATE COURT MIGHT MOULD PETITIONER'S SUIT TO TRY TITLE INTO A SUIT
FOR POSSESSION OR MIGHT MERELY ORDER RESPONDENT-LESSEES TO ACCOUNT FOR
MINERALS REMOVED, NEVERTHELESS SUCH PROCEEDINGS COULD NOT SETTLE THE
BASIC ISSUE IN THE LITIGATION AND MIGHT WELL CAUSE CONFUSION IF THEY
RESULTED IN A JUDGMENT INCONSISTENT WITH THAT SUBSEQUENTLY RENDERED BY
THE FEDERAL COURT. 

PETITIONER RELIES HEAVILY ON UNITED STATES V. BANK OF NEW YORK &
TRUST CO., 296 U.S. 463.  THERE, IN A FEDERAL DISTRICT COURT
PROCEEDING, THE UNITED STATES WAS CLAIMING BY ASSIGNMENT CERTAIN FUNDS
OF THREE RUSSIAN INSURANCE COMPANIES THAT WERE BEING HELD IN THE
CUSTODY OF A STATE COURT, IN CONNECTION WITH THE LIQUIDATION OF THE
COMPANIES, SUBJECT TO COURT ORDERS CONCERNING DISTRIBUTION TO CLAIMANTS
UNDER THE STATE INSURANCE LAWS.  ON THE BASIS OF THIS CLAIM, THE UNITED
STATES SOUGHT TO ENJOIN DISTRIBUTION OF THE FUNDS AND TO REQUIRE
PAYMENT OF THEM TO IT.  THIS COURT, AFFIRMED DISMISSAL OF THE
COMPLAINTS AND DENIAL OF THE INUUNCTION, HELD THAT THE STATE COURT HAD
OBTAINED JURISDICTION OVER THE FUNDS FIRST AND THAT THE LITIGATION
SHOULD BE RESOLVED IN THAT COURT.  THE COURT ALSO NOTED THAT THERE WERE
NUMEROUS OTHER CLAIMANTS, INDISPENSABLE PARTIES, WHO HAD NOT BEEN MADE
PARTIES TO THE FEDERAL COURT SUIT.  IN REMITTING THE UNITED STATES TO
THE STATE COURT, THE COURT SAW NO "IMPAIRMENT OF ANY RIGHTS" OF THE
UNITED STATES OR "ANY SACRIFICE OF ITS PROPER DIGNITY AS A SOVEREIGN." 
ID., AT 480-481. 

THE SITUATION IN THE PRESENT CASE IS DIFFERENT.  ALL THE PARTIES IN
THE STATE COURT PROCEEDING HAVE BEEN JOINED IN THE FEDERAL PROCEEDING. 
MOREOVER, THE BANK OF NEW YORK CASE PRESENTED THE MORE UNUSUAL
SITUATION WHERE THE UNITED STATES, LIKE ANY PRIVATE CLAIMANT, MADE A
CLAIM AGAINST FUNDS THAT IT NEVER POSSESSED AND THAT WERE IN THE HANDS
OF DEPOSITARIES APPOINTED BY THE STATE COURT.  IN THIS CASE, A PRIVATE
PARTY IS SEEKING BY A STATE PROCEEDING TO OBTAIN PROPERTY CURRENTLY IN
THE HANDS OF PERSONS HOLDING UNDER THE UNITED STATES; THE UNITED STATES
IS SEEKING TO PROTECT THAT POSSESSION AND QUIET TITLE BY A FEDERAL
COURT PROCEEDING.  THEREFORE, SINCE THE POSITION OF THE UNITED STATES
IS ESSENTIALLY A DEFENSIVE ONE, WE THINK THAT IT SHOULD BE PERMITTED TO
CHOOSE THE FORUM IN THIS CASE, EVEN THOUGH THE STATE LITIGATION HAS THE
ELEMENTS OF AN ACTION CHARACTERIZED AS QUASI IN REM.  WE THEREFORE HOLD
THAT THE DISTRICT COURT PROPERLY EXERCISED ITS JURSIDICTION TO
ENTERTAIN THE SUIT IN THE FEDERAL COURT AND TO PREVENT THE EFFECTUATION
OF STATE COURT PROCEEDINGS THAT MIGHT CONFLICT WITH THE ULTIMATE
FEDERAL COURT JUDGMENT. 

ONE FURTHER ASPECT OF THE CASE REMAINS TO BE CONSIDERED.  THE
DISTRICT COURT ADVANCED THIS ADDITIONAL GROUND FOR ITS DECISION: 

"MOREOVER, IF THE STATE COURT SUIT IS ALLOWED TO PROCEED TO FINAL
JUDGMENT, THE RIGHTS OF THE UNITED STATES TO THE PROPERTY IN QUESTION
WILL ACTUALLY BE DETERMINED 'BEHIND ITS BACK'  ...  FOR THE REASON
THAT, SINCE OWNERSHIP OF THESE MINERAL RIGHTS WILL TURN ON AN
INTERPRETATION OF A STATE STATUTE  ...  THIS COURT AND THE APPELLATE
FEDERAL COURTS MAY BE REQUIRED, UNDER ERIE RAILROAD CO. V. TOMPKINS
...  TO FOLLOW THAT JUDGMENT IN SPITE OF THE FACT THAT THE UNITED
STATES IS NOT A PARTY TO THOSE PROCEEDINGS  ...  ."  127 F. SUPP., AT
444. 

BUT THE FACT THAT THE UNITED STATES IS NOT A PARTY TO THE STATE COURT
LITIGATION DOES NOT MEAN THAT THE FEDERAL COURT SHOULD INITIATE
INTERPRETATION OF A STATE STATUTE.  IN FACT, WHERE QUESTIONS OF
CONSTITUTIONALITY ARE INVOLVED - AND THE GOVERNMENT CONTENDS THAT AN
APPLICATION OF THE STATE STATUTE ADVERSE TO ITS INTERESTS WOULD BE
UNCONSTITUTIONAL - OUR RULE HAS BEEN PRECISELY THE OPPOSITE:  "AS
QUESTIONS OF FEDERAL CONSTITUTIONAL POWER HAVE BECOME MORE AND MORE
INTERTWINED WITH PRELIMINARY DOUBTS ABOUT LOCAL LAW, WE HAVE INSISTED
THAT FEDERAL COURTS DO NOT DECIDE QUESTIONS OF CONSTITUTIONALITY ON THE
BASIS OF PRELIMINARY GUESSES REGARDING LOCAL LAW."  SPECTOR MOTOR CO.
V. MCLAUGHLIN, 323 U.S. 101, 105; SEE STAINBACK V. MO HOCK KE LOK PO,
336 U.S. 368, 383; RAILROAD COMMISSION V. PULLMAN CO., 312 U.S. 496,
498-502. 

THE GOVERNMENT CONTENDS THAT ACT NO. 315 OF 1940 DOES NOT APPLY WHEN
THE PARTIES THEMSELVES HAVE CONTRACTED FOR A RESERVATION OF SPECIFIC
DURATION AND THAT IF THE STATUTE IS CONSTRUED TO APPLY TO THIS
SITUATION, IT WOULD IMPAIR THE OBLIGATION OF THE GOVERNMENT'S
CONTRACT.  PETITIONER DISAGREES.  THE SUPREME COURT OF LOUISIANA HAS
NEVER CONSIDERED THE SPECIFIC ISSUE OR EVEN DISCUSSED GENERALLY THE
RATIONALE OF THE STATUTE, ESPECIALLY WITH REFERENCE TO PROBLEMS OF
CONSTITUTIONALITY.  THE DISTRICT COURT RECOGNIZED THE IMPORTANCE OF THE
STATUTE IN DECIDING THIS CASE; IT ALSO RECOGNIZED THAT A PROBLEM OF
INTERPRETATION WAS INVOLVED, THAT THE STATUTE CANNOT BE READ BY HIM WHO
RUNS.  WHAT ARE THE SITUATIONS TO WHICH THE STATUTE IS APPLICABLE?  IS
THE STATUTE MERELY DECLARATORY OF PRIOR LOUISIANA LAW?  WHAT ARE THE
PROBLEMS THAT IT WAS DESIGNED TO MEET?  THE ANSWERS TO THESE QUESTIONS
ARE, OR MAY BE, RELEVANT.  BEFORE ATTEMPTING TO ANSWER THEM AND TO
DECIDE THEIR RELATION TO THE ISSUES IN THE CASE, WE THINK IT ADVISABLE
TO HAVE AN INTERPRETATION, IF POSSIBLE, OF THE STATE STATUTE BY THE
ONLY COURT THAT CAN INTERPRET THE STATUTE WITH FINALITY, THE LOUISIANA
SUPREME COURT.  THE LOUISIANA DECLARATORY JUDGMENT PROCEDURE APPEARS
AVAILABLE TO SECURE SUCH AN INTERPRETATION, LA. REV. STAT., 1950,
13:4231 ET SEQ., AND THE UNITED STATES OF COURSE MAY APPEAR TO URGE ITS
INTERPRETATION OF THE STATUTE.  SEE STANLEY V. SCHWALBY, 147 U.S. 508,
512-513.  IT NEED HARDLY BE ADDED THAT THE STATE COURTS IN SUCH A
PROCEEDING CAN DECIDE DEFINITIVELY ONLY QUESTIONS OF STATE LAW THAT ARE
NOT SUBJECT TO OVERRIDING FEDERAL LAW. 

WE THEREFORE MODIFY THE JUDGMENT OF THE COURT OF APPEALS TO PERMIT AN
INTERPRETATION OF THE STATE STATUTE TO BE SOUGHT WITH EVERY EXPEDITION
IN THE STATE COURT IN CONFORMITY WITH THIS OPINION.  MODIFIED AND
AFFIRMED. 

FN1  THE RESERVATION, IN ITS PERTINENT PORTION, PROVIDED:  "THE
VENDOR RESERVES FROM THIS SALE THE RIGHT TO MINE AND REMOVE, OR TO
GRANT TO OTHERS THE RIGHT TO MINE AND REMOVE, ALL OIL, GAS AND OTHER
VALUABLE MINERALS WHICH MAY BE DEPOSITED IN OR UNDER SAID LANDS, AND TO
REMOVE ANY OIL, GAS OR OTHER VALUABLE MINERALS FROM THE PREMISES; THE
RIGHT TO ENTER UPON SAID LANDS AT ANY TIME FOR THE PURPOSE OF MINING
AND REMOVING SAID OIL, GAS AND MINERALS, SAID RIGHT, SUBJECT TO THE
CONDITIONS HEREINAFTER SET FORTH, TO EXPIRE APRIL 1, 1945, IT BEING
UNDERSTOOD, HOWEVER, THAT THE VENDORS WILL PAY TO THE UNITED STATES OF
AMERICA, 5% OF THE GROSS PROCEEDS RECEIVED BY THEM AS ROYALTIES OR
OTHERWISE FROM ALL OIL OR MINERALS SO REMOVED FROM IN OR UNDER THE
AFOREDESCRIBED LANDS, UNTIL SUCH TIME AS THE VENDORS SHALL HAVE PAID TO
THE UNITED STATES OF AMERICA, THE SUM OF $25,000, BEING THE PURCHASE
PRICE PAID BY SAID UNITED STATES OF AMERICA FOR THE AFOREDESCRIBED
PROPERTIES. 

     *         *         *    *         * 

"PROVIDED THAT AT THE TERMINATION OF THE TEN (10) YEAR PERIOD OF
RESERVATION, IF NOT EXTENDED, OR AT THE TERMINATION OF ANY EXTENDED
PERIOD IN CASE THE OPERATION HAS NOT BEEN CARRIED ON FOR THE NUMBER OF
DAYS STATED, THE RIGHT TO MINE SHALL TERMINATE, AND COMPLETE FEE IN THE
LAND BECOME VESTED IN THE UNITED STATES. 

"THE RESERVATION OF THE OIL AND MINERAL RIGHTS HEREIN MADE FOR THE
ORIGINAL PERIOD OF TEN (10) YEARS AND FOR ANY EXTENDED PERIOD OR
PERIODS IN ACCORDANCE WITH THE ABOVE PROVISIONS SHALL NOT BE AFFECTED
BY ANY SUBSEQUENT CONVEYANCE OF ALL OR ANY OF THE AFOREMENTIONED
PROPERTIES BY THE UNITED STATES OF AMERICA, BUT SAID MINERAL RIGHTS
SHALL, SUBJECT TO THE CONDITIONS ABOVE  ...  SET FORTH, REMAIN VESTED
IN THE VENDORS." 

ACT NO. 315 PROVIDES:  "  ...  WHEN LAND IS ACQUIRED BY CONVENTIONAL
DEED OR CONTRACT, CONDEMNATION OR EXPROPRIATION PROCEEDINGS BY THE
UNITED STATES OF AMERICA, OR ANY OF ITS SUBDIVISIONS OR AGENCIES, FROM
ANY PERSON, FIRM OR CORPORATION, AND BY THE ACT OF ACQUISITION, VERDICT
OR JUDGMENT, OIL, GAS, AND/OR OTHER MINERALS OR ROYALTIES ARE RESERVED,
OR THE LAND SO ACQUIRED IS BY THE ACT OF ACQUISITION CONVEYED SUBJECT
TO A PRIOR SALE OR RESERVATION OF OIL, GAS AND/OR OTHER MINERALS OR
ROYALTIES, STILL IN FORCE AND EFFECT, SAID RIGHTS SO RESERVED OR
PREVIOUSLY SOLD SHALL BE IMPRESCRIPTIBLE."  SEE ALSO THE PRIOR ACT NO.
151 OF 1938 PROVIDING THAT PRESCRIPTION SHOULD NOT RUN AGAINST A
RESERVATION OF MINERAL RIGHTS IN REAL ESTATE ACQUIRED BY THE UNITED
STATES OR THE STATE OF LOUISIANA. 

FN2  THE BASIC PROVISIONS OF 28 U.S.C. SEC. 2283 GO BACK TO 1793, 1
STAT. 335. 

FN3  MOST OF THE LOWER FEDERAL COURTS THAT HAVE CONSIDERED THIS
PROBLEM HAVE, WITHOUT MUCH DISCUSSION, REACHED THE SAME RESULT.  E.G.,
UNITED STATES V. TAYLOR'S OAK RIDGE CORP., 89 F. SUPP. 28; UNITED
STATES V. CAIN, 72 F. SUPP. 897; UNITED STATES V. PHILLIPS, 33 F. SUPP.
261, REVERSED ON OTHER GROUNDS, 312 U.S. 246; UNITED STATES V.
MCINTOSH, 57 F.2D 573; UNITED STATES V. BABCOCK, 6 F.2D 160, REVERSED
FOR MODIFICATION, 9 F.2D 905; UNITED STATES V. INABA, 291 F. 416.  BUT
SEE UNITED STATES V. LAND TITLE BANK & TRUST CO., 90 F.2D 970; UNITED
STATES V. CERTAIN PARCELS OF LAND, 62 F. SUPP. 1017, APPEAL DISMISSED
BY STIPULATION, 151 F.2D 1022. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I AGREE THAT THE STATE ACTION WAS PROPERLY ENJOINED; AND SO I CONCUR
IN THE OPINION OF THE COURT TO THAT EXTENT.  BUT I DISSENT FROM THE
DIRECTION TO THE DISTRICT COURT TO HOLD THE CASE WHILE THE PARTIES
REPAIR TO THE STATE COURT TO GET AN INTERPRETATION OF THE LOUISIANA
STATUTE AROUND WHICH THIS LITIGATION TURNS. 

THAT PROCEDURE IS AN ADVISABLE ONE WHERE PRIVATE PARTIES QUESTION THE
CONSTITUTIONALITY OF A STATE STATUTE.  AN AUTHORITATIVE CONSTRUCTION OF
THE STATE LAW MAY AVOID THE CONSTITUTIONAL ISSUE OR PUT IT IN NEW
PERSPECTIVE.  SEE SPECTOR MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101, 104
105.  IN THE SPECTOR CASE, THE PLAINTIFF'S CLAIM WAS WITHIN THE
JURISDICTION OF THE FEDERAL COURT SOLELY BECAUSE OF THE ATTACK ON THE
CONSTITUTIONALITY OF A STATE STATUTE.  UNDER 28 U.S.C. SEC. 1331, THE
FEDERAL DISTRICT COURT HAS JURISDICTION WHERE THE MATTER IN CONTROVERSY
EXCEEDS THE JURISDICTIONAL AMOUNT "AND ARISES UNDER THE CONSTITUTION,
LAWS OR TREATIES OF THE UNITED STATES."  IN LITIGATION IN THE FEDERAL
COURTS UNDER THAT STATUTE, THE NECESSITY OF CONSTRUING STATE LAW ARISES
BECAUSE OF THE FEDERAL COURT'S DUTY TO AVOID IF POSSIBLE A FEDERAL
CONSTITUTIONAL QUESTION.  SILER V. LOUISVILLE & NASHVILLE R. CO., 213
U.S. 175.  IN THE SPECTOR CASE, THEN, MATTERS OF STATE LAW WERE ONLY
ANCILLARY TO THE PRIMARY RESPONSIBILITY OF THE FEDERAL COURT TO RESOLVE
THE CONSTITUTIONAL ISSUES. 

BUT HERE, ALTHOUGH POTENTIAL CONSTITUTIONAL QUESTIONS MAY LURK IN THE
BACKGROUND, THIS LITIGATION PRIMARILY CONCERNS NOT FEDERAL QUESTIONS
BUT TITLE TO LAND CLAIMED BY THE UNITED STATES.  IT IS LITIGATION WHICH
CONGRESS BY 28 U.S.C. SECS. 1345, 1346, HAS ENTRUSTED TO THE FEDERAL
DISTRICT COURT.  THOSE SECTIONS ALLOW CIVIL LITIGATION OF THE UNITED
STATES - WHETHER IT INVOLVES FEDERAL OR STATE LAW QUESTIONS - TO BE
CONDUCTED IN THE FEDERAL COURTS.  IN THAT SITUATION IT IS THE DUTY OF
THE FEDERAL COURT TO DECIDE ALL ISSUES IN THE CASE - THOSE TURNING ON
STATE LAW AS WELL AS THOSE TURNING ON FEDERAL LAW.  IN MEREDITH V.
WINTER HAVEN, 320 U.S. 228, A CASE IN THE FEDERAL COURTS BY REASON OF
DIVERSITY OF CITIZENSHIP, WE REFUSED TO REMIT THE PARTIES TO THE STATE
COURT FOR DECISION OF DIFFICULT STATE LAW QUESTIONS.  WE HELD THAT IT
WAS THE DUTY OF THE FEDERAL COURT TO DECIDE ALL ISSUES IN THE CASE -
STATE OR FEDERAL, DIFFICULT OR EASY.  AND SEE PROPPER V. CLARK, 337
U.S. 472.  THERE HAVE BEEN EXCEPTIONS TO THIS POLICY, NOTABLY IN
BANKRUPTCY PROCEEDINGS WHERE TRUSTEES ARE SOMETIMES SENT INTO STATE
COURTS TO OBTAIN ADJUDICATIONS ON LOCAL LAW QUESTIONS PERTINENT TO THE
ADMINISTRATION OF THE BANKRUPT'S ESTATE.  SEE THOMPSON V. MAGNOLIA CO.,
309 U.S. 478.  IT IS PECULIARLY INAPPROPRIATE TO FOLLOW THAT COURSE
HERE.  CONGRESS HAS DECIDED THAT THE UNITED STATES SHOULD HAVE THE
BENEFIT OF THE PROTECTION OF ITS OWN COURTS IN THIS TYPE OF
LITIGATION.  WE PROPERLY HOLD THAT THE DISTRICT COURT, NOT THE STATE
COURT, HAS JURISDICTION OF THE CONTROVERSY.  BUT WE BEAT THE DEVIL
AROUND THE BUSH WHEN, HAVING TAKEN THE LITIGATION OUT OF THE STATE
COURT, WE SEND THE PARTIES BACK TO THE STATE COURT FOR ITS CONSTRUCTION
OF LOUISIANA LAW WHICH IS THE MOST SIGNIFICANT ISSUE IN THE CASE.  THE
PROBLEM IS NOT ONLY TO CONSTRUE THE STATE STATUTE BUT TO CONSTRUE IT
CONSTITUTIONALLY.  THE FEDERAL COURT CAN MAKE THAT CONSTRUCTION AS
READILY AS THE STATE COURT.  THAT IS THE CONGRESSIONAL SCHEME AND WE
SHOULD NOT CHANGE IT BY JUDICIAL FIAT. 
..END :

















DELLI PAOLI V. UNITED STATES 352 U.S. 232 


NO. 33.  ARGUED OCTOBER 18, 1956 - DECIDED JANUARY 14, 1957 - 229 F.2D
319, AFFIRMED. 


PETITIONER IS ONE OF FIVE CO-DEFENDANTS CONVICTED IN A JOINT TRIAL IN
A FEDERAL COURT ON A FEDERAL CHARGE OF CONSPIRING TO DEAL UNLAWFULLY IN
ALCOHOL.  WITHOUT DELETING REFERENCES TO PETITIONER, THE COURT ADMITTED
IN EVIDENCE A CONFESSION OF ANOTHER CO-DEFENDANT, MADE AFTER
TERMINATION OF THE CONSPIRACY; BUT THE COURT STATED CLEARLY AT THE
TIME, ON SEVERAL OTHER OCCASIONS, AND IN ITS CHARGE TO THE JURY, THAT
THE CONFESSION WAS TO BE CONSIDERED ONLY IN DETERMINING THE GUILT OF
THE CONFESSOR AND NOT THAT OF ANY OF THE OTHER DEFENDANTS.  THE
CONSPIRACY WAS SIMPLE; THE SEPARATE INTERESTS OF EACH DEFENDANT WERE
EMPHASIZED THROUGHOUT THE TRIAL; ADMISSION OF THE CONFESSION WAS
POSTPONED TO THE END OF THE GOVERNMENT'S CASE; IN THE MAIN, THE
CONFESSION MERELY CORROBORATED WHAT THE GOVERNMENT HAD ALREADY
ESTABLISHED; ITS REFERENCES TO PETITIONER WERE LARGELY CUMULATIVE; AND
THERE WAS NOTHING IN THE RECORD INDICATING THAT THE JURY WAS CONFUSED
OR FAILED TO FOLLOW THE COURT'S INSTRUCTIONS.  HELD: PETITIONER'S
CONVICTION IS SUSTAINED.  PP. 223-243. 

1.  THE EVIDENCE ADMITTED AGAINST PETITITIONER WAS SUFFICIENT TO
SUSTAIN HIS CONVICTION.  PP. 234-236. 

2.  UNDER THE CIRCUMSTANCES OF THIS CASE, THE COURT'S INSTRUCTIONS TO
THE JURY PROVIDED PETITIONER WITH SUFFICIENT PROTECTION, SO THAT THE
ADMISSION OF HIS CO-DEFENDANT'S CONFESSION, STRICTLY LIMITED TO USE
AGAINST THE CONFESSOR, DID NOT CONSTITUTE REVERSIBLE ERROR AGAINST
PETITIONER.  KRULEWITCH V. UNITED STATES, 336 U.S. 440, DISTINGUISHED. 
PP. 236-243. 

(A)  THE COURT'S INSTRUCTIONS TO THE JURY WERE SUFFICIENTLY CLEAR. 
PP. 239-241. 

(B)  ON THE RECORD IN THIS CASE, IT IS FAIR TO ASSUME THAT THE JURY
FOLLOWED THE COURT'S INSTRUCTIONS.  PP. 241-242. 

DELLI PAOLI V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

A JOINT TRIAL IN THIS CASE RESULTED IN THE CONVICTION OF FIVE CO
DEFENDANTS ON A FEDERAL CHARGE OF CONSPIRING TO DEAL UNLAWFULLY IN
ALCOHOL.  ONLY THE PETITIONER, ORLANDO DELLI PAOLI, APPEALED.  THE
PRINCIPAL ISSUE IS WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR,
AS AGAINST PETITIONER, BY ADMITTING IN EVIDENCE A CONFESSION OF A CO
DEFENDANT, MADE AFTER THE TERMINATION OF THE ALLEGED CONSPIRACY.  THE
TRIAL COURT DECLINED TO DELETE REFERENCES TO PETITIONER FROM THE
CONFESSION BUT STATED CLEARLY THAT THE CONFESSION WAS TO BE CONSIDERED
ONLY IN DETERMINING THE GUILT OF THE CONFESSOR AND NOT THAT OF OTHER
DEFENDANTS.  FOR THE REASONS HEREAFTER STATED, WE AGREE THAT, UNDER THE
CIRCUMSTANCES OF THIS CASE, SUCH A RESTRICTED ADMISSION OF THE
CONFESSION DID NOT CONSTITUTE REVERSIBLE ERROR. 

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, THE JURY CONVICTED PETITIONER AND FOUR CO-DEFENDANTS, MARGIASSO,
PIERRO, WHITLEY AND KING, OF CONSPIRING TO POSSESS AND TRANSPORT
ALCOHOL IN UNSTAMPED CONTAINERS AND TO EVADE PAYMENT OF FEDERAL TAXES
ON THE ALCOHOL.  (FN1)  THE GOVERNMENT'S WITNESSES TESTIFIED THAT THEY
HAD OBSERVED ACTIONS OF THE DEFENDANTS WHICH DISCLOSED THE PROCEDURE
THROUGH WHICH MARGIASSO, PIERRO AND PETITIONER SUPPLIED UNSTAMPED
ALCOHOL TO THEIR CUSTOMERS, SUCH AS KING AND WHITLEY.  THE GOVERNMENT
ALSO OFFERED, FOR USE AGAINST WHITLEY ALONE, HIS WRITTEN CONFESSION
MADE IN THE PRESENCE OF A GOVERNMENT AGENT AND OF HIS OWN COUNSEL AFTER
THE TERMINATION OF THE CONSPIRACY.  (FN2)  THE COURT POSTPONED THE
INTRODUCTION OF WHITLEY'S CONFESSION UNTIL THE CLOSE OF THE
GOVERNMENT'S CASE.  AT THAT TIME, THE COURT ADMITTED IT WITH AN
EMPHATIC WARNING THAT IT WAS TO BE CONSIDERED SOLELY IN DETERMINING THE
GUILT OF WHITLEY AND NOT IN DETERMINING THE GUILT OF ANY OTHER
DEFENDANT.  THE COURT REPEATED THIS ADMONITION IN ITS CHARGE TO THE
JURY. 

THE COURT OF APPEALS AFFIRMED PETITIONER'S CONVICTION, WITH ONE JUDGE
DISSENTING.  229 F.2D 319.  WE GRANTED CERTIORARI ESPECIALLY TO
CONSIDER THE ADMISSIBILITY OF WHITLEY'S POST-CONSPIRACY CONFESSION. 
350 U.S. 992. 

                                        I. 

PETITIONER FIRST ATTACKS THE SUFFICIENCY OF THE EVIDENCE CONNECTING
HIM WITH THE CONSPIRACY.  THE GOVERNMENT'S EVIDENCE, EXCLUSIVE OF
WHITLEY'S CONFESSION, SHOWED THAT THE DEFENDANTS' CONSPIRACY TO DEAL IN
UNSTAMPED ALCOHOL CENTERED AROUND A GARAGE USED FOR STORAGE PURPOSES IN
A RESIDENTIAL DISTRICT OF THE BRONX IN NEW YORK CITY AND A GASOLINE
SERVICE STATION, ALSO IN THE BRONX.  THE SERVICE STATION WAS USED BY
MARGIASSO, PIERRO AND PETITIONER AS A PLACE TO MEET CUSTOMERS AND
TRANSFER ALCOHOL. 

IN DECEMBER 1949, PETITIONER, USING THE ALIAS OF "BOBBIE LONDON," WAS
ASSOCIATED WITH MARGIASSO AND PIERRO IN INSPECTING THE GARAGE AND IN
NEGOTIATING FOR ITS PURCHASE.  FOR $2,000 IN CASH, TITLE TO THE GARAGE
AND AN ADJACENT COTTAGE WAS TAKEN IN THE NAME OF PIERRO'S SISTER.  IN
1950, THE GARAGE WAS REPAIRED, ITS WINDOWS BOARDED UP AND ITS DOORS
STRENGTHENED AND PADLOCKED.  PETITIONER LIVED NOT FAR AWAY, IN THE
BRONX, AND WAS OBSERVED, FROM TIME TO TIME, AT THE GARAGE OR USING A
PANEL TRUCK WHICH WAS REGISTERED UNDER A FALSE NAME.  DURING THE
DAYTIME, THIS TRUCK GENERALLY WAS PARKED NEAR PETITIONER'S HOME OR THE
GARAGE BUT NEIGHBORS TESTIFIED THAT IT WAS IN USE LATE AT NIGHT.  IN IT
PETITIONER TRANSPORTED VARIOUS ARTICLES TO THE GARAGE OR ELSEWHERE.  ON
ONE OCCASION, PETITIONER, WITH MARGIASSO, LOADED IT WITH BUNDLES OF
CARTONS SUITED TO THE PACKING OF 5-GALLON CANS.  LATE IN 1951,
PETITIONER USED AN ADDITIONAL TRUCK, ALSO REGISTERED UNDER A FALSE
NAME.  IN ADDITION, HE FREQUENTLY DROVE TO THE SERVICE STATION IN A
CADILLAC CAR.  ON DECEMBER 18, 1951, HE USED THIS CAR IN MAKING
DELIVERY OF A LARGE PACKAGE TO A NEAR-BY BAR. 

DURING DECEMBER 1951, THE SERVICE STATION OFTEN WAS USED AS A MEETING
PLACE FOR MARGIASSO, PIERRO AND PETITIONER.  MARGIASSO AND PETITIONER
WERE THERE ON THE EVENING OF DECEMBER 28.  (FN3)  AT ABOUT 7 AND 10
P.M., RESPECTIVELY, KING AND WHITLEY ARRIVED.  EACH TURNED OVER HIS CAR
TO MARGIASSO.  MARGIASSO DROVE KING'S CAR TO THE GARAGE AND RETURNED
WITH IT HEAVILY LOADED.  KING THEN DROVE IT AWAY.  GOVERNMENT AGENTS
FOLLOWED HIM UNTIL HE STOPPED IN HARLEM.  THERE THEY ARRESTED HIM AND
TOOK POSSESSION OF 19 5-GALLON CANS OF UNSTAMPED ALCOHOL FOUND IN HIS
CAR.  LATER IN THE EVENING, MARGIASSO TOOK WHITLEY'S CAR TO THE GARAGE
AND WAS ARRESTED IN IT WHEN LEAVING THE STILL OPEN GARAGE.  THE AGENTS
THEREUPON SEIZED 113 5-GALLON CANS OF UNSTAMPED ALCOHOL THEY FOUND IN
THE GARAGE.  WHITLEY, WHO HAD BEEN WAITING FOR MARGIASSO AT THE SERVICE
STATION WITH $1,000 IN A PAPER BAG, WAS ARRESTED ON THE AGENTS' RETURN
WITH MARGIASSO. 

PETITIONER'S PRESENCE AT THE SERVICE STATION ON THE EVENING OF
DECEMBER 28 WAS CLOSELY RELATED TO THESE EVENTS.  HE WAITED THERE WITH
KING FOR MARGIASSO TO RETURN WITH KING'S CAR CONTAINING THE 19 CANS OF
ALCOHOL.  HE WAS THERE AGAIN WITH MARGIASSO AT ABOUT 10 P.M.  BUT LEFT
SHORTLY BEFORE WHITLEY CAME.  HE RETURNED WHILE MARGIASSO, WHITLEY AND
THE AGENTS WERE THERE AND WAS ARRESTED WHILE ATTEMPTING TO DRIVE AWAY. 

PETITIONER CONTENDS THAT THE ABOVE EVIDENCE SHOWS MERELY THAT HE WAS
A FRIEND AND ASSOCIATE OF PIERRO AND MARGIASSO.  WE CONCLUDED, HOWEVER,
FROM THE RECORD AS A WHOLE, THAT THE JURY COULD FIND, BEYOND A
REASONABLE DOUBT, THAT PETITIONER WAS ASSOCIATED WITH PIERRO AND
MARGIASSO IN THE PURCHASE OF THE GARAGE AND THE USE OF THE PANEL TRUCK,
THAT HE KNEW THAT UNSTAMPED ALCOHOL WAS STORED IN THE GARAGE, THAT HE
HAD ACCESS TO IT AND THAT HE WAS AN ACTIVE PARTICIPANT IN THE TRANSFERS
OF ALCOHOL TO WHITLEY AND KING.  ACCORDINGLY, WE AGREE WITH CIRCUIT
JUDGE LEARNED HAND'S STATEMENT MADE FOR THE COURT BELOW, FOLLOWING HIS
OWN SUMMARY OF THE EVIDENCE OF PETITIONER'S PARTICIPATION IN THE
CONSPIRACY: 

"NOT ONLY WAS ALL THIS ENOUGH TO CONNECT HIM WITH THE BUSINESS, BUT
THE JURORS COULD HARDLY HAVE FAILED TO FIND THAT HE WAS IN THE
ENTERPRISE.  THE WHOLE BUSINESS WAS ILLEGAL AND CARRIED ON
SURREPTITIOUSLY; AND THE POSSIBILITY THAT UNLESS HE WERE A PARTY TO THE
VENTURE, PIERRO AND MARGIASSO WOULD HAVE ASSOCIATED (WITH) HIM TO THE
EXTENT WE HAVE MENTIONED IS TOO REMOTE FOR SERIOUS DISCUSSION."  229
F.2D, AT 320.  (FN4)

               II. 

IN CONSIDERING THE ADMISSIBILITY OF THE WHITLEY CONFESSION, WE START
WITH THE PREMISE THAT THE OTHER EVIDENCE AGAINST PETITIONER WAS
SUFFICIENT TO SUSTAIN HIS CONVICTION.  IF WHITLEY'S CONFESSION HAD
INCLUDED NO REFERENCE TO PETITIONER'S PARTICIPATION IN THE CONSPIRACY,
ITS ADMISSION WOULD NOT HAVE BEEN OPEN TO PETITIONER'S OBJECTION. 
SIMILARLY, IF THE TRIAL COURT HAD DELETED FROM THE CONFESSION ALL
REFERENCES TO PETITIONER'S CONNECTION WITH THE CONSPIRACY, THE
ADMISSION OF THE REMAINDER WOULD NOT HAVE BEEN OBJECTIONABLE.  THE
IMPRACTICALITY OF SUCH DELETION WAS, HOWEVER, AGREED TO BY BOTH THE
TRIAL COURT AND THE ENTIRE COURT BELOW AND CANNOT WELL BE
CONTROVERTED. 

THIS COURT LONG HAS HELD THAT A DECLARATION MADE BY ONE CONSPIRATOR,
IN FURTHERANCE OF A CONSPIRACY AND PRIOR TO ITS TERMINATION, MAY BE
USED AGAINST THE OTHER CONSPIRATORS.  HOWEVER, WHEN SUCH A DECLARATION
IS MADE BY A CONSPIRATOR AFTER THE TERMINATION OF THE CONSPIRACY, IT
MAY BE USED ONLY AGAINST THE DECLARANT AND UNDER APPROPRIATE
INSTRUCTIONS TO THE JURY. 

"  ...  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. 
SEE UNITED STATES V. GOODING, 12 WHEAT.  460, 468-470.  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; LOGAN V. UNITED STATES, 144 U.S. 263, 308-309.  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 (336 U.S. 440), AND FISWICK V. UNITED STATES,
SUPRA. THOSE CASES DEALT ONLY WITH DECLARATIONS OF ONE CONSPIRATOR
AFTER THE CONSPIRACY HAS ENDED  ...  . 

"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 DEFENDANT  ...  . 

"  ...  THESE DECLARATIONS (I.E., THOSE ADMISSIBLE ONLY AS TO THE
DECLARANT) 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, AT 453 (CONCURRING OPINION); BLUMENTHAL V.
UNITED STATES, 332 U.S. 539, 559-560; NASH V. UNITED STATES, 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, 165 F.2D 360, 367."  LUTWAK V. UNITED STATES, 344 U.S. 604,
617-618, 619.  SEE ALSO, OPPER V. UNITED STATES, 348 U.S. 84, 95. 

PETITIONER CONTENDS THAT KRULEWITCH V. UNITED STATES, 336 U.S. 440,
REQUIRES THE EXCLUSION OF A POST-CONSPIRACY CONFESSION OF A CO
CONSPIRATOR.  THAT CASE DEALT WITH THE SCOPE OF THE CO-CONSPIRATORS'
EXCEPTION TO THE HEARSAY RULE.  THIS COURT HELD THAT THE UTTERANCE OF A
CO-CONSPIRATOR MADE AFTER THE TERMINATION OF THE CONSPIRACY WAS
INADMISSIBLE AGAINST OTHER CO-CONSPIRATORS.  UNLIKE THE INSTANT CASE,
THE DECLARANT WAS NOT ON TRIAL AND THE QUESTION WHETHER HIS UTTERANCE,
IMPLICATING OTHER ALLEGED CONSPIRATORS, COULD BE ADMITTED IN A JOINT
TRIAL SOLELY AGAINST THE DECLARANT, UNDER PROPER LIMITING INSTRUCTIONS,
WAS NEITHER PRESENTED NOR DECIDED. 

THE ISSUE HERE IS WHETHER, UNDER ALL THE CIRCUMSTANCES, THE COURT'S
INSTRUCTIONS TO THE JURY PROVIDED PETITIONER WITH SUFFICIENT PROTECTION
SO THAT THE ADMISSION OF WHITLEY'S CONFESSION, STRICTLY LIMITED TO USE
AGAINST WHITLEY, CONSTITUTED REVERSIBLE ERROR.  THE DETERMINATION OF
THIS ISSUE TURNS ON WHETHER THE INSTRUCTIONS WERE SUFFICIENTLY CLEAR
AND WHETHER IT WAS REASONABLY POSSIBLE FOR THE JURY TO FOLLOW THEM. 
(FN5) 

WHEN THE CONFESSION WAS ADMITTED IN EVIDENCE, THE TRIAL COURT SAID: 

"THE PROOF OF THE GOVERNMENT HAS NOW BEEN COMPLETED EXCEPT FOR THE
TESTIMONY OF THE WITNESS GREENBERG AS TO THE ALLEGED STATEMENT OR
AFFIDAVIT OF THE DEFENDANT WHITLEY.  THIS AFFIDAVIT OR ADMISSION WILL
BE CONSIDERED BY YOU SOLELY IN CONNECTION WITH YOUR DETERMINATION OF
THE GUILT OR INNOCENCE OF THE DEFENDANT WHITLEY.  IT IS NOT TO BE
CONSIDERED AS PROOF IN CONNECTION WITH THE GUILT OR INNOCENCE OF ANY OF
THE OTHER DEFENDANTS. 

"THE REASON FOR THIS DISTINCTION IS THIS:  AN ADMISSION BY DEFENDANT
AFTER HIS ARREST OF PARTICIPATION IN ALLEGED CRIME MAY BE CONSIDERED AS
EVIDENCE BY THE JURY AGAINST HIM, TOGETHER WITH OTHER EVIDENCE, BECAUSE
IT IS, AS THE LAW DESCRIBES IT, AN ADMISSION AGAINST INTEREST WHICH A
PERSON ORDINARILY WOULD NOT MAKE.  HOWEVER, IF SUCH DEFENDANT AFTER HIS
ARREST IMPLICATES OTHER DEFENDANTS IN SUCH AN ADMISSION IT IS NOT
EVIDENCE AGAINST THOSE DEFENDANTS BECAUSE AS TO THEM IT IS NOTHING MORE
THAN HEARSAY EVIDENCE." 

THE SUBSTANCE OF THIS ADMONITION WAS REPEATED SEVERAL TIMES DURING
THE CROSS-EXAMINATION OF ONE OF THE GOVERNMENT AGENTS BEFORE WHOM THE
CONFESSION WAS MADE AND A FINAL WARNING TO THE SAME EFFECT WAS INCLUDED
IN THE COURT'S CHARGE TO THE JURY.  (FN6)  NOTHING COULD HAVE BEEN MORE
CLEAR THAN THESE LIMITING INSTRUCTIONS.  PETITIONER, WHO MADE NO
OBJECTION TO THESE INSTRUCTIONS AT THE TRIAL, CONCEDES THEIR CLARITY. 

WE MAY ALSO FAIRLY PROCEED ON THE BASIS THAT THE JURY FOLLOWED THESE
INSTRUCTIONS.  SEVERAL FACTORS FAVOR THIS CONCLUSION:  (1) THE
CONSPIRACY WAS SO SIMPLE IN ITS CHARACTER THAT THE PART OF EACH
DEFENDANT IN IT WAS EASILY UNDERSTOOD.  THERE WAS NO MASS TRIAL AND NO
MULTIPLICITY OF EVIDENTIARY RESTRICTIONS.  (2) THE SEPARATE INTERESTS
OF EACH DEFENDANT WERE EMPHASIZED THROUGHOUT THE TRIAL.  MARGIASSO AND
PETITIONER WERE REPRESENTED BY ONE ATTORNEY.  EACH OF THE OTHER
DEFENDANTS WAS REPRESENTED BY A SEPARATE ATTORNEY.  THROUGHOUT THE
TRIAL, THE SEPARATE INTERESTS OF EACH DEFENDANT WERE REPEATEDLY
EMPHASIZED BY HIS ATTORNEY AND RECOGNIZED BY THE COURT.  (FN7)  A
SEPARATE TRIAL NEVER WAS REQUESTED ON BEHALF OF ANY DEFENDANT.  (3)
THE TRIAL COURT POSTPONED THE INTRODUCTION OF WHITLEY'S CONFESSION
UNTIL THE REST OF THE GOVERNMENT'S CASE WAS IN, THUS MAKING IT EASIER
FOR THE JURY TO CONSIDER THE CONFESSION SEPARATELY FROM THE OTHER
TESTIMONY.  THIS SEPARATION WAS POINTED OUT BY THE TRIAL COURT. 
NEITHER SIDE THEREAFTER INTRODUCED ANY EVIDENCE.  (4) IN THE MAIN,
WHITLEY'S CONFESSION MERELY CORROBORATED WHAT THE GOVERNMENT ALREADY
HAD ESTABLISHED.  IN THE LIGHT OF THE GOVERNMENT'S UNCONTRADICTED
TESTIMONY IMPLICATING PETITIONER IN THE CONSPIRACY, THE REFERENCES TO
PETITIONER IN THE CONFESSION WERE LARGELY CUMULATIVE.  (5) THERE IS
NOTHING IN THE RECORD INDICATING THAT THE JURY WAS CONFUSED OR THAT IT
FAILED TO FOLLOW THE COURT'S INSTRUCTIONS. 

IT IS A BASIC PREMISE OF OUR JURY SYSTEM THAT THE COURT STATES THE
LAW TO THE JURY AND THAT THE JURY APPLIES THAT LAW TO THE FACTS AS THE
JURY FINDS THEM.  UNLESS WE PROCEED ON THE BASIS THAT THE JURY WILL
FOLLOW THE COURT'S INSTRUCTIONS WHERE THOSE INSTRUCTIONS ARE CLEAR AND
THE CIRCUMSTANCES ARE SUCH THAT THE JURY CAN REASONABLY BE EXPECTED TO
FOLLOW THEM, THE JURY SYSTEM MAKES LITTLE SENSE.  BASED ON FAITH THAT
THE JURY WILL ENDEAVOR TO FOLLOW THE COURT'S INSTRUCTIONS, OUR SYSTEM
OF JURY TRIAL HAS PRODUCED ONE OF THE MOST VALUABLE AND PRACTICAL
MECHANISMS IN HUMAN EXPERIENCE FOR DISPENSING SUBSTANTIAL JUSTICE. 

"TO SAY THAT THE JURY MIGHT HAVE BEEN CONFUSED AMOUNTS TO NOTHING
MORE THAN AN UNFOUNDED SPECULATION THAT THE JURORS DISREGARDED CLEAR
INSTRUCTIONS OF THE COURT IN ARRIVING AT THEIR VERDICT.  OUR THEORY OF
TRIAL RELIES UPON THE ABILITY OF A JURY TO FOLLOW INSTRUCTIONS.  THERE
IS NOTHING IN THIS RECORD TO CALL FOR REVERSAL BECAUSE OF ANY CONFUSION
OR INJUSTICE ARISING FROM THE JOINT TRIAL.  THE RECORD CONTAINS
SUBSTANTIAL COMPETENT EVIDENCE UPON WHICH THE JURY COULD FIND
PETITIONER GUILTY."  OPPER V. UNITED STATES, 348 U.S. 84, 95.  SEE
ALSO, LUTWAK V. UNITED STATES, 344 U.S. 604, 615-620; BLUMENTHAL V.
UNITED STATES, 332 U.S. 539, 552-553. 

THERE MAY BE PRACTICAL LIMITATIONS TO THE CIRCUMSTANCES UNDER WHICH A
JURY SHOULD BE LEFT TO FOLLOW INSTRUCTIONS BUT THIS CASE DOES NOT
PRESENT THEM.  AS A PRACTICAL MATTER, THE CHOICE HERE WAS BETWEEN
SEPARATE TRIALS AND A JOINT TRIAL IN WHICH THE CONFESSION WOULD BE
ADMITTED UNDER APPROPRIATE INSTRUCTIONS.  SUCH A CHOICE TURNS ON THE
CIRCUMSTANCES OF THE PARTICULAR CASE AND LIES LARGELY WITHIN THE
DISCRETION OF THE TRIAL JUDGE.  ACCORDINGLY, WE CONCLUDE THAT LEAVING
PETITIONER'S CASE TO THE JURY UNDER THE INSTRUCTIONS HERE GIVEN WAS NOT
REVERSIBLE ERROR AND THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  IN VIOLATION OF 18 U.S.C. SEC. 371, AND I.R.C., 1939, SECS.
2803(A), 2806(E), AND 2913.  MARGIASSO AND KING WERE ALSO INDICTED AND
CONVICTED FOR THE SUBSTANTIVE CRIME OF POSSESSION OF 19 5-GALLON CANS
OF UNSTAMPED ALCOHOL, AND MARGIASSO OF ANOTHER 113 OF SUCH CANS. 

FN2  THE CONFESSION APPEARS AS AN APPENDIX TO THE DISSENTING OPINION
BELOW IN 229 F.2D, AT 324-326.  IT IS ALSO PRINTED AS AN APPENDIX TO
THIS OPINION, POST, P. 243. 

FN3  ON THAT OCCASION, THE PROCEDURE FOLLOWED CLOSELY THE PATTERN
OBSERVED BY GOVERNMENT AGENTS ON DECEMBER 18 WHEN, AT 9 P.M., MARGIASSO
AND PETITIONER HAD BEEN AT THE SERVICE STATION.  A PONTIAC CAR, WITH
TWO OCCUPANTS, DROVE UP.  THE OCCUPANTS GOT OUT.  MARGIASSO DROVE AWAY
IN THEIR CAR AND, HALF AN HOUR LATER, RETURNED WITH IT HEAVILY LOADED. 
WHEN THE TWO MEN DROVE IT AWAY, GOVERNMENT AGENTS TRIED TO FOLLOW IT.
HOWEVER, THEY LOST IT IN TRAFFIC AND NO ARRESTS WERE MADE.  THE AGENTS
NOTED THE CAR'S LICENSE NUMBER, FOUND IT REGISTERED UNDER A FALSE NAME,
AND, ON DECEMBER 28, RECOGNIZED IT AS THE ONE IN WHICH WHITLEY THEN
CAME TO THE SERVICE STATION. 

FN4  PARTICIPATION IN A CRIMINAL CONSPIRACY MAY BE SHOWN BY
CIRCUMSTANTIAL AS WELL AS DIRECT EVIDENCE.  SEE, E.G., BLUMENTHAL V.
UNITED STATES, 332 U.S. 539, 557; GLASSER V. UNITED STATES, 315 U.S.
60, 80; DIRECT SALES CO. V. UNITED STATES, 319 U.S. 703; UNITED STATES
V. MANTON, 107 F.2D 834, 839. 

FN5  FOR LONG-STANDING RECOGNITION THAT POSSIBLE PREJUDICE AGAINST
OTHER DEFENDANTS MAY BE OVERCOME BY CLEAR INSTRUCTIONS LIMITING THE
JURY'S CONSIDERATION OF A POST-CONSPIRACY DECLARATION SOLELY TO THE
DETERMINATION OF THE GUILT OF THE DECLARANT, SEE ALSO, CWACH V. UNITED
STATES, 212 F.2D 520, 526-527; UNITED STATES V. SIMONE, 205 F.2D 480,
483-484; METCALF V. UNITED STATES, 195 F.2D 213, 217; UNITED STATES V.
LEVITON, 193 F.2D 848, 855-856; UNITED STATES V. GOTTFRIED, 165 F.2D
360, 367; UNITED STATES V. PUGLIESE, 153 F.2D 497, 500-501; JOHNSON V.
UNITED STATES, 82 F.2D 500; NASH V. UNITED STATES, 54 F.2D 1006, 1007;
WALDECK V. UNITED STATES, 2 F.2D 243, 245. 

FN6  "BEFORE YOU MAKE THOSE MOTIONS - I WILL AGAIN ADVISE THE JURY
THAT ANY ADMISSIONS BY THE DEFENDANT WHITLEY AFTER THE DATE OF HIS
ARREST CAN BE CONSIDERED BY YOU IN CONNECTION WITH THE DETERMINATION OF
THE GUILT OR INNOCENCE OF THE DEFENDANT WHITLEY TOGETHER WITH THE OTHER
TESTIMONY.  BUT ANY ADMISSIONS BY THE DEFENDANT WHITLEY ARE NOT TO BE
CONSIDERED AS PROOF IN CONNECTION WITH THE GUILT OR INNOCENCE OF ANY OF
THE OTHER DEFENDANTS.  THE REASON FOR THAT I EXPLAINED BEFORE YOU, THAT
THE ADMISSION BY A DEFENDANT AFTER HIS ARREST OF PARTICIPATION IN AN
ALLEGED CRIME MAY BE CONSIDERED AS EVIDENCE BY THE JURY AGAINST HIM
WITH THE OTHER EVIDENCE BECAUSE IT IS, AS THE LAW DESCRIBES IT, AN
ADMISSION AGAINST INTEREST WHICH A PERSON ORDINARILY WOULD NOT MAKE. 
HOWEVER, IF SUCH A PERSON AFTER HIS ARREST IMPLICATES OTHER DEFENDANTS
IN SUCH ADMISSION IT IS NOT EVIDENCE AGAINST THEM, BECAUSE AS TO THOSE
DEFENDANTS IT IS NOTHING MORE THAN HEARSAY EVIDENCE.  I ADVISE YOU OF
THAT IN CONNECTION WITH THE TESTIMONY OF THE LAST WITNESS (GREENBERG)
AS TO ANY ORAL STATEMENTS MADE BY WHITLEY OR ANY WRITTEN STATEMENTS
MADE BY WHITLEY." 

FN7  SAFEGUARDING THE SEPARATE INTERESTS OF THE DEFENDANTS, THE COURT
ALSO SAID: 

"THE EXISTENCE OF THE CONSPIRACY AND EACH DEFENDANT'S CONNECTION WITH
IT MUST BE ESTABLISHED BY INDIVIDUAL PROOF BASED UPON REASONABLE
INFERENCE TO BE DRAWN FROM SUCH DEFENDANT'S OWN ACTIONS, HIS OWN
CONDUCT, HIS OWN DECLARATIONS, AND HIS OWN CONNECTION WITH THE ACTIONS
AND CONDUCT OF THE OTHER ALLEGED CO-CONSPIRATORS. 

     *         *         *         *   * 

"TO FIND ANY DEFENDANT GUILTY OF CONSPIRACY YOU MUST FIND THAT HE
ACTIVELY PARTICIPATED THEREIN.  MERE KNOWLEDGE OF AN ILLEGAL ACT ON THE
PART OF ANY CO-CONSPIRATOR IS INSUFFICIENT.  MERE ASSOCIATION OF ONE
DEFENDANT WITH ANOTHER DOES NOT ESTABLISH THE EXISTENCE OF A
CONSPIRACY. 

     *         *     *         *         * 

"  ...  IF YOU FIND THAT EVERY CIRCUMSTANCE RELIED UPON AS
INCRIMINATING IS SUSCEPTIBLE OF TWO INTERPRETATIONS, EACH OF WHICH
APPEARS TO BE REASONABLE, AND ONE OF WHICH POINTS TO A DEFENDANT'S
GUILT, THE OTHER TO HIS INNOCENCE, IT IS YOUR DUTY TO ACCEPT THAT OF
INNOCENCE AND REJECT THAT WHICH POINTS TO GUILT." 

FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P. 246. 

 APPENDIX TO OPINION OF THE COURT. 

"WHITLEY'S CONFESSION READS AS FOLLOWS: 

"UNITED STATES OF AMERICA, 

"SOUTHERN JUDICIAL DISTRICT OF NEW YORK, 

"SS.: 

"JAMES WHITLEY, BEING DULY SWORN, DEPOSES AND SAYS: 

"I RESIDE AT 65 WEST 133RD STREET, APARTMENT 4E, NEW YORK, N.Y.  I
MADE THIS STATEMENT IN THE PRESENCE OF MY ATTORNEY, MR. BERTRAM J.
ADAMS OF 299 BROADWAY, NEW YORK, N.Y., AFTER BEING FULLY ADVISED THAT
UNDER THE CONSTITUTION OF THE UNITED STATES I HAVE THE PRIVILEGE AND
RIGHT OF NOT SAYING ANYTHING AT ALL; THAT IF I ANSWER ANY QUESTION
ANYTHING I SAY COULD BE USED AGAINST ME IN ANY CRIMINAL PROCEEDING. 
BEING FULLY AWARE OF MY RIGHTS, I MAKE THIS STATEMENT OF MY OWN FREE
WILL TO SPECIAL INVESTIGATORS ALBERT MILLER AND WILLIAM GREENBERG IN
THE OFFICE OF THE ALCOHOL AND TOBACCO TAX DIVISION, 143 LIBERTY STREET,
NEW YORK, N.Y. 

"SOMETIME AROUND THANKSGIVING OF 1949, A FRIEND OF MINE INTRODUCED ME
TO A MAN KNOWN TO ME AS TONY.  THIS MAN ASKED ME IF I WANTED TO BUY
SOME ALCOHOL AND I TOLD HIM I DID.  THE MEETING OCCURRED ON 126TH
STREET IN HARLEM.  THE MAN THEN TOLD ME TO MEET HIM THE NEXT DAY AT A
CANDY STORE ON THE SOUTH SIDE OF 119TH STREET, JUST EAST OF FIRST
AVENUE.  WHEN I GOT THERE, TONY INTRODUCED ME TO A MAN WHOSE NAME I DO
NOT KNOW.  THIS MAN TOLD ME TO MEET HIM THAT NIGHT ON 100TH STREET AND
SECOND AVENUE.  I MET HIM THERE.  HE TOOK MY CAR AND DROVE AWAY.  A
LITTLE WHILE LATER HE CAME BACK AND TOLD ME THAT THE CAR WAS PARKED ON
103RD STREET AND SECOND AVENUE.  I HAD PURCHASED TWO 5-GALLON CANS OF
ALCOHOL ON THAT OCCASION AND PAID HIM JUST BEFORE HE DROVE AWAY IN MY
CAR.  THEREAFTER, I WOULD MEET THIS MAN AROUND THE CANDY STORE ABOUT
TWICE A WEEK AND THE SAME PROCEDURE WOULD BE FOLLOWED.  THIS CONTINUED
UNTIL ABOUT JUNE OR JULY OF 1950. 

"TONY WAS ABOUT 5 FEET 5 INCHES IN HEIGHT, ABOUT 55 YEARS OF AGE, HAD
A DARK COMPLEXION AND STOCKY BUILD AND, I BELIEVE, HAD BROWN EYES.  HE
WAS APPARENTLY OF ITALIAN EXTRACTION.  THE OTHER MAN WHO SOLD ME THE
ALCOHOL WAS APPARENTLY ALSO OF ITALIAN DESCENT, AND HE HAD A DARK
COMPLEXION.  HE SPOKE IN BROKEN ENGLISH.  HE HAD BLACK HAIR AND WAS
ABOUT 27 OR 28 YEARS OF AGE AND WAS ABOUT 5 FEET 9 INCHES IN HEIGHT. 
(SOMETIME IN 1950, INVESTIGATOR WHITED OF THE ALCOHOL AND TOBACCO TAX
DIVISION ASKED ME ABOUT HIM AND SHOWED ME HIS PICTURE.) 

"AT ABOUT THAT TIME, THIS MAN SENT ME TO CARL.  HE INTRODUCED CARL TO
ME AND TOLD ME THAT CARL WOULD TAKE CARE OF ME FROM THEM ON.  I WOULD
MEET CARL ON SECOND AVENUE BETWEEN 121ST STREET AND 122ND STREET IN A
SEAFOOD RESTAURANT AND WOULD PURCHASE THE ALCOHOL FROM HIM. 

"CARL IS ABOUT 5 FEET 10 INCHES IN HEIGHT, HAS BLOND HAIR, BLUE EYES,
LIGHT COMPLEXION AND IS ABOUT 30 YEARS OF AGE.  HE IS APPARENTLY OF
ITALIAN DESCENT.  HE IS ABOUT 160 POUNDS.  CARL WOULD USUALLY COME TO
MY HOME TO SEE ME AND ASK ME IF I NEEDED ANYTHING. 

"JUST BEFORE CARL WENT TO JAIL IN 1950, HE INTRODUCED ME TO BOBBY.  I
HAVE BEEN SHOWN A PHOTOGRAPH BEARING ATU 3643 N.Y. DATED 12/29/51 OF
ORLANDI DELLI PAOLI, AND I IDENTIFY IT AS THAT OF THE MAN KNOWN TO ME
AS BOBBY.  THIS WAS SOMETIME IN THE SUMMER OF 1951.  BOBBY WOULD COME
TO MY HOUSE TO SEE ME.  IF I PLACED AN ORDER WITH HIM HE WOULD SET THE
DATE AND THE TIME FOR SEVEN OR EIGHT O'CLOCK IN THE EVENING WHEN I WAS
TO PICK UP THE ALCOHOL.  THE FIRST TIME I MET HIM AT 138TH STREET AND
BRUCKNER BOULEVARD, IN THE BRONX.  HE TOOK MY CAR AND WAS GONE ABOUT
ONE-HALF HOUR AND THEN RETURNED WITH THE ALCOHOL.  THE SECOND TIME I
MET HIM ON THE CORNER OF BRUCKNER BOULEVARD AND SOUNDVIEW AVENUE.  FROM
THEN ON HE WOULD ALTERNATE THE PROCEDURE:  I WOULD MEET HIM ONE NIGHT
ON 138TH STREET AND THE NEXT TIME AT SOUNDVIEW AVENUE. 

"ABOUT TWO MONTHS AGO, I BEGAN MEETING BOBBY AT THE SHELL GASOLINE
STATION KNOWN AS THE BRONX RIVER SERVICE STATION ON BRUCKNER BOULEVARD
JUST PAST THE BRIDGE CROSSING OVER TO BRONX RIVER.  I WOULD USUALLY
LEAVE MY CAR PARKED ON THE STREET NEAR THE GAS STATION AND MEET BOBBY
OUTSIDE OF THE GAS STATION.  HE TOLD ME NOT TO GO INTO THE GAS STATION
AS THE ATTENDANT MIGHT NOT LIKE IT. 

"ABOUT A MONTH AGO, BOBBY INTRODUCED ME TO ANOTHER WHOSE NAME I DO
NOT KNOW.  I HAVE BEEN SHOWN A PHOTOGRAPH MARKED ATU 3642 N.Y., DATED
12/29/51 OF CARMINE MARGIASSO, AND IDENTIFY IT AS THAT OF THE MAN TO
WHOM BOBBY INTRODUCED ME.  BOBBY ALSO TOLD ME THAT IF HE WAS NOT
PRESENT WHEN I MET MARGIASSO, I WAS NOT TO GIVE MARGIASSO ANY MONEY BUT
WAS TO PAY HIM (BOBBY) THE NEXT TIME I SAW HIM.   MARGIASSO ALSO
FOLLOWED THE SAME PROCEDURE: HE WOULD TAKE MY CAR, WOULD BE GONE ABOUT
20 MINUTES, AND THEN RETURN WITH THE ALCOHOL.  MARGIASSO PICKED UP MY
CAR ABOUT FOUR TIMES. 

"MY PURCHASES FROM BOBBY WOULD CONSIST OF TWO OR THREE 5-GALLON CANS
OF ALCOHOL AT A TIME AND WERE MADE ONCE OR TWICE A WEEK.  THE LAST TWO
TIMES I PAID BOBBY $38 A CAN. 

"ON THE EVENING OF FRIDAY, DECEMBER 28, 1951, I HAD ORDERED TWO CANS,
AND WHEN MARGIASSO TOOK MY CAR I WAITED IN THE LUNCH ROOM NEAR THE GAS
STATION.  WHEN I THOUGHT IT WAS TIME FOR MARGIASSO TO RETURN, I WENT
OVER TO THE GAS STATION AND WAITED IN THE OFFICE AFTER PURCHASING A
PACKAGE OF CIGARETTES.  TWO OFFICERS WHO WERE FEDERAL OFFICERS CAME IN
AND PLACED ME AND WILLIAM HUDSON UNDER ARREST.  SHORTLY AFTER THAT
HAPPENED, BOBBY DROVE UP AND WAS ARRESTED BY THE FEDERAL OFFICERS. 

"I HAVE READ THE ABOVE STATEMENT CONSISTING OF THREE PAGES AND IT IS
TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. 

"(SIGNED) JAMES WHITLEY 

"JAMES WHITLEY 

"SWORN TO BEFORE ME 

THIS 5TH DAY OF JANUARY 1952. 

"(SIGNEDWILLIAM GREENBERG 

"WILLIAM GREENBERG, SPEC. INV. 

"WITNESS: 

"(SIGNED) ALBERT MILLER 

"ALBERT MILLER, SPEC. INV." 

229 F.2D 319, 324-326. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS,
AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

PROSECUTIONS FOR CONSPIRACY PRESENT DIFFICULTIES AND TEMPTATIONS
FAMILIAR TO ANYONE WITH EXPERIENCE AS A FEDERAL PROSECUTOR.  THE
DIFFICULTIES DERIVE FROM OBSERVANCE OF THE RULES GOVERNING EVIDENCE
ADMISSIBLE AGAINST SOME BUT NOT ALL DEFENDANTS IN A CRIMINAL CASE.  THE
TEMPTATIONS DERIVE FROM THE ADVANTAGES OF PROSECUTING IN ONE TRIAL TWO
OR MORE PERSONS COLLABORATING IN A CRIMINAL ENTERPRISE.  ONE OF THE
MOST RECURRING OF THE DIFFICULTIES PERTAINS TO INCRIMINATING
DECLARATIONS BY ONE OR MORE OF THE DEFENDANTS THAT ARE NOT ADMISSIBLE
AGAINST OTHERS.  THE DILEMMA IS USUALLY RESOLVED BY ADMITTING SUCH
EVIDENCE AGAINST THE DECLARANT BUT CAUTIONING THE JURY AGAINST ITS USE
IN DETERMINING THE GUILT OF THE OTHERS.  THE FACT OF THE MATTER IS THAT
TOO OFTEN SUCH ADMONITION AGAINST MISUSE IS INTRINSICALLY INEFFECTIVE
IN THAT THE EFFECT OF SUCH A NONADMISSIBLE DECLARATION CANNOT BE WIPED
FROM THE BRAINS OF THE JURORS.  THE ADMONITION THEREFORE BECOMES A
FUTILE COLLOCATION OF WORDS AND FAILS OF ITS PURPOSE AS A LEGAL
PROTECTION TO DEFENDANTS AGAINST WHOM SUCH DECLARATION SHOULD NOT
TELL.  WHILE ENFORCING THE RULE OF ADMITTING THE DECLARATION SOLELY
AGAINST A DECLARANT AND ADMONISHING THE JURY NOT TO CONSIDER IT AGAINST
OTHER DEFENDANTS, JUDGE LEARNED HAND, IN A SERIES OF CASES, HAS
RECOGNIZED THE PSYCHOLOGICAL FEAT THAT THIS SOLUTION OF THE DILEMMA
DEMANDS OF JURIES.  HE THUS STATED THE PROBLEM: 

"IN EFFECT, HOWEVER, THE RULE PROBABLY FURTHERS, RATHER THAN IMPEDES,
THE SEARCH FOR TRUTH, AND THIS PERHAPS EXCUSES THE DEVICE WHICH
SATISFIES FORM WHILE IT VIOLATES SUBSTANCE; THAT IS, THE RECOMMENDATION
TO THE JURY OF A MENTAL GYMNASTIC WHICH IS BEYOND, NOT ONLY THEIR
POWERS, BUT ANYBODY ELSE'S."  NASH V. UNITED STATES, 54 F.2D 1006,
1007. 

IT MAY WELL BE THAT WHERE SUCH A DECLARATION ONLY GLANCINGLY, AS IT
WERE, AFFECTS A CO-DEFENDANT WHO CANNOT BE CHARGED WITH THE ADMITTED
DECLARATION, THE RULE ENFORCED BY THE COURT IN THIS CASE DOES TOO
LITTLE HARM NOT TO LEAVE ITS APPLICATION TO THE DISCRETION OF THE TRIAL
JUDGE.  BUT WHERE THE CONSPIRATOR'S STATEMENT IS SO DAMNING TO ANOTHER
AGAINST WHOM IT IS INADMISSIBLE, AS IS TRUE IN THIS CASE, THE
DIFFICULTY OF INTRODUCING IT AGAINST THE DECLARANT WITHOUT INEVITABLE
HARM TO A CO-CONSPIRATOR, THE PETITIONER IN THIS CASE, IS NO
JUSTIFICATION FOR CAUSING SUCH HARM.  THE GOVERNMENT SHOULD NOT HAVE
THE WINDFALL OF HAVING THE JURY BE INFLUENCED BY EVIDENCE AGAINST A
DEFENDANT WHICH, AS A MATTER OF LAW, THEY SHOULD NOT CONSIDER BUT WHICH
THEY CANNOT PUT OUT OF THEIR MINDS.  AFTER ALL, THE PROSECUTION COULD
USE THE CONFESSION AGAINST THE CONFESSOR AND AT THE SAME TIME AVOID
SUCH WEIGHTY UNFAIRNESS AGAINST A DEFENDANT WHO CANNOT BE CHARGED WITH
THE DECLARATION BY NOT TRYING ALL THE CO-CONSPIRATORS IN A SINGLE
TRIAL. 

IT IS NO ANSWER TO SUGGEST THAT HERE THE PETITIONER-DEFENDANT'S GUILT
IS AMPLY DEMONSTRATED BY THE UNINFECTED TESTIMONY AGAINST HIM.  THAT IS
THE BEST OF REASONS FOR TRYING HIM FREED FROM THE INEVITABLE UNFAIRNESS
OF BEING AFFECTED BY TESTIMONY NOT ADMISSIBLE AGAINST HIM.  IN ANY
EVENT, IT IS NOT FOR AN APPELLATE TRIBUNAL TO KNOW HOW THE JURY'S MIND
WOULD HAVE OPERATED IF POWERFULLY IMPROPER EVIDENCE HAD NOT IN EFFECT
BEEN PUT IN THE SCALE AGAINST PETITIONER. 

IN SUBSTANCE, I AGREE WITH THE DISSENTING OPINION OF JUDGE FRANK,
BELOW, 229 F.2D 319, 322, AND WOULD THEREFORE REVERSE. 
..END :






















LABUY V. HOWES LEATHER CO., INC. 352 U.S. 249 


NO. 27.  ARGUED OCTOBER 17-18, 1956 - DECIDED JANUARY 14, 1957 - 226
F.2D 703, AFFIRMED. 


PETITIONER IS A FEDERAL DISTRICT JUDGE WHO HAD PENDING BEFORE HIM TWO
CIVIL ANTITRUST ACTIONS BROUGHT BY PRIVATE PARTIES.  OVER A PERIOD OF
YEARS, HE HAD RULED UPON MANY PRELIMINARY PLEAS AND MOTIONS, REQUIRING,
IN SEVERAL INSTANCES, THE HEARING OF ORAL ARGUMENTS, THE CONSIDERATION
OF BRIEFS AND THE WRITING OF OPINIONS AND MEMORANDA.  CONFRONTED WITH
MOTIONS TO SET THE CASES FOR TRIAL AND A STATEMENT THAT IT WOULD TAKE
SIX WEEKS TO TRY ONE OF THEM, HE SUA SPONTE ENTERED ORDERS UNDER RULE
53(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE REFERRING BOTH CASES TO A
MASTER FOR HEARINGS AND THE PREPARATION OF FINDINGS OF FACT AND
CONCLUSIONS OF LAW.  AS EXCEPTIONAL CONDITIONS REQUIRING THE
REFERENCES, HE CITED "AN EXTREMELY CONGESTED CALENDAR," THE COMPLEXITY
OF THE CASES AND THE FACT THAT THEY WOULD TAKE CONSIDERABLE TIME TO
TRY.  THE COURT OF APPEALS ISSUED WRITS OF MANDAMUS REQUIRING
PETITIONER TO VACATE HIS ORDERS OF REFERENCE.  HELD:  THE COURT OF
APPEALS PROPERLY ISSUED THE WRITS OF MANDAMUS.  PP. 250-260. 

1.  SINCE THE COURT OF APPEALS COULD AT SOME STAGE OF THE ANTITRUST
PROCEEDINGS ENTERTAIN APPEALS IN THESE CASES, IT HAD DISCRETIONARY
POWER UNDER THE ALL WRITS ACT, 28 U.S.C. SEC. 1651(A), IN PROPER
CIRCUMSTANCES TO ISSUE WRITS OF MANDAMUS REACHING THEM.  PP. 254-255. 

2.  IN THE EXCEPTIONAL CIRCUMSTANCES OF THESE CASES, THE COURT OF
APPEALS PROPERLY EXERCISED ITS DISCRETIONARY POWER TO ISSUE THE WRITS
OF MANDAMUS, SINCE IT WAS JUSTIFIED IN FINDING THAT THE ORDERS OF
REFERENCE WERE AN ABUSE OF PETITIONER'S POWER UNDER RULE 53(B),
AMOUNTING TO LITTLE LESS THAN AN ABDICATION OF THE JUDICIAL FUNCTION
AND DEPRIVING THE PARTIES OF TRIALS BEFORE THE COURT ON THE BASIC
ISSUES INVOLVED IN THE LITIGATION.  BANKERS LIFE & CASUALTY CO. V.
HOLLAND, 346 U.S. 379, AND PARR V. UNITED STATES, 351 U.S. 513,
DISTINGUISHED.  PP. 255-260. 

(A)  THE USE OF MASTERS IS TO AID JUDGES IN THE PERFORMANCE OF
SPECIFIC DUTIES AS THEY ARISE IN THE PROGRESS OF A CAUSE - NOT TO
DISPLACE THE COURT.  P. 256. 

(B)  CONGESTION OF THE CALENDAR IN ITSELF IS NOT SUCH AN EXCEPTIONAL
CIRCUMSTANCE AS TO WARRANT REFERENCE TO A MASTER.  P. 259. 

(C)  THAT THE CASES REFERRED HAD UNUSUALLY COMPLEX ISSUES OF FACT AND
LAW IS NOT JUSTIFICATION FOR REFERENCE TO A MASTER BUT RATHER AN
IMPELLING REASON FOR TRIAL BEFORE A REGULAR EXPERIENCED JUDGE.  P.
259. 

(D)  NOR DOES PETITIONER'S CLAIM OF THE GREAT LENGTH OF TIME THESE
TRIALS WILL REQUIRE OFFER EXCEPTIONAL GROUNDS FOR REFERENCE TO A
MASTER.  P. 259. 

(E)  THE DETAILED ACCOUNTING REQUIRED IN ORDER TO DETERMINE THE
DAMAGES SUFFERED BY EACH PLAINTIFF MIGHT BE REFERRED TO A MASTER AFTER
THE COURT HAS DETERMINED THE OVER-ALL LIABILITY OF DEFENDANTS, PROVIDED
THE CIRCUMSTANCES INDICATE THAT THE USE OF THE COURT'S TIME IS NOT
WARRANTED IN RECEIVING THE PROOF AND MAKING THE TABULATION.  P. 259. 

3.  SUPERVISORY CONTROL OF THE DISTRICT COURTS BY THE COURTS OF
APPEALS IS NECESSARY TO PROPER JUDICIAL ADMINISTRATION IN THE FEDERAL
SYSTEM; AND THE ALL WRITS ACT CONFERS ON THE COURTS OF APPEALS THE
DISCRETIONARY POWER TO ISSUE WRITS OF MANDAMUS IN THE EXCEPTIONAL
CIRCUMSTANCES EXISTING HERE.  PP. 259-260. 

LA BUY, UNITED STATES DISTRICT JUDGE, V. HOWES LEATHER CO., INC., ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE TWO CONSOLIDATED CASES PRESENT A QUESTION OF THE POWER OF THE
COURTS OF APPEALS TO ISSUE WRITS OF MANDAMUS TO COMPEL A DISTRICT JUDGE
TO VACATE HIS ORDERS ENTERED UNDER RULE 53(B) OF THE FEDERAL RULES OF
CIVIL PROCEDURE REFERRING ANTITRUST CASES FOR TRIAL BEFORE A MASTER. 
THE PETITIONER, A UNITED STATES DISTRICT JUDGE SITTING IN THE NORTHERN
DISTRICT OF ILLINOIS, CONTENDS THAT THE COURTS OF APPEALS HAVE NO SUCH
POWER AND THAT, EVEN IF THEY DID, THESE CASES WERE NOT APPROPRIATE ONES
FOR ITS EXERCISE.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT HAS
DECIDED UNANIMOUSLY THAT IT HAS SUCH POWER AND, BY A DIVIDED COURT,
THAT THE CIRCUMSTANCES SURROUNDING THE REFERENCES BY THE PETITIONER
REQUIRED IT TO ISSUE THE MANDAMUS ABOUT WHICH HE COMPLAINS.  226 F.2D
703.  THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE
FEDERAL RULES OF CIVIL PROCEDURE, TOGETHER WITH THE UNCERTAINTY
EXISTING ON THE ISSUE AMONG THE COURTS OF APPEALS, LED TO OUR GRANT OF
A WRIT OF CERTIORARI.  350 U.S. 964.  WE CONCLUDE THAT THE COURT OF
APPEALS PROPERLY ISSUED THE WRITS OF MANDAMUS. 

HISTORY OF THE LITIGATION.  - THESE PETITIONS FOR MANDAMUS, FILED IN
THE COURT OF APPEALS, AROSE FROM TWO ANTITRUST ACTIONS INSTITUTED IN
THE DISTRICT COURT IN 1950.  (FN1)  ROHLFING (FN2) INVOLVES 87
PLAINTIFFS, ALL OPERATORS OF INDEPENDENT RETAIL SHOE REPAIR SHOPS.  THE
CLAIM OF THESE PLAINTIFFS AGAINST THE SIX NAMED DEFENDANTS -
MANUFACTURERS, WHOLESALERS, AND RETAIL MAIL ORDER HOUSES AND CHAIN
OPERATORS - IS IDENTICAL.  THE CLAIM ASSERTED IN THE COMPLAINT IS A
CONSPIRACY BETWEEN THE DEFENDANTS "TO MONOPOLIZE AND TO ATTEMPT TO
MONOPOLIZE' AND FIX THE PRICE OF SHOE REPAIR SUPPLIES SOLD IN
INTERSTATE COMMERCE IN THE CHICAGO AREA, IN VIOLATION OF THE SHERMAN
ACT.  THE ALLEGATIONS ALSO INCLUDE A PRICE DISCRIMINATION CHARGE UNDER
THE ROBINSON-PATMAN ACT.  SHAFFER (FN3) INVOLVES SIX PLAINTIFFS, ALL
WHOLESALERS OF SHOE REPAIR SUPPLIES, AND SIX DEFENDANTS, INCLUDING
MANUFACTURERS AND WHOLESALERS OF SUCH SUPPLIES AND A RETAIL SHOE SHOP
CHAIN OPERATOR.  THE ALLEGATIONS HERE ALSO INCLUDE CHARGES OF MONOPOLY
AND PRICE FIXING UNDER THE SHERMAN ACT AND PRICE DISCRIMINATION IN
VIOLATION OF THE ROBINSON-PATMAN ACT.  BOTH COMPLAINTS PRAY FOR
INJUNCTIVE RELIEF, TREBLE DAMAGES, AND AN ACCOUNTING WITH RESPECT TO
THE DISCRIMINATORY PRICE DIFFERENTIALS CHARGED. 

THE RECORD INDICATES THAT THE CASES HAD BEEN BURDENSOME TO THE
PETITIONER.  IN ROHLFING ALONE, 27 PAGES OF THE RECORD ARE DEVOTED TO
DOCKET ENTRIES REFLECTING THAT PETITIONER HAD CONDUCTED MANY HEARINGS
ON PRELIMINARY PLEAS AND MOTIONS.  THE ORIGINAL COMPLAINT HAD BEEN
TWICE AMENDED AS A RESULT OF ORDERS OF THE COURT IN REGARD TO
MISJOINDERS AND SEVERANCE; 14 DEFENDANTS HAD BEEN DISMISSED WITH
PREJUDICE; SUMMARY JUDGMENT HEARINGS HAD RESULTED IN A REFUSAL TO ENTER
A JUDGMENT FOR SOME OF THE DEFENDANTS ON THE PLEADINGS; OVER 50
DEPOSITIONS HAD BEEN TAKEN; AND HEARINGS TO COMPEL TESTIMONY AND
REQUIRE THE PRODUCTION AND INSPECTION OF RECORDS WERE HELD.  IT APPEARS
THAT SEVERAL OF THE HEARINGS WERE EXTENDED AND INCLUDED NOT ONLY ORAL
ARGUMENT BUT SUBMISSION OF BRIEFS, AND RESULTED IN THE FILING OF
OPINIONS AND MEMORANDA BY THE PETITIONER.  IT IS REASONABLE TO CONCLUDE
THAT MUCH TIME WOULD HAVE BEEN SAVED AT THE TRIAL HAD PETITIONER HEARD
THE CASE BECAUSE OF HIS FAMILIARITY WITH THE LITIGATION. 

THE REFERENCES TO THE MASTER.  - THE REFERENCES TO THE MASTER WERE
MADE UNDER THE AUTHORITY OF RULE 53(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  (FN4)  THE CASES WERE CALLED ON FEBRUARY 23, 1955, ON A
MOTION TO RESET THEM FOR TRIAL.  ROHLFING WAS "NO. 1 BELOW THE BLACK
LINE" ON THE TRIAL LIST, WHICH GAVE IT A PREFERRED SETTING.  ALL
PARTIES WERE ANXIOUS FOR AN EARLY TRIAL, BUT PLAINTIFFS WISHED AN
ADJOURNMENT UNTIL MAY.  THE PETITIONER ANNOUNCED THAT "IT HAS TAKEN A
LONG TIME TO GET THIS CASE AT ISSUE.  I REMEMBER HEARING MORE MOTIONS,
I THINK, IN THIS CASE THAN ANY CASE I HAVE EVER SAT ON IN THIS COURT." 
THE PLAINITFFS ESTIMATED THAT THE TRIAL WOULD TAKE SIX WEEKS, WHEREUPON
PETITIONER STATED HE DID NOT KNOW WHEN HE COULD TRY THE CASE "IF IT IS
GOING TO TAKE THIS LONG."  HE ASKED IF THE PARTIES COULD AGREE "TO HAVE
A MASTER HEAR" IT.  THE PARTIES IGNORED THIS QUERY AND AT A CONFERENCE
IN CHAMBERS THE NEXT DAY PETITIONER ENTERED THE ORDERS OF REFERENCE SUA
SPONTE.  (FN5)  THE ORDERS DECLARED THAT THE COURT WAS "CONFRONTED WITH
AN EXTREMELY CONGESTED CALENDAR" AND THAT "EXCEPTIONAL CONDITIONS EXIST
FOR THIS REASON" REQUIRING THE REFERENCES.  THE CASES WERE REFERRED TO
THE MASTER "TO TAKE EVIDENCE AND TO REPORT THE SAME TO THIS COURT,
TOGETHER WITH HIS FINDINGS OF FACT AND CONCLUSIONS OF LAW."  IT WAS
FURTHER ORDERED IN EACH CASE THAT "THE MASTER SHALL COMMENCE THE TRIAL
OF THIS CAUSE" ON A CERTAIN DATE AND CONTINUE WITH DILIGENCE, AND THAT
THE PARTIES SUPPLY SECURITY FOR COSTS.  WHILE THE PARTIES HAD DEPOSITED
SOME $8,000 COSTS, THE RECORD DISCLOSES THAT ALL PARTIES OBJECTED TO
THE REFERENCES AND FILED MOTIONS TO VACATE THEM.  UPON PETITIONER'S
REFUSAL TO VACATE THE REFERENCES, THESE MANDAMUS ACTIONS WERE FILED IN
THE COURT OF APPEALS SEEKING THE ISSUANCE OF WRITS ORDERING PETITIONER
TO DO SO.  THESE APPLICATIONS WERE GROUNDED ON 28 U.S.C. SEC. 1651(A),
THE ALL WRITS ACT.  (FN6)  IN HIS ANSWER TO THE SHOW CAUSE ORDERS
ISSUED BY THE COURT OF APPEALS, PETITIONER AMPLIFIED THE REASONS FOR
THE REFERENCES, STATING "THAT THE CASES WERE VERY COMPLICATED AND
COMPLEX, THAT THEY WOULD TAKE CONSIDERABLE TIME TO TRY," AND THAT HIS
"CALENDAR WAS CONGESTED."  DECLARING THAT THE REFERENCES AMOUNTED TO "A
REFUSAL ON HIS (PETITIONER'S) PART, AS A JUDGE, TO TRY THE CAUSES IN
DUE COURSE," THE COURT OF APPEALS CONCLUDED THAT "IN VIEW OF THE
EXTRAORDINARY NATURE OF THESE CAUSES" THE REFERENCES MUST BE VACATED
"IF WE FIND THAT THE ORDERS WERE BEYOND THE COURT'S POWER UNDER THE
PERTINENT RULE."  226 F.2D, AT 705, 706.  AND, IT BEING SO FOUND, THE
WRITS ISSUED UNDER THE AUTHORITY OF THE ALL WRITS ACT.  IT IS NOT
DISPUTED THAT THE SAME PRINCIPLES AND CONSIDERATIONS AS TO THE
PROPRIETY OF THE ISSUANCE OF THE WRITS APPLY EQUALLY TO THE TWO CASES. 

THE POWER OF THE COURTS OF APPEALS.  - PETITIONER CONTENDS THAT THE
POWER OF THE COURTS OF APPEALS DOES NOT EXTEND TO THE ISSUANCE OF WRITS
OF MANDAMUS TO REVIEW INTERLOCUTORY ORDERS EXCEPT IN THOSE CASES WHERE
THE REVIEW OF THE CASE ON APPEAL AFTER FINAL JUDGMENT WOULD BE
FRUSTRATED.  ASSERTING THAT THE ORDERS OF REFERENCE WERE IN EXERCISE OF
HIS JURISDICTION UNDER RULE 53(B), PETITIONER URGES THAT SUCH ACTION
CAN BE REVIEWED ONLY ON APPEAL AND NOT BY WRIT OF MANDAMUS, SINCE BY
CONGRESSIONAL ENACTMENT APPELLATE REVIEW OF A DISTRICT COURT'S ORDERS
MAY BE HAD ONLY AFTER A FINAL JUDGMENT.  THE QUESTION OF NAKED POWER
HAS LONG BEEN SETTLED BY THIS COURT.  AS LATE AS ROCHE V. EVAPORATED
MILK ASSOCIATION, 319 U.S. 21 (1943), MR. CHIEF JUSTICE STONE REVIEWED
THE DECISIONS AND, IN CONSIDERING THE POWER OF COURTS OF APPEALS TO
ISSUE WRITS OF MANDAMUS, THE COURT HELD THAT "THE COMMON LAW WRITS,
LIKE EQUITABLE REMEDIES, MAY BE GRANTED OR WITHHELD IN THE SOUND
DISCRETION OF THE COURT."  ID., AT 25.  THE RECODIFICATION OF THE ALL
WRITS ACT IN 1948, WHICH CONSOLIDATED OLD SECS. 342 AND 377 INTO THE
PRESENT SEC. 1651(A), DID NOT AFFECT THE POWER OF THE COURTS OF APPEALS
TO ISSUE WRITS OF MANDAMUS IN AID OF JURISDICTION.  SEE BANKERS LIFE &
CASUALTY CO. V. HOLLAND, 346 U.S. 379, 382-383 (1953).  SINCE THE COURT
OF APPEALS COULD AT SOME STAGE OF THE ANTITRUST PROCEEDINGS ENTERTAIN
APPEALS IN THESE CASES, IT HAS POWER IN PROPER CIRCUMSTANCES, AS HERE,
TO ISSUE WRITS OF MANDAMUS REACHING THEM.  ROCHE, SUPRA, AT 25, AND
CASES THERE CITED.  THIS IS NOT TO SAY THAT THE CONCLUSION WE REACH ON
THE FACTS OF THIS CASE IS INTENDED, OR CAN BE USED, TO AUTHORIZE THE
INDISCRIMINATE USE OF PREROGATIVE WRITS AS A MEANS OF REVIEWING
INTERLOCUTORY ORDERS.  WE PASS ON, THEN, TO THE ONLY REAL QUESTION
INVOLVED, I.E., WHETHER THE EXERCISE OF THE POWER BY THE COURT OF
APPEALS WAS PROPER IN THE CASES NOW BEFORE US. 

THE DISCRETIONARY USE OF THE WRITS.  - IT APPEARS FROM THE DOCKET
ENTRIES TO WHICH WE HERETOFORE REFERRED THAT THE PETITIONER WAS WELL
INFORMED AS TO THE NATURE OF THE ANTITRUST LITIGATION, THE PLEADINGS OF
THE PARTIES, AND THE GIST OF THE PLAINTIFFS' CLAIMS.  HE WAS WELL AWARE
OF THE THEORY OF THE DEFENSE AND MUCH OF THE PROOF WHICH NECESSARILY
WAS OUTLINED IN THE VARIOUS REQUESTS FOR DISCOVERY, ADMISSIONS,
INTERROGATORIES, AND DEPOSITIONS.  HE HEARD ARGUMENTS ON MOTIONS TO
DISMISS, TO COMPEL TESTIMONY ON DEPOSITIONS, AND FOR SUMMARY JUDGMENT. 
IN FACT, PETITIONER'S KNOWLEDGE OF THE CASES AT THE TIME OF THE
REFERENCES, TOGETHER WITH HIS LONG EXPERIENCE IN THE ANTITRUST FIELD,
POINTS TO THE CONCLUSION THAT HE COULD DISPOSE OF THE LITIGATION WITH
GREATER DISPATCH AND LESS EFFORT THAN ANYONE ELSE.  NEVERTHELESS, HE
REFERRED BOTH SUITS TO A MASTER ON THE GENERAL ISSUE.  FURTHERMORE,
NEITHER THE EXISTENCE OF THE ALLEGED CONSPIRACY NOR THE QUESTION OF
LIABILITY VEL NON HAD BEEN DETERMINED IN EITHER CASE.  THESE ISSUES, AS
WELL AS THE DAMAGES, IF ANY, AND THE QUESTION CONCERNING THE ISSUANCE
OF AN INJUNCTION, WERE LIKEWISE INCLUDED IN THE REFERENCES.  UNDER ALL
OF THE CIRCUMSTANCES, WE BELIEVE THE COURT OF APPEALS WAS JUSTIFIED IN
FINDING THE ORDERS OF REFERENCE WERE AN ABUSE OF THE PETITIONER'S POWER
UNDER RULE 53(B).  THEY AMOUNTED TO LITTLE LESS THAN AN ABDICATION OF
THE JUDICIAL FUNCTION DEPRIVING THE PARTIES OF A TRIAL BEFORE THE COURT
ON THE BASIC ISSUES INVOLVED IN THE LITIGATION. 

THE USE OF MASTERS IS "TO AID JUDGES IN THE PERFORMANCE OF SPECIFIC
JUDICIAL DUTIES, AS THEY MAY ARISE IN THE PROGRESS OF A CAUSE," EX
PARTE PETERSON, 253 U.S. 300, 312 (1920), AND NOT TO DISPLACE THE
COURT.  THE EXCEPTIONAL CIRCUMSTANCES HERE WARRANT THE USE OF THE
EXTRAORDINARY REMEDY OF MANDAMUS.  SEE MARYLAND V. SOPER, 270 U.S. 9,
30 (1926).  AS THIS COURT POINTED OUT IN LOS ANGELES BRUSH CORP. V.
JAMES, 272 U.S. 701, 706 (1927):  "  ...  WHERE THE SUBJECT CONCERNS
THE ENFORCEMENT OF THE  ...  RULES WHICH BY LAW IT IS THE DUTY OF THIS
COURT TO FORMULATE AND PUT IN FORCE," MANDAMUS SHOULD ISSUE TO PREVENT
SUCH ACTION THEREUNDER SO PALPABLY IMPROPER AS TO PLACE IT BEYOND THE
SCOPE OF THE RULE INVOKED.  AS WAS SAID THERE AT PAGE 707, WERE THE
COURT "  ...  TO FIND THAT THE RULES HAVE BEEN PRACTICALLY NULLIFIED BY
A DISTRICT JUDGE  ...  IT WOULD NOT HESITATE TO RESTRAIN HIM  ...  ." 
THE LOS ANGELES BRUSH CORP. CASE WAS CITED AS AUTHORITY IN 1940 FOR A
PER CURIAM OPINION IN MCCULLOUGH V. COSGRAVE, 309 U.S. 634, IN WHICH
THE COURT SUMMARILY ORDERED VACATED THE REFERENCE OF TWO PATENT CASES
TO A MASTER.  THE CASES AROSE FROM THE SAME DISTRICT COURT IN WHICH THE
LOS ANGELES BRUSH CORP. CASE ORIGINATED AND THE GROUNDS FOR THE
REFERENCES LARGELY FOLLOWED THAT CASE.  IT IS TO BE NOTED THAT THE
GROUNDS THERE ARE MUCH MORE INCLUSIVE THAN THOSE SET OUT HERE, ALLEGING
ALL OF THOSE CLAIMED BY THE PETITIONER AND, IN ADDITION, THE PROLONGED
ILLNESS OF THE REGULAR JUDGE AND THE FACT THAT NO OTHER JUDGE WAS
AVAILABLE TO TRY THE CASES.  IT APPEARS TO US A FORTIORI THAT THESE
CASES WERE IMPROPERLY REFERRED TO A MASTER. 

IT IS CLAIMED THAT RECENT OPINIONS OF THIS COURT ARE TO THE
CONTRARY.  PETITIONER CITES BANKERS LIFE & CASUALTY CO. V. HOLLAND, 346
U.S. 379 (1953), AND PARR V. UNITED STATES, 351 U.S. 513 (1956).   THE
FORMER CASE DID NOT CONCERN RULES PROMULGATED BY THIS COURT BUT,
RATHER, AN ACT OF CONGRESS, THE VENUE STATUTE.  FURTHERMORE, THERE WE
POINTED OUT THAT 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'  ...  ."  346 U.S., AT 383.  CERTAINLY,
AS THE COURT OF APPEALS FOUND HERE, THERE WAS A CLEAR ABUSE OF
DISCRETION.  IN THE PARR CASE, THE DISTRICT COURT HAD NOT EXCEEDED OR
REFUSED TO EXERICSE ITS FUNCTIONS.  IT DISMISSED AN INDICTMENT BECAUSE
THE GOVERNMENT HAD ELECTED TO PROSECUTE PARR IN ANOTHER DISTRICT UNDER
A NEW INDICTMENT.  THE EFFECT OF THE HOLDING WAS MERELY THAT THE
DISMISSAL OF THE FIRST INDICTMENT WAS NOT AN ABUSE OF THE DISCRETION
VESTED IN THE TRIAL JUDGE. 

IT IS ALSO CONTENDED THAT THE SEVENTH CIRCUIT HAS ERRONEOUSLY
CONSTRUED THE ALL WRITS ACT AS "CONFERRING ON IT A 'ROVING COMMISSION'
TO SUPERVISE INTERLOCUTORY ORDERS OF THE DISTRICT COURTS IN ADVANCE OF
FINAL DECISION."  OUR EXAMINATION OF ITS OPINIONS IN THIS REGARD LEADS
US TO THE CONCLUSION THAT THE COURT OF APPEALS HAS EXERCISED
COMMENDABLE SELF-RESTRAINT.  IT IS TRUE THAT MANDAMUS SHOULD BE
RESORTED TO ONLY IN EXTREME CASES, SINCE IT PLACES TRIAL JUDGES IN THE
ANOMALOUS POSITION OF BEING LITIGANTS WITHOUT COUNSEL OTHER THAN
UNCOMPENSATED VOLUNTEERS.  HOWEVER, THERE IS AN END OF PATIENCE AND IT
CLEARLY APPEARS THAT THE COURT OF APPEALS HAS FOR YEARS ADMONISHED THE
TRIAL JUDGES OF THE SEVENTH CIRCUIT THAT THE PRACTICE OF MAKING
REFERENCES "DOES NOT COMMEND ITSELF" AND "  ...  SHOULD SELDOM BE MADE,
AND IF AT ALL ONLY WHEN UNUSUAL CIRCUMSTANCES EXIST."  IN RE IRVING
AUSTIN BUILDING CORP., 100 F.2D 574, 577 (1938).  AGAIN, IN 1942, IT
POINTED OUT THAT THE WORDS "EXCEPTION" AND "EXCEPTIONAL" AS USED IN THE
REFERENCE RULE ARE NOT ELASTIC TERMS WITH THE TRIAL COURT THE SOLE
JUDGE OF THEIR ELASTICITY.  "LITIGANTS ARE ENTITLED TO A TRIAL BY THE
COURT, IN EVERY SUIT, SAVE WHERE EXCEPTIONAL CIRCUMSTANCES ARE SHOWN." 
ADVENTURES IN GOOD EATING, INC. V. BEST PLACES TO EAT, INC., 131 F.2D
809, 815.  STILL THE COURT OF APPEALS DID NOT DISTURB THE REFERENCE
PRACTICE BY REVERSAL OR MANDAMUS UNTIL THIS CASE WAS DECIDED IN OCTOBER
1955.  AGAIN, CHIEF JUDGE DUFFY IN KRINSLEY V. UNITED ARTISTS CORP.,
235 F.2D 253, 257 (1956), IN WHICH THERE WAS AN AFFIRMANCE OF A CASE
INVOLVING A REFERENCE CALLED ATTENTION TO THE FACT THAT THE PRACTICE OF
REFERRING CASES TO MASTERS WAS "  ...  ALL TOO COMMON IN THE NORTHERN
DISTRICT OF ILLINOIS  ...  ."  THE RECORD DOES NOT SHOW TO WHAT EXTENT
REFERENCES ARE MADE BY THE FULL BENCH OF THE DISTRICT COURT IN THE
NORTHERN DISTRICT; HOWEVER, IT DOES REVEAL THAT PETITIONER HAS REFERRED
11 CASES TO MASTERS IN THE PAST 6 YEARS.  BUT EVEN "A LITTLE CLOUD MAY
BRING A FLOOD'S DOWNPOUR" IF WE APPROVE THE PRACTICE HERE INDULGED,
PARTICULARLY IN THE FACE OF PRESENTLY CONGESTED DOCKETS, INCREASED
FILINGS, AND MORE EXTENDED TRIALS.  THIS IS NOT TO SAY THAT WE ARE
NEITHER AWARE OF NOR FULLY APPRECIATIVE OF THE UNFORTUNATE CONGESTION
OF THE COURT CALENDAR IN MANY OF OUR DISTRICT COURTS.  THE USE OF
PROCEDURAL DEVICES IN THE HEAVILY CONGESTED DISTRICTS HAS PROVEN TO BE
MOST HELPFUL IN REDUCING DOCKET CONGESTION.  ILLUSTRATIVE OF SUCH
TECHNIQUES ARE PROVISION FOR AN ASSIGNMENT COMMISSIONER TO HANDLE THE
ASSIGNMENT OF ALL CASES; THE ASSIGNMENT OF JUDGES TO HANDLE ONLY
MOTIONS, PLEAS, AND PRETRIAL PROCEEDINGS; AND SEPARATE CALENDARS FOR
CIVIL AND CRIMINAL TRIALS IN CASES THAT HAVE REACHED ISSUE.  WE
ENUMERATE THESE MERELY AS AN EXAMPLE OF THE PROGRESS MADE IN JUDICIAL
ADMINISTRATION THROUGH THE USE OF ENLIGHTENED PROCEDURAL TECHNIQUES. 
IT GOES WITHOUT SAYING THAT THEY CAN BE USED EFFECTIVELY ONLY WHERE
ADAPTABLE TO THE SPECIFIC PROBLEMS OF A DISTRICT.  BUT, BE THAT AS IT
MAY, CONGESTION IN ITSELF IS NOT SUCH AN EXCEPTIONAL CIRCUMSTANCE AS TO
WARRANT A REFERENCE TO A MASTER.  IF SUCH WERE THE TEST, PRESENT
CONGESTION WOULD MAKE REFERENCES THE RULE RATHER THAN THE EXCEPTION. 
PETITIONER REALIZES THIS, FOR IN ADDITION TO CALENDAR CONGESTION HE
ALLEGES THAT THE CASES REFERRED HAD UNUSUAL COMPLEXITY OF ISSUES OF
BOTH FACT AND LAW.  BUT MOST LITIGATION IN THE ANTITRUST FIELD IS
COMPLEX.  IT DOES NOT FOLLOW THAT ANTITRUST LITIGANTS ARE NOT ENTITLED
TO A TRIAL BEFORE A COURT.  ON THE CONTRARY, WE BELIEVE THAT THIS IS AN
IMPELLING REASON FOR TRIAL BEFORE A REGULAR, EXPERIENCED TRIAL JUDGE
RATHER THAN BEFORE A TEMPORARY SUBSTITUTE APPOINTED ON AN AD HOC BASIS
AND ORDINARILY NOT EXPERIENCED IN JUDICIAL WORK.  NOR DOES PETITIONER'S
CLAIM OF THE GREAT LENGTH OF TIME THESE TRIALS WILL REQUIRE OFFER
EXCEPTIONAL GROUNDS.  THE FINAL GROUND ASSERTED BY PETITIONER WAS WITH
REFERENCE TO THE VOLUMINOUS ACCOUNTING WHICH WOULD BE NECESSARY IN THE
EVENT THE PLAINITFFS PREVAILED.  WE AGREE THAT THE DETAILED ACCOUNTING
REQUIRED IN ORDER TO DETERMINE THE DAMAGES SUFFERED BY EACH PLAINTIFF
MIGHT BE REFERRED TO A MASTER AFTER THE COURT HAS DETERMINED THE OVER
ALL LIABILITY OF DEFENDANTS, PROVIDED THE CIRCUMSTANCES INDICATE THAT
THE USE OF THE COURT'S TIME IS NOT WARRANTED IN RECEIVING THE PROOF AND
MAKING THE TABULATION. 

WE BELIEVE THAT SUPERVISORY CONTROL OF THE DISTRICT COURTS BY THE
COURTS OF APPEALS IS NECESSARY TO PROPER JUDICIAL ADMINISTRATION IN THE
FEDERAL SYSTEM.  THE ALL WRITS ACT CONFERS ON THE COURTS OF APPEALS THE
DISCRETIONARY POWER TO ISSUE WRITS OF MANDAMUS IN THE EXCEPTIONAL
CIRCUMSTANCES EXISTING HERE.  ITS JUDGMENT IS THEREFORE AFFIRMED. 

FN1  ROHLFING V. CAT'S PAW RUBBER CO., NO. 50 C 229, U.S.D.C.N.D.
ILL., AND SHAFFER V. U.S. RUBBER CO., NO. 50 C 844, U.S.D.C.N.D. ILL. 

FN2  THE FIGURES INDICATED REFER TO THE NUMBER OF PARTIES AT THE TIME
OF THE PETITION FOR MANDAMUS.  WHEN THE ACTION WAS ORIGINALLY FILED
THERE WERE 87 PLAINTIFFS AND 25 DEFENDANTS. 

FN3  THE FIGURES INDICATED REFER TO THE NUMBER OF PARTIES AT THE TIME
OF THE PETITION FOR MANDAMUS.  WHEN THE ACTION WAS ORIGINALLY FILED
THERE WERE 10 PLAINTIFFS AND 20 DEFENDANTS. 

FN4  RULE 53(B) PROVIDES: 

"(B)  REFERENCE.  A REFERENCE TO A MASTER SHALL BE THE EXCEPTION AND
NOT THE RULE.  IN ACTIONS TO BE TRIED BY A JURY, A REFERENCE SHALL BE
MADE ONLY WHEN THE ISSUES ARE COMPLICATED; IN ACTIONS TO BE TRIED
WITHOUT A JURY, SAVE IN MATTERS OF ACCOUNT, A REFERENCE SHALL BE MADE
ONLY UPON A SHOWING THAT SOME EXCEPTIONAL CONDITION REQUIRES IT." 

FN5  THE FACT THAT THE MASTER IS AN ACTIVE PRACTITIONER WOULD MAKE
THE COMMENT OF CHIEF JUSTICE VANDERBILT WITH REGARD TO THE EFFECT OF
REFERENCES APPROPRIATE HERE.  IN HIS WORK, CASES AND MATERIALS ON
MODERN PROCEDURE AND JUDICIAL ADMINISTRATION (1952), AT PAGES 1240
1241, HE STATES: 

"THERE IS ONE SPECIAL CAUSE OF DELAY IN GETTING CASES ON FOR TRIAL
THAT MUST BE SINGLED OUT FOR PARTICULAR CONDEMNATION, THE ALL-TOO
PREVALENT HABIT OF SENDING MATTERS TO A REFERENCE.  THERE IS NO MORE
EFFECTIVE WAY OF PUTTING A CASE TO SLEEP FOR AN INDEFINITE PERIOD THAN
TO PERMIT IT TO GO TO A REFERENCE WITH A BUSY LAWYER OR REFEREE.  ONLY
A DRASTIC ADMINISTRATIVE RULE, RIGIDLY ENFORCED, STRICTLY LIMITING THE
MATTERS IN WHICH A REFERENCE MAY BE HAD AND REQUIRING WEEKLY REPORTS AS
TO THE PROGRESS OF EACH REFERENCE WILL PUT TO ROUT THIS INVETERATE
ENEMY OF DISPATCH IN THE TRIAL OF CASES." 

FN6  "(A) THE SUPREME COURT AND ALL COURTS ESTABLISHED BY ACT OF
CONGRESS MAY ISSUE ALL WRITS NECESSARY OR APPROPRIATE IN AID OF THEIR
RESPECTIVE JURISDICTIONS AND AGREEABLE TO THE USAGES AND PRINCIPLES OF
LAW." 

MR. JUSTICE BRENNAN, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
BURTON AND MR. JUSTICE HARLAN JOIN, DISSENTING. 

THE ISSUE HERE IS NOT WHETHER JUDGE LA BUY'S ORDER WAS REVIEWABLE BY
THE COURT OF APPEALS.  THE SOLE QUESTION IS WHETHER REVIEW SHOULD HAVE
AWAITED FINAL DECISION IN THE CAUSE OR WHETHER THE ORDER WAS REVIEWABLE
BEFORE FINAL DECISION BY WAY OF A PETITION UNDER THE ALL WRITS ACT FOR
THE ISSUANCE OF A WRIT OF MANDAMUS ADDRESSED TO IT.  I DO NOT AGREE
THAT THE WRIT DIRECTING JUDGE LA BUY TO VACATE THE ORDER OF REFERENCE
WAS WITHIN THE BOUNDS OF THE DISCRETIONARY POWER OF THE COURT OF
APPEALS TO ISSUE AN EXTRAORDINARY WRIT UNDER THE ALL WRITS ACT.  (FN1)
ONLY LAST TERM, IN PARR V. UNITED STATES, 351 U.S. 513, THIS COURT
RESTATED THOSE BOUNDS: 

"THE POWER TO ISSUE THEM IS DISCRETIONARY AND IT IS SPARINGLY
EXERCISED  ...  .  THIS IS NOT A CASE WHERE A COURT HAS EXCEEDED OR
REFUSED TO EXERCISE ITS JURISDICTION, SEE ROCHE V. EVAPORATED MILK
ASSN., 319 U.S. 21, 26, NOR ONE WHERE APPELLATE REVIEW WILL BE DEFEATED
IF A WRIT DOES NOT ISSUE, CF. MARYLAND V. SOPER, 270 U.S. 9, 29-30. 
HERE THE MOST THAT COULD BE CLAIMED IS THAT THE DISTRICT COURTS HAVE
ERRED IN RULING ON MATTERS WITHIN THEIR JURISDICTION.  THE
EXTRAORDINARY WRITS DO NOT REACH TO SUCH CASES; THEY MAY NOT BE USED TO
THWART THE CONGRESSIONAL POLICY AGAINST PIECEMEAL APPEALS.  ROCHE V.
EVAPORATED MILK ASSN., SUPRA, AT P. 30."  351 U.S., AT 520.  (FN2) 

THE ACTION OF THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT HERE UNDER
REVIEW IS OUTSIDE THESE LIMITATIONS.  THE CASE BEFORE THE COURT OF
APPEALS WAS "NOT A CASE WHERE A COURT HAS EXCEEDED OR REFUSED TO
EXERICSE ITS JURISDICTION  ...  ."  RULE 53(B) OF THE FEDERAL RULES OF
CIVIL PROCEDURE VESTED JUDGE LA BUY WITH DISCRETIONARY POWER TO MAKE A
REFERENCE IF HE FOUND, AND HE DID, THAT "SOME EXCEPTIONAL CONDITION"
REQUIRED THE REFERENCE.  (FN3)  HERE ALSO "THE MOST THAT COULD BE
CLAIMED IS THAT THE DISTRICT COURT  ...  ERRED IN RULING ON MATTERS
WITHIN ITS JURISDICTION."  IF JUDGE LA BUY ERRED IN FINDING THAT THERE
WAS AN "EXCEPTIONAL CONDITION" REQUIRING THE REFERENCE OR DID NOT GIVE
PROPER WEIGHT TO THE CAVEAT OF THE RULE THAT A "REFERENCE TO A MASTER
SHALL BE THE EXCEPTION AND NOT THE RULE," THAT WAS MERE ERROR "IN
RULING ON MATTERS WITHIN THE DISTRICT COURT'S JURISDICTION."  SUCH MERE
ERROR DOES NOT BRING INTO PLAY THE POWER OF THE COURT OF APPEALS TO
ISSUE AN EXTRAORDINARY WRIT.  NOR DID JUDGE LA BUY'S ORDER OF REFERENCE
PRESENT THE COURT OF APPEALS WITH A CASE "WHERE APPELLATE REVIEW WILL
BE DEFEATED IF A WRIT DOES NOT ISSUE."  THE LITIGANTS MAY SUFFER ADDED
EXPENSE AND POSSIBLE DELAY IN OBTAINING A DECISION AS A CONSEQUENCE OF
THE REFERENCE, BUT ROCHE SETTLES THAT "THAT INCONVENIENCE IS ONE WHICH
WE MUST TAKE IT CONGRESS CONTEMPLATED IN PROVIDING THAT ONLY FINAL
JUDGMENTS SHOULD BE REVIEWABLE."  (FN4) 

BUT, REGRETTABLE AS IS THIS COURT'S APPROVAL OF WHAT I CONSIDER TO BE
A CLEAR DEPARTURE BY THE COURT OF APPEALS FROM THE SETTLED PRINCIPLES
GOVERNING THE ISSUANCE OF THE EXTRAORDINARY WRITS, WHAT THIS COURT SAYS
IN REACHING ITS RESULT IS REASON FOR PARTICULARLY GRAVE CONCERN.  I
THINK THIS COURT HAS TODAY SERIOUSLY UNDERMINED THE LONGSTANDING
STATUTORY POLICY AGAINST PIECEMEAL APPEALS.  MY BRETHREN SAY: "SINCE
THE COURT OF APPEALS COULD AT SOME STAGE OF THE ANTITRUST PROCEEDINGS
ENTERTAIN APPEALS IN THESE CASES, IT HAS POWER IN PROPER CIRCUMSTANCES,
AS HERE, TO ISSUE WRITS OF MANDAMUS REACHING THEM  ...  .  THIS IS NOT
TO SAY THAT THE CONCLUSION WE REACH ON THE FACTS OF THIS CASE IS
INTENDED, OR CAN BE USED, TO AUTHORIZE THE INDISCRIMINATE USE OF
PREROGATIVE WRITS AS A MEANS OF REVIEWING INTERLOCUTORY ORDERS."  I
UNDERSTAND THIS TO MEAN THAT PROPER CIRCUMSTANCES ARE PRESENT FOR THE
ISSUANCE OF A WRIT IN THIS CASE BECAUSE, IF THE LITIGANTS ARE NOT NOW
HEARD, THE COURT OF APPEALS WILL NOT HAVE AN OPPORTUNITY TO RELIEVE
THEM OF THE BURDEN OF THE ADDED EXPENSE AND DELAY OF DECISION ALLEGED
TO BE THE CONSEQUENCE OF THE REFERENCE.  BUT THAT BRIDGE WAS CROSSED BY
THIS COURT IN ROCHE AND ALKALI, WHERE THIS VERY ARGUMENT WAS REJECTED:
"HERE THE INCONVENIENCE TO THE LITIGANTS RESULTS ALONE FROM THE
CIRCUMSTANCE THAT CONGRESS HAS PROVIDED FOR REVIEW OF THE DISTRICT
COURT'S ORDER ONLY ON REVIEW OF THE FINAL JUDGMENT, AND NOT FROM AN
ABUSE OF JUDICIAL POWER, OR REFUSAL TO EXERCISE IT, WHICH IT IS THE
FUNCTION OF MANDAMUS TO CORRECT."  319 U.S., AT 31. 

WHAT THIS COURT IS SAYING, THEREFORE, IS THAT THE ALL WRITS ACT
CONFERS AN INDEPENDENT APPELLATE POWER IN THE COURTS OF APPEALS TO
REVIEW INTERLOCUTORY ORDERS.  I HAVE ALWAYS UNDERSTOOD THE LAW TO BE
PRECISELY TO THE CONTRARY.  THE POWER GRANTED TO THE COURTS OF APPEALS
BY THE ALL WRITS ACT IS NOT AN APPELLATE POWER BUT MERELY AN AUXILIARY
POWER IN AID OF AND TO PROTECT THE APPELLATE JURISDICTION CONFERRED BY
OTHER PROVISIONS OF LAW, E.G., THE POWER TO REVIEW FINAL DECISIONS
GRANTED BY 28 U.S.C. SEC. 1291, (FN5) AND TO REVIEW SPECIFIED
EXCEPTIONAL CLASSES OF INTERLOCUTORY ORDERS GRANTED BY 28 U.S.C. SEC.
1292.  (FN6)  THIS HOLDING THAT AN INDEPENDENT APPELLATE POWER IS GIVEN
BY THE ALL WRITS ACT NOT ONLY DISCARDS THE CONSTRAINTS UPON THE SCOPE
OF THE POWER TO ISSUE EXTRAORDINARY WRITS RESTATED IN PARR, BUT, BY THE
VERY FACT OF DOING SO, OPENS WIDE THE CRACK IN THE DOOR WHICH, SINCE
THE JUDICIARY ACT OF 1789, HAS SHUT OUT FROM INTERMEDIATE APPELLATE
REVIEW ALL INTERLOCUTORY ACTIONS OF THE DISTRICT COURTS NOT WITHIN THE
FEW EXCEPTIONAL CLASSES NOW SPECIFIED BY THE CONGRESS IN SEC. 1292. 

THE POWER OF THE COURTS OF APPEALS TO ISSUE EXTRAORDINARY WRITS STEMS
FROM SEC. 14 OF THE JUDICIARY ACT OF 1789.  (FN7)  CHIEF JUDGE
MAGRUDER, IN IN RE JOSEPHSON, 218 F.2D 174, PROVIDES US WITH AN
INVALUABLE HISTORY OF THIS POWER AND OF THE JUDICIAL DEVELOPMENT OF ITS
SCOPE.  HE DEMONSTRATES MOST PERSUASIVELY THAT "THE ALL WRITS SECTION
DOES NOT CONFER AN INDEPENDENT APPELLATE POWER; THE POWER IS STRICTLY
OF AN AUXILIARY NATURE, IN AID OF A JURISDICTION GRANTED IN SOME OTHER
PROVISION OF LAW, AS WAS SHARPLY POINTED OUT IN ROCHE V. EVAPORATED
MILK ASS'N, 1943, 319 U.S. 21, 29-31  ...  ."  218 F.2D, AT 180. 

THE FOCAL QUESTION POSED FOR A COURT OF APPEA-S BY A PETITION FOR THE
ISSUANCE OF A WRIT IS WHETHER THE ACTION OF THE DISTRICT COURT TENDS TO
FRUSTRATE OR IMPEDE THE ULTIMATE EXERCISE BY THE COURT OF APPEALS OF
ITS APPELLATE JURISDICTION GRANTED IN SOME OTHER PROVISION OF THE LAW. 
THE ANSWER IS CLEARLY IN THE AFFIRMATIVE WHERE, FOR EXAMPLE, THE ORDER
OF THE DISTRICT COURT TRANSFERS A CAUSE TO A DISTRICT COURT OF ANOTHER
CIRCUIT FOR DECISION.  THAT WAS JOSEPHSON, WHERE THE COURT OF APPEALS
FOR THE FIRST CIRCUIT HELD THAT AN ORDER OF A DISTRICT COURT IN THE
CIRCUIT TRANSFERRING A CASE TO THE DISTRICT COURT OF ANOTHER CIRCUIT
WAS WITHIN THE REACH OF THE COURT OF APPEALS' POWER UNDER THE ALL WRITS
ACT BECAUSE "THE EFFECT OF THE ORDER IS THAT THE DISTRICT JUDGE HAS
DECLINED TO PROCEED WITH THE DETERMINATION OF A CASE WHICH COULD
EVENTUALLY COME TO THIS COURT BY APPEAL FORM A 'FINAL DECISION'." 
(FN8)  218 F.2D, AT 181.  IN CONTRAST, A DISTRICT COURT ORDER DENYING A
TRANSFER WOULD NOT COME UNDER THE UMBRELLA OF POWER UNDER THE ALL WRITS
ACT, SINCE RETENTION OF THE CAUSE BY THE DISTRICT COURT CAN HARDLY
THWART OR TEND TO DEFEAT THE POWER OF THE COURT OF APPEALS TO REVIEW
THAT ORDER AFTER FINAL DECISION OF THE CASE.  THE DISTINCTION BETWEEN
THE GRANT AND DENIAL OF TRANSFER WAS RECOGNIZED IN CARR V. DONOHOE, 201
F.2D 426, WHERE THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT DENIED A
PETITION FOR WRIT OF MANDAMUS DIRECTED TO AN ORDER OF A DISTRICT COURT
TRANSFERRING THE CAUSE TO ANOTHER DISTRICT COURT WITHIN THE SAME
CIRCUIT.  THE COURT OF APPEALS PROPERLY NOTED THAT THE ORDER WAS MERELY
A NONAPPEALABLE INTERLOCUTORY ORDER IN NOWISE IMPAIRING ITS ACTUAL OR
POTENTIAL JURISDICTION TO REVIEW THAT AND ANY OTHER ACTION AFTER FINAL
DECISION, OBSERVING:  "IT SEEMS OBVIOUS THAT THE TRANSFER OF THE  ...
ACTION  ...  TO ANOTHER DISTRICT IN THE SAME CIRCUIT CANNOT IN ANY WAY
IMPAIR OR DEFEAT THE JURISDICTION OF THIS COURT TO REVIEW ANY
APPEALABLE ORDER OR JUDGMENT WHICH EVENTUALLY MAY BE ENTERED IN THE
CASE."  (FN9)  201 F.2D, AT 428-429.    THIS COURT'S RELIANCE UPON LOS
ANGELES BRUSH CORP. V. JAMES, 272 U.S. 701, AND MCCULLOUGH V. COSGRAVE,
309 U.S. 634, IS, IN MY OPINION, MISPLACED.  THOSE CASES INVOLVED THE
POWER, NOT OF THE COURTS OF APPEALS, BUT OF THIS COURT, TO ISSUE
EXTRAORDINARY WRITS.  IN JOSEPHSON, CHIEF JUDGE MAGRUDER TOOK PAINS TO
EMPHASIZE THE "CAUTION THAT DECISIONS OF THE SUPREME COURT OF THE
UNITED STATES, AT LEAST PRIOR TO 1948, SUPPORTING THE ISSUANCE, BY THAT
COURT, OF A WRIT OF MANDAMUS DIRECTED TO A LOWER FEDERAL COURT, MAY NOT
SAFELY BE RELIED UPON BY AN INTERMEDIATE COURT OF APPEALS AS AUTHORITY
FOR THE ISSUANCE BY THE LATTER COURT OF A WRIT OF MANDAMUS DIRECTED TO
A DISTRICT COURT WITHIN THE CIRCUIT.  THE REASON IS THAT THE SUPREME
COURT MIGHT HAVE BEEN EXERCISING A DIFFERENT SORT OF POWER FROM THE
STRICTLY AUXILIARY POWER GIVEN TO US UNDER THE ALL WRITS SECTION."  218
F.2D, AT 179.  THIS "DIFFERENT SORT OF POWER" DERIVED FROM SEC. 13 OF
THE JUDICIARY ACT OF 1789, GRANTING THE SUPREME COURT POWER TO ISSUE
WRITS OF MANDAMUS "IN CASES WARRANTED BY THE PRINCIPLES AND USAGES OF
LAW."  (FN10)  THIS PROVISION, UNLIKE THE ALL WRITS ACT, WAS NOT
RESTRICTED IN ITS USE TO AIDING THE JURISDICTION OF THE APPELLATE
COURT, AND THEREFORE MIGHT BE DEEMED TO HAVE GRANTED A BROADER POWER TO
THIS COURT THAN THAT CONFERRED ON THE COURTS OF APPEALS BY THE LATTER
STATUTE. 

FURTHERMORE, LOS ANGELES BRUSH CORP. WAS A CASE WHERE A REFERENCE WAS
MADE, NOT BECAUSE A DISTRICT JUDGE DECIDED THAT THE PARTICULAR
CIRCUMSTANCES OF THE PARTICULAR CASE REQUIRED A REFERENCE, BUT PURSUANT
TO AN AGREEMENT AMONG ALL THE JUDGES OF THAT DISTRICT COURT ALWAYS TO
APPOINT MASTERS TO HEAR PATENT CASES REGARDLESS OF THE CIRCUMSTANCES OF
PARTICULAR CASES.  THE MCCULLOUGH SITUATION WAS MUCH THE SAME.  AS THAT
CASE WAS DELIMITED IN ROCHE, THIS COURT WAS THERE CONFRONTED BY A CASE
OF "THE PERSISTENT DISREGARD OF THE RULES OF CIVIL PROCEDURE PRESCRIBED
BY THIS COURT."  319 U.S., AT 31. 

THE KEY TO BOTH LOS ANGELES BURSH CORP. AND MCCULLOUGH IS FOUND IN
THE LANGUAGE IN THE FORMER IN 272 U.S., AT 706: 

"  ...  WE THINK IT CLEAR THAT WHERE THE SUBJECT CONCERNS THE
ENFORCEMENT OF THE EQUITY RULES WHICH BY LAW IT IS THE DUTY OF THIS
COURT TO FORMULATE AND PUT IN FORCE, AND IN A CASE IN WHICH THIS COURT
HAS THE ULTIMATE DISCRETION TO REVIEW THE CASE ON ITS MERITS, IT MAY
USE ITS POWER OF MANDAMUS AND DEAL DIRECTLY WITH THE DISTRICT COURT IN
REQUIRING IT TO CONFORM TO THEM." 

IN OTHER WORDS, NEITHER OF THOSE CASES CAN BE ACCEPTED AS SUPPORTING
WHAT THE COURT OF APPEALS UNDERTOOK TO DO HERE, BOTH BECAUSE OF THE
ABSENCE IN OLD SEC. 234 OF THE "IN AID OF" JURISDICTION LIMITATION NOW
CONTAINED IN SEC. 1651, AND OF ANYTHING APPROACHING A WHOLESALE
DISREGARD OF THE RULES PRESCRIBED BY THIS COURT, SUCH AS WAS INVOLVED
THERE.  I SUBSCRIBE FULLY TO CHIEF JUDGE MAGRUDER'S CONCLUSION IN
JOSEPHSON: 

"CONTRARY TO THE VIEW WHICH SEEMS TO HAVE BEEN OCCASIONALLY TAKEN, OR
AT LEAST SUB SILENTIO ASSUMED, IN OTHER COURTS OF APPEALS, WE DO NOT
THINK THAT 28 U.S.C. SEC. 1651 (THE ALL WRITS ACT) GRANTS US A GENERAL
ROVING COMMISSION TO SUPERVISE THE ADMINISTRATION OF JUSTICE IN THE
FEDERAL DISTRICT COURTS WITHIN OUR CIRCUIT, AND IN PARTICULAR TO REVIEW
BY A WRIT OF MANDAMUS ANY UNAPPEALABLE ORDER WHICH WE BELIEVE SHOULD BE
IMMEDIATELY REVIEWABLE IN THE INTEREST OF JUSTICE."  218 F.2D, AT 177. 

THE VIEW NOW TAKEN BY THIS COURT THAT THE ALL WRITS ACT CONFERS AN
INDEPENDENT APPELLATE POWER, ALTHOUGH NOT SO BROAD AS "TO AUTHORIZE THE
INDISCRIMINATE USE OF PREROGATIVE WRITS AS A MEANS OF REVIEWING
INTERLOCUTORY ORDERS," IN EFFECT ENGRAFTS UPON FEDERAL APPELLATE
PROCEDURE A STANDARD OF INTERLOCUTORY REVIEW NEVER EMBRACED BY THE
CONGRESS THROUGHOUT OUR HISTORY, ALTHOUGH IT IS WRITTEN INTO THE
ENGLISH JUDICATURE ACT (FN11) AND IS FOLLOWED IN VARYING DEGREES IN
SOME OF THE STATES.  (FN12)  THAT STANDARD ALLOWS INTERLOCUTORY APPEALS
BY LEAVE OF THE APPELLATE COURT.  IT IS A COMPROMISE BETWEEN
CONFLICTING VIEWPOINTS AS TO THE EXTENT THAT INTERLOCUTORY APPEALS
SHOULD BE ALLOWED.  (FN13)  THE FEDERAL POLICY OF LIMITED INTERLOCUTORY
REVIEW STRESSES THE INCONVENIENCE AND EXPENSE OF PIECEMEAL REVIEWS AND
THE STRONG PUBLIC INTEREST IN FAVOR OF A SINGLE AND COMPLETE TRIAL WITH
A SINGLE AND COMPLETE REVIEW.  THE OTHER VIEW, OF WHICH THE NEW YORK
PRACTICE OF ALLOWING INTERLOCUTORY REVIEW AS OF RIGHT FROM MOST ORDERS
IS THE EXTREME EXAMPLE, PERCEIVES DANGER OF POSSIBLE INJUSTICE IN
INDIVIDUAL CASES FROM THE DENIAL OF ANY APPELLATE REVIEW UNTIL AFTER
JUDGMENT AT THE TRIAL.  (FN14) 

THE POLESTAR OF FEDERAL APPELLATE PROCEDURE HAS ALWAYS BEEN
"FINALITY," MEANING THAT APPELLATE REVIEW OF MOST INTERLOCUTORY ACTIONS
MUST AWAIT FINAL DETERMINATION OF THE CAUSE AT THE TRIAL LEVEL. 
"FINALITY AS A CONDITION OF REVIEW IS AN HISTORIC CHARACTERISTIC OF
FEDERAL APPELLATE PROCEDURE.  IT WAS WRITTEN INTO THE FIRST JUDICIARY
ACT AND HAS BEEN DEPARTED FROM ONLY WHEN OBSERVANCE OF IT WOULD
PRACTICALLY DEFEAT THE RIGHT TO ANY REVIEW AT ALL."  COBBLEDICK V.
UNITED STATES, 309 U.S. 323, 324-325.  THE COURT'S ACTION TODAY
SHATTERS THAT STATUTORY POLICY.  I PROTEST, NOT ONLY BECAUSE WE INVADE
A DOMAIN RESERVED BY THE CONSTITUTION EXCLUSIVELY TO THE CONGRESS,
(FN15) BUT AS WELL BECAUSE THE ENCOURAGEMENT TO INTERLOCUTORY APPEALS
OFFERED BY THIS DECISION MUST NECESSARILY AGGRAVATE FURTHER THE ALREADY
BAD CONDITION OF CALENDAR CONGESTION IN SOME OF OUR DISTRICT COURTS AND
ALSO ADD TO THE BURDEN OF WORK OF SOME OF OUR BUSIEST COURTS OF
APPEALS.  MORE PETITIONS FOR INTERLOCUTORY REVIEW, REQUIRING THE
ATTENTION OF THE COURTS OF APPEALS, ADD, OF COURSE, TO THE BURDEN OF
WORK OF THOSE COURTS.  MEANWHILE FINAL DECISION OF THE CASES CONCERNED
IS DELAYED WHILE THE DISTRICT COURTS MARK TIME AWAITING ACTION UPON THE
PETITIONS.  RARELY DOES DETERMINATION UPON INTERLOCUTORY REVIEW
TERMINATE THE LITIGATION.  MOREOVER, THE DISTRICT COURT CALENDARS
BECOME LONGER WITH THE ADDITION OF NEW CASES BEFORE OLDER ONES ARE
DECIDED.  THIS, THEN, INTERPOSES ONE MORE OBSTACLE TO THE STRONG EFFORT
BEING MADE TO BETTER JUSTICE THROUGH IMPROVED JUDICIAL ADMINISTRATION. 
(FN16) 

THE POWER OF THE COURT OF APPEALS TO CORRECT ANY ERROR IN JUDGE LA
BUY'S REFERENCE IS FOUND EXCLUSIVELY IN THE POWER TO REVIEW FINAL
DECISIONS UNDER SEC. 1291.  THE COURT OF APPEALS ERRED BY ASSUMING A
NONEXISTENT POWER UNDER THE ALL WRITS ACT TO REVIEW THIS INTERLOCUTORY
ORDER IN ADVANCE OF FINAL DECISION.  INSOFAR AS THE COURT APPROVES THIS
ERROR, I MUST RESPECTFULLY DISSENT. 

FN1  "(A)  THE SUPREME COURT AND ALL COURTS ESTABLISHED BY ACT OF
CONGRESS MAY ISSUE ALL WRITS NECESSARY OR APPROPRIATE IN AID OF THEIR
RESPECTIVE JURISDICTIONS AND AGREEABLE TO THE USAGES AND PRINCIPLES OF
LAW."  28 U.S.C. SEC. 1651(A). 

FN2  CF. BANKERS LIFE & CAS. CO. V. HOLLAND, 346 U.S. 379; EX PARTE
FAHEY, 332 U.S. 258. 

FN3  IT SHOULD BE NOTED THAT THE OBJECTION TO REFERENCES STATED BY
CHIEF JUSTICE VANDERBILT, AS QUOTED IN FOOTNOTE 5 OF THE MAJORITY
OPINION, IS REFLECTED IN NEW JERSEY REVISED RULES 4:54-1, WHICH
PROVIDES AS FOLLOWS:  "NO REFERENCE FOR THE HEARING OF A MATTER SHALL
BE MADE TO A MASTER, EXCEPT UNDER EXTRAORDINARY CIRCUMSTANCES, UPON
APPROVAL OF THE CHIEF JUSTICE, OR FOR THE TAKING OF A DEPOSITION, OR AS
TO MATTERS HEARD BY A STANDING MASTER APPOINTED BY THE SUPREME COURT." 
IF THE FEDERAL RULE REQUIRED A LIKE CONSENT BY A CHIEF JUDGE, A
REFERENCE WITHOUT SUCH CONSENT WOULD BE OUTSIDE THE JURISDICTION OF THE
DISTRICT COURT, AND, THEREFORE, SUBJECT TO CORRECTION BY WRIT OF
MANDAMUS.  THE VITAL DISTINCTION IS THAT THE FEDERAL RULE AS PRESENTLY
FRAMED VESTS DISCRETION IN THE DISTRICT COURTS. 

FN4  319 U.S., AT 30.  CF. UNITED STATES ALKALI EXPORT ASSN. V.
UNITED STATES, 325 U.S. 196, 202-203. 

FN5  "THE COURTS OF APPEALS SHALL HAVE JURISDICTION OF APPEALS FROM
ALL FINAL DECISIONS OF THE DISTRICT COURTS OF THE UNITED STATES,  ...
EXCEPT WHERE A DIRECT REVIEW MAY BE HAD IN THE SUPREME COURT."  28
U.S.C. SEC. 1291. 

FN6  SECTION 1292, IN SUBSTANCE, CONFERS UPON THE COURTS OF APPEALS
JURISDICTION OF APPEALS FROM INTERLOCUTORY ORDERS OF THE DISTRICT
COURTS RELATING TO INJUNCTIONS, RECEIVERSHIP, AND CERTAIN ADMIRALTY AND
PATENT INFRINGEMENT CASES. 

FN7  1 STAT. 81, SUBSTANTIALLY RE-ENACTED IN SEC. 262 OF THE JUDICIAL
CODE OF 1911, 36 STAT. 1162. 

FN8  ACCORD, WIREN V. LAWS, 90 U.S. APP. D.C. 105, 194 F.2D 873; GULF
RESEARCH & DEVELOPMENT CO. V. HARRISON, 185 F.2D 457. 

FN9  IN THE JOSEPHSON CASE, CHIEF JUDGE MAGRUDER SAID MUCH THE SAME
THING: 

"IF THE DISTRICT JUDGE HAD HELD ON TO THE CASE, I.E., HAD DENIED THE
MOTION FOR TRANSFER, SUCH ACTION WOULD HAVE PRESERVED, NOT FRUSTRATED,
ANY POTENTIAL APPELLATE JURISDICTION WHICH WE MIGHT HAVE HAD; AND WE
ARE AT A LOSS TO UNDERSTAND HOW WE COULD PROPERLY REVIEW ON MANDAMUS AN
ORDER DENYING A TRANSFER, ON THE PRETENSE THAT SUCH A REVIEW WOULD BE
IN 'AID' OF OUR APPELLATE JURISDICTION."  218 F.2D, AT 181. 

FN10  1 STAT. 80, 81, SUBSTANTIALLY RE-ENACTED IN SEC. 234 OF THE
JUDICIAL CODE OF 1911, 36 STAT. 1156. 

FN11  JUDICATURE ACT, 1925, 15 & 16 GEO. 5, C. 49, SEC. 31(1)(I). 

FN12  E.G., MISS.  CODE ANN., 1942, SEC. 1148; N.J. REV. RULES 2:2
3. 

FN13  SEE, E.G., THE DISCUSSION BY MR. JUSTICE JACOBS IN APPEAL OF
PENNSYLVANIA R. CO., 20 N.J. 398, 120 A.2D 94; CRICK, THE FINAL
JUDGMENT AS A BASIS FOR APPEAL, 41 YALE L.J.  539; NOTE, 50 COL. L.
REV. 1102; NOTE, 58 YALE L.J. 1186; REPORT, SPECIAL MEETING OF JUDICIAL
CONFERENCE OF THE UNITED STATES, P. 7 (MARCH 20-21, 1952); REPORT,
REGULAR ANNUAL MEETING OF JUDICIAL CONFERENCE OF THE UNITED STATES, P.
27 (1953). 

FN14  N.Y. CIV. PRAC.  ACT, SEC. 609. 

FN15  U.S. CONST., ART. III, SEC. 1. 

FN16  THE SERIOUSNESS OF THE PROBLEM OF CALENDAR CONGESTION IN BOTH
FEDERAL AND STATE COURTS PROMPTED THE ATTORNEY GENERAL OF THE UNITED
STATES, IN MAY 1956, TO CALL A CONFERENCE ON COURT CONGESTION AND
DELAY.  THIS CONFERENCE RESULTED IN THE APPOINTMENT OF A DISTINGUISHED
COMMITTEE TO FORMULATE A FRONTAL ATTACK UPON THE PROBLEM.  ROGERS,
TOWARDS ELIMINATING DELAYED JUSTICE, AN ADDRESS PREPARED FOR DELIVERY
BEFORE THE MID-ATLANTIC REGIONAL MEETING OF THE AMERICAN BAR
ASSOCIATION, OCTOBER 11, 1956. 
..END :





SORIANO V. UNITED STATES 352 U.S. 270 


NO. 49.  ARGUED DECEMBER 5, 1956 - DECIDED JANUARY 14, 1957 - 133 CT.
CL. 971, AFFIRMED ON OTHER GROUNDS. 


PETITIONER, A RESIDENT OF THE PHILIPPINES, SUED IN THE COURT OF CLAIMS
TO RECOVER JUST COMPENSATION FOR THE REQUISITIONING BY PHILIPPINE
GUERRILLA FORCES OF CERTAIN EQUIPMENT AND SUPPLIES DURING THE JAPANESE
OCCUPATION OF THE PHILIPPINE ISLANDS.  THE SUIT WAS FILED MORE THAN SIX
YEARS AFTER THE LAST ALLEGED REQUISITION.  HELD:  THE SUIT WAS BARRED
BY THE SIX-YEAR STATUTE OF LIMITATIONS.  PP. 270-277. 

(A)  THE PERIOD OF LIMITATION APPLICABLE TO PETITIONER'S CASE IN THE
COURT OF CLAIMS WAS NOT AFFECTED BY HIS HAVING FILED A CLAIM WITH THE
ARMY CLAIMS SERVICE.  PP. 273-275. 

(B)  THE EXISTENCE OF HOSTILITIES DURING THE JAPANESE OCCUPATION OF
THE PHILIPPINES DID NOT TOLL THE STATUTE OF LIMITATIONS IN PETITIONER'S
CASE.  HANGER V. ABBOTT, 6 WALL.  532, DISTINGUISHED.  PP. 275-276. 

(C)  LIMITATIONS AND CONDITIONS UPON WHICH THE GOVERNMENT CONSENTS TO
BE SUED MUST BE STRICTLY OBSERVED AND EXCEPTIONS THERETO ARE NOT TO BE
IMPLIED.  P. 276. 

(D)  PETITIONER'S SUIT WAS NOT FILED WITHIN THREE YEARS AFTER THE
CESSATION OF HOSTILITIES, AND WOULD BE BARRED EVEN IF THE THREE-YEAR
LIMITATION OF THE STATUTE WERE APPLICABLE.  PP. 276-277. 

SORIANO V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS FILED IN THE COURT OF CLAIMS BY PETITIONER, A RESIDENT
OF THE PHILIPPINES, TO RECOVER JUST COMPENSATION FOR THE REQUISITIONING
BY PHILIPPINE GUERRILLA FORCES OF CERTAIN FOODSTUFFS, SUPPLIES,
EQUIPMENT, AND MERCHANDISE DURING THE JAPANESE OCCUPATION OF THE
PHILIPPINE ISLANDS.  WHILE DECISION ON THE MERITS WOULD REQUIRE A
DETERMINATION OF THE STATUS OF PHILIPPINE GUERRILLAS AS A UNIT
OPERATING IN THE SERVICE OF THE UNITED STATES, WE DO NOT REACH THAT
QUESTION.  WE HAVE DETERMINED THAT THE COURT OF CLAIMS LACKS
JURISDICTION BECAUSE THE CLAIM WAS NOT FILED WITHIN THE PERIOD PROVIDED
BY THE STATUTE, 62 STAT. 976, 28 U.S.C. SEC. 2501.  (FN1) 

ON JULY 26, 1941, PURSUANT TO THE PHILIPPINE INDEPENDENCE ACT, (FN2)
PRESIDENT ROOSEVELT ORDERED THE PHILIPPINE ARMY INTO THE SERVICE OF THE
ARMED FORCES OF THE UNITED STATES.  (FN3)  AFTER THE FALL OF BATAAN AND
CORREGIDOR IN 1942, ELEMENTS OF THIS PHILIPPINE ARMY FLED TO THE HILLS
AND CONTINUED MILITARY RESISTANCE AGAINST THE JAPANESE AS GUERRILLA
UNITS.  THESE UNITS, FROM TIME TO TIME, REQUISITIONED AND COMMANDEERED
SUPPLIES FROM PHILIPPINE CIVILIANS.  PETITIONER CONTENDS THAT THESE
UNITS WERE PART OF THE UNITED STATES ARMY HAVING IMPLIED AUTHORITY TO
BIND THE UNITED STATES TO PAY FOR SUCH SUPPLIES.  HE ALLEGES THAT FROM
SEPTEMBER 1942 UNTIL THE LAST REQUISITION IN JANUARY 1945 HE DELIVERED
SUPPLIES TO THESE GUERRILLA UNITS OF THE VALUE OF $119,765.75.  HE
FILED A CLAIM FOR THIS AMOUNT WITH THE UNITED STATES ARMY CLAIMS
SERVICE ON MARCH 30, 1948.  THIS CLAIM WAS DENIED ON JUNE 21, 1948. 

THEREAFTER ON APRIL 26, 1951, MORE THAN SIX YEARS AFTER THE LAST
ALLEGED REQUISITION, THIS ACTION WAS FILED IN THE UNITED STATES COURT
OF CLAIMS.  THE GOVERNMENT MOVED TO DISMISS ON SEVERAL GROUNDS,
INCLUDING (1) THAT THE STATUTORY LIMITATION PERIOD HAD RUN, AND (2)
THAT THE UNITS WERE PART OF THE PHILIPPINE FORCES FOR WHICH THE UNITED
STATES WAS IN NO MANNER RESPONSIBLE.  IN A PER CURIAM ORDER, 133 CT.
CL. 971, AFTER ISSUE WAS DRAWN ON THE PLEADINGS, THE COURT OF CLAIMS
DISMISSED THE SUIT ON THE AUTHORITY OF LOGRONIO V. UNITED STATES, 132
CT. CL. 596, 133 F. SUPP. 395 (1955).  IN EFFECT, THIS REAFFIRMED ITS
EARLIER HOLDINGS THAT MEMBERS OF THE GUERRILLA UNITS OF THE PHILIPPINE
ARMY WERE NOT PART OF THE ARMY OF THE UNITED STATES.  (FN4)  THE
LIMITATION QUESTION WAS NOT PASSED UPON. 

WE GRANTED CERTIORARI, 351 U.S. 917, TO DETERMINE THE VALIDITY OF THE
CLAIMS OF THE PETITIONER AND OTHERS IN LIKE POSITION.  AFTER ISSUANCE
OF THE WRIT IN THIS CASE, THE COURT OF CLAIMS IN COMPANIA MARITIMA V.
UNITED STATES, 136 CT. CL. - , 145 F. SUPP. 935 (1956), HELD THAT A
PHILIPPINE RESIDENT SEEKING REDRESS AGAINST THE UNITED STATES WAS UNDER
A LEGAL DISABILITY WHILE HOSTILITIES BETWEEN JAPAN AND THE UNITED
STATES CONTINUED.  THE COURT FURTHER HELD THAT THE CLAIM OF SUCH A
PERSON MUST BE FILED WITHIN THREE YEARS "AFTER THE DISABILITY CEASES,"
I.E., BY SEPTEMBER 2, 1948.  APPREHENSIVE THAT THIS RULE MIGHT BE
APPLIED TO HIS CASE, PETITIONER REQUESTED AND WE GRANTED PERMISSION TO
ARGUE THE LIMITATION QUESTION WHICH, AS WE HAVE SAID, HAD BEEN RAISED
BUT NOT CONSIDERED AT THE TIME OF THE DISMISSAL BY THE COURT OF
CLAIMS. 

PETITIONER URGES THAT HIS SUIT WAS TIMELY FILED BECAUSE HE WAS FIRST
REQUIRED TO PRESENT HIS CLAIM TO THE ARMY CLAIMS SERVICE BEFORE HE
COULD PROSECUTE THE ACTION IN THE COURT OF CLAIMS.  THIS ADMINISTRATIVE
PROCEDURE, HE POINTS OUT, WAS NOT EXHAUSTED UNTIL JUNE 21, 1948, AND
THIS SUIT WAS FILED ON APRIL 26, 1951, LESS THAN THREE YEARS
THEREAFTER.  BUT, IF HE SHOULD FAIL WITH THIS CONTENTION, HE ARGUES
THAT THE WAR SUSPENDED THE RUNNING OF THE STATUTE AND IT WAS,
THEREFORE, TOLLED UNTIL SEPTEMBER 2, 1945, WHEN HOSTILITIES CEASED WITH
JAPAN.  WE CANNOT AGREE WITH EITHER CONTENTION. 

IT HAS BEEN SETTLED SINCE KENDALL V. UNITED STATES, 107 U.S. 123
(1883), THAT THE CONGRESS IN CREATING THE COURT OF CLAIMS RESTRICTED
THAT COURT'S JURISDICTION.  IN KENDALL THIS COURT HELD THAT THE
CONGRESS IN THE ACT CREATING THE COURT OF CLAIMS GAVE THE GOVERNMENT'S
CONSENT TO BE SUED THEREIN ONLY IN CERTAIN CLASSES OF CLAIMS AND THAT
NO OTHERS MIGHT BE ASSERTED AGAINST IT, INCLUDING "CLAIMS WHICH ARE
DECLARED BARRED IF NOT ASSERTED WITHIN THE TIME LIMITED BY THE
STATUTE."  ID., AT 125.  AS TO THE LATTER CASES, JURISDICTION WAS GIVEN
ONLY OVER THOSE FILED "WITHIN SIX YEARS AFTER SUCH CLAIM FIRST
ACCRUES," UNLESS THE CLAIMANT WAS "UNDER LEGAL DISABILITY OR BEYOND THE
SEAS AT THE TIME THE CLAIM ACCRUES," IN WHICH EVENT SUIT MUST "BE FILED
WITHIN THREE YEARS AFTER THE DISABILITY CEASES."  62 STAT. 976, 28
U.S.C. SEC. 2501.  AS WAS SAID IN KENDALL, SUPRA, "THE COURT CANNOT
SUPERADD TO THOSE ENUMERATED  ...  ," IT HAVING "NO MORE AUTHORITY TO
ENGRAFT ANOTHER DISABILITY UPON THE STATUTE THAN A DISABILITY ARISING
FROM SICKNESS, SURPRISE, OR INEVITABLE ACCIDENT, WHICH MIGHT PREVENT A
CLAIMANT FROM SUING WITHIN THE TIME PRESCRIBED."  ID., AT 125. 

PETITIONER ASSERTS THAT HIS ACTION DID NOT ACCRUE UNTIL THE DENIAL OF
THE CLAIM BY THE ARMY CLAIMS SERVICE.  AT THE SAME TIME, HE ADMITS THAT
THE CLAIM FILED THERE WAS BASED ON THE ALLEGED DELIVERY OF SUPPLIES,
ETC., ON THE PROMISE OF FUTURE PAYMENT.  THE CLAIM, IF ALLOWED, WAS
AGAINST THE PHILIPPINE GOVERNMENT, NOT THE UNITED STATES.  (FN5)  THE
CLAIM ASSERTED IN THIS PROCEEDING, ON THE CONTRARY, IS AGAINST THE
UNITED STATES AND BASED ON THE ALLEGED TAKING OF PROPERTY WITHOUT JUST
COMPENSATION IN VIOLATION OF THE FIFTH AMENDMENT.  PETITIONER WOULD
HAVE US HOLD THAT THIS JUST COMPENSATION CASE COULD NOT BE FILED UNTIL
AFTER AN ADMINISTRATIVE DENIAL OF HIS CLAIM FILED WITH THE ARMY CLAIMS
SERVICE.  BUT, EVEN IF THE CLAIMS WERE LAID ON THE SAME THEORY AND EACH
WAS DIRECTED AGAINST THE UNITED STATES, CONGRESS HAS MADE NO SUCH
REQUIREMENT.  IT HAS NOT SO RESTRICTED THE JURISDICTION OF THE COURT OF
CLAIMS.  (FN6)  UNDER THE CIRCUMSTANCES, FOR US TO SAY THAT THE
EXHAUSTION OF ADMINISTRATIVE REMEDIES IN SUCH CASE IS A PREREQUISITE TO
THE JURISDICTION OF THE COURT OF CLAIMS WOULD BUT "ENGRAFT ANOTHER
DISABILITY UPON THE STATUTE" AND THUS FRUSTRATE THE PURPOSE OF
CONGRESS.  FURTHERMORE, IT WOULD BE A LIMITLESS EXTENSION OF THE PERIOD
OF LIMITATION THAT CONGRESS EXPRESSLY PROVIDED FOR THE PROSECUTION OF
CLAIMS AGAINST THE GOVERNMENT IN THE COURT OF CLAIMS.  THIS WE CANNOT
DO. 

WE NOW REACH PETITIONER'S SECOND CONTENTION.  THE CAUSE OF ACTION AS
ALLEGED BY PETITIONER WAS FOR JUST COMPENSATION FOR SUPPLIES, ETC.,
TAKEN FROM HIM BY GUERRILLAS DURING THE JAPANESE OCCUPATION OF THE
PHILIPPINES.  HE ALLEGES IN HIS COMPLAINT THAT THE ACTION, IF ANY HE
HAS, ACCRUED AT THE TIME OF THE TAKING AND COULD ONLY BE MAINTAINED
WITHIN SIX YEARS THEREAFTER BUT FOR THE EXISTENCE OF THE HOSTILITIES
WHICH HE CLAIMS TOLLED THE STATUTE.  HE DEPENDS ON HANGER V. ABBOTT, 6
WALL.  532 (1868), TO SUPPORT THIS POSITION.  SUCH RELIANCE IS
MISPLACED.  THAT CASE INVOLVED PRIVATE CITIZENS, NOT THE GOVERNMENT. 
IT HAS NO APPLICABILITY TO CLAIMS AGAINST THE SOVEREIGN.  SEE HAYCRAFT
V. UNITED STATES, 22 WALL.  81 (1875). 

TO PERMIT THE APPLICATION OF THE DOCTRINE URGED BY PETITIONER WOULD
IMPOSE THE TOLLING OF THE STATUTE IN EVERY TIME-LIMIT-CONSENT ACT
PASSED BY THE CONGRESS.  FOR EXAMPLE, STATUTES PERMITTING SUITS FOR TAX
REFUNDS, TORT ACTIONS, ALIEN PROPERTY LITIGATION, PATENT CASES, AND
OTHER CLAIMS AGAINST THE GOVERNMENT WOULD ALL BE AFFECTED.  STRANGELY
ENOUGH, CONGRESS WOULD BE REQUIRED TO PROVIDE EXPRESSLY IN EACH STATUTE
THAT THE PERIOD OF LIMITATION WAS NOT TO BE EXTENDED BY WAR.  BUT
CONGRESS WAS ENTITLED TO ASSUME THAT THE LIMITATION PERIOD IT
PRESCRIBED MEANT JUST THAT PERIOD AND NO MORE.  WITH THIS INTENT IN
MIND, CONGRESS HAS PASSED SPECIFIC LEGISLATION EACH TIME IT HAS SEEN
FIT TO TOLL SUCH STATUTES OF LIMITATIONS BECAUSE OF WAR.  (FN7)  AND
THIS COURT HAS LONG DECIDED THAT LIMITATIONS AND CONDITIONS UPON WHICH
THE GOVERNMENT CONSENTS TO BE SUED MUST BE STRICTLY OBSERVED AND
EXCEPTIONS THERETO ARE NOT TO BE IMPLIED.  UNITED STATES V. SHERWOOD,
312 U.S. 584, 590-591 (1941), AND CASES THERE CITED.  FURTHERMORE, EVEN
IF HOSTILITIES PREVENTED PETITIONER FROM FILING HIS CLAIM AND THIS
CONDITION COULD BE REGARDED AS CREATING A "DISABILITY," THE CLAIM WOULD
NONETHELESS BE BARRED BY THE EXPRESS TERMS OF THIS STATUTE BECAUSE NOT
FILED WITHIN THREE YEARS AFTER THE CESSATION OF HOSTILITIES, TO WIT,
BEFORE SEPTEMBER 2, 1948.  LIKEWISE, IF PETITIONER CLAIMED SUCH A
DISABILITY UNDER THE TRADING WITH THE ENEMY ACT, (FN8) HE WOULD NOT
BETTER HIS POSITION, FOR TIMELY ACTION WAS NECESSARY BY THE SAME DATE. 
THE SAME IS TRUE OF ANY CLAIM UNDER THE DISABILITY SPECIFICALLY
PROVIDED FOR "PERSONS BEYOND THE SEAS," (FN9) EVEN IF THIS PROVISION
WERE APPLICABLE TO PETITIONER.  SUCH APPLICABILITY HAS NOT BEEN URGED
AND WE DO NOT PASS UPON IT. 

WE ARE NOT UNMINDFUL THAT THE ENFORCEMENT OF THIS RULE MIGHT RESULT
IN HARDSHIP IN SOME CASES, AND PERHAPS FRUSTRATE THE EXPECTATIONS OF
SOME PHILIPPINE CITIZENS WHO IN GOOD FAITH SUPPLIED RECOGNIZED
GUERRILLA UNITS.  SUCH CONSIDERATIONS ARE NOT FOR US, AS THIS COURT CAN
ENFORCE RELIEF AGAINST THE SOVEREIGN ONLY WITHIN THE LIMITS ESTABLISHED
BY CONGRESS.  PETITIONER HERE HAD SIX YEARS WITHIN WHICH TO ACT.  HE
FILED NO CLAIM WHATEVER UNTIL AFTER THE EXPIRATION OF THREE YEARS FROM
THE DATE HE ALLEGES THE LAST TAKING OCCURRED.  THIS CLAIM WAS FILED
WITH THE ARMY CLAIMS SERVICE ON THE BASIS OF AN ALLEGED CONTRACT.  THAT
CLAIM WAS DENIED WITHIN LESS THAN THREE MONTHS AFTER IT WAS FILED. 
THIS LEFT PETITIONER OVER TWO AND A HALF YEARS ADDITIONAL TIME TO
PURSUE HIS JUST COMPENSATION REMEDY.  STILL HE DID NOTHING FOR ALMOST
THREE YEARS, WHEN HE FILED THIS SUIT IN THE COURT OF CLAIMS.  BY THAT
TIME HIS CLAIM, ON ANY THEORY, WAS BARRED BY STATUTE.  THE JUDGMENT IS
THEREFORE AFFIRMED. 

FN1  62 STAT. 976, 28 U.S.C. SEC. 2501, THE PERTINENT PART OF WHICH
READS: 

"EVERY CLAIM OF WHICH THE COURT OF CLAIMS HAS JURISDICTION SHALL BE
BARRED UNLESS THE PETITION THEREON IS FILED, OR THE CLAIM IS REFERRED
BY THE SENATE OR HOUSE OF REPRESENTATIVES, OR BY THE HEAD OF AN
EXECUTIVE DEPARTMENT WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES. 

     *         *         *       *         * 

"A PETITION ON THE CLAIM OF A PERSON UNDER LEGAL DISABILITY OR BEYOND
THE SEAS AT THE TIME THE CLAIM ACCRUES MAY BE FILED WITHIN THREE YEARS
AFTER THE DISABILITY CEASES." 

FN2  THE PHILIPPINE INDEPENDENCE ACT OF MARCH 24, 1934, 48 STAT. 456
ET SEQ., PROVIDES IN PERTINENT PART: 

"(12)  THE PHILIPPINE ISLANDS RECOGNIZES THE RIGHT OF THE UNITED
STATES TO EXPROPRIATE PROPERTY FOR PUBLIC USES, TO MAINTAIN MILITARY
AND OTHER RESERVATIONS AND ARMED FORCES IN THE PHILIPPINES, AND, UPON
ORDER OF THE PRESIDENT, TO CALL INTO THE SERVICE OF SUCH ARMED FORCES
ALL MILITARY FORCES ORGANIZED BY THE PHILIPPINE GOVERNMENT."  ID., AT
457. 

FN3  MILITARY ORDER OF PRESIDENT ROOSEVELT, DATED JULY 26, 1941, 6
FED. REG. 3825, WHICH PROVIDES IN PERTINENT PART: 

"  ...  I HEREBY CALL AND ORDER INTO THE SERVICE OF THE ARMED FORCES
OF THE UNITED STATES FOR THE PERIOD OF THE EXISTING EMERGENCY, AND
PLACE UNDER THE COMMAND OF A GENERAL OFFICER, UNITED STATES ARMY, TO BE
DESIGNATED BY THE SECRETARY OF WAR FROM TIME TO TIME, ALL OF THE
ORGANIZED MILITARY FORCES OF THE GOVERNMENT OF THE COMMONWEALTH OF THE
PHILIPPINES  ...  ." 

FN4  VICTORIO V. UNITED STATES, 91 F. SUPP. 748 (1950), VACATED, 122
CT. CL. 708, 106 F. SUPP. 182 (1952); LOGRONIO V. UNITED STATES, 132
CT. CL. 596, 133 F. SUPP. 395 (1955), OVERRULING THE SECOND VICTORIO
OPINION, SUPRA. 

FN5  ON AUGUST 6, 1945, THE FUNCTIONS OF THE ARMY CLAIMS SERVICE,
WHICH HAD BEEN ESTABLISHED IN APRIL 1945, WERE EXTENDED TO INCLUDE
CONSIDERATION OF CERTAIN TYPES OF GUERRILLA CLAIMS, SUCH AS CLAIMS OF
CIVILIANS FOR COMPENSATION FOR SUPPLIES DELIVERED TO THE GUERRILLAS
DURING THE JAPANESE OCCUPATION, PROVIDED "THERE WAS A CLEAR
UNDERSTANDING AT THE TIME THE SUPPLIES AND EQUIPMENT OR SERVICES WERE
PURCHASED OR CONTRACTED FOR THAT PAYMENT WOULD EVENTUALLY BE MADE." 
SEE THE ORDER OF GENERAL MACARTHUR TO THE COMMANDING GENERAL, U.S.
ARMED FORCES, WESTERN PACIFIC, DATED AUGUST 6, 1945.  SUCH CLAIMS WERE
ACTUALLY ASSERTED AGAINST THE PHILIPPINE GOVERNMENT AND, IF AND WHEN
APPROVED BY THE CLAIMS SERVICE, WERE PAID BY THAT GOVERNMENT.  IN 1946,
CONGRESS ADVANCED $200,000,000 FOR THE EXPENSES OF THE ARMY OF THE
PHILIPPINES, 60 STAT. 14, AND AT VARIOUS OTHER TIMES DURING THE WAR
SIMILAR SPECIAL APPROPRIATIONS WERE MADE.  FROM SUCH APPROPRIATIONS THE
PHILIPPINE GOVERNMENT PAID WHATEVER CLAIMS WERE FOUND VALID.  FOR
FURTHER DISCUSSION OF THE OPERATION OF THE ARMY CLAIMS SERVICE IN THE
PHILIPPINES, SEE VICTORIO V. UNITED STATES, 91 F. SUPP. 748 (1950). 

FN6  WHILE THE COURT OF CLAIMS HELD IN DINO V. UNITED STATES, 119 CT.
CL. 307 (1951), THAT A CLAIM SIMILAR TO THE ONE HERE INVOLVED SHOULD
FIRST BE ASSERTED IN THE APPROPRIATE ADMINISTRATIVE AGENCY, THIS RULE
HAS NOW BEEN ABANDONED BY THAT COURT.  SEE, E.G., THE DISCUSSION IN TAN
V. UNITED STATES, 122 CT. CL. 662, 102 F. SUPP. 552 (1952), AND THE
CASES THERE CITED.    FN7  CONGRESS SPECIFICALLY TOLLED THE STATUTE OF
LIMITATIONS FOR SOME ACTIONS AGAINST THE GOVERNMENT DURING THE SECOND
WORLD WAR, E.G., SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, 54 STAT.
1181, 50 U.S.C. APP. SEC. 525, PROVIDING FOR SUSPENSION OF LIMITATIONS
IN SUITS BY OR AGAINST SERVICEMEN; AND SEC. 34 OF THE TRADING WITH THE
ENEMY ACT, 60 STAT.  925-926, 50 U.S.C. APP. SEC. 34(A), SUSPENDING
LIMITATIONS IN SUITS AGAINST THE ALIEN PROPERTY CUSTODIAN RESPECTING
VESTED PROPERTY.  HOWEVER, THE STATUTE OF LIMITATIONS HAS NOT BEEN
ENLARGED BY CONGRESS FOR CLAIMS SUCH AS PETITIONER'S.    FN8  40 STAT.
411, 50 U.S.C. APP. SEC. 2: 

"THAT THE WORD 'ENEMY,' AS USED HEREIN, SHALL BE DEEMED TO MEAN, FOR
THE PURPOSES OF SUCH TRADING AND OF THIS ACT: 

"(A)  ANY INDIVIDUAL, PARTNERSHIP, OR OTHER BODY OF INDIVIDUALS, OF
ANY NATIONALITY, RESIDENT WITHIN THE TERRITORY (INCLUDING THAT OCCUPIED
BY THE MILITARY AND NAVAL FORCES) OF ANY NATION WITH WHICH THE UNITED
STATES IS AT WAR, OR RESIDENT OUTSIDE THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY, AND ANY CORPORATION INCORPORATED WITHIN
SUCH TERRITORY OF ANY NATION WITH WHICH THE UNITED STATES IS AT WAR OR
INCORPORATED WITHIN ANY COUNTRY OTHER THAN THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY." 

FN9  THE PRESENT SAVING CLAUSE (SEE NOTE 1, SUPRA) WAS ENACTED IN
1948.  HOWEVER, THE PRE-1948 STATUTE, 36 STAT. 1139, 28 U.S.C. (1940
ED.)  SEC.  262, ALSO HAD A SAVING CLAUSE WHICH CONTAINED AS A SPECIFIC
DISABILITY "PERSONS BEYOND THE SEAS AT THE TIME THE CLAIM ACCRUED." 
THE 1948 AMENDMENT MERELY SUBSTITUTED THE GENERAL SAVING CLAUSE FOR THE
PRIOR CLAUSE WHICH SPECIFICALLY SET FORTH VARIOUS DISABILITIES. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
FRANKFURTER CONCUR, DISSENTING. 

IF PETITIONER HAD SUED IN THE COURT OF CLAIMS WITHOUT FIRST
PRESENTING HIS CLAIM TO THE ARMY CLAIMS SERVICE, I THINK THE COURT OF
CLAIMS WOULD HAVE BEEN WARRANTED IN DISMISSING IT.  THE ARMY CLAIMS
SERVICE WAS ESTABLISHED APRIL 7, 1945, BY GENERAL DOUGLAS MACARTHUR TO
PROCESS CLAIMS SUCH AS THIS ONE.  THE ARMY CLAIMS SERVICE QUESTIONED
WHETHER EXPENSES INCURRED BY GUERRILLA ORGANIZATIONS COULD BE PAID OUT
OF THE APPROPRIATED FUNDS.  ON AUGUST 6, 1945, GENERAL MACARTHUR
ADVISED THE ARMY CLAIMS SERVICE THAT IT COULD AUTHORIZE THE PAYMENT OF
CLAIMS SUCH AS THIS ONE.  THAT DIRECTIVE STATED: 

"  ...  THE UNITED STATES ARMY WILL ASSUME THE RESPONSIBILITY FOR
PAYING CERTAIN CLAIMS ARISING OUT OF ACTIVITIES OF GUERRILLA FORCES IN
THE PHILIPPINES.  THAT RESPONSIBILITY WILL BE LIMITED TO CLAIMS FOR THE
VALUE OF GOODS OR SERVICES ESSENTIAL FOR CARRYING ON OPERATIONS AGAINST
THE ENEMY. 

"  ...  NO PAYMENTS WILL BE MADE ON CLAIMS ARISING OUT OF ACTIVITIES
OF OTHER THAN RECOGNIZED GUERRILLA FORCES. 

     *         *   *         *         * 

"  ...  SUCH CLAIMS WILL BE PAID FROM THE APPROPRIATION, 'EXPENSES,
ARMY OF THE PHILIPPINES'. 

"  ...  PAYMENT WILL BE MADE ONLY ON CLAIMS WHERE THERE WAS A CLEAR
UNDERSTANDING AT THE TIME THE SUPPLIES AND EQUIPMENT OR SERVICES WERE
PURCHASED OR CONTRACTED FOR THAT PAYMENT WOULD EVENTUALLY BE MADE. 
THERE MUST HAVE BEEN A CLEAR INTENTION ON THE PART OF THE GUERRILLA
COMMANDER AND OF THE VENDOR OR EMPLOYEE THAT AN OBLIGATION WAS BEING
CREATED.  IT MUST BE DEFINITELY SHOWN THAT THE PROVISION OF SUCH
SUPPLIES, EQUIPMENT OR SERVICES WAS NOT INTENDED AS A PATRIOTIC
DONATION TO THE COMMON CAUSE AGAINST THE ENEMY.  IT MUST ALSO BE
DEFINITELY SHOWN THAT THE SUPPLIES, EQUIPMENT OR SERVICES WERE
ESSENTIAL FOR THE OPERATION OF THE GUERRILLA FORCES." 

THAT DIRECTIVE WAS ISSUED IN ACCORDANCE WITH THE ACT OF JULY 3, 1945,
59 STAT. 401-402, WHICH APPROPRIATED MONEY FOR "ALL EXPENSES NECESSARY
FOR THE MOBILIZATION, OPERATION, AND MAINTENANCE OF THE ARMY OF THE
PHILIPPINES."  THE EXPENDITURE AND ACCOUNTING WERE TO BE IN THE MANNER
PRESCRIBED BY THE PRESIDENT.  ID., AT 402.  AND THE MONEYS WERE TO BE
AVAILABLE TO THE PHILIPPINE GOVERNMENT "AS AUTHORIZED BY THE COMMANDING
GENERAL, UNITED STATES ARMY FORCES IN THE FAR EAST."  ID., AT 402.  THE
GOVERNMENT'S BRIEF ADVISES US THAT NEARLY $300,000,000 WAS APPROPRIATED
BY THE CONGRESS FOR THAT PURPOSE THROUGH JULY 3, 1945.  AND ON FEBRUARY
18, 1946, $200,000,000 MORE WAS ADDED TO THAT APPROPRIATION.  60 STAT.
14. 

THE STATUTORY SCHEME FOR PAYMENT OF THE EXPENSES OF THE GUERRILLA
FORCES, THEREFORE, DEMONSTRATES THAT THIS CLAIM, IF IT CAN BE SUSTAINED
ON THE MERITS, RUNS AGAINST THE UNITED STATES.  THE FACT THAT APPROVED
CLAIMS WERE PAID BY THE PHILIPPINE GOVERNMENT IS A MERE ADMINISTRATIVE
DETAIL.  FOR IT ACTED IN THIS RESPECT ONLY AS A DISBURSING AGENCY FOR
THE UNITED STATES. 

HENCE PETITIONER PROPERLY FIRST PRESENTED HIS CLAIM TO THE ARMY
CLAIMS SERVICE, WHICH REJECTED IT JUNE 21, 1948.  THE SIX-YEAR STATUTE
SHOULD BE HELD TO RUN FROM THAT DATE.  FOR IT IS THE GENERAL RULE THAT,
WHERE A CLAIM MUST FIRST BE PROCESSED BY AN ADMINISTRATIVE AGENCY, IT
DOES NOT ACCRUE UNTIL THE AGENCY REFUSES PAYMENT.  SEE UNITED STATES V.
TAYLOR, 104 U.S. 216, 222.  CF. UNITED STATES V. CLARK, 96 U.S. 37, 43
44. 

THAT WAS THE VIEW OF THE COURT OF CLAIMS IN AN EARLIER CASE INVOLVING
SUCH A PROBLEM.  SEE DINO V. UNITED STATES, 119 CT. CL. 307.  I THINK
THE COURT OF CLAIMS POSITION IN THE DINO CASE IS THE CORRECT ONE. 
..END :








JAFFKE V. DUNHAM 352 U.S. 280 


NO. 60.  ARGUED DECEMBER 12, 1956 - DECIDED JANUARY 14, 1957 - 229 F.2D
232, REVERSED AND REMANDED. 


THE DISTRICT COURT ENTERED JUDGMENT FOR PETITIONER, ALTHOUGH IT STRUCK
FROM THE RECORD AN AFFIDAVIT OFFERED IN EVIDENCE BY PETITIONER IN
SUPPORT OF HIS CLAIM.  THE COURT OF APPEALS REVERSED ON THE GROUND THAT
PETITIONER HAD FAILED TO PROVE HIS CLAIM.  IN DOING SO, IT REFUSED TO
CONSIDER THE ACTION OF THE DISTRICT COURT IN STRIKING THE AFFIDAVIT,
BECAUSE PETITIONER HAD NOT CROSS-APPEALED.  HELD: 

1.  IF THE DISTRICT COURT ERRED IN STRIKING THE AFFIDAVIT, A CROSS
APPEAL BY PETITIONER WAS NOT PREREQUISITE TO THE COURT OF APPEALS'
CONSIDERING THE AFFIDAVIT IN SUPPORT OF THE DISTRICT COURT'S JUDGMENT. 
P. 281. 

2.  ON REMAND OF THIS CASE, THE COURT OF APPEALS SHOULD CONSIDER THE
QUESTIONS OF THE ADMISSIBILITY AND WEIGHT OF THE AFFIDAVIT AND WHETHER
RELEVANT ADMISSIBLE EVIDENCE ESTABLISHED A CONSTRUCTIVE TRUST UNDER
ILLINOIS LAW.  P. 281. 

JAFFKE V. DUNHAM, TRUSTEE IN BANKRUPTCY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

WE GRANTED CERTIORARI IN THIS CASE TO REVIEW A JUDGMENT OF THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT, 229 F.2D 232, REVERSING AN ORDER OF
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS, SITTING THE
BANKRUPTCY, WHICH REQUIRED RESPONDENT AS TRUSTEE OF A BANKRUPT'S ESTATE
TO PAY $27,400 TO PETITIONER.  351 U.S. 949.  THE DISTRICT COURT'S
ORDER WAS BASED ON A FINDING THAT, SUBSEQUENT TO THE DATE OF THE
ADJUDICATION OF BANKRUPTCY, THE BANKRUPT HAD OBTAINED MONEY BY FRAUD
FROM THE PETITIONER AND HAD TURNED OVER $27,400 OF THAT MONEY TO
RESPONDENT.  AT THE HEARING BEFORE THE DISTRICT COURT, PETITIONER HAD
SOUGHT TO INTRODUCE INTO EVIDENCE AN AFFIDAVIT IN WHICH THE BANKRUPT
STATED THAT HE HAD PAID $36,000 OF THE MONEY HE HAD RECEIVED FROM
PETITIONER TO THE RESPONDENT.  AT THE CONCLUSION OF THE HEARING, THE
DISTRICT COURT SUSTAINED RESPONDENT'S MOTION TO STRIKE THE AFFIDAVIT. 

ON APPEAL, THE COURT OF APPEALS HELD THAT PETITIONER HAD FAILED TO
PROVE THAT ANY SPECIFIC PORTION OF THE MONEY THAT HE HAD GIVEN THE
BANKRUPT BECAME A PART OF THE FUNDS IN THE HANDS OF RESPONDENT. 
BECAUSE PETITIONER HAD NOT CROSS-APPEALED, THE COURT OF APPEALS HELD
THAT IT COULD NOT CONSIDER THE ACTION OF THE DISTRICT COURT IN STRIKING
THE BANKRUPT'S AFFIDAVIT FROM THE RECORD. 

A SUCCESSFUL PARTY IN THE DISTRICT COURT MAY SUSTAIN ITS JUDGMENT ON
ANY GROUND THAT FINDS SUPPORT IN THE RECORD.  IF THE DISTRICT COURT WAS
IN ERROR IN STRIKING AN ADMISSIBLE AFFIDAVIT, A CROSS-APPEAL WAS NOT A
PREREQUISITE FOR THE COURT OF APPEALS TO RULE ON THE ADMISSIBILITY OF
THE AFFIDAVIT, AND FINDING IT ADMISSIBLE, TO FIND THAT IT AFFORDED
EVIDENCE IN SUPPORT OF THE DISTRICT COURT JUDGMENT.  UNITED STATES V.
AMERICAN RAILWAY EXPRESS CO., 265 U.S. 425, 435-436; LANGNES V. GREEN,
282 U.S. 531, 538-539.  SINCE THE COURT OF APPEALS DID NOT CONSIDER THE
ADMISSIBILITY AND WEIGHT OF THE AFFIDAVIT, WE REMAND TO THE COURT OF
APPEALS FOR ITS CONSIDERATION OF THOSE ISSUES. 

THE CLAIM IN THIS CASE IS THAT RELEVANT ADMISSIBLE EVIDENCE
ESTABLISHED A CONSTRUCTIVE TRUST.  WHETHER IT DID SO OR NOT IS A
QUESTION OF ILLINOIS LAW.  THE COURT OF APPEALS, IN THE VIEW IT TOOK OF
THE CASE BEFORE IT, DID NOT REACH THIS LOCAL QUESTION.  ON REMAND, THAT
QUESTION TOO MUST BE CONSIDERED BY THE COURT OF APPEALS.  REVERSED AND
REMANDED. 
..END :






UNITED STATES V. INTERSTATE COMMERCE COMMISSION 352 U.S. 158 


NO. 12.  ARGUED OCTOBER 11, 1956 - DECIDED DECEMBER 17, 1956 - 132 F.
SUPP. 34, AFFIRMED. 


SINCE MAY 1, 1951, RAILROADS SERVING THE PORT OF NORFOLK, VA., HAVE
REFUSED TO PAY AN ALLOWANCE TO THE ARMY FOR THE WHARFAGE AND HANDLING
SERVICES THE ARMY PERFORMS FOR ITSELF ON MILITARY EXPORT TRAFFIC
PASSING THROUGH ARMY BASE PIERS.  IN THEIR TARIFFS THE RAILROADS
ASSUMED THE OBLIGATION TO FURNISH SUCH SERVICES FOR ALL SHIPPERS THAT
COMPLIED WITH THE TARIFFS, AND ACCORDINGLY FURNISHED THE SERVICES FOR
COMMERCIAL SHIPPERS AT PUBLIC SECTIONS OF THE SAME PIERS WITHOUT
ADDITIONAL CHARGE.  BECAUSE THE ARMY PROVIDES THESE SERVICES ITSELF, IT
CLAIMED A RIGHT TO THE $1.00 PER TON PAID BY THE RAILROADS ON BEHALF OF
COMMERCIAL SHIPPERS.  A COMPLAINT CHARGING THE RAILROADS WITH VIOLATING
THE INTERSTATE COMMERCE ACT WAS DISMISSED BY THE INTERSTATE COMMERCE
COMMISSION, AND THE UNITED STATES SUED TO SET ASIDE THE ORDER.  HELD:
IN THE CIRCUMSTANCES OF THIS CASE, THE REFUSAL OF THE RAILROADS TO MAKE
THE ALLOWANCE TO THE ARMY DID NOT SUBJECT THE GOVERNMENT TO UNJUST
DISCRIMINATION AND DID NOT CONSTITUTE AN UNREASONABLE PRACTICE IN
VIOLATION OF THE INTERSTATE COMMERCE ACT.  PP. 160-176. 

(A)  THE CIRCUMSTANCES OF ARMY SHIPMENTS ARE MARKEDLY DIFFERENT FROM
THOSE OF PRIVATE SHIPPERS THAT RECEIVED WHARFAGE AND HANDLING SERVICES;
AND THE ARMY WAS TREATED IDENTICALLY WITH THOSE SHIPPERS WHO FOR
BUSINESS REASONS DID NOT CARE TO COMPLY WITH THE TARIFF REQUIREMENTS. 
PP. 168-169. 

(B)  ALTHOUGH THE ARMY HIRED THE SAME PRIVATE COMPANY AS DID THE
RAILROADS TO OPERATE THE ARMY PORTION OF THE BASE, THE ARMY'S CONTROL
WAS "ABSOLUTE."  PP. 169-171. 

(C)  THE METHOD OF HANDLING GOVERNMENT FREIGHT DID NOT COMPLY WITH
THE TARIFF REQUIREMENTS.  P. 172. 

(D)  ANY DEVIATION FROM TARIFFS BY CARRIERS VIOLATES SEC. 6(7) OF THE
INTERSTATE COMMERCE ACT, UNLESS THEY GRANT A CONCESSION TO THE UNITED
STATES UNDER SEC. 22.  P. 172. 

(E)  THE GOVERNMENT WAS BEING TREATED JUST AS ANY SHIPPER WHO DECIDES
NOT TO TAKE ADVANTAGE OF THE SERVICES OFFERED IN THE TARIFF AND TAKES
DELIVERIES OF EXPORT RATE TRAFFIC AT PRIVATE PIERS UNDER HIS OWN
CONTROL.  PP. 172-173. 

(F)  THAT THE GOVERNMENT TOOK CONTROL OF THE PIERS TO MEET A NATIONAL
EMERGENCY CANNOT CONVERT THE GOVERNMENT'S OPERATION OF ITS PRIVATE
PIERS INTO A CATEGORY DIFFERENT FROM THAT OF PRIVATE SHIPPERS.   P.
173. 

(G)  THE FACT THAT THE OPERATIONS OF THE GOVERNMENT AND THE RAILROADS
ARE IN THE SAME PIER AREA IS IMMATERIAL.  P. 174. 

(H)  IF THE RAILROADS GAVE AN ALLOWANCE IN THESE CIRCUMSTANCES,
EXCEPTING ONE GIVEN AS A CONCESSION TO THE GOVERNMENT UNDER SEC. 22 OF
THE ACT, THEY WOULD HAVE TO GIVE IT AT ALL PRIVATE PIERS WHERE THE
SHIPPER WANTED TO HANDLE WHARFAGE AT ITS OWN DISCRETION.  P. 174. 

(I)  THE GOVERNMENT HAS THE RIGHT TO HAVE ITS SHIPMENTS ACCORDED THE
SAME PRIVILEGES GIVEN OTHERS; IN EMERGENCIES ITS TRAFFIC MAY HAVE
"PREFERENCE OR PRIORITY IN TRANSPORTATION"; AND IT MAY BE GRANTED AND
MAY ACCEPT PREFERENCES IN RATES; BUT IT CANNOT OTHERWISE REQUIRE EXTRA
SERVICES OR ALLOWANCES.  P. 174. 

(J)  UNITED STATES V. UNITED STATES SMELTING CO., 339 U.S. 186,
DISTINGUISHED.  P. 175. 

(K)  WHETHER CIRCUMSTANCES AND CONDITIONS ARE SUFFICIENTLY DISSIMILAR
TO JUSTIFY DIFFERENCES IN RATES OR CHARGES IS A QUESTION OF FACT FOR
THE COMMISSION'S DETERMINATION.  PP. 175-176. 

UNITED STATES V. INTERSTATE COMMERCE COMMISSION ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL REQUIRES A DETERMINATION OF WHETHER RAILROADS SERVING THE
PORT OF NORFOLK, VIRGINIA, MUST GRANT THE UNITED STATES AN ALLOWANCE
FOR THE GOVERNMENT'S PERFORMANCE OF CERTAIN WHARFAGE AND HANDLING
SERVICES ON ITS OWN EXPORT FREIGHT.  FOR SHIPPERS WHO CONFORM TO THE
REQUIREMENTS OF THE TARIFF, THE RAILROADS ASSUME THESE CHARGES AS A
PART OF THE RATE.  THE UNITED STATES, HOWEVER, FOUND IT IMPRACTICAL TO
CONFORM TO THE TARIFF REQUIREMENTS. 

THE PRESENT LITIGATION WAS INSTITUTED PURSUANT TO 28 U.S.C. SEC. 2325
IN A THREE-JUDGE DISTRICT COURT OF THE DISTRICT OF COLUMBIA BY THE
UNITED STATES, THROUGH ITS DEPARTMENT OF THE ARMY, AGAINST THE
INTERSTATE COMMERCE COMMISSION AND THE UNITED STATES, TO SET ASIDE THE
COMMISSION'S ORDER IN UNITED STATES V. ABERDEEN & ROCKFISH R. CO., 289
I.C.C. 49.  THAT ORDER DISMISSED A COMPLAINT FILED BY THE UNITED STATES
ON NOVEMBER 20, 1951, AGAINST SEVERAL NAMED RAILROADS CHARGING THEM
WITH VIOLATIONS OF THE INTERSTATE COMMERCE ACT.  THE DISTRICT COURT,
ONE JUDGE DISSENTING, DISMISSED THE COMPLAINT.  132 F. SUPP. 34.  WE
NOTED PROBABLE JURISDICTION.  350 U.S. 930. 

SINCE MAY 1, 1951, THE RAILROADS HAVE REFUSED TO PAY AN ALLOWANCE TO
THE ARMY FOR THE WHARFAGE AND HANDLING (FN1) SERVICES THE ARMY PERFORMS
ON MILITARY EXPORT TRAFFIC PASSING THROUGH ARMY BASE PIERS IN NORFOLK,
VIRGINIA.  THE RAILROADS HAVE ASSUMED IN THEIR TARIFFS THE OBLIGATION
TO FURNISH THESE ACCESSORIAL SERVICES FOR ALL SHIPPERS THAT COMPLY WITH
THEIR TARIFFS.  AND, IN ACCORDANCE WITH THESE TARIFFS, THE RAILROADS
HAVE FURNISHED THE SERVICES FOR COMMERCIAL SHIPPERS AT PUBLIC SECTIONS
OF THE SAME PIERS WITHOUT ADDITIONAL CHARGE.  THESE SERVICES WERE
PERFORMED FOR THE ARMY AND THE RAILROADS BY THE SAME PRIVATE COMPANY -
FOR THE ARMY UNDER CONTRACT TO CARRY OUT ITS ORDERS FOR TERMINAL AND
STORAGE SERVICES; FOR THE RAILROADS BY CONTRACT TO ACT AS THE CARRIERS'
AGENT IN ACCORDANCE WITH THEIR TARIFFS. 

THE ARMY SOUGHT A DETERMINATION THAT THE RAILROADS' REFUSAL TO MAKE
AN ALLOWANCE TO IT TO THE SAME EXTENT THAT THE RAILROADS PAID THE
PRIVATE COMPANY, STEVENSON & YOUNG, FOR HANDLING OF PRIVATE SHIPMENTS
SUBJECTED THE GOVERNMENT TO UNJUST DISCRIMINATION AND CONSTITUTED AN
UNREASONABLE PRACTICE IN VIOLATION OF SECS. 1, 2, 3, AND 6 OF THE
INTERSTATE COMMERCE ACT.  (FN2)  THE ARMY ALSO REQUESTED AN ORDER THAT
THE RAILROADS CEASE AND DESIST FROM SUCH REFUSAL IN THE FUTURE.  (FN3) 

THE TRANSFER OF EXPORT FREIGHT FROM RAIL CARRIERS TO OUTBOUND WATER
CARRIERS IS MADE ON PIERS OR WHARVES THAT ALLOW THE UNLOADING OF
FREIGHT FROM RAILROAD CARS TO WITHIN REACH OF SHIPS' TACKLE.  RAILROADS
ARE UNDER NO STATUTORY OBLIGATION TO FURNISH SUCH PIERS OR TO UNLOAD
CARLOT FREIGHT, PENNSYLVANIA R. CO. V. KITTANNING CO., 253 U.S. 319,
323.  (FN4)  IN GENERAL THE RAILROADS HAVE TAKEN ON THE DUTY OF
WHARFAGE AND HANDLING FOR FREIGHT CONSIGNED FOR OVERSEAS SHIPMENT. 
(FN5)  IN SOME INSTANCES RAILROADS HAVE CHARGED FOR THE USE OF THE
PIERS ("WHARFAGE") AND THE NECESSARY "HANDLING" SEPARATELY FROM THEIR
CHARGE FOR LINE-HAUL TRANSPORTATION.  IN OTHER CASES THERE HAS BEEN
ONLY A SINGLE FACTOR EXPORT RATE (ONE INCLUSIVE CHARGE) PROVIDING FOR
LIMITED SHIPSIDE DELIVERY WITH THE RAILROAD FURNISHING THESE
ACCESSORIAL SERVICES PURSUANT TO THEIR TARIFFS AT NO EXTRA CHARGE TO
THE SHIPPER.  THE LATTER PRACTICE HAS BEEN GENERALLY FOLLOWED BY
RAILROADS SERVING NORTH ATLANTIC PORTS.  WHERE RAILROADS DO NOT HAVE
THEIR OWN PIERS, THEY HAVE PROVIDED THESE SERVICES BY CONTRACTING WITH
COMMERCIAL TERMINAL OPERATORS. 

  I. 

THE NORFOLK PIERS, INVOLVED IN THIS MATTER, WERE MANAGED BY SUCH
OPERATORS.  THEY WERE BUILT BY THE UNITED STATES AFTER WORLD WAR I AND
HAVE BEEN LEASED IN PART OR IN WHOLE TO A SERIES OF COMMERCIAL
OPERATORS SINCE THEN.  THE LEASES WERE CANCELLED DURING WORLD WAR II
BUT THEY WERE LEASED TO STEVENSON & YOUNG, A PRIVATE TERMINAL OPERATOR,
AT THE END OF THAT WAR.  THE RAILROADS HERE INVOLVED, USING THE SINGLE
FACTOR SHIPSIDE RATE DESCRIBED ABOVE, CONTRACTED WITH STEVENSON &
YOUNG, AS THEIR AGENT, TO PERFORM THE WHARFAGE AND HANDLING FOR 25
CENTS PER TON FOR WHARFAGE AND 75 CENTS PER TON FOR HANDLING, ON BOTH
COMMERCIAL AND MILITARY FREIGHT.  BUT WITH THE ADVENT OF THE KOREAN
HOSTILITIES, THE GOVERNMENT AGAIN CANCELLED THE LEASES AND THE ARMY
TOOK ENTIRE CONTROL OF THE PIERS.  APPARENTLY THE MILITARY SHIPMENTS
REQUIRE SPECIAL HANDLING AND STORAGE.  TO ASSURE ITS COMPLETE
SATISFACTION, THE ARMY HIRED STEVENSON & YOUNG TO PERFORM THOSE
SERVICES UNDER A GENERAL PIER-OPERATING CONTRACT FOR THE ARMY.  (FN6)
THE UNUSED PORTIONS OF THE PIERS WERE LATER RELEASED BY THE GOVERNMENT,
BY A CONTRACT DATED DECEMBER 28, 1951, FOR THE COMMERCIAL OPERATIONS OF
STEVENSON & YOUNG.  BY THAT CONTRACT STEVENSON & YOUNG LEASED THE
UNUSED PARTS FOR 1952 FROM THE UNITED STATES, FOR A PUBLIC COMMERCIAL
MARITIME TERMINAL.  IT WAS OVER THESE LEASED PORTIONS OF THE PIERS THAT
THE LESSEE CARRIED ON ITS PUBLIC WAREHOUSING ACTIVITIES IN ACCORDANCE
WITH THE RAILROAD TARIFFS. 

A TYPICAL TARIFF ARRANGEMENT APPEARS IN THE NOTE BELOW.  IT IS THE
BASIC EXHIBIT IN THIS CASE.  (FN7)  IT WAS BOTTOMED ON A CONTRACT OF
APRIL 5, 1947, BETWEEN THE PENNSYLVANIA RAILROAD AND STEVENSON &
YOUNG.  BY THAT CONTRACT STEVENSON & YOUNG, AS A PUBLIC WHARFINGER,
AGREED TO ACT "AS DIRECTED BY THE RAILROAD" AND AS ITS AGENT FOR
WHARFAGE AND HANDLING OF "EXPORT, IMPORT, COASTWISE AND INTERCOASTAL
FREIGHT" IN ACCORDANCE WITH THE TARIFF UPON THE FACILITIES IT ACQUIRED
ON THE ARMY BASE.  THE AGENT ASSUMED RESPONSIBILITY FOR FREIGHT CHARGES
AND CARE OF FREIGHT IN ITS CHARGE.  IT AGREED, PARAGRAPH 4, THAT: 

"THE TERMINAL (STEVENSON & YOUNG) SHALL PROVIDE ADEQUATE FACILITIES
FOR THE HANDLING AND STORAGE OF THE FREIGHT SUBJECT TO THIS AGREEMENT,
SHALL PROVIDE ACCESS TO THE RAILROAD OR ITS AGENT, THE NORFOLK AND
PORTSMOUTH BELT LINE RAILROAD, FOR THE DELIVERY OF CARS TO AND FROM
SHIPSIDE WITHOUT INTERFERENCE OR INTERRUPTION, AND SHALL LOAD AND
UNLOAD CARS PROMPTLY WITHOUT INTERFERENCE OR INTERRUPTION, AND SHALL
LOAD AND UNLOAD CARS PROMPTLY WITHOUT DELAY OF FREIGHT OR RAILROAD
EQUIPMENT." 

PARAGRAPH 13 SAID: 

"THIS AGREEMENT SHALL TERMINATE ABSOLUTELY AND IMMEDIATELY WHENEVER
THE TERMINAL CEASES TO OPERATE THE SAID FACILITIES AS A PUBLIC
WHARFINGER FOR THE HANDLING OF FREIGHT, AND IN ANY EVENT SHALL BE
TERMINABLE BY EITHER PARTY ON THIRTY DAYS NOTICE IN WRITING." 

A LARGE AMOUNT OF PRIVATE COMMERCIAL TRAFFIC CONTINUED OVER THE
RELEASED PORTIONS OF THE PIERS, AND THE RAILROADS CONTINUED TO ABSORB
THE COST OF THAT WHARFAGE AND HANDLING BY PAYING STEVENSON & YOUNG
$1.00 PER TON OF FREIGHT. 

THE RESULT OF THE ARMY'S INSISTENCE ON OPERATING ITS OWN PIER
FACILITIES IS THAT THE ARMY PAYS THE SAME EXPORT RATES WITHOUT
RECEIVING WHARFAGE AND HANDLING SERVICES AS COMMERCIAL SHIPPERS DO FOR
WHOM THE RAILROADS PROVIDE THOSE SERVICES AT NO ADDITIONAL CHARGE. 
BECAUSE THE ARMY PROVIDES THESE SERVICES ITSELF, IT CLAIMS A RIGHT TO
THE $1.00 PER TON PAYMENT PAID BY THE RAILROADS ON BEHALF OF THE
COMMERCIAL SHIPPERS. 

IN TERMS OF THE INTERSTATE COMMERCE ACT, THE GOVERNMENT BASES ITS
ARGUMENT ON TWO GROUNDS: 

"THE RAILROADS' REFUSAL TO ABSORB WHARFAGE AND HANDLING CHARGES ON
ARMY FREIGHT TO THE SAME EXTENT THAT THEY ABSORB SUCH CHARGES ON
CIVILIAN FREIGHT MOVING OVER THE SAME PIERS UNDER IDENTICAL RATES IS
UNJUSTLY DISCRIMINATORY IN VIOLATION OF SECTION 2 OF THE INTERSTATE
COMMERCE ACT." 

AND: 

"THE RAILROADS' REFUSAL TO PAY FOR WHARFAGE AND HANDLING ON ARMY
FREIGHT WAS AN UNJUST AND UNREASONABLE PRACTICE IN VIOLATION OF SECTION
1(6) OF THE ACT." 

IT SHOULD BE NOTED THAT THE UNITED STATES IS NOT ATTACKING THE FORM
OF THE TARIFF, WHICH PROVIDES FOR BOTH LINE-HAUL SERVICE AND THE
ACCESSORIAL SERVICES IN THE SINGLE FACTOR EXPORT RATE.  (FN8)
CONSEQUENTLY, THIS CASE INVOLVES ONLY CHARGED DISCRIMINATION AND
INJUSTICE.  CF. UNITED STATES V. INTERSTATE COMMERCE COMMISSION, 337
U.S. 426, 437-438.  IN SHORT, THE UNITED STATES SEEKS TO BE EXCEPTED
FROM THE TARIFF REQUIREMENT THAT CALLS FOR THE SHIPPER TO USE A PUBLIC
WHARFINGER UNDER CONTRACT TO THE RAILROADS FOR PERFORMANCE OF THE
WHARFAGE AND HANDLING.  (FN9) 

THIS CONTROVERSY IS SIMILAR TO ONE THAT AROSE OUT OF THE ARMY'S
CANCELLATION OF THE NORFOLK PIER LEASES DURING WORLD WAR II, UNITED
STATES V. ABERDEEN & ROCKFISH R. CO., 269 I.C.C. 141.  INTERPRETING
RAILROAD PRACTICES MUCH LIKE THOSE NOW BEFORE THIS COURT, THE I.C.C.
DETERMINED THAT THE ARMY WAS NOT BEING DISCRIMINATED AGAINST.  HOWEVER,
ON REVIEW, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA REMANDED
THE CASE TO THE I.C.C. FOR FURTHER EXPOSITION AND CLARIFICATION.  91
U.S. APP. D.C. 178, 198 F.2D 958.  ON REMAND THE I.C.C. REAFFIRMED ITS
EARLIER DETERMINATION AND NO APPEAL HAS BEEN TAKEN FROM THAT ORDER. 
294 I.C.C. 203.  BECAUSE THE QUESTION OF WHETHER THE ARMY WAS
DISCRIMINATED AGAINST FOLLOWING THE GOVERNMENT'S WORLD WAR II LEASE
CANCELLATION HAS NEVER BEEN FINALLY PASSED UPON, THE DISTRICT OF
COLUMBIA RULING IS NOT INCONSISTENT WITH THE COMMISSION'S CONCLUSION IN
THIS LITIGATION. 

                                              II. 

THE GOVERNMENT ASSERTS THAT IT IS CHARGED MORE ON ITS EXPORT
SHIPMENTS THROUGH THE NORFOLK ARMY BASE THAN COMMERCIAL SHIPPERS UNDER
SUBSTANTIALLY SIMILAR CIRCUMSTANCES.  SUCH AN EXACTION WOULD BE, OF
COURSE, AN UNJUST AND UNREASONABLE PRACTICE OF DISCRIMINATION.  BUT IT
SEEMS APPARENT THAT THE CIRCUMSTANCES OF ARMY SHIPMENTS ARE MARKEDLY
DIFFERENT FROM THOSE OF PRIVATE SHIPPERS THAT RECEIVE WHARFAGE AND
HANDLING SERVICES.  MOREOVER, IT SEEMS EQUALLY CLEAR THAT THE ARMY IS
TREATED IDENTICALLY WITH THOSE SHIPPERS WHO FOR BUSINESS REASONS DO NOT
CARE TO COMPLY WITH THE TARIFF REQUIREMENTS. 

THE ARMY ROUTED ITS EXPORT SHIPMENTS DIRECT TO ITSELF AT THE ARMY
BASE AS CONSIGNEE.  AS IS SHOWN BY THE CONTRACTS SUMMARIZED ABOVE, THE
ENTIRE ARMY BASE PROPERTY WAS UNDER MILITARY CONTROL EXCEPT FOR THE
COMMERCIAL OPERATIONS OF STEVENSON & YOUNG.  THE BASE INCLUDED PIERS,
BULKHEADS, RAILWAYS AND STORAGE WAREHOUSES, AND RAILROAD SWITCHES,
TRACKS AND YARDS.  THE COMMISSION FOUND THAT THE ARMY HAD DETERMINED
"THAT PORTS OF EMBARKATION MUST BE OPERATED BY PERSONNEL OF THE
MILITARY SERVICE AND CIVILIAN EMPLOYEES OF THE GOVERNMENT."  289
I.C.C., AT 53.  (FN10) 

ALTHOUGH THE ARMY HIRED THE STEVENSON COMPANY TO OPERATE THE ARMY
PORTION OF THE BASE, THE ARMY'S CONTROL WAS "ABSOLUTE." 

"AN ARMY YARDMASTER IS ON DUTY AT ALL TIMES TO GIVE INSTRUCTIONS FOR
DISPOSITION OF CARS OF ARMY FREIGHT DELIVERED AT THE BASE.  WHEN EITHER
THE BELT LINE OR THE VIRGINIAN HAS CARS FOR DELIVERY, THE YARD CLERK AT
THE BASE IS NOTIFIED BY TELEPHONE.  IF PLACEMENT AT A PIER OR WAREHOUSE
IS READY FOR ANY OF THOSE CARS, THE CARRIER IS TOLD WHERE TO MAKE
DELIVERY.  THESE INSTRUCTIONS ARE CONFIRMED IN WRITING AND HANDED TO
THE CONDUCTOR WHEN HE ARRIVES AT THE BASE.  CARS FOR WHICH PLACEMENT
ORDERS ARE NOT READY ARE LEFT IN THE PIER NO. 1 YARD BY THE BELT LINE
AND IN THE UPTOWN YARD BY THE VIRGINIAN, IN ACCORDANCE WITH A GENERAL
UNDERSTANDING AS TO THE DISPOSITION OF SUCH CARS."  289 I.C.C., AT 54
55. 

SUCH DIRECTION WAS NECESSARY.  AS THE COMMANDING OFFICER SAID, IN
REGARD TO SWITCHING AND PLACING BY THE CARRIERS: 

"THE WITNESS:  IF YOU WOULD LET THEM SWITCH THEMSELVES, THEY HAVE TO
KNOW WHAT THEY ARE DOING, WE HAVE TO GIVE THEM THE SWITCH LIST AND KNOW
WHAT TO DO WITH IT. 

     *         *         *         *      * 

"Q.  WILL YOU PERMIT THEM TO DO IT AT THEIR OWN CONVENIENCE, IN AN
ORDERLY MANNER? 

"A.  I DON'T KNOW HOW ANY BUSINESS CAN BE RUN, IF YOU RUN IT AT THE
CONVENIENCE OF SOMEONE ELSE.  THEY COULDN'T POSSIBLY DO IT AT THEIR OWN
CONVENIENCE, UNLESS THEIR CONVENIENCE COINCIDED WITH OUR REQUIREMENT. 

 *         *         *         *         * 

"Q.  AND YET YOU COULDN'T PERMIT THE TERMINAL OPERATOR TO OPERATE IN
A NORMAL WAY. 

"A.  NO, BECAUSE THAT INVOLVES A MANAGEMENT PROBLEM.  YOU WOULD HAVE
TO HAVE A MANAGEMENT TEAM IN HERE TO SETTLE THE ACCOUNTS OF THE
TERMINAL OPERATOR.  THEY DON'T WORK FOR NOTHING, AS YOU QUITE WELL
KNOW.  SOMEBODY HAS TO MONITOR ALL THAT, MANAGE THE WHOLE THING, AND
DIRECT THE BRINGING IN OF THE CARGO.  THAT IS ALL IN OVER-LAY STAFF OF
OURS, WHICH IS LARGE ENOUGH." 

THIS ARMY CONTROL OVER THE MOVEMENT OF FREIGHT ON THOSE PORTIONS OF
THE PIERS THAT WERE NOT LEASED TO STEVENSON & YOUNG LEFT THE RAILROADS
SERVING THE BASE WITHOUT AUTHORITY IN THOSE AREAS TO DIRECT THE
SWITCHING, SPOTTING AND REMOVAL OF THE CARS ACCORDING TO THEIR OWN
CONVENIENCE.  289 I.C.C., AT 64. 

THE FACT THAT THE ARMY CONTROLS ITS AREAS OF THE BASE, AND THE FACT
THAT THE RAILROADS HANDLE THEIR OWN WHARFAGE AND SWITCHING ON THEIR
PORTIONS AS THEY CHOOSE, ARE NOT MERE FORMAL DIFFERENCES.  THEY ARE
FACTORS IN TRAFFIC MOVEMENT.    "IT IS THE RIGHT OF EVERY SHIPPER
INCLUDING THE GOVERNMENT AS HERE CONCERNED, TO PROHIBIT A CARRIER FROM
PERFORMING SWITCHING UPON PRIVATE TRACKS, EVEN THOUGHT THE CARRIER
MIGHT BE WILLING AND ABLE TO PERFORM THE SERVICE.  WHEN SO PROHIBITED
BY THE SHIPPER, AS WAS HERE DONE BY THE ARMY, THE CARRIER'S OBLIGATION
TO PERFORM THE SERVICE IS DISCHARGED, AND THE PAYMENT OF ALLOWANCES TO
THE SHIPPER FOR ITS PERFORMANCE OF THE SERVICE, IN WHOLE OR IN PART,
WOULD BE UNLAWFUL, EXCEPT AS A VOLUNTARY CONCESSION OF THE CARRIERS TO
THE GOVERNMENT UNDER SECTION 22."  289 I.C.C., AT 65. 

THE PROBLEMS OF THE ASSUMPTION BY THE CARRIERS OF THE COSTS OF
WHARFAGE AND HANDLING AT PORTS HAVE A LONG HISTORY.  THE NORFOLK AREA
HAS NOT BEEN AN EXCEPTION, AS HAS BEEN HERETOFORE INDICATED.  SEE P.
168, SUPRA.  WHEN THE GOVERNMENT AGAIN IN 1951 FOUND IT DESIRABLE TO
CANCEL THE LEASES, IT WAS FAMILIAR WITH THE VARIOUS FACETS OF THE
CONTROVERSY OVER WHARFAGE AND HANDLING.  (FN11)

        III. 

IT IS OBVIOUS THAT THE METHOD OF HANDLING GOVERNMENT FREIGHT DOES NOT
COMPLY WITH THE TARIFF REQUIREMENTS.  IT DOES NOT MOVE OVER WHARF
PROPERTIES OWNED, LEASED AND OPERATED BY THE STEVENSON COMPANY "AS A
PUBLIC TERMINAL FACILITY OF THE RAIL CARRIERS."  RULE 47(B), N. 7,
SUPRA. 

"AT ALL TIMES DURING THAT PERIOD, MILITARY TRAFFIC WAS STORED ON AND
HANDLED OVER WHARF AND OTHER PROPERTIES ON THE ARMY BASE WHICH WERE
UNDER THE EXCLUSIVE CONTROL OF THE ARMY."  289 I.C.C., AT 60. 

ANY DEVIATION FROM TARIFFS BY CARRIERS VIOLATES SEC. 6(7) OF THE ACT,
49 U.S.C., UNLESS THEY GRANT A CONCESSION UNDER SEC. 22.  (FN12)

                                             IV. 

THE GOVERNMENT ACTUALLY IS BEING TREATED JUST AS ANY SHIPPER WHO
DECIDES NOT TO TAKE ADVANTAGE OF THE SERVICES OFFERED IN THE TARIFF. 
IT SEEKS A PREFERENCE OVER THESE OTHER SHIPPERS WHO TAKE DELIVERIES OF
EXPORT RATE TRAFFIC AT PIERS UNDER THEIR OWN CONTROL, SO-CALLED PRIVATE
PIERS.  THE GENERAL PRACTICE AT NORTH ATLANTIC PORTS IS TO REFUSE TO
ABSORB HANDLING CHARGES AT PRIVATE PIERS, EVEN THOUGH THEY ARE ABSORBED
WHERE THE CARRIERS HAVE CONTROL OF THE FACILITIES.  THE RECORD SHOWS 84
PRIVATE PIERS ALONG THE ATLANTIC COAST WHERE THE RAILROADS MAKE NO
ALLOWANCE OR COMPENSATION FOR HANDLING OR WHARFAGE.  IT WAS TESTIFIED: 

"ONE OF THE PRINCIPAL LIMITATIONS ON THE PORT PRACTICES WHICH I SHALL
MENTION IS THE RESTRICTION OF THE LOADING PRACTICE TO RAILROAD OR OTHER
PUBLIC PIERS, AS DISTINGUISHED FROM PRIVATE PIERS OPERATED BY
SHIPPERS." 

THERE WAS NO EVIDENCE TO THE CONTRARY AND THE COMMISSION ACCEPTED
THAT SITUATION AS A FACT.  289 I.C.C., AT 58, 61, 63.  THE DIFFERENCE
BETWEEN A PUBLIC AND A PRIVATE PIER UNDER THE TARIFFS IS WHETHER THE
RAILROADS HAVE CONTROL OF THE AREAS DIRECTLY OR THROUGH THEIR AGENTS,
OR WHETHER THE SHIPPER OR CONSIGNEE HAS CONTROL. 

THERE IS NO OJBECTION TO SUCH A PRACTICE GENERALLY, WHETHER THE LINE
HAUL RATES AND THE HANDLING RATES ARE STATED IN A SINGLE FACTOR RATE OR
SEPARATELY.  TO REQUIRE THE CARRIERS TO FURNISH SUCH ACCESSORIAL
SERVICES AT EVERY PRIVATE PIER WOULD DISPERSE THE TRAFFIC, CAUSE THE
MAINTENANCE OF MORE CREWS OR WATCHMEN, AND THUS ADD TO THE COST OF
TRANSPORTATION. 

THE GOVERNMENT CONTENDS THAT IT IS NOT IN THE SAME POSITION AS OTHER
SHIPPERS WHO CONTROL PRIVATE PIERS, BECAUSE IT TOOK CONTROL OF THE
NORFOLK PIERS TO MEET A NATIONAL EMERGENCY.  BUT WE THINK THAT THE
EMERGENCY CANNOT CONVERT THE GOVERNMENT'S OPERATION OF ITS PRIVATE
PIERS INTO A CATEGORY DIFFERENT FROM THAT OF PRIVATE SHIPPERS.  (FN13)
AND, THE FACT THAT THE OPERATIONS OF THE GOVERNMENT AND THE RAILROADS
ARE IN THE SAME PIER AREA SEEMS TO US IMMATERIAL.  IF THE RAILROADS
GAVE AN ALLOWANCE HERE, EXCEPTING ONE GIVEN UNDER SEC. 22 OF THE ACT,
THEY WOULD HAVE TO GIVE IT AT ALL PRIVATE PIERS WHERE THE SHIPPER
WANTED TO HANDLE WHARFAGE AT ITS OWN DISCRETION.  CF.  MERCHANTS
WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501; WEYERHAEUSER TIMBER CO.
V. PENNSYLVANIA R. CO., 229 I.C.C. 463. 

THE GOVERNMENT HAS THE RIGHT TO HAVE ITS SHIPMENTS ACCORDED THE SAME
PRIVILEGES GIVEN OTHERS.  MOREOVER, IN EMERGENCIES ITS TRAFFIC MAY HAVE
"PREFERENCE OR PRIORITY IN TRANSPORTATION," 49 U.S.C. SEC. 1(15)(D),
AND IT MAY BE GRANTED AND MAY ACCEPT PREFERENCES IN RATES.  (FN14)  BUT
THE GOVERNMENT CANNOT OTHERWISE REQUIRE EXTRA SERVICES OR ALLOWANCES. 
IN THE SITUATION HERE PRESENTED, IT COULD HAVE USED THE SAME FACILITIES
AS COMMERCIAL SHIPPERS AND OBTAINED THE BENEFITS OF THE TARIFF.  THE
EVIDENCE TO THIS EFFECT IS UNCONTRADICTED.  (FN15)  THE COMMISSION
ACCEPTED IT AS A FACT.  289 I.C.C., AT 58, 60-61, 63. 

                                              V. 

THE COMMISSION DREW FROM THE ABOVE CIRCUMSTANCES A CONCLUSION THAT
THE TARIFFS AND CONDUCT OF THE RAILROADS ARE NOW SHOWN TO HAVE BEEN
UNLAWFUL. 

THE UNITED STATES ARGUES THAT CARRIERS CANNOT PERFORM ACCESSORIAL
SERVICES IN SUCH A WAY THAT "SOME SHIPPERS WOULD PAY AN IDENTICAL LINE
HAUL RATE FOR LESS SERVICE THAN THAT REQUIRED BY OTHER INDUSTRIAL
PLANTS."  UNITED STATES V. UNITED STATES SMELTING CO., 339 U.S. 186,
197.  TO DO SO WOULD INDEED VIOLATE SEC. 2 OF THE INTERSTATE COMMERCE
ACT.  (FN16)  BUT THE SMELTING CASE IS NOT APPOSITE.  WE AFFIRMED A
COMMISSION ORDER ENJOINING INTRA-PLANT CAR SWITCHING AND SPOTTING
SERVICES AFTER TERMINATION OF THE LINE HAUL.  IT TERMINATED AT A
"CONVENIENT POINT" ON A SIDING AT CONSIGNEE'S PLANT.  OUR DECISION
THERE TURNED ON AND UPHELD THE COMMISSION'S POWER TO DETERMINE THE END
POINT OF THE LINE HAUL.  BECAUSE THE LINE-HAUL TARIFFS INCLUDED ONLY
CAR MOVEMENT TO AND FROM THAT CONVENIENT POINT, SOME SHIPPERS RECEIVED
MORE SERVICE THAN OTHERS FOR THE LINE-HAUL RATE.  P. 197.  (FN17)  THUS
OUR DETERMINATION WAS BASED ON THE UNLAWFUL PREFERENCE ALLOWED SOME
SHIPPERS BY THE TARIFFS SINCE THOSE DISCRIMINATED AGAINST COULD NOT GET
THE SAME SERVICE AS OTHER SHIPPERS. 

FURTHERMORE, WHETHER THE CIRCUMSTANCES AND CONDITIONS ARE
SUFFICIENTLY DISSIMILAR TO JUSTIFY DIFFERENCES IN RATES OR CHARGES IS A
QUESTION OF FACT FOR THE COMMISSION'S DETERMINATION.  (FN18) 

THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE RECORD BEFORE THE
COMMISSION, AND WE AFFIRM.  AFFIRMED. 

FN1  "WHARFAGE REFERS TO THE PROVISION OF SPACE ON THE DOCKS FOR
STORAGE OF FREIGHT PENDING TRANSFER BETWEEN FREIGHT CARS AND CARGO
VESSELS; HANDLING REFERS TO THE UNLOADING OF GOODS FROM FREIGHT CARS
AND PLACING THEM ON THE DOCKS WITHIN REACH OF SHIP'S TACKLE  ...  ." 
UNITED STATES V. INTERSTATE COMMERCE COMMISSION, 91 U.S. APP. D.C. 178,
AT 182, 198 F.2D 958, AT 962.  SEE WHARFAGE CHARGES AT ATLANTIC AND
GULF PORTS, 157 I.C.C. 663, 672. 

FN2  "IT IS MADE THE DUTY OF ALL COMMON CARRIERS SUBJECT TO THE
PROVISIONS OF THIS CHAPTER TO ESTABLISH, OBSERVE, AND ENFORCE JUST AND
REASONABLE CLASSIFICATIONS OF PROPERTY FOR TRANSPORTATION, WITH
REFERENCE TO WHICH RATES, TARIFFS, REGULATIONS, OR PRACTICES ARE OR MAY
BE MADE OR PRESCRIBED, AND JUST AND REASONABLE REGULATIONS AND
PRACTICES AFFECTING CLASSIFICATIONS, RATES, OR TARIFFS  ... WHICH MAY
BE NECESSARY OR PROPER TO SECURE THE SAFE AND PROMPT RECEIPT, HANDLING,
TRANSPORTATION, AND DELIVERY OF PROPERTY SUBJECT TO THE PROVISIONS OF
THIS CHAPTER UPON JUST AND REASONABLE TERMS, AND EVERY UNJUST AND
UNREASONABLE CLASSIFICATION, REGULATION, AND PRACTICE IS PROHIBITED AND
DECLARED TO BE UNLAWFUL."  49 U.S.C. SEC. 1(6). 

"IF ANY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS CHAPTER
SHALL, DIRECTLY OR INDIRECTLY, BY ANY SPECIAL RATE, REBATE, DRAWBACK,
OR OTHER DEVICE, CHARGE, DEMAND, COLLECT, OR RECEIVE FROM ANY PERSON OR
PERSONS A GREATER OR LESS COMPENSATION FOR ANY SERVICE RENDERED OR TO
BE RENDERED, IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY, SUBJECT
TO THE PROVISIONS OF THIS CHAPTER, THAN IT CHARGES, DEMANDS, COLLECTS,
OR RECEIVES FROM ANY OTHER PERSON OR PERSONS FOR DOING FOR HIM OR THEM
A LIKE AND CONTEMPORANEOUS SERVICE IN THE TRANSPORTATION OF A LIKE KIND
OF TRAFFIC UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS,
SUCH COMMON CARRIER SHALL BE DEEMED GUILTY OF UNJUST DISCRIMINATION,
WHICH IS PROHIBITED AND DECLARED TO BE UNLAWFUL."  49 U.S.C. SEC. 2. 

"IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF THIS CHAPTER TO MAKE, GIVE, OR CAUSE ANY UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON, COMPANY,
FIRM, CORPORATION, ASSOCIATION, LOCALITY, PORT, PORT DISTRICT, GATEWAY,
TRANSIT POINT, REGION, DISTRICT, TERRITORY, OR ANY PARTICULAR
DESCRIPTION OF TRAFFIC, IN ANY RESPECT WHATSOEVER; OR TO SUBJECT  ...
ANY PARTICULAR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER  ...  ."  49 U.S.C.
SEC. 3(1). 

AS SECS 1(6), 2 AND 3(1) OF THE ACT ONLY ARE MATERIAL ON THIS APPEAL,
THEY ALONE ARE QUOTED IN PERTINENT PART. 

FN3  NO REPARATIONS WERE REQUESTED IN THIS PROCEEDING.  HOWEVER, AS
THE GOVERNMENT INDICATES, IF THE RAILROADS' REFUSAL TO PAY FOR WHARFAGE
AND HANDLING IS HELD TO BE A VIOLATION OF THE ACT, THE GOVERNMENT MAY
DEDUCT THE PRIOR "OVERPAYMENTS" FROM FUTURE SUMS DUE THE RAILROADS. 
SEE 49 U.S.C. SEC. 66. 

FN4  SEE 289 I.C.C., AT 61. 

FN5  THEY CAN ASSUME SUCH AND SIMILAR ACCESSORIAL SERVICES BY TARIFFS
APPROVED BY THE COMMISSION AS FAIR.  SEE BALTIMORE & OHIO R. CO. V.
UNITED STATES, 305 U.S. 507, 524.  IT IS DISCRIMINATION OR UNFAIRNESS
IN THE TARIFFS THAT CALLS FOR CORRECTION.  UNITED STATES V. UNITED
STATES SMELTING CO., 339 U.S. 186, 194-197.  SUCH DETERMINATIONS ARE ON
A CASE-BY-CASE BASIS.  SEE, E.G., UNITED STATES V. WABASH R. CO., 321
U.S. 403. 

FN6  IT CALLED FOR PERFORMANCE OF "ALL TERMINAL AND PIER WAREHOUSE
INTRANSIT STORAGE SERVICES EXCLUDING PHYSICAL PLANT FACILITIES (PIERS,
WAREHOUSES, ETC.); ALL CHECKING AND CLERKING SERVICES IN CONNECTION
THEREWITH; ALL POLICING (SWEEPING AND CLEANING) SERVICES; AND SUCH
OTHER TERMINAL SERVICES (EXCLUDING VESSEL CHECKING AND STEVEDORING;
WATCHMEN AND GUARD SERVICE; UTILITIES AND MAINTENANCE OF PREMISES
SERVICE) AS MAY BE DESIGNATED HEREIN, AND, IN CONNECTION THEREWITH,
... THE PERFORMANCE OF ALL THE DUTIES OF A TERMINAL OPERATOR IN SUCH
AREAS OF THE NORFOLK ARMY BASE OR AT ANY PIER IN OR ABOUT THE HAMPTON
ROADS HARBOR AREA AS MAY BE DESIGNATED BY THE CONTRACTING OFFICER  ...
." 

FN7  "STATEMENT OF EXCERPTS FROM PENNA.  R.R. TARIFF ICC 3007,
SETTING FORTH THE REGULATIONS AND THE COMPENSATION WHICH THE PENNA. 
R.R. WILL PAY TO THE NORFOLK TERMINALS DIVISION OF STEVENSON & YOUNG,
INC., FOR WHARFAGE FACILITIES FURNISHED AND HANDLING SERVICES PERFORMED
AT NORFOLK, VA.

                   "RULE 47. 

"  ...  WHARFAGE AND HANDLING CHARGES PUBLISHED IN NORFOLK AND
PORTSMOUTH BELT LINE RAILROAD COMPANY TARIFF NO. 6-J, I.C.C. 105, WILL
BE INCLUDED IN THE FREIGHT RATE TO OR FROM NORFOLK, VA., ON EXPORT,
IMPORT, INTERCOASTAL AND COASTWISE FREIGHT TRAFFIC, ANY QUANTITY,  ...
SUBJECT TO THE FOLLOWING CONDITIONS: 

     *         * *         *         * 

"(B)  WHEN RECEIPT FROM OR DELIVERY TO VESSEL IS IN RAIL SERVICE OVER
WHARF PROPERTIES OWNED OR LEASED BY NORFOLK TERMINALS DIVISION OF
STEVENSON & YOUNG, INC., AND OPERATED BY NORFOLK TERMINALS DIVISION OF
STEVENSON & YOUNG, INC., AS A PUBLIC TERMINAL FACILITY OF THE RAIL
CARRIERS. 

ON JANUARY 1, 1952, THE ABOVE RULE (B) WAS CHANGED.  AS THE CHANGE
STRENGTHENED THE TARIFF IN FAVOR OF THE RAILROADS, IT IS NOT QUOTED. 
SEE 289, I.C.C., AT 59. 

     *         *   *         *         *

  "COMPENSATION. 

"THE PENNSYLVANIA RAILROAD COMPANY WILL PAY TO NORFOLK TERMINALS
DIVISION OF STEVENSON & YOUNG, INC., AS ITS AGENT, FOR WHARFAGE
FACILITIES FURNISHED AND HANDLING SERVICES PERFORMED ON TRAFFIC
DESCRIBED AND CONFORMING TO THE CONDITIONS SPECIFIED ABOVE,
COMPENSATION IN THE FOLLOWING AMOUNTS IN CENTS PER 100 POUNDS, EXCEPT
AS OTHERWISE PROVIDED. 

                                      WHARFAGE   HANDLING 

"(GENERALLY)                                   1 1/4             3
3/4 OR 75 CENTS

                                          PER TON

                          (THERE WERE EXCEPTIONS) 

"(1)(A)  HANDLING CHARGES WILL NOT BE ABSORBED ON FREIGHT IN OPEN
CARS, EXCEPT ON LUMBER,  ...  . 

"(B)  WHEN STOWING IN OPEN CARS IS REQUIRED, HANDLING CHARGE OF 1/2
CENT PER 100 POUNDS OR 10 CENTS PER 2000 POUNDS WILL BE ABSORBED ON
LUMBER, ALL KINDS  ...  . 

"(2)(A)  WHARFAGE AND/OR HANDLING CHARGES WILL NOT BE ABSORBED ON
FREIGHT ACCORDED LITERAGE, OR ON GRAIN OR ANY OTHER INBOUND OR OUTBOUND
TRAFFIC MILLED, MIXED, MALTED OR STORED IN TRANSIT AT THE WHARF
PROPERTIES OPERATED BY NORFOLK TERMINALS DIVISION OF STEVENSON & YOUNG,
INC., OR NUMEROUS OTHER WAREHOUSES AND TERMINALS. 

"(B)  IN ALL OTHER RESPECTS ON EXPORT, IMPORT, INTERCOASTAL AND
COASTWISE TRAFFIC, THE WHARFAGE, HANDLING, STORAGE AND/OR OTHER CHARGES
APPLICABLE AT THE WHARF PROPERTIES OPERATED BY NORFOLK TERMINALS
DIVISION OF STEVENSON & YOUNG, INC., OR NUMEROUS OTHER WAREHOUSES AND
TERMINALS WILL BE IN ADDITION TO THE RATE TO AND FROM NORFOLK, VA. OR
PORTSMOUTH, VA., AS THE CASE MAY BE, PUBLISHED IN TARIFFS LAWFULLY ON
FILE WITH THE INTERSTATE COMMERCE COMMISSION." 

FN8  SEE UNITED STATES V. ABERDEEN & ROCKFISH R. CO., 289 I.C.C., AT
61.  IT SEEMS CLEAR THAT SUCH AN ATTACK COULD BE MADE IF PRESENT
CONDITIONS JUSTIFIED A RE-EXAMINATION.  THE WAR DEPARTMENT ATTACKED THE
PRACTICE IN 1921 BUT ITS OBJECTION WAS OVERRULED BY THE I.C.C. IN 1929
AFTER A THOROUGH INVESTIGATION IN A 6-5 VOTE.  WHARFAGE CHARGES AT
ATLANTIC AND GULF PORTS, 157 I.C.C. 663, 678-686.  SEPARATION WAS
SOUGHT LARGELY TO FORCE THE RAILROADS TO INCREASE TERMINAL CHARGES SO
THAT COMPETITIVE MUNICIPAL AND OTHER NONRAILROAD WHARFINGERS MIGHT
EXPAND TO DEVELOP BETTER PORT FACILITIES.  THE COMMISSION REACHED THE
CONCLUSION THAT SUCH SEPARATION WAS INADVISABLE, AS THERE WAS NO
EVIDENCE OF INJURY FROM SUCH PRACTICE.    "THE CARRIERS AFFORD PORT
FACILITIES IN COMPETITION WITH EACH OTHER AT THE PORTS AND A
COMPETITIVE CONDITION EXISTS WHICH CAN NOT BE ELIMINATED BY THE MERE
SEGREGATION OF UNIFORM PORT CHARGES.  IF THE PORT CHARGES WERE UNIFORM
AT ALL PORTS THE CARRIERS STILL COULD MEET COMPETITION BY SHRINKING
THEIR LINE-HAUL RATES.  IF THE PORT CHARGES WERE DIFFERENT AT EACH PORT
THE CARRIERS HAVING THE LARGER CHARGE COULD SHRINK THEIR LINE-HAUL
RATES SUFFICIENTLY TO OFFSET THE LARGER PORT CHARGE, AND THE REAL
SUBSTANCE OF THE PRESENT SHIP-SIDE RATES, WHERE THEY EXIST, WOULD BE
REESTABLISHED."  ID., AT 684. 

IT WAS THE SENSITIVITY OF THE FOREIGN IMPORTERS AND DOMESTIC PORTS TO
RATES SO STATED THAT LED TO THIS CONCLUSION.  IN THE HIGHLY COMPETITIVE
RAILWAY NETWORK, EXPORT TRAFFIC IS AN IMPORTANT FACTOR TO THE CARRIERS
AND THE PORTS.  COSTS OF PORT HANDLING VARY WIDELY, 157 I.C.C., AT
673.  SUCH VARIATIONS ARE NOW ABSORBED IN THE PRACTICE OF QUOTING
SHIPSIDE DELIVERY IN TARIFFS. 

FN9  SUCH AN EXCEPTION IS BEYOND THE REQUIREMENTS OF SEC. 6(8) OF THE
ACT THAT PROVIDES FOR PREFERENCE AND PRECEDENCE FOR UNITED STATES
SHIPMENTS IN EMERGENCIES. 

FN10  THIS CONCLUSION WAS AMPLY SUPPORTED BY TESTIMONY OF A
GOVERNMENT WITNESS, THE COMMANDING OFFICER, HAMPTON ROADS, PORT OF
EMBARKATION: 

"ONLY SUCH PERSONNEL HAS THE REQUISITE TRAINING IN THE INTRICATE
NOMENCLATURE PERTAINING TO THE ITEMS AND TO THE DOCUMENTATION REQUIRED
IN CONNECTION WITH THE PROPER LOADING AND DISPATCHING OF VESSELS. 

"A VAST AMOUNT OF PRE-STOWAGE PLANNING OF VESSELS IN A PORT OF
EMBARKATION MUST PRECEDE THE LABOR OF ACTUAL LOADING.  PRECISE
KNOWLEDGE OF OVERSEAS REQUIREMENTS MUST BE AVAILABLE.  THEREFORE,
CONTROLS REQUIRED TO BE EXERCISED OF ALL SHIPMENTS MUST BE ABSOLUTE. 
THESE BEGIN WHEN FREIGHT IS ORDERED SHIPPED FROM POINTS OF ORIGIN AND
CONTINUE UNTIL THE VARIOUS COMMODITIES REACH THEIR FINAL DESTINATION
OVERSEAS." 

FN11  THE GOVERNMENT'S REQUEST FOR EXPORT RATES ON ITS WAR SHIPMENTS
WAS GRANTED BY THE RAILROADS SO THAT COMMERCIAL AND GOVERNMENT EXPORT
FREIGHT HAD THE SAME RATES.  CF. WAR MATERIALS REPARATION CASES, 294
I.C.C. 5.  THIS WAS A SUBSTANTIAL CONCESSION BY THE RAILROADS, CONTRARY
TO THEIR TARIFFS, AND DONE ONLY BECAUSE OF SEC. 22 OF THE INTERSTATE
COMMERCE ACT, 49 U.S.C., ALLOWING CONCESSIONS TO THE UNITED STATES. 
289 I.C.C., AT 63.  THE RAILROADS HAVE ALSO SPOTTED CARS FOR THE ARMY
AFTER DELIVERY IN THE STORAGE YARDS WITHOUT EXTRA CHARGE.  OTHER
SHIPPERS WOULD BE CHARGED FOR SUCH SERVICE.  289 I.C.C., AT 55.  SEE
UNITED STATES V. AMERICAN TIN PLATE CO., 301 U.S. 402.  SUCH RELAXATION
OF POSSIBLE ADDITIONAL CHARGES BY THE RAILROADS DOES NOT DECIDE THE
ARMY'S CLAIM FOR ALLOWANCES FOR HANDLING.  THE COMMISSION DID TAKE THE
CONCESSIONS INTO CONSIDERATION, HOWEVER, AS TO THE FAIRNESS OF THE
REFUSAL TO GRANT THE CLAIMED ALLOWANCES.  289 I.C.C., AT 64. 

FN12  ALTHOUGH THE GOVERNMENT SEEKS ONLY AN ALLOWANCE OF THE
PUBLISHED CHARGE ABSORBED BY THE CARRIERS OF $1.00 PER TON, THE KIND OF
SERVICE IT REQUIRES IN ITS AREA IS ILLUSTRATED BY THE FACT THAT IT PAYS
$2.87 FOR HANDLING.  289 I.C.C., AT 61 ET SEQ. 

FN13  THE ARMY'S RELIANCE ON ATCHISON, T.&S.F.R. CO. V. UNITED
STATES, 232 U.S. 199, IS MISPLACED.   THERE THIS COURT SUSTAINED THE
COMMISSION IN GRANTING A SHIPPER OF FRUIT THE RIGHT TO PRECOOL THE CAR
AND CONTENTS, ALTHOUGH THE CARRIERS WERE IN A POSITION TO REFRIGERATE,
THOUGH NOT IN THE BETTER WAY.  AS THE CARRIERS WERE NOT IN A POSITION
TO PERFORM THE SERVICE PROPERLY, THEY COULD NOT BY A TARIFF DENY THE
CONSIGNOR SUCH RIGHT. 

FN14  "NOTHING IN THIS CHAPTER SHALL PREVENT THE  ...  HANDLING OF
PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES  ...  ."  49
U.S.C. SEC. 22. 

FN15  "IF IT WERE NOT FOR THE FACT THAT THE GOVERNMENT HAS REASONS
FOR HANDLING ITS WATER-BORNE TRAFFIC DIFFERENTLY FROM COMMERCIAL
SHIPPERS, THERE WOULD BE NO REASON WHY THE GOVERNMENT SHOULD NOT USE
PUBLIC PIERS LIKE OTHER SHIPPERS.  THERE IS NO QUESTION BUT THAT A
PRIVATE SHIPPER OPERATING HIS OWN PIER AND HANDLING HIS OWN TRAFFIC IN
A MANNER SIMILAR TO THE OPERATION OF THE NORFOLK ARMY BASE TODAY WOULD
NOT BE ENTITLED TO THE PORT RATES." 

289 I.C.C., AT 63:  "EVIDENCE PRESENTED BY THE DEFENDANTS SUPPORTS
THEIR POSITION THAT IT IS NOT UNREASONABLE TO REFUSE TO EXTEND WHARFAGE
AND HANDLING SERVICES TO TRAFFIC HANDLED OVER PRIVATE PIERS WHEN THE
SHIPPER DOES NOT WISH TO USE ADEQUATE FACILITIES OF THE DEFENDANTS. 
THE DEFENDANTS SERVING THE NORFOLK PORT AREA HAVE HAD AVAILABLE PORT
FACILITIES MORE THAN AMPLE TO HANDLE ALL THE MILITARY TRAFFIC MOVING
OVER THE ARMY BASE AT NORFOLK, AT LEAST ON AND SINCE MAY 1, 1951." 

FN16  49 U.S.C. SEC. 2, N. 2, SUPRA. 

FN17  A TYPICAL TARIFF READS: 

"DELIVERY OF A LINE-HAUL CARLOAD SHIPMENT DESTINED TO SMELTER AT
LEADVILLE, COLO., WILL INCLUDE MOVEMENT WITHIN SMELTER PLANT OVER TRACK
SCALES, TO AND FROM THAW-HOUSE, TO AND FROM A SMELTER SAMPLER OR TO AND
FROM A COMBINATION SAMPLER AND CONCENTRATOR TO A DESIGNATED UNLOADING
POINT INDICATED BY THE SAMPLING COMPANY."  339 U.S., AT 196.  SEE ALSO
UNITED STATES SMELTING & REFINING CO., 266 I.C.C. 476, 478. 

FN18  L.T. BARRINGER & CO. V. UNITED STATES, 319 U.S. 1, 6-7: 

"WHETHER THOSE CIRCUMSTANCES AND CONDITIONS ARE SUFFICIENTLY
DISSIMILAR TO JUSTIFY A DIFFERENCE IN RATES, OR WHETHER, ON THE OTHER
HAND, THE DIFFERENCE IN RATES CONSTITUTES AN UNJUST DISCRIMINATION
BECAUSE BASED PRIMARILY ON CONSIDERATIONS RELATING TO THE IDENTITY OR
COMPETITIVE POSITION OF THE PARTICULAR SHIPPER RATHER THAN TO
CIRCUMSTANCES ATTENDING THE TRANSPORTATION SERVICE, IS A QUESTION OF
FACT FOR THE COMMISSION'S DETERMINATION.  HENCE ITS CONCLUSION THAT IN
VIEW OF ALL THE RELEVANT FACTS AND CIRCUMSTANCES A RATE OR PRACTICE
EITHER IS OR IS NOT UNJUSTLY DISCRIMINATORY WITHIN THE MEANING OF SEC.
2 OF THE ACT WILL NOT BE DISTURBED HERE UNLESS WE CAN SAY THAT ITS
FINDING IS UNSUPPORTED BY EVIDENCE OR WITHOUT RATIONAL BASIS, OR RESTS
ON AN ERRONEOUS CONSTRUCTION OF THE STATUTE." 

FOR THE SAME REASONS, IN BALTIMORE & OHIO R. CO. V. UNITED STATES,
305 U.S. 507, 526, DEALING WITH STORAGE OF GOODS IN TRANSIT, AND UNITED
STATES V. AMERICAN TIN PLATE CO., 301 U.S. 402, 407-408, DEALING WITH
POST-LINE-HAUL SWITCHING PRACTICES, THIS COURT HAS UPHELD THE
COMMISSION'S DETERMINATION OF UNFAIRNESS VIS-A-VIS OTHER SHIPPERS AND
ITS PROHIBITORY ORDERS.  SEE SEABOARD AIR LINE R. CO. V. UNITED STATES,
254 U.S. 57; MERCHANTS WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501;
UNITED STATES V. WABASH R. CO., 321 U.S. 403, 410. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE CONCURS, DISSENTING. 

FROM THE VERY BEGINNING THE INTERSTATE COMMERCE ACT HAS MADE IT
UNLAWFUL FOR RAILROADS TO DISCRIMINATE BY CHARGING SOME SHIPPERS MORE
THAN OTHERS FOR CARRYING THE SAME KIND OF FREIGHT THE SAME DISTANCE. 
THE PROVISIONS OF THE ACT MAKE IT CLEAR THAT THE BAN ON SUCH
DISCRIMINATION CANNOT BE EVADED BY ANY CONTRIVANCE OR GUISE THAT
ACCOMPLISHES THE PROHIBITED END.  IN THE PRESENT CASE THE UNDISPUTED
EVIDENCE, AS WELL AS THE INTERSTATE COMMERCE COMMISSION'S FINDINGS,
CONVINCES ME BEYOND DOUBT THAT THE RAILROADS ARE SUBJECTING THE UNITED
STATES, AS A SHIPPER, TO PRECISELY THE KIND OF DISCRIMINATION WHICH THE
ACT PROHIBITS.  WHEN THE MASS OF VERBIAGE WHICH HAS BEFOGGED THIS CASE
IS STRIPPED AWAY, THE ISSUES ARE NOT COMPLEX AND NO EXPERT GUIDANCE IS
NEEDED FOR THEIR PROPER RESOLUTION. 

THE GOVERNMENT OWNS SEVERAL PIERS AT NORFOLK, VIRGINIA WHICH ARE
CONNECTED BY TRACKS WITH THE MAIN LINES OF CERTAIN MAJOR RAILROADS. 
STORAGE SPACE IS PROVIDED ON THE PIERS FOR FREIGHT.  FOR MANY YEARS THE
PIERS WERE LEASED TO A PRIVATE TERMINAL OPERATOR.  THIS OPERATOR HAS A
CONTRACT WITH THE RAILROADS HAULING TO THE PIERS TO PERFORM HANDLING
AND WHARFAGE SERVICES WITH RESPECT TO THEIR FREIGHT.  THE RAILROADS PAY
THE OPERATOR $1 PER TON FOR THESE SERVICES.  THEY DO NOT CHARGE
SHIPPERS SEPARATELY FOR THIS HANDLING AND WHARFAGE BUT INSTEAD INCLUDE
THE COST WITH THE TRANSPORTATION CHARGES IN A SINGLE LINE-HAUL RATE. 

SHIPMENTS BY THE UNITED STATES THROUGH THE PIERS WERE HANDLED EXACTLY
THE SAME AS ANY OTHER SHIPMENT.  THE OPERATOR, ACTING UNDER CONTRACT
WITH THE RAILROADS, PERFORMED THE NECESSARY UNLOADING AND STORAGE; THE
RAILROADS PAID IT $1 PER TON FOR THESE SERVICES; AND THE GOVERNMENT
PAID THE RAILROADS THE SINGLE RATE COVERING BOTH TRANSPORTATION AND
PIER SERVICES.  THE GOVERNMENT WAS NOT REQUIRED TO PAY ANYTHING IN
ADDITION TO THIS SINGLE RATE. 

IN 1951, HOWEVER, WITH THE OUTBREAK OF THE KOREAN CONFLICT, THE
GOVERNMENT FOUND IT NECESSARY TO OPERATE DIRECTLY CERTAIN PORTIONS OF
THE PIERS IN ORDER TO FACILITATE THE SHIPMENT OF MILITARY SUPPLIES. 
THE GOVERNMENT HIRED THE SAME OPERATOR WHO WAS ACTING FOR THE RAILROADS
TO PERFORM THE SAME SERVICES IN HANDLING GOVERNMENT SHIPMENTS AS HE HAD
BEFORE.  THE SOLE DIFFERENCE WAS THAT THE OPERATOR ACTED UNDER CONTRACT
WITH THE GOVERNMENT AND WAS PAID BY IT RATHER THAN BY THE RAILROADS. 
THE RAILROADS CONTINUED TO CHARGE THE SAME LINE-HAUL RATE AS BEFORE,
HOWEVER, ON GOVERNMENT SHIPMENTS.  THE GOVERNMENT REQUESTED THAT THE
RAILROADS CONTINUE TO PAY THE $1 PER TON FOR HANDLING AND WHARFAGE OF
ITS SHIPMENTS.  THE RAILROADS REFUSED.  THE NET RESULT IS THAT THE
GOVERNMENT RECEIVES LESS SERVICES FROM THE RAILROADS THAN OTHER
SHIPPERS ALTHOUGH IT PAYS THE SAME RATE.  OR STATED IN A MORE FAMILIAR
MANNER IT IS COMPELLED TO PAY MORE THAN OTHER SHIPPERS FOR THE SAME
TRANSPORTATION EVEN THOUGH THEY ALL SHIP THE SAME KIND OF FREIGHT FROM
THE SAME POINTS TO THE SAME PIER. 

NOTHING IN THE RECORD BELOW OR IN THE ARGUMENTS PRESENTED TO US
JUSTIFIES THIS PLAIN DISCRIMINATION.  THERE IS NO FINDING, NOR EVEN ANY
INDICATION, THAT IT COSTS THE RAILROADS ONE PENNY MORE TO TRANSPORT
FREIGHT TO THE PORTIONS OF THE PIER OPERATED BY THE GOVERNMENT THAN TO
THE IMMEDIATELY ADJACENT PARTS OF THE PIER OPERATED BY THEIR AGENT. 
AND THE MERE FACT THAT A DISCRIMINATORY RATE IS EMBEDDED IN A TARIFF
DOES NOT MAKE IT LEGAL.   IT IS CLAIMED THAT THE RAILROADS CAN
ESTABLISH A GENERAL RULE THAT THEY WILL NOT PAY FOR WHARFAGE AND
HANDLING COSTS AT PRIVATE PIERS.  THIS IS UNDOUBTEDLY TRUE, BUT IT DOES
NOT FOLLOW THAT THEY CAN INCLUDE WITHIN THE LINE-HAUL RATE CHARGES FOR
HANDLING SERVICES AT SUCH PIERS THAT THE RAILROADS DO NOT PERFORM. 
UNDER ANY REALISTIC APPRAISAL, THE RAILROADS' COSTS FOR HANDLING AND
WHARFAGE SERVICES IN THE PRESENT SITUATION ARE INCLUDED AS A PART OF
THEIR LINE-HAUL RATE AND ARE IN NO SENSE A "FREE SERVICE."  THE
GOVERNMENT IS COMPELLED TO PAY THIS RATE TO GET ITS GOODS TRANSPORTED. 
BUT, AS THE INTERSTATE COMMERCE COMMISSION EXPRESSLY FOUND, WARTIME
CONDITIONS MAKE IT WHOLLY IMPRACTICAL FOR THE GOVERNMENT IN SHIPPING
CERTAIN MILITARY GOODS TO USE THE WHARFAGE AND HANDLING SERVICES
PROVIDED BY THE RAILROADS UNDER THIS RATE.  THE GOVERNMENT IS ENTITLED
TO RECOVER THAT PORTION OF THE "LINE-HAUL" RATE WHICH IT IS CHARGED FOR
SERVICES THAT IT CANNOT USE.  THAT IS ALL IT CLAIMS.  THERE IS NO
REASON WHY THE RAILROADS SHOULD BE ALLOWED TO OPERATE IN A MANNER THAT
EXACTS A TRANSPORTATION CHARGE FROM ALL SHIPPERS FOR BENEFITS THAT SOME
CAN ENJOY AND OTHERS, ALTHOUGH IN EXACTLY THE SAME SITUATION, CANNOT. 
AS THIS COURT SAID IN UNION PACIFIC R. CO. V. UPDIKE GRAIN CO., 222
U.S. 215, 220, "A RULE APPARENTLY FAIR ON ITS FACE AND REASONABLE IN
ITS TERMS MAY, IN FACT, BE UNFAIR AND UNREASONABLE IF IT OPERATES SO AS
TO GIVE ONE AN ADVANTAGE OF WHICH ANOTHER SIMILARLY SITUATED CANNOT
AVAIL HIMSELF." 

I WOULD REVERSE THE JUDGEMENT BELOW. 
..END :
















BROWNELL V. TOM WE SHUNG 352 U.S. 180 


NO. 43.  ARGUED NOVEMBER 13, 1956 - DECIDED DECEMBER 17, 1956 - 97 U.S.
APP. D.C. 25, 227 F.2D 40, AFFIRMED. 


UNDER SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT, AN ALIEN WHOSE
EXCLUSION HAS BEEN ORDERED ADMINISTRATIVELY UNDER THE IMMIGRATION AND
NATIONALITY ACT OF 1952, AND WHO NEITHER CLAIMS CITIZENSHIP NOR HOLDS A
CERTIFICATE OF IDENTITY ISSUED UNDER SEC. 360(B) OF THAT ACT, MAY
OBTAIN JUDICIAL REVIEW OF SUCH ORDER BY AN ACTION IN A FEDERAL DISTRICT
COURT FOR A DECLARATORY JUDGMENT.  PP. 181-186. 

1.  UNLESS THE IMMIGRATION AND NATIONALITY ACT OF 1952 IS TO THE
CONTRARY, EXCLUSION ORDERS MAY BE CHALLENGED EITHER BY HABEAS CORPUS
PROCEEDINGS OR BY DECLARATORY JUDGMENT ACTIONS UNDER THE ADMINISTRATIVE
PROCEDURE ACT.  PP. 182-184. 

2.  THE PROVISION OF SEC. 236(C) OF THE IMMIGRATION AND NATIONALITY
ACT OF 1952 THAT THE DECISION OF A SPECIAL INQUIRY OFFICER EXCLUDING AN
ALIEN FROM ADMISSION INTO THE UNITED STATES "SHALL BE FINAL UNLESS
REVERSED ON APPEAL TO THE ATTORNEY GENERAL" REFERS ONLY TO
ADMINISTRATIVE FINALITY, AND IT DOES NOT LIMIT CHALLENGES OF SUCH
DECISIONS TO HABEAS CORPUS PROCEEDINGS.  PP. 184-185. 

3.  THE CONCLUSION HERE REACHED IS IN FULL ACCORD WITH REPORTS MADE
TO CONGRESS BY THOSE SPONSORING AND MANAGING THE IMMIGRATION AND
NATIONALITY ACT OF 1952 ON THE FLOOR OF EACH HOUSE OF CONGRESS.  PP.
185-186. 

4.  WHETHER AN ALIEN SEEKS JUDICIAL REVIEW OF AN EXCLUSION ORDER BY A
HABEAS CORPUS PROCEEDING OR BY AN ACTION FOR A DECLARATORY JUDGMENT,
THE SCOPE OF THE REVIEW IS THAT OF EXISTING LAW.  P. 186. 

BROWNELL, ATTORNEY GENERAL, V. TOM WE SHUNG. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN SHAUGHNESSY V. PEDREIRO, 349 U.S. 48 (1955), WE HELD THAT AN
ALIEN, ORDERED DEPORTED BY THE ATTORNEY GENERAL UNDER THE PROVISIONS OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952, MIGHT TEST THE LEGALITY OF
SUCH ORDER IN A DECLARATORY JUDGMENT ACTION BROUGHT UNDER SEC.  10 OF
THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 243, 5 U.S.C. SEC. 1009. 
THE SOLE QUESTION TO BE DETERMINED HERE IS WHETHER THE LEGALITY OF AN
EXCLUSION ORDER ENTERED UNDER THE RELEVANT PROVISIONS OF THE SAME 1952
ACT MUST BE CHALLENGED BY HABEAS CORPUS, OR WHETHER IT MAY ALSO BE
REVIEWED BY AN ACTION FOR DECLARATORY JUDGMENT UNDER SEC. 10 OF THE
ADMINISTRATIVE PROCEDURE ACT.  THE COURT OF APPEALS HELD THE LATTER TO
BE AN APPROPRIATE REMEDY.  97 U.S. APP. D.C. 25, 227 F.2D 40.  WE
GRANTED CERTIORARI, 351 U.S. 905, BECAUSE OF THE IMPORTANCE OF THE
QUESTION IN THE ADMINISTRATION OF THE IMMIGRATION LAW.  WE CONCLUDE
THAT EITHER REMEDY IS AVAILABLE IN SEEKING REVIEW OF SUCH ORDERS.  THIS
MAKES IT UNNECESSARY FOR US TO PASS UPON OTHER QUESTIONS RAISED BY THE
PARTIES. 

SHUNG, A CHINESE ALIEN, PRESENTED HIMSELF AT SAN FRANCISCO ON
NOVEMBER 28, 1947, CLAIMING ADMISSION TO THE UNITED STATES UNDER THE
PROVISIONS OF THE WAR BRIDES ACT OF DECEMBER 28, 1945, 59 STAT. 659, 8
U.S.C. (1946 ED.)  SEC.  232.  HE TESTIFIED UNDER OATH THAT HE WAS THE
BLOOD SON OF AN AMERICAN CITIZEN WHO SERVED IN THE UNITED STATES ARMED
FORCES DURING WORLD WAR II.  IN JANUARY 1948 AND AGAIN IN FEBRUARY
1949, BOARDS OF SPECIAL INQUIRY HELD SHUNG INADMISSIBLE ON THE GROUND
THAT HE HAD NOT ESTABLISHED THE ALLEGED RELATIONSHIP.  THE BOARD OF
IMMIGRATION APPEALS AFFIRMED.  SHUNG FIRST SOUGHT JUDICIAL REVIEW OF
THIS ORDER BY A DECLARATORY JUDGMENT ACTION INSTITUTED BEFORE THE
EFFECTIVE DATE OF THE IMMIGRATION AND NATIONALITY ACT OF 1952.  HIS
COMPLAINT WAS DISMISSED ON THE GROUND THAT THE ORDER WAS VALID.  TOM WE
SHUNG V. MCGRATH, 103 F. SUPP. 507, AFF'D SUB NOM. TOM WE SHUNG V.
BROWNELL, 93 U.S. APP. D.C. 32, 207 F.2D 132.  WE VACATED THE JUDGMENT
AND REMANDED THE CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS
IT FOR LACK OF JURISDICTION, 346 U.S. 906, ON THE AUTHORITY OF HEIKKILA
V. BARBER, 345 U.S. 229 (1953), WHICH HELD THAT HABEAS CORPUS WAS THE
ONLY AVAILABLE REMEDY FOR TESTING DEPORTATION ORDERS UNDER THE
IMMIGRATION ACT OF 1917.  AFTER THE PASSAGE OF THE 1952 ACT, SHUNG
FILED THIS SUIT SEEKING REVIEW OF HIS EXCLUSION BY A DECLARATORY
JUDGMENT ACTION.  HE ASSERTS THAT OUR RULING IN PEDREIRO PERMITTING
DEPORTATION ORDERS UNDER THE 1952 ACT TO BE CHALLENGED BY DECLARATORY
ACTION REQUIRES A SIMILAR RESULT AS TO EXCLUSION ORDERS.  HOWEVER, THE
GOVERNMENT CONTENDS THAT THE PEDREIRO RULE DOES NOT APPLY IN EXCLUSION
CASES BECAUSE OF THE BASIC DIFFERENCES BETWEEN THOSE ACTIONS AND
DEPORTATION CASES.  THE GOVERNMENT ALSO URGES THAT THE LANGUAGE,
STATUTORY STRUCTURE, AND LEGISLATIVE HISTORY OF THE 1952 ACT SUPPORT
ITS CONTENTION. 

        I. 

AT THE OUTSET THE GOVERNMENT CONTENDS THAT CONSTITUTIONALLY AN ALIEN
SEEKING INITIAL ADMISSION INTO THE UNITED STATES IS IN A DIFFERENT
POSITION FROM THAT OF A RESIDENT ALIEN AGAINST WHOM DEPORTATION
PROCEEDINGS ARE INSTITUTED.  (FN1)  THIS, IT CONTENDS, PRECLUDES
GENERAL JUDICIAL REVIEW.  SHUNG ADMITS THESE SUBSTANTIVE DIFFERENCES
BUT COUNTERS THAT SUCH A DISTINCTION SHOULD BE WITHOUT SIGNIFICANCE
WHEN ALL THAT IS INVOLVED IS THE FORM OF JUDICIAL ACTION AVAILABLE, NOT
THE SCOPE OF REVIEW.  WE DO NOT BELIEVE THAT THE CONSTITUTIONAL STATUS
OF THE PARTIES REQUIRES THAT THE FORM OF JUDICIAL ACTION BE STRAIT
JACKETED.  NOR SHOULD THE FACT THAT IN ONE ACTION THE BURDEN IS ON THE
ALIEN WHILE IN THE OTHER IT MUST BE MET BY THE GOVERNMENT AFFORD BASIS
FOR DISCRIMINATION.  ADMITTEDLY, EXCLUDED ALIENS MAY TEST THE ORDER OF
THEIR EXCLUSION BY HABEAS CORPUS.  CITIZENSHIP CLAIMANTS WHO HOLD
"CERTIFICATES OF IDENTITY" ARE REQUIRED BY SEC. 360(C) OF THE 1952 ACT
(FN2) TO TEST THE VALIDITY OF THEIR EXCLUSION BY HABEAS CORPUS ONLY. 
RESPONDENT HERE NEITHER CLAIMS CITIZENSHIP NOR DID HE HOLD A
CERTIFICATE OF IDENTITY, AND SEC. 360(C) HAS NO BEARING ON THIS CASE. 
FOR A HABEAS CORPUS PROCEEDING THE ALIEN MUST BE DETAINED OR AT THE
LEAST BE IN TECHNICAL CUSTODY, AS THE GOVERNMENT PUTS IT.  ON THE OTHER
HAND, A DECLARATORY JUDGMENT ACTION REQUIRES NO SUCH BASIS AND THE
ODIUM OF ARREST AND DETENTION IS NOT PRESENT.  IT DOES NOT FOLLOW THAT
THE ABSENCE OF THIS CONDITION WOULD ENLARGE THE PERMISSIBLE SCOPE OF
REVIEW TRADITIONALLY PERMITTED IN EXCLUSION CASES.  THE SUBSTANTIVE LAW
GOVERNING SUCH ACTIONS WOULD REMAIN THE RULE OF DECISION ON THE MERITS
BUT THE FORM OF ACTION WOULD BE BY DECLARATORY JUDGMENT RATHER THAN
HABEAS CORPUS.  (FN3)  WE CONCLUDE THAT UNLESS THE 1952 ACT IS TO THE
CONTRARY, EXCLUSION ORDERS MAY BE CHALLENGED EITHER BY HABEAS CORPUS OR
BY DECLARATORY JUDGMENT ACTION. 

   II. 

THE GOVERNMENT INSISTS THAT CONGRESS HAS LIMITED SUCH CHALLANGES TO
HABEAS CORPUS ACTIONS BY CERTAIN LANGUAGE IN THE 1952 ACT.  IT ARGUES
THAT THE FINALITY CLAUSE OF THE ACT WITH RESPECT TO EXCLUSION (FN4)
LIMITS JUDICIAL REVIEW TO HABEAS CORPUS ONLY.  THE GIST OF THAT CLAUSE
AS TO DEPORTATION CASES IS THAT "THE DECISION OF THE ATTORNEY GENERAL
SHALL BE FINAL," (FN5) WHILE IN EXCLUSION PROCEEDINGS "THE DECISION OF
A SPECIAL INQUIRY OFFICER IS FINAL UNLESS REVERSED ON APPEAL TO THE
ATTORNEY GENERAL."  THE GOVERNMENT REASONS THAT THE LATTER CLAUSE
LIMITS REVIEW TO ADMINISTRATIVE APPEAL TO THE ATTORNEY GENERAL AND THAT
NO OTHER FORM OF REVIEW WAS INTENDED, ASIDE FROM HABEAS CORPUS, TO TEST
THE ALIEN'S EXCLUSION.  IT POINTS TO EXCEPTIONS THAT EVEN WITHHOLD
ADMINISTRATIVE REVIEW IN CERTAIN CLASSES OF CASES AS BOLSTERING ITS
POSITION.  IT IS TRUE THAT SUBSECTIONS (B) AND (D) OF SEC. 236 OF THE
1952 ACT DENY ANY ADMINISTRATIVE APPEAL ON TEMPORARY EXCLUSION IN
SECURITY CASES AS WELL AS IN THOSE WHERE THE ALIEN SUFFERS A MEDICAL
AFFLICTION OF CERTAIN TYPES.  BUT TO DARKEN THE MEANING OF THE WORD
"FINAL" AS USED BY CONGRESS BY GIVING IT CHAMELEONIC CHARACTERISTICS IS
TO INDULGE IN CHOPLOGIC.  IN FACT, THE REGULATIONS OF THE ATTORNEY
GENERAL SEEM TO GIVE "FINAL" THE SAME CONNOTATION WITH RESPECT TO
DEPORTATION AS DOES THE ACT WITH RESPECT TO EXCLUSION.  SEE 8 CFR, REV.
1952, SEC. 242.61(E).  FURTHERMORE, AS WE POINTED OUT IN PEDREIRO, SUCH
A "CUTTING OFF" OF JUDICIAL REVIEW "WOULD RUN COUNTER TO SEC. 10 AND
SEC. 12 OF THE ADMINISTRATIVE PROCEDURE ACT."  349 U.S., AT 51. 
"EXEMPTIONS FROM THE  ...  ADMINISTRATIVE PROCEDURE ACT ARE NOT LIGHTLY
TO BE PRESUMED," MARCELLO V. BONDS, 349 U.S. 302, 310 (1955), AND
UNLESS MADE BY CLEAR LANGUAGE OR SUPERSEDURE THE EXPANDED MODE OF
REVIEW GRANTED BY THAT ACT CANNOT BE MODIFIED.  WE THEREFORE CONCLUDE
THAT THE FINALITY PROVISION OF THE 1952 ACT IN REGARD TO EXCLUSION
REFERS ONLY TO ADMINISTRATIVE FINALITY. 

       III. 

THE GOVERNMENT ALSO POINTS TO CERTAIN TESTIMONY AT HEARINGS ON THE
BILL, AS WELL AS STATEMENTS MADE ON THE FLOOR IN DEBATE AT THE TIME OF
PASSAGE OF THE 1952 ACT, AS SUPPORTING ITS POSITION.  WE BELIEVE,
HOWEVER, THAT SENATE REPORT NO. 1137, 82 CONG., 2D SESS., (FN6) AND THE
STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE WHICH ACCOMPANIED
THE CONFERENCE REPORT, (FN7) REFLECT THE INTENTION OF THE CONGRESS IN
THIS REGARD.  THE SENATE REPORT, AFTER RECITING THAT A PROVISION
LIMITING "JUDICIAL REVIEW ONLY THROUGH THE WRIT OF HABEAS CORPUS" HAD
BEEN STRICKEN FROM THE BILL, STATED THAT SUCH ACTION WAS NOT INTENDED
TO "EXPAND THE SCOPE OF JUDICIAL REVIEW IN IMMIGRATION CASES BEYOND
THAT UNDER EXISTING LAW."  THE HOUSE MANAGERS REPORTED THAT AFTER
CONSIDERATION OF "THE PROBLEM OF JUDICIAL REVIEW" THEY WERE SATISFIED
THAT THE "PROCEDURES PROVIDED IN THE BILL  ... REMAIN WITHIN THE
FRAMEWORK AND THE PATTERN OF THE ADMINISTRATIVE PROCEDURE ACT.  THE
SAFEGUARD OF JUDICIAL PROCEDURE IS AFFORDED THE ALIEN IN BOTH EXCLUSION
AND DEPORTATION PROCEEDINGS."  WE BELIEVE THAT OUR INTERPRETATION OF
THE ACT IS IN FULL ACCORD WITH THESE SIGNIFICANT REPORTS MADE BY THOSE
SPONSORING AND MANAGING THE LEGISLATION ON THE FLOOR OF EACH HOUSE OF
THE CONGRESS. 

IT MAY BE THAT HABEAS CORPUS IS A FAR MORE EXPEDITIOUS REMEDY THAN
THAT OF DECLARATORY JUDGMENT, AS THE EXPERIENCE OF SHUNG MAY INDICATE. 
(FN8)  BUT THAT FACT MAY BE WEIGHED BY THE ALIEN AGAINST THE NECESSITY
OF ARREST AND DETENTION AFTER WHICH HE MAY MAKE HIS CHOICE OF THE FORM
OF ACTION HE WISHES TO USE IN CHALLENGING HIS EXCLUSION.  IN EITHER
CASE, THE SCOPE OF THE REVIEW IS THAT OF EXISTING LAW.  AFFIRMED. 

FN1  SINCE EKIU V. UNITED STATES, 142 U.S. 651 (1892), THIS COURT HAS
HELD THAT IN EXCLUSION CASES INVOLVING INITIAL ENTRY "THE DECISIONS OF
EXECUTIVE OR ADMINISTRATIVE OFFICERS, ACTING WITHIN POWERS EXPRESSLY
CONFERRED BY CONGRESS, ARE DUE PROCESS OF LAW."  AT P. 660. 
NEVERTHELESS, DUE PROCESS HAS BEEN HELD IN CASES SIMILAR IN FACTS TO
THE ONE HERE INVOLVED TO INCLUDE A FAIR HEARING AS WELL AS CONFORMITY
TO STATUTORY GROUNDS.  ON THE OTHER HAND, "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."  KWONG HAI CHEW V. COLDING, 344 U.S. 590, 596
(1953). 

FN2  SECTION 360(C), 66 STAT. 273, 8 U.S.C. SEC. 1503, PROVIDES IN
PART: 

"A PERSON WHO HAS BEEN ISSUED A CERTIFICATE OF IDENTITY UNDER THE
PROVISIONS OF SUBSECTION (B), AND WHILE IN POSSESSION THEREOF, MAY
APPLY FOR ADMISSION TO THE UNITED STATES AT ANY PORT OF ENTRY, AND
SHALL BE SUBJECT TO ALL THE PROVISIONS OF THIS ACT RELATING TO THE
CONDUCT OF PROCEEDINGS INVOLVING ALIENS SEEKING ADMISSION TO THE UNITED
STATES.  A FINAL DETERMINATION BY THE ATTORNEY GENERAL THAT ANY SUCH
PERSON IS NOT ENTITLED TO ADMISSION TO THE UNITED STATES SHALL BE
SUBJECT TO REVIEW BY ANY COURT OF COMPETENT JURISDICTION IN HABEAS
CORPUS PROCEEDINGS AND NOT OTHERWISE." 

FN3  WE DO NOT SUGGEST, OF COURSE, THAT AN ALIEN WHO HAS NEVER
PRESENTED HIMSELF AT THE BORDERS OF THIS COUNTRY MAY AVAIL HIMSELF OF
THE DECLARATORY JUDGMENT ACTION BY BRINGING THE ACTION FROM ABROAD. 

FN4  SECION 236(C), 66 STAT. 200, 8 U.S.C. SEC. 1226(C): 

"(C)  EXCEPT AS PROVIDED IN SUBSECTIONS (B) OR (D), IN EVERY CASE
WHERE AN ALIEN IS EXCLUDED FROM ADMISSION INTO THE UNITED STATES, UNDER
THIS ACT OR ANY OTHER LAW OR TREATY NOW EXISTING OR HEREAFTER MADE, THE
DECISION OF A SPECIAL INQUIRY OFFICER SHALL BE FINAL UNLESS REVERSED ON
APPEAL TO THE ATTORNEY GENERAL." 

FN5  SECTION 242(B), 66 STAT. 210, 8 U.S.C. SEC. 1252(B) PROVIDES IN
PART: 

"IN ANY CASE IN WHICH AN ALIEN IS ORDERED DEPORTED FROM THE UNITED
STATES UNDER THE PROVISIONS OF THIS ACT, OR OF ANY OTHER LAW OR TREATY,
THE DECISION OF THE ATTORNEY GENERAL SHALL BE FINAL  ... ." 

FN6  "EXCLUSION PROCEDURES  IN BOTH S. 3455 AND S. 716, THE
PREDECESSOR BILLS, IT WAS PROVIDED THAT ADMINISTRATIVE DETERMINATIONS
OF FACT AND THE EXERCISE OF ADMINISTRATIVE DISCRETION SHOULD NOT BE
SUBJECT TO JUDICIAL REVIEW AND THAT THE DETERMINATIONS OF LAW SHOULD BE
SUBJECT TO JUDICIAL REVIEW ONLY THROUGH THE WRIT OF HABEAS CORPUS. 
THIS LANGUAGE IS OMITTED FROM THE INSTANT BILL.  THE OMISSION OF THE
LANGUAGE IS NOT INTENDED TO GRANT ANY REVIEW OF DETERMINATIONS MADE BY
CONSULAR OFFICERS, NOR TO EXPAND JUDICIAL REVIEW IN IMMIGRATION CASES
BEYOND THAT UNDER EXISTING LAW."  AT P. 28. 

FN7  "(2)  HAVING EXTENSIVELY CONSIDERED THE PROBLEM OF JUDICIAL
REVIEW, THE CONFEREES ARE SATISFIED THAT PROCEDURES PROVIDED IN THE
BILL, ADAPTED TO THE NECESSITIES OF NATIONAL SECURITY AND THE
PROTECTION OF ECONOMIC AND SOCIAL WELFARE OF THE CITIZENS OF THIS
COUNTRY, REMAIN WITHIN THE FRAMEWORK AND THE PATTERN OF THE
ADMINISTRATIVE PROCEDURE ACT.  THE SAFEGUARD OF JUDICIAL PROCEDURE IS
AFFORDED THE ALIEN IN BOTH EXCLUSION AND DEPORTATION PROCEEDINGS." 
H.R. REP. NO. 2096, 82D CONG., 2D SESS., AT 127. 

FN8  THE ORIGINAL COMPLAINT IN THE FORMER ACTION WAS FILED JANUARY
19, 1950. 
..END :






LESLIE MILLER, INC., V. ARKANSAS 352 U.S. 187 


NO. 51.  ARGUED DECEMBER 5-6, 1956 - DECIDED DECEMBER 17, 1956 - 225
ARK. 285, 281 S.W.2D 946, REVERSED AND REMANDED. 


AWARDS ON ADVERTISED BIDS "SHALL BE MADE  ...  TO THAT RESPONSIBLE
BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST
ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED  ...
."  APPELLANT WAS AWARDED A CONTRACT UNDER THIS SECTION AND COMMENCED
CONSTRUCTION OF FACILITIES AT AN AIR FORCE BASE IN ARKANSAS OVER WHICH
THE UNITED STATES HAD NOT ACQUIRED JURISDICTION PURSUANT TO 54 STAT.
19, 40 U.S.C. SEC. 255.  APPELLANT WAS CONVICTED UNDER ARK. STAT.,
1947, SECS. 71-701 THROUGH 71-721, FOR SUBMITTING A BID, EXECUTING A
CONTRACT, AND COMMENCING WORK AS A CONTRACTOR IN THE STATE OF ARKANSAS
WITHOUT HAVING OBTAINED A LICENSE FOR SUCH ACTIVITIES FROM THE STATE
CONTRACTORS LICENSING BOARD.  HELD:  THE STATE STATUTE IS IN CONFLICT
WITH THE FEDERAL STATUTE AND THE REGULATIONS THEREUNDER, AND THE STATE
STATUTE CANNOT CONSTITUTIONALLY BE APPLIED TO APPELLANT.  JOHNSON V.
MARYLAND, 254 U.S. 51.  PP. 187-190. 

LESLIE MILLER, INC., V. ARKANSAS. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

PER CURIAM. 

APPELLANT SUBMITTED A BID IN MAY 1954 FOR CONSTRUCTION OF FACILITIES
AT AN AIR FORCE BASE IN ARKANSAS OVER WHICH THE UNITED STATES HAD NOT
ACQUIRED JURISDICTION PURSUANT TO 54 STAT.  19, 40 U.S.C. SEC. 255. 
THE UNITED STATES ACCEPTED APPELLANT'S BID, AND IN JUNE APPELLANT BEGAN
WORK ON THE PROJECT.  IN SEPTEMBER, THE STATE OF ARKANSAS FILED AN
INFORMATION ACCUSING APPELLANT OF VIOLATION OF ARK. STAT., 1947, SECS.
71-701 THROUGH 71-721, FOR SUBMITTING A BID, EXECUTING A CONTRACT, AND
COMMENCING WORK AS A CONTRACTOR IN THE STATE OF ARKANSAS WITHOUT HAVING
OBTAINED A LICENSE UNDER ARKANSAS LAW FOR SUCH ACTIVITY FROM ITS
CONTRACTORS LICENSING BOARD.  THE CASE WAS TRIED ON STIPULATED FACTS. 
APPELLANT WAS FOUND GUILTY AND FINED.  THE TRIAL COURT'S JUDGMENT WAS
AFFIRMED BY THE ARKANSAS SUPREME COURT, 225 ARK.  285, 281 S.W.2D 946,
AND THE CASE CAME HERE ON APPEAL.  351 U.S. 948.  APPELLANT AND THE
UNITED STATES AS AMICUS CURIAE CONTEND THAT THE APPLICATION OF THE
ARKANSAS STATUTE TO THIS CONTRACTOR INTERFERES WITH THE FEDERAL
GOVERNMENT'S POWER TO SELECT CONTRACTORS AND SCHEDULE CONSTRUCTION AND
IS IN CONFLICT WITH THE FEDERAL LAW REGULATING PROCUREMENT. 

CONGRESS PROVIDED IN SEC. 3 OF THE ARMED SERVICES PROCUREMENT ACT OF
1947, 62 STAT. 21, 23, 41 U.S.C. SEC. 152, THAT AWARDS ON ADVERTISED
BIDS "SHALL BE MADE  ...  TO THAT RESPONSIBLE BIDDER WHOSE BID,
CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUUS TO
THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED  ...  ."  THE REPORT
FROM THE COMMITTEE ON ARMED SERVICES OF THE HOUSE OF REPRESENTATIVES
INDICATED SOME OF THE FACTORS TO BE CONSIDERED: "THE QUESTION WHETHER A
PARTICULAR BIDDER IS A 'RESPONSIBLE BIDDER' REQUIRES SOUND BUSINESS
JUDGMENT, AND INVOLVES AN EVALUATION OF THE BIDDER'S EXPERIENCE,
FACILITIES, TECHNICAL ORGANIZATION, REPUTATION, FINANCIAL RESOURCES,
AND OTHER FACTORS."  H.R. REP. NO. 109, 80TH CONG., 1ST SESS. 18; SEE
S. REP. NO. 571, 80TH CONG., 1ST SESS. 16.  THE ARMED SERVICES
PROCUREMENT REGULATIONS, PROMULGATED UNDER THE ACT, SET FORTH A LIST OF
GUIDING CONSIDERATIONS, DEFINING A RESPONSIBLE CONTRACTOR AS ONE WHO: 

"(A)  IS A MANUFACTURER, CONSTRUCTION CONTRACTOR, OR REGULAR DEALER
...  . 

"(B)  HAS ADEQUATE FINANCIAL RESOURCES, OR ABILITY TO SECURE SUCH
RESOURCES. 

"(C)  HAS THE NECESSARY EXPERIENCE, ORGANIZATION, AND TECHNICAL
QUALIFICATIONS, AND HAS OR CAN ACQUIRE THE NECESSARY FACILITIES
(INCLUDING PROBABLE SUBCONTRACTOR ARRANGEMENTS) TO PERFORM THE PROPOSED
CONTRACT: 

"(D)  IS ABLE TO COMPLY WITH THE REQUIRED DELIVERY OR PERFORMANCE
SCHEDULE (TAKING INTO CONSIDERATION ALL EXISTING BUSINESS
COMMITMENTS): 

"(E)  HAS A SATISFACTORY RECORD OF PERFORMANCE, INTEGRITY, JUDGMENT,
AND SKILLS; AND: 

"(F)  IS OTHERWISE QUALIFIED AND ELIGIBLE TO RECEIVE AN AWARD UNDER
APPLICABLE LAWS AND REGULATIONS."  32 CFR SEC. 1.307; SEE ALSO 32 CFR
SEC. 2.406-3. 

UNDER THE ARKANSAS LICENSING LAW SIMILAR FACTORS ARE SET FORTH TO
GUIDE THE CONTRACTORS LICENSING BOARD: 

"THE BOARD, IN DETERMINING THE QUALIFICATIONS OF ANY APPLICANT FOR
ORIGINAL LICENSE  ...  SHALL, AMONG OTHER THINGS, CONSIDER THE
FOLLOWING:  (A) EXPERIENCE, (B) ABILITY, (C) CHARACTER, (D) THE MANNER
OF PERFORMANCE OF PREVIOUS CONTRACTS, (E) FINANCIAL CONDITION, (F)
EQUIPMENT, (G) ANY OTHER FACT TENDING TO SHOW ABILITY AND WILLINGNESS
TO CONSERVE THE PUBLIC HEALTH AND SAFETY, AND (H) DEFAULT IN COMPLYING
WITH THE PROVISIONS OF THIS ACT  ...  OR ANY OTHER LAW OF THE STATE
...  ."  ARK. STAT., 1947, SEC. 71-709. 

MERE ENUMERATION OF THE SIMILAR GROUNDS FOR LICENSING UNDER THE STATE
STATUTE AND FOR FINDING "RESPONSIBILITY" UNDER THE FEDERAL STATUTE AND
REGULATIONS IS SUFFICIENT TO INDICATE CONFLICT BETWEEN THIS LICENSE
REQUIREMENT WHICH ARKANSAS PLACES ON A FEDERAL CONTRACTOR AND THE
ACTION WHICH CONGRESS AND THE DEPARTMENT OF DEFENSE HAVE TAKEN TO
INSURE THE RELIABILITY OF PERSONS AND COMPANIES CONTRACTING WITH THE
FEDERAL GOVERNMENT.  SUBJECTING A FEDERAL CONTRACTOR TO THE ARKANSAS
CONTRACTOR LICENSE REQUIREMENTS WOULD GIVE THE STATE'S LICENSING BOARD
A VIRTUAL POWER OF REVIEW OVER THE FEDERAL DETERMINATION OF
"RESPONSIBILITY" AND WOULD THUS FRUSTRATE THE EXPRESSED FEDERAL POLICY
OF SELECTING THE LOWEST RESPONSIBLE BIDDER.  IN VIEW OF THE FEDERAL
STATUTE AND REGULATIONS, THE RATIONALE OF JOHNSON V. MARYLAND, 254 U.S.
51, 57, IS APPLICABLE: 

"IT SEEMS TO US THAT THE IMMUNITY OF THE INSTRUMENTS OF THE UNITED
STATES FROM STATE CONTROL IN THE PERFORMANCE OF THEIR DUTIES EXTENDS TO
A REQUIREMENT THAT THEY DESIST FROM PERFORMANCE UNTIL THEY SATISFY A
STATE OFFICER UPON EXAMINATION THAT THEY ARE COMPETENT FOR A NECESSARY
PART OF THEM AND PAY A FEE FOR PERMISSION TO GO ON.  SUCH A REQUIREMENT
DOES NOT MERELY TOUCH THE GOVERNMENT SERVANTS REMOTELY BY A GENERAL
RULE OF CONDUCT; IT LAYS HOLD OF THEM IN THEIR SPECIFIC ATTEMPT TO OBEY
ORDERS AND REQUIRES QUALIFICATIONS IN ADDITION TO THOSE THAT THE
GOVERNMENT HAS PRONOUNCED SUFFICIENT.  IT IS THE DUTY OF THE DEPARTMENT
TO EMPLOY PERSONS COMPETENT FOR THEIR WORK AND THAT DUTY IT MUST BE
PRESUMED HAS BEEN PERFORMED  ...  ." 

THE JUDGMENT OF THE SUPREME COURT OF ARKANSAS IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 
..END :
















NELSON, SUCCESSOR TRUSTEES V. CITY OF NEW YORK 352 U.S. 103 


NO. 30.  ARGUED NOVEMBER 7, 1956 - DECIDED DECEMBER 10, 1956 - 309 N.Y.
94, 801, 127 N.E.2D 827, 130 N.E.2D 602, AFFIRMED. 


UNDER TITLE D, CHAPTER 17, OF THE NEW YORK CITY ADMINISTRATIVE CODE,
THE CITY PROCEEDED TO FORECLOSE LIENS FOR UNPAID WATER CHARGES ON TWO
PARCELS OF LAND HELD IN TRUST BY APPELLANTS.  IN ACCORDANCE WITH THE
STATUTE, NOTICE WAS GIVEN BY POSTING, PUBLICATION AND MAILING NOTICES
TO THE TRUST ESTATE.  BECAUSE OF THE DERELICTIONS OF A BOOKKEEPER,
THESE NOTICES WERE NOT BROUGHT TO THE ATTENTION OF APPELLANTS, AND THEY
CLAIMED TO HAVE HAD NO KNOWLEDGE OF THE FORECLOSURE PROCEEDINGS UNTIL
AFTER JUDGMENTS OF FORECLOSURE HAD BEEN ENTERED BY DEFAULT AND THE CITY
HAD ACQUIRED TITLE TO THE PROPERTY.  THE CITY SOLD ONE PARCEL FOR AN
AMOUNT MANY TIMES THAT OF THE UNPAID WATER CHARGES AND RETAINED ALL THE
PROCEEDS.  THE VALUE OF THE OTHER PARCEL WAS MANY TIMES THE AMOUNT OF
THE UNPAID WATER CHARGES, AND THE CITY RETAINED TITLE TO IT.
APPELLANTS MOVED TO HAVE THE DEFAULTS OPENED, THE DEED TO ONE PARCEL
SET ASIDE AND TO RECOVER THE SURPLUS PROCEEDS FROM THE SALE OF THE
OTHER PARCEL.  SUCH RELIEF WAS DENIED.  HELD: 

1.  THE CITY HAVING TAKEN STEPS TO NOTIFYING APPELLANTS OF THE
ARREARAGES AND THE FORECLOSURE PROCEEDINGS, AND APPELLANTS' AGENT
HAVING RECEIVED SUCH NOTICES, APPLICATION OF THE STATUTE DID NOT
DEPRIVE APPELLANTS OF PROCEDURAL DUE PROCESS.  PP. 107-109. 

(A)  THE CITY CANNOT BE CHARGED WITH RESPONSIBILITY FOR THE
MISCONDUCT OF THE APPELLANTS' BOOKKEEPER NOR FOR THE CARELESSNESS OF
THE MANAGING TRUSTEE IN OVERLOOKING NOTICES OF ARREARAGES GIVEN ON TAX
BILLS.  P. 108. 

(B)  IN VIEW OF THE FACT THAT THERE ARE 834,000 TAX PARCELS, THE CITY
CANNOT BE HELD TO A DUTY TO DETERMINE WHY APPELLANTS NEGLECTED WATER
CHARGES WHILE PAYING MUCH LARGER REAL ESTATE TAXES.  COVEY V. TOWN OF
SOMERS, 351 U.S. 141, DISTINGUISHED.  P. 108. 

2.  SINCE THE STATUTE REQUIRES THAT, WHEN THE STRICT FORECLOSURE
PROVISIONS OF TITLE D, CHAPTER 17, ARE INVOKED, THEY MUST BE USED
AGAINST ALL PARCELS IN A SECTION OF THE CITY ON WHICH CHARGES HAVE BEEN
OUTSTANDING FOR FOUR YEARS, APPELLANTS WERE NOT DENIED EQUAL PROTECTION
OF THE LAWS BY FAILURE OF THE CITY OFFICIALS TO RESORT TO OTHER
REMEDIES WHICH WOULD NOT NECESSARILY HAVE RESULTED IN FORFEITURE OF THE
ENTIRE VALUE OF THEIR PROPERTY.  P. 109. 

3.  APPELLANTS NOT HAVING TAKEN TIMELY ACTION TO SECURE THE RELIEF
AVAILABLE UNDER THE STATUTE ALTHOUGH ADEQUATE STEPS WERE TAKEN TO
NOTIFY THEM OF THE CHARGES DUE AND THE FORECLOSURE PROCEEDINGS, THEY
WERE NOT DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW NOR WAS THEIR
PROPERTY TAKEN WITHOUT JUST COMPENSATION BY REASON OF THE CITY'S
RETENTION OF PROPERTY, IN ONE INSTANCE, AND RETENTION OF THE PROCEEDS
OF SALE, IN THE OTHER INSTANCE, FAR EXCEEDING IN VALUE THE AMOUNTS
DUE.  PP. 109-111. 

(A)  UNITED STATES V. LAWTON, 110 U.S. 146, DISTINGUISHED.  PP. 109
110. 

(B)  RELIEF FROM THE HARDSHIP IMPOSED BY A STATE STATUTE IS THE
RESPONSIBILITY OF THE STATE LEGISLATURE AND NOT OF THE COURTS, UNLESS
SOME CONSTITUTIONAL GUARANTEE IS INFRINGED.  PP.  110-111. 

NELSON ET AL., SUCCESSOR TRUSTEES, ET AL. V. CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

APPELLANTS CHALLENGE AS VIOLATIVE OF THE FOURTEENTH AMENDMENT THE
APPLICATION OF TITLE D, CHAPTER 17, OF THE NEW YORK CITY ADMINISTRATIVE
CODE TO TWO IMPROVED PARCELS OF LAND OWNED BY THEM AS TRUSTEES.  THE
STATUTE IS THE COUNTERPART, OPERATIVE IN THE CITY OF NEW YORK, OF THE
STATE TAX LIEN FORECLOSURE STATUTE THAT WAS BEFORE US LAST TERM IN
COVEY V. TOWN OF SOMERS, 351 U.S. 141.  (FN1) 

IN 1950, THE CITY PROCEEDED TO FORECLOSE ITS LIEN ON THE FIRST OF
THESE PARCELS, REFERRED TO AS THE 45TH AVENUE PROPERTY, FOR WATER
CHARGES THAT HAD BEEN UNPAID FOR FOUR YEARS.  THESE CHARGES, FOR THE
YEARS 1945 AND 1946, AMOUNTED TO $65; (FN2) THE PROPERTY WAS ASSESSED
AT $6,000.  THE ACTION WAS BEGUN ON MAY 20 WITH THE FILING OF A LIST OF
294 LIENED PARCELS, INCLUDING THE 45 AVENUE PROPERTY, IN TWO SECTIONS
OF THE BOROUGH OF QUEENS.  UNDER THE STATUTE, THIS CONSTITUTED THE
FILING OF A COMPLAINT.  (FN3)  THE STATUTE REQUIRES THAT NOTICE OF SUCH
A FORECLOSURE PROCEEDING BE POSTED AND PUBLISHED AND A COPY OF THE
PUBLISHED NOTICE MAILED TO THE LAST KNOWN ADDRESS OF THE OWNER OF
PROPERTY SOUGHT TO BE FORECLOSED.  (FN4)  IT IS UNDISPUTED THAT THE
STATUTORY NOTICE REQUIREMENTS WERE SATISFIED IN THIS CASE; A COPY OF
THE PUBLISHED NOTICE WAS MAILED TO THE ADDRESS OF THE TRUST ESTATE. 
HOWEVER, APPELLANTS TOOK NO ACTION DURING THE 7 WEEKS ALLOWED FOR
REDEEMING THE PROPERTY THROUGH PAYMENT OF BACK CHARGES NOR DURING THE
20 ADDITIONAL DAYS ALLOWED FOR ANSWERING THE CITY'S COMPLAINT. 
JUDGMENTS OF FORECLOSURE WERE ENTERED BY DEFAULT, AND ON AUGUST 22 THE
CITY ACQUIRED TITLE TO THE PARCEL.  THE PROPERTY WAS LATER SOLD TO A
PRIVATE PARTY FOR $7,000, THE CITY RETAINING ALL THE PROCEEDS. 

ON DECEMBER 17, 1951, A SIMILAR IN REM FORECLOSURE ACTION WAS
COMMENCED AGAINST 1,704 PARCELS IN FOUR SECTIONS OF THE BOROUGH OF
BROOKLYN, INCLUDING APPELLANTS' SECOND PARCEL, REFERRED TO AS THE
POWELL STREET PROPERTY.  THE FOUR-YEAR-OLD WATER CHARGES ON THIS PARCEL
AMOUNTED TO $814.50; (FN5) THE PROPERTY WAS ASSESSED AT $46,000.  AGAIN
THE STATUTORY NOTICE REQUIREMENTS WERE SATISFIED, AND AGAIN JUDGMENT OF
FORECLOSURE WAS ENTERED BY DEFAULT.  THE CITY ACQUIRED TITLE TO THE
POWELL STREET PROPERTY ON MAY 19, 1952, AND STILL RETAINS IT. 

IN NOVEMBER 1952, THE APPELLANTS OFFERED TO PAY WITH INTEREST AND
PENALTIES ALL AMOUNTS OWING TO THE CITY ON THE TWO PARCELS.  THE OFFER
WAS REFUSED, AND THE APPELLANTS INSTITUTED A PLENARY ACTION TO SET
ASIDE THE CITY'S DEED TO THE POWELL STREET PROPERTY AND TO RECOVER THE
SURPLUS PROCEEDS FROM THE SALE OF THE 45TH AVENUE PROPERTY.  THE
APPELLATE DIVISION OF THE NEW YORK SUPREME COURT AFFIRMED THE DENIAL OF
THE REQUESTED RELIEF WITHOUT PREJUDICE TO APPELLANTS' SEEKING TO OPEN
THEIR DEFAULT BY MOTIONS IN THE FORECLOSURE PROCEEDINGS.  THE
APPELLANTS FILED SUCH MOTIONS, REQUESTING THE SAME RELIEF THEY HAD
SOUGHT IN THE PLENARY ACTION.  THE CASE WAS SUBMITTED TO THE SUPREME
COURT, SPECIAL TERM, ON OPPOSING AFFIDAVITS, AND THE MOTIONS WERE
DENIED.  THE SPECIAL TERM'S ORDERS WERE AFFIREMD BY THE APPELLATE
DIVISION, 284 APP. DIV. 894, 134 N.Y.S.2D 597, AND THE COURT OF
APPEALS, 309 N.Y. 94, 127 N.E.2D 827.  THE COURT OF APPEALS AMENDED ITS
REMITTITUR TO SHOW THAT THE FEDERAL QUESTIONS HERE PRESENTED WERE
DECIDED ADVERSELY TO APPELLANTS.  309 N.Y. 801, 130 N.E.2D 602. 

1.  APPELLANTS CONTEND THEY RECEIVED NO ACTUAL NOTICE OF THE
FORECLOSURE PROCEEDINGS.  THE REASON THEY ASSIGN IS THAT THE MAILED
NOTICES WERE CONCEALED BY THEIR TRUSTED BOOKKEEPER, WHO IS ALSO ALLEGED
TO HAVE CONCEALED FROM THEM THE NONPAYMENT OF THE WATER CHARGES.  THERE
IS NO CLAIM THAT THE BILLS FOR THE WATER CHARGES WERE NOT MAILED TO THE
ESTATE.  THEY ASSERT THAT IT WAS NOT UNTIL NOVEMBER 1952, WHEN THE
JUDGMENTS OF FORECLOSURE HAD LONG SINCE BECOME FINAL, THAT THEY
DISCOVERED THE BOOKKEEPER'S DERELICTIONS, AND THUS WERE MADE AWARE OF
THEIR LOSS.  HOWEVER, AS WE HAVE SAID, IT IS NOT DISPUTED THAT THE
NOTICES WERE MAILED TO THE PROPER ADDRESS.  NOR IS THIS ALL. 
APPELLANTS THEMSELVES PLACED IN EVIDENCE AS EXHIBITS 1950-1951 AND 1951
1952 REAL ESTATE TAX BILLS FOR THE 45TH AVENUE PROPERTY.  THESE WERE
CONCEDEDLY BROUGHT TO THE ATTENTION OF APPELLANT GERALD D. NELSON, THE
"ACTIVE" OR "MANAGING" TRUSTEE.  ON THE FACE OF THE BILLS APPEARS THE
WORD "ARREARS," WITH A PROMINENT BLACK ARROW POINTING TO IT AND BENEATH
THE ARROW THE STATEMENT, "THE WORD ARREARS IF IT APPEARS IN THE SPACE
INDICATED BY THE ARROW, MEANS THAT, AS OF JUNE 30, 1950, PREVIOUS
TAXES, ASSESSMENTS OR WATER CHARGES HAVE NOT BEEN RECORDED AS PAID.  IF
THESE HAVE NOT BEEN PAID SINCE JUNE 30, 1950, PAYMENT SHOULD BE MADE
IMMEDIATELY."  (FN6)  FURTHERMORE, THE CITY'S ASSISTANT CORPORATION
COUNSEL STATED IN HIS AFFIDAVIT THAT THE TAX BILLS FOR THE POWELL
STREET PROPERTY EACH YEAR FROM 1946 TO 1953 CONTAINED A NOTICE THAT THE
PROPERTY WAS IN ARREARS.  APPELLANT NELSON STATED THAT THE BOOKKEEPER
"HAD BEEN REGULARLY PRESENTING TO DEPONENT FOR PAYMENT ALL OF THE BILLS
FOR REAL ESTATE TAXES WHICH WERE PAID THROUGH THE FIRST HALF OF 1951-52
...  ."  (FN7)  IT IS CLEAR THAT THE CITY CANNOT BE CHARGED WITH
RESPONSIBILITY FOR THE MISCONDUCT OF THE BOOKKEEPER IN WHOM APPELLANTS
MISPLACED THEIR CONFIDENCE NOR FOR THE CARELESSNESS OF THE MANAGING
TRUSTEE IN OVERLOOKING NOTICES OF ARREARAGES. 

APPELLANTS MAKE THE FURTHER CONTENTION THAT THE CITY OFFICIALS SHOULD
HAVE KNOWN FROM THE STATE OF THE RECORDS OF THE TWO PARCELS THAT MAILED
NOTICE WOULD PROBABLY BE INEFFECTIVE.  THAT IS, THE FACT THAT WATER
CHARGES WERE NOT PAID WHILE THE MUCH LARGER REAL ESTATE TAXES WERE PAID
SHOULD HAVE INDICATED TO THE OFFICIALS THAT SOMETHING WAS AMISS.  THEY
RELY ON COVEY V. TOWN OF SOMERS, SUPRA. WE CANNOT SO HOLD.  IN THE
COVEY CASE, THERE WERE UNCONTROVERTED ALLEGATIONS THAT THE TAXPAYER,
WHO LIVED ON THE FORECLOSED PROPERTY, WAS KNOWN BY THE OFFICIALS OF A
SMALL COMMUNITY TO BE AN INCOMPETENT, UNABLE TO UNDERSTAND THE MEANING
OF ANY NOTICE SERVED UPON HER; NO ATTEMPT WAS MADE TO HAVE A COMMITTEE
APPOINTED FOR HER PERSON OR PROPERTY UNTIL AFTER ENTRY OF JUDGMENT OF
FORECLOSURE IN AN IN REM PROCEEDING.  THE AFFIDAVIT OF THE ASSISTANT
CORPORATION COUNSEL HERE STATES THAT THERE ARE MORE THAN 834,000 TAX
PARCELS IN THE CITY, AND ON THE FACTS OF THIS CASE THE CITY CANNOT BE
HELD TO A DUTY TO DETERMINE WHY A TAXPAYER NEGLECTS SOME TAXES WHILE
PAYING OTHERS. 

WE CONCLUDE, THEREFORE, THAT THE CITY HAVING TAKEN STEPS TO NOTIFY
APPELLANTS OF THE ARREARAGES AND THE FORECLOSURE PROCEEDINGS AND THEIR
AGENT HAVING RECEIVED SUCH NOTICES, ITS APPLICATION OF THE STATUTE DID
NOT DEPRIVE APPELLANTS OF PROCEDURAL DUE PROCESS. 

2.  APPELLANTS ALSO CLAIM A DENIAL OF THE EQUAL PROTECTION OF THE
LAWS IN THAT THE CITY OFFICIALS HAD AVAILABLE TO THEM OTHER REMEDIES
FOR COLLECTING TAXES, WHICH WOULD NOT NECESSARILY HAVE RESULTED IN
FORFEITURE OF THE ENTIRE VALUE OF THEIR PROPERTY.  THEIR THEORY IS THAT
THE CHOICE TO PROCEED AGAINST THEIR PROPERTY UNDER TITLE D, CHAPTER 17,
WAS ARBITRARY.  WE FIND THE CONTENTION WITHOUT MERIT.  THE STATUTE IS
EXPLICIT THAT WHEN THE STRICT FORECLOSURE PROVISIONS OF TITLE D,
CHAPTER 17, ARE INVOKED, THEY MUST BE USED AGAINST ALL PARCELS IN A
YEARS.  (FN8)  IT IS CLEAR THAT THE AIM IS TO PREVENT PRECISELY THE
KIND OF DISCRIMINATION OF WHICH APPELLANTS COMPLAIN.  APPELLANTS DO NOT
ASSERT THAT THE STATUTE WAS NOT COMPLIED WITH IN THIS REGARD. 

3.  IN THEIR REPLY BRIEF, APPELLANTS URGED THAT BY REASONS OF THE
CITY'S RETENTION OF PROPERTY, IN ONE INSTANCE, AND PROCEEDS OF SALE IN
THE OTHER, FAR EXCEEDING IN VALUE THE AMOUNTS DUE, THEY ARE DEPRIVED OF
PROPERTY WITHOUT DUE PROCESS OF LAW OR HAVE SUFFERED A TAKING WITHOUT
JUST COMPENSATION.   THEY CALLED OUR ATTENTION TO UNITED STATES V.
LAWTON, 110 U.S. 146.  IN AFFIRMING A JUDGMENT IN FAVOR OF A FORECLOSED
LANDOWNER FOR THE SURPLUS PROCEEDS FROM THE SALE OF HIS LAND, THE COURT
THERE SAID:  "TO WITHHOLD THE SURPLUS FROM THE OWNER WOULD BE TO
VIOLATE THE FIFTH AMENDMENT TO THE CONSTITUTION AND TO DEPRIVE HIM OF
HIS PROPERTY WITHOUT DUE PROCESS OF LAW, OR TO TAKE HIS PROPERTY FOR
PUBLIC USE WITHOUT JUST COMPENSATION."  110 U.S., AT 150.  HOWEVER, THE
STATUTE INVOLVED IN THAT CASE HAD BEEN CONSTRUED IN UNITED STATES V.
TAYLOR, 104 U.S. 216, TO REQUIRE THAT THE SURPLUS BE PAID TO THE OWNER,
AND THERE THE PROBLEM WAS TREATED AS PURELY ONE OF STATUTORY
CONSTRUCTION WITHOUT CONSTITUTIONAL OVERTONES.  (FN9)  BUT WE DO NOT
HAVE HERE A STATUTE WHICH ABSOLUTELY PRECLUDES AN OWNER FROM OBTAINING
THE SURPLUS PROCEEDS OF A JUDICIAL SALE.  IN CITY OF NEW YORK V.
CHAPMAN DOCKS CO., 1 APP. DIV. 2D 895, 149 N.Y.S.2D 679, AN OWNER FILED
A TIMELY ANSWER IN A FORECLOSURE PROCEEDING, ASSERTING HIS PROPERTY HAD
A VALUE SUBSTANTIALLY EXCEEDING THE TAX DUE.  THE APPELLATE DIVISION
CONSTRUED SEC. D17-12.0 OF THE STATUTE (FN10) TO MEAN THAT UPON PROOF
OF THIS ALLEGATION A SEPARATE SALE SHOULD BE DIRECTED SO THAT THE OWNER
MIGHT RECEIVE THE SURPLUS.  WHAT THE CITY OF NEW YORK HAS DONE IS TO
FORECLOSE REAL PROPERTY FOR CHARGES FOUR YEARS DELINQUENT AND, IN THE
ABSENCE OF TIMELY ACTION TO REDEEM OR TO RECOVER ANY SURPLUS, RETAIN
THE PROPERTY OR THE ENTIRE PROCEEDS OF ITS SALE.  WE HOLD THAT NOTHING
IN THE FEDERAL CONSTITUTION PREVENTS THIS WHERE THE RECORD SHOWS
ADEQUATE STEPS WERE TAKEN TO NOTIFY THE OWNERS OF THE CHARGES DUE AND
THE FORECLOSURE PROCEEDINGS. 

IT IS CONTENDED THAT THIS IS A HARSH STATUTE.  THE NEW YORK COURT OF
APPEALS TOOK COGNIZANCE OF THIS CLAIM AND SPOKE OF THE "EXTREME
HARDSHIPS" RESULTING FROM THE APPLICATIONS OF THE STATUTE IN THIS
CASE.  BUT IT HELD, AS WE MUST, THAT RELIEF FROM THE HARDSHIP IMPOSED
BY A STATE STATUTE IS THE RESPONSIBILITY OF THE STATE LEGISLATURE AND
NOT OF THE COURTS, UNLESS SOME CONSTITUTIONAL GUARANTEE IS INFRINGED. 
IN THIS CONNECTION, WE NOTE THAT THE NEW YORK LEGISLATURE THIS YEAR HAS
AMELIORATED TO SOME EXTENT THE SEVERITY OF TITLE D, CHAPTER 17. 
OF PROPERTY ACQUIRED AND STILL HELD BY THE CITY UPON PAYMENT OF
ARREARS, INTEREST AND THE COSTS OF FORECLOSURE.  THE CITY CONCEDES THIS
AMENDMENT APPLIES TO THE POWELL STREET PROPERTY.  APPELLANTS HAVE
APPLIED FOR A RECONVEYANCE OF THAT PROPERTY, AND ACTION HAS BEEN HELD
IN ABEYANCE PENDING THE DISPOSITION OF THIS APPEAL.  AFFIRMED. 

FN1  THE STATUTE, SECS. D17-1.0 ET SEQ., ENACTED IN 1948, PROVIDES
FOR THE JUDICIAL FORECLOSURE OF TAX LIENS ON REAL PROPERTY.  THE CITY
TREASURER FILES IN THE APPROPRIATE COUNTY CLERK'S OFFICE A LIST OF ALL
PARCELS IN A SECTION OR WARD OF THE CITY ON WHICH TAX LIENS HAVE BEEN
UNPIAD FOR AT LEAST FOUR YEARS.  TAX LIENS INCLUDE UNPAID TAXES,
ASSESSMENTS OR WATER RENTS, INTEREST AND PENALTIES.  THIS FILING
CONSTITUTES THE FILING OF A COMPLAINT AND COMMENCES AN ACTION AGAINST
THE PROPERTY.  PROVISION IS MADE FOR NOTICE BY POSTING, PUBLICATION AND
MAIL.  THE NOTICE MUST BE MAILED TO THE PROPERTY OWNER AT HIS LAST
KNOWN ADDRESS.  THE PRESCRIBED NOTICE IS TO THE EFFECT THAT, UNLESS THE
AMOUNT OF UNPAID TAX LIENS, TOGETHER WITH INTEREST AND PENALTIES, ARE
PAID WITHIN 7 WEEKS OR AN ANSWER INTERPOSED WITHIN 20 DAYS THEREAFTER,
ANY PERSON HAVING THE RIGHT TO REDEEM OR ANSWER SHALL BE FORECLOSED OF
ALL HIS RIGHT, TITLE AND INTEREST AND EQUITY IN AND TO THE DELINQUENT
PROPERTY.  PROVISION IS MADE FOR ENTRY OF A JUDGMENT OF FORECLOSURE
AWARDING POSSESSION OF THE PROPERTY TO THE CITY AND DIRECTING EXECUTION
OF A DEED CONVEYING AN ESTATE IN FEE SIMPLE ABSOLUTE TO THE CITY.  THE
CITY MAY RETAIN THE PROPERTY OR SELL IT AND RETAIN THE ENTIRE
PROCEEDS. 

FN2  APPELLANTS AND THE NEW YORK COURT OF APPEALS USED THE FIGURE
$72.50.  BUT THE FIGURES GIVEN IN THE AFFIDAVIT OF APPELLANT GERALD D.
NELSON (R. 68) YIELD A TOTAL OF $65.  ALTOGETHER, BACK CHARGES,
INCLUDING THOSE LESS THAN FOUR YEARS OLD, TOTALED $320.20.  THIS
INCLUDES $91.20 REPRESENTING THE SECOND HALF OF THE 1948-1949 REAL
ESTATE TAXES.  NO WATER CHARGES WERE PAID FROM 1945 ON.  ALL REAL
ESTATE TAXES, WITH THE EXCEPTION NOTED, WERE PAID. 

FN3  SEC. D17-5.0. 

FN4  SEC. D17-6.0. 

FN5  FOR THE YEARS 1945 THROUGH 1947.  NO WATER CHARGES HAD BEEN PAID
SINCE 1945, AND THE SECOND HALF 1948-1949 REAL ESTATE TAX WAS NOT
PAID.  THE TOTAL DELINQUENCY WAS $2,681.  R. 13-14. 

FN6  THE DATE ON THE OTHER BILL WAS JUNE 30, 1951.  APPELLANTS
INTRODUCED THE TAX BILLS AS A BASIS FOR AN ARGUMENT THAT THE CITY'S
ERROR IN CONTINUING TO BILL THEM AFTER THE CITY HAD ACQUIRED TITLE TO
THE 45TH AVENUE PROPERTY LULLED THEM INTO THINKING THAT ALL WAS WELL,
SO THAT THEY TOOK NO STEPS TO PROTECT THE POWELL STREET PROPERTY.  THE
EFFECT OF THE NOTICE OF ARREARS SHOULD, IT SEEMS, HAVE BEEN QUITE THE
OPPOSITE. 

FN7  IN ADDITION, A DEPUTY CITY COLLECTOR ANNEXED TO HIS AFFIDAVIT
COPIES OF LETTERS SENT TO THE TRUST ESTATE ON JUNE 5 AND JULY 9, 1951,
ADVISING THAT THERE HAD BEEN DOUBLE PAYMENTS OF THE TAXES ON THE 45TH
AVENUE PROPERTY.    FN8  SEC. D17-5.0, WHICH PROVIDES FOR THE FILING OF
LISTS OF DELINQUENT PROPERTY, PROVIDES FURTHER, "EACH SUCH LIST SHALL
COMPRISE ALL SUCH PARCELS WITHIN A PARTICULAR SECTION OR WARD
DESIGNATED ON THE TAX MAPS OF THE CITY, EXCEPT THOSE PARCELS EXCLUDED
FROM SUCH LISTS AS HEREINAFTER PROVIDED."  THE GROUNDS FOR EXCLSUION
ARE (1) QUESTION RAISED AS TO THE VALIDITY OF THE TAX LIEN ON THE
PARCEL, (2) AND (3) ACCEPTED AGREEMENT TO PAY DELINQUENT TAXES IN
INSTALLMENTS, AND (4) TAX LIEN ON THE PROPERTY SOLD WITHIN TWO YEARS
AND ENFORCEMENT OF THE LIEN NOT COMPLETED. 

FN9  SEE ALSO CHAPMAN V. ZOBELEIN, 237 U.S. 135.    FN10  SECTION D17
12.0(A) PROVIDES IN PERTINENT PART, "THE COURT SHALL HAVE FULL POWER
...  IN A PROPER CASE TO DIRECT A SALE OF ...  LANDS AND THE
DISTRIBUTION OR OTHER DISPOSITION OF THE PROCEEDS OF THE SALE."  BY
SEC. D17-6.0 IT IS PROVIDED, "EVERY PERSON HAVING ANY RIGHT, TITLE OR
INTEREST IN OR LIEN UPON ANY PARCEL  ...  MAY SERVE A DULY VERIFIED
ANSWER  ...  SETTING FORTH IN DETAIL THE NATURE AND AMOUNT OF HIS
INTEREST OR LIEN AND ANY DEFENSE OR OBJECTION TO THE FORECLOSURE." 
..END :





















WALKER V. CITY OF HUTCHINSON 352 U.S. 112 


NO. 13.  ARGUED OCTOBER 15-16, 1956 - DECIDED DECEMBER 10, 1956 - 178
KAN. 263, 284 P.2D 1073, REVERSED AND REMANDED. 


PURSUANT TO ARTICLE 2, CHAPTER 26, OF THE GENERAL STATUTES OF KANSAS,
A CITY FILED AN ACTION TO CONDEMN PART OF APPELLANT'S LAND FOR PUBLIC
USE.  ACTING UNDER SEC. 26-202, COMMISSIONERS APPOINTED TO DETERMINE
COMPENSATION GAVE NO NOTICE OF A HEARING EXCEPT BY PUBLICATION IN THE
OFFICIAL CITY NEWSPAPER, THOUGH APPELLANT WAS A RESIDENT OF KANSAS AND
HIS NAME WAS KNOWN TO THE CITY AND WAS ON THE OFFICIAL RECORDS. 
ALLEGING THAT HE HAD NO ACTUAL KNOWLEDGE OF THE PROCEEDINGS UNTIL AFTER
DAMAGES HAD BEEN FIXED AND THE TIME FOR APPEAL HAD PASSED, APPELLANT
SUED IN EQUITY FOR AN INJUNCTION AGAINST TRESPASS AND FOR OTHER
RELIEF.  HELD:  SINCE THERE WAS NO REASON IN THIS CASE WHY DIRECT
NOTICE COULD NOT BE GIVEN, NEWSPAPER PUBLICATION ALONE DID NOT MEASURE
UP TO THE QUALITY OF NOTICE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT REQUIRES AS A PREREQUISITE TO PROCEEDINGS TO FIX COMPENSATION
IN CONDEMNATION CASES.  PP. 112-117. 

(A)  IF FEASIBLE, NOTICE MUST BE REASONABLY CALCULATED TO INFORM
PARTIES OF PROCEEDINGS WHICH MAY DIRECTLY AND ADVERSELY AFFECT THEIR
LEGALLY PROTECTED INTERESTS.  MULLANE V. CENTRAL HANOVER BANK & TRUST
CO., 339 U.S. 306.  P. 115. 

(B)  HULING V. KAW VALLEY RAILWAY & IMPROVEMENT CO., 130 U.S. 559,
DISTINGUISHED.  P. 116. 

WALKER V. CITY OF HUTCHINSON ET AL. 

APPEAL FROM THE SUPREME COURT OF KANSAS. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
DOUGLAS. 

THE APPELLANT LEE WALKER OWNED CERTAIN LAND IN THE CITY OF
HUTCHINSON, KANSAS.  IN 1954 THE CITY FILED AN ACTION IN THE DISTRICT
COURT OF RENO COUNTY, KANSAS, TO CONDEMN PART OF HIS PROPERTY IN ORDER
TO OPEN, WIDEN, AND EXTEND ONE OF THE CITY'S STREETS.  THE PROCEEDING
WAS INSTITUTED UNDER THE AUTHORITY OF ARTICLE 2, CHAPTER 26 OF THE
GENERAL STATUTES OF KANSAS, 1949.  PURSUANT TO SEC. 26-201 OF THAT
STATUTE (FN1) THE COURT APPOINTED THREE COMMISSIONERS TO DETERMINE
COMPENSATION FOR THE PROPERTY TAKEN AND FOR ANY OTHER DAMAGE SUFFERED. 
THESE COMMISSIONERS WERE REQUIRED BY SEC. 26-202 TO GIVE LANDOWNERS AT
LEAST TEN DAYS' NOTICE OF THE TIME AND PLACE OF THEIR PROCEEDINGS. 
SUCH NOTICE COULD BE GIVEN EITHER "IN WRITING  ...  OR BY ONE
PUBLICATION IN THE OFFICIAL CITY PAPER  ...  ."  (FN2)  THE APPELLANT
HERE WAS NOT GIVEN NOTICE IN WRITING BUT PUBLICATION WAS MADE IN THE
OFFICIAL CITY PAPER OF HUTCHINSON.  THE COMMISSIONERS FIXED HIS DAMAGES
AT $725, AND PURSUANT TO STATUTE, THIS AMOUNT WAS DEPOSITED WITH THE
CITY TREASURER FOR THE BENEFIT OF APPELLANT.  SECTION 26-205 AUTHORIZED
AN APPEAL FROM THE AWARD OF THE COMMISSIONERS IF TAKEN WITHIN 30 DAYS
AFTER THE FILING OF THEIR REPORT.  APPELLANT TOOK NO APPEAL WITHIN THE
PRESCRIBED PERIOD.  SOME TIME LATER, HOWEVER, HE BROUGHT THE PRESENT
EQUITABLE ACTION IN THE KANSAS DISTRICT COURT.  HIS PETITION ALLEGED
THAT HE HAD NEVER BEEN NOTIFIED OF THE CONDEMNATION PROCEEDINGS AND
KNEW NOTHING ABOUT THEM UNTIL AFTER THE TIME FOR APPEAL HAD PASSED.  HE
CHARGED THAT THE NEWSPAPER PUBLICATION AUTHORIZED BY THE STATUTE WAS
NOT SUFFICIENT NOTICE TO SATISFY THE FOURTEENTH AMENDMENT'S DUE PROCESS
REQUIREMENTS.  HE ASKED THE COURT TO ENJOIN THE CITY OF HUTCHINSON AND
ITS AGENTS FROM ENTERING OR TRESPASSING ON THE PROPERTY "AND FOR SUCH
OTHER AND FURTHER RELIEF AS TO THIS COURT SEEMS JUST AND EQUITABLE." 
(FN3)  AFTER A HEARING, THE KANSAS TRIAL COURT DENIED RELIEF, HOLDING
THAT THE NEWSPAPER PUBLICATION PROVIDED FOR BY SEC. 26-202 WAS
SUFFICIENT NOTICE OF THE COMMISSIONERS' PROCEEDINGS TO MEET THE
REQUIREMENTS OF THE DUE PROCESS CLAUSE.  AGREEING WITH THE TRIAL COURT,
THE STATE SUPREME COURT AFFIRMED.  178 KAN. 263, 284 P.2D 1073.  THE
CASE IS PROPERLY HERE ON APPEAL UNDER 28 U.S.C. SEC. 1257(2).  THE ONLY
QUESTION WE FIND IT NECESSARY TO DECIDE IS WHETHER, UNDER CIRCUMSTANCES
OF THIS KIND, NEWSPAPER PUBLICATION ALONE MEASURES UP TO THE QUALITY OF
NOTICE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES AS A
PREREQUISITE TO PROCEEDINGS TO FIX COMPENSATION IN CONDEMNATION CASES. 

IT CANNOT BE DISPUTED THAT DUE PROCESS REQUIRES THAT AN OWNER WHOSE
PROPERTY IS TAKEN FOR PUBLIC USE MUST BE GIVEN A HEARING IN DETERMINING
JUST COMPENSATION.  THE RIGHT TO A HEARING IS MEANINGLESS WITHOUT
NOTICE.  IN MULLANE V. CENTRAL HANOVER BANK & TRUST CO., 339 U.S. 306,
WE GAVE THOROUGH CONSIDERATION TO THE PROBLEM OF ADEQUATE NOTICE UNDER
THE DUE PROCESS CLAUSE.  THAT CASE ESTABLISHES THE RULE THAT, IF
FEASIBLE, NOTICE MUST BE REASONABLY CALCULATED TO INFORM PARTIES OF
PROCEEDINGS WHICH MAY DIRECTLY AND ADVERSELY AFFECT THEIR LEGALLY
PROTECTED INTERESTS.  (FN4)  WE THERE CALLED ATTENTION TO THE
IMPOSSIBILITY OF SETTING UP A RIGID FORMULA AS TO THE KIND OF NOTICE
THAT MUST BE GIVEN; NOTICE REQUIRED WILL VARY WITH CIRCUMSTANCES AND
CONDITIONS.  WE RECOGNIZED THAT IN SOME CASES IT MIGHT NOT BE
REASONABLY POSSIBLE TO GIVE PERSONAL NOTICE, FOR EXAMPLE WHERE PEOPLE
ARE MISSING OR UNKNOWN. 

MEASURED BY THE PRINCIPLES STATED IN THE MULLANE CASE, WE THINK THAT
THE NOTICE BY PUBLICATION HERE FALLS SHORT OF THE REQUIREMENTS OF DUE
PROCESS.  IT IS COMMON KNOWLEDGE THAT MERE NEWSPAPER PUBLICATION RARELY
INFORMS A LANDOWNER OF PROCEEDINGS AGAINST HIS PROPERTY.  IN MULLANE WE
POINTED OUT MANY OF THE INFIRMITIES OF SUCH NOTICE AND EMPHASIZED THE
ADVANTAGE OF SOME KIND OF PERSONAL NOTICE TO INTERESTED PARTIES.  IN
THE PRESENT CASE THERE SEEM TO BE NO COMPELLING OR EVEN PERSUASIVE
REASONS WHY SUCH DIRECT NOTICE CANNOT BE GIVEN.  APPELLANT'S NAME WAS
KNOWN TO THE CITY AND WAS ON THE OFFICIAL RECORDS.  EVEN A LETTER WOULD
HAVE APPRISED HIM THAT HIS PROPERTY WAS ABOUT TO BE TAKEN AND THAT HE
MUST APPEAR IF HE WANTED TO BE HEARD AS TO ITS VALUE.  (FN5) 

NOTHING IN OUR PRIOR DECISIONS REQUIRES A HOLDING THAT NEWSPAPER
PUBLICATION UNDER THE CIRCUMSTANCES HERE PROVIDES ADEQUATE NOTICE OF A
HEARING TO DETERMINE COMPENSATION.  THE STATE RELIES PRIMARILY ON
HULING V. KAW VALLEY RAILWAY & IMPROVEMENT CO., 130 U.S. 559.  WE THINK
THAT RELIANCE IS MISPLACED.  DECIDED IN 1889, THAT CASE UPHELD NOTICE
BY PUBLICATION IN A CONDEMNATION PROCEEDING ON THE GROUND THAT THE
LANDOWNER WAS A NONRESIDENT.  SINCE APPELLANT IN THIS CASE IS A
RESIDENT OF KANSAS, WE ARE NOT CALLED UPON TO CONSIDER THE EXTENT TO
WHICH MULLANE MAY HAVE UNDERMINED THE REASONING OF THE HULING
DECISION.  (FN6) 

THERE IS NOTHING PECULIAR ABOUT LITIGATION BETWEEN THE GOVERNMENT AND
ITS CITIZENS THAT SHOULD DEPRIVE THOSE CITIZENS OF A RIGHT TO BE
HEARD.  NOR IS THERE ANY REASON TO SUSPECT THAT IT WILL INTERFERE WITH
THE ORDERLY CONDEMNATION OF PROPERTY TO PRESERVE EFFECTIVELY THE
CITIZEN'S RIGHTS TO A HEARING IN CONNECTION WITH JUST COMPENSATION.  IN
TOO MANY INSTANCES NOTICE BY PUBLICATION IS NO NOTICE AT ALL.  IT MAY
LEAVE GOVERNMENT AUTHORITIES FREE TO FIX ONE-SIDEDLY THE AMOUNT THAT
MUST BE PAID OWNERS FOR THEIR PROPERTY TAKEN FOR PUBLIC USE. 

FOR THE FOREGOING REASONS THE JUDGMENT OF THE SUPREME COURT OF KANSAS
IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SECTION 26-201 READS IN PART AS FOLLOWS: 

"PRIVATE PROPERTY FOR CITY PURPOSES; SURVEY; ORDINANCE FIXING BENEFIT
DISTRICT; APPLICATION TO DISTRICT COURT; COMMISSIONERS.  WHENEVER IT
SHALL BE DEEMED NECESSARY BY ANY GOVERNING BODY OF ANY CITY TO
APPROPRIATE PRIVATE PROPERTY FOR THE OPENING, WIDENING, OR EXTENDING
ANY STREET OR ALLEY, ...  THE GOVERNING BODY SHALL CAUSE A SURVEY AND
DESCRIPTION OF THE LAND OR EASEMENT SO REQUIRED TO BE MADE BY SOME
COMPETENT ENGINEER AND FILE WITH THE CITY CLERK.  AND THEREUPON THE
GOVERNING BODY SHALL MAKE AN ORDER SETTING FORTH SUCH CONDEMNATION AND
FOR WHAT PURPOSE THE SAME IS TO BE USED  ...  .  THE GOVERNING BODY, AS
SOON AS PRACTICABLE AFTER MAKING THE ORDER DECLARING THE APPROPRIATION
OF SUCH LAND NECESSARY  ...  SHALL PRESENT A WRITTEN APPLICATION TO THE
JUDGE OF THE DISTRICT COURT OF THE COUNTY IN WHICH SAID LAND IS
SITUATED DESCRIBING THE LAND SOUGHT TO BE TAKEN AND SETTING FORTH THE
LAND NECESSARY FOR THE USE OF THE CITY AND  ...  PRAYING FOR THE
APPOINTMENT OF THREE COMMISSIONERS TO MAKE AN APPRAISEMENT AND
ASSESSMENT OF THE DAMAGES THEREFOR." 

FN2  SECTION 26-202 READ IN PART AS FOLLOWS: 

"NOTICE TO PROPERTY OWNERS OR LIENHOLDERS OF RECORD; APPRAISEMENT AND
ASSESSMENT OF DAMAGES; REPORTS.  THE COMMISSIONERS APPOINTED BY THE
JUDGE OF THE DISTRICT COURT SHALL GIVE ANY OWNER AND ANY LIENHOLDER OF
RECORD OF THE PROPERTY SOUGHT TO BE TAKEN AT LEAST TEN DAYS' NOTICE IN
WRITING OF THE TIME AND PLACE WHEN AND WHERE THE DAMAGE WILL BE
ASSESSED, OR BY ONE PUBLICATION IN THE OFFICIAL CITY PAPER, AND AT THE
TIME FIXED BY SUCH NOTICE SHALL, UPON ACTUAL VIEW, APPRAISE THE VALUE
OF THE LANDS TAKEN AND ASSESS THE OTHER DAMAGES DONE TO THE OWNERS OF
SUCH PROPERTY, RESPECTIVELY, BY SUCH APPROPRIATIONS.  FOR THE PAYMENT
OF SUCH VALUE AND DAMAGES THE COMMISSIONERS SHALL ASSESS AGAINST THE
CITY THE AMOUNT OF THE BENEFIT TO THE PUBLIC GENERALLY AND THE
REMAINDER OF SUCH DAMAGES AGAINST THE PROPERTY WITHIN THE BENEFIT
DISTRICT WHICH SHALL IN THE OPINION OF THE APPRAISERS BE ESPECIALLY
BENEFITED BY THE PROPOSED IMPROVEMENT.  THE SAID COMMISSIONERS MAY
ADJOURN AS OFTEN AND FOR SUCH LENGTH OF TIME AS MAY BE DEEMED
CONVENIENT, AND MAY, DURING ANY ADJOURNMENT, PERFECT OR CORRECT ALL
ERRORS OR OMISSIONS IN THE GIVING OF NOTICE BY SERVING NEW NOTICES OR
MAKING NEW PUBLICATION, CITING CORPORATIONS OR INDIVIDUAL PROPERTY
OWNERS WHO HAVE NOT BEEN NOTIFIED OR TO WHOM DEFECTIVE NOTICE OR
INSUFFICIENT NOTICE HAS BEEN GIVEN, AND NOTICE OF ANY ADJOURNED MEETING
SHALL BE AS EFFECTIVE AS NOTICE OF THE FIRST MEETING OF THE
COMMISSIONERS  ...  ." 

FN3  ALTHOUGH THE RELIEF PRAYED FOR WAS AN INJUNCTION AGAINST THE
TAKING, THE SUPREME COURT OF KANSAS EVIDENTLY CONSTRUED THE PLEADINGS
AS ADEQUATELY RAISING THE QUESTION WHETHER NOTICE WAS SUFFICIENT TO
ASSURE THE CONSTITUTIONALITY OF THE COMPENSATION PROCEDURE; IN ITS
OPINION IT PASSED ONLY ON SEC. 26-202, DEALING WITH THE LATTER
PROBLEM.  SINCE KANSAS REQUIRES A SHOWING OF ACTUAL DAMAGE FOR STANDING
TO MAINTAIN AN EQUITY SUIT, MCKEEVER V. BUKER, 80 KAN. 201, 101 P. 991,
AND SINCE THE KANSAS COURT TOOK THE COMPLAINT AS ALLEGING DAMAGE AS A
RESULT OF THE COMPENSATION RATHER THAN THE TAKING PROCEDURE, THE
PLEADING WAS EVIDENTLY TREATED BY THE STATE COURT AS ALLEGING MONETARY
DAMAGE RESULTING FROM THE LACK OF NOTICE IN CONNECTION WITH
COMPENSATION.  WE ACCEPT THIS CONSTRUCTION OF THE COMPLAINT BY THE
KANSAS COURT AS SUFFICIENT ALLEGATION OF DAMAGE.  SEE BRAGG V. WEAVER,
251 U.S. 57, WHERE THE ADEQUACY OF NOTICE OF COMPENSATION PROCEEDINGS
WAS PASSED ON BY THIS COURT IN AN INJUNCTION SUIT LIKE THIS ONE. 

FN4  WE APPLIED THE SAME RULE IN COVEY V. TOWN OF SOMERS, 351 U.S.
141; SEE ALSO CITY OF NEW YORK V. NEW YORK, N.H.&H.R. CO., 344 U.S.
293. 

FN5  SECTION 26-202 WAS AMENDED IN 1955, AFTER THIS COURT'S DECISION
IN MULLANE, TO REQUIRE THAT THE CITY MUST GIVE NOTICE TO PROPERTY
OWNERS BY MAILING A COPY OF THE NEWSPAPER NOTICE TO THEIR LAST KNOWN
RESIDENCE, UNLESS SUCH RESIDENCE COULD NOT BE LOCATED BY DILIGENT
INQUIRY.  KAN. GEN.  STAT., 1949 (SUPP. 1955), SEC. 26.202. 

FN6  THE STATE ALSO RELIES ON NORTH LARAMIE LAND CO. V. HOFFMAN, 268
U.S. 276, AND BRAGG V. WEAVER, 251 U.S. 57.  BUT THE HOLDINGS IN THOSE
CASES DO NOT CONFLICT WITH OUR HOLDING HERE.  THE NORTH LARAMIE CASE
UPHELD C. 73, SEC. 2, OF THE 1913 LAWS OF WYOMING, WHICH PROVIDED FOR
NOTICE BY PUBLICATION IN A NEWSPAPER AND REQUIRED THAT A COPY OF THE
NEWSPAPER MUST BE SENT TO THE LANDOWNER BY REGISTERED MAIL.  THIS
COURT'S OPINION STATED AT P. 282 THAT:  "THE SUPREME COURT OF WYOMING
HELD THAT THE PROCEDURE FOLLOWED COMPLIED WITH THE STATUTORY
REQUIREMENTS.  BY THAT DETERMINATION WE ARE BOUND."  IN BRAGG V.
WEAVER, SUPRA, AT PP. 61-62, THIS COURT STATED THAT THE CONTROLLING
VIRGINIA STATUTE PROVIDED THAT A LANDOWNER MUST BE NOTIFIED "IN WRITING
AND SHALL HAVE THIRTY DAYS AFTER SUCH NOTICE WITHIN WHICH TO APPEAL
...  .  IT IS APPARENT THEREFORE THAT SPECIAL CARE IS TAKEN TO AFFORD
HIM AMPLE OPPORTUNITY TO APPEAL AND THEREBY TO OBTAIN A FULL HEARING IN
THE CIRCUIT COURT." 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

APPELLANT CONTENDS THAT THE PROVISION OF KAN. GEN. STAT., 1949, SEC.
26-202, ALLOWING NOTICE OF THE HEARING ON COMPENSATION TO BE GIVEN BY
ONE PUBLICATION IN THE OFFICIAL CITY NEWSPAPER OF ITSELF VIOLATES THE
PROVISION OF THE FOURTEENTH AMENDMENT THAT NO STATE SHALL "DEPRIVE ANY
PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW ...
."  (FN1)  THE FIRST ISSUE THAT FACES US, HOWEVER, IS TO DECIDE FROM
THE PLEADINGS EXACTLY WHAT IT IS THAT WE MUST DECIDE IN THIS CASE. 

ONCE APPELLANT DISCOVERED THAT HIS LAND HAD BEEN CONDEMNED AND THAT
THE TIME FOR APPEAL FROM THE AWARD OF THE COMMISSIONERS HAD PASSED,
VARIOUS POSSIBLE COURSES OF ACTION, FOLLOWED SEPARATELY OR IN
COMBINATION AND EACH RAISING DIFFERENT ISSUES, WERE OPEN TO HIM.  IF HE
CONSIDERED THE AWARD FAIR BUT STILL DESIRED TO KEEP HIS LAND, HE COULD
HAVE CONTENDED THAT UNCONSTITUTIONALITY OF THE NOTICE FOR THE HEARING
ON COMPENSATION INVALIDATED THE TAKING.  IF HE CONSIDERED THE AWARD
UNFAIR, HE COULD HAVE ALLEGED IN AN APPROPRIATE ACTION THE
UNCONSTITUTIONALITY OF THE NOTICE OF THE COMPENSATION HEARING AND THE
INADEQUACY OF THE COMPENSATION AND SOUGHT TO OBTAIN FAIR COMPENSATION,
SEE WARD V. LOVE COUNTY, 253 U.S. 17, OR TO RESTRAIN ENTRY ONTO HIS
LAND UNTIL HE RECEIVED A HEARING UNDER KAN. GEN. STAT., 1949, SEC. 26
202, OR, MAKING A FURTHER ALLEGATION OF THE INVALIDITY OF THE TAKING,
TO OBTAIN A PERMANENT INJUNCTION.  AT THIS STAGE, IT IS NOT RELEVANT
FOR ME TO IMPLY ANY OPINION ON THE MERITS OF ANY OF THESE POSSIBLE
COURSES OF ACTION. 

ON A FAIR READING OF THE COMPLAINT, APPELLANT CHOOSE TO PURSUE ONLY
THE FIRST COURSE.  THE THEORY OF HIS ACTION, AN ATTEMPT TO RESTRAIN THE
CITY FROM TRESPASSING ON HIS LAND, IS THAT HE STILL HAS THE RIGHT TO
POSSESSION.  HIS PETITION FOR INJUNCTION BASED THIS RIGHT TO POSSESSION
SOLELY ON THE ALLEGATION THAT THE STATUTORY NOTICE WAS INSUFFICIENT. 
NOWHERE IN HIS PETITION FOR AN INJUNCTION DOES APPELLANT MAKE ANY
FACTUAL ALLEGATION THAT THE MONEY DEPOSITED BY THE COMMISSIONERS DID
NOT REPRESENT THE FAIR VALUE OF HIS LAND AND THEREFORE LEFT HIM OUT OF
POCKET.  NOWHERE DID HE INDICATE THAT HE WANTED AN INJUNCTION ONLY
UNTIL HE RECEIVED A HEARING.  THE WHOLE THEORY OF HIS PETITION IS THAT
THE PROPERTY THAT WAS BEING TAKEN WITHOUT DUE PROCESS OF LAW WAS HIS
LAND, NOT ITS MONEY VALUE.   (FN2)    IN A MEMORANDUM FILED AFTER ORAL
ARGUMENT IN THIS COURT, APPELLANT CONTENDS THAT THE ALLEGATION OF
"IRREPARABLE DAMAGE" IS A SUFFICIENT ALLEGATION OF MONETARY LOSS.  HE
STATES:  "OF COURSE, THERE COULD BE NO IRREPARABLE DAMAGE - INDEED
THERE COULD BE NO DAMAGE AT ALL - UNLESS THE AMOUNT OF THE AWARD WAS
LESS THAN THE ACTUAL VALUE OF THE PROPERTY.  HAD THIS BEEN AN ACTION
FOR DAMAGES, THEN AN ALLEGATION OF THE DIFFERENCES IN VALUE WOULD
LOGICALLY HAVE BEEN FOUND IN THE PETITION.  BUT IT WAS AN INJUNCTION
PROCEEDING." 

BUT AN ALLEGATION OF "IRREPARABLE DAMAGE" IS MERELY A LEGAL
CONCLUSION, FLOWING FROM, AND JUSTIFIED BY, THE NECESSARY ALLEGATION OF
FACTS WARRANTING INJUNCTIVE RELIEF.  THE USUAL FACTUAL ASSERTION
UNDERLYING SUCH AN ALLEGATION IN A SUIT TO RESTRAIN TRESPASS IS THAT
THE THREATENED CONTINUOUS NATURE OF THE ENTRY REPRESENTS THE
"IRREPARABLE DAMAGE."  INDEED, IN HIS PETITION FOR INJUNCTION,
APPELLANT MADE THE USUAL FACTUAL ASSERTION, IMMEDIATELY PRECEDING THE
PRAYER FOR RELIEF:

"THAT AT THE PRESENT MOMENT DEFENDANT CITY OF HUTCHINSON, EITHER
ITSELF, OR BY CONTRACTORS EMPLOYED BY IT, IS, OR IS THREATENING TO
ENTER UPON SAID REAL ESTATE OWNED BY THE PLAINTIFF, AND THIS FOR THE
PURPOSE OF BUILDING A HIGHWAY ACROSS SAID REAL ESTATE, ALL IN UTTER AND
COMPLETE DISREGARD OF THE RIGHTS OF THIS PLAINTIFF." 

IN VIEW OF THIS ASSERTION AND THE ABSENCE OF ANY OTHER ASSERTION WITH
RESPECT TO "IRREPARABLE DAMAGE," APPELLANT'S CLAIM THAT MONETARY LOSS
IS ALLEGED IS BASELESS. 

IF THE KANSAS SUPREME COURT HAD CONSTRUED THE PLEADING OF
"IRREPARABLE DAMAGE" AS IMPLYING A FACTUAL ASSERTION THAT THE AWARD WAS
LESS THAN THE FAIR VALUE OF THE LAND, I WOULD ACCEPT THAT
CONSTRUCTION.  SEE SALTONSTALL V. SALTONSTALL, 276 U.S. 260, 267-268. 
BUT THE KANSAS SUPREME COURT DID NOT CONSTRUE THE PLEADINGS AT ALL.  IT
DECIDED THE CASE BY UPHOLDING THE CONSTITUTIONALITY OF THE STATUTE. 
KANSAS HAS A RIGHT TO MAKE SUCH AN ABSTRACT DETERMINATION FOR ITSELF. 
THIS COURT, HOWEVER, CAN DECIDE ONLY "CASES" OR "CONTROVERSIES."  U.S.
CONST., ART. III, SEC. 2.  IT HAS NO CONSTITUTIONAL POWER TO RENDER
ADVISORY OPINIONS.  TO ASSUME THAT THE KANSAS COURTS CONSTRUED THESE
PLEADINGS SUB SILENTIO AS ALLEGING MONETARY LOSS IS TO EXCOGITATE.  A
MUCH MORE PROBABLE INFERENCE IS THAT SINCE THE ISSUE SO CONTROLLING FOR
THIS COURT'S JURISDICTION WAS NOT RAISED IN THE PLEADINGS, THE KANSAS
COURT DID NOT CONCERN ITSELF WITH IT.  IN ANY EVENT, LACKING AN
EXPLICIT CONSTRUCTION OF THE PLEADINGS BY THE KANSAS COURTS, WE MUST
CONSTRUE THE PLEADINGS OURSELVES TO DECIDE WHAT CONSTITUTIONAL
QUESTIONS ARE HERE RAISED ON THE RECORD AS IT COMES TO US.  SEE DOREMUS
V. BOARD OF EDUCATION, 342 U.S. 429, 432. 

IN MY VIEW, THE ONLY CONSTITUTIONAL QUESTION RAISED BY APPELLANT IS
WHETHER FAILURE TO GIVE ADEQUATE NOTICE OF THE HEARING ON COMPENSATION
OF ITSELF INVALIDATES THE TAKING OF HIS LAND, APART FROM ANY CLAIM OF
LOSS.  WE HAVE HELD MANY TIMES THAT THE STATE'S INTEREST IN THE
EXPEDITIOUS HANDLING OF CONDEMNATION PROCEEDINGS JUSTIFIES THE TAKING
OF LAND PRIOR TO PAYMENT, WITHOUT VIOLATING THE DUE PROCESS CLAUSE, SO
LONG AS ADEQUATE PROVISION FOR PAYMENT OF COMPENSATION IS MADE.   SEE,
E.G., BRAGG V. WEAVER, 251 U.S. 57, 62.  APPELLANT MUST BE ABLE TO SHOW
THAT THE PROVISIONS FOR PAYMENT, AS THEY OPERATED IN HIS CASE, WERE
INADEQUATE BEFORE HE CAN ATTACK THE KANSAS STATUTORY SCHEME FOR
COMPENSATION IN CONDEMNATION CASES.  SEE ASHWANDER V. T.V.A., 297 U.S.
288, 347 AND CASES CITED N. 6 (BRANDEIS, J., CONCURRING); CF. SMITH V.
INDIANA, 191 U.S. 138, 148-149.  SINCE ON THE RECORD BEFORE US THE
COMPENSATION WAS NOT ALLEGED TO BE INADEQUATE, THE TAKING WAS VALID AND
THE JUDGMENT OF THE KANSAS SUPREME COURT SHOULD BE AFFIRMED.  AT THE
VERY LEAST, THE CASE SHOULD BE RETURNED TO THE KANSAS COURT SO THAT WE
MAY HAVE THE BENEFIT OF ITS CONSTRUCTION OF THE PLEADINGS.  SEE
HONEYMAN V. HANAN, 300 U.S. 14. 

BUT THE COURT, WITHOUT EXPLICITLY CONSTRUING THE PLEADINGS, PASSES
UPON THE CONSTITUTIONALITY OF KAN. GEN. STAT., 1949, SEC. 26-202. 
WITHOUT INTIMATING ANY OPINION WHETHER IN THE CIRCUMSTANCES OF THIS
CASE APPELLANT WAS DENIED THE DUE PROCESS REQUIRED IN DETERMINING FAIR
COMPENSATION FOR PROPERTY TAKEN UNDER THE POWER OF EMINENT DOMAIN, I
FEEL CONSTRAINED TO POINT OUT THAT THE COURT'S DECISION DOES NOT HOLT
THE TAKING ITSELF INVALID AND THEREFORE DOES NOT REQUIRE THE KANSAS
COURT TO GRANT AN INJUNCTION SO LONG AS APPELLANT'S RIGHTS ARE
PROTECTED. 

FN1  THE IMPORTANT STATUTORY PROVISIONS OF THE KANSAS CONDEMNATION
PROCEDURE ARE SET FORTH IN THE OPINION OF THE COURT, EXCEPT FOR THE
PROVISION IN KAN. GEN. STAT., 1949, SEC.  26-204, THAT TITLE TO LANDS
CONDEMNED FOR PARKWAYS OR BOULEVARDS VESTS IN THE CITY IMMEDIATELY ON
PUBLICATION OF THE RESOLUTION OF CONDEMNATION AND THAT THE CITY'S RIGHT
TO POSSESSION OF CONDEMNED LAND VESTS WHEN THE REPORT OF THE
COMMISSIONERS IS FILED IN THE OFFICE OF THE REGISTER OF DEEDS.  KAN.
GEN. STAT., 1949, SEC. 26-204, IS AS FOLLOWS: 

"THAT THE CITY CLERK SHALL FORTHWITH, UPON ANY REPORT OF ASSESSMENT
COMMISSIONERS BEING FILED IN HIS OFFICE, PREPARE AND DEPOSIT A COPY
THEREOF IN THE OFFICE OF THE TREASURER OF SUCH CITY, AND IF THERE BE
DEPOSITED WITH THE CITY TREASURER, FOR THE BENEFIT OF THE OWNER OR
OWNERS OF SUCH LANDS, THE AMOUNT OF THE AWARD, SUCH TREASURER SHALL
THEREUPON CERTIFY SUCH FACTS UPON THE COPY OF THE REPORT, AND SHALL PAY
SAID AWARDS TO SUCH PERSONS AS SHALL BE RESPECTIVELY ENTITLED THERETO
...  . THE TITLE TO LANDS CONDEMNED BY ANY CITY FOR PARKS, PARKWAYS OR
BOULEVARDS SHALL VEST IN SUCH CITY UPON THE PUBLICATION OF THE
RESOLUTION OF THE GOVERNING BODY CONDEMNING THE SAME.  UPON THE
RECORDING OF A COPY OF SAID REPORT SO CERTIFIED IN THE OFFICE OF THE
REGISTER OF DEEDS OF THE COUNTY, THE RIGHT TO THE POSSESSION OF LANDS
CONDEMNED SHALL VEST IN THE CITY AND THE CITY SHALL HAVE THE RIGHT TO
FORTHWITH TAKE POSSESSION OF, OCCUPY, USE AND IMPROVE SAID LANDS FOR
THE PURPOSES SPECIFIED IN THE RESOLUTION APPROPRIATING THE SAME." 

FN2  THE COMPLAINT IN ITS ENTIRETY IS SET FORTH IN AN APPENDIX AT THE
END OF THIS OPINION, POST, P. 122. 

FOR DISSENTING OPINION OF MR. JUSTICE BURTON, SEE POST, P. 126. 

 APPENDIX TO DISSENTING OPINION

 OF MR. JUSTICE FRANKFURTER. 

                      IN DISTRICT COURT OF RENO COUNTY, KANSAS

          "AMENDED PETITION 

"COMES NOW LEE WALKER, THE PLAINTIFF HEREIN, BY HIS ATTORNEYS, OSWALD
& MITCHELL, AND FOR HIS CAUSE OF ACTION AGAINST THE CITY OF HUTCHINSON,
RENO COUNTY, KANSAS, T.E. CHENOWETH, CITY MANAGER, ROBERT G. KING,
MAYOR AND MEMBERS OF THE CITY COMMISSION, CHARLES N. BROWN, JERRY
STREMEL, R.C. WOODWARD AND C.E. JOHNSON, MEMBERS OF THE CITY
COMMISSION, ALL OF THE CITY OF HUTCHINSON, RENO COUNTY, KANSAS,
RESPECTFULLY STATES TO THE COURT: 

"2.  THAT THE PLAINTIFF IS A RESIDENT OF HUTCHINSON, RENO COUNTY,
KANSAS, AND THAT HIS POST OFFICE ADDRESS IS 907 EAST 11TH STREET,
HUTCHINSON, KANSAS; THAT HE IS A NEGRO; THAT HE WAS BORN IN BARGTOWN,
KENTUCKY ON THE 15TH DAY OF OCTOBER, 1875; AND THAT HE HAD, AS A YOUTH,
AN EDUCATION EQUIVALENT TO THE SIXTH GRADE. 

"3.  THAT DEFENDANT CITY OF HUTCHINSON, RENO COUNTY, KANSAS IS A
MUNICIPAL CORPORATION; THAT THE ABOVE NAMED INDIVIDUAL DEFENDANTS ARE
RESPECTIVELY T.E. CHENOWETH, CITY MANAGER, ROBERT G. KING, MAYOR AND A
MEMBER OF THE CITY COMMISSION, CHARLES N. BROWN, JERRY STREMEL, R.C.
WOODARD AND C.E. JOHNSON, MEMBERS OF THE CITY COMMISSION, ALL OF THE
CITY OF HUTCHINSON. 

"4.  THAT ON OR ABOUT THE 27TH DAY OF FEBRUARY, 1905, THE PLAINTIFF
ACQUIRED FEE SIMPLE TITLE THROUGH A WARRANTY DEED, DULY EXECUTED BY ONE
ARTHUR WALKER, WHICH DEED WAS DULY RECORDED WITH THE REGISTER OF DEEDS
OF RENO COUNTY, KANSAS, ON THE 28TH DAY OF FEBRUARY, 1905, IN BOOK 85,
PAGE 479, TO THE FOLLOWING DESCRIBED REAL ESTATE, ALL SITUATED IN RENO
COUNTY, KANSAS: 

"LOTS THIRTY-SEVEN (37), THIRTY-EIGHT (38), THIRTY-NINE (39), FORTY
(40), FORTY-ONE (41), FORTY-TWO (42), FORTY-THREE (43), FORTY-FOUR
(44), FORTY-FIVE (45), FORTY-SIX (46), FORTY-SEVEN (47) AND FORTY-EIGHT
(48), BLOCK FIVE (5), MAPLE GROVE ADDITION TO THE CITY OF HUTCHINSON
...  . 

"AND EVER SINCE THAT TIME, THE PLAINTIFF HAS OWNED SAME, ENJOYED
QUIET AND PEACEFUL POSSESSION THEREOF AND LIKEWISE HAS HAD AND ENJOYED
ALL THE FRUITS OF SUCH OWNERSHIP, AND HAS PAID, FROM TIME TO TIME, ALL
ASSESSMENTS AND TAXES OF EVERY KIND AND NATURE LEGALLY ASSESSED AGAINST
SAID REAL ESTATE; THAT HE IS THEREFORE NOW THE LEGAL AND EQUITABLE
OWNER OF SAID REAL ESTATE. 

"5.  THAT ON OR ABOUT THE 12TH DAY OF APRIL, 1954, THE DEFENDANT CITY
OF HUTCHINSON, THROUGH ITS DULY ELECTED OR APPOINTED, QUALIFIED AND
ACTING OFFICIALS, FILED AN ACTION IN THE DISTRICT COURT OF RENO COUNTY,
KANSAS, ENTITLED: 

"IN THE MATTER OF THE APPLICATION OF THE CITY OF HUTCHINSON, KANSAS,
A MUNICIPAL CORPORATION, FOR THE APPOINTMENT OF COMMISSIONERS IN THE
MATTER OF THE CONDEMNATION OF PROPERTY FOR THE ACQUISITION OF RIGHT OF
WAY FOR THE OPENING, WIDENING AND EXTENDING OF PORTIONS OF ELEVENTH
AVENUE, HARRISON STREET AND TWENTY-THIRD AVENUE IN THE CITY OF
HUTCHINSON, KANSAS  ...  . 

"THE SAME BEING DOCKETED AS CASE NO. 7867. 

"6.  THAT SAID ACTION WAS FOR THE PURPOSE OF TAKING FROM THE
PLAINTIFF AND CONDEMNING CERTAIN PORTIONS OF THE ABOVE DESCRIBED REAL
ESTATE, AS A BY-PASS, SO TO SPEAK, FOR HUTCHINSON'S SUPER-SPORTS
ARENA. 

"7.  THAT THE PLAINTIFF HAS NEVER BEEN, AT ANY TIME, NOTIFIED IN ANY
MANNER THAT THE CITY OF HUTCHINSON COVETED THE BIT OF REAL ESTATE AS A
BY-PASS TO HUTCHINSON'S SUPER-SPORTS ARENA HE HAS OWNED SINCE 1905; NOR
HAS HE EVER BEEN SERVED WITH ANY SUMMONS, NOR GIVEN ANY OTHER PERSONAL
NOTICE OF ANY KIND WHATSOEVER THAT SAID DEFENDANT CITY OF HUTCHINSON
HAD FILED THE AFORESAID ACTION FOR THE PURPOSE OF TAKING A PART OF HIS
SAID REAL ESTATE. 

"8.  THAT THE PRETENDED RIGHT OF DEFENDANT CITY OF HUTCHINSON TO THE
REAL ESTATE ABOVE LEGALLY DESCRIBED, OWNED BY THE PLAINTIFF, RESTS UPON
THE AUTHORITY, SO FAR AS THIS PLAINTIFF AND COUNSEL HAVE BEEN ABLE TO
ASCERTAIN, OF G.S. 26-201 AND 26-202, AND RENO COUNTY, KANSAS DISTRICT
COURT CASE NO. 7867, MORE FULLY DESCRIBED IN PARAGRAPH 5 HEREIN,
BROUGHT THEREUNDER, WHICH STATUTE OR STATUTES ARE VOID AND OF NO FORCE
AND EFFECT WHATSOEVER, BECAUSE SAME ATTEMPT TO VEST THE POWER IN
CERTAIN MUNICIPALITIES TO TAKE PROPERTY WITHOUT DUE PROCESS OF LAW. 

"9.  THAT THE ONLY NOTICE TO AN OWNER OF REAL PROPERTY, WHICH G.S. 26
201 AND 26-202 REQUIRES IS BY PUBLICATION, WHICH IS NOT SUFFICIENT
NOTICE UNDER THE ABOVE MENTIONED DUE PROCESS CLAUSES OF BOTH FEDERAL
AND STATE CONSTITUTIONS. 

"10.  THAT THE PLAINTIFF HAD NO ACTUAL NOTICE, AND DID NOT ACTUALLY
KNOW, OR HAVE ANY REASON TO KNOW THAT DEFENDANTS SOUGHT TO CONDEMN AND
TAKE HIS LAND, UNTIL APPROXIMATELY THE MIDDLE PART OF AUGUST, 1954;
UNLESS BY A PECULIAR QUIRK OF THE IMAGINATION, IT CAN BE SAID THAT THE
SINGLE LEGAL PUBLICATION, PUBLISHED JUST ONCE IN THE HUTCHINSON NEWS
HERALD, AND THAT ON THE 14TH DAY OF APRIL, 1954, GAVE HIM NOTICE; THAT
SAID SINGLE NOTICE SO PUBLISHED IN THE OFFICIAL NEWSPAPER WAS NOT
SUFFICIENT NOTICE TO SATISFY THE REQUIREMENTS OF THE DUE PROCESS
CLAUSES OF BOTH FEDERAL AND STATE CONSTITUTIONS. 

"11.  THAT AT THE PRESENT MOMENT DEFENDANT CITY OF HUTCHINSON, EITHER
ITSELF, OR BY CONTRACTORS EMPLOYED BY IT, IS, OR IS THREATENING TO
ENTER UPON SAID REAL ESTATE OWNED BY THE PLAINTIFF, AND THIS FOR THE
PURPOSE OF BUILDING A HIGHWAY ACROSS SAID REAL ESTATE, ALL IN UTTER AND
COMPLETE DISREGARD OF THE RIGHTS OF THIS PLAINTIFF. 

"12.  THAT THE PLAINTIFF IS ENTITLED TO AN ORDER OF THIS COURT
INSTANTER, ENJOINING AND RESTRAINING DEFENDANT CITY OF HUTCHINSON FROM
ENTERING UPON, OR IN ANY MANNER TRESPASSING UPON SAID REAL ESTATE, FOR
THE REASON, INTER ALIA, THAT THERE IS NO OTHER REMEDY, EITHER AT LAW OR
IN EQUITY, OPEN TO THE PLAINTIFF; THAT IF SAID DEFENDANT CITY OF
HUTCHINSON IS NOT SO RESTRAINED AND ENJOINED, THE PLAINTIFF WILL SUFFER
IRREPARABLE DAMAGE BY REASON THEREOF. 

"13.  THAT THE PLAINTIFF IS ADVISED THAT IN SOME ORDERS BY COURTS OF
COMPETENT JURISDICTION, IN THE GRANTING OF A RESTRAINING ORDER, OR
TEMPORARY INJUNCTION OF THIS NATURE, THE PARTY SEEKING SAME, AND
OBTAINING SAME, IS REQUIRED TO POST CERTAIN INDEMNITY OR OTHER TYPE OF
BOND OR BONDS; THAT THE PLAINTIFF HEREBY RESPECTFULLY AND HUMBLY
ADVISES THE COURT THAT BY REASON OF HIS LIMITED FINANCIAL RESOURCES, HE
CANNOT POST SUCH A BOND, AND THEREFORE ASKS, UPON THE ABOVE AND
FOREGOING STATEMENT OF FACTS, THAT THE COURT DOES NOT MAKE THE GIVING
OF SUCH A BOND OR BONDS AS A CONDITION PRECEDENT TO PLAINTIFF'S
OBTAINING A RESTRAINING ORDER OR TEMPORARY INJUNCTION AT THIS TIME. 

"14.  THAT BY REASON OF THE ABOVE AND FOREGOING FACTS, THE PLAINTIFF
IS ENTITLED TO HAVE, AND DESIRES TO HAVE A PERMANENT INJUNCTION AGAINST
DEFENDANT CITY OF HUTCHINSON, RESTRAINING AND ENJOINING IT, AND ITS
SERVANTS, AGENTS AND ALL OTHERS IN ITS EMPLOYMENT, FROM ENTERING OR
TRESPASSING UPON THE PLAINTIFF'S REAL ESTATE, ABOVE DESCRIBED, OR
PREVENTING HIM FROM OTHERWISE ENJOYING THE QUIET AND PEACEFUL ENJOYMENT
THEREOF. 

"WHEREFORE AND BY REASON OF THE FOREGOING, THE PLAINTIFF PRAYS FOR AN
IMMEDIATE ORDER OF THIS COURT RESTRAINING AND ENJOINING DEFENDANT CITY
OF HUTCHINSON FROM ENTERING OR TRESPASSING UPON THE PLAINIFF'S REAL
ESTATE, ABOVE DESCRIBED, AND THE PLAINITFF FURTHER PRAYS FOR A JUDGMENT
OF THIS COURT PERMANENTLY ENJOINING AND RESTRAINING THE CITY OF
HUTCHINSON FROM ENTERING OR TRESPASSING UPON PLAINTIFF'S REAL ESTATE,
ABOVE DESCRIBED; AND PLAINTIFF FURTHER PRAYS FOR JUDGMENT FOR HIS COSTS
HEREIN, AND FOR SUCH OTHER AND FURTHER RELIEF AS TO THIS COURT SEEM
JUST AND EQUITABLE."    MR. JUSTICE BURTON, DISSENTING. 

IF THE ISSUE IN THIS CASE IS THE CONSTITUTIONALITY OF THE STATUTORY
PROVISION MADE FOR TAKING THE PROPERTY, ITS CONSTITUTIONALITY SEEMS
CLEAR.  IF, AS I ASSUME TO BE THE CASE, THE ISSUE IS THE CONSTITUTIONAL
SUFFICIENCY OF THE STATUTORY TEN-DAY NOTICE BY PUBLICATION OF THE
HEARING TO ASSESS THE COMPENSATION FOR THE LAND TAKEN, I CONSIDER SUCH
A PROVISION TO BE WITHIN THE CONSTITUTIONAL DISCRETION OF THE LAWMAKING
BODY OF THE STATE.    IN WEIGHING THE "DUE PROCESS" OF CONDEMNATION
PROCEDURE SOME REASONABLE BALANCE MUST BE STRUCK BETWEEN THE NEEDS OF
THE PUBLIC TO ACQUIRE THE PROPERTY, AND THE OPPORTUNITY FOR A HEARING
AS TO THE COMPENSATION TO BE PAID FOR THE PROPERTY.  JUST COMPENSATION
IS CONSTITUTIONALLY NECESSARY, BUT THE LENGTH AND KIND OF NOTICE OF THE
PROCEEDING TO DETERMINE SUCH COMPENSATION IS LARGELY A MATTER OF
LEGISLATIVE DISCRETION.  THE MINIMUM NOTICE REQUIRED BY THIS STATUTE
MAY SEEM TO SOME TO BE INADEQUATE OR UNDESIRABLY SHORT, BUT IT WAS
SATISFACTORY TO THE LAWMAKERS OF KANSAS.  IT ALSO HAS BEEN UPHELD BY
THE SUPREME COURT OF KANSAS AND THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT.  TO PROSCRIBE IT AS VIOLATIVE OF THE FEDERAL
CONSTITUTION FAILS TO ALLOW ADEQUATE SCOPE TO LOCAL LEGISLATIVE
DISCRETION.  ACCORDINGLY, WHILE NOT PASSING UPON THE DESIRABILITY OF
THE STATUTORY REQUIREMENT BEFORE US, I AM NOT READY TO HOLD THAT THE
CONSTITUTION OF THE UNITED STATES PROHIBITS THE PEOPLE OF KANSAS FROM
CHOOSING THAT STANDARD.  PARTICULARLY, I AM NOT READY TO THROW A
NATIONWIDE CLOUD OF UNCERTAINTY UPON THE VALIDITY OF CONDEMNATION
PROCEEDINGS BASED ON COMPLIANCE WITH SIMILAR LOCAL STATUTES.  SINCE
1889, IT HAS BEEN SETTLED THAT NOTICE BY PUBLICATION IN CONDEMNATION
PROCEEDINGS TO TAKE AND TO FIX THE VALUE TO BE PAID FOR THE LAND OF A
NONRESIDENT COMPORTS WITH DUE PROCESS.  HULING V. KAW VALLEY R. CO.,
130 U.S. 559.  SEE ALSO, NORTH LARAMIE LAND CO. V. HOFFMAN, 268 U.S.
276, 283-287; BRAGG V. WEAVER, 251 U.S. 57. 

I AGREE WITH THE COURT BELOW AND WITH THE OPINION OF THE COURT OF
APPEALS FOR THE TENTH CIRCUIT RENDERED IN THE COMPARABLE CASE OF
COLLINS V. WICHITA, 225 F.2D 132, WHICH CAME TO OUR ATTENTION AT THE
LAST TERM OF COURT AND IN WHICH CERTIORARI WAS DENIED ON NOVEMBER 7,
1955, 350 U.S. 886.  THEREFORE, I WOULD AFFIRM THE JUDGMENT HERE. 
..END :





















MASSACHUSETTS BONDING & INSURANCE CO. V. UNITED STATES 352 U.S. 128 


NO. 31.  ARGUED NOVEMBER 8, 1956 - DECIDED DECEMBER 10, 1956 - 227 F.2D
385, REVERSED. 


IN AN ACTION UNDER THE FEDERAL TORT CLAIMS ACT, PLAINTIFFS SOUGHT
DAMAGES FROM THE UNITED STATES FOR A DEATH ALLEGED TO HAVE BEEN CAUSED
BY THE NEGLIGENCE OF FEDERAL EMPLOYEES IN MASSACHUSETTS.  UNDER THE
MASSACHUSETTS DEATH ACT, THE STANDARD OF LIABILITY FOR WRONGFUL DEATH
IS PUNITIVE AND THE MAXIMUM AMOUNT RECOVERABLE IS $20,000.  THE TORT
CLAIMS ACT PROVIDES THAT THE UNITED STATES SHALL NOT BE LIABLE FOR
PUNITIVE DAMAGES; AND THAT, WHERE THE LAW OF THE PLACE PROVIDES "FOR
DAMAGES ONLY PUNITIVE IN NATURE," THE UNITED STATES SHALL BE LIABLE FOR
"ACTUAL OR COMPENSATORY DAMAGES, MEASURED BY THE PECUNIARY INJURIES
RESULTING FROM SUCH DEATH."  HELD:  THE AMOUNT OF DAMAGES RECOVERABLE
FROM THE UNITED STATES AS COMPENSTORY DAMAGES IS NOT LIMITED TO THE
MAXIMUM AMOUNT RECOVERABLE UNDER THE MASSACHUSETTS DEATH ACT.  PP. 128
134. 

MASSACHUSETTS BONDING & INSURANCE CO. ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SECS.
1346(B), 2674, TO RECOVER MONEY DAMAGES FROM THE UNITED STATES ON
ACCOUNT OF THE DEATH OF ONE CROWLEY, CAUSED BY NEGLIGENT OPERATION OF
TRAVELING CRANES BY VARIOUS GOVERNMENT EMPLOYEES IN A FEDERAL ARSENAL
LOCATED IN MASSACHUSETTS.  (FN1)  THE ACT MAKES THE UNITED STATES
LIABLE FOR THE NEGLIGENCE OF ITS EMPLOYEES "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."  28 U.S.C. SEC. 1346(B).  THAT PROVISION MAKES THE LAW OF
MASSACHUSETTS GOVERN THE LIABILITY OF THE UNITED STATES FOR THIS TORT. 

THE MASSACHUSETTS DEATH ACT, IN RELEVANT PART, PROVIDES THAT A
PERSON, WHOSE AGENTS OR SERVANTS BY NEGLIGENCE CAUSE THE DEATH OF
ANOTHER NOT IN HIS EMPLOYMENT OR SERVICE, "SHALL BE LIABLE IN DAMAGES
IN THE SUM OF NOT LESS THAN TWO THOUSAND NOR MORE THAN TWENTY THOUSAND
DOLLARS, TO BE ASSESSED WITH REFERENCE TO THE DEGREE OF HIS CULPABILITY
OR OF THAT OF HIS AGENTS OR SERVANTS."  MASS. ANN. LAWS, 1955, C. 229,
SEC. 2C.  THE ASSESSMENT OF DAMAGES WITH REFERENCE TO THE DEGREE OF
CULPABILITY OF THE TORT-FEASOR, RATHER THAN WITH REFERENCE TO THE
AMOUNT OF PECUNIARY LOSS SUFFERED BY THE NEXT OF KIN, MAKES THOSE
DAMAGES PUNITIVE IN NATURE.  THAT HAS BEEN THE HOLDING OF THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS.  AS STATED IN MACCHIAROLI V. HOWELL,
294 MASS. 144, 147, 200 N.E. 905, 906-907, "THE CHIEF CHARACTERISTIC OF
THE STATUTE IS PENAL."  AND SEE ARNOLD V. JACOBS, 316 MASS. 81, 84, 54
N.E.2D 922, 923; PORTER V. SORELL, 280 MASS. 457, 460-461, 182 N.E.2D
837, 838-839. 

THE TORT CLAIMS ACT, HOWEVER, PROVIDES IN 28 U.S.C. SEC. 2674 THAT: 

"THE UNITED STATES SHALL BE LIABLE  ...  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. 

"IF, HOWEVER, IN ANY CASE WHEREIN DEATH WAS CAUSED, THE LAW OF THE
PLACE WHERE THE ACT OR OMISSION COMPLAINED OF OCCURRED PROVIDES, OR HAS
BEEN CONSTRUED TO PROVIDE, FOR DAMAGES ONLY PUNITIVE IN NATURE, THE
UNITED STATES SHALL BE LIABLE FOR ACTUAL OR COMPENSATORY DAMAGES,
MEASURED BY THE PECUNIARY INJURIES RESULTING FROM SUCH DEATH TO THE
PERSONS RESPECTIVELY, FOR WHOSE BENEFIT THE ACTION WAS BROUGHT, IN LIEU
THEREOF." 

THE DISTRICT COURT ACCORDINGLY HELD THAT, SINCE THE UNITED STATES WAS
LIABLE FOR "ACTUAL OR COMPENSTORY" DAMAGES AND NOT FOR "PUNITIVE"
DAMAGES, THE MINIMUM AND MAXIMUM LIMITS CONTAINED IN THE MASSACHUSETTS
DEATH ACT WERE NOT APPLICABLE.  IT ENTERED JUDGMENT FOR THE PLAINTIFFS
IN THE AMOUNT OF $60,000.  THE COURT OF APPEALS REVERSED, HOLDING THAT
THE MASSACHUSETTS DEATH ACT, THOUGH PUNITIVE, SETS THE MAXIMUM THAT MAY
BE RECOVERED IN COMPENSATORY DAMAGES UNDER THE TORT CLAIMS ACT.  227
F.2D 385.  THE CASE IS HERE ON CERTIORARI WHICH WE GRANTED TO REVIEW
THIS IMPORTANT QUESTION OF CONSTRUCTION OF THE TORT CLAIMS ACT.  350
U.S. 980. 

THE PROVISION OF THE ACT, MAKING THE UNITED STATES LIABLE "FOR ACTUAL
OR COMPENSATORY DAMAGES" WHERE THE LAW OF THE PLACE PROVIDES "FOR
DAMAGES ONLY PUNITIVE IN NATURE," GOES BACK TO A 1947 AMENDMENT. 
ALABAMA (FN2) AND MASSACHUSETTS (FN3) AWARD ONLY PUNITIVE DAMAGES FOR
WRONGFUL DEATHS.  CONTROVERSIES SOON AROSE IN THOSE TWO STATES IN SUITS
UNDER THE ACT, THE GOVERNMENT MAINTAINING THAT, SINCE LOCAL LAW
ASSESSED ONLY "PUNITIVE DAMAGES," IT WAS NOT LIABLE.  SEVERAL BILLS
WERE INTRODUCED TO REMEDY THE SITUATION.  (FN4)  BUT THE SOLUTION
AGREED UPON WAS IN A PROPOSAL TENDERED BY THE COMPTROLLER GENERAL.  IN
REFERENCE TO THE ALABAMA AND MASSACHUSETTS RULE, THE SPOKESMAN OF THE
COMPTROLLER GENERAL STATED:  (FN5) 

"SINCE IN THOSE TWO STATES COMPENSATORY DAMAGES ARE NOT ALLOWED, ALL
THAT IS REQUIRED IS TO AMEND THE FEDERAL TORT CLAIMS ACT TO SAY THAT IN
SUCH STATES COMPENSATORY DAMAGES SHALL BE ALLOWED  ...  .  IT IS
BELIEVED THAT THAT SUGGESTION WOULD ELIMINATE THE DISCREPANCY AND WOULD
MAKE THE SETTLEMENT OF CLAIMS IN THOSE TWO STATES TO BE EXACTLY IN
ACCORD WITH THE GENERAL RULES FOLLOWED IN THE OTHER 46 STATES  ...  ." 

THE GOVERNMENT SEIZES ON THIS STATEMENT AND LIKE ONES IN THE
COMMITTEE REPORTS (SEE S. REP. NO. 763, 80TH CONG., 1ST SESS., P. 2;
H.R. REP. NO. 748, 80TH CONG., 1ST SESS., P. 2) TO ARGUE THAT UNLESS
THE CEILING PROVIDED IN THE MASSACHUSETTS LAW IS RESPECTED,
DISCRIMINATION AGAINST THE UNITED STATES WILL BE SHOWN IN
MASSACHUSETTS, SINCE OVER A DOZEN STATES HAVE CEILINGS ON COMPENSATORY
DAMAGES.  IT IS ALSO ARGUED THAT THE SOLE PURPOSE OF THE AMENDMENT WAS
TO PERMIT RECOVERY FOR WRONGFUL DEATH IN THE TWO STATES WHERE PUNITIVE
DAMAGES COULD BE AWARDED, NOT TO ALTER THE MEASURE OF RECOVERY IN THOSE
STATES.  IT IS TRUE THAT CONGRESS WAS NOT LEGISLATING AS TO CEILINGS. 
CONGRESS WAS, HOWEVER, LEGISLATING AS TO THE MEASURE OF THE DAMAGES
THAT COULD BE RECOVERED AGAINST THE UNITED STATES.  AS A RESULT OF THE
1947 AMENDMENT, THE UNITED STATES BECAME LIABLE NOT FOR "PUNITIVE
DAMAGES" BUT FOR "ACTUAL OR COMPENSATORY" DAMAGES, WHERE THE LAW OF THE
PLACE PROVIDES FOR DAMAGES "ONLY PUNITIVE IN NATURE."  28 U.S.C. SEC.
2674.  THE MEASURE OF DAMAGES ADOPTED WAS "THE PECUNIARY INJURIES"
RESULTING FROM THE DEATH. 

IT IS ARGUED THAT MASSACHUSETTS DOES NOT PROVIDE DAMAGES "ONLY
PUNITIVE IN NATURE" WITHIN THE MEANING OF THE ACT; THAT EVEN PUNITIVE
DAMAGES SERVE A REMEDIAL END, AS RECOGNIZED BY THE MASSACHUSETTS COURT
UNDER THAT STATE'S DEATH ACT.  SEE SULLIVAN V. HUSTIS, 237 MASS. 441,
447, 130 N.E. 247, 249-250; PUTNAM V. SAVAGE, 244 MASS. 83, 85, 138
N.E. 808, 809.  IT IS SAID THAT MASSACHUSETTS LAW DOES NOT PROVIDE TRUE
PUNITIVE DAMAGES SINCE THE LATTER ARE NEVER AWARDED FOR NEGLIGENCE
ALONE AND ARE GENERALLY IMPOSED IN ADDITION TO, NOT IN LIEU OF,
COMPENSATORY DAMAGES.  THESE AND RELATED REASONS ARE ADVANCED FOR
TREATING THE MASSACHUSETTS MEASURE OF DAMAGES AS THE MEASURE OF "ACTUAL
OR COMPENSATORY" DAMAGES RECOVERABLE AGAINST THE UNITED STATES UNDER
THE ACT. 

WE REJECT THAT REASONING.  THE STANDARD OF LIABILITY IMPOSED BY THE
CONGRESS IS AT WAR WITH THE ONE PROVIDED BY MASSACHUSETTS.  THE
STANDARD OF LIABILITY UNDER THE MASSACHUSETTS DEATH ACT IS PUNITIVE -
I.E., "WITH REFERENCE TO THE DEGREE" OF CULPABILITY - NOT
COMPENSATORY.  THE STANDARD UNDER THE TORT CLAIMS ACT IS
"COMPENSATORY," I.E., "MEASURED BY THE PECUNIARY INJURIES" RESULTING
FROM THE DEATH.  THERE IS NOTHING IN THE MASSACHUSETTS LAW WHICH
MEASURES THE DAMAGES BY "PECUNIARY INJURIES."  THE MASSACHUSETTS LAW,
THEREFORE, CANNOT BE TAKEN TO DEFINE THE NATURE OF THE DAMAGES THAT CAN
BE RECOVERED UNDER THE TORT CLAIMS ACT. 

IN THOSE STATES WHERE PUNITIVE DAMAGES ONLY ARE ALLOWED FOR WRONGFUL
DEATH, A LIMITATION ON THE AMOUNT OF LIABILITY HAS NO RELEVANCE TO THE
POLICY OF PLACING LIMITS ON LIABILITY WHERE DAMAGES ARE ONLY
COMPENSATORY.  BY DEFINITION, PUNITIVE DAMAGES ARE BASED UPON THE
DEGREE OF THE DEFENDANT'S CULPABILITY.  WHERE A STATE LEGISLATURE
IMPOSES A MAXIMUM LIMIT ON SUCH A PUNITIVE MEASURE, IT HAS DECIDED THAT
THIS IS THE HIGHEST PUNISHMENT WHICH SHOULD BE IMPOSED ON A WRONGDOER. 
THIS LIMITATION, BASED AS IT IS ON CONCEPTS OF PUNISHMENT, CANNOT
CONTROL A RECOVERY FROM WHICH CONGRESS HAS ELIMINATED ALL
CONSIDERATIONS OF PUNISHMENT. 

NOR CAN IT BE CONCLUDED THAT THE AMENDMENT WAS DESIGNED TO REMOVE
DISCRIMINATION IN ALABAMA AND MASSACHUSETTS BETWEEN THE RECOVERIES
ALLOWED IN SUITS AGAINST THE GOVERNMENT AND IN SUITS AGAINST INDIVIDUAL
DEFENDANTS.  THE AMENDMENT, IN FACT, PERPETUATES THOSE DIFFERENCES.  IN
SUITS IN THOSE STATES, RECOVERY AGAINST THE GOVERNMENT AND AGAINST A
PRIVATE DEFENDANT WILL NOT BE THE SAME IN IDENTICAL CIRCUMSTANCES. 
WHERE THE DEGREE OF FAULT IS HIGH, BUT THE PECUNIARY INJURY SLIGHT, A
LARGE RECOVERY WILL REPRESENT THE DEGREE OF THE INDIVIDUAL DEFENDANT'S
CULPABILITY, BUT THE GOVERNMENT WILL BE LIABLE ONLY FOR THE SLIGHT
AMOUNT OF DAMAGE ACTUALLY DONE.  ON THE OTHER HAND, WHERE FAULT IS
SLIGHT, BUT THE PECUNIARY INJURY GREAT, THE INDIVIDUAL DEFENDANT'S
LIABILITY WILL SIMILARLY BE LESS THAN THAT OF THE GOVERNMENT.  THESE
DIFFERENCES IN RECOVERY ARE INHERENT IN THE DIFFERENT MEASURES OF
DAMAGES APPLICABLE IN SUITS AGAINST THE GOVERNMENT AND AGAINST A
PRIVATE DEFENDANT WHERE THE STATE CHOOSES TO PROVIDE A PUNITIVE MEASURE
OF DAMAGES FOR WRONGFUL DEATH.  BY ADOPTING IN SUCH A STATE A
COMPENSATORY MEASURE OF DAMAGES IN SUITS AGAINST THE GOVERNMENT,
CONGRESS DELIBERATELY CHOSE TO PERMIT THESE SUBSTANTIAL DIFFERENCES IN
RECOVERY TO EXIST.  WE THEREFORE CANNOT INFER THAT CONGRESS HAS, AT THE
SAME TIME, PROVIDED THAT MAXIMUM RECOVERIES BE IDENTICAL. 

THE SOLUTION THAT CONGRESS CHOSE WAS (A) THE ADOPTION OF THE LOCAL
LAW - WHETHER PUNITIVE OR COMPENSATORY - TO DETERMINE THE EXISTENCE OF
LIABILITY OF THE UNITED STATES, AND (B) THE SUBSTITUTION OF
"COMPENSATORY" FOR "PUNITIVE" DAMAGES WHERE LOCAL LAW PROVIDES ONLY THE
LATTER.  WHEN CONGRESS REJECTED LIABILITY FOR "PUNITIVE" DAMAGES, WE
CONCLUDE IT WENT THE WHOLE WAY AND MADE INOPERATIVE THE RULES OF LOCAL
LAW GOVERNING THE IMPOSITION OF "PUNITIVE" DAMAGES.  WHEN CONGRESS
ADOPTED "ACTUAL OR COMPENSATORY DAMAGES," MEASURED BY THE "PECUNIARY
INJURIES," AS THE MEASURE OF LIABILITY IN THOSE STATES THAT AWARDED
DAMAGES "ONLY PUNITIVE IN NATURE," WE CONCLUDE IT DID NOT PRESERVE AS A
LIMITATION ON "COMPENSATORY" DAMAGES THE LIMITATION IMPOSED BY LOCAL
LAW ON "PUNITIVE" DAMAGES.  IT WOULD REQUIRE CONSIDERABLE TAILORING OF
THE ACT TO MAKE IT READ THAT WAY.  WE REFUSE THE INVITATION TO ACHIEVE
THE RESULT BY JUDICIAL INTERPRETATION.  REVERSED. 

FN1  PLAINTIFFS WERE THE ADMINISTRATRIX OF CROWLEY AND THE INSURER OF
CROWLEY'S EMPLOYER.  THE LATTER, HAVING PAID COMPENSATION TO THE
DECEDENT'S DEPENDENTS, WAS ENTITLED TO SUE THE TORT-FEASOR UNDER THE
MASSACHUSETTS WORKMEN'S COMPENSATION ACT.  MASS. ANN. LAWS, 1949, C.
152, SEC. 15. 

FN2  ALA. CODE, 1940, TIT. 7, SEC. 123; SOUTHERN R. CO. V. SHERRILL,
232 ALA. 184, 193, 167 SO. 731, 739-740; LOUISVILLE & N.R. CO. V.
DAVIS, 236 ALA. 191, 198, 181 SO. 695, 699-700; JACK COLE, INC. V.
WALKER, 240 ALA. 683, 200 SO. 768. 

FN3  FOR THE PERIOD FROM JANUARY 1, 1947, TO DECEMBER 31, 1949,
MASSACHUSETTS PROVIDED FOR A $2,000 MINIMUM AND A $15,000 MAXIMUM UNDER
A DEATH ACT PROVIDING COMPENSATORY DAMAGES.  MASS. ACTS, 1947, C. 506. 
SEE BEATTY V. FOX, 328 MASS. 216, 102 N.E.2D 781.  BUT ON JANUARY 1,
1950, MASSACHUSETTS REVERTED TO ITS SYSTEM OF PUNITIVE DAMAGES.  MASS.
ACTS 1949, C. 427.  THE CEILING ON THE RECOVERY WAS RAISED TO $20,000
IN 1951.  MASS. ACTS 1951, C. 250. 

FN4 H.R. 3668, 80TH CONG., 1ST SESS., WHICH WOULD HAVE MADE THE
UNITED STATES LIABLE FOR PUNITIVE DAMAGES WHERE STATE LAW PROVIDED ONLY
FOR PUNITIVE DAMAGES; H.R. 3690, WHICH IN ITS ORIGINAL FORM WOULD HAVE
REPEALED THE PROHIBITION AGAINST AWARD OF PUNITIVE DAMAGES. 

FN5  THE HEARINGS, EXCERPTS OF WHICH ARE FURNISHED US IN THE
GOVERNMENT'S BRIEF, ARE NOT PRINTED. 

MR. JUSTICE HARLAN, CONCURRING. 

ALTHOUGH I JOIN IN THE COURT'S OPINION IN THIS CASE, THE IMPORTANCE
OF THE QUESTION IMPELS ME TO ADD A WORD TO WHAT MR. JUSTICE DOUGLAS HAS
WRITTEN.  THE PROBLEM IS NOT AN EASY ONE, AND I DO NOT THINK THAT
INQUIRY CAN STOP WITH A LITERAL READING OF THE TERMS OF THE STATUTE,
PLAIN THOUGH THEY MAY APPEAR TO BE.  TAKING, AS I THINK WE SHOULD, SEC.
2674(2) WITHIN THE WIDER CONTEXT OF THE PURPOSE OF THE TORT CLAIMS ACT
AS A WHOLE, I AM STILL NOT CONVINCED THAT CONGRESS INTENDED THE $20,000
LIMITATION IN THE MASSACHUSETTS PUNITIVE STATUTE TO APPLY TO RECOVERIES
UNDER THE TORT CLAIMS ACT. 

IN APPLYING THAT LIMITATION, THE UNDERLYING REASONING OF THE COURT OF
APPEALS WAS THAT SEC. 2674(2) MUST NOT BE READ AS SUBVERTING THE
OVERRIDING PHILOSOPHY OF THE TORT CLAIMS ACT, THAT IS, THAT THE
GOVERNMENT SHOULD BE LIABLE "IN THE SAME MANNER AND TO THE SAME EXTENT"
AS A PRIVATE INDIVIDUAL UNDER STATE LAW WOULD BE LIABLE.  IT THEREFORE
ARGUED THAT ALTHOUGH SEC. 2674(2) DEPARTED FROM THIS PHILOSOPHY WHEN IT
MADE RECOVERY COMPENSATORY RATHER THAN PUNITIVE IN INSTANCES WHERE THE
STATE REMEDY WAS PUNITIVE, THE SECTION IN EVERY OTHER RESPECT SHOULD BE
CONSTRUED HARMONIOUSLY WITH THIS PHILOSOPHY, AND THAT THEREFORE MAXIMA
IN STATE STATUTES SHOULD APPLY TO RECOVERIES AGAINST THE GOVERNMENT AS
WELL AS PRIVATE INDIVIDUALS, EVEN THOUGH SUCH A STATUTE IS PUNITIVE. 

BUT IT SEEMS TO ME THAT THE WHOLE PURPOSE AND REASON FOR THE
ENACTMENT OF SEC. 2674(2) WAS TO DIFFERENTIATE BETWEEN THE GOVERNMENT
AND PRIVATE DEFENDANTS IN THE "MANNER" AND "EXTENT" OF RECOVERY IN THE
PARTICULAR CASES WHERE IT APPLIED, AND I CAN FIND NO GOOD REASON FOR
GIVING THE SECTION ONLY PARTIAL EFFECT.  IN NO CASE IN ALABAMA OR
MASSACHUSETTS WILL A PLAINTIFF RECOVER FROM THE GOVERNMENT "IN THE SAME
MANNER" AS HE WOULD AGAINST AN INDIVIDUAL DEFENDANT, AND IN NO CASE,
EXCEPT BY FORTUITOUS CIRCUMSTANCE, WILL HE RECOVER TO "THE SAME
EXTENT."  IN BOTH OF THESE STATES IF A HIGHLY CULPABLE DEFENDANT CAUSES
SMALL PECUNIARY INJURY, HE WILL BE "PUNISHED" AT A HIGH FIGURE, WHEREAS
THE GOVERNMENT WILL MERELY PAY THE SMALL AMOUNT OF COMPENSATION.  OR IF
A MERELY CARELESS DEFENDANT CAUSES HIGH PECUNIARY DAMAGE, HE IS
PUNISHED AT A LOW FIGURE UNDER STATE LAW, WHILE THE GOVERNMENT MUST PAY
FOR THE HEAVY DAMAGE DONE.  IN BOTH CASES, THE EFFECT OF THE STATUTE IS
TO MAKE THE GOVERNMENT LIABLE IN A DIFFERENT MANNER AND TO A DIFFERENT
EXTENT THAN A PRIVATE INDIVIDUAL UNDER THE SAME CIRCUMSTANCES; THIS,
INDEED, WAS THE VERY PURPOSE OF THE AMENDMENT.  I THEREFORE DO NOT SEE
WHY THIS PURPOSEFUL DIFFERENTIATION IN "MANNER" AND "EXTENT" OF
RECOVERY SHOULD STOP AT THE PROBLEM OF MAXIMUM RECOVERIES.  SINCE THE
GOVERNMENT IS BY THE VERY STATUTE MADE LIABLE ON A DIFFERENT BASIS THAN
A PRIVATE INDIVIDUAL AND WILL IN EVERY CASE PAY A DIFFERENT AMOUNT THAN
WOULD A PRIVATE INDIVIDUAL, WHY DOES IT OFFEND THE PHILOSOPHY OF THE
ACT TO MAKE THE GOVERNMENT LIABLE FOR MORE THAN PRIVATE INDIVIDUAL
WOULD PAY?  THUS, WHILE IT IS TRUE THAT IN GENERAL THE TORT CLAIMS ACT
MAKES THE UNITED STATES PRO TANTO A PRIVATE DEFENDANT, THE VERY PURPOSE
OF SEC. 2674(2) WAS TO PREVENT THIS ASSIMILATION IN STATES WHERE
RECOVERY IS PUNITIVE.  IT SEEMS TO ME, THEREFORE, THAT THERE IS NO
REASON TO RE-ESTABLISH THE ASSIMILATION ON THIS ONE MATTER OF MAXIMUM
ALLOWABLE RECOVERY. 

FURTHERMORE, I FIND IT UNLIKELY THAT CONGRESS WOULD HAVE INTENDED TO
SUBJECT PLAINTIFFS TO A MAXIMUM WHICH WAS ESTABLISHED FOR REASONS OF
POLICY IRRELEVANT TO LITIGATION UNDER THE TORT CLAIMS ACT. 
MASSACHUSETTS HAS DECIDED THAT FOR REASONF OF POLICY - POSSIBLY BECAUSE
OF THE DANGER OF EXCESSIVE JURY VERDICTS IN "PUNITIVE" CASES - RECOVERY
UNDER ITS PUNITIVE STATUTE SHOULD BE LIMITED TO $20,000.  THE STATUTE
BEING PENAL, IT EMBODIES THE JUDGMENT OF THE LEGISLATURE THAT THE
HIGHEST PUNISHMENT THAT SHOULD BE IMPOSED FOR NONHOMICIDAL DEATH IS
THIS FIGURE.  BUT AS SOON AS PUNISHMENT HAS NOTHING TO DO WITH THE
LAWSUIT - AS IT DOES NOT IN SUITS UNDER SEC. 2674(2) - AND AS SOON AS
RECOVERY IS FOR COMPENSATION OF THE VICTIM RATHER THAN PUNISHMENT, THEN
THE POLICY REASONS ON WHICH THE $20,000 LIMIT ARE BASED VANISH. 
MASSACHUSETTS MIGHT, OF COURSE, IMPOSE A LIMIT ON COMPENSATORY
RECOVERIES AS WELL.  IT DID SO FOR A SHORT TIME, BUT THEN REPEALED THE
STATUTE.  BUT IT IS CLEAR THAT THE LIMIT EMBODIED IN THIS STATUTE HAS
NOTHING TO DO WITH A COMPENSATORY SUIT; THE FACTORS WHICH LED TO THE
IMPOSITION OF THIS MAXIMUM ARE IRRELEVANT WHEN DAMAGES ARE NOT
PUNITIVE.  IT WOULD THEREFORE SEEM TO ME JUST AS ARTIFICIAL TO TAKE THE
$20,000 LIMIT OF THIS STATUTE AND IMPOSE IT ON A TORT CLAIMS ACT
RECOVERY AS IT WOULD BE TO USE AS A LIMIT A MAXIMUM FIGURE TAKEN FROM A
STATE CRIMINAL STATUTE IMPOSING A FINE FOR NEGLIGENT HOMICIDE.  THE
LIMITATION IN THE MASSACHUSETTS PENAL STATUTE WAS ARRIVED AT UNDER
PENAL CONCEPTS, AND SHOULD NOT BE ARTIFICIALLY IMPOSED ON A RECOVERY
FROM WHICH PENAL CONSIDERATIONS HAVE BEEN ELIMINATED BY CONGRESSIONAL
MANDATE. 

THE COURT OF APPEALS SUGGESTS THAT IF THE MASSACHUSETTS "PUNITIVE"
MAXIMUM WERE NOT APPLICABLE, THE GOVERNMENT WOULD BE PUT AT A UNIQUE
DISADVANTAGE IN MASSACHUSETTS, SINCE THE DEATH STATUTES OF SOME TWELVE
OTHER STATES PLACE LIMITATIONS ON RECOVERY WHICH CONCEDEDLY WOULD BE
APPLICABLE TO THE UNITED STATES UNDER THE PROVISIONS OF THE TORT CLAIMS
ACT.  BUT THE LIMITATIONS IN THESE OTHER STATES ALL RELATE TO
COMPENSATION STATUTES, AND I DO NOT, OF COURSE, SUGGEST THAT SUCH A
LIMITATION IN MASSACHUSETTS WOULD NOT ALSO APPLY TO THE GOVERNMENT. 
THE RESULTING LACK OF SYMMETRY IN THE OPERATION OF THE ACT AS BETWEEN
MASSACHUSETTS AND THE OTHER STATES HAVING DEATH RECOVERY MAXIMA, SEEMS
TO ME NO GREATER THAN IT IS AS BETWEEN SUCH STATES AND THOSE WHICH
IMPOSE NO MONETARY LIMITATION ON DEATH RECOVERIES.  MOREOVER, SYMMETRY
IN THE FIRST ASPECT CAN ONLY BE ACHIEVED AT THE EXPENSE OF OFFENDING
"THE GENERAL SCHEME OF THE TORT CLAIMS ACT TO REFER QUESTIONS OF
LIABILITY OF THE UNITED STATES TO THE PROVISIONS OF 'THE LAW OF THE
PLACE WHERE THE ACT OR OMISSION COMPLAINED OF OCCURRED,'"* SINCE
MASSACHUSETTS DOES NOT RECOGNIZE COMPENSATORY ACTIONS. 

*227 F.2D 385, 391. 

I THINK, THEREFORE, THAT RECOVERY OF ACTUAL COMPENSATORY DAMAGES IS,
IN THIS CASE, IN FULL ACCORD WITH THE PHILOSOPHY OF THE TORT CLAIMS
ACT. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED, MR. JUSTICE CLARK,
AND MR. JUSTICE BRENNAN JOIN, DISSENTING. 

THE SCOPE OF THIS CASE, THOUGH INVOLVING A GENERAL ACT OF CONGRESS,
IS GEOGRAPHICALLY CONSTRICTED; THE HOLDING IS APPLICABLE ONLY TO
ACTIONS UNDER THE FEDERAL TORT CLAIMS ACT ARISING OUT OF WRONGFUL
DEATHS IN MASSACHUSETTS.  THE COURT, FINDING THE WORDS OF THE FEDERAL
TORT CLAIMS ACT CLEAR, REVERSED THE JUDGMENT OF THE COURT OF APPEALS,
WHICH HAS SPECIAL RESPONSIBILITY FOR INTERPRETING FEDERAL LAW IN
MATTERS UNIQUE TO ITS CIRCUIT. 

UNDERLYING THE COURT'S REASONING IS THE BELIEF THAT THE LANGUAGE OF
THE 1947 AMENDMENT IS SO CLEAR THAT IT WOULD REQUIRE CREATIVE
RECONSTRUCTION OF THE AMENDMENT TO LIMIT THE AMOUNT OF THE JUDGMENT TO
THE MAXIMUM RECOVERABLE UNDER THE MASSACHUSETTS DEATH ACT.  ON MORE
THAN ONE OCCASION, BUT EVIDENTLY NOT FREQUENTLY ENOUGH, JUDGE LEARNED
HAND HAS WARNED AGAINST RESTRICTING THE MEANING OF A STATUTE TO THE
MEANING OF ITS "PLAIN" WORDS.  "THERE IS NO SURER WAY TO MISREAD ANY
DOCUMENT THAN TO READ IT LITERALLY  ...  ."  GUISEPPI V. WALLING, 144
F.2D 608, 624 (CONCURRING OPINION).  OF COURSE ONE BEGINS WITH THE
WORDS OF A STATUTE TO ASCERTAIN ITS MEANING, BUT ONE DOES NOT END WITH
THEM.  THE NOTION THAT THE PLAIN MEANING OF THE WORDS OF A STATUTE
DEFINES THE MEANING OF THE STATUTE REMINDS ONE OF T.H. HUXLEY'S GAY
OBSERVATION THAT AT TIMES "A THEORY SURVIVES LONG AFTER ITS BRAINS ARE
KNOCKED OUT."  ONE WOULD SUPPOSE THAT THIS PARTICULAR THEORY OF
STATUTORY CONSTRUCTION HAD HAD ITS BRAINS KNOCKED OUT IN BOSTON SAND &
GRAVEL CO. V. UNITED STATES, 278 U.S. 41, 48. 

THE WORDS OF THIS LEGISLATION ARE AS PLAIN AS THE COURT FINDS THEM TO
BE ONLY IF THE 1947 AMENDMENT IS READ IN MISLEADING ISOLATION.  AN
AMENDMENT IS NOT A REPEAL.  AN AMENDMENT IS PART OF THE LEGISLATION IT
AMENDS.  THE 1947 AMENDMENT TO THE FEDERAL TORT CLAIMS ACT OF 1946 MUST
BE READ TO HARMONIZE WITH THE CENTRAL PURPOSE OF THE ORIGINAL ACT.  THE
CENTRAL PURPOSE OF THE ORIGINAL ACT WAS TO ALLOW RECOVERY AGAINST THE
UNITED STATES ON THE BASIS AND TO THE EXTENT OF RECOVERIES FOR LIKE
TORTS COMMITTED BY PRIVATE TORTFEASORS IN THE STATE IN WHICH THE ACT OR
OMISSION GIVING RISE TO THE CLAIM AGAINST THE UNITED STATES OCCURRED. 
THE 1947 AMENDMENT FILLED THE GAP, A VERY SMALL GAP, THAT WAS DISCLOSED
IN THE SCHEME FORMUALTED BY THE 1946 ACT. 

THE GAP WAS THE SITUATION REVEALED IN TWO OF THE FORTY-EIGHT STATES,
ALABAMA AND MASSACHUSETTS.  WHEN THE FEDERAL TORT CLAIMS ACT WAS
PASSED, THE DEATH ACTS OF BOTH ALABAMA AND MASSACHUSETTS PROVIDED FOR
ASSESSMENT OF THE DEFENDANT'S LIABILITY FOR DAMAGES ON A PUNITIVE
BASIS.  IN ALABAMA, HOWEVER, THERE WAS NO MAXIMUM LIMITATION ON THE
RECOVERY, AND THE PROBLEM OF THIS CASE - WHETHER A RECOVERY IN EXCESS
OF THE STATUTORY MAXIMUM RECOVERABLE AGAINST A PRIVATE EMPLOYER CAN BE
HAD AGAINST THE UNITED STATES - IS THEREFORE UNIQUE TO RECOVERY AGAINST
THE UNITED STATES UNDER THE MASSACHUSETTS DEATH ACT.  IN FILLING THE
GAP, CONGRESS WAS CONCERNED ONLY TO PROVIDE FOR RECOVERY AGAINST THE
UNITED STATES FOR WRONGFUL DEATHS IN MASSACHUSETTS AND ALABAMA AND TO
PROVIDE FOR RECOVERY, AS DID THE ORIGINAL ACT, ON A COMPENSATORY NOT A
PUNITIVE BASIS.  THERE IS NOTHING TO INDICATE, AND IT IS UNREASONABLE
TO SUPPOSE, THAT CONGRESS MEANT A RECOVERY IN MASSACHUSETTS TO BE
UNLIMITED IN AMOUNT IN THE FACE OF THE STATE'S STATUTORY LIMITATION AT
THE SAME TIME THAT RECOVERIES IN THE DOZEN OTHER STATES WITH STATUTORY
LIMITATIONS WOULD BE RESTRICTED.  SUCH A CONSTRUCTION NOT ONLY TAKES
MASSACHUSETTS PLAINTIFFS OUT OF THE GENERAL SCHEME OF THE FEDERAL TORT
CLAIMS ACT.  IT DOES SO BY PUTTING THEM IN A BETTER POSITION THAN
PLAINTIFFS IN THE DOZEN OTHER STATES WITH STATUTORY CEILINGS.  THIS
IMPUTES TO CONGRESS A DESIRE TO CORRECT THE INEQUITY IN THE 1946 ACT BY
CREATING AN INEQUITY IN THE 1947 AMENDMENT. 

OF COURSE THE MASSACHUSETTS LIMITATION IS CONTAINED IN A STATUTE IN
WHICH DAMAGES ARE RELATED TO A PUNITIVE RATHER THAN A COMPENSATORY
BASIS.  THE PURPOSE OF THE 1947 AMENDMENT WAS TO ALLOW RECOVERY AGAINST
THE UNITED STATES WHEN THE GOVERNING STATE STATUTE MEASURED DAMAGES ON
SUCH A BASIS.  WITH THIS SOLE EXCEPTION THAT THE STATE STATUTE PUTS THE
RECOVERY ON A HARSHER BASIS, THE STATE STATUTE IS THE GOVERNING
STATUTE.  IT MAY WELL BE THAT IF MASSACHUSETTS WERE TO ENACT A STATUTE
RESTRICTING RECOVERY TO COMPENSATORY DAMAGES, IT WOULD IMPOSE A
DIFFERENT CEILING.  BUT THAT IS NO REASON FOR REJECTING THE CEILING IN
THE PRESENT STATUTE.  IT DOES NOT COMPORT WITH GOOD SENSE AND REASON TO
SUPPOSE THAT A STATE WOULD IMPOSE A HIGHER CEILING ON A RECOVERY BASED
ON COMPENSATORY DAMAGES THAN IT DOES WHEN IT ALLOWS PUNITIVE DAMAGES. 
THIS COMMON-SENSE ASSUMPTION IS SUPPORTED BY THE FACT THAT DURING THE
BRIEF PERIOD FROM 1947 THROUGH 1949, WHEN THE MASSACHUSETTS STATUTE DID
MEASURE DAMAGES SOLELY ON A COMPENSATORY BASIS, THE CEILING WAS FIXED
AT $15,000.  THIS WAS THE SAME CEILING THAT WAS IN THE PREVIOUS STATUTE
WHICH MEASURED DAMAGES ON A COMBINED PUNITIVE AND COMPENSATORY BASIS
AND THE SAME CEILING THAT WAS IN THE IMMEDIATELY SUBSEQUENT STATUTE
WHICH MEASURED DAMAGES SOLELY ON A PUNITIVE BASIS.  TO DENY EFFECT TO
THIS COMMON-SENSE ASSUMPTION IS TO ELEVATE THE LITERAL READING OF THE
1947 AMENDMENT ABOVE THE CENTRAL BASIS OF THE FEDERAL TORT CLAIMS ACT,
THE ASSIMILATION OF RECOVERY UNDER FEDERAL LAW TO RECOVERY UNDER STATE
LAW. 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT, IN AN OPINION BY CHIEF
JUDGE MAGRUDER, CONSTRUED THE 1947 AMENDMENT IN ORDER TO HARMONIZE IT
WITH THE CENTRAL PURPOSE OF THE FEDERAL TORT CLAIMS ACT.  SINCE
ELABORATION OF MY REASONS FOR AGREEING WITH THE INTERPRETATION OF THE
COURT OF APPEALS COULD ONLY BE A PARAPHRASE OF ITS OPINION, I REST MY
DISSENT FROM THE COURT'S JUDGMENT ON WHAT I REGARD AS THE SUBSTANCE OF
THAT OPINION: 

"IN THE PROCESS OF ENACTMENT OF THE FOREGOING AMENDMENT (THE 1947
ACT), THE COMMITTEE REPORTS IN BOTH THE HOUSE AND SENATE, AFTER
POINTING OUT THAT UNDER THE SCHEME OF THE FEDERAL TORT CLAIMS ACT EACH
CASE IS DETERMINED 'IN ACCORDANCE WITH THE LAW OF THE STATE WHERE THE
DEATH OCCURRED,' MADE THE FOLLOWING COMMENT: 

"'THIS BILL SIMPLY AMENDS THE FEDERAL TORT CLAIMS ACT SO THAT IT
SHALL GRANT TO THE PEOPLE OF TWO STATES THE RIGHT OF ACTION ALREADY
GRANTED TO THE PEOPLE OF THE OTHER 46. 

"'THIS BILL, WITH THE COMMITTEE AMENDMENT, WILL NOT AUTHORIZE THE
INFLICTION OF PUNITIVE DAMAGES AGAINST THE GOVERNMENT, AND AS SO
AMENDED, IT IS REPORTED FAVORABLY BY A UNANIMOUS VOTE. 

"'ITS PASSAGE WILL REMOVE AN UNJUST DISCRIMINATION NEVER INTENDED,
BUT WHICH WORKS A COMPLETE DENIAL OF REMEDY FOR WRONGFUL HOMICIDE.' 
H.R. REP. NO. 748, COMMITTEE ON THE JUDICIARY, 80TH CONG., 1ST SESS.;
SEN. REP. NO. 763, COMMITTEE ON THE JUDICIARY, 80TH CONG., 1ST SESS. 

     *       *         *         *         * 

"UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT AS THEY NOW
APPEAR IN TITLE 28 OF THE CODE, IT IS STILL TRUE THAT CONGRESS HAS NOT
ENACTED A NEW COMPREHENSIVE CODE OF FEDERAL TORT LIABILITY.  IT IS
STILL TRUE THAT THE ACT IN GENERAL CALLS FOR AN APPLICATION OF THE LAW
OF THE STATE WHERE THE WRONGFUL ACT OR OMISSION OCCURRED.  ALSO, THE
GENERALIZATION IS STILL IN THE LAW THAT THE UNITED STATES IS TO BE HELD
LIABLE IN TORT 'IN THE SAME MANNER AND TO THE SAME EXTENT AS A PRIVATE
INDIVIDUAL UNDER LIKE CIRCUMSTANCES.'  THE EXCEPTIONAL SITUATION
COVERED BY THE SECOND PARAGRAPH OF 28 U.S.C. SEC. 2674 (THAT IS, THE
1947 AMENDMENT) APPLIES ONLY TO TWO OF THE 48 STATES, FOR IN 46 OF THE
STATES RECOVERY UNDER THEIR RESPECTIVE DEATH ACTS RESTS UPON A
COMPENSATORY BASIS.  IN ABOUT A DOZEN OF THESE 46 STATES, THE LOCAL
DEATH ACT CONTAINS SOME MAXIMUM LIMIT ON THE AMOUNT OF RECOVERY ...  .
IN THESE STATES, AS THE PLAINTIFFS ARE BOUND TO CONCEDE, THE UNITED
STATES COULD NOT BE LIABLE FOR MORE THAN THE STATUTORY MAXIMUM
PERMITTED BY STATE LAW IN SUITS AGAINST PRIVATE EMPLOYERS.  SUCH IS THE
CLEAR MANDATE OF THE FIRST PARAGRAPH OF 28 U.S.C. SEC. 2674. 

     *         *         *         *         * 

"AS SUGGESTED ABOVE, THE 1947 AMENDMENT TO THE TORT CLAIMS ACT DID
MAKE A PARTIAL BREAK IN THE ORIGINAL PATTERN OF THE ACT IN THAT,
WHEREVER THE AMENDMENT WAS APPLICABLE, IT BECAME POSSIBLE (1) THAT THE
UNITED STATES MIGHT BE HELD LIABLE FOR A GREATER SUM OF DAMAGES,
ASSESSED ON A COMPENSATORY BASIS, THAN MIGHT BE ASSESSED UNDER THE
LOCAL DEATH ACT AGAINST A PRIVATE EMPLOYER IN CASES IN WHICH THE
WRONGDOER WAS DEEMED TO HAVE BEEN GUILTY OF THE MINIMUM DEGREE OF
CULPABILITY, AND (2) THE UNITED STATES MIGHT BE LIABLE FOR NO
SUBSTANTIAL DAMAGES AT ALL, WHERE THE PLAINTIFF FAILED TO PROVE ANY
PECUNIARY INJURY TO THE NEXT OF KIN ...  THOUGH UNDER THE LOCAL DEATH
ACT A PRIVATE EMPLOYER MIGHT BE SUBJECT TO LARGE DAMAGES ASSESSED ON A
PUNITIVE BASIS.  THUS IN EITHER OF THESE SITUATIONS THE UNITED STATES
WOULD NOT BE LIABLE 'TO THE SAME EXTENT' AS A PRIVATE EMPLOYER UNDER
LIKE CIRCUMSTANCES, WHICH IS THE GENERALLY APPLICABLE STANDARD IN THE
FIRST PARAGRAPH OF 28 U.S.C. SEC. 2674. 

"BUT WE THINK IT IS UNNECESSARY TO CONSTRUE THE 1947 CONGRESSIONAL
AMENDMENT, WHICH WAS INTENDED TO REMOVE WHAT WAS DEEMED TO BE A
DISCRIMINATION IN A VERY NARROW SITUATION, SO AS TO EFFECTUATE A FAR
GREATER DISCRIMINATION AND INCONGRUITY.  IF THE CONTENTION OF THE
PLAINTIFFS WERE ACCEPTED, THEN IN MASSACHUSETTS ALONE, OF ALL THE
STATES WHOSE RESPECTIVE DEATH ACTS CONTAIN A MAXIMUM LIMIT OF RECOVERY,
THE UNITED STATES MAY BE HELD LIABLE IN AN AMOUNT IN EXCESS OF THE
MAXIMUM LIMIT OF RECOVERY PERMITTED AGAINST A PRIVATE EMPLOYER.    "THE
PLAINTIFFS WOULD HAVE US READ LITERALLY, AND IN ISOLATION, THE LANGUAGE
OF THE SECOND PARAGRAPH OF 28 U.S.C. SEC. 2674 THAT, IN LIEU OF
PUNITIVE DAMAGES, 'THE UNITED STATES SHALL BE LIABLE FOR ACTUAL OR
COMPENSATORY DAMAGES, MEASURED BY THE PECUNIARY INJURIES RESULTING FROM
SUCH DEATH TO THE PERSONS RESPECTIVELY, FOR WHOSE BENEFIT THE ACTION
WAS BROUGHT.'  IT IS ARGUED THAT SINCE THE DAMAGES, SO COMPUTED, HAVE
BEEN FOUND TO BE $60,000, AND SINCE THE CONGRESS HAS IMPOSED NO MAXIMUM
LIMIT OF RECOVERY, THEN NECESSARILY, BY THE VERY COMMAND OF THE
CONGRESS, THE JUDGMENT AGAINST THE UNITED STATES HERE MUST BE IN THE
SUM OF $60,000. 

"THE TROUBLE WITH THE FOREGOING ARGUMENT IS THAT THE FEDERAL TORT
CLAIMS ACT, AS AMENDED, MUST BE READ AS AN ORGANIC WHOLE.  IN 1947,
WHEN THE CONGRESS ENACTED THE AMENDMENT, IT DEMONSTRATED NO OBJECTION
TO THAT PORTION OF THE MASSACHUSETTS DEATH ACT WHICH CONTAINED A
MAXIMUM LIMIT OF RECOVERY.  THAT WAS PURELY A MATTER OF LOCAL
LEGISLATIVE POLICY, AND IF A PRIVATE EMPLOYER COULD NOT BE HELD FOR
MORE THAN $20,000, THEN THE CONGRESS, IN WAIVING THE GOVERNMENTAL
IMMUNITY OF THE UNITED STATES, HAD NO REASON TO IMPOSE A LIABILITY UPON
THE UNITED STATES IN EXCESS OF THE MAXIMUM LIMIT APPLICABLE TO A
PRIVATE EMPLOYER.  WHAT THE CONGRESS DID NOT WANT WAS TO HAVE DAMAGES
ASSESSED AGAINST THE UNITED STATES ON A PUNITIVE BASIS.  WE GIVE FULL
EFFECT TO THE LANGUAGE OF THE CONGRESSIONAL AMENDMENT IF WE ASSESS
DAMAGES AGAINST THE UNITED STATES ON A COMPENSATORY BASIS MEASURED BY
THE PECUNIARY INJURIES RESULTING TO THE NEXT OF KIN.  HAVING DONE THAT,
AND IF THE AMOUNT SO COMPUTED IS IN EXCESS OF $20,000, IT IS IN NO WAY
INCONSISTENT TO CUT DOWN THE LARGER SUM TO $20,000, THE MAXIMUM AMOUNT
RECOVERABLE UNDER THE TERMS OF THE MASSACHUSETTS DEATH ACT.  ALL OF THE
$20,000 TO BE RECOVERED IN SUCH A CASE WOULD BE COMPENSATORY DAMAGES -
NOT ONE CENT OF IT WOULD BE PUNITIVE DAMAGES - AND THUS THERE WOULD BE
ACHIEVED THE CONGRESSIONAL OBJECTIVE OF PREVENTING THE INFLICTION OF
PUNITIVE DAMAGES AGAINST THE UNITED STATES.  IN OTHER WORDS, EXCEPT
WHERE CONGRESS HAS CLEARLY PROVIDED OTHERWISE, IT IS THE GENERAL SCHEME
OF THE TORT CLAIMS ACT TO REFER QUESTIONS OF LIABILITY OF THE UNITED
STATES TO THE PROVISIONS OF 'THE LAW OF THE PLACE WHERE THE ACT OR
OMISSION COMPLAINED OF OCCURRED.'  THUS WE MUST LOOK TO THE LOCAL LAW
TO SEE WHO IS ENTITLED TO SUE, AND FOR WHOSE BENEFIT; WE MUST LOOK TO
THE LOCAL LAW ON WHETHER CONTRIBUTORY NEGLIGENCE OF THE DECEDENT, OR A
RELEASE BY HIM DURING HIS LIFETIME, BARS THE ACTION FOR WRONGFUL DEATH;
AND WE MUST ALSO APPLY THE PROVISION OF THE LOCAL LAW AS TO THE MAXIMUM
AMOUNT OF RECOVERY, FOR IN NONE OF THESE PARTICULARS IS THERE ANY
INCONSISTENT PROVISION IN THE FEDERAL ACT."  227 F.2D 385, 388-391. 
..END :















LEEDOM, MEMBERS OF THE NATIONAL LABOR RELATIONS BOARD V. INTERNATIONAL
UNION OF MINE, MILL & SMELTER WORKERS 352 U.S. 145 


NO. 57.  ARGUED NOVEMBER 14, 1956 - DECIDED DECEMBER 10, 1956 - 96 U.S.
APP. D.C. 416, 226 F.2D 780, AFFIRMED. 


BOARD SHALL MAKE NO INVESTIGATION NOR ISSUE ANY COMPLAINT ON BEHALF OF
A UNION UNLESS THERE IS ON FILE WITH THE BOARD A NON-COMMUNIST
AFFIDAVIT OF EACH OFFICER OF THE UNION AND OF ANY NATIONAL OR
INTERNATIONAL LABOR ORGANIZATION OF WHICH IT IS AN AFFILIATE; AND THAT
"THE PROVISIONS OF SECTION 35A OF THE CRIMINAL CODE SHALL BE APPLICABLE
IN RESPECT TO SUCH AFFIDAVITS."  HELD: THE CRIMINAL SANCTION IS THE
EXCLUSIVE REMEDY FOR THE FILING OF A FALSE AFFIDAVIT UNDER THIS
FINDING THAT A FALSE AFFIDAVIT HAS BEEN FILED, ENTER AN ORDER
WITHHOLDING FROM THE UNION THE BENEFITS OF THE ACT UNTIL IT IS
SATISFIED THAT THE UNION HAS COMPLIED.  PP. 146-151. 

(A)  LABOR BOARD V. HIGHLAND PARK CO., 341 U.S. 322, AND LABOR BOARD
V. COCA-COLA BOTTLING CO., 350 U.S. 264, DISTINGUISHED.  P. 149. 

(B)  THE LANGUAGE OF SEC. 9(H) AND ITS LEGISLATIVE HISTORY PRECLUDE
AN ADDITIONAL SANCTION WHICH IN PRACTICAL EFFECT WOULD RUN AGAINST THE
MEMBERS OF THE UNION, NOT THEIR GUILTY OFFICERS.  PP. 149-151. 

LEEDOM ET AL., MEMBERS OF THE NATIONAL LABOR RELATIONS BOARD, V.
INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

STAT. 136, 146, 65 STAT.  601, 602, 29 U.S.C. SEC. 159(H), PROVIDES
THAT THE BOARD SHALL MAKE NO INVESTIGATION NOR ISSUE ANY COMPLAINT ON
BEHALF OF A UNION UNLESS THERE IS ON FILE WITH THE BOARD A NON
COMMUNIST OATH OF EACH OFFICER OF THE UNION AND OF EACH OFFICER OF ANY
NATIONAL OR INTERNATIONAL LABOR ORGANIZATION OF WHICH IT IS AN
AFFILIATE OR CONSTITUENT UNIT.  (FN1)  SECTION 9(H) FURTHER PROVIDES
THAT "THE PROVISIONS OF SECTION 35A OF THE CRIMINAL CODE SHALL BE
APPLICABLE IN RESPECT TO SUCH AFFIDAVITS."  SECTION 35A OF THE CRIMINAL
CODE APPLIES A CRIMINAL SANCTION (FN2) TO FALSE AFFIDAVITS FILED UNDER
SEC. 9(H).  THE QUESTION IN THIS CASE IS WHETHER CRIMINAL PROSECUTION
UNDER THAT PROVISION IS THE EXCLUSIVE REMEDY FOR THE FILING OF A FALSE
AFFIDAVIT UNDER SEC. 9(H) OR WHETHER THE BOARD MAY TAKE ADMINISTRATIVE
ACTION AND, ON A FINDING THAT A FALSE AFFIDAVIT HAS BEEN FILED, ENTER
AN ORDER OF DECOMPLIANCE, WITHHOLDING FROM THE UNION IN QUESTION THE
BENEFITS OF THE ACT UNTIL IT IS SATISFIED THAT THE UNION HAS COMPLIED. 
THE COURT BELOW HELD THAT THE CRIMINAL SANCTION WAS THE EXCLUSIVE
REMEDY FOR FILING THE FALSE AFFIDAVIT.  96 U.S. APP. D.C. 416, 226 F.2D
780.  THAT DECISION IS IN CONFLICT WITH A RULING OF THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT.  LABOR BOARD V. LANNOM MFG. CO., 226
F.2D 194.  WE GRANTED THE PETITIONS FOR CERTIORARI IN EACH CASE IN
ORDER TO RESOLVE THE CONFLICT.  351 U.S. 949; 351 U.S. 905. 

THE UNION INVOLVED IN THE PRESENT CASE IS THE INTERNATIONAL UNION OF
MINE, MILL, AND SMELTER WORKERS.  THE UNION FILED A COMPLAINT WITH THE
BOARD CHARGING THAT THE PRECISION SCIENTIFIC CO. REFUSED TO BARGAIN
WITH IT IN VIOLATION OF THE ACT.  DURING THE COURSE OF THE HEARING
BEFORE THE BOARD, THE COMPANY CHALLENGED THE VERACITY OF AFFIDAVITS
FILED BY ONE TRAVIS, AN OFFICER OF THE UNION, UNDER SEC. 9(H).  THE
BOARD, IN ACCORD WITH ITS PRACTICE, (FN3) REFUSED TO ALLOW THAT ISSUE
TO BE LITIGATED IN THE UNFAIR LABOR PRACTICE PROCEEDING.  BUT LATER ON,
IT ISSUED AN ORDER DIRECTING AN ADMINISTRATIVE INVESTIGATION AND
HEARING.  A HEARING WAS HELD BEFORE AN EXAMINER WHO FOUND, AMONG OTHER
THINGS, THAT THE SEC. 9(H) AFFIDAVIT FILED BY TRAVIS IN AUGUST 1949 WAS
FALSE AND THAT THE UNION MEMBERSHIP KNEW IT WAS FALSE AND YET CONTINUED
TO RE-ELECT HIM AS AN OFFICER.  THE BOARD AGREED WITH THE TRIAL
EXAMINER, HELD THAT THE UNION WAS NOT AND HAD NOT BEEN IN COMPLIANCE
WITH SEC. 9(H) OF THE ACT, AND ORDERED THAT THE UNION BE ACCORDED NO
FURTHER BENEFITS UNDER THE ACT UNTIL IT HAD COMPLIED.  MAURICE E.
TRAVIS, 111 N.L.R.B. 422.  THE BOARD, THEREAFTER, DISMISSED THE UNION'S
COMPLAINT AGAINST PRECISION SCIENTIFIC CO., AN ACTION LATER VACATED
PURSUANT TO A STAY ISSUED BY THE COURT BELOW. 

THE INSTANT SUIT WAS BROUGHT IN THE DISTRICT COURT BY THE UNION,
WHICH PRAYED THAT THE BOARD'S ORDER OF DECOMPLIANCE BE ENJOINED. 
PRECISION SCIENTIFIC CO. INTERVENED.  THE DISTRICT COURT DENIED A
PRELIMINARY INJUNCTION.  THE COURT OF APPEALS REVERSED, 96 U.S. APP.
D.C. 416, 226 F.2D 780, ON THE AUTHORITY OF ITS PRIOR DECISION IN
FARMER V. INTERNATIONAL FUR & LEATHER WORKERS UNION, 95 U.S. APP. D.C.
308, 221 F.2D 862.  IT HELD THAT A FALSE AFFIDAVIT FILED UNDER SEC.
9(H) OF THE ACT GAVE RISE ONLY TO A CRIMINAL PENALTY AGAINST THE GUILTY
UNION OFFICER AND DID NOT IN ANY WAY ALTER THE UNION'S RIGHT TO THE
BENEFITS OF THE ACT, EVEN WHERE ITS MEMBERS WERE AWARE OF THE OFFICER'S
FRAUD. 

WE AGREE WITH THE COURT BELOW THAT THE BOARD HAS NO AUTHORITY TO
DEPRIVE UNIONS OF THEIR COMPLIANCE STATUS UNDER SEC. 9(H) AND THAT THE
ONLY REMEDY FOR THE FILING OF A FALSE AFFIDAVIT IS THE CRIMINAL PENALTY
PROVIDED IN SEC. 35A OF THE CRIMINAL CODE.  WE START WITH A STATUTORY
PROVISION THAT CONTAINS ONLY ONE EXPRESS SANCTION, VIZ., PROSECUTION
FOR MAKING A FALSE STATEMENT.  NO OTHER SECTIONS OF THE ACT EXPRESSLY
SUPPLEMENT THAT ONE SANCTION. 

THE AIM OF SEC. 9(H) IS CLEAR.  IT IMPOSES A CRIMINAL PENALTY FOR
FILING A FALSE AFFIDAVIT SO AS TO DETER COMMUNIST OFFICERS FROM FILING
AT ALL.  THE FAILURE TO FILE STANDS AS A BARRIER TO THE MAKING OF AN
INVESTIGATION BY THE BOARD AND THE ISSUANCE OF ANY COMPLAINT FOR THE
BENEFIT OF THE UNION IN QUESTION.  THE SECTION, THEREFORE, PROVIDES AN
INCENTIVE TO THE MEMBERS OF THE UNION TO RID THEMSELVES OF COMMUNIST
LEADERSHIP AND ELECT OFFICERS WHO CAN FILE AFFIDAVITS IN ORDER TO
RECEIVE THE BENEFITS OF THE ACT.  THE FILING OF THE REQUIRED AFFIDAVITS
BY THE NECESSARY OFFICERS IS THE KEY THAT MAKES AVAILABLE TO THE UNION
THE BENEFITS OF THE ACT. 

THE BOARD IS UNDER A DUTY TO DETERMINE WHETHER A FILING HAS BEEN MADE
BY EACH PERSON SPECIFIED IN SEC. 9(H), SINCE ITS POWER TO ACT ON UNION
CHARGES IS CONDITIONED ON FILING OF THE NECESSARY AFFIDAVITS.  THAT WAS
THE EXTENT OF OUR RULINGS IN LABOR BOARD V. HIGHLAND PARK CO., 341 U.S.
322; LABOR BOARD V. COCA-COLA BOTTLING CO., 350 U.S. 264.  THE ARGUMENT
MADE BY THE BOARD WOULD HAVE US GO FURTHER AND READ INTO THE ACT AN
IMPLIED POWER TO DETERMINE NOT ONLY WHETHER THE AFFIDAVIT HAS BEEN
FILED BUT ALSO WHETHER THE AFFIDAVIT FILED IS TRUE OR FALSE.  AND FOR
THAT POSITION RELIANCE IS PLACED ON GENERAL STATEMENTS IN CASES LIKE
LABOR BOARD V. INDIANA & MICHIGAN ELECTRIC CO., 318 U.S. 9, 18-19, THAT
THE BOARD HAS IMPLIED POWER TO PROTECT ITS PROCESS FROM ABUSE. 

WE ARE DEALING HERE WITH A SPECIAL PROVISION THAT HAS A PRECISE
HISTORY.  BOTH THE SENATE AND THE HOUSE ORIGINALLY PASSED BILLS WHICH,
THOUGH THE LANGUAGE DIFFERED ONE FROM THE OTHER, MADE THE TEST OF
COMPLIANCE THE FACT OF NONMEMBERSHIP OF UNION OFFICERS IN THE COMMUNIST
PARTY.  SEE 1 LEG.  HIST., LABOR MANAGEMENT RELATIONS ACT, 1947 (NAT.
LABOR REL. BD., 1948), PP. 190, 251.  IF THOSE PROVISIONS HAD BECOME
THE LAW, THE BOARD WOULD HAVE BEEN REQUIRED TO CONDUCT AN INQUIRY INTO
WHETHER THE OFFICERS WERE IN FACT NON-COMMUNIST, AT LEAST WHERE THE
VERACITY OF THE AFFIANT WAS CHALLENGED.  (FN4)  BUT A FUNDAMENTAL
CHANGE IN SEC. 9(H) WAS MADE BY THE CONFERENCE COMMITTEE.  AS STATED IN
THE CONFERENCE REPORT RESPECTING THE PROVISIONS IN THE TWO BILLS: 

"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
AND 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 AND OFFICERS OF ITS NATIONAL OR INTERNATIONAL BODY, TO THE
EFFECT THAT THEY ARE NOT MEMBERS OR AFFILIATES OF THE COMMUNIST PARTY
OR ANY OTHER PROSCRIBED ORGANIZATION.  THE PENAL PROVISIONS OF SECTION
35(A) OF THE CRIMINAL CODE (U.S.C., TITLE 18, SEC. 80) ARE MADE
APPLICABLE TO THE EXECUTION OF SUCH AFFIDAVITS."  2 LEG.  HIST., OP.
CIT., SUPRA, P. 1542. 

SENATOR TAFT EXPLAINED THE CHANGE TO THE SENATE: 

"THIS PROVISION MAKING THE FILING OF AFFIDAVITS WITH RESPECT TO
COMMUNIST PARTY AFFILIATION BY ITS OFFICERS A CONDITION PRECEDENT TO
USE OF THE PROCESSES OF THE BOARD HAS BEEN CRITICIZED AS CREATING
ENDLESS DELAYS.  IT WAS TO PREVENT SUCH DELAYS THAT THIS PROVISION WAS
AMENDED BY THE CONFEREES.  UNDER BOTH THE SENATE AND HOUSE BILLS THE
BOARD'S CERTIFICATION PROCEEDINGS COULD HAVE BEEN INFINITELY DELAYED
WHILE IT INVESTIGATED AND DETERMINED COMMUNIST PARTY AFFILIATION. 
UNDER THE AMENDMENT AN AFFIDAVIT IS SUFFICIENT FOR THE BOARD'S PURPOSE
AND THERE IS NO DELAY UNLESS AN OFFICER OF THE MOVING UNION REFUSES TO
FILE THE AFFIDAVIT REQUIRED."  ID., AT 1625; 93 CONG. REC. 6860. 

THIS EXPLICIT STATEMENT BY THE ONE MOST RESPONSIBLE FOR THE 1947
AMENDMENTS SEEMS TO US TO PUT AT REST THE QUESTION RAISED BY THIS
CASE.  IF, IN SPITE OF THE CHANGE IN WORDING OF SEC. 9(H) MADE BY THE
CONFERENCE COMMITTEE, THE BOARD COULD STILL INVESTIGATE THE TRUTH OR
FALSITY OF THE AFFIDAVITS FILED, THE UNFAIR LABOR PRACTICE PROCEEDINGS
MIGHT BE "INFINITELY DELAYED," TO USE SENATOR TAFT'S WORDS.  UNDER THE
CONSTRUCTION PRESENTLY URGED BY THE BOARD, SENATOR TAFT'S ASSURANCE
THAT "AN AFFIDAVIT IS SUFFICIENT FOR THE BOARD'S PURPOSE" WOULD BE
DISREGARDED. 

MUCH ARGUMENT IS ADVANCED THAT THE CONTRARY POSITION IS FAVORED BY
POLICY CONSIDERATIONS.  FOR EXAMPLE, IT IS SAID THAT IF THE BOARD CAN
LOOK INTO THE TRUTH OR FALSITY OF ALL SEC. 9(H) AFFIDAVITS AND ENTER
ORDERS OF DECOMPLIANCE IN CASE THEY ARE FOUND TO BE FALSE, UNION
MEMBERS WILL HAVE GREATER INCENTIVE TO RID THEMSELVES OF COMMUNIST
LEADERS.  BUT THE RULE WRITTEN INTO SEC. 9(H) IS FOR THE PROTECTION OF
UNIONS AS WELL AS FOR THE DETECTION OF COMMUNISTS.  IT IS NOT FAIR TO
READ IT ONLY AGAINST THE BACKGROUND OF A CASE WHERE THE MEMBERS KNEW
THEIR OFFICER WAS A COMMUNIST.  WE ARE DEALING WITH A REQUIREMENT
EQUALLY APPLICABLE TO ALL UNIONS, WHETHER THE MEMBERS ARE INNOCENT OF
SUCH KNOWLEDGE OR GUILTY.  AS JUDGE BAZELON STATED IN FARMER V. UNITED
ELECTRICAL WORKERS, 93 U.S. APP. D.C. 178, 181, 211 F.2D 36, 39, THERE
IS NO INDICATION THAT CONGRESS MEANT TO IMPOSE ON A UNION THE DRASTIC
PENALTY OF DECOMPLIANCE "BECAUSE ITS OFFICER HAD DECEIVED THE UNION AS
WELL AS THE BOARD BY FILING A FALSE AFFIDAVIT."  THE PENALTY STATED IN
SEC. 9(H) IS ONE AGAINST GUILTY OFFICERS.  IN VIEW OF THE WORDING OF
SEC. 9(H) AND ITS LEGISLATIVE HISTORY, WE CANNOT FIND AN ADDITIONAL
SANCTION WHICH IN PRACTICAL EFFECT WOULD RUN AGAINST THE MEMBERS OF THE
UNION, NOT THEIR GUILTY OFFICERS.  THAT WAS THE BOARD'S ORIGINAL
POSITION, (FN5) AND WE THINK IT IS THE CORRECT ONE.  AFFIRMED. 

FN1  "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 10, UNLESS THERE IS ON
FILE WITH THE BOARD AN AFFIDAVIT EXECUTED CONTEMPORANEOUSLY OR WITHIN
THE PRECEDING TWELVE-MONTH PERIOD BY EACH OFFICER OF SUCH LABOR
ORGANIZATION AND THE OFFICERS OF ANY NATIONAL OR INTERNATIONAL LABOR
ORGANIZATION OF WHICH IT IS AN AFFILIATE OR CONSTITUENT UNIT THAT HE IS
NOT A MEMBER OF THE COMMUNIST PARTY OR AFFILIATED WITH SUCH PARTY, AND
THAT HE DOES NOT BELIEVE IN, AND IS NOT A MEMBER OF OR SUPPORTS ANY
ORGANIZATION THAT BELIEVES IN OR TEACHES, THE OVERTHROW OF THE UNITED
STATES GOVERNMENT BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL
METHODS.  THE PROVISIONS OF SECTION 35A OF THE CRIMINAL CODE SHALL BE
APPLICABLE IN RESPECT TO SUCH AFFIDAVITS." 

FN2  SECTION 35A PROVIDES A PENALTY OF $10,000, OR A PRISON TERM OR
BOTH, FOR MAKING, AMONG OTHER THINGS, FRAUDULENT STATEMENTS "IN ANY
MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE
UNITED STATES."  52 STAT. 197, 18 U.S.C. SEC. 1001. 

FN3  SEE IN THE MATTER OF LION OIL CO., 76 N.L.R.B. 565, 566; COCA
COLA BOTTLING CO., 108 N.L.R.B. 490, 491. 

FN4  SEE THE COLLOQUY BETWEEN SENATORS FERGUSON AND MCCLELLAN IN 2
LEG.  HIST., LABOR MANAGEMENT RELATIONS ACT, 1947 (NAT. LABOR REL. BD.,
1948), PP. 1434-1435. 

FN5  IN THE MATTER OF CRADDOCK-TERRY SHOE CORP., 76 N.L.R.B. 842,
843, A PROCEEDING INVOLVING AN UNFAIR LABOR PRACTICE, THE BOARD REFUSED
TO ENTERTAIN EVIDENCE THAT THE AFFIDAVITS FILED UNDER SEC. 9(H) WERE
FALSE, THE BOARD SAYING:  "IN THE INSTANT CASE THERE IS ON FILE AN
AFFIDAVIT IDENTIFYING THE OFFICERS OF THE UNION, AND NON-COMMUNIST
AFFIDAVITS SIGNED BY EACH OFFICER SO IDENTIFIED.  IT IS NOT THE PURPOSE
OF THE STATUTE TO REQUIRE THE BOARD TO INVESTIGATE THE AUTHENTICITY OR
TRUTH OF THE AFFIDAVITS WHICH HAVE BEEN FILED.  PERSONS DESIRING TO
ESTABLISH FALSIFICATION OR FRAUD HAVE RECOURSE TO THE DEPARTMENT OF
JUSTICE FOR A PROSECUTION UNDER SECTION 35(A) OF THE CRIMINAL CODE. 
THE EVIDENCE SOUGHT TO BE ADDUCED UNDER THIS ALLEGATION IS ACCORDINGLY
IMMATERIAL."  AND SEE IN THE MATTER OF ALPERT AND ALPERT, 92 N.L.R.B.
806, 807. 

ON MARCH 18, 1952, PAUL M. HERZOG, THEN CHAIRMAN OF THE BOARD,
TESTIFIED ON SEC. 9(H) PROBLEMS IN SENATE HEARINGS.  HE REPORTED THAT
IN THE FOUR YEARS ENDING JUNE 30, 1951, THERE HAD BEEN FILED WITH THE
BOARD 232,000 NON-COMMUNIST AFFIDAVITS.  HE REVIEWED THE HISTORY OF
SEC. 9(H) AND REMARKED HOW "INTOLERABLE AND DELAYING" THE
ADMINISTRATIVE PROCESS WOULD HAVE BEEN IF THE PROPOSALS ORIGINALLY
CONTAINED IN SEC. 9(H), AND WHICH WE HAVE DISCUSSED, HAD BEEN ENACTED
INTO LAW: 

"  ...  HAD THIS PROVISION BEEN ENACTED INTO LAW, THE BOARD WOULD
HAVE BEEN INUNDATED WITH LEGISLATION ON AN ISSUE CONCERNING WHICH PROOF
IS SINGULARLY DIFFICULT TO OBTAIN, TO THE DETRIMENT OF SPEEDY DISPOSAL
OF CASES WHICH CRY OUT FOR EARLY EMPLOYEE RECOURSE TO THE BALLOT BOX. 
"INSTEAD, CONGRESS IMPOSED AN OBLIGATION ON LABOR UNION 'OFFICERS' -
WITHOUT DEFINING THEM IN THE STATUTE - TO TAKE THE AFFIRMATIVE STEP OF
FORSWEARING COMMUNIST AFFILIATION.  THE THEORY EVIDENTLY WAS THAT IF
THESE OFFICERS' REFUSAL TO SIGN AFFIDAVITS DEPRIVED THEIR CONSTITUENTS
OF ALL THE BOARD'S FACILITIES, THE SPOTLIGHTING OF THAT REFUSAL WOULD
SOON GENERATE PRESSURE FROM BELOW TO REMOVE THEM FROM OFFICE.  IT WAS
APPARENT FROM THE OUTSET THAT THE NLRB'S SOLE FUNCTION WAS TO MAKE
CERTAIN THAT THE NECESSARY PERSONS FILED THESE AFFIDAVITS, AND THAT,
ONCE THEY HAD DONE SO PURSUANT TO THE RULES WE ADOPTED, WE WERE TO
PROCESS THEIR CASES WITHOUT INQUIRING INTO THE TRUTH OR FALSITY OF THE
AFFIDAVITS THEMSELVES.  WHERE SUCH AN ISSUE AROSE, THE BOARD'S
STATUTORY DUTY WAS ONLY TO REFER THE AFFIDAVIT TO THE DEPARTMENT OF
JUSTICE FOR INVESTIGATION AND POSSIBLE PROSECUTION FOR PERJURY UNDER
THE CRIMINAL CODE.  WE HAVE MADE 55 SUCH REFERRALS SINCE 1947." 

HEARINGS, SENATE SUBCOMMITTEE OF COMMITTEE ON LABOR AND PUBLIC
WELFARE, COMMUNIST DOMINATION OF UNIONS AND NATIONAL SECURITY, 82D
CONG., 2D SESS., P. 91. 

ON NOVEMBER 10, 1953, THE BOARD ISSUED A STATEMENT OF POLICY WHICH
OVERTURNED ITS PREVIOUS POSITION.  THE BOARD THEN CONCLUDED THAT A
CONVICTION FOR FILING A FALSE AFFIDAVIT "WOULD NECESSARILY INVALIDATE
ANY CERTIFICATIONS OR OTHER OFFICIAL ACTION TAKEN BY THE BOARD IN
RELIANCE ON THE TRUTH OF SUCH AFFIDAVITS."  THE EXTENT OF THIS CHANGE
IN POLICY WAS UNDERSCORED BY THE BOARD'S FURTHER DECISION TO HOLD IN
ABEYANCE REPRESENTATION ELECTIONS WHICH CONCERNED A UNION WHOSE
OFFICERS WERE UNDER INDICTMENT FOR FILING FALSE AFFIDAVITS.  18 FED.
REG. 7185. 
..END :




















AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, V.
NATIONAL LABOR RELATIONS BOARD 352 U.S. 153 


NO. 40.  ARGUED NOVEMBER 14, 1956 - DECIDED DECEMBER 10, 1956 - 226 F.2D
194, REVERSED. 


THE CRIMINAL PENALTY IMPOSED BY SEC. 35A OF THE CRIMINAL CODE, 18
U.S.C. SEC. 1001, IS THE EXCLUSIVE REMEDY FOR THE FILING OF A FALSE NON
COMMUNIST AFFIDAVIT UNDER SEC. 9(H) OF THE NATIONAL LABOR RELATIONS
ACT.  LEEDOM V. INTERNATIONAL UNION, ANTE, P. 145.  PP. 153-156. 

AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, V.
NATIONAL LABOR RELATIONS BOARD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO LEEDOM V. INTERNATIONAL UNION, ANTE, P.
145, DECIDED THIS DAY.  INTERNATIONAL FUR AND LEATHER WORKERS UNION
(FN1) FILED A CHARGE WITH THE NATIONAL LABOR RELATIONS BOARD ALLEGING
THAT RESPONDENT LANNOM MFG. CO. HAD INTERFERED WITH THE RIGHTS OF ITS
EMPLOYEES GUARANTEED BY THE ACT.  THIS CHARGE WAS FILED IN APRIL 1951. 
A COMPLAINT WAS ISSUED BASED ON THE CHARGES IN FEBRUARY 1952.  AT THE
HEARING, LANNOM SOUGHT TO PROVE THAT CERTAIN SEC. 9(H) AFFIDAVITS FILED
BY OFFICERS OF THE UNION WERE FALSE.  THE TRIAL EXAMINER RULED, IN
ACCORDANCE WITH THE BOARD'S PRACTICE, THAT THAT ISSUE COULD NOT BE
LITIGATED IN THE PROCEEDING.  THE TRIAL EXAMINER RECOMMENDED THAT AN
APPROPRIATE REMEDIAL ORDER ISSUE TO CORRECT THE UNFAIR LABOR PRACTICE
WHICH HE FOUND TO EXIST.  THE BOARD IN GENERAL SUSTAINED THE TRIAL
EXAMINER AND ISSUED A REMEDIAL ORDER AGAINST LANNOM, 103 N.L.R.B. 847. 
PRIOR TO THIS ORDER, THE BOARD HAD BEEN ENJOINED FROM TAKING
ADMINISTRATIVE ACTION REQUIRING THE UNION'S OFFICERS TO REAFFIRM THEIR
SEC. 9(H) AFFIDAVITS.  FARMER V. UNITED ELECTRICAL WORKERS, 93 U.S.
APP. D.C. 178, 211 F.2D 36.  ACCORDINGLY THE BOARD RULED, "WE ARE
ADMINISTRATIVELY SATISFIED THAT THE UNION WAS IN COMPLIANCE WITH
2. 

IN AUGUST 1953 AN INDICTMENT WAS RETURNED AGAINST BEN GOLD, AN
OFFICER OF THE UNION, CHARGING THAT THE SEC. 9(H) AFFIDAVIT WHICH HE
FILED WITH THE BOARD ON AUGUST 30, 1950, WAS FALSE.  IN 1954 GOLD WAS
CONVICTED FOR THAT OFFENSE.  (FN2)  THEREAFTER, THE BOARD ORDERED THE
UNION TO SHOW CAUSE WHEY ITS COMPLIANCE STATUS UNDER THE ACT SHOULD NOT
BE ALTERED, UNLESS GOLD WERE REMOVED FROM OFFICE.  THE UNION RE-ELECTED
GOLD AS ITS PRESIDENT.  SHORTLY THEREAFTER THE BOARD DECLARED THE UNION
OUT OF COMPLIANCE WITH SEC. 9(H).  108 N.L.R.B. 1190, 1191.  THE UNION
THEN OBTAINED FROM THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA A
PRELIMINARY INJUNCTION ENJOINING THE BOARD FROM ALTERING OR RESTRICTING
THE UNION'S COMPLIANCE STATUS BY REASON OF GOLD'S CONVICTION.  THE
COURT OF APPEALS AFFIRMED.  FARMER V. INTERNATIONAL FUR & LEATHER
WORKERS UNION, 95 U.S. APP. D.C. 308, 221 F.2D 862. 

THE BOARD SOUGHT A STAY OF THE PRELIMINARY INJUNCTION PENDING
DECISION BY THE COURT OF APPEALS IN THE FARMER CASE.  WHEN THE STAY WAS
DENIED, THE BOARD PETITIONED THE COURT BELOW, PURSUANT TO SEC. 10(E) OF
THE ACT, FOR ENFORCEMENT OF THE UNFAIR LABOR PRACTICE ORDER. 
RESPONDENT LANNOM MFG. CO. MOVED FOR DISMISSAL OF THE ENFORCEMENT
PETITION ON THE GROUNDS OF GOLD'S CONVICTION FOR FALSE FILING UNDER
SEC. 9(H).  THE UNION INTERVENED AND OPPOSED THE MOTION TO DISMISS. 

THE COURT BELOW GRANTED THE MOTION TO DISMISS, HOLDING THAT, SINCE
THE FALSITY OF THE AFFIDAVIT HAD BEEN PROVED, THE REQUIREMENTS OF SEC.
9(H) HAD NOT BEEN MET AND NO BENEFITS SHOULD BE ACCORDED THE UNION.  WE
GRANTED CERTIORARI.  351 U.S. 905. 

AS NOTED, THE COMPLAINT IN THE UNFAIR LABOR PRACTICE PROCEEDING WAS
ISSUED IN FEBRUARY 1952, MORE THAN TWELVE MONTHS AFTER THE AFFIDAVIT OF
AUGUST 30, 1950.  SECTION 9(H) PROVIDES THAT NO INVESTIGATION SHALL BE
MADE OR COMPLAINT ISSUED ON BEHALF OF A UNION UNLESS THERE IS ON FILE
WITH THE BOARD A NON-COMMUNIST AFFIDAVIT OF EACH OFFICER "EXECUTED
CONTEMPORANEOUSLY OR WITHIN THE PRECEDING TWELVE-MONTH PERIOD."  THERE
WAS NO CHARGE AGAINST GOLD FOR FILING A FALSE AFFIDAVIT IN 1951.  THE
COURT OF APPEALS MET THAT DIFFICULTY BY PRESUMING THAT A PERSON WHO WAS
A COMMUNIST IN 1950 CONTINUED AS SUCH THROUGH 1951 AND THROUGH THE
CRITICAL DATE OF FEBRUARY 1952, IN ABSENCE OF EVIDENCE SHOWING A CHANGE
IN THE FACTUAL SITUATION.  (FN3)  226 F.2D 194, 198-199. 

THE PETITIONER HAS ALSO URGED THAT GOLD'S CONVICTION FOR FILING A
FALSE AFFIDAVIT COULD FORM NO BASIS FOR HOLDING THE UNION IN
DECOMPLIANCE PRIOR TO THE AFFIRMANCE OF GOLD'S CONVICTION ON APPEAL. 
AT THE TIME OF THE DECISION BELOW, GOLD'S APPEAL WAS PENDING IN THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.  AS NOTED, (FN4) WE HAVE
GRANTED CERTIORARI TO REVIEW THE AFFIRMANCE OF HIS CONVICTION. 

FOR THE REASONS STATED IN LEEDOM V. INTERNATIONAL UNION, ANTE, P.
145, WE CONCLUDE THAT THE SOLE SANCTION FOR THE FILING OF A FALSE
AFFIDAVIT UNDER SEC. 9(H) IS THE CRIMINAL PENALTY IMPOSED ON THE
OFFICER WHO FILES A FALSE AFFIDAVIT, NOT DECOMPLIANCE OF THE UNION NOR
THE WITHHOLDING OF THE BENEFITS OF THE ACT THAT ARE GRANTED ONCE THE
SPECIFIED OFFICERS FILE THEIR SEC. 9(H) AFFIDAVITS.  HAVING SO
CONCLUDED, WE FIND IT UNNECESSARY TO REACH THE COLLATERAL PHASES OF
THIS CONTROVERSY.  REVERSED. 

FN1  IN FEBRUARY 1955 THIS UNION MERGED WITH AMALGAMATED MEAT CUTTERS
& BUTCHER WORKERS OF NORTH AMERICA, PETITIONER IN THIS CASE. 

FN2  THE JUDGMENT OF CONVICTION WAS AFFIRMED BY AN EQUALLY DIVIDED
COURT OF APPEALS, SITTING EN BANC.  GOLD V. UNITED STATES, 99 U.S. APP.
D.C. 136, 237 F.2D 764.  WE GRANTED CERTIORARI ON OCTOBER 8, 1956.  352
U.S. 819. 

FN3  IT WAS ON THIS PHASE OF THE CASE THAT JUDGE STEWART DISSENTED:
"A JURY HAS FOUND THAT IN 1950 GOLD WAS BOTH A COMMUNIST AND A LIAR, TO
PUT IT BLUNTLY.  YET TO INDULGE IN THE PRESUMPTION THAT HE WAS
THEREFORE GUILTY OF COMMITTING A CRIMINAL OFFENSE A YEAR LATER IN
FILING THE 1951 AFFIDAVIT IS FURTHER THAN I CAN GO ON THE RECORD BEFORE
US."  226 F.2D, AT 200. 

FN4  NOTE 2, SUPRA. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I AGREE THAT DECOMPLIANCE OF THE UNION IS NOT A SANCTION AUTHORIZED
BY SEC. 9(H).  BUT THIS CASE PRESENTS ANOTHER CONSIDERATION THAT CANNOT
BE OVERLOOKED IN THE DUE ADMINISTRATION OF JUSTICE AND THAT, STANDING
ALONE, WOULD LEAD ME TO REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 
AS STATED BELOW IN THE DISSENTING OPINION OF JUDGE STEWART: 

"A COURT OF COMPETENT JURISDICTION HAS FOUND THAT GOLD'S AFFIDAVIT OF
AUGUST 30, 1950, WAS FALSE.  THE CRITICAL DATE AS TO COMPLIANCE WITH
SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT AS AMENDED WAS THE DATE
OF ISSUANCE OF THE BOARD'S COMPLAINT.  N.L.R.B. V. DANT, 344 U.S. 375
...  .  IF THE COMPLAINT HAD ISSUED DURING THE TWELVE MONTH PERIOD
WHILE THIS FALSE AFFIDAVIT WAS IN EFFECT, THE QUESTION BEFORE US WOULD
BE CLEAR CUT.  THAT, HOWEVER, IS NOT THE CASE. 

"IN AUGUST OF 1951 GOLD FILED A NEW NON-COMMUNIST AFFIDAVIT, AND IT
WAS DURING THE EFFECTIVE PERIOD OF THAT AFFIDAVIT THAT THE COMPLAINT IN
THIS CASE ISSUED.  NO COURT HAS FOUND THAT AFFIDAVIT TO BE FALSE.  IT
IS TRUE THAT THE BOARD FOUND IN 1954 THAT THE UNION WAS NOT AT THAT
TIME IN COMPLIANCE WITH SEC. 9(H).  ASSUMING THE BOARD HAD POWER TO
MAKE SUCH A FINDING, AND ASSUMING FURTHER THAT IT BE CONSIDERED A
FINDING THAT THE 1951 AFFIDAVIT WAS FALSE, IT MUST, I SHOULD THINK, BE
SUPPORTED, LIKE ANY BOARD FINDING, BY SUBSTANTIAL EVIDENCE, CONSIDERING
THE RECORD AS A WHOLE.  WE HAVE NO SUCH RECORD BEFORE US.  INDEED, IT
APPEARS THAT THE QUESTION OF THE TRUTH OR FALSITY OF THE 1951 AFFIDAVIT
HAS NEVER BEEN HEARD ON THE MERITS.  (FOOTNOTE OMITTED.) 

     *         *         *         *         * 

"A JURY HAS FOUND THAT IN 1950 GOLD WAS BOTH A COMMUNIST AND A LIAR,
TO PUT IT BLUNTLY.  YET TO INDULGE IN THE PRESUMPTION THAT HE WAS
THEREFORE GUILTY OF COMMITTING A CRIMINAL OFFENSE A YEAR LATER IN
FILING THE 1951 AFFIDAVIT IS FURTHER THAN I CAN GO ON THE RECORD BEFORE
US."  226 F.2D 194, 199-200. 
..END :














UNITED STATES V. WESTERN PACIFIC RAILROAD CO. 352 U.S. 59 


NO. 18.  ARGUED OCTOBER 15, 1956 - DECIDED DECEMBER 3, 1956 - 132 CT.
CL. 115, 131 F. SUPP. 919, REVERSED AND REMANDED. 


THE THREE RESPONDENT RAILROADS SUED THE UNITED STATES IN THE COURT OF
CLAIMS UNDER THE TUCKER ACT TO RECOVER THE DIFFERENCE BETWEEN THE
TARIFF RATES ACTUALLY PAID AND THOSE ALLEGEDLY DUE ON CERTAIN ARMY
SHIPMENTS OF STEEL AERIAL BOMB CASES FILLED WITH NAPALM GEL BUT WITHOUT
THE BURSTERS AND FUSES REQUIRED TO IGNITE THEM.  THE CARRIERS CLAIMED
TO BE ENTITLED TO PAYMENT AT THE HIGH FIRST-CLASS RATES ESTABLISHED IN
ITEM 1820 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 17 FOR "INCENDIARY
BOMBS."   IN EACH CASE THE SUIT WAS BROUGHT WITHIN SIX YEARS, THOUGH
NOT WITHIN TWO YEARS, AFTER THE CAUSE OF ACTION ACCRUED.  THE COURT OF
CLAIMS ENTERED SUMMARY JUDGMENT FOR RESPONDENTS.  ON REVIEW HERE,
HELD: 

1.  IN THE CIRCUMSTANCES HERE PRESENTED, THE QUESTION OF TARIFF
CONSTRUCTION, AS WELL AS THAT OF THE REASONABLENESS OF THE TARIFF AS
APPLIED, WAS WITHIN THE EXCLUSIVE PRIMARY JURISDICTION OF THE
INTERSTATE COMMERCE COMMISSION.  PP. 62-70. 

(A)  THE DOCTRINE OF PRIMARY JURISDICTION, LIKE THE RULE REQUIRING
EXHAUSTION OF ADMINISTRATIVE REMEDIES, IS CONCERNED WITH PROMOTING
PROPER RELATIONSHIPS BETWEEN THE COURTS AND ADMINISTRATIVE AGENCIES
CHARGED WITH PARTICULAR REGULATORY DUTIES.  PP. 63-65. 

(B)  A DETERMINATION OF THE MEANING OF THE TERM "INCENDIARY BOMB" IN
ITEM 1820 INVOLVES FACTORS "THE ADEQUATE APPRECIATION OF WHICH"
PRESUPPOSES AN "ACQUAINTANCE WITH MANY INTRICATE FACTS OF
TRANSPORTATION."  PP. 65-68. 

(C)  WHERE, AS HERE, THE PROBLEM OF COST-ALLOCATION IS RELEVANT, AND
WHERE THEREFORE THE QUESTIONS OF THE CONSTRUCTION OF A TARIFF AND OF
THE REASONABLENESS OF THE TARIFF ARE SO INTERTWINED THAT THE SAME
FACTORS ARE DETERMINATIVE ON BOTH ISSUES, THEN IT IS THE COMMISSION
WHICH MUST FIRST PASS UPON THEM.  PP. 68-69. 

2.  THE ISSUES AS TO THE CONSTRUCTION AND REASONABLENESS OF THE
TARIFF HAVING BEEN RAISED BY WAY OF DEFENSE, REFERRAL OF THOSE
QUESTIONS TO THE COMMISSION IS NOT BARRED BY THE TWO-YEAR LIMITATION
PRESCRIBED BY SEC. 16(3) OF THE INTERSTATE COMMERCE ACT.  PP. 70-74. 

3.  THE COURT OF CLAIMS ERRED IN DISPOSING BY SUMMARY JUDGMENT OF THE
GOVERNMENT'S DEFENSE THAT TWO OF THE RESPONDENTS WERE ESTOPPED FROM
CHARGING THE "1820" RATE.  PP. 74-76. 

UNITED STATES V. WESTERN PACIFIC RAILROAD CO. ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE THREE RESPONDENT RAILROADS EACH SUED IN THE COURT OF CLAIMS TO
RECOVER FROM THE UNITED STATES AS SHIPPER THE DIFFERENCE BETWEEN THE
TARIFF RATES ACTUALLY PAID AND THOSE ALLEGEDLY DUE ON 211 ARMY
SHIPMENTS OF STEEL AERIAL BOMB CASES FILLED WITH NAPALM GEL.  (FN1)
APPROXIMATELY 200 OF THE SHIPMENTS WERE MADE OVER THE LINES OF
RESPONDENTS BANGOR AND SEABOARD IN 1944; THE REMAINDER WERE CARRIED BY
RESPONDENT WESTERN PACIFIC IN 1948 AND 1950. 

NAPALM GEL IS GASOLINE WHICH HAS BEEN THICKENED BY THE ADDITION OF
ALUMINUM SOAP POWDER.  THE MIXTURE IS INFLAMMABLE BUT NOT SELF
IGNITING.  IN A COMPLETED INCENDIARY BOMB THE NAPALM GEL IS IGNITED BY
WHITE PHOSPHORUS CONTAINED IN A BURSTER CHARGE, WHICH IN TURN IS FIRED
BY A FUSE.  THESE SHIPMENTS, HOWEVER, INVOLVED ONLY THE STEEL CASINGS
AND THE NAPALM GEL; BURSTER AND FUSE HAD NOT YET BEEN ADDED. 

THE CARRIERS BILLED THE GOVERNMENT AT THE HIGH FIRST-CLASS RATES
ESTABLISHED IN ITEM 1820 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 17
FOR "INCENDIARY BOMBS."  PURSUANT TO SEC. 322 OF THE TRANSPORTATION ACT
OF 1940, (FN2) THE GOVERNMENT PAID THE BILLS OF THE BANGOR AND THE
SEABOARD AS PRESENTED; ON POST-AUDIT, HOWEVER, THE GENERAL ACCOUNTING
OFFICE MADE DEDUCTIONS AGAINST THESE RESPONDENTS' SUBSEQUENT BILLS ON
OTHER SHIPMENTS, ON THE GROUND THAT THE SHIPMENTS IN QUESTION SHOULD
HAVE BEEN CARRIED AT THE LOWER, FIFTH-CLASS, RATE APPLICABLE TO
GASOLINE IN STEEL DRUMS.  (FN3)  THE BILLS OF THE WESTERN PACIFIC WERE
INITIALLY PAID AT THE LOWER RATE.  RESPONDENTS THEREUPON BROUGHT THE
PRESENT SUITS TO RECOVER THE DIFFERENCE BETWEEN THE BILLS AS RENDERED
AND AS PAID IN THE CASE OF THE WESTERN PACIFIC, AND THE AMOUNT OF THE
DEDUCTIONS IN THE OTHER TWO CASES. 

THE GOVERNMENT DEFENDED ON THREE GROUNDS:  (1) THAT ITEM 1820 WAS
INAPPLICABLE BECAUSE ABSENCE OF BURSTER AND FUSE DEPRIVED THESE BOMBS
OF THE ESSENTIAL CHARACTERISTICS OF "INCENDIARY BOMBS," AND HENCE NO
ADDITIONAL SUMS WERE DUE; (2) THAT IF THIS TARIFF ITEM WAS HELD TO
GOVERN, THE TARIFF WOULD BE UNREASONABLE AS APPLIED TO THESE SHIPMENTS,
AND THAT AS TO THIS ISSUE THE COURT PROCEEDINGS SHOULD BE SUSPENDED AND
THE MATTER REFERRED TO THE INTERSTATE COMMERCE COMMISSION; AND (3) THAT
IN ANY EVENT THE BANGOR AND SEABOARD WERE ESTOPPED FROM CHARGING THE
"1820" RATE. 

THE COURT OF CLAIMS, RELYING ON ITS EARLIER DECISION IN UNION PACIFIC
R. CO. V. UNITED STATES, 125 CT. CL. 390, 111 F. SUPP. 266, (FN4)
ENTERED SUMMARY JUDGMENT FOR RESPONDENTS, TWO JUDGES DISSENTING.  (FN5)
IT HELD THAT THE SHIPMENTS IN QUESTION WERE "INCENDIARY BOMBS" WITHIN
THE MEANING OF ITEM 1820 OF THE TARIFF AND THUS ENTITLED TO THE HIGHER
RATE.  IN ADDITION, WHILE SEEMINGLY RECOGNIZING THE GOVERNMENT'S RIGHT
TO HAVE THE DEFENSE OF UNREASONABLENESS DETERMINED BY THE INTERSTATE
COMMERCE COMMISSION, THE COURT RULED THAT THE RUNNING OF THE TWO-YEAR
PERIOD OF LIMITATIONS PROVIDED BY SEC. 16(3) OF THE INTERSTATE COMMERCE
ACT (FN6) CUT OFF THE RIGHT OF REFERRAL TO THE COMMISSION.  LASTLY, THE
COURT OVERRULED THE DEFENSE OF ESTOPPEL AS TO THE RESPONDENTS BANGOR
AND SEABOARD.  BECAUSE OF THE IMPORTANCE OF THESE QUESTIONS IN THE
ADMINISTRATION OF THE INTERSTATE COMMERCE ACT, AND ALLEGED CONFLICT
AMONG THE LOWER COURTS ON THE ISSUE OF LIMITATIONS, WE GRANTED
CERTIORARI.  350 U.S. 953. 

                              I. 

WE ARE MET AT THE OUTSET WITH THE QUESTION OF WHETHER THE COURT OF
CLAIMS PROPERLY APPLIED THE DOCTRINE OF PRIMARY JURISDICTION IN THIS
CASE; THAT IS, WHETHER IT CORRECTLY ALLOCATED THE ISSUES IN THE SUIT
BETWEEN THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION AND THAT
OF THE COURT.  IN THE VIEW OF THE COURT BELOW, THE CASE PRESENTED TWO
ENTIRELY SEPARATE QUESTIONS.  ONE WAS THE QUESTION OF THE CONSTRUCTION
OF THE TARIFF - WHETHER ITEM 1820 WAS APPLICABLE TO THESE SHIPMENTS. 
THE SECOND WAS THE QUESTION OF THE REASONABLENESS OF THAT TARIFF, IF SO
APPLIED.  THE COURT OF CLAIMS ASSUMED, AS IT HAD IN THE UNION PACIFIC
CASE, SUPRA, THAT THE FIRST OF THESE - WHETHER THE "1820" RATE APPLIED
WAS A MATTER SIMPLY OF TARIFF CONSTRUCTION AND THUS PROPERLY WITHIN
THE INITIAL COGNIZANCE OF THE COURT.  (FN7)  THE SECOND - THE
REASONABLENESS OF THE TARIFF AS APPLIED TO THESE SHIPMENTS - IT SEEMED
TO REGARD AS BEING WITHIN THE INITIAL COMPETENCE OF THE INTERSTATE
COMMERCE COMMISSION.  BEFORE THIS COURT NEITHER SIDE HAS QUESTIONED THE
VALIDITY OF THE LOWER COURT'S VIEWS IN THESE RESPECTS.  NEVERTHELESS,
BECAUSE WE REGARD THE MAINTENANCE OF A PROPER RELATIONSHIP BETWEEN THE
COURTS AND THE COMMISSION IN MATTERS AFFECTING TRANSPORTATION POLICY TO
BE OF CONTINUING PUBLIC CONCERN, WE HAVE BEEN CONSTRAINED TO INQUIRE
INTO THIS ASPECT OF THE DECISION.  WE HAVE CONCLUDED THAT IN THE
CIRCUMSTANCES HERE PRESENTED THE QUESTION OF TARIFF CONSTRUCTION, AS
WELL AS THAT OF THE REASONABLENESS OF THE TARIFF AS APPLIED, WAS WITHIN
THE EXCLUSIVE PRIMARY JURISDICTION OF THE INTERSTATE COMMERCE
COMMISSION. 

THE DOCTRINE OF PRIMARY JURISDICTION, LIKE THE RULE REQUIRING
EXHAUSTION OF ADMINISTRATIVE REMEDIES, IS CONCERNED WITH PROMOTING
PROPER RELATIONSHIPS BETWEEN THE COURTS AND ADMINISTRATIVE AGENCIES
CHARGED WITH PARTICULAR REGULATORY DUTIES.  "EXHAUSTION" APPLIES WHERE
A CLAIM IS COGNIZABLE IN THE FIRST INSTANCE BY AN ADMINISTRATIVE AGENCY
ALONE; JUDICIAL INTERFERENCE IS WITHHELD UNTIL THE ADMINISTRATIVE
PROCESS HAS RUN ITS COURSE.  "PRIMARY JURISDICTION," ON THE OTHER HAND,
APPLIES WHERE A CLAIM IS ORIGINALLY COGNIZABLE IN THE COURTS, AND COMES
INTO PLAY WHENEVER ENFORCEMENT OF THE CLAIM REQUIRES THE RESOLUTION OF
ISSUES WHICH, UNDER A REGULATORY SCHEME, HAVE BEEN PLACED WITHIN THE
SPECIAL COMPETENCE OF AN ADMINISTRATIVE BODY; IN SUCH A CASE THE
JUDICIAL PROCESS IS SUSPENDED PENDING REFERRAL OF SUCH ISSUES TO THE
ADMINISTRATIVE BODY FOR ITS VIEWS.  GENERAL AMERICAN TANK CAR CORP. V.
EL DORADO TERMINAL CO., 308 U.S. 422, 433. 

NO FIXED FORMULA EXISTS FOR APPLYING THE DOCTRINE OF PRIMARY
JURISDICTION.  IN EVERY CASE THE QUESTION IS WHETHER THE REASONS FOR
THE EXISTENCE OF THE DOCTRINE ARE PRESENT AND WHETHER THE PURPOSES IT
SERVES WILL BE AIDED BY ITS APPLICATION IN THE PARTICULAR LITIGATION. 
THESE REASONS AND PURPOSES HAVE OFTEN BEEN GIVEN EXPRESSION BY THIS
COURT.  IN THE EARLIER CASES EMPHASIS WAS LAID ON THE DESIRABLE
UNIFORMITY WHICH WOULD OBTAIN IF INITIALLY A SPECIALIZED AGENCY PASSED
ON CERTAIN TYPES OF ADMINISTRATIVE QUESTIONS.  SEE TEXAS & PACIFIC R.
CO. V. ABILENE COTTON OIL CO., 204 U.S. 426.  MORE RECENTLY THE EXPERT
AND SPECIALIZED KNOWLEDGE OF THE AGENCIES INVOLVED HAS BEEN
PARTICULARLY STRESSED.  SEE FAR EAST CONFERENCE V. UNITED STATES, 342
U.S. 570.  THE TWO FACTORS ARE PART OF THE SAME PRINCIPLE: 

"NOW FIRMLY ESTABLISHED, THAT IN CASES RAISING ISSUES OF FACT NOT
WITHIN THE CONVENTIONAL EXPERIENCE OF JUDGES OR CASES REQUIRING THE
EXERCISE OF ADMINISTRATIVE DISCRETION, AGENCIES CREATED BY CONGRESS FOR
REGULATING THE SUBJECT MATTER SHOULD NOT BE PASSED OVER.  THIS IS SO
EVEN THOUGH THE FACTS AFTER THEY HAVE BEEN APPRAISED BY SPECIALIZED
COMPETENCE SERVE AS A PREMISE FOR LEGAL CONSEQUENCES TO BE JUDICIALLY
DEFINED.  UNIFORMITY AND CONSISTENCY IN THE REGULATION OF BUSINESS
ENTRUSTED TO A PARTICULAR AGENCY ARE SECURED, AND THE LIMITED FUNCTIONS
OF REVIEW BY THE JUDICIARY ARE MORE RATIONALLY EXERCISED, BY
PRELIMINARY RESORT FOR ASCERTAINING AND INTERPRETING THE CIRCUMSTANCES
UNDERLYING LEGAL ISSUES TO AGENCIES THAT ARE BETTER EQUIPPED THAN
COURTS BY SPECIALIZATION, BY INSIGHT GAINED THROUGH EXPERIENCE, AND BY
MORE FLEXIBLE PROCEDURE."  ID., AT 574-575. 

THE DOCTRINE OF PRIMARY JURISDICTION THUS DOES "MORE THAN PRESCRIBE
THE MERE PROCEDURAL TIME TABLE OF THE LAWSUIT.  IT IS A DOCTRINE
ALLOCATING THE LAW-MAKING POWER OVER CERTAIN ASPECTS" OF COMMERCIAL
RELATIONS.  "IT TRANSFERS FROM COURT TO AGENCY THE POWER TO DETERMINE"
SOME OF THE INCIDENTS OF SUCH RELATIONS.  (FN8) 

THUS THE FIRST QUESTION PRESENTED IS WHETHER EFFECTUATION OF THE
STATUTORY PURPOSES OF THE INTERSTATE COMMERCE ACT REQUIRES THAT THE
INTERSTATE COMMERCE COMMISSION SHOULD FIRST PASS ON THE CONSTRUCTION OF
THE TARIFF IN DISPUTE HERE; THIS, IN TURN, DEPENDS ON WHETHER THE
QUESTION RAISES ISSUES OF TRANSPORTATION POLICY WHICH OUGHT TO BE
CONSIDERED BY THE COMMISSION IN THE INTERESTS OF A UNIFORM AND EXPERT
ADMINISTRATION OF THE REGULATORY SCHEME LAID DOWN BY THAT ACT. 
DECISION IS GOVERNED BY TWO EARLIER CASES IN THIS COURT.  IN TEXAS &
PACIFIC R. CO. V. AMERICAN TIE & TIMBER CO., 234 U.S. 138, A SHIPPER
ATTEMPTED TO SHIP OAK RAILROAD TIES UNDER A TARIFF FOR "LUMBER."  THE
CARRIER REJECTED THEM, URGING THAT SUCH TIES WERE NOT LUMBER.  IN A
DAMAGE ACTION EXPERT TESTIMONY WAS RECEIVED ON THE QUESTION.  THIS
COURT, HOWEVER, HELD THAT THE INTERSTATE COMMERCE COMMISSION ALONE
COULD RESOLVE THE QUESTION.  THE EFFECT OF THE HOLDING IS CLEAR:  THE
COURTS MUST NOT ONLY REFRAIN FROM MAKING TARIFFS, BUT, UNDER CERTAIN
CIRCUMSTANCES, MUST DECLINE TO CONSTRUE THEM AS WELL.  A
PARTICULARIZATION OF SUCH CIRCUMSTANCES EMERGED IN GREAT NORTHERN R.
CO. V. MERCHANTS ELEVATOR CO., 259 U.S. 285.  THERE THE COURT HELD THAT
WHERE THE QUESTION IS SIMPLY ONE OF CONSTRUCTION THE COURTS MAY PASS ON
IT AS AN ISSUE "SOLELY OF LAW."  BUT WHERE WORDS IN A TARIFF ARE USED
IN A PECULIAR OR TECHNICAL SENSE, AND WHERE EXTRINSIC EVIDENCE IS
NECESSARY TO DETERMINE THEIR MEANING OR PROPER APPLICATION, SO THAT
"THE ENQUIRY IS ESSENTIALLY ONE OF FACT AND OF DISCRETION IN TECHNICAL
MATTERS," THEN THE ISSUE OF TARIFF APPLICATION MUST FIRST GO TO THE
COMMISSION.  THE REASON IS PLAINLY SET FORTH:  SUCH A "DETERMINATION IS
REACHED ORDINARILY UPON VOLUMINOUS AND CONFLICTING EVIDENCE, FOR THE
ADEQUATE APPRECIATION OF WHICH ACQUAINTANCE WITH MANY INTRICATE FACTS
OF TRANSPORTATION IS INDISPENSABLE; AND SUCH ACQUAINTANCE IS COMMONLY
TO BE FOUND ONLY IN A BODY OF EXPERTS."  ID., AT 291.  WE MUST
THEREFORE DECIDE WHETHER A DETERMINATION OF THE MEANING OF THE TERM
"INCENDIARY BOMB" IN ITEM 1820 INVOLVES FACTORS "THE ADEQUATE
APPRECIATION OF WHICH" PRESUPPOSES AN "ACQUAINTANCE WITH MANY INTRICATE
FACTS OF TRANSPORTATION."  WE CONCLUDE THAT IT DOES. 

A TARIFF IS NOT AN ABSTRACTION.  IT EMBODIES AN ANALYSIS OF THE COSTS
INCURRED IN THE TRANSPORTATION OF A CERTAIN ARTICLE AND A DECISION AS
TO HOW MUCH SHOULD, THEREFORE, BE CHARGED FOR THE CARRIAGE OF THAT
ARTICLE IN ORDER TO PRODUCE A FAIR AND REASONABLE RETURN.  COMPLEX AND
TECHNICAL COST-ALLOCATION AND ACCOUNTING PROBLEMS MUST BE SOLVED IN
SETTING THE TARIFF INITIALLY.  IN THE CASE OF "INCENDIARY BOMBS," SINCE
IT IS EXPENSIVE TO TAKE THE ELABORATE SAFETY PRECAUTIONS NECESSARY TO
CARRY SUCH ITEMS IN SAFETY, EVIDENTLY THERE MUST HAVE BEEN CALCULATION
OF THE COSTS OF HANDLING, SUPERVISING AND INSURING AN INHERENTLY
DANGEROUS CARGO.  IN OTHER WORDS, THERE WERE OBVIOUSLY COMMERCIAL
REASONS WHY A HIGHER TARIFF WAS SET FOR INCENDIARY BOMBS THAN FOR, SAY,
LUMBER.   IT THEREFORE FOLLOWS THAT THE DECISION WHETHER A CERTAIN ITEM
WAS INTENDED TO BE COVERED BY THE TARIFF FOR INCENDIARY BOMBS INVOLVES
AN INTIMATE KNOWLEDGE OF THESE VERY REASONS THEMSELVES.  WHETHER STEEL
CASINGS FILLED WITH NAPALM GEL ARE INCENDIARY BOMBS IS, IN THIS
CONTEXT, MORE THAN SIMPLY A QUESTION OF READING THE TARIFF LANGUAGE OR
APPLYING ABSTRACT "RULES" OF CONSTRUCTION.  FOR THE BASIC ISSUE IS HOW
FAR THE REASONS JUSTIFYING A HIGH RATE FOR THE CARRIAGE OF EXTRA
HAZARDOUS OBJECTS WERE APPLICABLE TO THE INSTANT SHIPMENT.  DO THE
FACTORS WHICH MAKE FOR HIGH COSTS AND THEREFORE HIGH RATES ON
INCENDIARY BOMBS ALSO CALL FOR A HIGH RATE ON STEEL CASINGS FILLED WITH
NAPALM GEL?  TO ANSWER THAT QUESTION THERE MUST BE CLOSE FAMILIARITY
WITH THESE FACTORS.  SUCH FAMILIARITY IS POSSESSED NOT BY THE COURTS
BUT BY THE AGENCY WHICH HAD THE EXCLUSIVE POWER TO PASS ON THE RATE IN
THE FIRST INSTANCE.  AND, ON THE OTHER HAND, TO DECIDE THE QUESTION OF
THE SCOPE OF THIS TARIFF WITHOUT CONSIDERATION OF THE FACTORS AND
PURPOSES UNDERLYING THE TERMINOLOGY EMPLOYED WOULD MAKE THE PROCESS OF
ADJUDICATION LITTLE MORE THAN AN EXERCISE IN SEMANTICS. 

THE MAIN THRUST OF THE GOVERNMENT'S ARGUMENT ON THE CONSTRUCTION
QUESTION WENT TO THE FACT THAT THE SHIPMENTS HERE INVOLVED WERE NOT AS
HAZARDOUS AS CONTEMPLATED BY THE TERM "INCENDIARY BOMB" AS USED IN THE
TARIFF, AND THAT THEREFORE THE TARIFF SHOULD NOT BE CONSTRUED TO COVER
THEM.  (FN9) SIMILARLY, THE DISSENTING JUDGES BELOW EMPHASIZED THE
ABSENCE FROM THE SHIPMENTS OF THE COMMERCIAL FACTORS WHICH CALL FOR A
HIGH RATE ON INCENDIARY BOMBS:  "IF THE REASON FOR THE HIGH FREIGHT
RATE IS THE INCENDIARY QUALITY OF THE FREIGHT, AND IF THE FREIGHT DOES
NOT HAVE THE INCENDIARY QUALITY, THE REASON FOR THE HIGH RATE VANISHES
AND THE RATE SHOULD VANISH WITH IT."  132 CT. CL., AT 118, 131 F.
SUPP., AT 921.  THE DIFFICULTY WITH THIS LINE OF ARGUMENT IS THAT WE DO
NOT KNOW WHETHER THE "INCENDIARY QUALITY OF THE FREIGHT" WAS IN FACT
THE REASON FOR THE HIGH RATE, STILL LESS WHETHER THAT WAS THE ONLY
REASON AND HOW MUCH WEIGHT SHOULD BE ASSIGNED TO IT.  COURTS WHICH DO
NOT MAKE RATES CANNOT KNOW WITH EXACTITUDE THE FACTORS WHICH GO INTO
THE RATE-MAKING PROCESS.  AND FOR THE COURT HERE TO UNDERTAKE TO FIX
THE LIMITS OF THE TARIFF'S APPLICATION WITHOUT KNOWLEDGE OF SUCH
FACTORS, AND THE EXTENT TO WHICH THEY ARE PRESENT OR ABSENT IN THE
PARTICULAR CASE, IS TANTAMOUNT TO ENGAGING IN JUDICIAL GUESSWORK.  IT
WAS THE COMMISSION AND NOT THE COURT WHICH ORIGINALLY DETERMINED WHY
INCENDIARIES SHOULD BE TRANSPORTED AT A HIGH RATE.  IT IS THUS THE
COMMISSION WHICH SHOULD DETERMINE WHETHER SHIPMENTS OF NAPALM GEL
BOMBS, MINUS BURSTERS AND FUSES, MEET THOSE REQUIREMENTS; THAT IS,
WHETHER THE FACTORS MAKING FOR CERTAIN COSTS AND THUS A CERTAIN RATE ON
INCENDIARIES ARE PRESENT IN THE CARRIAGE OF SUCH INCOMPLETED BOMBS. 

THIS CONCLUSION IS FORTIFIED BY THE ARTIFICIALITY OF THE DISTINCTION
BETWEEN THE ISSUES OF TARIFF CONSTRUCTION AND OF THE REASONABLENESS OF
THE TARIFF AS APPLIED, THE LATTER BEING RECOGNIZED BY ALL TO BE ONE FOR
THE INTERSTATE COMMERCE COMMISSION.  FOR THE GOVERNMENT'S THESIS ON THE
ISSUE OF REASONABLENESS IS NOT THAT THE RATE ON INCENDIARY BOMBS IS, IN
GENERAL, TOO HIGH.  IT ARGUES ONLY THAT THE RATE "AS APPLIED" TO THESE
PARTICULAR SHIPMENTS IS TOO HIGH - I.E., THAT SINCE THE EXPENSES WHICH
HAVE TO BE MET IN SHIPPING INCENDIARIES HAVE NOT BEEN INCURRED IN THIS
CASE, THE CARRIERS WILL BE MAKING AN UNREASONABLE PROFIT ON THESE
SHIPMENTS.  THIS SEEMS TO US TO BE BUT ANOTHER WAY OF SAYING THAT THE
WRONG TARIFF WAS APPLIED.  IN BOTH INSTANCES THE ISSUE IS WHETHER THE
FACTORS WHICH CALL FOR A HIGH RATE ON INCENDIARY BOMB SHIPMENTS ARE
PRESENT IN A SHIPMENT OF BOMB CASINGS FULL OF NAPALM GEL BUT LACKING
BURSTERS AND FUSES.  AND THE MERE FACT THAT THE ISSUE IS PHRASED IN ONE
INSTANCE AS A MATTER OF TARIFF CONSTRUCTION AND IN THE OTHER AS A
MATTER OF REASONABLENESS SHOULD NOT BE DETERMINATIVE ON THE
JURISDICTIONAL ISSUE.  TO HOLD OTHERWISE WOULD MAKE THE DOCTRINE OF
PRIMARY JURISDICTION AN ABSTRACTION TO BE CALLED INTO OPERATION AT THE
WHIM OF THE PLEADER.  (FN10) 

BY NO MEANS DO WE IMPLY THAT MATTERS OF TARIFF CONSTRUCTION ARE NEVER
COGNIZABLE IN THE COURTS.  WE ADHERE TO THE DISTINCTIONS LAID DOWN IN
GREAT NORTHERN R. CO. V. MERCHANTS ELEVATOR CO., SUPRA, WHICH CALL FOR
DECISION BASED ON THE PARTICULAR FACTS OF EACH CASE.  CERTAINLY THERE
WOULD BE NO NEED TO REFER THE MATTER OF CONSTRUCTION TO THE COMMISSION
IF THAT BODY, IN PRIOR RELEASES OR OPINIONS, HAS ALREADY CONSTRUED THE
PARTICULAR TARIFF AT ISSUE OR HAS CLARIFIED THE FACTORS UNDERLYING IT.
SEE CRANCER V. LOWDEN, 315 U.S. 631.  AND IN MANY INSTANCES CONSTRUING
THE TARIFF DOES NOT CALL FOR EXAMINATION OF THE UNDERLYING COST
ALLOCATION WHICH WENT INTO THE MAKING OF THE TARIFF IN THE FIRST
INSTANCE.  WE SAY MERELY THAT WHERE, AS HERE, THE PROBLEM OF COST
ALLOCATION IS RELEVANT, AND WHERE THEREFORE THE QUESTIONS OF
CONSTRUCTION AND REASONABLENESS ARE SO INTERTWINED THAT THE SAME
FACTORS ARE DETERMINATIVE ON BOTH ISSUES, THEN IT IS THE COMMISSION
WHICH MUST FIRST PASS ON THEM. 

WE HOLD, THEREFORE, THAT BOTH THE ISSUES OF TARIFF CONSTRUCTION AND
THE REASONABLENESS OF THE TARIFF AS APPLIED WERE INITIALLY MATTERS FOR
THE COMMISSION'S DETERMINATION. 

                                       II. 

WE COME THEN TO THE QUESTION OF WHETHER REFERRAL OF THESE ISSUES TO
THE COMMISSION WAS BARRED BY THE TWO-YEAR PERIOD OF LIMITATION
CONTAINED IN SEC. 16(3) OF THE INTERSTATE COMMERCE ACT.  WE HOLD THAT
IT WAS NOT. 

SUBJECT TO THIS CHAPTER FOR RECOVERY OF THEIR CHARGES  ...  SHALL BE
BEGUN WITHIN TWO YEARS FROM THE TIME THE CAUSE OF ACTION ACCRUES, AND
NOT AFTER."  (FN11)  THIS PROVISION MAKES IT CLEAR THAT WHERE A CARRIER
SUES A PRIVATE SHIPPER THE ACTION MUST BE BROUGHT WITHIN TWO YEARS. 
HOWEVER, THE TUCKER ACT, 28 U.S.C. SEC. 2501, PROVIDES THAT "EVERY
CLAIM OF WHICH THE COURT OF CLAIMS HAS JURISDICTION SHALL BE BARRED
UNLESS THE PETITION THEREON IS FILED  ...  WITHIN SIX YEARS AFTER SUCH
CLAIM FIRST ACCRUES."  RELYING ON THE BROAD LANGUAGE OF THE LATTER ACT,
THE COURT OF CLAIMS HAS, SINCE 1926, CONSISTENTLY HELD THAT SEC. 16(3)
DOES NOT APPLY TO SUITS BY CARRIERS TO RECOVER ALLEGED UNDERCHARGES
FROM THE UNITED STATES AS SHIPPER.  SOUTHERN PAC. CO. V. UNITED STATES,
62 CT. CL. 391; SEABOARD AIR LINE R. CO. V. UNITED STATES, 113 CT. CL.
437, 83 F. SUPP. 1012; UNION PACIFIC R. CO. V. UNITED STATES, 114 CT.
CL. 714, 86 F. SUPP. 907.  THE PRESENT SUITS WERE THUS HELD TIMELY
BROUGHT, (FN12) EVEN THOUGH MORE THAN TWO YEARS HAD ELAPSED SINCE THE
ACCRUAL OF THE CAUSE OF ACTION.  (FN13)  HOWEVER, THE COURT OF CLAIMS
HELD THAT THE TWO-YEAR LIMITATION OF SEC. 16(3) DID BAR THE GOVERNMENT
FROM OBTAINING A REFERENCE OF ITS DEFENSE OF UNREASONABLENESS TO THE
INTERSTATE COMMERCE COMMISSION.  (FN14)  PRESUMABLY IT WOULD HAVE RULED
LIKEWISE AS TO THE ISSUE OF TARIFF CONSTRUCTION HAD IT REGARDED THAT
QUESTION AS LYING INITIALLY WITHIN THE COMPETENCE OF THE COMMISSION. 
IN OTHER WORDS, THE HOLDING BELOW WAS THAT THE UNITED STATES CAN BE
SUED FOR SIX YEARS BUT CAN RAISE CERTAIN DEFENSES ONLY IF THE SUIT IS
BROUGHT IN THE FIRST TWO OF THOSE YEARS. 

WE MAY ASSUME, WITHOUT DECIDING, THAT THE GOVERNMENT WOULD HAVE BEEN
BARRED BY SEC. 16(3) FROM FILING AN AFFIRMATIVE SUIT BEFORE THE
COMMISSION TO RECOVER OVERCHARGES FROM A CARRIER.  NEVERTHELESS WE DO
NOT THINK THAT THE STATUTE OPERATES TO BAR REFERENCE TO THE COMMISSION
OF QUESTIONS RAISED BY WAY OF DEFENSE IN SUITS WHICH ARE THEMSELVES
TIMELY BROUGHT.  RESPONDENTS IN EFFECT ASK US TO HOLD THAT A SUIT MAY
BE BROUGHT FOR SIX YEARS BUT THAT CERTAIN DEFENSES THERETO MAY BE
RAISED ONLY FOR TWO YEARS.  ONLY THE CLEAREST CONGRESSIONAL LANGUAGE
COULD FORCE US TO A RESULT WHICH WOULD ALLOW A CARRIER TO RECOVER
UNREASONABLE CHARGES WITH IMPUNITY MERELY BY WAITING TWO YEARS BEFORE
FILING SUIT. 

COMMISSION INCIDENT TO JUDICIAL PROCEEDINGS.  ON ITS FACE IT HAS TO DO
ONLY WITH THE COMMENCEMENT OF ACTIONS OR REPARATION PROCEEDINGS BEFORE
THE COMMISSION.  THERE IS THEREFORE NO LANGUAGE WHICH MILITATES AGAINST
THE CONCLUSION THAT THE STATUTE DOES NOT APPLY TO REFERRALS.  MORE
IMPORTANT, THE BASIC POLICY BEHIND STATUTES OF LIMITATIONS HAS NO
RELEVANCE TO THE SITUATION HERE.  THE PURPOSE OF SUCH STATUTES IS TO
KEEP STALE LITIGATION OUT OF THE COURTS.  THEY ARE AIMED AT LAWSUITS,
NOT AT THE CONSIDERATION OF PARTICULAR ISSUES IN LAWSUITS.  HERE THE
ACTION WAS ALREADY IN COURT AND HELD TO HAVE BEEN BROUGHT IN TIME.  TO
USE THE STATUTE OF LIMITATIONS TO CUT OFF THE CONSIDERATION OF A
PARTICULAR DEFENSE IN THE CASE IS QUITE FOREIGN TO THE POLICY OF
PREVENTING THE COMMENCEMENT OF STALE LITIGATION.  WE THINK IT WOULD BE
INCONGRUOUS TO HOLD THAT ONCE A LAWSUIT IS PROPERLY BEFORE THE COURT,
DECISION MUST BE MADE WITHOUT CONSIDERATION OF ALL THE ISSUES IN THE
CASE AND WITHOUT THE BENEFIT OF ALL THE APPLICABLE LAW.  IF THIS
LITIGATION IS NOT STALE, THEN NO ISSUE IN IT CAN BE DEEMED STALE. 

IT IS ARGUED THAT THIS COURT HAS CONSTRUED SEC. 16(3) AS
"JURISDICTIONAL" AND THAT THE COMMISSION IS THEREFORE BARRED ABSOLUTELY
FROM HEARING QUESTIONS AS TO THE REASONABLENESS OF RATES ARISING IN
SUITS BROUGHT AFTER TWO YEARS, WHETHER SUCH QUESTIONS COME TO THE
COMMISSION BY WAY OF REFERRAL OR IN AN ORIGINAL SUIT.  RELIANCE IS
PLACED UPON A.J. PHILLIPS CO. V. GRAND TRUNK R. CO., 236 U.S. 662;
WILLIAM DANZER & CO. V. GULF & S.I.R. CO., 268 U.S. 633; MIDSTATE CO.
V. PENNSYLVANIA R. CO., 320 U.S. 356.  BUT THESE CASES ALL DEALT WITH
AFFIRMATIVE CLAIMS FOR THE RECOVERY OF TRANSPORTATION CHARGES, AND NOT
WITH REFERRALS INCIDENT TO SUITS WHICH WERE ORIGINALLY BROUGHT IN
TIME.  THE TEACHING OF THE MIDSTATE CASE, FOR INSTANCE, IS THAT THE
RUNNING OF THE STATUTE DESTROYS THE RIGHT TO AFFIRMATIVE RECOVERY AS
WELL AS THE REMEDY, SO THAT THE PERIOD OF LIMITATIONS CANNOT BE WAIVED
BY THE PARTIES.  BUT HERE THE GOVERNMENT IS NOT ASSERTING A RIGHT TO
AFFIRMATIVE RECOVERY.  IT IS SEEKING ONLY TO HAVE ADJUDICATED QUESTIONS
RAISED BY WAY OF DEFENSE.  IT IS THEREFORE IRRELEVANT WHETHER THE
STATUTE OF LIMITATIONS IS "JURISDICTIONAL" OR NOT; THE QUESTION WOULD
STILL REMAIN WHETHER CONGRESS INTENDED IT TO APPLY TO REFERRALS AS WELL
AS TO AFFIRMATIVE SUITS.  NOR DOES MORRISDALE COAL CO. V. PENNSYLVANIA
R. CO., 230 U.S. 304, HELP THE RESPONDENTS.  THERE AGAIN THE STATUTE OF
LIMITATIONS WAS INVOKED AGAINST A PLAINTIFF IN ORDER TO BAR AN
AFFIRMATIVE CLAIM WHICH WAS UNTIMELY FILED.  A COAL SHIPPER HAD SUED A
CARRIER FOR DAMAGES ARISING OUT OF THE ALLEGED DISCRIMINATORY ALLOTMENT
OF RAILROAD CARS FOR ITS USE.  STATING THAT THE PROPRIETY OF THE
CARRIER'S METHOD OF ALLOTMENT, EVEN THOUGH INCIDENT TO A DAMAGE ACTION,
WAS COGNIZABLE ONLY BY THE COMMISSION, AND THAT REDRESS THERE WAS
GOVERNED BY THE TWO-YEAR STATUTE OF LIMITATIONS, THE COURT HELD THAT
THE STATUTE COULD NOT BE EVADED BY FILING SUIT IN THE DISTRICT COURT,
RATHER THAN BEFORE THE COMMISSION, AND THEN HAVING THE BARRED CLAIM
ADJUDICATED BY REFERRAL TO THE LATTER.  IN EFFECT THE HOLDING WAS THAT
THE PLAINTIFF HAD INVOKED THE WRONG TRIBUNAL, AND THAT SINCE
LIMITATIONS BARRED SUIT BEFORE THE CORRECT TRIBUNAL NO REFERRAL COULD
BE MADE TO THE LATTER.  MORRISDALE MUST BE LIMITED TO ITS PECULIAR
FACTS, AND WE SHALL NOT EXTEND IT TO BAR THE REFERRAL OF DEFENSES IN
ACTIONS PROPERLY AND TIMELY BROUGHT, AS THE COURT OF CLAIMS HAS HELD
THIS ONE WAS.  (FN15) 

WE ARE TOLD THAT THE GOVERNMENT CAN PROTECT ITSELF, WHEN IT BELIEVES
IT HAS BEEN CHARGED AN UNREASONABLE RATE, BY FILING AN AFFIRMATIVE
CLAIM FOR REPARATIONS WITH THE COMMISSION WITHIN THE TWO-YEAR PERIOD
PROVIDED BY SEC. 16(3).  BUT CONGRESS HAS RELIEVED THE GOVERNMENT FROM
FILING SUCH ANTICIPATORY SUITS BY EXPRESSLY AUTHORIZING THE GENERAL
ACCOUNTING OFFICE TO DEDUCT OVERPAYMENTS FROM SUBSEQUENT BILLS OF THE
CARRIER IF, ON POST-AUDIT, IT FINDS THAT THE UNITED STATES HAS BEEN
OVERCHARGED.  (FN16)  THIS RIGHT WAS THOUGHT TO BE A NECESSARY MEASURE
TO PROTECT THE GOVERNMENT, SINCE CARRIERS' BILLS MUST BE PAID ON
PRESENTATION AND BEFORE AUDIT.  ON RESPONDENTS' THEORY THE GOVERNMENT
COULD INVOKE THIS RIGHT ONLY AT THE PERIL OF LOSING ITS DEFENSES IN A
LATER SUIT BY THE CARRIER.  EVIDENTLY THIS WAS NOT THE PURPOSE OF
CONGRESS IN AUTHORIZING UNILATERAL SET-OFF.  (FN17) 

WE HOLD, THEREFORE, THAT THE LIMITATION OF SEC. 16(3) DOES NOT BAR A
REFERENCE TO THE INTERSTATE COMMERCE COMMISSION OF QUESTIONS RAISED BY
WAY OF DEFENSE AND WITHIN THE COMMISSION'S PRIMARY JURISDICTION, AS
WERE THESE QUESTIONS RELATING TO THE APPLICABLE TARIFF. 

                                    III. 

THERE REMAINS THE QUESTION OF WHETHER THE COURT OF CLAIMS PROPERLY
DISMISSED THE GOVERNMENT'S DEFENSE OF ESTOPPEL AS TO THE RESPONDENTS
BANGOR AND SEABOARD.  WE DEAL WITH IT NOW BECAUSE THAT DEFENSE WOULD BE
REACHED SHOULD THE FURTHER PROCEEDINGS BELOW, WHICH MUST FOLLOW IN
CONSEQUENCE OF WHAT WE HAVE ALREADY SAID, RESULT IN ADHERENCE TO THE
VIEW THAT ITEM 1820 APPLIES TO THESE SHIPMENTS.  (FN18) 

THE GOVERNMENT'S CLAIM IS THAT THE BANGOR AND SEABOARD WERE ESTOPPED
FROM CHARGING THE "1820" RATE BECAUSE OF THE ARMY'S RELIANCE ON A
RULING OF THE OFFICIAL CLASSIFICATION COMMITTEE, A RAILROAD TARIFF
AGENCY TO WHICH THESE TWO RESPONDENTS BELONGED, THAT THIS TYPE OF
NAPALM GEL BOMB SHIPMENT WOULD BE CARRIED AT A LOWER RATE.  THE COURT
OF CLAIMS REJECTED THIS DEFENSE BECAUSE (1) THE RULING WAS LATER
WITHDRAWN BY THE COMMITTEE; (2) THE GOVERNMENT HAD SHOWN NO DETRIMENTAL
RELIANCE ON THE RULING; (3) IT HAD PAID THE HIGH RATE BILLED FOR ALL
SHIPMENTS; AND (4) NEITHER CARRIER HAD ACQUIESCED IN THE COMMITTEE'S
RULING. 

WE THINK THAT THE COURT OF CLAIMS ERRED IN DISPOSING OF THIS DEFENSE
BY SUMMARY JUDGMENT.  IT APPEARS TO BE UNDISPUTED THAT THE RULING IN
QUESTION WAS NOT RESCINDED UNTIL AFTER ALL OF THESE SHIPMENTS HAD BEEN
MADE.  (FN19)  THE GOVERNMENT'S AFFIDAVITS IN OPPOSITION TO THE MOTION
FOR SUMMARY JUDGMENT WERE, IN OUR OPINION, SUFFICIENT TO ENTITLE IT TO
AN OPPORTUNITY TO PROVE RELIANCE AND DETRIMENT.  THE FACT THAT THE
GOVERNMENT PAID THE CARRIER'S BILLS AS RENDERED IS WITHOUT SIGNIFICANCE
IN LIGHT OF SEC. 322 OF THE TRANSPORTATION ACT, SUPRA, REQUIRING
PAYMENT "UPON PRESENTATION" OF SUCH BILLS AND POSTPONING FINAL
SETTLEMENT UNTIL AUDIT.  AND THE QUESTION WHETHER THE OFFICIAL
CLASSIFICATION COMMITTEE HAD AUTHORITY TO BIND THESE TWO CARRIERS TO
ACCEPTANCE OF A LOWER RATE PRESENTS ISSUES OF FACT WHICH MUST BE
TRIED.  NOR, UNLIKE THE CASE OF A PRIVATE SHIPPER, DO WE THINK THAT THE
DEFENSE OF ESTOPPEL IS UNAVAILABLE TO THE GOVERNMENT.  SEE 49 U.S.C.
SEC. 22.  CF.  OREGON-WASH.  R.&N. CO. V. UNITED STATES, 255 U.S. 339;
WESTERN PAC. R. CO. V. UNITED STATES, 255 U.S. 349.  (FN20)  WE
CONCLUDE THAT THE GOVERNMENT SHOULD HAVE AN OPPORTUNITY TO PROVE
ESTOPPEL, WITHOUT ANY INTIMATION, OF COURSE, AS TO WHETHER IT WILL BE
ABLE TO ESTABLISH THE DEFENSE. 

THE JUDGMENT BELOW MUST BE REVERSED AND THE CASE REMANDED TO THE
COURT OF CLAIMS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THE SUITS WERE BROUGHT UNDER THE TUCKER ACT, 28 U.S.C. SEC.
1491. 

FN2  54 STAT. 955, 49 U.S.C. SEC. 66.  THIS SECTION PROVIDES:
"PAYMENT FOR TRANSPORTATION OF THE UNITED STATES MAIL AND OF PERSONS OR
PROPERTY FOR OR ON BEHALF OF THE UNITED STATES BY ANY COMMON CARRIER
SUBJECT TO THE INTERSTATE COMMERCE ACT, AS AMENDED, OR THE CIVIL
AERONAUTICS ACT OF 1938, SHALL BE MADE UPON PRESENTATION OF BILLS
THEREFOR, PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL ACCOUNTING
OFFICE, BUT THE RIGHT IS HEREBY RESERVED TO THE UNITED STATES
GOVERNMENT TO DEDUCT THE AMOUNT OF ANY OVERPAYMENT TO ANY SUCH CARRIER
FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE SUCH CARRIER."    FN3  IT
IS NOT ENTIRELY CLEAR FROM THE RECORD JUST WHAT RATE THE GOVERNMENT
BELIEVES IS APPLICABLE TO THESE SHIPMENTS.  IT SEEMS TO CONCEDE THAT
ITEM 1895 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 17, COVERING
"EMPTY AERIAL BOMBS," DOES NOT APPLY, ALTHOUGH THIS WAS THE ORIGINAL
CLASSIFICATION ASSIGNED TO SUCH SHIPMENTS BY THE OFFICIAL
CLASSIFICATION COMMITTEE, A RAILROAD TARIFF AGENCY.  THE ESSENCE OF THE
GOVERNMENT'S POSITION SEEMS TO BE THAT THESE SHIPMENTS, BEING
NONINCENDIARY, WERE A MERE COMBINATION OF GASOLINE, NAPALM THICKENER,
AND STEEL CASINGS.  SINCE THESE THREE ITEMS, STANDING ALONE, ARE ALL
CARRIED AT THE FIFTH-CLASS RATE, THE GOVERNMENT URGES THAT THE
"COMBINATION RULE" SHOULD APPLY AND THE ARTICLES BE CARRIED AT THE SAME
FIFTH-CLASS RATE UNDER RULE 18 OF CONSOLIDATED FREIGHT CLASSIFICATION
NO. 17. 

FN4  IN THAT CASE THE COURT OF CLAIMS HELD ITEM 1820 APPLICABLE TO
SHIPMENTS SIMILAR TO THOSE INVOLVED HERE.  THE GOVERNMENT DID NOT SEEK
REVIEW OF THAT DECISION. 

FN5  132 CT. CL. 115, 131 F. SUPP. 919.  THE DISSENTERS WERE JUDGE
MADDEN AND CHIEF JUDGE JONES. 

FN6  24 STAT. 384, AS AMENDED, 49 U.S.C. SEC. 16(3). 

FN7  THE COURT OF CLAIMS STATED IN THE UNION PACIFIC CASE, 125 CT.
CL., AT 393, 111 F. SUPP., AT 268:  "AT THE OUTSET, IT SHOULD BE NOTED
THAT WHILE THIS COURT HAS NO RATE-MAKING FUNCTIONS  ... THE
CONSTRUCTION AND APPLICATION OF PUBLISHED RATES AND CLASSIFICATIONS ARE
PROPER MATTERS FOR THE COURTS AS WELL AS FOR THE INTERSTATE COMMERCE
COMMISSION." 

FN8  JAFFE, PRIMARY JURISDICTION RECONSIDERED, 102 UNIV.  PA. L. REV.
577, 583-584 (1954). 

FN9  IN RESPONSE TO THE MOTION FOR SUMMARY JUDGMENT THE GOVERNMENT
PRESENTED AFFIDAVITS BY CHEMICAL ENGINEERS STATING THAT NAPALM GEL IS
NOT INCENDIARY.  BUT THESE AFFIDAVITS BECOME MEANINGFUL ONLY IF THE
COURT KNOWS THE PRECISE RELEVANCE OF THE INCENDIARY QUALITY OF THE
SHIPMENTS TO THE SETTING OF THE RATE. 

FN10  THE ARTIFICIALITY OF TRYING TO SEPARATE THE ISSUE OF
"CONSTRUCTION" FROM THAT OF "REASONABLENESS AS APPLIED" IS ILLUSTRATED
BY THE COURT OF CLAIMS' HOLDING IN THE UNION PACIFIC CASE, SUPRA.
THERE, AFTER HOLDING THAT THE ABSENCE OF BURSTERS AND FUSES DID "NOT
AFFECT THE IDENTITY OF THE ARTICLES" AS INCENDIARY BOMBS, THE COURT
WENT ON TO SAY THAT "IT MAY WELL BE THAT A LOWER TARIFF RATE SHOULD
APPLY TO THE CARRIAGE OF THE LESS HAZARDOUS INCENDIARY BOMB (ONE
WITHOUT BURSTER AND FUSE).  THIS QUESTION IS NOT WITHIN OUR
JURISDICTION, HOWEVER, AS THE QUESTION OF THE REASONABLENESS OF RATES
IS A MATTER ENTRUSTED BY CONGRESS SOLELY TO THE INTERSTATE COMMERCE
COMMISSION."  125 CT. CL., AT 393, 394, 111 F. SUPP., AT 268. 
SIMILARLY, THE GOVERNMENT HERE CONCEDES THAT THE QUESTION OF HAZARD
"GOES TO THE ISSUE OF REASONABLENESS," ALTHOUGH ARGUING THAT IT IS
"ALSO RELEVANT TO THE QUESTION OF TARIFF INTERPRETATION, FOR, LIKE ANY
OTHER INSTRUMENT, A TARIFF IS TO BE READ IN THE LIGHT OF ITS KNOWN
PURPOSES AND IN A MANNER WHICH AVOIDS UNNECESSARY AND GROSS
UNFAIRNESS." 

FN11  24 STAT. 384, AS AMENDED, 49 U.S.C. SEC. 16(3)(A). 

FN12  THE SUITS WERE INSTITUTED IN 1954.  IN THE WESTERN PACIFIC CASE
THE CARRIER'S CLAIMS ACCRUED IN 1948 AND 1950, WHEN THE UNITED STATES
PAID THE LOWER RATE INSTEAD OF THE "1820" RATE FOR WHICH IT WAS
BILLED.  AS TO THE BANGOR AND SEABOARD CASES, WHERE THE UNITED STATES
INITIALLY PAID THE "1820" RATE AS BILLED (PRESUMABLY IN 1944 WHEN THE
SHIPMENTS WERE MADE), AND SUBSEQUENTLY READJUSTED THAT RATE ON POST
AUDIT, IT IS IMPOSSIBLE TO SAY WHEN THE CLAIMS ACCRUED AS THE RECORD IS
SILENT AS TO WHEN THE POST-AUDIT READJUSTMENT WAS MADE. 

FN13  ALTHOUGH QUESTIONING THE SOUNDNESS OF THIS RULING WHICH
SUBJECTS CARRIERS' CLAIMS AGAINST THE UNITED STATES AS SHIPPER TO A
MORE LENIENT STATUTE OF LIMITATIONS THAN THAT APPLICABLE TO THEIR
CLAIMS AGAINST OTHER SHIPPERS, THE GOVERNMENT HAS NOT CHALLENGED IT
HERE.  WE THEREFORE DO NOT PASS ON IT. 

FN14  THE OPINION OF THE COURT OF CLAIMS DOES NOT EXPRESSLY REFER TO
THE TWO-YEAR PERIOD OF SEC. 16(3).  THE CASES CITED BY THE COURT,
HOWEVER, MAKE IT CLEAR THAT IT HAD IN MIND THAT PROVISION, PROBABLY
SEC. 16(3)(C), WHICH READS:  "FOR RECOVERY OF OVERCHARGES ACTION AT LAW
SHALL BE BEGUN OR COMPLAINT FILED WITH THE COMMISSION AGAINST CARRIERS
SUBJECT TO THIS CHAPTER WITHIN TWO YEARS FROM THE TIME THE CAUSE OF
ACTION ACCRUES, AND NOT AFTER  ...  ." 

FN15  THE FACT THAT IN THIS INSTANCE THE ISSUES OF TARIFF
"CONSTRUCTION" AND "REASONABLENESS" WERE BOTH REFERRABLE TO THE
COMMISSION DOES NOT, OF COURSE, BRING THE CASE WITHIN MORRISDALE.  BOTH
OF THESE QUESTIONS WERE ISSUES ONLY BY REASON OF THE GOVERNMENT'S
DEFENSE; NEITHER WAS PART OF THE CARRIER'S AFFIRMATIVE CASE.  IN OTHER
WORDS, HAD THE APPLICABILITY OF THIS TARIFF NOT BEEN CHALLENGED BY THE
GOVERNMENT, THE CARRIER'S OWN CASE WOULD HAVE PRESENTED NOTHING WHICH
WAS REFERRABLE TO THE COMMISSION. 

FN16  SEE N. 2, SUPRA. 

FN17  STATISTICS FURNISHED BY THE COMPTROLLER GENERAL SHOW THAT SINCE
1948 THE GENERAL ACCOUNTING OFFICE HAS POST-AUDITED 17,220,783 BILLS
PRESENTED BY CARRIERS.  IN THE SAME PERIOD POST-AUDIT REVEALED
OVERPAYMENT IN 1,102,654 CASES.  THE MAGNITUDE OF THESE FIGURES
UNDERSCORES THE IMPOSSIBILITY OF REQUIRING THE GOVERNMENT TO FILE
ANTICIPATORY SUITS BEFORE THE I.C.C. IN EVERY CASE WHERE IT THINKS THE
CARRIER MIGHT LATER SUE TO RECOVER THE AMOUNT SET OFF BY THE
GOVERNMENT. 

FN18  THE ESTOPPEL DEFENSE IS NOT ASSERTED AGAINST THE WESTERN
PACIFIC, SO THAT THIS CASE MUST IN ANY EVENT GO TO THE COMMISSION. 
HENCE ADJUDICATION OF THE ESTOPPEL DEFENSE AS TO THE BANGOR AND
SEABOARD WOULD NO DOUBT AWAIT THE COMMISSION'S DETERMINATION AS TO
WHETHER THE "1820" TARIFF WAS APPLICABLE TO THESE SHIPMENTS, AND
REASONABLE IF SO APPLIED. 

FN19  THE RULING WAS MADE IN 1943 AND WAS CONFIRMED IN 1945.  THE
BANGOR AND SEABOARD SHIPMENTS WERE MADE IN 1944. 

FN20  A PRIVATE SHIPPER MAY NOT INVOKE THE DEFENSE OF ESTOPPEL TO
PREVENT A CARRIER FROM COLLECTING A HIGHER APPLICABLE TARIFF RATE THAN
THAT WHICH MAY HAVE BEEN ACTUALLY QUOTED BY THE CARRIER.  THIS RESULTS
FROM SEC. 6(7) OF THE INTERSTATE COMMERCE ACT, 24 STAT. 380, AS
AMENDED, 49 U.S.C. SEC. 6(7), FORBIDDING DEPARTURES FROM THE PUBLISHED
TARIFF.  SEE PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS R. CO. V.
FINK, 250 U.S. 577, 583.  THE SAME CONSIDERATIONS DO NOT OBTAIN WHEN
THE GOVERNMENT IS THE SHIPPER, IN VIEW OF SEC. 22 OF THE ACT, 24 STAT.
387, AS AMENDED, 49 U.S.C. SEC. 22, PROVIDING THAT "NOTHING IN THIS
CHAPTER SHALL PREVENT THE CARRIAGE, STORAGE, OR HANDLING OF PROPERTY
FREE OR AT REDUCED RATES FOR THE UNITED STATES." 

MR. JUSTICE DOUGLAS DISSENTS FROM A REFERENCE OF THESE MATTERS TO THE
INTERSTATE COMMERCE COMMISSION, SINCE HE IS OF THE VIEW THAT THE
PRINCIPLES OF GREAT NORTHERN R. CO. V. MERCHANTS ELEVATOR CO., 259 U.S.
285, ARE APPLICABLE HERE. 

MR. JUSTICE REED AND MR. JUSTICE BRENNAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :





UNITED STATES V. CHESAPEAKE & OHIO RAILWAY CO. 352 U.S. 77 


NO. 19.  ARGUED OCTOBER 15, 1956 - DECIDED DECEMBER 3, 1956 - 224 F.2D
443, REVERSED AND REMANDED. 


THE RESPONDENT RAILROAD SUED THE UNITED STATES IN THE DISTRICT COURT
UNDER THE TUCKER ACT TO RECOVER A SUM ALLEGEDLY DUE FOR CERTAIN
TRANSPORTATION OF MILITARY SUPPLIES, THE UNITED STATES HAVING PAID THE
EXPORT RATE RATHER THAN THE HIGHER DOMESTIC RATE.  THE GOODS HAD BEEN
SHIPPED VIA RESPONDENT RAILROAD TO AN ATLANTIC PORT FOR EXPORT; THAT
EXPORTATION HAD BEEN FRUSTRATED BY WARTIME DEVELOPMENTS; THEY WERE
STORED DOMESTICALLY; AND LATER SHIPPED FROM A PACIFIC PORT TO A
DIFFERENT FOREIGN COUNTRY.  THE DISTRICT COURT GAVE JUDGMENT FOR THE
RESPONDENT, AND THE COURT OF APPEALS AFFIRMED.  ON REVIEW HERE, HELD: 

1.  ON THE RECORD IN THIS CASE, THIS COURT CANNOT SAY WHETHER THE
ISSUE OF TARIFF CONSTRUCTION SHOULD HAVE BEEN REFERRED TO THE
INTERSTATE COMMERCE COMMISSION.  PP. 80-81. 

2.  THE QUESTION OF TARIFF CONSTRUCTION SHOULD BE DETERMINED BY THE
COURT OF APPEALS UPON A FULL RECORD, WHICH WOULD INCLUDE CONSIDERATION
OF THE FACTORS SHOWN BY THE RECORD IN THE EARLIER CASE ON WHICH IT
RELIED, BUT WHICH IS NOT BEFORE THIS COURT.  P. 81. 

3.  REFERRAL TO THE INTERSTATE COMMERCE COMMISSION OF THE QUESTION OF
TARIFF CONSTRUCTION IS NOT BARRED BY THE TWO-YEAR LIMITATION CONTAINED
IN SEC. 16(3) OF THE INTERSTATE COMMERCE ACT.  UNITED STATES V. WESTERN
PACIFIC R. CO., ANTE, P. 59.  P. 81. 

UNITED STATES V. CHESAPEAKE & OHIO RAILWAY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS QUESTIONS SIMILAR TO THOSE INVOLVED IN UNITED
STATES V. WESTERN PACIFIC R. CO., ANTE, P. 59, DECIDED TODAY. 

IN 1941 AND 1942 THE GOVERNMENT SHIPPED FROM PONTIAC, MICHIGAN, TO
NEWPORT NEWS, VIRGINIA, OVER THE RESPONDENT'S LINES, VARIOUS MILITARY
SUPPLIES DESTINED FOR CHINA, VIA THE PORT OF RANGOON, BURMA.  THIS
INTENDED EXPORTATION WAS FRUSTRATED BY THE FALL OF RANGOON TO JAPANESE
MILITARY FORCES ON MARCH 8, 1942.  THE GOVERNMENT THEREFORE TOOK
POSSESSION OF THE SHIPMENTS AT NEWPORT NEWS, RESHIPPED THEM ABOUT THREE
MONTHS LATER TO STORAGE CENTERS IN PENNSYLVANIA AND NEW JERSEY, AND
MORE THAN A YEAR LATER AGAIN RESHIPPED SOME OF THE GOODS TO VARIOUS
POINTS ON THE PACIFIC COAST, WHENCE THEY WERE EXPORTED TO CALCUTTA,
INDIA.  HAD THE ORIGINAL PURPOSE OF A SHIPMENT TO CHINA BEEN
ACCOMPLISHED, THE EXPORT RATE PROVIDED IN ITEM 23030 OF TARIFF NO. 218
M (FN1) WOULD HAVE APPLIED TO THE TRANSPORTATION BETWEEN PONTIAC AND
NEWPORT NEWS.  HOWEVER, WHEN THAT SHIPMENT WAS FRUSTRATED, THE
RESPONDENT BILLED THE GOVERNMENT AT THE HIGHER DOMESTIC RATE.  (FN2)
THE GOVERNMENT PAID THESE BILLS AS RENDERED, BUT SUBSEQUENTLY, ON POST
AUDIT BY THE GENERAL ACCOUNTING OFFICE, READJUSTED THE CHARGES TO THE
LOWER EXPORT RATE, DEDUCTING THE DIFFERENCE FROM SUBSEQUENT BILLS OF
THE CARRIER FOR OTHER TRANSPORTATION SERVICES.  (FN3)  THEREAFTER THE
RESPONDENT SUED THE UNITED STATES IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA UNDER THE TUCKER ACT (FN4) TO RECOVER THE AMOUNT
OF THESE DEDUCTIONS.  THE DISTRICT COURT GAVE JUDGMENT FOR THE
RESPONDENT, (FN5) THE COURT OF APPEALS AFFIRMED, (FN6) AND WE GRANTED
CERTIORARI.  (FN7) 

THE COURT OF APPEALS, FOLLOWING ITS EARLIER DECISION IN UNITED STATES
V. CHESAPEAKE & OHIO R. CO., 215 F.2D 213, HELD "THAT THE INTENTION TO
EXPORT TO CHINA WAS ABANDONED AND THAT THE MOVEMENT WHICH BEGAN AT
PONTIAC, MICHIGAN, AS AN EXPORT WAS CONVERTED BY THE SHIPPER INTO A
DOMESTIC SHIPMENT"; HENCE THE DOMESTIC RATE APPLIED.  IT FURTHER HELD
THAT THE DISTRICT COURT HAD PROPERLY DENIED THE GOVERNMENT'S REQUEST
FOR A REFERRAL TO THE INTERSTATE COMMERCE COMMISSION OF THE QUESTION
WHETHER THE DOMESTIC RATE, IF APPLIED TO THESE SHIPMENTS, WOULD BE
REASONABLE.  AS TO THIS THE COURT OF APPEALS SAID THAT THE "QUESTION
WAS NOT THE REASONABLENESS OF RATES, WHICH EVERYONE CONCEDED TO BE
REASONABLE, BUT WHICH RATE WAS APPLICABLE TO THE SHIPMENT UNDER THE
CIRCUMSTANCES OF THE CASE, A QUESTION WHICH THE COURT WAS COMPETENT TO
DECIDE."  THEREFORE, IT CONCLUDED THAT THERE WERE NO "ADMINISTRATIVE
QUESTIONS" FOR THE COMMISSION TO DETERMINE.  FURTHER, WITHOUT
QUESTIONING THE TIMELINESS OF THE RESPONDENT'S SUIT UNDER THE TUCKER
ACT, (FN8) THE COURT OF APPEALS HELD THAT IN ANY EVENT REFERRAL TO THE
COMMISSION OF THE QUESTION OF THE REASONABLENESS OF THE DOMESTIC TARIFF
AS APPLIED TO THESE SHIPMENTS WAS BARRED BY THE TWO-YEAR STATUTE OF
LIMITATIONS OF THE INTERSTATE COMMERCE ACT.  (FN9) 

UNLIKE THE COURT OF CLAIMS IN UNITED STATES V. WESTERN PACIFIC R.
CO., SUPRA, THE COURT OF APPEALS, CORRECTLY WE THINK, REGARDED THE
QUESTIONS OF WHETHER THE DOMESTIC TARIFF APPLIED TO THESE SHIPMENTS,
AND WHETHER IT WAS REASONABLE IF SO APPLIED, AS SIMPLY TWO WAYS OF
STATING THE SAME UNDERLYING PROBLEM.  HENCE WE FACE THE SAME QUESTION
AS THE ONE WE HAVE DEALT WITH IN THE WESTERN PACIFIC CASE, SUPRA,
NAMELY:  DOES THE ISSUE OF TARIFF CONSTRUCTION, WHICH THE COURT OF
APPEALS REGARDED AS ONE FOR THE COURT, INVOLVE SUCH ACQUAINTANCE WITH
RATE-MAKING AND TRANSPORTATION FACTORS AS TO MAKE THE ISSUE INITIALLY
ONE FOR THE INTERSTATE COMMERCE COMMISSION, UNDER THE DOCTRINE OF
PRIMARY JURISDICTION?  IN THIS INSTANCE WE CANNOT SAY POSITIVELY
WHETHER OR NOT THERE SHOULD HAVE BEEN A REFERRAL TO THE COMMISSION. 
THE GOVERNMENT, TREATING THE ISSUES OF "CONSTRUCTION" AND
"REASONABLENESS" AS SEPARABLE, DID NOT QUESTION THE COURT OF APPEALS'
HOLDING THAT THE DOMESTIC TARIFF APPLIED, BUT ARGUED ONLY THAT THE
TARIFF WAS UNREASONABLE AS APPLIED TO THESE SHIPMENTS.  THE PARTIES,
THEREFORE, HAVE NOT BRIEFED OR ARGUED THE FACTORS MAKING FOR OR AGAINST
THE APPLICATION OF THE DOMESTIC RATHER THAN THE EXPORT TARIFF. 
CONSEQUENTLY, WE DO NOT KNOW WHAT KINDS OF FACTORS ARE INVOLVED, AND WE
THEREFORE CANNOT SAY ON THIS RECORD WHETHER THE ISSUE OF TARIFF
CONSTRUCTION SHOULD HAVE BEEN REFERRED TO THE COMMISSION.  WE THINK
THIS QUESTION SHOULD BE DETERMINED BY THE COURT OF APPEALS UPON A FULL
RECORD, WHICH WOULD NO DOUBT INCLUDE CONSIDERATION OF THE FACTORS SHOWN
BY THE RECORD IN THE EARLIER CASE WHICH IT FOLLOWED HERE, (FN10) AND
WHICH IS NOT BEFORE US.  (FN11)  FOR THE REASONS GIVEN IN OUR OPINION
IN THE WESTERN PACIFIC CASE, SUPRA, WE HOLD THAT REFERRAL TO THE
COMMISSION WOULD NOT BE BARRED BY THE SEC. 16(3) STATUTE OF
LIMITATIONS. 

WE SHALL THEREFORE REVERSE THE JUDGMENT BELOW AND REMAND THE CASE TO
THE COURT OF APPEALS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION AND WITH OUR OPINION IN UNITED STATES V. WESTERN PACIFIC R.
CO., SUPRA, DECIDED THIS DAY.  IT IS SO ORDERED. 

FN1  "APPLICATION OF EXPORT RATES TO NORTH ATLANTIC SEABOARD PORTS OF
EXPORT. 

"THE RATES NAMED IN THIS TARIFF, OR AS SAME MAY BE AMENDED, AND
DESIGNATED AS 'EXPORT RATES' WILL APPLY ONLY ON TRAFFIC WHICH DOES NOT
LEAVE THE POSSESSION OF THE CARRIER, DELIVERED BY THE ATLANTIC PORT
TERMINAL CARRIERS DIRECT TO THE STEAMER OR STEAMER'S DOCK UPON ARRIVAL
AT THE PORT OR AFTER STORAGE OR TRANSIT HAS BEEN ACCORDED BY THE PORT
CARRIER AT THE PORT UNDER TARIFFS WHICH PERMIT THE APPLICATION OF THE
EXPORT RATES, AND ALSO ON TRAFFIC DELIVERED TO THE PARTY ENTITLED TO
RECEIVE IT AT THE CARRIER'S SEABOARD STATIONS TO WHICH EXPORT RATES
APPLY, WHICH TRAFFIC IS HANDLED DIRECT FROM CARRIERS' STATIONS TO
STEAMSHIP DOCKS AND ON WHICH REQUIRED PROOF OF EXPORTATION IS GIVEN. 
(C.F.A. INF.  8179, 13607.)" 

FN2  CENTRAL FREIGHT ASSOCIATION, FREIGHT TARIFF NO. 490-A. 

FN3 THIS PROCEDURE WAS AUTHORIZED BY SEC. 322 OF THE TRANSPORTATION
ACT OF SEPTEMBER 18, 1940, 54 STAT. 955, 49 U.S.C. SEC. 66. 

FN4  28 U.S.C. SEC. 1346(A)(2). 

FN5  THE DISTRICT COURT FILED NO WRITTEN OPINION.  IT RENDERED A
SHORT ORAL OPINION WHICH APPEARS AT PAGES 40-41 OF THE RECORD. 

FN6  224 F.2D 443. 

FN7  350 U.S. 953. 

FN8  THE RESPONDENT'S CAUSE OF ACTION ACCRUED NO LATER THAN THE
SUMMER OF 1946, WHEN THE GOVERNMENT DEDUCTED THE DIFFERENCE BETWEEN THE
DOMESTIC RATE AND THE EXPORT RATE.  THE RESPONDENT FILED ITS SUIT ON
MARCH 10, 1952.  ON THE ASSUMPTION THAT THE TUCKER ACT APPLIES (SEE OUR
OPINION IN THE WESTERN PACIFIC CASE, ANTE, P. 59, AT PP. 70-71), THE
SUIT WAS TIMELY BROUGHT. 

FN9  24 STAT. 384, AS AMENDED, 49 U.S.C. SEC. 16(3). 

FN10  215 F.2D 213. 

FN11  THE GOVERNMENT SUGGESTS THAT IN COMPARABLE SITUATIONS THE
COMMISSION HAS DECIDED THAT THE EXPORT RATE SHOULD APPLY.  SEE C.B. FOX
CO. V. GULF, MOBILE & OHIO R. CO., 246 I.C.C. 561; RIVER PETROLEUM
CORP. V. YAZOO & M.V.R. CO., 258 I.C.C. 1; MID-CONTINENT PETROLEUM
CORP. V. ILLINOIS CENTRAL R. CO., 258 I.C.C. 422; PRODUCTS-FROM-SWEDEN,
INC. V. LEHIGH VALLEY R. CO., 263 I.C.C. 760.   RESPONDENT, IN TURN,
CITES CALIFORNIA TEXAS OIL CO. V. BESSEMER & LAKE ERIE R. CO., 264
I.C.C. 147; PACIFIC CHEMICAL & FERTILIZER CO. V. PENNSYLVANIA R. CO.,
268 I.C.C. 468; AND WAR MATERIALS REPARATIONS CASES, 294 I.C.C. 5.  WE
EXPRESS NO OPINION AS TO THE EFFECT OF THESE DECISIONS, FOR WE THINK
THEIR RELEVANCY TO THE SITUATION AT HAND SHOULD BE LEFT TO THE COURT OF
APPEALS IN THE FIRST INSTANCE.  SEE OUR OPINION IN THE WESTERN PACIFIC
CASE, ANTE, P. 59. 

MR. JUSTICE DOUGLAS DISSENTS FROM A REFERENCE OF THESE MATTERS TO THE
INTERSTATE COMMERCE COMMISSION, SINCE HE IS OF THE VIEW THAT THE
PRINCIPLES OF GREAT NORTHERN R. CO. V. MERCHANTS ELEVATOR CO., 259 U.S.
285, ARE APPLICABLE HERE. 

MR. JUSTICE REED AND MR. JUSTICE BRENNAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :





PUTNAM V. COMMISSIONER OF INTERNAL REVENUE 352 U.S. 82 


NO. 25.  ARGUED OCTOBER 17, 1956 - DECIDED DECEMBER 3, 1956 - 224 F.2D
947, AFFIRMED. 


IN A BUSINESS VENTURE NOT CONNECTED WITH HIS LAW PRACTICE, PETITIONER,
A LAWYER, ORGANIZED A CORPORATION, SUPPLIED ITS CAPITAL, AND FINANCED
ITS OPERATIONS THROUGH ADVANCES AND GUARANTIES OF ITS DEBTS.  HE WOUND
UP THE CORPORATION'S AFFAIRS AND LIQUIDATED ITS ASSETS BUT DID NOT
TERMINATE ITS CORPORATE EXISTENCE.  ITS ASSETS WERE INSUFFICIENT TO PAY
ITS DEBTS, AND PETITIONER PAID $9,005 OF ITS DEBTS IN DISCHARGE OF HIS
OBLIGATION AS GUARANTOR.  HELD:  IN COMPUTING PETITIONER'S INCOME TAX,
THIS $9,005 LOSS WAS A NONBUSINESS BAD DEBT LOSS TO BE GIVEN SHORT-TERM
CAPITAL LOSS TREATMENT UNDER SEC. 23(K)(4) OF THE INTERNAL REVENUE CODE
OF 1939; AND IT WAS NOT FULLY DEDUCTIBLE UNDER SEC. 23(E)(2) AS A LOSS
"INCURRED IN A TRANSACTION  ...  FOR PROFIT, THOUGH NOT CONNECTED WITH
HIS TRADE OR BUSINESS."  PP. 83-93. 

1.  THE LOSS SUSTAINED BY A GUARANTOR UNABLE TO RECOVER FROM THE
DEBTOR IS BY ITS VERY NATURE A LOSS FROM A BAD DEBT TO WHICH THE
GUARANTOR BECOMES SUBROGATED UPON DISCHARGING HIS LIABILITY AS
GUARANTOR.  PP. 85-86. 

2.  THERE IS NO JUSTIFICATION FOR CONSIDERATION OF PETITIONER'S LOSS
UNDER SEC. 23(E)(2) AS AN ORDINARY NONBUSINESS LOSS SUSTAINED IN A
TRANSACTION ENTERED INTO FOR PROFIT.  AS A LOSS ATTRIBUTABLE TO A BAD
DEBT, IT MUST BE REGARDED AS A BAD DEBT LOSS, DEDUCTIBLE AS SUCH OR NOT
AT ALL.  SPRING CITY CO. V. COMMISSIONER, 292 U.S. 182.  PP. 87-88. 

3.  POLLAK V. COMMISSIONER, 209 F.2D 57, EDWARDS V. ALLEN, 216 F.2D
794, AND CUDLIP V. COMMISSIONER, 220 F.2D 565, TURN UPON ERRONEOUS
PREMISES.  PP. 88-90. 

(A)  A GUARANTOR WHO PAYS A CREDITOR IN DISCHARGE OF HIS OBLIGATION
AS GUARANTOR OF THE DEBT OF AN INSOLVENT DOES NOT VOLUNTARILY ACQUIRE A
DEBT KNOWN BY HIM TO BE WORTHLESS; HE INVOLUNTARILY SUFFERS A LOSS ON A
BAD DEBT.  P. 88. 

(B)  A WORTHLESS NEW OBLIGATION DOES NOT ARISE IN FAVOR OF A
GUARANTOR UPON HIS PAYMENT TO A CREDITOR OF AN INSOLVENT; HE IS
SUBROGATED TO AN EXISTING DEBT WHICH "BECOMES" WORTHLESS IN HIS HANDS,
WITHIN THE MEANING OF SEC. 23(K).  PP. 88-89. 

(C)  ECKERT V. BURNET, 283 U.S. 140, DISTINGUISHED.  PP. 89-90. 

4.  APPLICATION OF SEC. 23(K)(4) TO THE LOSS HERE INVOLVED IS IN
ACCORDANCE WITH THE OBJECTIVES SOUGHT TO BE ACHIEVED BY CONGRESS IN
PROVIDING SHORT-TERM CAPITAL LOSS TREATMENT FOR NONBUSINESS BAD DEBTS. 
PP. 90-93. 

PUTNAM ET UX. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, MAX PUTNAM, IN DECEMBER 1948, PAID $9,005.21 TO A DES
MOINES, IOWA, BANK IN DISCHARGE OF HIS OBLIGATION AS GUARANTOR OF THE
NOTES OF WHITEHOUSE PUBLISHING COMPANY.  THAT CORPORATION STILL HAD A
CORPORATE EXISTENCE AT THE TIME OF THE PAYMENT BUT HAD CEASED DOING
BUSINESS AND HAD DISPOSED OF ITS ASSETS EIGHTEEN MONTHS EARLIER.  THE
QUESTION FOR DECISION IS WHETHER, IN THE JOINT INCOME TAX RETURN FILED
BY PUTNAM AND HIS WIFE FOR 1948, PUTNAM'S LOSS IS FULLY DEDUCTIBLE AS A
LOSS "INCURRED IN A TRANSACTION  ...  FOR PROFIT, THOUGH NOT CONNECTED
WITH HIS TRADE OR BUSINESS" WITHIN THE MEANING OF SEC. 23(E)(2) OF THE
INTERNAL REVENUE CODE OF 1939, (FN1) OR WHETHER IT IS A NONBUSINESS BAD
DEBT WITHIN THE MEANING OF SEC. 23(K)(4) OF THE CODE, (FN2) AND
THEREFORE DEDUCTIBLE ONLY AS A SHORT-TERM CAPITAL LOSS. 

THE COMMISSIONER DETERMINED THAT THE LOSS WAS A NONBUSINESS BAD DEBT
TO BE GIVEN SHORT-TERM CAPITAL LOSS TREATMENT.  THE TAX COURT (FN3) AND
THE COURT OF APPEALS (FN4) FOR THE EIGHTH CIRCUIT SUSTAINED HIS
DETERMINATION.  BECAUSE OF AN ALLEGED CONFLICT WITH DECISIONS OF THE
COURTS OF APPEALS OF OTHER CIRCUITS, (FN5) WE GRANTED CERTIORARI. 
(FN6) 

PUTNAM IS A DES MOINES LAWYER WHO IN 1945, IN A VENTURE NOT CONNECTED
WITH HIS LAW PRACTICE, (FN7) ORGANIZED WHITEHOUSE PUBLISHING COMPANY
WITH TWO OTHERS, A NEWSPAPERMAN AND A LABOR LEADER, TO PUBLISH A LABOR
NEWSPAPER.  EACH INCORPORATOR RECEIVED ONE-THIRD OF THE ISSUED CAPITAL
STOCK, BUT PUTNAM SUPPLIED THE PROPERTY AND CASH WITH WHICH THE COMPANY
STARTED BUSINESS.  HE ALSO FINANCED ITS OPERATIONS, FOR THE SHORT TIME
IT WAS IN BUSINESS, THROUGH ADVANCES AND GUARANTEES OF PAYMENT OF
SALARIES AND DEBTS.  JUST BEFORE THE VENTURE WAS ABANDONED, PUTNAM
ACQUIRED THE SHARES HELD BY HIS FELLOW STOCKHOLDERS AND IN JULY 1947,
AS SOLE STOCKHOLDER, WOUND UP ITS AFFAIRS AND LIQUIDATED ITS ASSETS. 
THE PROCEEDS OF SALE WERE INSUFFICIENT TO PAY THE FULL AMOUNT DUE TO
THE DES MOINES BANK ON TWO NOTES GIVEN BY THE CORPORATION AND
GUARANTEED BY PUTNAM FOR MONEYS BORROWED IN AUGUST 1946 AND MARCH
1947. 

THE FAMILIAR RULE IS THAT, INSTANTER UPON THE PAYMENT BY THE
GUARANTOR OF THE DEBT, THE DEBTOR'S OBLIGATION TO THE CREDITOR BECOMES
AN OBLIGATION TO THE GUARANTOR, NOT A NEW DEBT, BUT, BY SUBROGATION,
THE RESULT OF THE SHIFT OF THE ORIGINAL DEBT FROM THE CREDITOR TO THE
GUARANTOR WHO STEPS INTO THE CREDITOR'S SHOES.  (FN8)  THUS, THE LOSS
SUSTAINED BY THE GUARANTOR UNABLE TO RECOVER FROM THE DEBTOR IS BY ITS
VERY NATURE A LOSS FROM THE WORTHLESSNESS OF A DEBT.  THIS HAS BEEN
CONSISTENTLY RECOGNIZED IN THE ADMINISTRATIVE AND THE JUDICIAL
CONSTRUCTION OF THE INTERNAL REVENUE LAWS (FN9) WHICH, UNTIL THE
DECISIONS OF THE COURTS OF APPEALS IN CONFLICT WITH THE DECISION BELOW,
HAVE ALWAYS TREATED GUARANTORS' LOSSES AS BAD DEBT LOSSES.  (FN10) THE
CONGRESS RECENTLY CONFIRMED THIS TREATMENT IN THE INTERNAL REVENUE CODE
OF 1954 BY PROVIDING THAT A PAYMENT BY A NONCORPORATE TAXPAYER IN
DISCHARGE OF HIS OBLIGATION AS GUARANTOR OF CERTAIN NONCORPORATE
OBLIGATIONS "SHALL BE TREATED AS A DEBT."  (FN11) 

THERE IS, THEN, NO JUSTIFICATION OR BASIS FOR CONSIDERATION OF
PUTNAM'S LOSS UNDER THE GENERAL LOSS PROVISIONS OF SEC. 23(E)(2), I.E.,
AS AN ORDINARY NONBUSINESS LOSS SUSTAINED IN A TRANSACTION ENTERED INTO
FOR PROFIT.  CONGRESS HAS LEGISLATED SPECIALLY IN THE MATTER OF
DEDUCTIONS OF NONBUSINESS BAD DEBT LOSSES, I.E., SUCH A LOSS IS
DEDUCTIBLE ONLY AS A SHORT-TERM CAPITAL LOSS BY VIRTUE OF THE SPECIAL
LIMITATION PROVISIONS CONTAINED IN SEC. 23(K)(4).  THE DECISION OF THIS
COURT IN SPRING CITY CO. V. COMMISSIONER, 292 U.S. 182, IS APPOSITE AND
CONTROLLING.  THERE IT WAS HELD THAT A DEBT EXCLUDED FROM DEDUCTION
UNDER SEC. 234(A)(5) OF THE REVENUE ACT OF 1918 WAS NOT TO BE REGARDED
AS A LOSS DEDUCTIBLE UNDER SEC. 234(A)(4).  CHIEF JUSTICE HUGHES SAID
FOR THE COURT: 

"PETITIONER ALSO CLAIMS THE RIGHT OF DEDUCTION UNDER SEC. 234(A)(4)
OF THE ACT OF 1918 PROVIDING FOR THE DEDUCTION OF 'LOSSES SUSTAINED
DURING THE TAXABLE YEAR AND NOT COMPENSATED FOR BY INSURANCE OR
OTHERWISE.'  WE AGREE WITH THE DECISION BELOW THAT THIS SUBDIVISION AND
THE FOLLOWING SUBDIVISION (5) RELATING TO DEBTS ARE MUTUALLY
EXCLUSIVE.  WE SO ASSUMED, WITHOUT DECIDING THE POINT, IN LEWELLYN V.
ELECTRIC REDUCTION CO., 275 U.S. 243, 246.  THE MAKING OF THE SPECIFIC
PROVISION AS TO DEBTS INDICATES THAT THESE WERE TO BE CONSIDERED AS A
SPECIAL CLASS AND THAT LOSSES ON DEBTS WERE NOT TO BE REGARDED AS
FALLING UNDER THE PRECEDING GENERAL PROVISION.  WHAT WAS EXCLUDED FROM
DEDUCTION UNDER SUBDIVISION (5) CANNOT BE REGARDED AS ALLOWED UNDER
SUBDIVISION (4).  IF SUBDIVISION (4) COULD BE CONSIDERED AS AMBIGUOUS
IN THIS RESPECT, THE ADMINISTRATIVE CONSTRUCTION WHICH HAD BEEN
FOLLOWED FROM THE ENACTMENT OF THE STATUTE - THAT SUBDIVISION (4) DID
NOT REFER TO DEBTS - WOULD BE ENTITLED TO GREAT WEIGHT.  WE SEE NO
REASON FOR DISTURBING THAT CONSTRUCTION."  292 U.S., AT 189. 

HERE ALSO THE STATUTORY SCHEME IS TO BE UNDERSTOOD AS MEANING THAT A
LOSS ATTRIBUTABLE TO THE WORTHLESSNESS OF A DEBT SHALL BE REGARDED AS A
BAD DEBT LOSS, DEDUCTIBLE AS SUCH OR NOT AT ALL. 

THE DECISIONS OF THE COURTS OF APPEALS IN CONFLICT WITH THE DECISION
BELOW TURN UPON ERRONEOUS PREMISES.  (FN12)  IT IS SAID THAT THE
GUARANTOR TAXPAYER WHO INVOLUNTARILY ACQUIRES A WORTHLESS DEBT IS IN A
POSITION NO DIFFERENT FROM THE TAXPAYER WHO VOLUNTARILY ACQUIRES A DEBT
KNOWN BY HIM TO BE WORTHLESS.  THE LATTER IS TREATED AS HAVING ACQUIRED
NO VALID DEBT AT ALL.  (FN13)  THE SITUATIONS ARE NOT ANALOGOUS OR
COMPARABLE.  THE TAXPAYER WHO VOLUNTARILY BUYS A DEBT WITH KNOWLEDGE
THAT HE WILL NOT BE PAID IS RIGHTLY CONSIDERED NOT TO HAVE ACQUIRED A
DEBT BUT TO HAVE MADE A GRATUITY.  IN CONTRAST THE GUARANTOR PAYS THE
CREDITOR IN COMPLIANCE WITH THE OBLIGATION RAISED BY THE LAW FROM HIS
CONTRACT OF GUARANTY.  HIS LOSS ARISES NOT BECAUSE HE IS MAKING A GIFT
TO THE DEBTOR BUT BECAUSE THE LATTER IS UNABLE TO REIMBURSE HIM. 

NEXT IT IS ASSUMED, AT LEAST IN THE ALLEN CASE, THAT A NEW OBLIGATION
ARISES IN FAVOR OF THE GUARANTOR UPON HIS PAYMENT TO THE CREDITOR. 
FROM THIS PREMISE IT IS ARGUED THAT SUCH A DEBT CANNOT "BECOME"
WORTHLESS BUT IS WORTHLESS FROM ITS ORIGIN, AND SO OUTSIDE THE SCOPE OF
SEC. 23(K).  THIS MISCONCEIVES THE BASIS OF THE DOCTRINE OF
SUBROGATION, APART FROM THE FACT THAT, IF IT WERE TRUE THAT THE DEBT
DID NOT "BECOME" WORTHLESS, THE DEBT NEVERTHELESS WOULD NOT BE REGARDED
AS AN ORDINARY LOSS UNDER SEC. 23(E).  SPRING CITY CO. V. COMMISSIONER,
SUPRA.  UNDER THE DOCTRINE OF SUBROGATION, PAYMENT BY THE GUARANTOR, AS
WE HAVE SEEN, IS TREATED NOT AS CREATING A NEW DEBT AND EXTINGUISHING
THE ORIGINAL DEBT, BUT AS PRESERVING THE ORIGINAL DEBT AND MERELY
SUBSTITUTING THE GUARANTOR FOR THE CREDITOR.  THE REALITY OF THE
SITUATION IS THAT THE DEBT IS AN ASSET OF FULL VALUE IN THE CREDITOR'S
HANDS BECAUSE BACKED BY THE GUARANTY.  THE DEBTOR IS USUALLY NOT ABLE
TO REIMBURSE THE GUARANTOR AND IN SUCH CASES THAT VALUE IS LOST AT THE
INSTANT THAT THE GUARANTOR PAYS THE CREDITOR.  BUT THAT THIS INSTANT IS
ALSO THE INSTANT WHEN THE GUARANTOR ACQUIRES THE DEBT CANNOT OBSCURE
THE FACT THAT THE DEBT "BECOMES" WORTHLESS IN HIS HANDS. 

FINALLY, THE COURTS OF APPEALS FOUND SUPPORT FOR THEIR VIEW IN THE
FOLLOWING LANGUAGE TAKEN FROM THE OPINION OF THIS COURT IN ECKERT V.
BURNET, 283 U.S. 140: 

"THE PETITIONER CLAIMS THE RIGHT TO DEDUCT HALF THAT SUM AS A DEBT
'ASCERTAINED TO BE WORTHLESS AND CHARGED OFF WITHIN THE TAXABLE YEAR,'
UNDER THE REVENUE ACT OF 1926, C. 27, SEC. 214(A)(7); 44 STAT. 9, 27. 

"IT SEEMS TO US THAT THE CIRCUIT COURT OF APPEALS SUFFICIENTLY
ANSWERED THIS CONTENTION BY REMARKING THAT THE DEBT WAS WORTHLESS WHEN
ACQUIRED.  THERE WAS NOTHING TO CHARGE OFF.  THE PETITIONER TREATS THE
CASE AS ONE OF AN INVESTMENT THAT LATER TURNS OUT TO BE BAD.  BUT IN
FACT IT WAS THE SATISFACTION OF AN EXISTING OBLIGATION OF THE
PETITIONER, HAVING, IT MAY BE, THE CONSEQUENCE OF A MOMENTARY TRANSFER
OF THE OLD NOTES TO THE PETITIONER IN ORDER THAT THEY MIGHT BE
DESTROYED.  IT IS VERY PLAIN WE THINK THAT THE WORDS OF THE STATUTE
CANNOT BE TAKEN TO INCLUDE A CASE OF THAT KIND."  283 U.S., AT 141. 

THAT STATEMENT DID NOT IMPLY A DETERMINATION BY THIS COURT THAT THE
GUARANTOR'S LOSS WAS NOT TO BE TREATED AS A BAD DEBT.  (FN14)  THIS
COURT WAS NOT FACED WITH THE QUESTION IN ECKERT.  THE POINT DECIDED BY
THE CASE WAS THAT A GUARANTOR REPORTING ON A CASH BASIS AND DISCHARGING
HIS GUARANTY, NOT BY A CASH PAYMENT, BUT BY GIVING THE CREDITOR HIS
PROMISSORY NOTE PAYABLE IN A SUBSEQUENT YEAR, WAS NOT ENTITLED TO A BAD
DEBT LOSS DEDUCTION IN THE YEAR IN WHICH HE GAVE THE NOTE.  THE TRUE
SIGNIFICANCE OF THE QUOTED LANGUAGE IS THAT, ALTHOUGH "THE DEBT WAS
WORTHLESS WHEN ACQUIRED," IT COULD NOT BE "CHARGED OFF" WITHIN THE
TAXABLE YEAR AS THE PROMISSORY NOTE GIVEN FOR ITS PAYMENT WAS NOT PAID
OR PAYABLE WITHIN THAT YEAR.  (FN15) 

THE OBJECTIVES SOUGHT TO BE ACHIEVED BY THE CONGRESS IN PROVIDING
SHORT-TERM CAPITAL LOSS TREATMENT FOR NONBUSINESS BAD DEBTS ARE ALSO
PERSUASIVE THAT SEC. 23(K)(4) APPLIES TO A GUARANTOR'S NONBUSINESS DEBT
LOSSES.  THE SECTION WAS PART OF THE COMPREHENSIVE TAX PROGRAM ENACTED
BY THE REVENUE ACT OF 1942 TO INCREASE THE NATIONAL REVENUE TO FURTHER
THE PROSECUTION OF THE GREAT WAR IN WHICH WE WERE THEN ENGAGED.  (FN16)
IT WAS ALSO A MEANS FOR MINIMIZING THE REVENUE LOSSES ATTRIBUTABLE TO
THE FRAUDULENT PRACTICES OF TAXPAYERS WHO MADE TO RELATIVES AND FRIENDS
GIFTS DISGUISED AS LOANS.  (FN17)  EQUALLY, HOWEVER, THE PLAN WAS
SUITED TO PUT NONBUSINESS INVESTMENTS IN THE FORM OF LOANS ON A FOOTING
WITH OTHER NONBUSINESS INVESTMENTS.  THE PROPOSAL ORIGINATED WITH THE
TREASURY DEPARTMENT, WHOSE SPOKESMAN CHAMPIONED IT AS A MEANS "TO
INSURE A FAIRER REFLECTION OF TAXABLE INCOME,"  (FN18) AND THE HOUSE
WAYS AND MEANS COMMITTEE REPORT STATED THAT THE OBJECTIVE WAS "TO
REMOVE EXISTING INEQUITIES AND TO IMPROVE THE PROCEDURE THROUGH WHICH
BAD-DEBT DEDUCTIONS ARE TAKEN."  (FN19)  WE MAY CONSIDER PUTNAM'S CASE
IN THE LIGHT OF THESE REVEALED PURPOSES.  HIS VENTURE INTO THE
PUBLISHING FIELD WAS AN INVESTMENT APART FROM HIS LAW PRACTICE.  THE
LOSS HE SUSTAINED WHEN HIS STOCK BECAME WORTHLESS, AS WELL AS THE
LOSSES FROM THE WORTHLESSNESS OF THE LOANS HE MADE DIRECTLY TO THE
CORPORATION, WOULD RECEIVE CAPITAL LOSS TREATMENT; THE 1939 CODE SO
PROVIDES AS TO NONBUSINESS LOSSES BOTH FROM WORTHLESS STOCK INVESTMENTS
AND FROM LOANS TO A CORPORATION, WHETHER OR NOT THE LOANS ARE EVIDENCED
BY A SECURITY.  (FN20)  IT IS CLEARLY A "FAIRER REFLECTION" OF PUTNAM'S
1948 TAXABLE INCOME TO TREAT THE INSTANT LOSS SIMILARLY.  THERE IS NO
REAL OR ECONOMIC DIFFERENCE BETWEEN THE LOSS OF AN INVESTMENT MADE IN
THE FORM OF A DIRECT LOAN TO A CORPORATION AND ONE MADE INDIRECTLY IN
THE FORM OF A GUARANTEED BANK LOAN.  THE TAX CONSEQUENCES SHOULD IN ALL
REASON BE THE SAME, AND ARE ACCOMPLISHED BY SEC. 23(K)(4).  (FN21)  THE
JUDGMENT IS AFFIRMED. 

FN1  "SEC.  23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     *         *         *         *         * 

"(E)  LOSSES BY INDIVIDUALS.  - IN THE CASE OF AN INDIVIDUAL, LOSSES
SUSTAINED DURING THE TAXABLE YEAR AND NOT COMPENSATED FOR BY INSURANCE
OR OTHERWISE: 

     *         *         *         *         * 

"(2)  IF INCURRED IN ANY TRANSACTION ENTERED INTO FOR PROFIT, THOUGH
NOT CONNECTED WITH THE TRADE OR BUSINESS; ...  ."  53 STAT. 13, 26
U.S.C. SEC. 23(E)(2). 

FN2  "SEC.  23.  DEDUCTIONS FROM GROSS INCOME. 

     *    *         *         *         * 

"(K)  BAD DEBTS. 

 *         *         *         *         * 

"(4)  NON-BUSINESS DEBTS.  - IN THE CASE OF A TAXPAYER, OTHER THAN A
CORPORATION, IF A NON-BUSINESS DEBT BECOMES WORTHLESS WITHIN THE
TAXABLE YEAR, THE LOSS RESULTING THEREFROM SHALL BE CONSIDERED A LOSS
FROM THE SALE OR EXCHANGE, DURING THE TAXABLE YEAR, OF A CAPITAL ASSET
HELD FOR NOT MORE THAN 6 MONTHS.  THE TERM 'NON-BUSINESS DEBT' MEANS A
DEBT OTHER THAN A DEBT EVIDENCED BY A SECURITY AS DEFINED IN PARAGRAPH
(3) AND OTHER THAN A DEBT THE LOSS FROM THE WORTHLESSNESS OF WHICH IS
INCURRED IN THE TAXPAYER'S TRADE OR BUSINESS."  53 STAT. 13, 56 STAT.
820, 26 U.S.C. SEC. 23(K)(4). 

FN3  13 CCH TC MEM. DEC. 458. 

FN4  224 F.2D 947. 

FN5  POLLAK V. COMMISSIONER, 209 F.2D 57 (C.A. 3D CIR.); EDWARDS V.
ALLEN, 216 F.2D 794 (C.A. 5TH CIR.); CUDLIP V. COMMISSIONER, 220 F.2D
565 (C.A. 6TH CIR.). 

FN6  350 U.S. 964. 

FN7  PETITIONERS ABANDONED IN THIS COURT THE ALTERNATIVE CONTENTION
MADE BELOW THAT THE LOSS WAS DEDUCTIBLE IN FULL AS A BUSINESS BAD DEBT
UNDER SEC. 23(K)(1). 

FN8  UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234, 242; AETNA LIFE
INS. CO. V. MIDDLEPORT, 124 U.S. 534, 548; HOWELL V. COMMISSIONER, 69
F.2D 447, 450; SCOTT V. NORTON HARDWARE CO., 54 F.2D 1047; BRANDT,
SURETYSHIP AND GUARANTY (3D ED.), SEC. 324; 38 C.J.S., GUARANTY, SEC.
111; 24 AM. JUR., GUARANTY, SEC. 125.  IOWA FOLLOWS THIS RULE.  RANDELL
V. FELLERS, 218 IOWA 1005, 252 N.W. 787; AMERICAN SURETY CO. V. STATE
TRUST & SAV. BANK, 218 IOWA 1, 254 N.W. 338.  THERE IS NOT INVOLVED
HERE A QUESTION OF THE EFFECT OF STATE LAW UPON FEDERAL TAX TREATMENT
OF PUTNAM'S LOSS.  CF. WATSON V. COMMISSIONER, 345 U.S. 544; LYETH V.
HOEY, 305 U.S. 188; BURNET V. HARMEL, 287 U.S. 103.    FN9  THE BAD
DEBT DEDUCTION PROVISIONS OF EARLIER REVENUE ACTS WERE ENACTED IN SEC.
214(A)(7) OF THE REVENUE ACT OF 1921, 42 STAT. 239; SEC. 214(A)(7) OF
THE REVENUE ACT OF 1924, 43 STAT. 269; SEC. 214(A)(7) OF THE REVENUE
ACT OF 1926, 44 STAT. 26; SEC. 23(J) OF THE REVENUE ACT OF 1928, 45
STAT. 799; SEC. 23(J) OF THE REVENUE ACT OF 1932, 47 STAT. 179; SEC.
23(K) OF THE REVENUE ACT OF 1934, 48 STAT. 688; SEC. 23(K) OF THE
REVENUE ACT OF 1936, 49 STAT. 1658; SEC. 23(K) OF THE REVENUE ACT OF
1938, 52 STAT. 460; AND SEC. 23(K) OF THE INTERNAL REVENUE CODE OF
1939, 53 STAT. 12. 

FN10  SEE, E.G., 2 CUM. BULL.  137; 5 CUM. BULL.  146; III-1 CUM.
BULL.  158; III-1 CUM. BULL.  166; SHIMAN V. COMMISSIONER, 60 F.2D 65
(C.A.2D CIR.); HAMLEN V. WELCH, 116 F.2D 413 (C.A. 1ST CIR.); GIMBEL V.
COMMISSIONER, 36 B.T.A. 539; ROBERTS V. COMMISSIONER, 36 B.T.A. 549;
SHARP V. COMMISSIONER, 38 B.T.A. 166; HOVEY V. COMMISSIONER, P-H 1939
B.T.A. MEM. DEC. PARA. 39,081; PIERCE V. COMMISSIONER, 41 B.T.A. 1261;
WHITCHER V. WELCH, 22 F. SUPP. 763. 

SIMILAR DECISIONS RENDERED SINCE THE REVENUE ACT OF 1942 INCLUDE:
ORTIZ V. COMMISSIONER, 42 B.T.A. 173, REVERSED ON ANOTHER GROUND, SUB
NOM. HELVERING V. WILMINGTON TRUST CO., 124 F.2D 156, REVERSED (WITHOUT
DISCUSSION ON THIS POINT), 316 U.S. 164; BURNETT V. COMMISSIONER, P-H
1942 B.T.A. MEM. DEC. PARA. 42,528; RITTER V. COMMISSIONER, P-H 1946 TC
MEM. DEC. PARA. 46,237; GREENHOUSE V. COMMISSIONER, P-H 1954 TC MEM.
DEC. PARA. 54,250; ESTATE OF ROSSET V. COMMISSIONER, P-H 1954 TC MEM.
DEC. PARA. 54,346; WATSON V. COMMISSIONER, 8 T.C. 569; SHERMAN V.
COMMISSIONER, 18 T.C. 746; AFTERGOOD V. COMMISSIONER, 21 T.C. 60;
STAMOS V. COMMISSIONER, 22 T.C. 885. 

FN11  "SEC.  166.  BAD DEBTS. 

     *         *      *         *         * 

"(F)  GUARANTOR OF CERTAIN NONCORPORATE OBLIGATIONS.  - A PAYMENT BY
THE TAXPAYER (OTHER THAN A CORPORATION) IN DISCHARGE OF PART OR ALL OF
HIS OBLIGATION AS A GUARANTOR, ENDORSER, OR INDEMNITOR OF A
NONCORPORATE OBLIGATION THE PROCEEDS OF WHICH WERE USED IN THE TRADE OR
BUSINESS OF THE BORROWER SHALL BE TREATED AS A DEBT BECOMING WORTHLESS
WITHIN SUCH TAXABLE YEAR FOR PURPOSES OF THIS SECTION (EXCEPT THAT
SUBSECTION (D) SHALL NOT APPLY), BUT ONLY IF THE OBLIGATION OF THE
BORROWER TO THE PERSON TO WHOM SUCH PAYMENT WAS MADE WAS WORTHLESS
(WITHOUT REGARD TO SUCH GUARANTY, ENDORSEMENT, OR INDEMNITY) AT THE
TIME OF SUCH PAYMENT."  68A STAT. 50, 26 U.S.C. SEC. 166(F).  AND SEE
65 YALE L.J. 247. 

FN12  SEE N. 5, SUPRA. 

FN13  READING CO. V. COMMISSIONER, 132 F.2D 306; W.F. YOUNG, INC. V.
COMMISSIONER, 120 F.2D 159; AMERICAN CIGAR CO. V. COMMISSIONER, 66 F.2D
425. 

FN14  THE BASIS FOR THIS STATEMENT CAME FROM THE OPINION OF THE COURT
OF APPEALS FOR THE SECOND CIRCUIT AND WAS EXPLAINED BY THAT COURT IN
ITS LATER OPINION IN SHIMAN V. COMMISSIONER, 60 F.2D 65, 67, AS
FOLLOWS: 

"THOUGH THERE WAS NO DEBT UNTIL SHIMAN PAID THE BROKERS, IT THEN
BECAME SUCH AT ONCE AND WAS KNOWN TO BE WORTHLESS AS SOON AS IT AROSE;
VERBALLY AT ANY RATE THERE IS NO DIFFICULTY.  NOR IS THERE ANY REASON
TO IMPUTE A PURPOSE TO EXCEPT SUCH CASES; THE LOSS IS AS REAL AND
UNAVOIDABLE AS THOUGH THE DEBT HAD HAD SOME VALUE FOR A SEASON.  THE
ANALOGY OF SECTION 204(B) IS APT.  WE CAN SEE NO GROUND THEREFORE FOR
QUESTION EXCEPT SOME OF THE LANGUAGE USED IN ECKERT V. BURNET, 283 U.S.
140, 51 S. CT. 373, 75 L. ED. 911, TAKEN FROM OUR OPINION IN 42 F.(2D)
158.  THAT WAS QUITE ANOTHER SITUATION.  ECKERT, THE TAXPAYER, HAD BEEN
AN ACCOMMODATION ENDORSER FOR A CORPORATION WHICH BECAME INSOLVENT. 
WHEN CALLED UPON TO PAY HE GAVE HIS NOTE INSTEAD, NOT PAYABLE WITHIN
THE YEAR.  THE COURT REFUSED TO ALLOW THE DEDUCTION, BECAUSE ECKERT WAS
KEEPING HIS BOOKS ON A CASH BASIS, BUT IT INTIMATED THAT WHEN HE PAID
HE MIGHT SUCCEED; UNTIL THEN HE HAD DONE NO MORE THAN CHANGE THE FORM
OF THE OBLIGATION.  YET IF IT WERE ENOUGH TO DEFEAT HIM THAT THE DEBT
WAS 'WORTHLESS WHEN ACQUIRED,' THE SAME OBJECTION OUGHT TO BE GOOD
AFTER HE HAD PAID; CONTRARY TO WHAT WAS SUGGESTED.  WE CANNOT THEREFORE
THINK THAT THE LANGUAGE SO THROWN OUT WAS INTENDED AS AN AUTHORITATIVE
STATEMENT BY WHICH WE MUST BE BOUND." 

FN15  SEE HELVERING V. PRICE, 309 U.S. 409.  THE REQUIREMENT THAT THE
DEBT BE "ASCERTAINED TO BE WORTHLESS AND CHARGED OFF WITHIN THE TAXABLE
YEAR" WAS SUPERSEDED IN THE REVENUE ACT OF 1942, SEC. 124(A), BY THE
REQUIREMENT THAT THE DEBT BE ONE WHICH "BECOMES WORTHLESS WITHIN THE
TAXABLE YEAR." 

FN16  CHAIRMAN DOUGHTON OF THE HOUSE COMMITTEE ON WAYS AND MEANS
OPENED THE HEARINGS ON THE BILL WHICH BECAME THE REVENUE ACT OF 1942
WITH THE STATEMENT:  "  ...  THE MEETING OF THE COMMITTEE THIS MORNING
IS THE FIRST STEP IN THE CONSIDERATION, PREPARATION, AND REPORTING OF
PERHAPS THE LARGEST TAX BILL THAT IT HAS EVER BEEN THE DUTY AND
RESPONSIBILITY OF OUR COMMITTEE TO REPORT. 

"WE ARE FACED WITH REVENUE NEEDS AND A TAX PROGRAM OF A MAGNITUDE
UNTHOUGHT OF IN MODERN TIMES, AND WE ALL REALIZE IT IS NECESSARY TO
RAISE EVERY DOLLAR OF ADDITIONAL REVENUE THAT CAN BE RAISED WITHOUT
SERIOUSLY DISTURBING OR SHATTERING OUR NATIONAL ECONOMY."  HEARINGS
BEFORE HOUSE COMMITTEE ON WAYS AND MEANS ON REVENUE REVISION OF 1942,
77TH CONG., 2D SESS. 1. 

FN17  PETITIONERS ARGUE THAT THIS WAS ITS SOLE PURPOSE AND THAT THE
THE CONTEXT OF THE SEGMENT OF THE HOUSE WAYS AND MEANS COMMITTEE REPORT
DISCUSSING THIS OBJECTIVE DOES NOT SUPPORT THE PETITIONERS' ARGUMENT. 
H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 45: 

"C.  NONBUSINESS BAD DEBTS. 

"THE PRESENT LAW GIVES THE SAME TAX TREATMENT TO BAD DEBTS INCURRED
IN NONBUSINESS TRANSACTIONS AS IT ALLOWS TO BUSINESS BAD DEBTS.  AN
EXAMPLE OF A NONBUSINESS BAD DEBT WOULD BE AN UNREPAID LOAN TO A FRIEND
OR RELATIVE, WHILE BUSINESS BAD DEBTS ARISE IN THE COURSE OF THE
TAXPAYER'S TRADE OR BUSINESS.  THIS LIBERAL ALLOWANCE FOR NONBUSINESS
BAD DEBTS HAS SUFFERED CONSIDERABLE ABUSE THROUGH TAXPAYERS MAKING
LOANS WHICH THEY DO NOT EXPECT TO BE REPAID.  THIS PRACTICE IS
PARTICULARLY PREVALENT IN THE CASE OF LOANS TO PERSONS WITH RESPECT TO
WHOM THE TAXPAYER IS NOT ENTITLED TO A CREDIT FOR DEPENDENTS.  THIS
SITUATION HAS PRESENTED SERIOUS ADMINISTRATIVE DIFFICULTIES BECAUSE OF
THE REQUIREMENT OF PROOF. 

"THE BILL TREATS THE LOSS FROM NONBUSINESS BAD DEBTS AS A SHORT-TERM
CAPITAL LOSS.  THE EFFECT OF THIS PROVISION IS TO TAKE THE LOSS FULLY
INTO ACCOUNT, BUT TO ALLOW IT TO BE USED ONLY TO REDUCE CAPITAL GAINS. 
LIKE ANY OTHER CAPITAL LOSS, HOWEVER, THE AMOUNT OF SUCH BAD DEBT
LOSSES MAY BE TAKEN TO THE EXTENT OF $1,000 AGAINST ORDINARY INCOME AND
THE 5-YEAR CARRY-OVER PROVISION APPLIES." 

FN18  HEARINGS BEFORE HOUSE COMMITTEE ON WAYS AND MEANS ON REVENUE
REVISION OF 1942, 77TH CONG., 2D SESS. 90. 

FN19  H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 44. 

FN20  SECTION 23(G)(2) AND (3) AS TO WORTHLESS STOCK.  SECTION
23(K)(2)(3) AND (4) AS TO LOANS.  AS JUDGE STEWART POINTED OUT IN HIS
DISSENTING OPINION IN THE CUDLIP CASE, 220 F.2D, AT 572: 

"HAD THE PETITIONER MADE THE NECESSARY ADDITIONAL INVESTMENT IN THE
CONVENTIONAL FORM OF SUBSCRIBING FOR STOCK, HIS LOSS UPON THE FAILURE
OF THE CORPORATION WOULD HAVE BEEN A CAPITAL LOSS, SEC. 23(G)(2),
I.R.C.  HAD HE MADE THE INVESTMENT IN THE FORM OF A LOAN TO THE
CORPORATION EVIDENCED BY AN INSTRUMENT BEARING INTEREST COUPONS, HIS
LOSS WOULD LIKEWISE HAVE BEEN A CAPITAL LOSS, SEC. 23(K)(2), I.R.C.
HAD HE MADE THE ADDITIONAL INVESTMENT IN THE FORM OF AN ORDINARY LOAN
TO THE CORPORATION, HIS LOSS WOULD LIKEWISE HAVE BEEN A CAPITAL LOSS,
SEC. 23(K)(4) I.R.C., COMMISSIONER OF INTERNAL REVENUE V. SMITH,
SUPRA. 

"BECAUSE THE PETITIONER HAPPENED INSTEAD TO RISK HIS MONEY BY
GUARANTEEING THE CORPORATION'S BANK LOANS, THE COURT NOW HOLDS THAT THE
PETITIONER MAY TAKE AN ORDINARY LOSS, DEDUCTIBLE IN FULL FROM HIS
ORDINARY INCOME.  YET FROM THE PETITIONER'S VIEWPOINT, THE SITUATION
WOULD HAVE BEEN PRECISELY THE SAME HAD HE HIMSELF BORROWED THE MONEY
AND THEN LENT IT TO THE CORPORATION.  IT THEREFORE SEEMS TO ME THAT THE
RESULT REACHED BY THE COURT IN THIS CASE IS SIGNIFICANTLY
UNREALISTIC." 

FN21 UPON THIS GROUND, CONTRARY TO THE HOLDING IN FOX V.
COMMISSIONER, 190 F.2D 101, THE GUARANTOR'S NONBUSINESS LOSS WOULD
RECEIVE SHORT-TERM CAPITAL LOSS TREATMENT DESPITE THE NONEXISTENCE OF
THE DEBTOR AT THE TIME OF THE GUARANTOR'S PAYMENT TO THE CREDITOR. 

MR. JUSTICE HARLAN, DISSENTING. 

BEING UNRECONCILED TO THE COURT'S DECISION, WHICH SETTLES A CONFLICT
ON THIS TAX QUESTION AMONG THE COURTS OF APPEALS AND THUS HAS AN IMPACT
BEYOND THE CONFINES OF THIS PARTICULAR CASE, I MUST REGRETFULLY
DISSENT. 

THE COURT'S APPROVAL OF THE COMMISSIONER'S TREATMENT OF PETITIONER'S
LOSS AS ONE ARISING FROM A "NONBUSINESS DEBT," WITHIN THE MEANING OF
SEC. 23(K)(4) OF THE INTERNAL REVENUE CODE OF 1939, (FN1) INSTEAD OF AS
A LOSS INCURRED IN A "TRANSACTION ENTERED INTO FOR PROFIT," UNDER SEC.
23(E)(2), (FN2) RESTS ON WHAT IS, IN MY OPINION, A STRAINED APPLICATION
OF THE EQUITABLE DOCTRINE OF SUBROGATION.  NO ONE CONTENDS THAT
PETITIONER ACQUIRED THE COMPANY'S DEBT TO THE LENDING BANK WHEN HE
ENTERED INTO THE AGREEMENT GUARANTEEING PAYMENT OF THAT INDEBTEDNESS. 
RATHER, THE GOVERNMENT'S BASIC ARGUMENT, AS TAKEN FROM ITS BRIEF, IS
THIS: 

"THE PRINCIPLE IS WELL ESTABLISHED, BOTH GENERALLY AND IN THE STATE
OF IOWA WHERE THE GUARANTY WAS EXECUTED AND PERFORMED, THAT A GUARANTOR
WHO IS REQUIRED TO MAKE PAYMENT UNDER HIS GUARANTY CONTRACT SUCCEEDS TO
THE RIGHTS OF THE CREDITOR BY SUBROGATION.  THE LAW IMPLIES A PROMISE
ON THE PART OF THE PRINCIPAL DEBTOR TO REIMBURSE THE GUARANTOR, AND THE
GUARANTOR'S PAYMENT IS TREATED NOT AS EXTINGUISHING THE DEBT BUT AS
MERELY SUBSTITUTING THE GUARANTOR FOR THE CREDITOR.  ...  ACCORDINGLY,
WHILE A GUARANTOR BY ENTERING INTO THE GUARANTY CONTRACT AND MAKING
PAYMENT THEREUNDER PUTS HIMSELF IN A POSITION WHERE HE MAY SUSTAIN A
LOSS, IT IS ONLY IF, AND TO THE EXTENT THAT, THE DEBT WHICH HE ACQUIRES
BY SUBROGATION IS WORTHLESS THAT HE ACTUALLY SUSTAINS A LOSS.  THUS, IF
THE GUARANTOR, HAVING MADE PAYMENT UNDER HIS GUARANTY CONTRACT, IS ABLE
TO RECOVER IN FULL FROM THE PRINCIPAL DEBTOR, HE CLEARLY SUFFERS NO
LOSS AT ALL.  IT FOLLOWS, THEREFORE, THAT ANY LOSS, THE EXISTENCE AND
EXTENT OF WHICH IS WHOLLY AND DIRECTLY DEPENDENT UPON THE WORTHLESSNESS
OF A DEBT, SHOULD BE ATTRIBUTED TO THE WORTHLESSNESS OF THAT DEBT,
I.E., SHOULD BE CONSIDERED A BAD DEBT LOSS." 

THE GOVERNMENT THEN ADDS THIS FOOTNOTE:  "SO LONG AS PAYMENT OF A
DEBT IS GUARANTEED BY A SOLVENT GUARANTOR, THE INSOLVENCY OF THE
PRINCIPAL DEBTOR OBVIOUSLY DOES NOT RENDER THE DEBT WORTHLESS. 
CONSEQUENTLY, IF THE DEBT WHICH A GUARANTOR ACQUIRES BY SUBROGATION
BECOMES WORTHLESS, IT NECESSARILY BECOMES WORTHLESS IN THE HANDS OF THE
GUARANTOR RATHER THAN IN THE HANDS OF THE ORIGINAL CREDITOR." 

UPON ANALYSIS, THE GOVERNMENT'S ARGUMENT COMES DOWN TO THIS:  WHEN
THE PETITIONER HONORED HIS GUARANTY OBLIGATION HIS PAYMENT WAS OFFSET
BY THE ACQUISITION OF THE CREDITOR BANK'S RIGHTS AGAINST THE COMPANY ON
ITS INDEBTEDNESS; IN THE BANK'S HANDS THOSE RIGHTS WERE WORTH FULL
VALUE, SINCE THE COMPANY'S INDEBTEDNESS WAS SECURED BY THE GUARANTY;
THEREFORE PETITIONER'S LOSS SHOULD BE ATTRIBUTED TO THE SUBROGATION
DEBT, WHICH BECAME WORTHLESS IN HIS HANDS BECAUSE NO LONGER SO
SECURED. 

THIS ARGUMENT WOULD HAVE SUBSTANCE IN A CASE WHERE THE PRINCIPAL
DEBTOR WAS NOT INSOLVENT AT THE TIME THE GUARANTY WAS FULFILLED; FOR IN
SUCH A CASE IT COULD BE SAID THAT THE ACQUIRED DEBT WAS NOT WITHOUT
VALUE IN THE GUARANTOR'S HANDS, AND HENCE HE SHOULD NOT BE ALLOWED A
TAX DEDUCTION UNTIL THE DEBT TURNS OUT TO BE WORTHLESS.  BUT WHEN, AS
HERE, THE DEBTOR IS INSOLVENT AT THE VERY TIME THE GUARANTOR MEETS HIS
OBLIGATION, IT DEFIES REALITY TO ATTRIBUTE THE GUARANTOR'S LOSS TO
ANYTHING OTHER THAN THE DISCHARGE OF HIS GUARANTY OBLIGATION.  TO
ATTRIBUTE THAT LOSS TO THE ACQUIRED DEBT IN SUCH A CASE REQUIRES ONE TO
CONCEIVE OF THE DEBT AS HAVING VALUE AT THE MOMENT OF ACQUISITION, BUT
AS WITHERING TO WORTHLESSNESS THE MOMENT THE GUARANTOR TOUCHES IT. THAT
THE SAME DEBT IN THE SAME MILLISECOND CAN HAVE BOTH OF THESE
ANTAGONISTIC CHARACTERISTICS IS, FOR ME, TOO ESOTERIC A CONCEPT TO
CARRY LEGAL CONSEQUENCES, EVEN IN THE FIELD OF TAXATION. 

IT WAS THIS DEPARTURE FROM REALITY WHICH FIRST LED THE COURT OF
APPEALS FOR THE SECOND CIRCUIT TO REJECT THE COMMISSIONER'S THEORY, AS
APPLIED TO A LOSS INCURRED BY A WIDOW UPON A GUARANTY OF HER HUSBAND'S
BROKERAGE ACCOUNT WHICH SHE WAS CALLED UPON TO HONOR LONG AFTER HIS
DEATH AND THE WINDING UP OF HIS INSOLVENT ESTATE.  FOX V. COMMISSIONER,
190 F.2D 101.  IN THAT CASE THE COURT, AFTER REFERRING TO THE "ILLUSORY
CHARACTER" OF THE SUBROGATION CLAIM WHICH, THE TAX COURT HELD, SHE HAD
ACQUIRED AGAINST HER LATE HUSBAND UPON HER PAYMENT OF THE GUARANTY,
WENT ON TO SAY, AT PP. 103-104: 

"SHE (THE WIDOW) ARGUES THAT THE COURT'S THEORY OF A DEBT AGAINST HER
HUSBAND'S ESTATE AMOUNTS TO A SUBROGATION FORCED UPON HER, CONTRARY TO
THE EQUITABLE SPIRIT OF THE DOCTRINE, TO YIELD HER AN UTTERLY WORTHLESS
CLAIM AND A VERY REAL TAX LIABILITY.  ...  WE THINK HER ARGUMENT
PERSUASIVE.  ... CLEARLY  ...  THE GUARANTY TRANSACTION WAS NOT THEN
ONE INVOLVING A BAD DEBT, SINCE SHE HAD NOT EVEN MADE THE PAYMENT WHICH
ALONE WOULD GIVE RISE TO A CLAIM IN HER FAVOR.  NOR COULD PAYMENT TEN
YEARS LATER CREATE A DEBT OUT OF SOMETHING LESS THAN EVEN THE
PROVERBIAL STONE.  IT IS UTTERLY UNREALISTIC TO CONSIDER THE PAYMENT AS
ONE MADE IN ANY EXPECTATION OF RECOVERY OVER OR OF ANY LEGAL CLAIM FOR
COLLECTION.  ACTUALLY IT WAS MERELY THE FULFILLMENT OF HER CONTRACTUAL
OBLIGATION OF THE EARLIER DATE.  THE BAD-DEBT PROVISION THUS HAD NO
DIRECT APPLICATION; ONLY BY STRAINING THE STATUTORY LANGUAGE CAN WE
ERECT HERE A DISEMBODIED DEBT AGAINST AN INSOLVENT AND LONG DEAD
DEBTOR."    BEING UNABLE TO DIFFERENTIATE THE WORTHLESSNESS OF A
SUBROGATION DEBT CLAIM AGAINST A NONEXISTENT INDIVIDUAL DEBTOR FROM
SUCH A CLAIM AGAINST AN EXISTENT, BUT INSOLVENT, CORPORATE DEBTOR, THE
COURTS OF APPEALS, UNTIL THE PRESENT CASE, (FN3) HAVE CONSISTENTLY
APPLIED THE REASONING OF THE FOX CASE TO LOSSES INCURRED ON INDIVIDUAL
GUARANTIES OF CORPORATE INDEBTEDNESS WHERE THE CORPORATION, THOUGH
STILL IN EXISTENCE, WAS INSOLVENT AT THE TIME THE GUARANTY WAS
HONORED.  POLLAK V. COMMISSIONER, 209 F.2D 57; (FN4) EDWARDS V. ALLEN,
216 F.2D 794; (FN5) CUDLIP V. COMMISSIONER, 220 F.2D 565; (FN6) SEE
ALSO ANSLEY V. COMMISSIONER, 217 F.2D 252.  (FN7)  THE RATIONALE OF
THESE FOUR COURTS OF APPEALS IS, IN MY OPINION, MORE CONVINCING THAN
THAT OF THE COMMISSIONER, AND I THINK THIS COURT SHOULD HAVE APPROVED
AND FOLLOWED IT HERE BY HOLDING THAT THIS TAXPAYER'S LOSS WAS FULLY
DEDUCTIBLE UNDER SEC. 23(E)(2) AS A LOSS ON A "TRANSACTION ENTERED INTO
FOR PROFIT," INSTEAD OF REGARDING IT AS A "NONBUSINESS DEBT" LOSS,
SUBJECT TO CAPITAL LOSS TREATMENT UNDER SEC. 23(K)(4). 

I CANNOT AGREE WITH THE COURT THAT EITHER THE CIRCUMSTANCES UNDER
WHICH SEC. 23(K)(4) WAS ENACTED IN 1942, OR THE PROVISIONS OF SEC.
166(F) OF THE INTERNAL REVENUE CODE OF 1954, (FN8) POINT TO AN OPPOSITE
CONCLUSION.  SECTION 23(K)(4) CREATED A NEW CATEGORY OF DEBT LOSSES,
NAMELY, "NONBUSINESS DEBT" LOSSES, WHICH WERE THENCEFORTH TO BE GIVEN
CAPITAL LOSS TREATMENT INSTEAD OF THE FULL LOSS DEDUCTION THERETOFORE
ACCORDED THEM.  (FN9)  THE COURT FINDS THE "OBJECTIVES SOUGHT TO BE
ACHIEVED BY THE CONGRESS," THROUGH THE ENACTMENT OF THIS SECTION,
"PERSUASIVE THAT SEC. 23(K)(4) APPLIES TO A GUARANTOR'S NONBUSINESS
DEBT LOSSES," IN THAT THE "SECTION WAS PART OF THE COMPREHENSIVE TAX
PROGRAM ENACTED BY THE REVENUE ACT OF 1942 TO INCREASE THE NATIONAL
REVENUE," IN CONNECTION WITH WORLD WAR II, AND "WAS SUITED TO PUT
NONBUSINESS INVESTMENTS IN THE FORM OF LOANS ON A FOOTING WITH OTHER
NONBUSINESS INVESTMENTS."  BUT IT SEEMS TO ME THAT THE HOUSE WAYS AND
MEANS COMMITTEE REPORT ON THE BILL SHOWS THAT SEC. 23(K)(4) WAS AIMED
AT A SPECIFIC NARROW OBJECTIVE, NAMELY, THAT OF REDUCING REVENUE LOSS
FROM THE DEDUCTION OF "FAMILY" OR "FRIENDLY" LOANS WHICH WERE IN
REALITY GIFTS.  THE REPORT STATES: 

"C.  NONBUSINESS BAD DEBTS. 

"THE PRESENT LAW GIVES THE SAME TAX TREATMENT TO BAD DEBTS INCURRED
IN NONBUSINESS TRANSACTIONS AS IT ALLOWS TO BUSINESS BAD DEBTS.  AN
EXAMPLE OF A NONBUSINESS BAD DEBT WOULD BE AN UNREPAID LOAN TO A FRIEND
OR RELATIVE, WHILE BUSINESS BAD DEBTS ARISE IN THE COURSE OF THE
TAXPAYER'S TRADE OR BUSINESS.  THIS LIBERAL ALLOWANCE FOR NONBUSINESS
BAD DEBTS HAS SUFFERED CONSIDERABLE ABUSE THROUGH TAXPAYERS MAKING
LOANS WHICH THEY DO NOT EXPECT TO BE REPAID.  THIS PRACTICE IS
PARTICULARLY PREVALENT IN THE CASE OF LOANS TO PERSONS WITH RESPECT TO
WHOM THE TAXPAYER IS NOT ENTITLED TO A CREDIT FOR DEPENDENTS.  THIS
SITUATION HAS PRESENTED SERIOUS ADMINISTRATIVE DIFFICULTIES BECAUSE OF
THE REQUIREMENT OF PROOF. 

"THE BILL TREATS THE LOSS FROM NONBUSINESS BAD DEBTS AS A SHORT-TERM
CAPITAL LOSS.  THE EFFECT OF THIS PROVISION IS TO TAKE THE LOSS FULLY
INTO ACCOUNT, BUT TO ALLOW IT TO BE USED ONLY TO REDUCE CAPITAL GAINS. 
LIKE ANY OTHER CAPITAL LOSS, HOWEVER, THE AMOUNT OF SUCH BAD DEBT
LOSSES MAY BE TAKEN TO THE EXTENT OF $1,000 AGAINST ORDINARY INCOME AND
THE 5-YEAR CARRY-OVER PROVISION APPLIES."  (FN10) 

I AM UNABLE TO FIND IN THIS, OR IN ANY OF THE OTHER LEGISLATIVE
HISTORY TO WHICH THE COURT REFERS, ANY CLEAR INTIMATION OF A BROAD
POLICY TO ANALOGIZE GENERALLY ALL TYPES OF NONBUSINESS LOANS TO OTHER
FORMS OF CAPITAL INVESTMENT, (FN11) STILL LESS ANYTHING WHICH INDICATES
THAT GUARANTORS' LOSSES WERE CONSIDERED AS FALLING WITHIN THE NEW

LIKEWISE I THINK THAT THE COURT'S RELIANCE ON SEC. 166(F) OF THE 1954
CODE IS MISPLACED.  THAT SECTION PROVIDES THAT AN INDIVIDUAL TAXPAYER'S
GUARANTY PAYMENT DISCHARGING THE OBLIGATION OF A NONCORPORATE DEBTOR
"SHALL BE TREATED AS A DEBT BECOMING WORTHLESS WITHIN SUCH TAXABLE
YEAR," AND SHALL BE DEDUCTIBLE IN FULL IF (A) THE PROCEEDS OF THE
GUARANTEED OBLIGATION WERE USED "IN THE TRADE OR BUSINESS OF THE
BORROWER," AND (B) THAT OBLIGATION WAS WORTHLESS AT THE TIME THE
GUARANTOR MADE PAYMENT.  (FN13)  THE COURT SAYS THAT BY ENACTING THIS
GUARANTORS' LOSSES AS BAD DEBT LOSSES, AT LEAST SO FAR AS GUARANTIES OF
CERTAIN NONCORPORATE OBLIGATIONS ARE CONCERNED.  I CANNOT AGREE, FOR
AGAIN I THINK THIS SECTION HAD A SPECIFIC AND LIMITED PURPOSE, WHICH
DID NOT INCLUDE THE THRUST WHICH THE COURT NOW GIVES THE SECTION.  THAT
PURPOSE, I THINK, WAS SIMPLY TO PERMIT DEDUCTION OF CERTAIN GUARANTY
PAYMENTS THAT WERE NOT DEDUCTIBLE AT ALL UNDER THE 1939 CODE.  PAYMENTS
NOW DEDUCTIBLE UNDER SEC. 166(F) NEED NOT BE MADE IN THE COURSE OF THE
GUARANTOR'S "TRADE OR BUSINESS," NOR NEED THEY BE ATTRIBUTABLE TO A
TRANSACTION "ENTERED INTO FOR PROFIT."  THEY ARE DEDUCTIBLE, IT WOULD
SEEM, SO LONG AS THE GUARANTOR HAD SOME EXPECTATION OF BEING REPAID -
SO LONG, IN OTHER WORDS, AS THE TRANSACTION WAS NOT A GIFT.  UNDER
PRIOR LAW, SUCH PAYMENTS WOULD NOT HAVE BEEN DEDUCTIBLE AS "BUSINESS"
DEBTS, UNDER SEC. 23(K)(1), (FN14) OR AS LOSSES ON TRANSACTIONS
"ENTERED INTO FOR PROFIT," UNDER SEC. 23(E)(2), OR EVEN AS
"NONBUSINESS" DEBTS UNDER SEC. 23(K)(4), SINCE THE FOX LINE OF CASES
HELD THAT SUCH PAYMENTS DO NOT GIVE RISE TO "DEBTS."  HOWEVER, HERE
AGAIN, AS WITH THE ENACTMENT OF THE SEC. 23(K)(4) "NONBUSINESS DEBT"
PROVISION IN 1942, CONGRESS WAS CONCERNED WITH FENDING AGAINST
ALLOWANCE OF THIS TYPE OF DEDUCTION IN CASES OF FICTITIOUS "FAMILY" OR
"FRIENDLY" GUARANTIES.  HENCE IT WAS UNWILLING TO ALLOW THE DEDUCTION
TO ALL GUARANTORS OF INDIVIDUAL BORROWINGS.  CONSIDERING GUARANTIES OF
LOANS SOUGHT FOR BUSINESS PURPOSES TO BE FREE OF SUCH INFIRMITIES,
CONGRESS ATTEMPTED TO OBVIATE ABUSE OF SEC. 166(F) BY LIMITING ITS
APPLICATION TO GUARANTIES OF LOANS THE PROCEEDS OF WHICH "WERE USED IN
THE TRADE OR BUSINESS OF THE BORROWER." 

IN LIGHT OF WHAT SEEMS TO HAVE BEEN THE PARTICULAR CONGRESSIONAL
PURPOSE, I THINK IT STRAINS SEC. 166(F) TO READ IT AS BROADLY
CONFIRMING THE TREATMENT OF GUARANTY LOSSES AS BAD DEBT LOSSES.  (FN15)
CONGRESS PRESUMABLY KNEW OF THE FOX LINE OF CASES, SUPRA, WHICH HAD
REFUSED "DEBT" TREATMENT TO GUARANTORS' LOSSES, AND IT IS NOT WITHOUT
SIGNIFICANCE THAT THE SENATE REPORT ON SEC. 166(F) STATED:  "IF THE
REQUIREMENTS OF THIS SECTION ARE NOT MET, THE TAXPAYER WILL, AS UNDER
PRESENT LAW, BE TREATED TAXWISE UNDER WHATEVER PROVISIONS OF THE CODE
ARE APPLICABLE IN THE FACTUAL SITUATION."  (FN16)  IT IS TRUE THAT SEC.
166(F) PROVIDES THAT ANY PAYMENT INCLUDED THEREIN "SHALL BE TREATED AS
A DEBT"; BUT OF MORE SIGNIFICANCE IS THE FACT THAT THE PERSON CLAIMING
THE DEDUCTION NEED NOT SHOW THAT HE IN FACT OWNED A "DEBT" OR THAT SUCH
DEBT HAD "BECOME WORTHLESS DURING THE TAXABLE YEAR" - THE REQUIREMENT
FOR DEDUCTIBILITY OF BOTH BUSINESS AND NONBUSINESS BAD DEBTS UNDER SEC.
23(K)(1) AND (4) - SINCE "FOR PURPOSES OF THIS SECTION" (SEC. 166(F))
THE GUARANTOR'S LOSS IS "TREATED AS" A DEBT "BECOMING WORTHLESS WITHIN
SUCH TAXABLE YEAR" AS THE LOSS OCCURS.  IN OTHER WORDS, THOUGH
ASSIMILATED TO A "DEBT" LOSS, THE LOSS ARISING FROM THE GUARANTY
PAYMENT IN FACT NEED HAVE NONE OF THE ATTRIBUTES OF A DEBT LOSS IN
ORDER TO BE DEDUCTIBLE.  THE PRIMARY THRUST OF SEC. 166(F) WAS TO MAKE
DEDUCTIBLE SOME KINDS OF LOSSES WHICH WERE THERETOFORE NOT DEDUCTIBLE,
AND I THINK THAT DRAWING FROM THE LANGUAGE OF THE SECTION A DEFINITIVE
CHARACTERIZATION OF SUCH LOSSES AS "DEBTS" INVOLVES A MISPLACING OF
EMPHASIS. 

OF STILL GREATER SIGNIFICANCE IS THE FACT THAT SEC. 166(F) LOSSES ARE
DEDUCTIBLE IN FULL.  THIS, IT SEEMS TO ME, IS MORE CONSISTENT WITH THE
VIEW THAT CONGRESS DID NOT INTEND TO DISTURB THE LINE OF CASES WHICH,
FOLLOWING FOX, GAVE A FULL DEDUCTION UNDER SEC. 23(E)(2) TO LOSSES ON
GUARANTIES OF CORPORATE OBLIGATIONS, THAN IT IS WITH THE COURT'S VIEW
THAT SEC. 166(F) CONFIRMS CONGRESS' INTENT THAT SUCH LOSSES SHOULD BE
ONLY PARTIALLY DEDUCTIBLE AS NONBUSINESS BAD DEBTS UNDER SEC.
23(K)(4).  OTHERWISE WE WOULD HAVE THE ANOMALOUS RESULT THAT UNDER THE
1954 CODE INDIVIDUAL GUARANTORS OF NONCORPORATE OBLIGATIONS ARE GIVEN
BETTER TREATMENT THAN THOSE GUARANTEEING CORPORATE OBLIGATIONS, EVEN
THOUGH THE BASIC LIMITATION WHICH CONGRESS IMPOSED UPON THE
DEDUCTIBILITY OF SEC. 166(F) LOSSES, NAMELY, THAT THE PROCEEDS OF THE
GUARANTEED OBLIGATION "WERE USED IN THE TRADE OR BUSINESS OF THE
BORROWER," IS ALWAYS PRESENT IN THE CASE OF A GUARANTY OF A CORPORATE
OBLIGATION. 

IN SHORT, I THINK THAT WHEN THE PURPOSES AND PROVISIONS OF SEC.
166(F) ARE TAKEN TOGETHER, IT IS QUITE EVIDENT THAT THE SECTION WAS
INTENDED TO COMPLEMENT THE DECISIONS OF THESE FOUR COURTS OF APPEALS,
(FN17) AND NOT TO OVERRIDE THEM. 

FINALLY, THE GOVERNMENT SUGGESTS THAT GIVING GUARANTORS' LOSSES THE
SAME CAPITAL LOSS TREATMENT AS NONBUSINESS DEBT LOSSES WOULD MAKE FOR A
BETTER TAX STRUCTURE, SINCE, IT IS ARGUED, BOTH KINDS OF LOSSES ARE
COMPARABLE TO LOSSES FROM INVESTMENTS, WHICH RECEIVE CAPITAL LOSS
TREATMENT UNDER BOTH THE 1939 AND 1954 CODES.  (FN18)  EVEN IF THAT BE
SO, THIS WOULD BE A MATTER FOR CONGRESS.  OUR DUTY IS TO TAKE THE
STATUTE AS WE FIND IT.  I WOULD REVERSE. 

FN1  "SEC.  23(K)(4)  NON-BUSINESS DEBTS. 

"IN THE CASE OF A TAXPAYER, OTHER THAN A CORPORATION, IF A
NONBUSINESS DEBT BECOMES WORTHLESS WITHIN THE TAXABLE YEAR, THE LOSS
RESULTING THEREFROM SHALL BE CONSIDERED A LOSS FROM THE SALE OR
EXCHANGE, DURING THE TAXABLE YEAR, OF A CAPITAL ASSET HELD FOR NOT MORE
THAN 6 MONTHS.  THE TERM 'NON-BUSINESS DEBT' MEANS A DEBT OTHER THAN A
DEBT EVIDENCED BY A SECURITY AS DEFINED IN PARAGRAPH (3) AND OTHER THAN
A DEBT THE LOSS FROM THE WORTHLESSNESS OF WHICH IS INCURRED IN THE
TAXPAYER'S TRADE OR BUSINESS." 

FN2  "SEC.  23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     *         *         *         *  * 

"(E)  LOSSES BY INDIVIDUALS. 

"IN THE CASE OF AN INDIVIDUAL, LOSSES SUSTAINED DURING THE TAXABLE
YEAR AND NOT COMPENSATED FOR BY INSURANCE OR OTHERWISE: 

     *         *      *         *         * 

"(2)  IF INCURRED IN ANY TRANSACTION ENTERED INTO FOR PROFIT, THOUGH
NOT CONNECTED WITH THE TRADE OR BUSINESS  ...  ." 

FN3  224 F.2D 947. 

FN4  THIRD CIRCUIT. 

FN5  FIFTH CIRCUIT. 

FN6  SIXTH CIRCUIT. 

FN7  THIRD CIRCUIT. 

FN8  "SEC.  166(F)  GUARANTOR OF CERTAIN NONCORPORATE OBLIGATIONS.  -
A PAYMENT BY THE TAXPAYER (OTHER THAN A CORPORATION) IN DISCHARGE OF
PART OR ALL OF HIS OBLIGATION AS A GUARANTOR, ENDORSER, OR INDEMNITOR
OF A NONCORPORATE OBLIGATION THE PROCEEDS OF WHICH WERE USED IN THE
TRADE OR BUSINESS OF THE BORROWER SHALL BE TREATED AS A DEBT BECOMING
WORTHLESS WITHIN SUCH TAXABLE YEAR FOR PURPOSES OF THIS SECTION (EXCEPT
THAT SUBSECTION (D) SHALL NOT APPLY), BUT ONLY IF THE OBLIGATION OF THE
BORROWER TO THE PERSON TO WHOM SUCH PAYMENT WAS MADE WAS WORTHLESS
(WITHOUT REGARD TO SUCH GUARANTY, ENDORSEMENT, OR INDEMNITY) AT THE
TIME OF SUCH PAYMENT." 

FN9  I.R.C., 1939, SEC. 23(K)(1), 53 STAT. 13, 26 U.S.C. (1940 ED.) 
SEC.  23(K)(1). 

FN10  H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 45. 

FN11  HAD THIS BEEN THE CONGRESSIONAL PURPOSE, IT COULD HAVE BEEN
ACCOMPLISHED SIMPLY BY SUBJECTING NONBUSINESS DEBT LOSSES TO THE
PROVISIONS OF THE STATUTE DEALING WITH WORTHLESS SECURITIES.  SEE SEC.
23(G)(2)-(4) OF THE INTERNAL REVENUE CODE OF 1939. 

FN12  WHEN IT ENACTED SEC. 23(K)(4) CONGRESS LEFT UNDISTURBED SEC.
23(E)(2) RELATING TO THE DEDUCTIBILITY OF LOSSES ON "ANY TRANSACTION
ENTERED INTO FOR PROFIT," AND THAT SECTION WAS SUBSEQUENTLY RE-ENACTED,
UNCHANGED, AS SEC. 165(C)(2) OF THE INTERNAL REVENUE CODE OF 1954. 

FN13  SEE NOTE 8, SUPRA. 

FN14  "SEC.  23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     *        *         *         *         * 

"(K)  BAD DEBTS. 

"(1)  GENERAL RULE. 

"DEBTS WHICH BECOME WORTHLESS WITHIN THE TAXABLE YEAR  ...  .  THIS
PARAGRAPH SHALL NOT APPLY IN THE CASE OF A TAXPAYER, OTHER THAN A
CORPORATION, WITH RESPECT TO A NON-BUSINESS DEBT, AS DEFINED IN
PARAGRAPH (4) OF THIS SUBSECTION." 

FN15  THE SENATE REPORT ON SEC. 166(F) SIMPLY STATES:  "YOUR
COMMITTEE ALSO PROVIDED THAT BUSINESS BAD DEBT TREATMENT WILL BE
AVAILABLE WHERE A NONCORPORATE TAXPAYER, WHO WAS THE ENDORSER (OR
GUARANTOR OR INDEMNITOR) OF THE OBLIGATION OF ANOTHER, IS REQUIRED TO
PAY THE OTHER'S DEBT (AND CANNOT COLLECT IT FROM THE DEBTOR).  HOWEVER,
THIS TREATMENT IS TO BE AVAILABLE ONLY WHERE THE DEBT REPRESENTS MONEY
USED IN THE OTHER PERSON'S TRADE OR BUSINESS.  YOUR COMMITTEE BELIEVES
THAT THIS TREATMENT SHOULD BE AVAILABLE IN SUCH CASES SINCE IN MOST
CASES DEBTS OF THIS TYPE USUALLY ARE INCURRED BECAUSE OF BUSINESS
RELATIONSHIPS."  S. REP. NO. 1622, 83D CONG., 2D SESS. 24-25. 

FN16  S. REP. NO. 1622, 83D CONG., 2D SESS. 200. 

FN17  ANTE, P. 97. 

FN18  I.R.C., 1939, SEC. 23(G)(2)-(4); I.R.C., 1954, SEC. 165(G). 
..END :









BROWNELL V. CHASE NATIONAL BANK OF NEW YORK 352 U.S. 36 


NO. 24.  ARGUED OCTOBER 16-17, 1956 - DECIDED NOVEMBER 19, 1956 - 286
APP. DIV. 808, 143 N.Y.S.2D 623, AFFIRMED. 


IN AN ACTION BROUGHT BY A TRUSTEE IN NEW YORK STATE COURTS FOR A
CONSTRUCTION OF THE INDENTURE AND FOR AN ACCOUNTING, THE ALIEN PROPERTY
CUSTODIAN, LATER SUCCEEDED BY THE ATTORNEY GENERAL OF THE UNITED
STATES, INTERVENED AND, IN EFFECT, TENDERED HIS CLAIM TO THE ENTIRE
PROPERTY, BY VIRTUE OF A VESTING ORDER ISSUED UNDER SEC. 5 OF THE
TRADING WITH THE ENEMY ACT, AS AMENDED.  THE STATE COURTS DENIED SUCH
RELIEF, AND NO REVIEW WAS SOUGHT HERE.  THE ATTORNEY GENERAL
SUBSEQUENTLY AMENDED THE VESTING ORDER AND BROUGHT SUIT IN THE NEW YORK
STATE COURTS, PRAYING THAT THE PRINCIPAL OF THE TRUST BE TRANSFERRED TO
HIM.  THE STATE COURTS DENIED THE RELIEF.  HELD:  PRINCIPLES OF RES
JUDICATA BAR THE PRESENT SUIT.  PP. 37-39. 

BROWNELL, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN,
V. CHASE NATIONAL BANK OF NEW YORK, TRUSTEE, ET AL. 

CERTIORARI TO THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW
YORK, FIRST DEPARTMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THE CASE IS WHETHER PETITIONER, BY VIRTUE OF A
VESTING ORDER ISSUED UNDER SEC. 5 OF THE TRADING WITH THE ENEMY ACT, AS
AMENDED, 40 STAT. 411, 50 U.S.C. APP. SEC. 5, IS ENTITLED TO THE RES OF
A TRUST ESTABLISHED IN 1928 BY ONE COBB AND ADMINISTERED BY RESPONDENT
UNDER AN INDENTURE.  THE TRUST WAS CREATED FOR THE BENEFIT OF THE
DESCENDANTS OF BRUNO REINICKE WHO, BY REASON OF HIS POWERS OVER THE
TRUST AND HIS OWNERSHIP OF THE RIGHT OF REVERSION, WAS THE REAL
SETTLOR. 

IN 1945, WHEN THIS NATION WAS AT WAR WITH GERMANY, THE ALIEN PROPERTY
CUSTODIAN ISSUED AN ORDER VESTING "ALL RIGHT, TITLE, INTEREST AND CLAIM
OF ANY KIND OR CHARACTER WHATSOEVER" OF THE BENEFICIARIES OF THE TRUST,
DECLARING THAT THEY WERE NATIONALS OF GERMANY.  SUBSEQUENTLY THE
CUSTODIAN (FOR WHOM THE ATTORNEY GENERAL WAS LATER SUBSTITUTED)
INTERVENED IN AN ACTION BROUGHT BY THE TRUSTEE IN THE NEW YORK COURTS
FOR A CONSTRUCTION OF THE INDENTURE AND FOR AN ACCOUNTING.  RELIEF
SOUGHT BY THAT INTERVENTION WAS THAT THE INCOME OF THE TRUST BE PAID TO
THE ATTORNEY GENERAL AND THAT THE POWERS RESERVED TO THE SETTLOR BE
HELD TO HAVE PASSED BY VIRTUE OF THE VESTING ORDER TO THE ATTORNEY
GENERAL.  WE ARE ALSO ADVISED BY THE REPORT OF THE CASE IN THE COURT OF
APPEALS THAT THE ATTORNEY GENERAL ALSO CLAIMED THAT, IF THE VESTING
ORDER HAD NOT TRANSFERRED THE SETTLOR'S POWERS TO THE ATTORNEY GENERAL,
"THEN THE TRUST HAD FAILED AND ALL OF THE TRUST PROPERTY SHOULD PASS TO
THE ATTORNEY GENERAL UNDER THE VESTING ORDER AS BEING PROPERTY OF ALIEN
ENEMIES."  CHASE NATIONAL BANK V. MCGRATH, 301 N.Y. 602, 603-604, 93
N.E.2D 495. 

THE NEW YORK SUPREME COURT DENIED THE RELIEF ASKED BY THE ATTORNEY
GENERAL, HOLDING HE WAS NOT ENTITLED TO THE INCOME OF THE TRUST, THAT
HE HAD NOT SUCCEEDED TO THE POWERS OF THE SETTLOR, AND THAT THOSE
POWERS WERE VESTED IN THE TRUSTEE AS LONG AS THE SETTLOR WAS BARRED
FROM ASSERTING THEM.  ON APPEAL THE APPELLATE DIVISION AFFIRMED.  CHASE
NATIONAL BANK V. MCGRATH, 276 APP. DIV. 831, 93 N.Y.S.2D 724.  THE
COURT OF APPEALS IN TURN AFFIRMED.  CHASE NATIONAL BANK V. MCGRATH, 301
N.Y. 602, 93 N.E.2D 495.  NO REVIEW OF THAT ORDER WAS SOUGHT HERE. 

SOME YEARS PASSED, WHEN, IN 1953, THE ATTORNEY GENERAL AMENDED THE
VESTING ORDER BY UNDERTAKING TO APPROPRIATE "ALL PROPERTY IN THE
POSSESSION, CUSTODY OR CONTROL" OF THE TRUSTEE.*  IN A SUIT IN THE NEW
YORK COURTS HE ASKED, AMONG OTHER THINGS, THAT THE PRINCIPAL OF THE
TRUST BE TRANSFERRED TO HIM.   THE SUPREME COURT OF NEW YORK DENIED THE
RELIEF.  THE APPELLATE DIVISION AFFIRMED WITHOUT OPINION.  CHASE
NATIONAL BANK V. REINICKE, 286 APP. DIV.  808, 143 N.Y.S.2D 623.  THE
COURT OF APPEALS DENIED LEAVE TO APPEAL.  CHASE NATIONAL BANK V.
REINICKE, 309 N.Y. 1030, 129 N.E.2D 790.  THE CASE IS HERE ON
CERTIORARI.  350 U.S. 964. 

*THE STATE OF WAR BETWEEN THIS COUNTRY AND GERMANY WAS DECLARED ENDED
BY THE JOINT RESOLUTION OF OCTOBER 19, 1951, 65 STAT. 451.  THAT
RESOLUTION CONTAINED, HOWEVER, A PROVISO THAT ALL PROPERTY, WHICH,
PRIOR TO JANUARY 1, 1947, WAS SUBJECT TO SEIZURE UNDER THE ACT,
CONTINUED TO BE SUBJECT TO THE ACT.  THE 1953 VESTING ORDER PRECEDED BY
A FEW DAYS THE TERMINATION OF THE VESTING PROGRAM OF GERMAN-OWNED
PROPERTIES ANNOUNCED BY THE PRESIDENT ON APRIL 17, 1953. 

WE DO NOT REACH THE SEVERAL QUESTIONS PRESENTED UNDER THE TRADING
WITH THE ENEMY ACT FOR WE ARE OF THE VIEW THAT THE PRINCIPLES OF RES
JUDICATA REQUIRE AN AFFIRMANCE.  IN THE FIRST LITIGATION, THE ATTORNEY
GENERAL SOUGHT TO REACH THE EQUITABLE INTERESTS IN THE TRUST AND THE
POWERS OF THE SETTLOR.   WHEN THE ATTORNEY GENERAL NOW SEEKS THE ENTIRE
BUNDLE OF RIGHTS, HE IS CLAIMING FOR THE MOST PART WHAT WAS DENIED HIM
IN THE FIRST SUIT.  THAT IS NOT ALL.  IN THE FIRST SUIT HE CLAIMED THAT
IF HE WERE DENIED THE POWERS WHICH THE SETTLOR HAD OVER THE TRUST, THE
TRUST MUST FAIL AND ALL THE TRUST PROPERTY MUST BE TRANSFERRED TO HIM. 
IN OTHER WORDS, THE ATTORNEY GENERAL TENDERED IN THE FIRST SUIT HIS
CLAIM TO THE ENTIRE PROPERTY.  CF. YOUNG V. HIGBEE CO., 324 U.S. 204,
208-209.  UNDER FAMILIAR PRINCIPLES OF RES JUDICATA, THE CLAIM SO
TENDERED MAY NOT BE RELITIGATED.  CROMWELL V. COUNTY OF SAC, 94 U.S.
351, 352; TAIT V. WESTERN MARYLAND R. CO., 289 U.S. 620, 623.  IF HE
WAS NOT CONTENT WITH THE FIRST RULING, HIS REMEDY WAS BY CERTIORARI TO
THIS COURT.  ANGEL V. BULLINGTON, 330 U.S. 183, 189.  HAVING FAILED TO
SEEK AND OBTAIN THAT REVIEW, HE IS BARRED FROM RELITIGATING THE ISSUES
TENDERED IN THE FIRST SUIT.  AFFIRMED. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 
..END :
















UNITED STATES V. BERGH 352 U.S. 40 


NO. 17.  ARGUED OCTOBER 15, 1956 - DECIDED NOVEMBER 19, 1956 - 132 CT.
CL. 564, 132 F. SUPP. 462, REVERSED. 


IN THE ABSENCE OF A VALID EMPLOYMENT AGREEMENT TO THE CONTRARY, PER
DIEM EMPLOYEES OF THE NAVY ARE NOT ENTITLED, UNDER THE JOINT RESOLUTION
OF JUNE 29, 1938, 5 U.S.C. SEC. 86A, OR THE JOINT RESOLUTION OF JANUARY
6, 1885, 23 STAT. 516, TO AN EXTRA DAY'S COMPENSATION FOR EACH HOLIDAY
WORKED DURING THE YEAR 1945.  PP. 40-48. 

(A)  THIS CONCLUSION, AND THE CONCLUSION THAT THE 1885 RESOLUTION WAS
REPEALED IN TOTO BY THE 1938 RESOLUTION, ARE SUPPORTED BY THE
LEGISLATIVE HISTORY, BY THE CONTEMPORARY ADMINISTRATIVE INTERPRETATION
OF THE 1938 RESOLUTION, AND BY THE TREATMENT ACCORDED THESE RESOLUTIONS
BY THE HOUSE COMMITTEE ON THE REVISION OF THE LAWS.  PP. 42-47. 

(B)  UNITED STATES V. KELLY, 342 U.S. 193, DISTINGUISHED.  PP. 47
48. 

UNITED STATES V. BERGH ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS INSTITUTED IN THE UNITED STATES COURT OF CLAIMS BY
GOVERNMENT PER DIEM EMPLOYEES TO RECOVER HOLIDAY PAY CONSISTING OF AN
EXTRA DAY'S COMPENSATION FOR EACH HOLIDAY WORKED DURING THE YEAR 1945. 

EACH OF THE RESPONDENTS WAS EMPLOYED BY THE NAVY UNDER A SCHEDULE OF
WAGES WHICH PROVIDED THAT "WHENEVER AN EMPLOYEE IS RELIEVED OR
PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF ANY DAY
DECLARED A HOLIDAY" HE WAS TO RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR
OTHER DAYS.  THIS LANGUAGE WAS TAKEN FROM A JOINT RESOLUTION OF
CONGRESS OF JUNE 29, 1938, 52 STAT. 1246, (FN1) HAVING TO DO WITH
HOLIDAY PAY.  IN 1945 THE RESPONDENTS WERE NOT RELIEVED FROM WORKING ON
CERTAIN HOLIDAYS NAMED IN THIS RESOLUTION AND WERE PAID ONLY THE
REGULAR SCHEDULED PAY FOR THE WORK PERFORMED ON THOSE DAYS.  THEY
CONTEND THAT UNDER A JOINT RESOLUTION OF JANUARY 6, 1885, 23 STAT. 516,
(FN2) THEY HAVE A VESTED RIGHT TO AN ADDITIONAL FULL DAY'S WAGE AS
"GRATUITY PAY" FOR EACH HOLIDAY WORKED.  THE GOVERNMENT URGES THAT THE
1885 RESOLUTION WAS REPEALED IN TOTO BY THE JOINT RESOLUTION OF JUNE
29, 1938, OR IN THE ALTERNATIVE THAT THE LATTER IS INCONSISTENT AND IN
CONFLICT WITH THE PROVISIONS OF THE EARLIER RESOLUTION UPON WHICH
RESPONDENTS RELY. 

THE COURT OF CLAIMS ENTERED JUDGMENT FOR RESPONDENTS, BELIEVING THAT
THE ISSUE "WAS CONSIDERED AND DISPOSED OF BY ITS MAJORITY OPINION  ...
IN KELLY V. UNITED STATES, 119 C. CLS. 197," HOLDING THAT THE EMPLOYEES
CONCERNED WERE ENTITLED TO GRATUITY PAY UNDER A JOINT RESOLUTION OF
1895, NOT HERE INVOLVED, AS WELL AS UNDER THEIR WAGE AGREEMENT
NEGOTIATED THROUGH COLLECTIVE BARGAINING IN 1924.  132 CT. CL. 564, 132
F. SUPP. 462.  WHILE WE AFFIRMED THE KELLY CASE, 342 U.S. 193, IT WAS
ON THE BASIS OF THE WAGE AGREEMENT PRESENT THERE.  WE LEFT OPEN THE
ISSUE INVOLVED HERE.  SUBSEQUENTLY, THOUSANDS OF CLAIMS BASED ON THE
1885 RESOLUTION, INCLUDING THOSE OF RESPONDENTS, WERE FILED AGAINST THE
GOVERNMENT, NECESSITATING A DECISION ON THE QUESTION NOW PRESENTED.  WE
GRANTED CERTIORARI, 350 U.S. 953. 

THE LEGISLATIVE HISTORY OF THE 1938 RESOLUTION IS CLEAR.  EXECUTIVE
ORDER NO. 7763 OF DECEMBER 6, 1937, 2 FED. REG. 2685, EXCUSED ALL
GOVERNMENT EMPLOYEES FROM WORK ON DECEMBER 24, 1937.  UNDER THE 1885
RESOLUTION PER DIEM EMPLOYEES RECEIVED NO COMPENSATION FOR THAT DAY
SINCE THE HOLIDAYS ENUMERATED THEREIN DID NOT INCLUDE DECEMBER 24.  A
JOINT RESOLUTION WAS INTRODUCED IN THE HOUSE BY REPRESENTATIVE RAMSPECK
TO ALLOW HOLIDAY PAY TO PER DIEM EMPLOYEES FOR THAT DAY.  ON REFERRAL
TO THE HOUSE COMMITTEE ON CIVIL SERVICE, ADVICE WAS SOUGHT FROM THE
CIVIL SERVICE COMMISSION, THE BUREAU OF THE BUDGET, AND THE COMPTROLLER
GENERAL.  THE CIVIL SERVICE COMMISSION ADVISED BY LETTER DATED FEBRUARY
15, 1938, THAT THE "ACCOUNTING AUTHORITIES, HOWEVER, HAVE HELD THAT IN
THE ABSENCE OF SPECIFIC LEGISLATION THE REGULAR EMPLOYEES OF THE
FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER
HOUR, OR ON A PIECE-WORK BASIS LOSE PAY FOR THAT DAY.  THIS HAS
RESULTED IN DISCRIMINATION AGAINST THESE GROUPS OF FEDERAL EMPLOYEES." 
THE COMMISSION ADVISED, FURTHER, THAT "THERE IS THE BROADER QUESTION
INVOLVED OF SECURING STATUTORY AUTHORITY FOR SUCH PAYMENTS AS A GENERAL
PRACTICE  ...  ."  H.R. REP. NO. 2683, 75TH CONG., 3D SESS. 2.  THE
COMMISSION SUGGESTED THE LANGUAGE THAT MIGHT BE INSERTED IN A
RESOLUTION THAT "WOULD GIVE PERMANENT STATUTORY AUTHORITY" FOR HOLIDAY
PAY.  IN ADDITION, THE COMMISSION'S REFERENCE TO THE "ACCOUNTING
AUTHORITIES" REVEALED THAT THE COMPTROLLER GENERAL HAD ADVISED THE
SECRETARY OF THE NAVY ON DECEMBER 20, 1937, THAT UNDER EXISTING LAW (A)
PER ANNUM EMPLOYEES SUFFERED NO LOSS OF INCOME AS THE RESULT OF
HOLIDAYS, WHETHER DECLARED BY STATUTE OR EXECUTIVE ORDER, WHEREAS PER
DIEM EMPLOYEES RECEIVED PAY ONLY FOR THOSE HOLIDAYS ENUMERATED IN THE
1885 RESOLUTION; (B) PER DIEM EMPLOYEES RECEIVED STATUTORY HOLIDAY PAY
WHETHER THE HOLIDAY HAPPENED TO FALL ON A NONWORK DAY (SATURDAY OR
SUNDAY) OR NOT, WHILE PER ANNUM WORKERS WERE ALLOWED NEITHER ADDITIONAL
PAY NOR HOLIDAY TIME WHEN THE HOLIDAY HAPPENED TO FALL ON A NONWORK
DAY; AND (C) IF A PER DIEM EMPLOYEE WORKED ON A STATUTORY HOLIDAY
FALLING ON SUCH A NONWORK DAY, HE RECEIVED DOUBLE PAY.  (FN3) 

IN ITS REPORT, SUPRA, TO THE HOUSE, THE COMMITTEE INCORPORATED THE
LETTER FROM THE COMMISSION, THE ADVISORY OPINION OF THE COMPTROLLER
GENERAL, AND A LETTER DATED FEBRUARY 14, 1938, FROM THE BUREAU OF THE
BUDGET ADVISING THAT THE PROPOSED LEGISLATION WOULD NOT BE "IN CONFLICT
WITH THE PROGRAM OF THE PRESIDENT."  THE COMMITTEE DRAFTED AN ENTIRELY
NEW RESOLUTION, INCORPORATING THE LANGUAGE SUGGESTED BY THE COMMISSION,
INTENDING FOR IT TO COVER THE "GENERAL PRACTICE" OF THE GOVERNMENT IN
REGARD TO HOLIDAY PAY.  THE ONLY LEGISLATION THEN COVERING THE GENERAL
PRACTICE OF THE GOVERNMENT AS TO HOLIDAY PAY WAS THE 1885 RESOLUTION
AND AS TO IT THE COMMITTEE CATEGORICALLY DECLARED IN ITS REPORT: 

"SECTION 2 OF THE RESOLUTION PROPOSES TO REPEAL THE JOINT RESOLUTION
OF JANUARY 6, 1885 (U.S.C., TITLE 5, SEC. 86), WHICH IS AS FOLLOWS:
... "  (IT THEN SETS OUT IN FULL THE 1885 RESOLUTION.) 

FURTHERMORE, THERE IS NO INDICATION ANYWHERE IN ITS REPORT THAT ANY
PORTION OF THE 1885 RESOLUTION - MUCH LESS ANY ADMINISTRATIVE PRACTICE
THEREUNDER - WAS TO SURVIVE.  IN ADDITION TO THIS UNEQUIVOCAL STATEMENT
THAT THE PURPOSE OF THE 1938 RESOLUTION WAS TO REPEAL THE 1885 ONE, THE
COMMITTEE FURTHER REVEALED BY ITS ACTION UNDER THE RULES OF THE 75TH
CONGRESS THAT IT SO INTENDED.  THE RULES REQUIRED A COMMITTEE REPORTING
OUT A BILL REPEALING AN ACT OR PART THEREOF TO INCLUDE IN ITS REPORT
THE TEXT OF THE ACT OR PART THEREOF PROPOSED TO BE REPEALED.  THE
REPORT HERE INCLUDED THE TEXT OF THE 1885 RESOLUTION IN TOTO.  ON THE
OTHER HAND, IF IT WAS INTENDED ONLY THAT THE 1885 RESOLUTION BE
AMENDED, THE RULES REQUIRED THE COMMITTEE TO INSERT IN ITS REPORT A
COMPARATIVE PRINT OF THE PART OF THE ACT WHICH IT PROPOSED TO BE
AMENDED.  HERE NO SUCH COMPARATIVE PRINT WAS INSERTED. 

MOREOVER, THE FEW BRIEF STATEMENTS ON THE FLOOR OF THE HOUSE SHOW
NOTHING TO THE CONTRARY.  REPRESENTATIVE RAMSPECK DECLARED THAT THE
RESOLUTION "GIVES THE SAME RIGHT TO PER DIEM EMPLOYEES AS TO THE
REGULAR MONTHLY EMPLOYEES."  REPRESENTATIVE ROGERS STATED, "THIS SIMPLY
PREVENTS AN UNINTENTIONAL DISCRIMINATION."  NOTHING WAS SAID AS TO THE
1885 RESOLUTION, NOR DID ANYONE CONTEND, CONTRARY TO THE COMMITTEE
REPORT, THAT IT WAS NOT THE INTENTION TO REPEAL IT IN TOTO.  SEE 83
CONG. REC. 9466-9467. 

IT IS CONTENDED THAT THE PURPOSE OF THE 1938 RESOLUTION WAS TO
INCREASE THE NUMBER OF HOLIDAYS FOR PER DIEM EMPLOYEES TO INCLUDE THOSE
ALLOWED BY EXECUTIVE ORDER, BUT TO LEAVE INTACT THE ALLOWANCE OF DOUBLE
PAY FOR PER DIEM EMPLOYEES WHO WORKED ON THE HOLIDAYS SPECIFIED IN THE
1885 RESOLUTION.  THIS CANNOT BE CORRECT, FOR NO ONE CONTENDS THAT THE
1938 RESOLUTION DID NOT REPEAL THE 1885 RESOLUTION, AS INTERPRETED,
WITH REFERENCE TO HOLIDAY PAY ON NONWORK DAYS.  THAT BEING SO, WE
CANNOT SEE WHY THE 1885 RESOLUTION SHOULD BE REGARDED AS HAVING BEEN
LEFT UNREPEALED WITH REFERENCE TO HOLIDAY PAY ON WORK DAYS.  (FN4)
MOREOVER, RESPONDENTS' CONTENTION IS ENTIRELY UNTENABLE IN LIGHT OF THE
COMMITTEE REPORT.  CONFUSION WOULD BE CREATED RATHER THAN ELIMINATED IF
THE CONTENTION WERE ACCEPTED.  THE PURPOSE, AS SHOWN BY THE LETTERS,
THE ADVISORY OPINION, THE REPORT, AND THE STATEMENTS ON THE FLOOR OF
THE HOUSE, WAS TO ALLEVIATE DISCRIMINATIONS AS TO HOLIDAY PAY AND TO
TREAT EMPLOYEES ALIKE INSOFAR AS POSSIBLE.  THIS THE 1938 RESOLUTION
ACCOMPLISHED.  SHOULD THE RESPONDENTS' INTERPRETATION PREVAIL, IT WOULD
RESULT IN A DOUBLE STANDARD OF PAY FOR PER DIEM EMPLOYEES WORKING ON
HOLIDAYS.  ON THOSE HOLIDAYS INCLUDED IN THE 1885 RESOLUTION, THE
EMPLOYEES WOULD RECEIVE DOUBLE PAY, WHILE ON HOLIDAYS INCLUDED IN OR
CREATED PURSUANT TO THE AUTHORITY PROVIDED BY THE 1938 RESOLUTION ALONE
THEY WOULD RECEIVE ONLY SINGLE PAY.  THIS RESULT IS REQUIRED BECAUSE
THE 1938 RESOLUTION PERMITS NO HOLIDAY PAY WHEN THE EMPLOYEE IS
REQUIRED TO WORK.  WE CANNOT ATTRIBUTE SUCH ANOMALOUS RESULTS TO THE
CONGRESS.  IT IS URGED THAT OUR INTERPRETATION WOULD RESULT IN A PER
DIEM EMPLOYEE RECEIVING THE SAME PAY FOR WORKING ON A HOLIDAY AS IS
RECEIVED BY HIS FELLOW EMPLOYEE WHO IS EXCUSED FROM SO WORKING.  BUT
THIS IS NO DISCRIMINATION AS IT LIKEWISE IS VISITED UPON THE PER ANNUM
EMPLOYEE.  (FN5) 

WE NOW TURN TO OTHER INDICATIONS SUPPORTING THE POSITION THAT THE
1885 RESOLUTION WAS REPEALED.  AS WE INDICATED EARLIER, THE DOUBLE
PAYMENT FOR HOLIDAY WORK RECOGNIZED PRIOR TO THE 1938 RESOLUTION CAME
ABOUT IN 1906 THROUGH AN INTERPRETATION OF THE 1885 RESOLUTION BY THE
ASSISTANT COMPTROLLER OF THE TREASURY.  THIS RULING WAS RECOGNIZED BY
ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT UNTIL AUGUST 1938, WHEN
THE COMPTROLLER GENERAL HELD THAT THE 1885 RESOLUTION HAD BEEN REPEALED
BY THE 1938 RESOLUTION AND GRATUITY PAY FOR HOLIDAYS WAS NO LONGER A
RIGHT OF PER DIEM EMPLOYEES.  (FN6) THIS OPINION WAS FOLLOWED
CONSISTENTLY BY ALL OF THE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 
IN THIS REGARD IT IS OF IMPORTANCE TO NOTE THAT SEVERAL EFFORTS WERE
MADE TO REPEAL THIS INTERPRETATION BY SPECIFIC ACT OF CONGRESS, BUT IN
EACH INSTANCE THE BILL FAILED TO PASS.  (FN7)  THIS CONTEMPORANEOUS
INTERPRETATION OF THE 1938 RESOLUTION BY THE AGENCY CHARGED WITH ITS
SUPERVISION - AN INTERPRETATION FOLLOWED BY ALL AGENCIES OF THE
GOVERNMENT - TOGETHER WITH ACQUIESCENCE OF THE CONGRESS, MUST BE GIVEN
GREAT WEIGHT. 

LIKEWISE IT IS NOTED THAT THE HOUSE COMMITTEE ON THE REVISION OF LAWS
HAS SIMILARLY TREATED THE 1938 RESOLUTION.  IN THE 1940 AND 1946
RECODIFICATIONS OF THE U.S.C. THE 1885 RESOLUTION IS LISTED AS BEING
REPEALED BY THE LATER RESOLUTION OF 1938.  AGAIN IN THE 1952 EDITION OF
THE CODE THE 1885 RESOLUTION IS NOT ONLY LISTED AS REPEALED BUT ITS
ENTIRE TEXT IS OMITTED FROM THE CODE.  AN EXPLANATORY NOTATION STATES
THAT THIS RESOLUTION WAS REPEALED AND IS NOW COVERED BY SEC. 86A WHICH
IS THE 1938 RESOLUTION. 

AS WE NOTED EARLIER, THIS CASE IS NOT DISPOSED OF BY UNITED STATES V.
KELLY, 342 U.S. 193, AND NOTHING IN KELLY LENDS SUPPORT TO THE
EMPLOYEES' ARGUMENT HERE.  KELLY WAS A PRINTER EMPLOYED AT THE
GOVERNMENT PRINTING OFFICE.  THE WAGES OF EMPLOYEES IN KELLY'S OFFICE
WERE FIXED BY A COLLECTIVE-BARGAINING AGREEMENT PURSUANT TO THE ACT OF
JUNE 7, 1924, 43 STAT. 658.  THIS ACT, THOUGH AMENDED, REMAINED IN
EFFECT AS TO THE PROVISIONS INVOLVED HERE AT THE TIME OF KELLY'S
CLAIM.  THE CONTRACT KELLY SUED ON WAS ENTERED INTO BY THE GOVERNMENT
UNDER THIS ACT.  WE SAID THE PROBLEM WAS "WHETHER THE 1938 RESOLUTION
SOMEHOW PRECLUDES THE AWARDING OF THE GRATUITY PAY WHICH THE AGREEMENT
SO MADE SEEMS TO GRANT."  342 U.S., AT 194.  WE HELD THAT "SINCE THE
AGREEMENT PROVIDED FOR GRATUITY PAY FOR HOLIDAYS WORKED, KELLY WAS
ENTITLED TO SUCH PAY."  (FN8)  THE AWARD TO KELLY, THEN, WAS SOLELY ON
THE BASIS OF THE COLLECTIVE-BARGAINING AGREEMENT.  HERE THERE IS NO
SUCH AGREEMENT.  THERE IS NOTHING ON WHICH THE EMPLOYEES CAN RELY WHICH
AFFIRMATIVELY GRANTS THE DOUBLE PAY THEY CLAIM. 

THE JUDGMENT OF THE COURT OF CLAIMS IS, THEREFORE, REVERSED. 

FN1  JOINT RESOLUTION OF JUNE 29, 1938, C. 818, 52 STAT. 1246, 5
U.S.C. SEC. 86A: 

"  ...  WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE
COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK
BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE
OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY,
MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS
DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR
EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS
OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE
SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S
WORK IS PERFORMED. 

"SEC. 2.  THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C., TITLE 5,
SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE
PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH
INCONSISTENCY OR CONFLICT." 

FN2  23 STAT. 516 (1885), AS AMENDED, 24 STAT. 644 (1887), 5 U.S.C.
(1934 ED.)  SEC.  86, WHICH PROVIDES: 

"  ...  THE EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE,
BUREAU OF PRINTING AND ENGRAVING, AND ALL OTHER PER DIEM EMPLOYEES OF
THE GOVERNMENT ON DUTY AT WASHINGTON, OR ELSEWHERE IN THE UNITED STATES
SHALL BE ALLOWED THE FOLLOWING HOLIDAYS, TO WIT:  THE 1ST DAY OF
JANUARY, THE 22ND DAY OF FEBRUARY, THE DAY OF EACH YEAR WHICH IS
CELEBRATED AS 'MEMORIAL' OR 'DECORATION DAY', THE 4TH DAY OF JULY, THE
25TH DAY OF DECEMBER, AND SUCH DAYS AS MAY BE DESIGNATED BY THE
PRESIDENT AS DAYS FOR NATIONAL THANKSGIVING, AND SHALL RECEIVE THE SAME
PAY AS ON OTHER DAYS." 

FN3  THIS DOUBLE PAY RESULTED FROM INTERPRETATION OF THE 1885
RESOLUTION BY THE OFFICE OF THE COMPTROLLER OF THE TREASURY.  13 COMP.
DEC. 40.  SEE ALSO, 13 COMP. GEN. 295, 297.    FN4  IT IS TRUE THAT THE
COMPTROLLER GENERAL'S 1937 LETTER POINTED UP THE DISCRIMINATION BETWEEN
PER ANNUM AND PER DIEM EMPLOYEES ON NONWORK DAYS.  BUT, EVEN THOUGH NOT
SPECIFICALLY ADVERTED TO, IT WOULD SEEM THAT A SIMILAR DISCRIMINATION
WAS ALSO APPARENT AS TO WORK DAYS IN THAT PER ANNUM EMPLOYEES WOULD
RECEIVE NO EXTRA PAY, WHILE PER DIEM EMPLOYEES WOULD RECEIVE NOT ONLY
THEIR REGULAR WAGE BUT AN EQUAL AMOUNT AS HOLIDAY PAY. 

FN5  MOREOVER, THE SCHEDULE OF WAGES HERE PROVIDED FOR 50% ADDITIONAL
PAY FOR WORK REQUIRED ON HOLIDAYS NOT INCLUDED IN THE REGULAR TOUR OF
DUTY AND 125% ADDITIONAL FOR WORK IN EXCESS OF EIGHT HOURS ON SUCH
DAYS.    FN6  18 COMP. GEN. 10, 13; 18 COMP. GEN. 186. 

FN7  H.J. RES. 303, 76TH CONG., 1ST SESS.; H.R. 1386, 77TH CONG., 1ST
SESS.; S. 1930, 77TH CONG., 1ST SESS.; H.R. 6222, 77TH CONG., 1ST
SESS.; S. 1679, 79TH CONG., 2D SESS. 

THE POLICY OF ALLOWING GRATUITY PAY FOR HOLIDAYS WORKED IN PEACETIME
AND OF PROHIBITING IT IN WARTIME IS REFLECTED IN A SECTION OF THE
FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT.  298, 5 U.S.C. SEC. 922. 
THIS SECTION PROVIDED FOR GRATUITY PAY FOR HOLIDAYS WORKED BUT WAS NOT
TO GO INTO EFFECT UNTIL THE CESSATION OF HOSTILITIES IN WORLD WAR II.
BY IMPLICATION THEN, THERE WAS NO GRATUITY PAY ALLOWED BY STATUTE FOR
HOLIDAYS WORKED DURING WARTIME. 

FN8  KELLY ALSO CLAIMED UNDER A JOINT RESOLUTION.  THE RESOLUTION OF
1885 PROVIDED FOR "GRATUITY PAY" FOR HOLIDAYS FOR ALL GOVERNMENT PER
DIEM EMPLOYEES.  A JOINT RESOLUTION OF 1895 REFERRING SPECIFICALLY TO
GOVERNMENT PRINTING OFFICE EMPLOYEES IS SUBSTANTIALLY IDENTICAL IN
REGARD TO HOLIDAY PAY WITH THE 1885 RESOLUTION.  THE KELLY CASE WAS
CONSIDERED ON THE BASIS OF THE 1895 RESOLUTION, BUT THE COURT WAS NOT
REQUIRED TO DETERMINE WHETHER KELLY WAS ENTITLED TO ANY PAY UNDER THAT
RESOLUTION. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
FRANKFURTER CONCUR, DISSENTING. 

THE ISSUE BEFORE US IS PURELY ONE OF STATUTORY CONSTRUCTION.  FOR THE
REASONS HEREAFTER STATED, WE BELIEVE THAT THE COURT HAS MISCONSTRUED
THE RESOLUTION OF 1938 BY TREATING IT AS COMPLETELY REPEALING THE
RESOLUTION OF 1885 AND ALL OTHER PRIOR HOLIDAY PAY STATUTES.  OUR
CONCLUSION IS BASED UPON (1) THE LONG-ESTABLISHED PRACTICE UNDER THE
RESOLUTION OF 1885, AS AMENDED, OF ALLOWING A FULL DAY'S GRATUITY PAY
TO PER DIEM EMPLOYEES ON HOLIDAYS, WHETHER OR NOT THOSE EMPLOYEES ALSO
RECEIVED PAY FOR SERVICES ACTUALLY RENDERED ON THOSE DAYS; (2) THE
LANGUAGE OF THE 1938 RESOLUTION; (3) THE CIRCUMSTANCES WHICH LED TO THE
PRESENTATION OF THE 1938 RESOLUTION; AND (4) THE LEGISLATIVE HISTORY OF
ITS CONSIDERATION BY CONGRESS. 

THE JOINT RESOLUTION OF JANUARY 6, 1885, 23 STAT. 516, 5 U.S.C. (1934
ED.)  SEC.  86, PROVIDED: 

"THAT THE EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE,
BUREAU OF PRINTING AND ENGRAVING, AND ALL OTHER PER DIEM EMPLOYEES OF
THE GOVERNMENT ON DUTY AT WASHINGTON, OR ELSEWHERE IN THE UNITED
STATES, SHALL BE ALLOWED THE FOLLOWING HOLIDAYS, TO WIT:  THE FIRST DAY
OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE FOURTH DAY OF JULY,
THE TWENTY-FIFTH DAY OF DECEMBER, AND SUCH DAYS AS MAY BE DESIGNATED BY
THE PRESIDENT AS DAYS FOR NATIONAL THANKSGIVING, AND SHALL RECEIVE THE
SAME PAY AS ON OTHER DAYS."  (FN1) 

THIS RESOLUTION WAS INTERPRETED REPEATEDLY BY THE COMPTROLLER OF THE
TREASURY, THE COMPTROLLER GENERAL OF THE UNITED STATES, AND LATER THE
COURT OF CLAIMS, AS ALLOWING THE DESIGNATED PER DIEM EMPLOYEES, ON THE
SPECIFIED HOLIDAYS, THEIR REGULAR RATE OF PAY AS A GRATUITY, WHETHER OR
NOT THEY WORKED ON THOSE DAYS.  THOSE WHO WORKED ON SUCH HOLIDAYS
RECEIVED THEIR SCHEDULED PAY FOR SUCH WORK IN ADDITION TO THE HOLIDAY
GRATUITY.  (FN2)  THE ADMINISTRATIVE PRACTICE CONFORMED TO THIS
INTERPRETATION. 

THIS INTERPRETATION AND THE REASON FOR IT IS MADE CLEAR IN THE
FOLLOWING QUOTATION FROM THE COMPTROLLER OF THE TREASURY: 

"I CAN NOT RECONCILE WITH ANY IDEAS OF EQUITY AND JUSTICE THE
PROPOSITION THAT CONGRESS EVER INTENDED BY THIS OR ANY OTHER STATUTE TO
ALLOW THE EMPLOYEES (AND WE ARE NOW SPEAKING OF PER DIEM EMPLOYEES WHO
ARE PAID FROM A LUMP SUM AND NOT A STATED, FIXED ANNUAL SALARY) A LEGAL
HOLIDAY WITH PAY, AND PLACE IT IN THE POWER OF YOURSELF OR ANY OTHER
PERSON TO CAUSE ANY SUCH EMPLOYEE TO WORK ON SUCH DAY, SUCH EMPLOYEE SO
WORKING RECEIVING JUST THE SAME AMOUNT OF PAY FOR SAID DAY AS THOSE WHO
ARE NOT COMPELLED TO WORK, AND NO MORE. 

*         *         *         *         * 

"THE LABORER IS WORTHY OF HIS HIRE AND SHOULD HAVE IT WHEN COMPELLED
TO WORK ON A HOLIDAY.  THE GIVING HIM PAY FOR SUCH A DAY WHEN HE DOES
NOT WORK IS THE FREE GIFT OF CONGRESS, AND I WILL NOT STULTIFY SUCH
GIFT BY TAKING AWAY FROM HIM HIS PAY ON A DAY FOR WHICH HE WORKED
BECAUSE CONGRESS SAW FIT TO GIVE HIM PAY FOR LEGAL HOLIDAYS WHEN HE DID
NOT WORK. 

"YOU ARE THEREFORE AUTHORIZED TO PAY TO THE EMPLOYEES NAMED THEIR
WAGES FOR WORK DONE ON THANKSGIVING DAY IN ADDITION TO THEIR PAY AS
PROVIDED BY SAID ACT OF 1895."  8 COMP. DEC. 322, 325 (1901). 

THUS, UNTIL 1938, IT WAS THE GOVERNMENT'S SETTLED PRACTICE TO ALLOW
GRATUITY PAY TO PER DIEM EMPLOYEES ON THE SPECIFIED HOLIDAYS, WHETHER
OR NOT THE EMPLOYEES PERFORMED WORK ON THOSE HOLIDAYS.  IT WAS IN THAT
SIGNIFICANT CONTEXT, LATE IN 1937, THAT THE INCIDENT OCCURRED WHICH LED
TO THE HOUSE JOINT RESOLUTION OF JUNE 29, 1938, 53 STAT. 1246, 5 U.S.C.
(1952 ED.)  SEC.  86A. 

ON DECEMBER 6, 1937, THE PRESIDENT, BY EXECUTIVE ORDER NO. 7763, 2
FED. REG. 2685, CLOSED THE GOVERNMENT OFFICES AND EXCUSED ALL
GOVERNMENT EMPLOYEES FROM WORK ON FRIDAY, DECEMBER 24, THE DAY BEFORE
CHRISTMAS.  AS DECEMBER 24 WAS NOT A HOLIDAY SPECIFIED BY THE
RESOLUTION OF 1885, AS AMENDED, THE ACTING COMPTROLLER GENERAL BY
LETTER OF DECEMBER 20, 1937, ADVISED THE SECRETARY OF THE NAVY THAT PER
DIEM EMPLOYEES OF THE NAVY DEPARTMENT WOULD NOT BE ENTITLED EITHER TO
GRATUITY OR SCHEDULED PAY FOR THAT DAY UNLESS, OF COURSE, THEY EARNED
THE LATTER BY WORKING.  THE DIFFICULTY WAS THAT THE GOVERNMENT OFFICES
HAD BEEN CLOSED BY AN EXECUTIVE ORDER WHEREAS THE RESOLUTIONS LIMITED
THE ALLOWANCE OF HOLIDAY GRATUITIES TO A LIST OF STATUTORY HOLIDAYS. 
(FN3)  THE ABOVE-MENTIONED LETTER GAVE UNQUESTIONING RECOGNITION TO THE
EXISTING STATUTORY AUTHORIZATION OF GRATUITY PAY FOR SPECIFIED
HOLIDAYS, WHETHER OR NOT ADDITIONALLY COMPENSATED LABOR WAS PERFORMED
ON THOSE DAYS.  IT CONTAINED NO SUGGESTION THAT SUCH PAYMENTS WERE
INVALID OR EVEN UNWISE, EXCEPT TO POINT OUT THAT THE EXISTING LAW
ALLOWED SUCH GRATUITIES EVEN WHEN A HOLIDAY OCCURRED ON A NONWORKDAY. 
ON THIS POINT, THE LETTER COMMENTED THAT "EVEN WHEN ANY OF SUCH
HOLIDAYS FALLS ON A NONWORKDAY (SUCH AS A SATURDAY), SUCH EMPLOYEES
RECEIVE PAY FOR THE HOLIDAY WHEN NO WORK IS PERFORMED THEREON, IN
ADDITION TO THE FULL WEEK'S PAY OTHERWISE EARNED, AND DOUBLE
COMPENSATION FOR THE DAY IF WORK IS PERFORMED THEREON."  H.R. REP. NO.
2683, 75TH CONG., 3D SESS. 5. 

WITH THIS SITUATION BEFORE HIM, REPRESENTATIVE RAMSPECK OF THE HOUSE
COMMITTEE ON CIVIL SERVICE INTRODUCED HOUSE JOINT RESOLUTION 551
PROVIDING THAT THE "EMPLOYEES  ...  WHO WERE EXCUSED FROM DUTY ON
DECEMBER 24, 1937, BY THE EXECUTIVE ORDER OF DECEMBER 6, 1937, SHALL
RECEIVE COMPENSATION FOR DECEMBER 24, 1937, ANY LAW OR REGULATION TO
THE CONTRARY NOTWITHSTANDING."  SEE 83 CONG. REC. 9466. 

THIS WAS REFERRED TO THE CIVIL SERVICE COMMISSION WHICH RETURNED IT
WITH THE SUGGESTED SUBSTITUTE WHICH LATER BECAME THE RESOLUTION OF
1938.  THE COMMISSION EXPLAINED THE NEED FOR THE SUBSTITUTE AS
FOLLOWS: 

"IT IS BELIEVED THAT THE PRESIDENT HAD IN VIEW THAT THE BENEFITS OF
THE HOLIDAY BE ACCORDED TO ALL CLASSES OF EMPLOYEES TO THE GREATEST
EXTENT POSSIBLE.  THE ACCOUNTING AUTHORITIES, HOWEVER, HAVE HELD THAT
IN THE ABSENCE OF SPECIFIC LEGISLATION THE REGULAR EMPLOYEES OF THE
FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER
HOUR, OR ON A PIECE-WORK BASIS LOSE PAY FOR THAT DAY.  THIS HAS
RESULTED IN DISCRIMINATION AGAINST THESE GROUPS OF FEDERAL EMPLOYEES. 

"THE PROPOSED JOINT LEGISLATION PROVIDES FOR THE PAYMENT OF
COMPENSATION TO THESE EMPLOYEES TO COVER THE SINGLE DAY, DECEMBER 24,
1937; BUT THERE IS THE BROADER QUESTION INVOLVED OF SECURING STATUTORY
AUTHORITY FOR SUCH PAYMENTS AS A GENERAL PRACTICE AND THUS OBVIATE THE
NECESSITY FOR SPECIAL RESOLUTIONS BY CONGRESS.  SUCH A RESOLUTION, FOR
EXAMPLE, WAS REQUIRED LAST YEAR TO PROVIDE PAYMENT FOR THESE SAME
CLASSES OF EMPLOYEES IN WASHINGTON, D.C., WHO WERE EXCUSED FROM DUTY ON
JANUARY 20, 1937, THE DATE OF THE INAUGURATION OF THE PRESIDENT. 

"IT IS BELIEVED THAT GENERAL LEGISLATION IN THE FOLLOWING PHRASEOLOGY
WOULD GIVE PERMANENT STATUTORY AUTHORITY FOR PAYMENTS UNDER THE
CIRCUMSTANCES INDICATED: 

"'HEREAFTER, WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT,
WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE
WORK BASIS, ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF
THE OCCURRENCE OF A HOLIDAY, SUCH AS NEW YEAR'S DAY, WASHINGTON'S
BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY,
CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE
OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND
ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY
SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN
ORDINARY DAY'S WORK IS PERFORMED. 

"'SEC. 2.  THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C., TITLE 5,
SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE
PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH
INCONSISTENCY OR CONFLICT.'"  H.R. REP. NO. 2683, 75TH CONG., 3D SESS.
2.  (FN4) 

THE LETTERS, CONSTITUTING THE COMMITTEE REPORT, THUS POINTED TO THE
FOLLOWING CHANGES TO BE ACCOMPLISHED BY THE NEW RESOLUTION: 

1.  EXTEND THE GRATUITY TO INCLUDE NOT ONLY STATUTORY HOLIDAYS BUT
ALSO ANY HOLIDAYS AND OTHER NONWORKDAYS PRESCRIBED BY EXECUTIVE ORDER. 

2.  EXTEND THE GRATUITY TO COVER ALL "REGULAR EMPLOYEES OF THE
FEDERAL GOVERNMENT, WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER
HOUR, OR ON A PIECE WORK BASIS  ...  ."  IBID. 

THE ABOVE EXTENSIONS FOLLOWED THE SUGGESTION OF THE CIVIL SERVICE
COMMISSION THAT THE NEW RESOLUTION SHOULD ANSWER "THE BROADER QUESTION
INVOLVED OF SECURING STATUTORY AUTHORITY FOR SUCH PAYMENTS AS THAT OF
DECEMBER 24, 1937 AS A GENERAL PRACTICE AND THUS OBVIATE THE NECESSITY
FOR SPECIAL RESOLUTIONS BY CONGRESS."  IBID. 

THE NEW RESOLUTION ALSO MET THE IMPLIED CRITICISM RELATING TO THE
ALLOWANCE OF GRATUITIES FOR HOLIDAYS OCCURRING ON OTHER THAN WORKDAYS. 
IT DID THIS BY EXPRESSLY LIMITING GRATUITY ALLOWANCES TO THOSE DAYS ON
WHICH THE EMPLOYEES "ARE RELIEVED OR PREVENTED FROM WORKING SOLELY
BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY  ...  ." 
52 STAT. 1246.  IT THUS EXCLUDED HOLIDAYS WHEN THE RELIEF FROM WORK WAS
DUE IN PART TO THE DAY NOT BEING A WORKDAY WITHOUT REGARD TO ITS
DESIGNATION AS A HOLIDAY. 

THE FEW BRIEF STATEMENTS MADE BY THE SPONSOR OF THE RESOLUTION,
REPRESENTATIVE RAMSPECK, AT THE TIME OF ITS ADOPTION, CONFIRM THE VIEW
THAT THE RESOLUTION WAS MERELY A CORRECTIVE MEASURE INTENDED TO AID
"THE LOWEST-PAID GROUP OF EMPLOYEES IN THE GOVERNMENT SERVICE," RATHER
THAN A MEASURE DESIGNED TO ABOLISH SUBSTANTIAL BENEFITS ENJOYED BY PER
DIEM LABORERS UNDER A 50-YEAR-OLD GOVERNMENTAL PRACTICE.  (FN5) 

IT IS HARDLY CONCEIVABLE THAT, IF EITHER THE SPONSOR OF THIS
RESOLUTION OR THE COMMITTEE RECOMMENDING ITS ADOPTION HAD SEEN IN IT
THE DEPRIVATION OF PAY NOW CONTENDED FOR BY THE GOVERNMENT, THE SPONSOR
OR THE COMMITTEE WOULD NOT HAVE MENTIONED THAT EFFECT IN THE
PRESENTATION OF THE MEASURE.  THE ABSENCE OF ANY SUCH MENTION IS
ELOQUENT TESTIMONY THAT THE RESOLUTION HAD NO SUCH MEANING.  IT IS
EQUALLY INCONCEIVABLE THAT CONGRESS WOULD UNANIMOUSLY REDUCE THE PAY OF
THE GOVERNMENT'S LOWEST PAID EMPLOYEES SUB SILENTIO.  READ IN ITS
CONTEXT, AND IN THE LIGHT OF THE EXPLANATION, MADE ON THE FLOOR, THAT
THIS RESOLUTION SOUGHT "SIMPLY TO CORRECT" SUCH A SITUATION AS THAT
WHICH OCCURRED ON CHRISTMAS EVE, AND TO PREVENT AN UNINTENTIONAL
DISCRIMINATION AGAINST PER DIEM EMPLOYEES, IT IS DIFFICULT TO READ INTO
THE RESOLUTION THE MEANING, CONTRARY TO THEIR INTERESTS, FOR WHICH THE
GOVERNMENT NOW CONTENDS. 

THE FACT THAT, AT THE TIME THE 1938 RESOLUTION WAS ENACTED, IT WAS
THE GENERAL PRACTICE OF PRIVATE INDUSTRY TO PAY SOME TYPE OF PREMIUM
PAY FOR HOLIDAYS WORKED EMPHASIZES THE UNLIKELIHOOD OF THE
INTERPRETATION CONTENDED FOR BY THE GOVERNMENT.  IN KELLY V. UNITED
STATES, 119 CT. CL. 197, 209, 96 F. SUPP. 611, 614, THE COURT OF
CLAIMS, IN INTERPRETING THE 1938 RESOLUTION, DESCRIBED THE
CIRCUMSTANCES IN THAT YEAR AS FOLLOWS: 

"WITH REGARD TO ITS PER DIEM AND PER HOUR EMPLOYEES, THE SO-CALLED
WAGE BOARD EMPLOYEES, THE GOVERNMENT IS IN COMPETITION WITH PRIVATE
EMPLOYERS, AND ATTEMPTS TO KEEP ITS WAGES AND WORKING CONDITIONS IN
STEP WITH THOSE IN PRIVATE ENTERPRISE.  IT IS COMPLETELY UNTHINKABLE
THAT THE OWNER OF A PRINTING SHOP COULD, BY PRACTICE, OR BY CONTRACT,
MAINTAIN THE POLICY AS TO HOLIDAY PAY WHICH THE GOVERNMENT HERE SEEKS
TO ATTRIBUTE TO CONGRESS.  SUCH AN EMPLOYER MIGHT, AND MANY EMPLOYERS
DID, IN 1938, HAVE A POLICY OF NOT PAYING FOR HOLIDAYS NOT WORKED.  IF
THE HOLIDAY WAS WORKED, IT WAS PAID FOR.  SOME SUCH EMPLOYERS THEN, AND
MOST OF THEM NOW (1951) HAVE CONTRACTS WITH THEIR EMPLOYEES PROVIDING
FOR PAID HOLIDAYS, BUT IN ALL SUCH CONTRACTS THERE IS A PROVISION THAT
IF THE HOLIDAY IS IN FACT WORKED, IT WILL BE PAID FOR AGAIN, USUALLY AT
PREMIUM PAY, AND IN ADDITION TO THE HOLIDAY PAY.  BUT IN NO CASE WHICH
WE HAVE HEARD OF, OR CAN IMAGINE, COULD AN EMPLOYER MAINTAIN A PRACTICE
WHEREBY AN EMPLOYEE WHO WORKED ON A HOLIDAY RECEIVED MERELY THE SAME
PAY AS ONE WHO DID NOT WORK."  (FN6)    THE FOREGOING CHANGES IN THE
EXISTING LAW RETAINED ITS GENERAL PATTERN.  THEY CLARIFIED BOTH THE
CLASSES OF PER DIEM EMPLOYEES ENTITLED TO A HOLIDAY GRATUITY, AND THE
OCCASIONS WHEN THAT GRATUITY WAS TO BE PAYABLE.  NOWHERE IN THE
RESOLUTION OR IN ITS LEGISLATIVE HISTORY IS THERE ANY EXPRESS STATEMENT
OF THE GOVERNMENT'S PRESENT CONTENTION THAT AN EMPLOYEE WHO COMES
WITHIN THE STATUTORY CLASSIFICATION OF ELIGIBILITY FOR THE HOLIDAY
GRATUITY IS DEPRIVED OF IT IF HE PERFORMS SOME COMPENSATED LABOR FOR
THE GOVERNMENT ON THE HOLIDAY IN QUESTION.    THE GOVERNMENT EMPHASIZES
THE PHRASE, ADDED IN 1938, WHICH STATES THAT ITS REGULAR PER DIEM
EMPLOYEES SHALL RECEIVE HOLIDAY PAY "WHENEVER THEY ARE RELIEVED OR
PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY
...  ."  THIS IS INTERPRETED BY THE COURT OF CLAIMS AS ELIMINATING
GRATUITY PAY FOR THOSE HOLIDAYS WHICH OCCUR ON NONWORKDAYS.  IT DOES
THIS APTLY BECAUSE THE OCCURRENCE OF A HOLIDAY ON A NONWORKDAY
OBVIOUSLY IS NOT THE SOLE CAUSE PREVENTING PER DIEM EMPLOYMENT ON THOSE
DAYS.  THE GOVERNMENT, HOWEVER, SUGGESTS THAT THIS CLAUSE ALSO MEANS
THAT IF A PER DIEM EMPLOYEE, WHO BECOMES ENTITLED TO GRATUITY PAY
SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY ON A WORKDAY,
NEVERTHELESS RESPONDS TO A CALL TO WORK ON THAT DAY, HE LOSES THE
GRATUITY.  SUCH AN INTERPRETATION DISCRIMINATES AGAINST THE LOYAL
HOLIDAY WORKER. 

MOREOVER, SUCH AN INTERPRETATION PRODUCES THE INEQUITABLE RESULT THAT
AN EMPLOYEE WHO WORKS ON A HOLIDAY RECEIVES NO MORE PAY THAN AN
EMPLOYEE WHO IS NOT REQUIRED TO WORK ON THE SAME HOLIDAY. 

CONCEDEDLY, THIS WAS NOT SO BEFORE 1938.  AT LEAST UNTIL THEN THE
1885 RESOLUTION WAS RECOGNIZED AS AUTHORIZING GRATUITY PAY FOR
HOLIDAYS, WHETHER OR NOT WORK WAS PERFORMED ON THOSE DAYS. 
ACCORDINGLY, IN 1938, IT WOULD HAVE BEEN A SIMPLE THING TO REPEAL THE
1885 RESOLUTION OUTRIGHT IF THAT RESULT WERE INTENDED.  INSTEAD OF
DOING SO, THE REPEALING SECTION IN THE 1938 RESOLUTION EXPRESSLY
LIMITED ITSELF TO THE INCONSISTENCIES AND CONFLICTS BETWEEN, ON THE ONE
HAND, THE NEW RESOLUTION AND, ON THE OTHER, THE 1885 RESOLUTION AND
"ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS" OF THE
NEW RESOLUTION.  SUCH A LIMITED REPEAL WELL REFLECTS THE ABOVE-RECITED
LEGISLATIVE HISTORY.  IT SHOWS THE CHARACTER OF THE NEW RESOLUTION TO
BE THAT OF CORRECTIVE LEGISLATION IN THE INTERESTS OF THE LABORERS.  TO
BE SURE, THE HOUSE COMMITTEE REPORT IN ITS TREATMENT OF SEC. 2 OF THE
NEW RESOLUTION DID SET FORTH THE TEXT OF THE 1885 RESOLUTION AS THAT OF
THE RESOLUTION CITED IN THAT REPEALING SECTION.  THAT RECITAL IS NOT
SUFFICIENT TO CHANGE THE SPECIFICALLY RESTRICTED REPEALING CLAUSE INTO
AN OUTRIGHT REPEAL IN THE FACE OF ITS EXPRESS LIMITATION TO
INCONSISTENCIES AND CONFLICTS. 

THE RESOLUTIONS OF 1885 AND 1938 ARE IN PARI MATERIA AND SHOULD BE
READ TOGETHER.  WHEN SO READ, THERE IS NO BASIS FOR TREATING
DIFFERENTLY THE SEVERAL HOLIDAYS SPECIFIED IN THE RESOLUTIONS.  NO
"DOUBLE STANDARD" RESULTS.  THE 1938 RESOLUTION EXPANDS THE STATUTORY
LIST OF HOLIDAYS TO INCLUDE VARIOUS OTHER DAYS THAT MIGHT BE DESIGNATED
BY EXECUTIVE ORDERS.  NONE OF THE ORIGINAL LIST ARE EXCLUDED. 

PETITIONER CITES NO JUDICIAL DECISION UPHOLDING ITS INTERPRETATION. 
THE COURT OF CLAIMS HAS TWICE REJECTED IT AND TAKEN THE OPPOSITE VIEW. 
(FN7) 

PETITIONER CITES AS AUTHORITY FOR ITS POSITION THE BRIEF RULINGS OF
THE COMPTROLLER GENERAL UNDER THE 1938 RESOLUTION.  WITHOUT REVIEWING
THE MATERIAL WHICH HAS INFLUENCED THE COURT OF CLAIMS, THOSE RULINGS
ASSUME, WITHOUT DISCUSSION OR JUDICIAL SUPPORT, THAT THE RESOLUTION OF
1938 COMPLETELY REPEALED THE RESOLUTION OF 1885.  SEE 18 COMP. GEN. 10,
16, 186, 191 (1938).  THE TREATMENT OF THE AMENDMENT IN THE PUBLICATION
OF THE U.S.C. IS NOT CONTROLLING AND CITES NO JUDICIAL AUTHORITY. 

IN UNITED STATES V. KELLY, 342 U.S. 193, WE HELD THAT PER DIEM
EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WERE ENTITLED TO THE
GRATUITY PAY GUARANTEED BY THEIR COLLECTIVE-BARGAINING AGREEMENT.  WE
ALSO SAID EXPRESSLY THAT THE 1938 RESOLUTION "WAS SILENT ON THE SUBJECT
OF GRATUITY PAY FOR HOLIDAYS ON WHICH WORK WAS PERFORMED."  ID., AT
195.  THE KELLY CASE THUS SHOWS THAT, AT THE VERY LEAST, THE GRATUITY
POLICY OF THE 1885 RESOLUTION IS NOT PROHIBITED AFTER 1938. 
ACCORDINGLY, IT WOULD BE CONSISTENT WITH THAT CASE TO UPHOLD THE COURT
OF CLAIMS IN THE INSTANT CASE.  THE COLLECTIVE-BARGAINING CONTRACT IN
THE KELLY CASE WAS DECLARATORY OF, NOT CONTRARY TO, THE POLICY OF THE
1885 RESOLUTION. 

FOR THE FOREGOING REASONS, THE JUDGMENT OF THE COURT OF CLAIMS SHOULD
BE AFFIRMED. 

FN1  IN 1887 A FIFTH HOLIDAY WAS ADDED - MEMORIAL DAY.  JOINT
RESOLUTION OF FEBRUARY 23, 1887, 24 STAT. 644.  FOR AN EARLIER SIMILAR
PROVISION, APPLICABLE ONLY TO EMPLOYEES OF THE GOVERNMENT PRINTING
OFFICE, SEE 21 STAT. 304.  A SUBSEQUENT LIKE PROVISION FOR SUCH
EMPLOYEES, THE ACT OF JANUARY 12, 1895, 28 STAT. 601, 607, WAS
"CONSISTENTLY ADMINISTERED AS PROVIDING FOR GRATUITY PAY IN ADDITION TO
REGULAR COMPENSATION IF THE EMPLOYEE WORKED ON A HOLIDAY."  UNITED
STATES V. KELLY, 342 U.S. 193, 195. 

FN2  SEE 8 COMP. DEC. 322 (1901); 13 COMP. DEC. 40 (1906); 21 COMP.
DEC. 566 (1915); 22 COMP. DEC. 404 (1916); 24 COMP. DEC. 218 (1917); 24
COMP. DEC. 529 (1918); 3 COMP. GEN.  411 (1924); AND 15 COMP. GEN. 809
(1936).  SEE ALSO, KELLY V. UNITED STATES, 119 CT. CL.  197, 206-207,
96 F. SUPP. 611, 612-613. 

FN3  THE LETTER OF DECEMBER 20, 1937, APPEARS IN FULL IN H.R. REP.
NO. 2683, 75TH CONG., 3D SESS. 3-5, RELATING TO HOUSE JOINT RESOLUTION
551, LATER APPROVED JUNE 29, 1938, AND NOW BEFORE US. 

FN4  FOR THE OFFICIAL TEXT OF THE RESOLUTION AS APPROVED JUNE 29,
1938, SEE 52 STAT. 1246, 5 U.S.C. (1952 ED.)  SEC.  86A. 

FN5  THE FOLLOWING COMPRISES NEARLY ALL THAT WAS SAID ABOUT THE
RESOLUTION ON THE FLOOR OF THE HOUSE. 

"MR. O'MALLEY.  ...  WHAT DOES THIS COVER? 

"MR. RAMSPECK.  THIS COVERS THE LOWEST-PAID GROUP OF EMPLOYEES IN THE
GOVERNMENT SERVICE.  IT IS THOSE WHO WORK ON A PER DIEM BASIS.  FOR
INSTANCE, LAST CHRISTMAS EVE THE PRESIDENT EXCUSED ALL GOVERNMENT
EMPLOYEES FROM RENDERING ANY SERVICE.  HIS EXECUTIVE ORDER, OF COURSE,
APPLIED TO EVERY EMPLOYEE IN THE GOVERNMENT SERVICE.  THOSE WHO ARE
WORKING ON A MONTHLY SALARY GOT THEIR PAY FOR CHRISTMAS EVE, BUT THOSE
WHO WORK ON A PER DIEM WERE FORCED TO TAKE THE DAY OFF, AND THEY LOST
THE DAY'S PAY.  THIS IS SIMPLY TO CORRECT THAT SITUATION. 

     *         * *         *         * 

"MR. COLLINS.  WHAT DOES IT HAVE TO DO WITH? 

"MR. RAMSPECK.  IT COVERS ONLY THOSE CASES WHERE THE PRESIDENT BY
EXECUTIVE ORDER EXCUSES EMPLOYEES FROM A DAY'S WORK.  IT GIVES THE SAME
RIGHT TO PER DIEM EMPLOYEES AS TO THE REGULAR MONTHLY EMPLOYEES. 

     *         *         *     *         * 

"MRS. ROGERS OF MASSACHUSETTS.  THIS SIMPLY PREVENTS AN UNINTENTIONAL
DISCRIMINATION. 

"MR. RAMSPECK.  THAT IS CORRECT.  THE PER DIEM EMPLOYEES ARE
UNINTENTIONALLY DISCRIMINATED AGAINST."  83 CONG. REC. 9466. 

FN6  SEE ALSO, A STUDY ENTITLED "PERSONNEL PRACTICES GOVERNING
FACTORY AND OFFICE ADMINISTRATION," PREPARED IN 1937 BY F. BEATRICE
BROWER FOR THE NATIONAL INDUSTRIAL CONFERENCE BOARD, INC., NEW YORK
CITY.  THIS COVERED ABOUT 450 INDUSTRIAL CONCERNS EMPLOYING WAGE
EARNERS TOTALING ABOUT 370,000.  (P. 2.)  OVER 60% OF SUCH COMPANIES
PAID SOME TYPE OF PREMIUM OR GRATUITY TO THEIR WAGE EARNERS FOR WORK
PERFORMED ON SUNDAYS OR HOLIDAYS, THE EXTRA PAY RANGING FROM 25% TO
100%, IN ADDITION TO THE REGULAR RATE OF PAY.  (PP. 36-37.) 

FN7  KELLY V. UNITED STATES (TWO JUDGES DISSENTING), 119 CT. CL. 197,
96 F. SUPP. 611, AFF'D ON OTHER GROUNDS, UNITED STATES V. KELLY, 342
U.S. 193; AND THE INSTANT CASE, BERGH V. UNITED STATES (ONE JUDGE
DISSENTING), 132 CT. CL. 564, 132 F. SUPP. 462.  SEE ALSO, ADAMS V.
UNITED STATES, 42 CT. CL. 191, 212-213. 
..END :










BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION V. PARNELL 352 U.S.
29 


NO. 21.  ARGUED OCTOBER 18, 1956 - DECIDED NOVEMBER 13, 1956 - 226 F.2D
297, REVERSED AND REMANDED. 


ALLEGING DIVERSITY OF CITIZENSHIP, PETITIONER, A BANK IN CALIFORNIA,
SUED IN A FEDERAL DISTRICT COURT IN PENNSYLVANIA TO RECOVER THE VALUE
OF CERTAIN BONDS ALLEGED TO HAVE BEEN CONVERTED IN PENNSYLVANIA.  THEY
WERE BEARER BONDS OF THE HOME OWNERS' LOAN CORPORATION, GUARANTEED BY
THE UNITED STATES, MATURING IN 1952 BUT CALLED FOR REDEMPTION IN 1944. 
THEY DISAPPEARED FROM PETITIONER'S POSSESSION IN 1944, AND RESPONDENT
PARNELL, ACTING FOR ONE ROCCO, PRESENTED THEM IN 1948 TO RESPONDENT
BANK IN PENNSYLVANIA, WHICH COLLECTED THE PROCEEDS AND PAID THEM TO
PARNELL, WHO PAID THEM TO ROCCO.  ON THE THEORY THAT STATE LAW
GOVERNED, THE DISTRICT COURT INSTRUCTED THE JURY THAT RESPONDENTS HAD
THE BURDEN OF SHOWING THAT THEY TOOK THE BONDS IN GOOD FAITH, WITHOUT
KNOWLEDGE OR NOTICE OF DEFECT IN TITLE.  VERDICTS AND JUDGMENTS WERE
FOR PETITIONER; BUT THE COURT OF APPEALS REVERSED ON THE GROUND THAT,
UNDER FEDERAL LAW, THE BONDS WERE NOT "OVERDUE" WHEN PRESENTED TO
RESPONDENT BANK AND PETITIONER HAD THE BURDEN OF SHOWING NOTICE AND
LACK OF GOOD FAITH ON THE PART OF RESPONDENTS.  HELD:  THE JUDGMENT OF
THE COURT OF APPEALS IS REVERSED AND THE CASE IS REMANDED TO THAT COURT
FOR FURTHER PROCEEDINGS.  PP. 30-34. 

(A)  THIS LITIGATION IS PURELY BETWEEN PRIVATE PARTIES, IT DOES NOT
TOUCH THE RIGHTS AND DUTIES OF THE UNITED STATES, AND THE ISSUES OF
BURDEN OF PROOF AND GOOD FAITH ARE GOVERNED BY THE LAW OF PENNSYLVANIA,
WHERE THE TRANSACTIONS TOOK PLACE.  CLEARFIELD TRUST CO. V. UNITED
STATES, 318 U.S. 363, DISTINGUISHED.  PP. 32-34. 

(B)  THAT THE FLOATING OF SECURITIES BY THE UNITED STATES MIGHT BE
ADVERSELY AFFECTED BY THE LOCAL RULE OF A PARTICULAR STATE REGARDING
THE LIABILITY OF A CONVERTER IS TOO SPECULATIVE AND REMOTE A
POSSIBILITY TO JUSTIFY THE APPLICATION OF FEDERAL LAW TO TRANSACTIONS
ESSENTIALLY OF LOCAL CONCERN.  PP. 33-34. 

(C)  A DECISION WITH RESPECT TO THE "OVERDUENESS" OF THE BONDS IS A
MATTER OF FEDERAL LAW.  P. 34. 

(D)  THE CIRCUMSTANCES OF THESE CASES REQUIRE REVERSAL OF THE
JUDGMENTS OF THE COURT OF APPEALS BUT NOT REINSTATEMENT OF THE
JUDGMENTS OF THE DISTRICT COURT.  P. 34. 

BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION V. PARNELL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT.* 

*TOGETHER WITH NO. 22, BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION V. FIRST NATIONAL BANK IN INDIANA, ALSO ON CERTIORARI TO
THE SAME COURT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER, ALLEGING DIVERSITY OF CITIZENSHIP, BROUGHT SUIT IN THE
DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ALLEGING THAT
IN SEPTEMBER AND OCTOBER 1948 TWO INDIVIDUAL DEFENDANTS, PARNELL AND
ROCCO, AND TWO CORPORATE DEFENDANTS, THE FIRST NATIONAL BANK IN INDIANA
AND THE FEDERAL RESERVE BANK OF CLEVELAND, HAD CONVERTED 73 HOME
OWNERS' LOAN CORPORATION BONDS WHICH BELONGED TO PETITIONER.  ONLY
PARNELL AND THE FIRST NATIONAL BANK ARE RESPONDENTS HERE, SINCE THE
FEDERAL RESERVE BANK WAS DISMISSED, ON ITS MOTION, AFTER PETITIONER HAD
PRESENTED ITS CASE IN THE DISTRICT COURT, AND SINCE ROCCO DID NOT
APPEAL FROM THE DISTRICT COURT'S JUDGMENT. 

AT THE TRIAL IT APPEARED THAT THESE BONDS WERE BEARER BONDS WITH
PAYMENT GUARANTEED BY THE UNITED STATES.  THEY CARRIED INTEREST COUPONS
CALLING FOR SEMI-ANNUAL PAYMENT.  THEY WERE DUE TO MATURE MAY 1, 1952,
BUT PURSUANT TO THEIR TERMS, HAD BEEN CALLED ON OR ABOUT MAY 1, 1944. 
ON MAY 2, 1944, THE BONDS DISAPPEARED WHILE PETITIONER WAS GETTING THEM
READY FOR PRESENTATION TO THE FEDERAL RESERVE BANK FOR PAYMENT.  IN
1948 THEY WERE PRESENTED TO THE FIRST NATIONAL BANK FOR PAYMENT BY
PARNELL ON BEHALF OF ROCCO.  THE FIRST NATIONAL BANK FORWARDED THEM TO
THE FEDERAL RESERVE BANK OF CLEVELAND.  IT CASHED THEM AND PAID THE
FIRST NATIONAL BANK, WHICH ISSUED CASHIER'S CHECKS TO PARNELL.  PARNELL
THEN TURNED THE PROCEEDS OVER TO ROCCO LESS A FEE - THERE WAS
CONFLICTING TESTIMONY AS TO WHETHER THE FEE WAS NOMINAL OR
SUBSTANTIAL. 

THE PRINCIPAL ISSUE AT THE TRIAL WAS WHETHER THE RESPONDENTS TOOK THE
BONDS IN GOOD FAITH, WITHOUT KNOWLEDGE OR NOTICE OF THE DEFECT IN
TITLE.  ON THIS ISSUE THE TRIAL JUDGE CHARGED: 

"AS I HAVE INDICATED, HOWEVER, IN THE CASE - AND IF YOU FIND IN THIS
CASE THAT THE PLAINTIFF OWNED THESE BONDS, THAT THEY WERE STOLEN FROM
IT - THEN THE BURDEN OF PROOF SO FAR AS THIS PLAINTIFF IS CONCERNED IS
TO SHOW THAT FACT, THAT THESE BONDS WERE OWNED BY IT, THAT THEY WERE
LOST BY IT IN THE MANNER AS SHOWN BY ITS EVIDENCE.  THEN THE TWO
DEFENDANTS, PARNELL AND THE BANK, NOT CLAIMING TO BE OWNERS FOR VALUE,
BUT AS CONDUITS FOR REDEMPTION, MUST COME FORWARD AND THEY THEN HAVE
THE BURDEN OF SHOWING THAT THEY ACTED INNOCENTLY, HONESTLY, AND IN GOOD
FAITH  ...  ." 

THE JURY BROUGHT IN VERDICTS FOR PETITIONER AGAINST BOTH
RESPONDENTS.  ON APPEAL, THE COURT OF APPEALS FOR THE THIRD CIRCUIT,
THE SEVEN CIRCUIT JUDGES SITTING EN BANC, REVERSED, WITH THREE JUDGES
DISSENTING.  IT HELD THAT THE DISTRICT COURT HAD ERRED IN TREATING THE
CASE AS AN ORDINARY DIVERSITY CASE AND IN REGARDING STATE LAW AS
GOVERNING THE RIGHTS OF THE PARTIES AND THE BURDEN OF PROOF.  226 F.2D
297.  IT CONSIDERED OUR DECISION IN CLEARFIELD TRUST CO. V. UNITED
STATES, 318 U.S. 363, CONTROLLING AND HELD THAT FEDERAL LAW PLACED THE
BURDEN OF PROOF ON PETITIONER TO SHOW NOTICE AND LACK OF GOOD FAITH ON
THE PART OF RESPONDENTS.  THE COURT FURTHER FOUND THAT THERE WAS NO
EVIDENCE OF BAD FAITH BY THE FIRST NATIONAL BANK SINCE THE BONDS WERE
NOT "OVERDUE" AS A MATTER OF FEDERAL LAW WHEN PRESENTED TO IT AND
THEREFORE DIRECTED ENTRY OF JUDGMENT FOR IT.  THE COURT FOUND THAT
THERE WAS EVIDENCE OF BAD FAITH ON THE PART OF PARNELL BUT ORDERED A
NEW TRIAL BECAUSE OF THE ERRONEOUS INSTRUCTIONS. 

THE DISSENTERS AGREED IN APPLYING THE DOCTRINE OF THE CLEARFIELD
TRUST CASE TO DETERMINE THE NATURE OF THE CONTRACT AND THE RIGHTS AND
DUTIES OF THE UNITED STATES AS A PARTY BUT NOT THE RIGHTS OF PRIVATE
TRANSFEREES AMONG THEMSELVES.  THEY, LIKE THE MAJORITY, LOOKED TO
FEDERAL LAW TO DETERMINE WHETHER THE BONDS WERE "OVERDUE PAPER" WHEN
PRESENTED TO THE FIRST NATIONAL BANK.  THEY CONCLUDED THAT SINCE THE
RESPONDENT BANK KNEW OF THE CALL, AS TO IT, THE BONDS BECAME DEMAND
PAPER AND THAT THE BANK TOOK THE PAPER AN UNREASONABLE LENGTH OF TIME
AFTER MATURITY, AS ADVANCED BY THE CALL. 

IN THE VIEW OF THE DISSENTERS, STATE LAW WAS CONTROLLING WITH RESPECT
TO PROOF OF GOOD FAITH AND THE BURDEN THEREON.  THEY FOUND THAT STATE
LAW PLACED THE BURDEN OF PROOF ON RESPONDENTS TO DEMONSTRATE THEIR GOOD
FAITH, AND THAT THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S
VERDICT THAT THE BURDEN OF PROVING GOOD FAITH HAD NOT BEEN SUSTAINED
EVEN IF, WITH RESPECT TO THE RESPONDENT BANK, THE BONDS WERE NOT TO BE
REGARDED AS DEMAND PAPER TAKEN AN UNREASONABLE TIME AFTER MATURITY, AS
ADVANCED BY THE CALL. 

PETITIONER SOUGHT A WRIT OF CERTIORARI TO REVIEW THE JUDGMENTS OF THE
COURT OF APPEALS.  BECAUSE THE DETERMINATION OF THE APPLICABLE LAW
RAISED AN IMPORTANT ISSUE OF FEDERAL-STATE RELATIONS, WE GRANTED
CERTIORARI.  350 U.S. 963. 

THE DISTRICT COURT IN THIS SUIT, BASED ON DIVERSITY JURISDICTION, FOR
THE CONVERSION IN PENNSYLVANIA OF PIECES OF PAPER OF DEFINED VALUE,
DEEMED ITSELF A COURT OF PENNSYLVANIA IN WHICH, IN VIEW OF THE NATURE
OF THE CLAIM, PENNSYLVANIA LAW WOULD GOVERN.  SEE GUARANTY TRUST CO. V.
YORK, 326 U.S. 99, 108.  BUT RESPONDENTS CLAIM, AND THE COURT OF
APPEALS SUSTAINED THEM, THAT THE DECISION IN CLEARFIELD TRUST CO. V.
UNITED STATES, 318 U.S. 363, COMPELS THE APPLICATION OF FEDERAL LAW TO
THE ENTIRE CASE.  THE COURT OF APPEALS MISCONCEIVED THE NATURE OF THIS
LITIGATION IN HOLDING THAT THE CLEARFIELD TRUST CASE CONTROLLED.  IN
THAT CASE WE HELD THAT A SUIT BY THE UNITED STATES TO RECOVER ON AN
EXPRESS GUARANTY OF PRIOR ENDORSEMENTS ON A GOVERNMENT CHECK WITH A
FORGED ENDORSEMENT WAS GOVERNED BY FEDERAL LAW.  THE BASIS FOR THIS
DECISION WAS STATED WITH UNCLOUDED EXPLICITNESS: 

"THE ISSUANCE OF COMMERCIAL PAPER BY THE UNITED STATES IS ON A VAST
SCALE AND TRANSACTIONS IN THAT PAPER FROM ISSUANCE TO PAYMENT WILL
COMMONLY OCCUR IN SEVERAL STATES.  THE APPLICATION OF STATE LAW, EVEN
WITHOUT THE CONFLICT OF LAWS RULES OF THE FORUM, WOULD SUBJECT THE
RIGHTS AND DUTIES OF THE UNITED STATES TO EXCEPTIONAL UNCERTAINTY." 
318 U.S., AT 367. 

SECURITIES ISSUED BY THE GOVERNMENT GENERATE IMMEDIATE INTERESTS OF
THE GOVERNMENT.  THESE WERE DEALT WITH IN CLEARFIELD TRUST AND IN
NATIONAL METROPOLITAN BANK V. UNITED STATES, 323 U.S. 454.  BUT THEY
ALSO RADIATE INTERESTS IN TRANSACTIONS BETWEEN PRIVATE PARTIES.  THE
PRESENT LITIGATION IS PURELY BETWEEN PRIVATE PARTIES AND DOES NOT TOUCH
THE RIGHTS AND DUTIES OF THE UNITED STATES.  THE ONLY POSSIBLE INTEREST
OF THE UNITED STATES IN A SITUATION LIKE THE ONE HERE, EXCLUSIVELY
INVOLVING THE TRANSFER OF GOVERNMENT PAPER BETWEEN PRIVATE PERSONS, IS
THAT THE FLOATING OF SECURITIES OF THE UNITED STATES MIGHT SOMEHOW OR
OTHER BE ADVERSELY AFFECTED BY THE LOCAL RULE OF A PARTICULAR STATE
REGARDING THE LIABILITY OF A CONVERTER.  THIS IS FAR TOO SPECULATIVE,
FAR TOO REMOTE A POSSIBILITY TO JUSTIFY THE APPLICATION OF FEDERAL LAW
TO TRANSACTIONS ESSENTIALLY OF LOCAL CONCERN. 

WE DO NOT MEAN TO IMPLY THAT LITIGATION WITH RESPECT TO GOVERNMENT
PAPER NECESSARILY PRECLUDES THE PRESENCE OF A FEDERAL INTEREST, TO BE
GOVERNED BY FEDERAL LAW, IN ALL SITUATIONS MERELY BECAUSE IT IS A SUIT
BETWEEN PRIVATE PARTIES, OR THAT IT IS BEYOND THE RANGE OF FEDERAL
LEGISLATION TO DEAL COMPREHENSIVELY WITH GOVERNMENT PAPER.  WE DO NOT
OF COURSE FORECLOSE SUCH JUDICIAL OR LEGISLATIVE ACTION IN APPROPRIATE
SITUATIONS BY CONCLUDING THAT THIS CONTROVERSY OVER BURDEN OF PROOF AND
GOOD FAITH REPRESENTS TOO ESSENTIALLY A PRIVATE TRANSACTION NOT TO BE
DEALT WITH BY THE LOCAL LAW OF PENNSYLVANIA WHERE THE TRANSACTIONS TOOK
PLACE.  FEDERAL LAW OF COURSE GOVERNS THE INTERPRETATION OF THE NATURE
OF THE RIGHTS AND OBLIGATIONS CREATED BY THE GOVERNMENT BONDS
THEMSELVES.  A DECISION WITH RESPECT TO THE "OVERDUENESS" OF THE BONDS
IS THEREFORE A MATTER OF FEDERAL LAW, WHICH, IN VIEW OF OUR HOLDING, WE
NEED NOT ELUCIDATE. 

THIS CONCLUSION REQUIRES REVERSAL OF THE JUDGMENTS OF THE COURT OF
APPEALS BUT NOT REINSTATEMENT OF THE JUDGMENTS OF THE DISTRICT COURT. 
THE COURT OF APPEALS DID NOT ORIGINALLY CONSIDER ALL THE POINTS RAISED
BY RESPONDENTS.  MOREOVER, SINCE THE COURT OF APPEALS MISCONCEIVED THE
APPLICABLE LAW, IT IS FOR THAT COURT TO REVIEW THE JUDGMENTS OF THE
DISTRICT COURT IN THE LIGHT OF THE CONTROLLING STATE LAW.  THE COURT OF
APPEALS HAS NOT DECIDED WHAT THE GOVERNING STATE LAW ON BURDEN OF PROOF
IS, AND IT IS THE COURT WHICH SHOULD SO DECIDE.  LIKEWISE, IF STATE LAW
CASTS THE BURDEN ON RESPONDENTS TO DEMONSTRATE THEIR GOOD FAITH, IT IS
FOR THE COURT OF APPEALS TO ASSESS THE EVIDENCE IN LIGHT OF THAT
STANDARD. 

THE JUDGMENTS OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT ARE
THEREFORE REVERSED AND THE CASES ARE REMANDED TO THAT COURT FOR
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED AND REMANDED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, DISSENTING. 

WE BELIEVE THAT THE "FEDERAL LAW MERCHANT," WHICH CLEARFIELD TRUST
CO. V. UNITED STATES, 318 U.S. 363, 367, HELD APPLICABLE TO
TRANSACTIONS IN THE COMMERCIAL PAPER OF THE UNITED STATES, SHOULD BE
APPLICABLE TO ALL TRANSACTIONS IN THAT PAPER.  INDEED THE COURT SAID IN
NATIONAL METROPOLITAN BANK V. UNITED STATES, 323 U.S. 454, 456, THAT
"LEGAL QUESTIONS INVOLVED IN CONTROVERSIES OVER SUCH COMMERCIAL PAPERS
ARE TO BE RESOLVED BY THE APPLICATION OF FEDERAL RATHER THAN LOCAL
LAW."  NOT UNTIL TODAY HAS A DISTINCTION BEEN DRAWN BETWEEN SUITS BY
THE UNITED STATES ON THAT PAPER AND SUITS BY OTHER PARTIES TO IT.  BUT
THE COURT DOES NOT STOP THERE.  BECAUSE THIS IS "ESSENTIALLY A PRIVATE
TRANSACTION," IT IS TO BE GOVERNED BY LOCAL LAW.  YET THE NATURE OF THE
RIGHTS AND OBLIGATIONS CREATED BY COMMERCIAL PAPER OF THE UNITED STATES
GOVERNMENT IS SAID TO BE CONTROLLED BY FEDERAL LAW.   THUS, FEDERAL LAW
IS TO GOVERN SOME PORTION OF A DISPUTE BETWEEN PRIVATE PARTIES, WHILE
THAT PORTION OF THE DISPUTE WHICH IS "ESSENTIALLY OF LOCAL CONCERN" IS
TO BE GOVERNED BY LOCAL LAW.  THE UNCERTAINTIES WHICH INHERE IN SUCH A
DICHOTOMY ARE OBVIOUS.  CF. SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S.
205; DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249. 

THE VIRTUE OF A UNIFORM LAW GOVERNING BONDS, NOTES, AND OTHER PAPER
ISSUED BY THE UNITED STATES IS THAT IT PROVIDES A CERTAIN AND DEFINITE
GUIDE TO THE RIGHTS OF ALL PARTIES RATHER THAN SUBJECTING THEM TO THE
VAGARIES OF THE LAWS OF MANY STATES.  THE BUSINESS OF THE UNITED STATES
WILL GO ON WITHOUT THAT UNIFORMITY.  BUT THE POLICY SURROUNDING OUR
CHOICE OF LAW IS CONCERNED WITH THE CONVENIENCE, CERTAINTY, AND
DEFINITENESS IN HAVING ONE SET OF RULES GOVERNING THE RIGHTS OF ALL
PARTIES TO GOVERNMENT PAPER, AS CONTRASTED TO MULTIPLE RULES.  IF THE
RULE OF THE CLEARFIELD TRUST CASE IS TO BE ABANDONED AS TO SOME
PARTIES, IT SHOULD BE ABANDONED AS TO ALL AND WE SHOULD START AFRESH ON
THIS PROBLEM. 
..END :

















MESAROSH, ALIAS NELSON V. UNITED STATES 352 U.S. 1 


NO. 20.  ARGUED AND DECIDED OCTOBER 10, 1956 - OPINIONS DELIVERED
NOVEMBER 5, 1956 - 223 F.2D 449, REVERSED AND REMANDED TO THE DISTRICT
COURT. 


IN A FEDERAL DISTRICT COURT, PETITIONERS WERE CONVICTED OF CONSPIRING
TO VIOLATE THE SMITH ACT BY ADVOCATING THE OVERTHROW OF THE GOVERNMENT
OF THE UNITED STATES BY FORCE AND VIOLENCE.  THE COURT OF APPEALS
AFFIRMED.  WHILE A REVIEW WAS PENDING IN THIS COURT, THE SOLICITOR
GENERAL MOVED THAT THE CASE BE REMANDED TO THE DISTRICT COURT FOR A
DETERMINATION AS TO THE CREDIBILITY OF THE TESTIMONY OF ONE OF THE
GOVERNMENT WITNESSES AT THE TRIAL.  HE STATED THAT THE GOVERNMENT
BELIEVES THAT THE TESTIMONY OF THIS WITNESS AT THE TRIAL "WAS ENTIRELY
TRUTHFUL AND CREDIBLE," BUT THAT, ON THE BASIS OF INFORMATION IN ITS
POSSESSION, THE GOVERNMENT NOW HAS SERIOUS REASON TO DOUBT THE
TRUTHFULNESS OF TESTIMONY GIVEN BY THE SAME WITNESS IN OTHER
PROCEEDINGS.  PARTS OF THE TESTIMONY OF THIS WITNESS IN OTHER
PROCEEDINGS WERE POSITIVELY ESTABLISHED AS UNTRUE, AND THE SOLICITOR
GENERAL STATED ON THE ARGUMENT THAT HE BELIEVED OTHER PARTS TO BE
UNTRUE.  PETITIONERS MOVED THAT THE CASE BE REMANDED TO THE DISTRICT
COURT FOR A NEW TRIAL.  HELD:  SOLELY ON THE BASIS OF THE GOVERNMENT'S
REPRESENTATIONS IN ITS WRITTEN MOTION AND THE STATEMENTS OF THE
SOLICITOR GENERAL DURING THE ARGUMENT ON THE MOTIONS, AND WITHOUT
REACHING ANY OTHER ISSUE, THE GOVERNMENT'S MOTION IS DENIED, THE
JUDGMENT IS REVERSED, AND THE CASE IS REMANDED TO THE DISTRICT COURT
WITH INSTRUCTIONS TO GRANT PETITIONERS A NEW TRIAL.  PP. 3-14. 

1.  THE WITNESS'S CREDIBILITY HAS BEEN WHOLLY DISCREDITED BY THE
DISCLOSURES OF THE SOLICITOR GENERAL; THE DIGNITY OF THE UNITED STATES
GOVERNMENT WILL NOT PERMIT THE CONVICTION OF ANY PERSON ON TAINTED
TESTIMONY; THIS CONVICTION IS TAINTED; AND JUSTICE REQUIRES THAT
PETITIONERS BE ACCORDED A NEW TRIAL.  PP. 4-9. 

2.  THE SITUATION PRESENTED BY THE GOVERNMENT'S MOTION IN THIS CASE
IS ENTIRELY DIFFERENT FROM THAT PRESENTED BY A MOTION FOR A NEW TRIAL
INITIATED BY THE DEFENSE, UNDER RULE 33 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, PRESENTING UNTRUTHFUL STATEMENTS BY A GOVERNMENT
WITNESS SUBSEQUENT TO THE TRIAL AS NEWLY DISCOVERED EVIDENCE AFFECTING
HIS CREDIBILITY AT THE TRIAL.  P. 9. 

3.  IN THIS CASE, IT CANNOT BE DETERMINED CONCLUSIVELY BY ANY COURT
THAT THE TESTIMONY OF THIS DISCREDITED WITNESS BEFORE A JURY WAS
INSIGNIFICANT IN THE GENERAL CASE AGAINST PETITIONERS; IT HAS TAINTED
THE TRIAL AS TO ALL PETITIONERS.  PP. 10-11. 

4.  IN THIS CRIMINAL CASE, WHERE THE FINDER OF FACT WAS A JURY, THE
DISTRICT JUDGE IS NOT THE PROPER AGENCY TO DETERMINE THAT THERE WAS
SUFFICIENT OTHER EVIDENCE TO SUSTAIN A CONVICTION; ONLY THE JURY CAN
DETERMINE WHAT IT WOULD DO ON A DIFFERENT BODY OF EVIDENCE.  COMMUNIST
PARTY V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S. 115,
DISTINGUISHED.  PP. 11-13. 

5.  THERE IS NO FACTUAL ISSUE UPON WHICH THE DISTRICT COURT COULD
MAKE AN UNASSAILABLE FINDING THAT THE WITNESS'S OTHER FALSEHOODS WERE
DIFFERENTIATED FROM HIS TESTIMONY HEREIN.  P. 13. 

6.  THIS COURT HAS SUPERVISORY JURISDICTION OVER THE PROCEEDINGS OF
THE FEDERAL COURTS.  P. 14. 

MESAROSH, ALIAS NELSON, ET AL. V. UNITED STATES. 

ON MOTION TO REMAND. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE DECISION HEREIN PASSES ONLY ON THE INTEGRITY OF A CRIMINAL TRIAL
IN THE FEDERAL COURTS.  IT DOES NOT DETERMINE THE GUILT OR INNOCENCE OF
THE PETITIONERS, AND WE DO NOT REACH OTHER ISSUES PROPOUNDED IN THE
LENGTHY BRIEFS OR WHICH MAY BE PRESENT IN THE TRIAL RECORD OF 5,147
PAGES.  THE SOLICITOR GENERAL OF THE UNITED STATES MOVED TO REMAND THE
CASE TO THE TRIAL COURT FOR FURTHER PROCEEDINGS BECAUSE OF THE
UNTRUTHFUL TESTIMONY GIVEN BEFORE OTHER TRIBUNALS BY JOSEPH D. MAZZEI,
A GOVERNMENT WITNESS IN THIS CASE.  THE COUNTER-MOTION OF PETITIONERS
ASKED FOR A NEW TRIAL.  THE DECISION IS BASED ENTIRELY UPON THE
REPRESENTATIONS OF THE GOVERNMENT IN ITS WRITTEN MOTION AND ON THE
STATEMENTS OF THE SOLICITOR GENERAL DURING THE ARGUMENT ON THE
MOTIONS.  (FN1) 

THE PETITIONERS WERE CHARGED IN A ONE-COUNT INDICTMENT IN THE
DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA WITH CONSPIRACY
TO VIOLATE THE SMITH ACT.  (FN2)  THEY WERE CONVICTED, AND THE COURT OF
APPEALS FOR THE THIRD CIRCUIT, SITTING EN BANC, AFFIRMED BY A DIVIDED
COURT.  223 F.2D 449.  THIS COURT GRANTED THE PETITION FOR WRIT OF
CERTIORARI, 350 U.S. 922, AND THE CASE WAS SCHEDULED FOR AGRUMENT ON
OCTOBER 10, 1956. 

ON SEPTEMBER 27, 1956, THE SOLICITOR GENERAL OF THE UNITED STATES
FILED A MOTION CALLING THE ATTENTION OF THE COURT TO THE TESTIMONY
GIVEN IN OTHER PROCEEDINGS BY MAZZEI, WHO WAS ONE OF THE SEVEN
WITNESSES FOR THE GOVERNMENT IN THIS CASE.  IN HIS MOTION, HE STATED
THAT THE GOVERNMENT, ON THE INFORMATION IN ITS POSSESSION, NOW HAS
SERIOUS REASON TO DOUBT THE TRUTHFULNESS OF MAZZEI'S TESTIMONY IN THOSE
PROCEEDINGS.  WHILE ADHERING TO ITS POSITION THAT "THE TESTIMONY GIVEN
BY MAZZEI AT THE TRIAL IN THIS CASE WAS ENTIRELY TRUTHFUL AND
CREDIBLE," THE MOTION STATED THAT "THESE INCIDENTS, TAKEN CUMULATIVELY,
LEAD US TO SUGGEST THAT THE ISSUE OF HIS TRUTHFULNESS AT THE TRIAL OF
THESE PETITIONERS SHOULD NOW BE DETERMINED BY THE DISTRICT COURT AFTER
A HEARING." 

THE MATERIAL CITED BY THE GOVERNMENT INDICATING THE UNTRUTHFULNESS OF
MAZZEI ON OCCASIONS OTHER THAN THIS TRIAL CAN BEST BE PRESENTED BY
SETTING FORTH VERBATIM THE DESCRIPTION OF THESE INCIDENTS PRESENTED IN
THE MOTION OF THE GOVERNMENT TO REMAND: 

"ON JUNE 18, 1953, MAZZEI TESTIFIED BEFORE THE SENATE PERMANENT
SUBCOMMITTEE ON INVESTIGATIONS, IN WASHINGTON, D.C., THAT, AT A MEETING
OF THE CIVIL RIGHTS CONGRESS ON DECEMBER 4, 1952, ONE LOUIS BORTZ TOLD
HIM THAT HE, BORTZ, HAD BEEN 'SELECTED BY THE COMMUNIST PARTY TO DO A
JOB IN THE LIQUIDATION OF SENATOR JOSEPH MCCARTHY.'  MAZZEI FURTHER
TESTIFIED THAT THE SAID BORTZ CONDUCTED COMMUNIST PARTY CLASSES IN
PITTSBURGH TO FAMILIARIZE PARTY MEMBERS WITH THE HANDLING OF FIREARMS
AND TO INSTRUCT THEM IN THE CONSTRUCTION OF BOMBS. 

"ON NOVEMBER 14, 1952, MAZZEI PLEADED GUILTY TO CHARGES OF ADULTERY
AND BASTARDY IN A PENNSYLVANIA STATE COURT.  THIS FACT WAS BROUGHT OUT
DURING HIS CROSS-EXAMINATION AT THE PETITIONERS' TRIAL.  ON OCTOBER 2,
1953 - AFTER THE COMPLETION OF THE TRIAL - MAZZEI FILED A PETITION IN
THE STATE COURT TO HAVE THE GUILTY PLEA SET ASIDE.  ONE OF THE GROUNDS
SET FORTH IN HIS PETITION WAS THAT HE 'WAS NOT GUILTY OF THE CHARGE TO
WHICH HE WAS INDUCED TO PLEAD  ***  BUT DID SO ONLY IN HIS OFFICIAL
CAPACITY (AS A GOVERNMENT INFORMANT) AT THE INSISTENCE OF HIS SUPERIOR
IN THE FBI TO AVOID TESTIFYING.'  AT A HEARING ON THE ABOVE PETITION ON
OCTOBER 6, 1953, A SPECIAL AGENT OF THE FBI DENIED MAZZEI'S ALLEGATIONS
UNDER OATH.  MAZZEI'S PETITION WAS DISMISSED BY THE COURT ON OCTOBER 6,
1953. 

"IN NOVEMBER 1953, MAZZEI, AT A SECRET PROCEEDING, INDENTIFIED A
CERTAIN GOVERNMENT OFFICIAL AS A LONG-TIME ACTIVE COMMUNIST PARTY
MEMBER. 

"ON JUNE 10 AND 11, 1955, MAZZEI TESTIFIED BEFORE THE SENATE
SUBCOMMITTEE ON INTERNAL SECURITY REGARDING POSSIBLE COMMUNIST
INFLUENCES MOTIVATING ATTEMPTS TO DISCREDIT JUSTICE MICHAEL MUSMANNO OF
THE SUPREME COURT OF PENNSYLVANIA.  IN THE COURSE OF HIS TESTIMONY,
MAZZEI IDENTIFIED JOHN J. MULLEN, NATIONAL DIRECTOR, POLITICAL ACTION
COMMITTEE, STEEL WORKERS OF AMERICA, AS A MEMBER OF THE COMMUNIST PARTY
IN PITTSBURGH DURING THE PERIOD THAT MAZZEI WAS A GOVERNMENT
INFORMANT.  MAZZEI ALSO TESTIFIED THAT SINCE 1942 HE MET MULLEN TEN OR
FIFTEEN TIMES A YEAR, AS A FELLOW COMMUNIST PARTY MEMBER. 

"ON JULY 2, 1956, MAZZEI TESTIFIED IN DISBARMENT PROCEEDINGS AGAINST
ONE LEO SHEINER BEFORE THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT OF FLORIDA, IN MIAMI.  ON CROSS-EXAMINATION, MAZZEI REITERATED
HIS CHARGE THAT HE WAS INDUCED TO PLEAD GUILTY TO THE ADULTERY AND
BASTARDY CHARGE IN THE PENNSYLVANIA STATE COURT IN NOVEMBER 1952 BY AN
AGENT OF THE FBI.  ITEMS OF HIS TESTIMONY AS TO ALLEGED COMMUNIST
ACTIVITY ARE AS FOLLOWS: - THAT HE VISITED DADE COUNTY, FLORIDA, ON
BEHALF OF THE COMMUNIST PARTY DURING EACH OF THE YEARS FROM 1946 TO
1952; THAT THE COMMUNIST PARTY IN MIAMI HAD ATTEMPTED TO LEASE A BUS
LINE WHICH SERVED THE OPA-LOCKA AIR BASE; THAT IN 1948 THE COMMUNIST
PARTY MADE PLANS FOR THE ARMED INVASION OF THE UNITED STATES ON ORDERS
FROM THE SOVIET UNION AND THAT HE, MAZZEI, WAS SELECTED TO GO TO MIAMI
IN 1948 BECAUSE IT WAS A SEAPORT; THAT HE TOOK COURSES IN THE COMMUNIST
PARTY ON SABOTAGE, ESPIONAGE, AND HANDLING ARMS AND AMMUNITION; THAT HE
WAS TAUGHT BY OFFICERS OF THE COMMUNIST PARTY IN PITTSBURGH HOW TO BLOW
BRIDGES, POISON WATER IN RESERVOIRS, AND TO ELIMINATE PEOPLE; THAT HE
DISCUSSED WITH SHEINER IN 1948 'KNOCKING OFF' A JUDGE HOLT (A FLORIDA
JUDGE) WHOM THEY (PRESUMABLY THE COMMUNIST PARTY) WERE HAVING TROUBLE
WITH, AND IMPORTING ONE LOUIS BORTZ, THE STRONG-ARM MAN FOR THE
COMMUNIST PARTY, TO DO THE JOB; THAT HE AND THE COMMUNIST PARTY HAD
MADE PLANS TO ASSASSINATE SENATORS, CONGRESSMEN, AND EVEN WENT TO
WASHINGTON AND BEAT UP A SENATOR; AND THAT, TO HIS KNOWLEDGE, SHEINER
WAS EXTENSIVELY ENGAGED IN COMMUNIST PARTY ACTIVITIES IN 1945, 1947,
1950, 1951, AND 1952.  NONE OF THIS TESTIMONY AT THE FLORIDA PROCEEDING
IS SUPPORTED OR CORROBORATED BY INFORMATION IN THE POSSESSION OF THE
GOVERNMENT. 

"MAZZEI LIKEWISE TESTIFIED THAT THE FBI ARRANGED TO GET HIM INTO THE
ARMY SO THAT HE COULD WATCH A CERTAIN COMMUNIST PARTY MEMBER; THAT HE
NEVER WORE A UNIFORM AND THAT HE WAS DISCHARGED THE DAY AFTER THE
COMMUNIST PARTY MEMBER HE WAS TO WATCH WAS DISCHARGED.  IN ACTUAL FACT,
MAZZEI'S CAREER IN THE ARMY WAS THE RESULT OF THE OPERATION OF THE
SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND THE FBI HAD NOTHING TO
DO WITH HIS SERVICE IN THE ARMED FORCES.  HE ALSO TESTIFIED THAT
SOMETIMES THE FBI PAID HIM ABOUT $1,000 A MONTH FOR EXPENSES.  FROM THE
PERIOD 1942 TO 1952, ACCORDING TO THE BUREAU RECORDS, MAZZEI WAS PAID
THE TOTAL OF $172.05 AS EXPENSE MONEY. 

"MAZZEI LIKEWISE TESTIFIED THAT HE HAD NEVER BEEN ARRESTED IN HIS
LIFE.  IN FACT, HE WAS ARRESTED IN CONNECTION WITH THE PATERNITY CASE
BROUGHT AGAINST HIM IN PENNSYLVANIA BY ONE IRENE CORVA.  HE HAS BEEN
ARRESTED SEVERAL TIMES SUBSEQUENT TO THIS FOR HIS FAILURE TO MAKE
SUPPORT PAYMENTS TO THIS WOMAN." 

ON THE ARGUMENTS OF THE MOTION THE SOLICITOR GENERAL, IN RESPONSE TO
QUESTIONS BY THE COURT, STATED WITH COMMENDABLE CANDOR THAT HE BELIEVED
THE TESTIMONY GIVEN BY MAZZEI ON JUNE 18, 1953, BEFORE THE SENATE
COMMITTEE CONCERNING "THE LIQUIDATION OF SENATOR JOSEPH MCCARTHY" WAS
UNTRUE.  HE LIKEWISE STATED THAT HE BELIEVED THE TESTIMONY GIVEN BY
MAZZEI ON JULY 2, 1956, IN THE CIRCUIT COURT OF FLORIDA WAS UNTRUE. 
AND IN ADDITION TO THE SOLICITOR GENERAL'S PERSONAL OPINION, THE TEXT
OF THE MOTION ITSELF SHOWS THAT THE DEPARTMENT OF JUSTICE IS CERTAIN
THAT SOME OF MAZZEI'S POST-TRIAL TESTIMONY WAS CONTRARY TO THE FACTS. 
THE PENNSYLVANIA STATEMENT OF OCTOBER 2, 1953, CONCERNING HIS
CONVICTION OF ADULTERY AND BASTARDY WAS CONTROVERTED UNDER OATH AT THAT
HEARING BY AN AGENT OF THE FBI.  MAZZEI AGAIN ASSERTED IN THE FLORIDA
PROCEEDING THAT HE WAS INDUCED TO PLEAD GUILTY TO THE ADULTERY CHARGE
BY AN AGENT OF THE FBI.  IN THE FLORIDA TESTIMONY, HE SAID THAT THE FBI
SOMETIMES PAID HIM A THOUSAND DOLLARS A MONTH FOR EXPENSES, WHEREAS THE
RECORDS OF THE BUREAU SHOWED HE WAS PAID A TOTAL OF $172.05 AS EXPENSE
MONEY.  HE ALSO TESTIFIED THERE THAT THE FBI ARRANGED TO PUT HIM IN THE
ARMY TO SPY ON A PARTY MEMBER, WHEREAS THE FBI HAD NOTHING TO DO WITH
HIS ARMY SERVICE; HE HAD BEEN INDUCTED IN ACCORDANCE WITH THE SELECTIVE
SERVICE ACT.  ALL THESE DISCREPANCIES ARE POINTED OUT IN THE MOTION, AS
QUOTED ABOVE. 

AS TO HIS BIZARRE TESTIMONY IN THE FLORIDA PROCEEDING CONCERNING
SABOTAGE, ESPIONAGE, HANDLING OF ARMS AND AMMUNITION, AND PLOTS TO
ASSASSINATE SENATORS, CONGRESSMEN, AND A STATE JUDGE, THE GOVERNMENT'S
MOTION SUGGESTS THAT NONE OF IT IS WORTHY OF BELIEF BY STATING THEREIN:
"NONE OF THIS TESTIMONY AT THE FLORIDA PROCEEDING IS SUPPORTED OR
CORROBORATED BY INFORMATION IN THE POSSESSION OF THE GOVERNMENT." 

AT THE ORAL ARGUMENT, HOWEVER, THE SOLICITOR GENERAL STATED THAT
ALTHOUGH HE BELIEVED ALL OF THIS TESTIMONY TO BE UNTRUE, HE WAS NOT
PREPARED TO SAY THE WITNESS MAZZEI WAS GUILTY OF PERJURY IN GIVING THE
TESTIMONY; THAT HIS UNTRUE STATEMENTS MIGHT HAVE BEEN CAUSED BY A
PSYCHIATRIC CONDITION, AND THAT SUCH CONDITION MIGHT HAVE ARISEN
SUBSEQUENT TO THE TIME OF THIS TRIAL.  THE SOLICITOR GENERAL, IN THE
LIGHT OF THIS POSITION, ASKED TO HAVE THE ARGUMENT ON THE MAIN CASE
STRICKEN FROM THE CALENDAR AND THE CASE REMANDED TO THE DISTRICT COURT
FOR A FULL CONSIDERATION OF THE CREDIBILITY OF THE TESTIMONY OF WITNESS
MAZZEI.  COMMENDABLE AS THE ACTION OF THE SOLICITOR GENERAL WAS IN
PROMPTLY BRINGING THE MATTER TO OUR ATTENTION WHEN IT CAME TO THE
ATTENTION OF HIS OFFICE, (FN3) WE DO NOT BELIEVE THE DISPOSITION OF THE
CASE SUGGESTED BY HIM SHOULD BE MADE. 

EITHER THIS COURT OR THE DISTRICT COURT SHOULD ACCEPT THE STATEMENTS
OF THE SOLICITOR GENERAL AS INDICATING THE UNRELIABILITY OF THIS
GOVERNMENT WITNESS.  THE QUESTION OF WHETHER HIS UNTRUTHFULNESS IN
THESE OTHER PROCEEDINGS CONSTITUTED PERJURY OR WAS CAUSED BY A
PSYCHIATRIC CONDITION CAN MAKE NO MATERIAL DIFFERENCE HERE.  WHICHEVER
EXPLANATION MIGHT BE FOUND TO BE CORRECT IN THIS REGARD, MAZZEI'S
CREDIBILITY HAS BEEN WHOLLY DISCREDITED BY THE DISCLOSURES OF THE
SOLICITOR GENERAL.  NO OTHER CONCLUSION IS POSSIBLE.  THE DIGNITY OF
THE UNITED STATES GOVERNMENT WILL NOT PERMIT THE CONVICTION OF ANY
PERSON ON TAINTED TESTIMONY.  THIS CONVICTION IS TAINTED, AND THERE CAN
BE NO OTHER JUST RESULT THAN TO ACCORD PETITIONERS A NEW TRIAL. 

IT MUST BE REMEMBERED THAT WE ARE NOT DEALING HERE WITH A MOTION FOR
A NEW TRIAL INITIATED BY THE DEFENSE, UNDER RULE 33 OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE, PRESENTING UNTRUTHFUL STATEMENTS BY A
GOVERNMENT WITNESS SUBSEQUENT TO THE TRIAL AS NEWLY DISCOVERED EVIDENCE
AFFECTING HIS CREDIBILITY AT THE TRIAL.  SUCH AN ALLEGATION BY THE
DEFENSE ORDINARILY WILL NOT SUPPORT A MOTION FOR A NEW TRIAL, BECAUSE
NEW EVIDENCE WHICH IS "MERELY CUMULATIVE OR IMPEACHING" IS NOT,
ACCORDING TO THE OFTEN-REPEATED STATEMENT OF THE COURTS, AN ADEQUATE
BASIS FOR THE GRANT OF A NEW TRIAL.  (FN4) 

HERE WE HAVE AN ENTIRELY DIFFERENT SITUATION.  THE WITNESS MAZZEI WAS
A PAID INFORMER OF THE GOVERNMENT - HE HAD BEEN IN ITS EMPLOY FROM 1942
TO 1953 FOR THE PURPOSE OF INFILTRATING THE COMMUNIST PARTY AND
REPORTING THE FACTS FOUND.  HE TESTIFIED IN THIS CASE IN THAT CAPACITY,
AS A GOVERNMENT WITNESS.  IT IS THE GOVERNMENT WHICH NOW QUESTIONS THE
CREDIBILITY OF ITS OWN WITNESS BECAUSE IN OTHER PROCEEDINGS IN THE SAME
FIELD OF ACTIVITY HE GAVE CERTAIN TESTIMONY - SOME PARTS OF IT
POSITIVELY ESTABLISHED AS UNTRUE AND OTHER PARTS OF IT BELIEVED BY THE
SOLICITOR GENERAL TO BE UNTRUE.  THE SOLICITOR GENERAL CONCEDED THAT
WITHOUT MAZZEI'S TESTIMONY IN THIS CASE THE CONVICTION OF TWO OF THE
PETITIONERS CANNOT STAND, BUT HE ARGUED THAT AS TO THE OTHER THREE
MAZZEI'S EVIDENCE MAY NOT HAVE HAD A SUBSTANTIAL EFFECT.  BUT THE TRIAL
JUDGE BELIEVED MAZZEI'S TESTIMONY WAS MATERIAL AGAINST THEM FOR, OVER
OBJECTION, HE ADMITTED IT AGAINST ALL THE DEFENDANTS.  THERE WERE ONLY
SEVEN WITNESSES.  THE TESTIMONY OF MAZZEI, AT LEAST, GAVE FLESH-AND
BLOOD REALITY TO THE MASS OF COMMUNIST LITERATURE READ TO THE JURY TO
SHOW ADVOCACY OF VIOLENCE BY THE COMMUNIST PARTY.  (FN5)  THIS BEING
SO, IT CANNOT BE DETERMINED CONCLUSIVELY BY ANY COURT THAT HIS
TESTIMONY WAS INSIGNIFICANT IN THE GENERAL CASE AGAINST THE
DEFENDANTS.  THUS IT HAS TAINTED THE TRIAL AS TO ALL PETITIONERS.  AS
WE SAID LAST TERM IN COMMUNIST PARTY V. SUBVERSIVE ACTIVITIES CONTROL
BOARD: 

"WHEN UNCONTESTED CHALLENGE IS MADE THAT A FINDING OF SUBVERSIVE
DESIGN BY PETITIONER WAS IN PART THE PRODUCT OF THREE PERJURIOUS
WITNESSES, IT DOES NOT REMOVE THE TAINT FOR A REVIEWING COURT TO FIND
THAT THERE IS AMPLE INNOCENT TESTIMONY TO SUPPORT THE BOARD'S
FINDINGS.  IF THESE WITNESSES IN FACT COMMITTED PERJURY IN TESTIFYING
IN OTHER CASES ON SUBJECT MATTER SUBSTANTIALLY LIKE THAT OF THEIR
TESTIMONY IN THE PRESENT PROCEEDINGS, THEIR TESTIMONY IN THIS
PROCEEDING IS INEVITABLY DISCREDITED AND THE BOARD'S DETERMINATION MUST
DULY TAKE THIS FACT INTO ACCOUNT."  351 U.S. 115, 124.    THERE WE
REMANDED TO THE SUBVERSIVE ACTIVITIES CONTROL BOARD FOR RECONSIDERATION
OF ITS ORIGINAL DETERMINATION IN THE LIGHT OF THE RECORD SHORN OF THE
TAINTED TESTIMONY.  BUT THERE THE BOARD, AN ADMINISTRATIVE AGENCY, WAS
THE ORIGINAL FINDER OF FACT.  HERE, ON THE OTHER HAND, IN A CRIMINAL
CASE, THE ORIGINAL FINDER OF FACT WAS A JURY.  THE DISTRICT JUDGE IS
NOT THE PROPER AGENCY TO DETERMINE THAT THERE WAS SUFFICIENT EVIDENCE
AT THE TRIAL, OTHER THAN THAT GIVEN BY MAZZEI, TO SUSTAIN A CONVICTION
OF ANY OF THE PETITIONERS.  ONLY THE JURY CAN DETERMINE WHAT IT WOULD
DO ON A DIFFERENT BODY OF EVIDENCE, AND THE JURY CAN NO LONGER ACT IN
THIS CASE.  (FN6)  FOR THIS REASON, AS WELL AS THAT STATED IN THE
PRECEDING PARAGRAPH, IF ON A REMAND THE DISTRICT COURT SHOULD RULE THAT
THE VERDICT AGAINST SOME OF THE PETITIONERS COULD STAND, WE WOULD BE
OBLIGED, ON A SUBSEQUENT APPEAL, TO REVERSE AND, AT THAT LATE DATE,
DIRECT THAT A NEW TRIAL BE GRANTED.  (FN7)  THIS CASE WAS INSTITUTED
FOUR AND ONE-HALF YEARS AGO; PETITIONERS HAVE BEEN PROCEEDING IN FORMA
PAUPERIS.  THE INTERESTS OF JUSTICE COULD NOT BE SERVED BY A REMAND
THAT MUST PROVE FUTILE. 

IT MIGHT BE DIFFERENT IF WE COULD SEE IN THIS CASE ANY FACTUAL ISSUE
UPON WHICH THE DISTRICT COURT, ON A REMAND, COULD MAKE AN UNASSAILABLE
FINDING THAT MAZZEI'S OTHER FALSEHOODS WERE DIFFERENTIATED FROM HIS
TESTIMONY HEREIN.  BUT IT IS NOT WITHIN THE REALM OF REASON TO EXPECT
THE DISTRICT JUDGE TO DETERMINE, AS THE GOVERNMENT INDICATED IT WOULD
ASK HIM TO DO, THAT THE WITNESS MAZZEI TESTIFIED TRUTHFULLY IN THIS
CASE IN 1953 AS AN UNDERCOVER INFORMER CONCERNING THE ACTIVITIES OF THE
COMMUNIST CONSPIRACY, YET CONCURRENTLY APPEARED IN THE SAME ROLE IN
ANOTHER TRIBUNAL AND TESTIFIED FALSELY - POSSIBLY BECAUSE OF A
PSYCHIATRIC CONDITION - ABOUT A PLAN BY DIFFERENT MEMBERS OF THE
COMMUNIST CONSPIRACY TO ASSASSINATE A UNITED STATES SENATOR.  (FN8)
THAT WOULD BE AN UNREASONABLE DETERMINATION TO MAKE EVEN THOUGH THE
JUDGE MIGHT BELIEVE THAT MAZZEI'S BIZARRE TESTIMONY IN 1956 CONCERNING
PLANS FOR THE ASSASSINATION OF OTHER OFFICIALS, THE DESTRUCTION OF
BRIDGES, TRAINING IN SABOTAGE AND HANDLING ARMS, AND THE POISONING OF
WATER IN RESERVOIRS, ALL TO DESTROY THE GOVERNMENT OF THE UNITED
STATES, WAS THE PRODUCT OF A MENTAL OR EMOTIONAL CONDITION THAT HAD
DEVELOPED ONLY AFTER THE TIME OF THIS TRIAL. 

MAZZEI, BY HIS TESTIMONY, HAS POISONED THE WATER IN THIS RESERVOIR,
AND THE RESERVOIR CANNOT BE CLEANSED WITHOUT FIRST DRAINING IT OF ALL
IMPURITY.  THIS IS A FEDERAL CRIMINAL CASE, AND THIS COURT HAS
SUPERVISORY JURISDICTION OVER THE PROCEEDINGS OF THE FEDERAL COURTS. 
(FN9)  IF IT HAS ANY DUTY TO PERFORM IN THIS REGARD, IT IS TO SEE THAT
THE WATERS OF JUSTICE ARE NOT POLLUTED.  POLLUTION HAVING TAKEN PLACE
HERE, THE CONDITION SHOULD BE REMEDIED AT THE EARLIEST OPPORTUNITY. 

"THE UNTAINTED ADMINISTRATION OF JUSTICE IS CERTAINLY ONE OF THE MOST
CHERISHED ASPECTS OF OUR INSTITUTIONS.  ITS OBSERVANCE IS ONE OF OUR
PROUDEST BOASTS.  THIS COURT IS CHARGED WITH SUPERVISORY FUNCTIONS IN
RELATION TO PROCEEDINGS IN THE FEDERAL COURTS.  SEE MCNABB V. UNITED
STATES, 318 U.S. 332.  THEREFORE, FASTIDIOUS REGARD FOR THE HONOR OF
THE ADMINISTRATION OF JUSTICE REQUIRES THE COURT TO MAKE CERTAIN THAT
THE DOING OF JUSTICE BE MADE SO MANIFEST THAT ONLY IRRATIONAL OR
PERVERSE CLAIMS OF ITS DISREGARD CAN BE ASSERTED."  COMMUNIST PARTY V.
SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S. 115, 124. 

THE GOVERNMENT OF A STRONG AND FREE NATION DOES NOT NEED CONVICTIONS
BASED UPON SUCH TESTIMONY.  IT CANNOT AFFORD TO ABIDE WITH THEM.  THE
INTERESTS OF JUSTICE CALL FOR A REVERSAL OF THE JUDGMENTS BELOW WITH
DIRECTION TO GRANT THE PETITIONERS A NEW TRIAL.  IT IS SO ORDERED. 

FN1  THE COURT DIRECTED THAT ORAL ARGUMENT ON THE MOTIONS BE HEARD AT
THE TIME PREVIOUSLY SCHEDULED FOR THE ARGUMENT ON THE MERITS.  352 U.S.
808.  MR. JUSTICE FRANKFURTER, BELIEVING THE MOTION SHOULD BE GRANTED
WITHOUT ARGUMENT, FILED A DISSENT. 

AFTER HEARING ARGUMENT ON THE MOTIONS, OCTOBER 10, 1956, THE COURT
RECESSED TO CONSIDER THE MATTER, FOLLOWING WHICH ITS DECISION TO ORDER
A NEW TRIAL WAS ANNOUNCED FROM THE BENCH.  352 U.S. 862.  ARGUMENT ON
THE MERITS, THEREFORE, WAS NOT HEARD.  MR. JUSTICE FRANKFURTER, MR.
JUSTICE BURTON, AND MR. JUSTICE HARLAN DISSENTED FROM THE DENIAL OF THE
GOVERNMENT'S MOTION TO REMAND. 

THIS OPINION HAS BEEN WRITTEN TO AMPLIFY THE DECISION ANNOUNCED
OCTOBER 10, 1956.  IT SHOULD BE NOTED THAT MR. JUSTICE MINTON
PARTICIPATED IN THE CONSIDERATION AND DECISION OF THE MOTIONS, VOTING
IN FAVOR OF THE ORDER OF THE COURT.  ON OCTOBER 15, 1956, PRIOR TO THE
WRITING OF THIS OPINION, HE RETIRED FROM THE COURT.  THEREFORE HE DID
NOT PARTICIPATE IN THE CONSIDERATION OF THIS OPINION. 

FN2  IT WAS ALLEGED THAT BETWEEN 1945 AND THE DATE OF THE INDICTMENT
THE PETITIONERS HAD CONSPIRED TO ADVOCATE THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE AND TO ORGANIZE A
SOCIETY OR GROUP, THE COMMUNIST PARTY, DEVOTED TO THAT PURPOSE.  THE
TRIAL JUDGE RULED THAT THE ORGANIZATION CHARGE WAS BARRED BY THE
STATUTE OF LIMITATIONS, BUT THAT EVIDENCE CONCERNING THE 1945
ORGANIZATION OF THE COMMUNIST PARTY, AS WELL AS EARLIER EVENTS, WAS
ADMISSIBLE IN DETERMINING WHETHER PETITIONERS HAD CONSPIRED TO ADVOCATE
VIOLENCE. 

FN3  THE SOLICITOR GENERAL'S MOTION STATED THAT HIS OFFICE CAME INTO
POSSESSION OF "THE HISTORY OF MAZZEI'S POST-TRIAL TESTIMONY" LESS THAN
TEN DAYS BEFORE THE MOTION WAS FILED.  WITH ONE EXCEPTION, THE MOTION
DOES NOT INDICATE WHEN OTHER UNITS OF THE DEPARTMENT OF JUSTICE
ACQUIRED THEIR INFORMATION OF MAZZEI'S CONDUCT. 

FN4  SEE, E.G., UNITED STATES V. JOHNSON, 142 F.2D 588, 592, CERT.
DISMISSED, 323 U.S. 806; UNITED STATES V. RUTKIN, 208 F.2D 647, 654;
UNITED STATES V. FRANKFELD, 111 F. SUPP. 919, 923, AFF'D SUB NOM.
MEYERS V. UNITED STATES, 207 F.2D 413.  BUT SEE UNITED STATES V. ON
LEE, 201 F.2D 722, 725-726 (DISSENTING OPINION). 

SEE ALSO UNITED STATES V. JOHNSON, 327 U.S. 106, 110-111, N. 4 AND N.
5. 

FN5  ALTHOUGH WE HAVE NOT EXAMINED THE EVIDENCE IN THIS CASE, IN VIEW
OF THE DISPOSITION MADE, WE DEEM IT APPROPRIATE TO CONSIDER HEREIN THE
NATURE OF MAZZEI'S TESTIMONY, SINCE PETITIONERS' COUNTER-MOTION
REFERRED US TO THE APPROPRIATE PAGES OF THE TRANSCRIPT.  THE SAME PAGES
HAD ALSO BEEN CITED IN THE MAIN BRIEFS OF BOTH PARTIES IN SUMMARIZING
THE EVIDENCE. 

MAZZEI TESTIFIED QUITE SPECIFICALLY ABOUT STATEMENTS BY DEFENDANTS
CAREATHERS AND DOLSEN, MADE IN CLASSES EACH HAD TAUGHT AT A COMMUNIST
PARTY SCHOOL HE HAD ATTENDED IN 1943 OR IN PRIVATE CONVERSATION EACH
HAD HAD WITH HIM AT THAT TIME. 

CAREATHERS TAUGHT IN HIS CLASS, MAZZEI TESTIFIED, ABOUT THE PART THE
NEGRO PEOPLE WOULD PLAY IN BRINGING ABOUT A REVOLUTION.  (TR. 1940
1941.)  DOLSEN TOLD HIS CLASS, WITH CAREATHERS PRESENT, THAT THE ONLY
WAY A REVOLUTION COULD COME ABOUT WOULD BE BY VIOLENT OVERTHROW OF THE
GOVERNMENT, WITH THE COMMUNIST PARTY HELPING.  (TR. 1923.)  MAZZEI
RELATED OTHER DETAILS OF DOLSEN'S TEACHING, AND PASSAGES WERE READ TO
THE JURY WHICH HE SAID DOLSEN HAD READ TO THE CLASS FROM THE HISTORY OF
THE COMMUNIST PARTY OF THE SOVIET UNION.  (TR. 1922-1923, 1936-1938.) 

MAZZEI TOLD HOW DOLSEN AND CAREATHERS HAD EACH GIVEN HIM PRIVATE
INSTRUCTION AFTER CLASS, BECAUSE EACH WAS UNSATISFIED WITH HIS
UNDERSTANDING OF A LESSON IN DOLSEN'S CLASS.  MAZZEI RELATED THAT EACH
HAD TOLD HIM IN THESE SEPARATE PRIVATE SESSIONS THAT A REVOLUTION IN
THIS COUNTRY COULD ONLY COME BY ARMED VIOLENCE, AND THAT IT WOULD BE
WITH THE HELP OF THE COMMUNIST PARTY AND THE SOVIET UNION.  (TR. 1940,
1943.)  MAZZEI ALSO TESTIFIED THAT DOLSEN HAD TOLD HIM, ON AN AUTO
TRIP, THAT IF A REVOLUTION CAME ABOUT, HE WOULD NOT HESTITATE TO KILL,
AS HE HAD DONE IN CHINA, WHERE HE HAD WORKED WITH THE COMMUNIST PARTY. 
(TR. 1945.) 

FN6  CF. GORDON V. UNITED STATES, 344 U.S. 414, 422-423. 

THE PRESENT SITUATION IS DIFFERENT FROM THAT IN UNITED STATES V.
FLYNN, 130 F. SUPP. 412, REARGUMENT DENIED, 131 F. SUPP. 742.  THERE
THE DEFENSE MOVED FOR A NEW TRIAL ON THE BASIS OF AN AFFIDAVIT IN WHICH
A WITNESS RECANTED HIS TESTIMONY AFTER THE TRIAL.  THE GOVERNMENT
CHARGED THAT THE RECANTATION, RATHER THAN THE TESTIMONY IT
CONTRADICTED, WAS THE LIE.  HENCE THERE WAS A FACTUAL ISSUE TO BE
DETERMINED AT THE OUTSET, UNLIKE THE PRESENT CASE, WHERE THERE IS NO
CONFLICT BETWEEN THE TRIAL TESTIMONY AND THE SUBSEQUENT MATTER BROUGHT
FORWARD BY THE GOVERNMENT AS BEARING ON CREDIBILITY.  THIS DIFFERENCE
HAS BEEN RECOGNIZED BY THE COURTS AS CALLING FOR THE APPLICATION OF
DIFFERENT TESTS IN PASSING ON A MOTION FOR NEW TRIAL, EVEN WITHOUT THE
ADDED DISTINCTION OF THIS CASE THAT IT IS THE GOVERNMENT WHICH
QUESTIONS THE WITNESS'S CREDIBILITY.  SEE, E.G., UNITED STATES V.
JOHNSON, 142 F.2D 588, 591-592, CERT. DISMISSED, 323 U.S. 806; UNITED
STATES V. HISS, 107 F. SUPP. 128, 136, AFF'D, 201 F.2D 372.  THEREFORE,
WE EXPRESS NO OPINION AS TO THE PROCEDURE FOLLOWED BY JUDGE DIMOCK IN
THE FLYNN CASE. 

FN7  CF. REMMER V. UNITED STATES, 347 U.S. 227, 348 U.S. 904, 350
U.S. 377. 

BECAUSE THE SITUATION RAISED BY THE SOLICITOR GENERAL'S MOTION IS
QUITE DISTINCT FROM THAT OF THE ORDINARY DEFENSE MOTION FOR NEW TRIAL,
SEE PP. 9-11, SUPRA, WE WOULD NOT CONSIDER OURSELVES BOUND ON A REVIEW
OF THE DISTRICT COURT'S RULING IN THIS SITUATION BY THE LIMITATIONS
EXPRESSED WITH REFERENCE TO THE DEFENSE MOTION IN UNITED STATES V.
JOHNSON, 327 U.S. 106. 

SEE ALSO NOTE 6, SUPRA. 

FN8  THE TRIAL OF PETITIONERS STARTED FEBRUARY 24, 1953.  MAZZEI
TESTIFIED AGAINST PETITIONERS ON MARCH 26, 27, AND 30.  IT WAS ON JUNE
18 THAT HE TESTIFIED BEFORE THE SENATE COMMITTEE.  ON JULY 9, A MOTION
FOR A MISTRIAL WAS MADE ON THE BASIS OF THE PREJUDICE ALLEGED TO BE
CAUSED PETITIONERS BY THE PUBLICITY GIVEN THE JUNE 18 TESTIMONY OF
MAZZEI CONCERNING THE ASSASSINATION OF SENATOR MCCARTHY.  MISTRIAL WAS
DENIED.  THE JURY FOUND PETITIONERS GUILTY ON AUGUST 20.  THEY WERE
SENTENCED ON AUGUST 25, ON WHICH DATE MOTIONS FOR NEW TRIAL WERE
DENIED. 

FN9  CF. MCNABB V. UNITED STATES, 318 U.S. 332, 340-341; THIEL V.
SOUTHERN PACIFIC CO., 328 U.S. 217, 225. 

MR. JUSTICE BRENNAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE HARLAN, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

WHEN THE COURT'S ORDER DENYING THE GOVERNMENT'S MOTION TO REMAND, AND
GRANTING THE PETITIONERS A NEW TRIAL, WAS ANNOUNCED BY THE CHIEF
JUSTICE ON OCTOBER 10, MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON AND
I DISSENTED.  (FN1)  WE RESERVED OUR RIGHT TO FILE AN OPINION STATING
OUR REASONS FOR THINKING THAT THE GOVERNMENT'S MOTION SHOULD HAVE BEEN
GRANTED.  THIS IS THAT OPINION. 

ON AUGUST 20, 1953, AFTER A LENGTHY JURY TRIAL, PETITIONERS WERE
CONVICTED OF VIOLATING THE SMITH ACT AND THE GENERAL FEDERAL CONSPIRACY
STATUTE, 54 STAT. 670, 671, 18 U.S.C.  SECS. 2385, 371, BY CONSPIRING
TO ADVOCATE THE OVERTHROW OF THE UNITED STATES GOVERNMENT BY FORCE AND
VIOLENCE.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT, SITTING EN BANC,
AFFIRMED BY A DIVIDED VOTE.  (FN2)  THIS COURT GRANTED CERTIORARI. 
(FN3) 

ON SEPTEMBER 27, 1956, ABOUT TWO WEEKS BEFORE THE CASE WAS SCHEDULED
FOR ARGUMENT, THE SOLICITOR GENERAL FILED A MOTION ASKING US TO REMAND
THE CASE TO THE DISTRICT COURT FOR A HEARING AS TO THE TRUTHFULNESS AND
CREDIBILITY OF ONE MAZZEI, A GOVERNMENT INFORMANT AND WITNESS AT THE
TRIAL.  THE OCCASION FOR THIS MOTION WAS THAT THE SOLICITOR GENERAL'S
OFFICE, SOME TEN DAYS BEFORE, HAD COME INTO POSSESSION OF INFORMATION
WHICH LED IT SERIOUSLY TO DOUBT THE CORRECTNESS OF CERTAIN TESTIMONY
GIVEN BY MAZZEI IN VARIOUS INDEPENDENT PROCEEDINGS, ALL BUT ONE OF
WHICH OCCURRED AFTER THE TRIAL, AS TO HIS RELATIONS WITH COMMUNISTS AND
THE FEDERAL BUREAU OF INVESTIGATION.  (FN4)  IN ITS MOTION PAPERS THE
GOVERNMENT STATED THAT WHILE IT STILL BELIEVED THAT MAZZEI'S TESTIMONY
AT THE TRIAL HAD BEEN "ENTIRELY TRUTHFUL AND CREDIBLE," HIS POST-TRIAL
TESTIMONY IN THESE OTHER PROCEEDINGS WAS SUCH AS TO "LEAD US TO SUGGEST
THAT THE ISSUE OF HIS TRUTHFULNESS AT THE TRIAL OF THESE PETITIONERS
SHOULD NOW BE DETERMINED BY THE DISTRICT COURT AFTER A HEARING." 
PETITIONERS' ANSWER TO THIS MOTION WAS THAT, WHILE THEY CONSIDERED
THEMSELVES ENTITLED TO A JUDGMENT OF ACQUITTAL OR A NEW TRIAL ON THE
BASIS OF THE GOVERNMENT'S DISCLOSURES, DISPOSITION OF THE GOVERNMENT'S
MOTION SHOULD NEVERTHELESS AWAIT THIS COURT'S DECISION ON THE ISSUES
BROUGHT HERE BY THE WRIT OF CERTIORARI. 

ON OCTOBER 8, THE COURT DIRECTED THAT THE GOVERNMENT'S MOTION BE
HEARD ORALLY AT THE THRESHOLD OF THE MAIN CASE.  MY BROTHER
FRANKFURTER, WHO FELD THAT THE MOTION SHOULD HAVE BEEN GRANTED
FORTHWITH, FILED A DISSENTING MEMORANDUM.  (FN5)  WHEN THE MATTER WAS
HEARD BY THE COURT ON OCTOBER 10, THE POSITIONS TAKEN BY THE GOVERNMENT
AND THE DEFENSE WERE AS FOLLOWS:  THE GOVERNMENT WAS NOT YET PREPARED
TO SAY THAT MAZZEI HAD COMMITTED PERJURY EITHER AT THE TRIAL OR IN ANY
OF THE COLLATERAL PROCEEDINGS.  (FN6)  CONCEIVABLY, THE SOLICITOR
GENERAL THOUGHT, IT MIGHT TURN OUT THAT MAZZEI WAS A PSYCHIATRIC CASE. 
THE SOLICITOR GENERAL POINTED OUT THAT THE PETITIONERS HAD NOT
PREVIOUSLY MOVED FOR A NEW TRIAL ON THE GROUNDS RELIED UPON IN THE
GOVERNMENT'S MOTION, ALTHOUGH MUCH OF THE LATER INFORMATION AS TO
MAZZEI WAS KNOWN TO THEM AT THE TIME OF THEIR MOTION FOR REARGUMENT IN
THE COURT OF APPEALS.  EVEN SO, THE SOLICITOR GENERAL FELT THAT IN THE
BROADER INTERESTS OF JUSTICE IT WAS HIS DUTY TO PURSUE THE MATTER AS
SOON AS IT CAME TO HIS KNOWLEDGE THAT A CLOUD WAS CAST UPON MAZZEI'S
TRUTHFULNESS OR CREDIBILITY.  (FN7)  IF HE HAD BEEN SATISFIED THAT
MAZZEI WAS A PERJURER, THE SOLICITOR GENERAL STATED, HE WOULD HAVE
RECOMMENDED THAT THIS COURT REVERSE THE CONVICTIONS OF TWO OF THE
PETITIONERS (CAREATHERS AND DOLSEN).  SINCE HE WAS NOT SO SATISFIED, HE
THOUGHT THE PROPER PROCEDURE WAS TO REMAND THE CASE TO THE DISTRICT
COURT FOR FULL EXPLORATION OF THE TRUTHFULNESS AND CREDIBILITY OF THIS
WITNESS.  (FN8)  AS TO THE OTHER THREE PETITIONERS, THE SOLICITOR
GENERAL REGARDED MAZZEI'S TRIAL TESTIMONY OF SO LITTLE IMPORTANCE THAT
THE TRIAL COURT, EVEN IF IT FOUND MAZZEI WAS A PERJURER, WOULD HAVE TO
REVIEW THE ENTIRE CASE AGAINST THEM BEFORE ORDERING A NEW TRIAL. 
PETITIONERS' POSITION WAS THAT IF THIS COURT WAS UNWILLING TO HEAR THE
MAIN CASE ON THE MERITS, IT SHOULD, WITHOUT MORE, DENY THE GOVERNMENT'S
MOTION AND REVERSE THE CONVICTIONS WITH DIRECTIONS FOR ACQUITTAL OR AT
LEAST A NEW TRIAL.  AT THE CONCLUSION OF THE ORAL ARGUMENT ON THE
MOTION TO REMAND, THE COURT RECESSED TO CONSIDER THE MATTER, FOLLOWING
WHICH ITS DECISION DENYING THE GOVERNMENT'S MOTION WAS ANNOUNCED FROM
THE BENCH. 

WE ARE IN FULL AGREEMENT THAT THE COURT PROPERLY REFUSED TO PASS ON
THE MERITS OF THE CASE UNTIL THIS CLOUD UPON THE INTEGRITY OF THE
CONVICTIONS HAD BEEN DISSOLVED.  COMMUNIST PARTY V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, 351 U.S. 115.  WHAT WE OBJECT TO IS THAT THIS
COURT ITSELF SHOULD HAVE UNDERTAKEN TO DEAL WITH THE SUBTLE AND
COMPLICATED ISSUES PRESENTED BY THE GOVERNMENT'S MOTION INSTEAD OF
SENDING THE CASE BACK TO THE DISTRICT COURT FOR THE DETERMINATION OF
THESE ISSUES AFTER A FULL INVESTIGATION.  IT IS FITTING THAT WE STATE
OUR REASONS FOR THIS VIEW. 

1.  WE BELIEVE THAT THE REVERSAL OF THESE CONVICTIONS REPRESENTS AN
UNPRECEDENTED AND DANGEROUS DEPARTURE FROM SOUND PRINCIPLES OF JUDICIAL
ADMINISTRATION.  THE COURT HAS OVERTURNED THE RESULTS OF A COMPLEX,
PROTRACTED, AND EXPENSIVE TRIAL BEFORE ANY INVESTIGATION HAS BEEN MADE
OF THE SUSPICIONS WHICH THE SOLICITOR GENERAL BROUGHT TO THE ATTENTION
OF THE COURT PROMPTLY AFTER THE FACTS GIVING RISE TO THEM CAME TO HIS
NOTICE.  WE FIND THE COURT'S JUSTIFICATION OF ITS SUMMARY ACTION
UNCONVINCING. 

THE BASIC JUSTIFICATION GIVEN IS THAT "EITHER THIS COURT OR THE
DISTRICT COURT SHOULD ACCEPT THE STATEMENTS OF THE SOLICITOR GENERAL AS
INDICATING THE UNRELIABILITY OF THIS GOVERNMENT WITNESS."  IN EFFECT,
THE COURT HAS TREATED THE CASE AS IF THE SOLICITOR GENERAL HAD CONCEDED
THE UNTRUSTWORTHINESS OF MAZZEI'S TESTIMONY AT THE TRIAL.  TO US THIS
REFLECTS A MISUNDERSTANDING OF THE SOLICITOR GENERAL'S POSITION.  AS TO
MAZZEI'S TRIAL TESTIMONY, THE SOLICITOR GENERAL - WHOSE FORTHRIGHTNESS
AND CANDOR NO ONE COULD DOUBT, AND WHOSE CONDUCT IN THIS SITUATION HAS
BEEN COMMENDED BY THIS COURT - REPRESENTED THAT THE GOVERNMENT DID NOT
CONSIDER IT YET HAD SUFFICIENT BASIS FOR REGARDING SUCH TESTIMONY AS
UNTRUTHFUL.  AS TO MAZZEI'S TESTIMONY IN COLLATERAL PROCEEDINGS, THE
SOLICITOR GENERAL, WHILE STATING HIS PERSONAL BELIEF THAT SOME OF IT
WAS UNTRUTHFUL, REPRESENTED THAT HE COULD NOT RESPONSIBLY SAY WHETHER
SUCH TESTIMONY INVOLVED PERJURY RATHER THAN PSYCHOPATHIC IMBALANCE,
AND, IF THE LATTER, WHEN THAT CONDITION FIRST AROSE OR WHETHER IT WAS
OF SUCH A CHARACTER AS TO AFFECT MAZZEI'S COMPETENCY AS A WITNESS.  IN
SHORT, WE THINK IT ABUNDANTLY CLEAR THAT THE SOLICITOR GENERAL CONCEDED
NO MORE THAN THAT THE SITUATION WAS ONE THAT CALLED FOR A THOROUGH
INVESTIGATION. 

WE ALSO OBSERVE THAT THE COURT FINDS THAT "NO OTHER CONCLUSION IS
POSSIBLE" THAN THAT "MAZZEI'S CREDIBILITY HAS BEEN WHOLLY DISCREDITED,"
AND THAT SOME PARTS OF HIS POST-TRIAL TESTIMONY HAVE BEEN "POSITIVELY
ESTABLISHED AS UNTRUE."  WE DO NOT SEE HOW THESE CONCLUSIONS CAN BE
REACHED IN THE FACE OF THE GOVERNMENT'S REPRESENTATION THAT IT STILL
BELIEVES MAZZEI'S TRIAL TESTIMONY TO HAVE BEEN "ENTIRELY TRUTHFUL AND
CREDIBLE," AND WITHOUT THE PRODUCTION OF ANY EVIDENCE, OR THE
EXAMINATION AND CROSS-EXAMINATION OF MAZZEI AND THOSE WHO CONTRADICTED
HIM, AS TO THE POST-TRIAL EPISODES WHICH HAVE BEEN CALLED IN QUESTION. 
NOR CAN WE AGREE WITH THE MANNER IN WHICH THE COURT HAS DEALT WITH THE
SOLICITOR GENERAL'S CONTENTIONS AS TO PETITIONERS MESAROSH, ALBERTSON
AND WEISSMAN.  THE COURT SIMPLY SAYS THAT MAZZEI'S TESTIMONY AGAINST
CAREATHERS AND DOLSEN WAS OF SUCH CHARACTER THAT, HAVING BEEN ADMITTED
AGAINST ALL DEFENDANTS, IT TAINTED THE WHOLE TRIAL.  BUT WE CANNOT
UNDERSTAND HOW THIS CAN BE SAID SHORT OF A PAINSTAKING APPRAISAL OF THE
ENTIRE RECORD WHICH THE COURT ACKNOWLEDGES IT HAS NOT READ.  THE COURT
WAS QUITE RIGHT NOT TO READ THE RECORD, FOR IN OUR VIEW THIS WAS NOT
THE BUSINESS OF THIS COURT, BUT THAT OF THE DISTRICT COURT; BUT BY THE
SAME TOKEN, WE THINK, THE DECISION AS TO WHETHER A NEW TRIAL WAS
JUSTIFIED WAS ALSO, IN THE FIRST INSTANCE, THE BUSINESS OF THE DISTRICT
COURT. 

IN THE COMMUNIST PARTY CASE, SUPRA, WHERE THERE WERE UNDENIED CHARGES
OF PERJURY, WE DID NOT UNDERTAKE TO RESOLVE THOSE CHARGES HERE, BUT
INSTEAD SENT THE CASE BACK TO THE BOARD FOR EXPLORATION.  WE THINK A
SIMILAR COURSE SHOULD HAVE BEEN FOLLOWED IN THIS CASE.  THE COURT
SUGGESTS THAT THE SITUATION PRESENTED HERE DIFFERS FROM THAT IN THE
COMMUNIST PARTY CASE, IN THAT THERE THE BOARD WAS THE TRIER OF THE
FACTS, WHEREAS HERE IT WAS FOR THE JURY, NOT THE COURT, TO WEIGH THE
TRUTHFULNESS AND CREDIBILITY OF MAZZEI'S TRIAL TESTIMONY.  THIS,
HOWEVER, OVERLOOKS THE FACT THAT AS A PRELIMINARY TO A NEW TRIAL IT
MUST FIRST BE DETERMINED WHETHER ANY OF MAZZEI'S COLLATERAL TESTIMONY,
NOW DRAWN IN QUESTION, SO REFLECTS UPON THE TRUTHFULNESS OR CREDIBILITY
OF HIS TRIAL TESTIMONY AS TO WARRANT SUBMISSION OF THE CASE TO A NEW
JURY.  THAT PRELIMINARY DETERMINATION HAS ALWAYS BEEN RECOGNIZED AS THE
FUNCTION OF THE TRIAL COURT.  UNITED STATES V. JOHNSON, 327 U.S. 106;
UNITED STATES V. TROCHE, 213 F.2D 401; UNITED STATES V. RUTKIN, 208
F.2D 647; GORDON V. UNITED STATES, 178 F.2D 896, CERT. DENIED, 339 U.S.
935.  (FN9) 

FINALLY, THE COURT SUGGESTS THAT A DIFFERENT RESULT MIGHT HAVE BEEN
REQUIRED IF IT WERE DEALING WITH A DEFENSE MOTION FOR A NEW TRIAL. 
HOWEVER, WE FAIL TO SEE WHY THE GOVERNMENT'S MOTION, WHICH WAS PROMPTED
BY A DESIRE TO ASCERTAIN THE TRUE FACTS IN ALL THEIR RAMIFICATIONS, AND
WHICH IS AIMED AT THE POSSIBILITY OF A NEW TRIAL, CALLS FOR A DIFFERENT
RESULT OR PROCEDURE THAN A DEFENSE MOTION FOR A NEW TRIAL BASED ON
SIMILAR SUSPICIONS. 

2.  THE DISTRICT COURT WAS THE PROPER FORUM FOR THE KIND OF
INVESTIGATION WHICH SHOULD HAVE BEEN CONDUCTED HERE.  THIS COURT, AND
FOR THAT MATTER THE COURTS OF APPEALS, ARE ILL-EQUIPPED FOR SUCH A
TASK.  WE NEED SAY NO MORE THAN THAT APPELLATE COURTS HAVE NO
FACILITIES FOR THE EXAMINATION OF WITNESSES; NOR IN THE NATURE OF
THINGS CAN THEY HAVE THAT INTIMATE KNOWLEDGE OF THE EVIDENCE AND "FEEL"
OF THE TRIAL SCENE, WHICH ARE SO ESSENTIAL TO SOUND JUDGMENT UPON
MATTERS OF SUCH COMPLEXITY AND SUBTLETY AS THOSE INVOLVED HERE, AND
WHICH ARE POSSESSED BY THE TRIAL COURT ALONE. 

3.  CERTAINLY THERE IS NO ROOM FOR DOUBTING THE SOLICITOR GENERAL'S
GOOD FAITH IN THIS MATTER, OR FOR SUPPOSING THAT THE CONDUCT OF THE
FURTHER PROCEEDINGS BELOW WOULD FALL SHORT OF THE HIGHEST STANDARDS OF
CRIMINAL JUSTICE.  WE HAVE THE SOLICITOR GENERAL'S ASSURANCE THAT ALL
OF THE GOVERNMENT'S INFORMATION BEARING UPON MAZZEI'S TRUTHFULNESS AND
CREDIBILITY WOULD BE MADE AVAILABLE TO THE DEFENSE, SUBJECT TO
APPROPRIATE SAFEGUARDS.  (FN10)  AS TO THE END RESULT, THE SOLICITOR
GENERAL STATED THAT IN HIS VIEW THE TRIAL COURT WOULD HAVE TO ACQUIT
PETITIONERS CAREATHERS AND DOLSEN IF IT FOUND THAT MAZZEI HAD PERJURED
HIMSELF AT THE TRIAL OR HAD THEN BEEN INCOMPETENT TO TESTIFY, AND AS TO
THE OTHER PETITIONERS MIGHT HAVE TO ORDER A NEW TRIAL.  (FN11)  WE NEED
NOT CONSIDER AT THIS TIME WHETHER THE SOLICITOR GENERAL'S STATEMENT
EXHAUSTS ALL OF THE FACTORS THAT MIGHT REQUIRE A NEW TRIAL.  SUFFICE IT
TO SAY THAT WE REGARD THE SOLICITOR GENERAL'S APPROACH TO THIS
DIFFICULT SITUATION AS UNEXCEPTIONABLE; AND IT IS HARDLY TO BE ASSUMED
THAT THE DISTRICT COURT WOULD NOT DO ITS FULL DUTY OR WOULD FALL INTO
ERROR.  WE NEED ONLY ADD THAT HAD THE GOVERNMENT'S MOTION BEEN GRANTED
THIS COURT WOULD NO DOUBT HAVE ACCOMPANIED ITS REMAND WITH APPROPRIATE
INSTRUCTIONS TO GUIDE THE DISTRICT COURT IN COPING WITH THIS
COMPLICATED PROBLEM.  AND SURELY THE FACT THAT THIS CASE HAS BEEN LONG
DRAWN-OUT DOES NOT JUSTIFY SHORT-CIRCUITING NORMAL AND ORDERLY JUDICIAL
PROCEDURES.  THE PROCEDURE ADOPED IN UNITED STATES V. FLYNN, 130 F.
SUPP. 412, 131 F. SUPP. 742, COMMENDS ITSELF TO US AS A PROPER MEANS OF
DEALING WITH PROBLEMS SUCH AS THOSE RAISED BY THE SOLICITOR GENERAL'S
MOTION.  WE DO NOT, OF COURSE, EVEN REMOTELY IMPLY THAT WE GIVE ANY
TOLERANCE TO THE NOTION THAT A CRIMINAL CONVICTION FOUND TO BE INFECTED
BY TAINTED TESTIMONY SHOULD BE ALLOWED TO STAND.  WE DO SAY THAT
ASCERTAINMENT OF WHERE THE TRUTH LIES HERE REQUIRES THE KIND OF PROBING
THAT IS BEYOND THE FACILITIES AND PRACTICES OF THIS COURT. 

FOR THE FOREGOING REASONS WE DISSENT.  WE THINK THAT THE GOVERNMENT'S
MOTION TO REMAND SHOULD HAVE BEEN GRANTED. 

FN1  352 U.S. 862. 

FN2  223 F.2D 449. 

FN3  350 U.S. 922. 

FN4  ONE OF THESE EPISODES TOOK PLACE BEFORE THE SENATE PERMANENT
SUBCOMMITTEE ON INVESTIGATIONS, IN WASHINGTON, D.C., ON JUNE 18, 1953
(WHILE THE TRIAL WAS STILL IN PROGRESS).  THERE MAZZEI HAD TESTIFIED
THAT AT A MEETING OF THE CIVIL RIGHTS CONGRESS ON DECEMBER 4, 1952, ONE
LOUIS BORTZ (AN ALLEGED COMMUNIST PARTY FUNCTIONARY) TOLD HIM THAT HE,
BORTZ, HAD BEEN "SELECTED BY THE COMMUNIST PARTY TO DO A JOB IN THE
LIQUIDATION OF SENATOR JOSEPH MCCARTHY."  ON THE ORAL ARGUMENT THE
SOLICITOR GENERAL TOLD US THAT THE GOVERNMENT WAS NOT PREPARED AT THE
TIME OF THE TRIAL TO REGARD THIS TESTIMONY OF MAZZEI AS A FABRICATION,
BECAUSE BORTZ WHEN QUESTIONED ON THIS SUBJECT BEFORE THE SENATE
COMMITTEE HAD PLEADED HIS PRIVILEGE, STATING THAT THE ANSWERS TO THE
QUESTIONS "WOULD" INCRIMINATE HIM.  IT APPEARS THAT MAZZEI'S SENATE
TESTIMONY WAS BROUGHT TO THE ATTENTION OF THE TRIAL JUDGE AND THAT IT
WAS THE BASIS OF AN UNSUCCESSFUL DEFENSE MOTION FOR A MISTRIAL.  THE
SOLICITOR GENERAL FURTHER STATED THAT IT WAS NOT UNTIL THE RECENT
DISCOVERY OF MAZZEI'S LATER TESTIMONY IN THE OTHER POST-TRIAL
COLLATERAL PROCEEDINGS - PARTICULARLY THAT GIVEN IN CERTAIN FLORIDA
DISBARMENT PROCEEDINGS ON JULY 2, 1956 - THAT HIS DEPARTMENT BEGAN TO
HAVE SERIOUS DOUBTS AS TO MAZZEI'S TRUTHFULNESS OR CREDIBILITY. 

FN5  352 U.S. 808. 

FN6  AS TO MAZZEI'S TRIAL TESTIMONY, THE SOLICITOR GENERAL STATED:
"BEFORE THE WITNESS MAZZEI WAS PRESENTED TO THE TRIAL COURT, HIS
TESTIMONY WAS CAREFULLY APPRAISED AS TO WHETHER OR NOT IT WAS SUPPORTED
BY ANY OTHER MATERIAL THE DEPARTMENT HAD, AND HE WAS NOT CONTRADICTED. 
ALTHOUGH WITNESSES TOOK THE STAND IN BEHALF OF THE DEFENDANTS HIS
TESTIMONY WAS NOT CONTRADICTED AT ALL, AND THAT WAS ONE OF THE FACTORS
THAT BOTHERED THE GOVERNMENT IN CONNECTION WITH THESE SUBSEQUENT EVENTS
THAT HAVE CAUSED US TO CONCLUDE THAT THIS MAN'S TESTIMONY SHOULD BE
CAREFULLY REEXAMINED BY THE LOWER COURT IN REGARD TO VALIDITY AT THE
TIME OF THE TRIAL, BECAUSE OF WHAT HAS OCCURRED SINCE, WHICH,
ORDINARILY, EVEN THOUGH THERE WAS ACTUAL PERJURY, WOULD NOT DETERMINE
THE VALIDITY OF THE TESTIMONY AT THE TRIAL, DEPENDING UPON WHAT THE
CIRCUMSTANCES WERE." 

AS TO MAZZEI'S TESTIMONY IN THE COLLATERAL PROCEEDINGS, THE SOLICITOR
GENERAL STATED: "WE BELIEVE THAT HIS 1953 SENATE TESTIMONY IN THAT
REGARD (THE MCCARTHY INCIDENT) WAS NOT CREDIBLE IN LIGHT OF WHAT
HAPPENED LATER IN THE FLORIDA DISBARMENT PROCEEDINGS.  WE DO NOT KNOW
AT THIS POINT WHETHER OR NOT THERE IS SOMETHING PSYCHIATRIC ABOUT THIS
SITUATION.  WE ARE DISTURBED ABOUT THAT."  THE SOLICITOR GENERAL
FURTHER STATED THAT, WHILE HIS "PERSONAL BELIEF IS HE (MAZZEI) WAS NOT
TRUTHFUL" IN HIS TESTIMONY AS TO THE MCCARTHY EPISODE, "I DONT'T WANT
IT LEFT ON THE RECORD THAT I BELIEVE THIS MAN TO BE A PERJURER, BECAUSE
I THINK IN ORDER TO COMMIT PERJURY YOU HAVE TO HAVE THE INTENT, AND
THAT IS WHAT DISTURBS ME ABOUT THIS WHOLE SITUATION.  I CAN'T ACCEPT
HIS TESTIMONY, OVER ALL THESE EVENTS (REFERRING TO MAZZEI'S SENATE AND
FLORIDA TESTIMONY), AS BEING VALID.  BUT WHETHER OR NOT HE KNOWINGLY
DOES IT WITH THE INTENT TO COMMIT PERJURY IS SOMETHING ELSE AND THAT IS
WHAT I CAN'T FOLLOW THROUGH." 

AS TO THE POSSIBILITY OF MAZZEI'S BEING A PSYCHOPATH:  THE
GOVERNMENT'S MOTION PAPERS SHOWED THAT IN 1952 MAZZEI HAD PLEADED
GUILTY TO CHARGES OF ADULTERY AND BASTARDY IN A PENNSYLVANIA STATE
COURT, AND THAT THIS FACT HAD BEEN BROUGHT OUT AT PETITIONER'S TRIAL. 
THEY FURTHER SHOWED THAT IN 1953, AFTER PETITIONERS' TRIAL HAD ENDED,
MAZZEI HAD MOVED IN THE PENNSYLVANIA COURT TO SET ASIDE HIS FORMER
PLEA, ALLEGING THAT HE "WAS NOT GUILTY OF THE CHARGE TO WHICH HE WAS
INDUCED TO PLEAD  ... BUT DID SO ONLY IN HIS OFFICIAL CAPACITY (AS A
GOVERNMENT INFORMANT) AT THE INSISTENCE OF HIS SUPERIOR IN THE FBI TO
AVOID TESTIFYING."  THESE ALLEGATIONS, THE GOVERNMENT INFORMS US, WERE
DENIED UNDER OATH BY THE F.B.I. AND MAZZEI'S APPLICATION TO SET ASIDE
HIS PLEA WAS DENIED BY THE PENNSYLVANIA COURT.  FURTHER, THE
GOVERNMENT'S MOTION PAPERS HERE SHOW THAT IN THE 1956 FLORIDA
DISBARMENT PROCEEDINGS MAZZEI TESTIFIED THAT THE F.B.I. HAD ARRANGED TO
GET HIM INTO THE ARMY SO THAT HE COULD WATCH A CERTAIN COMMUNIST PARTY
MEMBER, WHEREAS IN FACT MAZZEI WAS DRAFTED INTO THE ARMY, AND THE
F.B.I. HAD NOTHING TO DO WITH IT.  THE GOVERNMENT STATES THAT IN THE
SAME PROCEEDINGS MAZZEI TESTIFIED THAT THE F.B.I. PAID HIM ABOUT $1,000
A MONTH FOR EXPENSES, WHEREAS OVER THE ENTIRE PERIOD FROM 1942 TO 1952
THE F.B.I. HAD PAID HIM TOTAL EXPENSE MONEY OF ONLY $172.05; AND THAT
MAZZEI TESTIFIED HE HAD NEVER BEEN ARRESTED, WHEREAS IN FACT HE HAD
BEEN ARRESTED SEVERAL TIMES.  AS TO THESE EPISODES THE SOLICITOR
GENERAL STATED AT THE ORAL ARGUMENT:  "IT CERTAINLY SEEMS TO ME THAT
THAT IS A VERY PECULIAR ACTION, AND THAT HE (MAZZEI) SHOULD HAVE
ANTICIPATED, EVEN IF HE WANTED TO LIE ABOUT IT, THAT THE FBI AGENT
WOULD BE THERE PROMPTLY TESTIFYING TO THE FACTS.  AND SO IT IS VERY
UNUSUAL TO ME THAT A PERSON NORMALLY, WANTING TO FALSIFY, WOULD DO SUCH
A THING.  BUT, I THINK THE TRIAL COURTS HAVE EXAMINED INTO COMPETENCY A
GOOD MANY TIMES, AND DO IT EVERY DAY, AND SHOULD BE ABLE TO DETERMINE
WHETHER OR NOT HE WAS COMPETENT AT THE TIME."  THE SOLICITOR GENERAL
ALSO STATED THAT HE WAS "DISTURBED ABOUT WHETHER IT (A PSYCHOPATHIC
CONDITION) OCCURRED EVEN BACK AT THE TRIAL OF THESE PETITIONERS, AND I
THINK THE COURT SHOULD EXAMINE INTO THAT CAREFULLY."  (THE ABOVE, AND
SIMILAR QUOTATIONS, ARE TAKEN FROM THE TAPE RECORDING OF THE SOLICITOR
GENERAL'S ORAL ARGUMENT BEFORE THIS COURT.)    FN7  AS TO THIS THE
SOLICITOR GENERAL STATED:  "IF I MAY SAY ONE WORD MORE IN REGARD TO
THAT (THE FAILURE OF THE DEFENSE TO MOVE FOR A NEW TRIAL), I FEEL THAT
THE OBLIGATION OF THE GOVERNMENT IN A SITUATION OF THIS KIND REACHES
FAR BEYOND THE RIGHTS OF THESE PARTICULAR DEFENDANTS, AND IT IS ITS
DUTY TO THIS COURT, AND TO THE COUNTRY, AND IT IS OUR OBLIGATION IN A
SITUATION OF THIS KIND, TO TRY AND SEE THAT JUSTICE IS DONE  ...  .  WE
MAY BE CRITICIZED FOR BEING TOO LATE, BUT I THINK IT IS NEVER TOO LATE,
TO TRY TO DO JUSTICE.  HAVING COME TO THAT CONCLUSION (THAT THE
VALIDITY OF THIS TESTIMONY IS OPEN TO DOUBT), I THINK WE SHOULD COME
BEFORE THE COURTS, WHICHEVER ONE IS PROPER, AND TRY TO GET A CORRECTION
OF THE WRONG, IF THERE IS ONE." 

FN8  THE SOLICITOR GENERAL STATED:  "WELL, WE WOULD HAVE RECOMMENDED
THAT REVERSAL TO THE COURT IF WE HAD BEEN SATISFIED OURSELVES THAT
MAZZEI'S TESTIMONY AT THE TIME OF TRIAL - WHICH WE THINK WAS THE
DETERMINING POINT IN THE PROPER CONDUCT OF JUDICIAL PROCEEDINGS - WAS
UNTRUTHFUL,  ...  BECAUSE WE FEEL AT LEAST AS TO THESE TWO DEFENDANTS
(PETITIONERS CAREATHERS AND DOLSEN) THERE WAS NO OTHER BASIS FOR THEIR
CONVICTION.  BUT IT IS POSSIBLE THAT SOMETHING HAS HAPPENED TO THIS MAN
MAZZEI, THAT HIS UNCONTRADICTED TESTIMONY WAS VALID AT THE TIME OF
TRIAL, AND IT SEEMED TO US THAT WITH A LONG CASE TRIED LIKE THIS AND
THE JURY INVOLVED AND THE TRIAL COURT AND THE COURTS OF APPEAL, AND SO
ON, THE PROPER THING TO DO WAS TO SEND IT BACK TO THE TRIAL COURT FOR
ITS EXAMINATION CAREFULLY INTO THIS QUESTION TO DETERMINE WHAT THE FACT
IS, AND THEN ASSUME THAT HE (THE TRIAL COURT) WOULD DO HIS DUTY, WHICH
I THINK HE WILL, AND HAVE THE CASE HANDLED PROPERLY AT THAT POINT." 

FN9  WHATEVER MAY BE THE DIFFERENCES BETWEEN THE RULES GOVERNING A
MOTION FOR A NEW TRIAL BASED UPON RECANTATION OF TRIAL TESTIMONY OR
OTHER TYPES OF "NEWLY DISCOVERED" EVIDENCE, ANTE, P. 12, N. 6,
CERTAINLY NONE OF THOSE DIFFERENCES SUGGEST THAT THE TRIAL COURT IS NOT
THE PROPER TRIBUNAL FOR RESOLUTION OF THE ISSUES PRESENTED BY SUCH A
MOTION. 

FN10  IN RESPONSE TO A QUESTION AS TO WHETHER THE DEFENSE WOULD BE
FURNISHED WITH ALL OF THE GOVERNMENT'S INFORMATION BEARING ON THE TRUTH
OF MAZZEI'S SENATE TESTIMONY RELATING TO THE MCCARTHY INCIDENT, THE
SOLICITOR GENERAL STATED:  "WELL, THAT WOULD DEPEND ON WHAT THE TRIAL
COURT THOUGHT SHOULD BE DONE, I THINK, IN THE CONDUCT OF THE CASE.  THE
ONLY REASON I SUGGEST THAT POSSIBLY IT SHOULD NOT BE MADE AVAILABLE TO
THEM IS THAT IN THIS WHOLE PROBLEM THERE ARE SEVERAL PEOPLE INVOLVED
WHO MIGHT GET HURT BY A PUBLIC AIRING OF THEIR CONNECTION WITH THIS
MATTER.  AND IT WOULD BE TOO BAD, AND VERY UNFORTUNATE, IF IT WASN'T
HANDLED SO AS NOT TO INJURE THOSE PEOPLE WHEN IT ISN'T NECESSARY TO THE
PROPER HANDLING OF THIS PROBLEM  ...  .  WE WILL DO WHATEVER THIS COURT
THINKS WE SHOULD DO, BUT WHAT I HAD IN MIND WAS TO LAY BEFORE THE JUDGE
ALL OF THE INFORMATION THE GOVERNMENT HAS ABOUT THE ENTIRE MATTER, AND
THEN HE CAN SORT OUT AND PROTECT THE VARIOUS INNOCENT PERSONS, WHO ARE
DESCRIBED IN THE FILES, AND SHOULD NOT BE HURT IN SUCH A PROCEEDING,
AND YET GIVE THEM (THE DEFENDANTS) THE BENEFIT OF THE FULL AND COMPLETE
PROTECTION IN SUCH A PROCEEDING AS TO WHAT THE FACTS ARE IN THIS MATTER
...  .  I HAD IN MIND THAT CERTAIN PORTIONS THE JUDGE WOULD HANDLE IN
CAMERA SO AS TO PROTECT INNOCENT PEOPLE.  AND ALL OTHERS, THAT WOULD
REACH INTO THE MERITS OF THE SITUATION, WOULD CERTAINLY BE HANDLED BY
THE COURT IN SUCH A WAY AS TO GIVE ALL THE PARTIES AN ADEQUATE
OPPORTUNITY TO PRESENT THEIR DEFENSE." 

FN11  THE SOLICITOR GENERAL STATED:  "YES, WITHOUT HIS (MAZZEI'S)
TESTIMONY AS TO THOSE DEFENDANTS (CAREATHERS AND DOLSEN), I DO NOT
THINK THEY COULD HAVE BEEN CONVICTED.  I THINK THE COURT WOULD HAVE HAD
TO DIRECT A VERDICT IN THEIR FAVOR, AT LEAST.  AS TO THE OTHER THREE
DEFENDANTS, THERE IS PRACTICALLY NO TESTIMONY BY THIS WITNESS.  IT IS
VERY SLIGHT.  I COULD GIVE IT TO THE COURT  ...  . IT SEEMS TO ME THE
LOWER COURT WOULD HAVE TO EXAMINE THE SITUATION AND SEE  ...  WHETHER
OR NOT IT (MAZZEI'S TESTIMONY) HAD AN EFFECT ON THE CONVICTION OF EVERY
ONE OF THE DEFENDANTS  ...  .  IT WOULD SEEM TO ME THAT  ...  THE TRIAL
COURT COULD DETERMINE THE EXTENT OF THE EFFECT THAT THIS WITNESS MIGHT
HAVE HAD ON THE OTHER DEFENDANTS, BECAUSE THERE WAS A LARGE VOLUME OF
TESTIMONY IN REGARD TO THE OTHER DEFENDANTS THAT BORE DIRECTLY UPON
THEIR PARTICIPATION IN THE CONSPIRACY, AND THEIR OVERT ACTS; AND THE
TESTIMONY OF THIS WITNESS WAS SO LIMITED AS TO EVEN A REFERENCE - HE
SAID THAT THEY SOLICITED MONEY FROM HIM, TWO OF THEM - AND IS SO SLIGHT
AS TO ANY DIRECT CONNECTION WITH IT, THAT IT SEEMS TO ME THE COURT
WOULD HAVE TO WEIGH WHETHER OR NOT, UNDER THAT SITUATION, HE WOULD
DECIDE THAT THERE IS A DOUBT IN HIS MIND, IN WHICH CASE I AM SURE HE
WOULD DIRECT A NEW TRIAL."  IN THE ABSENCE OF AN EXHAUSTIVE EXAMINATION
OF THE VOLUMINOUS RECORD, WE ARE UNABLE TO UNDERSTAND HOW ANY ADEQUATE
EVALUATION COULD BE MADE OF THESE CONSIDERATIONS AS TO THE PETITIONERS
MESAROSH, ALBERTSON, AND WEISSMAN.  WHEN HE WAS ASKED TO "ASSUME" THAT
THE TRIAL COURT WOULD FIND MAZZEI TO HAVE BEEN A PERJURER, AND HIS
TRIAL TESTIMONY TO HAVE BEEN OF IMPORTANCE IN THE CONVICTION OF THESE
THREE PETITIONERS, THE SOLICITOR GENERAL PROMPTLY STATED THAT HE WAS
"SATISFIED" THAT THE COURT WOULD SET ASIDE THEIR CONVICTIONS "IF HE
CAME TO THESE CONCLUSIONS." 

REPORTER'S NOTE:  THE FOLLOWING MEMORANDUM BY MR. JUSTICE FRANKFURTER
WAS NOT FILED IN CONNECTION WITH THE FOREGOING OPINION OF THE COURT NOR
IN CONNECTION WITH THE COURT'S MEMORANDUM DECISION OF OCTOBER 10, 1956,
POST, P. 862.  IT WAS FILED IN CONNECTION WITH THE COURT'S ORDER OF
OCTOBER 8, 1956, POST, P. 808, WHICH POSTPONED TO THE HEARING ON THE
MERITS CONSIDERATION OF THE GOVERNMENT'S MOTION TO REMAND, DIRECTED
COUNSEL AT THE OUTSET TO ADDRESS THEMSELVES TO THAT MOTION, AND
ALLOTTED 30 ADDITIONAL MINUTES TO EACH SIDE FOR THAT PURPOSE.  IT IS
REPORTED BELOW FOR THE CONVENIENCE OF THOSE MEMBERS OF THE BENCH AND
BAR WHO MAY WISH TO READ ALL OF THE VIEWS EXPRESSED BY MEMBERS OF THE
COURT IN CONNECTION WITH THIS CASE. 

MR. JUSTICE FRANKFURTER. 

LESS THAN SIX MONTHS AGO, IN COMMUNIST PARTY V. CONTROL BOARD, 351
U.S. 115, A CASE THAT RAISED IMPORTANT CONSTITUTIONAL ISSUES, THIS
COURT REFUSED TO PASS ON THOSE ISSUES WHEN NEWLY DISCOVERED EVIDENCE
WAS ALLEGED TO DEMONSTRATE THAT THE RECORD OUT OF WHICH THOSE ISSUES
AROSE WAS TAINTED.  IT DID SO IN THE FOLLOWING LANGUAGE: 

"WHEN UNCONTESTED CHALLENGE IS MADE THAT A FINDING OF SUBVERSIVE
DESIGN BY PETITIONER WAS IN PART THE PRODUCT OF THREE PERJURIOUS
WITNESSES, IT DOES NOT REMOVE THE TAINT FOR A REVIEWING COURT TO FIND
THAT THERE IS AMPLE INNOCENT TESTIMONY TO SUPPORT THE BOARD'S
FINDINGS.  IF THESE WITNESSES IN FACT COMMITTED PERJURY IN TESTIFYING
IN OTHER CASES ON SUBJECT MATTER SUBSTANTIALLY LIKE THAT OF THEIR
TESTIMONY IN THE PRESENT PROCEEDINGS, THEIR TESTIMONY IN THIS
PROCEEDING IS INEVITABLY DISCREDITED AND THE BOARD'S DETERMINATION MUST
DULY TAKE THIS FACT INTO ACCOUNT.  WE CANNOT PASS UPON A RECORD
CONTAINING SUCH CHALLENGED TESTIMONY  ...  ."  351 U.S., AT 124-125. 

THE COURT IN THAT CASE, OVER THE PROTEST OF THE GOVERNMENT, REMANDED
THE PROCEEDINGS TO THE SUBVERSIVE ACTIVITIES CONTROL BOARD SO THAT IT
MIGHT CONSIDER THE ALLEGATIONS AGAINST THE WITNESSES AND, IF NECESSARY,
REASSESS THE EVIDENCE PURGED OF TAINT. 

IN THIS CASE, THE GOVERNMENT ITSELF HAS PRESENTED A MOTION TO REMAND
THE CASE, ALLEGING THAT ONE OF ITS WITNESSES, JOSEPH MAZZEI, SINCE HE
TESTIFIED IN THIS CASE, "HAS GIVEN CERTAIN SWORN TESTIMONY (BEFORE
OTHER TRIBUNALS) WHICH THE GOVERNMENT, ON THE BASIS OF THE INFORMATION
IN ITS POSSESSION, NOW HAS SERIOUS REASON TO DOUBT."  SOME OF THE
OCCURRENCES ON WHICH THE MOTION IS BASED GO BACK TO 1953.  (IT SHOULD
BE NOTED THAT THE PETITION FOR CERTIORARI WAS FILED IN THIS COURT ON
OCTOBER 6, 1955.)  THUS THE ACTION BY THE GOVERNMENT AT THIS TIME MAY
APPEAR BELATED.  THIS IS IRRELEVANT TO THE DISPOSITION OF THIS MOTION. 
THE FACT IS THAT THE HISTORY OF MAZZEI'S POST-TRIAL TESTIMONY DID NOT
COME TO THE SOLICITOR GENERAL'S NOTICE UNTIL LESS THAN TEN DAYS BEFORE
THE PRESENTATION OF THIS MOTION.*  IT WOULD, I BELIEVE, HAVE BEEN A
DISREGARD OF THE RESPONSIBILITY OF THE LAW OFFICER OF THE GOVERNMENT
ESPECIALLY CHARGED WITH REPRESENTING THE GOVERNMENT BEFORE THIS COURT
NOT TO BRING THESE DISTURBING FACTS TO THE COURT'S ATTENTION ONCE THEY
CAME TO HIS ATTENTION.  AND SO, IT WOULD BE UNBECOMING TO SPEAK OF THE
CANDOR OF THE SOLICITOR GENERAL IN SUBMITTING THESE FACTS TO THE COURT
BY WAY OF A FORMAL MOTION FOR REMAND.  IT OUGHT TO BE ASSUMED THAT A
SOLICITOR GENERAL WOULD DO THIS AS A MATTER OF COURSE. 

*THE MOTION FOR REMAND STATES:  "THE COMPLETE DETAILS OF MAZZEI'S
TESTIMONY IN FLORIDA, AS SET FORTH IN THIS MOTION, DID NOT COME TO THE
ATTENTION OF THE DEPARTMENT OF JUSTICE UNTIL SEPTEMBER 1956, AND THE
HISTORY OF MAZZEI'S POST-TRIAL TESTIMONY DID NOT COME TO THE SOLICITOR
GENERAL'S ATTENTION UNTIL LESS THAN TEN DAYS AGO." 

THE GOVERNMENT IN ITS MOTION SETS FORTH THE FACTS WHICH LEAD IT TO
URGE REMAND.  THE GOVERNMENT LISTS FIVE INCIDENTS OF TESTIMONY BY
MAZZEI BETWEEN 1953 AND 1956 ABOUT THE ACTIVITIES OF ALLEGED COMMUNISTS
AND ABOUT HIS OWN ACTIVITIES IN BEHALF OF THE FEDERAL BUREAU OF
INVESTIGATION WHICH IT NOW "HAS SERIOUS REASON TO DOUBT."  THE
GOVERNMENT ALSO NOTES THAT IN THE TRIAL OF THIS CASE MAZZEI "GAVE
TESTIMONY WHICH DIRECTLY INVOLVED TWO OF THE PETITIONERS, CAREATHERS
AND DOLSEN."  ALTHOUGH THE GOVERNMENT MAINTAINS "THAT THE TESTIMONY
GIVEN BY MAZZEI AT THE TRIAL WAS ENTIRELY TRUTHFUL AND CREDIBLE," IT
DEEMS THE INCIDENTS IT SETS FORTH SO SIGNIFICANT THAT IT ASKS THAT THE
ISSUE OF MAZZEI'S TRUTHFULNESS BE DETERMINED BY THE DISTRICT COURT
AFTER A HEARING SUCH AS WAS HELD IN A SIMILAR SITUATION IN UNITED
STATES V. FLYNN, 130 F. SUPP. 412. 

HOW TO DISPOSE OF THE GOVERNMENT'S MOTION RAISES A QUESTION OF
APPROPRIATE JUDICIAL PROCEDURE.  THE COURT HAS CONCLUDED NOT TO PASS ON
THE SOLICITOR GENERAL'S MOTION AT THIS TIME.  IT RETAINS THE MOTION TO
BE HEARD AT THE OUTSET OF THE ARGUMENT OF THE CASE AS HERETOFORE SET
DOWN.  I DEEM IT A MORE APPROPRIATE PROCEDURE THAT THE MOTION BE
GRANTED FORTHWITH, WITH DIRECTIONS TO THE DISTRICT COURT TO HEAR THE
ISSUES RAISED BY THIS MOTION.  I FEEL IT INCUMBENT TO STATE THE REASONS
FOR THIS CONVICTION.  ARGUMENT CAN HARDLY DISCLOSE FURTHER INFORMATION
ON WHICH TO BASE A DECISION ON THE MOTION.  FURTHERMORE, THERE MAY BE
CONTROVERSY OVER THE FACTS, AND THE JUDICIAL METHODS FOR SIFTING
CONTROVERTED FACTS ARE NOT AVAILABLE HERE.  THE BASIC PRINCIPLE OF THE
COMMUNIST PARTY CASE THAT ALLEGATIONS OF TAINTED TESTIMONY MUST BE
RESOLVED BEFORE THIS COURT WILL PASS ON A CASE IS DECISIVE.   INDEED,
THE SITUATION HERE IS AN EVEN STRONGER ONE FOR APPLICATION OF THAT
PRINCIPLE, FOR WE HAVE BEFORE US A STATEMENT BY THE GOVERNMENT THAT IT
"NOW HAS SERIOUS REASON TO DOUBT" TESTIMONY GIVEN IN OTHER PROCEEDINGS
BY MAZZEI, ONE OF ITS SPECIALISTS ON COMMUNIST ACTIVITIES, AND A
FURTHER STATEMENT BY THE GOVERNMENT THAT MAZZEI'S TESTIMONY IN THIS
CASE "DIRECTLY INVOLVED TWO OF THE PETITIONERS." 

THIS COURT SHOULD NOT EVEN HYPOTHETICALLY ASSUME THE TRUSTWORTHINESS
OF THE EVIDENCE IN ORDER TO PASS ON OTHER ISSUES.  THERE IS MORE AT
STAKE HERE EVEN THAN AFFORDING GUIDANCE FOR THE DISTRICT COURT IN THIS
PARTICULAR CASE.  THIS COURT SHOULD NOT PASS ON A RECORD CONTAINING
UNRESOLVED ALLEGATIONS OF TAINTED TESTIMONY.  THE INTEGRITY OF THE
JUDICIAL PROCESS IS AT STAKE.  THE STARK ISSUE OF RUDIMENTARY MORALITY
IN CRIMINAL PROSECUTIONS SHOULD NOT BE LOST IN THE MELANGE OF MORE THAN
A DOZEN OTHER ISSUES PRESENTED BY PETITIONERS.  AND THE IMPORTANCE OF
THUS VINDICATING THE SCRUPULOUS ADMINISTRATION OF JUSTICE AS A
CONTINUING PROCESS FAR OUTWEIGHS THE DISADVANTAGE OF POSSIBLE DELAY IN
THE ULTIMATE DISPOSITION OF THIS CASE.  THE CASE SHOULD BE REMANDED NOW
FOR A HEARING BEFORE THE TRIAL JUDGE. 
..END :




















UNITED STATES V. MCKESSON & ROBBINS, INC. 351 U.S. 305 


NO. 448.  ARGUED APRIL 30, 1956.  - DECIDED JUNE 11, 1956.  - REVERSED
AND REMANDED. 


APPELLEE IS THE LARGEST DRUG WHOLESALER IN THE UNITED STATES AND SELLS
TO RETAILERS IN MANY STATES.  IT ALSO MANUFACTURES ITS OWN LINE OF
BRAND-NAME DRUGS, WHICH IT SELLS TO RETAILERS AND TO INDEPENDENT
WHOLESALERS IN MANY STATES.  IT REFUSED TO SELL ITS BRAND PRODUCTS TO
INDEPENDENT WHOLESALERS WHICH HAD NOT ENTERED INTO AGREEMENTS THAT, IN
WHOLESALING APPELLEE'S PRODUCTS, THEY WOULD ADHERE TO THE WHOLESALE
PRICES FIXED BY APPELLEE.  AS A RESULT, MANY INDEPENDENT WHOLESALERS
WHICH WERE IN DIRECT COMPETITION WITH APPELLEE'S WHOLESALING OPERATIONS
SIGNED SUCH AGREEMENTS.  HELD:  SUCH PRICE-FIXING AGREEMENTS WERE NOT
EXEMPTED FROM THE PROHIBITIONS OF SEC. 1 OF THE SHERMAN ACT BY THE
"FAIR-TRADE" PROVISIONS OF THE MILLER-TYDINGS ACT OR THE MCGUIRE ACT. 
PP. 306-316. 

(A)  SUCH PRICE-FIXING AGREEMENTS ARE ILLEGAL PER SE UNDER SEC. 1 OF
THE SHERMAN ACT, UNLESS THEY ARE WITHIN THE EXEMPTIONS OF THE MILLER
TYDINGS ACT OR THE MCGUIRE ACT.  PP. 308-311. 

(B)  THE EXEMPTIONS OF THE MILLER-TYDINGS ACT AND THE MCGUIRE ACT ARE
EXPRESSLY MADE INAPPLICABLE TO AGREEMENTS "BETWEEN WHOLESALERS" OR
"BETWEEN PERSONS, FIRMS, OR CORPORATIONS IN COMPETITION WITH EACH
OTHER," AND THESE WORDS MUST BE TAKEN IN THEIR NORMAL AND CUSTOMARY
MEANING.  PP. 311-312. 

(C)  APPELLEE IS ADMITTEDLY A "WHOLESALER" WITH RESALE PRICE
MAINTENANCE CONTRACTS WITH MANY OTHER "WHOLESALERS" WHO ARE IN
COMPETITION WITH IT, AND IT CANNOT BE BROUGHT WITHIN THE EXEMPTIONS OF
THE MILLER-TYDINGS ACT OR THE MCGUIRE ACT BY RESORT TO A FICTION THAT
IT ACTS ONLY AS A MANUFACTURER WHEN IT CONCLUDES SUCH AGREEMENTS WITH
COMPETING WHOLESALERS.  P. 312. 

(D)  EVEN IF APPELLEE WERE NOT PROPERLY CONSIDERED A "WHOLESALER," IT
WOULD NOT BE WITHIN THE EXEMPTIONS OF THE MILLER-TYDINGS ACT OR THE
MCGUIRE ACT, BECAUSE THE PRICE-FIXING AGREEMENTS HERE INVOLVED ARE
"BETWEEN PERSONS, FIRMS, OR CORPORATIONS IN COMPETITION WITH EACH
OTHER" WITHIN THE MEANING OF THOSE ACTS.  PP. 312-313. 

(E)  THIS RESTRICTIVE LANGUAGE IS UNAMBIGUOUS, AND A DIFFERENT RESULT
IS NOT REQUIRED BY THE LEGISLATIVE HISTORY OF THE MCGUIRE ACT.  PP. 313
315. 

(F)  THESE LIMITATIONS MUST BE CONSTRUED STRICTLY, SINCE RESALE PRICE
MAINTENANCE IS A PRIVILEGE RESTRICTIVE OF A FREE ECONOMY.  PP. 315
316. 

UNITED STATES V. MCKESSON & ROBBINS, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL BY THE GOVERNMENT UNDER THE EXPEDITING ACT,
32 STAT. 823, 15 U.S.C. SEC. 29, AS AMENDED BY 62 STAT. 869, FROM A
DECISION OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
INTERPRETING THE SCOPE OF THE EXEMPTION FROM THE ANTITRUST LAWS
PROVIDED BY "FAIR TRADE" LEGISLATION. 

APPELLEE, A MARYLAND CORPORATION WITH ITS HOME OFFICE IN NEW YORK, IS
THE LARGEST DRUG WHOLESALER IN THE UNITED STATES.  OPERATING THROUGH 74
WHOLESALE DIVISIONS LOCATED IN 35 STATES, IT SELLS DRUGSTORE
MERCHANDISE OF VARIOUS BRANDS TO RETAILERS, PRINCIPALLY DRUGSTORES,
SUBSTANTIALLY THROUGHOUT THE NATION.  FOR THE FISCAL YEAR ENDED MARCH
31, 1954, ITS SALES OF ALL DRUG PRODUCTS AMOUNTED TO $338,000,000. 

APPELLEE IS ALSO A MANUFACTURER OF ITS OWN LINE OF DRUG PRODUCTS, THE
TOTAL SALES OF WHICH AMOUNTED TO $11,000,000 FOR THE YEAR ENDED MARCH
31, 1954.  ITS MANUFACTURING OPERATION IS CONDUCTED THROUGH A SINGLE
MANUFACTURING DIVISION, MCKESSON LABORATORIES, LOCATED AT BRIDGEPORT,
CONNECTICUT.  THIS DIVISION, LIKE EACH OF APPELLEE'S WHOLESALE
DIVISIONS, HAS A SEPARATE HEADQUARTERS AND A SEPARATE STAFF OF
EMPLOYEES, BUT NONE OF THE 75 DIVISIONS IS SEPARATELY INCORPORATED. 
ALL ARE COMPONENT PARTS OF THE SAME CORPORATION AND ARE RESPONSIBLE TO
THE CORPORATION'S PRESIDENT AND BOARD OF DIRECTORS. 

APPELLEE DISTRIBUTES ITS OWN BRAND PRODUCTS TO RETAILERS THROUGH TWO
CHANNELS:  (1) DIRECTLY TO RETAILERS, AND (2) THROUGH INDEPENDENT
WHOLESALERS.  THE MAJOR PORTION OF ITS BRAND PRODUCTS IS DISTRIBUTED TO
RETAILERS THROUGH ITS OWN WHOLESALE DIVISIONS.  APPELLEE ALSO MAKES
DIRECT SALES TO IMPORTANT RETAILERS THROUGH ITS MANUFACTURING
DIVISION.  MOST OF APPELLEE'S SALES TO INDEPENDENT WHOLESALERS ARE MADE
BY ITS MANUFACTURING DIVISION, BUT ITS WHOLESALE DIVISIONS SOLD
APPROXIMATELY $200,000 OF MCKESSON BRAND PRODUCTS TO OTHER WHOLESALERS
DURING THE FISCAL YEAR ENDED JUNE 30, 1952. 

TO THE EXTENT POSSIBLE UNDER STATE LAW, APPELLEE REQUIRES ALL
RETAILERS OF ITS BRAND PRODUCTS TO SELL THEM AT "FAIR TRADE" RETAIL
PRICES FIXED BY APPELLEE.  THESE PRICES ARE SET FORTH IN PUBLISHED
SCHEDULES OF WHOLESALE AND RETAIL PRICES. 

APPELLEE ALSO HAS "FAIR TRADE" AGREEMENTS WITH 21 INDEPENDENT
WHOLESALERS WHO BUY FROM ITS MANUFACTURING DIVISION.  SIXTEEN OF THESE
INDEPENDENTS COMPETE WITH APPELLEE'S WHOLESALE DIVISIONS.  THE OTHER 5
COMPETE WITH THE MANUFACTURING DIVISION FOR SALES TO CHAIN DRUGSTORES
LOCATED IN THEIR TRADING AREAS.  ON JUNE 6, 1951, IN ACCORDANCE WITH
APPELLEE'S "FAIR TRADE" POLICY, A VICE PRESIDENT IN CHARGE OF
MERCHANDISING NOTIFIED APPELLEE'S WHOLESALE DIVISIONS THAT: 

"NONE OF OUR WHOLESALE DIVISIONS WILL SELL ANY MCKESSON LABELED
PRODUCTS TO ANY WHOLESALER WHO HAS NOT ENTERED INTO A FAIR TRADE
CONTRACT WITH MCKESSON LABORATORIES." 

AS A RESULT, 73 OF THE INDEPENDENT WHOLESALERS WHO HAD BEEN DEALING
WITH MCKESSON WHOLESALE DIVISIONS ENTERED INTO "FAIR TRADE" AGREEMENTS
WITH MCKESSON BY WHICH THEY BOUND THEMSELVES IN RESELLING ITS BRAND
PRODUCTS TO ADHERE TO THE WHOLESALE PRICES FIXED BY IT.  EACH OF THESE
INDEPENDENT WHOLESALERS IS IN DIRECT COMPETITION WITH THE MCKESSON
WHOLESALE DIVISION FROM WHICH IT BUYS. 

THE GOVERNMENT, UNDER SECTION 4 OF THE SHERMAN ACT, (FN1) BROUGHT
THIS CIVIL ACTION FOR INJUNCTIVE RELIEF AGAINST APPELLEE IN THE
DISTRICT COURT.  THE COMPLAINT CHARGED THAT APPELLEE'S "FAIR TRADE"
AGREEMENTS WITH INDEPENDENT WHOLESALERS WITH WHOM IT WAS IN COMPETITION
CONSTITUTED ILLEGAL PRICE FIXING IN VIOLATION OF SECTION 1 OF THE ACT. 
APPELLEE ADMITTED THE CONTRACTS, BUT CLAIMED THAT THEY WERE EXEMPTED
FROM THE SHERMAN ACT BY THE MILLER-TYDINGS ACT (FN2) AND THE MCGUIRE
ACT.  (FN3) 

THE GOVERNMENT MOVED FOR SUMMARY JUDGMENT ON THE GROUND THAT THESE
ACTS DO NOT IMMUNIZE MCKESSON'S AGREEMENTS WITH OTHER WHOLESALERS,
SINCE THEY EXPRESSLY EXCLUDE FROM THEIR EXEMPTION FROM THE ANTITRUST
LAWS CONTRACTS "BETWEEN WHOLESALERS" OR "BETWEEN PERSONS, FIRMS, OR
CORPORATIONS IN COMPETITION WITH EACH OTHER."  THE DISTRICT JUDGE
DENIED THE MOTION.  (FN4)  HE RECOGNIZED THAT PRICE FIXING IS ILLEGAL
PER SE UNDER THE SHERMAN ACT, BUT ANNOUNCED THAT IN "FAIR TRADE" CASES
"NO INFLEXIBLE STANDARD SHOULD BE LAID DOWN TO GOVERN IN ADVANCE."  HE
WAS "UNWILLING, AT THIS STAGE OF CASE LAW DEVELOPMENT OF LEGISLATIVELY
SANCTIONED RESALE PRICE FIXING" TO APPLY THE PER SE RULE "IN FAIR TRADE
SITUATIONS ABSENT A FACTUAL SHOWING OF ILLEGALITY."  SUCH A SHOWING, HE
SAID, COULD NOT BE MADE "SIMPLY BY POINTING TO SOME RESTRAINT OF
COMPETITION."  THE "TRUE TEST OF LEGALITY" OF "FAIR TRADE" AGREEMENTS
BETWEEN A PRODUCER-WHOLESALER AND INDEPENDENT WHOLESALERS, THE COURT
HELD, "IS WHETHER SOME ADDITIONAL RESTRAINT DESTRUCTIVE OF COMPETITION
IS OCCASIONED."  (FN5) 

THE CASE THEN PROCEEDED TO TRIAL BEFORE ANOTHER DISTRICT JUDGE, WHO
CONCURRED IN THE "RULING THAT FAIR TRADE PRICE FIXING BY A PRODUCER
WHOLESALER WAS NOT PER SE ILLEGAL UNDER THE SHERMAN ACT," AND HELD THAT
THE GOVERNMENT'S EVIDENCE DID NOT ESTABLISH AN "ADDITIONAL RESTRAINT"
WITHIN THE MEANING OF THE TEST PREVIOUSLY ENUNCIATED IN THE CASE. 
(FN6)  HE ORDERED THE COMPLAINT DISMISSED, AND THE GOVERNMENT TOOK A
DIRECT APPEAL UNDER THE EXPEDITING ACT.  WE NOTED PROBABLE
JURISDICTION.  (FN7) 

THE ISSUE PRESENTED IS A NARROW ONE OF STATUTORY INTERPRETATION.  THE
GOVERNMENT DOES NOT QUESTION THE SO-CALLED VERTICAL "FAIR TRADE"
AGREEMENTS BETWEEN MCKESSON AND RETAILERS OF MCKESSON BRAND PRODUCTS. 
IT CHALLENGES ONLY APPELLEE'S PRICE-FIXING AGREEMENTS WITH INDEPENDENT
WHOLESALERS WITH WHOM IT IS IN COMPETITION. 


"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 HEREBY DECLARED TO BE ILLEGAL  ...  ." 
(FN8) 

IT HAS BEEN HELD TOO OFTEN TO REQUIRE ELABORATION NOW THAT PRICE
FIXING IS CONTRARY TO THE POLICY OF COMPETITION UNDERLYING THE SHERMAN
ACT AND THAT ITS ILLEGALITY DOES NOT DEPEND ON A SHOWING OF ITS
UNREASONABLENESS, SINCE IT IS CONCLUSIVELY PRESUMED TO BE
UNREASONABLE.  (FN9)  IT MAKES NO DIFFERENCE WHETHER THE MOTIVES OF THE
PARTICIPANTS ARE GOOD OR EVIL; WHETHER THE PRICE FIXING IS ACCOMPLISHED
BY EXPRESS CONTRACT OR BY SOME MORE SUBTLE MEANS; WHETHER THE
PARTICIPANTS POSSESS MARKET CONTROL; WHETHER THE AMOUNT OF INTERSTATE
COMMERCE AFFECTED IS LARGE OR SMALL; OR WHETHER THE EFFECT OF THE
AGREEMENT IS TO RAISE OR TO DECREASE PRICES.  (FN10) 

IN UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, IN HOLDING
PRICE-FIXING AGREEMENTS TO BE ILLEGAL PER SE, THIS COURT SAID: 

"CONGRESS HAS NOT LEFT WITH US THE DETERMINATION OF WHETHER OR NOT
PARTICULAR PRICE-FIXING SCHEMES ARE WISE OR UNWISE, HEALTHY OR
DESTRUCTIVE.  ...  THE SHERMAN ACT, SO FAR AS PRICE-FIXING AGREEMENTS
ARE CONCERNED, ESTABLISHES ONE UNIFORM RULE APPLICABLE TO ALL
INDUSTRIES ALIKE."  (FN11) 

AND IT HAS BEEN SAID BY THIS COURT: 

"A DISTRIBUTOR OF A TRADE-MARKED ARTICLE MAY NOT LAWFULLY LIMIT BY
AGREEMENT, EXPRESS OR IMPLIED, THE PRICE AT WHICH OR THE PERSONS TO
WHOM ITS PURCHASER MAY RESELL, EXCEPT AS THE SELLER MOVES ALONG THE
ROUTE WHICH IS MARKED BY THE MILLER-TYDINGS ACT."  (FN12) 

THE QUESTION BEFORE US IS WHETHER THE PRICE-FIXING AGREEMENTS
CHALLENGED HEREIN MOVE ALONG THAT ROUTE.  IF THEY DO NOT, THEY ARE
ILLEGAL PER SE.  THERE IS NO BASIS FOR SUPPOSING THAT CONGRESS, IN
ENACTING THE MILLER-TYDINGS AND MCGUIRE ACTS, INTENDED ANY CHANGE IN
THE TRADITIONAL PER SE DOCTRINE.  THE DISTRICT COURT WAS PLAINLY IN
ERROR IN ATTEMPTING TO CREATE A CATEGORY OF AGREEMENTS WHICH ARE
OUTSIDE THE EXEMPTION OF THOSE ACTS BUT WHICH SHOULD NEVERTHELESS BE
SPARED FROM APPLICATION OF THE PER SE RULE. 

IN THE MILLER-TYDINGS ACT, PASSED AS A RIDER TO A DISTRICT OF
COLUMBIA REVENUE BILL, CONGRESS WAS CAREFUL TO STATE THAT ITS EXEMPTION
OF CERTAIN RESALE PRICE MAINTENANCE CONTRACTS FROM THE PROHIBITIONS OF
THE ANTITRUST LAWS "SHALL NOT MAKE LAWFUL ANY CONTRACT OR AGREEMENT,
PROVIDING FOR THE ESTABLISHMENT OR MAINTENANCE OF MINIMUM RESALE PRICES
ON ANY COMMODITY HEREIN INVOLVED, BETWEEN MANUFACTURERS, OR BETWEEN
PRODUCERS, OR BETWEEN WHOLESALERS, OR BETWEEN BROKERS, OR BETWEEN
FACTORS, OR BETWEEN RETAILERS, OR BETWEEN PERSONS, FIRMS, OR
CORPORATIONS IN COMPETITION WITH EACH OTHER."  (FN13) 

FIFTEEN YEARS LATER, CONGRESS ATTACHED AN ALMOST IDENTICAL PROVISO TO
THE MCGUIRE ACT.  (FN14)  WE ARE TO TAKE THE WORDS OF THESE STATUTES
"IN THEIR NORMAL AND CUSTOMARY MEANING."  SCHWEGMANN BROS. V. CALVERT
CORP., 341 U.S. 384, 388. 

APPELLEE IS ADMITTEDLY A WHOLESALER WITH RESALE PRICE MAINTENANCE
CONTRACTS WITH 94 OTHER WHOLESALERS WHO ARE IN COMPETITION WITH IT.
THUS, EVEN IF WE READ THE PROVISO SO THAT THE WORDS "IN COMPETITION
WITH EACH OTHER" MODIFY "BETWEEN WHOLESALERS," THE AGREEMENTS IN
QUESTION WOULD SEEM CLEARLY TO BE OUTSIDE THE STATUTORY EXEMPTION. 
APPELLEE CONCEDES THAT THE PROVISO DOES NOT EXEMPT A CONTRACT BETWEEN
TWO COMPETING INDEPENDENT WHOLESALERS FIXING THE PRICE OF A BRAND
PRODUCT PRODUCED BY NEITHER OF THEM.  (FN15)  YET IT URGES THAT WHAT
WOULD BE ILLEGAL IF DONE BETWEEN COMPETING INDEPENDENT WHOLESALERS
BECOMES LEGAL IF DONE BETWEEN AN INDEPENDENT WHOLESALER AND A COMPETING
WHOLESALER WHO IS ALSO THE MANUFACTURER OF THE BRAND PRODUCT.  THIS IS
SO, APPELLEE MAINTAINS, BECAUSE IN CONTRACTING WITH INDEPENDENT
WHOLESALERS IT ACTED SOLELY AS A MANUFACTURER SELLING TO BUYERS RATHER
THAN AS A COMPETITOR OF THESE BUYERS.  BUT THE STATUTES PROVIDE NO
BASIS FOR SANCTIONING THE FICTION OF MCKESSON, THE COUNTRY'S LARGEST
DRUG WHOLESALER, ACTING ONLY AS A MANUFACTURER WHEN IT CONCLUDES "FAIR
TRADE" AGREEMENTS WITH COMPETING WHOLESALERS.  THESE WERE AGREEMENTS
"BETWEEN WHOLESALERS." 

ANY DOUBTS WHICH MIGHT OTHERWISE BE RAISED AS TO THE PROPRIETY OF
CONSIDERING A MANUFACTURER-WHOLESALER AS A "WHOLESALER" ARE DISPELLED
BY THE LAST PHRASE OF THE PROVISO IN QUESTION, WHICH CONTINUES THE
PROSCRIPTION AGAINST PRICE-FIXING AGREEMENTS "BETWEEN PERSONS, FIRMS,
OR CORPORATIONS IN COMPETITION WITH EACH OTHER."  CONGRESS THUS MADE AS
PLAIN AS WORDS CAN MAKE IT THAT, WITHOUT REGARD TO CATEGORIES OR
LABELS, THE CRUCIAL INQUIRY IS WHETHER THE CONTRACTING PARTIES COMPETE
WITH EACH OTHER.  IF THEY DO, THE MILLER-TYDINGS AND MCGUIRE ACTS DO
NOT PERMIT THEM TO FIX RESALE PRICES.  THE COURT STATED IN SCHWEGMANN
BROS. V. CALVERT CORP., 341 U.S. 384, 389, THAT THIS PROVISO "EXPRESSLY
CONTINUES THE PROHIBITIONS OF THE SHERMAN ACT AGAINST 'HORIZONTAL'
PRICE FIXING BY THOSE IN COMPETITION WITH EACH OTHER AT THE SAME
FUNCTIONAL LEVEL."  (FN16)  SINCE APPELLEE COMPETES "AT THE SAME
FUNCTIONAL LEVEL" WITH EACH OF THE 94 WHOLESALERS WITH WHOM IT HAS
PRICE-FIXING AGREEMENTS, THE PROVISO PREVENTS THESE AGREEMENTS FROM
FALLING WITHIN THE STATUTORY EXEMPTION. 

APPELLEE ARGUES THAT A BRIEF COLLOQUY ON THE SENATE FLOOR BETWEEN A
SUPPORTER OF THE MCGUIRE ACT AND AN INQUIRING SENATOR SHORTLY BEFORE
THE ACT WAS PASSED SHOULD DICTATE A MEANING CONTRARY TO THAT REVEALED
BY THE ACT'S PLAIN LANGUAGE.  BUT, AT BEST, THE STATEMENT WAS
INCONCLUSIVE.  (FN17)  AND THE SENATOR WHOSE STATEMENT IS RELIED ON WAS
NOT IN CHARGE OF THE BILL, NOR WAS HE A MEMBER OF ANY COMMITTEE THAT
HAD CONSIDERED IT.  MOREOVER, THE MCGUIRE ACT WAS NOT A SENATE BILL,
HAVING BEEN PASSED BY THE HOUSE OF REPRESENTATIVES PRIOR TO THIS SENATE
DISCUSSION.  THERE IS NOTHING IN THE PROCEEDINGS OF THE HOUSE TO
INDICATE THAT THE MEANING FOR WHICH APPELLEE CONTENDS SHOULD BE GIVEN
TO THE ACT.  SIMILARLY, EXCEPT TO SHOW CONGRESSIONAL CONCERN THAT THE
PROHIBITION AGAINST "HORIZONTAL" PRICE FIXING BE CONTINUED, THE SENATE
AND HOUSE DEBATES ON THE PROVISO IN THE MILLER-TYDINGS ACT ARE OF
LITTLE ASSISTANCE WITH RESPECT TO THE PROBLEM BEFORE US. 

THE COURT BELOW DID NOT RELY ON THE LEGISLATIVE HISTORY, FINDING IT
TO BE "UNEDIFYING AND UNILLUMINATING."  (FN18)  WE AGREE WITH THIS
APPRAISAL, BUT ARE NOT TROUBLED BY IT SINCE THE LANGUAGE OF THE PROVISO
IN QUESTION IS UNAMBIGUOUS.  (FN19)  IT EXCLUDES FROM THE EXEMPTION
FROM THE PER SE RULE OF ILLEGALITY RESALE PRICE MAINTENANCE CONTRACTS
BETWEEN FIRMS COMPETING ON THE SAME FUNCTIONAL LEVEL. 

BOTH THE GOVERNMENT AND APPELLEE PRESS UPON US ECONOMIC ARGUMENTS
WHICH COULD REASONABLY HAVE CAUSED CONGRESS TO SUPPORT THEIR RESPECTIVE
POSITIONS.  (FN20)  WE NEED NOT CONCERN OURSELVES WITH SUCH
SPECULATION.  CONGRESS HAS MARKED THE LIMITATIONS BEYOND WHICH PRICE
FIXING CANNOT GO.  WE ARE NOT ONLY BOUND BY THOSE LIMITATIONS BUT WE
ARE BOUND TO CONSTRUE THEM STRICTLY, SINCE RESALE PRICE MAINTENANCE IS
A PRIVILEGE RESTRICTIVE OF A FREE ECONOMY.  CF.  UNITED STATES V.
MASONITE CORP., 316 U.S. 265, 280. 

THE JUDGMENT OF THE DISTRICT COURT DISMISSING THE COMPLAINT MUST,
THEREFORE, BE REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  26 STAT. 209.    FN2  50 STAT. 693. 

FN3  66 STAT. 632. 

FN4  122 F. SUPP. 333. 

FN5  122 F. SUPP., AT 337-339.  THE DISTRICT JUDGE PROVIDED AN
ILLUSTRATION OF THE KIND OF CONDUCT WHICH MIGHT SATISFY HIS TEST: 

"IF, FOR EXAMPLE, IT COULD BE ESTABLISHED THAT A PRODUCER BECAME A
WHOLESALER, THOUGH NOT IN COMPETITION WITH AN INDEPENDENT WHOLESALER,
AND STIPULATED PRICES FOR HIS OWN AND THE INDEPENDENT WHOLESALER AS A
FIRST STEP TOWARD AND WITH INTENT TO GOUGE CONSUMERS, THAT MIGHT
SUFFICE PRIMA FACIE AS VIOLATION OF THE SHERMAN ACT OUTSIDE THE
PRIVILEGE OF THE FAIR TRADE STATUTES." 

FN6  R. 180. 

FN7  350 U.S. 922. 

FN8  26 STAT. 209. 

FN9  E.G., UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392, 397;
ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 458.  SEE ALSO
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 65. 

FN10  UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 221-224. 

FN11  310 U.S., AT 221-222. 

FN12  UNITED STATES V. BAUSCH & LOMB CO., 321 U.S. 707, 721. 

FN13  50 STAT. 693.  THIS PROVISO QUALIFIED THE PROVISO IMMEDIATELY
PRECEDING IT, WHICH AMENDED SEC. 1 OF THE SHERMAN ACT SO AS TO MAKE
LAWFUL RESALE PRICE MAINTENANCE CONTRACTS ENTERED INTO BY MANUFACTURERS
OF BRANDED OR TRADE-MARKED GOODS IF SUCH CONTRACTS ARE AUTHORIZED BY
STATE LAW AS TO INTRASTATE TRANSACTIONS AND IF THE COMMODITY AFFECTED
IS IN "FREE AND OPEN COMPETITION WITH COMMODITIES OF THE SAME GENERAL
CLASS PRODUCED OR DISTRIBUTED BY OTHERS  ...  ." 

FN14  66 STAT. 632.  THE MCGUIRE ACT AMENDED SEC. 5(A) OF THE FEDERAL
TRADE COMMISSION ACT BY ADDING, INTER ALIA, SEC. 5(A)(2).  THIS
SPECIFICALLY EXEMPTS FROM THE ANTITRUST LAWS PRICE FIXING UNDER "FAIR
TRADE" AGREEMENTS WHICH BIND NOT ONLY RETAILERS WHO ARE PARTIES TO THE
AGREEMENT BUT ALSO RETAILERS WHO REFUSE TO SIGN THE AGREEMENT.  AS IN
THE MILLER-TYDINGS ACT, THE STATUTORY EXEMPTION WAS QUALIFIED BY AN
IMPORTANT PROVISO.  THIS STATED: 

"(5)  NOTHING CONTAINED IN PARAGRAPH (2) OF THIS SUBSECTION SHALL
MAKE LAWFUL CONTRACTS OR AGREEMENTS PROVIDING FOR THE ESTABLISHMENT OR
MAINTENANCE OF MINIMUM OR STIPULATED RESALE PRICES ON ANY COMMODITY
REFERRED TO IN PARAGRAPH (2) OF THIS SUBSECTION, BETWEEN MANUFACTURERS,
OR BETWEEN PRODUCERS, OR BETWEEN WHOLESALERS, OR BETWEEN BROKERS, OR
BETWEEN FACTORS, OR BETWEEN RETAILERS, OR BETWEEN PERSONS, FIRMS, OR
CORPORATIONS IN COMPETITION WITH EACH OTHER." 

FN15  APPELLEE'S BRIEF, P. 6.  IN THE DISTRICT COURT AND IN ITS
MOTION TO AFFIRM FILED IN THIS COURT, HOWEVER, APPELLEE CLAIMED THAT
THE PROVISO APPLIES ONLY TO AGREEMENTS "BETWEEN MANUFACTURERS OF
COMPETING PRODUCTS, OR BETWEEN WHOLESALERS OF COMPETING PRODUCTS, OR
RETAILERS OF SUCH PRODUCTS, FIXING THE PRICES AT WHICH TWO OR MORE
COMPETITIVE PRODUCTS ARE TO BE SOLD."  MOTION TO AFFIRM, PP. 5-6. 

FN16  PREVIOUS PHRASES OF THE PROVISO APPEAR IN STATE "FAIR TRADE"
LAWS, UPON WHICH THE PROVISO SEEMS TO HAVE BEEN MODELED.  FTC REPORT ON
"RESALE PRICE MAINTENANCE," PP. 80-81 (1945).  THE LAST PHRASE,
HOWEVER, HAS APPARENTLY NEVER BEEN INCLUDED IN ANY STATE STATUTE. 
THUS, METICULOUS INCLUSION OF THIS PHRASE IN THE FEDERAL ACTS IS NOT
WITHOUT SIGNIFICANCE. 

FN17  98 CONG. REC. 8870.  SENATOR HUMPHREY, IN ANSWER TO AN INQUIRY
BY SENATOR SPARKMAN, SAID: 

"  ...  IF, FOR EXAMPLE, WHEN A PRODUCER, WHO SELLS TO DISTRIBUTORS,
WHOLESALERS, RETAILERS, AND CONSUMERS, MAKES A RESALE PRICE-MAINTENANCE
AGREEMENT RELATIVE TO A COMMODITY MADE BY HIM AND BEARING A TRADE-MARK
OR BRAND, WITH A DISTRIBUTOR, WHOLESALER, OR RETAILER WHO RESELLS SUCH
COMMODITY AT EITHER THE WHOLESALE, OR RETAIL LEVEL, THERE EXISTS A
VERTICAL RESALE PRICE-MAINTENANCE CONTRACT WHICH WOULD BE LAWFUL UNDER
THE BILL IF THE REQUIREMENTS OF PARAGRAPH (2) ARE MET. 

"ON THE OTHER HAND, IF ONE WHOLESALER ENTERS INTO A RESALE PRICE
MAINTENANCE AGREEMENT WITH ANOTHER WHOLESALER PRESCRIBING THE PRICE AT
WHICH THEY BOTH SELL A TRADE-MARKED OR BRANDED COMMODITY WHICH THEY
BOTH BUY FROM THE PRODUCER, THAT AGREEMENT WOULD BE HORIZONTAL AND
WOULD NOT BE MADE LAWFUL. 

"IN OTHER WORDS, WHOLESALERS GETTING TOGETHER ON A PRICE ARE ACTING
ILLEGALLY.  FOR A MANUFACTURER TO GET TOGETHER WITH OTHER MANUFACTURERS
TO MAINTAIN PRICES IS ILLEGAL, BUT FOR A MANUFACTURER TO SAY THAT A
CERTAIN PRODUCT WILL SELL AT A CERTAIN PRICE FROM THE MANUFACTURER DOWN
TO THE RETAILER IS LEGAL UNDER THE LIMITATIONS PRESCRIBED IN PARAGRAPH
(2) OF SECTION 5(A) OF THE FEDERAL TRADE COMMISSION ACT. 

"IN GENERAL, THE TEST OF WHETHER A RESALE PRICE-MAINTENANCE CONTRACT
IS VERTICAL IS IF THE CONTRACT IS BETWEEN A SELLER AND BUYERS WHO
RESELL THE ORIGINAL SELLER'S PRODUCT; WHEREAS, THE TEST OF WHETHER A
RESALE PRICE-MAINTENANCE CONTRACT IS HORIZONTAL AS IF IT IS BETWEEN
COMPETING SELLERS BETWEEN WHOM THE RELATION OF BUYER AND SELLER OR
RESELLER DOES NOT EXIST AS TO THE PRODUCT INVOLVED. 

"IT IS IMPORTANT TO KEEP THIS DISTINCTION IN MIND, BECAUSE MANY
PRODUCERS OF TRADE-MARKED ITEMS SELL THEM TO CONSUMERS, RETAILERS, AND
WHOLESALERS ALIKE. 

"UNDER THE BILL, SUCH FIRMS MAY MAKE RESALE PRICE-MAINTENANCE
CONTRACTS WITH BOTH WHOLESALERS AND RETAILERS BECAUSE SUCH CONTRACTS
ARE VERTICIAL, THAT IS, BETWEEN SELLERS AND BUYERS.  WHILE IN ONE SENSE
FIRMS IN THIS POSITION FUNCTION NOT ONLY AS PRODUCERS BUT ALSO AS
WHOLESALERS AND RETAILERS, THEY MAY STILL LAWFULLY MAKE CONTRACTS WITH
OTHER WHOLESALERS AND RETAILERS, WHEN IN MAKING SUCH CONTRACTS THEY ACT
AS PRODUCERS OF A TRADE-MARKED OR BRANDED COMMODITY, RATHER THAN AS
WHOLESALERS AND RETAILERS ENTERING INTO FORBIDDEN HORIZONTAL RESALE
PRICE-MAINTENANCE CONTRACTS WITH OTHER WHOLESALERS OR OTHER
RETAILERS." 

IT SHOULD BE NOTED THAT THESE REMARKS APPEAR TO BE CONFINED TO THE
"BETWEEN WHOLESALERS" AND "BETWEEN RETAILERS" PHRASES AND DO NOT DEAL
WITH THE "CORPORATIONS IN COMPETITION" PHRASE.  AND, EVEN AS TO THE
FORMER, IT IS NOT AT ALL CLEAR THAT SENATOR HUMPHREY WAS DISCUSSING THE
SITUATION WHERE ACTUAL COMPETITION EXISTS BETWEEN THE MANUFACTURER
WHOLESALER AND INDEPENDENT WHOLESALERS.  AS INDICATED IN NOTE 15,
SUPRA, UNTIL WE NOTED PROBABLE JURISDICTION, APPELLEE FLATLY DISAGREED
WITH AN IMPORTANT PART OF THIS STATEMENT. 

FN18  122 F. SUPP., AT 336. 

FN19  CF. GREENWOOD V. UNITED STATES, 350 U.S. 366, 374. 

FN20  THE GOVERNMENT MAINTAINS THAT A RESALE PRICE MAINTENANCE
AGREEMENT BETWEEN A MANUFACTURER-WHOLESALER AND COMPETING INDEPENDENT
WHOLESALERS, IN ADDITION TO ELIMINATING COMPETITION BETWEEN THE
PARTIES, ENABLES THE FORMER, BECAUSE OF ITS LEVERAGE AS A MANUFACTURER
OF BRANDED PRODUCTS, TO DICTATE THE LATTER'S PRICES ON THESE PRODUCTS. 
SUCH AN AGREEMENT, THE GOVERNMENT CLAIMS, ALSO LEAVES THE MANUFACTURER
WHOLESALER FREE TO UNDERSELL THE INDEPENDENT WHOLESALERS WHEN DEALING
WITH LARGE RETAILERS DIRECTLY THROUGH ITS MANUFACTURING DIVISION.  AND
IF THE MANUFACTURER'S OWN WHOLESALE OUTLETS ARE INEFFICIENT, RESALE
PRICE MAINTENANCE PERMITS IT TO INSULATE THOSE OUTLETS FROM THE INROADS
OF MORE EFFICIENT OPERATORS BY SETTING ITS "FAIR TRADE" PRICE HIGHER
THAN OTHERWISE.  ACCORDING TO THE GOVERNMENT, NONE OF THESE EFFECTS IS
PRESENT WHERE PRICE FIXING EXISTS BETWEEN INDEPENDENT WHOLESALERS AND A
NONINTEGRATED MANUFACTURER. 

APPELLEE CONTENDS THAT THE ECONOMIC EFFECTS OF "FAIR TRADING" ARE THE
SAME WHETHER OR NOT THE MANUFACTURER HAS ITS OWN WHOLESALE OUTLETS,
SINCE THE PROTECTION WHICH RESALE PRICE MAINTENANCE PROVIDES TO THE
MANUFACTURER'S GOOD WILL "NECESSARILY INVOLVES ELIMINATION OF PRICE
COMPETITION AMONG DIFFERENT OUTLETS FOR THE MANUFACTURER'S OWN BRANDED
MERCHANDISE."  IN BOTH SITUATIONS, APPELLEE CLAIMS, THE MANUFACTURER
MAKES "AT THE SOURCE, AS A MANUFACTURER,  ...  DOWNSTREAM PRICE FIXING
ARRANGEMENTS WITH ITS OUTLETS." 

THE COURT BELOW INDICATED AN AWARENESS OF THE ECONOMIC ARGUMENTS ON
BOTH SIDES BUT REFUSED TO FOLLOW "EITHER OF ALTERNATE HORNS  ...  IN
THE DILEMMA OF FAIR TRADE AGREEMENTS WITH INDEPENDENT WHOLESALERS BY A
MANUFACTURER WHO IS ALSO A WHOLESALER  ...  ."  122 F. SUPP., AT 337. 
INSTEAD, THE DISTRICT JUDGE ADVOCATED A CASE-BY-CASE EXAMINATION OF THE
ECONOMIC SETTING IN WHICH THE QUESTION ARISES, WITH THE BURDEN ON THE
GOVERNMENT TO SHOW "SOME ADDITIONAL RESTRAINT DESTRUCTIVE OF
COMPETITION."  122 F. SUPP., AT 339. 

FOR DISCUSSION OF THESE ECONOMIC CONTENTIONS AND THE CONCLUSIONS
WHICH THEY ARE DESIGNED TO SUPPORT, SEE WESTON, RESALE PRICE
MAINTENANCE AND MARKET INTEGRATION:  FAIR TRADE OR FOUL PLAY?  22 GEO.
WASH. L. REV. 658; NOTE, 64 YALE L.J. 426; 54 COL. L. REV. 282. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

LACK OF SYMPATHY WITH AN ACT OF CONGRESS DOES NOT JUSTIFY GIVING TO
IT A CONSTRUCTION THAT CANNOT BE RATIONALIZED IN TERMS OF ANY POLICY
REASONABLY ATTRIBUTABLE TO CONGRESS.  RATHER OUR DUTY, AS ALWAYS, IS TO
SEEK OUT THE POLICY UNDERLYING THE ACT AND, IF POSSIBLE, GIVE EFFECT TO
IT.  IN THIS INSTANCE, I THINK THE COURT HAS DEPARTED FROM THAT RULE BY
GIVING THE MILLER-TYDINGS AND MCGUIRE ACTS AN ARTIFICIAL CONSTRUCTION
WHICH PRODUCES RESULTS THAT COULD HARDLY HAVE BEEN INTENDED BY
CONGRESS. 

THE PURPOSE OF THE STATE FAIR-TRADE LAWS IS TO ALLOW THE MANUFACTURER
OF A BRAND-NAMED PRODUCT TO PROTECT THE GOODWILL HIS NAME ENJOYS BY
CONTROLLING THE PRICES AT WHICH HIS BRANDED PRODUCTS ARE RESOLD.  OLD
DEARBORN DISTRIBUTING CO. V. SEAGRAM-DISTILLERS CORP., 299 U.S. 183,
193-194.  THE NECESSARY RESULT - INDEED, THE VERY OBJECT - IS TO PERMIT
THE ELIMINATION OF PRICE COMPETITION IN THE BRANDED PRODUCT AMONG THOSE
WHO SELL IT.  CONGRESS HAS SANCTIONED THOSE LAWS IN THE MILLER-TYDINGS
AND MCGUIRE ACTS, CONSIDERING THEM NOT TO BE OFFENSIVE TO FEDERAL
ANTITRUST POLICY.  (FN1)  SUFFICIENT PROTECTION TO THE PUBLIC INTEREST
WAS DEEMED TO BE AFFORDED BY THE COMPETITION AMONG DIFFERENT BRANDS, A
SAFEGUARD MADE EXPRESS BY THE PROVISION OF THE MILLER-TYDINGS AND
MCGUIRE ACTS DENYING FAIR-TRADE CONTRACTS EXEMPTION FROM THE ANTITRUST
LAWS UNLESS THE FAIR-TRADED PRODUCT IS "IN FREE AND OPEN COMPETITION
WITH COMMODITIES OF THE SAME GENERAL CLASS."  IN SHORT, THE VERY
PURPOSE OF THE ACTS IS TO PERMIT A MANUFACTURER TO SET THE RESALE PRICE
FOR HIS OWN PRODUCTS WHILE PRESERVING COMPETITION BETWEEN BRANDS - THAT
IS, BETWEEN THE FAIR-TRADED ITEM AND SIMILAR ITEMS PRODUCED BY OTHER
MANUFACTURERS. 

IF WE ACCEPT THE LEGISLATIVE JUDGMENT IMPLICIT IN THE ACTS THAT
RESALE PRICE MAINTENANCE IS NECESSARY AND DESIRABLE TO PROTECT THE
GOODWILL ATTACHED TO A BRAND NAME, THERE IS NO MEANINGFUL DISTINCTION
BETWEEN THE FAIR-TRADE CONTRACTS OF INTEGRATED AND NON-INTEGRATED
MANUFACTURERS.  CERTAINLY THE INTEGRATED MANUFACTURER HAS AS STRONG A
CLAIM TO PROTECTION OF HIS GOODWILL AS A NON-INTEGRATED MANUFACTURER,
AND THE ECONOMIC EFFECT OF THE CONTRACTS IS THE SAME.  IN BOTH CASES
PRICE COMPETITION IN THE RESALE OF THE BRANDED PRODUCT IS ELIMINATED,
AND IN NEITHER CASE DOES THE PRICE FIXING EXTEND BEYOND THE
MANUFACTURER'S OWN PRODUCT.  WHILE THE GOVERNMENT CONCEDES THE RIGHT OF
A NON-INTEGRATED MANUFACTURER TO ELIMINATE PRICE COMPETITION IN HIS
PRODUCTS BETWEEN WHOLESALERS, IT FINDS A VICE NOT CONTEMPLATED BY THE
ACTS WHEN ONE OF THE "WHOLESALERS" IS ALSO THE MANUFACTURER, FOR THEN
THE CONTRACTS ELIMINATE COMPETITION BETWEEN THE VERY PARTIES TO THE
CONTRACTS.  BUT, IN EITHER CASE, ALL PRICE COMPETITION IS ELIMINATED,
AND I AM UNABLE TO SEE WHAT DIFFERENCE IT MAKES BETWEEN WHOM THE
ELIMINATED COMPETITION WOULD HAVE EXISTED HAD IT NOT BEEN ELIMINATED. 
THE OTHER BASES OF DISTINCTION SUGGESTED BY THE GOVERNMENT ARE EQUALLY
TENUOUS AND REFLECT A SUBTLETY OF ANALYSIS FOR WHICH THERE IS NO
SUPPORT IN EITHER THE ACTS OR THEIR HISTORY. 

SO UNSATISFACTORY, INDEED, ARE THE GOVERNMENT'S ATTEMPTS TO
RATIONALIZE THE RESULT CONTENDED FOR, THAT THE COURT CHOOSES NOT TO
RELY UPON THEM, FINDING THE LANGUAGE OF THE PROVISOS SO CLEAR AS TO
MAKE IT UNNECESSARY EVEN TO HYPOTHESIZE A CONSISTENT RATIONALE
ATTRIBUTABLE TO CONGRESS THAT MIGHT JUSTIFY THE DISCRIMINATION AGAINST
INTEGRATED PRODUCERS.  INDEED, NOT EVEN THE FACT THAT THE ONLY
LEGISLATIVE HISTORY DIRECTLY IN POINT IS SQUARELY OPPOSED TO THE
COURT'S READING OF THE STATUTE (SEE NOTE 17 OF THE COURT'S OPINION, PP.
313-315) PROMPTS ENOUGH DOUBT IN THE COURT TO REQUIRE AN INQUIRY INTO
THE PURPOSE OF THE ACTS.  THE COURT'S REASONING IS THIS:  THE PROVISOS
EXCEPT FROM THE ACTS CONTRACTS "BETWEEN WHOLESALERS" OR "BETWEEN
PERSONS, FIRMS, OR CORPORATIONS IN COMPETITION WITH EACH OTHER";
MCKESSON IS A "WHOLESALER" AS WELL AS A MANUFACTURER AND IS ALSO "IN
COMPETITION WITH" INDEPENDENT WHOLESALERS; ITS CONTRACTS WITH
INDEPENDENT WHOLESALERS ARE THEREFORE FORBIDDEN CONTRACTS "BETWEEN
WHOLESALERS" AND BETWEEN "CORPORATIONS IN COMPETITION WITH EACH
OTHER."  THIS VERBALISTIC ARGUMENT CAN BE ANSWERED BY THE EQUALLY
VERBALISTIC ONE THAT THE FAIR-TRADE CONTRACTS, BEING MADE IN CONNECTION
WITH THE SALE OF ITS OWN BRANDED PRODUCTS, WERE MADE BY MCKESSON IN ITS
CAPACITY AS A "MANUFACTURER" RATHER THAN AS A COMPETING "WHOLESALER." 
NEITHER ARGUMENT BEING MORE CONCLUSIVE THAN THE OTHER, THE ANSWER TO
THE PROBLEM CAN BE FOUND ONLY BY LOOKING TO THE PURPOSE OF THE PROVISOS
AND ITS RELATION TO THE BASIC POLICY OF PERMITTING RESALE PRICE
MAINTENANCE OF BRANDED GOODS. 

AS NOTED ABOVE, THE ACTS NECESSARILY CONTEMPLATE THE ELIMINATION OF
PRICE COMPETITION IN THE RESALE OF A PARTICULAR BRANDED PRODUCT AND
RELY FOR PROTECTION OF THE PUBLIC INTEREST UPON COMPETITION BETWEEN
BRANDS.  VIEWED IN THE LIGHT OF THIS PURPOSE, THE PROVISOS BECOME
READILY UNDERSTANDABLE.  THE VICE OF PRICE-FIXING AGREEMENTS BETWEEN
THOSE IN COMPETITION WITH EACH OTHER, WHETHER AT THE MANUFACTURING,
WHOLESALING, OR RETAILING LEVEL, IS THAT THEY CAN BE UTILIZED TO
ELIMINATE COMPETITION BETWEEN BRANDS.  THUS MANUFACTURERS MIGHT AGREE
TO FIX THE RESALE PRICES OF THEIR COMPETING BRANDS IN RELATION TO EACH
OTHER; THE SAME RESULT, ON AN EVEN BROADER SCALE, COULD BE ACHIEVED BY
AGREEMENTS BETWEEN WHOLESALERS OR RETAILERS.  FURTHER, AGREEMENTS
INITIATED BY ANYONE OTHER THAN THE OWNER OF THE BRAND NAME ARE
UNNECESSARY TO THE PROTECTION OF GOODWILL, THE VERY JUSTIFICATION FOR
PERMITTING FAIR-TRADE CONTRACTS.  THUS AN AGREEMENT BETWEEN WHOLESALERS
TO FIX THE PRICE OF A PRODUCT BEARING THE TRADE NAME OF NEITHER WOULD
SERVE NO PURPOSE OTHER THAN THE ELIMINATION OF COMPETITION. 
INTERPRETING THE PROVISOS IN THE LIGHT OF THESE CONSIDERATIONS, I
CONCLUDE THAT AN INTEGRATED MANUFACTURER SELLING ITS PRODUCTS UNDER
FAIR-TRADE CONTRACTS TO INDEPENDENT WHOLESALERS SHOULD BE DEEMED TO BE
ACTING AS A "MANUFACTURER" RATHER THAN AS A "WHOLESALER."  THIS
INTERPRETATION OF THE PROVISOS FITS WITH THEIR TERMS AND PRODUCES,
RATHER THAN AN ARBITRARY DISCRIMINATION HARDLY INTENDED BY CONGRESS, A
RESULT FULLY IN HARMONY WITH THE POLICY OF THE ACTS TO PERMIT
MANUFACTURERS TO MAINTAIN THE RESALE PRICES OF THEIR BRANDED PRODUCTS
WHILE PRESERVING COMPETITION BETWEEN BRANDS.  (FN2) 

FOR THESE REASONS, THEREFORE, I WOULD HOLD MCKESSON'S CONTRACTS TO BE
WITHIN THE MILLER-TYDINGS AND MCGUIRE ACTS AND WOULD AFFIRM THE
JUDGMENT BELOW. 

FN1  THE COURT REFERS TO THE MILLER-TYDINGS ACT AS HAVING BEEN
"PASSED AS A RIDER TO A DISTRICT OF COLUMBIA REVENUE BILL."  IT IS
PERTINENT TO NOTE THAT, IN PASSING THE LATER MCGUIRE ACT, CONGRESS NOT
ONLY REAFFIRMED THE POLICY OF THE MILLER-TYDINGS ACT BUT ALSO
ELIMINATED THE RESTRICTIVE EFFECT OF THIS COURT'S DECISION IN
SCHWEGMANN BROS. V. CALVERT DISTILLERS CORP., 341 U.S. 384, AS REGARDS
"NON-SIGNERS" OF FAIR-TRADE CONTRACTS. 

FN2  THE FEDERAL TRADE COMMISSION, THE ADMINISTRATIVE AGENCY
SPECIALLY CHARGED WITH ADMINISTERING THE MCGUIRE ACT, HAS REACHED LIKE
CONCLUSIONS.  SEE EASTMAN KODAK CO., 3 CCH TRADE REG. REP. (10TH ED.),
PAR. 25,291. 
..END :










DENVER & RIO GRANDE WESTERN RAILROAD CO. V. UNION PACIFIC RAILROAD CO.
351 U.S. 321 


NO. 117.  ARGUED APRIL 23-24, 1956.  - DECIDED JUNE 11, 1956.  - 131 F.
SUPP. 372, REVERSED.  - 132 F. SUPP. 72, AFFIRMED IN PART AND REVERSED
IN PART. 


1.  AFTER HEARINGS UPON COMPLAINT OF THE RIO GRANDE RAILROAD, THE
INTERSTATE COMMERCE COMMISSION ORDERED THE UNION PACIFIC TO ESTABLISH
THROUGH ROUTES WITH THE RIO GRANDE FOR CERTAIN COMMODITIES SUCH AS
FRUITS, PERISHABLE FOODS, AND LIVESTOCK IN A LIMITED GEOGRAPHICAL AREA,
AND TO ESTABLISH JOINT RATES THE SAME AS APPLIED ON ITS OWN AND OTHER
CONNECTING LINES.  THE RIO GRANDE, CONSIDERING ITSELF AGGRIEVED BOTH
BECAUSE OF THE GEOGRAPHICAL LIMITATIONS OF THE ORDER AND BECAUSE JOINT
RATES WERE NOT ESTABLISHED FOR ALL COMMODITIES, CHALLENGED THE ORDER IN
THE FEDERAL DISTRICT COURT IN COLORADO.  THE COURT SET ASIDE THE ORDER
ON THE GROUND THAT THERE WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE
COMMISSION'S FINDING THAT THROUGH ROUTES WERE NOT IN EXISTENCE.  HELD:
THE COMMISSION'S CONCLUSION THAT THE THROUGH ROUTES CLAIMED WERE NOT IN
EXISTENCE WAS SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IT WAS ERROR FOR
THE COLORADO DISTRICT COURT TO SET ASIDE THE COMMISSION'S FINDING AND
TO REMAND THE CASE TO THE COMMISSION.  PP. 323-330. 

2.  THE UNION PACIFIC, CONSIDERING ITSELF AGGRIEVED BECAUSE THE
COMMISSION'S ORDER REQUIRED ESTABLISHMENT OF SOME THROUGH ROUTES AND
JOINT RATES, CHALLENGED THE ORDER IN THE FEDERAL DISTRICT COURT IN
NEBRASKA.  THAT COURT SUSTAINED THE ORDER OF THE COMMISSION WITH
REFERENCE TO SHIPMENTS WHICH REQUIRED CERTAIN TRANSIT SERVICES ON THE
RIO GRANDE, BUT REFUSED TO SUSTAIN THE ORDER WITH REFERENCE TO
SHIPMENTS NOT REQUIRING SUCH TRANSIT SERVICES.  HELD:  THE JUDGMENT OF
THE NEBRASKA DISTRICT COURT IS AFFIRMED INSOFAR AS IT AFFIRMED THE
ORDER OF THE COMMISSION, AND IS REVERSED INSOFAR AS IT REFUSED TO
ENFORCE THE COMMISSION'S ORDER.  PP. 330-335. 

(A)  THE COMMISSION CANNOT BE DEEMED TO HAVE ACTED IN EXCESS OF ITS
AUTHORITY IN CONCLUDING, ON THE EVIDENCE BEFORE IT, THAT THROUGH ROUTES
AND JOINT RATES ON THE SPECIFIED COMMODITIES WERE NEEDED TO PROVIDE
ADEQUATE AND MORE ECONOMIC TRANSPORTATION AND WERE NECESSARY IN THE
PUBLIC INTEREST.  PP. 330-333. 

(B)  THE NEBRASKA DISTRICT COURT ERRED IN CUTTING DOWN THE SCOPE OF
THE COMMISSION'S ORDER INSOFAR AS IT ESTABLISHED THROUGH ROUTES AND
JOINT RATES ON SHIPMENTS THAT DID NOT REQUIRE CERTAIN TRANSIT SERVICES
ON THE RIO GRANDE.  PP. 333-334. 

(C)  A SHIPPER'S PRIVILEGE TO HAVE HIS GOODS RECONSIGNED AT JOINT
RATES SHOULD BE CONSIDERED ON THE SAME BASIS AS TRANSIT SERVICES IN
DETERMINING THE ADEQUACY AND ECONOMY OF EXISTING TRANSPORTATION.  P.
334. 

(D)  THE COMMISSION'S ORDER WAS JUSTIFIED UNDER SECS. 15(1), 15(3) AND
15(4) OF THE INTERSTATE COMMERCE ACT, AND THE NEBRASKA DISTRICT COURT
SHOULD HAVE SUSTAINED THE ORDER IN FULL.  PP. 334-335. 

DENVER & RIO GRANDE WESTERN RAILROAD CO. V. UNION PACIFIC RAILROAD CO.
ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEBRASKA.* 

*TOGETHER WITH NO. 118, UNION PACIFIC RAILROAD CO. ET AL. V. UNITED
STATES ET AL., AND NO. 119, UNITED STATES ET AL. V. UNION PACIFIC
RAILROAD CO. ET AL., ON APPEALS FROM THE SAME COURT; AND NO. 332,
WASHINGTON PUBLIC SERVICE COMMISSION ET AL. V. DENVER & R.G.W.R.  CO.,
NO. 333, UNION PACIFIC RAILROAD CO. ET AL. V. DENVER & R.G.W.R. CO.,
AND NO. 334, UNITED STATES ET AL. V. DENVER & R.G.W.R. CO., ON APPEALS
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THESE CASES ALL INVOLVE THE VALIDITY OF A SINGLE ORDER OF THE
INTERSTATE COMMERCE COMMISSION ESTABLISHING THROUGH RAILROAD ROUTES AND
PRESCRIBING JOINT THROUGH RATES FOR CARRIAGE OF CERTAIN GOODS OVER THE
ROUTES.  THE COMMISSION'S ORDER WAS MADE AFTER LENGTHY HEARINGS UPON
COMPLAINT OF THE DENVER & RIO GRANDE WESTERN RAILROAD COMPANY.  THE RIO
GRANDE'S MAIN LINE RUNS FROM OGDEN, SALT LAKE CITY, AND PROVO, UTAH,
ACROSS MUCH OF COLORADO TO DENVER, PUEBLO, AND TRINIDAD.  THE CHIEF
CONTROVERSY INVOLVED IN THIS CASE IS BETWEEN THE RIO GRANDE AND THE
UNION PACIFIC RAILROAD COMPANY.  THE UNION PACIFIC LINES WHICH ARE
RELEVANT HERE RUN FROM POINTS IN WASHINGTON AND OREGON THROUGH IDAHO,
UTAH, WYOMING, COLORADO, KANSAS, AND NEBRASKA, GOING AS FAR EAST AS
OMAHA AND KANSAS CITY.  THE UNION PACIFIC AND RIO GRANDE CONNECT AT
OGDEN, SALT LAKE CITY, AND PROVO, UTAH, AND AT DENVER, COLORADO.  THE
CONNECTION AT OGDEN IS KNOWN AS THE OGDEN GATEWAY, MEANING THE GATEWAY
BETWEEN THE NORTHWESTERN STATES SERVED BY THE UNION PACIFIC AND STATES
TO THE SOUTH AND EAST SERVED BY THE RIO GRANDE.  THE UNION PACIFIC HAS
USED ITS STRATEGIC POSITION IN THE NORTHWEST TERRITORY IN SUCH A WAY
THAT PRACTICALLY ALL TRAFFIC BETWEEN THE NORTHWEST, DENVER AND POINTS
EAST AND SOUTH OF DENVER GOES OVER ITS LINES.  FOR THIS REASON THE
NORTHWEST IS OFTEN REFERRED TO AS "CLOSED DOOR" TERRITORY.  THIS
SITUATION CAUSED THE RIO GRANDE TO FILE ITS COMPLAINT WITH THE
COMMISSION.  IT CHARGED THAT THE UNION PACIFIC HAD AGREEMENTS WITH
OTHER CONNECTING RAILROADS NAMED DEFENDANTS UNDER WHICH GOODS COULD BE
CARRIED TO AND FROM THE NORTHWEST AT JOINT THROUGH RATES, BUT THAT THE
ONLY WAY THE RIO GRANDE COULD CARRY GOODS TO AND FROM THIS AREA WAS BY
EXACTING HIGHER "COMBINATION RATES," WHICH ARE THE SUM OF LOCAL RATES. 
THESE HIGH RATES PRACTICALLY BAR THE RIO GRANDE AS A CONNECTING CARRIER
FOR THROUGH SHIPMENTS TO AND FROM THE NORTHWEST.  THE RIO GRANDE ASKED
THE COMMISSION TO ORDER THE UNION PACIFIC TO ESTABLISH AND MAINTAIN FOR
THE FUTURE "JUST, REASONABLE AND NON-DISCRIMINATORY COMPETITIVE JOINT
THROUGH RATES" WITH THE RIO GRANDE.  IT CHARGED THAT THE UNION
PACIFIC'S FAILURE TO ESTABLISH AND MAINTAIN SUCH RATES VIOLATED SECS.
1(4), 3, 15(1), AND 15(3) OF THE INTERSTATE COMMERCE ACT.  (FN1)
JOINT RATES OR PRACTICES THAT ARE "UNJUST OR UNREASONABLE OR UNJUSTLY
DISCRIMINATORY OR UNDULY PREFERENTIAL OR PREJUDICIAL" AND TO PRESCRIBE
RATES AND PRACTICES THAT ARE "JUST, FAIR, AND REASONABLE."  SECTION
15(3) EMPOWERS THE COMMISSION TO ESTABLISH THROUGH ROUTES AND JOINT
RATES WHENEVER DEEMED BY THE COMMISSION "TO BE NECESSARY OR DESIRABLE
IN THE PUBLIC INTEREST."  SECTION 15(4), WHICH IS VERY IMPORTANT IN
THIS CONTROVERSY, PLACES RESTRICTIVE CONDITIONS UPON THE COMMISSION'S
POWER TO ESTABLISH THROUGH ROUTES UNDER SEC. 15(3) WHEN THE
ESTABLISHMENT OF A THROUGH ROUTE WOULD REQUIRE A RAILROAD "WITHOUT ITS
CONSENT, TO EMBRACE IN SUCH ROUTE SUBSTANTIALLY LESS THAN THE ENTIRE
LENGTH OF ITS RAILROAD AND OF ANY INTERMEDIATE RAILROAD OPERATED IN
CONJUNCTION AND UNDER A COMMON MANAGEMENT OR CONTROL THEREWITH, WHICH
LIES BETWEEN THE TERMINI OF SUCH PROPOSED THROUGH ROUTE  ...  ."  (FN2)
THIS PROVISION IS GENERALLY REFERRED TO AS A PROHIBITION AGAINST MAKING
A RAILROAD "SHORT-HAUL" ITSELF.  AMONG OTHER FINDINGS THE COMMISSION
MUST MAKE UNDER SEC. 15(4) BEFORE ESTABLISHING A THROUGH ROUTE WHICH
REQUIRES A RAILROAD TO SHORT-HAUL ITSELF IS THAT THE NEW ROUTE "IS
NEEDED IN ORDER TO PROVIDE ADEQUATE, AND MORE EFFICIENT OR MORE
ECONOMIC, TRANSPORTATION  ...  ." 

THE RIO GRANDE'S PETITION BEFORE THE COMMISSION ALLEGED THAT THROUGH
ROUTES WITH THE UNION PACIFIC ALREADY EXISTED THROUGH THE OGDEN
GATEWAY.  IT CONTENDED THAT THEY HAD BEEN CREATED AND USED BY THE UNION
PACIFIC.  ON THIS BASIS RIO GRANDE CLAIMED THAT THE RESTRICTIVE
CONDITIONS OF SEC. 15(4) DID NOT APPLY AND THAT THE COMMISSION NEED NOT
CONCERN ITSELF WITH THOSE CONDITIONS BUT SHOULD PROCEED TO ESTABLISH
REASONABLE JOINT RATES UNDER SEC. 15(3).  AFTER HEARING MUCH EVIDENCE
THE COMMISSION REJECTED THIS CONTENTION AND FOUND THAT THE THROUGH
ROUTES CLAIMED BY RIO GRANDE DID NOT EXIST.  (FN3)  THE COMMISSION WENT
ON TO FIND, HOWEVER, THAT THROUGH ROUTES SHOULD BE ESTABLISHED WITH
REFERENCE TO CERTAIN COMMODITIES SUCH AS FRUITS, PERISHABLE FOODS, AND
LIVESTOCK IN A LIMITED GEOGRAPHICAL AREA.  THE COMMISSION FOUND IN
ACCORDANCE WITH SEC. 15(4) THAT THESE NEW ROUTES WERE NEEDED "TO
PROVIDE ADEQUATE AND MORE ECONOMIC TRANSPORTATION  ...  ."  IT ALSO
FOUND AS REQUIRED BY SEC. 15(3) THAT THROUGH ROUTES AND JOINT RATES FOR
THE SPECIFIED COMMODITIES WERE "NECESSARY AND DESIRABLE IN THE PUBLIC
INTEREST."  287 I.C.C. 611, 659. 

ON THE BASIS OF ITS FINDINGS THE COMMISSION ORDERED THE UNION PACIFIC
TO ESTABLISH THROUGH ROUTES FOR THE SPECIFIED COMMODITIES AND TO
ESTABLISH JOINT RATES THE SAME AS APPLIED ON ITS OWN AND OTHER
CONNECTING LINES.  THE UNION PACIFIC CONSIDERED ITSELF AGGRIEVED
BECAUSE THE ORDER REQUIRED ESTABLISHMENT OF SOME THROUGH ROUTES AND
JOINT RATES.  THE RIO GRANDE CONSIDERED ITSELF AGGRIEVED BOTH BECAUSE
OF THE GEOGRAPHICAL LIMITATIONS OF THE COMMISSION'S ORDER AND BECAUSE
JOINT RATES WERE NOT ESTABLISHED FOR ALL COMMODITIES.  THE UNION
PACIFIC CHALLENGED THE ICC ORDER IN  A THREE-JUDGE UNITED STATES
DISTRICT COURT IN NEBRASKA AND THE RIO GRANDE CHALLENGED IT IN A THREE
JUDGE UNITED STATES DISTRICT COURT IN COLORADO.  SEE 28 U.S.C.  SECS.
1336, 2284, 2321-2325.  THE COLORADO COURT UPSET THE ORDER ON A SINGLE
GROUND.  IT HELD THAT THERE WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE
FINDING THAT THROUGH ROUTES WERE NOT IN EXISTENCE.  HAD THE COMMISSION
FOUND THERE WERE ESTABLISHED THROUGH ROUTES, THE COLORADO COURT
REASONED, MUCH BROADER RELIEF FOR THE RIO GRANDE MIGHT HAVE BEEN
ORDERED, SINCE THE RESTRICTIONS OF SEC. 15(4) WOULD NOT HAVE BEEN
APPLICABLE.  CONSEQUENTLY THE COLORADO COURT REMANDED THE CASE TO THE
COMMISSION FOR FURTHER CONSIDERATION.  131 F. SUPP. 372.  THE NEBRASKA
COURT ACCEPTED THE COMMISSION'S FINDING THAT NO THROUGH ROUTES WERE IN
EXISTENCE.  IT THEN HELD THAT THERE WAS EVIDENCE BEFORE THE COMMISSION
SUFFICIENT TO SUPPORT THE FINDING UNDER SEC. 15(4) THAT THROUGH ROUTES
WERE NEEDED "IN ORDER TO PROVIDE ADEQUATE AND MORE ECONOMIC
TRANSPORTATION" FOR SPECIFIED COMMODITIES SHIPPED FROM THE NORTHWEST TO
INITIAL DESTINATION POINTS ON THE RIO GRANDE FOR "IN-TRANSIT PRIVILEGES
INCIDENT TO RESHIPMENT TO POINTS EAST OF DENVER  ... ."  132 F. SUPP.
72, 82.  THE NEBRASKA COURT DECLINED, HOWEVER, TO SUSTAIN THE
COMMISSION'S ACTION WITH REFERENCE TO SHIPMENTS NOT REQUIRING SUCH
TRANSIT SERVICES.  BOTH DISTRICT COURT DECREES ARE NOW BEFORE US ON
DIRECT APPEAL UNDER 28 U.S.C. SECS. 1253 AND 2101(B).  THEY WERE
CONSOLIDATED FOR ORAL ARGUMENT AND WE TREAT THEM TOGETHER HERE.  IT IS
CONVENIENT TO TAKE UP FIRST THE COLORADO COURT'S HOLDING. 

IN CONSIDERING THE QUESTION OF THROUGH ROUTES UNDER SEC. 15(4) WE
BEGIN WITH OUR RECENT HOLDINGS AND OPINIONS IN THOMPSON V. UNITED
STATES, 343 U.S. 549; UNITED STATES V. GREAT NORTHERN R. CO., 343 U.S.
562.  WE THERE EMPHASIZED THE PURPOSE OF SEC. 15(4) TO BAR THE
COMMISSION FROM COMPELLING RAILROADS TO ESTABLISH THROUGH ROUTES
RESULTING IN TRUNKLINE "SHORT-HAULS" WITHOUT FAITHFUL OBSERVANCE OF
RESTRICTIVE CONDITIONS IMPOSED BY THAT SECTION.  AT THE SAME TIME WE
RECOGNIZED THAT COMMISSION ACTION IS NOT NECESSARY TO THE CREATION OF
THROUGH ROUTES.  WE POINTED OUT THAT A THROUGH ROUTE IS ORDINARILY A
VOLUNTARY ARRANGEMENT, EXPRESS OR IMPLIED, BETWEEN CONNECTING CARRIERS,
AND THAT THE EXISTENCE OF SUCH AN ARRANGEMENT DEPENDS ON THE
CIRCUMSTANCES OF PARTICULAR CASES.  WE SAID IN THOMPSON V. UNITED
STATES, SUPRA, AT 557, THAT "IN SHORT, THE TEST OF THE EXISTENCE OF A
'THROUGH ROUTE' IS WHETHER THE PARTICIPATING CARRIERS HOLD THEMSELVES
OUT AS OFFERING THROUGH TRANSPORTATION SERVICE."  FINDINGS OF THROUGH
ROUTES CAN THEREFORE BE MADE ON THE BASIS OF EXPRESS AGREEMENTS BETWEEN
CARRIERS OR ON THE BASIS OF INFERENCES DRAWN FROM CONTINUOUS PRACTICES
SUFFICIENT TO SHOW THAT THROUGH ROUTES EXIST EVEN THOUGH NOT PROVIDED
FOR IN FORMAL CONTRACTS OR TARIFFS.  THE QUESTION IN EACH CASE IS ONE
OF FACT.  CF. THROUGH ROUTES AND THROUGH RATES, 12 I.C.C. 163, 166
167.  THE COLORADO COURT VIEWED THE EVIDENCE HERE AS SHOWING BEYOND
DISPUTE THE EXISTENCE OF THROUGH ROUTES BOTH BY FORMAL TARIFFS AND BY
LONG RAILROAD PRACTICES.  WHETHER THE EVIDENCE COULD HAVE JUSTIFIED THE
COMMISSION IN FINDING THE EXISTENCE OF THROUGH ROUTES WE NEED NOT
DETERMINE.  WE ARE SATISFIED, HOWEVER, THAT THE EVIDENCE BEFORE THE
COMMISSION DID NOT COMPEL IT TO MAKE SUCH A FINDING AND THAT ITS
CONCLUSION THAT THE THROUGH ROUTES CLAIMED WERE NOT IN EXISTENCE IS
SUPPORTED BY SUBSTANTIAL EVIDENCE. 

THERE WAS EVIDENCE THAT AS EARLY AS 1897 THE UNION PACIFIC AND LINES
IT CONTROLLED DID ESTABLISH THROUGH ROUTES TO AND FROM POINTS IN THE
"CLOSED" NORTHWEST TERRITORY THROUGH THE OGDEN GATEWAY, AND DID
ESTABLISH JOINT THROUGH RATES WITH THE RIO GRANDE ON THE SAME BASIS AS
THE JOINT THROUGH RATES ON UNION PACIFIC'S OWN LINES.  BUT THESE JOINT
RATES WERE CANCELED BY UNION PACIFIC IN AMENDED TARIFFS PUBLISHED
BETWEEN 1906 AND 1912.  APPARENTLY THERE WAS NO LANGUAGE IN THE
PUBLISHED AMENDED TARIFFS EXPRESSLY AND FORMALLY DECLARING THAT THE
THROUGH ROUTES BY WAY OF THE OGDEN GATEWAY WERE ALSO TO BE DEEMED
CLOSED.  THE AMENDED TARIFFS, HOWEVER, RESULTED IN VERY HIGH
COMBINATION RATES FOR NORTHWEST TRAFFIC TRANSPORTED BY THE RIO GRANDE. 
THE EFFECT OF THESE HIGH RATES HAS BEEN GREATLY TO HANDICAP IF NOT
ACTUALLY TO CLOSE THE RIO GRANDE AS AN ARTERY FOR THROUGH TRAFFIC
BETWEEN THE NORTHWEST, DENVER AND POINTS SOUTH AND EAST.  OF COURSE THE
EFFECT OF SUCH RATES MIGHT NOT BE ENOUGH STANDING ALONE TO SHOW A
VOLUNTARY ABANDONMENT OF THE THROUGH ROUTES.  SEE VIRGINIAN R. CO. V.
UNITED STATES, 272 U.S. 658, 666; THOMPSON V. UNITED STATES, SUPRA, AT
556-558.  AT THE SAME TIME IT CANNOT BE SAID THAT THE UNION PACIFIC'S
FAILURE FORMALLY TO DECLARE THE THROUGH ROUTES ABANDONED IN 1906 (WHEN
IT CANCELED JOINT RATES) AUTOMATICALLY LEFT THE THROUGH ROUTES IN
EXISTENCE FOR SEC. 15(4) PURPOSES IN 1949 WHEN THIS LITIGATION
STARTED.  CANCELLATION OF THE RATES IN 1906 WITHOUT FORMAL CANCELLATION
OF THE ROUTES IS ONLY A CIRCUMSTANCE TO BE CONSIDERED ALONG WITH OTHER
CIRCUMSTANCES IN DETERMINING WHETHER THROUGH ROUTES NOW EXIST.  THE
COLORADO COURT RELIED ON RAILROAD PRACTICES AS OTHER CIRCUMSTANCES
WHICH, CONSIDERED WITH THE FAILURE EXPRESSLY TO ABANDON THROUGH ROUTES,
WERE SUFFICIENT TO COMPEL THE COMMISSION TO HOLD THAT THROUGH ROUTES
DID EXIST.  WE TURN TO THAT. 

AT BEST FOR THE RIO GRANDE THE EVIDENCE OF RAILROAD PRACTICES WITH
REFERENCE TO THE CONTINUED EXISTENCE OF THROUGH ROUTES SHOWED THE
FOLLOWING.  DESPITE THE HIGH COMBINATION RATES A SMALL NUMBER OF
SHIPMENTS CONTINUE TO TRICKLE THROUGH THE OGDEN GATEWAY TO AND FROM THE
CLOSED NORTHWEST TERRITORY.  IN 1948, WHICH THE COMMISSION CONSIDERED A
REPRESENTATIVE YEAR, A NUMBER OF CARLOAD SHIPMENTS MOVED ON THROUGH
BILLS OF LADING ALONG THE ALLEGED THROUGH ROUTES.  BUT NONE OF THEM
COMING FROM THE NORTHWEST WENT FURTHER THAN POINTS ON THE RIO GRANDE IN
COLORADO ALSO SERVED BY THE UNION PACIFIC AND CONNECTING LINES.  THERE
WERE A FEW SHIPMENTS OF VARIOUS COMMODITIES FROM EAST AND SOUTH OF
DENVER WHICH WENT BY WAY OF THE RIO GRANDE THROUGH THE OGDEN GATEWAY. 
THE TOTAL SHIPMENTS OVER THE ALLEGED THROUGH ROUTES, HOWEVER, WERE NO
MORE THAN A FRACTIONAL PART OF ONE PERCENT OF THE TRAFFIC CARRIED TO
AND FROM THE NORTHWEST BY WAY OF THE UNION PACIFIC ROUTES.  IT IS ALSO
UNDISPUTED THAT THROUGH ROUTES AND JOINT RATES EXIST FOR EASTBOUND
SHIPMENTS OF SHEEP AND GOATS.  DURING WORLD WAR II SOME ARMY TROOP AND
SUPPLY TRAINS MOVED OVER THE RIO GRANDE ON THROUGH BILLS OF LADING.  IN
ADDITION TO THE FOREGOING SOME TRAFFIC MOVED OVER THE RIO GRANDE IN
1949 WHEN SNOW STORMS BLOCKED THE UNION PACIFIC ROUTE THROUGH WYOMING. 
THESE MOVEMENTS WERE MADE UNDER SERVICE ORDERS OF THE COMMISSION, WHICH
DID NOT EXERCISE ITS AUTHORITY UNDER SEC. 15(4) TO ESTABLISH EMERGENCY
THROUGH ROUTES. 

THE UNION PACIFIC PRODUCED EVIDENCE TENDING TO SHOW THAT THERE WERE
NO THROUGH ROUTES.  IT QUITE PLAINLY APPEARS FROM THE RECORD THAT THERE
HAS BEEN A LONG-STANDING STRUGGLE BETWEEN THE UNION PACIFIC AND THE RIO
GRANDE OVER THE EFFORTS OF THE UNION PACIFIC TO KEEP THE OGDEN GATEWAY
CLOSED.  WE THINK THE RECORD SUPPORTS THE FINDING OF THE COMMISSION
THAT:    "THERE IS NO INDICATION THAT ANY OF THE DEFENDANTS HAS EVER
SOLICITED ANY TRAFFIC FROM AND TO THE AREAS HERE CONCERNED FOR ROUTING
OVER A RIO GRANDE ROUTE BY WHICH A HIGHER COMBINATION RATE APPLIED, OR
HAS EVER USED SUCH A RIO GRANDE ROUTE EXCEPT WHERE CALLED UPON TO DO SO
BY ROUTING SPECIFIED BY THE SHIPPER OR BY A PRIOR CONNECTING CARRIER. 
IN OTHER WORDS, SO FAR AS THIS RECORD SHOWS, 'THE CARRIERS' COURSE OF
BUSINESS' HAS BEEN AND IS TO USE THE UNION PACIFIC ROUTES EXCEPT WHERE
CALLED UPON TO USE THE RIO GRANDE ROUTES BY FORCE OF SHIPPERS' OR
CONNECTING CARRIERS' ROUTING.  THE WHOLE COURSE OF CONDUCT OF THE UNION
PACIFIC, SO FAR AS REVEALED, HAS BEEN FOR MANY YEARS AND IS NOW TO
GUARD JEALOUSLY ITS LONG HAUL AND NOT OPEN COMMERCIALLY THE RIO GRANDE
ROUTES ON THIS TRAFFIC."  287 I.C.C., AT 618. 

WE ADHERE TO THE "HOLDING OUT" TEST OF THE THOMPSON CASE.  THE
EVIDENCE BEFORE THE COMMISSION WAS NOT SUCH AS TO COMPEL IT TO FIND
THAT THE UNION PACIFIC HELD ITSELF OUT AS OFFERING THROUGH SERVICE OVER
THE RIO GRANDE LINES.  IT WAS ERROR FOR THE COLORADO DISTRICT COURT TO
SET ASIDE THE COMMISSION'S FINDING AND TO REMAND THE CASE TO THE
COMMISSION.  THIS BRINGS US TO A CONSIDERATION OF THE NEBRASKA DISTRICT
COURT'S ACTION. 

THE COMMISSION REQUIRED THE UNION PACIFIC TO ESTABLISH THROUGH ROUTES
AND JOINT RATES WITH THE RIO GRANDE FOR THE CARRIAGE OF CERTAIN
COMMODITIES INCLUDING LIVESTOCK, FRESH FRUITS AND VEGETABLES, FROZEN
FOODS, BUTTER, AND EGGS.  (FN4)  THE ORDER RESTED ON THE COMMISSION'S
CONCLUSION THAT SUCH THROUGH ROUTES AND JOINT RATES WERE "NECESSARY AND
DESIRABLE IN THE PUBLIC INTEREST, IN ORDER TO PROVIDE ADEQUATE AND MORE
ECONOMIC TRANSPORTATION  ...  ."  287 I.C.C., AT 659.  THIS CONCLUSION
WAS BASED ON FINDINGS FROM A VAST AMOUNT OF EVIDENCE BOTH ORAL AND
WRITTEN.  THE PERTINENT LANGUAGE OF SEC. 15(4) ALLOWS THE COMMISSION TO
ESTABLISH THROUGH ROUTES WHERE "NEEDED IN ORDER TO PROVIDE ADEQUATE,
AND MORE EFFICIENT OR MORE ECONOMIC, TRANSPORTATION."  THE DISPUTE IN
THE NEBRASKA COURT AND HERE RELATES PRINCIPALLY TO THE ADEQUACY OF THE
EXISTING TRANSPORTATION SERVICES.  THE EFFICIENCY OF UNION PACIFIC
SERVICES WAS ESTABLISHED BEYOND DISPUTE. 

SHIPPERS AND THE KIND OF SERVICES THEY GET AND NEED AS WELL AS THE
INTERESTS OF CARRIERS IN DETERMINING WHETHER ADDITIONAL ROUTES SHOULD
BE ESTABLISHED TO PROVIDE "ADEQUATE" AND "MORE ECONOMIC" TRANSPORTATION
SERVICE. 

WE HAVE HELD THAT IN DETERMINING THIS QUESTION THE COMMISSION SHOULD
LOOK BEYOND THE MERE ADEQUACY OF THE CARRIER'S PHYSICAL OPERATIONS "TO
THE BROADER PUBLIC INTEREST WHICH EMBRACES SERVICE TO SHIPPERS AND THE
RATES THEY PAY."  PENNSYLVANIA R. CO. V. UNITED STATES, 323 U.S. 588,
591-593.  THE DUTY OF THE COMMISSION, AS WE THERE STATED, IS TO TRY TO
STRIKE A FAIR BALANCE IN SATISFYING THE NEEDS OF SHIPPERS, RAILROADS,
AND THE PUBLIC.  THIS OF COURSE CALLS FOR THE COMMISSION TO EXERCISE
ITS INFORMED JUDGMENT, HAVING IN MIND ITS STATUTORY OBLIGATION TO
DEVELOP, COORDINATE AND PRESERVE AN ADEQUATE NATIONAL TRANSPORTATION
SYSTEM.  (FN5)  THIS IT DID.  RELYING ON OUR INTERPRETATION OF SEC.
15(4) IN THE PENNSYLVANIA RAILROAD CASE, THE COMMISSION CONSIDERED THE
VARIOUS INTERESTS HERE.  IT FOUND THAT:  "BECAUSE OF THEIR GENERALLY
PERISHABLE NATURE, FOOD ARTICLES  ...  MUST BE MOVED TO MARKET WITH
EXPEDITION AND CARE, AND OVER AS MANY ROUTES AS POSSIBLE.  THIS
REQUIRES THAT MANY ROUTES BE OPEN IN ORDER THAT UNNECESSARY
INTERRUPTIONS OF THE FREE FLOW OF SUCH COMMODITIES MAY BE AVOIDED AND
THAT AS MUCH FLEXIBILITY AS POSSIBLE IN THE DISTRIBUTION PROCESS BE
PERMITTED.  A NUMBER OF SERVICES, NOT ONLY AT ORIGIN AND DESTINATION,
BUT EN ROUTE, WHICH ARE NOT USUALLY REQUIRED IN THE MOVEMENT OF
ORDINARY TRAFFIC, MUST BE PROVIDED FOR THESE PERISHABLE AND
SEMIPERISHABLE COMMODITIES."   287 I.C.C., AT 656.  THERE ARE
FACILITIES ALONG THE RIO GRANDE ROUTE FOR FEEDING AND GRAZING LIVESTOCK
IN TRANSIT, AND FOR PARTIAL UNLOADING, STORING OR PROCESSING OTHER
SHIPMENTS IN TRANSIT.  AS A RESULT SHIPPERS IN THE NORTHWEST TERRITORY
WERE FOUND TO BE "DEBARRED FROM EFFECTIVE PARTICIPATION IN THE
WIDESPREAD SYSTEM DEVELOPED FOR THE MARKETING OF SUCH COMMODITIES" AND
PROCESSORS, SHIPPERS AND DEALERS ALONG THE RIO GRANDE WERE FOUND TO BE
AT A DISADVANTAGE IN COMPETING WITH THOSE ON THE UNION PACIFIC.  FOR
THE SPECIFIED COMMODITIES THE COMMISSION FOUND THE UNION PACIFIC ROUTES
TO BE "INADEQUATE AND LESS ECONOMICAL THAN ARE THE RIO GRANDE ROUTES." 
(FN6) THE NEBRASKA DISTRICT COURT SUSTAINED THE COMMISSION'S ORDER WITH
REFERENCE TO SHIPMENTS WHICH REQUIRED TRANSIT SERVICES ON THE RIO
GRANDE.  WE AGREE WITH THIS PORTION OF THE HOLDING.  WE CANNOT SAY THAT
THE COMMISSION ACTED IN EXCESS OF ITS AUTHORITY IN CONCLUDING, ON THE
MASS OF EVIDENCE BEFORE IT, THAT THROUGH ROUTES AND JOINT RATES ON THE
SPECIFIED COMMODITIES WERE NEEDED TO PROVIDE ADEQUATE AND MORE ECONOMIC
TRANSPORTATION AND WERE NECESSARY IN THE PUBLIC INTEREST. 

BUT THE SCOPE OF THE COMMISSION'S ORDER WAS CUT DOWN BY THE NEBRASKA
COURT INSOFAR AS IT ESTABLISHED THROUGH ROUTES AND JOINT RATES ON
SHIPMENTS THAT DID NOT REQUIRE TRANSIT SERVICES SUCH AS WE HAVE
MENTIONED.  WE DISAGREE WITH THE NEBRASKA DISTRICT COURT IN THIS
RESPECT.  THE EVIDENCE SHOWED AND THE COMMISSION FOUND THAT IN
MARKETING FOOD AND OTHER PERISHABLE PRODUCTS IT IS A GENERAL PRACTICE
AMONG RAILROADS TO ALLOW DIVERSION OF CARLOADS IN TRANSIT AS MARKETS
ARE FOUND AND SALES ARE MADE.  THE SUCCESSFUL OPERATION OF THIS
PRACTICE REQUIRES THE EXISTENCE OF JOINT THROUGH RATES TO THE FINAL
MARKET, SINCE DIVERSION OR RECONSIGNMENT WOULD OFTEN, AS A PRACTICAL
MATTER, BE UNAVAILABLE TO A SHIPPER WHO IS COMPELLED TO RECONSIGN HIS
GOODS AT HIGH COMBINATION RATES.  THE COMMISSION FOUND THAT "IF A
SHIPMENT REACHES A POINT THROUGH WHICH A COMBINATION OF RATES APPLIES
AND THE SALE IS LOST, IT IS FREQUENTLY NECESSARY TO DISPOSE OF THE
SHIPMENT AT THAT POINT AT A FORCED OR DISTRESS PRICE.  SUCH POINTS ARE
CALLED CLOSED OR POCKET MARKETS."  287 I.C.C., AT 642.  TO ILLUSTRATE
ITS CONCLUSION THAT COMBINATION RATES RESULT IN INADEQUATE
TRANSPORTATION SERVICE IN SITUATIONS WHERE SHIPPERS ARE COMPELLED TO
RECONSIGN, THE COMMISSION NOTED THAT:  "IDAHO PRODUCERS ARE IN
COMPETITION WITH SHIPPERS IN OTHER PRODUCING AREAS AND FIND IT
DIFFICULT TO COMPETE ON SHIPMENTS ROUTED OVER THE RIO GRANDE VIA OGDEN
OR SALT LAKE CITY.  ONE IDAHO SHIPPER HAS MADE FEW SALES OF POTATOES IN
THE SOUTHWEST IN THE LAST SEVERAL YEARS BECAUSE OF POCKET MARKETS
THERE."  287 I.C.C., AT 643.  POCKET MARKETS, OF COURSE, EXIST BECAUSE
RECONSIGNMENT IS POSSIBLE ONLY AT HIGH COMBINATION RATES.  WE SEE NO
REASON WHY A SHIPPER'S PRIVILEGE TO HAVE HIS GOODS RECONSIGNED AT JOINT
RATES SHOULD NOT BE CONSIDERED ON THE SAME BASIS AS TRANSIT SERVICES IN
DETERMINING THE ADEQUACY AND ECONOMY OF EXISTING TRANSPORTATION.  WE
THINK IT WAS ERROR FOR THE NEBRASKA COURT TO NARROW THE SCOPE OF THE
COMMISSION'S ORDER BY EXCLUDING SHIPMENTS OF COMMODITIES WHICH SO
URGENTLY NEED THE ADVANTAGE OF RECONSIGNMENT PRIVILEGES AT JOINT
RATES. 

MANY OTHER ARGUMENTS ARE MADE AGAINST THE COMMISSION'S ORDER.  IT IS
POINTED OUT, FOR EXAMPLE, THAT THE RIO GRANDE ROAD HAS MORE CURVES THAT
THE UNION PACIFIC.  ITS GRADES ARE STEEPER.  CONSEQUENTLY ITS TRAFFIC
IS SOMETIMES SLOWER.  IT IS CONTENDED THAT THE EVIDENCE AS A WHOLE IS
INSUFFICIENT TO JUSTIFY THE HOLDING THAT THE ESTABLISHMENT OF THROUGH
ROUTES WILL BE OF SUCH GREAT ADVANTAGE TO SHIPPERS AND THE PUBLIC THAT
THE UNION PACIFIC SHOULD BE COMPELLED TO SHORT-HAUL ITSELF.  WE ARE NOT
UNMINDFUL OF THE FORCE OF THE ARGUMENTS MADE BY THE UNION PACIFIC AND
BY THOSE WHO HAVE INTERVENED ON ITS SIDE.  IT IS ENTIRELY POSSIBLE THAT
THE COMMISSION COULD HAVE MADE FINDINGS CONTRARY TO THOSE IT DID MAKE. 
BUT ON THE WHOLE WE ARE UNABLE TO SAY THAT THE COMMISSION DID NOT
STRIKE A FAIR BALANCE IN FINDING THAT THE EVIDENCE REQUIRED THE
ESTABLISHMENT OF THESE THROUGH ROUTES AND JOINT RATES.  AFTER
CONSIDERATION OF ALL THE CONTENTIONS MADE, WE HOLD THAT THE NEBRASKA
COURT SHOULD HAVE SUSTAINED THE COMMISSION'S ORDER IN FULL.  (FN7)
SINCE THE COMMISSION'S ORDER IS JUSTIFIED UNDER SECS. 15(1), 15(3) AND
15(4) WE HAVE NO OCCASION TO CONSIDER CONTENTIONS RAISED UNDER SECS.
3(1) AND 3(4). 

THE JUDGMENT OF THE DISTRICT COURT OF COLORADO IS REVERSED WITH
DIRECTIONS TO DISMISS THE BILL.  THE JUDGMENT OF THE NEBRASKA DISTRICT
COURT IS AFFIRMED INSOFAR AS IT AFFIRMED THE ORDER OF THE COMMISSION,
AND IS REVERSED INSOFAR AS THE COURT REFUSED TO ENFORCE THE
COMMISSION'S ORDER.  IT IS SO ORDERED. 

FN1  24 STAT. 379, 380, 384, AS AMENDED, 49 U.S.C. SECS. 1(4), 3,
15(1), 15(3).  SECTION 1(4) MAKES IT THE DUTY OF COMMON CARRIERS "TO
ESTABLISH REASONABLE THROUGH ROUTES WITH OTHER SUCH CARRIERS, AND JUST
AND REASONABLE RATES  ...  ."  AND SEC. 3(4) ENJOINS CARRIERS TO
"AFFORD ALL REASONABLE, PROPER, AND EQUAL FACILITIES FOR THE
INTERCHANGE OF TRAFFIC" WITHOUT DISCRIMINATION OR UNDUE PREJUDICE. 

FN2  24 STAT. 384, AS AMENDED, 49 U.S.C. SEC. 15(4). 

FN3  FIVE COMMISSIONERS THOUGHT THAT THROUGH ROUTES WERE IN
EXISTENCE; FIVE WERE OF THE OPINION THAT THEY WERE NOT.  UNDER ICC
PRACTICE THIS MEANT THAT THE RIO GRANDE HAD FAILED TO PROVE ITS
ALLEGATION THAT THROUGH ROUTES EXISTED. 

FN4  THE COMMISSION ORDERED THE RAILROADS: 

"TO MAINTAIN THROUGH ROUTES, VIA OGDEN OR SALT LAKE CITY, UTAH, IN
CONNECTION WITH THE LINE OF THE COMPLAINANT, FOR THE INTERSTATE
TRANSPORTATION, IN CARLOADS, OF GRANITE AND MARBLE MONUMENTS FROM
ORIGINS IN VERMONT AND GEORGIA TO DESTINATIONS IN THE EXCLUDED
TERRITORY IN THE NORTHWEST AREA, AS DESCRIBED IN THE REPORT, AND OF
ORDINARY LIVESTOCK, FRESH FRUITS AND VEGETABLES, DRIED BEANS, FROZEN
POULTRY, FROZEN FOODS, BUTTER, AND EGGS, IN CARLOADS, FROM ORIGINS IN
THE DESCRIBED EXCLUDED TERRITORY TO DESTINATIONS IN THE UNITED STATES
SOUTH AND EAST OF A LINE DRAWN ALONG THE SOUTHERN BOUNDARY OF KANSAS,
THENCE THE EASTERN BOUNDARY OF KANSAS TO BUT NOT INCLUDING KANSAS CITY,
THENCE IMMEDIATELY WEST OF POINTS ON THE MISSOURI RIVER FROM KANSAS
CITY, KANS., TO OMAHA, NEBR., THENCE IMMEDIATELY NORTH OF POINTS ON THE
LINES OF THE UNION PACIFIC RAILROAD COMPANY AND THE CHICAGO AND NORTH
WESTERN RAILWAY COMPANY FROM OMAHA TO CHICAGO, ILL., INCLUDING
DESTINATIONS IN THE LOWER PENINSULA OF MICHIGAN AND IN OKLAHOMA AND
TEXAS; AND TO APPLY ON SUCH TRAFFIC, OVER SUCH THROUGH ROUTES, JOINT
RATES THE SAME AS THOSE MAINTAINED AND APPLIED ON LIKE TRAFFIC FROM AND
TO THE SAME POINTS OVER ROUTES EMBRACING THE LINES OF THE UNION PACIFIC
RAILROAD COMPANY THROUGH WYOMING." 

FN5 54 STAT. 899.  SEE ALSO NEW ENGLAND DIVISIONS CASE, 261 U.S. 184;
UNITED STATES V. GREAT NORTHERN R. CO., 343 U.S. 562, 575-576. 

FN6  BECAUSE OF THE INABILITY OF MOST GRANITE AND MARBLE MONUMENT
RETAILERS TO PURCHASE ENTIRE CARLOAD LOTS THE COMMISSION FOUND "AN
URGENT NEED FOR THE ESTABLISHMENT OF JOINT THROUGH RATES ON THIS
TRAFFIC TO DESTINATIONS IN THE EXCLUDED TERRITORY WITH STOP-OFF
PRIVILEGES AT INTERMEDIATE POINTS ON THE RIO GRANDE."  287 I.C.C., AT
638. 

FN7  IN REACHING OUR CONCLUSION WE HAVE NOT OVERLOOKED ATTACKS ON THE
BREADTH OF THE ORDER WITH RESPECT TO MARBLE, GRANITE, AND LIVESTOCK
SHIPMENTS, NOR CHALLENGES TO THAT PART OF THE ORDER CORRECTING
DISCRIMINATION IN FAVOR OF THE BAMBERGER RAILROAD. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

I AGREE WITH THE COURT THAT THROUGH ROUTES WERE NOT IN EXISTENCE AND
THAT JOINT RATES ARE THEREFORE NOT EMPOWERED UNDER SEC. 15(3) OF THE
INTERSTATE COMMERCE ACT, UNQUALIFIED BY SEC. 15(4).  54 STAT. 898, 911
912, 49 U.S.C. SEC. 15(3), (4).  THE CONTROVERSY THUS TURNS ON THE
ENFORCEMENT OF CONGRESSIONAL POLICY EXPRESSED AS FOLLOWS IN SEC.
15(4): 

"IN ESTABLISHING ANY SUCH THROUGH ROUTE THE COMMISSION SHALL NOT
(EXCEPT AS PROVIDED IN SECTION 3, AND EXCEPT WHERE ONE OF THE CARRIERS
IS A WATER LINE) REQUIRE ANY CARRIER BY RAILROAD AND OF ANY
INTERMEDIATE RAILROAD OPERATED IN CONJUNCTION AND UNDER A COMMON
MANAGEMENT OR CONTROL THEREWITH, WHICH LIES BETWEEN THE TERMINI OF SUCH
PROPOSED THROUGH ROUTE, (A) UNLESS SUCH INCLUSION OF LINES WOULD MAKE
THE THROUGH ROUTE UNREASONABLY LONG AS COMPARED WITH ANOTHER
PRACTICABLE THROUGH ROUTE WHICH COULD OTHERWISE BE ESTABLISHED, OR (B)
UNLESS THE COMMISSION FINDS THAT THE THROUGH ROUTE PROPOSED TO BE
ESTABLISHED IS NEEDED IN ORDER TO PROVIDE ADEQUATE, AND MORE EFFICIENT
OR MORE ECONOMIC, TRANSPORTATION: PROVIDED, HOWEVER, THAT IN
PRESCRIBING THROUGH ROUTES THE COMMISSION SHALL, SO FAR AS IS
CONSISTENT WITH THE PUBLIC INTEREST, AND SUBJECT TO THE FOREGOING
LIMITATIONS IN CLAUSES (A) AND (B), GIVE REASONABLE PREFERENCE TO THE
CARRIER BY RAILROAD WHICH ORIGINATES THE TRAFFIC  ...  ." 

AS IS TRUE SO OFTEN IN APPLYING REGULATORY LEGISLATION, THE GENERAL
APPROACH - THAT IS, THE STARTING POINT - MAY BE DETERMINATIVE OF THE
RESULT.  IT MAKES A VITAL DIFFERENCE WHETHER SEC. 15(4) IS DEEMED A
RESTRICTION ON THE POWER OF THE INTERSTATE COMMERCE COMMISSION WHICH IS
TO BE CLOSELY CONFINED AND SHARPLY CONSTRUED OR WHETHER IT IS DEEMED TO
EXPRESS A LEGISLATIVE COMMAND WHICH OUGHT TO BE HEEDED AND NOT
SLIGHTINGLY ENFORCED.  THE FACT OF THE MATTER IS THAT WE ARE DEALING
WITH A PROVISION OF THE LAW WHICH THE COMMISSION HAS LONG CONSIDERED
UNDESIRABLE FROM THE POINT OF VIEW OF A NATIONAL RAILROAD POLICY AND
WHOSE REPEAL IT HAS CONSISTENTLY URGED UPON CONGRESS.  (SEE THE HISTORY
SET FORTH IN THOMPSON V. UNITED STATES, 343 U.S. 459, 554-556.) 
ALTHOUGH CONGRESS HAS, FROM THE TIME OF THE COMMISSION'S CREATION AND
ESPECIALLY IN RECENT YEARS, RELIED ON THE COMMISSION AS ITS EXPERT
ADVISER ON POLICY, AND LEGISLATION HAS LARGELY REFLECTED THE
COMMISSION'S RECOMMENDATIONS, THE LATTER'S PERSISTENCE IN RECOMMENDING
REPEAL OF SEC. 15(4) HAS BEEN MATCHED AND OVERBORNE BY THE PERSISTENCE
OF CONGRESS IN RETAINING IT.  CONGRESS HAS EMPHATICALLY MADE CLEAR THAT
IN ITS VIEW THE NATIONAL INTEREST REQUIRES THE PROTECTION OF RAILROADS
AGAINST BEING SHORT-HAULED.  ENCOURAGEMENT SHOULD NOT BE GIVEN TO
DISREGARD OF THAT POLICY, EVEN IF SUCH DISREGARD OCCURS THROUGH
INADEQUATE OBSERVANCE ATTRIBUTABLE TO AN UNCONSCIOUS DESIRE TO RESTRICT
THE SCOPE OF THE STATUTE.  IN SHORT, WHEN AN ORDER OF THE COMMISSION IS
BROUGHT UNDER JUDICIAL SCRUTINY, AND CHALLENGE IS MADE THAT THE
SAFEGUARDS OF SEC. 15(4) HAVE NOT BEEN OBSERVED, IT IS THE DUTY OF THIS
COURT TO APPLY THE POLICY EXPRESSED BY THAT SECTION.  IF THE REQUISITE
FINDINGS OR CONCLUSIONS ARE AMBIGUOUS OR UNCLEAR, OR THE POLICY OF THE
DISPEL AMBIGUITY OR TO SECURE CLARITY AND OBEDIENCE TO THE POLICY. 

IT IS MY VIEW THAT, EVEN THOUGH EVIDENCE MAY BE FOUND IN THE RECORD
TO SUPPORT A PORTION OF THE ORDER, THE COMMISSION DID NOT SUPPORT THE
PORTION ON THAT BASIS BUT, ON THE CONTRARY, APPEARS TO HAVE JUSTIFIED
THE WHOLE ORDER ON CONSIDERATIONS THAT COLLIDE WITH CONGRESSIONAL
POLICY.  THE PROCEEDINGS SHOULD THEREFORE BE RETURNED TO THE COMMISSION
AND THE ORDER OUGHT NOT TO BE SUSTAINED IN WHOLE OR IN PART.  I WILL
SUMMARIZE THE REASONS FOR THIS CONCLUSION. 

THE COMMISSION ORDERED THE ESTABLISHMENT OF THROUGH ROUTES AND JOINT
RATES BY THE UNION PACIFIC WITH THE RIO GRANDE FOR SHIPMENTS OF
LIVESTOCK AND CERTAIN PERISHABLE AGRICULTURAL PRODUCTS ORIGINATING IN
THE NORTHWEST (EXCLUDED) TERRITORY AND DESTINED FOR THAT PART OF THE
UNITED STATES WHICH THE NEBRASKA DISTRICT COURT ROUGHLY DESCRIBED AS
"EAST OF DENVER."* 132 F. SUPP. 72, 75, N. 1.   APPARENTLY, THROUGH
ROUTES AND JOINT RATES WERE ALREADY IN EXISTENCE FOR SHIPMENTS VIA THE
OGDEN GATEWAY BETWEEN THE NORTHWEST TERRITORY AND INTERMEDIATE POINTS
ON THE RIO GRANDE, ORIGINATING OR TERMINATING AT THOSE INTERMEDIATE
POINTS.  JOINT THROUGH RATES, HOWEVER, WERE NOT GENERALLY IN EFFECT
OVER THE RIO GRANDE TO OR FROM THE COLORADO OR UTAH COMMON POINT
TERRITORY (E.G., DENVER, COLORADO SPRINGS, AND PUEBLO; OGDEN, SALT LAKE
CITY, AND PROVO) OF THE RIO GRANDE AND THE UNION PACIFIC AND OTHER
DEFENDANTS, OR FOR TRANSCONTINENTAL TRAFFIC BETWEEN THE NORTHWEST
TERRITORY AND POINTS EAST OF THE COLORADO COMMON POINTS.  THE
COMMISSION DID NOT ORDER THROUGH ROUTES AND JOINT RATES TO THE UTAH OR
COLORADO COMMON POINTS OR TO A LARGE AREA WHICH IS IN FACT EAST OF
DENVER.  (SEE DESCRIPTION IN FOOTNOTE *.)  THROUGH ROUTES AND JOINT
RATES OVER THE RIO GRANDE ALSO WERE NOT ORDERED FOR WESTBOUND TRAFFIC
TO THE NORTHWEST TERRITORY ORIGINATING EAST OF THE COLORADO COMMON
POINTS, EXCEPT FOR GRANITE AND MARBLE MONUMENTS FROM ORIGINS IN VERMONT
AND GEORGIA.  THE COMMISSION FOUND THAT IT WAS "NECESSARY AND DESIRABLE
IN THE PUBLIC INTEREST, IN ORDER TO PROVIDE ADEQUATE AND MORE ECONOMIC
TRANSPORTATION," 287 I.C.C. 611, 659, TO ESTABLISH THE SPECIFIED
THROUGH ROUTES AND JOINT RATES.  THE COMMISSION GAVE THIS JUSTIFICATION
FOR ITS FINDING: 

"  ...  THE GROWTH OF OUR POPULATION AND THE DEVELOPMENT OF THE
COUNTRY HAVE REQUIRED A CONSTANTLY EXPANDING FLOW OF DIVERSE
COMMODITIES  ...  .  MOVEMENTS OF TRANSCONTINENTAL PROPORTIONS ARE
INVOLVED IN IMPORTANT INSTANCES  ...  .  A COMPLEX BUT EFFICIENT
MARKETING SYSTEM HAS BEEN EVOLVED TO PROVIDE AS ORDERLY A DISTRIBUTION
OF FOOD COMMODITIES AS POSSIBLE.  ADEQUATE TRANSPORTATION FACILITIES
AND SERVICES ARE REQUIRED FOR THE PROPER FUNCTIONING OF THE SYSTEM. 
BECAUSE OF THEIR GENERALLY PERISHABLE NATURE, (THE ENUMERATED) FOOD
ARTICLES  ...  MUST BE MOVED TO MARKET WITH EXPEDITION AND CARE, AND
OVER AS MANY ROUTES AS POSSIBLE.  THIS REQUIRES THAT MANY ROUTES BE
OPEN IN ORDER THAT UNNECESSARY INTERRUPTIONS OF THE FREE FLOW OF SUCH
COMMODITIES MAY BE AVOIDED AND THAT AS MUCH FLEXIBILITY AS POSSIBLE IN
THE DISTRIBUTION PROCESS BE PERMITTED.  A NUMBER OF SERVICES, NOT ONLY
AT ORIGIN AND DESTINATION, BUT EN ROUTE, WHICH ARE NOT USUALLY REQUIRED
IN THE MOVEMENT OF ORDINARY TRAFFIC, MUST BE PROVIDED FOR THESE
PERISHABLE AND SEMIPERISHABLE COMMODITIES."  287 I.C.C., AT 655-656. 

*IT USED THE PHRASE TO DESIGNATE THE POINTS INCLUDED IN THE ORDER
WITH RESPECT TO WHICH THROUGH ROUTES AND JOINT RATES WERE ORDERED
ESTABLISHED FOR LIVESTOCK AND CERTAIN AGRICULTURAL COMMODITIES BY THE
UNION PACIFIC WITH THE RIO GRANDE.  THE COMMISSION IN ITS ORDER DEFINED
THESE POINTS AS: 

"DESTINATIONS IN THE UNITED STATES SOUTH AND EAST OF A LINE DRAWN
ALONG THE SOUTHERN BOUNDARY OF KANSAS, THENCE THE EASTERN BOUNDARY OF
KANSAS TO BUT NOT INCLUDING KANSAS CITY, THENCE IMMEDIATELY WEST OF
POINTS ON THE MISSOURI RIVER FROM KANSAS CITY, KANS., TO OMAHA, NEBR.,
THENCE IMMEDIATELY NORTH OF POINTS ON THE LINES OF THE UNION PACIFIC
RAILROAD COMPANY AND THE CHICAGO AND NORTH WESTERN RAILWAY COMPANY FROM
OMAHA TO CHICAGO, ILL., INCLUDING DESTINATIONS IN THE LOWER PENINSULA
OF MICHIGAN AND IN OKLAHOMA AND TEXAS  ...  ." 

THE COMMISSION ALSO FOUND SUPPORT FOR ITS CONCLUSION THAT SHIPPERS OF
THESE PRODUCTS ARE DEBARRED FROM PARTICIPATION IN THE WIDESPREAD
MARKETING SYSTEM IN THE FACT THAT "IN-TRANSIT" PRIVILEGES ON THE RIO
GRANDE, SUCH AS STOP-OFF FOR PARTIAL UNLOADING OR PROCESSING, OR FOR
GRAZING OF CATTLE, ARE NOT AVAILABLE TO SHIPPERS OF THESE COMMODITIES
FROM THE NORTHWEST TERRITORY, EXCEPT AT THE HIGHER COMBINATION RATES. 

THE COMMISSION CONSIDERED THROUGH ROUTES AND JOINT RATES TO POINTS
"EAST OF DENVER" AS A UNITARY PROBLEM AND SAW NO DIFFERENCE BETWEEN
SHIPMENTS DESTINED INITIALLY TO INTERMEDIATE POINTS ON THE RIO GRANDE
AND SHIPMENTS DESTINED INITIALLY TO POINTS "EAST OF DENVER."  THE
NEBRASKA DISTRICT COURT, HOWEVER, FOUND NOTHING IN THE EVIDENCE TO
SUPPORT A FINDING THAT THE TRANSPORTATION SERVICE FURNISHED BY UNION
PACIFIC ON THROUGH SERVICE BETWEEN THE NORTHWEST TERRITORY AND POINTS
"EAST OF DENVER" WAS INADEQUATE, AND AS TO LIVESTOCK THIS RESTRICTION
WAS NOT CONTESTED BY THE COMMISSION ON THIS APPEAL.  THE NEBRASKA
DISTRICT COURT, THEREFORE, NARROWED THE ORDER TO REQUIRE THROUGH ROUTES
AND JOINT RATES ONLY FOR THOSE CARLOADS ORIGINATING IN THE NORTHWEST
TERRITORY AND CONSIGNED TO INITIAL DESTINATION POINTS ON THE RIO GRANDE
WEST OF DENVER, PUEBLO, AND TRINIDAD, COLORADO, WHICH REQUIRE "IN
TRANSIT" PRIVILEGES INCIDENT TO RESHIPMENT TO POINTS EAST OF THOSE
PLACES. 

THE COURT, REJECTING THE NARROWED CONSTRUCTION BY THE NEBRASKA
DISTRICT COURT, AFFIRMS THE COMMISSION'S ORDER AS WRITTEN.  IN DOING
SO, HOWEVER, IT DOES NOT RELY ON THE REASONS GIVEN BY THE COMMISSION IN
SUPPORT OF ITS CONCLUSION, BUT RATHER IT AFFIRMS ON A DIFFERENT BASIS. 
HOW CAN WE KNOW WHETHER, AND TO WHAT EXTENT, THE COURT'S REASONS
INFLUENCED THE COMMISSION, OR WOULD INFLUENCE IT, IN MAKING ITS
DECISION?  THE REPORT CERTAINLY INDICATES THAT THE COMMISSION THOUGHT
ITS OWN REASONING SUFFICIENT TO SUPPORT THE WHOLE ORDER.  ONCE THE
COMMISSION'S REASONING FOR A CONCLUSION IS FOUND WANTING, THE
CONCLUSION IS NECESSARILY IMPAIRED.  WHILE THE JUDGMENT OF A LOWER
COURT MAY BE SUSTAINED BY THIS COURT ON A GROUND OTHER THAN THAT ON
WHICH IT WAS RESTED BELOW, SEE LANGNES V. GREEN, 282 U.S. 531, 534-539;
HELVERING V. GOWRAN, 302 U.S. 238, 245-247, THE LEGAL RELATION BETWEEN
THE COMMISSION AND THE COURTS IS OF A VERY DIFFERENT ORDER FROM THAT OF
A LOWER COURT AND A REVIEWING COURT.  A COMMISSION HAVING DEFINED AND
LIMITED DELEGATED POWER MUST JUSTIFY THE EXERCISE OF THAT POWER BY
FINDINGS THAT SUPPORT IT AND BY EVIDENCE THAT SUPPORTS THE FINDINGS. 
WHEN REGARD IS HAD FOR THE COMPLICATED TECHNICAL NATURE OF THE PROBLEMS
AND THE VOLUMINOUSNESS OF THE RECORDS IN THE IMPORTANT CASES THAT COME
BEFORE THE COMMISSION, A FAIR DISCHARGE OF ITS FUNCTIONS PRECLUDES
CASTING UPON A REVIEWING COURT THE TASK OF QUARRYING THOUGH A RECORD TO
FIND FOR ITSELF ADEQUATE EVIDENCE TO PERMIT THE EFFECTUATION OF ORDERS
OF THE COMMISSION. 

THE PRECISE FUNCTION OF FINDINGS IS TO MAKE PRACTICABLE SCRUTINY BY
THE COURTS IN ORDER TO DETERMINE WHETHER THE COMMISSION HAS KEPT WITHIN
THE BOUNDS LEGISLATIVELY DEFINED.  TO BE SURE, THE COMMISSION'S
FINDINGS ARE NOT BINDING IN THE SENSE THAT ATTACK CANNOT BE MADE ON
THEM FOR LACK OF EVIDENCE.  ICC V. LOUISVILLE & NASHVILLE R. CO., 227
U.S. 88, 91-94.  THE COMMISSION CANNOT - IT HAS NOT PURPORTED TO DO SO
HERE - PASS ON TO THE COURT AN UNANALYZED SUMMARY OF A LONG PROCEEDING
AND CALL IT FINDINGS.  WHILE FINDINGS NEED NOT BE FORMULATED IN AN
ENUMERATED SEQUENCE, HELPFUL AS THAT WOULD BE, THEY MUST AT LEAST
APPEAR IN A COMMISSION'S DECISION WITH UNAMBIGUOUS CLARITY, AND THEY
MUST BE LOGICALLY RELATED TO ITS CONCLUSION.  THE JUSTIFICATION THE
COMMISSION HAS GIVEN CANNOT BE REJECTED AND A NEW JUSTIFICATION FOUND
BY THE COURT TO SATISFY THE REQUIREMENT OF A FOUNDATION FOR JUDICIAL
REVIEW.  SEC V. CHENERY CORP., 318 U.S. 80, 92-95.  AFTER ALL, IT IS
THE COMMISSION WHICH CONGRESS HAS ESTABLISHED AS THE EXPERT IN THIS
FIELD. 

THE COMMISSION TREATED THE WHOLE PROBLEM OF JOINT RATES ALIKE,
WHETHER THE SHIPMENT WAS INITIALLY DESTINED FOR INTERMEDIATE POINTS ON
THE RIO GRANDE OR WHETHER IT WAS A THROUGH SHIPMENT.  THE COURT NOW
FINDS ONE JUSTIFICATION, THE INABILITY TO USE AVAILABLE "IN-TRANSIT"
PRIVILEGES OF THE RIO GRANDE, TO SUPPORT THE ORDER IN THE FORMER
SITUATION, AND ANOTHER JUSTIFICATION, ELIMINATION OF "POCKET MARKETS,"
TO SUPPORT THE ORDER IN THE LATTER SITUATION.  IT DOES NOT RELY ON WHAT
APPEARS TO HAVE BEEN THE PRINCIPAL, IF NOT THE ONLY, REASON WHICH THE
COMMISSION THOUGHT JUSTIFIED ITS WHOLE ORDER, THE NECESSITY FOR THE
SPECIFIED PRODUCTS TO BE ABLE TO MOVE TO MARKET "OVER AS MANY ROUTES AS
POSSIBLE."  INDEED, THAT VIEWPOINT OF THE COMMISSION IS DIRECTLY
CONTRARY TO THE CONGRESSIONAL POLICY EXPRESSED IN SEC. 15(4).  THE
THEORY OF THAT SECTION IS THAT PRODUCTS ARE NOT TO BE ABLE TO MOVE TO
MARKETS "OVER AS MANY ROUTES AS POSSIBLE" WHEN THAT WOULD INVOLVE SHORT
HAULING A CARRIER WITHOUT ITS CONSENT ON THE PROPOSED THROUGH ROUTE,
UNLESS, AMONG OTHER THINGS, THE TRANSPORTATION ALREADY IN EXISTENCE IS
INADEQUATE.  TO MAKE AVAILABLE TO SHIPPERS AS MANY ROUTES TO MARKET AS
POSSIBLE IS A POLICY WHICH THE COMMISSION HAS LONG URGED BUT WHICH THE
CONGRESS HAS RESOLUTELY REJECTED.  TO FIND INADEQUACY OF SERVICE ON A
SHORT-HAULED CARRIER IN THAT OTHER ROUTES ARE NOT MADE AVAILABLE WOULD
VIRTUALLY NULLIFY SEC. 15(4). 

IT MAY WELL BE THAT WHAT ARE SOMEWHAT MISLEADINGLY CALLED "IN
TRANSIT" PRIVILEGES JUSTIFY JOINT THROUGH RATES TO SHIPMENTS STOPPED AT
INTERMEDIATE POINTS ON THE RIO GRANDE FOR THOSE PRIVILEGES, AND ON
SIMILAR REASONING JOINT THROUGH RATES MIGHT BE JUSTIFIED FOR SHIPMENTS
INITIALLY CONSIGNED TO INTERMEDIATE POINTS ON THE RIO GRANDE AND
THEREAFTER RECONSIGNED TO POINTS "EAST OF DENVER" IF THE SALE IS LOST,
SUBJECT TO FINDINGS BEING MADE CONCERNING RECONSIGNMENT PRIVILEGES ON
THE RIO GRANDE.  IN BOTH SITUATIONS IT IS A FICTION TO SPEAK OF A
SINGLE SHIPMENT ON WHICH THE UNION PACIFIC WOULD BE SHORT-HAULED SHOULD
THE PROPOSED THROUGH ROUTE GO INTO EFFECT.  THE SITUATION INVOLVES TWO
SEPARATE SHIPMENTS FOR WHICH, UNDER NORMAL RAILROAD PRACTICE, ONLY THE
RATE OF A SINGLE CONTINUOUS SHIPMENT OVER THE WHOLE ROUTE IS CHARGED. 
ON NEITHER OF THESE SHIPMENTS IS UNION PACIFIC BEING SHORT-HAULED
BECAUSE IT IS CAPABLE OF PERFORMING NEITHER.  IN THIS SENSE, UNION
PACIFIC SERVICE IS OF COURSE NOT "ADEQUATE"; IT IS NON-EXISTENT.  BUT
THE COMMISSION DID NOT FOUND ITS ORDER ON SUCH AN ANALYSIS, AND I
CANNOT CONFIDENTLY SURMISE THAT IT WOULD HAVE ORDERED THE ESTABLISHMENT
OF THROUGH ROUTES AND JOINT RATES ON THIS BASIS.  SUCH A DETERMINATION
SHOULD BE LEFT FOR THE COMMISSION. 

THE COURT ALSO AFFIRMS THAT PART OF THE COMMISSION'S ORDER
ESTABLISHING THROUGH ROUTES AND JOINT RATES FOR SHIPMENTS DESTINED
INITIALLY TO POINTS "EAST OF DENVER."  IT DOES SO BOTH WITH RESPECT TO
THE SPECIFIED AGRICULTURAL PRODUCTS AND WITH RESPECT TO LIVESTOCK, EVEN
THOUGH THE COMMISSION DID NOT BEFORE US CONTEST THE NEBRASKA DISTRICT
COURT'S ELIMINATION OF THROUGH ROUTES AND JOINT RATES FOR LIVESTOCK TO
POINTS "EAST OF DENVER" FOR WANT OF EVIDENCE TO SUPPORT A FINDING OF
INADEQUACY OF SERVICE.  THIS COURT RELIES FOR SUPPORT OF THIS VERY
IMPORTANT PORTION OF THE COMMISSION'S ORDER ON A FEW PARAGRAPHS OF THE
COMMISSION'S REPORT UNDER THE HEADING "PROPONENTS' TESTIMONY" WHERE
SUCH TESTIMONY CONCERNING "POCKET MARKETS" IS SET FORTH.  THE
COMMISSION IN ITS "GENERAL DISCUSSION AND ULTIMATE FACT FINDINGS" MAKES
NO REFERENCE TO THE "POCKET MARKET" PROBLEM AS SUPPORTING ITS ORDER. 
INDEED, THE DISCUSSION OF "POCKET MARKETS" SEEMS RELATED ONLY TO THE
REFUSAL OF THE UNION PACIFIC TO ESTABLISH JOINT THROUGH RATES ON
SHIPMENTS GOING THROUGH CERTAIN POINTS EVEN OVER ITS OWN LINES (BECAUSE
THE POINTS INVOLVED ARE OFF THE MAIN LINE AND SUBSTANTIAL BACK HAULS OR
OUT-OF-LINE HAULS ARE REQUIRED), AND HAS NOTHING AT ALL TO DO WITH THE
RIO GRANDE.  MOREOVER, THE ORDER REQUIRING THE UNION PACIFIC TO
ESTABLISH THROUGH ROUTES WITH THE RIO GRANDE PRESCRIBES THAT THERE BE
MAINTAINED OVER SUCH ROUTES ONLY JOINT RATES "THE SAME AS THOSE
MAINTAINED AND APPLIED ON LIKE TRAFFIC FROM AND TO THE SAME POINTS OVER
ROUTES EMBRACING THE LINES OF THE UNION PACIFIC RAILROAD COMPANY
THROUGH WYOMING."  FROM ALL THAT APPEARS ON THE RECORD BEFORE US, THIS
COULD NOT AFFECT THE "POCKET MARKETS" COMPLAINED OF BECAUSE AT THOSE
POINTS THERE ARE NO JOINT THROUGH RATES OVER THE UNION PACIFIC.  SINCE
THE ESTABLISHMENT OF THROUGH ROUTES AND JOINT RATES FOR SHIPMENTS
DESTINED INITIALLY TO POINTS "EAST OF DENVER" APPEARS TO HAVE NO EFFECT
ON "POCKET MARKETS," IT IS DIFFICULT TO UNDERSTAND HOW THE "POCKET
MARKET" SITUATION CAN BE USED TO JUSTIFY THE ESTABLISHMENT OF SUCH
ROUTES AND RATES. 

THE UPSHOT OF ALL THIS IS THAT AFTER THE NEBRASKA THREE-JUDGE
DISTRICT COURT DISAGREED ABOUT THE JUSTIFICATION FOR THE ORDER AND THE
MAJORITY THOUGHT IT COULD BE SAVED BY NARROWING IT, THIS COURT
REINSTATES THE WHOLE ORDER, BUT ON A DIFFERENT BASIS FROM THAT OF THE
COMMISSION, AND WITH RESPECT TO A MAJOR PORTION OF THE ORDER, IT DOES
SO ON A GROUND WHICH APPEARS TO HAVE NO SUPPORT IN THE COMMISSION'S
FINDINGS.  I DO NOT SAY THAT NO THROUGH ROUTES OR JOINT RATES CAN BE
ESTABLISHED THROUGH THE OGDEN GATEWAY.  BUT I DO BELIEVE THAT IT IS
NEITHER FOR THE DISTRICT COURT NOR FOR THIS COURT TO SPECULATE WHAT THE
COMMISSION WOULD HAVE DONE IF IT WERE REQUIRED TO DISREGARD SOME OF ITS
IMPORTANT VIEWS ON POLICY, AS THIS COURT HAS DISREGARDED THEM.  I ALSO
BELIEVE THAT IT IS NOT OUR DUTY TO FIND REASONS TO SUPPORT THE
COMMISSION'S ORDER WHICH THE COMMISSION ON FULL CONSIDERATION DID NOT
SUMMON TO ITS SUPPORT.  THIS IS A STRIKING INSTANCE OF A CASE REQUIRING
REMAND TO THE COMMISSION FOR CLARIFICATION AND RECONSIDERATION OF THE
BASIS FOR DECISION.  SEE UNITED STATES V. CHICAGO, M., ST. P.&P.R. CO.,
294 U.S. 499, 510-511. 

MR. JUSTICE HARLAN, DISSENTING. 

I AGREE WITH THE OPINION OF MR. JUSTICE FRANKFURTER, EXCEPT THAT I
WOULD CONSIDER AN ORDER OF THE COMMISSION LIMITED TO ESTABLISHING
THROUGH ROUTES AND JOINT RATES ON SHIPMENTS DESTINED INITIALLY TO
INTERMEDIATE POINTS ON THE RIO GRANDE TO BE SUPPORTED BY THE PRESENT
FINDINGS.  ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE NEBRASKA
DISTRICT COURT, WHICH REMANDED THE CASE TO THE COMMISSION TO ALLOW IT
TO DETERMINE WHETHER SUCH A LIMITED ORDER WOULD BE IN THE PUBLIC
INTEREST AND FOR ANY FURTHER PROCEEDINGS NOT INCONSISTENT WITH ITS
OPINION. 
..END :

















JAY V. BOYD 351 U.S. 345 


NO. 503.  ARGUED MAY 3, 1956.  - DECIDED JUNE 11, 1956.  - 222 F.2D 820,
224 F.2D 957, AFFIRMED. 


AN ALIEN, WHOSE DEPORTATION HAD BEEN ORDERED BECAUSE ADMITTEDLY, AFTER
ENTRY, HE HAD BEEN A MEMBER OF THE COMMUNIST PARTY FROM 1935 THROUGH
1940, APPLIED FOR SUSPENSION OF HIS DEPORTATION UNDER SEC. 244 OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, WHICH AUTHORIZES THE ATTORNEY
GENERAL, "IN HIS DISCRETION," TO SUSPEND DEPORTATION OF ANY DEPORTABLE
ALIEN WHO MEETS CERTAIN STATUTORY REQUIREMENTS RELATING TO MORAL
CHARACTER, HARDSHIP AND PERIOD OF RESIDENCE IN THE UNITED STATES. 
AFTER ADMINISTRATIVE HEARINGS NOT EXPRESSLY REQUIRED BY STATUTE BUT
AUTHORIZED BY REGULATIONS OF THE ATTORNEY GENERAL, A SPECIAL INQUIRY
OFFICER FOUND THAT THE ALIEN MET THE STATUTORY PREREQUISITES FOR THE
FAVORABLE EXERCISE OF DISCRETIONARY RELIEF BUT DENIED RELIEF BECAUSE OF
CONFIDENTIAL INFORMATION NOT DISCLOSED TO THE ALIEN.  THE USE OF SUCH
CONFIDENTIAL INFORMATION WITHOUT DISCLOSURE THEREOF TO THE APPLICANT
WAS EXPRESSLY AUTHORIZED BY THE REGULATIONS IF "THE DISCLOSURE OF SUCH
INFORMATION WOULD BE PREJUDICIAL TO THE PUBLIC INTEREST, SAFETY, OR
SECURITY."  HELD:  THE ATTORNEY GENERAL HAS PROPERLY EXERCISED HIS
DISCRETIONARY POWERS UNDER THE STATUTE IN THIS CASE, AND DENIAL OF THE
APPLICATION IS SUSTAINED.  PP. 347-361. 

(A)  UNDER HIS RULEMAKING AUTHORITY AND AS A MATTER OF ADMINISTRATIVE
CONVENIENCE, THE ATTORNEY GENERAL VALIDLY DELEGATED HIS AUTHORITY TO
SPECIAL INQUIRY OFFICERS WITH REVIEW BY THE BOARD OF IMMIGRATION
APPEALS.  P. 351, N. 8. 

(B)  THE REGULATION PERMITTING CONSIDERATION OF CONFIDENTIAL
INFORMATION NOT DISCLOSED TO THE APPLICANT IS NOT INCONSISTENT WITH
SEC. 244(A).  PP. 352-356. 

(C)  SUSPENSION OF DEPORTATION IS NOT A MATTER OF RIGHT BUT A MATTER
OF GRACE, LIKE PROBATION, PAROLE OR SUSPENSION OF SENTENCE, AND THE
APPLICANT IS NOT ENTITLED TO THE KIND OF A HEARING WHICH CONTEMPLATES
FULL DISCLOSURE OF THE CONSIDERATIONS ENTERING INTO AN EXERCISE OF THE
ATTORNEY GENERAL'S DISCRETION.  PP. 354-356. 

(D)  SECTION 244(C), WHICH REQUIRES THE ATTORNEY GENERAL TO FILE WITH
CONGRESS "A COMPLETE AND DETAILED STATEMENT OF THE FACTS" REGARDING
CASES IN WHICH SUSPENSION IS GRANTED, WITH "THE REASONS FOR SUCH
SUSPENSION," IS INAPPLICABLE TO CASES IN WHICH SUSPENSION IS DENIED,
AND IT AFFORDS NO BASIS FOR A CONCLUSION THAT AN APPLICANT MUST BE
APPRISED OF REASONS FOR A DENIAL OF HIS REQUEST FOR SUSPENSION.  P.
356. 

(E)  SECTION 235(C), WHICH SPECIFICALLY AUTHORIZES THE ATTORNEY
GENERAL TO DETERMINE, IN SOME CIRCUMSTANCES, THAT AN ALIEN IS
EXCLUDABLE "ON THE BASIS OF INFORMATION OF A CONFIDENTIAL NATURE," DOES
NOT, BY IMPLICATION, PREVENT THE USE OF CONFIDENTIAL INFORMATION IN
RULINGS UPON APPLICATIONS FOR SUSPENSION OF DEPORTATION.  PP. 356-357. 

(F)  THOUGH IT IS CONTENDED THAT, IN CONSTRUING THE STATUTE, ALL
DOUBTS SHOULD BE RESOLVED IN THE APPLICANT'S FAVOR, BECAUSE THE USE OF
SUCH CONFIDENTIAL INFORMATION IS INCONSISTENT WITH THE "TRADITION AND
PRINCIPLES OF FREE GOVERNMENT" AND DENIAL OF SUSPENSION MAY LEAD TO
SEVERE RESULTS, THIS COURT MUST ADOPT THE PLAIN MEANING OF THIS
STATUTE.  PP. 357-358. 

(G)  AS HERE CONSTRUED, SEC. 244 IS CONSTITUTIONAL.  P. 357, N. 21. 

(H)  THE REGULATION PERMITS THE USE OF UNDISCLOSED CONFIDENTIAL
INFORMATION ONLY WHEN DISCLOSURE "WOULD BE PREJUDICIAL TO THE PUBLIC
INTEREST, SAFETY, OR SECURITY," AND THIS IS A REASONABLE CLASS OF CASES
IN WHICH TO EXERCISE THAT POWER.  P. 358. 

(I)  SINCE THE BOARD OF IMMIGRATION APPEALS, THE DISTRICT COURT AND
THE COURT OF APPEALS CONCLUDED, IN EFFECT, THAT THE SPECIAL INQUIRY
OFFICER FOUND THAT DISCLOSURE OF THE CONFIDENTIAL INFORMATION IN THIS
CASE WOULD HAVE BEEN CONTRARY TO THE PUBLIC INTEREST, SAFETY OR
SECURITY, THIS COURT ACCEPTS THAT FINDING, AND NOTHING MORE IS REQUIRED
BY THE REGULATION.  P. 358, N. 22. 

(J)  IN VIEW OF THE GRATUITOUS NATURE OF THE RELIEF, THE USE OF
CONFIDENTIAL INFORMATION IN A SUSPENSION OF DEPORTATION PROCEEDING IS
MORE CLEARLY WITHIN STATUTORY AUTHORITY THAN THE REGULATIONS SUSTAINED
IN KNAUFF V. SHAUGHNESSY, 338 U.S. 537, AND SHAUGHNESSY V. MEZEI, 345
U.S. 206.  PP. 258-259. 

(K)  THE USE OF UNDISCLOSED CONFIDENTIAL INFORMATION AS A BASIS FOR
DENYING SUSPENSION OF DEPORTATION DID NOT TRANSGRESS ANY OF THE RELATED
REGULATIONS GOVERNING SUSPENSION OF DEPORTATION PROCEEDINGS.  PP. 359
361. 

JAY V. BOYD, DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS HABEAS CORPUS PROCEEDING TO TEST THE VALIDITY
OF THE DENIAL OF HIS APPLICATION UNDER SECS. 244(A)(5) AND 244(C) OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 215, 216, 8
U.S.C. SECS. 1254(A)(5) AND 1254(C), FOR DISCRETIONARY SUSPENSION OF
DEPORTATION.  HE CONTENDS THAT THE DENIAL OF HIS APPLICATION WAS
UNLAWFUL BECAUSE BASED ON CONFIDENTIAL, UNDISCLOSED INFORMATION.  THE
DISTRICT COURT DENIED THE WRIT, HOLDING, SO FAR AS PERTINENT HERE,
THAT, "AFTER COMPLYING WITH ALL THE ESSENTIALS OF DUE PROCESS OF LAW IN
THE DEPORTATION HEARING AND IN THE HEARING TO DETERMINE ELIGIBILITY FOR
SUSPENSION OF DEPORTATION, THE ATTORNEY GENERAL MAY CONSIDER
CONFIDENTIAL INFORMATION OUTSIDE THE RECORD IN FORMULATING HIS
DISCRETIONARY DECISION."  (FN1)  THE COURT OF APPEALS AFFIRMED,
CONCLUDING, INTER ALIA, THAT PETITIONER WAS NOT "DENIED DUE PROCESS OF
LAW IN THE CONSIDERATION OF HIS APPLICATION FOR SUSPENSION OF
DEPORTATION BECAUSE OF THE USE OF THIS CONFIDENTIAL INFORMATION."  222
F.2D 820, 820-821; REHEARING DENIED, 224 F.2D 957.  WE GRANTED
CERTIORARI, 350 U.S. 931, TO CONSIDER THE VALIDITY OF 8 CFR, REV. 1952,
SEC. 244.3, THE ATTORNEY GENERAL'S REGULATION WHICH PROVIDES: 

"SEC. 244.3  USE OF CONFIDENTIAL INFORMATION.  IN THE CASE OF AN
ALIEN QUALIFIED FOR  ... SUSPENSION OF DEPORTATION UNDER SECTION  ...
244 OF THE IMMIGRATION AND NATIONALITY ACT THE DETERMINATION AS TO
WHETHER THE APPLICATION FOR  ...  SUSPENSION OF DEPORTATION SHALL BE
GRANTED OR DENIED (WHETHER SUCH DETERMINATION IS MADE INITIALLY OR ON
APPEAL) MAY BE PREDICATED UPON CONFIDENTIAL INFORMATION WITHOUT THE
DISCLOSURE THEREOF TO THE APPLICANT, IF IN THE OPINION OF THE OFFICER
OR THE BOARD MAKING THE DETERMINATION THE DISCLOSURE OF SUCH
INFORMATION WOULD BE PREJUDICIAL TO THE PUBLIC INTEREST, SAFETY, OR
SECURITY." 

FOLLOWING A HEARING, THE FAIRNESS OF WHICH IS UNCHALLENGED,
PETITIONER WAS ORDERED DEPORTED IN 1952 PURSUANT TO 8 U.S.C. (1946 ED.,
SUPP. V) SEC. 137-3.  THAT SECTION PROVIDED FOR THE DEPORTATION OF ANY
ALIEN "WHO WAS AT THE TIME OF ENTERING THE UNITED STATES, OR HAS BEEN
AT ANY TIME THEREAFTER," A MEMBER OF THE COMMUNIST PARTY OF THE UNITED
STATES.  (FN2)  PETITIONER, A CITIZEN OF GREAT BRITAIN, LAST ENTERED
THE UNITED STATES IN 1921.  AT THE DEPORTATION HEARING HE ADMITTED
HAVING BEEN A VOLUNTARY MEMBER OF THE COMMUNIST PARTY FROM 1935 THROUGH
1940.  HE ATTACKED THE VALIDITY OF THE DEPORTATION ORDER IN THE COURTS
BELOW ON THE GROUND THAT THERE IS "NO LAWFUL POWER ...  UNDER THE
CONSTITUTION OR LAWS OF THE UNITED STATES" TO DEPORT ONE WHO HAS "AT NO
TIME VIOLATED ANY CONDITION IMPOSED AT THE TIME OF HIS ENTRY."  BUT
THAT POINT HAS BEEN ABANDONED, AND IN THIS COURT PETITIONER IN EFFECT
CONCEDES THAT HE IS DEPORTABLE.  SEE GALVAN V. PRESS, 347 U.S. 522;
HARISIADES V. SHAUGHNESSY, 342 U.S. 580. 

IN 1953, UPON MOTION OF PETITIONER, THE DEPORTATION ORDER WAS
WITHDRAWN FOR THE PURPOSE OF ALLOWING PETITIONER TO SEEK DISCRETIONARY
RELIEF FROM THE ATTORNEY GENERAL UNDER SEC. 244(A)(5) OF THE ACT.  THE
APPLICATION FOR SUSPENSION OF DEPORTATION WAS FILED AND A HEARING
THEREON WAS HELD BEFORE A SPECIAL INQUIRY OFFICER OF THE IMMIGRATION
AND NATURALIZATION SERVICE.  (FN3)  THE SPECIAL INQUIRY OFFICER FOUND
PETITIONER TO BE QUALIFIED FOR SUSPENSION OF DEPORTATION (FN4) - THAT
IS, FOUND THAT PETITIONER MET THE STATUTORY PREREQUISITES TO THE
FAVORABLE EXERCISE OF THE DISCRETIONARY RELIEF.  (FN5)  BUT THE SPECIAL
INQUIRY OFFICER DECIDED THE CASE FOR SUSPENSION DID NOT "WARRANT
FAVORABLE ACTION" IN VIEW OF CERTAIN "CONFIDENTIAL INFORMATION."  (FN6)
THE BOARD OF IMMIGRATION APPEALS DISMISSED AN APPEAL, BASING ITS
DECISION "UPON A FULL CONSIDERATION OF THE EVIDENCE OF RECORD AND IN
LIGHT OF THE CONFIDENTIAL INFORMATION AVAILABLE."  (FN7)  THUS, THE
BOARD IN CONSIDERING THE APPEAL REVIEWED THE UNDISCLOSED INFORMATION AS
WELL AS THE EVIDENCE ON THE OPEN RECORD.  PETITIONER THEN COMMENCED THE
PRESENT HABEAS CORPUS ACTION. 

AS PREVIOUSLY NOTED, SEC. 244(A)(5) OF THE ACT PROVIDES THAT THE
ATTORNEY GENERAL "MAY, IN HIS DISCRETION" SUSPEND DEPORTATION OF ANY
DEPORTABLE ALIEN WHO MEETS CERTAIN STATUTORY REQUIREMENTS RELATING TO
MORAL CHARACTER, HARDSHIP AND PERIOD OF RESIDENCE WITHIN THE UNITED
STATES.  IF THE ATTORNEY GENERAL DOES SUSPEND DEPORTATION UNDER THAT
PROVISION, HE MUST FILE PURSUANT TO SEC. 244(C), "A COMPLETE AND
DETAILED STATEMENT OF THE FACTS AND PERTINENT PROVISIONS OF LAW IN THE
CASE" WITH CONGRESS, GIVING "THE REASONS FOR SUCH SUSPENSION."  SO FAR
AS PERTINENT HERE, DEPORTATION FINALLY CANCELS ONLY IF CONGRESS
AFFIRMATIVELY APPROVES THE SUSPENSION BY A FAVORABLE CONCURRENT
RESOLUTION WITHIN A SPECIFIED PERIOD OF TIME.  THERE IS NO EXPRESS
STATUTORY GRANT OF ANY RIGHT TO A HEARING ON AN APPLICATION TO THE
ATTORNEY GENERAL FOR DISCRETIONARY SUSPENSION OF DEPORTATION.  FOR
PURPOSES OF EFFECTUATING THESE STATUTORY PROVISIONS, THE ATTORNEY
GENERAL ADOPTED REGULATIONS DELEGATING HIS AUTHORITY UNDER SEC. 244 OF
THE ACT TO SPECIAL INQUIRY OFFICERS; (FN8) GIVING THE ALIEN THE RIGHT
TO APPLY FOR SUSPENSION DURING A DEPORTATION HEARING; (FN9) PUTTING THE
BURDEN ON THE APPLICANT TO ESTABLISH THE STATUTORY REQUIREMENTS FOR
ELIGIBILITY FOR SUSPENSION; (FN10) ALLOWING THE ALIEN-APPLICANT TO
SUBMIT ANY EVIDENCE IN SUPPORT OF HIS APPLICATION; (FN11) REQUIRING THE
SPECIAL INQUIRY OFFICER TO PRESENT EVIDENCE BEARING ON THE APPLICANT'S
ELIGIBILITY FOR RELIEF; (FN12) AND REQUIRING A "WRITTEN DECISION" WITH
"A DISCUSSION OF THE EVIDENCE RELATING TO THE ALIEN'S ELIGIBILITY FOR
SUCH RELIEF AND THE REASONS FOR GRANTING OR DENYING SUCH APPLICATION." 
(FN13)  THE ATTORNEY GENERAL ALSO PROMULGATED THE REGULATION UNDER
ATTACK HERE, 8 CFR, REV. 1952, SEC. 244.3, SEE PP. 347-348, SUPRA,
PROVIDING FOR THE USE BY SPECIAL INQUIRY OFFICERS AND THE BOARD OF
IMMIGRATION APPEALS OF CONFIDENTIAL INFORMATION IN RULING UPON
SUSPENSION APPLICATIONS IF DISCLOSURE OF THE INFORMATION WOULD BE
PREJUDICIAL TO THE PUBLIC INTEREST, SAFETY OR SECURITY. 

WE NOTE THAT PETITIONER DOES NOT SUGGEST THAT HE DID NOT RECEIVE A
FULL AND FAIR HEARING ON EVIDENCE OF RECORD WITH RESPECT TO HIS
STATUTORY ELIGIBILITY FOR SUSPENSION OF DEPORTATION.  IN FACT,
PETITIONER RECOGNIZES THAT THE SPECIAL INQUIRY OFFICER FOUND IN HIS
FAVOR ON ALL ISSUES RELATING TO ELIGIBILITY FOR THE DISCRETIONARY
RELIEF AND THAT THOSE FINDINGS WERE ADOPTED BY THE BOARD OF IMMIGRATION
APPEALS.  (FN14)  THIS FAVORABLY DISPOSED OF PETITIONER'S ELIGIBILITY
FOR CONSIDERATION FOR SUSPENSION OF DEPORTATION - THE FIRST STEP IN THE
SUSPENSION PROCEDURE.  THUS, WE HAVE HERE THE CASE OF AN ADMITTEDLY
DEPORTABLE ALIEN WHO HAS BEEN ORDERED DEPORTED FOLLOWING AN
UNCHALLENGED HEARING, AND WHO HAS BEEN ACCORDED ANOTHER FULL AND FAIR
HEARING ON THE ISSUES RESPECTING HIS STATUTORY QUALIFICATIONS FOR
DISCRETIONARY SUSPENSION OF DEPORTATION. 

IT IS URGED UPON THE COURT THAT THE CONFIDENTIAL INFORMATION
REGULATION IS INVALID BECAUSE INCONSISTENT WITH SEC. 244 OF THE ACT. 
IN SUPPORT OF THIS CLAIM, PETITIONER ARGUES THAT SEC. 244 IMPLICITLY
REQUIRES THE ATTORNEY GENERAL TO GIVE A HEARING ON APPLICATIONS FOR
SUSPENSION OF DEPORTATION.  IT IS THEN SAID THAT THIS STATUTORY RIGHT
IS NULLIFIED AND RENDERED ILLUSORY BY THE CHALLENGED REGULATION, AND
THAT THEREFORE THE REGULATION IS INVALID.  BUT THERE IS NOTHING IN THE
LANGUAGE OF SEC. 244 OF THE ACT UPON WHICH TO BASE A BELIEF THAT THE
ATTORNEY GENERAL IS REQUIRED TO GIVE A HEARING WITH ALL THE EVIDENCE
SPREAD UPON AN OPEN RECORD WITH RESPECT TO THE CONSIDERATIONS WHICH MAY
BEAR UPON HIS GRANT OR DENIAL OF AN APPLICATION FOR SUSPENSION TO AN
ALIEN ELIGIBLE FOR THAT RELIEF.  ASSUMING THAT THE STATUTE IMPLICITLY
REQUIRES A HEARING ON AN OPEN RECORD AS TO THE SPECIFIED STATUTORY
PREREQUISITES TO FAVORABLE ACTION, THERE IS NO CLAIM HERE OF A DENIAL
OF SUCH A HEARING ON THOSE ISSUES.  MOREOVER, THOUGH WE ASSUME A
STATUTORY RIGHT TO A FULL HEARING ON THOSE ISSUES, IT DOES NOT FOLLOW
THAT SUCH A RIGHT EXISTS ON THE ULTIMATE DECISION - THE EXERCISE OF
DISCRETION TO SUSPEND DEPORTATION. 

ELIGIBILITY FOR THE RELIEF HERE INVOLVED IS GOVERNED BY SPECIFIC
STATUTORY STANDARDS WHICH PROVIDE A RIGHT TO A RULING ON AN APPLICANT'S
ELIGIBILITY.  HOWEVER, CONGRESS DID NOT PROVIDE STATUTORY STANDARDS FOR
DETERMINING WHO, AMONG QUALIFIED APPLICANTS FOR SUSPENSION, SHOULD
RECEIVE THE ULTIMATE RELIEF.  THAT DETERMINATION IS LEFT TO THE SOUND
DISCRETION OF THE ATTORNEY GENERAL.  THE STATUTE SAYS THAT, AS TO
QUALIFIED DEPORTABLE ALIENS, THE ATTORNEY GENERAL "MAY, IN HIS
DISCRETION" SUSPEND DEPORTATION.  (FN15)  IT DOES NOT RESTRICT THE
CONSIDERATIONS WHICH MAY BE RELIED UPON OR THE PROCEDURE BY WHICH THE
DISCRETION SHOULD BE EXERCISED.  ALTHOUGH SUCH ALIENS HAVE BEEN GIVEN A
RIGHT TO A DISCRETIONARY DETERMINATION ON AN APPLICATION FOR
SUSPENSION, CF. ACCARDI V. SHAUGHNESSY, 347 U.S. 260, A GRANT THEREOF
IS MANIFESTLY NOT A MATTER OF RIGHT UNDER ANY CIRCUMSTANCES, BUT RATHER
IS IN ALL CASES A MATTER OF GRACE.  LIKE PROBATION OR SUSPENSION OF
CRIMINAL SENTENCE, IT "COMES AS AN ACT OF GRACE," ESCOE V. ZERBST, 295
U.S. 490, 492, AND "CANNOT BE DEMANDED AS A RIGHT," BERMAN V. UNITED
STATES, 302 U.S. 211, 213.  (FN16)  AND THIS UNFETTERED DISCRETION OF
THE ATTORNEY GENERAL WITH RESPECT TO SUSPENSION OF DEPORTATION IS
ANALOGOUS TO THE BOARD OF PAROLE'S POWERS TO RELEASE FEDERAL PRISONERS
ON PAROLE.  (FN17)  EVEN IF WE ASSUME THAT CONGRESS HAS GIVEN TO
QUALIFIED APPLICANTS FOR SUSPENSION OF DEPORTATION A RIGHT TO OFFER
EVIDENCE TO THE ATTORNEY GENERAL IN SUPPORT OF THEIR APPLICATIONS, THE
SIMILARITY BETWEEN THE DISCRETIONARY POWERS VESTED IN THE ATTORNEY
GENERAL BY SEC. 244(A) OF THE ACT ON THE ONE HAND, AND JUDICIAL
PROBATION POWER AND EXECUTIVE PAROLE POWER ON THE OTHER HAND, LEADS TO
A CONCLUSION THAT SEC. 244 GIVES NO RIGHT TO THE KIND OF A HEARING ON A
SUSPENSION APPLICATION WHICH CONTEMPLATES FULL DISCLOSURE OF THE
CONSIDERATIONS ENTERING INTO A DECISION.  CLEARLY THERE IS NO STATUTORY
RIGHT TO THAT KIND OF A HEARING ON A REQUEST FOR A GRANT OF PROBATION
AFTER CRIMINAL CONVICTION IN THE FEDERAL COURTS.  (FN18)  NOR IS THERE
SUCH A RIGHT WITH RESPECT TO AN APPLICATION FOR PAROLE.  (FN19)  SINCE,
AS WE HOLD, THE ATTORNEY GENERAL'S DISCRETION IS NOT LIMITED BY THE
SUGGESTED HEARING REQUIREMENT, THE CHALLENGED REGULATION CANNOT BE SAID
TO BE INCONSISTENT WITH SEC. 244(A) OF THE ACT. 

PETITIONER SAYS THAT A HEARING REQUIREMENT, WITH A CONSEQUENT
DISCLOSURE OF ALL CONSIDERATIONS GOING INTO A DECISION, IS MADE
IMPLICIT BY SEC. 244(C) IF NOT BY SEC. 244(A).  SECTION 244(C), IT WILL
BE RECALLED, REQUIRES THE ATTORNEY GENERAL TO FILE WITH CONGRESS "A
COMPLETE AND DETAILED STATEMENT OF THE FACTS" AS TO CASES IN WHICH
SUSPENSION IS GRANTED, "WITH REASONS FOR SUCH SUSPENSION."  THIS
STATUTORY MANDATE DOES NOT, HOWEVER, ORDER SUCH A REPORT ON CASES IN
WHICH SUSPENSION IS DENIED.  SECTION 244(C) ACTUALLY EMPHASIZES THE
FACT THAT SUSPENSION IS NOT A MATTER OF RIGHT.  CONGRESS WAS INTERESTED
IN LIMITING GRANTS OF THIS RELIEF TO THE MINIMUM.  IT EVIDENCED AN
INTEREST ONLY IN THE REASONS RELIED UPON BY THE ATTORNEY GENERAL FOR
GRANTING AN APPLICATION SO THAT IT COULD HAVE AN OPPORTUNITY TO ACCEPT
OR REJECT FAVORABLE ADMINISTRATIVE DECISIONS.  THIS IN NO WAY SUGGESTS
THAT THE APPLICANT IS TO BE APPRISED OF THE REASONS FOR A DENIAL OF HIS
REQUEST FOR SUSPENSION. 

PETITIONER ALSO POINTS TO SEC. 235(C) OF THE ACT, 8 U.S.C. SEC.
1225(C), WHICH SPECIFICALLY AUTHORIZES THE ATTORNEY GENERAL TO
DETERMINE UNDER SOME CIRCUMSTANCES THAT AN ALIEN IS EXCLUDABLE "ON THE
BASIS OF INFORMATION OF A CONFIDENTIAL NATURE."  (FN20)  IT IS ARGUED
FROM THIS THAT HAD CONGRESS INTENDED TO PERMIT THE USE OF CONFIDENTIAL
INFORMATION IN RULINGS UPON APPLICATIONS FOR SUSPENSION OF DEPORTATION,
IT WOULD HAVE EXPRESSLY SO PROVIDED IN LANGUAGE AS SPECIFIC AS THAT
USED IN SEC. 235(C).  THE DIFFICULTY WITH THIS ARGUMENT IS THAT SEC.
235(C) IS AN EXCEPTION TO AN EXPRESS STATUTORY MANDATE UNDER SEC.
236(A) OF THE ACT, 8 U.S.C. SEC. 1226(A), THAT DETERMINATIONS OF
ADMISSIBILITY BE "BASED ONLY ON THE EVIDENCE PRODUCED AT THE INQUIRY." 
NO SUCH EXPRESS MANDATE EXISTS WITH RESPECT TO SUSPENSION OF
DEPORTATION, AND, THEREFORE, NO SPECIFIC PROVISION FOR THE USE OF
CONFIDENTIAL INFORMATION WAS NEEDED IF NORMALLY CONTEMPLATED BY THE
BROAD GRANT OF DISCRETIONARY POWER TO THE ATTORNEY GENERAL. 

IT IS NEXT ARGUED THAT, EVEN IF THE CONFIDENTIAL INFORMATION
REGULATION IS NOT INCONSISTENT WITH SEC. 244(A), IT NEVERTHELESS SHOULD
BE HELD INVALID.  EMPHASIZING THAT CONGRESS DID NOT IN TERMS AUTHORIZE
SUCH A PROCEDURE, PETITIONER CONTENDS THAT THE ACT SHOULD BE CONSTRUED
TO PROVIDE A RIGHT TO A HEARING BECAUSE ONLY SUCH A CONSTRUCTION WOULD
BE CONSISTENT WITH THE "TRADITION AND PRINCIPLES OF FREE GOVERNMENT." 
(FN21)  ON ITS FACE THIS IS AN ATTRACTIVE ARGUMENT.  PETITIONER URGES
THAT, IN VIEW OF THE SEVERITY OF THE RESULT FLOWING FROM A DENIAL OF
SUSPENSION OF DEPORTATION, WE SHOULD INTERPRET THE STATUTE BY RESOLVING
ALL DOUBTS IN THE APPLICANT'S FAVOR.  CF. UNITED STATES V. MINKER, 350
U.S. 179, 187-188.  BUT WE MUST ADOPT THE PLAIN MEANING OF A STATUTE,
HOWEVER SEVERE THE CONSEQUENCES.  CF. GALVAN V. PRESS, 347 U.S. 522,
528.  AS WE HAVE ALREADY STATED, SUSPENSION OF DEPORTATION IS NOT GIVEN
TO DEPORTABLE ALIENS AS A RIGHT, BUT, BY CONGRESSIONAL DIRECTION, IT IS
DISPENSED ACCORDING TO THE UNFETTERED DISCRETION OF THE ATTORNEY
GENERAL.  IN THE FACE OF SUCH A COMBINATION OF FACTORS WE ARE
CONSTRAINED TO CONSTRUE THE STATUTE AS PERMITTING DECISIONS BASED UPON
MATTERS OUTSIDE THE ADMINISTRATIVE RECORD, AT LEAST WHEN SUCH ACTION
WOULD BE REASONABLE.    IT MAY BE THAT SEC. 244(A) CANNOT BE
INTERPRETED AS ALLOWING A DECISION BASED ON UNDISCLOSED INFORMATION IN
EVERY CASE INVOLVING A DEPORTABLE ALIEN QUALIFIED FOR SUSPENSION. 
THUS, IT COULD BE ARGUED THAT, WHERE THERE IS NO COMPELLING REASON TO
REFUSE TO DISCLOSE THE BASIS OF A DENIAL OF AN APPLICATION, THE STATUTE
DOES NOT CONTEMPLATE ARBITRARY SECRECY.  HOWEVER, THE REGULATION UNDER
ATTACK HERE LIMITS THE USE OF CONFIDENTIAL INFORMATION TO INSTANCES
WHERE, IN THE OPINION OF THE SPECIAL INQUIRY OFFICER OR THE BOARD OF
IMMIGRATION APPEALS, "THE DISCLOSURE  ...  WOULD BE PREJUDICIAL TO THE
PUBLIC INTEREST, SAFETY, OR SECURITY."  IF THE STATUTE PERMITS ANY
WITHHOLDING OF INFORMATION FROM THE ALIEN, MANIFESTLY THIS IS A
REASONABLE CLASS OF CASES IN WHICH TO EXERCISE THAT POWER.  (FN22) 

OUR CONCLUSION IN THIS CASE IS STRONGLY SUPPORTED BY PRIOR DECISIONS
OF THIS COURT.  IN BOTH KNAUFF V. SHAUGHNESSY, 338 U.S. 537, AND
SHAUGHNESSY V. MEZEI, 345 U.S. 206, WE UPHELD A REGULATION OF THE
ATTORNEY GENERAL CALLING FOR THE DENIAL OF A HEARING IN EXCLUSION CASES
WHERE THE ATTORNEY GENERAL DETERMINED THAT AN ALIEN WAS EXCLUDABLE ON
THE BASIS OF CONFIDENTIAL INFORMATION, AND WHERE, AS HERE, THE
DISCLOSURE OF THAT INFORMATION WOULD BE PREJUDICIAL TO THE PUBLIC
INTEREST.  (FN23) AND AGAIN, AS HERE, THE STATUTES INVOLVED IN THOSE
CASES DID NOT EXPRESSLY AUTHORIZE THE USE OF SUCH INFORMATION IN MAKING
THE ADMINISTRATIVE RULING.  IT IS TRUE THAT A RESIDENT ALIEN IN A
DEPORTATION PROCEEDING HAS CONSTITUTIONAL PROTECTIONS UNAVAILABLE TO A
NONRESIDENT ALIEN SEEKING ENTRY INTO THE UNITED STATES, AND THAT THOSE
PROTECTIONS MAY MILITATE AGAINST CONSTRUING AN AMBIGUOUS STATUTE AS
AUTHORIZING THE USE OF CONFIDENTIAL INFORMATION IN A DEPORTATION
PROCEEDING.  CF. KWONG HAI CHEW V. COLDING, 344 U.S. 590.  BUT THE
ISSUE INVOLVED HERE UNDER SEC. 244(A) IS NOT WHETHER AN ALIEN IS
DEPORTABLE, BUT WHETHER, AS A DEPORTABLE ALIEN WHO IS QUALIFIED FOR
SUSPENSION OF DEPORTATION, HE SHOULD BE GRANTED SUCH SUSPENSION.  IN
VIEW OF THE GRATUITOUS NATURE OF THE RELIEF, THE USE OF CONFIDENTIAL
INFORMATION IN A SUSPENSION PROCEEDING IS MORE CLEARLY WITHIN STATUTORY
AUTHORITY THAN WERE THE REGULATIONS INVOLVED IN THE KNAUFF AND MEZEI
CASES. 

CONCLUDING THAT THE CHALLENGED REGULATION IS NOT INCONSISTENT WITH
THE ACT, WE MUST LOOK TO PETITIONER'S CLAIM THAT THE USE OF UNDISCLOSED
CONFIDENTIAL INFORMATION IS UNLAWFUL BECAUSE INCONSISTENT WITH RELATED
REGULATIONS GOVERNING SUSPENSION OF DEPORTATION PROCEDURES.  AS
PREVIOUSLY NOTED, AN APPLICATION FOR SUSPENSION IS CONSIDERED AS PART
OF THE "HEARING" TO DETERMINE DEPORTABILITY.  8 CFR, REV. 1952, SECS.
242.53(C) AND 242.54(D); AND SEE 8 CFR, REV. 1952, SEC. 242.5.  THE
ALIEN IS ENTITLED TO "SUBMIT ANY EVIDENCE IN SUPPORT OF HIS APPLICATION
WHICH HE BELIEVES SHOULD BE CONSIDERED BY THE SPECIAL INQUIRY
OFFICER."  8 CFR, REV. 1952, SEC. 242.54(D).  THE HEARING TO DETERMINE
DEPORTABILITY, DURING WHICH THE SUSPENSION APPLICATION IS CONSIDERED,
IS TO BE A "FAIR AND IMPARTIAL HEARING."  8 CFR, REV. 1952, SEC.
242.53(B).  AND A DECISION OF THE SPECIAL INQUIRY OFFICER ON THE
REQUEST FOR SUSPENSION MUST CONTAIN "THE REASONS FOR GRANTING OR
DENYING SUCH APPLICATION."  8 CFR, REV.  1952, SEC. 242.61(A). 

WE CONCLUDE THAT, ALTHOUGH UNDISCLOSED INFORMATION WAS USED AS A
BASIS FOR DENYING SUSPENSION OF DEPORTATION, NONE OF THE ABOVE
MENTIONED REGULATIONS WAS TRANSGRESSED.  WHILE AN APPLICANT FOR
SUSPENSION IS, BY REGULATION, ENTITLED TO "SUBMIT ANY EVIDENCE IN
SUPPORT OF HIS APPLICATION," THAT IS MERELY A PROVISION PERMITTING AN
EVIDENTIARY PLEA TO THE DISCRETION OF THOSE WHO ARE TO MAKE THE
DECISION.  IN THIS RESPECT IT IS NOT UNLIKE THE "STATEMENT" AND THE
OPPORTUNITY TO PRESENT "INFORMATION IN MITIGATION OF PUNISHMENT" TO
WHICH A CONVICTED DEFENDANT IS ENTITLED UNDER RULE 32(A) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE BEFORE CRIMINAL SENTENCE IS IMPOSED. 
(FN24)  AND THE SITUATION IS NOT DIFFERENT BECAUSE THE MATTER OF
SUSPENSION OF DEPORTATION IS TAKEN UP IN THE "FAIR AND IMPARTIAL"
DEPORTATION "HEARING."  ASSUMING THAT SUCH A "HEARING" NORMALLY
PRECLUDES THE USE OF UNDISCLOSED INFORMATION, THE "HEARING" HERE
INVOLVED NECESSARILY CONTEMPLATES THE USE OF CONFIDENTIAL MATTER IN
SOME CIRCUMSTANCES.  WE MUST READ THE BODY OF REGULATIONS GOVERNING
SUSPENSION PROCEDURES SO AS TO GIVE EFFECT, IF POSSIBLE, TO ALL OF ITS
PROVISIONS.  CF. LAWSON V. SUWANNEE FRUIT & S.S.  CO., 336 U.S. 198. 

THIS SAME RATIONALE LEADS US TO CONCLUDE THAT THE REQUIREMENT OF A
DECISION CONTAINING "REASONS" IS FULLY COMPLIED WITH BY A STATEMENT TO
THE EFFECT THAT THE APPLICATION HAS BEEN DENIED ON THE BASIS OF
CONFIDENTIAL INFORMATION, THE DISCLOSURE OF WHICH WOULD BE PREJUDICIAL
TO THE PUBLIC INTEREST, SAFETY OR SECURITY.  SECTION 244.3 SAYS THAT
SUCH INFORMATION MAY BE USED "WITHOUT THE DISCLOSURE THEREOF TO THE
APPLICANT."  READING THE PROVISION FOR A STATEMENT OF THE "REASONS" FOR
A DECISION IN THE LIGHT OF SEC. 244.3, IT FOLLOWS THAT EXPRESS RELIANCE
ON CONFIDENTIAL INFORMATION CONSTITUTES A STATEMENT OF THE "REASONS"
FOR A DENIAL OF SUSPENSION WITHIN THE MEANING OF SEC. 242.61(A).  IF
"REASONS" MUST BE DISCLOSED BUT CONFIDENTIAL INFORMATION NEED NOT BE,
THE FORMER MANDATE, WHICH CERTAINLY COMPREHENDS THE LATTER PROVISION,
MUST BE SATISFIED BY AN EXPRESS INVOCATION OF THE LATTER PROVISION. 

CONGRESS HAS PROVIDED A GENERAL PLAN DEALING WITH THE DEPORTATION OF
THOSE ALIENS WHO HAVE NOT OBTAINED CITIZENSHIP ALTHOUGH ADMITTED TO
RESIDENCE.  SINCE IT COULD NOT READILY MAKE EXCEPTION FOR CASES OF
UNUSUAL HARDSHIP OR EXTENUATING CIRCUMSTANCES, THOSE MATTERS WERE LEFT
TO THE CONSIDERATION AND DISCRETION OF THE ATTORNEY GENERAL.  WE HOLD
THAT IN THIS CASE THE ATTORNEY GENERAL HAS PROPERLY EXERCISED HIS
POWERS UNDER THE SUSPENSION STATUTE AND WE AFFIRM THE JUDGMENT BELOW. 
IT IS SO ORDERED. 

FN1  THE DISTRICT JUDGE WROTE NO OPINION.  THE QUOTE IS TAKEN FROM
THE FINDINGS OF FACT AND CONCLUSIONS OF LAW, RECORD 15, 17-18. 

FN2  A SIMILAR PROVISION IS NOW CONTAINED IN 18 U.S.C. SEC.
1251(A)(6)(C). 

FN3  "IN DETERMINING CASES SUBMITTED FOR HEARING, SPECIAL INQUIRY
OFFICERS SHALL EXERCISE  ... THE AUTHORITY CONTAINED IN SECTION 244 OF
THE IMMIGRATION AND NATIONALITY ACT TO SUSPEND DEPORTATION."  8 CFR,
REV. 1952, SEC. 242.6. 

FN4  THE FINDING WAS: 

"AS THE RESPONDENT HAS NOT BEEN FOUND TO HAVE BEEN A COMMUNIST PARTY
MEMBER LATER THAN 1940, IT FOLLOWS THAT MORE THAN TEN YEARS HAS ELAPSED
SINCE THE ASSUMPTION OF THE STATUS WHICH CONSTITUTES THE GROUND FOR HIS
DEPORTATION.  EVIDENCE OF RECORD, CONSISTING OF AFFIDAVITS OF PERSONS
WELL ACQUAINTED WITH THE RESPONDENT, TOGETHER WITH EMPLOYMENT RECORDS,
AS WELL AS A REPORT OF AN INVESTIGATION BY THIS SERVICE, SATISFACTORILY
ESTABLISHES THAT HE HAS BEEN PHYSICALLY PRESENT IN THE UNITED STATES
FOR A CONTINUOUS PERIOD OF NOT LESS THAN TEN YEARS LAST PAST.  A CHECK
OF THE LOCAL AND FEDERAL RECORDS REVEAL NO CRIMINAL RECORD.  AN
INDEPENDENT CHARACTER INVESTIGATION, AS WELL AS THE ABOVE RELATED
AFFIDAVITS TEND TO ESTABLISH THAT FOR THE TEN YEARS IMMEDIATELY
PRECEDING HIS APPLICATION FOR RELIEF, HE HAS BEEN A PERSON OF GOOD
MORAL CHARACTER. 

"  ...  HE HAS STATED THAT IF HE WERE DEPORTED HE WOULD SUFFER
EXTREME AND UNUSUAL HARDSHIP IN THAT HE WOULD BE SEPARATED FROM
RELATIVES AND FRIENDS, AND IN EFFECT THAT HE WOULD FIND IT ALMOST
IMPOSSIBLE TO MAINTAIN HIMSELF BECAUSE OF LACK OF FUNDS.  ON THE
RECORD, RESPONDENT APPEARS TO BE QUALIFIED FOR SUSPENSION OF
DEPORTATION." 

FN5  SECTION 244(A)(5) OF THE ACT PROVIDES IN PERTINENT PART THAT
"THE ATTORNEY GENERAL MAY, IN HIS DISCRETION, SUSPEND DEPORTATION" IN
THE CASE OF A DEPORTABLE ALIEN WHO (1) HAS BEEN PRESENT IN THE UNITED
STATES FOR AT LEAST TEN YEARS SINCE THE GROUND FOR HIS DEPORTATION
AROSE; (2) "PROVES THAT DURING ALL OF SUCH PERIOD HE WAS AND IS A
PERSON OF GOOD MORAL CHARACTER"; AND (3) IS ONE "WHOSE DEPORTATION
WOULD, IN THE OPINION OF THE ATTORNEY GENERAL, RESULT IN EXCEPTIONAL
AND EXTREMELY UNUSUAL HARDSHIP." 

FN6  IN HIS PETITION FOR A WRIT OF HABEAS CORPUS PETITIONER ALLEGED,
"UPON INFORMATION AND BELIEF," THAT THE "CONFIDENTIAL INFORMATION"
CONSIDERED BY THE SPECIAL INQUIRY OFFICER, AND LATER BY THE BOARD OF
IMMIGRATION APPEALS, WAS NOTHING MORE THAN THE FACT THAT PETITIONER'S
NAME HAD APPEARED ON A LIST CIRCULATED BY THE AMERICAN COMMITTEE FOR
THE PROTECTION OF THE FOREIGN BORN, AN ORGANIZATION WHICH HAD BEEN
DESIGNATED SUBVERSIVE BY THE ATTORNEY GENERAL, EX PARTE.  PETITIONER
CLAIMED THAT "SOLELY BY REASON OF HIS NAME APPEARING ON SAID LIST, HIS
CASE FOR DISCRETIONARY RELIEF WAS PREJUDGED AND NO FAIR OR IMPARTIAL
CONSIDERATION OF HIS CASE WAS GIVEN  ...  ."  IN ITS RETURN TO THE
ORDER TO SHOW CAUSE, THE GOVERNMENT DENIED THAT THE CONFIDENTIAL
INFORMATION RELIED UPON WAS AS ALLEGED BY PETITIONER, AND DENIED THAT
THE CASE HAD BEEN PREJUDGED.  THE DISTRICT COURT MADE NO SPECIFIC
FINDING WITH RESPECT TO THE CHARACTER OR SUBSTANCE OF THE CONFIDENTIAL
INFORMATION, BUT IT DID DETERMINE THAT THE SPECIAL INQUIRY OFFICER AND
THE BOARD OF IMMIGRATION APPEALS "EXERCISED THEIR INDEPENDENT JUDGMENT
IN DENYING DISCRETIONARY RELIEF."  SEE ACCARDI V. SHAUGHNESSY, 347 U.S.
260, 349 U.S. 280; MARCELLO V. BONDS, 349 U.S. 302. 

PETITIONER APPARENTLY ABANDONED THIS ALLEGATION AND ARGUMENT IN THE
COURT OF APPEALS.  IN HIS PETITION FOR A WRIT OF CERTIORARI IN THIS
COURT, HE INDIRECTLY RAISES THE POINT AGAIN BY CLAIMING TO BE "ENTITLED
TO A JUDICIAL HEARING UPON  ...  HIS ALLEGATION OF FACT IN HABEAS
CORPUS PROCEEDINGS THAT THE UNDISCLOSED AND SO-CALLED CONFIDENTIAL
MATTER  ...  WAS OF SUCH A CHARACTER THAT ITS CONSIDERATION WAS NOT
AUTHORIZED BY APPLICABLE REGULATIONS ESTABLISHED BY THE ATTORNEY
GENERAL."  HOWEVER, PETITIONER MADE NO DIRECT ASSERTION IN THIS COURT
WITH RESPECT TO PREJUDGMENT.  IN THIS STATE OF THE RECORD WE CONCLUDE
THAT THERE IS NO CLAIM OF PREJUDGMENT BEFORE THIS COURT.  SEE N. 22,
INFRA. 

FN7  NO FURTHER ADMINISTRATIVE APPEAL WAS THEN AVAILABLE TO
PETITIONER.  SEE 8 CFR, REV.  1952, SECS. 242.61(E), 6.1(B)(2),
6.1(H)(1). 

FN8  8 CFR, REV. 1952, SEC. 242.6 QUOTED IN PART AT NOTE 3, SUPRA.
PETITIONER DOES NOT SUGGEST, NOR CAN WE CONCLUDE, THAT CONGRESS
EXPECTED THE ATTORNEY GENERAL TO EXERCISE HIS DISCRETION IN SUSPENSION
CASES PERSONALLY.  THERE IS NO DOUBT BUT THAT THE DISCRETION WAS
CONFERRED UPON HIM AS AN ADMINISTRATOR IN HIS CAPACITY AS SUCH, AND
THAT UNDER HIS RULEMAKING AUTHORITY, AS A MATTER OF ADMINISTRATIVE
CONVENIENCE, HE COULD DELEGATE HIS AUTHORITY TO SPECIAL INQUIRY
OFFICERS WITH REVIEW BY THE BOARD OF IMMIGRATION APPEALS.  66 STAT.
173, 8 U.S.C. SEC. 1103. 

FN9  8 CFR, REV. 1952, SEC. 242.54(D). 

FN10  IBID. 

FN11  IBID. 

FN12  8 CFR, REV. 1952, SEC. 242.53(C). 

FN13  8 CFR, REV. 1952, SEC. 242.61(A). 

FN14  SEE NOTES 4 AND 5, SUPRA, AND ACCOMPANYING TEXT. 

FN15 CONGRESS FIRST PROVIDED FOR SUSPENSION OF DEPORTATION IN 1940 BY
ADDING A NEW PROVISION TO THE IMMIGRATION ACT OF 1917.  54 STAT. 672,
AS AMENDED, 62 STAT. 1206, 8 U.S.C.  (1946 ED., SUPP. V) SEC. 155(C). 
THAT NEW PROVISION PROVIDED THAT "THE ATTORNEY GENERAL MAY  ...
SUSPEND DEPORTATION" UNDER CERTAIN CIRCUMSTANCES.  IN ENACTING THE
IMMIGRATION AND NATIONALITY ACT OF 1952, CONGRESS ADDED THE PHRASE "IN
HIS DISCRETION" AFTER THE WORDS "THE ATTORNEY GENERAL MAY."  IN AN
ANALYSIS OF DRAFT LEGISLATION LEADING UP TO THE 1952 ACT, PREPARED BY
THE IMMIGRATION AND NATURALIZATION SERVICE FOR THE ASSITANCE OF THE
CONGRESSIONAL COMMITTEES, IT WAS STATED THAT THE NEW WORDS WERE
SUGGESTED "IN ORDER TO INDICATE CLEARLY THAT THE GRANT OF SUSPENSION IS
ENTIRELY DISCRETIONARY  ...  ."  THAT ANALYSIS WAS CONSIDERED BY THE
CONGRESSIONAL COMMITTEES.  SEE S. REP. NO. 1137, 82D CONG., 2D SESS.,
P. 3; H.R. REP.  NO. 1365, 82D CONG., 2D SESS., P. 28. 

FN16  AS STATED BY JUDGE LEARNED HAND, "THE POWER OF THE ATTORNEY
GENERAL TO SUSPEND DEPORTATION IS A DISPENSING POWER, LIKE A JUDGE'S
POWER TO SUSPEND THE EXECUTION OF A SENTENCE OR THE PRESIDENT'S TO
PARDON A CONVICT."  UNITED STATES EX REL. KALOUDIS V. SHAUGHNESSY, 180
F.2D 489, 491.   SEE ALSO S. REP. NO. 1137, 82D CONG., 2D SESS., P. 25,
FOR AN INDICATION THAT SUSPENSION OF DEPORTATION IS A MATTER OF GRACE
TO COVER CASES OF UNUSUAL HARDSHIP.  AND SEE 81 CONG. REC. 5546, 5553,
5554, 5561, 5569-5570, AND 5572 WHERE EARLY PROPOSED LEGISLATION FOR
ADMINISTRATIVE SUSPENSION OF DEPORTATION WAS VARIOUSLY DESCRIBED AS A
PROCEDURE FOR "CLEMENCY" AND "AMNESTY," AND WAS COMPARED WITH
PRESIDENTIAL DISCRETION.  AND SEE S. REP. NO. 1515, 81ST CONG., 2D
SESS., P. 600, EMPHASIZING THAT SUSPENSION OF DEPORTATION IS AN
ENTIRELY DISCRETIONARY ACTION WHICH DOES NOT FOLLOW AUTOMATICALLY FROM
COMPLIANCE WITH THE FORMAL ELIGIBILITY REQUIREMENTS. 

FN17  "  ...  IF IN THE OPINION OF THE BOARD (OF PAROLE) SUCH RELEASE
IS NOT INCOMPATIBLE WITH THE WELFARE OF SOCIETY, THE BOARD MAY IN ITS
DISCRETION AUTHORIZE THE RELEASE OF SUCH PRISONER ON PAROLE."  18
U.S.C. SEC. 4203.  SEE UNITED STATES V. ANDERSON, 76 F.2D 375, 376;
LOSIEAU V. HUNTER, 90 U.S. APP. D.C. 85, 193 F.2D 41. 

FN18  A SENTENCING COURT "MAY SUSPEND  ...  SENTENCE AND PLACE THE
DEFENDANT ON PROBATION" IF IT IS "SATISFIED THAT THE ENDS OF JUSTICE
AND THE BEST INTEREST OF THE PUBLIC AS WELL AS THE DEFENDANT WILL BE
SERVED THEREBY."  18 U.S.C. SEC. 3651.    "THE PROBATION SERVICE OF THE
COURT SHALL MAKE A PRESENTENCE INVESTIGATION AND REPORT TO THE COURT
BEFORE THE IMPOSITION OF SENTENCE OR THE GRANTING OF PROBATION  ...
."  RULE 32(C)(1), FED. RULES CRIM. PROC. "THE REPORT OF THE
PRESENTENCE INVESTIGATION SHALL CONTAIN ANY PRIOR CRIMINAL RECORD OF
THE DEFENDANT AND SUCH INFORMATION ABOUT HIS CHARACTERISTICS, HIS
FINANCIAL CONDITION AND THE CIRCUMSTANCES AFFECTING HIS BEHAVIOR AS MAY
BE HELPFUL IN IMPOSING SENTENCE OR IN GRANTING PROBATION OR IN THE
CORRECTIONAL TREATMENT OF THE DEFENDANT, AND SUCH OTHER INFORMATION AS
MAY BE REQUIRED BY THE COURT."  RULE 32(C)(2), FED. RULES CRIM. PROC.
"BEFORE IMPOSING SENTENCE THE COURT SHALL AFFORD THE DEFENDANT AN
OPPORTUNITY TO MAKE A STATEMENT IN HIS OWN BEHALF AND TO PRESENT ANY
INFORMATION IN MITIGATION OF PUNISHMENT."  RULE 32(A), FED. RULES CRIM.
PROC. 

CF. WILLIAMS V. NEW YORK, 337 U.S. 241, WHERE THIS COURT HELD THAT
THERE IS NO CONSTITUTIONAL BAR TO SETTING A STATE CRIMINAL SENTENCE ON
THE BASIS OF "OUT-OF-COURT INFORMATION." 

FN19  "IF IT APPEARS TO THE BOARD OF PAROLE FROM A REPORT BY THE
PROPER INSTITUTIONAL OFFICERS OR UPON APPLICATION BY A PRISONER
ELIGIBLE FOR RELEASE ON PAROLE, THAT THERE IS A REASONABLE PROBABILITY
THAT SUCH PRISONER WILL LIVE AND REMAIN AT LIBERTY WITHOUT VIOLATING
THE LAWS, AND IF IN THE OPINION OF THE BOARD SUCH RELEASE IS NOT
INCOMPATIBLE WITH THE WELFARE OF SOCIETY, THE BOARD MAY IN ITS
DISCRETION AUTHORIZE THE RELEASE OF SUCH PRISONER ON PAROLE."  18
U.S.C. SEC. 4203(A). 

NOTE ALSO THAT ONLY CERTAIN PRISONERS ARE ELIGIBLE FOR THIS
DISCRETIONARY RELIEF.  18 U.S.C.  SEC. 4202. 

FN20  SEE KNAUFF V. SHAUGHNESSY, 338 U.S. 537, AND SHAUGHNESSY V.
MEZEI, 345 U.S. 206, UPHOLDING A REGULATION OF THE ATTORNEY GENERAL TO
A SIMILAR EFFECT WHICH HAD BEEN PROMULGATED PRIOR TO THE EXISTENCE OF
SEC. 235(C) OR ANY OTHER SUCH SPECIFIC STATUTORY AUTHORITY. 

FN21  IT IS NOT CLAIMED THAT A CONTRARY CONSTRUCTION WOULD RENDER THE
STATUTE AND REGULATION UNCONSTITUTIONAL, OR EVEN THAT A SUBSTANTIAL
CONSTITUTIONAL QUESTION WOULD THEREBY ARISE.  THE THRUST OF THE
ARGUMENT IS RATHER THAT THE STATUTE SHOULD BE CONSTRUED LIBERALLY IN
FAVOR OF THE ALIEN AS A MATTER OF STATUTORY INTERPRETATION.  IN ANY
EVENT, IN THIS CASE WE HAVE NOT VIOLATED OUR NORMAL RULE OF STATUTORY
INTERPRETATION THAT, WHERE POSSIBLE, CONSTRUCTIONS GIVING RISE TO
DOUBTFUL CONSTITUTIONAL VALIDITY SHOULD BE AVOIDED.  THAT RULE DOES NOT
AUTHORIZE A DEPARTURE FROM CLEAR MEANING.  E.G., UNITED STATES V.
SULLIVAN, 332 U.S. 689, 693; HOPKINS FEDERAL SAVINGS & LOAN ASSN. V.
CLEARY, 296 U.S. 315, 334-335.  MOREOVER, THE CONSTITUTIONALITY OF SEC.
244 AS HEREIN INTERPRETED GIVES US NO DIFFICULTY.  CF. WILLIAMS V. NEW
YORK, 337 U.S. 241. 

FN22  PETITIONER PRESENTS THE CLAIM THAT THE DECISION OF THE SPECIAL
INQUIRY OFFICER WAS VOID IN THAT THE "SO-CALLED CONFIDENTIAL MATTER
...  WAS OF SUCH A CHARACTER THAT ITS CONSIDERATION WAS NOT AUTHORIZED
BY APPLICABLE REGULATIONS ESTABLISHED BY THE ATTORNEY GENERAL."  SEE
NOTE 6, SUPRA.  TO THE EXTENT THAT THIS IS AN ALLEGATION THAT THE
UNDISCLOSED INFORMATION, IF REVEALED, WOULD NOT HAVE BEEN PREJUDICIAL
TO THE PUBLIC INTEREST, PETITIONER IS ARGUING THAT THE DECISION
VIOLATED 8 CFR, REV. 1952, SEC. 244.3.  THE BOARD OF IMMIGRATION
APPEALS, THE DISTRICT COURT, AND THE COURT OF APPEALS CONCLUDED, IN
EFFECT, THAT THE SPECIAL INQUIRY OFFICER FOUND THAT THE DISCLOSURE OF
THE INFORMATION WOULD HAVE BEEN CONTRARY TO PUBLIC INTEREST, SAFETY OR
SECURITY.  WE ACCEPT THAT FINDING.  NOTHING MORE IS REQUIRED BY THE
REGULATION. 

FN23  THE SUBSTANCE OF THIS REGULATION IS NOW INCORPORATED IN SEC.
235(C) OF THE ACT, 8 U.S.C. SEC. 1225(C).  SEE PP. 356-357, SUPRA. 

FN24  SEE NOTE 18, SUPRA. 

MR. CHIEF JUSTICE WARREN, DISSENTING. 

IN CONSCIENCE, I CANNOT AGREE WITH THE OPINION OF THE MAJORITY.  IT
SACRIFICES TO FORM TOO MUCH OF THE AMERICAN SPIRIT OF FAIR PLAY IN BOTH
OUR JUDICIAL AND ADMINISTRATIVE PROCESSES. 

IN THE INTEREST OF HUMANITY, THE CONGRESS, IN ORDER TO RELIEVE SOME
OF THE HARSHNESS OF THE IMMIGRATION LAWS, GAVE THE ATTORNEY GENERAL
DISCRETION TO RELIEVE HARDSHIP IN DEPORTATION CASES.  I DO NOT BELIEVE
IT WAS "AN UNFETTERED DISCRETION," AS STATED IN THE OPINION.  IT WAS AN
ADMINISTRATIVE DISCRETION CALLING FOR A REPORT TO CONGRESS ON THE
MANNER OF ITS USE.  THE ATTORNEY GENERAL, RECOGNIZING THIS, RIGHTFULLY
PROVIDED FOR AN ADMINISTRATIVE HEARING FOR THE EXERCISE OF THAT
DISCRETION.  ON THE OTHER HAND, HE PROVIDED BY HIS REGULATION THAT HIS
NUMEROUS SUBORDINATE HEARING OFFICERS MIGHT, IN SPITE OF A RECORD
CLEARLY ESTABLISHING A RIGHT TO RELIEF, DENY THAT RELIEF IF, ON THE
BASIS OF UNDISCLOSED "CONFIDENTIAL" INFORMATION, THE RELIEF WOULD IN
THEIR OPINION BE "PREJUDICIAL TO THE PUBLIC INTEREST, SAFETY, OR
SECURITY."  SUCH A HEARING IS NOT AN ADMINISTRATIVE HEARING IN THE
AMERICAN SENSE OF THE TERM.  IT IS NO HEARING. 

YET, ON THE BASIS OF SUCH "CONFIDENTIAL" INFORMATION, AFTER MORE THAN
40 YEARS OF RESIDENCE HERE, WE ARE TEARING PETITIONER FORM HIS
RELATIVES AND FRIENDS AND FROM THE COUNTRY HE FOUGHT TO SUSTAIN,* WHEN
THE RECORD SHOWS HE HAS NOT OFFENDED AGAINST OUR LAWS, BEARS A GOOD
REPUTATION, AND WOULD SUFFER GREAT HARDSHIP IF DEPORTED.  PETITIONER IS
NOT A CITIZEN OF THE UNITED STATES, BUT THE DUE PROCESS CLAUSE PROTECTS
"PERSONS."  TO ME, THIS IS NOT DUE PROCESS.  IF SANCTION OF THIS USE
AND EFFECT OF "CONFIDENTIAL" INFORMATION IS CONFIRMED AGAINST THIS
PETITIONER BY A PROCESS OF JUDICIAL REASONING, IT MAY BE RECOGNIZED AS
A PRINCIPLE OF LAW TO BE EXTENDED AGAINST AMERICAN CITIZENS IN A MYRIAD
OF WAYS. 

I AM UNWILLING TO WRITE SUCH A DEPARTURE FROM AMERICAN STANDARDS INTO
THE JUDICIAL OR ADMINISTRATIVE PROCESS OR TO IMPUTE TO CONGRESS AN
INTENTION TO DO SO IN THE ABSENCE OF MUCH CLEARER LANGUAGE THAN IT HAS
USED HERE. 

*PETITIONER'S ONLY ABSENCE FROM THIS COUNTRY SINCE HIS ORIGINAL ENTRY
IN 1914 WAS DURING WORLD WAR I TO SERVE IN THE ARMED FORCES OF OUR
NEIGHBOR AND ALLY, THE DOMINION OF CANADA. 

MR. JUSTICE BLACK, DISSENTING. 

THIS IS A STRANGE CASE IN A COUNTRY DEDICATED BY ITS FOUNDERS TO THE
MAINTENANCE OF LIBERTY UNDER LAW.  THE PETITIONER, CECIL REGINALD JAY,
IS BEING BANISHED BECAUSE HE WAS A MEMBER OF THE COMMUNIST PARTY FROM
1935 TO 1940.  HIS COMMUNIST PARTY MEMBERSHIP AT THAT TIME DID NOT
VIOLATE ANY LAW.  THE PARTY WAS RECOGNIZED THEN AS A POLITICAL
ORGANIZATION AND HAD CANDIDATES IN MANY STATE ELECTIONS.  JAY'S
COMMUNIST PARTY MEMBERSHIP ENDED 10 YEARS BEFORE SUCH MEMBERSHIP WAS
MADE A GROUND FOR DEPORTATION BY CONGRESS.  64 STAT. 1006-1008.  IT IS
FOR THIS PAST COMMUNIST MEMBERSHIP, WHOLLY LEGAL WHEN IT EXISTED, THAT
JAY HAS BEEN ORDERED DEPORTED.  (FN1) 

EVEN THOUGH AN ALIEN HAS BEEN FOUND TO BE DEPORTABLE, CONGRESS HAS
PROVIDED A PROCEDURE WHICH HE CAN INVOKE TO HAVE HIS DEPORTATION
SUSPENDED.  66 STAT. 163, 214-216, 8 U.S.C.  SECS. 1254(A)(5),
1254(C).  HE IS ENTITLED TO SUSPENSION "IN THE DISCRETION" OF THE
ATTORNEY GENERAL IF HE "PROVES" THAT DURING THE PRECEDING 10 YEARS HE
HAS BEEN A PERSON OF GOOD MORAL CHARACTER AND IF DEPORTATION WOULD
RESULT IN EXCEPTIONAL AND UNUSUAL HARDSHIP.  THE LANGUAGE OF THE
STATUTE PLAINLY SHOWS THAT AN ALIEN MUST BE GIVEN AN OPPORTUNITY TO
"PROVE" THESE THINGS IF HE CAN.  THIS OF COURSE MEANS THAT HE MUST HAVE
A FULL AND FAIR HEARING.  JAY ASKED TO BE ALLOWED TO GIVE SUCH PROOF
AND IN FACT PROVED HIS CASE TO THE COMPLETE SATISFACTION OF THE HEARING
OFFICER WHO PASSED ON IT.  BUT THE HEARING OFFICER "AFTER CONSIDERING
CONFIDENTIAL INFORMATION" REFUSED TO SUSPEND DEPORTATION.  THE BOARD OF
IMMIGRATION APPEALS DISMISSED JAY'S APPEAL. 

JAY IS NOW 65 YEARS OF AGE.  HE CAME TO THIS COUNTRY FROM ENGLAND FOR
PERMANENT RESIDENCE IN 1914.   HE HAS REMAINED HERE EVER SINCE EXCEPT
FOR TIME HE SERVED IN THE ARMY OF OUR ALLY CANADA DURING THE FIRST
WORLD WAR.  DESPITE THE GOVERNMENT'S FAR-FLUNG INVESTIGATIVE NETWORK IT
HAS NOT BEEN ABLE TO DIG UP ONE SINGLE INCIDENT OF MISCONDUCT ON THE
PART OF JAY DURING HIS ENTIRE 65 YEARS WHICH IT IS WILLING TO PRODUCE
IN COURT.  (FN2)  THAT JAY IS A PERSON OF GOOD MORAL CHARACTER AND THAT
HIS ENFORCED EXILE FROM THIS COUNTRY WILL WORK AN "EXCEPTIONAL AND
EXTREMELY UNUSUAL HARDSHIP" HAVE BEEN FOUND BY THE HEARING OFFICER. 

I AGREE WITH THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER AND MR.
JUSTICE DOUGLAS THAT THE ATTORNEY GENERAL'S REGULATION AUTHORIZING JAY
AND OTHERS LIKE HIM TO BE DEPORTED UPON ALLEGED ANONYMOUS INFORMATION
SHOULD BE HELD INVALID AS BEYOND THE STATUTORY POWER OF THE ATTORNEY
GENERAL.  BUT A MAJORITY OF THE COURT HOLDS OTHERWISE.  THIS MAKES IT
NECESSARY TO CONSIDER THE CONSTITUTIONALITY OF THE USE OF ANONYMOUS
INFORMATION FOR SUCH A PURPOSE.  IN FOOTNOTE 21 OF ITS OPINION THE
COURT STATES, SOMEWHAT AS AN ASIDE, THAT "THE CONSTITUTIONALITY OF SEC.
244 AS HEREIN INTERPRETED GIVES US NO DIFFICULTY."  IN THIS EASY
FASHION THE COURT DISPOSES OF A CHALLENGE TO THE POWER OF CONGRESS TO
BANISH PEOPLE ON INFORMATION ALLEGEDLY GIVEN FEDERAL OFFICERS BY
PERSONS WHOSE NAMES ARE NOT REVEALED AND WHOSE STATEMENTS (IF MADE) ARE
SHROUDED IN THE DARKNESS WHICH SURROUNDS "CONFIDENTIAL INFORMATION." 

WHAT IS MEANT BY "CONFIDENTIAL INFORMATION"?  ACCORDING TO OFFICERS
OF THE IMMIGRATION SERVICE IT MAY BE "MERELY INFORMATION WE RECEIVED
OFF THE STREET"; OR "WHAT MIGHT BE TERMED AS HEARSAY EVIDENCE, WHICH
COULD NOT BE GOTTEN INTO THE RECORD  ...  "; OR "INFORMATION FROM
PERSONS WHO WERE IN A POSITION TO GIVE US THE INFORMATION THAT MIGHT BE
DETRIMENTAL TO THE INTERESTS OF THE SERVICE TO DISCLOSE THAT PERSON'S
NAME  ...  "; OR "SUCH THINGS, PERHAPS, AS INCOME-TAX RETURNS, OR MAYBE
A WITNESS WHO DIDN'T WANT TO BE DISCLOSED OR WHERE IT MIGHT ENDANGER
THEIR LIFE, OR SOMETHING OF THAT KIND  ...  ."  (FN3)  NO NATION CAN
REMAIN TRUE TO THE IDEAL OF LIBERTY UNDER LAW AND AT THE SAME TIME
PERMIT PEOPLE TO HAVE THEIR HOMES DESTROYED AND THEIR LIVES BLASTED BY
THE SLURS OF UNSEEN AND UNSWORN INFORMERS.  THERE IS NO POSSIBLE WAY TO
CONTEST THE TRUTHFULNESS OF ANONYMOUS ACCUSATIONS.  THE SUPPOSED
ACCUSER CAN NEITHER BE IDENTIFIED NOR INTERROGATED.  HE MAY BE THE MOST
WORTHLESS AND IRRESPONSIBLE CHARACTER IN THE COMMUNITY.  WHAT HE SAID
MAY BE WHOLLY MALICIOUS, UNTRUE, UNRELIABLE, OR INACCURATELY REPORTED. 
IN A COURT OF LAW THE TRIERS OF FACT COULD NOT EVEN LISTEN TO SUCH
GOSSIP, MUCH LESS DECIDE THE MOST TRIFLING ISSUE ON IT. 

THE COURT TODAY IS NOT CONTENT WITH ALLOWING EXILE ON THE BASIS OF
ANONYMOUS GOSSIP.  IT HOLDS THAT THE HEARING OFFICER WHO CONDEMNED JAY
COULD ACT IN HIS "UNFETTERED DISCRETION," SUBJECT ONLY TO REVIEW BY THE
BOARD OF IMMIGRATION APPEALS.  OF COURSE THE COURT REFERS TO THE
ATTORNEY GENERAL'S "UNFETTERED DISCRETION," BUT PARTICIPATION OF THE
ATTORNEY GENERAL IN THIS CASE IS A FICTION.  THE COURT CONCEDES IN NOTE
8 OF ITS OPINION THAT THE ATTORNEY GENERAL DOES NOT PERSONALLY EXERCISE
DISCRETION IN THESE CASES.  THEREFORE, THE "UNFETTERED DISCRETION" TO
WHICH THE COURT SUBJECTS PERSONS LIKE JAY IS THE UNFETTERED DISCRETION
OF INQUIRY OFFICERS OF THE IMMIGRATION SERVICE, REVIEWABLE ONLY BY THE
BOARD OF IMMIGRATION APPEALS.  UNDER OUR SYSTEM OF GOVERNMENT THERE
SHOULD BE NO WAY TO SUBJECT THE LIFE AND FREEDOM OF ONE INDIVIDUAL TO
THE "UNFETTERED" OR, MORE ACCURATELY, THE "ARBITRARY" POWER OF
ANOTHER.  ARTICLE III OF OUR CONSTITUTION AND THE BILL OF RIGHTS INTEND
THAT PEOPLE (FN4) SHALL NOT HAVE VALUABLE RIGHTS AND PRIVILEGES TAKEN
AWAY FROM THEM BY GOVERNMENT UNLESS THE DEPRIVATION OCCURS AFTER SOME
KIND OF COURT PROCEEDING WHERE WITNESSES CAN BE CONFRONTED AND
QUESTIONED AND WHERE THE PUBLIC CAN KNOW THAT THE RIGHTS OF INDIVIDUALS
ARE BEING PROTECTED. 

UNFORTUNATELY, THIS CASE IS NOT THE FIRST ONE IN RECENT YEARS WHERE
ARBITRARY POWER HAS BEEN APPROVED AND WHERE ANONYMOUS INFORMATION HAS
BEEN USED TO TAKE AWAY VITAL RIGHTS AND PRIVILEGES OF PEOPLE.  (FN5)
THE COURT DISPOSES OF WHAT HAS BEEN DONE TO JAY TO ITS SATISFACTION BY
SAYING THAT HIS RIGHT TO STAY HERE IF HE PROVES HE IS A GOOD CITIZEN
"COMES AS AN ACT OF GRACE," LIKE "PROBATION OR SUSPENSION OF CRIMINAL
SENTENCE."  BUT PROBATION AND SUSPENSION OF CRIMINAL SENTENCE COME ONLY
AFTER CONVICTION OF CRIME.  CF. WILLIAMS V. NEW YORK, 337 U.S. 241. 
HERE THE GOVERNMENT WITH ALL OF ITS RESOURCES HAS NOT BEEN ABLE TO
PROVE THAT JAY EVER COMMITTED A CRIME OF ANY KIND.  AND CONGRESS
PROVIDED THE SUSPENSION PROCEDURE SO THAT ONE IN JAY'S SITUATION COULD
GET SPECIAL RELIEF IF HE PROVED HIS GOOD MORAL CHARACTER.  VIEWED
REALISTICALLY THIS SUSPENSION PROCEDURE IS AN INTEGRAL PART OF THE
PROCESS OF DECIDING WHO SHALL BE DEPORTED. 

NO AMOUNT OF LEGAL REASONING BY THE COURT AND NO RATIONALIZATION THAT
CAN BE DEVISED CAN DISGUISE THE FACT THAT THE USE OF ANONYMOUS
INFORMATION TO BANISH PEOPLE IS NOT CONSISTENT WITH THE PRINCIPLES OF A
FREE COUNTRY.  UNFORTUNATELY THERE ARE SOME WHO THINK THAT THE WAY TO
SAVE FREEDOM IN THIS COUNTRY IS TO ADOPT THE TECHNIQUES OF TYRANNY. 
ONE TECHNIQUE WHICH IS ALWAYS USED TO MAINTAIN ABSOLUTE POWER IN
TOTALITARIAN GOVERNMENTS IS THE USE OF ANONYMOUS INFORMATION BY
GOVERNMENT AGAINST THOSE WHO ARE OBNOXIOUS TO THE RULERS.  (FN6)  IN
CONNECTION WITH ANOTHER CASE LIKE THIS (FN7) I REFERRED TO A STATEMENT
MADE BY THE ROMAN EMPEROR TRAJAN TO PLINY THE YOUNGER AROUND THE END OF
THE FIRST CENTURY.  ROME AT THAT TIME WAS PROSECUTING THE CHRISTIANS
FOR ALLEGED SUBVERSIVD ACTIVITIES.  PLINY EXPRESSED HIS DOUBTS TO
TRAJAN AS TO THE BEST METHOD OF HANDLING THE PROSECUTIONS.  HE WROTE
TRAJAN, "AN ANONYMOUS INFORMATION WAS LAID BEFORE ME CONTAINING A
CHARGE AGAINST SEVERAL PERSONS, WHO UPON EXAMINATION DENIED THEY WERE
CHRISTIANS, OR HAD EVER BEEN SO  ... ."  TRAJAN REPLIED, "YOU HAVE
ADOPTED THE RIGHT COURSE, MY DEAREST SECUNDUS, IN INVESTIGATING THE
CHARGES AGAINST THE CHRISTIANS WHO WERE BROUGHT BEFORE YOU  ...  .
ANONYMOUS INFORMATIONS OUGHT NOT TO BE RECEIVED IN ANY SORT OF
PROSECUTION.  IT IS INTRODUCING A VERY DANGEROUS PRECEDENT, AND IS
QUITE FOREIGN TO THE SPIRIT OF OUR AGE."  (FN8)    IT WAS ALSO FOREIGN
TO THE BRAVE SPIRIT OF THE AMERICAN AGE THAT GAVE BIRTH TO OUR
CONSTITUTIONAL SYSTEM OF COURTS WITH THEM COMPREHENSIVE SAFEGUARDS FOR
FAIR PUBLIC TRIALS.  IN THOSE COURTS A DEFENDANT'S FATE IS TO BE
DETERMINED BY INDEPENDENT JUDGES AND JURIES WHO HEAR EVIDENCE GIVEN BY
WITNESSES IN THEIR PRESENCE AND IN THE PRESENCE OF THE ACCUSED.  (FN9)
BUT THIS CASE SHOWS HOW FAR WE HAVE DEPARTED FROM THE CAREFULLY
CONCEIVED PLAN TO SAFEGUARD INDIVIDUAL LIBERTY.  ALTHOUGH THE COURT
TODAY PAYS LIP SERVICE TO JUDICIAL REVIEW, A HEARING OFFICER'S
CONDEMNATION OF JAY IS HELD FINAL AND UNREVIEWABLE.  HIS CONDEMNATION
IS IN OPEN DEFIANCE OF ALL THE PUBLIC TESTIMONY GIVEN, AND RESTS
EXCLUSIVELY ON "CONFIDENTIAL INFORMATION" HE CLAIMS TO HAVE RECEIVED
FROM UNREVEALED SOURCES.  UNFORTUNATELY THIS CONDEMNATION OF JAY ON
ANONYMOUS INFORMATION IS NOT UNUSUAL - IT MANIFESTS THE POPULAR FASHION
IN THESE DAYS OF FEAR.  LEGAL RATIONALIZATIONS (FN10) HAVE BEEN
CONTRIVED TO SHIFT TRIALS FROM CONSTITUTIONAL COURTS TO TEMPORARY
REMOVABLE APPOINTEES LIKE THE HEARING OFFICER WHO DECIDED AGAINST JAY. 
(FN11)  AND WHEN AN ACCUSED RISES TO DEFEND HIMSELF BEFORE SUCH AN
OFFICER HE IS MET BY A STATEMENT THAT "WE HAVE EVIDENCE THAT YOU ARE
GUILTY OF SOMETHING, BUT WE CANNOT TELL YOU WHAT, NOR WHO GAVE US THE
EVIDENCE."  IF, TAKING THE BILL OF RIGHTS SERIOUSLY, HE COMPLAINS, HE
IS MET BY THE RATHER IMPATIENT REJOINDER THAT THE GOVERNMENT'S SAFETY
WOULD BE JEOPARDIZED BY ACCORDING HIM THE KIND OF TRIAL THE
CONSTITUTION COMMANDS.  (FN12)  BUT THE CORE OF OUR CONSTITUTIONAL
SYSTEM IS THAT INDIVIDUAL LIBERTY MUST NEVER BE TAKEN AWAY BY
SHORTCUTS, THAT FAIR TRIALS IN INDEPENDENT COURTS MUST NEVER BE
DISPENSED WITH.  THAT SYSTEM IS IN GRAVE DANGER.  THIS CASE EMPHASIZES
THAT FACT.  PROSECUTION OF ANY SORT ON ANONYMOUS INFORMATION IS STILL
TOO DANGEROUS, JUST AS IT WAS WHEN TRAJAN REJECTED IT NEARLY TWO
THOUSAND YEARS AGO.  THOSE WHO PRIZE LIBERTY WOULD DO WELL TO PONDER
THIS. 

FN1  THE CONSTITUTIONALITY OF THIS ACT AUTHORIZING DEPORTATION FOR
CONDUCT LEGAL WHEN IT OCCURRED WAS SUSTAINED IN GALVAN V. PRESS, 347
U.S. 522.  MR. JUSTICE DOUGLAS AND I DISSENTED.  ON APRIL 6, 1953,
PRESIDENT EISENHOWER SENT A MESSAGE TO SENATOR ARTHUR V. WATKINS
CALLING ATTENTION TO THE HARSHNESS OF THE IMMIGRATION LAWS WHICH WERE
USED HERE TO DEPORT JAY.  IN LISTING "INJUSTICES" CLAIMED TO EXIST IN
THE LEGISLATION PRESIDENT EISENHOWER REFERRED TO: 

"DEPORTATION PROVISIONS THAT PERMIT AN ALIEN TO BE DEPORTED AT ANY
TIME AFTER ENTRY, IRRESPECTIVE OF HOW LONG AGO HE WAS INVOLVED, AFTER
ENTRY, IN AN ACTIVITY OR AFFILIATION DESIGNATED AS 'SUBVERSIVE.'  SUCH
ALIEN IS NOW SUBJECT TO DEPORTATION EVEN IF HIS PRIOR AFFILIATION WAS
TERMINATED MANY YEARS AGO AND HE HAS SINCE CONDUCTED HIMSELF AS A MODEL
AMERICAN."  99 CONG. REC. 4321. 

FN2  INCLUDED IN THE TESTIMONY FOR JAY WAS AN AFFIDAVIT BY THE
ASSISTANT EXECUTIVE DIRECTOR FOR THE SEATTLE HOUSING AUTHORITY WHICH
EMPLOYED HIM, STATING: 

"MR. JAY WAS RATED AS ONE OF THE MOST CONSCIENTIOUS AND FAITHFUL
EMPLOYEES OF THIS AUTHORITY.  HIS HONESTY WAS UNQUESTIONED.  HIS
INTEREST IN HIS WORK EXTENDED BEYOND THE NORMAL WORKING HOURS AND HE
WAS ALWAYS WILLING TO ACCEPT ADDITIONAL RESPONSIBILITIES WITHOUT
ADDITIONAL COMPENSATION.  HE WAS FORTHRIGHT IN HIS OPINIONS.  HIS
GENERAL MORAL CHARACTER IS EVIDENCED BY THE FACT THAT DURING HIS ENTIRE
PERIOD OF EMPLOYMENT NOT ONE COMPLAINT WAS EVER RECEIVED FROM EITHER
THE TENANTS OR HIS FELLOW EMPLOYEES AS TO HIS RELATIONSHIPS WITH
PEOPLE." 

FN3  HEARINGS BEFORE HOUSE SUBCOMMITTEE ON LEGAL AND MONETARY AFFAIRS
OF THE COMMITTEE ON GOVERNMENT OPERATIONS:  PRACTICES AND PROCEDURES OF
THE IMMIGRATION AND NATURALIZATION SERVICE IN DEPORTATION PROCEEDINGS,
84TH CONG., 1ST SESS. 18, 67, 138, 207. 

FN4  THE FACT THAT JAY IS AN ALIEN SHOULD NOT MEAN THAT HE IS OUTSIDE
THE PROTECTION OF THE CONSTITUTION.  AS MR. JUSTICE BREWER SAID IN
DEALING WITH WHETHER ALIENS ARE PROTECTED BY THE FIRST 10 AMENDMENTS:
"IT IS WORTHY OF NOTICE THAT IN THEM THE WORD 'CITIZEN' IS NOT FOUND. 
IN SOME OF THEM THE DESCRIPTIVE WORD IS 'PEOPLE,' BUT IN THE FIFTH IT
IS BROADER, AND THE WORD IS 'PERSON,' AND IN THE SIXTH IT IS THE
'ACCUSED,' WHILE IN THE THIRD, SEVENTH, AND EIGHTH THERE IS NO
LIMITATION AS TO THE BENEFICIARIES SUGGESTED BY ANY DESCRIPTIVE WORD." 
FONG YUE TING V. UNITED STATES, 149 U.S. 698, 739 (DISSENTING). 

FN5  SEE, E.G., LUDECKE V. WATKINS, 335 U.S. 160; UNITED STATES EX
REL. KNAUFF V. SHAUGHNESSY, 338 U.S. 537; SHAUGHNESSY V. UNITED STATES
EX REL. MEZEI, 345 U.S. 206; JOINT ANTI-FASCIST REFUGEE COMMITTEE V.
MCGRATH, 341 U.S. 123; CARLSON V. LANDON, 342 U.S. 524. 

FN6  RECENTLY NIKITA KHRUSHCHEV IS REPORTED TO HAVE TOLD THE 20TH
COMMUNIST PARTY CONGRESS THAT STALIN VIOLATED: 

"  ...  ALL EXISTING NORMS OF MORALITY AND OF SOVIET LAWS. 

"ARBITRARY BEHAVIOR BY ONE PERSON ENCOURAGED AND PERMITTED
ARBITRARINESS IN OTHERS.  MASS ARRESTS AND DEPORTATIONS OF MANY
THOUSANDS OF PEOPLE, EXECUTIONS WITHOUT TRIAL AND WITHOUT NORMAL
INVESTIGATION CREATED CONDITIONS OF INSECURITY, FEAR AND EVEN
DESPERATION. 

     *         *         *     *         * 

"  ...  HONEST COMMUNISTS WERE SLANDERED, ACCUSATIONS AGAINST THEM
WERE FABRICATED, AND REVOLUTIONARY LEGALITY WAS GRAVELY UNDERMINED." 
DEPARTMENT OF STATE PRESS RELEASE, JUNE 4, 1956, PP. 8-9, 14;
WASHINGTON POST & TIMES HERALD, JUNE 6, 1956, P. 11, COLS.  1, 6. 

FN7  CARLSON V. LANDON, 342 U.S. 524, 552 (DISSENTING OPINION). 

FN8  9 HARVARD CLASSICS 426-428. 

FN9  SEE UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S. 11; IN RE
OLIVER, 333 U.S. 257.  CF. KINSELLA V. KRUEGER, 351 U.S. 470; REID V.
COVERT, 351 U.S. 487. 

FN10  AS MR. JUSTICE BRADLEY SAID FOR THE COURT IN BOYD V. UNITED
STATES, 116 U.S. 616, 635, "ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES
GET THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT APPROACHES AND
SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE.  THIS CAN ONLY BE
OBVIATED BY ADHERING TO THE RULE THAT CONSTITUTIONAL PROVISIONS FOR THE
SECURITY OF PERSON AND PROPERTY SHOULD BE LIBERALLY CONSTRUED.  A CLOSE
AND LITERAL CONSTRUCTION DEPRIVES THEM OF HALF THEIR EFFICACY, AND
LEADS TO GRADUAL DEPRECIATION OF THE RIGHT, AS IF IT CONSISTED MORE IN
SOUND THAN IN SUBSTANCE.  IT IS THE DUTY OF COURTS TO BE WATCHFUL FOR
THE CONSTITUTIONAL RIGHTS OF THE CITIZEN, AND AGAINST ANY STEALTHY
ENCROACHMENTS THEREON  ...  ."  SEE ALSO DISSENTING OPINION OF MR.
JUSTICE BREWER IN FONG YUE TING V. UNITED STATES, 149 U.S. 698, 744. 

FN11  SEE SHAUGHNESSY V. UNITED STATES EX REL. ACCARDI, 349 U.S. 280,
290-293 (DISSENTING); UNITED STATES EX REL. TOTH V. QUARLES, 350 U.S.
11, 17. 

FN12  THE DESTRUCTION OF JUDICIAL PROTECTIONS FOR FAIR AND OPEN
DETERMINATIONS OF GUILT IS AN ESSENTIAL TO MAINTENANCE OF
DICTATORSHIPS.  AFTER THE MURDEROUS PURGE OF HUNDREDS OF GERMAN
CITIZENS HITLER SAID: 

"IF ANYONE REPROACHES ME AND ASKS WHY I DID NOT RESORT TO THE REGULAR
COURTS OF JUSTICE FOR CONVICTION OF THE OFFENDERS, THEN ALL THAT I CAN
SAY TO HIM IS THIS:  IN THIS HOUR I WAS RESPONSIBLE FOR THE FATE OF THE
GERMAN PEOPLE, AND THEREBY I BECAME THE SUPREME JUSTICIAR OF THE GERMAN
PEOPLE] 

"  ...  IF PEOPLE BRING AGAINST ME THE OBJECTION THAT ONLY A JUDICIAL
PROCEDURE COULD PRECISELY WEIGH THE MEASURE OF THE GUILT AND OF ITS
EXPIATION, THEN AGAINST THIS VIEW I LODGE MY MOST SOLEMN PROTEST.  HE
WHO RISES AGAINST GERMANY IS A TRAITOR TO HIS COUNTRY:  AND THE TRAITOR
TO HIS COUNTRY IS NOT TO BE PUNISHED ACCORDING TO THE RANGE AND THE
EXTENT OF HIS ACT, BUT ACCORDING TO THE PURPOSE WHICH THAT ACT HAS
REVEALED."  SPEECH DELIVERED BY HITLER IN THE REICHSTAG ON 13 JULY
1934, 1 HITLER'S SPEECHES (BAYNES ED. 1942), 321-323. 

THE RUSSIAN PURGES OF THE 1930'S ARE REPORTED TO HAVE BEEN GOVERNED
BY A DIRECTIVE INITIATED BY STALIN, WHICH STATED: 

"I.  INVESTIGATIVE AGENCIES ARE DIRECTED TO SPEED UP THE CASES OF
THOSE ACCUSED OF THE PREPARATION OR EXECUTION OF ACTS OF TERROR. 

"II.  JUDICIAL ORGANS ARE DIRECTED NOT TO HOLD UP THE EXECUTION OF
DEATH SENTENCES PERTAINING TO CRIMES OF THIS CATEGORY IN ORDER TO
CONSIDER THE POSSIBILITY OF PARDON, BECAUSE THE PRESIDIUM OF THE
CENTRAL EXECUTIVE COMMITTEE USSR DOES NOT CONSIDER AS POSSIBLE THE
RECEIVING OF PETITIONS OF THIS SORT. 

"III.  THE ORGANS OF THE COMMISSARIAT OF INTERNAL AFFAIRS ARE
DIRECTED TO EXECUTE THE DEATH SENTENCES AGAINST CRIMINALS OF THE ABOVE
MENTIONED CATEGORY IMMEDIATELY AFTER THE PASSAGE OF SENTENCES." 
DEPARTMENT OF STATE PRESS RELEASE, JUNE 4, 1956, P. 15; WASHINGTON POST
& TIMES HERALD, JUNE 6, 1956, P. 11, COLS.  7-8. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

SINCE THE PETITIONER WAS FOUND DEPORTABLE UNDER THE ACT OF OCT. 16,
1918, 40 STAT. 1012, 8 U.S.C. SEC. 137, AS AMENDED, 64 STAT. 1006,
1008, 8 U.S.C. (1946 ED., SUPP. V) SEC. 137-3, HIS DEPORTATION WOULD
FOLLOW AUTOMATICALLY HAD NOT CONGRESS, IN SEC. 244(A)(5) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, ENTRUSTED THE ATTORNEY GENERAL
WITH THE POWER OF RELAXING THIS DIRE CONSEQUENCE BY SUSPENDING THE
DEPORTATION.  66 STAT. 163, 214, 8 U.S.C. SEC. 1254(A)(5).  THIS THE
ATTORNEY GENERAL IS AUTHORIZED TO DO IF THE PETITIONER HAS BEEN PRESENT
IN THE UNITED STATES FOR AT LEAST TEN YEARS SINCE THE GROUNDS FOR HIS
DEPORTATION AROSE, IF HE CAN PROVE THAT DURING ALL OF SUCH PERIOD HE
HAS BEEN AND IS A PERSON OF GOOD MORAL CHARACTER, AND, FINALLY, IF HIS
DEPORTATION WOULD, IN THE OPINION OF THE ATTORNEY GENERAL, "RESULT IN
EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP."  IF THE ATTORNEY GENERAL
FINDS THAT ALL THREE CONDITIONS ARE SATISFIED, HE "MAY, IN HIS
DISCRETION, SUSPEND DEPORTATION."  SUCH IS THE FEATURE OF MITIGATION
WITH WHICH CONGRESS QUALIFIED WHAT OBVIOUSLY IS, AND WAS DESIGNED TO
BE, A VERY DRASTIC EXERCISE OF ITS CONSTITUTIONAL POWER TO TURN ALIENS
OUT OF THE COUNTRY FOR SOME PAST MISDEED, OFTEN UNTHINKING FOOLISHNESS,
AND, IT MAY WELL BE, LONG AFTER GENUINE REPENTANCE AND THE EVOLUTION OF
THE ALIEN INTO A WORTHY MEMBER OF SOCIETY. 

BY THIS PROVISION, CONGRESS PLAINLY RESPONDED TO THE DICTATES OF
HUMANITY.  BUT, JUST AS CONGRESS COULD HAVE EXERCISED TO THE UTMOST ITS
POWER OF CONSTITUTIONAL SEVERITY, SO IT COULD APPROPRIATELY DEFINE THE
MODE FOR ITS ALLEVIATION.  IT HAS SEEN FIT TO MAKE THE ATTORNEY GENERAL
THE AGENT FOR ITS QUALITY OF MERCY, TO BE EXERCISED BY HIM "IN HIS
DISCRETION."  THE POWER OF DISPENSATION GIVEN THE ATTORNEY GENERAL HE
CAN, I HAVE NO DOUBT, WITHHOLD WITHOUT ACCOUNTING TO ANYONE, AND
CERTAINLY WITHOUT RECOURSE TO JUDICIAL REVIEW.  CONGRESS WAS EVIDENTLY
CONTENT TO LEAVE TO THE CONSCIENCE OF THE CHIEF LAW OFFICER OF THE
GOVERNMENT, THE HEAD OF THE DEPARTMENT OF JUSTICE, BOTH THE CARRYING
OUT OF ITS HUMANE PURPOSE AND THE PROTECTION OF THE PUBLIC INTEREST. 

IF THE ATTORNEY GENERAL'S CONSCIENCE IS SATISFIED TO ACT ON
CONSIDERATIONS THAT HE DOES NOT DESIRE TO EXPOSE TO THE LIGHT OF DAY OR
TO IMPART TO AN ALIEN WHOSE LIBERTY MAY BE AT STAKE, THEREBY INVOLVING
THE FATE OF AN INNOCENT FAMILY, CONGRESS LEAVES HIM FREE TO DO SO.  BUT
CONGRESS HAS NOT SEEN FIT TO INVEST HIS SUBORDINATES WITH SUCH
ARBITRARY AUTHORITY OVER THE LIVES OF MEN. 

ONE IS NOT UNMINDFUL OF THE FACT THAT THE ATTORNEY GENERAL IS
BURDENED WITH A VAST RANGE OF DUTIES, AND THAT HE, TOO, HAS ONLY TWENTY
FOUR HOURS IN A DAY.  TO BE SURE, ONE OF HIS PREDECESSORS IN THE
ADMINISTRATION OF OUR IMMIGRATION LAWS, PRESIDENT TAFT'S SECRETARY OF
COMMERCE AND LABOR, HIMSELF EXAMINED EVERY DEPORTATION FILE IN WHICH AN
APPEAL WAS LODGED.  AND ALFRED E. SMITH CANNOT HAVE BEEN THE ONLY
GOVERNOR TO READ THE RECORDS IN THE HUNDREDS OF APPLICATIONS THAT CAME
BEFORE HIM EACH YEAR FOR EXECUTIVE CLEMENCY.  BUT, IF IN HIS WISDOM THE
ATTORNEY GENERAL DEVISES A SYSTEM FOR DELEGATING THE MEANS FOR CARRYING
OUT THE RESPONSIBILITY FOR WHICH CONGRESS HAS GIVEN HIM DISCRETION, HE
CANNOT ALSO DELEGATE HIS DISCRETION.  (THAT THE NATURE OF A DELEGATED
POWER MAY PRECLUDE REDELEGATION, SEE, E.G., THE CANADIAN CASE, ATTORNEY
GENERAL OF CANADA V. BRENT, (1956) 2 D.L.R. (2D) 503, AFFIRMING (1955)
3 D.L.R. 587.) 

IF THE ATTORNEY GENERAL DEVISES, AS HE HAS DEVISED, AN ADMINISTRATIVE
SYSTEM FOR EFFECTUATING SEC. 244(A)(5) OF THE ACT OF 1952,
ADMINISTRATIVE ARBITRARINESS IS RULED OUT.  IF THE ATTORNEY GENERAL
INVOKES THE AID OF ADMINISTRATIVE LAW, AS HE HAS DONE BY ESTABLISHING A
PROCEDURE BEFORE A SPECIAL INQUIRY OFFICER OF THE IMMIGRATION AND
NATURALIZATION SERVICE AND A REVIEW OF THAT OFFICER'S DECISION BY THE
BOARD OF IMMIGRATION APPEALS, THESE TWO AGENCIES OF ADMINISTRATIVE LAW
CANNOT BE AUTHORIZED TO DEFY THE PRESUPPOSITIONS OF A FAIR HEARING. 
THE ATTORNEY GENERAL MAY ACT ON CONFIDENTIAL INFORMATION AND CONGRESS
HAS LEFT HIM TO SQUARE IT WITH HIS CONSCIENCE.  BUT HE CANNOT SHELTER
HIMSELF BEHIND THE APPEARANCE OF LEGAL PROCEDURE - A SYSTEM OF
ADMINISTRATIVE LAW - AND YET INFUSE IT WITH A DENIAL OF WHAT IS BASIC
TO SUCH A SYSTEM.  SEE, E.G., OHIO BELL TELEPHONE CO. V. PUBLIC
UTILITIES COMM'N, 301 U.S. 292, 300. 

PRESIDENT EISENHOWER HAS EXPLAINED WHAT IS FUNDAMENTAL IN ANY
AMERICAN CODE.  A CODE DEVISED BY THE ATTORNEY GENERAL FOR DETERMINING
HUMAN RIGHTS CANNOT BE LESS THAN WILD BILL HICKOK'S CODE IN ABILENE,
KANSAS: 

"IT WAS:  MEET ANYONE FACE TO FACE WITH WHOM YOU DISAGREE.  YOU COULD
NOT SNEAK UP ON HIM FROM BEHIND, OR DO ANY DAMAGE TO HIM, WITHOUT
SUFFERING THE PENALTY OF AN OUTRAGED CITIZENRY.  IF YOU MET HIM FACE TO
FACE AND TOOK THE SAME RISKS HE DID, YOU COULD GET AWAY WITH ALMOST
ANYTHING, AS LONG AS THE BULLET WAS IN THE FRONT.    "AND TODAY,
ALTHOUGH NONE OF YOU HAS THE GREAT FORTUNE, I THINK, OF BEING FROM
ABILENE, KANSAS, YOU LIVE AFTER ALL BY THAT SAME CODE, IN YOUR IDEALS
AND IN THE RESPECT YOU GIVE TO CERTAIN QUALITIES.  IN THIS COUNTRY, IF
SOMEONE DISLIKES YOU, OR ACCUSES YOU, HE MUST COME UP IN FRONT.  HE
CANNOT HIDE BEHIND THE SHADOW.  HE CANNOT ASSASSINATE YOU OR YOUR
CHARACTER FROM BEHIND, WITHOUT SUFFERING THE PENALTIES AN OUTRAGED
CITIZENRY WILL IMPOSE."  PRESS RELEASE OF REMARKS OF THE PRESIDENT, ON
NOVEMBER 23, 1953, ON RECEIVING AMERICA'S DEMOCRATIC LEGACY AWARD AT
DINNER ON THE OCCASION OF THE 40TH ANNIVERSARY OF THE ANTI-DEFAMATION
LEAGUE.    FOR ME, THE PHILOSOPHY EMBODIED IN THESE REMARKS RULES THE
SITUATION BEFORE US.  THE PETITIONER SUSTAINED THE BURDEN WHICH THE
STATUTE PUT UPON HIM TO PROVE HIMSELF DESERVING TO REMAIN IN THIS
COUNTRY AND TO SAVE HIS FAMILY FROM BEING DISRUPTED.  ON THE RECORD,
THE ATTORNEY GENERAL'S SPECIAL INQUIRY OFFICER FOUND THAT THE
RESPONDENT "APPEARS TO BE QUALIFIED FOR SUSPENSION OF DEPORTATION," AND
THIS FINDING WAS NOT UPSET ON APPEAL.  BUT THIS FINDING FOR THE
PETITIONER WAS NULLIFIED ON THE BASIS OF SOME "CONFIDENTIAL
INFORMATION."  THE PETITIONER HAD NO MEANS OF MEETING THIS
"CONFIDENTIAL INFORMATION."  WE CAN TAKE JUDICIAL NOTICE OF THE FACT
THAT IN CONSPICUOUS INSTANCES, NOT NEGLIGIBLE IN NUMBER, SUCH
"CONFIDENTIAL INFORMATION" HAS TURNED OUT TO BE EITHER BASELESS OR
FALSE.  THERE IS NO REASON TO BELIEVE THAT ONLY THESE CONSPICUOUS
INSTANCES ILLUSTRATE THE HAZARDS INHERENT IN TAKING ACTION AFFECTING
THE LIVES OF FELLOW MEN ON THE BASIS OF SUCH INFORMATION.  THE
PROBABILITIES ARE TO THE CONTRARY.  A SYSTEM OF ADMINISTRATIVE LAW
CANNOT JUSTIFY ITSELF ON THE ASSUMPTION THAT THE "CONFIDENTIAL
INFORMATION" AVAILABLE TO THESE INQUIRY OFFICERS AND THE BOARD OF
APPEALS IS IMPREGNABLE OR EVEN LIKELY TO BE TRUE.  WHEN THE ATTORNEY
GENERAL SCRUTINIZES "CONFIDENTIAL INFORMATION," AT ALL EVENTS IT IS THE
ATTORNEY GENERAL WHO DOES SO.  IF HE IS UNABLE TO CARRY OUT THE
DISCRETION VESTED SOLELY IN HIM TO ACT ON WHATEVER HE CHOOSES TO ACT
UPON, HE MUST EITHER DEVISE A SIFTING PROCESS THAT MEETS THE ELEMENTARY
DECENCIES OF PROCEDURE OR ADVISE CONGRESS OF HIS INABILITY TO CARRY OUT
THE EXTRAORDINARY RESPONSIBILITY WHICH IT HAS REPOSED IN HIM AND NOT IN
HIS SUBORDINATES. 

I WOULD REVERSE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE STATEMENT THAT PRESIDENT EISENHOWER MADE IN 1953 ON THE AMERICAN
CODE OF FAIR PLAY IS MORE THAN INTERESTING AMERICANA.  AS MY BROTHER
FRANKFURTER SAYS, IT IS AMERICANA THAT IS HIGHLY RELEVANT TO OUR
PRESENT PROBLEM.  THE PRESIDENT SAID:  "IN THIS COUNTRY, IF SOMEONE
DISLIKES YOU, OR ACCUSES YOU, HE MUST COME UP IN FRONT.  HE CANNOT HIDE
BEHIND THE SHADOW.  HE CANNOT ASSASSINATE YOU OR YOUR CHARACTER FROM
BEHIND, WITHOUT SUFFERING THE PENALTIES AN OUTRAGED CITIZENRY WILL
IMPOSE."  (FN1) 

THAT BIT OF AMERICANA IS RELEVANT HERE BECAUSE WE HAVE A QUESTION AS
TO WHAT A "HEARING" IS IN THE AMERICAN MEANING OF THE WORD.  FAIRNESS,
IMPLICIT IN OUR NOTIONS OF DUE PROCESS, REQUIRES THAT ANY "HEARING" BE
FULL AND OPEN WITH AN OPPORTUNITY TO KNOW THE CHARGE AND THE ACCUSERS,
TO REPLY TO THE CHARGE, AND TO MEET THE ACCUSERS.  AND WHEN CONGRESS
PROVIDES FOR A HEARING, AS IT IMPLICITLY HAS IN SEC. 244 OF THE PRESENT
ACT, IT SHOULD BE ASSUMED THAT CONGRESS HAS THE SAME LIVELY SENSE OF
THE REQUIREMENTS OF FAIR PLAY AS THE EISENHOWER CODE DEMANDS. 

THE PHILOSOPHY OF THE FULL HEARING, ESPECIALLY AS IT INVOLVES THE
RIGHT TO MEET THE ACCUSERS, HAS BEEN PUT IN CLASSICAL WORDS BY
PROFESSOR ZECHARIAH CHAFEE, JR., IN HIS RECENT BOOK THE BLESSINGS OF
LIBERTY (1956), P. 35. 

"ONE IMPORTANT BENEFIT FROM CONFRONTING THE SUSPECT WITH HIS ACCUSERS
IS THE OPPORTUNITY TO CROSS-EXAMINE THEM AND RIGOROUSLY TEST ANY
DUBIOUS STATEMENT.  AS OLD SIR MATTHEW HALE SAYS, IT 'BEATS AND BOULTS
OUT THE TRUTH MUCH BETTER.'  ADD TO THAT THE OLD-FASHIONED VALUE OF
PUTTING PEOPLE FACE TO FACE OUT IN THE OPEN.  ACCUSERS WHO SECRETLY
CONFER IN PRIVATE WITH AN OFFICIAL OR TWO AND A COUPLE OF CLERKS MAY,
AS IN HALE'S TIME, 'OFTENTIMES DELIVER THAT WHICH THEY WILL BE ASHAMED
TO TESTIFY PUBLICLY.'  AN HONEST WITNESS MAY FEEL QUITE DIFFERENTLY
WHEN HE HAS TO REPEAT HIS STORY LOOKING AT THE MAN WHOM HE WILL HARM
GREATLY BY DISTORTING OR MISTAKING THE FACTS.  HE CAN NOW UNDERSTAND
WHAT SORT OF HUMAN BEING THAT MAN IS.  AS FOR THE FALSE WITNESS, THE
TRIBUNAL CAN LEARN EVER SO MUCH MORE BY LOOKING AT HIM THAN BY READING
AN F.B.I. ABSTRACT OF HIS STORY.  THE PATHOLOGICAL LIAR AND THE
PERSONAL ENEMY CAN NO LONGER HIDE BEHIND A PIECE OF PAPER." 

AND SEE PETERS V. HOBBY, 349 U.S. 331, 350-352; O'BRIAN, NATIONAL
SECURITY AND INDIVIDUAL FREEDOM (1955), PP. 61-63. 

HARRY P. CAIN, MEMBER OF THE SUBVERSIVE ACTIVITIES CONTROL BORAD,
RECENTLY JOINED THE PRESIDENT IN ENDORSING THIS CODE OF FAIR PLAY:
(FN2) 

"IN ALL OF OUR TRADITIONAL EFFORTS TO PROTECT THE INDIVIDUAL AGAINST
OPPRESSION AND FALSE CONVICTION BY THE STATE, WE HAVE RELIED BASICALLY
AND PRIMARILY ON CONFRONTATION AND CROSS EXAMINATION.  BY NO OTHER
MEANS CAN THOSE WHO MUST JUDGE THEIR FELLOW MAN MINIMIZE TO THE FULLEST
AND DESIRED EXTENT THE MISTAKES WHICH HUMANS MAKE.  WITHOUT RECOURSE TO
THESE MEANS, IT IS IMPOSSIBLE FOR ANYONE ACCUSED OF ANYTHING TO PROTECT
HIMSELF FULLY AGAINST ENEMIES WHOSE EVIDENCE MAY CONSIST OF NOTHING
MORE THAN MALICE, VINDICTIVENESS, MISTAKEN IDENTITY, INTOLERANCE,
PREJUDICE, OR A PERVERTED DESIRE TO DESTROY." 

A HEARING IS NOT A HEARING IN THE AMERICAN SENSE IF FACELESS
INFORMERS OR CONFIDENTIAL INFORMATION MAY BE USED TO DEPRIVE A MAN OF
HIS LIBERTY.  THAT KIND OF HEARING IS SO UN-AMERICAN THAT WE SHOULD
LEAN OVER BAKCWARDS TO AVOID IMPUTING TO CONGRESS A PURPOSE TO SANCTION
IT UNDER SEC. 244. 

FN1  THE ENTIRE STATEMENT MADE AT THE B'NAI B'RITH DINNER IN
WASHINGTON, D.C., NOVEMBER 23, 1953, READS AS FOLLOWS: 

"WHY ARE WE PROUD?  WE ARE PROUD, FIRST OF ALL, BECAUSE FROM THE
BEGINNING OF THIS NATION, A MAN CAN WALK UPRIGHT, NO MATTER WHO HE IS,
OR WHO SHE IS.  HE CAN WALK UPRIGHT AND MEET HIS FRIEND - OR HIS ENEMY;
AND HE DOES NOT FEEL THAT BECAUSE THAT ENEMY MAY BE IN A POSITION OF
GREAT POWER THAT HE CAN BE SUDDENLY THROWN IN JAIL TO ROT THERE WITHOUT
CHARGES AND WITH NO RECOURSE TO JUSTICE.  WE HAVE THE HABEAS CORPUS
ACT, AND WE RESPECT IT. 

"I WAS RAISED IN A LITTLE TOWN OF WHICH MOST OF YOU HAVE NEVER
HEARD.  BUT IN THE WEST IT IS A FAMOUS PLACE.  IT IS CALLED ABILENE,
KANSAS.  WE HAD AS OUR MARSHAL FOR A LONG TIME A MAN NAMED WILD BILL
HICKOCK.  IF YOU DON'T KNOW ANYTHING ABOUT HIM, READ YOUR WESTERNS
MORE.  NOW THAT TOWN HAD A CODE, AND I WAS RAISED AS A BOY TO PRIZE
THAT CODE. 

"IT WAS:  MEET ANYONE FACE TO FACE WITH WHOM YOU DISAGREE.  YOU COULD
NOT SNEAK UP ON HIM FROM BEHIND, OR DO ANY DAMAGE TO HIM, WITHOUT
SUFFERING THE PENALTY OF AN OUTRAGED CITIZENRY.  IF YOU MET HIM FACE TO
FACE AND TOOK THE SAME RISKS HE DID, YOU COULD GET AWAY WITH ALMOST
ANYTHING, AS LONG AS THE BULLET WAS IN THE FRONT. 

"AND TODAY, ALTHOUGH NONE OF YOU HAS THE GREAT FORTUNE, I THINK, OF
BEING FROM ABILENE, KANSAS, YOU LIVE AFTER ALL BY THAT SAME CODE, IN
YOUR IDEALS AND IN THE RESPECT YOU GIVE TO CERTAIN QUALITIES.  IN THIS
COUNTRY, IF SOMEONE DISLIKES YOU, OR ACCUSES YOU, HE MUST COME UP IN
FRONT.  HE CANNOT HIDE BEHIND THE SHADOW.  HE CANNOT ASSASSINATE YOU OR
YOUR CHARACTER FROM BEHIND, WITHOUT SUFFERING THE PENALTIES AN OUTRAGED
CITIZENRY WILL IMPOSE." 

FN2  ADDRESS BEFORE NEW YORK CIVIL LIBERTIES UNION, NEW YORK CITY,
FEBRUARY 22, 1956. 
..END :



















UNITED STATES V. E.I. DU PONT DE NEMOURS & CO. 351 U.S. 377 


NO. 5.  ARGUED OCTOBER 11, 1955.  - DECIDED JUNE 11, 1956.  - 118 F.
SUPP. 41, AFFIRMED. 


IN A CIVIL ACTION UNDER SEC. 4 OF THE SHERMAN ACT, THE GOVERNMENT
CHARGED THAT APPELLEE HAD MONOPOLIZED INTERSTATE COMMERCE IN CELLOPHANE
IN VIOLATION OF SEC. 2 OF THE ACT.  DURING THE RELEVANT PERIOD,
APPELLEE PRODUCED ALMOST 75% OF THE CELLOPHANE SOLD IN THE UNITED
STATES; BUT CELLOPHANE CONSTITUTED LESS THAN 20% OF ALL FLEXIBLE
PACKAGING MATERIALS SOLD IN THE UNITED STATES.  THE TRIAL COURT FOUND
THAT THE RELEVANT MARKET FOR DETERMINING THE EXTENT OF APPELLEE'S
MARKET CONTROL WAS THE MARKET FOR FLEXIBLE PACKAGING MATERIALS AND THAT
COMPETITION FROM OTHER MATERIALS IN THAT MARKET PREVENTED APPELLEE FROM
POSSESSING MONOPOLY POWERS IN ITS SALES OF CELLOPHANE.  ACCORDINGLY, IT
DISMISSED THE COMPLAINT.  HELD:  THE JUDGMENT IS AFFIRMED.  PP. 378
404. 

(A)  THE ULTIMATE CONSIDERATION IN DETERMINING WHETHER AN ALLEGED
MONOPOLIST VIOLATES SEC. 2 OF THE SHERMAN ACT IS WHETHER THE DEFENDANT
CONTROLS PRICES AND COMPETITION IN THE MARKET FOR SUCH PART OF TRADE OR
COMMERCE AS HE IS CHARGED WITH MONOPOLIZING.  P. 380. 

(B)  A PARTY HAS MONOPOLY POWER CONTRARY TO SEC. 2 OF THE SHERMAN ACT
IF IT HAS, OVER "ANY PART OF THE TRADE OR COMMERCE AMONG THE SEVERAL
STATES," A POWER OF CONTROLLING PRICES OR UNREASONABLY RESTRICTING
COMPETITION.  PP. 389-394. 

(C)  DETERMINATION OF THE COMPETITIVE MARKET FOR COMMODITIES DEPENDS
UPON HOW DIFFERENT FROM ONE ANOTHER ARE THE OFFERED COMMODITIES IN
CHARACTER OR USE, HOW FAR BUYERS WILL GO TO SUBSTITUTE ONE COMMODITY
FOR ANOTHER.  P. 393. 

(D)  IT IS NOT A PROPER INTERPRETATION OF THE SHERMAN ACT TO REQUIRE
THAT PRODUCTS BE FUNGIBLE TO BE CONSIDERED IN THE RELEVANT MARKET.  P.
394. 

(E)  WHERE THERE ARE MARKET ALTERNATIVES THAT BUYERS MAY READILY USE
FOR THEIR PURPOSES, ILLEGAL MONOPOLY DOES NOT EXIST MERELY BECAUSE THE
PRODUCT SAID TO BE MONOPOLIZED DIFFERS FROM OTHERS.  P. 394. 

(F)  IN CONSIDERING WHAT IS THE RELEVANT MARKET FOR DETERMINING THE
CONTROL OF PRICES AND COMPETITION, NO MORE DEFINITE RULE CAN BE
DECLARED THAN THAT COMMODITIES REASONABLY INTERCHANGEABLE BY CONSUMERS
FOR THE SAME PURPOSES MAKE UP THAT "PART OF THE TRADE OR COMMERCE"
MONOPOLIZATION OF WHICH MAY BE ILLEGAL.  P. 395. 

(G)  CELLOPHANE'S INTERCHANGEABILITY WITH NUMEROUS OTHER MATERIALS
SUFFICES TO MAKE IT A PART OF THE MARKET FOR FLEXIBLE PACKAGING
MATERIALS.  PP. 395-400. 

(H)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE
VARIATIONS IN PRICE BETWEEN CELLOPHANE AND OTHER FLEXIBLE PACKAGING
MATERIALS PREVENT THEM FROM BEING COMPETITIVE OR GAVE APPELLEE MONOPOLY
POWER OVER PRICES.  PP. 400-401. 

(I)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT APPELLEE HAS
EXCLUDED COMPETITORS FROM THE FLEXIBLE PACKAGING MATERIAL MARKET.  PP.
402-404. 

UNITED STATES V. E.I. DU PONT DE NEMOURS & CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS CIVIL ACTION UNDER SEC. 4 OF THE
SHERMAN ACT AGAINST E.I.  DU PONT DE NEMOURS AND COMPANY.  THE
COMPLAINT, FILED DECEMBER 13, 1947, IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA, CHARGED DU PONT WITH MONOPOLIZING,
ATTEMPTING TO MONOPOLIZE AND CONSPIRACY TO MONOPOLIZE INTERSTATE
COMMERCE IN CELLOPHANE AND CELLULOSIC CAPS AND BANDS IN VIOLATION OF
SEC. 2 OF THE SHERMAN ACT.  RELIEF BY INJUNCTION WAS SOUGHT AGAINST
DEFENDANTS AND ITS OFFICERS, FORBIDDING MONOPOLIZING OR ATTEMPTING TO
MONOPOLIZE INTERSTATE TRADE IN CELLOPHANE.  THE PRAYER ALSO SOUGHT
ACTION TO DISSIPATE THE EFFECT OF THE MONOPOLIZATION BY DIVESTITURE OR
OTHER STEPS.  ON DEFENDANT'S MOTION UNDER 28 U.S.C.  SEC. 1404(A), THE
CASE WAS TRANSFERRED TO THE DISTRICT OF DELAWARE.  AFTER A LENGTHY
TRIAL, JUDGMENT WAS ENTERED FOR DU PONT ON ALL ISSUES.  (FN1)

THE GOVERNMENT'S DIRECT APPEAL HERE DOES NOT CONTEST THE FINDINGS
THAT RELATE TO CAPS AND BANDS, NOR DOES IT RAISE ANY ISSUE CONCERNING
THE ALLEGED ATTEMPT TO MONOPOLIZE OR CONSPIRACY TO MONOPOLIZE
INTERSTATE COMMERCE IN CELLOPHANE.  THE APPEAL, AS SPECIFICALLY STATED
BY THE GOVERNMENT, "ATTACKS ONLY THE RULING THAT DU PONT HAS NOT
MONOPOLIZED TRADE IN CELLOPHANE."  AT ISSUE FOR DETERMINATION IS ONLY
THIS ALLEGED VIOLATION BY DU PONT OF SEC. 2 OF THE SHERMAN ACT.  (FN2) 

DURING THE PERIOD THAT IS RELEVANT TO THIS ACTION, DU PONT PRODUCED
ALMOST 75% OF THE CELLOPHANE SOLD IN THE UNITED STATES, AND CELLOPHANE
CONSTITUTED LESS THAN 20% OF ALL "FLEXIBLE PACKAGING MATERIAL" SALES. 
THIS WAS THE DESIGNATION ACCEPTED AT THE TRIAL FOR THE MATERIALS LISTED
IN FINDING 280, APPENDIX A, THIS OPINION, POST, P. 405. 

THE GOVERNMENT CONTENDS THAT, BY SO DOMINATING CELLOPHANE PRODUCTION,
DU PONT MONOPOLIZED A "PART OF THE TRADE OR COMMERCE" IN VIOLATION OF
SEC. 2.  RESPONDENT AGREES THAT CELLOPHANE IS A PRODUCT WHICH
CONSTITUTES "A 'PART' OF COMMERCE WITHIN THE MEANING OF SECTION 2."  DU
PONT BRIEF, PP. 16, 79.  BUT IT CONTENDS THAT THE PROHIBITION OF SEC. 2
AGAINST MONOPOLIZATION IS NOT VIOLATED BECAUSE IT DOES NOT HAVE THE
POWER TO CONTROL THE PRICE OF CELLOPHANE OR TO EXCLUDE COMPETITORS FROM
THE MARKET IN WHICH CELLOPHANE IS SOLD.  THE COURT BELOW FOUND THAT THE
"RELEVANT MARKET FOR DETERMINING THE EXTENT OF DU PONT'S MARKET CONTROL
IS THE MARKET FOR FLEXIBLE PACKAGING MATERIALS," AND THAT COMPETITION
FROM THOSE OTHER MATERIALS PREVENTED DU PONT FROM POSSESSING MONOPOLY
POWERS IN ITS SALES OF CELLOPHANE.  FINDING 37. 

THE GOVERNMENT ASSERTS THAT CELLOPHANE AND OTHER WRAPPING MATERIALS
ARE NEITHER SUBSTANTIALLY FUNGIBLE NOR LIKE PRICED.  FOR THESE REASONS,
IT ARGUES THAT THE MARKET FOR OTHER WRAPPINGS IS DISTINCT FROM THE
MARKET FOR CELLOPHANE AND THAT THE COMPETITION AFFORDED CELLOPHANE BY
OTHER WRAPPINGS IS NOT STRONG ENOUGH TO BE CONSIDERED IN DETERMINING
WHETHER DU PONT HAS MONOPOLY POWERS.  MARKET DELIMITATION IS NECESSARY
UNDER DU PONT'S THEORY TO DETERMINE WHETHER AN ALLEGED MONOPOLIST
VIOLATES SEC. 2.  THE ULTIMATE CONSIDERATION IN SUCH A DETERMINATION IS
WHETHER THE DEFENDANTS CONTROL THE PRICE AND COMPETITION IN THE MARKET
FOR SUCH PART OF TRADE OR COMMERCE AS THEY ARE CHARGED WITH
MONOPOLIZING.  EVERY MANUFACTURER IS THE SOLE PRODUCER OF THE
PARTICULAR COMMODITY IT MAKES BUT ITS CONTROL IN THE ABOVE SENSE OF THE
RELEVANT MARKET DEPENDS UPON THE AVAILABILITY OF ALTERNATIVE
COMMODITIES FOR BUYERS:  I.E., WHETHER THERE IS A CROSS-ELASTICITY OF
DEMAND BETWEEN CELLOPHANE AND THE OTHER WRAPPINGS.  THIS
INTERCHANGEABILITY IS LARGELY GAUGED BY THE PURCHASE OF COMPETING
PRODUCTS FOR SIMILAR USES CONSIDERING THE PRICE, CHARACTERISTICS AND
ADAPTABILITY OF THE COMPETING COMMODITIES.  THE COURT BELOW FOUND THAT
THE FLEXIBLE WRAPPINGS AFFORDED SUCH ALTERNATIVES.  THIS COURT MUST
DETERMINE WHETHER THE TRIAL COURT ERRED IN ITS ESTIMATE OF THE
COMPETITION AFFORDED CELLOPHANE BY OTHER MATERIALS. 

THE BURDEN OF PROOF, OF COURSE, WAS UPON THE GOVERNMENT TO ESTABLISH
MONOPOLY.  SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416,
423, 427.  THIS THE TRIAL COURT HELD THE GOVERNMENT FAILED TO DO, UPON
FINDINGS OF FACT AND LAW STATED AT LENGTH BY THAT COURT.  FOR THE
UNITED STATES TO SUCCEED IN THIS COURT NOW, IT MUST SHOW THAT ERRONEOUS
LEGAL TESTS WERE APPLIED TO ESSENTIAL FINDINGS OF FACT OR THAT THE
FINDINGS THEMSELVES WERE "CLEARLY ERRONEOUS' WITHIN OUR RULINGS ON RULE
52(A) OF THE RULES OF CIVIL PROCEDURE.  SEE UNITED STATES V. UNITED
STATES GYPSUM CO., 333 U.S. 364, 393-395.  WE DO NOT TRY THE FACTS OF
CASES DE NOVO.  TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S.
593, 597.  (FN3) 

TWO ADDITIONAL QUESTIONS WERE RAISED IN THE RECORD AND DECIDED BY THE
COURT BELOW.  THAT COURT FOUND THAT, EVEN IF DU PONT DID POSSESS
MONOPOLY POWER OVER SALES OF CELLOPHANE, IT WAS NOT SUBJECT TO SHERMAN
ACT PROSECUTION, BECAUSE (1) THE ACQUISITION OF THAT POWER WAS
PROTECTED BY PATENTS, AND (2) THAT POWER WAS ACQUIRED SOLELY THROUGH DU
PONT'S BUSINESS EXPERTNESS.  IT WAS THRUST UPON DU PONT.  118 F. SUPP.,
AT 213-218. 

SINCE THE GOVERNMENT SPECIFICALLY EXCLUDES ATTEMPTS AND CONSPIRACIES
TO MONOPOLIZE FROM CONSIDERATION, A CONCLUSION THAT DU PONT HAS NO
MONOPOLY POWER WOULD OBVIATE EXAMINATION OF THESE LAST TWO ISSUES. 

I. FACTUAL BACKGROUND.  - FOR CONSIDERATION OF THE ISSUE AS TO
MONOPOLIZATION, A GENERAL SUMMARY OF THE DEVELOPMENT OF CELLOPHANE IS
USEFUL. 

IN THE EARLY 1900'S, JACQUES BRANDENBERGER, A SWISS CHEMIST,
ATTEMPTED TO MAKE TABLECLOTHS IMPERVIOUS TO DIRT BY SPRAYING THEM WITH
LIQUID VISCOSE (A CELLULOSE SOLUTION AVAILABLE IN QUANTITY FROM WOOD
PULP, FINDING 361) AND BY COAGULATING THIS COATING.  HIS IDEA FAILED,
BUT HE NOTED THAT THE COATING PEELED OFF IN A TRANSPARENT FILM.  THIS
FIRST "CELLOPHANE" WAS THICK, HARD, AND NOT PERFECTLY TRANSPARENT, BUT
BRANDENBERGER APPARENTLY FORESAW COMMERCIAL POSSIBILITIES IN HIS
DISCOVERY.  BY 1908 HE DEVELOPED THE FIRST MACHINE FOR THE MANUFACTURE
OF TRANSPARENT SHEETS OF REGENERATED CELLULOSE.  THE 1908 PRODUCT WAS
NOT SATISFACTORY, BUT BY 1912 BRANDENBERGER WAS MAKING A SALEABLE THIN
FLEXIBLE FILM USED IN GAS MASKS.  HE OBTAINED PATENTS TO COVER THE
MACHINERY AND THE ESSENTIAL IDEAS OF HIS PROCESS. 

IT SEEMS TO BE AGREED, HOWEVER, THAT THE DISCLOSURES OF THESE EARLY
PATENTS WERE NOT SUFFICIENT TO MAKE POSSIBLE THE MANUFACTURE OF
COMMERCIAL CELLOPHANE.  THE INADEQUACY OF THE PATENTS IS PARTIALLY
ATTRIBUTED TO THE FACT THAT THE ESSENTIAL MACHINE (THE HOPPER) WAS
IMPROVED AFTER IT WAS PATENTED.  BUT MORE SIGNIFICANT WAS THE FAILURE
OF THESE PATENTS TO DISCLOSE THE ACTUAL TECHNIQUE OF THE PROCESS.  THIS
TECHNIQUE INCLUDED THE OPERATIONAL DATA ACQUIRED BY EXPERIMENTATION. 
(FN4) 

IN 1917 BRANDENBERGER ASSIGNED HIS PATENT TO LA CELLOPHANE SOCIETE
ANONYME AND JOINED THAT ORGANIZATION.  THEREAFTER DEVELOPMENTS IN THE
PRODUCTION OF CELLOPHANE SOMEWHAT PARALLELED THOSE TAKING PLACE IN
ARTIFICIAL TEXTILES.  CHEMICAL SCIENCE FURNISHED THE KNOWLEDGE FOR
PERFECTING THE NEW PRODUCTS.  THE SUCCESS OF THE ARTIFICIAL PRODUCTS
HAS BEEN ENORMOUS.  DU PONT WAS AN AMERICAN LEADER IN THE FIELD OF
SYNTHETICS AND LEARNED OF CELLOPHANE'S SUCCESSES THROUGH AN ASSOCIATE,
COMPTOIR DES TEXTILES ARTIFICIEL. 

IN 1923 DU PONT ORGANIZED WITH LA CELLOPHANE AN AMERICAN COMPANY FOR
THE MANUFACTURE OF PLAIN CELLOPHANE.  THE UNDISPUTED FINDINGS ARE
THAT: 

"ON DECEMBER 26, 1923, AN AGREEMENT WAS EXECUTED BETWEEN DUPONT
CELLOPHANE COMPANY AND LA CELLOPHANE BY WHICH LA CELLOPHANE LICENSED
DUPONT CELLOPHANE COMPANY EXCLUSIVELY UNDER ITS UNITED STATES
CELLOPHANE PATENTS, AND GRANTED DUPONT CELLOPHANE COMPANY THE EXCLUSIVE
RIGHT TO MAKE AND SELL IN NORTH AND CENTRAL AMERICA UNDER LA
CELLOPHANE'S SECRET PROCESSES FOR CELLOPHANE MANUFACTURE.   DUPONT
CELLOPHANE COMPANY GRANTED TO LA CELLOPHANE EXCLUSIVE RIGHTS FOR THE
REST OF THE WORLD UNDER ANY CELLOPHANE PATENTS OR PROCESSES DUPONT
CELLOPHANE COMPANY MIGHT DEVELOP."  FINDING 24. 

SUBSEQUENTLY DU PONT AND LA CELLOPHANE LICENSED SEVERAL FOREIGN
COMPANIES, ALLOWING THEM TO MANUFACTURE AND VEND CELLOPHANE IN LIMITED
AREAS.  FINDING 601.  TECHNICAL EXCHANGE AGREEMENTS WITH THESE
COMPANIES WERE ENTERED INTO AT THE SAME TIME.  HOWEVER, IN 1940, DU
PONT NOTIFIED THESE FOREIGN COMPANIES THAT SALES MIGHT BE MADE IN ANY
COUNTRY, (FN5) AND BY 1948 ALL THE TECHNICAL EXCHANGE AGREEMENTS WERE
CANCELED. 

SYLVANIA, AN AMERICAN AFFILIATE OF A BELGIAN PRODUCER OF CELLOPHANE
NOT COVERED BY THE LICENSE AGREEMENTS ABOVE REFERRED TO, BEGAN THE
MANUFACTURE OF CELLOPHANE IN THE UNITED STATES IN 1930.  LITIGATION
BETWEEN THE FRENCH AND BELGIAN COMPANIES RESULTED IN A SETTLEMENT
WHEREBY LA CELLOPHANE CAME TO HAVE A STOCK INTEREST IN SYLVANIA,
CONTRARY TO THE LA CELLOPHANE-DU PONT AGREEMENT.  THIS RESULTED IN
ADJUSTMENTS AS COMPENSATION FOR THE INTRUSION INTO UNITED STATES OF LA
CELLOPHANE THAT EXTENDED DU PONT'S LIMITED TERRITORY.  THE DETAILS DO
NOT HERE SEEM IMPORTANT.  SINCE 1934 SYLVANIA HAS PRODUCED ABOUT 25% OF
UNITED STATES CELLOPHANE. 

AN IMPORTANT FACTOR IN THE GROWTH OF CELLOPHANE PRODUCTION AND SALES
WAS THE PERFECTION OF MOISTUREPROOF CELLOPHANE, A SUPERIOR PRODUCT OF
DU PONT RESEARCH AND PATENTED BY THAT COMPANY THROUGH A 1927
APPLICATION.  PLAIN CELLOPHANE HAS LITTLE RESISTANCE TO THE PASSAGE OF
MOISTURE VAPOR.  MOISTUREPROOF CELLOPHANE HAS A COMPOSITION ADDED WHICH
KEEPS MOISTURE IN AND OUT OF THE PACKED COMMODITY.  THIS PATENTED TYPE
OF CELLOPHANE HAS HAD A DEMAND WITH MUCH MORE RAPID GROWTH THAN THE
PLAIN. 

IN 1931 SYLVANIA BEGAN THE MANUFACTURE OF MOISTUREPROOF CELLOPHANE
UNDER ITS OWN PATENTS.  AFTER NEGOTIATIONS OVER PATENT RIGHTS, DU PONT
IN 1933 LICENSED SYLVANIA TO MANUFACTURE AND SELL MOISTUREPROOF
CELLOPHANE PRODUCED UNDER THE DU PONT PATENTS AT A ROYALTY OF 2% OF
SALES.  THESE LICENSES, WITH THE PLAIN CELLOPHANE LICENSES FROM THE
BELGIAN COMPANY, MADE SYLVANIA A FULL CELLOPHANE COMPETITOR, LIMITED ON
MOISTUREPROOF SALES BY THE TERMS OF THE LICENSES TO 20% OF THE COMBINED
SALES OF THE TWO COMPANIES OF THAT TYPE BY THE PAYMENT OF A PROHIBITIVE
ROYALTY ON THE EXCESS.  FINDING 552.  THERE WAS NEVER AN EXCESS
PRODUCTION.  THE LIMITING CLAUSE WAS DROPPED ON JANUARY 1, 1945, AND
SYLVANIA WAS ACQUIRED IN 1946 BY THE AMERICAN VISCOSE CORPORATION WITH
ASSETS OF OVER TWO HUNDRED MILLION DOLLARS. 

BETWEEN 1928 AND 1950, DU PONT'S SALES OF PLAIN CELLOPHANE INCREASED
FROM $3,131,608 TO $9,330,776.  MOISTUREPROOF SALES INCREASED FROM
$603,222 TO $89,850,416, ALTHOUGH PRICES WERE CONTINUOUSLY REDUCED. 
FINDING 337.  IT COULD NOT BE SAID THAT THIS IMMENSE INCREASE IN USE
WAS SOLELY OR EVEN LARGELY ATTRIBUTABLE TO THE SUPERIOR QUALITY OF
CELLOPHANE OR TO THE TECHNIQUE OR BUSINESS ACUMEN OF DU PONT, THOUGH
DOUBTLESS THOSE FACTORS WERE IMPORTANT.  THE GROWTH WAS A PART OF THE
EXPANSION OF THE COMMODITY-PACKAGING HABITS OF BUSINESS, A BY-PRODUCT
OF GENERAL EFFICIENT COMPETITIVE MERCHANDISING TO MEET MODERN DEMANDS. 
THE PROFITS, WHICH WERE LARGE, APPARENTLY AROSE FROM THIS TREND IN
MARKETING, THE DEVELOPMENT OF THE INDUSTRIAL USE OF CHEMICAL RESEARCH
AND PRODUCTION OF SYNTHETICS, RATHER THAN FROM ELIMINATION OF OTHER
PRODUCERS FROM THE RELEVANT MARKET.  THAT MARKET IS DISCUSSED LATER AT
P. 394.  TABLES APPEARING AT THE END OF THIS OPINION (APPENDIX A,
FINDINGS 279-292, INCLUSIVE, POST, PP. 405-410) SHOW THE USES OF
CELLOPHANE IN COMPARISON WITH OTHER WRAPPINGS.  (FN6)  SEE THE
DISCUSSION, INFRA, P. 399 ET SEQ. 

II.  THE SHERMAN ACT AND THE COURTS.  - THE SHERMAN ACT HAS RECEIVED
LONG AND CAREFUL APPLICATION BY THIS COURT TO ACHIEVE FOR THE NATION
THE FREEDOM OF ENTERPRISE FROM MONOPOLY OR RESTRAINT ENVISAGED BY THE
CONGRESS THAT PASSED THE ACT IN 1890.  BECAUSE THE ACT IS COUCHED IN
BROAD TERMS, IT IS ADAPTABLE TO THE CHANGING TYPES OF COMMERCIAL
PRODUCTION AND DISTRIBUTION THAT HAVE EVOLVED SINCE ITS PASSAGE.  CHIEF
JUSTICE HUGHES WROTE FOR THE COURT THAT "AS A CHARTER OF FREEDOM, THE
ACT HAS A GENERALITY AND ADAPTABILITY COMPARABLE TO THAT FOUND TO BE
DESIRABLE IN CONSTITUTIONAL PROVISIONS."  APPALACHIAN COALS, INC. V.
UNITED STATES, 288 U.S. 344, 359-360.  COMPARE ON REMEDY, JUDGE
WYZANSKI IN UNITED STATES V. UNITED SHOE MACHINERY CORP., 110 F. SUPP.
295, 348.  IT WAS SAID IN STANDARD OIL CO. V. UNITED STATES, 221 U.S.
1, 50, THAT FEAR OF THE POWER OF RAPID ACCUMULATIONS OF INDIVIDUAL AND
CORPORATE WEALTH FROM THE TRADE AND INDUSTRY OF A DEVELOPING NATIONAL
ECONOMY CAUSED ITS PASSAGE.  UNITS OF TRADERS AND PRODUCERS SNOWBALLED
BY COMBINING INTO SO-CALLED "TRUSTS."  COMPETITION WAS THREATENED. 
CONTROL OF PRICES WAS FEARED.  INDIVIDUAL INITIATIVE WAS DAMPENED. 
WHILE THE ECONOMIC PICTURE HAS CHANGED, LARGE AGGREGATIONS OF PRIVATE
CAPITAL, WITH POWER ATTRIBUTES, CONTINUE.  MERGERS GO FORWARD. 
INDUSTRIES SUCH AS STEEL, AUTOMOBILES, TIRES, CHEMICALS, HAVE ONLY A
FEW PRODUCTION ORGANIZATIONS.  A CONSIDERABLE SIZE IS OFTEN ESSENTIAL
FOR EFFICIENT OPERATION IN RESEARCH, MANUFACTURE AND DISTRIBUTION. 
JUDICIAL CONSTRUCTION OF ANTITRUST LEGISLATION HAS GENERALLY BEEN LEFT
UNCHANGED BY CONGRESS.  THIS IS TRUE OF THE RULE OF REASON.  (FN7)
WHILE IT IS FAIR TO SAY THAT THE RULE IS IMPRECISE, ITS APPLICATION IN
SHERMAN ACT LITIGATION, AS DIRECTED AGAINST ENHANCEMENT OF PRICE OR
THROTTLING OF COMPETITION, HAS GIVEN A WORKABLE CONTENT TO ANTITRUST
LEGISLATION.  SEE NOTE 18, INFRA.  IT WAS JUDICIALLY DECLARED A PROPER
INTERPRETATION OF THE SHERMAN ACT IN 1911, WITH A STRONG, CLEAR-CUT
DISSENT CHALLENGING ITS SOUNDNESS ON THE GROUND THAT THE SPECIFIC WORDS
OF THE ACT COVERED EVERY CONTRACT THAT TENDED TO RESTRAIN OR
MONOPOLIZE.  (FN8)  THIS COURT HAS NOT RECEDED FROM ITS POSITION ON THE
RULE.  (FN9)  THERE IS NOT, WE THINK, ANY INCONSISTENCY BETWEEN IT AND
THE DEVELOPMENT OF THE JUDICIAL THEORY THAT AGREEMENTS AS TO
MAINTENANCE OF PRICES OR DIVISION OF TERRITORY ARE IN THEMSELVES A
VIOLATION OF THE SHERMAN ACT.  (FN10)  IT IS LOGICAL THAT SOME
AGREEMENTS AND PRACTICES ARE INVALID PER SE, WHILE OTHERS ARE ILLEGAL
ONLY AS APPLIED TO PARTICULAR SITUATIONS.  (FN11) 

DIFFICULTIES OF INTERPRETATION HAVE ARISEN IN THE APPLICATION OF THE
SHERMAN ACT IN VIEW OF THE TECHNICAL CHANGES IN PRODUCTION OF
COMMODITIES AND THE NEW DISTRIBUTION PRACTICES.  (FN12)  THEY HAVE
CALLED FORTH REAPPRAISAL OF THE EFFECT OF THE ACT BY BUSINESS AND
GOVERNMENT.  (FN13)  THAT REAPPRAISAL HAS SO FAR LEFT THE PROBLEMS WITH
WHICH WE ARE HERE CONCERNED TO THE COURTS RATHER THAN TO ADMINISTRATIVE
AGENCIES.  CF. FEDERAL TRADE COMMISSION ACT, 38 STAT. 721.  IT IS TRUE
THAT CONGRESS HAS MADE EXCEPTIONS TO THE GENERALITY OF MONOPOLY
PROHIBITIONS, EXCEPTIONS THAT SPRING FROM THE NECESSITIES OR
CONVENIENCES OF CERTAIN INDUSTRIES OR BUSINESS ORGANIZATIONS, OR FROM
THE CHARACTERISTICS OF THE MEMBERS OF CERTAIN GROUPS OF CITIZENS. 
(FN14)  BUT THOSE EXCEPTIONS EXPRESS LEGISLATIVE DETERMINATION OF THE
NATIONAL ECONOMY'S NEED OF REASONABLE LIMITATIONS ON CUTTHROAT
COMPETITION OR PROHIBITION OF MONOPOLY.  "WHERE EXCEPTIONS ARE MADE,
CONGRESS SHOULD MAKE THEM."  UNITED STATES V. LINE MATERIAL CO., 333
U.S. 287, 310.  THEY MODIFY THE REACH OF THE SHERMAN ACT BUT DO NOT
CHANGE ITS PROHIBITION OF OTHER MONOPOLIES.  WE THEREFORE TURN TO SEC.
2 (NOTE 2, SUPRA) TO DETERMINE WHETHER DU PONT HAS VIOLATED THAT
STATED CIRCUMSTANCES. 

III.  THE SHERMAN ACT, SEC. 2 - MONOPOLIZATION.  - THE ONLY STATUTORY
LANGUAGE OF SEC. 2 PERTINENT ON THIS REVIEW IS:  "EVERY PERSON WHO
SHALL MONOPOLIZE  ...  SHALL BE DEEMED GUILTY  ...  ."  THIS COURT HAS
POINTED OUT THAT MONOPOLY AT COMMON LAW WAS A GRANT BY THE SOVEREIGN TO
ANY PERSON FOR THE SOLE MAKING OR HANDLING OF ANYTHING SO THAT OTHERS
WERE RESTRAINED OR HINDERED IN THEIR LAWFUL TRADE.  STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, 51.  HOWEVER, AS IN ENGLAND, IT CAME TO BE
RECOGNIZED HERE THAT ACTS BRINGING THE EVILS OF AUTHORIZED MONOPOLY -
UNDULY DIMINISHING COMPETITION AND ENHANCING PRICES - WERE UNDESIRABLE
(ID., AT 56, 57, 58) AND WERE DECLARED ILLEGAL BY SEC. 2.  ID., AT 60
62.  OUR CASES DETERMINE THAT A PARTY HAS MONOPOLY POWER IF IT HAS,
OVER "ANY PART OF THE TRADE OR COMMERCE AMONG THE SEVERAL STATES," A
POWER OF CONTROLLING PRICES OR UNREASONABLY RESTRICTING COMPETITION. 
ID., AT 58. 

SENATOR HOAR, IN DISCUSSING SEC. 2, POINTED OUT THAT MONOPOLY
INVOLVED SOMETHING MORE THAN EXTRAORDINARY COMMERCIAL SUCCESS, "THAT IT
INVOLVED SOMETHING LIKE THE USE OF MEANS WHICH MADE IT IMPOSSIBLE FOR
OTHER PERSONS TO ENGAGE IN FAIR COMPETITION."  (FN15)  THIS EXCEPTION
TO THE SHERMAN ACT PROHIBITIONS OF MONOPOLY POWER IS PERHAPS THE
MONOPOLY "THRUST UPON" ONE OF UNITED STATES V. ALUMINUM CO. OF AMERICA,
148 F.2D 416, 429, LEFT AS AN UNDECIDED POSSIBILITY BY AMERICAN TOBACCO
CO. V. UNITED STATES, 328 U.S. 781.  COMPARE UNITED STATES V. UNITED
SHOE MACHINERY CORP., 110 F. SUPP. 295, 342.  (FN16) 

IF CELLOPHANE IS THE "MARKET" THAT DU PONT IS FOUND TO DOMINATE, IT
MAY BE ASSUMED IT DOES HAVE MONOPOLY POWER OVER THAT "MARKET."  (FN17)
MONOPOLY POWER IS THE POWER TO CONTROL PRICES OR EXCLUDE COMPETITION. 
(FN18)  IT SEEMS APPARENT THAT DU PONT'S POWER TO SET THE PRICE OF
CELLOPHANE HAS BEEN LIMITED ONLY BY THE COMPETITION AFFORDED BY OTHER
FLEXIBLE PACKAGING MATERIALS.  MOREOVER, IT MAY BE PRACTICALLY
IMPOSSIBLE FOR ANYONE TO COMMENCE MANUFACTURING CELLOPHANE WITHOUT FULL
ACCESS TO DU PONT'S TECHNIQUE.  HOWEVER, DU PONT HAS NO POWER TO
PREVENT COMPETITION FROM OTHER WRAPPING MATERIALS.  THE TRIAL COURT
CONSEQUENTLY HAD TO DETERMINE WHETHER COMPETITION FROM THE OTHER
WRAPPINGS PREVENTED DU PONT FROM POSSESSING MONOPOLY POWER IN VIOLATION
OF SEC. 2.  PRICE AND COMPETITION ARE SO INTIMATELY ENTWINED THAT ANY
DISCUSSION OF THEORY MUST TREAT THEM AS ONE.  IT IS INCONCEIVABLE THAT
PRICE COULD BE CONTROLLED WITHOUT POWER OVER COMPETITION OR VICE
VERSA.  THIS APPROACH TO THE DETERMINATION OF MONOPOLY POWER IS
STRENGTHENED BY THIS COURT'S CONCLUSION IN PRIOR CASES THAT, WHEN AN
ALLEGED MONOPOLIST HAS POWER OVER PRICE AND COMPETITION, AN INTENTION
TO MONOPOLIZE IN A PROPER CASE MAY BE ASSUMED.  (FN19) 

IF A LARGE NUMBER OF BUYERS AND SELLERS DEAL FREELY IN A STANDARDIZED
PRODUCT, SUCH AS SALT OR WHEAT, WE HAVE COMPLETE OR PURE COMPETITION. 
PATENTS, ON THE OTHER HAND, FURNISH THE MOST FAMILIAR TYPE OF CLASSIC
MONOPOLY.  AS THE PRODUCERS OF A STANDARDIZED PRODUCT BRING ABOUT
SIGNIFICANT DIFFERENTIATIONS OF QUALITY, DESIGN, OR PACKAGING IN THE
PRODUCT THAT PERMIT DIFFERENCES OF USE, COMPETITION BECOMES TO A
GREATER OR LESS DEGREE INCOMPLETE AND THE PRODUCER'S POWER OVER PRICE
AND COMPETITION GREATER OVER HIS ARTICLE AND ITS USE, ACCORDING TO THE
DIFFERENTIATION HE IS ABLE TO CREATE AND MAINTAIN.  A RETAIL SELLER MAY
HAVE IN ONE SENSE A MONOPOLY ON CERTAIN TRADE BECAUSE OF LOCATION, AS
AN ISOLATED COUNTRY STORE OR FILLING STATION, OR BECAUSE NO ONE ELSE
MAKES A PRODUCT OF JUST THE QUALITY OR ATTRACTIVENESS OF HIS PRODUCT,
AS FOR EXAMPLE IN CIGARETTES.  THUS ONE CAN THEORIZE THAT WE HAVE
MONOPOLISTIC COMPETITION IN EVERY NONSTANDARDIZED COMMODITY WITH EACH
MANUFACTURER HAVING POWER OVER THE PRICE AND PRODUCTION OF HIS OWN
PRODUCT.  (FN20)  HOWEVER, THIS POWER THAT, LET US SAY, AUTOMOBILE OR
SOFT-DRINK MANUFACTURERS HAVE OVER THEIR TRADEMARKED PRODUCTS IS NOT
THE POWER THAT MAKES AN ILLEGAL MONOPOLY.  ILLEGAL POWER MUST BE
APPRAISED IN TERMS OF THE COMPETITIVE MARKET FOR THE PRODUCT.  (FN21) 

DETERMINATION OF THE COMPETITIVE MARKET FOR COMMODITIES DEPENDS ON
HOW DIFFERENT FROM ONE ANOTHER ARE THE OFFERED COMMODITIES IN CHARACTER
OR USE, HOW FAR BUYERS WILL GO TO SUBSTITUTE ONE COMMODITY FOR
ANOTHER.  FOR EXAMPLE, ONE CAN THINK OF BUILDING MATERIALS AS IN
COMMODITY COMPETITION BUT ONE COULD HARDLY SAY THAT BRICK COMPETED WITH
STEEL OR WOOD OR CEMENT OR STONE IN THE MEANING OF SHERMAN ACT
LITIGATION; THE PRODUCTS ARE TOO DIFFERENT.  THIS IS THE INTERINDUSTRY
COMPETITION EMPHASIZED BY SOME ECONOMISTS.  SEE LILIENTHAL, BIG
BUSINESS, C. 5.  ON THE OTHER HAND, THERE ARE CERTAIN DIFFERENCES IN
THE FORMULAE FOR SOFT DRINKS BUT ONE CAN HARDLY SAY THAT EACH ONE IS AN
ILLEGAL MONOPOLY.  WHATEVER THE MARKET MAY BE, WE HOLD THAT CONTROL OF
PRICE OR COMPETITION ESTABLISHES THE EXISTENCE OF MONOPOLY POWER UNDER
SEC. 2.  SECTION 2 REQUIRES THE APPLICATION OF A REASONABLE APPROACH IN
DETERMINING THE EXISTENCE OF MONOPOLY POWER JUST AS SURELY AS DID SEC.
1.  THIS OF COURSE DOES NOT MEAN THAT THERE CAN BE A REASONABLE
MONOPOLY.  SEE NOTES 7 AND 9, SUPRA.  OUR NEXT STEP IS TO DETERMINE
WHETHER DU PONT HAS MONOPOLY POWER OVER CELLOPHANE:  THAT IS, POWER
OVER ITS PRICE IN RELATION TO OR COMPETITION WITH OTHER COMMODITIES. 
THE CHARGE WAS MONOPOLIZATION OF CELLOPHANE.  THE DEFENSE, THAT
CELLOPHANE WAS MERELY A PART OF THE RELEVANT MARKET FOR FLEXIBLE
PACKAGING MATERIALS. 

IV.  THE RELEVANT MARKET.  - WHEN A PRODUCT IS CONTROLLED BY ONE
INTEREST, WITHOUT SUBSTITUTES AVAILABLE IN THE MARKET, THERE IS
MONOPOLY POWER.  BECAUSE MOST PRODUCTS HAVE POSSIBLE SUBSTITUTES, WE
CANNOT, AS WE SAID IN TIMES-PICAYUNE CO. V. UNITED STATES, 345 U.S.
594, 612, GIVE "THAT INFINITE RANGE" TO THE DEFINITION OF SUBSTITUTES. 
NOR IS IT A PROPER INTERPRETATION OF THE SHERMAN ACT TO REQUIRE THAT
PRODUCTS BE FUNGIBLE TO BE CONSIDERED IN THE RELEVANT MARKET. 

THE GOVERNMENT ARGUES: 

"WE DO NOT HERE URGE THAT IN NO CIRCUMSTANCES MAY COMPETITION OF
SUBSTITUTES NEGATIVE POSSESSION OF MONOPOLISTIC POWER OVER TRADE IN A
PRODUCT.  THE DECISIONS MAKE IT CLEAR AT THE LEAST THAT THE COURTS WILL
NOT CONSIDER SUBSTITUTES OTHER THAN THOSE WHICH ARE SUBSTANTIALLY
FUNGIBLE WITH THE MONOPOLIZED PRODUCT AND SELL AT SUBSTANTIALLY THE
SAME PRICE." 

BUT WHERE THERE ARE MARKET ALTERNATIVES THAT BUYERS MAY READILY USE
FOR THEIR PURPOSES, ILLEGAL MONOPOLY DOES NOT EXIST MERELY BECAUSE THE
PRODUCT SAID TO BE MONOPOLIZED DIFFERS FROM OTHERS.  IF IT WERE NOT SO,
ONLY PHYSICALLY IDENTICAL PRODUCTS WOULD BE A PART OF THE MARKET.  TO
ACCEPT THE GOVERNMENT'S ARGUMENT, WE WOULD HAVE TO CONCLUDE THAT THE
MANUFACTURERS OF PLAIN AS WELL AS MOISTUREPROOF CELLOPHANE WERE
MONOPOLISTS, AND SO WITH FILMS SUCH AS PLIOFILM, FOIL, GLASSINE,
POLYETHYLENE, AND SARAN, FOR EACH OF THESE WRAPPING MATERIALS IS
DISTINGUISHABLE.  THESE WERE ALL EXHIBITS IN THE CASE.  NEW WRAPPINGS
APPEAR, GENERALLY SIMILAR TO CELLOPHANE:  IS EACH A MONOPOLY?  WHAT IS
CALLED FOR IS AN APPRAISAL OF THE "CROSS-ELASTICITY" OF DEMAND IN THE
TRADE.  SEE NOTE, 54 COL. L. REV. 580.  THE VARYING CIRCUMSTANCES OF
EACH CASE DETERMINE THE RESULT.  (FN22)  IN CONSIDERING WHAT IS THE
RELEVANT MARKET FOR DETERMINING THE CONTROL OF PRICE AND COMPETITION,
NO MORE DEFINITE RULE CAN BE DECLARED THAN THAT COMMODITIES REASONABLY
INTERCHANGEABLE BY CONSUMERS FOR THE SAME PURPOSES MAKE UP THAT "PART
OF THE TRADE OR COMMERCE," MONOPOLIZATION OF WHICH MAY BE ILLEGAL.  AS
RESPECTS FLEXIBLE PACKAGING MATERIALS, THE MARKET GEOGRAPHICALLY IS
NATIONWIDE. 

INDUSTRIAL ACTIVITIES CANNOT BE CONFINED TO TRIM CATEGORIES.  ILLEGAL
MONOPOLIES UNDER SEC.  2 MAY WELL EXIST OVER LIMITED PRODUCTS IN NARROW
FIELDS WHERE COMPETITION IS ELIMINATED.  (FN23)  THAT DOES NOT SETTLE
THE ISSUE HERE.  IN DETERMINING THE MARKET UNDER THE SHERMAN ACT, IT IS
THE USE OR USES TO WHICH THE COMMODITY IS PUT THAT CONTROL.  THE
SELLING PRICE BETWEEN COMMODITIES WITH SIMILAR USES AND DIFFERENT
CHARACTERISTICS MAY VARY, SO THAT THE CHEAPER PRODUCT CAN DRIVE OUT THE
MORE EXPENSIVE.  OR, THE SUPERIOR QUALITY OF HIGHER PRICED ARTICLES MAY
MAKE DOMINANT THE MORE DESIRABLE.   CELLOPHANE COSTS MORE THAN MANY
COMPETING PRODUCTS AND LESS THAN A FEW.  BUT WHATEVER THE PRICE, THERE
ARE VARIOUS FLEXIBLE WRAPPING MATERIALS THAT ARE BOUGHT BY
MANUFACTURERS FOR PACKAGING THEIR GOODS IN THEIR OWN PLANTS OR ARE SOLD
TO CONVERTERS WHO SHAPE AND PRINT THEM FOR USE IN THE PACKAGING OF THE
COMMODITIES TO BE WRAPPED. 

CELLOPHANE DIFFERS FROM OTHER FLEXIBLE PACKAGING MATERIALS.  FROM
SOME IT DIFFERS MORE THAN FROM OTHERS.  THE BASIC MATERIALS FROM WHICH
THE WRAPPINGS ARE MADE AND THE ADVANTAGES AND DISADVANTAGES OF THE
PRODUCTS TO THE PACKAGING INDUSTRY ARE SUMMARIZED IN FINDINGS 62 AND
63.  THEY ARE ALUMINUM, CELLULOSE ACETATE, CHLORIDES, WOOD PULP, RUBBER
HYDROCHLORIDE, AND ETHYLENE GAS.  IT WILL ADEQUATELY ILLUSTRATE THE
SIMILARITY IN CHARACTERISTICS OF THE VARIOUS PRODUCTS BY NOTING HERE
FINDING 62 AS TO GLASSINE.  (FN24)  ITS USE IS ALMOST AS EXTENSIVE AS
CELLOPHANE, APPENDIX C, POST, P. 412, AND MANY OF ITS CHARACTERISTICS
EQUALLY OR MORE SATISFACTORY TO USERS.  (FN25) 

IT MAY BE ADMITTED THAT CELLOPHANE COMBINES THE DESIRABLE ELEMENTS OF
TRANSPARENCY, STRENGTH AND CHEAPNESS MORE DEFINITELY THAN ANY OF THE
OTHERS.  COMPARATIVE CHARACTERISTICS HAVE BEEN NOTED THUS:

"MOISTUREPROOF CELLOPHANE IS HIGHLY TRANSPARENT, TEARS READILY BUT
HAS HIGH BURSTING STRENGTH, IS HIGHLY IMPERVIOUS TO MOISTURE AND GASES,
AND IS RESISTANT TO GREASE AND OILS.  HEAT SEALABLE, PRINTABLE, AND
ADAPTED TO USE ON WRAPPING MACHINES, IT MAKES AN EXCELLENT PACKAGING
MATERIAL FOR BOTH DISPLAY AND PROTECTION OF COMMODITIES. 

"OTHER FLEXIBLE WRAPPING MATERIALS FALL INTO FOUR MAJOR CATEGORIES:
(1) OPAQUE NONMOISTUREPROOF WRAPPING PAPER DESIGNED PRIMARILY FOR
CONVENIENCE AND PROTECTION IN HANDLING PACKAGES; (2) MOISTUREPROOF
FILMS OF VARYING DEGREES OF TRANSPARENCY DESIGNED PRIMARILY EITHER TO
PROTECT, OR TO DISPLAY AND PROTECT, THE PRODUCTS THEY ENCOMPASS; (3)
NONMOISTUREPROOF TRANSPARENT FILMS DESIGNED PRIMARILY TO DISPLAY AND TO
SOME EXTENT PROTECT, BUT WHICH OBVIOUSLY DO A POOR PROTECTING JOB WHERE
EXCLUSION OR RETENTION OF MOISTURE IS IMPORTANT; AND (4) MOISTUREPROOF
MATERIALS OTHER THAN FILMS OF VARYING DEGREES OF TRANSPARENCY (FOILS
AND PAPER PRODUCTS) DESIGNED TO PROTECT AND DISPLAY."  (FN26)

AN EXAMINATION OF FINDING 59, APPENDIX B, POST, P. 411, WILL MAKE
THIS CLEAR. 

BUT, DESPITE CELLOPHANE'S ADVANTAGES, IT HAS TO MEET COMPETITION FROM
OTHER MATERIALS IN EVERY ONE OF ITS USES.  CELLOPHANE'S PRINCIPAL USES
ARE ANALYZED IN APPENDIX A, FINDINGS 281 AND 282.  FOOD PRODUCTS ARE
THE CHIEF OUTLET, WITH CIGARETTES NEXT.  THE GOVERNMENT MAKES NO
CHALLENGE TO FINDING 283 THAT CELLOPHANE FURNISHES LESS THAN 7% OF
WRAPPINGS FOR BAKERY PRODUCTS, 25% FOR CANDY, 32% FOR SNACKS, 35% FOR
MEATS AND POULTRY, 27% FOR CRACKERS AND BISCUITS, 47% FOR FRESH
PRODUCE, AND 34% FOR FROZEN FOODS.  SEVENTY-FIVE TO EIGHTY PERCENT OF
CIGARETTES ARE WRAPPED IN CELLOPHANE.  FINDING 292.   THUS, CELLOPHANE
SHARES THE PACKAGING MARKET WITH OTHERS.  THE OVER-ALL RESULT IS THAT
CELLOPHANE ACCOUNTS FOR 17.9% OF FLEXIBLE WRAPPING MATERIALS, MEASURED
BY THE WRAPPING SURFACE.  FINDING 280, APPENDIX A, POST, P. 405. 
MOREOVER A VERY CONSIDERABLE DEGREE OF FUNCTIONAL INTERCHANGEABILITY
EXISTS BETWEEN THESE PRODUCTS, AS IS SHOWN BY THE TABLES OF APPENDIX A
AND FINDINGS 150-278.  (FN27)  IT WILL BE NOTED, APPENDIX B, THAT
EXCEPT AS TO PERMEABILITY TO GASES, CELLOPHANE HAS NO QUALITIES THAT
ARE NOT POSSESSED BY A NUMBER OF OTHER MATERIALS.  MEAT WILL DO AS AN
EXAMPLE OF INTERCHANGEABILITY.  FINDINGS 205-220.  ALTHOUGH DU PONT'S
SALES TO THE MEAT INDUSTRY HAVE REACHED 19,000,000 POUNDS ANNUALLY,
NEARLY 35%, THIS VOLUME IS ATTRIBUTED "TO THE RISE OF SELF-SERVICE
RETAILING OF FRESH MEAT."  FINDINGS 212 AND 283.  IN FACT, SINCE THE
POPULARITY OF SELF-SERVICE MEATS, DU PONT HAS LOST "A CONSIDERABLE
PROPORTION" OF THIS PACKAGING BUSINESS TO PLIOFILM.  FINDING 215. 
PLIOFILM IS MORE EXPENSIVE THAN CELLOPHANE, BUT ITS SUPERIOR PHYSICAL
CHARACTERISTICS APPARENTLY OFFSET CELLOPHANE'S PRICE ADVANTAGE.  WHILE
RETAILERS SHIFT CONTINUALLY BETWEEN THE TWO, THE TRIAL COURT FOUND THAT
PLIOFILM IS INCREASING ITS SHARE OF THE BUSINESS.  FINDING 216.  ONE
FURTHER EXAMPLE IS WORTH NOTING.  BEFORE WORLD WAR II, DU PONT
CELLOPHANE WRAPPED BETWEEN 5 AND 10% OF BAKED AND SMOKED MEATS.  THE
PEAK YEAR WAS 1933.  FINDING 209.  THEREAFTER DU PONT WAS UNABLE TO
MEET THE COMPETITION OF SYLVANIA AND OF GREASEPROOF PAPER.  ITS SALES
DECLINED AND THE 1933 VOLUME WAS NOT REACHED AGAIN UNTIL 1947. 
FINDINGS 209-210.  IT WILL BE NOTED THAT GREASEPROOF PAPER, GLASSINE,
WAXED PAPER, FOIL AND PLIOFILM ARE USED AS WELL AS CELLOPHANE, FINDING
218.  FINDINGS 209-210 SHOW THE COMPETITION AND 215-216 THE ADVANTAGES
THAT HAVE CAUSED THE MORE EXPENSIVE PLIOFILM TO INCREASE ITS PROPORTION
OF THE BUSINESS. 

AN ELEMENT FOR CONSIDERATION AS TO CROSS-ELASTICITY OF DEMAND BETWEEN
PRODUCTS IS THE RESPONSIVENESS OF THE SALES OF ONE PRODUCT TO PRICE
CHANGES OF THE OTHER.  (FN28)  IF A SLIGHT DECREASE IN THE PRICE OF
CELLOPHANE CAUSES A CONSIDERABLE NUMBER OF CUSTOMERS OF OTHER FLEXIBLE
WRAPPINGS TO SWITCH TO CELLOPHANE, IT WOULD BE AN INDICATION THAT A
HIGH CROSS-ELASTICITY OF DEMAND EXISTS BETWEEN THEM; THAT THE PRODUCTS
COMPETE IN THE SAME MARKET.  THE COURT BELOW HELD THAT THE "GREAT
SENSITIVITY OF CUSTOMERS IN THE FLEXIBLE PACKAGING MARKETS TO PRICE OR
QUALITY CHANGES" PREVENTED DU PONT FROM POSSESSING MONOPOLY CONTROL
OVER PRICE.  118 F. SUPP., AT 207.  THE RECORD SUSTAINS THESE
FINDINGS.  SEE REFERENCES MADE BY THE TRIAL COURT IN FINDINGS 123-149. 

WE CONCLUDE THAT CELLOPHANE'S INTERCHANGEABILITY WITH THE OTHER
MATERIALS MENTIONED SUFFICES TO MAKE IT A PART OF THIS FLEXIBLE
PACKAGING MATERIAL MARKET. 

THE GOVERNMENT STRESSES THE FACT THAT THE VARIATION IN PRICE BETWEEN
CELLOPHANE AND OTHER MATERIALS DEMONSTRATES THEY ARE NONCOMPETITIVE. 
AS THESE PRODUCTS ARE ALL FLEXIBLE WRAPPING MATERIALS, IT SEEMS
REASONABLE TO CONSIDER, AS WAS DONE AT THE TRIAL, THEIR COMPARATIVE
COST TO THE CONSUMER IN TERMS OF SQUARE AREA.  THIS CAN BE SEEN IN
FINDING 130, APPENDIX C. FINDINGS AS TO PRICE COMPETITION ARE SET OUT
IN THE MARGIN.  (FN29)  CELLOPHANE COSTS TWO OR THREE TIMES AS MUCH,
SURFACE MEASURE, AS ITS CHIEF COMPETITORS FOR THE FLEXIBLE WRAPPING
MARKET, GLASSINE AND GREASEPROOF PAPERS.  OTHER FORMS OF CELLULOSE
WRAPPINGS AND THOSE FROM OTHER CHEMICAL OR MINERAL SUBSTANCES, WITH THE
EXCEPTION OF ALUMINUM FOIL, ARE MORE EXPENSIVE.  THE USES OF THESE
MATERIALS, AS CAN BE OBSERVED BY FINDING 283 IN APPENDIX A, ARE LARGELY
TO WRAP SMALL PACKAGES FOR RETAIL DISTRIBUTION.  THE WRAPPING IS A
RELATIVELY SMALL PROPORTION OF THE ENTIRE COST OF THE ARTICLE.  (FN30)
DIFFERENT PRODUCERS NEED DIFFERENT QUALITIES IN WRAPPINGS AND THEIR
NEED MAY VARY FROM TIME TO TIME AS THEIR PRODUCTS UNDERGO CHANGE.  BUT
THE NECESSITY FOR FLEXIBLE WRAPPINGS IS THE CENTRAL AND UNCHANGING
DEMAND.  WE CANOT SAY THAT THESE DIFFERENCES IN COST GAVE DU PONT
MONOPOLY POWER OVER PRICES IN VIEW OF THE FINDINGS OF FACT ON THAT
SUBJECT.  (FN31) 

IT IS THE VARIABLE CHARACTERISTICS OF THE DIFFERENT FLEXIBLE
WRAPPINGS AND THE ENERGY AND ABILITY WITH WHICH THE MANUFACTURERS PUSH
THEIR WARES THAT DETERMINE CHOICE.  A GLANCE AT "MODERN PACKAGING," A
TRADE JOURNAL, WILL GIVE, BY ITS VARIOUS ADVERTISEMENTS, EXAMPLES OF
THE COMPETITION AMONG MANUFACTURERS FOR THE FLEXIBLE PACKAGING MARKET. 
THE TRIAL JUDGE VISITED THE 1952 ANNUAL PACKAGING SHOW AT ATLANTIC
CITY, WITH THE CONSENT OF COUNSEL.  HE OBSERVED EXHIBITS OFFERED BY
"MACHINERY MANUFACTURERS, CONVERTERS AND MANUFACTURERS OF FLEXIBLE
PACKAGING MATERIALS."  HE STATES THAT THESE PERSONAL OBSERVATIONS
CONFIRMED HIS ESTIMATE OF THE COMPETITION BETWEEN CELLOPHANE AND OTHER
PACKAGING MATERIALS.  FINDING 820.  FROM THIS WIDE VARIETY OF EVIDENCE,
THE COURT REACHED THE CONCLUSION EXPRESSED IN FINDING 838: 

"THE RECORD ESTABLISHES PLAIN CELLOPHANE AND MOISTUREPROOF CELLOPHANE
ARE EACH FLEXIBLE PACKAGING MATERIALS WHICH ARE FUNCTIONALLY
INTERCHANGEABLE WITH OTHER FLEXIBLE PACKAGING MATERIALS AND SOLD AT
SAME TIME TO SAME CUSTOMERS FOR SAME PURPOSE AT COMPETITIVE PRICES;
THERE IS NO CELLOPHANE MARKET DISTINCT AND SEPARATE FROM THE MARKET FOR
FLEXIBLE PACKAGING MATERIALS; THE MARKET FOR FLEXIBLE PACKAGING
MATERIALS IS THE RELEVANT MARKET FOR DETERMINING NATURE AND EXTENT OF
DUPONT'S MARKET CONTROL; AND DUPONT HAS AT ALL TIMES COMPETED WITH
OTHER CELLOPHANE PRODUCERS AND MANUFACTURERS OF OTHER FLEXIBLE
PACKAGING MATERIALS IN ALL ASPECTS OF ITS CELLOPHANE BUSINESS." 

THE FACTS ABOVE CONSIDERED DISPOSE ALSO OF ANY CONTENTION THAT
COMPETITORS HAVE BEEN EXCLUDED BY DU PONT FROM THE PACKAGING MATERIAL
MARKET.  THAT MARKET HAS MANY PRODUCERS AND THERE IS NO PROOF DU PONT
EVER HAS POSSESSED POWER TO EXCLUDE ANY OF THEM FROM THE RAPIDLY
EXPANDING FLEXIBLE PACKAGING MARKET.  THE GOVERNMENT APPARENTLY
CONCEDES AS MUCH, FOR IT STATES THAT "LACK OF POWER TO INHIBIT ENTRY
INTO THIS SO-CALLED MARKET (I.E., FLEXIBLE PACKAGING MATERIALS),
COMPRISING WIDELY DISPARATE PRODUCTS, IS NO INDICTUM OF ABSENCE OF
POWER TO EXCLUDE COMPETITION IN THE MANUFACTURE AND SALE OF
CELLOPHANE."  THE RECORD SHOWS THE MULTIPLICITY OF COMPETITORS AND THE
FINANCIAL STRENGTH OF SOME WITH INDIVIDUAL ASSETS RUNNING TO THE
HUNDREDS OF MILLIONS.  FINDINGS 66-72.  INDEED, THE TRIAL COURT FOUND
THAT DU PONT COULD NOT EXCLUDE COMPETITORS EVEN FROM THE MANUFACTURE OF
CELLOPHANE, FINDING 727, AN IMMATERIAL MATTER IF THE MARKET IS FLEXIBLE
PACKAGING MATERIAL.  NOR CAN WE SAY THAT DU PONT'S PROFITS, WHILE
LIBERAL (ACCORDING TO THE GOVERNMENT 15.9% NET AFTER TAXES ON THE 1937
1947 AVERAGE), DEMONSTRATE THE EXISTENCE OF A MONOPOLY WITHOUT PROOF OF
LACK OF COMPARABLE PROFITS DURING THOSE YEARS IN OTHER PROSPEROUS
INDUSTRIES.  CELLOPHANE WAS A LEADER, OVER 17%, IN THE FLEXIBLE
PACKAGING MATERIALS MARKET.  THERE IS NO SHOWING THAT DU PONT'S RATE OF
RETURN WAS GREATER OR LESS THAN THAT OF OTHER PRODUCERS OF FLEXIBLE
PACKAGING MATERIALS.  FINDING 719. 

THE "MARKET" WHICH ONE MUST STUDY TO DETERMINE WHEN A PRODUCER HAS
MONOPOLY POWER WILL VARY WITH THE PART OF COMMERCE UNDER
CONSIDERATION.  THE TESTS ARE CONSTANT.  THAT MARKET IS COMPOSED OF
PRODUCTS THAT HAVE REASONABLE INTERCHANGEABILITY FOR THE PURPOSES FOR
WHICH THEY ARE PRODUCED - PRICE, USE AND QUALITIES CONSIDERED.  WHILE
THE APPLICATION OF THE TESTS REMAINS UNCERTAIN, IT SEEMS TO US THAT DU
PONT SHOULD NOT BE FOUND TO MONOPOLIZE CELLOPHANE WHEN THAT PRODUCT HAS
THE COMPETITION AND INTERCHANGEABILITY WITH OTHER WRAPPINGS THAT THIS
RECORD SHOWS. 

ON THE FINDINGS OF THE DISTRICT COURT, ITS JUDGMENT IS AFFIRMED. 

FN1  UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 118 F. SUPP.
41.  THE OPINION OCCUPIES 192 PAGES OF THE VOLUME.  THE FINDINGS OF
FACT, 854 IN NUMBER, COVER 140 PAGES.  THE CITATIONS TO FINDINGS IN OUR
OPINION, WHERE REFERENCES ARE NOT MADE TO OUR APPENDICES (POST, P. 405
ET SEQ.), ARE TO THE FEDERAL SUPPLEMENT.  WE NOTED PROBABLE
JURISDICTION OCTOBER 14, 1954, 348 U.S. 806. 

FN2  "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. (1952 ED. SUPP. III) SEC. 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, AND, ON CONVICTION
THEREOF, SHALL BE PUNISHED BY FINE NOT EXCEEDING FIFTY THOUSAND
DOLLARS, OR BY IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY BOTH SAID
PUNISHMENTS, IN THE DISCRETION OF THE COURT."  ID., SEC. 2. 

"THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE INVESTED WITH
JURISDICTION TO PREVENT AND RESTRAIN VIOLATIONS OF SECTIONS 1-7 OF THIS
TITLE  ...  ."  15 U.S.C. SEC. 4. 

FN3  SEE ALSO UNITED STATES V. YELLOW CAB CO., 338 U.S. 338; UNITED
STATES V. OREGON MED.  SOC., 343 U.S. 326, 339; UNITED SHOE MACHINERY
CORP. V. UNITED STATES, 347 U.S. 521. 

FN4  INITIALLY, THE PROPER CELLULOSE CONTENT OF THE VISCOSE MUST BE
DETERMINED.  THIS VISCOUS FLUID IS RIPENED ACCORDING TO A "RIPENING
INDEX," A TEST WHEREBY VISCOSE IS PUT IN A SALT SOLUTION AND SHAKEN TO
BRING OUT THE COAGULATION POINT.  THE REQUISITE STRENGTH OF THIS
SOLUTION VARIES ACCORDING TO THE RIPENING TIME.  FOURTEEN ADDITIONAL
BATHS FOLLOW THE FIRST COAGULATING BATH.  THE MOST ADVANTAGEOUS
RIPENING TIME, TEMPERATURE, SIZE, COMPOSITION, AND DURATION OF EACH OF
THE BATHS WERE ALL DETERMINED BY THE TRIALS AND ERRORS OF BRANDENBERGER
AND LA CELLOPHANE, THE CORPORATION HE DIRECTED.  IT WAS ESTIMATED THAT
IN 1923 IT WOULD HAVE TAKEN FOUR OR FIVE YEARS OF EXPERIMENTATION BY A
NEW PRODUCER OF CELLOPHANE TO ATTAIN THIS PRODUCTION TECHNIQUE. 

FN5  SUBSTANTIALLY IDENTICAL LETTERS WERE SENT IN THIS FORM: 

"QUESTION HAS BEEN RAISED WITHIN OUR ORGANIZATION AS TO THE EXISTENCE
OF TERRITORIAL LIMITATIONS UNDER OUR AGREEMENTS WITH YOUR COMPANY
RELATING TO REGENERATED CELLULOSE FILM.  IN ORDER THAT OUR POSITION MAY
BE CLEARLY AND FRANKLY ESTABLISHED, WE DESIRE TO RECORD WITH YOU OUR
CONCLUSIONS. 

"BASED UPON THE PROVISIONS OF THE CONTRACTS, AND IN THE LIGHT OF
LEGAL DEVELOPMENTS IN THIS COUNTRY, WE CONSTRUE THESE AGREEMENTS AS
IMPOSING NO RESTRICTIONS UPON THE SALE OF REGENERATED CELLULOSE FILM IN
ANY COUNTRY IN WHICH THE PUBLIC IS FREE TO SELL.  THUS WE REGARD EACH
PARTY AS FREE TO EXPORT SUCH FILM TO ANY COUNTRY IN THE WORLD, SUBJECT
ONLY TO SUCH LIMITATIONS AS LAWFULLY MAY BE BASED UPON THE UNAUTHORIZED
USE OF PATENTED INVENTIONS OR TRADE-MARKS IN THE COUNTRY OF
MANUFACTURE, OR IN THE COUNTRY OF USE OR SALE. 

"THIS LETTER IS NOT INTENDED TO MODIFY ANY OF THE PROVISIONS OF OUR
AGREEMENTS INVOLVING THE EXCHANGE OF TECHNICAL INFORMATION."  R. 3323. 

FN6  FURTHER INFORMATION FROM THE FINDINGS AS TO COMPETITION WILL BE
FOUND IN FINDINGS 150-278. 

FN7  THIS WAS SET FORTH AND DEFINED IN STANDARD OIL CO. V. UNITED
STATES, 221 U.S. 1, 58-62.  IT WAS BASED ON THE GENERALITY OF SECS. 1
AND 2 OF THE SHERMAN ACT, WHICH WERE SAID TO BE "BROAD ENOUGH TO
EMBRACE EVERY CONCEIVABLE CONTRACT OR COMBINATION WHICH COULD BE MADE
CONCERNING COMMERCE" AND THEREFORE REQUIRED A "STANDARD."  THE STANDARD
OF REASON, DRAWN FROM THE COMMON LAW, WAS ADOPTED.  SEE ADAMS, THE
"RULE OF REASON," 63 YALE L.J.  348; AND OPPENHEIM, FEDERAL ANTITRUST
LEGISLATION, 50 MICH. L. REV., AT 1156, NOTES 11 AND 13, INFRA. 

FN8 221 U.S., AT 86 ET SEQ. 

FN9  UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, 529; TIMES
PICAYUNE CO. V. UNITED STATES, 345 U.S. 594, 614-615. 

FN10  SEE UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392;
AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 813; TIMKEN ROLLER
BEARING CO. V. UNITED STATES, 341 U.S. 593. 

FN11  CF. OPPENHEIM, FEDERAL ANTITRUST LEGISLATION, 50 MICH. L. REV.
1139, 1151-1152; ADAMS, THE "RULE OF REASON," 63 YALE L.J. 348; AND THE
SCHWARTZ DISSENT, 1 ANTITRUST BULLETIN 37, 47. 

FN12  UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, 526. 

FN13  FINAL REPORT, INVESTIGATION OF CONCENTRATION OF ECONOMIC POWER,
S. DOC. NO. 35, 77TH CONG., 1ST SESS.; MONOGRAPH NO. 38 OF THAT
INVESTIGATION, HANDLER, A STUDY OF THE CONSTRUCTION AND ENFORCEMENT OF
THE FEDERAL ANTITRUST LAWS, 76TH CONG., 3D SESS.; EFFECTIVE
COMPETITION, REPORT TO THE SECRETARY OF COMMERCE, CHARLES SAWYER, BY
HIS BUSINESS ADVISORY COUNCIL, DECEMBER 18, 1952; REPORT OF THE
ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE ANTITRUST LAWS,
MARCH 31, 1955; OPPENHEIM, FEDERAL ANTITRUST LEGISLATION, 50 MICH. L.
REV.  1139; KAHN, A LEGAL AND ECONOMIC APPRAISAL OF THE "NEW" SHERMAN
AND CLAYTON ACTS, 63 YALE L.J. 293; ADAMS, THE "RULE OF REASON," 63
YALE L.J. 348; ROSTOW, MONOPOLY UNDER THE SHERMAN ACT:  POWER OR
PURPOSE?, 43 ILL. L. REV. 745. 

FN14  NUMEROUS ACTS CONTAIN SPECIFIC EXEMPTIONS FROM THE OPERATION OF
THE ANTITRUST LAWS: CLAYTON ACT, 15 U.S.C. SEC. 17 (1946) (ALL LABOR
ORGANIZATIONS); MCCARRAN-FERGUSON ACT, 15 U.S.C. SEC. 1013 (1952)
(INSURANCE COMPANIES); WEBB-POMERENE ACT, 15 U.S.C. SEC. 62 (1946)
(LIMITED EXEMPTION FOR FOREIGN TRADE ASSOCIATIONS); CAPPER-VOLSTEAD
ACT, 7 U.S.C.  SECS. 291, 292 (1927) (FARM COOPERATIVES); INTERSTATE
COMMERCE ACT, 49 U.S.C. SEC. 5(11) (1952) (CARRIERS PARTICIPATING IN AN
APPROVED TRANSACTION); CIVIL AERONAUTICS ACT, 49 U.S.C.  SEC. 494
(1952) (EXEMPTION FOR ACTS ORDERED BY THE CAB).    MARKET ENTRY IS
CAREFULLY REGULATED IN SOME OF THE COUNTRY'S LARGEST BUSINESSES:
NATURAL GAS ACT, 15 U.S.C. SEC. 717F (NATURAL GAS COMPANIES); FEDERAL
COMMUNICATIONS ACT, 47 U.S.C.  SEC. 307(A) (1952) (LIMITS NEW
STATIONS); CIVIL AERONAUTICS ACT, 49 U.S.C. SEC. 481(D) (1951)(LIMITS
MARKET ENTRY); MOTOR CARRIER ACT, 49 U.S.C. SEC. 307 (1952) (MOTOR
VEHICLE COMMON CARRIERS).  PRICE FIXING IN SOME AREAS IS AUTHORIZED BY
THE LEGISLATURE:  REED-BULWINKLE ACT, 49 U.S.C. SEC. 5B (1952)
(RAILROAD RATE AGREEMENTS); CIVIL AERONAUTICS ACT, 49 U.S.C.  SEC. 492
(1952) (APPROVAL OF TRANSPORTATION RATE AGREEMENTS); MILLER-TYDINGS
ACT, 15 U.S.C.  SEC. 1 (1946) (RESALE PRICE MAINTENANCE); SHIPPING ACT,
46 U.S.C. SEC. 814 (1952) (WATER CARRIERS' RATE AGREEMENTS). 

COMBINATION OF STRONG COMPETITORS IN SOME MAJOR INSTANCES HAS BEEN
ENCOURAGED:  FEDERAL COMMUNICATIONS ACT, 47 U.S.C. SECS. 221(A),
222(C)(1) (1952); FEDERAL POWER ACT, 16 U.S.C.  SEC. 824AB) (1952);
INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 5B (1952) (ALL COMMON
CARRIERS). 

THAT COMPETITION IS NOT ALWAYS TO BE ENCOURAGED IS MADE EVIDENT BY
NOTING THAT THE FARMERS HAVE BEEN ACTUALLY BARRED FROM PRODUCTION IN
MOST MAJOR CROPS AND SOME GROUPS OF WORKERS ARE TOLD THAT THEY MAY NOT,
IN PRODUCTION OF COMMODITIES FOR COMMERCE, WORK FOR LESS THAN A MINIMUM
WAGE.  FAIR LABOR STANDARDS ACT, 29 U.S.C. SEC. 206 (1952). 

SEE REPORT OF ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE
ANTITRUST LAWS, PP. 261-313, FOR DISCUSSION OF "EXEMPTIONS FROM
ANTITRUST COVERAGE." 

FN15  21 CONG. REC. 3151: 

"MR. KENNA.  MR. PRESIDENT, I HAVE NO DISPOSITION TO DELAY A VOTE ON
THE BILL, BUT I WOULD LIKE TO ASK, WITH HIS PERMISSION, THE SENATOR
FROM VERMONT A QUESTION TOUCHING THE SECOND SECTION: 

"'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, ETC.' 

"IS IT INTENDED BY THE COMMITTEE, AS THE SECTION SEEMS TO INDICATE,
THAT IF AN INDIVIDUAL ENGAGED IN TRADE BETWEEN STATES OR BETWEEN STATES
AND TERRITORIES, OR BETWEEN STATES OR TERRITORIES AND THE DISTRICT OF
COLUMBIA, OR BETWEEN A STATE AND A FOREIGN COUNTRY, BY HIS OWN SKILL
AND ENERGY, BY THE PROPRIETY OF HIS CONDUCT GENERALLY, SHALL PURSUE HIS
CALLING IN SUCH A WAY AS TO MONOPOLIZE A TRADE, HIS ACTION SHALL BE A
CRIME UNDER THIS PROPOSED ACT?  TO MAKE MYSELF UNDERSTOOD, IF I AM NOT
CLEAR: 

"MR. EDMUNDS.  I THINK I UNDERSTAND THE SENATOR. 

"MR. KENNA.  SUPPOSE A CITIZEN OF KENTUCKY IS DEALING IN SHORTHORN
CATTLE AND BY VIRTUE OF HIS SUPERIOR SKILL IN THAT PARTICULAR PRODUCT
IT TURNS OUT THAT HE IS THE ONLY ONE IN THE UNITED STATES TO WHOM AN
ORDER COMES FROM MEXICO FOR CATTLE OF THAT STOCK FOR A CONSIDERABLE
PERIOD, SO THAT HE IS CONCEDED TO HAVE A MONOPOLY OF THAT TRADE WITH
MEXICO; IS IT INTENDED BY THE COMMITTEE THAT THE BILL SHALL MAKE THAT
MAN A CULPRIT? 

"MR. EDMUNDS.  IT IS NOT INTENDED BY IT AND THE BILL DOES NOT DO IT.
ANYBODY WHO KNOWS THE MEANING OF THE WORD 'MONOPOLY,' AS THE COURTS
APPLY IT, WOULD NOT APPLY IT TO SUCH A PERSON AT ALL; AND I AM SURE MY
FRIEND MUST UNDERSTAND THAT." 

ID., AT 3152: 

"MR. HOAR.  I PUT IN THE COMMITTEE, IF I MAY BE PERMITTED TO SAY SO
(I SUPPOSE THERE IS NO IMPROPRIETY IN IT), THE PRECISE QUESTION WHICH
HAS BEEN PUT BY THE SENATOR FROM WEST VIRGINIA, AND I HAD THAT PRECISE
DIFFICULTY IN THE FIRST PLACE WITH THIS BILL, BUT I WAS ANSWERED, AND I
THINK ALL THE OTHER MEMBERS OF THE COMMITTEE AGREED IN THE ANSWER, THAT
'MONOPOLY' IS A TECHNICAL TERM KNOWN TO THE COMMON LAW, AND THAT IT
SIGNIFIES - I DO NOT MEAN TO SAY THAT THEY STATED WHAT THE SIGNIFICANCE
WAS, BUT I BECAME SATISFIED THAT THEY WERE RIGHT AND THAT THE WORD
'MONOPOLY' IS A MERELY TECHNICAL TERM WHICH HAS A CLEAR AND LEGAL
SIGNIFICATION, AND IT IS THIS:  IT IS THE SOLE ENGROSSING TO A MAN'S
SELF BY MEANS WHICH PREVENT OTHER MEN FROM ENGAGING IN FAIR COMPETITION
WITH HIM. 

"OF COURSE A MONOPOLY GRANTED BY THE KING WAS A DIRECT INHIBITION OF
ALL OTHER PERSONS TO ENGAGE IN THAT BUSINESS OR CALLING OR TO ACQUIRE
THAT PARTICULAR ARTICLE, EXCEPT THE MAN WHO HAD A MONOPOLY GRANTED HIM
BY THE SOVEREIGN POWER.  I SUPPOSE, THEREFORE, THAT THE COURTS OF THE
UNITED STATES WOULD SAY IN THE CASE PUT BY THE SENATOR FROM WEST
VIRGINIA THAT A MAN WHO MERELY BY SUPERIOR SKILL AND INTELLIGENCE, A
BREEDER OF HORSES OR RAISER OF CATTLE, OR MANUFACTURER OR ARTISAN OF
ANY KIND, GOT THE WHOLE BUSINESS BECAUSE NOBODY COULD DO IT AS WELL AS
HE COULD WAS NOT A MONOPOLIST, BUT THAT IT INVOLVED SOMETHING LIKE THE
USE OF MEANS WHICH MADE IT IMPOSSIBLE FOR OTHER PERSONS TO ENGAGE IN
FAIR COMPETITION, LIKE THE ENGROSSING, THE BUYING UP OF ALL OTHER
PERSONS ENGAGED IN THE SAME BUSINESS." 

FN16  SEE P. 381. 

FN17  COMPARE STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 74, AND
AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 813-814; UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 226, LAST PARAGRAPH,
NOTE 59. 

FN18  SEE AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 811;
APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 501; STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, 58.  SEE STOCKING AND MUELLER, THE
CELLOPHANE CASE AND THE NEW COMPETITION, XLV AMERICAN ECONOMIC REV. 29,
54; COLE, AN APPRAISAL OF ECONOMIC CHANGE, XLIV AMERICAN ECONOMIC REV.
35, 61; WILCOX, TNEC MONOGRAPH NO. 21, PP. 9, 11; THE SCHWARTZ DISSENT,
1 ANTITRUST BULLETIN, AT 39; REPORT OF ATTORNEY GENERAL'S NATIONAL
COMMITTEE TO STUDY THE ANTITRUST LAWS, P. 43; NEAL, THE CLAYTON ACT AND
THE TRANSAMERICA CASE, 5 STAN.  L. REV. 179, 205, 213. 

FN19  UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, 525; UNITED
STATES V. PARAMOUNT PICTURES, 334 U.S. 131, 173; APEX HOSIERY CO. V.
LEADER, 310 U.S. 469, 501; CF. ROSTOW, 43 ILL. L. REV. 745, 753-763;
OPPENHEIM, FEDERAL ANTITRUST LEGISLATION, 50 MICH. L. REV.  1139,
1193. 

FN20  SEE CHAMBERLIN, THEORY OF MONOPOLISTIC COMPETITION, C. IV. 

FN21  SEE UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, 527;
TIMES-PICAYUNE CO. V. UNITED STATES, 345 U.S. 594, 610; STANDARD OIL
CO. V. UNITED STATES, 283 U.S. 163, 179. 

FN22  MAPLE FLOORING ASSN. V. UNITED STATES, 268 U.S. 563, 579: 

"IT SHOULD BE SAID AT THE OUTSET, THAT IN CONSIDERING THE APPLICATION
OF THE RULE OF DECISION IN THESE CASES TO THE SITUATION PRESENTED BY
THIS RECORD, IT SHOULD BE REMEMBERED THAT THIS COURT HAS OFTEN
ANNOUNCED THAT EACH CASE ARISING UNDER THE SHERMAN ACT MUST BE
DETERMINED UPON THE PARTICULAR FACTS DISCLOSED BY THE RECORD, AND THAT
THE OPINIONS IN THOSE CASES MUST BE READ IN THE LIGHT OF THEIR FACTS
AND OF A CLEAR RECOGNITION OF THE ESSENTIAL DIFFERENCES IN THE FACTS OF
THOSE CASES, AND IN THE FACTS OF ANY NEW CASE TO WHICH THE RULE OF
EARLIER DECISIONS IS TO BE APPLIED." 

FN23 THE GOVERNMENT NOTES THAT THE PROHIBITIONS OF SEC. 2 OF THE
SHERMAN ACT HAVE OFTEN BEEN EXTENDED TO PRODUCERS OF SINGLE PRODUCTS
AND TO BUSINESSES OF LIMITED SCOPE.  BUT THE CASES TO WHICH THE
GOVERNMENT REFERS US WERE NOT CONCERNED WITH THE PROBLEM THAT IS NOW
BEFORE THE COURT.  IN STORY PARCHMENT CO. V. PATERSON CO., 282 U.S.
555, A CONSPIRACY TO MONOPOLIZE TRADE IN VEGETABLE PARCHMENT WAS HELD
TO BE A VIOLATION OF SEC. 2.  PARCHMENT PAPER IS OBVIOUSLY NO LARGER A
PART OF COMMERCE THAN CELLOPHANE.  RECOVERY, HOWEVER, WAS BASED ON
PROVEN ALLEGATIONS OF COMBINATION AND CONSPIRACY TO MONOPOLIZE, AND THE
SCOPE OF THE MARKET WAS NOT IN ISSUE.  P. 560.  SIMILARLY, INDIANA
FARMER'S GUIDE CO. V. PRAIRIE FARMER PUBLISHING CO., 293 U.S. 268,
RULED THAT A COMBINATION OR CONSPIRACY FOR THE PURPOSE OF MONOPOLIZING
THE FARM-PAPER BUSINESS IN THE NORTH CENTRAL PART OF THE NATION WOULD
BE ILLEGAL BY REASON OF THE SECOND SECTION OF THE SHERMAN ACT.  LORAIN
JOURNAL CO. V. UNITED STATES, 342 U.S. 143, A CASE NOT CITED BY THE
GOVERNMENT, WAS CONCERNED WITH EVEN A SMALLER GEOGRAPHICAL AREA
(DISSEMINATION OF NEWS IN A COMMUNITY AND SURROUNDING TERRITORY).  BUT
THE COURT HELD ONLY THAT DEFENDANT HAD ATTEMPTED TO MONOPOLIZE, NOT
THAT HE HAD IN FACT MONOPOLIZED.  ALSO, THIS COURT FOUND IN UNITED
STATES V. COLUMBIA STEEL CO., 334 U.S. 495, THAT THE "RELEVANT
COMPETITIVE MARKET" FOR DETERMINING WHETHER THERE HAD BEEN AN
UNREASONABLE RESTRAINT OF TRADE (OR AN ATTEMPT TO MONOPOLIZE) WAS THE
MARKET FOR "ROLLED STEEL" PRODUCTS IN AN 11-STATE AREA.  WOMEN'S
DRESSES OF "ORIGINAL DESIGN," FASHION ORIGINATORS' GUILD V. FEDERAL
TRADE COMM'N, 312 U.S. 457; "FIRST RUN" MOTION PICTURES, UNITED STATES
V. PARAMOUNT PICTURES, 334 U.S. 131; THE NEWS SERVICES OF ONE NEWS
AGENCY, UNITED STATES V. ASSOCIATED PRESS, 52 F. SUPP. 362 (S.D.N.Y.),
AFF'D 326 U.S. 1; AND NEWSPAPER ADVERTISING AS DISTINGUISHED FROM OTHER
MEANS OF NEWS DISSEMINATION, TIMES-PICAYUNE CO. V. UNITED STATES, 345
U.S. 594, HAVE ALL BEEN DESIGNATED AS PARTS OF COMMERCE.  ALL FOUR WERE
CONCERNED ONLY WITH THE QUESTION OF WHETHER THERE HAD BEEN AN ATTEMPT
TO MONOPOLIZE.  UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416
(C.A.2D CIR.), DID INVOLVE THE QUESTION OF MONOPOLIZATION.  JUDGE HAND
FOUND THAT THE RELEVANT MARKET FOR MEASURING ALCOA'S POWER WAS THE
MARKET FOR "VIRGIN" ALUMINUM; HE REFUSED TO CONSIDER THE CLOSE
COMPETITION OFFERED BY 'SECONDARY" (USED) ALUMINUM.  THE REASON FOR THE
NARROW DEFINITION WAS THAT ALCOA'S CONTROL OVER VIRGIN ALUMINUM
PERMITTED IT TO REGULATE THE SUPPLY OF USED ALUMINUM EVEN THOUGH THE
LATTER SHOULD BE ACTUALLY SOLD BY A COMPETITOR.  CONSEQUENTLY, THE CASE
IS NOT PARTICULARLY HELPFUL IN THE PROBLEM OF MARKET DEFINITION NOW
BEFORE THE COURT. 

FN24  "62.  ...  GREASEPROOF PAPER IS MADE BY BEATING WOOD PULP IN A
VAT FILLED WITH WATER UNTIL THE FIBERS BECOME SATURATED AND GELATINOUS
IN TEXTURE.  RESULTING PRODUCT IS TRANSLUCENT AND RESISTANT TO OIL AND
GREASE. 

"GLASSINE IS PRODUCED BY FINISHING GREASEPROOF PAPER BETWEEN HIGHLY
POLISHED METAL ROLLERS UNDER HEAT AND AT PRESSURE.  THIS PROCESS
DEVELOPS THE TRANSPARENCY AND SURFACE GLOSS WHICH ARE CHARACTERISTIC OF
GLASSINE.  IT IS GREASEPROOF, AND CAN BE SEALED BY HEAT, IF COATED.  IT
IS MADE MOISTUREPROOF BY COATING AND WITH APPROPRIATE LACQUERS OR WAXES
AND MAY BE PRINTED." 

FN25  "63.  THERE ARE RESPECTS IN WHICH OTHER FLEXIBLE PACKAGING
MATERIALS ARE AS SATISFACTORY AS CELLOPHANE: 

    *         *         *         *         *

                             "GLASSINE. 

"GLASSINE IS, IN SOME TYPES, ABOUT 90% TRANSPARENT, SO PRINTING IS
LEGIBLE THROUGH IT. 

"GLASSINE AFFORDS LOW COST TRANSPARENCY. 

"MOISTURE PROTECTION AFFORDED BY WAXED OR LACQUERED GLASSINE IS AS
GOOD AS THAT OF MOISTUREPROOF CELLOPHANE. 

"GLASSINE HAS GREATER RESISTANCE TO TEARING AND BREAKAGE THAN
CELLOPHANE. 

"GLASSINE RUNS ON PACKAGING MACHINERY WITH EASE EQUAL TO THAT OF
CELLOPHANE. 

"GLASSINE CAN BE PRINTED FASTER THAN CELLOPHANE, AND CAN BE RUN
FASTER THAN MOISTUREPROOF CELLOPHANE ON BAG MACHINES. 

"GLASSINE HAS GREATER RESISTANCE THAN CELLOPHANE TO RANCIDITY
INDUCING ULTRAVIOLET RAYS. 

"GLASSINE HAS DIMENSIONAL STABILITY SUPERIOR TO CELLOPHANE. 

"GLASSINE IS MORE DURABLE IN COLD WEATHER THAN CELLOPHANE. 

"PRINTED GLASSINE CAN BE SOLD AGAINST CELLOPHANE ON THE BASIS OF
APPEARANCE. 

"GLASSINE MAY BE MORE EASILY LAMINATED THAN CELLOPHANE. 

"GLASSINE IS CHEAPER THAN CELLOPHANE IN SOME TYPES, COMPARABLE IN
OTHERS." 

FN26  STOCKING AND MUELLER, THE CELLOPHANE CASE, XLV AMER.  ECONOMIC
REV. 29, 48-49. 

FN27  THERE ARE EIGHTEEN CLASSIFICATIONS; WHITE BREAD; SPECIALTY
BREADS; CAKE AND SWEET GOODS; MEAT; CANDY; CRACKERS AND BISCUITS;
FROZEN FOODS; POTATO CHIPS, POP CORN AND SNACKS; CEREALS; FRESH
PRODUCE; PAPER GOODS AND TEXTILES; CIGARETTES; BUTTER; CHEWING GUM;
OTHER FOOD PRODUCTS; OTHER TOBACCO PRODUCTS; CHEESE; OLEOMARGARINE. 

FN28  SCITOVSKY, WELFARE AND COMPETITION (1951), 396; BAIN, PRICING,
DISTRIBUTION, AND EMPLOYMENT (1953 REV. ED.), 52. 

FN29  "132.  THE PRICE OF CELLOPHANE IS TODAY AN OBSTACLE TO ITS
SALES IN COMPETITION WITH OTHER FLEXIBLE PACKAGING MATERIALS. 

"133.  CELLOPHANE HAS ALWAYS BEEN HIGHER PRICED THAN THE TWO LARGEST
SELLING FLEXIBLE PACKAGING MATERIALS, WAX PAPER AND GLASSINE, AND THIS
HAS REPRESENTED A DISADVANTAGE TO SALES OF CELLOPHANE. 

"134.  DUPONT CONSIDERED AS A FACTOR IN THE DETERMINATION OF ITS
PRICES, THE PRICES OF WAXED PAPER, GLASSINE, GREASEPROOF, VEGETABLE
PARCHMENT, AND OTHER FLEXIBLE PACKAGING MATERIALS. 

"135.  DUPONT, IN REDUCING ITS PRICES, INTENDED TO NARROW PRICE
DIFFERENTIAL BETWEEN CELLOPHANE AND PACKAGING PAPERS, PARTICULARLY
GLASSINE AND WAXED PAPER.  THE OBJECTIVE OF THIS EFFORT HAS BEEN TO
INCREASE THE USE OF CELLOPHANE.  EACH PRICE REDUCTION WAS INTENDED TO
OPEN UP NEW USES FOR CELLOPHANE, AND TO ATTRACT NEW CUSTOMERS WHO HAD
NOT USED CELLOPHANE BECAUSE OF ITS PRICE." 

FN30  SEE, E.G., R. 4846. 

FN31  "140.  SOME USERS ARE SENSITIVE TO THE COST OF FLEXIBLE
PACKAGING MATERIALS; OTHERS ARE NOT.   USERS TO WHOM COST IS IMPORTANT
INCLUDE SUBSTANTIAL BUSINESS:  FOR EXAMPLE, GENERAL FOODS, ARMOUR,
CURTISS CANDY CO., AND SMALLER USERS IN THE BREAD INDUSTRY, CRACKER
INDUSTRY, AND FROZEN FOOD INDUSTRY.  THESE CUSTOMERS ARE UNWILLING TO
USE MORE CELLOPHANE BECAUSE OF ITS RELATIVELY HIGH PRICE, WOULD USE
MORE IF THE PRICE WERE REDUCED, AND HAVE INCREASED THEIR USE AS THE
PRICE OF CELLOPHANE HAS BEEN REDUCED. 

"141.  THE COST FACTOR SLIPS ACCOUNTS AWAY FROM CELLOPHANE.  THIS
HITS AT THE PRECARIOUS USERS, WHOSE PROFIT MARGINS ON THEIR PRODUCTS
ARE LOW, AND HAS BEEN PUT IN MOTION BY COMPETITIVE DEVELOPMENTS IN THE
USER'S TRADE.  EXAMPLES INCLUDE THE LOSSES OF BUSINESS TO WAXED PAPER
IN THE LATE 40'S, AND RECENT LOSSES TO GLASSINE IN CRACKER PACKAGING. 
"142.  THE PRICE OF CELLOPHANE WAS REDUCED TO EXPAND THE MARKET FOR
CELLOPHANE.  DUPONT DID NOT REDUCE PRICES FOR CELLOPHANE WITH INTENT OF
MONOPOLIZING MANUFACTURE OR WITH INTENT OF SUPPRESSING COMPETITORS. 

"143.  DUPONT REDUCED CELLOPHANE PRICES TO ENABLE SALES TO BE MADE
FOR NEW USES FROM WHICH HIGHER PRICES HAD EXCLUDED CELLOPHANE, AND TO
EXPAND SALES.  REDUCTIONS WERE MADE AS SALES VOLUME AND MARKET
CONDITIONS WARRANTED.  IN DETERMINING PRICE REDUCTIONS, DUPONT
CONSIDERED RELATIONSHIP BETWEEN ITS MANUFACTURING COSTS AND PROPOSED
PRICES, POSSIBLE ADDITIONAL VOLUME THAT MIGHT BE GAINED BY THE PRICE
REDUCTION, EFFECT OF PRICE REDUCTION UPON THE RETURN DUPONT WOULD
OBTAIN ON ITS INVESTMENT.  IT CONSIDERED THE EFFECT ITS LOWERED PRICE
MIGHT HAVE ON THE MANUFACTURE BY OTHERS, BUT THIS POSSIBLE RESULT OF A
PRICE REDUCTION WAS NEVER A MOTIVE FOR THE REDUCTION. 

"144.  DUPONT NEVER LOWERED CELLOPHANE PRICES BELOW COST, AND NEVER
DROPPED CELLOPHANE PRICES TEMPORARILY TO GAIN A COMPETITIVE ADVANTAGE. 

"145.  AS DUPONT'S MANUFACTURING COSTS DECLINED, 1924 TO 1935, DUPONT
REDUCED PRICES FOR CELLOPHANE.  WHEN COSTS OF RAW MATERIALS INCREASED
SUBSEQUENT TO 1935, IT POSTPONED REDUCTIONS UNTIL 1938 AND 1939. 
SUBSEQUENT INCREASES IN COST OF RAW MATERIAL AND LABOR BROUGHT ABOUT
PRICE INCREASES AFTER 1947." 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

FOR CONCURRING OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P. 413. 

FOR DISSENTING OPINION OF THE CHIEF JUSTICE, JOINED BY MR. JUSTICE
BLACK AND MR. JUSTICE DOUGLAS, SEE POST, P. 414. 

                               APPENDIX A. 

VIII.  RESULTS OF DU PONT'S COMPETITION WITH OTHER MATERIALS. 

                     (FINDINGS 279-292.) 

279.  DURING THE PERIOD DU PONT ENTERED THE FLEXIBLE PACKAGING
BUSINESS, AND SINCE ITS INTRODUCTION OF MOISTUREPROOF CELLOPHANE, SALES
OF CELLOPHANE HAVE INCREASED.  TOTAL VOLUME OF FLEXIBLE PACKAGING
MATERIALS USED IN THE UNITED STATES HAS ALSO INCREASED.  DU PONT'S
RELATIVE PERCENTAGE OF THE PACKAGING BUSINESS HAS GROWN AS A RESULT OF
ITS RESEARCH, PRICE, SALES AND CAPACITY POLICIES, BUT DU PONT
CELLOPHANE EVEN IN USES WHERE IT HAS COMPETED HAS NOT ATTAINED THE BULK
OF THE BUSINESS, DUE TO COMPETITION OF OTHER FLEXIBLE PACKAGING
MATERIALS. 

280.  OF THE PRODUCTION AND IMPORTS OF FLEXIBLE PACKAGING MATERIALS
IN 1949 MEASURED IN WRAPPING SURFACE, DU PONT CELLOPHANE ACCOUNTED FOR
LESS THAN 20% OF FLEXIBLE PACKAGING MATERIALS CONSUMED IN THE UNITED
STATES IN THAT YEAR.  THE FIGURES ON THIS ARE:

                                    THOUSANDS OF

                                                    SQUARE YARDS 

GLASSINE, GREASEPROOF AND VEGETABLE PARCHMENT PAPERS
3,125,826 

WAXING PAPERS (18 POUNDS AND OVER)
4,614,685 

SULPHITE BAG AND WRAPPING PAPERS
1,788,615 

ALUMINUM FOIL
1,317,807 

CELLOPHANE             3,366,068 

CELLULOSE ACETATE                               133,982 

PLIOFILM, POLYETHYLENE, SARAN AND CRY-O-RAP
373,871

                                                       __________ 

TOTAL            14,720,854

                       __________ 

TOTAL DU PONT CELLOPHANE PRODUCTION
2,629,747 

DU PONT CELLOPHANE PER CENT OF TOTAL UNITED STATES PRODUCTION 

AND IMPORTS OF THESE FLEXIBLE PACKAGING MATERIALS  17.9% 

281.  EIGHTY PERCENT OF CELLOPHANE MADE BY DU PONT IS SOLD FOR
PACKAGING IN THE FOOD INDUSTRY.  OF THIS QUANTITY, 80% IS SOLD FOR
PACKAGING BAKED GOODS, MEAT, CANDY, CRACKERS AND BISCUITS, FROZEN
FOODS, FRESH VEGETABLES AND PRODUCE, POTATO CHIPS, AND "SNACKS," SUCH
AS PEANUT BUTTER SANDWICHES, POPCORN, ETC.  A SMALL AMOUNT IS SOLD FOR
WRAPPING OF TEXTILES AND PAPER PRODUCTS, ETC.  LARGEST NON-FOOD USE OF
CELLOPHANE IS THE OVERWRAPPING OF CIGARETTE PACKAGES. 

THE BREAKDOWN OF DU PONT CELLOPHANE SALES FOR THE YEAR 1949 WAS: 

USE                            SALES                     PERCENT OF 

TOBACCO                                       (M POUNDS)
TOTAL SALES 

CIGARETTES                 20,584                       11.6 

CIGARS                                         3,195       1.8 

OTHER TOBACCO 1,657                        0.9

                 _______                       ____ 

TOTAL                                           25,436
14.3 

FOOD PRODUCTS 

CANDY & GUM                       17,054                        9.6 

BREAD & CAKE                                    40,081
22.5 

CRACKERS & BISCUITS      12,614                        7.1 

MEAT                             11,596                        6.5 

NOODLES & MACARONI                           2,602               1.5 

TEA & COFFEE         1,380                        0.8 

CEREALS                                2,487
1.4 

FROZEN FOODS                                     5,234
2.9 

DRIED FRUIT                 333                        0.2 

NUTS                                      2,946    1.7 

POPCORN & POTATO CHIPS                           6,929
   3.9 

DAIRY PRODUCTS                     3,808                        2.1 

FRESH PRODUCE                                    4,564          2.6 

UNCLASSIFIED FOODS    8,750                        4.9

                    _______                       ____ 

TOTAL                                          120,478
67.7 

MISCELLANEOUS 

HOSIERY                           1,370                        0.7 

TEXTILES                                         3,141
1.8 

DRUGS          1,031                        0.6 

RUBBER                                   317
0.2 

PAPER                                            2,736
 1.5 

UNCLASSIFIED               18,602                       10.5

                                _______   ____ 

TOTAL                                           27,197
  15.3 

DOMESTIC TOTAL                   173,011                       97.3 

EXPORT                                           4,820          2.7 

GRAND TOTAL  177,831                      100.0 

282.  SALES OF CELLOPHANE BY DU PONT IN 1951, BY PRINCIPAL USES, WERE
APPROXIMATELY AS FOLLOWS:

          POUNDS 

WHITE BREAD          BETWEEN 8 AND 9,000,000 

SPECIALTY BREADS                                    15,700,000 

CAKE AND OTHER BAKED SWEET GOODS
22,000,000 

MEAT
19,000,000 

CANDY (INCLUDING CHEWING GUM)            20,000,000 

CRACKERS AND BISCUITS                         17,000,000 

FROZEN FOODS                                       5,800,000 

CIGARETTES
23,000,000 

283.  1949 SALES OF 19 MAJOR REPRESENTATIVE CONVERTERS WHOSE BUSINESS
COVERED A SUBSTANTIAL SEGMENT OF THE TOTAL CONVERTING OF FLEXIBLE
PACKAGING MATERIALS FOR THAT YEAR SHOWED THE FOLLOWING AS TO THEIR
SALES OF FLEXIBLE PACKAGING MATERIALS, CLASSIFIED BY END USE: 

END USE     QUANTITY                  PERCENT

                       (MILLIONS                OF TOTAL 

BAKERY PRODUCTS                                 SQ. IN.) 
END USE 

CELLOPHANE        109,670                   6.8 

FOIL                               2,652                    .2 

GLASSINE                                           72,216
4.4 

PAPERS      1,440,413                  88.6 

FILMS                                 215                    .0

                                           _________          _____

1,625,166                 100.0 

CANDY 

CELLOPHANE                                     134,280
24.4 

FOIL                                              178,967
32.5 

GLASSINE                117,634                  21.4 

PAPERS                                     119,102
21.6 

FILMS                                                 484
  .1

         _________                 _____

                               550,467                 100.0 

SNACKS 

CELLOPHANE     61,250                  31.9 

FOIL                           1,571                    .8 

GLASSINE                                          120,556
62.8 

PAPERS      8,439                   4.4 

FILMS                              79                    .1

                                       _________      ____

191,895                 100.0 

MEAT AND POULTRY 

CELLOPHANE                                         59,016     34.9 

FOIL      88                    .1 

GLASSINE                        4,524                   2.7 

PAPERS                                            97,255     57.5 

FILMS   8,173                   4.8

               _________                 _____

                                     169,056  100.0 

CRACKERS AND BISCUITS 

CELLOPHANE                          29,960                  26.6 

FOIL                                                  192
.2 

GLASSINE     11,253                  10.0 

PAPERS                          71,147                  63.2 

FILMS                                                   8          .0

                                             _________
_____

                   112,560                 100.0 

FRESH PRODUCE 

CELLOPHANE                                         52,828
47.2 

FOIL                         43                    .1 

GLASSINE                                              96     .1 

PAPERS                                             51,035
45.6 

FILMS                      7,867                   7.0

                                  _________ _____

                                                111,869
100.0 

FROZEN FOOD EXCLUDING DAIRY PRODUCTS 

CELLOPHANE                                         31,684
33.6 

FOIL                     629                    .7 

GLASSINE                                        1.943 2.1 

PAPERS                                             56,925
60.3 

FILMS                   3,154                   3.3

                               _________                 _____

                                                 94,335
100.0 

284.  ABOUT 96% OF PACKAGED WHITE BREAD PRODUCED IN THE UNITED STATES
IS WRAPPED IN WAXED PAPER OR GLASSINE, AND ABOUT 6% IN CELLOPHANE.  THE
CELLOPHANE FIGURE INCLUDES SALES BY ALL U.S. PRODUCERS. 

285.  FORTY-EIGHT PERCENT OF SPECIALTY BREADS ARE WRAPPED IN DU PONT
CELLOPHANE, THE REMAINDER IN OTHER CELLOPHANE OR OTHER MATERIALS.  MOST
OF THIS BALANCE IS WRAPPED IN WAXED PAPER AND GLASSINE. 

286.  APPROXIMATELY 45% OF CAKE AND BAKED SWEET GOODS PACKAGED BY
WHOLESALE BAKERS IS WRAPPED IN DU PONT CELLOPHANE.  THE BALANCE IS
WRAPPED IN OTHER CELLOPHANE OR IN WAXED PAPER OR GLASSINE. 

287.  BETWEEN 25 AND 35% OF PACKAGED CANDY UNITS SOLD IN THE UNITED
STATES ARE WRAPPED IN DU PONT CELLOPHANE. 

288.  OF SPONGE AND SWEET CRACKERS AND BISCUITS COMBINED
APPROXIMATELY 25% TO 30% OF THE PACKAGED UNITS PRODUCED IN 1951 WERE
WRAPPED IN DU PONT CELLOPHANE.    289.  DU PONT CELLOPHANE AT THE
PRESENT TIME IS USED ON APPROXIMATELY 20 TO 30% OF PACKAGED RETAIL
UNITS OF FROZEN FOODS.  THE REMAINDER USE WAXED PAPER, WAXED GLASSINE,
POLYETHYLENE, PLIOFILM, CRY-O-VAC, OR VEGETABLE PARCHMENT. 

290.  APPROXIMATELY 20 TO 30% OF PACKAGES OF POTATO CHIPS AND OTHER
SNACKS ARE WRAPPED IN DU PONT CELLOPHANE.  MOST OF THE REMAINDER ARE
PACKAGED IN GLASSINE AND OTHER FLEXIBLE WRAPS. 

291.  APPROXIMATELY 4 TO 6% OF THE PACKAGED UNITS OF CEREAL ARE
WRAPPED IN DU PONT CELLOPHANE.  THE PRINCIPAL FLEXIBLE PACKAGING
MATERIALS USED ARE WAXED PAPER AND GLASSINE. 

292.  DU PONT CELLOPHANE IS USED AS AN OUTER WRAP ON THE PAPER-FOIL
PACKAGES FOR APPROXIMATELY 75 TO 80% OF CIGARETTES SOLD IN THE UNITED
STATES.  SALES FOR THIS USE REPRESENT ABOUT 11.6% OF DU PONT'S TOTAL
SALES OF CELLOPHANE. 

APPENDIX B OMITTED. 

               APPENDIX C.

    (FINDING OF FACT 130.) 

1949 AVERAGE WHOLESALE PRICES OF FLEXIBLE PACKAGING MATERIALS IN THE
UNITED STATES WERE:

                                             PRICE PER   PRICE
YIELD

    1,000 SQ. IN.     PER LB.      PER LB. 

PACKAGING MATERIAL                               (CENTS)
(CENTS) (SQ. IN.) 

SARAN 

100 GAUGE #517             6.1            99.0       16,300 

CELLULOSE ACETATE 

.00088"                                            3.3
82.0       25,000 

POLYETHYLENE 

.001" - 18" FLAT WIDTH                             5.4
81.0  15,000 

PLIOFILM 

120 GAUGE N 2              3.8            80.8       21,000 

ALUMINUM FOIL 

.00035"                                            1.8         52.2
29,200 

MOISTUREPROOF CELLOPHANE 

300 MST-51                                         2.3
47.8       21,000 

PLAIN CELLOPHANE 

300 PT                               2.1            44.8
21,500 

VEGETABLE PARCHMENT 

27#                 1.4            22.3       16,000 

BLEACHED GLASSINE 

25# 1.0            17.8       17,280 

BLEACHED GREASEPROOF 

25#                                                 .9   15.8
17,280 

PLAIN WAXED SULPHITE 

25# SELF-SEALING                                   1.1
15.2 14,400 

PLAIN WAXED SULPHITE 

25# COATED OPAQUE                          .7            11.9
17,280 

CRY-O-RAP                                          SOLD ONLY IN
CONVERTED FORM.  NO

       UNCONVERTED QUOTATIONS. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I CONCUR IN THE JUDGMENT OF THE COURT AND IN SO MUCH OF MR. JUSTICE
REED'S OPINION AS SUPPORTS THE CONCLUSION THAT CELLOPHANE DID NOT BY
ITSELF CONSTITUTE A CLOSED MARKET BUT WAS A PART OF THE RELEVANT MARKET
FOR FLEXIBLE PACKAGING MATERIALS. 

MR. JUSTICE REED HAS PITHILY DEFINED THE CONFLICTING CLAIMS IN THIS
CASE.  "THE CHARGE WAS MONOPOLIZATION OF CELLOPHANE.  THE DEFENSE, THAT
CELLOPHANE WAS MERELY A PART OF THE RELEVANT MARKET FOR FLEXIBLE
PACKAGING MATERIALS."  SINCE THIS DEFENSE IS SUSTAINED, THE JUDGMENT
BELOW MUST BE AFFIRMED AND IT BECOMES UNNECESSARY TO CONSIDER WHETHER
DU PONT'S POWER OVER TRADE IN CELLOPHANE WOULD, HAD THE DEFENSE FAILED,
COME WITHIN THE PROHIBITION OF "MONOPOLIZING" UNDER SEC. 2 OF THE
SHERMAN ACT.  NEEDLESS DISQUISITION ON THE DIFFICULT SUBJECT OF SINGLE
FIRM MONOPOLY SHOULD BE AVOIDED SINCE THE CASE MAY BE DISPOSED OF
WITHOUT CONSIDERATION OF THIS PROBLEM. 

THE BOUNDARY BETWEEN THE COURSE OF EVENTS BY WHICH A BUSINESS MAY
REACH A POWERFUL POSITION IN AN INDUSTRY WITHOUT OFFENDING THE OUTLAWRY
OF "MONOPOLIZING" UNDER SEC. 2 OF THE SHERMAN ACT AND THE COURSE OF
EVENTS WHICH BRINGS THE ATTAINMENT OF THAT RESULT WITHIN THE
CONDEMNATION OF THAT SECTION, CANNOT BE ESTABLISHED BY GENERAL
PHRASES.  IT MUST BE DETERMINED WITH REFERENCE TO SPECIFIC FACTS UPON
CONSIDERATIONS ANALOGOUS TO THOSE BY WHICH SEC. 1 OF THE SHERMAN ACT IS
APPLIED.  THESE WERE ILLUMINATINGLY STATED BY MR. JUSTICE BRANDEIS FOR
THE COURT: 

"THE TRUE TEST OF LEGALITY IS WHETHER THE RESTRAIN IMPOSED IS SUCH AS
MERELY REGULATES AND PERHAPS THEREBY PROMOTES COMPETITION OR WHETHER IT
IS SUCH AS MAY SUPPRESS OR EVEN DESTROY COMPETITION.  TO DETERMINE THAT
QUESTION THE COURT MUST ORDINARILY CONSIDER THE FACTS PECULIAR TO THE
BUSINESS TO WHICH THE RESTRAINT IS APPLIED; ITS CONDITION BEFORE AND
AFTER THE RESTRAINT WAS IMPOSED; THE NATURE OF THE RESTRAINT AND ITS
EFFECT, ACTUAL OR PROBABLE.  THE HISTORY OF THE RESTRAINT, THE EVIL
BELIEVED TO EXIST, THE REASON FOR ADOPTING THE PARTICULAR REMEDY, THE
PURPOSE OR END SOUGHT TO BE ATTAINED, ARE ALL RELEVANT FACTS  ...  ." 
BOARD OF TRADE OF THE CITY OF CHICAGO V. UNITED STATES, 246 U.S. 231,
238. 

THE SO-CALLED ISSUES OF FACT AND LAW THAT CALL FOR ADJUDICATION IN THIS
LEGAL TERRITORY ARE UNITED, AND INTRINSICALLY SO, WITH FACTORS THAT
ENTAIL SOCIAL AND ECONOMIC JUDGMENT.  ANY CONSIDERATION OF "MONOPOLY"
UNDER THE SHERMAN LAW CAN HARDLY ESCAPE JUDGMENT, EVEN IF ONLY IMPLIED,
ON SOCIAL AND ECONOMIC ISSUES.  IT HAD BEST BE WITHHELD UNTIL A CASE
INESCAPABLY CALLS FOR IT. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

THIS CASE, LIKE MANY UNDER THE SHERMAN ACT, TURNS UPON THE PROPER
DEFINITION OF THE MARKET.  IN DEFINING THE MARKET IN WHICH DU PONT'S
ECONOMIC POWER IS TO BE MEASURED, THE MAJORITY VIRTUALLY EMASCULATE
SEC. 2 OF THE SHERMAN ACT.  THEY ADMIT THAT "CELLOPHANE COMBINES THE
DESIRABLE ELEMENTS OF TRANSPARENCY, STRENGTH AND CHEAPNESS MORE
DEFINITELY THAN ANY OF" A HOST OF OTHER PACKAGING MATERIALS.  YET THEY
HOLD THAT ALL OF THOSE MATERIALS ARE SO INDISTINGUISHABLE FROM
CELLOPHANE AS TO WARRANT THEIR INCLUSION IN THE MARKET.  WE CANNOT
AGREE THAT CELLOPHANE, IN THE LANGUAGE OF TIMES-PICAYUNE PUBLISHING CO.
V. UNITED STATES, 345 U.S. 594, 613, IS "THE SELFSAME PRODUCT" AS
GLASSINE, GREASEPROOF AND VEGETABLE PARCHMENT PAPERS, WAXED PAPERS,
SULPHITE PAPERS, ALUMINUM FOIL, CELLULOSE ACETATE, AND PLIOFILM AND
OTHER FILMS.  (FN1) 

THE MAJORITY OPINION STATES THAT "IT WILL ADEQUATELY ILLUSTRATE THE
SIMILARITY IN CHARACTERISTICS OF THE VARIOUS PRODUCTS BY NOTING HERE
FINDING 62 AS TO GLASSINE."  BUT FINDING 62 MERELY STATES THE RESPECTS
IN WHICH THE SELECTED FLEXIBLE PACKAGING MATERIALS ARE AS SATISFACTORY
AS CELLOPHANE; IT DOES NOT COMPARE ALL THE PHYSICAL PROPERTIES OF
CELLOPHANE AND OTHER MATERIALS.  THE TABLE INCORPORATED IN FINDING 59
DOES MAKE SUCH A COMPARISON, AND ENABLES US TO NOTE CELLOPHANE'S UNIQUE
COMBINATION OF QUALITIES LACKING AMONG LESS EXPENSIVE MATERIALS IN
VARYING DEGREES.  (FN2)  A GLANCE AT THIS TABLE REVEALS THAT CELLOPHANE
HAS A HIGH BURSTING STRENGTH WHILE GLASSINE'S IS LOW; THAT CELLOPHANE'S
PERMEABILITY TO GASES IS LOWER THAN THAT OF GLASSINE; AND THAT BOTH ITS
TRANSPARENCY AND ITS RESISTANCE TO GREASE AND OILS ARE GREATER THAN
GLASSINE'S.  SIMILARLY, WE SEE THAT WAXED PAPER'S BURSTING STRENGTH IS
LESS THAN CELLOPHANE'S AND THAT IT IS HIGHLY PERMEABLE TO GASES AND
OFFERS NO RESISTANCE WHATSOEVER TO GREASE AND OILS.  WITH RESPECT TO
THE TWO OTHER MAJOR PRODUCTS HELD TO BE CLOSE SUBSTITUTES FOR
CELLOPHANE, FINDING 59 MAKES THE MAJORITY'S MARKET DEFINITION MORE
DUBIOUS.  IN CONTRAST TO CELLOPHANE, ALUMINUM FOIL IS ACTUALLY OPAQUE
AND HAS A LOW BURSTING STRENGTH.  AND SULPHITE PAPERS, IN ADDITION TO
BEING OPAQUE, ARE HIGHLY PERMEABLE TO BOTH MOISTURE AND GASES, HAVE NO
RESISTANCE TO GREASE AND OILS, HAVE A LOWER BURSTING STRENGTH THAN
CELLOPHANE, AND ARE NOT EVEN HEAT SEALABLE.  INDEED, THE MAJORITY GO
FURTHER THAN PLACING CELLOPHANE IN THE SAME MARKET WITH SUCH PRODUCTS. 
THEY ALSO INCLUDE THE TRANSPARENT FILMS, WHICH ARE MORE EXPENSIVE THAN
CELLOPHANE.  THESE BEAR EVEN LESS RESEMBLANCE TO THE LOWER PRICED
PACKAGING MATERIALS THAN DOES CELLOPHANE.  THE JUXTAPOSITION OF ONE OF
THESE FILMS, CRY-O-RAP, WITH SULPHITE IN THE TABLE FACILITATES A
COMPARISON WHICH SHOWS THAT CRY-O-RAP IS MARKEDLY DIFFERENT AND FAR
SUPERIOR. 

IF THE CONDUCT OF BUYERS INDICATED THAT GLASSINE, WAXED AND SULPHITE
PAPERS AND ALUMINUM FOIL WERE ACTUALLY "THE SELFSAME PRODUCTS" AS
CELLOPHANE, THE QUALITATIVE DIFFERENCES DEMONSTRATED BY THE COMPARISON
OF PHYSICAL PROPERTIES IN FINDING 59 WOULD NOT BE CONCLUSIVE.  BUT THE
RECORD PROVIDES CONVINCING PROOF THAT BUSINESSMEN DID NOT SO REGARD
THESE PRODUCTS.  DURING THE PERIOD COVERED BY THE COMPLAINT (1923-1947)
CELLOPHANE ENJOYED PHENOMENAL GROWTH.  DU PONT'S 1924 PRODUCTION WAS
361,249 POUNDS WHICH SOLD FOR $1,306,662.  ITS 1947 PRODUCTION WAS
133,502,858 POUNDS, WHICH SOLD FOR $55,339,626.  FINDINGS 297 AND 337. 
YET THROUGHOUT THIS PERIOD THE PRICE OF CELLOPHANE WAS FAR GREATER THAN
THAT OF GLASSINE, WAXED PAPER OR SULPHITE PAPER.  FINDING 136 STATES
THAT IN 1929 CELLOPHANE'S PRICE WAS SEVEN TIMES THAT OF GLASSINE; IN
1934, FOUR TIMES, AND IN 1949 STILL MORE THAN TWICE GLASSINE'S PRICE. 
REFERENCE TO DX-994, THE GRAPH UPON WHICH FINDING 136 IS BASED, SHOWS
THAT CELLOPHANE HAD A SIMILAR PRICE RELATION TO WAXED PAPER AND THAT
SULPHITE PAPER SOLD AT EVEN LESS THAN GLASSINE AND WAXED PAPER.  WE
CANNOT BELIEVE THAT BUYERS, PRACTICAL BUSINESSMEN, WOULD HAVE BOUGHT
CELLOPHANE IN INCREASING AMOUNTS OVER A QUARTER OF A CENTURY IF CLOSE
SUBSTITUTES WERE AVAILABLE AT FROM ONE-SEVENTH TO ONE-HALF CELLOPHANE'S
PRICE.  THAT THEY DID SO IS TESTIMONY TO CELLOPHANE'S DISTINCTIVENESS. 

THE INFERENCE YIELDED BY THE CONDUCT OF CELLOPHANE BUYERS IS
REINFORCED BY THE CONDUCT OF SELLERS OTHER THAN DU PONT.  FINDING 587
STATES THAT SYLVANIA, THE ONLY OTHER CELLOPHANE PRODUCER, ABSOLUTELY
AND IMMEDIATELY FOLLOWED EVERY DU PONT PRICE CHANGE, EVEN DATING BACK
ITS PRICE LIST TO THE EFFECTIVE DATE OF DU PONT'S CHANGE.  PRODUCERS OF
GLASSINE AND WAXED PAPER, ON THE OTHER HAND, DISPLAYED APPARENT
INDIFFERENCE TO DU PONT'S REPEATED AND SUBSTANTIAL PRICE CUTS.  DX-994
SHOWS THAT FROM 1924 TO 1932 DU PONT DROPPED THE PRICE OF PLAIN
CELLOPHANE 84%, WHILE THE PRICE OF GLASSINE REMAINED CONSTANT.  (FN3)
AND DURING THE PERIOD 1933-1946 THE PRICES FOR GLASSINE AND WAXED PAPER
ACTUALLY INCREASED IN THE FACE OF A FURTHER 21% DECLINE IN THE PRICE OF
CELLOPHANE.  IF "SHIFTS OF BUSINESS" DUE TO "PRICE SENSITIVITY" HAD
BEEN SUBSTANTIAL, GLASSINE AND WAXED PAPER PRODUCERS WHO WANTED TO STAY
IN BUSINESS WOULD HAVE BEEN COMPELLED BY MARKET FORCES TO MEET DU
PONT'S PRICE CHALLENGE JUST AS SYLVANIA WAS.  THE MAJORITY CORRECTLY
POINT OUT THAT: 

"AN ELEMENT FOR CONSIDERATION AS TO CROSS-ELASTICITY OF DEMAND
BETWEEN PRODUCTS IS THE RESPONSIVENESS OF THE SALES OF ONE PRODUCT TO
PRICE CHANGES OF THE OTHER.  IF A SLIGHT DECREASE IN THE PRICE OF
CELLOPHANE CAUSES A CONSIDERABLE NUMBER OF CUSTOMERS OF OTHER FLEXIBLE
WRAPPINGS TO SWITCH TO CELLOPHANE, IT WOULD BE AN INDICATION THAT A
HIGH CROSS-ELASTICITY OF DEMAND EXISTS BETWEEN THEM; THAT THE PRODUCTS
COMPETE IN THE SAME MARKET." 

SURELY THERE WAS MORE THAN "A SLIGHT DECREASE IN THE PRICE OF
CELLOPHANE" DURING THE PERIOD COVERED BY THE COMPLAINT.  THAT PRODUCERS
OF GLASSINE AND WAXED PAPER REMAINED DOMINANT IN THE FLEXIBLE PACKAGING
MATERIALS MARKET WITHOUT MEETING CELLOPHANE'S TREMENDOUS PRICE CUTS
CONVINCES US THAT CELLOPHANE WAS NOT IN EFFECTIVE COMPETITION WITH
THEIR PRODUCTS.  (FN4) 

CERTAINLY DU PONT ITSELF SHARED OUR VIEW.  FROM THE FIRST, DU PONT
RECOGNIZED THAT IT NEED NOT CONCERN ITSELF WITH COMPETITION FROM OTHER
PACKAGING MATERIALS.  FOR EXAMPLE, WHEN DU PONT WAS CONTEMPLATING ENTRY
INTO CELLOPHANE PRODUCTION, ITS DEVELOPMENT DEPARTMENT REPORTED THAT
GLASSINE "IS SO INFERIOR THAT IT BELONGS IN AN ENTIRELY DIFFERENT CLASS
AND HAS HARDLY TO BE CONSIDERED AS A COMPETITOR OF CELLOPHANE."  (FN5)
THIS WAS STILL DU PONT'S VIEW IN 1950 WHEN ITS SURVEY OF COMPETITIVE
PROSPECTS WHOLLY OMITTED REFERENCE TO GLASSINE, WAXED PAPER OR SULPHITE
PAPER AND STATED THAT "COMPETITION FOR DU PONT CELLOPHANE WILL COME
FROM COMPETITIVE CELLOPHANE AND FROM NON-CELLOPHANE FILMS MADE BY US OR
BY OTHERS."  (FN6) 

DU PONT'S EVERY ACTION WAS DIRECTED TOWARD MAINTAINING DOMINANCE OVER
CELLOPHANE.  ITS 1923 AGREEMENTS WITH LA CELLOPHANE, THE FRENCH CONCERN
WHICH FIRST PRODUCED COMMERCIAL CELLOPHANE, GAVE DU PONT EXCLUSIVE
NORTH AND CENTRAL AMERICAN RIGHTS TO CELLOPHANE'S TECHNOLOGY,
MANUFACTURE AND SALE, AND PROVIDED, WITHOUT ANY LIMITATION IN TIME,
THAT ALL EXISTING AND FUTURE INFORMATION PERTAINING TO THE CELLOPHANE
PROCESS BE CONSIDERED "SECRET AND CONFIDENTIAL," AND BE HELD IN AN
EXCLUSIVE COMMON POOL.  (FN7)  IN ITS SUBSEQUENT AGREEMENTS WITH
FOREIGN LICENSEES, DU PONT WAS CAREFUL TO PRESERVE ITS CONTINENTAL
MARKET INVIOLATE.  (FN8)  IN 1929, WHILE IT WAS STILL THE SOLE DOMESTIC
PRODUCER OF CELLOPHANE, DU PONT WON ITS LONG STRUGGLE TO RAISE THE
TARIFF FROM 25% TO 60%, AD VALOREM, ON CELLOPHANE IMPORTS, (FN9)
SUBSTANTIALLY FORECLOSING FOREIGN COMPETITION.  WHEN SYLVANIA BECAME
THE SECOND AMERICAN CELLOPHANE PRODUCER THE FOLLOWING YEAR AND DU PONT
FILED SUIT CLAIMING INFRINGEMENT OF ITS MOISTUREPROOF PATENTS, THEY
SETTLED THE SUIT BY ENTERING INTO A CROSS-LICENSING AGREEMENT.  UNDER
THIS AGREEMENT, DU PONT OBTAINED THE RIGHT TO EXCLUDE THIRD PERSONS
FROM USE OF ANY PATENTABLE MOISTUREPROOF INVENTION MADE DURING THE NEXT
15 YEARS BY THE SOLE OTHER DOMESTIC CELLOPHANE PRODUCER, AND, BY A
PROHIBITIVE ROYALTY PROVISION, IT LIMITED SYLVANIA'S MOISTUREPROOF
PRODUCTION TO APPROXIMATELY 20% OF THE INDUSTRY'S MOISTUREPROOF SALES. 
(FN10)  THE RECORD SHOWS THAT DU PONT AND SYLVANIA WERE AWARE THAT, BY
SETTLING THE INFRINGEMENT SUIT, THEY AVOIDED THE POSSIBILITY THAT THE
COURTS MIGHT HOLD THE PATENT CLAIMS INVALID AND THEREBY OPEN CELLOPHANE
MANUFACTURE TO ADDITIONAL COMPETITION.  (FN11)  IF CLOSE SUBSTITUTES
FOR CELLOPHANE HAD BEEN COMMERCIALLY AVAILABLE, DU PONT, AN ENLIGHTENED
ENTERPRISE, WOULD NOT HAVE GONE TO SUCH LENGTHS TO CONTROL CELLOPHANE. 
AS PREDICTED BY ITS 1923 MARKET ANALYSIS, (FN12) DU PONT'S DOMINANCE
IN CELLOPHANE PROVED ENORMOUSLY PROFITABLE FROM THE OUTSET.  AFTER ONLY
FIVE YEARS OF PRODUCTION, WHEN DU PONT BOUGHT OUT THE MINORITY STOCK
INTERESTS IN ITS CELLOPHANE SUBSIDIARY, IT HAD TO PAY MORE THAN FIFTEEN
TIMES THE ORIGINAL PRICE OF THE STOCK.  (FN13)  BUT SUCH SUCCESS WAS
NOT LIMITED TO THE PERIOD OF INNOVATION, LIMITED SALES AND COMPLETE
DOMESTIC MONOPOLY.  A CONFIDENTIAL DU PONT REPORT SHOWS THAT DURING THE
PERIOD 1937-1947, DESPITE GREAT EXPANSION OF SALES, DU PONT'S
"OPERATIVE RETURN" (BEFORE TAXES) AVERAGED 31%, WHILE ITS AVERAGE "NET
RETURN" (AFTER DEDUCTION OF TAXES, BONUSES, AND FUNDAMENTAL RESEARCH
EXPENDITURES) WAS 15.9%.  (FN14)  SUCH PROFITS PROVIDE A POWERFUL
INCENTIVE FOR THE ENTRY OF COMPETITORS.  (FN15)  YET FROM 1924 TO 1951
ONLY ONE NEW FIRM, SYLVANIA, WAS ABLE TO BEGIN CELLOPHANE PRODUCTION. 
AND SYLVANIA COULD NOT HAVE ENTERED IF LA CELLOPHANE'S SECRET PROCESS
HAD NOT BEEN STOLEN.  (FN16)  IT IS SIGNIFICANT THAT FOR 15 YEARS OLIN
INDUSTRIES, A SUBSTANTIAL FIRM, WAS UNSUCCESSFUL IN ITS ATTEMPT TO
PRODUCE CELLOPHANE, FINALLY ABANDONING THE PROJECT IN 1944 AFTER HAVING
SPENT ABOUT $1,000,000.  (FN17)  WHEN THE GOVERNMENT BROUGHT THIS SUIT,
DU PONT, "TO REDUCE THE HAZARD OF BEING JUDGED TO HAVE A MONOPOLY OF
THE U.S. CELLOPHANE BUSINESS," (FN18) DECIDED TO LET OLIN ENTER THE
INDUSTRY.  DESPITE THIS DEMONSTRATION OF THE CONTROL ACHIEVED BY DU
PONT THROUGH ITS EXCLUSIVE DOMINION OVER THE CELLOPHANE PROCESS, THE
DISTRICT COURT FOUND THAT DU PONT COULD NOT EXCLUDE COMPETITORS FROM
THE MANUFACTURE OF CELLOPHANE.  FINDING 727.  THIS FINDING IS "CLEARLY
ERRONEOUS."  (FN19)  THE MAJORITY AVOID PASSING UPON FINDING 727 BY
STATING THAT IT IS "IMMATERIAL ...  IF THE MARKET IS FLEXIBLE PACKAGING
MATERIAL."  THEY DO NOT APPEAR TO DISAGREE WITH OUR CONCLUSION,
HOWEVER, SINCE THEY CONCEDE THAT "  ...  IT MAY BE PRACTICALLY
IMPOSSIBLE FOR ANYONE TO COMMENCE MANUFACTURING CELLOPHANE WITHOUT FULL
ACCESS TO DU PONT'S TECHNIQUE." 

THE TRIAL COURT FOUND THAT: 

"DU PONT HAS NO POWER TO SET CELLOPHANE PRICES ARBITRARILY.  IF
PRICES FOR CELLOPHANE INCREASE IN RELATION TO PRICES OF OTHER FLEXIBLE
PACKAGING MATERIALS IT WILL LOSE BUSINESS TO MANUFACTURERS OF SUCH
MATERIALS IN VARYING AMOUNTS FOR EACH OF DUPONT CELLOPHANE'S MAJOR END
USES."  FINDING 712. 

THIS FURTHER REVEALS ITS MISCONCEPTION OF THE ANTITRUST LAWS.  A
MONOPOLIST SEEKING TO MAXIMIZE PROFITS CANNOT RAISE PRICES
"ARBITRARILY."  HIGHER PRICES OF COURSE MEAN SMALLER SALES, BUT THEY
ALSO MEAN HIGHER PER-UNIT PROFIT.  LOWER PRICES WILL INCREASE SALES BUT
REDUCE PER-UNIT PROFIT.  WITHIN THESE LIMITS A MONOPOLIST HAS A
CONSIDERABLE DEGREE OF LATITUDE IN DETERMINING WHICH COURSE TO PURSUE
IN ATTEMPTING TO MAXIMIZE PROFITS.  THE TRIAL JUDGE THOUGHT THAT, IF DU
PONT RAISED ITS PRICE, THE MARKET WOULD "PENALIZE" IT WITH SMALLER
PROFITS AS WELL AS LOWER SALES.  (FN20)  DU PONT PROVED HIM WRONG. 
WHEN 1947 OPERATING EARNINGS DROPPED BELOW 26% FOR THE FIRST TIME IN 10
YEARS, IT INCREASED CELLOPHANE'S PRICE 7% AND BOOSTED ITS EARNINGS IN
1948.  DU PONT'S DIVISION MANAGER THEN REPORTED THAT "IF AN OPERATIVE
RETURN OF 31% IS CONSIDERED INADEQUATE THEN AN UPWARD REVISION IN
PRICES WILL BE NECESSARY TO IMPROVE THE RETURN."  (FN21)  IT IS THIS
LATITUDE WITH RESPECT TO PRICE, THIS BROAD POWER OF CHOICE, THAT THE
ANTITRUST LAWS FORBID.  (FN22)  DU PONT'S INDEPENDENT PRICING POLICY
AND THE GREAT PROFITS CONSISTENTLY YIELDED BY THAT POLICY LEAVE NO ROOM
FOR DOUBT THAT IT HAD POWER TO CONTROL THE PRICE OF CELLOPHANE.  THE
FINDINGS OF FACT CITED BY THE MAJORITY CANNOT AFFECT THIS CONCLUSION. 
(FN23)  FOR THEY MERELY DEMONSTRATE THAT, DURING THE PERIOD COVERED BY
THE COMPLAINT, DU PONT WAS A "GOOD MONOPOLIST," I.E., THAT IT DID NOT
ENGAGE IN PREDATORY PRACTICES AND THAT IT CHOSE TO MAXIMIZE PROFITS BY
LOWERING PRICE AND EXPANDING SALES.  PROOF OF ENLIGHTENED EXERCISE OF
MONOPOLY POWER CERTAINLY DOES NOT REFUTE THE EXISTENCE OF THAT POWER. 

THE MAJORITY OPINION PURPORTS TO REJECT THE THEORY OF "INTERINDUSTRY
COMPETITION."  BRICK, STEEL, WOOD, CEMENT AND STONE, IT SAYS, ARE "TOO
DIFFERENT" TO BE PLACED IN THE SAME MARKET.  BUT CELLOPHANE, GLASSINE,
WAX PAPERS, SULPHITE PAPERS, GREASEPROOF AND VEGETABLE PARCHMENT
PAPERS, ALUMINUM FOIL, CELLULOSE ACETATE, PLIOFILM AND OTHER FILMS ARE
NOT "TOO DIFFERENT," THE OPINION CONCLUDES.  THE MAJORITY APPROACH
WOULD APPARENTLY ENABLE A MONOPOLIST OF MOTION PICTURE EXHIBITION TO
AVOID SHERMAN ACT CONSEQUENCES BY SHOWING THAT MOTION PICTURES COMPETE
IN SUBSTANTIAL MEASURE WITH LEGITIMATE THEATER, TELEVISION, RADIO,
SPORTING EVENTS AND OTHER FORMS OF ENTERTAINMENT.  HERE, TOO, "SHIFTS
OF BUSINESS" UNDOUBTEDLY ACCOMPANY FLUCTUATIONS IN PRICE AND 'THERE ARE
MARKET ALTERNATIVES THAT BUYERS MAY READILY USE FOR THEIR PURPOSES." 
YET, IN UNITED STATES V. PARAMOUNT PICUTRES, 334 U.S. 131, WHERE THE
DISTRICT COURT HAD CONFINED THE RELEVANT MARKET TO THAT FOR NATIONWIDE
MOVIE EXHIBITION, THIS COURT REMANDED THE CASE TO THE DISTRICT COURT
WITH DIRECTIONS TO DETERMINE WHETHER THERE WAS A MONOPOLY ON THE PART
OF THE FIVE MAJOR DISTRIBUTORS "IN THE FIRST-RUN FIELD FOR THE ENTIRE
COUNTRY, IN THE FIRST-RUN FIELD IN THE 92 LARGEST CITIES OF THE
COUNTRY, OR IN THE FIRST-RUN FIELD IN SEPARATE LOCALITIES."  334 U.S.,
AT 172.  SIMILARLY, IT IS DIFFICULT TO SQUARE THE MAJORITY VIEW WITH
UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, A LANDMARK SEC.
2 CASE.  THERE JUDGE LEARNED HAND, REVERSING A DISTRICT COURT, HELD
THAT THE CLOSE COMPETITION WHICH "SECONDARY" (USED) ALUMINUM OFFERED TO
"VIRGIN" ALUMINUM DID NOT JUSTIFY INCLUDING THE FORMER WITHIN THE
RELEVANT MARKET FOR MEASURING ALCOA'S ECONOMIC POWER.  AGAINST THESE
AND OTHER PRECEDENTS, WHICH THE COURT'S OPINION APPROVES BUT DOES NOT
FOLLOW, THE FORMULA OF "REASONABLE INTERCHANGEABILITY," AS APPLIED BY
THE MAJORITY APPEARS INDISTINGUISHABLE FROM THE THEORY OF
"INTERINDUSTRY COMPETITION."  THE DANGER IN IT IS THAT, AS DEMONSTRATED
IN THIS CASE, IT IS "PERFECTLY COMPATIBLE WITH A FULLY MONOPOLIZED
ECONOMY."  (FN24) 

THE MAJORITY HOLD IN EFFECT THAT, BECAUSE CELLOPHANE MEETS
COMPETITION FOR MANY END USES, THOSE BUYERS FOR OTHER USES WHO NEED OR
WANT ONLY CELLOPHANE ARE NOT ENTITLED TO THE BENEFITS OF COMPETITION
WITHIN THE CELLOPHANE INDUSTRY.  FOR EXAMPLE, FINDING 282 SHOWS THAT
THE LARGEST SINGLE USE OF CELLOPHANE IN 1951 WAS FOR WRAPPING
CIGARETTES, AND FINDING 292 SHOWS THAT 75 TO 80% OF ALL CIGARETTES ARE
WRAPPED WITH CELLOPHANE.  AS THE RECENT REPORT OF THE ATTORNEY
GENERAL'S NATIONAL COMMITTEE TO STUDY THE ANTITRUST LAWS STATES:  "IN
THE INTEREST OF RIVALRY THAT EXTENDS TO ALL BUYERS AND ALL USES,
COMPETITION AMONG RIVALS WITHIN THE INDUSTRY IS ALWAYS IMPORTANT." 
(FN25) FURTHERMORE, THOSE BUYERS WHO HAVE "REASONABLE ALTERNATIVES"
BETWEEN CELLOPHANE AND OTHER PRODUCTS ARE ALSO ENTITLED TO COMPETITION
WITHIN THE CELLOPHANE INDUSTRY, FOR SUCH COMPETITION MAY LEAD TO LOWER
PRICES AND IMPROVED QUALITY. 

THE FOREGOING ANALYSIS OF THE RECORD SHOWS CONCLUSIVELY THAT
CELLOPHANE IS THE RELEVANT MARKET.  SINCE DU PONT HAS THE LION'S SHARE
OF THAT MARKET, IT MUST HAVE MONOPOLY POWER, AS THE MAJORITY CONCEDE. 
(FN26)  THIS BEING SO, WE THINK IT CLEAR THAT, IN THE CIRCUMSTANCES OF
THIS CASE, DU PONT IS GUILTY OF "MONOPOLIZATION."  THE BRIEFEST SKETCH
OF DU PONT'S BUSINESS HISTORY PRECLUDES IT FROM FALLING WITHIN THE
"EXCEPTION TO THE SHERMAN ACT PROHIBITIONS OF MONOPOLY POWER" (MAJORITY
OPINION, PP. 390-391) BY SUCCESSFULLY ASSERTING THAT MONOPOLY WAS
"THRUST UPON" IT.  DU PONT WAS NOT "THE PASSIVE BENEFICIARY OF A
MONOPOLY" WITHIN THE MEANING OF UNITED STATES V. ALUMINUM CO. OF
AMERICA, SUPRA, AT 429-430.  IT SOUGHT AND MAINTAINED DOMINANCE THROUGH
ILLEGAL AGREEMENTS DIVIDING THE WORLD MARKET, CONCEALING AND
SUPPRESSING TECHNOLOGICAL INFORMATION, AND RESTRICTING ITS LICENSEE'S
PRODUCTION BY PROHIBITIVE ROYALTIES, (FN27) AND THROUGH NUMEROUS
MANEUVERS WHICH MIGHT HAVE BEEN "HONESTLY INDUSTRIAL" BUT WHOSE
NECESSARY EFFECT WAS NEVERTHELESS EXCLUSIONARY.  (FN28)  DU PONT CANNOT
BEAR "THE BURDEN OF PROVING THAT IT OWES ITS MONOPOLY SOLELY TO
SUPERIOR SKILL  ...  ."  UNITED STATES V. UNITED SHOE MACHINERY CORP.,
110 F. SUPP. 295, 342, AFF'D PER CURIAM, 347 U.S. 521. 

NOR CAN DU PONT RELY UPON ITS MOISTUREPROOF PATENTS AS A DEFENSE TO
THE CHARGE OF MONOPOLIZATION.  ONCE DU PONT ACQUIRED THE BASIC
CELLOPHANE PROCESS AS A RESULT OF ITS ILLEGAL 1923 AGREEMENTS WITH LA
CELLOPHANE, DEVELOPMENT OF MOISTUREPROOFING WAS RELATIVELY EASY.  DU
PONT'S MOISTUREPROOF PATENTS WERE FULLY SUBJECT TO THE EXCLUSIVE
POOLING ARRANGEMENTS AND TERRITORIAL RESTRICTIONS ESTABLISHED BY THOSE
AGREEMENTS.  AND THEY WERE THE SUBJECT OF THE ILLICIT AND EXCLUSIONARY
DU PONT-SYLVANIA AGREEMENT.  HENCE, THESE PATENTS BECAME TAINTED AS
PART AND PARCEL OF DU PONT'S ILLEGAL MONOPOLY.  CF., MERCOID CORP. V.
MID-CONTINENT CO., 320 U.S. 661, 670.  ANY OTHER RESULT WOULD PERMIT
ONE WHO MONOPOLIZES A MARKET TO ESCAPE THE STATUTORY LIABILITY BY
PATENTING A SIMPLE IMPROVEMENT ON HIS PRODUCT. 

IF COMPETITION IS AT THE CORE OF THE SHERMAN ACT, WE CANNOT AGREE
THAT IT WAS CONSISTENT WITH THAT ACT FOR THE ENORMOUSLY LUCRATIVE
CELLOPHANE INDUSTRY TO HAVE NO MORE THAN TWO SELLERS FROM 1924 TO
1951.  THE CONDUCT OF DU PONT AND SYLVANIA ILLUSTRATES THAT A FEW
SELLERS TEND TO ACT LIKE ONE AND THAT AN INDUSTRY WHICH DOES NOT HAVE A
COMPETITIVE STRUCTURE WILL NOT HAVE COMPETITIVE BEHAVIOR.  THE PUBLIC
SHOULD NOT BE LEFT TO RELY UPON THE DISPENSATIONS OF MANAGEMENT IN
ORDER TO OBTAIN THE BENEFITS WHICH NORMALLY ACCOMPANY COMPETITION. 
SUCH BENEFICIENCE IS OF UNCERTAIN TENURE.  ONLY ACTUAL COMPETITION CAN
ASSURE LONG-RUN ENJOYMENT OF THE GOALS OF A FREE ECONOMY. 

WE WOULD REVERSE THE DECISION BELOW AND REMAND THE CAUSE TO THE
DISTRICT COURT WITH DIRECTIONS TO DETERMINE THE RELIEF WHICH SHOULD BE
GRANTED AGAINST DU PONT. 

FN1  IN TIMES-PICAYUNE PUBLISHING CO. V. UNITED STATES, 345 U.S. 594,
612, NOTE 31, THE COURT SAID: 

"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." 

FN2  SEE 118 F. SUPP., AT 64.  THE MAJORITY OPINION QUOTES AT LENGTH
FROM STOCKING AND MUELLER, THE CELLOPHANE CASE, XLV AMER.  ECONOMIC
REV. 29, 48-49, IN NOTING THE COMPARATIVE CHARACTERISTICS OF CELLOPHANE
AND OTHER PRODUCTS.  UNFORTUNATELY, THE OPINION FAILS TO QUOTE THE
CONCLUSION REACHED BY THESE ECONOMISTS.  THEY STATE:  "THE TRIAL COURT
TO THE CONTRARY NOTWITHSTANDING, THE MARKET IN WHICH CELLOPHANE MEETS
THE 'COMPETITION' OF OTHER WRAPPERS IS NARROWER THAN THE MARKET FOR ALL
FLEXIBLE PACKAGING MATERIALS."  ID., AT 52.  AND THEY CONCLUDE THAT "
...  CELLOPHANE IS SO DIFFERENTIATED FROM OTHER FLEXIBLE WRAPPING
MATERIALS THAT ITS CROSS ELASTICITY OF DEMAND GIVES DU PONT SIGNIFICANT
AND CONTINUING MONOPOLY POWER."  ID., AT 63. 

FN3  THE RECORD PROVIDES NO FIGURES FOR WAXED PAPER PRIOR TO 1933. 

FN4  SEE STOCKING AND MUELLER, THE CELLOPHANE CASE, XLV AMER. 
ECONOMIC REV. 29, 56. 

FN5  R. 3549, GX-392.  THE RECORD CONTAINS MANY REPORTS PREPARED BY
DU PONT FROM 1928 TO 1947.  THEY VIRTUALLY IGNORE THE POSSIBILITY OF
COMPETITION FROM OTHER PACKAGING MATERIALS.  E.G., R. 3651, 3678, 3724,
3739. 

FN6  R. 4070.  IT IS INTERESTING TO NOTE THAT DU PONT HAD ALMOST 70%
OF THE MARKET WHICH THIS REPORT CONSIDERED RELEVANT. 

FN7  SEE FINDING 24; GX-1001, R. 3253; AND GX-1002, R. 3257-3260. 
THE AGREEMENT OF JUNE 9, 1923, IN WHICH THE PARTIES AGREED TO DIVIDE
THE WORLD CELLOPHANE MARKET, IS ILLEGAL PER SE UNDER TIMKEN ROLLER
BEARING CO. V. UNITED STATES, 341 U.S. 593, 596-599.  THE SUPPLEMENTARY
AGREEMENT PROVIDING FOR THE INTERCHANGE OF TECHNOLOGICAL INFORMATION
TIGHTENED THE CELLOPHANE MONOPOLY AND DENIED TO OTHERS ANY ACCESS TO
WHAT WENT INTO THE COMMON POOL - ALL IN VIOLATION OF UNITED STATES V.
NATIONAL LEAD CO., 332 U.S. 319, 328.  AS WAS SAID IN UNITED STATES V.
GRIFFITH, 334 U.S. 100, 107:  "THE ANTI-TRUST LAWS ARE AS MUCH VIOLATED
BY THE PREVENTION OF COMPETITION AS BY ITS DESTRUCTION." 

FN8  SEE FINDING 602; GX-1087, R. 3288; AND GX-1109, R. 3301. 

FN9  FINDING 633.  ON APPEAL FROM AN ADVERSE DECISION BY THE
COMMISSIONER OF CUSTOMS, DU PONTPERSUADED THE UNITED STATES CUSTOMS
COURT TO ORDER RECLASSIFICATION OF CELLOPHANE. 

FN10  THE AGREEMENT IS SUMMARIZED IN FINDING 545 AND APPEARS IN FULL
IN GX-2487, R. 3383-3408.  WE BELIEVE THAT UNDER THE PRINCIPLES SET
FORTH IN TRANSPARENT-WRAP MACHINE CORP. V. STOKES & SMITH CO., 329 U.S.
637, 646, THIS AGREEMENT VIOLATED THE SHERMAN ACT. 

FN11  GX-2811, R. 6073-6074. 

FN12  R. 3563. 

FN13  WHEN DU PONT CELLOPHANE WAS ORGANIZED IN 1923, DU PONT RECEIVED
52,000 SHARES OF ITS STOCK IN RETURN FOR $866,666.67 IN CASH, OR $16.67
PER SHARE.  F. 22; DX-735, R. 5402.  IN 1929 DU PONT HAD TO SURRENDER
STOCK HAVING A MARKET VALUE OF $12,129,600 IN ORDER TO OBTAIN THE
48,000 SHARES HELD BY FRENCH INTERESTS, A SUM EQUAL TO $252.70 PER
SHARE.  DX-735, R. 5403. 

FN14  R. 4155. 

FN15  SEE STOCKING AND MUELLER, THE CELLOPHANE CASE, XLV AMER. 
ECONOMIC REV. 29, 60-63, WHERE THE AUTHORS COMPARE THE DOMESTIC
ECONOMIC HISTORY OF RAYON WITH THAT OF CELLOPHANE.  THE FIRST AMERICAN
RAYON PRODUCER EARNED 64.2% ON ITS INVESTMENT IN 1920, THEREBY
ATTRACING DU PONT.  AFTER A LOSS IN 1921, DU PONT'S AVERAGE RETURN FOR
THE NEXT FOUR YEARS WAS ROUGHLY 32%.  AS MORE FIRMS BEGAN RAYON
PRODUCTION, DU PONT'S AND THE INDUSTRY'S RETURN ON INVESTMENT BEGAN TO
DROP.  WHEN 6 NEW FIRMS ENTERED THE INDUSTRY IN 1930, BRINGING THE
NUMBER OF PRODUCERS TO 20, AVERAGE INDUSTRY EARNINGS FOR THAT YEAR
DECLINED TO 5% AND DU PONT SUFFERED A NET LOSS.  "FROM THE BEGINNING OF
THE DEPRESSION IN 1929 THROUGH THE SUCCEEDING RECOVERY AND THE 1938
RECESSION DU PONT AVERAGED 29.6 PER CENT BEFORE TAXES ON ITS CELLOPHANE
INVESTMENT.  ON ITS RAYON INVESTMENT IT AVERAGED ONLY 6.3 PER CENT."
ID., AT 62-63.    FN16  IN 1924 TWO OF LA CELLOPHANE'S PRINCIPAL
OFFICIALS ABSCONDED WITH COMPLETE INFORMATION ON THE CELLOPHANE
PROCESS.  A BELGIAN CONCERN WAS THEN SET UP TO USE THIS PROCESS IN
MAKING CELLOPHANE, AND IT LATER ORGANIZED SYLVANIA AS AN AMERICAN
AFFILIATE.  FINDINGS 615-618. 

FN17  R. 2733-2736. 

FN18  SEE MEMORANDUM DU PONT SUBMITTED TO PROSPECTIVE ENTRANTS.  R.
3893. 

FN19  SEE RULE 52(A), FEDERAL RULES OF CIVIL PROCEDURE. 

FN20  118 F. SUPP., AT 206. 

FN21  R. 4154-4155. 

FN22  SEE, E.G., AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781,
805-806. 

FN23  SEE NOTE 31, MAJORITY OPINION. 

FN24  ADAMS, THE "RULE OF REASON":  WORKABLE COMPETITION OR WORKABLE
MONOPOLY?, 63 YALE L.J.  348, 364. 

FN25  REPORT OF ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE
ANTITRUST LAWS, P. 322.  THE MAJORITY DECISION MUST BE PECULIARLY
FRUSTRATING TO THE CIGARETTE INDUSTRY, WHOSE ECONOMIC BEHAVIOR HAS BEEN
RESTRAINED MORE THAN ONCE BY THIS COURT IN THE INTEREST OF
COMPETITION.  SEE AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781;
UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106. 

FN26  "IF CELLOPHANE IS THE 'MARKET' THAT DU PONT IS FOUND TO
DOMINATE, IT MAY BE ASSUMED IT DOES HAVE MONOPOLY POWER OVER THAT
'MARKET.'  MONOPOLY POWER IS THE POWER TO CONTROL PRICES OR EXCLUDE
COMPETITION.  IT SEEMS APPARENT THAT DU PONT'S POWER TO SET THE PRICE
OF CELLOPHANE HAS ONLY BEEN LIMITED BY THE COMPETITION AFFORDED BY
OTHER FLEXIBLE PACKAGING MATERIALS.  MOREOVER, IT MAY BE PRACTICALLY
IMPOSSIBLE FOR ANYONE TO COMMENCE MANUFACTURING CELLOPHANE WITHOUT FULL
ACCESS TO DU PONT'S TECHNIQUE."  MAJORITY OPINION, ANTE, PP. 391-392. 

FN27  SEE NOTES 7 AND 10, OUR DISSENT. 

FN28  SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416,
431. 
..END :






SEARS, ROEBUCK & CO. V. MACKEY 351 U.S. 427 


NO. 34.  ARGUED FEBRUARY 28, 1956.  - DECIDED JUNE 11, 1956.  - 218 F.2D
295, AFFIRMED. 


IN A MULTIPLE CLAIMS ACTION, THE FEDERAL DISTRICT COURT EXPRESSLY
DIRECTED THAT JUDGMENT BE ENTERED FOR THE DEFENDANT ON TWO, BUT LESS
THAN ALL, OF THE CLAIMS PRESENTED.  THE COURT ALSO EXPRESSLY DETERMINED
THAT THERE WAS NO JUST REASON FOR DELAY IN MAKING THE ENTRY.  ON APPEAL
FROM THAT JUDGMENT, THE COURT OF APPEALS UPHELD ITS JURISDICTION AND
DENIED A MOTION TO DISMISS, RELYING UPON 28 U.S.C. SEC. 1291 AND RULE
54(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE, AS AMENDED IN 1946. 
HELD:  THE APPELLATE JURISDICTION OF THE COURT OF APPEALS IS SUSTAINED,
AND ITS JUDGMENT DENYING THE MOTION TO DISMISS THE APPEAL FOR LACK OF
APPELLATE JURISDICTION IS AFFIRMED.  PP. 428-438. 

(A)  RULE 54(B), AS AMENDED, DOES NOT RELAX THE FINALITY REQUIRED OF
EACH DECISION, AS AN INDIVIDUAL CLAIM, TO RENDER IT APPEALABLE, BUT
DOES PROVIDE A PRACTICAL MEANS OF PERMITTING AN APPEAL TO BE TAKEN FROM
ONE OR MORE FINAL DECISIONS ON INDIVIDUAL CLAIMS, IN MULTIPLE CLAIMS
ACTIONS, WITHOUT WAITING FOR FINAL DECISIONS TO BE RENDERED ON ALL THE
CLAIMS IN THE CASE.  PP. 434-435. 

(B)  THE APPLICATION OF THE AMENDED RULE IS LIMITED EXPRESSLY TO
MULTIPLE CLAIMS ACTIONS IN WHICH "ONE OR MORE BUT LESS THAN ALL" OF THE
MULTIPLE CLAIMS HAVE BEEN FINALLY DECIDED AND ARE FOUND OTHERWISE TO BE
READY FOR APPEAL.  P. 435. 

(C)  THE AMENDED RULE REQUIRES THAT FOR "ONE OR MORE BUT LESS THAN
ALL" MULTIPLE CLAIMS TO BECOME APPEALABLE, THE DISTRICT COURT MUST MAKE
BOTH "AN EXPRESS DETERMINATION THAT THERE IS NO JUST REASON FOR DELAY"
AND "AN EXPRESS DIRECTION FOR THE ENTRY OF JUDGMENT."  PP. 435-436. 

(D)  IN THIS CASE, EACH OF THE CLAIMS DISMISSED WAS A "CLAIM FOR
RELIEF" WITHIN THE MEANING OF RULE 54(B), AND THE DISMISSAL OF EACH
CONSTITUTED A "FINAL DECISION" ON THE INDIVIDUAL CLAIM.  P. 436. 

(E)  THE CLAIMS ADJUDGED BY THE DISTRICT COURT COULD PROPERLY BE
DECIDED INDEPENDENTLY OF THE CLAIMS WHICH THE COURT DID NOT ADJUDGE. 
P. 436. 

(F)  AMENDED RULE 54(B) DOES NOT CONSTITUTE AN UNAUTHORIZED EXTENSION
OF 28 U.S.C. SEC. 1291, SINCE THE DISTRICT COURT CANNOT, IN THE
EXERCISE OF ITS DISCRETION, TREAT AS "FINAL" THAT WHICH IS NOT "FINAL"
WITHIN THE MEANING OF SEC. 1291.  PP. 436-437. 

(G)  IN THE EXERCISE OF ITS DISCRETION UNDER AMENDED RULE 54(B), THE
DISTRICT COURT MAY RELEASE FOR APPEAL FINAL DECISIONS UPON ONE OR MORE,
BUT LESS THAN ALL, CLAIMS IN MULTIPLE CLAIMS ACTIONS; AND ANY ABUSE OF
THAT DISCRETION IS REVIEWABLE BY THE COURT OF APPEALS.  P. 437. 

(H)  RULE 54(B), AS AMENDED, DOES NOT SUPERSEDE ANY STATUTE
CONTROLLING APPELLATE JURISDICTION; AND IT SCRUPULOUSLY RECOGNIZES THE
STATUTORY REQUIREMENT OF A "FINAL DECISION" UNDER SEC. 1291 AS A BASIC
REQUIREMENT FOR AN APPEAL TO THE COURT OF APPEALS.  P. 438. 

(I)  RULE 54(B), AS AMENDED, IS VALID IN BOTH ITS "AFFIRMATIVE" AND
"NEGATIVE" ASPECTS.  THE RULE IS NOT RENDERED INVALID BECAUSE, THROUGH
ITS "AFFIRMATIVE" OPERATION, A FINAL DECISION MAY BE RELEASED FOR
APPEAL TO THE COURT OF APPEALS AT A TIME WHEN, UNDER PRIOR LAW, IT
WOULD NOT HAVE BEEN APPEALABLE.  P. 438. 

SEARS, ROEBUCK & CO. V. MACKEY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS ACTION, PRESENTING MULTIPLE CLAIMS FOR RELIEF, WAS BROUGHT BY
MACKEY AND ANOTHER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN DIVISION, IN 1953.  THE COURT EXPRESSLY
DIRECTED THAT JUDGMENT BE ENTERED FOR THE DEFENDANT, SEARS, ROEBUCK &
CO., ON TWO, BUT LESS THAN ALL, OF THE CLAIMS PRESENTED.  IT ALSO
EXPRESSLY DETERMINED THAT THERE WAS NO JUST REASON FOR DELAY IN MAKING
THE ENTRY.  AFTER MACKEY'S NOTICE OF APPEAL FROM THAT JUDGMENT TO THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT, SEARS, ROEBUCK & CO. MOVED TO
DISMISS THE APPEAL FOR LACK OF APPELLATE JURISDICTION.  THE COURT OF
APPEALS UPHELD ITS JURISDICTION AND DENIED THE MOTION, RELYING UPON 28
U.S.C. SEC. 1291 AND RULE 54(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, AS AMENDED IN 1946.  218 F.2D 295.  BECAUSE OF THE
IMPORTANCE OF THE ISSUE IN DETERMINING APPELLATE JURISDICTION AND
BECAUSE OF A CONFLICT OF JUDICIAL VIEWS ON THE SUBJECT, (FN1) WE
GRANTED CERTIORARI.  348 U.S. 970.  FOR THE REASONS HEREAFTER STATED,
WE SUSTAIN THE COURT OF APPEALS AND ITS APPELLATE JURISDICTION. 

ALTHOUGH WE ARE HERE CONCERNED WITH THE PRESENT APPEALABILITY OF THE
JUDGMENT OF THE DISTRICT COURT AND NOT WITH ITS MERITS, WE MUST EXAMINE
THE CLAIMS STATED IN THE COMPLAINT SO AS TO CONSIDER ADEQUATELY THE
ISSUE OF APPEALABILITY. 

THE COMPLAINT CONTAINS SIX COUNTS.  WE DISREGARD THE FIFTH BECAUSE IT
HAS BEEN ABANDONED AND THE SIXTH BECAUSE IT DUPLICATES OTHERS.  THE
CLAIMS STATED IN COUNTS I AND II ARE MATERIAL AND HAVE BEEN DISMISSED
WITHOUT LEAVE TO AMEND. THE CLAIM CONTAINED IN COUNT III AND THAT IN
AMENDED COUNT IV ARE AT ISSUE ON THE ANSWERS FILED BY SEARS, ROEBUCK &
CO. THE APPEAL BEFORE US IS FROM A JUDGMENT STRIKING OUT COUNTS I AND
II WITHOUT DISTURBING COUNTS III AND IV, AND THE QUESTION PRESENTED IS
WHETHER SUCH A JUDGMENT IS PRESENTLY APPEALABLE WHEN THE DISTRICT
COURT, PURSUANT TO AMENDED RULE 54(B), HAS MADE "AN EXPRESS
DETERMINATION THAT THERE IS NO JUST REASON FOR DELAY" AND HAS GIVEN "AN
EXPRESS DIRECTION FOR THE ENTRY OF JUDGMENT." 

IN COUNT I, MACKEY, A CITIZEN OF ILLINOIS, AND TIME SAVER TOOLS,
INC., AN ILLINOIS CORPORATION OWNED BY MACKEY, ARE THE ORIGINAL
PLAINTIFFS AND THE RESPONDENTS HERE.  SEARS, ROEBUCK & CO., A NEW YORK
CORPORATION DOING BUSINESS IN ILLINOIS, IS THE ORIGINAL DEFENDANT AND
THE PETITIONER HERE.  MACKEY CHARGES SEARS WITH CONDUCT VIOLATING THE
SHERMAN ANTITRUST ACT IN A MANNER PREJUDICIAL TO THREE OF MACKEY'S
COMMERCIAL VENTURES CAUSING HIM $190,000 DAMAGES, FOR WHICH HE SEEKS
$570,000 AS TREBLE DAMAGES.  HIS FIRST CHARGE IS UNLAWFUL DESTRUCTION
BY SEARS, SINCE 1949, OF THE MARKET FOR NURSERY LAMPS MANUFACTURED BY
GENERAL METALCRAFT COMPANY, A  ORPORATION WHOLLY OWNED BY MACKEY. 
MACKEY CLAIMS THAT THIS CAUSED HIM A LOSS OF $150,000.  HIS SECOND
CHARGE IS UNLAWFUL INTERFERENCE BY SEARS, IN 1952, WITH MACKEY'S
CONTRACT TO SELL, ON COMMISSION, CERTAIN TOOLS AND OTHER PRODUCTS OF
THE VASCOLOY-RAMET CORPORATION, CAUSING MACKEY TO LOSE $15,000.  HIS
THIRD CHARGE IS UNLAWFUL DESTRUCTION BY SEARS, IN 1952, OF THE MARKET
FOR A NEW TYPE OF CARBIDE-TIPPED LATHE BIT AND FOR OTHER ARTICLES
MANUFACTURED BY TIME SAVER TOOLS, INC., RESULTING IN A LOSS TO MACKEY
OF $25,000.  MACKEY COMBINES SUCH CHARGES WITH ALLEGATIONS THAT SEARS
HAS USED ITS GREAT SIZE TO MONOPOLIZE COMMERCE AND RESTRAIN COMPETITION
IN THESE FIELDS.  HE ASKS FOR DAMAGES AND EQUITABLE RELIEF. 

IN COUNT II, MACKEY CLAIMS FEDERAL JURISDICTION BY VIRTUE OF
DIVERSITY OF CITIZENSHIP.  HE INCORPORATES THE ALLEGATIONS OF COUNT I
AS TO THE METALCRAFT TRANSACTIONS AND ASKS FOR $250,000 DAMAGES FOR
SEARS' WILFUL DESTRUCTION OF THE BUSINESS OF METALCRAFT, PLUS $50,000
FOR MACKEY'S LOSS ON OBLIGATIONS GUARANTEED BY HIM. 

IN COUNT III, MACKEY SEEKS $75,000 IN A COMMON-LAW PROCEEDING AGAINST
SEARS FOR UNLAWFULLY INDUCING A BREACH OF HIS VASCOLOY COMMISSION
CONTRACT. 

IN COUNT IV, TIME SAVER SEEKS $200,000 IN COMMON-LAW PROCEEDING
AGAINST SEARS FOR UNLAWFULLY DESTROYING TIME SAVER'S BUSINESS BY UNFAIR
COMPETITION AND PATENT INFRINGEMENT. 

THE JURISDICTION OF THE COURT OF APPEALS TO ENTERTAIN MACKEY'S APPEAL
FROM THE DISTRICT COURT'S JUDGMENT DEPENDS UPON 28 U.S.C. SEC. 1291,
WHICH PROVIDES THAT "THE COURTS OF APPEALS SHALL HAVE JURISDICTION OF
APPEALS FROM ALL FINAL DECISIONS OF THE DISTRICT COURTS OF THE UNITED
STATES  ... ." 

IF MACKEY'S COMPLAINT HAD CONTAINED ONLY COUNT I, THERE IS NO DOUBT
THAT A JUDGMENT STRIKING OUT THAT COUNT AND THUS DISMISSING, IN ITS
ENTIRETY, THE CLAIM THERE STATED WOULD BE BOTH A FINAL AND AN
APPEALABLE DECISION WITHIN THE MEANING OF SEC. 1291.  SIMILARLY, IF HIS
COMPLAINT HAD CONTAINED COUNTS I, II, III AND IV, THERE IS NO DOUBT
THAT A JUDGMENT STRIKING OUT ALL FOUR WOULD BE A FINAL AND APPEALABLE
DECISION UNDER SEC. 1291.  THE CONTROVERSY BEFORE US ARISES SOLELY
BECAUSE, IN THIS MULTIPLE CLAIMS ACTION, THE DISTRICT COURT HAS
DISMISSED THE CLAIMS STATED IN COUNTS I AND II, BUT HAS LEFT
UNADJUDICATED THOSE STATED IN COUNTS III AND IV.  (FN2) 

BEFORE THE ADOPTION OF THE FEDERAL RULES OF CIVIL PROCEDURE IN 1939,
SUCH A SITUATION WAS GENERALLY REGARDED AS LEAVING THE APPELLATE COURT
WITHOUT JURISDICTION OF AN ATTEMPTED APPEAL.  IT WAS THOUGHT THAT,
ALTHOUGH THE JUDGMENT WAS A FINAL DECISION ON THE RESPECTIVE CLAIMS IN
COUNTS I AND II, IT OBVIOUSLY WAS NOT A FINAL DECISION OF THE WHOLE
CASE, AND THERE WAS NO AUTHORITY FOR TREATING ANYTHING LESS THAN THE
WHOLE CASE AS A JUDICIAL UNIT FOR PURPOSES OF APPEAL.  (FN3)  THIS
CONSTRUCTION OF THE JUDICIAL UNIT WAS DEVELOPED FROM THE COMMON LAW
WHICH HAD DEALT WITH LITIGATION GENERALLY LESS COMPLICATED THAN MUCH OF
THAT OF TODAY.  (FN4) 

WITH THE FEDERAL RULES OF CIVIL PROCEDURE, THERE CAME AN INCREASED
OPPORTUNITY FOR THE LIBERAL JOINDER OF CLAIMS IN MULTIPLE CLAIMS
ACTIONS.  THIS, IN TURN, DEMONSTRATED A NEED FOR RELAXING THE
RESTRICTIONS UPON WHAT SHOULD BE TREATED AS A JUDICIAL UNIT FOR
PURPOSES OF APPELLATE JURISDICTION.  SOUND JUDICIAL ADMINISTRATION DID
NOT REQUIRE RELAXATION OF THE STANDARD OF FINALITY IN THE DISPOSITION
OF THE INDIVIDUAL ADJUDICATED CLAIMS FOR THE PURPOSE OF THEIR
APPEALABILITY.  IT DID, HOWEVER, DEMONSTRATE THAT, AT LEAST IN MULTIPLE
CLAIMS ACTIONS, SOME FINAL DECISIONS, ON LESS THAN ALL OF THE CLAIMS,
SHOULD BE APPEALABLE WITHOUT WAITING FOR A FINAL DECISION ON ALL OF THE
CLAIMS.  LARGELY TO MEET THIS NEED, IN 1939, RULE 54(B) WAS PROMULGATED
IN ITS ORIGINAL FORM THROUGH JOINT ACTION OF CONGRESS AND THIS COURT. 
(FN5)  IT READ AS FOLLOWS: 

"(B) JUDGMENT AT VARIOUS STATES.  WHEN MORE THAN ONE CLAIM FOR RELIEF
IS PRESENTED IN AN ACTION, THE COURT AT ANY STAGE, UPON A DETERMINATION
OF THE ISSUES MATERIAL TO A PARTICULAR CLAIM AND ALL COUNTERCLAIMS
ARISING OUT OF THE TRANSACTION OR OCCURRENCE WHICH IS THE SUBJECT
MATTER OF THE CLAIM, MAY ENTER A JUDGMENT DISPOSING OF SUCH CLAIM.  THE
JUDGMENT SHALL TERMINATE THE ACTION WITH RESPECT TO THE CLAIM SO
DISPOSED OF AND THE ACTION SHALL PROCEED AS TO THE REMAINING CLAIMS. 
IN CASE A SEPARATE JUDGMENT IS SO ENTERED, THE COURT BY ORDER MAY STAY
ITS ENFORCEMENT UNTIL THE ENTERING OF A SUBSEQUENT JUDGMENT OR
JUDGMENTS AND MAY PRESCRIBE SUCH CONDITIONS AS ARE NECESSARY TO SECURE
THE BENEFIT THEREOF TO THE PARTY IN WHOSE FAVOR THE JUDGMENT IS
ENTERED." 

IT GAVE LIMITED RELIEF.  THE COURTS INTERPRETED IT AS NOT RELAXING
THE REQUIREMENT OF A "FINAL DECISION" ON EACH INDIVIDUAL CLAIM AS THE
BASIS FOR AN APPEAL, BUT AS AUTHORIZING A LIMITED RELAXATION OF THE
FORMER GENERAL PRACTICE THAT, IN MULTIPLE CLAIMS ACTIONS, ALL THE
CLAIMS HAD TO BE FINALLY DECIDED BEFORE AN APPEAL COULD BE ENTERTAINED
FROM A FINAL DECISION UPON ANY OF THEM.  (FN6)  THUS, ORIGINAL RULE
54(B) MODIFIED THE SINGLE JUDICIAL UNIT THEORY BUT LEFT UNIMPAIRED THE
STATUTORY CONCEPT OF FINALITY PRESCRIBED BY SEC. 1291.  HOWEVER, IT WAS
SOON FOUND TO BE INHERENTLY DIFFICULT TO DETERMINE BY ANY AUTOMATIC
STANDARD OF UNITY WHICH OF SEVERAL MULTIPLE CLAIMS WERE SUFFICIENTLY
SEPARABLE FROM OTHERS TO QUALIFY FOR THIS RELAXATION OF THE UNITARY
PRINCIPLE IN FAVOR OF THEIR APPEALABILITY.  THE RESULT WAS THAT THE
JURISDICTIONAL TIME FOR TAKING AN APPEAL FROM A FINAL DECISION ON LESS
THAN ALL OF THE CLAIMS IN A MULTIPLE CLAIMS ACTION IN SOME INSTANCES
EXPIRED EARLIER THAN WAS FORESEEN BY THE LOSING PARTY.  IT THUS BECAME
PRUDENT TO TAKE IMMEDIATE APPEALS IN ALL CASES OF DOUBTFUL
APPEALABILITY AND THE VOLUME OF APPELLATE PROCEEDINGS WAS UNDESIRABLY
INCREASED. 

LARGELY TO OVERCOME THIS DIFFICULTY, RULE 54(B) WAS AMENDED, IN 1946,
TO TAKE EFFECT IN 1948.  (FN7)  SINCE THEN IT HAS READ AS FOLLOWS: 

"(B) JUDGMENT UPON MULTIPLE CLAIMS.  WHEN MORE THAN ONE CLAIM FOR
RELIEF IS PRESENTED IN AN ACTION, WHETHER AS A CLAIM, COUNTERCLAIM,
CROSS-CLAIM, OR THIRD-PARTY CLAIM, THE COURT MAY DIRECT THE ENTRY OF A
FINAL JUDGMENT UPON ONE OR MORE BUT LESS THAN ALL OF THE CLAIMS ONLY
UPON AN EXPRESS DETERMINATION THAT THERE IS NO JUST REASON FOR DELAY
AND UPON AN EXPRESS DIRECTION FOR THE ENTRY OF JUDGMENT.  IN THE
ABSENCE OF SUCH DETERMINATION AND DIRECTION, ANY ORDER OR OTHER FORM OF
DECISION, HOWEVER DESIGNATED, WHICH ADJUDICATES LESS THAN ALL THE
CLAIMS SHALL NOT TERMINATE THE ACTION AS TO ANY OF THE CLAIMS, AND THE
ORDER OR OTHER FORM OF DECISION IS SUBJECT TO REVISION AT ANY TIME
BEFORE THE ENTRY OF JUDGMENT ADJUDICATING ALL THE CLAIMS." 

IN THIS FORM, IT DOES NOT RELAX THE FINALITY REQUIRED OF EACH
DECISION, AS AN INDIVIDUAL CLAIM, TO RENDER IT APPEALABLE, BUT IT DOES
PROVIDE A PRACTICAL MEANS OF PERMITTING AN APPEAL TO BE TAKEN FROM ONE
OR MORE FINAL DECISIONS ON INDIVIDUAL CLAIMS, IN MULTIPLE CLAIMS
ACTIONS, WITHOUT WAITING FOR FINAL DECISIONS TO BE RENDERED ON ALL THE
CLAIMS IN THE CASE.  THE AMENDED RULE DOES NOT APPLY TO A SINGLE CLAIM
ACTION NOR TO A MULTIPLE CLAIMS ACTION IN WHICH ALL OF THE CLAIMS HAVE
BEEN FINALLY DECIDED.  IT IS LIMITED EXPRESSLY TO MULTIPLE CLAIMS
ACTIONS IN WHICH "ONE OR MORE BUT LESS THAN ALL" OF THE MULTIPLE CLAIMS
HAVE BEEN FINALLY DECIDED AND ARE FOUND OTHERWISE TO BE READY FOR
APPEAL. 

TO MEET THE DEMONSTRATED NEED FOR FLEXIBILITY, THE DISTRICT COURT IS
USED AS A "DISPATCHER."  IT IS PERMITTED TO DETERMINE, IN THE FIRST
INSTANCE, THE APPROPRIATE TIME WHEN EACH "FINAL DECISION" UPON "ONE OR
MORE BUT LESS THAN ALL" OF THE CLAIMS IN A MULTIPLE CLAIMS ACTION IS
READY FOR APPEAL.  THIS ARRANGEMENT ALREADY HAS LENT WELCOME CERTAINTY
TO THE APPELLATE PROCEDURE.  ITS "NEGATIVE EFFECT" HAS MET WITH UNIFORM
APPROVAL.  THE EFFECT SO REFERRED TO IS THE RULE'S SPECIFIC REQUIREMENT
THAT FOR "ONE OR MORE BUT LESS THAN ALL" MULTIPLE CLAIMS TO BECOME
APPEALABLE, THE DISTRICT COURT MUST MAKE BOTH "AN EXPRESS DETERMINATION
THAT THERE IS NO JUST REASON FOR DELAY" AND "AN EXPRESS DIRECTION FOR
THE ENTRY OF JUDGMENT."  A PARTY ADVERSELY AFFECTED BY A FINAL DECISION
THUS KNOWS THAT HIS TIME FOR APPEAL WILL NOT RUN AGAINST HIM UNTIL THIS
CERTIFICATION HAS BEEN MADE.  (FN8) 

IN THE INSTANT CASE, THE DISTRICT COURT MADE THIS CERTIFICATION, BUT
SEARS, ROEBUCK & CO. NEVERTHELESS MOVED TO DISMISS THE APPEAL FOR LACK
OF APPELLATE JURISDICTION UNDER SEC. 1291.  THE GROUNDS FOR SUCH A
MOTION ORDINARILY MIGHT BE (1) THAT THE JUDGMENT OF THE DISTRICT COURT
WAS NOT A DECISION UPON A "CLAIM FOR RELIEF," (2) THAT THE DECISION WAS
NOT A "FINAL DECISION" IN THE SENSE OF AN ULTIMATE DISPOSITION OF AN
INDIVIDUAL CLAIM ENTERED IN THE COURSE OF A MULTIPLE CLAIMS ACTION, OR
(3) THAT THE DISTRICT COURT ABUSED ITS DISCRETION IN CERTIFYING THE
ORDER. 

IN THE CASE BEFORE US, THERE IS NO DOUBT THAT EACH OF THE CLAIMS
DISMISSED IS A "CLAIM FOR RELIEF" WITHIN THE MEANING OF RULE 54(B), OR
THAT THEIR DISMISSAL CONSTITUTES A "FINAL DECISION" ON INDIVIDUAL
CLAIMS.  ALSO, IT CANNOT WELL BE ARGUED THAT THE CLAIMS STATED IN
COUNTS I AND II ARE SO INHERENTLY INSEPARABLE FROM, OR CLOSELY RELATED
TO, THOSE STATED IN COUNTS III AND IV THAT THE DISTRICT COURT HAS
ABUSED ITS DISCRETION IN CERTIFYING THAT THERE EXISTS NO JUST REASON
FOR DELAY.  THEY CERTAINLY CAN BE DECIDED INDEPENDENTLY OF EACH OTHER. 

PETITIONER CONTENDS THAT AMENDED RULE 54(B) ATTEMPTS TO MAKE AN
UNAUTHORIZED EXTENSION OF SEC. 1291.  WE DISAGREE.  IT COULD READILY BE
ARGUED HERE THAT THE CLAIMS STATED IN COUNTS I AND II ARE SUFFICIENTLY
INDEPENDENT OF THOSE STATED IN COUNTS III AND IV TO SATISFY THE
REQUIREMENTS OF RULE 54(B) EVEN IN ITS ORIGINAL FORM.  IF THAT WERE SO,
THE DECISION DISMISSING THEM WOULD ALSO BE APPEALABLE UNDER THE AMENDED
RULE.  IT IS NOWHERE CONTENDED TODAY THAT A DECISION THAT WOULD HAVE
BEEN APPEALABLE UNDER THE ORIGINAL RULE IS NOT ALSO APPEALABLE UNDER
THE AMENDED RULE, PROVIDED THE DISTRICT COURT MAKES THE REQUIRED
CERTIFICATION. 

WHILE IT THUS MIGHT BE POSSIBLE TO HOLD THAT IN THIS CASE THE COURT
OF APPEALS HAD JURISDICTION UNDER ORIGINAL RULE 54(B), THERE AT LEAST
WOULD BE ROOM FOR ARGUMENT ON THE ISSUE OF WHETHER THE DECIDED CLAIMS
WERE SEPARATE AND INDEPENDENT FROM THOSE STILL PENDING IN THE DISTRICT
COURT.  (FN9) THUS THE INSTANT CASE AFFORDS AN EXCELLENT ILLUSTRATION
OF THE VALUE OF THE AMENDED RULE WHICH WAS DESIGNED TO OVERCOME THAT
DIFFICULTY.  ASSUMING THAT THE REQUIREMENTS OF THE ORIGINAL RULE ARE
NOT MET IN THIS CASE, WE NEVERTHELESS ARE ENABLED TO RECOGNIZE THE
PRESENT APPELLATE JURISDICTION OF THE COURT OF APPEALS UNDER THE
AMENDED RULE.  THE DISTRICT COURT CANNOT, IN THE EXERCISE OF ITS
DISCRETION, TREAT AS "FINAL" THAT WHICH IS NOT "FINAL" WITHIN THE
MEANING OF SEC. 1291.  BUT THE DISTRICT COURT MAY, BY THE EXERCISE OF
ITS DISCRETION IN THE INTEREST OF SOUND JUDICIAL ADMINISTRATION,
RELEASE FOR APPEAL FINAL DECISIONS UPON ONE OR MORE, BUT LESS THAN ALL,
CLAIMS IN MULTIPLE CLAIMS ACTIONS.  THE TIMING OF SUCH A RELEASE IS,
WITH GOOD REASON, VESTED BY THE RULE PRIMARILY IN THE DISCRETION OF THE
DISTRICT COURT AS THE ONE MOST LIKELY TO BE FAMILIAR WITH THE CASE AND
WITH ANY JUSTIFIABLE REASONS FOR DELAY.  WITH EQUALLY GOOD REASON, ANY
ABUSE OF THAT DISCRETION REMAINS REVIEWABLE BY THE COURT OF APPEALS. 

RULE 54(B), IN ITS ORIGINAL FORM, THUS MAY BE SAID TO HAVE MODIFIED
THE SINGLE JUDICIAL UNIT PRACTICE WHICH HAD BEEN DEVELOPED BY COURT
DECISIONS.  THE VALIDITY OF THAT RULE IS NO LONGER QUESTIONED.  IN
FACT, IT WAS APPLIED BY THIS COURT IN REEVES V. BEARDALL, 316 U.S. 283,
WITHOUT ITS VALIDITY BEING QUESTIONED. 

RULE 54(B), IN ITS AMENDED FORM, IS A COMPARABLE EXERCISE OF THE
RULEMAKING AUTHORITY OF THIS COURT.  IT DOES NOT SUPERSEDE ANY STATUTE
CONTROLLING APPELLATE JURISDICTION.  IT SCRUPULOUSLY RECOGNIZES THE
STATUTORY REQUIREMENT OF A "FINAL DECISION" UNDER SEC. 1291 AS A BASIC
REQUIREMENT FOR AN APPEAL TO THE COURT OF APPEALS.  IT MERELY
ADMINISTERS THAT REQUIREMENT IN A PRACTICAL MANNER IN MULTIPLE CLAIMS
ACTIONS AND DOES SO BY RULE INSTEAD OF BY JUDICIAL DECISION.  BY ITS
NEGATIVE EFFECT, IT OPERATES TO RESTRICT IN A VALID MANNER THE NUMBER
OF APPEALS IN MULTIPLE CLAIMS ACTIONS. 

WE REACH A LIKE CONCLUSION AS TO THE VALIDITY OF THE AMENDED RULE
WHERE THE DISTRICT COURT ACTS AFFIRMATIVELY AND THUS ASSISTS IN
PROPERLY TIMING THE RELEASE OF FINAL DECISIONS IN MULTIPLE CLAIMS
ACTIONS.  THE AMENDED RULE ADAPTS THE SINGLE JUDICIAL UNIT THEORY SO
THAT IT BETTER MEETS THE CURRENT NEEDS OF JUDICIAL ADMINISTRATION. 
JUST AS RULE 54(B), IN ITS ORIGINAL FORM, RESULTED IN THE RELASE OF
SOME DECISIONS ON CLAIMS IN MULTIPLE CLAIMS ACTIONS BEFORE THEY
OTHERWISE WOULD HAVE BEEN RELEASED, (FN10) SO AMENDED RULE 54(B) NOW
MAKES POSSIBLE THE RELEASE OF MORE OF SUCH DECISIONS SUBJECT TO
JUDICIAL SUPERVISION.  THE AMENDED RULE PRESERVES THE HISTORIC FEDERAL
POLICY AGAINST PIECEMEAL APPEALS IN MANY CASES MORE EFFECTIVELY THAN
DID THE ORIGINAL RULE.  (FN11) 

ACCORDINGLY, THE APPELLATE JURISDICTION OF THE COURT OF APPEALS IS
SUSTAINED, (FN12) AND ITS JUDGMENT DENYING THE MOTION TO DISMISS THE
APPEAL FOR LACK OF APPELLATE JURISDICTION IS AFFIRMED. 

FN1  FOR DECISIONS DIRECTLY OR IMPLIEDLY SUSTAINING THE VALIDITY OF
AMENDED RULE 54(B), AS APPLIED IN THE INSTANT CASE, SEE RIESER V.
BALTIMORE & O.R. CO., 224 F.2D 198 (C.A.2D CIR.), AND CASES CITED AT
203, N. 7; UNITED ARTISTS CORP. V. MASTERPIECE PRODUCTIONS, INC., 221
F.2D 213 (C.A.2D CIR.); CLARKSVILLE V. UNITED STATES, 198 F.2D 238
(C.A. 4TH CIR.); BOSTON MEDICAL SUPPLY CO. V. LEA & FEBIGER, 195 F.2D
853 (C.A. 1ST CIR.); BENDIX AVIATION CORP. V. GLASS, 195 F.2D 267 (C.A.
3D CIR.); LOPINSKY V. HERTZ DRIVE-UR-SELF SYSTEMS, INC., 194 F.2D 422
(C.A.2D CIR.), CONCR.  OP. OF JUDGE CLARK, AT 424-430; PABELLON V.
GRACE LINES, INC., 191 F.2D 169 (C.A.2D CIR.).  SEE 6 MOORE'S FEDERAL
PRACTICE (2D ED. 1953) 220-230, AND NOTE, 62 YALE L.J. 263. 

CONTRA:  SEE RIESER V. BALTIMORE & O.R. CO., SUPRA, CONCR.  OP. OF
JUDGE FRANK, AT 205-208; BENDIX AVIATION CORP. V. GLASS, SUPRA, CONCR. 
OP. OF JUDGE HASTIE, AT 277-282; PABELLON V. GRACE LINE, INC., SUPRA,
CONCR.  OP. OF JUDGE FRANK, AT 176-181; FLEGENHEIMER V. GENERAL MILLS,
INC., 191 F.2D 237 (C.A.2D CIR.). SEE ALSO, GOLD SEAL CO. V. WEEKS, 93
U.S. APP. D.C. 249, 209 F.2D 802. 

FN2  SEARS ALSO CONTENDS THAT THE COURT OF APPEALS MISCONSTRUED
AMENDED RULE 54(B).  SEE FLEGENHEIMER V. GENERAL MILLS, INC., SUPRA.
THE MEANING OF THAT RULE IS CONSIDERED HEREAFTER. 

FN3  AT COMMON LAW, A WRIT OF ERROR DID NOT LIE TO REVIEW A JUDGMENT
THAT FAILED TO ADJUDICATE EVERY CAUSE OF ACTION ASSERTED IN THE
CONTROVERSY.  SEE HOLCOMBE V. MCKUSICK, 20 HOW.  552; UNITED STATES V.
GIRAULT, 11 HOW.  22; METCALFE'S CASE, 11 CO. REP. 38A, 77 ENG.  REP.
1193.  THE RULE GENERALLY FOLLOWED IN THE FEDERAL COURTS WAS THAT, IN A
CASE INVOLVING A SINGLE PLAINTIFF AND A SINGLE DEFENDANT, A JUDGMENT
WAS NOT APPEALABLE IF IT DISPOSED OF SOME, BUT LESS THAN ALL, OF THE
CLAIMS PRESENTED.  SEE COLLINS V. MILLER, 252 U.S. 364; SHEPPY V.
STEVENS, 200 F. 946 (C.A.2D CIR.).  IN CASES INVOLVING MULTIPLE PARTIES
WHERE THE ALLEDGED LIABILITY WAS JOINT, A JUDGMENT WAS NOT APPEALABLE
UNLESS IT TERMINATED THE ACTION AS TO ALL THE DEFENDANTS.  SEE HOHORST
V. HAMBURG-AMERICAN PACKET CO., 148 U.S. 262.  BUT IF, IN A MULTIPLE
PARTY CASE, A JUDGMENT FINALLY DISPOSED OF A CLAIM THAT WAS RECOGNIZED
TO BE SEPARATE AND DISTINCT FROM THE OTHERS, THAT JUDGMENT UNDER SOME
CIRCUMSTANCES, WAS APPEALABLE.  SEE REPUBLIC OF CHINA V. AMERICAN
EXPRESS CO., 190 F.2D 334 (C.A.2D CIR.). 

FN4  THE APPELLATE JURISDICTION OF THE UNITED STATES COURTS OF
APPEALS, WITH EXCEPTIONS NOT DIRECTLY PERTINENT HERE, IS STILL LARGELY
RESTRICTED TO THE REVIEW OF CASES APPEALED UNDER 28 U.S.C. SEC. 1291. 
BUT SEE FORGAY V. CONRAD, 6 HOW.  201; COHEN V. BENEFICIAL INDUSTRIAL
LOAN CORP., 337 U.S. 541; 28 U.S.C. SECS. 1292, 1651. 

FN5  THE SUPREME COURT'S AUTHORITY TO PROMULGATE THE FEDERAL RULES OF
CIVIL PROCEDURE IS DERIVED FROM THE ENABLING ACT, NOW APPEARING AS 28
U.S.C. SEC. 2072.  IT AUTHORIZES THIS COURT TO PROMULGATE RULES
GOVERNING "THE FORMS OF PROCESS, WRITS, PLEADINGS, AND MOTIONS, AND THE
PRACTICE AND PROCEDURE OF THE DISTRICT COURTS OF THE UNITED STATES  ...
IN CIVIL ACTIONS."  IT PROVIDES THAT SUCH RULES "SHALL NOT ABRIDGE,
ENLARGE OR MODIFY ANY SUBSTANTIVE RIGHT  ...  ."  AND, BY REASON OF
ARTICLE I, SEC. 8, OF THE CONSTITUTION, IT HAS BEEN HELD REPEATEDLY
THAT ONLY CONGRESS MAY DEFINE THE JURISDICTION OF THE LOWER FEDERAL
COURTS.  SEE SIBBACH V. WILSON & CO., 312 U.S. 1; BALTIMORE
CONTRACTORS, INC. V. BODINGER, 348 U.S. 176; AND FED.  RULES CIV.
PROC., 82.  "SUCH RULES SHALL NOT TAKE EFFECT UNTIL THEY HAVE BEEN
REPORTED TO CONGRESS BY THE CHIEF JUSTICE AT OR AFTER THE BEGINNING OF
A REGULAR SESSION THEREOF BUT NOT LATER THAN THE FIRST DAY OF MAY, AND
UNTIL THE EXPIRATION OF NINETY DAYS AFTER THEY HAVE BEEN THUS
REPORTED."  28 U.S.C. SEC. 2072. 

FN6  SEE PABELLON V. GRACE LINE, INC., SUPRA, AT 174. 

FN7  "  ...  SITUATIONS AROSE WHERE DISTRICT COURTS MADE A PIECEMEAL
DISPOSITION OF AN ACTION AND ENTERED WHAT THE PARTIES THOUGHT AMOUNTED
TO A JUDGMENT, ALTHOUGH A TRIAL REMAINED TO BE HAD ON OTHER CLAIMS
SIMILAR OR IDENTICAL WITH THOSE DISPOSED OF.  IN THE INTERIM THE
PARTIES DID NOT KNOW THEIR ULTIMATE RIGHTS, AND ACCORDINGLY TOOK AN
APPEAL, THUS PUTTING THE FINALITY OF THE PARTIAL JUDGMENT IN
QUESTION."  REPORT OF ADVISORY COMMITTEE ON PROPOSED AMENDMENTS TO
RULES OF CIVIL PROCEDURE 70-71 (JUNE 1946). 

FN8  FOR FAVORABLE COMMENT ON THIS ASPECT OF THE RULE, SEE DICKINSON
V. PETROLEUM CORP., 338 U.S. 507, 511-512. 

FN9  IN THE INSTANT CASE, THE CLAIM DISMISSED BY STRIKING OUT COUNT I
IS BASED ON THE SHERMAN ACT, WHILE COUNTS III AND IV DO NOT RELY ON, OR
EVEN REFER TO, THAT ACT.  THEY ARE LARGELY PREDICATED ON COMMON-LAW
RIGHTS.  THE BASIS OF LIABILITY IN COUNT I IS INDEPENDENT OF THAT ON
WHICH THE CLAIMS IN COUNTS III AND IV DEPEND.  BUT THE CLAIM IN COUNT I
DOES REST IN PART ON SOME OF THE FACTS THAT ARE INVOLVED IN COUNTS III
AND IV.  THE CLAIM STATED IN COUNT II IS CLEARLY INDEPENDENT OF THOSE
IN COUNTS III AND IV. 

FN10  SEE COLLINS V. METRO-GOLDWYN PICTURES CORP., 106 F.2D 83
(C.A.2D CIR.), CITED IN REEVES V. BEARDALL, 316 U.S. 283. 

FN11  SEE COBBLEDICK V. UNITED STATES, 309 U.S. 323. 

FN12  MACKEY ALSO ARGUES THAT THE COURT OF APPEALS HAS JURISDICTION
UNDER 28 U.S.C. SEC.  1291(1).   IN VIEW OF OUR DISPOSITION OF THIS
CASE, WE DO NOT REACH THAT CONTENTION. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, CONCURRING IN
NO. 34 AND DISSENTING IN NO. 76. 

THE RESULT IN THESE TWO LITIGATIONS OF COURSE HAS SIGNIFICANCE FOR
THE PARTIES.  THAT IS, HOWEVER, OF RELATIVE INSIGNIFICANCE COMPARED TO
THE DIRECTIONS WHICH JUDGES IN THE DISTRICT COURTS AND COURTS OF
APPEALS WILL DRAW FROM THE COURT'S OPINIONS.  FOR ME, WHAT IS SAID HAS
NOT A LITTLE KINSHIP WITH THE PRONOUNCEMENTS OF THE DELPHIC ORACLE. 

THE OPINION IN COLD METAL PROCESS CO. V. UNITED ENGINEERING & FOUNDRY
CO., POST, P. 445, DECLARES THAT 28 U.S.C. SEC. 1291 REMAINS
UNIMPAIRED, BUT SURELY THAT SECTION DOES NOT REMAIN WHAT IT WAS BEFORE
THESE OPINIONS WERE WRITTEN.  RULE 54(B) IS APPARENTLY THE TRANSFORMING
CAUSE.  THE COURT COULD HAVE SAID THAT RULE 54(B), PROMULATED UNDER
CONGRESSIONAL AUTHORITY AND HAVING THE FORCE OF STATUTE, HAS QUALIFIED
28 U.S.C. SEC. 1291.  IT DOES NOT SAY SO.  THE COURT COULD HAVE SAID
THAT IT REJECTS THE REASONING OF THE DECISIONS IN WHICH THIS COURT FOR
OVER A CENTURY HAS INTERPRETED SEC. 1291 AS EXPRESSING A HOSTILITY
TOWARD PIECEMEAL APPEALS.  IT DOES NOT SAY SO.  THE COURT COULD HAVE
SAID THAT RULE 54(B)'S REQUIREMENT OF A CERTIFICATE FROM A DISTRICT
JUDGE MEANS THAT THE DISTRICT JUDGES ALONE DETERMINE THE CONTENT OF
FINALITY.  THE COURT DOES NOT SAY THAT EITHER. 

THE COURT DOES INDICATE THAT WHAT HAS BEEN THE CORE OF THE DOCTRINE
OF FINALITY AS APPLIED TO MULTIPLE CLAIMS LITIGATION - THAT ONLY THAT
PART OF A LITIGATION WHICH IS SEPARATE FROM, AND INDEPENDENT OF, THE
REMAINDER OF THE LITIGATION CAN BE APPEALED BEFORE THE COMPLETION OF
THE ENTIRE LITIGATION - IS NO LONGER TO BE APPLIED AS A STANDARD, OR AT
LEAST AS AN EXCLUSIVE STANDARD, FOR DECIDING WHAT IS FINAL FOR PURPOSES
OF SEC. 1291.  THE COURT DOES NOT, HOWEVER, INDICATE WHAT STANDARDS THE
DISTRICT COURTS AND THE COURTS OF APPEALS ARE NOW TO APPLY IN
DETERMINING WHEN A DECISION IS FINAL.  IT LEAVE THIS PROBLEM IN THE
FIRST INSTANCE TO THE DISTRICT COURTS, SUBJECT TO REVIEW BY THE COURTS
OF APPEALS FOR AN ABUSE OF DISCRETION.  IN OTHER INSTANCES WHERE A
DISTRICT COURT'S RULING CAN BE UPSET ONLY FOR AN ABUSE OF ITS
DISCRETION, THE SCOPE OF REVIEW IS NECESSARILY NARROW.  HERE, IN REGARD
TO THE PRESENT PROBLEM, WHAT IS TO COME UNDER REVIEW IS A NEWLY
MODIFIED REQUIREMENT OF FINALITY.  BUT THE REQUIREMENT CONTINUES TO BE
BASED UPON A STATUTE, VIZ., 28 U.S.C. SEC. 1291, AND THAT STATUTE
DEFINES AND CONSTRICTS THE JURISDICTION OF THE COURTS OF APPEALS. 
THEREFORE THE ISSUE OF COMPLIANCE WITH THIS CONGRESSIONAL COMMAND
WOULD, I SHOULD SUPPOSE, CAST UPON THE COURTS OF APPEALS A DUTY OF
INDEPENDENT JUDGMENT BROADER THAN IS IMPLIED BY THE USUAL FLAVOR OF THE
PHRASE "ABUSE OF DISCRETION." 

FOR ME, THE PROPOSITIONS EMERGING FROM ANALYSIS OF THE RELATIONSHIP
OF RULE 54(B) TO 28 U.S.C. SEC. 1291 ARE CLEAR. 

1.  28 U.S.C. SEC. 1291 IS LEFT INTACT BY RULE 54(B).  IT COULD NOT
BE OTHERWISE WITH DUE REGARD FOR THE CONGRESSIONAL POLICY EMBODIED IN
THAT SECTION AND IN VIEW OF WHAT THE ADVISORY COMMITTEE ON THE RULES
SAID IN ITS NOTE TO AMENDED RULE 54(B): 

"THE HISTORIC RULE IN THE FEDERAL COURTS HAS ALWAYS PROHIBITED
PIECEMEAL DISPOSAL OF LITIGATION AND PERMITTED APPEALS ONLY FROM FINAL
JUDGMENTS EXCEPT IN THOSE SPECIAL INSTANCES COVERED BY STATUTE  ...  .
RULE 54(B) WAS ORIGINALLY ADOPTED IN VIEW OF THE WIDE SCOPE AND
POSSIBLE CONTENT OF THE NEWLY CREATED 'CIVIL ACTION' IN ORDER TO AVOID
THE POSSIBLE INJUSTICE OF A DELAY IN JUDGMENT OF A DISTINCTLY SEPARATE
CLAIM TO AWAIT ADJUDICATION OF THE ENTIRE CASE.  IT WAS NOT DESIGNED TO
OVERTURN THE SETTLED FEDERAL RULE STATED ABOVE  ...  .

      *         *         *         *         * 

"  ...  AFTER EXTENDED CONSIDERATION, IT (THE COMMITTEE) CONCLUDED
THAT A RETENTION OF THE OLDER FEDERAL RULE WAS DESIRABLE, AND THAT THIS
RULE NEEDED ONLY THE EXERCISE OF A DISCRETIONARY POWER TO AFFORD A
REMEDY IN THE INFREQUENT HARSH CASE TO PROVIDE A SIMPLE, DEFINITE,
WORKABLE RULE.  THIS IS AFFORDED BY AMENDED RULE 54(B).  IT RE
ESTABLISHES AN ANCIENT POLICY WITH CLARITY AND PRECISION  ...  ."
REPORT OF ADVISORY COMMITTEE ON PROPOSED AMENDMENTS TO RULES OF CIVIL
PROCEDURE 70-72. 

2.  28 U.S.C. SEC. 1291 IS NOT A TECHNICAL RULE IN A GAME.  IT
EXPRESSES NOT ONLY A DEEPLY ROOTED BUT A WISELY SANCTIONED PRINCIPLE
AGAINST PIECEMEAL APPEALS GOVERNING LITIGATION IN THE FEDERAL COURTS. 
SEE COBBLEDICK V. UNITED STATES, 309 U.S. 323; RADIO STATION WOW V.
JOHNSON, 326 U.S. 120, 123-127.  THE GREAT IMPORTANCE OF THIS
CHARACTERISTIC FEATURE OF THE FEDERAL JUDICIAL SYSTEM - ITS IMPORTANCE
IN ADMINISTERING JUSTICE - IS MADE LUMINOUSLY MANIFEST BY CONSIDERING
THE EVILS WHERE, AS IN NEW YORK, PIECEMEAL REVIEWS ARE ALLOWED. 

3.  WHILE THE PRINCIPLE AGAINST PIECEMEAL APPEALS HAS BEEN
COMPENDIOUSLY AND THEREFORE, AT TIMES, LOOSELY PHRASED AS IMPLYING THAT
THE WHOLE OF A LITIGATION, NO MATTER WHAT ITS NATURE, MUST BE COMPLETED
BEFORE ANY APPEAL IS ALLOWED, SEE COLLINS V. MILLER, 252 U.S. 364, 370,
THE UNDERLYING RATIONALE OF THE PRINCIPLE HAS BEEN RESPECTED WHEN NOT
SUSCEPTIBLE OF THIS MECHANICAL WAY OF PUTTING IT.  WHAT HAVE BEEN
CALLED EXCEPTIONS ARE NOT EXCEPTIONS AT ALL IN THE SENSE OF INROADS ON
THE PRINCIPLE.  THEY HAVE NOT QUALIFIED THE CORE, THAT IS, THAT THERE
SHOULD BE NO PREMATURE, INTERMEDIATE APPEAL. 

THUS THE COURT HAS PERMITTED APPEAL BEFORE COMPLETION OF THE WHOLE
LITIGATION WHEN FAILURE TO DO SO WOULD PRECLUDE ANY EFFECTIVE REVIEW OR
WOULD RESULT IN IRREPARABLE INJURY.  SEE FORGAY V. CONRAD, 6 HOW.  201;
COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541, 545-547; SWIFT & CO. V.
COMPANIA CARIBE, 339 U.S. 684, 688-689.  A SECOND SITUATION IN WHICH
THE COURT HAS FOUND THAT AN APPEAL BEFORE TERMINATION OF THE ENTIRE
LITIGATION DID NOT CONFLICT WITH THE CONGRESSIONAL POLICY AGAINST
PIECEMEAL APPEALS IS THAT IN WHICH A PARTY TO THE COMPLETED PORTION OF
THE LITIGATION HAS NO INTEREST IN THE REST OF THE PROCEEDINGS AND TO
MAKE HIM AWAIT THEIR OUTCOME WOULD MERELY CAUSE UNFAIRNESS.  SEE
WILLIAMS V. MORGAN, 111 U.S. 684, 699; UNITED STATES V. RIVER ROUGE
CO., 269 U.S. 411, 413-414.    4.  THE EXPANSION BY THE FEDERAL RULES
OF THE ALLOWABLE CONTENT OF A PROCEEDING AND THE RANGE OF A LITIGATION
INEVITABLY ENLARGED THE OCCASIONS FOR SEVERING ONE ASPECT OR PORTION OF
A LITIGATION FROM WHAT REMAINS UNDER THE TRADITIONAL TEST OF A "FINAL
DECISION."  ON THE BASIS OF PRIOR CASES, WE HELD THAT IT WAS NOT A
DEPARTURE FROM THE POLICY AGAINST PIECEMEAL APPEALS TO PERMIT AN APPEAL
WITH RESPECT TO THAT PART OF A MULTIPLE CLAIMS LITIGATION BASED ON A
SET OF FACTS SEPARATE AND INDEPENDENT FROM THE FACTS ON WHICH THE
REMAINDER OF THE LITIGATION WAS BASED.  REEVES V. BEARDALL, 316 U.S.
283.  THE NOTE OF THE ADVISORY COMMITTEE, QUOTED SUPRA, DEMONSTRATES
THAT THE AMENDED RULE 54(B) WAS DESIGNED IN ACCORDANCE WITH THE
HISTORIC POLICY AGAINST PREMATURE APPEAL AND WITH THE DECISIONS OF THIS
COURT ALLOWING APPEAL FROM A "JUDGMENT OF A DISTINCTLY SEPARATE
CLAIM."  WHAT THE RULE DID INTRODUCE, HOWEVER, WAS A DISCRETIONARY
POWER IN THE DISTRICT JUDGE TO CONTROL APPEALABILITY BY PREVENTING A
PARTY FROM EVEN ATTEMPTING TO APPEAL A SEVERABLE PART OF A LITIGATION
UNLESS THE DISTRICT JUDGE HAS EXPRESSLY CERTIFIED THAT THERE IS NO JUST
REASON FOR DELAY AND HAS EXPRESSLY DIRECTED ENTRY OF JUDGMENT ON THAT
PHASE OF THE LITIGATION.  THIS PROVISION WAS DIRECTED TO THE KIND OF
DIFFICULTY ENCOUNTERED IN DICKINSON V. PETROLEUM CONVERSION CORP., 338
U.S. 507, IN ASCERTAINING WHETHER THE DISTRICT JUDGE IS IN FACT
FINISHED WITH A SEPARABLE PART OF THE LITIGATION. 

THE COURT CASUALLY DISREGARDS THIS LONG HISTORY OF SEC. 1291 AND THE
BEARING OF RULE 54(B) TO IT BY REJECTING THE SEPARATE-AND-INDEPENDENT
TEST AS THE BASIS FOR DETERMINING THE FINALITY OF A PART OF A MULTIPLE
CLAIMS LITIGATION.  THE COURT SAYS THAT ITS DECISION "DOES NOT IMPAIR
THE STATUTORY CONCEPT OF FINALITY EMBRACED IN SEC. 1291."  THE COURT
MAY NOT DO SO IN WORDS, FOR IT PAYS LIP-SERVICE TO SEC. 1291.  BUT THAT
MULTIPLE CLAIMS LITIGATION IS GREATLY IMPAIRED.  ENCOURAGEMENT IS
ABUNDANTLY GIVEN TO PARTIES TO SEEK SUCH APPEALS. 

THE PRINCIPLES WHICH THIS COURT HAS HERETOFORE ENUNCIATED OVER A LONG
COURSE OF DECISIONS UNDER SEC. 1291 FURNISH READY GUIDES FOR DECIDING
THE APPEALABILITY OF THE CERTIFIED PARTS OF THE LITIGATION IN THE TWO
CASES NOW BEFORE THE COURT.  COUNT II IN SEARS, ROEBUCK & CO. V.
MACKEY, ANTE, P. 427, IS APPEALABLE SINCE THE TRANSACTIONS AND
OCCURRENCES INVOLVED IN IT DO NOT INVOLVE ANY OF THOSE EMBRACED IN
COUNTS III AND IV.  COUNT I INVOLVES AT LEAST TWO TRANSACTIONS WHICH
ARE ALSO THE SUBJECT MATTER OF COUNTS III AND IV, BUT IS APPEALABLE
UNDER SEC. 1292(1) AS AN INTERLOCUTORY ORDER DENYING AN INJUNCTION.  IN
COLD METAL PROCESS CO. V. UNITED ENGINEERING & FOUNDRY CO., POST, P.
445, THE COUNTERCLAIM, EVEN IF NOT COMPULSORY, IS BASED IN SUBSTANTIAL
PART ON THE TRANSACTIONS INVOLVED IN THE MAIN LITIGATION AND HENCE NOT
APPEALABLE. 

5.  OF COURSE, AS THE COURT'S OPINION APPEARS TO RECOGNIZE, THAT
CRUCIAL PRINCIPLE OF THE DOCTRINE OF FINALITY THAT THE COURT OF APPEALS
HAS NO JURISDICTION UNLESS THERE IS A "FINAL DECISION" CANNOT BE LEFT
TO THE DISTRICT COURT.  IT IS ONE THING FOR A DISTRICT COURT TO
DETERMINE WHETHER IT IS OR IS NOT THROUGH WITH A PORTION OF A
LITIGATION.  IT IS QUITE ANOTHER THING FOR IT TO DETERMINE WHETHER THE
REQUIREMENTS OF SEC. 1291 ARE SATISFIED SO AS TO GIVE JURISDICTION TO
THE COURT OF APPEALS.  A DISTRICT COURT CAN NO MORE CONFER JURISDICTION
ON A COURT OF APPEALS OUTSIDE THE LIMITS OF 28 U.S.C. SEC. 1291 THAN A
STATE SUPREME COURT CAN CONFER JURISDICTION ON THIS COURT BEYOND THE
BOUNDS OF 28 U.S.C. SEC. 1257.  IN A PARTICULAR LITIGATION THE OPINION
OF THE DISTRICT JUDGE MAY PROPERLY BE DEEMED A VALUABLE GUIDE.  BUT
FLEXIBILITY WOULD BE A STRANGE NAME FOR AUTHORITY IN THE DISTRICT COURT
TO COMMAND THE COURT OF APPEALS TO EXERCISE JURISDICTION. 

6.  IN SUMMARY, THEN, THE COURT RIGHTLY STATES, EVEN IF IT DOES NOT
HOLD, THAT SEC. 1291 IS UNIMPAIRED BY RULE 54(B).  SECTION 1291 IS WHAT
A LONG COURSE OF DECISION HAS CONSTRUED IT TO BE. THE UNIFYING
PRINCIPLE OF DECISIONS FOR OVER A CENTURY IS OBSERVANCE OF HOSTILITY IN
THE FEDERAL JUDICIAL SYSTEM TO PIECEMEAL APPELLATE REVIEW (WITH A FEW
STRICTLY DEFINED EXCEPTIONS NOT HERE RELEVANT, SEE 28 U.S.C. SEC. 1291)
OF ONE LITIGATION, NO MATTER HOW MANY PHASES OR PARTS THERE MAY BE TO A
SINGLE JUDICIAL PROCEEDING, SO LONG AS NO PART HAS BECOME SEPARATED
FROM, AND INDEPENDENT OF, THE OTHERS.  THIS ROOTED PRINCIPLE AGAINST
PIECEMEAL APPEALS OF AN ORGANIC WHOLE - THE CORE OF SEC. 1291 - IS NOT
LEFT UNIMPAIRED WHEN ITS ENFORCEMENT IS COMMITTED WITHOUT GUIDANCE TO
THE INDIVIDUALIZED NOTIONS ABOUT FINALITY OF SOME TWO HUNDRED AND FIFTY
DISTRICT JUDGES, THEMSELVES ACCOUNTABLE TO THE DISCORDANT VIEWS OF
ELEVEN ESSENTIALLY INDEPENDENT COURTS OF APPEALS.  ALLOWING SUCH LEEWAY
TO THE DISTRICT COURTS AND COURTS OF APPEALS IS NOT FLEXIBILITY BUT
ANARCHY. 
..END :











COLD METAL PROCESS CO. V. UNITED ENGINEERING & FOUNDRY CO. 351 U.S. 445 



NO. 76.  ARGUED FEBRUARY 28, 1956.  - DECIDED JUNE 11, 1956.  - 221 F.2D
115, AFFIRMED. 


IN A MULTIPLE CLAIMS ACTION, THE FEDERAL DISTRICT COURT, PURSUANT TO
RULE 54(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE, AS AMENDED IN 1946,
EXPRESSLY DETERMINED THAT THERE WAS NO JUST REASON FOR DELAY AND
EXPRESSLY DIRECTED ENTRY OF JUDGMENT ON ONE OF THE CLAIMS.  THE
UNADJUDICATED CLAIM WAS A COUNTERCLAIM ARISING IN PART OUT OF THE SAME
TRANSACTIONS AND OCCURRENCES AS THE ADJUDICATED CLAIM.  HELD:  THE
COURT OF APPEALS HAD JURISDICTION UNDER 28 U.S.C. SEC. 1291 TO
ENTERTAIN AN APPEAL FROM THE JUDGMENT.  PP. 446-453. 

(A)  RULE 54(B), AS AMENDED, TREATS COUNTERCLAIMS, WHETHER
"COMPULSORY" OR "PERMISSIVE," LIKE OTHER MULTIPLE CLAIMS.  P. 452. 

(B)  UNDER AMENDED RULE 54(B), THE RELATIONSHIP OF THE ADJUDICATED
CLAIMS TO THE UNADJUDICATED CLAIMS IS ONE OF THE FACTORS WHICH THE
DISTRICT COURT CAN CONSIDER IN THE EXERCISE OF ITS DISCRETION.  P.
452. 

(C)  THAT THE ORDER IN THIS CASE IS APPEALABLE AT A TIME WHEN IT
WOULD NOT HAVE BEEN APPEALABLE PRIOR TO THE FEDERAL RULES OF CIVIL
PROCEDURE, OR UNDER RULE 54(B) IN ITS ORIGINAL FORM, DOES NOT MEAN THAT
RULE 54(B), AS AMENDED, IS INVALID.  PP. 452-453. 

(D)  AMENDED RULE 54(B) MEETS THE NEEDS AND PROBLEMS OF MODERN
JUDICIAL ADMINISTRATION BY ADJUSTING THE UNIT FOR APPEAL TO FIT
MULTIPLE CLAIMS ACTIONS, WHILE RETAINING A RIGHT OF JUDICIAL REVIEW
OVER THE DISCRETION EXERCISED BY THE DISTRICT COURT IN DETERMING WHEN
THERE IS NO JUST REASON FOR DELAY.  P. 453. 

(E)  RULE 54(B), AS AMENDED, DOES NOT IMPAIR THE STATUTORY CONCEPT OF
FINALITY EMBRACED IN 28 U.S.C. SEC. 1291, AND IT IS WITHIN THE
RULEMAKING POWER OF THIS COURT.  P. 453. 

COLD METAL PROCESS CO. ET AL. V. UNITED ENGINEERING & FOUNDRY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS IS A MULTIPLE CLAIMS ACTION IN WHICH THE DISTRICT COURT ENTERED
A JUDGMENT DISPOSING OF BUT ONE CLAIM.  PURSUANT TO RULE 54(B) OF THE
FEDERAL RULES OF CIVIL PROCEDURE, AS AMENDED IN 1946, (FN1) THAT COURT
EXPRESSLY DETERMINED THAT THERE WAS NO JUST REASON FOR DELAY AND
EXPRESSLY DIRECTED THE ENTRY OF JUDGMENT.  THEREUPON, AN APPEAL WAS
TAKEN TO THE COURT OF APPEALS, AND THE ISSUE BEFORE US IS WHETHER THE
LATTER COURT HAS JURISDICTION TO ENTERTAIN THAT APPEAL UNDER 28 U.S.C.
SEC. 1291, (FN2) ALTHOUGH AN UNADJUDICATED COUNTERCLAIM AWAITS
DISPOSITION IN THE DISTRICT COURT.  THE ISSUE IS COMPARABLE TO THAT
DECIDED IN SEARS, ROEBUCK & CO. V. MACKEY, ANTE, AT 427, EXCEPT THAT
HERE THE UNADJUDICATED CLAIM IS A COUNTERCLAIM ARISING IN PART OUT OF
THE SAME TRANSACTIONS AND OCCURRENCES AS THE ADJUDICATED CLAIM.  BY
APPLYING THE REASONING USED IN THE SEARS CASE, WE REACH A LIKE
CONCLUSION HERE AND UPHOLD THE JURISDICTION OF THE COURT OF APPEALS. 

WHILE THE COUNTERCLAIM ARISES IN PART OUT OF THE SAME TRANSACTIONS AS
DOES THE ADJUDICATED CLAIM IT WAS FILED LONG AFTER THE PRINCIPAL
PROCEEDING WAS BEGUN, AND IS IN THE NATURE OF AN ACTION ANCILLARY TO
THE PRINCIPAL PROCEEDING AND BEARS A SEPARATE CASE NUMBER.  UPON
REQUEST OF BOTH PARTIES, THE DISTRICT COURT HAS REMOVED THE
COUNTERCLAIM FROM THE TRIAL CALENDAR, WITHOUT PREJUDICE TO EITHER
PARTY, LEAVING IT SUBJECT TO REINSTATEMENT FOR TRIAL AT ANY TIME BY
ORDER OF THE COURT UPON ITS OWN INITIATIVE, OR UPON REQUEST OF EITHER
PARTY AFTER REASONABLE NOTICE.  A BRIEF REVIEW OF THE ENTIRE
PROCEEDINGS AND A DISCLOSURE OF ITS SUBJECT MATTER THROWS LIGHT ON THE
RELATIONSHIP BETWEEN THE ADJUDICATED CLAIM AND THE COUNTERCLAIM. 

IN 1927, PETITIONER, THE COLD METAL PROCESS COMPANY, AN OHIO
CORPORATION, AND UNITED ENGINEERING & FOUNDRY COMPANY, A PENNSYLVANIA
CORPORATION, ENTERED INTO A CONTRACT FOR THE PURPOSE OF SECURING A
PATENT IN THE NAME OF COLD METAL RELATING TO A CERTAIN TYPE OF STEEL
ROLLING MILL AND OF GRANTING TO UNITED AN EXCLUSIVE LICENSE TO MAKE,
USE AND SELL MILLS UNDER SUCH PATENT.  TO THAT END, THE PARTIES
CONTRIBUTED CLAIMS UNDER THEIR RESPECTIVE PATENT APPLICATIONS AND IT
WAS AGREED THAT THE LICENSE SHOULD BE GRANTED WHEN THE PATENT WAS
ISSUED.  THE PARTIES ALSO AGREED TO TRY, BY NEGOTIATION, TO DETERMINE
THE AMOUNT OF THE PAYMENT BY UNITED FOR THE LICENSE.  IF THE PARTIES
COULD NOT AGREE ON THAT POINT, THE SUBJECT WAS TO BE SUBMITTED TO
ARBITRATION IN A MANNER SPECIFIED IN THE CONTRACT.  (FN3) 

IN 1930, THE PATENT WAS ISSUED BUT COLD METAL REFUSED TO TREAT THE
1927 CONTRACT AS CONFERRING AN EXCLUSIVE LICENSE ON UNITED.  COLD METAL
MAINTAINED THAT UNITED WAS NOT A LICENSEE UNTIL THE AMOUNT DUE COLD
METAL HAD BEEN DETERMINED AND PAID.  UNITED, ON THE OTHER HAND, TREATED
THE CONTRACT AS AN ENFORCEABLE EXCLUSIVE LICENSE UNDER WHICH THE
LICENSE FEE WAS TO BE DETERMINED LATER. 

AFTER LITIGATION NOT NOW MATERIAL, (FN4) COLD METAL, IN 1934,
INSTITUTED THE PRESENT PROCEEDING, EQUITY NO. 2991, AGAINST UNITED IN
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
PENNSYLVANIA.  COLD METAL ASKED (1) FOR AN INJUNCTION RESTRAINING
UNITED FROM PROSECUTING CERTAIN SUITS, PENDING IN OHIO AND ELSEWHERE,
FOUNDED UPON UNITED'S CLAIM OF EXCLUSIVE RIGHTS UNDER THE PATENT, AND
(2) FOR DETERMINATION OF THE AMOUNT TO BE PAID BY UNITED UNDER THE 1927
CONTRACT.  THE COURT DECLINED TO ISSUE A PRELIMINARY INJUNCTION, 9 F.
SUPP. 994, BUT COLD METAL APPEALED FROM SUCH DENIAL AND, IN 1935,
OBTAINED A REVERSAL DIRECTING THE INJUNCTION TO BE ISSUED, 79 F.2D
666. 

IN 1936, COLD METAL, IN LINE WITH THE FOREGOING RESULTS, FILED A
SUPPLEMENTAL COMPLAINT ASKING THAT THE 1927 CONTRACT BE "CANCELLED,
REVOKED AND ANNULLED" AND THAT UNITED BE ENJOINED FROM FURTHER
OPERATIONS UNDER THE PATENT.  HOWEVER, IN 1938, THE DISTRICT COURT,
AFTER TRIAL, HELD THE CONTRACT VALID AND ENFORCEABLE, AND DIRECTED AN
ACCOUNTING BEFORE A MASTER.  83 F. SUPP. 914. 

COLD METAL APPEALED BUT, IN 1939, THE COURT OF APPEALS REVERSED ITS
1935 DECISION AND LARGELY SUSTAINED UNITED'S POSITION.  IT ORDERED THAT
THE INJUNCTION AGAINST UNITED'S INFRINGEMENT SUITS BE DISSOLVED AND
HELD THAT THE 1927 CONTRACT CREATED A VALID AND ENFORCEABLE EXCLUSIVE
LICENSE IN FAVOR OF UNITED.  IT ALSO STATED THAT THE MASTER COULD
DETERMINE, FROM AN "UNDERSTANDING" BETWEEN THE PARTIES AS SHOWN BY THE
RECORD, THE AMOUNT DUE FROM UNITED UNDER THE 1927 CONTRACT.  107 F.2D
27. 

IN 1941, UNITED ASKED LEAVE TO FILE AN AMENDED ANSWER AND
COUNTERCLAIM, COMPLAINING THAT COLD METAL'S RECENT ACTS WERE
INCONSISTENT WITH THE 1939 JUDGMENT OF THE COURT OF APPEALS.  IN 1942,
THE DISTRICT COURT DENIED THAT MOTION ON THE GROUND THAT IT COULD CARRY
OUT ONLY THE EXISTING MANDATE OF THE COURT OF APPEALS.  43 F. SUPP.
375.  IT SUGGESTED, HOWEVER, THAT THE INJUNCTION SOUGHT BY UNITED IN
ITS COUNTERCLAIM SHOULD BE THE SUBJECT MATTER OF ANOTHER ACTION, AND
THAT UNITED COULD ASSERT, BEFORE THE MASTER, COLD METAL'S BREACHES OF
THE 1927 CONTRACT.  IN 1943, THE DISTRICT COURT MODIFIED ITS 1938
DECREE TO MAKE IT CONFORM TO THE COURT OF APPEALS' ORDER OF 1939.  IT
ALSO APPOINTED A MASTER TO DETERMINE NOT ONLY THE AMOUNT DUE COLD METAL
FROM UNITED FOR ITS PAST OPERATIONS, BUT THE PAYMENTS TO BE MADE ON
LICENSED MILLS IN THE FUTURE. 

IN 1949, UNITED REFILED ITS CLAIMS AS AN "ANCILLARY CROSS COMPLAINT"
IN CIVIL ACTION NO. 7744.  UNITED SOUGHT, INTER ALIA (1) TO ENJOIN THE
PROSECUTION OF INFRINGEMENT SUITS BY COLD METAL AGAINST PARTIES USING
MILLS UNDER LICENSES GRANTED BY UNITED, (2) TO REQUIRE COLD METAL TO
ACCOUNT FOR ANY FUNDS IT HAD COLLECTED FOR THE USE OF SUCH MILLS WITHIN
THE FIELD OF UNITED'S EXCLUSIVE LICENSE, AND (3) TO SET OFF THOSE FUNDS
FROM ANY PAYMENT OR ROYALTY THAT MIGHT BE DUE FROM UNITED TO COLD METAL
UNDER THE 1927 CONTRACT.  IN 1950, THE DISTRICT COURT DISMISSED THE
CROSS COMPLAINT ON THE GROUND THAT IT WAS NOT ANCILLARY TO EQUITY NO.
2991.  92 F. SUPP. 596.  HOWEVER, IN 1951, THE COURT OF APPEALS
REVERSED THE DISTRICT COURT.  IT HELD THAT UNITED'S CROSS COMPLAINT
WAS, IN REALITY, A COUNTERCLAIM, ANCILLARY TO EQUITY NO. 2991, AND,
THEREFORE, WITHIN THE JURISDICTION OF THE DISTRICT COURT.  190 F.2D
217.  THE COURT OF APPEALS REVIEWED THE PREVIOUS COURSE OF THE
PROCEEDINGS AND POINTED OUT THAT THE CLAIMS NOW MADE BY UNITED IN THIS
COUNTERCLAIM ARE ENTIRELY DEPENDENT UPON THE 1939 DECISION OF THAT
COURT, 107 F.2D 27, WHICH UPHELD THE VALIDITY OF UNITED'S EXCLUSIVE
LICENSE. 

INTO THIS SITUATION, IN 1954, CAME THE MASTER'S REPORT ON THE
ACCOUNTING IN EQUITY NO. 2991.  IT LISTED THE LICENSED MILLS, FIXED THE
COMPENSATION PAYABLE UNDER THE 1927 CONTRACT, AND FOUND THAT UNITED'S
LICENSE HAD EXISTED FROM 1930 TO 1947 AND THAT UNITED'S CUSTOMERS WERE
DULY LICENSED TO USE THE PATENTED MILLS.  IT ALSO HELD THAT CERTAIN
UNITED MILLS WERE EXEMPT FROM ROYALTY, THAT COLD METAL HAD FAILED TO
RESPECT THE LICENSE OR TO PERFORM ALL OF ITS OBLIGATIONS UNDER THE 1927
CONTRACT, BUT THAT UNITED OWED COLD METAL A SUBSTANTIAL SUM UNDER IT. 

IN 1955, THE DISTRICT COURT APPROVED THE MASTER'S REPORT IN ALL
RESPECTS AND ENTERED A JUDGMENT AGAINST UNITED FOR $387,650, WITH
INTEREST AT 6% FROM THE DATE OF FILING OF THE REPORT.   BOTH PARTIES
APPEALED.  COLD METAL AT ONCE MOVED TO DISMISS UNITED'S APPEAL ON THE
GROUND THAT THE DISTRICT COURT HAD NOT MADE THE CERTIFICATION REQUIRED
BY RULE 54(B).  WITH PERMISSION OF THE COURT OF APPEALS, THE DISTRICT
COURT THEN AMENDED ITS JUDGMENT TO ADD SUCH CERTIFICATION.  (FN5) 

AGAIN BOTH PARTIES APPEALED.  AGAIN COLD METAL MOVED TO DISMISS
UNITED'S APPEAL FROM THE AMENDED JUDGMENT BECAUSE THE COURT OF APPEALS
LACKED JURISDICTION TO ENTERTAIN IT.  THIS TIME THE MOTION WAS DENIED
WITH A PER CURIAM OPINION IN WHICH THE COURT OF APPEALS SAID "WE THINK
THE DETERMINATION MADE UNDER THE CIRCUMSTANCES OF THIS CASE IS THE VERY
KIND OF THING RULE 54(B) WAS WRITTEN TO PROVIDE FOR.  WE SEE NO
VIOLATION OF DISCRETION ON THE PART OF THE DISTRICT JUDGE IN ENTERING
IT."  221 F.2D 115. 

ACCORDINGLY, ON OCTOBER 3, 1955, IN THE COURT OF APPEALS, THE PARTIES
ARGUED THEIR RESPECTIVE APPEALS ON THEIR MERITS IN EQUITY NO. 2991. 
HOWEVER, BEFORE ANY DECISION WAS RENDERED ON THE MERITS, WE GRANTED
CERTIORARI UPON COLD METAL'S PETITION QUESTIONING THE JURISDICTION OF
THE COURT OF APPEALS TO ENTERTAIN THE APPEAL.  350 U.S. 819.  WE AGREE
WITH THE COURT OF APPEALS THAT THIS IS THE VERY KIND OF CASE FOR WHICH
AMENDED RULE 54(B) WAS DESIGNED.  THE APPEALABILITY OF THE ADJUDICATED
CLAIM IS UPHELD SO THAT THE MERITS OF THE EXISTING JUDGMENT MAY BE
DETERMINED AT THIS STATE OF THE PROCEEDINGS. 

PRIOR TO THE PROMULGATION OF THE FEDERAL RULES OF CIVIL PROCEDURE IN
1939, IT MAY WELL HAVE BEEN TRUE THAT THE COURT OF APPEALS WOULD NOT,
AT THIS STAGE, HAVE HAD JURISDICTION OVER UNITED'S APPEAL.   UNDER THE
SINGLE JUDICIAL UNIT THEORY OF FINALITY WHICH WAS THEN RECOGNIZED, THE
COURT OF APPEALS WOULD HAVE BEEN WITHOUT JURISDICTION UNTIL UNITED'S
COUNTERCLAIM ALSO HAD BEEN DECIDED BY THE DISTRICT COURT.  THAT WOULD
HAVE BEEN SO EVEN IF THE COUNTERCLAIM DID NOT ARISE OUT OF THE SAME
TRANSACTION AND OCCURRENCE AS COLD METAL'S CLAIM.  (FN6)  HOWEVER, AS
STATED IN SEARS, ROEBUCK & CO. V. MACKEY, ANTE, RULE 54(B), IN ITS
ORIGINAL FORM, MODIFIED THE JUDICIAL UNIT THEORY IN RESPECT TO MULTIPLE
CLAIMS ACTIONS.  ACCORDINGLY, UNDER THAT RULE, IT IS LIKELY THAT IF
UNITED'S COUNTERCLAIM QUALIFIED AS "PERMISSIVE," (FN7) RATHER THAN AS
"COMPULSORY," (FN8) THE COURT OF APPEALS WOULD HAVE HAD JURISDICTION TO
ENTERTAIN THE APPEAL NOW BEFORE US.  (FN9)  THIS CONCLUSION FOLLOWS
FROM THE FACT THAT THE TEST OF APPEALABILITY UNDER THE ORIGINAL RULE
WAS WHETHER THE ADJUDICATED CLAIMS WERE SEPARATE FROM, AND INDEPENDENT
OF, THE UNADJUDICATED CLAIMS.  SEE REEVES V. BEARDALL, 316 U.S. 283. 

HOWEVER, AS SET FORTH IN SEARS, ROEBUCK & CO. V. MACKEY, ANTE, THAT
TEST LED TO UNCERTAINTY OF WHICH THE PRESENT CASE MIGHT HAVE BEEN AN
EXAMPLE.  (FN10)  THE AMENDED RULE OVERCOMES THAT DIFFICULTY AND, UNDER
ITS TERMS, WE NEED NOT DECIDE WHETHER UNITED'S COUNTERCLAIM IS
COMPULSORY OR PERMISSIVE.  THE AMENDED RULE, IN CONTRAST TO THE RULE IN
ITS ORIGINAL FORM, TREATS COUNTERCLAIMS, WHETHER COMPULSORY OR
PERMISSIVE, LIKE OTHER MULTIPLE CLAIMS.  IT PROVIDES THAT "WHEN MORE
THAN ONE CLAIM FOR RELIEF IS PRESENTED IN AN ACTION, WHETHER AS A
CLAIM, COUNTERCLAIM, CROSS-CLAIM, OR THIRD-PARTY CLAIM, THE DISTRICT
COURT MAY DIRECT THE ENTRY OF A FINAL JUDGMENT UPON ONE OR MORE BUT
LESS THAN ALL OF THE CLAIMS  ...  ."  COUNTERCLAIMS AND CROSS-CLAIMS
ARE THUS EQUATED WITH THE OTHERS.  SEE BENDIX AVIATION CORP. V. GLASS,
195 F.2D 267 (C.A. 3D CIR.).  THEREFORE, UNDER THE AMENDED RULE, THE
RELATIONSHIP OF THE ADJUDICATED CLAIMS TO THE UNADJUDICATED CLAIMS IS
ONE OF THE FACTORS WHICH THE DISTRICT COURT CAN CONSIDER IN THE
EXERCISE OF ITS DISCRETION.  IF THE DISTRICT COURT CERTIFIES A FINAL
ORDER ON A CLAIM WHICH ARISES OUT OF THE SAME TRANSACTION AND OCCURENCE
AS PENDING CLAIMS, AND THE COURT OF APPEALS IS SATISFIED THAT THERE HAS
BEEN NO ABUSE OF DISCRETION, THE ORDER IS APPEALABLE. 

THE REASONING AND THE RESULT IN SEARS, ROEBUCK & CO. V. MACKEY, ANTE,
IS DISPOSITIVE OF THIS CASE.   THE ORDER APPEALED FROM FINALLY
ADJUDICATES COLD METAL'S CLAIM FOR RELIEF, AND THE COURT OF APPEALS HAS
HELD THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN CERTIFYING
THE ABSENCE OF JUST REASONS FOR DELAY.  THAT THIS ORDER IS APPEALABLE
AT A TIME WHEN IT WOULD NOT HAVE BEEN APPEALABLE PRIOR TO THE FEDERAL
RULES OF CIVIL PROCEDURE, OR UNDER RULE 54(B) IN ITS ORIGINAL FORM,
DOES NOT MEAN THAT RULE 54(B), AS AMENDED, IS INVALID.  IT APPLIES ONLY
TO A FINAL DECISION OF ONE OR MORE CLAIMS FOR RELIEF.  THE AMENDED RULE
MEETS THE NEEDS AND PROBLEMS OF MODERN JUDICIAL ADMINISTRATION BY
ADJUSTING THE UNIT FOR APPEAL TO FIT MULTIPLE CLAIMS ACTIONS, WHILE
RETAINING A RIGHT OF JUDICIAL REVIEW OVER THE DISCRETION EXERCISED BY
THE DISTRICT COURT IN DETERMINING WHEN THERE IS NO JUST REASON FOR
DELAY.  THIS DOES NOT IMPAIR THE STATUTORY CONCEPT OF FINALITY EMBRACED
IN SEC. 1291, AND, AS HELD IN SEARS, ROEBUCK & CO. V. MACKEY, ANTE, IS
WITHIN THE RULEMAKING POWER OF THIS COURT.  AFFIRMED. 

FN1  FOR TEXT, SEE SEARS, ROEBUCK & CO. V. MACKEY, ANTE, AT 434-435. 

FN2  FOR TEXT, SEE SEARS, ROEBUCK & CO. V. MACKEY, ANTE, AT 431. 

FN3  THE ENTIRE AGREEMENT APPEARS IN 107 F.2D 27, 28-29, N. 1. 

FN4  SEE 3 F. SUPP. 120, 68 F.2D 564, CERT. DENIED, 291 U.S. 675, ALL
RELATING TO EQUITY NO. 2506. 

FN5  THE AMENDMENT INCLUDED AN EXPRESS DETERMINATION THAT THERE WAS
"NO JUST REASON FOR DELAY IN ENTERING AN ORDER AND FINAL JUDGMENT
DISPOSING OF THE ISSUES RAISED BY THE REPORT OF THE SPECIAL MASTER  ...
.'  THIS WAS DONE AFTER A HEARING DURING WHICH THE DISTRICT COURT SAID
"I THINK, SO FAR AS THIS COURT IS CONCERNED, WITHOUT A DECISION BY THE
COURT OF APPEALS ON THAT REPORT (OF THE SPECIAL MASTER), THAT WE WOULD
JUST BE WANDERING IN AN AREA WHERE WE COULDN'T SEE OUR WAY OUT IF WE
TRIED ANY OTHER ISSUE UNTIL THIS CASE IS DECIDED."    AFTER THE
MASTER'S REPORT WAS FILED, AND BEFORE OBJECTIONS TO IT HAD BEEN FILED,
COUNSEL FOR EACH SIDE JOINTLY INFORMED THE COURT THAT THEY DESIRED TO
DISPOSE OF THE MASTER'S REPORT BEFORE TRYING THE ISSUES IN THE PENDING
(COUNTERCLAIM) CIVIL ACTION NO. 7744, AND THAT THE FINAL ACTION ON THE
MASTER'S REPORT MIGHT EVEN MAKE IT UNDESIRABLE TO TRY THAT ACTION.  THE
COURT, THEREUPON, CONTINUED, SINE DIE, THE PRETRIAL CONFERENCE IT HAD
SCHEDULED IN CIVIL ACTION NO. 7744, AND REMOVED THE CASE FROM THE TRIAL
CALENDAR, WITHOUT PREJUDICE TO EITHER PARTY AND SUBJECT TO
REINSTATEMENT.  THAT IS THE PRESENT STATUS OF THE "COUNTERCLAIM." 

FN6  SEE AYRES V. CARVER, 17 HOW.  591; BOWKER V. UNITED STATES, 186
U.S. 135; GENERAL ELECTRIC CO. V. MARVEL RARE METALS CO., 287 U.S. 430;
TOOMEY V. TOOMEY, 80 U.S. APP. D.C.  77, 149 F.2D 19. 

FN7  FED. RULES CIVL PROC., 13(B), DEFINES A "PERMISSIVE"
COUNTERCLAIM AS FOLLOWS:  "A PLEADING MAY STATE AS A COUNTERCLAIM ANY
CLAIM AGAINST AN OPPOSING PARTY NOT ARISING OUT OF THE TRANSACTION OR
OCCURRENCE THAT IS THE SUBJECT MATTER OF THE OPPOSING PARTY'S CLAIM." 

FN8  FED. RULES CIV. PROC., 13(A), DEFINES A COMPULSORY COUNTERCLAIM
AS FOLLOWS: 

"A PLEADING SHALL STATE AS A COUNTERCLAIM ANY CLAIM WHICH AT THE TIME
OF SERVING THE PLEADING THE PLEADER HAS AGAINST ANY OPPOSING PARTY, IF
IT ARISES OUT OF THE TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT
MATTER OF THE OPPOSING PARTY'S CLAIM AND DOES NOT REQUIRE FOR ITS
ADJUDICATION THE PRESENCE OF THIRD PARTIES OF WHOM THE COURT CANNOT
ACQUIRE JURISDICTION, EXCEPT THAT SUCH A CLAIM NEED NOT BE SO STATED IF
AT THE TIME THE ACTION WAS COMMENCED THE CLAIM WAS THE SUBJECT OF
ANOTHER PENDING ACTION." 

FN9  SEE AUDI VISION, INC. V. RCA MFG. CO., 136 F.2D 621 (C.A.2D
CIR.); TOOMEY V. TOOMEY, SUPRA. 

FN10  SEE SEARS, ROEBUCK & CO. V. MACKEY, ANTE, AT 433-434. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE HARLAN,
DISSENTING IN THIS CASE, BUT CONCURRING IN SEARS, ROEBUCK & CO. V.
MACKEY, SEE ANTE, P. 439. 
..END :















UNITED STATES, DARCY V. HANDY 351 U.S. 454 


NO. 323.  ARGUED MAY 1-2, 1956 - DECIDED JUNE 11, 1956 - 224 F.2D 504,
AFFIRMED. 


PETITIONER, A STATE PRISONER UNDER A SENTENCE OF DEATH FOR MURDER
COMMITTED DURING THE COURSE OF AN ARMED ROBBERY, BROUGHT A HABEAS
CORPUS PROCEEDING IN A FEDERAL DISTRICT COURT, CLAIMING THAT HIS
CONVICTION WAS OBTAINED IN VIOLATION OF HIS RIGHTS TO DUE PROCESS OF
LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT.  HE CHARGED THAT HE WAS
TRIED UNDER PREJUDICIAL CIRCUMSTANCES AND IMPROPER INFLUENCES IN THAT
AN ATMOSPHERE OF HYSTERIA AND PREJUDICE PREVAILED AT THE STATE TRIAL,
INCLUDING THE PREJUDICIAL CONDUCT AND FREQUENT PRESENCE IN THE
COURTROOM OF ANOTHER JUDGE OF THE SAME COURT, WHO RECENTLY HAD PRESIDED
OVER A TRIAL OF TWO ASSOCIATES OF PETITIONER WHICH HAD RESULTED IN A
LIKE CONVICTION AND SENTENCE FOR THE MURDER.  HELD:  ON THE RECORD IN
THIS CASE, PETITIONER WAS NOT DENIED DUE PROCESS OF LAW.  PP. 455-467. 

(A)  THE BURDEN WAS ON PETITIONER TO SHOW SUCH ESSENTIAL UNFAIRNESS
AS VITIATES HIS TRIAL, AND THE BURDEN MUST BE SUSTAINED NOT AS A MATTER
OF SPECULATION BUT AS A DEMONSTRABLE REALITY.  P. 462. 

(B)  THE MOST THAT PETITIONER HAS SHOWN IS THAT, IN CERTAIN RESPECTS,
OPPORTUNITY FOR PREJUDICE EXISTED.  P. 462. 

(C)  THE RECORD DOES NOT SUPPORT THE CLAIM THAT THE NEWS COVERAGE OF
THE CRIME AND OF THE PROCEEDINGS PRIOR TO PETITIONER'S TRIAL CREATED
SUCH AN ATMOSPHERE OF HYSTERIA AND PREJUDICE AS PRECLUDED A FAIR
TRIAL.  PP. 463-464. 

(D)  THERE IS NO MERIT IN PETITIONER'S CLAIM THAT HE WAS "FORCED" TO
TRIAL IMMEDIATELY AFTER THE TRIAL OF HIS ASSOCIATES, OR IN HIS CLAIM
THAT THE TRIAL JUDGE, SUA SPONTE, SHOULD HAVE CHANGED THE VENUE OR
CONTINUED THE TRIAL.  P. 464. 

(E)  ON THE RECORD IN THIS CASE, THE OTHER JUDGE'S PRESENCE AND
CONDUCT ON THE BENCH AND IN THE COURTROOM WERE NOT SO PREJUDICIAL AS TO
DENY DUE PROCESS.  PP. 464-467. 

(F)  PETITIONER HAS NOT SUSTAINED THE BURDEN OF SHOWING THAT HIS
TRIAL WAS ESSENTIALLY UNFAIR IN A CONSTITUTIONAL SENSE.  P. 467. 

UNITED STATES EX REL. DARCY V. HANDY, WARDEN, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER THE ACCUSED, WHO IS UNDER A
SENTENCE OF DEATH, IMPOSED BY A PENNSYLVANIA COURT AND JURY FOR MURDER
COMMITTED DURING THE COURSE OF AN ARMED ROBBERY, WAS TRIED UNDER SUCH
PREJUDICIAL CIRCUMSTANCES AND IMPROPER INFLUENCES THAT HE WAS DENIED
THE DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES.  THE CHARGES IN THIS FEDERAL HABEAS
CORPUS PROCEEDING ARE THAT AN ATMOSPHERE OF HYSTERIA AND PREJUDICE
PREVAILED AT THE STATE TRIAL, INCLUDING THE PREJUDICIAL CONDUCT AND
FREQUENT PRESENCE IN THE COURTROOM OF ANOTHER JUDGE OF THE SAME COURT,
WHO RECENTLY HAD PRESIDED OVER A TRIAL OF TWO ASSOCIATES OF PETITIONER
AND WHICH HAD RESULTED IN A LIKE CONVICTION AND SENTENCE FOR THE MURDER
COMMITTED.  FOR THE REASONS HEREAFTER STATED, WE AGREE WITH THE
CONSIDERED JUDGMENTS OF THE STATE COURT, PENNSYLVANIA EX REL. DARCY V.
CLAUDY, 367 PA. 130, 79 A.2D 785; THE FEDERAL DISTRICT COURT, 130 F.
SUPP. 270; AND THE COURT OF APPEALS, 224 F.2D 504; HOLDING THAT THE
ACCUSED WAS NOT DENIED DUE PROCESS OF LAW. 

LATE ON DECEMBER 22, 1947, PETITIONER DARCY AND THREE ASSOCIATES,
FOSTER, ZEITZ AND CAPONE, ARMED WITH REVOLVERS, HELD UP A TAVERN IN
FEASTERVILLE, NEAR DOYLESTOWN, BUCKS COUNTY, PENNSYLVANIA.  (FN1)
DURING THE ROBBERY TWO PATRONS OF THE TAVERN WERE SHOT AND SEVERELY
WOUNDED.  AS PETITIONER AND HIS COMPANIONS LEFT THE SCENE, ZEITZ FIRED
AT AND KILLED A BYSTANDER, WILLIAM KELLY.  ABOUT A HALF HOUR LATER,
PETITIONER AND HIS COMPANIONS COMMITTED ANOTHER ARMED ROBBERY IN WHICH
SHOTS ALSO WERE FIRED BUT NO ONE WAS INJURED.  BEFORE 2 A.M., THEY WERE
ARRESTED BY PHILADELPHIA POLICE.  WHILE IN THAT CUSTODY, THEY
VOLUNTARILY ADMITTED THEIR PARTICIPATION NOT ONLY IN THE ABOVE
ROBBERIES BUT IN SEVEN OTHERS COMMITTED SINCE NOVEMBER 30.  IN THESE A
TOTAL OF SEVEN PERSONS HAD BEEN SHOT OR OTHERWISE INJURED. 

ON JANUARY 5, 1948, PETITIONER AND HIS THREE COMPANIONS WERE BROUGHT
TO BUCKS COUNTY, CHARGED WITH THE MURDER OF WILLIAM KELLY AND
COMMITTED, WITHOUT BAIL, TO AWAIT ACTION BY THE GRAND JURY.  ON
FEBRUARY 10, ALL FOUR BEING PRESENT AND ALL BUT ONE BEING REPRESENTED
BY COUNSEL OF HIS OWN CHOICE, THEY WERE SEVERALLY INDICTED FOR MURDER. 
THE DISTRICT ATTORNEY MOVED FOR A CONTINUANCE BECAUSE FOSTER WAS
WITHOUT COUNSEL, AND BECAUSE ONE PROSECUTION WITNESS WAS IN A CRITICAL
CONDITION FROM THE WOUND RECEIVED AT THE TIME OF THE ROBBERY.  THE
CONTINUANCE WAS GRANTED.  ON MARCH 1, COUNSEL FOR PETITIONER AND CAPONE
MOVED FOR A SEVERANCE AND SEPARATE TRIALS.  JUDGE KELLER OF THE NISI
PRIUS OR TRIAL COURT (COURT OF OYER AND TERMINER AND GENERAL JAIL
DELIVERY OF BUCKS COUNTY) SUGGESTED THE ADVISABILITY OF A COMBINATION
TRIAL, BUT GRANTED THE MOTIONS WHEN COUNSEL INSISTED ON THEIR RIGHT TO
THEM.  ON MARCH 3, JUDGE BOYER, OF THE SAME COURT, APPOINTED TWO LOCAL
ATTORNEYS TO REPRESENT FOSTER. 

IN MARCH, DEFENSE COUNSEL WERE ADVISED THAT THE FOSTER-ZEITZ CASE
WOULD BE CALLED FIRST, PETITIONER'S CASE THE FOLLOWING WEEK, AND THEN
CAPONE'S CASE. 

WHEN IT BECAME APPARENT THAT THE FOSTER-ZEITZ TRIAL, WHICH BEGAN MAY
24, WOULD CONTINUE INTO THE WEEK OF JUNE 1, THE COURT DIRECTED THE
SHERIFF'S OFFICE TO NOTIFY THE PROSPECTIVE JURORS WHO HAD BEEN SUMMONED
FOR JUNE 1 NOT TO APPEAR UNTIL JUNE 7.  THEY WERE SO NOTIFIED AND, WITH
ONE EXCEPTION, DID NOT APPEAR FOR DUTY UNTIL THE LATTER DATE.  FOR THE
FOSTER-ZEITZ AND PETITIONER'S TRIALS, THE PROSPECTIVE JURORS WAITED
OUTSIDE THE MAIN COURTROOM, WERE CALLED IN INDIVIDUALLY AND WERE
SUBJECTED TO A SEARCHING EXAMINATION ON VOIR DIRE.  WHILE NEITHER
FOSTER, ZEITZ NOR PETITIONER EXERCISED ALL OF HIS PEREMPTORY
CHALLENGES, TWO EXTRA VENIRES WERE CALLED IN ORDER TO COMPLETE THE TWO
JURIES.  NO JURORS SAT IN BOTH CASES.  ONCE ACCEPTED, THE RESPECTIVE
JURIES WERE KEPT TOGETHER DURING EACH TRIAL UNDER THE SUPERVISION OF
COURT OFFICIALS.  THE JURORS WERE NOT PERMITTED TO SEE NEWSPAPERS,
LISTEN TO RADIOS, OR SEE TELEVISION PROGRAMS, AND WERE KEPT FREE FROM
ANY OUTSIDE INFLUENCE OR CONTACT. 

AT NO TIME DURING EITHER THE FOSTER-ZEITZ TRIAL OR PETITIONER'S TRIAL
WAS THE COURTROOM FILLED TO CAPACITY AND AT NO TIME WAS THERE ANY NEED
FOR THE COURT TO CALL FOR ORDER.  NO OUTBURSTS, DISTURBANCES OR
UNTOWARD INCIDENTS OCCURRED IN THE COURTROOM OR ELSEWHERE IN THE
COUNTY.  (FN2)  THE PROCEEDINGS WERE REPORTED DAILY IN THE PRESS AND,
ON OCCASION, BY RADIO.  THE REPORTING WAS FACTUAL, WITH SOME
EDITORIALS.  (FN3)  THE NEWS COVERAGE DIMINISHED A FEW WEEKS AFTER THE
ROBBERY, INCREASED AND SUBSIDED AGAIN AFTER THE GRAND-JURY PROCEEDINGS,
AND INCREASED JUST BEFORE THE TRIALS. 

IN PENNSYLVANIA, THE JURY FIXES THE PENALTY FOR MURDER IN THE FIRST
DEGREE.  (FN4)  NO QUESTION WAS RAISED AS TO IDENTITY OR AS TO
PETITIONER'S PARTICIPATION IN THE ROBBERY.  THE STRATEGY OF THE DEFENSE
IN BOTH TRIALS WAS TO SEEK TO KEEP THE PUNISHMENT DOWN TO LIFE
IMPRISONMENT.  ON FRIDAY, JUNE 4, THE JURY IN THE FOSTER-ZEITZ TRIAL
RETURNED A VERDICT OF GUILTY AND FIXED THE PENALTY AT DEATH.  AFTER
RECEIVING THE VERDICT, THE TRIAL JUDGE, JUDGE BOYER, WAS, ON JUNE 5,
QUOTED IN THE LOCAL NEWSPAPER AS HAVING SAID TO THAT JURY: 

"'I DON'T SEE HOW YOU COULD, UNDER THE EVIDENCE, HAVE REACHED ANY
OTHER VERDICT.  YOUR VERDICT MAY HAVE A VERY WHOLESOME EFFECT ON OTHER
YOUNG MEN IN ALL VICINITIES WHO MAY COME TO REALIZE THE SERIOUSNESS OF
THE FOLLY IN WHICH SO MANY YOUNG MEN INDULGE IN THESE DAYS.  THE ONLY
HOPE OF STEMMING THE TIDE OF SUCH CRIME BY YOUTH IS TO ENFORCE THE LAW
WHICH YOU HAVE INDICATED BY YOUR DECISION.'"  130 F. SUPP., AT 291
292. 

A FEW MOMENTS EARLIER, JUDGE KELLER, IN DISCHARGING THE REMAINDER OF
THE MAY 24 PANEL, HAD, IN THE SAME COURTROOM, COMMENDED THEM FOR THEIR
SATISFACTORY VERDICTS, THE LAST ONE OF WHICH HAD BEEN AN ACQUITTAL ON A
CHARGE OF RAPE. 

ON MONDAY, JUNE 7, PETITIONER'S TRIAL BEGAN.  THE COURT OPENED AT 10
A.M., WITH BOTH JUDGE BOYER AND JUDGE KELLER PRESIDING.  AS USUAL,
MISCELLANEOUS BUSINESS, UNRELATED TO THE IMPENDING TRIAL, WAS FIRST
DISPOSED OF BY THE COURT.  PETITIONER WAS THEN ARRAIGNED.  HE PLEADED
NOT GUILTY AND, UPON JUDGE KELLER'S DIRECTION, THE SELECTION OF THE
JURY WAS COMMENCED.  AT VARIOUS TIMES DURING PETITIONER'S TRIAL,
ALTHOUGH IT WAS PRESIDED OVER BY JUDGE KELLER, JUDGE BOYER WAS IN
ATTENDANCE, SITTING EITHER ON THE BENCH WITH JUDGE KELLER OR IN THE
COURTROOM WITHIN THE ENCLOSURE RESERVED FOR ATTORNEYS, THE PARTIES AND
THE PRESS.  IN THIS CONNECTION, THE FEDERAL DISTRICT COURT FOUND THAT: 

"BY LONG ESTABLISHED TRADITION IN BUCKS COUNTY, EACH MORNING AND
AFTERNOON AT THE OPENING OF COURT BOTH JUDGES TAKE THE BENCH TO
ENTERTAIN MOTIONS AND OTHER MISCELLANEOUS MATTERS IN THE CRIMINAL,
COMMON PLEAS - LAW AND EQUITY - AND ORPHANS COURT.  ONCE THIS WORK IS
COMPLETED, ONE OF THE JUDGES, IF ENGAGED IN A TRIAL IN THAT COURT ROOM,
REMAINS ON THE BENCH; THE OTHER JUDGE LEAVING TO PERFORM DUTIES IN
ANOTHER COURT ROOM OR IN CHAMBERS.  THE PRACTICE USED IN MANY
PENNSYLVANIA COURTS  ... WAS CONTINUED DAILY NO MATTER WHAT COURT WAS
IN SESSION OR THE NATURE OF THE TRIAL BUT NOT ON JUNE 4 WHEN JUDGE
BOYER CHARGED THE JURY (TRYING FOSTER AND ZEITZ); AND  ...  NOT ON JUNE
8 AND 10. 

"THE CRIMINAL DOCKET  ...  A RECORD OF INDIVIDUAL TRIALS, SHOWS BOTH
JUDGES ON THE BENCH AT 10:00 A.M. MAY 24  ... 9:30 A.M. JUNE 2  ...
10:00 A.M. JUNE 7  ...  .  THE COURT REPORTER'S NOTES OF TESTIMONY SHOW
ONLY ONE INSTANCE OF JUDGE BOYER TAKING ANY PART WHATSOEVER IN THE
DARCY TRIAL, I.E., DURING A SIDEBAR DISCUSSION OUT OF THE HEARING OF
THE JURY SHORTLY AFTER COURT CONVENED ON SATURDAY MORNING, JUNE 12  ...
.  UNDER CONSIDERATION WAS A DIFFICULT QUESTION OF LAW ON THE
ADMISSIBILITY OF EVIDENCE OF OTHER OFFENSES  ...  IN VIEW OF THE ACT OF
JULY 3, 1947, P.L. 1239, 19 P.S. PA. SEC. 711 NOTE.  JUDGE BOYER
INDICATED HIS THINKING ON THE MATTER.  UPON OBJECTION BY COUNSEL THE
DISCUSSION ENDED; JUDGE KELLER RULED; JUDGE BOYER LEFT THE BENCH
SHORTLY AFTER AND DID NOT RETURN DURING THE REMAINDER OF THE TRIAL.  IT
MAY BE THAT DURING THE FOSTER-ZEITZ TRIAL JUDGE KELLER SHORTLY AFTER
9:30 A.M. JUNE 2  ...  LISTENED TO BUT DID NOT EXPRESS ANY OPINION
DURING A SIMILAR DISCUSSION. 

"HONORABLE HIRAM H. KELLER  ...  WHO PRESIDED  ...  THROUGHOUT THE
TRIAL, HAS CERTIFIED  ...  THAT AFTER THE MISCELLANEOUS BUSINESS WAS
COMPLETED, 'ON SEVERAL OCCASIONS  ...  JUDGE BOYER REMAINED FOR BRIEF
PERIODS WHILE EVIDENCE WAS PRESENTED  ...  ', AND THAT WITH THE
EXCEPTION OF THE INCIDENT NOTED ABOVE, 'AT NO OTHER TIME, DURING THE
COURSE OF THE TRIAL, DID JUDGE BOYER ASSIST, VOLUNTEER TO ASSIST, OR
MAKE ANY SUGGESTIONS TO OR OTHERWISE AID THE UNDERSIGNED IN THE TRIAL
OF THIS CASE.' 

"THE DISTRICT ATTORNEY  ...  TESTIFIED, AND WE FIND AS A FACT, THAT
JUDGE BOYER DID NOT AT ANY TIME DURING THE DARCY TRIAL ASSIST, ATTEMPT
TO ASSIST, MAKE ANY SUGGESTION TO OR IN ANY OTHER MANNER AID THE
COMMONWEALTH IN THE PROSECUTION OF THE CASE AGAINST DAVID DARCY; THAT
JUDGE BOYER DID NOT PASS ANY NOTE OR MESSAGE OF ANY KIND TO THE
DISTRICT ATTORNEY IN CONNECTION WITH THE TRIAL FOR THE USE OF THE
DISTRICT ATTORNEY OR JUDGE KELLER. 

"ON SEVERAL OCCASIONS DURING THE DARCY TRIAL - NOT ON FRIDAY EVENING
OR DURING THE CHARGE OF THE COURT ON MONDAY, JUNE 14 - JUDGE BOYER SAT
FOR BRIEF INTERVALS ON A CHAIR JUST INSIDE THE COURT ROOM DOOR FROM THE
JUDGES' CHAMBERS, APPARENTLY LISTENING TO THE PROCEEDINGS  ...  . 

"DURING THE DARCY TRIAL JUDGE BOYER DID NOT AT ANY TIME SIT AT OR
NEAR THE TABLE RESERVED FOR THE PRESS; AT OR NEAR THE TABLE RESERVED
FOR THE DISTRICT ATTORNEY; AT NO TIME DID JUDGE BOYER SIT ON A CHAIR
NEXT TO OR ANYWHERE NEAR A CHAIR OCCUPIED BY THE DISTRICT ATTORNEY. 

"THROUGHOUT THE TRIAL, THE ONLY CHAIRS OCCUPIED BY THE DISTRICT
ATTORNEY OR HIS ASSISTANT WERE AT THE TABLE RESERVED FOR THAT PURPOSE,
OR IN CHAIRS IMMEDIATELY IN FRONT OF THE TABLE RESERVED FOR THE PRESS. 

"AT NO TIME OTHER THAN THAT NOTED ABOVE DID JUDGE BOYER TAKE ANY
PART WHATSOEVER IN THE PROCEEDINGS OF THE DARCY TRIAL."  130 F. SUPP.,
AT 296-297. 

ON MONDAY, JUNE 14, PETITIONER'S CASE WENT TO THE JURY.  IT RETURNED
A VERDICT OF GUILTY AND FIXED THE PENALTY AT DEATH.  THE SUBSEQUENT
PROCEEDINGS IN THIS CASE, EXTENDING OVER EIGHT YEARS, ARE SUMMARIZED IN
THE MARGIN.  (FN5)  THOSE PROCEEDINGS UNIFORMLY SUSTAINED THE STATE,
BUT WE GRANTED CERTIORARI TO REVIEW THE CHARGE NOW MADE BY PETITIONER
THAT HE WAS DENIED DUE PROCESS.  350 U.S. 872. 

PETITIONER'S CHARGE IS THAT (A) THE NEWS COVERAGE OF THE ROBBERY AND
OF THE PROCEEDINGS PRIOR TO HIS TRIAL, INCLUDING THE FOSTER-ZEITZ TRIAL
AND JUDGE BOYER'S REPORTED REMARKS TO THE JURY IN THAT CASE, CREATED
SUCH AN ATMOSPHERE OF HYSTERIA AND PREJUDICE THAT IT PREVENTED HIM FROM
HAVING A FAIR TRIAL, (B) NOTWITHSTANDING THAT HE WAS GRANTED A
SEVERANCE, HE WAS FORCED TO GO TO TRIAL WITHIN ONE WEEK OF THE TRIAL OF
HIS COMPANIONS, FOSTER AND ZEITZ, AND (C) IN THE LIGHT OF (A) AND (B)
ABOVE, JUDGE BOYER'S PRESENCE AND PARTICIPATION IN PETITIONER'S TRIAL
PREVENTED HIM FROM BEING FAIRLY TRIED SINCE JUDGE BOYER, IN EFFECT,
ACTED AS AN "OVERSEER JUDGE" AND EFFECTIVELY GUIDED AND INFLUENCED
PETITIONER'S JURY. 

PETITIONER HAS BEEN GIVEN AMPLE OPPORTUNITY TO PROVE THAT HE HAS BEEN
DENIED DUE PROCESS OF LAW.  WHILE THIS COURT STANDS READY TO CORRECT
VIOLATIONS OF CONSTITUTIONAL RIGHTS, IT ALSO HOLDS THAT "IT IS NOT
ASKING TOO MUCH THAT THE BURDEN OF SHOWING ESSENTIAL UNFAIRNESS BE
SUSTAINED BY HIM WHO CLAIMS SUCH INJUSTICE AND SEEKS TO HAVE THE RESULT
SET ASIDE, AND THAT IT BE SUSTAINED NOT AS A MATTER OF SPECULATION BUT
AS A DEMONSTRABLE REALITY."  ADAMS V. UNITED STATES EX REL. MCCANN, 317
U.S. 269, 281.  SEE ALSO, BUCHALTER V. NEW YORK, 319 U.S. 427, 431;
STROBLE V. CALIFORNIA, 343 U.S. 181, 198.  JUSTICE HOLMES, SPEAKING FOR
A UNANIMOUS COURT IN HOLT V. UNITED STATES, 218 U.S. 245, 251,
CAUTIONED THAT "IF THE MERE OPPORTUNITY FOR PREJUDICE OR CORRUPTION IS
TO RAISE A PRESUMPTION THAT THEY EXIST, IT WILL BE HARD TO MAINTAIN
JURY TRIAL UNDER THE CONDITIONS OF THE PRESENT DAY." 

WE HAVE EXAMINED PETITIONER'S ALLEGATIONS, THE TESTIMONY AND
DOCUMENTARY EVIDENCE IN SUPPORT THEREOF, AND HIS ARGUMENTS.  WE
CONCLUDE THAT THE MOST THAT HAS BEEN SHOWN IS THAT, IN CERTAIN
RESPECTS, OPPORTUNITY FOR PREJUDICE EXISTED.  FROM THIS WE ARE ASKED TO
INFER THAT PETITIONER WAS PREJUDICED.  THE LAW RECOGNIZES THAT
PREJUDICE MAY INFECT ANY TRIAL AND PROVIDES PROTECTION AGAINST IT.  FOR
EXAMPLE, PROVISION IS MADE FOR THE VOIR DIRE EXAMINATION AND FOR
CHALLENGES OF JURORS WHO INDICATE THAT THEY MAY BE PREJUDICED.  IN
ADDITION, A SUBSTANTIAL NUMBER OF PEREMPTORY CHALLENGES IS ALLOWED. 
THIS GIVES TO EACH PARTY A LARGE DISCRETION TO EXCLUDE JURORS DEEMED
OBJECTIONABLE FOR ANY REASON OR NO REASON.  ANOTHER PROTECTION IS
AVAILABLE THROUGH THE SEVERANCE OF THE TRIALS OF THE DEFENDANTS AND
THROUGH CONTINUANCES OF THE RESPECTIVE TRIALS.  STILL ANOTHER MEANS OF
PROTECTION IS THAT OF A CHANGE OF VENUE FOR PROPER CAUSE.    IN THE
INSTANT CASE, NOTWITHSTANDING THE FACT THAT COMPETENT COUNSEL FOR
PETITIONER DID NOT USE ALL OF HIS PEREMPTORY CHALLENGES AFTER A
SEARCHING EXAMINATION OF PROSPECTIVE JURORS ON VOIR DIRE, AND DID NOT
SEEK A CONTINUANCE OF THE TRIAL OR A CHANGE OF VENUE, PETITIONER ASKS
THIS COURT, IN EFFECT, TO INFER THAT THE NEWS COVERAGE OF THE ROBBERY
AND PROCEEDINGS PRIOR TO PETITIONER'S TRIAL, INCLUDING THE FOSTER-ZEITZ
TRIAL, CREATED SUCH AN ATMOSPHERE OF PREJUDICE AND HYSTERIA THAT IT WAS
IMPOSSIBLE TO DRAW A FAIR AND IMPARTIAL JURY FROM THE COMMUNITY OR TO
HOLD A FAIR TRIAL.  THE FAILURE OF PETITIONER'S COUNSEL TO EXHAUST THE
MEANS PROVIDED TO PREVENT THE DRAWING OF AN UNFAIR TRIAL JURY FROM A
COMMUNITY ALLEGEDLY INFECTED WITH HYSTERIA AND PREJUDICE AGAINST
PETITIONER, WHILE NOT DISPOSITIVE, IS SIGNIFICANT.  (FN6)  HERE, THE
ISSUE WAS NOT RAISED UNTIL ALMOST THREE YEARS AFTER THE TRIAL, YET WE
ARE ASKED TO READ THE NEWS REPORTS AND THE TESTIMONY AS TO OTHER
INCIDENTS AND TO FIND, CONTRARY TO THE SUPREME COURT OF PENNSYLVANIA
AND TWO FEDERAL COURTS, THAT THESE REPORTS AND INCIDENTS DID CREATE
SUCH AN ATMOSPHERE THAT IT INFECTED THE JURORS AND DEPRIVED PETITIONER
OF A FAIR TRIAL ON THE EVIDENCE PRESENTED TO THEM.  WE SEE NO
JUSTIFICATION IN THE RECORD TO WARRANT OUR SO FINDING. 

ON THE OTHER HAND, THE FEDERAL DISTRICT COURT, FAMILIAR WITH THE
LOCAL CONDITIONS, HAS FOUND, ON THE EVIDENCE BEFORE IT, THAT
PETITIONER'S TRIAL WAS CONDUCTED IN A CALM JUDICIAL MANNER, WITHOUT ANY
DISTURBANCES, AND THAT THE NEWS COVERAGE WAS "FACTUAL, WITH AN
OCCASIONAL DESCRIPTIVE WORD OR PHRASE, AND, ON OCCASION, WORDS OF
COMPASSION OR COMMENDATION."  130 F. SUPP., AT 286.  IT HAS FOUND THAT
COUNSEL FOR PETITIONER CONDUCTED A THOROUGH VOIR DIRE EXAMINATION.  IN
ALL, 49 PERSONS WERE CHALLENGED FOR CAUSE OR EXCUSED - 14 FOR FIXED
OPINION OR BIAS.  PETITIONER USED 10 OF THE 20 PEREMPTORY CHALLENGES
ALLOWED HIM, THE COMMONWEALTH ONLY EIGHT.  THE RECORD SHOWS THAT
COUNSEL FOR PETITIONER WAS INFORMED ALMOST THREE MONTHS BEFORE
PETITIONER'S TRIAL THAT PETITIONER WOULD BE TRIED IMMEDIATELY AFTER
FOSTER AND ZEITZ, BUT HE MADE NO MOTION FOR A CONTINUANCE (FN7) OR FOR
A CHANGE OF VENUE.  OF THE PROSPECTIVE JURORS CALLED FOR SERVICE AT
PETITIONER'S TRIAL, ONLY ONE WAS FOUND TO HAVE ATTENDED THE FOSTER
ZEITZ TRIAL AND THAT PERSON WAS CHALLENGED FOR CAUSE.  THERE IS NOTHING
IN THE RECORD TO SHOW, AS A "DEMONSTRABLE REALITY," THAT PETITIONER WAS
DENIED DUE PROCESS OF LAW BECAUSE OF COMMUNITY HYSTERIA AND PREJUDICE. 
THE DISTRICT COURT'S FINDINGS, SUSTAINED BY THE COURT OF APPEALS AND
SUPPORTED BY THE RECORD, DISPOSE OF THIS ASPECT OF THE CASE. 

NOR DO WE CONCLUDE THAT PETITIONER WAS PREVENTED FROM OBTAINING A
FAIR JURY TRIAL BY REASON OF JUDGE BOYER'S COMMENDATORY REMARKS TO THE
FOSTER-ZEITZ TRIAL JURY, REPORTED IN THE LOCAL PRESS TWO DAYS BEFORE
PETITIONER'S TRIAL.  AT MOST, PETITIONER HAS SHOWN THAT THIS CREATED A
POSSIBLE OPPORTUNITY FOR PREJUDICE.  THERE IS NO MERIT IN PETITIONER'S
CLAIM THAT HE WAS "FORCED" TO TRIAL IMMEDIATELY AFTER THE FOSTER-ZEITZ
TRIAL OR IN HIS CLAIM THAT THE TRIAL JUDGE SHOULD HAVE, SUA SPONTE,
CHANGED THE VENUE OR CONTINUED THE TRIAL.  SEE 130 F. SUPP., AT 292
295. 

PETITIONER'S REMAINING CLAIM RESTS LARGELY UPON FACTS WHICH THE
DISTRICT COURT HAS FOUND AGAINST HIM.  PETITIONER ALLEGES THAT, DURING
THE CHARGE TO THE JURY, JUDGE BOYER PASSED A NOTE TO THE DISTRICT
ATTORNEY, WHO IMMEDIATELY INTERPOSED AN OBJECTION TO JUDGE KELLER'S
CHARGE, AND THE LATTER ALLEGEDLY CORRECTED HIMSELF.  PETITIONER ARGUES
THAT THE TESTIMONY OF THE DISTRICT ATTORNEY AND HIS ASSISTANT THAT THEY
HAD NO RECOLLECTION OF SUCH AN INCIDENT IS INSUFFICIENT TO OFFSET THE
DIRECT TESTIMONY OF PETITIONER'S WITNESSES THAT THE INCIDENT DID OCCUR,
THAT JUDGE BOYER DID SIT AT THE TABLE RESERVED FOR THE PRESS, AND THAT
THE DISTRICT ATTORNEY AND HIS ASSISTANT SAT IMMEDIATELY IN FRONT OF
JUDGE BOYER.  THE ISSUE THUS RAISED IS LARGELY ONE OF CREDIBILITY TO BE
DETERMINED BY THE TRIER OF THE FACTS.  HAWK V. OLSON, 326 U.S. 271,
279.  THE DISTRICT COURT'S POSITIVE FINDINGS ON THIS ASPECT OF THE CASE
(AT 458-460, SUPRA) FIND SUPPORT IN THE RECORD.  WE ARE NOT JUSTIFIED
IN UPSETTING THEM. 

WE ALSO ARE ASKED TO FIND THAT THE PRESENCE OF JUDGE BOYER ON THE
BENCH AT THE BEGINNING OF EACH SESSION OF THE COURT, HIS REMAINING ON
THE BENCH AFTER THE MISCELLANEOUS BUSINESS WAS DISPOSED OF, AND HIS
PRESENCE THEREAFTER IN THE COURTROOM CREATED SUCH A PREJUDICIAL EFFECT
UPON THE JURY THAT IT BECAME IMPOSSIBLE FOR IT TO RETURN A FAIR VERDICT
AND PENALTY.  EXCEPT FOR THE ONE INCIDENT WHERE JUDGE BOYER
PARTICIPATED IN A SIDEBAR CONFERENCE OUT OF THE HEARING OF THE JURY,
(FN8) THE DISTRICT COURT FOUND THAT HE DID NOT PARTICIPATE IN
PETITIONER'S TRIAL.  PETITIONER'S COUNSEL OBJECTED TO JUDGE BOYER'S
PARTICIPATION IN THE SIDEBAR CONFERENCE (FN9) AND HE LEFT THE BENCH
SHORTLY THEREAFTER. 

PETITIONER MAKES MUCH OF THE FACT THAT THE MAJORITY OPINION OF THE
COURT OF APPEALS STATES THAT JUDGE BOYER'S CONDUCT SHOWED A "STRIKING
MANIFESTATION OF EXTRAORDINARY INTEREST IN THE PROCEEDINGS," AND THAT
THE JURY KNEW WHO HE WAS AND IT WAS "VERY PROBABLE" THEY KNEW THAT HE
HAD JUST COMPLETED THE FOSTER-ZEITZ TRIAL.  224 F.2D, AT 508.  WE AGREE
WITH THE COURT OF APPEALS THAT PETITIONER ATTACHES TOO MUCH
SIGNIFICANCE TO JUDGE BOYER'S CONDUCT.  JUDGE BOYER'S PRESENCE ON THE
BENCH, PARTICULARLY IN THE LIGHT OF THE LONG-ESTABLISHED PRACTICE FOR
BOTH JUDGES TO SIT ON THE BENCH AT THE BEGINNING OF EACH SESSION TO
DISPOSE OF MISCELLANEOUS BUSINESS, DID NOT AMOUNT TO A DENIAL OF DUE
PROCESS.  NOR DID HIS SUBSEQUENT PRESENCE ON THE BENCH OR IN THE
COURTROOM MAKE OUT A DENIAL OF DUE PROCESS.  UNDER THE CASES CITED
EARLIER, (FN10) PETITIONER MUST SHOW THAT HE WAS PREJUDICED IN SOME WAY
BY THE JUDGE'S PRESENCE.  ASIDE FROM THE SIDEBAR CONFERENCE AND THE
CONTESTED NOTE-PASSING INCIDENT, PETITIONER RELIES UPON JUDGE BOYER'S
STATEMENT TO THE FOSTER-ZEITZ JURY AND HIS SUBSEQUENT REMARKS MADE ON
JUNE 11, IN ANOTHER CASE, IN SENTENCING ANOTHER PHILADELPHIA YOUTH, TO
SHOW THAT JUDGE BOYER WAS "HOSTILE" TO PETITIONER AND THAT THE JURY
RECOGNIZED SUCH HOSTILITY.  BUT THE REMARKS ON JUNE 11 COULD NOT HAVE
PREJUDICED PETITIONER'S JURY SINCE THAT JURY HAD NO ACCESS TO ANY
SOURCE OF NEWS THAT REPORTED THE INCIDENT.  PETITIONER, THUS, IS LEFT
WITH JUDGE BOYER'S COMMENDATORY REMARK TO THE FOSTER-ZEITZ TRIAL JURY. 
THIS, READ IN ITS PROPER CONTEXT AND EXAMINED IN THE LIGHT OF JUDGE
KELLER'S REMARKS MADE TO THE REMAINDER OF THE JURY PANEL, DOES NOT
RAISE A SUBSTANTIAL DUE PROCESS QUESTION.  PETITIONER SEEKS TO HAVE
THIS COURT SPECULATE THAT THE JURORS KNEW THAT JUDGE BOYER HAD MADE
THIS STATEMENT AND THAT THEY WERE PREJUDICED BY IT OR BY JUDGE BOYER'S
PRESENCE.  WE CAN NO MORE SPECULATE ON THIS ASPECT OF THE CASE THAN ON
THE OTHERS.  PETITIONER'S COUNSEL MUST HAVE BEEN AWARE OF JUDGE BOYER'S
STATEMENT AND OF ITS POSSIBLE EFFECT, IF ANY, ON THE JURY, AND THE
POSSIBLE EFFECT OF JUDGE BOYER'S MANIFESTATION OF INTEREST.  HOWEVER,
HE TOOK NO ACTION TO PREVENT THIS POSSIBILITY FROM INFECTING
PETITIONER'S TRIAL.  ACCORDINGLY, WE MAY AS WELL SPECULATE THAT HE DID
NOT DEEM IT NECESSARY TO TAKE ANY SUCH ACTION BECAUSE THE POSSIBILITY
OF PREJUDICE WAS TOO REMOTE TO JUSTIFY IT.  IT IS NOT NECESSARY FOR
THIS COURT TO ENTER INTO SUCH SPECULATIONS.  PETITIONER HAS NOT
SUSTAINED THE BURDEN RESTING UPON HIM TO SHOW THAT HIS TRIAL WAS
ESSENTIALLY UNFAIR IN A CONSTITUTIONAL SENSE AND THAT THE SEVERAL
COURTS WHICH HAVE REVIEWED IT ARE ALL IN ERROR.  THE JUDGMENT OF THE
COURT OF APPEALS, THEREFORE, IS AFFIRMED. 

FN1  THIS STATEMENT OF FACTS AND REVIEW OF THE RELEVANT PROCEDURAL
STEPS IN THE CASE ARE TAKEN LARGELY FROM THE OPINION RENDERED IN THE
INSTANT CASE BY THE TWO JUDGES CONSTITUTING THE UNITED STATES DISTRICT
COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.  130 F. SUPP.  270. 
THEY CONDUCTED A FULL HEARING ON THE PETITION FOR HABEAS CORPUS.  IT
LASTED EIGHT DAYS.  MORE THAN 30 WITNESSES TESTIFIED AND MUCH
DOCUMENTARY EVIDENCE WAS INTRODUCED. 

FN2  130 F. SUPP., AT 283-285, N. 39-42. 

FN3  130 F. SUPP., AT 285-289, N. 43-47. 

FN4  PURDON'S PA. STAT. ANN., 1945, TIT. 18, SEC. 4701. 

FN5  MOTION FOR NEW TRIAL, DENIED; APPEAL TO THE PENNSYLVANIA SUPREME
COURT, CONVICTION AFFIRMED, 362 PA. 259, 66 A.2D 663; PETITION FOR
HABEAS CORPUS TO THE PENNSYLVANIA SUPREME COURT, DENIED, WITHOUT
OPINION; PETITION FOR CERTIORARI TO REVIEW THOSE JUDGMENTS, DENIED, 338
U.S. 862; APPLICATIONS TO THE PENNSYLVANIA BOARD OF PARDONS FOR
COMMUTATION OF SENTENCE, DENIED; SECOND PETITION FOR HABEAS CORPUS TO
THE PENNSYLVANIA SUPREME COURT FILED APRIL 2, 1951, RASIING FOR THE
FIRST TIME THE CONSTITUTIONAL QUESTIONS NOW BEFORE US; ON THE SAME DAY,
A SIMILAR PETITION FOR HABEAS CORPUS FILED IN THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA; SECOND PETITION
FOR HABEAS CORPUS TO THE PENNSYLVANIA SUPREME COURT, DENIED, 367 PA.
130, 79 A.2D 785 (AFTER PASSING ON THE MERITS OF THE PETITION);
PETITION TO THE UNITED STATES DISTRICT COURT, DISMISSED, 97 F. SUPP.
930; PETITION FOR CERTIORARI TO REVIEW THE PENNSYLVANIA SUPREME COURT'S
DENIAL OF THE WRIT OF HABEAS CORPUS, DENIED, 342 U.S. 837; APPEAL TO
THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT FROM THE
DISTRICT COURT'S DISMISSAL OF THE PETITION FOR HABEAS CORPUS, HEARD EN
BANC, REVERSED BY A DIVIDED COURT AND REMANDED FOR HEARING, 203 F.2D
407; AFTER REHEARING DENIED BY THE THIRD CIRCUIT, THE STATE SOUGHT
CERTIORARI IN THIS COURT, DENIED, 346 U.S. 865; AFTER HEARING BEFORE
CHIEF JUDGE WATSON AND DISTRICT JUDGE MURPHY, OF THE DISTRICT COURT,
PETITION FOR HABEAS CORPUS DENIED, 130 F. SUPP. 270; ON APPEAL TO THE
THIRD CIRCUIT, HEARD EN BANC, THE DISTRICT COURT'S JUDGMENT WAS
AFFIRMED, 4-3, 224 F.2D 504.  THROUGHOUT THESE PROCEEDINGS, PETITIONER
HAS BEEN REPRESENTED BY COMPETENT COUNSEL. 

FN6  SEE STROBLE V. CALIFORNIA, 343 U.S. 181, 193-194. 

FN7  COUNSEL FOR CAPONE SOUGHT AND WAS GRANTED A CONTINUANCE ON MAY
17, 1948, ONE WEEK PRIOR TO THE FOSTER-ZEITZ TRIAL. 

FN8  THE RULING MADE FOLLOWING THIS INCIDENT WAS IN FAVOR OF
PETITIONER, SINCE THE STATEMENTS OF PRIOR OFFENSES THEN BEFORE THE
COURT WERE ADMITTED FOR A PURPOSE MORE LIMITED THAN THE PENNSYLVANIA
SUPREME COURT APPROVED ON APPEAL.  SEE PENNSYLVANIA V. DARCY, 362 PA.
259, 283, 66 A.2D 663, 675. 

FN9  THE GROUND FOR THIS OBJECTION WAS THAT JUDGE BOYER HAD
"DISQUALIFIED HIMSELF FROM SITTING IN ON THIS CASE, AND IT IS
PREJUDICIAL TO THE DEFENDANT (PETITIONER)."  SEE 130 F. SUPP., AT 296,
N. 54. 

FN10  SEE CASES CITED AT 462, SUPRA. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

I WOULD REVERSE THE JUDGMENT BELOW ON THE BASIS OF JUDGE BOYER'S
CONDUCT.  THE CENTRAL FACTS AGAINST WHICH THIS CONDUCT MUST BE VIEWED
ARE THAT:  (1) ZEITZ, NOT PETITIONER, DID THE ACTUAL KILLING ON WHICH
PETITIONER'S TRIAL WAS BASED, AND (2) PETITIONER'S PARTICIPATION IN THE
ROBBERY BEING UNCONTESTED, THE ONLY REAL ISSUE AT HIS TRIAL WAS WHETHER
HE SHOULD SUFFER THE DEATH PENALTY OR LIFE IMPRISONMENT, WHICH, UNDER
THE PENNSYLVANIA STATUTE, WAS A QUESTION FOR THE JURY.  IF THESE FACTS
BE KEPT IN MIND, I THINK THAT THE COURT, IN HOLDING THAT THE CASE
PRESENTS NO VIOLATION OF DUE PROCESS, HAS DISPOSED OF JUDGE BOYER'S
CONDUCT TOO LIGHTLY. 

THE COURT STATES THAT THE GENERAL ATMOSPHERE OF THE TRIAL WAS NOT
PREJUDICIAL, THAT JUDGE BOYER'S REMARKS TO THE FOSTER-ZEITZ JURY RAISE
NO SUBSTANTIAL DUE PROCESS QUESTIONS, AND THAT WE SHOULD NOT DISTURB
THE DISTRICT COURT'S FINDINGS THAT THE ALLEGED NOTE-PASSING INCIDENT
DID NOT OCCUR AND THAT JUDGE BOYER'S PARTICIPATION IN THE TRIAL WAS
LIMITED TO THE "SIDEBAR" EPISODE.  ACCEPTING THIS, AS I DO, IT DOES NOT
END THE MATTER FOR ME, FOR THERE STILL REMAIN THESE UNDISPUTED FACTS,
AND THE INFERENCES WHICH I THINK SHOULD BE DRAWN FROM THEM:  THE CRIME
WAS A PARTICULARLY ATROCIOUS ONE, AND JUDGE BOYER SHARED THE COMMUNITY
SENSE OF OUTRAGE OVER IT.  (FN1)  THE TRIAL TOOK PLACE IN A SMALL RURAL
COMMUNITY OF WHICH JUDGE BOYER HAD BEEN A RESPECTED MEMBER FOR MANY
YEARS, AND HE WAS PRESUMABLY KNOWN TO THE JURORS, AT LEAST BY
REPUTATION.  JUDGE BOYER, AS IT IS FAIR TO ASSUME THE JURORS KNEW, HAD
PRESIDED OVER THE FOSTER-ZEITZ TRIAL IN WHICH THE JURY, THREE DAYS
BEFORE PETITIONER'S TRIAL BEGAN, HAD RETURNED A DEATH VERDICT AGAINST
TWO OF PETITIONER'S ASSOCIATES IN THIS CRIME.  (FN2)  JUDGE BOYER
REMAINED IN THE COURTROOM AT PETITIONER'S TRIAL BEYOND THE CALL OF
DUTY, AND HIS PRESENCE THERE ON SOME DAYS AFTER OTHER MATTERS HAD BEEN
DISPOSED OF WAS WHOLLY UNEXPLAINED.  ON SUCH OCCASIONS HE SAT NOT WITH
THE ORDINARY SPECTATORS, BUT SOMETIMES ON THE BENCH AND OTHER TIMES
WITHIN THE BAR IN FULL VIEW OF THE JURY.  THE "SIDEBAR" CONFERENCE, IN
WHICH JUDGE BOYER PARTICIPATED, WAS IN SIGHT OF THE JURY.  JUDGE BOYER
WAS IN THE COURTROOM DURING THE COURT'S CHARGE.  FROM THESE ADMITTED
FACTS, I CONSIDER THAT THE JURY MUST HAVE BEEN CONSCIOUS OF THE UNUSUAL
INTEREST WHICH JUDGE BOYER HAD IN THE CASE, AND THAT IT MIGHT WELL HAVE
CONCLUDED THAT HE FELT THE DEFENDANT SHOULD BE DEALT WITH SEVERELY. 

HAVING REGARD TO THE CHARACTER OF THE ISSUE WITH WHICH THE JURY WAS
CONFRONTED, I THINK THESE UNDISPUTED FACTS, AND THE INFERENCES WHICH
MAY BE DRAWN FROM THEM, REQUIRE US TO HOLD THAT THE PETITIONER HAS BEEN
DENIED DUE PROCESS.  I CANNOT SAY THAT THE SUPPORT LENT TO THE
PROSECUTION BY JUDGE BOYER'S MANIFEST INTEREST IN THE TRIAL MIGHT NOT
HAVE TIPPED THE SCALES WITH THE JURY IN FAVOR OF A DEATH VERDICT, AND
IN A CAPITAL CASE I WOULD RESOLVE THAT DOUBT IN FAVOR OF A NEW TRIAL. 
THE REASONS FOR MY CONCLUSION ARE THOSE WHICH JUDGE KALODNER HAS WELL
STATED IN HIS DISSENTING OPINION IN THE COURT OF APPEALS, 224 F.2D
504.  509.  WE SHOULD BE ESPECIALLY SCRUPULOUS IN SEEING TO IT THAT THE
RIGHT TO A FAIR TRIAL HAS NOT BEEN JEOPARDIZED BY THE CONDUCT OF A
MEMBER OF THE JUDICIARY.    FN1  IN IMPOSING SENTENCE IN A CASE TRIED
DURING PETITIONER'S TRIAL, JUDGE BOYER SAID (AS REPORTED BY A LOCAL
NEWSPAPER THE NEXT DAY): 

"WE DON'T PROPOSE TO NAIL ALL OUR PROPERTY FAST HERE IN BUCKS COUNTY
JUST BECAUSE THIEVES FROM PHILADELPHIA WANT TO PICK UP EVERYTHING WHICH
ISN'T BEING WATCHED  ...  .  WHAT BUSINESS DID YOU HAVE TO COME UP HERE
IN THE FIRST PLACE?  ...  HAVE YOU HEARD WHAT'S GOING ON DOWNSTAIRS
(REFERRING TO PETITIONER'S TRIAL)?  ...  DO YOU WANT TO WIND UP LIKE
THAT?  ...  WE IN BUCKS COUNTY ARE TIRED OF YOU PHILADELPHIANS WHO
DON'T KNOW HOW TO BEHAVE.  WE HAVE TO BEAR THE EXPENSE AND WE PROPOSE
TO STOP IT." 

SINCE PETITIONER'S JURY HAD NO ACCESS TO THIS NEWSPAPER, THESE
STATEMENTS COULD NOT HAVE AFFECTED HIS TRIAL.  BUT THEY ARE INDICATIVE
OF JUDGE BOYER'S SENTIMENTS, AND OF COMMUNITY REACTION. 

FN2  THE LOCAL NEWSPAPER REPORTED THE FOLLOWING ON THE DAY AFTER THE
FOSTER-ZEITZ TRIAL ENDED: 

"JUDGE BOYER PRAISES JURY FOR VERDICT CONDEMNING 2 KILLERS TO
ELECTRIC CHAIR. 

     *         *         *         *         * 

"I DON'T SEE HOW YOU COULD, UNDER THE EVIDENCE, HAVE REACHED ANY
OTHER VERDICT,' JUDGE BOYER SAID. 

"'YOUR VERDICT MAY HAVE A VERY WHOLESOME EFFECT ON OTHER YOUNG MEN IN
ALL VICINITIES WHO MAY COME TO REALIZE THE SERIOUSNESS OF THE FOLLY IN
WHICH SO MANY YOUNG MEN INDULGE THESE DAYS. 

"'THE ONLY HOPE OF STEMMING THE TIDE OF SUCH CRIME BY YOUTH IS TO
ENFORCE THE LAW WHICH YOU HAVE INDICATED BY YOUR DECISION,' JUDGE BOYER
SAID. 
..END :
























KINSELLA V. KRUEGER 351 U.S. 470 


NO. 713.  ARGUED MAY 3, 1956 - DECIDED JUNE 11, 1956 - 137 F. SUPP. 806,
AFFIRMED. 


PURSUANT TO ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE, A
DEPENDENT WIFE OF AN OFFICER OF THE UNITED STATES ARMY RESIDING IN
QUARTERS PROVIDED BY THE ARMY IN JAPAN, WHERE HER HUSBAND WAS
STATIONED, WAS TRIED AND CONVICTED BY A COURT-MARTIAL IN JAPAN FOR THE
MURDER OF HER HUSBAND THERE.  SHE WAS SENTENCED TO LIFE IMPRISONMENT
AND BROUGHT TO A FEDERAL PRISON IN THE UNITED STATES, WHERE SHE BROUGHT
THIS HABEAS CORPUS PROCEEDING.  HELD:  ARTICLE 2(11) OF THE UNIFORM
CODE OF MILITARY JUSTICE IS CONSTITUTIONAL.  PP. 471-480. 

(A)  A CIVILIAN DEPENDENT OF AN AMERICAN SERVICEMAN AUTHORIZED TO
ACCOMPANY HIM ON FOREIGN DUTY MAY CONSTITUTIONALLY BE TRIED BY AN
AMERICAN MILITARY COURT-MARTIAL IN A FOREIGN COUNTRY FOR AN OFFENSE
COMMITTED THERE.  PP. 474-480. 

(B)  THE CONSTITUTION DOES NOT REQUIRE TRIAL IN A FOREIGN COUNTRY
BEFORE A COURT CONFORMING TO ARTICLE III FOR OFFENSES COMMITTED THERE
BY AN AMERICAN CITIZEN, AND CONGRESS MAY ESTABLISH LEGISLATIVE COURTS
FOR THAT PURPOSE.  PP. 474-476. 

(C)  IN THE CIRCUMSTANCES OF THIS CASE, IT WAS REASONABLE AND
CONSONANT WITH DUE PROCESS FOR CONGRESS TO EMPLOY THE EXISTING SYSTEM
OF COURTS-MARTIAL FOR THIS PURPOSE.  PP. 476-480. 

(D)  THERE IS NO CONSTITUTIONAL DEFECT IN THE FACT THAT THE UNIFORM
CODE OF MILITARY JUSTICE DOES NOT PROVIDE FOR INDICTMENT BY GRAND JURY
OR TRIAL BY A PETIT JURY, SINCE IN THESE RESPECTS IT DOES NOT DIFFER
FROM THE PROCEDURES SPECIFICALLY APPROVED BY THIS COURT IN OTHER TYPES
OF LEGISLATIVE COURTS ESTABLISHED ABROAD BY CONGRESS.  P. 479. 

KINSELLA, WARDEN, V. KRUEGER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

CONGRESS, IN ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE,
HAS PROVIDED THAT ALL PERSONS "ACCOMPANYING THE ARMED FORCES WITHOUT
THE CONTINENTAL LIMITS OF THE UNITED STATES" AND CERTAIN NAMED
TERRITORIES SHALL BE SUBJECT TO THE CODE IF SUCH JURISDICTION IS
AUTHORIZED UNDER "ANY TREATY OR AGREEMENT TO WHICH THE UNITED STATES IS
OR MAY BE A PARTY OR TO ANY ACCEPTED RULE OF INTERNATIONAL LAW."  50
U.S.C. SEC. 552.  PURSUANT TO THIS ARTICLE AND A SUBSEQUENT AGREEMENT
BETWEEN THE UNITED STATES AND JAPAN, (FN1) MRS. DOROTHY KRUEGER SMITH
WAS TRIED BY A GENERAL COURT-MARTIAL IN TOKYO, JAPAN, FOR THE
PREMEDITATED MURDER OF HER HUSBAND, A COLONEL IN THE UNITED STATES
ARMY.  SHE WAS FOUND GUILTY AND SENTENCED TO LIFE IMPRISONMENT.  10
C.M.R. 350.  HER CONVICTION WAS AFFIRMED BY THE BOARD OF REVIEW, 17
C.M.R. 314, AND THE COURT OF MILITARY APPEALS, 5 U.S.C.M.A.  314, AND
SHE BEGAN SERVING HER SENTENCE IN THE FEDERAL REFORMATORY FOR WOMEN,
ALDERSON, WEST VIRGINIA. 

THEREAFTER, A PETITION FOR A WRIT OF HABEAS CORPUS WAS FILED ON MRS.
SMITH'S BEHALF BY HER FATHER, RESPONDENT HEREIN.  THE PETITION ALLEGED
THAT THE COURT-MARTIAL HAD NO JURISDICTION TO TRY MRS. SMITH BECAUSE
ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE VIOLATES BOTH
ART. III, SEC. 2, AND AMENDMENT VI OF THE FEDERAL CONSTITUTION, WHICH
GUARANTEE THE RIGHT TO TRIAL BY JURY TO A CIVILIAN.  THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA ISSUED A
PRELIMINARY WRIT.  AFTER A HEARING, WHICH INCLUDED THE SUBMISSION OF
BRIEFS AND UNLIMITED ORAL ARGUMENT, THE WRIT WAS DISCHARGED AND MRS.
SMITH WAS REMANDED TO THE CUSTODY OF THE WARDEN.  137 F. SUPP. 806.  IN
ORDER TO EXPEDITE THE DETERMINATION OF THE CASE, THE GOVERNMENT ITSELF
SOUGHT CERTIORARI WHILE AN APPEAL WAS PENDING BEFORE THE COURT OF
APPEALS FOR THE FOURTH CIRCUIT.  WE GRANTED REVIEW ON MARCH 12, 1956,
350 U.S. 986, BECAUSE OF THE SERIOUS CONSTITUTIONAL QUESTION PRESENTED
AND ITS FAR-REACHING IMPORTANCE TO OUR ARMED FORCES STATIONED IN SOME
SIXTY-THREE DIFFERENT COUNTRIES THROUGHOUT THE WORLD.  WE AGREE WITH
THE DECISION OF THE DISTRICT COURT. 

IN ITS ENTIRETY, ART. 2(11), 50 U.S.C. SEC. 552, PROVIDES THAT: 

"THE FOLLOWING PERSONS ARE SUBJECT TO THIS CHAPTER: 

     *         *         *     *         * 

"(11)  SUBJECT TO THE PROVISIONS OF ANY TREATY OR AGREEMENT TO WHICH
THE UNITED STATES IS OR MAY BE A PARTY OR TO ANY ACCEPTED RULE OF
INTERNATIONAL LAW, ALL PERSONS SERVING WITH, EMPLOYED BY, OR
ACCOMPANYING THE ARMED FORCES WITHOUT THE CONTINENTAL LIMITS OF THE
UNITED STATES AND WITHOUT THE FOLLOWING TERRITORIES:  THAT PART OF
ALASKA EAST OF LONGITUDE ONE HUNDRED AND SEVENTY-TWO DEGREES WEST, THE
CANAL ZONE, THE MAIN GROUP OF THE HAWAIIAN ISLANDS, PUERTO RICO, AND
THE VIRGIN ISLANDS ...  ." 

MRS. SMITH COMES SQUARELY WITHIN THE TERMS OF THIS PROVISION.  AS A
MILITARY DEPENDENT, SHE HAD ACCOMPANIED HER HUSBAND BEYOND THE
CONTINENTAL LIMITS OF THE UNITED STATES.  PRIOR TO HER HUSBAND'S DEATH
THEY LIVED TOGETHER IN WASHINGTON HEIGHTS, AN AMERICAN COMMUNITY IN
TOKYO COMPOSED EXCLUSIVELY OF AMERICAN SERVICEMEN AND THEIR
DEPENDENTS.  JAPAN, AT THE TIME OF THE OFFENSE, HAD CEDED TO THE UNITED
STATES "EXCLUSIVE JURISDICTION OVER ALL OFFENSES WHICH MAY BE COMMITTED
IN JAPAN BY MEMBERS OF THE UNITED STATES ARMED FORCES, THE CIVILIAN
COMPONENT, AND THEIR DEPENDENTS  ...  ."  ART. XVII, 3 UST (PART 3)
3354.  SINCE ARTICLE 2(11) CONCEDEDLY APPLIES TO THIS CASE IF IT WAS
WITHIN THE POWER OF CONGRESS TO ENACT, THE CONSTITUTIONALITY OF THAT
PROVISION IS THE SOLE QUESTION PRESENTED.  ESSENTIALLY, WE ARE TO
DETERMINE ONLY WHETHER THE CIVILIAN DEPENDENT OF AN AMERICAN SERVICEMAN
AUTHORIZED TO ACCOMPANY HIM ON FOREIGN DUTY MAY CONSTITUTIONALLY BE
TRIED BY AN AMERICAN MILITARY COURT-MARTIAL IN A FOREIGN COUNTRY FOR AN
OFFENSE COMMITTED IN THAT COUNTRY. 

TRIALS BY COURT-MARTIAL ARE GOVERNED BY THE UNIFORM CODE OF MILITARY
JUSTICE, 64 STAT.  109, 50 U.S.C. SEC. 551 ET SEQ. THE CODE WAS
CAREFULLY DRAWN BY CONGRESS TO INCLUDE THE FUNDAMENTAL GUARANTEES OF
DUE PROCESS, AND IN OPERATION IT HAS PROVIDED A FAIR AND ENLIGHTENED
SYSTEM OF JUSTICE.  HOWEVER, COURTS-MARTIAL ARE NOT REQUIRED TO PROVIDE
ALL THE PROTECTIONS OF CONSTITUTIONAL COURTS; THEREFORE, TO TRY BY
COURT-MARTIAL A CIVILIAN ENTITLED TO TRIAL IN AN ARTICLE III COURT IS A
VIOLATION OF THE CONSTITUTION.  TOTH V. QUARLES, 350 U.S. 11. 
ACCORDINGLY, OUR FIRST INQUIRY IS DIRECTED TO THE QUESTION WHETHER, AS
A MATTER OF CONSTITUTIONAL RIGHT, AN AMERICAN CITIZEN OUTSIDE OF THE
CONTINENTAL LIMITS OF THE UNITED STATES AND IN A FOREIGN COUNTRY IS
ENTITLED TO TRIAL BEFORE AN ARTICLE III COURT FOR AN OFFENSE COMMITTED
IN THAT COUNTRY. 

IN MAKING THIS DETERMINATION, WE ARE NOT FACED WITH THE QUESTION
"WHETHER THE CONSTITUTION IS OPERATIVE, FOR THAT IS SELF-EVIDENT, BUT
WHETHER THE PROVISION RELIED ON IS APPLICABLE."  (FN2) ENTIRELY ASIDE
FROM THE POWER OF CONGRESS UNDER ARTICLE III OF THE CONSTITUTION, IT
HAS BEEN WELL-ESTABLISHED SINCE CHIEF JUSTICE MARSHALL'S OPINION IN
AMERICAN INSURANCE CO. V. CANTER, 1 PET. 511, THAT CONGRESS MAY
ESTABLISH LEGISLATIVE COURTS OUTSIDE THE TERRITORIAL LIMITS OF THE
UNITED STATES PROPER.  THE PROCEDURE IN SUCH TRIBUNALS NEED NOT COMPLY
WITH THE STANDARDS PRESCRIBED BY THE CONSTITUTION FOR ARTICLE III
COURTS.  IN CASES ARISING FROM HAWAII, (FN3) THE PHILIPPINES, (FN4) AND
PUERTO RICO, (FN5) THIS COURT HAS RECOGNIZED THE POWER OF CONGRESS TO
ENACT A SYSTEM OF LAWS WHICH DID NOT PROVIDE FOR TRIAL BY JURY.  BY
1922 IT WAS REGARDED AS "CLEARLY SETTLED" THAT THE JURY PROVISIONS OF
ARTICLE III AND THE SIXTH AND SEVENTH AMENDMENTS "DO NOT APPLY TO
TERRITORY BELONGING TO THE UNITED STATES WHICH HAS NOT BEEN
INCORPORATED INTO THE UNION."  BALZAC V. PORTO RICO, 258 U.S. 298, 304
305. 

IN AN EARLIER CASE, THIS COURT HAD SUSTAINED THE CONSTITUTIONALITY OF
AN ACT OF CONGRESS WHICH CREATED CONSULAR COURTS TO TRY, PURSUANT TO
TREATIES, AMERICAN CITIZENS FOR CRIMES COMMITTED IN JAPAN, CHINA, AND
OTHER COUNTRIES.  IN RE ROSS, 140 U.S. 453.  ROSS, AN AMERICAN SEAMAN
CONVICTED OF MURDER BY A CONSULAR COURT IN YOKOHAMA, JAPAN, CONTENDED
THAT HE HAD BEEN DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO BOTH GRAND AND
PETIT JURIES.  IN REJECTING THIS CLAIM, THE COURT POINTED OUT THAT
THESE CONSTITUTIONAL GUARANTEES WERE NOT APPLICABLE TO A CONSULAR COURT
SITTING OUTSIDE THE CONTINENTAL UNITED STATES.  140 U.S., AT 464. 
RECOUNTING THE LONG-ESTABLISHED PRACTICE OF GOVERNMENTS TO PROVIDE "FOR
THE EXERCISE OF JUDICIAL AUTHORITY IN OTHER COUNTRIES BY THEIR OFFICERS
APPOINTED TO RESIDE THEREIN," ID., AT 463, THE COURT NOTED THAT THE
REQUIREMENT OF A GRAND AND PETIT JURY IN THESE CIRCUMSTANCES "WOULD
DEFEAT THE MAIN PURPOSE OF INVESTING THE CONSUL WITH JUDICIAL
AUTHORITY."  140 U.S., AT 465.  IN 1929, CITING ROSS WITH APPROVAL IN
EX PARTE BAKELITE CORP., 279 U.S. 438, 451, THIS COURT REAFFIRMED THE
DOCTRINE THAT "LEGISLATIVE COURTS  ...  EXERCISE THEIR FUNCTIONS WITHIN
PARTICULAR DISTRICTS IN FOREIGN TERRITORY AND ARE INVESTED WITH A LARGE
MEASURE OF JURISDICTION OVER AMERICAN CITIZENS IN THOSE DISTRICTS.  THE
AUTHORITY OF CONGRESS TO CREATE THEM AND TO CLOTHE THEM WITH SUCH
JURISDICTION HAS BEEN UPHELD BY THIS COURT AND IS WELL RECOGNIZED." 
THESE CASES ESTABLISH BEYOND QUESTION THAT THE CONSTITUTION DOES NOT
REQUIRE TRIAL BEFORE AN ARTICLE III COURT IN A FOREIGN COUNTRY FOR
OFFENSES COMMITTED THERE BY AN AMERICAN CITIZEN AND THAT CONGRESS MAY
ESTABLISH LEGISLATIVE COURTS FOR THIS PURPOSE. 

HAVING DETERMINED THAT ONE IN THE CIRCUMSTANCES OF MRS. SMITH MAY BE
TRIED BEFORE A LEGISLATIVE COURT ESTABLISHED BY CONGRESS, (FN6) WE HAVE
NO NEED TO EXAMINE THE POWER OF CONGRESS "TO MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES" UNDER ARTICLE I
OF THE CONSTITUTION.   IF IT IS REASONABLE AND CONSONANT WITH DUE
PROCESS FOR CONGRESS TO EMPLOY THE EXISTING SYSTEM OF COURTS-MARTIAL
FOR THIS PURPOSE, THE ENACTMENT MUST BE SUSTAINED. 

IN THE PRESENT DAY, WE, AS A NATION, HAVE FOUND IT NECESSARY TO THE
PRESERVATION OF OUR SECURITY TO MAINTAIN AMERICAN FORCES IN SOME SIXTY
THREE FOREIGN COUNTRIES.  THE PRACTICAL NECESSITY OF ALLOWING THESE MEN
TO BE ACCOMPANIED BY THEIR FAMILIES WHERE POSSIBLE HAS BEEN RECOGNIZED
BY CONGRESS AS WELL AS THE SERVICES, AND THE RESULT HAS BEEN THE
CREATION OF AMERICAN COMMUNITIES OF MIXED CIVILIAN AND MILITARY
POPULATION AT BASES THROUGHOUT THE WORLD.  IN ALL MATTERS OF SUBSTANCE,
THE LIVES OF MILITARY AND CIVILIAN PERSONNEL ALIKE ARE GEARED TO THE
LOCAL MILITARY ORGANIZATION WHICH PROVIDES THEIR LIVING ACCOMMODATIONS,
MEDICAL FACILITIES AND TRANSPORTATION FROM AND TO THE UNITED STATES. 
WE COULD NOT FIND IT UNREASONABLE FOR CONGRESS TO CONCLUDE THAT ALL
SHOULD BE GOVERNED BY THE SAME LEGAL STANDARD TO THE END THAT THEY
RECEIVE EQUAL TREATMENT UNDER LAW.  THE EFFECT OF A DOUBLE STANDARD
MIGHT WELL CREATE SUFFICIENT UNREST AND CONFUSION TO RESULT IN THE
DESTRUCTION OF EFFECTIVE LAW ENFORCEMENT.  (FN7)  BY THE ENACTMENT OF
ARTICLE 2(11) OF THE CODE, CONGRESS HAS PROVIDED THAT ALL SHALL BE
SUBJECT TO THE SAME SYSTEM OF JUSTICE AND THAT THE MILITARY COMMANDER
WHO BEARS FULL RESPONSIBILITY FOR THE CARE AND SAFETY OF THOSE
CIVILIANS ATTACHED TO HIS COMMAND SHALL ALSO HAVE AUTHORITY TO REGULATE
THEIR CONDUCT. 

IT WAS CONCEDED BEFORE THIS COURT THAT CONGRESS COULD HAVE
ESTABLISHED, OR MIGHT YET ESTABLISH, A SYSTEM OF TERRITORIAL OR
CONSULAR COURTS TO TRY OFFENSES COMMITTED BY CIVILIAN DEPENDENTS
ABROAD.  WHILE THIS WOULD BE WITHIN THE POWER OF CONGRESS, IN RE ROSS,
SUPRA, CLEARLY NOTHING IN THE CONSTITUTION COMPELS IT.  THE POWER TO
CREATE A TERRITORIAL OR CONSULAR COURT DOES NOT PRECLUDE, BUT MUST
NECESSARILY INCLUDE, THE POWER TO PROVIDE FOR TRIAL BEFORE A MILITARY
TRIBUNAL UNLESS THAT ALTERNATIVE IS "SO CLEARLY ARBITRARY OR CAPRICIOUS
THAT LEGISLATORS ACTING REASONABLY COULD NOT HAVE BELIEVED IT NECESSARY
OR APPROPRIATE FOR THE PUBLIC WELFARE."  (FN8)  THE CHOICE AMONG
DIFFERENT TYPES OF LEGISLATIVE TRIBUNALS IS PECULIARLY WITHIN THE POWER
OF CONGRESS, EX PARTE BAKELITE CORP., 279 U.S. 438, 451, AND WE ARE
CONCERNED ONLY WITH THE CONSTITUTIONALITY, NOT THE WISDOM, OF THIS
CHOICE. 

IN SELECTING THE UNIFORM CODE OF MILITARY JUSTICE, CONGRESS MIGHT
HAVE SOUGHT TO AVOID NEEDLESS AND POTENTIALLY HARMFUL DUPLICATION OF A
LEGAL SYSTEM ALREADY EXTANT IN EVERY FOREIGN NATION WHERE OUR TROOPS
ARE STATIONED.  ON THE OTHER HAND, CONGRESS COULD WELL HAVE DETERMINED
THAT THE CODE WAS ADEQUATE TO THE PURPOSE TO BE ACHIEVED AND WOULD
AFFORD MORE SAFEGUARDS TO AN ACCUSED THAN ANY OTHER AVAILABLE
PROCEDURE.  THE CODE IS A UNIFORM SYSTEM OF LEGAL PROCEDURE, APPLICABLE
BEYOND ANY CONSTITUTIONAL QUESTION TO ALL SERVICEMEN STATIONED ABROAD. 
IT WAS ADOPTED BY CONGRESS ONLY AFTER AN EXHAUSTIVE STUDY OF SEVERAL
YEARS DURATION AND THE CONSULTATION OF ACKNOWLEDGED AUTHORITIES IN THE
FIELDS OF CONSTITUTIONAL AND MILITARY LAW.  (FN9)  IN ADDITION TO THE
FUNDAMENTALS OF DUE PROCESS, IT INCLUDES PROTECTIONS WHICH THIS COURT
HAS NOT REQUIRED A STATE TO PROVIDE (FN10) AND SOME PROCEDURES WHICH
WOULD COMPARE FAVORABLY WITH THE MOST ADVANCED CRIMINAL CODES.  WE FIND
NO CONSTITUTIONAL DEFECT IN THE FACT THAT THE CODE DOES NOT PROVIDE FOR
INDICTMENT BY GRAND JURY OR TRIAL BY PETIT JURY.  IN THESE RESPECTS IT
DOES NOT DIFFER FROM THE PROCEDURES SPECIFICALLY APPROVED BY THIS COURT
IN OTHER TYPES OF LEGISLATIVE COURTS ESTABLISHED ABROAD BY CONGRESS. 
IN RE ROSS, SUPRA; HAWAII V. MANKICHI, 190 U.S. 197; DORR V. UNITED
STATES, 195 U.S. 138; BALZAC V. PORTO RICO, SUPRA. 

FURTHERMORE, SINCE UNDER THE PRINCIPLES OF INTERNATIONAL LAW EACH
NATION HAS JURISDICTION OF THE OFFENSES COMMITTED WITHIN ITS OWN
TERRITORY, SCHOONER EXCHANGE V. MCFADDON, 7 CRANCH 116, 136, THE
ESSENTIAL CHOICE INVOLVED HERE IS BETWEEN AN AMERICAN AND A FOREIGN
TRIAL.  FOREIGN NATIONS HAVE RELINQUISHED JURISDICTION TO AMERICAN
MILITARY AUTHORITIES ONLY PURSUANT TO CAREFULLY DRAWN AGREEMENTS WHICH
PRESUPPOSE PROMPT TRIAL BY EXISTENT AUTHORITY.  (FN11)  ABSENT THE
EFFECTIVE EXERCISE OF JURISDICTION THUS OBTAINED, THERE IS NO REASON TO
SUPPOSE THAT THE NATIONS INVOLVED WOULD NOT EXERICSE THEIR SOVEREIGN
RIGHT TO TRY AND PUNISH FOR OFFENSES COMMITTED WITHIN THEIR BORDERS. 
UNDER THESE CIRCUMSTANCES, CONGRESS MAY WELL HAVE DETERMINED THAT TRIAL
BEFORE AN AMERICAN COURT-MARTIAL IN WHICH THE FUNDAMENTALS OF DUE
PROCESS ARE ASSURED WAS PREFERABLE TO LEAVING AMERICAN SERVICEMEN AND
THEIR DEPENDENTS THROUGHOUT THE WORLD SUBJECT TO WIDELY VARYING
STANDARDS OF JUSTICE UNFAMILIAR TO OUR PEOPLE.  (FN12) 

WE NOTE THAT THIS CASE PRESENTS NO PROBLEM OF THE JURISDICTION OF A
MILITARY COURT-MARTIAL SITTING WITHIN THE TERRITORIAL LIMITS OF THE
UNITED STATES OR THE POWER OF CONGRESS TO PROVIDE FOR TRIAL OF
AMERICANS SOJOURNING, TOURING, OR TEMPORARILY RESIDING ABROAD.  NO
QUESTION OF THE LEGAL RELATION BETWEEN TREATIES AND THE CONSTITUTION IS
PRESENTED.  ON THE QUESTION BEFORE US, WE FIND NO CONSTITUTIONAL BAR TO
THE POWER OF CONGRESS TO ENACT ARTICLE 2(11) OF THE UNIFORM CODE OF
MILITARY JUSTICE.    THE JUDGMENT IS AFFIRMED. 

FN1  RELEVANT PORTIONS OF THE ADMINISTRATIVE AGREEMENT ARE:

                            "ARTICLE IX 

"1.  THE UNITED STATES SHALL HAVE THE RIGHT TO BRING INTO JAPAN FOR
PURPOSES OF THIS AGREEMENT PERSONS WHO ARE MEMBERS OF THE UNITED STATES
ARMED FORCES, THE CIVILIAN COMPONENT, AND THEIR DEPENDENTS.           *
   *         *    *         *

                            "ARTICLE XVII 

"1.  UPON THE COMING INTO FORCE WITH RESPECT TO THE UNITED STATES OF
THE 'AGREEMENT BETWEEN THE PARTIES TO THE NORTH ATLANTIC TREATY
REGARDING THE STATUS OF THEIR FORCES', SIGNED AT LONDON ON JUNE 19,
1951, THE UNITED STATES WILL IMMEDIATELY CONCLUDE WITH JAPAN, AT THE
OPTION OF JAPAN, AN AGREEMENT ON CRIMINAL JURISDICTION SIMILAR TO THE
CORRESPONDING PROVISIONS OF THAT AGREEMENT. 

"2.  PENDING THE COMING INTO FORCE WITH RESPECT TO THE UNITED STATES
OF THE NORTH ATLANTIC TREATY AGREEMENT REFERRED TO IN PARAGRAPH 1, THE
UNITED STATES SERVICE COURTS AND AUTHORITIES SHALL HAVE THE RIGHT TO
EXERCISE WITHIN JAPAN EXCLUSIVE JURISDICTION OVER ALL OFFENSES WHICH
MAY BE COMMITTED IN JAPAN BY MEMBERS OF THE UNITED STATES ARMED FORCES,
THE CIVILIAN COMPONENT, AND THEIR DEPENDENTS, EXCLUDING THEIR
DEPENDENTS WHO HAVE ONLY JAPANESE NATIONALITY.  SUCH JURISDICTION MAY
IN ANY CASE BE WAIVED BY THE UNITED STATES. 

     *         *    *         *         * 

"4.  THE UNITED STATES UNDERTAKES THAT THE UNITED STATES SERVICE
COURTS AND AUTHORITIES SHALL BE WILLING AND ABLE TO TRY AND, ON
CONVICTION, TO PUNISH ALL OFFENSES AGAINST THE LAWS OF JAPAN WHICH
MEMBERS OF THE UNITED STATES ARMED FORCES, CIVILIAN COMPONENT, AND
THEIR DEPENDENTS MAY BE ALLEGED ON SUFFICIENT EVIDENCE TO HAVE
COMMITTED IN JAPAN, AND TO INVESTIGATE AND DEAL APPROPRIATELY WITH ANY
ALLEGED OFFENSE COMMITTED BY MEMBERS OF THE UNITED STATES ARMED FORCES,
THE CIVILIAN COMPONENT, AND THEIR DEPENDENTS, WHICH MAY BE BROUGHT TO
THEIR NOTICE BY JAPANESE AUTHORITIES OR WHICH THEY MAY FIND TO HAVE
TAKEN PLACE.  THE UNITED STATES FURTHER UNDERTAKES TO NOTIFY THE
JAPANESE AUTHORITIES OF THE DISPOSITION MADE BY UNITED STATES SERVICE
COURTS OF ALL CASES ARISING UNDER THIS PARAGRAPH.  THE UNITED STATES
SHALL GIVE SYMPATHETIC CONSIDERATION TO A REQUEST FROM JAPANESE
AUTHORITIES FOR A WAIVER OF ITS JURISDICTION IN CASES ARISING UNDER
THIS PARAGRAPH WHERE THE JAPANESE GOVERNMENT CONSIDERS SUCH WAIVER TO
BE OF PARTICULAR IMPORTANCE.  UPON SUCH WAIVER, JAPAN MAY EXERCISE ITS
OWN JURISDICTION. 

"5.  IN THE EVENT THE OPTION REFERRED TO IN PARAGRAPH 1 IS NOT
EXERCISED BY JAPAN, THE JURISDICTION PROVIDED FOR IN PARAGRAPH 2 AND
THE FOLLOWING PARAGRAPHS SHALL CONTINUE IN EFFECT.  IN THE EVENT THE
SAID NORTH ATLANTIC TREATY AGREEMENT HAS NOT COME INTO EFFECT WITHIN
ONE YEAR FROM THE EFFECTIVE DATE OF THIS AGREEMENT, THE UNITED STATES
WILL, AT THE REQUEST OF THE JAPANESE GOVERNMENT, RECONSIDER THE SUBJECT
OF JURISDICTION OVER OFFENSES COMMITTED IN JAPAN BY MEMBERS OF THE
UNITED STATES ARMED FORCES, THE CIVILIAN COMPONENT, AND THEIR
DEPENDENTS."  3 UST (PART 3) 3346, 3353-3356. 

FN2  MR. JUSTICE WHITE CONCURRING IN DOWNES V. BIDWELL, 182 U.S. 244,
292.  SEE DORR V. UNITED STATES, 195 U.S. 138.  "THE DORR CASE SHOWS
THAT THE OPINION OF MR. JUSTICE WHITE OF THE MAJORITY, IN DOWNES V.
BIDWELL, HAS BECOME THE SETTLED LAW OF THE COURT."  TAFT, C.J., IN
BALZAC V. PORTO RICO, 258 U.S. 298, 305. 

FN3  HAWAII V. MANKICHI, 190 U.S. 197. 

FN4  DORR V. UNITED STATES, 195 U.S. 138. 

FN5  BALZAC V. PORTO RICO, 258 U.S. 298. 

FN6  IN THIS RESPECT THIS CASE IS ENTIRELY DIFFERENT FROM TOTH V.
QUARLES, SUPRA, WHERE THE DEFENDANT, AFTER DISCHARGE FROM MILITARY
SERVICE AND RETURN TO THIS COUNTRY, WAS ENTITLED TO TRIAL BEFORE AN
ARTICLE III COURT, AND WE FOUND "NO EXCUSE FOR NEW EXPANSION OF COURT
MARTIAL JURISDICTION AT THE EXPENSE OF THE NORMAL AND CONSTITUTIONALLY
PREFERABLE SYSTEM OF TRIAL BY JURY."  350 U.S., AT 22-23.  IN TOTH WE
FOUND THAT ARTICLE 3(A) OF THE UNIFORM CODE OF MILITARY JUSTICE
"NECESSARILY ENCROACHES ON THE JURISDICTION OF FEDERAL COURTS SET UP
UNDER ARTICLE III OF THE CONSTITUTION."  350 U.S., AT 15.  NO LIKE
CONSTITUTIONAL BAR EXISTS IN THE PRESENT CASE. 

FN7  ONE NEED ONLY CONSIDER THE DISRUPTIVE EFFECT OF ESTABLISHING
ANOTHER TYPE OF LEGISLATIVE COURT TO DEAL WITH THE SAME OFFENSES IN THE
SAME TERRITORIAL JURISDICTION AS THE MILITARY TRIBUNALS.   IN CASES OF
CONSPIRACY OR JOINT CRIME, PARALLEL TRIALS WOULD HAVE TO BE HELD IN
SEPARATE COURTS.  SINCE THE TRIALS COULD NOT PROCEED AT THE SAME TIME,
ONE WOULD OF NECESSITY PRECEDE AND INFLUENCE THE OTHER, AND RESULTS
COULD UNDERSTANDABLY BE DISPARATE.  NOR IS THE PROBLEM OF INSIGNIFICANT
PROPORTIONS.  RELIABLE FIGURES SHOW THAT OUR ARMED FORCES OVERSEAS ARE
ACCOMPANIED BY APPROXIMATELY A QUARTER OF A MILLION DEPENDENTS AND
CIVILIAN WORKERS.  FIGURES RELATING TO THE ARMY ALONE SHOW THAT IN THE
6 FISCAL YEARS FROM JULY 1, 1949, TO JUNE 30, 1955, A TOTAL OF 2,280
CIVILIANS WERE TRIED BY COURTS-MARTIAL.  WHILE IT IS TRUE THAT THE VAST
MAJORITY OF THESE PROSECUTIONS WERE FOR MINOR OFFENSES, THE VOLUME
ALONE SHOWS THE SERIOUS PROBLEM THAT WOULD BE PRESENTED BY THE
ADMINISTRATION OF A DUAL SYSTEM OF COURTS. 

FN8  MR. JUSTICE BRANDEIS DISSENTING IN BURNS BAKING CO. V. BRYAN,
264 U.S. 504, 534. 

FN9  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED
SERVICES, HOUSE OF OF REPRESENTATIVES, 81ST CONG., 1ST SESS. (1949). 

FN10  E.G., SELF-INCRIMINATION, COMPARE ART. 31 AND PARA. 149B, AND
PARA. 72B, MANUAL FOR COURTS-MARTIAL, WITH ADAMSON V. CALIFORNIA, 332
U.S. 46; FORMER JEOPARDY, COMPARE ARTS.  44 AND 63 WITH PALKO V.
CONNECTICUT, 302 U.S. 319; USE OF ILLEGALLY OBTAINED EVIDENCE, COMPARE
PARA. 152, MANUAL FOR COURTS-MARTIAL, WITH WOLF V. COLORADO, 338 U.S.
25. 

FN11  SEE NOTE 1, SUPRA, AND SCHWARTZ, INTERNATIONAL LAW AND THE NATO
STATUS OF FORCES AGREEMENT, 53 COL. L. REV. 1091; RE, THE NATO STATUS
OF FORCES AGREEMENT AND INTERNATIONAL LAW, 50 N.W.U.L. REV. 349. 

FN12  IT HAS BEEN SUGGESTED THAT BRINGING AMERICAN CITIZENS TO THIS
COUNTRY FOR TRIAL FOR OFFENSES COMMITTED ABROAD MAY BE A PREFERABLE
SOLUTION EVEN IF IT IS NOT REQUIRED BY THE CONSTITUTION.  CONGRESS
MIGHT WELL HAVE CONCLUDED THAT THIS SUGGESTION WAS COMPLETELY
IMPRACTICAL.  FIRST, A CONDITION PRECEDENT TO TRIAL IN THIS COUNTRY
WOULD BE THE CONSENT OF THE FOREIGN NATION CONCERNED IN EACH INDIVIDUAL
CASE.  THIS CONSENT COULD ALWAYS BE WITHHELD AND IT IS LIKELY THAT
FOREIGN NATIONS WOULD REFUSE TO CEDE JURISDICTION OVER SERIOUS OFFENSES
WHEN TRIAL MIGHT BE HELD MANY THOUSANDS OF MILES AWAY.  EVEN WHERE
JURISDICTION WAS OBTAINED, THE DETERRENT EFFECT OF SUCH PROSECUTIONS
MIGHT WELL BE VITIATED BY THE DISTANCE AND DELAY INVOLVED.  SECONDLY,
BOTH THE GOVERNMENT AND THE ACCUSED WOULD FACE SERIOUS PROBLEMS IN THE
PRODUCTION OF WITNESSES.  DEPOSITIONS FOR THE GOVERNMENT ARE NOT
PERMITTED IN CRIMINAL CASES.  SEE RULE 15, FEDERAL RULES OF CRIMINAL
PROCEDURE.  ATTENDANCE OF FOREIGN WITNESSES COULD BE ONLY ON A
VOLUNTARY BASIS AND THE TESTIMONY OF NO FOREIGN WITNESS COULD BE
COMPELLED IF THE WITNESS OR HIS GOVERNMENT REFUSED.  THE EXPENSE OF
TRANSPORTING WITNESSES WOULD BE CONSIDERABLE FOR THE GOVERNMENT AND
PROBABLY IMPOSSIBLE FOR A DEFENDANT, WHOSE SUCCESSFUL DEFENSE MAY
DEPEND ON THE DEMEANOR OF ONE WITNESS.  IN FAIRNESS, THE GOVERNMENT
WOULD HAVE TO BEAR THE EXPENSE OF TRANSPORTING THE DEFENDANT'S
WITNESSES AS WELL AS ITS OWN, AND THE POSSIBILITIES OF ABUSE ARE
OBVIOUS. 

FINALLY, A BREAKDOWN OF THE FIGURES ON TRIAL BY COURTS-MARTIAL OF
CIVILIANS ABROAD FROM 1950-1955 SHOWS THAT SOME 2,000 OF THE 2,280
CASES TRIED INVOLVED OFFENSES FOR WHICH THE MAXIMUM PUNISHMENT WAS SIX
MONTHS OR LESS.  THE GOVERNMENT MIGHT BE UNWILLING TO UNDERGO THE HEAVY
EXPENSE AND INCONVENIENCE OF TRIAL HERE FOR SUCH MINOR OFFENSES.  THE
ALTERNATIVES WOULD BE EITHER TRIAL BY THE FOREIGN COUNTRY OR NO TRIAL
AT ALL; THE RESULT MUST BE THE PRACTICAL ABDICATION OF AMERICAN
JUDICIAL AUTHORITY, PRECISELY WHAT CONGRESS WISHED TO AVOID. 

RESERVATION OF MR. JUSTICE FRANKFURTER.* 

*NOTE:  THIS RESERVATION APPLIES ALSO TO REID V. COVERT, POST, P.
487. 

THE COURT TODAY SUSTAINS MRS. CLARICE B. COVERT'S CONVICTION BY A
GENERAL COURT-MARTIAL IN ENGLAND FOR THE MURDER OF HER HUSBAND, A
SERGEANT IN THE UNITED STATES AIR FORCE, AND THE CONVICTION OF MRS.
DORTOHY KRUEGER SMITH BY A GENERAL COURT-MARTIAL IN JAPAN FOR THE
MURDER OF HER HUSBAND, A COLONEL IN THE UNITED STATES ARMY.  THE COURT
DOES SO, ALTHOUGH IT ANNOUNCES THAT "WE HAVE NO NEED TO EXAMINE THE
POWER OF CONGRESS 'TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF
THE LAND AND NAVAL FORCES' UNDER ARTICLE I OF THE CONSTITUTION."  THE
PLAIN INFERENCE FORM THIS IS THAT THE COURT IS NOT PREPARED TO SUPPORT
THE CONSTITUTIONAL BASIS UPON WHICH THE COVERT AND SMITH COURTS-MARTIAL
WERE INSTITUTED AND THE CONVICTIONS WERE SECURED. 

THE UNIFORM CODE OF MILITARY JUSTICE WHICH GOVERNED THESE
PROCEEDINGS, AND THE INTERNATIONAL ARRANGEMENTS WITH ENGLAND AND JAPAN
WHEREBY THE UNITED STATES WAS ALLOWED TO EXERCISE JURISDICTION OVER THE
ALLEGED CRIMES, ARE CONCERNED WITH, DIRECTED TOWARD, AND EXPLICITLY
ACKNOWLEDGED AS LEGAL MEASURES THAT HAD THEIR SOURCE IN, AND WERE
OBVIOUSLY TO BE AN EXERCISE OF, THE CONSTITUTIONAL POWER OF CONGRESS
"TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL
FORCES."  AS PROVIDED BY THE UNIFORM CODE OF MILITARY JUSTICE, MRS.
SMITH AND MRS. COVERT WERE TRIED AS THOUGH THEY WERE MEMBERS OF THE
ARMED FORCES.  IN VIEW OF THIS COURT'S OPINION IN TOTH V. QUARLES, 350
U.S. 11, AND THE FACT THAT THE CONSTITUTION "CLEARLY DISTINGUISHES THE
MILITARY FROM THE CIVIL CLASS AS SEPARATE COMMUNITIES" AND "RECOGNIZES
NO THIRD CLASS WHICH IS PART CIVIL AND PART MILITARY - MILITARY FOR A
PARTICULAR PURPOSE OR IN A PARTICULAR SITUATION, AND CIVIL FOR ALL
OTHER PURPOSES AND IN ALL OTHER SITUATIONS  ...  ," WINTHROP, MILITARY
LAW AND PRECEDENTS (2D ED. 1896), 145, THE COURT'S FAILURE TO REST ITS
DECISION UPON THE CONGRESSIONAL POWER "TO MAKE RULES FOR THE GOVERNMENT
AND REGULATION OF THE LAND AND NAVAL FORCES" IS SIGNIFICANT. 

HAVING PUT OUT OF CONSIDERATION RELIANCE ON THE IMMEDIATELY PERTINENT
CONSTITUTIONAL PROVISION BEARING ON THE DIFFICULTIES RAISED BY THESE
CASES, THE COURT SUSTAINS THE CONVICTIONS BY TWO LINES OF ARGUMENT THAT
OBVIOUSLY HAVE NOTHING WHATEVER TO DO WITH THE REGULATION OF THE ARMED
FORCES OF THE UNITED STATES.  THE COURT RELIES ON IN RE ROSS, 140 U.S.
453, A CASE THAT REPRESENTS, HISTORICALLY AND JURIDICALLY, AN EPISODE
OF THE DEAD PAST ABOUT AS UNRELATED TO THE WORLD OF TODAY AS THE ONE
HOSS SHAY IS TO THE LATEST JET AIRPLANE.  IN COMPLETE DISREGARD OF THE
POLITICAL AND LEGAL SOURCES PURPORTING TO RENDER WOMEN LIKE MRS. SMITH
AND MRS. COVERT AMENABLE TO MILITARY COURTS-MARTIAL FOR CRIMES
COMMITTED ABROAD, THE COURT DRAWS ON THE SYSTEM OF CAPITULATIONS
WHEREBY WESTERN COUNTRIES, INCLUDING THE UNITED STATES, COMPELLED
POWERLESS EASTERN AND ASIATIC NATIONS TO SURRENDER THEIR AUTHORITY OVER
CONDUCT WITHIN THEIR CONFINES BY CITIZENS OF THESE WESTERN NATIONS TO
THE RULE OF WESTERN "CONSULAR COURTS."  THE EASTERN NATIONS WERE MADE
TO YIELD BECAUSE "OF THE BARBAROUS AND CRUEL PUNISHMENTS INFLICTED IN
THOSE COUNTRIES, AND THE FREQUENT USE OF TORTURE TO ENFORCE CONFESSION
FROM PARTIES ACCUSED  ...  ."  IN RE ROSS, SUPRA, AT 463.  I DO NOT
SUPPOSE THAT THE ARRANGEMENTS BY WHICH GREAT BRITAIN AND JAPAN GAVE THE
UNITED STATES JURISDICTION OVER THE MURDERS WITH WHICH MRS. SMITH AND
MRS. COVERT WERE CHARGED ARE TO BE DEEMED CONCESSIONS WRUNG BY THE
UNITED STATES AS WERE THE CAPITULATIONS WRUNG, OFTEN BY FORCE, FROM THE
OTTOMAN EMPIRE AND OTHER EASTERN NATIONS BECAUSE THEY WERE DEEMED
INFERIOR BY THE WEST, LONG AGO AND FAR AWAY.* 

*SEE THE OPINION, IN 1855, OF ATTORNEY GENERAL CALEB CUSHING:  "THE
LEGAL RATIONALE OF THE TREATY STIPULATIONS AS TO CHINA, WITH WHICH WE
ARE NOW CHIEFLY CONCERNED, AND THEIR RELATION TO THE LEGISLATIVE
AUTHORITY OF THE UNITED STATES, ARE EXPLAINED IN A DISPATCH OF THE
MINISTER WHO NEGOTIATED THE TREATY, AS FOLLOWS: 

"'I ENTERED CHINA WITH THE FORMED GENERAL CONVICTION THAT THE UNITED
STATES OUGHT NOT TO CONCEDE TO ANY FOREIGN STATE, UNDER ANY
CIRCUMSTANCES, JURISDICTION OVER THE LIFE AND LIBERTY OF A CITIZEN OF
THE UNITED STATES, UNLESS THAT FOREIGN STATE BE OF OUR OWN FAMILY OF
NATIONS, - IN A WORD, A CHRISTIAN STATE  ...  .'"  7 OP. ATTY. GEN.
495, 496-497. 

THE COURT DERIVES ITS SECOND LINE OF ARGUMENT FROM THE DECISIONS OF
THIS COURT WHICH HAVE EVOLVED THE POWER OF CONGRESS TO DEAL WITH
TERRITORY ACQUIRED BY PURCHASE OR THROUGH WAR, BEGINNING WITH THE
STATUTE OF 1822, WHICH SET UP THE GOVERNMENT OF FLORIDA.  SEE AMERICAN
INSURANCE CO. V. CANTER, 1 PET. 511.  I MUST CONFESS INABILITY TO
APPRECIATE THE BEARING OF THE SERIES OF COMPLICATED ADJUDICATIONS
DEALING WITH THE DIFFICULT PROBLEMS RELATING TO "ORGANIZED" AND
"UNORGANIZED" TERRITORIES OF THE UNITED STATES TO LEGISLATION BY
CONGRESS TREATING CIVILIANS ACCOMPANYING MEMBERS OF THE ARMED FORCES
ABROAD AS THOUGH THEY WERE PART OF THE ARMED FORCES AND THEREFORE
AMENABLE TO THE CODE OF MILITARY JUSTICE. 

GRAVE ISSUES AFFECTING THE STATUS OF AMERICAN CIVILIANS THROUGHOUT
THE WORLD ARE RAISED BY THESE CASES; THEY ARE MADE GRAVER BY THE
ARGUMENTS ON WHICH THE COURT FINDS IT NECESSARY TO RELY IN REACHING ITS
RESULT.  DOUBTLESS BECAUSE OF THE PRESSURE UNDER WHICH THE COURT WORKS
DURING ITS CLOSING WEEKS, THESE ARGUMENTS HAVE BEEN MERELY ADUMBRATED
IN ITS OPINION.  TO DEAL ADEQUATELY WITH THEM, HOWEVER, DEMANDS OF
THOSE TO WHOM THEY ARE NOT PERSUASIVE MORE TIME THAN HAS BEEN AVAILABLE
TO EXAMINE AND TO ANALYZE IN DETAIL THE HISTORICAL UNDERPINNING AND
IMPLICATION OF THE CASES RELIED UPON BY THE COURT, AS A PRELIMINARY TO
A SEARCHING CRITIQUE OF THEIR RELEVANCE TO THE PROBLEMS NOW BEFORE THE
COURT.  FOR THE MOMENT, IT MUST SUFFICE, BY WAY OF EXAMPLE, TO INDICATE
THAT BY RESORTING TO IN RE ROSS THE COURT HAS TORN FROM ITS HISTORICAL
CONTEXT AN INSTITUTION - THE CONSULAR COURT - THAT HAD A TOTALLY
DIFFERENT SOURCE AND A TOTALLY DIFFERENT PURPOSE THAN THE SOURCE AND
PURPOSE OF ART. 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT.
107, 109.  A GLIMPSE INTO THE INTERNATIONAL ENVIRONMENT AND POLITICAL
ASSUMPTIONS OUT OF WHICH THE CONSULAR COURT SYSTEM DERIVED AND OF WHICH
IT WAS A PART SUFFICES TO INDICATE THE SCOPE OF THE INQUIRY FOR WHICH
THE COURT'S OPINION CALLS.  SUCH A GLIMPSE IS AFFORDED BY THE
JUSTIFICATION FOR CONSULAR COURTS URGED BY THE GOVERNMENT ON THIS COURT
65 YEARS AGO.  RELIANCE WAS PLACED ON THIS AUTHORITATIVE VIEW OF
SECRETARY OF STATE HAMILTON FISH: 

"A REPORT MADE TO CONGRESS BY MY PREDECESSOR, MR. SEWARD  ...  SHOWS
THAT IT HAS BEEN THE HABIT OF THIS DEPARTMENT TO REGARD THE JUDICIAL
POWER OF OUR CONSULAR OFFICERS IN JAPAN AS RESTING UPON THE ASSENT OF
THE GOVERNMENT OF THAT KINGDOM, WHETHER EXPRESSED BY FORMAL CONVENTION
OR BY TACIT ACQUIESCENCE IN THE NOTORIOUS PRACTICE OF THE CONSULAR
COURTS.  IN OTHER WORDS, THEY WERE ESTEEMED SOMEWHAT IN THE SAME LIGHT
AS THEY WOULD HAVE BEEN IF THEY WERE CONSTITUTED BY THE MIKADO WITH
AMERICAN CITIZENS AS JUDGES, AND WITH ALL THE AUTHORITY WITH WHICH A
JAPANESE TRIBUNAL IS INVESTED IN RESPECT TO THE NATIVE SUBJECTS OF
JAPAN, TO THE EXTENT THAT OUR GOVERNMENT WILL ADMIT A JURISDICTION
UNDERSTOOD TO BE EXTREMELY ARBITRARY.  THEY WERE, SO TO SPEAK, THE
AGENTS OF A DESPOTISM, ONLY RESTRAINED BY SUCH SAFEGUARDS AS OUR OWN
GOVERNMENT MAY INTERPOSE FOR THE PROTECTION OF CITIZENS WHO COME WITHIN
ITS SWAY."  BRIEF FOR THE UNITED STATES, P. 25, IN IN RE ROSS, 140 U.S.
453. 

TIME IS REQUIRED NOT ONLY FOR THE PRIMARY TASK OF ANALYZING IN DETAIL
THE MATERIALS ON WHICH THE COURT RELIES.  IT IS EQUALLY REQUIRED FOR
ADEQUATE REFLECTION UPON THE MEANING OF THESE MATERIALS AND THEIR
BEARING ON THE ISSUES NOW BEFORE THE COURT.  REFLECTION IS A SLOW
PROCESS.  WISDOM, LIKE GOOD WINE, REQUIRES MATURING. 

MOREOVER, THE JUDGMENTS OF THIS COURT ARE COLLECTIVE JUDGMENTS.  THEY
ARE NEITHER SOLO PERFORMANCES NOR DEBATES BETWEEN TWO SIDES, EACH OF
WHICH HAS ITS MIND QUICKLY MADE UP AND THEN CLOSED.  THE JUDGMENTS OF
THIS COURT PRESUPPOSE FULL CONSIDERATION AND RECONSIDERATION BY ALL OF
THE REASONED VIEWS OF EACH.  WITHOUT ADEQUATE STUDY THERE CANNOT BE
ADEQUATE REFLECTION.  WITHOUT ADEQUATE REFLECTION THERE CANNOT BE
ADEQUATE DELIBERATION AND DISCUSSION.  AND WITHOUT THESE, THERE CANNOT
BE THAT FULL INTERCHANGE OF MINDS WHICH IS INDISPENSABLE TO WISE
DECISION AND ITS PERSUASIVE FORMULATION. 

THE CIRCUMSTANCES BEING WHAT THEY ARE, I AM FORCED, DEEPLY AS I
REGRET IT, TO RESERVE FOR A LATER DATE AN EXPRESSION OF MY VIEWS. 

MR. CHIEF JUSTICE WARREN, MR. JUSTICE BLACK, AND MR. JUSTICE DOUGLAS
DISSENT.* 

*NOTE:  THIS DISSENT APPLIES ALSO TO REID V. COVERT, POST, P. 487. 

THE DECISIONS JUST ANNOUNCED HAVE FAR-REACHING IMPROTANCE.  THEY
SUBJECT TO MILITARY COURT-MARTIAL, EVEN IN TIME OF PEACE, THE WIVES,
MOTHERS AND CHILDREN OF MEMBERS OF THE ARMED FORCES SERVING ABROAD EVEN
THOUGH THESE DEPENDENTS HAVE NO CONNECTION WHATEVER WITH THE ARMED
FORCES EXCEPT THEIR KINSHIP TO MILITARY PERSONNEL AND THEIR PRESENCE
ABROAD.  THE QUESTIONS RAISED ARE COMPLEX, THE REMEDY DRASTIC, AND THE
CONSEQUENCES FAR-REACHING UPON THE LIVES OF CIVILIANS.  THE MILITARY IS
GIVEN NEW POWERS NOT HITHERTO THOUGHT CONSISTENT WITH OUR SCHEME OF
GOVERNMENT. 

FOR THESE REASONS, WE NEED MORE TIME THAN IS AVAILABLE IN THESE
CLOSING DAYS OF THE TERM IN WHICH TO WRITE OUR DISSENTING VIEWS.  WE
WILL FILE OUR DISSENTS DURING THE NEXT TERM OF COURT. 
..END :
















REID V. COVERT 351 U.S. 487 


NO. 701.  ARGUED MAY 3, 1956 - DECIDED JUNE 11, 1956 - REVERSED. 


PURSUANT TO ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE, THE
DEPENDENT WIFE OF A UNITED STATES AIR FORCE SERGEANT WAS TRIED AND
CONVICTED BY A MILITARY COURT-MARTIAL IN ENGLAND FOR THE MURDER OF HER
HUSBAND THERE.  SHE WAS SENTENCED TO LIFE IMPRISONMENT AND BROUGHT TO A
FEDERAL PRISON IN THE UNITED STATES.  ON APPEAL, HER CONVICTION WAS SET
ASIDE, AND SHE WAS TRANSFERRED TO THE DISTRICT OF COLUMBIA JAIL TO
AWAIT RETRIAL BY COURT-MARTIAL AT AN AIR BASE IN WASHINGTON D.C.  WHILE
THERE, SHE PETITIONED THE LOCAL FEDERAL DISTRICT COURT FOR A WRIT OF
HABEAS CORPUS, CLAIMING THAT SHE WAS NOT SUBJECT TO MILITARY
JURISDICTION BECAUSE ARTICLE 2(11) WAS UNCONSTITUTIONAL.  THE COURT
ORDERED THE WRIT TO ISSUE, DIRECTED TO THE SUPERINTENDENT OF THE JAIL,
AND HE APPEALED DIRECTLY TO THIS COURT.  HELD: 

1.  ARTICLE 2(11) OF THE UNIFORM CODE OF MILITARY JUSTICE IS
CONSTITUTIONAL.  KINSELLA V. KRUEGER, ANTE, P. 470.  P. 488. 

2.  AS CUSTODIAN OF A FEDERAL PRISONER, THE SUPERINTENDENT OF THE
JAIL IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES FOR PURPOSES OF 28
U.S.C. SEC. 1252, AND THIS COURT HAS JURISDICTION OF HIS DIRECT APPEAL
UNDER THAT SECTION.  PP. 489-490. 

3.  MILITARY JURISDICTION, ONCE VALIDLY ATTACHED, CONTINUES UNTIL
FINAL DISPOSITION OF THE CASE.  THEREFORE, JURISDICTION OF THE AIR
FORCE TO TRY APPELLEE BY COURT-MARTIAL UNDER ARTICLE 2(11) WAS NOT LOST
BY HER RETURN TO THE UNITED STATES AND DELIVERY TO THE CUSTODY OF
CIVILIAN AUTHORITIES.  TOTH V. QUARLES, 350 U.S. 11, DISTINGUISHED. 
PP. 490-492. 

REID, SUPERINTENDENT, DISTRICT OF COLUMBIA JAIL, V. COVERT. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

MRS. CLARICE COVERT WAS CONVICTED AND SENTENCED TO LIFE IMPRISONMENT
BY A MILITARY COURT-MARTIAL WHICH TRIED HER AT A UNITED STATES AIR
FORCE BASE IN ENGLAND FOR THE MURDER OF HER HUSBAND, AN AIR FORCE
SERGEANT.  SHE WAS BROUGHT TO THE UNITED STATES AND CONFINED IN THE
FEDERAL REFORMATORY FOR WOMEN, ALDERSON, WEST VIRGINIA.  ON APPEAL, THE
UNITED STATES COURT OF MILITARY APPEALS SET ASIDE HER CONVICTION ON
GROUNDS NOT MATERIAL HERE, AND SHE WAS TRANSFERRED TO THE DISTRICT OF
COLUMBIA JAIL TO AWAIT A REHEARING BY COURT-MARTIAL AT BOLLING AIR
FORCE BASE, WASHINGTON, D.C.  WHILE THERE SHE FILED A PETITION FOR A
WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, ALLEGING THAT SHE WAS NOT SUBJECT TO COURT
MARTIAL JURISDICTION BECAUSE ARTICLE 2(11) OF THE UNIFORM CODE OF
MILITARY JUSTICE, 50 U.S.C. SEC. 552, WAS UNCONSTITUTIONAL.  THE
DISTRICT COURT ORDERED THE WRIT TO ISSUE, AND THE GOVERNMENT APPEALED
DIRECTLY TO THIS COURT.  POSTPONING THE QUESTION OF JURISDICTION UNTIL
A HEARING ON THE MERITS, 350 U.S. 985, WE SCHEDULED THIS CASE FOR
ARGUMENT WITH KINSELLA V. KRUEGER, ANTE, P. 470, DECIDED THIS DAY. 

AT THE OUTSET, APPELLEE QUESTIONS THE JURISDICTION OF THIS COURT TO
HEAR THE CASE ON DIRECT APPEAL FROM THE DISTRICT COURT.  FOR REASONS
HEREAFTER STATED, WE CONCLUDE THAT WE HAVE JURISDICTION. 

APPELLEE'S PRINCIPAL ARGUMENT ON THE MERITS IS ANSWERED BY OUR
DECISION IN KINSELLA V. KRUEGER, ANTE, P. 470.  IT IS ALSO CONTENDED,
HOWEVER, THAT WHATEVER JURISDICTION THE MILITARY MAY HAVE HAD TO TRY
MRS. COVERT BY COURT-MARTIAL UNDER ARTICLE 2(11) WAS LOST BY HER RETURN
TO THE UNITED STATES AND DELIVERY TO THE CUSTODY OF CIVILIAN
AUTHORITIES.  WE CONCLUDE THAT IN THE CIRCUMSTANCES OF THIS CASE THIS
ARGUMENT IS WITHOUT MERIT. 

                   I. 

THE QUESTION OF OUR JURISDICTION INVOLVES AN INTERPRETATION OF 28
U.S.C. SEC. 1252: 

"ANY PARTY MAY APPEAL TO THE SUPREME COURT FROM AN INTERLOCUTORY OR
FINAL JUDGMENT, DECREE OR ORDER OF ANY COURT OF THE UNITED STATES ...
HOLDING AN ACT OF CONGRESS UNCONSTITUTIONAL IN ANY CIVIL ACTION, SUIT,
OR PROCEEDING TO WHICH THE UNITED STATES OR ANY OF ITS AGENCIES, OR ANY
OFFICER OR EMPLOYEE THEREOF, AS SUCH OFFICER OR EMPLOYEE, IS A PARTY." 

IT IS CONCEDED THAT, IN ISSUING THE WRIT OF HABEAS CORPUS, THE
DISTRICT COURT HELD AN ACT OF CONGRESS UNCONSTITUTIONAL.  APPELLEE'S
SOLE CONTENTION IS THAT APPELLANT, THE SUPERINTENDENT OF THE DISTRICT
OF COLUMBIA JAIL, DOES NOT COME WITHIN THE REQUIREMENT OF SEC. 1252
THAT "THE UNITED STATES, OR ANY OF ITS AGENCIES, OR ANY OFFICER OR
EMPLOYEE THEREOF, AS SUCH OFFICER OR EMPLOYEE," BE A PARTY. 

THE SUPERINTENDENT IS RESPONSIBLE TO THE DIRECTOR OF THE DEPARTMENT
OF CORRECTIONS OF THE DISTRICT OF COLUMBIA, WHO IN TURN IS SELECTED BY
THE BOARD OF COMMISSIONERS OF THE DISTRICT.  REORGANIZATION ORDER NO.
34, D.C. CODE, 1951, APP. TO TITLE 1, SUPP. III, P. 34.  THE
COMMISSIONERS ARE APPOINTED BY THE PRESIDENT AND ARE OFFICERS OF THE
UNITED STATES UNDER ART. II, SEC. 2, OF THE CONSTITUTION.  THE
SUPERINTENDENT HAS A STATUTORY DUTY TO "RECEIVE AND KEEP IN THE
WASHINGTON ASYLUM AND JAIL ALL PRISONERS COMMITTED THERETO FOR OFFENSES
AGAINST THE UNITED STATES."  D.C. CODE, 1951, SEC. 24-410.  MRS. COVERT
WAS PLACED IN THE DISTRICT JAIL ON ORDERS OF THE AIR FORCE, BECAUSE
THERE ARE NO ACCOMMODATIONS FOR WOMEN PRISONERS AT BOLLING AIR FORCE
BASE, WHERE THE REHEARING OF HER TRIAL BY COURT-MARTIAL IS SCHEDULED. 

IT HAS LONG BEEN SETTLED THAT AN OFFICER, WHILE HOLDING PRISONERS FOR
THE UNITED STATES, IS THE "KEEPER OF THE UNITED STATES," RANDOLPH V.
DONALDSON, 9 CRANCH 76, 86, AND, AS SUCH, IS AN OFFICER OF THE UNITED
STATES.  SINCE APPELLANT WAS REQUIRED TO "RECEIVE AND KEEP" PRISONERS
OF THE UNITED STATES, HE IS, TO THAT EXTENT, AN OFFICER OF THE UNITED
STATES.  IT IS NOT NECESSARY TO SAY, AND WE DO NOT SAY, THAT THE
DISTRICT OF COLUMBIA IN THESE CIRCUMSTANCES IS AN "AGENCY" OF THE
UNITED STATES.  FOR, WHETHER THE GOVERNMENT SHOULD MAINTAIN ITS OWN
JAIL IN THE DISTRICT OF COLUMBIA, OR UTILIZE THE LOCAL FACILITIES, IS
SIMPLY A MATTER OF ADMINISTRATIVE CONVENIENCE, AND IT WOULD DO VIOLENCE
TO THE PURPOSE OF CONGRESS TO PROVIDE A "PROMPT REVIEW OF THE
CONSTITUTIONALITY OF FEDERAL ACTS," FLEMING V. RHODES, 331 U.S. 100,
104, TO INTERPRET SEC. 1252 RESTRICTIVELY.  FOR ALL PRACTICAL PURPOSES,
THE DISTRICT OF COLUMBIA JAIL IS, IN THIS CASE, THE "JAIL OF THE UNITED
STATES," RANDOLPH V. DONALDSON, SUPRA, AND THE SUPERINTENDENT IS ITS
KEEPER.  AS THE CUSTODIAN OF MRS. COVERT, A FEDERAL PRISONER, APPELLANT
IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES FOR PURPOSES OF SEC.
1252. 

                          II. 

ON THE MERITS, MRS. COVERT CONTENDS THAT ARTICLE 2(11) SHOULD BE
RESTRICTED GEOGRAPHICALLY, AND THEREFORE MILITARY JURISDICTION OVER HER
EXPIRED UPON HER RETURN TO THE UNITED STATES.  SHE ALSO CONTENDS THAT,
AS A CIVILIAN, SHE IS NO LONGER SUBJECT TO THE CODE, SINCE SHE IS NOT
IN "CUSTODY OF THE ARMED FORCES" UNDER ARTICLE 2(7). 

AN ENTIRELY DIFFERENT CASE MIGHT BE PRESENTED IF MRS. COVERT HAD
TERMINATED HER STATUS AS A PERSON "ACCOMPANYING THE ARMED FORCES
WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES" BY RETURNING TO
THIS COUNTRY VOLUNTARILY.  BUT THAT IS NOT THIS CASE.  THE ISSUE HERE
IS WHETHER WE SHOULD CREATE AN EXCEPTION TO THE GENERAL RULE THAT
JURISDICTION OF A TRIBUNAL, ONCE ACQUIRED, CONTINUES UNTIL FINAL
DISPOSITION.  AT THE TIME OF HER COURT-MARTIAL IN ENGLAND, MRS. COVERT
WAS SUBJECT TO MILITARY JURISDICTION UNDER ARTICLE 2(11), KINSELLA V.
KRUEGER, ANTE, P. 470.  HER TRANSFER UNDER ORDERS OF THE AIR FORCE WAS
IN FURTHERANCE OF THAT JURISDICTION.  TO ACCEPT MRS. COVERT'S ARGUMENT
WOULD RESULT IN THE ANOMALOUS SITUATION THAT MILITARY JURISDICTION,
VALIDLY EXERCISED UNDER ARTICLE 2(11), WOULD BE DEFEATED BY THE
IMPOSITION OF A SENTENCE UNDER ARTICLE 58, 50 U.S.C. SEC. 639, WHICH
PROVIDES FOR CONFINEMENT "IN ANY PENAL OR CORRECTIONAL INSTITUTION
UNDER THE CONTROL OF THE UNITED STATES, OR WHICH THE UNITED STATES MAY
BE ALLOWED TO USE."  IT WOULD BE UNREASONABLE TO HOLD THAT THE SERVICES
RETAINED JURISDICTION OF MILITARY PRISONERS THAT THEY KEPT IN FOREIGN
COUNTRIES BUT LOST JURISDICTION OF PRISONERS CONFINED IN PENAL
INSTITUTIONS IN THE UNITED STATES. 

NOR IS JURISDICTION DEFEATED BY REVERSAL OF MRS. COVERT'S CONVICTION
AND THE ORDERING OF A REHEARING.  THE MILITARY COURTS HAVE RECOGNIZED
REHEARINGS TO BE BUT CONTINUATIONS OF THE ORIGINAL PROCEEDINGS, UNITED
STATES V. PADILLA, 5 C.M.R. 31, 42; UNITED STATES V. MOORE, 5 C.M.R.
438, 444; UNITED STATES V. MILBOURNE, 15 C.M.R. 527, 528; AND THE
LEGISLATIVE HISTORY OF ARTICLE 63 OF THE CODE BEARS OUT THE FACT THAT
THEY WERE SO INTENDED BY CONGRESS.  H.R.  REP. NO. 491, 81ST CONG., 1ST
SESS. 30; S. REP. NO. 486, 81ST CONG., 1ST SESS. 27. 

WE ALSO NOTE THAT THIS CASE IS CLEARLY DISTINGUISHABLE FROM TOTH V.
QUARLES, 350 U.S. 11.  TOTH HAD RETURNED TO THE UNITED STATES AND BEEN
HONORABLY DISCHARGED MONTHS BEFORE THE SPECIFICATIONS WERE FILED
CHARGING HIM WITH AN OFFENSE COMMITTED WHILE A SOLDIER IN KOREA.  THE
AIR FORCE HAD RELINQUISHED ALL JURISDICTION OVER TOTH BEFORE ANY CHARGE
WAS FILED AGAINST HIM.  BUT HERE, MRS. COVERT WAS CHARGED, TRIED,
CONVICTED, SENTENCED AND IMPRISONED PURSUANT TO A VALID EXERCISE OF
COURT-MARTIAL JURISDICITON WHILE SHE WAS CONCEDEDLY WITHIN THE
PROVISIONS OF ARTICLE 2(11).  WE ARE NOT DECIDING HERE WHEN, IN OTHER
CIRCUMSTANCES, ARTICLE 2(11) JURISDICTION MAY TERMINATE.  IN THIS CASE
WE HOLD ONLY THAT MILITARY JURISDICTION, ONCE VALIDLY ATTACHED,
CONTINUES UNTIL FINAL DISPOSITION OF THE CASE.  REVERSED. 

FOR RESERVATION OF MR. JUSTICE FRANKFURTER, SEE ANTE, P. 481. 

FOR DISSENT OF MR. CHIEF JUSTICE WARREN, MR. JUSTICE BLACK, AND MR.
JUSTICE DOUGLAS, SEE ANTE, P. 485. 
..END :










SOUTHERN PACIFIC CO. V. GILEO 351 U.S. 493 


NO. 257.  ARGUED MAY 1, 1956 - DECIDED JUNE 11, 1956 - 44 CAL. 2D 539,
543, 547, 282 P.2D 872, 875, 877, AFFIRMED - 44 CAL. 2D 881, 882, 282
P.2D 879, 880, CERTIORARI DISMISSED. 


1.  AN EMPLOYEE OF AN INTERSTATE RAILROAD WHO IS INJURED WHILE ENGAGED
IN BUILDING NEW CARS WHICH ARE TO BE USED BY THE RAILROAD AND ITS
SUBSIDIARY IN INTERSTATE COMMERCE IS WITHIN THE COVERAGE AND ENTITLED
TO THE BENEFITS OF THE FEDERAL EMPLOYERS' LIABILITY ACT, AS AMENDED IN
1939.  PP. 496-500. 

(A)  UNDER THE 1939 AMENDMENT OF SEC. 1 OF THE ACT, THE TEST OF
COVERAGE IS WHETHER ANY PART OF THE EMPLOYEE'S DUTIES AS A RAILROAD
EMPLOYEE FURTHERS INTERSTATE COMMERCE OR IN ANY WAY DIRECTLY OR CLOSELY
AND SUBSTANTIALLY AFFECTS SUCH COMMERCE - NOT WHETHER THE EMPLOYEE IS
ENGAGED IN "NEW CONSTRUCTION."  PP. 498-499. 

2.  AN EMPLOYEE OF AN INTERSTATE RAILROAD WHO WAS EMPLOYED AS A WHELL
MOLDER IN THE RAILROAD'S WHEEL FOUNDRY, WHERE WORN WHEELS ARE SENT FROM
THE RAILROAD'S LINES FOR REMOLDING AND EVENTUAL RETURN TO THE
RAILROAD'S ROLLING STOCK, IS WITHIN THE COVERAGE AND ENTITLED TO THE
BENEFITS OF THE FEDERAL EMPLOYERS' LIABILITY ACT, AS AMENDED IN 1939. 
P. 500. 

3.  AN EMPLOYEE OF AN INTERSTATE RAILROAD WHO WAS INJURED WHILE
LAYING RAILS IN A RETARDER YARD, WHICH THE RAILROAD WAS CONSTRUCTING
FOR THE PURPOSE OF FACILITATING THE MOVEMENT OF FREIGHT TRAINS IN
INTERSTATE COMMERCE AND WHICH WAS OPENED TO INTERSTATE TRAFFIC FOUR
MONTHS AFTER THE EMPLOYEE WAS INJURED, IS WITHIN THE COVERAGE AND
ENTITLED TO THE BENEFITS OF THE FEDERAL EMPLOYERS' LIABILITY ACT, AS
AMENDED IN 1939.  PP. 500-501. 

4.  A DECISION OF THE SUPREME COURT OF CALIFORNIA IN A CASE UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT, THE EFFECT OF WHICH IS TO REMAND THE
CASE TO THE TRIAL COURT, WHERE THE ISSUES OF NEGLIGENCE AND DAMAGES
REMAIN TO BE TRIED, IS NOT A FINAL JUDGMENT REVIEWABLE BY THIS COURT
UNDER 28 U.S.C. SEC. 1257.  PP. 495-496. 

SOUTHERN PACIFIC CO. V. GILEO ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THESE FIVE CASES PRESENT QUESTIONS OF THE EXTENT OF COVERAGE OF THE
FEDERAL EMPLOYERS' LIABILITY ACT, AS AMENDED.  (FN1) 

PETITIONER, AN INTERSTATE COMMON CARRIER BY RAILROAD, OWNS AND
OPERATES A LARGE CARSHOP, KNOWN AS SHOP NO. 9, AT SACRAMENTO,
CALIFORNIA.  THIS SHOP CONTAINS A DEPARTMENT FOR REPAIR OF PETITIONER'S
CARS TEMPORARILY REMOVED FROM SERVICE AND A DEPARTMENT ENGAGED IN THE
CONSTRUCTION OF NEW CARS FOR USE IN INTERSTATE COMMERCE BY PETITIONER
AND A SUBSIDIARY. 

RESPONDENTS GILEO, EUFRAZIA AND EELK WERE EMPLOYED BY PETITIONER IN
SHOP NO. 9.  GILEO WORKED ON REPAIR OF PETITIONER'S CARS ALREADY IN
SERVICE FOR ALMOST 10 YEARS PRIOR TO HIS TRANSFER TO NEW CAR
CONSTRUCTION 5 MONTHS BEFORE HE WAS INJURED.  EUFRAZIA DID REPAIR WORK
FOR 9 MONTHS BEFORE HE WAS ASSIGNED TO NEW CAR CONSTRUCTION A MONTH
PRIOR TO HIS INJURY.  EELK HAD WORKED A MONTH ON REPAIRS, WAS
TRANSFERRED TO NEW CAR CONSTRUCTION FOR 5 WEEKS, WAS REASSIGNED TO
REPAIR WORK FOR A MONTH AND HAD BEEN BACK ON NEW CAR CONSTRUCTION FOR 3
MONTHS WHEN HE INCURRED HIS INJURY.  THUS, ALL THREE OF THESE
RESPONDENTS HAD AT ONE TIME WORKED ON REPAIR JOBS IN SHOP NO. 9, BUT
THERE IS NO DISPUTE THAT THEY WERE ENGAGED EXCLUSIVELY IN NEW CAR
CONSTRUCTION WHEN THEIR INJURIES WERE INCURRED. 

RESPONDENTS BROUGHT SEPARATE SUITS AGAINST PETITIONER FOR RECOVERY
UNDER THE F.E.L.A.  RESPONDENT GILEO SUED IN THE SUPERIOR COURT FOR THE
CITY AND COUNTY OF SAN FRANCISCO, AND RESPONDENTS EUFRAZIA AND EELK
SUED IN THE SUPERIOR COURT FOR THE COUNTY OF SACRAMENTO.  IN ALL THREE
SUITS, PETITIONER CLAIMED THAT THE F.E.L.A. DID NOT APPLY BECAUSE
NEITHER IT NOR RESPONDENTS WERE ENGAGED IN INTERSTATE COMMERCE AND THAT
THEREFORE THE COURTS WERE WITHOUT JURISDICTION TO ENTERTAIN THE
ACTIONS, THE EXCLUSIVE REMEDY FOR INJURED EMPLOYEES IN THESE
CIRCUMSTANCES RESTING WITH THE INDUSTRIAL ACCIDENT COMMISSION UNDER THE
CALIFORNIA WORKMEN'S COMPENSATION ACT.  THIS CHALLENGE TO THE
JURISDICTION OF THE COURT WAS REJECTED IN THE GILEO CASE, THE COURT
RULING AS A MATTER OF LAW THAT THE F.E.L.A.  GOVERNED THE SITUATION
BEFORE IT.  PETITIONER HAVING STIPULATED THE ISSUES OF NEGLIGENCE AND
THE AMOUNT OF DAMAGES, JUDGMENT WAS ENTERED FOR GILEO.  THE TRIAL COURT
IN THE EUFRAZIA AND EELK CASES RULED IN FAVOR OF PETITIONER'S
CONTENTION THAT IT LACKED JURISDICTION BECAUSE THE F.E.L.A. WAS NOT
APPLICABLE, AND JUDGMENT WAS ENTERED FOR PETITIONER BEFORE TRIAL WAS
HAD ON THE ISSUES OF NEGLIGENCE AND DAMAGES.  THE SUPREME COURT OF
CALIFORNIA HELD, IN SEPARATE DECISIONS, THAT THE ACT APPLIED TO EACH OF
THE RESPONDENTS.  (FN2)  WE GRANTED CERTIORARI, 350 U.S. 818, BECAUSE
THE CASES INVOLVE INTERPRETATION OF AN IMPORTANT FEDERAL STATUTE
GOVERNING RAILROAD EMPLOYER OBLIGATIONS TO ITS INJURED EMPLOYEES. 

IN THE EUFRAZIA AND EELK CASES, THE SUPREME COURT OF CALIFORNIA
SIMPLY ENTERED AN ORDER REVERSING THE DECISIONS OF THE TRIAL COURT. 
UNLIKE GILEO, PETITIONER DID NOT STIPULATE WITH RESPECT TO THE ISSUES
OF NEGLIGENCE AND DAMAGES.  THERE WERE NO TRIALS OF THESE ISSUES, AND,
UNDER CALIFORNIA PRACTICE, THE EFFECT OF THE SUPREME COURT OF
CALIFORNIA'S UNQUALIFIED REVERSAL IS TO REMAND THE CASES TO THE TRIAL
COURT.  SEE GOSPEL ARMY V. LOS ANGELES, 331 U.S. 543, 546.  SINCE THE
ISSUES OF NEGLIGENCE AND DAMAGES REMAIN TO BE TRIED, THERE IS NO FINAL
JUDGMENT IN THE HIGHEST COURT OF THE STATE, AND THIS COURT, THEREFORE,
LACKS JURISDICTION TO REVIEW THE EUFRAZIA AND EELK CASES.  28 U.S.C.
SEC. 1257.  WE THEREFORE DISMISS THE WRITS IN THOSE TWO CASES. 

THE SOLE QUESTION WHICH THE GILEO CASE PRESENTS IS WHETHER OR NOT AN
EMPLOYEE OF AN INTERSTATE RAIL CARRIER WHO IS INJURED WHILE PERFORMING
WORK ON NEW CARS TO BE USED IN INTERSTATE COMMERCE BY THE CARRIER AND
ITS SUBSIDIARY CAN MAINTAIN AN ACTION FOR DAMAGES AGAINST HIS EMPLOYER
UNDER THE F.E.L.A., AS AMENDED. 

ORIGINALLY PROVIDED THAT "EVERY COMMON CARRIER BY RAILROAD WHILE
ENGAGING IN COMMERCE" BETWEEN THE STATES "SHALL BE LIABLE TO DAMAGES TO
ANY PERSON SUFFERING INJURY WHILE HE IS EMPLOYED BY SUCH CARRIER IN
SUCH COMMERCE" FOR INJURY OR DEATH RESULTING WHOLLY OR PARTLY FROM THE
NEGLIGENCE OF THE CARRIER.  (FN3)  THIS COURT EARLY CONSTRUED THE
STATUTE TO REQUIRE THAT THE EMPLOYEE BE "AT THE TIME OF THE INJURY
ENGAGED IN INTERSTATE TRANSPORTATION OR IN WORK SO CLOSELY RELATED TO
IT AS TO BE PRACTICALLY A PART OF IT" IN ORDER TO QUALIFY FOR COVERAGE
UNDER THE ACT.  SHANKS V. DELAWARE, L.&W.R. CO., 239 U.S. 556, 558. 
LATER, IN RAYMOND V. CHICAGO, M. & ST. P.R.  CO., 243 U.S. 43, 45, AND
NEW YORK CENTRAL R. CO. V. WHITE, 243 U.S. 188, 192, THIS COURT HELD
THAT EMPLOYEES ENGAGED IN OR CONNECTED WITH NEW CONSTRUCTION FOR THEIR
RAILROAD EMPLOYERS WERE NOT ENGAGED IN INTERSTATE COMMERCE WITHIN THE
MEANING OF THE ACT AND WERE THEREFORE NOT ENTITLED TO ITS BENEFITS. 
SEE ALSO PEDERSEN V. DELAWARE, L.&W.R. CO., 229 U.S. 146, 152.  THE
"MOMENT OF INJURY" AND "NEW CONSTRUCTION" DOCTRINES WERE THE SOURCE OF
MUCH CONFUSION TO THE RAILROADS, THEIR EMPLOYEES AND THE COURTS, WITH
THE RESULT THAT THE REPORTS WERE REPLETE WITH DECISIONS DRAWING VERY
FINE DISTINCTIONS IN DETERMINING WHETHER AN EMPLOYEE WAS ENGAGED IN
INTERSTATE COMMERCE WITHIN THE CONTEMPLATION OF THE ACT SO AS TO
ENTITLE HIM TO BRING SUIT FOR DAMAGES THEREUNDER FOR INJURIES INCURRED
WHILE IN THE CARRIER'S EMPLOY.  THE UNCERTAINTY HAD GROWN TO SUCH
PROPORTIONS THAT CONGRESS, IN 1939, ADDED THE FOLLOWING PARAGRAPH TO
SEC. 1 OF THE ACT:  (FN4) 

"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 ACT, BE CONSIDERED
AS BEING EMPLOYED BY SUCH CARRIER IN SUCH COMMERCE AND SHALL BE
CONSIDERED AS ENTITLED TO THE BENEFITS OF THIS ACT AND OF AN ACT
ENTITLED 'AN ACT RELATING TO THE LIABILITY OF COMMON CARRIERS BY
RAILROAD TO THEIR EMPLOYEES IN CERTAIN CASES' (APPROVED APRIL 22,
1908), AS THE SAME HAS BEEN OR MAY HEREAFTER BE AMENDED." 

THE SENATE, IN ITS REPORT ON THE AMENDMENTS TO THE ACT, CHARACTERIZED
ONE AIM OF THE AMENDMENT IN THIS MANNER:  "1.  IT BROADENS AND
CLARIFIES THE LAW IN ITS APPLICATION TO EMPLOYEES WHO MAY BE KILLED OR
INJURED WHILE IN THE SERVICE OF A RAILROAD COMPANY ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE."  (FN5)  PETITIONER CONCEDES THAT THE
1939 AMENDMENT ABOLISHES THE "MOMENT OF INJURY" RULE OF THE SHANKS
CASE, SUPRA.  BUT IT VIGOROUSLY CONTENDS THAT, BECAUSE CONGRESS, IN
AMENDING THE ACT, DID NOT ALTER THE FIRST PARAGRAPH OF SEC. 1, IT IS
LIABLE ONLY FOR EMPLOYEE INJUIRES INCURRED WHILE THE RAILROAD IS
"ENGAGING IN COMMERCE" BETWEEN THE STATES.  IT IS ARGUED THAT, SINCE
THE RAILROAD WAS HERE ENGAGED IN THE CONSTRUCTION OF NEW CARS, WHICH
ACTIVITY, UNDER THE "NEW CONSTRUCTION" DOCTRINE OF RAYMOND AND WHITE,
SUPRA, IS NOT COMMERCE BETWEEN THE STATES, EMPLOYEES INJURED WHILE
ENGAGING IN NEW CONSTRUCTION ARE NOT COVERED BY THE 1939 AMENDMENT. 
WITH THIS WE CANNOT AGREE. 

THE 1939 AMENDMENT TO SEC. 1 OF THE ACT PROVIDES THAT "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
DESCRIBED IN THE FIRST PARAGRAPH OF SEC. 1, "SHALL, FOR THE PURPOSES OF
THIS ACT, BE CONSIDERED AS BEING EMPLOYED BY SUCH CARRIER IN SUCH
COMMERCE AND SHALL BE CONSIDERED AS ENTITLED TO THE BENEFITS" OF THE
ACT.  THIS AMENDATORY LANGUAGE MAKES IT PLAIN THAT IF A RAILROAD
EMPLOYEE EITHER FURTHERS INTERSTATE COMMERCE IN THE PERFORMANCE OF ANY
PART OF HIS DUTIES OR IN ANY WAY "DIRECTLY OR CLOSELY AND
SUBSTANTIALLY" AFFECTS SUCH COMMERCE, CONGRESS HAS PLACED SUCH AN
EMPLOYEE ON AN EQUAL FOOTING, FOR PURPOSES OF COVERAGE UNDER THE ACT,
WITH THOSE EMPLOYEES WHO, PRIOR TO THE 1939 AMENDMENT, WERE HELD TO BE
EMPLOYED BY THE RAILROADS IN COMMERCE BETWEEN THE STATES.  THEREFORE,
IN DETERMINING WHETHER RESPONDENT GILEO IS ENTITLED TO THE BENEFITS OF
THE F.E.L.A., THE PERTINENT INQUIRY IS NOT WHETHER "NEW CONSTRUCTION"
IS INTERSTATE COMMERCE UNDER THE TEST OF RAYMOND AND WHITE.  RATHER,
THE CRUCIAL QUESTION IS WHETHER ANY PART OF GILEO'S DUTIES AS A
RAILROAD EMPLOYEE FURTHERS INTERSTATE COMMERCE OR IN ANY WAY DIRECTLY
OR CLOSELY AND SUBSTANTIALLY AFFECTS SUCH COMMERCE. 

PETITIONER IS ENGAGED IN THE MANUFACTURE OF ITS OWN RAILROAD CARS FOR
USE IN PERFORMING ITS TRANSPORTATION FUNCTION IN INTERSTATE COMMERCE. 
SUCH NEW CONSTRUCTION IS AN INTEGRAL ELEMENT IN THE CARRIER'S TOTAL
OPERATIONS, AND IT FOLLOWS THAT WORKMEN EMPLOYED TO BUILD THESE NEW
CARS PERFORM DUTIES WHICH ARE IN "FURTHERANCE" OF INTERSTATE COMMERCE. 
FURTHERMORE, IN CARRYING OUT THESE DUTIES, SUCH EMPLOYEES AFFECT
INTERSTATE COMMERCE "DIRECTLY OR CLOSELY AND SUBSTANTIALLY."  FAILURE
TO PERFORM THEIR DUTIES WOULD PRECLUDE DELIVERY TO THE RAILROAD OF CARS
WHICH IT CONSIDERS ESSENTIAL TO ITS TRANSPORTATION NEEDS AND WOULD
SUBSTANTIALLY IMPEDE THE CARRIER'S PERFORMANCE OF ITS TRANSPORTATION
FUNCTION AND THUS THE INTERSTATE COMMERCE IN WHICH IT IS ENGAGED.  THIS
INTERPRETATION IS CONSISTENT WITH THE LETTER AND SPIRIT OF THE 1939
AMENDMENT, WHICH CONGRESS ENACTED TO CURE THE EVILS OF HYPERTECHNICAL
DISTINCTIONS WHICH HAD DEVELOPED IN OVER 30 YEARS OF F.E.L.A.
LITIGATION.  WHATEVER JUSTIFICATION THERE MAY HAVE BEEN BEFORE THE
AMENDMENT FOR HOLDING THAT EMPLOYEES WORKING ON REPAIRS OF RAILROAD'S
INSTRUMENTALITIES WERE ENGAGED IN INTERSTATE COMMERCE AND THEREFORE
ENTITLED TO THE BENEFITS OF THE ACT, PEDERSEN V. DELAWARE, L.&W.R. CO.,
SUPRA, WHILE THOSE WHO WERE WORKING ON CONSTRUCTION OF NEW RAILROAD
FACILITIES WERE NOT ENGAGED IN INTERSTATE COMMERCE AND THEREFORE WERE
NOT COVERED BY THE ACT, RAYMOND AND WHITE, SUPRA, HAS BEEN SWEPT AWAY
BY THE 1939 AMENDMENT.  THIS COURT RECENTLY REJECTED THE "NEW
CONSTRUCTION" DOCTRINE IN DETERMINING WHETHER AN EMPLOYEE IS "ENGAGED
IN COMMERCE" WITHIN THE MEANING OF A LIKE PROVISION IN THE FAIR LABOR
STANDARDS ACT.  MITCHELL V. C.W. VOLLMER & CO., 349 U.S. 427.  WE HOLD
THAT SEC. 1 OF THE F.E.L.A., AS AMENDED, COVERS RESPONDENT GILEO. 

RESPONDENT ARANDA WAS INJURED WHILE EMPLOYED BY PETITIONER AS A WHEEL
MOLDER IN ITS WHEEL FOUNDRY AT SACRAMENTO, CALIFORNIA.  THERE WHEELS
ARE MADE TO BE JOINED TO AXLES WHICH FORM THE TRUCK BASE FOR THE
PETITIONER'S CARS, BOTH NEW AND THOSE ALREADY IN INTERSTATE SERVICE. 
SINCE WHEELS WHICH WEAR OUT CANNOT BE REPAIRED, THEY MUST BE RECAST OR
REMOLDED AND, AS A RESULT, WORN WHEELS ARE CONTINUALLY SHIPPED FROM ALL
POINTS ON PETITIONER'S RAIL NETWORK TO ITS SACRAMENTO FOUNDRY FOR
REMOLDING AND EVENTUAL RETURN TO PETITIONER'S ROLLING STOCK.  A CERTAIN
LEVEL OF INVENTORY IS INDISPENSABLE TO EFFECTIVE UTILIZATION OF THIS
MODE OF OPERATION.  THE OPERATION ITSELF IS A VITAL LINK IN THE CHAIN
OF PETITIONER'S FUNCTION AS AN INTERSTATE RAIL CARRIER.  IT IS THUS
PLAIN THAT ARANDA'S DUTIES AS A WHEEL MOLDER BOTH SERVED TO FURTHER
INTERSTATE COMMERCE AND DIRECTLY OR CLOSELY AND SUBSTANTIALLY AFFECTED
SUCH COMMERCE.  WE THEREFORE HOLD THAT HE IS ENTITLED TO THE BENEFITS
OF THE ACT. 

RESPONDENT MORENO WAS EMPLOYED AS A LABORER AND WAS INJURED WHILE
LAYING RAILS IN A RETARDER YARD WHICH PETITIONER WAS CONSTRUCTING FOR
THE PURPOSE OF FACILITATING THE MOVEMENT OF FREIGHT TRAINS IN
INTERSTATE COMMERCE BY USE OF A NEW "SWITCHING" METHOD.  THE YARD WAS
TO BE USED IN CONNECTION WITH PETITIONER'S MAIN LINE OF TRACK.  IT WAS
OPENED TO INTERSTATE TRAFFIC 4 MONTHS AFTER MORENO WAS INJURED. 
PASSAGE OF THE 1939 AMENDMENT MAKES UNNECESSARY INDULGENCE IN NICE
DISTINCTIONS RELATING TO WHETHER MORENO WAS ENGAGED IN NEW CONSTRUCTION
OR CONSTRUCTION WHICH, ALTHOUGH NEW, WAS MERELY A SUBSTITUTE FOR
PETITIONER'S EXISTING METHOD OF SWITCHING CARS.  CF. AGOSTINO V.
PENNSYLVANIA R. CO., 50 F. SUPP. 726.  IN VIEW OF WHAT WE HAVE SAID
ABOVE, IT IS CLEAR THAT MORENO, IN THE PERFORMANCE OF HIS DUTIES, WAS
FURTHERING INTERSTATE COMMERCE AND THAT HIS WORK DIRECTLY OR CLOSELY
AND SUBSTANTIALLY AFFECTED COMMERCE, WITHIN THE MEANING OF THE 1939
AMENDMENT. 

THE JUDGMENTS IN GILEO V. SOUTHERN PACIFIC CO., ARANDA V. SOUTHERN
PACIFIC CO., MORENO V. SOUTHERN PACIFIC CO., ARE AFFIRMED. 

THE WRITS IN EUFRAZIA V. SOUTHERN PACIFIC CO., EELK V. SOUTHERN
PACIFIC CO., ARE DISMISSED. 

FN1  35 STAT. 65, AS AMENDED, 53 STAT. 1404, 45 U.S.C. SEC. 51. 

FN2  GILEO V. SOUTHERN PACIFIC CO., 44 CAL. 2D 539, 282 P.2D 872;
EUFRAZIA V. SOUTHERN PACIFIC CO., 44 CAL. 2D 881, 282 P.2D 879; EELK V.
SOUTHERN PACIFIC CO., 44 CAL. 2D 882, 282 P.2D 880.  THE DECISIONS
BELOW HOLDING THE TWO REMAINING RESPONDENTS COVERED BY THE ACT ARE
REPORTED IN ARANDA V. SOUTHERN PACIFIC CO., 44 CAL. 2D 543, 282 P.2D
875, AND MORENO V. SOUTHERN PACIFIC CO., 44 CAL. 2D 547, 282 P.2D 877. 
FN3  35 STAT. 65: 

"THAT 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." 

FN4  53 STAT. 1404. 

FN5  S. REP. NO. 661, 76TH CONG., 1ST SESS. 2. 

MR. JUSTICE HARLAN CONCURS IN THE RESULT. 

MR. JUSTICE REED AND MR. JUSTICE FRANKFURTER AGREE THAT THE WRITS IN
SOUTHERN PACIFIC CO. V. EUFRAZIA AND SOUTHERN PACIFIC CO. V. EELK MUST
BE DISMISSED BECAUSE THEY WERE IMPROVIDENTLY GRANTED FOR WANT OF FINAL
STATE COURT JUDGMENTS.  REGARDING SOUTHERN PACIFIC CO. V. GILEO,
SOUTHERN PACIFIC CO. V. ARANDA, AND SOUTHERN PACIFIC CO. V. MORENO,
THEY DISAGREE WITH THE COURT'S THEORY IN APPLYING THE ACT OF 1939, FOR
THE REASONS SET FORTH IN MR. JUSTICE FRANKFURTER'S DISSENT IN REED V.
PENNSYLVANIA R. CO., POST, P. 508. 
..END :





REED V. PENNSYLVANIA RAILROAD CO. 351 U.S. 502 


NO. 621.  ARGUED MAY 1, 1956 - DECIDED JUNE 11, 1956 - 227 F.2D 810,
REVERSED. 


PETITIONER IS A CLERICAL EMPLOYEE OF AN INTERSTATE RAILROAD WHOSE
DUTIES CONSIST OF FILING ORIGINAL TRACINGS OF ALL OF THE CARRIER'S
ROLLING STOCK, EQUIPMENT AND STRUCTURES, FROM WHICH TRACINGS BLUEPRINTS
ARE MADE.  WITHOUT THESE DOCUMENTS, MAINTENANCE OF THE CARRIER'S
OPERATING SYSTEM WOULD BE IMPOSSIBLE.  PETITIONER WAS INJURED IN HER
OFFICE WHEN A CRACKED WINDOW PANE BLEW IN UPON HER.  HELD:  PETITIONER
IS WITHIN THE COVERAGE OF THE FEDERAL EMPLOYER'S LIABILITY ACT, AS
AMENDED IN 1939; AND THE FEDERAL DISTRICT COURT HAS JURISDICTION OF HER
SUIT UNDER THE ACT.  PP. 503-508. 

(A)  THE TEST FOR COVERAGE UNDER THE AMENDED ACT IS NOT WHETHER THE
EMPLOYEE IS ENGAGED IN INTERSTATE TRANSPORTATION, BUT WHETHER WHAT HE
DOES IN ANY WAY FURTHERS OR SUBSTANTIALLY AFFECTS INTERSTATE
TRANSPORTATION.  P. 505. 

(B)  THE ISSUE IN THIS CASE CANNOT BE RESOLVED IN TERMS OF WHETHER OR
NOT CLERICAL EMPLOYEES AS A CLASS ARE EXCLUDED FROM THE BENEFITS OF THE
ACT.  PP. 505-506. 

(C)  PETITIONER IS EMPLOYED IN INTERSTATE COMMERCE WITHIN THE MEANING
OF THE 1939 AMENDMENT TO SEC. 1 OF THE ACT.  PP. 506-507. 

(D)  THE PERFORMANCE BY PETITIONER OF HER DUTIES IS IN "FURTHERANCE
OF INTERSTATE COMMERCE AND HAS A CLOSE AND SUBSTANTIAL EFFECT UPON THE
RAILROAD'S INTERSTATE ACTIVITIES.  P. 507. 

REED V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION WE HAVE FOR DECISION HERE IS WHETHER PETITIONER, A
CLERICAL EMPLOYEE OF RESPONDENT RAILROAD, IS WITHIN THE COVERAGE OF THE
FEDERAL EMPLOYERS' LIABILITY ACT.  SEC. 1, 35 STAT. 65, AS AMENDED, 53
STAT. 1404, 45 U.S.C. SEC. 51.  PETITIONER IS EMPLOYED ENTIRELY IN
RESPONDENT'S OFFICE BUILDING IN PHILADELPHIA.  HER DUTIES CONSIST OF
FILING ORIGINAL TRACINGS OF ALL OF RESPONDENT'S ENGINES, CARS, PARTS,
TRACKS, BRIDGES, AND OTHER STRUCTURES, FROM WHICH BLUEPRINTS OF THOSE
ITEMS ARE MADE.  THERE ARE SOME 325,000 TRACINGS ON FILE IN THE OFFICE
IN WHICH PETITIONER WORKS.  WHENEVER AN ORDER FOR BLUEPRINTS COMES IN
FROM ANYWHERE IN RESPONDENT'S SYSTEM, IT IS PETITIONER'S RESPONSIBILITY
TO FILL THE ORDER BY SECURING THE CORRECT TRACINGS FROM THE FILES. 
THESE SHE TAKES TO THE BLUEPRINT MAKER IN THE SAME OFFICE BUILDING. 
AFTER THE BLUEPRINTS ARE MADE, IT IS PETITIONER'S FURTHER DUTY TO
RETURN THE ORIGINAL TRACINGS TO THE APPROPRIATE FILE.  ABOUT 67% OF THE
BLUEPRINTS SO MADE ARE SENT TO POINTS OUTSIDE PENNSYLVANIA.  THE FILES
WHICH PETITIONER ATTENDS ARE THE SOLE DEPOSITORY OF THE ORIGINAL
TRACINGS OF THE STRUCTURAL DETAILS OF ALL OF RESPONDENT'S ROLLING
STOCK, TRACKAGE, AND OTHER EQUIPMENT AND INSTALLATIONS, AND AS SUCH
REPRESENT A FUND OF DOCUMENTS WITHOUT WHICH MAINTENANCE OF THE
OPERATING SYSTEM WOULD BE IMPOSSIBLE. 

PETITIONER WAS INJURED WHEN A CRACKED WINDOW PANE IN HER OFFICE BLEW
IN UPON HER.  SHE BROUGHT SUIT FOR PERSONAL INJURY UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  ON RESPONDENT'S MOTION TO DISMISS, THE
DISTRICT COURT HELD THAT PETITIONER WAS NOT WITHIN THE COVERAGE OF SEC.
1 OF THE ACT AND, THERE BEING NO DIVERSITY OF CITIZENSHIP BETWEEN THE
PARTIES, DISMISSED THE COMPLAINT FOR LACK OF JURISDICTION.  THE COURT
OF APPEALS AFFIRMED.  227 F.2D 810.  WE GRANTED CERTIORARI BECAUSE OF
THE IMPORTANCE OF THE QUESTION PRESENTED IN THE ADMINISTRATION OF THE
ACT.  350 U.S. 965. 

AS ORIGINALLY ENACTED, SEC. 1 PROVIDED THAT EVERY RAILROAD, "WHILE
ENGAGING" IN INTERSTATE COMMERCE: 

"SHALL BE LIABLE IN DAMAGES TO ANY PERSON SUFFERING INJURY WHILE HE
IS EMPLOYED BY SUCH CARRIER IN SUCH COMMERCE  ...  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."  35 STAT. 65. 

A FURTHER PARAGRAPH WAS ADDED TO THE SECTION IN 1939, AND IT IS CLEAR
THAT TWO SPECIFIC PROBLEMS WHICH THE AMENDMENT SOUGHT AT LEAST TO
REMEDY WERE THE RESULTS OF THIS COURT'S HOLDINGS THAT, AT THE MOMENT OF
HIS INJURY, THE EMPLOYEE AS WELL AS THE RAILROAD HAD TO BE ENGAGED IN
INTERSTATE COMMERCE IN ORDER TO COME WITHIN THE COVERAGE OF SEC. 1, AND
THAT EMPLOYEES ENGAGED IN CONSTRUCTION OF NEW FACILITIES WERE NOT
COVERED.  S. REP. NO. 661, 76TH CONG., 1ST SESS. 2-3; SOUTHERN PACIFIC
CO. V. GILEO, DECIDED TODAY, ANTE, P. 493.  THE AMENDMENT TOOK THE FORM
OF AN EXPANDED DEFINITION OF "PERSON  ...  EMPLOYED" IN INTERSTATE
COMMERCE.  THE AMENDMENT READS: 

"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 ACT, BE CONSIDERED
AS BEING EMPLOYED BY SUCH CARRIER IN SUCH COMMERCE AND SHALL BE
CONSIDERED AS ENTITLED TO THE BENEFITS OF THIS ACT  ...  ."  53 STAT.
1404. 

NO ARGUMENT IS MADE THAT CONGRESS COULD NOT CONSTITUTIONALLY INCLUDE
PETITIONER WITHIN THE COVERAGE OF THE ACT.  THE ARGUMENT IS THAT THE
AMENDMENT WAS NARROWLY DRAWN TO REMEDY SPECIFIC EVILS AND THAT TO
CONSTRUE IT TO INCLUDE PETITIONER WOULD AMOUNT TO INCLUSION IN THE ACT
OF VIRTUALLY ALL RAILROAD EMPLOYEES - A RESULT WHICH RESPONDENT ASSUMES
IS UNINTENDED AND UNDESIRABLE.  THE ARGUMENT TAKES SEVERAL FORMS. 
FIRST, IT IS SAID THAT "COMMERCE" IN THE ACT MEANS ONLY TRANSPORTATION
AND THAT PETITIONER IS NOT EMPLOYED IN TRANSPORTATION.  SEE SHANKS V.
DELAWARE, L.&W.R. CO., 239 U.S. 556, 559-560.  BUT THE INTERSTATE
COMMERCE IN WHICH RESPONDENT IS ENGAGED IS INTERSTATE TRANSPORTATION. 
IF "ANY PART" OF PETITIONER'S DUTIES IS IN "FURTHERANCE" OF OR
SUBSTANTIALLY AFFECTS INTERSTATE TRANSPORTATION.  THE TEST FOR COVERAGE
UNDER THE AMENDMENT IS NOT WHETHER THE EMPLOYEE IS ENGAGED IN
TRANSPORTATION, BUT RATHER WHETHER WHAT HE DOES IN ANY WAY FURTHERS OR
SUBSTANTIALLY AFFECTS TRANSPORTATION.  NOR CAN WE RESOLVE THE ISSUE
PRESENTED HERE IN TERMS OF WHETHER OR NOT CLERICAL EMPLOYEES AS A CLASS
ARE EXCLUDED FORM THE BENEFITS OF THE STATUTE.  THE 1939 AMENDMENT WAS
DESIGNED TO OBLITERATE FINE DISTINCTIONS AS TO COVERAGE BETWEEN
EMPLOYEES WHO, FOR THE PURPOSE OF THIS REMEDIAL LEGISLATION, SHOULD BE
TREATED ALIKE.  THERE IS NO MEANINGFUL DISTINCTION, IN TERMS OF WHETHER
THE EMPLOYEE'S DUTIES ARE CLERICAL OR NOT, BETWEEN PETITIONER AND, FOR
ILLUSTRATION, AN ASSISTANT CHIEF TIMEKEEPER, STRAUB V. READING CO., 220
F.2D 177, OR A MESSENGER BOY CARRYING WAYBILLS AND GRAIN ORDERS BETWEEN
SEPARATE LOCAL OFFICES AND FREIGHT STATIONS, BOWERS V. WABASH R. CO.,
246 S.W.2D 535, OR A LUMBER INSPECTOR HURT WHILE INSPECTING TIES AT A
LUMBER COMPANY, ERICKSEN V. SOUTHERN PACIFIC CO., 39 CAL. 2D 374, 246
P.2D 642 - ALL OF WHOM HAVE BEEN HELD COVERED BY THE 1939 AMENDMENT. 
SEE ALSO LILLIE V. THOMPSON, 332 U.S. 459.  NOR ARE THE BENEFITS OF THE
ACT LIMITED TO THOSE EXPOSED TO THE SPECIAL HAZARDS OF THE RAILROAD
INDUSTRY.  THE ACT HAS NOT BEEN SO INTERPRETED, AND THE 1939 AMENDMENT
SPECIFICALLY AFFORDS PROTECTION TO "ANY EMPLOYEE" WHOSE DUTIES BRING
HIM WITHIN THAT AMENDMENT.  THERE IS NO BASIS IN THE LANGUAGE OF SEC. 1
FOR CONFINING LIABILITY OF THE RAILROAD SO AS TO EXCLUDE ANY CLASS OF
RAILROAD EMPLOYEES AS A CLASS.   THE BENEFITS OF THE ACT ARE NOT
LIMITED TO THOSE WHO HAVE CINDERS IN THEIR HAIR, SOOT ON THEIR FACES,
OR CALLOUSES ON THEIR HANDS.  SECTION 1 CANNOT BE INTERPRETED TO
EXCLUDE PETITIONER FROM ITS BENEFITS WITHOUT FURTHER CONSIDERATION OF
THE FUNCTION SHE PERFORMS AND ITS IMPACT ON INTERSTATE COMMERCE. 

WE THINK THAT THE PRESENT PETITIONER IS EMPLOYED BY THE RESPONDENT IN
INTERSTATE COMMERCE WITHIN THE MEANING OF THE 1939 AMENDMENT TO SEC.
1.  ALTHOUGH THE AMENDMENT MAY HAVE BEEN PROMPTED BY A SPECIFIC DESIRE
TO OBVIATE CERTAIN COURT-MADE RULES LIMITING COVERAGE, THE LANGUAGE
USED GOES FAR BEYOND THAT NARROW OBJECTIVE.  IT EVINCES A PURPOSE TO
EXPAND COVERAGE SUBSTANTIALLY AS WELL AS TO AVOID NARROW DISTINCTIONS
IN DECIDING QUESTIONS OF COVERAGE.  UNDER THE AMENDMENT, IT IS THE
"DUTIES" OF THE EMPLOYEE THAT MUST FURTHER OR AFFECT COMMERCE, AND IT
IS ENOUGH IF "ANY PART" OF THOSE DUTIES HAS THE REQUISITE EFFECT.  THE
STATUTE COMMANDS US TO EXAMINE THE PURPOSE AND EFFECT OF THE EMPLOYEE'S
FUNCTION IN THE RAILROAD'S INTERSTATE OPERATION, WITHOUT LIMITATION TO
NONCLERICAL EMPLOYEES OR DETERMINATION ON THE BASIS OF THE EMPLOYEE'S
IMPORTANCE AS AN INDIVIDUAL IN THE RAILROAD'S ORGANIZATION. 

HERE RESPONDENT RAILROAD HAS CHOSEN TO ARRANGE ITS OPERATIONS SO THAT
REPAIRS AND CONSTRUCTION ANYWHERE WITHIN ITS SYSTEM WHICH REQUIRE
BLUEPRINTS MUST GO THROUGH ITS PHILADELPHIA OFFICE.  NO SUCH WORK CAN
BE DONE WITHOUT RECOURSE TO THE FILES OF 325,000 ORIGINAL TRACINGS IN
PETITIONER'S CUSTODY.  LOSS OR MISPLACING OF THOSE TRACINGS COULD
PROMPTLY CAUSE DELAY, CONFUSION, OR WORSE IN THE DAY-TO-DAY OPERATION
OF RESPONDENT'S LINES.  IF ALL EMPLOYEES WHO PERFORM PETITIONER'S
DUTIES WERE REMOVED FROM SERVICE, RESPONDENT COULD NOT CONDUCT ITS
OPERATIONS WITHOUT A CHANGE IN ITS ORGANIZATIONAL SYSTEM.  TO RECOGNIZE
THIS IS TO ATTRIBUTE TO PETITIONER NEITHER AN EXAGERATED NOR AN
ATTENUATED RELATIONSHIP TO RESPONDENT'S TRANSPORTATION SYSTEM.  THE
FILING OF TRACINGS AND THE DISPATCH OF BLUEPRINTS TAKEN FROM THEM
COMPRISE A DIRECT LINK IN THE MAINTENANCE OF RESPONDENT'S LINES AND
ROLLING STOCK.  TOGETHER WITH THE MAKERS OF BLUEPRINTS, PETITIONER
CONSTITUTES THE MEANS BY WHICH MEN THROUGHOUT RESPONDENT'S SYSTEM
OBTAIN THE INFORMATION THEY MUST HAVE TO MAINTAIN THE RAILROAD'S
TRAINS, EQUIPMENT, TRACK, AND STRUCTURES. 

THE VERY PURPOSE OF PETITIONER'S JOB IS TO FURTHER PHYSICAL
MAINTENANCE OF AN INTERSTATE RAILROAD SYSTEM.  PROPER PERFORMANCE OF
HER DUTIES MAKES AN OBVIOUS CONTRIBUTION TO THE MAINTENANCE OF THAT
SYSTEM.  WE HOLD THAT THE PETITIONER, BY THE PERFORMANCE OF HER DUTIES,
IS FURTHERING THE INTERSTATE TRANSPORTATION IN WHICH THE RESPONDENT IS
ENGAGED.  "THE WORD 'FURTHERANCE' IS A COMPREHENSIVE TERM.   ITS
PERIPHERY MAY BE VAGUE, BUT ADMITTEDLY IT IS BOTH LARGE AND ELASTIC." 
SHELTON V. THOMSON, 148 F.2D 1, 3.  PETITIONER'S DUTIES HERE COME
WITHIN THE CONFINES OF THAT CONCEPT. 

SIMILARLY, THOSE DUTIES WHICH "IN ANY WAY DIRECTLY OR CLOSELY AND
SUBSTANTIALLY AFFECT" INTERSTATE COMMERCE IN THE RAILROAD INDUSTRY MUST
NECESSARILY BE MARKED OUT THROUGH THE PROCESS OF CASE-BY-CASE
ADJUDICATION.  THIS DEFINITION AND THE "FURTHERANCE" DEFINITION OF
EMPLOYMENT IN INTERSTATE COMMERCE IN THE 1939 AMENDMENT ARE SET FORTH
IN THE DISJUNCTIVE.  IN SOME SITUATIONS THEY MAY OVERLAP.  HERE WE HOLD
THAT, FOR THE REASONS ALREADY GIVEN, PERFORMANCE OF PETITIONER'S DUTIES
HAS A CLOSE AND SUBSTANTIAL EFFECT UPON THE OPERATION OF RESPONDENT'S
INTERSTATE ACTIVITIES.  CF. OVERSTREET V. NORTH SHORE CORP., 318 U.S.
125. 

PETITIONER'S DUTIES BROUGHT HER WITHIN THE COVERAGE OF SEC. 1 AS
AMENDED, AND THE DISTRICT COURT THEREFORE HAD JURISDICTION OVER THIS
SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  THE JUDGMENT BELOW IS
REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS.  REVERSED. 

MR. JUSTICE BURTON DISSENTS FOR THE REASONS STATED BELOW IN THE
OPINION OF THE COURT OF APPEALS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED AND MR. JUSTICE HARLAN
JOIN, DISSENTING. 

DISSENTERS ARE NOT EMPOWERED TO DEFINE THE SCOPE OF A DECISION, BUT
THE WAY THEY READ IT MAY INDUCE DISSENT.  SO IT IS WITH WHAT THE COURT
HAS HERE WRITTEN.  THE OPINION DOES NOT STATE IN TERMS THAT THE
AMENDMENT OF AUGUST 11, 1939, 53 STAT. 1404, TO THE FEDERAL EMPLOYERS'
LIABILITY ACT OF APRIL 22, 1908, 35 STAT. 65, HAS SO DRASTICALLY
CHANGED THE LIMITED SCOPE OF THAT ACT TO THOSE EMPLOYEES OF AN
INTERSTATE CARRIER WHO ARE, MORE OR LESS, DIRECTLY CONCERNED WITH ITS
TRANSPORTATION OPERATIONS AS TO MAKE IT REACH ALL THE EMPLOYEES OF SUCH
INTERSTATE CARRIER WHOM CONGRESS IN THE EXERCISE OF ITS CONSTITUTIONAL
POWER TO REGULATE COMMERCE MAY COVER.  I SAY THE COURT DOES NOT
EXPLICITLY HOLD THIS, BUT IT DOES HOLD THAT A CLERICAL EMPLOYEE IS
COVERED BY THE TERMS OF THE ACT BECAUSE A "PART" OF HER DUTIES IS IN
"FURTHERANCE" OF INTERSTATE COMMERCE.  THE COURT READS THE AMENDMENT OF
1939 TO THE ACT OF 1908 IN A MERELY LEXICOGRAPHICAL SENSE. 
"FURTHERANCE" MEANS ANYTHING THAT FURTHERS OR HELPS FORWARD; THE
PETITIONER WAS CERTAINLY CHARGED WITH TASKS THAT FURTHERED OR HELPED TO
FORWARD THE BUSINESS OF THE PENNSYLVANIA RAILRAOD COMPANY, A CARRIER
ENGAGED IN INTERSTATE COMMERCE; ERGO, THE PETITIONER, HAVING BEEN
INJURED WHILE "EMPLOYED BY SUCH CARRIER IN SUCH COMMERCE," HAS A RIGHT
OF ACTION UNDER THE AMENDMENT TO THE EMPLOYERS' LIABILITY ACT. 

WERE THE COURT TO BE AS EXPLICIT AS THIS, IT WOULD AT LEAST NOT OPEN
THE DOOR, AS THIS DECISION INEVITABLY DOES, TO NEW LITIGATION.  IT IS
NOT A JURISTIC REQUIREMENT THAT DECISIONS BE CARRIED TO THEIR LOGICAL
CONSEQUENCES.  IT IS EQUALLY TRUE THAT CAPRICIOUS DISTINCTIONS SHOULD
NOT BE MADE.  YET THEY ARE INVITED WHEN THE RATIONALE OF A DECISION IS
LEFT, IF NOT CLOUDY, CERTIANLY UNLIMITED.  FOR MYSELF, I DO NOT SEE HOW
THE CLERICAL EMPLOYEE HERE "FURTHERS" THE BUSINESS OF THE PENNSYLVANIA
ANY MORE THAN DO ALL THE OTHER CLERICAL EMPLOYEES OF THE PENNSYLVANIA,
AND THE THOUSANDS UPON THOUSANDS OF CLERICAL EMPLOYEES ON THE VARIOUS
RAILROADS THROUGHOUT THE COUNTRY, EVEN THOUGH THERE MAY BE DIFFERENCES
IN SALARY AND HIERARCHICAL IMPORTANCE AMONG SUCH EMPLOYEES. 

ACCORDINGLY, CLERICAL EMPLOYEES AND OTHER OBVIOUSLY NON
TRANSPORTATION EMPLOYEES OF RAILROADS WILL BRING SUITS UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT WHEN RECOVERY THEREUNDER WILL, BY THE
LAW OF CHANCE, APPEAR TO LAWYERS ADVISING THEM TO BE MORE ADVANTAGEOUS
THAN AWARDS OBTAINABLE UNDER STATE WORKMEN'S COMPENSATION ACTS. 
INDEED, IF SOME EMPLOYEES MAY SEEK TO AVAIL THEMSELVES, FOR ONE REASON
OR ANOTHER, OF A STATE WORKMEN'S COMPENSATION ACT, A CARRIER MAY
RESIST, UNDER THE DOCTRINE OF NEW YORK CENTRAL R. CO. V. WINFIELD, 244
U.S. 147, BY URGING THE EXCLUSIVENESS OF A REMEDY UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  CONVERSELY, IF SUIT IS BROUGHT UNDER THAT
ACT, CARRIERS WILL DOUBTLESS RESIST, AS THEY HAVE IN THE PAST, ON THE
GROUND THAT THE PARTICULAR CLERICAL EMPLOYEE IS NOT "FURTHERING" ITS
BUSINESS SUFFICIENTLY TO CONSTITUTE "FURTHERANCE" AS INTENDED BY THE
COURT IN THIS CASE.  IT IS NOT A SILLY EXERCISE IN PROPHECY TO FORETELL
THAT JUST AS A MASS, IF INDEED NOT A MESS, OF CASES CAME BEFORE THIS
COURT PRIOR TO THE 1939 AMENDMENT, WHEN THE COURT GAVE A MUCH TOO
CONSTRICTED SCOPE TO THE ACT (SEE CASES COLLECTED IN FRANKFURTER AND
LANDIS, THE BUSINESS OF THE SUPREME COURT, PP. 207-208), SO A NEW
SERIES OF STERILE LITIGATION WILL BE STIMULATED BY THIS DECISION.    I
PART COMPANY WITH THE COURT NOT IN ITS READING OF ENGLISH BUT IN ITS
ASSUMPTION THAT THE CONSTRUCTION OF THE AMENDMENT TO THE FEDERAL
EMPLOYERS' LIABILITY ACT IS MERELY A MATTER OF READING ENGLISH.  THE
ACT OF AUGUST 11, 1939, IS THE LAST IN A SERIES OF CONSISTENTLY
DEVELOPING STATUTES.  AS SUCH, IT IS AN ORGANISM, PROJECTED INTO THE
FUTURE OUT OF ITS PAST.  IT IS NOT MERELY A COLLECTION OF WORDS FOR
ABSTRACT ANNOTATION OUT OF THE DICTIONARY.  THE PROCESS OF JUDICIAL
CONSTRUCTION MUST BE MINDFUL OF THE HISTORY OF THE LEGISLATION, OF THE
PURPOSE WHICH INFUSED IT, OF THE DIFFICULTIES WHICH WERE ENCOUNTERED IN
EFFECTUATING THIS PURPOSE, OF THE AIMS OF THOSE MOST ACTIVE IN
RELIEVING THESE DIFFICULTIES.  ABOVE ALL, WE SHOULD BE MINDFUL OF THE
CENTRAL CONCERN OF THE BODY OF ENACTMENTS THAT CONSTITUTE THE FEDERAL
EMPLOYERS' LIABILITY ACT THROUGHOUT ALL THE VICISSITUDES OF THE
LEGISLATION.  IT WOULD BE REDUNDANT TO DETAIL THESE CONSIDERATIONS IN
VIEW OF JUDGE GOODRICH'S OPINION BELOW.  227 F.2D 810.  A FEW
ADDITIONAL OBSERVATIONS ARE PERTINENT. 

OF COURSE, THE ACT OF 1939 SOUGHT TO REMOVE HINDRANCES THAT HAD
REVEALED THEMSELVES IN SUBJECTING CARRIERS TO LIABILITY FOR INJURIES
DUE TO NEGLIGENCE.  BUT THE PREOCCUPATION OF THE WHOLE COURSE OF THIS
LEGISLATION WAS WITH PROTECTION TO THOSE WHO WERE PECULIARLY EXPOSED TO
INJURIES BECAUSE OF THE NATURE OF THEIR OCCUPATION, I.E., THE HAZARDOUS
BUSINESS OF RAILROADING.  A VERY IMPORTANT OBSTACLE TO RECOVERY WAS THE
DOCTRINE OF THE ASSUMPTION OF RISK AS PART OF THE GENERAL LAW OF
NEGLIGENCE THAT WAS MADE THE BASIS OF THE FEDERAL RIGHT.  CONGRESS
ABOLISHED ASSUMPTION OF RISK AS A DEFENSE.  SEE TILLER V. ATLANTIC
COAST LINE R. CO., 318 U.S. 54.  ANOTHER GREAT DIFFICULTY DERIVED FROM
THIS COURT'S CONSTRUCTION OF THE COMMERCE CLAUSE WHEREBY IT CONFINED
APPLICATION OF THE FEDERAL EMPLOYERS' LIABILITY ACT TO INJURIES
SUSTAINED BY AN EMPLOYEE IF AT THE MOMENT OF INJURY HIS WORK WAS
RELATED TO INTERSTATE TRANSPORTATION.  THIS MODE OF APPROACH DERIVED
FROM THE EMPLOYERS' LIABILITY CASES, 207 U.S. 463, AND THE SECOND
EMPLOYERS' LIABILITY CASES, 223 U.S. 1, AND PRODUCED A SERIES OF
DECISIONS WHICH LED JUDGE LEARNED HAND TO SAY "THE CASES ARE FULL OF
CASUISTRY  ...  ."  CENTRAL R. CO. OF NEW JERSEY V. MONAHAN, 11 F.2D
212, 213. 

I AGREE WITH THE COURT IN FINDING THAT THE "1939 AMENDMENT WAS
DESIGNED TO OBLITERATE FINE DISTINCTIONS"; BUT THEY WERE MADE BY COURTS
ONLY IN RELATION TO EMPLOYEES WHO WORKED IN THE CONTEXT OF THE
HAZARDOUS BUSINESS OF TRANSPORTATION.  THE AMENDATORY LEGISLATION WAS
ADDRESSED TO JUDICIAL DISTINCTIONS AFFECTING THESE TRANSPORTATION
WORKERS THAT BORE NO PRACTICAL RELATION TO THE ESSENTIAL CONDITIONS OF
THEIR EMPLOYMENT; THESE DISTINCTIONS NEVER TOUCHED OTHERS IN A TOTALLY
DIFFERENT CATEGORY OF EMPLOYMENT BECAUSE THE FEDERAL EMPLOYERS'
LIABILITY ACT NEVER REMOTELY APPLIED TO THEM.  IN ORDER TO OBLITERATE
SUCH "FINE DISTINCTIONS," IT IS NOT NECESSARY TO JUMP OVER THE MOON AND
WIPE OUT THE BASIC DISTINCTION BETWEEN THOSE WHOSE DUTIES ARE TIED TO
TRANSPORTATION, WHATEVER MAY HAVE BEEN THEIR PRECISE WORK AT THE MOMENT
OF INJURY, AND THOSE EMPLOYEES WHO ARE EXPOSED BY WAY OF PERMANENT
OCCUPATION TO NO GREATER OR DIFFERENT POTENTIAL HAZARDS THAN ARE THE
THOUSANDS UPON THOUSANDS OF LIKE WORKERS IN OFFICES OTHER THAN THOSE OF
RAILROADS WHOM CONGRESS HAS LEFT TO REMEDIES UNDER STATE LAW.  IT WAS
ON THE PRESUPPOSITION OF THIS CARDINAL DISTINCTION BETWEEN
TRANSPORTATION AND NON-TRANSPORTATION EMPLOYEES OF RAILROADS THAT THE
FEDERAL EMPLOYERS' LIABILITY ACT WAS AMENDED IN 1939.  TO MAKE IT APPLY
TO CLERICAL WORKERS WHO "FURTHER," IN A DICTIONARY SENSE OF THE TERM,
THE INTERSTATE COMMERCE BUSINESS OF RAILROADS WOULD HAVE AS MUCH
JUSTIFICATION, BUT NO MORE, AS IT WOULD HAVE FOR CONGRESS TO PASS A
FEDERAL EMPLOYERS' LIABILITY ACT FOR ALL EMPLOYEES WHO FURTHER LARGE
ENTERPRISES IN THE CONDUCT OF THEIR INTERSTATE COMMERCE.  THE WHOLE
COURSE OF HISTORY OF THE FEDERAL EMPLOYERS' LIABILITY ACT AS WELL AS
DUE REGARD FOR THE TEXT OF THE AMENDMENT OF 1939, IN ITS ENTIRE
CONTEXT, CALLS FOR AFFIRMANCE OF THE DECISION BELOW. 
..END :


















PARR V. UNITED STATES 351 U.S. 513 


NO. 320.  ARGUED MARCH 28, 1956.  - DECIDED JUNE 11, 1956.  - 225 F.2D
329, AFFIRMED. 


1.  PETITIONER WAS INDICTED IN ONE DIVISION OF THE FEDERAL DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF TEXAS, AND THAT COURT GRANTED HIS
MOTION TO TRANSFER THE CASE TO ANOTHER DIVISION, ON THE GROUND THAT
LOCAL PREJUDICE WOULD PREVENT A FAIR TRIAL IN THE DIVISION WHERE HE WAS
INDICTED.  SUBSEQUENTLY, THE GOVERNMENT OBTAINED A NEW INDICTMENT IN
ANOTHER DISTRICT FOR THE SAME OFFENSES AND MOVED IN THE FIRST COURT FOR
DISMISSAL OF THE FIRST INDICTMENT.  THIS MOTION WAS GRANTED, AND
PETITIONER APPEALED.  HELD:  THE COURT OF APPEALS WAS WITHOUT
JURISDICTION, BECAUSE THERE WAS NO FINAL JUDGMENT.  PP. 514-521. 

(A)  CONSIDERING THE FIRST INDICTMENT ALONE, AN APPEAL FROM ITS
DISMISSAL WILL NOT LIE, BECAUSE PETITIONER HAS NOT BEEN AGGRIEVED, EVEN
THOUGH HE IS LEFT OPEN TO FURTHER PROSECUTION.  PP. 516-517. 

(B)  VIEWING THE TWO INDICTMENTS TOGETHER AS PARTS OF A SINGLE
PROSECUTION, DISMISSAL OF THE FIRST INDICTMENT WAS NOT A FINAL ORDER
BUT ONLY AN INTERLOCUTORY STEP IN PETITIONER'S PROSECUTION.  PP. 518
519. 

(C)  DISMISSAL OF THE FIRST INDICTMENT DOES NOT COME WITHIN THE
EXCEPTIONS TO THE RULE OF "FINALITY," BECAUSE LACK OF AN APPEAL AT THIS
STAGE WILL NOT DENY EFFECTIVE REVIEW OF HIS CLAIM THAT HE WAS ENTITLED
TO TRIAL IN THE COURT TO WHICH HIS FIRST INDICTMENT WAS TRANSFERRED. 
PP. 519-520. 

2.  PETITIONER'S MOTION FOR LEAVE TO FILE IN THIS COURT AN ORIGINAL
PETITION FOR WRITS OF MANDAMUS AND PROHIBITION TO THE FEDERAL DISTRICT
COURTS OF BOTH DISTRICTS, TO REQUIRE HIS TRIAL IN THE COURT TO WHICH
THE FIRST INDICTMENT WAS TRANSFERRED, IS DENIED.  PP. 520-521. 

PARR V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT.* 

*TOGETHER WITH NO. 202, MISC., PARR V. RICE, U.S. DISTRICT JUDGE, ET
AL., ON MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF MANDAMUS AND
PROHIBITION. 

OPINION OF THE COURT BY MR. JUSTICE HARLAN, ANNOUNCED BY MR. JUSTICE
BURTON. 

IN NOVEMBER 1954 PETITIONER WAS INDICTED IN THE CORPUS CHRISTI
DIVISION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF TEXAS FOR WILLFULLY ATTEMPTING TO EVADE FEDERAL INCOME TAXES BY
FILING FALSE RETURNS FOR THE YEARS 1949, 1950 AND 1951.  (FN1)  IN
APRIL 1955 THE DISTRICT COURT GRANTED PETITIONER'S MOTION TO TRANSFER
THE CASE TO THE LAREDO DIVISION OF THE SOUTHERN DISTRICT, FINDING THAT
PETITIONER, A PROMINENT POLITICAL FIGURE, COULD NOT OBTAIN A FAIR TRIAL
IN THE CORPUS CHRISTI DIVISION BECAUSE OF LOCAL PREJUDICE AGAINST HIM. 
(FN2)  DEEMING ITSELF WITHOUT POWER TO TRANSFER THE CASE ELSEWHERE THAN
LAREDO WITHOUT THE DEFENDANT'S CONSENT, (FN3) THE DISTRICT COURT ALSO
FOUND AGAINST THE GOVERNMENT'S CLAIM THAT IT WOULD OR MIGHT BE UNDER "A
SEVERE HANDICAP" IN TRYING THE PETITIONER IN LAREDO.  (FN4) 

SHORTLY THEREAFTER, ON MAY 3, 1955, THE GOVERNMENT OBTAINED A NEW
INDICTMENT AGAINST PETITIONER IN THE AUSTIN DIVISION OF THE WESTERN
DISTRICT OF TEXAS FOR THE SAME OFFENSES.  (FN5)  THE NEXT DAY IT MOVED
IN THE CORPUS CHRISTI DIVISION FOR LEAVE TO DISMISS THE FIRST
INDICTMENT.  (FN6)  THIS MOTION WAS GRANTED OVER THE VIGOROUS
OPPOSITION OF THE PETITIONER, AND AN ORDER OF DISMISSAL WAS ENTERED. 
(FN7)  PETITIONER APPEALED TO THE COURT OF APPEALS AND, ON THE
GOVERNMENT'S MOTION, THAT COURT (ONE JUDGE DISSENTING) DISMISSED THE
APPEAL UPON THE GROUND THAT THE ORDER APPEALED FROM WAS NOT A FINAL
ORDER.  225 F.2D 329.  WE GRANTED CERTIORARI, DIRECTING THAT THE CASE
BE HEARD BOTH ON THE MERITS AND ON THE QUESTION OF APPEALABILITY.  350
U.S. 861.  SINCE WE CONCLUDE THAT THE ORDER IN QUESTION WAS NOT
APPEALABLE, WE DO NOT REACH THE MERITS. 

1.  IF THE CORPUS CHRISTI INDICTMENT IS VIEWED IN ISOLATION FROM THE
AUSTIN INDICTMENT, AN APPEAL FROM ITS DISMISSAL WILL NOT LIE BECAUSE
PETITIONER HAS NOT BEEN AGGRIEVED.  ONLY ONE INJURED BY THE JUDGMENT
SOUGHT TO BE REVIEWED CAN APPEAL, AND, REGARDING THE CORPUS CHRISTI
PROCEEDING AS A SEPARATE PROSECUTION, PETITIONER HAS NOT BEEN INJURED
BY ITS TERMINATION IN HIS FAVOR.  LEWIS V. UNITED STATES, 216 U.S.
611.  (FN8)  SO FAR AS PETITIONER'S STANDING TO APPEAL IS CONCERNED, IT
MAKES NO DIFFERENCE WHETHER THE DISMISSAL STILL LEAVES HIM OPEN TO
FURTHER PROSECUTION, OR WHETHER, AS PETITIONER CONTENDS, IT BARS HIS
PROSECUTION ELSEWHERE THAN IN LAREDO BECAUSE THE TRANSFER ORDER
OPERATED TO GIVE HIM A VESTED RIGHT TO BE TRIED ONLY THERE.  THE
TESTING OF THE EFFECT OF THE DISMISSAL ORDER MUST ABIDE PETITIONER'S
TRIAL, AND ONLY THEN, IF CONVICTED, WILL HE HAVE BEEN AGGRIEVED.  CF.
HEIKE V. UNITED STATES, 217 U.S. 423.  (FN9) 

2.  IF THE CORPUS CHRISTI AND AUSTIN INDICTMENTS BE VIEWED TOGETHER
AS PARTS OF A SINGLE PROSECUTION, PETITIONER FARES NO BETTER.  FOR THEN
THE ORDER DISMISSING THE CORPUS CHRISTI INDICTMENT WOULD NOT BE A FINAL
ORDER.  THE CONSIDERATIONS UNDERLYING THE HISTORIC REQUIREMENT OF
"FINALITY" IN FEDERAL APPELLATE PROCEDURE REQUIRE NO ELABORATION AT
THIS LATE DATE.  SEE COBBLEDICK V. UNITED STATES, 309 U.S. 323.  IN
GENERAL, A "JUDGMENT" OR "DECISION" IS FINAL FOR THE PURPOSE OF APPEAL
ONLY "WHEN IT TERMINATES THE LITIGATION BETWEEN THE PARTIES ON THE
MERITS OF THE CASE, AND LEAVES NOTHING TO BE DONE BUT TO ENFORCE BY
EXECUTION WHAT HAS BEEN DETERMINED."  ST. LOUIS, I.M.&S.R. CO. V.
SOUTHERN EXPRESS CO., 108 U.S. 24, 28.  THIS RULE APPLIES IN CRIMINAL
AS WELL AS CIVIL CASES.  BERMAN V. UNITED STATES, 302 U.S. 211, 212
213. 

IT IS ARGUED THAT THE ORDER DISMISSING THE CORPUS CHRISTI INDICTMENT
WAS "FINAL" BECAUSE IT (A) TERMINATED THE PROSECUTION UNDER THAT
INDICTMENT, AND (B) CANNOT BE REVIEWED OTHERWISE THAN UPON THIS
APPEAL.  WE THINK NEITHER POINT WELL TAKEN.  "FINAL JUDGMENT IN A
CRIMINAL CASE MEANS SENTENCE.   THE SENTENCE IS THE JUDGMENT."  BERMAN
V. UNITED STATES, SUPRA, AT P. 212.  AND VIEWING THE TWO INDICTMENTS
TOGETHER AS A SINGLE PROSECUTION, THE AUSTIN INDICTMENT BEING AS IT
WERE A SUPERSEDING INDICTMENT, PETITIONER HAS NOT YET BEEN TRIED, MUCH
LESS CONVICTED AND SENTENCED.  THE ORDER DISMISSING THE CORPUS CHRISTI
INDICTMENT WAS BUT AN INTERLOCUTORY STEP IN THIS PROSECUTION, AND ITS
REVIEW MUST AWAIT THE CONCLUSION OF THE "WHOLE MATTER LITIGATED"
BETWEEN THE GOVERNMENT AND THE PETITIONER - NAMELY, "THE RIGHT TO
CONVICT THE ACCUSED OF THE CRIME CHARGED IN THE INDICTMENT."  HEIKE V.
UNITED STATES, SUPRA, AT P. 429. 

NOR IS THERE SUBSTANCE TO THE CLAIM THAT THE CORPUS CHRISTI DISMISSAL
WILL NOT BE REVIEWABLE IF PETITIONER IS CONVICTED UNDER THE AUSTIN
INDICTMENT.  IF PETITIONER IS CORRECT IN HIS CONTENTION THAT THE LAREDO
TRANSFER PRECLUDED THE GOVERNMENT FROM PROCEEDING ELSEWHERE, HE COULD
NOT BE TRIED IN AUSTIN, AND, IF PETITIONER PRESERVES THE POINT, HE WILL
CERTAINLY BE ENTITLED TO HAVE THE CORPUS CHRISTI DISMISSAL REVIEWED
UPON AN APPEAL FROM A JUDGMENT OF CONVICTION UNDER THE AUSTIN
INDICTMENT.   TO HOLD THIS ORDER "FINAL" AT THIS STAGE OF THE
PROSECUTION WOULD DEFEAT THE LONG-STANDING STATUTORY POLICY AGAINST
PIECEMEAL APPEALS. 

3.  WE ALSO FIND UNTENABLE PETITIONER'S SECONDARY CONTENTION THAT,
EVEN IF NOT FINAL, THE CORPUS CHRISTI DISMISSAL FALLS WITHIN THE
EXCEPTIONS TO THE RULE OF "FINALITY" RECOGNIZED BY THIS COURT IN SUCH
CASES AS COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541, AND
SWIFT & COMPANY PACKERS V. COMPANIA COLUMBIANA DEL CARIBE, 339 U.S.
684.  IN THOSE CASES, ORDERS MADE DURING THE COURSE OF A LITIGATION
WERE HELD APPEALABLE BECAUSE THEY RELATED TO MATTERS OUTSIDE THE STREAM
OF THE MAIN ACTION AND WOULD NOT BE SUBJECT TO EFFECTIVE REVIEW AS PART
OF THE FINAL JUDGMENT IN THE ACTION.  UNLIKE THE ORDERS IN THOSE CASES,
THIS ORDER WAS BUT A "STEP TOWARD FINAL DISPOSITION OF THE MERITS OF
THE CASE" AND WILL "BE MERGED IN THE FINAL JUDGMENT."  COHEN V.
BENEFICIAL INDUSTRIAL LOAN CORP., SUPRA, AT P. 546.  THE LACK OF AN
APPEAL NOW WILL NOT "DENY EFFECTIVE REVIEW OF A CLAIM FAIRLY SEVERABLE
FROM THE CONTEXT OF A LARGER LITIGIOUS PROCESS."  SWIFT & COMPANY
PACKERS V. COMPANIA COLUMBIANA DEL CARIBE, SUPRA, AT P. 689.  TRUE, THE
PETITIONER WILL HAVE TO HAZARD A TRIAL UNDER THE AUSTIN INDICTMENT
BEFORE HE CAN GET A REVIEW OF WHETHER HE SHOULD HAVE BEEN TRIED IN
LAREDO UNDER THE CORPUS CHRISTI INDICTMENT, BUT "BEARING THE
DISCOMFITURE AND COST OF A PROSECUTION FOR CRIME EVEN BY AN INNOCENT
PERSON IS ONE OF THE PAINFUL OBLIGATIONS OF CITIZENSHIP."  COBBLEDICK
V. UNITED STATES, SUPRA, AT P. 325. 

4.  WITH HIS PETITION FOR CERTIORARI, PETITIONER ALSO FILED A MOTION,
DOCKET NO. 202, MISC., FOR LEAVE TO FILE AN ORIGINAL PETITION IN THIS
COURT FOR WRITS OF MANDAMUS AND PROHIBITION TO THE SOUTHERN AND WESTERN
DISTRICT COURTS, DESIGNED TO REQUIRE PETITIONER'S TRIAL IN LAREDO. 
(FN10) ALTHOUGH THIS APPLICATION HAS STOOD IN ABEYANCE PENDING
DETERMINATION OF THE QUESTIONS INVOLVED ON THE WRIT OF CERTIORARI, IT
IS APPROPRIATE TO DISPOSE OF IT NOW, IT HAVING BEEN FULLY ARGUED IN THE
PRESENT PROCEEDING. 

WE THINK THAT EXTRAORDINARY WRITS SHOULD NOT ISSUE.  SUCH WRITS MAY
GO ONLY IN AID OF APPELLATE JURISDICTION.  28 U.S.C. SEC. 1651.  THE
POWER TO ISSUE THEM IS DISCRETIONARY AND IT IS SPARINGLY EXERCISED. 
RULE 30 OF THE REVISED RULES OF THIS COURT AND THE CASES CITED
THEREIN.  THIS IS NOT A CASE WHERE A COURT HAS EXCEEDED OR REFUSED TO
EXERCISE ITS JURISDICTION, SEE ROCHE V. EVAPORATED MILK ASSN., 319 U.S.
21, 26, NOR ONE WHERE APPELLATE REVIEW WILL BE DEFEATED IF A WRIT DOES
NOT ISSUE, CF. MARYLAND V. SOPER, 270 U.S. 9, 29-30.  HERE THE MOST
THAT COULD BE CLAIMED IS THAT THE DISTRICT COURTS HAVE ERRED IN RULING
ON MATTERS WITHIN THEIR JURISDICTION.  THE EXTRAORDINARY WRITS DO NOT
REACH TO SUCH CASES; THEY MAY NOT BE USED TO THWART THE CONGRESSIONAL
POLICY AGAINST PIECEMEAL APPEALS.  ROCHE V. EVAPORATED MILK ASSN.,
SUPRA, AT P. 30. 

WE CONCLUDE THAT THE COURT OF APPEALS PROPERLY DISMISSED THE APPEAL,
AND ITS JUDGMENT MUST BE AFFIRMED. 

THE MOTION FOR LEAVE TO FILE A PETITION FOR WRITS OF MANDAMUS AND
PROHIBITION IN NO. 202, MISC., IS DENIED. 

FN1  SECTION 145(B) OF THE INTERNAL REVENUE CODE OF 1939, 53 STAT.
62. 

FN2  FED. RULES CRIM. PROC., 21: 

(A)  "THE COURT UPON MOTION OF THE DEFENDANT SHALL TRANSFER THE
PROCEEDING AS TO HIM TO ANOTHER DISTRICT OR DIVISION IF THE COURT IS
SATISFIED THAT THERE EXISTS IN THE DISTRICT OR DIVISION WHERE THE
PROSECUTION IS PENDING SO GREAT A PREJUDICE AGAINST THE DEFENDANT THAT
HE CANNOT OBTAIN A FAIR AND IMPARTIAL TRIAL IN THAT DISTRICT OR
DIVISION." 

(C)  "WHEN A TRANSFER IS ORDERED THE CLERK SHALL TRANSMIT TO THE
CLERK OF THE COURT TO WHICH THE PROCEEDING IS TRANSFERRED ALL PAPERS IN
THE PROCEEDING OR DUPLICATES THEREOF AND ANY BAIL TAKEN, AND THE
PROSECUTION SHALL CONTINUE IN THAT DISTRICT OR DIVISION." 

FN3  PETITIONER'S MOTION SOUGHT A TRANSFER SOLELY TO LAREDO.  IN HIS
BRIEF BEFORE THE DISTRICT COURT, HE STATED:  "WE WISH TO BE CLEARLY
UNDERSTOOD THAT IF THE CASE IS NOT TO BE TRANSFERRED TO LAREDO WE
PREFER THAT IT REMAIN IN CORPUS CHRISTI." 

FN4  17 F.R.D. 512, 518-520.  THIS OPINION IS ILLUMINATED BY THE
LATER REMARKS OF THE SAME JUDGE QUOTED IN N. 7, INFRA. 

FN5  THE AUSTIN INDICTMENT DIFFERED FROM THE CORPUS CHRISTI
INDICTMENT ONLY IN ITS ALLEGATIONS AS TO VENUE.  UNDER 18 U.S.C. SEC.
3237, PETITIONER WAS INDICTABLE BOTH IN THE WESTERN DISTRICT (WHERE HIS
RETURNS WERE FILED) AND IN THE SOUTHERN DISTRICT (WHERE THE RETURNS
WERE PREPARED AND FORWARDED FOR FILING). 

FN6  FED. RULES CRIM. PROC., 48(A): 

"THE ATTORNEY GENERAL OR THE UNITED STATES ATTORNEY MAY BY LEAVE OF
COURT FILE A DISMISSAL OF AN INDICTMENT, INFORMATION OR COMPLAINT AND
THE PROSECUTION SHALL THEREUPON TERMINATE.  SUCH A DISMISSAL MAY NOT BE
FILED DURING THE TRIAL WITHOUT THE CONSENT OF THE DEFENDANT." 

FN7  THE PETITIONER OPPOSED THE MOTION ON THE GROUND THAT IT WAS AN
ATTEMPT TO CIRCUMVENT THE DISTRICT COURT'S PRIOR ORDER TRANSFERRING THE
CASE TO LAREDO.  IT IS CLEAR THAT THE PRINCIPAL PURPOSE OF THE
GOVERNMENT IN OBTAINING THE AUSTIN INDICTMENT WAS TO AVOID A TRIAL IN
LAREDO, WHICH IT REGARDED AS "THE DEFENDANT'S SEAT OF POLITICAL POWER,"
AND THAT THIS PURPOSE WAS MADE MANIFEST TO DISTRICT JUDGE KENNERLY WHO
(TOGETHER WITH JUDGE ALLRED) HAD ACTED ON PETITIONER'S EARLIER TRANSFER
APPLICATION.  IN GRANTING THE MOTION TO DISMISS, JUDGE KENNERLY
STATED: 

"I REACHED THE CONCLUSION UPON PETITIONER'S EARLIER MOTION TO
TRANSFER THE CASE TO LAREDO THAT THE CASE SHOULD NOT BE TRIED IN CORPUS
CHRISTI, AND THAT DEFENDANT'S MOTION FOR CHANGE OF VENUE SHOULD BE
GRANTED. 

"IN REACHING THAT CONCLUSION, OR RATHER IN EXAMINING THE RECORD, I
REACHED THIS FURTHER CONCLUSION, THAT I GRAVELY DOUBTED WHETHER IN THE
ADMINISTRATION OF JUSTICE GENERALLY, THE CASE SHOULD BE TRIED IN THIS
DISTRICT AT ALL  ...  . 

"BUT WHEN I CAME TO EXAMINE THE LAW, I FOUND THAT I WAS WITHOUT POWER
TO TRANSFER THE CASE OUTSIDE OF THE SOUTHERN DISTRICT OF TEXAS  ...  .
IF I HAD HAD THAT AUTHORITY I WOULD HAVE SENT IT TO AMARILLO, OR
SHERMAN, OR TEXARKANA, OR SOME OF THOSE PLACES AS FAR REMOVED FROM THE
SCENE OF THE TROUBLES AS I COULD, OR AS I COULD FIND.  I WOULD HAVE
DONE THAT NOT, AS I SAY, TO FAVOR EITHER THE DEFENDANT OR THE
GOVERNMENT, BECAUSE I FEEL THAT JUSTICE IN THE CASE WOULD BE BEST
ADMINISTERED BY TRANSFERRING THE CASE TO ONE OF THOSE PLACES. 

"BUT AS STATED, I COULD NOT DO THAT AS I UNDERSTAND THE LAW.  I THEN
DISCOVERED THAT I COULD NOT TRANSFER THE CASE TO ANY OTHER DIVISION OF
THE DISTRICT EXCEPT LAREDO  ...  .  SO THE CASE WAS TRANSFERRED THERE. 

"NOW WE COME TO THIS MOTION BY THE GOVERNMENT TO DISMISS THE CASE
BECAUSE OF THE FACT THAT A NEW INDICTMENT COVERING THE SAME MATTER HAS
BEEN PRESENTED IN THE WESTERN DISTRICT  ...  . 

"  ...  EVIDENTLY THERE IS SOME DISCRETION IN THE COURT AS TO THE
MATTER OF WHETHER THE CASE SHOULD OR SHOULD NOT BE DISMISSED. 

"IN TWENTY-FOUR YEARS ON THE BENCH IN THIS DISTRICT, I DO NOT RECALL
EVER HAVING AT ANY TIME HESITATED TO DISMISS A CASE WHEN REQUESTED BY
THE GOVERNMENT.  THAT WAS OF COURSE UNDER THE OLD LAW, AND UNDER THE
PRESENT RULE.  IF I HAVE A DISCRETION UNDER THE RULES NOW AS TO WHETHER
THIS CASE SHOULD OR SHOULD NOT BE DISMISSED, I MUST EXERCISE THAT
DISCRETION AND ALLOW IT TO BE DISMISSED, BECAUSE I DO NOT THINK THAT
THE DEFENDANT, EITHER IN THE HEARING THIS MORNING OR IN THIS ENORMOUS
RECORD ON THE QUESTION OF CHANGE OF VENUE, HAS SHOWN ANY REASONS WHY
THE CASE SHOULD NOT BE DISMISSED." 

FN8  IT IS SUGGESTED THAT THE DEFENDANT IN LEWIS WAS HELD NOT TO BE
AGGRIEVED ONLY BECAUSE THE STATUTE OF LIMITATIONS PREVENTED HIS
REINDICTMENT.  THE COURT ALLUDED TO THAT CIRCUMSTANCE, HOWEVER, ONLY
AFTER HOLDING THAT THE DEFENDANT COULD NOT BE "LEGALLY AGGRIEVED" BY
BEING RELEASED FROM PROSECUTION UNDER THE INDICTMENT; THE BAR OF THE
STATUTE OF LIMITATIONS WAS NOTED ONLY IN CONNECTION WITH A CONCLUDING
OBSERVATION THAT THE CASE WAS MOOT IN ANY EVENT.    FN9  TO SUPPORT HIS
CLAIM OF AGGRIEVEMENT, PETITIONER, BY WAY OF ANALOGY, RELIES UPON FOUR
LOWER COURT DECISIONS GRANTING APPEALS FROM JUDGMENTS OF NONSUIT IN
CIVIL CASES.  IN THREE OF THE CASES, HOWEVER, THE DEFENDANT WAS
ASSERTING A RIGHT TO A JUDGMENT IN HIS FAVOR ON THE MERITS, CLAIMED TO
HAVE BEEN FULLY ESTABLISHED PRIOR TO THE NONSUIT, AND WAS OBVIOUSLY
AGGRIEVED BY THE LOSS OF THAT JUDGMENT.  CONNECTICUT FIRE INS. CO. V.
MANNING, 177 F. 893 (C.A. 8TH CIR.); MASSACHUSETTS FIRE & MARINE INS.
CO. V. SCHMICK, 58 F.2D 130 (C.A. 8TH CIR.); IOWA-NEBRASKA L.&P. CO. V.
DANIELS, 63 F.2D 322 (C.A. 8TH CIR.).  IN THE FOURTH CASE, CYBUR LUMBER
CO. V. ERKHART, 247 F. 284 (C.A. 5TH CIR.), THE PLAINTIFF TOOK A
NONSUIT ONLY AFTER A PREVIOUS VERDICT IN HIS FAVOR HAD BEEN REVERSED ON
APPEAL AND THE CASE HAD BEEN REMANDED FOR A NEW TRIAL WITH DIRECTIONS
TO DIRECT A VERDICT FOR THE DEFENDANT IF THE EVIDENCE WAS THE SAME; THE
DEFENDANT CLAIMED A RIGHT TO A JUDGMENT IF THE PLAINTIFF DID NOT
PROCEED TO TRIAL ON THE REMAND.  IN ALL OF THE CITED CASES, THEREFORE,
THE DEFENDANT WAS ASSERTING A RIGHT TO A JUDGMENT ON THE BASIS OF THE
PROGRESS OF THE ACTION PRIOR TO THE NONSUIT - A SUBSTANTIAL RIGHT GOING
TO THE MERITS OF THE CONTROVERSY OF WHICH HE HAD BEEN DEPRIVED BY THE
NONSUIT.  NO SUCH CIRCUMSTANCES ARE PRESENT HERE.  CF. FED. RULES CRIM.
PROC., 48(A):  "  ...  SUCH A DISMISSAL MAY NOT BE FILED DURING THE
TRIAL WITHOUT THE CONSENT OF THE DEFENDANT." 

FN10  PETITIONER HAD ALSO BEEN DENIED WRITS OF MANDAMUS AND
PROHIBITION IN THE COURT OF APPEALS, AND THE WRIT OF CERTIORARI BROUGHT
UP THAT RULING AS WELL AS THE DISMISSAL OF THE APPEAL.  THE PREROGATIVE
WRITS SOUGHT IN THE COURT OF APPEALS, HOWEVER, WERE DESIGNED SOLELY TO
STAY THE PROCEEDINGS IN THE WESTERN DISTRICT PENDING THE FINAL
DISPOSITION OF THE APPEAL AND NOT TO AFFORD PERMANENT RELIEF.  SINCE
THE WESTERN DISTRICT COURT SUBSEQUENTLY GRANTED THE GOVERNMENT'S MOTION
FOR SUCH A STAY, THAT PART OF THE CASE ON CERTIORARI IS NOW MOOT.  THUS
IT IS ONLY PETITIONER'S ORIGINAL APPLICATION TO THIS COURT IN NO. 202,
MISC., THAT IS BEFORE US. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS AND MR. JUSTICE CLARK JOIN, DISSENTING. 

THE PETITIONER, PARR, WAS INDICTED FOR INCOME TAX EVASION IN THE
UNITED STATES DISTRICT COURT AT CORPUS CHRISTI, TEXAS.  HE ASKED AND
OBTAINED A TRANSFER OF THE PROCEEDING TO LAREDO, TEXAS, ON THE GROUND
THAT HE COULD NOT OBTAIN A FAIR AND IMPARTIAL TRIAL IN CORPUS CHRISTI. 
THE GOVERNMENT WAS DISSATISFIED WITH THE TRANSFER TO SOME OTHER
DISTRICT.  IN THIS SITUATION, THE GOVERNMENT CONCEIVED THE IDEA OF
HAVING PARR INDICTED AT AUSTIN, TEXAS, THEREAFTER DISMISSING THE CASE
AGAINST HIM IN LAREDO.  PARR PROTESTED ON THE GROUND THAT HE HAD A
RIGHT TO BE TRIED, IF AT ALL, IN LAREDO, THE PLACE WHERE THE DISTRICT
COURT HAD ALREADY DETERMINED A FAIR TRIAL COULD BE OBTAINED.  HIS
PROTEST WAS OVERRULED.  PARR THEN APPEALED TO THE COURT OF APPEALS. 
THAT COURT DISMISSED THE APPEAL ON THE GROUND THAT THERE WAS NO FINAL
APPEALABLE JUDGMENT UNDER 28 U.S.C. SEC. 1291.  THE COURT TODAY AFFIRMS
THAT HOLDING WITHOUT REACHING THE MERITS OF THE DISTRICT COURT'S ACTION
IN DISMISSING THE INDICTMENT.  WE THINK THE JUDGMENT IS APPEALABLE
UNDER SEC. 1291 AND THAT IT WAS ERROR FOR THE DISTRICT COURT TO DISMISS
THE CASE IN LAREDO. 

THE DISMISSAL OF THE INDICTMENT, IF VALID, WAS A "FINAL" DECISION OF
THE LAREDO COURT IN THAT CASE.  THIS IS TRUE EVEN IF A NEW INDICTMENT
COULD BE OBTAINED IN THE LAREDO DISTRICT COURT OR IN SOME OTHER COURT. 
IN FACT, A NEW INDICTMENT WAS OBTAINED IN THE AUSTIN DISTRICT COURT
BEFORE THE LAREDO COURT DISMISSED THE INDICTMENT IN THIS CASE.  BUT
THIS NEW INDICTMENT MADE THE DISMISSAL OF THE LAREDO INDICTMENT AGAINST
PARR NO LESS "FINAL."  FOR THE LAREDO CASE, AFTER DISMISSAL, DID NOT
REMAIN "OPEN, UNFINISHED OR INCONCLUSIVE"; NOR WAS THE DECISION
DISMISSING IT "TENTATIVE, INFORMAL OR INCOMPLETE."  COHEN V. BENEFICIAL
LOAN CORP., 337 U.S. 541, 546.  THERE WAS NOTHING INTERLOCUTORY ABOUT
THE DISMISSAL.  IT WAS NOT SIMPLY AN INDECISIVE STEP IN THE COURSE OF A
CASE WHICH MIGHT ULTIMATELY RESULT IN CONVICTION OF PARR.  FOR IF PARR
IS TO BE CONVICTED ON THE CHARGE MADE IN THE LAREDO INDICTMENT, IT WILL
HAVE TO COME FROM THE INSTITUTION OF A NEW CASE.  THE TIME FOR PARR TO
APPEAL FROM THE DISMISSAL OF THIS CASE AGAINST HIM IN LAREDO, IF EVER,
WAS AFTER ITS "FINAL" DISPOSITION BY THE JUDGE AT LAREDO.  IT WOULD
APPEAR TO BE ALMOST A FANTASTIC INTERPRETATION OF "FINALITY" TO HOLD
OTHERWISE. 

THE MAJORITY CONTEND THAT, EVEN IF THE DISMISSAL HAD THE REQUISITE
FINALITY, PETITIONER MAY NOT APPEAL IT BECAUSE HE WAS NOT AGGRIEVED
THEREBY, RELYING UPON LEWIS V. UNITED STATES, 216 U.S. 611.  BUT THAT
CASE SHOULD NOT CONTROL HERE, SINCE NO NEW INDICTMENT HAD BEEN RETURNED
AGAINST LEWIS BEFORE OR AFTER THE DISMISSAL OF THE INDICTMENT HE SOUGHT
TO HAVE REVIEWED, AND AN APPLICABLE STATUTE OF LIMITATIONS BARRED ANY
FURTHER EFFORT TO INDICT HIM.  HERE, A NEW INDICTMENT WAS RETURNED
AGAINST PETITIONER BEFORE THE DISMISSAL.  IF HE HAD, AS WE BELIEVE HE
HAD, A RIGHT TO BE TRIED IN LAREDO OR NOT AT ALL, CLEARLY HE WAS
AGGRIEVED BY THE DISMISSAL UNDER THE CIRCUMSTANCES. 

IT SEEMS TO BE INTIMATED, HOWEVER, THAT PARR MIGHT BE ABLE TO RAISE
THE QUESTION SOMEHOW AFTER TRIAL AT AUSTIN IF HE SHOULD BE CONVICTED IN
THE NEW AND DIFFERENT CASE BROUGHT THERE.  THIS COURT CAN WRITE LAW TO
THAT EFFECT.  WE DO NOT THINK IT SHOULD.  WE COUNTENANCE PLAIN
HARASSMENT IF WE REQUIRE PARR TO BE TRIED UNDER WHAT MAY TURN OUT TO BE
AN INVALID INDICTMENT AT AUSTIN BEFORE HE CAN OBTAIN APPELLATE REVIEW
OF DISMISSAL OF THE LAREDO CASE.  SHOULD THIS OCCUR, PARR WOULD HAVE
BEEN REQUIRED TO UNDERGO TWO TRIALS, ONE AT AUSTIN AND ANOTHER AT
LAREDO.  SECTION 1291 SHOULD NOT BE CONSTRUED SO AS TO BRING ABOUT SUCH
A RESULT. 

WE THINK IT WAS ERROR FOR THE DISTRICT COURT AT LAREDO TO DISMISS THE
CASE THERE.  RULE 21 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE ALLOWS
DEFENDANTS TO OBTAIN CHANGES OF VENUE IN ORDER TO GET FAIR AND
IMPARTIAL TRIAL.  NO RULE OR STATUTE GRANTS SUCH A PRIVILEGE TO THE
UNITED STATES.  THE GOVERNMENT CAN AND PROBABLY FREQUENTLY DOES SHOP
AROUND TO FIND A COURT IT DEEMS MOST FAVORABLE TO TRY DEFENDANTS. 
HERE, THE GOVERNMENT SELECTED CORPUS CHRISTI AS THE FORUM IN WHICH TO
PROSECUTE PARR, ALTHOUGH, FOR THE LAST 20 YEARS PRECEDING, THE
GOVERNMENT HAD FILED ALL TAX-EVASION CASES ARISING IN THAT DISTRICT IN
AUSTIN.  HERE, AFTER THE GOVERNMENT'S CHOICE FOR TRIAL WAS FOUND BY THE
DISTRICT COURT TO BE UNFAIR TO THE DEFENDANT, AND LAREDO WAS FOUND TO
PROVIDE A FAIR PLACE FOR TRIAL, THE GOVERNMENT IS BEING ALLOWED TO
FRUSTRATE THE COURT'S SELECTION OF LAREDO BY FILING A NEW INDICTMENT IN
A NEW CASE IN AUSTIN.  WE THINK THE GOVERNMENT SHOULD NOT BE ALLOWED TO
CIRCUMVENT THE COURT'S ORDER IN THAT FASHION.  RULE 21(C) PROVIDES
THAT, AFTER TRANSFER UNDER THAT RULE, "THE PROSECUTION SHALL CONTINUE"
IN THE PLACE TO WHICH THE CASE HAS BEEN TRANSFERRED.  THERE IS NO
FINDING OF ANY KIND THAT THE GOVERNMENT WILL NOT GET A FAIR TRIAL AT
LAREDO.  THE FINDING WAS EXPRESSLY TO THE CONTRARY.  THE SPECIFIC
PURPOSE OF RULE 21 IS TO HAVE TRIALS THAT CAN BE FAIR AND IMPARTIAL. 
THE OBJECT OF THE GOVERNMENT HERE IS TO ESCAPE FROM A COURT WHERE IT
HAS BEEN DECIDED AFTER A FULL HEARING THAT A FAIR AND IMPARTIAL TRIAL
WILL BE GIVEN.  THERE IS NO REASON THAT WE CAN SEE WHY RULE 21 SHOULD
NOT BE GIVEN ITS FULL EFFECT BY REQUIRING TRIAL TO TAKE PLACE IN THE
DISTRICT COURT TO WHICH IT HAS BEEN REMOVED IN THE INTEREST OF
FAIRNESS.  WE WOULD REVERSE THIS CASE. 
..END :







CZAPLICKI V. THE HOEGH SILVERCLOUD 351 U.S. 525 


NO. 342.  ARGUED APRIL 24, 1956 - DECIDED JUNE 11, 1956 - 223 F.2D 189,
REVERSED AND REMANDED. 


PETITIONER, A LONGSHOREMAN, WAS INJURED IN 1945 WHILE WORKING ON A
SHIP WHEN STEPS BUILT BY A CONTRACTOR COLLAPSED, CAUSING HIM TO FALL. 
SHORTLY THEREAFTER, HE ELECTED TO ACCEPT COMPENSATION UNDER THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, AND AN AWARD WAS
MADE BY A DEPUTY COMMISSIONER.  PAYMENTS THEREUNDER WERE MADE BY AN
INSURER, WHICH HAD INSURED BOTH PETITIONER'S EMPLOYER AND THE
CONTRACTOR WHO HAD BUILT THE STEPS.  IN 1952, PETITIONER FILED A LIBEL
AGAINST THE SHIP, HER OWNERS, HER OPERATORS AND THE CONTRACTOR WHO HAD
BUILT THE STEPS, CLAIMING DAMAGES FOR HIS INJURIES ON GROUNDS OF
UNSEAWORTHINESS AND NEGLIGENCE.  HE ALSO TRIED UNSUCCESSFULLY TO JOIN
THE INSURER AS A PARTY.  HELD: 

1.  AN ALLEGED PROCEDURAL DEFECT IN THE COMPENSATION AWARD WAS NOT
SUCH AS TO PREJUDICE PETITIONER OR TO DEPRIVE THE DEPUTY COMMISSIONER
OF JURISDICTION TO ENTER THE AWARD; AND THE AWARD CANNOT NOW BE SET
ASIDE ON THAT GROUND.  PP. 528-529. 

2.  UNDER SEC. 33(B) OF THE COMPENSATION ACT, PETITIONER'S ACCEPTANCE
OF THE AWARD HAD THE EFFECT OF ASSIGNING HIS RIGHTS OF ACTION AGAINST
THIRD PARTIES TO HIS EMPLOYER, TO WHOM THE INSURER WAS SUBROGATED; BUT
THAT DID NOT PRECLUDE PETITIONER FROM BRINGING THE LIBEL IN THE
CIRCUMSTANCES OF THIS CASE, BECAUSE PETITIONER'S RIGHTS WERE HELD BY
THE INSURER - THE PARTY MOST LIKELY TO SUFFER FROM ENFORCEMENT OF THOSE
RIGHTS.  PP. 529-532. 

(A)  EVEN AFTER THE ASSIGNMENT, PETITIONER HAD AN INTEREST IN HIS
RIGHT OF ACTION AGAINST THIRD PARTIES, SINCE ANY RECOVERY MUST BE
APPORTIONED BETWEEN THE EMPLOYEE AND THE ASSIGNEE UNDER SEC. 33(E). 
PP. 530-531. 

(B)  THOUGH SEC. 33(D) GIVES THE ASSIGNEE CONTROL OVER ENFORCEMENT OF
THE EMPLOYEE'S RIGHT OF ACTION AGAINST THIRD PARTIES, IT SHOULD NOT BE
CONSTRUED TO ENABLE THE ASSIGNEE TO DEFEAT THE EMPLOYEE'S INTEREST IN
ANY POSSIBLE RECOVERY, WHERE THERE IS SUCH A CONFLICT OF INTERESTS AS
EXISTS IN THIS CASE.  PP. 531-532. 

(C)  IF THE INSURER IS WITHIN THE COURT'S JURISDICTION, IT SHOULD BE
MADE A PARTY TO PETITIONER'S SUIT.  P. 532. 

3.  UNDER SEC. 33(A), PETITIONER'S ELECTION TO ACCEPT THE
COMPENSATION AWARD INSTEAD OF PROCEEDING AGAINST THIRD PARTIES DOES NOT
BAR THIS SUIT IN THE CIRCUMSTANCES OF THIS CASE.  PP. 532-533. 

4.  THOUGH THE STATUTES OF LIMITATIONS THAT MIGHT HAVE BEEN
APPLICABLE HAD RUN, PETITIONER WAS NOT NECESSARILY BARRED BY LACHES ON
THE PRESENT RECORD FROM BRINGING THIS SUIT.  PP. 533-534. 

(A)  LACHES AS A DEFENSE TO AN ADMIRALTY SUIT IS NOT TO BE MEASURED
BY STRICT APPLICATION OF STATUTES OF LIMITATIONS; IT DEPENDS ON THE
PECULIAR EQUITABLE CIRCUMSTANCES OF EACH CASE.  P. 533. 

(B)  SINCE THE DISTRICT COURT DID NOT CONSIDER THE DEFENSE OF LACHES
BUT DISMISSED THE LIBEL ON OTHER GROUNDS, AND THE COURT OF APPEALS
HELD, ON A RECORD THAT WAS INCOMPLETE ON THE ISSUE OF LACHES, THAT IT
WAS BARRED SOLELY BECAUSE THE STATUTES OF LIMITATIONS HAD RUN, THE
PRESENT RECORD IS INADEQUATE TO JUSTIFY A HOLDING THAT THIS LIBEL IS
BARRED BY LACHES.  PP. 533-534. 

(C)  THE EXISTENCE OF LACHES IS A QUESTION PRIMARILY ADDRESSED TO THE
DISCRETION OF THE TRIAL COURT; AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS.  P. 534. 

CZAPLICKI V. THE HOEGH SILVERCLOUD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE HARLAN, ANNOUNCED BY MR. JUSTICE
BURTON. 

CZAPLICKI WAS INJURED IN 1945 WHILE WORKING AS A LONGSHOREMAN ON THE
"SS HOEGH SILVERCLOUD," A VESSEL OWNED BY THE NORWEGIAN SHIPPING AND
TRADE MISSION AND OPERATED BY THE KERR STEAMSHIP COMPANY.   THE INJURY
OCCURRED WHEN SOME STEPS, CONSTRUCTED BY THE HAMILTON MARINE
CONTRACTING COMPANY, GAVE WAY, CAUSING CZAPLICKI TO FALL ABOUT FIVE
FEET.  AT THE TIME, CZAPLICKI WAS EMPLOYED BY THE NORTHERN DOCK
COMPANY, WHICH WAS INSURED FOR PURPOSES OF THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT (FN1) BY THE TRAVELERS INSURANCE
COMPANY.  TRAVELERS, WHICH WAS ALSO THE INSURER OF THE HAMILTON
COMPANY, FILED NOTICE WITH THE COMPENSATION COMMISSION THAT ANY
COMPENSATION CLAIM BY CZAPLICKI WOULD BE CONTROVERTED.  (FN2)  THREE
WEEKS AFTER THE ACCIDENT, CZAPLICKI ELECTED TO ACCEPT COMPENSATION
RATHER THAN PROCEED AGAINST ANY THIRD PARTIES, AND, ONE DAY LATER, A
FORMAL COMPENSATION AWARD WAS ENTERED BY A DEPUTY COMMISSIONER. 
PAYMENTS UNDER THE AWARD WERE MADE BY TRAVELERS. 

IN 1952, CZAPLICKI FILED A LIBEL AGAINST THE VESSEL, HER OWNERS AND
OPERATORS, AND THE HAMILTON COMPANY, CLAIMING DAMAGES FOR HIS INJURIES
ON GROUNDS OF UNSEAWORTHINESS AND NEGLIGENCE.  (FN3) AFTER VARIOUS
PROCEEDINGS IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, THE LIBEL WAS DISMISSED AS TO ALL RESPONDENTS, (FN4) ON THE
GROUND THAT CZAPLICKI WAS NOT THE PROPER PARTY LIBELANT, SINCE HIS
ELECTION TO ACCEPT COMPENSATION UNDER THE AWARD HAD OPERATED, UNDER
SECS. 33(B) AND 33(I), (FN5) AS AN ASSIGNMENT TO NORTHERN AND ITS
INSURER, TRAVELERS, OF HIS RIGHTS OF ACTION AGAINST THIRD PARTIES.  THE
DISTRICT COURT ALSO OVERRULED CZAPLICKI'S CONTENTION THAT THE
COMPENSATION AWARD WAS INVALID BECAUSE OF ALLEGED PROCEDURAL DEFECTS,
(FN6) AND DENIED HIS MOTION TO ADD TRAVELERS "AS PARTY LIBELANT TO SUE
IN ITS BEHALF AND AS TRUSTEE FOR LIBELANT," OR SIMPLY TO ADD TRAVELERS
AS A PARTY.  (FN7)  THE DISTRICT COURT FOUND IT UNNECESSARY, IN LIGHT
OF THIS DISPOSITION OF THE CASE, TO CONSIDER THE DEFENSE OF LACHES,
WHICH HAD BEEN INTERPOSED BY EACH RESPONDENT.  THE COURT OF APPEALS,
AFFIRMING THE DISTRICT COURT, HELD THE COMPENSATION AWARD VALID AND THE
LIBEL BARRED BY LACHES; ALTHOUGH IT INDICATED SOME DOUBT AS TO THE
CORRECTNESS OF THE DISTRICT COURT'S DECISION ON CZAPLICKI'S RIGHT TO
MAINTAIN THE SUIT, IT DID NOT PASS ON THAT QUESTION.  (FN8)  WE GRANTED
CERTIORARI, 350 U.S. 872, BECAUSE OF THE IMPORTANCE OF THESE QUESTIONS
IN THE ADMINISTRATION OF THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT. 

1.  CZAPLICKI SEEKS TO AVOID THE ASSIGNMENT QUESTION BY ATTACKING THE
COMPENSATION AWARD ITSELF, ON THE GROUND OF ASSERTED PROCEDURAL
DEFECTS.  (FN9)  HOWEVER, WE THINK THAT THE AWARD MUST BE TREATED AS A
VALID ONE.  IN THE FIRST PLACE, THE ALLEGED IRREGULARITY COULD NOT HAVE
PREJUDICED CZAPLICKI, SINCE IT RESULTED FROM A FAILURE TO AFFORD HIS
EMPLOYER A PROCEDURAL BENEFIT WHICH, WE ASSUME ARGUENDO, THE STATUTE
GIVES.  THE DEFECT, IF ANY, IS ONE OF WHICH ONLY THE EMPLOYER COULD
COMPLAIN; CZAPLICKI, WHO HAS NOT BEEN IN ANY WAY HARMED BY IT, CANNOT
USE IT AS A VEHICLE FOR SETTING ASIDE THE AWARD.  SECONDLY, THE
SUPPOSED DEFECT CANNOT BE USED TO ATTACK COLLATERALLY AN OTHERWISE
VALID AWARD.  THE STATUTE PROVIDES A MEANS FOR CONTESTING ACTION BY THE
DEPUTY COMMISSIONER IN COMPENSATION AWARD CASES, (FN10) AND UNLESS THAT
PROCEDURE IS FOLLOWED, THE AWARD BECOMES BINDING.  IN SHORT, THE DEFECT
WAS NOT ONE WHICH WOULD DEPRIVE THE DEPUTY COMMISSIONER OF JURISDICTION
TO ENTER AN AWARD.  (FN11) 

2.  UNDER SEC. 33(B) OF THE COMPENSATION ACT, CZAPLICKI'S ACCEPTANCE
OF THE COMPENSATION AWARD HAD THE EFFECT OF ASSIGNING HIS RIGHTS OF
ACTION AGAINST THIRD PARTIES TO HIS EMPLOYER, NORTHERN.  TRAVELERS, AS
NORTHERN'S INSURER, WAS IN TURN SUBROGATED TO ALL NORTHERN'S RIGHTS BY
SEC. 33(I).  TRAVELERS, THEREFORE, WAS THE PROPER PARTY TO SUE ON THOSE
RIGHTS OF ACTION.  (FN12)  TRAVELERS WAS ALSO THE INSURER OF HAMILTON,
ONE OF THE THIRD PARTIES SUBJECT TO SUIT.  HAMILTON HAD CONSTRUCTED THE
STEPS ON WHICH THE ACCIDENT OCCURRED, AND MIGHT BE HELD LIABLE IF ITS
NEGLIGENCE WAS THE CAUSE OF CZAPLICKI'S INJURIES; IT MIGHT ALSO BE
SUBJECT TO A CLAIM OVER BY KERR OR THE NORWEGIAN TRADE MISSION IF
EITHER OF THEM SHOULD BE HELD LIABLE.  CF. RYAN STEVEDORING CO. V. PAN
ATLANTIC S.S. CORP., 350 U.S. 124.  THE RESULT IS THAT CZAPLICKI'S
RIGHTS OF ACTION WERE HELD BY THE PARTY MOST LIKELY TO SUFFER WERE THE
RIGHTS OF ACTION TO BE SUCCESSFULLY ENFORCED.  IN THESE CIRCUMSTANCES,
WE CANNOT AGREE THAT CZAPLICKI IS PRECLUDED BY THE ASSIGNMENT OF HIS
RIGHTS OF ACTION FROM ENFORCING THOSE RIGHTS IN AN ACTION BROUGHT BY
HIMSELF. 

ALTHOUGH SEC. 33(B) ASSIGNS TO THE EMPLOYER "ALL RIGHT OF THE PERSON
ENTITLED TO COMPENSATION TO RECOVER DAMAGES" AGAINST THIRD PARTIES WHEN
THERE HAS BEEN ACCEPTANCE OF COMPENSATION UNDER AN AWARD, THIS DOES NOT
MEAN THAT THE ASSIGNEE IS ENTITLED TO RETAIN ALL DAMAGES IN THE EVENT
OF A RECOVERY AGAINST A THIRD PARTY.  INSTEAD, SEC. 33(E) SPECIFICALLY
APPORTIONS ANY SUCH RECOVERY BETWEEN THE ASSIGNEE AND THE EMPLOYEE
WHOSE RIGHT OF ACTION IT WAS ORIGINALLY, GIVING TO THE FORMER AN AMOUNT
EQUAL TO THE EXPENSES INCURRED IN ENFORCING THE RIGHT, EXPENSES OF
MEDICAL CARE FOR THE EMPLOYEE, AND ANY AMOUNTS PAID AND PAYABLE AS
COMPENSATION, AND TO THE LATTER ANY BALANCE REMAINING.   (FN13)  IN A
VERY REAL SENSE, THEREFORE, THE INJURED EMPLOYEE HAS AN INTEREST IN HIS
RIGHT OF ACTION EVEN AFTER IT HAS BEEN ASSIGNED.  NORMALLY, THIS
INTEREST WILL NOT BE INCONSISTENT WITH THAT OF THE ASSIGNEE, FOR
PRESUMABLY THE ASSIGNEE WILL WANT TO RECOUP THE PAYMENTS MADE TO THE
EMPLOYEE.  SINCE THE ASSIGNEE'S RIGHT TO RECOUP COMES BEFORE THE
EMPLOYEE'S INTEREST, AND BECAUSE THE ASSIGNEE IS LIKELY TO BE IN A
BETTER POSITION TO PROSECUTE ANY CLAIMS AGAINST A THIRD PARTY, CONTROL
OVER THE RIGHT OF ACTION IS GIVEN TO THE ASSIGNEE, WHO CAN EITHER
INSTITUTE PROCEEDINGS FOR THE RECOVERY OF DAMAGES AGAINST A THIRD
PERSON, "OR MAY COMPROMISE WITH SUCH THIRD PERSON EITHER WITHOUT OR
AFTER INSTITUTING SUCH PROCEEDING."  SEC. 33(D), 33 U.S.C. SEC.
933(D).  IN GIVING THE ASSIGNEE EXCLUSIVE CONTROL OVER THE RIGHT OF
ACTION, HOWEVER, WE THINK THAT THE STATUTE PRESUPPOSES THAT THE
ASSIGNEE'S INTERESTS WILL NOT BE IN CONFLICT WITH THOSE OF THE
EMPLOYEE, AND THAT THROUGH ACTION OF THE ASSIGNEE THE EMPLOYEE WILL
OBTAIN HIS SHARE OF THE PROCEEDS OF THE RIGHT OF ACTION, IF THERE IS A
RECOVERY.  HERE, WHERE THERE IS SUCH A CONFLICT OF INTERESTS, THE
INACTION OF THE ASSIGNEE OPERATES TO DEFEAT THE EMPLOYEE'S INTEREST IN
ANY POSSIBLE RECOVERY.  SINCE AN ACTION BY TRAVELERS WOULD, IN EFFECT,
BE AN ACTION AGAINST ITSELF, CZAPLICKI IS THE ONLY PERSON WITH
SUFFICIENT ADVERSE INTEREST TO BRING SUIT.  IN THIS CIRCUMSTANCE, WE
THINK THE STATUTE SHOULD BE CONSTRUED TO ALLOW CZAPLICKI TO ENFORCE, IN
HIS OWN NAME, THE RIGHTS OF ACTION THAT WERE HIS ORIGINALLY. 

WE NEED NOT GO SO FAR AS TO SAY THAT BY GIVING THE EMPLOYEE AN
INTEREST IN THE PROCEEDS OF A THIRD-PARTY ACTION THE STATUTE PLACES THE
ASSIGNEE IN THE POSITION OF A FIDUCIARY, CF.  UNITED STATES FIDELITY &
GUARANTY CO. V. UNITED STATES, 152 F.2D 46, 48; ALL WE HOLD IS THAT,
GIVEN THE CONFLICT OF INTERESTS AND INACTION BY THE ASSIGNEE, THE
EMPLOYEE SHOULD NOT BE RELEGATED TO ANY RIGHTS HE MAY HAVE AGAINST THE
ASSIGNEE, BUT CAN MAINTAIN THE THIRD-PARTY ACTION HIMSELF.  IN SO
HOLDING, WE RECOGNIZE THAT ONE COURT OF APPEALS HAS HELD OTHERWISE
UNDER THIS SAME STATUTE, SEE HUNT V. BANK LINE, 35 F.2D 136, AS HAVE
CERTAIN STATE COURTS UNDER SIMILAR STATUTES, SEE TAYLOR V. NEW YORK
CENTRAL R. CO., 294 N.Y. 397, 62 N.E.2D 777; CF. WHALEN V. ATHOL MFG.
CO., 242 MASS. 547, 136 N.E. 600.  WE THINK, HOWEVER, THAT ALLOWING
SUIT BY THE EMPLOYEE IN THESE CIRCUMSTANCES IS THE PROPER WAY TO ENSURE
HIM THE RIGHTS GIVEN BY THE COMPENSATION ACT. 

TRAVELERS IS, OF COURSE, A PROPER PARTY TO THIS SUIT, SINCE ANY
RECOVERY MUST FIRST GO TO REIMBURSE IT FOR AMOUNTS ALREADY PAID OUT. 
IF TRAVELERS IS SUBJECT TO THE COURT'S JURISDICTION (FN14) IT SHOULD
THEREFORE BE MADE A PARTY, PURSUANT TO CZAPLICKI'S MOTION, ASSUMING
THAT THERE HAS BEEN PROPER SERVICE OF PROCESS. 

3.  RESPONDENTS CONTEND THAT SINCE CZAPLICKI DID NOT, UNDER SEC.
33(A), 33 U.S.C. SEC.  933(A), ELECT TO PROCEED AGAINST THIRD PARTIES,
BUT RATHER CHOSE TO ACCEPT COMPENSATION, HE CAN IN NO EVENT REVOKE THIS
ELECTION AND MAINTAIN THIS SUIT.  BUT, AS THIS COURT HAS ALREADY
POINTED OUT, "ELECTION NOT TO SUE A THIRD PARTY AND ASSIGNMENT OF THE
CAUSE OF ACTION ARE TWO SIDES OF THE SAME COIN."  AMERICAN STEVEDORES,
INC. V. PORELLO, 330 U.S. 446, 455.  CZAPLICKI CAN BRING THIS SUIT NOT
BECAUSE THERE HAS BEEN NO ASSIGNMENT, BUT BECAUSE IN THE PECULIAR FACTS
HERE THERE IS NO OTHER PROCEDURE BY WHICH HE CAN SECURE HIS STATUTORY
SHARE IN THE PROCEEDS, IF ANY, OF HIS RIGHT OF ACTION.  FOR THE SAME
REASON, WE HOLD THAT THE ELECTION TO ACCEPT COMPENSATION, AS A STEP
TOWARD THE COMPENSATION AWARD, DOES NOT BAR THIS SUIT. 

4.  THE COURT OF APPEALS FOUND IT UNNECESSARY TO CONSIDER WHETHER
CZAPLICKI COULD MAINTAIN THIS SUIT, BECAUSE IT WAS HELD BARRED IN ANY
EVENT ON ACCOUNT OF LACHES.  THE ONLY REASON GIVEN FOR THIS HOLDING WAS
THAT BOTH THE NEW YORK AND NEW JERSEY STATUTES OF LIMITATIONS, THE TWO
THAT MIGHT BE APPLICABLE, HAD RUN.  IT IS WELL SETTLED, HOWEVER, THAT
LACHES AS A DEFENSE TO AN ADMIRALTY SUIT IS NOT TO BE MEASURED BY
STRICT APPLICATION OF STATUTES OF LIMITATIONS; INSTEAD, THE RULE IS
THAT "THE DELAY WHICH WILL DEFEAT SUCH A SUIT MUST IN EVERY CASE DEPEND
ON THE PECULIAR EQUITABLE CIRCUMSTANCES OF THAT CASE."  THE KEY CITY,
14 WALL.  653, 660.  IN CASES WHERE SUIT HAS BEEN BROUGHT AFTER SOME
LAPSE OF TIME, THE QUESTION IS WHETHER IT WOULD BE INEQUITABLE, BECAUSE
OF THE DELAY, TO ENFORCE THE CLAIM.  HOLMBERG V. ARMBRECHT, 327 U.S.
392, 396; SOUTHERN PACIFIC CO. V. BOGERT, 250 U.S. 483, 488-489. 
"WHERE THERE HAS BEEN NO INEXCUSABLE DELAY IN SEEKING A REMEDY AND
WHERE NO PREJUDICE TO THE DEFENDANT HAS ENSUED FROM THE MERE PASSAGE OF
TIME, THERE SHOULD BE NO BAR TO RELIEF."  GARDNER V. PANAMA R. CO., 342
U.S. 29, 31.  THIS DOES NOT MEAN, OF COURSE, THAT THE STATE STATUTES OF
LIMITATIONS ARE IMMATERIAL IN DETERMINING WHETHER LACHES IS A BAR, BUT
IT DOES MEAN THAT THEY ARE NOT CONCLUSIVE, AND THAT THE DETERMINATION
SHOULD NOT BE MADE WITHOUT FIRST CONSIDERING ALL THE CIRCUMSTANCES
BEARING ON THE ISSUE. 

IN THIS CASE, THE DISTRICT COURT NEVER PASSED ON THE DEFENSE OF
LACHES, WHICH ALTHOUGH PROPERLY PUT IN ISSUE WAS MADE IRRELEVANT BY THE
HOLDING THAT, BECAUSE OF THE STATUTORY ASSIGNMENT OF HIS RIGHT OF
ACTION, CZAPLICKI COULD NOT MAINTAIN THIS ACTION.  NOT ONLY WAS THERE
NO DECISION ON LACHES, BUT THERE WAS NEVER AN OPPORTUNITY FOR CZAPLICKI
TO INTRODUCE EVIDENCE TO JUSTIFY THE DELAY, SINCE THE SUIT WAS
DISMISSED AFTER PRELIMINARY HEARINGS AND ARGUMENT ON THE ISSUE OF
CZAPLICKI'S "STANDING." 

WHEN THE CASE REACHED THE COURT OF APPEALS, THEREFORE, THE RECORD WAS
INCOMPLETE ON THE ISSUE OF LACHES.  THERE IS NOTHING IN THE RECORD TO
SHOW THAT CZAPLICKI WAS GIVEN ANY MORE OPPORTUNITY IN THE COURT OF
APPEALS TO EXPLAIN THE DELAY THAN HE HAD BEEN GIVEN IN THE DISTRICT
COURT.  (FN15)  THE ONLY "FINDING" MADE BY THE COURT OF APPEALS (FN16)
WAS THAT THE RUNNING OF THE STATUTES OF LIMITATIONS CONSTITUTED LACHES,
AND THAT, AS WE HAVE STATED, WAS INSUFFICIENT.  FROM ALL THAT APPEARS,
CZAPLICKI MAY HAVE FAILED TO BRING SUIT EARLIER BECAUSE HE RELIED ON
THE ASSIGNEE OF THE RIGHT OF ACTION TO ENFORCE WHAT WAS PRESUMABLY AN
INTEREST COMMON TO BOTH OF THEM.  THE RECORD DOES NOT DISCLOSE WHEN
CZAPLICKI DISCOVERED THE ASSIGNEE'S CONFLICTING INTEREST, OR WHETHER
THERE HAS BEEN UNJUSTIFIABLE DELAY SINCE THAT DISCOVERY.  NOR HAS THERE
BEEN OPPORTUNITY TO PROVE THE STATEMENT, MADE IN AN AFFIDAVIT TO THE
DISTRICT COURT, THAT THE DELAY HAS IN NO WAY PREJUDICED THE
RESPONDENTS.  THESE ARE QUESTIONS ON WHICH THE PARTIES SHOULD HAVE BEEN
ALLOWED TO PRESENT EVIDENCE.  THE PRESENT RECORD IS INADEQUATE TO
JUSTIFY A HOLDING THAT THIS ACTION WAS BARRED BY LACHES. 

SINCE "THE EXISTENCE OF LACHES IS A QUESTION PRIMARILY ADDRESSED TO
THE DISCRETION OF THE TRIAL COURT," GARDNER V. PANAMA R. CO., SUPRA, AT
P. 30, WE REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  44 STAT. 1424, AS AMENDED, 52 STAT. 1164, 33 U.S.C. SEC. 901 ET
SEQ. 

FN2  THE ONLY REASON GIVEN FOR CONTROVERTING THE CLAIM WAS:  "INJURED
IS UNDECIDED WHETHER OR NOT TO SUE THE 3RD PARTY AND RESERVES THE RIGHT
TO CONTROVERT FOR SUCH OTHER REASONS AS MAY LATER APPEAR." 

FN3  IN 1946, PETITIONER SUED THE KERR COMPANY IN THE NEW JERSEY
STATE COURTS, BUT THE SUIT WAS DISMISSED FOR IMPROPER SERVICE OF
PROCESS.  HE BROUGHT A SECOND SUIT AGAINST THE SAME COMPANY IN THE NEW
YORK STATE COURTS, BUT THAT SUIT WAS SUBSEQUENTLY DISCONTINUED IN 1947
BY HIS THEN ATTORNEY.  PETITIONER CLAIMS THAT THE COMMENCEMENT AND
DISCONTINUANCE OF THAT SUIT WERE WITHOUT HIS KNOWLEDGE.  PETITIONER HAD
RETAINED HIS PRESENT ATTORNEY BY OCTOBER 4, 1948, BUT THE PRESENT LIBEL
WAS NOT FILED UNTIL 1952.    FN4  110 F. SUPP. 933; 133 F. SUPP. 358;
THE OPINION OF JUDGE RYAN DISMISSING THE SUIT AGAINST HAMILTON COMPANY
AND THE NORWEGIAN TRADE MISSION IS NOT OFFICIALLY REPORTED. 

FN5  33 U.S.C. SEC. 933(B):  "ACCEPTANCE OF SUCH COMPENSATION UNDER
AN AWARD IN A COMPENSATION ORDER FILED BY THE DEPUTY COMMISSIONER SHALL
OPERATE AS AN ASSIGNMENT TO THE EMPLOYER OF ALL RIGHT OF THE PERSON
ENTITLED TO COMPENSATION TO RECOVER DAMAGES AGAINST SUCH THIRD
PERSON."    33 U.S.C. SEC. 933(I):  "WHERE THE EMPLOYER IS INSURED AND
THE INSURANCE CARRIER HAS ASSUMED THE PAYMENT OF THE COMPENSATION, THE
INSURANCE CARRIER SHALL BE SUBROGATED TO ALL THE RIGHTS OF THE EMPLOYER
UNDER THIS SECTION." 

FN6 110 F. SUPP. 933. 

FN7  133 F. SUPP. 358. 

FN8  223 F.2D 189. 

FN9  SECTION 19(C), 33 U.S.C. SEC. 919(C), PROVIDES THAT THE DEPUTY
COMMISSIONER MAY EITHER HOLD HEARINGS ON A COMPENSATION CLAIM, OR, "IF
NO HEARING IS ORDERED WITHIN TWENTY DAYS" AFTER NOTICE OF THE CLAIM IS
GIVEN TO THE EMPLOYER AND OTHER INTERESTED PARTIES, THE DEPUTY
COMMISSIONER CAN DECIDE THE CLAIM.  IN THIS CASE, THE AWARD WAS ENTERED
ONLY ONE DAY AFTER THE CLAIM WAS FILED, ON THE SAME DAY THAT NOTICE WAS
SENT TO THE EMPLOYER, AND NO HEARING WAS ORDERED OR HELD.  NONE OF THE
PARTIES REQUESTED A HEARING. 

FN10  SEC. 21, 33 U.S.C. SEC. 921. 

FN11  CZAPLICKI ALSO CONTENDS THAT THE AWARD MADE BY THE DEPUTY
COMMISSIONER WAS "LITTLE MORE THAN A TEMPORARY OR INTERLOCUTORY ORDER,"
AND SHOULD NOT BE CONSIDERED THE KIND OF AWARD WHICH OPERATES AS AN
ASSIGNMENT.  BUT THE RECORD INDICATES THAT WHAT THE DEPUTY COMMISSIONER
CALLED AN "AWARD" WAS IN EFFECT JUST THAT, AND WAS SUFFICIENT TO CALL
INTO PLAY THE ASSIGNMENT PROVISIONS OF THE ACT. 

FN12  AETNA LIFE INS. CO. V. MOSES, 287 U.S. 530, WAS AN ACTION AT
LAW BROUGHT UNDER THIS ACT, WHICH HAD BEEN MADE APPLICABLE AS A
WORKMEN'S COMPENSATION LAW IN THE DISTRICT OF COLUMBIA.  IT WAS HELD
THAT THE EMPLOYER WAS THE PROPER PARTY TO BRING THE ACTION.  SINCE THAT
CASE WAS DECIDED, SEC. 33(I) HAS BEEN ADDED TO THE COMPENSATION ACT,
PROVIDING THAT "THE INSURANCE CARRIER SHALL BE SUBROGATED TO ALL THE
RIGHTS OF THE EMPLOYER UNDER THIS SECTION."  52 STAT. 1168, 33 U.S.C.
SEC. 933(I).  AS NOTED IN THE MOSES CASE, 287 U.S., AT P. 542, N. 3, IT
HAS LONG BEEN THE ADMIRALTY RULE THAT THE INSURER SUBROGATED TO THE
RIGHTS OF THE INSURED CAN SUE IN HIS OWN NAME.  SEE, E.G., LIVERPOOL &
GREAT WESTERN STEAM CO. V. PHENIX INS. CO., 129 U.S. 397, 462; THE
POTOMAC, 105 U.S. 630, 634.  TRAVELERS WAS, THEREFORE, THE PROPER PARTY
LIBELANT HAD IT CHOSEN TO SUE IN THIS CASE.  CF. UNITED STATES V. AETNA
CAS. & SURETY CO., 338 U.S. 366, 380-381.  DOLEMAN V. LEVINE, 295 U.S.
221, AGAIN AN ACTION AT LAW, IS NOT IN POINT, SINCE IN THAT CASE,
UNLIKE THE CASE AT BAR, THERE WAS NO COMPLETE ASSIGNMENT OF THE
EMPLOYEE'S RIGHT OF ACTION. 

FN13  33 U.S.C. SEC. 933(E).  THE "PRESENT VALUE" OF AMOUNTS PAYABLE
BY THE EMPLOYER AS FUTURE COMPENSATION AND MEDICAL BENEFITS IS COMPUTED
AND RETAINED BY THE EMPLOYER "AS A TRUST FUND TO PAY SUCH COMPENSATION
AND THE COST OF SUCH BENEFITS AS THEY BECOME DUE."  SEC.  33(E)(D), 33
U.S.C. SEC. 933(E)(D). 

FN14  CF. ETTLINGER V. PERSIAN RUG & CARPET CO., 142 N.Y. 189, 36
N.E. 1055. 

FN15  IN HIS PETITION FOR REHEARING TO THE COURT BELOW, CZAPLICKI
ASKED FOR "AN OPPORTUNITY TO PROVE THE FACTS WHICH WOULD NEGATIVE
LACHES," ALTHOUGH HE DID NOT ATTEMPT TO SET FORTH THE FACTS ON WHICH HE
EXPECTED TO RELY.  THE PETITION WAS DENIED WITHOUT OPINION. 

FN16  CF. ADMIRALTY RULES, NO. 46 1/2. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE DISPOSITION OF A CASE IS OF PRIME IMPORTANCE TO THE PARTIES.  HOW
A RESULT IS REACHED CONCERNS THE RATIONAL DEVELOPMENT OF LAW.  I AGREE
WITH THE COURT'S DISPOSITION OF THIS CASE, BUT I WOULD DISPOSE OF THE
MAIN ISSUE - THE NATURE OF CZAPLICKI'S INTEREST THAT SURVIVES HIS
ACCEPTANCE OF COMPENSATION UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, 44 STAT. 1424, AS AMENDED, 52 STAT. 1164, 33 U.S.C.
SEC. 901 ET SEQ. - ON THE BASIS OF THE ANALYSIS MADE IN UNITED STATES
FIDELITY & GUARANTY CO. V. UNITED STATES, 152 F.2D 46, 48.  THE
REASONING OF THAT CASE SEEMS TO ME TO CARRY OUT THE SCHEME OF THE
LEGISLATION WITH APPROPRIATE CONSISTENCY. 

"SO FAR AS CONCERNS THE TORTFEASOR'S LIABILITY TO THE EMPLOYEE
BEYOND THE AMOUNT OF WORKMEN'S COMPENSATION, NO AGREEMENT BETWEEN THE
TORTFEASOR AND THE EMPLOYER CAN PREJUDICE THE EMPLOYEE, BECAUSE,
ALTHOUGH IT IS TRUE THAT, BY ACCEPTING COMPENSATION, THE EMPLOYEE
ASSIGNS HIS CLAIM AGAINST THE TORTFEASOR TO THE EMPLOYER OR INSURER,
THE ASSIGNEE HOLDS IT FOR THE BENEFIT OF THE EMPLOYEE SO FAR AS IT IS
NOT NECESSARY FOR HIS OWN RECOUPMENT.  THE ASSIGNEE IS IN EFFECT A
TRUSTEE, AND, ALTHOUGH IT IS TRUE THAT THE STATUTE GIVES HIM POWER TO
COMPROMISE THE WHOLE CLAIM, HE MUST NOT, IN DOING SO, ENTIRELY
DISREGARD THE EMPLOYEE'S INTEREST."  152 F.2D 46, 48. 

ALTHOUGH THIS SUIT WAS BROUGHT DIRECTLY AGAINST THE TORTFEASOR, THE
COURT DIRECTS THAT TRAVELERS, THE SUBROGEE INSURER, SHOULD BE MADE A
PARTY.  SINCE I DEEM THE PROPER THEORY ON WHICH CZAPLICKI MAY RECOVER
DESPITE HIS COMPENSATION AWARD TO BE TRAVELERS' FIDUCIARY
RESPONSIBILITY, I WOULD DIRECT RECONSTRUCTION OF THIS PROCEEDING SO
THAT IT SHOULD BE AGAINST TRAVELERS, WHILE THE VESSEL WOULD BE RETAINED
AS A PARTY. 
..END :
















COLE V. YOUNG 351 U.S. 536 


NO. 442.  ARGUED MARCH 6, 1956 - DECIDED JUNE 11, 1956 - 96 U.S. APP.
D.C. 379, 226 F.2D 337, REVERSED AND REMANDED. 


THE ACT OF AUGUST 26, 1950, GAVE TO THE HEADS OF CERTAIN DEPARTMENTS
AND AGENCIES OF THE GOVERNMENT SUMMARY SUSPENSION AND UNREVIEWABLE
DISMISSAL POWERS OVER THEIR CIVILIAN EMPLOYEES, WHEN DEEMED NECESSARY
"IN THE INTEREST OF THE NATIONAL SECURITY," AND ITS PROVISIONS WERE
EXTENDED TO "ALL OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT" BY
EXECUTIVE ORDER NO. 10450.  PETITIONER, A PREFERENCE-ELIGIBLE VETERAN
UNDER THE VETERANS' PREFERENCE ACT, WAS SUMMARILY SUSPENDED FROM HIS
CLASSIFIED CIVIL SERVICE POSITION AS A FOOD AND DRUG INSPECTOR FOR THE
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE ON CHARGES OF CLOSE
ASSOCIATION WITH ALLEGED COMMUNISTS AND AN ALLEGEDLY SUBVERSIVE
ORGANIZATION.  LATER, HE WAS DISMISSED ON THE GROUND THAT HIS CONTINUED
EMPLOYMENT WAS NOT "CLEARLY CONSISTENT WITH THE INTERESTS OF NATIONAL
SECURITY."  HIS APPEAL TO THE CIVIL SERVICE COMMISSION UNDER THE
VETERANS' PREFERENCE ACT WAS DENIED ON THE GROUND THAT THAT ACT WAS
INAPPLICABLE TO SUCH DISCHARGES.  HELD:  HIS DISCHARGE WAS NOT
AUTHORIZED BY THE 1950 ACT AND HENCE IT VIOLATED THE VETERANS'
PREFERENCE ACT.  PP. 538-558. 

1.  THE 1950 ACT AUTHORIZES A DISMISSAL ONLY UPON A DETERMINATION
THAT IT IS "NECESSARY OR ADVISABLE IN THE INTEREST OF THE NATIONAL
SECURITY."  SUCH A DETERMINATION REQUIRES AN EVALUATION OF THE RISK TO
THE "NATIONAL SECURITY" THAT THE EMPLOYEE'S RETENTION WOULD CREATE,
WHICH DEPENDS NOT ONLY UPON THE CHARACTER OF THE EMPLOYEE AND THE
LIKELIHOOD OF HIS MISCONDUCTING HIMSELF BUT ALSO UPON THE NATURE OF THE
POSITION HE OCCUPIES AND ITS RELATIONSHIP TO THE "NATIONAL SECURITY." 
P. 542. 

2.  THE 1950 ACT IS NOT THE ONLY, NOR EVEN THE PRIMARY, SOURCE OF
AUTHORITY TO DISMISS GOVERNMENT EMPLOYEES, AND THE QUESTION IN THIS
CASE IS NOT WHETHER AN EMPLOYEE CAN BE DISMISSED ON SUCH GROUNDS BUT
ONLY THE EXTENT TO WHICH THE SUMMARY PROCEDURES AUTHORIZED BY THE 1950
ACT ARE AVAILABLE IN SUCH A CASE.  PP. 543-544. 

3.  THIS DEPENDS ON THE MEANING OF THE TERM "NATIONAL SECURITY," AS
USED IN THE 1950 ACT.  PP. 542-544. 

4.  THE TERM "NATIONAL SECURITY" IS NOT DEFINED IN THAT ACT, BUT IT
IS CLEAR FROM THE STATUTE AS A WHOLE THAT IT WAS INTENDED TO COMPREHEND
ONLY THOSE ACTIVITIES OF THE GOVERNMENT THAT ARE DIRECTLY CONCERNED
WITH THE PROTECTION OF THE NATION FROM INTERNAL SUBVERSION OR FOREIGN
AGGRESSION, AND NOT THOSE WHICH CONTRIBUTE TO THE STRENGTH OF THE
NATION ONLY THROUGH THEIR IMPACT ON THE GENERAL WELFARE.  PP. 544-548. 

5.  THIS CONCLUSION IS SUPPORTED BY THE LEGISLATIVE HISTORY OF THE
ACT.  PP. 548-551. 

6.  A CONDITION PRECEDENT TO THE EXERCISE OF THE DISMISSAL AUTHORITY
CONFERRED BY THE 1950 ACT IS A DETERMINATION BY THE AGENCY HEAD THAT
THE POSITION OCCUPIED IS ONE AFFECTED WITH THE "NATIONAL SECURITY," AS
THAT TERM IS USED IN THE ACT.  P. 551. 

7.  NO DETERMINATION WAS MADE THAT PETITIONER'S POSITION WAS ONE IN
WHICH HE COULD ADVERSELY AFFECT THE "NATIONAL SECURITY," AS THAT TERM
IS USED IN THE ACT.  PP. 551-558. 

(A)  EXECUTIVE ORDER NO. 10450 TREATS AN ADVERSE DETERMINATION AS TO
THE LOYALTY OF AN EMPLOYEE AS SATISFYING THE STATUTE, IRRESPECTIVE OF
THE CHARACTER OF HIS JOB OR THE EFFECT HIS CONTINUED EMPLOYMENT MIGHT
HAVE UPON THE "NATIONAL SECURITY."  PP. 551-556. 

(B)  THE FAILURE OF THE EXECUTIVE ORDER TO STATE EXPLICITLY WHAT WAS
MEANT IS THE FAULT OF THE GOVERNMENT, AND ANY AMBIGUITIES SHOULD BE
RESOLVED AGAINST THE GOVERNMENT.  P. 556. 

(C)  FROM THE SECRETARY'S DETERMINATION THAT PETITIONER'S EMPLOYMENT
WAS NOT "CLEARLY CONSISTENT WITH THE INTERESTS OF NATIONAL SECURITY,"
IN THE LIGHT OF THE EXECUTIVE ORDER, IT MAY BE ASSUMED ONLY THAT THE
SECRETARY FOUND THE CHARGES TO BE TRUE AND THAT THEY CREATED REASONABLE
DOUBT AS TO PETITIONER'S LOYALTY.  PP. 556-557. 

COLE V. YOUNG ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE HARLAN, ANNOUNCED BY MR. JUSTICE
BURTON. 

THIS CASE PRESENTS THE QUESTION OF THE MEANING OF THE TERM "NATIONAL
SECURITY" AS USED IN THE ACT OF AUGUST 26, 1950, GIVING TO THE HEADS OF
CERTAIN DEPARTMENTS AND AGENCIES OF THE GOVERNMENT SUMMARY SUSPENSION
AND UNREVIEWABLE DISMISSAL POWERS OVER THEIR CIVILIAN EMPLOYEES, WHEN
DEEMED NECESSARY "IN THE INTEREST OF THE NATIONAL SECURITY OF THE
UNITED STATES."  (FN1) 

PETITIONER, A PREFERENCE-ELIGIBLE VETERAN UNDER SEC. 2 OF THE
VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 387, AS AMENDED, 5 U.S.C.
SEC. 851, HELD A POSITION IN THE CLASSIFIED CIVIL SERVICE AS A FOOD AND
DRUG INSPECTOR FOR THE NEW YORK DISTRICT OF THE FOOD AND DRUG
ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.  IN
NOVEMBER 1953, HE WAS SUSPENDED WITHOUT PAY FROM HIS POSITION, PENDING
INVESTIGATION TO DETERMINE WHETHER HIS EMPLOYMENT SHOULD BE
TERMINATED.  HE WAS GIVEN A WRITTEN STATEMENT OF CHARGES ALLEGING THAT
HE HAD "A CLOSE ASSOCIATION WITH INDIVIDUALS RELIABLY REPORTED TO BE
COMMUNISTS" AND THAT HE HAD MAINTAINED A "SYMPATHETIC ASSOCIATION"
WITH, HAD CONTRIBUTED FUNDS AND SERVICES TO, AND HAD ATTENDED SOCIAL
GATHERINGS OF AN ALLEGEDLY SUBVERSIVE ORGANIZATION. 

ALTHOUGH AFFORDED AN OPPORTUNITY TO DO SO, PETITIONER DECLINED TO
ANSWER THE CHARGES OR TO REQUEST A HEARING, AS HE HAD THE RIGHT TO DO.
THEREAFTER, THE SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, AFTER "A STUDY OF ALL THE DOCUMENTS IN PETITIONER'S CASE,"
DETERMINED THAT PETITIONER'S CONTINUED EMPLOYMENT WAS NOT "CLEARLY
CONSISTENT WITH THE INTERESTS OF NATIONAL SECURITY" AND ORDERED THE
TERMINATION OF HIS EMPLOYMENT.  PETITIONER APPEALED HIS DISCHARGE TO
THE CIVIL SERVICE COMMISSION, WHICH DECLINED TO ACCEPT THE APPEAL ON
THE GROUND THAT THE VETERANS' PREFERENCE ACT, UNDER WHICH PETITIONER
CLAIMED THE RIGHT OF APPEAL, WAS INAPPLICABLE TO SUCH DISCHARGES. 

PETITIONER THEREAFTER BROUGHT AN ACTION IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA SEEKING A DECLARATORY JUDGMENT THAT HIS DISCHARGE
WAS INVALID AND THAT THE CIVIL SERVICE COMMISSION HAD IMPROPERLY
REFUSED TO ENTERTAIN HIS APPEAL, AND AN ORDER REQUIRING HIS
REINSTATEMENT IN HIS FORMER POSITION.  THE DISTRICT COURT GRANTED THE
RESPONDENTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND DISMISSED THE
COMPLAINT.  125 F. SUPP. 284.  THE COURT OF APPEALS, WITH ONE JUDGE
DISSENTING, AFFIRMED.  96 U.S. APP. D.C.  379, 226 F.2D 337.  BECAUSE
OF THE IMPORTANCE OF THE QUESTIONS INVOLVED IN THE FIELD OF GOVERNMENT
EMPLOYMENT, WE GRANTED CERTIORARI.  350 U.S. 900. 

5 U.S.C. SEC. 863, PROVIDES THAT PREFERENCE ELIGIBLES MAY BE DISCHARGED
ONLY "FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE"
AND, AMONG OTHER PROCEDURAL RIGHTS, "SHALL HAVE THE RIGHT TO APPEAL TO
THE CIVIL SERVICE COMMISSION," WHOSE DECISION IS MADE BINDING ON THE
EMPLOYING AGENCY.  RESPONDENTS CONCEDE THAT PETITIONER'S DISCHARGE WAS
INVALID IF THAT ACT IS CONTROLLING.  THEY CONTEND, HOWEVER, AS WAS HELD
BY THE COURTS BELOW, THAT PETITIONER'S DISCHARGE WAS AUTHORIZED BY THE
ACT OF AUGUST 26, 1950, SUPRA, WHICH ELIMINATES THE RIGHT OF APPEAL TO
THE CIVIL SERVICE COMMISSION.  THUS THE SOLE QUESTION FOR DECISION IS
WHETHER PETITIONER'S DISCHARGE WAS AUTHORIZED BY THE 1950 ACT. 

THE 1950 ACT PROVIDES IN MATERIAL PART THAT, NOTWITHSTANDING ANY
OTHER PERSONNEL LAWS, THE HEAD OF ANY AGENCY TO WHICH THE ACT APPLIES: 

"MAY, IN HIS ABSOLUTE DISCRETION AND WHEN DEEMED NECESSARY IN THE
INTEREST OF NATIONAL SECURITY, SUSPEND, WITHOUT PAY, ANY CIVILIAN
OFFICER OR EMPLOYEE OF HIS AGENCY  ...  .  THE AGENCY HEAD CONCERNED
MAY, FOLLOWING SUCH INVESTIGATION AND REVIEW AS HE DEEMS NECESSARY,
TERMINATE THE EMPLOYMENT OF SUCH SUSPENDED CIVILIAN OFFICER OR EMPLOYEE
WHENEVER HE SHALL DETERMINE SUCH TERMINATION NECESSARY OR ADVISABLE IN
THE INTEREST OF THE NATIONAL SECURITY OF THE UNITED STATES, AND SUCH
DETERMINATION BY THE AGENCY HEAD CONCERNED SHALL BE CONCLUSIVE AND
FINAL:  ...  ." 

THE ACT WAS EXPRESSLY MADE APPLICABLE ONLY TO THE DEPARTMENTS OF
STATE, COMMERCE, JUSTICE, DEFENSE, ARMY, NAVY, AND AIR FORCE, THE COAST
GUARD, THE ATOMIC ENERGY COMMISSION, THE NATIONAL SECURITY RESOURCES
BOARD, AND THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS.  SECTION 3
OF THE ACT PROVIDES, HOWEVER, THAT THE ACT MAY BE EXTENDED "TO SUCH
OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT AS THE PRESIDENT MAY,
FROM TIME TO TIME, DEEM NECESSARY IN THE BEST INTERESTS OF NATIONAL
SECURITY," AND THE PRESIDENT HAS EXTENDED THE ACT UNDER THIS AUTHORITY
"TO ALL OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT."  (FN2)
WHILE THE VALIDITY OF THIS EXTENSION OF THE ACT DEPENDS UPON QUESTIONS
WHICH ARE IN MANY RESPECTS COMMON TO THOSE DETERMINING THE VALIDITY OF
THE SECRETARY'S EXERCISE OF THE AUTHORITY THEREBY EXTENDED TO HER,
(FN3) WE WILL RESTRICT OUR CONSIDERATION TO THE LATTER ISSUE AND
ASSUME, FOR PURPOSES OF THIS DECISION, THAT THE ACT HAS VALIDLY BEEN
EXTENDED TO APPLY TO THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. 

THE ACT AUTHORIZES DISMISSALS ONLY UPON A DETERMINATION BY THE
SECRETARY THAT THE DISMISSAL IS "NECESSARY OR ADVISABLE IN THE INTEREST
OF THE NATIONAL SECURITY."  THAT DETERMINATION REQUIRES AN EVALUATION
OF THE RISK OF INJURY TO THE "NATIONAL SECURITY" THAT THE EMPLOYEE'S
RETENTION WOULD CREATE, WHICH IN TURN WOULD SEEM NECESSARILY TO BE A
FUNCTION, NOT ONLY OF THE CHARACTER OF THE EMPLOYEE AND THE LIKELIHOOD
OF HIS MISCONDUCTING HIMSELF, BUT ALSO OF THE NATURE OF THE POSITION HE
OCCUPIES AND ITS RELATIONSHIP TO THE "NATIONAL SECURITY."  THAT IS, IT
MUST BE DETERMINED WHETHER THE POSITION IS ONE IN WHICH THE EMPLOYEE'S
MISCONDUCT WOULD AFFECT THE "NATIONAL SECURITY."  THAT, OF COURSE,
WOULD NOT BE NECESSARY IF "NATIONAL SECURITY" WERE USED IN THE ACT IN A
SENSE SO BROAD AS TO BE INVOLVED IN ALL ACTIVITIES OF THE GOVERNMENT,
FOR THEN THE RELATIONSHIP TO THE "NATIONAL SECURITY" WOULD FOLLOW FROM
THE VERY FACT OF EMPLOYMENT.  FOR THE REASONS SET FORTH BELOW, HOWEVER,
WE CONCLUDE (1) THAT THE TERM "NATIONAL SECURITY" IS USED IN THE ACT IN
A DEFINITE AND LIMITED SENSE AND RELATES ONLY TO THOSE ACTIVITIES WHICH
ARE DIRECTLY CONCERNED WITH THE NATION'S SAFETY, AS DISTINGUISHED FROM
THE GENERAL WELFARE; AND (2) THAT NO DETERMINATION HAS BEEN MADE THAT
PETITIONER'S POSITION WAS AFFECTED WITH THE "NATIONAL SECURITY," AS
THAT TERM IS USED IN THE ACT.  IT FOLLOWS THAT HIS DISMISSAL WAS NOT
AUTHORIZED BY THE 1950 ACT AND HENCE VIOLATED THE VETERANS' PREFERENCE
ACT. 

                     I. 

IN INTERPRETING THE 1950 ACT, IT IS IMPORTANT TO NOTE THAT THAT ACT
IS NOT THE ONLY, NOR EVEN THE PRIMARY, SOURCE OF AUTHORITY TO DISMISS
GOVERNMENT EMPLOYEES.  THE GENERAL PERSONNEL LAWS - THE LLOYD
LAFOLLETTE (FN4) AND VETERANS' PREFERENCE ACTS (FN5) - AUTHORIZE
DISMISSALS FOR "SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE
SERVICE," AND THE GROUND WHICH WE CONCLUDE WAS THE BASIS FOR
PETITIONER'S DISCHARGE HERE - A REASONABLE DOUBT AS TO HIS LOYALTY -
WAS RECOGNIZED AS A "CAUSE" FOR DISMISSAL UNDER THOSE PROCEDURES AS
EARLY AS 1942.  (FN6)  INDEED, THE PRESIDENT'S SO-CALLED LOYALTY
PROGRAM, EXEC. ORDER NO. 9835, 12 FED. REG. 1935, WHICH PRESCRIBED AN
ABSOLUTE STANDARD OF LOYALTY TO BE MET BY ALL EMPLOYEES REGARDLESS OF
POSITION, HAD BEEN ESTABLISHED PURSUANT TO THAT GENERAL AUTHORITY THREE
YEARS PRIOR TO THE 1950 ACT AND REMAINED IN EFFECT FOR NEARLY THREE
YEARS AFTER ITS PASSAGE.  (FN7)  THUS THERE WAS NO WANT OF SUBSTANTIVE
AUTHORITY TO DISMISS EMPLOYEES ON LOYALTY GROUNDS, AND THE QUESTION FOR
DECISION HERE IS NOT WHETHER AN EMPLOYEE CAN BE DISMISSED ON SUCH
GROUNDS BUT ONLY THE EXTENT TO WHICH THE SUMMARY PROCEDURES AUTHORIZED
BY THE 1950 ACT ARE AVAILABLE IN SUCH A CASE. 

AS NOTED ABOVE, THE ISSUE TURNS ON THE MEANING OF "NATIONAL
SECURITY," AS USED IN THE ACT.  WHILE THAT TERM IS NOT DEFINED IN THE
ACT, WE THINK IT CLEAR FROM THE STATUTE AS A WHOLE THAT THAT TERM WAS
INTENDED TO COMPREHEND ONLY THOSE ACTIVITIES OF THE GOVERNMENT THAT ARE
DIRECTLY CONCERNED WITH THE PROTECTION OF THE NATION FROM INTERNAL
SUBVERSION OR FOREIGN AGGRESSION, AND NOT THOSE WHICH CONTRIBUTE TO THE
STRENGTH OF THE NATION ONLY THROUGH THEIR IMPACT ON THE GENERAL
WELFARE. 

VIRTUALLY CONCLUSIVE OF THIS NARROW MEANING OF "NATIONAL SECURITY" IS
THE FACT THAT, HAD CONGRESS INTENDED THE TERM IN A SENSE BROAD ENOUGH
TO INCLUDE ALL ACTIVITIES OF THE GOVERNMENT, IT WOULD HAVE GRANTED THE
POWER TO TERMINATE EMPLOYMENT "IN THE INTEREST OF THE NATIONAL
SECURITY" TO ALL AGENCIES OF THE GOVERNMENT.  INSTEAD, CONGRESS
SPECIFIED 11 NAMED AGENCIES TO WHICH THE ACT SHOULD APPLY, THE
CHARACTER OF WHICH REVEALS, WITHOUT DOUBT, A PURPOSE TO SINGLE OUT
THOSE AGENCIES WHICH ARE DIRECTLY CONCERNED WITH THE NATIONAL DEFENSE
AND WHICH HAVE CUSTODY OVER INFORMATION THE COMPROMISE OF WHICH MIGHT
ENDANGER THE COUNTRY'S SECURITY, THE SO-CALLED "SENSITIVE" AGENCIES. 
THUS, OF THE 11 NAMED AGENCIES, 8 ARE CONCERNED WITH MILITARY
OPERATIONS OR WEAPONS DEVELOPMENT, AND THE OTHER 3, WITH INTERNATIONAL
RELATIONS, INTERNAL SECURITY, AND THE STOCK-PILING OF STRATEGIC
MATERIALS.  NOR IS THIS CONCLUSION VITIATED BY THE GRANT OF AUTHORITY
TO THE PRESIDENT, IN SEC. 3 OF THE ACT, TO EXTEND THE ACT TO SUCH OTHER
AGENCIES AS HE "MAY, FROM TIME TO TIME, DEEM NECESSARY IN THE BEST
INTERESTS OF NATIONAL SECURITY."  RATHER, THE CHARACTER OF THE NAMED
AGENCIES INDICATES THE CHARACTER OF THE DETERMINATION REQUIRED TO BE
MADE TO EFFECT SUCH AN EXTENSION.  AWARE OF THE DIFFICULTIES OF
ATTEMPTING AN EXCLUSIVE ENUMERATION AND OF THE UNDESIRABILITY OF A
RIGID CLASSIFICATION IN THE FACE OF CHANGING CIRCUMSTANCES, CONGRESS
SIMPLY ENUMERATED THOSE AGENCIES WHICH IT DETERMINED TO BE AFFECTED
WITH THE "NATIONAL SECURITY" AND AUTHORIZED THE PRESIDENT, BY MAKING A
SIMILAR DETERMINATION, TO ADD ANY OTHER AGENCIES WHICH WERE, OR BECAME,
"SENSITIVE."  THAT IT WAS CONTEMPLATED THAT THIS POWER WOULD BE
EXERCISED "FROM TIME TO TIME" CONFIRMS THE PURPOSE TO ALLOW FOR
CHANGING CIRCUMSTANCES AND TO REQUIRE A SELECTIVE JUDGMENT, NECESSARILY
IMPLYING THAT THE STANDARD TO BE APPLIED IS A LESS THAN ALL-INCLUSIVE
ONE. 

THE LIMITATION OF THE ACT TO THE ENUMERATED AGENCIES IS PARTICULARLY
SIGNIFICANT IN THE LIGHT OF THE FACT THAT EXEC. ORDER NO. 9835,
ESTABLISHING THE LOYALTY PROGRAM, WAS IN FULL EFFECT AT THE TIME OF THE
CONSIDERATION AND PASSAGE OF THE ACT.  IN THAT ORDER, THE PRESIDENT HAD
EXPRESSED HIS VIEW THAT IT WAS OF "VITAL IMPORTANCE" THAT ALL EMPLOYEES
OF THE GOVERNMENT BE OF "COMPLETE AND UNSWERVING LOYALTY" AND HAD
PRESCRIBED A MINIMUM LOYALTY STANDARD TO BE APPLIED TO ALL EMPLOYEES
UNDER THE NORMAL CIVIL SERVICE PROCEDURES.  HAD CONGRESS CONSIDERED THE
OBJECTIVE OF INSURING THE "UNSWERVING LOYALTY" OF ALL EMPLOYEES,
REGARDLESS OF POSITION, AS A MATTER OF "NATIONAL SECURITY" TO BE
EFFECTUATED BY THE SUMMARY PROCEDURES AUTHORIZED BY THE ACT, RATHER
THAN SIMPLY A DESIRABLE PERSONNEL POLICY TO BE IMPLEMENTED UNDER THE
NORMAL CIVIL SERVICE PROCEDURES, IT SURELY WOULD NOT HAVE LIMITED THE
ACT TO SELECTED AGENCIES.  PRESUMABLY, THEREFORE, CONGRESS MEANT
SOMETHING MORE BY THE "INTEREST OF THE NATIONAL SECURITY" THAN THE
GENERAL INTEREST THE NATION HAS IN THE LOYALTY OF EVEN "NON-SENSITIVE"
EMPLOYEES. 

WE CAN FIND NO JUSTIFICATION FOR REJECTING THIS IMPLICATION OF THE
LIMITED PURPOSE OF THE ACT OR FOR INFERRING THE UNLIMITED POWER
CONTENDED FOR BY THE GOVERNMENT.  WHERE APPLICABLE, THE ACT AUTHORIZES
THE AGENCY HEAD SUMMARILY TO SUSPEND AN EMPLOYEE PENDING INVESTIGATION
AND, AFTER CHARGES AND A HEARING, FINALLY TO TERMINATE HIS EMPLOYMENT,
SUCH TERMINATION NOT BEING SUBJECT TO APPEAL.  THERE IS AN OBVIOUS
JUSTIFICATION FOR THE SUMMARY SUSPENSION POWER WHERE THE EMPLOYEE
OCCUPIES A "SENSITIVE" POSITION IN WHICH HE COULD CAUSE SERIOUS DAMAGE
TO THE NATIONAL SECURITY DURING THE DELAY INCIDENT TO AN INVESTIGATION
AND THE PREPARATION OF CHARGES.  LIKEWISE, THERE IS A REASONABLE BASIS
FOR THE VIEW THAT AN AGENCY HEAD WHO MUST BEAR THE RESPONSIBILITY FOR
THE PROTECTION OF CLASSIFIED INFORMATION COMMITTED TO HIS CUSTODY
SHOULD HAVE THE FINAL SAY IN DECIDING WHETHER TO REPOSE HIS TRUST IN AN
EMPLOYEE WHO HAS ACCESS TO SUCH INFORMATION.  ON THE OTHER HAND, IT IS
DIFFICULT TO JUSTIFY SUMMARY SUSPENSIONS AND UNREVIEWABLE DISMISSALS ON
LOYALTY GROUNDS OF EMPLOYEES WHO ARE NOT IN "SENSITIVE" POSITIONS AND
WHO ARE THUS NOT SITUATED WHERE THEY COULD BRING ABOUT ANY DISCERNIBLE
ADVERSE EFFECTS ON THE NATION'S SECURITY.  IN THE ABSENCE OF AN
IMMEDIATE THREAT OF HARM TO THE "NATIONAL SECURITY," THE NORMAL
DISMISSAL PROCEDURES SEEM FULLY ADEQUATE AND THE JUSTIFICATION FOR
SUMMARY POWERS DISAPPEARS.  INDEED, IN VIEW OF THE STIGMA ATTACHED TO
PERSONS DISMISSED ON LOYALTY GROUNDS, THE NEED FOR PROCEDURAL
SAFEGUARDS SEEMS EVEN GREATER THAN IN OTHER CASES, AND WE WILL NOT
LIGHTLY ASSUME THAT CONGRESS INTENDED TO TAKE AWAY THOSE SAFEGUARDS IN
THE ABSENCE OF SOME OVERRIDING NECESSITY, SUCH AS EXISTS IN THE CASE OF
EMPLOYEES HANDLING DEFENSE SECRETS.    THE 1950 ACT ITSELF REFLECTS
CONGRESS' CONCERN FOR THE PROCEDURAL RIGHTS OF EMPLOYEES AND ITS DESIRE
TO LIMIT THE UNREVIEWABLE DISMISSAL POWER TO THE MINIMUM SCOPE
NECESSARY TO THE PURPOSE OF PROTECTING ACTIVITIES AFFECTED WITH THE
"NATIONAL SECURITY."  A PROVISO TO SEC. 1 OF THE ACT PROVIDES THAT A
DISMISSAL BY ONE AGENCY UNDER THE POWER GRANTED BY THE ACT "SHALL NOT
AFFECT THE RIGHT OF SUCH OFFICER OR EMPLOYEE TO SEEK OR ACCEPT
EMPLOYMENT IN ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT," IF THE
CIVIL SERVICE COMMISSION DETERMINES THAT THE EMPLOYEE IS ELIGIBLE FOR
SUCH OTHER EMPLOYMENT.  THAT IS, THE UNREVIEWABLE DISMISSAL POWER WAS
TO BE USED ONLY FOR THE LIMITED PURPOSE OF REMOVING THE EMPLOYEE FROM
THE POSITION IN WHICH HIS PRESENCE HAD BEEN DETERMINED TO ENDANGER THE
"NATIONAL SECURITY"; IT COULD AFFECT HIS RIGHT TO EMPLOYMENT IN OTHER
AGENCIES ONLY IF THE CIVIL SERVICE COMMISSION, AFTER REVIEW, REFUSED TO
CLEAR HIM FOR SUCH EMPLOYMENT.  THIS EFFORT TO PRESERVE THE EMPLOYEE'S
PROCEDURAL RIGHTS TO THE MAXIMUM EXTENT POSSIBLE HARDLY SEEMS
CONSISTENT WITH AN INTENT TO DEFINE THE SCOPE OF THE DISMISSAL POWER IN
TERMS OF THE INDEFINITE AND VIRTUALLY UNLIMITED MEANING FOR WHICH THE
RESPONDENTS CONTEND. 

MOREOVER, IF CONGRESS INTENDED THE TERM TO HAVE SUCH A BROAD MEANING
THAT ALL POSITIONS IN THE GOVERNMENT COULD BE SAID TO BE AFFECTED WITH
THE "NATIONAL SECURITY," THE RESULT WOULD BE THAT THE 1950 ACT, THOUGH
IN FORM BUT AN EXCEPTION TO THE GENERAL PERSONNEL LAWS, COULD BE
UTILIZED EFFECTIVELY TO SUPERSEDE THOSE LAWS.  FOR WHY COULD IT NOT BE
SAID THAT NATIONAL SECURITY IN THAT SENSE REQUIRES NOT MERELY LOYAL AND
TRUSTWORTHY EMPLOYEES BUT ALSO THOSE THAT ARE INDUSTRIOUS AND
EFFICIENT?  THE RELATIONSHIP OF THE JOB TO THE NATIONAL SECURITY BEING
THE SAME, ITS DEMONSTRATED INADEQUATE PERFORMANCE BECAUSE OF
INEFFICIENCY OR INCOMPETENCE WOULD SEEM TO PRESENT A SURER THREAT TO
NATIONAL SECURITY, IN THE SENSE OF THE GENERAL WELFARE, THAN A MERE
DOUBT AS TO THE EMPLOYEE'S LOYALTY. 

FINALLY, THE CONCLUSION WE DRAW FROM THE FACE OF THE ACT THAT
"NATIONAL SECURITY" WAS USED IN A LIMITED AND DEFINITE SENSE IS AMPLY
SUPPORTED BY THE LEGISLATIVE HISTORY OF THE ACT. 

IN THE FIRST PLACE, IT WAS CONSTANTLY EMPHASIZED THAT THE BILL, FIRST
INTRODUCED AS S. 1561 IN THE 80TH CONGRESS AND PASSED AS H.R. 7439 IN
THE 81ST CONGRESS, WAS INTENDED TO APPLY, OR TO BE EXTENDED, ONLY TO
"SENSITIVE" AGENCIES, A TERM USED TO IMPLY A CLOSE AND IMMEDIATE
CONCERN WITH THE DEFENSE OF THE NATION.  (FN8)  THUS THE SENATE
COMMITTEE ON ARMED SERVICES, IN REPORTING OUT S. 1561, STATED: 

"THIS BILL PROVIDES AUTHORITY TO TERMINATE EMPLOYMENT OF INDISCREET
OR DISLOYAL EMPLOYEES WHO ARE EMPLOYED IN AREAS OF THE GOVERNMENT WHICH
ARE SENSITIVE FROM THE STANDPOINT OF NATIONAL SECURITY. 

     *         *    *         *         * 

"SECTION 3 WILL PERMIT THE PRESIDENT TO DETERMINE ADDITIONAL
SENSITIVE AREAS AND INCLUDE SUCH AREAS IN THE SCOPE OF THE AUTHORITIES
CONTAINED IN THIS BILL. 

    *         *         *         *         * 

"INSOFAR AS THE ADDITION OF SEC. 3 IS CONCERNED, IT WAS RECOGNIZED BY
ALL WITNESSES THAT THERE WERE OTHER SENSITIVE AREAS WITHIN THE VARIOUS
DEPARTMENTS OF THE GOVERNMENT WHICH ARE NOW, OR MIGHT IN THE FUTURE
BECOME, DEEPLY INVOLVED IN NATIONAL SECURITY  ...  .  IN VIEW  ...  OF
THE FACT THAT THERE ARE NOW AND WILL BE IN THE FUTURE OTHER SENSITIVE
AREAS OF EQUAL IMPORTANCE TO THE NATIONAL SECURITY, IT IS BELIEVED THAT
THE PRESIDENT SHOULD HAVE AUTHORITY TO MAKE A FINDING CONCERNING SUCH
AREAS AND BY EXECUTIVE ACTION PLACE THOSE AREAS UNDER THE AUTHORITIES
CONTAINED IN THIS ACT."  (FN9)

THE HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE REPORTED THAT
"THE PROVISIONS OF THE BILL EXTEND ONLY TO DEPARTMENTS AND AGENCIES
WHICH ARE CONCERNED WITH VITAL MATTERS AFFECTING THE NATIONAL SECURITY
OF OUR NATION."  (FN10)  THE COMMITTEE REPORTS ON H.R. 7439 IN THE NEXT
CONGRESS SIMILARLY REFERRED TO THE BILL AS GRANTING THE DISMISSAL POWER
ONLY TO THE HEADS OF THE "SENSITIVE" AGENCIES.  (FN11)  WHILE THESE
REFERENCES RELATE PRIMARILY TO THE AGENCIES TO BE COVERED BY THE ACT,
RATHER THAN TO THE EXERCISE OF THE POWER WITHIN AN AGENCY, THE STANDARD
FOR BOTH IS THE SAME - IN THE "INTERESTS OF THE NATIONAL SECURITY" -
AND THE STATEMENTS THUS CLEARLY INDICATE THE RESTRICTED SENSE IN WHICH
"NATIONAL SECURITY" WAS USED.  IN SHORT, "NATIONAL SECURITY" IS
AFFECTED ONLY BY "SENSITIVE" ACTIVITIES. 

SECONDLY, THE HISTORY MAKES CLEAR THAT THE ACT WAS INTENDED TO
AUTHORIZE THE SUSPENSION AND DISMISSAL ONLY OF PERSONS IN SENSITIVE
POSITIONS.  THROUGHOUT THE HEARINGS, COMMITTEE REPORTS, AND DEBATES,
THE BILL WAS DESCRIBED AS BEING DESIGNED TO PROVIDE FOR THE DISMISSAL
OF "SECURITY RISKS."  (FN12)  IN TURN, THE EXAMPLES GIVEN OF WHAT MIGHT
BE A "SECURITY RISK" ALWAYS ENTAILED EMPLOYEES HAVING ACCESS TO
CLASSIFIED MATERIALS; THEY WERE SECURITY RISKS BECAUSE OF THE RISK THEY
POSED OF INTENTIONAL OR INADVERTENT DISCLOSURE OF CONFIDENTIAL
INFORMATION.  (FN13)  MR. LARKIN, A REPRESENTATIVE OF THE DEPARTMENT OF
DEFENSE, WHICH DEPARTMENT HAD REQUESTED AND DRAFTED THE BILL, MADE THIS
CONSIDERATION MORE EXPLICIT: 

"THEY ARE SECURITY RISKS BECAUSE OF THEIR ACCESS TO CONFIDENTIAL AND
CLASSIFIED MATERIAL  ...  . BUT, IF THEY DO NOT HAVE CLASSIFIED
MATERIAL, WHY, THERE IS NO NOTION THAT THEY ARE SECURITY RISKS TO THE
UNITED STATES.  THEY ARE SECURITY RISKS TO THE EXTENT OF HAVING ACCESS
TO CLASSIFIED MATERIAL."  (FN14) 

"A PERSON IS ACCUSED OF BEING DISLOYAL, BUT IS CLEARED BY THE LOYALTY
BOARD, BECAUSE THERE IS NOT ENOUGH EVIDENCE AGAINST HIM.  IF THAT
PERSON IS NOT IN A SENSITIVE JOB, IT IS NOT OF ANY FURTHER CONCERN TO
US.  WE ARE WILLING TO TAKE THE VIEW, THAT WHILE WE MIGHT HAVE
MISGIVINGS ABOUT HIS LOYALTY, HE CANNOT PREJUDICE OUR SECURITY BECAUSE
HE DOES NOT HAVE ACCESS TO ANY OF THE CLASSIFIED OR TOP SECRET
MATERIAL."  (FN15) 

IT IS CLEAR, THEREFORE, BOTH FROM THE FACE OF THE ACT AND THE
LEGISLATIVE HISTORY, THAT "NATIONAL SECURITY" WAS NOT USED IN THE ACT
IN AN ALL-INCLUSIVE SENSE, BUT WAS INTENDED TO REFER ONLY TO THE
PROTECTION OF "SENSITIVE" ACTIVITIES.  IT FOLLOWS THAT AN EMPLOYEE CAN
BE DISMISSED "IN THE INTEREST OF THE NATIONAL SECURITY" UNDER THE ACT
ONLY IF HE OCCUPIES A "SENSITIVE" POSITION, AND THUS THAT A CONDITION
PRECEDENT TO THE EXERCISE OF THE DISMISSAL AUTHORITY IS A DETERMINATION
BY THE AGENCY HEAD THAT THE POSITION OCCUPIED IS ONE AFFECTED WITH THE
"NATIONAL SECURITY."  WE NOW TURN TO AN EXAMINATION OF THE SECRETARY'S
ACTION TO SHOW THAT NO SUCH DETERMINATION WAS MADE AS TO THE POSITION
OCCUPIED BY PETITIONER. 

                   II. 

THE SECRETARY'S ACTION IN DISMISSING THE PETITIONER WAS EXPRESSLY
TAKEN PURSUANT TO EXEC.  ORDER NO. 10450, 18 FED. REG. 2489, (FN16)
PROMULGATED IN APRIL 1953 TO PROVIDE UNIFORM STANDARDS AND PROCEDURES
FOR THE EXERCISE BY AGENCY HEADS OF THE SUSPENSION AND DISMISSAL POWERS
UNDER THE 1950 ACT.  THAT ORDER PRESCRIBES AS THE STANDARD FOR
DISMISSAL, AND THE DISMISSAL NOTICE GIVEN TO PETITIONER CONTAINED, A
DETERMINATION BY THE SECRETARY THAT THE EMPLOYEE'S RETENTION IN
EMPLOYMENT "IS NOT CLEARLY CONSISTENT WITH THE INTERESTS OF NATIONAL
SECURITY."  (FN17)  DESPITE THIS VERBAL FORMULA, HOWEVER, IT IS OUR
VIEW THAT THE EXECUTIVE ORDER DOES NOT IN FACT REQUIRE THE AGENCY HEAD
TO MAKE ANY DETERMINATION WHATEVER ON THE RELATIONSHIP OF THE
EMPLOYEE'S RETENTION TO THE "NATIONAL SECURITY" IF THE CHARGES AGAINST
HIM ARE WITHIN THE CATEGORIES OF THE CHARGES AGAINST PETITIONER - THAT
IS, CHARGES WHICH REFLECT ON THE EMPLOYEE'S LOYALTY.  RATHER, AS WE
READ THE ORDER, IT ENJOINS UPON THE AGENCY HEADS THE DUTY OF
DISCHARGING ANY EMPLOYEE OF DOUBTFUL LOYALTY, IRRESPECTIVE OF THE
CHARACTER OF HIS JOB AND ITS RELATIONSHIP TO THE "NATIONAL SECURITY." 
THAT IS, THE EXECUTIVE ORDER SEEMS AN ADVERSE DETERMINATION AS TO
LOYALTY TO SATISFY THE REQUIREMENTS OF THE STATUTE WITHOUT MORE. 

THE OPENING PREAMBLE TO THE ORDER RECITES, AMONG OTHER THINGS, THAT
"THE INTERESTS OF THE NATIONAL SECURITY REQUIRE" THAT "ALL" GOVERNMENT
EMPLOYEES BE PERSONS "OF COMPLETE AND UNSWERVING LOYALTY."  IT WOULD
SEEM TO FOLLOW THAT AN EMPLOYEE'S RETENTION CANNOT BE "CLEARLY
CONSISTENT" WITH THE "INTERESTS OF THE NATIONAL SECURITY" AS THUS
DEFINED UNLESS HE IS "CLEARLY" LOYAL - THAT IS, UNLESS THERE IS NO
DOUBT AS TO HIS LOYALTY.  AND SEC. 8(A) INDICATES THAT THAT IS IN FACT
WHAT WAS INTENDED BY THE ORDER.  THAT SECTION PROVIDES THAT THE
INVESTIGATION OF AN EMPLOYEE PURSUANT TO THE ORDER SHALL BE DESIGNED TO
DEVELOP INFORMATION "AS TO WHETHER  ...  HIS EMPLOYMENT IS CLEARLY
CONSISTENT WITH THE INTERESTS OF THE NATIONAL SECURITY," AND PRESCRIBES
CERTAIN CATEGORIES OF FACTS TO WHICH "SUCH" INFORMATION SHALL RELATE. 
THE FIRST CATEGORY, SEC. 8(A)(1), INCLUDES NONLOYALTY-ORIENTED FACTS
WHICH, IN GENERAL, MIGHT REFLECT UPON THE EMPLOYEE'S RELIABILITY,
TRUSTWORTHINESS, OR SUSCEPTIBILITY TO COERCION, SUCH AS DISHONESTY,
DRUNKENNESS, SEXUAL PERVERSION, MENTAL DEFECTS, OR OTHER REASONS TO
BELIEVE THAT HE IS SUBJECT TO INFLUENCE OR COERCION.  SECTION 8(A)(1)
EXPRESSLY PROVIDES, HOWEVER, THAT SUCH FACTS ARE RELEVANT ONLY
"DEPENDING ON THE RELATION OF THE GOVERNMENT EMPLOYMENT TO THE NATIONAL
SECURITY."  THE REMAINING CATEGORIES INCLUDE FACTS WHICH, IN GENERAL,
REFLECT UPON THE EMPLOYEE'S "LOYALTY," SUCH AS ACTS OF ESPIONAGE,
ADVOCACY OF VIOLENT OVERTHROW OF THE GOVERNMENT, SYMPATHETIC
ASSOCIATION WITH PERSONS WHO SO ADVOCATE, OR SYMPATHETIC ASSOCIATION
WITH SUBVERSIVE ORGANIZATIONS.  SEC. 8(A)(2)-(8).  SIGNIFICANTLY, THERE
IS WHOLLY ABSENT FROM THESE CATEGORIES - UNDER WHICH THE CHARGES
AGAINST PETITIONER WERE EXPRESSLY FRAMED - ANY QUALIFICATION MAKING
THEIR RELEVANCE DEPENDENT UPON THE RELATIONSHIP OF THE EMPLOYEE'S
POSITION TO THE NATIONAL SECURITY.  THE INFERENCE WE DRAW IS THAT IN
SUCH CASES THE RELATIONSHIP TO THE NATIONAL SECURITY IS IRRELEVANT, AND
THAT AN ADVERSE "LOYALTY" DETERMINATION IS SUFFICIENT EX PROPRIO VIGORE
TO REQUIRE DISCHARGE. 

ARGUABLY, THIS INFERENCE CAN BE AVOIDED ON THE GROUND THAT SEC. 8(A)
RELATES ONLY TO THE SCOPE OF INFORMATION TO BE DEVELOPED IN THE
INVESTIGATION AND NOT TO THE EVALUATION OF IT BY THE AGENCY HEAD. 
THAT IS, WHILE LOYALTY INFORMATION IS TO BE DEVELOPED IN ALL CASES
REGARDLESS OF THE NATURE OF THE EMPLOYMENT, THAT DOES NOT MEAN THAT THE
AGENCY HEAD SHOULD NOT CONSIDER THE NATURE OF THE EMPLOYMENT IN
DETERMINING WHETHER THE DEROGATORY INFORMATION IS SUFFICIENT TO MAKE
THE EMPLOYEE'S CONTINUED EMPLOYMENT NOT "CLEARLY CONSISTENT" WITH THE
"NATIONAL SECURITY."  NO DOUBT THAT IS TRUE TO THE EXTENT THAT THE
GREATER THE SENSITIVITY OF THE POSITION THE SMALLER MAY BE THE DOUBTS
THAT WOULD JUSTIFY TERMINATION; THE ORDER UNDOUBTEDLY LEAVES IT OPEN TO
AN AGENCY HEAD TO APPLY A STRICTER STANDARD IN SOME CASES THAN IN
OTHERS, DEPENDING ON THE NATURE OF THE EMPLOYMENT.  ON THE OTHER HAND,
BY MAKING LOYALTY INFORMATION RELEVANT IN ALL CASES, REGARDLESS OF THE
NATURE OF THE JOB, SEC. 8(A) SEEMS STRONGLY TO IMPLY THAT THERE IS A
MINIMUM STANDARD OF LOYALTY THAT MUST BE MET BY ALL EMPLOYEES.  IT
WOULD FOLLOW THAT THE AGENCY HEAD MAY TERMINATE EMPLOYMENT IN CASES
WHERE THAT MINIMUM STANDARD IS NOT MET WITHOUT MAKING ANY INDEPENDENT
DETERMINATION OF THE POTENTIAL IMPACT OF THE PERSON'S EMPLOYMENT ON THE
NATIONAL SECURITY. 

OTHER PROVISIONS OF THE ORDER CONFIRM THE INFERENCES THAT MAY BE
DRAWN FROM SEC. 8(A).  THUS SEC. 3(B) DIRECTS EACH AGENCY HEAD TO
DESIGNATE AS "SENSITIVE" THOSE POSITIONS IN HIS AGENCY "THE OCCUPANT OF
WHICH COULD BRING ABOUT, BY VIRTUE OF THE NATURE OF THE POSITION, A
MATERIAL ADVERSE EFFECT ON THE NATIONAL SECURITY."  BY DEFINITION,
THEREFORE, SOME EMPLOYEES ARE ADMITTEDLY NOT IN A POSITION TO BRING
ABOUT SUCH AN EFFECT.  NEVERTHELESS, THE ORDER MAKES THIS DISTINCTION
RELEVANT ONLY FOR PURPOSES OF DETERMINING THE SCOPE OF THE
INVESTIGATION TO BE CONDUCTED, NOT FOR PURPOSES OF LIMITING THE
DISMISSAL POWER TO SUCH "SENSITIVE" POSITIONS.  SECTION 3(A) IS MORE
EXPLICIT.  THAT PROVIDES THAT THE APPOINTMENT OF ALL EMPLOYEES SHALL BE
MADE SUBJECT TO AN INVESTIGATION THE SCOPE OF WHICH SHALL DEPEND UPON
THE DEGREE OF ADVERSE EFFECT ON THE NATIONAL SECURITY THE OCCUPANT OF
THE POSITION COULD BRING ABOUT, BUT WHICH "IN NO EVENT" IS TO BE LESS
THAN A PRESCRIBED MINIMUM.  BUT THE SOLE PURPOSE OF SUCH AN
INVESTIGATION IS TO PROVIDE A BASIS FOR A "CLEARLY CONSISTENT"
DETERMINATION.  THUS THE REQUIREMENT OF A MINIMUM INVESTIGATION OF ALL
PERSONS APPOINTED IMPLIES THAT AN ADVERSE "CLEARLY CONSISTENT"
DETERMINATION MAY BE MADE AS TO ANY SUCH EMPLOYEE, REGARDLESS OF THE
POTENTIAL ADVERSE EFFECT HE COULD CAUSE TO THE NATIONAL SECURITY. 
FINALLY, THE SECOND "WHEREAS" CLAUSE OF THE PREAMBLE RECITES AS A
JUSTIFICATION FOR THE ORDER THAT "ALL PERSONS  ... PRIVILEGED TO BE
EMPLOYED  ...  BY THE GOVERNMENT SHOULD BE ADJUDGED BY MUTUALLY
CONSISTENT AND NO LESS THAN MINIMUM STANDARDS," THUS IMPLYING THAT THE
ORDER PRESCRIBES MINIMUM STANDARDS THAT ALL EMPLOYEES MUST MEET
IRRESPECTIVE OF THE  CHARACTER OF THE POSITIONS HELD, ONE OF WHICH IS
THE "COMPLETE AND UNSWERVING LOYALTY" STANDARD RECITED IN THE FIRST
"WHEREAS" CLAUSE OF THE PREAMBLE. 

CONFIRMATION OF THIS READING OF THE ORDER IS FOUND IN ITS HISTORY. 
EXEC. ORDER NO. 9835, SUPRA, AS AMENDED BY EXEC. ORDER NO. 10241, 16
FED. REG. 3690, HAD ESTABLISHED THE LOYALTY PROGRAM UNDER WHICH ALL
EMPLOYEES, REGARDLESS OF THEIR POSITIONS, WERE MADE SUBJECT TO
DISCHARGE IF THERE WAS A "REASONABLE DOUBT" AS TO THEIR LOYALTY.  THAT
ORDER WAS EXPRESSLY REVOKED BY SEC. 12 OF THE PRESENT EXECUTIVE ORDER. 
THERE IS NO INDICATION, HOWEVER, THAT IT WAS INTENDED THEREBY TO LIMIT
THE SCOPE OF THE PERSONS SUBJECT TO A LOYALTY STANDARD.  AND ANY SUCH
IMPLICATION IS NEGATIVED BY THE REMARKABLE SIMILARITY IN THE PREAMBLES
TO THE TWO ORDERS AND IN THE KINDS OF INFORMATION CONSIDERED TO BE
RELEVANT TO THE ULTIMATE DETERMINATIONS.  (FN18)  IN SHORT, ALL
EMPLOYEES WERE STILL TO BE SUBJECT TO AT LEAST A MINIMUM LOYALTY
STANDARD, THOUGH UNDER NEW PROCEDURES WHICH DO NOT AFFORD A RIGHT TO
APPEAL TO THE CIVIL SERVICE COMMISSION.   WE THEREFORE INTERPRET THE
EXECUTIVE ORDER AS MEANING THAT, WHEN "LOYALTY" CHARGES ARE INVOLVED,
AN EMPLOYEE MAY BE DISMISSED REGARDLESS OF THE CHARACTER OF HIS
POSITION IN THE GOVERNMENT SERVICE, AND THAT THE AGENCY HEAD NEED MAKE
NO EVALUATION AS TO THE EFFECT WHICH CONTINUANCE OF HIS EMPLOYMENT
MIGHT HAVE UPON THE "NATIONAL SECURITY."  WE RECOGNIZE THAT THIS
INTERPRETATION OF THE ORDER RESTS UPON A CHAIN OF INFERENCES DRAWN FROM
LESS THAN EXPLICIT PROVISIONS.  BUT THE ORDER WAS PROMULGATED TO GUIDE
THE AGENCY HEADS IN THE EXERCISE OF THE DISMISSAL POWER, AND ITS
FAILURE TO STATE EXPLICITLY WHAT DETERMINATIONS ARE REQUIRED LEAVES NO
CHOICE TO THE AGENCY HEADS BUT TO FOLLOW THE MOST REASONABLE INFERENCES
TO BE DRAWN.  MOREOVER, WHATEVER THE PRACTICAL REASONS THAT MAY HAVE
DICTATED THE AWKWARD FORM OF THE ORDER, ITS FAILURE TO STATE EXPLICITLY
WHAT WAS MEANT IS THE FAULT OF THE GOVERNMENT.  ANY AMBIGUITIES SHOULD
THEREFORE BE RESOLVED AGAINST THE GOVERNMENT, AND WE WILL NOT BURDEN
THE EMPLOYEE WITH THE ASSUMPTION THAT AN AGENCY HEAD, IN STATING NO
MORE THAN THE FORMAL CONCLUSION THAT RETENTION OF THE EMPLOYEE IS NOT
"CLEARLY CONSISTENT WITH THE INTERESTS OF NATIONAL SECURITY," HAS MADE
ANY SUBSIDIARY DETERMINATIONS NOT CLEARLY REQUIRED BY THE EXECUTIVE
ORDER. 

FROM THE SECRETARY'S DETERMINATION THAT PETITIONER'S EMPLOYMENT WAS
NOT "CLEARLY CONSISTENT WITH THE INTERESTS OF NATIONAL SECURITY,"
THEREFORE, IT MAY BE ASSUMED ONLY THAT THE SECRETARY FOUND THE CHARGES
TO BE TRUE AND THAT THEY CREATED A REASONABLE DOUBT AS TO PETITIONER'S
LOYALTY.  NO OTHER SUBSIDIARY FINDING MAY BE INFERRED, HOWEVER, FOR,
UNDER THE EXECUTIVE ORDER AS WE HAVE INTERPRETED IT, NO OTHER FINDING
WAS REQUIRED TO SUPPORT THE SECRETARY'S ACTION.  (FN19) 

FROM OUR HOLDINGS (1) THAT NOT ALL POSITIONS IN THE GOVERNMENT ARE
AFFECTED WITH THE "NATIONAL SECURITY" AS THAT TERM IS USED IN THE 1950
ACT, AND (2) THAT NO DETERMINATION HAS BEEN MADE THAT PETITIONER'S
POSITION WAS ONE IN WHICH HE COULD ADVERSELY AFFECT THE "NATIONAL
SECURITY," IT NECESSARILY FOLLOWS THAT PETITIONER'S DISCHARGE WAS NOT
AUTHORIZED BY THE 1950 ACT.  IN REACHING THIS CONCLUSION, WE ARE NOT
CONFRONTED WITH THE PROBLEM OF REVIEWING THE SECRETARY'S EXERCISE OF
DISCRETION, SINCE THE BASIS FOR OUR DECISION IS SIMPLY THAT THE
STANDARD PRESCRIBED BY THE EXECUTIVE ORDER AND APPLIED BY THE SECRETARY
IS NOT IN CONFORMITY WITH THE ACT.  (FN20)  SINCE PETITIONER'S
DISCHARGE WAS NOT AUTHORIZED BY THE 1950 ACT AND HENCE VIOLATED THE
VETERANS' PREFERENCE ACT, THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  SEC. 1.  "NOTWITHSTANDING THE PROVISIONS OF SECTION 6 OF THE ACT
OF AUGUST 24, 1912 (37 STAT. 555), AS AMENDED (5 U.S.C. 652), OR THE
PROVISIONS OF ANY OTHER LAW, THE SECRETARY OF STATE; SECRETARY OF
COMMERCE; ATTORNEY GENERAL; THE SECRETARY OF DEFENSE; THE SECRETARY OF
THE ARMY; THE SECRETARY OF THE NAVY; THE SECRETARY OF THE AIR FORCE;
THE SECRETARY OF THE TREASURY; ATOMIC ENERGY COMMISSION; THE CHAIRMAN,
NATIONAL SECURITY RESOURCES BOARD; OR THE DIRECTOR, NATIONAL ADVISORY
COMMITTEE FOR AERONAUTICS, MAY, IN HIS ABSOLUTE DISCRETION AND WHEN
DEEMED NECESSARY IN THE INTEREST OF NATIONAL SECURITY, SUSPEND, WITHOUT
PAY, ANY CIVILIAN OFFICER OR EMPLOYEE OF THE DEPARTMENT OF STATE
(INCLUDING THE FOREIGN SERVICE OF THE UNITED STATES), DEPARTMENT OF
COMMERCE, DEPARTMENT OF JUSTICE, DEPARTMENT OF DEFENSE, DEPARTMENT OF
THE ARMY, DEPARTMENT OF THE NAVY, DEPARTMENT OF THE AIR FORCE, COAST
GUARD, ATOMIC ENERGY COMMISSION, NATIONAL SECURITY RESOURCES BOARD, OR
NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, RESPECTIVELY, OR OF THEIR
SEVERAL FIELD SERVICES:  PROVIDED, THAT TO THE EXTENT THAT SUCH AGENCY
HEAD DETERMINES THAT THE INTERESTS OF THE NATIONAL SECURITY PERMIT, THE
EMPLOYEE CONCERNED SHALL BE NOTIFIED OF THE REASONS FOR HIS SUSPENSION
AND WITHIN THIRTY DAYS AFTER SUCH NOTIFICATION ANY SUCH PERSON SHALL
HAVE AN OPPORTUNITY TO SUBMIT ANY STATEMENTS OR AFFIDAVITS TO THE
OFFICIAL DESIGNATED BY THE HEAD OF THE AGENCY CONCERNED TO SHOW WHY HE
SHOULD BE REINSTATED OR RESTORED TO DUTY.  THE AGENCY HEAD CONCERNED
MAY, FOLLOWING SUCH INVESTIGATION AND REVIEW AS HE DEEMS NECESSARY,
TERMINATE THE EMPLOYMENT OF SUCH SUSPENDED CIVILIAN OFFICER OR EMPLOYEE
WHENEVER HE SHALL DETERMINE SUCH TERMINATION NECESSARY OR ADVISABLE IN
THE INTEREST OF THE NATIONAL SECURITY OF THE UNITED STATES, AND SUCH
DETERMINATION BY THE AGENCY HEAD CONCERNED SHALL BE CONCLUSIVE AND
FINAL:  PROVIDED FURTHER, THAT ANY EMPLOYEE HAVING A PERMANENT OR
INDEFINITE APPOINTMENT, AND HAVING COMPLETED HIS PROBATIONARY OR TRIAL
PERIOD, WHO IS A CITIZEN OF THE UNITED STATES WHOSE EMPLOYMENT IS
SUSPENDED UNDER THE AUTHORITY OF THIS ACT, SHALL BE GIVEN AFTER HIS
SUSPENSION AND BEFORE HIS EMPLOYMENT IS TERMINATED UNDER THE AUTHORITY
OF THIS ACT, (1) A WRITTEN STATEMENT WITHIN THIRTY DAYS AFTER HIS
SUSPENSION OF THE CHARGES AGAINST HIM, WHICH SHALL BE SUBJECT TO
AMENDMENT WITHIN THIRTY DAYS THEREAFTER AND WHICH SHALL BE STATED AS
SPECIFICALLY AS SECURITY CONSIDERATIONS PERMIT; (2) AN OPPORTUNITY
WITHIN THIRTY DAYS THEREAFTER (PLUS AN ADDITIONAL THIRTY DAYS IF THE
CHARGES ARE AMENDED) TO ANSWER SUCH CHARGES AND TO SUBMIT AFFIDAVITS;
(3) A HEARING, AT THE EMPLOYEE'S REQUEST, BY A DULY CONSTITUTED AGENCY
AUTHORITY FOR THIS PURPOSE; (4) A REVIEW OF HIS CASE BY THE AGENCY
HEAD, OR SOME OFFICIAL DESIGNATED BY HIM, BEFORE A DECISION ADVERSE TO
THE EMPLOYEE IS MADE FINAL; AND (5) A WRITTEN STATEMENT OF THE DECISION
OF THE AGENCY HEAD:  PROVIDED FURTHER, THAT ANY PERSON WHOSE EMPLOYMENT
IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT MAY, IN
THE DISCRETION OF THE AGENCY HEAD CONCERNED, BE REINSTATED OR RESTORED
TO DUTY, AND IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION
FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN
AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON
WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR
TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR
TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH
PERSON:  PROVIDED FURTHER, THAT THE TERMINATION OF EMPLOYMENT HEREIN
PROVIDED SHALL NOT AFFECT THE RIGHT OF SUCH OFFICER OR EMPLOYEE TO SEEK
OR ACCEPT EMPLOYMENT IN ANY OTHER DEPARTMENT OR AGENCY OF THE
GOVERNMENT:  PROVIDED FURTHER, THAT THE HEAD OF ANY DEPARTMENT OR
AGENCY CONSIDERING THE APPOINTMENT OF ANY PERSON WHOSE EMPLOYMENT HAS
BEEN TERMINATED UNDER THE PROVISIONS OF THIS ACT MAY MAKE SUCH
APPOINTMENT ONLY AFTER CONSULTATION WITH THE CIVIL SERVICE COMMISSION,
WHICH AGENCY SHALL HAVE THE AUTHORITY AT THE WRITTEN REQUEST OF EITHER
THE HEAD OF SUCH AGENCY OR SUCH EMPLOYEE TO DETERMINE WHETHER ANY SUCH
PERSON IS ELIGIBLE FOR EMPLOYMENT BY ANY OTHER AGENCY OR DEPARTMENT OF
THE GOVERNMENT. 

     *         *         *   *         * 

"SEC. 3.  THE PROVISIONS OF THIS ACT SHALL APPLY TO SUCH OTHER
DEPARTMENTS AND AGENCIES OF THE GOVERNMENT AS THE PRESIDENT MAY, FROM
TIME TO TIME, DEEM NECESSARY IN THE BEST INTERESTS OF NATIONAL
SECURITY.  IF ANY DEPARTMENTS OR AGENCIES ARE INCLUDED BY THE
PRESIDENT, HE SHALL SO REPORT TO THE COMMITTEES ON THE ARMED SERVICES
OF THE CONGRESS."  64 STAT. 476, 5 U.S.C. SECS. 22-1, 22-3. 

FN2  SEC. 1, EXEC. ORDER NO. 10450, 18 FED. REG. 2489, SET FORTH IN
THE APPENDIX, POST, P. 558. 

FN3  SECRETARY FOLSOM, THE PRESENT SECRETARY OF THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE, HAS BEEN SUBSTITUTED AS RESPONDENT FOR
THE FORMER SECRETARY HOBBY. 

FN4  SEC. 6, 37 STAT. 555, AS AMENDED, 5 U.S.C. SEC. 652. 

FN5  SEC. 14, 58 STAT. 390, AS AMENDED, 5 U.S.C. SEC. 863. 

FN6  CIVIL SERVICE WAR REGULATIONS, SEC. 18.2(C)(7), SEPTEMBER 26,
1942, 5 CFR, CUM.  SUPP., SEC. 18.2(C)(7). 

FN7  EMPLOYEES DISMISSED UNDER THE LOYALTY PROGRAM WERE ENTITLED TO
REVIEW BY THE CIVIL SERVICE COMMISSION'S LOYALTY REVIEW BOARD, THUS
SATISFYING THE REQUIREMENTS OF SEC. 14 OF THE VETERANS' PREFERENCE
ACT.  SEE KUTCHER V. GRAY, 91 U.S. APP. D.C. 266, 199 F.2D 783
(C.A.D.C. CIR.). 

FN8  CONGRESS' RELUCTANCE TO EXTEND SUCH POWERS TO ALL AGENCIES OF
THE GOVERNMENT IS ALSO INDICATED BY THE PRIOR LEGISLATION.  AT VARIOUS
TIMES, SINCE 1942, SIMILAR SUMMARY DISMISSAL STATUTES, OF LIMITED
DURATION, HAD BEEN ENACTED, BUT THESE HAD BEEN LIMITED TO THE OBVIOUSLY
"SENSITIVE" MILITARY DEPARTMENTS, 56 STAT. 1053, 63 STAT. 1023, AND THE
STATE DEPARTMENT, 60 STAT. 458.  THE 1950 ACT, INTRODUCED AT THE
REQUEST OF THE DEPARTMENT OF DEFENSE, WAS DESIGNED TO MAKE THE
AUTHORITY PERMANENT, INCLUDE SEVERAL OTHER "SENSITIVE" AGENCIES, AND
AFFORD GREATER FLEXIBILITY BY PERMITTING THE PRESIDENT TO EXTEND THE
ACT TO OTHER AGENCIES WHICH BECAME "SENSITIVE."  H.R. REP. NO. 2330,
81ST CONG., 2D SESS., P. 3; S. REP. NO. 1155, 80TH CONG., 2D SESS., P.
4. 

FN9  S. REP. NO. 1155, 80TH CONG., 2D SESS., PP. 2-4. 

FN10  H.R. REP. NO. 2264, 80TH CONG., 2D SESS., P. 2. 

FN11  H.R. REP. NO. 2330, 81ST CONG., 2D SESS., PP. 2-5; S. REP. NO.
2158, 81ST CONG., 2D SESS., P. 2. 

FN12  E.G., S. REP. NO. 2158, 81ST CONG., 2D SESS., P. 2:  "THE
PURPOSE OF THE BILL IS TO INCREASE THE AUTHORITY OF THE HEADS OF
GOVERNMENT DEPARTMENTS ENGAGED IN SENSITIVE ACTIVITIES TO SUMMARILY
SUSPEND EMPLOYEES CONSIDERED TO BE BAD SECURITY RISKS  ...  ." 

FN13  FOR EXAMPLE, MR. MURRAY, THE CHAIRMAN OF THE COMMITTEE ON POST
OFFICE AND CIVIL SERVICE, WHICH HAD REPORTED THE BILL, GAVE THE
FOLLOWING ILLUSTRATION OF THE PURPOSE OF THE BILL IN OPENING THE DEBATE
IN THE HOUSE:  "FOR INSTANCE, AN EMPLOYEE WHO IS WORKING IN SOME HIGHLY
SENSITIVE AGENCY DOING VERY CONFIDENTIAL, SECRET DEFENSE WORK AND WHO
GOES OUT AND GETS TOO MUCH LIQUOR MAY UNINTENTIONALLY OR UNWITTINGLY,
BECAUSE OF HIS CONDITION, CONFIDE TO SOMEONE WHO MAY BE A SUBVERSIVE,
SECRET MILITARY INFORMATION ABOUT THE CHARACTER OF WORK HE IS DOING IN
THAT DEPARTMENT.  HE IS, BY HIS CONDUCT, A BAD SECURITY RISK AND SHOULD
BE DISCHARGED."  96 CONG. REC. 10017. 

FN14  HEARINGS, HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, ON
H.R. 7439, 81ST CONG., 2D SESS., P. 67. 

FN15  ID., AT P. 72. 

FN16  THE RELEVANT PORTIONS OF THE EXECUTIVE ORDER, AS IT STOOD AT
THE TIME OF PETITIONER'S SUSPENSION AND DISCHARGE, ARE PRINTED IN THE
APPENDIX, POST, P. 558. 

FN17  SECTION 6 OF THE ORDER, WHICH FORMALLY PRESCRIBES THE STANDARDS
FOR "TERMINATION," IN TERMS ADOPTS THE VERY LANGUAGE OF THE STATUTE,
"NECESSARY OR ADVISABLE IN THE INTERESTS OF THE NATIONAL SECURITY." 
REINSTATED" UNLESS THE AGENCY HEAD DETERMINES THAT REINSTATEMENT IS
"CLEARLY CONSISTENT WITH THE INTERESTS OF THE NATIONAL SECURITY." 
SINCE NONREINSTATEMENT OF A SUSPENDED EMPLOYEE IS EQUIVALENT TO THE
TERMINATION OF HIS EMPLOYMENT, IT IS APPARENT THAT THE "CLEARLY
CONSISTENT" STANDARD OF SEC. 7 IS THE CONTROLLING ONE.  SEE ALSO SECS.
2, 8, AND 3(A).  IN THE VIEW WE TAKE OF THE CASE, WE NEED NOT DETERMINE
WHETHER THE "CLEARLY CONSISTENT" STANDARD IS, AS PETITIONER CONTENDS, A
MORE ONEROUS ONE THAN THE "NECESSARY OR ADVISABLE" STANDARD. 

FN18  EXECUTIVE ORDER NO. 9835 RECITED THAT IT WAS "OF VITAL
IMPORTANCE" THAT ALL EMPLOYEES BE OF "COMPLETE AND UNSWERVING LOYALTY";
EXEC. ORDER NO. 10450 RECITES THAT "THE INTERESTS OF THE NATIONAL
SECURITY REQUIRE" THAT ALL EMPLOYEES BE OF "COMPLETE AND UNSWERVING
LOYALTY."  EXECUTIVE ORDER NO. 9835 LISTED SIX FACTORS TO BE CONSIDERED
"IN CONNECTION WITH THE DETERMINATION OF DISLOYALTY" (PT. V, SEC. 2);
THESE ARE REPEATED IN SUBSTANTIALLY IDENTICAL FORM IN SECS. 8(A)(2),
(4), (5), (6), AND (7) OF EXEC. ORDER NO. 10450 AS "INFORMATION AS TO
WHETHER  ...  THE EMPLOYEE'S RETENTION IS CLEARLY CONSISTENT WITH THE
INTEREST OF THE NATIONAL SECURITY." 

FN19  THAT THE SECRETARY SIMILARLY INTERPRETED THE EXECUTIVE ORDER
AND DID NOT IN FACT DETERMINE THAT PETITIONER'S JOB WAS A "SENSITIVE"
ONE IS CONFIRMED BY THE RESPONDENTS' CONCESSION THAT PETITIONER "DID
NOT HAVE ACCESS TO GOVERNMENT SECRETS OR CLASSIFIED MATERIAL AND WAS
NOT IN A POSITION TO INFLUENCE POLICY AGAINST THE INTERESTS OF THE
GOVERNMENT."  RESPONDENTS' BRIEF, PP. 3-4; RECORD, P. 40. 

FN20  NO CONTENTION IS MADE THAT THE EXECUTIVE ORDER MIGHT BE
SUSTAINED UNDER THE PRESIDENT'S EXECUTIVE POWER EVEN THOUGH IN
VIOLATION OF THE VETERANS' PREFERENCE ACT.  THERE IS NO BASIS FOR SUCH
AN ARGUMENT IN ANY EVENT, FOR IT IS CLEAR FROM THE FACE OF THE
EXECUTIVE ORDER THAT THE PRESIDENT DID NOT INTEND TO OVERRIDE STATUTORY
LIMITATIONS ON THE DISMISSAL OF EMPLOYEES, AND PROMULGATED THE ORDER
SOLELY AS AN IMPLEMENTATION OF THE 1950 ACT.  THUS SEC. 6 OF THE ORDER
PURPORTS TO AUTHORIZE DISMISSALS ONLY "IN ACCORDANCE WITH THE SAID ACT
OF AUGUST 26, 1950," AND SIMILAR REFERENCES ARE MADE IN SECS. 4, 5, AND
7.  THIS EXPLICIT LIMITATION IN THE SUBSTANTIVE PROVISIONS OF THE ORDER
IS OF COURSE NOT WEAKENED BY THE INCLUSION OF THE "CONSTITUTION," AS
WELL AS THE 1950 AND OTHER ACTS, IN THE OMNIBUS LIST OF AUTHORITIES
RECITED IN THE PREAMBLE TO THE ORDER; IT IS FROM THE CONSTITUTION THAT
THE PRESIDENT DERIVES ANY AUTHORITY TO IMPLEMENT THE 1950 ACT AT ALL. 
WHEN THE PRESIDENT EXPRESSLY CONFINES HIS ACTION TO THE LIMITS OF
STATUTORY AUTHORITY, THE VALIDITY OF THE ACTION MUST BE DETERMINED
SOLELY BY THE CONGRESSIONAL LIMITATIONS WHICH THE PRESIDENT SOUGHT TO
RESPECT, WHATEVER MIGHT BE THE RESULT WERE THE PRESIDENT EVER TO ASSERT
HIS INDEPENDENT POWER AGAINST THAT OF CONGRESS.    FOR DISSENTING
OPINION OF MR. JUSTICE CLARK, JOINED BY MR. JUSTICE REED AND MR.
JUSTICE MINTON, SEE POST, P. 565. 

                APPENDIX TO OPINION OF THE COURT. 

                       EXECUTIVE ORDER 10450. 

(18 FED. REG. 2489, AS AMENDED BY EXEC. ORDER NO. 10491, OCT. 13,
1953, 18 FED. REG. 6583.) 

WHEREAS THE INTERESTS OF THE NATIONAL SECURITY REQUIRE THAT ALL
PERSONS PRIVILEGED TO BE EMPLOYED IN THE DEPARTMENTS AND AGENCIES OF
THE GOVERNMENT, SHALL BE RELIABLE, TRUSTWORTHY, OF GOOD CONDUCT AND
CHARACTER, AND OF COMPLETE AND UNSWERVING LOYALTY TO THE UNITED STATES;
AND: 

WHEREAS THE AMERICAN TRADITION THAT ALL PERSONS SHOULD RECEIVE FAIR,
IMPARTIAL, AND EQUITABLE TREATMENT AT THE HANDS OF THE GOVERNMENT
REQUIRES THAT ALL PERSONS SEEKING THE PRIVILEGE OF EMPLOYMENT OR
PRIVILEGED TO BE EMPLOYED IN THE DEPARTMENTS AND AGENCIES OF THE
GOVERNMENT BE ADJUDGED BY MUTUALLY CONSISTENT AND NO LESS THAN MINIMUM
STANDARDS AND PROCEDURES AMONG THE DEPARTMENTS AND AGENCIES GOVERNING
THE EMPLOYMENT AND RETENTION IN EMPLOYMENT OF PERSONS IN THE FEDERAL
SERVICE:  NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY
THE CONSTITUTION AND STATUTES OF THE UNITED STATES, INCLUDING SECTION
1753 OF THE REVISED STATUTES OF THE UNITED STATES (5 U.S.C. 631); THE
CIVIL SERVICE ACT OF 1883 (22 STAT. 403; 5 U.S.C.  632, ET SEQ.);
AND THE ACT OF AUGUST 26, 1950, 64 STAT. 476 (5 U.S.C. 22-1, ET SEQ.),
AND AS PRESIDENT OF THE UNITED STATES, AND DEEMING SUCH ACTION
NECESSARY IN THE BEST INTERESTS OF THE NATIONAL SECURITY, IT IS HEREBY
ORDERED AS FOLLOWS: 

THE SAID ACT OF AUGUST 26, 1950, AND EXECUTIVE ORDER NO. 10237 OF APRIL
26, 1951, THE PROVISIONS OF THAT ACT SHALL APPLY TO ALL OTHER
DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 

SEC. 2.  THE HEAD OF EACH DEPARTMENT AND AGENCY OF THE GOVERNMENT
SHALL BE RESPONSIBLE FOR ESTABLISHING AND MAINTAINING WITHIN HIS
DEPARTMENT OR AGENCY AN EFFECTIVE PROGRAM TO INSURE THAT THE EMPLOYMENT
AND RETENTION IN EMPLOYMENT OF ANY CIVILIAN OFFICER OR EMPLOYEE WITHIN
THE DEPARTMENT OR AGENCY IS CLEARLY CONSISTENT WITH THE INTERESTS OF
THE NATIONAL SECURITY. 

SEC. 3.  (A) THE APPOINTMENT OF EACH CIVILIAN OFFICER OR EMPLOYEE IN
ANY DEPARTMENT OR AGENCY OF THE GOVERNMENT SHALL BE MADE SUBJECT TO
INVESTIGATION.  THE SCOPE OF THE INVESTIGATION SHALL BE DETERMINED IN
THE FIRST INSTANCE ACCORDING TO THE DEGREE OF ADVERSE EFFECT THE
OCCUPANT OF THE POSITION SOUGHT TO BE FILLED COULD BRING ABOUT, BY
VIRTUE OF THE NATURE OF THE POSITION, ON THE NATIONAL SECURITY, BUT IN
NO EVENT SHALL THE INVESTIGATION INCLUDE LESS THAN A NATIONAL AGENCY
CHECK (INCLUDING A CHECK OF THE FINGERPRINT FILES OF THE FEDERAL BUREAU
OF INVESTIGATION), AND WRITTEN INQUIRIES TO APPROPRIATE LOCAL LAW
ENFORCEMENT AGENCIES, FORMER EMPLOYERS AND SUPERVISORS, REFERENCES, AND
SCHOOLS ATTENDED BY THE PERSON UNDER INVESTIGATION:  PROVIDED, THAT
UPON REQUEST OF THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED, THE
CIVIL SERVICE COMMISSION MAY, IN ITS DISCRETION, AUTHORIZE SUCH LESS
INVESTIGATION AS MAY MEET THE REQUIREMENTS OF THE NATIONAL SECURITY
WITH RESPECT TO PER-DIEM, INTERMITTENT, TEMPORARY, OR SEASONAL
EMPLOYEES, OR ALIENS EMPLOYED OUTSIDE THE UNITED STATES.  SHOULD THERE
DEVELOP AT ANY STAGE OF INVESTIGATION INFORMATION INDICATING THAT THE
EMPLOYMENT OF ANY SUCH PERSON MAY NOT BE CLEARLY CONSISTENT WITH THE
INTERESTS OF THE NATIONAL SECURITY, THERE SHALL BE CONDUCTED WITH
RESPECT TO SUCH PERSON A FULL FIELD INVESTIGATION, OR SUCH LESS
INVESTIGATION AS SHALL BE SUFFICIENT TO ENABLE THE HEAD OF THE
DEPARTMENT OR AGENCY CONCERNED TO DETERMINE WHETHER RETENTION OF SUCH
PERSON IS CLEARLY CONSISTENT WITH THE INTEREST OF THE NATIONAL
SECURITY. 

(B)  THE HEAD OF ANY DEPARTMENT OR AGENCY SHALL DESIGNATE, OR CAUSE
TO BE DESIGNATED, ANY POSITION WITHIN HIS DEPARTMENT OR AGENCY THE
OCCUPANT OF WHICH COULD BRING ABOUT, BY VIRTUE OF THE NATURE OF THE
POSITION, A MATERIAL ADVERSE EFFECT ON THE NATIONAL SECURITY AS A
SENSITIVE POSITION.  ANY POSITION SO DESIGNATED SHALL BE FILLED OR
OCCUPIED ONLY BY A PERSON WITH RESPECT TO WHOM A FULL FIELD
INVESTIGATION HAS BEEN CONDUCTED:  PROVIDED, THAT A PERSON OCCUPYING A
SENSITIVE POSITION AT THE TIME IT IS DESIGNATED AS SUCH MAY CONTINUE TO
OCCUPY SUCH POSITION PENDING THE COMPLETION OF A FULL FIELD
INVESTIGATION, SUBJECT TO THE OTHER PROVISIONS OF THIS ORDER:  AND
PROVIDED FURTHER, THAT IN CASE OF EMERGENCY A SENSITIVE POSITION MAY BE
FILLED FOR A LIMITED PERIOD BY A PERSON WITH RESPECT TO WHOM A FULL
FIELD PREAPPOINTMENT INVESTIGATION HAS NOT BEEN COMPLETED IF THE HEAD
OF THE DEPARTMENT OR AGENCY CONCERNED FINDS THAT SUCH ACTION IS
NECESSARY IN THE NATIONAL INTEREST, WHICH FINDING SHALL BE MADE A PART
OF THE RECORDS OF SUCH DEPARTMENT OR AGENCY. 

SEC. 4.  THE HEAD OF EACH DEPARTMENT AND AGENCY SHALL REVIEW, OR
CAUSE TO BE REVIEWED, THE CASES OF ALL CIVILIAN OFFICERS AND EMPLOYEES
WITH RESPECT TO WHOM THERE HAS BEEN CONDUCTED A FULL FIELD
INVESTIGATION UNDER EXECUTIVE ORDER NO. 9835 OF MARCH 21, 1947, AND,
AFTER SUCH FURTHER INVESTIGATION AS MAY BE APPROPRIATE, SHALL RE
ADJUDICATE, OR CAUSE TO BE RE-ADJUDICATED, IN ACCORDANCE WITH THE SAID
ACT OF AUGUST 26, 1950, SUCH OF THOSE CASES AS HAVE NOT BEEN
ADJUDICATED UNDER A SECURITY STANDARD COMMENSURATE WITH THAT
ESTABLISHED UNDER THIS ORDER. 

SEC. 5.  WHENEVER THERE IS DEVELOPED OR RECEIVED BY ANY DEPARTMENT OR
AGENCY INFORMATION INDICATING THAT THE RETENTION IN EMPLOYMENT OF ANY
OFFICER OR EMPLOYEE OF THE GOVERNMENT MAY NOT BE CLEARLY CONSISTENT
WITH THE INTERESTS OF THE NATIONAL SECURITY, SUCH INFORMATION SHALL BE
FORWARDED TO THE HEAD OF THE EMPLOYING DEPARTMENT OR AGENCY OR HIS
REPRESENTATIVE, WHO, AFTER SUCH INVESTIGATION AS MAY BE APPROPRIATE,
SHALL REVIEW, OR CAUSE TO BE REVIEWED, AND, WHERE NECESSARY, RE
ADJUDICATE, OR CAUSE TO BE RE-ADJUDICATED, IN ACCORDANCE WITH THE SAID
ACT OF AUGUST 26, 1950, THE CASE OF SUCH OFFICER OR EMPLOYEE. 

SEC. 6.  SHOULD THERE DEVELOP AT ANY STAGE OF INVESTIGATION
INFORMATION INDICATING THAT THE EMPLOYMENT OF ANY OFFICER OR EMPLOYEE
OF THE GOVERNMENT MAY NOT BE CLEARLY CONSISTENT WITH THE INTERESTS OF
THE NATIONAL SECURITY, THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED
OR HIS REPRESENTATIVE SHALL IMMEDIATELY SUSPEND THE EMPLOYMENT OF THE
PERSON INVOLVED IF HE DEEMS SUCH SUSPENSION NECESSARY IN THE INTERESTS
OF THE NATIONAL SECURITY AND, FOLLOWING SUCH INVESTIGATION AND REVIEW
AS HE DEEMS NECESSARY, THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED
SHALL TERMINATE THE EMPLOYMENT OF SUCH SUSPENDED OFFICER OR EMPLOYEE
WHENEVER HE SHALL DETERMINE SUCH TERMINATION NECESSARY OR ADVISABLE IN
THE INTERESTS OF THE NATIONAL SECURITY, IN ACCORDANCE WITH THE SAID ACT
OF AUGUST  26, 1950. 

SEC. 7.  ANY PERSON WHOSE EMPLOYMENT IS SUSPENDED OR TERMINATED UNDER
THE AUTHORITY GRANTED TO HEADS OF DEPARTMENTS AND AGENCIES BY OR IN
ACCORDANCE WITH THE SAID ACT OF AUGUST 26, 1950, OR PURSUANT TO THE
SAID EXECUTIVE ORDER NO. 9835 OR ANY OTHER SECURITY OR LOYALTY PROGRAM
RELATING TO OFFICERS OR EMPLOYEES OF THE GOVERNMENT, SHALL NOT BE
REINSTATED OR RESTORED TO DUTY OR REEMPLOYED IN THE SAME DEPARTMENT OR
AGENCY AND SHALL NOT BE REEMPLOYED IN ANY OTHER DEPARTMENT OR AGENCY,
UNLESS THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED FINDS THAT SUCH
REINSTATEMENT, RESTORATION, OR REEMPLOYMENT IS CLEARLY CONSISTENT WITH
THE INTERESTS OF THE NATIONAL SECURITY, WHICH FINDING SHALL BE MADE A
PART OF THE RECORDS OF SUCH DEPARTMENT OR AGENCY:  PROVIDED, THAT NO
PERSON WHOSE EMPLOYMENT HAS BEEN TERMINATED UNDER SUCH AUTHORITY
THEREAFTER MAY BE EMPLOYED BY ANY OTHER DEPARTMENT OR AGENCY EXCEPT
AFTER A DETERMINATION BY THE CIVIL SERVICE COMMISSION THAT SUCH PERSON
IS ELIGIBLE FOR SUCH EMPLOYMENT. 

SEC. 8.  (A) THE INVESTIGATIONS CONDUCTED PURSUANT TO THIS ORDER
SHALL BE DESIGNED TO DEVELOP INFORMATION AS TO WHETHER THE EMPLOYMENT
OR RETENTION IN EMPLOYMENT IN THE FEDERAL SERVICE OF THE PERSON BEING
INVESTIGATED IS CLEARLY CONSISTENT WITH THE INTERESTS OF THE NATIONAL
SECURITY.  SUCH INFORMATION SHALL RELATE, BUT SHALL NOT BE LIMITED, TO
THE FOLLOWING: 

(1)  DEPENDING ON THE RELATION OF THE GOVERNMENT EMPLOYMENT TO THE
NATIONAL SECURITY: 

(I)  ANY BEHAVIOR, ACTIVITIES, OR ASSOCIATIONS WHICH TEND TO SHOW
THAT THE INDIVIDUAL IS NOT RELIABLE OR TRUSTWORTHY. 

(II)  ANY DELIBERATE MISREPRESENTATIONS, FALSIFICATIONS, OR OMISSIONS
OF MATERIAL FACT. 

(III) ANY CRIMINAL, INFAMOUS, DISHONEST, IMMORAL, OR NOTORIOUSLY
DISGRACEFUL CONDUCT, HABITUAL USE OF INTOXICANTS TO EXCESS, DRUG
ADDICTION, OR SEXUAL PERVERSION. 

(IV)  AN ADJUDICATION OF INSANITY, OR TREATMENT FOR SERIOUS MENTAL OR
NEUROLOGICAL DISORDER WITHOUT SATISFACTORY EVIDENCE OF CURE.* 

*AFTER THE DATE OF PETITIONER'S DISCHARGE, THIS PARAGRAPH WAS
AMENDED, BY EXEC. ORDER NO. 10548, AUG. 2, 1954, 19 FED. REG. 4871, TO
READ: 

"(IV)  ANY ILLNESS, INCLUDING ANY MENTAL CONDITION, OF A NATURE WHICH
IN THE OPINION OF COMPETENT MEDICAL AUTHORITY MAY CAUSE SIGNIFICANT
DEFECT IN THE JUDGMENT OR RELIABILITY OF THE EMPLOYEE, WITH DUE REGARD
TO THE TRANSIENT OR CONTINUING EFFECT OF THE ILLNESS AND THE MEDICAL
FINDINGS IN SUCH CASE." 

(V)  ANY FACTS WHICH FURNISH REASON TO BELIEVE THAT THE INDIVIDUAL
MAY BE SUBJECTED TO COERCION, INFLUENCE, OR PRESSURE WHICH MAY CAUSE
HIM TO ACT CONTRARY TO THE BEST INTERESTS OF THE NATIONAL SECURITY. 

(2)  COMMISSION OF ANY ACT OF SABOTAGE, ESPIONAGE, TREASON, OR
SEDITION, OR ATTEMPTS THEREAT OR PREPARATION THEREFOR, OR CONSPIRING
WITH, OR AIDING OR ABETTING, ANOTHER TO COMMIT OR ATTEMPT TO COMMIT ANY
ACT OF SABOTAGE, ESPIONAGE, TREASON, OR SEDITION. 

(3)  ESTABLISHING OR CONTINUING A SYMPATHETIC ASSOCIATION WITH A
SABOTEUR, SPY, TRAITOR, SEDITIONIST, ANARCHIST, OR REVOLUTIONIST, OR
WITH AN ESPIONAGE OR OTHER SECRET AGENT OR REPRESENTATIVE OF A FOREIGN
NATION, OR ANY REPRESENTATIVE OF A FOREIGN NATION WHOSE INTERESTS MAY
BE INIMICAL TO THE INTERESTS OF THE UNITED STATES, OR WITH ANY PERSON
WHO ADVOCATES THE USE OF FORCE OR VIOLENCE TO OVERTHROW THE GOVERNMENT
OF THE UNITED STATES OR THE ALTERATION OF THE FORM OF GOVERNMENT OF THE
UNITED STATES BY UNCONSTITUTIONAL MEANS. 

(4)  ADVOCACY OF USE OF FORCE OR VIOLENCE TO OVERTHROW THE GOVERNMENT
OF THE UNITED STATES, OR OF THE ALTERATION OF THE FORM OF GOVERNMENT OF
THE UNITED STATES BY UNCONSTITUTIONAL MEANS. 

(5)  MEMBERSHIP IN, OR AFFILIATION OR SYMPATHETIC ASSOCIATION WITH,
ANY FOREIGN OR DOMESTIC ORGANIZATION, ASSOCIATION, MOVEMENT, GROUP, OR
COMBINATION OF PERSONS WHICH IS TOTALITARIAN, FASCIST, COMMUNIST, OR
SUBVERSIVE, OR WHICH HAS ADOPTED, OR SHOWS, A POLICY OF ADVOCATING OR
APPROVING THE COMMISION OF ACTS OF FORCE OR VIOLENCE TO DENY OTHER
PERSONS THEIR RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES, OR
WHICH SEEKS TO ALTER THE FORM OF GOVERNMENT OF THE UNITED STATES BY
UNCONSTITUTIONAL MEANS. 

(6)  INTENTIONAL, UNAUTHORIZED DISCLOSURE TO ANY PERSON OF SECURITY
INFORMATION, OR OF OTHER INFORMATION DISCLOSURE OF WHICH IS PROHIBITED
BY LAW, OR WILLFUL VIOLATION OR DISREGARD OF SECURITY REGULATIONS. 

(7)  PERFORMING OR ATTEMPTING TO PERFORM HIS DUTIES, OR OTHERWISE
ACTING, SO AS TO SERVE THE INTERESTS OF ANOTHER GOVERNMENT IN
PREFERENCE TO THE INTERESTS OF THE UNITED STATES. 

(8)  REFUSAL BY THE INDIVIDUAL, UPON THE GROUND OF CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION, TO TESTIFY BEFORE A CONGRESSIONAL
COMMITTEE REGARDING CHARGES OF HIS ALLEGED DISLOYALTY OR OTHER
MISCONDUCT. 

     *         *         *      *         * 

SEC. 10.  NOTHING IN THIS ORDER SHALL BE CONSTRUED AS ELIMINATING OR
MODIFYING IN ANY WAY THE REQUIREMENT FOR ANY INVESTIGATION OR ANY
DETERMINATION AS TO SECURITY WHICH MAY BE REQUIRED BY LAW. 

SEC. 11.  ON AND AFTER THE EFFECTIVE DATE OF THIS ORDER THE LOYALTY
REVIEW BOARD ESTABLISHED BY EXECUTIVE ORDER NO. 9835 OF MARCH 21, 1947,
SHALL NOT ACCEPT AGENCY FINDINGS FOR REVIEW, UPON APPEAL OR OTHERWISE
...  . 

SEC. 12.  EXECUTIVE ORDER NO. 9835 OF MARCH 21, 1947, AS AMENDED, IS
HEREBY REVOKED.  FOR THE PURPOSES DESCRIBED IN SECTION 11 HEREOF THE
LOYALTY REVIEW BOARD AND THE REGIONAL LOYALTY BOARDS OF THE CIVIL
SERVICE COMMISSION SHALL CONTINUE TO EXIST AND FUNCTION FOR A PERIOD OF
ONE HUNDRED AND TWENTY DAYS FROM THE EFFECTIVE DATE OF THIS ORDER, AND
THE DEPARTMENT OF JUSTICE SHALL CONTINUE TO FURNISH THE INFORMATION
DESCRIBED IN PARAGRAPH 3 OF PART III OF THE SAID EXECUTIVE ORDER NO.
9835, BUT DIRECTLY TO THE HEAD OF EACH DEPARTMENT AND AGENCY. 

     * *         *         *         * 

SEC. 15.  THIS ORDER SHALL BECOME EFFECTIVE THIRTY DAYS AFTER THE
DATE HEREOF. 

                                            DWIGHT D. EISENHOWER. 

THE WHITE HOUSE,

         APRIL 27, 1953. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

BELIEVING THAT THE COURT SHOULD NOT STRIKE DOWN THE PRESIDENT'S
EXECUTIVE ORDER ON EMPLOYEE SECURITY BY AN INTERPRETATION THAT
ADMITTEDLY "RESTS UPON A CHAIN OF INFERENCES," WE CANNOT AGREE TO THE
JUDGMENT OF REVERSAL.  IN OUR OPINION, THE CLEAR PURPOSE OF THE
CONGRESS IN ENACTING THE SUMMARY SUSPENSION ACT, 64 STAT. 476, IS
FRUSTRATED, AND THE COURT'S OPINION RAISES A SERIOUS QUESTION OF
PRESIDENTIAL POWER UNDER ARTICLE II OF THE CONSTITUTION WHICH IT LEAVES
ENTIRELY UNDECIDED. 

PETITIONER, A FOOD AND DRUG INSPECTOR EMPLOYED IN THE DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, WAS CHARGED WITH HAVING "ESTABLISHED AND
...  CONTINUED A CLOSE ASSOCIATION WITH INDIVIDUALS RELIABLY REPORTED
TO BE COMMUNISTS."  IT WAS FURTHER CHARGED THAT HE HAD "MAINTAINED A
CONTINUED AND SYMPATHETIC ASSOCIATION WITH THE NATURE FRIENDS OF
AMERICA, WHICH ORGANIZATION" IS ON THE ATTORNEY GENERAL'S LIST; AND "BY
HIS OWN ADMISSION, DONATED FUNDS" TO THAT GROUP, CONTRIBUTED SERVICES
TO IT AND ATTENDED SOCIAL GATHERINGS OF THE SAME.  PETITIONER DID NOT
ANSWER THE CHARGES BUT REPLIED THAT THEY CONSTITUTED AN INVASION OF HIS
PRIVATE RIGHTS OF ASSOCIATION.  ALTHOUGH ADVISED THAT HE COULD HAVE A
HEARING, HE REQUESTED NONE, AND WAS THEREAFTER DISMISSED.  THE
SECRETARY MADE A FORMAL DETERMINATION THAT PETITIONER'S CONTINUED
EMPLOYMENT WAS NOT "CLEARLY CONSISTENT WITH THE INTERESTS OF THE
NATIONAL SECURITY," A DETERMINATION ENTRUSTED TO HER BY THE SUSPENSION
ACT.  ALTHOUGH "SUCH DETERMINATION BY THE AGENCY HEAD CONCERNED SHALL
BE CONCLUSIVE AND FINAL" UNDER THE ACT, THE COURT, BY ITS
INTERPRETATION, FINDS "THAT NOT ALL POSITIONS IN THE GOVERNMENT ARE
AFFECTED WITH THE 'NATIONAL SECURITY' AS THAT TERM IS USED  ...  AND
THAT NO DETERMINATION HAS BEEN MADE THAT PETITIONER'S POSITION WAS ONE
IN WHICH HE COULD ADVERSELY AFFECT THE 'NATIONAL SECURITY.'"  IT,
THEREFORE, STRIKES DOWN THE PRESIDENT'S EXECUTIVE ORDER BECAUSE "THE
STANDARD PRESCRIBED BY IT AND APPLIED BY THE SECRETARY IS NOT IN
CONFORMITY WITH THE ACT."  THIS COMPELS THE RESTORATION OF THE
PETITIONER TO GOVERNMENT SERVICE,  WE CANNOT AGREE. 

WE HAVE READ THE ACT OVER AND OVER AGAIN, BUT FIND NO GROUND ON WHICH
TO INFER SUCH AN INTERPRETATION.  IT FLIES DIRECTLY IN THE FACE OF THE
LANGUAGE OF THE ACT AND THE LEGISLATIVE HISTORY.  THE PLAIN WORDS OF
SEC. 1 MAKE THE ACT APPLICABLE TO "ANY CIVILIAN OFFICER OR EMPLOYEE,"
NOT, AS THE MAJORITY WOULD HAVE IT, "ANY CIVILIAN OFFICER OR EMPLOYEE
IN A SENSITIVE POSITION."  THE COURT WOULD REQUIRE NOT ONLY A FINDING
THAT A PARTICULAR PERSON IS SUBVERSIVE, BUT ALSO THAT HE OCCUPIES A
SENSITIVE JOB.  OBVIOUSLY THIS MIGHT LEAVE THE GOVERNMENT HONEYCOMBED
WITH SUBVERSIVE EMPLOYEES. 

ALTHOUGH THE COURT ASSUMES THE VALIDITY OF THE PRESIDENT'S ACTION
UNDER SEC. 3 EXTENDING THE COVERAGE OF THE ACT TO ALL GOVERNMENT
AGENCIES, THE REASONING OF THE OPINION MAKES THAT EXTENSION A FORTIORI
UNAUTHORIZED.  THE LIMITATION THE COURT IMPOSES DEPRIVES THE EXTENSION
OF ANY FORCE, DESPITE THE FACT THAT SEC. 3 HAS NO LIMITING WORDS
WHATEVER.  AND THIS IS DONE IN THE FACE OF LEGISLATIVE HISTORY SHOWING
THAT CONGRESS CLEARLY CONTEMPLATED THAT THE COVERAGE MIGHT BE EXTENDED
WITHOUT LIMITATION "TO SUCH OTHER DEPARTMENTS AND AGENCIES OF THE
GOVERNMENT" THAT THE PRESIDENT THOUGHT ADVISABLE.  SENATOR BYRD
COMMENTED, "SECTION 3 GIVES THE PRESIDENT THE RIGHT TO CLASSIFY EVERY
AGENCY AS A SENSITIVE AGENCY  ...  .  HE COULD TAKE THE WHOLE
GOVERNMENT."  AND SENATOR CHAPMAN REMARKED, "I DO NOT SEE WHY THE WHOLE
GOVERNMENT IS NOT SENSITIVE AS FAR AS THAT IS CONCERNED."  HEARINGS
BEFORE THE SENATE COMMITTEE ON ARMED SERVICES, 81ST CONG., 2D SESS., ON
H.R. 7439, PP. 15-16.  ALSO, CONGRESSMAN HOLIFIELD, DURING DEBATES IN
THE HOUSE, STATED THAT THE ACT "APPLIES POTENTIALLY TO EVERY EXECUTIVE
AGENCY, NOT ONLY THE SENSITIVE ONES  ...  .  THERE IS NO DISTINCTION
MADE IN THE BILL BETWEEN SO-CALLED SENSITIVE EMPLOYEES, THAT IS,
EMPLOYEES WHO HAVE ACCESS TO CONFIDENTIAL AND SECRET INFORMATION, AND
THE REGULAR EMPLOYEES."  96 CONG. REC. 10023-10024. 

THE PRESIDENT BELIEVED THAT THE NATIONAL SECURITY REQUIRED THE
EXTENSION OF THE COVERAGE OF THE ACT TO ALL EMPLOYEES.  THAT WAS HIS
JUDGMENT, NOT OURS.  HE WAS GIVEN THAT POWER, NOT US.  BY THIS ACTION
THE COURT SO INTERPRETS THE ACT AS TO INTRUDE ITSELF INTO PRESIDENTIAL
POLICY MAKING.  THE COURT SHOULD NOT DO THIS, ESPECIALLY WHERE CONGRESS
HAS RATIFIED THE PRESIDENT'S ACTION.  AS REQUIRED BY THE ACT, THE
EXECUTIVE ORDER WAS REPORTED TO THE CONGRESS AND SOON THEREAFTER IT
CAME UP FOR DISCUSSION AND ACTION IN BOTH THE HOUSE AND THE SENATE.  IT
WAS THE SENSE OF THE CONGRESS AT THAT TIME THAT THE ORDER PROPERLY
CARRIED OUT THE STANDARDS OF THE ACT AND WAS IN ALL RESPECTS AN
EXPRESSION OF THE CONGRESSIONAL WILL.  99 CONG. REC. 4511-4543, 5818
5990.  IN ADDITION, CONGRESS HAS MADE APPROPRIATIONS EACH SUBSEQUENT
YEAR FOR INVESTIGATIONS, ETC., UNDER ITS PROVISIONS.  THIS IN ITSELF
"STANDS AS CONFIRMATION AND RATIFICATION OF THE ACTION OF THE CHIEF
EXECUTIVE."  FLEMING V. MOHAWK WRECKING & LUMBER CO., 331 U.S. 111,
116. 

THE PRESIDENT HAVING EXTENDED THE COVERAGE OF THE ACT TO THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, IT BECAME THE DUTY OF THE
SECRETARY TO DISMISS ANY EMPLOYEE WHENEVER SHE DEEMED IT "NECESSARY OR
ADVISABLE IN THE INTEREST OF NATIONAL SECURITY."  SHE MADE SUCH A
FINDING.  IT IS IMPLICIT IN HER ORDER OF DISMISSAL.  HER "EVALUATION AS
TO THE EFFECT WHICH CONTINUANCE OF PETITIONER'S EMPLOYMENT MIGHT HAVE
UPON THE 'NATIONAL SECURITY'" HAS BEEN MADE.  SHE DECIDED THAT HE
SHOULD BE DISMISSED.  UNDER THE ACT THIS DETERMINATION IS "CONCLUSIVE
AND FINAL." 

THERE IS STILL ANOTHER REASON WHY WE SHOULD SUSTAIN THE PRESIDENT'S
EXECUTIVE ORDER.  BY STRIKING IT DOWN, THE COURT RAISES A QUESTION AS
TO THE CONSTITUTIONAL POWER OF THE PRESIDENT TO AUTHORIZE DISMISSAL OF
EXECUTIVE EMPLOYEES WHOSE FURTHER EMPLOYMENT HE BELIEVES TO BE
INCONSISTENT WITH NATIONAL SECURITY.  THIS  POWER MIGHT ARISE FROM THE
GRANT OF EXECUTIVE POWER IN ARTICLE II OF THE CONSTITUTION, AND NOT
FROM THE CONGRESS.  THE OPINION OF THE MAJORITY AVOIDS THIS IMPORTANT
POINT WHICH MUST BE FACED BY ANY DECISION HOLDING AN EXECUTIVE ORDER
INOPERATIVE.*  IT IS THE POLICY OF THE COURT TO AVOID CONSTITUTIONAL
QUESTIONS WHERE POSSIBLE, PETERS V. HOBBY, 349 U.S. 331, 338, NOT TO
CREATE THEM. 

*THE MAJORITY EXCUSES ITS FAILURE TO PASS ON THIS QUESTION BY SAYING
THAT NO CONTENTION WAS MADE THAT THE PRESIDENT'S ORDER MIGHT BE
SUSTAINED UNDER HIS EXECUTIVE POWERS.  WE CANNOT AGREE.  THE GOVERNMENT
SPECIFICALLY ASSERTED THAT "IF CONGRESS HAD MEANT TO PROHIBIT THE
PRESIDENT FROM ACTING IN THIS RESPECT UNDER THE ACT A SERIOUS QUESTION
AS TO THE VALIDITY OF THAT ENACTMENT WOULD ARISE."  IT DEVOTED EIGHT
PAGES OF ITS BRIEF TO THIS POINT.  FURTHERMORE, THE COURT OF APPEALS
NOTED THAT IF IT "THOUGHT THE PRESIDENT'S ORDER INCONSISTENT WITH THE
ACT  ...  IT WOULD HAVE TO DECIDE THE CONSTITUTIONAL QUESTION THUS
PRESENTED."  96 U.S. APP. D.C. 379, 382, 226 F.2D 337, 340.  AS FURTHER
JUSTIFICATION, THE MAJORITY CONTENDS THAT THE PRESIDENT ACTED HERE ONLY
UNDER THE DIRECTIONS OF THE ACT.  IN ANSWER, WE NEED QUOTE ONLY THE
ENACTING CLAUSE OF THE PRESIDENT'S ORDER:  "NOW, THEREFORE, BY VIRTUE
OF THE AUTHORITY VESTED IN ME BY THE CONSTITUTION AND STATUTES OF THE
UNITED STATES  ... AND AS PRESIDENT OF THE UNITED STATES."  EXECUTIVE
ORDER NO. 10450, 18 FED. REG. 2489.  IN ISSUING THE ORDER, THE
PRESIDENT INVOKED ALL OF HIS POWERS, AND SINCE HIS ORDER IS VOIDED BY
THE MAJORITY AS NOT BEING IN CONFORMITY WITH THE ACT, THE QUESTION OF
THE SCOPE OF HIS OTHER CONSTITUTIONAL OR STATUTORY POWERS IS
PRESENTED. 

WE BELIEVE THE COURT'S ORDER HAS STRICKEN DOWN THE MOST EFFECTIVE
WEAPON AGAINST SUBVERSIVE ACTIVITY AVAILABLE TO THE GOVERNMENT.  IT IS
NOT REALISTIC TO SAY THAT THE GOVERNMENT CAN BE PROTECTED MERELY BY
APPLYING THE ACT TO SENSITIVE JOBS.  ONE NEVER KNOWS JUST WHICH JOB IS
SENSITVE.   THE JANITOR MIGHT PROVE TO BE IN AS IMPORTANT A SPOT
SECURITY-WISE AS THE TOP EMPLOYEE IN THE BUILDING.  THE CONGRESS
DECIDED THAT THE MOST EFFECTIVE WAY TO PROTECT THE GOVERNMENT WAS
THROUGH THE PROCEDURES LAID DOWN IN THE ACT.  THE PRESIDENT IMPLEMENTED
ITS PURPOSES BY REQUIRING THAT GOVERNMENT EMPLOYMENT BE "CLEARLY
CONSISTENT" WITH THE NATIONAL SECURITY.  THE PRESIDENT'S STANDARD IS
"COMPLETE AND UNSWERVING LOYALTY" NOT ONLY IN SENSITIVE PLACES BUT
THROUGHOUT THE GOVERNMENT.  THE PRESIDENT REQUIRES, AND EVERY EMPLOYEE
SHOULD GIVE, NO LESS.  THIS IS ALL THAT THE ACT AND THE ORDER REQUIRE. 
THEY SHOULD NOT BE SUBVERTED BY THE TECHNICAL INTERPRETATION THE
MAJORITY PLACES ON THEM TODAY.  WE WOULD AFFIRM. 
..END :






DESYLVA V. BALLENTINE 351 U.S. 570 


NO. 529.  ARGUED APRIL 25-26, 1956 - DECIDED JUNE 11, 1956 - 226 F.2D
623, AFFIRMED. 


THE COPYRIGHT ACT GRANTS TO THE AUTHOR, "OR THE WIDOW, WIDOWER, OR
CHILDREN OF THE AUTHOR, IF THE AUTHOR BE NOT LIVING," THE RIGHT OF
RENEWAL OF A COPYRIGHT FOR A FURTHER 28-YEAR TERM AFTER THE EXPIRATION
OF THE ORIGINAL 28-YEAR TERM.  HELD: 

1. AFTER THE AUTHOR'S DEATH, THE WIDOW AND CHILDREN OF THE AUTHOR
SUCCEED TO THE RIGHT OF RENEWAL AS A CLASS, AND ARE EACH ENTITLED TO
SHARE IN THE RENEWAL TERM OF THE COPYRIGHT.  PP. 573-580. 

2.  IN THE INSTANT CASE, AN ILLEGITIMATE CHILD OF THE AUTHOR, WHO
UNDER THE APPLICABLE STATE LAW WOULD BE AN HEIR OF THE AUTHOR, IS
WITHIN THE TERM "CHILDREN."  PP. 580-582. 

(A)  WHILE THE SCOPE OF A FEDERAL RIGHT IS A FEDERAL QUESTION, ITS
CONTENT MAY YET BE DETERMINED BY STATE RATHER THAN FEDERAL LAW,
ESPECIALLY WHERE THE LAW OF DOMESTIC RELATIONS IS CONCERNED.  P. 580. 

(B)  WHETHER AN ILLEGITIMATE CHILD IS WITHIN THE TERM "CHILDREN," AS
USED IN THIS PROVISION OF THE ACT, IS TO BE DETERMINED BY WHETHER,
UNDER STATE LAW, THE CHILD WOULD BE AN HEIR OF THE AUTHOR.  PP. 580
581. 

(C)  IN THE INSTANT CASE, THE ONLY STATE CONCERNED IS CALIFORNIA, AND
THE QUESTION IS TO BE DETERMINED WITH REFERENCE TO THE LAW OF THAT
STATE.  P. 581. 

(D)  UNDER SEC. 255 OF THE CALIFORNIA PROBATE CODE, AN ILLEGITIMATE
CHILD WHO IS ACKNOWLEDGE BY HIS FATHER, BY A WRITING SIGNED IN THE
PRESENCE OF A WITNESS, IS ENTITLED TO INHERIT HIS FATHER'S ESTATE AS
WELL AS HIS MOTHER'S (ALTHOUGH HE MAY NOT BE LEGITIMATE FOR ALL
PURPOSES), AND THAT IS SUFFICIENT FOR THE PURPOSES OF THE COPYRIGHT
ACT.  PP. 581-582. 

DESYLVA V. BALLENTINE, GUARDIAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE HARLAN, ANNOUNCED BY MR. JUSTICE
BURTON. 

THE PRESENT COPYRIGHT ACT (FN1) PROVIDES FOR A SECOND 28-YEAR
COPYRIGHT AFTER THE EXPIRATION OF THE ORIGINAL 28-YEAR TERM, IF
APPLICATION FOR RENEWAL IS MADE WITHIN ONE YEAR BEFORE THE EXPIRATION
OF THE ORIGINAL TERM.  THIS RIGHT TO RENEW THE COPYRIGHT APPEARS IN
SEC. 24 OF THE ACT: 

"AND PROVIDED FURTHER, THAT IN THE CASE OF ANY OTHER COPYRIGHTED
WORK,  ...  THE AUTHOR OF SUCH WORK, IF STILL LIVING, OR THE WIDOW,
WIDOWER, OR CHILDREN OF THE AUTHOR, IF THE AUTHOR BE NOT LIVING, OR IF
SUCH AUTHOR, WIDOW, WIDOWER, OR CHILDREN BE NOT LIVING, THEN THE
AUTHOR'S EXECUTORS, OR IN THE ABSENCE OF A WILL, HIS NEXT OF KIN SHALL
BE ENTITLED TO A RENEWAL AND EXTENSION OF THE COPYRIGHT IN SUCH WORK
FOR A FURTHER TERM OF TWENTY-EIGHT YEARS WHEN APPLICATION FOR SUCH
RENEWAL AND EXTENSION SHALL HAVE BEEN MADE TO THE COPYRIGHT OFFICE AND
DULY REGISTERED THEREIN WITHIN ONE YEAR PRIOR TO THE EXPIRATION OF THE
ORIGINAL TERM OF COPYRIGHT  ...  ." 

IN THIS CASE, AN AUTHOR WHO SECURED ORIGINAL COPYRIGHTS ON NUMEROUS
MUSICAL COMPOSITIONS DIED BEFORE THE TIME TO APPLY FOR RENEWALS AROSE. 
HE WAS SURVIVED BY HIS WIDOW AND ONE ILLEGITIMATE CHILD, WHO ARE BOTH
STILL LIVING.  THE QUESTION THIS CASE PRESENTS IS WHETHER THAT CHILD IS
ENTITLED TO SHARE IN THE COPYRIGHTS WHICH COME UP FOR RENEWAL DURING
THE WIDOW'S LIFETIME. 

RESPONDENT, THE CHILD'S MOTHER, BROUGHT THIS ACTION ON THE CHILD'S
BEHALF AGAINST THE WIDOW, WHO IS THE PETITIONER HERE, SEEKING A
DECLARATORY JUDGMENT THAT THE CHILD HAS AN INTEREST IN THE COPYRIGHTS
ALREADY RENEWED BY THE WIDOW AND THOSE THAT WILL BECOME RENEWABLE
DURING HER LIFETIME, AND FOR AN ACCOUNTNG OF PROFITS FROM SUCH
COPYRIGHTS AS HAVE BEEN ALREADY RENEWED.  THE DISTRICT COURT, HOLDING
THAT THE CHILD WAS WITHIN THE MEANING OF THE TERM "CHILDREN" AS USED IN
THE STATUTE BUT THAT THE RENEWAL RIGHTS BELONGED EXCLUSIVELY TO THE
WIDOW, GAVE JUDGMENT FOR THE WIDOW.  AGREEING WITH THE DISTRICT COURT
ON THE FIRST POINT, THE COURT OF APPEALS REVERSED, HOLDING THAT ON THE
AUTHOR'S DEATH BOTH WIDOW AND CHILD SHARED IN THE RENEWAL COPYRIGHTS. 
226 F.2D 623.  BECAUSE OF THE GREAT IMPORTANCE OF THESE QUESTIONS IN
THE ADMINISTRATION OF THE COPYRIGHT ACT, WE GRANTED CERTIORARI, 350
U.S. 931. 

THE CONTROVERSY CENTERS AROUND THE WORDS "OR THE WIDOW, WIDOWER, OR
CHILDREN OF THE AUTHOR, IF THE AUTHOR BE NOT LIVING."  TWO QUESTION ARE
INVOLVED:  (1) DO THE WIDOW AND CHILDREN TAKE AS A CLASS, OR IN ORDER
OF ENUMERATION, AND (2) IF THEY TAKE AS A CLASS, DOES "CHILDREN"
INCLUDE AN ILLEGITIMATE CHILD.  STRANGELY ENOUGH, THESE QUESTIONS HAVE
NEVER BEFORE BEEN DECIDED, ALTHOUGH THE STATUTORY PROVISIONS INVOLVED
HAVE BEEN PART OF THE ACT IN THEIR PRESENT FORM SINCE 1870. 

                                         I. 

THE WIDOW FIRST CONTENDS THAT, AFTER THE DEATH OF THE AUTHOR, SHE
ALONE IS ENTITLED TO RENEW COPYRIGHTS DURING HER LIFETIME, EXCLUSIVE OF
ANY INTEREST IN "CHILDREN" OF THE AUTHOR.  THAT IS, SHE INTERPRETS THE
CLAUSE AS PROVIDING FOR THE PASSING OF THE RENEWAL RIGHTS, ON THE DEATH
OF THE AUTHOR, FIRST TO THE WIDOW, AND THEN ONLY AFTER HER DEATH TO THE
"CHILDREN" OF THE AUTHOR.  IF THE WORD "OR" WHICH FOLLOWS "WIDOWER" IS
TO BE READ IN ITS NORMAL DISJUNCTIVE SENSE, THIS IS NOT AN UNREASONABLE
INTERPRETATION OF THE STATUTE, WHICH MIGHT THEN WELL BE READ TO MEAN
THAT "CHILDREN" ARE TO RENEW ONLY IF THERE IS NO "WIDOW" OR "WIDOWER." 
THE STATUTE IS HARDLY UNAMBIGUOUS, HOWEVER, AND PRESENTS PROBLEMS OF
INTERPRETATION NOT SOLVED BY LITERAL APPLICATION OF WORDS AS THEY ARE
"NORMALLY" USED.  THE STATUTE MUST BE READ AS A WHOLE, AND PUTTING EACH
WORD IN ITS PROPER CONTEXT WE ARE UNABLE TO SAY, AS THE WIDOW CONTENDS
WE SHOULD, THAT THE CLEAR PURPORT OF THE CLAUSE IN QUESTION IS THE SAME
AS IF IT READ "OR THE WIDOW, OR WIDOWER, IF THE AUTHOR BE NOT LIVING,
OR THE CHILDREN OF THE AUTHOR, IF THE AUTHOR, AND WIDOW OR WIDOWER, BE
NOT LIVING." 

WE START WITH THE PROPOSITION THAT THE WORD "OR" IS OFTEN USED AS A
CARELESS SUBSTITUTE FOR THE WORD "AND"; THAT IS, IT IS OFTEN USED IN
PHRASES WHERE "AND" WOULD EXPRESS THE THOUGHT WITH GREATER CLARITY. 
THAT TROUBLE WITH THE WORD HAS BEEN WITH US FOR A LONG TIME:  SEE,
E.G., UNITED STATES V. FISK, 3 WALL.  445.  IN THIS INSTANCE, WE NEED
LOOK NO FURTHER THAN THE VERY NEXT CLAUSE IN THIS SAME SECTION OF THE
COPYRIGHT ACT FOR AN EXAMPLE OF THIS CARELESS USAGE:  "  ...  OR IF
SUCH AUTHOR, WIDOW, WIDOWER OR CHILDREN BE NOT LIVING, THEN THE
AUTHOR'S EXECUTORS  ...  ."  IF THE ITALICIZED "OR" IN THAT CLAUSE IS
READ DISJUNCTIVELY, THEN THE AUTHOR'S EXECUTORS WOULD BE ENTITLED TO
RENEW THE COPYRIGHT IF ANY ONE OF THE PERSONS NAMED "BE NOT LIVING." 
IT IS CLEAR, HOWEVER, THAT THE EXECUTORS DO NOT SUCCEED TO THE RENEWAL
INTEREST UNLESS ALL OF THE NAMED PERSONS ARE DEAD, SINCE FROM THE
PRECEDING CLAUSE IT IS AT LEAST MADE EXPLICIT THAT THE "WIDOW, WIDOWER,
OR CHILDREN OF THE AUTHOR" ALL COME BEFORE THE EXECUTORS, AFTER THE
AUTHOR'S DEATH.  THE CLAUSE WOULD BE MORE ACCURATE, THEREFORE, WERE IT
TO READ "AUTHOR, WIDOW OR WIDOWER, AND CHILDREN."  IT IS ARGUED WITH
SOME FORCE, THEN, THAT IF IN THE SUCCEEDING CLAUSE THE "OR" IS TO BE
READ AS MEANING "AND" IN THE SAME WORD GROUPING AS IS INVOLVED IN THE
CLAUSE IN QUESTION, IT SHOULD BE READ THAT WAY IN THIS CLAUSE AS WELL. 
IF THIS IS DONE, IT IS THEN AN EASY STEP TO READ "WIDOW" AND "CHILDREN"
AS SUCCEEDING TO THE RENEWAL INTEREST AS A CLASS, AS THE COURT OF
APPEALS HELD THEY DID. 

THIS COURT HAS ALREADY TRACED THE DEVELOPMENT OF THE RENEWAL TERM IN
THE SEVERAL COPYRIGHT STATUTES ENACTED IN THIS COUNTRY.  SEE FRED
FISHER MUSIC CO. V. M. WITMARK & SONS, 318 U.S. 643, WHERE IT WAS HELD
THAT THE AUTHOR, DURING HIS LIFETIME, COULD MAKE A BINDING ASSIGNMENT
OF THE EXPECTANCY IN HIS FUTURE RIGHTS OF RENEWAL.  THE FIRST FEDERAL
STATUTE, THE ACT OF MAY 31, 1790, 1 STAT. 124, DID NOT ALLOW RENEWAL BY
ANYONE EXCEPT THE AUTHOR.  IN 1831, HOWEVER, A NEW ACT WAS PASSED,
WHICH FOR THE FIRST TIME GAVE TO THE AUTHOR'S FAMILY THE RIGHT TO RENEW
AFTER HIS DEATH.  ACT OF FEBRUARY 3, 1831, 4 STAT. 436.  SECTION 2 OF
THAT ACT PROVIDED: 

"THAT IF, AT THE EXPIRATION OF THE AFORESAID TERM OF YEARS, SUCH
AUTHOR  ...  BE STILL LIVING, AND A CITIZEN  ...  OF THE UNITED STATES,
OR RESIDENT THEREIN, OR BEING DEAD, SHALL HAVE LEFT A WIDOW, OR CHILD,
OR CHILDREN, EITHER OR ALL THEN LIVING, THE SAME EXCLUSIVE RIGHT SHALL
BE CONTINUED TO SUCH AUTHOR  ...  , OR, IF DEAD, THEN TO SUCH WIDOW AND
CHILD, OR CHILDREN, FOR THE FURTHER TERM OF FOURTEEN YEARS  ...  ." 

IT IS SIGNIFICANT THAT THIS STATUTE, WHICH INSTITUTED THE PRESENT
SCHEME OF ALLOWING A COPYRIGHT TO BE RENEWED AFTER THE AUTHOR'S DEATH,
PROVIDED FOR THE RENEWAL INTEREST IN THE "WIDOW AND CHILD, OR
CHILDREN," RATHER THAN IN THE WIDOW OR CHILDREN SEPARATELY.  PETITIONER
CONCEDES THAT UNDER THIS STATUTE THE WIDOW AND CHILDREN TOOK AS A
CLASS.  THIS STATUTE MARKED A MAJOR DEVELOPMENT IN THIS PHASE OF
COPYRIGHT LEGISLATION AND CREATED A SYSTEM WHICH, IN ITS BASIC FORM,
HAS BEEN CONTINUED EVEN TO THE PRESENT STATUTE. 

THE LANGUAGE OF SEC. 2 OF THE 1831 ACT, MADE ONE IMPORTANT CHANGE IN
THE LANGUAGE OF THE RENEWAL SECTION: THE RIGHT OF RENEWAL WAS GIVEN TO
THE AUTHOR'S WIDOW OR CHILDREN, RATHER THAN TO THE WIDOW AND CHILDREN. 
THE SECTION READ AS FOLLOWS: 

"THAT THE AUTHOR,  ...  IF HE BE STILL LIVING AND A CITIZEN OF THE
UNITED STATES OR RESIDENT THEREIN, OR HIS WIDOW OR CHILDREN, IF HE BE
DEAD, SHALL HAVE THE SAME EXCLUSIVE RIGHT CONTINUED FOR THE FURTHER
TERM OF FOURTEEN YEARS  ...  ." 

THIS SECTION BECAME SEC. 4954 OF THE REVISED STATUTES, AND WAS
AMENDED IN 1891, 26 STAT.  1107, BY DELETING THE REQUIREMENT THAT THE
AUTHOR BE A CITIZEN OR RESIDENT OF THE UNITED STATES.  THE SECTION WAS
OTHERWISE LEFT INTACT.  THE PRESENT RENEWAL PROVISIONS APPEARED FIRST
AS SEC. 23 OF THE COPYRIGHT ACT OF MARCH 4, 1909, 35 STAT. 1080, AND
WAS CONTINUED WITHOUT CHANGE IN 17 U.S.C. SEC. 24. 

KNOWING, AS WE DO, THAT "OR" CAN BE AMBIGUOUS WHEN USED IN SUCH A
CONTEXT AS THIS, IT IS DIFFICULT TO SAY THAT THE CHANGE MADE IN THE
1870 COPYRIGHT ACT HAD THE EFFECT OF CHANGING, AS PETITIONER CONTENDS
IT DID, THE CHILDREN'S INTEREST FROM AN INTEREST SHARED WITH THE WIDOW
TO ONE WHICH BECAME EFFECTIVE ONLY AFTER HER DEATH.  THERE IS NO
LEGISLATIVE HISTORY, EITHER WHEN THE 1870 ACT WAS PASSED OR IN THE
SUBSEQUENT SESSIONS OF CONGRESS, TO INDICATE THAT CONGRESS IN FACT
INTENDED TO CHANGE IN THIS RESPECT THE EXISTING SCHEME OF DISTRIBUTION
OF THE RENEWAL RIGHTS.  RATHER, WHAT SCANT MATERIAL THERE IS INDICATES
THAT NO SUBSTANTIAL CHANGES IN THE ACT WERE INTENDED.  (FN2)  IT WOULD
NOT SEEM UNLIKELY THAT THE FRAMERS OF THE 1870 STATUTE, INTERESTED IN
COMPRESSING THE SOMEWHAT CUMBERSOME PHRASING OF THE PRIOR COPYRIGHT
ACT, SIMPLY DELETED THE WORDS "AND CHILD" WITH THE THOUGHT THAT THE
REMAINING PHRASE "OR CHILDREN" EXPRESSED PRECISELY THE SAME RESULT,
LEAVING UNAFFECTED THE RIGHTS OF THE AUTHOR'S CHILDREN WHICH HAD BEEN
THE SAME FOR ALMOST FORTY YEARS. 

WE THEN COME TO THE 1909 COPYRIGHT ACT.  BY SEC. 23 OF THAT ACT, NOW
17 U.S.C. SEC. 24, THERE WERE ADDED TO THOSE ENTITLED TO RENEWAL RIGHTS
AFTER THE AUTHOR'S DEATH - THE WIDOW OR CHILDREN - THE AUTHOR'S
EXECUTORS, OR, IN THE ABSENCE OF A WILL, HIS NEXT OF KIN.  EACH OF
THESE NAMED CLASSES IS SEPARATED IN THE STATUTE BY A CONDITION
PRECEDENT TO THE PASSING OF THE RENEWAL RIGHTS, NAMELY, THAT THE
PERSONS NAMED IN THE PRECEDING CLASS BE DECEASED.  AS ALREADY NOTED, IT
IS AT LEAST CLEAR THAT, IF THE AUTHOR AND HIS WIDOW HAVE BOTH DIED,
SURVIVED BY A CHILD, THAT CHILD IS ENTITLED TO RENEW COPYRIGHTS
MATURING DURING HIS LIFETIME.  BUT IF THIS INTEREST WERE TO TAKE EFFECT
ONLY AFTER THE DEATH OF THE WIDOW, IT MIGHT BE EXPECTED THAT THE
DRAFTERS OF THE ACT WOULD HAVE SEPARATED "WIDOW OR WIDOWER" FROM
"CHILDREN" WITH THE SAME CONDITION PRECEDENT USED IN DEFINING THE
SUCCESSION OF THE OTHER CLASSES TO THE RENEWAL RIGHTS, SINCE IT WOULD
IN EFFECT BE PLACING THE CHILDREN IN A CLASS LOWER THAN THAT OCCUPIED
BY THE WIDOW OR WIDOWER.  GRANTING THAT THE ABSENCE OF THIS STRUCTURE
MIGHT SIMPLY HAVE BEEN DUE TO CARELESSNESS IN ADDING THE NEW CLASS TO
THE PRIOR RENEWAL SECTION, WE THINK IT MAY NEVERTHELESS BE TAKEN AS
SOME INDICATION THAT THE WIDOW AND CHILDREN ARE TO TAKE THE RIGHT TO
RENEW AT THE SAME TIME. 

THE SOLICITOR GENERAL HAS FILED A HELPFUL BRIEF ON BEHALF OF THE
REGISTER OF COPYRIGHTS, AS AMICUS CURIAE, IN WHICH THE ADMINISTRATIVE
PRACTICE OF THE COPYRIGHT OFFICE IS DISCUSSED.  IT APPEARS THAT THE
REGULATIONS ISSUED UNDER THE 1909 ACT, IN FORCE UNTIL 1948 (WHEN NEW
REGULATIONS, NOT TOUCHING ON THIS POINT, WERE ISSUED), ALLOWED THE
CHILDREN OF THE AUTHOR TO APPLY FOR COPYRIGHT RENEWALS AFTER THE
AUTHOR'S DEATH ALONG WITH THE WIDOW OR WIDOWER - THAT IS, THE CHILDREN
WERE NOT TREATED AS BEING ENTITLED TO RENEWAL ONLY AFTER THE DEATH OF
THE WIDOW OR WIDOWER.  (FN3)  THE PRACTICE OF THE COPYRIGHT OFFICE HAS
BEEN TO REGISTER RENEWAL CLAIMS BY CHILDREN DURING THE LIFETIME OF AN
AUTHOR'S WIDOW OR WIDOWER, ALTHOUGH THIS PRACTICE, IT IS FRANKLY
ADMITTED, IS MORE THE RESULT OF A DECISION THAT THERE IS SUBSTANTIAL
DOUBT OVER THE QUESTION, RATHER THAN THE RESULT OF A CONFIDENT
INTERPRETATION OF THE STATUTE AS TREATING WIDOWS, WIDOWERS, AND
CHILDREN AS MEMBERS OF ONE CLASS.  ALTHOUGH WE WOULD ORDINARILY GIVE
WEIGHT TO THE INTERPRETATION OF AN AMBIGUOUS STATUTE BY THE AGENCY
CHARGED WITH ITS ADMINISTRATION, CF. MAZER V. STEIN, 347 U.S. 201, 211
213, WE THINK THE COPYRIGHT OFFICE'S EXPLANATION OF ITS PRACTICE
DEPRIVES THE PRACTICE OF ANY FORCE AS AN INTERPRETATION OF THE STATUTE,
AND WE THEREFORE DO NOT RELY ON IT IN THIS INSTANCE. 

PETITIONER AND SEVERAL OF THE ASSOCIATIONS WHICH HAVE FILED AMICUS
BRIEFS POINT OUT THAT THE "UNIVERSAL" INTERPRETATION OF SEC. 24 HAS
BEEN THAT CHILDREN ARE ENTITLED TO RENEWAL ONLY AFTER THE DEATH OF THE
WIDOW OR WIDOWER.  IN LIGHT OF THE COPYRIGHT OFFICE PRACTICE ALONE,
THAT IS OBVIOUSLY AN OVERSTATEMENT.  NEVERTHELESS, HAD THERE BEEN A
LONG-STANDING CONSISTENT ATTITUDE BY THE SPECIALISTS IN THIS FIELD OF
LAW, AND A MORE ADEQUATE BASIS FOR IT THAN EXISTS HERE, WE MIGHT
HESITATE TO OVERTURN WHAT HAD COME TO BE A GENERALLY ACCEPTED VIEW OF A
STATUTE HAVING SUCH IMPORTANT CONSEQUENCES.  BUT WE CANNOT ESCAPE THE
CONCLUSION THAT, IN THIS INSTANCE, ANY SUCH RELIANCE ON THAT
INTERPRETATION OF THE ACT WAS MISPLACED:  THE STATUTE IS FAR FROM
CLEAR, THE COPYRIGHT OFFICE HAS RECOGNIZED ITS AMBIGUITY, RENEWAL
APPLICATIONS HAVE FOR MANY YEARS BEEN FILED BY CHILDREN BEFORE THE
DEATH OF THE WIDOW OR WIDOWER, AND MORE THAN ONE QUALIFIED COMMENTATOR
HAS EITHER EXPRESSED DOUBT ON THE QUESTION OR HAS CONCLUDED THAT THE
WIDOW OR WIDOWER AND CHILDREN TAKE AS A CLASS.  (FN4)    NOR IS IT
POSSIBLE FOR US TO SAY, AS PETITIONER SUGGESTS, THAT THE ONLY WAY TO
SATISFY THE CONGRESSIONAL PURPOSE IS TO HOLD THAT, DURING HER LIFETIME,
THE WIDOW HAS EXCLUSIVE RENEWAL RIGHTS.  PETITIONER ARGUES THAT THE
STATUTE, CONTEMPLATING THE NORMAL SITUATION OF A WIDOW TAKING CARE OF
HER CHILDREN, GIVES THE WIDOW EXCLUSIVE CONTROL OF THE COPYRIGHT ON THE
AUTHOR'S DEATH, SINCE SHE IS PRESUMABLY MORE CAPABLE OF DEALING WITH IT
AND WILL MORE LIKELY BE IN NEED OF THE COPYRIGHT INCOME.  THIS BRANCH
OF THE ARGUMENT, HOWEVER, BECOMES VERY MUCH DILUTED WHEN IT IS OBSERVED
THAT, IF THE DECEASED AUTHOR BE A WOMAN, THE STATUTE DISPOSES OF THE
RENEWAL RIGHTS IN THE SAME MANNER AS IF THE AUTHOR WERE A MALE.  IT IS
FURTHER ARGUED THAT SINCE THE VALUE OF THE COPYRIGHT DEPENDS TO AN
APPRECIABLE EXTENT ON THE ABILITY TO CONVEY CLEAR PUBLICATION RIGHTS,
THE STATUTE SHOULD NOT BE CONSTRUED TO DIMINISH THE VALUE OF THE
COPYRIGHT BY SCATTERING ITS OWNERSHIP, WHICH MIGHT MAKE IT DIFFICULT TO
TRANSFER CLEAR TITLE.  ONE DIFFICULTY WITH THIS ARGUMENT IS THAT IT
IGNORES THE 1831 STATUTE, WHICH, AS PETITIONER RECOGNIZES, DIVIDED THE
OWNERSHIP OF THE RENEWAL RIGHTS BETWEEN THE SURVIVING SPOUSE OF THE
AUTHOR AND HIS CHILDREN.  WHAT WE ARE ASKED TO DO IS TO AVOID, ON
POLICY GROUNDS, AN INTERPRETATION OF THE SUCCESSOR STATUTE WHICH
EMBODIES THE POLICY OF THE EARLIER ACT, A POLICY WHICH CONGRESS SAW FIT
TO EFFECTUATE AT LEAST UNTIL 1870, AND WHICH, IF CHANGED THEN, WAS
CHANGED WITHOUT ANY DISCERNIBLE DISPLAY OF DISSATISFACTION WITH THAT
POLICY.  THIS IS NOT THE TYPE OF CASE WHERE WE CAN USE, AS A GUIDE TO
STATUTORY INTERPRETATION, AN UNWILLINGNESS TO ATTRIBUTE TO CONGRESS
RESULTS WHICH ON THEIR FACE ARE HARSH, OR PRESENT CONSTITUTIONAL
DIFFICULTIES, OR WHICH ARE SO EXTRAORDINARY THAT CLEAR, UNAMBIGUOUS
WORDING IS REQUIRED.  CF. UNITED STATES V. MINKER, 350 U.S. 179.  IN
VIEW OF THIS EXPLICIT PRIOR LEGISLATION, THIS COURT SHOULD NOT
TRANSFUSE THE SUCCESSOR STATUTE WITH A GLOSS OF ITS OWN CHOOSING,
ESPECIALLY WHERE THE CHOICE BETWEEN THE ALTERNATIVE POLICIES IS AS
CLOSE AS THIS ONE.  (FN5) 

WHILE THE MATTER IS FAR FROM CLEAR, WE THINK, ON BALANCE, THE MORE
LIKELY MEANING OF THE STATUTE TO BE THAT ADOPTED BY THE COURT OF
APPEALS, AND WE HOLD THAT, ON THE DEATH OF THE AUTHOR, THE WIDOW AND
CHILDREN OF THE AUTHOR SUCCEED TO THE RIGHT OF RENEWAL AS A CLASS, AND
ARE EACH ENTITLED TO SHARE IN THE RENEWAL TERM OF THE COPYRIGHT. 

                           II. 

WE COME, THEN, TO THE QUESTION OF WHETHER AN ILLEGITIMATE CHILD IS
INCLUDED WITHIN THE TERM "CHILDREN" AS USED IN SEC. 24.  THE SCOPE OF A
FEDERAL RIGHT IS, OF COURSE, A FEDERAL QUESTION, BUT THAT DOES NOT MEAN
THAT ITS CONTENT IS NOT TO BE DETERMINED BY STATE, RATHER THAN FEDERAL
LAW.  CF. RECONSTRUCTION FINANCE CORP. V. BEAVER COUNTY, 328 U.S. 204;
BOARD OF COUNTY COMMISSIONERS V. UNITED STATES, 308 U.S. 343, 351-352. 
THIS IS ESPECIALLY TRUE WHERE A STATUTE DEALS WITH A FAMILIAL
RELATIONSHIP; THERE IS NO FEDERAL LAW OF DOMESTIC RELATIONS, WHICH IS
PRIMARILY A MATTER OF STATE CONCERN. 

IF WE LOOK AT THE OTHER PERSONS WHO, UNDER THIS SECTION OF THE
COPYRIGHT ACT, ARE ENTITLED TO RENEW THE COPYRIGHT AFTER THE AUTHOR'S
DEATH, IT IS APPARENT THAT THIS IS THE GENERAL SCHEME OF THE STATUTE. 
TO DECIDE WHO IS THE WIDOW OR WIDOWER OF A DECEASED AUTHOR, OR WHO ARE
HIS EXECUTORS OR NEXT OF KIN, REQUIRES A REFERENCE TO THE LAW OF THE
STATE WHICH CREATED THOSE LEGAL RELATIONSHIPS.  THE WORD "CHILDREN,"
ALTHOUGH IT TO SOME EXTENT DESCRIBES A PURELY PHYSICAL RELATIONSHIP,
ALSO DESCRIBES A LEGAL STATUS NOT UNLIKE THE OTHERS.  TO DETERMINE
WHETHER A CHILD HAS BEEN LEGALLY ADOPTED, FOR EXAMPLE, REQUIRES A
REFERENCE TO STATE LAW.  WE THINK IT PROPER, THEREFORE, TO DRAW ON THE
READY-MADE BODY OF STATE LAW TO DEFINE THE WORD "CHILDREN" IN SEC. 24. 
THIS DOES NOT MEAN THAT A STATE WOULD BE ENTITLED TO USE THE WORD
"CHILDREN" IN A WAY ENTIRELY STRANGE TO THOSE FAMILIAR WITH ITS
ORDINARY USAGE, BUT AT LEAST TO THE EXTENT THAT THERE ARE PERMISSIBLE
VARIATIONS IN THE ORDINARY CONCEPT OF "CHILDREN" WE DEEM STATE LAW
CONTROLLING.  CF. SEABOARD AIR LINE RAILWAY V. KENNEY, 240 U.S. 489. 
(FN6) 

THIS RAISES TWO QUESTIONS:  FIRST, TO WHAT STATE DO WE LOOK, AND
SECOND, GIVEN A PARTICULAR STATE, WHAT PART OF THAT STATE'S LAW DEFINES
THE RELATIONSHIP.  THE ANSWER TO THE FIRST QUESTION, IN THIS CASE, IS
NOT DIFFICULT, SINCE IT APPEARS FROM THE RECORD THAT THE ONLY STATE
CONCERNED IS CALIFORNIA, AND BOTH PARTIES HAVE ARGUED THE CASE ON THAT
ASSUMPTION.  THE SECOND QUESTION, HOWEVER, IS LESS CLEAR.  AN
ILLEGITIMATE CHILD WHO IS ACKNOWLEDGED BY HIS FATHER, BY A WRITING
SIGNED IN THE PRESENCE OF A WITNESS, IS ENTITLED UNDER SEC. 255 OF THE
CALIFORNIA PROBATE CODE (FN7) TO INHERIT HIS FATHER'S ESTATE AS WELL AS
HIS MOTHER'S.  THE DISTRICT COURT FOUND THAT THE CHILD HERE WAS WITHIN
THE TERMS OF THAT SECTION.  UNDER CALIFORNIA LAW THE CHILD IS NOT
LEGITIMATE FOR ALL PURPOSES, HOWEVER; COMPLIANCE WITH SEC. 230 OF THE
CIVIL CODE (FN8) IS NECESSARY FOR FULL LEGITIMATION, AND THERE ARE NO
ALLEGATIONS IN THE COMPLAINT SUFFICIENT TO BRING THE CHILD WITHIN THAT
SENSE THAT HE IS TO BE REGARDED AS A LEGITIMATE CHILD OF THE AUTHOR. 

CONSIDERING THE PURPOSES OF SEC. 24 OF THE COPYRIGHT ACT, WE THINK IT
SUFFICIENT THAT THE STATUS OF THE CHILD IS THAT DESCRIBED BY SEC. 255
OF THE CALIFORNIA PROBATE CODE.  THE EVIDENT PURPOSE OF SEC. 24 IS TO
PROVIDE FOR THE FAMILY OF THE AUTHOR AFTER HIS DEATH.  SINCE THE AUTHOR
CANNOT ASSIGN HIS FAMILY'S RENEWAL RIGHTS, SEC. 24 TAKES THE FORM OF A
COMPULSORY BEQUEST OF THE COPYRIGHT TO THE DESIGNATED PERSONS.  THIS IS
REALLY A QUESTION OF THE DESCENT OF PROPERTY, AND WE THINK THE
CONTROLLING QUESTION UNDER STATE LAW SHOULD BE WHETHER THE CHILD WOULD
BE AN HEIR OF THE AUTHOR.  IT IS CLEAR THAT UNDER SEC. 255 THE CHILD
IS, AT LEAST TO THAT EXTENT, INCLUDED WITHIN THE TERM "CHILDREN." 

FINALLY, THERE REMAINS THE QUESTION OF WHAT ARE THE RESPECTIVE RIGHTS
OF THE WIDOW AND CHILD IN THE COPYRIGHT RENEWALS, ONCE IT IS ACCEPTED
THAT THEY BOTH SUCCEED TO THE RENEWALS AS MEMBERS OF THE SAME CLASS. 
SINCE THE PARTIES HAVE NOT ARGUED THIS POINT, AND NEITHER COURT BELOW
HAS PASSED ON IT, WE THINK IT SHOULD NOT BE DECIDE AT THIS TIME. 

FOR THE FOREGOING REASONS, THE JUDGMENT OF THE COURT OF APPEALS IS
AFFIRMED. 

FN1  61 STAT. 652, 17 U.S.C. SEC. 1 ET SEQ. 

FN2 SEE CONG. GLOBE, 41ST CONG., 2D SESS. 2680, 2854 (1870). 

FN3  37 CFR, 1938, SEC. 201.24(A):  "APPLICATION FOR THE RENEWAL OF A
SUBSISTING COPYRIGHT MAY BE FILED WITHIN 1 YEAR PRIOR TO THE EXPIRATION
OF THE EXISTING TERM BY: 

"(1)  THE AUTHOR OF THE WORK IF STILL LIVING. 

"(2)  THE WIDOW, WIDOWER, OR CHILDREN OF THE AUTHOR IF THE AUTHOR IS
NOT LIVING. 

"(3)  THE AUTHOR'S EXECUTOR, IF SUCH AUTHOR, WIDOW, WIDOWER, OR
CHILDREN BE NOT LIVING. 

"(4)  IF THE AUTHOR, WIDOW, WIDOWER, AND CHILDREN ARE ALL DEAD, AND
THE AUTHOR LEFT NO WILL, THEN THE NEXT OF KIN." 

SEE SEC. 48, COPYRIGHT OFFICE BULLETIN NO. 15 (1913); SEC. 46,
COPYRIGHT OFFICE BULLETIN NO. 15 (1910). 

FN4  SEE, E.G., CHAFEE, REFLECTIONS ON THE LAW OF COPYRIGHT, 45 COL.
L. REV. 503, 527; KUPFERMAN, RENEWAL OF COPYRIGHT - SECTION 23 OF THE
COPYRIGHT ACT OF 1909, 44 COL. L. REV.  712, 717; TANNENBAUM, PRACTICAL
PROBLEMS IN COPYRIGHT, 7 COPYRIGHT PROBLEMS ANALYZED (CCH) 7, 12
(1952).  BUT SEE, E.G., NICHOLSON, A MANUAL OF COPYRIGHT PRACTICE, 195,
196; DE WOLF, AN OUTLINE OF COPYRIGHT LAW, 66. 

FN5  PETITIONER ALSO ARGUES THAT SINCE THE STATUTE DOES NOT
SPECIFICALLY PROVIDE FOR AN ALLOCATION, AS BETWEEN THE WIDOW OR WIDOWER
AND CHILDREN, OF THEIR RESPECTIVE INTERESTS IN THE RENEWAL COPYRIGHTS,
IT SHOULD NOT BE READ AS PROVIDING FOR THEIR SUCCEEDING TO THE RENEWAL
RIGHTS AS A CLASS.  BUT NEITHER DID THE 1831 ACT PROVIDE FOR A DIVISION
OF THE COPYRIGHT BETWEEN WIDOW AND CHILD OR CHILDREN; NOR DOES THE
PRESENT ACT ALLOCATE THE RENEWAL RIGHTS AS BETWEEN THOSE INCLUDED IN
THE TERM "NEXT OF KIN."  THE ABSENCE OF SUCH A PROVISION, THEREFORE, IS
NOT PERSUASIVE AS AN AID TO INTERPRETATION OF THE STATUTE. 

FN6  PETITIONER RELIES ON MCCOOL V. SMITH, 1 BLACK 459, FOR THE
PROPOSITION THAT A GENERAL STATUTORY REFERENCE TO "CHILDREN" MEANS ONLY
LEGITIMATE CHILDREN.  THE ACTUAL DECISION IN THAT CASE, DECIDED IN
1862, CONCERNED ONLY THE INTERPRETATION OF A STATE STATUTE, AND WE DO
NOT CONSIDER IT CONTROLLING HERE.  CF. HUTCHINSON INVESTMENT CO. V.
CALDWELL, 152 U.S. 65, 70. 

FN7  "EVERY ILLEGITIMATE CHILD IS AN HEIR OF HIS MOTHER, AND ALSO OF
THE PERSON WHO, IN WRITING, SIGNED IN THE PRESENCE OF A COMPETENT
WITNESS, ACKNOWLEDGES HIMSELF TO BE THE FATHER, AND INHERITS HIS OR HER
ESTATE, IN WHOLE OR IN PART, AS THE CASE MAY BE, IN THE SAME MANNER AS
IF HE HAD BEEN BORN IN LAWFUL WEDLOCK; BUT HE DOES NOT REPRESENT HIS
FATHER BY INHERITING ANY PART OF THE ESTATE OF THE FATHER'S KINDRED,
EITHER LINEAL OR COLLATERAL, UNLESS, BEFORE HIS DEATH, HIS PARENTS
SHALL HAVE INTERMARRIED, AND HIS FATHER, AFTER SUCH MARRIAGE,
ACKNOWLEDGES HIM AS HIS CHILD, OR ADOPTS HIM INTO HIS FAMILY; IN WHICH
CASE SUCH CHILD IS DEEMED LEGITIMATE FOR ALL PURPOSES OF SUCCESSION. 
AN ILLEGITIMATE CHILD MAY REPRESENT HIS MOTHER AND MAY INHERIT ANY PART
OF THE ESTATE OF THE MOTHER'S KINDRED, EITHER LINEAL OR COLLATERAL." 

FN8  "THE FATHER OF AN ILLEGITIMATE CHILD, BY PUBLICLY ACKNOWLEDGING
IT AS HIS OWN, RECEIVING IT AS SUCH, WITH THE CONSENT OF HIS WIFE, IF
HE IS MARRIED, INTO HIS FAMILY, AND OTHERWISE TREATING IT AS IF IT WERE
A LEGITIMATE CHILD, THEREBY ADOPTS IT AS SUCH; AND SUCH CHILD IS
THEREUPON DEEMED FOR ALL PURPOSES LEGITIMATE FROM THE TIME OF ITS
BIRTH.  THE FOREGOING PROVISIONS OF THIS CHAPTER DO NOT APPLY TO SUCH
AN ADOPTION." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, CONCURRING. 
THE MEANING OF THE WORD "CHILDREN" AS USED IN SEC. 24 OF THE COPYRIGHT
ACT IS A FEDERAL QUESTION.  CONGRESS COULD OF COURSE GIVE THE WORD THE
MEANING IT HAS UNDER THE LAWS OF THE SEVERAL STATES.  SEE HUTCHINSON
INVESTMENT CO. V. CALDWELL, 152 U.S. 65, 68-69; POFF V. PENNSYLVANIA R.
CO., 327 U.S. 399, 401.  BUT I WOULD THINK THE STATUTORY POLICY OF
PROTECTING DEPENDENTS WOULD BE BETTER SERVED BY UNIFORMITY, RATHER THAN
BY THE DIVERSITY WHICH WOULD FLOW FROM INCORPORATING INTO THE ACT THE
LAWS OF FORTY-EIGHT STATES.  CF.  CLEARFIELD TRUST CO. V. UNITED
STATES, 318 U.S. 363, 367; NATIONAL METROPOLITAN BANK V.  UNITED
STATES, 323 U.S. 454, 456; HEISER V. WOODRUFF, 327 U.S. 726, 732;
UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, 307. 

AN ILLEGITIMATE CHILD WAS GIVEN THE BENEFITS OF THE FEDERAL DEATH ACT
BY MIDDLETON V. LUCKENBACH S.S. CO., 70 F.2D 326, 329-330, WHERE THE
COURT OF APPEALS FOR THE SECOND CIRCUIT SAID: 

"THERE IS NO RIGHT OF INHERITANCE INVOLVED HERE.  IT IS A STATUTE
THAT CONFERS RECOVERY UPON DEPENDENTS, NOT FOR THE BENEFIT OF AN
ESTATE, BUT FOR THOSE WHO BY OUR STANDARDS ARE LEGALLY OR MORALLY
ENTITLED TO SUPPORT.  HUMANE CONSIDERATIONS AND THE REALIZATION THAT
CHILDREN ARE SUCH NO MATTER WHAT THEIR ORIGIN ALONE MIGHT COMPEL US TO
THE CONSTRUCTION THAT, UNDER PRESENT DAY CONDITIONS, OUR SOCIAL
ATTITUDE WARRANTS A CONSTRUCTION DIFFERENT FROM THAT OF THE EARLY
ENGLISH VIEW.  THE PURPOSE AND OBJECT OF THE STATUTE IS TO CONTINUE THE
SUPPORT OF DEPENDENTS AFTER A CASUALTY.  TO HOLD THAT THESE CHILDREN OR
THE PARENTS DO NOT COME WITHIN THE TERMS OF THE ACT WOULD BE TO DEFEAT
THE PURPOSES OF THE ACT.  THE BENEFIT CONFERRED BEYOND BEING FOR SUCH
BENEFICIARIES IS FOR SOCIETY'S WELFARE IN MAKING PROVISION FOR THE
SUPPORT OF THOSE WHO MIGHT OTHERWISE BECOME DEPENDENT.  THE RULE THAT A
BASTARD IS NULLIUS FILIUS APPLIES ONLY IN CASES OF INHERITANCE.  EVEN
IN THAT SITUATION WE HAVE MADE VERY CONSIDERABLE ADVANCES TOWARD GIVING
ILLEGITIMATES THE RIGHT OF CAPACITY TO INHERIT BY ADMITTING THEM TO
POSSESS INHERITABLE BLOOD." 

I WOULD TAKE THE SAME APPROACH HERE AND, REGARDLESS OF STATE LAW,
HOLD THAT ILLEGITIMATE CHILDREN WERE "CHILDREN" WITHIN THE MEANING OF
SEC. 24 OF THE COPYRIGHT ACT, WHETHER OR NOT STATE LAW WOULD ALLOW THEM
DEPENDENCY BENEFITS. 

WITH THIS EXCEPTION, I JOIN IN THE OPINION OF THE COURT. 
..END :





















UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA
V. WISCONSIN EMPLOYMENT RELATIONS BOARD 351 U.S. 266 


NO. 530.  ARGUED APRIL 24-25, 1956.  - DECIDED JUNE 4, 1956.  - 269 WIS.
578, 70 N.W.2D 191, AFFIRMED. 


AN EMPLOYER WHICH WAS SUBJECT TO THE NATIONAL LABOR RELATIONS ACT
FILED A COMPLAINT WITH THE WISCONSIN EMPLOYMENT RELATIONS BOARD
CHARGING APPELLANT UNION AND OTHERS WITH COMMITTING UNFAIR LABOR
PRACTICES WITHIN THE MEANING OF THE WISCONSIN EMPLOYMENT PEACE ACT,
WHICH PRACTICES WERE ALSO UNFAIR LABOR PRACTICES UNDER THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED.  THE EMPLOYER ALLEGED THAT, DURING A
STRIKE, MEMBERS OF THE UNION HAD ENGAGED IN MASS PICKETING, THEREBY
OBSTRUCTING INGRESS TO AND EGRESS FROM THE EMPLOYER'S PLANT; INTERFERED
WITH THE FREE AND UNINTERRUPTED USE OF PUBLIC HIGHWAYS; PREVENTED
PERSONS WHO DESIRED TO BE EMPLOYED FROM ENTERING THE PLANT; COERCED
EMPLOYEES WHO DESIRED TO WORK, AND THREATENED THEM AND THEIR FAMILIES
WITH PHYSICAL INJURY.  THE STATE BOARD FOUND THE ALLEGATIONS TO BE TRUE
AND ISSUED AN ORDER DIRECTING THE UNION AND CERTAIN OF ITS MEMBERS TO
CEASE ALL SUCH ACTIVITIES.  THIS ORDER WAS ENFORCED BY A WISCONSIN
STATE COURT.  HELD:  THE ORDER OF THE STATE BOARD IS VALID AND THE
JUDGMENT OF THE STATE COURT ENFORCING IT IS AFFIRMED.  PP. 267-275. 

(A)  SECTION 8(B)(1) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
IS NOT THE EXCLUSIVE METHOD OF CONTROLLING VIOLENCE EVEN AGAINST
EMPLOYEES, MUCH LESS VIOLENCE INTERFERING WITH OTHERS APPROACHING AN
AREA WHERE A STRIKE IS IN PROGRESS; AND THE FEDERAL ACT DOES NOT SO
OCCUPY THE FIELD AS TO PREVENT A STATE FROM ENJOINING SUCH VIOLENCE. 
PP. 271-273. 

(B)  THE FACT THAT A UNION COMMITS A FEDERAL UNFAIR LABOR PRACTICE
WHILE ENGAGING IN VIOLENT CONDUCT DOES NOT PREVENT A STATE FROM TAKING
STEPS TO STOP THE VIOLENCE.  P. 274. 

(C) A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE STATE
ACTED UNDER A STATE LABOR-RELATIONS STATUTE, RATHER THAN UNDER A
GENERAL STATE LAW AGAINST VIOLENCE AND COERCION, NOR BY THE FACT THAT
THE STATE HAS CHOSEN TO ENTRUST ITS POWER TO A LABOR BOARD.  PP. 273
275. 

UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA
V. WISCONSIN EMPLOYMENT RELATIONS BOARD ET AL. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE, AS STATED IN THE BRIEF FOR THE UNITED AUTOMOBILE, AIRCRAFT
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, PRESENTS THE QUESTION
WHETHER OR NOT A STATE MAY ENJOIN THROUGH ITS LABOR STATUTE, THE
WISCONSIN EMPLOYMENT PEACE ACT, UNION CONDUCT OF A KIND WHICH MAY BE AN
UNFAIR LABOR PRACTICE UNDER THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED.  (FN1) 

APPELLANT CONCEDES THAT A STATE MAY PUNISH VIOLENCE ARISING IN LABOR
RELATION CONTROVERSIES UNDER ITS GENERALLY APPLICABLE CRIMINAL
STATUTES.  IT DOES NOT ADMIT OR DENY THE CHARGED VIOLENCE.  THE UNION
CONSIDERS THE COERCION IMMATERIAL IN THIS CASE.  ITS POSITION IS THAT A
STATE MAY NOT EXERCISE THIS POLICE POWER THROUGH AN AGENCY THAT IS
CONCERNED ONLY WITH LABOR RELATIONS.  THE ARGUMENT IS THAT A STATE
BOARD WILL USE THIS POWER TO STOP FORCE AND VIOLENCE IN ORDER TO
FURTHER STATE LABOR POLICY, THUS CREATING A CONFLICT WITH THE FEDERAL
POLICY AS DEVELOPED BY THE NATIONAL LABOR RELATIONS BOARD.  THE UNION
ARGUES THAT WISCONSIN HAS NO JURISDICTION TO ENJOIN THE ALLEGED CONDUCT
UNDER ITS LABOR ACT BECAUSE SUCH CONDUCT WOULD BE AN UNFAIR LABOR
PRACTICE UNDER THE NATIONAL LABOR RELATIONS ACT. 

THIS CONTROVERSY AROSE OUT OF THE FAILURE OF APPELLANT AND THE KOHLER
COMPANY TO REACH AN ACCORD CONCERNING A NEW COLLECTIVE-BARGAINING
AGREEMENT.  AS THE PARTIES WERE UNABLE TO AGREE, KOHLER'S PRODUCTION
WORKERS STRUCK AND PICKETED THE PREMISES OF THE COMPANY.  TEN DAYS
LATER KOHLER FILED A COMPLAINT WITH THE WISCONSIN EMPLOYMENT RELATIONS
BOARD CHARGING APPELLANT AND OTHERS WITH COMMITTING UNFAIR LABOR
PRACTICES WITHIN THE MEANING OF THE WISCONSIN EMPLOYMENT PEACE ACT. 
(FN2) IT WAS ALLEGED THAT APPELLANT'S MEMBERS HAD ENGAGED IN MASS
PICKETING, THEREBY OBSTRUCTING INGRESS TO AND EGRESS FROM THE KOHLER
PLANT; INTERFERED WITH THE FREE AND UNINTERRUPTED USE OF PUBLIC WAYS;
PREVENTED PERSONS DESIRING TO BE EMPLOYED BY KOHLER FROM ENTERING THE
PLANT; AND COERCED EMPLOYEES WHO DESIRED TO WORK, AND THREATENED THEM
AND THEIR FAMILIES WITH PHYSICAL INJURY.  THE STATE BOARD FOUND THE
ALLEGATIONS TO BE TRUE AND ISSUED AN ORDER THAT DIRECTED THE UNION AND
CERTAIN OF ITS MEMBERS TO CEASE ALL SUCH ACTIVITIES.  THE ORDER APPEARS
BELOW.  (FN3) WITHOUT CHANGE OF SUBSTANCE IT WAS ENFORCED BY A
WISCONSIN CIRCUIT COURT, AND THE STATE SUPREME COURT AFFIRMED THAT
JUDGMENT.  269 WIS. 578, 70 N.W.2D 191.  AS THE APPEAL RAISED AN
IMPORTANT QUESTION OF FEDERALISM, WE NOTED PROBABLE JURISDICTION.  350
U.S. 957.  (FN4) 

THE KOHLER COMPANY IS SUBJECT TO THE NATIONAL LABOR RELATIONS ACT. 
IT SEEMS AGREED, AND WE THINK CORRECTLY IN VIEW OF THE FINDINGS OF
FACT, THAT THE ALLEGED CONDUCT OF THE UNION IN COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS IS A VIOLATION OF SEC. 8(B)(1) OF THAT
ACT.  (FN5)  SINCE THERE IS POWER UNDER THE ACT TO PROTECT EMPLOYEES
AGAINST VIOLENCE FROM LABOR ORGANIZATIONS BY ASSURING THEIR RIGHT TO
REFRAIN FROM CONCERTED LABOR ACTIVITIES, THE NATIONAL LABOR BOARD MIGHT
HAVE ISSUED AN ORDER SIMILAR TO THAT OF THE STATE BOARD.  (FN6)  THE
PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, COVER THE
LABOR RELATIONS OF THE KOHLER COMPANY.  LABOR BOARD V. JONES & LAUGHLIN
STEEL CORP., 301 U.S. 1, 31.  THESE PROVISIONS MAY BE ASSUMED TO
INCLUDE THE COERCION NOT ONLY OF STRIKERS BUT ALSO OF OTHER PERSONS
SEEKING EMPLOYMENT WITH THE PLANT.  (FN7) 

BY VIRTUE OF THE COMMERCE CLAUSE, CONGRESS HAS POWER TO REGULATE ALL
LABOR CONTROVERSIES IN OR AFFECTING INTERSTATE COMMERCE, SUCH AS ARE
HERE INVOLVED.  IF THE CONGRESSIONAL ENACTMENT OCCUPIES THE FIELD, ITS
CONTROL BY THE SUPREMACY CLAUSE SUPERSEDES OR, IN THE CURRENT PHRASE,
PRE-EMPTS STATE POWER.  KELLY V. WASHINGTON, 302 U.S. 1, 9.  IN THE
1935 ACT, SEC. 10(A), THE BOARD WAS EMPOWERED TO PREVENT UNFAIR LABOR
PRACTICES.  BY SEC. 10(A) THIS POWER WAS MADE "EXCLUSIVE."  49 STAT.
449, 453, 29 U.S.C. SEC. 160.  IN THE TAFT-HARTLEY AMENDMENTS OF 1947,
THE WORD "EXCLUSIVE" WAS OMITTED BUT THE PHRASE "SHALL NOT BE AFFECTED
BY ONE OTHER MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN OR MAY BE
ESTABLISHED BY AGREEMENT, CODE, LAW, OR OTHERWISE," WAS RE-ENACTED
WITHOUT SIGNIFICANT CHANGE.  THE OMISSION WAS EXPLAINED IN THE
CONFERENCE REPORT.  (FN8) 

YET UNDER THE 1935 WAGNER ACT THIS COURT RULED THAT WISCONSIN, UNDER
ITS SAME LABOR PEACE ACT, COULD ENJOIN UNION CONDUCT OF THE KIND HERE
INVOLVED.  ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740.  AT
THAT TIME, HOWEVER, THE FEDERAL ACT MADE NO PROVISION FOR ENJOINING
UNION ACTIVITIES.  WITH THE PASSAGE OF THE TAFT-HARTLEY ACT IN 1947,
THE CONGRESS RECOGNIZED THAT LABOR UNIONS ALSO MIGHT COMMIT UNFAIR
LABOR PRACTICES TO THE DETRIMENT OF EMPLOYEES WHO WISH TO REFRAIN FROM
STRIKING.   SEE N. 5, SUPRA.  APPELLANT URGES THAT THIS AMENDMENT
ELIMINATED THE STATE'S POWER TO CONTROL THE ACTIVITIES NOW UNDER
CONSIDERATION THROUGH STATE LABOR STATUTES. 

IT SEEMS OBVIOUS THAT SEC. 8(B)(1) WAS NOT TO BE THE EXCLUSIVE METHOD
OF CONTROLLING VIOLENCE EVEN AGAINST EMPLOYEES, MUCH LESS VIOLENCE
INTERFERING WITH OTHERS APPROACHING AN AREA WHERE A STRIKE WAS IN
PROGRESS.  (FN9)  NO ONE SUGGESTS THAT SUCH VIOLENCE IS BEYOND STATE
CRIMINAL POWER.  THE ACT DOES NOT HAVE SUCH REGULATORY PERVASIVENESS. 
THE STATE INTEREST IN LAW AND ORDER PRECLUDES SUCH INTERPRETATION. 
SENATOR TAFT EXPLAINED THAT THE FEDERAL PROHIBITION AGAINST UNION
VIOLENCE WOULD ALLOW STATE ACTION.  (FN10) 

APPELLANT IS OF THE VIEW THAT SUCH REFERENCES WERE "TO THE GENERAL
STATE CRIMINAL LAW AGAINST VIOLENCE AND COERCION, NOT TO STATE LABOR
RELATIONS STATUTES."  BUT THIS CANNOT BE CORRECT SINCE ALLEN-BRADLEY
LOCAL V. WISCONSIN BOARD, THE LEADING CASE DEALING WITH VIOLENCE UNDER
THIS SAME WISCONSIN STATUTE, WAS WELL KNOWN TO CONGRESS.  (FN11)  THE
FACT THAT THE LABOR MANAGEMENT RELATIONS ACT COVERED UNION UNFAIR
PRACTICES FOR THE FIRST TIME DOES NOT MAKE THE ALLEN-BRADLEY CASE
OBSOLETE.   ORDERS WHICH ORIGINATE IN STATE BOARDS AND BECOME EFFECTIVE
THROUGH THE STATE JUDICIARY SHOULD GIVE MORE CAREFUL PROTECTION TO THE
RIGHTS OF LABOR THAN THE PURELY JUDICIAL ORDERS OF A COURT. 

THERE IS NO REASON TO RE-EXAMINE THE OPINIONS IN WHICH THIS COURT HAS
DEALT WITH PROBLEMS INVOLVING FEDERAL-STATE JURISDICTION OVER
INDUSTRIAL CONTROVERSIES.  THEY HAVE BEEN ADEQUATELY SUMMARIZED IN
WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, 474-477.  AS A GENERAL
MATTER WE HAVE HELD THAT A STATE MAY NOT, IN THE FURTHERANCE OF ITS
PUBLIC POLICY, ENJOIN CONDUCT "WHICH HAS BEEN MADE AN 'UNFAIR LABOR
PRACTICE' UNDER THE FEDERAL STATUTES."  ID., AT 475, AND CASES CITED. 
BUT OUR POST-TAFT-HARTLEY OPINIONS HAVE MADE IT CLEAR THAT THIS GENERAL
RULE DOES NOT TAKE FROM THE STATES POWER TO PREVENT MASS PICKETING,
VIOLENCE, AND OVERT THREATS OF VIOLENCE.  (FN12)  THE DOMINANT INTEREST
OF THE STATE IN PREVENTING VIOLENCE AND PROPERTY DAMAGE CANNOT BE
QUESTIONED.  IT IS A MATTER OF GENUINE LOCAL CONCERN.  NOR SHOULD THE
FACT THAT A UNION COMMITS A FEDERAL UNFAIR LABOR PRACTICE WHILE
ENGAGING IN VIOLENT CONDUCT PREVENT STATES FROM TAKING STEPS TO STOP
THE VIOLENCE.  THIS CONCLUSION HAS BEEN EXPLICIT IN THE OPINIONS CITED
IN NOTE 12. 

THE STATES ARE THE NATURAL GUARDIANS OF THE PUBLIC AGAINST VIOLENCE. 
IT IS THE LOCAL COMMUNITIES THAT SUFFER MOST FROM THE FEAR AND LOSS
OCCASIONED BY COERCION AND DESTRUCTION.  WE WOULD NOT INTERPRET AN ACT
OF CONGRESS TO LEAVE THEM POWERLESS TO AVERT SUCH EMERGENCIES WITHOUT
COMPELLING DIRECTIONS TO THAT EFFECT. 

WE HOLD THAT WISCONSIN MAY ENJOIN THE VIOLENT UNION CONDUCT HERE
INVOLVED.  THE FACT THAT WISCONSIN HAS CHOSEN TO ENTRUST ITS POWER TO A
LABOR BOARD IS OF NO CONCERN TO THIS COURT.  (FN13) AFFIRMED. 

FN1  THE QUESTION PRESENTED IS NARROWED BY APPELLANT IN ANOTHER
PARAGRAPH TO APPLY ONLY TO INSTANCES, AS HERE, WHERE THE NATIONAL BOARD
HAS ASSERTED JURISDICTION OVER CERTAIN OTHER LABOR PRACTICES ARISING
FROM THE SAME EMPLOYER-UNION RELATIONSHIP.  THESE PROCEEDINGS INCLUDE A
PLEA BY THE EMPLOYER THAT THE STATE-ENJOINED UNION CONDUCT CONSTITUTES
A DEFENSE TO A UNION CHARGE FILED WITH THE BOARD.  APPELLANT ALSO
ASSERTED THAT THE STATE SHOULD ACT ONLY AFTER THE BOARD HAS PASSED UPON
THE PENDING UNION COMPLAINT.  IN VIEW OF OUR DISPOSITION OF THIS
APPEAL, WE DO NOT CONSIDER THESE NARROWER ISSUES MATERIAL. 

FN2  WISCONSIN STATUTES, 1953, C. 111, P. 1903. 

SEC. 111.04, P. 1905: 

"111.04 RIGHTS OF EMPLOYES.  EMPLOYES SHALL HAVE THE RIGHT OF SELF
ORGANIZATION AND THE RIGHT TO FORM, JOIN OR ASSIST LABOR ORGANIZATIONS,
TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING,
AND TO ENGAGE IN LAWFUL, CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION; AND SUCH
EMPLOYES SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH
ACTIVITIES." 

SEC. 111.06(2), P. 1907: 

"(2)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYE
INDIVIDUALLY OR IN CONCERT WITH OTHERS: 

"(A)  TO COERCE OR INTIMIDATE AN EMPLOYE IN THE ENJOYMENT OF HIS
LEGAL RIGHTS, INCLUDING THOSE GUARANTEED IN SECTION 111.04, OR TO
INTIMIDATE HIS FAMILY, PICKET HIS DOMICILE, OR INJURE THE PERSON OR
PROPERTY OF SUCH EMPLOYE OR HIS FAMILY. 

     *      *         *         *         * 

"(F)  TO HINDER OR PREVENT, BY MASS PICKETING, THREATS, INTIMIDATION,
FORCE OR COERCION OF ANY KIND THE PURSUIT OF ANY LAWFUL WORK OR
EMPLOYMENT, OR TO OBSTRUCT OR INTERFERE WITH ENTRANCE TO OR EGRESS FROM
ANY PLACE OF EMPLOYMENT, OR TO OBSTRUCT OR INTERFERE WITH FREE AND
UNINTERRUPTED USE OF PUBLIC ROADS, STREETS, HIGHWAYS, RAILWAYS,
AIRPORTS, OR OTHER WAYS OF TRAVEL OR CONVEYANCE." 

SEC. 111.07, P. 1908: 

"111.07 PREVENTION OF UNFAIR LABOR PRACTICES.  (1)  ANY CONTROVERSY
CONCERNING UNFAIR LABOR PRACTICES MAY BE SUBMITTED TO THE BOARD IN THE
MANNER AND WITH THE EFFECT PROVIDED IN THIS SUBCHAPTER, BUT NOTHING
HEREIN SHALL PREVENT THE PURSUIT OF LEGAL OR EQUITABLE RELIEF IN COURTS
OF COMPETENT JURISDICTION." 

FN3  "IT IS ORDERED THAT THE RESPONDENT UNIONS, THEIR OFFICERS,
MEMBERS AND AGENTS IMMEDIATELY CEASE AND DESIST FROM: 

"1.  COERCING AND INTIMIDATING ANY PERSON DESIRING TO BE EMPLOYED BY
THE KOHLER COMPANY IN THE ENJOYMENT OF HIS LEGAL RIGHTS, INTIMIDATING
HIS FAMILY, PICKETING HIS DOMICILE, OR INJURING THE PERSON OR PROPERTY
OF SUCH PERSONS OR HIS EMPLOYE. 

"2.  HINDERING OR PREVENTING BY MASS PICKETING, THREATS,
INTIMIDATION, FORCE OR COERCION OF ANY KIND THE PURSUIT OF LAWFUL WORK
OR EMPLOYMENT BY ANY PERSON DESIROUS OF BEING EMPLOYED BY THE KOHLER
COMPANY. 

"3.  OBSTRUCTING OR INTERFERING IN ANY WAY WITH ENTRANCE TO AND
EGRESS FROM THE PREMISES OF THE KOHLER COMPANY. 

"4.  OBSTRUCTING OR INTERFERING WITH THE FREE AND UNINTERRUPTED USE
OF PUBLIC ROADS, STREETS, HIGHWAYS, RAILWAYS OR PRIVATE DRIVES LEADING
TO THE PREMISES OF THE KOHLER COMPANY. 

"IT IS FURTHER ORDERED THAT THE RESPONDENT UNIONS, THEIR OFFICERS,
MEMBERS AND AGENTS TAKE THE FOLLOWING AFFIRMATIVE ACTION: 

"1.  LIMIT THE NUMBER OF PICKETS AROUND THE KOHLER COMPANY PREMISES
TO A TOTAL OF NOT MORE THAN 200, WITH NOT MORE THAN 25 AT ANY ONE
ENTRANCE.  SUCH PICKETS ARE TO MARCH IN SINGLE FILE AND TO AT ALL TIMES
MAINTAIN A SPACE OF AT LEAST 20 FEET IN WIDTH AT EACH ENTRANCE TO THE
KOHLER COMPANY PREMISES OVER WHICH PICKETS WILL NOT PASS AND ON WHICH
PERSONS EITHER ON FOOT OR IN CONVEYANCE MAY FREELY ENTER OR LEAVE THE
PREMISES WITHOUT INTERFERENCE." 

FN4  THE LEGAL PROBLEMS HAVE RECEIVED CONSIDERABLE ATTENTION IN
RECENT YEARS.  A COLLECTION OF AVAILABLE ARTICLES APPEARS IN NOTE, 53
MICH. L. REV. 602.  SEE ALSO FURTHER COMMENTS ON FEDERALISM, 54 MICH.
L. REV. 540; ISAACSON, LABOR RELATIONS LAW:  FEDERAL VERSUS STATE
JURISDICTION, 42 A.B.A.J. 415. 

FN5  "SEC.  8  ...  . 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7 ...  ."  61 STAT. 136, 141, 29 U.S.C.
SEC. 158(B)(1). 

"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, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM
ANY OR ALL OF SUCH ACTIVITIES  ...  ."  61 STAT. 140, 29 U.S.C. SEC.
157 

FN6  CF. IN THE MATTER OF LOCAL #1150, UNITED ELECTRICAL, RADIO &
MACHINE WORKERS, 84 N.L.R.B. 972; IN THE MATTER OF PERRY NORVELL CO.,
80 N.L.R.B. 225; UNITED MINE WORKERS OF AMERICA, DISTRICT 2, 96
N.L.R.B. 1389. 

FN7  SEE PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 182,
FIRST.  CF. LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111, 120, I. 

FN8  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 52: 

"(1)  THE HOUSE BILL OMITTED FROM SECTION 10(A) OF THE EXISTING LAW
THE LANGUAGE PROVIDING THAT THE BOARD'S POWER TO DEAL WITH UNFAIR LABOR
PRACTICES SHOULD NOT BE AFFECTED BY OTHER MEANS OF ADJUSTMENT OR
PREVENTION, BUT IT RETAINED THE LANGUAGE OF THE PRESENT ACT WHICH MAKES
THE BOARD'S JURISDICTION EXCLUSIVE.  THE SENATE AMENDMENT, BECAUSE OF
ITS PROVISIONS AUTHORIZING TEMPORARY INJUNCTIONS ENJOINING ALLEGED
UNFAIR LABOR PRACTICES AND BECAUSE OF ITS PROVISIONS MAKING UNIONS
SUABLE, OMITTED THE LANGUAGE GIVING THE BOARD EXCLUSIVE JURISDICTION OF
UNFAIR LABOR PRACTICES, BUT RETAINED THAT WHICH PROVIDES THAT THE
BOARD'S POWER SHALL NOT BE AFFECTED BY OTHER MEANS OF ADJUSTMENT OR
PREVENTION.  THE CONFERENCE AGREEMENT ADOPTS THE PROVISIONS OF THE
SENATE AMENDMENT.  BY RETAINING THE LANGUAGE WHICH PROVIDES THE BOARD'S
POWERS UNDER SECTION 10 SHALL NOT BE AFFECTED BY OTHER MEANS OF
ADJUSTMENT, THE CONFERENCE AGREEMENT MAKES CLEAR THAT, WHEN TWO
REMEDIES EXIST, ONE BEFORE THE BOARD AND ONE BEFORE THE COURTS, THE
REMEDY BEFORE THE BOARD SHALL BE IN ADDITION TO, AND NOT IN LIEU OF,
OTHER REMEDIES." 

FN9  UNITED CONSTRUCTION WORKERS V. LABURNUM CONSTRUCTION CORP., 347
U.S. 656, 666-669, A STATE CASE THAT ALLOWED TORT RECOVERY, MAKES THIS
CLEAR. 

FN10  93 CONG. REC. 4437: 

"THE SENATOR FROM OREGON A WHILE AGO SAID THAT THE ENACTMENT OF THIS
PROPOSED LEGISLATION WILL RESULT IN DUPLICATION OF SOME OF THE STATE
LAWS.  IT WILL DUPLICATE SOME OF THE STATE LAWS ONLY TO THE EXTENT, AS
I SEE IT, THAT ACTUAL VIOLENCE IS INVOLVED IN THE THREAT OR IN THE
OPERATION. 

     *         *         *         *         * 

"MR. PRESIDENT, I MAY SAY FURTHER THAT ONE OF THE ARGUMENTS HAS
SUGGESTED THAT IN CASE THIS PROVISION COVERED VIOLENCE IT DUPLICATED
STATE LAW.  I WISH TO POINT OUT THAT THE PROVISIONS AGREED TO BY THE
COMMITTEE COVERING UNFAIR LABOR PRACTICES ON THE PART OF LABOR UNIONS
ALSO MIGHT DUPLICATE TO SOME EXTENT THAT STATE LAW.  SECONDARY
BOYCOTTS, JURISDICTIONAL STRIKES, AND SO FORTH, MAY INVOLVE SOME
VIOLATION OF STATE LAW RESPECTING VIOLENCE WHICH MAY BE CRIMINAL, AND
SO TO SOME EXTENT THE MEASURE MAY BE DUPLICATING THE REMEDY EXISTING
UNDER STATE LAW.  BUT THAT, IN MY OPINION, IS NO VALID ARGUMENT." 

SEE ALSO 93 CONG. REC. 4024; S. REP. NO. 105, 80TH CONG., 1ST SESS.
50. 

FN11  THERE IT WAS SAID: 

"THE ONLY EMPLOYEE OR UNION CONDUCT AND ACTIVITY FORBIDDEN BY THE
STATE BOARD IN THIS CASE WAS MASS PICKETING, THREATENING EMPLOYEES
DESIRING TO WORK WITH PHYSICAL INJURY OR PROPERTY DAMAGE, OBSTRUCTING
ENTRANCE TO AND EGRESS FROM THE COMPANY'S FACTORY, OBSTRUCTING THE
STREETS AND PUBLIC ROADS SURROUNDING THE FACTORY, AND PICKETING THE
HOMES OF EMPLOYEES.  SO FAR AS THE FOURTEEN INDIVIDUALS ARE CONCERNED,
THEIR STATUS AS EMPLOYEES OF THE COMPANY WAS NOT AFFECTED. 

"WE AGREE WITH THE STATEMENT OF THE UNITED STATES AS AMICUS CURIAE
THAT THE FEDERAL ACT WAS NOT DESIGNED TO PRECLUDE A STATE FROM ENACTING
LEGISLATION LIMITED TO THE PROHIBITION OR REGULATION OF THIS TYPE OF
EMPLOYEE OR UNION ACTIVITY.  THE COMMITTEE REPORTS ON THE FEDERAL ACT
PLAINLY INDICATE THAT IT IS NOT A 'MERE POLICE COURT MEASURE' AND THAT
AUTHORITY OF THE SEVERAL STATES MAY BE EXERTED TO CONTROL SUCH
CONDUCT.  FURTHERMORE, THIS COURT HAS LONG INSISTED THAT AN 'INTENTION
OF CONGRESS TO EXCLUDE STATES FROM EXERTING THEIR POLICE POWER MUST BE
CLEARLY MANIFESTED.'  ...  CONGRESS HAS NOT MADE SUCH EMPLOYEE AND
UNION CONDUCT AS IS INVOLVED IN THIS CASE SUBJECT TO REGULATION BY THE
FEDERAL BOARD."  315 U.S. 740, 748-749. 

FN12  SEE WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, 477, 482;
UNITED CONSTRUCTION WORKERS V. LABURNUM CONSTRUCTION CORP., 347 U.S.
656, 666-669; GARNER V. TEAMSTERS UNION, 346 U.S. 485, 488;
INTERNATIONAL UNION V. O'BRIEN, 339 U.S. 454, 459; INTERNATIONAL UNION
V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 336 U.S. 245, 253. 

FN13  CF. HUGHES V. SUPERIOR COURT, 339 U.S. 460, 467; INTERNATIONAL
BROTHERHOOD OF TEAMSTERS V. HANKE, 339 U.S. 470, 479. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THERE ARE INSTANCES WHERE WE HAVE SUSTAINED IDENTICAL REGULATIONS OF
THE SAME ACT BY BOTH A STATE AND THE FEDERAL GOVERNMENT.  CALIFORNIA V.
ZOOK, 336 U.S. 725, IS AN EXAMPLE.  BUT THE INSTANCES ARE FEW AND FAR
BETWEEN. 

OF COURSE, WHERE THE STATES AND THE FEDERAL GOVERNMENT REGULATE THE
SAME ACT, BUT EACH WITH A DIFFERENT SANCTION, BOTH OFTEN SURVIVE. 
UNITED WORKERS V. LABURNUM CORP., 347 U.S. 656, IS A RECENT EXAMPLE. 
WE THERE ALLOWED A COMMON-LAW TORT ACTION FOR DAMAGES TO BE ENFORCED IN
A STATE COURT FOR THE SAME ACTS THAT COULD HAVE BEEN THE BASIS FOR
ADMINISTRATIVE RELIEF UNDER THE FEDERAL ACT.  BUT THE PRESENT CASE IS
NOT THAT CASE.  HERE THE STATE HAS PRESCRIBED AN ADMINISTRATIVE REMEDY
THAT DUPLICATES THE ADMINISTRATIVE REMEDY PRESCRIBED BY CONGRESS.  EACH
REACHES THE SAME IDENTICAL CONDUCT.  WE DISALLOWED THAT DUPLICATION OF
REMEDY IN GARNER V. TEAMSTERS UNION, 346 U.S. 485.  IN THAT CASE WE
HELD THAT A STATE COURT COULD NOT ENJOIN ACTION WHICH WAS SUBJECT TO AN
UNFAIR LABOR PROCEEDING UNDER THE FEDERAL ACT.  AND SEE WEBER V.
ANHEUSER-BUSCH, INC., 348 U.S. 468.  TODAY WE DEPART FROM GARNER AND
ALLOW A STATE BOARD TO ENJOIN ACTION WHICH IS SUBJECT TO AN UNFAIR
LABOR PROCEEDING BEFORE THE FEDERAL BOARD.  WE SANCTION A PRECISE
DUPLICATION OF REMEDIES WHICH IS PREGNANT WITH POTENTIALITIES OF
CLASHES AND CONFLICTS.* 

*ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740, IS NOT IN
POINT BECAUSE THE FEDERAL ACT AT THAT TIME MADE NO PROVISION FOR
ENJOINING UNION ACTIVITIES. 

OF COURSE THE STATES MAY CONTROL VIOLENCE.  THEY MAY MAKE ARRESTS AND
INVOKE THEIR CRIMINAL LAW TO THE HILT.  THEY TRANSGRESS ONLY WHEN THEY
ALLOW THEIR ADMINISTRATIVE AGENCIES OR THEIR COURTS TO ENJOIN THE
CONDUCT THAT CONGRESS HAS AUTHORIZED THE FEDERAL AGENCY TO ENJOIN.  WE
RETREAT FROM GARNER AND OPEN THE DOOR TO UNSEEMLY CONFLICTS BETWEEN
STATE AND FEDERAL AGENCIES WHEN WE SUSTAIN WHAT WISCONSIN HAS DONE
HERE. 
..END :



DURLEY V. MAYO 351 U.S. 277 


NO. 489.  ARGUED APRIL 2, 1956.  - DECIDED JUNE 4, 1956.  - CASE
DISMISSED. 


UPON REVIEWING THE DECISION OF THE SUPREME COURT OF FLORIDA DENYING,
WITHOUT OPINION, PETITIONER'S PETITION FOR A WRIT OF HABEAS CORPUS, IN
WHICH HE CLAIMED, INTER ALIA, THAT HIS STATE CONVICTION AND
IMPRISONMENT FOR STEALING CATTLE VIOLATED THE FEDERAL CONSTITUTION, IT
APPEARED THAT THE JUDGMENT OF THAT COURT MIGHT HAVE RESTED ON ONE OR
BOTH OF TWO ADEQUATE STATE GROUNDS.  HELD:  THE CASE IS DISMISSED FOR
LACK OF JURISDICTION.  PP. 278-285. 

(A)  WHERE THE HIGHEST COURT OF A STATE DELIVERS NO OPINION AND IT
APPEARS THAT ITS JUDGMENT MIGHT HAVE RESTED ON A NONFEDERAL GROUND,
THIS COURT WILL NOT TAKE JURISDICTION TO REVIEW THE JUDGMENT. 
STEMBRIDGE V. GEORGIA, 343 U.S. 541.  PP. 281-282. 

(B)  THE SUPREME COURT OF FLORIDA MIGHT HAVE RESTED ITS DENIAL OF THE
PETITION HERE INVOLVED ON EITHER OR BOTH OF THE FOLLOWING GROUNDS:  (1)
THAT THE SEVERAL FEDERAL ISSUES PRESENTED BY IT HAD BEEN RAISED
PREVIOUSLY WITHIN THE MEANING OF FLA. STAT. ANN., 1943, SEC. 79.10, AND
THEREFORE COULD NOT BE RAISED IN THE PRIOR PROCEEDINGS AND,
ACCORDINGLY, WERE NOT AVAILABLE AS A MATTER OF STATE LAW UNDER FLORIDA
DECISIONS.  PP. 282-284. 

(C)  THERE IS NOTHING IN THE ORDER OF THE SUPREME COURT OF FLORIDA TO
SHOW THAT THAT COURT MUST HAVE DECIDED THE CASE ON FEDERAL GROUNDS
RATHER THAN ON THE READILY AVAILABLE AND SUBSTANTIAL STATE GROUNDS. 
PP. 284-285. 

DURLEY V. MAYO, CUSTODIAN, FLORIDA STATE PRISON. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE OUR JURISDICTION IS QUESTIONED BY THE STATE OF FLORIDA
BECAUSE THE JUDGMENT OF THE SUPREME COURT OF THAT STATE, WHICH WE ARE
ASKED TO REVIEW AND WHICH WAS RENDERED WITHOUT OPINION, MAY HAVE RESTED
UPON AN ADEQUATE STATE GROUND.  FOR THE REASONS HEREAFTER STATED, WE
FIND THAT TO BE TRUE WITH THE RESULT THAT WE HAVE NO JURISDICTION TO
ENTERTAIN THIS PETITION OR TO CONSIDER THE MERITS OF THE FEDERAL
QUESTIONS SUGGESTED BY PETITIONER.  WHILE WE THUS DEEM PETITIONER'S
ALLEGATIONS OF FACT AS TO THE MERITS OF THIS CASE TO BE IRRELEVANT
HERE, WE IMPLY NOTHING AS TO THEIR TRUTH OR FALSITY, AND WE REFRAIN
FROM ANY DISCUSSION THAT DEPENDS UPON OR ASSUMES THEIR TRUTH. 

IN 1945, PETITIONER DURLEY WAS CONVICTED BY A JURY IN THE CRIMINAL
COURT OF RECORD FOR POLK COUNTY, FLORIDA, ON TWO INFORMATIONS.  IN EACH
HE WAS CHARGED, IN THREE COUNTS, WITH STEALING CATTLE.  (FN1)  IN THE
FIRST COUNT OF THE FIRST INFORMATION IT WAS CHARGED THAT, ON JULY 7,
1945, PETITIONER, WITH TWO OTHERS, STOLE TWO STEERS FROM A MRS.
BRONSON; IN THE SECOND COUNT, TWO COWS; AND IN THE THIRD COUNT, ONE
HEIFER.  THE THREE COUNTS OF THE OTHER INFORMATION CHARGED THAT THE
SAME MEN ON JULY 29, 1945, STOLE FROM A MR. ZIPPERER A COW AND TWO
HEIFERS, EACH OF THE ANIMALS ALLEGEDLY STOLEN BEING THE SUBJECT OF A
SEPARATE COUNT.  PETITIONER WAS SENTENCED TO SERVE FIVE YEARS'
IMPRISONMENT ON EACH COUNT, THE TERMS TO BE SERVED CONSECUTIVELY, THUS
MAKING A TOTAL OF 30 YEARS. 

PETITIONER DID NOT APPEAL FROM HIS CONVICTION BUT, IN 1949, LABELING
HIS PETITION A WRIT OF ERROR CORAM NOBIS, HE, PRO SE, UNSUCCESSFULLY
SOUGHT RELIEF.  IN THE SAME YEAR, ALSO PRO SE, HE FILED A PETITION FOR
A WRIT OF HABEAS CORPUS IN THE SUPREME COURT OF FLORIDA CLAIMING THAT
HE WAS CONFINED IN VIOLATION OF THE FIFTH AMENDMENT TO THE FEDERAL
CONSTITUTION BECAUSE HE HAD BEEN TRIED ON INFORMATIONS RATHER THAN ON
INDICTMENTS, THAT THE VERDICT RESTED ON PERJURED TESTIMONY, (FN2) AND
THAT HE HAD BEEN DENIED A HEARING ON HIS PETITION FOR A WRIT OF ERROR
CORAM NOBIS.  THIS PETITION FOR HABEAS CORPUS WAS DENIED BY THE SUPREME
COURT OF FLORIDA, WITHOUT OPINION, ON THE GROUND THAT PETITIONER FAILED
TO SHOW PROBABLE CAUSE THAT HE WAS HELD WITHOUT LAWFUL AUTHORITY. 

IN 1952, WITH THE AID OF COURT-APPOINTED COUNSEL, PETITIONER FILED A
PETITION FOR A WRIT OF HABEAS CORPUS IN A FLORIDA CIRCUIT COURT.  THERE
HE CLAIMED THAT THE INFORMATIONS UPON WHICH HE HAD BEEN CONVICTED
CHARGED THE COMMISSION OF ONLY TWO, RATHER THAN SIX, OFFENSES AND THAT
HE ALREADY HAD SERVED SUFFICIENT TIME TO SATISFY A TEN-YEAR SENTENCE
WHICH WOULD HAVE BEEN THE MAXIMUM SENTENCE PERMISSIBLE FOR TWO SUCH
OFFENSES.  PETITIONER ALSO CHARGED THAT HIS IMPRISONMENT WAS IN
VIOLATION OF HIS RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES.  A
WRIT WAS ISSUED, A RETURN WAS FILED, AND THE COURT HEARD ARGUMENT OF
COUNSEL FOR EACH SIDE.  THE WRIT WAS QUASHED.  PETITIONER APPEALED TO
THE SUPREME COURT OF FLORIDA, WHERE HIS APPEAL WAS DISMISSED WITHOUT
OPINION. 

IN 1955, PETITIONER, AGAIN PRO SE, INSTITUTED THE PRESENT PROCEEDING
BY FILING IN THE SUPREME COURT OF FLORIDA ANOTHER PETITION FOR A WRIT
OF HABEAS CORPUS.  IN IT HE CLAIMED, INTER ALIA, THAT HIS DETENTION WAS
AN "ABUSE OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES  ...  " AND THAT HIS CONSECUTIVE
SENTENCES NOT ONLY VIOLATED THE FEDERAL AND STATE CONSTITUTIONS, BUT
WERE CONTRARY TO A RECENT DECISION OF THE SUPREME COURT OF FLORIDA,
CITING HEARN V. FLORIDA, 55 SO. 2D 559.  THAT PETITION WAS ARGUED IN
THE SUPREME COURT OF FLORIDA BY COUNSEL FOR THE STATE, ALTHOUGH NEITHER
PETITIONER NOR HIS COUNSEL WAS PRESENT.  THE PETITION WAS DENIED,
WITHOUT OPINION, AGAIN ON THE GROUND THAT PETITIONER FAILED TO SHOW
PROBABLE CAUSE THAT HE WAS HELD WITHOUT LAWFUL AUTHORITY. 

A REHEARING WAS DENIED BUT PETITIONER'S APPLICATION FOR A WRIT OF
CERTIORARI WAS GRANTED BY THIS COURT, 350 U.S. 872, AND COUNSEL WAS
APPOINTED BY THIS COURT TO REPRESENT HIM HERE, 350 U.S. 900.  THE CASE
WAS FULLY BRIEFED AND ARGUED ON THE JURISDICTIONAL ISSUE AS WELL AS ON
THE MERITS. 

THE STATE OF FLORIDA HAS OBJECTED CONSISTENTLY TO OUR ENTERTAINING
JURISDICTION OF THIS PROCEEDING.  ITS REASON IS THAT THE FLORIDA
SUPREME COURT'S DENIAL OF THE 1955 PETITION FOR A WRIT OF HABEAS CORPUS
MAY HAVE RESTED UPON ONE OR BOTH OF TWO ADEQUATE STATE GROUNDS.  THOSE
GROUNDS ARE (1) THAT, UNDER FLORIDA LAW, THE ISSUES PRESENTED IN 1955
ALREADY HAD BEEN RENDERED RES JUDICATA BY THE 1952 LITIGATION, AND (2)
THAT, IN ANY EVENT, PETITIONER WAS PRECLUDED FROM RAISING THE FEDERAL
ISSUES PRESENTED IN 1955 BECAUSE HE HAD FAILED TO RAISE THEM IN
COMPARABLE PRIOR PROCEEDINGS WHERE HE HAD A FAIR AND ADEQUATE
OPPORTUNITY TO DO SO. 

THE STATE'S CLAIM AS TO RES JUDICATA RESTS PRIMARILY UPON FLA. STAT.
ANN., 1943, SEC. 79.10, WHICH PROVIDES THAT, WHILE A JUDGMENT DENYING A
PETITION FOR A WRIT OF HABEAS CORPUS REMAINS IN FORCE, NO PERSON "SHALL
BE AT LIBERTY TO OBTAIN ANOTHER HABEAS CORPUS FOR THE SAME CAUSE, OR BY
ANY OTHER PROCEEDING TO BRING THE SAME MATTER AGAIN IN QUESTION EXCEPT
BY A WRIT OR BY ACTION OF FALSE IMPRISONMENT  ...  ." 

FLORIDA'S OTHER STATE GROUND IS BASED UPON ITS SUPREME COURT
DECISIONS, AND PARTICULARLY UPON WASHINGTON V. MAYO, 77 SO. 2D 620,
621.  IT IS THERE STATED THAT "THE RULE IS CLEAR THAT A CONVICTED
PRISONER SHOULD NOT BE HEARD TO RAISE IN A SUBSEQUENT PROCEEDING,
WHATEVER ITS NATURE, ISSUES THAT WERE PREVIOUSLY RAISED AND DETERMINED,
OR THAT THE PRISONER HAD A FAIR AND ADEQUATE OPPORTUNITY TO RAISE AND
HAVE DETERMINED IN EARLIER PROCEEDINGS." 

IN THE FACE OF THESE EXPRESSIONS OF THE LAW OF FLORIDA, PETITIONER,
IN ORDER TO ESTABLISH OUR JURISDICTION, MUST DEMONSTRATE THAT NEITHER
OF THESE STATE GROUNDS CAN ACCOUNT FOR THE DECISION BELOW.  "WHERE THE
HIGHEST COURT OF THE STATE DELIVERS NO OPINION AND IT APPEARS THAT THE
JUDGMENT MIGHT HAVE RESTED UPON A NONFEDERAL GROUND, THIS COURT WILL
NOT TAKE JURISDICTION TO REVIEW THE JUDGMENT."  STEMBRIDGE V. GEORGIA,
343 U.S. 541, 547. 

"IT IS A WELL ESTABLISHED PRINCIPLE OF THIS COURT THAT BEFORE WE WILL
REVIEW A DECISION OF A STATE COURT IT MUST AFFIRMATIVELY APPEAR FROM
THE RECORD THAT THE FEDERAL QUESTION WAS PRESENTED TO THE HIGHEST COURT
OF THE STATE HAVING JURISDICTION AND THAT ITS DECISION OF THE FEDERAL
QUESTION WAS NECESSARY TO ITS DETERMINATION OF THE CAUSE.  HONEYMAN V.
HANAN, 300 U.S. 14, 18; LYNCH V. NEW YORK, 293 U.S. 52.  AND WHERE THE
DECISION OF THE STATE COURT MIGHT HAVE BEEN EITHER ON A STATE GROUND OR
ON A FEDERAL GROUND AND THE STATE GROUND IS SUFFICIENT TO SUSTAIN THE
JUDGMENT, THE COURT WILL NOT UNDERTAKE TO REVIEW IT.  KLINGER V.
MISSOURI, 13 WALL.  257, 263; WOOD MOWING & REAPING MACHINE CO. V.
SKINNER, 139 U.S. 293, 297; ALLEN V. ARGUIMBAU, 198 U.S. 149, 154-155;
LYNCH V. NEW YORK, SUPRA ...  .  BUT IT IS LIKEWISE WELL SETTLED THAT
IF THE INDEPENDENT (STATE) GROUND WAS NOT A SUBSTANTIAL OR SUFFICIENT
ONE, 'IT WILL BE PRESUMED THAT THE STATE COURT BASED ITS JUDGMENT ON
THE LAW RAISING THE FEDERAL QUESTION, AND THIS COURT WILL THEN TAKE
JURISDICTION.'  KLINGER V. MISSOURI, SUPRA, P. 263; JOHNSON V. RISK,
137 U.S. 300, 307; LAWRENCE V. STATE TAX COMMISSION, 286 U.S. 276, 282
283."  WILLIAMS V. KAISER, 323 U.S. 471, 477-478. 

WHILE THE FEDERAL QUESTIONS RELIED UPON BY PETITIONER IN 1955 ARE NOT
SET FORTH BY HIM AS CLEARLY AS THEY MIGHT BE, WE DO NOT RELY UPON THAT
INADEQUACY.  (FN3) 

PETITIONER ARGUES THAT SEC. 79.10 DOES NOT EMBODY THE TRADITIONALLY
BROAD DOCTRINE OF RES JUDICATA.  HE SUGGESTS THAT THE STATUTE BARS ONLY
THE RELITIGATION OF QUESTIONS AND MATTERS THAT HAVE BEEN SPECIFICALLY
PRESENTED AND DECIDED.  BY THUS CONSTRUING SEC. 79.10, HE ARGUES THAT
NONE OF THE PRECISE FEDERAL ISSUES RAISED IN THE 1955 PETITION WERE
SUFFICIENTLY RAISED AND CONSIDERED UNDER HIS PREVIOUS PETITIONS. 
HOWEVER, THE SUPREME COURT OF FLORIDA HAS TREATED SEC. 79.10 AS
APPLYING THE GENERAL RULE OF RES JUDICATA.  SEE FLORIDA EX REL.
CACCIATORE V. DRUMBRIGHT, 116 FLA. 496, 156 SO. 721; FLORIDA EX REL.
WILLIAMS V. PRESCOTT, 110 FLA. 261, 148 SO. 533; D'ALESSANDRO V.
TIPPINS, 102 FLA. 10, 137 SO. 231.  IT EVEN HAS APPLIED THAT DOCTRINE
WITHOUT REFERENCE TO SEC. 79.10.  SEE FLORIDA EX REL. DAVIS V. HARDIE,
108 FLA. 133, 146 SO. 97.  ON THE OTHER HAND, IT HAS, AT TIMES, TREATED
HABEAS CORPUS PETITIONS AS BARRED BY SEC. 79.10 ONLY WHERE THE ISSUES
HAVE BEEN RAISED AND DECIDED IN A PRIOR PROCEEDING.  SEE MOAT V. MAYO,
82 SO. 2D 591; LEE V. TUCKER, 42 SO. 2D 49; POPE V.  MAYO, 39 SO. 2D
286; AND COMPARE FLORIDA EX REL. WILLIAMS V. PRESCOTT, SUPRA; FLORIDA
EX REL. DAVIS V. HARDIE, SUPRA. 

IN ITS MORE RECENT CASES, THE SUPREME COURT OF FLORIDA HAS HELD THAT,
ON AN ORIGINAL APPLICATION FOR HABEAS CORPUS, THE PETITIONER MAY NOT
RAISE ISSUES THAT HAVE BEEN RAISED IN PRIOR PROCEEDINGS WHATEVER THOSE
MAY HAVE BEEN.  ALSO, THAT UNLESS HE CAN SHOW GOOD REASON FOR HIS
FAILURE TO DO SO, HE IS PRECLUDED FROM RAISING ISSUES WHICH HE COULD
HAVE RAISED IN ANY PRIOR PROCEEDINGS.  WASHINGTON V. MAYO, 77 SO. 2D
620; IRVIN V. CHAPMAN, 75 SO. 2D 591; FLORIDA EX REL. JOHNSON V. MAYO,
69 SO. 2D 307.  (FN4)  IN ARGUING BEFORE US THAT THE ISSUES NOW RAISED
WERE OR WERE NOT RAISED IN PRIOR PROCEEDINGS, THE PARTIES HAVE RELIED
SOMEWHAT UPON CASES FROM THIS COURT TO SUPPORT THEIR ARGUMENTS.   THOSE
DECISIONS ARE NOT SQUARELY IN POINT BECAUSE THE ISSUE BEFORE US IS NOT
ONE OF FEDERAL LAW.  THE ISSUE BEFORE US ON RES JUDICATA IS WHETHER,
UNDER FLORIDA LAW, PETITIONER WAS OR WAS NOT FREE TO RAISE IN THE
SUPREME COURT OF FLORIDA IN 1955 THE QUESTIONS HE ATTEMPTED TO RAISE
THERE.  WE CONCLUDE THAT THE SUPREME COURT OF FLORIDA MIGHT HAVE RESTED
ITS DENIAL OF THE 1955 PETITION ON THE GROUNDS THAT THE SEVERAL FEDERAL
ISSUES PRESENTED TO IT IN 1955 HAD BEEN PREVIOUSLY RAISED WITHIN THE
MEANING OF SEC. 79.10 AND, THEREFORE, COULD NOT BE RAISED AGAIN UNDER
THE STATE PRACTICE, OR AT LEAST COULD HAVE BEEN RAISED IN THE PRIOR
PROCEEDINGS AND, ACCORDINGLY, UNDER THE ABOVE DECISIONS THEY LIKEWISE
WERE NOT AVAILABLE AS A MATTER OF STATE LAW.  (FN5) 

PETITIONER FURTHER SUGGESTS THAT, UNDER FLORIDA LAW, THE DOCTRINE OF
RES JUDICATA WILL "NOT BE SO RIGIDLY APPLIED AS TO DEFEAT THE ENDS OF
JUSTICE."  UNIVERSAL CONSTRUCTION CO. V. FORT LAUDERDALE, 68 SO. 2D
366, 369.  RELYING ON THAT CASE, PETITIONER ARGUES THAT THE APPLICATION
OF RES JUDICATA IS WITHIN THE DISCRETION OF THE COURT, BUT THAT CASE
DOES NOT PROVIDE THE NECESSARY AUTHORITY FOR THAT CONCLUSION.  IN THAT
CASE, THE SUPREME COURT OF FLORIDA, EXERCISING TRADITIONAL COMMON-LAW
AND EQUITABLE POWERS, CREATED AN EXCEPTION TO THE COMMON-LAW DOCTRINE
OF RES JUDICATA BECAUSE OF AN "UNUSUAL SITUATION" CONFRONTING IT.  ID.,
AT 370.  THE QUESTION BEFORE US IS WHETHER, UNDER THE FACTS OF THIS
CASE, THE SUPREME COURT OF FLORIDA MUST NECESSARILY READ A SIMILAR
EXCEPTION INTO AN ACT OF THE LEGISLATURE.  WE FIND NO AUTHORITATIVE
BASIS FOR DOING SO. 

FINALLY, IT IS SUGGESTED THAT THE ORDER OF THE FLORIDA COURT DENYING
THE 1955 PETITION SHOWS AFFIRMATIVELY THAT THE COURT DECIDED THE
PETITION ON THE MERITS OF THE FEDERAL QUESTIONS RAISED.  WE DO NOT SO
READ IT.  AT MOST IT IS INCONCLUSIVE AND LEAVES ROOM FOR A DECISION ON
THE STATE GROUNDS INDICATED IN SEC. 79.10 OR BY WASHINGTON V. MAYO,
SUPRA.  THE LANGUAGE OF THE ORDER IS THAT PETITIONER "FAILED TO SHOW
...  PROBABLE CAUSE TO BELIEVE THAT HE IS DETAINED IN CUSTODY WITHOUT
LAWFUL AUTHORITY  ...  ."  THAT IS STATED IN THE STANDARD FORM USED IN
HABEAS CORPUS PROCEEDINGS.  WE FIND NOTHING ON ITS FACE SHOWING THAT
THE COURT MUST HAVE DECIDED THE CASE ON FEDERAL GROUNDS RATHER THAN ON
THE READILY AVAILABLE AND SUBSTANTIAL STATE GROUNDS. 

INASMUCH AS THE SUPREME COURT OF FLORIDA'S DENIAL OF THE 1955
PETITION MIGHT HAVE RESTED ON EITHER OF THE STATE GROUNDS NOW SUGGESTED
BY THE STATE, PETITIONER HAS FAILED TO ESTABLISH OUR JURISDICTION TO
DECIDE THE FEDERAL ISSUES THAT HE URGES UPON US.  HE HAS NOT SHOWN THAT
THEY HAVE BEEN PASSED UPON BY THE HIGHEST COURT OF HIS STATE. 

FOR LACK OF JURISDICTION, THE CASE, THEREFORE, MUST BE DISMISSED. 

FN1  "811.11  HORSE OR CATTLE STEALING. 

"WHOEVER COMMITS LARCENY BY STEALING ANY HORSE, MARE, FILLY, COLT,
COW, BULL, OX, STEER, HEIFER OR CALF, THE PROPERTY OF ANOTHER, SHALL BE
PUNISHED BY IMPRISONMENT IN THE STATE PRISON NOT LESS THAN TWO YEARS
NOR MORE THAN FIVE YEARS."  FLA. STAT. ANN., 1944. 

FN2  THERE WAS NO ALLEGATION IN THIS OR THE SUBSEQUENT PETITION THAT
THE PROSECUTION KNOWINGLY USED PERJURED TESTIMONY AS IN MOONEY V.
HOLOHAN, 294 U.S. 103. 

FN3  THE 1955 PETITION FOR HABEAS CORPUS AND THE PETITION FOR
CERTIORARI TO THIS COURT WERE DRAFTED BY PETITIONER.  IN SIMILAR
CIRCUMSTANCES, THIS COURT HAS HELD THAT "WHERE THE SUBSTANCE OF THE
CLAIM IS CLEAR, WE SHOULD NOT INSIST UPON MORE REFINED ALLEGATIONS THAN
(SUCH A PERSON) COULD BE EXPECTED TO SUPPLY."  TOMKINS V. MISSOURI, 323
U.S. 485, 487; RICE V. OLSON, 324 U.S. 786, 791-792; HOLIDAY V.
JOHNSTON, 313 U.S. 342, 350.  FLORIDA FOLLOWS THE SAME PRACTICE.  EX
PARTE AMOS, 93 FLA. 5, 12, 112 SO. 289, 292; CHASE V. FLORIDA EX REL.
BURCH, 93 FLA. 963, 968, 113 SO. 103, 106.    FN4  WHILE IT IS TRUE
THAT IN THE JOHNSON AND IRVIN CASES THE ISSUES SOUGHT TO BE RAISED IN
THE HABEAS CORPUS PROCEEDING COULD HAVE BEEN RAISED ON DIRECT APPEAL,
THE COURT HELD THAT THE WRIT WAS NOT AVAILABLE BECAUSE THE PETITIONERS
HAD FAILED TO RAISE THOSE ISSUES IN "PRIOR PROCEEDINGS."  THESE
INCLUDED A WRIT OF ERROR CORAM NOBIS IN JOHNSON AND A PREVIOUS TRIAL ON
THE MERITS IN IRVIN. 

IT IS SUGGESTED THAT THE WASHINGTON CASE DOES NOT PRECLUDE THIS COURT
FROM TAKING JURISDICTION BECAUSE IN THAT CASE THE COURT, WHILE STATING
THE RULE THAT WOULD PRECLUDE JURISDICTION, DID CONSIDER ON ITS MERITS A
NONFEDERAL CONTENTION WHICH HAD NOT BEEN PREVIOUSLY RAISED.  BUT
ASSUMING THAT THE CONTENTION SO CONSIDERED HAD INVOLVED A SUBSTANTIAL
FEDERAL QUESTION, THIS COURT WOULD HAVE LACKED JURISDICTION TO REVIEW
THE JUDGMENT FOR THE REASON THAT IT MIGHT HAVE RESTED UPON THE ADEQUATE
STATE GROUND.  FOR OUR PURPOSES, THEREFORE, THE DISCUSSION OF THE
MERITS IN THAT CASE MAY BE TREATED AS DICTA. 

FURTHERMORE, THE CONTENTION CONSIDERED ON ITS MERITS IN THE
WASHINGTON CASE "APPARENTLY WAS NOT RAISED UPON THE EARLIER PROCEEDING
...  ."  77 SO. 2D, AT 622.  IN THE INSTANT CASE, THE PERJURY ISSUE WAS
PRESENTED IN THE 1949 PETITION, ALTHOUGH NOT IN TERMS OF A FEDERAL
CONSTITUTIONAL ISSUE.  THE WASHINGTON CASE, THEREFORE, IS CERTAINLY NO
AUTHORITY FOR A CONCLUSION IN THE INSTANT CASE THAT ANY ISSUES GROWING
OUT OF THE PREVIOUSLY RAISED ISSUE, THAT THE CONVICTION RESTED UPON
PERJURED TESTIMONY, COULD BE RAISED IN THE PROCEEDING WHICH IS BEFORE
US. 

FN5  OUR DISCUSSION OF THE FLORIDA LAW IS SOLELY FOR THE PURPOSE OF
DETERMINING WHETHER THE TEST FOR OUR JURISDICTION IS MET.  WE DO NOT
INTIMATE THAT, UNDER THAT LAW, PETITIONER IS FORECLOSED FROM SEEKING
ANY FURTHER REMEDIAL PROCESS THAT MAY BE OPEN TO HIM. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE CLARK CONCUR, DISSENTING. 

PETITIONER IS A PRISONER IN THE FLORIDA STATE PRISON, SERVING A TOTAL
SENTENCE OF 30 YEARS FOR CATTLE STEALING.  IN FEBRUARY 1955 HE FILED A
PETITION FOR A WRIT OF HABEAS CORPUS IN THE SUPREME COURT OF FLORIDA. 
THAT COURT DENIED THE PETITION WITHOUT AFFORDING PETITIONER A HEARING
AND WITHOUT REQUIRING A RESPONSE FROM RESPONDENT, THE CUSTODIAN OF THE
PRISON.  A TIMELY MOTION FOR REHEARING WAS ALSO DENIED.  WE GRANTED
CERTIORARI.  350 U.S. 872. 

IN THESE CIRCUMSTANCES, THE ALLEGATIONS OF THE PETITION MUST BE
ACCEPTED AS TRUE FOR PURPOSES OF REVIEW.  SEE HAWK V. OLSON, 326 U.S.
271, 273; WILLIAMS V. KAISER, 323 U.S. 471, 473-474.  IF THEY ARE TAKEN
AS TRUE, WE HAVE A SHOCKING CASE OF MISCARRIAGE OF JUSTICE. 

IN 1945 THE COUNTY SOLICITOR FOR POLK COUNTY, FLORIDA, FILED TWO
INFORMATIONS CHARGING PETITIONER AND TWO CO-DEFENDANTS, R.B. MASSEY,
JR., AND CHARLES BATH, WITH SIX OFFENSES OF STEALING CATTLE, EACH
INFORMATION CONTAINING THREE SEPARATE COUNTS.  THE FIRST COUNT OF THE
FIRST INFORMATION CHARGED THAT THE THREE DEFENDANTS ON JULY 7, 1945,
STOLE TWO STEERS BELONGING TO MRS. EDNA P. BRONSON; THE SECOND COUNT
CHARGED THAT THE THREE DEFENDANTS ON JULY 7, 1945, STOLE TWO COWS
BELONGING TO MRS. BRONSON; AND THE THIRD COUNT CHARGED THAT ON JULY 7,
1945, THEY STOLE ONE HEIFER BELONGING TO MRS. BRONSON.  IN THE SECOND
INFORMATION, THE FIRST COUNT CHARGED THAT THE THREE DEFENDANTS ON JULY
29, 1945, STOLE ONE COW BELONGING TO WILLIAM C. ZIPPERER; AND THE THIRD
COUNT CHARGED THAT, ON THE SAME DAY, THE DEFENDANTS STOLE ONE HEIFER
BELONGING TO MR. ZIPPERER.  THE SECOND AND THIRD COUNTS OF THE SECOND
INFORMATION ARE VIRTUALLY IDENTICAL. 

AT THE TRIAL PETITIONER ASSERTED HIS INNOCENCE.  HIS TWO
CODEFENDANTS, HOWEVER, ADMITTED THEIR GUILT AND IMPLICATED PETITIONER. 
THEIR TESTIMONY WAS THE ONLY EVIDENCE LINKING PETITIONER WITH THE
CRIMES CHARGED.  ALL THREE WERE CONVICTED.  BATH APPARENTLY RECEIVED A
SENTENCE OF TWO YEARS' IMPRISONMENT AND MASSEY, 26 YEARS.  PETITIONER,
53 YEARS OLD AT THE TIME AND NEVER BEFORE ACCUSED OF DISHONESTY, WAS
SENTENCED TO FIVE YEARS' IMPRISONMENT ON EACH OF THE 6 COUNTS, EACH
SENTENCE TO BE SERVED CONSECUTIVELY, MAKING A TOTAL SENTENCE OF 30
YEARS.  PETITIONER, NOW 63 YEARS OLD, HAS SERVED MORE THAN 10 YEARS OF
HIS SENTENCE. 

IN MAY 1949 PETITIONER, WITHOUT THE ASSISTANCE OF COUNSEL, PREPARED A
PETITION FOR WRIT OF HABEAS CORPUS AND FILED IT IN THE SUPREME COURT OF
FLORIDA.  THE PETITION WAS INARTISTICALLY DRAWN.  PETITIONER CONTENDED
THAT HIS TRIAL ON A BILL OF INFORMATION RATHER THAN ON A GRAND JURY
INDICTMENT VIOLATED THE FIFTH AMENDMENT OF THE UNITED STATES
CONSTITUTION.  SECONDLY, HE CONTENDED THAT "HE IS INNOCENT OF SAID
OFFENSE AND IS FALSELY IMPRISONED BY REASON THAT VERDICT OF GUILT WAS
WHOLLY SUPPORTED BY PREJUDICE AND PERJURED TESTIMONY."  ACCOMPANYING
THE PETITION WAS AN AFFIDAVIT BY ONE J.E. CROFT RELATING A PRISON
CONVERSATION HE HAD WITH BATH, THE CODEFENDANT WHO RECEIVED THE
RELATIVELY LIGHT SENTENCE OF TWO YEARS' IMPRISONMENT.  ACCORDING TO
THIS AFFIDAVIT, BATH TOLD CROFT THAT PETITIONER WAS COMPLETELY
INNOCENT.  BATH DESCRIBED AN AGREEMENT WHICH HE AND CODEFENDANT MASSEY
HAD MADE BEFORE THEY EMBARKED ON THEIR CATTLE-STEALING VENTURES.  THEY
AGREED THAT, IF THEY WERE CAUGHT, THEY WOULD SAY THEY WERE WORKING FOR
PETITIONER, FOR WHOM THEY HAD WORKED AS LABORERS ON OTHER OCCASIONS. 
BATH EXPLAINED THAT BY NAMING PETITIONER THEY HAD HOPED TO BE "PASSED
UP" AND GIVEN A CHANCE TO GET OUT OF THE COUNTRY. 

IN ADDITION TO THE CROFT AFFIDAVIT, THE HABEAS CORPUS PETITION WAS
ACCOMPANIED BY AN AFFIDAVIT SIGNED AND SWORN TO BY MASSEY.  HE RECANTED
HIS TRIAL TESTIMONY, CLEARING PETITIONER OF ALL RESPONSIBILITY FOR THE
STOLEN CATTLE.  MASSEY STATED THAT HIS STORY IMPLICATING PETITIONER
"WAS A FALSEHOOD AND THAT I GAVE SUCH TESTIMONY, HOPING THAT IT WOULD
AID ME WHEN MY CASE CAME UP."  THE AFFIDAVIT CONCLUDED, "BEFORE GOD IS
MY JUDGE DAN DURLEY, NEVER HAD ANYTHING TO DO WITH ANY CATTLE STEALING
THAT I TESTIFIED TO AT THE TRIAL." 

THE SUPREME COURT OF FLORIDA DENIED THE 1949 PETITION FOR A WRIT OF
HABEAS CORPUS ON THE GROUND THAT PETITIONER HAD FAILED TO SHOW PROBABLE
CAUSE THAT HIS DETENTION WAS UNLAWFUL.  IT SHOULD BE NOTED THAT THE
1949 PETITION DID NOT ASSERT THAT THE USE OF PERJURED TESTIMONY
DEPRIVED PETITIONER OF A FEDERAL CONSTITUTIONAL RIGHT. 

IN JANUARY 1952 PETITIONER FILED A SECOND HABEAS CORPUS PETITION IN
THE CIRCUIT COURT OF UNION COUNTY, FLORIDA, THIS TIME ASSISTED BY COURT
APPOINTED COUNSEL.  HE CONTENDED THAT THE SIX 5-YEAR SENTENCES AMOUNTED
TO DOUBLE JEOPARDY BECAUSE THE TWO INFORMATIONS UPON WHICH HE WAS
CONVICTED CHARGED HIM IN SUBSTANCE WITH NO MORE THAN TWO OFFENSES, EACH
OF WHICH CARRIED A MAXIMUM PENALTY OF 5 YEARS, AND THAT PETITIONER HAD
ALREADY SERVED SUFFICIENT TIME TO SATISFY A 10-YEAR SENTENCE.  HE MADE
A GENERAL CLAIM THAT HIS IMPRISONMENT WAS "IN DIRECT VIOLATION OF HIS
RIGHTS AS SET OUT IN THE CONSTITUTION OF THE UNITED STATES."  THERE WAS
NO MENTION OF THE PERJURED TESTIMONY ISSUE.  AFTER ARGUMENT THE CIRCUIT
COURT OF UNION COUNTY QUASHED THE WRIT.  AN APPEAL TO THE SUPREME COURT
OF FLORIDA WAS DISMISSED. 

THE BASIS OF THE PRESENT LITIGATION IS THE HABEAS CORPUS PETITION
FILED IN THE FLORIDA SUPREME COURT IN FEBRUARY 1955.  PETITION PREPARED
IT WITHOUT THE AID OF COUNSEL.  THE PETITION REPEATS THE DOUBLE
JEOPARDY CONTENTION AS WELL AS THE CHARGE THAT HE WAS CONVICTED SOLELY
ON THE BASIS OF PERJURED TESTIMONY, COUPLING THESE ALLEGATIONS WITH A
CLAIM THAT HIS IMPRISONMENT DEPRIVES HIM OF LIBERTY "IN VIOLATION OF
HIS CONSTITUTIONAL RIGHTS AFFORDED HIM BY THE STATE OF FLORIDA AND THE
CONSTITUTION OF THE UNITED STATES OF AMERICA."  HIS FEDERAL
CONSTITUTIONAL ARGUMENTS WERE ELABORATED IN THE MOTION FOR REHEARING. 
PETITIONER'S CLAIM THAT IT VIOLATES DUE PROCESS TO LET HIS CONVICTION
STAND SOLELY ON PERJURED TESTIMONY WAS RAISED FOR THE FIRST TIME IN THE
1955 HABEAS CORPUS PETITION - THE ONE NOW UNDER CONSIDERATION.  (FN1) 

THE COURT DISMISSES THE CASE ON THE GROUND THAT THE FLORIDA SUPREME
COURT ORDER DENYING HABEAS CORPUS MIGHT HAVE RESTED ON AN ADEQUATE
STATE GROUND - RES JUDICATA.  I DISAGREE. 

THE COURT CONCLUDES THAT UNDER FLORIDA LAW PETITIONER IS BARRED FROM
RAISING FEDERAL ISSUES IN THE 1955 HABEAS CORPUS PROCEEDING BECAUSE HE
HAD RAISED THEM OR AT LEAST HAD A FAIR AND ADEQUATE OPPORTUNITY TO
RAISE THEM IN PRIOR HABEAS CORPUS PROCEEDINGS.  THE COURT STRANGELY
RELIES ON WASHINGTON V. MAYO, 77 SO. 2D 620.  THAT CASE INVOLVED A
HABEAS CORPUS PETITION IN WHICH TWO CONTENTIONS WERE RAISED.  THE FIRST
CONTENTION HAD BEEN EXPRESSLY RAISED AND DECIDED IN A PREVIOUS HABEAS
CORPUS PROCEEDING.  THE SECOND CONTENTION, HOWEVER, HAD NOT BEEN RAISED
PREVIOUSLY.  THIS CONTENTION WAS DECIDED ON THE MERITS BY THE FLORIDA
SUPREME COURT EVEN THOUGH THE PETITIONER "HAS NOT SHOWN THAT HE DID NOT
HAVE A FAIR AND ADEQUATE OPPORTUNITY TO RAISE AND HAVE IT DETERMINED." 
ID., AT 622. 

JOHNSON V. MAYO, 69 SO. 2D 307, AND IRVIN V. CHAPMAN, 75 SO. 2D 591,
ALSO RELIED ON BY THE COURT, ARE NOT IN POINT.  IN BOTH CASES, THE
FLORIDA SUPREME COURT HELD THAT AN ISSUE THAT COULD HAVE BEEN RAISED ON
DIRECT APPEAL FROM THE CONVICTION COULD NOT BE LITIGATED IN SUBSEQUENT
HABEAS CORPUS PROCEEDINGS.  (FN2)  THOSE CASES DID NOT INVOLVE THE
QUESTION NOW BEFORE US - WHETHER PRIOR HABEAS CORPUS PROCEEDINGS BAR
THE LITIGATION OF ISSUES WHICH COULD NOT HAVE BEEN RAISED ON DIRECT
APPEAL FROM THE CONVICTION.  (FN3) 

THE FLORIDA SUPREME COURT HAS EXPRESSLY DISMISSED A NUMBER OF HABEAS
CORPUS PROCEEDINGS ON THE GROUND THAT FORMER HABEAS CORPUS
ADJUDICATIONS WERE RES JUDICATA.  BUT IN THOSE CASES THE HABEAS CORPUS
PETITIONS ATTEMPTED TO RELITIGATE ISSUES WHICH HAD BEEN EXPRESSLY
PRESENTED AND DECIDED IN THE PREVIOUS HABEAS CORPUS PROCEEDINGS.  SEE
MOAT V. MAYO, 82 SO. 2D 591; POPE V. MAYO, 39 SO. 2D 286; FLORIDA EX
REL. WILLIAMS V. PRESCOTT, 110 FLA. 261, 148 SO.  533. 

RES JUDICATA IS NOT A RIGID DOCTRINE IN FLORIDA.  THE SUPREME COURT
RECENTLY REFUSED TO APPLY IT WHERE TO DO SO WOULD "DEFEAT THE ENDS OF
JUSTICE."  UNIVERSAL CONST. CO. V. CITY OF FT. LAUDERDALE, 68 SO. 2D
366, 369.  (FN4)  ONCE THE FACTS ALLEGED BY PETITIONER ARE CONCEDED, AS
THEY MUST BE ON THE PRESENT RECORD, IT DEFEATS THE ENDS OF JUSTICE TO
DENY RELIEF HERE. 

THE LANGUAGE OF THE FLORIDA SUPREME COURT'S ORDER IN THE PRESENT CASE
INDICATES THAT PETITIONER'S FEDERAL CONSTITUTIONAL CLAIMS WERE REJECTED
NOT ON GROUNDS OF RES JUDICATA BUT ON THEIR MERITS.  THE PETITION WAS
DENIED BECAUSE OF FAILURE TO SHOW "PROBABLE CAUSE TO BELIEVE THAT
PETITIONER IS DETAINED IN CUSTODY WITHOUT LAWFUL AUTHORITY."  FACED
WITH A SIMILAR STATE COURT ORDER IN WILLIAMS V. KAISER, 323 U.S., AT
478, WE SAID:  "THE DENIAL OF THE PETITION ON THE GROUNDS THAT IT FAILS
TO STATE A CAUSE OF ACTION STRONGLY SUGGESTS THAT IT WAS DENIED BECAUSE
THERE WAS NO CAUSE OF ACTION BASED ON THE FEDERAL RIGHT."  WE SHOULD
HOLD THE SAME IN THE PRESENT CASE. 

ONCE WE REACH THE MERITS THE ANSWER SEEMS CLEAR.  IT IS WELL SETTLED
THAT TO OBTAIN A CONVICTION BY THE USE OF TESTIMONY KNOWN BY THE
PROSECUTION TO BE PERJURED OFFENDS DUE PROCESS.  MOONEY V. HOLOHAN, 294
U.S. 103; PYLE V. KANSAS, 317 U.S. 213.  WHILE THE PETITION DID NOT
ALLEGE THAT THE PROSECUTION KNEW THAT PETITIONER'S CODEFENDANTS WERE
LYING WHEN THEY IMPLICATED PETITIONER, THE STATE NOW KNOWS THAT THE
TESTIMONY OF THE ONLY WITNESSES AGAINST PETITIONER WAS FALSE.  NO
COMPETENT EVIDENCE REMAINS TO SUPPORT THE CONVICTION.  DEPRIVATION OF A
HEARING UNDER THESE CIRCUMSTANCES AMOUNTS IN MY OPINION TO A DENIAL OF
DUE PROCESS OF LAW. 

PERHAPS A HEARING ON THE CHARGES WOULD DISPEL THEM.  BUT ON THE
PRESENT RECORD, WE HAVE A GRAVE MISCARRIAGE OF JUSTICE INVOLVING AN
INVASION OF FEDERAL RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT. 

FN1  IN THE 1949 PETITION, PETITIONER ARGUED THAT THE TESTIMONY WAS
PERJURED, BUT HE DID NOT PRESENT THIS AS A FEDERAL QUESTION.  THE 1952
PETITION DID NOT MENTION THE PERJURED TESTIMONY ISSUE. 

FN2  THE FLORIDA SUPREME COURT STATED THE RATIONALE OF THESE
DECISIONS AS FOLLOWS:  "IT IS ELEMENTARY THAT A WRIT OF HABEAS CORPUS
CANNOT BE USED AS A SUBSTITUTE FOR APPEAL, MOTION TO QUASH OR A MOTION
IN ARREST OF JUDGMENT."  JOHNSON V. MAYO, 69 SO. 2D, AT 308. 

FN3  PETITIONER'S CLAIM OF A DENIAL OF FEDERAL RIGHTS BECAUSE HIS
CONVICTION IS BASED SOLELY ON PERJURED TESTIMONY OBVIOUSLY COULD NOT
HAVE BEEN RAISED ON DIRECT APPEAL.  HE DID NOT OBTAIN THE AFFIDAVITS
SHOWING THAT THE WITNESSES HAD LIED UNTIL LONG AFTER THE TIME TO APPEAL
HIS CONVICTION HAD EXPIRED. 

FN4  "THE BASIC PRINCIPLE UPON WHICH THE DOCTRINE OF RES JUDICATA
RESTS IS THAT THERE SHOULD BE AN END TO LITIGATION AND THAT 'IN THE
INTEREST OF THE STATE EVERY JUSTICIABLE CONTROVERSY SHOULD BE SETTLED
IN ONE ACTION IN ORDER THAT THE COURTS AND THE PARTIES WILL NOT BE
BOTHERED FOR THE SAME CAUSE BY INTERMINABLE LITIGATION.'  59 SO. 2D AT
PAGE 44.  NEVERTHELESS, WHEN A CHOICE MUST BE MADE WE APPREHEND THAT
THE STATE, AS WELL AS THE COURTS, IS MORE INTERESTED IN THE FAIR AND
PROPER ADMINISTRATION OF JUSTICE THAN IN RIGIDLY APPLYING A FICTION OF
THE LAW TO TERMINATE LITIGATION."  68 SO. 2D, AT 369. 
..END :









BLACK V. CUTTER LABORATORIES 351 U.S. 292. 


NO. 92.  ARGUED APRIL 26, 1956.  - DECIDED JUNE 4, 1956.  - WRIT OF
CERTIORARI DISMISSED. 


A CORPORATION MANUFACTURING PHARMACEUTICAL AND BIOLOGICAL PRODUCTS IN
CALIFORNIA DISCHARGED AN EMPLOYEE ON THE GROUNDS THAT SHE WAS AN ACTIVE
MEMBER OF THE COMMUNIST PARTY AND HAD FALSIFIED HER APPLICATION FOR
EMPLOYMENT.  HER UNION SOUGHT HER REINSTATEMENT BEFORE AN ARBITRATION
BOARD PURSUANT TO A VALID COLLECTIVE-BARGAINING AGREEMENT WHICH
AUTHORIZED DISCHARGE FOR "JUST CAUSE" ONLY.  FINDING THAT SHE WAS AN
ACTIVE MEMBER OF THE COMMUNIST PARTY AND HAD FALSIFIED HER APPLICATION
FOR EMPLOYMENT, BUT THAT THESE GROUNDS FOR DISCHARGE HAD BEEN WAIVED BY
THE EMPLOYER AND THAT SHE ACTUALLY WAS DISCHARGED FOR UNION ACTIVITIES,
THE BOARD ORDERED HER REINSTATEMENT.  THE LOWER CALIFORNIA COURTS
AFFIRMED THIS ORDER; BUT THE SUPREME COURT OF CALIFORNIA REVERSED. 
CERTIORARI WAS GRANTED BY THIS COURT ON A PETITION CONTENDING THAT THE
DECISION AND OPINION VIOLATED THE EQUAL PROTECTION AND DUE PROCESS
CLAUSES OF THE FOURTEENTH AMENDMENT.  UPON AN ANALYSIS OF THE RECORD,
HOWEVER, IT APPEARED THAT THE SUPREME COURT OF CALIFORNIA CONSTRUED THE
TERM "JUST CAUSE" TO EMBRACE MEMBERSHIP IN THE COMMUNIST PARTY AND
REFUSED TO APPLY A DOCTRINE OF WAIVER.  HELD:  THE DECISION INVOLVES
ONLY CALIFORNIA'S CONSTRUCTION OF A LOCAL CONTRACT UNDER LOCAL LAW; NO
SUBSTANTIAL FEDERAL QUESTION IS PRESENTED; AND THE WRIT OF CERTIORARI
IS DISMISSED.  PP. 293-300. 

(A)  THIS COURT REVIEWS JUDGMENT, NOT STATEMENTS IN OPINIONS; AND IT
WILL NOT PASS ON FEDERAL QUESTIONS DISCUSSED IN THE OPINION OF A STATE
COURT WHERE IT APPEARS THAT THE JUDGMENT RESTS ON ADEQUATE STATE
GROUNDS.  PP. 297-298. 

(B)  THE SCOPE OF REVIEW OF THE FINDINGS OF THE ARBITRATION BOARD
UNDER THE CALIFORNIA ARBITRATION ACT IS A MATTER EXCLUSIVELY FOR THE
COURTS OF THAT STATE.  P. 298. 

(C)  THE SUPREME COURT OF CALIFORNIA CONSTRUED THE TERM "JUST CAUSE"
TO EMBRACE MEMBERSHIP IN THE COMMUNIST PARTY AND REFUSED TO APPLY A
DOCTRINE OF WAIVER.  PP. 298-299. 

(D)  SUCH A DECISION INVOLVES ONLY CALIFORNIA'S CONSTRUCTION OF A
LOCAL CONTRACT UNDER LOCAL LAW, AND NO SUBSTANTIAL FEDERAL QUESTION IS
PRESENTED.  P. 299. 

BLACK ET AL. V. CUTTER LABORATORIES. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN 1949 MRS. DORIS WALKER WAS DISCHARGED FROM HER JOB AT CUTTER
LABORATORIES, A MANUFACTURER OF PHARMACEUTICAL AND BIOLOGICAL PRODUCTS,
ON THE CLAIMED GROUNDS THAT SHE WAS AN ACTIVE MEMBER OF THE COMMUNIST
PARTY AND HAD FALSIFIED HER APPLICATION FOR EMPLOYMENT THERE.  (FN1)
PETITIONER, BIO-LAB UNION OF LOCAL 225, UNITED OFFICE & PROFESSIONAL
WORKERS OF AMERICA, SOUGHT REINSTATEMENT FOR MRS. WALKER BEFORE AN
ARBITRATION BOARD PURSUANT TO A VALID COLLECTIVE-BARGAINING AGREEMENT
WHICH AUTHORIZED DISCHARGE FOR "JUST CAUSE" ONLY.  THE BOARD DETERMINED
THAT SHE HAD BEEN DISCHARGED FOR UNION ACTIVITY AND, BY A VOTE OF 2 TO
1, ORDERED HER REINSTATEMENT.  THE SUPERIOR COURT OF SAN FRANCISCO
COUNTY CONFIRMED THE AWARD AND ORDERED IT ENFORCED.  ON APPEAL, THE
DISTRICT COURT OF APPEAL AFFIRMED.  THE SUPREME COURT OF CALIFORNIA,
HOWEVER, REVERSED.  43 CAL. 2D 788, 278 P.2D 905.   PETITIONERS CONTEND
THAT THE DECISION AND OPINION BELOW VIOLATE CONSTITUTIONAL PRINCIPLES
EMBRACED IN THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE
FOURTEENTH AMENDMENT.  WE GRANTED CERTIORARI, 350 U.S. 816. 

BEFORE MRS. WALKER APPLIED FOR A JOB AT THE CUTTER PLANT, SHE HAD
GRADUATED FROM LAW SCHOOL, WORKED FOR THREE YEARS AS AN ATTORNEY FOR
THE OFFICE OF PRICE ADMINISTRATION AND IN PRIVATE PRACTICE, AND HAD
BEEN DISCHARGED FOR UNION ACTIVITY FROM JOBS IN THREE DIFFERENT
CANNERIES.  ALL OF THESE FACTS, SHE READILY ADMITTED TO THE BOARD, WERE
CONCEALED OR MISREPRESENTED BY HER IN THE CUTTER EMPLOYMENT APPLICATION
IN 1946.  IN ADDITION, SHE ADMITTED THAT SHE HAD FALSELY STATED THAT
SHE HAD BEEN EMPLOYED AS A FILE CLERK IN 1939 BY ONE JOHN TRIPPE,
ATTORNEY.  SHE TOLD THE BOARD THAT NO SUCH PERSON OR EMPLOYMENT HAD
EXISTED.  THE CHARACTER REFERENCES SHE LISTED HAD BEEN WARNED BY HER OF
THE OMISSIONS AND FALSIFICATIONS IN HER APPLICATION AND AT HER REQUEST
THEY DID NOT DISCLOSE HER TRUE BACKGROUND TO CUTTER.  THESE
FALSIFICATIONS AND OMISSIONS WERE NOT DISCOVERED UNTIL AFTER SHE HAD
BEEN EMPLOYED AS A LABEL CLERK BY THE CUTTER PLANT AND THE
"PROBATIONARY PERIOD" HAD EXPIRED. 

THE ARBITRATION BOARD FOUND THAT MRS. WALKER HAD PLAYED AN ACTIVE
ROLE IN UNION ACTIVITIES AT THE CUTTER PLANT.  IN 1947 SHE BECAME A
SHOP CHAIRMAN AND A MEMBER OF THE EXECUTIVE BOARD OF THE LOCAL.  THE
FOLLOWING YEAR SHE WAS ELECTED CHIEF SHOP STEWARD, AND HER ACTIVITIES
WERE EXTENDED TO ALL MANUFACTURING DEPARTMENTS OF THE LABORATORY.  SHE
BECAME PRESIDENT OF THE LOCAL IN THE SPRING OF 1949, AND WAS HOLDING
THAT OFFICE AT THE TIME OF HER DISCHARGE.  THE BOARD ALSO FOUND THAT
MRS. WALKER WAS A MEMBER OF THE COMMUNIST PARTY DURING THE PERIOD OF
HER EMPLOYMENT.  CUTTER HAD INVESTIGATED HER IN 1947 AND 1949 AND HAD
DISCOVERED EVIDENCE OF COMMUNIST PARTY MEMBERSHIP AND ALSO THAT SHE HAD
FALSIFIED HER EMPLOYMENT APPLICATION.  THE BOARD'S FINDING OF COMMUNIST
PARTY MEMBERSHIP WAS BASED ON EVIDENCE UNCOVERED IN THE CUTTER
INVESTIGATIONS PLUS MRS. WALKER'S REFUSAL TO ANSWER QUESTIONS RELATING
TO MEMBERSHIP AND THE UNION'S OFFER TO STIPULATE THAT THE COMPANY COULD
REASONABLY HAVE CONCLUDED THAT SHE WAS A COMMUNIST.  (FN2) 

THE BOARD TOOK THE "VIEW OF THE RECORD" THAT CUTTER HONESTLY BELIEVED
THAT MRS. WALKER HAD FALSIFIED HER APPLICATION AND WAS A MEMBER OF THE
PARTY.  BUT IT HELD THAT, "WHILE AN EMPLOYER MAY HAVE SUFFICIENT
GROUNDS FOR A DISCHARGE," HE "SHOULD NOT BE ENTITLED TO CARRY MUTUALLY
KNOWN GROUNDS FOR DISCHARGE IN HIS HIP POCKET INDEFINITELY FOR FUTURE
CONVENIENT USE."  IT FOUND CUTTER'S GROUNDS TO BE "STALE" AND CONCLUDED
THAT MRS. WALKER WAS UNJUSTLY DISCHARGED AND THAT THIS ACTION OF CUTTER
"INTERFERED WITH, RESTRAINED AND COERCED AN EMPLOYEE BECAUSE OF
PARTICIPATION AS AN OFFICER AND NEGOTIATOR ON BEHALF OF THE UNION IN A
WAGE NEGOTIATION." 

THE MAJORITY OPINION OF THE SUPREME COURT OF CALIFORNIA CONTAINS
BROAD STATEMENTS TO THE EFFECT THAT SPECIFIC PERFORMANCE OF THE
ARBITRATION AWARD WOULD VIOLATE THE PUBLIC POLICY OF THE STATE. 
PETITIONER'S CONSTITUTIONAL ARGUMENTS ARE BASED ON THE BELIEF THAT
THESE STATEMENTS ESTABLISH THE GROUND ON WHICH THE JUDGMENT BELOW WAS
BASED, AND THAT THEREFORE THE DECISION BELOW NOT ONLY ESTABLISHES A
CONCLUSIVE PRESUMPTION OF ADVOCACY OF VIOLENCE FROM THE MERE FACT OF
MEMBERSHIP IN THE COMMUNIST PARTY, BUT RENDERS UNENFORCEABLE
SUBSTANTIALLY ALL CONTRACTS ENTERED INTO BY MEMBERS OF THE PARTY. 

THIS COURT, HOWEVER, REVIEWS JUDGMENTS, NOT STATEMENTS IN OPINIONS. 
HERB V. PITCAIRN, 324 U.S. 117, 125-126; MORRISON V. WATSON, 154 U.S.
111, 115.  SEE ALSO WILLIAMS V. NORRIS, 12 WHEAT.  117, 118, 120.  AT
TIMES, THE ATMOSPHERE IN WHICH AN OPINION IS WRITTEN MAY BECOME SO
SURCHARGED THAT UNNECESSARILY BROAD STATEMENTS ARE MADE.  IN SUCH A
CASE, IT IS OUR DUTY TO LOOK BEYOND THE BROAD SWEEP OF THE LANGUAGE AND
DETERMINE FOR OURSELVES PRECISELY THE GROUND ON WHICH THE JUDGMENT
RESTS.  THIS MEANS NO MORE THAN THAT WE SHOULD NOT PASS ON FEDERAL
QUESTIONS DISCUSSED IN THE OPINION WHERE IT APPEARS THAT THE JUDGMENT
RESTS ON ADEQUATE STATE GROUNDS.  HERB V. PITCAIRN, SUPRA; WILLIAMS V.
KAISER, 323 U.S. 471, 477. 

IT IS SIGNIFICANT THAT THE SUPREME COURT OF CALIFORNIA DID NOT LIMIT
ITSELF TO A DISCUSSION OF THE APPLICATION OF THE CALIFORNIA PUBLIC
POLICY.  IT ALSO SUBJECTED THE FINDINGS OF THE ARBITRATION BOARD TO A
SCRUTINIZING REVIEW.  OF COURSE, THE SCOPE OF REVIEW OF SUCH FINDINGS
UNDER THE CALIFORNIA ARBITRATION ACT IS A MATTER EXCLUSIVELY FOR THE
COURTS OF THAT STATE, AND IS NOT OUR CONCERN.  ALLEN-BRADLEY LOCAL V.
LABOR BOARD, 315 U.S. 740, 747. 

FIRST, THE COURT DETERMINED THAT, SINCE MRS. WALKER WAS A CONTINUING
MEMBER OF THE COMMUNIST PARTY, THE DOCTRINE OF WAIVER COULD NOT BE
APPLIED TO THIS GROUND FOR DISCHARGE.  THE COURT NOTED THAT MRS. WALKER
HAD REMAINED A MEMBER OF THE PARTY "ON AN ACTIVE AND DEVOTED BASIS EVEN
AT THE TIME OF THE BOARD HEARINGS."  (FN3)  43 CAL. 2D, AT 807, 278
P.2D, AT 916. 

SECOND, IT IS CLEAR THAT THE INDIVIDUAL PARTIES MIGHT HAVE AGREED
THAT THE CIRCUMSTANCES OF COMMUNIST PARTY MEMBERSHIP WOULD CONSTITUTE
"JUST CAUSE" UNDER THE CONTRACT, AND NO FEDERAL QUESTION WOULD THEREBY
BE RAISED.  IT IS IMPLICIT IN THE ARBITRATION BOARD'S OPINION THAT THIS
WAS A REASONABLE CONSTRUCTION OF THE CONTRACT, BUT SINCE IT APPLIED A
DOCTRINE OF WAIVER, NO EXPLICIT FINDINGS ON THIS POINT WERE MADE.  BUT,
AS WE READ THE OPINION OF THE SUPREME COURT OF CALIFORNIA, AFTER
CONCLUDING THAT WAIVER COULD NOT BE APPLIED TO THE FACTS OF THIS CASE,
IT DECIDED THAT THE "JUST CAUSE" PROVISION OF THE CONTRACT PERMITTED
DISCHARGE ON THE GROUND OF COMMUNIST PARTY MEMBERSHIP, AND THAT MRS.
WALKER WAS DISCHARGED ON THAT GROUND.  THE COURT STATED, "THE CONTRACT
BETWEEN CUTTER LABORATORIES AND THE BIO-LAB UNION CANNOT BE CONSTRUED,
AND WILL NOT BE ENFORCED, TO PROTECT ACTIVITIES BY A COMMUNIST ON
BEHALF OF HER PARTY WHETHER IN THE GUISE OF UNIONISM OR OTHERWISE."  43
CAL. 2D, AT 809, 278 P.2D, AT 917.  AT ANOTHER POINT, THE COURT NOTED
THAT "AN ENTIRELY ADEQUATE GROUND (PARTY MEMBERSHIP) FOR REFUSING TO
EMPLOY HER (WHETHER BY ORIGINAL REFUSAL TO HIRE OR BY DISCHARGE) WAS A
CONTINUING ONE WHICH WAS AVAILABLE TO THE EMPLOYER AT ANY TIME DURING
ITS EXISTENCE."  43 CAL. 2D, AT 807, 278 P.2D, AT 916.  IN THIS
CONNECTION, IT MIGHT ALSO BE NOTED THAT THE COURT BELOW DISCUSSED THE
HISTORY OF THE CLAUSE IN THE CONTRACT WHICH PROHIBITED DISCRIMINATION
"BECAUSE OF RACE, COLOR, CREED, NATIONAL ORIGIN, RELIGIOUS BELIEF, OR
UNION AFFILIATION."  AT ONE TIME THE WORD "POLITICAL" AS WELL AS
"RELIGIOUS BELIEF" WAS INCLUDED IN THE PROVISION, BUT, BY NEGOTIATION,
IT WAS DELETED. 

WE BELIEVE THAT THE SUPREME COURT OF CALIFORNIA CONSTRUED THE TERM
"JUST CAUSE" TO EMBRACE MEMBERSHIP IN THE COMMUNIST PARTY, AND REFUSED
TO APPLY A DOCTRINE OF WAIVER.  AS SUCH, THE DECISION INVOLVES ONLY
CALIFORNIA'S CONSTRUCTION OF A LOCAL CONTRACT UNDER LOCAL LAW, AND
THEREFORE NO SUBSTANTIAL FEDERAL QUESTION IS PRESENTED.  MOREOVER, EVEN
IF THE STATE COURT'S OPINION BE CONSIDERED AMBIGUOUS, WE SHOULD CHOOSE
THE INTERPRETATION WHICH DOES NOT FACE US WITH A CONSTITUTIONAL
QUESTION.  SEE STEMBRIDGE V. GEORGIA, 343 U.S. 541, 547, AND CASES
CITED.  CF. UNITED STATES V. RUMELY, 345 U.S. 41.  IT FOLLOWS THAT THE
WRIT MUST BE DISMISSED. 

FN1  AT THE TIME OF DISCHARGE A WRITTEN NOTICE WAS READ TO MRS.
WALKER BY A COMPANY OFFICIAL IN THE PRESENCE OF ANOTHER COMPANY
OFFICIAL, AN ASSISTANT SHOP STEWARD OF THE UNION AND A COMPANY
STENOGRAPHER.  THE NOTICE READ AS FOLLOWS: 

"MRS. WALKER: 

"AS YOU ARE AWARE, THE COMPANY HAS KNOWN FOR SOME TIME THAT WHEN YOU
APPLIED FOR WORK WITH CUTTER LABORATORIES ON OCTOBER 4, 1946, YOU MADE
A NUMBER OF FALSE REPRESENTATIONS ON YOUR 'APPLICATION FOR
EMPLOYMENT.' 

"AS WE KNOW NOW, YOU FALSIFIED THE STATEMENT OF YOUR EDUCATION SO AS
TO CONCEAL THE FACT THAT YOU HAD COMPLETED A LAW SCHOOL COURSE AT THE
UNIVERSITY OF CALIFORNIA'S SCHOOL OF JURISPRUDENCE AT BERKELEY IN MAY,
1942.  YOU CONCEALED THE FACTS THAT YOU RECEIVED THE DEGREE OF BACHELOR
OF LAWS IN MAY, 1942, AND THAT YOU WERE ADMITTED TO THE STATE BAR OF
CALIFORNIA ON DECEMBER 8, 1942.  YOU CONCEALED THAT SINCE THAT DATE YOU
HAVE AT ALL TIMES BEEN ADMITTED AND ENTITLED TO PRACTICE AS AN ATTORNEY
BEFORE ALL OF THE COURTS OF CALIFORNIA. 

"WE KNOW NOW THAT BY FALSIFICATION OF THE NAME OF A PREVIOUS
EMPLOYER, YOU CONCEALED THE FACT THAT FROM JUNE, 1942 TO FEBRUARY, 1944
YOU WERE EMPLOYED BY THE FEDERAL GOVERNMENT'S OFFICE OF PRICE
ADMINISTRATION, INCLUDING EMPLOYMENT AS AN ENFORCEMENT ATTORNEY AT A
SALARY OF ABOUT $3,200.00 A YEAR. 

"WE KNOW NOW THAT YOU DELIBERATELY CONCEALED FROM US THAT FROM
FEBRUARY 1944 TO DECEMBER, 1945 YOU WERE EMPLOYED AS AN ATTORNEY BY
GLADSTEIN, GROSSMAN, SAWYER AND EDISES, A WELL-KNOWN FIRM OF LAWYERS
SPECIALIZING IN LABOR CASES. 

"YOU KNOW THAT A FEW WEEKS AGO THE 'LABOR HERALD,' THE OFFICIAL CIO
NEWSPAPER, STATED THAT THE NATIONAL LABOR RELATIONS BOARD HAD SUSTAINED
A CANNERY FIRM THAT HAD DISCHARGED YOU FOR REFUSING TO ANSWER WHETHER
OR NOT YOU WERE A COMMUNIST. 

"WE HAVE CHECKED THE RECORDS.  WE KNOW NOW THAT YOU DELIBERATELY
CONCEALED THAT IN 1946, JUST BEFORE YOU APPLIED FOR WORK HERE, YOU WERE
EMPLOYED BY A SERIES OF CANNERIES AND HAD BEEN DISCHARGED BY THEM. 

"ORDINARILY, AN EMPLOYEE OF THE COMPANY WOULD BE DISCHARGED
IMMEDIATELY FOR FALSIFYING MATERIAL FACTS ON AN 'APPLICATION FOR
EMPLOYMENT.'  BECAUSE YOU WERE AN OFFICER OF THE UNION WE KEPT YOU ON
THE PAY ROLL RATHER THAN OPEN OURSELVES TO A CHARGE OF PERSECUTING A
UNION OFFICER.  WE HAVE GIVEN YOUR CASE CAREFUL CONSIDERATION BECAUSE
WE KNOW VERY WELL THAT NO MATTER HOW STRONG THE CASE AGAINST YOU THERE
WILL BE A CLAIM OF DISCRIMINATION BECAUSE OF UNION ACTIVITIES. 

"BECAUSE NO EMPLOYER WANTS TO BECOME INVOLVED IN A DISPUTE OF THAT
KIND WE HAVE BEEN PATIENT AND DELIBERATE IN OUR CONSIDERATION OF YOUR
MISCONDUCT. 

"ON OCTOBER 1, 1948, WHEN YOU TESTIFIED UNDER OATH BEFORE A TRIAL
EXAMINER OF THE NATIONAL LABOR RELATIONS BOARD, YOU REFUSED TO ANSWER
THE QUESTION AS TO WHETHER OR NOT YOU WERE A MEMBER OF THE COMMUNIST
PARTY. 

"YOU REFUSED TO ANSWER UNDER OATH THE QUESTION AS TO WHETHER OR NOT
YOU WERE OR HAD BEEN A MEMBER OF THE FEDERAL WORKERS' BRANCH NO. 3 OF
THE COMMUNIST PARTY. 

"YOU REFUSED TO TESTIFY UNDER OATH WHETHER OR NOT YOU WERE OR HAD
BEEN A MEMBER OF THE SOUTH SIDE PROFESSIONAL CLUB OF THE COMMUNIST
PARTY. 

"WE ARE CONVINCED NOW, THAT YOU WERE AND STILL ARE A MEMBER OF THE
COMMUNIST PARTY, THAT YOU WERE A MEMBER OF THE FEDERAL WORKERS' BRANCH
NO. 3 OF THE COMMUNIST PARTY, AND THAT YOU WERE A MEMBER OF THE SOUTH
SIDE PROFESSIONAL CLUB OF THE COMMUNIST PARTY. 

"OUR RECENT INVESTIGATION OF YOUR PAST RECORD HAS UNCOVERED
PREVIOUSLY UNKNOWN CONDUCT THAT GOES FAR BEYOND A MERE CONCEALMENT OF
MATERIAL FACTS.  WE HAVE JUST COMPLETED A THOROUGH INVESTIGATION AND
HAVE A FULL REPORT UPON YOUR PAST ACTIVITIES.  WE REALIZE NOW THE
IMPORTANCE OF THE FACTS THAT YOU CONCEALED FROM US.  WE REALIZE THE
FULL IMPLICATION OF YOUR FALSIFICATION AND MISREPRESENTATIONS.  A
FOLLOW-UP AND INVESTIGATION OF THE 'LABOR HERALDS' RECENT REVELATIONS
HAS UNCOVERED A SITUATION FAR MORE GRAVE THAN WE EXPECTED. 

"WE ARE CONVINCED NOW THAT FOR A NUMBER OF YEARS, YOU HAVE BEEN AND
STILL ARE A MEMBER OF THE COMMUNIST PARTY.  WE ARE CONVINCED BEYOND ANY
QUESTION THAT FOR A NUMBER OF YEARS YOU HAVE PARTICIPATED ACTIVELY IN
THE COMMUNIST PARTY'S ACTIVITIES. 

"THE NATURE OF OUR COMPANY'S BUSINESS REQUIRES MORE THAN THE USUAL
PRECAUTION AGAINST SABOTAGE AND SUBVERSION.  UPON A DISCLOSURE THAT ANY
EMPLOYEE IS A MEMBER OF THE COMMUNIST PARTY, OR HAS PARTICIPATED IN
OTHER SUBVERSIVE OR REVOLUTIONARY ACTIVITY, WE CONCEIVE IT TO BE THE
RESPONSIBILITY OF MANGEMENT TO TAKE ACTION. 

"CONFRONTED WITH SUCH A SITUATION, ANY INCLINATION TO BE LENIENT OR
TO GRANT A UNION OFFICIAL SPECIAL CONSIDERATION IS OUT.  IN THE FACE OF
YOUR RECORD THERE IS NO ALTERNATIVE OPEN TO US EXCEPT TO TERMINATE YOUR
SERVICES AT ONCE.  ACCORDINGLY, YOU ARE NOTIFIED NOW THAT YOU ARE
DISCHARGED FOR THE CAUSES MENTIONED.  YOU WILL BE PAID THE FULL AMOUNT
DUE TO YOU PROMPTLY."    FN2  SINCE THE BOARD WAS AUTHORIZED TO INQURE
INTO THE REASONS FOR HER DISCHARGE AND THE QUESTIONS WERE, AS IT RULED,
RELEVANT TO THE ISSUE, IT COULD DRAW SUCH INFERENCES AS WERE
WARRANTED.  IN THIS RESPECT THE CASE IS UNLIKE SLOCHOWER V. BOARD OF
EDUCATION, 350 U.S. 551. 

FN3  WHILE THE COURT ALSO SPOKE OF ITS PUBLIC POLICY IN REACHING THIS
CONCLUSION, ITS REASONING OUTLINED ABOVE AMPLY SUPPORTS ITS
CONCLUSION. 

MR. JUSTICE REED WOULD AFFIRM THE JUDGMENT BELOW. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING.    I BELIEVE, WITH ALL DEFERENCE, THAT THE
DECISION OF THE COURT ABUSES THE RULE THAT WE WILL NOT UNDERTAKE TO
REVIEW A DECISION OF A STATE COURT THAT RESTS ON AN INDEPENDENT STATE
GROUND.  NO INDPEENDENT STATE GROUND IS PRESENT IN THIS CASE.  RATHER,
IT IS EASILY DEMONSTRATED, I THINK, THAT THE DECISION OF THE SUPREME
COURT OF CALIFORNIA SQUARELY AND DIRECTLY RAISES AN IMPORTANT QUESTION
UNDER THE FIRST AND FOURTEENTH AMENDMENTS. 

AT TIMES WE HAVE AMBIGUOUS OPINIONS THAT MAKE US UNSURE OF THE
PRECISE GROUNDS OF THE DECISION OF THE STATE COURT.  IN THIS CASE,
HOWEVER, WE ARE LEFT IN NO DOUBT.  THE ARBITRATORS FOUND THAT THE
EMPLOYER DISCHARGED THIS WORKER BECAUSE OF HER LABOR UNION ACTIVITIES,
USING THE CHARGE OF COMMUNISM AS A MERE PRETEXT.  THE SUPREME COURT OF
CALIFORNIA WENT ON NO SUCH GROUND.  IT IS CLEAR FROM A READING OF ITS
OPINION (43 CAL. 2D 788, 278 P.2D 905), THAT IT APPROVED THE EMPLOYER'S
DISCHARGE OF THIS WORKER BECAUSE SHE WAS A COMMUNIST.  THE TACTICS OF
COMMUNISTS AND THE DANGERS OF COMMUNISM MAKE UP A TOTAL OF 11 PAGES OF
THE 21-PAGE MAJORITY OPINION OF THE SUPREME COURT.  AMONG OTHER THINGS,
THE SUPREME COURT OF CALIFORNIA SAID: 

"FROM THE ARRAY OF CONGRESSIONAL AND LEGISLATIVE FINDINGS WHICH HAVE
BEEN QUOTED ABOVE, IF NOT FROM THE COMMON KNOWLEDGE OF MANKIND, IT MUST
BE ACCEPTED AS CONCLUSIVELY ESTABLISHED THAT A MEMBER OF THE COMMUNIST
PARTY CANNOT BE LOYAL TO HIS PRIVATE EMPLOYER AS AGAINST ANY DIRECTIVE
OF HIS COMMUNIST MASTER."  43 CAL. 2D, AT 806, 278 P.2D, AT 916.  IT
WENT ON TO HOLD THAT "ACTS OF SABOTAGE BY COMMUNISTS ARE REASONABLY TO
BE EXPECTED AT ANY TIME SUCH ACTS MAY BE DIRECTED BY THE PARTY LEADER"
(43 CAL. 2D, AT 807, 278 P.2D, AT 916) AND THAT AN EMPLOYER HAS THE
"RIGHT TO DISCHARGE EMPLOYEES WHO UPON THE ESTABLISHED FACTS ARE
DEDICATED TO BE DISLOYAL TO HIM, TO BE LIKEWISE DISLOYAL TO THE
AMERICAN LABOR UNION THEY MAY PURPORT TO SERVE, AND WHO CONSTITUTE A
CONTINUING RISK TO BOTH THE EMPLOYING COMPANY AND THE PUBLIC DEPENDING
UPON THE COMPANY'S PRODUCTS."  43 CAL. 2D, AT 807, 278 P.2D, AT 917. 

THE ARBITRATORS FOUND THAT ANY GRIEVANCE AGAINST DORIS WALKER WAS A
STALE ONE, THE EMPLOYER HAVING KNOWN ALL HER COMMUNIST ACTIVITIES FOR
TWO YEARS.  THE SUPERIOR COURT UPHELD THAT FINDING.  THE DISTRICT COURT
OF APPEAL RULED THAT THE EMPLOYER "SAT BACK FOR TWO AND A HALF YEARS"
AND THEN USED HER COMMUNIST ACTIVITIES AS AN EXCUSE FOR INJURING THE
UNION IN ITS LAWFUL LABOR ACTIVITY.  266 P.2D 92, 100.  BUT THE SUPREME
COURT HELD THAT SHE WAS DISCHARGED NOT FOR HER "LABOR UNION ACTIVITIES"
BUT FOR HER "COMMUNIST PARTY ACTIVITIES."  43 CAL. 2D, AT 808, 278
P.2D, AT 917.  IT SAID THAT THE FACT THAT THE EMPLOYER, KNOWING ALL THE
FACTS, DID NOTHING FOR TWO YEARS WAS IRRELEVANT, SINCE IT WAS AGAINST
THE "PUBLIC POLICY" OF CALIFORNIA TO CONCLUDE THAT THERE WAS A WAIVER
BY THE FAILURE TO DISCHARGE A COMMUNIST.  43 CAL. 2D, AT 806, 278 P.2D,
AT 916.  IT IS PLAIN, THEREFORE, THAT THE JUDGMENT OF THE SUPREME COURT
OF CALIFORNIA SUSTAINS A DISCHARGE OF THIS WORKER BECAUSE SHE WAS A
COMMUNIST. 

THE COURT SAYS THAT THE PARTIES TO A COLLECTIVE-BARGAINING AGREEMENT
MAY MAKE COMMUNIST PARTY MEMBERSHIP "JUST CAUSE" FOR DISCHARGE OF AN
EMPLOYEE, THAT DISCHARGE FOR THAT REASON IS MERELY A MATTER OF CONTRACT
BETWEEN THE UNION ON THE ONE HAND AND THE EMPLOYER ON THE OTHER, AND
THAT WHEN THE CONTRACT IS ENFORCED NO FEDERAL RIGHT IS INFRINGED.  I
DISAGREE WITH THAT DOCTRINE.  IT IS A DANGEROUS INNOVATION TO MEET THE
EXIGENCIES OF THE PRESENT CASE.  IT VIOLATES FIRST AMENDMENT GUARANTEES
OF CITIZENS WHO ARE WORKERS IN OUR INDUSTRIAL PLANTS. 

I CAN BETTER ILLUSTRATE MY DIFFICULTY BY A HYPOTHETICAL CASE.  A
UNION ENTERS INTO A COLLECTIVE-BARGAINING AGREEMENT WITH AN EMPLOYER
THAT ALLOWS ANY EMPLOYEE WHO IS A REPUBLICAN TO BE DISCHARGED FOR "JUST
CAUSE."  EMPLOYERS CAN, OF COURSE, HIRE WHOM THEY CHOOSE, ARRANGING FOR
AN ALL-DEMOCRATIC LABOR FORCE IF THEY DESIRE.*  BUT THE COURTS MAY NOT
BE IMPLICATED IN SUCH A DISCRIMINATORY SCHEME.  ONCE THE COURTS PUT
THEIR IMPRIMATUR ON SUCH A CONTRACT, GOVERNMENT, SPEAKING THROUGH THE
JUDICIAL BRANCH, ACTS.  SHELLEY V. KRAEMER, 334 U.S. 1; BARROWS V.
JACKSON, 346 U.S. 249.  AND IT IS GOVERNMENTAL ACTION THAT THE
CONSTITUTION CONTROLS.  CERTAINLY NEITHER A STATE NOR THE FEDERAL
GOVERNMENT COULD ADOPT A POLITICAL TEST FOR WORKERS IN DEFENSE PLANTS
OR OTHER FACTORIES.  IT IS ELEMENTARY THAT FREEDOM OF POLITICAL THOUGHT
IS PROTECTED BY THE FOURTEENTH AMENDMENT AGAINST INTERFERENCE BY THE
STATES (DE JONGE V. OREGON, 299 U.S. 353, 364-365) AND AGAINST FEDERAL
REGIMENTATION BY THE FIRST AMENDMENT. 

*A UNION HAS NO SUCH LIBERTY IF IT OPERATES WITH THE SANCTION OF THE
STATE OR THE FEDERAL GOVERNMENT BEHIND IT.  IT IS THEN THE AGENCY BY
WHICH GOVERNMENTAL POLICY IS EXPRESSED AND MAY NOT MAKE DISCRIMINATIONS
THAT THE GOVERNMENT MAY NOT MAKE.  SEE STEELE V. LOUISVILLE & N.R. CO.,
323 U.S. 192; TUNSTALL V. BROTHERHOOD, 323 U.S. 210; RAILROAD TRAINMEN
V. HOWARD, 343 U.S. 768; FORD MOTOR CO. V. HUFFMAN, 345 U.S. 330, 337;
SYRES V. OIL WORKERS UNION, 350 U.S. 892, REVERSING 223 F.2D 739;
RAILWAY EMPLOYES' DEPT. V. HANSON, 351 U.S. 225. 

GOVERNMENT MAY NOT FAVOR ONE POLITICAL GROUP OVER ANOTHER. 
GOVERNMENT MAY NOT DISQUALIFY ONE POLITICAL GROUP FROM EMPLOYMENT.  AND
IF THE COURTS LEND THEIR SUPPORT TO ANY SUCH DISCRIMINATORY PROGRAM,
SHELLEY V. KRAEMER, SUPRA, TEACHES THAT THE GOVERNMENT HAS THROWN ITS
WEIGHT BEHIND AN UNCONSTITUTIONAL SCHEME TO DISCRIMINATE AGAINST
CITIZENS BY REASON OF THEIR POLITICAL IDEOLOGY.  THAT CANNOT BE DONE IN
AMERICA, UNLESS WE FORSAKE OUR BILL OF RIGHTS. 

IT HAS HITHERTO BEEN ASSUMED THAT COMMUNISTS, EXCEPT AND UNLESS THEY
VIOLATE LAWS, ARE ENTITLED TO THE SAME CIVIL RIGHTS AS OTHER CITIZENS. 
IN 1937, CHIEF JUSTICE HUGHES WROTE TO THAT EFFECT FOR A UNANIMOUS
COURT IN DE JONGE V. OREGON, SUPRA.  THAT DECISION HELD THAT A STATE
COULD NOT PUNISH COMMUNISTS FOR HAVING A PUBLIC MEETING TO DISCUSS A
MATTER OF PUBLIC CONCERN.  CHIEF JUSTICE HUGHES SAID THAT FIRST
AMENDMENT RIGHTS MIGHT BE ABUSED "TO INCITE TO VIOLENCE AND CRIME." 
299 U.S., AT 364.  BUT HE WENT ON TO SAY, 'THE PEOPLE THROUGH THEIR
LEGISLATURES MAY PROTECT THEMSELVES AGAINST THAT ABUSE.  BUT THE
LEGISLATIVE INTERVENTION CAN FIND CONSTITUTIONAL JUSTIFICATION ONLY BY
DEALING WITH THE ABUSE.  THE RIGHTS THEMSELVES MUST NOT BE CURTAILED. 
THE GREATER THE IMPORTANCE OF SAFEGUARDING THE COMMUNITY FROM
INCITEMENTS TO THE OVERTHROW OF OUR INSTITUTIONS BY FORCE AND VIOLENCE,
THE MORE IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE THE
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN
ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE
END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND
THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN
LIES THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF
CONSTITUTIONAL GOVERNMENT."  ID., AT 364-365. 

CUTTER LABORATORIES IS AN IMPORTANT PHARMACEUTICAL FACTORY.  IT MAY
NEED SPECIAL PROTECTION.  IT MAY NEED TO ESTABLISH SAFEGUARDS AGAINST
SABOTAGE AND ADULTERATION.  IT MAY NEED SPECIAL SCREENING OF ITS
EMPLOYEES.  BUT THERE IS NOT A WORD IN THE PRESENT RECORD INDICATING
THAT IT NEEDS PROTECTION AGAINST DORIS WALKER.  SHE HAS NO CRIMINAL
RECORD.  SHE IS GUILTY OF NO ADULTERATION, NO ACT OF SABOTAGE.  THE
FACTORY IN QUESTION HAS NOT BEEN PLAGUED WITH ANY SUCH PROBLEM.  IT IS
ONLY THE FEAR THAT DORIS WALKER MIGHT AT A FUTURE TIME ENGAGE IN
SABOTAGE THAT IS MADE THE EXCUSE FOR HER DISCHARGE.  I DO NOT THINK WE
CAN HOLD CONSISTENTLY WITH OUR BILL OF RIGHTS THAT COMMUNISTS CAN BE
PROSCRIBED FROM MAKING A LIVING ON THE ASSUMPTION THAT WHEREVER THEY
WORK THE INCIDENCE OF SABOTAGE RISES OR THAT THE DANGER FROM COMMUNIST
EMPLOYEES IS TOO GREAT FOR CRITICAL INDUSTRY TO BEAR. 

THE BLUNT TRUTH IS THAT DORIS WALKER IS NOT DISCHARGED FOR MISCONDUCT
BUT EITHER BECAUSE OF HER LEGITIMATE LABOR UNION ACTIVITIES OR BECAUSE
OF HER POLITICAL IDEOLOGY OR BELIEF.  BELIEF CANNOT BE PENALIZED
CONSISTENTLY WITH THE FIRST AMENDMENT.  AS MR. JUSTICE ROBERTS WROTE
FOR A UNANIMOUS COURT IN CANTWELL V. CONNECTICUT, 310 U.S. 296, 303
304, THE FIRST AMENDMENT "EMBRACES TWO CONCEPTS, - FREEDOM TO BELIEVE
AND FREEDOM TO ACT.  THE FIRST IS ABSOLUTE BUT, IN THE NATURE OF
THINGS, THE SECOND CANNOT BE.  CONDUCT REMAINS SUBJECT TO REGULATION
FOR THE PROTECTION OF SOCIETY."  THE COURT TODAY ALLOWS BELIEF, NOT
CONDUCT, TO BE REGULATED.  WE SANCTION A FLAGRANT VIOLATION OF THE
FIRST AMENDMENT WHEN WE ALLOW CALIFORNIA, ACTING THROUGH HER HIGHEST
COURT, TO SUSTAIN MRS. WALKER'S DISCHARGE BECAUSE OF HER BELIEF. 
..END :
















COMMISSIONER OF INTERNAL REVENUE V. LOBUE 351 U.S. 243 


NO. 373.  ARGUED MARCH 6, 1956.  - DECIDED MAY 28, 1956.  - 223 F.2D
367, REVERSED AND REMANDED. 


IN RECOGNITION OF HIS "CONTRIBUTION AND EFFORTS IN MAKING THE
OPERATION OF THE COMPANY SUCCESSFUL," A CORPORATION GAVE AN EMPLOYEE
OPTIONS TO PURCHASE STOCK IN THE CORPORATION.  THE OPTIONS WERE
NONTRANSFERABLE AND WERE CONTINGENT UPON CONTINUED EMPLOYMENT.  AFTER
SOME TIME HAD ELAPSED AND THE VALUE OF THE SHARES HAD INCREASED, THE
EMPLOYEE EXERCISED THE OPTIONS AND PURCHASED THE STOCK AT LESS THAN THE
THEN CURRENT MARKET PRICE.  FOR SOME OF THE SHARES, HE GAVE THE
EMPLOYER A PROMISSORY NOTE FOR THE OPTION PRICE; BUT THE SHARES WERE
NOT DELIVERED UNTIL THE NOTES WERE PAID IN CASH, WHEN THE VALUE OF THE
SHARES HAD INCREASED.  HELD:  UNDER THE INTERNAL REVENUE CODE OF 1939,
AS AMENDED, THE RESULTING GAIN TO THE EMPLOYEE WAS TAXABLE AS INCOME
RECEIVED AT THE TIME HE EXERCISED THE OPTION AND PURCHASED THE STOCK,
AND HIS TAXABLE GAIN SHOULD BE MEASURED AS OF THE TIME WHEN THE OPTIONS
WERE EXERCISED AND NOT AS OF THE TIME WHEN THEY WERE GRANTED.  PP. 244
250. 

(A)  IN DEFINING "GROSS INCOME" AS BROADLY AS IT DID IN SEC. 22(A) OF
THE INTERNAL REVENUE CODE OF 1939, AS AMENDED, CONGRESS INTENDED TO TAX
ALL GAINS EXCEPT THOSE SPECIFICALLY EXEMPTED.  P. 246. 

(B)  THE ONLY EXEMPTION THAT COULD POSSIBLY APPLY TO THESE
TRANSACTIONS IS THE GIFT EXEMPTION OF SEC. 22(B)(3), AND THESE
TRANSACTIONS WERE NOT "GIFTS" IN THE STATUTORY SENSE.  PP. 246-247. 

(C)  THERE IS NO STATUTORY BASIS FOR EXCLUDING SUCH TRANSACTIONS FROM
"GROSS INCOME" ON THE GROUND THAT ONE PURPOSE OF THE EMPLOYER WAS TO
CONFER ON THE EMPLOYEE A "PROPRIETARY INTEREST" IN THE BUSINESS.  P.
247. 

(D)  THE EMPLOYEE RECEIVED A SUBSTANTIAL ECONOMIC AND FINANCIAL
BENEFIT FROM HIS EMPLOYER, PROMPTED BY THE EMPLOYER'S DESIRE TO GET
BETTER WORK FROM THE EMPLOYEE, AND THIS IS "COMPENSATION FOR PERSONAL
SERVICE" WITHIN THE MEANING OF SEC. 22(A).  P. 247. 

(E)  IN THESE CIRCUMSTANCES, THE EMPLOYEE "REALIZED" A TAXABLE GAIN
WHEN HE PURCHASED THE STOCK.  P. 248. 

(F)  THE EMPLOYEE'S TAXABLE GAIN SHOULD BE MEASURED BY THE DIFFERENCE
BETWEEN THE OPTION PRICE AND THE MARKET VALUE OF THE SHARES AS OF THE
TIME WHEN THE OPTIONS WERE EXERCISED AND NOT AS OF THE TIME WHEN THE
OPTIONS WERE GRANTED.  PP. 248-249. 

(G)  ON REMAND, THE TAX COURT MAY CONSIDER THE QUESTION, NOT
PREVIOUSLY PASSED ON, WHETHER DELIVERY OF A PROMISSORY NOTE FOR THE
PURCHASE PRICE MARKED THE COMPLETION OF THE STOCK PURCHASE AND WHETHER
THE GAIN SHOULD BE MEASURED AS OF THAT DATE OR AS OF THE DATE THE NOTE
WAS PAID.  P. 250. 

COMMISSIONER OF INTERNAL REVENUE V. LOBUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE FEDERAL INCOME TAX LIABILITY OF RESPONDENT
LOBUE FOR THE YEARS 1946 AND 1947.  FROM 1941 TO 1947 LOBUE WAS MANAGER
OF THE NEW YORK SALES DIVISION OF THE MICHIGAN CHEMICAL CORPORATION, A
PRODUCER AND DISTRIBUTOR OF CHEMICAL SUPPLIES.  IN 1944 THE COMPANY
ADOPTED A STOCK OPTION PLAN MAKING 10,000 SHARES OF ITS COMMON STOCK
AVAILABLE FOR DISTRIBUTION TO KEY EMPLOYEES AT $5 PER SHARE OVER A 3
YEAR PERIOD.  LOBUE AND A NUMBER OF OTHER EMPLOYEES WERE NOTIFIED THAT
THEY HAD BEEN TENTATIVELY CHOSEN TO BE RECIPIENTS OF NONTRANSFERABLE
STOCK OPTIONS CONTINGENT UPON THEIR CONTINUED EMPLOYMENT.  LOBUE'S
NOTICE TOLD HIM:  "YOU MAY BE ASSIGNED A GREATER OR LESS AMOUNT OF
STOCK BASED ENTIRELY UPON YOUR INDIVIDUAL RESULTS AND THAT OF THE
ENTIRE ORGANIZATION."  ABOUT 6 MONTHS LATER HE WAS NOTIFIED THAT HE HAD
BEEN DEFINITELY AWARDED AN OPTION TO BUY 150 SHARES OF STOCK IN
RECOGNITION OF HIS "CONTRIBUTION AND EFFORTS IN MAKING THE OPERATION OF
THE COMPANY SUCCESSFUL."  AS TO FUTURE ALLOTMENTS HE WAS TOLD "IT IS UP
TO YOU TO JUSTIFY YOUR PARTICIPATION IN THE PLAN DURING THE NEXT TWO
YEARS." 

LOBUE'S WORK WAS SO SATISFACTORY THAT THE COMPANY IN THE COURSE OF 3
YEARS DELIVERED TO HIM 3 STOCK OPTIONS COVERING 340 SHARES.  HE
EXERCISED ALL THESE $5 PER SHARE OPTIONS IN 1946 AND 1947, (FN1) PAYING
THE COMPANY ONLY $1,700 FOR STOCK HAVING A MARKET VALUE WHEN DELIVERED
OF $9,930.  THUS, AT THE END OF THESE TRANSACTIONS, LOBUE'S EMPLOYER
WAS WORTH $8,230 LESS TO ITS STOCKHOLDERS AND LOBUE WAS WORTH $8,230
MORE THAN BEFORE.  (FN2)  THE COMPANY DEDUCTED THIS SUM AS AN EXPENSE
IN ITS 1946 AND 1947 TAX RETURNS BUT LOBUE DID NOT REPORT ANY PART OF
IT AS INCOME.  VIEWING THE GAIN TO LOBUE AS COMPENSATION FOR PERSONAL
SERVICES THE COMMISSIONER LEVIED A DEFICIENCY ASSESSMENT AGAINST HIM,
RELYING ON SEC. 22(A) OF THE INTERNAL REVENUE CODE OF 1939, 53 STAT. 9,
AS AMENDED, 53 STAT. 574, WHICH DEFINES GROSS INCOME AS INCLUDING
"GAINS, PROFITS, AND INCOME DERIVED FROM  ... COMPENSATION FOR PERSONAL
SERVICE  ...  OF WHATEVER KIND AND IN WHATEVER FORM PAID  ...  ." 

LOBUE PETITIONED THE TAX COURT TO REDETERMINE THE DEFICIENCY, URGING
THAT "THE SAID OPTIONS WERE NOT INTENDED BY THE CORPORATION OR THE
PETITIONER TO CONSTITUTE ADDITIONAL COMPENSATION BUT WERE GRANTED TO
PERMIT THE PETITIONER TO ACQUIRE A PROPRIETARY INTEREST IN THE
CORPORATION AND TO PROVIDE HIM WITH THE INTEREST IN THE SUCCESSFUL
OPERATION OF THE CORPORATION DERIVING FROM AN OWNERSHIP INTEREST."  THE
TAX COURT HELD THAT LOBUE HAD A TAXABLE GAIN IF THE OPTIONS WERE
INTENDED AS COMPENSATION BUT NOT IF THE OPTIONS WERE DESIGNED TO
PROVIDE HIM WITH "A PROPRIETARY INTEREST IN THE BUSINESS."  FINDING
AFTER HEARINGS THAT THE OPTIONS WERE GRANTED TO GIVE LOBUE "A
PROPRIETARY INTEREST IN THE CORPORATION, AND NOT AS COMPENSATION FOR
SERVICES" THE TAX COURT HELD FOR LOBUE.  22 T.C. 440, 443.  RELYING ON
THIS FINDING THE COURT OF APPEALS AFFIRMED, SAYING:  "THIS WAS A
FACTUAL ISSUE WHICH IT WAS THE PECULIAR RESPONSIBILITY OF THE TAX COURT
TO RESOLVE.  FROM OUR EXAMINATION OF THE EVIDENCE WE CANNOT SAY THAT
ITS FINDING WAS CLEARLY ERRONEOUS."  223 F.2D 367, 371.  DISPUTES OVER
THE TAXABILITY OF STOCK OPTION TRANSACTIONS SUCH AS THIS ARE
LONGSTANDING.  (FN3)  WE GRANTED CERTIORARI TO CONSIDER WHETHER THE TAX
COURT AND THE COURT OF APPEALS HAD GIVEN SEC. 22(A) TOO NARROW AN
INTERPRETATION.  350 U.S. 893. 

WE HAVE REPEATEDLY HELD THAT IN DEFINING "GROSS INCOME" AS BROADLY AS
IT DID IN SEC.  22(A) CONGRESS INTENDED TO "TAX ALL GAINS EXCEPT THOSE
SPECIFICALLY EXEMPTED."  SEE, E.G., COMMISSIONER V. GLENSHAW GLASS CO.,
348 U.S. 426, 429-430.  THE ONLY EXEMPTION CONGRESS PROVIDED FROM THIS
VERY COMPREHENSIVE DEFINITION OF TAXABLE INCOME THAT COULD POSSIBLY
HAVE APPLICATION HERE IS THE GIFT EXEMPTION OF SEC. 22(B)(3).  BUT
THERE WAS NOT THE SLIGHTEST INDICATION OF THE KIND OF DETACHED AND
DISINTERESTED GENEROSITY WHICH MIGHT EVIDENCE A "GIFT" IN THE STATUTORY
SENSE.  THESE TRANSFERS OF STOCK BORE NONE OF THE EARMARKS OF A GIFT. 
THEY WERE MADE BY A COMPANY ENGAGED IN OPERATING A BUSINESS FOR PROFIT,
AND THE TAX COURT FOUND THAT THE STOCK OPTION PLAN WAS DESIGNED TO
ACHIEVE MORE PROFITABLE OPERATIONS BY PROVIDING THE EMPLOYEES "WITH AN
INCENTIVE TO PROMOTE THE GROWTH OF THE COMPANY BY PERMITTING THEM TO
PARTICIPATE IN ITS SUCCESS."  22 T.C., AT 445.  UNDER THESE
CIRCUMSTANCES THE TAX COURT AND THE COURT OF APPEALS PROPERLY REFRAINED
FROM TREATING THIS TRANSFER AS A GIFT.  THE COMPANY WAS NOT GIVING
SOMETHING AWAY FOR NOTHING.  (FN4) 

SINCE THE EMPLOYER'S TRANSFER OF STOCK TO ITS EMPLOYEE LOBUE FOR MUCH
LESS THAN THE STOCK'S VALUE WAS NOT A GIFT, IT SEEMS IMPOSSIBLE TO SAY
THAT IT WAS NOT COMPENSATION.  THE TAX COURT HELD THERE WAS NO TAXABLE
INCOME, HOWEVER, ON THE GROUND THAT ONE PURPOSE OF THE EMPLOYER WAS TO
CONFER A "PROPRIETARY INTEREST."  (FN5)  BUT THERE IS NOT A WORK IN
SEC. 22(A) WHICH INDICATES THAT ITS BROAD COVERAGE SHOULD BE NARROWED
BECAUSE OF AN EMPLOYER'S INTENTION TO ENLIST MORE EFFICIENT SERVICE
FROM HIS EMPLOYEES BY MAKING THEM PART PROPRIETORS OF HIS BUSINESS.  IN
OUR VIEW THERE IS NO STATUTORY BASIS FOR THE TEST ESTABLISHED BY THE
COURTS BELOW.  WHEN ASSETS ARE TRANSFERRED BY AN EMPLOYER TO AN
EMPLOYEE TO SECURE BETTER SERVICES THEY ARE PLAINLY COMPENSATION.  IT
MAKES NO DIFFERENCE THAT THE COMPENSATION IS PAID IN STOCK RATHER THAN
IN MONEY.  SECTION 22(A) TAXES INCOME DERIVED FROM COMPENSATION "IN
WHATEVER FORM PAID."  AND IN ANOTHER STOCK OPTION CASE WE SAID THAT
SEC. 22(A) "IS BROAD ENOUGH TO INCLUDE IN TAXABLE INCOME ANY ECONOMIC
OR FINANCIAL BENEFIT CONFERRED ON THE EMPLOYEE AS COMPENSATION,
WHATEVER THE FORM OR MODE BY WHICH IT IS EFFECTED."  COMMISSIONER V.
SMITH, 324 U.S. 177, 181.  LOBUE RECEIVED A VERY SUBSTANTIAL ECONOMIC
AND FINANCIAL BENEFIT FROM HIS EMPLOYER PROMPTED BY THE EMPLOYER'S
DESIRE TO GET BETTER WORK FROM HIM.  THIS IS "COMPENSATION FOR PERSONAL
SERVICE" WITHIN THE MEANING OF SEC. 22(A). 

LOBUE NONETHELESS ARGUES THAT WE SHOULD TREAT THIS TRANSACTION AS A
MERE PURCHASE OF A PROPRIETARY INTEREST ON WHICH NO TAXABLE GAIN WAS
"REALIZED" IN THE YEAR OF PURCHASE.  IT IS TRUE THAT OUR TAXING SYSTEM
HAS ORDINARILY TREATED AN ARM'S LENGTH PURCHASE OF PROPERTY EVEN AT A
BARGAIN PRICE AS GIVING RISE TO NO TAXABLE GAIN IN THE YEAR OF
PURCHASE.  SEE PALMER V. COMMISSIONER, 302 U.S. 63, 69.  BUT THAT IS
NOT TO SAY THAT WHEN A TRANSFER WHICH IS IN REALITY COMPENSATION IS
GIVEN THE FORM OF A PURCHASE THE GOVERNMENT CANNOT TAX THE GAIN UNDER
SEC. 22(A).  THE TRANSACTION HERE WAS UNLIKE A MERE PURCHASE.  IT WAS
NOT AN ARM'S LENGTH TRANSACTION BETWEEN STRANGERS.  INSTEAD IT WAS AN
ARRANGEMENT BY WHICH AN EMPLOYER TRANSFERRED VALUABLE PROPERTY TO HIS
EMPLOYEES IN RECOGNITION OF THEIR SERVICES.  WE HOLD THAT LOBUE
REALIZED TAXABLE GAIN WHEN HE PURCHASED THE STOCK.  (FN6) 

A QUESTION REMAINS AS TO THE TIME WHEN THE GAIN ON THE SHARES SHOULD
BE MEASURED.  LOBUE GAVE HIS EMPLOYER PROMISSORY NOTES FOR THE OPTION
PRICE OF THE FIRST 300 SHARES BUT THE SHARES WERE NOT DELIVERED UNTIL
THE NOTES WERE PAID IN CASH.  (FN7)  THE MARKET VALUE OF THE SHARES WAS
LOWER WHEN THE NOTES WERE GIVEN THAN WHEN THE CASH WAS PAID.  THE
COMMISSIONER MEASURED THE TAXABLE GAIN BY THE MARKET VALUE OF THE
SHARES WHEN THE CASH WAS PAID.  LOBUE CONTENDS THAT THIS WAS WRONG, AND
THAT THE GAIN SHOULD BE MEASURED EITHER WHEN THE OPTIONS WERE GRANTED
OR WHEN THE NOTES WERE GIVEN. 

IT IS OF COURSE POSSIBLE FOR THE RECIPIENT OF A STOCK OPTION TO
REALIZE AN IMMEDIATE TAXABLE GAIN.   SEE COMMISSIONER V. SMITH, 324
U.S. 177, 181-182.  THE OPTION MIGHT HAVE A READILY ASCERTAINABLE
MARKET VALUE AND THE RECIPIENT MIGHT BE FREE TO SELL HIS OPTION.  BUT
THIS IS NOT SUCH A CASE.  THESE THREE OPTIONS WERE NOT TRANSFERABLE
(FN8) AND LOBUE'S RIGHT TO BUY STOCK UNDER THEM WAS CONTINGENT UPON HIS
REMAINING AN EMPLOYEE OF THE COMPANY UNTIL THEY WERE EXERCISED. 
MOREOVER, THE UNIFORM TREASURY PRACTICE SINCE 1923 HAS BEEN TO MEASURE
THE COMPENSATION TO EMPLOYEES GIVEN STOCK OPTIONS SUBJECT TO
CONTINGENCIES OF THIS SORT BY THE DIFFERENCE BETWEEN THE OPTION PRICE
AND THE MARKET VALUE OF THE SHARES AT THE TIME THE OPTION IS
EXERCISED.  (FN9)  WE RELIED IN PART UPON THIS PRACTICE IN COMMISSIONER
V. SMITH, 324 U.S. 177, 324 U.S. 695.  AND IN ITS 1950 ACT AFFORDING
LIMITED TAX BENEFITS FOR "RESTRICTED STOCK OPTION PLANS" CONGRESS
ADOPTED THE SAME KIND OF STANDARD FOR MEASUREMENT OF GAINS.  SEC. 130A,
INTERNAL REVENUE CODE OF 1939, AS AMENDED, 64 STAT. 942.  AND SEE SEC.
421, INTERNAL REVENUE CODE OF 1954, 68A STAT. 142.  UNDER THESE
CIRCUMSTANCES THERE IS NO REASON FOR DEPARTING FROM THE TREASURY
PRACTICE.  THE TAXABLE GAIN TO LOBUE SHOULD BE MEASURED AS OF THE TIME
THE OPTIONS WERE EXERCISED AND NOT THE TIME THEY WERE GRANTED. 

IT IS POSSIBLE THAT A BONA FIDE DELIVERY OF A BINDING PROMISSORY NOTE
COULD MARK THE COMPLETION OF THE STOCK PURCHASE AND THAT GAIN SHOULD BE
MEASURED AS OF THAT DATE.  SINCE NEITHER THE TAX COURT NOR THE COURT OF
APPEALS PASSED ON THIS QUESTION THE JUDGMENT IS REVERSED AND THE CASE
IS REMANDED TO THE COURT OF APPEALS WITH INSTRUCTIONS TO REMAND THE
CASE TO THE TAX COURT FOR FURTHER PROCEEDINGS.  REVERSED AND REMANDED. 

FN1  THERE MAY BE SOME QUESTION AS TO WHETHER THE FIRST OPTION WAS
EXERCISED IN 1945 OR 1946.  SEE THE DISCUSSION, INFRA, AS TO WHEN THE
TRANSACTIONS WERE COMPLETED. 

FN2  THE COMMISSIONER ASSESSED A DEFICIENCY ON THE BASIS OF $8,680
ALTHOUGH THE RECORD FIGURES SHOW A DIFFERENCE BETWEEN OPTION PRICE AND
MARKET VALUE OF $8,230.  NO EXPLANATION FOR THE DISCREPANCY APPEARS IN
THE RECORD. 

FN3  SEE, E.G., DURKEE V. WELCH, 49 F.2D 339; ERSKINE V.
COMMISSIONER, 26 B.T.A. 147; GEESEMAN V. COMMISSIONER, 38 B.T.A. 258;
EVANS V. COMMISSIONER, 38 B.T.A. 1406.  SEE ALSO MILLER, THE TREASURY'S
PROPOSAL TO TAX EMPLOYEE'S BARGAIN PURCHASES, 56 YALE L.J. 706; NOTE,
64 YALE L.J. 269; 93 CONG. REC. A4060-A4066; SURREY AND WARREN, FEDERAL
INCOME TAXATION (1955 ED.), 653-674. 

FN4  ROBERTSON V. UNITED STATES, 343 U.S. 711, 713-714; BOGARDUS V.
COMMISSIONER, 302 U.S. 34. 

FN5  THE TAX COURT NOTED "THAT IN PRACTICALLY ALL SUCH CASES AS THE
ONE BEFORE US, BOTH THE ELEMENT OF ADDITIONAL COMPENSATION AND THE
GRANTING OF A PROPRIETARY INTEREST ARE PRESENT."  22 T.C., AT 445.  SEE
ALSO GEESEMAN V. COMMISSIONER, 38 B.T.A. 258, 263. 

FN6  SINCE OUR VIEW OF THE STATUTE REQUIRES TAXATION OF GAIN HERE IT
IS UNNECESSARY FOR US TO RELY ON THE TREASURY REGULATIONS TO REACH THAT
CONCLUSION.  APPARENTLY THE PRESENT REGULATIONS WERE NOT APPLICABLE TO
ALL OF THE OPTIONS.  SEE 26 CFR, REV. 1953, SEC. 39.22(A)-1(C); 1939-1
CUM. BULL.  159; 1946-1 CUM. BULL.  15-18.  AND SINCE THE TRANSACTIONS
IN QUESTION HERE OCCURRED PRIOR TO 1950 THE 1950 STATUTE ESTABLISHING
SPECIAL TAX TREATMENT FOR "RESTRICTED STOCK OPTION PLANS" HAS NO
RELEVANCE.  SEE SEC.  130A, INTERNAL REVENUE CODE OF 1939, AS AMENDED,
64 STAT. 942.  AND SEE SEC. 421, INTERNAL REVENUE CODE OF 1954, 68A
STAT. 142. 

FN7  LOBUE PAID CASH FOR THE LAST 40 SHARES. 

FN8  CF. MCNAMARA V. COMMISSIONER, 210 F.2D 505. 

FN9  SEE 1923 II-1 CUM. BULL.  50; 1939-1 CUM. BULL.  159; 1946-1
CUM. BULL.  15-18; DILLAVOU, EMPLOYEE STOCK OPTIONS, 20 ACCOUNTING
REVIEW 320; MILLER, THE TREASURY'S PROPOSAL TO TAX EMPLOYEE'S BARGAIN
PURCHASES, 56 YALE L.J. 706, 713-715.  SEE ALSO NOTE, THE VALUATION OF
OPTION STOCK SUBJECT TO REPURCHASE OPTIONS AND RESTRAINTS ON SALE, 62
YALE L.J. 832; NOTE, TAX EFFECTS OF ABSENCE OF MARKET VALUE ON EMPLOYEE
BARGAIN PURCHASES, 21 U. OF CHI.  L. REV. 464. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE CLARK, CONCURRING. 

WE JOIN IN THE JUDGMENT OF THE COURT AND IN ITS OPINION ON THE MAIN
ISSUE.  HOWEVER, THE TIME WHEN LOBUE ACQUIRED THE INTEREST ON WHICH HE
IS TAXED WAS NOT IN ISSUE EITHER BEFORE THE TAX COURT OR THE COURT OF
APPEALS.  IN THE CIRCUMSTANCES OF THIS CASE, THERE CERTAINLY IS NO
REASON FOR DEPARTING FROM THE GENERAL RULE WHEREBY THIS COURT ABSTAINS
FROM PASSING ON SUCH AN ISSUE IN A TAX CASE WHEN RAISED HERE FOR THE
FIRST TIME.  SEE HELVERING V. MINNESOTA TEA CO., 296 U.S. 378, 380;
HELVERING V. TEX-PENN CO., 300 U.S. 481, 498. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE BURTON JOINS, CONCURRING IN PART
AND DISSENTING IN PART. 

IN MY VIEW, THE TAXABLE EVENT WAS THE GRANT OF EACH OPTION, NOT ITS
EXERCISE.  WHEN THE RESPONDENT RECEIVED AN UNCONDITIONAL OPTION TO BUY
STOCK AT LESS THAN THE MARKET PRICE, HE RECEIVED AN ASSET OF
SUBSTANTIAL AND IMMEDIATELY REALIZABLE VALUE, AT LEAST EQUAL TO THE
THEN-EXISTING SPREAD BETWEEN THE OPTION PRICE AND THE MARKET PRICE.  IT
WAS AT THAT TIME THAT THE CORPORATION CONFERRED A BENEFIT UPON HIM.  AT
THE EXERCISE OF THE OPTION, THE CORPORATION "GAVE" THE RESPONDENT
NOTHING; IT SIMPLY SATISFIED A PREVIOUSLY-CREATED LEGAL OBLIGATION. 
THAT TRANSACTION, BY WHICH THE RESPONDENT MERELY CONVERTED HIS ASSET
FROM AN OPTION INTO A STOCK, SHOULD BE OF NO CONSEQUENCE FOR TAX
PURPOSES.  THE OPTION SHOULD BE TAXABLE AS INCOME WHEN GIVEN, AND ANY
SUBSEQUENT GAIN THROUGH APPRECIATION OF THE STOCK, WHETHER REALIZED BY
SALE OF THE OPTION, IF TRANSFERABLE, OR BY SALE OF THE STOCK ACQUIRED
BY ITS EXERCISE, IS ATTRIBUTABLE TO THE SALE OF A CAPITAL ASSET AND, IF
THE OTHER REQUIREMENTS ARE SATISFIED, SHOULD BE TAXED AS A CAPITAL
GAIN.  (FN1)  ANY OTHER RESULT MAKES THE DIVISION OF THE TOTAL GAINS
BETWEEN ORDINARY INCOME (COMPENSATION) AND CAPITAL GAIN (SALE OF AN
ASSET) DEPENDENT SOLELY UPON THE FORTUITOUS CIRCUMSTANCE OF WHEN THE
EMPLOYEE EXERCISES HIS OPTION.  (FN2)    THE LAST TWO OPTIONS GRANTED
TO RESPONDENT WERE UNCONDITIONAL AND IMMEDIATELY EXERCISABLE, AND THUS
PRESENT NO FURTHER PROBLEMS.  THE FIRST OPTION, HOWEVER, WAS GRANTED
UNDER SOMEWHAT DIFFERENT CIRCUMSTANCES.  RESPONDENT WAS NOTIFIED IN
JANUARY 1945 THAT 150 SHARES HAD BEEN "ALLOTTED" TO HIM, BUT HE WAS
GIVEN NO RIGHT TO PURCHASE THEM UNTIL JUNE 30, 1945, AND HIS RIGHT TO
DO SO THEN WAS EXPRESSLY MADE CONTINGENT UPON HIS STILL BEING EMPLOYED
AT THAT DATE.  HIS RIGHT TO PURCHASE THE FIRST ALLOTMENT OF STOCK WAS
THUS NOT VESTED UNTIL HE SATISFIED THE STATED CONDITION, AND IT WAS NOT
UNTIL THEN THAT HE COULD BE SAID TO HAVE RECEIVED INCOME, THE MEASURE
OF WHICH SHOULD BE THE VALUE OF THE OPTION ON THAT DATE. 

ACCORDINGLY, WHILE I CONCUR IN THE REVERSAL OF THE JUDGMENT BELOW AND
IN THE REMAND TO THE TAX COURT, I WOULD HOLD THE GRANTING OF THE
OPTIONS TO BE THE TAXABLE EVENTS AND WOULD MEASURE THE INCOME BY THE
VALUE OF THE OPTIONS WHEN GRANTED. 

FN1  COMMISSIONER V. SMITH, 324 U.S. 177, 324 U.S. 695, DOES NOT
REQUIRE AN OPPOSITE RESULT.  IN THAT CASE SMITH'S EMPLOYER, WESTERN,
HAD UNDERTAKEN THE MANAGEMENT OF A REORGANIZED CORPORATION, HAWLEY,
UNDER A CONTRACT BY WHICH WESTERN WAS TO RECEIVE AS COMPENSATION FOR
ITS MANAGERIAL SERVICES A SPECIFIED AMOUNT OF STOCK IN HAWLEY IF IT WAS
SUCCESSFUL IN REDUCING HAWLEY'S INDEBTEDNESS BY A STATED AMOUNT. 
WESTERN, IN TURN, GAVE SMITH, WHO WAS ACTIVE IN THE HAWLEY
REORGANIZATION, AN OPTION TO BUY, AT THE THEN-EXISTING MARKET PRICE, A
FIXED SHARE OF ANY HAWLEY STOCK RECEIVED UNDER THE MANAGEMENT
CONTRACT.  THE MANAGEMENT CONTRACT WAS SUCCESSFULLY PERFORMED, AND A
PART OF THE HAWLEY STOCK RECEIVED BY WESTERN - THE VALUE OF WHICH WAS
OF COURSE SUBSTANTIALLY ENHANCED BY THE PERFORMANCE OF THE CONTRACT -
WAS SOLD TO SMITH AT THE OPTION PRICE.  UNDER THE PECULIAR FACTS OF
THAT CASE - MORE ANALOGOUS TO AN ASSIGNMENT TO AN EMPLOYEE OF A SHARE
IN THE ANTICIPATED PROCEEDS OF A CONTRACT THAN TO THE USUAL EMPLOYEE
STOCK OPTION PLAN - THE TAX COURT'S FINDING THAT THE GAIN THAT WOULD
ACCRUE TO SMITH UPON THE SUCCESSFUL PERFORMANCE OF THE MANAGEMENT
CONTRACT WAS INTENDED AS "COMPENSATION" TO HIM FOR HIS SERVICES WAS NO
DOUBT AMPLY JUSTIFIED.  BUT AS THE COURT EXPRESSLY STATED IN UPHOLDING
THAT FINDING:  "IT OF COURSE DOES NOT FOLLOW THAT IN OTHER
CIRCUMSTANCES NOT HERE PRESENT THE OPTION ITSELF, RATHER THAN THE
PROCEEDS OF ITS EXERCISE, COULD NOT BE FOUND TO BE THE ONLY INTENDED
COMPENSATION."  ID., AT P. 182. 

FN2  SUPPOSE TWO EMPLOYEES ARE GIVEN UNCONDITIONAL OPTIONS TO BUY
STOCK AT $5, THE CURRENT MARKET VALUE.  THE FIRST EXERCISES THE OPTION
IMMEDIATELY AND SELLS THE STOCK A YEAR LATER AT $15.  THE SECOND HOLDS
THE OPTION FOR A YEAR, EXERCISES IT, AND SELLS THE STOCK IMMEDIATELY AT
$15.  ADMITTEDLY THE $10 GAIN WOULD BE TAXED TO THE FIRST AS CAPITAL
GAIN; UNDER THE COURT'S VIEW, IT WOULD BE TAXED TO THE SECOND AS
ORDINARY INCOME BECAUSE IT IS "COMPENSATION" FOR SERVICES.  I FAIL TO
SEE HOW THE GAIN CAN BE ANY MORE "COMPENSATION" TO ONE THAN IT IS TO
THE OTHER. 
..END :
























OFFUTT HOUSING CO. V. COUNTY OF SARPY 351 U.S. 253 


NO. 404.  ARGUED APRIL 26, 30, 1956.  - DECIDED MAY 28, 1956.  - 160
NEB. 320, 70 N.W.2D 382, AFFIRMED. 


PETITIONER ENTERED INTO A CONTRACT WITH THE SECRETARY OF THE AIR
FORCE, UNDER WHICH PETITIONER LEASED FROM THE GOVERNMENT LAND ON AN AIR
FORCE BASE IN NEBRASKA AND BUILT THEREON HOUSING ACCOMMODATIONS TO BE
RENTED BY PETITIONER TO MILITARY AND CIVILIAN PERSONNEL OF THE BASE
UNDER STRICT GOVERNMENTAL CONTROL.  THE LEASE WAS FOR A TERM OF 75
YEARS AT NOMINAL RENTAL AND PROVIDED THAT THE BUILDINGS AND
IMPROVEMENTS MADE UPON THE LEASED PREMISES SHOULD REMAIN THE PROPERTY
OF THE GOVERNMENT WITHOUT COMPENSATION.  THE ESTIMATED USEFUL LIFE OF
THE BUILDINGS AND IMPROVEMENTS WAS ONLY 35 YEARS.  THE NEBRASKA COUNTY
IN WHICH THE BASE WAS LOCATED ASSESSED AGAINST PETITIONER "PERSONAL
PROPERTY" TAXES ON THE BUILDINGS, IMPROVEMENTS, APPLIANCES AND
FURNITURE ERECTED OR PROVIDED BY PETITIONER ON THE PREMISES.  HELD: 

1.  BY THE MILITARY LEASING ACT OF 1947 AND THE WHERRY MILITARY
HOUSING ACT OF 1949, CONGRESS CONSENTED TO STATE TAXATION OF
PETITIONER'S INTEREST AS LESSEE, THOUGH THE AREA INVOLVED IS SUBJECT TO
THE FEDERAL POWER OF "EXCLUSIVE LEGISLATION."  PP. 257-261. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, THE FULL VALUE OF THE
BUILDINGS AND IMPROVEMENTS IS ATTRIBUTABLE TO THE LESSEE'S INTEREST. 
PP. 261-262. 

3.  PETITIONER'S INTEREST IN THE APPLICANCES IS SUBJECT TO THE STATE
TAX IN LIKE MANNER AS ITS INTEREST IN THE BUILDINGS.  P. 262. 

OFFUTT HOUSING CO. V. COUNTY OF SARPY ET AL. 

CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT BY PETITIONER AGAINST RESPONDENT COUNTY AND ITS
TREASURER FOR A DECLARATORY JUDGMENT THAT PETITIONER WAS NOT REQUIRED
TO PAY CERTAIN STATE AND COUNTY "PERSONAL PROPERTY" TAXES AND FOR AN
INJUNCTION AGAINST THE LEVY OF SUCH TAXES ON THAT PROPERTY.  THE
CONTROLLING FACTS ARE NOT IN DISPUTE.  PETITIONER IS A NEBRASKA
CORPORATION ORGANIZED PRIMARILY TO PROVIDE HOUSING FOR RENT OR SALE. 
ON JANUARY 18, 1951, PETITIONER ENTERED INTO A CONTRACT WITH THE
SECRETARY OF THE AIR FORCE TO LEASE 63 ACRES OF LAND AND TO BUILD A
HOUSING PROJECT ON OFFUTT AIR FORCE BASE IN RESPONDENT COUNTY IN
ACCORDANCE WITH SPECIFICATIONS SUBMITTED TO THE DEPARTMENT OF THE AIR
FORCE AND TO BE APPROVED BY THE FEDERAL HOUSING COMMISSIONER. 

THE LEASE WAS FOR 75 YEARS AT A RENTAL PRICE OF $100 PER YEAR.  IT
PROVIDED THAT THE "BUILDINGS AND IMPROVEMENTS ERECTED BY THE LESSEE,
CONSTITUTING THE AFORESAID HOUSING PROJECT, SHALL BE AND BECOME, AS
COMPLETED, REAL ESTATE AND PART OF THE LEASED LAND, AND PUBLIC
BUILDINGS OF THE UNITED STATES, LEASED TO LESSEE  ...  " AND FURTHER
PROVIDED THAT "UPON THE EXPIRATION OF THIS LEASE, OR EARLIER
TERMINATION, ALL IMPROVEMENTS MADE UPON THE LEASED PREMISES SHALL
REMAIN THE PROPERTY OF THE GOVERNMENT WITHOUT COMPENSATION  ...  ." 
PETITIONER WAS TO LEASE ALL THE UNITS OF THE PROJECT TO SUCH MILITARY
AND CIVILIAN PERSONNEL AT THE BASE AS WERE DESIGNATED BY THE COMMANDING
OFFICER, ON TERMS SPECIFIED IN THE CONTRACT AND AT A MAXIMUM RENT
APPROVED BY THE FEDERAL HOUSING ADMINISTRATION AND THE AIR FORCE.  THE
GOVERNMENT WAS TO PROVIDE FIRE AND POLICE PROTECTION TO THE PROJECT ON
A REIMBURSABLE BASIS.  PETITIONER HAD THE RIGHT TO PERMIT PUBLIC
UTILITIES TO EXTEND WATER, GAS, SEWER, TELEPHONE, AND ELECTRIC POWER
LINES ONTO THE LEASED LAND IN ORDER TO PROVIDE THOSE SERVICES. 
PETITIONER AGREED TO INSURE THE BUILDINGS AT ITS OWN EXPENSE, TO PERMIT
GOVERNMENT INSPECTION OF THE PREMISES, AND TO COMPLY WITH REGULATIONS
PRESCRIBED BY THE COMMANDING OFFICER FOR MILITARY REQUIREMENTS FOR
SAFETY AND SECURITY PURPOSES, CONSISTENT WITH THE USE OF THE LEASED
LAND FOR HOUSING.  PETITIONER COULD NOT ASSIGN THE LEASE WITHOUT THE
WRITTEN APPROVAL OF THE SECRETARY OF THE AIR FORCE. 

THE PREFERRED STOCK OF PETITIONER WAS HELD BY THE COMMISSIONER OF THE
FEDERAL HOUSING ADMINISTRATION WHICH, ACTING UNDER TITLE VIII OF THE
NATIONAL HOUSING ACT (THE WHERRY MILITARY HOUSING ACT), 63 STAT. 570,
INSURED A MORTGAGE ON THE PROJECT AFTER RECEIVING A CERTIFICATE FROM
THE DEPARTMENT OF THE AIR FORCE THAT A HOUSING PROJECT WAS NECESSARY TO
PROVIDE ADEQUATE HOUSING FOR CIVILIAN OR MILITARY PERSONNEL.  AFTER THE
SIGNING OF THE CONTRACT AND THE INSURANCE OF THE MORTGAGE, CONSTRUCTION
PROCEEDED FORTHWITH.  PETITIONER FILED NO COUNTY TAX RETURN, ALTHOUGH
THE ATTORNEY GENERAL OF NEBRASKA HAD RULES THAT ITS INTEREST IN THE
PROJECT, INCLUDING ALL OF THE "PERSONAL PROPERTY" USED THEREIN, WAS
TAXABLE AS "PERSONAL PROPERTY."  ON JUNE 23, 1952, THE COUNTY ASSESSOR
OF SARPY COUNTY FILED A SCHEDULE ON BEHALF OF PETITIONER, LISTING A
TAXABLE TOTAL OF $825,685, ITEMIZED AS "FURNITURE & FIXTURES - TOOLS &
EQUIPMENT"; "HOUSEHOLD APPLIANCES"; AND "IMPROVEMENTS ON LEASED LAND." 
PETITIONER NEVER PAID THE RESULTING COUNTY AND STATE TAXES, AND AFTER
THE COUNTY TREASURER THREATENED TO ISSUE THE USUAL DISTRESS WARRANT TO
COLLECT THE TAXES, PETITIONER BROUGHT THIS SUIT. 

THE DISTRICT COURT OF SARPY COUNTY HELD THAT, SINCE TITLE TO THE
BUILDINGS AND IMPROVEMENTS WAS IN THE UNITED STATES, NEBRASKA AND SARPY
COUNTY COULD NOT TAX THEM.  THE SUPREME COURT OF NEBRASKA REVERSED,
HOLDING THAT CONGRESS HAD GIVEN NEBRASKA THE RIGHT TO TAX PETITIONER'S
INTEREST IN THE PROPERTY AND THAT FOR TAX PURPOSES, UNDER NEB. REV.
STAT.  REISSUE 1950, SEC. 77-1209, PETITIONER WAS IN FACT AND AS A
MATTER OF LAW THE OWNER OF THE PROPERTY SOUGHT TO BE TAXED.  160 NEB.
320, 70 N.W.2D 382.  PETITIONER'S ATTACK ON THE NEBRASKA JUDGMENT
RAISES SERIOUS QUESTIONS OF STATE-FEDERAL RELATIONS WITH RESPECT TO
TAXATION OF PRIVATE HOUSING DEVELOPMENTS ON GOVERNMENT-OWNED LAND, AND
THEREFORE WE GRANTED CERTIORARI.  350 U.S. 893. 

THIS IS ANOTHER IN A LONG SERIES OF CASES IN THIS COURT DEALING WITH
THE POWER OF THE STATES TO TAX PROPERTY IN PRIVATE HANDS AGAINST A
CLAIM OF EXEMPT STATUS DERIVING FROM AN IMMUNITY OF THE FEDERAL
GOVERNMENT FROM STATE TAXATION.  OFFUTT AIR FORCE BASE FALLS WITHIN THE
SCOPE OF ARTICLE I, SEC. 8, CL. 17 OF THE UNITED STATES CONSTITUTION,
PROVIDING THAT THE CONGRESS SHALL HAVE POWER: 

"TO EXERCISE EXCLUSIVE LEGISLATION IN ALL CASES WHATSOEVER, OVER SUCH
DISTRICT (OF COLUMBIA)  ... AND TO EXERCISE LIKE AUTHORITY OVER ALL
PLACES PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE STATE IN
WHICH THE SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES,
ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL BUILDINGS  ...  ." 

THE COURSE OF CONSTRUCTION OF THIS PROVISION CANNOT BE SAID TO HAVE
RUN SMOOTH.  THE POWER OF "EXCLUSIVE LEGISLATION" HAS BEEN HELD TO
PROHIBIT A STATE TAX ON PRIVATE PROPERTY LOCATED ON A MILITARY BASE
ACQUIRED PURSUANT TO ART. I, SEC. 8, CL. 17.  SURPLUS TRADING CO. V.
COOK, 281 U.S. 647.  ON THE OTHER HAND, THE STATE MAY ACQUIRE THE RIGHT
TO TAX PRIVATE INTERESTS WITHIN SUCH A LOCATION BY PERMISSION OF
CONGRESS, SEE, E.G., THE BUCK ACT, 54 STAT. 1059 (PERMITTING STATE
SALES, USE, AND INCOME TAXES), AND WE HAVE ALSO HELD THAT THE STATE MAY
TAX WHEN THE UNITED STATES DIVESTS ITSELF OF PROPRIETARY INTEREST OVER
THE AREA ON WHICH THE TAX IS SOUGHT TO BE LEVIED.  S.R.A., INC. V.
MINNESOTA, 327 U.S. 558; SEE ALSO BALTIMORE SHIPBUILDING CO. V.
BALTIMORE, 195 U.S. 375. 

THE LINE OF LEAST RESISTANCE IN ANALYSIS OF OUR IMMEDIATE PROBLEM IS
TO ASCERTAIN WHETHER CONGRESS HAS GIVEN CONSENT TO THE TYPE OF STATE
TAXATION HERE ASSERTED.  THE APPLICABLE CONGRESSIONAL STATUTES ARE THE
MILITARY LEASING ACT OF 1947 AND THE WHERRY MILITARY HOUSING ACT OF
1949 (ADDING TITLE VIII TO THE NATIONAL HOUSING ACT).  THE MILITARY
LEASING ACT PROVIDES: 

"THAT WHENEVER THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY
SHALL DEEM IT TO BE ADVANTAGEOUS TO THE GOVERNMENT HE IS AUTHORIZED TO
LEASE SUCH REAL OR PERSONAL PROPERTY UNDER THE CONTROL OF HIS
DEPARTMENT AS IS NOT SURPLUS TO THE NEEDS OF THE DEPARTMENT WITHIN THE
MEANING OF THE ACT OF OCTOBER 3, 1944 (58 STAT. 765), AND IS NOT FOR
THE TIME REQUIRED FOR PUBLIC USE, TO SUCH LESSEE OR LESSEES AND UPON
SUCH TERMS AND CONDITIONS AS IN HIS JUDGMENT WILL PROMOTE THE NATIONAL
DEFENSE OR WILL BE IN THE PUBLIC INTEREST.  EACH SUCH LEASE SHALL BE
FOR A PERIOD NOT EXCEEDING FIVE YEARS UNLESS THE SECRETARY OF THE
DEPARTMENT CONCERNED SHALL DETERMINE THAT A LONGER PERIOD WILL PROMOTE
THE NATIONAL DEFENSE OR WILL BE IN THE PUBLIC INTEREST  ...  .  EACH
SUCH LEASE SHALL CONTAIN A PROVISION PERMITTING THE SECRETARY OF THE
DEPARTMENT CONCERNED TO REVOKE THE LEASE AT ANY TIME, UNLESS THE
SECRETARY SHALL DETERMINE THAT THE OMISSION OF SUCH PROVISION FROM THE
LEASE WILL PROMOTE THE NATIONAL DEFENSE OR WILL BE IN THE PUBLIC
INTEREST.  IN ANY EVENT EACH SUCH LEASE SHALL BE REVOCABLE BY THE
SECRETARY OF THE DEPARTMENT CONCERNED DURING A NATIONAL EMERGENCY
DECLARED BY THE PRESIDENT ...  .  THE AUTHORITY HEREIN GRANTED SHALL
NOT APPLY TO OIL, MINERAL, OR PHOSPHATE LANDS  ...  . 

     *         *         *         *      * 

"SEC. 6.  THE LESSEE'S INTEREST, MADE OR CREATED PURSUANT TO THE
PROVISIONS OF THIS ACT, SHALL BE MADE SUBJECT TO STATE OR LOCAL
TAXATION.  ANY LEASE OF PROPERTY AUTHORIZED UNDER THE PROVISIONS OF
THIS ACT SHALL CONTAIN A PROVISION THAT IF AND TO THE EXTENT THAT SUCH
PROPERTY IS MADE TAXABLE BY STATE AND LOCAL GOVERNMENTS BY ACT OF
CONGRESS, IN SUCH EVENT THE TERMS OF SUCH LEASE SHALL BE
RENEGOTIATED."  61 STAT. 774-776. 

TWO YEARS LATER, THE WHERRY ACT PROVIDED: 

"WHENEVER THE SECRETARY OF THE ARMY, NAVY, OR AIR FORCE DETERMINES
THAT IT IS DESIRABLE TO LEASE REAL PROPERTY WITHIN THE MEANING OF THE
ACT OF AUGUST 5, 1947 (61 STAT. 774), TO EFFECTUATE THE PURPOSES OF
THIS TITLE, THE SECRETARY CONCERNED IS AUTHORIZED TO LEASE SUCH
PROPERTY UNDER THE AUTHORITY OF SAID ACT UPON SUCH TERMS AND CONDITIONS
AS IN HIS OPINION WILL BEST SERVE THE NATIONAL INTEREST WITHOUT REGARD
TO THE TERM OR DURATION OF THE LEASE, AND THE POWER VESTED IN THE
SECRETARY OF THE DEPARTMENT CONCERNED TO REVOKE ANY LEASE MADE PURSUANT
TO SAID ACT IN THE EVENT OF A NATIONAL EMERGENCY DECLARED BY THE
PRESIDENT SHALL NOT APPLY  ...  ."  63 STAT. 570, 576. 

THESE TWO ACTS INTERLOCK AND MUST BE READ TOGETHER.  THE REASONABLE
RELATIONSHIP BETWEEN THEM HAS BEEN THUS DELINEATED BY THE COURT OF
APPEALS FOR THE THIRD CIRCUIT: 

"IN OUR VIEW THIS PROVISION OF THE NATIONAL HOUSING ACT (THE 1949
ACT) MERELY PERMITS LEASING FOR MILITARY HOUSING PURPOSES, ALREADY
COVERED BY THE GENERAL AUTHORIZATION OF THE 1947 ACT, TO BE
ACCOMPLISHED WITHOUT REGARD TO SPECIFIED RESTRICTIONS OF THE 1947 ACT,
WHEN THE ELIMINATION OF THESE RESTRICTIONS WOULD SERVE THE PURPOSES OF
THE HOUSING ACT.  OTHER PROVISIONS OF THE 1947 ACT, INCLUDING THE
LANGUAGE OF SECTION 6 SUBJECTING THE LESSEE'S INTEREST TO LOCAL
TAXATION, APPLY TO LEASES MADE UNDER THE AUTHORITY OF BOTH ACTS. 

"WE HAVE NOT OVERLOOKED THE ARGUMENT FOR A NARROWER VIEW OF THE SCOPE
OF THE 1947 ACT BASED UPON LEGISLATIVE HISTORY INDICATING THAT THE
PRIMARY PURPOSE OF THAT ACT WAS TO PROVIDE FOR THE LEASING OF STAND-BY
DEFENSE PLANTS.  BUT THE LANGUAGE OF THE ACT EXTENDS THE LEASING
AUTHORITY TO ALL NON-SURPLUS PROPERTY UNDER THE CONTROL OF THE DEFENSE
DEPARTMENT EXCEPT OIL, MINERAL, OR PHOSPHATE LANDS (AN EXCEPTION WHICH
WOULD BE UNNECESSARY IF THE ACT APPLIED ONLY TO DEFENSE PLANTS).  AN
ADDITIONAL INDICATION THAT THE 1947 ACT ENCOMPASSES THE LEASING OF
PROPERTY GENERALLY IS FOUND IN SECTION 2 WHICH REPEALS THE PRIOR
AUTHORITY FOR THE LEASING OF WAR DEPARTMENT PROPERTY GENERALLY, 27
STAT.  321.  THE SENATE REPORT EXPRESSES THE REPORTING COMMITTEE'S
UNDERSTANDING THAT THIS PRIOR LEASING STATUTE WAS BEING 'ENTIRELY
SUPERSEDED'.  SEN. REP. NO. 626, 1947, 80TH CONG. 1ST SESS. (P. 3)." 
FORT DIX APARTMENTS CORP V. BOROUGH OF WRIGHTSTOWN, 225 F.2D 473, 475
476. 

WE AGREE WITH THIS,  TO BE SURE, THE 1947 ACT DOES NOT REFER
SPECIFICALLY TO PROPERTY IN AN AREA SUBJECT TO THE POWER OF "EXCLUSIVE
LEGISLATION" BY CONGRESS.  IT DOES, HOWEVER, GOVERN THE LEASING OF
GOVERNMENT PROPERTY GENERALLY AND ITS PERMISSION TO TAX EXTENDS
GENERALLY TO ALL LESSEES' INTERESTS CREATED BY VIRTUE OF THE ACT.  THE
LEGISLATIVE HISTORY INDICATES A CONCERN ABOUT LOSS OF REVENUE TO THE
STATES AND A DESIRE TO PREVENT UNFAIRNESS TOWARD COMPETITORS OF THE
PRIVATE INTERESTS THAT MIGHT OTHERWISE ESCAPE TAXATION.  WHILE THE
LATTER CONSIDERATION IS NOT NECESSARILY APPLICABLE WHERE MILITARY
HOUSING IS INVOLVED, THE FORMER IS EQUALLY RELEVANT TO LEASES FOR
MILITARY HOUSING AS FOR ANY OTHER PURPOSE. 

WE DO NOT SAY THAT THIS IS THE ONLY ADMISSIBLE CONSTRUCTION OF THESE
ACTS.  WE COULD REGARD ART. I, SEC. 8, CL. 17 AS OF SUCH OVERRIDING AND
COMPREHENSIVE SCOPE THAT CONSENT BY CONGRESS TO STATE TAXATION OF
OBVIOUSLY VALUABLE PRIVATE INTERESTS LOCATED IN AN AREA SUBJECT TO THE
POWER OF "EXCLUSIVE LEGISLATION" IS TO BE FOUND ONLY IN EXPLICIT AND
UNAMBIGUOUS LEGISLATIVE ENACTMENT.  WE HAVE NOT HERETOFORE SO REGARDED
IT, SEE S.R.A.  INC. V. MINNESOTA, 327 U.S. 558; BALTIMORE SHIPBUILDING
CO. V. BALTIMORE, 195 U.S. 375, NOR ARE WE CONSTRAINED BY REASON TO
TREAT THIS EXERCISE BY CONGRESS OF THE "EXCLUSIVE LEGISLATION" POWER
AND THE MANNER OF CONSTRUING IT ANY DIFFERENTLY FROM ANY OTHER EXERCISE
BY CONGRESS OF THAT POWER.  THIS IS ONE OF THOSE CASES IN WHICH
CONGRESS HAS SEEN FIT NOT TO EXPRESS ITSELF UNEQUIVOCALLY.  IT HAS
PREFERRED TO USE GENERAL LANGUAGE AND THEREBY REQUIRES THE JUDICIARY TO
APPLY THIS GENERAL LANGUAGE TO A SPECIFIC PROBLEM.  TO THAT END WE MUST
RESORT TO WHATEVER AIDS TO INTERPRETATION THE LEGISLATION IN ITS
ENTIRETY AND ITS HISTORY PROVIDE.  CHARGED AS WE ARE WITH THIS
FUNCTION, WE HAVE CONCLUDED THAT THE MORE PERSUASIVE CONSTRUCTION OF
THE STATUTE, HOWEVER FLICKERING AND FEEBLE THE LIGHT AFFORDED FOR
EXTRACTING ITS MEANING, IS THAT THE STATES WERE TO BE PERMITTED TO TAX
PRIVATE INTERESTS, LIKE THOSE OF THIS PETITIONER, IN HOUSING PROJECTS
LOCATED ON AREAS SUBJECT TO THE FEDERAL POWER OF "EXCLUSIVE
LEGISLATION."  WE DO NOT HOLD THAT CONGRESS HAS RELINQUISHED THIS POWER
OVER THESE AREAS.  WE HOLD ONLY THAT CONGRESS, IN THE EXERCISE OF THIS
POWER, HAS PERMITTED SUCH STATE TAXATION AS IS INVOLVED IN THE PRESENT
CASE. 

PETITIONER ALSO ARGUES THAT THE STATE TAX, MEASURED BY THE FULL VALUE
OF THE BUILDINGS AND IMPROVEMENTS, IS NOT ON THE "LESSEE'S INTEREST"
BUT IS ON THE FULL VALUE OF PROPERTY OWNED BY THE GOVERNMENT.  LABELING
THE GOVERNMENT AS THE "OWNER" DOES NOT FORECLOSE US FROM ASCERTAINING
THE NATURE OF THE REAL INTERESTS CREATED AND SO DOES NOT SOLVE THE
PROBLEM.  SEE MILLINERY CENTER BUILDING CORP. V. COMMISSIONER, 350 U.S.
456.  THE LEASE IS FOR 75 YEARS; THE BUILDINGS AND IMPROVEMENTS HAVE AN
ESTIMATED USEFUL LIFE OF 35 YEARS.  THE ENJOYMENT OF THE ENTIRE WORTH
OF THE BUILDINGS AND IMPROVEMENTS WILL THEREFORE BE PETITIONER'S. 
PETITIONER ARGUES, HOWEVER, THAT THE GOVERNMENT HAS A SUBSTANTIAL
INTEREST IN THE BUILDINGS AND IMPROVEMENTS, SINCE THE GOVERNMENT
PRESCRIBED THE MAXIMUM RENTS AND DETERMINED THE OCCUPANTS, HAD VOTING
INTERESTS IN PETITIONER, PROVIDED SERVICES, AND TOOK THE FINANCIAL
RISKS BY INSURING THE PROJECT.  PETITIONER COMPARES ITS OWN POSITION TO
THAT OF A "MANAGING AGENT."  THIS CHARACTERIZATION IS AN ATTEMPT BY USE
OF A PHRASE TO MAKE THESE FACTS FIT AN ABSTRACT LEGAL CATEGORY.  THIS
CONTENTION WOULD CERTAINLY SURPRISE A CONGRESS WHICH WAS INTERESTED IN
HAVING PRIVATE ENTERPRISE AND NOT THE GOVERNMENT CONDUCT THESE HOUSING
PROJECTS.  THE GOVERNMENT MAY HAVE "TITLE," BUT ONLY A PAPER TITLE,
AND, WHILE IT RETAINED THE CONTROLS DESCRIBED IN THE LEASE AS A
REGULATORY MECHANISM TO PREVENT THE ORDINARY OPERATION OF UNBRIDLED
ECONOMIC FORCES, THIS DOES NOT MEAN THAT THE VALUE OF THE BUILDINGS AND
IMPROVEMENTS SHOULD THEREBY BE PARTIALLY ALLOCATED TO IT.  IF AN
ORDINARY PRIVATE HOUSING VENTURE WERE BEING ASSESSED FOR TAX PURPOSES,
THE VALUE WOULD NOT BE ALLOCATED BETWEEN AN OWNER AND THE MORTGAGE
COMPANY WHICH DOES HIS FINANCING OR BETWEEN THE OWNER AND THE STATE,
WHICH MAY FIX RENTS AND PROVIDE SERVICES.  IN THE CIRCUMSTANCES OF THIS
CASE, THEN, THE FULL VALUE OF THE BUILDINGS AND IMPROVEMENTS IS
ATTRIBUTABLE TO THE LESSEE'S INTEREST.  (FN1) 

PETITIONER FURTHER ARGUES THAT THE TAX ON THE APPLIANCES AND
FURNITURE IS INVALID BECAUSE PETITIONER OWNS THOSE ITEMS, NEVER BOUGHT
THEM FROM THE GOVERNMENT, AND THAT THEREFORE ITS INTEREST WAS NOT "MADE
OR CREATED PURSUANT TO THE PROVISIONS OF THIS ACT (THE MILITARY LEASING
ACT OF 1947)."   HERE AGAIN USING A LABEL, THAT OF "OWNER," AS
DESCRIPTIVE OF PETITIONER DOES NOT ANSWER THE QUESTION.  IT APPEARS
FROM THE RECORD THAT PETITIONER WAS REQUIRED TO SUPPLY THE APPLIANCES
FOR THE HOUSING PROJECT.  PETITIONER AND ITS TENANTS WILL HAVE FULL USE
OF THEM FOR THE LEASE PERIOD AND THEY OR THEIR REPLACEMENTS MUST BE
LEFT ON THE PROPERTY AT THE END OF THE LEASE.  PETITIONER'S INTEREST IN
THE APPLIANCES, JUST LIKE ITS INTEREST IN THE BUILDINGS, IS DETERMINED
BY ITS AGREEMENT WITH THE GOVERNMENT AND, KEEPING IN MIND THE PURPOSE
OF SEC. 6, WE INTERPRET THAT SECTION AS TREATING THESE ITEMS ALIKE. 
(FN2) 

FOR THESE REASONS THE JUDGMENT OF THE SUPREME COURT OF NEBRASKA MUST
BE AFFIRMED. 

FN1  THE RECORD BEFORE US IS UNCLEAR WHETHER THE ESTIMATED USEFUL
LIFE OF ALL THE APPLIANCES AND FURNITURE IS LESS THAN THE LEASE
PERIOD.  TO THE EXTENT THAT THE ESTIMATED USEFUL LIFE OF ANY OF THESE
ITEMS EXTENDS BEYOND THE TERM OF THE LEASE, THE VALUE ATTRIBUTABLE TO
SUCH PERIOD MUST BE EXCLUDED FROM THE TAX, SINCE IT REPRESENTS THE
GOVERNMENT'S OWNERSHIP INTEREST.  IN THE PRESENT STATE OF THE RECORD,
HOWEVER, PETITIONER'S REMEDY, IF ANY, IS IN THE NEBRASKA COURTS, NOT
HERE. 

FN2  THE RECORD DOES NOT INDICATE CLEARLY THE RELATIONSHIP OF THE
PARTIES WITH RESPECT TO THE FURNITURE - VALUED AT $205 IN THE TOTAL
1952 VALUATION OF THE TAXABLE PROPERTY AT $825,685.  THIS IS A MINOR
MATTER AND WE LEAVE PETITIONER TO SEEK REDRESS IN THE NEBRASKA COURTS
SHOULD THE INTERESTS OF THE GOVERNMENT AND PETITIONER IN THE FURNITURE
BE SIGNIFICANTLY DIFFERENT FROM THEIR INTERESTS IN THE APPLIANCES OR
BUILDINGS. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED, MR. JUSTICE BURTON,
AND MR. JUSTICE HARLAN CONCUR, DISSENTING. 

THERE ARE TWO REASONS WHY I DISSENT IN THIS CASE. 

FIRST.  THE LEGISLATIVE HISTORY OF THE WHERRY ACT MAKES IT CLEAR THAT
THE PURPOSE OF THE LEGISLATION WAS TO ENCOURAGE MILITARY PERSONNEL TO
REMAIN IN THE ARMED FORCES BY PROVIDING CLEAN, ADEQUATE, AND
INEXPENSIVE HOUSING FOR THEM.  H.R. REP. NO. 854, 81ST CONG., 1ST
SESS., PP. 2, 4; S. REP. NO. 410, 81ST CONG., 1ST SESS., PP. 2, 4-5. 
THERE IS NOTHING TO INDICATE THAT CONGRESS DEPARTED FROM THE
ESTABLISHED PRACTICE (SURPLUS TRADING CO. V. COOK, 281 U.S. 647) AND
CONSENTED TO LOCAL TAXATION ON THE FEDERAL ENCLAVES.  TAXATION BY LOCAL
AUTHORITIES OF A HOUSING PROJECT IS ONE SURE WAY OF INCREASING COST AND
HAMPERING THE FEDERAL PROGRAM.  IF THAT HAD BEEN INTENDED, I WOULD
EXPECT PLAIN LANGUAGE REVEALING THE PURPOSE.  THE COURT FINDS NO PLAIN
LANGUAGE BUT RELIES ONLY ON ADUMBRATION AND REASONING FROM ELABORATE
IMPLICATION.  YET THE "DOCTRINE OF SOVEREIGN IMMUNITY IS SO EMBEDDED IN
CONSTITUTIONAL HISTORY AND PRACTICE THAT THIS COURT CANNOT SUBJECT THE
GOVERNMENT OR ITS OFFICIAL AGENCIES TO STATE TAXATION WITHOUT A CLEAR
CONGRESSIONAL MANDATE."  KERN-LIMERICK, INC. V. SCURLOCK, 347 U.S. 110,
122. 

TO BE SURE, THE WHERRY ACT AND THE MILITARY LEASING ACT ARE
INTERTWINED AND SEC. 6 OF THE LEASING ACT MAKES THE "LESSEE'S INTEREST"
SUBJECT TO LOCAL TAXATION.  BUT THE INTERTWINING OF THE TWO ACTS IS
VERY LIMITED.  SECTION 805 OF THE WHERRY ACT AUTHORIZES THE SECRETARIES
OF THE ARMED FORCES TO MAKE LEASES UNDER THE AUTHORITY OF THE LEASING
ACT, WITHOUT REGARD TO THE LIMITATIONS IMPOSED BY IT AS RESPECTS THE
TERM OR DURATION OF THE LEASE.  BUT THE AUTHORITY TO LEASE AND THE
LIMITATIONS IMPOSED ON LEASES ARE CONTAINED IN SEC. 1 OF THE LEASING
ACT.  NOTHING IN THE LANGUAGE OF SEC. 805 REQUIRES THE BALANCE OF THE
ACT TO BE INCORPORATED.  WE STRAIN BEYOND THE NORMAL DEMANDS OF
LANGUAGE TO PULL SEC. 6 OF THE LEASING ACT INTO THE WHERRY ACT. 
TAXATION OF REAL PROPERTY ACQUIRED BY THE FEDERAL HOUSING
COMMISSIONER.  I WOULD SUPPOSE THAT IF LOCAL TAXATION IS SPECIFICALLY
ALLOWED IN ONE INSTANCE, THE WAIVER OF IMMUNITY IS LIMITED, NOT
GENERAL.  WE USURP THE FUNCTION OF THE LAWMAKERS WHEN WE HOLD TO THE
CONTRARY. 

SECOND.  EVEN IF THE WHERRY ACT BE READ AS INCLUDING SEC. 6 OF THE
LEASING ACT, WE SHOULD REBEL AT THE APPLICATION NOW GIVEN IT.  SECTION
6 OF THE LEASING ACT, IF APPLICABLE, ONLY SUBJECTS THE "LESSEE'S
INTEREST" TO LOCAL TAXATION.  YET THE COURT ALLOWS THE LOCAL TAX TO BE
PLACED ON THE ENTIRE VALUE OF THE PROPERTY.  ITS JUSTIFICATION
APPARENTLY IS THE LOW ANNUAL RENTAL CHARGED BY THE UNITED STATES TO THE
LESSEE, THE LENGTH OF THE LEASE, AND THE USEFUL LIFE OF THE BUILDINGS
AND IMPROVEMENTS.  THE "ENJOYMENT OF THE ENTIRE WORTH" OF THE PROPERTY
WILL BE THE LESSEE'S, SAYS THE COURT.  THE INTEREST OF THE FEDERAL
GOVERNMENT IS THEREFORE NOMINAL.  FOR THESE REASONS THE "LESSEE'S
INTEREST" IS HELD TO INCLUDE THE ENTIRE VALUE OF THE PROPERTY.  (FN1) 

THIS FORMALISM MISSES THE ENTIRE POINT.  THE GOVERNMENT'S STAKE HERE
CANNOT BE MEASURED BY BARE LEGAL TITLE.  IT HAS VAST AND IMPORTANT
INTERESTS IN THESE PROJECTS.  IT OWNS THE CONTROLLING STOCK IN THE
LESSEE.  IT PRESCRIBES THE MAXIMUM RENTALS.  IT DETERMINES WHAT PERSONS
MAY OCCUPY THE LIVING QUARTERS.  IT ASSUMES MOST OF THE FINANCIAL RISKS
OF THESE HOUSING PROJECTS BY INSURING THE MORTGAGEES.  IT PROVIDES
POLICE AND FIRE PROTECTION, SEWERAGE AND WATER SERVICE, AND ACCESS
ROADS.  THE UNITED STATES IS NOT A MERE LESSOR WHO, HAVING LEASED THE
PROPERTY, ALLOWS IT TO BE MANAGED BY THE LESSEE.  THE GREAT DECISIONS
AS TO MANAGEMENT ARE MADE BY THE GOVERNMENT.  THE LESSEE IS, INDEED, A
MANAGING AGENT. 

THE LEASE MAKES THE BUILDINGS AND IMPROVEMENTS PROPERTY OF THE UNITED
STATES.  THAT RESERVATION OF TITLE MAY NOT BE CHALLENGED HERE AS
COLORABLE.  SEE KERN-LIMERICK, INC. V. SCURLOCK, SUPRA, 116-123.  IT
WAS MADE TO PROTECT THE LARGE INTERESTS OF THE UNITED STATES IN LOW
COST HOUSING ON FEDERAL ENCLAVES - A PURPOSE NOW PARTIALLY DEFEATED BY
WHAT WE DO TODAY.  FOR, ONCE THE LOCAL TAXES ARE IMPOSED, THE RENTALS
TO THE SERVICEMEN RISE, UNLESS THE UNITED STATES PAYS THE BILL. 
IRONICALLY, THE RENTS RISE WITHOUT THE SERVICEMEN RECEIVING MORE
BENEFITS OF LOCAL GOVERNMENT THAN EVEN TRANSIENTS RECEIVE.  THE TAX IS
A WINDFALL TO THE LOCAL NEBRASKA AUTHORITIES AS THE FEDERAL GOVERNMENT
PROVIDES THE GOVERNMENTAL SERVICES PROTECTIVE OF THE PROPERTY TAXED. 
(FN2) 

FN1 IT IS OF INTEREST THAT AN EFFORT WAS MADE IN THE SENATE COMMITTEE
ON ARMED SERVICES TO PROVIDE IN THE LEASING ACT THAT WHEN PROPERTY WAS
LEASED BY THE GOVERNMENT THE ENTIRE VALUE BE SUBJECT TO LOCAL
TAXATION.  SEE HEARINGS, SENATE COMMITTEE ON ARMED SERVICES ON S. 1198,
80TH CONG., 1ST SESS., PP. 27-32.  BUT THAT PROPOSAL WAS REJECTED BY
THE SENATE COMMITTEE. 

FN2  UNDER THE BUCK ACT, 54 STAT. 1059, AS AMENDED, 4 U.S.C. SECS.
104-110, RESIDENTS OF MILITARY RESERVATIONS PAY STATE SALES, USE,
INCOME, AND GASOLINE TAXES. 
..END :






UNITED STATES V. STORER BROADCASTING CO. 351 U.S. 192 


NO. 94.  ARGUED FEBRUARY 28-29, 1956.  - DECIDED MAY 21, 1956.  - 95
U.S. APP. D.C. 97, 220 F.2D 204, REVERSED AND REMANDED. 


AFTER RULEMAKING PROCEEDINGS UNDER THE COMMUNICATIONS ACT OF 1934, AS
AMENDED, IN WHICH RESPONDENT APPEARED, FILED WRITTEN OBJECTIONS AND
ARGUED ORALLY, THE FEDERAL COMMUNICATIONS COMMISSION AMENDED ITS RULES
SO AS TO PROVIDE, IN EFFECT, THAT IT WOULD ISSUE NO LICENSE FOR AN
ADDITIONAL TELEVISION BROADCAST STATION TO ANY PARTY ALREADY HAVING
FIVE SUCH STATIONS.  ON THE SAME DAY, APPLYING THIS RULE, THE
COMMISSION DISMISSED, WITHOUT HEARING, RESPONDENT'S APPLICATION FOR A
LICENSE FOR AN ADDITIONAL TELEVISION BROADCAST STATION, BECAUSE
RESPONDENT ALREADY HAD FIVE SUCH STATIONS.  UNDER THE COMMUNICATIONS
ACT, THE ADMINISTRATIVE PROCEDURE ACT AND 5 U.S.C. SEC. 1034,
RESPONDENT APPLIED TO THE COURT OF APPEALS FOR REVIEW OF THE
COMMISSION'S ORDER AMENDING ITS RULE.  HELD: 

1.  THOUGH THE QUESTION OF RESPONDENT'S RIGHT TO APPEAL WAS NOT
RAISED BY EITHER PARTY OR BY THE COURT OF APPEALS, IT MAY BE CONSIDERED
BY THIS COURT.  P. 197. 

2.  RESPONDENT HAD STANDING TO BRING THIS ACTION.  PP. 198-200. 

(A)  THE PROCESS OF RULEMAKING HAVING BEEN COMPLETED, THE AMENDED
RULES CONSTITUTED FINAL AGENCY ACTION WITHIN THE MEANING OF THE
ADMINISTRATIVE PROCEDURE ACT.  PP. 198-199. 

(B)  THE AMENDED RULES PRESENTLY "AGGRIEVE" RESPONDENT.  PP. 199
200. 

3.  SECTION 309(B) OF THE COMMUNICATIONS ACT, WHICH REQUIRES A "FULL
HEARING" BEFORE DENIAL OF AN APPLICATION FOR A LICENSE, DOES NOT
PREVENT THE COMMISSION FROM ADOPTING THE RULES HERE INVOLVED LIMITING
THE NUMBER OF BROADCAST STATIONS THAT WILL BE LICENSED TO ANY ONE
PARTY.  PP. 200-206. 

(A)  SECTION 309(B) ENTITLES EACH APPLICANT FOR A LICENSE TO A "FULL
HEARING," INCLUDING THE RIGHT TO PRESENT HIS CASE OR DEFENSE BY ORAL OR
DOCUMENTARY EVIDENCE, TO SUBMIT REBUTTAL EVIDENCE, AND TO CONDUCT SUCH
CROSS-EXAMINATION AS MAY BE REQUIRED FOR A FULL AND TRUE DISCLOSURE OF
THE FACTS.  P. 202. 

(B)  HOWEVER, SEC. 309(B) DOES NOT WITHDRAW FROM THE COMMISSION THE
RULEMAKING AUTHORITY NECESSARY FOR THE ORDERLY CONDUCT OF ITS
BUSINESS.  PP. 202-203. 

(C)  NOR DOES SEC. 309(B) BAR RULES THAT DECLARE A PRESENT INTENT TO
LIMIT THE NUMBER OF STATIONS CONSISTENT WITH A PERMISSIBLE
"CONCENTRATION OF CONTROL."  PP. 203-205. 

(D)  THE ACT AND RULES ARE TO BE READ AS PROVIDING A "FULL HEARING"
FOR APPLICANTS WHO HAVE REACHED THE EXISTING LIMIT OF STATIONS, UPON
PRESENTATION OF PROPER APPLICATIONS THAT SET OUT ADEQUATE REASONS WHY
THE RULES SHOULD BE WAIVED OR AMENDED.  THE ACT, CONSIDERED AS A WHOLE,
REQUIRES NO MORE.  P. 205. 

UNITED STATES ET AL. V. STORER BROADCASTING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL COMMUNICATIONS COMMISSION ISSUED, ON AUGUST 19, 1948, A
NOTICE OF PROPOSED RULEMAKING UNDER THE AUTHORITY OF 47 U.S.C. SECS.
303(R), 311, 313 AND 314 (COMMUNICATIONS ACT OF 1934, AS AMENDED, 47
U.S.C. SEC. 301 ET SEQ.).  IT WAS PROPOSED, SO FAR AS IS PERTINENT TO
THIS CASE, TO AMEND RULES 3.35, 3.240 AND 3.636 RELATING TO MULTIPLE
OWNERSHIP OF STANDARD, FM AND TELEVISION BROADCAST STATIONS.  THOSE
RULES PROVIDE THAT LICENSES FOR BROADCASTING STATIONS WILL NOT BE
GRANTED IF THE APPLICANT, DIRECTLY OR INDIRECTLY, HAS AN INTEREST IN
OTHER STATIONS BEYOND A LIMITED NUMBER.   THE PURPOSE OF THE
LIMITATIONS IS TO AVOID OVERCONCENTRATION OF BROADCASTING FACILITIES. 

AS REQUIRED BY 5 U.S.C. SEC. 1003(B), THE NOTICE PERMITTED
"INTERESTED" PARTIES TO FILE STATEMENTS OR BRIEFS.  SUCH PARTIES MIGHT
ALSO INTERVENE IN APPEALS.  47 U.S.C.  SEC. 402(D) AND (E). 
RESPONDENT, LICENSEE OF A NUMBER OF RADIO AND TELEVISION STATIONS,
FILED A STATEMENT OBJECTING TO THE PROPOSED CHANGES, AS DID OTHER
INTERESTED BROADCASTERS.  RESPONDENT BASED ITS OBJECTIONS LARGELY ON
THE FACT THAT THE PROPOSED RULES DID NOT ALLOW ONE PERSON TO HOLD AS
MANY FM AND TELEVISION STATIONS AS STANDARD STATIONS.  STORER ARGUED
THAT SUCH LIMITATIONS MIGHT CAUSE IRREPARABLE FINANCIAL DAMAGE TO
OWNERS OF STANDARD STATIONS IF AN OBSOLESCENT STANDARD STATION COULD
NOT BE AUGMENTED BY FM AND TELEVISION FACILITIES. 

IN NOVEMBER 1953 THE COMMISSION ENTERED AN ORDER AMENDING THE RULES
IN QUESTION WITHOUT SIGNIFICANT CHANGES FROM THE PROPOSED FORMS.  (FN1)
A REVIEW WAS SOUGHT IN DUE COURSE BY RESPONDENT IN THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT UNDER 5 U.S.C.  SEC. 1034,
(FN2) 47 U.S.C. SEC. 402(A), (FN3) AND 5 U.S.C. SEC. 1009(A), (C). 
(FN4)  RESPONDENT ALLEGED IT OWNED OR CONTROLLED, WITHIN THE MEANING OF
THE MULTIPLE OWNERSHIP RULES, SEVEN STANDARD RADIO, FIVE FM RADIO AND
FIVE TELEVISION BROADCAST STATIONS.  IT ASSERTED THAT THE RULES
COMPLAINED OF WERE IN CONFLICT WITH THE STATUTORY MANDATES THAT
APPLICANTS SHOULD BE GRANTED LICENSES IF THE PUBLIC INTEREST WOULD BE
SERVED AND THAT APPLICANTS MUST HAVE A HEARING BEFORE DENIAL OF AN
APPLICATION.  47 U.S.C. SEC. 309(A) AND (B).  (FN5)  RESPONDENT ALSO
CLAIMED: 

"THE RULES, IN CONSIDERING THE OWNERSHIP OF ONE (1%) PER CENT OR MORE
OF THE VOTING STOCK OF A BROADCAST LICENSEE CORPORATION AS EQUIVALENT
TO OWNERSHIP, OPERATION OR CONTROL OF THE STATION, ARE UNREASONABLE AND
BEAR NO RATIONAL RELATIONSHIP TO THE NATIONAL ANTI-TRUST POLICY." 

THIS LATTER CLAIM WAS IMPORTANT TO RESPONDENT BECAUSE ALLEGEDLY 20%
OF ITS VOTING STOCK WAS IN SCATTERED OWNERSHIP AND WAS TRADED IN BY
LICENSED DEALERS.  THIS STOCK WAS BEYOND ITS CONTROL. 

RESPONDENT ASSERTED IT WAS A "PARTY AGGRIEVED" AND A "PERSON
SUFFERING LEGAL WRONG" OR ADVERSELY AFFECTED UNDER THE SEVERAL STATUTES
THAT AUTHORIZE REVIEW OF FCC ACTION.  SEE NOTES 2, 3 AND 4, SUPRA.  IT
STATED ITS INJURIES FROM THE RULES THUS: 

"STORER IS ADVERSELY AFFECTED AND AGGRIEVED BY THE ORDER OF THE
COMMISSION ADOPTED ON NOVEMBER 25, 1953, AMENDING THE MULTIPLE
OWNERSHIP RULES, IN THAT: 

"(A)  STORER IS DENIED THE RIGHT OF A FULL AND FAIR HEARING TO
DETERMINE WHETHER ITS OWNERSHIP OF AN INTEREST IN MORE THAN SEVEN (7)
STANDARD RADIO AND FIVE (5) TELEVISION BROADCAST STATIONS, IN LIGHT OF
AND UPON SHOWING OF ALL MATERIAL CIRCUMSTANCES, WILL THEREBY SERVE THE
PUBLIC INTEREST, CONVENIENCE AND NECESSITY. 

"(B)  THE ACQUISITION OF STORER'S VOTING STOCK BY THE PUBLIC UNDER
CIRCUMSTANCES BEYOND THE CONTROL OF STORER, MAY AND COULD BE VIOLATIVE
OF THE MULTIPLE OWNERSHIP RULES, AS AMENDED, AND RESULT IN A FORFEITURE
OF LICENSES NOW HELD BY STORER, WITH RESULTANT LOSS AND INJURY TO
STORER AND TO ALL OTHER STORER STOCKHOLDERS." 

ON THE DAY THE AMENDMENTS TO THE RULES WERE ADOPTED, A PENDING
APPLICATION OF STORER FOR AN ADDITIONAL TELEVISION STATION AT MIAMI WAS
DISMISSED ON THE BASIS OF THE RULES. 

WHILE THE QUESTION OF RESPONDENT'S RIGHT TO APPEAL HAS NOT BEEN
RAISED BY EITHER PARTY OR BY THE COURT OF APPEALS, OUR JURISDICTION IS
NOW MOOTED.  IT MAY BE CONSIDERED.  FEDERAL COMMUNICATIONS COMM'N V.
NATIONAL BROADCASTING CO., 319 U.S. 239, 246.  JURISDICTION DEPENDS
UPON STANDING TO SEEK REVIEW AND UPON RIPENESS.  IF RESPONDENT COULD
NOT RIGHTFULLY SEEK REVIEW FROM THE ORDER ADOPTING THE CHALLENGED
REGULATIONS, IT MUST AWAIT ACTION TO ITS DISADVANTAGE UNDER THEM, AND
NEITHER THE COURT OF APPEALS NOR THIS COURT HAS JURISDICTION OF THE
CONTROVERSY.  UNDER THE ABOVE-CITED CODE SECTIONS, REVIEW OF COMMISSION
ACTION IS GRANTED ANY PARTY AGGRIEVED OR SUFFERING LEGAL WRONG BY THAT
ACTION.  (FN6) 

WE THINK RESPONDENT HAD STANDING TO SUE AT THE TIME IT EXERCISED ITS
PRIVILEGE.  THE PROCESS OF RULEMAKING WAS COMPLETE.  IT WAS FINAL
AGENCY ACTION, 5 U.S.C. SEC. 1001(C) AND (G), BY WHICH STORER CLAIMED
TO BE "AGGRIEVED."  WHEN THE AUTHORITY TO APPEAL WAS SUBSTANTIALLY THE
SAME, WE HELD THAT AN APPELLANT WHO COMPLAINED OF THE GRANT OF A
LICENSE TO A COMPETITOR BECAUSE IT WOULD REDUCE ITS OWN INCOME HAD
STANDING TO APPEAL AGAINST A CONTENTION, ADMITTEDLY SOUND, THAT SUCH
ECONOMIC INJURY TO APPELLANT WAS NOT A PROPER ISSUE BEFORE THE
COMMISSION.  WE SAID: 

"CONGRESS HAD SOME PURPOSE IN ENACTING SEC. 402(B)(2).  IT MAY HAVE
BEEN OF OPINION THAT ONE LIKELY TO BE FINANCIALLY INJURED BY THE ISSUE
OF A LICENSE WOULD BE THE ONLY PERSON HAVING A SUFFICIENT INTEREST TO
BRING TO THE ATTENTION OF THE APPELLATE COURT ERRORS OF LAW IN THE
ACTION OF THE COMMISSION IN GRANTING THE LICENSE.  IT IS WITHIN THE
POWER OF CONGRESS TO CONFER SUCH STANDING TO PROSECUTE AN APPEAL." 
FEDERAL COMMUNICATIONS COMM'N V. SANDERS RADIO STATION, 309 U.S. 470,
477. 

WE ADDED THAT SUCH AN APPELLANT COULD RAISE ANY RELEVANT QUESTION OF
LAW IN RESPECT TO THE ORDER. 

AGAIN IN COLUMBIA BROADCASTING SYSTEM V. UNITED STATES, 316 U.S. 407,
THIS COURT CONSIDERED THE PROBLEM OF STANDING TO REVIEW COMMISSION
ACTION UNDER THE THEN EXISTING SEC. 402(A), 48 STAT. 1093, AND THE
URGENT DEFICIENCIES ACT, 38 STAT. 219.  CBS THERE SOUGHT REVIEW OF THE
ADOPTION OF CHAIN BROADCASTING REGULATIONS BY THE COMMISSION.  AGAINST
THE CONTENTION THAT THE ADOPTION OF REGULATIONS DID NOT COMMAND CBS TO
DO OR REFRAIN FROM DOING ANYTHING (DISSENT 316 U.S., AT 429), THIS
COURT HELD THAT THE ORDER PROMULGATING REGULATIONS WAS REVIEWABLE
BECAUSE IT PRESENTLY AFFECTED EXISTING CONTRACTUAL RELATIONSHIPS.  IT
SAID: 

"THE REGULATIONS ARE NOT ANY THE LESS REVIEWABLE BECAUSE THEIR
PROMULGATION DID NOT OPERATE OF THEIR OWN FORCE TO DENY OR CANCEL A
LICENSE.  IT IS ENOUGH THAT FAILURE TO COMPLY WITH THEM PENALIZES
LICENSEES, AND APPELLANT, WITH WHOM THEY CONTRACT.  IF AN
ADMINISTRATIVE ORDER HAS THAT EFFECT IT IS REVIEWABLE AND IT DOES NOT
CEASE TO BE SO MERELY BECAUSE IT IS NOT CERTAIN WHETHER THE COMMISSION
WILL INSTITUTE PROCEEDINGS TO ENFORCE THE PENALTY INCURRED UNDER ITS
REGULATIONS FOR NONCOMPLIANCE."  ID., AT 417-418. 

THE COURT SAID THAT THE REGULATIONS "PRESENTLY DETERMINE RIGHTS." 
ID., AT 421. 

"APPELLANT'S STANDING TO MAINTAIN THE PRESENT SUIT IN EQUITY IS
UNAFFECTED BY THE FACT THAT THE REGULATIONS ARE NOT DIRECTED TO
APPELLANT AND DO NOT IN TERMS COMPEL ACTION BY IT OR IMPOSE PENALTIES
UPON IT BECAUSE OF ITS ACTION OR FAILURE TO ACT.  IT IS ENOUGH THAT, BY
SETTING THE CONTROLLING STANDARDS FOR THE COMMISSION'S ACTION, THE
REGULATIONS PURPORT TO OPERATE TO ALTER AND AFFECT ADVERSELY
APPELLANT'S CONTRACTUAL RIGHTS AND BUSINESS RELATIONS WITH STATION
OWNERS WHOSE APPLICATIONS FOR LICENSES THE REGULATIONS WILL CAUSE TO BE
REJECTED AND WHOSE LICENSES THE REGULATIONS MAY CAUSE TO BE REVOKED." 
ID., AT 422. 

SEE FEDERAL COMMUNICATIONS COMM'N V. AMERICAN BROADCASTING CO., 347
U.S. 284, 289, AND EL DORADO OIL WORKS V. UNITED STATES, 328 U.S. 12,
18-19. 

THE REGULATIONS HERE UNDER CONSIDERATION PRESENTLY AGGRIEVE THE
RESPONDENT.  THE COMMISSION EXERCISED A POWER OF RULEMAKING WHICH
CONTROLS BROADCASTERS.  THE RULES NOW OPERATE TO CONTROL THE BUSINESS
AFFAIRS OF STORER.  UNLESS IT OBTAINS A MODIFICATION OF THIS DECLARED
ADMINISTRATIVE POLICY, STORER CANNOT ENLARGE THE NUMBER OF ITS STANDARD
OR FM STATIONS.  IT SEEMS, TOO, THAT THE NOTE TO RULE 3.636 (N. 1,
SUPRA) ENDANGERS STORER'S STATIONS AS ALLEGED IN ITS PETITION FOR
REVIEW.  SEE THIS OPINION, SUPRA, P. 197, AT (B).  COMMISSION HEARINGS
ARE AFFECTED NOW BY THE RULES.  STORER CANNOT COGENTLY PLAN ITS PRESENT
OR FUTURE OPERATIONS.  (FN7)  IT CANNOT PLAN TO ENLARGE THE NUMBER OF
ITS STANDARD OR FM STATIONS, AND AT ANY MOMENT THE PURCHASE OF STORER'S
VOTING STOCK BY SOME MEMBER OF THE PUBLIC COULD ENDANGER ITS EXISTING
STRUCTURE.  THESE ARE GRIEVANCES PRESENTLY RESTRICTING STORER'S
OPERATIONS.  IN THE LIGHT OF THE LEGISLATION ALLOWING REVIEW OF THE
COMMISSION'S ACTIONS, WE HOLD THAT STORER HAS STANDING TO BRING THIS
ACTION. 

IN ITS PETITION FOR REVIEW STORER PRAYED THE COURT TO VACATE THE
PROVISIONS OF THE MULTIPLE OWNERSHIP RULES INSOFAR AS THEY DENIED TO AN
APPLICANT ALREADY CONTROLLING THE ALLOWABLE NUMBER OF STATIONS A "FULL
AND FAIR HEARING" TO DETERMINE WHETHER ADDITIONAL LICENSES TO THE
APPLICANT WOULD BE IN THE PUBLIC INTEREST.  (FN8)  THE COURT OF APPEALS
STRUCK OUT, AS CONTRARY TO SEC. 309(A) AND (B) OF THE COMMUNICATIONS
ACT (N. 5, SUPRA), THE WORDS ITALICIZED IN RULE 3.636 (N. 1, SUPRA) AND
THE SIMILAR WORDS IN RULES 3.35 AND 3.240.  THE CASE WAS REMANDED TO
THE COMMISSION WITH DIRECTIONS TO ELIMINATE THESE WORDS.  95 U.S. APP.
D.C. 97, 220 F.2D 204.  WE GRANTED CERTIORARI.  350 U.S. 816. 

THE COMMISSION ASSERTS THAT ITS POWER TO MAKE REGULATIONS GIVES IT
THE AUTHORITY TO LIMIT CONCENTRATION OF STATIONS UNDER A SINGLE
CONTROL.  (FN9)  IT ARGUES THAT RULES MAY GO BEYOND THE TECHNICAL
ASPECTS OF RADIO, THAT RULES MAY VALIDLY GIVE CONCRETENESS TO A
STANDARD OF PUBLIC INTEREST, AND THAT THE RIGHT TO A HEARING DOES NOT
EXIST WHERE AN APPLICANT ADMITTEDLY DOES NOT MEET THOSE STANDARDS AS
THERE WOULD BE NO FACTS TO ASCERTAIN.  THE COMMISSION SHOWS THAT ITS
REGULATIONS PERMIT APPLICANTS TO SEEK AMENDMENTS AND WAIVERS OF OR
EXCEPTIONS TO ITS RULES.  (FN10)  IT ADDS: 

"THIS DOES NOT MEAN, OF COURSE, THAT THE MERE FILING OF AN
APPLICATION FOR A WAIVER  ...  WOULD NECESSARILY REQUIRE THE HOLDING OF
A HEARING, FOR IF THAT WERE THE CASE A RULE WOULD NO LONGER BE A RULE. 
IT MEANS ONLY THAT IT MIGHT BE AN ABUSE OF DISCRETION TO FAIL TO HEAR A
REQUEST FOR A WAIVER WHICH SHOWED, ON ITS FACE, THE EXISTENCE OF
CIRCUMSTANCES MAKING APPLICATION OF THE RULE INAPPROPRIATE." 

RESPONDENT DEFENDS THE POSITION OF THE COURT OF APPEALS.  IT URGES
THAT AN APPLICATION CANNOT BE REJECTED UNDER 47 U.S.C. SEC. 309 WITHOUT
A "FULL HEARING" TO APPLICANT.  WE AGREE THAT A "FULL HEARING" UNDER
SEC. 309 MEANS THAT EVERY PARTY SHALL HAVE THE RIGHT TO PRESENT HIS
CASE OR DEFENSE BY ORAL OR DOCUMENTARY EVIDENCE, TO SUBMIT REBUTTAL
EVIDENCE, AND TO CONDUCT SUCH CROSS-EXAMINATION AS MAY BE REQUIRED FOR
A FULL AND TRUE DISCLOSURE OF THE FACTS.  CF. 5 U.S.C. SEC. 1006(C). 
SUCH A HEARING IS ESSENTIAL FOR WISE AND JUST APPLICATION OF THE
AUTHORITY OF ADMINISTRATIVE BOARDS AND AGENCIES. 

WE DO NOT READ THE HEARING REQUIREMENT, HOWEVER, AS WITHDRAWING FROM
THE POWER OF THE COMMISSION THE RULEMAKING AUTHORITY NECESSARY FOR THE
ORDERLY CONDUCT OF ITS BUSINESS.  AS CONCEDED BY STORER, "SECTION
309(B) DOES NOT REQUIRE THE COMMISSION TO HOLD A HEARING BEFORE DENYING
A LICENSE TO OPERATE A STATION IN WAYS CONTRARY TO THOSE THAT THE
CONGRESS HAS DETERMINED ARE IN THE PUBLIC INTEREST."  (FN11)  THE
CHALLENGED RULES CONTAIN LIMITATIONS AGAINST LICENSING NOT SPECIFICALLY
AUTHORIZED BY STATUTE.  BUT THAT IS NOT THE LIMIT OF THE COMMISSION'S
RULEMAKING AUTHORITY.  47 U.S.C. SEC. 154(I) AND SEC.  303(R) GRANT
GENERAL RULEMAKING POWER NOT INCONSISTENT WITH THE ACT OF LAW. 

THIS COMMISSION, LIKE OTHER AGENCIES, DEALS WITH THE PUBLIC
INTEREST.  SCRIPPS-HOWARD RADIO V. FEDERAL COMMUNICATIONS COMM'N, 316
U.S. 4, 14.  ITS AUTHORITY COVERS NEW AND RAPIDLY DEVELOPING FIELDS. 
CONGRESS SOUGHT TO CREATE REGULATION FOR PUBLIC PROTECTION WITH CAREFUL
PROVISION TO ASSURE FAIR OPPORTUNITY FOR OPEN COMPETITION IN THE USE OF
BROADCASTING FACILITIES.  ACCORDINGLY, WE CANNOT INTERPRET SEC. 309(B)
AS BARRING RULES THAT DECLARE A PRESENT INTENT TO LIMIT THE NUMBER OF
STATIONS CONSISTENT WITH A PERMISSIBLE "CONCENTRATION OF CONTROL."  IT
IS BUT A RULE THAT ANNOUNCES THE COMMISSION'S ATTITUDE ON PUBLIC
PROTECTION AGAINST SUCH CONCENTRATION.  (FN12)  THE COMMUNICATIONS ACT
MUST BE READ AS A WHOLE AND WITH APPRECIATION OF THE RESPONSIBILITIES
OF THE BODY CHARGED WITH ITS FAIR AND EFFICIENT OPERATION.  THE GROWING
COMPLEXITY OF OUR ECONOMY INDUCED THE CONGRESS TO PLACE REGULATION OF
BUSINESSES LIKE COMMUNICATION IN SPECIALIZED AGENCIES WITH BROAD
POWERS.  COURTS ARE SLOW TO INTERFERE WITH THEIR CONCLUSIONS WHEN
RECONCILABLE WITH STATUTORY DIRECTIONS.  (FN13) WE THINK THE MULTIPLE
OWNERSHIP RULES, AS ADOPTED, ARE RECONCILABLE WITH THE COMMUNICATIONS
ACT AS A WHOLE.  AN APPLICANT FILES HIS APPLICATION WITH KNOWLEDGE OF
THE COMMISSION'S ATTITUDE TOWARD CONCENTRATION OF CONTROL.    IN
NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, SIMILAR RULES
PROHIBITING CERTAIN METHODS OF CHAIN BROADCASTING WERE UPHELD DESPITE A
CLAIM THAT THE RULES CAUSED LICENSES TO BE DENIED WITHOUT "EXAMINATION
OF WRITTEN APPLICATIONS PRESENTED  ...  AS REQUIRED BY SECS. 308 AND
309."  ID., AT 230.  (FN14)  THE NATIONAL BROADCASTING CASE VALIDATED
NUMEROUS REGULATIONS COUCHED IN THE PROHIBITORY LANGUAGE OF THE PRESENT
REGULATIONS.  THE ONE IN THE MARGIN WILL SERVE AS AN EXAMPLE.  (FN15) 

IN THE NATIONAL BROADCASTING CASE WE CALLED ATTENTION TO THE
NECESSITY FOR FLEXIBILITY IN THE RULES THERE INVOLVED.  THE "COMMISSION
PROVIDED THAT 'NETWORKS WILL BE GIVEN FULL OPPORTUNITY, ON PROPER
APPLICATION FOR NEW FACILITIES OR RENEWAL OF EXISTING LICENSES, TO CALL
TO OUR ATTENTION ANY REASONS WHY THE PRINCIPLE SHOULD BE MODIFIED OR
HELD INAPPLICABLE.'"  ID., AT 207.  WE SAID: 

"THE COMMISSION THEREFORE DID NOT BIND ITSELF INFLEXIBLY TO THE
LICENSING POLICIES EXPRESSED IN THE REGULATIONS.  IN EACH CASE THAT
COMES BEFORE IT THE COMMISSION MUST STILL EXERCISE AN ULTIMATE JUDGMENT
WHETHER THE GRANT OF A LICENSE WOULD SERVE THE 'PUBLIC INTEREST,
CONVENIENCE, OR NECESSITY.'  IF TIME AND CHANGING CIRCUMSTANCES REVEAL
THAT THE 'PUBLIC INTEREST' IS NOT SERVED BY APPLICATION OF THE
REGULATIONS, IT MUST BE ASSUMED THAT THE COMMISSION WILL ACT IN
ACCORDANCE WITH ITS STATUTORY OBLIGATIONS."  ID., AT 225. 

THAT FLEXIBILITY IS HERE UNDER THE PRESENT SEC. 309(A) AND (B) AND
THE FCC'S REGULATIONS.  SEE N. 10, SUPRA.  WE READ THE ACT AND
REGULATIONS AS PROVIDING A "FULL HEARING" FOR APPLICANTS WHO HAVE
REACHED THE EXISTING LIMIT OF STATIONS, UPON THEIR PRESENTATION OF
APPLICATIONS CONFORMING TO RULES 1.361(C) AND 1.702, THAT SET OUT
ADEQUATE REASONS WHY THE RULES SHOULD BE WAIVED OR AMENDED.  THE ACT,
CONSIDERED AS A WHOLE, REQUIRES NO MORE.  WE AGREE WITH THE CONTENTION
OF THE COMMISSION THAT A FULL HEARING, SUCH AS IS REQUIRED BY SEC.
309(B), N. 5, SUPRA, WOULD NOT BE NECESSARY ON ALL SUCH APPLICATIONS. 
AS THE COMMISSION HAS PROMULGATED ITS RULES AFTER EXTENSIVE
ADMINISTRATIVE HEARINGS, IT IS NECESSARY FOR THE ACCOMPANYING PAPERS TO
SET FORTH REASONS, SUFFICIENT IF TRUE, TO JUSTIFY A CHANGE OR WAIVER OF
THE RULES.  WE DO NOT THINK CONGRESS INTENDED THE COMMISSION TO WASTE
TIME ON APPLICATIONS THAT DO NOT STATE A VALID BASIS FOR A HEARING.  IF
ANY APPLICANT IS AGGRIEVED BY A REFUSAL, THE WAY FOR REVIEW IS OPEN. 

WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND THE CASE
TO THAT COURT SO THAT IT MAY CONSIDER RESPONDENT'S OTHER OBJECTIONS TO
THE MULTIPLE OWNERSHIP RULES.  REVERSED AND REMANDED. 

FN1  SECTION 3.636 WILL ILLUSTRATE THE PROBLEM: 

"SEC. 3.636 MULTIPLE OWNERSHIP.  (A)  NO LICENSE FOR A TELEVISION
BROADCAST STATION SHALL BE GRANTED TO ANY PARTY (INCLUDING ALL PARTIES
UNDER COMMON CONTROL) IF: 

"(1)  SUCH PARTY DIRECTLY OR INDIRECTLY OWNS, OPERATES, OR CONTROLS
ANOTHER TELEVISION BROADCAST STATION WHICH SERVES SUBSTANTIALLY THE
SAME AREA; OR: 

"(2)  SUCH PARTY, OR ANY STOCKHOLDER, OFFICER OR DIRECTOR OF SUCH
PARTY, DIRECTLY OR INDIRECTLY OWNS, OPERATES, CONTROLS, OR HAS ANY
INTEREST IN, OR IS AN OFFICER OR DIRECTOR OF ANY OTHER TELEVISION
BROADCAST STATION IF THE GRANT OF SUCH LICENSE WOULD RESULT IN A
CONCENTRATION OF CONTROL OF TELEVISION BROADCASTING IN A MANNER
INCONSISTENT WITH PUBLIC INTEREST, CONVENIENCE, OR NECESSITY.   IN
DETERMINING WHETHER THERE IS SUCH A CONCENTRATION OF CONTROL,
CONSIDERATION WILL BE GIVEN TO THE FACTS OF EACH CASE WITH PARTICULAR
REFERENCE TO SUCH FACTORS AS THE SIZE, EXTENT AND LOCATION OF AREAS
SERVED, THE NUMBER OF PEOPLE SERVED, AND THE EXTENT OF OTHER
COMPETITIVE SERVICE TO THE AREAS IN QUESTION.   THE COMMISSION,
HOWEVER, WILL IN ANY EVENT CONSIDER THAT THERE WOULD BE SUCH A
CONCENTRATION OF CONTROL CONTRARY TO THE PUBLIC INTEREST, CONVENIENCE
OR NECESSITY FOR ANY PARTY OR ANY OF ITS STOCKHOLDERS, OFFICERS OR
DIRECTORS TO HAVE A DIRECT OR INDIRECT INTEREST IN, OR BE STOCKHOLDERS,
OFFICERS, OR DIRECTORS OF, MORE THAN FIVE TELEVISION BROADCAST
STATIONS."* 

*"IN APPLYING THE PROVISIONS OF PARAGRAPH (A) OF THIS SECTION TO THE
STOCKHOLDERS OF A CORPORATION WHICH HAS MORE THAN 50 VOTING
STOCKHOLDERS, ONLY THOSE STOCKHOLDERS NEED BE CONSIDERED WHO ARE
OFFICERS OR DIRECTORS OR WHO DIRECTLY OR INDIRECTLY OWN 1 PER CENT OR
MORE OF THE OUTSTANDING VOTING STOCK."  47 CFR, REV. 1953. 

THE STANDARD AND FM RULES LIMITED STATIONS TO SEVEN. 

FN2  "ANY PARTY AGGRIEVED BY A FINAL ORDER REVIEWABLE UNDER THIS
CHAPTER MAY, WITHIN SIXTY DAYS AFTER ENTRY OF SUCH ORDER, FILE IN THE
COURT OF APPEALS, WHEREIN THE VENUE AS PRESCRIBED BY SECTION 1033 OF
THIS TITLE LIES, A PETITION TO REVIEW SUCH ORDER  ...  ." 

FN3  "(A)  ANY PROCEEDING TO ENJOIN, SET ASIDE, ANNUL, OR SUSPEND ANY
ORDER OF THE COMMISSION UNDER THIS CHAPTER (EXCEPT THOSE APPEALABLE
UNDER SUBSECTION (B) OF THIS SECTION) SHALL BE BROUGHT AS PROVIDED BY
AND IN THE MANNER PRESCRIBED IN CHAPTER 19A OF TITLE 5." 

FN4  "EXCEPT SO FAR AS (1) STATUTES PRECLUDE JUDICIAL REVIEW OR (2)
AGENCY ACTION IS BY LAW COMMITTED TO AGENCY DISCRETION: 

"(A)  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. 

 *         *         *         *         * 

"(C)  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  ...  ." 

FN5  47 U.S.C. SEC. 309: 

"(A)  EXAMINATION; ACTION BY COMMISSION. 

"IF UPON EXAMINATION OF ANY APPLICATION PROVIDED FOR IN SECTION 308
OF THIS TITLE THE COMMISSION SHALL FIND THAT PUBLIC INTEREST,
CONVENIENCE, AND NECESSITY WOULD BE SERVED BY THE GRANTING THEREOF, IT
SHALL GRANT SUCH APPLICATION. 

"(B)  NOTIFICATION OF DENIAL; CONTENTS; REPLY; HEARING;
INTERVENTION. 

"IF UPON EXAMINATION OF ANY SUCH APPLICATION THE COMMISSION IS UNABLE
TO MAKE THE FINDING SPECIFIED IN SUBSECTION (A) OF THIS SECTION, IT
SHALL FORTHWITH NOTIFY THE APPLICANT AND OTHER KNOWN PARTIES IN
INTEREST OF THE GROUNDS AND REASONS FOR ITS INABILITY TO MAKE SUCH
FINDING  ...  . FOLLOWING SUCH NOTICE, THE APPLICANT SHALL BE GIVEN AN
OPPORTUNITY TO REPLY.  IF THE COMMISSION, AFTER CONSIDERING SUCH REPLY,
SHALL BE UNABLE TO MAKE THE FINDING SPECIFIED IN SUBSECTION (A) OF THIS
GROUNDS OR REASONS THEN OBTAINING AND SHALL NOTIFY THE APPLICANT  ...
SPECIFYING WITH PARTICULARITY THE MATTERS AND THINGS IN ISSUE  ...  .
ANY HEARING SUBSEQUENTLY HELD UPON SUCH APPLICATION SHALL BE A FULL
HEARING IN WHICH THE APPLICANT AND ALL OTHER PARTIES IN INTEREST SHALL
BE PERMITTED TO PARTICIPATE BUT IN WHICH BOTH THE BURDEN OF PROCEEDING
WITH THE INTRODUCTION OF EVIDENCE UPON ANY ISSUE SPECIFIED BY THE
COMMISSION, AS WELL AS THE BURDEN OF PROOF UPON ALL SUCH ISSUES, SHALL
BE UPON THE APPLICANT." 

FN6  LEGAL WRONG, AS A GROUND FOR STANDING TO APPEAL, WAS INTRODUCED
BY THE ADMINISTRATIVE PROCEDURE ACT, SEC. 10(A).  60 STAT. 243.  IN
EXPLANATION THE REPORTS OF THE SENATE, NO. 752, 79TH CONG., 1ST SESS.
26, AND THE HOUSE, NO. 1980, 79TH CONG., 2D SESS. 42, DEFINE "LEGAL
WRONG": 

"THE PHRASE 'LEGAL WRONG' MEANS SUCH A WRONG AS IS SPECIFIED IN
EFFECT MUST BE SHOWN IN ORDER TO PREVAIL - THAT IS, THAT THE ADVERSE
EFFECT MUST BE AN ILLEGAL EFFECT." 

ANY ACTION  ...  (3) CONTRARY TO STATUTES OR STATUTORY RIGHT."  SECTION
10(E) OF THE ACT IS NOW IN SUBSTANTIALLY THE SAME LANGUAGE.  5 U.S.C.
SEC. 1009(E). 

FN7  CF. FROZEN FOOD EXPRESS V. UNITED STATES, 351 U.S. 40, 43-44. 

FN8  STORER ALSO ATTACKED THE 1% OWNERSHIP PROVISION THAT APPEARS AS
A NOTE TO RULE 3.636, N. 1, SUPRA.  THIS WAS NOT PASSED UPON BY THE
COURT OF APPEALS.  95 U.S. APP.  D.C. 97, 220 F.2D 204.  ITS JUDGMENT
LEAVES THAT PORTION OF THE RULE UNAFFECTED.  AS THERE WAS NO CROSS
PETITION FOR CERTIORARI, WE LEAVE OPEN THE QUESTION OF ITS VALIDITY. 

FN9  "THE COMMISSION MAY PERFORM ANY AND ALL ACTS, MAKE SUCH RULES
AND REGULATIONS, AND ISSUE SUCH ORDERS, NOT INCONSISTENT WITH THIS
CHAPTER, AS MAY BE NECESSARY IN THE EXECUTION OF ITS FUNCTIONS."  47
U.S.C. SEC. 154(I). 

"EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER, THE COMMISSION FROM
TIME TO TIME, AS PUBLIC CONVENIENCE, INTEREST, OR NECESSITY REQUIRES,
SHALL: 

     *         * *         *         * 

"(F)  MAKE SUCH REGULATIONS NOT INCONSISTENT WITH LAW AS IT MAY DEEM
NECESSARY TO PREVENT INTERFERENCE BETWEEN STATIONS AND TO CARRY OUT THE
PROVISIONS OF THIS CHAPTER:  ...  . 

     *         *         *         *   * 

"(R)  MAKE SUCH RULES AND REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS
AND CONDITIONS, NOT INCONSISTENT WITH LAW, AS MAY BE NECESSARY TO CARRY
OUT THE PROVISIONS OF THIS CHAPTER,  ...  ."  47 U.S.C. SEC. 303. 

FN10  47 CFR, REV. 1953, SEC. 1.361(C): 

"(C)  APPLICATIONS WHICH, BECAUSE OF THE NATURE OF THE PARTICULAR
RULE, REGULATION, OR REQUIREMENT INVOLVED, ARE PATENTLY NOT IN
ACCORDANCE WITH THE COMMISSION'S RULES, REGULATIONS, OR OTHER
REQUIREMENTS WILL BE CONSIDERED DEFECTIVE AND WILL BE DISMISSED UNLESS
ACCOMPANIED BY A REQUEST OF THE APPLICANT FOR WAIVER OF, OR EXCEPTION
TO, ANY RULE, REGULATION, OR REQUIREMENT WITH WHICH THE APPLICATION IS
IN CONFLICT.  SUCH REQUESTS SHALL SHOW THE NATURE OF THE WAIVER OR
EXCEPTION DESIRED AND SET FORTH THE REASONS IN SUPPORT THEREOF." 


"PETITION FOR AMENDMENT OR WAIVER OF RULES.  ANY INTERESTED PERSON
MAY PETITION FOR ISSUANCE, AMENDMENT, REPEAL OR WAIVER OF ANY RULE OR
REGULATION.  SUCH PETITION SHALL SHOW THE TEXT OF THE PROPOSED RULE, OR
ITS CHANGE, AND SET FORTH THE REASON IN SUPPORT OF THE PETITION." 

SEE ALSO 47 CFR, 1941 SUPP., SECS. 1.72, 1.81. 

FN11  SEE 47 U.S.C. SECS. 310 AND 311.  CF. ASHBACKER RADIO CORP. V.
FEDERAL COMMUNICATIONS COMM'N, 326 U.S. 327, 333, N. 9; AND 47 CFR,
REV. 1953, SEC. 1.724; FELMAN V. UNITED STATES, 339 U.S. 973; FEDERAL
COMMUNICATIONS COMM'N V. AMERICAN BROADCASTING CO., 347 U.S. 284. 

FN12  SEE NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190,
196.  WE SAID LAST TERM THAT DETERMINATION OF IMPROPER CONCENTRATION OF
CONTROL WAS FOR APPRAISAL BY THE COMMISSION AFTER HEARING.  FEDERAL
COMMUNICATIONS COMM'N V. ALLENTOWN BROADCASTING CO., 349 U.S. 358, 363
364. 

FN13  SEE UNEMPLOYMENT COMM'N V. ARAGON, 329 U.S. 143, 153; O'LEARY
V. BROWN-PACIFIC-MAXON, 340 U.S. 504, 508. 

FN14  POINT III OF THE NATIONAL BROADCASTING COMPANY BRIEF ARGUED THE
MATTER UNDER THIS HEADING, "THE COMMISSION CANNOT ESCAPE ITS DUTY TO
EVALUATE AND DECIDE EACH LICENSE APPLICATION ON ITS OWN FACTS."  AT
THAT TIME SEC. 309(A) HAD THE HEARING PROVISION.  IT READ: 

"SEC. 309.(A)  IF UPON EXAMINATION OF ANY APPLICATION FOR A STATION
LICENSE OR FOR THE RENEWAL OR MODIFICATION OF A STATION LICENSE THE
COMMISSION SHALL DETERMINE THAT PUBLIC INTEREST, CONVENIENCE, OR
NECESSITY WOULD BE SERVED BY THE GRANTING THEREOF, IT SHALL AUTHORIZE
THE ISSUANCE, RENEWAL, OR MODIFICATION THEREOF IN ACCORDANCE WITH SAID
FINDING.  IN THE EVENT THE COMMISSION UPON EXAMINATION OF ANY SUCH
APPLICATION DOES NOT REACH SUCH DECISION WITH RESPECT THERETO, IT SHALL
NOTIFY THE APPLICANT THEREOF, AND SHALL AFFORD SUCH APPLICANT AN
OPPORTUNITY TO BE HEARD UNDER SUCH RULES AND REGULATIONS AS IT MAY
PRESCRIBE."  48 STAT. 1085. 

CHANGE TO THE PRESENT FORM WAS MERELY FOR MORE CERTAINTY AND
CLARIFICATION TO AVOID THE POSSIBILITY OF ARBITRARY COMMISSION ACTION. 
SEE S. REP. NO. 44, 82D CONG., 1ST SESS. 8. 

FN15  "NO LICENSE SHALL BE GRANTED TO A STANDARD BROADCAST STATION
HAVING ANY CONTRACT, ARRANGEMENT, OR UNDERSTANDING, EXPRESS OR IMPLIED,
WITH A NETWORK ORGANIZATION UNDER WHICH THE STATION IS PREVENTED OR
HINDERED FROM, OR PENALIZED FOR, BROADCASTING THE PROGRAMS OF ANY OTHER
NETWORK ORGANIZATION."  ID., AT 200; 47 CFR, 1941 SUPP., SEC. 3.101. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN, CONCURRING IN PART AND DISSENTING IN PART. 

THE COURT HAS PROPERLY DEEMED IT NECESSARY TO QUESTION SUA SPONTE THE
JURISDICTION OF THE COURT OF APPEALS TO ENTERTAIN THIS CASE, (FN1) BUT
I AM UNABLE TO AGREE WITH ITS DECISION THAT SUCH JURISDICTION EXISTED. 
IN MY VIEW, STORER WAS NOT A "PARTY AGGRIEVED BY A FINAL ORDER" OF THE
COMMISSION, WITHIN THE MEANING OF 5 U.S.C. SEC. 1034, AND HENCE WAS NOT
ENTITLED TO INVOKE THE JURISDICTION OF THE COURT OF APPEALS. 
ACCORDINGLY, I WOULD VACATE THE JUDGMENT BELOW AND REMAND THE CASE TO
THE COURT OF APPEALS WITH DIRECTIONS TO DISMISS THE PETITION FOR LACK
OF JURISDICTION. 

1.  THESE REGULATIONS DO NOT, IN MY VIEW, CONSTITUTE AN "ORDER"
WITHIN THE MEANING OF SEC. 1034.  THEY SIMPLY ESTABLISH CERTAIN
STANDARDS TO BE FOLLOWED BY THE COMMISSION IN THE FUTURE EXERCISE OF
ITS LICENSING POWERS; THEY DO NOT REQUIRE ANY LICENSEE TO DO OR TO
REFRAIN FROM DOING ANYTHING, ATTACH NO CONSEQUENCES TO HIS ACTION OR
INACTION, AND DETERMINE NO QUESTIONS AS TO HIS LEGAL STATUS.   AS SUCH
THEY ARE QUITE UNLIKE THE CHAIN BROADCASTING REGULATIONS WHICH WERE
HELD TO BE A REVIEWABLE "ORDER" IN COLUMBIA BROADCASTING SYSTEM V.
UNITED STATES, 316 U.S. 407, IN A PROCEEDING COMPARABLE TO THIS ONE. 
THOSE REGULATIONS WERE HELD REVIEWABLE, NOT BECAUSE EVERY COMMISSION
ACTION IN THE FORM OF A REGULATION WAS CONSIDERED TO BE AN "ORDER," BUT
FOR THE SPECIFIC REASON THAT THEY PROSCRIBED CERTAIN KINDS OF CONTRACTS
BETWEEN LICENSEES AND THE NATIONAL NETWORKS AND, BY PRESCRIBING THE
SANCTION OF LICENSE CANCELLATION FOR NONCOMPLIANCE, OPERATED TO COERCE
ACTION BY THE LICENSEES AND TO DETERMINE THE LEGAL STATUS OF THE
NETWORKS' CONTRACTS.  OF THEIR OWN FORCE AND WITH NO FURTHER
ADMINISTRATIVE ACTION BEING TAKEN, THE REGULATIONS INDUCED LICENSEES TO
CANCEL EXISTING NETWORK CONTRACTS AND DETERRED THEM FROM ENTERING INTO
NEW ONES.  THAT COERCIVE EFFECT OF THE REGULATIONS ON PRESENT CONDUCT,
THE VERY CHARACTERISTIC WHICH LED THE COURT TO REGARD THE CHAIN
BROADCASTING REGULATIONS AS AN "ORDER" DESPITE THEIR FORM, IS TOTALLY
LACKING HERE.  (FN2)    2.  A SECOND OBSTACLE TO REVIEW OF THE
REGULATIONS HERE IS THAT, EVEN IF THEY BE DEEMED AN "ORDER," STORER HAS
NOT SHOWN THAT IT IS "AGGRIEVED" BY THEM. 

IN ADDRESSING THE CHARACTER OF STORER'S GRIEVANCE, WE MUST PUT ASIDE
THE COMMISSION'S ORDER, MADE SIMULTANEOUSLY WITH ITS PROMULGATION OF
THE CHALLENGED REGULATIONS, WHICH DENIED A PENDING APPLICATION BY
STORER FOR A SIXTH TELEVISION LICENSE.  THAT ORDER WAS REVIEWABLE ONLY
BY A DIRECT APPEAL WITHIN 30 DAYS UNDER 47 U.S.C. SEC. 402(B), (C),
FEDERAL COMMUNICATIONS COMM'N V. COLUMBIA BROADCASTING SYSTEM, 311 U.S.
132, AND BECAME FINAL AND CONCLUSIVE UPON STORER'S FAILURE TO APPEAL
FROM IT.  SINCE THAT ORDER CANNOT BE REVIEWED, AND NO RELIEF FROM IT
MAY BE GRANTED IN THIS PROCEEDING, IT IS ONLY OF THE PROSPECTIVE EFFECT
OF THE REGULATIONS, NOT THEIR PAST APPLICATION, THAT STORER MAY
COMPLAIN.  AND IT IS BY THAT EFFECT THAT STORER MUST SHOW IT IS
"AGGRIEVED." 

IN ITS PETITION FOR REVIEW, STORER ALLEGED THAT IT WAS AGGRIEVED BY
THE REGULATIONS IN THAT: 

"(A)  STORER IS DENIED THE RIGHT OF A FULL AND FAIR HEARING TO
DETERMINE WHETHER ITS OWNERSHIP OF AN INTEREST IN MORE THAN SEVEN (7)
STANDARD RADIO AND FIVE (5) TELEVISION BROADCAST STATIONS, IN LIGHT OF
AND UPON A SHOWING OF ALL MATERIAL CIRCUMSTANCES, WILL THEREBY SERVE
THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY. 

"(B)  THE ACQUISITION OF STORER'S VOTING STOCK BY THE PUBLIC UNDER
CIRCUMSTANCES BEYOND THE CONTROL OF STORER, MAY AND COULD BE VIOLATIVE
OF THE MULTIPLE OWNERSHIP RULES, AS AMENDED, AND RESULT IN A FORFEITURE
OF LICENSES NOW HELD BY STORER, WITH RESULTANT LOSS AND INJURY TO
STORER AND TO ALL OTHER STORER STOCKHOLDERS." 

HOWEVER THESE ALLEGATIONS ARE READ, THEY ASSERT NO MORE THAN THAT THE
COMMISSION MAY IN THE FUTURE TAKE ACTION PURSUANT TO THE REGULATIONS TO
DENY OR REVOKE A LICENSE.  OF COURSE, IF SUCH ACTION SHOULD EVER BE
TAKEN, STORER WOULD THEN BE "AGGRIEVED."  BUT BY THE SAME TOKEN IT
WOULD THEN HAVE A COMPLETE REMEDY THROUGH A DIRECT APPEAL FROM SUCH
ACTION UNDER SEC. 402(B).  UNTIL SUCH TIME AS THE REGULATIONS ARE
APPLIED TO IT, HOWEVER, STORER WILL NOT HAVE BEEN "AGGRIEVED" AND HENCE
WILL NOT BE ENTITLED TO REVIEW.  INDEED, IN THIS CASE WE DO NOT EVEN
REACH THE OFTEN DIFFICULT PROBLEM WHETHER AN ALLEGED INJURY IS
SUFFICIENT OR OF SUCH A NATURE AS TO ENTITLE THE COMPLAINING PARTY TO
REVIEW; HERE WE HAVE THAT RARE CASE IN WHICH NO PRESENT INJURY OF ANY
KIND IS EVEN ALLEGED. 

IT IS SAID, HOWEVER, THAT THE REGULATIONS "NOW OPERATE TO CONTROL THE
BUSINESS AFFAIRS OF STORER," DESPITE THE ABSENCE OF ANY SUCH ALLEGATION
BY STORER.  SINCE THE REGULATIONS DO NOT HAVE ANY COERCIVE EFFECT, I
TAKE THAT TO MEAN ONLY THAT STORER, IF IT EXERCISES PRUDENT BUSINESS
JUDGMENT, WILL TAKE INTO ACCOUNT THE ANNOUNCED POLICY OF THE COMMISSION
IN DECIDING WHETHER OR NOT TO APPLY FOR AN ADDITIONAL LICENSE.  NO
DOUBT THAT IS TRUE, BUT I FAIL TO SEE HOW STORER HAS BEEN "AGGRIEVED"
BY BEING TOLD IN ADVANCE ONE OF THE FACTORS THAT WILL GOVERN THE
DISPOSITION OF ANY FUTURE LICENSE APPLICATION ON ITS PART.  IF
ANYTHING, STORER IS NOW ABLE TO MAKE A MORE ENLIGHTENED JUDGMENT AS TO
THE PROBABILITIES OF SUCCESS IN OBTAINING A FURTHER LICENSE. 

3.  SO CLEAR IS IT, IN FACT, THAT STORER HAS NOT BEEN "AGGRIEVED" BY
THE MERE ISSUANCE OF THE REGULATIONS, THAT THE COURT'S GRANT OF REVIEW
IN THIS CASE MUST BE PREMISED NOT UPON THE EFFECT OF THE REGULATIONS
THEMSELVES, BUT SIMPLY UPON STORER'S INTEREST IN KNOWING WHETHER OR NOT
A FUTURE APPLICATION OF THEM WOULD BE VALID.  THE RESULT IS THAT THE
STATUTORY PROCEDURE FOR OBTAINING RELIEF FROM A PRESENT INJURY CAUSED
BY AN ORDER HAS BEEN CONVERTED INTO SOMETHING QUITE DIFFERENT - NAMELY,
A PROCEDURE FOR OBTAINING A DECLARATORY JUDGMENT AS TO THE VALIDITY OF
A FUTURE APPLICATION OF NEW REGULATIONS.  NOT ONLY IS SUCH A PROCEEDING
NOT AUTHORIZED BY THE STATUTE, HOWEVER, BUT STORER WOULD NOT HAVE
STANDING TO INVOKE IT EVEN IF IT WERE. 

THAT DECLARATORY RELIEF FROM FUTURE ORDERS IS NOT CONTEMPLATED BY
SEC. 1034 SEEMS CLEAR.  THAT SECTION AUTHORIZES REVIEW OF AN "ORDER,"
ONLY IF THE ORDER IS "FINAL," AND ONLY AT THE INSTANCE OF ONE AGGRIEVED
"BY" THE CHALLENGED ORDER ITSELF.  THE REGULATIONS HERE ARE NOT AN
"ORDER"; IF THEY WERE IT WOULD NOT BE "FINAL" SINCE FURTHER
ADMINISTRATIVE ACTION MUST BE TAKEN BEFORE STORER WILL BE AFFECTED; AND
STORER'S GRIEVANCE, IF ANY, WILL BE CAUSED NOT "BY" THE REGULATIONS BUT
ONLY BY THEIR FUTURE APPLICATION.  MOREOVER, QUOTE APART FROM THESE
OBSTACLES, THE PROCEDURE PROVIDED FOR BY SEC. 1034 IS INAPPROPRIATE FOR
ANTICIPATORY EQUITABLE RELIEF.  THAT SECTION REQUIRES, FOR EXAMPLE,
THAT PETITIONS FOR REVIEW BE FILED WITHIN 60 DAYS AFTER THE ORDER IS
ISSUED.  WHILE SUCH A TIME LIMITATION IS CLEARLY APPROPRIATE TO A
PROCEDURE FOR RELIEF FROM AN INJURY ALREADY SUFFERED, THERE SEEMS NO
JUSTIFICATION FOR SO LIMITING THE AVAILABILITY OF DECLARATORY RELIEF
FROM FUTURE ACTION.  WHY SHOULD DECLARATORY RELIEF BE DENIED AS THE
THREAT OF THE FUTURE INJURY BECOMES MORE IMMINENT, OR BE GRANTED TO
THOSE WHO HAVE A SUFFICIENT INTEREST TO SEEK REVIEW IMMEDIATELY WHILE
BEING DENIED TO THOSE WHO LATER ACQUIRE A SIMILAR OR EVEN GREATER
INTEREST?  FINALLY, NO REASON IS APPARENT WHY EXISTING PROCEDURES FOR
DECLARATORY JUDGMENTS ARE NOT ADEQUATE; TO CONSTRUE SEC. 1034 AS AN
ALTERNATIVE DECLARATORY JUDGMENT PROCEDURE SIMPLY PRODUCES THE
INCONGRUOUS RESULT OF AUTHORIZING DECLARATORY RELIEF IN THE COURTS OF
APPEALS WITHIN 60 DAYS AFTER THE ORDER IS ISSUED AND IN THE DISTRICT
COURTS THEREAFTER. 

IN THE SECOND PLACE, EVEN IF SEC. 1034 IS TO BE CONSTRUED AS
AUTHORIZING DECLARATORY RELIEF, I SEE NO REASON WHY THE USUAL
REQUIREMENTS FOR INVOKING EQUITY JURISDICTION SHOULD NOT BE AS
APPLICABLE TO SUCH A PROCEEDING AS THEY ARE TO AN ORDINARY DECLARATORY
JUDGMENT ACTION OR TO A PROCEEDING TO SET ASIDE A COMMISSION ORDER
UNDER THE URGENT DEFICIENCIES ACT, THE PREDECESSOR TO SEC. 1034 UNDER
WHICH THE CBS CASE AROSE.  IN THAT CASE, CBS'S RIGHT TO EQUITABLE
RELIEF IN ADVANCE OF THE APPLICATION OF THE REGULATIONS WAS EXPRESSLY
BASED ON THE IRREPARABLE INJURY IT WOULD SUFFER - THE WHOLESALE
CANCELLATION OF ITS CONTRACTS WITH LICENSEES - BEFORE ANY FURTHER
ADMINISTRATIVE ACTION WAS TAKEN AND FOR WHICH THERE WAS NO OTHER
ADEQUATE REMEDY.  UNLESS THESE REQUIREMENTS FOR EQUITABLE RELIEF ARE TO
BE ABANDONED, THERE CAN BE NO RIGHT TO RELIEF HERE, FOR STORER ALLEGES
NO THREATENED INJURY OF ANY KIND, OTHER THAN THE POSSIBILITY OF FUTURE
ADMINISTRATIVE ACTION FOR WHICH THERE WOULD BE A COMPLETE REMEDY BY
APPEAL. 

IT IS SAID, HOWEVER - AGAIN WITHOUT SUPPORT OF ANY ALLEGATIONS BY
STORER - THAT STORER "CANNOT COGENTLY PLAN ITS PRESENT OR FUTURE
OPERATIONS" UNLESS IT IS ADVISED WHETHER OR NOT THE REGULATIONS ARE
VALID.  BUT PLANS FOR EXPANSION OF COMMUNICATIONS FACILITIES HAVE
ALWAYS HAD TO BE MADE SUBJECT TO THE CONTINGENCY THAT THE COMMISSION
MIGHT REFUSE TO GRANT THE NECESSARY LICENSE FOR ANY ONE OF A NUMBER OF
REASONS.  STORER'S POSITION IN THIS RESPECT IS NOW NO DIFFERENT THAN IT
WAS BEFORE THE REGULATIONS WERE ISSUED: ANY PLAN TO ACQUIRE A NEW
STATION MUST SIMPLY TAKE INTO ACCOUNT, AMONG THE SEVERAL CONTINGENCIES,
THE LIKELIHOOD THAT A DENIAL OF A LICENSE UNDER THE REGULATIONS WOULD
BE UPHELD ON APPEAL.  WHAT THIS ARGUMENT COMES DOWN TO, THEREFORE, IS
THAT STORER NEEDS TO KNOW WHETHER OR NOT IT CAN VALIDLY BE DENIED A
LICENSE UNDER THE REGULATIONS SO THAT, IF IT CAN, IT NEED NOT MAKE AN
APPLICATION.  THAT IS, THE INJURY THAT STORER WILL HAVE SUFFERED IF THE
DECISION ON THE VALIDITY OF THE REGULATIONS IS POSTPONED UNTIL STORER
IN FACT APPLIES FOR A LICENSE IS THE EXPENSE OF MAKING THAT VERY
APPLICATION, THE SAME INJURY THAT IS SUFFERED BY ALL UNSUCCESSFUL
LICENSE APPLICANTS.  UNTIL TODAY, I SHOULD NOT HAVE THOUGHT ARGUMENT
WAS NECESSARY TO REJECT SUCH A BASIS FOR DECLARATORY RELIEF. 
DECLARATORY RELIEF HAS BEEN DENIED PERSONS WHOSE ONLY ALTERNATIVE WAS
TO RISK BOTH DISMISSAL FROM PUBLIC EMPLOYMENT AND THE IMPOSITION OF
CRIMINAL PENALTIES, UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, YET
IT IS GRANTED HERE TO RELIEVE STORER OF THE MERE BURDEN OF MAKING AN
APPLICATION FOR A LICENSE.  (FN3) 

4.  THE HOLDING OF THE COURT TODAY AMOUNTS TO THIS:  THAT REGULATIONS
WHICH IMPOSE NO DUTY AND DETERMINE NO RIGHTS MAY BE REVIEWED AT THE
INSTANCE OF A PERSON WHO ALLEGES NO INJURY, TO SETTLE WHETHER A FUTURE
APPLICATION OF THE REGULATIONS THAT MAY NEVER OCCUR WOULD BE VALID. 
THE LACK OF SUPPORT FOR THIS DECISION IS DISCLOSED BY THE COURT'S
PRIMARY RELIANCE ON CBS, (FN4) A CASE WHICH IN MY VIEW NOT ONLY FAILS
TO SUPPORT THE COURT'S CONCLUSION BUT IS PERSUASIVE, IF NOT
CONTROLLING, AUTHORITY FOR PRECISELY THE OPPOSITE RESULT.  (FN5)  IN MY
OPINION, THE IMPLICATIONS OF THE DECISION UNDERMINE MUCH OF THE SETTLED
LAW ON REVIEWABILITY OF ADMINISTRATIVE ACTION, AND IT IS THE MORE
UNFORTUNATE BECAUSE MADE WITHOUT THE BENEFIT OF BRIEFS OR ARGUMENT BY
THE PARTIES.  I CANNOT CONCUR IN THAT PART OF THE COURT'S OPINION. 

THE COURT HAVING DECIDED, HOWEVER, THAT THE COURT OF APPEALS HAD
JURISDICTION, I CONCUR WITH THE COURT ON THE MERITS. 

FN1 ALTHOUGH THE QUESTION OF REVIEWABILITY WAS NOT RAISED BELOW OR
ARGUED HERE, THERE CAN BE NO DOUBT OF THE POWER OF THE COURT TO
CONSIDER THE ISSUE SUA SPONTE, SINCE IT GOES TO THE JURISDICTION OF THE
COURT OF APPEALS AND OF THIS COURT.  CF. FEDERAL COMMUNICATIONS COMM'N
V. NATIONAL BROADCASTING CO., 319 U.S. 239, 246; ROCHESTER TELEPHONE
CORP. V. UNITED STATES, 307 U.S. 125, 128, N. 3; AMERICAN FEDERATION OF
LABOR V. LABOR BOARD, 308 U.S. 401, 404.  THE JURISDICTION OF THE
COURTS OF APPEALS TO REVIEW ORDERS OF THE FEDERAL COMMUNICATIONS
COMMISSION, OTHER THAN THOSE GRANTING OR DENYING LICENSES, IS GRANTED
BY THE ACT OF DECEMBER 29, 1950, 64 STAT. 1129, 5 U.S.C. SECS. 1031
1042.  SECTION 1032, WHICH CONFERS THE JURISDICTION, PROVIDES THAT
"SUCH JURISDICTION SHALL BE INVOKED BY THE FILING OF A PETITION AS
PROVIDED IN SECTION 1034."  SECTION 1034, IN TURN, PROVIDES THAT "ANY
PARTY AGGRIEVED BY A FINAL ORDER  ...  MAY, WITHIN SIXTY DAYS AFTER
ENTRY OF SUCH ORDER, FILE IN THE COURT OF APPEALS  ... A PETITION TO
REVIEW SUCH ORDER."  IN SHORT, THE COURT'S JURISDICTION MAY BE INVOKED
ONLY UPON THE PETITION OF A PARTY AGGRIEVED BY A FINAL ORDER." 

FN2  INSOFAR AS THE MULTIPLE OWNERSHIP REGULATIONS PROVIDE FOR THE
REVOCATION OF EXISTING LICENSES UPON THE PURCHASE BY A LICENSEE OF A
STOCK INTEREST IN MORE THAN THE MAXIMUM NUMBER OF STATIONS, THEY COULD
ARGUABLY BE DEEMED AN "ORDER" FORBIDDING LICENSEES, UNDER PAIN OF
LICENSE REVOCATION, TO ENGAGE IN STOCK TRANSACTIONS THE RESULT OF WHICH
WOULD VIOLATE THE NUMERICAL LIMITATIONS.  STORER IS NOT COMPLAINING,
HOWEVER, OF ANY SUCH DETERRENT EFFECT OF THE REGULATIONS AND DOES NOT
ALLEGE THAT IT DESIRES EITHER TO BUY OR TO SELL STOCK IN ANY LICENSEE. 
IT OBJECTS ONLY TO THE POSSIBILITY OF A FUTURE LOSS OF A LICENSE SHOULD
PERSONS BEYOND ITS CONTROL - AND, BY HYPOTHESIS, NOT DETERRED BY THE
REGULATIONS - PURCHASE ITS STOCK.  SEE PARAGRAPH (B) OF STORER'S
ALLEGATIONS, P. 208, INFRA. 

FN3  THE RECENT HOLDING OF THIS COURT IN EAST TEXAS MOTOR FREIGHT
LINES, INC. V. FROZEN FOOD EXPRESS, ANTE, P. 49, DOES NOT SUPPORT THE
RESULT REACHED HERE.  IN THAT CASE THE DECLARATORY INTERPRETATION OF
THE INTERSTATE COMMERCE ACT - SOUGHT BY WAY OF REVIEW OF THE
COMMISSION'S INTERPRETATIVE REGULATIONS IN A PROCEEDING UNDER THE
URGENT DEFICIENCIES ACT - WAS CONSIDERED JUSTIFIED BECAUSE OF THE
POSSIBILITY OF CRIMINAL PENALTIES BEING IMPOSED FOR VIOLATIONS OF THE
ACT AND THE RISK OF LOSS OF SUBSTANTIAL INVESTMENTS IN OPERATIONS THAT
MIGHT SUBSEQUENTLY BE ENJOINED BY THE COMMISSION.  NO SUCH NECESSITY
FOR DECLARATORY RELIEF IS EVEN ALLEGED HERE; THERE IS NO THREAT OF
CRIMINAL PROSECUTIONS AND, SINCE A LICENSE IS ALWAYS A CONDITION
PRECEDENT TO ACQUISITION OF A NEW STATION, THERE IS NO DANGER OF THE
LOSS OF INVESTMENTS TO BE MADE PRIOR TO THE FUTURE ADMINISTRATIVE
ACTION. 

FN4  OF THE OTHER CASES CITED BY THE COURT, ONLY FEDERAL
COMMUNICATIONS COMM'N V. AMERICAN BROADCASTING CO., 347 U.S. 284,
INVOLVED A SIMILAR SITUATION, AND THERE THE JURISDICTIONAL PROBLEM WAS
NEITHER RAISED BY THE PARTIES NOR NOTED BY THE COURT. 

FN5  THROUGHOUT THE OPINION IN THE CBS CASE, THE COURT EMPHASIZED THE
EXCEPTIONAL CIRCUMSTANCES WHICH JUSTIFIED IMMEDIATE REVIEW OF THE CHAIN
BROADCASTING REGULATIONS AND DISTINGUISHED THEM FROM REGULATIONS OF THE
SORT HERE INVOLVED.  SEE, E.G., 316 U.S., AT 424-425: 

"WE NEED NOT STOP TO DISCUSS HERE THE GREAT VARIETY OF ADMINISTRATIVE
RULINGS WHICH, UNLIKE THIS ONE, ARE NOT REVIEWABLE - EITHER BECAUSE
THEY DO NOT ADJUDICATE RIGHTS OR DECLARE THEM LEGISLATIVELY, OR BECAUSE
THERE ARE ADEQUATE ADMINISTRATIVE REMEDIES WHICH MUST BE PURSUED BEFORE
RESORTING TO JUDICIAL REMEDIES, OR BECAUSE THERE IS NO OCCASION TO
RESORT TO EQUITABLE REMEDIES.  BUT WE SHOULD NOT FOR THAT REASON FAIL
TO DISCRIMINATE BETWEEN THEM AND THIS CASE IN WHICH, BECAUSE OF ITS
PECULIAR CIRCUMSTANCES, ALL THE ELEMENTS PREREQUISITE TO JUDICIAL
REVIEW ARE PRESENT.  THE ULTIMATE TEST OF REVIEWABILITY IS NOT TO BE
FOUND IN AN OVERREFINED TECHNIQUE, BUT IN THE NEED OF THE REVIEW TO
PROTECT FROM THE IRREPARABLE INJURY THREATENED IN THE EXCEPTIONAL CASE
BY ADMINISTRATIVE RULINGS WHICH ATTACH LEGAL CONSEQUENCES TO ACTION
TAKEN IN ADVANCE OF OTHER HEARINGS AND ADJUDICATIONS THAT MAY FOLLOW,
THE RESULTS OF WHICH THE REGULATIONS PURPORT TO CONTROL."    MR.
JUSTICE FRANKFURTER, DISSENTING. 

WHILE I AGREE THAT THE AMENDATORY RULES PROMULGATED BY THE FEDERAL
COMMUNICATIONS COMMISSION RELATING TO MULTIPLE OWNERSHIP OF STANDARD,
FM AND TELEVISION STATIONS CONSTITUTE A REVIEWABLE "ORDER" WITHIN THE
MEANING OF 5 U.S.C. SEC. 1034, MY BROTHER HARLAN'S REASONING CONVINCES
ME THAT THE RESPONDENT WAS NOT ON THE RECORD BEFORE US A "PARTY
AGGRIEVED" UNDER THAT SECTION.  THEREFORE THE COURT BELOW SHOULD NOT
HAVE ENTERTAINED THE PETITION TO REVIEW THE COMMISSION'S ORDER. 
PROCEDURAL AND JURISDICTIONAL LIMITATIONS ON JUDICIAL ACTION BY THE
FEDERAL COURTS ARE NOT PLAYTHINGS OF LAWYERS NOR OBSTRUCTIONS ON THE
ROAD OF JUSTICE.  WHETHER FORMULATED BY THE CONSTITUTION, CONGRESSIONAL
ENACTMENTS OR SETTLED JUDICIAL PRECEDENTS, THEY ARE MEANS DESIGNED TO
KEEP THE COURTS WITHIN APPROPRIATE LIMITS AND TO ENFORCE RIGHTS
ACCORDING TO GENERAL STANDARDS AND NOT HAVE THEM DEPEND ON THE IMPACT
OF THE INDIVIDUAL CASE.  TO BE SURE, DEALING AS WE ARE WITH GENERAL
STANDARDS, DIFFERENCES OF VIEWS REGARDING THEIR SCOPE AND APPLICABILITY
ARE BOUND TO ARISE FROM TIME TO TIME.  WHO IS A "PARTY AGGRIEVED" OR A
"PARTY IN INTEREST" TURNS ON THE CONTEXT, OFTEN CONFUSED AND DUBIOUS,
OF A PARTICULAR SET OF CIRCUMSTANCES AND THEREFORE RAISES ISSUES ON
WHICH JUDGES NOT UNNATURALLY DIVIDE, AS THEY DO ON OTHER UNMATHEMATICAL
PROBLEMS OF THE LAW.  SEE SINGER & SONS V. UNION PACIFIC R. CO., 311
U.S. 295. 

TO THE LAITY SUCH MATTERS MAY SEEM TECHNICALITIES IN A DEROGATORY
SENSE OF THE TERM.  BUT THIS IS ONLY ONE PHASE OF AN ATTITUDE OF MIND
THAT THINKS ILL OF LAW WHICH DOES NOT ACCORD WITH PRIVATE WISHES.  WHEN
INFORMED BY A LEGAL ADVISER THAT TO CARRY OUT HIS DESIRES WOULD
ENCOUNTER "TECHNICAL LEGAL DIFFICULTIES," A STRENUOUS PRESIDENT OF THE
UNITED STATES IMPATIENTLY OBSERVED THAT "ALL LAW IS TECHNICALITY."  BUT
EVEN PROFESSIONALLY COMPETENT OFFICIALS ARE AT TIMES IMPATIENT WITH
DECISIONS THAT FAIL TO ADJUDICATE SUBSTANTIVE ISSUES ON WHICH LIGHT IS
SOUGHT.  IT SEEMS TO ME IMPORTANT, THEREFORE, NOT TO MINIMIZE THE
FUNCTION OF JURISDICTIONAL LIMITATIONS UPON ADJUDICATION BY EXPRESSING
VIEWS ON THE MERITS.  THERE ARE, OF COURSE, EXCEPTIONAL SITUATIONS
WHERE IT IS PROPER FOR A DISSENTER TO GO TO THE MERITS WHEN A MAJORITY
OF THE COURT REMOVES FROM THE CASE THRESHOLD OBJECTIONS OF PROCEDURE
AND JURISDICTION.  SEE, E.G., ASHWANDER V. TENNESSEE VALLEY AUTHORITY,
297 U.S. 288, 341.  THIS IS NOT SUCH A CASE. 
..END :


















JOHNSTON V. UNITED STATES 351 U.S. 215 


ARGUED MAY 2-3, 1956.  - DECIDED MAY 21, 1956.  - 227 F.2D 745,
AFFIRMED.  - 229 F.2D 257, REVERSED. 


THESE REGISTRANTS UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE
ACT WERE CLASSIFIED AS CONSCIENTIOUS OBJECTORS AND WERE ORDERED BY
THEIR LOCAL DRAFT BOARDS TO REPORT FOR CIVILIAN WORK AT STATE HOSPITALS
LOCATED IN JUDICIAL DISTRICTS OTHER THAN THOSE IN WHICH THEY RESIDED
AND WERE REGISTERED AND WHERE THEIR ORDERS WERE ISSUED.  THEY REFUSED
TO REPORT FOR WORK AT THE PLACES DESIGNATED, AND EACH WAS INDICTED FOR
A VIOLATION OF SEC.  12(A) OF THE ACT.  HELD:  THE VENUE FOR THEIR
TRIALS WAS IN THE JUDICIAL DISTRICTS WHERE THE CIVILIAN WORK WAS TO BE
PERFORMED - NOT IN THE JUDICIAL DISTRICTS IN WHICH THEY RESIDED AND
WHERE THEIR ORDERS WERE ISSUED.  PP. 216-223. 

(A)  THE GENERAL RULE IS THAT, WHERE THE CRIME CHARGED IS A FAILURE
TO DO A LEGALLY REQUIRED ACT, THE PLACE FIXED FOR ITS PERFORMANCE
DETERMINES THE SITUS OF THE CRIME.  P. 220. 

(B)  THE POSSIBILITY THAT REGISTRANTS MIGHT BE ORDERED TO REPORT TO
POINTS REMOTE FROM THE SITUS OF DRAFT BOARDS NEITHER ALLOWS NOR
REQUIRES JUDICIAL CHANGES IN THE LAW OF VENUE.  P. 220. 

(C)  THE VENUE REQUIREMENTS OF ARTICLE III OF THE CONSTITUTION AND
THE SIXTH AMENDMENT STATE THE PUBLIC POLICY THAT FIXES THE SITUS OF A
TRIAL IN THE VICINAGE OF THE CRIME RATHER THAN WHERE THE ACCUSED IS A
RESIDENT; AND A VARIATION FROM THAT RULE FOR THE CONVENIENCE OF THE
PROSECUTION OR THE ACCUSED IS NOT JUSTIFIED. 

JOHNSTON ET AL. V. UNITED STATES. 

NO. 643.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT.* 

*TOGETHER WITH NO. 704, UNITED STATES V. PATTESON, ON CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES CONCERN THE PROSECUTION OF THREE DEFENDANTS FOR
VIOLATIONS OF THE PROVISIONS OF THE UNIVERSAL MILITARY TRAINING AND
SERVICE ACT.  50 U.S.C. APP. SEC.  451 ET SEQ. WE MUST DETERMINE THE
PROPER VENUE FOR THE TRIAL OF THESE CRIMES. 

DEFENDANTS JOHNSTON AND SOKOL RESIDED IN THE WESTERN JUDICIAL
DISTRICT OF PENNSYLVANIA AND REGISTERED THERE WITH THE LOCAL DRAFT
BOARDS.  BOTH WERE CLASSIFIED 1-O (CONSCIENTIOUS OBJECTORS) AND BOTH
WERE ORDERED TO REPORT TO THE BOARDS FOR ASSIGNMENT OF CIVILIAN WORK IN
LIEU OF INDUCTION.  THEY WERE INSTRUCTED TO REPORT TO SEPARATE STATE
HOSPITALS SITUATED IN THE EASTERN JUDICIAL DISTRICT OF PENNSYLVANIA. 
THEY REPORTED TO THE BOARDS BUT PERSONALLY REFUSED TO COMPLY WITH THE
INSTRUCTIONS.  THEY WERE INDICTED IN THE EASTERN DISTRICT OF
PENNSYLVANIA AND THE INDICTMENTS WERE DISMISSED FOR LACK OF
JURISDICTION ON THE GROUND THAT VENUE COULD ONLY BE IN THE WESTERN
DISTRICT.  131 F. SUPP. 955.  THE COURT OF APPEALS FOR THE THIRD
CIRCUIT REVERSED AND REMANDED THE CASE FOR TRIAL.  THAT COURT REASONED
THAT VENUE WAS WHERE THE DEFENDANTS FAILED TO REPORT.  227 F.2D 745. 

DEFENDANT PATTESON, LIKEWISE CLASSIFIED 1-O, WAS ORDERED TO REPORT TO
HIS LOCAL BOARD IN OKLAHOMA FOR SIMILAR ASSIGNMENT.  HE, TOO, REPORTED
TO THE BOARD AND THERE PERSONALLY REFUSED TO COMPLY WITH INSTRUCTIONS
TO REPORT AT THE TOPEKA, KANSAS, STATE HOSPITAL.  AFTER INDICTMENT IN
KANSAS, THE KANSAS DISTRICT COURT ORDERED THE CASE TRANSFERRED TO
OKLAHOMA UNDER RULE 21(B), FED. RULES CRIM. PROC.  (FN1)  THE OKLAHOMA
COURT RETRANSFERRED THE CASE TO KANSAS AS IT THOUGHT THE VENUE WAS
THERE.   THE KANSAS COURT THEREUPON DISMISSED THE INDICTMENT ON THE
GROUND THAT THE VENUE WAS IN OKLAHOMA.  132 F. SUPP. 67.  THE JUDGMENT
WAS AFFIRMED BY THE COURT OF APPEALS FOR THE TENTH CIRCUIT.  229 F.2D
257. 

EACH REGISTRANT RECEIVED AN ORDER, THE PERTINENT PARTS OF WHICH
FOLLOW:

                   "SELECTIVE SERVICE SYSTEM

          ORDER TO REPORT FOR CIVILIAN WORK

     AND STATEMENT OF EMPLOYER 

     *         *   *         *         * 

"YOU ARE ORDERED TO REPORT TO THE LOCAL BOARD NAMED ABOVE AT ..... M.
ON THE ..... DAY OF ..... , 195 ..... , WHERE YOU WILL BE GIVEN
INSTRUCTIONS TO PROCEED TO THE PLACE OF EMPLOYMENT. 

"YOU ARE ORDERED TO REPORT FOR EMPLOYMENT PURSUANT TO THE
INSTRUCTIONS OF THE LOCAL BOARD, TO REMAIN IN EMPLOYMENT FOR TWENTY
FOUR (24) CONSECUTIVE MONTHS OR UNTIL SUCH TIME AS YOU ARE RELEASED OR
TRANSFERRED BY PROPER AUTHORITY. 

"YOU WILL BE INSTRUCTED AS TO YOUR DUTIES AT THE PLACE OF
EMPLOYMENT. 

"FAILURE TO REPORT AT THE HOUR AND ON THE DAY NAMED IN THIS ORDER, OR
TO PROCEED TO THE PLACE OF EMPLOYMENT PURSUANT TO INSTRUCTIONS, OR TO
REMAIN IN THIS EMPLOYMENT THE SPECIFIED TIME WILL CONSTITUTE A
VIOLATION OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, AS
AMENDED, WHICH IS PUNISHABLE BY FINE OR IMPRISONMENT OR BOTH. 

               .........................................

                "(CLERK OR MEMBER OF THE LOCAL BOARD)

                "STATEMENT OF EMPLOYER 

     *         *         *         *   * 

     "FAILED TO REPORT

               .........................................

                "PERSONNEL DIRECTOR"  (FN2) 

NONE OF THE REGISTRANTS ENTERED THE DISTRICT OF HIS INDICTMENT AFTER
RECEIVING HIS ORDERS. 

THE INDICTMENT IN EACH CASE CHARGES THE REGISTRANT, A CONSCIENTIOUS
OBJECTOR, (FN3) WITH VIOLATION OF SEC. 12(A) OF THE ACT.  (FN4)  IN THE
JOHNSTON INDICTMENT THE PERTINENT LANGUAGE IS: 

"  ...  DID KNOWLINGLY NEGLECT TO PERFORM A DUTY IMPOSED UPON HIM BY
THE PROVISION OF SAID ACT IN THAT HE FAILED AND REFUSED TO OBEY AN
ORDER OF LOCAL BOARD 87, NEW CASTLE, PENNSYLVANIA, DIRECTING HIM TO
REPORT FOR EMPLOYMENT AT NORRISTOWN STATE HOSPITAL, NORRISTOWN,
PENNSYLVANIA, AND TO REMAIN EMPLOYED THERE FOR TWENTY-FOUR CONSECUTIVE
MONTHS IN VIOLATION OF TITLE 50, U.S.C. APPX., SECTIONS 456 AND 462, AS
AMENDED." 

IN THE SOKOL CASE IT IS: 

"  ...  DID KNOWINGLY NEGLECT TO PERFORM A DUTY  ...  IN THAT HE
FAILED TO REPORT TO THE PHILADELPHIA STATE HOSPITAL,  ...  FOR
ASSIGNMENT TO PERFORM CIVILIAN WORK CONTRIBUTING TO THE MAINTENANCE OF
THE NATIONAL HEALTH, SAFETY OR INTEREST, IN LIEU OF INDUCTION; IN
VIOLATION OF TITLE 50 APPX.  SECS.  456(J) AND 462." 

IN THE PATTESON CASE IT IS: 

"  ...  DID KNOWINGLY AND WILLFULLY REFUSE, NEGLECT AND FAIL TO
REPORT AT THE TOPEKA STATE HOSPITAL AT THE TIME AND PLACE SO DESIGNATED
IN SAID ORDER." 

THE QUESTION AT ISSUE IN THESE THREE CASES IS FAIRLY PRESENTED BY THE
REGISTRANTS JOHNSTON AND SOKOL IN THEIR PETITION FOR CERTIORARI.  IT
READS THUS: 

"WHERE EACH PETITIONER RESIDED IN THE WESTERN DISTRICT OF
PENNSYLVANIA, THE SELECTIVE SERVICE LOCAL BOARD OF EACH WAS LOCATED IN
THE WESTERN DISTRICT OF PENNSYLVANIA, THE ORDERS TO PERFORM WORK WERE
ISSUED IN THE WESTERN DISTRICT OF PENNSYLVANIA AND EACH PETITIONER DID
NOT GO BEYOND HIS LOCAL BOARD IN THE WESTERN DISTRICT OF PENNSYLVANIA
AND AT ALL TIMES REFUSED TO LEAVE THE WESTERN DISTRICT OF PENNSYLVANIA
AND DID NOT PROCEED TO THE EASTERN DISTRICT OF PENNSYLVANIA, WERE THE
OFFENSES COMMITTED IN THE WESTERN DISTRICT OF PENNSYLVANIA AND NOT IN
THE EASTERN DISTRICT AND, THEREFORE, DOES IT VIOLATE RIGHTS GUARANTEED
BY THE SIXTH AMENDMENT TO THE CONSTITUTION TO INDICT AND PROSECUTE EACH
PETITIONER IN THE EASTERN DISTRICT OF PENNSYLVANIA?" 

OUR ANALYSIS OF THE LAW AND THE FACTS IN THESE CASES CONVINCES US
THAT THE VENUE OF THESE VIOLATIONS OF THE ORDERS LIES IN THE DISTRICT
WHERE THE CIVILIAN WORK WAS TO BE PERFORMED, THAT IS, FOR PATTESON IN
KANSAS, AND THE EASTERN DISTRICT OF PENNSYLVANIA FOR JOHNSTON AND
SOKOL. 

WE ARE LED TO THIS CONCLUSION BY THE GENERAL RULE THAT WHERE THE
CRIME CHARGED IS A FAILURE TO DO A LEGALLY REQUIRED ACT, THE PLACE
FIXED FOR ITS PERFORMANCE FIXES THE SITUS OF THE CRIME.  (FN5) THE
POSSIBILITY THAT REGISTRANTS MIGHT BE ORDERED TO REPORT TO POINTS
REMOTE FROM THE SITUS OF DRAFT BOARDS NEITHER ALLOWS NOR REQUIRES
JUDICIAL CHANGES IN THE LAW OF VENUE.  NO SHOWING OF ANY ARBITRARY
ACTION APPEARS IN THESE CASES.  ARTICLE III OF THE CONSTITUTION AND THE
SIXTH AMENDMENT FIX VENUE "IN THE STATE" AND "DISTRICT WHEREIN THE
CRIME SHALL HAVE BEEN COMMITTED."  THE VENUE OF TRIAL IS THEREBY
PREDETERMINED, BUT THOSE PROVISIONS DO NOT FURNISH GUIDANCE FOR
DETERMINATION OF THE PLACE OF THE CRIME.  THAT PLACE IS DETERMINED BY
THE ACTS OF THE ACCUSED THAT VIOLATE A STATUTE.   THIS REQUIREMENT OF
VENUE STATES THE PUBLIC POLICY THAT FIXES THE SITUS OF THE TRIAL IN THE
VICINAGE OF THE CRIME RATHER THAN THE RESIDENCE OF THE ACCUSED.  CF.
UNITED STATES V. ANDERSON, 328 U.S. 699, 705.  A VARIATION FROM THAT
RULE FOR CONVENIENCE OF THE PROSECUTION OR THE ACCUSED IS NOT
JUSTIFIED.  THE RESULT WOULD BE DELAY AND CONFUSION.  (FN6) 

THIS RULE WAS FOLLOWED IN UNITED STATES V. JOHNSON, 323 U.S. 273,
RELIED ON BY THE REGISTRANTS, WHERE A MAKER AND SHIPPER OF DENTURES
MAILED IN ILLINOIS WAS CHARGED IN DELAWARE, THE STATE OF RECEIPT BY A
CONSIGNEE, WITH VIOLATING THE LAW BY "USE" OF THE MAILS "FOR THE
PURPOSE OF SENDING OR BRINGING INTO" A STATE SUCH DENTURES.  ID., AT
274.  THIS COURT, BY INTERPRETATION OF THE STATUTE, RESTRICTED
PROSECUTION OF THE SHIPPER TO THE STATE OF THE SHIPMENT SAYING: 

"IT IS A REASONABLE AND NOT A STRAINED CONSTRUCTION TO READ THE
STATUTE TO MEAN THAT THE CRIME OF THE SENDER IS COMPLETE WHEN HE USES
THE MAILS IN CHICAGO, AND THE CRIME OF THE UNLICENSED DENTIST IN
CALIFORNIA OR FLORIDA OR DELAWARE, WHO ORDERS THE DENTURES FROM
CHICAGO, IS COMMITTED IN THE STATE INTO WHICH HE BRINGS THE DENTURES. 
AS A RESULT, THE TRIAL OF THE SENDER IS RESTRICTED TO ILLINOIS AND THAT
OF THE UNLICENSED DENTIST TO DELAWARE OR FLORIDA OR CALIFORNIA."  ID.,
AT 277-278.  (FN7) 

VENUE FOR THESE PROSECUTIONS LIES WHERE, UNDER SEC. 12(A), SUPRA, THE
REGISTRANTS DID "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  ... ." 
THESE REGISTRANTS WERE MADE SUBJECT TO SEC. 12(A) BY SEC. 6(J), WHICH
DECLARES THAT A CONSCIENTIOUS OBJECTOR WHO FAILS OR NEGLECTS TO OBEY AN
ORDER OF HIS LOCAL BOARD SHALL BE DEEMED TO HAVE "FAILED OR NEGLECTED
TO PERFORM A DUTY REQUIRED OF HIM" BY SEC. 12.  (FN8) 

THE ORDERS SET OUT ABOVE, P. 217, COULD ONLY BE THE BASIS OF ONE
CONVICTION BUT THEY DIRECTED THE REGISTRANT TO PERFORM TWO DUTIES.  THE
FIRST IS TO REPORT TO THE LOCAL BOARD.  THIS WAS DONE BY EACH
REGISTRANT.  THE SECOND IS TO REPORT FOR EMPLOYMENT AND TO REMAIN THERE
IN EMPLOYMENT FOR 24 CONSECUTIVE MONTHS.  THE "INSTRUCTIONS TO PROCEED"
GIVEN BY THE BOARD AND THE STATEMENT THAT "FAILURE  ...  TO PROCEED TO
THE PLACE OF EMPLOYMENT PURSUANT TO INSTRUCTIONS" WOULD CONSTITUTE A
CRIME, ARE FOR THE REGISTRANT'S INFORMATION.  THEY DID NOT CREATE
ANOTHER DUTY.  THIS APPEARS EMPHATICALLY FROM THE CHARACTERIZATION IN
THE EXPLANATORY PARAGRAPH THAT FAILURE TO REPORT OR PROCEED TO THE
PLACE OF EMPLOYMENT WOULD BE A VIOLATION OF ORDERS.  THE CRIMES CHARGED
ARISE FROM FAILURE TO COMPLETE THE SECOND DUTY - REPORT FOR
EMPLOYMENT.  ACCORDINGLY VENUE MUST LIE WHERE THE FAILURE OCCURRED. 
SEE CASES CITED ABOVE, N. 5. 

IT WILL BE NOTED THAT THE INDICTMENTS SET OUT THE PLACE OF THE
ALLEGED CRIMES IN THE TERMS OF THE ORDERS AND GIVE JURISDICTION FOR
TRIAL IN THE EASTERN DISTRICT OF PENNSYLVANIA AND THE DISTRICT OF
KANSAS.  IN EACH INSTANCE, THE CHARGE IS FAILURE TO PERFORM A "DUTY" IN
THAT THE REGISTRANT FAILED "TO REPORT" TO THE RESPECTIVE HOSPITALS. 
THUS, THE INDICTMENTS, BASED ON THE CHARGED VIOLATION OF THE ORDER,
FOLLOW, AS WE SEE IT, THE REQUIREMENTS OF LAW FOR TRIAL IN THE STATE
AND DISTRICT WHERE THE CRIME WAS COMMITTED. 

WE AFFIRM THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN NO. 643,
JOHNSTON AND SOKOL, AND REVERSE THE COURT OF APPEALS FOR THE TENTH
CIRCUIT IN NO. 704, THE PATTESON CASE.  NO. 643, AFFIRMED.  NO. 704,
REVERSED. 

FN1  "(B)  OFFENSE COMMITTED IN TWO OR MORE DISTRICTS OR DIVISIONS. 
THE COURT UPON MOTION OF THE DEFENDANT SHALL TRANSFER THE PROCEEDING AS
TO HIM TO ANOTHER DISTRICT OR DIVISION, IF IT APPEARS FROM THE
INDICTMENT OR INFORMATION OR FROM A BILL OF PARTICULARS THAT THE
OFFENSE WAS COMMITTED IN MORE THAN ONE DISTRICT OR DIVISION AND IF THE
COURT IS SATISFIED THAT IN THE INTEREST OF JUSTICE THE PROCEEDING
SHOULD BE TRANSFERRED TO ANOTHER DISTRICT OR DIVISION IN WHICH THE
COMMISSION OF THE OFFENSE IS CHARGED." 

FN2  THE STIPULATIONS IN THE JOHNSTON AND SOKOL CASES SHOW THE USE OF
THIS FORM.  THE PATTESON CASE ALSO WAS ARGUED ON THIS UNDERSTANDING AND
DEFENDANT'S MOTION TO DISMISS WAS SUSTAINED ON ALLEGATIONS OF FACT THAT
CONFIRM OUR ASSUMPTION THAT HIS ORDER ALSO WAS ON THE SAME FORM. 

FN3  50 U.S.C. APP. SEC. 456(J): 

"  ...  ANY PERSON CLAIMING EXEMPTION FROM COMBATANT TRAINING AND
SERVICE BECAUSE OF SUCH CONSCIENTIOUS OBJECTIONS WHOSE CLAIM IS
SUSTAINED BY THE LOCAL BOARD SHALL  ...  IN LIEU OF SUCH INDUCTION, BE
ORDERED BY HIS LOCAL BOARD  ...  TO PERFORM  ...  SUCH CIVILIAN WORK
...  AS THE LOCAL BOARD MAY DEEM APPROPRIATE AND ANY SUCH PERSON WHO
KNOWINGLY FAILS OR NEGLECTS TO OBEY ANY SUCH ORDER FROM HIS LOCAL BOARD
SHALL BE DEEMED FOR THE PURPOSES OF SECTION 12 OF THIS TITLE,  ... TO
HAVE KNOWINGLY FAILED OR NEGLECTED TO PERFORM A DUTY REQUIRED OF HIM
UNDER THIS TITLE  ...  ." 

FN4  50 U.S.C. APP. SEC. 462(A): 

"ANY  ...  PERSON  ...  WHO IN ANY MANNER SHALL KNOWINGLY FAIL OR
NEGLECT OR REFUSE TO PERFORM ANY DUTY REQUIRED OF HIM UNDER OR IN THE
EXECUTION OF THIS TITLE  ...  , OR RULES, REGULATIONS, OR DIRECTIONS
MADE PURSUANT TO THIS TITLE  ...  SHALL, UPON CONVICTION IN ANY
DISTRICT COURT OF THE UNITED STATES OF COMPETENT JURISDICTION, BE
PUNISHED BY IMPRISONMENT FOR NOT MORE THAN FIVE YEARS OR A FINE OF NOT
MORE THAN $10,000, OR BY BOTH SUCH FINE AND IMPRISONMENT  ...  ." 

FN5  RUMELY V. MCCARTHY, 250 U.S. 283; UNITED STATES V. LOMBARDO, 241
U.S. 73; JONES V. PESCOR, 169 F.2D 853; NEW YORK CENTRAL & H.R. CO. V.
UNITED STATES, 166 F. 267.  SEE CASES CITED IN UNITED STATES V.
ANDERSON, 328 U.S. 699, 705, N. 14, AND SEE UNITED STATES V. WYMAN, 125
F. SUPP. 276, 280.   COMPARE STATE COURT DECISIONS WHICH HOLD THAT A
STATE MAY PUNISH A FATHER FOR NONSUPPORT OF HIS CHILD EVEN THOUGH THE
DEFENDANT IS OUTSIDE THE STATE WHILE COMMITTING THE OFFENSE.  COMMENT,
6 STAN.  L. REV. 709. 

FN6  CF. UNITED STATES V. LOMBARDO, 241 U.S. 73, 78; HAAS V. HENKEL,
216 U.S. 462. 

FN7  SEE ALSO UNITED STATES V. WILSON AND UNITED STATES V. PURCHASING
CORP., 344 U.S. 923, WHERE IN AN INTERPRETATION OF A STATUTORY DUTY TO
"FORWARD" A REPORT OF SHIPMENTS UNDER THE TOBACCO TAX ACT, 63 STAT.
884, WE APPROVED THE DISTRICT COURT JUDGMENT THAT VENUE FOR PROSECUTION
WAS IN THE DISTRICT OF THE SHIPPER RATHER THAN THE DISTRICT OF THE
RECEIVER OF THE REPORT.    FN8  WE RULED IN THE CASE OF DODEZ V. UNITED
STATES, 329 U.S. 338, THAT DODEZ HAD EXHAUSTED HIS ADMINISTRATIVE
REMEDIES AND THEREFORE COULD DEFEND ON INDICTMENT HIS FAILURE WHEN HE
VIOLATED AN ORDER TO REPORT TO THE LOCAL BOARD FOR WORK OF NATIONAL
IMPORTANCE.  VENUE WAS LAID IN THE DISTRICT OF THE BOARD.  NO QUESTION
WAS RAISED OR DECIDED HERE AS TO VENUE.  PETITION FOR CERTIORARI, P. 2;
BRIEF OF THE UNITED STATES.  FURTHERMORE, AS THE UNITED STATES POINTS
OUT IN THIS CASE, AT THE TIME OF DODEZ' BREACH, THE GOVERNMENT
DELIVERED THE CONSCIENTIOUS OBJECTOR REGISTRANTS TO THE PLACE OF WORK. 
SEE ORDER TO REPORT FOR WORK, R. 155, NO. 86, 1946 TERM. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

PATTESON, WHO LIVES IN OKLAHOMA AND DEFIED HIS DRAFT BOARD THERE, IS
REQUIRED TO STAND TRIAL IN KANSAS.  JOHNSTON AND SOKOL, WHO LIVE IN THE
WESTERN DISTRICT OF PENNSYLVANIA AND DEFIED THEIR DRAFT BOARD THERE,
ARE FORCED BY THIS DECISION TO STAND TRIAL IN THE EASTERN DISTRICT. 
YET EACH DEFIED THE LAW AT HOME, NOT IN THE DISTANT PLACE.  UNLIKE
UNITED STATES V. ANDERSON, 328 U.S. 699, NO ACT OF ANY KIND WAS
COMMITTED IN THE DISTANT DISTRICT.  UNLIKE RUMELY V. MCCARTHY, 250 U.S.
283, AND UNITED STATES V. LOMBARDO, 241 U.S. 73, CONGRESS HAS NOT
SPECIFICALLY SELECTED THE FAILURE TO PERFORM AN ACT IN THE DISTANT
DISTRICT AND MADE IT A CRIME.  THE STATUTORY CRIME IS THE FAILURE OF A
CONSCIENTIOUS OBJECTOR, DIRECTED TO PERFORM CIVILIAN WORK, "TO OBEY ANY
SUCH ORDER FROM HIS LOCAL BOARD."  62 STAT. 612, AS AMENDED, 65 STAT.
86, 50 U.S.C. APP. SEC. 456(J).  THE ARGUMENT IN THE CASE HAS BEEN LIKE
A THEOLOGICAL DEBATE OVER THE NUMBER OF ANGELS WHO CAN STAND ON THE
HEAD OF A PIN.  OF COURSE, THE DUTY TO OBEY CAN BE DIVIDED UP INTO A
WHOLE SERIES OF DUTIES.  BUT, WHEN THE REGISTRANT IS ADAMANT IN HIS
REFUSAL TO BUDGE FROM HIS HOME TOWN AND STAYS AT HOME DEFYING THE LOCAL
AUTHORITIES, THE CRIME HE HAS COMMITTED HAS BEEN COMMITTED AT HOME. 

ANY DOUBTS SHOULD BE RESOLVED IN FAVOR OF THE CITIZEN.  WE SHOULD
CONSTRUE THE STATUTE AGAINST TWO HISTORIC CONSTITUTIONAL PROVISIONS. 
ARTICLE III, SEC. 2, CL. 3, PROVIDES THAT "THE TRIAL OF ALL CRIMES,
EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY JURY; AND SUCH TRIAL SHALL
BE HELD IN THE STATE WHERE THE SAID CRIMES SHALL HAVE BEEN COMMITTED;
BUT WHEN NOT COMMITTED WITHIN ANY STATE, THE TRIAL SHALL BE AT SUCH
PLACE OR PLACES AS THE CONGRESS MAY BY LAW HAVE DIRECTED."  AND THE
SIXTH AMENDMENT GUARANTEES AN ACCUSED "A SPEEDY AND PUBLIC TRIAL, BY AN
IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE
BEEN COMMITTED, WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED
BY LAW  ...  ."  WHILE WE HAVE HERE A STATUTORY PROBLEM, NOT A
CONSTITUTIONAL ONE, THE HISTORY OF THE TWO CONSTITUTIONAL GUARANTEES
THROWS LIGHT ON THE PROBLEM OF VENUE.  WHEN THE BRITISH PARLIAMENT
PROPOSED TAKING AMERICANS ABROAD OR TO ANOTHER COLONY FOR TRIAL, THE
VIRGINIA RESOLVES OF MAY 16, 1769, VOICED THE UNANIMOUS VIEW THAT
"THEREBY THE INESTIMABLE PRIVILEGE OF BEING TRIED BY A JURY FROM THE
VICINAGE, AS WELL AS THE LIBERTY OF SUMMONING AND PRODUCING WITNESSES
ON SUCH TRIAL, WILL BE TAKEN AWAY FROM THE PARTY ACCUSED."* 

*JOURNALS OF THE HOUSE OF BURGESSES OF VIRGINIA, 1766-1769, P. 214. 

THE BOYS IN THE PRESENT CASES SUFFER COMPARABLY.  FOR THEIR DEFIANCE
OF THEIR LOCAL BOARDS THEY ARE SENT TO DISTANT PLACES FOR TRIAL WHERE
THEY HAVE NO FRIENDS, WHERE THEY ARE UNKNOWN, AND TO WHICH ALL
WITNESSES MUST BE TRANSPORTED.  CONGRESS WOULD HAVE THE POWER TO FIX
THE VENUE THERE.  BUT IT HAS NOT DONE SO UNAMBIGUOUSLY.  CF. UNITED
STATES V. MIDSTATE CO., 306 U.S. 161, 166; UNITED STATES V. JOHNSON,
323 U.S. 273, 276.  I WOULD READ THE STATUTE WITH AN EYE TO HISTORY AND
TRY THE OFFENDERS AT HOME WHERE OUR FOREFATHERS THOUGHT THAT NORMALLY
MEN WOULD RECEIVE THE FAIREST TRIAL. 
..END :





RAILWAY EMPLOYES' DEPARTMENT, AMERICAN FEDERATION OF LABOR V. HANSON 351
U.S. 225 


NO. 451.  ARGUED MAY 2, 1956.  - DECIDED MAY 21, 1956.  - 160 NEB. 669,
71 N.W.2D 526, REVERSED. 


CLAIMING THAT A "UNION SHOP" AGREEMENT BETWEEN AN INTERSTATE RAILROAD
AND UNIONS OF OF ITS EMPLOYEES MADE PURSUANT TO SEC. 2, ELEVENTH, OF
THE RAILWAY LABOR ACT, WHICH EXPRESSLY AUTHORIZES SUCH AGREEMENTS
NOTWITHSTANDING ANY STATE LAW, VIOLATED THE FIRST AND FIFTH AMENDMENTS
OF THE FEDERAL CONSTITUTION AND THE "RIGHT TO WORK" PROVISION OF THE
NEBRASKA CONSTITUTION, NONUNION EMPLOYEES OF THE RAILROAD SUED IN A
NEBRASKA STATE COURT TO ENJOIN ENFORCEMENT OF SUCH AN AGREEMENT. 
HELD:  ON THE RECORD IN THIS CASE, THE AGREEMENT IS VALID AND
ENFORCEABLE AS TO THESE EMPLOYEES.  PP. 227-238. 

1.  THE ENACTMENT OF THE FEDERAL STATUTE AUTHORIZING UNION SHOP
AGREEMENTS IS THE GOVERNMENTAL ACTION ON WHICH THE CONSTITUTION
OPERATES, THOUGH IT TAKES A PRIVATE AGREEMENT TO INVOKE THE FEDERAL
SANCTION.  PP. 231-232. 

2.  SINCE SEC. 2, ELEVENTH, OF THE RAILWAY LABOR ACT EXPRESSLY
PERMITS "UNION SHOP" AGREEMENTS NOTWITHSTANDING ANY STATE LAW, AN
AGREEMENT MADE PURSUANT THERETO HAS THE IMPRIMATUR OF THE FEDERAL LAW
UPON IT AND, BY FORCE OF THE SUPREMACY CLAUSE OF ART. VI OF THE
CONSTITUTION, COULD NOT BE INVALIDATED OR VITIATED BY ANY STATE LAW. 
P. 232. 

3.  ON THE RECORD IN THIS CASE, THE REQUIREMENT FOR FINANCIAL SUPPORT
OF A COLLECTIVE-BARGAINING AGENCY BY ALL WHO RECEIVE THE BENEFITS OF
ITS WORK IS WITHIN THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE AND
DOES NOT VIOLATE EITHER THE FIRST OR THE FIFTH AMENDMENT.  PP. 233
238. 

(A)  ENACTMENT OF THE PROVISION OF SEC. 2, ELEVENTH, OF THE RAILWAY
LABOR ACT AUTHORIZING UNION SHOP AGREEMENTS BETWEEN INTERSTATE
RAILROADS AND UNIONS OF THEIR EMPLOYEES WAS A VALID EXERCISE BY
CONGRESS OF ITS POWERS UNDER THE COMMERCE CLAUSE, AND IT DOES NOT
VIOLATE THE DUE PROCESS CLAUSE.  PP. 233-235. 

(B)  THE ONLY CONDITIONS TO UNION MEMBERSHIP AUTHORIZED BY SEC. 2,
ELEVENTH, OF THE RAILWAY LABOR ACT ARE THE PAYMENT OF "PERIODIC DUES,
INITIATION FEES, AND ASSESSMENTS," WHICH RELATE TO FINANCIAL SUPPORT OF
THE WORK OF THE UNION IN THE REALM OF COLLECTIVE BARGAINING, AND THIS
INVOLVES NO VIOLATION OF THE FIRST OR THE FIFTH AMENDMENT.  PP. 235
238. 

(C)  JUDGMENT IS RESERVED AS TO THE VALIDITY OR ENFORCEABILITY OF A
UNION OR CLOSED SHOP AGREEMENT IF OTHER CONDITIONS OF UNION MEMBERSHIP
ARE IMPOSED OR IF THE EXACTION OF DUES, INITIATION FEES OR ASSESSMENTS
IS USED AS A COVER FOR FORCING IDEOLOGICAL CONFORMITY OR OTHER ACTION
IN CONTRAVENTION OF THE FIRST OR THE FIFTH AMENDMENT.  P. 238. 

RAILWAY EMPLOYES' DEPARTMENT, AMERICAN FEDERATION OF LABOR, ET AL. V.
HANSON ET AL. 

APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT IN THE NEBRASKA COURTS BY EMPLOYEES OF THE
UNION PACIFIC RAILROAD CO. AGAINST THAT COMPANY AND LABOR ORGANIZATIONS
REPRESENTING VARIOUS GROUPS OF EMPLOYEES OF THE RAILROAD TO ENJOIN THE
APPLICATION AND ENFORCEMENT OF A UNION SHOP AGREEMENT ENTERED INTO
BETWEEN THE RAILROAD COMPANY AND THE LABOR ORGANIZATIONS.  PLAINTIFFS
ARE NOT MEMBERS OF ANY OF THE DEFENDANT LABOR ORGANIZATIONS AND DESIRE
NOT TO JOIN.  UNDER THE TERMS OF THE UNION SHOP AGREEMENT ALL EMPLOYEES
OF THE RAILROAD, AS A CONDITION OF THEIR CONTINUED EMPLOYMENT, MUST
BECOME MEMBERS OF THE SPECIFIED UNION WITHIN 60 DAYS AND THEREAFTER
MAINTAIN THAT MEMBERSHIP.  IT IS ALLEGED THAT FAILURE ON THEIR PART TO
JOIN THE UNION WILL MEAN THE LOSS OF THEIR EMPLOYMENT TOGETHER WITH
SENIORITY, RETIREMENT, PENSION, AND OTHER RIGHTS. 

THE EMPLOYEES CLAIM THAT THE UNION SHOP AGREEMENT VIOLATES THE "RIGHT
TO WORK" PROVISION OF THE NEBRASKA CONSTITUTION (ART. XV, SEC. 13),
WHICH PROVIDES:  (FN1) 

"NO PERSON SHALL BE DENIED EMPLOYMENT BECAUSE OF MEMBERSHIP IN OR
AFFILIATION WITH, OR RESIGNATION OR EXPULSION FROM A LABOR ORGANIZATION
OR BECAUSE OF REFUSAL TO JOIN OR AFFILIATE WITH A LABOR ORGANIZATION;
NOR SHALL ANY INDIVIDUAL OR CORPORATION OR ASSOCIATION OF ANY KIND
ENTER INTO ANY CONTRACT, WRITTEN OR ORAL, TO EXCLUDE PERSONS FROM
EMPLOYMENT BECAUSE OF MEMBERSHIP IN OR NONMEMBERSHIP IN A LABOR
ORGANIZATION." 

THEY ASK FOR AN INJUNCTION RESTRAINING THE RAILROAD COMPANY FROM
ENFORCING AND APPLYING THE UNION SHOP AGREEMENT. 

THE ANSWERS DENY THAT THE NEBRASKA CONSTITUTION AND LAWS CONTROL AND
ALLEGE THAT THE UNION SHOP AGREEMENT IS AUTHORIZED BY SEC. 2, ELEVENTH
OF THE RAILWAY LABOR ACT, AS AMENDED, 64 STAT. 1238, 45 U.S.C. SEC.
152, ELEVENTH, WHICH PROVIDES THAT, NOTWITHSTANDING THE LAW OF "ANY
STATE," A CARRIER AND A LABOR ORGANIZATION MAY MAKE AN AGREEMENT
REQUIRING ALL EMPLOYEES WITHIN A STATED TIME TO BECOME MEMBERS OF THE
LABOR ORGANIZATION, PROVIDED THERE IS NO DISCRIMINATION AGAINST ANY
EMPLOYEE AND PROVIDED THAT MEMBERSHIP IS NOT DENIED NOR TERMINATED "FOR
ANY REASON OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE
PERIODIC DUES, INITIATION FEES, AND ASSESSMENTS (NOT INCLUDING FINES
AND PENALTIES) UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR
RETAINING MEMBERSHIP."  (FN2) 

THE NEBRASKA TRIAL COURT ISSUED AN INJUNCTION.  THE SUPREME COURT OF
NEBRASKA AFFIRMED.  IT HELD THAT THE UNION SHOP AGREEMENT VIOLATES THE
FIRST AMENDMENT IN THAT IT DEPRIVES THE EMPLOYEES OF THEIR FREEDOM OF
ASSOCIATION AND VIOLATES THE FIFTH AMENDMENT IN THAT IT REQUIRES THE
MEMBERS TO PAY FOR MANY THINGS BESIDES THE COST OF COLLECTIVE
BARGAINING.  THE NEBRASKA SUPREME COURT, THEREFORE, HELD THAT THERE IS
NO VALID FEDERAL LAW TO SUPERSEDE THE "RIGHT TO WORK" PROVISION OF THE
NEBRASKA CONSTITUTION.  160 NEB. 669, 71 N.W.2D 526.  THE CASE IS HERE
BY APPEAL.  28 U.S.C. SEC. 1257(1) AND (2).  WE NOTED PROBABLE
JURISDICTION.  350 U.S. 910. 

THE UNION SHOP (FN3) PROVISION OF THE RAILWAY LABOR ACT WAS WRITTEN
INTO THE LAW IN 1951.  PRIOR TO THAT DATE THE RAILWAY LABOR ACT
PROHIBITED UNION SHOP AGREEMENTS.  48 STAT. 1186, 45 U.S.C. SEC. 152,
FOURTH AND FIFTH; 40 OP. ATTY. GEN. 254.  THOSE PROVISIONS WERE ENACTED
IN 1934 WHEN THE UNION SHOP WAS BEING USED BY EMPLOYERS TO ESTABLISH
AND MAINTAIN COMPANY UNIONS, "THUS EFFECTIVELY DEPRIVING A SUBSTANTIAL
NUMBER OF EMPLOYEES OF THEIR RIGHT TO BARGAIN COLLECTIVELY."  S. REP.
NO. 2262, 81ST CONG., 2D SESS., P. 3.  BY 1950, COMPANY UNIONS IN THIS
FIELD HAD PRACTICALLY DISAPPEARED.  ID.  BETWEEN 75 AND 80% OF RAILROAD
EMPLOYEES WERE MEMBERS OF LABOR ORGANIZATIONS.  H.R. REP. NO. 2811,
81ST CONG., 2D SESS., P. 4.  WHILE NONUNION MEMBERS GOT THE BENEFITS OF
THE COLLECTIVE BARGAINING OF THE UNIONS, THEY BORE "NO SHARE OF THE
COST OF OBTAINING SUCH BENEFITS."  ID., AT 4.  AS SENATOR HILL, WHO
MANAGED THE BILL ON THE FLOOR OF THE SENATE, SAID, "THE QUESTION IN
THIS INSTANCE IS WHETHER THOSE WHO ENJOY THE FRUITS AND THE BENEFITS OF
THE UNIONS SHOULD MAKE A FAIR CONTRIBUTION TO THE SUPPORT OF THE
UNIONS."  96 CONG.  REC., PT. 12, P. 16279. 

THE UNION SHOP PROVISION OF THE RAILWAY LABOR ACT IS ONLY
PERMISSIVE.  CONGRESS HAS NOT COMPELLED NOR REQUIRED CARRIERS AND
EMPLOYEES TO ENTER INTO UNION SHOP AGREEMENTS.  THE SUPREME COURT OF
NEBRASKA NEVERTHELESS TOOK THE VIEW THAT JUSTICIABLE QUESTIONS UNDER
THE FIRST AND FIFTH AMENDMENTS WERE PRESENTED SINCE CONGRESS, BY THE
UNION SHOP PROVISION OF THE RAILWAY LABOR ACT, SOUGHT TO STRIKE DOWN
INCONSISTENT LAWS IN 17 STATES.  CF. HUDSON V. ATLANTIC COAST LINE R.
CO., 242 N.C. 650, 89 S.E.2D 441; OTTEN V. BALTIMORE & O.R. CO., 205
F.2D 58.  THE SUPREME COURT OF NEBRASKA SAID, "SUCH ACTION ON THE PART
OF CONGRESS IS A NECESSARY PART OF EVERY UNION SHOP CONTRACT ENTERED
INTO ON THE RAILROADS AS FAR AS THESE 17 STATES ARE CONCERNED FOR
WITHOUT IT SUCH CONTRACTS COULD NOT BE ENFORCED THEREIN."  160 NEB., AT
698, 71 N.W.2D, AT 547.  WE AGREE WITH THAT VIEW.  IF PRIVATE RIGHTS
ARE BEING INVADED, IT IS BY FORCE OF AN AGREEMENT MADE PURSUANT TO
FEDERAL LAW WHICH EXPRESSLY DECLARES THAT STATE LAW IS SUPERSEDED.  CF.
SMITH V. ALLWRIGHT, 321 U.S. 649, 663.  IN OTHER WORDS, THE FEDERAL
STATUTE IS THE SOURCE OF THE POWER AND AUTHORITY BY WHICH ANY PRIVATE
RIGHTS ARE LOST OR SACRIFICED.  (FN4)  CF. STEELE V. LOUISVILLE & N.R.
CO., 323 U.S. 192, 198-199, 204; RAILROAD TRAINMEN V. HOWARD, 343 U.S.
768; PUBLIC UTILITIES COMM'N V. POLLAK, 343 U.S. 451, 462.  THE
ENACTMENT OF THE FEDERAL STATUTE AUTHORIZING UNION SHOP AGREEMENTS IS
THE GOVERNMENTAL ACTION ON WHICH THE CONSTITUTION OPERATES, THOUGH IT
TAKES A PRIVATE AGREEMENT TO INVOKE THE FEDERAL SANCTION. 

AS ALREADY NOTED, THE 1951 AMENDMENT, PERMITTING THE NEGOTIATION OF
UNION SHOP AGREEMENTS, EXPRESSLY ALLOWS THOSE AGREEMENTS
NOTWITHSTANDING ANY LAW "OF ANY STATE."  SEC. 2, ELEVENTH.  (FN5) A
UNION AGREEMENT MADE PURSUANT TO THE RAILWAY LABOR ACT HAS, THEREFORE,
THE IMPRIMATUR OF THE FEDERAL LAW UPON IT AND, BY FORCE OF THE
SUPREMACY CLAUSE OF ARTICLE VI OF THE CONSTITUTION, COULD NOT BE MADE
ILLEGAL NOR VITIATED BY ANY PROVISION OF THE LAWS OF A STATE. 

WE COME THEN TO THE MERITS. 

IN THE ABSENCE OF CONFLICTING FEDERAL LEGISLATION, THERE CAN BE NO
DOUBT THAT IT IS WITHIN THE POLICE POWER OF A STATE TO PROHIBIT THE
UNION OR THE CLOSED SHOP.  WE SO HELD IN LINCOLN UNION V. NORTHWESTERN
CO., 335 U.S. 525, AND IN AMERICAN FEDERATION OF LABOR V. AMERICAN SASH
CO., 335 U.S. 538, AGAINST THE CHALLENGE THAT LOCAL "RIGHT TO WORK"
LAWS, INCLUDING NEBRASKA'S, VIOLATED THE REQUIREMENTS OF DUE PROCESS. 
BUT THE POWER OF CONGRESS TO REGULATE LABOR RELATIONS IN INTERSTATE
INDUSTRIES IS LIKEWISE WELL-ESTABLISHED.  CONGRESS HAS AUTHORITY TO
ADOPT ALL APPROPRIATE MEASURES TO "FACILITATE THE AMICABLE SETTLEMENT
OF DISPUTES WHICH THREATEN THE SERVICE OF THE NECESSARY AGENCIES OF
INTERSTATE TRANSPORTATION."  TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281
U.S. 548, 570.  THESE MEASURES INCLUDE PROVISIONS THAT WILL ENCOURAGE
THE SETTLEMENT OF DISPUTES "BY INDUCING COLLECTIVE BARGAINING WITH THE
TRUE REPRESENTATIVE OF THE EMPLOYEES AND BY PREVENTING SUCH BARGAINING
WITH ANY WHO DO NOT REPRESENT THEM" (VIRGINIAN R. CO. V. FEDERATION,
300 U.S. 515, 548), AND THAT WILL PROTECT THE EMPLOYEES AGAINST
DISCRIMINATION OR COERCION WHICH WOULD INTERFERE WITH THE FREE EXERCISE
OF THEIR RIGHT TO SELF-ORGANIZATION AND REPRESENTATION.  LABOR BOARD V.
JONES & LAUGHLIN, 301 U.S. 1, 33.  INDUSTRIAL PEACE ALONG THE ARTERIES
OF COMMERCE IS A LEGITIMATE OBJECTIVE; AND CONGRESS HAS GREAT LATITUDE
IN CHOOSING THE METHODS BY WHICH IT IS TO BE OBTAINED. 

THE CHOICE BY THE CONGRESS OF THE UNION SHOP AS A STABILIZING FORCE
SEEMS TO US TO BE AN ALLOWABLE ONE.  MUCH MIGHT BE SAID PRO AND CON IF
THE POLICY ISSUE WERE BEFORE US.  POWERFUL ARGUMENTS HAVE BEEN MADE
HERE THAT THE LONG-RUN INTERESTS OF LABOR WOULD BE BETTER SERVED BY THE
DEVELOPMENT OF DEMOCRATIC TRADITIONS IN TRADE UNIONISM WITHOUT THE
COERCIVE ELEMENT OF THE UNION OR THE CLOSED SHOP.  MR. JUSTICE
BRANDEIS, WHO HAD WIDE EXPERIENCE IN LABOR-MANAGEMENT RELATIONS PRIOR
TO HIS APPOINTMENT TO THE COURT, WROTE FORCEFULLY AGAINST THE CLOSED
SHOP.  HE FEARED THAT THE CLOSED SHOP WOULD SWING THE PENDULUM IN THE
OPPOSITE EXTREME AND SUBSTITUTE "TYRANNY OF THE EMPLOYEE" FOR "TYRANNY
OF THE EMPLOYER."  (FN6)  BUT THE QUESTION IS ONE OF POLICY WITH WHICH
THE JUDICIARY HAS NO CONCERN, AS MR. JUSTICE BRANDEIS WOULD HAVE BEEN
THE FIRST TO CONCEDE.  CONGRESS, ACTING WITHIN ITS CONSTITUTIONAL
POWERS, HAS THE FINAL SAY ON POLICY ISSUES.  IF IT ACTS UNWISELY, THE
ELECTORATE CAN MAKE A CHANGE.  THE TASK OF THE JUDICIARY ENDS ONCE IT
APPEARS THAT THE LEGISLATIVE MEASURE ADOPTED IS RELEVANT OR APPROPRIATE
TO THE CONSTITUTIONAL POWER WHICH CONGRESS EXERCISES.  THE INGREDIENTS
OF INDUSTRIAL PEACE AND STABILIZED LABOR-MANAGEMENT RELATIONS ARE
NUMEROUS AND COMPLEX.  THEY MAY WELL VARY FROM AGE TO AGE AND FROM
INDUSTRY TO INDUSTRY.  WHAT WOULD BE NEEDFUL ONE DECADE MIGHT BE
ANATHEMA THE NEXT.  THE DECISION RESTS WITH THE POLICY MAKERS, NOT WITH
THE JUDICIARY. 

IT IS SAID THAT THE RIGHT TO WORK, WHICH THE COURT HAS FREQUENTLY
INCLUDED IN THE CONCEPT OF "LIBERTY" WITHIN THE MEANING OF THE DUE
PROCESS CLAUSES (SEE TRUAX V. RAICH, 239 U.S. 33; TAKAHASHI V. FISH &
GAME COMMISSION, 334 U.S. 410), MAY NOT BE DENIED BY THE CONGRESS.  THE
QUESTION REMAINS, HOWEVER, WHETHER THE LONG-RANGE INTERESTS OF WORKERS
WOULD BE BETTER SERVED BY ONE TYPE OF UNION AGREEMENT OR ANOTHER.  THAT
QUESTION IS GERMANE TO THE EXERCISE OF POWER UNDER THE COMMERCE CLAUSE
A POWER THAT OFTEN HAS THE QUALITY OF POLICE REGULATIONS.  SEE
CLEVELAND V. UNITED STATES, 329 U.S. 14, 19.  ONE WOULD HAVE TO BE
BLIND TO HISTORY TO ASSERT THAT TRADE UNIONISM DID NOT ENHANCE AND
STRENGTHEN THE RIGHT TO WORK.  SEE WEBB, HISTORY OF TRADE UNIONISM;
GREGORY, LABOR AND THE LAW.  TO REQUIRE, RATHER THAN TO INDUCE, THE
BENEFICIARIES OF TRADE UNIONISM TO CONTRIBUTE TO ITS COSTS MAY NOT BE
THE WISEST COURSE.  BUT CONGRESS MIGHT WELL BELIEVE THAT IT WOULD HELP
INSURE THE RIGHT TO WORK IN AND ALONG THE ARTERIES OF INTERSTATE
COMMERCE.  NO MORE HAS BEEN ATTEMPTED HERE.  THE ONLY CONDITIONS TO
UNION MEMBERSHIP AUTHORIZED BY SEC. 2, ELEVENTH OF THE RAILWAY LABOR
ACT ARE THE PAYMENT OF "PERIODIC DUES, INITIATION FEES, AND
ASSESSMENTS."  THE ASSESSMENTS THAT MAY BE LAWFULLY IMPOSED DO NOT
INCLUDE "FINES AND PENALTIES."  THE FINANCIAL SUPPORT REQUIRED RELATES,
THEREFORE, TO THE WORK OF THE UNION IN THE REALM OF COLLECTIVE
BARGAINING.  NO MORE PRECISE ALLOCATION OF UNION OVERHEAD TO INDIVIDUAL
MEMBERS SEEMS TO US TO BE NECESSARY.  THE PROHIBITION OF "FINES AND
PENALTIES" PRECLUDES THE IMPOSITION OF FINANCIAL BURDENS FOR
DISCIPLINARY PURPOSES.  IF "ASSESSMENTS" ARE IN FACT IMPOSED FOR
PURPOSES NOT GERMANE TO COLLECTIVE BARGAINING, (FN7) A DIFFERENT
PROBLEM WOULD BE PRESENTED. 

WIDE-RANGED PROBLEMS ARE TENDERED UNDER THE FIRST AMENDMENT.  IT IS
ARGUED THAT THE UNION SHOP AGREEMENT FORCES MEN INTO IDEOLOGICAL AND
POLITICAL ASSOCIATIONS WHICH VIOLATE THEIR RIGHT TO FREEDOM OF
CONSCIENCE, FREEDOM OF ASSOCIATION, AND FREEDOM OF THOUGHT PROTECTED BY
THE BILL OF RIGHTS.  (FN8)  IT IS SAID THAT ONCE A MAN BECOMES A MEMBER
OF THESE UNIONS HE IS SUBJECT TO VAST DISCIPLINARY CONTROL (FN9) AND
THAT BY FORCE OF THE FEDERAL ACT UNIONS NOW CAN MAKE HIM CONFORM TO
THEIR IDEOLOGY. 

ON THE PRESENT RECORD, THERE IS NO MORE AN INFRINGEMENT OR IMPAIRMENT
OF FIRST AMENDMENT RIGHTS THAN THERE WOULD BE IN THE CASE OF A LAWYER
WHO BY STATE LAW IS REQUIRED TO BE A MEMBER OF AN INTEGRATED BAR.  IT
IS ARGUED THAT COMPULSORY MEMBERSHIP WILL BE USED TO IMPAIR FREEDOM OF
EXPRESSION.  BUT THAT PROBLEM IS NOT PRESENTED BY THIS RECORD. 
CONGRESS ENDEAVORED TO SAFEGUARD AGAINST THAT POSSIBILITY BY MAKING
EXPLICIT THAT NO CONDITIONS TO MEMBERSHIP MAY BE IMPOSED EXCEPT AS
RESPECTS "PERIODIC DUES, INITIATION FEES, AND ASSESSMENTS."  IF OTHER
CONDITIONS ARE IN FACT IMPOSED, OR IF THE EXACTION OF DUES, INITIATION
FEES, OR ASSESSMENTS IS USED AS A COVER FOR FORCING IDEOLOGICAL
CONFORMITY OR OTHER ACTION IN CONTRAVENTION OF THE FIRST AMENDMENT,
THIS JUDGMENT WILL NOT PREJUDICE THE DECISION IN THAT CASE.  FOR WE
PASS NARROWLY ON SEC. 2, ELEVENTH OF THE RAILWAY LABOR ACT.  WE ONLY
HOLD THAT THE REQUIREMENT FOR FINANCIAL SUPPORT OF THE COLLECTIVE
BARGAINING AGENCY BY ALL WHO RECEIVE THE BENEFITS OF ITS WORK IS WITHIN
THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE AND DOES NOT VIOLATE
EITHER THE FIRST OR THE FIFTH AMENDMENTS.  WE EXPRESS NO OPINION ON THE
USE OF OTHER CONDITIONS TO SECURE OR MAINTAIN MEMBERSHIP IN A LABOR
ORGANIZATION OPERATING UNDER A UNION OR CLOSED SHOP AGREEMENT. 
REVERSED. 

FN1  THIS CONSTITUTIONAL PROVISION IS IMPLEMENTED BY NEB. REV. STAT.,
1943, SEC.  48-217, WHICH PROVIDES:    "LABOR ORGANIZATIONS; NO DENIAL
OF EMPLOYMENT; CLOSED SHOP NOT PERMITTED.  TO MAKE OPERATIVE THE
PROVISIONS OF SECTIONS 13, 14 AND 15 OF ARTILCE 15 OF THE CONSTITUTION
OF NEBRASKA, NO PERSON SHALL BE DENIED EMPLOYMENT BECAUSE OF MEMBERSHIP
IN OR AFFILIATION WITH, OR RESIGNATION OR EXPULSION FROM A LABOR
ORGANIZATION OR BECAUSE OF REFUSAL TO JOIN OR AFFILIATE WITH A LABOR
ORGANIZATION; NOR SHALL ANY INDIVIDUAL OR CORPORATION OR ASSOCIATION OF
ANY KIND ENTER INTO ANY CONTRACT, WRITTEN OR ORAL, TO EXCLUDE PERSONS
FROM EMPLOYMENT BECAUSE OF MEMBERSHIP IN OR NONMEMBERSHIP IN A LABOR
ORGANIZATION." 

FN2  SECTION 2, ELEVENTH READS AS FOLLOWS: 

"ELEVENTH.  NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS ACT, OR OF
ANY OTHER STATUTE OR LAW OF THE UNITED STATES, OR TERRITORY THEREOF, OR
OF ANY STATE, ANY CARRIER OR CARRIERS AS DEFINED IN THIS ACT AND A
LABOR ORGANIZATION OR LABOR ORGANIZATIONS DULY DESIGNATED AND
AUTHORIZED TO REPRESENT EMPLOYEES IN ACCORDANCE WITH THE REQUIREMENTS
OF THIS ACT SHALL BE PERMITTED: 

"(A)  TO MAKE AGREEMENTS, REQUIRING, AS A CONDITION OF CONTINUED
EMPLOYMENT, THAT WITHIN SIXTY DAYS FOLLOWING THE BEGINNING OF SUCH
EMPLOYMENT, OR THE EFFECTIVE DATE OF SUCH AGREEMENTS, WHICHEVER IS THE
LATER, ALL EMPLOYEES SHALL BECOME MEMBERS OF THE LABOR ORGANIZATION
REPRESENTING THEIR CRAFT OR CLASS:  PROVIDED, THAT NO SUCH AGREEMENT
SHALL REQUIRE SUCH CONDITION OF EMPLOYMENT WITH RESPECT TO EMPLOYEES TO
WHOM MEMBERSHIP IS NOT AVAILABLE UPON THE SAME TERMS AND CONDITIONS AS
ARE GENERALLY APPLICABLE TO ANY OTHER MEMBER OR WITH RESPECT TO
EMPLOYEES TO WHOM MEMBERSHIP WAS DENIED OR TERMINATED FOR ANY REASON
OTHER THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE PERIODIC DUES,
INITIATION FEES, AND ASSESSMENTS (NOT INCLUDING FINES AND PENALTIES)
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING
MEMBERSHIP. 

"(B)  TO MAKE AGREEMENTS PROVIDING FOR THE DEDUCTION BY SUCH CARRIER
OR CARRIERS FROM THE WAGES OF ITS OR THEIR EMPLOYEES IN A CRAFT OR
CLASS AND PAYMENT TO THE LABOR ORGANIZATION REPRESENTING THE CRAFT OR
CLASS OF SUCH EMPLOYEES, OF ANY PERIODIC DUES, INITIATION FEES, AND
ASSESSMENTS (NOT INCLUDING FINES AND PENALTIES) UNIFORMLY REQUIRED AS A
CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP:  PROVIDED, THAT NO SUCH
AGREEMENT SHALL BE EFFECTIVE WITH RESPECT TO ANY INDIVIDUAL EMPLOYEE
UNTIL HE SHALL HAVE FURNISHED THE EMPLOYER WITH A WRITTEN ASSIGNMENT TO
THE LABOR ORGANIZATION OF SUCH MEMBERSHIP DUES, INITIATION FEES, AND
ASSESSMENTS, WHICH SHALL BE REVOCABLE IN WRITING AFTER THE EXPIRATION
OF ONE YEAR OR UPON THE TERMINATION DATE OF THE APPLICABLE COLLECTIVE
AGREEMENT, WHICHEVER OCCURS SOONER. 

"(C)  THE REQUIREMENT OF MEMBERSHIP IN A LABOR ORGANIZATION IN AN
AGREEMENT MADE PURSUANT TO SUBPARAGRAPH (A) SHALL BE SATISFIED, AS TO
BOTH A PRESENT OR FUTURE EMPLOYEE IN ENGINE, TRAIN, YARD, OR HOSTLING
SERVICE, THAT IS, AN EMPLOYEE ENGAGED IN ANY OF THE SERVICES OR
CAPACITIES COVERED IN SECTION 3, FIRST (H) OF THIS ACT DEFINING THE
JURISDICTIONAL SCOPE OF THE FIRST DIVISION OF THE NATIONAL RAILROAD
ADJUSTMENT BOARD, IF SAID EMPLOYEE SHALL HOLD OR ACQUIRE MEMBERSHIP IN
ANY ONE OF THE LABOR ORGANIZATIONS, NATIONAL IN SCOPE, ORGANIZED IN
ACCORDANCE WITH THIS ACT AND ADMITTING TO MEMBERSHIP EMPLOYEES OF A
CRAFT OR CLASS IN ANY OF SAID SERVICES; AND NO AGREEMENT MADE PURSUANT
TO SUBPARAGRAPH (B) SHALL PROVIDE FOR DEDUCTIONS FROM HIS WAGES FOR
PERIODIC DUES, INITIATION FEES, OR ASSESSMENTS PAYABLE TO ANY LABOR
ORGANIZATION OTHER THAN THAT IN WHICH HE HOLDS MEMBERSHIP: PROVIDED,
HOWEVER, THAT AS TO AN EMPLOYEE IN ANY OF SAID SERVICES ON A PARTICULAR
CARRIER AT THE EFFECTIVE DATE OF ANY SUCH AGREEMENT ON A CARRIER, WHO
IS NOT A MEMBER OF ANY ONE OF THE LABOR ORGANIZATIONS, NATIONAL IN
SCOPE, ORGANIZED IN ACCORDANCE WITH THIS ACT AND ADMITTING TO
MEMBERSHIP EMPLOYEES OF A CRAFT OR CLASS IN ANY OF SAID SERVICES, SUCH
EMPLOYEE, AS A CONDITION OF CONTINUING HIS EMPLOYMENT, MAY BE REQUIRED
TO BECOME A MEMBER OF THE ORGANIZATION REPRESENTING THE CRAFT IN WHICH
HE IS EMPLOYED ON THE EFFECTIVE DATE OF THE FIRST AGREEMENT APPLICABLE
TO HIM:  PROVIDED, FURTHER, THAT NOTHING HEREIN OR IN ANY SUCH
AGREEMENT OR AGREEMENTS SHALL PREVENT AN EMPLOYEE FROM CHANGING
MEMBERSHIP FROM ONE ORGANIZATION TO ANOTHER ORGANIZATION ADMITTING TO
MEMBERSHIP EMPLOYEES OF A CRAFT OR CLASS IN ANY OF SAID SERVICES. 

"(D)  ANY PROVISIONS IN PARAGRAPHS FOURTH AND FIFTH OF SECTION 2 OF
THIS ACT, IN CONFLICT HEREWITH ARE TO THE EXTENT OF SUCH CONFLICT
AMENDED." 

FN3  THE UNION SHOP IS A VARIANT OF THE CLOSED SHOP, SINCE UNION
MEMBERSHIP IS REQUIRED OF EVERY EMPLOYEE AFTER THE 60-DAY PERIOD
DESIGNATED IN THE ACT. 

IN 1954 THE BUREAU OF LABOR STATISTICS MADE AN ANALYSIS OF 1,716
COLLECTIVE-BARGAINING AGREEMENTS IN EFFECT IN INDUSTRIES NOT REGULATED
BY THE RAILWAY LABOR ACT.  OF THE 7,405,000 WORKERS COVERED BY THE
AGREEMENTS STUDIED, 64% WERE EMPLOYED UNDER UNION SHOP PROVISIONS.  78
MONTHLY LABOR REVIEW, NO. 6, 649. 

FN4  ONCE COURTS ENFORCE THE AGREEMENT THE SANCTION OF GOVERNMENT IS,
OF COURSE, PUT BEHIND THEM.  SEE SHELLEY V. KRAEMER, 334 U.S. 1; HURD
V. HODGE, 334 U.S. 24; BARROWS V. JACKSON, 346 U.S. 249. 

FN5  THE PARALLEL PROVISION IN SEC. 14(B) OF THE TAFT-HARTLEY ACT (61
STAT. 151, 29 U.S.C. SEC. 164(B)) MAKES THE UNION SHOP AGREEMENT GIVE
WAY BEFORE A STATE LAW PROHIBITING IT. 

FN6  SEE MASON, BRANDEIS, A FREE MAN'S LIFE (1946), PP. 303-304,
WHICH QUOTES A LETTER OF FEBRUARY 26, 1912, FROM BRANDEIS TO LINCOLN
STEFFENS: 

"  ...  BUT THE AMERICAN PEOPLE SHOULD NOT, AND WILL NOT, ACCEPT
UNIONISM IF IT INVOLVES THE CLOSED SHOP.  THEY WILL NOT CONSENT TO THE
EXCHANGE OF THE TYRANNY OF THE EMPLOYER FOR THE TYRANNY OF THE
EMPLOYEE.  UNIONISM THEREFORE CANNOT MAKE A GREAT ADVANCE UNTIL IT
ABANDONS THE CLOSED SHOP; AND IT CANNOT ACCEPT THE OPEN SHOP AS AN
ALTERNATIVE.  THE OPEN SHOP MEANS THE DESTRUCTION OF THE UNION. 

"THE ADVANCE OF UNIONISM DEMANDS THEREFORE SOME RELATION BETWEEN THE
EMPLOYER AND THE EMPLOYEE OTHER THAN EITHER THE CLOSED OR OPEN SHOP,
AND I FEEL CONFIDENT THAT WE HAVE FOUND THE SOLUTION IN THE
PREFERENTIAL UNION SHOP." 

FN7  A NUMBER OF APPELLANT UNIONS HAVE BROAD POWERS TO LEVY
ASSESSMENTS FOR UNSPECIFIED PURPOSES.  FOR EXAMPLE, THE BYLAWS OF THE
RAILROAD YARDMASTERS OF AMERICA AUTHORIZE THE EXECUTIVE BOARD TO "LEVY
ASSESSMENTS UPON ALL THE MEMBERS AFFECTED WHEN IN ITS OPINION SUCH
ASSESSMENTS ARE NECESSARY."   SEC.  26.  AND SEC. 27 PROVIDES:  "LOCAL
LODGES MAY LEVY SUCH ASSESSMENTS UPON THEIR RESPECTIVE MEMBERSHIPS AS
MAY BE FOUND NECESSARY  ...  ."  THE GENERAL COMMITTEE OF A SUBORDINATE
DIVISION OF THE ORDER OF RAILROAD TELEGRAPHERS IS AUTHORIZED "TO LEVY
SUCH ASSESSMENTS UPON THE MEMBERS EMPLOYED UPON THE TRANSPORTATION
COMPANY OVER WHICH IT HAS JURISDICTION AS MAY BE NECESSARY TO CARRY ON
ITS WORK."  SUBORDINATE DIVISION STATUTES, SEC. 42(H).  AND SEE
CONSTITUTION OF THE BROTHERHOOD OF RAILROAD SIGNALMEN OF AMERICA, ART.
I, SEC. 6; CONSTITUTION OF THE AMERICAN RAILWAY SUPERVISORS
ASSOCIATION, ART. XVI, SEC. 7. 

FN8  THE CONSTITUTIONS AND BYLAWS OF SEVERAL APPELLANT UNIONS PLACE
RESTRICTIONS ON THE INDIVIDUAL MEMBERS. 

A. SOME DISQUALIFY PERSONS FROM MEMBERSHIP FOR THEIR POLITICAL VIEWS
AND ASSOCIATIONS.  ART. XIII, SEC. 4, OF THE CONSTITUTION OF THE
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES BARS FROM MEMBERSHIP ANYONE
WHO IS A MEMBER OF THE COMMUNIST PARTY.  ANOTHER CONSTITUTION RENDERS
INELIGIBLE FOR MEMBERSHIP ANY PERSON WHO IS "A MEMBER OF THE COMMUNIST
PARTY OR OF ANY OTHER SUBVERSIVE GROUP, OR WHO SUBSCRIBES TO THE
DOCTRINES OF ANY SUCH GROUPS."  SUBORDINATE LODGE CONSTITUTION OF THE
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS,
BLACKSMITHS, FORGERS AND HELPERS OF AMERICA, ART. VI, SEC. 1.  AND SEE
SUBORDINATE LODGE CONSTITUTION OF THE BROTHERHOOD RAILWAY CARMEN OF
AMERICA, SEC. 6(A).  ART. 16, SEC. 1(A), OF THE CONSTITUTION OF THE
SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION PROVIDES:  "NO MEMBER OF
THE COMMUNIST PARTY OR ANY PERSON WHO ADVOCATES THE OBJECTIVES THEREOF,
AND NO PERSON WHO BELONGS TO OR SUPPORTS THE POLICIES OF ANY OTHER
ORGANIZATION OR GROUP WHICH ADVOCATES THE OVERTHROW OF THE UNITED
STATES GOVERNMENT OR THE GOVERNMENT OF THE DOMINION OF CANADA BY FORCE
SHALL BE ELIGIBLE" FOR MEMBERSHIP. 

THE CONSTITUTION OF ONE OF APPELLANT UNIONS PROVIDES THAT NO PERSON
SHALL BE ELIGIBLE FOR UNION OFFICE "IF SUCH PERSON ASSOCIATES HIMSELF
WITH COMMUNIST, FASCIST OR SIMILAR ORGANIZATIONS, OR THE KU KLUX KLAN,
OR COLUMBIANS.  SUCH ELIGIBILITY SHALL LIKEWISE BE DENIED WHERE A
PERSON ASSOCIATES HIMSELF WITH, LENDS SUPPORT OR SUBSCRIBES TO THE
SUBVERSIVE DOCTRINES OF THE ORGANIZATIONS ENUMERATED HEREIN, SIMILAR
ORGANIZATIONS, OR ANY ORGANIZATION OR GROUP THAT EXPOUNDS OR PROMOTES
ANY DOCTRINE OR PHILOSOPHY INIMICAL OR SUBVERSIVE TO THE FUNDAMENTAL
PURPOSES OF THE CONSTITUTION OF THE GOVERNMENT OF THE UNITED STATES." 
CONSTITUTION OF THE HOTEL & RESTAURANT EMPLOYEES AND BARTENDERS
INTERNATIONAL UNION, ART. XI, SEC. 18.  THE CONSTITUTION OF THE
INTERNATIONAL ASSOCIATION OF MACHINISTS, ART. I, SEC. 5, PROVIDES:  "A
MEMBER WHO ADVOCATES OR ENCOURAGES COMMUNISM, FASCISM, NAZISM, OR ANY
OTHER TOTALITARIAN PHILOSOPHY, OR WHO, BY OTHER ACTIONS, GIVES SUPPORT
TO THESE 'PHILOSOPHIES' OR 'ISMS' IS NOT ELIGIBLE TO HOLD OFFICE IN THE
I.A.M." 

B. THE GRAND LODGE CONSTITUTION OF THE BROTHERHOOD RAILWAY CARMEN OF
AMERICA PROHIBITS MEMBERS FROM "INTERFERING WITH LEGISLATIVE MATTERS
AFFECTING NATIONAL, STATE, TERRITORIAL, DOMINION OR PROVINCIAL
LEGISLATION, ADVERSELY AFFECTING THE INTERESTS OF OUR MEMBERS."  SEC. 
64. 

THE CONSTITUTION OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, ANOTHER OF THE APPELLANT UNIONS, FORBIDS ANY MEMBER FROM
"CREATING OR ATTEMPTING TO CREATE DISSATISFACTION OR DISSENSION AMONG
ANY OF THE MEMBERS OR AMONG L.U.'S (LOCAL UNIONS) OF THE I.B.E.W." 
ART.  XXVII, SEC. 2(8).  THE SAME ARTICLE AND SECTION FURTHER PROHIBITS
ANY MEMBER FROM: 

"(15) ATTENDING OR PARTICIPATING IN ANY GATHERING OR MEETING
WHATSOEVER, HELD OUTSIDE MEETINGS OF A L.U., AT WHICH THE AFFAIRS OF
THE L.U. ARE DISCUSSED, OR AT WHICH CONCLUSIONS ARE ARRIVED AT
REGARDING THE BUSINESS AND THE AFFAIRS OF A L.U., OR REGARDING L.U.
OFFICERS OR A CANDIDATE OR CANDIDATES FOR L.U. OFFICE. 

"(16)  MAILING, HANDING OUT, OR POSTING CARDS, HANDBILLS, LETTERS,
MARKED BALLOTS OR POLITICAL LITERATURE OF ANY KIND, OR DISPLAYING
STREAMERS, BANNERS, SIGNS OR ANYTHING ELSE OF A POLITICAL NATURE, OR
BEING A PARTY IN ANY WAY TO SUCH BEING DONE IN AN EFFORT TO INDUCE
MEMBERS TO VOTE FOR OR AGAINST ANY CANDIDATE OR CANDIDATES FOR L.U.
OFFICE, OR CANDIDATES TO CONVENTIONS."  AND SEE ART. 17, SEC. 1(B),
CONSTITUTION OF THE SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION;
ART. XXIV, SEC. 2, CONSTITUTION OF THE INTERNATIONAL ASSOCIATION OF
MACHINISTS. 

C. A NUMBER OF THE CONSTITUTIONS OF APPELLANT UNIONS PROVIDE FOR THE
USE OF COMPULSORY DUES AND ASSESSMENTS TO FINANCE UNION INSURANCE AND
DEATH BENEFIT PLANS.  SEE, E.G., CONSTITUTION OF THE INTERNATIONAL
BROTHERHOOD OF FIREMEN AND OILERS, ART. I, SEC. 22; CONSTITUTION OF THE
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS,
BLACKSMITHS, FORGERS AND HELPERS OF AMERICA, ART. VII, SEC. 2. 

FN9  SEE SUMMERS, DISCIPLINARY POWERS OF UNIONS (1950), 3 IND. &
LAB.  REL.  REV. 483; SUMMERS, DISCIPLINARY PROCEDURES OF UNIONS
(1950), 4 IND. & LAB.  REL.  REV. 15; SUMMERS, LEGAL LIMITATIONS ON
UNION DISCIPLINE (1951), 64 HARV. L. REV. 1049; AARON & KOMAROFF,
STATUTORY REGULATION OF INTERNAL UNION AFFAIRS (1949), 44 ILL. L. REV.
425, 631; WIRTZ, GOVERNMENT BY PRIVATE GROUPS (1953), 13 LA. L. REV.
440; WILLIAMS, THE POLITICAL LIBERTIES OF LABOR UNION MEMBERS (1954),
32 TEX. L. REV. 826. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE PROVISION OF LAW NOW CHALLENGED IS THE LATEST EXERCISE BY
CONGRESS OF ITS POWER UNDER THE COMMERCE CLAUSE TO PROMOTE PEACEFUL
INDUSTRIAL RELATIONS IN THE FUNCTIONING OF INTERSTATE RAILROADS AND
THEREBY TO FURTHER THE NATIONAL WELL-BEING.  A MERE RECITAL OF THE
COURSE OF HISTORY IN THIS IMPORTANT FIELD GOES A LONG WAY TO INDICATE
THAT THE MAIN POINT OF ATTACK AGAINST THE ACT OF JANUARY 10, 1951, 64
STAT. 1238, RAISES QUESTIONS NOT OF CONSTITUTIONAL VALIDITY BUT OF
POLICY IN A DOMAIN OF LEGISLATION PECULIARLY UPON TO CONFLICTING VIEWS
OF POLICY.  THESE EFFORTS CONSTITUTE A BODY OF EMPIRIC RESPONSES BY
CONGRESS TO NEW PROBLEMS OR NEW INSIGHT FOR DEALING WITH OLD PROBLEMS. 

THE COURSE OF LEGISLATION AFFECTING INDUSTRIAL CONTROVERSIES ON
RAILROADS FLOWS THROUGH THESE STATUTES:  THE ACT OF OCTOBER 1, 1888, 25
STAT. 501; THE ERDMAN ACT OF JUNE 1, 1898, 30 STAT. 424, GROWING OUT OF
THE PULLMAN STRIKE OF 1894, SEE IN RE DEBS, 158 U.S. 564; THE NEWLANDS
ACT OF JULY 15, 1913, 38 STAT. 103; THE ADAMSON LAW OF SEPTEMBER 3,
1916, 39 STAT. 721; TITLE III OF THE TRANSPORTATION ACT OF 1920, 41
STAT. 456, 469; THE RAILWAY LABOR ACT OF MAY 20, 1926, 44 STAT. 577;
THE ACT OF JUNE 21, 1934, 48 STAT.  1185, AMENDING THE RAILWAY LABOR
ACT.    NEARLY FIFTY YEARS AGO, THE RAILROADS SUCCESSFULLY ATTACKED THE
CONSTITUTIONALITY OF A VITAL FEATURE OF THE ACT OF JUNE 1, 1898,
WHEREBY CONGRESS MADE IT A CRIMINAL OFFENSE TO BAR EMPLOYMENT IN
INTERSTATE RAILROADS MERELY BECAUSE OF LABOR UNION MEMBERSHIP.  ADAIR
V. UNITED STATES, 208 U.S. 161 (1908).  IT IS FAIR TO SAY THAT THIS
DECISION MARKS THE NADIR OF DENIAL TO CONGRESS OF THE POWER TO REGULATE
THE CONDITIONS FOR ASSURING THE NATION'S DEPENDENCE ON THE PEACEFUL AND
EFFECTIVE OPERATION OF ITS RAILROADS.  THE CRITICISMS THAT THE CASE
AROUSED, SEE, E.G., RICHARD OLNEY, DISCRIMINATION AGAINST UNION LABOR -
LEGAL?, 42 AMER.  L. REV. 161 (1908), AND ROSCOE POUND, LIBERTY OF
CONTRACT, 18 YALE L.J. 454 (1909), WERE REFLECTED IN LATER DECISIONS OF
THE COURT.  NEITHER THE COMMERCE CLAUSE NOR THE DUE PROCESS CLAUSE WAS
THEREAFTER CONCEIVED, AT LEAST SO FAR AS THEY RESTRAIN RAILROAD LABOR
REGULATION, TO BE CONFINED WITHIN SUCH DOCTRINAIRE AND FROZEN BOUNDS AS
WERE CONFINED THE ASSUMPTIONS WHICH UNDERLAY THE DECISION IN THE ADAIR
CASE.  THUS, THE COURT SUSTAINED THE ADAMSON LAW, WHICH WAS ENACTED TO
AVERT THE THREATENED NATION-WIDE RAILROAD STRIKE OF 1916, WILSON V.
NEW, 243 U.S. 332 (1917); TITLE III OF THE TRANSPORTATION ACT OF 1920,
PENNSYLVANIA R. CO. V. RAILROAD LABOR BOARD, 261 U.S. 72 (1923); AND
THE RAILWAY LABOR ACT OF 1926, TEXAS & NEW ORLEANS R. CO. V.
BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, 281 U.S. 548 (1930); BUT SEE
RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330 (1935). 

THE CHANGE IN THE COURT'S UNDERSTANDING OF INDUSTRIAL PROBLEMS,
CERTAINLY AS THEY AFFECT RAILROADS, IN THEIR BEARING UPON THE COUNTRY'S
COMMERCE AND ALL THAT THEREBY HANGS, TO NO SMALL DEGREE REFLECTED THE
CHANGED ATTITUDE OF THE RAILROADS TOWARDS THE ROLE OF RAILROAD LABOR
UNIONS IN THE DISCHARGE OF THE FUNCTIONS OF RAILROADS.  AS STRIKING
EVIDENCE AS ANY OF THIS IMPORTANT SHIFT IN OPINION IS THE FACT THAT THE
RAILWAY LABOR ACT OF 1926 CAME ON THE STATUTE BOOKS THROUGH AGREEMENT
BETWEEN THE RAILROADS AND THE RAILROAD UNIONS ON THE NEED FOR SUCH
LEGISLATION.  IT IS ACCURATE TO SAY THAT THE RAILROADS AND THE RAILROAD
UNIONS BETWEEN THEM WROTE THE RAILWAY LABOR ACT OF 1926 AND CONGRESS
FORMALLY ENACTED THEIR THEIR AGREEMENT.  I DOUBT WHETHER THERE IS
ANOTHER INSTANCE IN THE HISTORY OF IMPORTANT LEGISLATION IN WHICH
ACKNOWLEDGMENT WAS SO CANDIDLY MADE BY A PRESIDENT OF THE UNITED STATES
THAT AGREEMENT REACHED BETWEEN INDUSTRIAL DISPUTANTS REGARDING
LEGISLATION APPROPRIATE FOR SECURING THEIR PEACEFUL RELATIONS SHOULD
BECOME LAW.  "I AM INFORMED," THE PRESIDENT REPORTED TO CONGRESS IN HIS
ANNUAL MESSAGE OF DECEMBER 8, 1925, "THAT THE RAILROAD MANAGERS AND
THEIR EMPLOYEES HAVE REACHED A SUBSTANTIAL AGREEMENT AS TO WHAT
LEGISLATION IS NECESSARY TO REGULATE AND IMPROVE THEIR RELATIONSHIP. 
WHENEVER THEY BRING FORWARD SUCH PROPOSALS, WHICH SEEM SUFFICIENT ALSO
TO PROTECT THE INTERESTS OF THE PUBLIC, THEY SHOULD BE ENACTED INTO
LAW."  H.R. DOC. NO. 2, 69TH CONG., 1ST SESS., P. 18.  THE PRESIDENT
WAS CALVIN COOLIDGE. 

WE HAVE COME FULL CIRCLE FROM THE POINT OF VIEW IN THE ADAIR CASE. 
THERE THE RAILROADS, TO REPEAT, SUCCESSFULLY RESISTED AN ACT OF
CONGRESS WHICH OUTLAWED WHAT COLLOQUIALLY BECAME KNOWN AS THE "YELLOW
DOG CONTRACT."  WE ARE NOW ASKED TO DECLARE IT BEYOND THE POWER OF
CONGRESS TO AUTHORIZE RAILROADS TO ENTER INTO VOLUNTARY AGREEMENTS WITH
THE UNIONS TO WHICH THE OVERWHELMING PROPORTION OF RAILWAY EMPLOYEES
BELONG WHEREBY ALL THEIR WORKERS ARE REQUIRED TO BELONG TO SUCH UNIONS,
PROVIDED, OF COURSE, THAT THE UNIONS BE OPEN UNIONS, I.E., THAT
MEMBERSHIP IN THE UNIONS BE AVAILABLE ON ORDINARY, APPROPRIATE TERMS. 
IT SEEMS TO ME THAT THE CONSTITUTIONAL OBJECTIONS TO THIS LEGISLATION
WERE CONCLUSIVELY AND COMPENDIOUSLY ANSWERED BY MR. JUSTICE HOLMES IN
HIS DISSENT IN ADAIR V. UNITED STATES, SUPRA: 

"WHERE THERE IS, OR GENERALLY IS BELIEVED TO BE, AN IMPORTANT GROUND
OF PUBLIC POLICY FOR RESTRAINT THE CONSTITUTION DOES NOT FORBID IT,
WHETHER THIS COURT AGREES OR DISAGREES WITH THE POLICY PURSUED.  IT
CANNOT BE DOUBTED THAT TO PREVENT STRIKES, AND, SO FAR AS POSSIBLE, TO
FOSTER ITS SCHEME OF ARBITRATION, MIGHT BE DEEMED BY CONGRESS AN
IMPORTANT POINT OF POLICY, AND I THINK IT IMPOSSIBLE TO SAY THAT
CONGRESS MIGHT NOT REASONABLY THINK THAT THE PROVISION IN QUESTION
WOULD HELP A GOOD DEAL TO CARRY ITS POLICY ALONG.  BUT SUPPOSE THE ONLY
EFFECT REALLY WERE TO TEND TO BRING ABOUT THE COMPLETE UNIONIZING OF
SUCH RAILROAD LABORERS AS CONGRESS CAN DEAL WITH, I THINK THAT OBJECT
ALONE WOULD JUSTIFY THE ACT.  I QUITE AGREE THAT THE QUESTION WHAT AND
HOW MUCH GOOD LABOR UNIONS DO, IS ONE ON WHICH INTELLIGENT PEOPLE MAY
DIFFER, - I THINK THAT LABORING MEN SOMETIMES ATTRIBUTE TO THEM
ADVANTAGES, AS MANY ATTRIBUTE TO COMBINATIONS OF CAPITAL DISADVANTAGES,
THAT REALLY ARE DUE TO ECONOMIC CONDITIONS OF A FAR WIDER AND DEEPER
KIND - BUT I COULD NOT PRONOUNCE IT UNWARRANTED IF CONGRESS SHOULD
DECIDE THAT TO FOSTER A STRONG UNION WAS FOR THE BEST INTEREST, NOT
ONLY OF THE MEN, BUT OF THE RAILROADS AND THE COUNTRY AT LARGE."  208
U.S., AT 191-192. 

THE COURT HAS PUT TO ONE SIDE SITUATIONS NOT NOW BEFORE US FOR WHICH
THE PROTECTION OF THE FIRST AMENDMENT WAS EARNESTLY URGED AT THE BAR. 
I, TOO, LEAVE THEM TO ONE SIDE. 
..END :




















CAHILL V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. 351 U.S. 183 


NO. 436.  DECIDED MAY 14, 1956.  - 350 U.S. 898, JUDGMENT RECALLED AND
AMENDED. 


1.  THE MOTION OF RESPONDENT TO RECALL THE JUDGMENT OF THIS COURT IN
THIS CASE IS GRANTED, AND THE JUDGMENT IS AMENDED TO PROVIDE FOR A
REMAND OF THE CAUSE TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS. 
PP. 183-184. 

2.  THE ORIGINAL ORDER ENTERED BY THE COURT IN THIS CASE, 350 U.S.
898, IS DEEMED ERRONEOUS AND IT IS RECALLED IN THE INTEREST OF
FAIRNESS.  P. 184. 

3.  EVEN WHEN A PETITION FOR REHEARING HAS BEEN DENIED, RULE 58(4) OF
THE RULES OF THIS COURT, BARRING CONSECUTIVE AND OUT-OF-TIME PETITIONS
FOR REHEARING, DOES NOT PRECLUDE A MOTION TO CORRECT THE KIND OF ERROR
INVOLVED IN THE COURT'S ORIGINAL ORDER IN THIS CASE.  P. 184. 

4.  THIS CAUSE IS NOT MOOT, THOUGH THE JUDGMENT HAS BEEN PAID.  P.
184. 

CAHILL V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. 

ON A MOTION TO RECALL AND AMEND THE JUDGMENT. 

PER CURIAM. 

RESPONDENT FILED A MOTION TO RECALL AND AMEND THE JUDGMENT IN THE
ABOVE-ENTITLED CAUSE, 350 U.S. 898, FOR THE PURPOSE OF REMANDING THE
CAUSE TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT FOR
FURTHER PROCEEDINGS.  PRIOR TO THE FILING OF THIS MOTION, AND AFTER THE
DISTRICT COURT DENIED AN APPLICATION FOR A STAY OF EXECUTION, THE
JUDGMENT WAS SATISFIED; BUT PETITIONER WAS INFORMED THAT RESPONDENT
INTENDED TO PURSUE ITS REMEDIES NOTWITHSTANDING PAYMENT OF THE
JUDGMENT. 

THE MOTION OF RESPONDENT TO RECALL THE JUDGMENT IS GRANTED.  IT IS
ORDERED THAT THE CERTIFIED COPY OF THE JUDGMENT SENT TO THE DISTRICT
COURT BE RECALLED AND THAT THE JUDGMENT BE AMENDED SO AS TO PROVIDE FOR
A REMAND OF THE CAUSE TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT FOR FURTHER PROCEEDINGS.  BOUDOIN V. LYKES BROTHERS S.S.
CO., 348 U.S. 336, 350 U.S. 811; RULE 58(4), SUPREME COURT RULES. 

WE DEEM OUR ORIGINAL ORDER ERRONEOUS AND RECALL IT IN THE INTEREST OF
FAIRNESS.  SIMILAR RELIEF WAS REQUESTED BY RESPONDENT IN A PETITION FOR
REHEARING, DENIED IN 350 U.S. 943.  RULE 58(4) BARS CONSECUTIVE AND OUT
OF-TIME PETITIONS FOR REHEARING.  THE BOUDOIN CASE, HOWEVER, CONCERNED
A MOTION TO RECALL A JUDGMENT THAT ASKED FOR ALMOST IDENTICAL RELIEF. 
YET, IF IT HAD BEEN CONSIDERED A PETITION FOR REHEARING, IT WAS FILED
OUT OF TIME.  THE GRANT OF THE MOTION IN THE BOUDOIN CASE SHOWS THAT
RULE 58(4) DOES NOT PROHIBIT MOTIONS TO CORRECT THIS KIND OF ERROR. 

COMPARE AS TO MOOTNESS, BAKERY DRIVERS UNION V. WAGSHAL, 333 U.S.
437, 442; DAKOTA COUNTY V. GLIDDEN, 113 U.S. 222, 224.   THE PROBLEMS
THAT MAY ARISE FROM DEMAND FOR REPAYMENT ARE NOT BEFORE US. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS,
AND MR. JUSTICE CLARK, JOIN, DISSENTING. 

IN THE INTEREST OF FAIRNESS WE WOULD NOT REMAND THIS CASE TO THE
COURT OF APPEALS.  CAHILL BROUGHT THIS ACTION UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT (FN1) TO RECOVER FOR INJURIES SUSTAINED WHILE
WORKING AS A RAILROAD BRAKEMAN.  HE WAS HURT ON A BUSY HIGHWAY WHICH
HAD RAILROAD TRACKS RUNNING DOWN ITS CENTER.  WHILE FLAGGING TRAFFIC
BEHIND A TRAIN STALLED ON THESE TRACKS CAHILL WAS STRUCK BY A TRUCK
WHICH STARTED UP SUDDENLY.  HIS COMPLAINT CHARGED THAT THE RAILROAD WAS
NEGLIGENT IN SENDING HIM TO WORK IN SUCH A DANGEROUS PLACE WITHOUT
PROPER WARNING OR INSTRUCTIONS.  THE JURY FOUND FOR CAHILL AND AWARDED
HIM DAMAGES.  THE RAILROAD ASKED THE COURT OF APPEALS TO REVERSE
CAHILL'S JUDGMENT ON TWO GROUNDS:  (1) THERE WAS INSUFFICIENT EVIDENCE
TO PERMIT SUBMISSION OF THE CASE TO THE JURY; (2) THE TRIAL JUDGE
ERRONEOUSLY ADMITTED EVIDENCE OF PRIOR ACCIDENTS AT THE SCENE OF
CAHILL'S INJURY OFFERED TO SHOW THE RAILROAD'S NEGLIGENCE IN FAILING TO
WARN HIM OF DANGERS SUCH AS HAD BROUGHT ABOUT THOSE ACCIDENTS. 

THE COURT OF APPEALS REVERSED ON THE GROUND THAT THERE WAS NOT
SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT.  224 F.2D 637.  HAVING
TAKEN THIS ACTION THE COURT OF APPEALS EXPRESSLY STATED THAT IT DID NOT
FIND IT NECESSARY TO PASS ON THE ALLEGED ERROR IN ADMITTING THE
EVIDENCE OF PRIOR ACCIDENTS.  CAHILL THEN ASKED FOR CERTIORARI.  ON
NOVEMBER 21, 1955, WE GRANTED HIS PETITION AND REVERSED THE COURT OF
APPEALS' JUDGMENT THEREBY REINSTATING THE JUDGMENT OF THE DISTRICT
COURT.  350 U.S. 898.  MR. JUSTICE REED DISSENTED.  MR. JUSTICE
FRANKFURTER, MR. JUSTICE BURTON, AND MR. JUSTICE HARLAN EXPRESSED THE
VIEW THAT CERTIORARI SHOULD HAVE BEEN DENIED; THEY DID NOT PARTICIPATE
IN THE DECISION ON THE MERITS.  (FN2)  IN A TIMELY PETITION FOR
REHEARING THE RAILROAD CALLED OUR ATTENTION TO THE FACT THAT ITS
OBJECTION TO THE EVIDENCE OF PRIOR ACCIDENTS HAD NEVER BEEN PASSED ON
BY THE COURT OF APPEALS, URGING THAT WE RECONSIDER OUR JUDGMENT AND
MODIFY IT TO THE EXTENT NECESSARY TO REMAND THE CAUSE TO THE COURT OF
APPEALS TO PASS ON THE QUESTION IT HAD LEFT UNDECIDED.  THIS COURT
DENIED THE PETITION FOR REHEARING.  350 U.S. 943. 

THE RAILROAD'S PRESENT "MOTION TO RECALL" PRESENTS PRECISELY THE SAME
CONTENTION WHICH WAS RAISED IN ITS PETITION FOR REHEARING.  WE ARE
ASKED ONCE MORE TO REMAND THE CASE TO THE COURT OF APPEALS FOR THE
SECOND CIRCUIT FOR THAT COURT TO DETERMINE WHETHER THERE WAS ERROR IN
ADMITTING THE EVIDENCE OF PRIOR ACCIDENTS.  THUS THE "MOTION TO RECALL"
TURNS OUT TO BE A PETITION FOR REHEARING OF A FORMER PETITION FOR
REHEARING.  OR IN SOMEWHAT PLAINER LANGUAGE, THE MOTION TO RECALL TURNS
OUT TO BE A SECOND PETITION FOR REHEARING.  BUT RULE 58(4) OF THIS
COURT DECLARES THAT:  "CONSECUTIVE PETITIONS FOR REHEARINGS, AND
PETITIONS FOR REHEARING THAT ARE OUT OF TIME UNDER THIS RULE, WILL NOT
BE RECEIVED."  WHAT IS IN FACT A SECOND PETITION FOR REHEARING SHOULD
NOT BE RECEIVED SIMPLY BECAUSE IT IS LABELED A "MOTION TO RECALL." 

THERE CAN BE NO POSSIBLE DOUBT THAT A PROPER WAY TO RAISE THE SORT OF
QUESTION HERE PRESENTED IS BY FILING A PETITION FOR REHEARING.  OUR
RECORDS ARE FILLED WITH PROOF OF THIS.  THE LATEST EXAMPLE IS OUR
ACTION IN UNION TRUST CO. V. EASTERN AIR LINES, INC., 350 U.S. 962,
DECIDED FEBRUARY 27, 1956.  WE GRANTED RELIEF IN THAT CASE OF PRECISELY
THE SAME KIND THAT THE RAILROAD HERE ASKED US TO GRANT IN ITS PETITION
FOR REHEARING AND ASKS US AGAIN TO GRANT IN ITS "MOTION TO RECALL." 
THERE IS NOTHING NEW ABOUT GRANTING THE RELIEF HERE REQUESTED IN
RESPONSE TO A PETITION FOR REHEARING.  UPON ONE OCCASION MR. JUSTICE
BRADLEY, SPEAKING FROM THE BENCH, SAID: 

"IT OUGHT TO BE UNDERSTOOD, OR AT LEAST BELIEVED, WHETHER IT IS TRUE
OR NOT, THAT THIS COURT, BEING A COURT OF LAST RESORT, GIVES GREAT
CONSIDERATION TO CASES OF IMPORTANCE AND INVOLVING CONSEQUENCES LIKE
THIS, AND THERE SHOULD BE A FINALITY SOMEWHERE.  THIS CUSTOM OF MAKING
MOTIONS FOR A REHEARING IS NOT A CUSTOM TO BE ENCOURAGED.  IT PREVAILS
IN SOME STATES AS A MATTER OF ORDINARY PRACTICE TO GRANT A REHEARING ON
A MERE APPLICATION FOR IT, BUT THAT PRACTICE WE DO NOT CONSIDER A
LEGITIMATE ONE IN THIS COURT.  IT IS POSSIBLE THAT IN THE HASTE OF
EXAMINING CASES BEFORE US, WE SOMETIMES OVERLOOK SOMETHING, AND THEN WE
ARE WILLING TO HAVE THAT POINTED OUT, BUT TO CONSIDER THAT THIS COURT
WILL REEXAMINE THE MATTER AND CHANGE ITS JUDGMENT ON A CASE, IT SEEMS
TO ME, IS NOT TAKING A PROPER VIEW OF THE FUNCTIONS OF THIS COURT  ...
."  (FN3) 

THIS WAS AN EARLY RECOGNITION OF THE APPROPRIATENESS OF A MOTION FOR
REHEARING TO RAISE POINTS THAT HAVE BEEN OVERLOOKED.  THUS, ASSUMING
THAT THE POINT RAISED HERE WAS OVERLOOKED ORIGINALLY, IT WAS CORRECTLY
RAISED IN THE FIRST PETITION FOR REHEARING AND THAT SHOULD END THE
MATTER IF THIS COURT'S RULE 58(4) IS TO BE FOLLOWED. 

MR. JUSTICE BRADLEY DEALT WITH THE PROBLEM OF SUCCESSIVE PETITIONS
FOR REHEARING IN WILLIAMS V. CONGER, 131 U.S. 390.  THERE THE LITIGANT
CLAIMED THAT A CLERICAL ERROR HAD BEEN MADE IN AN OPINION.   A
REHEARING WAS ASKED ON THAT GROUND BUT WAS DENIED.  THE COURT CONCLUDED
THAT "NO MODIFICATION OF THE JUDGMENT WAS REQUIRED, AND NO REHEARING
WAS NECESSARY OR CALLED FOR  ...  ."  131 U.S., AT 391.  LATER THE SAME
REQUEST WAS AGAIN MADE.  MR. JUSTICE BRADLEY, SPEAKING FOR THE COURT,
EXPRESSED ITS STRONG LACK OF PATIENCE AT THE "PERSISTENT RENEWAL OF THE
APPLICATION  ...  ESPECIALLY UPON THE SAME REASONS ONCE OVERRULED  ...
."  IBID.  ONE WOULD JUDGE FROM THE TONE OF THE OPINION IN THAT CASE
THAT THE COURT WOULD NOT HAVE REACHED A DIFFERENT RESULT HAD THE SECOND
MOTION FOR REHEARING BEEN LABELED A "MOTION TO RECALL THE JUDGMENT." 

OUR ACTION IN BOUDOIN V. LYKES BROS. S.S. CO., 350 U.S. 811, DOES NOT
JUSTIFY THE COURT IN GRANTING THIS MOTION TO REHEAR A PETITION FOR
REHEARING FORMERLY DENIED.  IN THAT CASE BOUDOIN APPEALED FROM A
JUDGMENT OF THE DISTRICT COURT IN HIS FAVOR, CLAIMING: (A) THE AMOUNT
OF DAMAGES AWARDED HIM WAS INADEQUATE; AND (B) THE TERM OF MAINTENANCE
DETERMINED BY THE TRIAL COURT WAS INSUFFICIENT AND SHOULD BE EXTENDED
AND INCREASED.  THE COURT OF APPEALS UNDERCUT BOTH OF THESE ALLEGED
ERRORS BY HOLDING THAT BOUDOIN WAS ENTITLED TO RECOVER NOTHING AT ALL. 
WE REVERSED.  348 U.S. 336.  BOUDOIN FILED NO PETITION FOR REHEARING. 
HE DID ASK US TO AMEND OUR JUDGMENT SO THAT THE COURT OF APPEALS COULD
ADJUDICATE THE QUESTION OF THE AMOUNT OF DAMAGES AND WE GRANTED THAT
MOTION.  BUT OUR ACTION THERE IS NOT COMPARABLE TO THE ACTION REQUESTED
HERE.  HAD WE DENIED BOUDOIN'S MOTION AND HAD HE FILED A LATER MOTION
OF THE SAME KIND I SUPPOSE WE WOULD NOT HAVE CONSIDERED IT A SECOND
TIME.  BUT HERE THE COURT IS ASKED TO REVIEW ITS JUDGMENT OF REVERSAL A
SECOND TIME.  THE SUBSTANCE OF THE PLEADINGS AND NOT THEIR LABELS
SHOULD GOVERN OUR ACTION.  WE SHOULD NOT GRANT WHAT IS IN EFFECT A
SECOND PETITION FOR REHEARING UNLESS THE COURT IS WILLING TO ADMIT THAT
IT IS REFUSING TO GIVE THE RULE AGAINST SUCCESSIVE PETITIONS FOR
REHEARING ITS LITERAL MEANING.  THERE ARE STRONG ARGUMENTS FOR ALLOWING
A SECOND PETITION FOR REHEARING WHERE A RIGID APPLICATION OF THIS RULE
WOULD CAUSE MANIFEST INJUSTICE.  CF. HORMEL V. HELVERING, 312 U.S. 552,
556-559.  BUT THIS IS NO SUCH CASE. 

WE HAVE NEVER HELD THAT IN EVERY INSTANCE WHERE THE COURT OF APPEALS
HAS FAILED TO DECIDE A POINT, WE MUST REMAND THE CAUSE TO THAT COURT. 
SUCH A RIGID RULE WOULD BE MOST UNDESIRABLE AND WOULD BRING ABOUT
INTERMINABLE DELAYS WITH MOST UNJUST RESULTS.  IN DELK V. ST. LOUIS &
S.F.R. CO., 220 U.S. 580, A SUIT FOR INJURIES UNDER THE SAFETY
APPLIANCE ACT, THIS COURT, AFTER REVERSING THE COURT OF APPEALS ON ONE
QUESTION, WENT ON TO DECIDE A SECOND QUESTION WHICH THE COURT OF
APPEALS HAD EXPRESSLY LEFT UNDECIDED.  MR. JUSTICE HARLAN, SPEAKING FOR
THE COURT, SAID:  "AS THE CASE IS HERE UPON CERTIORARI TO REVIEW THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS, THIS COURT HAS THE ENTIRE
RECORD BEFORE IT WITH THE POWER TO REVIEW THE ACTION OF THAT COURT AS
WELL AS DIRECT SUCH DISPOSITION OF THE CASE AS THAT COURT MIGHT HAVE
DONE  ...  ."  220 U.S., AT 588.  (FN4) MORE RECENTLY IN O'LEARY V.
BROWN-PACIFIC-MAXON, INC., 340 U.S. 504, THIS COURT AGAIN DECIDED A
QUESTION LEFT UNDECIDED BY THE COURT OF APPEALS.  MR. JUSTICE
FRANKFURTER, SPEAKING FOR THE COURT, SAID:  "IN THIS INSTANCE, HOWEVER,
WE HAVE A SLIM RECORD AND THE RELEVANT STANDARD IS NOT DIFFICULT TO
APPLY; AND WE THINK THE LITIGATION HAD BETTER TERMINATE NOW. 
ACCORDINGLY WE HAVE OURSELVES EXAMINED THE RECORD TO ASSESS THE
SUFFICIENCY OF THE EVIDENCE."  340 U.S., AT 508.  AT LEAST WHERE THERE
ARE UNSUBSTANTIAL POINTS LEFT UNDECIDED BELOW THIS COURT SHOULD NOT
REMAND THE CASE FOR CONSIDERATION OF THOSE POINTS. 

CERTAINLY THERE IS NO ERROR ASSERTED HERE THAT JUSTIFIES SENDING THIS
CASE BACK TO THE COURT OF APPEALS.  THE ERROR CLAIMED RELATES TO THE
ADMISSIBILITY OF EVIDENCE CONCERNING PRIOR ACCIDENTS.  CAHILL'S CASE
AGAINST THE RAILROAD WAS BASED IN LARGE PART ON THE FAILURE TO GIVE HIM
PROPER INSTRUCTIONS BEFORE SENDING HIM TO WORK IN A DANGEROUS PLACE
WHEN HE HAD NEVER DONE SUCH WORK BEFORE.  THIS MADE THE RAILROAD'S
KNOWLEDGE OF THE DANGER OF HIGHWAY TRAFFIC AT THAT LOCATION HIGHLY
RELEVANT IN PROVING THE RAILROAD NEGLIGENT.  WHAT BETTER PROOF COULD
THERE BE THAN THE FACT THAT THE RAILROAD KNEW THERE HAD BEEN REPEATED
ACCIDENTS AT THE SAME LOCATION OF THE KIND THAT BROUGHT ABOUT CAHILL'S
INJURY?  NO FAIR SYSTEM OF EVIDENCE WOULD EXCLUDE SUCH TESTIMONY WHEN
ISSUES ARE RAISED LIKE THOSE INVOLVED HERE.  AS MR. JUSTICE FIELD,
SPEAKING FOR THE COURT, SAID IN DISTRICT OF COLUMBIA V. ARMES, 107 U.S.
519, 525:  "THE FREQUENCY OF ACCIDENTS AT A PARTICULAR PLACE WOULD SEEM
TO BE GOOD EVIDENCE OF ITS DANGEROUS CHARACTER, - AT LEAST, IT IS SOME
EVIDENCE TO THAT EFFECT."  (FN5) 

WE ARE TOLD IN THIS CASE THAT THE RAILROAD HAS ALREADY PAID THE
JUDGMENT.  FOR ALL WE KNOW THAT JUDGMENT WAS PAID DIRECTLY TO CAHILL. 
IT IS THE GENERAL RULE THAT VOLUNTARY PAYMENT OF A JUDGMENT AMOUNTS TO
ACCORD AND SATISFACTION.  THORP V. BONNIFIELD, 177 U.S. 15, 18-19. 
PAYMENT UNDER DURESS IS OF COURSE A DIFFERENT MATTER.  WE DO NOT KNOW
WHETHER THIS JUDGMENT WAS PAID UNDER DURESS.  IT IS TRUE THERE IS A
STATEMENT IN RESPONDENT'S BRIEF THAT IT INFORMED PETITIONER OF ITS
INTENTION TO PURSUE WHATEVER REMEDIES IT HAD NOTWITHSTANDING PAYMENT OF
THE JUDGMENT.  AND THE BRIEF ALSO STATES THAT THE DISTRICT COURT
DECLINED TO AGREE TO A STAY OF EXECUTION.  THIS STATEMENT IS CERTAINLY
NOT SUFFICIENT TO SHOW THE KIND OF DURESS THAT OUGHT TO JUSTIFY SETTING
ASIDE THE PAYMENT OF A JUDGMENT.   (FN6)  EVEN IF THE FACTS ALLEGED
WERE SUFFICIENT, THE QUESTION SHOULD BE TRIED AS ONE OF FACT BEFORE
THIS COURT TAKES THE DRASTIC ACTION OF TRYING TO MAKE A PLAINTIFF PAY
BACK MONEY THAT HE HAS RECEIVED UNDER AN ORDER OF THIS COURT.  DAKOTA
COUNTY V. GLIDDEN, 113 U.S. 222.  (FN7)  IF SUCH SUMMARY ACTION AS HERE
REQUESTED CAN BE TAKEN WITH REFERENCE TO A JUDGMENT PAID ONLY A FEW
DAYS AGO, WHY COULD IT NOT BE TAKEN WITH REFERENCE TO A JUDGMENT PAID A
YEAR AGO?  (FN8)  YET THE COURT, WITHOUT INVESTIGATING THESE PROBLEMS,
SUMMARILY GRANTS THE MOTION TO RECALL AND REMANDS THE CASE TO THE COURT
OF APPEALS.    I THINK THE COURT SHOULD DENY THIS MOTION 

FN1  35 STAT. 65, AS AMENDED, 45 U.S.C. SEC. 51 ET SEQ. 

FN2  SEE CARTER V. ATLANTA & ST. A.B.R. CO., 338 U.S. 430, 438-439;
SCHULZ V. PENNSYLVANIA R. CO., 350 U.S. 523, 527; AND CASES THERE
CITED. 

FN3  CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES
(1928), 71-72.  SEE ALSO FRANKFURTER AND LANDIS, THE BUSINESS OF THE
SUPREME COURT AT OCTOBER TERM, 1931, 46 HARV. L. REV. 226, 237:  "OF
COURSE, TO DENY A REHEARING MAY CONCEIVABLY BE ONLY AN OBSTINATE
ADHERENCE TO ERROR.  BUT SURELY, BARRING VERY EXCEPTIONAL
CIRCUMSTANCES, A REHEARING IMPLIES A SERIOUS LACK IN THE ADJUDICATING
PROCESS, A FAILURE IN MASTERING EITHER THE RECORD OR THE PERTINENT
LEGAL CONSIDERATIONS THAT GOVERN THE ISSUES  ...  ." 

FN4  SEE ALSO HARRIMAN V. NORTHERN SECURITIES CO., 197 U.S. 244, 287;
LUTCHER & MOORE LUMBER CO. V. KNIGHT, 217 U.S. 257, 267-268; LAMAR V.
UNITED STATES, 241 U.S. 103, 110-111; CAMP V. GRESS, 250 U.S. 308, 318;
LANGNES V. GREEN, 282 U.S. 531, 536-539; STORY PARCHMENT CO. V.
PATERSON PARCHMENT PAPER CO., 282 U.S. 555, 567-568. 

FN5  SEE ALSO THE INTERESTING DISCUSSION AND CASES CITED IN 2
WIGMORE, EVIDENCE (3D ED. 1940), SECS. 252, 458.  AND SEE NOTES:  65
A.L.R. 380, 81 A.L.R. 685, 128 A.L.R.  595, AND CASES THERE CITED. 

FN6  "WHERE A PARTY PAYS AN ILLEGAL DEMAND WITH A FULL KNOWLEDGE OF
ALL THE FACTS WHICH RENDER SUCH DEMAND ILLEGAL, WITHOUT AN IMMEDIATE
AND URGENT NECESSITY THEREFOR, OR UNLESS TO RELEASE HIS PERSON OR
PROPERTY FROM DETENTION, OR TO PREVENT AN IMMEDIATE SEIZURE OF HIS
PERSON OR PROPERTY, SUCH PAYMENT MUST BE DEEMED VOLUNTARY AND CANNOT BE
RECOVERED BACK.  AND THE FACT THAT THE PARTY AT THE TIME OF MAKING THE
PAYMENT FILES A WRITTEN PROTEST DOES NOT MAKE THE PAYMENT
INVOLUNTARY."  RAILROAD CO. V. COMMISSIONERS, 98 U.S. 541, 543-544. 
SEE ALSO LITTLE V. BOWERS, 134 U.S. 547, 554-558. 

FN7  "BUT THIS COURT IS COMPELLED, AS ALL COURTS ARE, TO RECEIVE
EVIDENCE DEHORS THE RECORD AFFECTING THEIR PROCEEDING IN A CASE BEFORE
THEM ON ERROR OR APPEAL."  113 U.S., AT 225.  SEE ALSO WOOD-PAPER CO.
V. HEFT, 8 WALL.  333. 

FN8  THE EXPIRATION OF A TERM OF THIS COURT IS APPARENTLY NO LONGER
RELEVANT.  SEE 28 U.S.C. SEC. 452. 
..END :














COVEY V. TOWN OF SOMERS 351 U.S. 141 


NO. 380.  ARGUED MARCH 29, 1956.  - DECIDED MAY 7, 1956.  - 308 N.Y.
798, 941, 125 N.E.2D 862, 127 N.E.2D 90, REVERSED AND REMANDED. 


UNDER ARTICLE VII-A, TITLE 3, OF THE NEW YORK TAX LAW, A TOWN
PROCEEDED TO FORECLOSE A LIEN FOR DELINQUENT TAXES ON THE REAL ESTATE
OF A LONG-TIME RESIDENT.  IN ACCORDANCE WITH THE STATUTE, THE TAXPAYER
WAS GIVEN NO NOTICE EXCEPT BY MAIL, POSTING NOTICE AT THE POST OFFICE
AND PUBLICATION IN TWO LOCAL NEWSPAPERS.  SHE FILED NO ANSWER; JUDGMENT
OF FORECLOSURE WAS ENTERED; AND A DEED TO HER PROPERTY WAS DELIVERED TO
THE TOWN.  A FEW DAYS LATER, SHE WAS ADJUDGED INSANE AND COMMITTED TO A
HOSPITAL FOR THE INSANE.  SUBSEQUENTLY, APPELLANT WAS APPOINTED
COMMITTEE OF HER PERSON AND PROPERTY, AND HE FILED A MOTION IN THE
TRIAL COURT WHERE THE JUDGMENT OF FORECLOSURE HAD BEEN ENTERED TO HAVE
THE DEFAULT OPENED, THE JUDGMENT VACATED AND THE DEED SET ASIDE.  HE
ALLEGED THAT, PRIOR TO ENTRY OF THE JUDGMENT OF FORECLOSURE, THE
TAXPAYER WAS WELL KNOWN BY TOWN OFFICIALS TO BE FINANCIALLY ABLE TO
MEET HER OBLIGATIONS BUT MENTALLY INCOMPETENT TO HANDLE HER AFFAIRS OR
TO UNDERSTAND THE MEANING OF ANY NOTICE SERVED UPON HER AND THAT NO
ATTEMPT HAD BEEN MADE TO HAVE A COMMITTEE APPOINTED FOR HER PERSON OR
PROPERTY.  HELD:  ASSUMING THE TRUTH OF THESE ALLEGATIONS, THE NOTICE
PROVIDED UNDER THE STATUTE WAS INADEQUATE AS APPLIED TO THIS
INCOMPETENT TAXPAYER, AND THE TAKING OF HER PROPERTY WOULD VIOLATE THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 142-147. 

(A)  IT APPEARS THAT, IN AN ACTION TO SET ASIDE THE DEED (WHICH IS
CONTEMPLATED BY THE STATUTE), ONLY SUCH IRREGULARITIES AS FAILURE TO
OBSERVE THE STATUTORY PROCEDURE MAY BE ATTACKED.  THE STATE COURT HAS
RECOGNIZED THE EXISTENCE OF EQUITABLE POWER TO ENTERTAIN A MOTION TO
OPEN A DEFAULT IN AN IN REM TAX PROCEEDING, AND THE STATE COURT OF
APPEALS AMENDED ITS REMITTITUR IN THIS CASE TO DISCLOSE THAT A
CONSTITUTIONAL QUESTION WAS PRESENTED AND NECESSARILY DECIDED ON THE
APPEAL TO THAT COURT.  THEREFORE, THE CONSTITUTIONAL QUESTION IS
PROPERLY BEFORE THIS COURT.  PP. 143-144. 

(B)  NOTICE TO A PERSON KNOWN TO BE AN INCOMPETENT AND WITHOUT THE
PROTECTION OF A GUARDIAN DOES NOT MEASURE UP TO THE REQUIREMENTS OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 146-147. 

COVEY, COMMITTEE, V. TOWN OF SOMERS. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE APPLICATION OF ARTICLE VII-A, TITLE 3, OF THE NEW YORK TAX LAW TO
THE MENTALLY INCOMPETENT WARD OF APPELLANT IS CHALLENGED AS BEING
REPUGNANT TO THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT. 

THE STATUTE, IN SEC. 165 ET SEQ., PROVIDES FOR THE JUDICIAL
FORECLOSURE OF TAX LIENS ON REAL PROPERTY.  THE FILING AT THE COUNTY
CLERK'S OFFICE OF A LIST OF TAXES DELINQUENT MORE THAN FOUR YEARS
CONSTITUTES THE FILING OF A NOTICE OF LIS PENDENS AND OF A COMPLAINT,
AND COMMENCES AN ACTION AGAINST THE PROPERTY.  PROVISION IS MADE FOR
NOTICE BY PUBLICATION, BY POSTING, AND BY MAILING.  THE PRESCRIBED
NOTICE IS TO THE EFFECT THAT, UNLESS THE AMOUNT OF UNPAID TAX LIENS,
TOGETHER WITH INTEREST AND PENALTIES WHICH ARE A LIEN AGAINST THE
PROPERTY, ARE PAID WITHIN 7 WEEKS, OR AN ANSWER INTERPOSED WITHIN 20
DAYS THEREAFTER, ANY PERSON HAVING THE RIGHT TO REDEEM OR ANSWER SHALL
BE FOREVER FORECLOSED OF ALL HIS RIGHT, TITLE, AND INTEREST AND EQUITY
OF REDEMPTION IN AND TO THE DELINQUENT PROPERTY.  PROVISION IS MADE FOR
ENTRY OF A JUDGMENT OF FORECLOSURE AWARDING POSSESSION OF THE PROPERTY
TO THE TAX DISTRICT AND DIRECTING EXECUTION OF A DEED CONVEYING AN
ESTATE IN FEE SIMPLE ABSOLUTE TO THE DISTRICT.  THE PROVISIONS OF TITLE
3 PURPORT TO BE APPLICABLE TO AND VALID AND EFFECTIVE WITH RESPECT TO
ALL DEFENDANTS, EVEN THOUGH ONE OR MORE OF THEM BE INFANTS,
INCOMPETENTS, ABSENTEES, OR NONRESIDENTS OF THE STATE OF NEW YORK. 

REGULARITY OF THE PROCEEDINGS.  AFTER TWO YEARS THIS PRESUMPTION
BECOMES CONCLUSIVE.  THE SECTION FURTHER PROVIDES THAT NO ACTION TO SET
ASIDE THE DEED MAY BE MAINTAINED UNLESS COMMENCED AND A LIS PENDENS
NOTICE FILED PRIOR TO THE TIME THE PRESUMPTION BECOMES CONCLUSIVE. 

WE ARE MET AT THE OUTSET WITH THE CONTENTION OF APPELLEE AND THE
STATE OF NEW YORK, AMICUS CURIE, THAT AN ACTION, AS DISTINGUISHED FROM
THE MOTION IN THE ORIGINAL PROCEEDING HERE UTILIZED, WAS THE EXCLUSIVE
REMEDY IN THIS CASE.  THE STATUTE ITSELF CONTAINS NO SUGGESTION THAT A
NEW ACTION IS THE EXCLUSIVE REMEDY; IT MERELY LIMITS THE TIME WITHIN
WHICH AN ACTION MAY BE BROUGHT TO SET ASIDE THE DEED.  THE SECOND
DEPARTMENT OF THE APPELLATE DIVISION, WHICH DECIDED THIS CASE, HAS
RECOGNIZED THE EXISTENCE OF EQUITABLE POWER TO ENTERTAIN A MOTION TO
OPEN A DEFAULT IN AN IN REM TAX PROCEEDING.  (FN1)  IF THAT WERE NOT
ENOUGH, APPELLEE, ON ORAL ARGUMENT, CONCEDED THAT IN AN ACTION OF THE
SORT CONTEMPLATED BY SEC. 165-H(7), THE APPELLANT WOULD HAVE BEEN ABLE
TO ATTACK THE DEED ONLY ON THE GROUND OF ALLEGED IRREGULARITIES IN THE
ASSESSMENT AND FORECLOSURE PROCEEDINGS.  ALTHOUGH THE ATTORNEY GENERAL
OF NEW YORK HAS SUPPORTED A CONTRARY POSITION, IT WAS ADMITTED AT THE
ARGUMENT THAT THERE WAS NO DECISION TO SUPPORT HIS VIEW.  OUR
CONCLUSION THAT THE CONSTITUTIONAL QUESTION WAS PROPERLY RAISED BY
APPELLANT'S MOTION IS REINFORCED BY THE ACTION OF THE COURT OF APPEALS
WHICH AMENDED ITS REMITTITUR TO DISCLOSE THAT A CONSTITUTIONAL QUESTION
WAS PRESENTED AND NECESSARILY DECIDED ON THE APPEAL TO THAT COURT.  308
N.Y. 941, 127 N.E.2D 90.  MANIFESTLY, NO CONSTITUTIONAL QUESTION COULD
HAVE BEEN REACHED IF THE COURT OF APPEALS HAD BEEN OF THE OPINION THAT
THE APPELLANT HAD PURSUED THE WRONG REMEDY. 

THIS PROCEEDING STARTED ON MAY 8, 1952.  THE TOWN OF SOMERS
INSTITUTED IT TO FORECLOSE MANY TAX LIENS, ONE OF WHICH WAS ITS LIEN
AGAINST THE PARCEL OF REAL PROPERTY OWNED BY THE INCOMPETENT.  IN
COMPLIANCE WITH THE STATUTE, NOTICE WAS GIVEN TO THE INCOMPETENT
TAXPAYER BY MAIL, BY POSTING A NOTICE AT THE POST OFFICE, AND BY
PUBLICATION IN TWO LOCAL NEWSPAPERS.  NO ANSWER HAVING BEEN FILED BY
THE INCOMPETENT, JUDGMENT OF FORECLOSURE WAS ENTERED ON SEPTEMBER 8,
1952, AND ON OCTOBER 24, 1952, A DEED TO HER PROPERTY WAS DELIVERED TO
THE TOWN.  FIVE DAYS LATER, ON OCTOBER 29, 1952, NORA BRAINARD WAS
CERTIFIED BY THE COUNTY COURT AS A PERSON OF UNSOUND MIND, AND ONE WEEK
LATER, NOVEMBER 6, 1952, SHE WAS COMMITTED TO THE HARLEM VALLEY STATE
HOSPITAL FOR THE INSANE.  THEREAFTER, ON FEBRUARY 13, 1953, APPELLANT
FILED BOND PURSUANT TO AN ORDER APPOINTING HIM COMMITTEE OF THE PERSON
AND PROPERTY OF THE INCOMPETENT. 

SOMETIME PRIOR TO SEPTEMBER 22, 1953, THE TOWN OFFERED THE
INCOMPETENT'S PROPERTY FOR SALE AT A MINIMUM BID PRICE OF $6,500.  THE
UNPAID TAXES, INTEREST, PENALTIES, COSTS OF FORECLOSURE, ATTORNEY'S
FEES, AND MAINTENANCE CHARGES ON THE PROPERTY TO SEPTEMBER 22, 1953,
AGGREGATED $480.  ON THAT DATE, APPELLANT'S ATTORNEY APPEARED BEFORE
THE TOWN BOARD AND OFFERED TO REPAY THE TOWN THE AMOUNT DUE ON THE
PROPERTY IN CONSIDERATION OF ITS RETURN TO THE INCOMPETENT'S ESTATE. 
THE OFFER WAS REFUSED.  (FN2) 

APPELLANT THEN FILED A MOTION IN THE COUNTY COURT OF WESTCHESTER
COUNTY, WHERE THE JUDGMENT OF FORECLOSURE HAD BEEN ENTERED, FOR AN
ORDER TO SHOW CAUSE WHY THE DEFAULT SHOULD NOT BE OPENED, THE JUDGMENT
VACATED AND THE DEED SET ASIDE, AND PERMISSION GRANTED "TO ANSWER OR
APPEAR OR OTHERWISE MOVE WITH RESPECT TO" THE NOTICE OF FORECLOSURE. 
HE ALLEGED IN A SUPPORTING AFFIDAVIT THAT, ALTHOUGH NORA BRAINARD'S
INCOMPETENCY WAS KNOWN TO THE TOWN OFFICIALS, NO GUARDIAN WAS APPOINTED
UNTIL SHORTLY AFTER THE FORECLOSURE.  APPELLANT CONTENDED THAT THE
NOTICE GIVEN TO NORA BRAINARD, ALTHOUGH IN COMPLIANCE WITH THE STATUTE,
WAS INADEQUATE IN THE CASE OF A KNOWN INCOMPETENT, AND, THEREFORE, THAT
THE STATUTE AS APPLIED WAS REPUGNANT TO THE FOURTEENTH AMENDMENT. 

THE TRIAL COURT, FINDING THAT THE INCOMPETENT HAD NOT BEEN DEPRIVED
OF HER CONSTITUTIONAL RIGHTS AND THAT THE STATUTE IS VALID, DENIED THE
MOTION.  THE APPELLATE DIVISION OF THE SUPREME COURT, ONE JUDGE
DISSENTING, AFFIRMED ON THE GROUND THAT THE RIGHTS OF THE PARTIES ARE
FIXED AFTER EXPIRATION OF THE 7 WEEKS AND 20 DAYS PROVIDED FOR
REDEMPTION OR ANSWER IN SEC. 165-A OF THE TAX LAW.  283 APP. DIV. 883,
129 N.Y.S.2D 537.  THE COURT OF APPEALS, WHICH, AS NOTED BEFORE,
CERTIFIED THAT A QUESTION UNDER THE FOURTEENTH AMENDMENT WAS RAISED AND
NECESSARILY DECIDED, LIKEWISE AFFIRMED.  308 N.Y. 798, 125 N.E.2D 862. 
WE NOTED PROBABLE JURISDICTION.  350 U.S. 882. 

AT THIS STAGE OF THE PROCEEDINGS WE ARE BOUND, AS WERE THE COURTS
BELOW, TO ASSUME THAT THE FACTS ARE AS DISCLOSED BY THE UNCONTROVERTED
AFFIDAVITS FILED WITH APPELLANT'S MOTION FOR AN ORDER TO SHOW CAUSE. 
FROM THESE IT APPEARS THAT NORA BRAINARD WAS A LONG-TIME RESIDENT OF
THE TOWN OF SOMERS IN THE STATE OF NEW YORK, AND A PERSON OF MEANS AT
ALL TIMES FINANCIALLY ABLE TO MEET HER OBLIGATIONS, OWNING FOUR PIECES
OF IMPROVED REAL PROPERTY IN ADDITION TO THE HOME PROPERTY WHICH HAS
BEEN TAKEN BY FORECLOSURE.  SHE LIVED ALONE, HOWEVER, AND HAD NO
RELATIVE IN THE STATE OF NEW YORK OR ANY OTHER PERSON PRESENT OR
AVAILABLE TO ASSIST HER OR TO ACT IN HER BEHALF IN CONNECTION WITH HER
TAXES, DESPITE THE FACT THAT SHE WAS AND FOR UPWARDS OF 15 YEARS HAD
BEEN AN INCOMPETENT.  ALTHOUGH SHE WAS KNOWN BY THE OFFICIALS AND
CITIZENS OF THE TOWN OF SOMERS TO BE A PERSON WITHOUT MENTAL CAPACITY
TO HANDLE HER AFFAIRS OR TO UNDERSTAND THE MEANING OF ANY NOTICE SERVED
UPON HER, NO ATTEMPT WAS MADE TO HAVE A COMMITTEE APPOINTED FOR HER
PERSON OR PROPERTY UNTIL AFTER ENTRY OF THE JUDGMENT OF FORECLOSURE IN
THIS PROCEEDING. 

APPELLEE ARGUES THAT THE FOURTEENTH AMENDMENT DOES NOT REQUIRE THE
STATE TO TAKE MEASURES IN GIVING NOTICE TO AN INCOMPETENT BEYOND THOSE
DEEMED SUFFICIENT IN THE CASE OF THE ORDINARY TAXPAYER. 

"AN ELEMENTARY AND FUNDAMENTAL REQUIREMENT OF DUE PROCESS IN ANY
PROCEEDING WHICH IS TO BE ACCORDED FINALITY IS NOTICE REASONABLY
CALCULATED, UNDER ALL THE CIRCUMSTANCES, TO APPRISE INTERESTED PARTIES
OF THE PENDENCY OF THE ACTION AND AFFORD THEM AN OPPORTUNITY TO PRESENT
THEIR OBJECTIONS  ...  .  WHEN NOTICE IS A PERSON'S DUE, PROCESS WHICH
IS A MERE GESTURE IS NOT DUE PROCESS.  THE MEANS EMPLOYED MUST BE SUCH
AS ONE DESIROUS OF ACTUALLY INFORMING THE ABSENTEE MIGHT REASONABLY
ADOPT TO ACCOMPLISH IT."  MULLANE V. CENTRAL HANOVER BANK & TRUST CO.,
339 U.S. 306, 314-315. 

NOTICE TO A PERSON KNOWN TO BE AN INCOMPETENT WHO IS WITHOUT THE
PROTECTION OF A GUARDIAN DOES NOT MEASURE UP TO THIS REQUIREMENT. 
ASSUMING THE TRUTH OF THE UNCONTRADICTED ASSERTIONS, THAT THE TAXPAYER
NORA BRAINARD WAS WHOLLY UNABLE TO UNDERSTAND THE NATURE OF THE
PROCEEDINGS AGAINST HER PROPERTY (FROM WHICH IT MUST BE INFERRED THAT
SHE WAS UNABLE TO AVAIL HERSELF OF THE STATUTORY PROCEDURE FOR
REDEMPTION OR ANSWER), AND THAT THE TOWN AUTHORITIES KNEW HER TO BE AN
UNPROTECTED INCOMPETENT, WE MUST HOLD THAT COMPLIANCE WITH THE STATUTE
WOULD NOT AFFORD NOTICE TO THE INCOMPETENT AND THAT A TAKING UNDER SUCH
CIRCUMSTANCES WOULD BE WITHOUT DUE PROCESS OF LAW.  THE QUESTION WAS
APPROPRIATELY RAISED AND THE ISSUE IMPROPERLY DECIDED AGAINST THE
APPELLANT.  THE JUDGMENT MUST, THEREFORE, BE REVERSED AND THE CAUSE
REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED
AND REMANDED. 

FN1  NELSON V. CITY OF NEW YORK, 283 APP. DIV. 722, 127 N.Y.S.2D
854.  A SUBSEQUENT MOTION TO OPEN THE DEFAULT WAS DENIED, 284 APP. DIV.
894, 134 N.Y.S.2D 597.  THAT ACTION WAS AFFIRMED BY THE COURT OF
APPEALS, 309 N.Y. 94, 127 N.E.2D 827, AND THE CASE IS PENDING ON APPEAL
TO THIS COURT, NO. 636, O.T. 1955. 

FN2  THEREAFTER THE TOWN RESCHEDULED THE SALE OF THE PROPERTY AT A
MINIMUM BID PRICE OF $3,500. 

MR. JUSTICE FRANKFURTER. 

IF THE COURT OF APPEALS SAW THE CASE AS THIS COURT SEES IT, REVERSAL
OF ITS JUDGMENT, FOR THE REASONS GIVEN IN THE COURT'S OPINION, WOULD BE
REQUIRED.  MY DIFFICULTY ARISES FROM THE FACT THAT THIS IS SO CLEAR
THAT I AM COMPELLED TO WONDER WHETHER THE NEW YORK COURT OF APPEALS
WHOSE JUDGES AGAIN AND AGAIN HAVE EVINCED DUE REGARD FOR DUE PROCESS
WOULD, BY A SUMMARY DISPOSITION, SANCTION SUCH A DENIAL OF DUE
PROCESS.  THIS COURT HAS HAD FREQUENT OCCASION TO ADVERT TO THE
DARKNESS WHICH CONFRONTS US IN TRYING TO DETERMINE THE MEANING OF STATE
LEGISLATION AND THE SCOPE OF STATE REMEDIES.  THIS IS PARTICULARLY TRUE
WHEN WE ARE VOUCHSAFED NO LIGHT EITHER FROM THE APPELLATE DIVISION OR
THE COURT OF APPEALS REGARDING THE AVAILABILITY OF SUBDIVISION 7 OF
SEC. 165-H OF THE NEW YORK TAX LAW IN A SITUATION, LIKE THE PRESENT, SO
OBVIOUSLY CALLING FOR RELIEF AS A MATTER OF DUE PROCESS.  THE
UNCERTAINTIES OF STATE LAW ARE NOT REMOVED BY CONFLICTING VIEWS
EXPRESSED AT THE BAR OF THIS COURT BY NEW YORK COUNSEL. 

NOR IS MY DIFFICULTY DISSIPATED BY THE AMENDED REMITTITUR OF THE NEW
YORK COURT OF APPEALS.  IT READS AS FOLLOWS: 

"UPON THE APPEAL HEREIN THERE WAS PRESENTED AND NECESSARILY PASSED
UPON A QUESTION UNDER THE CONSTITUTION OF THE UNITED STATES, VIZ.,
WHETHER THE TAKING BY THE TOWN OF SOMERS, OF THE PROPERTY HERE
INVOLVED, WAS, ON THIS RECORD, A DEPRIVATION OF DUE PROCESS AND EQUAL
PROTECTION OF THE LAWS UNDER THE FOURTEENTH AMENDMENT.  THE COURT OF
APPEALS HELD THAT THERE WAS NO DENIAL OF ANY CONSTITUTIONAL RIGHT OF
THE PETITIONER."  308 N.Y.  798, 125 N.E.2D 862, AS AMENDED IN 308 N.Y.
941, 127 N.E.2D 90. 

TO BE SURE, THE COURT OF APPEALS THUS HELD "THAT THERE WAS NO DENIAL
OF ANY CONSTITUTIONAL RIGHT OF THE PETITIONER."  BUT, AS THAT COURT
SAID, IT WAS ONLY ANSWERING THE QUESTION THAT WAS BEFORE IT, NAMELY,
WHETHER "ON THIS RECORD" THERE WAS "A DEPRIVATION OF DUE PROCESS."  THE
COURT MAY HAVE REACHED THE CONCLUSION IT DID BECAUSE, AS A MATTER OF
STATE LAW, THE ONLY THING IT DEEMED BEFORE IT WAS A RE-OPENING OF THE
JUDGMENT OF FORECLOSURE UNDER SEC. 165-A, AND THAT REMEDY WAS BARRED BY
THE STATUTE OF LIMITATIONS.  SINCE THE STATE HAS POWER TO PUT A TIME
LIMIT ON THE RE-OPENING OF THE JUDGMENT OF FORECLOSURE UNDER THAT
PROVISION, SUCH ACTION IS NOT A VIOLATION OF THE FOURTEENTH AMENDMENT. 
THE AMENDED REMITTITUR, THUS READ, DOES NOT PRECLUDE A SETTING ASIDE OF
THE FORECLOSURE DEED IN A SEPARATE PROCEEDING IN ACCORDANCE WITH SEC.
165-H(7), ON A RECITAL OF CIRCUMSTANCES SUCH AS THOSE WHICH LEAD THIS
COURT TO FIND A VIOLATION OF DUE PROCESS. 

IF THIS HYPOTHESIS WAS IN FACT THE BASIS OF THE JUDGMENT OF THE COURT
OF APPEALS, I ASSUME IT TO BE WITHIN THE POWER OF THAT COURT, WHEN THE
CASE IS RETURNED, TO ALLOW FULL SCOPE TO STATE REMEDIES STILL OPEN TO
THE PETITIONER. 
..END :




















NATIONAL LABOR RELATIONS BOARD V. TRUITT MANUFACTURING CO. 351 U.S. 149 



NO. 486.  ARGUED MARCH 29, 1956.  - DECIDED MAY 7, 1956.  - 224 F.2D
869, REVERSED. 


IN THE CIRCUMSTANCES OF THIS CASE, WHERE THE EMPLOYER CLAIMED THAT IT
COULD NOT AFFORD TO PAY HIGHER WAGES BUT REFUSED THE UNION'S REQUEST TO
PRODUCE FINANCIAL DATA TO SUBSTANTIATE THIS CLAIM, THE NATIONAL LABOR
RELATIONS BOARD WAS JUSTIFIED IN FINDING THAT THE EMPLOYER HAD NOT
BARGAINED IN GOOD FAITH AND, THEREFORE, HAD VIOLATED SEC. 8(A)(5) OF
THE NATIONAL LABOR RELATIONS ACT.  PP. 149-154. 

NATIONAL LABOR RELATIONS BOARD V. TRUITT MANUFACTURING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS ACT MAKES IT AN UNFAIR LABOR PRACTICE
FOR AN EMPLOYER TO REFUSE TO BARGAIN IN GOOD FAITH WITH THE
REPRESENTATIVE OF HIS EMPLOYEES.  (FN1)  THE QUESTION PRESENTED BY THIS
CASE IS WHETHER THE NATIONAL LABOR RELATIONS BOARD MAY FIND THAT AN
EMPLOYER HAS NOT BARGAINED IN GOOD FAITH WHERE THE EMPLOYER CLAIMS IT
CANNOT AFFORD TO PAY HIGHER WAGES BUT REFUSES REQUESTS TO PRODUCE
INFORMATION SUBSTANTIATING ITS CLAIM. 

THE DISPUTE HERE AROSE WHEN A UNION REPRESENTING CERTAIN OF
RESPONDENT'S EMPLOYEES ASKED FOR A WAGE INCREASE OF 10 CENTS PER HOUR. 
THE COMPANY ANSWERED THAT IT COULD NOT AFFORD TO PAY SUCH AN INCREASE,
IT WAS UNDERCAPITALIZED, HAD NEVER PAID DIVIDENDS, AND THAT AN INCREASE
OF MORE THAN 2 1/2 CENTS PER HOUR WOULD PUT IT OUT OF BUSINESS.  THE
UNION ASKED THE COMPANY TO PRODUCE SOME EVIDENCE SUBSTANTIATING THESE
STATEMENTS, REQUESTING PERMISSION TO HAVE A CERTIFIED PUBLIC ACCOUNTANT
EXAMINE THE COMPANY'S BOOKS, FINANCIAL DATA, ETC.  THIS REQUEST BEING
DENIED, THE UNION ASKED THAT THE COMPANY SUBMIT "FULL AND COMPLETE
INFORMATION WITH RESPECT TO ITS FINANCIAL STANDING AND PROFITS,"
INSISTING THAT SUCH INFORMATION WAS PERTINENT AND ESSENTIAL FOR THE
EMPLOYEES TO DETERMINE WHETHER OR NOT THEY SHOULD CONTINUE TO PRESS
THEIR DEMAND FOR A WAGE INCREASE.  A UNION OFFICIAL TESTIFIED BEFORE
THE TRIAL EXAMINER THAT "WE WERE WANTING ANYTHING RELATING TO THE
COMPANY'S POSITION, ANY RECORDS OR WHAT HAVE YOU, BOOKS, ACCOUNTING
SHEETS, COST EXPENDITURES, WHAT NOT, ANYTHING TO BACK THE COMPANY'S
POSITION THAT THEY WERE UNABLE TO GIVE ANY MORE MONEY."  THE COMPANY
REFUSED ALL THE REQUESTS, RELYING SOLELY ON THE STATEMENT THAT "THE
INFORMATION  ...  IS NOT PERTINENT TO THIS DISCUSSION AND THE COMPANY
DECLINES TO GIVE YOU SUCH INFORMATION; YOU HAVE NO LEGAL RIGHT TO
SUCH." 

ON THE BASIS OF THESE FACTS THE NATIONAL LABOR RELATIONS BOARD FOUND
THAT THE COMPANY HAD "FAILED TO BARGAIN IN GOOD FAITH WITH RESPECT TO
WAGES IN VIOLATION OF SECTION 8(A)(5) OF THE ACT."  110 N.L.R.B. 856. 
THE BOARD ORDERED THE COMPANY TO SUPPLY THE UNION WITH SUCH INFORMATION
AS WOULD "SUBSTANTIATE THE RESPONDENT'S POSITION OF ITS ECONOMIC
INABILITY TO PAY THE REQUESTED WAGE INCREASE."  THE COURT OF APPEALS
REFUSED TO ENFORCE THE BOARD'S ORDER, AGREEING WITH RESPONDENT THAT IT
COULD NOT BE HELD GUILTY OF AN UNFAIR LABOR PRACTICE BECAUSE OF ITS
REFUSAL TO FURNISH THE INFORMATION REQUESTED BY THE UNION.  224 F.2D
869.  IN LABOR BOARD V. JACOBS MFG. CO., 196 F.2D 680, THE SECOND
CIRCUIT UPHELD A BOARD FINDING OF BAD-FAITH BARGAINING BASED ON AN
EMPLOYER'S REFUSAL TO SUPPLY FINANCIAL INFORMATION UNDER CIRCUMSTANCES
SIMILAR TO THOSE HERE.  BECAUSE OF THE CONFLICT AND THE IMPORTANCE OF
THE QUESTION WE GRANTED CERTIORARI.  350 U.S. 922. 

THE COMPANY RAISED NO OBJECTION TO THE BOARD'S ORDER ON THE GROUND
THAT THE SCOPE OF INFORMATION REQUIRED WAS TOO BROAD OR THAT DISCLOSURE
WOULD PUT AN UNDUE BURDEN ON THE COMPANY.  ITS MAJOR ARGUMENT
THROUGHOUT HAS BEEN THAT THE INFORMATION REQUESTED WAS IRRELEVANT TO
THE BARGAINING PROCESS AND RELATED TO MATTERS EXCLUSIVELY WITHIN THE
PROVINCE OF MANAGEMENT.  THUS WE LAY TO ONE SIDE THE SUGGESTION BY THE
COMPANY HERE THAT THE BOARD'S ORDER MIGHT BE UNDULY BURDENSOME OR
INJURIOUS TO ITS BUSINESS.  IN ANY EVENT, THE BOARD HAS HERETOFORE
TAKEN THE POSITION IN CASES SUCH AS THIS THAT "IT IS SUFFICIENT IF THE
INFORMATION IS MADE AVAILABLE IN A MANNER NOT SO BURDENSOME OR TIME
CONSUMING AS TO IMPEDE THE PROCESS OF BARGAINING."  (FN2)  AND IN THIS
CASE THE BOARD HAS HELD SUBSTANTIATION OF THE COMPANY'S POSITION
REQUIRES NO MORE THAN "REASONABLE PROOF." 

WE THINK THAT IN DETERMINING WHETHER THE OBLIGATION OF GOOD-FAITH
BARGAINING HAS BEEN MET THE BOARD HAS A RIGHT TO CONSIDER AN EMPLOYER'S
REFUSAL TO GIVE INFORMATION ABOUT ITS FINANCIAL STATUS.  WHILE CONGRESS
DID NOT COMPEL AGREEMENT BETWEEN EMPLOYERS AND BARGAINING
REPRESENTATIVES, IT DID REQUIRE COLLECTIVE BARGAINING IN THE HOPE THAT
AGREEMENTS WOULD RESULT.  SECTION 204(A)(1) OF THE ACT ADMONISHES BOTH
EMPLOYERS AND EMPLOYEES TO "EXERT EVERY REASONABLE EFFORT TO MAKE AND
MAINTAIN AGREEMENTS CONCERNING RATES OF PAY, HOURS, AND WORKING
CONDITIONS  ...  ."  (FN3)  IN THEIR EFFORT TO REACH AN AGREEMENT HERE
BOTH THE UNION AND THE COMPANY TREATED THE COMPANY'S ABILITY TO PAY
INCREASED WAGES AS HIGHLY RELEVANT.  THE ABILITY OF AN EMPLOYER TO
INCREASE WAGES WITHOUT INJURY TO HIS BUSINESS IS A COMMONLY CONSIDERED
FACTOR IN WAGE NEGOTIATIONS.  (FN4)  CLAIMS FOR INCREASED WAGES HAVE
SOMETIMES BEEN ABANDONED BECAUSE OF AN EMPLOYER'S UNSATISFACTORY
BUSINESS CONDITION; EMPLOYEES HAVE EVEN VOTED TO ACCEPT WAGE DECREASES
BECAUSE OF SUCH CONDITIONS.  (FN5) 

GOOD-FAITH BARGAINING NECESSARILY REQUIRES THAT CLAIMS MADE BY EITHER
BARGAINER SHOULD BE HONEST CLAIMS.  THIS IS TRUE ABOUT AN ASSERTED
INABILITY TO PAY AN INCREASE IN WAGES.  IF SUCH AN ARGUMENT IS
IMPORTANT ENOUGH TO PRESENT IN THE GIVE AND TAKE OF BARGAINING, IT IS
IMPORTANT ENOUGH TO REQUIRE SOME SORT OF PROOF OF ITS ACCURACY.  AND IT
WOULD CERTAINLY NOT BE FARFETCHED FOR A TRIER OF FACT TO REACH THE
CONCLUSION THAT BARGAINING LACKS GOOD FAITH WHEN AN EMPLOYER
MECHANICALLY REPEATS A CLAIM OF INABILITY TO PAY WITHOUT MAKING THE
SLIGHTEST EFFORT TO SUBSTANTIATE THE CLAIM.  SUCH HAS BEEN THE HOLDING
OF THE LABOR BOARD SINCE SHORTLY AFTER THE PASSAGE OF THE WAGNER ACT. 
IN PIONEER PEARL BUTTON CO., DECIDED IN 1936, WHERE THE EMPLOYER'S
REPRESENTATIVE RELIED ON THE COMPANY'S ASSERTED "POOR FINANCIAL
CONDITION," THE BOARD SAID:  "HE DID NO MORE THAN TAKE REFUGE IN THE
ASSERTION THAT THE RESPONDENT'S FINANCIAL CONDITION WAS POOR; HE
REFUSED EITHER TO PROVE HIS STATEMENT, OR TO PERMIT INDEPENDENT
VERIFICATION.  THIS IS NOT COLLECTIVE BARGAINING."  1 N.L.R.B. 837, 842
843.  THIS WAS THE POSITION OF THE BOARD WHEN THE TAFT-HARTLEY ACT WAS
PASSED IN 1947 AND HAS BEEN ITS POSITION EVER SINCE.  (FN6)  WE AGREE
WITH THE BOARD THAT A REFUSAL TO ATTEMPT TO SUBSTANTIATE A CLAIM OF
INABILITY TO PAY INCREASED WAGES MAY SUPPORT A FINDING OF A FAILURE TO
BARGAIN IN GOOD FAITH. 

THE BOARD CONCLUDED THAT UNDER THE FACTS AND CIRCUMSTANCES OF THIS
CASE THE RESPONDENT WAS GUILTY OF AN UNFAIR LABOR PRACTICE IN FAILING
TO BARGAIN IN GOOD FAITH.  WE SEE NO REASON TO DISTURB THE FINDINGS OF
THE BOARD.  WE DO NOT HOLD, HOWEVER, THAT IN EVERY CASE IN WHICH
ECONOMIC INABILITY IS RAISED AS AN ARGUMENT AGAINST INCREASED WAGES IT
AUTOMATICALLY FOLLOWS THAT THE EMPLOYEES ARE ENTITLED TO SUBSTANTIATING
EVIDENCE.  EACH CASE MUST TURN UPON ITS PARTICULAR FACTS.  (FN7)  THE
INQUIRY MUST ALWAYS BE WHETHER OR NOT UNDER THE CIRCUMSTANCES OF THE
PARTICULAR CASE THE STATUTORY OBLIGATION TO BARGAIN IN GOOD FAITH HAS
BEEN MET.  SINCE WE CONCLUDE THAT THERE IS SUPPORT IN THE RECORD FOR
THE CONCLUSION OF THE BOARD HERE THAT RESPONDENT DID NOT BARGAIN IN
GOOD FAITH, IT WAS ERROR FOR THE COURT OF APPEALS TO SET ASIDE THE
BOARD'S ORDER AND DENY ENFORCEMENT.  REVERSED. 

FN1  "SEC.  8.(A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER: 

     *         *         *         *         * 

"(5) TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A). 

  *         *         *         *         * 

"(D)  FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS
THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT, OR ANY
QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN CONTRACT
INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY EITHER PARTY, BUT
SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR
REQUIRE THE MAKING OF A CONCESSION  ...  ."  49 STAT. 452-453, AS
AMENDED, 61 STAT. 140-142, 29 U.S.C. SECS. 158(A)(5), 158(D). 

FN2  OLD LINE LIFE INS. CO., 96 N.L.R.B. 499, 503; CINCINNATI STEEL
CASTINGS CO., 86 N.L.R.B. 592, 593. 

FN3  61 STAT. 154, 29 U.S.C. SEC. 174(A)(1). 

FN4  SEE SHERMAN, EMPLOYER'S OBLIGATION TO PRODUCE DATA FOR
COLLECTIVE BARGAINING, 35 MINN. L. REV. 24; DUNLOP, THE ECONOMICS OF
WAGE-DISPUTE SETTLEMENT, 12 LAW & CONTEMP.  PROB.  281, 290; WHAT KIND
OF INFORMATION DO LABOR UNIONS WANT IN FINANCIAL STATEMENTS?, 87 J.
ACCOUNTANCY 368; HOW COLLECTIVE BARGAINING WORKS (TWENTIETH CENTURY
FUND, 1942) 453. 

FN5  DAILY LABOR REPORT, NO. 156:  A4-A5 (BUREAU OF NATIONAL AFFAIRS,
AUG. 12, 1954); 35 LAB.  REL.  REP. 106; UNION VOTES WAGE FREEZE TO AID
RICE-STIX, ST. LOUIS GLOBE-DEMOCRAT, NOV. 25, 1954, P. 1, COL. 4;
STUDEBAKER MEN VOTE FOR PAY CUTS, N.Y. TIMES, AUG. 13, 1954, P. 1, COL.
5. 

FN6  SEE, E.G., SOUTHERN SADDLERY CO., 90 N.L.R.B. 1205, 1206-1207;
MCLEAN-ARKANSAS LUMBER CO., 109 N.L.R.B. 1022, 1035-1038; JACOBS
MANUFACTURING CO., 94 N.L.R.B. 1214, 1221-1222, ENFORCED, 196 F.2D 680;
AND CASES THEREIN CITED. 

FN7  SEE LABOR BOARD V. AMERICAN INS. CO., 343 U.S. 395, 409-410. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE CLARK AND MR. JUSTICE
HARLAN JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

THIS CASE INVOLVES THE NATURE OF THE DUTY TO BARGAIN WHICH THE
NATIONAL LABOR RELATIONS ACT IMPOSES UPON EMPLOYERS AND UNIONS. 
EMPLOYER  ...  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE
REPRESENTATIVES OF HIS EMPLOYEES," AND SEC. 8(B)(3) PLACES A LIKE DUTY
UPON THE UNION VIS-A-VIS THE EMPLOYER.  SECTION 8(D) PROVIDES THAT "TO
BARGAIN COLLECTIVELY IS THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE
EMPLOYER AND THE REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER
TERMS AND CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT,
OR ANY QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN
CONTRACT INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY EITHER
PARTY, BUT SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A
PROPOSAL OR REQUIRE THE MAKING OF A CONCESSION  ...  ."  61 STAT. 142,
29 U.S.C. SEC. 158(D). 

THESE SECTIONS OBLIGATE THE PARTIES TO MAKE AN HONEST EFFORT TO COME
TO TERMS; THEY ARE REQUIRED TO TRY TO REACH AN AGREEMENT IN GOOD
FAITH.  "GOOD FAITH" MEANS MORE THAN MERELY GOING THROUGH THE MOTIONS
OF NEGOTIATING; IT IS INCONSISTENT WITH A PREDETERMINED RESOLVE NOT TO
BUDGE FROM AN INITIAL POSITION.  BUT IT IS NOT NECESSARILY INCOMPATIBLE
WITH STUBBORNNESS OR EVEN WITH WHAT TO AN OUTSIDER MAY SEEM
UNREASONABLENESS.  A DETERMINATION OF GOOD FAITH OR OF WANT OF GOOD
FAITH NORMALLY CAN REST ONLY ON AN INFERENCE BASED UPON MORE OR LESS
PERSUASIVE MANIFESTATIONS OF ANOTHER'S STATE OF MIND.  THE PREVIOUS
RELATIONS OF THE PARTIES, ANTECEDENT EVENTS EXPLAINING BEHAVIOR AT THE
BARGAINING TABLE, AND THE COURSE OF NEGOTIATIONS CONSTITUTE THE RAW
FACTS FOR REACHING SUCH A DETERMINATION.  THE APPROPRIATE INFERENCES TO
BE DRAWN FROM WHAT IS OFTEN CONFUSED AND TANGLED TESTIMONY ABOUT ALL
THIS MAKES A FINDING OF ABSENCE OF GOOD FAITH ONE FOR THE JUDGMENT OF
THE LABOR BOARD, UNLESS THE RECORD AS A WHOLE LEAVES SUCH JUDGMENT
WITHOUT REASONABLE FOUNDATION.  SEE UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474. 

AN EXAMINATION OF THE BOARD'S OPINION AND THE POSITION TAKEN BY ITS
COUNSEL HERE DISCLOSE THAT THE BOARD DID NOT SO CONCEIVE THE ISSUE OF
GOOD-FAITH BARGAINING IN THIS CASE.  THE TOTALITY OF THE CONDUCT OF THE
NEGOTIATION WAS APPARENTLY DEEMED IRRELEVANT TO THE QUESTION; ONE FACT
ALONE DISPOSED OF THE CASE.  "IT IS SETTLED LAW THE BOARD CONCLUDED,
THAT WHEN AN EMPLOYER SEEKS TO JUSTIFY THE REFUSAL OF A WAGE INCREASE
UPON AN ECONOMIC BASIS, AS DID THE RESPONDENT HEREIN, GOOD-FAITH
BARGAINING UNDER THE ACT REQUIRES THAT UPON REQUEST THE EMPLOYER
ATTEMPT TO SUBSTANTIATE ITS ECONOMIC POSITION BY REASONABLE PROOF." 
110 N.L.R.B. 856. 

THIS IS TO MAKE A RULE OF LAW OUT OF ONE ITEM - EVEN IF A WEIGHTY
ITEM - OF THE EVIDENCE.  THERE IS NO WARRANT FOR THIS.  THE BOARD FOUND
AUTHORITY IN LABOR BOARD V. JACOBS MFG. CO., 196 F.2D 680.   THAT CASE
PRESENTED A VERY DIFFERENT SITUATION.  THE JACOBS COMPANY HAD ENGAGED
IN A COURSE OF CONDUCT WHICH THE BOARD HELD TO BE A VIOLATION OF SEC.
8(A)(5).  THE COURT OF APPEALS AGREED THAT IN LIGHT OF THE WHOLE RECORD
THE BOARD WAS ENTITLED TO FIND THAT THE EMPLOYER HAD NOT BARGAINED IN
GOOD FAITH.  ITS REFUSAL TO OPEN ITS "BOOKS AND SALES RECORDS" FOR
UNION PERUSAL WAS ONLY PART OF THE RECALCITRANT CONDUCT AND ONLY ONE
CONSIDERATION IN ESTABLISHING WANT OF GOOD FAITH.*  THE UNFAIR LABOR
PRACTICE WAS NOT FOUNDED ON THIS REFUSAL, AND THE COURT'S PRINCIPAL
CONCERN ABOUT THE DISCLOSURE OF FINANCIAL INFORMATION WAS WHETHER THE
BOARD'S ORDER SHOULD BE ENFORCED IN THIS RESPECT.  THE COURT SUSTAINED
THE BOARD'S REQUIREMENT FOR DISCLOSURE WHICH "WILL BE MET IF THE
RESPONDENT PRODUCES WHATEVER RELEVANT INFORMATION IT HAS TO INDICATE
WHETHER IT CAN OR CANNOT AFFORD TO COMPLY WITH THE UNION'S DEMANDS." 
196 F.2D 680, 684.  THIS IS A VERY FAR CRY INDEED FROM A RULING OF LAW
THAT FAILURE TO OPEN A COMPANY'S BOOKS ESTABLISHES LACK OF GOOD FAITH. 
ONCE GOOD FAITH IS FOUND WANTING, THE SCOPE OF RELIEF TO BE GIVEN BY
THE BOARD IS LARGELY A QUESTION OF ADMINISTRATIVE DISCRETION.  NEITHER
JACOBS NOR ANY OTHER COURT OF APPEALS' DECISION WHICH HAS BEEN CALLED
TO OUR ATTENTION SUPPORTS THE RULE OF LAW WHICH THE BOARD HAS FASHIONED
OUT OF ONE THREAD DRAWN FROM THE WHOLE FABRIC OF THE EVIDENCE IN THIS
CASE.    *"THE RESPONDENT CONTENDS THAT IT WAS UNDER NO STATUTORY DUTY
TO CONFER WITH THE UNION AFTER THE SECOND MEETING SINCE ALL OF THE
ISSUES HAD BEEN FULLY EXPLORED AND THE POSITION OF BOTH PARTIES
EXPRESSED.  WHETHER THIS WAS TRUE, HOWEVER, WAS A QUESTION OF FACT
WHICH THE BOARD FOUND ADVERSELY TO THE RESPONDENT.  SINCE AT BOTH THE
MEETINGS THE RESPONDENT TOOK THE POSITION THAT DISCUSSION OF WAGE
INCREASES WOULD BE FUTILE BECAUSE IT WAS FINANCIALLY UNABLE TO MAKE
THEM, AND SINCE IT REFUSED TO DISCUSS THE OTHER SUBJECTS AT ALL, THE
BOARD WAS JUSTIFIED IN CONCLUDING THAT THE RESPONDENT HAD REFUSED TO
BARGAIN IN GOOD FAITH AS THE ACT REQUIRES.  COLLECTIVE BARGAINING IN
COMPLIANCE WITH THE STATUTE REQUIRES MORE THAN VIRTUAL INSISTENCE UPON
A PREJUDGMENT THAT NO AGREEMENT COULD BE REACHED BY MEANS OF A
DISCUSSION."  LABOR BOARD V. JACOBS MFG. CO., 196 F.2D 680, AT 683. 

THE LABOR BOARD ITSELF HAS NOT ALWAYS APPROACHED "GOOD FAITH" AND THE
DISCLOSURE QUESTION IN SUCH A MECHANICAL FASHION.  IN SOUTHERN SADDLERY
CO., 90 N.L.R.B. 1205, THE BOARD ALSO FOUND THAT SEC. 8(A)(5) HAD BEEN
VIOLATED.  BUT HOW DIFFERENTLY THE BOARD THERE CONSIDERED ITS
FUNCTION. 

"BARGAINING IN GOOD FAITH IS A DUTY ON BOTH SIDES TO ENTER INTO
DISCUSSIONS WITH AN OPEN AND FAIR MIND AND A SINCERE PURPOSE TO FIND A
BASIS FOR AGREEMENT TOUCHING WAGES AND HOURS AND CONDITIONS OF LABOR. 
IN APPLYING THIS DEFINITION OF GOOD FAITH BARGAINING TO ANY SITUATION,
THE BOARD EXAMINES THE RESPONDENT'S CONDUCT AS A WHOLE FOR A CLEAR
INDICATION AS TO WHETHER THE LATTER HAS REFUSED TO BARGAIN IN GOOD
FAITH, AND THE BOARD USUALLY DOES NOT RELY UPON ANY ONE FACTOR AS
CONCLUSIVE EVIDENCE THAT THE RESPONDENT DID NOT GENUINELY TRY TO REACH
AN AGREEMENT."  90 N.L.R.B. 1205, 1206. 

THE BOARD FOUND OTHER FACTORS IN THE SOUTHERN SADDLERY CASE.  THE
EMPLOYER HAD MADE NO COUNTER-PROPOSALS OR EFFORTS TO "COMPROMISE THE
CONTROVERSY."  COMPARE, MCLEAN-ARKANSAS LUMBER CO., INC., 109 N.L.R.B.
1022.  SUCH SPECIFIC EVIDENCE IS NOT INDISPENSABLE, FOR A STUDY OF ALL
THE EVIDENCE IN A RECORD MAY DISCLOSE A MOOD INDICATIVE OF A
DETERMINATION NOT TO BARGAIN.  THAT IS FOR THE BOARD TO DECIDE.  IT IS
A PROCESS OF INFERENCE-DRAWING, HOWEVER, VERY DIFFERENT FROM THE ULTRA
VIRES LAW-MAKING OF THE BOARD IN THIS CASE. 

SINCE THE BOARD APPLIED THE WRONG STANDARD HERE, BY RULING THAT
TRUITT'S FAILURE TO SUPPLY FINANCIAL INFORMATION TO THE UNION
CONSTITUTED PER SE A REFUSAL TO BARGAIN IN GOOD FAITH, THE CASE SHOULD
BE RETURNED TO THE BOARD.  THERE IS SUBSTANTIAL EVIDENCE IN THE RECORD
WHICH INDICATES THAT TRUITT TRIED TO REACH AN AGREEMENT.  IT OFFERED A
2 1/2-CENT WAGE INCREASE, IT EXPRESSED WILLINGNESS TO DISCUSS WITH THE
UNION "AT ANY TIME THE PROBLEM OF HOW OUR WAGES COMPARE WITH THOSE OF
OUR COMPETITION," AND IT CONTINUED THROUGHOUT TO MEET AND DISCUSS THE
CONTROVERSY WITH THE UNION. 

BECAUSE THE RECORD IS NOT CONCLUSIVE AS A MATTER OF LAW, ONE WAY OR
THE OTHER, I CANNOT JOIN IN THE COURT'S DISPOSITION OF THE CASE.  TO
REVERSE THE COURT OF APPEALS WITHOUT REMANDING THE CASE TO THE BOARD
FOR FURTHER PROCEEDINGS, IMPLIES THAT THE BOARD WOULD HAVE REACHED THE
SAME CONCLUSION IN APPLYING THE RIGHT RULE OF LAW THAT IT DID IN
APPLYING A WRONG ONE.  I CANNOT MAKE SUCH A FORECAST.  I WOULD RETURN
THE CASE TO THE BOARD SO THAT IT MAY APPLY THE RELEVANT STANDING FOR
DETERMINING "GOOD FAITH." 
..END :









GENERAL BOX CO. V. UNITED STATES 351 U.S. 159 


NO. 383.  ARGUED MARCH 28, 1956.  - DECIDED MAY 7, 1956.  - 224 F.2D 7,
AFFIRMED. 


PETITIONER OWNED TIMBER ON "BATTURE," LAND LOCATED BETWEEN LOW- AND
HIGH-WATER MARK ON THE MISSISSIPPI RIVER IN LOUISIANA, WHICH WAS
SUBJECT TO A SERVITUDE OF THE STATE FOR LEVEE PURPOSES.  THE RIGHTS OF
THE STATE HAD BEEN DONATED TO THE UNITED STATES.  WITHOUT NOTICE TO
PETITIONER, THE TIMBER WAS DESTROYED BY A GOVERNMENT CONTRACTOR IN
LEVEE-BUILDING OPERATIONS, AND PETITIONER SUED IN THE FEDERAL COURT
UNDER THE TUCKER ACT TO RECOVER ITS VALUE.  HELD: 

1.  THIS COURT ACCEPTS THE DETERMINATION OF THE COURT OF APPEALS
THAT, UNDER LOUISIANA LAW, PRIOR NOTICE TO PETITIONER WAS NOT A
PREREQUISITE TO AN APPROPRIATION OF ITS TIMBER FOR LEVEE PURPOSES.  PP.
164-166. 

2.  PETITIONER'S PROPERTY WAS EFFECTIVELY APPROPRIATED BY STATE
AUTHORITIES PURSUANT TO THE SERVITUDE, AND THEREFORE THE UNITED STATES
IS NOT LIABLE TO PETITIONER FOR ITS VALUE.  PP. 166-167. 

3.  THE STATE HAVING DONATED TO THE UNITED STATES ITS RIGHTS AS
AGAINST PETITIONER'S TIMBER, THE UNITED STATES COULD EXERCISE THOSE
RIGHTS TO THE FULLEST EXTENT WITHOUT INCURRING LIABILITY, JUST AS THE
STATE COULD HAVE DONE.  P. 167. 

4.  THE DESTRUCTION OF PETITIONER'S TIMBER WAS NOT A TAKING BY THE
UNITED STATES IN THE EXERCISE OF THE POWER OF EMINENT DOMAIN FOR WHICH
THE FIFTH AMENDMENT REQUIRED COMPENSATION.  P. 167. 

GENERAL BOX CO. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

GENERAL BOX COMPANY, AN OWNER OF TREES OF COMMERCIAL VALUE ALONG THE
MAIN STEM OF THE MISSISSIPPI RIVER IN LOUISIANA, BROUGHT THIS ACTION TO
RECOVER FROM THE UNITED STATES THE VALUE OF ITS TIMBER DESTROYED BY THE
GOVERNMENT THROUGH ITS DULY AUTHORIZED AGENT, A CONTRACTOR. 

THE TREES GREW UPON LAND BELONGING TO OTHERS AND LOCATED BETWEEN THE
LOW- AND HIGH-WATER MARK OF THE RIVER.  SUCH LAND IS KNOWN IN LOUISIANA
AS "BATTURE."  (FN1)  SINCE COLONIAL DAYS BATTURE HAS BEEN SUBJECT TO A
SERVITUDE OF THE STATE FOR USE IN THE CONSTRUCTION AND MAINTENANCE OF
LEVEES.  IT MAY BE USED FOR THESE PURPOSES WITHOUT THE PAYMENT OF
COMPENSATION TO THE OWNER.  (FN2)  THE UNITED STATES COOPERATES WITH
LOUISIANA IN THE CONTAINMENT OF THE MISSISSIPPI WITHIN LEVEES.  (FN3)
TO CARRY OUT FEDERAL PLANS IN THE AREA IN CONTROVERSY, THE UNITED
STATES REQUIRES, (FN4) AND LOUISIANA AGREES TO FURNISH, (FN5) THE
NECESSARY RIGHTS-OF-WAY "WITHOUT COST" FOR THE CONSTRUCTION OF LEVEES. 
LOUISIANA HAS GIVEN GENERAL AUTHORITY TO ITS LEVEE BOARDS TO DONATE TO
THE UNITED STATES THE NECESSARY "LANDS, MOVABLE OR IMMOVABLE PROPERTY,
RIGHTS OF WAY, OR SERVITUDES" FOR FLOOD CONTROL USE.  (FN6)  THE FIFTH
LOUISIANA LEVEE DISTRICT, THE ONE HERE INVOLVED, AGREED TO MEET THE
REQUIREMENTS OF THE FEDERAL FLOOD CONTROL ACT.  (FN7) 

THE LOCATION OF THE OPERATION GIVING RISE TO THIS ACTION WAS AT THE
BRABSTON LEVEE IN THE FIFTH LOUISIANA LEVEE DISTRICT.  THE FIRST STEP
TAKEN BY THE UNITED STATES TO OBTAIN THE PERMISSION OF THE STATE TO USE
THE STATE'S SERVITUDE IN THE BATTURE HERE IN ISSUE WAS THE FILING OF
THE FEDERAL PLANS WITH THE STATE DISTRICT ENGINEER.  THE PLANS WERE
APPROVED BY THE ENGINEER AND THE LOCAL LEVEE BOARD WAS SO NOTIFIED. 
(FN8)  ON JUNE 10, 1947, THE LEVEE BOARD RECEIVED THE DRAWINGS FROM THE
UNITED STATES DISTRICT ENGINEER WITH THE FOLLOWING REQUEST FOR
AUTHORITY: 

"IT IS DESIRED THAT THIS DISTRICT BE FURNISHED A FORMAL STATEMENT BY
YOUR BOARD THAT RIGHTS-OF-WAY ARE AVAILABLE FOR THE CONSTRUCTION OF THE
ENLARGEMENT AND GRANTING THE UNITED STATES A RIGHT OF ENTRY TO
PROSECUTE THE WORK.  THIS STATEMENT MAY BE IN THE FORM OF A LETTER
SIGNED BY THE PRESIDENT OF THE BOARD." 

UNDER A STANDING RESOLUTION, ADOPTED SEPTEMBER 12, 1945, THE
PRESIDENT OF THE BOARD WAS EMPOWERED TO HONOR APPLICATIONS FOR SUCH
AUTHORITY.  (FN9)  ON JUNE 12, 1947, THE BOARD PRESIDENT RESPONDED TO
THE UNITED STATES ENGINEER, QUOTING THE WORDS OF THE REQUEST AND
ADDING: 

"THE BOARD OF COMMISSIONERS OF THE FIFTH LOUISIANA LEVEE DISTRICT
HEREBY IS GLAD TO COMPLY WITH YOUR REQUEST AND RENDER YOU ANY
ASSISTANCE POSSIBLE." 

ON JULY 9 THAT LETTER WAS SPREAD UPON THE MINUTES OF THE BOARD.  WE
ACCEPT THAT, AS DID THE COURT OF APPEALS, AS A RATIFICATION BY THE
BOARD OF THE ACT OF ITS PRESIDENT.  ON JULY 10 THE CONTRACTORS WHO WERE
TO EXECUTE THE LEVEE WORK WERE AUTHORIZED BY THE UNITED STATES TO
PROCEED WITHIN 20 DAYS, AND THE CLEARING OF THE BATTURE WAS COMMENCED
ON JULY 22. 

NO NOTICE WAS GIVEN TO PETITIONER OF THE INTENTION TO BULLDOZE ITS
TREES OFF THE BATTURE.  ON SEPTEMBER 12 THE PETITIONER DISCOVERED THAT
THE TREES WERE BEING DESTROYED, AND AN OBJECTION WAS PROMPTLY MADE. 
THE CONTRACTOR, HOWEVER, REFUSED TO HALT ITS OPERATIONS, RELYING UPON
ITS CONTRACT WITH THE GOVERNMENT. 

PETITIONER BROUGHT TWO ACTIONS IN THE DISTRICT COURT UNDER THE TUCKER
ACT, 28 U.S.C.  SEC. 1346(A)(2), TO RECOVER THE VALUE OF THE DESTROYED
TIMBER.  (FN10)  THE SUITS WERE CONSOLIDATED FOR TRIAL, AND ULTIMATELY
A SINGLE JUDGMENT WAS ENTERED AGAINST THE UNITED STATES IN THE AMOUNT
OF $10,801 PLUS INTEREST.  (FN11)  BOTH THE UNITED STATES AND
PETITIONER TOOK APPEALS TO THE COURT OF APPEALS, THE FORMER ON THE
MERITS AND THE LATTER FROM SO MUCH OF THE JUDGMENT AS FIXED THE
INTEREST AT 4% FROM DATE OF JUDGMENT.  THE COURT OF APPEALS REVERSED,
HOLDING THE UNITED STATES TO BE FREE FROM LIABILITY.  (FN12)  WE
GRANTED CERTIORARI TO EXAMINE THE LIABILITY OF THE UNITED STATES FOR
PROCEEDING TO CLEAR THIS LAND WITHOUT NOTICE TO PETITIONER, THE OWNER
OF THE TREES, AND THUS WITHOUT GRANTING PETITIONER A REASONABLE
OPPORTUNITY TO SALVAGE THE TIMBER.  (FN13) 

ONE OF THE DEFENSES RELIED UPON BY THE UNITED STATES THROUGHOUT THIS
LITIGATION IS A CLAIM THAT IT IS NOT LIABLE TO PETITIONER FOR THE
TIMBER LOSSES BECAUSE IT RECEIVED RIGHTS-OF-WAY ON THE LAND INVOLVED
FROM THE LEVEE BOARD, AND THAT THE LEVEE BOARD LEGALLY APPROPRIATED
THOSE RIGHTS-OF-WAY WITHOUT COMPENSATION UNDER ITS RIPARIAN SERVITUDE. 
PETITIONER CONCEDES THAT UNDER THE CIVIL LAW OF LOUISIANA THE PROPERTY
ON WHICH ITS TREES WERE STANDING, BEING BATTURE, IS SUBJECT TO A
RIPARIAN SERVITUDE FOR USE BY THE STATE OF LOUISIANA IN CONSTRUCTING
AND REPAIRING LEVEES, AND THAT HISTORICALLY THE OWNER OF SUCH PROPERTY
HAS BEEN REQUIRED TO PERMIT STATE USE WITHOUT COMPENSATION OF SUCH PART
THEREOF AS MIGHT BE NEEDED FOR LEVEE PURPOSES.  AND IT IS NOT DENIED
THAT THE TIMBER ON THIS LAND, AS WELL AS THE LAND ITSELF, IS SUBJECT TO
THE EXERCISE OF THE SERVITUDE FOR LEVEE PURPOSES.  (FN14) 

PETITIONER IN EFFECT DOES CLAIM, HOWEVER, THAT THE STATE DID NOT
EFFECTIVELY EXERCISE THE RIPARIAN SERVITUDE FOR THE REASON THAT THE
APPROPRIATION HERE WAS ARBITRARY AND THEREFORE BEYOND THE POWER OF THE
STATE.  THIS CONTENTION IS BASED UPON THE FACT THAT NO NOTICE OF THE
PROPOSED DESTRUCTION WAS GIVEN TO PETITIONER.  IT IS ARGUED THAT UNDER
LOUISIANA LAW, WHICH OF COURSE DEFINES THE BOUNDS OF THE RIPARIAN
SERVITUDE, THE POWER POSSESSED BY THE STATE BY REASON OF THE SERVITUDE
IS NOT AN UNLIMITED AND ARBITRARY POWER; (FN15) THAT IT WOULD BE
ARBITRARY, OPPRESSIVE AND UNJUST TO EXERCISE THE STATE'S RIGHTS UNDER
THE SERVITUDE IN THE CIRCUMSTANCES OF THIS CASE WITHOUT PRIOR NOTICE TO
PETITIONER; THAT THEREFORE THE ATTEMPT BY THE STATE TO EXERCISE THE
SERVITUDE WITHOUT SUCH NOTICE WAS INEFFECTIVE TO CAUSE AN APPROPRIATION
OF THE TIMBER PURSUANT TO THE SERVITUDE.  IF LOUISIANA COULD NOT
EXERCISE ITS RIGHTS UNDER THE SERVITUDE WITHOUT FIRST GIVING NOTICE TO
PETITIONER, THE TIMBER HERE INVOLVED WAS NEVER SUCCESSFULLY TAKEN BY
THE STATE FREE OF AN OBLIGATION TO COMPENSATE FOR THE TAKING.  (FN16)
IT WOULD FOLLOW THAT THE UNITED STATES RECEIVED NO RIGHTS FROM THE
LEVEE BOARD PERMITTING DESTRUCTION OF THE TREES BY IT FREE OF THAT
OBLIGATION.  THE COURT OF APPEALS HELD, BASED UPON ITS ANALYSIS OF
LOUISIANA LAW, THAT PRIOR NOTICE TO PETITIONER WAS NOT A PREREQUISITE
TO AN APPROPRIATION OF ITS TIMBER FOR LEVEE PURPOSES.  WE ORDINARILY
ACCEPT THE DETERMINATIONS OF THE COURTS OF APPEALS ON QUESTIONS OF
LOCAL LAW, AND WE DO SO HERE.  RAGAN V. MERCHANTS TRANSFER CO., 337
U.S. 530, 534; HUDDLESTON V. DWYER, 322 U.S. 232, 237. 

THE LOUISIANA COURTS HAVE MADE NO PRONOUNCEMENT WHICH DIRECTLY
CONTROLS THIS QUESTION.  BUT SEE BOARD OF COMM'RS V. TROUILLE, 212 LA.
152, 31 SO. 2D 700.  THE SUPREME COURT OF LOUISIANA HAS, HOWEVER, AS
RECENTLY AS 1946, REVIEWED THE LONG HISTORY OF THE RIPARIAN SERVITUDE. 
DICKSON V. BOARD OF COMM'RS, 210 LA. 121, 26 SO. 2D 474.  IN THAT CASE
IT WAS NOTED THAT: 

"  ...  WHILE IN ALL OF THE REMAINING STATES OF THE UNION LANDS
NECESSARY FOR LEVEE PURPOSES CAN ONLY BE USED AFTER EXPROPRIATION AND
PROPER INDEMNIFICATION, IN LOUISIANA THE STATE HAS THE RIGHT TO ACT
FIRST, I.E., THE AUTHORITY TO APPROPRIATE SUCH LAND TO A USE TO WHICH
IT IS SUBJECT UNDER ITS VERY TITLE, AND TALK LATER. 

*         *         *         *         * 

"  ...  AND HOWEVER UNFAIR IT MAY SEEM TO THE OWNERS OF THIS TYPE OF
LAND THEY ARE WITHOUT RIGHT TO COMPLAIN BECAUSE THEIR ACQUISITION OF
SUCH LAND WAS SUBJECT BY LAW TO THIS ANCIENT SERVITUDE AND THE PRIVATE
MISCHIEF MUST BE ENDURED RATHER THAN THE PUBLIC INCONVENIENCE OR
CALAMITY."  210 LA., AT 132, 136, 26 SO. 2D, AT 478, 479. 

THE COURT FURTHER STATED THAT THE RIGHTS OF THE STATE UNDER THE
SERVITUDE CAN BE EXERCISED IN THE WAY FOUND TO BE "MOST EXPEDITIOUS
FROM AN ENGINEERING, ECONOMICAL, AND PRACTICAL STANDPOINT.  210 LA., AT
138, 26 SO. 2D, AT 480; BOARD OF COMM'RS V. FRANKLIN, 219 LA.  859,
866, 54 SO. 2D 125, 127-128.  THE LEVEE ENLARGEMENT PLAN HERE CALLED
FOR BULLDOZING STANDING TIMBER FOR REASONS OF ECONOMY - THAT OPERATION
ADMITTEDLY BEING A LESS EXPENSIVE METHOD FOR CLEARING LAND THAN
REMOVING THE STUMPS OF CUT TIMBER.  THE SERVITUDE WAS DEVELOPED SO AS
TO INSURE "THAT THE SHORES OF NAVIGABLE RIVERS AND STREAMS IN THIS
STATE WOULD ALWAYS BE KEPT FREE FOR THE PUBLIC FOR LEVEE  ...
PURPOSES."   210 LA., AT 131-132, 26 SO. 2D, AT 478.  THIS HISTORICAL
BACKGROUND MAKES CLEAR THAT THE RIGHTS OF THE STATE IN PROPERTY SUBJECT
TO THE SERVITUDE ARE VERY BROAD.  BY LAW, AND FOR THE GOOD OF ALL,
LANDS WERE MADE AVAILABLE TO THE STATE FOR LEVEE PURPOSES IN AS
CONVENIENT A MANNER TO THE STATE AS WAS NECESSARY FOR THE PUBLIC
WELFARE, AND WITH LITTLE REGARD FOR THE SEVERITY OF THE OBLIGATIONS
IMPOSED ON THE INDIVIDUAL PROPERTY OWNER.  NOTHING IN THE DEVELOPMENT
OF THE SERVITUDE INDICATES THAT, BEFORE THE STATE CAN EXERCISE ITS
OBVIOUSLY COMPREHENSIVE RIGHTS, IT MUST PROVIDE AN OPPORTUNITY TO
REMOVE TIMBER FROM BATTURE. 

SINCE, AS WE HOLD, PETITIONER'S PROPERTY WAS EFFECTIVELY APPROPRIATED
BY STATE AUTHORITIES PURSUANT TO THE SERVITUDE, THE UNITED STATES
CANNOT BE LIABLE TO PETITIONER FOR THE VALUE OF THE PROPERTY.  THE
STATE, AS OWNER OF THE SERVITUDE, LEGALLY COULD HAVE DESTROYED THE
TIMBER WITHOUT PRIOR NOTICE AND WITHOUT ANY OPPORTUNITY FOR MITIGATION
OF LOSSES, AND YET BE FREE OF LIABILITY TO PETITIONER.  THE
DESTRUCTION, IT SEEMS TO US, WAS CONSISTENT WITH THE RIGHTS OF THE
STATE UNDER THE SERVITUDE.  RATHER THAN UNDERTAKE THE LEVEE PROJECT
ITSELF, LOUISIANA, THROUGH ONE OF ITS AGENCIES, DONATED ITS RIGHTS AS
AGAINST PETITIONER'S TIMBER TO THE UNITED STATES.  THE UNITED STATES,
AS DONEE OF THOSE RIGHTS, COULD EXERCISE THEM TO THEIR FULL EXTENT
WITHOUT INCURRING LIABILITY, JUST AS ITS DONOR COULD HAVE DONE. 

THE PETITIONER SOUGHT COMPENSATION FOR THE DESTRUCTION OF THE TREES
BASED UPON A CLAIM THAT THE "DESTRUCTION OF SAID TIMBER WAS A TAKING
...  WITHIN THE MEANING OF THE FIFTH AMENDMENT TO THE FEDERAL
CONSTITUTION."  BUT THIS PROPERTY WAS NOT TAKEN BY THE UNITED STATES IN
THE EXERCISE OF ITS POWER OF EMINENT DOMAIN.  IN EFFECT, THE TIMBER WAS
"OWNED" BY LOUISIANA FOR LEVEE PURPOSES, AND THE UNITED STATES
SUCCEEDED TO THAT "OWNERSHIP" BY "CONVEYANCE."  LOUISIANA FURNISHED ITS
BATTURE AS REQUIRED BY THE LAW OF BOTH THE UNITED STATES AND LOUISIANA
FOR USE IN PROTECTING THE PROPERTY IN THE STATE FROM FLOODS. 
PETITIONER DID NOT ASSERT IN ITS COMPLAINTS OR IN ITS QUESTION
PRESENTED ON PETITION FOR CERTIORARI THAT THE DESTRUCTION VIOLATED THE
DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.   (FN17)  AFFIRMED. 

FN1  BATTURE IS "THAT PART OF THE RIVER BED WHICH IS UNCOVERED AT THE
TIME OF LOW WATER, BUT IS COVERED ANNUALLY AT THE TIME OF ORDINARY HIGH
WATER."  BOYCE COTTONSEED OIL MFG. CO. V. BOARD OF COMM'RS, 160 LA.
727, 734, 107 SO. 506, 508. 

FN2  SEE WOLFE V. HURLEY, 46 F.2D 515, AFFIRMED, 283 U.S. 801;
DICKSON V. BOARD OF COMM'RS, 210 LA. 121, 26 SO. 2D 474; PRUYN V.
NELSON BROS., 180 LA. 760, 157 SO. 585; MAYER V. BOARD OF COMM'RS, 177
LA. 1119, 150 SO. 295; PEART V. MEEKER, 45 LA. ANN. 421, 12 SO. 490;
LA. CIVIL CODE, 1945, ART. 665; LA. CONST., 1921, ART. XVI, SEC. 6. 

FN3  FEDERAL FLOOD CONTROL ACT OF MAY 15, 1928, 45 STAT. 534, AS
AMENDED, 33 U.S.C.  SEC. 702A ET SEQ. 

FN4  33 U.S.C. SEC. 702C. 

FN5  LA. CONST., 1921, ART. XVI, SEC. 5.  AND SEE NOTE 6, INFRA. 

FN6  ACT NO. 75, ACTS OF 1940, LA. REV. STAT., 1950, 52:2.  AND SEE
ACT NO. 76, ACTS OF 1938, LA. GEN. STAT., 1939, SEC. 6869.3. 

FN7  THE BOARD OF COMMISSIONERS OF THE FIFTH LOUISIANA LEVEE DISTRICT
ADOPTED GENERAL RESOLUTIONS IN 1928 AND 1929, IN CONSIDERATION OF THE
BENEFITS OF THE FLOOD CONTROL ACT, AGREEING TO "PROVIDE WITHOUT COST TO
THE UNITED STATES ALL RIGHTS OF WAY FOR LEVEE FOUNDATIONS AND LEVEES ON
THE MAIN STEM OF THE MISSISSIPPI RIVER." 

FN8  ON MAY 19, 1947, THE STATE DISTRICT ENGINEER WROTE TO THE
PRESIDENT OF THE LEVEE BOARD AS FOLLOWS: 

"WE ARE IN RECEIPT OF A LETTER FROM COLONEL JOHN R. HARDIN, DISTRICT
ENGINEER, NEW ORLEANS DISTRICT, U.S. ENGINEERS, DATED MAY 9 TOGETHER
WITH PROJECT PLANS OF THE PROPOSED ENLARGEMENT OF THE BRABSTON AND
ASHLAND LEVEES SOUTH OF VIDALIA, LOUISIANA. 

"WE HAVE EXAMINED THESE PLANS AND IT IS RECOMMENDED THAT YOUR BOARD
CONCUR WITH COLONEL HARDIN IN ENLARGING THESE TWO LOW SECTIONS OF LEVEE
IN ACCORDANCE WITH PLANS, PROVIDED THAT PROVISIONS ARE MADE FOR
DRAINING EXISTING GRAVEL ROAD ON CROWN OF OLD LEVEE." 

FN9  "DUE TO THE FACT THAT IN EMERGENCY LEVEE WORK DELAYS ARE AT
TIMES CAUSED BY THE NECESSITY OF WAITING FOR RIGHTS-OF-WAYS UNTIL THE
NEXT REGULAR BOARD MEETING, COMMISSIONER YERGER OFFERED THE MOTION,
SECONDED BY COMMISSIONER GUENARD, AND UNANIMOUSLY APPROVED, THAT THE
PRESIDENT OF THE BOARD, MR. A.T. SHIELDS, BE AND HE IS HEREBY
AUTHORIZED AND EMPOWERED ON BEHALF OF THE BOARD OF COMMISSIONERS, FIFTH
LOUISIANA LEVEE DISTRICT, TO GRANT RIGHTS OF WAY WHERE THE NEED IS
IMMEDIATE, THE PROPER RIGHT-OF-WAY RESOLUTIONS TO BE PASSED IN THE
REGULAR MANNER AT THE FOLLOWING BOARD MEETING."    FN10  ALTHOUGH
ALTERNATIVE CLAIMS WERE MADE UNDER THE FEDERAL TORT CLAIMS ACT, 28
U.S.C. SEC. 1346(B), THEY WERE ABANDONED WHILE THE CASES WERE STILL IN
THE DISTRICT COURT.  SEE 107 F. SUPP. 981. 

FN11  119 F. SUPP. 749.  SEE ALSO PRIOR OPINIONS OF THE DISTRICT
COURT IN THIS CASE AT 94 F. SUPP. 441 AND 107 F. SUPP. 981.    FN12
224 F.2D 7. 

FN13  350 U.S. 882. 

THE BOARD OF COMMISSIONERS OF THE FIFTH LEVEE DISTRICT WAS MADE A
THIRD PARTY DEFENDANT IN THE DISTRICT COURT PURSUANT TO A MOTION OF THE
UNITED STATES.  IT WAS AND IS THE GOVERNMENT'S POSITION THAT, IF IT IS
LIABLE TO PETITIONER, IT IS ENTITLED TO JUDGMENT OVER AGAINST THE
BOARD.  THE DISTRICT COURT RULED THAT THE UNITED STATES WAS LIABLE AND
THAT IT, AND NOT THE LEVEE BOARD, MUST PAY THE AWARD.  119 F. SUPP.
749.  THE COURT OF APPEALS DID NOT REACH THE QUESTION OF THE LIABILITY
OF THE BOARD OVER TO THE UNITED STATES SINCE THAT COURT HELD THAT THE
UNITED STATES WAS NOT LIABLE AT ALL.  IN VIEW OF OUR DISPOSITION OF THE
CASE, WE LIKEWISE NEED NOT REACH THAT QUESTION. 

FN14  CF. LACOUR V. RED RIVER, A.&B.B. LEVEE DIST., 158 LA. 737, 104
SO. 636; LA.  CONST., 1921, ART. XVI, SEC. 6; LOUISIANA CIVIL CODE,
1945, ART. 665. 

PETITIONER SUGGESTS THAT THE DESTRUCTION OF THE TIMBER IN THIS CASE
WAS NOT FOR "LEVEE PURPOSES," BUT RATHER WAS UNDERTAKEN MERELY FOR THE
PURPOSE OF SAVING THE GOVERNMENT MONEY.  THIS CONTENTION IS BASED ON
THE FACT THAT THE ONLY REASON THE TREES WERE DESTROYED WAS BECAUSE THE
CONTRACTORS WERE PERMITTED UNDER THEIR CONTRACT TO BULLDOZE THE
STANDING TREES - A LESS EXPENSIVE METHOD FOR CLEARING LAND THAN
REMOVING THE STUMPS OF CUT TIMBER.  BUT IN ORDER FOR THE USE OF THE
TIMBER TO BE FOR "LEVEE PURPOSES," IT IS NOT NECESSARY THAT THE TREES
THEMSELVES BE EMPLOYED IN THE CONSTRUCTION OR IMPROVEMENT OF THE
LEVEE.  IT IS SUFFICIENT IF THE TREES WERE DESTROYED IN CONNECTION WITH
A LEVEE PROJECT.  CF.  LACOUR V. RED RIVER, A.&B.B. LEVEE DIST., SUPRA;
LA. CONST., 1921, ART. XVI, SEC. 6. 

FN15  PETITIONER RELIES ON LANGUAGE IN PEART V. MEEKER, 45 LA. ANN.
421, 426, 12 SO.  490, 492; AND IN PRUYN V. NELSON BROS., 180 LA. 760,
768, 157 SO. 585, 587. 

FN16  LA. CONST., 1921, ART. I, SEC. 2. 

FN17  CF. ELDRIDGE V. TREZEVANT, 160 U.S. 452; MAYOR OF VIDALIA V.
MCNEELY, 274 U.S. 676; WOLFE V. HURLEY, 46 F.2D 515, AFF'D, 283 U.S.
801; BOARD OF COMM'RS V. FRANKLIN, 219 LA. 859, 54 SO. 2D 125, APPEAL
DISMISSED, 342 U.S. 844, ON AUTHORITY OF ELDRIDGE V. TREZEVANT, SUPRA,
AND WOLFE V. HURLEY, SUPRA. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE CONFLICTING VIEWS BETWEEN TWO MEMBERS AND THE REST OF THIS COURT
ON THE LAW OF LOUISIANA RELEVANT TO THE ISSUE IN THIS CASE PROVE ONCE
MORE WHAT A PRECARIOUS BUSINESS IT IS FOR US TO ADJUDICATE A FEDERAL
ISSUE DEPENDENT ON WHAT THE COURT FINDS TO BE STATE LAW, WHEN THE
HIGHEST COURT OF A STATE HAS NOT GIVEN US AUTHORITATIVE GUIDANCE
REGARDING ITS LAW.  IN LIKE SITUATIONS I HAVE, FROM TIME TO TIME,
SUGGESTED THAT LEGAL PROCEDURE IS NOT WITHOUT RESOURCES FOR ENABLING US
TO FOUND OUR DECISION SECURELY ON STATE LAW.  SEE, E.G., PROPPER V.
CLARK, 337 U.S. 472, 493 (DISSENTING IN PART).  BY MEANS OF THE
DECLARATORY JUDGMENT (IT IS AVAILABLE IN LOUISIANA, LA. REV. STAT.,
1950, 13:4231 ET SEQ.) OR OTHERWISE, IT OUGHT TO BE POSSIBLE TO SUSPEND
DEFINITIVE JUDGMENT ON THE FEDERAL ISSUE UNTIL A PRONOUNCEMENT CAN BE
HAD FROM THE STATE COURT ON CONTROLLING STATE LAW.  FOR MYSELF I AM
PREPARED SO TO PROCEED HERE.  IN DEFAULT OF IT, I CONCUR IN THE OPINION
AND JUDGMENT OF THE COURT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE HARLAN CONCURS,
DISSENTING. 

WE HAVE AT THE ROOT OF THIS CASE A QUESTION OF LOUISIANA LAW -
WHETHER THE TIMBER GROWN ON BATTURE IS "PROPERTY" AND, IF SO, WHETHER
IT MAY BE CONFISCATED WITHOUT ANY OPPORTUNITY TO THE OWNER TO SALVAGE
OR REMOVE IT.  THE TIMBER CONCEDEDLY IS OF VALUE.  IT IS BOUGHT AND
SOLD AND PLAYS A SIGNIFICANT ROLE IN THE CONDUCT OF COMMERCIAL
ENTERPRISES.  (FN1)  THE COURT APPARENTLY CONCEDES THAT THE TIMBER IS
"PROPERTY" WITHIN THE MEANING OF THE FIFTH AMENDMENT.  OTHERWISE THE
COURT WOULD NOT RESERVE DECISION ON WHETHER THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT HAS BEEN VIOLATED.  IF THE TIMBER IS "PROPERTY" SO
FAR AS THE DUE PROCESS CLAUSE IS CONCERNED, IT WOULD SEEM TO BE
"PROPERTY" WITHIN THE MEANING OF THE JUST COMPENSATION CLAUSE OF THE
SAME AMENDMENT.  THE QUESTION THEN COMES DOWN TO WHETHER THE TIMBER MAY
BE CONFISCATED WITHOUT ANY NOTICE TO THE OWNER.  IF LOUISIANA COULD NOT
CONFISCATE THE TIMBER, THEN THE UNITED STATES CERTAINLY MAY NOT.  FOR
THE UNITED STATES HAS SUCCEEDED TO SUCH OWNERSHIP AS LOUISIANA HAS. 

CONCEDEDLY THIS LAND BETWEEN LOW- AND HIGH-WATER MARK - THE BATTURE -
MAY BE USED AS THE STATE CHOOSES FOR THE CONSTRUCTION AND MAINTENANCE
OF LEVEES WITHOUT COMPENSATION TO ANYONE.  BUT WE HAVE IT ON EXCELLENT
AUTHORITY THAT, UNDER LOUISIANA LAW, PRIVATE PROPERTY ON THE BATTURE
MAY NOT BE CONFISCATED WITHOUT REASONABLE OPPORTUNITY OF THE OWNER TO
SALVAGE IT.  THE AUTHORITY IS THE EMINENT DISTRICT JUDGE WHO DECIDED
THIS CASE, HON.  BEN C. DAWKINS.  JUDGE DAWKINS, WHO WAS APPOINTED TO
THE FEDERAL BENCH IN 1924, WAS A LOUISIANA LAWYER OF DISTINCTION.  HE
NOT ONLY PRACTICED LAW IN THAT STATE.  FROM 1912-1918 HE WAS A STATE
DISTRICT JUDGE AND FROM 1918-1924 AN ASSOCIATE JUSTICE OF LOUISIANA'S
SUPREME COURT.  HE WAS A MEMBER OF THE LOUISIANA CONSTITUTIONAL
CONVENTION IN 1921.  INDEED, JUDGE DAWKINS WAS THE AUTHOR OF ART. XVI,
SEC. 6 OF THE LOUISIANA CONSTITUTION, WHICH PROVIDES THAT BATTURE MAY
BE TAKEN FOR LEVEE PURPOSES WITHOUT COMPENSATION.  SEE GENERAL BOX CO.
V. UNITED STATES, 107 F. SUPP. 981, 983.  JUDGE DAWKINS HELD THAT,
UNDER LOUISIANA LAW, NOTICE TO THE OWNER OF THE TIMBER WAS NECESSARY. 
THERE IS NO SQUARE HOLDING OF THE LOUISIANA COURTS ON THE POINT.   THE
PROBLEM LIES IN THE PENUMBRA OF LOUISIANA LAW, MAKING ALL THE MORE
DIFFICULT A PREDICTION AS TO WHAT THE LOUISIANA COURTS WOULD HOLD.  ON
QUESTIONS FAR LESS COMPLICATED OR OBSCURE THAN THIS ONE, WE HAVE
DEFERRED TO DECISIONS OF THE LOWER FEDERAL JUDGE ON THE LOCAL LAW OF
HIS OWN STATE.  SEE MACGREGOR V. STATE MUTUAL CO., 315 U.S. 280, 281;
HUDDLESTON V. DWYER, 322 U.S. 232, 237; HILLSBOROUGH V. CROMWELL, 326
U.S. 620, 630; STEELE V. GENERAL MILLS, 329 U.S. 433, 439; RAGAN V.
MERCHANTS TRANSFER CO., 337 U.S. 530, 534; BERNHARDT V. POLYGRAPHIC
CO., 350 U.S. 198, 204. 

JUDGE DAWKINS RELIED ON PRUYN V. NELSON BROS., 180 LA. 760, 768, 157
SO. 585, 587, WHERE THE LOUISIANA SUPREME COURT IN REVIEWING THE
SERVITUDE GOVERNING BATTURE SAID: 

"THIS SERVITUDE IS LIMITED ONLY BY THE REASONABLENESS OF ITS USE, AND
THE ADMINISTRATIVE OFFICERS OF THE STATE OF LOUISIANA ARE CHARGED WITH
DETERMINING THAT LIMIT, SUBJECT TO REVIEW BY THE COURTS ONLY WHEN
OPPRESSION OR INJUSTICE IS SHOWN AND PROVED." 

JUDGE DAWKINS RULED THAT WHAT WAS DONE IN THIS CASE AMOUNTED TO
"OPPRESSION OR INJUSTICE" WITHIN THE MEANING OF THE PRUYN CASE.  SEE
119 F. SUPP. 749, 751.  I WOULD DEFER TO HIS JUDGMENT.  WE ARE DEALING
WITH NUANCES OF LOCAL LAW THAT ONLY ONE TRAINED IN IT CAN EVALUATE. 
(FN2)  THE DIFFICULTY IS COMPOUNDED FOR COMMON-LAW LAWYERS.  FOR THIS
IS CIVIL LAW THAT HAS OVERTONES FROM DISTINCT LANGUAGES AND HISTORY. 

MR. JUSTICE HOLMES WROTE, IN A CASE FROM PUERTO RICO, OF THE SPECIAL
DEFERENCE DUE LOCAL JUDGES ON RULINGS UPON MATTERS UNDER THE CIVIL
LAW.  DIAZ V. GONZALEZ, 261 U.S. 102, 105-106: 

"THIS IS ESPECIALLY TRUE IN DEALING WITH THE DECISIONS OF A COURT
INHERITING AND BROUGHT UP IN A DIFFERENT SYSTEM FROM THAT WHICH
PREVAILS HERE.  WHEN WE CONTEMPLATE SUCH A SYSTEM FROM THE OUTSIDE IT
SEEMS LIKE A WALL OF STONE, EVERY PART EVEN WITH ALL THE OTHERS, EXCEPT
SO FAR AS OUR OWN LOCAL EDUCATION MAY LEAD US TO SEE SUBORDINATIONS TO
WHICH WE ARE ACCUSTOMED.  BUT TO ONE BROUGHT UP WITHIN IT, VARYING
EMPHASIS, TACIT ASSUMPTIONS, UNWRITTEN PRACTICES, A THOUSAND INFLUENCES
GAINED ONLY FROM LIFE, MAY GIVE TO THE DIFFERENT PARTS WHOLLY NEW
VALUES THAT LOGIC AND GRAMMAR NEVER COULD HAVE GOT FROM THE BOOKS." 

I CANNOT READ THE LOUISIANA DECISIONS WITHOUT FEELING THAT JUDGE
DAWKINS WAS RIGHT ON THE LAW.  (FN3)  THE SERVITUDE GOVERNING BATTURE
IS DOMINANT BUT NOT ABSOLUTE.  PRIVATE PROPERTY MUST GIVE WAY BEFORE IT
- BUT ONLY TO THE EXTENT THAT THE PUBLIC WELFARE DEMANDS.  AS STATED IN
PEART V. MEEKER, 45 LA. ANN. 421, 426, 12 SO. 490, 492: 

"IT IS UNDOUBTEDLY THE DUTY OF PUBLIC OFFICERS CHARGED BY THE STATE
WITH THE EXECUTION OF ITS POLICE POWER TO MAKE NO GREATER SACRIFICE OF
PRIVATE RIGHTS THAN THE PUBLIC WELFARE DEMANDS.  IN SEVERAL CASES THIS
COURT HAS SAID THAT THE POWER SO CONFERRED IS NOT ARBITRARY, AND THAT
THE CITIZEN IS NOT WITHOUT REMEDY TO SUBJECT IT TO JUDICIAL CONTROL IN
PROPER CASES." 

IF THE STATE DESTROYED A HOME OR OTHER STRUCTURE IN THE BATTURE
WITHOUT NOTICE TO THE OWNER, I THINK LOUISIANA WOULD GRANT A REMEDY -
PROVIDED OF COURSE THE STATE WAS NOT CONFRONTED WITH AN EMERGENCY AND
DID NOT HAVE TO ACT WITH SPEED.  BUT, WHERE THERE IS TIME TO GIVE
NOTICE, IT IS "OPPRESSIVE" NOT TO DO SO, AS JUDGE DAWKINS SAID. 

EVEN IF I AM MISTAKEN IN THIS VIEW OF THE LOUISIANA LAW, I WOULD HOLD
AS A MATTER OF FEDERAL LAW THAT THE UNITED STATES CANNOT RELY ON THE
STATE-CREATED SERVITUDE TO JUSTIFY ITS OWN ACTION, WHICH BORDERS ON THE
WANTON DESTRUCTION OF THE PROPERTY INTERESTS OF THE PRIVATE OWNERS OF
THE TIMBER.  FOR ALL THAT APPEARS, GENERAL BOX WAS PREPARED TO REMOVE
THE TIMBER WITHOUT ADDITIONAL EXPENSE OR DELAY TO THE UNITED STATES. 

THE REQUIREMENT OF NOTICE IS DEEPLY ENGRAINED IN OUR SYSTEM OF
JURISPRUDENCE.  MULLANE V. CENTRAL HANOVER BANK, 339 U.S. 306; COVEY V.
TOWN OF SOMERS, DECIDED THIS DAY, ANTE, P. 141.  THE TAKING OF PROPERTY
WITHOUT NOTICE WHERE NOTICE CAN REASONABLY BE GIVEN, AND WITH THE
RESULT THAT THE OWNER IS DEPRIVED OF THE CHANCE TO SALVAGE THE
PROPERTY, IS SHEER CONFISCATION. 

FN1  THE TIMBER WHICH WAS DESTROYED WAS ON TWO TRACTS OF LAND.  IN
1946 PETITIONER PURCHASED THE ENTIRE FEE OF ONE TRACT FOR $30,000 AND
RESOLD IT FOR $15,000 TWO MONTHS LATER, RESERVING THE TIMBER RIGHTS FOR
20 YEARS.  IN 1947 PETITIONER PURCHASED THE TIMBER RIGHTS ON THE SECOND
TRACT FOR A PERIOD OF 10 YEARS, PAYING $36,000 FOR THESE RIGHTS.  THE
TRIAL JUDGE FOUND THAT THE TOTAL VALUE OF THE TIMBER DESTROYED WAS
$10,801, AND HE ENTERED A JUDGMENT FOR THAT AMOUNT PLUS INTEREST. 

FN2  NONE OF THE JUDGES EITHER OF THE CIRCUIT COURT OR OF THIS COURT
WHO VOTED TO REVERSE JUDGE DAWKINS IS FROM THE LOUISIANA BAR. 

FN3  NO LOUISIANA CASES HAVE BEEN FOUND IN WHICH NOTICE WAS NOT GIVEN
IN TIME TO ALLOW PROPERTY TO BE SALVAGED FROM THE BATTURE.  IN BOARD OF
LEVEE COMMISSIONERS V. KELLY, 225 LA. 411, 73 SO. 2D 299, 30 DAYS
NOTICE WAS GIVEN TO BATTURE DWELLERS TO REMOVE THEIR STRUCTURES AND
POSSESSIONS.  AND SEE BOARD OF COMMISSIONERS V. FRANKLIN, 219 LA. 859,
863-864, 54 SO. 2D 125, 127-128; BOARD OF COMMISSIONERS V. TROUILLE,
212 LA. 152, 157-158, 31 SO. 2D 700, 701-702; PEART V. MEEKER, 45 LA.
ANN. 421, 424, 12 SO. 490, 491, IN EACH OF WHICH NOTICE WAS GIVEN. 

IN THE PRESENT CASE, WRITTEN NOTICE WAS SENT TO THE OWNERS AFTER THE
CLEARING IN QUESTION WAS COMPLETED.  IN THIS NOTICE, THE OWNERS WERE
WARNED THAT WORK WOULD BEGIN ON ANOTHER LEVEE.  THE LETTER-NOTICE SAID,
"WE RESPECTFULLY REQUEST THAT ANY BUILDINGS, TIMBER OR OTHER OBSTACLES
WHICH MIGHT BE WITHIN THE RIGHTS-OF-WAY BE REMOVED PRIOR TO THE TIME
THAT THE CONTRACTOR BEGINS WORK." 

THE COURT QUOTES FROM DICKSON V. BOARD OF COMM'RS, 210 LA. 121, 26
SO. 2D 474, TO THE EFFECT THAT THE STATE MAY "APPROPRIATE SUCH LAND
...  AND TALK LATER."  BUT THE DICKSON CASE INVOLVED CONSEQUENTIAL
DAMAGES TO RIPARIAN LAND RESULTING FROM A CHANGE IN A RIVER CHANNEL,
NOT A TAKING OF LAND OR OTHER PROPERTY. 
..END :














HATAHLEY V. UNITED STATES 351 U.S. 173 


NO. 231.  ARGUED MARCH 26-27, 1956.  - DECIDED MAY 7, 1956.  - 220 F.2D
666, REVERSED AND REMANDED. 


PETITIONERS, NAVAJO INDIANS LIVING IN SOUTHEASTERN UTAH, SUED UNDER
THE FEDERAL TORT CLAIMS ACT TO RECOVER FOR THE CONFISCATION AND
DESTRUCTION BY FEDERAL AGENTS OF THEIR HORSES, WHICH WERE GRAZING ON
PUBLIC LANDS OF THE UNITED STATES.  THE GOVERNMENT DEFENDED ON THE
GROUND THAT THE FEDERAL AGENTS WERE ACTING PURSUANT TO THE UTAH
ABANDONED HORSE STATUTE.  THE TRIAL COURT AWARDED PETITIONERS JOINTLY A
LUMP-SUM JUDGMENT FOR $100,000 AND ENJOINED THE GOVERNMENT AND ITS
AGENTS FROM FURTHER INTERFERENCE WITH PETITIONERS.  HELD:  ON THE
RECORD IN THIS CASE, PETITIONERS ARE ENTITLED TO A JUDGMENT FOR
DAMAGES, WHICH MUST BE APPORTIONED AMONG THEM; BUT THEY ARE NOT
ENTITLED TO AN INJUNCTION.  PP.  174-182. 

(A)  THE TRIAL WAS NOT CONDUCTED SO IMPROPERLY AS TO VITIATE THE
TRIAL COURT'S FINDINGS OF FACT.  P. 177, NOTE 3. 

(B)  UNDER THE TAYLOR GRAZING ACT AND THE FEDERAL RANGE CODE ISSUED
THEREUNDER, GOVERNMENT AGENTS MAY INVOKE LOCAL IMPOUNDMENT LAWS ONLY
AFTER COMPLYING WITH SEC. 161.11(A) AND (B) OF THE FEDERAL RANGE CODE. 
SINCE THE FEDERAL AGENTS DID NOT GIVE PETITIONERS THE WRITTEN NOTICE
REQUIRED BY THE FEDERAL RANGE CODE, THERE WAS NOT SUCH COMPLIANCE HERE,
AND THEY ACTED WITHOUT STATUTORY AUTHORIZATION.  PP. 177-180. 

(C)  IN ATTEMPTING TO ENFORCE A FEDERAL STATUTE WHICH THEY
ADMINISTER, THE FEDERAL AGENTS WERE ACTING WITHIN THE SCOPE OF THEIR
EMPLOYMENT, AND THE GOVERNMENT IS LIABLE UNDER THE FEDERAL TORT CLAIMS
ACT FOR THEIR WRONGFUL AND TORTIOUS ACTS.  PP. 180-181. 

(D)  THE EXCEPTIONS SET FORTH IN 28 U.S.C. SEC. 2680 DO NOT BAR
RECOVERY, BECAUSE THE FEDERAL AGENTS WERE NOT "EXERCISING DUE CARE" AND
WERE NOT PERFORMING A "DISCRETIONARY FUNCTION OR DUTY" WITHIN THE
MEANING OF THAT SECTION.  P. 181. 

(E)  UNDER THE FEDERAL TORT CLAIMS ACT, ANY FINDINGS OF DAMAGES MUST
BE MADE WITH SUFFICIENT PARTICULARITY SO THAT THEY MAY BE REVIEWED. 
THE FINDINGS IN THIS CASE AND THE AWARD OF DAMAGES IN A LUMP SUM TO
PETITIONERS JOINTLY DID NOT MEET THIS REQUIREMENT, AND THE CASE MUST BE
REMANDED TO THE DISTRICT COURT FOR APPROPRIATE FINDINGS IN THIS
REGARD.  P. 182. 

(F)  THE DISTRICT COURT HAD NO POWER TO ENJOIN THE UNITED STATES OR
ITS INDIVIDUAL AGENTS OVER WHOM THE COURT NEVER ACQUIRED PERSONAL
JURISDICTION.  P. 182. 

HATAHLEY ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, EIGHT FAMILIES OF NAVAJO INDIANS, SEEK DAMAGES UNDER THE
FEDERAL TORT CLAIMS ACT FOR THE DESTRUCTION OF THEIR HORSES BY AGENTS
OF THE FEDERAL GOVERNMENT.  THE DISTRICT COURT ALLOWED DAMAGES OF
$100,000 AND ENJOINED THE GOVERNMENT AND ITS AGENTS FROM FURTHER
INTERFERENCE WITH PETITIONERS.  THE COURT OF APPEALS FOR THE TENTH
CIRCUIT REVERSED, 220 F.2D 666, ON THE GROUND THAT THE UTAH ABANDONED
HORSE STATUTE, UTAH CODE ANN., 1953, 47-2, WAS PROPERLY INVOKED BY THE
GOVERNMENT AGENTS.  WE DO NOT AGREE WITH THE COURT OF APPEALS. 

PETITIONERS ARE WARDS OF THE GOVERNMENT.  THEY HAVE LIVED FROM TIME
IMMEMORIAL IN STONE AND TIMBER HOGANS ON PUBLIC LAND IN SAN JUAN
COUNTY, UTAH.  THIS BLEAK AREA IN THE SOUTHEASTERN CORNER OF THE STATE
IS DIRECTLY NORTH OF THE NAVAJO INDIAN RESERVATION.  WHILE SOME INDIAN
FAMILIES FROM THE RESERVATION COME INTO THE AREA TO GRAZE THEIR
LIVESTOCK, PETITIONERS CLAIM TO HAVE ALWAYS LIVED THERE THE YEAR
ROUND.  THEY ARE HERDSMEN AND FOR GENERATIONS THEY HAVE GRAZED THEIR
LIVESTOCK ON THIS LAND.  THEY ARE A SIMPLE AND PRIMITIVE PEOPLE.  THEIR
LIVING IS DERIVED ENTIRELY FROM THEIR ANIMALS, FROM THE LITTLE CORN
THEY ARE ABLE TO GROW IN FAMILY PLOTS, AND THE WILD GAME AND PINE NUTS
THAT THE LAND ITSELF AFFORDS.  THE DISTRICT COURT FOUND THAT HORSES, AS
PETITIONERS' BEASTS OF BURDEN AND ONLY MEANS OF TRANSPORTATION, WERE
ESSENTIAL TO THEIR EXISTENCE.  (FN1) 

IN 1934 THE GOVERNMENT ENACTED THE TAYLOR GRAZING ACT, 48 STAT. 1269,
43 U.S.C. SEC.  315, WHICH PROVIDED FOR THE REGULATION AND USE OF THESE
PUBLIC LANDS.  GRAZING PERMITS WERE ISSUED TO WHITE LIVESTOCK
OPERATORS, AND FOR A NUMBER OF YEARS THESE PERMITTEES GRAZED THEIR
LIVESTOCK IN COMMON WITH PETITIONERS, WHO CONTINUED IN PEACEABLE
OCCUPATION AND USE OF THE LAND THEY CLAIMED AS THEIR ANCESTRAL HOME. 
LIMITED FORAGE MADE DISPUTES BETWEEN THE STOCKMEN AND THE INDIANS
INEVITABLE, AND ABOUT 1950 BOTH THE GOVERNMENT AND THE WHITE LIVESTOCK
OPERATORS FILED SUITS TO REMOVE THE INDIANS FROM THIS LAND.  (FN2)  IN
ADDITION TO LEGAL PROCEEDINGS, ANOTHER METHOD WAS EMPLOYED BY THE
GOVERNMENT AGENTS.  BEGINNING IN SEPTEMBER 1952 AND CONTINUING UNTIL
SOMETIME AFTER THE PRESENT SUIT WAS FILED IN THE DISTRICT COURT, THE
DEPARTMENT OF INTERIOR'S RANGE MANAGER VIGOROUSLY PROSECUTED A CAMPAIGN
TO ROUND UP AND DESTROY PETITIONERS' HORSES.  THIS ACTION WAS TAKEN
PURSUANT TO THE UTAH ABANDONED HORSE STATUTE, UTAH CODE ANN., 1953, 47
2, WHICH PROVIDES THAT THE BOARD OF COUNTY COMMISSIONERS MAY AUTHORIZE
THE ELIMINATION OF "ABANDONED" HORSES ON THE OPEN RANGE.  AN
"ABANDONED" HORSE IS DEFINED AS ONE RUNNING AT LARGE ON THE OPEN RANGE
WHICH IS EITHER NOT BRANDED OR, IF BRANDED, ONE ON WHICH THE TAX FOR
THE PRECEDING YEAR HAS NOT BEEN PAID.  DURING THE ROUNDUP A TOTAL OF
115 HORSES AND 38 BURROS BELONGING TO PETITIONERS WERE TAKEN AND SOLD
OR DESTROYED.  SOME HORSES WERE SOLD LOCALLY.  SOME WERE SHOT AND THEIR
CARCASSES LEFT ON THE RANGE.  MOST OF THE ANIMALS, HOWEVER, WERE
TRUCKED SOME 350 MILES AWAY TO PROVO, UTAH, WHERE THEY WERE SOLD TO A
HORSE-MEAT PLANT OR A GLUE FACTORY.  THE TOTAL AMOUNT DERIVED FROM SUCH
SALES, ABOUT $1,700, HAS BEEN RETAINED BY THE DISTRICT ADVISORY BOARD
COMPOSED OF LOCAL STOCKMEN.  NO PART OF IT HAS BEEN PAID OR OFFERED TO
PETITIONERS. 

THERE IS CONSIDERABLE EVIDENCE IN THE RECORD TO SHOW THAT THE UTAH
ABANDONED HORSE STATUTE WAS APPLIED DISCRIMINATORILY AGAINST THE
INDIANS.  IN ONE INSTANCE THE ASSISTANT RANGE MANAGER WATCHED FROM A
BLUFF WHILE PETITIONER HOSTEEN SAKEZZIE RELEASED HIS HORSES FROM THEIR
CORRAL.  LATER, A SHORT DISTANCE AWAY, THE SAME GOVERNMENT AGENT
SUPERVISED A ROUNDUP OF THESE HORSES AND DROVE THEM 35 MILES THROUGH
THE NIGHT TO ANOTHER CORRAL FROM WHICH THEY WERE LOADED INTO TRUCKS FOR
THE HORSEMEAT PLANT.  SAKEZZIE AND THREE OTHER INDIANS TRAILED THE
HORSES TO THE ENTRUCKING POINT BUT WERE NOT ALLOWED TO RECLAIM THEM. 
ON ANOTHER OCCASION FIVE HORSES TAKEN DURING THE ROUNDUP WHICH BELONGED
TO WHITE STOCKMEN WERE RETURNED TO THEIR OWNERS ON THE PAYMENT OF A
NOMINAL $2.50 A HEAD, BUT PETITIONER LITTLE WAGON WAS TOLD THAT TO
RECLAIM HIS HORSES THE CHARGE WOULD BE $60 A HEAD, AN AMOUNT KNOWN TO
BE FAR ABOVE HIS MEANS.  FOR THE MOST PART, THESE AND OTHER FACTS FOUND
BY THE DISTRICT COURT WERE UNCHALLENGED IN THE COURT OF APPEALS AND ARE
UNCHALLENGED HERE.  (FN3) 

THE COURT OF APPEALS DID NOT REACH THE QUESTION OF LIABILITY UNDER
THE FEDERAL TORT CLAIMS ACT, SINCE IT CONCLUDED THAT THE GOVERNMENT
AGENTS' ACTIONS WERE AUTHORIZED BY THE UTAH ABANDONED HORSE STATUTE. 
WE CANNOT DISPOSE OF THIS CASE SO EASILY. 

THE TAYLOR GRAZING ACT SEEKS TO PROVIDE THE MOST BENEFICIAL USE OF
THE PUBLIC RANGE AND TO PROTECT GRAZING RIGHTS IN THE DISTRICTS IT
CREATES.  CHOURNOS V. UNITED STATES, 193 F.2D 321.  SECTION 2 OF THE
ACT, 48 STAT. 1270, 43 U.S.C. SEC. 315A, PROVIDES THAT THE SECRETARY OF
THE INTERIOR SHALL "MAKE SUCH RULES AND REGULATIONS  ...  AND DO ANY
AND ALL THINGS NECESSARY TO ACCOMPLISH THE PURPOSES OF THIS ACT." 
PURSUANT TO THIS AUTHORIZATION THE SECRETARY HAS ISSUED THE FEDERAL
RANGE CODE, 43 CFR SEC. 161.1 ET SEQ. UNAUTHORIZED GRAZING ON THE
FEDERAL RANGE AND THE REMOVAL OF TRESPASSING LIVESTOCK IS EXPRESSLY
PROVIDED FOR BY SEC. 161.11(B) OF THIS CODE: 

"(B)  UNLAWFUL GRAZING ON FEDERAL RANGE; REMOVAL OF LIVESTOCK;
IMPOUNDMENT.  WHENEVER THE CHARGE CONSISTS OF UNLAWFULLY GRAZING
LIVESTOCK ON THE FEDERAL RANGE, THE NOTICE SERVED ON THE ALLEGED
VIOLATOR  ...  WILL ORDER THE ALLEGED VIOLATOR TO REMOVE THE LIVESTOCK
OR TO CAUSE THEM TO BE REMOVED IMMEDIATELY OR WITHIN SUCH REASONABLE
TIME AS MAY BE SPECIFIED.  IF THE ALLEGED VIOLATOR FAILS TO COMPLY WITH
THE NOTICE THE RANGE MANAGER MAY PROCEED TO EXERCISE THE PROPRIETARY
RIGHT OF THE UNITED STATES IN THE FEDERAL RANGE, UNDER LOCAL
IMPOUNDMENT LAW AND PROCEDURE, IF PRACTICABLE; OTHERWISE HE MAY REFER
THE MATTER THROUGH THE USUAL CHANNELS FOR APPROPRIATE LEGAL ACTION BY
THE UNITED STATES AGAINST THE VIOLATOR." 

WHENEVER THE CHARGE CONSISTS OF UNLAWFULLY GRAZING LIVESTOCK, THIS
(FN4) TOGETHER WITH AN ORDER TO REMOVE THE LIVESTOCK, BE SERVED ON THE
ALLEGED VIOLATOR.  ONLY "IF THE ALLEGED VIOLATOR FAILS TO COMPLY WITH
THE NOTICE" MAY THE RANGE MANAGER PROCEED UNDER LOCAL IMPOUNDMENT LAW
AND PROCEDURE.  IT IS CLEAR THAT BOTH THE WRITTEN NOTICE AND FAILURE TO
COMPLY ARE EXPRESS CONDITIONS PRECEDENT TO THE EMPLOYMENT OF LOCAL
PROCEDURES.  THE CODE IS, OF COURSE, THE LAW OF THE RANGE, AND THE
ACTIVITIES OF FEDERAL AGENTS ARE CONTROLLED BY ITS PROVISIONS.  (FN5)
THEY ARE REQUIRED TO FOLLOW THE PROCEDURES THERE ESTABLISHED. 

THE COURT OF APPEALS HELD THAT THERE WAS NO INCONSISTENCY BETWEEN THE
FEDERAL REGULATION AND THE STATE STATUTE BECAUSE THE REGULATION
PERTAINED TO INDIVIDUAL OWNERS WHILE THE STATUTE WAS AIMED AT
"ABANDONED" HORSES RUNNING LOOSE ON THE RANGE.  WE CANNOT AGREE.  AS WE
READ IT, THE UTAH STATUTE IS DIRECTED NOT TO HORSES ABANDONED IN THE
SENSE THAT THEY ARE OWNERLESS, OR THAT THEIR OWNERS CANNOT BE LOCATED,
BUT RATHER TO HORSES CONSIDERED "ABANDONED" UNDER AN EXPRESS STATUTORY
DEFINITION.  AS APPLIED TO HORSES "AT LARGE UPON THE OPEN RANGE," THIS
DEFINITION DEPENDS ONLY ON BRANDING AND PAYMENT OF PRIOR TAX ASSESSMENT
WITHOUT ANY CONSIDERATION OF WHETHER SUCH OWNER IS KNOWN OR CAN BE
LOCATED.  AS THE COURT OF APPEALS ITSELF RECOGNIZED:  "THE DICTIONARY
DEFINITION OF THE TERM 'ABANDONED' HAS NO APPLICATION."  220 F.2D, AT
672.  FURTHERMORE, THE RECORD IS REPLETE WITH EVIDENCE THAT IN THIS
CASE THE GOVERNMENT AGENTS ACTUALLY DID KNOW THAT THE HORSES BELONGED
TO PETITIONERS AND HAD NOT BEEN ABANDONED.  THE DISTRICT COURT FOUND
THAT, "SAID AGENTS KNEW BEYOND ANY POSSIBLE DOUBT TO WHOM SAID HORSES
BELONGED"; THAT "THE SAID AGENTS AND EMPLOYEES OF DEFENDANT KNEW THESE
BRANDS TO BE THE BRANDS USED BY PLAINTIFFS AS WELL AS THEY KNEW THAT
THE HORSES BELONGED TO PLAINTIFFS"; AND CONCLUDED THAT THE HORSES "WERE
USED DAILY IN THE PERFORMANCE OF THE WORK OF THEIR OWNERS, THE
PLAINTIFFS, AND THIS WAS WELL KNOWN BY DEFENDANT'S SAID AGENTS AND
EMPLOYEES."  IN THE FACE OF THESE FINDINGS, NOT DISTURBED BY THE COURT
OF APPEALS, IT CANNOT BE CONTENDED THAT THE GOVERNMENT AGENTS WERE
UNABLE TO COMPLY WITH THE SPECIFIC PROVISION FOR NOTICE WHICH REGULATED
THEIR ACTIONS.  NOR HAS THE GOVERNMENT CONTENDED THAT THERE WAS AN
ATTEMPT AT ANY TIME TO COMPLY WITH THE NOTICE PROVISIONS OF THE FEDERAL
RANGE CODE. 

FOR THESE REASONS WE HOLD THAT THE UTAH ABANDONED HORSE STATUTE WAS
NOT PROPERLY INVOKED.  THE CIRCUMSTANCES OF THIS CASE WERE SPECIFICALLY
PROVIDED FOR BY SEC. 161.11(B) OF THE FEDERAL RANGE CODE, AND THE
GOVERNMENT AGENTS FAILED TO COMPLY WITH THE TERMS OF THAT SECTION
BECAUSE THE REQUISITE NOTICE WAS NOT GIVEN. 

BUT, HAVING CONCLUDED THAT THERE WAS NO STATUTORY AUTHORITY, WE ARE
FACED WITH THE QUESTION WHETHER THE GOVERNMENT IS LIABLE UNDER THE
FEDERAL TORT CLAIMS ACT FOR WRONGFUL AND TORTIOUS ACTS OF ITS EMPLOYEES
COMMITTED IN AN ATTEMPT TO ENFORCE A FEDERAL STATUTE WHICH THEY
ADMINISTER.  WE BELIEVE THERE IS SUCH LIABILITY IN THE CIRCUMSTANCES OF
THIS CASE. 

GOVERNMENT FOR "LOSS OF PROPERTY  ...  CAUSED BY THE NEGLIGENT OR
WRONGFUL ACT  ...  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  ...  OCCURRED." 
IT IS CLEAR THAT THE FEDERAL AGENTS HERE WERE ACTING WITHIN THE SCOPE
OF THEIR EMPLOYMENT UNDER BOTH STATE AND FEDERAL LAW.  UNDER THE LAW OF
UTAH AN EMPLOYER IS LIABLE TO THIRD PERSONS FOR THE WILLFUL TORTS OF
HIS EMPLOYEES IF THE ACTS ARE COMMITTED IN FURTHERANCE OF THE
EMPLOYER'S INTERESTS OR IF THE USE OF FORCE COULD HAVE BEEN
CONTEMPLATED IN THE EMPLOYMENT.  CF. BARNEY V. JEWEL TEA CO., 104 UTAH
292, 139 P.2D 878.  BOTH OF THESE CONDITIONS OBTAINED HERE.  THE
FEDERAL AGENTS WERE ATTEMPTING TO ENFORCE THE FEDERAL RANGE LAW, AND
SUCH ENFORCEMENT MUST CONTEMPLATE AT LEAST THE FORCE USED IN REMOVAL OF
STOCK FROM THE RANGE.  THE FACT THAT THE AGENTS DID NOT HAVE ACTUAL
AUTHORITY FOR THE PROCEDURE THEY EMPLOYED DOES NOT AFFECT LIABILITY. 
THERE IS AN AREA, ALBEIT A NARROW ONE, IN WHICH A GOVERNMENT AGENT,
LIKE A PRIVATE AGENT, CAN ACT BEYOND HIS ACTUAL AUTHORITY AND YET
WITHIN THE SCOPE OF HIS EMPLOYMENT.  WE NOTE ALSO THAT SEC. 1346(B)
PROVIDES FOR LIABILITY FOR "WRONGFUL" AS WELL AS "NEGLIGENT" ACTS.  IN
AN EARLIER CASE THE COURT HAS POINTED OUT THAT THE ADDITION OF THIS
WORD WAS INTENDED TO INCLUDE SITUATIONS LIKE THIS INVOLVING
"'TRESPASSES' WHICH MIGHT NOT BE CONSIDERED STRICTLY NEGLIGENT." 
DALEHITE V. UNITED STATES, 346 U.S. 15, 45. 

NOR DOES 28 U.S.C. SEC. 2680 BAR LIABILITY HERE.  THIS SECTION
PROVIDES THAT: 

"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." 

THE FIRST PORTION OF SECTION (A) CANNOT APPLY HERE, SINCE THE
GOVERNMENT AGENTS WERE NOT EXERCISING DUE CARE IN THEIR ENFORCEMENT OF
THE FEDERAL LAW.  "DUE CARE" IMPLIES AT LEAST SOME MINIMAL CONCERN FOR
THE RIGHTS OF OTHERS.  HERE, THE AGENTS PROCEEDED WITH COMPLETE
DISREGARD FOR THE PROPERTY RIGHTS OF THE PETITIONERS.  NOR CAN THE
SECOND PORTION OF (A) EXEMPT THE GOVERNMENT FROM LIABILITY.  WE ARE
HERE NOT CONCERNED WITH ANY PROBLEM OF A "DISCRETIONARY FUNCTION" UNDER
THE ACT, SEE DALEHITE V. UNITED STATES, SUPRA.  THESE ACTS WERE
WRONGFUL TRESPASSES NOT INVOLVING DISCRETION ON THE PART OF THE AGENTS,
AND THEY DO GIVE RISE TO A CLAIM COMPENSABLE UNDER THE FEDERAL TORT
CLAIMS ACT. 

THE DISTRICT COURT AWARDED DAMAGES IN THE LUMP SUM OF $100,000, THE
AMOUNT SOUGHT BY PETITIONERS JOINTLY.  APPARENTLY THIS AWARD WAS BASED
ON THE VALUE OF THE HORSES, CONSEQUENTIAL DAMAGES FOR DEPRIVATION OF
USE AND FOR "MENTAL PAIN AND SUFFERING."  UNDER THE FEDERAL TORT CLAIMS
ACT, DAMAGES ARE DETERMINED BY THE LAW OF THE STATE WHERE THE TORTIOUS
ACT WAS COMMITTED, 28 U.S.C. SEC. 1346(B), SUBJECT TO THE LIMITATIONS
THAT THE UNITED STATES SHALL NOT BE LIABLE FOR "INTEREST PRIOR TO
JUDGMENT OR FOR PUNITIVE DAMAGES," 28 U.S.C. SEC. 2674.  BUT IT IS
NECESSARY IN ANY CASE THAT THE FINDINGS OF DAMAGES BE MADE WITH
SUFFICIENT PARTICULARITY SO THAT THEY MAY BE REVIEWED.  HERE THE
DISTRICT COURT MERELY AWARDED THE AMOUNT PRAYED FOR IN THE COMPLAINT. 
THERE WAS NO ATTEMPT TO ALLOT ANY PARTICULAR SUM TO ANY OF THE 30
PLAINTIFFS, WHO OWNED VARYING NUMBERS OF HORSES AND BURROS.  THERE CAN
BE NO APPORTIONMENT OF THE AWARD AMONG THE PETITIONERS UNLESS IT BE
ASSUMED THAT THE HORSES WERE VALUED EQUALLY, THE BURROS EQUALLY, AND
SOME ASSUMPTION IS MADE AS TO THE CONSEQUENTIAL DAMAGES AND PAIN AND
SUFFERING OF EACH PETITIONER.  THESE ASSUMPTIONS CANNOT BE MADE IN THE
ABSENCE OF PERTINENT FINDINGS, AND THE FINDINGS HERE ARE TOTALLY
INADEQUATE FOR REVIEW.  THE CASE MUST BE REMANDED TO THE DISTRICT COURT
FOR THE APPROPRIATE FINDINGS IN THIS REGARD.    SINCE THE DISTRICT
COURT DID NOT POSSESS THE POWER TO ENJOIN THE UNITED STATES, NEITHER
CAN IT ENJOIN THE INDIVIDUAL AGENTS OF THE UNITED STATES OVER WHOM IT
NEVER ACQUIRED PERSONAL JURISDICTION.   THAT PART OF THE COURT OF
APPEALS JUDGMENT DISSOLVING THE INJUNCTION IS AFFIRMED.  THE REMAINDER
OF THE JUDGMENT IS REVERSED AND REMANDED TO THE DISTRICT COURT FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  FOR EXAMPLE, NO. 13 OF THE FINDINGS OF FACT MADE BY THE DISTRICT
COURT STATES: "WOOD IS THE ONLY FUEL AVAILABLE TO PLAINTIFFS AS A FUEL
FOR THEIR FIRES, AND IT IS NECESSARY AT CERTAIN TIMES TO TRAVEL BY
HORSE UP TO 15 OR 20 MILES TO DRAG OR HAUL WOOD TO THE CAMPS OR
HOGANS.  WATER IS ALSO SCARCE AND THIS MUST BE CARRIED BY HORSE AND
BURRO FOR DISTANCES UP TO 10 MILES FROM THE CAMPS.  TRIPS TO REACH THE
PINE NUTS AREAS OFTEN REQUIRE TRIPS BY HORSE FOR 150 MILES, AND TO
REACH SITES OF CERTAIN CEREMONIES AND OTHER FUNCTIONS AMONG THE NAVAJO
PEOPLE OFTEN REQUIRE PLAINTIFFS AND THEIR FAMILIES TO TRAVEL ON THEIR
HORSES FOR 150 MILES.  SEVENTY-FIVE MILE TRIPS ARE REQUIRED IN THEIR
HUNTING EXPEDITIONS WHICH CAN ONLY BE DONE ON HORSES.  THAT THE SAME
USE IS MADE OF BURROS AS OF HORSES BY PLAINTIFFS AND THE BURRO IS HELD
IN THE SAME ESTEEM BY THEM AS ARE HORSES." 

FN2  THE SUIT BY THE UNITED STATES WAS DISMISSED BY THE DISTRICT
COURT, 93 F. SUPP.  745.  THE COURT OF APPEALS REVERSED THE DISMISSAL
AND REINSTATED THE COMPLAINT, UNITED STATES V. HOSTEEN TSE-KESI, 191
F.2D 518.  THE SUIT WAS LATER DISMISSED BY THE DISTRICT COURT ON JUNE
27, 1953, FOR THE REASON THAT IT WAS MOOT BECAUSE THE INDIANS HAD MOVED
TO THE RESERVATION AND WERE NO LONGER ON THE PUBLIC LANDS.  THE SUIT
BROUGHT BY SEVERAL WHITE STOCKMEN IN A UTAH STATE COURT RESULTED IN AN
ORDER ENJOINING CERTAIN NAVAJO INDIANS, INCLUDING SOME OF THE
PETITIONERS, FROM TRESPASSING AND GRAZING LIVESTOCK ON THE LANDS IN
QUESTION.  YOUNG V. FELORNIA, 121 UTAH 646, 244 P.2D 862.  A PETITION
FOR CERTIORARI IN THIS SUIT WAS PENDING BEFORE THIS COURT AT THE TIME
THE ROUNDUP WAS STARTED.  CERTIORARI WAS SUBSEQUENTLY DENIED, 344 U.S.
886. 

FN3  WHILE THE GOVERNMENT DOES NOT CHALLENGE PARTICULAR FINDINGS, IT
DOES LEVEL A GENERAL CHARGE THAT THE TRIAL WAS CONDUCTED IN SUCH AN
ATMOSPHERE OF BIAS AND PREJUDICE THAT NO FACTUAL CONCLUSIONS OF THE
COURT SHOULD BE RELIED ON.  THE COURT OF APPEALS NOTED "THAT THE CASE
WAS TRIED IN AN ATMOSPHERE OF MAXIMUM EMOTION AND A MINIMUM OF JUDICIAL
IMPARTIALITY."  220 F.2D, AT 670.  AFTER ORAL ARGUMENT AND A THOROUGH
CONSIDERATION OF THE RECORD, HOWEVER, WE DO NOT FIND THAT THE TRIAL WAS
CONDUCTED SO IMPROPERLY AS TO VITIATE THESE FINDINGS.  SEE LABOR BOARD
V. DONNELLY CO., 330 U.S. 219, 236-237. 

FN4  "SEC.  161.11  PROCEDURE FOR ENFORCEMENT OF RULES AND
REGULATIONS: 

(A)  SERVICE OF NOTICE.  WHENEVER IT APPEARS THAT THERE HAS BEEN ANY
WILLFUL VIOLATION OF ANY PROVISION OF THE ACT OR OF THE FEDERAL RANGE
CODE FOR GRAZING DISTRICTS, THE RANGE MANAGER WILL CAUSE THE ALLEGED
VIOLATOR  ...  TO BE SERVED WITH A WRITTEN NOTICE, WHICH WILL SET FORTH
THE ACT OR ACTS CONSTITUTING SUCH VIOLATION AND IN WHICH REFERENCE WILL
BE MADE TO THE PROVISION OR PROVISIONS OF THE ACT OR THE FEDERAL RANGE
CODE FOR GRAZING DISTRICTS ALLEGED TO HAVE BEEN VIOLATED.  SUCH NOTICE
MAY BE SERVED IN PERSON OR BY REGISTERED MAIL AND THE AFFIDAVIT OF THE
PERSON MAKING PERSONAL SERVICE OR THE REGISTRY RECEIPT SHALL BE
PRESERVED." 

FN5  SECTION 16 OF THE TAYLOR GRAZING ACT, 48 STAT. 1275, 43 U.S.C.
SEC. 315N, RESERVES THE POWER OF THE STATES TO ENFORCE "STATUTES
ENACTED FOR POLICE REGULATION" ON THE PUBLIC RANGE.  SECTION 161.11(B)
OF THE RANGE CODE PROVIDES THE EXCLUSIVE PROCEDURE FOR THE INVOCATION
OF SUCH STATE STATUTES BY FEDERAL AGENTS. 
..END :


















UNITED STATES V. ZUCCA, ALIAS SARNI 351 U.S. 91 


NO. 213.  ARGUED JANUARY 24-25, 1956.  - DECIDED APRIL 30, 1956.  - 221
F.2D 805, AFFIRMED. 


1.  UNDER SEC. 340(A) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952,
THE FILING OF AN "AFFIDAVIT SHOWING GOOD CAUSE" IS A PREREQUISITE TO
THE MAINTENANCE OF A DENATURALIZATION PROCEEDING.  PP. 91-100. 

(A)  THIS CONCLUSION IS IN ACCORD WITH THE LANGUAGE OF THE STATUTE. 
PP. 94-96. 

(B)  IT IS ALSO IN ACCORD WITH THE LEGISLATIVE HISTORY OF THE
STATUTE, ITS CONTEMPORANEOUS ADMINISTRATIVE CONSTRUCTION, AND THE USUAL
ADMINISTRATIVE PRACTICE THEREUNDER.  PP. 96-98. 

(C)  THE FILING OF SUCH AN AFFIDAVIT IS NOT RENDERED UNNECESSARY
MERELY BECAUSE THE COMPLAINT ITSELF IS VERIFIED.  PP. 98-99. 

2.  SECTION 340(A) IS THE ONLY SECTION UNDER WHICH A UNITED STATES
ATTORNEY MAY INSTITUTE DENATURALIZATION PROCEEDINGS.  BINDCZYCK V.
FINUCANE, 342 U.S. 76.  PP. 95, 99. 

UNITED STATES V. ZUCCA, ALIAS SARNI. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS A DENATURALIZATION PROCEEDING UNDER SEC. 340(A) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952.  (FN1)  THE SOLE QUESTION IS
WHETHER SEC. 340(A) MAKES THE FILING OF THE "AFFIDAVIT SHOWING GOOD
CAUSE" A PREREQUISITE TO MAINTENANCE OF THE SUIT.  THE DISTRICT COURT
HELD THAT IT DOES AND ORDERED THE COMPLAINT DISMISSED UNLESS THE
GOVERNMENT FILED AN AFFIDAVIT SHOWING GOOD CAUSE WITHIN 60 DAYS.  AS
THIS WAS NOT DONE, THE COMPLAINT WAS DISMISSED WITHOUT PREJUDICE TO THE
GOVERNMENT'S RIGHT TO INSTITUTE AN ACTION TO DENATURALIZE THE
RESPONDENT UPON FILING THE AFFIDAVIT.  125 F. SUPP. 551.  ON APPEAL BY
THE GOVERNMENT THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED,
ADOPTING THE OPINION OF THE DISTRICT COURT.  221 F.2D 805.  WE GRANTED
CERTIORARI, 350 U.S. 817, BECAUSE OF AN ASSERTED CONFLICT WITH
DECISIONS OF THE SEVENTH (FN2) AND NINTH (FN3) CIRCUITS AND BECAUSE OF
THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE IMMIGRATION
AND NATURALIZATION LAWS. 

RESPONDENT ETTORE ZUCCA WAS NATURALIZED ON JANUARY 4, 1944.  IN 1954,
THE UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK,
PROCEEDING UNDER SEC. 340(A), FILED A VERIFIED COMPLAINT IN THE UNITED
STATES DISTRICT COURT IN HIS DISTRICT SEEKING REVOCATION OF
RESPONDENT'S NATURALIZATION ON THE GROUNDS OF ILLEGALITY, CONCEALMENT
OF MATERIAL FACTS, AND WILLFUL MISREPRESENTATION. 

THE COMPLAINT ALLEGED THAT RESPONDENT, AT HIS NATURALIZATION HEARING
AND IN HIS PETITION FOR NATURALIZATION, HAD FALSELY SWORN "THAT HE DID
NOT BELONG TO AND WAS NOT ASSOCIATED WITH ANY ORGANIZATION WHICH
TEACHES OR ADVOCATES THE OVERTHROW OF EXISTING GOVERNMENT IN THIS
COUNTRY  ... ," THAT IT WAS HIS "INTENTION IN GOOD FAITH TO BECOME A
CITIZEN OF THE UNITED STATES AND TO RENOUNCE ABSOLUTELY AND FOREVER ALL
ALLEGIANCE AND FIDELITY TO ANY FOREIGN POWERS  ...  ," AND THAT HE WAS
AND HAD BEEN "ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE
UNITED STATES AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE
UNITED STATES."  THIS WAS FOLLOWED BY A GENERAL ALLEGATION OF
MEMBERSHIP IN THE COMMUNIST PARTY AND "OTHER ORGANIZATIONS AFFILIATED
WITH OR CONTROLLED BY THE COMMUNIST PARTY OF THE UNITED STATES FROM
1925 TO 1947," AND EQUALLY GENERAL ALLEGATIONS THAT RESPONDENT PROCURED
HIS NATURALIZATION BY CONCEALMENT AND WILLFUL MISREPRESENTATION IN THAT
HE CONCEALED THE FACTS RELATING TO HIS MEMBERSHIP IN THE COMMUNIST
PARTY AND AFFILIATED ORGANIZATIONS AND OTHERWISE SWORE FALSELY AS TO
HIS INTENTIONS AND BELIEFS.  THE PLEADER CONCLUDED THAT "GOOD CAUSE
EXISTS FOR THE INSTITUTION OF THIS SUIT  ...  ."  THE COMPLAINT, NO
PART OF WHICH WAS ALLEGED ON INFORMATION AND BELIEF, WAS VERIFIED BY AN
ASSISTANT UNITED STATES ATTORNEY.  WHEN RESPONDENT SOUGHT TO TAKE
DEPOSITIONS OF THIS ATTORNEY, HE WAS MET WITH AN AFFIDAVIT IN
OPPOSITION DENYING PERSONAL KNOWLEDGE.  (FN4)  RESPONDENT THEN FILED
HIS MOTION TO DISMISS ON THE GROUND, INTER ALIA, THAT SEC. 340(A)
REQUIRED THE FILING OF AN AFFIDAVIT SHOWING GOOD CAUSE AND THAT THIS
REQUIREMENT HAD NOT BEEN COMPLIED WITH.  AS STATED ABOVE, THE MOTION TO
DISMISS WAS GRANTED ON THIS GROUND. 

THE GOVERNMENT ARGUES THAT A READING OF THE STATUTE AND ITS
LEGISLATIVE HISTORY LEADS TO THE CONCLUSION THAT THE FILING OF AN
"AFFIDAVIT SHOWING GOOD CAUSE" IS NOT A PREREQUISITE TO MAINTAINING
DENATURALIZATION PROCEEDINGS UNDER SEC. 340(A).  WE DO NOT AGREE. 

THE AFFIDAVIT PROVISION WITH WHICH WE ARE HERE CONCERNED FIRST
APPEARED IN SEC. 15 OF THE ACT OF JUNE 29, 1906.  (FN5)  WITHOUT
SUBSTANTIAL CHANGE, IT WAS CARRIED FORWARD IN THE LAWS OF 1940 (FN6)
AND 1952, (FN7) CURRENTLY READING AS FOLLOWS: 

"SEC. 340.  (A)  IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT
ATTORNEYS FOR THE RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD
CAUSE THEREFOR, TO INSTITUTE PROCEEDINGS IN ANY COURT SPECIFIED IN
SUBSECTION (A) OF SECTION 310 OF THIS TITLE IN THE JUDICIAL DISTRICT IN
WHICH THE NATURALIZED CITIZEN MAY RESIDE AT THE TIME OF BRINGING SUIT,
FOR THE PURPOSE OF REVOKING AND SETTING ASIDE THE ORDER ADMITTING SUCH
PERSON TO CITIZENSHIP AND CANCELING THE CERTIFICATE OF NATURALIZATION
ON THE GROUND THAT SUCH ORDER AND CERTIFICATE OF NATURALIZATION WERE
PROCURED BY CONCEALMENT OF A MATERIAL FACT OR BY WILLFUL
MISREPRESENTATION,  ...  ." 

WERE WE OBLIGED TO RELY SOLELY ON THE WORDING OF THE STATUTE, WE
WOULD HAVE NO DIFFICULTY IN REACHING THE CONCLUSION THAT THE FILING OF
THE AFFIDAVIT IS A PREREQUISITE TO MAINTAINING A DENATURALIZATION
SUIT.  THIS CONCLUSION IS NOT ALTERED BY A CONSIDERATION OF THE
GOVERNMENT'S HIGHLY SPECULATIVE SUGGESTIONS AS TO THE MEANING OF THE
LEGISLATIVE HISTORY.  ON THE CONTRARY, WE THINK THAT IT IS ENTIRELY
CONSISTENT WITH THE COURT'S STATEMENT IN BINDCZYCK V. FINUCANE, 342
U.S. 76, THAT CONGRESS ACTED "WITH A VIEW TO PROTECTING THE GOVERNMENT
AGAINST FRAUD WHILE SAFEGUARDING CITIZENSHIP FROM ABROGATION EXCEPT BY
A CLEARLY DEFINED PROCEDURE  ...  ."  ID., AT 83. 

THE NATURAL MEANING OF THE LANGUAGE USED IN SEC. 340(A) IS THAT
FILING OF THE AFFIDAVIT IS A PROCEDURAL PREREQUISITE TO MAINTENANCE OF
THE SUIT.  IN THE BINDCZYCK CASE, THIS COURT HELD THAT SEC. 338(A) OF
THE NATIONALITY ACT OF 1940, PREDECESSOR OF SEC. 340(A), SETS FORTH THE
EXCLUSIVE PROCEDURE FOR DENATURALIZATION.  (FN8)  DESPITE THAT
DECISION, THE GOVERNMENT WOULD HAVE US HOLD NOW THAT THE GRANT OF POWER
TO MAINTAIN DENATURALIZATION SUITS IS FOUND IN THE GENERAL DUTY OF
UNITED STATES ATTORNEYS TO PROSECUTE ALL CIVIL ACTIONS IN WHICH THE
UNITED STATES IS CONCERNED, (FN9) AND THAT SEC. 340(A) MERELY IMPOSES
THE "ADDITIONAL DUTY  ...  TO ACT, NOT ALONE ON THEIR OWN KNOWLEDGE AND
JUDGMENT, BUT ON THE BASIS OF AN AFFIDAVIT OF GOOD CAUSE FURNISHED BY
PRIVATE CITIZENS."  IN EFFECT THE GOVERNMENT ARGUES THAT THE AFFIDAVIT
IS REQUIRED ONLY WHEN THE PROCEEDING IS TO BE BROUGHT ON THE COMPLAINT
OF A PRIVATE CITIZEN.  WE NEED NOT DECIDE WHETHER A PRIVATE CITIZEN MAY
EVER FILE SUCH A COMPLAINT.  THE SHORT ANSWER IN THIS CASE IS THAT THE
GOVERNMENT LAID ITS COMPLAINT EXPRESSLY UNDER SEC. 340(A). 

WHILE ARGUING THAT THE WORDS OF SEC. 340 ARE WORDS OF LIMITATION ON
THE DISCRETION OF THE UNITED STATES ATTORNEY, THE GOVERNMENT APPARENTLY
CONCEDES THAT THE VENUE AND NOTICE PROVISIONS OF THE SECTION ARE
GENERALLY APPLICABLE TO DENATURALIZATION PROCEEDINGS.  ITS ARGUMENT
OVERLOOKS THE FACT THAT THE AFFIDAVIT AND VENUE PROVISIONS ARE IN THE
SAME SENTENCE.  IF THE AFFIDAVIT WERE REQUIRED ONLY WHEN THE UNITED
STATES ATTORNEY PROCEEDED ON THE COMPLAINT OF A PRIVATE CITIZEN, THEN
ONLY IN SUCH A CASE WOULD THE VENUE BE RESTRICTED TO THE DISTRICT OF
THE DEFENDANT'S RESIDENCE.  WE COULD ACCEPT SUCH A LIMITING
CONSTRUCTION OF THE STATUTE ONLY UPON A VERY CLEAR SHOWING THAT
CONGRESS MEANT SOMETHING OTHER THAN WHAT IT SAID. 

THE ORIGINAL ACT OF 1906 WAS THE CULMINATION OF MANY YEARS OF STUDY
BY CONGRESS AND A COMMISSION OF WHICH THE ATTORNEY GENERAL WAS A
LEADING SPIRIT AND HIS ASSISTANT THE CHAIRMAN.  SHORTLY AFTER ITS
ENACTMENT, THE SAME ATTORNEY GENERAL RENDERED AN OPINION TO THE
SECRETARY OF COMMERCE AND LABOR TO THE EFFECT THAT THE FILING OF AN
AFFIDAVIT WAS "NECESSARY TO GIVE A UNITED STATES ATTORNEY AUTHORITY TO
INSTITUTE PROCEEDINGS IN ANY COURT FOR THE CANCELLATION OF A
NATURALIZATION CERTIFICATE."  (FN10)  IN SUCH CIRCUMSTANCES, A
CONTEMPORANEOUS CONSTRUCTION OF A STATUTE BY THE OFFICER CHARGED WITH
ITS ENFORCEMENT IS ENTITLED TO GREAT WEIGHT.  FAWCUS MACHINE CO. V.
UNITED STATES, 282 U.S. 375, 378; NORWEGIAN NITROGEN PRODUCTS CO. V.
UNITED STATES, 288 U.S. 294, 315.  OVER A PERIOD OF YEARS, HOWEVER,
THERE HAS BEEN SOME CONFLICT AMONG THE CIRCUITS CONCERNING THE
AFFIDAVIT REQUIREMENT.  (FN11)  THE GOVERNMENT RELIES PARTICULARLY ON
OUR AFFIRMANCE OF THE DECISION OF THE COURT OF APPEALS FOR THE NINTH
CIRCUIT IN SCHWINN V. UNITED STATES, 311 U.S. 616.  THE COURT DECIDED
THAT CASE ON THE SOLE GROUND OF ILLEGAL PROCUREMENT.  ALTHOUGH THE
NECESSITY OF THE AFFIDAVIT WAS CONSIDERED BELOW IN VIEW OF THE
GOVERNMENT'S FAILURE TO OFFER PROOF IN SUPPORT OF ITS ALLEGATION THAT
AN AFFIDAVIT OF GOOD CAUSE HAD BEEN FURNISHED, THE QUESTION WAS NOT
PRESENTED TO THIS COURT.  (FN12) 

PRIOR TO THE DECISION IN THE SCHWINN CASE THE PRACTICE OF THE JUSTICE
DEPARTMENT SEEMS GENERALLY TO HAVE BEEN TO INSTITUTE DENATURALIZATION
PROCEEDINGS UPON AFFIDAVIT SHOWING GOOD CAUSE.  THE GOVERNMENT DOES NOT
NOW CONTEND THAT IT HAS ABANDONED THAT PRACTICE.  IT MERELY CLAIMS THE
RIGHT NOT TO DO SO WHEN IT CHOOSES, AS CLEARLY APPEARS FROM PORTIONS OF
A DEPARTMENT OF JUSTICE MEMORANDUM WHICH HAS BEEN BROUGHT TO THE
COURT'S ATTENTION.  (FN13)  WE ARE UNIMPRESSED BY THE REASONING OF THAT
MEMORANDUM.  WE THINK THAT THE PUBLIC INTEREST IS NOT SERVED BY TAKING
SUCH LIBERTIES WITH A SPECIFIC STATUTORY REQUIREMENT DESIGNED FOR THE
PROTECTION OF NATURALIZED CITIZENS.  AND WE FAIL TO SEE THAT THE
REQUIREMENT IMPOSES A BURDEN ON THE GOVERNMENT.  AT THIS TERM, IT HAS
BEEN REPRESENTED TO US THAT THE USUAL PRACTICE IS THAT, "IF SUFFICIENT
GROUNDS ARE SHOWN, AN 'AFFIDAVIT SHOWING GOOD CAUSE' (SEE SECTION
340(A) OF THE ACT  ...  ) IS PREPARED AND EXECUTED, AND IS FORWARDED AS
AN AID TO THE FORMAL JUDICIAL PROCEEDINGS  ...  ."  (FN14) 

LASTLY THE GOVERNMENT CONTENDS, AS AN ALTERNATE GROUND FOR REVERSAL,
THAT NO HARM IS DONE TO THE DEFENDANT BECAUSE THE COMPLAINT ITSELF IS
VERIFIED AND, THEREFORE, ACCOMPLISHES THE FUNCTION OF THE AFFIDAVIT. 
WITH THIS WE CANNOT AGREE.  THE COMPLAINT, UNDER MODERN PRACTICE, IS
REQUIRED MERELY TO ALLEGE ULTIMATE FACTS WHILE THE AFFIDAVIT MUST SET
FORTH EVIDENTIARY MATTERS SHOWING GOOD CAUSE FOR CANCELLATION OF
CITIZENSHIP.  (FN15) 

IN THE BINDCZYCK CASE, SUPRA, THE COURT SUMMED UP THE PURPOSE OF AND
APPROACH TO DENATURALIZATION PROCEEDINGS AS FOLLOWS: 

"WE CANNOT ESCAPE THE CONCLUSION THAT IN ITS DETAILED PROVISIONS FOR
REVOKING A NATURALIZATION BECAUSE OF FRAUD OR ILLEGAL PROCUREMENT NOT
APPEARING ON THE FACE OF THE RECORD, CONGRESS FORMULATED A SELF
CONTAINED, EXCLUSIVE PROCEDURE.  WITH A VIEW TO PROTECTING THE
GOVERNMENT AGAINST FRAUD WHILE SAFEGUARDING CITIZENSHIP FROM ABROGATION
EXCEPT BY A CLEARLY DEFINED PROCEDURE, CONGRESS INSISTED ON THE
DETAILED, EXPLICIT PROVISIONS OF SEC. 15. 

"  ...  IF CITIZENSHIP WAS GRANTED, IT WAS TO BE PROOF AGAINST
ATTACKS FOR FRAUD OR ILLEGAL PROCUREMENT BASED ON EVIDENCE OUTSIDE THE
RECORD, EXCEPT THROUGH THE PROCEEDINGS PRESCRIBED IN SEC. 15.  THE
CONGRESSIONAL SCHEME, PROVIDING CAREFULLY FOR THE REPRESENTATION OF THE
GOVERNMENT'S INTEREST BEFORE THE GRANT OF CITIZENSHIP AND A DETAILED,
SAFEGUARDED PROCEDURE FOR ATTACKING THE DECREE ON EVIDENCE OF FRAUD
OUTSIDE THE RECORD, COVERS THE WHOLE GROUND.  EVERY NATIONAL INTEREST
IS THEREBY PROTECTED."  342 U.S., AT 83, 84. 

THIS PROCEEDING WAS CONCEDEDLY BROUGHT UNDER SEC. 340(A).  WE HOLD
THAT THIS IS THE ONLY SECTION UNDER WHICH A UNITED STATES ATTORNEY MAY
INSTITUTE DENATURALIZATION PROCEEDINGS, AND THAT THE AFFIDAVIT SHOWING
GOOD CAUSE IS A PROCEDURAL PREREQUISITE TO THE MAINTENANCE OF
PROCEEDINGS THEREUNDER. 

THE MERE FILING OF A PROCEEDING FOR DENATURALIZATION RESULTS IN
SERIOUS CONSEQUENCES TO A DEFENDANT.  EVEN IF HIS CITIZENSHIP IS NOT
CANCELLED, HIS REPUTATION IS TARNISHED AND HIS STANDING IN THE
COMMUNITY DAMAGED.  CONGRESS RECOGNIZED THIS DANGER AND PROVIDED THAT A
PERSON, ONCE ADMITTED TO AMERICAN CITIZENSHIP, SHOULD NOT BE SUBJECT TO
LEGAL PROCEEDINGS TO DEFEND HIS CITIZENSHIP WITHOUT A PRELIMINARY
SHOWING OF GOOD CAUSE.  SUCH A SAFEGUARD MUST NOT BE LIGHTLY REGARDED. 
WE BELIEVE THAT, NOT ONLY IN SOME CASES BUT IN ALL CASES, THE DISTRICT
ATTORNEY MUST, AS A PREREQUISITE TO THE INITIATION OF SUCH PROCEEDINGS,
FILE AN AFFIDAVIT SHOWING GOOD CAUSE.  THE DISTRICT COURT BELOW
CORRECTLY DISMISSED THE PROCEEDINGS IN THIS CASE BECAUSE OF THE FAILURE
OF THE GOVERNMENT TO FILE THE REQUIRED AFFIDAVIT AND THE JUDGMENT OF
THE COURT OF APPEALS IS THEREFORE AFFIRMED. 

FN1  66 STAT. 163, 260, AS AMENDED, 68 STAT. 1232, 8 U.S.C. (SUPP.
II) SEC. 1451(A). 

FN2  UNITED STATES V. TUTEUR, 215 F.2D 415. 

FN3  SCHWINN V. UNITED STATES, 112 F.2D 74, AFFIRMED PER CURIAM, 311
U.S. 616. 

FN4  THE AFFIDAVIT READ AS FOLLOWS: 

"GEORGE C. MANTZOROS, BEING DULY SWORN, DEPOSES AND SAYS AS FOLLOWS: 

"THAT HE IS ONE OF THE ASSISTANT UNITED STATES ATTORNEYS ON THE STAFF
OF J. EDWARD LUMBARD, UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT
OF NEW YORK IN CHARGE OF THE ABOVE-ENTITLED CASE. 

"THAT THE ONLY KNOWLEDGE OR INFORMATION WHICH HE HAS IN THIS CASE HAS
BEEN OBTAINED THROUGH FILES TURNED OVER TO HIM FOR USE IN PREPARATION
OF THE COMPLAINT. 

"THAT HE HAS NO PERSONAL KNOWLEDGE OF ANY OF THE FACTS HEREIN AND IS
NOT A PROSPECTIVE WITNESS. 

"THAT ON INFORMATION AND BELIEF HIS SUPERIOR, THE SAID J. EDWARD
LUMBARD LIKEWISE HAS NO PERSONAL KNOWLEDGE OF ANY OF THE FACTS HEREIN
AND IS NOT A PROSPECTIVE WITNESS. 

"THAT HE HAS CAREFULLY REVIEWED THE FILES IN THIS CASE AND FINDS
NOTHING THEREIN WHICH WOULD INDICATE ANY SPECIAL OR UNUSUAL
CIRCUMSTANCES REQUIRING THE PRODUCTION OF THE DOCUMENTS REQUESTED BY
THE DEFENDANT IN HIS NOTICE TO TAKE DEPOSITIONS, DATED JULY 8, 1954. 
"THAT MANY OF THE DOCUMENTS IN SAID FILES ARE PRIVILEGED BECAUSE OF
THEIR CONFIDENTIAL NATURE."  R. 8. 

FN5  34 STAT. 596, 601. 

FN6  SECTION 338(A) OF THE NATIONALITY ACT OF 1940, 54 STAT. 1137,
1158. 

FN7  66 STAT. 163, 260, AS AMENDED, 68 STAT. 1232, 8 U.S.C. (SUPP.
II) SEC. 1451(A). 

FN8  THE SPECIFIC HOLDING, THAT SEC. 338(A) OF THE 1940 ACT OVERRODE
LOCAL RULES CONCERNING TIME LIMITATIONS UPON THE POWER OF STATE COURTS
TO REOPEN THEIR JUDGMENTS, WAS ABROGATED BY SEC. 340(J) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163, 262.  THE
UNDERLYING PHILOSOPHY OF BINDCZYCK REMAINS INTACT. 

FN9  28 U.S.C. SEC. 507(A)(2). 

FN10  LETTER OF ATTORNEY GENERAL BONAPARTE, MARCH 26, 1907
(UNPUBLISHED, NATIONAL ARCHIVES), CITED IN A CONTEMPORARY TREATISE BY A
RECOGNIZED AUTHORITY ON THE STATUTE.  VAN DYNE, LAW OF NATURALIZATION
(1907), 138.  THE LETTER IS REPRODUCED AT P. 50 OF THE BRIEF FOR THE
UNITED STATES. 

FN11  THE COURTS OF APPEALS FOR THE THIRD, FIFTH, AND DISTRICT OF
COLUMBIA CIRCUITS HAD TAKEN THE POSITION ADOPTED BY THE SECOND CIRCUIT
IN THIS CASE.  UNITED STATES V. RICHMOND, 17 F.2D 28; UNITED STATES V.
SALOMON, 231 F. 928; COHEN V. UNITED STATES, 38 APP. D.C. 123.  THE
SEVENTH AND NINTH CIRCUITS FAVORED THE CONTRARY POSITION.  UNITED
STATES V. TUTEUR, 215 F.2D 415; SCHWINN V. UNITED STATES, 112 F.2D 74,
AFFIRMED PER CURIAM, 311 U.S. 616; UNITED STATES V. KNIGHT, 291 F. 129
(U.S.D.C. MONT.), AFFIRMED 299 F. 571; UNITED STATES V. LELES, 227 F.
189. 

FN12  ON TWO PRIOR OCCASIONS THIS COURT HAS HAD OCCASION TO NOTICE
THE AFFIDAVIT PROVISION WITHOUT SUGGESTING THAT IT WAS NOT AN ESSENTIAL
PROCEDURAL STEP IN THE DENATURALIZATION PROCEEDING.  SEE JOHANNESSEN V.
UNITED STATES, 225 U.S. 227, 242; SCHNEIDERMAN V. UNITED STATES, 320
U.S. 118, 159, N. 54. 

FN13  "AS INDICATED BELOW IN 'IV.  PRE-TRIAL PROCEDURE,' THE
DEFENDANT CAN PROBABLY OBTAIN MOST OF THE GOVERNMENT'S EVIDENCE BY A
PROPER UTILIZATION OF THE METHODS OF DISCOVERY PROVIDED IN RULES 16,
33, AND 34.  IT, THEREFORE, MAY BE ADVISABLE AT THE OUTSET TO FURNISH
HIM WITH A REASONABLE AMOUNT OF THE GOVERNMENT'S EVIDENCE IN ORDER TO
REDUCE THE CHANCE OF THESE DISCOVERY RULES BEING EMPLOYED, AND THUS
AVOID THE ENSUING DELAY.  IF THIS IS DONE, IT WOULD SEEM THAT THE
AFFIDAVIT RATHER THAN THE COMPLAINT IS THE PROPER PLACE IN WHICH TO
RECITE EVIDENCE. 

"IN THE EVENT IT IS DECIDED IN A GIVEN CASE TO FURNISH THE DEFENDANT
WITH SOME OF THE GOVERNMENT'S EVIDENCE, IT IS RECOMMENDED THAT AN
AFFIDAVIT BE PREPARED AND SERVED WITH THE COMPLAINT AND THAT IN THE
AFFIDAVIT THERE BY RECITED BRIEFLY THE NATURE OF THE EVIDENCE TO BE
RELIED UPON.  THIS RECITATION OF EVIDENCE SHOULD BE OF A GENERAL NATURE
BUT SUFFICIENT TO REDUCE THE ORDINARY CHANCE OF THE DISCOVERY RULES
BEING EMPLOYED AND AT THE SAME TIME TO REDUCE THE LIKELIHOOD OF THE
GOVERNMENT HAVING TO OPPOSE A MOTION FOR A BILL OF PARTICULARS.  ON THE
OTHER HAND, IT SHOULD NOT BE SO COMPLETE AS TO PROVIDE THE DEFENDANT
WITH THE NAMES OF WITNESSES AND POSSIBLY CAN BE SO PHRASED AS NOT TO
DISCLOSE THEIR IDENTITY.  SIMILARLY, IT MAY BE DISADVANTAGEOUS TO MAKE
IT SO COMPLETE AS TO IDENTIFY SPECIFIC INSTRUMENTS OR WRITINGS, FOR
THIS MAY INCREASE THE LIKELIHOOD OF A DEMAND FOR THEIR PRODUCTION UNDER
RULE 34.  IT WOULD SEEM SUFFICIENT TO SET OUT THE GENERAL SUBSTANCE OR
TYPE OF STATEMENTS OR WRITINGS KNOWN TO HAVE BEEN MADE WITHOUT QUOTING
THEM.  IT WOULD ALSO SEEM PROPER TO AVER GENERALLY MEMBERSHIP AND
LEADERSHIP IN THE GERMAN-AMERICAN BUND OR OTHER UN-AMERICAN
ORGANIZATIONS, REFUSAL OF MILITARY SERVICE, GENERAL PROPAGANDA
ACTIVITIES, ETC. 

"IF IT IS BELIEVED UNDESIRABLE TO ATTACH AN AFFIDAVIT TO THE
COMPLAINT AND TO SERVE IT UPON THE DEFENDANT, AS DISCUSSED ABOVE, IN
THAT INSTANCE NO REFERENCE SHOULD BE MADE IN THE COMPLAINT TO AN
AFFIDAVIT HAVING BEEN PREPARED AND AS CONSTITUTING THE BASIS OF THE
ACTION."  CIRCULAR NO. 3663, DEPT. OF JUSTICE, SUPP. NO. 9, APRIL 6,
1943 (MIMEOGRAPHED), P. 87, PRINTED IN A SUPPLEMENTAL MEMORANDUM FILED
BY THE GOVERNMENT IN THIS CASE. 

FN14  BRIEF FOR THE UNITED STATES, UNITED STATES V. MINKER, 350 U.S.
179 (NO. 35, OCTOBER TERM, 1955), AT P. 34. 

FN15  UNITED STATES V. RICHMOND, 17 F.2D 28; UNITED STATES V.
SALOMON, 231 F. 928. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

THE COURT'S RULING TODAY SERIOUSLY OBSTRUCTS THE GOVERNMENT IN FILING
DENATURALIZATION PROCEEDINGS IN THIS TYPE OF CASE.  IT REVERSES A LONG
LINE OF CASES IN THE LOWER FEDERAL COURTS (FN1) AND DISREGARDS A
CONSISTENT ADMINISTRATIVE PRACTICE OF OVER THIRTY YEARS STANDING, A
PERIOD WHICH INCLUDES TWO RECODIFICATIONS OF THE IMMIGRATION LAWS. 
FURTHERMORE, THE IDENTICAL POINT ON WHICH THE CASE TODAY IS DECIDED WAS
PRESENT IN TWO EARLIER CASES WHERE IT APPARENTLY WAS NOT CONSIDERED
IMPORTANT ENOUGH TO BE PRESENTED TO THIS COURT.  (FN2) 

THE ONLY AUTHORITY FOR THE COURT'S ACTION IS AN UNPUBLISHED,
INFORMAL, AND SOMEWHAT AMBIGUOUS INTER-DEPARTMENTAL LETTER OF THE
ATTORNEY GENERAL WRITTEN IN 1907.  WHILE ANY ATTORNEY GENERAL MIGHT
WELL BE PROUD TO SEE HIS VIEWS GIVEN SUCH LASTING EFFECT, HE
UNDOUBTEDLY WOULD BE SURPRISED TO LEARN THAT THE AUTHORITY OF SUCH AN
INFORMAL STATEMENT COULD OVERRULE LATER COURT DECISIONS AND A THIRTY
YEAR, FIRMLY ESTABLISHED POSITION OF THE DEPARTMENT OF JUSTICE.  MANY
CASES WITNESS THE FACT THAT THE COURT HAS OFTEN GIVEN LITTLE OR NO
WEIGHT TO CAREFULLY DRAWN OPINIONS OF THE ATTORNEY GENERAL ON QUESTIONS
OF STATUTORY INTERPRETATION. 

BUT MY MAJOR OBJECTION TO THE DECISION TODAY IS THE EXTREME BURDEN
PLACED ON THE GOVERNMENT IN CASES SUCH AS THIS.  THE COURT CONSTRUES
SEC. 340(A) OF THE IMMIGRATION AND NATIONALITY ACT TO REQUIRE SOMETHING
MORE THAN WAS FILED IN THE PRESENT CASE.  THE COMPLAINT HERE WAS
VERIFIED; THE ASSISTANT UNITED STATES ATTORNEY SWORE THAT THE FACTS
ALLEGED IN THE COMPLAINT WERE "TRUE" AND "THAT THE SOURCES OF HIS
INFORMATION ...  ARE THE RECORDS WHICH ARE ON FILE IN HIS OFFICE." 
THUS THE COMPLAINT IN THIS CASE WAS SUPPORTED BY THE JURAT OF A NOTARY
PUBLIC AND THE SWORN STATEMENT OF AN ASSISTANT UNITED STATES ATTORNEY
WHO HELD OFFICE BY VIRTUE OF HIS OATH TO CARRY OUT HIS OFFICIAL DUTIES
FAIRLY AND IMPARTIALLY.  NO MORE WAS PRESENT IN SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118. 

THE COMPLAINT ALLEGED THAT ZUCCA HAD LIED IN HIS ALIEN REGISTRATION
STATEMENT IN 1940, AND IN HIS PRELIMINARY NATURALIZATION EXAMINATION
AND TESTIMONY BEFORE A NATURALIZATION EXAMINER IN 1952.  HE IS ALLEGED
TO HAVE STATED UNDER OATH THAT "HE DID NOT BELONG TO AND WAS NOT
ASSOCIATED WITH ANY ORGANIZATION WHICH TEACHES OR ADVOCATES THE
OVERTHROW OF EXISTING GOVERNMENT."  THE COMPLAINT THEN ALLEGES THAT
ZUCCA "WAS A MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES,
INCLUDING THE WORKERS COMMUNIST PARTY  ...  FROM 1925 TO 1947."  UNDER
SEC. 305 OF THE NATIONALITY ACT OF 1940, THE COMPLAINT CONTINUES,
ZUCCA'S NATURALIZATION WAS ILLEGAL. 

BUT THE MAJORITY DECLARES THAT THESE SWORN ALLEGATIONS ARE
INSUFFICIENT.  IT MAKES A VAGUE REFERENCE TO THE PLEADING OF "ULTIMATE
FACTS WHILE THE AFFIDAVIT MUST SET FORTH EVIDENTIARY MATTERS SHOWING
GOOD CAUSE FOR CANCELLATION OF CITIZENSHIP."  FROM THIS STATEMENT I CAN
DRAW ONLY ONE CONCLUSION.  AS RESPONDENT CONTENDS, "GOOD CAUSE" MEANS
"THAT THE GOVERNMENT MUST FURNISH THE COURT WITH SWORN STATEMENTS BY
PERSONS HAVING PERSONAL KNOWLEDGE OF THE FACTS  ...  CONGRESS COULD NOT
HAVE INTENDED THAT THE COURTS BE REQUIRED TO ACCEPT THE SECOND-HAND
STATEMENTS OF INVESTIGATORS  ...  ."  (FN3)  APPARENTLY NEITHER THE
UNITED STATES ATTORNEY NOR ANYONE IN THE IMMIGRATION SERVICE OR THE FBI
CAN MAKE SUCH AN AFFIDAVIT UNLESS HE HAS PERSONAL KNOWLEDGE OF THE
FACTS.  THIS WOULD LIMIT VERIFICATION BY THESE OFFICERS TO CASES BASED
ON PRIOR UNDISCLOSED CRIMINAL CONVICTIONS, ARRIVAL AGE WHERE
CONTROLLING, ETC. 

BUT IN PROCEEDINGS BASED SOLELY ON MEMBERSHIP IN THE COMMUNIST PARTY
SUBSTANTIALLY DIFFERENT CONDITIONS PREVAIL.  INVARIABLY, MEMBERSHIP CAN
BE PROVED ONLY FROM THE TESTIMONY OF OTHER MEMBERS CONCERNING
ATTENDANCE AT MEETINGS, PAYMENT OF DUES, ETC.  THERE ARE NO MEMBERSHIP
CARDS IN THE PARTY AND HAVE BEEN NONE FOR MORE THAN A DECADE.  IF THESE
EVIDENTIAL METHODS OF PROOF - THE TESTIMONY AND IDENTITY OF UNDERCOVER
AGENTS - MUST BE DISCLOSED IN AN AFFIDAVIT, THE GOVERNMENT MUST CHOOSE
BETWEEN FOREGOING DENATURALIZATION CASES AND DRYING UP ITS SOURCE OF
INFORMATION BEFORE THE PROCEEDING CAN BE BROUGHT.  IT IS COMMON
KNOWLEDGE AMONG LAW ENFORCEMENT OFFICERS THAT WITNESSES ARE AFFIDAVIT
SHY, PARTICULARLY IN CASES INVOLVING SUBVERSION.  OFTEN, TESTIMONY CAN
BE OBTAINED ONLY IN COURT WITH THE AID OF COMPULSORY PROCESS.  THE
DIFFICULTIES IN REQUIRING EXPOSURE BY AFFIDAVIT ARE OVERWHELMING AND
DECISIVE IN CASES OF THIS TYPE. 

I DO NOT BELIEVE CONGRESS EVER INTENDED SUCH A RULE.  TO ME SEC.
340(A) IS CLEAR AND UNAMBIGUOUS.  ITS PLAIN READING IS THAT PROCEEDINGS
MAY BE FILED BY THE UNITED STATES ATTORNEY "UPON AFFIDAVIT SHOWING GOOD
CAUSE THEREFOR."  HERE THE ATTORNEY SWORE TO SPECIFIC CHARGES WHICH
CERTAINLY DO CONSTITUTE "GOOD CAUSE."  THE SWORN STATEMENT THAT
PETITIONER WAS A MEMBER OF THE COMMUNIST PARTY AND THE WORKERS
COMMUNIST PARTY FROM 1925 TO 1947 ALLEGES A PRIMA FACIE CASE.  TO ME IT
SEEMS OBVIOUS THAT THE PURPOSE OF SEC. 340(A) - TO REDUCE THE
POSSIBILITY OF SPURIOUS DENATURALIZATION PROCEEDINGS - IS FULLY SERVED
BY SUCH A SWORN STATEMENT. 

NOR DID THE CONGRESS INTEND THAT THERE SHOULD BE TWO TRIALS OF ISSUES
OF FACT IN THESE CASES.  TO REQUIRE THE FILING OF EVIDENTIAL AFFIDAVITS
IMPLIES, AS ZUCCA CONTENDS, EXTENSIVE TESTING OF THEIR SUFFICIENCY
BEFORE TRIAL.  THE DEFENDANT IS THUS GIVEN TWO CHANCES AT THE
GOVERNMENT'S CASE.  THERE IS NO COMPARABLE REQUIREMENT FOR AN
INDICTMENT IN A CRIMINAL PROSECUTION, COSTELLO V. UNITED STATES, 350
U.S. 359.  BUT DENATURALIZATION IS ONLY A CIVIL PROCEEDING TO WITHDRAW
A PRIVILEGE WRONGFULLY OBTAINED.  THERE HAS ALWAYS BEEN THE REQUIREMENT
OF PROOF UNDER CROSS-EXAMINATION OF CHARGES AGAINST THE NATURALIZED
CITIZEN, BUT APPARENTLY IN THIS CASE THE COURT AUTHORIZES AN ADDITIONAL
PROCEDURE.  BEFORE HIS TRIAL IN THIS DENATURALIZATION PROCEEDING, ZUCCA
MAY FILE A BILL OF PARTICULARS AND TAKE DEPOSITIONS OF EACH WITNESS
SIGNING A "GOOD CAUSE" AFFIDAVIT.  THE SCOPE AND RELIABILITY OF THE
AFFIDAVITS ARE THEN MADE THE SUBJECT OF JUDICIAL INQUIRY.  (FN4)  IF
THE GOVERNMENT PROVES ITS CASE AT THIS STAGE, IT MAY THEN GO TO TRIAL,
WHERE THE SAME EVIDENCE IS CONSIDERED AGAIN.  TO MY WAY OF THINKING,
THIS CLEARLY FRUSTRATES AN IMPORTANT CONGRESSIONAL PROGRAM, A PART OF
THE BROADER ONE DESIGNED TO PROTECT OUR COUNTRY FROM COMMUNIST
INFILTRATION. 

IN MY OPINION SEC. 340(A) REQUIRES THE UNITED STATES ATTORNEY TO
ALLEGE IN A SWORN COMPLAINT SUFFICIENT FACTUAL INFORMATION TO SHOW A
PRIMA FACIE CASE FOR DENATURALIZATION.  AT MOST IT SHOULD BE SUFFICIENT
FOR AN OFFICER OF THE IMMIGRATION AND NATURALIZATION SERVICE FAMILIAR
WITH THE CASE TO MAKE SUCH ALLEGATIONS UNDER OATH.  IF THE COURT WOULD
REQUIRE THIS PAPER TO BE HEADED "AFFIDAVIT" AND CONTAINED IN A SEPARATE
BLUE BACKING, I WOULD HAVE NO OBJECTION, THOUGH I SEE NOTHING TO BE
GAINED FROM SUCH A TECHNICAL LABELING.  BUT AS I READ THE COURT'S
DECISION TODAY IT GOES MUCH FURTHER THAN THIS, AND IT MAY WELL SUBMERGE
THE DENATURALIZATION PROCEDURE ESTABLISHED BY CONGRESS IN A MORASS OF
UNINTENDED PROCEDURAL DIFFICULTIES. 

FN1  SCHWINN V. UNITED STATES, 112 F.2D 74 (C.A. 9TH CIR.), AFF'D 311
U.S. 616; UNITED STATES V. TUTEUR, 215 F.2D 415 (C.A. 7TH CIR.); UNITED
STATES V. KNIGHT, 291 F. 129 (D.C. MONT.), AFF'D 299 F. 571 (C.A. 9TH
CIR.); UNITED STATES V. COLLINS, 131 F. SUPP.  545 (D.C.S.D.N.Y.);
UNITED STATES V. SHINKEVICH, 131 F. SUPP. 547 (D.C.E.D. PA.); UNITED
STATES V. JEROME, 115 F. SUPP. 818 (D.C.S.D.N.Y.); UNITED STATES V.
LUSTIG, 110 F. SUPP.  806 (D.C.S.D.N.Y.); UNITED STATES V. SCHUCHHARDT,
48 F. SUPP. 876 (D.C.N.D. IND.); UNITED STATES V. LELES, 227 F. 189,
236 F. 784 (D.C.N.D. CALIF.); UNITED STATES V. RADZIE, 14 F.R.D. 151
(D.C.S.D.N.Y.); UNITED STATES V. FAVORITO, 7 F.R.D. 152 (D.C.N.D.
OHIO). 

FN2  IN SCHWINN V. UNITED STATES, 112 F.2D 74, THE NINTH CIRCUIT HELD
THAT THE FILING OF THE AFFIDAVIT WAS NOT "JURISDICTIONAL," AND PASSED
ON THE MERITS.  WE GRANTED CERTIORARI AND AFFIRMED SUMMARILY "ON THE
SOLE GROUND" THAT THE CERTIFICATE HAD BEEN ILLEGALLY PROCURED.  311
U.S. 616.  IN SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, WE
CONSIDERED THE MERITS AT LENGTH, EVEN THOUGH THE "AFFIDAVIT" FILED IN
THAT CASE BY THE IMMIGRATION INSPECTOR REVEALED THAT HIS INFORMATION
WAS BASED, AS HERE, SOLELY ON THE GOVERNMENT'S FILES, AND WAS IN
EXACTLY THE FORM USED HERE. 

FN3  THE TRIAL JUDGE HELD "THAT BEFORE A UNITED STATES ATTORNEY MAY
INSTITUTE A DENATURALIZATION PROCEEDING HE MUST BE FURNISHED WITH AN
AFFIDAVIT OF GOOD CAUSE." 

FN4  THE TRIAL JUDGE HELD, "BUT, THE PROTECTION AFFORDED BY THE
REQUIREMENT OF AN AFFIDAVIT OF GOOD CAUSE WOULD BE SERIOUSLY IMPAIRED
IF THE DEFENDANT IN A DENATURALIZATION ACTION COULD NOT EXAMINE IT AND
TEST ITS SUFFICIENCY BY MOTION BEFORE TRIAL." 
..END :

















NATIONAL LABOR RELATIONS BOARD V. BABCOCK & WILCOX CO. 351 U.S. 105 


NO. 250.  ARGUED JANUARY 25, 1956.  - DECIDED APRIL 30, 1956.  - 222
F.2D 316, AFFIRMED.  - 222 F.2D 858, AFFIRMED.  - 222 F.2D 543,
REVERSED. 


IN THE CIRCUMSTANCES OF THESE CASES, THE NONDISCRIMINATORY REFUSAL OF
THE EMPLOYERS TO PERMIT DISTRIBUTION OF UNION LITERATURE BY NONEMPLOYEE
UNION ORGANIZERS ON COMPANY-OWNED PARKING LOTS DID NOT UNREASONABLY
IMPEDE THEIR EMPLOYEES' RIGHT TO SELF-ORGANIZATION IN VIOLATION OF SEC.
8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT, BECAUSE THE LOCATIONS OF
THE PLANTS AND OF THE LIVING QUARTERS OF THE EMPLOYEES DID NOT PLACE
THE EMPLOYEES BEYOND THE REACH OF REASONABLE EFFORTS OF THE UNIONS TO
COMMUNICATE WITH THEM BY OTHER MEANS.  PP. 106-114. 

(A)  AN EMPLOYER MAY VALIDLY POST HIS PROPERTY AGAINST NON-EMPLOYEE
DISTRIBUTION OF UNION LITERATURE, IF REASONABLE EFFORTS BY THE UNION
THROUGH OTHER AVAILABLE CHANNELS OF COMMUNICATION WILL ENABLE IT TO
REACH THE EMPLOYEES WITH ITS MESSAGE AND IF THE EMPLOYER'S NOTICE OR
ORDER DOES NOT DISCRIMINATE AGAINST THE UNION BY ALLOWING OTHER
DISTRIBUTION.  P. 112. 

(B)  REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793,
DISTINGUISHED.  PP. 112-113. 

(C)  THE ACT REQUIRES ONLY THAT THE EMPLOYER REFRAIN FROM
INTERFERENCE, DISCRIMINATION, RESTRAINT OR COERCION IN THE EMPLOYEES'
EXERCISE OF THEIR OWN RIGHTS.  IT DOES NOT REQUIRE THAT THE EMPLOYER
PERMIT THE USE OF ITS FACILITIES FOR ORGANIZATION WHEN OTHER MEANS ARE
READILY AVAILABLE.  PP. 113-114. 

NATIONAL LABOR RELATIONS BOARD V. BABCOCK & WILCOX CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT.* 

*TOGETHER WITH NO. 251, LABOR BOARD V. SEAMPRUFE, INC., ON CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT, AND NO.
422, RANCO, INC. V. LABOR BOARD, ON CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT, BOTH ARGUED JANUARY 26, 1956. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

IN EACH OF THESE CASES THE EMPLOYER REFUSED TO PERMIT DISTRIBUTION OF
UNION LITERATURE BY NONEMPLOYEE UNION ORGANIZERS ON COMPANY-OWNED
PARKING LOTS.  THE NATIONAL LABOR RELATIONS BOARD, IN SEPARATE AND
UNRELATED PROCEEDINGS, FOUND IN EACH CASE THAT IT WAS UNREASONABLY
DIFFICULT FOR THE UNION ORGANIZER TO REACH THE EMPLOYEES OFF COMPANY
PROPERTY AND HELD THAT, IN REFUSING THE UNIONS ACCESS TO PARKING LOTS,
THE EMPLOYERS HAD UNREASONABLY IMPEDED THEIR EMPLOYEES' RIGHT TO SELF
ORGANIZATION IN VIOLATION OF SEC. 8(A)(1) OF THE NATIONAL LABOR
RELATIONS ACT.  BABCOCK & WILCOX CO., 109 N.L.R.B. 485, 494; RANCO,
INC., ID., 998, 1007, AND SEAMPRUFE, INC., ID., 24, 32. 

THE PLANT INVOLVED IN NO. 250, LABOR BOARD V. BABCOCK & WILCOX CO.,
IS A COMPANY ENGAGED IN THE MANUFACTURE OF TUBULAR PRODUCTS SUCH AS
BOILERS AND ACCESSORIES, LOCATED ON A 100-ACRE TRACT ABOUT ONE MILE
FROM A COMMUNITY OF 21,000 PEOPLE.  APPROXIMATELY 40% OF THE 500
EMPLOYEES LIVE IN THAT TOWN AND THE REMAINDER LIVE WITHIN A 30-MILE
RADIUS.  MORE THAN 90% OF THEM DRIVE TO WORK IN PRIVATE AUTOMOBILES AND
PARK ON A COMPANY LOT THAT ADJOINS THE FENCED IN PLANT AREA.  THE
PARKING LOT IS REACHED ONLY BY A DRIVEWAY 100 YARDS LONG WHICH IS
ENTIRELY ON COMPANY PROPERTY EXCEPTING FOR A PUBLIC RIGHT-OF-WAY THAT
EXTENDS 31 FEET FROM THE METAL OF THE HIGHWAY TO THE PLANT'S PROPERTY. 
THUS, THE ONLY PUBLIC PLACE IN THE IMMEDIATE VICINITY OF THE PLANT AREA
AT WHICH LEAFLETS CAN BE EFFECTIVELY DISTRIBUTED TO EMPLOYEES IS THAT
PLACE WHERE THIS DRIVEWAY CROSSES THE PUBLIC RIGHT-OF-WAY.  BECAUSE OF
THE TRAFFIC CONDITIONS AT THAT PLACE THE BOARD FOUND IT PRACTICALLY
IMPOSSIBLE FOR UNION ORGANIZERS TO DISTRIBUTE LEAFLETS SAFELY TO
EMPLOYEES IN MOTORS AS THEY ENTER OR LEAVE THE LOT.  THE BOARD NOTED
THAT THE COMPANY'S POLICY ON SUCH DISTRIBUTION HAD NOT DISCRIMINATED
AGAINST LABOR ORGANIZATIONS AND THAT OTHER MEANS OF COMMUNICATION, SUCH
AS THE MAIL AND TELEPHONES, AS WELL AS THE HOMES OF THE WORKERS, WERE
OPEN TO THE UNION.  (FN1)  THE EMPLOYER JUSTIFIED ITS REFUSAL TO ALLOW
DISTRIBUTION OF LITERATURE ON COMPANY PROPERTY ON THE GROUND THAT IT
HAD MAINTAINED A CONSISTENT POLICY OF REFUSING ACCESS TO ALL KINDS OF
PAMPHLETEERING AND THAT SUCH DISTRIBUTION OF LEAFLETS WOULD LITTER ITS
PROPERTY. 

THE BOARD FOUND THAT THE PARKING LOT AND THE WALKWAY FROM IT TO THE
GATEHOUSE, WHERE EMPLOYEES PUNCHED IN FOR WORK, WERE THE ONLY "SAFE AND
PRACTICABLE" PLACES FOR DISTRIBUTION OF UNION LITERATURE.  THE BOARD
VIEWED THE PLACE OF WORK AS SO MUCH MORE EFFECTIVE A PLACE FOR
COMMUNICATION OF INFORMATION THAT IT HELD THE EMPLOYER GUILTY OF AN
UNFAIR LABOR PRACTICE FOR REFUSING LIMITED ACCESS TO COMPANY PROPERTY
TO UNION ORGANIZERS.  IT THEREFORE ORDERED THE EMPLOYER TO RESCIND ITS
NO-DISTRIBUTION ORDER FOR THE PARKING LOT AND WALKWAY, SUBJECT TO
REASONABLE AND NONDISCRIMINATING REGULATIONS "IN THE INTEREST OF PLANT
EFFICIENCY AND DISCIPLINE, BUT NOT AS TO DENY ACCESS TO UNION
REPRESENTATIVES FOR THE PURPOSE OF EFFECTING SUCH DISTRIBUTION."  109
N.L.R.B., AT 486. 

THE BOARD PETITIONED THE COURT OF APPEALS FOR THE FIFTH CIRCUIT FOR
ENFORCEMENT.  THAT COURT REFUSED ENFORCEMENT ON THE GROUND THE STATUTE
DID NOT AUTHORIZE THE BOARD TO IMPOSE A SERVITUDE ON THE EMPLOYER'S
PROPERTY WHERE NO EMPLOYEE WAS INVOLVED.  LABOR BOARD V. BABCOCK &
WILCOX CO., 222 F.2D 316. 

THE CONDITIONS AND CIRCUMSTANCES INVOLVED IN NO. 251, LABOR BOARD V.
SEAMPRUFE, INC., AND NO. 422, RANCO, INC. V. LABOR BOARD, ARE NOT
MATERIALLY DIFFERENT, EXCEPT THAT SEAMPRUFE INVOLVES A PLANT EMPLOYING
APPROXIMATELY 200 PERSONS AND IN THE RANCO CASE IT APPEARS THAT UNION
ORGANIZERS HAD A BETTER OPPORTUNITY TO PASS OUT LITERATURE OFF COMPANY
PROPERTY.  THE BOARD LIKEWISE ORDERED THESE EMPLOYERS TO ALLOW UNION
ORGANIZERS LIMITED ACCESS TO COMPANY LOTS.  THE ORDERS WERE IN
SUBSTANTIALLY SIMILAR FORM AS THAT IN THE BABCOCK & WILCOX CASE. 
ENFORCEMENT OF THE ORDERS WAS SOUGHT IN THE COURTS OF APPEALS.  THE
COURT OF APPEALS FOR THE TENTH CIRCUIT IN NO. 251, LABOR BOARD V.
SEAMPRUFE, INC., 222 F.2D 828, REFUSED ENFORCEMENT ON THE GROUND THAT A
NONEMPLOYEE CAN JUSTIFY HIS PRESENCE ON COMPANY PROPERTY ONLY "AS IT
BEARS A COGENT RELATIONSHIP TO THE EXERCISE OF THE EMPLOYEES'
GUARANTEED RIGHT OF SELF-ORGANIZATION."  THESE "SOLICITORS WERE
THEREFORE STRANGERS TO THE RIGHT OF SELF-ORGANIZATION, ABSENT A SHOWING
OF NONACCESSIBILITY AMOUNTING TO A HANDICAP TO SELF-ORGANIZATION." 
ID., AT 861.  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT IN NO. 422
GRANTED ENFORCEMENT.  LABOR BOARD V. RANCO, INC., 222 F.2D 543.  THE
PER CURIAM OPINION DEPENDED UPON ITS DECISION IN LABOR BOARD V. MONARCH
TOOL CO., 210 F.2D 183, A CASE IN WHICH ONLY EMPLOYEES WERE INVOLVED;
LABOR BOARD V. LAKE SUPERIOR LUMBER CORPORATION, 167 F.2D 147, AN
ISOLATED LUMBER CAMP CASE; AND OUR REPUBLIC AVIATION CORP. V. LABOR
BOARD, 324 U.S. 793.  IT APPARENTLY CONSIDERED, AS HELD IN THE MONARCH
TOOL CASE, SUPRA, AT 186, THAT THE ATTITUDE OF THE EMPLOYER IN THE
RANCO CASE WAS AN "UNREASONABLE IMPEDIMENT TO THE FREEDOM OF
COMMUNICATION ESSENTIAL TO THE EXERCISE OF ITS EMPLOYEES' RIGHTS TO
SELF ORGANIZATION."  BECAUSE OF THE CONFLICTING DECISIONS ON A
RECURRING PHASE OF ENFORCEMENT OF THE NATIONAL LABOR RELATIONS ACT, WE
GRANTED CERTIORARI.  350 U.S. 818, 894. 

IN EACH OF THESE CASES THE BOARD FOUND THAT THE EMPLOYER VIOLATED
SEC. 8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 140, MAKING
IT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO INTERFERE WITH EMPLOYEES
IN THE EXERCISE OF RIGHTS GUARANTEED IN SEC. 7 OF THAT ACT.  THE
PERTINENT LANGUAGE OF THE TWO SECTIONS APPEARS BELOW.  (FN2)  THESE
HOLDINGS WERE PLACED ON THE LABOR BOARD'S DETERMINATION IN LETOURNEAU
COMPANY OF GEORGIA, 54 N.L.R.B. 1253.  IN THE LETOURNEAU CASE THE BOARD
BALANCED THE CONFLICTING INTERESTS OF EMPLOYEES TO RECEIVE INFORMATION
ON SELF-ORGANIZATION ON THE COMPANY'S PROPERTY FROM FELLOW EMPLOYEES
DURING NONWORKING TIME, WITH THE EMPLOYER'S RIGHT TO CONTROL THE USE OF
HIS PROPERTY AND FOUND THE FORMER MORE ESSENTIAL IN THE CIRCUMSTANCES
OF THAT CASE.  (FN3)  RECOGNIZING THAT THE EMPLOYER COULD RESTRICT
EMPLOYEES' UNION ACTIVITIES WHEN NECESSARY TO MAINTAIN PLANT DISCIPLINE
OR PRODUCTION, THE BOARD SAID:  "UPON ALL THE ABOVE CONSIDERATIONS, WE
ARE CONVINCED, AND FIND, THAT THE RESPONDENT, IN APPLYING ITS 'NO
DISTRIBUTING' RULE TO THE DISTRIBUTION OF UNION LITERATURE BY ITS
EMPLOYEES ON ITS PARKING LOTS HAS PLACED AN UNREASONABLE IMPEDIMENT ON
THE FREEDOM OF COMMUNICATION ESSENTIAL TO THE EXERCISE OF ITS
EMPLOYEES' RIGHT TO SELF-ORGANIZATION," LETOURNEAU COMPANY OF GEORGIA,
54 N.L.R.B., AT 1262.  THIS COURT AFFIRMED THE BOARD.  REPUBLIC
AVIATION CORP. V. LABOR BOARD, 324 U.S. 793, 801 ET SEQ. THE SAME RULE
HAD BEEN EARLIER AND MORE FULLY STATED IN PEYTON PACKING CO., 49
N.L.R.B. 828, 843-844. 

THE BOARD HAS APPLIED ITS REASONING IN THE LETOURNEAU CASE WITHOUT
DISTINCTION TO SITUATIONS WHERE THE DISTRIBUTION WAS MADE, AS HERE, BY
NONEMPLOYEES.  CAROLINA MILLS, 92 N.L.R.B. 1141, 1149, 1168-1169. 
(FN4)  THE FACT THAT OUR LETOURNEAU CASE RULED ONLY AS TO EMPLOYEES HAS
BEEN NOTED BY THE COURTS OF APPEAL IN LABOR BOARD V. LAKE SUPERIOR
LUMBER CORP., 167 F.2D 147, 150, AND LABOR BOARD V. SEAMPRUFE, INC.,
222 F.2D, AT 860.  CF. LABOR BOARD V. AMERICAN FURNACE CO., 158 F.2D
376, 380. 

IN THESE PRESENT CASES THE BOARD HAS SET OUT THE FACTS THAT SUPPORT
ITS CONCLUSIONS AS TO THE NECESSITY FOR ALLOWING NONEMPLOYEE UNION
ORGANIZERS TO DISTRIBUTE UNION LITERATURE ON THE COMPANY'S PROPERTY. 
IN ESSENCE THEY ARE THAT NONEMPLOYEE UNION REPRESENTATIVES, IF BARRED,
WOULD HAVE TO USE PERSONAL CONTACTS ON STREETS OR AT HOME, TELEPHONES,
LETTERS OR ADVERTISED MEETINGS TO GET IN TOUCH WITH THE EMPLOYEES.  THE
FORCE OF THIS POSITION IN RESPECT TO EMPLOYEES ISOLATED FROM NORMAL
CONTACTS HAS BEEN RECOGNIZED BY THIS COURT AND BY OTHERS.  SEE REPUBLIC
AVIATION CORPORATION V. LABOR BOARD, SUPRA, AT 799, NOTE 3; LABOR BOARD
V. LAKE SUPERIOR LUMBER CORP., SUPRA, AT 150.  WE RECOGNIZE, TOO, THAT
THE BOARD HAS THE RESPONSIBILITY OF "APPLYING THE ACT'S GENERAL
PROHIBITORY LANGUAGE IN THE LIGHT OF THE INFINITE COMBINATIONS OF
EVENTS WHICH MIGHT BE CHARGED AS VIOLATIVE OF ITS TERMS."  LABOR BOARD
V. STOWE SPINNING CO., 336 U.S. 226, 231.  WE ARE SLOW TO OVERTURN AN
ADMINISTRATIVE DECISION. 

IT IS OUR JUDGMENT, HOWEVER, THAT AN EMPLOYER MAY VALIDLY POST HIS
PROPERTY AGAINST NONEMPLOYEE DISTRIBUTION OF UNION LITERATURE IF
REASONABLE EFFORTS BY THE UNION THROUGH OTHER AVAILABLE CHANNELS OF
COMMUNICATION WILL ENABLE IT TO REACH THE EMPLOYEES WITH ITS MESSAGE
AND IF THE EMPLOYER'S NOTICE OR ORDER DOES NOT DISCRIMINATE AGAINST THE
UNION BY ALLOWING OTHER DISTRIBUTION.  IN THESE CIRCUMSTANCES THE
EMPLOYER MAY NOT BE COMPELLED TO ALLOW DISTRIBUTION EVEN UNDER SUCH
REASONABLE REGULATIONS AS THE ORDERS IN THESE CASES PERMIT. 

THIS IS NOT A PROBLEM OF ALWAYS OPEN OR ALWAYS CLOSED DOORS FOR UNION
ORGANIZATION ON COMPANY PROPERTY.  ORGANIZATION RIGHTS ARE GRANTED TO
WORKERS BY THE SAME AUTHORITY, THE NATIONAL GOVERNMENT, THAT PRESERVES
PROPERTY RIGHTS.  ACCOMMODATION BETWEEN THE TWO MUST BE OBTAINED WITH
AS LITTLE DESTRUCTION OF ONE AS IS CONSISTENT WITH THE MAINTENANCE OF
THE OTHER.  THE EMPLOYER MAY NOT AFFIRMATIVELY INTERFERE WITH
ORGANIZATION; THE UNION MAY NOT ALWAYS INSIST THAT THE EMPLOYER AID
ORGANIZATION.  BUT WHEN THE INACCESSIBILITY OF EMPLOYEES MAKES
INEFFECTIVE THE REASONABLE ATTEMPTS BY NONEMPLOYEES TO COMMUNICATE WITH
THEM THROUGH THE USUAL CHANNELS, THE RIGHT TO EXCLUDE FROM PROPERTY HAS
BEEN REQUIRED TO YIELD TO THE EXTENT NEEDED TO PERMIT COMMUNICATION OF
INFORMATION ON THE RIGHT TO ORGANIZE. 

THE DETERMINATION OF THE PROPER ADJUSTMENTS RESTS WITH THE BOARD. 
ITS RULINGS, WHEN REACHED ON FINDINGS OF FACT SUPPORTED BY SUBSTANTIAL
EVIDENCE ON THE RECORD AS A WHOLE, (FN5) SHOULD BE SUSTAINED BY THE
COURTS UNLESS ITS CONCLUSIONS REST ON ERRONEOUS LEGAL FOUNDATIONS. 
HERE THE BOARD FAILED TO MAKE A DISTINCTION BETWEEN RULES OF LAW
APPLICABLE TO EMPLOYEES AND THOSE APPLICABLE TO NONEMPLOYEES.  (FN6) 

THE DISTINCTION IS ONE OF SUBSTANCE.  NO RESTRICTION MAY BE PLACED ON
THE EMPLOYEES' RIGHT TO DISCUSS SELF-ORGANIZATION AMONG THEMSELVES,
UNLESS THE EMPLOYER CAN DEMONSTRATE THAT A RESTRICTION IS NECESSARY TO
MAINTAIN PRODUCTION OR DISCIPLINE.  REPUBLIC AVIATION CORP. V. LABOR
BOARD, 324 U.S. 793, 803.  BUT NO SUCH OBLIGATION IS OWED NONEMPLOYEE
ORGANIZERS.  THEIR ACCESS TO COMPANY PROPERTY IS GOVERNED BY A
DIFFERENT CONSIDERATION.  THE RIGHT OF SELF-ORGANIZATION DEPENDS IN
SOME MEASURE ON THE ABILITY OF EMPLOYEES TO LEARN THE ADVANTAGES OF
SELF-ORGANIZATION FROM OTHERS.  CONSEQUENTLY, IF THE LOCATION OF A
PLANT AND THE LIVING QUARTERS OF THE EMPLOYEES PLACE THE EMPLOYEES
BEYOND THE REACH OF REASONABLE UNION EFFORTS TO COMMUNICATE WITH THEM,
THE EMPLOYER MUST ALLOW THE UNION TO APPROACH HIS EMPLOYEES ON HIS
PROPERTY.  NO SUCH CONDITIONS ARE SHOWN IN THESE RECORDS. 

THE PLANTS ARE CLOSE TO SMALL WELL-SETTLED COMMUNITIES WHERE A LARGE
PERCENTAGE OF THE EMPLOYEES LIVE.  THE USUAL METHODS OF IMPARTING
INFORMATION ARE AVAILABLE.  SEE, E.G., NOTE 1, SUPRA.  THE VARIOUS
INSTRUMENTS OF PUBLICITY ARE AT HAND.  THOUGH THE QUARTERS OF THE
EMPLOYEES ARE SCATTERED THEY ARE IN REASONABLE REACH.  THE ACT REQUIRES
ONLY THAT THE EMPLOYER REFRAIN FROM INTERFERENCE, DISCRIMINATION,
RESTRAINT OR COERCION IN THE EMPLOYEES' EXERCISE OF THEIR OWN RIGHTS. 
IT DOES NOT REQUIRE THAT THE EMPLOYER PERMIT THE USE OF ITS FACILITIES
FOR ORGANIZATION WHEN OTHER MEANS ARE READILY AVAILABLE. 

LABOR BOARD V. BABCOCK & WILCOX CO., NO. 250, IS AFFIRMED. 

LABOR BOARD V. SEAMPRUFE, INC., NO. 251, IS AFFIRMED. 

RANCO, INC. V. LABOR BOARD, NO. 422, IS REVERSED. 

FN1  "OTHER UNION CONTACTS WITH EMPLOYEES:  IN ADDITION TO
DISTRIBUTING LITERATURE TO SOME OF THE EMPLOYEES, AS SHOWN ABOVE,
DURING THE PERIOD OF CONCERN HEREIN THE UNION HAS HAD OTHER CONTACTS
WITH SOME OF THE EMPLOYEES.  IT HAS COMMUNICATED WITH OVER 100
EMPLOYEES OF RESPONDENT ON 3 DIFFERENT OCCASIONS BY SENDING LITERATURE
TO THEM THROUGH THE MAILS.  UNION REPRESENTATIVES HAVE COMMUNICATED
WITH MANY OF RESPONDENT'S EMPLOYEES BY TALKING WITH THEM ON THE STREETS
OF PARIS, BY DRIVING TO THEIR HOMES AND TALKING WITH THEM THERE, AND BY
TALKING WITH THEM OVER THE TELEPHONE.  ALL OF THESE CONTACTS HAVE BEEN
FOR THE PURPOSE OF SOLICITING THE ADHERENCE AND MEMBERSHIP OF THE
EMPLOYEES IN THE UNION."  109 N.L.R.B., AT 492-493. 

FN2  "SEC.  7.  EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZE, 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  ...  .    "SEC. 8(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 7  ...  ."  61 STAT. 140,
29 U.S.C. SECS. 157, 158(A)(1). 

FN3  "AS PREVIOUSLY INDICATED, THE RESPONDENT'S PLANT IS LOCATED IN
THE COUNTRY IN THE HEART OF 6,000 ACRES OF LAND OWNED BY IT OR ITS
SUBSIDIARY.  APART FROM U.S. HIGHWAY NO. 13 (AND PERHAPS THE
INTERSECTING ROAD), THE RESPONDENT AND ITS SUBSIDIARY OWN ALL THE LAND
ADJACENT TO THE PLANT.  THIS, IN ITSELF, SERIOUSLY LIMITS THE
POSSIBILITIES OF EFFECTIVELY COMMUNICATING WITH THE BULK OF THE
RESPONDENT'S EMPLOYEES.  THIS LIMITATION WOULD NOT, HOWEVER, BE TOO
RESTRICTIVE IF THE RESPONDENT'S GATE OPENED DIRECTLY ONTO THE HIGHWAY,
FOR THEN PERSONS COULD STAND OUTSIDE THE RESPONDENT'S PREMISES AND
DISTRIBUTE LITERATURE AS EACH EMPLOYEE ENTERED OR LEFT THE PLANT.  BUT
AT THE RESPONDENT'S PLANT THE GATE IS 100 FEET BACK FROM THE HIGHWAY,
ON COMPANY PROPERTY.  OVER 60 PERCENT OF THE RESPONDENT'S EMPLOYEES,
AFTER PASSING THE GATE, ENTER AUTOMOBILES OR BUSSES PARKED IN THE SPACE
BETWEEN THE GATE AND THE HIGHWAY, AND PRESUMABLY SPEED HOMEWARD,
WITHOUT EVER SETTING FOOT ON THE HIGHWAY.  DISTRIBUTION OF LITERATURE
TO EMPLOYEES IS RENDERED VIRTUALLY IMPOSSIBLE UNDER THESE
CIRCUMSTANCES, AND IT IS AN INESCAPABLE CONCLUSION THAT SELF
ORGANIZATION IS CONSEQUENTLY SERIOUSLY IMPEDED.  IT IS NO ANSWER TO
SUGGEST THAT OTHER MEANS OF DISSEMINATING UNION LITERATURE ARE NOT
FORECLOSED.  MOREOVER, THE EMPLOYEES' HOMES ARE SCATTERED OVER A WIDE
AREA.  IN THE ABSENCE OF A LIST OF NAMES AND ADDRESSES, IT APPEARS THAT
DIRECT CONTACT WITH THE MAJORITY OF THE RESPONDENT'S EMPLOYEES AWAY
FROM THE PLANT WOULD BE EXTREMELY DIFFICULT."  LETOURNEAU COMPANY OF
GEORGIA, 54 N.L.R.B., AT 1260-1261. 

FN4  AN ELEMENT OF DISCRIMINATION EXISTED IN THE CAROLINA MILLS CASE,
92 N.L.R.B., AT 1142, SUCH AS EXISTED IN LABOR BOARD V. STOWE SPINNING
CO., 336 U.S. 226, 230, 233, BUT THIS WAS NOT RELIED UPON IN THE
OPINION.  SEE ALSO CALDWELL FURNITURE CO., 97 N.L.R.B.  1501, 1502,
1509; MONARCH MACHINE TOOL CO., 102 N.L.R.B. 1242, 1248, ENFORCED,
LABOR BOARD V. MONARCH TOOL CO., 210 F.2D 183.  FOR A COLLECTION OF
BOARD CASES, SEE RANCO, INC., 109 N.L.R.B. 998, 1006, AND NOTE, 65 YALE
L.J. 423. 

FN5 UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 491. 

FN6  IN THE SEAMPRUFE CASE THE EXAMINER'S REPORT, APPROVED BY THE
BOARD, SAID:  "TO DIFFERENTIATE BETWEEN EMPLOYEES SOLICITING ON BEHALF
OF THE UNION AND NONEMPLOYEE UNION SOLICITORS WOULD BE A
DIFFERENTIATION NOT ONLY WITHOUT SUBSTANCE BUT IN CLEAR DEFIANCE OF THE
RATIONALE GIVEN BY THE BOARD AND THE COURTS FOR PERMITTING
SOLICITATION.  THIS CONCLUSION IS BASED ON THE BELIEF THAT THE
RATIONALE ENUNCIATED BY THE SUPREME COURT IN THE LETOURNEAU CASE,
SUPRA, IS EQUALLY APPLICABLE IN THE CASE OF SOLICITATION BY UNION
REPRESENTATIVES AS WELL AS WHERE THE SOLICITATION IS DONE BY
EMPLOYEES."  109 N.L.R.B., AT 32.  SEE ALSO BABCOCK & WILCOX CO., ID.,
AT 493, AND RANCO, INC., ID., AT 1006. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :






COMMUNIST PARTY OF THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL
BOARD 351 U.S. 115 


NO. 48.  ARGUED NOVEMBER 17, 1955.  - DECIDED APRIL 30, 1956.  - 96 U.S.
APP. D.C. 66, 223 F.2D 531, REVERSED AND REMANDED. 


AN ORDER OF THE SUBVERSIVE ACTIVITIES CONTROL BOARD THAT PETITIONER
REGISTER WITH THE ATTORNEY GENERAL AS A "COMMUNIST-ACTION"
ORGANIZATION, AS REQUIRED BY THE SUBVERSIVE ACTIVITIES CONTROL ACT OF
1950, WAS APPEALED BY PETITIONER TO THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA.  WHILE THE APPEAL WAS PENDING, PETITIONER FILED A
MOTION FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE PURSUANT TO SEC. 14(A)
OF THE ACT, ALLEGING INTER ALIA THAT EVIDENCE WHICH BECAME AVAILABLE TO
PETITIONER SUBSEQUENT TO THE ADMINISTRATIVE PROCEEDING WOULD ESTABLISH
THAT THE TESTIMONY OF THREE OF THE ATTORNEY GENERAL'S WITNESSES ON
WHICH THE BOARD RELIED WAS PERJURIOUS.  THE GOVERNMENT DID NOT DENY
PETITIONER'S ALLEGATIONS.  THE COURT OF APPEALS DENIED THE MOTION,
UPHELD THE CONSTITUTIONALITY OF THE ACT, AND AFFIRMED THE BOARD'S
ORDER.  BOTH THE GOVERNMENT AND THE COURT OF APPEALS DEEMED THE
INNOCENT TESTIMONY SUFFICIENT TO SUSTAIN THE BOARD'S CONCLUSION.  HELD:
THE COURT OF APPEALS ERRED IN REFUSING TO RETURN THE CASE TO THE BOARD
FOR CONSIDERATION OF THE NEW EVIDENCE PROFFERED BY PETITIONER'S MOTION
AND AFFIDAVIT.  PP. 116-125. 

(A)  THE CASE MUST BE DECIDED ON THE NONCONSTITUTIONAL ISSUE, IF THE
RECORD CALLS FOR IT, WITHOUT REACHING CONSTITUTIONAL PROBLEMS.  P.
122. 

(B)  THE TESTIMONY OF THE THREE ALLEGEDLY PERJURIOUS WITNESSES WAS
NOT INCONSEQUENTIAL IN RELATION TO THE ISSUES ON WHICH THE BOARD HAD TO
PASS.  PP. 122-124. 

(C)  WHEN UNCONTESTED CHALLENGE IS MADE THAT A FINDING OF SUBVERSIVE
DESIGN BY PETITIONER WAS IN PART THE PRODUCT OF THREE PERJURIOUS
WITNESSES, IT DOES NOT REMOVE THE TAINT FOR A REVIEWING COURT TO FIND
THAT THERE IS AMPLE INNOCENT TESTIMONY TO SUPPORT THE BOARD'S
FINDINGS.  PP. 124-125. 

(D)  SINCE THE BASIS FOR CHALLENGING THE TESTIMONY WAS NOT IN
EXISTENCE WHEN THE PROCEEDINGS WERE CONCLUDED BEFORE THE BOARD,
PETITIONER SHOULD BE GIVEN LEAVE TO MAKE ITS ALLEGATIONS BEFORE THE
BOARD IN A PROCEEDING UNDER SEC. 14(A) OF THE ACT.  P. 125. 

(E)  THE BOARD MUST RECONSIDER ITS ORIGINAL DETERMINATION IN THE
LIGHT OF THE RECORD FREED FROM THE CHALLENGE THAT NOW BECLOUDS IT, AND
MUST BASE ITS FINDINGS UPON UNTAINTED EVIDENCE.  P. 125. 

COMMUNIST PARTY OF THE UNITED STATES V. SUBVERSIVE ACTIVITIES CONTROL
BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE TO REVIEW THE JUDGMENT OF THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA AFFIRMING AN ORDER OF THE SUBVERSIVE
ACTIVITIES CONTROL BOARD THAT PETITIONER REGISTER WITH THE ATTORNEY
GENERAL AS A "COMMUNIST-ACTION" ORGANIZATION, AS REQUIRED BY THE
SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, TITLE I OF THE INTERNAL
SECURITY ACT OF 1950, 64 STAT. 987.  THAT ACT SETS FORTH A
COMPREHENSIVE PLAN FOR REGULATION OF "COMMUNIST-ACTION" ORGANIZATIONS. 
(FN1)  SECTION 2 OF THE ACT DESCRIBES A WORLD COMMUNIST MOVEMENT
DIRECTED FROM ABROAD AND DESIGNED TO OVERTHROW THE GOVERNMENT OF THE
UNITED STATES BY ANY MEANS AVAILABLE, INCLUDING VIOLENCE.  SECTION 7
REQUIRES ALL COMMUNIST-ACTION ORGANIZATIONS TO REGISTER AS SUCH WITH
THE ATTORNEY GENERAL.  IF THE ATTORNEY GENERAL HAS REASON TO BELIEVE
THAT AN ORGANIZATION, WHICH HAS NOT REGISTERED, IS A COMMUNIST-ACTION
ORGANIZATION, HE IS REQUIRED BY SEC. 13(A) TO BRING A PROCEEDING TO
DETERMINE THAT FACT BEFORE THE SUBVERSIVE ACTIVITIES CONTROL BOARD, A
FIVE-MAN BOARD APPOINTED BY THE PRESIDENT WITH THE ADVICE AND CONSENT
OF THE SENATE AND CREATED FOR THE PURPOSE OF HOLDING HEARINGS AND
MAKING SUCH DETERMINATIONS.  SECTION 13(E) LAYS DOWN CERTAIN STANDARDS
FOR JUDGMENT BY THE BOARD. 

IF THE BOARD FINDS THAT AN ORGANIZATION IS A COMMUNIST-ACTION
ORGANIZATION, IT ENTERS AN ORDER REQUIRING THE ORGANIZATION TO REGISTER
WITH THE ATTORNEY GENERAL.  SEC. 13(G).  SECTION 14 PROVIDES THE RIGHT
TO FILE A PETITION FOR REVIEW OF BOARD ACTION IN THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA, WITH OPPORTUNITY FOR REVIEW BY THIS COURT
UPON CERTIORARI.  ONCE AN ORGANIZATION REGISTERS OR THERE IS
OUTSTANDING A FINAL ORDER OF THE BOARD REQUIRING IT TO REGISTER,
SEVERAL CONSEQUENCES FOLLOW WITH RESPECT TO THE ORGANIZATION AND ITS
MEMBERS, BUT THESE NEED NOT NOW BE DETAILED.  SEE SECS. 4, 5, 6, 7, 8,
10, 11, 15, 22, 25. 

PROCEEDING UNDER SEC. 13(A) OF THIS STATUTE, THE ATTORNEY GENERAL, ON
NOVEMBER 22, 1950, PETITIONED THE BOARD FOR AN ORDER DIRECTING
PETITIONER TO REGISTER PURSUANT TO SEC. 7 OF THE ACT.  PETITIONER
SOUGHT UNSUCCESSFULLY BY NUMEROUS MOTIONS BEFORE THE BOARD AND BY
PROCEEDINGS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA - ONE CASE IS REPORTED AT 96 F. SUPP. 47 - TO ATTACK THE
VALIDITY OF, AND TO ABORT, THE HEARING.  THE HEARING BEGAN ON APRIL 23,
1951, BEFORE THREE MEMBERS OF THE BOARD, LATER REDUCED TO TWO, SITTING
AS A HEARING PANEL, AND IT TERMINATED ON JULY 1, 1952.  PROPOSED
FINDINGS OF FACT AND BRIEFS WERE FILED BY BOTH PARTIES, AND ORAL
ARGUMENT WAS HELD BEFORE THE HEARING PANEL IN AUGUST 1952.  IN OCTOBER
1952 THE HEARING PANEL ISSUED A RECOMMENDED DECISION THAT THE BOARD
ORDER PETITIONER TO REGISTER AS A COMMUNIST-ACTION ORGANIZATION. 
EXCEPTIONS TO THE PANEL'S FINDINGS WERE FILED BY BOTH PARTIES, AND ORAL
ARGUMENT WAS HELD BEFORE THE BOARD IN JANUARY 1953.  THE BOARD FILED
ITS REPORT, WHICH OCCUPIES 251 PAGES OF THE RECORD IN THIS CASE, ON
APRIL 20, 1953. 

IN ITS REPORT THE BOARD FOUND THAT THERE EXISTED A WORLD COMMUNIST
MOVEMENT, SUBSTANTIALLY AS DESCRIBED IN SEC. 2 OF THE ACT, ORGANIZED
AND DIRECTED BY A FOREIGN GOVERNMENT.  THE BOARD DETAILED THE HISTORY
OF THE COMMUNIST PARTY OF THE UNITED STATES AND ITS CLOSE RELATION TO
THE WORLD COMMUNIST MOVEMENT.  IT THEN SET FORTH ILLUSTRATIVE EVIDENCE
AND MADE FINDINGS WITH RESPECT TO THE STATUTORY CRITERIA OF SEC. 13(E)
OF THE ACT, WHICH REQUIRED THE BOARD TO CONSIDER "THE EXTENT TO WHICH"
THE ORGANIZATION MET THEM.  (FN2)  THE BOARD FOUND THAT THE CONDITIONS
SET FORTH IN EACH OF THE PARAGRAPHS WERE APPLICABLE TO PETITIONER.  ON
THE BASIS OF THESE FINDINGS THE BOARD CONCLUDED THAT PETITIONER WAS A
COMMUNIST-ACTION ORGANIZATION, AS DEFINED BY SEC. 3, AND ORDERED IT TO
REGISTER AS SUCH WITH THE ATTORNEY GENERAL. 

PETITIONER BROUGHT THIS ORDER TO THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA FOR REVIEW.  WHILE THE CASE WAS PENDING, IT FILED
A MOTION, SUPPORTED BY AFFIDAVIT, FOR LEAVE TO ADDUCE ADDITIONAL
EVIDENCE PURSUANT TO SEC. 14(A) OF THE ACT.  (FN3)  THE BASIS OF THE
MOTION WAS THAT THE ADDITIONAL MATERIAL EVIDENCE BECAME AVAILABLE TO
THE PETITIONER SUBSEQUENT TO THE ADMINISTRATIVE PROCEEDING AND THAT
THIS EVIDENCE WOULD: 

"ESTABLISH THAT THE TESTIMONY OF THREE OF THE WITNESSES FOR THE
ATTORNEY GENERAL, ON WHICH THE BOARD RELIED EXTENSIVELY AND HEAVILY IN
MAKING FINDINGS WHICH ARE OF KEY IMPORTANCE TO THE ORDER NOW UNDER
REVIEW, WAS FALSE  ...  .  IN SUMMARY, THIS EVIDENCE WILL ESTABLISH
THAT CROUCH, JOHNSON AND MATUSOW, ALL PROFESSIONAL INFORMERS HERETOFORE
EMPLOYED BY THE DEPARTMENT OF JUSTICE AS WITNESSES IN NUMEROUS
PROCEEDINGS, HAVE COMMITTED PERJURY, ARE COMPLETELY UNTRUSTWORTHY AND
SHOULD BE ACCORDED NO CREDENCE; THAT AT LEAST TWO OF THEM ARE NOW BEING
INVESTIGATED FOR PERJURY BY THE DEPARTMENT OF JUSTICE, AND THAT BECAUSE
THEIR CHARACTER AS PROFESSIONAL PERJURORS HAS NOW BEEN CONCLUSIVELY AND
PUBLICLY DEMONSTRATED, THE ATTORNEY GENERAL HAS CEASED TO EMPLOY ANY OF
THEM AS WITNESSES." 

PETITIONER LISTED A NUMBER OF WITNESSES WHOM IT PROPOSED TO CALL TO
SUBSTANTIATE ITS CLAIM AND ALSO SET FORTH A DETAILED AFFIDAVIT IN
SUPPORT OF ITS ALLEGATIONS. 

THE GOVERNMENT DID NOT DENY THESE ALLEGATIONS.  IT FILED A
"MEMORANDUM IN OPPOSITION TO MOTION FOR LEAVE TO ADDUCE ADDITIONAL
EVIDENCE," SIGNED BY THE GENERAL COUNSEL TO THE BOARD AND BY OFFICIALS
OF THE DEPARTMENT OF JUSTICE.  THE MEMORANDUM ASSERTED THAT THE HEARING
SHOULD NOT BE REOPENED FOR THE RECEIPT OF EVIDENCE MERELY QUESTIONING,
AS IT CLAIMED, THE CREDIBILITY OF SOME WITNESSES, BUT NOT ANY FACT AT
ISSUE, AND IT MAINTAINED THAT THE FINDINGS OF THE BOARD WERE AMPLY
SUPPORTED BY EVIDENCE APART FROM THE TESTIMONY OF THE THREE WITNESSES
SOUGHT TO BE DISCREDITED.  ON DECEMBER 23, 1954, THIS MOTION WAS
FORMALLY DENIED BY THE COURT OF APPEALS WITHOUT OPINION.  IN ITS FULL
OPINION ON THE MERITS, FILED THE SAME DAY, HOWEVER, THE COURT OF
APPEALS SUPPORTED ITS REJECTION OF PETITIONER'S MOTION: 

"THE PARTY ATTACKS THE CREDIBILITY OF THE WITNESSES PRESENTED BY THE
GOVERNMENT.  IN THIS CONNECTION IT STRESSES THAT SOME OF THESE
WITNESSES  ...  WERE UNDER CHARGES OF FALSE SWEARING.  FULL OPPORTUNITY
FOR CROSS EXAMINATION OF THESE WITNESSES WAS AFFORDED AT THE HEARING
BEFORE THE BOARD, AND FULL OPPORTUNITY WAS ALSO AFFORDED FOR THE
PRESENTATION OF REBUTTAL TESTIMONY.  THE EVALUATION OF CREDIBILITY IS
PRIMARILY A MATTER FOR THE TRIER OF THE FACTS, AND A REVIEWING COURT
CANNOT DISTURB THAT EVALUATION UNLESS A MANIFEST ERROR HAS BEEN MADE. 
MOREOVER THE TESTIMONY OF THE WITNESSES AGAINST WHOM CHARGES ARE SAID
TO HAVE BEEN MADE WAS CONSISTENT WITH AND SUPPORTED BY MASSES OF OTHER
EVIDENCE  ...  ."  96 U.S. APP. D.C. 66, 100, 223 F.2D 531, 565. 

THE COURT OF APPEALS AFFIRMED THE ORDER OF THE BOARD.  IT SUSTAINED
SEC. 13(E) AGAINST THE CONTENTION THAT ITS STANDARDS WERE VAGUE AND
IRRATIONAL.  IT HELD THAT THE FINDINGS OF THE BOARD HAD BEEN
ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE, EXCEPT THAT IT STRUCK,
AS NOT BEING SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, THE FINDING
THAT THE SECRET PRACTICES WERE UNDERTAKEN FOR THE PURPOSE OF PROMOTING
THE OBJECTIVES, AND CONCEALING THE TRUE NATURE, OF PETITIONER; AND IT
ALSO STRUCK THE FINDING IN CONNECTION WITH REPORTING TO A FOREIGN
GOVERNMENT BECAUSE THE RECORD SUPPORTED ONLY A FINDING OF REPORTING BY
PARTY LEADERS "UPON OCCASION," NOT A FINDING WHICH IMPLIED A CONSTANT,
SYSTEMATIC REPORTING.  THE COURT, HOWEVER, FOUND THAT THE BOARD'S
CONCLUSION WAS SUPPORTED BY THE BASIC FINDINGS WHICH IT HAD AFFIRMED. 
WITH RESPECT TO PETITIONER'S OTHER ATTACKS ON THE CONSTITUTIONAL
VALIDITY OF THE STATUTE, THE COURT FOUND IT NECESSARY TO CONSIDER SOME
OF THE SO-CALLED "SANCTION" SECTIONS, SECS. 5, 6, 10, 11, 22, AND 25,
AS WELL AS SEC. 7, THE REGISTRATION SECTION.  IT HELD THAT THEY WERE
ALL CONSTITUTIONAL AND THEREFORE AFFIRMED THE ORDER OF THE BOARD. 
(FN4) 

THE CHALLENGE TO THE ACT ON WHICH THE ORDER WAS BASED PLAINLY RAISES
CONSTITUTIONAL QUESTIONS APPROPRIATE FOR THIS COURT'S CONSIDERATION,
AND SO WE BROUGHT THE CASE HERE.  349 U.S. 943.  AT THE THRESHOLD WE
ARE, HOWEVER, CONFRONTED BY A PARTICULAR CLAIM THAT THE COURT OF
APPEALS ERRED IN REFUSING TO RETURN THE CASE TO THE BOARD FOR
CONSIDERATION OF THE NEW EVIDENCE PROFFERED BY PETITIONER'S MOTION AND
AFFIDAVIT.  THIS NON-CONSTITUTIONAL ISSUE MUST BE MET AT THE OUTSET,
BECAUSE THE CASE MUST BE DECIDED ON A NON-CONSTITUTIONAL ISSUE, IF THE
RECORD CALLS FOR IT, WITHOUT REACHING CONSTITUTIONAL PROBLEMS.  PETERS
V. HOBBY, 349 U.S. 331. 

IN CONSIDERING THIS NON-CONSTITUTIONAL ISSUE RAISED BY DENIAL OF
PETITIONER'S MOTION, WE MUST AVOID ANY INTIMATION WITH RESPECT TO THE
OTHER ISSUES RAISED BY PETITIONER.  WE DO NOT SO INTIMATE BY CONCLUDING
THAT THE TESTIMONY OF THE THREE WITNESSES, AGAINST WHOM THE UNCONTESTED
CHALLENGE OF PERJURY WAS MADE, WAS NOT INCONSEQUENTIAL IN RELATION TO
THE ISSUES ON WHICH THE BOARD HAD TO PASS.  NO DOUBT A LARGE PART OF
THE RECORD CONSISTED OF DOCUMENTARY EVIDENCE.  HOWEVER, NOT ONLY WAS
THE HUMAN TESTIMONY SIGNIFICANT BUT THE DOCUMENTARY EVIDENCE WAS ALSO
LINKED TO THE ACTIVITIES OF THE PETITIONER AND TO THE ULTIMATE FINDING
OF THE BOARD BY HUMAN TESTIMONY, AND SUCH TESTIMONY WAS IN PART THAT OF
THESE THREE WITNESSES.  THE FACTS BEARING ON THE ISSUE ARE NOT IN
CONTROVERSY.  THE DIRECT TESTIMONY OF WITNESS CROUCH OCCUPIED 387 PAGES
OF THE TYPEWRITTEN TRANSCRIPT; THAT OF JOHNSON, 163 PAGES; AND THAT OF
MATUSOW, 118 PAGES.  THE ANNOTATED REPORT OF THE BOARD, IN WHICH
CITATIONS TO THE EVIDENCE WERE MADE TO ILLUSTRATE THE SUPPORT FOR ITS
FINDINGS, CONTAINED 36 REFERENCES TO THE TESTIMONY OF CROUCH, 25
REFERENCES TO THE TESTIMONY OF JOHNSON, AND 24 REFERENCES TO THE
TESTIMONY OF MATUSOW.  THESE REFERENCES WERE MADE IN SUPPORT OF EVERY
FINDING UNDER THE EIGHT CRITERIA OF SEC. 13(E) AND IT IS ALSO NOT TO BE
ASSUMED THAT THE EVIDENCE GIVEN BY THESE THREE WITNESSES PLAYED NO ROLE
IN THE BOARD'S FINDINGS OF FACT EVEN WHEN NOT SPECIFICALLY CITED. 
(FN5) TESTIMONY, FOR EXAMPLE, DIRECTED TOWARD PROVING THAT THE
COMMUNIST PARTY OF THE UNITED STATES WAS AN AGENCY UTILIZED BY A
FOREIGN GOVERNMENT TO UNDERMINE THE LOYALTY OF THE ARMED FORCES, AND TO
BE IN A POSITION TO PARALYZE SHIPPING AND PREVENT TRANSPORTATION OF
SOLDIERS AND WAR SUPPLIES THROUGH THE PANAMA CANAL, HAWAII, AND THE
PORTS OF SAN FRANCISCO AND NEW YORK IN TIME OF WAR, CANNOT BE DEEMED
INSIGNIFICANT IN SUCH A DETERMINATION AS THAT WHICH THE BOARD MADE IN
THIS PROCEEDING. 

THIS IS A PROCEEDING UNDER AN ACT WHICH CONGRESS CONCEIVED NECESSARY
FOR "THE SECURITY OF THE UNITED STATES AND TO THE EXISTENCE OF FREE
AMERICAN INSTITUTIONS  ...  ."  64 STAT., AT 989.  THE UNTAINTED
ADMINISTRATION OF JUSTICE IS CERTAINLY ONE OF THE MOST CHERISHED
ASPECTS OF OUR INSTITUTIONS.  ITS OBSERVANCE IS ONE OF OUR PROUDEST
BOASTS.  THIS COURT IS CHARGED WITH SUPERVISORY FUNCTIONS IN RELATION
TO PROCEEDINGS IN THE FEDERAL COURTS.  SEE MCNABB V. UNITED STATES, 318
U.S. 332.  THEREFORE, FASTIDIOUS REGARD FOR THE HONOR OF THE
ADMINISTRATION OF JUSTICE REQUIRES THE COURT TO MAKE CERTAIN THAT THE
DOING OF JUSTICE BE MADE SO MANIFEST THAT ONLY IRRATIONAL OR PERVERSE
CLAIMS OF ITS DISREGARD CAN BE ASSERTED. 

WHEN UNCONTESTED CHALLENGE IS MADE THAT A FINDING OF SUBVERSIVE
DESIGN BY PETITIONER WAS IN PART THE PRODUCT OF THREE PERJURIOUS
WITNESSES, IT DOES NOT REMOVE THE TAINT FOR A REVIEWING COURT TO FIND
THAT THERE IS AMPLE INNOCENT TESTIMONY TO SUPPORT THE BOARD'S
FINDINGS.  IF THESE WITNESSES IN FACT COMMITTED PERJURY IN TESTIFYING
IN OTHER CASES ON SUBJECT MATTER SUBSTANTIALLY LIKE THAT OF THEIR
TESTIMONY IN THE PRESENT PROCEEDINGS, THEIR TESTIMONY IN THIS
PROCEEDING IS INEVITABLY DISCREDITED AND THE BOARD'S DETERMINATION MUST
DULY TAKE THIS FACT INTO ACCOUNT.  WE CANNOT PASS UPON A RECORD
CONTAINING SUCH CHALLENGED TESTIMONY.  WE FIND IT NECESSARY TO DISPOSE
OF THE CASE ON THE GROUNDS WE DO, NOT IN ORDER TO AVOID A
CONSTITUTIONAL ADJUDICATION BUT BECAUSE THE FAIR ADMINISTRATION OF
JUSTICE REQUIRES IT.  SINCE REVERSAL IS THUS DEMANDED, HOWEVER, WE DO
NOT REACH THE CONSTITUTIONAL ISSUES. 

THE BASIS FOR CHALLENGING THE TESTIMONY WAS NOT IN EXISTENCE WHEN THE
PROCEEDINGS WERE CONCLUDED BEFORE THE BOARD.  PETITIONER SHOULD
THEREFORE BE GIVEN LEAVE TO MAKE ITS ALLEGATIONS BEFORE THE BOARD IN A
PROCEEDING UNDER SEC. 14(A) OF THE ACT.  THE ISSUE ON WHICH THE CASE
MUST BE RETURNED TO THE BOARD LIES WITHIN A NARROW COMPASS AND THE
BOARD HAS AMPLE SCOPE OF DISCRETION IN PASSING UPON PETITIONER'S
MOTION.  THE PURPOSE OF THIS REMAND, AS IS ITS REASON, IS TO MAKE
CERTAIN THAT THE BOARD BASES ITS FINDINGS UPON UNTAINTED EVIDENCE.  TO
THAT END IT MAY HOLD A HEARING TO ASCERTAIN THE TRUTH OF PETITIONER'S
ALLEGATIONS, AND IF THE TESTIMONY OF THE THREE WITNESSES IS
DISCREDITED, IT MUST NOT LEAVE THAT TESTIMONY PART OF THE RECORD. 
ALTERNATIVELY, THE BOARD MAY CHOOSE TO ASSUME THE TRUTH OF PETITIONER'S
ALLEGATIONS AND, WITHOUT FURTHER HEARING, EXPUNGE THE TESTIMONY OF
THESE WITNESSES FROM THE RECORD.  IN EITHER EVENT, THE BOARD MUST THEN
RECONSIDER ITS ORIGINAL DETERMINATION IN THE LIGHT OF THE RECORD AS
FREED FROM THE CHALLENGE THAT NOW BECLOUDS IT.    THE CASE IS REVERSED
AND REMANDED FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED
AND REMANDED. 

FN1  A "COMMUNIST-ACTION" ORGANIZATION IS DEFINED IN SEC. 3 OF THE
ACT AS: 

"(A)  ANY ORGANIZATION IN THE UNITED STATES (OTHER THAN A DIPLOMATIC
REPRESENTATIVE OR MISSION OF A FOREIGN GOVERNMENT ACCREDITED AS SUCH BY
THE DEPARTMENT OF STATE) WHICH (I) IS SUBSTANTIALLY DIRECTED,
DOMINATED, OR CONTROLLED BY THE FOREIGN GOVERNMENT OR FOREIGN
ORGANIZATION CONTROLLING THE WORLD COMMUNIST MOVEMENT REFERRED TO IN
OBJECTIVES OF SUCH WORLD COMMUNIST MOVEMENT AS REFERRED TO IN SECTION 2
OF THIS TITLE; AND: 

"(B)  ANY SECTION, BRANCH, FRACTION, OR CELL OF ANY ORGANIZATION
DEFINED IN SUBPARAGRAPH (A) OF THIS PARAGRAPH WHICH HAS NOT COMPLIED
WITH THE REGISTRATION REQUIREMENTS OF THIS TITLE."  64 STAT., AT 989. 

THE ACT ALSO DEFINES AND REGULATES "COMMUNIST-FRONT" ORGANIZATIONS,
BUT THESE SECTIONS OF THE ACT ARE NOT INVOLVED IN THE PRESENT
PROCEEDING. 

FN2  "IN DETERMINING WHETHER ANY ORGANIZATION IS A 'COMMUNIST-ACTION
ORGANIZATION,' THE BOARD SHALL TAKE INTO CONSIDERATION: 

"(1)  THE EXTENT TO WHICH ITS POLICIES ARE FORMULATED AND CARRIED OUT
AND ITS ACTIVITIES PERFORMED, PURSUANT TO DIRECTIVES OR TO EFFECTUATE
THE POLICIES OF THE FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION IN WHICH
IS VESTED, OR UNDER THE DOMINATION OR CONTROL OF WHICH IS EXERCISED,
THE DIRECTION AND CONTROL OF THE WORLD COMMUNIST MOVEMENT REFERRED TO
IN SECTION 2 OF THIS TITLE; AND: 

"(2)  THE EXTENT TO WHICH ITS VIEWS AND POLICIES DO NOT DEVIATE FROM
THOSE OF SUCH FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION; AND: 

"(3)  THE EXTENT TO WHICH IT RECEIVES FINANCIAL OR OTHER AID,
DIRECTLY OR INDIRECTLY, FROM OR AT THE DIRECTION OF SUCH FOREIGN
GOVERNMENT OR FOREIGN ORGANIZATION; AND: 

"(4)  THE EXTENT TO WHICH IT SENDS MEMBERS OR REPRESENTATIVES TO ANY
FOREIGN COUNTRY FOR INSTRUCTION OR TRAINING IN THE PRINCIPLES,
POLICIES, STRATEGY, OR TACTICS OF SUCH WORLD COMMUNIST MOVEMENT; AND: 

"(5)  THE EXTENT TO WHICH IT REPORTS TO SUCH FOREIGN GOVERNMENT OR
FOREIGN ORGANIZATION OR TO ITS REPRESENTATIVES; AND: 

"(6) THE EXTENT TO WHICH ITS PRINCIPAL LEADERS OR A SUBSTANTIAL
NUMBER OF ITS MEMBERS ARE SUBJECT TO OR RECOGNIZE THE DISCIPLINARY
POWER OF SUCH FOREIGN GOVERNMENT OR FOREIGN ORGANIZATION OR ITS
REPRESENTATIVES; AND: 

"(7)  THE EXTENT TO WHICH, FOR THE PURPOSE OF CONCEALING FOREIGN
DIRECTION, DOMINATION, OR CONTROL, OR OF EXPEDITING OR PROMOTING ITS
OBJECTIVES, (I) IT FAILS TO DISCLOSE, OR RESISTS EFFORTS TO OBTAIN
INFORMATION AS TO, ITS MEMBERSHIP (BY KEEPING MEMBERSHIP LISTS IN CODE,
BY INSTRUCTING MEMBERS TO REFUSE TO ACKNOWLEDGE MEMBERSHIP, OR BY ANY
OTHER METHOD); (II) ITS MEMBERS REFUSE TO ACKNOWLEDGE MEMBERSHIP
THEREIN; (III) IT FAILS TO DISCLOSE, OR RESISTS EFFORTS TO OBTAIN
INFORMATION AS TO, RECORDS OTHER THAN MEMBERSHIP LISTS; (IV) ITS
MEETINGS ARE SECRET; AND (V) IT OTHERWISE OPERATES ON A SECRET BASIS;
AND: 

"(8)  THE EXTENT TO WHICH ITS PRINCIPAL LEADERS OR A SUBSTANTIAL
NUMBER OF ITS MEMBERS CONSIDER THE ALLEGIANCE THEY OWE TO THE UNITED
STATES AS SUBORDINATE TO THEIR OBLIGATIONS TO SUCH FOREIGN GOVERNMENT
OR FOREIGN ORGANIZATION."  64 STAT., AT 999-1000. 

FN3  SECTION 14(A) OF THE ACT PROVIDES: 

"  ...  IF EITHER PARTY SHALL APPLY TO THE COURT FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE, AND SHALL SHOW TO THE SATISFACTION OF THE COURT
THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL, THE COURT MAY ORDER SUCH
ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE BOARD AND TO BE ADDUCED UPON
THE PROCEEDING IN SUCH MANNER AND UPON SUCH TERMS AND CONDITIONS AS TO
THE COURT MAY SEEM PROPER.  THE BOARD MAY MODIFY ITS FINDINGS AS TO THE
FACTS, BY REASON OF THE ADDITIONAL EVIDENCE SO TAKEN, AND IT SHALL FILE
SUCH MODIFIED OR NEW FINDINGS, WHICH, IF SUPPORTED BY THE PREPONDERANCE
OF THE EVIDENCE SHALL BE CONCLUSIVE, AND ITS RECOMMENDATIONS, IF ANY,
WITH RESPECT TO ACTION IN THE MATTER UNDER CONSIDERATION  ...  ."  64
STAT., AT 1001-1002. 

FN4  JUDGE BAZELON DISSENTED ON THE GROUND THAT THE REGISTRATION
PROVISION VIOLATED THE FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF
INCRIMINATION BECAUSE IT COMPELLED THE PERSON SIGNING IT TO IDENTIFY
HIMSELF AS A COMMUNIST PARTY FUNCTIONARY AND BECAUSE IT COMPELLED A
LISTING OF OFFICERS AND MEMBERS.  96 U.S. APP. D.C., AT 111, 223 F.2D,
AT 576. 

FN5  IN THIS CONNECTION THE FOLLOWING STATEMENT OF THE BOARD IN ITS
REPORT SHOULD BE NOTED: 

"IN MAKING OUR FINDINGS HEREIN, WE HAVE CONSIDERED AND WEIGHED ALL
THE EVIDENCE OF RECORD.  IN WEIGHING THE ATTORNEY GENERAL'S EVIDENCE,
WE HAVE CONSIDERED THAT CERTAIN OF HIS WITNESSES FALL INTO THE CATEGORY
OF 'INFORMERS' AND WE HAVE SCRUTINIZED THEIR TESTIMONY ACCORDINGLY; WE
HAVE CONSIDERED AND RESOLVED THE INCONSISTENCIES IN THE TESTIMONY OF
CERTAIN OF THE ATTORNEY GENERAL'S WITNESSES; WE HAVE CONSIDERED THE
TESTIMONY OF THE ATTORNEY GENERAL'S WITNESSES AGAINST THE BACKGROUND OF
THEIR VARIOUS ORGANIZATIONAL POSITIONS AND ACTIVITIES IN THE CPUSA
WHICH AFFORDED THE SOURCES OF THEIR KNOWLEDGE; AND WE HAVE HAD THE
BENEFIT OF THE PANEL'S OBSERVATION OF THEIR DEMEANOR WHILE TESTIFYING. 
VIEWING THESE CONSIDERATIONS IN THE LIGHT OF THE WHOLE RECORD, WE FIND
NO BASIS FOR DISREGARDING THE SUBSTANCE OF THEIR TESTIMONY." 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

ON NOVEMBER 22, 1950, THE ATTORNEY GENERAL PETITIONED THE SUBVERSIVE
ACTIVITIES CONTROL BOARD FOR AN ORDER DIRECTING THE COMMUNIST PARTY TO
REGISTER AS A COMMUNIST-ACTION ORGANIZATION, PURSUANT TO THE PROVISIONS
OF THE INTERNAL SECURITY ACT OF 1950.  ON APRIL 20, 1953, THE BOARD
UNANIMOUSLY DIRECTED THE COMMUNIST PARTY TO REGISTER, FINDING "UPON THE
OVERWHELMING WEIGHT OF THE EVIDENCE  ...  THE COMMUNIST PARTY IS
SUBSTANTIALLY DIRECTED, DOMINATED, AND CONTROLLED BY THE SOVIET UNION
... AND  ...  OPERATES PRIMARILY TO ADVANCE THE OBJECTIVES OF SUCH
WORLD COMMUNIST MOVEMENT." 

NEARLY TWO YEARS LATER, WHILE THE MATTER WAS BEFORE THE COURT OF
APPEALS, THE COMMUNIST PARTY FILED A MOTION FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE UNDER SEC. 14(A) OF THE INTERNAL SECURITY ACT.  THE
"NEW EVIDENCE" ATTACKED THE CREDIBILITY OF WITNESSES CROUCH, JOHNSON,
AND MATUSOW, 3 OF THE 22 WITNESSES FOR THE GOVERNMENT.  THE MOTION
CHARGED THAT CROUCH AND JOHNSON HAD PERJURED THEMSELVES IN THEIR
TESTIMONY IN SUCH OTHER CASES AS UNITED STATES V. KUZMA, UNITED STATES
V. BRIDGES, IN RE BURCK, AND UNITED STATES V. WEINBERG.  IT ALSO
CHARGED THAT MATUSOW HAD RECANTED HIS TESTIMONY IN COMMUNIST CASES AND
WAS WRITING A BOOK ENTITLED "BLACKLISTING (OR BLACKMAILING) WAS MY
BUSINESS." 

THE BOARD OPPOSED THE MOTION, STATING THAT THE TESTIMONY OF THE THREE
WITNESSES COULD "BE IGNORED IN TOTO AND THE ULTIMATE DETERMINATION  ...
WILL REMAIN AMPLY SUPPORTED BY EVIDENCE BOTH TESTIMONIAL AND
DOCUMENTARY IN CHARACTER  ...  .  THE COMMUNIST PARTY WOULD STILL BE
FOUND A COMMUNIST-ACTION ORGANIZATION BY OVERWHELMING EVIDENCE." 

THE COURT OF APPEALS DENIED THE MOTION WITHOUT OPINION.  HOWEVER, IN
ITS OPINION ON THE MERITS, THE COURT POINTED OUT THAT SIMILAR ATTACKS
HAD BEEN MADE ON THE CREDIBILITY OF THESE AS WELL AS OTHER WITNESSES
BEFORE THE BOARD.  FOR EXAMPLE, IN 194 PAGES OF CROSS-EXAMINATION
BEFORE THE BOARD, THE PARTY CHARGED THAT WITNESS JOHNSON HAD COMMITTED
PERJURY IN PENNSYLVANIA V. NELSON, IN RE YANISH, IN RE DMYTRYSHYN,
UNITED STATES V.EISLER, AND IN TESTIMONY BEFORE THE UN-AMERICAN
ACTIVITIES COMMITTEE.  THE 112-PAGE CROSS-EXAMINATION OF MATUSOW
LIKEWISE WAS LARGELY DEVOTED TO CHARGES OF PERJURY BEFORE VARIOUS
BOARDS AND COMMITTEES.  CROUCH WAS CROSS-EXAMINED FOR 810 PAGES,
PRACTICALLY ALL OF WHICH WAS DEVOTED TO AN ATTACK ON HIS CREDIBILITY
THROUGH HIS TESTIMONY IN OTHER PROCEEDINGS.   AS THE COURT OF APPEALS
CONCLUDED, "FULL OPPORTUNITY FOR CROSS EXAMINATION OF THESE WITNESSES
WAS AFFORDED AT THE HEARING BEFORE THE BOARD, AND FULL OPPORTUNITY WAS
ALSO AFFORDED FOR THE PRESENTATION OF REBUTTAL TESTIMONY  ...  .
MOREOVER THE TESTIMONY OF THE WITNESSES AGAINST WHOM CHARGES ARE SAID
TO HAVE BEEN MADE WAS CONSISTENT WITH AND SUPPORTED BY MASSES OF OTHER
EVIDENCE."  96 U.S. APP. D.C., AT 100, 223 F.2D, AT 565.  NOT ONLY DID
LITTLE OF THE CROSS-EXAMINATION RELATE TO THE EVIDENCE OFFERED ON
DIRECT, BUT THE PARTY INTRODUCED ONLY THREE WITNESSES IN REBUTTAL AND
NONE REFUTED ANY SPECIFIC TESTIMONY OF THE WITNESSES NOW CHALLENGED. 
THE COURT OF APPEALS AFFIRMED THE ISSUANCE OF THE ORDER BY THE BOARD. 

THE COMMUNIST PARTY BROUGHT THE CASE HERE ON APRIL 13, 1955, BY
PETITION FOR CERTIORARI.  THE RELATIVE UNIMPORTANCE OF THIS MOTION IN
THE EYES OF THE PARTY IS SHOWN BY THE FACT THAT ITS 131-PAGE PETITION
DEVOTES BUT 2 PAGES TO A DISCUSSION OF THIS POINT.  THE PARTY'S BRIEF
DEVOTES ONLY 4 1/2 OF ITS 270 PAGES TO THE MOTION.  STILL THE COURT NOW
SAYS THE COURT OF APPEALS "ERRED" IN ITS DENIAL OF THE MOTION AND
REMANDS THE CASE DIRECTLY TO THE BOARD FOR IT TO DETERMINE AGAIN THE
CREDIBILITY OF THESE THREE WITNESSES.  IT REFUSES TO PASS ON THE
IMPORTANT QUESTIONS RELATING TO THE CONSTITUTIONALITY OF THE INTERNAL
SECURITY ACT OF 1950, A BULWARK OF THE CONGRESSIONAL PROGRAM TO COMBAT
THE MENACE OF WORLD COMMUNISM.  BELIEVING THAT THE COURT HERE
DISREGARDS ITS PLAIN RESPONSIBILITY AND DUTY TO DECIDE THESE IMPORTANT
CONSTITUTIONAL QUESTIONS, I CANNOT JOIN IN ITS ACTION. 

I HAVE NOT FOUND ANY CASE IN THE HISTORY OF THE COURT WHERE IMPORTANT
CONSTITUTIONAL ISSUES HAVE BEEN AVOIDED ON SUCH A PRETEXT.  CERTAINLY
PETERS V. HOBBY, 349 U.S. 331, IS NO AUTHORITY FOR THIS ACTION, SINCE
THAT CASE COULD BE AND WAS FINALLY DISPOSED OF WITHOUT REACHING THE
CONSTITUTIONAL ISSUES.  HERE THE CASE WILL BE FINALLY DECIDED ONLY
AFTER OUR DECISION ON THE CONSTITUTIONAL QUESTIONS.  THE ACTION TODAY
IS TAKEN MERELY FOR DELAY AND CAN RESULT ONLY IN THE BOARD REAFFIRMING
THE ACTION.  IN FACT IT SO ADVISED THE COURT OF APPEALS AND THAT COURT
FOUND THAT ALL OF THE TESTIMONY OF THE QUESTIONABLE WITNESSES WAS
SUPPORTED BY "MASSES OF OTHER EVIDENCE." 

THE ALLEGATIONS OF THE MOTION ITSELF ARE ENTIRELY INADEQUATE IN THAT
THEY POINT TO NO PARTICULAR TESTIMONY BEFORE THE BOARD AS BEING FALSE. 
THERE IS NO OFFER TO DISPROVE ANY TESTIMONY GIVEN, AND NO FACT AT ISSUE
IN THE PROCEEDING IS CONTROVERTED.  AS TO CROUCH AND JOHNSON, THE
MOTION MERELY CITES ADDITIONAL CASES IN WHICH IT IS ALLEGED THAT THEIR
TESTIMONY WAS CONFLICTING.  THESE ALLEGATIONS ARE PURELY CUMULATIVE OF
THE WITNESSES' CROSS-EXAMINATION BEFORE THE BOARD.  WITH REGARD TO
MATUSOW, THE MOTION MENTIONS ONLY NEWSPAPER REPORTS AND A PRESS RELEASE
REFERRING TO THE STATEMENTS OF CERTAIN PERSONS THAT MATUSOW HAD TOLD
THEM THAT HE HAD LIED.  IGNORING THE OBVIOUS INADEQUACY OF THIS
ALLEGATION, WE MAY TAKE JUDICIAL NOTICE OF THE TWO CASES WHERE MATUSOW
SUBMITTED AFFIDAVITS STATING THAT HE HAD LIED DURING THE TRIAL, UNITED
STATES V. JENCKS AND UNITED STATES V. FLYNN.  IN THE JENCKS CASE, THE
TRIAL JUDGE CONCLUDED THAT MATUSOW HAD BEEN PAID BY A COMMUNIST SOURCE
TO RECANT AND THAT HIS ORIGINAL TESTIMONY WAS TRUE.  THE MOTION BASED
ENTIRELY ON MATUSOW'S RECANTATION WAS DENIED.  THIS WAS REAFFIRMED BY
THE COURT OF APPEALS, JENCKS V. UNITED STATES, 226 F.2D 540, CERT.
GRANTED, 350 U.S. 980.  IN THE FLYNN CASE, 130 F. SUPP. 412, THE TRIAL
JUDGE DENIED A SIMILAR MOTION AS TO 11 OF THE 13 DEFENDANTS.  TWO OF
THE DEFENDANTS IN FLYNN WERE GRANTED A NEW TRIAL ONLY BECAUSE MATUSOW
HAD TESTIFIED SPECIFICALLY TO PRIVATE CONVERSATIONS WITH THESE
DEFENDANTS WHICH DEMONSTRATED THEIR ADVOCACY OF THE FORCIBLE OVERTHROW
OF THE GOVERNMENT.  MATUSOW'S GENERAL TESTIMONY AGAINST OTHER
DEFENDANTS WAS NOT DISTURBED.  THESE CASES MAKE IT CLEAR THAT, EXCEPT
FOR THE SPECIAL CIRCUMSTANCES OF TWO DEFENDANTS IN THE FLYNN CASE, THE
LOWER COURTS HAVE NOT GRANTED NEW TRIALS IN CRIMINAL PROCEEDINGS
DESPITE THE RETRACTION BY MATUSOW OF SPECIFIC SWORN TESTIMONY GIVEN AT
THE TRIALS.  SEE ALSO UNITED STATES V. PARKER, 103 F.2D 857.  (FN1)
BUT THESE WERE CRIMINAL CASES WHERE PROOF OF GUILT MUST BE BEYOND A
REASONABLE DOUBT.  HERE, ONLY A PREPONDERANCE OF THE EVIDENCE IS
REQUIRED. 

MOTIONS TO ADDUCE ADDITIONAL EVIDENCE UNDER SEC. 14(A) ARE SIMILAR TO
MOTIONS TO ADDUCE EVIDENCE UNDER SEC. 10(E) OF THE NLRA AND THE SCOPE
OF OUR REVIEW IS THE SAME.  SUCH MOTIONS ARE ADDRESSED TO THE SOUND
DISCRETION OF THE COURTS OF APPEALS.  IN ORDER TO REVERSE WE MUST FIND
MORE THAN THAT THE COURT BELOW ERRED, BECAUSE IT "MUST NOT ONLY HAVE
BEEN IN ERROR BUT MUST ALSO HAVE ABUSED ITS JUDICIAL DISCRETION." 
LABOR BOARD V. INDIANA & M. ELECTRIC CO., 318 U.S. 9, 16.  IN THIS CASE
THE MOTION ITSELF WAS WHOLLY INADEQUATE AND EVEN IF THE TESTIMONY OF
ALL THREE CHALLENGED WITNESSES WERE OMITTED FROM THE RECORD THE RESULT
COULD NOT HAVE BEEN DIFFERENT.  THERE IS NO REASONABLE BASIS ON WHICH
WE COULD SAY THAT THE COURT OF APPEALS HAS ABUSED ITS DISCRETION. 

I ABHOR THE USE OF PERJURED TESTIMONY AS MUCH AS ANYONE, BUT WE MUST
RECOGNIZE THAT NEVER BEFORE HAVE MERE ALLEGATIONS OF PERJURY, SO
FLIMSILY SUPPORTED, BEEN CONSIDERED GROUNDS FOR REOPENING A PROCEEDING
OR GRANTING A NEW TRIAL.  (FN2)  THE COMMUNIST PARTY MAKES NO CLAIM
THAT THE GOVERNMENT KNOWINGLY USED FALSE TESTIMONY, AND IT IS FAR TOO
REALISTIC TO CONTEND THAT THE BOARD'S ACTION WILL BE ANY DIFFERENT ON
REMAND.  THE ONLY PURPOSE OF THIS PROCEDURAL MANEUVER IS TO GAIN
ADDITIONAL TIME BEFORE THE ORDER TO REGISTER CAN BECOME EFFECTIVE. 
THIS PROCEEDING HAS DRAGGED OUT FOR MANY YEARS NOW, AND THE FUNCTION OF
THE BOARD REMAINS SUSPENDED AND THE CONGRESSIONAL PURPOSE FRUSTRATED AT
A MOST CRITICAL TIME IN WORLD HISTORY.    IRONICALLY ENOUGH, WE ARE
RETURNING THE CASE TO A BOARD WHOSE VERY EXISTENCE IS CHALLENGED ON
CONSTITUTIONAL GROUNDS.  WE ARE ASKING THE BOARD TO PASS ON THE
CREDIBILITY OF WITNESSES AFTER WE HAVE REFUSED TO SAY WHETHER IT HAS
THE POWER TO DO SO.  THE CONSTITUTIONAL QUESTIONS ARE FAIRLY PRESENTED
HERE FOR OUR DECISION.  IF ALL OR ANY PART OF THE ACT IS
UNCONSTITUTIONAL, IT SHOULD BE DECLARED SO ON THE RECORD BEFORE US.  IF
NOT, THE NATION IS ENTITLED TO EFFECTIVE OPERATION OF THE STATUTE
DEEMED TO BE OF VITAL IMPORTANCE TO ITS WELL-BEING AT THE TIME IT WAS
PASSED BY THE CONGRESS.  I WOULD DECIDE THE QUESTIONS PRESENTED BY THIS
RECORD. 

FN1  DESPITE THE DIRECT ALLEGATIONS OF PERJURY IN THIS CASE, THIS
COURT REFUSED TO REVIEW THE DENIAL OF THE MOTION FOR A NEW TRIAL.  307
U.S. 642. 

FN2  IN AT LEAST THREE CASES THIS TERM WE DECLINED TO REVIEW STATE
CRIMINAL CONVICTIONS IN WHICH MUCH STRONGER ALLEGATIONS OF PERJURY WERE
MADE.  SEE REYNOLDS V. TEXAS, 350 U.S. 863; WHITENER V. SOUTH CAROLINA,
350 U.S. 861; AND COCO V. FLORIDA, 350 U.S. 828. 
..END :







BERRA V. UNITED STATES 351 U.S. 131 


NO. 60.  ARGUED MARCH 26, 1956.  - DECIDED APRIL 30, 1956.  - 221 F.2D
590, AFFIRMED. 


PETITIONER WAS INDICTED FOR WILFULLY ATTEMPTING TO EVADE FEDERAL
INCOME TAXES BY FILING WITH THE COLLECTOR "FALSE AND FRAUDULENT" TAX
RETURNS IN VIOLATION OF 26 U.S.C. (1952 ED.)  SEC.  145(B). THIS, IT IS
HERE ASSUMED, IS ALSO A VIOLATION OF 26 U.S.C. (1952 ED.)  SEC. 
3616(A), THE PENALTY FOR THE VIOLATION OF WHICH IS LESSER THAN FOR A
VIOLATION OF SEC. 145(B).  PETITIONER WAS CONVICTED AND SENTENCED TO
IMPRISONMENT GREATER THAN THE MAXIMUM POSSIBLE HAD THE CONVICTION BEEN
UNDER SEC. 3616(A).  HELD:  IT WAS NOT ERROR FOR THE TRIAL JUDGE TO
REFUSE TO GIVE TO THE JURY AN INSTRUCTION REQUESTED BY PETITIONER THAT
A VERDICT OF GUILTY OF THE "LESSER CRIME" UNDER SEC. 3616(A) WOULD BE
PERMISSIBLE.  PP. 132-135. 

(A)  IT IS HERE ASSUMED, ARGUENDO, THAT SEC. 3616(A) IS APPLICABLE TO
INCOME TAX RETURNS.  P. 133. 

(B)  THE CONTENTION THAT, SINCE THERE WAS NO DIFFERENCE IN THE PROOF
REQUIRED TO ESTABLISH VIOLATIONS OF SECS. 145(B) AND 3616(A), THE
INDICTMENT MUST BE TAKEN AS CHARGING VIOLATIONS OF BOTH SECTIONS, AND
THAT UNDER RULE 31(C) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE THE
JURY SHOULD HAVE BEEN PERMITTED TO MAKE THE CHOICE BETWEEN THE TWO
CRIMES, CANNOT BE SUSTAINED.  PP. 133-134. 

(C)  RULE 31(C) WAS NOT INTENDED TO CHANGE THE JURY'S TRADITIONAL
FUNCTION OF DECIDING ONLY THE ISSUES OF FACT AND TAKING THE LAW AS
GIVEN BY THE COURT.  P. 134. 

(D)  WHETHER SEC. 3616(A) RATHER THAN SEC. 145(B) SHOULD APPLY WAS
NOT FOR THE JURY TO DETERMINE.  PP. 134-135. 

BERRA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CHARGED, IN A THREE-COURT INDICTMENT, WITH WILFULLY
ATTEMPTING TO EVADE FEDERAL INCOME TAXES FOR 1951, 1952, AND 1953 BY
FILING WITH THE COLLECTOR "FALSE AND FRAUDULENT" TAX RETURNS, "IN
VIOLATION OF SECTION 145(B), TITLE 26, UNITED STATES CODE."  (FN1)
THAT SECTION OF THE INTERNAL REVENUE CODE OF 1939, 53 STAT. 63,
PROVIDED: 

"ANY PERSON  ...  WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR
DEFEAT ANY TAX IMPOSED BY THIS CHAPTER OR THE PAYMENT THEREOF, SHALL,
IN ADDITION TO OTHER PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY
AND, UPON CONVICTION THEREOF, BE FINED NOT MORE THAN $10,000, OR
IMPRISONED FOR NOT MORE THAN FIVE YEARS, OR BOTH, TOGETHER WITH THE
COSTS OF PROSECUTION." 

FOR ANY PERSON TO DELIVER TO THE COLLECTOR "ANY FALSE OR FRAUDULENT
LIST, RETURN, ACCOUNT, OR STATEMENT, WITH INTENT TO DEFEAT OR EVADE THE
VALUATION, ENUMERATION, OR ASSESSMENT INTENDED TO BE MADE  ...  ."  THE
PENALTY FOR VIOLATION OF SEC. 3616(A), HOWEVER, WAS A FINE OF NOT MORE
THAN $1,000, OR IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BOTH, TOGETHER
WITH THE COSTS OF PROSECUTION. 

AT THE CLOSE OF THE TRIAL JUDGE'S CHARGE TO THE JURY, PETITIONER
ASKED THAT THE JURY BE INSTRUCTED WITH RESPECT TO EACH COUNT THAT A
VERDICT OF GUILTY OF THE "LESSER CRIME" UNDER SEC. 3616(A) WOULD BE
PERMISSIBLE.  (FN2)  NO MOTIONS ADDRESSED TO THE VALIDITY OF THE
INDICTMENT, JUDGMENT OF CONVICTION, OR SENTENCE UNDER SEC. 145(B) WERE
MADE BEFORE, DURING, OR AFTER TRIAL, AND WE READ THE REQUESTED
INSTRUCTION AS AIMED AT LEAVING TO THE JURY THE QUESTION OF WHETHER THE
DEFENDANT SHOULD BE CONVICTED UNDER SEC. 145(B) OR SEC. 3616(A), IF THE
JURY FOUND HIM GUILTY.  THE INSTRUCTION WAS REFUSED, AND, AFTER
CONVICTION, PETITIONER WAS SENTENCED TO FOUR YEARS' IMPRISONMENT ON
EACH COUNT, THE SENTENCES TO RUN CONCURRENTLY.  THUS PETITIONER HAS
BEEN SENTENCED TO IMPRISONMENT GREATER THAN THE MAXIMUM POSSIBLE HAD
THE CONVICTION BEEN UNDER SEC. 3616(A) ALONE.  THE COURT OF APPEALS
AFFIRMED, 221 F.2D 590, AND WE GRANTED CERTIORARI, 350 U.S. 910,
LIMITED TO THE QUESTION OF WHETHER IT WAS ERROR FOR THE TRIAL JUDGE TO
REFUSE TO GIVE THE REQUESTED INSTRUCTION. 

THE COURT OF APPEALS, IN AFFIRMING THE CONVICTION, HELD THAT SEC.
3616(A) DID NOT APPLY TO INCOME TAX RETURNS, AND THAT ANY INSTRUCTION
RELATING TO THAT SECTION WOULD THEREFORE HAVE BEEN IRRELEVANT UNDER THE
EVIDENCE IN THIS CASE.  (FN3)  BOTH PARTIES AGREE, HOWEVER, THAT SEC.
3616(A) WAS APPLICABLE TO INCOME TAX RETURNS, AND WE SHALL ASSUME,
ARGUENDO, THE CORRECTNESS OF THAT INTERPRETATION OF THE STATUTE. 

RULE 31(C) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PROVIDES THAT A
DEFENDANT MAY BE FOUND GUILTY OF AN OFFENSE "NECESSARILY INCLUDED IN
THE OFFENSE CHARGED."  (FN4)  IN A CASE WHERE SOME OF THE ELEMENTS OF
THE CRIME CHARGED THEMSELVES CONSTITUTE A LESSER CRIME, THE DEFENDANT,
IF THE EVIDENCE JUSTIFIED IT, WOULD NO DOUBT BE ENTITLED TO AN
INSTRUCTION WHICH WOULD PERMIT A FINDING OF GUILT OF THE LESSER
OFFENSE.  SEE STEVENSON V. UNITED STATES, 162 U.S. 313.  BUT THIS IS
NOT SUCH A CASE.  FOR HERE THE METHOD OF EVASION CHARGED WAS THE FILING
OF A FALSE RETURN, AND IT IS APPARENT THAT THE FACTS NECESSARY TO PROVE
THAT PETITIONER "WILLFULLY" ATTEMPTED TO EVADE TAXES BY FILING A FALSE
RETURN (SEC. 145(B)) WERE IDENTICAL WITH THOSE REQUIRED TO PROVE THAT
HE DELIVERED A FALSE RETURN WITH "INTENT" TO EVADE TAXES (SEC.
3616(A)).  IN THIS INSTANCE SECS.  145(B) AND 3616(A) COVERED PRECISELY
THE SAME GROUND.  (FN5) 

PETITIONER CONTENDS THAT HE WAS NEVERTHELESS ENTITLED TO THE
REQUESTED INSTRUCTION.  HE ARGUES THAT SINCE THERE WAS NO DIFFERENCE IN
THE PROOF REQUIRED TO ESTABLISH VIOLATIONS OF SECS. 145(B) AND 3616(A),
THE INDICTMENT MUST BE TAKEN AS CHARGING VIOLATIONS OF BOTH SECTIONS,
AND THE JURY UNDER RULE 31(C) SHOULD HAVE BEEN PERMITTED TO MAKE THE
CHOICE BETWEEN THE TWO CRIMES.  WE DO NOT AGREE. 

THE ROLE OF THE JURY IN A FEDERAL CRIMINAL CASE IS TO DECIDE ONLY THE
ISSUES OF FACT, TAKING THE LAW AS GIVEN BY THE COURT.  SPARF V. UNITED
STATES, 156 U.S. 51, 102.  CERTAINLY RULE 31(C) WAS NEVER INTENDED TO
CHANGE THIS TRADITIONAL FUNCTION OF THE JURY.  (FN6)  HERE, WHETHER
SEC. 145(B) OR SEC. 3616(A) BE DEEMED TO GOVERN, THE FACTUAL ISSUES TO
BE SUBMITTED TO THE JURY WERE THE SAME; THE INSTRUCTION REQUESTED BY
PETITIONER WOULD NOT HAVE ADDED ANY OTHER SUCH ISSUE FOR THE JURY'S
DETERMINATION.  (FN7)  WHEN THE JURY RESOLVED THOSE ISSUES AGAINST
PETITIONER, ITS FUNCTION WAS EXHAUSTED, SINCE THERE IS HERE NO
STATUTORY PROVISION GIVING TO THE JURY THE RIGHT TO DETERMINE THE
PUNISHMENT TO BE IMPOSED AFTER THE DETERMINATION OF GUILT.  (FN8)
WHATEVER OTHER QUESTIONS MIGHT HAVE BEEN RAISED AS TO THE VALIDITY OF
PETITIONER'S CONVICTION AND SENTENCE, BECAUSE OF THE ASSUMED
OVERLAPPING OF SECS. 145(B) AND 3616(A), WERE QUESTIONS OF LAW FOR THE
COURT.  NO SUCH QUESTIONS ARE PRESENTED HERE. 

THE ONLY QUESTION BEFORE US IS WHETHER THE JURY SHOULD HAVE BEEN
ALLOWED TO DECIDE WHETHER IT WOULD APPLY SEC. 3616(A) RATHER THAN SEC.
145(B), AND THAT WE HOLD WAS NOT FOR THE JURY.  IT WAS, THEREFORE, NOT
ERROR TO REFUSE THE REQUESTED INSTRUCTION.  AFFIRMED. 

FN1  THIS CASE ARISES UNDER THE INTERNAL REVENUE CODE OF 1939.  THE
7207, 68A STAT. 851, 853. 

FN2  "DEFENDANT'S REQUESTED INSTRUCTION NO. 12. 

"UNDER THE LAW YOU MAY FIND THE DEFENDANT GUILTY OF A LESSER CRIME
THAN THE CRIME CHARGED IN EACH COUNT OF THE INCOME TAX INDICTMENT. 

"THE STATUTE UPON WHICH THE LESSER CRIME IS BASED, OMITTING THAT PART
OF THE ACT WHICH DOES NOT APPLY IN THIS CASE, READS AS FOLLOWS: 

"WHENEVER ANY PERSON  ...  DELIVERS OR DISCLOSES TO A COLLECTOR  ...
ANY FALSE OR FRAUDULENT  ...  RETURN  ...  WITH INTENT TO DEFEAT OR
EVADE THE  ...  ASSESSMENT INTENDED TO BE MADE, SHALL BE GUILTY OF A
MISDEMEANOR. 

"UNDER COUNT I IF YOU FIND AND BELIEVE FROM THE EVIDENCE THAT THE
DEFENDANT DELIVERED, CAUSED TO BE DELIVERED OR DISCLOSED TO THE
COLLECTOR OF INTERNAL REVENUE FOR THE FIRST COLLECTION DISTRICT OF
MISSOURI, A FALSE INCOME TAX RETURN WITH INTENT TO DEFEAT OR EVADE THE
ASSESSMENT INTENDED TO BE MADE, YOU WILL FIND HIM GUILTY OF THIS LESSER
CRIME."  (THIS PARAGRAPH WAS REPEATED FOR COUNTS II AND III.) 

FN3  IN SO HOLDING THE COURT OF APPEALS FOLLOWED ITS EARLIER DECISION
IN DILLON V. UNITED STATES, 218 F.2D 97. 

FN4  "RULE 31.  VERDICT  ...  (C) CONVICTION OF LESS OFFENSE.  THE
DEFENDANT MAY BE FOUND GUILTY OF AN OFFENSE NECESSARILY INCLUDED IN THE
OFFENSE CHARGED OR OF AN ATTEMPT TO COMMIT EITHER THE OFFENSE CHARGED
OR AN OFFENSE NECESSARILY INCLUDED THEREIN IF THE ATTEMPT IS AN
OFFENSE." 

FN5  COMPARE SEC. 7207 OF THE INTERNAL REVENUE CODE OF 1954, UNDER
WHICH THE WILFUL FILING OF A FALSE RETURN NO LONGER REQUIRES THE
ELEMENT OF AN "INTENT TO DEFEAT OR EVADE" TAXES, AS WAS SO UNDER THE
FORMER SEC. 3616(A). 

FN6  THE NOTES OF THE ADVISORY COMMITTEE STATE THAT RULE 31(C) "IS A
RESTATEMENT OF EXISTING LAW."   THE PRECEDING "LESSER OFFENSE" STATUTES
WERE ACT OF JUNE 1, 1872, 17 STAT. 196; R.S. SEC. 1035; 18 U.S.C. SEC.
565.  CF. STEVENSON V. UNITED STATES, SUPRA, AT PP. 315, 322, 323;
SPARF V. UNITED STATES, SUPRA, AT P. 103; EKBERG V. UNITED STATES, 167
F.2D 380, 385. 

FN7  INDEED, HAD THERE BEEN ANY SEPARATE FACTUAL ISSUES UNDER SEC.
3616(A), IT IS PLAIN THAT THE REQUESTED INSTRUCTION WOULD HAVE BEEN
INADEQUATE TO RAISE THEM FOR THE JURY. 

FN8  CF. ANDRES V. UNITED STATES, 333 U.S. 740. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE PETITIONER HERE WAS CONVICTED ON THREE COUNTS UNDER AN INDICTMENT
CHARGING THAT HE "DID WILLFULLY AND KNOWINGLY ATTEMPT TO EVADE AND
DEFEAT A LARGE PART OF THE INCOME TAX DUE AND OWING BY HIM AND HIS WIFE
...  BY FILING  ...  A FALSE AND FRAUDULENT JOINT INCOME TAX RETURN
...  .  IN VIOLATION OF SECTION 145(B), TITLE 26, UNITED STATES CODE." 

"ANY PERSON WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR DEFEAT
ANY TAX IMPOSED BY THIS CHAPTER  ...  SHALL, IN ADDITION TO OTHER
PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY AND, UPON CONVICTION
THEREOF, BE FINED NOT MORE THAN $10,000, OR IMPRISONED FOR NOT MORE
THAN FIVE YEARS, OR BOTH, TOGETHER WITH THE COSTS OF PROSECUTION." 
(FN1) 

THE OFFENSE CHARGED IN THE INDICTMENT, FILING A FRAUDULENT RETURN,
COULD BE HELD TO BE PROSCRIBED BY SEC. 145(B) BECAUSE OF THE PHRASE "IN
ANY MANNER."  BUT CERTAINLY IT FALLS SQUARELY WITHIN THE SPECIFIC
LANGUAGE OF 26 U.S.C. SEC. 3616(A), WHICH PROVIDES THAT ANY PERSON
WHO: 

"DELIVERS OR DISCLOSES TO THE COLLECTOR OR DEPUTY ANY FALSE OR
FRAUDULENT LIST, RETURN, ACCOUNT, OR STATEMENT, WITH INTENT TO DEFEAT
OR EVADE THE  ...  ASSESSMENT INTENDED TO BE MADE  ...  SHALL BE FINED
NOT EXCEEDING $1,000, OR BE IMPRISONED NOT EXCEEDING ONE YEAR, OR BOTH,
AT THE DISCRETION OF THE COURT, WITH COSTS OF PROSECUTION."  (FN2) 

AT AN APPROPRIATE TIME THE PETITIONER ASKED THE TRIAL JUDGE TO CHARGE
THE JURY THAT IF THE ALLEGATIONS OF THE INDICTMENT HAD BEEN PROVEN THEY
SHOULD FIND THE PETITIONER GUILTY OF A MISDEMEANOR UNDER SEC. 3616(A). 
ALTHOUGH SEC. 3616(A) UNAMBIGUOUSLY MAKES THE CONDUCT CHARGED A
MISDEMEANOR PUNISHABLE BY NO MORE THAN ONE YEAR IN PRISON, THE TRIAL
JUDGE APPARENTLY FELT THAT HE WAS COMPELLED TO TREAT THE OFFENSE AS A
FELONY BECAUSE OF THE STATEMENT IN THE INDICTMENT THAT THE CONDUCT
CHARGED WAS "IN VIOLATION OF SECTION 145(B)  ...  ."  (FN3)  THE JUDGE
NOT ONLY REFUSED THE REQUESTED INSTRUCTION, BUT AFTER THE JURY RETURNED
A VERDICT OF GUILTY, HE SENTENCED PETITIONER TO SERVE FOUR YEARS IN
PRISON ON EACH OF THE THREE COUNTS, THE SENTENCES TO RUN CONCURRENTLY. 

REGARDLESS OF WHETHER IT WAS ERROR TO REFUSE THE REQUESTED
INSTRUCTION, THE RECORD RAISES A SERIOUS QUESTION AS TO WHETHER THE
FOUR-YEAR SENTENCE ON EACH COUNT WAS LAWFULLY IMPOSED.  THE COURT'S
OPINION TAKES THE POSITION THAT NO PROPER CHALLENGES TO THE SENTENCE
UNDER THE FELONY STATUTE WERE RAISED BELOW AND HENCE THAT "NO SUCH
QUESTIONS ARE PRESENTED HERE."  (FN4)  IN MY JUDGMENT THE REQUESTED
INSTRUCTION WAS ADEQUATE TO CALL THE TRIAL JUDGE'S ATTENTION TO
PETITIONER'S CONTENTION THAT THE OFFENSE CHARGED WAS NOT A FELONY BUT A
MISDEMEANOR.  BUT EVEN IF THE QUESTION SHOULD HAVE BEEN RAISED AGAIN
WHEN THE JUDGE ANNOUNCED THE SENTENCE, "PLAIN ERRORS OR DEFECTS
AFFECTING SUBSTANTIAL RIGHTS MAY BE NOTICED ALTHOUGH THEY WERE NOT
BROUGHT TO THE ATTENTION OF THE COURT."  FED.  RULES CRIM. PROC.,
52(B).  SEE ALSO WIBORG V. UNITED STATES, 163 U.S. 632, 658.  SINCE I
THINK PETITIONER IS RIGHT IN SAYING THE OFFENSE CHARGED WAS ONLY A
MISDEMEANOR, I THINK WE SHOULD CORRECT THE PLAIN ERROR OF THE TRIAL
JUDGE IN SENTENCING PETITIONER UNDER THE FELONY STATUTE. 

THE GOVERNMENT ADMITS HERE AND THE COURT ASSUMES THAT FILING A FALSE
AND FRAUDULENT INCOME TAX RETURN IS BOTH A MISDEMEANOR UNDER SEC.
3616(A) AND A FELONY UNDER SEC.  145(B).  THE GOVERNMENT ARGUES THAT
THE ACTION OF THE TRIAL JUDGE MUST BE UPHELD BECAUSE "THE GOVERNMENT
MAY CHOOSE TO INVOKE EITHER APPLICABLE LAW," AND "THE PROSECUTION MAY
BE FOR A FELONY EVEN THOUGH THE GOVERNMENT COULD HAVE ELECTED TO
PROSECUTE FOR A MISDEMEANOR."  ELECTION BY THE GOVERNMENT OF COURSE
MEANS ELECTION BY A PROSECUTING ATTORNEY OR THE ATTORNEY GENERAL. 
(FN5)  I OBJECT TO ANY SUCH INTERPRETATION OF SECS. 145 AND 3616.  I
THINK WE SHOULD CONSTRUE THESE SECTIONS SO AS NOT TO PLACE CONTROL OVER
THE LIBERTY OF CITIZENS IN THE UNREVIEWABLE DISCRETION OF ONE
INDIVIDUAL - A RESULT WHICH SEEMS TO ME TO BE WHOLLY INCOMPATIBLE WITH
OUR SYSTEM OF JUSTICE.  SINCE CONGRESS HAS SPECIFICALLY MADE THE
CONDUCT CHARGED IN THE INDICTMENT A MISDEMEANOR, I WOULD NOT PERMIT
PROSECUTION FOR A FELONY UNDER THE BROAD LANGUAGE OF SEC. 145(B). 
CRIMINAL STATUTES, WHICH FORFEIT LIFE, LIBERTY OR PROPERTY, SHOULD BE
CONSTRUED NARROWLY, NOT BROADLY. 

SO FAR AS I KNOW, THIS COURT HAS NEVER APPROVED THE ARGUMENT THE
GOVERNMENT MAKES HERE.  IT CERTAINLY DID NOT DO SO IN UNITED STATES V.
BEACON BRASS CO., 344 U.S. 43, UPON WHICH THE GOVERNMENT SEEMS TO
RELY.  IN THAT CASE THE COURT SAID: 

"WE HAVE BEFORE US TWO STATUTES, EACH OF WHICH PROSCRIBES CONDUCT NOT
COVERED BY THE OTHER, BUT WHICH OVERLAP IN A NARROW AREA ILLUSTRATED BY
THE INSTANT CASE.  AT LEAST WHERE DIFFERENT PROOF IS REQUIRED FOR EACH
OFFENSE, A SINGLE ACT OR TRANSACTION MAY VIOLATE MORE THAN ONE CRIMINAL
STATUTE ...  ."  344 U.S., AT 45. 

HERE, HOWEVER, UNDER THE COURT'S OPINION AND THE GOVERNMENT'S
ARGUMENT, TWO STATUTES PROSCRIBE IDENTICAL CONDUCT AND NO "DIFFERENT
PROOF" WAS REQUIRED TO CONVICT PETITIONER OF THE FELONY THAN WOULD HAVE
BEEN REQUIRED TO CONVICT HIM OF THE MISDEMEANOR.  THE GOVERNMENT'S
WHOLE ARGUMENT RESTS ON THE STARK PREMISE THAT CONGRESS HAS LEFT TO THE
DISTRICT ATTORNEY OR THE ATTORNEY GENERAL THE POWER TO SAY WHETHER THE
JUDGE AND JURY MUST PUNISH IDENTICAL CONDUCT AS A FELONY OR AS A
MISDEMEANOR.    A BASIC PRINCIPLE OF OUR CRIMINAL LAW IS THAT THE
GOVERNMENT ONLY PROSECUTES PEOPLE FOR CRIMES UNDER STATUTES PASSED BY
CONGRESS WHICH FAIRLY AND CLEARLY DEFINE THE CONDUCT MADE CRIMINAL AND
THE PUNISHMENT WHICH CAN BE ADMINISTERED.  (FN6)  THIS BASIC PRINCIPLE
IS FLOUTED IF EITHER OF THESE STATUTES CAN BE SELECTED AS THE
CONTROLLING LAW AT THE WHIM OF THE PROSECUTING ATTORNEY OR THE ATTORNEY
GENERAL.  "FOR, THE VERY IDEA THAT ONE MAN MAY BE COMPELLED TO HOLD HIS
LIFE, OR THE MEANS OF LIVING, OR ANY MATERIAL RIGHT ESSENTIAL TO THE
ENJOYMENT OF LIFE, AT THE MERE WILL OF ANOTHER, SEEMS TO BE INTOLERABLE
IN ANY COUNTRY WHERE FREEDOM PREVAILS, AS BEING THE ESSENCE OF SLAVERY
ITSELF."  YICK WO V. HOPKINS, 118 U.S. 356, 370. 

A CONGRESSIONAL DELEGATION OF SUCH VAST POWER TO THE PROSECUTING
DEPARTMENT WOULD RAISE SERIOUS CONSTITUTIONAL QUESTIONS.  OF COURSE IT
IS TRUE THAT UNDER OUR SYSTEM CONGRESS MAY VEST THE JUDGE AND JURY WITH
BROAD POWER TO SAY HOW MUCH PUNISHMENT SHALL BE IMPOSED FOR A
PARTICULAR OFFENSE.  BUT IT IS QUITE DIFFERENT TO VEST SUCH POWERS IN A
PROSECUTING ATTORNEY.  A JUDGE AND JURY ACT UNDER PROCEDURAL RULES
CAREFULLY PRESCRIBED TO PROTECT THE LIBERTY OF THE INDIVIDUAL.  THEIR
JUDGMENTS AND VERDICTS ARE REACHED AFTER A PUBLIC TRIAL IN WHICH A
DEFENDANT HAS THE RIGHT TO BE REPRESENTED BY AN ATTORNEY.  NO SUCH
PROTECTIONS ARE THROWN AROUND DECISIONS BY A PROSECUTING ATTORNEY. 
SUBSTITUTION OF THE PROSECUTOR'S CAPRICE FOR THE ADJUDICATORY PROCESS
IS AN ACTION I AM NOT WILLING TO ATTRIBUTE TO CONGRESS IN THE ABSENCE
OF CLEAR COMMAND.  OUR SYSTEM OF JUSTICE RESTS ON THE CONCEPTION OF
IMPERSONALITY IN THE CRIMINAL LAW.  THIS GREAT PROTECTION TO FREEDOM IS
LOST IF THE GOVERNMENT IS RIGHT IN ITS CONTENTION HERE.  SEE DISSENTING
OPINION IN ROSENBERG V. UNITED STATES, 346 U.S. 273, 306. 

THE GOVERNMENT'S CONTENTION HERE ALSO CHALLENGES OUR CONCEPT THAT ALL
PEOPLE MUST BE TREATED ALIKE UNDER THE LAW.  THIS PRINCIPLE MEANS THAT
NO DIFFERENT OR HIGHER PUNISHMENT SHOULD BE IMPOSED UPON ONE THAN UPON
ANOTHER IF THE OFFENSE AND THE CIRCUMSTANCES ARE THE SAME.  IT IS TRUE
THAT THERE MAY BE DIFFERENCES DUE TO DIFFERENT APPRAISALS GIVEN THE
CIRCUMSTANCES OF DIFFERENT CASES BY DIFFERENT JUDGES AND JURIES.  BUT
IN THESE CASES THE DISCRETION IN REGARD TO CONVICTION AND PUNISHMENT
FOR CRIME IS EXERCISED BY THE JUDGE AND JURY IN THEIR CONSTITUTIONAL
CAPACITIES IN THE ADMINISTRATION OF JUSTICE. 

I WOULD REVERSE THIS CASE OR AT LEAST REMAND FOR RESENTENCING UNDER
THE MISDEMEANOR STATUTE, SEC. 3616(A). 

FN1  INTERNAL REVENUE CODE OF 1939, 53 STAT. 63.  CF. SEC. 7201,
INTERNAL REVENUE CODE OF 1954, 68A STAT. 851. 

FN2  INTERNAL REVENUE CODE OF 1939, 53 STAT. 440.  CF. SECS. 7206(1),
7207, INTERNAL REVENUE CODE OF 1954. 

FN3  BUT SEE WILLIAMS V. UNITED STATES, 168 U.S. 382, 389; UNITED
STATES V. HUTCHESON, 312 U.S. 219, 229; FED. RULES CRIM. PROC., 7(C),
WHICH PROVIDES IN PART THAT:  "THE INDICTMENT  ...  SHALL STATE FOR
EACH COUNT THE OFFICIAL OR CUSTOMARY CITATION OF THE STATUTE  ...
WHICH THE DEFENDANT IS ALLEGED THEREIN TO HAVE VIOLATED.  ERROR IN THE
CITATION OR ITS OMISSION SHALL NOT BE GROUND FOR DISMISSAL OF THE
INDICTMENT  ...  OR FOR REVERSAL OF A CONVICTION IF THE ERROR OR
OMISSION DID NOT MISLEAD THE DEFENDANT TO HIS PREJUDICE."  CF. COLE V.
ARKANSAS, 333 U.S. 196. 

FN4  APPARENTLY THE COURT MEANS BY THIS TO LEAVE OPEN TO PETITIONER
THE OPPORTUNITY TO CHALLENGE HIS SENTENCE BY A MOTION TO CORRECT IT
UNDER 28 U.S.C. SEC. 2255.  OF COURSE I AGREE THAT A MOTION UNDER THAT
HAVE IT SETTLED NOW. 

FN5  THIS WOULD ALWAYS FOLLOW WHERE AN INFORMATION IS USED.  AND
WHERE THERE IS AN INDICTMENT BY GRAND JURY OF COURSE THE INDICTMENT IS
DRAWN BY THE PROSECUTING ATTORNEY, SINCE GRAND JURIES NORMALLY ARE NOT
FAMILIAR WITH THE APPLICABLE STATUTES.  THUS WHERE A PROSECUTING
OFFICER SEEKS AN INDICTMENT UNDER A STATUTE MAKING AN ATTEMPT TO EVADE
TAXES IN ANY MANNER A FELONY, IT WOULD BE A RARE GRAND JUROR INDEED WHO
WOULD BE SUFFICIENTLY FAMILIAR WITH THE INTERNAL REVENUE CODE TO
SUGGEST THAT IT MIGHT BE BETTER TO BRING THE INDICTMENT UNDER SEC.
3616(A). 

FN6  SEE, E.G., INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S.
216; CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, 391-392. 
..END :









SQUIRE V. CAPOEMAN 351 U.S. 1 


NO. 134.  ARGUED JANUARY 19, 1956.  - DECIDED APRIL 23, 1956.  - 220
F.2D 349, AFFIRMED. 


INCOME FROM THE SALE BY THE GOVERNMENT OF STANDING TIMBER ON ALLOTTED
FOREST LAND ON THE QUINAIELT INDIAN RESERVATION HELD IN TRUST BY THE
GOVERNMENT FOR A NONCOMPETENT QUINAIELT INDIAN MAY NOT BE SUBJECTED TO
A CAPITAL-GAINS TAX CONSISTENTLY WITH APPLICABLE TREATY AND STATUTORY
PROVISIONS AND THE GOVERNMENT'S ROLE AS TRUSTEE AND GUARDIAN FOR SUCH
INDIAN.  PP. 2-10. 

(A)  THOUGH INDIANS ARE CITIZENS AND ARE SUBJECT TO INCOME TAXES, IT
CANNOT BE SAID THAT, IN THE CIRCUMSTANCES OF THIS CASE, THE TAXABILITY
OF THIS INDIAN IS UNAFFECTED BY THE TREATY WITH THE QUINAIELT INDIANS,
THE GENERAL ALLOTMENT ACT OR THE TRUST PATENT UNDER WHICH THIS LAND IS
HELD IN TRUST FOR THE INDIAN.  PP. 5-6. 

(B)  THE PROVISION OF SEC. 5 OF THE GENERAL ALLOTMENT ACT OF 1887
THAT LANDS ON INDIAN RESERVATIONS ALLOTTED TO INDIVIDUAL INDIANS AND
HELD IN TRUST FOR THEM BY THE GOVERNMENT SHALL ULTIMATELY BE CONVEYED
TO THEM IN FEE SIMPLE DISCHARGED OF THE TRUST AND "FREE OF ALL CHARGE
OR INCUMBRANCE WHATSOEVER" MIGHT WELL BE CONSTRUED AS EXEMPTING SUCH
LANDS FROM TAXATION.  PP. 6-7. 

(C)  THE PROVISION OF SEC. 6 OF THE GENERAL ALLOTMENT ACT, AS
AMENDED, THAT, WHEN A PATENT IN FEE SIMPLE HAS BEEN ISSUED TO AN INDIAN
ALLOTTEE, "ALL RESTRICTIONS AS TO  ...  TAXATION OF SAID LAND SHALL BE
REMOVED," IMPLIES THAT, UNTIL SUCH TIME AS THE PATENT IS ISSUED, THE
ALLOTMENT SHALL BE FREE FROM ALL TAXES.  PP. 7-9. 

(D)  SUPERINTENDENT OF FIVE CIVILIZED TRIBES V. COMMISSIONER, 295
U.S. 418, DISTINGUISHED.  P. 9. 

(E)  SINCE THE PURPOSE OF THE GENERAL ALLOTMENT ACT IS TO ENABLE
INDIAN ALLOTTEES TO ATTAIN A STATE OF COMPETENCY AND INDEPENDENCE, AND
SINCE THAT PURPOSE WOULD BE DEFEATED BY IMPOSITION OF THE TAX HERE
PROPOSED, IT IS UNREASONABLE TO INFER THAT, IN ENACTING THE INCOME TAX
LAW, CONGRESS INTENDED TO DESTROY THE TAX EXEMPTION AFFORDED BY THE
GENERAL ALLOTMENT ACT.  P. 10. 

SQUIRE, COLLECTOR OF INTERNAL REVENUE, V. CAPOEMAN ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER THE PROCEEDS OF THE SALE BY THE
UNITED STATES GOVERNMENT OF STANDING TIMBER ON ALLOTTED LANDS ON THE
QUINAIELT INDIAN RESERVATION MAY BE MADE SUBJECT TO CAPITAL-GAINS TAX,
CONSISTENTLY WITH APPLICABLE TREATY AND STATUTORY PROVISIONS AND THE
GOVERNMENT'S ROLE AS RESPONDENTS' TRUSTEE AND GUARDIAN. 

WHEN WHITE MEN FIRST CAME TO THE OLYMPIC PENINSULA, IN WHAT IS NOW
THE STATE OF WASHINGTON, THEY FOUND THE QUINAIELT TRIBE OF INDIANS AND
THEIR NEIGHBORING ALLIED TRIBES OCCUPYING A TRACT OF COUNTRY LYING
BETWEEN THE COAST RANGE AND THE PACIFIC OCEAN.  THIS VAST TRACT, WITH
THE EXCEPTION OF A SMALL PORTION RESERVED FOR THEIR EXCLUSIVE USE, WAS
CEDED BY THE QUINAIELTS AND THEIR NEIGHBORS TO THE UNITED STATES IN
EXCHANGE FOR PROTECTION AND TUTELAGE BY THE TREATY OF JULY 1, 1855, AND
JANUARY 25, 1856, 12 STAT. 971.  ACCORDING TO THIS TREATY, THE
QUINAIELTS WERE TO HAVE EXCLUSIVE USE OF THEIR RESERVATION "AND NO
WHITE MAN SHALL BE PERMITTED TO RESIDE THEREON WITHOUT PERMISSION OF
THE TRIBE  ...  ."  ARTICLE II.  YEARS LATER, CONGRESS PASSED THE
GENERAL ALLOTMENT ACT OF 1887.  (FN1) THEREUNDER, INDIANS WERE TO BE
ALLOTTED LANDS ON THEIR RESERVATIONS NOT TO EXCEED 160 ACRES OF GRAZING
LAND OR 80 ACRES OF AGRICULTURAL LAND, (FN2) AND 25 YEARS AFTER
ALLOTMENT THE ALLOTTEES WERE TO RECEIVE THE LANDS DISCHARGED OF THE
TRUST UNDER WHICH THE UNITED STATES HAD THERETOFORE HELD THEM, AND TO
OBTAIN A PATENT "IN FEE, DISCHARGED OF SAID TRUST AND FREE OF ALL
CHARGE OR INCUMBRANCE WHATSOEVER," (FN3) THOUGH THE PRESIDENT MIGHT
EXTEND THE PERIOD.  (FN4) 

RESPONDENTS, HUSBAND AND WIFE, WERE BORN ON THE RESERVATION, AND ARE
DESCRIBED BY THE GOVERNMENT AS FULLBLOOD, NONCOMPETENT QUINAIELT
INDIANS.  THEY HAVE LIVED ON THE RESERVATION ALL THEIR LIVES WITH THE
EXCEPTION OF THE TIME SERVED BY RESPONDENT HUSBAND IN THE ARMED FORCES
OF THE UNITED STATES DURING WORLD WAR II. 

PURSUANT TO THE TREATY AND UNDER THE GENERAL ALLOTMENT ACT OF 1887,
RESPONDENT HUSBAND WAS ALLOTTED FROM THE TREATY-GUARANTEED RESERVATION
93.25 ACRES AND RECEIVED A TRUST PATENT (FN5) THEREFOR DATED OCTOBER 1,
1907.  (FN6)  DURING THE TAX YEAR HERE IN QUESTION, THE FEE TITLE TO
THIS LAND WAS STILL HELD BY THE UNITED STATES IN TRUST FOR HIM, AND WAS
NOT SUBJECT TO ALIENATION OR ENCUMBRANCE BY HIM, EXCEPT WITH THE
CONSENT OF THE UNITED STATES GOVERNMENT, WHICH CONSENT HAD NEVER BEEN
GIVEN.  THE LAND WAS FOREST LAND, COVERED BY CONIFEROUS TREES FROM ONE
HUNDRED YEARS TO SEVERAL HUNDRED YEARS OLD.  IT WAS NOT ADAPTABLE TO
AGRICULTURAL PURPOSES, AND WAS OF LITTLE VALUE AFTER THE TIMBER WAS
CUT. 

IN THE YEAR 1943, THE BUREAU OF INDIAN AFFAIRS OF THE UNITED STATES
DEPARTMENT OF THE INTERIOR ENTERED INTO A CONTRACT OF SALE FOR THE
STANDING TIMBER ON RESPONDENT'S ALLOTTED LAND FOR THE TOTAL PRICE OF
$15,080.80.  THE GOVERNMENT RECEIVED THE SUM OF $8,418.28 ON BEHALF OF
RESPONDENT IN THAT YEAR.  (FN7) 

UPON DEMAND OF PETITIONER, COLLECTOR OF INTERNAL REVENUE FOR THE
DISTRICT OF WASHINGTON, RESPONDENTS FILED A JOINT INCOME TAX RETURN ON
OCTOBER 10, 1947, FOR THE TAX YEAR 1943, REPORTING LONG-TERM CAPITAL
GAIN FROM THE SALE OF THE TIMBER IN THAT YEAR.  SIMULTANEOUSLY, THEY
PAID THE TAXES SHOWN DUE.  THEREAFTER, THEY FILED A TIMELY CLAIM FOR
REFUND OF THE TAXES PAID AND CONTENDED THAT THE PROCEEDS FROM THE SALE
OF TIMBER FROM THE ALLOTTED LAND WERE NOT SUBJECT TO FEDERAL INCOME
TAXATION BECAUSE SUCH TAXATION WOULD BE IN VIOLATION OF THE PROVISIONS
OF THE QUINAIELT TREATY, THE TRUST PATENT, AND THE GENERAL ALLOTMENT
ACT.  THE CLAIM FOR REFUND WAS DENIED, AND THIS ACTION WAS INSTITUTED. 
THE DISTRICT COURT FOUND THAT THE TAX HAD BEEN UNLAWFULLY COLLECTED AND
ORDERED THE REFUND.  110 F. SUPP. 924.  THE COURT OF APPEALS, AGREEING
WITH THE DISTRICT COURT BUT RECOGNIZING A CONFLICT BETWEEN THIS CASE
AND THE DECISION OF THE TENTH CIRCUIT IN THE CASE OF JONES V. TAUNAH,
186 F.2D 445, AFFIRMED.  220 F.2D 349.  BECAUSE OF THE APPARENT
CONFLICT, WE GRANTED CERTIORARI.  350 U.S. 816. 

THE GOVERNMENT URGES US TO VIEW THIS CASE AS AN ORDINARY TAX CASE
WITHOUT REGARD TO THE TREATY, RELEVANT STATUTES, CONGRESSIONAL POLICY
CONCERNING INDIANS, OR THE GUARDIAN-WARD RELATIONSHIP BETWEEN THE
UNITED STATES AND THESE PARTICULAR INDIANS.  IT ARGUES: 

"AS CITIZENS OF THE UNITED STATES THEY ARE TAXABLE UNDER THE BROAD
PROVISIONS OF SECTIONS 11 AND 22(A) OF THE INTERNAL REVENUE CODE OF
1939, WHICH IMPOSES A TAX ON THE NET INCOME OF EVERY INDIVIDUAL,
DERIVED FROM ANY SOURCE WHATEVER.  THERE IS NO EXEMPTION FROM TAX IN
THE QUINAIELT TREATY, THE GENERAL ALLOTMENT ACT, THE TAXING STATUTE, OR
IN ANY OTHER LEGISLATION DEALING WITH TAXPAYERS' AFFAIRS  ...  . 

"EVEN IF IT BE ASSUMED THAT THE UNITED STATES WOULD BE PROHIBITED
FROM IMPOSING A DIRECT TAX ON THE ALLOTTED LAND HELD IN TRUST FOR THE
TAXPAYERS, THERE WOULD, NEVERTHELESS, BE NO PROHIBITION AGAINST A
FEDERAL TAX ON THE INCOME DERIVED FROM THE LAND, SINCE A TAX ON SUCH
INCOME IS NOT THE SAME AS A TAX ON THE SOURCE OF THE INCOME, THE
LAND."  (FN8) 

WE AGREE WITH THE GOVERNMENT THAT INDIANS ARE CITIZENS AND THAT IN
ORDINARY AFFAIRS OF LIFE, NOT GOVERNED BY TREATIES OR REMEDIAL
LEGISLATION, THEY ARE SUBJECT TO THE PAYMENT OF INCOME TAXES AS ARE
OTHER CITIZENS.  WE ALSO AGREE THAT, TO BE VALID, EXEMPTIONS TO TAX
LAWS SHOULD BE CLEARLY EXPRESSED.  BUT WE CANNOT AGREE THAT TAXABILITY
OF RESPONDENTS IN THESE CIRCUMSTANCES IS UNAFFECTED BY THE TREATY, THE
TRUST PATENT OR THE ALLOTMENT ACT. 

THE COURTS BELOW HELD THAT IMPOSITION OF THE TAX HERE IN QUESTION IS
INCONSISTENT WITH THE GOVERNMENT'S PROMISE TO TRANSFER THE FEE "FREE OF
ALL CHARGE OR INCUMBRANCE WHATSOEVER."  ALTHOUGH THIS STATUTORY
PROVISION IS NOT EXPRESSLY COUCHED IN TERMS OF NONTAXABILITY, THIS
COURT HAS SAID THAT: 

"DOUBTFUL EXPRESSIONS ARE TO BE RESOLVED IN FAVOR OF THE WEAK AND
DEFENSELESS PEOPLE WHO ARE THE WARDS OF THE NATION, DEPENDENT UPON ITS
PROTECTION AND GOOD FAITH.  HENCE, IN THE WORDS OF CHIEF JUSTICE
MARSHALL, 'THE LANGUAGE USED IN TREATIES WITH THE INDIANS SHOULD NEVER
BE CONSTRUED TO THEIR PREJUDICE.  IF WORDS BE MADE USE OF, WHICH ARE
SUSCEPTIBLE OF A MORE EXTENDED MEANING THAN THEIR PLAIN IMPORT, AS
CONNECTED WITH THE TENOR OF THE TREATY, THEY SHOULD BE CONSIDERED AS
USED ONLY IN THE LATTER SENSE.'  WORCESTER V. THE STATE OF GEORGIA, 6
PET. 515, 582."  CARPENTER V. SHAW, 280 U.S. 363, 367. 

THUS, THE GENERAL WORDS "CHARGE OR INCUMBRANCE" MIGHT WELL BE
SUFFICIENT TO INCLUDE TAXATION.  BUT CONGRESS, IN AN AMENDMENT TO THE
GENERAL ALLOTMENT ACT, GAVE ADDITIONAL FORCE TO RESPONDENTS' POSITION. 

"THAT THE SECRETARY OF THE INTERIOR MAY, IN HIS DISCRETION, AND HE IS
AUTHORIZED, WHENEVER HE SHALL BE SATISFIED THAT ANY INDIAN ALLOTTEE IS
COMPETENT AND CAPABLE OF MANAGING HIS OR HER AFFAIRS AT ANY TIME TO
CAUSE TO BE ISSUED TO SUCH ALLOTTEE A PATENT IN FEE SIMPLE, AND
THEREAFTER ALL RESTRICTIONS AS TO SALE, INCUMBRANCE, OR TAXATION OF
SAID LAND SHALL BE REMOVED AND SAID LAND SHALL NOT BE LIABLE TO THE
SATISFACTION OF ANY DEBT CONTRACTED PRIOR TO THE ISSUING OF SUCH PATENT
... ."  (FN9) 

THE GOVERNMENT ARGUES THAT THIS AMENDMENT WAS DIRECTED SOLELY AT
PERMITTING STATE AND LOCAL TAXATION AFTER A TRANSFER IN FEE, BUT THERE
IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THE AMENDMENT THAT IT
WAS TO BE SO LIMITED.  (FN10)  THE FACT THAT THIS AMENDMENT ANTEDATED
THE FEDERAL INCOME TAX BY 10 YEARS ALSO SEEMS IRRELEVANT.  THE LITERAL
LANGUAGE OF THE PROVISO EVINCES A CONGRESSIONAL INTENT TO SUBJECT AN
INDIAN ALLOTMENT TO ALL TAXES ONLY AFTER A PATENT IN FEE IS ISSUED TO
THE ALLOTTEE.  THIS, IN TURN, IMPLIES THAT, UNTIL SUCH TIME AS THE
PATENT IS ISSUED, THE ALLOTMENT SHALL BE FREE FROM ALL TAXES, BOTH
THOSE IN BEING AND THOSE WHICH MIGHT IN THE FUTURE BE ENACTED.  (FN11) 

THE FIRST OPINION OF AN ATTORNEY GENERAL TOUCHING ON THIS QUESTION
SEEMED TO CONSTRUE THE LANGUAGE OF THE AMENDMENT TO SECTION 6 AS
EXEMPTING FROM THE INCOME TAX INCOME DERIVED FROM RESTRICTED
ALLOTMENTS.  (FN12)  AND EVEN WITHOUT SUCH A CLEAR STATUTORY BASIS FOR
EXEMPTION, A LATER ATTORNEY GENERAL ADVISED THAT HE WAS: 

"UNABLE, BY IMPLICATION, TO IMPUTE TO CONGRESS UNDER THE BROAD
LANGUAGE OF OUR INTERNAL REVENUE ACTS AN INTENT TO IMPOSE A TAX FOR THE
BENEFIT OF THE FEDERAL GOVERNMENT ON INCOME DERIVED FROM THE RESTRICTED
PROPERTY OF THESE WARDS OF THE NATION; PROPERTY THE MANAGEMENT AND
CONTROL OF WHICH RESTS LARGELY IN THE HANDS OF OFFICERS OF THE
GOVERNMENT CHARGED BY LAW WITH THE RESPONSIBILITY AND DUTY OF
PROTECTING THE INTERESTS AND WELFARE OF THESE DEPENDENT PEOPLE.  IN
OTHER WORDS, IT IS NOT LIGHTLY TO BE ASSUMED THAT CONGRESS INTENDED TO
TAX THE WARD FOR THE BENEFIT OF THE GUARDIAN."  (FN13) 

TWO OF THESE OPINIONS WERE PUBLISHED AS TREASURY DECISIONS.  (FN14)
ON THE BASIS OF THESE OPINIONS AND DECISIONS, AND A SERIES OF DISTRICT
AND CIRCUIT COURT DECISIONS, IT WAS SAID BY FELIX S. COHEN, AN
ACKNOWLEDGED EXPERT IN INDIAN LAW, THAT "IT IS CLEAR THAT THE EXEMPTION
ACCORDED TRIBAL AND RESTRICTED INDIAN LANDS EXTENDS TO THE INCOME
DERIVED DIRECTLY THEREFROM."  (FN15)  THESE RELATIVELY CONTEMPORANEOUS
OFFICIAL AND UNOFFICIAL WRITINGS ARE ENTITLED TO CONSIDERATION.  THE
GOVERNMENT MAKES MUCH OF A SUBSEQUENT ATTORNEY GENERAL'S OPINION,
(FN16) WHICH EXPRESSLY OVERRULED AN EARLIER OPINION, (FN17) ON THE
AUTHORITY OF SUPERINTENDENT OF FIVE CIVILIZED TRIBES V. COMMISSIONER,
295 U.S. 418. 

THAT CASE IS DISTINGUISHABLE FROM THE CASE AT HAND.  IT INVOLVED WHAT
THE COURT CHARACTERIZED AS "INCOME DERIVED FROM INVESTMENT OF SURPLUS
INCOME FROM LAND," (FN18) OR INCOME ON INCOME, WHICH COHEN TERMED
"REINVESTMENT INCOME."  THE PURPOSE OF THE ALLOTMENT SYSTEM WAS TO
PROTECT THE INDIANS' INTEREST AND "TO PREPARE THE INDIANS TO TAKE THEIR
PLACE AS INDEPENDENT, QUALIFIED MEMBERS OF THE MODERN BODY POLITIC." 
BOARD OF COMMISSIONERS V. SEBER, 318 U.S. 705, 715.  TO THIS END, IT IS
NECESSARY TO PRESERVE THE TRUST AND INCOME DERIVED DIRECTLY THEREFROM,
BUT IT IS NOT NECESSARY TO EXEMPT REINVESTMENT INCOME FROM TAX
BURDENS.  IT IS NOTEWORTHY THAT THE SUPERINTENDENT CASE DID NOT INVOLVE
AN ATTEMPT TO TAX THE LAND "SURPLUS."  (FN19) 

THE WISDOM OF THE CONGRESSIONAL EXEMPTION FROM TAX EMBODIED IN
THE INSTANT CASE.  RESPONDENT'S TIMBER CONSTITUTES THE MAJOR VALUE OF
HIS ALLOTTED LAND.  THE GOVERNMENT DETERMINES THE CONDITIONS UNDER
WHICH THE CUTTING IS MADE.  (FN20)  ONCE LOGGED OFF, THE LAND IS OF
LITTLE VALUE.  (FN21)  THE LAND NO LONGER SERVES THE PURPOSE FOR WHICH
IT WAS BY TREATY SET ASIDE TO HIS ANCESTORS, AND FOR WHICH IT WAS
ALLOTTED TO HIM.  IT CAN NO LONGER BE ADEQUATE TO HIS NEEDS AND SERVE
THE PURPOSE OF BRINGING HIM FINALLY TO A STATE OF COMPETENCY AND
INDEPENDENCE.  UNLESS THE PROCEEDS OF THE TIMBER SALE ARE PRESERVED FOR
RESPONDENT, HE CANNOT GO FORWARD WHEN DECLARED COMPETENT WITH THE
NECESSARY CHANCE OF ECONOMIC SURVIVAL IN COMPETITION WITH OTHERS.  THIS
CHANCE IS GUARANTEED BY THE TAX EXEMPTION AFFORDED BY THE GENERAL
ALLOTMENT ACT, AND THE SOLEMN UNDERTAKING IN THE PATENT.  IT IS
UNREASONABLE TO INFER THAT, IN ENACTING THE INCOME TAX LAW, CONGRESS
INTENDED TO LIMIT OR UNDERMINE THE GOVERNMENT'S UNDERTAKING.  TO TAX
RESPONDENT UNDER THESE CIRCUMSTANCES WOULD, IN THE WORDS OF THE COURT
BELOW, BE "AT THE LEAST, A SORRY BREACH OF FAITH WITH THESE INDIANS." 
(FN22) 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  24 STAT. 388, 25 U.S.C. SEC. 331 ET SEQ. 

FN2  25 U.S.C. SEC. 331. 

FN3  ID., SEC. 348. 

FN4  IBID.  THE TRUST PERIOD HERE INVOLVED HAS REGULARLY BEEN
EXTENDED BY EXECUTIVE ORDER.  SEE NOTE FOLLOWING 25 U.S.C. SEC. 348,
AND SEE 25 U.S.C. SEC. 462, WHICH PROVIDES: "THE EXISTING PERIODS OF
TRUST PLACED UPON ANY INDIAN LANDS AND ANY RESTRICTION ON ALIENATION
THEREOF ARE EXTENDED AND CONTINUED UNTIL OTHERWISE DIRECTED BY
CONGRESS." 

FN5  THE TERM "PATENT" INADEQUATELY DESCRIBES RESPONDENT'S INTEREST. 
"CONGRESS  ...  WAS CAREFUL TO AVOID INVESTING THE ALLOTTEE WITH THE
TITLE IN THE FIRST INSTANCE, AND DIRECTED THAT THERE SHOULD BE ISSUED
TO HIM WHAT  ...  IS IN REALITY AN ALLOTMENT CERTIFICATE  ...  ." 
MONSON V. SIMONSON, 231 U.S. 341, 345. 

FN6  IN PERTINENT PART, THE PATENT PROVIDES: 

"NOW KNOW YE, THAT THE UNITED STATES OF AMERICA, IN CONSIDERATION OF
THE PREMISES, HAS ALLOTTED, AND BY THESE PRESENTS DOES ALLOT, UNTO THE
SAID HORTON CAPOEMAN, THE LAND ABOVE DESCRIBED, AND HEREBY DECLARES
THAT IT DOES AND WILL HOLD THE LAND THUS ALLOTTED (SUBJECT TO ALL
STATUTORY PROVISIONS AND RESTRICTIONS) FOR THE PERIOD OF TWENTY-FIVE
YEARS, IN TRUST FOR THE SOLE USE AND BENEFIT OF THE SAID INDIAN, AND
THAT AT THE EXPIRATION OF SAID PERIOD THE UNITED STATES WILL CONVEY THE
SAME BY PATENT TO SAID INDIAN, IN FEE, DISCHARGED OF SAID TRUST AND
FREE OF ALL CHARGE OR INCUMBRANCE WHATSOEVER,  ...  ."    FN7  THIS
SALE SEEMS TO HAVE FOLLOWED A PATTERN GENERALLY ADOPTED BY THE
GOVERNMENT IN SELLING TIMBER FROM INDIAN ALLOTMENTS.  HUGE AREAS OF
FOREST ARE PUT UP FOR COMPETITIVE BIDS BY LUMBER COMPANIES.  THESE
TRACTS INCLUDE THE TRIBAL FOREST LANDS AND INDIVIDUAL ALLOTMENTS, WITH
THE CONSENT OF TRIBAL COUNCILS AND INDIVIDUAL ALLOTTEES.  THE
SUCCESSFUL BIDDER IS REQUIRED TO MAKE AN IMMEDIATE ADVANCE PAYMENT OF A
LARGE PROPORTION OF THE ESTIMATED VALUE OF THE LUMBER IN THE TRACT. 
SINCE AS MUCH AS 640 MILLION BOARD FEET HAVE BEEN SOLD AT ONE TIME,
THIS REQUIREMENT MAKES IT ECONOMICALLY INFEASIBLE FOR ANY BUT THE
LARGEST COMPANIES TO SUBMIT BIDS.  THE UNCERTAINTIES OF SUCH LARGE
SCALE OPERATIONS, WHICH ARE TO BE CARRIED ON OVER 25- OR 30-YEAR
PERIODS, COUPLED WITH LOCAL QUALITY AND ACCESSIBILITY VARIABLES, HAS
RESULTED IN SUBSTANTIALLY LOWER THAN PREVAILING MARKET BIDS.  IN SOME
INSTANCES, THE RETURN TO OTHER SELLERS OF COMPARABLE TIMBER WAS TWO OR
THREE TIMES THAT RECEIVED BY THE INDIANS.  SEE TRANSCRIPT OF NOVEMBER
28, 1955, JOINT HEARING OF SUBCOMMITTEE ON LEGISLATIVE OVERSIGHT
FUNCTION OF THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS AND OF
SUBCOMMITTEE ON PUBLIC WORKS AND RESOURCES OF THE HOUSE COMMITTEE ON
GOVERNMENT OPERATIONS, 2151-2217, AND PASSIM. 

FN8  BRIEF FOR PETITIONER, PP. 7-8. 

FN9  25 U.S.C. SEC. 349. 

FN10  SEE S. REP. NO. 1998, 59TH CONG., 1ST SESS.; H.R. REP. NO.
1558, 59TH CONG., 1ST SESS. 

FN11  THIS PROVISION WAS RELIED UPON BY CHIEF JUDGE PHILLIPS,
DISSENTING IN JONES V. TAUNAH, 186 F.2D 445, 449. 

FN12  34 OP. ATTY. GEN. 275, 281 (1924).  AND SEE ID., 302 (1924). 

FN13  ID., 439, 445 (1925).  THIS RULING WAS FOLLOWED IN 35 OP. ATTY.
GEN. 1 (1925).  AND CF. ID., 107 (1926). 

FN14  T.D. 3570, III-1 CUM. BULL.  85 (1924); T.D. 3754, IV-2 CUM.
BULL.  37 (1925). 

FN15  COHEN, HANDBOOK OF FEDERAL INDIAN LAW, 265.  HE DISTINGUISHED
CASES PERMITTING THE IMPOSITION OF INCOME TAXES UPON INCOME DERIVED
FROM UNRESTRICTED LANDS, AND UPON REINVESTMENT INCOME.  ID., AT 265
266.  MR. COHEN WAS CHAIRMAN OF THE DEPARTMENT OF INTERIOR BOARD OF
APPEALS, AND ASSISTANT SOLICITOR OF THE DEPARTMENT.  THE HANDBOOK HAS A
FOREWORD BY HAROLD L. ICKES, THEN SECRETARY OF THE INTERIOR, AND WAS
PRINTED BY THE UNITED STATES GOVERNMENT PRINTING OFFICE. 

FN16  39 OP. ATTY. GEN. 107 (1937). 

FN17  34 ID., 439. 

FN18  295 U.S., AT 421. 

FN19  THE GOVERNMENT ALSO RELIES UPON CHOTEAU V. BURNET, 283 U.S.
691, BUT THAT CASE ALSO IS NOT CONTROLLING, SINCE IT HELD ONLY THAT A
COMPETENT INDIAN, WHO HAD UNRESTRICTED CONTROL OVER LANDS AND INCOME
THEREFROM, WAS NOT EXEMPT FROM INCOME TAX SOLELY BECAUSE OF HIS STATUS
AS AN INDIAN.  SUCH A TAX IS SPECIFICALLY AUTHORIZED BY SECTION 6 OF
THE GENERAL ALLOTMENT ACT. 

FN20  SEE UNITED STATES V. EASTMAN, 118 F.2D 421. 

FN21  SEE 220 F.2D, AT 350.  IN ITS ANSWER FILED IN THE DISTRICT
COURT, THE GOVERNMENT ADMITTED THAT THE LANDS "ARE GENERALLY UNSUITABLE
FOR AGRICULTURAL PURPOSES  ...  ."  R. 31. 

FN22  220 F.2D 350. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, DISSENTING. 

MY VIEW IS THAT THE SALE PRICE OF THE TIMBER IN EXCESS OF ITS MARKET
VALUE ON MARCH 1, 1913, WAS A CAPITAL GAIN, SUBJECT TO FEDERAL INCOME
TAX.  JONES V. TAUNAH, 186 F.2D 445.  CF. CHOTEAU V. BURNET, 283 U.S.
691; SUPERINTENDENT V. COMMISSIONER, 295 U.S. 418.  THE GAIN IS TAXABLE
INCOME LIKE THE VALUE OF ANNUAL CROPS. 
..END :







GRIFFIN V. ILLINOIS 351 U.S. 12 


NO. 95.  ARGUED DECEMBER 7, 1955.  - DECIDED APRIL 23, 1956.  - JUDGMENT
VACATED AND CAUSE REMANDED. 


ILLINOIS LAW GIVES EVERY PERSON CONVICTED IN A CRIMINAL TRIAL A RIGHT
OF REVIEW BY WRIT OF ERROR; BUT A FULL DIRECT APPELLATE REVIEW CAN BE
HAD ONLY BY FURNISHING THE APPELLATE COURT WITH A BILL OF EXCEPTIONS OR
REPORT OF THE TRIAL PROCEEDINGS, CERTIFIED BY THE TRIAL JUDGE, AND IT
IS SOMETIMES IMPOSSIBLE TO PREPARE SUCH DOCUMENTS WITHOUT A
STENOGRAPHIC TRANSCRIPT OF THE TRIAL PROCEEDINGS, WHICH ARE FURNISHED
FREE ONLY TO INDIGENT DEFENDANTS SENTENCED TO DEATH.  CONVICTED IN AN
ILLINOIS STATE COURT OF ARMED ROBBERY, PETITIONERS MOVED IN THE TRIAL
COURT THAT A CERTIFIED COPY OF THE ENTIRE RECORD, INCLUDING A
STENOGRAPHIC TRANSCRIPT OF THE PROCEEDINGS, BE FURNISHED TO THEM
WITHOUT COST.  THEY ALLEGED THAT THEY WERE WITHOUT FUNDS TO PAY FOR
SUCH DOCUMENTS AND THAT FAILURE OF THE COURT TO PROVIDE THEM WOULD
VIOLATE THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT.  THEIR MOTION WAS DENIED.  THEY THEN FILED A PETITION UNDER
THE ILLINOIS POST-CONVICTION HEARING ACT, UNDER WHICH ONLY QUESTIONS
ARISING UNDER THE STATE OR FEDERAL CONSTITUTION MAY BE RAISED.  THEY
ALLEGED THAT THERE WERE MANIFEST NONCONSTITUTIONAL ERRORS IN THE TRIAL
WHICH ENTITLED THEM TO HAVE THEIR CONVICTIONS SET ASIDE ON APPEAL, THAT
THE ONLY IMPEDIMENT TO FULL APPELLATE REVIEW WAS THEIR LACK OF FUNDS TO
BUY A TRANSCRIPT, AND THAT REFUSAL TO AFFORD FULL APPELLATE REVIEW
SOLELY BECAUSE OF THEIR POVERTY WAS A DENIAL OF DUE PROCESS AND EQUAL
PROTECTION.  THIS PETITION WAS DISMISSED, AND THE ILLINOIS SUPREME
COURT AFFIRMED, SOLELY ON THE GROUND THAT THE PETITION RAISED NO
SUBSTANTIAL STATE OR FEDERAL CONSTITUTIONAL QUESTION.  HELD:
PETITIONERS' CONSTITUTIONAL RIGHTS WERE VIOLATED, THE JUDGMENT OF THE
ILLINOIS SUPREME COURT IS VACATED, AND THE CAUSE IS REMANDED TO THAT
COURT FOR FURTHER ACTION AFFORDING PETITIONERS ADEQUATE AND EFFECTIVE
APPELLATE REVIEW.  PP. 13-26. 

GRIFFIN ET AL. V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

MR. JUSTICE BLACK ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, AND MR. JUSTICE CLARK
JOIN. 

ILLINOIS LAW PROVIDES THAT "WRITS OF ERROR IN ALL CRIMINAL CASES ARE
WRITS OF RIGHT AND SHALL BE ISSUED OF COURSE."  (FN1)  THE QUESTION
PRESENTED HERE IS WHETHER ILLINOIS MAY, CONSISTENT WITH THE DUE PROCESS
AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT, ADMINISTER
THIS STATUTE SO AS TO DENY ADEQUATE APPELLATE REVIEW TO THE POOR WHILE
GRANTING SUCH REVIEW TO ALL OTHERS. 

THE PETITIONERS GRIFFIN AND CRENSHAW WERE TRIED TOGETHER AND
CONVICTED OF ARMED ROBBERY IN THE CRIMINAL COURT OF COOK COUNTY,
ILLINOIS.  IMMEDIATELY AFTER THEIR CONVICTION THEY FILED A MOTION IN
THE TRIAL COURT ASKING THAT A CERTIFIED COPY OF THE ENTIRE RECORD,
INCLUDING A STENOGRAPHIC TRANSCRIPT OF THE PROCEEDINGS, BE FURNISHED
THEM WITHOUT COST.  THEY ALLEGED THAT THEY WERE "POOR PERSONS WITH NO
MEANS OF PAYING THE NECESSARY FEES TO ACQUIRE THE TRANSCRIPT AND COURT
RECORDS NEEDED TO PROSECUTE AN APPEAL  ...  ."  THESE ALLEGATIONS WERE
NOT DENIED.  UNDER ILLINOIS LAW IN ORDER TO GET FULL DIRECT APPELLATE
REVIEW OF ALLEGED ERRORS BY A WRIT OF ERROR IT IS NECESSARY FOR THE
DEFENDANT TO FURNISH THE APPELLATE COURT WITH A BILL OF EXCEPTIONS OR
REPORT OF PROCEEDINGS AT THE TRIAL CERTIFIED BY THE TRIAL JUDGE.  (FN2)
AS ILLINOIS CONCEDES, IT IS SOMETIMES IMPOSSIBLE TO PREPARE SUCH BILLS
OF EXCEPTIONS (FN3) OR REPORTS WITHOUT A STENOGRAPHIC TRANSCRIPT OF THE
TRIAL PROCEEDINGS.  (FN4)  INDIGENT DEFENDANTS SENTENCED TO DEATH ARE
PROVIDED WITH A FREE TRANSCRIPT AT THE EXPENSE OF THE COUNTY WHERE
CONVICTED.  (FN5)  IN ALL OTHER CRIMINAL CASES DEFENDANTS NEEDING A
TRANSCRIPT, WHETHER INDIGENT OR NOT, MUST THEMSELVES BUY IT.  THE
PETITIONERS CONTENDED IN THEIR MOTION BEFORE THE TRIAL COURT THAT
FAILURE TO PROVIDE THEM WITH THE NEEDED TRANSCRIPT WOULD VIOLATE THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT. 
THE TRIAL COURT DENIED THE MOTION WITHOUT A HEARING. 

GRIFFIN AND CRENSHAW THEN FILED A PETITION UNDER THE ILLINOIS POST
CONVICTION HEARING ACT.  (FN6) ONLY QUESTIONS ARISING UNDER THE
ILLINOIS OR FEDERAL CONSTITUTION MAY BE RAISED IN PROCEEDINGS UNDER
THIS ACT.  A COMPANION STATE ACT PROVIDES THAT INDIGENT PETITIONERS
UNDER THE POST-CONVICTION ACT MAY, UNDER SOME CIRCUMSTANCES, OBTAIN A
FREE TRANSCRIPT.  (FN7)  THE EFFECT IS THAT INDIGENTS MAY OBTAIN A FREE
TRANSCRIPT TO OBTAIN APPELLATE REVIEW OF CONSTITUTIONAL QUESTIONS BUT
NOT OF OTHER ALLEGED TRIAL ERRORS SUCH AS ADMISSIBILITY AND SUFFICIENCY
OF EVIDENCE.  IN THEIR POST-CONVICTION PROCEEDING PETITIONERS ALLEGED
THAT THERE WERE MANIFEST NONCONSTITUTIONAL ERRORS IN THE TRIAL WHICH
ENTITLED THEM TO HAVE THEIR CONVICTIONS SET ASIDE ON APPEAL AND THAT
THE ONLY IMPEDIMENT TO FULL APPELLATE REVIEW WAS THEIR LACK OF FUNDS TO
BUY A TRANSCRIPT.  THESE ALLEGATIONS HAVE NOT BEEN DENIED.  PETITIONERS
REPEATED THEIR CHARGE THAT REFUSAL TO AFFORD FULL APPELLATE REVIEW
SOLELY BECAUSE OF POVERTY WAS A DENIAL OF DUE PROCESS AND EQUAL
PROTECTION.  THIS PETITION LIKE THE FIRST WAS DISMISSED WITHOUT HEARING
ANY EVIDENCE.  THE ILLINOIS SUPREME COURT AFFIRMED THE DISMISSAL SOLELY
ON THE GROUND THAT THE CHARGES RAISED NO SUBSTANTIAL STATE OR FEDERAL
CONSTITUTIONAL QUESTIONS - THE ONLY KIND OF QUESTIONS WHICH MAY BE
RAISED IN POST-CONVICTION PROCEEDINGS.  WE GRANTED CERTIORARI.  349
U.S. 937. 

COUNSEL FOR ILLINOIS CONCEDES THAT THESE PETITIONERS NEEDED A
TRANSCRIPT IN ORDER TO GET ADEQUATE APPELLATE REVIEW OF THEIR ALLEGED
TRIAL ERRORS.  (FN8)  THERE IS NO CONTENTION THAT PETITIONERS WERE
DILATORY IN THEIR EFFORTS TO GET APPELLATE REVIEW, OR THAT THE ILLINOIS
SUPREME COURT DENIED REVIEW ON THE GROUND THAT THE ALLEGATIONS OF TRIAL
ERROR WERE INSUFFICIENT.  WE MUST THEREFORE ASSUME FOR PURPOSES OF THIS
DECISION THAT ERRORS WERE COMMITTED IN THE TRIAL WHICH WOULD MERIT
REVERSAL, BUT THAT THE PETITIONERS COULD NOT GET APPELLATE REVIEW OF
THOSE ERRORS SOLELY BECAUSE THEY WERE TOO POOR TO BUY A STENOGRAPHIC
TRANSCRIPT.  COUNSEL FOR ILLINOIS DENIES THAT THIS VIOLATES EITHER THE
DUE PROCESS OR THE EQUAL PROTECTION CLAUSE, BUT STATES THAT IF IT DOES,
THE ILLINOIS POST-CONVICTION STATUTE ENTITLES PETITIONERS TO A FREE
TRANSCRIPT.  THE SOLE QUESTION FOR US TO DECIDE, THEREFORE, IS WHETHER
DUE PROCESS OR EQUAL PROTECTION HAS BEEN VIOLATED.  (FN9) 

PROVIDING EQUAL JUSTICE FOR POOR AND RICH, WEAK AND POWERFUL ALIKE IS
AN AGE-OLD PROBLEM.  (FN10) PEOPLE HAVE NEVER CEASED TO HOPE AND STRIVE
TO MOVE CLOSER TO THAT GOAL.  THIS HOPE, AT LEAST IN PART, BROUGHT
ABOUT IN 1215 THE ROYAL CONCESSIONS OF MAGNA CHARTA:  "TO NO ONE WILL
WE SELL, TO NO ONE WILL WE REFUSE, OR DELAY, RIGHT OR JUSTICE  ...  .
NO FREE MAN SHALL BE TAKEN OR IMPRISONED, OR DISSEISED, OR OUTLAWED, OR
EXILED, OR ANYWISE DESTROYED; NOR SHALL WE GO UPON HIM NOR SEND UPON
HIM, BUT BY THE LAWFUL JUDGMENT OF HIS PEERS OR BY THE LAW OF THE
LAND."  THESE PLEDGES WERE UNQUESTIONABLY STEPS TOWARD A FAIRER AND
MORE NEARLY EQUAL APPLICATION OF CRIMINAL JUSTICE.  IN THIS TRADITION,
OUR OWN CONSTITUTIONAL GUARANTIES OF DUE PROCESS AND EQUAL PROTECTION
BOTH CALL FOR PROCEDURES IN CRIMINAL TRIALS WHICH ALLOW NO INVIDIOUS
DISCRIMINATIONS BETWEEN PERSONS AND DIFFERENT GROUPS OF PERSONS.  BOTH
EQUAL PROTECTION AND DUE PROCESS EMPHASIZE THE CENTRAL AIM OF OUR
ENTIRE JUDICIAL SYSTEM - ALL PEOPLE CHARGED WITH CRIME MUST, SO FAR AS
THE LAW IS CONCERNED, "STAND ON AN EQUALITY BEFORE THE BAR OF JUSTICE
IN EVERY AMERICAN COURT."  CHAMBERS V. FLORIDA, 309 U.S. 227, 241.  SEE
ALSO YICK WO V. HOPKINS, 118 U.S. 356, 369.  (FN11) 

SURELY NO ONE WOULD CONTEND THAT EITHER A STATE OR THE FEDERAL
GOVERNMENT COULD CONSTITUTIONALLY PROVIDE THAT DEFENDANTS UNABLE TO PAY
COURT COSTS IN ADVANCE SHOULD BE DENIED THE RIGHT TO PLEAD NOT GUILTY
OR TO DEFEND THEMSELVES IN COURT.  (FN12)  SUCH A LAW WOULD MAKE THE
CONSTITUTIONAL PROMISE OF A FAIR TRIAL A WORTHLESS THING.  NOTICE, THE
RIGHT TO BE HEARD, AND THE RIGHT TO COUNSEL WOULD UNDER SUCH
CIRCUMSTANCES BE MEANINGLESS PROMISES TO THE POOR.  IN CRIMINAL TRIALS
A STATE CAN NO MORE DISCRIMINATE ON ACCOUNT OF POVERTY THAN ON ACCOUNT
OF RELIGION, RACE, OR COLOR.  PLAINLY THE ABILITY TO PAY COSTS IN
ADVANCE BEARS NO RATIONAL RELATIONSHIP TO A DEFENDANT'S GUILT OR
INNOCENCE AND COULD NOT BE USED AS AN EXCUSE TO DEPRIVE A DEFENDANT OF
A FAIR TRIAL.  INDEED, A PROVISION IN THE CONSTITUTION OF ILLINOIS OF
1818 PROVIDED THAT EVERY PERSON IN ILLINOIS "OUGHT TO OBTAIN RIGHT AND
JUSTICE FREELY, AND WITHOUT BEING OBLIGED TO PURCHASE IT, COMPLETELY
AND WITHOUT DENIAL, PROMPTLY AND WITHOUT DELAY, CONFORMABLY TO THE
LAWS."  (FN13) 

THERE IS NO MEANINGFUL DISTINCTION BETWEEN A RULE WHICH WOULD DENY
THE POOR THE RIGHT TO DEFEND THEMSELVES IN A TRIAL COURT AND ONE WHICH
EFFECTIVELY DENIES THE POOR AN ADEQUATE APPELLATE REVIEW ACCORDED TO
ALL WHO HAVE MONEY ENOUGH TO PAY THE COSTS IN ADVANCE.  IT IS TRUE THAT
A STATE IS NOT REQUIRED BY THE FEDERAL CONSTITUTION TO PROVIDE
APPELLATE COURTS OR A RIGHT TO APPELLATE REVIEW AT ALL.  SEE, E.G.,
MCKANE V. DURSTON, 153 U.S. 684, 687-688.  BUT THAT IS NOT TO SAY THAT
A STATE THAT DOES GRANT APPELLATE REVIEW CAN DO SO IN A WAY THAT
DISCRIMINATES AGAINST SOME CONVICTED DEFENDANTS ON ACCOUNT OF THEIR
POVERTY.  APPELLATE REVIEW HAS NOW BECOME AN INTEGRAL PART OF THE
ILLINOIS TRIAL SYSTEM FOR FINALLY ADJUDICATING THE GUILT OR INNOCENCE
OF A DEFENDANT.  CONSEQUENTLY AT ALL STAGES OF THE PROCEEDINGS THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES PROTECT PERSONS LIKE PETITIONERS
FROM INVIDIOUS DISCRIMINATIONS.  SEE COLE V. ARKANSAS, 333 U.S. 196,
201; DOWD V. UNITED STATES EX REL. COOK, 340 U.S. 206, 208; COCHRAN V.
KANSAS, 316 U.S. 255, 257; FRANK V. MANGUM, 237 U.S. 309, 327. 

ALL OF THE STATES NOW PROVIDE SOME METHOD OF APPEAL FROM CRIMINAL
CONVICTIONS, RECOGNIZING THE IMPORTANCE OF APPELLATE REVIEW TO A
CORRECT ADJUDICATION OF GUILT OR INNOCENCE.  STATISTICS SHOW THAT A
SUBSTANTIAL PROPORTION OF CRIMINAL CONVICTIONS ARE REVERSED BY STATE
APPELLATE COURTS.  (FN14)  THUS TO DENY ADEQUATE REVIEW TO THE POOR
MEANS THAT MANY OF THEM MAY LOSE THEIR LIFE, LIBERTY OR PROPERTY
BECAUSE OF UNJUST CONVICTIONS WHICH APPELLATE COURTS WOULD SET ASIDE. 
MANY STATES HAVE RECOGNIZED THIS AND PROVIDED AID FOR CONVICTED
DEFENDANTS WHO HAVE A RIGHT TO APPEAL AND NEED A TRANSCRIPT BUT ARE
UNABLE TO PAY FOR IT.  (FN15)  A FEW HAVE NOT.  SUCH A DENIAL IS A
MISFIT IN A COUNTRY DEDICATED TO AFFORDING EQUAL JUSTICE TO ALL AND
SPECIAL PRIVILEGES TO NONE IN THE ADMINISTRATION OF ITS CRIMINAL LAW. 
(FN16)  THERE CAN BE NO EQUAL JUSTICE WHERE THE KIND OF TRIAL A MAN
GETS DEPENDS ON THE AMOUNT OF MONEY HE HAS.  DESTITUTE DEFENDANTS MUST
BE AFFORDED AS ADEQUATE APPELLATE REVIEW AS DEFENDANTS WHO HAVE MONEY
ENOUGH TO BUY TRANSCRIPTS. 

THE ILLINOIS SUPREME COURT DENIED THESE PETITIONERS RELIEF UNDER THE
POST-CONVICTION ACT BECAUSE OF ITS HOLDING THAT NO CONSTITUTIONAL
RIGHTS WERE VIOLATED.  IN VIEW OF OUR HOLDING TO THE CONTRARY THE STATE
SUPREME COURT MAY DECIDE THAT PETITIONERS ARE NOW ENTITLED TO A
TRANSCRIPT, AS THE STATE'S BRIEF SUGGESTS.  SEE ILL. REV. STAT., 1955,
C. 37, SEC. 163F.  CF. DOWD V. UNITED STATES EX REL. COOK, 340 U.S., AT
209-210.  WE DO NOT HOLD, HOWEVER, THAT ILLINOIS MUST PURCHASE A
STENOGRAPHER'S TRANSCRIPT IN EVERY CASE WHERE A DEFENDANT CANNOT BUY
IT.  THE SUPREME COURT MAY FIND OTHER MEANS OF AFFORDING ADEQUATE AND
EFFECTIVE APPELLATE REVIEW TO INDIGENT DEFENDANTS.  FOR EXAMPLE, IT MAY
BE THAT BYSTANDERS' BILLS OF EXCEPTIONS OR OTHER METHODS OF REPORTING
TRIAL PROCEEDINGS COULD BE USED IN SOME CASES.  (FN17)  THE ILLINOIS
SUPREME COURT APPEARS TO HAVE BROAD POWER TO PROMULGATE RULES OF
PROCEDURE AND APPELLATE PRACTICE.  (FN18)  WE ARE CONFIDENT THAT THE
STATE WILL PROVIDE CORRECTIVE RULES TO MEET THE PROBLEM WHICH THIS CASE
LAYS BARE. 

THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS IS VACATED AND THE
CAUSE IS REMANDED TO THAT COURT FOR FURTHER ACTION NOT INCONSISTENT
WITH THE FOREGOING PARAGRAPH.  MR. JUSTICE FRANKFURTER JOINS IN THIS
DISPOSITION OF THE CASE.  VACATED AND REMANDED. 

FN1  ILL. REV. STAT., 1955, C. 38, SEC. 769.1. 

FN2  ILL. REV. STAT., 1953, C. 110, SEC. 259.70A (SUPREME COURT RULE
70A), NOW ILL. REV. STAT., 1955, C. 110, SEC. 101.65 (SUPREME COURT
RULE 65).  A WRIT OF ERROR MAY ALSO BE PROSECUTED ON A "MANDATORY
RECORD" KEPT BY THE CLERK, CONSISTING OF THE INDICTMENT, ARRAIGNMENT,
PLEA, VERDICT AND SENTENCE.  THE "MANDATORY RECORD" CAN BE OBTAINED
FREE OF CHARGE BY AN INDIGENT DEFENDANT.  IN SUCH INSTANCES REVIEW IS
LIMITED TO ERRORS ON THE FACE OF THE MANDATORY RECORD, AND THERE IS NO
REVIEW OF TRIAL ERRORS SUCH AS AN ERRONEOUS RULING ON THE ADMISSION OF
EVIDENCE.  SEE PEOPLE V. LOFTUS, 400 ILL. 432, 81 N.E.2D 495.  SEE ALSO
CULLEN V. STEVENS, 389 ILL. 35, 58 N.E.2D 456; A STUDY OF THE ILLINOIS
SUPREME COURT, 15 U. OF CHI.  L. REV. 107, 125. 

FN3 "A COMPLETE BILL OF EXCEPTIONS CONSISTS OF ALL PROCEEDINGS IN THE
CASE FROM THE TIME OF THE CONVENING OF THE COURT UNTIL THE TERMINATION
OF THE TRIAL.  IT INCLUDES ALL OF THE MOTIONS AND RULINGS OF THE TRIAL
COURT, EVIDENCE HEARD, INSTRUCTIONS AND OTHER MATTERS WHICH DO NOT COME
WITHIN THE CLERK'S MANDATORY RECORD."  PEOPLE EX REL.  IASELLO V.
MCKINLAY, 409 ILL. 120, 124-125, 98 N.E.2D 728, 730. 

FN4  IN ORAL ARGUMENT COUNSEL FOR ILLINOIS STATED: 

"WITH RESPECT TO THE SO-CALLED BYSTANDERS' BILL OF EXCEPTIONS OR THE
BILL OF EXCEPTIONS PREPARED FROM SOMEONE'S MEMORY IN CONDENSED AND
NARRATIVE FORM AND CERTIFIED TO BY THE TRIAL JUDGE - AS TO WHETHER
THAT'S AVAILABLE IN ILLINOIS I CAN SAY THAT EVERYBODY OUT THERE
UNDERSTANDS THAT IT IS BUT NOBODY HAS HEARD OF ITS EVER BEING ACTUALLY
USED IN A CRIMINAL CASE IN ILLINOIS IN RECENT YEARS.  I THINK IF YOU
WENT BACK BEFORE THE DAYS OF COURT REPORTING YOU WOULD FIND THEM BUT
NONE TODAY.  AND I WILL SAY THAT ILLINOIS HAS NOT SUGGESTED IN THE
BRIEF THAT SUCH A NARRATIVE TRANSCRIPT WOULD NECESSARILY OR EVEN
GENERALLY BE THE EQUIVALENT OF A VERBATIM TRANSCRIPT OF ALL OF THE
TRIAL. 

     *         *         *         *         * 

"THERE ISN'T ANY WAY THAT AN ILLINOIS CONVICTED PERSON IN A NON
CAPITAL CASE CAN OBTAIN A BILL OF EXCEPTIONS WITHOUT PAYING FOR IT." 

SEE PEOPLE V. YETTER, 386 ILL. 594, 54 N.E.2D 532; PEOPLE V. JOHNS,
388 ILL. 212, 57 N.E.2D 895; JENNINGS V. ILLINOIS, 342 U.S. 104, 109
110, ON REMAND, 411 ILL. 21, 23, 25, 27, 102 N.E.2D 824, 825-827;
PEOPLE V. JOYCE, 1 ILL. 2D 225, 230, 115 N.E.2D 262, 264-265; PEOPLE V.
LA FRANA, 4 ILL. 2D 261, 266, 122 N.E.2D 583, 585-586; PEOPLE EX REL.
IASELLO V. MCKINLAY, 409 ILL. 120, 98 N.E.2D 728; PEOPLE V. O'CONNELL,
411 ILL. 591, 104 N.E.2D 825. 

FN5  ILL. REV. STAT., 1955, C. 38, SEC. 769A. 

FN6  ILL. REV. STAT., 1955, C. 38, SECS. 826-832. 

FN7  ILL. REV. STAT., 1955, C. 37, SEC. 163F.  THIS SECTION PROVIDES
IN PART THAT "IN ANY CASE ARISING UNDER THE POST-CONVICTION HEARING ACT
IN WHICH THE PRESIDING JUDGE HAS DETERMINED THAT THE POST-CONVICTION
PETITION IS SUFFICIENT TO REQUIRE AN ANSWER, IT SHALL BE THE DUTY OF
THE OFFICIAL COURT REPORTER TO TRANSCRIBE, IN WHOLE OR IN PART, HIS
STENOGRAPHIC NOTES OF THE EVIDENCE INTRODUCED AT THE TRIAL IN WHICH THE
PETITIONER WAS CONVICTED, IF INSTRUCTED SO TO DO BY THE STATE'S
ATTORNEY OR BY THE COURT."    FN8  SEE NOTE 4, SUPRA, AND CASES THERE
CITED. 

FN9  A DISSENTING OPINION ARGUES THAT THE CONSTITUTIONAL QUESTION IS
NARROWER BECAUSE PETITIONERS ALLEGED THAT A TRANSCRIPT WAS NEEDED
RATHER THAN REQUIRED.  THE STATE MADE NO SUCH CLAIM AND ALL THE BRIEFS
AND ARGUMENTS ON BOTH SIDES TOGETHER WITH THE OPINION OF THE ILLINOIS
SUPREME COURT TREATED THE SOLE QUESTION AS BEING AS WE HAVE STATED IT. 

FN10  "YE SHALL DO NO UNRIGHTEOUSNESS IN JUDGMENT:  THOU SHALT NOT
RESPECT THE PERSON OF THE POOR, NOR HONOUR THE PERSON OF THE MIGHTY:
BUT IN RIGHTEOUSNESS SHALT THOU JUDGE THY NEIGHBOR."  LEVITICUS, C. 19,
V. 15. 

FN11 DISSENTING OPINIONS HERE ARGUE THAT THE ILLINOIS LAW SHOULD BE
UPHELD SINCE BY ITS TERMS IT APPLIES TO RICH AND POOR ALIKE.  BUT A LAW
NONDISCRIMINATORY ON ITS FACE MAY BE GROSSLY DISCRIMINATORY IN ITS
OPERATION.  FOR EXAMPLE, THIS COURT STRUCK DOWN THE SO-CALLED
"GRANDFATHER CLAUSE" OF THE OKLAHOMA CONSTITUTION AS DISCRIMINATORY
AGAINST NEGROES ALTHOUGH THAT CLAUSE WAS BY ITS TERMS
NONDISCRIMINATORY.  GUINN V. UNITED STATES, 238 U.S. 347.  SEE ALSO
LANE V. WILSON, 307 U.S. 268. 

FN12  SEE DISCUSSION IN HOVEY V. ELLIOTT, 167 U.S. 409. 

FN13  ILL. CONSTITUTION OF 1818, ART. VIII, SEC. 12.  SUBSTANTIALLY
THE SAME PROVISION HAS BEEN CARRIED OVER INTO THE PRESENT ILLINOIS
CONSTITUTION, ART. II, SEC. 19. 

FN14  SEE NOTE, REVERSALS IN ILLINOIS CRIMINAL CASES, 42 HARV. L.
REV. 566. 

FN15  SEE, E.G., ARIZ. CODE ANN., 1939, SEC. 44-2525; ARK. STAT.,
1947, SEC. 22-357; PAGE'S OHIO REV. CODE ANN., 1954, SEC. 2301.24; S.C.
CODE, 1952, SEC. 15-1903; MCKINNEY'S N.Y. LAWS, CRIM. CODE, 1945 (SUPP.
1955), SEC. 456.  SEE ALSO NOTE, 100 A.L.R. 321. 

FN16  THE CRIMINAL COURT OF APPEALS IN OKLAHOMA IN 1913 SPOKE IN THE
TRADITION OF THIS COUNTRY'S DEDICATION TO DUE PROCESS AND EQUAL
PROTECTION WHEN IT DECLARED THAT THE LAW IS NO RESPECTER OF PERSONS AND
SAID: 

"WE WANT THE PEOPLE OF OKLAHOMA TO UNDERSTAND, ONE AND ALL, THAT THE
POOREST AND MOST UNPOPULAR PERSON IN THE STATE  ...  CAN DEPEND UPON IT
THAT JUSTICE IS NOT FOR SALE IN OKLAHOMA, AND THAT NO ONE CAN BE
DEPRIVED OF HIS RIGHT OF APPEAL SIMPLY BECAUSE HE IS UNABLE TO PAY A
STENOGRAPHER TO EXTEND THE NOTES OF THE TESTIMONY."  JEFFRIES V. STATE,
9 OKLA. CR. 573, 576, 132 P. 823, 824. 

FN17  SEE WEATHERFORD V. WILSON, 3 ILL. (2 SCAM.)  253 (1840); PEOPLE
EX REL. MAHER V. WILLIAMS, 91 ILL. 87 (1878); PEOPLE EX REL. HALL V.
HOLDOM, 193 ILL. 319, 61 N.E. 1014 (1901); PEOPLE V. JOYCE, 1 ILL. 2D
225, 230, 115 N.E.2D 262, 264-265 (1953); MILLER V. UNITED STATES, 317
U.S. 192 (1942); NOTE, 15 ANN. CAS. 737. 

FN18  ILL. REV. STAT., 1955, C. 110, SEC. 2; ILL. REV. STAT., 1955,
C. 110, SEC. 101.65 (SUPREME COURT RULE 65); PEOPLE V. CALLOPY, 358
ILL. 11, 192 N.E. 634. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE JUDGMENT. 

THE ADMONITION OF DE TOCQUEVILLE NOT TO CONFUSE THE FAMILIAR WITH THE
NECESSARY HAS VIVID APPLICATION TO APPEALS IN CRIMINAL CASES.  THE
RIGHT TO AN APPEAL FROM A CONVICTION FOR CRIME IS TODAY SO ESTABLISHED
THAT THIS LEADS TO THE EASY ASSUMPTION THAT IT IS FUNDAMENTAL TO THE
PROTECTION OF LIFE AND LIBERTY AND THEREFORE A NECESSARY INGREDIENT OF
DUE PROCESS OF LAW.  "DUE PROCESS" IS, PERHAPS, THE LEAST FROZEN
CONCEPT OF OUR LAW - THE LEAST CONFINED TO HISTORY AND THE MOST
ABSORPTIVE OF POWERFUL SOCIAL STANDARDS OF A PROGRESSIVE SOCIETY.  BUT
NEITHER THE UNFOLDING CONTENT OF "DUE PROCESS" NOR THE PARTICULARIZED
SAFEGUARDS OF THE BILL OF RIGHTS DISREGARD PROCEDURAL WAYS THAT REFLECT
A NATIONAL HISTORIC POLICY.  IT IS SIGNIFICANT THAT NO APPEALS FROM
CONVICTIONS IN THE FEDERAL COURTS WERE AFFORDED (WITH ROUNDABOUT
EXCEPTIONS NEGLIGIBLE FOR PRESENT PURPOSES) FOR NEARLY A HUNDRED YEARS;
AND, DESPITE THE CIVILIZED STANDARDS OF CRIMINAL JUSTICE IN MODERN
ENGLAND, THERE WAS NO APPEAL FROM CONVICTIONS (AGAIN WITH EXCEPTIONS
NOT NOW PERTINENT) UNTIL 1907.  THUS, IT IS NOW SETTLED THAT DUE
PROCESS OF LAW DOES NOT REQUIRE A STATE TO AFFORD REVIEW OF CRIMINAL
JUDGMENTS. 

NOR DOES THE EQUAL PROTECTION OF THE LAWS DENY A STATE THE RIGHT TO
MAKE CLASSIFICATIONS IN LAW WHEN SUCH CLASSIFICATIONS ARE ROOTED IN
REASON.  "THE EQUALITY AT WHICH THE 'EQUAL PROTECTION' CLAUSE AIMS IS
NOT A DISEMBODIED EQUALITY.  THE FOURTEENTH AMENDMENT ENJOINS 'THE
EQUAL PROTECTION OF THE LAWS,' AND LAWS ARE NOT ABSTRACT
PROPOSITIONS."  TIGNER V. TEXAS, 310 U.S. 141, 147.  SINCE CAPITAL
OFFENSES ARE SUI GENERIS, A STATE MAY TAKE ACCOUNT OF THE
IRREVOCABILITY OF DEATH BY ALLOWING APPEALS IN CAPITAL CASES AND NOT IN
OTHERS.  AGAIN, "THE RIGHT OF APPEAL MAY BE ACCORDED BY THE STATE TO
THE ACCUSED UPON SUCH TERMS AS IN ITS WISDOM MAY BE DEEMED PROPER." 
MCKANE V. DURSTON, 153 U.S. 684, 687-688.  THE STATES HAVE EXERCISED
THIS DISCRIMINATING POWER.  THE DIFFERENT STATES AND THE SAME STATE
FROM TIME TO TIME HAVE CONDITIONED CRIMINAL APPEALS BY FIXING THE TIME
WITHIN WHICH AN APPEAL MAY BE TAKEN, BY DELIMITING THE SCOPE OF REVIEW,
BY SHAPING THE MECHANISM BY WHICH ALLEGED ERRORS MAY BE BROUGHT BEFORE
THE APPELLATE TRIBUNAL, AND SO FORTH. 

BUT NEITHER THE FACT THAT A STATE MAY DENY THE RIGHT OF APPEAL
ALTOGETHER NOR THE RIGHT OF A STATE TO MAKE AN APPROPRIATE
CLASSIFICATION, BASED ON DIFFERENCES IN CRIMES AND THEIR PUNISHMENT,
NOR THE RIGHT OF A STATE TO LAY DOWN CONDITIONS IT DEEMS APPROPRIATE
FOR CRIMINAL APPEALS, SANCTIONS DIFFERENTIATIONS BY A STATE THAT HAVE
NO RELATION TO A RATIONAL POLICY OF CRIMINAL APPEAL OR AUTHORIZES THE
IMPOSITION OF CONDITIONS THAT OFFEND THE DEEPEST PRESUPPOSITIONS OF OUR
SOCIETY.  SURELY IT WOULD NOT NEED ARGUMENT TO CONCLUDE THAT A STATE
COULD NOT, WITHIN ITS WIDE SCOPE OF DISCRETION IN THESE MATTERS, ALLOW
AN APPEAL FOR PERSONS CONVICTED OF CRIMES PUNISHABLE BY IMPRISONMENT OF
A YEAR OR MORE, ONLY ON PAYMENT OF A FEE OF $500.  ILLINOIS, OF COURSE,
HAS DONE NOTHING SO CRUDE AS THAT.  BUT ILLINOIS HAS SAID, IN EFFECT,
THAT THE SUPREME COURT OF ILLINOIS CAN CONSIDER ALLEGED ERRORS
OCCURRING IN A CRIMINAL TRIAL ONLY IF THE BASIS FOR DETERMINING WHETHER
THERE WERE ERRORS IS BROUGHT BEFORE IT BY A BILL OF EXCEPTIONS AND NOT
OTHERWISE.* FROM THIS IT FOLLOWS THAT ILLINOIS HAS DECREED THAT ONLY
DEFENDANTS WHO CAN AFFORD TO PAY FOR THE STENOGRAPHIC MINUTES OF A
TRIAL MAY HAVE TRIAL ERRORS REVIEWED ON APPEAL BY THE ILLINOIS SUPREME
COURT.  (SEE PEOPLE V. LA FRANA, 4 ILL. 2D 261, 266, 122 N.E.2D 583,
585-586.)  IT HAS THEREBY SHUT OFF MEANS OF APPELLATE REVIEW FOR
INDIGENT DEFENDANTS. 

*"THE RECORD IN THE TRIAL COURT MAY CONSIST ONLY OF THE MANDATORY
RECORD, VIZ., INDICTMENT, ARRAIGNMENT, PLEA, TRIAL AND JUDGMENT  ...  .
THIS APPEARS IN THE CLERK'S RECORD IN EVERY CASE  ...  .  THE RECORD
MAY INCLUDE ALSO A BILL OF EXCEPTIONS, WHICH CONSISTS OF ALL OF THE
MOTIONS AND RULINGS OF THE TRIAL COURT, EVIDENCE HEARD, INSTRUCTIONS,
AND OTHER MATTERS WHICH DO NOT COME DIRECTLY WITHIN THE CLERK'S
MANDATORY RECORD.  THIS MAY BE ONLY A PART OF THE RECORD ON REVIEW WHEN
A BILL OF EXCEPTIONS IS PRAYED AND ALLOWED, AND CERTIFIED BY THE COURT
...  .  THEREFORE, WHEN THE REVIEW IS HAD UPON THE COMMON-LAW RECORD,
THE SOLE MATTER ONLY THAT MAY BE CONSIDERED BY THE COURT IS ERROR
APPEARING UPON THE FACE OF THE RECORD, AND MATTERS MAY NOT BE ADDED BY
ARGUMENT, AFFIDAVIT, OR OTHERWISE, TO SUPPLY OR EXPAND THE RECORD.  THE
CASE MUST STAND OR FALL UPON THE ERRORS APPEARING IN THE RECORD.  OF
COURSE, WHERE THERE IS A BILL OF EXCEPTIONS, WHICH INCLUDES MOTIONS,
EVIDENCE, RULINGS ON EVIDENCE, INSTRUCTIONS, AND THE LIKE, AND SUCH
BILL OF EXCEPTIONS IS MADE A PART OF THE RECORD, ERRORS MAY BE REACHED
BY THE REMEDY OF WRIT OF ERROR  ...  ."  PEOPLE V. LOFTUS, 400 ILL.
432, 433-434, 81 N.E.2D 495, 497-498. 

THIS COURT WOULD HAVE TO BE WILLFULLY BLIND NOT TO KNOW THAT THERE
HAVE IN THE PAST BEEN PREJUDICIAL TRIAL ERRORS WHICH CALLED FOR
REVERSAL OF CONVICTIONS OF INDIGENT DEFENDANTS, AND THAT THE NUMBER OF
THOSE WHO HAVE NOT HAD THE MEANS FOR PAYING FOR THE COST OF A BILL OF
EXCEPTIONS IS NOT SO NEGLIGIBLE AS TO INVOKE WHATEVER TRUTH THERE MAY
BE IN THE MAXIM DE MINIMIS. 

LAW ADDRESSES ITSELF TO ACTUALITIES.  IT DOES NOT FACE ACTUALITY TO
SUGGEST THAT ILLINOIS AFFORDS EVERY CONVICTED PERSON, FINANCIALLY
COMPETENT OR NOT, THE OPPORTUNITY TO TAKE AN APPEAL, AND THAT IT IS NOT
ILLINOIS THAT IS RESPONSIBLE FOR DISPARITY IN MATERIAL CIRCUMSTANCES. 
OF COURSE A STATE NEED NOT EQUALIZE ECONOMIC CONDITIONS.  A MAN OF
MEANS MAY BE ABLE TO AFFORD THE RETENTION OF AN EXPENSIVE, ABLE COUNSEL
NOT WITHIN REACH OF A POOR MAN'S PURSE.  THOSE ARE CONTINGENCIES OF
LIFE WHICH ARE HARDLY WITHIN THE POWER, LET ALONE THE DUTY, OF A STATE
TO CORRECT OR CUSHION.  BUT WHEN A STATE DEEMS IT WISE AND JUST THAT
CONVICTIONS BE SUSCEPTIBLE TO REVIEW BY AN APPELLATE COURT, IT CANNOT
BY FORCE OF ITS EXACTIONS DRAW A LINE WHICH PRECLUDES CONVICTED
INDIGENT PERSONS, FORSOOTH ERRONEOUSLY CONVICTED, FROM SECURING SUCH A
REVIEW MERELY BY DISABLING THEM FROM BRINGING TO THE NOTICE OF AN
APPELLATE TRIBUNAL ERRORS OF THE TRIAL COURT WHICH WOULD UPSET THE
CONVICTION WERE PRACTICAL OPPORTUNITY FOR REVIEW NOT FORECLOSED. 

TO SANCTION SUCH A RUTHLESS CONSEQUENCE, INEVITABLY RESULTING FROM A
MONEY HURDLE ERECTED BY A STATE, WOULD JUSTIFY A LATTER-DAY ANATOLE
FRANCE TO ADD ONE MORE ITEM TO HIS IRONIC COMMENTS ON THE "MAJESTIC
EQUALITY" OF THE LAW.  "THE LAW, IN ITS MAJESTIC EQUALITY, FORBIDS THE
RICH AS WELL AS THE POOR TO SLEEP UNDER BRIDGES, TO BEG IN THE STREETS,
AND TO STEAL BREAD."  (JOHN COURNOS, A MODERN PLUTARCH, P. 27.) 

THE STATE IS NOT FREE TO PRODUCE SUCH A SQUALID DISCRIMINATION.  IF
IT HAS A GENERAL POLICY OF ALLOWING CRIMINAL APPEALS, IT CANNOT MAKE
LACK OF MEANS AN EFFECTIVE BAR TO THE EXERCISE OF THIS OPPORTUNITY. 
THE STATE CANNOT KEEP THE WORD OF PROMISE TO THE EAR OF THOSE ILLEGALLY
CONVICTED AND BREAK IT TO THEIR HOPE.  BUT IN ORDER TO AVOID OR
MINIMIZE ABUSE AND WASTE, A STATE MAY APPROPRIATELY HEDGE ABOUT THE
OPPORTUNITY TO PROVE A CONVICTION WRONG.  WHEN A STATE NOT ONLY GIVES
LEAVE FOR APPELLATE CORRECTION OF TRIAL ERRORS BUT MUST PAY FOR THE
COST OF ITS EXERCISE BY THE INDIGENT, IT MAY PROTECT ITSELF SO THAT
FRIVOLOUS APPEALS ARE NOT SUBSIDIZED AND PUBLIC MONEYS NOT NEEDLESSLY
SPENT.  THE GROWING EXPERIENCE OF REFORMS IN APPELLATE PROCEDURE AND
SENSIBLE, ECONOMIC MODES FOR SECURING REVIEW STILL TO BE DEVISED, MAY
BE DRAWN UPON TO THE END THAT THE STATE WILL NEITHER BOLT THE DOOR TO
EQUAL JUSTICE NOR SUPPORT A WASTEFUL ABUSE OF THE APPELLATE PROCESS. 

IT FOLLOWS THAT THE PETITIONERS MUST BE ACCORDED AN APPEAL FROM THEIR
CONVICTION, EITHER BY HAVING THE STATE FURNISH THEM A TRANSCRIPT OF THE
PROCEEDINGS IN THE TRIAL COURT, OR BY ANY OTHER MEANS, OF WHICH WE HAVE
NOT BEEN ADVISED, THAT MAY BE AVAILABLE UNDER ILLINOIS LAW, SO THAT THE
ERRORS OF WHICH THEY COMPLAIN CAN EFFECTIVELY BE BROUGHT FOR REVIEW TO
THE ILLINOIS SUPREME COURT.  IT IS NOT FOR US TO TELL ILLINOIS WHAT
MEANS ARE OPEN TO THE INDIGENT AND MUST BE CHOSEN.  ILLINOIS MAY
PRESCRIBE ANY MEANS THAT ARE WITHIN THE WIDE AREA OF ITS CONSTITUTIONAL
DISCRETION. 

THE CASE OF THESE PETITIONERS IS THAT THE ONLY ADEQUATE MEANS OF
BRINGING FOR REVIEW ALLEGEDLY FATAL TRIAL DEFECTS RESULTING IN A
POTENTIALLY REVERSIBLE CONVICTION WAS A BILL OF EXCEPTIONS WHICH THEIR
POVERTY PRECLUDED THEM FROM SECURING.  THE ORDER OF THE ILLINOIS
SUPREME COURT AND THE ARGUMENT OF THE ATTORNEY GENERAL OF ILLINOIS IN
SUPPORT OF THAT COURT'S JUDGMENT APPARENTLY ASSUMED THAT THAT WAS THE
CASE.  CONSIDERING THE NATURE OF THE ISSUE THUS RAISED BY PETITIONERS
APPEARING FOR THEMSELVES, IT WOULD SAVOR OF DISRESPECT TO THE SUPREME
COURT OF ILLINOIS FOR US TO FIND AN IMPLICATION IN ITS UNQUALIFIED
REJECTION OF THE CLAIMS OF THE PETITIONERS THAT AN EFFECTIVE REVIEW
OTHER THAN BY BILL OF EXCEPTIONS COULD BE HAD IN THE PRESENT
SITUATION.  CF. DIAZ V. GONZALEZ, 261 U.S. 102, 105-106.  WHEN THE CASE
AGAIN REACHES THE ILLINOIS SUPREME COURT, THAT COURT MAY, OF COURSE,
FIND WITHIN THE EXISTING RESOURCES OF ILLINOIS LAW MEANS OF ACCORDING
TO PETITIONERS EFFECTIVE SATISFACTION OF THEIR CONSTITUTIONAL RIGHT NOT
TO BE DENIED THE EQUAL PROTECTION OF THE LAWS. 

WE MUST BE MINDFUL OF THE FACT THAT THERE ARE UNDOUBTEDLY CONVICTS
UNDER CONFINEMENT IN ILLINOIS PRISONS, IN NUMBERS UNKNOWN TO US AND
UNDER UNAPPEALED SENTENCES IMPOSED YEARS AGO, WHO WILL FIND
JUSTIFICATION IN THIS OPINION, UNLESS PROPERLY QUALIFIED, FOR
PROCEEDINGS BOTH IN THE STATE AND THE FEDERAL COURTS UPON CLAIMS THAT
THEY ARE UNDER ILLEGAL DETENTION IN THAT THEY HAVE BEEN DENIED A RIGHT
UNDER THE FEDERAL CONSTITUTION.  IT WOULD BE AN EASY ANSWER THAT A
CLAIM THAT WAS NOT DULY ASSERTED - AS WAS THE TIMELY CLAIM BY THESE
PETITIONERS - CANNOT BE ASSERTED NOW.  THE ANSWER IS TOO EASY.  CANDOR
COMPELS ACKNOWLEDGEMENT THAT THE DECISION RENDERED TODAY IS A NEW
RULING.  CANDOR COMPELS THE FURTHER ACKNOWLEDGEMENT THAT IT WOULD NOT
BE UNREASONABLE FOR ALL INDIGENT DEFENDANTS, NOW INCARCERATED, WHO AT
THE TIME WERE UNABLE TO PAY FOR TRANSCRIPTS OF PROCEEDINGS IN TRIAL
COURTS, TO URGE THAT THEY WERE JUSTIFIED IN ASSUMING THAT SUCH A
RESTRICTION UPON CRIMINAL APPEALS IN ILLINOIS WAS PRESUMABLY A VALID
EXERCISE OF THE STATE'S POWER AT THE TIME WHEN THEY SUFFERED ITS
CONSEQUENCES.  THEREFORE IT COULD WELL BE CLAIMED THAT THEREBY ANY
CONSCIOUS WAIVER OF A CONSTITUTIONAL RIGHT IS NEGATIVED. 

THE COURT OUGHT NEITHER TO RELY ON CASUISTIC ARGUMENTS IN DENYING
CONSTITUTIONAL CLAIMS, NOR DEEM ITSELF IMPRISONED WITHIN A FORMAL,
ABSTRACT DILEMMA.  THE JUDICIAL CHOICE IS NOT LIMITED TO A NEW RULING
NECESSARILY RETROSPECTIVE, OR TO REJECTION OF WHAT THE REQUIREMENTS OF
EQUAL PROTECTION OF THE LAWS, AS NOW PERCEIVED, REQUIRE.  FOR SOUND
REASONS, LAW GENERALLY SPEAKS PROSPECTIVELY.  MORE THAN A HUNDRED YEARS
AGO, FOR INSTANCE, THE SUPREME COURT OF OHIO, CONFRONTED WITH A PROBLEM
NOT UNLIKE THE ONE BEFORE US, FOUND NO DIFFICULTY IN DOING SO WHEN IT
CONCLUDED THAT LEGISLATIVE DIVORCES WERE UNCONSTITUTIONAL.  BINGHAM V.
MILLER, 17 OHIO 445.  IN ARRIVING AT A NEW PRINCIPLE, THE JUDICIAL
PROCESS IS NOT IMPOTENT TO DEFINE ITS SCOPE AND LIMITS.  ADJUDICATION
IS NOT A MECHANICAL EXERCISE NOR DOES IT COMPEL "EITHER/OR"
DETERMINATIONS.    WE SHOULD NOT INDULGE IN THE FICTION THAT THE LAW
NOW ANNOUNCED HAS ALWAYS BEEN THE LAW AND, THEREFORE, THAT THOSE WHO
DID NOT AVAIL THEMSELVES OF IT WAIVED THEIR RIGHTS.  IT IS MUCH MORE
CONDUCIVE TO LAW'S SELF-RESPECT TO RECOGNIZE CANDIDLY THE
CONSIDERATIONS THAT GIVE PROSPECTIVE CONTENT TO A NEW PRONOUNCEMENT OF
LAW.  THAT THIS IS CONSONANT WITH THE SPIRIT OF OUR LAW AND JUSTIFIED
BY THOSE CONSIDERATIONS OF REASON WHICH SHOULD DOMINATE THE LAW, HAS
BEEN LUMINOUSLY EXPOUNDED BY MR. JUSTICE CARDOZO, SHORTLY BEFORE HE
CAME HERE AND IN AN OPINION WHICH HE WROTE FOR THE COURT.  SEE ADDRESS
OF CHIEF JUDGE CARDOZO, 55 REPORT OF NEW YORK STATE BAR ASSN., 263, 294
ET SEQ., AND GREAT NORTHERN R. CO. V. SUNBURST OIL & REFINING CO., 287
U.S. 358, 363-366.  SUCH A MOLDING OF LAW, BY WAY OF ADJUDICATION, IS
PECULIARLY APPLICABLE TO THE PROBLEM AT HAND.  THE RULE OF LAW
ANNOUNCED THIS DAY SHOULD BE DELIMITED AS INDICATED. 

MR. JUSTICE BURTON AND MR. JUSTICE MINTON, WHOM MR. JUSTICE REED AND
MR. JUSTICE HARLAN JOIN, DISSENTING. 

WHILE WE DO NOT DISAGREE WITH THE DESIRABILITY OF THE POLICY OF
SUPPLYING AN INDIGENT DEFENDANT WITH A FREE TRANSCRIPT OF TESTIMONY IN
A CASE LIKE THIS, WE DO NOT AGREE THAT THE CONSTITUTION OF THE UNITED
STATES COMPELS EACH STATE TO DO SO WITH THE CONSEQUENCE THAT,
REGARDLESS OF THE STATE'S LEGISLATION AND PRACTICE TO THE CONTRARY,
THIS COURT MUST HOLD INVALID STATE APPELLATE PROCEEDINGS WHEREVER A
REQUIRED TRANSCRIPT HAS NOT BEEN PROVIDED WITHOUT COST TO AN INDIGENT
LITIGANT WHO HAS REQUESTED THAT IT BE SO PROVIDED.  IT IS ONE THING FOR
CONGRESS AND THIS COURT TO PRESCRIBE SUCH PROCEDURE FOR THE FEDERAL
COURTS.  IT IS QUITE ANOTHER FOR THIS COURT TO HOLD THAT THE
CONSTITUTION OF THE UNITED STATES HAS PRESCRIBED IT FOR ALL STATE
COURTS. 

IN THE ADMINISTRATION OF LOCAL LAW THE CONSTITUTION HAS BEEN
INTERPRETED AS PERMITTING THE SEVERAL STATES GENERALLY TO FOLLOW THEIR
OWN FAMILIAR PROCEDURE AND PRACTICE.  IN SO DOING THIS COURT HAS
RECOGNIZED THE WIDELY DIFFERING BUT LOCALLY APPROVED PROCEDURES OF THE
SEVERAL STATES.  WHETHER APPROVING OF THE PARTICULAR PROCEDURES OR NOT,
THIS COURT HAS TREATED THEM LARGELY AS MATTERS RESERVED TO THE STATES
AND WITHIN THE BROAD RANGE OF PERMISSIBLE "DUE PROCESS" IN A
CONSTITUTIONAL SENSE. 

ILLINOIS, AS THE MAJORITY ADMIT, COULD THUS DENY AN APPEAL ALTOGETHER
IN A CRIMINAL CASE WITHOUT DENYING DUE PROCESS OF LAW.  MCKANE V.
DURSTON, 153 U.S. 684.  TO ALLOW AN APPEAL AT ALL, BUT WITH SOME
DIFFERENCE AMONG CONVICTED PERSONS AS TO THE TERMS UPON WHICH AN APPEAL
IS EXERCISED, DOES NOT DENY DUE PROCESS.  IT MAY PRESENT A QUESTION OF
EQUAL PROTECTION.  THE PETITIONERS URGE THAT POINT HERE. 

WHETHER THE ILLINOIS STATUTE DENIES EQUAL PROTECTION DEPENDS UPON
WHETHER, FIRST, IT IS AN ARBITRARY AND UNREASONABLE DISTINCTION FOR THE
LEGISLATURE TO MAKE, BETWEEN THOSE CONVICTED OF A CAPITAL OFFENSE AND
THOSE CONVICTED OF A LESSER OFFENSE, AS TO THEIR RIGHT TO A FREE
TRANSCRIPT.  IT SEEMS TO US THE WHOLE PRACTICE OF CRIMINAL LAW TEACHES
THAT THERE ARE VALID DISTINCTIONS BETWEEN THE WAYS IN WHICH CRIMINAL
CASES MAY BE LOOKED UPON AND TREATED WITHOUT VIOLATING THE
CONSTITUTION.  VERY OFTEN WE HAVE CASES WHERE THE CONVICTED SEEK ONLY
TO AVOID THE DEATH PENALTY.  AS ALL PRACTICING LAWYERS KNOW, WHO HAVE
DEFENDED PERSONS CHARGED WITH CAPITAL OFFENSES, OFTEN THE ONLY GOAL
POSSIBLE IS TO AVOID THE DEATH PENALTY.  THERE IS SOMETHING PRETTY
FINAL ABOUT A DEATH SENTENCE. 

IF THE ACTUAL PRACTICE OF LAW RECOGNIZES THIS DISTINCTION BETWEEN
CAPITAL AND NONCAPITAL CASES, WE SEE NO REASON WHY THE LEGISLATURE OF A
STATE MAY NOT EXTEND THE FULL BENEFIT OF APPEAL TO THOSE CONVICTED OF
CAPITAL OFFENSES AND DENY IT TO THOSE CONVICTED OF LESSER OFFENSES.  IT
IS THE UNIVERSAL EXPERIENCE IN THE ADMINISTRATION OF CRIMINAL JUSTICE
THAT THOSE CHARGED WITH CAPITAL OFFENSES ARE GRANTED SPECIAL
CONSIDERATIONS.  EXAMPLES OF SUCH WILL READILY OCCUR.  ALL STATES ALLOW
A LARGER NUMBER OF PEREMPTORY CHALLENGES OF JURORS IN CAPITAL CASES
THAN IN OTHER CASES.  MOST STATES PERMIT CHANGES OF VENUE IN CAPITAL
CASES ON DIFFERENT TERMS THAN IN OTHER CRIMINAL CASES.  SOME STATES
REQUIRE A VERDICT OF 12 JURORS FOR CONVICTION IN A CAPITAL CASE BUT
ALLOW LESS THAN 12 JURORS TO CONVICT IN NONCAPITAL CASES.  ON THE OTHER
SIDE OF THE COIN, MOST STATES PROVIDE NO STATUTE OF LIMITATIONS IN
CAPITAL CASES.  WE THINK THE DISTINCTION HERE MADE BY THE ILLINOIS
STATUTE BETWEEN CAPITAL CASES AND NONCAPITAL CASES IS A REASONABLE AND
VALID ONE. 

SECONDLY, CERTAINLY ILLINOIS DOES NOT DENY EQUAL PROTECTION TO
CONVICTED DEFENDANTS WHEN THE TERMS OF APPEAL ARE OPEN TO ALL, ALTHOUGH
SOME MAY NOT BE ABLE TO AVAIL THEMSELVES OF THE FULL APPEAL BECAUSE OF
THEIR POVERTY.  ILLINOIS IS NOT BOUND TO MAKE THE DEFENDANTS
ECONOMICALLY EQUAL BEFORE ITS BAR OF JUSTICE.  FOR A STATE TO DO SO MAY
BE A DESIRABLE SOCIAL POLICY, BUT WHAT MAY BE A GOOD LEGISLATIVE POLICY
FOR A STATE IS NOT NECESSARILY REQUIRED BY THE CONSTITUTION OF THE
UNITED STATES.   PERSONS CHARGED WITH CRIMES STAND BEFORE THE LAW WITH
VARYING DEGREES OF ECONOMIC AND SOCIAL ADVANTAGE.  SOME CAN AFFORD
BETTER LAWYERS AND BETTER INVESTIGATIONS OF THEIR CASES.  SOME CAN
AFFORD BAIL, SOME CANNOT.  WHY FIX BAIL AT ANY REASONABLE SUM IF A POOR
MAN CAN'T MAKE IT? 

THE CONSTITUTION REQUIRES THE EQUAL PROTECTION OF THE LAW, BUT IT
DOES NOT REQUIRE THE STATES TO PROVIDE EQUAL FINANCIAL MEANS FOR ALL
DEFENDANTS TO AVAIL THEMSELVES OF SUCH LAWS. 

MR. JUSTICE BLACK'S OPINION IS NOT LIMITED TO THE FUTURE.  IT HOLDS
THAT A PAST AS WELL AS A FUTURE CONVICTION OF CRIME IN A STATE COURT IS
INVALID WHERE THE STATE HAS FAILED TO FURNISH A FREE TRANSCRIPT TO AN
INDIGENT DEFENDANT WHO HAS SOUGHT, AS PETITIONER DID HERE, TO OBTAIN A
REVIEW OF A RULING THAT WAS DEPENDENT UPON THE EVIDENCE IN HIS CASE. 
THIS IS AN INTERFERENCE WITH STATE POWER FOR WHAT MAY BE A DESIRABLE
RESULT, BUT WHICH WE BELIEVE TO BE WITHIN THE FIELD OF LOCAL OPTION. 

WHETHER ILLINOIS WOULD PERMIT APPEALS ADEQUATE TO PASS UPON ALLEGED
ERRORS ON BILLS OF EXCEPTION, PREPARED BY COUNSEL AND APPROVED BY
JUDGES, WITHOUT REQUIRING THAT FULL STENOGRAPHIC NOTES BE TRANSCRIBED
IS NOT BEFORE US.  WE ASSUME THAT IT WOULD. 

MR. JUSTICE HARLAN, DISSENTING. 

MUCH AS I WOULD PREFER TO SEE FREE TRANSCRIPTS FURNISHED TO INDIGENT
DEFENDANTS IN ALL FELONY CASES, I FIND MYSELF UNABLE TO JOIN IN THE
COURT'S HOLDING THAT THE FOURTEENTH AMENDMENT REQUIRES A STATE TO DO SO
OR TO FURNISH INDIGENTS WITH EQUIVALENT MEANS OF EXERCISING A RIGHT TO
APPEAL.  THE IMPORTANCE OF THE QUESTION DECIDED BY THE COURT JUSTIFIES
ADDING TO WHAT MR. JUSTICE BURTON AND MR. JUSTICE MINTON HAVE WRITTEN
MY FURTHER GROUNDS FOR DISSENTING AND THE REASONS WHY I FIND THE
MAJORITY OPINIONS UNSATISFYING. 

1.  INADEQUACY OF THE RECORD.  - I WOULD DECLINE TO DECIDE THE
CONSTITUTIONAL QUESTION TENDERED BY PETITIONERS BECAUSE THE RECORD DOES
NOT PRESENT IT IN THAT "CLEAN-CUT," "CONCRETE," AND "UNCLOUDED" FORM
USUALLY DEMANDED FOR A DECISION OF CONSTITUTIONAL ISSUES.  RESCUE ARMY
V. MUNICIPAL COURT OF LOS ANGELES, 331 U.S. 549, 584.  IN MY JUDGMENT
THE CASE SHOULD BE REMANDED TO THE ILLINOIS COURTS FOR FURTHER
PROCEEDINGS SO THAT WE MIGHT KNOW THE PRECISE NATURE OF PETITIONERS'
CLAIM BEFORE PASSING ON IT. 

THE RECORD CONTAINS NOTHING MORE DEFINITE THAN THE ALLEGATION THAT
"PETITIONERS ARE POOR PERSONS WITH NO MEANS OF PAYING THE NECESSARY
FEES TO ACQUIRE THE TRANSCRIPT AND COURT RECORDS NEEDED TO PROSECUTE AN
APPEAL FROM THEIR CONVICTIONS."  FOR MY PART I CANNOT TELL WHETHER
PETITIONERS' CLAIM IS THAT A TRANSCRIPT WAS "NEEDED" BECAUSE (A) UNDER
ILLINOIS LAW A TRANSCRIPT IS A PREREQUISITE TO APPELLATE REVIEW OF
TRIAL ERRORS, (FN1) OR (B) AS A FACTUAL MATTER PETITIONERS COULD NOT
PREPARE AN ADEQUATE BILL OF EXCEPTIONS SHORT OF HAVING A TRANSCRIPT. 

IF THE CLAIM IS THAT A TRANSCRIPT WAS LEGALLY NECESSARY, IT IS BASED
ON AN ERRONEOUS VIEW OF ILLINOIS LAW.  THE ILLINOIS CASES CITED BY THE
PETITIONERS ESTABLISH ONLY THAT TRIAL ERRORS CANNOT BE REVIEWED IN THE
ABSENCE OF A BILL OF EXCEPTIONS, AND NOT THAT A TRANSCRIPT IS ESSENTIAL
TO THE PREPARATION OF SUCH A BILL.  (FN2)  TO THE CONTRARY, AN UNBROKEN
LINE OF ILLINOIS CASES ESTABLISHES THAT A BILL OF EXCEPTIONS MAY
CONSIST SIMPLY OF A NARRATIVE ACCOUNT OF THE TRIAL PROCEEDINGS PREPARED
FROM ANY AVAILABLE SOURCES - FOR EXAMPLE, FROM THE NOTES OR MEMORY OF
THE TRIAL JUDGE, COUNSEL, THE DEFENDANT, OR BYSTANDERS - AND THAT THE
TRIAL JUDGE MUST EITHER CERTIFY SUCH A BILL AS ACCURATE OR POINT OUT
THE CORRECTIONS TO BE MADE.  (FN3)  VIEWED IN THE LIGHT OF THESE CASES,
THE ONLY CONSTITUTIONAL QUESTION PRESENTED BY PETITIONERS' BARE
ALLEGATION THAT THEY WERE UNABLE TO PURCHASE A TRANSCRIPT WOULD BE: IS
AN INDIGENT DEFENDANT, WHO HAS NOT SHOWN THAT HE IS UNABLE TO OBTAIN
FULL APPELLATE REVIEW OF HIS CONVICTION BY A NARRATIVE BILL OF
EXCEPTIONS, CONSTITUTIONALLY ENTITLED TO THE ADDED ADVANTAGE OF A FREE
TRANSCRIPT OF THE TRIAL PROCEEDINGS FOR USE AS A BILL OF EXCEPTIONS?  I
NEED HARDLY PAUSE TO SUGGEST THAT SUCH A CLAIM WOULD PRESENT NO
SUBSTANTIAL CONSTITUTIONAL QUESTION. 

THE COURT, HOWEVER, EITHER TAKES JUDICIAL NOTICE THAT AS A PRACTICAL
MATTER THE ALTERNATIVE METHODS OF PREPARING A BILL OF EXCEPTIONS ARE
INADEQUATE OR FINDS IN PETITIONERS' CLAIMS AN ALLEGATION OF FACT THAT
THEIR CIRCUMSTANCES WERE SUCH AS TO PREVENT THEM FROM UTILIZING THE
ALTERNATIVE METHODS.  BUT EVEN ACCEPTING THIS READING OF THE PLEADINGS,
THE CONSTITUTIONAL QUESTION TENDERED SHOULD NOT BE DECIDED WITHOUT
KNOWING THE CIRCUMSTANCES UNDERLYING THE CONCLUSORY ALLEGATION OF
"NEED."  PETITIONERS' INDIGENCE, THE ONLY UNDERLYING "FACT" ALLEGED,
DID NOT IN ITSELF NECESSARILY PRECLUDE THEM FROM PREPARING A NARRATIVE
BILL OF EXCEPTIONS, AND WE ARE TOLD NOTHING AS TO THE OTHER
CIRCUMSTANCES WHICH PREVENTED THEM FROM DOING SO.  THE RECORD DOES NOT
EVEN DISCLOSE WHETHER PETITIONERS WERE INCARCERATED DURING THE PERIOD
IN WHICH THE BILL OF EXCEPTIONS HAD TO BE FILED, OR WHETHER THEY WERE
REPRESENTED BY COUNSEL AT THE TRIAL.  WE ARE LEFT TO SPECULATE ON THE
NATURE OF THE ALLEGED TRIAL ERRORS AND THE SCOPE OF THE BILL OF
EXCEPTIONS NEEDED TO PRESENT THEM.  WHO CAN SAY THAT IF WE KNEW THE
FACTS WE MIGHT NOT HAVE BEFORE US A MUCH NARROWER CONSTITUTIONAL
QUESTION THAN THE ONE DECIDED TODAY, OR PERHAPS NO SUCH QUESTION AT
ALL.  IN THESE CIRCUMSTANCES, I WOULD FOLLOW THE SALUTARY POLICY "OF
AVOIDING CONSTITUTIONAL DECISIONS UNTIL THE ISSUES ARE PRESENTED WITH
CLARITY, PRECISION AND CERTAINTY," RESCUE ARMY V. MUNICIPAL COURT OF
LOS ANGELES, SUPRA, AT P. 576, AND WOULD REFUSE TO DECIDE THE
CONSTITUTIONAL QUESTION IN THE ABSTRACT FORM IN WHICH IT HAS BEEN
PRESENTED HERE. 

ACCORDING TO PETITIONERS' TABULATION, NO MORE THAN 29 STATES PROVIDE
FREE TRANSCRIPTS AS OF RIGHT TO INDIGENTS CONVICTED OF NON-CAPITAL
CRIMES.  THUS THE SWEEPING CONSTITUTIONAL PRONOUNCEMENT MADE BY THE
COURT TODAY WILL TOUCH THE LAWS OF AT LEAST 19 STATES (FN4) AND WILL
CREATE A HOST OF PROBLEMS AFFECTING THE STATUS OF AN UNKNOWN MULTITUDE
OF INDIGENT CONVICTS.  A DECISION HAVING SUCH WIDE IMPACT SHOULD NOT BE
MADE UPON A RECORD AS OBSCURE AS THIS, ESPECIALLY WHERE THERE ARE MEANS
READY AT HAND TO HAVE CLARIFIED THE ISSUE SOUGHT TO BE PRESENTED. 

HOWEVER, SINCE I STAND ALONE IN MY VIEW THAT THE COURT SHOULD REFRAIN
FROM DECIDING THE BROAD QUESTION URGED UPON US UNTIL THE NECESSITY FOR
SUCH A DECISION BECOMES MANIFEST, I DEEM IT APPROPRIATE ALSO TO NOTE MY
DISAGREEMENT WITH THE COURT'S DECISION OF THAT QUESTION.  INASMUCH AS
THE COURT'S DECISION IS NOT - AND ON THIS RECORD CANNOT BE - BASED ON
ANY FACTS PECULIAR TO THIS CASE, I CONSIDER THAT QUESTION TO BE:  IS AN
INDIGENT DEFENDANT WHO "NEEDS" A TRANSCRIPT IN ORDER TO APPEAL
CONSTITUTIONALLY ENTITLED, REGARDLESS OF THE NATURE OF THE
CIRCUMSTANCES PRODUCING THAT NEED, TO HAVE THE STATE EITHER FURNISH A
FREE TRANSCRIPT OR TAKE SOME OTHER ACTION TO ASSURE THAT HE DOES IN
FACT OBTAIN FULL APPELLATE REVIEW? 

2.  EQUAL PROTECTION.  - IN FINDING AN ANSWER TO THAT QUESTION IN THE
EQUAL PROTECTION CLAUSE, THE COURT HAS PAINTED WITH A BROAD BRUSH.  IT
IS SAID THAT A STATE CANNOT DISCRIMINATE BETWEEN THE "RICH" AND THE
"POOR" IN ITS SYSTEM OF CRIMINAL APPEALS.  THAT STATEMENT OF COURSE
COMMANDS SUPPORT, BUT IT HARDLY SHEDS LIGHT ON THE TRUE CHARACTER OF
THE PROBLEM CONFRONTING US HERE.  ILLINOIS HAS NOT IMPOSED ANY
ARBITRARY CONDITIONS UPON THE EXERCISE OF THE RIGHT OF APPEAL NOR ANY
REQUIREMENTS UNNECESSARY TO THE EFFECTIVE WORKING OF ITS APPELLATE
SYSTEM.  TRIAL ERRORS CANNOT BE REVIEWED WITHOUT AN APPROPRIATE RECORD
OF THE PROCEEDINGS BELOW; IF A TRANSCRIPT IS USED, IT IS SURELY NOT
UNREASONABLE TO REQUIRE THE APPELLANT TO BEAR ITS COST; AND ILLINOIS
HAS NOT FORECLOSED ANY OTHER FEASIBLE MEANS OF PREPARING SUCH A
RECORD.  NOR IS THIS A CASE WHERE THE STATE'S OWN ACTION HAS PREVENTED
A DEFENDANT FROM APPEALING.  CF. DOWD V. UNITED STATES EX REL. COOK,
340 U.S. 206; COCHRAN V. KANSAS, 316 U.S. 255.  ALL THAT ILLINOIS HAS
DONE IS TO FAIL TO ALLEVIATE THE CONSEQUENCES OF DIFFERENCES IN
ECONOMIC CIRCUMSTANCES THAT EXIST WHOLLY APART FROM ANY STATE ACTION. 

THE COURT THUS HOLDS THAT, AT LEAST IN THIS AREA OF CRIMINAL APPEALS,
THE EQUAL PROTECTION CLAUSE IMPOSES ON THE STATES AN AFFIRMATIVE DUTY
TO LIFT THE HANDICAPS FLOWING FROM DIFFERENCES IN ECONOMIC
CIRCUMSTANCES.  THAT HOLDING PRODUCES THE ANOMALOUS RESULT THAT A
CONSTITUTIONAL ADMONITION TO THE STATES TO TREAT ALL PERSONS EQUALLY
MEANS IN THIS INSTANCE THAT ILLINOIS MUST GIVE TO SOME WHAT IT REQUIRES
OTHERS TO PAY FOR.  GRANTING THAT SUCH A CLASSIFICATION WOULD BE
REASONABLE, IT DOES NOT FOLLOW THAT A STATE'S FAILURE TO MAKE IT CAN BE
REGARDED AS DISCRIMINATION.  IT MAY AS ACCURATELY BE SAID THAT THE REAL
ISSUE IN THIS CASE IS NOT WHETHER ILLINOIS HAS DISCRIMINATED BUT
WHETHER IT HAS A DUTY TO DISCRIMINATE.    I DO NOT UNDERSTAND THE COURT
TO DISPUTE EITHER THE NECESSITY FOR A BILL OF EXCEPTIONS OR THE
REASONABLENESS OF THE GENERAL REQUIREMENT THAT THE TRIAL TRANSCRIPT, IF
USED IN ITS PREPARATION, BE PAID FOR BY THE APPEALING PARTY.  THE COURT
FINDS IN THE OPERATION OF THESE REQUIREMENTS, HOWEVER, AN INVIDIOUS
CLASSIFICATION BETWEEN THE "RICH" AND THE "POOR."  BUT NO ECONOMIC
BURDEN ATTENDANT UPON THE EXERCISE OF A PRIVILEGE BEARS EQUALLY UPON
ALL, AND IN OTHER CIRCUMSTANCES THE RESULTING DIFFERENTIATION IS NOT
TREATED AS AN INVIDIOUS CLASSIFICATION BY THE STATE, EVEN THOUGH
DISCRIMINATION AGAINST "INDIGENTS" BY NAME WOULD BE UNCONSTITUTIONAL. 
THUS, WHILE THE EXCLUSION OF "INDIGENTS" FROM A FREE STATE UNIVERSITY
WOULD DENY THEM EQUAL PROTECTION, REQUIRING THE PAYMENT OF TUITION FEES
SURELY WOULD NOT, DESPITE THE RESULTING EXCLUSION OF THOSE WHO COULD
NOT AFFORD TO PAY THE FEES.  AND IF IMPOSING A CONDITION OF PAYMENT IS
NOT THE EQUIVALENT OF A CLASSIFICATION BY THE STATE IN ONE CASE, I FAIL
TO SEE WHY IT SHOULD BE SO REGARDED IN ANOTHER.  THUS IF REQUIRING
DEFENDANTS IN FELONY CASES TO PAY FOR A TRANSCRIPT CONSTITUTES A
DISCRIMINATORY DENIAL TO INDIGENTS OF THE RIGHT OF APPEAL AVAILABLE TO
OTHERS, WHY IS IT NOT A SIMILAR DENIAL IN MISDEMEANOR CASES OR, FOR
THAT MATTER, CIVIL CASES? 

IT IS NO ANSWER TO SAY THAT EQUAL PROTECTION IS NOT AN ABSOLUTE, AND
THAT IN OTHER THAN CRIMINAL CASES THE DIFFERENTIATION IS "REASONABLE." 
THE RESULTING CLASSIFICATION WOULD BE INVIDIOUS IN ALL CASES, AND AN
INVIDIOUS CLASSIFICATION OFFENDS EQUAL PROTECTION REGARDLESS OF THE
SERIOUSNESS OF THE CONSEQUENCES.  HENCE IT MUST BE THAT THE DIFFERENCES
ARE "REASONABLE" IN OTHER CASES NOT BECAUSE THE "CLASSIFICATION" IS
REASONABLE BUT SIMPLY BECAUSE IT IS NOT UNREASONABLE IN THOSE CASES FOR
THE STATE TO FAIL TO RELIEVE INDIGENTS OF THE ECONOMIC BURDEN.  THAT
IS, THE ISSUE HERE IS NOT THE TYPICAL EQUAL PROTECTION QUESTION OF THE
REASONABLENESS OF A "CLASSIFICATION" ON THE BASIS OF WHICH THE STATE
HAS IMPOSED LEGAL DISABILITIES, BUT RATHER THE REASONABLENESS OF THE
STATE'S FAILURE TO REMOVE NATURAL DISABILITIES.  THE COURT HOLDS THAT
THE FAILURE OF THE STATE TO DO SO IS CONSTITUTIONALLY UNREASONABLE IN
THIS CASE ALTHOUGH IT MIGHT NOT BE IN OTHERS.  I SUBMIT THAT THE BASIS
FOR THAT HOLDING IS SIMPLY AN UNARTICULATED CONCLUSION THAT IT VIOLATES
"FUNDAMENTAL FAIRNESS" FOR A STATE WHICH PROVIDES FOR APPELLATE REVIEW,
AND THUS APPARENTLY CONSIDERS SUCH REVIEW NECESSARY TO ASSURE JUSTICE,
NOT TO SEE TO IT THAT SUCH APPEALS ARE IN FACT AVAILABLE TO THOSE IT
WOULD IMPRISON FOR SERIOUS CRIMES.  THAT OF COURSE IS THE TRADITIONAL
LANGUAGE OF DUE PROCESS, SEE BETTS V. BRADY, 316 U.S. 455, 462, AND I
SEE NO REASON TO IMPORT NEW SUBSTANCE INTO THE CONCEPT OF EQUAL
PROTECTION TO DISPOSE OF THE CASE, ESPECIALLY WHEN TO DO SO GIVES RISE
TO THE ALL-TOO-EASY OPPORTUNITY TO IGNORE THE REAL ISSUE AND SOLVE THE
PROBLEM SIMPLY BY LABELING THE ILLINOIS PRACTICE AS INVIDIOUS
"DISCRIMINATION." 

3.  DUE PROCESS.  - HAS THERE BEEN A VIOLATION OF THE DUE PROCESS
CLAUSE?  THE MAJORITY OF THE COURT CONCEDES THAT THE FOURTEENTH
AMENDMENT DOES NOT REQUIRE THE STATES TO PROVIDE FOR ANY KIND OF
APPELLATE REVIEW.  NEVERTHELESS, ILLINOIS, IN THE FOREFRONT AMONG THE
STATES, ESTABLISHED WRITS OF ERROR IN CRIMINAL CASES AS EARLY AS 1827. 
(FN5)  IN 1887, IT PROVIDED FOR OFFICIAL COURT REPORTERS, THEREBY
RELIEVING DEFENDANTS OF THE BURDEN OF HIRING REPORTERS IN ORDER TO
OBTAIN A TRANSCRIPT.  (FN6)  IN 1927, IT PROVIDED THAT FOR INDIGENTS
SENTENCED TO DEATH "ALL NECESSARY COSTS AND EXPENSES" INCIDENT TO A
WRIT OF ERROR, INCLUDING THE COST OF A TRANSCRIPT, WOULD BE PAID BY THE
COUNTIES.  (FN7)  AND IN 1953, FREE TRANSCRIPTS WERE AUTHORIZED FOR THE
PRESENTATION OF CONSTITUTIONAL CLAIMS.  (FN8)  THUS ILLINOIS HAS
STEADILY EXPANDED THE PROTECTION AFFORDED DEFENDANTS IN CRIMINAL CASES,
AND IN RECENT YEARS HAS MADE SUBSTANTIAL STRIDES TOWARDS ALLEVIATING
THE NATURAL DISADVANTAGES OF INDIGENTS.  CAN IT BE THAT, WHILE IT WAS
NOT UNCONSTITUTIONAL FOR ILLINOIS TO AFFORD NO APPEALS, ITS STEADY
PROGRESS IN INCREASING THE SAFEGUARDS AGAINST ERRONEOUS CONVICTIONS HAS
RESULTED IN A CONSTITUTIONAL DECLINE? 

OF COURSE THE FACT THAT APPEALS ARE NOT CONSTITUTIONALLY REQUIRED
DOES NOT MEAN THAT A STATE IS FREE OF CONSTITUTIONAL RESTRAINTS IN
ESTABLISHING THE TERMS UPON WHICH APPEALS WILL BE ALLOWED.  IT DOES
MEAN, HOWEVER, THAT THERE IS NO "RIGHT" TO AN APPEAL IN THE SAME SENSE
THAT THERE IS A RIGHT TO A TRIAL.  (FN9)  RATHER THE CONSTITUTIONAL
RIGHT UNDER THE DUE PROCESS CLAUSE IS SIMPLY THE RIGHT NOT TO BE DENIED
AN APPEAL FOR ARBITRARY OR CAPRICIOUS REASONS.  NOTHING OF THAT KIND,
HOWEVER, CAN BE FOUND IN ANY OF THE STEPS BY WHICH ILLINOIS HAS
ESTABLISHED ITS APPELLATE SYSTEM. 

WE ARE ALL AGREED THAT NO OBJECTION OF SUBSTANCE CAN BE MADE TO THE
PROVISIONS FOR FREE TRANSCRIPTS IN CAPITAL AND CONSTITUTIONAL CASES. 
THE DUE PROCESS CHALLENGE MUST THEREFORE BE DIRECTED TO THE BASIC STEP
OF PERMITTING APPEALS AT ALL WITHOUT ALSO PROVIDING AN IN FORMA
PAUPERIS PROCEDURE.  BUT WHATEVER ELSE MAY BE SAID OF ILLINOIS'
RELUCTANCE TO EXPEND PUBLIC FUNDS IN PERFECTING APPEALS FOR INDIGENTS,
IT CAN HARDLY BE SAID TO BE ARBITRARY.  A POLICY OF ECONOMY MAY BE
UNENLIGHTENED, BUT IT IS CERTAINLY NOT CAPRICIOUS.  AND THAT IT HAS
NEVER GENERALLY BEEN SO REGARDED IS EVIDENCED BY THE FACT THAT OUR
ATTENTION HAS BEEN CALLED TO NO STATE IN WHICH IN FORMA PAUPERIS
APPEALS WERE ESTABLISHED CONTEMPORANEOUSLY WITH THE RIGHT OF APPEAL.  I
CAN FIND NOTHING IN THE PAST DECISIONS OF THIS COURT JUSTIFYING A
HOLDING THAT THE FOURTEENTH AMENDMENT CONFINES THE STATES TO A CHOICE
BETWEEN ALLOWING NO APPEALS AT ALL OR UNDERTAKING TO BEAR THE COST OF
APPEALS FOR INDIGENTS, WHICH IS WHAT THE COURT IN EFFECT NOW HOLDS. 

IT IS ARGUED FINALLY THAT, EVEN IF IT CANNOT BE SAID TO BE
"ARBITRARY," THE FAILURE OF ILLINOIS TO PROVIDE PETITIONERS WITH THE
MEANS OF EXERCISING THE RIGHT OF APPEAL THAT OTHERS ARE ABLE TO
EXERCISE IS SIMPLY SO "UNFAIR" AS TO BE A DENIAL OF DUE PROCESS.  I
HAVE SOME QUESTION WHETHER THE NON-ARBITRARY DENIAL OF A RIGHT THAT THE
STATE MAY WITHHOLD ALTOGETHER COULD EVER BE SO CHARACTERIZED.  IN ANY
EVENT, HOWEVER, TO SO HOLD IT IS NOT ENOUGH THAT WE CONSIDER FREE
TRANSCRIPTS FOR INDIGENTS TO BE A DESIRABLE POLICY OR THAT WE WOULD
WEIGH THE COMPETING SOCIAL VALUES IN FAVOR OF SUCH A POLICY WERE IT OUR
FUNCTION TO DISTRIBUTE ILLINOIS' PUBLIC FUNDS AMONG ALTERNATIVE USES. 
RATHER THE QUESTION IS WHETHER SOME METHOD OF ASSURING THAT AN INDIGENT
IS ABLE TO EXERCISE HIS RIGHT OF APPEAL IS "IMPLICIT IN THE CONCEPT OF
ORDERED LIBERTY," PALKO V. CONNECTICUT, 302 U.S. 319, 325, SO THAT THE
FAILURE OF A STATE SO TO PROVIDE CONSTITUTES A "DENIAL OF FUNDAMENTAL
FAIRNESS, SHOCKING TO THE UNIVERSAL SENSE OF JUSTICE," BETTS V. BRADY,
SUPRA, AT 462.  SUCH AN EQUIVALENCE BETWEEN PERSONS IN THE MEANS WITH
WHICH TO EXERCISE A RIGHT OF APPEAL HAS NOT, HOWEVER, TRADITIONALLY
BEEN REGARDED AS AN ESSENTIAL OF "FUNDAMENTAL FAIRNESS," AND THE
REFORMS EXTENDING SUCH AID TO INDIGENTS HAVE ONLY RECENTLY GAINED
WIDESPREAD ACCEPTANCE.  INDEED, IT WAS NOT UNTIL AN ACT OF CONGRESS IN
1944 THAT DEFENDANTS IN FEDERAL CRIMINAL CASES BECAME ENTITLED TO FREE
TRANSCRIPTS, (FN10) AND TO DATE APPROXIMATELY ONE-THIRD OF THE STATES
STILL HAVE NOT TAKEN THAT STEP.  WITH DUE REGARD FOR THE CONSTITUTIONAL
LIMITATIONS UPON THE POWER OF THIS COURT TO INTERVENE IN STATE MATTERS,
I AM UNABLE TO BRING MYSELF TO SAY THAT ILLINOIS' FAILURE TO FURNISH
FREE TRANSCRIPTS TO INDIGENTS IN ALL CRIMINAL CASES IS "SHOCKING TO THE
UNIVERSAL SENSE OF JUSTICE." 

AS I VIEW THIS CASE, IT CONTAINS NONE OF THE ELEMENTS HITHERTO
REGARDED AS ESSENTIAL TO JUSTIFY ACTION BY THIS COURT UNDER THE
FOURTEENTH AMENDMENT.  IN TRUTH WHAT WE HAVE HERE IS BUT THE FAILURE OF
ILLINOIS TO ADOPT AS PROMPTLY AS OTHER STATES A DESIRABLE REFORM IN ITS
CRIMINAL PROCEDURE.  WHATEVER MIGHT BE SAID WERE THIS A QUESTION OF
PROCEDURE IN THE FEDERAL COURTS, REGARD FOR OUR SYSTEM OF FEDERALISM
REQUIRES THAT MATTERS SUCH AS THIS BE LEFT TO THE STATES.  HOWEVER
STRONG MAY BE ONE'S INCLINATION TO HASTEN THE DAY WHEN IN FORMA
PAUPERIS CRIMINAL PROCEDURES WILL BE UNIVERSAL AMONG THE STATES, I
THINK IT IS BEYOND THE PROVINCE OF THIS COURT TO TELL ILLINOIS THAT IT
MUST PROVIDE SUCH PROCEDURES. 

FN1  THE ILLINOIS SUPREME COURT MAY HAVE INTERPRETED THE PLEADINGS IN
THIS MANNER.  IT DESCRIBED THE PETITIONERS'"SOLE CONTENTION" AS BEING
THAT THEY WERE "UNABLE TO PURCHASE A BILL OF EXCEPTIONS AND WERE,
THEREFORE, UNABLE TO OBTAIN A COMPLETE REVIEW BY THIS COURT."  THIS
SUGGESTS THAT THE STATE COURT CONSTRUED THE CLAIM TO BE THAT AN APPEAL
WAS NECESSARILY PRECLUDED BY THE LACK OF A TRANSCRIPT, NOT THAT THE
PETITIONERS' PARTICULAR CIRCUMSTANCES PRODUCED THAT RESULT.  IF THAT IS
WHAT THE ILLINOIS COURT MEANT, ITS CONSTRUCTION, HAVING A REASONABLE
BASIS, WOULD BE BINDING ON THIS COURT AND WOULD CONSTITUTE AN ADEQUATE
STATE GROUND FOR THE DENIAL OF ANY CLAIM PREMISED ON THE EXISTENCE OF
PARTICULAR CIRCUMSTANCES PREVENTING THE PETITIONERS FROM PURSUING OTHER
AVAILABLE METHODS OF REVIEW. 

FN2  E.G., PEOPLE V. JOHNS, 388 ILL. 212, 57 N.E.2D 895; PEOPLE V.
LOFTUS, 400 ILL.  432, 81 N.E.2D 495; PEOPLE V. O'CONNELL, 411 ILL.
591, 104 N.E.2D 825. 

FN3  WEATHERFORD V. WILSON, 3 ILL. (2 SCAM.)  253 (1840); PEOPLE EX
REL. MAHER V. WILLIAMS, 91 ILL. 87 (1878); PEOPLE EX REL. MUNSON V.
GARY, 105 ILL. 264 (1883); PEOPLE EX REL.  HALL V. HOLDOM, 193 ILL.
319, 61 N.E. 1014 (1901); 162 EAST OHIO STREET HOTEL CORP. V.
LINDHEIMER, 368 ILL. 294, 13 N.E.2D 970 (1938); WEBER V. SNEERINGER,
247 ILL. APP. 294 (1928); MERKLE V. KEGERREIS, 350 ILL. APP. 103, 112
N.E.2D 175 (1953); SEE ALSO PEOPLE EX REL. NORTH AMERICAN RESTAURANT V.
CHETLAIN, 219 ILL. 248, 76 N.E. 364 (1906); MAYVILLE V. FRENCH, 246
ILL. 434, 92 N.E. 919 (1910); PEOPLE EX REL. SIMUS V. DONOGHUE, 377
ILL.  122, 35 N.E.2D 371 (1941).  THIS LINE OF CASES WAS REAFFIRMED BY
THE ILLINOIS SUPREME COURT IN 1953, JUST THREE MONTHS BEFORE THE
PETITIONERS WERE CONVICTED, IN PEOPLE V. JOYCE, 1 ILL. 2D 225, 230, 115
N.E.2D 262, 264-265, IN WHICH THE WILLIAMS, GARY, HOLDOM AND LINDHEIMER
CASES, SUPRA, WERE CITED WITH APPROVAL FOR THE PROPOSITION THAT TRIAL
ERRORS MAY BE PRESENTED ON A WRIT OF ERROR BY A "CONSTRUCTED OR
'BYSTANDER'S' BILL OF EXCEPTIONS."  THE HOLDING OF THAT CASE WAS THAT A
DEFENDANT TO WHOM THESE ALTERNATIVE METHODS WERE NOT AVAILABLE "AS A
PRACTICAL MATTER" BECAUSE OF HIS INDIGENCE AND INCARCERATION DID NOT,
BY FAILING TO SEEK DIRECT REVIEW OF HIS CONVICTION, "WAIVE" THE RIGHT
GIVEN HIM BY THE ILLINOIS POST-CONVICTION HEARING ACT TO ASSERT HIS
CONSTITUTIONAL CLAIMS IN A COLLATERAL PROCEEDING.  ACCORD:  PEOPLE V.
LA FRANA, 4 ILL. 2D 261, 266, 122 N.E.2D 583, 585-586.  THAT HOLDING
DOES NOT, OF COURSE, DETRACT FROM THE COURT'S AFFIRMATION THAT A
TRANSCRIPT IS NOT LEGALLY REQUIRED FOR APPELLATE REVIEW OF TRIAL
ERRORS.  IT IS EQUALLY CLEAR THAT ILLINOIS' RECOGNITION OF
"PRACTICALITIES" IN NOT APPLYING A STRICT DOCTRINE OF WAIVER TO THE
REMEDIAL POST-CONVICTION HEARING ACT DOES NOT NECESSARILY MEAN THAT THE
ALTERNATIVE METHODS OF OBTAINING REVIEW ARE NOT SUFFICIENTLY
"AVAILABLE" TO SATISFY ANY SUPPOSED CONSTITUTIONAL REQUIREMENTS.  THAT
QUESTION WOULD DEPEND UPON THE FACTS OF THE PARTICULAR CASE - OF WHICH
WE HAVE NOT BEEN INFORMED HERE - AND UPON THE EVALUATION OF THEM FOR
CONSTITUTIONAL PURPOSES. 

FN4  OF THESE 19 AT LEAST 5 HAVE, HOWEVER, EXPRESSLY GIVEN THE TRIAL
COURTS DISCRETIONARY POWER TO ORDER FREE TRANSCRIPTS IN NON-CAPITAL
CASES.  MASS. ANN. LAWS, C. 278, SEC. 33A, AS AMENDED BY ACTS 1955, C.
352 ("BY ORDER OF THE COURT"); N.D. REV. CODE, 1943, SEC.  27-0606
(WHEN "THERE IS REASONABLE CAUSE THEREFOR"); ORE.  REV.  STAT., 1953,
SEC. 21.470 (IF "JUSTICE WILL BE THEREBY PROMOTED"); S.D. CODE, 1939,
SEC. 34.3903 (IF "ESSENTIAL TO THE PROTECTION OF THE SUBSTANTIAL RIGHTS
OF THE DEFENDANT"); WASH. REV. CODE, 1951, SEC. 2.32.240 (IF "JUSTICE
WILL THEREBY BE PROMOTED").  THE RHODE ISLAND SUPREME COURT HAS REACHED
A SIMILAR RESULT BY INTERPRETATION OF A STATUTE AUTHORIZING
REIMBURSEMENT FOR EXPENDITURES OF APPOINTED COUNSEL.  STATE V. HUDSON,
55 R.I. 141, 179 A. 130 (1935) ("SOUND DISCRETION  ...  TO BE EXERCISED
WITH GREAT CIRCUMSPECTION AND ONLY FOR SERIOUS CAUSE").  IN ADDITION,
PETITIONERS' BRIEF REFERS TO A LETTER FROM THE CHIEF JUSTICE OF THE
CONNECTICUT SUPREME COURT OF ERRORS WHICH STATES THAT FREE TRANSCRIPTS
MAY BE FURNISHED IN THE DISCRETION OF THE COURT IN NON-CAPITAL CASES. 

FN5  ILL. REV. L. 1827, CRIM. CODE, SECS. 186, 187; ILL. REV. STAT.,
1955, C. 38, SEC. 769.1. 

FN6  ILL. LAWS 1887, P. 159; ILL. REV. STAT., 1955, C. 37, SEC.
163B. 

FN7  ILL. LAWS 1927, P. 400, SEC. 1 1/2; ILL. REV. STAT., 1955, C.
38, SEC. 769A. 

FN8  ILL. LAWS 1953, P. 859; ILL. REV. STAT., 1955, C. 37, SEC.
163F. 

FN9 THIS DIFFERENCE MAKES OF DUBIOUS VALIDITY ANY ANALOGY BETWEEN A
CONDITION IMPOSED UPON THE RIGHT TO DEFEND ONESELF AND A CONDITION
IMPOSED UPON THE RIGHT TO APPEAL. 

FN10  58 STAT. 5, 28 U.S.C. SECS. 753(F), 1915(A).  ON THE PRIOR
FEDERAL PRACTICE, SEE, E.G., ESTABROOK V. KING, 119 F.2D 607, 610 (C.A.
8TH CIR.); UNITED STATES V. FAIR, 235 F. 1015 (D.C.N.D. CALIF.). 
..END :




FROZEN FOOD EXPRESS V. UNITED STATES 351 U.S. 40 


NO. 158.  ARGUED MARCH 7, 1956.  - DECIDED APRIL 23, 1956.  - 128 F.
SUPP. 374, REVERSED. 


AFTER AN INVESTIGATION AND HEARING INSTITUTED ON ITS OWN MOTION, THE
INTERSTATE COMMERCE COMMISSION ISSUED AN ORDER LISTING A LARGE NUMBER
OF SPECIFIED COMMODITIES WHICH IT FOUND NOT TO BE "AGRICULTURAL" WITHIN
THE MEANING OF SEC. 203(B)(6) OF THE INTERSTATE COMMERCE ACT, WHICH
EXEMPTS FROM THE REQUIREMENT OF A PERMIT OR A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY MOTOR VEHICLES USED ONLY IN CARRYING
"AGRICULTURAL" COMMODITIES.  A MOTOR CARRIER TRANSPORTING WITHOUT A
CERTIFICATE OR PERMIT NUMEROUS COMMODITIES FOUND BY THE COMMISSION NOT
TO BE "AGRICULTURAL" COMMODITIES, AND WHICH HAD NOT BEEN A PARTY TO THE
ADMINISTRATIVE PROCEEDING, SUED IN A FEDERAL DISTRICT COURT TO ENJOIN
AND SET ASIDE THE COMMISSION'S ORDER.  HELD:  THE COMMISSION'S ORDER IS
SUBJECT TO JUDICIAL REVIEW, AND THE DISTRICT COURT SHOULD ADJUDICATE
THE MERITS.  UNITED STATES V. LOS ANGELES R. CO., 273 U.S. 299,
DISTINGUISHED.  PP. 41-45. 

FROZEN FOOD EXPRESS V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS.* 

*TOGETHER WITH NO. 159, INTERSTATE COMMERCE COMMISSION V. FROZEN FOOD
EXPRESS ET AL.; NO. 160, AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.
V. FROZEN FOOD EXPRESS ET AL.; AND NO. 161, AKRON, CANTON & YOUNGSTOWN
R. CO. ET AL. V. FROZEN FOOD EXPRESS ET AL., ALSO ON APPEAL FROM THE
SAME COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PART II OF THE INTERSTATE COMMERCE ACT, 49 STAT. 543, AS AMENDED, 49
U.S.C. SEC. 301 ET SEQ., GRANTS THE COMMISSION PERVASIVE CONTROL OVER
MOTOR CARRIERS.  COMMON CARRIERS AND CONTRACT CARRIERS BY MOTOR
VEHICLE, SUBJECT TO THAT PART OF THE ACT, MUST HAVE A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY OR A PERMIT ISSUED BY THE COMMISSION. 
SECS. 206(A), 209(A).  THE COMMISSION HAS POWERS OF INVESTIGATION TO
DETERMINE IF A MOTOR CARRIER HAS COMPLIED WITH THE ACT; AND IT HAS
AUTHORITY TO ISSUE AN ORDER COMPELLING COMPLIANCE.  SEC. 204(C).  THESE
REQUIREMENTS FOR A CERTIFICATE OR PERMIT* ARE NOT, HOWEVER, APPLICABLE
TO "MOTOR VEHICLES USED IN CARRYING PROPERTY CONSISTING OF ORDINARY
LIVESTOCK, FISH (INCLUDING SHELL FISH), OR AGRICULTURAL (INCLUDING
HORTICULTURAL) COMMODITIES (NOT INCLUDING MANUFACTURED PRODUCTS
THEREOF), IF SUCH MOTOR VEHICLES ARE NOT USED IN CARRYING ANY OTHER
PROPERTY, OR PASSENGERS, FOR COMPENSATION."  SEC. 203(B)(6). 

*EXEMPTED CARRIERS ARE ALSO NOT SUBJECT TO THE PROVISIONS CONCERNING
RATES AND CHARGES, SECS. 217, 218, NOR TO THE REQUIREMENTS CONCERNING
BODILY INJURY AND PROPERTY DAMAGE INSURANCE.  SEC. 215. 

THE CONTROVERSY IN THESE CASES CENTERS AROUND THIS "AGRICULTURAL"
EXEMPTION.  AFTER AN INVESTIGATION INSTITUTED ON ITS OWN MOTION, THE
COMMISSION ISSUED AN ORDER THAT SPECIFIED COMMODITIES ARE NOT
"AGRICULTURAL" WITHIN THE MEANING OF SEC. 203(B)(6). 

THE HEARING TO DETERMINE THE MEANING AND APPLICATION OF THE TERM
"AGRICULTURAL  ...  COMMODITIES (NOT INCLUDING MANUFACTURED PRODUCTS
THEREOF)" AS USED IN SEC. 203(B)(6) WAS HELD BEFORE AN EXAMINER.  IT
WAS A PUBLIC HEARING AT WHICH VARIOUS GOVERNMENTAL OFFICIALS AND
AGENCIES AND VARIOUS PRODUCERS, SHIPPERS, AND CARRIERS APPEARED AND
PRESENTED EVIDENCE.  THE COMMISSION'S DECISION WAS IN THE FORM OF A
REPORT AND ORDER.  52 M.C.C.  511.  THE REPORT, WHICH CONCERNS VARIOUS
GROUPS OF COMMODITIES, COVERS 71 PAGES OF THE PRINTED RECORD.  THE
FINDINGS LIST THOSE COMMODITIES THAT THE COMMISSION FINDS ARE EXEMPTED
UNDER SEC. 203(B)(6) AND THOSE THAT ARE NOT.  THE ORDER OF THE
COMMISSION INCORPORATES THE "FINDINGS" AND STATES THAT THE PROCEEDING
"BE, AND IT IS HEREBY DISCONTINUED." 

FROZEN FOOD EXPRESS, THE PLAINTIFF, IS A MOTOR CARRIER TRANSPORTING
NUMEROUS COMMODITIES WHICH THE COMMISSION RULED WERE NONEXEMPT UNDER
SEC. 203(B)(6) BUT WHICH THE CARRIER CLAIMS ARE "AGRICULTURAL
COMMODITIES."  PLAINTIFF, WHO WAS NOT A PARTY TO THE ADMINISTRATIVE
PROCEEDING, INSTITUTED SUIT BEFORE A THREE-JUDGE DISTRICT COURT (28
U.S.C. SEC. 2325) TO ENJOIN THE ORDER OF THE COMMISSION AND HAVE IT SET
ASIDE, NAMING THE UNITED STATES AND THE COMMISSION AS DEFENDANTS.  28
U.S.C. SEC. 1336; 49 STAT. 550, AS AMENDED, 49 U.S.C. SEC. 305(G); 60
STAT. 243, 5 U.S.C. SEC. 1009.  THE COMPLAINT ALLEGED THAT PLAINTIFF IS
A COMMON CARRIER BY MOTOR VEHICLE, HOLDING A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY WHICH AUTHORIZES IT TO TRANSPORT CERTAIN
COMMODITIES BETWEEN DESIGNATED POINTS AND PLACES; THAT PLAINTIFF IS
TRANSPORTING, IN ADDITION TO THOSE COMMODITIES, COMMODITIES WHICH ARE
EXEMPT UNDER SEC. 203(B)(6) AND FOR WHICH PLAINTIFF HAS SOUGHT NO
AUTHORITY FROM THE COMMISSION; THAT THE COMMISSION IN ITS ORDER HAS
HELD THE LATTER COMMODITIES NONEXEMPT AND ACCORDINGLY HAS DEPRIVED IT
OF THE RIGHT GRANTED BY THE STATUTE; THAT THE ORDER OF THE COMMISSION
CLASSIFYING CERTAIN COMMODITIES AS NONEXEMPT IS UNLAWFUL; AND THAT THE
COMMISSION THREATENS TO ENJOIN TRANSPORTATION OF THE COMMODITIES WHICH
PLAINTIFF CLAIMS ARE EXEMPT.  THE SECRETARY OF AGRICULTURE INTERVENED,
SUPPORTING PLAINTIFF'S POSITION ON SOME OF THE COMMODITIES.  OTHER
INTERVENERS ARE TRUCKING ASSOCIATIONS AND RAILROADS WHICH SUPPORT THE
COMMISSION.  THE UNITED STATES AS A DEFENDANT SUPPORTS THE COMMISSION
ON SOME OF ITS FINDINGS AND OPPOSES IT ON OTHERS. 

THE DISTRICT COURT, BEING OF THE VIEW THAT THE CASE WAS CONTROLLED BY
UNITED STATES V. LOS ANGELES R. CO., 273 U.S. 299, DISMISSED THE
ACTION, SAYING THAT THE "ORDER" OF THE COMMISSION WAS NOT SUBJECT TO
JUDICIAL REVIEW.  128 F. SUPP. 374.  THE CASES ARE HERE BY APPEAL.  28
U.S.C. SECS. 1253, 2101(B). 

WE DISAGREE WITH THE DISTRICT COURT.  WE DO NOT THINK UNITED STATES
V. LOS ANGELES R. CO., SUPRA, IS CONTROLLING HERE.  IN THAT CASE THE
"ORDER" HELD NONREVIEWABLE WAS A VALUATION OF A CARRIER'S PROPERTY MADE
BY THE COMMISSION.  THE COURT HELD THAT THE "ORDER" WAS NO MORE THAN A
REPORT OF AN INVESTIGATION WHICH MIGHT NEVER BE THE BASIS OF A
PROCEEDING BEFORE THE COMMISSION OR A COURT.  MR. JUSTICE BRANDEIS,
SPEAKING FOR THE COURT, SAID: 

"THE SO-CALLED ORDER HERE COMPLAINED OF IS ONE WHICH DOES NOT COMMAND
THE CARRIER TO DO, OR TO REFRAIN FROM DOING, ANY THING; WHICH DOES NOT
GRANT OR WITHHOLD ANY AUTHORITY, PRIVILEGE OR LICENSE; WHICH DOES NOT
EXTEND OR ABRIDGE ANY POWER OR FACILITY; WHICH DOES NOT SUBJECT THE
CARRIER TO ANY LIABILITY, CIVIL OR CRIMINAL; WHICH DOES NOT CHANGE THE
CARRIER'S EXISTING OR FUTURE STATUS OR CONDITION; WHICH DOES NOT
DETERMINE ANY RIGHT OR OBLIGATION.  THIS SO-CALLED ORDER IS MERELY THE
FORMAL RECORD OF CONCLUSIONS REACHED AFTER A STUDY OF DATA COLLECTED IN
THE COURSE OF EXTENSIVE RESEARCH CONDUCTED BY THE COMMISSION, THROUGH
ITS EMPLOYEES.  IT IS THE EXERCISE SOLELY OF THE FUNCTION OF
INVESTIGATION  ...  ."  273 U.S. 309-310. 

THE SITUATION HERE IS QUITE DIFFERENT.  THE DETERMINATION BY THE
COMMISSION THAT A COMMODITY IS NOT AN EXEMPT AGRICULTURAL PRODUCT HAS
AN IMMEDIATE AND PRACTICAL IMPACT ON CARRIERS WHO ARE TRANSPORTING THE
COMMODITIES, AND ON SHIPPERS AS WELL.  THE "ORDER" OF THE COMMISSION
WARNS EVERY CARRIER, WHO DOES NOT HAVE AUTHORITY FROM THE COMMISSION TO
TRANSPORT THOSE COMMODITIES, THAT IT DOES SO AT THE RISK OF INCURRING
CRIMINAL PENALTIES.  SEC. 222(A).  WHERE UNAUTHORIZED OPERATIONS OCCUR,
THE COMMISSION MAY PROCEED ADMINISTRATIVELY AND ISSUE A CEASE AND
DESIST ORDER.  SEC. 204(C).   SUCH ORDERS OF THE COMMISSION ARE
ENFORCEABLE BY THE COURTS.  SEC. 222(B).  AND WILFUL VIOLATION OF A
CEASE AND DESIST ORDER IS GROUND FOR REVOCATION OF A CERTIFICATE OR
PERMIT.  SEC. 212.  THE DETERMINATION MADE BY THE COMMISSION IS NOT
THEREFORE ABSTRACT, THEORETICAL, OR ACADEMIC.  CF. EL DORADO OIL WORKS
V. UNITED STATES, 328 U.S. 12, 18-19.  THE "ORDER" OF THE COMMISSION
WHICH CLASSIFIES COMMODITIES AS EXEMPT OR NONEXEMPT IS, INDEED, THE
BASIS FOR CARRIERS IN ORDERING AND ARRANGING THEIR AFFAIRS.  CF.
ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, 132.  CARRIERS WHO
ARE WITHOUT THE APPROPRIATE CERTIFICATE OR PERMIT, BECAUSE THEY BELIEVE
THEY CARRY EXEMPT COMMODITIES, RUN CIVIL AND CRIMINAL RISKS.  A CARRIER
AUTHORIZED TO CARRY SPECIFIED COMMODITIES AND DEPENDENT ON EXEMPT
ARTICLES FOR ITS RETURN LOAD MAY LOSE ITS RIGHT TO OPERATE AT ALL, IF
IT DOES NOT RESPECT THE COMMISSION'S "ORDER."  CARRIERS AND SHIPPERS
ALIKE ARE TOLD THAT THEY ARE OR ARE NOT FREE TO BARGAIN FOR RATES, THAT
THEY MUST OR MUST NOT PAY THE FILED CHARGES.  THE "ORDER" OF THE
COMMISSION IS IN SUBSTANCE A "DECLARATORY" ONE, SEE 60 STAT. 240, 5
U.S.C. SEC. 1004(D), WHICH TOUCHES VITAL INTERESTS OF CARRIERS AND
SHIPPERS ALIKE AND SETS THE STANDARD FOR SHAPING THE MANNER IN WHICH AN
IMPORTANT SEGMENT OF THE TRUCKING BUSINESS WILL BE DONE.  CF.  COLUMBIA
BROADCASTING SYSTEM V. UNITED STATES, 316 U.S. 407.  THE CONSEQUENCES
WE HAVE SUMMARIZED ARE NOT CONJECTURAL.  THE COMMISSION ITSELF PLACES
THIS INTERPRETATION ON ITS ACTION AND ARGUES, CONTRARY TO ITS POSITION
IN THE LOS ANGELES CASE, SUPRA, FOR FINALITY OF THE ORDER.  WE CONCLUDE
THAT THE ISSUES RAISED IN THE COMPLAINT ARE JUSTICIABLE AND THAT THE
DISTRICT COURT SHOULD ADJUDICATE THE MERITS.  REVERSED. 

MR. JUSTICE HARLAN, DISSENTING. 

I DO NOT AGREE THAT THE DISTRICT COURT HAD JURISDICTION TO ENTERTAIN
THIS ACTION TO SET ASIDE THE COMMISSION'S "ORDER."  IT SEEMS TO ME THAT
THE CASE FALLS SQUARELY WITHIN THOSE CAREFULLY DEVELOPED RULES WHICH
REQUIRE THAT JUDICIAL INTERVENTION BE WITHHELD UNTIL ADMINISTRATIVE
ACTION HAS REACHED ITS COMPLETE DEVELOPMENT.  I FIND NOTHING IN THE
NATURE OF THE ORDER WHICH COMMENDS IT TO REVIEWABILITY AT THIS STAGE
OTHER THAN THE FACT THAT ITS PROMULGATION WAS PRECEDED BY A LENGTHY
INVESTIGATION AND THAT IT CONTAINS A SERIES OF "FINDINGS" AND
"CONCLUSIONS."  THESE FACTORS SHOULD NOT BE PERMITTED TO OBSCURE THE
TRUE CHARACTER OF THE ORDER. 

AFTER A SELF-INITIATED INVESTIGATION, IN WHICH VARIOUS CARRIERS
PARTICIPATED, THE COMMISSION ENTERED THIS ORDER DISCONTINUING THE
PROCEEDINGS AND INCORPORATING THE "FINDINGS OF FACT AND CONCLUSIONS" OF
THE COMMISSION.  THAT THE ORDER WAS NOT INTENDED TO BE A "LEGISLATIVE"
REGULATION SEEMS APPARENT, SINCE IT WAS NOT PUT IN THE FORM ORDINARILY
USED BY THE COMMISSION IN PROMULGATING REGULATIONS.  THE ORDER SIMPLY
LISTS THE COMMODITIES CONSIDERED BY THE COMMISSION AND DETERMINES
WHETHER THEY ARE WITHIN THE SEC. 203(B)(6) EXEMPTION; IT NOWHERE
COMMANDS THAT CARRIERS HAULING COMMODITIES CONSIDERED NON-EXEMPT COMPLY
EITHER WITH THE ORDER OR WITH THE GENERAL REQUIREMENTS OF THE
INTERSTATE COMMERCE ACT.  IT IS CLEAR, THEREFORE, THAT NO
ADMINISTRATIVE OR CRIMINAL PROCEEDING CAN BE BROUGHT FOR VIOLATION OF
THE ORDER ITSELF.  AND IT IS EQUALLY CLEAR THAT THE PROCEEDING DID NOT
CONCLUDE ANY RIGHTS AS BETWEEN ANY SPECIFIC CARRIERS AND THE
COMMISSION. 

THE INTERSTATE COMMERCE ACT DOES, OF COURSE, PROVIDE FOR
ADMINISTRATIVE AND CRIMINAL SANCTIONS TO ENFORCE COMPLIANCE WITH ITS
PROVISIONS.  AN UNCERTIFICATED CARRIER HAULING COMMODITIES NON-EXEMPT
UNDER SEC. 203(B)(6) RUNS THE RISK OF A CRIMINAL PROSECUTION UNDER SEC.
222(A) OF THE ACT.  BUT THE ORDER HAS NO OPERATIVE EFFECT IN SUCH A
PROCEEDING - IT DOES NOT EXTEND THE CARRIER'S CRIMINAL LIABILITY, WHICH
EXISTS BECAUSE OF A VIOLATION OF THE ACT AND NOT THE ORDER.  AND IF THE
ENFORCEMENT TAKES THE FORM OF A CEASE AND DESIST PROCEEDING AGAINST A
PARTICULAR CARRIER, AGAIN THE ONLY QUESTION WOULD BE WHETHER THE ACT,
RATHER THAN THE ORDER, WAS BEING VIOLATED.  IF SUCH AN ADMINISTRATIVE
PROCEEDING IS INSTITUTED, AND A CEASE AND DESIST ORDER IS ISSUED, THE
CARRIER SUBJECT TO THAT ORDER WOULD BE ENTITLED TO CONTEST THE
STATUTORY AUTHORITY OF THE COMMISSION IN JUDICIAL PROCEEDINGS OF
PRECISELY THE SCOPE BROUGHT HERE. 

NOR CAN THIS ORDER BE LIKENED TO A DETERMINATION OF STATUS, HELD
REVIEWABLE IN ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S.
125.  AS I UNDERSTAND THAT CASE, THE TOUCHSTONE OF THE DECISION WAS
THAT THE DETERMINATION "NECESSARILY AND IMMEDIATELY CARRIED DIRECTION
OF OBEDIENCE TO PREVIOUSLY FORMULATED MANDATORY ORDERS ADDRESSED
GENERALLY TO ALL CARRIERS AMENABLE TO THE COMMISSION'S AUTHORITY."  307
U.S., AT P. 144.  THE SPECIFIC DETERMINATION THAT A PARTICULAR CARRIER
MUST COMPLY WITH COMMISSION REGULATIONS IS QUITE DIFFERENT FROM THIS
ORDER, WHICH IS DIRECTED TO NO ONE IN PARTICULAR AND IS BINDING ON NO
ONE, NOT EVEN THE COMMISSION.  NEITHER CAN THIS ORDER BE ANALOGIZED TO
A DECLARATORY ORDER DIRECTED TO THE STATUS OF A PARTICULAR CARRIER,
WHICH MIGHT BE REVIEWABLE AS CARRYING WITH IT A DIRECT THREAT OF
PROSECUTION - SEE ROCHESTER TELEPHONE CORP. V. UNITED STATES, SUPRA, AT
P. 132, N. 11.  INDEED, THE COMMISSION ITSELF DOES NOT CONSIDER ITS
DETERMINATIONS THE FINAL ANSWER TO THE MEANING OF THE SEC. 203(B)(6)
EXEMPTION, EVEN FOR ADMINISTRATIVE PURPOSES.  THIS IS EVIDENT FROM THE
PROCEEDINGS IN EAST TEXAS MOTOR FREIGHT LINES V. FROZEN FOOD EXPRESS,
POST, P. 49, WHERE IN A CEASE AND DESIST PROCEEDING THE COMMISSION
HEARD NEW EVIDENCE ON WHETHER THE PARTICULAR COMMODITIES THERE INVOLVED
WERE WITHIN THE EXEMPTION, AND WAS EVIDENTLY READY TO RECONSIDER THE
DETERMINATIONS EMBODIED IN THE ORDER INVOLVED HERE. 

TO BE SURE, THE ORDER DOES SERVE AS A WARNING TO CARRIERS THAT THE
COMMISSION INTERPRETS THE ACT IN A PARTICULAR WAY, AND IT IS TRUE THAT
COURTS WILL GIVE THE COMMISSION'S VIEWS SOME INDETERMINATE WEIGHT IN
CONSTRUING THE STATUTE.  BUT THAT VERY FACT, INSTEAD OF JUSTIFYING A
HOLDING OF REVIEWABILITY, SEEMS TO ME A STRONG ARGUMENT AGAINST IT.
THE COMMISSION'S WILLINGNESS, IN INDIVIDUAL CASES, TO RECONSIDER ITS
DETERMINATIONS WITH RESPECT TO PARTICULAR COMMODITIES POINTS UP THE
TENTATIVE NATURE OF THE CONCLUSIONS HERE SOUGHT TO BE REVIEWED.  WHEN
THIS ACTION IS HEARD ON THE MERITS, THE DISTRICT COURT WILL HAVE AS AN
AID IN CONSTRUING THE STATUTE ADMINISTRATIVE INTERPRETATIONS WHICH ARE
ADMITTEDLY INCONCLUSIVE, AND IF THEY ARE TO BE GIVEN ANY WEIGHT IT
WOULD SEEM IMPORTANT THAT THIS COURT NOT DO ANYTHING TO FREEZE THEM IN
THEIR PRESENT IMMATURE STATE.  FOR ALL WE KNOW, THE COMMISSION'S
DECISION NOT TO ISSUE THIS ORDER IN THE FORM OF REGULATIONS MAY HAVE
BEEN BECAUSE IT RECOGNIZED THE NEED FOR FURTHER STUDY.    YEARS OF
EXPERIENCE HAVE SHOWN THAT SEC. 203(B)(6) PRESENTS DIFFICULT PROBLEMS
OF INTERPRETATION, AND THIS COURT SHOULD BE WARY OF ESTABLISHING A
PROCEDURE WHICH WOULD PREMATURELY THROW INTO THE COURTS QUESTIONS OF
STATUTORY CONSTRUCTION NOT ARISING IN THE CONTEXT OF CONCRETE FACTS,
AND WHICH DOES NOT BRING TO THE COURTS EVEN THE BENEFIT OF FINAL
INTERPRETATION BY THE AGENCY ASSIGNED TO ADMINISTER THE STATUTE.  THAT
THIS SHOULD BE DONE IN A CASE WHERE THERE IS A RIGHT OF DIRECT APPEAL
TO THIS COURT MAKES THE WISDOM OF TODAY'S DECISION EVEN MORE
QUESTIONABLE. 

LASTLY, THE ORDER DOES NOT HAVE THE IMMEDIATE IMPACT OF THE SORT
WHICH, AT TIMES, HAS LED THIS COURT TO REGARD PARTICULAR ADMINISTRATIVE
ACTION AS RIPE FOR JUDICIAL REVIEW.  IN COLUMBIA BROADCASTING SYSTEM V.
UNITED STATES, 316 U.S. 407, THE VERY EXISTENCE OF THE REGULATIONS HAD,
WITHOUT ANYTHING MORE, AN IMMEDIATE EFFECT ON THE BUSINESS OF THE PARTY
ATTACKING THEM.  THERE IS MUCH TO BE SAID FOR FINDING ADMINISTRATIVE
ACTION REVIEWABLE WHEN IT ENTAILS IMMEDIATE PRACTICAL CONSEQUENCES FOR
THOSE AFFECTED BY IT.  CF. JOINT ANTI-FASCIST REFUGEE COMMITTEE V.
MCGRATH, 341 U.S. 123.  BUT THE CARRIERS SUBJECT TO THE INTERSTATE
COMMERCE ACT ARE IN NO WAY WORSE OFF NOW THAN THEY WERE BEFORE THIS
ORDER ISSUED; THERE IS NO GREATER LIABILITY OR RISK UNDER THE STATUTE
OCCASIONED BY THE ORDER, WHICH HAS NO MORE EFFECT THAN WOULD ANY OTHER
INFORMAL EXPRESSION OF VIEWS BY THE COMMISSION.  IF ANYTHING, CARRIERS
ARE IN A BETTER POSITION, SINCE THEY CAN NOW MAKE A MORE REASONED
JUDGMENT AS TO THE APPLICABILITY OF THE STATUTE TO PARTICULAR
COMMODITIES, AND THIS MAY HAVE BEEN THE PRINCIPAL REASON FOR THE
COMMISSION MAKING PUBLIC ITS FINDINGS. 

IN MY VIEW, THEN, THE LANGUAGE QUOTED BY THE MAJORITY FROM UNITED
STATES V. LOS ANGELES R. CO. APTLY DESCRIBES THIS ORDER OF THE
COMMISSION, AND I CONSIDER THAT WISE DECISION CONTROLLING HERE. 
NEITHER THE CHARACTER NOR THE MEANING OF THIS ORDER CAN BE CHANGED BY
THE FACT THAT THE COMMISSION, IN ASKING US TO HOLD IT REVIEWABLE, CALLS
IT A "FORMAL DETERMINATION" OF THE SCOPE OF SEC. 203(B)(6).  THE
SIGNIFICANT FACT IS THAT, AS SHOWN BY EAST TEXAS MOTOR FREIGHT LINES V.
FROZEN FOOD EXPRESS, POST, P. 49, THE COMMISSION ITSELF DOES NOT
CONSIDER ITS ORDER DEFINITIVE.  TODAY'S DECISION OPENS THE DOOR WIDE TO
PREMATURE JUDICIAL REVIEW OF VARIOUS KINDS OF ADMINISTRATIVE ACTION,
AND I MUST WITHHOLD MY ASSENT FROM IT.  I WOULD AFFIRM THE DECISION
BELOW. 
..END :
















EAST TEXAS MOTOR FREIGHT LINES, INC. V. FROZEN FOOD EXPRESS 351 U.S. 49 



NO. 162.  ARGUED MARCH 7, 1956.  - DECIDED APRIL 23, 1956.  - 128 F.
SUPP. 374, AFFIRMED. 


ON COMPLAINT OF THREE MOTOR COMMON CARRIERS UNDER SEC. 204(C) OF THE
INTERSTATE COMMERCE ACT, THE COMMISSION ORDERED FROZEN FOOD EXPRESS,
ANOTHER MOTOR COMMON CARRIER, TO CEASE AND DESIST FROM TRANSPORTING IN
INTERSTATE COMMERCE WITHOUT A CERTIFICATE OF CONVENIENCE AND NECESSITY
FRESH AND FROZEN DRESSED POULTRY, WHICH IT FOUND NOT TO BE WITHIN THE
EXEMPTION UNDER SEC. 203(B)(6) OF THE ACT OF "AGRICULTURAL  ...
COMMODITIES (NOT INCLUDING MANUFACTURED PRODUCTS THEREOF)."  FROZEN
FOOD EXPRESS SUED IN A FEDERAL DISTRICT COURT TO SET ASIDE THE ORDER. 
HELD:  FRESH AND FROZEN DRESSED POULTRY IS AN "AGRICULTURAL" COMMODITY
WITHIN THE MEANING OF SEC. 203(B)(6), AND NOT A "MANUFACTURED" PRODUCT
THEREOF, AND THE DISTRICT COURT PROPERLY SET ASIDE THE COMMISSION'S
ORDER.  PP. 50-54. 

EAST TEXAS MOTOR FREIGHT LINES, INC., ET AL. V. FROZEN FOOD EXPRESS ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS.* 

*TOGETHER WITH NO. 163, INTERSTATE COMMERCE COMMISSION V. FROZEN FOOD
EXPRESS ET AL., AND NO. 164, AKRON, CANTON & YOUNGSTOWN R. CO. ET AL.
V. FROZEN FOOD EXPRESS ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THREE MOTOR COMMON CARRIERS FILED A COMPLAINT WITH THE INTERSTATE
COMMERCE COMMISSION UNDER SEC. 204(C) OF PART II OF THE INTERSTATE
COMMERCE ACT, 49 STAT. 547, AS AMENDED, 49 U.S.C. SEC. 304(C), ALLEGING
THAT FROZEN FOOD EXPRESS, A COMMON CARRIER BY MOTOR VEHICLE, WAS AND
HAD BEEN TRANSPORTING FRESH AND FROZEN MEATS AND FRESH AND FROZEN
DRESSED POULTRY IN INTERSTATE COMMERCE WITHOUT A CERTIFICATE OF
CONVENIENCE AND NECESSITY FROM THE COMMISSION WHICH COVERS THOSE
COMMODITIES.  THE COMPLAINT PRAYED FOR A CEASE AND DESIST ORDER. 
FROZEN FOOD EXPRESS ADMITTED THAT IT WAS AND HAD BEEN SO TRANSPORTING
THE NAMED COMMODITIES BUT ASSERTED IN DEFENSE THAT THOSE OPERATIONS
WERE WITHIN THE EXEMPTION OF SEC. 203(B)(6).  (FN1) 

THE COMMISSION FOUND THAT FROZEN FOOD EXPRESS HAD BEEN PERFORMING
UNAUTHORIZED OPERATIONS AND THAT FRESH AND FROZEN MEATS AND FRESH AND
FROZEN DRESSED POULTRY WERE NOT WITHIN THE EXEMPTION OF SEC.
203(B)(6).  62 M.C.C. 646.  ACCORDINGLY IT ORDERED FROZEN FOOD EXPRESS
TO CEASE AND DESIST FROM ENGAGING IN THESE OPERATIONS.  FROZEN FOOD
EXPRESS BROUGHT SUIT BEFORE A THREE-JUDGE DISTRICT COURT (28 U.S.C.
SEC. 2325) TO SET THE COMMISSION'S ORDER ASIDE, 28 U.S.C. SEC. 1336; 49
STAT. 550, AS AMENDED, 49 U.S.C. SEC. 305(G); 60 STAT. 243, 5 U.S.C.
SEC. 1009.  THE ANSWER OF THE UNITED STATES AND THE COMPLAINT IN
INTERVENTION FILED BY THE SECRETARY OF AGRICULTURE SUPPORTED THE
POSITION OF FROZEN FOOD EXPRESS.  THE ORIGINAL COMPLAINANTS BEFORE THE
COMMISSION AND OTHER INTERESTED CARRIERS AND CARRIER ASSOCIATIONS
INTERVENED IN SUPPORT OF THE COMMISSION.  THE DISTRICT COURT SUSTAINED
THE COMMISSION'S CONCLUSION THAT FRESH AND FROZEN MEATS ARE NONEXEMPT
COMMODITIES.  NO APPEAL WAS TAKEN FROM THAT HOLDING.  THE DISTRICT
COURT HELD THAT FRESH AND FROZEN DRESSED POULTRY ARE EXEMPT COMMODITIES
UNDER SEC. 203(B)(6) AND RESTRAINED THE COMMISSION FROM ENFORCING ITS
CEASE AND DESIST ORDER AS RESPECTS THOSE PRODUCTS.  128 F. SUPP. 374. 
THE CASES ARE HERE BY APPEAL.  28 U.S.C. SECS. 1253, 2101(B). 

WE AGREE WITH THE DISTRICT COURT THAT THE COMMISSION'S RULING DOES
NOT SQUARE WITH THE STATUTE.  THE EXEMPTION OF MOTOR VEHICLES CARRYING
"AGRICULTURAL (INCLUDING HORTICULTURAL) COMMODITIES (NOT INCLUDING
MANUFACTURED PRODUCTS THEREOF)" WAS DESIGNED TO PRESERVE FOR THE
FARMERS THE ADVANTAGE OF LOW-COST MOTOR TRANSPORTATION.  SEE ESPECIALLY
79 CONG.  REC. 12217.  THE VICTORY IN THE CONGRESS FOR THE EXEMPTION
WAS RECOGNITION THAT THE PRICE WHICH THE FARMER OBTAINS FOR HIS
PRODUCTS IS GREATLY AFFECTED BY THE COST OF TRANSPORTING THEM TO THE
CONSUMING MARKET IN THEIR RAW STATE OR AFTER THEY HAVE BECOME
MARKETABLE BY INCIDENTAL PROCESSING. 

THE HISTORY OF THE WORDS "AGRICULTURAL  ...  COMMODITIES (NOT
INCLUDING MANUFACTURED PRODUCTS THEREOF)" CONTAINED IN SEC. 203(B)(6)
SUPPORTS THAT CONCLUSION.  THE BILL AS IT CAME TO THE FLOOR OF THE
HOUSE FROM THE INTERSTATE AND FOREIGN COMMERCE COMMITTEE (79 CONG. REC.
12204) EXEMPTED "MOTOR VEHICLES USED EXCLUSIVELY IN CARRYING LIVESTOCK
OR UNPROCESSED AGRICULTURAL PRODUCTS."  ID., 12220.  MR. PETTENGILL FOR
THE COMMITTEE OFFERED AN AMENDMENT WHICH SUBSTITUTED FOR THE WORDS
"UNPROCESSED AGRICULTURAL PRODUCTS" THE PHRASE "AGRICULTURAL
COMMODITIES NOT INCLUDING MANUFACTURED PRODUCTS THEREOF."  THAT
AMENDMENT WAS AGREED TO AFTER THE FOLLOWING COLLOQUY: 

"MR. PETTENGILL.  MR. CHAIRMAN, WE HAVE HEARD A GOOD DEAL OF
DISCUSSION THIS AFTERNOON AS TO WHAT IS A PROCESSED AGRICULTURAL
PRODUCT, WHETHER THAT WOULD INCLUDE PASTEURIZED MILK OR GINNED COTTON. 
IT WAS NOT THE INTENT OF THE COMMITTEE THAT IT SHOULD INCLUDE THOSE
PRODUCTS.  THEREFORE, TO MEET THE VIEWS OF MANY MEMBERS WE THOUGHT WE
WOULD STRIKE OUT THE WORD 'UNPROCESSED' AND MAKE IT APPLY ONLY TO
MANUFACTURED PRODUCTS. 

     * *         *         *         * 

"MR. WHITTINGTON.  IN OTHER WORDS, UNDER THE AMENDMENT TO THE
COMMITTEE AMENDMENT, COTTON IN BALES AND COTTONSEED TRANSPORTED FROM
THE GINNERIES TO THE MARKET OR TO A PUBLIC WAREHOUSE WOULD BE EXEMPT,
WHEREAS THEY MIGHT NOT BE EXEMPT IF THE LANGUAGE REMAINED, BECAUSE
GINNING IS SOMETIMES SYNONYMOUS WITH PROCESSING. 

"MR. PETTENGILL.  THAT IS CORRECT." 

IT IS PLAIN FROM THIS CHANGE THAT THE EXEMPTION OF "AGRICULTURAL
COMMODITIES" WAS CONSIDERABLY BROADENED BY MAKING CLEAR THAT THE
EXEMPTION WAS LOST NOT BY INCIDENTAL OR PRELIMINARY PROCESSING BUT BY
MANUFACTURING.  (FN2)  KILLING, DRESSING, AND FREEZING A CHICKEN IS
CERTAINLY A CHANGE IN THE COMMODITY.  BUT IT IS NO MORE DRASTIC A
CHANGE THAN THE CHANGE WHICH TAKES PLACE IN MILK FROM PASTEURIZING,
HOMOGENIZING, ADDING VITAMIN CONCENTRATES, STANDARDIZING, AND
BOTTLING.  YET THE COMMISSION AGREES THAT MILK SO PROCESSED IS NOT A
"MANUFACTURED" PRODUCT, BUT FALLS WITHIN THE MEANING OF THE
"AGRICULTURAL" EXEMPTION.  52 M.C.C. 511, 551.  THE COMMISSION ALSO
AGREES THAT GINNED COTTON AND COTTONSEED ARE EXEMPT.  ID., 523-524. 
BUT THERE IS HARDLY LESS DIFFERENCE BETWEEN COTTON IN THE FIELD AND
COTTON AT THE GIN OR IN THE BALE OR BETWEEN COTTONSEED IN THE FIELD AND
COTTONSEED AT THE GIN, THAN BETWEEN A CHICKEN IN THE PEN AND ONE THAT
IS DRESSED.  THE GINNED AND BALED COTTON AND THE COTTONSEED, AS WELL AS
THE DRESSED CHICKEN, HAVE GONE THROUGH A PROCESSING STAGE.  BUT NEITHER
HAS BEEN "MANUFACTURED" IN THE NORMAL SENSE OF THE WORD.  THE COURT IN
ANHEUSER-BUSCH ASSN. V. UNITED STATES, 207 U.S. 556, 562, IN A CASE
ARISING UNDER THE TARIFF LAWS, SAID: 

"  ...  MANUFACTURE IMPLIES A CHANGE, BUT EVERY CHANGE IS NOT
MANUFACTURE, AND YET EVERY CHANGE IN AN ARTICLE IS THE RESULT OF
TREATMENT, LABOR AND MANIPULATION.  BUT SOMETHING MORE IS NECESSARY, AS
SET FORTH AND ILLUSTRATED IN HARTRANFT V. WIEGMANN, 121 U.S. 609. 
THERE MUST BE TRANSFORMATION; A NEW AND DIFFERENT ARTICLE MUST EMERGE,
'HAVING A DISTINCTIVE NAME, CHARACTER OR USE.'" 

IN THAT CASE IMPORTED CORKS WERE MADE READY FOR USE IN BEER BOTTLES
BY STAMPING, BY REMOVAL OF DUST, MEAL, BUGS, AND WORMS, BY WASHING AND
STEAMING TO REMOVE TANNIN AND TO INCREASE ELASTICITY, AND BY DRYING. 
PLAINLY, THE CORKS WERE PROCESSED.  BUT THE COURT HELD THEY HAD NOT
BEEN MANUFACTURED WITHIN THE DRAWBACK PROVISION OF THE TARIFF LAWS. 
AND SEE HARTRANFT V. WIEGMANN, 121 U.S. 609, 615; UNITED STATES V.
DUDLEY, 174 U.S. 670. 

A CHICKEN THAT HAS BEEN KILLED AND DRESSED IS STILL A CHICKEN. 
REMOVAL OF ITS FEATHERS AND ENTRAILS HAS MADE IT READY FOR MARKET.  BUT
WE CANNOT CONCLUDE THAT THIS PROCESSING WHICH MERELY MAKES THE CHICKEN
MARKETABLE TURNS IT INTO A "MANUFACTURED" COMMODITY.  (FN3) 

AT SOME POINT PROCESSING AND MANUFACTURING WILL MERGE.  BUT WHERE THE
COMMODITY RETAINS A CONTINUING SUBSTANTIAL IDENTITY THROUGH THE
PROCESSING STAGE WE CANNOT SAY THAT IT HAS BEEN "MANUFACTURED" WITHIN
THE MEANING OF SEC. 203(B)(6). 

THE COMMISSION IS THE EXPERT IN THE FIELD OF TRANSPORTATION.  AND ITS
JUDGMENT IS ENTITLED TO GREAT DEFERENCE BECAUSE OF ITS FAMILIARITY WITH
THE CONDITIONS IN THE INDUSTRY WHICH IT REGULATES.  AMERICAN TRUCKING
ASSNS.  V. UNITED STATES, 344 U.S. 298, 310.  BUT CONGRESS HAS PLACED
LIMITS ON ITS STATUTORY POWERS; AND OUR DUTY ON JUDICIAL REVIEW IS TO
DETERMINE THOSE LIMITS.  SEE SOCIAL SECURITY BOARD V. NIEROTKO, 327
U.S. 358.  THOSE LIMITS WOULD BE PASSED HERE IF THE COMMISSION WERE
PERMITTED TO EXPAND "MANUFACTURED" TO INCLUDE SUCH INCIDENTAL
PROCESSING AS IS INVOLVED IN DRESSING AND FREEZING A CHICKEN. 
AFFIRMED. 

FN1  SEC. 203(B)(6) PROVIDES: 

"NOTHING IN THIS PART, EXCEPT THE PROVISIONS OF SECTION 204 RELATIVE
TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND SAFETY
OF OPERATION OR STANDARDS OF EQUIPMENT SHALL BE CONSTRUED TO INCLUDE
...  MOTOR VEHICLES USED IN CARRYING PROPERTY CONSISTING OF ORDINARY
LIVESTOCK, FISH (INCLUDING SHELL FISH), OR AGRICULTURAL (INCLUDING
HORTICULTURAL) COMMODITIES (NOT INCLUDING MANUFACTURED PRODUCTS
THEREOF), IF SUCH MOTOR VEHICLES ARE NOT USED IN CARRYING ANY OTHER
PROPERTY, OR PASSENGERS, FOR COMPENSATION  ...  ." 

FN2  TWO MORE CHANGES WERE MADE IN THE AGRICULTURAL EXEMPTION CLAUSE
BEFORE THE BILL REACHED FINAL FORM.  THE WORDS "FISH, INCLUDING
SHELLFISH," WERE ADDED AFTER THE WORD "LIVESTOCK" (79 CONG. REC.
12220), AND THE EXEMPTION WAS STRENGTHENED BY MAKING IT "ABSOLUTE
RATHER THAN DISCRETIONARY" WITH THE INTERSTATE COMMERCE COMMISSION. 
ID., AT 12225-12226. 

AS ORIGINALLY ENACTED IN 1935, SEC. 203(B)(6) EXEMPTED MOTOR VEHICLES
"USED EXCLUSIVELY" IN CARRYING AGRICULTURAL COMMODITIES.  IN 1938 THE
WORD "EXCLUSIVELY" WAS DELETED AND THE FOLLOWING LANGUAGE WAS ADDED AT
THE END OF THE CLAUSE:  "IF SUCH MOTOR VEHICLES ARE NOT USED IN
CARRYING ANY OTHER PROPERTY, OR PASSENGERS, FOR COMPENSATION."  52
STAT.  1237.  IN 1940 THE WORD "ORDINARY" WAS INSERTED BEFORE THE WORD
"LIVESTOCK," MAKING THE EXEMPTION APPLICABLE TO "ORDINARY LIVESTOCK." 
54 STAT. 921.  FINALLY, IN 1952, THE WORDS "AGRICULTURAL COMMODITIES"
WERE BROADENED TO "AGRICULTURAL (INCLUDING HORTICULTURAL)
COMMODITIES."  66 STAT. 479. 

FN3  THE FACT THAT MOST POULTRY IS SOLD ALIVE AND IS NOT KILLED AND
PROCESSED BY THE GROWER IS NOT CONTROLLING.  FOR SEC. 203(B)(6) EXEMPTS
CARRIERS TRANSPORTING "AGRICULTURAL COMMODITIES" UNLESS THOSE PRODUCTS
ARE "MANUFACTURED."  THE EXEMPTION IS CONCERNED WITH THE STAGE OF THE
PROCESSING, NOT WITH THE PERSON WHO DOES IT. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE MINTON
AND MR. JUSTICE HARLAN JOIN, DISSENTING. 

FOR THE REASONS GIVEN BY THE INTERSTATE COMMERCE COMMISSION, 52
M.C.C. 511, 62 M.C.C.  646, AND ITS ADMINISTRATIVE PRACTICE OF OVER 15
YEARS, I WOULD SUSTAIN ITS INTERPRETATION OF THE ACT TO THE EFFECT THAT
FRESH AND FROZEN DRESSED POULTRY, LIKE FRESH AND FROZEN DRESSED MEATS,
ARE NOT ENTITLED TO EXEMPTION AS AGRICULTURAL COMMODITIES.  NO APPEAL
HAS BEEN TAKEN FROM THAT PART OF THE JUDGMENT WHICH HELD VALID THE
COMMISSION'S DETERMINATION THAT FRESH AND FROZEN DRESSED MEATS ARE
PRODUCTS MANUFACTURED FROM AGRICULTURAL COMMODITIES.  THE COMMISSION'S
LIKE TREATMENT OF POULTRY IS NOT ARBITRARY OR UNREASONABLE.  ON THE
CONTRARY, THERE WAS MUCH EVIDENCE BEFORE THE COMMISSION WHICH CLEARLY
SUPPORTED ITS DECISION.  CONSEQUENTLY, WE SHOULD ACCORD THAT DECISION
THE WEIGHT ORDINARILY GIVEN TO INFORMED ADMINISTRATIVE ACTION.  WE
CANNOT SAY THAT THE ORDER OF THE COMMISSION, WHICH HELD THAT THERE IS
NO SIGNIFICANT DISTINCTION BETWEEN THE TWO, IS NOT AN ALLOWABLE
JUDGMENT. 

"SUCH DETERMINATIONS OF FACT BY THE SHIPPING BOARD OR INTERSTATE
COMMERCE COMMISSION AS A BASIS FOR ADMINISTRATIVE ORDERS WILL NOT BE
SET ASIDE BY COURTS IF THERE IS EVIDENCE TO SUPPORT THEM.  EVEN THOUGH,
UPON A CONSIDERATION OF ALL THE EVIDENCE, A COURT MIGHT REACH A
DIFFERENT CONCLUSION, IT IS NOT AUTHORIZED TO SUBSTITUTE ITS OWN FOR
THE ADMINISTRATIVE JUDGMENT."  SWAYNE & HOLT, LTD. V. UNITED STATES,
300 U.S. 297, 304.  SEE ALSO, FEDERAL COMMUNICATIONS COMMISSION V.
WOKO, INC., 329 U.S. 223, 229; UNITED STATES V. PIERCE AUTO FREIGHT
LINES, INC., 327 U.S. 515, 535-536; BARRETT LINE, INC. V. UNITED
STATES, 326 U.S. 179, 199. 
..END :




DIXIE CARRIERS, INC., V. UNITED STATES 351 U.S. 56 


NO. 233.  ARGUED MARCH 27, 1956.  - DECIDED APRIL 23, 1956.  - 129 F.
SUPP. 28, REVERSED. 


ON SHIPMENTS OF SULPHUR FROM MINES NEAR GALVESTON, TEX., TO DANVILLE,
ILL., THE RAILROADS HAVE ESTABLISHED A JOINT ALL-RAIL RATE WHICH IS
LOWER THAN BOTH THE COMBINATION ALL-RAIL RATE AND THE COMBINATION RAIL
BARGE RATE; BUT THEY HAVE REFUSED TO ESTABLISH A JOINT RAIL-BARGE RATE
BETWEEN THE SAME POINTS.  HELD: SUCH REFUSAL CONSTITUTES A
DISCRIMINATION IN RATES BETWEEN CONNECTING LINES PROHIBITED BY SEC.
3(4) OF THE INTERSTATE COMMERCE ACT, AND IT IS THE DUTY OF THE
COMMISSION UNDER SEC. 307(D) TO ESTABLISH THROUGH ROUTES AND JOINT
RATES FOR RAIL-BARGE TRANSPORTATION, IN ORDER TO EFFECTUATE THE
NATIONAL TRANSPORTATION POLICY THAT THE ACT BE ADMINISTERED TO PRESERVE
THE "INHERENT ADVANTAGES" OF EACH FORM OF TRANSPORTATION.  PP. 56-61. 

DIXIE CARRIERS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS. 

MR. JUSTICE DOUGLAS DEVIVERED THE OPINION OF THE COURT. 

SULPHUR MINED NEAR GALVESTON, TEXAS, CAN BE SHIPPED TO DANVILLE,
ILLINOIS, EITHER BY RAIL OR BY BARGE AND RAIL.  IF THE SULPHUR GOES BY
BARGE AND RAIL, IT IS TRANSPORTED UP THE MISSISSIPPI VIA NEW ORLEANS TO
EAST ST. LOUIS AND THEN BY RAIL TO DANVILLE.  THE TOTAL CHARGE FOR THAT
MOVEMENT IS $9.77 PER TON.  (FN1)  THE TOTAL OF THE VARIOUS LOCAL RATES
FOR ALL-RAIL SHIPMENTS FROM THE MINES TO DANVILLE IS $11.68.  BUT THE
RAILROADS HAVE ESTABLISHED A JOINT ALL-RAIL RATE (FN2) OF $9.184 WHICH
IS LOWER THAN BOTH THE COMBINATION ALL-RAIL RATE AND THE COMBINATION
RAIL-BARGE RATE. 

APPELLANTS, WHO ARE WATER CARRIERS, REQUESTED THE COMPETING RAILROADS
TO ESTABLISH A JOINT RAIL-BARGE RATE OF $7.67 ON SULPHUR FROM GALVESTON
TO DANVILLE.  THE RAILROADS REFUSED.  APPELLANTS THEREUPON FILED A
COMPLAINT WITH THE INTERSTATE COMMERCE COMMISSION, ALLEGING THAT THE
EXISTING RAIL-BARGE RATES ON SULPHUR WERE EXCESSIVE AND UNREASONABLE,
THAT THROUGH RAIL-BARGE ROUTES AND JOINT RATES WITH REASONABLE
DIFFERENTIALS BELOW THE ALL-RAIL RATES SHOULD BE ESTABLISHED, AND THAT
THE REFUSAL OF THE RAILROADS TO ESTABLISH SUCH JOINT RATES
DISCRIMINATED AGAINST THE BARGES AS CONNECTING CARRIERS IN VIOLATION OF
THE INTERSTATE COMMERCE ACT, AS AMENDED BY THE TRANSPORTATION ACT OF
1940.  (FN3)  APPELLANTS REQUESTED THE COMMISSION TO ESTABLISH A
THROUGH RAIL-BARGE ROUTE AND A JOINT RATE AND SUGGESTED THAT THE JOINT
RATE BE FIXED AT $7.67.  APPELLANTS PROPOSED THAT THE DANVILLE
RAILROADS RECEIVE $2.26 AS A DIVISION OF THAT RATE, CALCULATED TO BE
THE SAME AS THEY RECEIVE FROM THE ALL-RAIL RATE FROM GALVESTON TO
DANVILLE.  UNDER THE PROPOSED RATE, THE COST OF RAIL-BARGE SHIPMENTS
FROM THE MINES TO DANVILLE WOULD BE $9.17 AS COMPARED WITH THE ALL-RAIL
RATE OF $9.184. 

A DIVISION OF THE COMMISSION DISMISSED THE COMPLAINT, ONE
COMMISSIONER DISSENTING.  287 I.C.C. 403.  THE COMMISSION AFFIRMED THE
DIVISION, THREE COMMISSIONERS DISSENTING.  291 I.C.C. 422.  A THREE
JUDGE DISTRICT COURT SUSTAINED THE COMMISSION.  129 F. SUPP.  28.  THE
CASE IS HERE ON APPEAL, 28 U.S.C. SECS. 1253, 2101(B), 2325. 

PROVISIONS OF THIS PART  ... SHALL NOT DISCRIMINATE IN THEIR RATES,
FARES, AND CHARGES BETWEEN CONNECTING LINES  ...  ."  SECTION 3(4)
DEFINES "CONNECTING LINE" AS INCLUDING "ANY COMMON CARRIER BY WATER
SUBJECT TO PART III."  APPELLANTS ARE COMMON CARRIERS BY WATER WITHIN
THAT DEFINITION.  THEY MAINTAIN THAT IT IS UNLAWFUL UNDER SEC. 3(4) OF
THE ACT FOR A RAILROAD TO REFUSE TO JOIN IN THROUGH ROUTES AND JOINT
RATES WITH A WATER CARRIER WHEN IT HAS ALREADY JOINED IN SUCH ROUTES
AND RATES WITH A CONNECTING RAIL LINE.  THEY FURTHER MAINTAIN THAT THE
POWER OF THE COMMISSION UNDER SEC. 307(D) (FN4) TO ESTABLISH THROUGH
ROUTES AND JOINT RATES SHOULD HAVE BEEN EXERCISED HERE. 

WE HAD A CLOSELY RELATED QUESTION BEFORE US IN INTERSTATE COMMERCE
COMMISSION V. MECHLING, 330 U.S. 567.  IN THAT CASE WE INVALIDATED AN
ORDER OF THE COMMISSION WHICH APPROVED HIGHER RAIL RATES FOR THE
TRANSPORTATION OF GRAIN EAST OF CHICAGO IF IT HAD ARRIVED IN CHICAGO BY
BARGE, RATHER THAN BY RAIL.  WE REVIEWED THE HISTORY OF THE
TRANSPORTATION ACT OF 1940 AND CONCLUDED THAT THAT ACT "UNEQUIVOCALLY
REQUIRED THE COMMISSION TO FIX RATES WHICH WOULD PRESERVE FOR SHIPPERS
THE INHERENT ADVANTAGES OF BARGE TRANSPORTATION:  LOWER COST OF
EQUIPMENT, OPERATION, AND THEREFORE SERVICE."  ID., AT 575.  WE HELD
THAT THE DISCRIMINATION WHICH WAS OUTLAWED APPLIED TO THROUGH RATES AS
WELL AS TO ORDINARY RATES. 

THE MECHLING CASE INVOLVED AN ATTEMPT TO DEPRIVE WATER TRANSPORTATION
OF ONE OF ITS "INHERENT ADVANTAGES," AS THAT PHRASE IS USED IN THE
PREAMBLE OF THE 1940 ACT, BY INCREASING THE COST OF BARGE SERVICE.  THE
COMMISSION'S PRESENT DECISION ACHIEVES THE SAME RESULT THROUGH THE
DEVICE OF A JOINT RATE ALLOWED CARRIERS BY RAIL BUT DENIED CARRIERS BY
WATER.  IT WAS RECOGNIZED IN THE DEBATES ON THE BILL THAT BECAME THE
TRANSPORTATION ACT OF 1940 THAT MANIPULATION OF RAIL RATES DOWNWARD
MIGHT DEPRIVE WATER CARRIERS OF THEIR "INHERENT ADVANTAGES" AND
THEREFORE VIOLATE THE ACT.  (FN5)  IT WAS EMPHASIZED THAT ONE OF THE
EVILS TO BE REMEDIED WAS CUTTHROAT COMPETITION, WHEREBY STRONG RAIL
CARRIERS WOULD REDUCE THEIR RATES, PUTTING WATER CARRIERS OUT OF
BUSINESS.  (FN6)  THERE WAS RECOGNITION THAT FOR SHIPPERS TO GET THE
BENEFIT OF THE "INHERENT ADVANTAGES" OF WATER TRANSPORTATION THERE
FREQUENTLY WOULD HAVE TO BE JOINT RAIL-BARGE RATES.  (FN7)  BARGE
TRANSPORTATION FREQUENTLY COVERS ONLY ONE SEGMENT OF THE JOURNEY TO
MARKET.  THE FAILURE OF THE RAILROADS TO ESTABLISH NON-DISCRIMINATORY
JOINT RATES WITH BARGES MIGHT, THEREFORE, SERIOUSLY IMPAIR THE
DEVELOPMENT OF BARGE SERVICE AS A VITAL COMPONENT OF OUR NATIONAL
TRANSPORTATION SYSTEM.  SECTION 3 OUTLAWS DISCRIMINATION IN ALL ITS
FORMS.  SEE NEW YORK V. UNITED STATES, 331 U.S. 284, 296.  WHERE THERE
IS DISCRIMINATION BY THE USE OF A JOINT RATE TO FAVOR RAIL CARRIERS
OVER CARRIERS BY WATER AND TO DEPRIVE THE LATTER OF THEIR "INHERENT
ADVANTAGES," THE COMMISSION HAS A DUTY TO END IT UNDER SEC. 307(D). 
THAT SUBSECTION (FN8) MAKES IT MANDATORY FOR THE COMMISSION TO
ESTABLISH THROUGH ROUTES AND JOINT RATES "WHENEVER DEEMED BY IT TO BE
NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST."  THE PUBLIC INTEREST,
AS DEFINED IN THE ACT, IS THE GUIDE TO THE COMMISSION'S ACTION.  MCLEAN
TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 82.  THE POLICY IS TO
PRESERVE ALL THE "INHERENT ADVANTAGES" OF THE WATER CARRIERS.  (FN9)
THAT MEANS THAT A JOINT BARGE-RAIL RATE MUST BE ESTABLISHED WHEN IT
APPEARS, AS HERE, THAT A JOINT RAIL RATE DISCRIMINATES AGAINST THE
WATER CARRIERS.  OTHERWISE A MANIPULATED RATE STRUCTURE WILL TAKE THE
BUSINESS FROM THE WATER CARRIERS.  IN ABSENCE OF THE JOINT ALL-RAIL
RATE, THE RAIL-BARGE COMBINATION RATE FOR SULPHUR WOULD BE $1.91 PER
TON LESS THAN THE ALL-RAIL COMBINATION RATE BETWEEN THE SAME POINTS. 
THAT DIFFERENTIAL REFLECTS THE LOWER COST OF THE BARGE SEGMENT OF THE
JOURNEY.  IT IS AT ONCE LOST TO SHIPPERS WHEN JOINT RATES ARE ALLOWED
RAIL CARRIERS AND WITHHELD FROM THE WATER CARRIERS.  TO HOLD OTHERWISE
WOULD BE TO SANCTION A RATE STRUCTURE WHICH, THROUGH THE USE OF
DISCRIMINATORY JOINT RATES, DENIES SHIPPERS THE "INHERENT ADVANTAGES"
OF WATER TRANSPORTATION.  REVERSED. 

FN1  THE CHARGE CONSISTS OF RAIL AND LOADING CHARGES OF $1.50 AT
GALVESTON, THE BARGE RATE OF $5.32 TO EAST ST. LOUIS, AND THE LOCAL
RAIL RATE OF $2.95 FROM EAST ST. LOUIS TO DANVILLE. 

FN2  FOR A DISCUSSION OF JOINT RATES SEE ST. LOUIS S.W.R. CO. V.
UNITED STATES, 245 U.S. 136, 139, NOTE 2; UNITED STATES V. GREAT
NORTHERN R. CO., 343 U.S. 562. 

FN3  24 STAT. 379, AS AMENDED, 54 STAT. 898, 49 U.S.C. SEC. 1. 

FN4  SECTION 307(D) PROVIDES: 

"THE COMMISSION MAY, AND IT SHALL WHENEVER DEEMED BY IT TO BE
NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST, AFTER FULL HEARING UPON
COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT A COMPLAINT, ESTABLISH
THROUGH ROUTES, JOINT CLASSIFICATIONS, AND JOINT RATES, FARES, OR
CHARGES, APPLICABLE TO THE TRANSPORTATION OF PASSENGERS OR PROPERTY BY
COMMON CARRIERS BY WATER, OR BY SUCH CARRIERS AND CARRIERS BY RAILROAD,
OR THE MAXIMA OR MINIMA, OR MAXIMA AND MINIMA, TO BE CHARGED, AND THE
DIVISIONS OF SUCH RATES, FARES, OR CHARGES AS HEREINAFTER PROVIDED, AND
THE TERMS AND CONDITIONS UNDER WHICH SUCH THROUGH ROUTES SHALL BE
OPERATED.  IN THE CASE OF A THROUGH ROUTE, WHERE ONE OF THE CARRIERS IS
A COMMON CARRIER BY WATER, THE COMMISSION SHALL PRESCRIBE SUCH
REASONABLE DIFFERENTIALS AS IT MAY FIND TO BE JUSTIFIED BETWEEN ALL
RAIL RATES AND THE JOINT RATES IN CONNECTION WITH SUCH COMMON CARRIER
BY WATER  ...  ." 

FN5  THERE WAS THE FOLLOWING COLLOQUY DURING THE DEBATE IN THE SENATE
BETWEEN SENATOR WHEELER WHO WAS IN CHARGE OF THE BILL AND SENATOR
NORRIS (84 CONG. REC. 5874): 

"MR. NORRIS.  SUPPOSE, HOWEVER, THIS BILL SHOULD BECOME A LAW, AND AN
ARTICLE OF FREIGHT WERE TO BE TRANSPORTED WHICH ADMITTEDLY COULD BE
CARRIED BY WATER BETTER THAN BY RAILROAD, AND SUPPOSE THE RAILROAD
SHOULD UNDERTAKE TO REDUCE ITS RATE DOWN TO THE WATER RATE: WOULD THERE
BE ANYTHING IN THE LAW TO PREVENT THE RAILROAD FROM DOING THAT? 

"MR. WHEELER.  OF COURSE THERE WOULD BE. 

"MR. NORRIS.  DISASTROUS RATES CAN BE BROUGHT ABOUT BY REDUCING THEM
JUST AS WELL AS BY INCREASING THEM, AS A MATTER OF FACT. 

"MR. WHEELER.  EXACTLY. 

"MR. NORRIS.  AND THE WATER CARRIER OUGHT TO BE PROTECTED ON THE
FREIGHT THAT OUGHT TO BE CARRIED BY WATER RATHER THAN ON THE RAILROAD. 

"MR. WHEELER.  IT WOULD BE ABSOLUTELY PROTECTED UNDER THIS MEASURE. 

"MR. NORRIS.  THAT IS WHAT I WANT TO SEE DONE. 

"MR. WHEELER.  THERE IS NOT ANY QUESTION ABOUT IT.  UNDER THE RATE
MAKING PROVISION AND UNDER THE OTHER PROVISIONS I HAVE READ, THERE IS
NOT ANY QUESTION ABOUT IT." 

FN6  ID., 5877. 

FN7  ID., 5875. 

FN8  NOTE 4, SUPRA. 

FN9  THE DIVISION OF THE COMMISSION THOUGHT THAT REGARD FOR THE
"INHERENT ADVANTAGES" OF WATER TRANSPORTATION DID NOT REQUIRE IT "TO
FORCE RAIL CARRIERS, WHERE THEY MAINTAIN A DEPRESSED RATE TO MEET WATER
COMPETITION, TO FURTHER DEPRESS THEIR EARNINGS ON THE TRAFFIC IN ORDER
TO FAVOR THAT SAME FORM OF COMPETITION."  287 I.C.C., AT 407.  BUT PART
OF THAT CRITICAL "DEPRESSED RATE" - AND THE ONE MOST RELEVANT HERE - IS
THE $2.26 OF THE JOINT ALL-RAIL RATE RECEIVED BY THE EAST ST. LOUIS
DANVILLE RAIL CARRIER.  FOR THIS SAME HAUL, THE EAST ST. LOUIS-DANVILLE
RAIL CARRIER RECEIVES $2.95 ON THE BARGE-RAIL RATE.  YET ON THAT HAUL
THE RAILROAD HAS NO COMPETITION FROM THE WATER CARRIERS. 
..END :









UNITED MINE WORKERS OF AMERICA V. ARKANSAS OAK FLOORING CO. 351 U.S. 62 



NO. 227.  ARGUED JANUARY 23, 1956.  - DECIDED APRIL 23, 1956.  - 227 LA.
1109, 81 SO. 2D 413, REVERSED AND REMANDED. 


IN THE CASE OF AN EMPLOYER SUBJECT TO THE NATIONAL LABOR RELATIONS
ACT, AS AMENDED, A STATE COURT MAY NOT ENJOIN PEACEFUL PICKETING OF THE
EMPLOYER'S PREMISES, UNDERTAKEN BY ITS EMPLOYEES AND THEIR UNION FOR
THE PURPOSE OF OBTAINING RECOGNITION OF THE UNION AS THE EMPLOYEES'
BARGAINING REPRESENTATIVE, WHEN THE UNION HOLDS CARDS AUTHORIZING SUCH
REPRESENTATION CONCEDEDLY SIGNED BY A MAJORITY OF THE EMPLOYEES
ELIGIBLE TO BE REPRESENTED - EVEN THOUGH THE UNION HAS NOT FILED WITH
THE SECRETARY OF LABOR ANY OF THE FINANCIAL OR ORGANIZATIONAL DATA
DESCRIBED IN SEC. 9(F) AND (G) OF THE ACT, NOR WITH THE NATIONAL LABOR
RELATIONS BOARD ANY OF THE NON-COMMUNIST AFFIDAVITS DESCRIBED IN SEC.
9(H) OF THE ACT.  PP. 63-76. 

(A)  BY ITS NONCOMPLIANCE WITH SEC. 9(F), (G) AND (H), A UNION MAKES
ITSELF INELIGIBLE FOR CERTAIN ADVANTAGES AND SERVICES OFFERED BY THE
ACT; BUT IT DOES NOT EXEMPT ITSELF FROM OTHER APPLICABLE PROVISIONS OF
THE ACT.  PP. 69-70. 

(B)  SECTION 8(A)(5) DECLARES IT TO BE AN UNFAIR LABOR PRACTICE FOR
AN EMPLOYER "TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES
OF HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF" SEC. 9(A); BUT THE
LATTER SECTION DOES NOT MAKE IT A CONDITION THAT THE REPRESENTATIVE
SHALL HAVE COMPLIED WITH SEC. 9(F), (G) OR (H), OR SHALL BE CERTIFIED
BY THE BOARD, OR EVEN BE ELIGIBLE FOR SUCH CERTIFICATION.  PP. 70-72. 

(C)  LIKEWISE, SEC. 7, WHICH DEALS WITH THE EMPLOYEES' RIGHTS TO SELF
ORGANIZATION AND REPRESENTATION, MAKES NO REFERENCE TO ANY NEED THAT
THE EMPLOYEES' CHOSEN REPRESENTATIVE MUST HAVE COMPLIED WITH SEC. 9(F),
(G) OR (H).  PP. 72-73. 

(D)  SUBSECTIONS (F), (G) AND (H) OF SEC. 9 MERELY DESCRIBE CERTAIN
ADVANTAGES THAT MAY BE GAINED BY COMPLIANCE WITH THEIR CONDITIONS, AND
THE EXPRESS PROVISION FOR THE LOSS OF THESE ADVANTAGES IMPLIES THAT NO
OTHER CONSEQUENCES SHALL RESULT FROM NONCOMPLIANCE.  P. 73. 

(E)  IN THIS CASE, NONCOMPLIANCE OF THE UNION WITH SEC. 9(F), (G) AND
(H) PRECLUDES ANY RIGHT OF THE UNION TO SEEK CERTIFICATION OF ITS
STATUS BY THE BOARD; BUT THE EMPLOYER, EMPLOYEES AND UNION ARE
CONTROLLED BY THE APPLICABLE PROVISIONS OF THE ACT, AND ALL COURTS,
STATE AND FEDERAL, ARE BOUND BY THEM.  PP. 73-74. 

(F)  UNDER SECS. 7 AND 9(A), AND BY VIRTUE OF THE CONCEDED MAJORITY
DESIGNATION OF THE UNION, THE EMPLOYER IS OBLIGATED TO RECOGNIZE THE
UNION, AND THE UNION CAN TAKE LAWFUL ACTION, SUCH AS STRIKING AND
PEACEFUL PICKETING, TO INDUCE THE EMPLOYER TO DO SO.  PP. 74-75. 

(G)  THAT BEING SO, THE STATE CANNOT ENJOIN THE PEACEFUL PICKETING
HERE PRACTICED.  P. 75. 

UNITED MINE WORKERS OF AMERICA ET AL. V. ARKANSAS OAK FLOORING CO. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER, IN THE CASE OF AN EMPLOYER SUBJECT
TO THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, A STATE COURT MAY
ENJOIN PEACEFUL PICKETING OF THE EMPLOYER'S PREMISES, UNDERTAKEN BY ITS
EMPLOYEES AND THEIR UNION FOR THE PURPOSE OF OBTAINING RECOGNITION OF
THAT UNION AS THE EMPLOYEES' BARGAINING REPRESENTATIVE, WHEN THE UNION
HOLDS CARDS AUTHORIZING SUCH REPRESENTATION CONCEDEDLY SIGNED BY A
MAJORITY OF THE EMPLOYEES ELIGIBLE TO BE REPRESENTED, BUT HAS FILED
NONE OF THE DATA OR AFFIDAVITS DESCRIBED IN SEC. 9(F), (G) AND (H) OF
THAT ACT, AS AMENDED.  (FN1)  FOR THE REASONS HEREAFTER STATED, OUR
ANSWER IS IN THE NEGATIVE. 

IN 1953, THE RESPONDENT, ARKANSAS OAK FLOORING COMPANY, A DELAWARE
CORPORATION WITH ITS MAIN OFFICE IN PINE BLUFF, ARKANSAS, OWNED AND
OPERATED A SAWMILL AND FLOORING PLANT IN ALEXANDRIA, LOUISIANA.  THE
COMPANY WAS THERE ENGAGED IN INTERSTATE COMMERCE AND SUBJECT TO THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED.  AT THE SAME TIME, DISTRICT
50, UNITED MINE WORKERS OF AMERICA, HERE CALLED THE "UNION," WAS AN
UNINCORPORATED LABOR ORGANIZATION WHICH UNDERTOOK TO ORGANIZE THE
COMPANY'S ELIGIBLE EMPLOYEES AT ITS ALEXANDRIA PLANT.  THE UNION,
HOWEVER, DID NOT FILE WITH THE SECRETARY OF LABOR ANY OF THE FINANCIAL
OR ORGANIZATIONAL DATA DESCRIBED IN SEC. 9(F) AND (G) OF THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED, NOR, WITH THE NATIONAL LABOR RELATIONS
BOARD, ANY OF THE NON-COMMUNIST AFFIDAVITS DESCRIBED IN SEC. 9(H) OF
THAT ACT.  IT CONTENDED THAT THE COMPANY, NEVERTHELESS, SHOULD
RECOGNIZE IT AS THE COLLECTIVE-BARGAINING REPRESENTATIVE OF THE
ALEXANDRIA PLANT EMPLOYEES BECAUSE IT WAS AUTHORIZED BY MORE THAN A
MAJORITY OF SUCH EMPLOYEES TO REPRESENT THEM. 

ALTHOUGH FOR FOUR YEARS THERE HAD BEEN NO LABOR ORGANIZATION
REPRESENTING THE PLANT EMPLOYEES, THIS UNION, BY FEBRUARY 24, 1954,
HELD APPLICATIONS FOR MEMBERSHIP FROM 174 OF THE 225 ELIGIBLE
EMPLOYEES.  SUCH APPLICANTS HAD ELECTED OFFICERS AND STEWARDS AND HAD
AUTHORIZED THE UNION ORGANIZER TO REQUEST THE COMPANY TO RECOGNIZE THE
UNION AS THEIR COLLECTIVE-BARGAINING REPRESENTATIVE.  ON FEBRUARY 24,
THE ORGANIZER, ACCORDINGLY, PRESENTED THAT REQUEST TO THE ASSISTANT
SUPERINTENDENT OF THE PLANT.  THE LATTER, IN THE ABSENCE OF ANY HIGHER
OFFICER OF THE COMPANY, REPLIED THAT THE UNION WAS NOT RECOGNIZED
EITHER BY THE NATIONAL LABOR RELATIONS BOARD OR BY HIM, AND THAT, IF
NEGOTIATIONS WERE DESIRED, THE UNION ORGANIZER SHOULD CALL THE
COMPANY'S OFFICE AT PINE BLUFF. 

ON MARCH 1, THE PETITIONING EMPLOYEES STRUCK FOR RECOGNITION OF THE
UNION AND SET UP A PEACEFUL PICKET LINE OF THREE EMPLOYEES.  TWO WERE
PLACED IN FRONT OF THE PLANT AND ONE AT THE SIDE.  THEY CARRIED SIGNS
STATING "THIS PLANT IS ON STRIKE" OR "WE WANT RECOGNITION, DISTRICT 50
UMWA." 

ON MARCH 2, RESPONDENT SOUGHT A RESTRAINING ORDER AND INJUNCTION IN
THE NINTH JUDICIAL DISTRICT FOR THE PARISH OF RAPIDES, LOUISIANA.  THAT
COURT PROMPTLY ISSUED AN ORDER RESTRAINING THE ABOVE-DESCRIBED
PICKETING BY 11 NAMED EMPLOYEES, THE UNION AND ITS ORGANIZER.  THE
ORDER WAS OBEYED BUT THE STRIKE CONTINUED.  ON MARCH 12 AND 15,
EVIDENCE WAS INTRODUCED, INCLUDING, BY THAT DATE, 179 APPLICATIONS FOR
MEMBERSHIP IN THE UNION, EACH OF WHICH AUTHORIZED THE UNION TO
REPRESENT THE SIGNER IN NEGOTIATIONS AND IN THE MAKING OF AGREEMENTS AS
TO WAGES, HOURS AND CONDITIONS OF WORK.  THE PARTIES TO THE PROCEEDING
STIPULATED THAT EACH OF THOSE APPLICATIONS WAS SIGNED BY AN EMPLOYEE OF
RESPONDENT.  IN THE FACE OF THAT RECORD, THE COURT NEVERTHELESS
CONVERTED ITS RESTRAINING ORDER INTO A TEMPORARY INJUNCTION AND THE
DEFENDANTS, WHO ARE THE PETITIONERS HEREIN, APPEALED TO THE SUPREME
COURT OF LOUISIANA.  WHILE THAT APPEAL WAS PENDING, THE TRIAL COURT, ON
THE SAME RECORD, MADE ITS INJUNCTION PERMANENT.  PETITIONERS APPEALED
THAT DECISION TO THE SUPREME COURT OF LOUISIANA AND THE TWO APPEALS
WERE CONSOLIDATED.  THERE THE PERMANENT INJUNCTION WAS SUSTAINED, ONE
JUDGE CONCURRING SPECIALLY AND ANOTHER DISSENTING, IN PART, ON AN ISSUE
NOT MATERIAL HERE.  227 LA. 1109, 81 SO. 2D 413. 

THE STATE SUPREME COURT'S GROUND FOR SUSTAINING THE INJUNCTION WAS
THAT THE UNION, WHICH SOUGHT TO BE RECOGNIZED, HAD FAILED TO FILE WITH
THE SECRETARY OF LABOR THE FINANCIAL AND OTHER DATA REQUIRED BY SEC.
9(F) AND (G), AND HAD FAILED TO FILE WITH THE LABOR BOARD THE NON
COMMUNIST AFFIDAVITS REQUIRED BY SEC. 9(H).  THE COURT HELD THAT THE
UNION, BY FAILING TO COMPLY WITH SEC. 9(F), (G) AND (H), HAD PRECLUDED
ITS CERTIFICATION BY THE BOARD, AND THAT, ACCORDINGLY, NEITHER THE
EMPLOYEES NOR THE UNION HAD A RIGHT TO PICKET THE PLANT TO INDUCE THE
COMPANY TO RECOGNIZE THE NONCOMPLYING UNION.   THE COURT, AGREEING WITH
RESPONDENT'S THEORY, TOOK THE POSITION THAT SUCH RECOGNITION WOULD BE
ILLEGAL AND THAT PICKETING TO SECURE IT, THEREFORE, WAS SUBJECT TO
RESTRAINT BY A STATE COURT.  (FN2)  REHEARING WAS DENIED. 

BECAUSE OF THE SIGNIFICANCE OF THAT DECISION IN RELATION TO THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED, WE GRANTED CERTIORARI AND
INVITED THE SOLICITOR GENERAL TO FILE A BRIEF SETTING FORTH THE VIEWS
OF THE NATIONAL LABOR RELATIONS BOARD.  350 U.S. 860.  SUCH A BRIEF WAS
FILED FAVORING A REVERSAL. 

THERE IS NO DOUBT THAT, IF THE UNION HAD FILED THE DATA AND
AFFIDAVITS REQUIRED BY SEC. 9(F), (G) AND (H), THE COMPLAINT, UNDER THE
CIRCUMSTANCES OF THIS CASE, WOULD HAVE HAD TO BE DISMISSED BY THE STATE
COURT FOR LACK OF JURISDICTION, AND THAT, IF AN INJUNCTION WERE SOUGHT
THROUGH THE NATIONAL LABOR RELATIONS BOARD, THE REQUEST WOULD HAVE HAD
TO BE DENIED ON THE MERITS.  UNDER THOSE CIRCUMSTANCES, THE BOARD WOULD
HAVE HAD JURISDICTION OF THE ISSUE TO THE EXCLUSION OF THE STATE
COURT.  GARNER V. TEAMSTERS UNION, 346 U.S. 485, AND SEE WEBER V.
ANHEUSER-BUSCH, INC., 348 U.S. 468.  IN THE ABSENCE OF ANY BONA FIDE
DISPUTE AS TO THE EXISTENCE OF THE REQUIRED MAJORITY OF ELIGIBLE
EMPLOYEES, THE EMPLOYER'S DENIAL OF RECOGNITION OF THE UNION WOULD HAVE
VIOLATED SEC. 8(A)(5) OF THE ACT.  (FN3) 

THE ISSUE BEFORE US THUS TURNS UPON THE EFFECT OF THE UNION'S CHOICE
NOT TO FILE THE INFORMATION AND AFFIDAVITS DESCRIBED IN SEC. 9(F), (G)
AND (H).  THE STATE COURT MISCONCEIVED THAT EFFECT.  THE UNION'S
FAILURE TO FILE WAS NOT A CONFESSION OF GUILT OF ANYTHING.  IT WAS
MERELY A CHOICE NOT TO MAKE PUBLIC CERTAIN INFORMATION.  THE ACT
PRESCRIBES NO FINE OR PENALTY, IN THE ORDINARY SENSE, FOR FAILURE TO
FILE THE SPECIFIED DATA AND AFFIDAVITS.  THE ACT DOES NOT EVEN DIRECT
THAT THEY BE FILED.   THE NEAREST TO SUCH A DIRECTION IN THE ACT IS THE
STATEMENT, IN SEC. 9(G), THAT IT SHALL BE "THE OBLIGATION" OF ALL LABOR
ORGANIZATIONS TO FILE ANNUAL 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)."  HOWEVER, NEITHER SUBSECTION
(F)(A) NOR (F)(B) OF SEC. 9 REQUIRES ANY INITIAL FILING TO BE MADE. 
EACH MERELY DESCRIBES WHAT IS REQUIRED TO BE FILED IN THE EVENT THAT A
LABOR ORGANIZATION ELECTS TO SEEK THE ADVANTAGES OFFERED BY SUBSECTION
(F). 

CONGRESS SEEKS TO INDUCE LABOR ORGANIZATIONS TO FILE THE DESCRIBED
DATA AND AFFIDAVITS BY MAKING VARIOUS BENEFITS OF THE ACT STRICTLY
CONTINGENT UPON SUCH FILING.  SEE NEW JERSEY CARPET MILLS, INC., 92
N.L.R.B. 604, 610.  IN PARTICULAR, CONGRESS MAKES THE SERVICES OF THE
LABOR BOARD AVAILABLE TO LABOR ORGANIZATIONS ONLY UPON THEIR FILING OF
THE SPECIFIED DATA AND AFFIDAVITS.  (FN4)  BY ITS NONCOMPLIANCE WITH
SEC. 9(F), (G) AND (H), A UNION DOES NOT EXEMPT ITSELF FROM OTHER
APPLICABLE PROVISIONS OF THE ACT.  (FN5) 

WHAT, THEN, IS THE PRECISE STATUS OF A LABOR ORGANIZATION THAT ELECTS
NOT TO FILE SOME OR ALL OF THE DATA OR AFFIDAVITS IN QUESTION?  IT IS
SIGNIFICANT THAT THE EFFECT OF NONCOMPLIANCE IS THE SAME WHETHER ONE OR
MORE OF THE FILINGS ARE OMITTED.  ACCORDINGLY, IT SIMPLIFIES THE ISSUE
TO ASSUME A SITUATION WHERE A UNION HAS FILED THE NON-COMMUNIST
AFFIDAVITS SPECIFIED IN SEC. 9(H), BUT HAS CHOSEN NOT TO DISCLOSE THE
INFORMATION CALLED FOR BY SEC. 9(F)(A)(2) AND (3) AS TO THE SALARIES OF
ITS OFFICERS, OR THE MANNER IN WHICH THEY HAVE BEEN ELECTED.  THERE IS
NO PROVISION STATING THAT, UNDER THOSE CIRCUMSTANCES, THE UNION MAY NOT
REPRESENT AN APPROPRIATE UNIT OF EMPLOYEES IF A MAJORITY OF THOSE
EMPLOYEES GIVE IT AUTHORITY SO TO DO.  LIKEWISE, THERE IS NO STATEMENT
PRECLUDING THEIR EMPLOYER FROM VOLUNTARILY RECOGNIZING SUCH A
NONCOMPLYING UNION AS THEIR BARGAINING REPRESENTATIVE.  SECTION 8(A)(5)
(FN6) DECLARES IT TO BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER "TO
REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF HIS
EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A)."  SECTION 9(A),
(FN7) WHICH DEALS EXPRESSLY WITH EMPLOYEE REPRESENTATION, SAYS NOTHING
AS TO HOW THE EMPLOYEES' REPRESENTATIVE SHALL BE CHOSEN.  SEE LEBANON
STEEL FOUNDRY V. LABOR BOARD, 76 U.S. APP. D.C. 100, 103, 130 F.2D 404,
407.  IT DOES NOT MAKE IT A CONDITION THAT THE REPRESENTATIVE SHALL
HAVE COMPLIED WITH SEC. 9(F), (G) OR (H), OR SHALL BE CERTIFIED BY THE
BOARD, OR EVEN BE ELIGIBLE FOR SUCH CERTIFICATION.  (FN8) 

LIKEWISE, SEC. 7, WHICH DEALS WITH THE EMPLOYEES' RIGHTS TO SELF
ORGANIZATION AND REPRESENTATION, MAKES NO REFERENCE TO ANY NEED THAT
THE EMPLOYEES' CHOSEN REPRESENTATIVE MUST HAVE COMPLIED WITH SEC. 9(F),
(G) OR (H).  (FN9)  SECTION 7 PROVIDES: 

"EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL
OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED
BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION 8(A)(3)."  61 STAT.
140, 29 U.S.C. SEC. 157.  (FN10) 

SUBSECTIONS (F), (G) AND (H) OF SEC. 9 MERELY DESCRIBE ADVANTAGES
THAT MAY BE GAINED BY COMPLIANCE WITH THEIR CONDITIONS.  THE VERY
SPECIFICITY OF THE ADVANTAGES TO BE GAINED AND THE EXPRESS PROVISION
FOR THE LOSS OF THESE ADVANTAGES IMPLY THAT NO CONSEQUENCES OTHER THAN
THOSE SO LISTED SHALL RESULT FROM NONCOMPLIANCE.  (FN11) 

THE NONCOMPLIANCE OF THE UNION WITH SEC. 9(F), (G) AND (H) IN THE
INSTANT CASE PRECLUDES ANY RIGHT OF THE UNION TO SEEK CERTIFICATION OF
ITS STATUS BY THE LABOR BOARD.  (FN12)  SUCH ELIMINATION OF THE BOARD
DOES NOT, HOWEVER, ELIMINATE THE APPLICABILITY OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, AND DOES NOT SETTLE THE ISSUE AS TO THE
RIGHT OF THE STATE COURT TO ENJOIN THE EMPLOYEES AND THEIR UNION FROM
PEACEFULLY PICKETING THE EMPLOYER'S PLANT FOR THE PURPOSE OF SECURING
RECOGNITION. 

THE INDUSTRIAL RELATIONS BETWEEN THE COMPANY AND ITS EMPLOYEES
NONETHELESS AFFECT INTERSTATE COMMERCE AND COME WITHIN THE FIELD
OCCUPIED BY THE NATIONAL LABOR RELATIONS ACT, AS AMENDED.  THE LABOR
BOARD IS BUT AN AGENCY THROUGH WHICH CONGRESS HAS AUTHORIZED CERTAIN
INDUSTRIAL RELATIONS TO BE SUPERVISED AND ENFORCED.  THE ACT GOES
FURTHER.  THE INSTANT EMPLOYER, EMPLOYEES AND UNION ARE CONTROLLED BY
ITS APPLICABLE PROVISIONS AND ALL COURTS, STATE AS WELL AS FEDERAL, ARE
BOUND BY THEM. 

COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING" AND LEAVES
OPEN THE MANNER OF CHOOSING SUCH REPRESENTATIVES WHEN CERTIFICATION
DOES NOT APPLY.  THE EMPLOYEES HAVE EXERCISED THAT RIGHT THROUGH THE
ACTION OF SUBSTANTIALLY MORE THAN A MAJORITY OF THEM AUTHORIZING THE
INSTANT UNION TO REPRESENT THEM. 

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:  ...  ."  THAT
FITS THIS SITUATION PRECISELY.  IT DOES NOT REQUIRE THE DESIGNATED
LABOR ORGANIZATION TO DISCLOSE THE SALARIES OF ITS OFFICERS, OR EVEN TO
FILE NON-COMMUNIST AFFIDAVITS. 

UNDER THOSE SECTIONS AND BY VIRTUE OF THE CONCEDED MAJORITY
DESIGNATION OF THE UNION, THE EMPLOYER IS OBLIGATED TO RECOGNIZE THE
DESIGNATED UNION.  UPON THE EMPLOYER'S REFUSAL TO DO SO, THE UNION,
BECAUSE OF ITS NON-COMPLIANCE WITH SEC. 9(F), (G) AND (H), CANNOT
RESORT TO THE LABOR BOARD.  IT CAN, HOWEVER, TAKE OTHER LAWFUL ACTION
SUCH AS THAT ENGAGED IN HERE. 

THE COMPANY CAN, IF IT SO WISHES, LAWFULLY RECOGNIZE THE UNION AS THE
EMPLOYEES' REPRESENTATIVE.  THAT BEING SO, THERE IS NO REASON WHY THE
EMPLOYEES, AND THEIR UNION UNDER THEIR AUTHORIZATION, MAY NOT, UNDER
SEC. 13, STRIKE, (FN13) AND, UNDER SEC. 7, PEACEFULLY PICKET THE
PREMISES OF THEIR EMPLOYER TO INDUCE IT THUS TO RECOGNIZE THEIR CHOSEN
REPRESENTATIVE.  SEE WEST TEXAS UTILITIES CO. V. LABOR BOARD, 87 U.S.
APP. D.C.  179, 185, 184 F.2D 233, 239, AND THE OTHER CASES CITED IN
NOTE 6, SUPRA.  (FN14)    SUCH BEING THE CASE, THE STATE COURT IS
GOVERNED BY THE FEDERAL LAW WHICH HAS BEEN APPLIED TO INDUSTRIAL
RELATIONS, LIKE THESE, AFFECTING INTERSTATE COMMERCE AND THE STATE
COURT ERRED IN ENJOINING THE PEACEFUL PICKETING HERE PRACTICED.  A
"STATE MAY NOT PROHIBIT THE EXERCISE OF RIGHTS WHICH THE FEDERAL ACTS
PROTECT."  WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, 474, AND SEE
GARNER V. TEAMSTERS UNION, 346 U.S. 485, 494.    THE JUDGMENT OF THE
SUPREME COURT OF LOUISIANA, ACCORDINGLY, IS REVERSED AND THE CASE IS
REMANDED TO IT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  "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:  ...  . 

     *         *         *         *         * 

"(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 10, 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: 

"(1)  THE NAME OF SUCH LABOR ORGANIZATION AND THE ADDRESS OF ITS
PRINCIPAL PLACE OF BUSINESS. 

"(2)  THE NAMES, TITLES, AND COMPENSATION AND ALLOWANCES OF ITS THREE
PRINCIPAL OFFICERS AND OF ANY OF ITS OTHER OFFICERS OR AGENTS WHOSE
AGGREGATE COMPENSATION AND ALLOWANCES FOR THE PRECEDING YEAR EXCEEDED
$5,000, AND THE AMOUNT OF THE COMPENSATION AND ALLOWANCES PAID TO EACH
SUCH OFFICER OR AGENT DURING SUCH YEAR. 

"(3)  THE MANNER IN WHICH THE OFFICERS AND AGENTS REFERRED TO IN
CLAUSE (2) WERE ELECTED, APPOINTED, OR OTHERWISE SELECTED. 

"(4)  THE INITIATION FEE OR FEES WHICH NEW MEMBERS ARE REQUIRED TO
PAY ON BECOMING MEMBERS OF SUCH LABOR ORGANIZATION. 

"(5)  THE REGULAR DUES OR FEES WHICH MEMBERS ARE REQUIRED TO PAY IN
ORDER TO REMAIN MEMBERS IN GOOD STANDING OF SUCH LABOR ORGANIZATION. 

"(6)  A DETAILED STATEMENT OF, OR REFERENCE TO PROVISIONS OF ITS
CONSTITUTION AND BYLAWS SHOWING THE PROCEDURE FOLLOWED WITH RESPECT TO,
(A) QUALIFICATION FOR OR RESTRICTIONS ON MEMBERSHIP, (B) ELECTION OF
OFFICERS AND STEWARDS, (C) CALLING OF REGULAR AND SPECIAL MEETINGS, (D)
LEVYING OF ASSESSMENTS, (E) IMPOSITION OF FINES, (F) AUTHORIZATION FOR
BARGAINING DEMANDS, (G) RATIFICATION OF CONTRACT TERMS, (H)
AUTHORIZATION FOR STRIKES, (I) AUTHORIZATION FOR DISBURSEMENT OF UNION
FUNDS, (J) AUDIT OF UNION FINANCIAL TRANSACTIONS, (K) PARTICIPATION IN
INSURANCE OR OTHER BENEFIT PLANS, AND (L) EXPULSION OF MEMBERS AND THE
GROUNDS THEREFOR. 

"AND (B) CAN SHOW THAT PRIOR THERETO IT HAS: 

"(1)  FILED WITH THE SECRETARY OF LABOR, IN SUCH FORM AS THE
SECRETARY MAY PRESCRIBE, A REPORT SHOWING ALL OF (A) ITS RECEIPTS OF
ANY KIND AND THE SOURCES OF SUCH RECEIPTS, (B) ITS TOTAL ASSETS AND
LIABILITIES AS OF THE END OF ITS LAST FISCAL YEAR, (C) THE
DISBURSEMENTS MADE BY IT DURING SUCH FISCAL YEAR, INCLUDING THE
PURPOSES FOR WHICH MADE; AND: 

"(2)  FURNISHED TO ALL OF THE MEMBERS OF SUCH LABOR ORGANIZATION
COPIES OF THE FINANCIAL REPORT REQUIRED BY PARAGRAPH (1) HEREOF TO BE
FILED WITH THE SECRETARY OF LABOR. 

"(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).  NO LABOR ORGANIZATION SHALL BE
ELIGIBLE FOR CERTIFICATION UNDER THIS SECTION AS THE REPRESENTATIVE OF
ANY EMPLOYEES, AND NO COMPLAINT SHALL ISSUE UNDER SECTION 10 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. 

"(H)  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 10, UNLESS THERE IS ON
FILE WITH THE BOARD AN AFFIDAVIT EXECUTED CONTEMPORANEOUSLY OR WITHIN
THE PRECEDING TWELVE-MONTH PERIOD BY EACH OFFICER OF SUCH LABOR
ORGANIZATION AND THE OFFICERS OF ANY NATIONAL OR INTERNATIONAL LABOR
ORGANIZATION OF WHICH IT IS AN AFFILIATE OR CONSTITUENT UNIT THAT HE IS
NOT A MEMBER OF THE COMMUNIST PARTY OR AFFILIATED WITH SUCH PARTY, AND
THAT HE DOES NOT BELIEVE IN, AND IS NOT A MEMBER OF OR SUPPORTS ANY
ORGANIZATION THAT BELIEVES IN OR TEACHES, THE OVERTHROW OF THE UNITED
STATES GOVERNMENT BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL
METHODS.  THE PROVISIONS OF SECTION 35A OF THE CRIMINAL CODE SHALL BE
APPLICABLE IN RESPECT TO SUCH AFFIDAVITS."  61 STAT. 143, 145-146, 65
STAT. 602, 29 U.S.C. SEC. 159(A), (F), (G) AND (H). 

FN2  RESPONDENT ALSO HAD SOUGHT THE INJUNCTION ON THE ALTERNATIVE
GROUND THAT THE REQUEST FOR RECOGNITION OF THE UNION WAS BEING MADE IN
THE ABSENCE OF A SELECTION OF THE UNION BY THE MAJORITY OF RESPONDENT'S
EMPLOYEES.  THE SUPREME COURT OF LOUISIANA DID NOT PASS UPON THIS
CONTENTION.  THE RECORD UPON WHICH THE TEMPORARY AND THE PERMANENT
INJUNCTIONS WERE GRANTED CONTAINED CONCEDEDLY GENUINE APPLICATIONS FOR
UNION MEMBERSHIP AND AUTHORIZATIONS OF REPRESENTATION FROM 179 OF THE
225 ELIGIBLE EMPLOYEES.  ACCORDINGLY, WE DO NOT NOW CONSIDER THE
QUESTIONS THAT WOULD HAVE BEEN PRESENTED IF THE UNION OR THE PICKETS
HAD REPRESENTED LESS THAN A MAJORITY OF THE ELIGIBLE EMPLOYEES, OR IF
THERE HAD BEEN A BONA FIDE DISPUTE AS TO THE EXISTENCE OF AUTHORIZATION
FROM A MAJORITY OF THE ELIGIBLE EMPLOYEES. 

FN3  "SEC.  8.  (A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER: 

     *         *         *         *         * 

"(5)  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A)."  61 STAT.
140, 141, 29 U.S.C. SEC. 158(A)(5).  FOR THE MATERIAL PORTION OF SEC.
9(A), SEE NOTE 1, SUPRA. 

FN4  CONGRESS SEEKS "TO STOP THE USE OF THE LABOR BOARD" BY NON
COMPLYING UNIONS.  LABOR BOARD V. DANT, 344 U.S. 375, 385.  FOR
EXAMPLE, THE FOLLOWING BENEFITS ARE AVAILABLE TO LABOR ORGANIZATIONS
ONLY UPON THEIR VOLUNTARY COMPLIANCE WITH THE CONDITIONS PRESCRIBED IN
THE STATUTORY PROVISIONS LISTED BELOW: 

(1)  THE BOARD'S INVESTIGATIONS OF QUESTIONS, RAISED BY LABOR
ORGANIZATIONS, CONCERNING REPRESENTATION, ON COMPLIANCE WITH SEC. 9(F)
AND (H); (2) LABOR ORGANIZATIONS' ELIGIBILITY FOR CERTIFICATION AS
REPRESENTATIVES, ON COMPLIANCE WITH SEC. 9(G) AND (H); (3) THE BOARD'S
ISSUANCE OF COMPLAINTS PURSUANT TO CHARGES BY LABOR ORGANIZATIONS, ON
COMPLIANCE WITH SEC. 9(F) AND (G); (4) PRIVILEGE OF MAKING A UNION-SHOP
AGREEMENT, SEE SEC. 8(A)(3); (5) LABOR ORGANIZATIONS' RIGHT TO OBTAIN
REDRESS FROM BOARD FOR UNFAIR LABOR PRACTICES, SEE SEC. 8; (6) LIMITED
RIGHT TO ENGAGE IN BOYCOTT WHEN SEEKING RECOGNITION, SEE SEC.
8(B)(4)(B); (7) LIMITED RIGHT TO STRIKE FOR ASSIGNMENT OF WORK, SEE
SEC. 8(B)(4)(D); AND (8) LIMITED PROTECTION FOR A CERTIFIED
REPRESENTATIVE AGAINST A STRIKE FOR RECOGNITION OF A RIVAL
ORGANIZATION, SEE SEC. 8(B)(4)(C). 

FN5  THE BOARD MAY PROVIDE RELIEF IN CASE OF A REFUSAL BY A
NONCOMPLYING UNION TO BARGAIN IN GOOD FAITH, AS REQUIRED BY SEC.
8(B)(3).  SEE CHICAGO TYPOGRAPHICAL UNION NO. 16, 86 N.L.R.B. 1041,
1048, AND N. 16; NATIONAL MARITIME UNION, 78 N.L.R.B. 971, 987-988.  AS
TO DECERTIFICATION OF A NONCOMPLYING UNION UNDER SEC. 9(C)(1)(A)(II),
SEE HARRIS FOUNDRY & MACHINE CO., 76 N.L.R.B. 118.  FOR THE EFFECT OF
NONCOMPLIANCE WITH SEC. 9(H), SEE GENERALLY AMERICAN COMMUNICATIONS
ASSN. V. DOUDS, 339 U.S. 382, 390. 

FN6  SEE NOTE 3, SUPRA.  WHEN A MAJORITY OF AN EMPLOYER'S ELIGIBLE
EMPLOYEES HAVE AUTHORIZED A NONCOMPLYING UNION TO REPRESENT THEM AND
SUCH UNION LATER HAS COMPLIED WITH THE STATUTORY FILING REQUIREMENTS,
THE UNION, UNDER APPROPRIATE CIRCUMSTANCES, HAS BEEN PERMITTED TO
INVOKE THE BOARD'S PROCESSES TO REMEDY THE CONSEQUENCES OF THE
EMPLOYER'S PRIOR REFUSAL TO BARGAIN WITH THE UNION. 

"  ...  CONGRESS HAS NOT MADE COMPLIANCE WITH THE FILING REQUIREMENTS
OF SEC. 9(F), (G) AND (H) A CONDITION PRECEDENT TO THE OBLIGATION OF AN
EMPLOYER UNDER SEC. 8(A)(5) TO BARGAIN COLLECTIVELY WITH THE CHOSEN
REPRESENTATIVE OF THE EMPLOYEES; SUCH COMPLIANCE IS MERELY MADE A
CONDITION PRECEDENT TO INVOKING THE MACHINERY OF THE ACT FOR THE
INVESTIGATION OF A QUESTION CONCERNING REPRESENTATION, OR FOR THE
ISSUANCE OF A COMPLAINT CHARGING THE COMMISSION OF UNFAIR LABOR
PRACTICES."  LABOR BOARD V. REED & PRINCE MFG. CO., 205 F.2D 131, 133
134.  SEE ALSO, LABOR BOARD V. PECHEUR LOZENGE CO., 209 F.2D 393, 402
403; LABOR BOARD V. TENNESSEE EGG CO., 201 F.2D 370; WEST TEXAS
UTILITIES CO. V. LABOR BOARD, 87 U.S. APP. D.C. 179, 185, 184 F.2D 233,
239. 

FN7  SEE NOTE 1, SUPRA. 

FN8  A BOARD ELECTION IS NOT THE ONLY METHOD BY WHICH AN EMPLOYER MAY
SATISFY ITSELF AS TO THE UNION'S MAJORITY STATUS.  SEE, E.G., LABOR
BOARD V. BRADFORD DYEING ASSN., 310 U.S. 318, 338-339; LABOR BOARD V.
KNICKERBOCKER PLASTIC CO., 218 F.2D 917, 921-922; LABOR BOARD V. PARMA
WATER LIFTER CO., 211 F.2D 258, 261; LABOR BOARD V. INDIANAPOLIS
NEWSPAPERS, INC., 210 F.2D 501, 503-504; LABOR BOARD V. KOBRITZ, 193
F.2D 8, 14; BROOKVILLE GLOVE CO., 114 N.L.R.B. 213, 214, N. 4, 36
L.R.R.M. 1548, 1549, N. 4. 

FN9  "  ...  THE ACT DOES NOT PROSCRIBE BARGAINING WITH A
NONCOMPLYING UNION; INDEED, CONSONANT WITH PUBLIC POLICY, AN EMPLOYER
MAY VOLUNTARILY RECOGNIZE AND DEAL WITH SUCH A UNION.  IF CONGRESS HAD
INTENDED THE ACT TO HAVE THE EFFECT URGED BY THE RESPONDENTS, IT EASILY
COULD HAVE INSERTED AN EXPRESS PROVISION IN THE STATUTE TO ACCOMPLISH
SUCH RESULT.  THIS, CONGRESS DID NOT DO."  BROOKVILLE GLOVE CO., SUPRA,
AT 1549.  THE BOARD THERE HELD THAT THE EMPLOYER COMMITTED AN UNFAIR
LABOR PRACTICE (SEC. 8(A)(3)) WHEN IT DISCHARGED EMPLOYEES WHO STRUCK
TO INDUCE THEIR EMPLOYER TO RECOGNIZE AS THEIR BARGAINING
REPRESENTATIVE THE SAME NONCOMPLYING UNION (UNITED MINE WORKERS) WHICH
IS A PETITIONER HERE.  THERE ALSO THE UNION HAD BEEN DESIGNATED AS
THEIR CHOSEN REPRESENTATIVE BY A MAJORITY OF THE ELIGIBLE EMPLOYEES. 
SEE ALSO, RUBIN BROS. FOOTWEAR, INC., 99 N.L.R.B.  610, 619; LABOR
BOARD V. COAL CREEK COAL CO., 204 F.2D 579, 581; LABOR BOARD V.
ELECTRONICS EQUIPMENT CO., 194 F.2D 650, 651, N. 1; LABOR BOARD V.
PRATT, READ & CO., 191 F.2D 1006, 1008.  CF. OHIO FERRO-ALLOYS CORP. V.
LABOR BOARD, 213 F.2D 646; STEWART-WARNER CORP. V. LABOR BOARD, 194
F.2D 207. 

FN10  THE CROSS REFERENCE TO SEC. 8(A)(3) HAS TO DO ONLY WITH AN
EXCEPTION IN FAVOR OF UNION SHOPS. 

FN11  FOR EXAMPLE, SEC. 9(F) PRESCRIBES THAT, UNLESS THE LABOR
ORGANIZATION FILES THE REQUIRED MATERIAL, "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  ...  ."  SUBSECTION (C) OF SEC. 9 SO
REFERRED TO RELATES TO ELECTIONS OF COLLECTIVE-BARGAINING
REPRESENTATIVES UNDER SUPERVISION OF THE BOARD.  SECTION 9(F) ALSO
PRESCRIBES THAT, UNLESS THE LABOR ORGANIZATION FILES THE REQUIRED
MATERIAL, "NO COMPLAINT SHALL BE ISSUED BY THE BOARD PURSUANT TO A
CHARGE MADE BY A LABOR ORGANIZATION UNDER SUBSECTION (B) OF SECTION 10
...  ."  SUBSECTION (B) OF SEC. 10 SO REFERRED TO RELATES TO COMPLAINTS
BY THE BOARD, SO THAT HERE AGAIN THAT WHICH IS CUT OFF BY NONCOMPLIANCE
IS ONLY THAT WHICH THE ACT HAS ADDED.  SUBSECTIONS (G) AND (H) OF SEC.
9 CONTAIN LIKE PROVISIONS. 

FN12  FOR THE BOARD'S CONCLUSION THAT AN EMPLOYER MAY NOT HAVE
RECOURSE TO THE BOARD TO VERIFY, BY CERTIFICATION, THE UNION'S STATUS
OR LACK OF STATUS AS THE EXCLUSIVE REPRESENTATIVE OF THE ELIGIBLE
EMPLOYEES, SEE HERMAN LOEWENSTEIN, INC., 75 N.L.R.B. 377; SIGMUND COHN
MFG. CO., 75 N.L.R.B. 177, 180, N. 2; NATIONAL MARITIME UNION V.
HERZOG, 78 F. SUPP. 146, 156, AFF'D, 334 U.S. 854; FAY V. DOUDS, 172
F.2D 720, 724-726. 

FN13  "SEC.  13.  NOTHING IN THIS ACT, EXCEPT AS SPECIFICALLY
PROVIDED FOR HEREIN, SHALL BE CONSTRUED SO AS EITHER TO INTERFERE WITH
OR IMPEDE OR DIMINISH IN ANY WAY THE RIGHT TO STRIKE, OR TO AFFECT THE
LIMITATIONS OR QUALIFICATIONS ON THAT RIGHT."  61 STAT. 151, 29 U.S.C.
SEC. 163.  SEE ALSO, LABOR BOARD V. RICE MILLING CO., 341 U.S. 665,
673, AND CASES CITED IN NOTE 6, SUPRA. 

FN14  "PRESENT LAW IN NO WAY LIMITS THE PRIMARY STRIKE FOR
RECOGNITION EXCEPT IN THE FACE OF ANOTHER UNION'S CERTIFICATION." 
REPORT OF THE JOINT COMMITTEE ON LABOR-MANAGEMENT RELATIONS, NO. 986,
PT. 3, 80TH CONG., 2D SESS. 71; S. REP. NO. 105, 80TH CONG., 1ST SESS.
22; H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 43.    MR. JUSTICE
HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

ALTHOUGH MY DOUBTS ARE NOT SHARED BY OTHERS, THEY HAVE NOT BEEN
OVERCOME, AND THE NATURE OF THE PROBLEM RAISED BY THIS CASE MAKES IT
NOT INAPPROPRIATE TO EXPRESS THEM. 

THE PROBLEM IS THE RECURRING DIFFICULTY OF DETERMINING WHEN A FEDERAL
ENACTMENT BARS THE EXERCISE OF WHAT OTHERWISE WOULD CLEARLY BE WITHIN
THE SCOPE OF A STATE'S LAWMAKING POWER.  THERE IS, OF COURSE, NO
DIFFICULTY WHEN CONGRESS EXPLICITLY DISPLACES STATE POWER.  THE
PERPLEXITY ARISES IN A SITUATION LIKE THE PRESENT, WHERE SUCH
DISPLACEMENT BY THE CONTROLLING FEDERAL POWER IS ATTRIBUTED TO
IMPLICATIONS OR RADIATIONS OF A FEDERAL STATUTE. 

THE VARIOUS ASPECTS IN WHICH THIS PROBLEM COMES BEFORE THE COURT ARE
SELDOM EASY OF SOLUTION.  DECISIONS ULTIMATELY DEPEND ON JUDGMENT IN
BALANCING OVERRIDING CONSIDERATIONS MAKING FOR THE REQUIREMENT OF AN
EXCLUSIVE NATION-WIDE REGIME IN A PARTICULAR FIELD OF LEGAL CONTROL AND
RESPECT FOR THE ALLOWABLE AREA WITHIN WHICH THE FORTY-EIGHT STATES MAY
ENFORCE THEIR DIVERSE NOTIONS OF POLICY.  THE COURT HAS HERETOFORE
ADVERTED TO THE UNCERTAINTIES IN THE ACCOMMODATION OF THESE INTERESTS
OF THE NATION AND THE STATES IN REGARD TO INDUSTRIAL RELATIONS
AFFECTING INTERSTATE COMMERCE - UNCERTAINTIES INEVITABLE IN THE PRESENT
STATE OF FEDERAL LEGISLATION. 

PROPER ACCOMMODATION IS DEPENDENT ON AN EMPIRIC PROCESS, ON CASE-TO
CASE DETERMINATIONS.  ABSTRACT PROPOSITIONS AND UNQUESTIONED
GENERALITIES DO NOT FURNISH ANSWERS. 

IN THIS CASE, THE COURT CONCLUDES THAT LOUISIANA LAW MUST YIELD TO
THE DOMINANCE OF THE NATIONAL LABOR RELATIONS ACT.  PRESUMABLY, WHAT
LOUISIANA HAS DECREED IN THE JUDGMENT NOW REVERSED WOULD BE WITHIN
LOUISIANA'S POWER WERE IT NOT FOR THE ARGUMENTATIVELY DERIVED
WITHDRAWAL OF THAT POWER BY THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED.  OVER THE YEARS, THE COURT HAS FOUND SUCH WITHDRAWAL OF STATE
POWER FROM REASONABLE IMPLICATIONS OF WHAT CONGRESS WROTE IN THE
NATIONAL LABOR RELATIONS ACT IN SOME CASES AND NOT IN OTHERS. 
WITHDRAWAL HAS BEEN FOUND TO EXIST IN AT LEAST TWO TYPES OF SITUATIONS:
(1) WHERE STATE LAW INTERFERES WITH FEDERAL RIGHTS CONFERRED ON
EMPLOYEES BY SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT, E.G., HILL V.
FLORIDA, 325 U.S. 538; (2) WHERE STATE LAW MAKES INROADS ON THE PRIMARY
JURISDICTION WITH WHICH CONGRESS HAS INVESTED THE NATIONAL LABOR
RELATIONS BOARD, E.G., WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468. 
HERE WE ARE NOT CONCERNED WITH THE BOARD'S PRIMARY JURISDICTION.  THE
ISSUE IS WHETHER LOUISIANA, BY ENJOINING, ACCORDING TO ITS LAW, A
STRIKE CALCULATED TO COERCE RESPONDENT TO BARGAIN WITH A UNION WHICH
HAS NOT COMPLIED WITH THE NON-COMMUNIST AND OTHER REPORTING PROVISIONS,
SEC. 9(F), (G) AND (H) OF THE TAFT-HARTLEY ACT, INTERFERES WITH THE
PROTECTION AFFORDED BY SEC. 7 OF THAT ACT, WHERE THAT UNION MAY
REPRESENT A MAJORITY OF EMPLOYEES. 

ACTIVITIES IN FURTHERANCE OF COLLECTIVE BARGAINING.  A STRIKE
ACCOMPANIED BY PEACEFUL PICKETING IS A TYPICAL EXPRESSION OF SUCH
AUTHORIZED CONCERTED ACTIVITY.  INSTANCES OF SPECIAL SITUATIONS THAT
ARE CLEARLY OUTSIDE OF THIS PROTECTION ARE (1) WHERE THE ASPECT THAT
THE STRIKE ACTION TAKES CONSTITUTES A UNION UNFAIR LABOR PRACTICE
INTERDICTED BY THE TAFT-HARTLEY ACT, OR (2) WHERE THE STRIKE IS IN
VIOLATION OF THE FEDERAL CRIMINAL LAW.  SEE SOUTHERN S.S. CO. V. LABOR
BOARD, 316 U.S. 31.  IT WOULD BE SELF-CONTRADICTORY FOR FEDERAL LAW TO
PROTECT CONDUCT WHICH FEDERAL LAW BRANDS AS ILLEGAL.  THAT IS NOT THIS
SITUATION.  A NON-COMPLYING UNION, SUCH AS THE PETITIONER, HOWEVER
VIGOROUSLY IT MAY ASSERT NON-COMPLIANCE AS A MATTER OF PRINCIPLE, IS
NOT UNDER CONDEMNATION OF ILLEGALITY BY THE TAFT-HARTLEY ACT, OR ANY
OTHER FEDERAL LAW, IF IT EMPLOYS ECONOMIC PRESSURE TO ACHIEVE ITS
GOAL.  THE EXPLICIT CONSEQUENCE WHICH THAT ACT ATTACHES TO NON
COMPLIANCE IS THAT SUCH A UNION IS DENIED THE ADVANTAGES OF THE
NATIONAL LABOR RELATIONS BOARD - IT CANNOT UTILIZE THAT BOARD'S
MACHINERY TO OBTAIN CERTIFICATION AS THE BARGAINING REPRESENTATIVE OR
TO SECURE REDRESS AGAINST UNFAIR LABOR PRACTICES BY AN EMPLOYER. 

THE POLICY OF SEC. 9 IS THAT OF CONGRESS AND THE WISDOM OF THE POLICY
IS NOT OUR CONCERN.  BUT JUST AS ALL FAIR IMPLICATIONS MUST BE GIVEN TO
SEC. 7, SO IT IS EQUALLY INCUMBENT TO GIVE TO THE SCOPE OF THE NON
COMMUNIST AFFIDAVIT AND OTHER REPORTING REQUIREMENTS OF SEC. 9 THE
REASONABLE DIRECTION OF THEIR MEANING AND PURPOSE.  SO FAR AS ITS OWN
LAW-ENFORCEMENT MACHINERY FOR PROTECTING THE INTERESTS OF EMPLOYEES IS
CONCERNED, CONGRESS DESIGNED TO HAMPER NON-CONFORMING UNIONS AND TO
DISCRIMINATE AGAINST THEM BY DENYING THEM RIGHTS DEEMED OF THE UTMOST
IMPORTANCE TO TRADE UNIONS.  THIS BEING SO, I FIND IT RATHER DIFFICULT
TO CONCLUDE THAT, WHILE VISITING SUCH CONSEQUENCES UPON A NON
CONFORMING UNION IN THE FEDERAL DOMAIN OF LAW ENFORCEMENT, THE CONGRESS
HAS IMPLIEDLY WITHDRAWN FROM THE STATES THE POWER TO REGULATE SUCH A
UNION.  IN BALANCING THESE CONSIDERATIONS, THE WEIGHT OF MY JUDGMENT
TIPS IN FAVOR OF NOT FINDING IN SEC. 7 OF THE TAFT-HARTLEY ACT AN
IMPLIED LIMITATION UPON POWER EXERCISED BY LOUISIANA IN THE
CIRCUMSTANCES OF THIS CASE. 
..END :










AMERICAN AIRLINES, INC., V. NORTH AMERICAN AIRLINES, INC., 351 U.S. 79 


NO. 410.  ARGUED MARCH 6-7, 1956.  - DECIDED APRIL 23, 1956.  - 97 U.S.
APP. D.C. 85, 228 F.2D 432, REVERSED AND REMANDED. 


IN A PROCEEDING UNDER SEC. 411 OF THE CIVIL AERONAUTICS ACT, THE CIVIL
AERONAUTICS BOARD FOUND THAT RESPONDENT'S USE OF THE NAME "NORTH
AMERICAN" IN THE AIR TRANSPORTATION INDUSTRY, IN WHICH IT COMPETED WITH
AMERICAN AIRLINES, HAD CAUSED "SUBSTANTIAL PUBLIC CONFUSION," BY
CAUSING PERSONS TO CHECK IN AT THE WRONG CARRIER, ATTEMPT TO PURCHASE
TRANSPORTATION FROM THE WRONG CARRIER, MEET FLIGHTS OF THE WRONG
CARRIER, AND OTHERWISE, THAT SUCH PUBLIC CONFUSION WAS "LIKELY TO
CONTINUE" AND WAS AN UNFAIR METHOD OF COMPETITION WITHIN THE MEANING OF
SEC. 411.  IT FURTHER FOUND THAT THE PUBLIC INTEREST REQUIRED
ELIMINATION OF THE USE OF THE NAME, AND IT ORDERED RESPONDENT TO CEASE
AND DESIST FROM ENGAGING IN AIR TRANSPORTATION UNDER THE NAME OF "NORTH
AMERICAN AIRLINES" OR ANY COMBINATION OF THE WORD "AMERICAN."  HELD: 

1.  THE BOARD APPLIED CRITERIA APPROPRIATE TO A DETERMINATION OF
WHETHER A PROCEEDING BY IT IN THIS CASE WOULD BE IN THE "INTEREST OF
THE PUBLIC," AS REQUIRED BY SEC. 411, AND IT HAD JURISDICTION TO
INQUIRE INTO THE METHODS OF COMPETITION PRESENTED HERE AND TO DETERMINE
WHETHER THEY CONSTITUTED A VIOLATION OF THE ACT.  PP. 80-85. 

2.  THE BOARD'S EVIDENTIARY FINDINGS CONCERNED CONFUSION OF THE TYPE
WHICH CAN SUPPORT A FINDING OF VIOLATION OF SEC. 411.  PP. 85-86. 

3.  HOWEVER, SINCE THIS COURT DOES NOT UNDERSTAND THE COURT OF
APPEALS TO HAVE DECIDED WHETHER THE BOARD'S FINDINGS WERE SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE, THE CASE IS REMANDED TO
THAT COURT FOR FURTHER PROCEEDINGS IN THE LIGHT OF THIS OPINION.  P.
86. 

AMERICAN AIRLINES, INC. V. NORTH AMERICAN AIRLINES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

TWENTIETH CENTURY AIRLINES, INC., WAS ISSUED A LETTER OF REGISTRATION
AS A LARGE IRREGULAR AIR CARRIER BY THE CIVIL AERONAUTICS BOARD IN
1947.  FOR SOME REASON, BEGINNING IN 1951 IT CONDUCTED ITS BUSINESS
UNDER THE NAME OF NORTH AMERICAN AIRLINES.  ON MARCH 3, 1952, IT
AMENDED ITS ARTICLES OF INCORPORATION SO AS LEGALLY TO CHANGE ITS NAME
TO NORTH AMERICAN AIRLINES, INC. BY LETTER DATED MARCH 11, 1952, IT
REQUESTED THE C.A.B. TO REISSUE ITS LETTER OF REGISTRATION IN THE NEW
CORPORATE NAME.  THE BOARD TOOK NO ACTION ON THAT REQUEST, BUT RATHER,
IN AUGUST 1952, ADOPTED AN ECONOMIC REGULATION REQUIRING EVERY
IRREGULAR CARRIER AFTER NOVEMBER 15, 1952, TO DO BUSINESS IN THE NAME
IN WHICH ITS LETTER OF REGISTRATION WAS ISSUED.  14 CFR SEC. 291.28. 
THE BOARD EXPLAINED THAT UNDER THE REGULATION IT WOULD ALLOW CONTINUED
USE OF A DIFFERENT NAME TO WHICH GOOD WILL HAD BECOME ATTACHED, EXCEPT
WHERE USE OF SUCH NAME CONSTITUTES A VIOLATION OF SEC. 411 OF THE CIVIL
AERONAUTICS ACT, 52 STAT. 1003, AS AMENDED, 66 STAT. 628, 49 U.S.C.
SEC. 491, WHICH PROHIBITS UNFAIR OR DECEPTIVE COMMERCIAL PRACTICES AND
UNFAIR METHODS OF COMPETITION.  17 FED. REG. 7809. 

ON OCTOBER 6, 1952, RESPONDENT APPLIED FOR PERMISSION TO CONTINUE USE
OF ITS NAME, "NORTH AMERICAN AIRLINES."  PETITIONER, AMERICAN AIRLINES,
ON OCTOBER 17, 1952, FILED A MEMORANDUM WITH THE BOARD REQUESTING
DENIAL OF NORTH AMERICAN'S APPLICATION FOR THE REASONS, AMONG OTHERS,
THAT USE OF THE NAME "NORTH AMERICAN" INFRINGED UPON ITS LONG
ESTABLISHED TRADE NAME, "AMERICAN," AND CONSTITUTED AN UNFAIR METHOD OF
COMPETITION IN VIOLATION OF SEC. 411 OF THE ACT.  THE BOARD, AS
AUTHORIZED BY SEC. 411, ON ITS OWN MOTION INSTITUTED AN INVESTIGATION
AND HEARING INTO WHETHER THERE WAS A VIOLATION OF SEC. 411 BY NORTH
AMERICAN.  IT CONSOLIDATED WITH THAT PROCEEDING AN INVESTIGATION AND
HEARING INTO THE MATTER OF NORTH AMERICAN'S APPLICATION FOR CHANGE OF
NAME IN ITS LETTER OF REGISTRATION.  AMERICAN WAS GRANTED LEAVE TO
INTERVENE IN THE CONSOLIDATED PROCEEDING. 

AFTER EXTENSIVE HEARINGS, THE BOARD FOUND THAT RESPONDENT'S USE OF
THE NAME "NORTH AMERICAN" IN THE AIR TRANSPORTATION INDUSTRY, IN WHICH
IT COMPETED WITH AMERICAN, HAD CAUSED "SUBSTANTIAL PUBLIC CONFUSION,"
WHICH WAS "LIKELY TO CONTINUE" AND WHICH CONSTITUTED "AN UNFAIR OR
DECEPTIVE PRACTICE AND AN UNFAIR METHOD OF COMPETITION WITHIN THE
MEANING OF SECTION 411."  DOCKET NOS. 5774 AND 5928 (NOV. 4, 1953), 14
15 (MIMEO).  IT FOUND THAT THE PUBLIC INTEREST REQUIRED ELIMINATION OF
THE USE OF THE NAME, AND ACCORDINGLY IT DENIED THE APPLICATION OF NORTH
AMERICAN AND ORDERED IT TO "CEASE AND DESIST FROM ENGAGING IN AIR
TRANSPORTATION UNDER THE NAME 'NORTH AMERICAN AIRLINES, INC.,' 'NORTH
AMERICAN AIRLINES,' 'NORTH AMERICAN,' OR ANY COMBINATION OF THE WORD
'AMERICAN.'"  ID., AT 15-16.  ON PETITION FOR REVIEW BY NORTH AMERICAN,
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA SET ASIDE THE BOARD'S
ORDER.  97 U.S. APP. D.C. 85, 228 F.2D 432.  AMERICAN, HAVING BEEN
ADMITTED AS A PARTY BELOW BY INTERVENTION, SOUGHT, AND WE GRANTED,
CERTIORARI.  350 U.S. 894. 

AS WE UNDERSTAND ITS OPINION, THE COURT OF APPEALS SET ASIDE THE
ORDER BECAUSE THE PUBLIC INTEREST IN THIS PROCEEDING WAS INADEQUATE TO
JUSTIFY EXERCISE OF THE BOARD'S JURISDICTION UNDER SEC. 411.  ALTHOUGH
THE COURT WAS CRITICAL OF THE FINDING OF "SUBSTANTIAL PUBLIC
CONFUSION," IT DID NOT, ON ITS DISPOSITION OF THE CASE, EXPRESSLY
DISTURB THAT OR ANY OTHER OF THE BOARD'S FINDINGS.  FOR THE PURPOSES OF
REVIEW HERE, WE WILL ACCEPT THE FINDINGS, AND THERE IS NO CAUSE FOR
THIS COURT TO REVIEW THE EVIDENCE.  UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474, HAS NO APPLICATION IN THE PRESENT POSTURE OF THE
CASE BEFORE US.  THE QUESTIONS THEN PRESENTED ARE WHETHER CONFUSION
BETWEEN THE PARTIES' TRADE NAMES JUSTIFIED A PROCEEDING BY THE BOARD TO
PROTECT THE PUBLIC AND WHETHER THE KIND OF CONFUSION FOUND BY THE BOARD
COULD SUPPORT A CONCLUSION OF A VIOLATION OF THE STATUTE BY
RESPONDENT. 

THIS IS A CASE OF FIRST IMPRESSION UNDER SEC. 411.  THAT SECTION
PROVIDES THAT: 

"THE BOARD MAY, UPON ITS OWN INITIATIVE OR UPON COMPLAINT  ...  IF IT
CONSIDERS THAT SUCH ACTION BY IT WOULD BE IN THE INTEREST OF THE
PUBLIC, INVESTIGATE AND DETERMINE WHETHER ANY AIR CARRIER  ...  HAS
BEEN OR IS ENGAGED IN UNFAIR OR DECEPTIVE PRACTICES OR UNFAIR METHODS
OF COMPETITION IN AIR TRANSPORTATION OR THE SALE THEREOF." 

IF THE BOARD FINDS THAT THE CARRIER IS SO ENGAGED, "IT SHALL ORDER
SUCH AIR CARRIER  ... TO CEASE AND DESIST FROM SUCH PRACTICES OR
METHODS OF COMPETITION."  SECTION 411 WAS MODELED CLOSELY AFTER SEC. 5
OF THE FEDERAL TRADE COMMISSION ACT,* WHICH SIMILARLY PROHIBITS "UNFAIR
METHODS OF COMPETITION IN COMMERCE, AND UNFAIR OR DECEPTIVE ACTS OR
PRACTICES" AND PROVIDES FOR ISSUANCE OF A COMPLAINT "IF IT SHALL APPEAR
TO THE COMMISSION THAT A PROCEEDING BY IT  ...  WOULD BE TO THE
INTEREST OF THE PUBLIC."  38 STAT. 719, AS AMENDED, 15 U.S.C. SEC. 45. 
WE MAY PROFITABLY LOOK TO JUDICIAL INTERPRETATION OF SEC. 5 AS AN AID
IN THE RESOLUTION OF THE QUESTIONS RAISED HERE UNDER SEC. 411. 

*SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
INTERSTATE COMMERCE ON S. 3659, 75TH CONG., 3D SESS. 5; 83 CONG. REC.
6726; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
INTERSTATE COMMERCE ON S. 2 AND S. 1760, 75TH CONG., 1ST SESS., PT. 1,
74. 

IT SHOULD BE NOTED AT THE OUTSET THAT A FINDING AS TO THE "INTEREST
OF THE PUBLIC" UNDER BOTH SEC. 411 AND SEC. 5 IS NOT A PREREQUISITE TO
THE ISSUANCE OF A CEASE AND DESIST ORDER AS SUCH.  RATHER,
CONSIDERATION OF THE PUBLIC INTEREST IS MADE A CONDITION UPON THE
ASSUMPTION OF JURISDICTION BY THE AGENCY TO INVESTIGATE TRADE PRACTICES
AND METHODS OF COMPETITION AND DETERMINE WHETHER OR NOT THEY ARE
UNFAIR.  THUS, THIS COURT HAS HELD THAT, UNDER SEC. 5, THE FEDERAL
TRADE COMMISSION MAY NOT EMPLOY ITS POWERS TO VINDICATE PRIVATE RIGHTS
AND THAT WHETHER OR NOT THE FACTS, ON COMPLAINT OR AS DEVELOPED, SHOW
THE PUBLIC INTEREST TO BE SUFFICIENTLY "SPECIFIC AND SUBSTANTIAL" TO
AUTHORIZE A PROCEEDING BY THE COMMISSION IS A QUESTION SUBJECT TO
JUDICIAL REVIEW.  FEDERAL TRADE COMM'N V. KLESNER, 280 U.S. 19.  SEE
ALSO FEDERAL TRADE COMM'N V. KEPPEL & BRO., INC., 291 U.S. 304; FEDERAL
TRADE COMM'N V. ROYAL MILLING CO., 288 U.S. 212. 

IN THE KLESNER CASE, TWO DISTRICT OF COLUMBIA RETAILERS, WITH A LONG
HISTORY OF ACRIMONIOUS PERSONAL AND BUSINESS RELATIONS, WERE BOTH
OPERATING STORES CALLED THE "SHADE SHOP."  THIS COURT HELD THAT THE
PUBLIC INTEREST MERELY IN RESOLVING THEIR PRIVATE UNFAIR COMPETITION
DISPUTE WOULD NOT JUSTIFY THE COMMISSION IN ISSUING A COMPLAINT.  THE
COURTS OF LAW ARE OPEN TO COMPETITORS FOR THE SETTLEMENT OF THEIR
PRIVATE LEGAL RIGHTS, ONE AGAINST THE OTHER.  THE BOARD, UNDER A
MANDATE FROM CONGRESS, IS CHARGED WITH THE PROTECTION OF THE PUBLIC
INTEREST AS AFFECTED BY PRACTICES OF CARRIERS IN THE FIELD OF AIR
TRANSPORTATION.  IN EXERCISING OUR FUNCTION OF REVIEW OF THE BOARD'S
JURISDICTION TO PROTECT THE PUBLIC INTEREST BY A PROCEEDING WHICH MAY
BE GENERATED FROM FACTS ALSO GIVING RISE TO A PRIVATE DISPUTE, WE MUST
TAKE ACCOUNT OF THE SIGNIFICANT DIFFERENCES BETWEEN SEC. 5 AND SEC.
411.  SECTION 5 IS CONCERNED WITH PURELY PRIVATE BUSINESS ENTERPRISES
WHICH COVER THE FULL SPECTRUM OF ECONOMIC ACTIVITY.  ON THE OTHER HAND,
THE AIR CARRIERS HERE CONDUCT THEIR BUSINESS UNDER A REGULATED SYSTEM
OF LIMITED COMPETITION.  THE BUSINESS SO CONDUCTED IS OF ESPECIAL AND
ESSENTIAL CONCERN TO THE PUBLIC, AS IS TRUE OF ALL COMMON CARRIERS AND
PUBLIC UTILITIES.  FINALLY, CONGRESS HAS COMMITTED THE REGULATION OF
THIS INDUSTRY TO AN ADMINISTRATIVE AGENCY OF SPECIAL COMPETENCE THAT
DEALS ONLY WITH THE PROBLEMS OF THE INDUSTRY. 

THE PRACTICES OF THE COMPETITORS HERE CLASHED IN A FIELD WHERE
CONGRESS WAS SPECIFICALLY CONCERNED TO PROTECT THE PUBLIC INTEREST. 
DEMONSTRATED CONFUSION OF THE PUBLIC AS TO THE ORIGIN OF MAJOR AIR
TRANSPORTATION SERVICES MAY BE OF OBVIOUS NATIONAL PUBLIC CONCERN.  THE
CRITERIA WHICH THE BOARD EMPLOYED TO DETERMINE WHETHER THE CONFUSION
HERE CREATED A PROBLEM OF CONCERN TO THE PUBLIC ARE CONTAINED IN THE
FOLLOWING QUOTATION FROM ITS REPORT: 

"  ...  THE RECORD IS CONVINCING THAT THE PUBLIC INTEREST REQUIRES
THIS ACTION IN ORDER TO PREVENT FURTHER PUBLIC CONFUSION BETWEEN
RESPONDENT AND INTERVENOR DUE TO SIMILARITY OF NAMES.  THE MAINTENANCE
OF HIGH STANDARDS IN DEALING WITH THE PUBLIC IS EXPECTED OF COMMON
CARRIERS, AND THE PUBLIC HAS A RIGHT TO BE FREE OF THE INCONVENIENCES
WHICH FLOW FROM CONFUSION BETWEEN CARRIERS ENGAGING IN THE
TRANSPORTATION OF PERSONS BY AIR.  THE SPEED OF AIR TRAVEL MAY WELL BE
DIMINISHED WHEN PASSENGERS CHECK IN FOR FLIGHTS WITH THE WRONG CARRIER,
OR ATTEMPT TO RETRIEVE BAGGAGE FROM THE WRONG CARRIER, OR ATTEMPT TO
PURCHASE TRANSPORTATION FROM THE WRONG CARRIER, OR DIRECT THEIR
INQUIRIES TO THE WRONG CARRIER.  FRIENDS, RELATIVES OR BUSINESS
ASSOCIATES PLANNING TO MEET PASSENGERS OR SEEKING INFORMATION ON
DELAYED ARRIVALS ARE SUBJECT TO ANNOYANCE OR WORSE WHEN CONFUSED AS TO
THE CARRIER INVOLVED.  THE PROPER HANDLING OF COMPLAINTS FROM MEMBERS
OF THE PUBLIC IS IMPEDED BY CONFUSION AS TO THE CARRIER TO WHOM THE
COMPLAINT SHOULD BE PRESENTED.  THE TRANSPORTATION ITSELF MAY DIFFER
FROM WHAT THE CONFUSED PURCHASER HAD ANTICIPATED (E.G., IN TERMS OF
EQUIPMENT), EVEN THOUGH THE TIME AND PLACE OF ARRIVAL MAY BE ABOUT THE
SAME.  IT IS OBVIOUS THAT PUBLIC CONFUSION BETWEEN AIR CARRIERS
OPERATING BETWEEN THE SAME CITIES IS ADVERSE TO THE PUBLIC INTEREST
...  ."  DOCKET NOS. 5774 AND 5928 (NOV. 4, 1953), 12-13 (MIMEO). 

UNDER SEC. 411 IT IS THE BOARD THAT SPEAKS IN THE PUBLIC INTEREST. 
WE DO NOT SIT TO DETERMINE INDEPENDENTLY WHAT IS THE PUBLIC INTEREST IN
MATTERS OF THIS KIND, COMMITTED AS THEY ARE TO THE JUDGMENT OF THE
BOARD.  WE DECIDE ONLY WHETHER, IN DETERMINING WHAT IS THE PUBLIC
INTEREST, THE BOARD HAS STAYED WITHIN ITS JURISDICTION AND APPLIED
CRITERIA APPROPRIATE TO THAT DETERMINATION.  THE BOARD HAS DONE THAT IN
THE INSTANT CASE.  CONSIDERATIONS OF THE HIGH STANDARDS REQUIRED OF
COMMON CARRIERS IN DEALING WITH THE PUBLIC, CONVENIENCE OF THE
TRAVELING PUBLIC, SPEED AND EFFICIENCY IN AIR TRANSPORT, AND PROTECTION
OF RELIANCE ON A CARRIER'S EQUIPMENT ARE ALL CRITERIA WHICH THE BOARD
IN ITS JUDGMENT MAY PROPERLY EMPLOY TO DETERMINE WHETHER THE PUBLIC
INTEREST JUSTIFIES USE OF ITS POWERS UNDER SEC. 411. 

IT IS ARGUED THAT RESPONDENT'S USE OF THE NAME "NORTH AMERICAN"
CANNOT AMOUNT TO AN UNFAIR OR DECEPTIVE PRACTICE OR AN UNFAIR METHOD OF
COMPETITION AUTHORIZING THE BOARD'S ORDER WITHIN SEC. 411.   "UNFAIR OR
DECEPTIVE PRACTICES OR UNFAIR METHODS OF COMPETITION," AS USED IN SEC.
411, ARE BROADER CONCEPTS THAN THE COMMON-LAW IDEA OF UNFAIR
COMPETITION.  SEE FEDERAL TRADE COMM'N V. KEPPEL & BRO., INC., SUPRA;
FEDERAL TRADE COMM'N V. RALADAM CO., 283 U.S. 643, 648.  THE SECTION IS
CONCERNED NOT WITH PUNISHMENT OF WRONGDOING OR PROTECTION OF INJURED
COMPETITORS, BUT RATHER WITH PROTECTION OF THE PUBLIC INTEREST.  SEE
FEDERAL TRADE COMM'N V. KLESNER, SUPRA, AT 27-28.  THE COURTS HAVE
HELD, IN CONSTRUING SEC. 5 OF THE TRADE COMMISSION ACT, THAT THE USE OF
A TRADE NAME THAT IS SIMILAR TO THAT OF A COMPETITOR, WHICH HAS THE
CAPACITY TO CONFUSE OR DECEIVE THE PUBLIC, MAY BE PROHIBITED BY THE
COMMISSION.  FEDERAL TRADE COMM'N V. ALGOMA LUMBER CO., 291 U.S. 67;
JUVENILE SHOE CO. V. FEDERAL TRADE COMM'N, 289 F. 57.  AND SEE PEP BOYS
- MANNY, MOE & JACK, INC. V. FEDERAL TRADE COMM'N, 122 F.2D 158, WHERE
THE CONFUSING NAME WAS NOT THAT OF ANY COMPETITOR.  THE BOARD FOUND
THAT RESPONDENT KNOWINGLY ADOPTED A TRADE NAME THAT MIGHT WELL CAUSE
CONFUSION.  BUT IT MADE NO FINDINGS THAT THE USE OF THE NAME WAS
INTENTIONALLY DECEPTIVE OR FRAUDULENT OR THAT THE COMPETITOR, AMERICAN
AIRLINES, WAS INJURED THEREBY.  SUCH FINDINGS ARE NOT REQUIRED OF THE
TRADE COMMISSION UNDER SEC. 5, AND THERE IS NO REASON TO REQUIRE THEM
OF THE CIVIL AERONAUTICS BOARD UNDER SEC. 411.  FEDERAL TRADE COMM'N V.
ALGOMA LUMBER CO., SUPRA, AT 81; EUGENE DIETZGEN CO. V. FEDERAL TRADE
COMM'N, 142 F.2D 321, 327; D.D.D. CORP. V. FEDERAL TRADE COMM'N, 125
F.2D 679, 682; GIMBEL BROS., INC. V. FEDERAL TRADE COMM'N, 116 F.2D
578, 579; FEDERAL TRADE COMM'N V. BALME, 23 F.2D 615, 621.  SEE ALSO S.
REP. NO. 221, 75TH CONG., 1ST SESS. 2. 

THE BOARD HAD JURISDICTION TO INQUIRE INTO THE METHODS OF COMPETITION
PRESENTED HERE, AND ITS EVIDENTIARY FINDINGS CONCERNED CONFUSION OF THE
TYPE WHICH CAN SUPPORT A FINDING OF VIOLATION OF SEC. 411.  THE
JUDGMENT OF THE COURT OF APPEALS MUST THEREFORE BE REVERSED.  HOWEVER,
SINCE WE DO NOT UNDERSTAND THE COURT TO HAVE DECIDED WHETHER THE
BOARD'S FINDINGS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD
AS A WHOLE, THE CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER
PROCEEDINGS IN THE LIGHT OF THIS OPINION.  REVERSED AND REMANDED. 
MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED CONCURS, DISSENTING. 

THE COURT DECIDES THAT A FINDING OF "SUBSTANTIAL PUBLIC CONFUSION"
RESULTING FROM RESPONDENT CARRIER'S USE OF THE NAME "NORTH AMERICAN"
CONSTITUTES A VIOLATION OF SEC.  411 OF THE CIVIL AERONAUTICS ACT, 52
STAT. 1003, AS AMENDED, 66 STAT. 628, 49 U.S.C.  SEC. 491. 

IF THE COURT HELD THAT THE PUBLIC CONFUSION MUST BE SUBSTANTIAL
ENOUGH TO IMPAIR - OR IMMINENTLY THREATEN TO IMPAIR - THE EFFICIENCY OF
AIR SERVICE, I WOULD AGREE.  THAT CONSTRUCTION WOULD GIVE PRACTICAL
CONTENT TO THE PHRASE "SUBSTANTIAL PUBLIC CONFUSION."  THE COURT,
HOWEVER, DOES NOT REQUIRE A BOARD FINDING THAT THE CONFUSION HAS
DIMINISHED THE EFFICIENCY OF AIR SERVICE.  THERE IS, INDEED, NO SUCH
FINDING BY THE BOARD IN THIS CASE.  THERE IS ONLY A NAKED FINDING OF
"SUBSTANTIAL PUBLIC CONFUSION" AND THAT SUCH CONFUSION IS "LIKELY TO
CONTINUE."  THERE IS NO FINDING THAT ANY FLIGHT WAS DELAYED BECAUSE A
PASSENGER WAS CONFUSED; THERE IS NO FINDING THAT ANY PASSENGER MISSED
HIS PLANE BECAUSE OF CHECKING IN AT THE WRONG TICKET COUNTER; THERE IS
NO FINDING THAT A CONFUSED PASSENGER BOARDED THE WRONG PLANE. 

THE BOARD CONCEDED THAT ITS ORDER REQUIRING RESPONDENT TO CEASE AND
DESIST FROM USING THE NAME "NORTH AMERICAN" WAS "A SERIOUS SANCTION
WHICH NECESSARILY INVOLVES DISTURBANCE AND LOSS TO THE CARRIER  ...  .
THE MAINTENANCE OF HIGH STANDARDS IN DEALING WITH THE PUBLIC IS
EXPECTED OF COMMON CARRIERS, AND THE PUBLIC HAS A RIGHT TO BE FREE OF
THE INCONVENIENCES WHICH FLOW FROM CONFUSION BETWEEN CARRIERS ENGAGING
IN THE TRANSPORTATION OF PERSONS BY AIR.  THE SPEED OF AIR TRAVEL MAY
WELL BE DIMINISHED WHEN PASSENGERS CHECK IN FOR FLIGHTS WITH THE WRONG
CARRIER, OR ATTEMPT TO RETRIEVE BAGGAGE FROM THE WRONG CARRIER, OR
ATTEMPT TO PURCHASE TRANSPORTATION FROM THE WRONG CARRIER, OR DIRECT
THEIR INQUIRIES TO THE WRONG CARRIER."  DOCKET NOS. 5774 AND 5928 (NOV.
4, 1953), 12-13 (MIMEO). 

I WOULD NOT PERMIT THE BOARD TO FIND A VIOLATION OF SEC. 411 SO
EASILY.  WE SHOULD REQUIRE A FINDING THAT THE CONFUSION HAS ACTUALLY
CAUSED SOME IMPAIRMENT OF AIR SERVICE OR THAT AT LEAST THERE IS AN
IMMINENT THREAT OF SUCH IMPAIRMENT.  CERTAINLY THE TYPE OF CONFUSION
FOUND HERE "MAY WELL" DIMINISH THE SPEED OF AIR TRAVEL - IF IT GROWS TO
SUCH MAJOR PROPORTIONS THAT FLIGHTS ARE DELAYED AND PASSENGERS BEGIN
MISSING FLIGHTS OR BOARDING THE WRONG PLANES.  BUT IT IS MERE
CONJECTURE THAT THAT WILL EVER HAPPEN AS A RESULT OF RESPONDENT'S USE
OF THE NAME "NORTH AMERICAN."  THE TYPE AND EXTENT OF PUBLIC CONFUSION
FOUND BY THE BOARD HERE WOULD PROBABLY ALSO BE FOUND IF THE BOARD
CONDUCTED A SIMILAR INQUIRY INTO PASSENGER CONFUSION BETWEEN PAN
AMERICAN AND AMERICAN AIRLINES.  IT WOULD ALSO BE SURPRISING IF THE
BOARD COULD NOT FIND SIMILAR CONFUSION BETWEEN EASTERN AND NORTHEAST
AIRLINES, WESTERN AND NORTHWEST AIRLINES, OR, IF THE BOARD HAD
JURISDICTION IN THE RAILROAD INDUSTRY, AMONG NORTHERN PACIFIC, UNION
PACIFIC, WESTERN PACIFIC AND SOUTHERN PACIFIC.  AS THE DISSENTING
MEMBER OF THE BOARD SAID: 

"SINCE AMERICAN AIRLINES, INC., CARRIES APPROXIMATELY 5 1/2 MILLION
PASSENGERS EACH YEAR OVER ITS SYSTEM, I AM NOT IMPRESSED WITH THE FACT
THAT WITNESSES IN THIS CASE (PRINCIPALLY THOSE EMPLOYED BY AMERICAN
AIRLINES ITSELF) HAVE TESTIFIED THAT SOME CONFUSION HAS EXISTED BETWEEN
THE SERVICES OFFERED BY AMERICAN, ON THE ONE HAND, AND NORTH AMERICAN
ON THE OTHER.  ON THE CONTRARY, I WOULD BE GREATLY SURPRISED, (IN VIEW
OF THE SEVERAL MILLION PHONE CALLS AND OTHER COMMUNICATIONS WHICH
AMERICAN AIRLINES RECEIVES EVERY YEAR OVER AND ABOVE THOSE RECEIVED
FROM PASSENGERS WHICH IT ACTUALLY CARRIES) IF THERE WERE NOT SOME
DEMONSTRABLE PUBLIC CONFUSION BETWEEN AMERICAN AIRLINES AND THE
RESPONDENT IN THIS CASE."  ID., AT 1-2 (DISSENTING OPINION). 

THE COURT RELIES ON THE CASES ARISING UNDER SEC. 5 OF THE FEDERAL
TRADE COMMISSION ACT, 38 STAT. 719, AS AMENDED, 15 U.S.C. SEC. 45. 
FEDERAL TRADE COMM'N V. ALGOMA LUMBER CO., 291 U.S. 67; JUVENILE SHOE
CO. V. FEDERAL TRADE COMM'N, 289 F. 57; PEP BOYS V. FEDERAL TRADE
COMM'N, 122 F.2D 158.  THOSE CASES ARE QUITE DIFFERENT.  IN EACH THE
COMMISSION MADE MORE THAN A BALD FINDING OF "SUBSTANTIAL PUBLIC
CONFUSION."  IT FOUND, IN THE ALGOMA LUMBER CASE, THAT A SUBSTANTIAL
NUMBER OF PURCHASERS HAD BEEN MISLED INTO BUYING SOMETHING OTHER THAN
WHAT THEY THOUGHT THEY WERE BUYING.  291 U.S., AT 72.  IN THE JUVENILE
SHOE CASE, THE COMPETITOR TOOK A NAME SO SIMILAR ("JUVENILE SHOE
CORPORATION" AND "JUVENILE SHOE COMPANY, INC.") THAT CONFUSION IN THE
PUBLIC MIND WAS "INEVITABLE."  289 F., AT 58.  AND THE COMMISSION MADE
A FINDING THAT THE USE OF THE WORD "JUVENILE" CAUSED CONFUSION AND LED
PURCHASERS TO BELIEVE THAT THE GOODS OF ONE COMPANY WERE THE GOODS OF
THE OTHER COMPANY.  ID., AT 59.  IN THE PEP BOYS CASE, THE COURT
APPROVED THE FOLLOWING TEST:  "  ...  WHETHER THE NATURAL AND PROBABLE
RESULT OF THE USE BY PETITIONER OF THE NAME  ...  MAKES THE AVERAGE
PURCHASER UNWITTINGLY, UNDER ORDINARY CONDITIONS PURCHASE THAT WHICH HE
DID NOT INTEND TO BUY."  122 F.2D, AT 161. 

THERE ARE NO SIMILAR FINDINGS IN THE INSTANT CASE.  THERE IS NO
FINDING HERE THAT A PASSENGER BOUGHT A NORTH AMERICAN TICKET AND FLEW
NORTH AMERICAN UNDER THE MISTAKEN BELIEF THAT HE WAS FLYING AMERICAN. 
THERE IS NO FINDING THAT ANY PASSENGER MISSED A PLANE BECAUSE OF THE
CONFUSION.  IF PASSENGERS MISTAKENLY BOUGHT NORTH AMERICAN SERVICE,
BELIEVING IT TO BE AMERICAN, A FINDING OF UNFAIR OR DECEPTIVE PRACTICES
OR UNFAIR METHODS OF COMPETITION UNDER SEC. 411 WOULD BE JUSTIFIED. 
THAT IS A TYPE OF PUBLIC CONFUSION QUITE DIFFERENT FROM THE CONFUSION
FOUND IN THIS CASE - REPORTING TO THE WRONG TICKET COUNTER OR
ATTEMPTING TO RETRIEVE BAGGAGE FROM THE WRONG CARRIER.  BY ANALOGY TO
THE SEC. 5 CASES, WE HAVE HERE A SITUATION WHERE A FEW PROSPECTIVE
PURCHASERS WALKED INTO THE WRONG STORE, BUT NEVER MADE ANY PURCHASES
THERE. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :














SCHULZ V. PENNSYLVANIA RAILROAD CO. 350 U.S. 523 


NO. 282.  ARGUED MARCH 27-28, 1956 - DECIDED APRIL 9, 1956 - 222 F.2D
540, REVERSED. 


ON THE RECORD IN THIS CASE, A SUIT UNDER THE JONES ACT TO RECOVER FOR
THE DEATH OF A TUGBOAT FIREMAN WHO DISAPPEARED WHILE WORKING AT NIGHT
ON FOUR UNLIGHTED, ICY AND UNDERMANNED TUGBOATS AND WHOSE DROWNED BODY
WAS FOUND LATER PARTLY CLOTHED AND CLUTCHING A FLASHLIGHT, THE EVIDENCE
WAS SUFFICIENT TO GO TO THE JURY ON THE ISSUES OF WHETHER RESPONDENT
WAS NEGLIGENT IN FAILING TO PROVIDE THE DECEASED WITH A SAFE PLACE TO
WORK AND WHETHER SUCH NEGLIGENCE WAS THE PROXIMATE CAUSE OF HIS DEATH;
AND THE TRIAL COURT ERRED IN DIRECTING A VERDICT FOR RESPONDENT.  PP.
523-527. 

SCHULZ, ADMINISTRATRIX V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER BROUGHT THIS SUIT FOR DAMAGES UNDER THE JONES ACT,
(FN1) ALLEGING THAT HER HUSBAND WHILE EMPLOYED BY THE RESPONDENT
RAILROAD AS A TUG FIREMAN WAS DROWNED BECAUSE OF THE NEGLIGENT FAILURE
OF RESPONDENT TO PROVIDE HIM WITH A SAFE PLACE TO WORK.  THE DISTRICT
JUDGE DIRECTED THE JURY TO RETURN A VERDICT FOR THE DEFENDANT, STATING,
"THERE IS SOME EVIDENCE OF NEGLIGENCE, AND THERE IS AN ACCIDENTAL
DEATH.  BUT THERE IS NOT A SHRED OF EVIDENCE CONNECTING THE TWO."  THE
COURT OF APPEALS AFFIRMED, SAYING THAT WHILE THE EVIDENCE WAS "PERHAPS
AT MOST ONLY DOUBTFULLY SUFFICIENT TO PRESENT A JURY QUESTION AS TO
DEFENDANT'S BREACH OF DUTY" IT FAILED TO SHOW "WHERE THE ACCIDENT
OCCURRED" OR "THAT IT WAS PROXIMATELY CAUSED BY ANY DEFAULT ON THE PART
OF THE DEFENDANT."  (FN2) 

THE JURY TRIAL "IS PART AND PARCEL OF THE REMEDY AFFORDED RAILROAD
WORKERS UNDER THE EMPLOYERS LIABILITY ACT," WHICH THE JONES ACT MAKES
APPLICABLE TO THOSE WORKING AS PETITIONER'S HUSBAND WAS HERE.  (FN3)
THE SEVENTH AMENDMENT TO THE CONSTITUTION PROVIDES THAT "THE RIGHT OF
TRIAL BY JURY SHALL BE PRESERVED, AND NO FACT TRIED BY A JURY, SHALL BE
OTHERWISE RE-EXAMINED IN ANY COURT OF THE UNITED STATES, THAN ACCORDING
TO THE RULES OF THE COMMON LAW."  (FN4)  WE GRANTED CERTIORARI TO
CONSIDER THE FAILURE OF THE DISTRICT COURT TO LET THIS CASE GO TO THE
JURY.  350 U.S. 882. 

WHILE SOME FACTS WERE IN DISPUTE THERE WAS EVIDENCE FROM WHICH A JURY
COULD HAVE FOUND:  ON CHRISTMAS DAY 1949, AT ABOUT 5:15 P.M., THE
DECEASED, SCHULZ, REPORTED FOR WORK ON HIS JOB AT PIER H, JERSEY CITY,
NEW JERSEY, AND WAS ASSIGNED TO WORK ON FOUR TUGBOATS DOCKED SIDE BY
SIDE THERE.  HE WENT IMMEDIATELY TO CHECK THE BOATS WITHOUT WAITING TO
CHANGE FROM HIS STREET TO HIS WORKING CLOTHES.  RETURNING TO THE PIER
ALONGSIDE THE TUGS ABOUT SEVEN O'CLOCK, SCHULZ REPORTED THAT HE HAD
FINISHED HIS CHECKING AND WAS NOW GOING BACK TO THE BOATS TO CHANGE TO
HIS WORK CLOTHES AND PROCEED WITH HIS OTHER DUTIES THERE.  HE WAS LAST
SEEN ALIVE WALKING IN THE DIRECTION OF THE NEAREST TUG.  AT 1:25 A.M.,
A SUPERVISOR FOUND SCHULZ WAS NOT ON THE BOATS.  HIS STREET CLOTHES
WERE HANGING IN THE UPPER ENGINE ROOM WHERE THE TUG ATTENDANTS USUALLY
CHANGED CLOTHES.  HIS LUNCH PACKAGE WAS ALSO THERE.  THREE OF THE TUGS
WERE AT ALL TIMES WHOLLY UNLIGHTED AND DARK; ONE WAS PARTIALLY
ILLUMINATED BY SPOTLIGHTS FROM THE PIER.  THE NIGHT WAS COLD - 10 ABOVE
ZERO - AND THERE WAS SOME ICE ON THE TUGS.  BECAUSE THE COMPANY DID NOT
HAVE ENOUGH WORKERS THAT NIGHT PROPERLY TO PERFORM THE DUTIES THAT WERE
REQUIRED SCHULZ HAD TO TRY TO TAKE CARE OF ALL FOUR TUGS BY HIMSELF. 
TO DO THIS HE HAD TO STEP FROM ONE BOAT TO ANOTHER IN THE DARK EXCEPT
FOR SUCH LIMITED ILLUMINATION AS HE COULD OBTAIN FROM A FLASHLIGHT. 
SEVERAL WEEKS AFTER SCHULZ DISAPPEARED FROM THE BOATS HIS BODY WAS
FOUND IN THE WATER NEAR AN ADJACENT PIER.  HE WAS CLOTHED IN NOTHING
BUT SHORTS AND SOCKS.  A FLASHLIGHT WAS IN HIS HAND.  HE HAD DROWNED. 
IT IS CONCEDED THAT THE DECEASED WAS NOT UNDER THE INFLUENCE OF ALCOHOL
WHEN HE CAME TO THE BOAT, THAT HE DID NOT COMMIT SUICIDE, THAT THERE
WAS NO FOUL PLAY, AND THAT HE MET HIS DEATH BY ACCIDENT.  THE EVIDENCE
SHOWED THAT HE WAS A CAPABLE AND EXPERIENCED WORKMAN WHO HAD BEEN
EMPLOYED BY THE DEFENDANT FOR SEVERAL YEARS. 

IN CONSIDERING THE SCOPE OF THE ISSUES ENTRUSTED TO JURIES IN CASES
LIKE THIS, IT MUST BE BORNE IN MIND THAT NEGLIGENCE CANNOT BE
ESTABLISHED BY DIRECT, PRECISE EVIDENCE SUCH AS CAN BE USED TO SHOW
THAT A PIECE OF GROUND IS OR IS NOT AN ACRE.  SURVEYORS CAN MEASURE AN
ACRE.  BUT MEASURING NEGLIGENCE IS DIFFERENT.  THE DEFINITIONS OF
NEGLIGENCE ARE NOT DEFINITIONS AT ALL, STRICTLY SPEAKING.  USUALLY ONE
DISCUSSING THE SUBJECT WILL SAY THAT NEGLIGENCE CONSISTS OF DOING THAT
WHICH A PERSON OF REASONABLE PRUDENCE WOULD NOT HAVE DONE, OR OF
FAILING TO DO THAT WHICH A PERSON OF REASONABLE PRUDENCE WOULD HAVE
DONE UNDER LIKE CIRCUMSTANCES.  ISSUES OF NEGLIGENCE, THEREFORE, CALL
FOR THE EXERCISE OF COMMON SENSE AND SOUND JUDGMENT UNDER THE
CIRCUMSTANCES OF PARTICULAR CASES.  "WE THINK THESE ARE QUESTIONS FOR
THE JURY TO DETERMINE.  WE SEE NO REASON, SO LONG AS THE JURY SYSTEM IS
THE LAW OF THE LAND, AND THE JURY IS MADE THE TRIBUNAL TO DECIDE
DISPUTED QUESTIONS OF FACT, WHY IT SHOULD NOT DECIDE SUCH QUESTIONS AS
THESE AS WELL AS OTHERS."  JONES V. EAST TENNESSEE, V.& G.R. CO., 128
U.S. 443, 445 (1888). 

IN THIS CASE PETITIONER IS ENTITLED TO RECOVER IF HER HUSBAND'S DEATH
RESULTED "IN WHOLE OR IN PART" (FN5) FROM DEFENDANT'S NEGLIGENCE.  FAIR
MINDED MEN COULD CERTAINLY FIND FROM THE FOREGOING FACTS THAT DEFENDANT
WAS NEGLIGENT IN REQUIRING SCHULZ TO WORK ON THESE DARK, ICY AND
UNDERMANNED BOATS.  AND REASONABLE MEN COULD ALSO FIND FROM THE
DISCOVERY OF SCHULZ'S HALF-ROBED BODY WITH A FLASHLIGHT GRIPPED IN HIS
HAND THAT HE SLIPPED FROM AN UNLIGHTED TUG AS HE GROPED ABOUT IN THE
DARKNESS ATTEMPTING TO PERFORM HIS DUTIES.  (FN6)  BUT THE COURTS BELOW
TOOK THIS CASE FROM THE JURY BECAUSE OF A POSSIBILITY THAT SCHULZ MIGHT
HAVE FALLEN ON A PARTICULAR SPOT WHERE THERE HAPPENED TO BE NO ICE, OR
THAT HE MIGHT HAVE FALLEN FROM THE ONE BOAT THAT WAS PARTIALLY
ILLUMINATED BY SHORE LIGHTS.  DOUBTLESS THE JURY COULD HAVE SO FOUND
(HAD THE COURT ALLOWED IT TO PERFORM ITS FUNCTION) BUT IT WOULD NOT
HAVE BEEN COMPELLED TO DRAW SUCH INFERENCES.  (FN7)  FOR "THE VERY
ESSENCE OF ITS FUNCTION IS TO SELECT FROM AMONG CONFLICTING INFERENCES
AND CONCLUSIONS THAT WHICH IT CONSIDERS MOST REASONABLE."  (FN8)  FACT
FINDING DOES NOT REQUIRE MATHEMATICAL CERTAINTY.  (FN9)  JURORS ARE
SUPPOSED TO REACH THEIR CONCLUSIONS ON THE BASIS OF COMMON SENSE,
COMMON UNDERSTANDING AND FAIR BELIEFS, GROUNDED ON EVIDENCE CONSISTING
OF DIRECT STATEMENTS BY WITNESSES OR PROOF OF CIRCUMSTANCES FROM WHICH
INFERENCES CAN FAIRLY BE DRAWN. 

WE THINK THE EVIDENCE WAS SUFFICIENT TO REQUIRE SUBMISSION OF THE
CASE TO THE JURY, AND THAT IT WAS ERROR NOT TO DO SO.  REVERSED. 

FN1  41 STAT. 1007, 46 U.S.C. SEC. 688. 

FN2  222 F.2D 540, 541. 

FN3  BAILEY V. CENTRAL VERMONT R. CO., 319 U.S. 350, 354. 

FN4 FOR A DISCUSSION OF THE RIGHT TO TRIAL BY JURY UNDER THE SEVENTH
AMENDMENT SEE GALLOWAY V. UNITED STATES, 319 U.S. 372, AND CASES THERE
CITED. 

FN5  53 STAT. 1404, 45 U.S.C. SEC. 51; 41 STAT. 1007, 46 U.S.C. SEC.
688. 

FN6  CF. SADLER V. PENNSYLVANIA R. CO., 159 F.2D 784. 

FN7  JOHNSON V. UNITED STATES, 333 U.S. 46. 

FN8  TENNANT V. PEORIA & P.U.R. CO., 321 U.S. 29, 35.  CONVERSELY,
"IT IS NOT THE FUNCTION OF A COURT TO SEARCH THE RECORD FOR CONFLICTING
CIRCUMSTANTIAL EVIDENCE IN ORDER TO TAKE THE CASE AWAY FROM THE JURY ON
A THEORY THAT THE PROOF GIVES EQUAL SUPPORT TO INCONSISTENT AND
UNCERTAIN INFERENCES."  IBID. 

FN9  LAVENDER V. KURN, 327 U.S. 645, 653. 

MR. JUSTICE REED, MR. JUSTICE BURTON AND MR. JUSTICE MINTON DISSENT. 

MR. JUSTICE FRANKFURTER. 

CONSIDERATIONS THAT I HAVE HERETOFORE SPELLED OUT GOVERN ME IN THE
CONVICTION THAT THE WRIT IN THIS CASE SHOULD BE DISMISSED AS
IMPROVIDENTLY GRANTED.  MCALLISTER V. UNITED STATES, 348 U.S. 19, 23;
CARTER V. ATLANTA & ST. A.B.R. CO., 338 U.S. 430, 437; CAHILL V. NEW
YORK, N.H.& H.R. CO., 350 U.S. 898; ANDERSON V. ATLANTIC COAST LINE R.
CO., 350 U.S. 807; SWAFFORD V. ATLANTIC COAST LINE R. CO., 350 U.S.
807; MOORE V. CHESAPEAKE & O.R. CO., 340 U.S. 573, 578; AFFOLDER V. NEW
YORK, C. & ST. L.R. CO., 339 U.S. 96, 101; SEE FRANKFURTER AND LANDIS,
THE BUSINESS OF THE SUPREME COURT, 206 ET SEQ.
..END :






COLLINS V. AMERICAN BUSLINES, INC. 350 U.S. 528 


NO. 523.  ARGUED MARCH 29, 1956 - DECIDED APRIL 9, 1956 - 79 ARIZ. 220,
286 P.2D 214, REVERSED AND REMANDED. 


THE WIDOW AND CHILD OF A BUS DRIVER APPLIED FOR COMPENSATION UNDER THE
ARIZONA WORKMEN'S COMPENSATION ACT FOR HIS ACCIDENTAL DEATH WHILE
DRIVING AN INTERSTATE BUS IN ARIZONA.  HE WAS A RESIDENT OF CALIFORNIA
AND WAS COVERED BY THE CALIFORNIA WORKMEN'S COMPENSATION ACT.  THE BUS
LINE OPERATED EXCLUSIVELY IN INTERSTATE COMMERCE AND WAS NOT INSURED IN
ARIZONA.  HELD:  THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION DID
NOT PRECLUDE ARIZONA FROM AWARDING COMPENSATION, EVEN IF THE EFFECT
WERE TO FORCE THE BUS LINE TO OBTAIN INSURANCE AGAINST LIABILITIES
ARISING IN ARIZONA.  PP. 528-531. 

COLLINS ET AL. V. AMERICAN BUSLINES, INC. ET AL. 

CERTIORARI TO THE SUPREME COURT OF ARIZONA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ADOLPHUS HENRY COLLINS WAS KILLED IN AN ACCIDENT NEAR EHRENBURG,
ARIZONA, ON SEPTEMBER 30, 1953.  THE ACCIDENT RESULTED FROM THE BLOWOUT
OF A TIRE ON AN AMERICAN BUSLINES' VEHICLE WHICH COLLINS WAS DRIVING ON
A REGULAR RUN FROM PHOENIX TO LOS ANGELES.  COLLINS HAD BEEN EMPLOYED
AS A BUS DRIVER FOR AMERICAN SINCE 1944.  HE HAD DONE HIS DRIVING ON
VARIOUS ROUTES IN THE SOUTHWEST, AND FROM 1952 UNTIL THE TIME OF HIS
DEATH HE WAS REGULARLY EMPLOYED ON THE LOS ANGELES TO PHOENIX AND
RETURN ROUTE.  HE AND HIS WIFE AND MINOR CHILD - THE PETITIONERS IN
THIS PROCEEDING - MADE THEIR HOME IN LOS ANGELES, CALIFORNIA, IN WHICH
STATE COLLINS WAS COVERED BY WORKMEN'S COMPENSATION. 

PETITIONERS APPLIED ON OCTOBER 14, 1953, TO THE INDUSTRIAL COMMISSION
OF ARIZONA FOR COMPENSATION IN ACCORDANCE WITH THE TERMS OF THE ARIZONA
WORKMEN'S COMPENSATION ACT.  IN AN AWARD DATED NOVEMBER 30, 1953, THAT
AGENCY MADE, INTER ALIA, THE FOLLOWING FINDINGS: 

"THAT THE DEFENDANT EMPLOYER MAINTAINED WORKMEN'S COMPENSATION
COVERAGE IN THE STATE OF CALIFORNIA AND THAT PAYROLL PREMIUM ON THE
SAID ADOLPHUS HENRY COLLINS WAS REPORTED TO THE STATE OF CALIFORNIA. 
THAT NO REPORTING OF SUCH WAS MADE AT ANY TIME TO THE INDUSTRIAL
COMMISSION OF ARIZONA. 

"THAT THE SAID ADOLPHUS HENRY COLLINS, AT THE TIME OF HIS DEATH, WAS
NOT REGULARLY EMPLOYED IN THE STATE OF ARIZONA AS SAID TERM HAS BEEN
DEFINED BY THE SUPREME COURT OF ARIZONA IN THE CASE OF INDUSTRIAL
COMMISSION VS. WATSON BROTHERS TRANSPORTATION COMPANY, (75 ARIZ. 357,
256 P.2D 730)."* 

*SECTION 56-928 OF THE ARIZONA CODE ANNOTATED, 1939 (CUM. SUPP.
1952), PROVIDES: 

"EMPLOYERS SUBJECT TO THE PROVISIONS OF THIS ARTICLE ARE:  ...  3. 
EVERY PERSON WHO HAS IN HIS EMPLOY THREE (3) OR MORE WORKMEN OR
OPERATIVES REGULARLY EMPLOYED  ...  .  FOR THE PURPOSES OF THIS SECTION
'REGULARLY EMPLOYED' INCLUDES ALL EMPLOYMENTS, WHETHER CONTINUOUS
THROUGHOUT THE YEAR, OR FOR ONLY A PORTION OF THE YEAR, IN THE USUAL
TRADE, BUSINESS, PROFESSION, OR OCCUPATION OF AN EMPLOYER." 

"THAT THE INDUSTRIAL COMMISSION OF ARIZONA DOES NOT HAVE JURISDICTION
IN THE PREMISES, AND THAT SAID  ...  CLAIM ON FILE HEREIN SHOULD BE
DENIED FOR LACK OF JURISDICTION." 

ON CERTIORARI TO THE SUPREME COURT OF ARIZONA, THE CONSTRUCTION OF
THE ARIZONA STATUTE ON WHICH THE COMMISSION BASED ITS AWARD WAS
REJECTED, BUT ITS DISPOSITION OF PETITIONERS' CLAIM WAS AFFIRMED. 
AFTER CONCLUDING THAT AMERICAN BUSLINES "OPERATED EXCLUSIVELY IN
INTERSTATE COMMERCE," THE COURT HELD THAT THE COMMERCE CLAUSE OF THE
UNITED STATES CONSTITUTION PRECLUDED RECOVERY UNDER THE ARIZONA
WORKMEN'S COMPENSATION ACT BECAUSE COLLINS WAS COVERED BY THE
CALIFORNIA STATUTE, AND TO REQUIRE HIS INTERSTATE EMPLOYER TO INSURE
ALSO IN ARIZONA WOULD PLACE AN UNDUE BURDEN ON INTERSTATE COMMERCE.  79
ARIZ. 220, 286 P.2D 214.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANT FEDERAL QUESTION THUS PRESENTED.  350 U.S. 931. 

THE ONLY RESPONDENT HERE IS THE ARIZONA INDUSTRIAL COMMISSION.  IT IS
NOT AT ALL CLEAR FROM THE RECORD BEFORE US WHAT THE INTEREST OF THE
STATE AGENCY IS IN THIS LITIGATION.  IF THE EMPLOYER WERE ACTIVELY
BEFORE THE COURT, IT COULD CLAIM, WE ASSUME, THAT AN AWARD IN THE
CIRCUMSTANCES OF THE PRESENT CASE BURDENS THE INTERSTATE COMMERCE IN
THAT THE CONSEQUENCES OF SUCH AN AWARD WOULD BE TO REQUIRE IT IN THE
FUTURE TO OBTAIN INSURANCE SUFFICIENTLY COMPREHENSIVE TO COVER
POTENTIAL AWARDS IN THE VARIOUS STATES THROUGH WHICH IT PASSES.  THE
APPARENT INTEREST OF THE COMMISSION IS DIFFERENT, NAMELY, THAT AS A
RESULT OF AN AWARD IN THIS CASE, INTERSTATE CARRIERS WILL SEEK
INSURANCE FROM A SINGLE PRIVATE INSURANCE CARRIER CAPABLE OF GIVING
COVERAGE IN ALL STATES THROUGH WHICH THEY RUN.  THE DESIRE BY
INTERSTATE CARRIERS FOR SUCH INSURANCE WILL CAUSE A DEFECTION FROM THE
STATE COMPENSATION FUND, AND IT IS THIS POTENTIAL DEFECTION WHICH LEADS
TO THE COMMISSION'S CLAIM THAT THE ARIZONA ACT CANNOT BE APPLICABLE IN
AN INTERSTATE SITUATION.  BUT THIS ASSERTED BURDEN UPON INTERSTATE
COMMERCE - THE DISADVANTAGEOUS EFFECT UPON THE STATE COMPENSATION FUND
IS TOO INTANGIBLE AND ELUSIVE TO BE DEEMED A CONSTITUTIONALLY
DISALLOWABLE BURDEN. 

WE HAVE BEEN ADVISED, HOWEVER, THAT AMERICAN BUSLINES HAS BEEN A NON
PARTICIPATING DEFENDANT THROUGHOUT THIS LITIGATION; THAT IT IS IN
RECEIVERSHIP IN NEBRASKA; THAT AN ORDER HAS BEEN ISSUED BY THE NEBRASKA
COURT BARRING CLAIMS AGAINST IT EXCEPT IN THAT COURT; AND THAT
PETITIONERS' CLAIM IS AGAINST THE STATE COMPENSATION FUND, ADMINISTERED
BY THE INDUSTRIAL COMMISSION, WHICH WILL IN A SEPARATE PROCEEDING BE
PUT TO SUCH RECOURSE AS IT MAY HAVE AGAINST AMERICAN BUSLINES.  THIS IS
NOT CONTROVERTED.  THE COMMISSION, THEREFORE, APPEARS TO HAVE AN
IMMEDIATE INTEREST OF THE SAME CHARACTER AND EXTENT THAT AMERICAN
BUSLINES WOULD HAVE WERE IT HERE.  THUS, THE COMMISSION CAN INVOKE THE
EMPLOYER'S CLAIM UNDER THE COMMERCE CLAUSE.  BUT THAT CLAIM - OF AN
INCREASED INSURANCE BURDEN IMPOSED AS A PRACTICAL MATTER UPON AN
INTERSTATE CARRIER - WHILE PERHAPS LESS TENUOUS THAN THE DEFECTION
ARGUMENT DIRECTLY PERTINENT TO THE COMMISSION'S CASE, IS HARDLY MORE
SUBSTANTIAL.  WHATEVER DOLLARS-AND-CENTS BURDEN AN EVENTUAL JUDGMENT
FOR CLAIMANTS IN THE POSITION OF PETITIONERS MAY CAST EITHER UPON A
CARRIER OR THE STATE'S FUND IS INSUFFICIENT, COMPARED WITH THE INTEREST
OF THE STATE IN AFFORDING REMEDIES FOR INJURIES COMMITTED WITHIN ITS
BOUNDARIES, SEE CARROLL V. LANZA, 349 U.S. 408, TO DISLODGE STATE
POWER.  THE STATE'S POWER IS NOT DISLODGED SO LONG AS THE FEDERAL
GOVERNMENT HAS NOT TAKEN OVER THE FIELD OF REMEDIES FOR INJURIES OF
EMPLOYEES ON INTERSTATE BUSES AS IT HAS DONE IN THE CASE OF EMPLOYEES
OF INTERSTATE RAILROAD CARRIERS.  NEW YORK CENTRAL R. CO. V. WINFIELD,
244 U.S. 147. 

THE COURT BELOW AND THE COMMISSION HERE RELY ON SOUTHERN PACIFIC CO.
V. ARIZONA, 325 U.S. 761.  IT IS TOO SLENDER A REED.  TWO LESS SIMILAR
SITUATIONS, IN WHICH SHELTER FROM AN EXERCISE OF STATE POWER IS SOUGHT
UNDER THE COMMERCE CLAUSE, WOULD BE DIFFICULT TO FIND THAN THAT
PRESENTED BY THE CIRCUMSTANCES OF THIS CASE, COMPARED WITH THE
CIRCUMSTANCES OF THE SOUTHERN PACIFIC CASE. 

THE JUDGMENT OF THE SUPREME COURT OF ARIZONA IS REVERSED, AND THE
CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS.  REVERSED AND
REMANDED. 
..END :









ARCHAWSKI V. HANIOTI 350 U.S. 532 


NO. 351.  ARGUED MARCH 5, 1956 - DECIDED APRIL 9, 1956 - 223 F.2D 406,
REVERSED AND REMANDED. 


A LIBEL IN ADMIRALTY ALLEGED THAT PETITIONERS PAID MONEYS TO
RESPONDENT FOR TRANSPORTATION TO EUROPE ON RESPONDENT'S VESSEL, AND
THAT RESPONDENT BREACHED THE CONTRACT BY ABANDONMENT OF THE VOYAGE. 
THE LIBEL FURTHER ALLEGED THAT RESPONDENT WRONGFULLY APPROPRIATED THE
PASSAGE MONEY TO HIS OWN USE AND COMMITTED OTHER FRAUDULENT ACTS. 
HELD:  THE CAUSE OF ACTION ALLEGED WAS WITHIN THE ADMIRALTY
JURISDICTION OF THE FEDERAL DISTRICT COURT.  PP. 532-536. 

(A)  THE ESSENTIAL CHARACTER OF THE LIBEL AS A CLAIM FOR BREACH OF A
MARITIME CONTRACT WAS NOT ALTERED BY THE ALLEGATIONS OF WRONGFULNESS
AND FRAUD.  PP. 534-535. 

(B)  SO LONG AS THE CLAIM ASSERTED ARISES OUT OF A MARITIME CONTRACT,
THE ADMIRALTY COURT HAS JURISDICTION OVER IT.  P. 535. 

(C)  ADMIRALTY HAS JURISDICTION EVEN WHERE A LIBEL READS LIKE
INDEBITATUS ASSUMPSIT AT COMMON LAW, PROVIDED THAT THE UNJUST
ENRICHMENT AROSE OUT OF THE BREACH OF A MARITIME CONTRACT.  PP. 535
536. 

ARCHAWSKI ET AL. V. HANIOTI. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION IN THE CASE IS WHETHER THE CAUSE OF ACTION ALLEGED
COMES WITHIN THE ADMIRALTY JURISDICTION OF THE DISTRICT COURT.  THE
DISTRICT COURT HELD THAT THIS WAS AN ACTION ON A MARITIME CONTRACT,
WITHIN THE ADMIRALTY JURISDICTION, 129 F. SUPP. 410.  THE COURT OF
APPEALS REVERSED, HOLDING THAT THE SUIT WAS IN THE NATURE OF THE OLD
COMMON LAW INDEBITATUS ASSUMPSIT FOR MONEY HAD AND RECEIVED, BASED UPON
THE WRONGFUL WITHHOLDING OF MONEY.  223 F.2D 406.  THE CASE IS HERE ON
A PETITION FOR CERTIORARI WHICH WE GRANTED, 350 U.S. 872, BECAUSE OF
THE SEEMING CONFLICT OF THAT RULING WITH KRAUSS BROS. CO. V. DIMON S.S.
CORP., 290 U.S. 117, 124.  (FN1) 

THE LIBEL ALLEGES THAT RESPONDENT, DOING BUSINESS IN HIS OWN AND IN
VARIOUS TRADE NAMES, OWNED AND CONTROLLED A PASSENGER VESSEL, KNOWN AS
THE CITY OF ATHENS, AND HELD OUT THAT VESSEL AS A COMMON CARRIER OF
PASSENGERS FOR HIRE, AND THAT PETITIONERS PAID MONEYS FOR PASSAGE UPON
THE VESSEL, SCHEDULED FOR JULY 15, 1947, TO EUROPE.  A CONTRACT FOR THE
TRANSPORTATION OF PASSENGERS IS A MARITIME CONTRACT WITHIN ADMIRALTY
JURISDICTION.  (FN2)  THE MOSES TAYLOR, 4 WALL.  411.  THE ALLEGATIONS
SO FAR MENTIONED ARE PLAINLY SUFFICIENT TO ESTABLISH SUCH A CONTRACT. 
THE LIBEL GOES ON TO ALLEGE A BREACH OF THAT CONTRACT THROUGH AN
ABANDONMENT OF THE VOYAGE.  IF THIS WERE ALL, IT WOULD BE PLAIN THAT
PETITIONERS STATED A CLAIM FOR BREACH OF A MARITIME CONTRACT.  BUT THE
LIBEL FURTHER ALLEGES THAT THE SUMS PAID BY PETITIONERS AS PASSAGE
MONEY WERE "WRONGFULLY AND DELIBERATELY" APPLIED BY RESPONDENT TO HIS
OWN USE AND BENEFIT "IN RECKLESS DISREGARD OF HIS OBLIGATIONS TO REFUND
THE SAME" AND THAT RESPONDENT "HAS SECRETED HIMSELF AWAY AND
MANIPULATED HIS ASSETS  ...  FOR THE PURPOSE OF DEFRAUDING"
PETITIONERS.  THEN FOLLOW ALLEGATIONS OF CERTAIN FRAUDULENT ACTS AND
TRANSACTIONS. 

THE ALLEGATIONS OF WRONGFULNESS AND FRAUD DO NOT ALTER THE ESSENTIAL
CHARACTER OF THE LIBEL.  FOR THE ANCIENT ADMIRALTY TEACHING IS THAT,
"THE RULES OF PLEADING IN THE ADMIRALTY ARE EXCEEDINGLY SIMPLE AND FREE
FROM TECHNICAL REQUIREMENTS."  DUPONT DE NEMOURS & CO. V. VANCE, 19
HOW.  162, 171-172.  AND SEE 2 BENEDICT, AMERICAN ADMIRALTY (6TH ED.
1940), SECS. 223, 237.  THOUGH THESE PARTICULAR ALLEGATIONS OF THE
LIBEL SOUND IN FRAUD OR IN THE WRONGFUL WITHHOLDING OF MONEYS, IT IS
PLAIN IN THE CONTEXT THAT THE OBLIGATION TO PAY THE MONEYS AROSE
BECAUSE OF A BREACH OF THE CONTRACT TO TRANSPORT PASSENGERS.  LAWYERS
SPEAK OF THE OBLIGATION IN TERMS OF INDEBITATUS ASSUMPSIT, A CONCEPT
WHOSE TORTUOUS DEVELOPMENT GAVE EXPRESSION TO "THE ETHICAL CHARACTER OF
THE LAW."  SEE AMES, THE HISTORY OF ASSUMPSIT, 2 HARV. L. REV. 1, 53,
58 (1888).  AS MR. JUSTICE HOLMES ONCE PUT IT, "AN OBLIGATION TO PAY
MONEY GENERALLY IS ENFORCED BY AN ACTION OF ASSUMPSIT AND TO THAT
EXTENT IS REFERRED TO A CONTRACT EVEN THOUGH IT BE ONE EXISTING ONLY BY
FICTION OF LAW."  THOMAS V. MATTHIESSEN, 232 U.S. 221, 235. 

THE FICTION SOMETIMES DISTORTED THE LAW.  A LINE OF AUTHORITIES
EMERGED TO THE EFFECT THAT ADMIRALTY HAD NO JURISDICTION TO GRANT
RELIEF IN SUCH CASES "BECAUSE THE IMPLIED PROMISE TO REPAY THE MONEYS
WHICH CANNOT IN GOOD CONSCIENCE BE RETAINED - NECESSARY TO SUPPORT THE
ACTION FOR MONEY HAD AND RECEIVED - IS NOT A MARITIME CONTRACT."  (FN3)
UNITED TRANSP.  & L. CO. V. NEW YORK & B.T. LINE, 185 F. 386, 391. 
YET THAT DUTY TO PAY IS OFTEN REFERABLE, AS HERE, TO THE BREACH OF A
MARITIME CONTRACT.  AS MR. JUSTICE STONE SAID IN KRAUSS BROS. CO. V.
DIMON S.S. CORP., SUPRA, AT 124: 

"  ...  EVEN UNDER THE COMMON LAW FORM OF ACTION FOR MONEY HAD AND
RECEIVED THERE COULD BE NO RECOVERY WITHOUT PROOF OF THE BREACH OF THE
CONTRACT INVOLVED IN DEMANDING THE PAYMENT, AND THE BASIS OF RECOVERY
THERE, AS IN ADMIRALTY, IS THE VIOLATION OF SOME TERM OF THE CONTRACT
OF AFFREIGHTMENT, WHETHER BY FAILURE TO CARRY OR BY EXACTION OF FREIGHT
WHICH THE CONTRACT DID NOT AUTHORIZE." 

THE TRUTH IS THAT IN A CASE SUCH AS THE PRESENT ONE THERE IS NEITHER
AN ACTUAL PROMISE TO REPAY THE PASSAGE MONEYS NOR A SECOND CONTRACT. 
THE PROBLEM IS TO PREVENT UNJUST ENRICHMENT FROM A MARITIME CONTRACT. 
SEE MORRISON, THE REMEDIAL POWERS OF THE ADMIRALTY, 43 YALE L.J. 1, 27
(1933).  A COURT THAT PREVENTS A MARITIME CONTRACT FROM BEING EXPLOITED
IN THAT WAY DOES NOT REACH BEYOND THE DOMAIN OF MARITIME AFFAIRS.  WE
CONCLUDE THAT, SO LONG AS THE CLAIM ASSERTED ARISES OUT OF A MARITIME
CONTRACT, THE ADMIRALTY COURT HAS JURISDICTION OVER IT. 

THE PHILOSOPHY OF INDEBITATUS ASSUMPSIT IS, INDEED, NOT WHOLLY
FOREIGN TO ADMIRALTY.  ANALOGOUS CONCEPTIONS OF RIGHTS BASED ON QUASI
CONTRACT ARE FOUND IN ADMIRALTY.  ONE WHO SAVES PROPERTY AT SEA HAS THE
RIGHT TO AN AWARD OF SALVAGE, REGARDLESS OF ANY AGREEMENT BETWEEN HIM
AND THE OWNER.  SEE MASON V. SHIP BLAIREAU, 2 CRANCH 240, 266; THE
SABINE, 101 U.S. 384, 390; 1 BENEDICT, SUPRA, SEC. 117 ET SEQ.
LIKEWISE, WHERE CARGO IS JETTISONED, THE OWNER BECOMES ENTITLED TO A
CONTRIBUTION IN GENERAL AVERAGE FROM THE OWNERS OF OTHER CARGO WHICH
WAS SAVED WITHOUT THE AID OF ANY AGREEMENT.  SEE BARNARD V. ADAMS, 10
HOW.  270, 303-304; STAR OF HOPE, 9 WALL.  203, 228-230; 1 BENEDICT,
SUPRA, SEC. 98.  OTHER EXAMPLES COULD BE GIVEN.  SEE CHANDLER, QUASI
CONTRACTUAL RELIEF IN ADMIRALTY, 27 MICH. L. REV. 23 (1928).  RIGHTS
WHICH ADMIRALTY RECOGNIZES AS SERVING THE ENDS OF JUSTICE ARE OFTEN
INDISTINGUISHABLE FROM ORDINARY QUASI-CONTRACTUAL RIGHTS CREATED TO
PREVENT UNJUST ENRICHMENT.  HOW FAR THE CONCEPT OF QUASI-CONTRACTS MAY
BE APPLIED IN ADMIRALTY IT IS UNNECESSARY TO DECIDE.  IT IS SUFFICIENT
THIS DAY TO HOLD THAT ADMIRALTY HAS JURISDICTION, EVEN WHERE THE LIBEL
READS LIKE INDEBITATUS ASSUMPSIT AT COMMON LAW, PROVIDED THAT THE
UNJUST ENRICHMENT AROSE AS A RESULT OF THE BREACH OF A MARITIME
CONTRACT.  SUCH IS THE CASE HERE. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE COURT OF
APPEALS FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  THERE IS ALSO AN APPARENT CONFLICT WITH SWORD LINE V. UNITED
STATES, 228 F.2D 344, 346, DECIDED, AFTER WE GRANTED CERTIORARI, BY A
DIFFERENT PANEL OF THE SECOND CIRCUIT FROM THE ONE WHICH SAT IN THE
INSTANT CASE. 

FN2 THE COURT IN NEW JERSEY STEAM NAVIGATION COMPANY V. MERCHANTS'
BANK, 6 HOW.  344, 392, STATED THAT IN DETERMINING ADMIRALTY
JURISDICTION THE INQUIRY IS "INTO THE NATURE AND SUBJECT-MATTER OF THE
CONTRACT, - WHETHER IT WAS A MARITIME CONTRACT, AND THE SERVICE A
MARITIME SERVICE, TO BE PERFORMED UPON THE SEA, OR UPON WATERS WITHIN
THE EBB AND FLOW OF THE TIDE.  AND, AGAIN, WHETHER THE SERVICE WAS TO
BE SUBSTANTIALLY PERFORMED UPON THE SEA, OR TIDE-WATERS, ALTHOUGH IT
HAD COMMENCED AND HAD TERMINATED BEYOND THE REACH OF THE TIDE; IF IT
WAS, THEN JURISDICTION HAS ALWAYS BEEN MAINTAINED." 

FN3  AND SEE ISRAEL V. MOORE & MCCORMACK CO., 295 F. 919; HOME INS.
CO. V. MERCHANTS' TRANSP.  CO., 16 F.2D 372; SILVA V. BANKERS
COMMERCIAL CORP., 163 F.2D 602. 
..END :













INTERNATIONAL HARVESTER CREDIT CORP. V. GOODRICH, CONSTITUTING THE STATE
TAX COMMISSION OF NEW YORK 350 U.S. 537 


NO. 82.  ARGUED JANUARY 17-18, 1956 - DECIDED APRIL 9, 1956 - 308 N.Y.
731, 124 N.E.2D 339, AFFIRMED. 


NEW YORK STATE IMPOSES A HIGHWAY USE TAX, COMPUTED BY THE WEIGHT
DISTANCE PRINCIPLE, UPON MOTOR CARRIERS OPERATING HEAVY VEHICLES ON THE
STATE'S HIGHWAYS.  THE TAX OWED BY A CARRIER IS A STATUTORY LIEN UPON
ALL MOTOR VEHICLES OPERATED BY THE CARRIER WITHIN THE STATE, AND THE
LIEN IS PARAMOUNT TO ALL PRIOR LIENS OR ENCUMBRANCES.  VENDORS OF
PARTICULAR TRUCKS, WHO SOLD THEM TO THE CARRIER UNDER CONDITIONAL SALES
AGREEMENTS MORE THAN A YEAR AFTER THE STATUTE BECAME EFFECTIVE,
CHALLENGED APPLICATION OF THE STATUTORY TAX LIEN, IN SOME
CIRCUMSTANCES, AS A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW
IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION. 
HELD: 

1.  AS APPLIED TO TAXES BASED UPON THE CARRIER'S OPERATION OF OTHER
TRUCKS WITHIN THE STATE, WHETHER BEFORE OR DURING THE TIME THAT THE
CARRIER OPERATED THE PARTICULAR TRUCKS WITHIN THE STATE, THE STATE'S
PRIORITY OF LIEN IS CONSTITUTIONAL.  PP. 538-548. 

2.  AS APPLIED TO TAXES ASSESSED AGAINST THE CARRIER AFTER THE
VENDORS HAVE REPOSSESSED THE PARTICULAR TRUCKS, BUT WHICH WERE BASED
UPON THE CARRIER'S OPERATIONS ON THE STATE'S HIGHWAYS BEFORE SUCH
REPOSSESSION, THE STATE'S PRIORITY OF LIEN IS CONSTITUTIONAL.  PP.  538
548. 

INTERNATIONAL HARVESTER CREDIT CORP. ET AL. V. GOODRICH ET AL.,
CONSTITUTING THE STATE TAX COMMISSION OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE STATE OF NEW YORK IMPOSES A HIGHWAY USE TAX UPON MOTOR CARRIERS
OPERATING HEAVY VEHICLES ON ITS PUBLIC HIGHWAYS.  MANY SUCH VEHICLES
ARE PURCHASED AND OPERATED UNDER CONDITIONAL SALES AGREEMENTS, AND
CERTAIN CONDITIONAL VENDORS HERE QUESTION THE EXTENT TO WHICH THE STATE
MAY SUBORDINATE THE VENDORS' SECURITY INTERESTS TO THE STATE'S LIEN FOR
TAXES OWED BY THE CARRIER.  THE VENDORS QUESTION THE CONSTITUTIONALITY
OF ANY GRANT OF PRIORITY TO THE STATE'S LIEN, OVER THEIR RIGHTS IN
PARTICULAR TRUCKS, INSOFAR AS THE LIEN IS MADE APPLICABLE TO TAXES
BASED UPON THE CARRIER'S OPERATION OF OTHER TRUCKS WITHIN THE STATE,
WHETHER BEFORE, OR DURING, THE TIME THAT THE CARRIER HAS OPERATED THE
PARTICULAR TRUCKS WITHIN THE STATE.  THE VENDORS OBJECT, LIKEWISE, TO
ANY PRIORITY FOR THE LIEN AS APPLIED TO TAXES ASSESSED AGAINST THE
CARRIER AFTER THE VENDORS HAVE REPOSSESSED THE PARTICULAR TRUCKS, EVEN
THOUGH THE TAXES ARE BASED UPON THE CARRIER'S OPERATIONS ON THE STATE'S
HIGHWAYS BEFORE SUCH REPOSSESSION.  (FN1)  FOR THE REASONS HEREAFTER
STATED, WE SUSTAIN THE STATE'S PRIORITY IN EACH INSTANCE. 

INTERNATIONAL HARVESTER CREDIT CORPORATION, A DELAWARE CORPORATION,
AND BROCKWAY MOTOR COMPANY, INC., A NEW YORK CORPORATION, AS PLAINTIFFS
(NOW APPELLANTS), WITH THE MEMBERS OF THE STATE TAX COMMISSION OF NEW
YORK AS DEFENDANTS (NOW APPELLEES), SUBMITTED THIS CONTROVERSY TO THE
SUPREME COURT OF THE STATE OF NEW YORK, APPELLATE DIVISION, THIRD
DEPARTMENT, ON STIPULATED FACTS, PURSUANT TO SEC. 546 OF THE CIVIL
PRACTICE ACT OF NEW YORK.  APPELLANTS SOUGHT A DECLARATORY JUDGMENT
THAT THE LIENS ASSERTED BY THE STATE WERE NOT SUPERIOR TO THE
CONDITIONAL VENDORS' INTERESTS IN CERTAIN TRUCKS AND THAT ARTICLE 21 OF
THE TAX LAW WAS UNCONSTITUTIONAL, INSOFAR AS IT PRESCRIBED THE
PRIORITIES TO WHICH THEY OBJECTED.  (FN2)  APPELLANTS ALSO ASKED THAT
THE BONDS FILED BY THEM TO SECURE PAYMENT OF THE TAXES BE CANCELED AND
RETURNED. 

WITH ONE JUDGE NOT VOTING, THE APPELLATE DIVISION DECIDED IN FAVOR OF
APPELLEES, SUSTAINING GENERALLY THE STATE'S LIENS AND PRIORITIES. 
(FN3)  284 APP. DIV. 604, 132 N.Y.S.2D 511.  ON APPEAL, TAKEN AS A
MATTER OF RIGHT, THAT JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS OF
NEW YORK, WITH ONE JUDGE DISSENTING.  308 N.Y. 731, 124 N.E.2D 339.  ON
APPEAL TO THIS COURT, UNDER 28 U.S.C. SEC. 1257(2), WE NOTED PROBABLE
JURISDICTION.  350 U.S. 813. 

THE STIPULATED FACTS MAY BE SUMMARIZED AS FOLLOWS:  FROM JANUARY 1,
1952, THROUGH FEBRUARY 1954, EASTERN CARTAGE AND LEASING CO., INC.,
HERE CALLED THE "CARRIER," WAS A DOMESTIC CORPORATION OWNING AT LEAST
15 MOTOR VEHICLES.  AS A MOTOR CARRIER IT OPERATED THESE VEHICLES OVER
THE PUBLIC HIGHWAYS OF THE STATE OF NEW YORK SUBJECT TO THE HIGHWAY USE
TAX IMPOSED BY ARTICLE 21 OF THE TAX LAW, SUPRA.  THAT TAX WAS IMPOSED
UPON THE "CARRIER" OR "OWNER," AND THOSE TERMS DID NOT INCLUDE THE
CONDITIONAL VENDOR OF TRUCKS OPERATED BY THE MOTOR CARRIER.  (FN4)  IT
WAS PAYABLE WITH THE MONTHLY RETURNS.  (FN5) 

IN RECOGNITION OF THE ADMINISTRATIVE DIFFICULTIES INVOLVED IN
ENFORCING AND COLLECTING THIS TAX, IN CONTRAST TO A FLAT RATE TAX, OR
ONE MEASURED BY GROSS RECEIPTS, THE STATUTE PRESCRIBED EXTENSIVE
REMEDIES, AS WELL AS PENALTIES, CIVIL AND CRIMINAL (SEE SEC. 512 OF THE
TAX LAW), TO PROTECT THE INTEREST OF THE STATE.  (FN6)  THE PROVISIONS
FOR THE STATE'S LIEN COVERING THE POINTS AT ISSUE ARE AS FOLLOWS: 

"SEC. 506.  PAYMENT OF TAX: 

     *         *         *         *         * 

"THE FEES, TAXES, PENALTIES AND INTEREST ACCRUING UNDER THIS ARTICLE
SHALL CONSTITUTE A LIEN UPON ALL MOTOR VEHICLES AND VEHICULAR UNITS OF
SUCH CARRIER.  THE LIEN SHALL ATTACH AT THE TIME OF OPERATION OF ANY
MOTOR VEHICLE OR VEHICULAR UNIT OF SUCH CARRIER WITHIN THIS STATE AND
SHALL REMAIN EFFECTIVE UNTIL THE FEES, TAXES, PENALTIES AND INTEREST
ARE PAID, OR THE MOTOR VEHICLE OR VEHICULAR UNIT IS SOLD FOR THE
PAYMENT THEREOF.  SUCH LIENS SHALL BE PARAMOUNT TO ALL PRIOR LIENS OR
ENCUMBRANCES OF ANY CHARACTER AND TO THE RIGHTS OF ANY HOLDER OF THE
LEGAL TITLE IN OR TO ANY SUCH MOTOR VEHICLE OR VEHICULAR UNIT." 
MCKINNEY'S N.Y. LAWS, TAX LAW. 

FROM JANUARY 1, 1952, THROUGH FEBRUARY 1954, THE CARRIER INCURRED,
AND FAILED TO PAY, HIGHWAY USE TAXES OF $3,158.77, PLUS PENALTIES AND
INTEREST OF $539.27 THROUGH APRIL 21, 1954.  THE TAXES CARRIED INTEREST
AT 1% PER MONTH.  WHILE NEITHER APPELLANT KNEW ANYTHING OF THESE
DELINQUENCIES UNTIL THE STATE ASSERTED THEM IN APRIL 1954, IT IS ALSO
TRUE THAT NEITHER APPELLANT HAD INQUIRED OF THE CARRIER OR OF THE STATE
AS TO THEIR POSSIBLE EXISTENCE.  (FN7) 

IN FEBRUARY AND MARCH 1953, WHILE THE CARRIER WAS OPERATING UNDER THE
HIGHWAY USE TAX ACT, INTERNATIONAL HARVESTER COMPANY, A FOREIGN
CORPORATION DOING BUSINESS IN NEW YORK STATE, SOLD TWO TRACTORS TO THE
CARRIER FOR $8,253 EACH.  (FN8)  IN EACH SUCH TRANSACTION, THE CARRIER
EXECUTED AND DELIVERED TO THE VENDOR A CONDITIONAL SALES AGREEMENT FOR
$6,541.  THE AGREEMENTS WERE ASSIGNED BY THE VENDOR TO THE
INTERNATIONAL HARVESTER CREDIT CORPORATION, ONE OF THE APPELLANTS
HEREIN, AND WERE PROPERLY FILED IN THE OFFICE OF THE CLERK OF THE TOWN
OF ROTTERDAM, SCHENECTADY COUNTY, NEW YORK.  EACH TRUCK WAS OPERATED BY
THE CARRIER ON THE PUBLIC HIGHWAYS OF NEW YORK STATE AND REMAINED IN
THE CARRIER'S POSSESSION AND CONTROL UNTIL REPOSSESSED JANUARY 26,
1954.  THE CARRIER WAS THEN DELINQUENT UNDER ITS SALES AGREEMENTS TO
THE EXTENT OF $4,578.79 ON EACH TRUCK, AND THE VENDOR BOUGHT THEM IN AT
PUBLIC SALE.  IT RESOLD ONE TO A PURCHASER IN NEW YORK AND THE OTHER TO
A PURCHASER IN MASSACHUSETTS. 

COMPARABLE FACTS RELATE TO THE TRUCK SOLD THE CARRIER BY APPELLANT
BROCKWAY MOTOR COMPANY.  ITS SALES PRICE WAS $7,257; THE CONDITIONAL
SALES AGREEMENT WAS FOR $6,757.  THE REPOSSESSION TOOK PLACE MARCH 26,
1954, WHEN $5,625 WAS OWED TO THE VENDOR.  THE RECORD SHOWS NO DISPOSAL
OF THE TRUCK. 

APRIL 21, 1954, THE STATE ASSERTED ITS LIEN ON EACH TRUCK FOR THE
ENTIRE AMOUNT OF THE HIGHWAY USE TAX DELINQUENCIES OF THE CARRIER,
TOTALING $3,698.04.  (FN9) 

THERE IS NO DISPUTE AS TO THE AMOUNT OF THE TAX DUE TO THE STATE NOR
OF THE CLAIM THAT SUCH SUM IS DUE FROM THE CARRIER.  (FN10)  THERE ALSO
IS NO CONTROVERSY AS TO THE VALIDITY OF THE STATE'S LIEN AGAINST THE
RESPECTIVE TRUCKS FOR SUCH PART OF THE TAX AS IS MEASURED BY THE
OPERATION OF EACH ON THE STATE'S HIGHWAYS. 

THE ISSUE, ACCORDINGLY, HAS BEEN NARROWED BY THE PARTIES TO THE
VALIDITY OF THE SUBORDINATION OF THE RIGHTS OF THE RESPECTIVE
CONDITIONAL VENDORS OF THESE TRUCKS TO THE STATE'S LIEN FOR ANY PART OF
THE CARRIER'S DELINQUENT TAXES THAT EXCEEDS THE SUM DETERMINED BY THE
OPERATION OF THE TRUCKS ON THE STATE'S HIGHWAYS.  TO THE EXTENT OF SUCH
EXCESS, THE VENDORS CLAIM THAT THE STATUTORY LIEN DEPRIVES THEM OF
PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT TO THE FEDERAL CONSTITUTION. 

SEPARATE FACTUAL CONSIDERATIONS ARE PRESENTED BY THE STATE'S LIEN (1)
FOR THE TAXES MEASURED BY THE CARRIER'S OPERATION OF TRUCKS OTHER THAN
THE THREE HERE IN QUESTION, AND (2) FOR THE TAXES MEASURED BY THE
CARRIER'S OPERATION OF TRUCKS BEFORE ITS FIRST OPERATION OF THE
RESPECTIVE THREE TRUCKS IN QUESTION.  THE PRINCIPLE WHICH SUPPORTS THE
STATE'S PRIORITY OF LIEN IS, HOWEVER, THE SAME IN BOTH INSTANCES.  THAT
PRINCIPLE SUPPORTS ALSO THE PRIORITY OF THE STATE'S LIEN AS DATING FROM
THE TIME OF THE CARRIER'S FIRST OPERATION OF THE RESPECTIVE THREE
TRUCKS WITHIN THE STATE.  THIS HOLDS GOOD EVEN THOUGH NO ASSESSMENT OF
THE TAX WAS MADE BY THE STATE UNTIL AFTER THE RESPECTIVE TRUCKS HAD
BEEN REPOSSESSED BY THEIR CONDITIONAL VENDORS.  THE STATE'S CLAIM OF
PRIORITY FOR ITS LIEN DEPENDS, IN EACH INSTANCE, UPON ITS
CONSTITUTIONAL RIGHT TO ENFORCE THE COLLECTION OF ALL TAXES DUE IT FROM
THE MOTOR CARRIER FOR THE LATTER'S USE OF THE HIGHWAYS OF NEW YORK
UNDER A STATUTE GIVING AMPLE NOTICE OF THE TAX AND OF THE PROVISIONS
FOR ITS COLLECTION. 

THERE IS NO DOUBT THAT THE STATE MAY IMPOSE AND ENFORCE A LIEN
COVERING ALL TAXES OWED TO IT BY A CARRIER FOR THE PRIVILEGE OF USING
THE STATE'S HIGHWAYS, WHERE SUCH LIEN APPLIES TO VEHICLES OWNED BY THE
CARRIER FREE AND CLEAR OF ENCUMBRANCES.  THE LIEN FOR SUCH TAXES MAY BE
ENFORCED AGAINST ANY OR ALL OF SUCH TRUCKS, REGARDLESS OF WHETHER THE
TAXES ACCRUED FROM THE CARRIER'S OPERATION OF ONE OR THE OTHER OF SUCH
TRUCKS, OR EVEN WHETHER THEY ACCRUED FROM THE CARRIER'S USE OF THE
HIGHWAYS BEFORE ITS ACQUISITION AND OPERATION OF ANY OF THE PARTICULAR
TRUCKS SUBJECTED TO THE LIEN.  LIKEWISE, THE LIEN UNQUESTIONABLY COULD
ATTACH TO THE TRUCKS AS OF THE TIME OF THEIR FIRST USE BY THE CARRIER
WITHIN THE STATE.  SEE UNITED STATES V. ALABAMA, 313 U.S. 274, 280
282.  SUCH LIENS ARE SIMPLE ILLUSTRATIONS OF THE STATE'S EXERCISE OF
ITS PREROGATIVE RIGHT TO IMPOSE A STATUTORY LIEN FOR DELINQUENT TAXES
UPON THE TAXPAYER'S PROPERTY.  SEE MARSHALL V. NEW YORK, 254 U.S. 380,
382-384.  A STATE IS ENTITLED TO WIDE DISCRETION IN SUCH MATTERS. 

THE CONTROVERSY ARISES HERE BECAUSE, FOR THE PRESENT PURPOSES, THE
STATE TREATS THE THREE TRUCKS NOW BEFORE US IN THE SAME MANNER AS IT
DOES THE CARRIER'S UNENCUMBERED TRUCKS.  THE VENDORS, RELYING UPON
THEIR CONDITIONAL SALES AGREEMENTS, DENY THIS RIGHT.  THE STATE DOES
NOT DISPUTE THE VALIDITY OF THOSE AGREEMENTS.  THE STATE, HOWEVER,
TREATS THEM AS SECURITY INTERESTS RATHER THAN AS ABSOLUTE INTERESTS. 
THE STATE EMPHASIZES THE ACTION OF THE VENDORS IN YIELDING CONTROL OF
THE TRUCKS TO THE CARRIER THUS ENABLING THE CARRIER TO OPERATE THEM ON
THE STATE'S HIGHWAYS.  THE BURDEN PLACED ON THE HIGHWAYS HAS BEEN
PRECISELY THE SAME AS THOUGH THE CARRIER HAD HELD UNENCUMBERED TITLE TO
THE TRUCKS. 

LOOKING AT THE SITUATION FROM ANOTHER POINT OF VIEW, NEW YORK HAS AN
UNQUESTIONABLE RIGHT TO REGULATE THE USE OF CONDITIONAL SALES
AGREEMENTS WITHIN THE STATE.  THE PRESCRIBED PRIORITY OF ITS HIGHWAY
TAX LIENS OVER THE RIGHTS OF CONDITIONAL VENDORS MAY BE REGARDED,
THEREFORE, AS IN THE NATURE OF A SUPPLEMENT TO THE NEW YORK UNIFORM
CONDITIONAL SALES ACT.  MCKINNEY'S N.Y. LAWS, PERSONAL PROPERTY LAW,
ART. 4. 

NEW YORK SUBJECTS EACH CARRIER TO A REASONABLY COMPUTED TAX FOR THE
USE OF ITS HIGHWAYS AND, IN ORDER TO COLLECT THAT TAX, PLACES A
STATUTORY LIEN UPON ALL MOTOR VEHICLES OPERATED BY THE CARRIER WITHIN
THE STATE.  THE CARRIER HERE WAS THE BENEFICIAL OWNER AND OPERATOR OF
THE THREE TRUCKS DURING THE TIME IT HAD POSSESSION OF THEM.  THE
CONDITIONAL SALES AGREEMENTS PROVIDED THE VENDORS WITH SECURITY FOR
PAYMENT OF THE PURCHASE PRICE OF THE TRUCKS.  AS LONG AS THE CARRIER
KEPT UP ITS PAYMENTS, THE POSSESSION AND CONTROL OF THE TRUCKS WERE IN
THE CARRIER AND ITS USE OF THEM ON THE HIGHWAYS HAD THE SAME EFFECT ON
THOSE HIGHWAYS AS THOUGH THE TRUCKS HAD BEEN PAID FOR IN FULL.  (FN11) 

THE ENFORCEMENT OF THIS LIEN RESTS UPON PRINCIPLES KNOWN TO THE LAW
IN OTHER CONNECTIONS.  A LANDLORD'S LIEN FOR UNPAID RENT LONG HAS BEEN
ENFORCEABLE AGAINST PERSONAL PROPERTY FOUND ON THE PREMISES IN THE
POSSESSION OF THE TENANT, EVEN THOUGH THE LEGAL TITLE TO SUCH PERSONAL
PROPERTY MAY BE IN A THIRD PARTY WHO HAS ALLOWED THE TENANT TO HAVE
POSSESSION AND BENEFICIAL USE OF IT.  SPENCER V. M'GOWEN, 13 WEND. 
(N.Y.)  256.  (FN12) 

THE HIGHWAY USE TAX IS NOT ASSESSED ON THE CONDITIONAL VENDOR OR ON
THE VENDOR'S TRUCKS AS SUCH.  IT IS A TAX ASSESSED ON THE CARRIER AND
THE LIEN FOR ITS COLLECTION IS IMPOSED ON THE TRUCKS IN THE CARRIER'S
POSSESSION WHICH HAVE BEEN OPERATED BY IT ON NEW YORK'S HIGHWAYS.  THE
STATE ASSERTS NO PERSONAL LIABILITY ON THE PART OF EITHER OF THE
APPELLANTS.  THE STATE'S CLAIM IS LIMITED TO ITS LIEN AS SET FORTH IN A
STATUTE WHICH WAS IN EFFECT MORE THAN A YEAR BEFORE THE RESPECTIVE
APPELLANTS SOLD THEIR TRUCKS TO THE CARRIER.  WHILE IT IS NOT A
CONDITION OF THE VALIDITY OF THE STATE'S LIEN, IT IS OBVIOUS THAT
VENDORS OF TRUCKS, AS WELL AS CARRIERS, DERIVE SUBSTANTIAL BENEFITS
FROM THE STATE'S COSTLY CONSTRUCTION AND MAINTENANCE OF ITS HIGHWAYS
FOR HEAVY TRAFFIC.  THE REASONABLENESS OF THE LIEN IS THEREBY
EMPHASIZED.  CASES CONDEMNING ATTEMPTS BY STATES TO COMPUTE ONE
PERSON'S TAX BY REFERENCE TO THE INCOME OR ACTIVITIES OF ANOTHER ARE
NOT PERSUASIVE HERE.  THE TAX HERE IS ON THE CARRIER AND IT IS COMPUTED
WITH REFERENCE TO THE CARRIER'S OWN USE OF THE HIGHWAYS.  THIS
STATUTORY LIEN DOES NOT DESTROY THE EFFICACY OF CONDITIONAL SALES
FINANCING.  PRACTICALLY, IT SUGGESTS THAT THE CONDITIONAL VENDORS
SECURE ASSURANCE FROM THEIR CARRIER-CUSTOMERS THAT THE LATTERS' HIGHWAY
USE TAXES ARE NOT IN ARREARS. 

WHILE THE STATE WOULD NOT, AT COMMON LAW, HAVE A LIEN TO THE EXTENT
HERE ASSERTED, THAT IS FAR FROM SAYING THAT THE LIEN, WHEN IMPOSED BY
STATUTE, IS ARBITRARY OR UNREASONABLE AND, THEREFORE, LACKING IN DUE
PROCESS. 

JUSTICE CARDOZO SAID FOR THIS COURT IN BURNET V. WELLS, 289 U.S. 670,
677-678:    "THE CONTROVERSY IS ONE AS TO THE BOUNDARIES OF LEGISLATIVE
POWER.  IT MUST BE DEALT WITH IN A LARGE WAY, AS QUESTIONS OF DUE
PROCESS ALWAYS ARE, NOT NARROWLY OR PEDANTICALLY, IN SLAVERY TO FORMS
OR PHRASES.  'TAXATION IS NOT SO MUCH CONCERNED WITH THE REFINEMENTS OF
TITLE AS IT IS WITH THE ACTUAL COMMAND OVER THE PROPERTY TAXED - THE
ACTUAL BENEFIT FOR WHICH THE TAX IS PAID.'  CORLISS V. BOWERS, SUPRA
(281 U.S. 376), P. 378.  CF.  BURNET V. GUGGENHEIM, SUPRA (288 U.S.
280), P. 283.  REFINEMENTS OF TITLE HAVE AT TIMES SUPPLIED THE RULE
WHEN THE QUESTION HAS BEEN ONE OF CONSTRUCTION AND NOTHING MORE, A
QUESTION AS TO THE MEANING OF A TAXING ACT TO BE READ IN FAVOR OF THE
TAXPAYER.  REFINEMENTS OF TITLE ARE WITHOUT CONTROLLING FORCE WHEN A
STATUTE, UNMISTAKABLE IN MEANING, IS ASSAILED BY A TAXPAYER AS
OVERPASSING THE BOUNDS OF REASON, AN EXERCISE BY THE LAWMAKERS OF
ARBITRARY POWER.  IN SUCH CIRCUMSTANCES THE QUESTION IS NO LONGER
WHETHER THE CONCEPT OF OWNERSHIP REFLECTED IN THE STATUTE IS TO BE
SQUARED WITH THE CONCEPT EMBODIED, MORE OR LESS VAGUELY, IN COMMON LAW
TRADITIONS.  THE QUESTION IS WHETHER IT IS ONE THAT AN ENLIGHTENED
LEGISLATOR MIGHT ACT UPON WITHOUT AFFRONT TO JUSTICE.  EVEN
ADMINISTRATIVE CONVENIENCE, THE PRACTICAL NECESSITIES OF AN EFFICIENT
SYSTEM OF TAXATION, WILL HAVE HEED AND RECOGNITION WITHIN REASONABLE
LIMITS." 

THERE IS LITTLE DOUBT THAT IF THIS TAX ON THE CARRIER WERE REQUIRED
TO BE COMPUTED AT A FLAT RATE, OR MEASURED BY THE GROSS RECEIPTS OF THE
CARRIER FROM ITS USE OF THE STATE'S HIGHWAYS, THAT THE LIENS HERE
ASSERTED ON ALL VEHICLES IN THE CARRIER'S FLEET OF TRUCKS (ALTHOUGH
SUBJECT TO CONDITIONAL SALES) WOULD BE VALID AS A REASONABLE MEANS OF
ENFORCING SUCH AN UNALLOCABLE TAX.  THE STATE HAS NO LESS A
CONSTITUTIONAL RIGHT TO PRESCRIBE AND ENFORCE ITS LIEN WHERE, AS HERE,
THE TAX ON THE CARRIER IS ALLOCABLE BECAUSE COMPUTED IN CLOSE
PROPORTION TO THE ACTUAL BURDEN PLACED ON THE HIGHWAYS BY THE
RESPECTIVE TRUCKS OPERATED BY THE CARRIER.  IN EITHER CASE, THE TAX IS
OWED BY THE CARRIER AND THE NEED FOR AN EFFECTIVE LIEN TO ENFORCE IT IS
ALL THE MORE NECESSARY WHERE, AS HERE, THE TAX CANNOT BE COMPUTED OR
READILY COLLECTED IN ADVANCE. 

THE JUDGMENT OF THE COURT OF APPEALS OF THE STATE OF NEW YORK,
ACCORDINGLY, IS AFFIRMED. 

FN1  WE DO NOT HAVE BEFORE US THE VALIDITY OF THE ATTEMPTED
SUBORDINATION OF A CONDITIONAL VENDOR'S SECURITY INTEREST IN A TRUCK
SOLD TO AND OPERATED BY A CARRIER WHERE THE TAX IS MEASURED BY ANY USE
OF THE HIGHWAYS BY THE CARRIER AFTER THE TRUCK HAS BEEN REPOSSESSED BY
ITS VENDOR.  SUCH A CLAIM WAS MADE IN THIS CASE BUT IT WAS ABANDONED BY
THE STATE. 

FN2  ARTICLE 21 OF THE TAX LAW, EFFECTIVE OCTOBER 1, 1951, IMPOSED A
TAX FOR THE PRIVILEGE OF OPERATING ON THE HIGHWAYS OF NEW YORK MOTOR
VEHICLES HAVING A GROSS WEIGHT OF OVER 18,000 POUNDS EACH.  MCKINNEY'S
N.Y. LAWS, SECS. 501(2) AND 503.  THE TAX WAS COMPUTED ON A GRADUATED
SCALE BEGINNING AT SIX MILLS PER MILE FOR VEHICLES OF BETWEEN 18,001
AND 20,000 POUNDS.  THE SCALE ROSE TO 35 MILLS FOR TRUCKS WEIGHING
BETWEEN 74,001 AND 76,000 POUNDS, WITH AN ADDITIONAL TWO MILLS PER TON
AND FRACTION THEREOF ABOVE THAT WEIGHT.  THE TAX WAS DETERMINED BY
MULTIPLYING THE NUMBER OF MILES OPERATED OVER THE HIGHWAYS OF THE STATE
BY THE RATE FOR THE APPROPRIATE WEIGHT GROUP.  ID., SEC. 503. 

FN3  THE LIEN WAS NOT UPHELD AS TO ANY TAXES WHICH ACCRUED AFTER
REPOSSESSION OF THE TRUCKS. 

FN4  "SUCH TAX SHALL BE UPON THE CARRIER EXCEPT THAT WHERE THE
CARRIER IS NOT THE OWNER OF SUCH VEHICULAR UNIT, THE TAX SHALL BE A
JOINT AND SEVERAL LIABILITY UPON BOTH."  TAX LAW, SEC. 503.  AND SEE
THE FOLLOWING INTERPRETATION OF THE ABOVE SENTENCE BY THE ATTORNEY
GENERAL OF NEW YORK WHICH WE ACCEPT: 

"IN MY OPINION, THE STATUTE DOES NOT INTEND THE INCLUSION OF 'A
CONDITIONAL VENDOR' IN THE WORD 'OWNER.'  THE JOINT AND SEVERAL
LIABILITY IMPOSED UPON AN OWNER OTHER THAN THE CARRIER IS DESIGNED TO
COVER THOSE WHO LAWFULLY PLACE THE USE AND CONTROL OF VEHICLES IN THE
HANDS OF OTHERS FOR OPERATION UPON THE HIGHWAYS UNDER CIRCUMSTANCES AND
ARRANGEMENTS WHICH DO NOT LOOK TO DIVESTITURE OF THEIR OWN PROPRIETARY
INTERESTS.  A CONDITIONAL VENDOR, ON THE OTHER HAND, RETAINS LEGAL
TITLE AS A SPECIAL INTEREST, PROTECTING THE UNPAID PURCHASE PRICE OF
THE VEHICLE.  THE TRANSACTION LOOKS TO DEFEASANCE OF ALL HIS INTEREST
IF COMPLETED IN ACCORDANCE WITH ITS TERMS. 

     *         *         *         *         * 

"I CONCLUDE THAT A CONDITIONAL VENDOR IS NOT AN 'OWNER' SUBJECTED TO
PERSONAL LIABILITY FOR THE HIGHWAY USE TAX AS SUCH."  REP. ATTY. GEN.
N.Y., OP., 219, 220 (1954). 

"'CARRIER' SHALL INCLUDE ANY PERSON HAVING THE LAWFUL USE OR CONTROL,
OR THE RIGHT TO THE USE OR CONTROL OF ANY MOTOR VEHICLE."  TAX LAW,
SEC. 501(5). 

FN5  TAX LAW, SECS. 505, 506. 

FN6  THE LEGISLATURE ADOPTED THE WEIGHT-DISTANCE PRINCIPLE OF
TAXATION AS A SUBSTITUTE FOR THE STATE'S FORMER SYSTEM OF FUEL TAXES
AND LICENSE FEES.  IT REJECTED PROPOSALS IMPOSING FLAT FEES OR
MEASURING THE TAX BY GROSS RECEIPTS.  N.Y. LEG.  DOC.  NO. 67 (1951) 65
80. 

"THE LEGISLATURE HEREBY FINDS AND DECLARES THAT THE OPERATION OF
HEAVY MOTOR VEHICLES UPON THE HIGHWAYS OF THIS STATE GREATLY INCREASES
WEAR AND DAMAGE ON SUCH HIGHWAYS; THAT THERE IS A DIRECT RELATIONSHIP
BETWEEN THE WEIGHT OF THE VEHICLE USING SUCH HIGHWAYS AND THE DAMAGE
DONE TO THEM; THAT THE PERIOD OF USEFULNESS OF SUCH HIGHWAYS IS
SHORTENED BY SUCH USE; THAT THE EFFECT OF SUCH USE IS TO CREATE AND
AUGMENT HAZARDS TO PEDESTRIANS AND OTHER TRAFFIC AND TO IMPOSE ON THE
STATE A HEAVIER FINANCIAL BURDEN FOR HIGHWAY CONSTRUCTION, MAINTENANCE
AND POLICING THAN DOES THE OPERATION OF SMALLER VEHICLES; THAT THE
PROVISIONS OF THIS ARTICLE ARE THEREFORE NECESSARY AND ARE HEREBY
ENACTED TO DISTRIBUTE MORE EQUITABLY THIS FINANCIAL BURDEN AND TO
COMPENSATE THE STATE IN PART FOR THE PRIVILEGE GRANTED TO SUCH HEAVY
VEHICLES OF USING THE HIGHWAYS OF THE STATE AND FOR THE COST OF
ADMINISTERING STATE TRAFFIC REGULATIONS."  LAWS 1951, C. 74, SEC. 1,
MCKINNEY'S N.Y. LAWS, TAX LAW, HISTORICAL NOTE, 711. 

FN7  DURING THE TIME MATERIAL HERE, SEC. 514 OF THE TAX LAW FORBADE
THE DISCLOSURE BY THE STATE OF INFORMATION CONCERNING SUCH TAX
DELINQUENCIES AND MADE IT A MISDEMEANOR TO DIVULGE INFORMATION AS TO
THE TAX RETURNS.  THOSE RESTRICTIONS HAVE NOW BEEN RELAXED.  TAX LAW,
1955 CUM. POCKET PT., 24. 

FN8  THE "TRACTORS" WERE MOTOR VEHICLES SUBJECT TO ARTICLE 21.  THEY
CONSTITUTED THE AUTOMOTIVE PORTION OF TRACTOR-TRAILERS AND ARE REFERRED
TO IN THIS OPINION AS TRUCKS. 

FN9  THE LIEN SUSTAINED AGAINST INTERNATIONAL WAS FOR $3,409.78, WITH
INTEREST ON $2,884.61 AT 1% PER MONTH FROM APRIL 21, 1954.  THAT
AGAINST BROCKWAY WAS FOR $3,698.04, WITH LIKE INTEREST ON $3,158.77
FROM THE SAME DATE.  THE TRUCKS IN NEW YORK STATE HAVE BEEN RELEASED ON
BOND.  AS TO THE TRUCK IN MASSACHUSETTS, THE STATE HAS ASSERTED A LIEN
AGAINST THE PROCEEDS OF ITS RESALE. 

FN10  THE CONSTITUTIONALITY OF THE TAX, AS DISTINGUISHED FROM THE
CONSTITUTIONALITY OF THE LIENS PRESCRIBED FOR ITS COLLECTION, IS NOT
NOW CONTESTED.  MID-STATES FREIGHT LINES, INC. V. BATES, 279 APP. DIV.
451, 111 N.Y.S.2D 578, AFF'D WITHOUT OPINION, 304 N.Y. 700, 107 N.E.2D
603, CERT. DENIED, 345 U.S. 908.  SEE ALSO, CAPITOL GREYHOUND LINES V.
BRICE, 339 U.S. 542. 

FN11  "THE PARTIES TO A CONDITIONAL SALE HAVE DIVIDED PROPERTY
INTERESTS IN THE GOODS.  THE BUYER IS THE BENEFICIAL AND SUBSTANTIAL
OWNER, WITH SUCH ATTRIBUTES OF OWNERSHIP AS POSSESSION, USE AND
CONTROL, AND HAS HIS EQUITY OF REDEMPTION SEDULOUSLY GUARDED BY THE
LAW.  THE SELLER, ON THE OTHER HAND, RESERVES TITLE TO THE GOODS SOLELY
AS SECURITY FOR PAYMENT OR PERFORMANCE BY THE BUYER.  ESSENTIALLY A
CONDITIONAL SALE IS ONLY A CREDIT DEVICE.  ITS PLAIN AND OBVIOUS
PURPOSE IS THE SAME AS A PURCHASE-MONEY CHATTEL MORTGAGE DESPITE
TECHNICAL OR THEORETICAL DIFFERENCES BETWEEN THE TWO FORMS OF
SECURITY."  SCHNITZER V. FRUEHAUF TRAILER CO., 283 APP. DIV. 421, 431,
128 N.Y.S.2D 242, 253, AFF'D WITHOUT OPINION, 307 N.Y. 876, 122 N.E.2D
754; 2 WILLISTON ON SALES (REV. ED. 1948) SEC. 330 ET SEQ. 

FN12  SEE ALSO, AS TO THE INNKEEPER'S LIEN, WATERS & CO. V. GERARD,
189 N.Y. 302, 82 N.E. 143, AND AS TO THE AGISTER'S LIEN, CORNING V.
ASHLEY, 51 HUN 483, 4 N.Y.S. 255, AFF'D WITHOUT OPINION, 121 N.Y. 700,
24 N.E. 1100.  AND SEE HERSEE V. PORTER, 100 N.Y.  403, 3 N.E. 338. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

SO FAR AS THE UNITED STATES CONSTITUTION LIMITS THEM, THE STATES HAVE
THE AMPLEST SCOPE IN IMPOSING HIGHWAY TAXES AND DEVISING RELEVANT MEANS
FOR ENFORCING THEM.  WITHIN THE VAST RANGE OF ITS DISCRETIONARY TAXING
POWER, A STATE MAY PROVIDE THAT A CREDITOR WHO ADDS TO THE CORPUS OF
EQUIPMENT USED BY HIS DEBTOR ON THE STATE'S HIGHWAYS CANNOT BE HEARD TO
COMPLAIN IF HIS EQUITY IN SUCH EQUIPMENT IS SUBORDINATED NOT ONLY TO
TAX LIENS ON THAT SPECIFIC EQUIPMENT, BUT ALSO, AS IS TRUE OF THE NEW
YORK STATE LEGISLATION, FOR TAX LIENS INCURRED BY ALL THE DEBTOR'S
VEHICLES FOR THE ENTIRE PERIOD DURING WHICH THE CREDITOR HAS ENABLED
HIS DEBTOR TO HAVE ADDED VEHICLES ON THE ROAD.  AS A PRACTICAL MATTER,
THE CARRIER'S CREDITOR MAY WELL HAVE ADEQUATE MEANS OF PROTECTING
HIMSELF REGARDING THE INCIDENCE OF HIGHWAY TAXES AND THEIR DEFAULT
DURING THE WHOLE OF THE PERIOD THAT SUCH CREDITOR HELPED TO ENHANCE THE
TOTALITY OF VEHICLES USED BY THE CARRIER. 

WE THEREFORE AGREE WITH THE COURT THAT TAXES INCURRED BY ALL THE
VEHICLES IN EASTERN'S SERVICE DURING THE PERIOD THAT THE THREE
INTERNATIONAL HARVESTER TRACTORS WERE ON THE ROAD MAY BE COLLECTED BY
WAY OF ENFORCING TAX LIENS FOR SUCH TOTAL TAXES AGAINST THE THREE
INTERNATIONAL TRACTORS.  IT IS IMMATERIAL THAT THESE THREE TRACTORS
WERE HELD UNDER A CREDIT ARRANGEMENT WHEREBY INTERNATIONAL HARVESTER
RESERVED INTEREST IN THEM BY WAY OF SECURITY FOR PAYMENT OF THEIR
PURCHASE PRICE. 

A VERY DIFFERENT SITUATION IS PRESENTED FOR SUCH PART OF THE TAXES AS
ARE SOUGHT TO BE COLLECTED BY WAY OF LIEN OUT OF THESE INTERNATIONAL
HARVESTER TRACTORS FOR THE PERIOD ANTEDATING THEIR CONDITIONAL SALE TO
EASTERN. 

PROPERTY IS INCLUDED WITHIN THE TRIAD OF INTERESTS PROTECTED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT - "NOR SHALL ANY STATE
DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS
OF LAW."  WHEN ONE MAN'S PROPERTY IS TAKEN AND GIVEN TO ANOTHER OR, AS
IN THIS CASE, IS TAKEN TO SATISFY THE DEBTS OF ANOTHER, A JUSTIFYING
PUBLIC PURPOSE MUST MEET THE REQUIREMENTS OF THE DUE PROCESS CLAUSE. 
SEE THOMPSON V. CONSOLIDATED GAS CO., 300 U.S. 55, 79-80. 

IT IS ONE THING FOR A CREDITOR, WHO HAS ENABLED HIS DEBTOR TO HOLD
HIMSELF OUT AS HAVING DOMINION OVER PROPERTY WHICH THE CREDITOR HAS
PLACED WITHIN HIS DEBTOR'S CONTROL, TO SUFFER FOR DEBTS INCURRED BY HIS
DEBTOR TO THIRD PERSONS.  IT IS QUITE ANOTHER THING TO SADDLE SUCH
CREDITOR'S PROPERTY WITH SATISFACTION OF PRIOR OBLIGATION TO A THIRD
PERSON WHEN THE CREDITOR HAD NO MEANS WHATEVER OF SAFEGUARDING HIMSELF
AGAINST THE ENFORCEMENT OF SUCH THIRD-PARTY INDEBTEDNESS.  NOR DOES IT
MATTER THAT THE THIRD PARTY IS THE STATE. 

IN THE SITUATION BEFORE US, INTERNATIONAL HARVESTER HAD NO MEANS OF
PROTECTING ITSELF AGAINST HIGHWAY TAXES INCURRED BY EASTERN PRIOR TO
THE TIME THAT IT PUT ITS THREE TRACTORS INTO EASTERN'S HANDS.  IT IS
ADMITTED THAT UNDER NEW YORK LAW IN FORCE AT THE TIME OF THE
CONDITIONAL SALE OF THESE TRACTORS, INTERNATIONAL HARVESTER COULD NOT
POSSIBLY HAVE PROTECTED ITSELF AGAINST THE LOSSES TO WHICH IT IS NOW
SUBJECTED EXCEPT BY AVOIDING SUCH SALES.  IT COULD NOT POSSIBLY HAVE
ASCERTAINED THE TAX LIABILITIES OF ITS CONDITIONAL VENDEE PRIOR TO THE
CREDIT ARRANGEMENT IN THE SALE OF THESE TRACTORS.  IT COULD NOT HAVE
INFORMED ITSELF BY EXAMINING THE TAX RETURNS OF ITS VENDEE.  NEW YORK
MADE IT A MISDEMEANOR FOR ANY STATE OFFICIAL TO DIVULGE SUCH
INFORMATION.  N.Y. TAX LAW, ART. 21, SEC. 514.  THUS, THERE IS NO
CONNECTION WHATEVER BETWEEN THE UNDOUBTED PROPERTY INTEREST THAT
INTERNATIONAL HARVESTER HAD IN THE THREE TRACTORS AND THE EXTENT OF THE
LIEN THAT THE STATE SOUGHT TO FORECLOSE IN THEM.  WHEN ONE CONSIDERS
THE IMPORTANT ROLE PLAYED IN OUR ECONOMY BY CREDIT SALES, IT WILL
HARDLY DO FOR THE LAW TO DEEM SUCH TRANSACTIONS EXTRA-HAZARDOUS AND
SUBJECT SUCH CREDITORS TO AN INSURER'S RISKS. 

WE WOULD THEREFORE REMAND THE CASE TO THE NEW YORK COURTS IN ORDER TO
RESTRICT THE ENFORCIBLE LIEN IN APPELLANT'S TRACTORS TO THE HIGHWAY
TAXES INCURRED BY EASTERN FOR THE PERIOD THAT APPELLANT'S VEHICLES WERE
IN EASTERN'S SERVICE. 
..END :






SLOCHOWER V. BOARD OF HIGHER EDUCATION OF NEW YORK CITY 350 U.S. 551 


NO. 23.  ARGUED OCTOBER 18-19, 1955 - DECIDED APRIL 9, 1956 - 306 N.Y.
532, 119 N.E. 2D 373, 307 N.Y. 806, 121 N.E.2D 629, REVERSED AND
REMANDED. 


CITY EMPLOYEE UTILIZES THE PRIVILEGE AGAINST SELF-INCRIMINATION TO
AVOID ANSWERING BEFORE A LEGISLATIVE COMMITTEE A QUESTION RELATING TO
HIS OFFICIAL CONDUCT, HIS EMPLOYMENT SHALL TERMINATE.  A TEACHER IN A
COLLEGE OPERATED BY THE CITY WAS SUMMARILY DISCHARGED UNDER THIS
FEDERAL LEGISLATIVE COMMITTEE, HE REFUSED TO ANSWER QUESTIONS
CONCERNING HIS MEMBERSHIP IN THE COMMUNIST PARTY IN 1940 AND 1941, ON
THE GROUND THAT HIS ANSWERS MIGHT TEND TO INCRIMINATE HIM.  UNDER THE
NEW YORK EDUCATION LAW, HE WAS ENTITLED TO TENURE AND COULD BE
DISCHARGED ONLY FOR CAUSE AND AFTER NOTICE, HEARING AND APPEAL.  HELD:
IN THE CIRCUMSTANCES OF THIS CASE, HIS SUMMARY DISMISSAL VIOLATED THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 552-559. 

(A)  THE PRIVILEGE AGAINST SELF-INCRIMINATION WOULD BE REDUCED TO A
HOLLOW MOCKERY IF ITS EXERCISE COULD BE TAKEN AS EQUIVALENT EITHER TO A
CONFESSION OF GUILT OR A CONCLUSIVE PRESUMPTION OF PERJURY.   PP. 556
558. 

(B)  ON THE RECORD IN THIS CASE, IT CANNOT BE CLAIMED THAT THE
BOARD'S ACTION IN DISMISSING THE TEACHER WAS PART OF A BONA FIDE
ATTEMPT TO GAIN NEEDED AND RELEVANT INFORMATION REGARDING HIS
QUALIFICATIONS FOR HIS POSITION.  PP. 558-559. 

(C)  SINCE NO INFERENCE OF GUILT WAS POSSIBLE FROM THE CLAIM OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION BEFORE THE FEDERAL COMMITTEE, THE
DISCHARGE FALLS OF ITS OWN WEIGHT AS WHOLLY WITHOUT SUPPORT.  P. 559. 

(D)  ADLER V. BOARD OF EDUCATION, 342 U.S. 485, AND GARNER V. LOS
ANGELES BOARD, 341 U.S. 716, DISTINGUISHED.  PP. 555-556. 

(E)  WIEMAN V. UPDEGRAFF, 344 U.S. 183, FOLLOWED.  PP. 556-558. 

SLOCHOWER V. BOARD OF HIGHER EDUCATION OF NEW YORK CITY. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL BRINGS INTO QUESTION THE CONSTITUTIONALITY OF SEC. 903 OF
THE CHARTER OF THE CITY OF NEW YORK.  THAT SECTION PROVIDES THAT
WHENEVER AN EMPLOYEE OF THE CITY UTILIZES THE PRIVILEGE AGAINST SELF
INCRIMINATION TO AVOID ANSWERING A QUESTION RELATING TO HIS OFFICIAL
CONDUCT, "HIS TERM OR TENURE OF OFFICE OR EMPLOYMENT SHALL TERMINATE
AND SUCH OFFICE OR EMPLOYMENT SHALL BE VACANT, AND HE SHALL NOT BE
ELIGIBLE TO ELECTION OR APPOINTMENT TO ANY OFFICE OR EMPLOYMENT UNDER
THE CITY OF ANY AGENCY."  (FN1)  APPELLANT SLOCHOWER INVOKED THE
PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT BEFORE
AN INVESTIGATING COMMITTEE OF THE UNITED STATES SENATE, AND WAS
SUMMARILY DISCHARGED FROM HIS POSITION AS ASSOCIATE PROFESSOR AT
BROOKLYN COLLEGE, AN INSTITUTION MAINTAINED BY THE CITY OF NEW YORK. 
HE NOW CLAIMS THAT THE CHARTER PROVISION, AS APPLIED TO HIM, VIOLATES
BOTH THE DUE PROCESS AND PRIVILEGES AND IMMUNITIES CLAUSES OF THE
FOURTEENTH AMENDMENT. 

ON SEPTEMBER 24, 1952, THE INTERNAL SECURITY SUBCOMMITTEE OF THE
COMMITTEE ON THE JUDICIARY OF THE UNITED STATES SENATE HELD OPEN
HEARINGS IN NEW YORK CITY.  THE INVESTIGATION, CONDUCTED ON A NATIONAL
SCALE, RELATED TO SUBVERSIVE INFLUENCES IN THE AMERICAN EDUCATIONAL
SYSTEM.  AT THE BEGINNING OF THE HEARINGS THE CHAIRMAN STATED THAT
EDUCATION WAS PRIMARILY A STATE AND LOCAL FUNCTION, AND THEREFORE THE
INQUIRY WOULD BE LIMITED TO "CONSIDERATIONS AFFECTING NATIONAL
SECURITY, WHICH ARE DIRECTLY WITHIN THE PURVIEW AND AUTHORITY OF THE
SUBCOMMITTEE."  HEARINGS BEFORE THE SUBCOMMITTEE TO INVESTIGATE THE
ADMINISTRATION OF THE INTERNAL SECURITY ACT AND OTHER INTERNAL SECURITY
LAWS OF SENATE COMMITTEE ON THE JUDICIARY, 82D CONG., 2D SESS. 1. 
PROFESSOR SLOCHOWER, WHEN CALLED TO TESTIFY, STATED THAT HE WAS NOT A
MEMBER OF THE COMMUNIST PARTY, AND INDICATED COMPLETE WILLINGNESS TO
ANSWER ALL QUESTIONS ABOUT HIS ASSOCIATIONS OR POLITICAL BELIEFS SINCE
1941.   BUT HE REFUSED TO ANSWER QUESTIONS CONCERNING HIS MEMBERSHIP
DURING 1940 AND 1941 ON THE GROUND THAT HIS ANSWERS MIGHT TEND TO
INCRIMINATE HIM.  THE CHAIRMAN OF THE SENATE SUBCOMMITTEE ACCEPTED
SLOCHOWER'S CLAIM AS A VALID ASSERTION OF AN ADMITTED CONSTITUTIONAL
RIGHT. 

IT HAD BEEN ALLEGED THAT SLOCHOWER WAS A COMMUNIST IN 1941 IN THE
TESTIMONY OF ONE BERNARD GREBANIER BEFORE THE RAPP-COUDERT COMMITTEE OF
THE NEW YORK LEGISLATURE.  SEE REPORT OF THE SUBCOMMITTEE OF THE JOINT
LEGISLATIVE COMMITTEE TO INVESTIGATE PROCEDURES AND METHODS OF
ALLOCATING STATE MONEYS FOR PUBLIC SCHOOL PURPOSES AND SUBVERSIVE
ACTIVITIES, LEGISLATIVE DOCUMENT (1942), NO. 49, STATE OF NEW YORK, AT
318.  SLOCHOWER TESTIFIED THAT HE HAD APPEARED TWICE BEFORE THE RAPP
COUDERT COMMITTEE, AND HAD SUBSEQUENTLY TESTIFIED BEFORE THE BOARD OF
FACULTY RELATING TO THIS CHARGE.  HE ALSO TESTIFIED THAT HE HAD
ANSWERED QUESTIONS AT THESE HEARINGS RELATING TO HIS COMMUNIST
AFFILIATIONS IN 1940 AND 1941. 

SHORTLY AFTER TESTIFYING BEFORE THE INTERNAL SECURITY SUBCOMMITTEE,
SLOCHOWER WAS NOTIFIED THAT HE WAS SUSPENDED FROM HIS POSITION AT THE
COLLEGE; THREE DAYS LATER HIS POSITION WAS DECLARED VACANT "PURSUANT TO
THE PROVISIONS OF SECTION 903 OF THE NEW YORK CITY CHARTER."(*) 

*(REPORTER'S NOTE:  A SENTENCE WHICH WAS REPORTED IN THE PRELIMINARY
PRINT AT P. 554, LINES 13-18, WAS DELETED BY AN ORDER OF THE COURT
ENTERED MAY 28, 1956, 351 U.S. 944.) 

SLOCHOWER HAD 27 YEARS' EXPERIENCE AS A COLLEGE TEACHER AND WAS
ENTITLED TO TENURE UNDER STATE LAW.  MCKINNEY'S NEW YORK LAWS,
EDUCATION LAW, SEC. 6206 (2).  UNDER THIS STATUTE, APPELLANT MAY BE
DISCHARGED ONLY FOR CAUSE, AND AFTER NOTICE, HEARING, AND APPEAL.  SEC.
6206 (10).  THE COURT OF APPEALS OF NEW YORK, HOWEVER, HAS
AUTHORITATIVELY INTERPRETED SEC. 903 TO MEAN THAT "THE ASSERTION OF THE
PRIVILEGE AGAINST SELF INCRIMINATION IS EQUIVALENT TO A RESIGNATION." 
DANIMAN V. BOARD OF EDUCATION, 306 N.Y. 532, 538, 119 N.E.2D 373, 377. 
DISMISSAL UNDER THIS PROVISION IS THEREFORE AUTOMATIC AND THERE IS NO
RIGHT TO CHARGES, NOTICE, HEARING, OR OPPORTUNITY TO EXPLAIN. 

THE SUPREME COURT OF NEW YORK, COUNTY OF KINGS, CONCLUDED THAT
APPELLANT'S BEHAVIOR FELL WITHIN THE SCOPE OF SEC. 903, AND UPHELD ITS
APPLICATION HERE.  202 MISC. 915, 118 N.Y.S.2D 487.  THE APPELLATE
DIVISION, 282 APP. CIV. 718, 122 N.Y.S.2D 286, REPORTED SUB NOM.
SHLAKMAN V. BOARD, AND THE COURT OF APPEALS, REPORTED SUB NOM.  DANIMAN
V. BOARD, SUPRA, EACH BY A DIVIDED COURT, AFFIRMED.  WE NOTED PROBABLE
JURISDICTION, 348 U.S. 935, BECAUSE OF THE IMPORTANCE OF THE QUESTION
PRESENTED.  (FN2) 

SLOCHOWER ARGUES THAT SEC. 903 ABRIDGES A PRIVILEGE OR IMMUNITY OF A
CITIZEN OF THE UNITED STATES SINCE IT IN EFFECT IMPOSES A PENALTY ON
THE EXERCISE OF A FEDERALLY GUARANTEED RIGHT IN A FEDERAL PROCEEDING. 
IT ALSO VIOLATES DUE PROCESS, HE ARGUES, BECAUSE THE MERE CLAIM OF
PRIVILEGE UNDER THE FIFTH AMENDMENT DOES NOT PROVIDE A REASONABLE BASIS
FOR THE STATE TO TERMINATE HIS EMPLOYMENT.  APPELLEE INSISTS THAT NO
QUESTION OF "PRIVILEGES OR IMMUNITIES" WAS RAISED OR PASSED ON BELOW,
AND THEREFORE DIRECTS ITS ARGUMENT SOLELY TO THE PROPOSITION THAT SEC.
903 DOES NOT OPERATE IN AN ARBITRARY OR CAPRICIOUS MANNER.  WE DO NOT
DECIDE WHETHER A CLAIM UNDER THE "PRIVILEGES OR IMMUNITIES" CLAUSE WAS
CONSIDERED BELOW, SINCE WE CONCLUDE THE SUMMARY DISMISSAL OF APPELLANT
IN THE CIRCUMSTANCES OF THIS CASE VIOLATES DUE PROCESS OF LAW. 

THE PROBLEM OF BALANCING THE STATE'S INTEREST IN THE LOYALTY OF THOSE
IN ITS SERVICE WITH THE TRADITIONAL SAFEGUARDS OF INDIVIDUAL RIGHTS IS
A CONTINUING ONE.  TO STATE THAT A PERSON DOES NOT HAVE A
CONSTITUTIONAL RIGHT TO GOVERNMENT EMPLOYMENT IS ONLY TO SAY THAT HE
MUST COMPLY WITH REASONABLE, LAWFUL, AND NONDISCRIMINATORY TERMS LAID
DOWN BY THE PROPER AUTHORITIES.  ADLER V. BOARD OF EDUCATION, 342 U.S.
485, UPHELD THE NEW YORK FEINBERG LAW WHICH AUTHORIZED THE PUBLIC
SCHOOL AUTHORITIES TO DISMISS EMPLOYEES WHO, AFTER NOTICE AND HEARING,
WERE FOUND TO ADVOCATE THE OVERTHROW OF THE GOVERNMENT BY UNLAWFUL
MEANS, OR WHO WERE UNABLE TO EXPLAIN SATISFACTORILY MEMBERSHIP IN
CERTAIN ORGANIZATIONS FOUND TO HAVE THAT AIM.  (FN3)  LIKEWISE GARNER
V. LOS ANGELES BOARD, 341 U.S. 716, 720, UPHELD THE RIGHT OF THE CITY
TO INQUIRE OF ITS EMPLOYEES AS TO "MATTERS THAT MAY PROVE RELEVANT TO
THEIR FITNESS AND SUITABILITY FOR THE PUBLIC SERVICE," INCLUDING THEIR
MEMBERSHIP, PAST AND PRESENT, IN THE COMMUNIST PARTY OR THE COMMUNIST
POLITICAL ASSOCIATION.  THERE IT WAS HELD THAT THE CITY HAD POWER TO
DISCHARGE EMPLOYEES WHO REFUSED TO FILE AN AFFIDAVIT DISCLOSING SUCH
INFORMATION TO THE SCHOOL AUTHORITIES.  (FN4) 

BUT IN EACH OF THESE CASES IT WAS EMPHASIZED THAT THE STATE MUST
CONFORM TO THE REQUIREMENTS OF DUE PROCESS.  IN WIEMAN V. UPDEGRAFF,
344 U.S. 183, WE STRUCK DOWN A SO-CALLED "LOYALTY OATH" BECAUSE IT
BASED EMPLOYABILITY SOLELY ON THE FACT OF MEMBERSHIP IN CERTAIN
ORGANIZATIONS.  WE POINTED OUT THAT MEMBERSHIP ITSELF MAY BE INNOCENT
AND HELD THAT THE CLASSIFICATIONS OF INNOCENT AND GUILTY TOGETHER WAS
ARBITRARY.  (FN5)  THIS CASE RESTS SQUARELY ON THE PROPOSITION THAT
"CONSTITUTIONAL PROTECTION DOES EXTEND TO THE PUBLIC SERVANT WHOSE
EXCLUSION PURSUANT TO A STATUTE IS PATENTLY ARBITRARY OR
DISCRIMINATORY."  344 U.S., AT 192. 

HERE THE BOARD, IN SUPPORT OF ITS POSITION, CONTENDS THAT ONLY TWO
POSSIBLE INFERENCES FLOW FROM APPELLANT'S CLAIM OF SELF-INCRIMINATION:
(1) THAT THE ANSWERING OF THE QUESTION WOULD TEND TO PROVE HIM GUILTY
OF A CRIME IN SOME WAY CONNECTED WITH HIS OFFICIAL CONDUCT; OR (2) THAT
IN ORDER TO AVOID ANSWERING THE QUESTION HE FALSELY INVOKED THE
PRIVILEGE BY STATING THAT THE ANSWER WOULD TEND TO INCRIMINATE HIM, AND
THUS COMMITTED PERJURY.  EITHER INFERENCE, IT INSISTS, IS SUFFICIENT TO
JUSTIFY THE TERMINATION OF HIS EMPLOYMENT.  THE COURT OF APPEALS,
HOWEVER, ACCEPTED THE COMMITTEE'S DETERMINATION THAT THE PRIVILEGE HAD
BEEN PROPERLY INVOKED AND IT FURTHER HELD THAT NO INFERENCE OF
COMMUNIST PARTY MEMBERSHIP COULD BE DRAWN FROM SUCH A REFUSAL TO
TESTIFY.  IT FOUND THE STATUTE TO IMPOSE MERELY A CONDITION ON PUBLIC
EMPLOYMENT AND AFFIRMED THE SUMMARY ACTION TAKEN IN THE CASE.  WITH
THIS CONCLUSION WE CANNOT AGREE. 

AT THE OUTSET WE MUST CONDEMN THE PRACTICE OF IMPUTING A SINISTER
MEANING TO THE EXERCISE OF A PERSON'S CONSTITUTIONAL RIGHT UNDER THE
FIFTH AMENDMENT.  THE RIGHT OF AN ACCUSED PERSON TO REFUSE TO TESTIFY,
WHICH HAD BEEN IN ENGLAND MERELY A RULE OF EVIDENCE, WAS SO IMPORTANT
TO OUR FOREFATHERS THAT THEY RAISED IT TO THE DIGNITY OF A
CONSTITUTIONAL ENACTMENT, AND IT HAS BEEN RECOGNIZED AS "ONE OF THE
MOST VALUABLE PREROGATIVES OF THE CITIZEN."  BROWN V. WALKER, 161 U.S.
591, 610.  WE HAVE REAFFIRMED OUR FAITH IN THIS PRINCIPLE RECENTLY IN
QUINN V. UNITED STATES, 349 U.S. 155.  IN ULLMANN V. UNITED STATES, 350
U.S. 422, DECIDED LAST MONTH, WE SCORE THE ASSUMPTION THAT THOSE WHO
CLAIM THIS PRIVILEGE ARE EITHER CRIMINALS OR PERJURERS.  THE PRIVILEGE
AGAINST SELF-INCRIMINATION WOULD BE REDUCED TO A HOLLOW MOCKERY IF ITS
EXERCISE COULD BE TAKEN AS EQUIVALENT EITHER TO A CONFESSION OF GUILT
OR A CONCLUSIVE PRESUMPTION OF PERJURY.  AS WE POINTED OUT IN ULLMANN,
A WITNESS MAY HAVE A REASONABLE FEAR OR PROSECUTION AND YET BE INNOCENT
OF ANY WRONGDOING.  THE PRIVILEGE SERVES TO PROTECT THE INNOCENT WHO
OTHERWISE MIGHT BE ENSNARED BY AMBIGUOUS CIRCUMSTANCES.  SEE GRISWOLD,
THE FIFTH AMENDMENT TODAY (1955). 

WITH THIS IN MIND, WE CONSIDER THE APPLICATION OF SEC. 903.  AS
INTERPRETED AND APPLIED BY THE STATE COURTS, IT OPERATES TO DISCHARGE
EVERY CITY EMPLOYEE WHO INVOKES THE FIFTH AMENDMENT.  IN PRACTICAL
EFFECT THE QUESTIONS ASKED ARE TAKEN AS CONFESSED AND MADE THE BASIS OF
THE DISCHARGE.  NO CONSIDERATION IS GIVEN TO SUCH FACTORS AS THE
SUBJECT MATTER OF THE QUESTIONS, REMOTENESS OF THE PERIOD TO WHICH THEY
ARE DIRECTED, OR JUSTIFICATION FOR EXERCISE OF THE PRIVILEGE.  IT
MATTERS NOT WHETHER THE PLEA RESULTED FROM MISTAKE, INADVERTENCE OR
LEGAL ADVICE CONSCIENTIOUSLY GIVEN, WHETHER WISELY OR UNWISELY.  THE
HEAVY HAND OF THE STATUTE FALLS ALIKE ON ALL WHO EXERCISE THEIR
CONSTITUTIONAL PRIVILEGE, THE FULL ENJOYMENT OF WHICH EVERY PERSON IS
ENTITLED TO RECEIVE.  SUCH ACTION FALLS SQUARELY WITHIN THE PROHIBITION
OF WIEMAN V. UPDEGRAFF, SUPRA. 

IT IS ONE THING FOR THE CITY AUTHORITIES THEMSELVES TO INQUIRE INTO
SLOCHOWER'S FITNESS, BUT QUITE ANOTHER FOR HIS DISCHARGE TO BE BASED
ENTIRELY ON EVENTS OCCURRING BEFORE A FEDERAL COMMITTEE WHOSE INQUIRY
WAS ANNOUNCED AS NOT DIRECTED AT "THE PROPERTY, AFFAIRS, OR GOVERNMENT
OF THE CITY, OR  ... OFFICIAL CONDUCT OF CITY EMPLOYEES."  IN THIS
RESPECT THE PRESENT CASE DIFFERS MATERIALLY FROM GARNER, WHERE THE CITY
WAS ATTEMPTING TO ELICIT INFORMATION NECESSARY TO DETERMINE THE
QUALIFICATIONS OF ITS EMPLOYEES.  HERE, THE BOARD HAD POSSESSED THE
PERTINENT INFORMATION FOR 12 YEARS, AND THE QUESTIONS WHICH PROFESSOR
SLOCHOWER REFUSED TO ANSWER WERE ADMITTEDLY ASKED FOR A PURPOSE WHOLLY
UNRELATED TO HIS COLLEGE FUNCTIONS.  ON SUCH A RECORD THE BOARD CANNOT
CLAIM THAT ITS ACTION WAS PART OF A BONA FIDE ATTEMPT TO GAIN NEEDED
AND RELEVANT INFORMATION. 

WITHOUT ATTACKING PROFESSOR SLOCHOWER'S QUALIFICATION FOR HIS
POSITION IN ANY MANNER, AND APPARENTLY WITH FULL KNOWLEDGE OF THE
TESTIMONY HE HAD GIVEN SOME 12 YEARS BEFORE AT THE STATE COMMITTEE
HEARING, THE BOARD SEIZED UPON HIS CLAIM OF PRIVILEGE BEFORE THE
FEDERAL COMMITTEE AND CONVERTED IT THROUGH THE USE OF SEC. 903 INTO A
CONCLUSIVE PRESUMPTION OF GUILT.  SINCE NO INFERENCE OF GUILT WAS
POSSIBLE FROM THE CLAIM BEFORE THE FEDERAL COMMITTEE, THE DISCHARGE
FALLS OF ITS OWN WEIGHT AS WHOLLY WITHOUT SUPPORT.  THERE HAS NOT BEEN
THE "PROTECTION OF THE INDIVIDUAL AGAINST ARBITRARY ACTION" WHICH MR.
JUSTICE CARDOZO CHARACTERIZED AS THE VERY ESSENCE OF DUE PROCESS.  OHIO
BELL TELEPHONE CO. V. COMMISSIONERS, 301 U.S. 292, 302. 

THIS IS NOT TO SAY THAT SLOCHOWER HAS A CONSTITUTIONAL RIGHT TO BE AN
ASSOCIATE PROFESSOR OF GERMAN AT BROOKLYN COLLEGE.  THE STATE HAS BROAD
POWERS IN THE SELECTION AND DISCHARGE OF ITS EMPLOYEES, AND IT MAY BE
THAT PROPER INQUIRY WOULD SHOW SLOCHOWER'S CONTINUED EMPLOYMENT TO BE
INCONSISTENT WITH A REAL INTEREST OF THE STATE.  BUT THERE HAS BEEN NO
SUCH INQUIRY HERE.  WE HOLD THAT THE SUMMARY DISMISSAL OF APPELLANT
VIOLATES DUE PROCESS OF LAW. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  THE FULL TEXT OF SEC. 903 PROVIDES: 

"IF ANY COUNCILMAN OR OTHER OFFICER OR EMPLOYEE OF THE CITY SHALL,
AFTER LAWFUL NOTICE OR PROCESS, WILFULLY REFUSE OR FAIL TO APPEAR
BEFORE ANY COURT OR JUDGE, ANY LEGISLATIVE COMMITTEE, OR ANY OFFICER,
BOARD OR BODY AUTHORIZED TO CONDUCT ANY HEARING OR INQUIRY, OR HAVING
APPEARED SHALL REFUSE TO TESTIFY OR TO ANSWER ANY QUESTION REGARDING
THE PROPERTY, GOVERNMENT OR AFFAIRS OF THE CITY OR OF ANY COUNTY
INCLUDED WITHIN ITS TERRITORIAL LIMITS, OR REGARDING THE NOMINATION,
ELECTION, APPOINTMENT, OR OFFICIAL CONDUCT OF ANY OFFICER OR EMPLOYEE
OF THE CITY OF OF ANY SUCH COUNTY, ON THE GROUND THAT HIS ANSWER WOULD
TEND TO INCRIMINATE HIM, OR SHALL REFUSE TO WAIVE IMMUNITY FROM
PROSECUTION ON ACCOUNT OF ANY SUCH MATTER IN RELATION TO WHICH HE MAY
BE ASKED TO TESTIFY UPON ANY SUCH HEARING OR INQUIRY, HIS TERM OR
TENURE OF OFFICE OR EMPLOYMENT SHALL TERMINATE AND SUCH OFFICE OR
EMPLOYMENT SHALL BE VACANT, AND HE SHALL NOT BE ELIGIBLE TO ELECTION OR
APPOINTMENT TO ANY OFFICE OR EMPLOYMENT UNDER THE CITY OR ANY AGENCY." 
FN2  THIRTEEN OTHER INDIVIDUALS BROUGHT SUIT FOR REINSTATEMENT AFTER
THEIR DISMISSAL FOR PLEADING THE PRIVILEGE AGAINST SELF-INCRIMINATION
IN THE SAME FEDERAL INVESTIGATION.  WE DISMISSED THE APPEAL OF THESE
INDIVIDUALS "FOR WANT OF A PROPERLY PRESENTED FEDERAL QUESTION." 
DANIMAN V. BOARD, 348 U.S. 933.  SEE DANIMAN V. BOARD, 307 N.Y. 806,
121 N.E.2D 629, WHERE THE NEW YORK COURT OF APPEALS DECLINED TO AMEND
ITS REMITTITUR TO STATE THAT A FEDERAL QUESTION HAD BEEN PRESENTED AND
PASSED ON AS TO THESE APPELLANTS, BUT DID SO AMEND ITS REMITTITUR AS TO
SLOCHOWER. 

FN3  MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENTED.  MR.
JUSTICE FRANKFURTER DISSENTED ON GROUNDS OF STANDING AND RIPENESS. 

FN4  MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENTED.  MR.
JUSTICE FRANKFRUTER AND MR. JUSTICE BURTON CONCURRED IN THIS ASPECT OF
THE CASE, BUT DISSENTED FROM OTHER PORTIONS OF THE DECISION IN SEPARATE
OPINIONS. 

FN5  MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER CONCURRED IN
SEPARATE OPINIONS IN WHICH MR. JUSTICE DOUGLAS JOINED.  MR. JUSTICE
BURTON CONCURRED IN THE RESULT. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS JOIN THE COURT'S JUDGMENT
AND OPINION, BUT ALSO ADHERE TO THE VIEWS EXPRESSED IN THEIR DISSENTS
IN ADLER V. BOARD OF EDUCATION, AND GARNER V. LOS ANGELES BOARD, SUPRA,
AND TO THEIR CONCURRENCES IN WIEMAN V. UPDEGRAFF, SUPRA. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

IN RELIANCE UPON THE DUE PROCESS CLAUSE OF OUR CONSTITUTION, THE
COURT STRIKES DEEP INTO THE AUTHORITY OF NEW YORK TO PROTECT ITS LOCAL
GOVERNMENTAL INSTITUTIONS FROM INFLUENCES OF OFFICIALS WHOSE CONDUCT
DOES NOT MEET THE DECLARED STATE STANDARDS FOR EMPLOYMENT.  THIS NEW
YORK CITY CHARTER, SEC. 903, ADOPTED IN 1936, TO TAKE EFFECT IN 1938,
WAS DESIGNED TO ELIMINATE FROM PUBLIC EMPLOYMENT INDIVIDUALS WHO
REFUSED TO ANSWER LEGALLY AUTHORIZED INQUIRIES AS TO THE "OFFICIAL
CONDUCT OF ANY OFFICER OR EMPLOYEE OF THE CITY  ...  ON THE GROUND THAT
HIS ANSWER WOULD TEND TO INCRIMINATE HIM."  ITS PROVISIONS, AS
APPLICABLE TO PROFESSOR SLOCHOWER AND OTHERS, HAVE BEEN UPHELD BY THE
COURT OF APPEALS OF NEW YORK UNDER MULTI-PRONGED STATE GROUNDS OF
ATTACK IN THE INSTANCES WHERE HE AND OTHER CITY TEACHERS OF NEW YORK
HAVE SOUGHT TO BAR THEIR REMOVAL FROM THEIR POSITIONS.  (FN1) 

THE SOLE RELIANCE OF THE COURT FOR REVERSAL OF THE NEW YORK COURT OF
APPEALS IS THAT SEC. 903, AS HERE APPLIED, VIOLATES THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION.  THE
COURT OF APPEALS AMENDED ITS REMITTITUR TO SHOW THAT IT HELD FEDERAL
DUE PROCESS WAS NOT VIOLATED.  307 N.Y. 806, 121 N.E.2D 629.  IN VIEW
OF THE CONCLUSIONS OF THE COURT OF APPEALS WE NEED DEAL ONLY WITH THAT
PROBLEM.  THE COURT OF APPEALS HAS EXCLUSIVE POWER TO DETERMINE THE
REACH OF ITS OWN STATUTE. 

THE COURT FINDS IT A DENIAL OF DUE PROCESS TO DISCHARGE AN EMPLOYEE
MERELY BECAUSE HE RELIED UPON THE FIFTH AMENDMENT PLEA OF SELF
INCRIMINATION TO AVOID ANSWERING QUESTIONS WHICH HE WOULD BE OTHERWISE
REQUIRED TO ANSWER.  WE ASSERT THE CONTRARY - THE CITY DOES HAVE
REASONABLE GROUND TO REQUIRE ITS EMPLOYEES EITHER TO GIVE EVIDENCE
REGARDING FACTS OF OFFICIAL CONDUCT WITHIN THEIR KNOWLEDGE OR TO GIVE
UP THE POSITIONS THEY HOLD.  PETITIONERS NEVER CONTENDED THAT ERROR OR
INADVERTENCE LED THEM TO REFUSE TO ANSWER.  THEIR CONTENTION IS SET OUT
IN THE MARGIN BELOW.  (FN2) DISCHARGES UNDER SEC. 903 DO NOT DEPEND
UPON ANY CONCLUSION AS TO THE GUILT OF THE EMPLOYEE OF SOME CRIME THAT
MIGHT BE DISCLOSED BY HIS TESTIMONY OR AS TO HIS GUILT OF PERJURY, IF
REALLY THERE WAS NO PROSECUTION TO FEAR.  WE DISAGREE WITH THE COURT'S
ASSUMPTION THAT SEC. 903 AS A PRACTICAL MATTER TAKES THE QUESTIONS
ASKED AS CONFESSED.  CITIES, LIKE OTHER EMPLOYERS, MAY REASONABLY
CONCLUDE THAT A REFUSAL TO FURNISH APPROPRIATE INFORMATION IS ENOUGH TO
JUSTIFY DISCHARGE.  LEGALLY AUTHORIZED BODIES HAVE A RIGHT TO DEMAND
THAT CITIZENS FURNISH FACTS PERTINENT TO OFFICIAL INQUIRIES.  THE DUTY
TO RESPOND MAY BE REFUSED FOR PERSONAL PROTECTION AGAINST PROSECUTION
ONLY, BUT SUCH AVOIDANCE OF PUBLIC DUTY TO FURNISH INFORMATION CAN
PROPERLY BE CONSIDERED TO STAMP THE EMPLOYEE AS A PERSON UNFIT TO HOLD
CERTAIN OFFICIAL POSITIONS.  SUCH A CONCLUSION IS REINFORCED WHEN THE
CLAIMANT FOR PROTECTION HAS THE ROLE OF INSTRUCTOR TO YOUTH.  THE FACT
THAT THE WITNESS HAS A RIGHT TO PLEAD THE PRIVILEGE AGAINST SELF
INCRIMINATION PROTECTS HIM AGAINST PROSECUTION BUT NOT AGAINST THE LOSS
OF HIS JOB.  (FN3) 

THE COURT MAY INTEND MERELY TO HOLD THAT SINCE THE FACTS OF
SLOCHOWER'S ALLEGED COMMUNIST AFFILIATIONS PRIOR TO 1941 WERE KNOWN TO
THE BOARD BEFORE THE FEDERAL CLAIM, AND SINCE THE INQUIRIES OF THE
COMMITTEE WERE ASKED FOR A PURPOSE UNRELATED TO HIS COLLEGE FUNCTIONS,
THEREFORE IT WAS A DENIAL OF DUE PROCESS TO VACATE HIS OFFICE.  IF SO,
ITS CONCLUSION IS LIKEWISE, WE THINK, ERRONEOUS.   WE AGREE THAT THIS
CASE IS NOT LIKE GARNER V. LOS ANGELES BOARD, 341 U.S. 716, AN ATTEMPT
TO ELICIT INFORMATION ABOUT PROFESSIONAL QUALIFICATIONS.  BUT SEC. 903
IS DIRECTED AT THE PROPRIETY OF EMPLOYING A MAN WHO REFUSES TO GIVE
NEEDED INFORMATION TO APPROPRIATE PUBLIC BODIES. 

CONSIDERATION OF THE MEANING OF "DUE PROCESS" UNDER THE FOURTEENTH
AMENDMENT SUPPORTS OUT POSITION THAT SEC. 903 OF THE CITY CHARTER DOES
NOT VIOLATE THAT CONCEPT.  FOR THIS COURT TO HOLD THAT STATE ACTION IN
THE FIELD OF ITS UNCHALLENGED POWERS VIOLATES THE DUE PROCESS OF THE
FEDERAL CONSTITUTION REQUIRES FAR MORE THAN MERE DISAGREEMENT WITH THE
LEGAL CONCLUSIONS OF STATE COURTS.  TO REQUIRE, AS THE COURT DOES, THAT
NEW YORK STAY ITS HAND IN DISCHARGING A TEACHER WHOM THE CITY DEEMS
UNWORTHY TO OCCUPY A CHAIR IN ITS BROOKLYN COLLEGE, DEMANDS THAT THIS
COURT SAY, IF IT FOLLOWS OUR PRIOR CASES, THAT THE ACTION OF THE BOARD
IS DECLARING PROFESSOR SLOCHOWER'S POSITION VACANT WAS INCONSISTENT
WITH THE FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE
BASE OF ALL OUR CIVIL AND POLITICAL INSTITUTIONS.  (FN4)  A DENIAL OF
DUE PROCESS IS "A PRACTICE REPUGNANT TO THE CONSCIENCE OF MANKIND." 
(FN5)  SURELY NO SUCH SITUATION EXISTS HERE. 

THOSE CHARGED WITH EDUCATIONAL DUTIES IN A STATE BEAR HEAVY
RESPONSIBILITIES.  ONLY A FEW YEARS AGO, IN ADLER V. BOARD OF
EDUCATION, 342 U.S. 485, WE UPHELD AGAINST THREE DISSENTS THE FEINBERG
LAW OF NEW YORK MAKING INELIGIBLE FOR EMPLOYMENT AS A TEACHER IN ANY
PUBLIC SCHOOL OF MEMBER OF ANY SUBVERSIVE ORGANIZATION, IF HE KNEW ITS
PURPOSE.  THE ARGUMENT THAT THE "FACT FOUND BEARS NO RELATION TO THE
FACT PRESUMED," I.E., "DISQUALIFICATION FOR EMPLOYMENT," WAS REJECTED. 
THERE ALSO THE CONTENTION WAS DENIAL OF DUE PROCESS.  WE SAID: 

"A TEACHER WORKS IN A SENSITIVE AREA IN A SCHOOLROOM.  THERE HE
SHAPES THE ATTITUDE OF YOUNG MINDS TOWARDS THE SOCIETY IN WHICH THEY
LIVE.  IN THIS, THE STATE HAS A VITAL CONCERN.  IT MUST PRESERVE THE
INTEGRITY OF THE SCHOOLS.  THAT THE SCHOOL AUTHORITIES HAVE THE RIGHT
AND THE DUTY TO SCREEN THE OFFICIALS, TEACHERS, AND EMPLOYEES AS TO
THEIR FITNESS TO MAINTAIN THE INTEGRITY OF THE SCHOOLS AS A PART OF
ORDERED SOCIETY, CANNOT BE DOUBTED.  ONE'S ASSOCIATES, PAST AND
PRESENT, AS WELL AS ONE'S CONDUCT, MAY PROPERLY BE CONSIDERED IN
DETERMINING FITNESS AND LOYALTY."  ID., AT 493. 

A GREAT AMERICAN UNIVERSITY HAS DECLARED THAT MEMBERS OF ITS FACULTY
WHO INVOKED THE FIFTH AMENDMENT BEFORE COMMITTEES OF CONGRESS WERE
GUILTY OF "MISCONDUCT" THOUGH NOT GRAVE ENOUGH TO JUSTIFY DISMISSAL. 
(FN6)  NUMEROUS OTHER COLLEGES AND UNIVERSITIES HAVE TREATED THE PLEA
OF THE FIFTH AMENDMENT AS A JUSTIFICATION FOR DISMISSAL OF FACULTY
MEMBERS.  (FN7)  WHEN EDUCATIONAL INSTITUTIONS THEMSELVES FEEL THE
IMPROPRIETY OF RESERVING FULL DISCLOSURE OF FACTS FROM DULY AUTHORIZED
OFFICIAL INVESTIGATIONS, CAN WE PROPERLY SAY A CITY CANNOT PROTECT
ITSELF AGAINST SUCH CONDUCT BY ITS TEACHERS? 

THE NEW YORK RULE IS NOT THE PATENTLY ARBITRARY AND DISCRIMINATORY
STATUTE OF WIEMAN V. UPDEGRAFF, 344 U.S. 183.  THERE "(A) STATE SERVANT
MAY HAVE JOINED A PROSCRIBED ORGANIZATION UNAWARE OF ITS ACTIVITIES AND
PURPOSES."  P. 190.  THIS COURT UNANIMOUSLY CONDEMNED AS ARBITRARY THE
REQUIREMENT OF AN OATH THAT COVERED BOTH INNOCENT AND KNOWING
MEMBERSHIP WITHOUT DISTINCTION.  A DIFFERENT SITUATION EXISTS HERE. 
ELIMINATION OF GRAFT AND CORRUPTION.  (FN8)  NUMEROUS EMPLOYEES HAD
REFUSED TO TESTIFY AS TO CRIMINAL ACTS ON THE GROUND OF SELF
INCRIMINATION.  NEW YORK DECIDED IT DID NOT WANT THAT KIND OF PUBLIC
EMPLOYEES.  WE THINK NEW YORK HAD THAT RIGHT.  WE WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS. 

FN1  MATTER OF DANIMAN V. BOARD OF EDUCATION, MATTER OF SHLAKMAN V.
BOARD OF HIGHER EDUCATION, 306 N.Y. 532, 119 N.E.2D 373. 

"IN THIS COURT WE ARE ALL AGREED THAT THE COMMUNIST PARTY IS A
CONTINUING CONSPIRACY AGAINST OUR GOVERNMENT  ...  .  WE ARE ALSO ALL
IN AGREEMENT THAT AN INQUIRY INTO PAST OR PRESENT MEMBERSHIP IN THE
COMMUNIST PARTY IS AN INQUIRY REGARDING THE OFFICIAL CONDUCT OF AN
OFFICER OR EMPLOYEE OF THE CITY OF NEW YORK.  LOYALTY TO OUR GOVERNMENT
GOES TO THE VERY HEART OF OFFICIAL CONDUCT IN SERVICE RENDERED IN ALL
BRANCHES OF GOVERNMENT  ...  .  COMMUNISM IS OPPOSED TO SUCH LOYALTY
...  . INTERNAL SECURITY AFFECTS LOCAL AS WELL AS NATIONAL
GOVERNMENTS."  ID., AT 540-541, 119 N.E.2D, AT 379.  THE MAJORITY
DECIDED SEC.  903 WAS APPLICABLE TO A "HEARING BEFORE A FEDERAL
LEGISLATIVE COMMITTEE" AND THAT THIS APPELLANT WAS AN EMPLOYEE OF THE
CITY.  ID., AT 541, 119 N.E.2D, AT 379. 

FN2  APPELLANT'S PETITION TO THE SUPREME COURT OF THE STATE OF NEW
YORK STATED IN PERTINENT PART AS FOLLOWS: 

"9.  PETITIONERS ANSWERED SOME AND REFUSED TO ANSWER OTHERS OF THE
QUESTIONS REFERRED TO IN PARAGRAPH 8 ON VARIOUS AND NUMEROUS GROUNDS,
INCLUDING THE GROUNDS THAT THE SUBCOMMITTEE HAD NOT JURISDICTION TO
INQUIRE INTO SUCH MATTERS, THE GROUND THAT THE FIRST AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES FORBADE SUCH INQUIRY, THE GROUND THAT
THE PROCEDURES OF THE SUBCOMMITTEE VIOLATED THEIR RIGHTS UNDER THE
FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND THAT THEY
COULD NOT BE REQUIRED UNDER THE FIFTH AMENDMENT TO ANSWER SUCH
QUESTIONS, AND ON OTHER GROUNDS.   THE SUBCOMMITTEE ACQUIESCED IN THE
REFUSAL OF PETITIONERS TO ANSWER SUCH QUESTIONS." 

FN3  CF. ULLMANN V. UNITED STATES, 350 U.S. 422, AT 438-439: 

"FOR THE HISTORY OF THE PRIVILEGE ESTABLISHES NOT ONLY THAT IT IS NOT
TO BE INTERPRETED LITERALLY, BUT ALSO THAT ITS SOLE CONCERN IS, AS ITS
NAME INDICATES, WITH THE DANGER TO A WITNESS FORCED TO GIVE TESTIMONY
LEADING TO THE INFLICTION OF 'PENALTIES AFFIXED TO THE CRIMINAL ACTS
...  .'" 

FN4  HEBERT V. LOUISIANA, 272 U.S. 312, 316.  CF. TWINING V. NEW
JERSEY, 211 U.S. 78, 100. 

FN5  PALKO V. CONNECTICUT, 302 U.S. 319, 323, 325, 326.  CF. FRANCIS
V. RESWEBER, 329 U.S. 459, 463; ADAMSON V. CALIFORNIA, 332 U.S. 46,
53. 

FN6  42 AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS BULLETIN 96. 
COMPARE THE RIGHTS AND RESPONSIBILITIES OF UNIVERSITIES AND THEIR
FACULTIES, ASSOCIATION OF AMERICAN UNIVERSITIES, MARCH 24, 1953, III: 

"AS IN ALL ACTS OF ASSOCIATION, THE PROFESSOR ACCEPTS CONVENTIONS
WHICH BECOME MORALLY BINDING.  ABOVE ALL, HE OWES HIS COLLEAGUES IN THE
UNIVERSITY COMPLETE CANDOR AND PERFECT INTEGRITY, PRECLUDING ANY KIND
OF CLANDESTINE OR CONSPIRATORIAL ACTIVITIES.  HE OWES EQUAL CANDOR TO
THE PUBLIC.  IF HE IS CALLED UPON TO ANSWER FOR HIS CONVICTIONS IT IS
HIS DUTY AS A CITIZEN TO SPEAK OUT.  IT IS EVEN MORE DEFINITELY HIS
DUTY AS A PROFESSOR.  REFUSAL TO DO SO, ON WHATEVER LEGAL GROUNDS,
CANNOT FAIL TO REFLECT UPON A PROFESSION THAT CLAIMS FOR ITSELF THE
FULLEST FREEDOM TO SPEAK AND THE MAXIMUM PROTECTION OF THAT FREEDOM
AVAILABLE IN OUR SOCIETY.  IN THIS RESPECT, INVOCATION OF THE FIFTH
AMENDMENT PLACES UPON A PROFESSOR A HEAVY BURDEN OF PROOF OF HIS
FITNESS TO HOLD A TEACHING POSITION AND LAYS UPON HIS UNIVERSITY AN
OBLIGATION TO REEXAMINE HIS QUALIFICATIONS FOR MEMBERSHIP IN ITS
SOCIETY. 

     *         *     *         *         * 

"  ...  WHEN THE POWERS OF LEGISLATIVE INQUIRY ARE ABUSED, THE REMEDY
DOES NOT LIE IN NONCOOPERATION OR DEFIANCE; IT IS TO BE SOUGHT THROUGH
THE NORMAL CHANNELS OF INFORMED PUBLIC OPINION." 

FN7  42 AMERICAN ASSN. OF UNIVERSITY PROFESSORS BULLETIN 61-94. 

FN8  IN THE MATTER OF THE INVESTIGATION OF THE DEPARTMENTS OF THE
GOVERNMENT OF THE CITY OF NEW YORK, FINAL REPORT BY SAMUEL SEABURY,
DECEMBER 27, 1932, PP. 9-10. 

MR. JUSTICE HARLAN, DISSENTING. 

I DISSENT BECAUSE I THINK THE COURT HAS MISCONCEIVED THE NATURE OF
SEC. 903 AS CONSTRUED AND APPLIED BY THE NEW YORK COURT OF APPEALS, AND
HAS UNDULY CIRCUMSCRIBED THE POWER OF THE STATE TO ENSURE THE
QUALIFICATIONS OF ITS TEACHERS. 

AS I UNDERSTAND MR. JUSTICE CLARK'S OPINION, THE COURT REGARDS SEC.
903 AS RAISING SOME SORT OF PRESUMPTION OF GUILT FROM DR. SLOCHOWER'S
CLAIM OF PRIVILEGE.  THAT IS NOT THE WAY THE COURT OF APPEALS CONSTRUED
THE STATUTE.  ON THE CONTRARY, THAT COURT SAID:  "WE DO NOT PRESUME, OF
COURSE, THAT THESE PETITIONERS (ONE OF WHOM WAS DR. SLOCHOWER) BY THEIR
ACTION HAVE SHOWN CAUSE TO BE DISCHARGED UNDER THE FEINBERG LAW (L.
1949, CH. 360) SINCE NO INFERENCE OF MEMBERSHIP IN THE COMMUNIST PARTY
MAY BE DRAWN FROM THE ASSERTION OF ONE'S PRIVILEGE AGAINST SELF
INCRIMINATION."  (FN1)  SINCE SEC. 903 IS INOPERATIVE IF EVEN
INCRIMINATING ANSWERS ARE GIVEN, IT IS APPARENT THAT IT IS THE EXERCISE
OF THE PRIVILEGE ITSELF WHICH IS THE BASIS FOR THE DISCHARGE, QUITE
APART FROM ANY INFERENCE OF GUILT.  THUS THE COURT OF APPEALS COULD SAY
THAT "THE ASSERTION OF THE PRIVILEGE AGAINST SELF INCRIMINATION IS
EQUIVALENT TO A RESIGNATION."  (FN2)  IT IS ALSO CLEAR THAT THE BOARD
OF EDUCATION'S DISCHARGE OF DR. SLOCHOWER WAS ON THIS SAME PREMISE. 
THE QUESTION THIS CASE PRESENTS THEREFORE, IS NOT WHETHER ANY
INFERENCES CAN CONSTITUTIONALLY BE DRAWN FROM A CLAIM OF PRIVILEGE, BUT
WHETHER A STATE VIOLATES DUE PROCESS WHEN IT MAKES A CLAIM OF PRIVILEGE
GROUNDS FOR DISCHARGE.    IN EFFECT, WHAT NEW YORK HAS DONE IS TO SAY
THAT IT WILL NOT EMPLOY TEACHERS WHO REFUSE TO COOPERATE WITH PUBLIC
AUTHORITIES WHEN ASKED QUESTIONS RELATING TO OFFICIAL CONDUCT.  DOES
SUCH A STATUTE BEAR A REASONABLE RELATION TO NEW YORK'S INTEREST IN
ENSURING THE QUALIFICATIONS OF ITS TEACHERS?  THE MAJORITY SEEMS TO
DECIDE THAT IT DOES NOT.  THIS COURT HAS ALREADY HELD, HOWEVER, THAT A
STATE MAY PROPERLY MAKE KNOWING MEMBERSHIP IN AN ORGANIZATION DEDICATED
TO THE OVERTHROW OF THE GOVERNMENT BY FORCE A GROUND FOR
DISQUALIFICATION FROM PUBLIC SCHOOL TEACHING.  ADLER V. BOARD OF
EDUCATION, 342 U.S. 485.  A REQUIREMENT THAT PUBLIC SCHOOL TEACHERS
SHALL FURNISH INFORMATION AS TO THEIR PAST OR PRESENT MEMBERSHIP IN THE
COMMUNIST PARTY IS A RELEVANT STEP IN THE IMPLEMENTATION OF SUCH A
STATE POLICY, AND A TEACHER MAY BE DISCHARGED FOR REFUSING TO COMPLY
WITH THAT REQUIREMENT.  GARNER V. LOS ANGELES BOARD, 341 U.S. 716. 
MOREOVER, I THINK THAT A STATE MAY JUSTIFIABLY CONSIDER THAT TEACHERS
WHO REFUSE TO ANSWER QUESTIONS CONCERNING THEIR OFFICIAL CONDUCT ARE NO
LONGER QUALIFIED FOR PUBLIC SCHOOL TEACHING, ON THE GROUND THAT THEIR
REFUSAL TO ANSWER JEOPARDIZES THE CONFIDENCE THAT THE PUBLIC SHOULD
HAVE IN ITS SCHOOL SYSTEM.  ON EITHER VIEW OF THE STATUTE, I THINK DR.
SLOCHOWER'S DISCHARGE DID NOT VIOLATE DUE PROCESS. 

IT MAKES NO DIFFERENCE THAT THE QUESTION WHICH DR. SLOCHOWER REFUSED
TO ANSWER WAS PUT TO HIM BY A FEDERAL RATHER THAN A STATE BODY.  THE
AUTHORITY OF THE SUBCOMMITTEE TO ASK THE QUESTION IS NOT CONTROVERTED. 
WHILE AS AN ORIGINAL MATTER I WOULD BE DOUBTFUL WHETHER SEC. 903 WAS
INTENDED TO APPLY TO FEDERAL INVESTIGATIONS, THE COURT OF APPEALS HAS
RULED OTHERWISE, AND ITS INTERPRETATION IS BINDING ON US.  DR.
SLOCHOWER CANNOT DISCRIMINATE BETWEEN FORUMS IN DECIDING WHETHER OR NOT
TO ANSWER A PROPER AND RELEVANT QUESTION, IF THE STATE REQUIRES HIM TO
ANSWER BEFORE EVERY LAWFULLY CONSTITUTED BODY.  HERE, THE INFORMATION
SOUGHT TO BE ELICITED FROM DR. SLOCHOWER COULD HAVE BEEN CONSIDERED BY
STATE AUTHORITIES IN REVIEWING DR. SLOCHOWER'S QUALIFICATIONS, AND THE
EFFECT OF HIS CLAIM OF PRIVILEGE ON THE PUBLIC CONFIDENCE IN ITS SCHOOL
SYSTEM WAS AT LEAST AS GREAT AS IT WOULD HAVE BEEN HAD HIS REFUSAL TO
ANSWER BEEN BEFORE A STATE LEGISLATIVE COMMITTEE. 

THERE IS SOME EVIDENCE THAT DR. SLOCHOWER HAD ALREADY ANSWERED,
BEFORE A STATE COMMITTEE, THE SAME QUESTION WHICH HE REFUSED TO ANSWER
BEFORE THE CONGRESSIONAL SUBCOMMITTEE.  (FN3)  EVEN ASSUMING THAT NEW
YORK ALREADY HAD THE INFORMATION, I CANNOT SEE HOW THAT WOULD PREVENT
NEW YORK FROM CONSTITUTIONALLY APPLYING SEC. 903 TO THIS CLAIM OF
PRIVILEGE.  APART FROM OTHER CONSIDERATIONS, WHO CAN TELL WHETHER DR.
SLOCHOWER WOULD HAVE ANSWERED THE QUESTION THE SAME WAY AS HE HAD
BEFORE? 

ON THIS RECORD I WOULD AFFIRM THE DECISION OF THE COURT OF APPEALS. 
A DIFFERENT QUESTION WOULD BE PRESENTED UNDER THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT.  BUT THAT QUESTION WAS
NOT RAISED BELOW, AND IS THEREFORE NOT OPEN HERE.  DEWEY V. DES MOINES,
173 U.S. 193. 

FN1  306 N.Y. 532, 538, 119 N.E.2D 373, 377. 

FN2  IBID. 

FN3 AT THE SENATE SUBCOMMITTEE HEARING, IN RESPONSE TO SENATOR
FERGUSON'S INQUIRY WHETHER OR NOT DR. SLOCHOWER HAD "EVER" ANSWERED A
QUESTION CONCERNING COMMUNIST PARTY MEMBERSHIP IN 1940 OR 1941, DR.
SLOCHOWER REPLIED:  "YES, I DID ANSWER IT." 
..END :




ARMSTRONG V. ARMSTRONG 350 U.S. 568 


NO. 38.  ARGUED NOVEMBER 15, 1955 - DECIDED APRIL 9, 1956 - 162 OHIO ST.
406, 123 N.E.2D 267, AFFIRMED. 


PETITIONER, A RESIDENT OF FLORIDA, OBTAINED THERE A DIVORCE FROM HIS
WIFE, WHO HAD SEPARATED FROM HIM AND GONE TO OHIO, WHERE SHE HAD
ESTABLISHED A RESIDENCE.  THE SERVICE OF PROCESS ON HER WAS
CONSTRUCTIVE ONLY, SHE DID NOT APPEAR, AND THE FLORIDA COURT DECREED
THAT "NO AWARD OF ALIMONY BE MADE" TO HER.  LATER, THE WIFE SUED IN
OHIO FOR DIVORCE AND ALIMONY, AND PETITIONER APPEARED AND SET UP THE
FLORIDA DIVORCE.  THE OHIO COURT DENIED A DIVORCE BECAUSE OF THE PRIOR
FLORIDA DECREE, BUT GRANTED THE WIFE ALIMONY.  HELD: THE FLORIDA COURT
DID NOT ADJUDICATE THE WIFE'S RIGHT TO ALIMONY, AND THE OHIO COURT
THEREFORE DID NOT FAIL TO GIVE FULL FAITH AND CREDIT TO THE FLORIDA
DECREE.  PP. 568-572. 

ARMSTRONG V. ARMSTRONG ET AL. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, WHILE RESIDING IN DADE COUNTY, FLORIDA, FILED A SUIT
FOR DIVORCE FROM HIS WIFE, WHO HAD SEPARATED FROM HIM AND GONE TO OHIO,
WHERE SHE HAD ESTABLISHED HER RESIDENCE.  THE WIFE WAS NOT PERSONALLY
SERVED, NOR DID SHE APPEAR IN PERSON OR BY ATTORNEY IN THE FLORIDA
SUIT.  SERVICE ON HER WAS CONSTRUCTIVE ONLY.  A DIVORCE DECREE WAS
GRANTED PETITIONER BY THE FLORIDA COURT, AND HE CONTENDS THAT THAT
COURT ALSO DENIED ALIMONY TO THE RESPONDENT. 

LATER, THE RESPONDENT WIFE INSTITUTED A SUIT IN OHIO FOR DIVORCE AND
FOR ALIMONY.  THE PETITIONER APPEARED AND SET UP THE DIVORCE OBTAINED
IN FLORIDA.  THE OHIO COURT FOUND THAT THE RESPONDENT HAD ESTABLISHED
GROUNDS FOR DIVORCE IN OHIO BUT DENIED THE DIVORCE BECAUSE FLORIDA HAD
ALREADY DECREED A DIVORCE TO THE PETITIONER.  THE OHIO COURT PROCEEDED
TO PASS ON THE QUESTION OF ALIMONY AND GRANTED THE WIFE ALIMONY, TAKING
INTO ACCOUNT THE TOTAL PROPERTY OWNED BY THE PETITIONER.  THE
PETITIONER APPEALED TO THE COURT OF APPEALS, 99 OHIO APP. 7, 130 N.E.2D
710, AND THEN TO THE SUPREME COURT OF OHIO, WHICH AFFIRMED THE
JUDGMENTS OF THE LOWER COURTS.  162 OHIO ST. 406, 123 N.E.2D 267. 
PETITIONER ARGUED AND CONTENDS HERE THAT THE OHIO COURTS HAVE DENIED
FULL FAITH AND CREDIT TO THE FLORIDA DECREE.  WE GRANTED CERTIORARI. 
349 U.S. 915. 

THE SOLE QUESTION PRESENTED BY THE PETITION FOR CERTIORARI WAS
WHETHER THE OHIO COURTS WERE REQUIRED TO GIVE FULL FAITH AND CREDIT TO
THE EX PARTE FLORIDA DIVORCE DECREE, WHICH PETITIONER ALLEGES NOT ONLY
GRANTED HIM A DIVORCE BUT ALSO DECREED THAT THE WIFE WAS NOT ENTITLED
TO ALIMONY.  AS WE INTERPRET THE FLORIDA DEDREE, HOWEVER, THE FLORIDA
COURT DID NOT PURPORT TO ADJUDICATE THE ABSENT WIFE'S RIGHT TO
ALIMONY.  THE OHIO COURTS, THEREFORE, IN AWARDING ALIMONY TO THE WIFE,
DID NOT IN FACT FAIL TO GIVE FULL FAITH AND CREDIT TO THE FLORIDA
DECREE.  ACCORDINGLY, WE DO NOT REACH THE CONSTITUTIONAL QUESTION
SOUGHT TO BE PRESENTED.  BUT EVEN IF THERE IS DOUBT AS TO THE MEANING
OF THE FLORIDA DECREE, WE SHOULD CONSTRUE ITS ACTION AS A REFUSAL TO
PASS ON THE QUESTION OF ALIMONY AND THUS AVOID THE CONSTITUTIONAL
QUESTION AS TO ITS POWER TO DO SO. 

THE FLORIDA COURT FOUND THAT MRS. ARMSTRONG "HAS NOT COME INTO THIS
COURT IN GOOD FAITH OR MADE ANY CLAIM TO THE EQUITABLE CONSCIENCE OF
THE COURT AND HAS MADE NO SHOWING OF ANY NEED ON HER PART FOR ALIMONY. 
IT IS, THEREFORE, SPECIFICALLY DECREED THAT NO AWARD OF ALIMONY BE MADE
TO THE DEFENDANT  ...  ."  TAKEN LITERALLY, THAT LANGUAGE MEANS ONLY
THAT, FOR THE REASONS IT GAVE, THE COURT WOULD REFRAIN FROM MAKING AN
AFFIRMATIVE AWARD OF ALIMONY TO THE WIFE, NOT THAT IT ADJUDICATED IN
FAVOR OF THE HUSBAND THAT HIS WIFE WAS NOT ENTITLED TO ALIMONY.  THE
HUSBAND'S BILL OF COMPLAINT DID NOT ASK FOR GREATER RELIEF.  IT OFFERED
TO SHOW THAT MRS. ARMSTRONG'S INTEREST IN JOINTLY HELD PROPERTY WAS
"AMPLE TO SUPPORT THE DEFENDANT AND THAT SHE HAS NO FURTHER NEED OF
ALIMONY."  THE PURPOSE OF THIS OFFER, HOWEVER, WAS REVEALED BY THE NEXT
SENTENCE OF THE COMPLAINT:  "NEVERTHELESS THE PLAINTIFF HEREBY OFFERS
TO DO EQUITY AND TO ABIDE BY SUCH ORDERS OR DECREES, WITH REFERENCE TO
THE SETTLEMENT OF THE PROPERTY AFFAIRS, AS TO THIS COURT MAY BE DEEMED
EQUITABLE."  THUS THE HUSBAND DID NOT SEEK A DECREE HOLDING THE WIFE
NOT ENTITLED TO ALIMONY BUT RATHER MERELY SUBMITTED TO THE COURT'S
JURISDICTION TO CONDITION ITS GRANT OF DIVORCE TO HIM UPON AN AWARD OF
ALIMONY TO HIS WIFE.  THE PRAYER FOR RELIEF WAS FULLY SATISFIED BY THE
DECISION THAT PROTECTION OF THE ABSENT WIFE DID NOT REQUIRE THE COURT
TO FIX ALIMONY BEFORE GRANTING THE DIVORCE. 

THE FLORIDA MASTER'S REPORT IS CONFIRMATORY OF THE LIMITED SCOPE OF
THE DECREE.  THE MASTER STATED THAT "THE QUESTION OF THE WIFE'S
ALIMONY, IF ANY, CANNOT BE DETERMINED AT THIS STAGE OF THE PROCEEDING,"
POINTING OUT THAT MOST OF THE MARITAL PROPERTY WAS IN THE WIFE'S
POSSESSION IN OHIO AND WAS THE SUBJECT MATTER OF LITIGATION PENDING
THERE.  HE ACCORDINGLY FOUND THAT "THE DEFENDANT IS NOT ENTITLED TO
RECEIVE ALIMONY  ...  UNDER THE FACTS AND CIRCUMSTANCES PRESENTED IN
THIS CASE" AND RECOMMENDED "THAT NO AWARD OF ALIMONY BE MADE."  THE
MASTER'S RECOMMENDATION MEANT NO MORE THAN THAT THE QUESTION OF ALIMONY
SHOULD NOT BE DECIDED BECAUSE THE WIFE HAD IN HER POSSESSION PROPERTY
ADEQUATE TO MEET HER IMMEDIATE NEEDS, AND THE UNRESOLVED LITIGATION
MADE IT IMPOSSIBLE TO DETERMINE HER FUTURE NEEDS.  PRESUMABLY, THE
COURT'S DECREE MEANT NO MORE WHEN IT ADOPTED IN TERMS THE MASTER'S
RECOMMENDATION THAT "NO AWARD OF ALIMONY BE MADE."  LIKE THE MASTER'S
REPORT, THE DECREE EXPRESSLY RECOGNIZED THAT THE PARTIES' PROPERTY
RIGHTS DEPENDED UPON THE OUTCOME OF THE PENDING LITIGATION IN OHIO AND
THAT THE WIFE HAD NOT SHOWN ANY NEED FOR ALIMONY. 

WHEN THE FLORIDA COURT SAID, "IT IS, THEREFORE, SPECIFICALLY DECREED
THAT NO AWARD OF ALIMONY BE MADE TO THE DEFENDANT," IT RECOGNIZED THAT
NO ISSUE OF ALIMONY SHOULD BE DECIDED BY IT.  THE COURT SIMPLY SAID
THAT NO AWARD OF ALIMONY BE MADE - A PURELY NEGATIVE ASSERTION THAT IT
WOULD NOT PASS ON THE QUESTION. 

IT IS TRUE THAT THE DECREE "THAT NO AWARD OF ALIMONY BE MADE" WAS
FOLLOWED IN THE SAME SENTENCE BY A DECLARATION, BASED ON THE COURT'S
AND MASTER'S VIEW OF FLORIDA PROPERTY LAW, QUIETING TITLE IN THE
HUSBAND TO CERTAIN FLORIDA REAL PROPERTY.  AT MOST, HOWEVER, THE FACT
THAT BOTH MATTERS WERE DEALT WITH IN A SINGLE SENTENCE SUGGESTS ONLY
THAT THE COURT MIGHT HAVE RESERVED ALIMONY OUT OF THAT SPECIFIC
PROPERTY HAD IT CONCLUDED THAT SUCH ACTION WAS NECESSARY TO PROTECT THE
WIFE'S INTERESTS.  THAT IT DID NOT DO SO IS CONSISTENT WITH OUR
CONCLUSION THAT THE FLORIDA COURT DID NOT MORE THAN REFRAIN FROM
AWARDING ALIMONY AT THAT TIME. 

THERE WAS A VALID DECREE IN FLORIDA DISSOLVING THE BONDS OF
MATRIMONY.  THERE WAS NO DECREE AS TO ALIMONY.  OHIO HAD PERSONAL
SERVICE ON BOTH PARTIES IN A SUIT FOR DIVORCE AND ALIMONY BROUGHT THERE
BY MRS. ARMSTRONG.  THE COURT DENIED HER A DECREE OF DIVORCE BECAUSE
FLORIDA HAD ALREADY DISSOLVED THE BONDS OF MATRIMONY.  THE OHIO COURT
FOUND THAT, BUT FOR THE DECREE IN FLORIDA, MRS. ARMSTRONG HAD
ESTABLISHED GROUNDS FOR DIVORCE IN THE OHIO SUIT.  IT CONSIDERED THAT
THE MATTER BEFORE IT WAS NOT A DIVISION OF PROPERTY, BUT AN APPLICATION
FOR ALIMONY, AND IT PROCEEDED TO HEAR EVIDENCE ON THAT BASIS AND
FINALLY ENTERED A PERSONAL JUDGMENT AGAINST THE DEFENDANT HUSBAND FOR
ALIMONY.  THE OHIO COURT, WHICH HAD COMPLETE JURISDICTION OF BOTH
PARTIES AND THE CAUSE OF ACTION, ENTERED A DECREE AS TO ALIMONY ONLY,
WHICH DECREE SEEMS CLEARLY AUTHORIZED BY THE OHIO CASES.  SLAPP V.
SLAPP, 143 OHIO ST. 105, 54 N.E.2D 153; COX V. COX, 19 OHIO ST. 502. 
THE FLORIDA JUDGMENT WAS GIVEN FULL FAITH AND CREDIT BY OHIO AS FAR AS
THE JUDGMENT IN FLORIDA WENT, AND NO OTHER QUESTIONS ARE PRESENTED
HERE. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE FRANKFURTER, JOINING THE OPINION OF THE COURT. 

IT IS, OF COURSE, DESIRABLE TO HAVE A COURT OPINION, IF ONE CAN BE
ACHIEVED WITHOUT STRAINING ONE'S CONSCIENCE.  I AM SUFFICIENTLY IN
AGREEMENT WITH MR. JUSTICE MINTON'S CONSTRUCTION OF THE FLORIDA DECREE
TO BE ABLE TO JOIN HIM. 

ON MY STUDY OF THE RECORD, I WOULD DISMISS THE WRIT AS IMPROVIDENTLY
GRANTED.  AND FOR THESE REASONS.  AFTER A CASE HAS BEEN HEARD ON THE
MERITS, IT IS TO BE DISPOSED OF ON THE PRECISE ISSUE THAT FULL STUDY OF
THE CASE DISCLOSES, AND NOT ON THE BASIS OF THE PRELIMINARY EXAMINATION
OF THE QUESTIONS THAT WERE URGED IN THE PETITION FOR CERTIORARI.  DUE
REGARD FOR THE WORKING OF THE CERTIORARI SYSTEM REQUIRES THIS.  IN VIEW
OF THE FACT THAT ABOUT 1,300 APPLICATIONS WERE MADE LAST TERM FOR LEAVE
TO BE HEARD (AND THIS IS A FAIR AVERAGE OF THE VOLUME OF THE COURT'S
BUSINESS), DETERMINATION DURING THIS SIFTING PROCESS OF THE
JURISDICTIONAL MERITS IN ALL THESE 1,300 CASES CAN HARDLY BE EXPECTED. 
THEORY AND PRACTICE ALIKE REJECT ANY SUCH NOTION.  THE INEVITABLY
CURSORY CONSIDERATION THAT IS NORMALLY GIVEN IN A CASE ON THE
PRELIMINARY ROUND PRECLUDES THE ASSUMPTION THAT A TENTATIVE FINDING OF
A FEDERAL QUESTION WILL SURVIVE THE THOROUGH STUDY OF THE RECORD WHICH
CONSIDERATION OF A CASE ON THE MERITS IMPLIES.  THEREFORE, IT IS THAT
CASES HAVE AGAIN AND AGAIN BEEN DISMISSED FOR WANT OF JURISDICTION,
I.E., A SUBSTANTIAL FEDERAL QUESTION WAS FOUND WANTING; ON THE
CONTRARY, IT BECAME CLEAR THAT THE STATE COURT JUDGMENT RESTED ON AN
ADEQUATE STATE GROUND. 

THE PETITION FOR WRIT OF CERTIORARI IN THIS CASE VIGOROUSLY ARGUED
THAT: 

"THE SOLE QUESTION IS WHETHER THE COURTS OF OHIO, UNDER ARTICLE IV OF
THE CONSTITUTION OF THE UNITED STATES, ARE COMPELLED TO GIVE FULL FAITH
AND CREDIT TO THE ENTIRE DECREE, GRANTING A DIVORCE, AND DENYING
ALIMONY, RENDERED BY THE COURT IN FLORIDA, THE MATRIMONIAL DOMICILE OF
THE PARTIES, FOLLOWING THE DECISION OF THOMPSON V. THOMPSON, 226 U.S.
551." 

THE REFERENCES TO THE FLORIDA DECREE IN THE OPINION OF THE OHIO
SUPREME COURT - THE TWO DOCUMENTS ARE HARDLY TO BE DEEMED CONSPICUOUSLY
LUCID - WARRANTED, WITHOUT MORE, A BELIEF THAT THE CASE DID PRESENT THE
QUESTION FORMULATED BY PETITIONER.  SUCH A QUESTION WOULD, NO DOUBT,
RAISE AN IMPORTANT PROBLEM IN THE CONSTRUCTION OF THE FULL FAITH AND
CREDIT CLAUSE. 

BUT THE COURSE OF THE ORAL ARGUMENT, FOR SUCH IS ONE OF ITS
FUNCTIONS, AND AN EXACTING SCRUTINY OF THE RECORD, FOR SUCH IS THE
REQUIREMENT OF PLENARY CONSIDERATION OF A CASE, PUT IN A VERY DIFFERENT
LIGHT THE DECREE OF THE FLORIDA COURT AND THEREBY THE SIGNIFICANCE OF
THE LITIGATION IN OHIO. 

A STUDY OF THE FLORIDA DECREE, A PORTION OF WHICH IS SET OUT IN THE
MARGIN, (FN1) IN CONJUNCTION WITH FLORIDA CASE LAW (FN2) DEMONSTRATES,
I BELIEVE, THAT FLORIDA EXPRESSLY DISAVOWED ANY ADJUDICATION REGARDING
CLAIMS TO AND IN PROPERTY SITUATED IN OHIO, THE VERY PROPERTIES WHICH
ARE THE SUBJECT MATTER OF THE CHALLENGED OHIO DECREE. 

THUS, THE SOLE QUESTION THAT SURVIVES IS THE POWER OF OHIO, AS A
MATTER OF ITS OWN POLICY, TO DEFINE RIGHTS IN PROPERTY SITUATED IN OHIO
IN THE CIRCUMSTANCES OF THIS CASE.  A QUESTION OF DUE PROCESS MIGHT BE
RAISED, THOUGH NOT SUCCESSFULLY.  (BOTH THE REAL PROPERTY AND
SECURITIES WHICH HAD THEIR LOCUS IN OHIO WERE SUBJECT TO OHIO'S CONTROL
IN THAT BOTH ITEMS CONSTITUTED "PROPERTY WITHIN THE STATE."  PENNINGTON
V. FOURTH NATIONAL BANK, 243 U.S. 269, 271.)  IN ANY EVENT, IT WAS NOT
RAISED, AND THE CLAIM UNDER THE FULL FAITH AND CREDIT CLAUSE HAS
EVAPORATED, BECAUSE OHIO MERELY DEALT WITH PROPERTY WITHIN ITS BORDERS
WHICH FLORIDA HAD NOT PURPORTED TO AFFECT. 

OF COURSE, WE HAVE TO GO THROUGH ALL THIS REASONING TO DETERMINE
WHETHER A SUBSTANTIAL FEDERAL QUESTION WAS RAISED BY REASON OF OHIO'S
DISREGARD OF FLORIDA'S DECREE.  THE COURT NOT INFREQUENTLY IS REQUIRED
TO FIND ITS WAY THROUGH A TANGLED OR CONFUSED RECORD IN ORDER TO
DETERMINE WHETHER A STATE COURT JUDGMENT TURNED ON A STATE GROUND OR ON
A FEDERAL GROUND.  IN SHORT, THE COURT HAS JURISDICTION TO DECIDE
WHETHER IT HAS JURISDICTION.  BUT WHEN ADEQUATE ANALYSIS DISCLOSES THAT
A STATE JUDGMENT AMPLY RESTS ON A STATE GROUND, WE ARE BARRED FROM
PROCEEDING TO THE MERITS OF THE ALLEGED FEDERAL QUESTION.  THE
APPROPRIATE DISPOSITION IS TO DISMISS THE CASE FOR WANT OF
JURISDICTION. 

FN1  "THIS COURT TAKES RECOGNITION OF THE FACT THAT LITIGATION IS NOW
PENDING IN THE STATE OF OHIO RELATIVE TO THE RECOVERY OF  ...  STOCKS
AND BONDS AS WELL AS THE SETTLEMENT OF OTHER MATTERS CONCERNING
PROPERTY RIGHTS BETWEEN THE PARTIES.  THIS COURT RECOGNIZES THAT THE
COURTS OF OHIO WILL HAVE THE ULTIMATE DETERMINATION OF THE QUESTION OF
PROPERTY RIGHTS WHERE THE PROPERTY ITSELF IS IN THE STATE OF OHIO  ...
." 

FN2  COMPARE BURKHART V. CIRCUIT COURT, ELEVENTH JUDICIAL CIRCUIT,
146 FLA. 457, 1 SO. 2D 872, AND LUCIAN V. SO. OHIO SAVINGS BANK & TRUST
CO., 156 FLA. 370, 23 SO. 2D 674, WITH PAWLEY V. PAWLEY, 46 SO. 2D 464
(FLA.), AND SORRELLS V. SORRELLS, 82 SO. 2D 684 (FLA.). 

(FOR CONCURRING OPINION OF MR. JUSTICE BLACK, JOINED BY THE CHIEF
JUSTICE, MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK, SEE NEXT PAGE.) 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS,
AND MR. JUSTICE CLARK JOIN, CONCURRING. 

THE OPINION OF THE COURT TAKES THE POSITION THAT THE FLORIDA COURT
DID NOT ADJUDICATE MRS. ARMSTRONG'S RIGHT TO ALIMONY.  WE CANNOT
AGREE.  IN THE HUSBAND'S FLORIDA COMPLAINT HE ALLEGED THAT HIS WIFE'S
PROPERTY WAS "AMPLE TO SUPPORT THE DEFENDANT AND THAT SHE HAS NO
FURTHER NEED OF ALIMONY OR PROPERTY SETTLEMENT."  THE FLORIDA COURT
EXPRESSLY HELD THAT IT HAD JURISDICTION OVER BOTH PARTIES AND OVER THE
SUBJECT MATTER OF THE COMPLAINT.  IT THEN PROCEEDED TO FIND THAT THE
WIFE WAS AT FAULT IN LEAVING HER HUSBAND AND THE "MATRIMONIAL
DOMICILE."  THE COURT EVEN SUGGESTED THAT MRS. ARMSTRONG WAS GUILTY OF
A CRIMINAL ACT IN TAKING SOME OF HER HUSBAND'S MONEY AND SECURITIES TO
OHIO.   THE DECREE CONTINUED: "THIS COURT, THEREFORE, FINDS THE
DEFENDANT HAS NOT COME INTO THIS COURT IN GOOD FAITH OR MADE ANY CLAIM
TO THE EQUITABLE CONSCIENCE OF THE COURT AND HAS MADE NO SHOWING OF ANY
NEED ON HER PART FOR ALIMONY.  IT IS, THEREFORE, SPECIFICALLY DECREED
THAT NO AWARD OF ALIMONY BE MADE TO THE DEFENDANT  ...  ."  THIS WAS
PLAINLY A DENIAL OF ALIMONY, NOT ON THE GROUND THAT THE COURT WAS
LEAVING THE MATTER OPEN BUT BECAUSE THE JUDGE THOUGHT THE WIFE SHOULD
NOT HAVE ALIMONY.  (FN1)    WE AGREE WITH THE MAJORITY THAT THE OHIO
DECREE WAS AN ALIMONY JUDGMENT AND NOT A DIVISION OF PROPERTY.  THUS IS
OUR VIEW THERE IS A DIRECT CONFLICT BETWEEN THAT DECREE AND THE DECREE
OF THE FLORIDA COURT DENYING ALIMONY TO THE WIFE.  WE THEREFORE REACH
THE CONSTITUTIONAL QUESTION WHETHER THE OHIO COURT WAS JUSTIFIED IN
DENYING FULL FAITH AND CREDIT TO THE FLORIDA DECREE.    WE BELIEVE THAT
OHIO WAS NOT COMPELLED TO GIVE FULL FAITH AND CREDIT TO THE FLORIDA
DECREE DENYING ALIMONY TO MRS. ARMSTRONG.  OUR VIEW IS BASED ON THE
ABSENCE OF POWER IN THE FLORIDA COURT TO RENDER A PERSONAL JUDGMENT
AGAINST MRS. ARMSTRONG DEPRIVING HER OF ALL RIGHT TO ALIMONY ALTHOUGH
SHE WAS A NONRESIDENT OF FLORIDA, HAD NOT BEEN PERSONALLY SERVED WITH
PROCESS IN THAT STATE, AND HAD NOT APPEARED AS A PARTY.  IT HAS BEEN
THE CONSTITUTIONAL RULE IN THIS COUNTRY AT LEAST SINCE PENNOYER V.
NEFF, 95 U.S. 714, DECIDED IN 1878, THAT NONRESIDENTS CANNOT BE
SUBJECTED TO PERSONAL JUDGMENTS WITHOUT SUCH SERVICE OR APPEARANCE.  WE
HELD IN ESTIN V. ESTIN, 334 U.S. 541, THAT AN ALIMONY JUDGMENT WAS THIS
KIND OF "PERSONAL JUDGMENT."  SEE ALSO KREIGER V. KREIGER, 334 U.S.
555; BARBER V. BARBER, 21 HOW.  582, 588; BARRETT V. FAILING, 111 U.S.
523, 525.  THE ESTIN CASE WAS MUCH LIKE THIS ONE.  THERE, AFTER THE
WIFE HAD OBTAINED A SEPARATION AND PERMANENT ALIMONY DECREE IN NEW
YORK, THE HUSBAND WENT TO NEVADA AND OBTAINED A DIVORCE.  IN ACCORD
WITH OUT PREVIOUS HOLDING IN WILLIAMS V. NORTH CAROLINA, 317 U.S. 287,
WE HELD THAT THE NEVADA DIVORCE WAS VALID AND MUST BE GIVEN FULL FAITH
AND CREDIT BY NEW YORK EVEN THOUGH RENDERED WITHOUT PERSONAL SERVICE ON
THE WIFE.  IT WAS ARGUED THAT NEW YORK ALSO HAD TO RECOGNIZE NEVADA'S
RULE OF LAW THAT THE DISSOLUTION OF A MARRIAGE PUT AN END TO A SUPPORT
ORDER.  WE HELD, HOWEVER, THAT NEVADA COULD NOT ADJUDICATE RIGHTS OF
THE WIFE UNDER THE NEW YORK JUDGMENT BECAUSE SHE HAD NOT BEEN
PERSONALLY SERVED WITH PROCESS AND DID NOT APPEAR IN THE NEVADA
PROCEEDINGS.  334 U.S., AT 547-549.  THE CONSIDERATIONS SUPPORTING THAT
HOLDING ARE APPLICABLE HERE.  THE FACT THAT MRS. ESTIN'S CLAIM TO
SUPPORT HAD BEEN REDUCED TO JUDGMENT PRIOR TO DIVORCE WHILE MRS.
ARMSTRONG'S HAD NOT IS NOT A MEANINGFUL DISTINCTION.  MRS. ARMSTRONG'S
RIGHT TO SUPPORT BEFORE JUDGMENT, LIKE MRS. ESTIN'S RIGHT TO SUPPORT
AFTER JUDGMENT, IS THE KIND OF PERSONAL RIGHT WHICH CANNOT BE
ADJUDICATED WITHOUT PERSONAL SERVICE.  CF. MAY V. ANDERSON, 345 U.S.
528. 

THE HUSBAND HERE SEEKS TO DISTINGUISH THE ESTIN CASE ON THE GROUND
THAT THERE THE HUSBAND LEFT THE "MATRIMONIAL DOMICILE" AND ESTABLISHED
A RESIDENCE ELSEWHERE, WHILE HERE THE HUSBAND KEPT HIS DOMICILE IN
FLORIDA AND THE WIFE FLED FROM HIM.  HE ARGUES, AS THE FLORIDA COURT
HELD, THAT IT WAS IMPOSSIBLE AS A MATTER OF LAW FOR MRS. ARMSTRONG TO
OBTAIN A NEW DOMICILE SEPARATE AND APART FROM THAT OF HER HUSBAND.  HE
BASES THIS ARGUMENT ON THE FLORIDA COURT'S FINDING ON EX PARTE EVIDENCE
THAT FLORIDA, WHERE THE COUPLE HAD RESIDED DURING A CONSIDERABLE PART
OF THEIR MARRIAGE, WAS THE "MATRIMONIAL DOMICILE," AND THAT THE WIFE
HAD LEFT HER HOME IN FLORIDA WITHOUT CAUSE.  ON THIS PREMISE, THE
FLORIDA COURT HELD THAT SHE "DID NOT HAVE THE RIGHT TO SEPARATE AND
CLAIM A SEPARATE LEGAL DOMICILE AND IN TRUTH AND IN FACT, HER DOMICILE
WAS THAT OF HER HUSBAND."  THE FICTION THAT A WOMAN CANNOT HAVE A
SEPARATE "DOMICILE" FROM THAT OF HER HUSBAND IS A RELIC OF THE OLD
DISCREDITED IDEA THAT WOMEN MUST ALWAYS PLAY A SUBORDINATE ROLE IS
SOCIETY; IT DOES NOT JUSTIFY A DEPARTURE FROM SETTLED CONSTITUTIONAL
PRINCIPLES.  THE CONCEPT OF "MATRIMONIAL DOMICILE" WAS EXPRESSLY
REPUDIATED IN BOTH THE WILLIAMS CASES.  (FN2)  YET THE COURT IS ASKED
TO SAY HERE THAT A STATE'S POWER OVER AN ALIMONY CASE IS TO DEPEND ON
WHICH SPOUSE IS TO BLAME IN LEAVING THE OTHER.  WE ADHERE TO WHAT WAS
SAID IN THE FIRST WILLIAMS CASE: "THE QUESTION AS TO WHERE THE FAULT
LIES HAS NO RELEVANCY TO THE EXISTENCE OF STATE POWER IN SUCH
CIRCUMSTANCES."  317 U.S., AT 300. 

RELYING ON MILLIKEN V. MEYER, 311 U.S. 457, THE HUSBAND FURTHER
CONTENDS THAT REGARDLESS OF "MATRIMONIAL DOMICILE" PERSONAL SERVICE WAS
UNNECESSARY BECAUSE MRS. ARMSTRONG WAS ACTUALLY DOMICILED IN FLORIDA AT
THE TIME THE FLORIDA ACTION WAS BROUGHT.  THE FLORIDA COURT DID FIND
SHE WAS DOMICILED THERE, BUT THAT WAS IN AN UNCONTESTED PROCEEDING. 
THIS FINDING WAS OPEN TO CHALLENGE IN OHIO.  WILLIAMS V. NORTH
CAROLINA, 325 U.S. 226.  THE ISSUE WAS TRIED IN OHIO WITH BOTH PARTIES
PRESENT, AND THE TRIAL COURT EXPRESSLY FOUND THAT MRS. ARMSTRONG HAD
RETURNED TO OHIO AND WAS A "RESIDENT" THERE WITHIN THE MEANING OF THE
OHIO DIVORCE STATUTE AT THE TIME THE FLORIDA DIVORCE PROCEEDINGS WERE
INSTITUTED.  SEE PAGE'S OHIO REV. CODE ANN., 1954, SEC. 3105.03.  THIS
STATUTE HAS BEEN UNIFORMLY INTERPRETED BY THE OHIO COURTS TO REQUIRE
RESIDENCE ACCOMPANIED BY AN INTENTION TO MAKE THE STATE OF OHIO A
PERMANENT HOME.  SEE, E.G., SAALFELD V. SAALFELD, 86 OHIO APP. 225, 89
N.E.2D 165.  WE WOULD ACCEPT THE OHIO COURT'S FINDING THAT MRS.
ARMSTRONG WAS SUCH A RESIDENT OF OHIO WHEN THE FLORIDA SUIT WAS BROUGHT
AS AMPLY SUPPORTED BY EVIDENCE IN THE RECORD.  CONSEQUENTLY THE
HUSBAND'S RELIANCE ON MILLIKEN V. MEYER IS MISPLACED. 

THERE WAS NOTHING NOVEL IN OUR HOLDING IN ESTIN V. ESTIN THAT A STATE
WHERE ONE OF THE PARTIES TO A MARRIAGE IS DOMICILED CAN DISSOLVE THE
MARRIAGE WITHOUT PERSONAL SERVICE BUT THAT IT CANNOT RENDER A PERSONAL
DECREE GRANTING OR DENYING ALIMONY.  THE DISTINCTION BETWEEN A DECREE
WHICH GRANTS A DIVORCE AND ONE WHICH GRANTS A PERSONAL MONEY JUDGMENT
WAS RECOGNIZED AND THE REASONS FOR THE DISTINCTION WERE STATED BY THIS
COURT IN PENNOYER V. NEFF, 95 U.S. 714.  (FN3)  THE STATE COURTS HAVE
LONG RECOGNIZED THE RULE THAT A COURT LACKING PERSONAL JURISDICTION
OVER A HUSBAND CANNOT RENDER A VALID ALIMONY JUDGMENT AGAINST HIM. 
(FN4)  WE SEE NO REASON WHY A COURT LACKING PERSONAL JURISDICTION OVER
A WIFE SHOULD BE ALLOWED TO RENDER A VALID JUDGMENT DENYING ALIMONY TO
HER.  (FN5)  PERSONAL JURISDICTION IS AS NECESSARY TO PROTECT A WIFE'S
INTERESTS AS IT IS TO PROTECT A HUSBAND'S.  IT IS AN ESSENTIAL TO THIS
KIND OF DETERMINATION.  NOT LONG AFTER PENNOYER V. NEFF WAS DECIDED,
THIS COURT UPHELD THE VALIDITY OF A LEGISLATIVE DIVORCE WHICH WAS
GRANTED WITHOUT NOTICE, SERVICE OF PROCESS OR A HEARING OF ANY KIND,
JUDICIAL OR OTHERWISE.  MAYNARD V. HILL, 125 U.S. 190.  (FN6)  BUT
LEGISLATIVE DIVORCES ATTEMPTING TO CREATE OR DESTROY FINANCIAL
OBLIGATIONS INCIDENT TO MARRIAGE HAVE NOT BEEN SUSTAINED BY THE
COURTS.  (FN7)  THUS THE DIFFERENT TREATMENT ESTIN V. ESTIN ACCORDED TO
ALIMONY AND DIVORCE IS WELL GROUNDED IN THE JUDICIAL AND LEGISLATIVE
HISTORY OF OUR COUNTRY. 

IT IS ARGUED THAT THIS CASE IS CONTROLLED BY THOMPSON V. THOMPSON,
226 U.S. 551.  THAT CASE, HOWEVER, WAS DECIDED BEFORE THE WILLIAMS
CASES, THE ESTIN AND KREIGER CASES, AND MAY V. ANDERSON.  IT RELIED,
MOREOVER, ON THE CASE OF ATHERTON V. ATHERTON, 181 U.S. 155, WHICH IN
HOLDING THAT AN EX PARTE DIVORCE WAS ENTITLED TO FULL FAITH AND CREDIT
ITSELF QUOTED EXTENSIVELY FROM AUTHORITIES RECOGNIZING THAT SUCH A
DIVORCE MAY BE BINDING "SO FAR AS RELATED TO THE DISSOLUTION OF THE
MARRIAGE, THOUGH NOT AS TO OTHER PARTS OF THE DECREE, SUCH AS AN ORDER
FOR THE PAYMENT OF MONEY BY THE HUSBAND."  181 U.S., AT 166.  THE
THOMPSON CASE STANDS ALONE IN THE UNITED STATES REPORTS IN SUPPORTING
THE PROPOSITION THAT A VALID EX PARTE DIVORCE IN ONE STATE CUTS OFF
ALIMONY RIGHTS IN ANOTHER.  (FN8)  TO THE EXTENT THAT THE THOMPSON
DECISION CAN BE CONSIDERED AS IN ANY WAY INCONSISTENT WITH PENNOYER V.
NEFF AND ESTIN V. ESTIN, THE THOMPSON CASE SHOULD NO LONGER BE
CONSIDERED TO BE THE LAW. 

FOR THE FOREGOING REASONS WE CONCUR WITH THE COURT IN AFFIRMING THE
JUDGMENT OF THE SUPREME COURT OF OHIO. 

FN1  MR. JUSTICE FRANKFURTER'S SEPARATE OPINION TAKES THE POSITION
THAT "OHIO MERELY DEALT WITH PROPERTY WITHIN ITS BORDERS WHICH FLORIDA
HAD NOT PURPORTED TO AFFECT."  BUT THE FLORIDA DECREE STATED THAT MRS.
ARMSTRONG "IS HEREBY DIRECTED AND SPECIFICALLY ORDERED TO RETURN THE
SAID STOCK CERTIFICATES AND BONDS TO THE PLAINTIFF WITHIN FIFTEEN (15)
DAYS  ...  ."  THESE WERE THE VERY STOCKS WHICH THE OHIO COURT ORDERED
MR. ARMSTRONG TO TRANSFER TO MRS. ARMSTRONG AS ALIMONY. 

FN2  WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 325 U.S. 226.  IN THE
LATTER CASE THE COURT SAID: "IN VIEW OF WILLIAMS V. NORTH CAROLINA,
SUPRA, THE JURISDICTIONAL REQUIREMENT OF DOMICIL IS FREED FROM
CONFUSING REFINEMENTS ABOUT 'MATRIMONIAL DOMICIL'  ...  AND THE LIKE." 
325 U.S., AT 230. 

FN3  "  ...  WE DO NOT MEAN TO ASSERT, BY ANY THING WE HAVE SAID,
THAT A STATE MAY NOT AUTHORIZE PROCEEDINGS TO DETERMINE THE STATUS OF
ONE OF ITS CITIZENS TOWARD A NON-RESIDENT, WHICH WOULD BE BINDING
WITHIN THE STATE, THOUGH MADE WITHOUT SERVICE OF PROCESS OR PERSONAL
NOTICE TO THE NON-RESIDENT  ...  . THE STATE, FOR EXAMPLE, HAS ABSOLUTE
RIGHT TO PRESCRIBE THE CONDITIONS UPON WHICH THE MARRIAGE RELATION
BETWEEN ITS OWN CITIZENS SHALL BE CREATED, AND THE CAUSES FOR WHICH IT
MAY BE DISSOLVED.  ONE OF THE PARTIES GUILTY OF ACTS FOR WHICH, BY THE
LAW OF THE STATE, A DISSOLUTION MAY BE GRANTED, MAY HAVE REMOVED TO A
STATE WHERE NO DISSOLUTION IS PERMITTED.  THE COMPLAINING PARTY WOULD,
THEREFORE, FAIL IF A DIVORCE WERE SOUGHT IN THE STATE OF THE DEFENDANT;
AND IF APPLICATION COULD NOT BE MADE TO THE TRIBUNALS OF THE
COMPLAINANT'S DOMICILE IN SUCH CASE, AND PROCEEDINGS BE THERE
INSTITUTED WITHOUT PERSONAL SERVICE OF PROCESS OR PERSONAL NOTICE TO
THE OFFENDING PARTY, THE INJURED CITIZEN WOULD BE WITHOUT REDRESS." 
PENNOYER V. NEFF, 95 U.S. 734-735. 

AS EARLY AS 1832 THE DISTINCTION RECEIVED RECOGNITION IN A STATE
COURT.  HARDING V. ALDEN, 9 GREENL.  (ME.)  140.  THERE THE COURT
SAID: 

"IN GIVING EFFECT HERE TO THE DIVORCE DECREED IN RHODE ISLAND, WE
WOULD WISH TO BE UNDERSTOOD, THAT THE GROUNDS UPON WHICH WE PLACE OUR
DECISION, IS LIMITED TO THE DISSOLUTION OF THE MARRIAGE.  IN THE LIBEL,
ALIMONY WAS PRAYED FOR; AND CERTAIN PERSONAL PROPERTY, THEN IN THE
POSSESSION OF THE WIFE, WAS DECREED TO HER.  HAD THE COURT AWARDED HER
A GROSS SUM, OR A WEEKLY OR AN ANNUAL ALLOWANCE, TO BE PAID BY THE
HUSBAND, AND THE COURTS OF THIS OR ANY OTHER STATE HAD BEEN RESORTED TO
TO ENFORCE IT, A DIFFERENT QUESTION WOULD BE PRESENTED  ...  ."  9
GREENL.  (ME.), AT 151.  SEE ALSO 2 KENT'S COMMENTARIES (14TH ED.,
GOULD, 1896) *110, N. (A). 

FN4  BEARD V. BEARD, 21 IND. 321 (1863); ELLISON V. MARTIN, 53 MO.
575 (1873); PROSSER V. WARNER, 47 VT. 667 (1875); BUNNELL V. BUNNELL,
25 F. 214 (1885); ANDERSON V. ANDERSON, 55 MO. APP. 268 (1893); DILLON
V. STARIN, 44 NEB. 881, 63 N.W. 12 (1895); DE LA MONTANYA V. DE LA
MONTANYA, 112 CAL. 101, 44 P. 345 (1896).  SEE ALSO BARRETT V. FAILING,
111 U.S. 523, 525.  AND SEE 2 BISHOP, MARRIAGE & DIVORCE (6TH ED.
1881), SEC. 381A; COOLEY, CONSTITUTIONAL LIMITATIONS (6TH ED., ANGELL,
1890), 497-498. 

FN5  SEE, E.G., TURNER V. TURNER, 44 ALA. 437, 450 (1870); VANDERBILT
V. VANDERBILT, 1 APP. DIV. 2D 3, 147 N.Y.S.2D 125 (1955), STAYED
PENDING APPEAL, 309 N.Y. 971, 132 N.E.2D 333 (1956); HOPSON V. HOPSON,
95 U.S. APP. D.C. 285, 221 F.2D 839. 

FN6  IN THAT CASE THE COURT SAID:  "IF THE ACT DECLARING THE DIVORCE
SHOULD ATTEMPT TO INTERFERE WITH RIGHTS OR PROPERTY VESTED IN EITHER
PARTY, A DIFFERENT QUESTION WOULD BE PRESENTED."  125 U.S., AT 206. 

FN7  CRANE V. MEGINNIS, 1 GILL & J. (MD.)  463 (1829); WRIGHT V.
WRIGHT'S LESSEE, 2 MD. 429 (1852).   SEE ALSO 1 BISHOP, MARRIAGE &
DIVORCE (6TH ED. 1881), SEC. 693; 2 ID., SEC. 382; 2 SCHOULER,
MARRIAGE, DIVORCE, SEPARATION AND DOMESTIC RELATIONS (6TH ED.,
BLAKEMORE, 1921), SECS. 1471-1473. 

FN8  IT MAY BE NOTED THAT THIS QUESTION WAS NOT ARGUED BY THE WIFE IN
THE THOMPSON CASE.  AND THE DISTRICT OF COLUMBIA COURT OF APPEALS
STATED "IT WAS CONCEDED AT BAR THAT, IF THE VIRGINIA DECREE WAS NOT
VOID, THIS ACTION COULD NOT, UPON ANY THEORY, BE MAINTAINED."  35 APP.
D.C. 14, 26. 
..END :




















PENNSYLVANIA V. NELSON 350 U.S. 497 


NO. 10.  ARGUED NOVEMBER 15-16, 1955 - DECIDED APRIL 2, 1956 - 377 PA.
58, 104 A.2D 133, AFFIRMED. 


THE SMITH ACT, AS AMENDED, 18 U.S.C. SEC. 2385, WHICH PROHIBITS THE
KNOWING ADVOCACY OF THE OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES BY FORCE AND VIOLENCE, SUPERSEDES THE ENFORCEABILITY OF THE
PENNSYLVANIA SEDITION ACT, WHICH PROSCRIBES THE SAME CONDUCT.  PP. 498
510. 

1.  THE SCHEME OF FEDERAL REGULATION IS SO PERVASIVE AS TO MAKE
REASONABLE THE INFERENCE THAT THE CONGRESS LEFT NO ROOM FOR THE STATES
TO SUPPLEMENT IT.  PP. 502-504. 

2.  THE FEDERAL STATUTES TOUCH A FIELD IN WHICH THE FEDERAL INTEREST
IS SO DOMINANT THAT THE FEDERAL SYSTEM MUST BE ASSUMED TO PRECLUDE
ENFORCEMENT OF STATE LAWS ON THE SAME SUBJECT.  PP. 504-505. 

3.  ENFORCEMENT OF STATE SEDITION ACTS PRESENTS A SERIOUS DANGER OF
CONFLICT WITH THE ADMINISTRATION OF THE FEDERAL PROGRAM.  PP. 505-510. 

PENNSYLVANIA V. NELSON. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA, WESTERN DISTRICT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT STEVE NELSON, AN ACKNOWLEDGED MEMBER OF THE COMMUNIST
PARTY, WAS CONVICTED IN THE COURT OF QUARTER SESSIONS OF ALLEGHENY
COUNTY, PENNSYLVANIA, OF A VIOLATION OF THE PENNSYLVANIA SEDITION ACT
(FN1) AND SENTENCED TO IMPRISONMENT FOR TWENTY YEARS AND TO A FINE OF
$10,000 AND TO COSTS OF PROSECUTION IN THE SUM OF $13,000.  THE
SUPERIOR COURT AFFIRMED THE CONVICTION.  172 PA. SUPER.  125, 92 A.2D
431.  THE SUPREME COURT OF PENNSYLVANIA, RECOGNIZING BUT NOT REACHING
MANY ALLEGED SERIOUS TRIAL ERRORS AND CONDUCT OF THE TRIAL COURT
INFRINGING UPON RESPONDENT'S RIGHT TO DUE PROCESS OF LAW, (FN2) DECIDED
THE CASE ON THE NARROW ISSUE OF SUPERSESSION OF THE STATE LAW BY THE
FEDERAL SMITH ACT.  (FN3)  IN ITS OPINION, THE COURT STATED: 

"AND, WHILE THE PENNSYLVANIA STATUTE PROSCRIBES SEDITION AGAINST
EITHER THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF
PENNSYLVANIA, IT IS ONLY ALLEGED SEDITION AGAINST THE UNITED STATES
WITH WHICH THE INSTANT CASE IS CONCERNED.  OUT OF ALL THE VOLUMINOUS
TESTIMONY, WE HAVE NOT FOUND, NOR HAS ANYONE POINTED TO, A SINGLE WORD
INDICATING A SEDITIOUS ACT OR EVEN UTTERANCE DIRECTED AGAINST THE
GOVERNMENT OF PENNSYLVANIA."  (FN4) 

THE PRECISE HOLDING OF THE COURT, AND ALL THAT IS BEFORE US FOR
REVIEW, IS THAT THE SMITH ACT OF 1940, (FN5) AS AMENDED IN 1948, (FN6)
WHICH PROHIBITS THE KNOWING ADVOCACY OF THE OVERTHROW OF THE GOVERNMENT
OF THE UNITED STATES BY FORCE AND VIOLENCE, SUPERSEDES THE
ENFORCEABILITY OF THE PENNSYLVANIA SEDITION ACT WHICH PROSCRIBES THE
SAME CONDUCT. 

MANY STATE ATTORNEYS GENERAL AND THE SOLICITOR GENERAL OF THE UNITED
STATES APPEARED AS AMICI CURIAE FOR PETITIONER, AND SEVERAL BRIEFS WERE
FILED ON BEHALF OF THE RESPONDENT.  BECAUSE OF THE IMPORTANT QUESTION
OF FEDERAL-STATE RELATIONSHIP INVOLVED, WE GRANTED CERTIORARI.  348
U.S. 814. 

IT SHOULD BE SAID AT THE OUTSET THAT THE DECISION IN THIS CASE DOES
NOT AFFECT THE RIGHT OF STATES TO ENFORCE THEIR SEDITION LAWS AT TIMES
WHEN THE FEDERAL GOVERNMENT HAS NOT OCCUPIED THE FIELD AND IS NOT
PROTECTING THE ENTIRE COUNTRY FROM SEDITIOUS CONDUCT.  THE DISTINCTION
BETWEEN THE TWO SITUATIONS WAS CLEARLY RECOGNIZED BY THE COURT BELOW. 
(FN7)  NOR DOES IT LIMIT THE JURISDICTION OF THE STATES WHERE THE
CONSTITUTION AND CONGRESS HAVE SPECIFICALLY GIVEN THEM CONCURRENT
JURISDICTION, AS WAS DONE UNDER THE EIGHTEENTH AMENDMENT AND THE
VOLSTEAD ACT.  UNITED STATES V. LANZA, 260 U.S. 377.  NEITHER DOES IT
LIMIT THE RIGHT OF THE STATE TO PROTECT ITSELF AT ANY TIME AGAINST
SABOTAGE OR ATTEMPTED VIOLENCE OF ALL KINDS.  (FN8)  NOR DOES IT
PREVENT THE STATE FROM PROSECUTING WHERE THE SAME ACT CONSTITUTES BOTH
A FEDERAL OFFENSE AND A STATE OFFENSE UNDER THE POLICE POWER, AS WAS
DONE IN FOX V. OHIO, 5 HOW.  410, AND GILBERT V. MINNESOTA, 254 U.S.
325, RELIED UPON BY PETITIONER AS AUTHORITY HEREIN.  IN NEITHER OF
THOSE CASES DID THE STATE STATUTE IMPINGE ON FEDERAL JURISDICTION.  IN
THE FOX CASE, THE FEDERAL OFFENSE WAS COUNTERFEITING.  THE STATE
OFFENSE WAS DEFRAUDING THE PERSON TO WHOM THE SPURIOUS MONEY WAS
PASSED.  IN THE GILBERT CASE THIS COURT, IN UPHOLDING THE ENFORCEMENT
OF A STATE STATUTE, PROSCRIBING CONDUCT WHICH WOULD "INTERFERE WITH OR
DISCOURAGE THE ENLISTMENT OF MEN IN THE MILITARY OR NAVAL FORCES OF THE
UNITED STATES OR OF THE STATE OF MINNESOTA," TREATED IT NOT AS AN ACT
RELATING TO "THE RAISING OF ARMIES FOR THE NATIONAL DEFENSE, NOR TO
RULES AND REGULATIONS FOR THE GOVERNMENT OF THOSE UNDER ARMS (A
CONSTITUTIONALLY EXCLUSIVE FEDERAL POWER).  IT WAS SIMPLY A LOCAL
POLICE MEASURE  ...  ."  (FN9) 

WHERE, AS IN THE INSTANT CASE, CONGRESS HAS NOT STATED SPECIFICALLY
WHETHER A FEDERAL STATUTE HAS OCCUPIED A FIELD IN WHICH THE STATES ARE
OTHERWISE FREE TO LEGISLATE, (FN10) DIFFERENT CRITERIA HAVE FURNISHED
TOUCHSTONES FOR DECISION.  THUS: 

"THIS COURT, IN CONSIDERING THE VALIDITY OF STATE LAWS IN THE LIGHT
OF  ...  FEDERAL LAWS TOUCHING THE SAME SUBJECT, HAS MADE USE OF THE
FOLLOWING EXPRESSIONS:  CONFLICTING; CONTRARY TO; OCCUPYING THE FIELD;
REPUGNANCE; DIFFERENCE; IRRECONCILABILITY; INCONSISTENCY; VIOLATION;
CURTAILMENT; AND INTERFERENCE.  BUT NONE OF THESE EXPRESSIONS PROVIDES
AN INFALLIBLE CONSTITUIONAL TEST OR AN EXCLUSIVE CONSTITUTIONAL
YARDSTICK.  IN THE FINAL ANALYSIS, THERE CAN BE NO ONE CRYSTAL CLEAR
DISTINCTLY MARKED FORMULA."  HINES V. DAVIDOWITZ, 312 U.S. 52, 67. 

AND SEE RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218, 230-231.  IN
THIS CASE, WE THINK THAT EACH OF SEVERAL TESTS OF SUPERSESSION IS MET. 

FIRST, "THE SCHEME OF FEDERAL REGULATION IS SO PERVASIVE AS TO MAKE
REASONABLE THE INFERENCE THAT CONGRESS LEFT NO ROOM FOR THE STATES TO
SUPPLEMENT IT."  RICE V. SANTA FE ELEVATOR CORP., 331 U.S., AT 230. 
THE CONGRESS DETERMINED IN 1940 THAT IT WAS NECESSARY FOR IT TO RE
ENTER THE FIELD OF ANTISUBVERSIVE LEGISLATION, WHICH HAD BEEN ABANDONED
BY IT IN 1921.  IN THAT YEAR, IT ENACTED THE SMITH ACT WHICH PROSCRIBES
ADVOCACY OF THE OVERTHROW OF ANY GOVERNMENT - FEDERAL, STATE OR LOCAL -
BY FORCE AND VIOLENCE AND ORGANIZATION OF AND KNOWING MEMBERSHIP IN A
GROUP WHICH SO ADVOCATES.  (FN11)  CONSPIRACY TO COMMIT ANY OF THESE
ACTS IS PUNISHABLE UNDER THE GENERAL CRIMINAL CONSPIRACY PROVISIONS IN
18 U.S.C.  SEC. 371.  THE INTERNAL SECURITY ACT OF 1950 IS AIMED MORE
DIRECTLY AT COMMUNIST ORGANIZATIONS.  (FN12)  IT DISTINGUISHES BETWEEN
"COMMUNIST-ACTION ORGANIZATIONS" AND "COMMUNIST-FRONT ORGANIZATIONS,"
(FN13) REQUIRING SUCH ORGANIZATIONS TO REGISTER AND TO FILE ANNUAL
REPORTS WITH THE ATTORNEY GENERAL GIVING COMPLETE DETAILS AS TO THEIR
OFFICERS AND FUNDS.  (FN14) MEMBERS OF COMMUNIST-ACTION ORGANIZATIONS
WHO HAVE NOT BEEN REGISTERED BY THEIR ORGANIZATION MUST REGISTER AS
INDIVIDUALS.  (FN15)  FAILURE TO REGISTER IN ACCORDANCE WITH THE
REQUIREMENTS OF SECTIONS 786-787 IS PUNISHABLE BY A FINE OF NOT MORE
THAN $10,000 FOR AN OFFENDING ORGANIZATION AND BY A FINE OF NOT MORE
THAN $10,000 OR IMPRISONMENT FOR NOT MORE THAN FIVE YEARS OR BOTH FOR
AN INDIVIDUAL OFFENDER - EACH DAY OF FAILURE TO REGISTER CONSTITUTING A
SEPARATE OFFENSE.  (FN16)  AND THE ACT IMPOSES CERTAIN SANCTIONS UPON
BOTH "ACTION" AND "FRONT" ORGANIZATIONS AND THEIR MEMBERS.  (FN17)  THE
COMMUNIST CONTROL ACT OF 1954 DECLARES "THAT THE COMMUNIST PARTY OF THE
UNITED STATES, ALTHOUGH PURPORTEDLY A POLITICAL PARTY, IS IN FACT AN
INSTRUMENTALITY OF A CONSPIRACY TO OVERTHROW THE GOVERNMENT OF THE
UNITED STATES" AND THAT "ITS ROLE AS THE AGENCY OF A HOSTILE FOREIGN
POWER RENDERS ITS EXISTENCE A CLEAR PRESENT AND CONTINUING DANGER TO
THE SECURITY OF THE UNITED STATES."  (FN18)  IT ALSO CONTAINS A
LEGISLATIVE FINDING THAT THE COMMUNIST PARTY IS A "COMMUNIST-ACTION
ORGANIZATION" WITHIN THE MEANING OF THE INTERNAL SECURITY ACT OF 1950
AND PROVIDES THAT "KNOWING" MEMBERS OF THE COMMUNIST PARTY ARE "SUBJECT
TO ALL THE PROVISIONS AND PENALTIES" OF THAT ACT.  (FN19)  IT
FURTHERMORE SETS UP A NEW CLASSIFICATION OF "COMMUNIST-INFILTRATED
ORGANIZATIONS" (FN20) AND PROVIDES FOR THE IMPOSITION OF SANCTIONS
AGAINST THEM. 

WE EXAMINE THESE ACTS ONLY TO DETERMINE THE CONGRESSIONAL PLAN. 
LOOKING TO ALL OF THEM IN THE AGGREGATE, THE CONCLUSION IS INESCAPABLE
THAT CONGRESS HAS INTENDED TO OCCUPY THE FIELD OF SEDITION.   TAKEN AS
A WHOLE, THEY EVINCE A CONGRESSIONAL PLAN WHICH MAKES IT REASONABLE TO
DETERMINE THAT NO ROOM HAS BEEN LEFT FOR THE STATES TO SUPPLEMENT IT.
THEREFORE, A STATE SEDITION STATUTE IS SUPERSEDED REGARDLESS OF WHETHER
IT PURPORTS TO SUPPLEMENT THE FEDERAL LAW.  AS WAS SAID BY MR. JUSTICE
HOLMES IN CHARLESTON & WESTERN CAROLINA R. CO. V. VARNVILLE FURNITURE
CO., 237 U.S. 597, 604: 

"WHEN CONGRESS HAS TAKEN THE PARTICULAR SUBJECT-MATTER IN HAND
COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION, AND A STATE LAW IS NOT TO
BE DECLARED A HELP BECAUSE IT ATTEMPTS TO GO FARTHER THAN CONGRESS HAS
SEEN FIT TO GO." 

SECOND, THE FEDERAL STATUTES "TOUCH A FIELD IN WHICH THE FEDERAL
INTEREST IS SO DOMINANT THAT THE FEDERAL SYSTEM MUST BE ASSUMED TO
PRECLUDE ENFORCEMENT OF STATE LAWS ON THE SAME SUBJECT."  RICE V. SANTA
FE ELEVATOR CORP., 331 U.S., AT 230, CITING HINES V. DAVIDOWITZ, SUPRA.
(FN21)  CONGRESS HAS DEVISED AN ALL-EMBRACING PROGRAM FOR RESISTANCE
TO THE VARIOUS FORMS OF TOTALITARIAN AGGRESSION.  OUR EXTERNAL DEFENSES
HAVE BEEN STRENGTHENED, AND A PLAN TO PROTECT AGAINST INTERNAL
SUBVERSION HAS BEEN MADE BY IT.  IT HAS APPROPRIATED VAST SUMS, NOT
ONLY FOR OUR OWN PROTECTION, BUT ALSO TO STRENGTHEN FREEDOM THROUGHOUT
THE WORLD.  IT HAS CHARGED THE FEDERAL BUREAU OF INVESTIGATION AND THE
CENTRAL INTELLIGENCE AGENCY WITH RESPONSIBILITY FOR INTELLIGENCE
CONCERNING COMMUNIST SEDITIOUS ACTIVITIES AGAINST OUR GOVERNMENT, AND
HAS DENOMINATED SUCH ACTIVITIES AS PART OF A WORLD CONSPIRACY.  IT
ACCORDINGLY PROSCRIBED SEDITION AGAINST ALL GOVERNMENT IN THE NATION -
NATIONAL, STATE AND LOCAL.  CONGRESS DECLARED THAT THESE STEPS WERE
TAKEN "TO PROVIDE FOR THE COMMON DEFENSE, TO PRESERVE THE SOVEREIGNTY
OF THE UNITED STATES AS AN INDEPENDENT NATION, AND TO GUARANTEE TO EACH
STATE A REPUBLICAN FORM OF GOVERNMENT  ...  ."  (FN22)  CONGRESS HAVING
THUS TREATED SEDITIOUS CONDUCT AS A MATTER OF VITAL NATIONAL CONCERN,
IT IS IN NO SENSE A LOCAL ENFORCEMENT PROBLEM.  AS WAS SAID IN THE
COURT BELOW: 

"SEDITION AGAINST THE UNITED STATES IS NOT A LOCAL OFFENSE.  IT IS A
CRIME AGAINST THE NATION.  AS SUCH, IT SHOULD BE PROSECUTED AND
PUNISHED IN THE FEDERAL COURTS WHERE THIS DEFENDANT HAS IN FACT BEEN
PROSECUTED AND CONVICTED AND IS NOW UNDER SENTENCE.  (FN23)  IT IS NOT
ONLY IMPORTANT BUT VITAL THAT SUCH PROSECUTIONS SHOULD BE EXCLUSIVELY
WITHIN THE CONTROL OF THE FEDERAL GOVERNMENT  ...  ."  (FN24) 

THIRD, ENFORCEMENT OF STATE SEDITION ACTS PRESENTS A SERIOUS DANGER
OF CONFLICT WITH THE ADMINISTRATION OF THE FEDERAL PROGRAM.  SINCE
1939, IN ORDER TO AVOID A HAMPERING OF UNIFORM ENFORCEMENT OF ITS
PROGRAM BY SPORADIC LOCAL PROSECUTIONS, THE FEDERAL GOVERNMENT HAS
URGED LOCAL AUTHORITIES NOT TO INTERVENE IN SUCH MATTERS, BUT TO TURN
OVER TO THE FEDERAL AUTHORITIES IMMEDIATELY AND UNEVALUATED ALL
INFORMATION CONCERNING SUBVERSIVE ACTIVITIES.  THE PRESIDENT MADE SUCH
A REQUEST ON SEPTEMBER 6, 1939, WHEN HE PLACED THE FEDERAL BUREAU OF
INVESTIGATION IN CHARGE OF INVESTIGATION IN THIS FIELD: 

"THE ATTORNEY GENERAL HAS BEEN REQUESTED BY ME TO INSTRUCT THE
FEDERAL BUREAU OF INVESTIGATION OF THE DEPARTMENT OF JUSTICE TO TAKE
CHARGE OF INVESTIGATIVE WORK IN MATTERS RELATING TO ESPIONAGE,
SABOTAGE, AND VIOLATIONS OF THE NEUTRALITY REGULATIONS. 

"THIS TASK MUST BE CONDUCTED IN A COMPREHENSIVE AND EFFECTIVE MANNER
ON A NATIONAL BASIS, AND ALL INFORMATION MUST BE CAREFULLY SIFTED OUT
AND CORRELATED IN ORDER TO AVOID CONFUSION AND IRRESPONSIBILITY. 

"TO THIS END I REQUEST ALL POLICE OFFICERS, SHERIFFS, AND ALL OTHER
LAW ENFORCEMENT OFFICERS IN THE UNITED STATES PROMPTLY TO TURN OVER TO
THE NEAREST REPRESENTATIVE OF THE FEDERAL BUREAU OF INVESTIGATION ANY
INFORMATION OBTAINED BY THEM RELATING TO ESPIONAGE, COUNTERESPIONAGE,
SABOTAGE, SUBVERSIVE ACTIVITIES AND VIOLATIONS OF THE NEUTRALITY
LAWS."  (FN25) 

AND IN ADDRESSING THE FEDERAL-STATE CONFERENCE ON LAW ENFORCEMENT
PROBLEMS OF NATIONAL DEFENSE, HELD ON AUGUST 5 AND 6, 1940, ONLY A FEW
WEEKS AFTER THE PASSAGE OF THE SMITH ACT, THE DIRECTOR OF THE FEDERAL
BUREAU OF INVESTIGATION SAID: 

"THE FACT MUST NOT BE OVERLOOKED THAT MEETING THE SPY, THE SABOTEUR
AND THE SUBVERTER IS A PROBLEM THAT MUST BE HANDLED ON A NATION-WIDE
BASIS.  AN ISOLATED INCIDENT IN THE MIDDLE WEST MAY BE OF LITTLE
SIGNIFICANCE, BUT WHEN FITTED INTO A NATIONAL PATTERN OF SIMILAR
INCIDENTS, IT MAY LEAD TO AN IMPORTANT REVELATION OF SUBVERSIVE
ACTIVITY.  IT IS FOR THIS REASON THAT THE PRESIDENT REQUESTED ALL OF
OUR CITIZENS AND LAW ENFORCING AGENCIES TO REPORT DIRECTLY TO THE
FEDERAL BUREAU OF INVESTIGATION ANY COMPLAINTS OR INFORMATION DEALING
WITH ESPIONAGE, SABOTAGE OR SUBVERSIVE ACTIVITIES.  IN SUCH MATTERS,
TIME IS OF THE ESSENCE.  IT IS UNFORTUNATE THAT IN A FEW STATES EFFORTS
HAVE BEEN MADE BY INDIVIDUALS NOT FULLY ACQUAINTED WITH THE FAR-FLUNG
RAMIFICATIONS OF THIS PROBLEM TO INTERJECT SUPERSTRUCTURES OF AGENCIES
BETWEEN LOCAL LAW ENFORCEMENT AND THE FBI TO SIFT WHAT MIGHT BE VITAL
INFORMATION, THUS DELAYING ITS IMMEDIATE REFERENCE TO THE FBI.  THIS
CANNOT BE, IF OUR INTERNAL SECURITY IS TO BE BEST SERVED.  THIS IS NO
TIME FOR RED TAPE OR AMATEUR HANDLING OF SUCH VITAL MATTERS.  THERE
MUST BE A DIRECT AND FREE FLOW OF CONTACT BETWEEN THE LOCAL LAW
ENFORCEMENT AGENCIES AND THE FBI.  THE JOB OF MEETING THE SPY OR
SABOTEUR IS ONE FOR EXPERIENCED MEN OF LAW ENFORCEMENT."   (FN26) 

MOREOVER, THE PENNSYLVANIA STATUTE PRESENTS A PECULIAR DANGER OF
INTERFERENCE WITH THE FEDERAL PROGRAM.  FOR, AS THE COURT BELOW
OBSERVED: 

"UNLIKE THE SMITH ACT, WHICH CAN BE ADMINISTERED ONLY BY FEDERAL
OFFICERS ACTING IN THEIR OFFICIAL CAPACITIES, INDICTMENT FOR SEDITION
UNDER THE PENNSYLVANIA STATUTE CAN BE INITIATED UPON AN INFORMATION
MADE BY A PRIVATE INDIVIDUAL.  THE OPPORTUNITY THUS PRESENT FOR THE
INDULGENCE OF PERSONAL SPITE AND HATRED OR FOR FURTHERING SOME SELFISH
ADVANTAGE OR AMBITION NEED ONLY BE MENTIONED TO BE APPRECIATED. 
DEFENSE OF THE NATION BY LAW, NO LESS THAN BY ARMS, SHOULD BE A PUBLIC
AND NOT A PRIVATE UNDERTAKING.  IT IS IMPORTANT THAT PUNITIVE SANCTIONS
FOR SEDITION AGAINST THE UNITED STATES BE SUCH AS HAVE BEEN PROMULGATED
BY THE CENTRAL GOVERNMENTAL AUTHORITY AND ADMINISTERED UNDER THE
SUPERVISION AND REVIEW OF THAT AUTHORITY'S JUDICIARY.  IF THAT BE DONE,
SEDITION WILL BE DETECTED AND PUNISHED, NO LESS, WHEREVER IT MAY BE
FOUND, AND THE RIGHT OF THE INDIVIDUAL TO SPEAK FREELY AND WITHOUT
FEAR, EVEN IN CRITICISM OF THE GOVERNMENT, WILL AT THE SAME TIME BE
PROTECTED."  (FN27) 

IN HIS BRIEF, THE SOLICITOR GENERAL STATES THAT FORTY-TWO STATES PLUS
ALASKA AND HAWAII HAVE STATUTES WHICH IN SOME FORM PROHIBIT ADVOCACY OF
THE VIOLENT OVERTHROW OF ESTABLISHED GOVERNMENT.  THESE STATUTES ARE
ENTITLED ANTI-SEDITION STATUTES, CRIMINAL ANARCHY LAWS, CRIMINAL
SYNDICALIST LAWS, ETC.  ALTHOUGH ALL OF THEM ARE PRIMARILY DIRECTED
AGAINST THE OVERTHROW OF THE UNITED STATES GOVERNMENT, THEY ARE IN NO
SENSE UNIFORM.  AND OUR ATTENTION HAS NOT BEEN CALLED TO ANY CASE WHERE
THE PROSECUTION HAS BEEN SUCESSFULLY DIRECTED AGAINST AN ATTEMPT TO
DESTROY STATE OR LOCAL GOVERNMENT.  SOME OF THESE ACTS ARE STUDIOUSLY
DRAWN AND PURPORT TO PROTECT FUNDAMENTAL RIGHTS BY APPROPRIATE
DEFINITIONS, STANDARDS OF PROOF AND ORDERLY PROCEDURES IN KEEPING WITH
THE AVOWED CONGRESSIONAL PURPOSE "TO PROTECT FREEDOM FROM THOSE WHO
WOULD DESTROY IT, WITHOUT INFRINGING UPON THE FREEDOM OF ALL OUR
PEOPLE."  OTHERS ARE VAGUE AND ARE ALMOST WHOLLY WITHOUT SUCH
SAFEGUARDS.  SOME EVEN PURPORT TO PUNISH MERE MEMBERSHIP IN SUBVERSIVE
ORGANIZATIONS WHICH THE FEDERAL STATUTES DO NOT PUNISH WHERE FEDERAL
REGISTRATION REQUIREMENTS HAVE BEEN FULFILLED.  (FN28) 

WHEN WE WERE CONFRONTED WITH A LIKE SITUATION IN THE FIELD OF LABOR
MANAGEMENT RELATIONS, MR. JUSTICE JACKSON WROTE: 

"A MULTIPLICITY OF TRIBUNALS AND A DIVERSITY OF PROCEDURES ARE QUITE
AS APT TO PRODUCE INCOMPATIBLE OR CONFLICTING ADJUDICATIONS AS ARE
DIFFERENT RULES OF SUBSTANTIVE LAW."  (FN29) 

SHOULD THE STATES BE PERMITTED TO EXERCISE A CONCURRENT JURISDICTION
IN THIS AREA, FEDERAL ENFORCEMENT WOULD ENCOUNTER NOT ONLY THE
DIFFICULTIES MENTIONED BY MR. JUSTICE JACKSON, BUT THE ADDED CONFLICT
ENGENDERED BY DIFFERENT CRITERIA OF SUBSTANTIVE OFFENSES. 

SINCE WE FIND THAT CONGRESS HAS OCCUPIED THE FIELD TO THE EXCLUSION
OF PARALLEL STATE LEGISLATION, THAT THE DOMINANT INTEREST OF THE
FEDERAL GOVERNMENT PRECLUDES STATE INTERVENTION, AND THAT
ADMINISTRATION OF STATE ACTS WOULD CONFLICT WITH THE OPERATION OF THE
FEDERAL PLAN, WE ARE CONVINCED THAT THE DECISION OF THE SUPREME COURT
OF PENNSYLVANIA IS UNASSAILABLE. 

WE ARE NOT UNMINDFUL OF THE RISK OF COMPOUNDING PUNISHMENTS WHICH
WOULD BE CREATED BY FINDING CONCURRENT STATE POWER.  IN OUR VIEW OF THE
CASE, WE DO NOT REACH THE QUESTION WHETHER DOUBLE OR MULTIPLE
PUNISHMENT FOR THE SAME OVERT ACTS DIRECTED AGAINST THE UNITED STATES
HAS CONSTITUTIONAL SANCTION.  (FN30) WITHOUT COMPELLING INDICATION TO
THE CONTRARY, WE WILL NOT ASSUME THAT CONGRESS INTENDED TO PERMIT THE
POSSIBILITY OF DOUBLE PUNISHMENT.  CF. HOUSTON V. MOORE, 5 WHEAT.  1,
31, 75; JEROME V. UNITED STATES, 318 U.S. 101, 105. 

THE JUDGMENT OF THE SUPREME COURT OF PENNSYLVANIA IS AFFIRMED. 

FN1  PA. PENAL CODE SEC. 207, 18 PURDON'S PA. STAT. ANN. SEC. 4207. 
THE TEXT OF THE STATUTE IS SET OUT IN AN APPENDIX TO THIS OPINION,
POST, P. 510. 

FN2  THE SUPREME COURT ALSO DID NOT HAVE TO REACH THE QUESTION OF THE
CONSTITUTIONALITY OF SUBDIVISION (C) OF THE PENNSYLVANIA ACT, THE BASIS
OF FOUR COUNTS OF THE TWELVE-COUNT INDICTMENT, WHICH PUNISHES
UTTERANCES "OR CONDUCT INTENDED TO INCITE OR ENCOURAGE ANY PERSON TO
COMMIT ANY OVERT ACT WITH A VIEW TO BRINGING THE GOVERNMENT OF THIS
STATE OR OF THE UNITED STATES INTO HATRED OR CONTEMPT."  CF. WINTERS V.
NEW YORK, 333 U.S. 507.  THIS PROVISION IS STRANGELY REMINISCENT OF THE
SEDITION ACT OF 1798, 1 STAT. 596, WHICH PUNISHED UTTERANCES MADE "WITH
INTENT TO DEFAME THE  ... GOVERNMENT, OR EITHER HOUSE OF THE  ...
CONGRESS, OR THE  ...  PRESIDENT, OR TO BRING THEM  ... INTO CONTEMPT
OR DISREPUTE; OR TO EXCITE AGAINST THEM  ...  THE HATRED OF THE GOOD
PEOPLE OF THE UNITED STATES  ...  ." 

FN3  377 PA. 58, 104 A.2D 133. 

FN4  377 PA., AT 69, 104 A.2D, AT 139. 

FN5  54 STAT. 670. 

FN6  18 U.S.C. SEC. 2385.  THE TEXT OF THE STATUTE IS SET OUT IN AN
APPENDIX TO THIS OPINION, POST, P. 511.  (ANOTHER PART OF THE SMITH
ACT, PUNISHING THE ADVOCACY OF MUTINY, IS NOW 18 U.S.C. SEC. 2387.) 

FN7  "NO QUESTION OF FEDERAL SUPERSESSION OF A STATE STATUTE WAS IN
ISSUE ...  WHEN THE SUPREME COURT UPHELD THE VALIDITY OF THE STATE
STATUTES IN GITLOW V. NEW YORK, 268 U.S. 652 (1925), AND WHITNEY V.
CALIFORNIA, 274 U.S. 357 (1927)."  377 PA., AT 73-74, 104 A.2D, AT
141. 

ALTHOUGH THE JUDGMENTS OF CONVICTION IN BOTH GITLOW AND WHITNEY WERE
RENDERED IN 1920, BEFORE REPEAL OF THE FEDERAL WARTIME SEDITION STATUTE
OF 1918, 41 STAT. 1359, THE QUESTION OF SUPERSESSION WAS NOT RAISED IN
EITHER CASE AND, OF COURSE, NOT CONSIDERED IN THIS COURT'S OPINIONS. 

FN8  "NOR IS A STATE STRIPPED OF ITS MEANS OF SELF-DEFENSE BY THE
SUSPENSION OF ITS SEDITION STATUTE THROUGH THE ENTRY OF THE FEDERAL
GOVERNMENT UPON THE FIELD.  THERE ARE MANY VALID LAWS ON PENNSYLVANIA'S
STATUTE BOOKS ADEQUATE FOR COPING EFFECTIVELY WITH ACTUAL OR THREATENED
INTERNAL CIVIL DISTURBANCES.  AS TO THE NATIONWIDE THREAT TO ALL
CITIZENS, IMBEDDED IN THE TYPE OF CONDUCT INTERDICTED BY A SEDITION
ACT, WE ARE - ALL OF US - PROTECTED BY THE SMITH ACT AND IN A MANNER
MORE EFFICIENT AND MORE CONSISTENT WITH THE SERVICE OF OUR NATIONAL
WELFARE IN ALL RESPECTS."  377 PA., AT 70, 104 A.2D, AT 139. 

FN9  254 U.S., AT 331.  THE COURT WENT ON TO OBSERVE:  "  ...  THE
STATE KNEW THE CONDITIONS WHICH EXISTED AND COULD HAVE A SOLICITUDE FOR
THE PUBLIC PEACE, AND THIS RECORD JUSTIFIES IT.  GILBERT'S REMARKS WERE
MADE IN A PUBLIC MEETING.  THEY WERE RESENTED BY HIS AUDITORS.  THERE
WERE PROTESTING INTERRUPTIONS, ALSO ACCUSATIONS AND THREATS AGAINST
HIM, DISORDER AND INTIMATIONS OF VIOLENCE.  AND SUCH IS NOT AN UNCOMMON
EXPERIENCE.  ON SUCH OCCASIONS FEELING USUALLY RUNS HIGH AND IS
IMPETUOUS; THERE IS A PROMPTING TO VIOLENCE AND WHEN VIOLENCE IS ONE
YIELDED TO, BEFORE IT CAN BE QUELLED, TRAGEDIES MAY BE ENACTED.  TO
PRECLUDE SUCH RESULT OR A DANGER OF IT IS A PROPER EXERCISE OF THE
POWER OF THE STATE."  ID., AT 331-332. 

FN10  PETITIONER MAKES THE SUBSIDIARY ARGUMENT THAT 18 U.S.C. SEC.
3231 SHOWS A CONGRESSIONAL INTENTION NOT TO SUPERSEDE STATE CRIMINAL
STATUTES BY ANY PROVISION OF TITLE 18.  SECTION 3231 PROVIDES: 

"THE DISTRICT COURTS OF THE UNITED STATES SHALL HAVE ORIGINAL
JURISDICTION, EXCLUSIVE OF THE COURTS OF THE STATES, OF ALL OFFENSES
AGAINST THE LAWS OF THE UNITED STATES. 

"NOTHING IN THIS TITLE SHALL BE HELD TO TAKE AWAY OR IMPAIR THE
JURISDICTION OF THE COURTS OF THE SEVERAL STATES UNDER THE LAWS
THEREOF." 

THE OFFICE OF THE SECOND SENTENCE IS MERELY TO LIMIT THE EFFECT OF
THE JURISDICTIONAL GRANT OF THE FIRST SENTENCE.  THERE WAS NO INTENTION
TO RESOLVE PARTICULAR SUPERSESSION QUESTIONS BY THE SECTION. 

FN11  SEE APPENDIX, POST, P. 511.  SEE ALSO THE VOORHIS ACT PASSED IN
1940, NOW CODIFIED AS 18 U.S.C. SEC. 2386, AND THE FOREIGN AGENTS
REGISTRATION ACT PASSED IN 1938, 22 U.S.C.  SEC. 611 ET SEQ. 

FN12  50 U.S.C. SEC. 781 ET SEQ. 

FN13  ID., SEC. 782(3), (4). 

FN14 ID., SEC. 786. 

FN15  ID., SEC. 787. 

FN16  ID., SEC. 794(A). 

FN17  ID., SECS. 784, 785, 789, 790. 

FN18  50 U.S.C. (1955 SUPP.) SEC. 841. 

FN19  ID., SEC. 843. 

FN20  ID., SEC. 782(4A). 

FN21  IT IS WORTH OBSERVING THAT IN HINES THIS COURT HELD A
PENNSYLVANIA STATUTE PROVIDING FOR ALIEN REGISTRATION WAS SUPERSEDED BY
TITLE III OF THE SAME ACT OF WHICH THE COMMONLY CALLED SMITH ACT WAS
TITLE I. TITLE II AMENDED CERTAIN STATUTES DEALING WITH THE EXCLUSION
AND DEPORTATION OF ALIENS.  THE PROVISIONS OF TITLE I INVOLVE A FIELD
OF NO LESS DOMINANT FEDERAL INTEREST THAN TITLES II AND III, IN WHICH
CONGRESS MANIFESTLY DID NOT DESIRE CONCURRENT STATE ACTION. 

FN22  50 U.S.C. SEC. 781(15). 

FN23  UNITED STATES V. MESAROSH (NELSON), 116 F. SUPP. 345, AFF'D,
223 F.2D 449, CERT. GRANTED, 350 U.S. 922. 

FN24  377 PA., AT 76, 104 A.2D, AT 142. 

FN25  THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT, 1939
VOLUME, PP. 478-479 (1941). 

FN26  PROCEEDINGS, P. 23. 

FN27  377 PA., AT 74-75, 104 A.2D, AT 141. 

FN28  E.G., COMPARE FLA. STAT., 1953, SEC. 876.02:  "ANY PERSON WHO -
...  (5) BECOMES A MEMBER OF, ASSOCIATED WITH OR PROMOTES THE INTEREST
OF ANY CRIMINAL ANARCHISTIC, COMMUNISTIC, NAZI-ISTIC OR FASCISTIC
ORGANIZATION,  ...  SHALL BE GUILTY OF A FELONY  ...  ," WITH 50 U.S.C.
SEC. 783(F): "NEITHER THE HOLDING OF OFFICE NOR MEMBERSHIP IN ANY
COMMUNIST ORGANIZATION BY ANY PERSON SHALL CONSTITUTE PER SE A
VIOLATION OF SUBSECTION (A) OR SUBSECTION (C) OF THIS SECTION OR OF ANY
OTHER CRIMINAL STATUTE.  THE FACT OF THE REGISTRATION OF ANY PERSON
UNDER SECTION 787 OR SECTION 788 OF THIS TITLE AS AN OFFICER OR MEMBER
OF ANY COMMUNIST ORGANIZATION SHALL NOT BE RECEIVED IN EVIDENCE AGAINST
SUCH PERSON IN ANY PROSECUTION FOR ANY ALLEGED VIOLATION OF SUBSECTION
(A) OR SUBSECTION (C) OF THIS SECTION OR FOR ANY ALLEGED VIOLATION OF
ANY OTHER CRIMINAL STATUTE." 

FN29  GARNER V. TEAMSTERS UNION, 346 U.S. 485, 490-491. 

FN30  BUT SEE GRANT, THE LANZA RULE OF SUCCESSIVE PROSECUTIONS, 32
COL. L. REV. 1309. 

FOR DISSENTING OPINION OF MR. JUSTICE REED, JOINED BY MR. JUSTICE
BURTON AND MR. JUSTICE MINTON, SEE POST, P. 512. 

                     APPENDIX. 

PENNSYLVANIA PENAL CODE SEC. 207. 

THE WORD "SEDITION," AS USED IN THIS SECTION, SHALL MEAN: 

ANY WRITING, PUBLICATION, PRINTING, CUT, CARTOON, UTTERANCE, OR
CONDUCT, EITHER INDIVIDUALLY OR IN CONNECTION OR COMBINATION WITH ANY
OTHER PERSON, THE INTENT OF WHICH IS: 

(A)  TO MAKE OR CAUSE TO BE MADE ANY OUTBREAK OR DEMONSTRATION OF
VIOLENCE AGAINST THIS STATE OR AGAINST THE UNITED STATES. 

(B)  TO ENCOURAGE ANY PERSON TO TAKE ANY MEASURES OR ENGAGE IN ANY
CONDUCT WITH A VIEW OF OVERTHROWING OR DESTROYING OR ATTEMPTING TO
OVERTHROW OR DESTROY, BY ANY FORCE OR SHOW OR THREAT OF FORCE, THE
GOVERNMENT OF THIS STATE OR OF THE UNITED STATES. 

(C)  TO INCITE OR ENCOURAGE ANY PERSON TO COMMIT ANY OVERT ACT WITH A
VIEW TO BRINGING THE GOVERNMENT OF THIS STATE OR OF THE UNITED STATES
INTO HATRED OR CONTEMPT. 

(D)  TO INCITE ANY PERSON OR PERSONS TO DO OR ATTEMPT TO DO PERSONAL
INJURY OR HARM TO ANY OFFICER OF THIS STATE OF THE UNITED STATES, OR TO
DAMAGE OR DESTROY ANY PUBLIC PROPERTY OR THE PROPERTY OF ANY PUBLIC
OFFICIAL BECAUSE OF HIS OFFICIAL POSITION. 

THE WORD "SEDITION" SHALL ALSO INCLUDE: 

(E) THE ACTUAL DAMAGE TO, OR DESTRUCTION OF, ANY PUBLIC PROPERTY OR
THE PROPERTY OF ANY PUBLIC OFFICIAL, PERPETRATED BECAUSE THE OWNER OR
OCCUPANT IS IN OFFICIAL POSITION. 

(F)  ANY WRITING, PUBLICATION, PRINTING, CUT, CARTOON, OR UTTERANCE
WHICH ADVOCATES OR TEACHES THE DUTY, NECESSITY, OR PROPRIETY OF
ENGAGING IN CRIME, VIOLENCE, OR ANY FORM OF TERRORISM, AS A MEANS OF
ACCOMPLISHING POLITICAL REFORM OR CHANGE IN GOVERNMENT. 

(G)  THE SALE, GIFT OR DISTRIBUTION OF ANY PRINTS, PUBLICATIONS,
BOOKS, PAPERS, DOCUMENTS, OR WRITTEN MATTER IN ANY FORM, WHICH
ADVOCATES, FURTHERS OR TEACHES SEDITION AS HEREINBEFORE DEFINED. 

(H)  ORGANIZING OR HELPING TO ORGANIZE OR BECOMING A MEMBER OF ANY
ASSEMBLY, SOCIETY, OR GROUP, WHERE ANY OF THE POLICIES OR PURPOSES
THEREOF ARE SEDITIOUS AS HEREINBEFORE DEFINED. 

SEDITION SHALL BE A FELONY.  WHOEVER IS GUILTY OF SEDITION SHALL,
UPON CONVICTION THEREOF, BE SENTENCED TO PAY A FINE NOT EXCEEDING TEN
THOUSAND DOLLARS ($10,000), OR TO UNDERGO IMPRISONMENT NOT EXCEEDING
TWENTY (20) YEARS, OR BOTH. 

          18 U.S.C. SEC. 2385. 

WHOEVER KNOWINGLY OR WILLFULLY ADVOCATES, ABETS, ADVISES, OR TEACHES
THE DUTY, NECESSITY, DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR
DESTROYING THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF ANY
STATE, TERRITORY, DISTRICT OR POSSESSION THEREOF, OR THE GOVERNMENT OF
ANY POLITICAL SUBDIVISION THEREIN, BY FORCE OR VIOLENCE, OR BY THE
ASSASSINATION OF ANY OFFICER OF ANY SUCH GOVERNMENT; OR: 

WHOEVER, WITH INTENT TO CAUSE THE OVERTHROW OR DESTRUCTION OF ANY
SUCH GOVERNMENT, PRINTS, PUBLISHES, EDITS, ISSUES, CIRCULATES, SELLS,
DISTRIBUTES, OR PUBLICLY DISPLAYS ANY WRITTEN OR PRINTED MATTER
ADVOCATING, ADVISING, OR TEACHING THE DUTY, NECESSITY, DESIRABILITY, OR
PROPRIETY OF OVERTHROWING OR DESTROYING ANY GOVERNMENT IN THE UNITED
STATES BY FORCE OR VIOLENCE, OR ATTEMPTS TO DO SO; OR: 

WHOEVER ORGANIZES OR HELPS OR ATTEMPTS TO ORGANIZE ANY SOCIETY,
GROUP, OR ASSEMBLY OF PERSONS WHO TEACH, ADVOCATE, OR ENCOURAGE THE
OVERTHROW OR DESTRUCTION OF ANY SUCH GOVERNMENT BY FORCE OR VIOLENCE;
OR BECOMES OR IS A MEMBER OF, OR AFFILIATES WITH, ANY SUCH SOCIETY,
GROUP, OR ASSEMBLY OF PERSONS, KNOWING THE PURPOSES THEREOF: 

SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH, AND SHALL BE INELIGIBLE FOR EMPLOYMENT BY THE UNITED
STATES OR ANY DEPARTMENT OR AGENCY THEREOF, FOR THE FIVE YEARS NEXT
FOLLOWING HIS CONVICTION. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

THE PROBLEMS OF GOVERNMENTAL POWER MAY BE APPROACHED IN THIS CASE
FREE FROM THE VARIED VIEWPOINTS THAT FOCUS ON THE PROBLEMS OF NATIONAL
SECURITY.  THIS IS A JURISDICTIONAL PROBLEM OF GENERAL IMPORTANCE
BECAUSE IT INVOLVES AN ASSERTED LIMITATION ON THE POLICE POWER OF THE
STATES WHEN IT IS APPLIED TO A CRIME THAT IS PUNISHABLE ALSO BY THE
FEDERAL GOVERNMENT.  AS THIS IS A RECURRING PROBLEM, IT IS APPROPRIATE
TO EXPLAIN OUR DISSENT.    CONGRESS HAS NOT, IN ANY OF ITS STATUTES
RELATING TO SEDITION, SPECIFICALLY BARRED THE EXERCISE OF STATE POWER
TO PUNISH THE SAME ACTS UNDER STATE LAW.  AND, WE READ THE MAJORITY
OPINION TO ASSUME FOR THIS CASE THAT, ABSENT FEDERAL LEGISLATION, THERE
IS NO CONSTITUTIONAL BAR TO PUNISHMENT OF SEDITION AGAINST THE UNITED
STATES BY BOTH A STATE AND THE NATION.  (FN1)  THE MAJORITY LIMITS TO
THE FEDERAL COURTS THE POWER TO TRY CHARGES OF SEDITION AGAINST THE
FEDERAL GOVERNMENT. 

FIRST, THE COURT RELIES UPON THE PERVASIVENESS OF THE ANTISUBVERSIVE
LEGISLATION, EMBODIED IN THE SMITH ACT OF 1940, 18 U.S.C. SEC. 2385,
THE INTERNAL SECURITY ACT OF 1950, 64 STAT.  987, AND THE COMMUNIST
CONTROL ACT OF 1954, 68 STAT. 775.  IT ASSERTS THAT THESE ACTS IN THE
AGGREGATE MEAN THAT CONGRESS HAS OCCUPIED THE "FIELD OF SEDITION" TO
THE EXCLUSION OF THE STATES.  THE "OCCUPATION OF THE FIELD" ARGUMENT
HAS BEEN DEVELOPED BY THIS COURT FOR THE COMMERCE CLAUSE AND
LEGISLATION THEREUNDER TO PREVENT PARTITIONING OF THIS COUNTRY BY
LOCALLY ERECTED TRADE BARRIERS.  IN THOSE CASES THIS COURT HAS RULED
THAT STATE LEGISLATION IS SUPERSEDED WHEN IT CONFLICTS WITH THE
COMPREHENSIVE REGULATORY SCHEME AND PURPOSE OF A FEDERAL PLAN. 
CLOVERLEAF BUTTER CO. V. PATTERSON, 315 U.S. 148.  THE TWO CASES CITED
BY THE COURT TO SUPPORT ITS ARGUMENT THAT THE BROAD TREATMENT OF ANY
SUBJECT WITHIN THE FEDERAL POWER BARS SUPPLEMENTAL ACTION BY STATES ARE
OF THIS NATURE.  IN OUR VIEW NEITHER CASE IS APPOSITE TO THE SMITH
ACT.  THE VARNVILLE CASE DEALT WITH GENERAL REGULATION OF INTERSTATE
COMMERCE MAKING THE ORIGINATING CARRIER LIABLE TO THE HOLDER OF ITS
INTERSTATE BILL OF LADING FOR DAMAGE CAUSED BY A COMMON CARRIER OF
PROPERTY.  THIS COURT HELD THAT THE SECTION THROUGH THE FEDERAL
COMMERCE POWER SUPERSEDED A STATE RIGHT OF ACTION AGAINST A
NONORIGINATING CARRIER FOR DAMAGES AND A PENALTY FOR INJURY OCCURRING
ON ANOTHER LINE.  THE PERTINENT SECTION, 34 STAT. 595, SEC. 7,
EXPRESSED A CONTROLLING FEDERAL POLICY FOR THIS COMMERCE.  THE RICE
CASE DEALT WITH REGULATIONS OF WAREHOUSES.  WE BARRED STATE ACTION IN
THAT AREA BECAUSE THE ACT DECLARED THAT THE AUTHORITY IT CONFERRED
"SHALL BE EXCLUSIVE WITH RESPECT TO ALL PERSONS SECURING A LICENSE"
UNDER THE ACT.  331 U.S., AT 224 AND 233. 

BUT THE FEDERAL SEDITION LAWS ARE DISTINCT CRIMINAL STATUTES THAT
PUNISH WILLFUL ADVOCACY OF THE USE OF FORCE AGAINST "THE GOVERNMENT OF
THE UNITED STATES OR THE GOVERNMENT OF ANY STATE."  THESE CRIMINAL LAWS
PROSCRIBE CERTAIN LOCAL ACTIVITY WITHOUT CREATING ANY STATUTORY OR
ADMINISTRATIVE REGULATION.  THERE IS, CONSEQUENTLY, NO QUESTION AS TO
WHETHER SOME GENERAL CONGRESSIONAL REGULATORY SCHEME MIGHT BE UPSET BY
A COINCIDING STATE PLAN.  (FN2)  IN THESE CIRCUMSTANCES THE CONFLICT
SHOULD BE CLEAR AND DIRECT BEFORE THIS COURT READS A CONGRESSIONAL
INTENT TO VOID STATE LEGISLATION INTO THE FEDERAL SEDITION ACTS.  (FN3)
CHIEF JUSTICE MARSHALL WROTE: 

"TO INTERFERE WITH THE PENAL LAWS OF A STATE, WHERE THEY  ...  HAVE
FOR THEIR SOLE OBJECT THE INTERNAL GOVERNMENT OF THE COUNTRY, IS A VERY
SERIOUS MEASURE, WHICH CONGRESS CANNOT BE SUPPOSED TO ADOPT LIGHTLY, OR
INCONSIDERATELY  ...  .  IT WOULD BE TAKEN DELIBERATELY, AND THE
INTENTION WOULD BE CLEARLY AND UNEQUIVOCALLY EXPRESSED."  COHENS V.
VIRGINIA, 6 WHEAT.  264, 443. 

MOREOVER, IT IS QUITE APPARENT THAT SINCE 1940 CONGRESS HAS BEEN
KEENLY AWARE OF THE MAGNITUDE OF EXISTING STATE LEGISLATION PROSCRIBING
SEDITION.  IT MAY BE VALIDLY ASSUMED THAT IN THESE CIRCUMSTANCES THIS
COURT SHOULD NOT VOID STATE LEGISLATION WITHOUT A CLEAR MANDATE FROM
CONGRESS.  (FN4) 

WE CANNOT AGREE THAT THE FEDERAL CRIMINAL SANCTIONS AGAINST SEDITION
DIRECTED AT THE UNITED STATES ARE OF SUCH A PERVASIVE CHARACTER AS TO
INDICATE AN INTENTION TO VOID STATE ACTION. 

SECONDLY, THE COURT STATES THAT THE FEDERAL SEDITION STATUTES TOUCH A
FIELD "IN WHICH THE FEDERAL INTEREST IS SO DOMINANT" THEY MUST PRECLUDE
STATE LAWS ON THE SAME SUBJECT.  THIS CONCEPT IS SUGGESTED IN A COMMENT
ON HINES V. DAVIDOWITZ, 312 U.S. 52, IN THE RICE CASE, AT 230.  THE
COURT IN DAVIDOWITZ RULED THAT FEDERAL STATUTES COMPELLING ALIEN
REGISTRATION PRECLUDE ENFORCEMENT OF STATE STATUTES REQUIRING ALIEN
REGISTRATION.  WE READ DAVIDOWITZ TO TEACH NOTHING MORE THAN THAT, WHEN
THE CONGRESS PROVIDED A SINGLE NATION-WIDE INTEGRATED SYSTEM OF
REGULATION SO COMPLETE AS THAT FOR ALIENS' REGISTRATION (WITH
FINGERPRINTING, A SCHEDULING OF ACTIVITIES, AND CONTINUOUS INFORMATION
AS TO THEIR RESIDENCE), THE ACT BORE SO DIRECTLY ON OUR FOREIGN
RELATIONS AS TO MAKE IT EVIDENT THAT CONGRESS INTENDED ONLY ONE UNIFORM
NATIONAL ALIEN REGISTRATION SYSTEM.  (FN5) 

WE LOOK UPON THE SMITH ACT AS A PROVISION FOR CONTROLLING INCITEMENTS
TO OVERTHROW BY FORCE AND VIOLENCE THE NATION, OR ANY STATE, OR ANY
POLITICAL SUBDIVISION OF EITHER.  (FN6) SUCH AN EXERCISE OF FEDERAL
POLICE POWER CARRIES, WE THINK, NO SUCH DOMINANCY OVER SIMILAR STATE
POWERS AS MIGHT BE ATTRIBUTED TO CONTINUING FEDERAL REGULATIONS
CONCERNING FOREIGN AFFAIRS OR COINAGE, FOR EXAMPLE.  (FN7)  IN THE
RESPONSIBILITY OF NATIONAL AND LOCAL GOVERNMENTS TO PROTECT THEMSELVES
AGAINST SEDITION, THERE IS NO "DOMINANT INTEREST." 

WE ARE CITIZENS OF THE UNITED STATES AND OF THE STATE WHEREIN WE
RESIDE AND ARE DEPENDENT UPON THE STRENGTH OF BOTH TO PRESERVE OUR
RIGHTS AND LIBERTIES.  BOTH MAY ENACT CRIMINAL STATUTES FOR MUTUAL
PROTECTION UNLESS CONGRESS HAS OTHERWISE PROVIDED.  IT WAS SO HELD IN
GILBERT V. MINNESOTA, 254 U.S. 325.  IN GILBERT THE FEDERAL INTEREST IN
RAISING ARMIES DID NOT KEEP THIS COURT FROM PERMITTING MINNESOTA TO
PUNISH PERSONS WHO INTERFERED WITH ENLISTMENTS (ID., AT 326), EVEN
THOUGH A COMPREHENSIVE FEDERAL CRIMINAL LAW PROSCRIBED IDENTICAL
ACTIVITY.  40 STAT. 553.  WE DO NOT UNDERSTAND THAT CASE AS DOES THE
MAJORITY.  IN OUR VIEW THIS COURT TREATED THE MINNESOTA STATUTE ONLY
ALTERNATIVELY AS A POLICE MEASURE, P. 331.  MINNESOTA MADE IT UNLAWFUL
TO ADVOCATE "THAT MEN SHOULD NOT ENLIST IN THE MILITARY OR NAVAL FORCES
OF THE UNITED STATES."  IT WAS CONTENDED, PP. 327-328, THAT THE POWER
TO PUNISH SUCH ADVOCACY WAS "CONFERRED UPON CONGRESS AND WITHHELD FROM
THE STATES."  THIS COURT RULED AGAINST THE CONTENTION, SAYING: 

"AN ARMY, OF COURSE, CAN ONLY BE RAISED AND DIRECTED BY CONGRESS, IN
NEITHER HAS THE STATE POWER, BUT IT HAS POWER TO REGULATE THE CONDUCT
OF ITS CITIZENS AND TO RESTRAIN THE EXERTION OF BALEFUL INFLUENCES
AGAINST THE PROMPTINGS OF PATRIOTIC DUTY TO THE DETRIMENT OF THE
WELFARE OF THE NATION AND STATE.  TO DO SO IS NOT TO USURP A NATIONAL
POWER, IT IS ONLY TO RENDER A SERVICE TO ITS PEOPLE,  ...  ."  ID., AT
330-331.  (FN8) 

THIRDLY, THE COURT FINDS GROUND FOR ABROGATING PENNSYLVANIA'S
ANTISEDITION STATUTE BECAUSE, IN THE COURT'S VIEW, THE STATE'S
ADMINISTRATION OF THE ACT MAY HAMPER THE ENFORCEMENT OF THE FEDERAL
LAW.  QUOTATIONS ARE INSERTED FROM STATEMENTS OF PRESIDENT ROOSEVELT
AND MR. HOOVER, THE DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, TO
SUPPORT THE COURT'S POSITION.  BUT A READING OF THE QUOTATIONS LEADS US
TO CONCLUDE THAT THEIR PURPOSE WAS TO GAIN PROMPT KNOWLEDGE OF EVIDENCE
OF SUBVERSIVE ACTIVITIES SO THAT THE FEDERAL AGENCY COULD BE FULLY
ADVISED.  WE FIND NO SUGGESTION FROM ANY OFFICIAL SOURCE THAT STATE
OFFICIALS SHOULD BE LESS ALERT TO FERRET OUT OR PUNISH SUBVERSION.  THE
COURT'S ATTITUDE AS TO INTERFERENCE SEEMS TO US QUITE CONTRARY TO THAT
OF THE LEGISLATIVE AND EXECUTIVE DEPARTMENTS.  CONGRESS WAS ADVISED OF
THE EXISTING STATE SEDITION LEGISLATION WHEN THE SMITH ACT WAS ENACTED
AND HAS BEEN KEPT CURRENT WITH ITS SPREAD.  (FN9)  NO DECLARATION OF
EXCLUSIVENESS FOLLOWED.  IN THIS VERY CASE THE EXECUTIVE APPEARS BY
BRIEF OF THE DEPARTMENT OF JUSTICE, AMICUS CURIAE.  THE BRIEF
SUMMARIZES THIS POINT: 

"THE ADMINISTRATION OF THE VARIOUS STATE LAWS HAS NOT, IN THE COURSE
OF THE FIFTEEN YEARS THAT THE FEDERAL AND STATE SEDITION LAWS HAVE
EXISTED SIDE BY SIDE, IN FACT INTERFERED WITH, EMBARRASSED, OR IMPEDED
THE ENFORCEMENT OF THE SMITH ACT.  THE SIGNIFICANCE OF THIS ABSENCE OF
CONFLICT IN ADMINISTRATION OR ENFORCEMNT OF THE FEDERAL AND STATE
SEDITION LAWS WILL BE APPRECIATED WHEN IT IS REALIZED THAT THIS PERIOD
HAS INCLUDED THE STRESS OF WARTIME SECURITY REQUIREMENTS AND THE
FEDERAL INVESTIGATION AND PROSECUTION UNDER THE SMITH ACT OF THE
PRINCIPAL NATIONAL AND REGIONAL COMMUNIST LEADERS."  (FN10)  ID., AT 30
31. 

MERE FEAR BY COURTS OF POSSIBLE DIFFICULTIES DOES NOT SEEM TO US IN
THESE CIRCUMSTANCES A VALID REASON FOR OUSTING A STATE FROM EXERCISE OF
ITS POLICE POWER.  THOSE ARE MATTERS FOR LEGISLATIVE DETERMINATION. 

FINALLY, AND THIS ONE POINT SEEMS IN AND OF ITSELF DECISIVE, THERE IS
AN INDEPENDENT REASON FOR REVERSING THE PENNSYLVANIA SUPREME COURT. 
THE SMITH ACT APPEARS IN TITLE 18 OF THE UNITED STATES CODE, WHICH
TITLE CODIFIES THE FEDERAL CRIMINAL LAWS.  SECTION 3231 OF THAT TITLE
PROVIDES: 

"NOTHING IN THIS TITLE SHALL BE HELD TO TAKE AWAY OR IMPAIR THE
JURISDICTION OF THE COURTS OF THE SEVERAL STATES UNDER THE LAWS
THEREOF." 

THAT DECLARATION SPRINGS FROM THE FEDERAL CHARACTER OF OUR NATION. 
IT RECOGNIZES THE FACT THAT MAINTENANCE OF ORDER AND FAIRNESS RESTS
PRIMARILY WITH THE STATES.  THE SECTION WAS FIRST ENACTED IN 1825 AND
HAS APPEARED SUCCESSIVELY IN THE FEDERAL CRIMINAL LAWS SINCE THAT
TIME.  (FN11)  THIS COURT HAS INTERPRETED THE SECTION TO MEAN THAT
STATES MAY PROVIDE CONCURRENT LEGISLATION IN THE ABSENCE OF EXPLICIT
CONGRESSIONAL INTENT TO THE CONTRARY.  SEXTON V. CALIFORNIA, 189 U.S.
319, 324-325.  THE MAJORITY'S POSITION IN THIS CASE CANNOT BE
RECONCILED WITH THAT CLEAR AUTHORIZATION OF CONGRESS. 

THE LAW STANDS AGAINST ANY ADVOCACY OF VIOLENCE TO CHANGE ESTABLISHED
GOVERNMENTS.  FREEDOM OF SPEECH ALLOWS FULL PLAY TO THE PROCESSES OF
REASON.  THE STATE AND NATIONAL LEGISLATIVE BODIES HAVE LEGISLATED
WITHIN CONSTITUTIONAL LIMITS SO AS TO ALLOW THE WIDEST PARTICIPATION BY
THE LAW ENFORCEMENT OFFICERS OF THE RESPECTIVE GOVERNMENTS.  THE
INDIVIDUAL STATES WERE NOT TOLD THAT THEY ARE POWERLESS TO PUNISH LOCAL
ACTS OF SEDITION, NOMINALLY DIRECTED AGAINST THE UNITED STATES.  COURTS
SHOULD NOT INTERFERE.  WE WOULD REVERSE THE JUDGMENT OF THE SUPREME
COURT OF PENNSYLVANIA. 

FN1  NO PROBLEM OF DOUBLE PUNISHMENT EXISTS IN THIS CASE.  SEE THE
COURT'S OPINION, P. 499, AND ITS LAST PARAGRAPH, P. 509.  SEE UNITED
STATES V. LANZA, 260 U.S. 377, 382; THE FEDERALIST, NO. 32.  CF.
HOUSTON V. MOORE, 5 WHEAT.  1, STATEMENT AT P. 22 WITH THAT AT PP. 44
45. 

FN2  HUNT, FEDERAL SUPREMACY AND STATE ANTI-SUBVERSIVE LEGISLATION,
53 MICH. L. REV. 407, 427-428; NOTE, 55 COL. L. REV. 83, 90. 

FN3  GILBERT V. MINNESOTA, 254 U.S. 325, 328-333; REID V. COLORADO,
187 U.S. 137, 148; SINNOT V. DAVENPORT, 22 HOW.  227, 243; FOX V. OHIO,
5 HOW.  410, 432-435. 

FN4  FORTY-TWO STATES, ALONG WITH ALASKA AND HAWAII, NOW HAVE LAWS
WHICH PENALIZE THE ADVOCACY OF VIOLENT OVERTHROW OF THE FEDERAL OR
STATE GOVERNMENTS.  DIGEST OF THE PUBLIC RECORD OF COMMUNISM IN THE
UNITED STATESS (FUND FOR THE REPUBLIC, 1955) 266-306.  IN HEARINGS
BEFORE THE HOUSE JUDICIARY COMMITTEE ON THE PROPOSED SMITH ACT, BOTH
WITNESSES AND MEMBERS OF THE COMMITTEE MADE REFERENCES TO EXISTING
STATE SEDITION LAWS.  HEARINGS BEFORE SUBCOMMITTEE NO. 3, COMMITTEE ON
THE JUDICIARY, HOUSE OF REPRESENTATIVES, ON H.R.  5138, 76TH CONG., 1ST
SESS., PP. 7, 69, 83-85.  SIMILAR COMMENT WAS HEARD IN THE
CONGRESSIONAL DEBATES.  84 CONG. REC. 10452.  IN FACT, THE SMITH ACT
WAS PATTERNED ON THE NEW YORK CRIMINAL ANARCHY STATUTE.  COMMONWEALTH
V. NELSON, 377 PA. 58, 86, 104 A.2D 133, 147.  THE ORIGINAL TEXT OF THE
SMITH ACT IS SET OUT IN THE HEARINGS BEFORE SUBCOMMITTEE NO. 3, SUPRA,
P. 1, AND THE NEW YORK ACT MAY BE READ IN GITLOW V. NEW YORK, 268 U.S.
652, 654-655.  FURTHER EVIDENCE OF CONGRESSIONAL NOTICE OF STATE
LEGISLATION MAY BE FOUND SINCE THE PASSAGE OF THE SMITH ACT.  S. REP.
NO. 1358, 81ST CONG., 2D SESS., P. 9; H.R. REP. NO. 2980, 81ST CONG.,
2D SESS., P. 2; H.R. REP. NO. 1950, 81ST CONG., 2D SESS., PP. 25-46 (UN
AMERICAN ACTIVITIES COMMITTEE).  SEE 67 HARV. L. REV. 1419, 1420; 40
CORNELL L. REV. 130, 133. 

FN5  IN ALLEN-BRADLEY LOCAL V. BOARD, 315 U.S. 740, 749, WE SAID:
"IN THE HINES CASE, A FEDERAL SYSTEM OF ALIEN REGISTRATION WAS HELD TO
SUPERSEDE A STATE SYSTEM OF REGISTRATION.  BUT THERE WE WERE DEALING
WITH A PROBLEM WHICH HAD AN IMPACT ON THE GENERAL FIELD OF FOREIGN
RELATIONS.  THE DELICACY OF THE ISSUES WHICH WERE POSED ALONE RAISED
GRAVE QUESTIONS AS TO THE PROPRIETY OF ALLOWING A STATE SYSTEM OF
REGULATION TO FUNCTION ALONGSIDE OF A FEDERAL SYSTEM.  IN THAT FIELD,
ANY 'CONCURRENT STATE POWER THAT MAY EXIST IS RESTRICTED TO THE
NARROWEST OF LIMITS.'  P. 68.  THEREFORE, WE WERE MORE READY TO
CONCLUDE THAT A FEDERAL ACT IN A FIELD THAT TOUCHED INTERNATIONAL
RELATIONS SUPERSEDED STATE REGULATION THAN WE WERE IN THOSE CASES WHERE
A STATE WAS EXERCISING ITS HISTORIC POWERS OVER SUCH TRADITIONALLY
LOCAL MATTERS AS PUBLIC SAFETY AND ORDER AND THE USE OF STREETS AND
HIGHWAYS." 

THE DAVIDOWITZ CASE IS DISTINGUISHABLE ON OTHER GROUNDS.  ALIEN
REGISTRATION IS NOT DIRECTLY RELATED TO CONTROL OF UNDESIREABLE
CONDUCT; CONSEQUENTLY THERE IS NO IMPERATIVE PROBLEM OF LOCAL LAW
ENFORCEMENT.  102 PA. L. REV., AT 1091.  THERE IS ALSO CONSIDERABLE
LEGISLATIVE HISTORY BEHIND THE ALIEN REGISTRATION ACT WHICH SUGGESTS
THAT CONGRESS WAS TRYING TO AVOID OVERBURDENING OF ALIENS; SOME
FEATURES OF THE CONFLICTING STATE LAW HAD BEEN EXPRESSLY REJECTED BY
CONGRESS.  312 U.S., AT 71-73.  SEE 39 MINN. L. REV. 213.  IT SHOULD BE
NOTED ALSO THAT THE COINCIDENCE BETWEEN THE STATE AND FEDERAL LAWS IN
THE DAVIDOWITZ CASE WAS SO GREAT THAT NO REAL PURPOSE WAS SERVED BY THE
STATE LAW.  34 BOSTON U.L. REV. 514, 517-518.    STATES ARE BARRED BY
THE CONSTITUTION FROM ENTERING INTO TREATIES AND BY 18 U.S.C.  SEC. 953
FROM CORRESPONDENCE OR INTERCOURSE WITH FOREIGN GOVERNMENTS WITH
RELATION TO THEIR DISPUTES OR CONTROVERSIES WITH THIS NATION. 

FN6  SUCH EFFORTS MAY BE PUNISHABLE CRIMES.  DENNIS V. UNITED STATES,
341 U.S. 494, 508-510. 

FN7  IT SEEMS QUITE REASONABLE TO BELIEVE "THAT THE EXCLUSION
PRINCIPLE IS TO BE MORE STRICTLY APPLIED WHEN THE CONGRESS ACTS IN A
FIELD WHEREIN THE CONSTITUTIONAL GRANT OF POWER TO THE FEDERAL
GOVERNMENT IS EXCLUSIVE, AS IN ITS RIGHT TO PROTECT INTERSTATE COMMERCE
AND TO CONTROL INTERNATIONAL RELATIONS."  ALBERTSON V. MILLARD, 106 F.
SUPP.  635, 641. 

FN8  MR. JUSTICE BRANDEIS, DISSENTING, EMPHASIZED THE RULING HERE
APPLICABLE THUS: 

"CONGRESS HAS THE EXCLUSIVE POWER TO LEGISLATE CONCERNING THE ARMY
AND THE NAVY OF THE UNITED STATES, AND TO DETERMINE, AMONG OTHER
THINGS, THE CONDITIONS OF ENLISTMENT  ...  . 

"  ...  AS EXCLUSIVE POWER OVER ENLISTMENTS IN THE ARMY AND THE NAVY
OF THE UNITED STATES AND THE RESPONSIBILITY FOR THE CONDUCT OF WAR IS
VESTED BY THE FEDERAL CONSTITUTION IN CONGRESS, LEGISLATION BY A STATE
ON THIS SUBJECT IS NECESSARILY VOID UNLESS AUTHORIZED BY CONGRESS  ...
.  HERE CONGRESS NOT ONLY HAD EXCLUSIVE POWER TO ACT ON THE SUBJECT; IT
HAD EXERCISED THAT POWER DIRECTLY BY THE ESPIONAGE LAW BEFORE GILBERT
SPOKE THE WORDS FOR WHICH HE WAS SENTENCED  ...  .  THE STATES MAY NOT
PUNISH TREASON AGAINST THE UNITED STATES  ...  ALTHOUGH INDIRECTLY ACTS
OF TREASON MAY AFFECT THEM VITALLY.  NO MORE MAY THEY ARROGATE TO
THEMSELVES AUTHORITY TO PUNISH THE TEACHING OF PACIFISM WHICH THE
LEGISLATURE OF MINNESOTA APPEARS TO HAVE PUT INTO THAT CATEGORY."  ID.,
AT 336-343. 

FN9  SEE NOTE 4, SUPRA. 

FN10  THE BRIEF ADDED, P. 31:  "  ...  THE ATTORNEY GENERAL OF THE
UNITED STATES RECENTLY INFORMED THE ATTORNEYS GENERAL OF THE SEVERAL
STATES  ...  THAT A FULL MEASURE OF FEDERAL-STATE COOPERATION WOULD BE
IN THE PUBLIC INTEREST.  SEE NEW YORK TIMES, SEPT. 15, 1955, P. 19." 

FN11  4 STAT. 115, 122-123; 18 U.S.C.A. SEC. 3231 (HISTORICAL AND
REVISION NOTES). 
..END :








IN RE APPLICATION OF BURWELL 350 U.S. 521 


NO. 736.  DECIDED APRIL 2, 1956 - CERTIFICATES DISMISSED. 


1.  A COURT OF APPEALS HAS JURISDICTION TO ENTERTAIN APPLICATIONS FOR
CERTIFICATES OF PROBABLE CAUSE, UNDER 28 U.S.C. SEC. 2253, ADDRESSED TO
THAT COURT INSTEAD OF TO A JUDGE OR JUDGES THEREOF.  P. 522. 

2.  IT IS FOR THE COURT OF APPEALS TO DETERMINE WHETHER AN
APPLICATION TO THAT COURT FOR A CERTIFICATE OF PROBABLE CAUSE UNDER 28
U.S.C. SEC. 2253 IS TO BE CONSIDERED BY A PANEL OF THAT COURT, BY ONE
OF ITS JUDGES, OR IN SOME OTHER WAY THAT THE COURT DEEMS APPROPRIATE. 
P. 522. 

3.  IT IS NOT FOR THIS COURT TO PRESCRIBE HOW THE DISCRETION VESTED
IN A COURT OF APPEALS, ACTING UNDER 28 U.S.C. SEC. 2253, SHOULD BE
EXERCISED; AND, SO LONG AS THAT COURT KEEPS WITHIN THE BOUNDS OF
JUDICIAL DISCRETION, ITS ACTION IS NOT REVIEWABLE.  P. 522. 

IN RE APPLICATION OF BURWELL. 

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT.* 

*TOGETHER WITH NO. 737, IN RE APPLICATION OF ROGERS, ALSO ON
CERTIFICATE FROM THE SAME COURT. 

PER CURIAM. 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT HAS CERTIFIED TO THIS
COURT THE FOLLOWING THREE QUESTIONS: 

"(1)  HAS CONGRESS CREATED IN THE COURT OF APPEALS, AS A COURT, THE
JURISDICTION TO ISSUE A CERTIFICATE OF PROBABLE CAUSE, SOUGHT FROM THE
COURT, AS A COURT, BY THE PROVISIONS OF 28 U.S.C. SEC. 2253, REPLACING
THE REPEALED 28 U.S.C. SEC. 466? 

"(2)  IF THE SUPREME COURT HOLDS THAT CONGRESS HAS NOT GIVEN THE
COURTS OF APPEAL SUCH JURISDICTION, DID THE SUPREME COURT CREATE THAT
JURISDICTION, BY ITS PER CURIAM OPINION, RENDERED WITHOUT ARGUMENT,
WHICH FAILED TO CONSIDER 28 U.S.C. SEC. 2253 AND WAS BASED ON THE
REPEALED 28 U.S.C. SEC. 466 AND HOUSE V. MAYO, 324 U.S. 42, 48 (1945),
AND ITS REMAND TO THIS COURT 'SO THAT THE PETITIONER'S APPLICATION FOR
A CERTIFICATE OF PROBABLE CAUSE MAY BE ENTERTAINED ON ITS MERITS'? 

"(3)  IF THE SUPREME COURT HOLDS THAT CONGRESS OR THE COURT CREATES
SUCH JURISDICTION BY 28 U.S.C. SEC. 2253 AND THAT HOUSE V. MAYO
APPLIES, DOES ITS MANDATE MEAN THAT ALL THE JUDGES, AS JUDGES, OR SOME
INDIVIDUAL JUDGE, OR THE COURT AS A COURT SHALL CONSIDER THE PETITION
FOR A CERTIFICATE OF PROBABLE CAUSE?" 

EARLIER THIS TERM WE WERE CONSTRAINED TO FIND THAT THE COURT OF
APPEALS FOR THE NINTH CIRCUIT WAS IN ERROR IN DEEMING ITSELF WITHOUT
JURISDICTION TO ENTERTAIN APPLICATIONS FOR CERTIFICATES OF PROBABLE
CAUSE, UNDER 28 U.S.C. SEC. 2253, ADDRESSED TO THAT COURT INSTEAD OF TO
A JUDGE OR JUDGES THEREOF.  ACCORDINGLY, WE REVERSED THE JUDGMENTS IN
THESE CASES.  BURWELL V. TEETS, 350 U.S. 808; ROGERS V. TEETS, 350 U.S.
809.  EACH OF THESE CASES WAS REVERSED "SO THAT THE PETITIONER'S
APPLICATION FOR A CERTIFICATE OF PROBABLE CAUSE MAY BE ENTERTAINED ON
ITS MERITS." 

WE DID NOT ATTEMPT TO LAY DOWN A PROCEDURE FOR THE COURT OF APPEALS
TO FOLLOW FOR THE ENTERTAINMENT OF SUCH APPLICATIONS ON THEIR MERITS. 
WE SHALL NOT DO SO NOW.  IT IS FOR THE COURT OF APPEALS TO DETERMINE
WHETHER SUCH AN APPLICATION TO THE COURT IS TO BE CONSIDERED BY A PANEL
OF THE COURT OF APPEALS, BY ONE OF ITS JUDGES, OR IN SOME OTHER WAY
DEEMED APPROPRIATE BY THE COURT OF APPEALS WITHIN THE SCOPE OF ITS
POWERS.  CF. WESTERN PACIFIC R. CORP. V. WESTERN PACIFIC R. CO., 345
U.S. 247.  IT IS NOT FOR THIS COURT TO PRESCRIBE HOW THE DISCRETION
VESTED IN A COURT OF APPEALS, ACTING UNDER 28 U.S.C. SEC.  2253, SHOULD
BE EXERCISED.  SEE UNITED STATES V. ROSENBURGH, 7 WALL.  580.  AS LONG
AS THAT COURT KEEPS WITHIN THE BOUNDS OF JUDICIAL DISCRETION, ITS
ACTION IS NOT REVIEWABLE. 

THE ENTIRE CERTIFICATE IN EACH OF THESE CASES MUST BE DISMISSED. 
..END :




















UNITED STATES V. GREEN 350 U.S. 415 


NO. 54.  ARGUED FEBRUARY 27, 1956 - DECIDED MARCH 26, 1956 - 135 F.
SUPP. 162, REVERSED. 


OBSTRUCTION OF INTERSTATE COMMERCE OR AN ATTEMPT TO DO SO THROUGH THE
WRONGFUL USE BY A LABOR UNION OR ITS AGENTS OF ACTUAL OR THREATENED
FORCE, VIOLENCE OR FEAR, IN AN ATTEMPT TO COMPEL AN EMPLOYER TO PAY
"WAGES" TO MEMBERS OF THE UNION FOR IMPOSED, UNWANTED, SUPERFLUOUS AND
FICTITIOUS "SERVICES," IS A VIOLATION OF THE HOBBS ACT, 18 U.S.C. SEC.
1951.  PP. 416-421. 

(A)  THE COVERAGE OF 18 U.S.C. SEC. 1951 IS NOT CONFINED TO ATTEMPTS
TO OBTAIN MONEY OR OTHER PROPERTY FOR THE EXTORTIONER'S PERSONAL
ADVANTAGE; IT APPLIES ALSO TO ATTEMPTS BY A UNION OR ITS AGENTS TO GET
JOBS AND PAY FOR ITS MEMBERS BY THREATS AND VIOLENCE.  PP. 418-420. 

(B)  THE LEGISLATIVE HISTORY OF THE ACT SHOWS THAT IT WAS INTENDED TO
COVER THE EMPLOYER-EMPLOYEE RELATIONSHIP.  PP. 418-419. 

(C)  A DIFFERENT RESULT IS NOT REQUIRED BY THE PROVISION OF TITLE II
OF THE HOBBS ACT THAT IT SHOULD NOT AFFECT THE CLAYTON ACT, THE NORRIS
LAGUARDIA ACT, THE RAILWAY LABOR ACT OR THE NATIONAL LABOR RELATIONS
ACT, SINCE THERE IS NOTHING IN THOSE ACTS INDICATING ANY PROTECTION FOR
UNIONS OR THEIR OFFICIALS IN ATTEMPTS TO GET PERSONAL PROPERTY THROUGH
THREATS OF FORCE OR VIOLENCE.  PP. 419-420. 

(D)  SINCE THIS LEGISLATION IS DIRECTED AT THE PROTECTION OF
INTERSTATE COMMERCE AGAINST INJURY FROM EXTORTION, IT IS WITHIN THE
POWER OF CONGRESS.  PP. 420-421. 

UNITED STATES V. GREEN ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

AN INDICTMENT WAS FOUND IN THE SOUTHERN DISTRICT OF ILLINOIS AGAINST
APPELLEES GREEN AND A LOCAL UNION.  THE JURY ADJUDGED THEM GUILTY UNDER
COUNTS ONE AND TWO THEREOF.  THE COURT SUSTAINED THEIR SEPARATE MOTIONS
IN ARREST OF JUDGMENT, SETTING OUT IN ITS ORDER THAT ITS ACTION WAS
"SOLELY" ON THE FOLLOWING GROUNDS: 

"2. THIS COURT IS WITHOUT JURISDICTION OF THE OFFENSE. 

"(B)  THE FACTS ALLEGED IN THE INDICTMENT FAILED TO SET FORTH AN
OFFENSE AGAINST THE UNITED STATES SUCH AS TO GIVE THIS COURT
JURISDICTION. 

"(C)  A PROPER CONSTRUCTION OF THE STATUTE IN QUESTION CLEARLY
INDICATES THAT IT DOES NOT COVER THE TYPE OF ACTIVITY CHARGED IN THIS
INDICTMENT; TO INTERPRET THE ACT IN QUESTION AS COVERING THE TYPE OF
ACTIVITY CHARGED IN THIS INDICTMENT IS TO EXTEND THE JURISDICTION OF
THIS COURT AND THE POWER OF CONGRESS BEYOND THEIR CONSTITUTIONAL
LIMITS." 

APPEAL WAS TAKEN BY THE UNITED STATES DIRECTLY TO THIS COURT UNDER 18
U.S.C. SEC.  3731.  (FN1) WE NOTED PROBABLE JURISDICTION.  350 U.S.
813. 

THE TWO COUNTS IN QUESTION WERE BASED UPON ALLEGED VIOLATIONS OF 18
U.S.C. SEC. 1951, POPULARLY KNOWN AS THE HOBBS ACT.  THE PERTINENT
STATUTORY PROVISIONS ARE SUBSECTIONS (A) AND (B)(2) THEREOF, READING AS
FOLLOWS: 

"(A)  WHOEVER IN ANY WAY OR DEGREE OBSTRUCTS, DELAYS, OR AFFECTS
COMMERCE OR THE MOVEMENT OF ANY ARTICLE OR COMMODITY IN COMMERCE, BY
ROBBERY OR EXTORTION OR ATTEMPTS OR CONSPIRES SO TO DO, OR COMMITS OR
THREATENS PHYSICAL VIOLENCE TO ANY PERSON OR PROPERTY IN FURTHERANCE OF
A PLAN OR PURPOSE TO DO ANYTHING IN VIOLATION OF THIS SECTION SHALL BE
FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TWENTY YEARS,
OR BOTH. 

"(B)  ...  . 

"(2)  THE TERM 'EXTORTION' MEANS THE OBTAINING OF PROPERTY FROM
ANOTHER, WITH HIS CONSENT, INDUCED BY WRONGFUL USE OF ACTUAL OR
THREATENED FORCE, VIOLENCE, OR FEAR, OR UNDER COLOR OF OFFICIAL
RIGHT." 

EACH OF THE TWO COUNTS CHARGED APPELLEES WITH ACTS OF EXTORTION UNDER
SEC. 1951 DIRECTED AGAINST A DIFFERENT EMPLOYER.  THE EXTORTIONS
ALLEGED CONSISTED OF ATTEMPTS TO OBTAIN FROM THE PARTICULAR EMPLOYER: 

"HIS MONEY, IN THE FORM OF WAGES TO BE PAID FOR IMPOSED, UNWANTED,
SUPERFLUOUS AND FICTITIOUS SERVICES OF LABORERS COMMONLY KNOWN AS
SWAMPERS, IN CONNECTION WITH THE OPERATION OF MACHINERY AND EQUIPMENT
THEN BEING USED AND OPERATED BY SAID EMPLOYER IN THE EXECUTION OF HIS
SAID CONTRACT FOR MAINTENANCE WORK ON SAID LEVEE, THE ATTEMPTED
OBTAINING OF SAID PROPERTY FROM SAID EMPLOYER AS AFORESAID BEING THEN
INTENDED TO BE ACCOMPLISHED AND ACCOMPLISHED WITH THE CONSENT OF SAID
EMPLOYER, INDUCED AND OBTAINED BY THE WRONGFUL USE, TO WIT, THE USE FOR
THE PURPOSES AFORESAID, OF ACTUAL AND THREATENED FORCE, VIOLENCE AND
FEAR MADE TO SAID EMPLOYER, AND HIS EMPLOYEES AND AGENTS THEN AND THERE
BEING; IN VIOLATION OF SECTION 1951 OF TITLE 18, UNITED STATES CODE." 

APPELLEES EACH FILED MOTIONS FOR ACQUITTAL OR IN THE ALTERNATIVE FOR
A NEW TRIAL.  THESE THE TRIAL COURT SPECIFICALLY DENIED.  THE OPINION
OF THE TRIAL COURT, 135 F. SUPP. 162, SAYS NOTHING AS TO FAILURE OF
EVIDENCE TO SUPPORT THE ALLEGATIONS OF THE INDICTMENT, OR AS TO TRIAL
ERRORS.  INSTEAD THE COURT RELIED UPON THE ABSENCE OF CRIMINALITY IN
THE ACTS CHARGED, AND IT WAS THEREFORE LOGICAL FOR THE TRIAL COURT TO
DENY ACQUITTAL AND NEW TRIAL.  (FN2)  THE COURT THOUGHT PERSUASIVE OUR
RECENT CASES WHICH HELD UNION EFFORTS TO SECURE "MADE WORK" FOR THEIR
MEMBERS WERE NOT UNFAIR LABOR PRACTICES.  (FN3)  FROM ITS VIEW THAT
EXTORTION AS DEFINED IN THE HOBBS ACT COVERS ONLY THE TAKING OF
PROPERTY FROM ANOTHER FOR THE EXTORTIONER'S PERSONAL ADVANTAGE, THE
NECESSITY TO ARREST THE JUDGMENT FOLLOWED.  RULE 34, FED. RULES CRIM.
PROC. 

WE DO NOT AGREE WITH THAT INTERPRETATION OF THE SECTION.  THE HOBBS
ACT WAS PASSED AFTER THIS COURT HAD CONSTRUED SEC. 2 OF THE FEDERAL
ANTI-RACKETEERING ACT OF 1934, 48 STAT. 979, IN UNITED STATES V. LOCAL
807, 315 U.S. 521.  SUBSECTION (A) OF SEC. 2 BARRED, WITH RESPECT TO
INTERSTATE COMMERCE, EXACTION OF VALUABLE CONSIDERATIONS BY FORCE,
VIOLENCE OR COERCION, "NOT INCLUDING, HOWEVER, THE PAYMENT OF WAGES BY
A BONA-FIDE EMPLOYER TO A BONA-FIDE EMPLOYEE."  WE HELD IN LOCAL 807
THAT THIS EXCEPTION COVERED MEMBERS OF A CITY TRUCK DRIVERS' UNION
OFFERING SUPERFLUOUS SERVICES TO DRIVE ARRIVING TRUCKS TO THEIR CITY
DESTINATION WITH INTENT, IF THE TRUCK OWNERS REFUSED THEIR OFFER, TO
EXACT THE WAGES BY VIOLENCE.  (FN4)  IN THE HOBBS ACT, 60 STAT. 420,
CARRIED FORWARD AS 18 U.S.C. SEC. 1951, WHICH AMENDED THE ANTI
RACKETEERING ACT, THE EXCLUSION CLAUSE INVOLVED IN THE LOCAL 807
DECISION WAS DROPPED.  THE LEGISLATIVE HISTORY MAKES CLEAR THAT THE NEW
ACT WAS MEANT TO ELIMINATE ANY GROUNDS FOR FUTURE JUDICIAL CONCLUSIONS
THAT CONGRESS DID NOT INTEND TO COVER THE EMPLOYER-EMPLOYEE
RELATIONSHIP.  (FN5)  THE WORDS WERE DEFINED TO AVOID ANY
MISUNDERSTANDING. 

TITLE II OF THE HOBBS ACT PROVIDES THAT THE PROVISIONS OF THE ACT
SHALL NOT AFFECT THE CLAYTON ACT, SECS. 6 AND 20, 38 STAT. 731, 738;
THE NORRIS-LAGUARDIA ACT, 47 STAT. 70; THE RAILWAY LABOR ACT, 44 STAT.
577; OR THE NATIONAL LABOR RELATIONS ACT, 49 STAT.  449.  (FN6)  THERE
IS NOTHING IN ANY OF THOSE ACTS, HOWEVER, THAT INDICATES ANY PROTECTION
FOR UNIONS OR THEIR OFFICIALS IN ATTEMPTS TO GET PERSONAL PROPERTY
THROUGH THREATS OF FORCE OR VIOLENCE.  THOSE ARE NOT LEGITIMATE MEANS
FOR IMPROVING LABOR CONDITIONS.  (FN7)  IF THE TRIAL COURT INTENDED BY
ITS REFERENCES TO THE NORRIS-LAGUARDIA AND WAGNER ACTS TO INDICATE ANY
SUCH LABOR EXCEPTION, WHICH WE DOUBT, IT WAS IN ERROR.  APPARENTLY WHAT
THE COURT MEANT IS MORE CLEARLY EXPRESSED BY ITS STATEMENT, SET OUT IN
THE LAST PARAGRAPH OF NOTE 2 ABOVE, THAT THE CHARGED ACTS WOULD BE
CRIMINAL ONLY IF THEY WERE USED TO OBTAIN PROPERTY FOR THE PERSONAL
BENEFIT OF THE UNION OR ITS AGENT, IN THIS CASE GREEN.  THIS LATTER
HOLDING IS ALSO ERRONEOUS.  THE CITY TRUCKERS IN THE LOCAL 807 CASE
SIMILARLY WERE TRYING BY FORCE TO GET JOBS AND PAY FROM THE OUT-OF
STATE TRUCKERS BY THREATS AND VIOLENCE.  THE HOBBS ACT WAS MEANT TO
STOP JUST SUCH CONDUCT.  AND EXTORTION AS DEFINED IN THE STATUTE IN NO
WAY DEPENDS UPON HAVING A DIRECT BENEFIT CONFERRED ON THE PERSON WHO
OBTAINS THE PROPERTY. 

IT IS ALSO STATED IN THE OPINION BELOW THAT TO INTERPRET THE ACT AS
COVERING THE ACTIVITY CHARGED WOULD "EXTEND THE JURISDICTION OF THE
COURT, AND THE POWER OF CONGRESS BEYOND THEIR CONSTITUTIONAL LIMITS." 
135 F. SUPP., AT 162.  THE SAME LANGUAGE IS IN ORDER.  SINCE IN OUR
VIEW THE LEGISLATION IS DIRECTED AT THE PROTECTION OF INTERSTATE
COMMERCE AGAINST INJURY FROM EXTORTION, THE COURT'S HOLDING IS CLEARLY
WRONG.  WE SAID IN THE LOCAL 807 CASE THAT RACKETEERING AFFECTING
INTERSTATE COMMERCE WAS WITHIN FEDERAL LEGISLATIVE CONTROL.  315 U.S.,
AT 536.  CF. CLEVELAND V. UNITED STATES, 329 U.S. 14, 19; MITCHELL V.
VOLLMER & CO., 349 U.S. 427. 

ON THIS APPEAL THE RECORD DOES NOT CONTAIN THE EVIDENCE UPON WHICH
THE COURT ACTED.  THE INDICTMENT CHARGES INTERFERENCE WITH COMMERCE BY
EXTORTION IN THE WORDS OF THE ACT'S DEFINITION OF THAT CRIME.  WE RULE
ONLY ON THE ALLEGATIONS OF THE INDICTMENT AND HOLD THAT THE ACTS
CHARGED AGAINST APPELLEES FALL WITHIN THE TERMS OF THE ACT.  THE ORDER
IN ARREST OF JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE
DISTRICT COURT.  IT IS SO ORDERED. 

FN1  "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 ARRESTING A JUDGMENT OF CONVICTION FOR INSUFFICIENCY
OF THE INDICTMENT OR INFORMATION, WHERE SUCH DECISION IS BASED UPON THE
INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT OR
INFORMATION IS FOUNDED." 

FN2  THE OPINION STATES: 

"IT IS NOW CONTENDED THAT THE INDICTMENT DOES NOT STATE A CAUSE OF
ACTION WITHIN THE MEANING OF THE ABOVE SECTION.  IN THE USUAL EXTORTION
CASE, THE EXTORTER IS OBTAINING MONEY OR PROPERTY OF ANOTHER FOR HIS
OWN BENEFIT  ...  .  IN THE CASE AT HAND, I CONCLUDE THAT GREEN'S
ORIGINAL ACTIVITY IN 'ATTEMPTING TO OBTAIN FROM ARTHUR W. TERRY, JR.,
HIS MONEY IN THE FORM OF WAGES TO BE PAID FOR IMPOSED, UNWANTED,
SUPERFLUOUS AND FICTITIOUS SERVICES OF LABORERS' WHICH SAID CHARGE WAS
SERIOUSLY CONTROVERTED, WAS OF ITSELF NOT A VIOLATION OF THIS STATUTE,
AND WITHIN HIS RIGHTS AND RESPONSIBILITIES AS A UNION REPRESENTATIVE,
WHICH WAS NOT PROHIBITED BY THIS STATUTE. 

     *         *         *         *         * 

"  ...  I CONCLUDE THAT THE TROUBLE IN THIS COMMUNITY AND ON THIS
PARTICULAR JOB WAS CAUSED BY A DISAGREEMENT BETWEEN THE CONTRACTOR AND
LABOR, AND WAS IN NO WISE AN ATTEMPT TO EXTORT FOR THE USE OF EITHER
THE UNION OR THE DEFENDANT GREEN, ANY MONEY OR PROPERTY OF THE
CONTRACTOR."  135 F. SUPP., AT 163, 164. 

FN3  SEE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION V. LABOR BOARD,
345 U.S. 100; LABOR BOARD V. GAMBLE ENTERPRISES, 345 U.S. 117. 

FN4  THE EXCEPTION WAS HELD ALSO TO PERMEATE THE ENTIRE ACT.  P. 527,
N. 2. 

FN5  BEGINNING SOON AFTER OUR DECISION IN THE LOCAL 807 CASE, A
SERIES OF BILLS WAS INTRODUCED IN CONGRESS LOOKING TOWARD AN AMENDMENT
TO THE ANTI-RACKETEERING ACT OF 1934.  S. 2347, 77TH CONG., 2D SESS.;
H.R. 6872, 77TH CONG., 2D SESS.; H.R. 7067, 77TH CONG., 2D SESS.; H.R.
653, 78TH CONG., 1ST SESS.; H.R. 32, 79TH CONG., 1ST SESS.  THE LAST OF
THESE BILLS, H.R. 32, SUPRA, WAS ENACTED AND BECAME THE HOBBS ACT, 62
STAT. 793.  THE HOUSE COMMITTEE ON THE JUDICIARY, IN ITS REPORT ON H.R.
32, STATED: 

"IT IS NOT THE INTENTION OF THE COMMITTEE THAT TITLE III ENACTED AS
TITLE II BE INTERPRETED AS AUTHORIZING ANY UNLAWFUL ACTS, PARTICULARLY
THOSE AMOUNTING TO ROBBERY OR EXTORTION.  THE NEED FOR THE LEGISLATION
WAS EMPHASIZED BY THE OPINION OF THE SUPREME COURT IN THE CASE OF
UNITED STATES V. LOCAL 807 (315 U.S. 521)."  H.R. REP. NO. 238, 79TH
CONG., 1ST SESS., P. 10.  SEE ALSO S. REP. NO. 1516, 79TH CONG., 2D
SESS. 

EACH OF THE PRIOR BILLS HAD THE SAME PURPOSE - AMENDING THE ANTI
RACKETEERING ACT SO AS TO CHANGE THE TERMS WHICH BROUGHT ABOUT THE
RESULT REACHED IN THE LOCAL 807 CASE.  SEE H.R. REP. NO. 2176, 77TH
CONG., 2D SESS.; H.R. REP. NO. 66, 78TH CONG., 1ST SESS.  AND SEE 91
CONG. REC. 11842, 11843, 11909, 11911, 11919, 11920. 

FN6  THE HOBBS ACT WAS ENACTED PRIOR TO THE LABOR MANAGEMENT
RELATIONS ACT OF 1947. 

FN7  CF. UNITED STATES V. RYAN, 350 U.S. 299; UNITED CONSTRUCTION
WORKERS V. LABURNUM CORP., 347 U.S. 656; ALLEN-BRADLEY LOCAL V.
WISCONSIN BOARD, 315 U.S. 740; LABOR BOARD V. FANSTEEL CORP., 306 U.S.
240; UNITED STATES V. KEMBLE, 198 F.2D 889. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

THE GOVERNMENT HAS NO RIGHT TO A DIRECT APPEAL TO THIS COURT UNDER 18
U.S.C. SEC. 3731 IF THE DISTRICT COURT JUDGMENT "WAS NOT PLACED SOLELY
UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE."  UNITED STATES V.
WAYNE PUMP CO., 317 U.S. 200, 208.  THE PRESENCE OF ANY ADDITIONAL AND
INDEPENDENT GROUND FOR THE DISTRICT COURT'S ORDER IS FATAL TO DIRECT
REVIEW HERE.  I AM CONVINCED THAT THERE IS SUCH AN INDEPENDENT GROUND
FOR THE DISTRICT COURT'S JUDGMENT IN THIS CASE.  IT IS EVIDENT FROM THE
DISTRICT JUDGE'S MEMORANDUM OPINION (135 F. SUPP. 162) THAT HIS ORDER
GRANTING THE MOTIONS IN ARREST OF JUDGMENT RESTED AT LEAST IN PART UPON
THE INSUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONVICTION.  HE
CONSIDERED FACTS NOT ALLEGED IN THE INDICTMENT, E.G., THAT CONTRACTORS
IN THE COMMUNITY HAD CUSTOMARILY AGREED TO THE EMPLOYMENT OF LABOR
WHICH ALLEGEDLY WAS DEMANDED BY APPELLEES, AND THAT THE TROUBLE ON THE
PARTICULAR JOB WAS CAUSED BY A DISAGREEMENT BETWEEN THE CONTRACTOR AND
LABOR, NOT BE AN ATTEMPT TO EXTORT.  I WOULD THEREFORE DISMISS THE
GOVERNMENT'S APPEAL. 
..END :













ULLMANN V. UNITED STATES 350 U.S. 422 


NO. 58.  ARGUED DECEMBER 6, 1955 - DECIDED MARCH 26, 1956 - 221 F.2D
760, AFFIRMED. 


PURSUANT TO SUBPOENA, PETITIONER APPEARED BEFORE A FEDERAL GRAND JURY
WHICH WAS INVESTIGATING ATTEMPTS TO ENDANGER THE NATIONAL SECURITY BY
ESPIONAGE AND CONSPIRACY TO COMMIT ESPIONAGE.  INVOKING THE PRIVILEGE
AGAINST SELF-INCRIMINATION, HE REFUSED TO ANSWER QUESTIONS RELATING TO
HIS KNOWLEDGE OF SUCH ACTIVITIES, TO HIS AND OTHER PERSONS'
PARTICIPATION IN SUCH ACTIVITIES, AND TO HIS AND OTHER PERSONS'
MEMBERSHIP IN THE COMMUNIST PARTY.  UNDER THE IMMUNITY ACT OF 1954, 18
U.S.C. SEC. 2486(C), THE UNITED STATES ATTORNEY, WITH THE APPROVAL OF
THE ATTORNEY GENERAL, APPLIED TO A FEDERAL DISTRICT COURT FOR AN ORDER
REQUIRING PETITIONER TO TESTIFY BEFORE THE GRAND JURY.  THE COURT
ISSUED SUCH AN ORDER; PETITIONER PERSISTED IN HIS REFUSAL TO TESTIFY;
AND HE WAS CONVICTED OF CONTEMPT AND SENTENCED TO IMPRISONMENT.  HELD:
THE ACT IS CONSTITUTIONAL AND THE CONVICTION IS SUSTAINED.  PP. 423
439. 

1.  THE ACT DOES NOT VIOLATE THE FIFTH AMENDMENT, BECAUSE THE
IMMUNITY WHICH IT PROVIDES AGAINST PROSECUTIONS, PENALTIES AND
FORFEITURES IS SUFFICIENTLY BROAD TO DISPLACE THE PROTECTION AFFORDED
BY THE PRIVILEGE AGAINST SELF-INCRIMINATION.  PP. 429-431. 

2.  ASSUMING THAT THE STATUTORY REQUIREMENTS ARE MET, SUBSECTION (C)
DOES NOT GIVE A FEDERAL DISTRICT COURT DISCRETION TO DENY AN
APPLICATION FOR AN ORDER REQUIRING A WITNESS TO ANSWER RELEVANT
QUESTIONS PUT BY A GRAND JURY, AND THEREFORE IT DOES NOT IMPOSE ON THE
COURT A NON-JUDICIAL FUNCTION.  PP. 431-434. 

3.  THE ACT PROVIDES IMMUNITY FROM STATE PROSECUTION FOR CRIME; AND,
IN DOING SO, IT DOES NOT EXCEED THE CONSTITUTIONAL POWER OF CONGRESS. 
PP. 434-436. 

4.  BROWN V. WALKER, 161 U.S. 591, REAFFIRMED AND FOLLOWED.  PP. 436
439. 

ULLMANN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON NOVEMBER 10, 1954, THE UNITED STATES ATTORNEY FOR THE SOUTHERN
DISTRICT OF NEW YORK FILED AN APPLICATION UNDER THE IMMUNITY ACT OF
1954, 68 STAT. 745, 18 U.S.C. (SUPP. II) SEC. 3486, FOR AN ORDER
REQUIRING PETITIONER TO TESTIFY BEFORE A GRAND JURY.  THE IMMUNITY ACT,
IN ITS PERTINENT PORTIONS, PROVIDES: 

"(C)  WHENEVER IN THE JUDGMENT OF A UNITED STATES ATTORNEY THE
TESTIMONY OF ANY WITNESS, OR THE PRODUCTION OF BOOKS, PAPERS, OR OTHER
EVIDENCE BY ANY WITNESS, IN ANY CASE OR PROCEEDING BEFORE ANY GRAND
JURY OR COURT OF THE UNITED STATES INVOLVING ANY INTERFERENCE WITH OR
ENDANGER, THE NATIONAL SECURITY OR DEFENSE OF THE UNITED STATES BY
TREASON, SABOTAGE, ESPIONAGE, SEDITION, SEDITIOUS CONSPIRACY,
VIOLATIONS OF CHAPTER 115 OF TITLE 18 OF THE U.S.C.  VIOLATIONS OF THE
INTERNAL SECURITY ACT OF 1950 (64 STAT. 987), VIOLATIONS OF THE ATOMIC
ENERGY ACT OF 1946 (60 STAT. 755), AS AMENDED, VIOLATIONS OF SECTIONS
212(A)(27), (28), (29) OR 241(A)(6), (7) OR 313(A) OF THE IMMIGRATION
AND NATIONALITY ACT (66 STAT. 182-186; 204-206; 240-241), AND
CONSPIRACIES INVOLVING ANY OF THE FOREGOING, IS NECESSARY TO THE PUBLIC
INTEREST, HE, UPON THE APPROVAL OF THE ATTORNEY GENERAL, SHALL MAKE
APPLICATION TO THE COURT THAT THE WITNESS SHALL BE INSTRUCTED TO
TESTIFY OR PRODUCE EVIDENCE SUBJECT TO THE PROVISIONS OF THIS SECTION,
AND UPON ORDER OF THE COURT SUCH WITNESS SHALL NOT BE EXCUSED FROM
TESTIFYING OR FROM PRODUCING BOOKS, PAPERS, OR OTHER EVIDENCE ON THE
GROUND THAT THE TESTIMONY OR EVIDENCE REQUIRED OF HIM MAY TEND TO
INCRIMINATE HIM OR SUBJECT HIM TO A PENALTY OR FORFEITURE.  BUT NO SUCH
WITNESS SHALL BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR FORFEITURE
FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER, OR THING CONCERNING WHICH
HE IS COMPELLED, AFTER HAVING CLAIMED HIS PRIVILEGE AGAINST SELF
INCRIMINATION, TO TESTIFY OR PRODUCE EVIDENCE, NOR SHALL TESTIMONY SO
COMPELLED BE USED AS EVIDENCE IN ANY CRIMINAL PROCEEDING (EXCEPT
PROSECUTION DESCRIBED IN SUBSECTION (D) HEREOF) AGAINST HIM IN ANY
COURT. 

"(D)  NO WITNESS SHALL BE EXEMPT UNDER THE PROVISION OF THIS SECTION
FROM PROSECUTION FOR PERJURY OR CONTEMPT COMMITTED WHILE GIVING
TESTIMONY OR PRODUCING EVIDENCE UNDER COMPULSION AS PROVIDED IN THIS

IN HIS APPLICATION THE UNITED STATES ATTORNEY ALLEGED THE FOLLOWING
FACTS.  ON NOVEMBER 3, 1954, PETITIONER, PURSUANT TO SUBPOENA, APPEARED
BEFORE A DULY CONSTITUTED GRAND JURY OF THE SOUTHERN DISTRICT OF NEW
YORK WHICH WAS INVESTIGATING MATTERS CONCERNED WITH ATTEMPTS TO
ENDANGER THE NATIONAL SECURITY BY ESPIONAGE AND CONSPIRACY TO COMMIT
ESPIONAGE.  THE GRAND JURY ASKED HIM A SERIES OF QUESTIONS RELATING TO
HIS KNOWLEDGE OF SUCH ACTIVITIES, TO HIS AND OTHER PERSONS'
PARTICIPATION IN SUCH ACTIVITIES, AND TO HIS AND OTHER PERSONS'
MEMBERSHIP IN THE COMMUNIST PARTY.  PETITIONER, INVOKING THE PRIVILEGE
AGAINST SELF-INCRIMINATION, REFUSED TO ANSWER THE QUESTIONS.  THE
UNITED STATES ATTORNEY ALSO ASSERTED THAT HE DEEMED THE TESTIMONY
NECESSARY TO THE PUBLIC INTEREST OF THE UNITED STATES, AND ANNEXED A
LETTER FROM THE ATTORNEY GENERAL OF THE UNITED STATES APPROVING THE
APPLICATION.  THE UNITED STATES ATTORNEY, IN COMPLIANCE WITH A REQUEST
OF THE DISTRICT JUDGE, FILED AN AFFIDAVIT ASSERTING HIS OWN GOOD FAITH
IN FILING THE APPLICATION. 

PETITIONER, CONTESTING THE APPLICATION, ATTACKED THE
CONSTITUTIONALITY OF THE ACT AND URGED THAT, IF THE IMMUNITY STATUTE BE
HELD CONSTITUTIONAL, THE DISTRICT COURT SHOULD, IN THE EXERCISE OF ITS
DISCRETION, DENY THE APPLICATION.  HE FILED AN AFFIDAVIT SETTING FORTH
IN DETAIL EXPERIENCES WITH AGENTS OF THE DEPARTMENT OF JUSTICE AND
CONGRESSIONAL INVESTIGATING COMMITTEES AND OTHER INFORMATION IN SUPPORT
OF HIS PLEA FOR AN EXERCISE OF DISCRETION BY THE DISTRICT COURT.  THE
GOVERNMENT IN REPLY FILED AFFIDAVITS DENYING SOME OF THE ALLEGATIONS
SET FORTH IN PETITIONER'S AFFIDAVIT. 

ON JANUARY 31, 1955, THE DISTRICT COURT SUSTAINED THE
CONSTITUTIONALITY OF THE STATUTE.  128 F. SUPP. 617.  ITS ORDER, DATED
FEBRUARY 8, 1955, INSTRUCTED PETITIONER "TO ANSWER THE QUESTIONS
PROPOUNDED TO HIM BEFORE THE GRAND JURY AND TO TESTIFY AND PRODUCE
EVIDENCE WITH RESPECT TO SUCH MATTERS UNDER INQUIRY BEFORE SAID GRAND
JURY  ...  ."  PETITIONER APPEALED FROM THIS ORDER, BUT THE COURT OF
APPEALS FOR THE SECOND CIRCUIT DISMISSED THE APPEAL ON THE AUTHORITY OF
COBBLEDICK V. UNITED STATES, 309 U.S. 323. 

PETITIONER AGAIN REFUSED TO ANSWER THE QUESTIONS WHICH THE DISTRICT
COURT HAD ORDERED HIM TO ANSWER.  HE WAS THEN BROUGHT BEFORE THE
DISTRICT COURT AND, ON STIPULATION THAT HE HAD REFUSED TO OBEY THE
ORDER OF THE COURT OF FEBRUARY 8, HE WAS CONVICTED OF CONTEMPT AND
SENTENCED TO SIX MONTHS' IMPRISONMENT UNLESS HE SHOULD PURGE HIMSELF OF
THE CONTEMPT.  PETITIONER APPEALED TO THE COURT OF APPEALS FOR THE
SECOND CIRCUIT WHICH AFFIRMED THE JUDGMENT OF THE DISTRICT COURT.  221
F.2D 760.  THE IMPORTANCE OF THE QUESTION AT ISSUE, IN VIEW OF THE
DIFFERENCES BETWEEN THE LEGISLATION SUSTAINED IN BROWN V. WALKER, 161
U.S. 591, AND THE ACT UNDER REVIEW, LED US TO BRING THE CASE HERE. 
349 U.S. 951. 

FOUR MAJOR QUESTIONS ARE RAISED BY THIS APPEAL:  IS THE IMMUNITY
PROVIDED BY THE ACT SUFFICIENTLY BROAD TO DISPLACE THE PROTECTION
AFFORDED BY THE PRIVILEGE AGAINST SELF-INCRIMINATION?  ASSUMING THAT
THE STATUTORY REQUIREMENTS ARE MET, DOES THE ACT GIVE THE DISTRICT
JUDGE DISCRETION TO DENY AN APPLICATION FOR AN ORDER REQUIRING A
WITNESS TO ANSWER RELEVANT QUESTIONS PUT BY THE GRAND JURY, AND, IF SO,
IS THE COURT THEREBY REQUIRED TO EXERCISE A FUNCTION THAT IS NOT AN
EXERCISE OF "JUDICIAL POWER"?  DID CONGRESS PROVIDE IMMUNITY FROM STATE
PROSECUTION FOR CRIME, AND, IF SO, IS IT EMPOWERED TO DO SO?  DOES THE
FIFTH AMENDMENT PROHIBIT COMPULSION OF WHAT WOULD OTHERWISE BE SELF
INCRIMINATING TESTIMONY NO MATTER WHAT THE SCOPE OF THE IMMUNITY
STATUTE? 

IT IS RELEVANT TO DEFINE EXPLICITLY THE SPIRIT IN WHICH THE FIFTH
AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION SHOULD BE APPROACHED. 
THIS COMMAND OF THE FIFTH AMENDMENT ("NOR SHALL ANY PERSON  ...  BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF  ...
.") REGISTERS AN IMPORTANT ADVANCE IN THE DEVELOPMENT OF OUR LIBERTY -
"ONE OF THE GREAT LANDMARKS IN MAN'S STRUGGLE TO MAKE HIMSELF
CIVILIZED."  (FN1)  TIME HAS NOT SHOWN THAT PROTECTION FROM THE EVILS
AGAINST WHICH THIS SAFEGUARD WAS DIRECTED IS NEEDLESS OR UNWARRANTED. 
THIS CONSTITUTIONAL PROTECTION MUST NOT BE INTERPRETED IN A HOSTILE OR
NIGGARDLY SPIRIT.  TOO MANY, EVEN THOSE WHO SHOULD BE BETTER ADVISED,
VIEW THIS PRIVILEGE AS A SHELTER FOR WRONGDOERS.  THEY TOO READILY
ASSUME THAT THOSE WHO INVOKE IT ARE EITHER GUILTY OF CRIME OR COMMIT
PERJURY IN CLAIMING THE PRIVILEGE.  (FN2)  SUCH A VIEW DOES SCANT HONOR
TO THE PATRIOTS WHO SPONSORED THE BILL OF RIGHTS AS A CONDITION TO
ACCEPTANCE OF THE CONSTITUTION BY THE RATIFYING STATES.  THE FOUNDERS
OF THE NATION WERE NOT NAIVE OR DISREGARDFUL OF THE INTERESTS OF
JUSTICE.  THE DIFFERENCE BETWEEN THEM AND THOSE WHO DEEM THE PRIVILEGE
AN OBSTRUCTION TO DUE INQUIRY HAS BEEN APPROPRIATELY INDICATED BY CHIEF
JUSTICE MAGRUDER: 

"OUR FOREFATHERS, WHEN THEY WROTE THIS PROVISION INTO THE FIFTH
AMENDMENT OF THE CONSTITUTION, HAD IN MIND A LOT OF HISTORY WHICH HAS
BEEN LARGELY FORGOTTEN TO-DAY.  SEE VIII WIGMORE ON EVIDENCE (3D ED.
1940) SEC. 2250 ET SEQ.; MORGAN, THE PRIVILEGE AGAINST SELF
INCRIMINATION, 34 MINN. L. REV. 1 (1949).  THEY MADE A JUDGMENT AND
EXPRESSED IT IN OUR FUNDAMENTAL LAW, THAT IT WERE BETTER FOR AN
OCCASIONAL CRIME TO GO UNPUNISHED THAN THAT THE PROSECUTION SHOULD BE
FREE TO BUILD UP A CRIMINAL CASE, IN WHOLE OR IN PART, WITH THE
ASSISTANCE OF ENFORCED DISCLOSURES BY THE ACCUSED.  THE PRIVILEGE
AGAINST SELF-INCRIMINATION SERVES AS A PROTECTION TO THE INNOCENT AS
WELL AS TO THE GUILTY, AND WE HAVE BEEN ADMONISHED THAT IT SHOULD BE
GIVEN A LIBERAL APPLICATION.  HOFFMAN V. UNITED STATES,  ...  341 U.S.
479, 486  ...  .  IF IT BE THOUGHT THAT THE PRIVILEGE IS OUTMODED IN
THE CONDITIONS OF THIS MODERN AGE, THEN THE THING TO DO IS TO TAKE IT
OUT OF THE CONSTITUTION, NOT TO WHITTLE IT DOWN BY THE SUBTLE
ENCROACHMENTS OF JUDICIAL OPINION."  MAFFIE V. UNITED STATES, 209 F.2D
225, 227. 

NOTHING NEW CAN BE PUT INTO THE CONSTITUTION EXCEPT THROUGH THE
AMENDATORY PROCESS.  NOTHING OLD CAN BE TAKEN OUT WITHOUT THE SAME
PROCESS. 

NO DOUBT THE CONSTITUTIONAL PRIVILEGE MAY, ON OCCASION, SAVE A GUILTY
MAN FROM HIS JUST DESERTS.  IT WAS AIMED AT A MORE FAR-REACHING EVIL -
A RECURRENCE OF THE INQUISITION AND THE STAR CHAMBER, EVEN IF NOT IN
THEIR STARK BRUTALITY.  PREVENTION OF THE GREATER EVIL WAS DEEMED OF
MORE IMPORTANCE THAN OCCURRENCE OF THE LESSER EVIL.  HAVING HAD MUCH
EXPERIENCE WITH A TENDENCY IN HUMAN NATURE TO ABUSE POWER, THE FOUNDERS
SOUGHT TO CLOSE THE DOORS AGAINST LIKE FUTURE ABUSES BY LAW-ENFORCING
AGENCIES. 

AS NO CONSTITUTIONAL GUARANTEE ENJOYS PREFERENCE, SO NONE SHOULD
SUFFER SUBORDINATION OR DELETION.   IT IS APPROPRIATE TO READ THE
CONVICTION EXPRESSED IN A MEMORABLE ADDRESS BY SENATOR ALBERT J.
BEVERIDGE TO THE AMERICAN BAR ASSOCIATION IN 1920, A TIME WHEN THERE
WAS ALSO MANIFESTED IMPATIENCE WITH SOME OF THE RESTRICTIONS OF THE
CONSTITUTION IN THE PRESUMED INTEREST OF SECURITY.  HIS APPEAL WAS TO
THE CONSTITUTION - TO THE WHOLE CONSTITUTION, NOT TO A MUTILATING
SELECTION OF THOSE PARTS ONLY WHICH FOR THE MOMENT FIND FAVOR.  (FN3)
TO VIEW A PARTICULAR PROVISION OF THE BILL OF RIGHTS WITH DISFAVOR
INEVITABLY RESULTS IN A CONSTRICTED APPLICATION OF IT.  THIS IS TO
DISRESPECT THE CONSTITUTION. 

IT IS IN THIS SPIRIT OF STRICT, NOT LAX, OBSERVANCE OF THE
CONSTITUTIONAL PROTECTION OF THE INDIVIDUAL THAT WE APPROACH THE CLAIMS
MADE BY PETITIONER IN THIS CASE.  THE ATTACK ON THE IMMUNITY ACT AS
VIOLATING THE FIFTH AMENDMENT IS NOT A NEW ONE.  SIXTY YEARS AGO THIS
COURT CONSIDERED, IN BROWN V. WALKER, 161 U.S. 591, THE
CONSTITUTIONALITY OF A SIMILAR ACT, THE ACT OF FEBRUARY 11, 1893, 27
STAT. 443.  (FN4)  IN THAT CASE, BROWN, AUDITOR FOR A RAILROAD COMPANY,
HAD BEEN SUBPOENAED TO TESTIFY BEFORE A GRAND JURY WHICH WAS
INVESTIGATING CHARGES THAT OFFICERS AND AGENTS OF THE COMPANY HAD
VIOLATED THE INTERSTATE COMMERCE ACT.  INVOKING THE PRIVILEGE AGAINST
SELF-INCRIMINATION, HE REFUSED TO ANSWER CERTAIN QUESTIONS CONCERNING
THE OPERATIONS AND THE REBATE POLICY OF THE RAILROAD.   ON AN ORDER TO
SHOW CAUSE BEFORE THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA, HE WAS ADJUDGED IN CONTEMPT.  HIS PETITION
FOR A WRIT OF HABEAS CORPUS TO THE CIRCUIT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA WAS DISMISSED.  PETITIONER APPEALED TO THIS
COURT, URGING THAT THE 1893 IMMUNITY STATUTE WAS UNCONSTITUTIONAL. 

THE COURT CONSIDERED AND REJECTED PETITIONER'S ARGUMENTS, HOLDING
THAT A STATUTE WHICH COMPELLED TESTIMONY BUT SECURED THE WITNESS
AGAINST A CRIMINAL PROSECUTION WHICH MIGHT BE AIDED DIRECTLY OR
INDIRECTLY BY HIS DISCLOSURES DID NOT VIOLATE THE FIFTH AMENDMENT'S
PRIVILEGE AGAINST SELF-INCRIMINATION AND THAT THE 1893 STATUTE DID
PROVIDE SUCH IMMUNITY.  "WHILE THE CONSTITUTIONAL PROVISION IN QUESTION
IS JUSTLY REGARDED AS ONE OF THE MOST VALUABLE PREROGATIVES OF THE
CITIZEN, ITS OBJECT IS FULLY ACCOMPLISHED BY THE STATUTORY IMMUNITY,
AND WE ARE, THEREFORE, OF OPINION THAT THE WITNESS WAS COMPELLABLE TO
ANSWER  ...  ."  161 U.S., AT 610.  (FN5) 

PETITIONER, HOWEVER, ATTEMPTS TO DISTINGUISH BROWN V. WALKER.  HE
ARGUES THAT THIS CASE IS DIFFERENT FROM BROWN V. WALKER BECAUSE THE
IMPACT OF THE DISABILITIES IMPOSED BY FEDERAL AND STATE AUTHORITIES AND
THE PUBLIC IN GENERAL - SUCH AS LOSS OF JOB, EXPULSION FROM LABOR
UNIONS, STATE REGISTRATION AND INVESTIGATION STATUTES, PASSPORT
ELIGIBILITY, AND GENERAL PUBLIC OPPROBRIUM - IS SO OPPRESSIVE THAT THE
STATUTE DOES NOT GIVE HIM TRUE IMMUNITY.  THIS, HE ALLEGES, IS
SIGNIFICANTLY DIFFERENT FROM THE IMPACT OF TESTIFYING ON THE AUDITOR IN
BROWN V. WALKER, WHO COULD THE NEXT DAY RESUME HIS JOB WITH REPUTATION
UNAFFECTED.  (FN6)  BUT, AS THIS COURT HAS OFTEN HELD, THE IMMUNITY
GRANTED NEED ONLY REMOVE THOSE SANCTIONS WHICH GENERATE THE FEAR
JUSTIFYING INVOCATION OF THE PRIVILEGE:  "THE INTERDICTION OF THE FIFTH
AMENDMENT OPERATES ONLY WHERE A WITNESS IS ASKED TO INCRIMINATE HIMSELF
- IN OTHER WORDS, TO GIVE TESTIMONY WHICH MAY POSSIBLY EXPOSE HIM TO A
CRIMINAL CHARGE.  BUT IF THE CRIMINALITY HAS ALREADY BEEN TAKEN AWAY,
THE AMENDMENT CEASES TO APPLY."  HALE V. HENKEL, 201 U.S. 43, 67. 
HERE, SINCE THE IMMUNITY ACT PROTECTS A WITNESS WHO IS COMPELLED TO
ANSWER TO THE EXTENT OF HIS CONSTITUTIONAL IMMUNITY, HE HAS OF COURSE,
WHEN A PARTICULAR SANCTION IS SOUGHT TO BE IMPOSED AGAINST HIM, THE
RIGHT TO CLAIM THAT IT IS CRIMINAL IN NATURE. 

AGAIN, THE PETITIONER SEEKS TO DISTINGUISH THIS CASE FROM BROWN V.
WALKER BY CLAIMING THAT UNDER THE IMMUNITY ACT OF 1954 THE DISTRICT
JUDGE TO WHOM THE UNITED STATES ATTORNEY MUST APPLY FOR AN ORDER
INSTRUCTING HIM TO TESTIFY HAS DISCRETION IN GRANTING THE ORDER AND
THUS HAS DISCRETION IN GRANTING THE IMMUNITY WHICH AUTOMATICALLY
FOLLOWS FROM THE ORDER.  PETITIONER CITES THE LANGUAGE OF THE STATUTE,
THE LEGISLATIVE HISTORY, AND MISCELLANEOUS OTHER AUTHORITIES IN SUPPORT
OF HIS CONSTRUCTION.  THE GOVERNMENT CONTENDS THAT THE COURT HAS NO
DISCRETION TO DETERMINE WHETHER THE PUBLIC INTEREST WOULD BEST BE
SERVED BY EXCHANGING IMMUNITY FROM PROSECUTION FOR TESTIMONY, THAT ITS
ONLY FUNCTION IS TO ORDER A WITNESS TO TESTIFY IF IT DETERMINES THAT
THE CASE IS WITHIN THE FRAMEWORK OF THE STATUTE.    WE ARE CONCERNED
HERE ONLY WITH SEC. (C) AND THEREFORE NEED NOT PASS ON THIS QUESTION
WITH RESPECT TO SECS. (A) AND (B) OF THE ACT.  (FN7)  A FAIR READING OF
SEC. (C) DOES NOT INDICATE THAT THE DISTRICT JUDGE HAS ANY DISCRETION
TO DENY THE ORDER ON THE GROUND THAT THE PUBLIC INTEREST DOES NOT
WARRANT IT.  WE AGREE WITH DISTRICT JUDGE WEINFELD'S INTERPRETATION OF
THIS SECTION:  (FN8) 

"THE MOST THAT CAN BE SAID FOR THE LEGISLATIVE HISTORY IS THAT IT IS
ON THE WHOLE INCONCLUSIVE.  CERTAINLY, IT CONTAINS NOTHING THAT
REQUIRES THE COURT TO REJECT THE CONSTRUCTION WHICH THE STATUTORY
LANGUAGE CLEARLY REQUIRES.  ESPECIALLY IS THIS SO WHERE THE
CONSTRUCTION CONTENDED FOR PURPORTS TO RAISE A SERIOUS CONSTITUTIONAL
QUESTION AS TO THE ROLE OF THE JUDICIARY UNDER THE DOCTRINE OF
SEPARATION OF POWERS.  THE SUPREME COURT HAS REPEATEDLY WARNED '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.'  (FN9) INDEED, THE COURT HAS STATED THAT WORDS MAY BE
STRAINED 'IN THE CANDID SERVICE OF AVOIDING A SERIOUS CONSTITUTIONAL
DOUBT.'  (FN10)  HERE THERE IS NO NEED TO STRAIN WORDS.  IT REQUIRES
NEITHER TORTURING OF LANGUAGE NOR DISREGARD OF A CLEAR LEGISLATIVE
POLICY (FN11) TO AVOID THE CONSTITUTIONAL QUESTIONS ADVANCED BY THE
WITNESS.  INDEED, TO REACH THE CONSTITUTIONAL ISSUE WOULD REQUIRE
STRAINING OF LANGUAGE.  IN SUCH CIRCUMSTANCES THE COURT'S DUTY IS
PLAINLY TO AVOID THE CONSTITUTIONAL QUESTION."  128 F. SUPP., AT 627
628. 

SINCE THE COURT'S DUTY UNDER SEC. (C) IS ONLY TO ASCERTAIN WHETHER
THE STATUTORY REQUIREMENTS ARE COMPLIED WITH BY THE GRAND JURY, THE
UNITED STATES ATTORNEY, AND THE ATTORNEY GENERAL, WE HAVE NO DIFFICULTY
IN CONCLUDING THAT THE DISTRICT COURT IS CONFINED WITHIN THE SCOPE OF
"JUDICIAL POWER."  INTERSTATE COMMERCE COMMISSION V. BRIMSON, 154 U.S.
447. 

PETITIONER FURTHER ARGUES THAT THE IMMUNITY IS NOT CONSTITUTIONALLY
SUFFICIENT SO LONG AS A WITNESS IS SUBJECT TO THE VERY REAL POSSIBILITY
OF STATE PROSECUTION.  HE URGES THAT THE STATUTE DOES NOT, AND
CONSTITUTIONALLY COULD NOT, GRANT SUCH IMMUNITY.  THE IMMUNITY PORTION
OF THE STATUTE CONTAINS TWO PARTS.  THE FIRST PROHIBITS PROSECUTIONS
AND IS WORDED VIRTUALLY IN THE TERMS OF THE 1893 ACT.  THE SECOND MAKES
EXPLICIT THAT THE COMPELLED TESTIMONY SHALL NOT BE USED AGAINST THE
WITNESS IN ANY PROCEEDING IN ANY COURT.  SUCH A CLAUSE WAS CONSTRUED IN
ADAMS V. MARYLAND, 347 U.S. 179, TO APPLY TO STATE COURTS.  IN BROWN V.
WALKER, IT WAS URGED THAT THE PROHIBITION AGAINST PROSECUTION DID NOT
GRANT PROTECTION AGAINST PROSECUTION IN THE STATE COURTS.  FIRST
FINDING THAT CONGRESS COULD CONSTITUTIONALLY PROVIDE SUCH IMMUNITY, THE
COURT THEN INTERPRETED THE STATUTE: 

"THE ACT IN QUESTION CONTAINS NO SUGGESTION THAT IT IS TO BE APPLIED
ONLY TO FEDERAL COURTS.  IT DECLARES BROADLY THAT 'NO PERSON SHALL BE
EXCUSED FROM ATTENDING AND TESTIFYING  ...  BEFORE THE INTERSTATE
COMMERCE COMMISSION  ...  ON THE GROUND  ...  THAT THE TESTIMONY  ...
REQUIRED OF HIM MAY TEND TO CRIMINATE HIM,' ETC.  'BUT NO PERSON SHALL
BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR FORFEITURE FOR OR ON
ACCOUNT OF ANY TRANSACTION, MATTER OR THING CONCERNING WHICH HE MAY
TESTIFY,' ETC.  IT IS NOT THAT HE SHALL NOT BE PROSECUTED FOR OR ON
ACCOUNT OF ANY CRIME CONCERNING WHICH HE MAY TESTIFY, WHICH MIGHT
POSSIBLY BE URGED TO APPLY ONLY TO CRIMES UNDER THE FEDERAL LAW AND NOT
TO CRIMES, SUCH AS THE PASSING OF COUNTERFEIT MONEY, ETC., WHICH ARE
ALSO COGNIZABLE UNDER STATE LAWS; BUT THE IMMUNITY EXTENDS TO ANY
TRANSACTION, MATTER OR THING CONCERNING WHICH HE MAY TESTIFY, WHICH
CLEARLY INDICATES THAT THE IMMUNITY IS INTENDED TO BE GENERAL, AND TO
BE APPLICABLE WHENEVER AND IN WHATEVER COURT SUCH PROSECUTION MAY BE
HAD."  161 U.S., AT 607-608. 

THE REPORT OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES SUPPORTS THE BROAD INTERPRETATION OF THE ACT BEFORE
US: 

"EVEN THOUGH THE POWER OF CONGRESS TO PROHIBIT A SUBSEQUENT STATE
PROSECUTION IS DOUBTFUL, SUCH A CONSTITUTIONAL QUESTION SHOULD NOT
PREVENT THE ENACTMENT OF THE RECOMMENDED BILL.  THE LANGUAGE OF THE
AMENDMENT  ...  IS SUFFICIENTLY BROAD TO BAN A SUBSEQUENT STATE
PROSECUTION IF IT BE DETERMINED THAT THE CONGRESS HAS THE
CONSTITUTIONAL POWER TO DO SO.  IN ADDITION, THE AMENDMENT RECOMMENDED
PROVIDES THE ADDITIONAL PROTECTION - AS SET FORTH IN THE ADAMS CASE, BY
OUTLAWING THE SUBSEQUENT USE OF THE COMPELLED TESTIMONY IN ANY CRIMINAL
PROCEEDING - STATE OR FEDERAL. 

"BY THE USE OF THESE TWO DISTINCT CONCEPTS, THE COMMITTEE BELIEVES
THAT THE FULLEST PROTECTION THAT CAN BE AFFORDED THE WITNESS WILL BE
ACHIEVED."  H.R. REP. NO. 2606, 83D CONG., 2D SESS. 7. 

PETITIONER QUESTIONS THE CONSTITUTIONAL POWER OF CONGRESS TO GRANT
IMMUNITY FROM STATE PROSECUTION.  CONGRESSIONAL ABOLITION OF STATE
POWER TO PUNISH CRIMES COMMITTED IN VIOLATION OF STATE LAW PRESENTS A
MORE DRASTIC EXERCISE OF CONGRESSIONAL POWER THAN THAT WHICH WE
CONSIDERED IN ADAMS.  IN THAT CASE, ONLY THE USE OF THE COMPELLED
TESTIMONY, NOT PROSECUTION ITSELF, WAS PROHIBITED.  HERE THE STATE IS
FORBIDDEN TO PROSECUTE.  BUT IT CANNOT BE CONTESTED THAT CONGRESS HAS
POWER TO PROVIDE FOR NATIONAL DEFENSE AND THE COMPLEMENTARY POWER "TO
MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO
EXECUTION THE FOREGOING POWERS, AND ALL OTHER POWERS VESTED BY THIS
CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES, OR IN ANY
DEPARTMENT OR OFFICER THEREOF."  U.S. CONST. ART. I, SEC. 8, CL. 18. 
THE IMMUNITY ACT IS CONCERNED WITH THE NATIONAL SECURITY.  IT REFLECTS
A CONGRESSIONAL POLICY TO INCREASE THE POSSIBILITY OF MORE COMPLETE AND
OPEN DISCLOSURE BY REMOVAL OF FEAR OF STATE PROSECUTION.  WE CANNOT SAY
THAT CONGRESS' PARAMOUNT AUTHORITY IN SAFEGUARDING NATIONAL SECURITY
DOES NOT JUSTIFY THE RESTRICTION IT HAS PLACED ON THE EXERCISE OF STATE
POWER FOR THE MORE EFFECTIVE EXERCISE OF CONCEDED FEDERAL POWER.  WE
HAVE ALREADY, IN THE NAME OF THE COMMERCE CLAUSE, UPHELD A SIMILAR
RESTRICTION ON STATE COURT JURISDICTION, BROWN V. WALKER, 161 U.S., AT
606-607, AND WE CAN FIND NO DISTINCTION BETWEEN THE REACH OF
CONGRESSIONAL POWER WITH RESPECT TO COMMERCE AND ITS POWER WITH RESPECT
TO NATIONAL SECURITY.  SEE ALSO HINES V. DAVIDOWITZ, 312 U.S. 52. 
(FN12) 

PETITIONER ALSO URGES THAT IF BROWN V. WALKER IS FOUND
NONDISTINGUISHABLE AND CONTROLLING, THEN THAT CASE SHOULD BE
RECONSIDERED AND OVERRULED.  HE ALSO URGES UPON US A "RETURN" TO A
LITERAL READING OF THE FIFTH AMENDMENT.  BROWN V. WALKER WAS THE SECOND
CASE TO DEAL WITH AN IMMUNITY STATUTE.  FOUR YEARS PREVIOUSLY, IN
COUNSELMAN V. HITCHCOCK, 142 U.S. 547, A UNANIMOUS COURT HAD FOUND
CONSTITUTIONALLY INADEQUATE THE PREDECESSOR TO THE 1893 STATUTE BECAUSE
THE IMMUNITY GRANTED WAS INCOMPLETE, IN THAT IT MERELY FORBADE THE USE
OF THE TESTIMONY GIVEN AND FAILED TO PROTECT A WITNESS FROM FUTURE
PROSECUTION BASED ON KNOWLEDGE AND SOURCES OF INFORMATION OBTAINED FROM
THE COMPELLED TESTIMONY.  IT WAS WITH THIS BACKGROUND THAT THE 1893
STATUTE, PROVIDING COMPLETE IMMUNITY FROM PROSECUTION, WAS PASSED AND
THAT BROWN V. WALKER WAS ARGUED AND DECIDED.  AS IN COUNSELMAN,
APPELLANT'S NUMEROUS ARGUMENTS WERE PRESENTED BY JAMES C. CARTER,
WIDELY ACKNOWLEDGED AS THE LEADER OF THE AMERICAN BAR.  (FN13)  THE
COURT WAS CLOSELY DIVIDED IN UPHOLDING THE STATUTE, AND THE OPINIONS
REFLECT THE THOROUGHNESS WITH WHICH THE ISSUES WERE CONSIDERED.  SINCE
THAT TIME THE COURT'S HOLDING IN BROWN V. WALKER HAS NEVER BEEN
CHALLENGED; THE CASE AND THE DOCTRINE IT ANNOUNCED HAVE CONSISTENTLY
AND WITHOUT QUESTION BEEN TREATED AS DEFINITIVE BY THIS COURT, IN
OPINIONS WRITTEN, AMONG OTHERS, BY HOLMES AND BRANDEIS, JJ.  SEE, E.G.,
MCCARTHY V. ARNDSTEIN, 266 U.S. 34, 42; HEIKE V. UNITED STATES, 227
U.S. 131, 142.  THE 1893 STATUTE HAS BECOME PART OF OUR CONSTITUTIONAL
FABRIC AND HAS BEEN INCLUDED "IN SUBSTANTIALLY THE SAME TERMS, IN
VIRTUALLY ALL OF THE MAJOR REGULATORY ENACTMENTS OF THE FEDERAL
GOVERNMENT."  SHAPIRO V. UNITED STATES, 335 U.S. 1, 6.   FOR A PARTIAL
LIST OF THESE STATUTES, SEE, ID., AT 6-7, N. 4.  MOREOVER, THE STATES,
WITH ONE EXCEPTION - A CASE DECIDED PRIOR TO BROWN V. WALKER - HAVE,
UNDER THEIR OWN CONSTITUTIONS, ENUNCIATED THE SAME DOCTRINE, 8 WIGMORE,
EVIDENCE (3D ED.), SEC. 2281, AND HAVE PASSED NUMEROUS STATUTES
COMPELLING TESTIMONY IN EXCHANGE FOR IMMUNITY IN THE FORM EITHER OF
COMPLETE AMNESTY OR OF PROHIBITION OF THE USE OF THE COMPELLED
TESTIMONY.  FOR A LIST OF SUCH STATUTES, SEE 8 WIGMORE, EVIDENCE (3D
ED.), SEC. 2281, N. 11 (PP. 478-501) AND POCKET SUPPLEMENT THERETO,
SEC. 2281, N. 11 (PP. 147-157). 

WE ARE NOT DEALING HERE WITH ONE OF THE VAGUE, UNDEFINABLE,
ADMONITORY PROVISIONS OF THE CONSTITUTION WHOSE SCOPE IS INEVITABLY
ADDRESSED TO CHANGING CIRCUMSTANCES.  THE PRIVILEGE AGAINST SELF
INCRIMINATION IS A SPECIFIC PROVISION OF WHICH IT IS PECULIARLY TRUE
THAT "A PAGE OF HISTORY IS WORTH A VOLUME OF LOGIC."  NEW YORK TRUST
CO. V. EISNER, 256 U.S. 345, 349.  FOR THE HISTORY OF THE PRIVILEGE
ESTABLISHES NOT ONLY THAT IT IS NOT TO BE INTERPRETED LITERALLY, (FN14)
BUT ALSO THAT ITS SOLE CONCERN IS, AS ITS NAME INDICATES, WITH THE
DANGER TO A WITNESS FORCED TO GIVE TESTIMONY LEADING TO THE INFLICTION
OF "PENALTIES AFFIXED TO THE CRIMINAL ACTS  ...  ."  BOYD V. UNITED
STATES, 116 U.S. 616, 634.  WE LEAVE BOYD V. UNITED STATES UNQUALIFIED,
AS IT WAS LEFT UNQUALIFIED IN BROWN V. WALKER.  IMMUNITY DISPLACES THE
DANGER.  ONCE THE REASON FOR THE PRIVILEGE CEASES, THE PRIVILEGE
CEASES.  WE REAFFIRM BROWN V. WALKER, AND IN SO DOING WE NEED NOT
REPEAT THE ANSWERS GIVEN BY THAT CASE TO THE OTHER POINTS RAISED BY
PETITIONER.  (FN15) 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  GRISWOLD, THE FIFTH AMENDMENT TODAY (1955), 7. 

FN2  FATHER JOHN FEARON, O.P., HAS ADDRESSED HIMSELF TO THIS
MISAPPREHENSION:  "WHAT IS TO BE SAID OF THE OPINION THAT AN INNOCENT
MAN HAS AN OBLIGATION IN CONSCIENCE NOT TO HAVE RECOURSE TO THE FIFTH
AMENDMENT?  SINCE THE NATURAL LAW DOES NOT PROVIDE EXPLICITLY FOR THIS
CIRCUMSTANCE MORAL OBLIGATION HAS TO BE DETERMINED BY CIVIL LAW. 
ACTUALLY THE DETERMINATION OF CIVIL LAW IS QUITE CLEAR:  THE INNOCENT
AND GUILTY ALIKE HAVE A RIGHT OF RECOURSE TO THE FIFTH AMENDMENT.  AND
IF THE INNOCENT MAN HAS A CLEARLY DEFINED RIGHT TO SUCH RECOURSE IT IS
INCONCEIVABLE THAT HE COULD SIMULTANEOUSLY HAVE A DUTY NOT TO HAVE
RECOURSE, SINCE RIGHTS AND DUTIES ARE CORRELATIVE.  NOR CAN IT BE URGED
THAT NON-RECOURSE IS A DUTY OF PIETY RATHER THAN JUSTICE.  IF SUCH AN
OPINION WERE BINDING AND ALL INNOCENT MEN WAIVED THEIR RIGHTS TO THE
PROTECTION OF THE FIFTH AMENDMENT, THE PURPOSE OF THE LAW WOULD BE
DEFEATED AND THE COMMON WELFARE OF THE NATION WOULD SUFFER RATHER THAN
PROSPER."  CONGRESSIONAL INVESTIGATIONS AND MORAL THEOLOGY, THE
COMMONWEAL, FEB. 19, 1954, 497, 499. 

FN3  "IF LIBERTY IS WORTH KEEPING AND FREE REPRESENTATIVE GOVERNMENT
WORTH SAVING, WE MUST STAND FOR ALL AMERICAN FUNDAMENTALS - NOT SOME,
BUT ALL.  ALL ARE WOVEN INTO THE GREAT FABRIC OF OUR NATIONAL WELL
BEING.  WE CANNOT HOLD FAST TO SOME ONLY, AND ABANDON OTHERS THAT, FOR
THE MOMENT, WE FIND INCONVENIENT.  IF ONE AMERICAN FUNDAMENTAL IS
PROSTRATED, OTHERS IN THE END WILL SURELY FALL.  THE SUCCESS OR FAILURE
OF THE AMERICAN THEORY OF SOCIETY AND GOVERNMENT, DEPENDS UPON OUR
FIDELITY TO EVERY ONE OF THOSE INTER-DEPENDENT PARTS OF THAT IMMORTAL
CHARTER OF ORDERLY FREEDOM, THE CONSTITUTION OF THE UNITED STATES." 
BEVERIDGE, THE ASSAULT UPON AMERICAN FUNDAMENTALS, 45 REPORTS OF
AMERICAN BAR ASSN., 188, 216 (1920). 

FN4  "  ...  NO PERSON SHALL BE EXCUSED FROM ATTENDING AND TESTIFYING
OR FROM PRODUCING BOOKS, PAPERS, TARIFFS, CONTRACTS, AGREEMENTS AND
DOCUMENTS BEFORE THE INTERSTATE COMMERCE COMMISSION, OR IN OBEDIENCE TO
THE SUBPOENA OF THE COMMISSION  ...  OR IN ANY CAUSE OR PROCEEDING,
CRIMINAL OR OTHERWISE, BASED UPON OR GROWING OUT OF ANY ALLEGED
VIOLATION OF THE ACT OF CONGRESS, ENTITLED, 'AN ACT TO REGULATE
COMMERCE,'  ...  ON THE GROUND OR FOR THE REASON THAT THE TESTIMONY OR
EVIDENCE, DOCUMENTARY OR OTHERWISE, REQUIRED OF HIM, MAY TEND TO
CRIMINATE HIM OR SUBJECT HIM TO A PENALTY OR FORFEITURE.  BUT NO PERSON
SHALL BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR FORFEITURE FOR OR ON
ACCOUNT OF ANY TRANSACTION, MATTER OR THING, CONCERNING WHICH HE MAY
TESTIFY, OR PRODUCE EVIDENCE, DOCUMENTARY OR OTHERWISE, BEFORE SAID
COMMISSION, OR IN OBEDIENCE TO ITS SUBPOENA ...  OR IN ANY SUCH CASE OR
PROCEEDING:  PROVIDED, THAT NO PERSON SO TESTIFYING SHALL BE EXEMPT
FROM PROSECUTION AND PUNISHMENT FOR PERJURY COMMITTED IN SO
TESTIFYING." 

FN5  SHIRAS, J., JOINED BY GRAY AND WHITE, JJ., AND FIELD, J.,
DISSENTED. 

FN6  IT IS TRUE THAT THE COURT IN BROWN V. WALKER STATED:  "  ...  IT
IS ENTIRELY CLEAR THAT HE WAS NOT THE CHIEF OR EVEN A SUBSTANTIAL
OFFENDER AGAINST THE LAW, AND THAT HIS PRIVILEGE WAS CLAIMED FOR THE
PURPOSE OF SHIELDING THE RAILWAY OR ITS OFFICERS FROM ANSWERING A
CHARGE OF HAVING VIOLATED ITS PROVISIONS.  TO SAY THAT, NOTWITHSTANDING
HIS IMMUNITY FROM PUNISHMENT, HE WOULD INCUR PERSONAL ODIUM AND
DISGRACE FROM ANSWERING THESE QUESTIONS, SEEMS TOO MUCH LIKE AN ABUSE
OF LANGUAGE TO BE WORTHY OF SERIOUS CONSIDERATION."  161 U.S., AT 609
610.  THE COURT, HOWEVER, CONCLUDED:  "BUT, EVEN IF THIS WERE TRUE,
UNDER THE AUTHORITIES ABOVE CITED, HE WOULD STILL BE COMPELLED TO
ANSWER, IF THE FACTS SOUGHT TO BE ELUCIDATED WERE MATERIAL TO THE
ISSUE."  ID., AT 610.  FOR A FULLER EXPOSITION, SEE ID., AT 605-606. 
FN7  "(A)  IN THE COURSE OF ANY INVESTIGATION RELATING TO ANY
INTERFERENCE WITH OR ENDANGERING OF, OR ANY PLANS OR ATTEMPTS TO
INTERFERE WITH OR ENDANGER THE NATIONAL SECURITY OR DEFENSE OF THE
UNITED STATES BY TREASON, SABOTAGE, ESPIONAGE, SEDITION, SEDITIOUS
CONSPIRACY OR THE OVERTHROW OF ITS GOVERNMENT BY FORCE OR VIOLENCE, NO
WITNESS SHALL BE EXCUSED FROM TESTIFYING OR FROM PRODUCING BOOKS,
PAPERS, OR OTHER EVIDENCE BEFORE EITHER HOUSE, OR BEFORE ANY COMMITTEE
OF EITHER HOUSE, OR BEFORE ANY JOINT COMMITTEE OF THE TWO HOUSES OF
CONGRESS ON THE GROUND THAT THE TESTIMONY OR EVIDENCE REQUIRED OF HIM
MAY TEND TO INCRIMINATE HIM OR SUBJECT HIM TO A PENALTY OR FORFEITURE,
WHEN THE RECORD SHOWS THAT: 

"(1)  IN THE CASE OF PROCEEDINGS BEFORE ONE OF THE HOUSES OF
CONGRESS, THAT A MAJORITY OF THE MEMBERS PRESENT OF THAT HOUSE; OR: 

"(2)  IN THE CASE OF PROCEEDINGS BEFORE A COMMITTEE, THAT TWO-THIRDS
OF THE MEMBERS OF THE FULL COMMITTEE SHALL BY AFFIRMATIVE VOTE HAVE
AUTHORIZED SUCH WITNESSES TO BE GRANTED IMMUNITY UNDER THIS SECTION
WITH RESPECT TO THE TRANSACTIONS, MATTERS, OR THINGS CONCERNING WHICH
HE IS COMPELLED, AFTER HAVING CLAIMED HIS PRIVILEGE AGAINST SELF
INCRIMINATION TO TESTIFY OR PRODUCE EVIDENCE BY DIRECTION OF THE
PRESIDING OFFICER AND: 

"THAT AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
WHEREIN THE INQUIRY IS BEING CARRIED ON HAS BEEN ENTERED INTO THE
RECORD REQUIRING SAID PERSON TO TESTIFY OR PRODUCE EVIDENCE.  SUCH AN
ORDER MAY BE ISSUED BY A UNITED STATES DISTRICT COURT JUDGE UPON
APPLICATION BY A DULY AUTHORIZED REPRESENTATIVE OF THE CONGRESS OR OF
THE COMMITTEE CONCERNED.  BUT NO SUCH WITNESS SHALL BE PROSECUTED OR
SUBJECTED TO ANY PENALTY OR FORFEITURE FOR OR ON ACCOUNT OF ANY
TRANSACTION, MATTER, OR THING CONCERNING WHICH HE IS SO COMPELLED,
AFTER HAVING CLAIMED HIS PRIVILEGE AGAINST SELF-INCRIMINATION, TO
TESTIFY OR PRODUCE EVIDENCE, NOR SHALL TESTIMONY SO COMPELLED BE USED
AS EVIDENCE IN ANY CRIMINAL PROCEEDING (EXCEPT PROSECUTIONS DESCRIBED
IN SUBSECTION (D) HEREOF) AGAINST HIM IN ANY COURT. 

"(B)  NEITHER HOUSE NOR ANY COMMITTEE THEREOF NOR ANY JOINT COMMITTEE
OF THE TWO HOUSES OF CONGRESS SHALL GRANT IMMUNITY TO ANY WITNESS
WITHOUT FIRST HAVING NOTIFIED THE ATTORNEY GENERAL OF THE UNITED STATES
OF SUCH ACTION AND THEREAFTER HAVING SECURED THE APPROVAL OF THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT WHEREIN SUCH INQUIRY IS BEING
HELD.  THE ATTORNEY GENERAL OF THE UNITED STATES SHALL BE NOTIFIED OF
THE TIME OF EACH PROPOSED APPLICATION TO THE UNITED STATES DISTRICT
COURT AND SHALL BE GIVEN THE OPPORTUNITY TO BE HEARD WITH RESPECT
THERETO PRIOR TO THE ENTRANCE INTO THE RECORD OF THE ORDER OF THE
DISTRICT COURT." 

FN8  THE FOOTNOTES IN THE DISTRICT JUDGE'S OPINION HAVE BEEN
RENUMBERED. 

FN9  "CROWELL V. BENSON, 285 U.S. 22, 62  ...  UNITED STATES V.
RUMELY, 345 U.S. 41, 45  ... UNITED STATES V. C.I.O., 335 U.S. 106  ...
BRANDEIS, J. CONCURRING IN ASHWANDER V. T.V.A., 297 U.S. 288, 341, 348
...  AND CASES CITED." 

FN10  "UNITED STATES V. RUMELY, 345 U.S. 41, 47  ...  ." 

FN11  "CF. SHAPIRO V. UNITED STATES, 335 U.S. 1, 31  ... ." 

FN12  WE NEED NOT CONSIDER AT THIS TIME PETITIONER'S CLAIM THAT
IMMUNITY IS NOT COMPLETE AND THE STATUTE UNCONSTITUTIONAL BECAUSE HE
CAN BE PROSECUTED LATER FOR PARTICIPATION IN A CONTINUING CONSPIRACY. 
CONGRESS HAS THE POWER TO PROVIDE, AND HAS PROVIDED, THAT IMMUNITY FROM
PROSECUTION WHICH THE CONSTITUTION REQUIRES.  SEE HEIKE V. UNITED
STATES, 227 U.S. 131, 142. 

FN13  HE URGED THAT THE STATUTE LEFT THE WITNESS IN A WORSE CONDITION
BECAUSE IT DID NOT ABROGATE THE CRIME FOR WHICH HE WAS GIVEN IMMUNITY;
THAT THE CONSTITUTIONAL SAFEGUARD GOES TOWARD RELIEVING THE WITNESS
FROM THE DANGER OF AN ACCUSATION BEING MADE AGAINST HIM WHILE THE
STATUTORY IMMUNITY FORCES HIM TO SUPPLY EVIDENCE LEADING TO AN
ACCUSATION AND PROVIDES ONLY A MEANS FOR DEFENSE; THAT THE STATUTE PUTS
A HEAVY BURDEN ON PETITIONER, IF HE IS INDICTED, TO PROVE THAT HE HAD
TESTIFIED CONCERNING THE MATTER FOR WHICH HE WAS INDICTED; THAT A
CITIZEN IS ENTITLED TO THE VERY THING SECURED TO HIM BY THE
CONSTITUTIONAL SAFEGUARDS AND NOT SOMETHING WHICH WILL PROBABLY ANSWER
THE SAME PURPOSE; THAT THE STATUTE SUBJECTS HIM TO THE INFAMY AND
DISGRACE FROM WHICH HE WAS PROTECTED BY THE CONSTITUTIONAL SAFEGUARD;
THAT THE STATUTE DID NOT PROTECT HIM FROM PROSECUTION FOR A STATE
CRIME; THAT EVEN IF IT WERE SO INTERPRETED, CONGRESS HAD NO POWER TO
GRANT SUCH PROTECTION; THAT THE IMMUNITY GRANTED WAS TOO NARROW SINCE
IT ONLY EXTENDED TO MATTERS CONCERNING WHICH HE WAS CALLED TO TESTIFY
AND NOT TO ALL MATTERS RELATED TO THE TESTIMONY GIVEN; THAT TO BE ABLE
TO CLAIM THE PRIVILEGE THE WITNESS WOULD VIRTUALLY HAVE TO REVEAL HIS
CRIME IN ORDER THAT THE COURT COULD SEE THAT THE STATUTE FAILED TO
PROTECT HIM; AND FINALLY THAT THE STATUTE WAS AN ATTEMPT TO EXERCISE
THE POWER OF PARDON WHICH WAS A POWER NOT DELEGATED TO CONGRESS. 

FN14  "  ...  THE PROVISIONS OF THE CONSTITUTION ARE NOT MATHEMATICAL
FORMULAS HAVING THEIR ESSENCE IN THEIR FORM; THEY ARE ORGANIC LIVING
INSTITUTIONS TRANSPLANTED FROM ENGLISH SOIL.  THEIR SIGNIFICANCE IS
VITAL NOT FORMAL; IT IS TO BE GATHERED NOT SIMPLY BY TAKING THE WORDS
AND A DICTIONARY, BUT BY CONSIDERING THEIR ORIGIN AND THE LINE OF THEIR
GROWTH."  GOMPERS V. UNITED STATES, 233 U.S. 604, 610. 

FN15  WE DO NOT DISCUSS PETITIONER'S ARGUMENT, RELYING ON THE FIRST
AMENDMENT, THAT INQUIRY INTO HIS POLITICAL MEMBERSHIP AND ASSOCIATIONS
IS UNCONSTITUTIONAL.  PETITIONER CONTENDS THAT SOME OF THE QUESTIONS
WHICH HE WAS ASKED ARE OBJECTIONABLE BECAUSE THEY REQUIRE TESTIMONY
THAT IS PROTECTED BY THE IMPLICATIONS OF THE FIRST AMENDMENT.  BUT IT
IS EVERY MAN'S DUTY TO GIVE TESTIMONY BEFORE A DULY CONSTITUTED
TRIBUNAL UNLESS HE INVOKES SOME VALID LEGAL EXEMPTION IN WITHHOLDING
IT.  ALTHOUGH PETITIONER MADE THE FIRST AMENDMENT ARGUMENT WHEN THE
UNITED STATES ATTORNEY APPLIED, UNDER THE IMMUNITY ACT, FOR AN ORDER
REQUIRING HIM TO TESTIFY, WHEN HE WAS CITED FOR CONTEMPT HE URGED ONLY,
"ALL OF THE GROUNDS WE URGED BEFORE JUDGE WEINFELD IN OPPOSITION TO THE
STATUTE, IN SUPPORT OF OUR CONTENTION THAT THE STATUTE WAS
UNCONSTITUTIONAL.  WE WILL REST ON THAT AND PROCEED ON THAT BASIS IN
THE APPELLATE COURTS."  PETITIONER DID NOT MAKE ANY OBJECTION TO THE
QUESTIONS OTHER THAN THE ASSERTION OF THE UNCONSTITUTIONALITY OF THE
IMMUNITY ACT.  IT SHOULD ALSO BE NOTED THAT WHEN PETITIONER - WHO, THE
RECORD SHOWS, WAS AN EXPERIENCED WITNESS, HAD BEEN ADVISED BY COUNSEL
ESPECIALLY EXPERIENCED IN THIS FIELD, AND WAS DESIROUS OF MAKING THIS A
TEST CASE - REFUSED TO ANSWER THE QUESTIONS PROPOUNDED BEFORE THE GRAND
JURY THE SECOND TIME, HE DID NOT CLAIM ANY PRIVILEGE UNDER THE FIRST
AMENDMENT.  HIS COUNSEL, BY WAY OF DISPENSING WITH THE READING OF THE
MINUTES OF WHAT TOOK PLACE BEFORE THE GRAND JURY, STATED THAT "THE
REASON GIVEN FOR HIS REFUSAL WAS THAT HE FEARED THE ANSWERS MIGHT
INCRIMINATE HIM AND HE PLEADED HIS PRIVILEGE UNDER THE FIFTH AMENDMENT
OF THE CONSTITUTION." 

MR. JUSTICE REED CONCURS IN THE OPINION AND JUDGMENT OF THE COURT
EXCEPT AS TO THE STATEMENT THAT NO CONSTITUTIONAL GUARANTEE ENJOYS
PREFERENCE.  MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 115; THOMAS V.
COLLINS, 323 U.S. 516, 530; CF. KOVACS V. COOPER, 336 U.S. 77, 88. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I WOULD REVERSE THE JUDGMENT OF CONVICTION.  I WOULD BASE THE
REVERSAL ON BOYD V. UNITED STATES, 116 U.S. 616, OR, IN THE
ALTERNATIVE, I WOULD OVERRULE THE FIVE-TO-FOUR DECISION OF BROWN V.
WALKER, 161 U.S. 591, AND ADOPT THE VIEW OF THE MINORITY IN THAT CASE
THAT THE RIGHT OF SILENCE CREATED BY THE FIFTH AMENDMENT IS BEYOND THE
REACH OF CONGRESS. 

FIRST, AS TO THE BOYD CASE.  THERE ARE NUMEROUS DISABILITIES CREATED
BY FEDERAL LAW THAT ATTACH TO A PERSON WHO IS A COMMUNIST.  THESE
DISABILITIES INCLUDE INELIGIBILITY FOR EMPLOYMENT IN THE FEDERAL
GOVERNMENT AND IN DEFENSE FACILITIES, DISQUALIFICATION FOR A PASSPORT,
THE RISK OF INTERNMENT, THE RISK OF LOSS OF EMPLOYMENT AS A
LONGSHOREMAN - TO MENTION ONLY A FEW.  (FN1)  THESE DISABILITIES
IMPOSED BY FEDERAL LAW ARE FORFEITURES WITHIN THE MEANING OF OUR CASES
AND AS MUCH PROTECTED BY THE FIFTH AMENDMENT AS CRIMINAL PROSECUTION
ITSELF.  BUT THERE IS NO INDICATION THAT THE IMMUNITY ACT, 68 STAT.
745, 18 U.S.C. (SUPP. II) SEC. 3486, GRANTS PROTECTION AGAINST THOSE
DISABILITIES.  THE MAJORITY WILL NOT SAY THAT IT DOES.  I THINK,
INDEED, THAT IT MUST BE READ AS GRANTING ONLY PARTIAL, NOT COMPLETE,
IMMUNITY FOR THE MATTER DISCLOSED UNDER COMPULSION.  YET, AS THE COURT
HELD IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 586, AN IMMUNITY STATUTE
TO BE VALID MUST "SUPPLY A COMPLETE PROTECTION FROM ALL THE PERILS
AGAINST WHICH THE CONSTITUTIONAL PROHIBITION WAS DESIGNED TO GUARD ...
." 

BOYD V. UNITED STATES, SUPRA, INVOLVED A PROCEEDING TO ESTABLISH A
FORFEITURE OF GOODS ALLEGED TO HAVE BEEN FRAUDULENTLY IMPORTED WITHOUT
PAYMENT OF DUTIES.  THE CLAIMANTS RESISTED AN ORDER REQUIRING THE
PRODUCTION OF AN INVOICE TO BE USED AGAINST THEM IN THE FORFEITURE
PROCEEDINGS.  THE COURT IN AN OPINION BY MR. JUSTICE BRADLEY SUSTAINED
THE DEFENSE OF THE FIFTH AMENDMENT.  THE COURT SAID, "A WITNESS, AS
WELL AS A PARTY, IS PROTECTED BY THE LAW FROM BEING COMPELLED TO GIVE
EVIDENCE THAT TENDS TO INCRIMINATE HIM, OR TO SUBJECT HIS PROPERTY TO
FORFEITURE."  116 U.S., AT 638.  AND SEE LEES V. UNITED STATES, 150
U.S. 476.  THE CONTRARY HOLDING WAS DEEMED HOSTILE TO THE SPIRIT OF OUR
INSTITUTIONS: 

"  ...  ANY COMPULSORY DISCOVERY BY EXTORTING THE PARTY'S OATH, OR
COMPELLING THE PRODUCTION OF HIS PRIVATE BOOKS AND PAPERS, TO CONVICT
HIM OF CRIME, OR TO FORFEIT HIS PROPERTY, IS CONTRARY TO THE PRINCIPLES
OF A FREE GOVERNMENT.  IT IS ABHORRENT TO THE INSTINCTS OF AN
AMERICAN.  IT MAY SUIT THE PURPOSES OF DESPOTIC POWER; BUT IT CANNOT
ABIDE THE PURE ATMOSPHERE OF POLITICAL LIBERTY AND PERSONAL FREEDOM." 
116 U.S., AT 631-632. 

THE FORFEITURE OF PROPERTY ON COMPELLED TESTIMONY IS NO MORE
ABHORRENT THAN THE FORFEITURE OF RIGHTS OF CITIZENSHIP.  ANY FORFEITURE
OF RIGHTS AS A RESULT OF COMPELLED TESTIMONY IS AT WAR WITH THE FIFTH
AMENDMENT. 

THE COURT APPARENTLY DISTINGUISHES THE BOYD CASE ON THE GROUND THAT
THE FORFEITURE OF PROPERTY WAS A PENALTY AFFIXED TO A CRIMINAL ACT. 
THE LOSS OF A JOB AND THE INELIGIBILITY FOR A PASSPORT ARE ALSO
PENALTIES AFFIXED TO A CRIMINAL ACT.  FOR THE CASE OF DENNIS V. UNITED
STATES, 341 U.S. 494, MAKES PLAIN THAT MEMBERSHIP IN THE COMMUNIST
PARTY IS A CRUCIAL LINK OF EVIDENCE FOR CONVICTION UNDER THE SMITH ACT,
54 STAT. 671, AS AMENDED, 62 STAT. 808, 18 U.S.C. SEC. 2385.  AND SEE
BLAU V. UNITED STATES, 340 U.S. 159.  WHEN A MAN LOSES A JOB BECAUSE HE
IS A COMMUNIST, THERE IS AS MUCH A PENALTY SUFFERED AS WHEN AN IMPORTER
LOSES PROPERTY BECAUSE HE IS A TAX EVADER.  WHEN A MAN LOSES HIS RIGHT
TO A PASSPORT BECAUSE HE IS A COMMUNIST, THERE IS AS MUCH A PENALTY
SUFFERED AS WHEN PROPERTY IS LOST FOR VIOLATION OF THE REVENUE LAWS. 
IF THERE WAS A PENALTY SUFFERED IN THE BOYD CASE, THERE ARE PENALTIES
SUFFERED HERE.  BOTH ARE HITCHED TO CRIMINAL ACTS.  AND THE
CONSTITUTION PLACES THE PROPERTY RIGHTS INVOLVED IN THE BOYD CASE NO
HIGHER THAN THE RIGHTS OF CITIZENSHIP INVOLVED HERE. 

THE COURT MAY MEAN THAT IF DISQUALIFICATION FOR GOVERNMENT EMPLOYMENT
OR INELIGIBILITY FOR A PASSPORT IS A FORFEITURE WITHIN THE MEANING OF
THE BOYD CASE, CONGRESS HAS LIFTED THESE DISABILITIES IN EXCHANGE FOR
THE WITNESS' TESTIMONY.  CONGRESS, I THINK, WILL BE SUPRISED TO HEAR
THIS.  THERE IS NOTHING IN THE LEGISLATIVE HISTORY THAT WOULD SUGGEST
THAT CONGRESS WAS WILLING TO PAY ANY SUCH PRICE FOR THE TESTIMONY.  IF
THE DISABILITIES WHICH ATTACH UNDER EXISTING LAW ARE FORFEITURES, THE
COURT SHOULD STRIKE DOWN THE ACT.  IF CONGRESS CHOOSES TO ENACT A NEW
IMMUNITY ACT BROAD ENOUGH TO PROTECT AGAINST ALL FORFEITURES, IT IS
FREE TO DO SO.  THE COURT SEEMS TO COMMIT CONGRESS TO A POLICY THAT
THERE IS NO INDICATION CONGRESS FAVORS. 

WE SHOULD APPLY THE PRINCIPLE OF THE BOYD CASE TO THE PRESENT ONE AND
HOLD THAT SINCE THERE IS NO PROTECTION IN THE IMMUNITY ACT AGAINST LOSS
OF RIGHTS OF CITIZENSHIP, THE IMMUNITY GRANTED IS LESS THAN THE
PROTECTION AFFORDED BY THE CONSTITUTION.  CERTAINLY PERSONAL FREEDOM
HAS AT LEAST AS MUCH CONSTITUTIONAL DIGNITY AS PROPERTY. 

SECOND, AS TO BROWN V. WALKER.  THE DIFFICULTY I HAVE WITH THAT
DECISION AND WITH THE MAJORITY OF THE COURT IN THE PRESENT CASE IS THAT
THEY ADD AN IMPORTANT QUALIFICATION TO THE FIFTH AMENDMENT.  THE
GUARANTEE IS THAT NO PERSON "SHALL BE COMPELLED IN ANY CRIMINAL CASE TO
BE A WITNESS AGAINST HIMSELF."  THE MAJORITY DOES NOT ENFORCE THAT
GUARANTEE AS WRITTEN BUT QUALIFIES IT; AND THE QUALIFICATION APPARENTLY
READS, "BUT ONLY IF CRIMINAL CONVICTION MIGHT RESULT."  WISELY OR NOT,
THE FIFTH AMENDMENT PROTECTS AGAINST THE COMPULSORY SELF-ACCUSATION OF
CRIME WITHOUT EXCEPTION OR QUALIFICATION.  IN COUNSELMAN V. HITCHCOCK,
SUPRA, AT 562, MR. JUSTICE BLATCHFORD SAID, "THE PRIVILEGE IS LIMITED
TO CRIMINAL MATTERS, BUT IT IS AS BROAD AS THE MISCHIEF AGAINST WHICH
IT SEEKS TO GUARD." 

THE "MISCHIEF" TO BE PREVENTED FALLS UNDER AT LEAST THREE HEADS. 

(1)  ONE "MISCHIEF" IS NOT ONLY THE RISK OF CONVICTION BUT THE RISK
OF PROSECUTION.  MR. JUSTICE SHIRAS, ONE OF THE FOUR DISSENTERS IN
BROWN V. WALKER, ALLUDED TO THIS DIFFICULTY WHEN HE DECLARED THAT THE
IMMUNITY STATUTE INVOLVED IN THAT CASE WAS UNCONSTITUTIONAL: 

"  ...  ALL THAT CAN BE SAID IS, THAT THE WITNESS IS NOT PROTECTED,
BY THE PROVISION IN QUESTION, FROM BEING PROSECUTED, BUT THAT HE HAS
BEEN FURNISHED WITH A GOOD PLEA TO THE INDICTMENT, WHICH WILL SECURE
HIS ACQUITTAL.  BUT IS THAT TRUE?  NOT UNLESS THE PLEA IS SUSTAINED BY
COMPETENT EVIDENCE.  HIS CONDITION, THEN, IS THAT HE HAS BEEN
PROSECUTED, BEEN COMPELLED, PRESUMABLY, TO FURNISH BAIL, AND PUT TO THE
TROUBLE AND EXPENSE OF EMPLOYING COUNSEL AND FURNISHING THE EVIDENCE TO
MAKE GOOD HIS PLEA."  161 U.S., AT 621.    THE RISK OF PROSECUTION IS
NOT A RISK WHICH THE WISE TAKE LIGHTLY.  AS EXPERIENCED A JUDGE AS
LEARNED HAND ONCE SAID, "I MUST SAY THAT, AS A LITIGANT, I SHOULD DREAD
A LAWSUIT BEYOND ALMOST ANYTHING ELSE SHORT OF SICKNESS AND OF DEATH." 
SEE FRANK, COURTS ON TRIAL (1949), 40.  A PART OF THE DREAD IN A CASE
SUCH AS THIS IS THE CHAIN OF EVENTS THAT MAY BE PUT IN MOTION ONCE
DISCLOSURE IS MADE.  THE TRUTH IS, I THINK, THAT THERE IS NO CONTROL
LEFT, ONCE THE RIGHT OF SECRECY IS BROKEN.  FOR THE STATUTE PROTECTS
THE ACCUSED ONLY ON ACCOUNT OF THE "TRANSACTION, MATTER, OR THING"
CONCERNING WHICH HE IS COMPELLED TO TESTIFY AND BARS THE USE AS
EVIDENCE OF THE "TESTIMONY SO COMPELLED."  THE FORCED DISCLOSURE MAY
OPEN UP VAST NEW VISTAS FOR THE PROSECUTOR WITH LEADS TO NUMEROUS
ACCUSATIONS NOT WITHIN THE PURVIEW OF THE QUESTION AND ANSWER.  WHAT
RELATED OFFENSES MAY BE DISCLOSED BY LEADS FURNISHED BY THE
CONFESSION?  HOW REMOTE NEED THE OFFENSE BE BEFORE THE IMMUNITY CEASES
TO PROTECT IT? HOW MUCH LITIGATION WILL IT TAKE TO DETERMINE IT?  WHAT
WILL BE THE REACTION OF THE HIGHEST COURT WHEN THE FACTS OF THE CASE
REACH IT? 

IT IS, FOR EXAMPLE, A CRIME FOR A PERSON WHO IS A MEMBER OF A
COMMUNIST ORGANIZATION REGISTERED UNDER THE SUBVERSIVE ACTIVITIES
CONTROL ACT, 64 STATE.  987, 50 U.S.C. SEC. 781, TO BE EMPLOYED BY THE
UNITED STATES, TO BE EMPLOYED IN ANY DEFENSE FACILITY, TO HOLD OFFICE
OR EMPLOYMENT WITH ANY LABOR ORGANIZATION, SEC. 5(A)(1), OR TO APPLY
FOR A PASSPORT OR TO USE A PASSPORT.  SEC. 6(A).  THE CRIME UNDER THAT
ACT IS THE APPLICATION FOR A PASSPORT, THE USE OF A PASSPORT, OR
EMPLOYMENT BY ONE OF THE NAMED AGENCIES, AS THE CASE MAY BE.  ARE THOSE
CRIMES INCLUDED WITHIN THE "TRANSACTION, MATTER, OR THING" PROTECTED BY
THE IMMUNITY ACT? 

THE TAFT-HARTLEY ACT, 61 STAT. 146, 29 U.S.C. SEC. 159(H), REQUIRES
OFFICERS OF LABOR ORGANIZATIONS TO FILE NON-COMMUNIST AFFIDAVITS AS A
CONDITION TO THE EXERCISE BY THE NATIONAL LABOR RELATIONS BOARD OF ITS
POWER TO MAKE INVESTIGATIONS OR TO ISSUE COMPLAINTS.  A WITNESS BEFORE
A GRAND JURY OR CONGRESSIONAL COMMITTEE IS COMPELLED UNDER THE FORCE OF
THE IMMUNITY ACT TO TESTIFY.  HE TESTIFIES THAT HE IS NOT A MEMBER OF
THE COMMUNIST PARTY.  HE THEN FILES AN AFFIDAVIT UNDER THE TAFT-HARTLEY
ACT TO THAT EFFECT.  MAY HE BE PROSECUTED FOR FILING A FALSE
AFFIDAVIT? 

THESE ARE REAL AND DREAD UNCERTAINTIES THAT THE IMMUNITY ACT DOES NOT
REMOVE.  THEY EMPHASIZE THAT ONE PROTECTIVE FUNCTION OF THE FIFTH
AMENDMENT IS AT ONCE REMOVED WHEN THE GUARANTEE AGAINST SELF
INCRIMINATION IS QUALIFIED IN THE MANNER IT IS TODAY. 

THE COURT LEAVES ALL THOSE UNCERTAINTIES TO ANOTHER DAY, SAYING THAT
THE IMMUNITY GRANTED BY CONGRESS WILL EXTEND TO ITS CONSTITUTIONAL
LIMITS AND THAT THOSE CONSTITUTIONAL LIMITS WILL BE DETERMINED CASE BY
CASE IN FUTURE LITIGATION.  THAT MEANS THAT NO ONE KNOWS WHAT THE
LIMITS ARE.  THE COURT WILL NOT SAY.  ONLY LITIGATION ON A DISTANT DAY
CAN DETERMINE IT. 

THE CONCESSION OF THE COURT UNDERLINES MY POINT.  IT SHOWS THAT THE
PRIVILEGE OF SILENCE IS EXCHANGED FOR A PARTIAL, UNDEFINED, VAGUE
IMMUNITY.  IT MEANS THAT CONGRESS HAS GRANTED FAR LESS THAN IT HAS
TAKEN AWAY. 

(2)  THE GUARANTEE AGAINST SELF-INCRIMINATION CONTAINED IN THE FIFTH
AMENDMENT IS NOT ONLY A PROTECTION AGAINST CONVICTION AND PROSECUTION
BUT A SAFEGUARD OF CONSCIENCE AND HUMAN DIGNITY AND FREEDOM OF
EXPRESSION AS WELL.  MY VIEW IS THAT THE FRAMERS PUT IT BEYOND THE
POWER OF CONGRESS TO COMPEL ANYONE TO CONFESS HIS CRIMES.  THE EVIL TO
BE GUARDED AGAINST WAS PARTLY SELF-ACCUSATION UNDER LEGAL COMPULSION. 
BUT THAT WAS ONLY A PART OF THE EVIL.  THE CONSCIENCE AND DIGNITY OF
MAN WERE ALSO INVOLVED.  SO TOO WAS HIS RIGHT TO FREEDOM OF EXPRESSION
GUARANTEED BY THE FIRST AMENDMENT.  (FN2)  THE FRAMERS, THEREFORE,
CREATED THE FEDERALLY PROTECTED RIGHT OF SILENCE AND DECREED THAT THE
LAW COULD NOT BE USED TO PRY OPEN ONE'S LIPS AND MAKE HIM A WITNESS
AGAINST HIMSELF. 

A LONG HISTORY AND A DEEP SENTIMENT LAY BEHIND THIS DECISION.  SOME
OF THOSE WHO CAME TO THESE SHORES WERE PURITANS WHO HAD KNOWN THE HATED
OATH EX OFFICIO USED BOTH BY THE STAR CHAMBER AND THE HIGH COMMISSION. 
SEE MAGUIRE, ATTACK OF THE COMMON LAWYERS ON THE OATH EX OFFICIO AS
ADMINISTERED IN THE ECCLESIASTICAL COURTS OF ENGLAND, ESSAYS IN HISTORY
AND POLITICAL THEORY (1936), C. VII.  THEY HAD KNOWN THE GREAT
REBELLION OF LILBURN, CARTWRIGHT AND OTHERS AGAINST THOSE INSTRUMENTS
OF OPPRESSION.  CARTWRIGHT HAD REFUSED TO TAKE THE OATH EX OFFICIO
BEFORE THE HIGH COMMISSION ON THE GROUNDS THAT "HEE THOUGHT HE WAS NOT
BOUND BY THE LAWES OF GOD SO TO DOE."  PEARSON, THOMAS CARTWRIGHT AND
ELIZABETHAN PURITANISM 1535-1603 (1925), 318.  LILBURN MARSHALLED MANY
ARGUMENTS AGAINST THE OATH EX OFFICIO, ONE OF THEM BEING THE SANCTITY
OF CONSCIENCE AND THE DIGNITY OF MAN BEFORE GOD: 

"AS FOR THAT OATH THAT WAS PUT UPON ME, I DID REFUSE TO TAKE IT AS A
SINFUL AND UNLAWFUL OATH, AND BY THE STRENGTH OF MY GOD ENABLING ME, I
WILL NEVER TAKE IT, THOUGH I BE PULLED IN PIECES BY WILD HORSES, AS THE
ANTIENT CHRISTIANS WERE BY THE BLOODY TYRANTS IN THE PRIMITIVE CHURCH;
NEITHER SHALL I THINK THAT MAN A FAITHFUL SUBJECT OF CHRIST'S KINGDOM,
THAT SHALL AT ANY TIME HEREAFTER TAKE IT, SEEING THE WICKEDNESS OF IT
HATH BEEN SO APPARENTLY LAID OPEN BY SO MANY, FOR THE REFUSAL WHEREOF
MANY DO SUFFER CRUEL PERSECUTION TO THIS DAY."  THE TRIAL OF LILBURN
AND WHARTON, 3 HOW.  ST. TR. 1315, 1332. 

THE LITERATURE OF THE LEVELLERS, OF WHOM LILBURN WAS A LEADER,
ABOUNDS IN THIS ATTITUDE.  IN 1648, THERE WAS PUBLISHED A DECLARATION
IN THE FORM OF A PETITION, ITEM 12 OF WHICH READS: 

"THAT ALL STATUTES FOR ALL KINDS OF OATHS, WHETHER IN CORPORATIONS,
CITIES, OR OTHER, WHICH INSNARE CONSCIENTIOUS PEOPLE, AS ALSO OTHER
STATUTES, INJOYNING ALL TO HEAR THE BOOK OF COMMON PRAYER, BE FORTHWITH
REPEALED AND NULLED, AND THAT NOTHING BE IMPOSED UPON THE CONSCIENCES
OF ANY TO COMPEL THEM TO SIN AGAINST THEIR OWN CONSCIENCES."  HALLER &
DAVIES, THE LEVELLER TRACTS 1647-1653 (1944), 112. 

IN 1653, LILBURN PUBLISHED THE JUST DEFENCE IN WHICH HE WROTE: 

"ANOTHER FUNDAMENTAL RIGHT I THEN CONTENDED FOR, WAS, THAT NO MANS
CONSCIENCE OUGHT TO BE RACKED BY OATHS IMPOSED, TO ANSWER TO QUESTIONS
CONCERNING HIMSELF IN MATTERS CRIMINAL, OR PRETENDED TO BE SO."  HALLER
& DAVIES, ID., AT 454. 

THESE ARE IMPORTANT DECLARATIONS, AS THEY THROW LIGHT ON THE MEANING
OF "COMPELLED" AS USED IN THE FIFTH AMENDMENT. 

THE AMENDING PROCESS THAT BROUGHT THE FIFTH AMENDMENT INTO THE
CONSTITUTION IS OF LITTLE AID IN OUR PROBLEM OF INTERPRETATION.  BUT
THERE ARE INDICATIONS IN THE DEBATES ON THE CONSTITUTION THAT THE EVIL
TO BE REMEDIED WAS THE USE OF TORTURE TO EXACT CONFESSIONS.  SEE, E.G.,
VIRGINIA DEBATES (2D ED. 1805), 221, 320-321; 2 ELLIOT'S DEBATES (2D
ED. 1876), 111.  IT WAS, INDEED, THE CONDEMNATION OF TORTURE TO EXACT
CONFESSIONS THAT WAS WRITTEN INTO THE EARLY LAW OF THE AMERICAN
COLONIES.  ARTICLE 45 OF THE MASSACHUSETTS BODY OF LIBERTIES OF 1641
PROVIDED IN PART, "NO MAN SHALL BE FORCED BY TORTURE TO CONFESSE ANY
CRIME AGAINST HIMSELFE NOR ANY OTHER  ...  ."  CONNECTICUT ADOPTED A
SIMILAR PROVISION.  LAWS OF CONNECTICUT COLONY (1865 ED.), 65. 
VIRGINIA SOON FOLLOWED SUIT:  "  ...  NOE LAW CAN COMPELL A MAN TO
SWEARE AGAINST HIMSELFE IN ANY MANNER WHEREIN HE IS LYABLE TO CORPORALL
PUNISHMENT."  HENING, STATUTES AT LARGE, VOL. II, 422. 

THE COMPULSION OUTLAWED WAS MORAL COMPULSION AS WELL AS PHYSICAL
COMPULSION.  AN EPISODE IN THE ADMINISTRATION OF GOVERNOR WILLIAM
BRADFORD OF THE PLYMOUTH PLANTATION ILLUSTRATES THE POINT.  HE SOUGHT
ADVICE FROM HIS MINISTERS ASKING, "HOW FARR A MAGISTRATE MAY EXTRACTE A
CONFESSION FROM A DELINQUENTE, TO ACCUSE HIM SELFE OF A CAPITALL CRIME
...  ."  THE THREE MINISTERS - RALPH PARTRICH, JOHN REYNOR, AND CHARLES
CHANCY - WERE UNANIMOUS IN CONCLUDING THAT THE OATH WAS AGAINST BOTH
THE LAWS OF GOD AND THE LAWS OF MAN.  PATRICH'S ANSWER IS TYPICAL: 

"THE MAGISTRATE MAY NOT EXTRACTE A CONFESSION OF A CAPITALL CRIME
FROM A SUSPECTED PERSON BY ANY VIOLENT MEANS, WHETHER IT BE BY AN OATH
IMPOSED, OR BY ANY PUNISHMENTE INFLICTED OR THREATENED TO BE
INFLICTED."  BRADFORD, HISTORY OF PLYMOUTH PLANTATION, MASS. HIST. SOC.
COLL.  SER.  4, VOL. III, 390-391. 

AND SEE GRISWOLD, THE FIFTH AMENDMENT TODAY (1955), 4; MORGAN, THE
PRIVILEGE AGAINST SELF-INCRIMINATION, 34 MINN. L. REV. 1, 22; PITTMAN,
THE COLONIAL AND CONSTITUTIONAL HISTORY OF THE PRIVILEGE AGAINST SELF
INCRIMINATION IN AMERICA, 21 VA. L. REV. 763, 769. 

THE COURT, BY FORGETTING THAT HISTORY, ROBS THE FIFTH AMENDMENT OF
ONE OF THE GREAT PURPOSES IT WAS DESIGNED TO SERVE.  TO REPEAT, THE
FIFTH AMENDMENT WAS WRITTEN IN PART TO PREVENT ANY CONGRESS, ANY COURT,
AND ANY PROSECUTOR FROM PRYING OPEN THE LIPS OF AN ACCUSED TO MAKE
INCRIMINATING STATEMENTS AGAINST HIS WILL.  THE FIFTH AMENDMENT
PROTECTS THE CONSCIENCE AND THE DIGNITY OF THE INDIVIDUAL, AS WELL AS
HIS SAFETY AND SECURITY, AGAINST THE COMPULSION OF GOVERNMENT.  (FN3) 

(3)  THIS RIGHT OF SILENCE, THIS RIGHT OF THE ACCUSED TO STAND MUTE
SERVES ANOTHER HIGH PURPOSE.  MR. JUSTICE FIELD, ONE OF THE FOUR
DISSENTERS IN BROWN V. WALKER, STATED THAT IT IS THE AIM OF THE FIFTH
AMENDMENT TO PROTECT THE ACCUSED FROM ALL COMPULSORY TESTIMONY "WHICH
WOULD EXPOSE HIM TO INFAMY AND DISGRACE," AS WELL AS THAT WHICH MIGHT
LEAD TO A CRIMINAL CONVICTION.  161 U.S., AT 631.  ONE OF THE MOST
POWERFUL OPINIONS IN THE BOOKS MAINTAINING THAT THESIS IS BY JUDGE
PETER S. GROSSCUP IN UNITED STATES V. JAMES, 60 F. 257, INVOLVING THE
SAME IMMUNITY ACT AS THE ONE INVOLVED IN BROWN V. WALKER.  JUDGE
GROSSCUP REVIEWED THE HISTORY OF THE REIGN OF INTOLERANCE THAT ONCE
RULED ENGLAND, THE CONTESTS BETWEEN CHURCH AND STATE, AND THE CRUELTIES
OF THE OLD LEGAL PROCEDURES.  JUDGE GROSSCUP SAID CONCERNING THE AIM OF
THE FRAMERS IN DRAFTING THE FIFTH AMENDMENT (ID., AT 264): 

"DID THEY ORIGINATE SUCH PRIVILEGE SIMPLY TO SAFEGUARD THEMSELVES
AGAINST THE LAW-INFLICTED PENALTIES AND FORFEITURES?  DID THEY TAKE NO
THOUGHT OF THE PAINS OF PRACTICAL OUTLAWRY?  THE STATED PENALTIES AND
FORFEITURES OF THE LAW MIGHT BE SET ASIDE; BUT WAS THERE NO PAIN IN
DISFAVOR AND ODIUM AMONG NEIGHBORS, IN EXCOMMUNICATION FROM CHURCH OR
SOCIETIES THAT MIGHT BE GOVERNED BY THE PREVAILING VIEWS, IN THE
PRIVATE LIABILITIES THAT THE LAW MIGHT AUTHORIZE, OR IN THE
UNFATHOMABLE DISGRACE, NOT SUSCEPTIBLE OF FORMULATION IN LANGUAGE,
WHICH A KNOWN VIOLATION OF LAW BRINGS UPON THE OFFENDER?  THEN, TOO, IF
THE IMMUNITY WAS ONLY AGAINST THE LAW-INFLICTED PAINS AND PENALTIES,
THE GOVERNMENT COULD PROBE THE SECRETS OF EVERY CONVERSATION, OR
SOCIETY, BY EXTENDING COMPULSORY PARDON TO ONE OF ITS PARTICIPANTS, AND
THUS TURN HIM INTO AN INVOLUNTARY INFORMER.  DID THE FRAMERS
CONTEMPLATE THAT THIS PRIVILEGE OF SILENCE WAS EXCHANGEABLE ALWAYS, AT
THE WILL OF THE GOVERNMENT, FOR A REMISSION OF THE PARTICIPANT'S OWN
PENALTIES, UPON A CONDITION OF DISCLOSURE, THAT WOULD BRING THOSE TO
WHOM HE HAD PLIGHTED HIS FAITH AND LOYALTY WITHIN THE GRASP OF THE
PROSECUTOR?  I CANNOT THINK SO." 

MR. JUSTICE FIELD AND JUDGE GROSSCUP WERE ON STRONG HISTORICAL
GROUND.  THE FIFTH AMENDMENT WAS DESIGNED TO PROTECT THE ACCUSED
AGAINST INFAMY AS WELL AS AGAINST PROSECUTION.  A RECENT ANALYSIS BY
PROFESSOR MITCHELL FRANKLIN OF TULANE ILLUMINATES THE POINT.  SEE THE
ENCYCLOPEDISTE ORIGIN AND MEANING OF THE FIFTH AMENDMENT, 15 LAWYERS
GUILD REV. 41.  HE SHOWS HOW THE ITALIAN JURIST, BECCARIA, AND HIS
FRENCH AND ENGLISH FOLLOWERS, INFLUENCED AMERICAN THOUGHT IN THE
CRITICAL YEARS FOLLOWING OUR REVOLUTION.  THE HISTORY OF INFAMY AS A
PUNISHMENT WAS NOTORIOUS.  LUTHER HAD INVEIGHED AGAINST
EXCOMMUNICATION.  THE MASSACHUSETTS BODY OF LIBERTIES OF 1641 HAD
PROVIDED IN ARTICLE 60:  "NO CHURCH CENSURE SHALL DEGRADE OR DEPOSE ANY
MAN FROM ANY CIVILL DIGNITIE, OFFICE, OR AUTHORITIE HE SHALL HAVE IN
THE COMMONWEALTH."  LOSS OF OFFICE, LOSS OF DIGNITY, LOSS OF FACE WERE
FEUDAL FORMS OF PUNISHMENT.  INFAMY WAS HISTORICALLY CONSIDERED TO BE
PUNISHMENT AS EFFECTIVE AS FINE AND IMPRISONMENT.  (FN4) 

THE BECCARIAN ATTITUDE TOWARD INFAMY WAS A PART OF THE BACKGROUND OF
THE FIFTH AMENDMENT.  THE CONCEPT OF INFAMY WAS EXPLICITLY WRITTEN INTO
IT.  WE NEED NOT GUESS AS TO THAT.  FOR THE FIRST CLAUSE OF THE FIFTH
AMENDMENT CONTAINS THE CONCEPT IN HAEC VERBA:  "NO PERSON SHALL BE HELD
TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, (FN5) UNLESS ON A
PRESENTMENT OR INDICTMENT OF A GRAND JURY  ...  ."  AND THE THIRD
CLAUSE, THE ONE WE ARE CONCERNED WITH HERE - "NO PERSON  ... SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF  ...  "
ALSO REFLECTS THE REVULSION OF SOCIETY AT INFAMY IMPOSED BY THE
STATE.  BECCARIA, WHOSE WORKS WERE WELL KNOWN HERE (FN6) AND WHO WAS
PARTICULARLY WELL KNOWN TO JEFFERSON, (FN7) WAS THE MAIN VOICE AGAINST
THE USE OF INFAMY AS PUNISHMENT.  THE CURSE OF INFAMY, HE SHOWED,
RESULTS FROM PUBLIC OPINION.  OPPRESSION OCCURS WHEN INFAMY IS IMPOSED
ON A CITIZEN BY THE STATE.  THE FRENCH JURIST, BRISSOT DE WARVILLE,
WROTE IN SUPPORT OF BECCARIA'S POSITION, "IT IS IN THE POWER OF THE
MORES RATHER THAN IN THE HANDS OF THE LEGISLATOR THAT THIS TERRIBLE
WEAPON OF INFAMY RESTS, THIS TYPE OF CIVIL EXCOMMUNICATION, WHICH
DEPRIVES THE VICTIM OF ALL CONSIDERATION, WHICH SEVERS ALL THE TIES
WHICH BIND HIM TO HIS FELLOW CITIZENS, WHICH ISOLATES HIM IN THE MIDST
OF SOCIETY.  THE PURER AND MORE UNTOUCHED THE CUSTOMS ARE, THE GREATER
THE FORCE OF INFAMY."  I THEORIE DES LOIX CRIMINELLES (1781) 188.  AS
DE PASTORET SAID, "INFAMY, BEING A RESULT OF OPINION, EXISTS
INDEPENDENTLY OF THE LEGISLATOR; BUT HE CAN EMPLOY IT ADROITLY TO MAKE
OF IT A SALUTARY PUNISHMENT."  (FN8)  DES LOIX PENALES (1790), PT. 2,
121.    IT WAS IN THIS TRADITION THAT LORD CHIEF JUSTICE TREBY RULED IN
1696 THAT "  ...  NO MAN IS BOUND TO ANSWER ANY QUESTIONS THAT WILL
SUBJECT HIM TO A PENALTY, OR TO INFAMY."  TRIAL OF FRIEND, 13 HOW.  ST.
TR. 1, 17. 

THERE IS GREAT INFAMY INVOLVED IN THE PRESENT CASE, APART FROM THE
LOSS OF RIGHTS OF CITIZENSHIP UNDER FEDERAL LAW WHICH I HAVE ALREADY
MENTIONED.  THE DISCLOSURE THAT A PERSON IS A COMMUNIST PRACTICALLY
EXCOMMUNICATES HIM FROM SOCIETY.  SCHOOL BOARDS WILL NOT HIRE HIM.  SEE
ADLER V. BOARD OF EDUCATION, 342 U.S. 485.  A LAWYER RISKS EXCLUSION
FROM THE BAR (IN RE ANASTAPLO, 3 ILL. 2D 471, 121 N.E.2D 826); A
DOCTOR, THE REVOCATION OF HIS LICENSE TO PRACTICE (CF. BARSKY V. BOARD
OF REGENTS, 347 U.S. 442).  IF AN ACTOR, HE IS ON A BLACK LIST.  (SEE
HOROWITZ, LOYALTY TESTS FOR EMPLOYMENT IN THE MOTION PICTURE INDUSTRY,
6 STAN.  L. REV. 438.)  AND HE WILL BE ABLE TO FIND NO EMPLOYMENT IN
OUR SOCIETY EXCEPT AT THE LOWEST LEVEL, IF AT ALL.  THESE FACTS MAKE
MOST PERSUASIVE THE WORDS OF JUDGE GROSSCUP IN UNITED STATES V. JAMES,
SUPRA, AT 264-265, WRITTEN IN 1894: 

"THE BATTLE FOR PERSONAL LIBERTY SEEMS TO HAVE BEEN ATTAINED, BUT, IN
THE ABSENCE OF THE DIN AND CLASH, WE CANNOT COMPREHEND THE MEANING OF
ALL THE SAFEGUARDS EMPLOYED.  WHEN WE SEE THE SHIELD HELD BEFORE THE
BRIBER, THE LIQUOR SELLER, THE USURY TAKER, THE DUELIST, AND THE OTHER
VIOLATORS OF ACCEPTED LAW, WE ARE MOVED TO BREAK OR CAST IT ASIDE,
UNMINDFUL OF THE SPLENDID PURPOSE THAT FIRST THREW IT FORWARD.  BUT,
WHATEVER ITS DISADVANTAGES NOW, IT IS A FIXED PRIVILEGE, UNTIL TAKEN
DOWN BY THE SAME POWER THAT EXTENDED IT.  IT IS NOT CERTAIN, EITHER,
THAT IT MAY NOT YET SERVE SOME USEFUL PURPOSE.  THE OPPRESSION OF
CROWNS AND PRINCIPALITIES IS UNQUESTIONABLY OVER, BUT THE MORE
FRIGHTFUL OPPRESSION OF SELFISH, RUTHLESS, AND MERCILESS MAJORITIES MAY
YET CONSTITUTE ONE OF THE CHAPTERS OF FUTURE HISTORY.  IN MY OPINION,
THE PRIVILEGE OF SILENCE, AGAINST A CRIMINAL ACCUSATION, GUARANTEED BY
THE FIFTH AMENDMENT, WAS MEANT TO EXTEND TO ALL THE CONSEQUENCES OF
DISCLOSURE." 

IT IS NO ANSWER TO SAY THAT A WITNESS WHO EXERCISES HIS FIFTH
AMENDMENT RIGHT OF SILENCE AND STANDS MUTE MAY BRING HIMSELF INTO
DISREPUTE.  IF SO, THAT IS THE PRICE HE PAYS FOR EXERCISING THE RIGHT
OF SILENCE GRANTED BY THE FIFTH AMENDMENT.  THE CRITICAL POINT IS THAT
THE CONSTITUTION PLACES THE RIGHT OF SILENCE BEYOND THE REACH OF
GOVERNMENT.  THE FIFTH AMENDMENT STANDS BETWEEN THE CITIZEN AND HIS
GOVERNMENT.  WHEN PUBLIC OPINION CASTS A PERSON INTO THE OUTER
DARKNESS, AS HAPPENS TODAY WHEN A PERSON IS EXPOSED AS A COMMUNIST, THE
GOVERNMENT BRINGS INFAMY ON THE HEAD OF THE WITNESS WHEN IT COMPELS
DISCLOSURE.  THAT IS PRECISELY WHAT THE FIFTH AMENDMENT PROHIBITS. 

FINALLY, IT IS SAID THAT WE SHOULD NOT DISTURB BROWN V. WALKER
BECAUSE IT IS AN OLD AND ESTABLISHED DECISION.  BUT THIS COURT HAS
ALWAYS BEEN WILLING TO RE-EXAMINE AND OVERRULE CONSTITUTIONAL
PRECEDENTS, EVEN THOSE OLD AND ESTABLISHED.  IN ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, THIS COURT OVERRULED SWIFT V. TYSON, 16 PET. 1,
WHICH HAD BEEN A RULE OF DECISION FOR 95 YEARS.  UNITED STATES V. SOUTH
EASTERN UNDERWRITERS ASSN., 322 U.S. 533, PARTLY OVERRULED PAUL V.
VIRGINIA, 8 WALL.  168, WHICH HAD BEEN DECIDED 75 YEARS PREVIOUSLY.  IN
KILBOURN V. THOMPSON, 103 U.S. 168, THE COURT REJECTED SOME OF THE
GROUNDS OF DECISION IN ANDERSON V. DUNN, 6 WHEAT.  204, WHICH HAD BEEN
STANDING FOR 59 YEARS.  BROWN V. WALKER, DECIDED BY A BARE MAJORITY OF
THE COURT AND NOW 60 YEARS OLD, HAS NO GREATER CLAIM TO SANCITY THAN
THE OTHER VENERABLE DECISIONS WHICH HISTORY SHOWED HAD OUTLIVED THEIR
USEFULNESS OR WERE CONCEIVED IN ERROR.  AND A REJECTION OF BROWN V.
WALKER WOULD CERTAINLY BE FAR LESS DISRUPTIVE OF A SYSTEM OF LAW THAN
WAS THE OVERRULING OF SWIFT V. TYSON, WHICH AFFECTED THE TRIAL OF EVERY
DIVERSITY CASE IN THE FEDERAL COURTS. 

FN1  SEE 64 STAT. 992, 50 U.S.C. SEC. 784, AS AMENDED, 68 STAT. 777,
50 U.S.C. (SUPP. II) SEC. 784 (PROHIBITION OF EMPLOYMENT IN THE FEDERAL
GOVERNMENT AND IN DEFENSE FACILITIES); 64 STAT. 993, 50 U.S.C. SEC. 785
(INELIGIBILITY FOR A PASSPORT); 64 STAT. 1019, 50 U.S.C.  SECS. 811-826
(THE POSSIBILITY OF INTERNMENT); 40 STAT. 220, AS AMENDED, 64 STAT.
427, 50 U.S.C. SEC. 191; 33 CFR, 1955 CUM. SUPP., SECS. 125.01, 125.29
(POSSIBILITY OF LOSS OF EMPLOYMENT AS A LONGSHOREMAN).  AND SEE 68
STAT. 776, 50 U.S.C. (SUPP. II) SEC. 843.  MOREOVER, UNDER THE
SUBVERSIVE ACTIVITIES CONTROL ACT, 64 STAT. 987, 50 U.S.C. SEC. 781,
DISCUSSED HEREAFTER, IT IS A CRIME FOR A PERSON WHO IS A MEMBER OF A
COMMUNIST ORGANIZATION REGISTERED UNDER THE ACT TO ENGAGE IN CERTAIN
ACTIVITY, E.G., TO HOLD OFFICE OR EMPLOYMENT WITH ANY LABOR
ORGANIZATION, TO WORK FOR THE GOVERNMENT OR HAVE EMPLOYMENT IN ANY
DEFENSE FACILITY, SEC. 5(A)(1), OR TO APPLY FOR OR USE A PASSPORT SEC.
6(A). 

FN2  THE IMPACT OF PUBLIC IDENTIFICATION ON FIRST AMENDMENT FREEDOMS
WAS ACKNOWLEDGED BY CHIEF JUSTICE VINSON IN AMERICAN COMMUNICATIONS
ASSN. V. DOUDS, 339 U.S. 382, 402, WHERE HE SAID:  "UNDER SOME
CIRCUMSTANCES, INDIRECT 'DISCOURAGEMENTS' UNDOUBTEDLY HAVE THE SAME
COERCIVE EFFECT UPON THE EXERCISE OF FIRST AMENDMENT RIGHTS AS
IMPRISONMENT, FINES, INJUNCTIONS OR TAXES.  A REQUIREMENT THAT
ADHERENTS OF PARTICULAR RELIGIOUS FAITHS OR POLITICAL PARTIES WEAR
IDENTIFYING ARM-BANDS, FOR EXAMPLE, IS OBVIOUSLY OF THIS NATURE." 

FN3  DEAN ERWIN N. GRISWOLD OF HARVARD RECENTLY WROTE: 

"WHERE MATTERS OF A MAN'S BELIEF OR OPINIONS OR POLITICAL VIEWS ARE
ESSENTIAL ELEMENTS IN THE CHARGE, IT MAY BE MOST DIFFICULT TO GET
EVIDENCE FROM SOURCES OTHER THAN THE SUSPECTED OR ACCUSED PERSON
HIMSELF.  HENCE, THE SIGNIFICANCE OF THE PRIVILEGE OVER THE YEARS HAS
PERHAPS BEEN GREATEST IN CONNECTION WITH RESISTENCE TO PROSECUTION FOR
SUCH OFFENSES AS HERESY OR POLITICAL CRIMES.  IN THESE AREAS THE
PRIVILEGE AGAINST SELF-INCRIMINATION HAS BEEN A PROTECTION FOR FREEDOM
OF THOUGHT AND A HINDRANCE TO ANY GOVERNMENT WHICH MIGHT WISH TO
PROSECUTE FOR THOUGHTS AND OPINIONS ALONE."  THE FIFTH AMENDMENT TODAY,
SUPRA, 8-9. 

FN4  INFAMY AS A SANCTION IN ROMAN LAW IS TRACED IN TATARCZUK, INFAMY
OF LAW, CANON LAW STUDIES NO. 357, THE CATHOLIC UNIVERSITY OF AMERICA
(1954), 1-13.  THE PENALTIES THAT ROMAN LAW ATTACHED TO INFAMY ARE
FAMILIAR:  EXCLUSION FROM THE ARMY, FROM ALL PUBLIC SERVICE, AND FROM
THE EXERCISE OF CERTAIN PUBLIC RIGHTS.  ID., AT 10. 

FN5  THE CASES ARISING UNDER THE FIRST CLAUSE OF THE FIFTH AMENDMENT
RECOGNIZE THAT WHAT MAY BE CONSIDERED AN "INFAMOUS CRIME" WITHIN THE
MEANING OF THAT CLAUSE MAY BE AFFECTED BY CHANGES OF PUBLIC OPINION
FROM ONE AGE TO ANOTHER.  SEE EX PARTE WILSON, 114 U.S. 417, 427;
MACKIN V. UNITED STATES, 117 U.S. 348, 351; UNITED STATES V. MORELAND,
258 U.S. 433, 441, 451 (DISSENTING OPINION BY BRANDEIS, J.).  IN UNITED
STATES V. WADDELL, 112 U.S. 76, THE COURT REFUSED TO DECIDE THE "VERY
IMPORTANT" QUESTION WHETHER A CRIME WAS MADE "INFAMOUS" WHEN UPON
CONVICTION THE DEFENDANT BECAME "INELIGIBLE TO ANY OFFICE, OR PLACE OF
HONOR, PROFIT OR TRUST CREATED BY THE CONSTITUTION OR LAWS OF THE
UNITED STATES."  JUSTICE MILLER SAID: "WHEN WE BRING THIS LANGUAGE,
WHICH IS NOT THE SENTENCE OF THE COURT, BUT AN INDELIBLE DISGRACE
AFFIXED TO THE PARTY CONVICTED, BY THE DECLARATION OF THE LAW ITSELF,
INTO DIRECT CONNECTION WITH THE LANGUAGE OF THE FIFTH ARTICLE OF
AMENDMENT OF THE CONSTITUTION  ...  THERE DOES ARISE A VERY SERIOUS
QUESTION WHETHER THIS CRIME IS NOT MADE AN INFAMOUS ONE BY THE LANGUAGE
OF THE STATUTE, AND CANNOT, THEREFORE, BE PROSECUTED BY INFORMATION." 
ID., AT 82.  THE COURT DID NOT DECIDE THE QUESTION BECAUSE IT HAD NOT
BEEN ARGUED NOR PRESENTED TO THE LOWER COURTS.  AND SEE EX PARTE
WILSON, SUPRA, AT 426. 

THE FIFTH AND SIXTH AMENDMENTS PLACE THE GRAND AND PETIT JURIES AS
BARRIERS BETWEEN THE GOVERNMENT AND THE INDIVIDUAL.  THE PROVISIONS FOR
THOSE TWO JURIES HELP EMPHASIZE THE FUNCTION PLAYED BY THE BILL OF
ATTAINDER CLAUSES OF THE CONSTITUTION.  SEE ART. I, SEC. 9, CL. 3; ART.
I, SEC. 10, CL. 1.  THE GUARANTEE OF JURY TRIAL AND THE PROHIBITION OF
BILLS OF ATTAINDER PLACE BEYOND THE PALE THE IMPOSITION OF INFAMY OR
OUTLAWRY BY EITHER THE EXECUTIVE OR THE CONGRESS.  THE PENALTIES
PROSCRIBED AS BILLS OF ATTAINDER EXTEND TO DISQUALIFICATION FOR
GOVERNMENT EMPLOYMENT AND OUTLAWRY FROM THE PROFESSIONS.  SEE UNITED
STATES V. LOVETT, 328 U.S. 303; EX PARTE GARLAND, 4 WALL.  333;
CUMMINGS V. MISSOURI, 4 WALL.  277. 

FN6  BECCARIA SEEMS TO HAVE BEEN PRINCIPALLY INTRODUCED TO AMERICA BY
VOLTAIRE.  SEE BARR, VOLTAIRE IN AMERICA (1941), 23-24.  BARR STATES,
"BECCARIA'S ESSAY ON CRIMES AND PUNISHMENT WITH ITS FAMOUS COMMENTARY
BY VOLTAIRE WAS KNOWN IN AMERICA IMMEDIATELY AFTER ITS FIRST APPEARANCE
IN FRANCE AND WAS THE FIRST OF VOLTAIRE'S WORKS TO BE PUBLISHED IN
AMERICA.  IT WAS POPULAR IN LENDING LIBRARIES AND AS A QUICKLY SOLD
ITEM IN BOOKSTORES, BECAUSE OF GENERAL INTEREST IN THE FORMATION OF A
NEW SOCIAL ORDER.  A SEPARATE MONOGRAPH WOULD BE NECESSARY TO TRACE THE
INFLUENCE OF THIS EPOCH-MAKING TRACT."  ID., AT 119. 

FN7  SEE CHINARD, THE COMMONPLACE BOOK OF THOMAS JEFFERSON (1926),
298 ET SEQ. 

FN8  DE PASTORET, SUPRA, 125-126, WROTE: 

"PENALTIES WHICH, IN FRANCE, PRODUCE INFAMY IN LAW ARE (IN ADDITION
TO CORPORAL OR AFFLICTIVE PENALTIES), LA CLAIE,* THE IRON COLLAR OR THE
PILLORY, CIVIL DEATH, CENSURE, CONDEMNATION OF MEMORY, CONDEMNATION TO
BE LED AROUND ON AN ASS WEARING A STRAW HAT, DEGREDATION FROM THE ORDER
OF NOBILITY, FINE IN A CRIMINAL MATTER WHEN A JUDGMENT CONFIRMS IT  ...
PUBLIC CONFESSION AND APOLOGY, FORCED ALMS IN CIVIL MATTERS, PERMANENT
PROHIBITION TO HOLD OFFICE." 

*TRAINER SUR LA CLAIE WAS THE MEANS USED TO DRAG THE CONDEMNED TO
EXECUTION.  THE SAME THING WAS DONE TO THE BODIES OF SUICIDES.  FOR A
DESCRIPTION OF THIS, SEE SAINT-EDME, DICTIONNAIRE DE LA PENALITE DANS
TOUTES LES PARTIES DU MONDE CONNU (1825), VOL. 3, 242-244. 
..END :
















MILLINERY CENTER BUILDING CORP. V. COMMISSIONER OF INTERNAL REVENUE 350
U.S. 456 


NO. 255.  ARGUED MARCH 1, 1956 - DECIDED MARCH 26, 1956 - 211 F.2D 322,
AFFIRMED. 


IN APRIL 1924, PETITIONER LEASED LAND IN NEW YORK CITY FOR 21 YEARS,
WITH AN OPTION TO RENEW THE LEASE FOR TWO FURTHER 21-YEAR PERIODS.  IN
ACCORDANCE WITH THE TERMS OF THE LEASE, IT ERECTED A 22-STORY LOFT
BUILDING AT A COST OF $3,000,000.  THE LEASE, AS AMENDED IN 1935,
PROVIDED FOR AN ANNUAL RENTAL OF $118,840.  TITLE TO THE BUILDING WAS
IN PETITIONER, BUT AT THE EVENTUAL TERMINATION OF THE LEASE IT WOULD
VEST, WITHOUT PAYMENT, IN THE LESSOR, AT THE LESSOR'S OPTION.  DURING
THE FIRST 21-YEAR PERIOD OF THE LEASE, PETITIONER FULLY DEPRECIATED THE
ENTIRE $3,000,000 COST OF THE BUILDING.  IN APRIL 1945, IT EXERCISED
ITS OPTION TO RENEW THE LEASE UNTIL APRIL 1966.  IN MAY 1945, IT
PURCHASED THE FEE AND OBTAINED RELEASE FROM THE OBLIGATIONS OF THE
RENEWED LEASE, AT A PRICE OF $2,100,000.  WHEN PURCHASED BY PETITIONER,
THE VALUE OF THE LAND, AS UNIMPROVED, WAS $660,000.  HELD: 

1.  UNDER SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE OF 1939, THE
PURCHASE PRICE PAID BY PETITIONER REPRESENTS THE COST OF ACQUIRING THE
COMPLETE FEE TO THE LAND AND THE BUILDING, BOTH CAPITAL ASSETS, AND NO
DEDUCTION AS AN ORDINARY AND NECESSARY BUSINESS EXPENSE CAN BE TAKEN. 
PP. 457-460. 

2.  PETITIONER IS NOT ENTITLED TO AMORTIZE, OVER THE REMAINING TERM
OF THE EXTINGUISHED LEASE, THAT PORTION OF THE EXCESS OF THE PAYMENT OF
$2,100,000 ABOVE THE DETERMINED LAND VALUE OF $660,000 WHICH IS
ALLOCABLE TO THE ACQUISITION OF RIGHTS IN THE BUILDING.  PP. 460--461. 

3.  THE JUDGMENT OF THE COURT OF APPEALS IN THIS CASE IS AFFIRMED,
LEAVING TO THE TAX COURT THE ALLOCATION STILL TO BE MADE.  P. 461. 

MILLINERY CENTER BUILDING CORP. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES AN INTERPRETATION OF SEC. 23(A)(1)(A) OF THE
INTERNAL REVENUE CODE OF 1939, AS AMENDED, 26 U.S.C. SEC. 23(A)(1)(A),
PROVIDING FOR THE DEDUCTION FROM GROSS INCOME, IN COMPUTING NET INCOME,
OF ALL THE "ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED  ...  IN
CARRYING ON ANY TRADE OR BUSINESS  ...  ."  THE COMMISSIONER DETERMINED
A DEFICIENCY IN PETITIONER'S EXCESS-PROFITS TAX FOR 1945; PETITIONER
SOUGHT A REDETERMINATION OF ITS LIABILITY IN THE TAX COURT, WHICH MADE
THE FOLLOWING FINDINGS OF FACT.  IN APRIL 1924, PETITIONER LEASED LAND
IN NEW YORK CITY FOR 21 YEARS, WITH AN OPTION TO RENEW THE LEASE FOR
TWO FURTHER 21-YEAR PERIODS.  IN ACCORDANCE WITH THE TERMS OF THE
LEASE, IT ERECTED A 22-STORY LOFT BUILDING AT A COST OF $3,000,000. 
THE LEASE, AS AMENDED IN 1935, PROVIDED FOR AN ANNUAL RENTAL OF
$118,840.  TITLE TO THE BUILDING WAS IN PETITIONER, BUT AT THE EVENTUAL
TERMINATION OF THE LEASE IT WOULD VEST, WITHOUT PAYMENT, IN THE LESSOR,
AT THE LESSOR'S OPTION.  THE LESSOR COULD ALSO REQUIRE PETITIONER TO
REMOVE THE BUILDING AT THAT TIME.  PETITIONER HAD THE OBLIGATION, IN
CASE OF DESTRUCTION OF THE BUILDING, TO REBUILD AT ITS OWN COST. 
DURING THE FIRST 21-YEAR PERIOD OF THE LEASE, PETITIONER FULLY
DEPRECIATED THE ENTIRE $3,000,000 COST OF THE BUILDING.  IN APRIL 1945,
IT EXERCISED ITS OPTION TO RENEW THE LEASE UNTIL APRIL 1966. 

IN MAY 1945, PETITIONER ENTERED INTO AN AGREEMENT WITH THE OWNER
WHEREBY IT PURCHASED THE FEE AND OBTAINED RELEASE FROM THE OBLIGATIONS
OF THE RENEWED LEASE.  THE PRICE PAID WAS $2,100,000.  THE TAX COURT
ALSO FOUND THAT THE VALUE OF THE LAND, AS UNIMPROVED, WAS $660,000 WHEN
PURCHASED BY PETITIONER IN 1945. 

THE PRINCIPAL ISSUES RAISED BY PETITIONER RELATE TO ITS ATTEMPT TO
DEDUCT $1,440,000 - THE DIFFERENCE BETWEEN THE PRICE UNDER THE MAY 1945
AGREEMENT AND THE 1945 VALUE OF THE UNIMPROVED LAND - AS AN ORDINARY
AND NECESSARY EXPENSE OF DOING BUSINESS.  THE TAX COURT HELD THAT THE
DIFFERENCE COULD NOT BE SO DEDUCTED, THAT THE DIFFERENCE COULD NOT BE
AMORTIZED OVER THE REMAINING TERM OF THE CANCELLED LEASE, AND THAT NO
ANNUAL DEPRECIATION COULD BE TAKEN BECAUSE THE COST OF THE BUILDING HAD
ALREADY BEEN FULLY DEPRECIATED AND THE PURCHASE PRICE COULD NOT BE
SEPARATED INTO PURCHASE PRICE FOR BUILDING AND PURCHASE PRICE FOR
LAND.  21 T.C. 817.  SIX OF THE JUDGES OF THE TAX COURT DISSENTED ON
THE GROUND THAT "SOME PART OF THE PURCHASE PRICE SHOULD BE ALLOCATED TO
THE ADDITIONAL RIGHTS IN THE BUILDING ACQUIRED IN THE PURCHASE  ...
."  21 T.C., AT 826. 

ON PETITION FOR REVIEW, THE COURT OF APPEALS FOR THE SECOND CIRCUIT
REVERSED AND REMANDED.  IT AFFIRMED THE REFUSAL TO PERMIT A DEDUCTION
UNDER SEC. 23(A), BUT REVERSED THE HOLDING THAT NO AMOUNT COULD BE
ADDED TO THE ASSET VALUE OF THE BUILDING FOR PURPOSES OF DEPRECIATION. 
REJECTING PETITIONER'S ARGUMENT THAT IT SHOULD BE ALLOWED TO AMORTIZE
THE $1,440,000 OVER THE UNEXPIRED TERM OF THE CANCELLED LEASE, IT
ACCEPTED PETITIONER'S ALTERNATIVE ARGUMENT THAT DEPRECIATION OVER THE
REMAINING USEFUL LIFE OF THE BUILDING SHOULD BE ALLOWED.  STATING THAT
"ON THE PRESENT STATE OF THE RECORD WE CANNOT DETERMINE HOW MUCH OF THE
$2,100,000 PURCHASE PRICE IS PROPERLY TO BE ALLOCATED TO THE LAND AND
HOW MUCH TO THE BUILDING," IT REMANDED THE CASE TO THE TAX COURT TO FIX
THE RESPECTIVE VALUES.  221 F.2D 322, 324.  PETITIONER SOUGHT A WRIT OF
CERTIORARI TO REVIEW THE DISALLOWANCE OF ITS CLAIM FOR A DEDUCTION AS A
BUSINESS EXPENSE OR, ALTERNATIVELY, AS AMORTIZATION OVER THE REMAINING
PERIOD OF THE LEASE.  THE GOVERNMENT DID NOT SEEK REVIEW OF THE
ALLOWANCE OF DEPRECIATION OF THAT PORTION OF THE PURCHASE PRICE
ALLOCABLE TO THE BUILDING OVER ITS REMAINING ECONOMIC LIFE.  BECAUSE OF
THE APPARENT CONFLICT BETWEEN THE DECISION OF THE COURT OF APPEALS FOR
THE SECOND CIRCUIT IN THIS CASE AND THE DECISION OF THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT IN CLEVELAND ALLERTON HOTEL, INC. V.
COMMISSIONER OF INTERNAL REVENUE, 166 F.2D 805, WE GRANTED CERTIORARI,
LIMITED TO THE QUESTIONS SET FORTH IN THE MARGIN.  (FN1) 

UNDER THE TERMS OF THE LEASE, PETITIONER HAD A 21-YEAR LEASE ON THE
LAND, WITH AN OPTION TO RENEW, AND SIMILAR RIGHTS IN THE BUILDING WHICH
IT HAD CONSTRUCTED.  PETITIONER INTRODUCED EVIDENCE TO SHOW THAT THE
RENT IT WAS PAYING UNDER THE LEASE WAS GREATLY IN EXCESS OF THE FAIR
RENTAL VALUE OF THE LAND AS VACANT, UNIMPROVED LAND.  PETITIONER
CONTENDS THAT IT ALREADY OWNED THE BUILDING AND THAT THEREFORE THE
PURCHASE AGREEMENT WAS ENTERED INTO FOR THE PURPOSE OF AVOIDING THE
EXCESSIVE RENTALS OF THE LEASE.  THIS TRANSACTION, IT ASSERTS, INVOLVED
A CURRENT BUSINESS EXPENDITURE, AND THE $1,440,000 IN EXCESS OF THE
VACANT LAND VALUE REPRESENTS WHAT IT WAS WILLING TO PAY TO AVOID THIS
ONEROUS LEASE. 

PETITIONER'S CLAIM THAT IT "OWNED" THE BUILDING IS BASED ON A LOOSE
AND MISLEADING USE OF "OWNED."   THE ONLY WAY PETITIONER COULD CONTINUE
TO USE THE BUILDING AFTER TERMINATION OF THE INITIAL PERIOD OF THE
LEASE WAS BY RENEWING THE LEASE, AND THE LEASE ALSO CIRCUMSCRIBED ITS
CONTROL OVER THE BUILDING.  IT COULD MAKE USE OF THE BUILDING FOR THE
REMAINDER OF ITS ECONOMIC LIFE, BUT ONLY ON PAYMENT OF THE STATED
RENT.  PETITIONER'S EVIDENCE WITH RESPECT TO THE RENTAL VALUE OF THE
LAND AS UNIMPROVED IS IRRELEVANT.  IT WAS USING THE LAND AS IMPROVED BY
THE BUILDING; IT WAS PAYING RENT FOR THE LAND AS IMPROVED BY THE
BUILDING.  PETITIONER TENDERED NO EVIDENCE THAT IT WAS PAYING EXCESSIVE
RENT FOR WHAT IT WAS ACTUALLY LEASING.  A COMPLEMENTARY FEATURE OF THE
PURCHASE OF THE LESSOR'S INTERESTS IN THE LAND AND BUILDING WAS THE
ELIMINATION OF THE OBLIGATION TO PAY RENT ON THE IMPROVED LAND.  THE
PURCHASE PRICE PRESUMABLY REFLECTED THIS SITUATION.  WHATEVER POSSIBLE
MERIT PETITIONER'S CONTENTION MIGHT HAVE WERE THERE PROOF OF EXCESSIVE
PURCHASE PRICE CAN AWAIT SUCH A CASE.  THE PURCHASE PRICE PAID BY
PETITIONER REPRESENTS THE COST OF ACQUIRING THE COMPLETE FEE TO THE
LAND AND THE BUILDING, AND NO DEDUCTION AS AN ORDINARY AND NECESSARY
BUSINESS EXPENSE CAN BE TAKEN.  (FN2) 

PETITIONER CLAIMS THAT EVEN IF IT CANNOT GET A DEDUCTION AS AN
ORDINARY AND NECESSARY BUSINESS EXPENSE UNDER SEC. 23(A) OR AS A LOSS
UNDER SEC. 23(F), IT SHOULD BE ALLOWED TO AMORTIZE THE EXCESS OF THE
PAYMENT OF $2,100,000 ABOVE THE DETERMINED LAND VALUE OF $660,000 OVER
THE 21-YEAR REMAINING TERM OF THE EXTINGUISHED LEASE.  WHAT PETITIONER
ACQUIRED IN THIS TRANSACTION, HOWEVER, WERE BOTH RIGHTS WITH RESPECT TO
THE LAND AND RIGHTS WITH RESPECT TO THE BUILDING.  THE TAX COURT HAS
NOT YET FIXED THAT AMOUNT OF THE PURCHASE PRICE WHICH IS ALLOCABLE TO
THE ACQUISITION OF RIGHTS IN THE LAND AND THAT WHICH IS ALLOCABLE TO
THE ACQUISITION OF RIGHTS IN THE BUILDING.  THESE RIGHTS ARE ASSETS
WITH USEFUL LIVES HAVING NO REFERENCE TO THE TERM OF THE LEASE. 
SUCCESSIVE STEPS OF SECURING OR RENEWING A LEASE AND THEN PURCHASING
THE REVERSION SHOULD NOT RESULT IN AMORTIZATION OVER THE TERM OF THE
LEASE WHEN THE PURCHASE OF THE WHOLE FEE AT ONE TIME WOULD RESULT IN
DEPRECIATION OVER THE USEFUL LIFE OF THE ASSET, IF THE ASSET ACQUIRED
WERE A WASTING ASSET. 

UNDER PETITIONER'S CONTENTION, IF THE PURCHASE HAD BEEN CONSUMMATED
IN 1944 BEFORE THE FIRST TERM OF THE LEASE HAD EXPIRED, THE WHOLE
AMOUNT OF THE PURCHASE PRICE NOT ALLOCABLE TO THE LAND WOULD BE
AMORTIZED IN ONE YEAR.  BUT IT SHOULD MAKE NO DIFFERENCE WHETHER THE
LEASE IS ABOUT TO EXPIRE OR HAS JUST BEEN RENEWED.  IN THE ONE CASE,
THE VALUE OF THE REVERSION IS ENHANCED AND THE VALUE OF THE RIGHT TO
RECEIVE THE RENT FIXED BY THE LEASE IS DEPRESSED BECAUSE THE LEASE IS
NEAR AN END.  IN THE OTHER CASE, THE VALUE OF THE REVERSION IS
DEPRESSED AND THE VALUE OF THE RIGHT TO RECEIVE THE FIXED RENT IS
ENHANCED BECAUSE THE LEASE HAS MANY YEARS TO RUN.  BUT ALTHOUGH THERE
MIGHT POSSIBLY BE SOME DIFFERENCE IN BARGAINING POWER BETWEEN THE TWO
SITUATIONS, THE SUM TOTAL OF THE RIGHTS PURCHASED IS THE SAME IN EACH
CASE.  PETITIONER HAS ACQUIRED TWO ASSETS - LAND AND A BUILDING - WHOSE
USE IT WILL HAVE FOR THE REMAINDER OF THEIR USEFUL LIVES, AND
PETITIONER THEREFORE CANNOT AMORTIZE THE COST ALLOCABLE TO THE
ACQUISITION OF THE WASTING ASSET OVER THE TERM OF THE EXTINGUISHED
LEASE. 

ACCORDINGLY, WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT, LEAVING TO THE TAX COURT THE ALLOCATION STILL TO BE
MADE.  AFFIRMED. 

FN1  "1.  WHERE A LESSEE, THE OWNER OF A VALUABLE BUILDING ON LEASED
LAND, ACQUIRES THE FEE TO THE LAND TO BE RELIEVED OF WHAT IT CONSIDERS
TO BE THE BURDENSOME TERMS OF A LEASE, MAY THE LESSEE DEDUCT THE EXCESS
OF THE PAYMENT OVER THE DETERMINED VALUE OF THE LAND AT THE DATE OF
PURCHASE AS AN ORDINARY EXPENSE OF DOING BUSINESS UNDER SEC. 23(A) OF
THE UNITED STATES INTERNAL REVENUE CODE OF 1939 OR UNDER SEC. 23(F) AS
A LOSS ON A TRANSACTION ENTERED INTO FOR PROFIT AND NOT COMPENSATED FOR
BY INSURANCE OR OTHERWISE. 

"2.  IN THE ALTERNATIVE, MAY THE LESSEE-PETITIONER CONSIDER THE
EXCESS PAYMENT OVER THE DETERMINED VALUE OF THE LAND TO BE IN THE
NATURE OF A PREPAYMENT OF RENT FOR THE REMAINING TERM OF THE
EXTINGUISHED LEASE AND AMORTIZE SUCH AMOUNT OVER 21 YEARS?"  350 U.S.
820. 

FN2  PETITIONER ASSERTED, BUT DID NOT ARGUE, THE PERMISSIBILITY OF
THE DEDUCTION OF THE $1,440,000 AS A LOSS UNDER SEC. 23(F).  SUCH AN
ASSERTION IS APPARENTLY PREMISED ON THE ASSUMPTION THAT THE $1,440,000
REPRESENTS THE SUM PAID FOR COMMUTATION OF THE RENT PAYMENTS UNDER AN
ONEROUS LEASE, AND FURTHER DISCUSSION OF THIS ARGUMENT IS UNNECESSARY. 

..END :








GENERAL STORES CORP. V. SHLENSKY 350 U.S. 462 


NO. 170.  ARGUED JANUARY 18, 1956 - DECIDED MARCH 26, 1956 - 222 F.2D
234, AFFIRMED. 


PETITIONER INSTITUTED PROCEEDINGS UNDER CHAPTER XI OF THE BANKRUPTCY
ACT, ALLEGING INABILITY TO PAY ITS DEBTS AS THEY MATURED.  IT HAD BEEN
CONVERTED FROM AN OPERATING COMPANY TO A HOLDING COMPANY WITH THE
SHARES OF THE SUBSIDIARIES PLEDGED TO CREDITORS; AND IT HAD HEAVY SHORT
TERM LOANS.  IT HAD NO PUBLICLY HELD DEBTS, BUT HAD OVER 2,000,000
SHARES OF COMMON STOCK LISTED ON THE AMERICAN STOCK EXCHANGE AND HELD
BY OVER 7,000 SHAREHOLDERS.  A SHAREHOLDER OWNING 3,000 SHARES, AND THE
SECURITIES AND EXCHANGE COMMISSION, MOVED THAT THE PROCEEDINGS BE
DISMISSED UNLESS THE PETITION BE AMENDED TO COMPLY WITH CHAPTER X OF
THE BANKRUPTCY ACT.  HELD:  IN DECIDING THAT PROCEEDINGS UNDER CHAPTER
X RATHER THAN CHAPTER XI WERE APPROPRIATE, THE DISCRETION EXERCISED BY
THE DISTRICT COURT AND THE COURT OF APPEALS DID NOT TRANSCEND ALLOWABLE
BOUNDS, AND THEIR JUDGMENT IS AFFIRMED.  PP. 463-468. 

(A)  IN DETERMINING WHETHER CHAPTER X OR CHAPTER XI AFFORDS THE
APPROPRIATE REMEDY, THE QUESTION IS WHETHER, ON THE FACTS OF THE CASE,
THE FORMULATION OF A PLAN UNDER THE AUSPICES OF DISINTERESTED TRUSTEES,
AS ASSURED BY CHAPTER X AND THE OTHER PROTECTIVE PROVISIONS OF THAT
CHAPTER, WOULD BETTER SERVE THE PUBLIC AND PRIVATE INTERESTS CONCERNED,
INCLUDING THOSE OF THE DEBTOR, THAN THE SIMPLER ARRANGEMENT UNDER
CHAPTER XI.  PP. 465-466. 

(B)  THE ESSENTIAL DIFFERENCE IN THE CHOICE BETWEEN CHAPTER X AND
CHAPTER XI IS NOT BETWEEN THE SMALL COMPANY AND THE LARGE COMPANY NOR
IN THE NATURE OF THE CAPITAL STRUCTURE BUT BETWEEN THE NEEDS TO BE
SERVED.  PP. 466-467. 

(C)  THE RECORD IN THIS CASE SUPPORTS THE VIEW OF THE TWO LOWER
COURTS THAT PETITIONER MAY NEED A MORE PERVASIVE REORGANIZATION THAN IS
POSSIBLE UNDER CHAPTER XI.  PP. 467-468. 

GENERAL STORES CORP. V. SHLENSKY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER INSTITUTED PROCEEDINGS UNDER C. XI OF THE BANKRUPTCY ACT
(52 STAT. 905, AS AMENDED, 11 U.S.C. SEC. 701 ET SEQ.) ALLEGING IT WAS
UNABLE TO PAY ITS DEBTS AS THEY MATURED.  IT PROPOSED AN ARRANGEMENT OF
ITS GENERAL UNSECURED TRADE AND COMMERCIAL DEBTS, NONE OF WHICH IS
EVIDENCED BY ANY PUBLICLY HELD SECURITY.  PETITIONER HAS INDEED NO
DEBTS OF ANY NATURE BY WAY OF BONDS, MORTGAGE CERTIFICATES, NOTES,
DEBENTURES, OR OBLIGATIONS OF LIKE CHARACTER, PUBLICLY HELD.  IT DOES,
HOWEVER, HAVE OVER 2,000,000 SHARES OF $1 PAR VALUE COMMON STOCK LISTED
ON THE AMERICAN STOCK EXCHANGE AND HELD BY OVER 7,000 SHAREHOLDERS. 
ONE OF THESE - AN OWNER OF 3,000 SHARES - AND THE SECURITIES AND
EXCHANGE COMMISSION MOVED THAT THE PROCEEDINGS BE DISMISSED UNLESS,
WITHIN A TIME FIXED BY THE COURT, THE PETITION BE AMENDED TO COMPLY
WITH THE REQUIREMENTS OF C. X OF THE BANKRUPTCY ACT (52 STAT. 883, AS
AMENDED, 11 U.S.C. SEC. 501 ET SEQ.) FOR A CORPORATE REORGANIZATION. 
THE DISTRICT COURT GRANTED THE MOTIONS.  129 F. SUPP. 801.  THE COURT
OF APPEALS AFFIRMED BY A DIVIDED VOTE.  222 F.2D 234.  THE CASE IS HERE
ON CERTIORARI.  350 U.S. 809. 

PETITIONER, FORMERLY KNOWN AS D.A. SCHULTE, INC., HAS OPERATED FOR
SOME YEARS A CHAIN OF STORES FOR THE SALE OF TOBACCO AND ACCESSORY
PRODUCTS.  PETITIONER HAS ALSO HAD A CHAIN OF DIFFICULTIES.  ITS
FINANCIAL PROBLEMS GO BACK AT LEAST TO 1936 WHEN IT FILED A PETITION
FOR REORGANIZATION UNDER FORMER SEC. 77B OF THE BANKRUPTCY ACT.  AFTER
ITS REORGANIZATION WAS COMPLETED IN 1940, IT HAD A FEW YEARS OF
PROSPERITY FOLLOWED BY A POSTWAR DECLINE IN VOLUME OF BUSINESS, A RISE
IN COSTS, AND SUBSTANTIAL LOSSES.  DURING THESE YEARS $600,000 CASH WAS
RAISED BY THE SALE OF STOCK AND NEW MANAGEMENT INSTALLED WITH A VIEW TO
CONVERTING SOME EXISTING STORES INTO CANDY, FOOD, AND DRINK
ESTABLISHMENTS.  THAT IDEA WAS ABANDONED AND THE PROCEEDS OF THE STOCK
SALE WERE USED FOR GENERAL CORPORATE PURPOSES.  IT WAS THEN DECIDED TO
LIQUIDATE THE EXISTING SPECIALTY STORES AND TO HAVE PETITIONER ACQUIRE
THE STOCK OF TWO EXISTING RETAIL DRUGSTORE CHAINS - STINEWAY DRUG
COMPANY AND FORD HOPKINS COMPANY.  THE STINEWAY STOCK WAS ACQUIRED FOR
$1,220,320, PETITIONER BORROWING $870,000 FROM STINEWAY FOR THE
PURPOSE.  LATER PETITIONER BORROWED AN ADDITIONAL $440,000 FROM
STINEWAY TO HELP MAKE THE DOWN PAYMENT ON THE FORD HOPKINS STOCK,
MAKING A TOTAL INDEBTEDNESS TO STINEWAY OF $1,310,000, REPRESENTED BY
TWO NON-INTEREST-BEARING NOTES.  THE FORD HOPKINS STOCK WAS ACQUIRED
FOR $2,800,000, THE DOWN PAYMENT BEING $735,000, THE BALANCE BEING
PAYABLE IN A YEARLY AMOUNT OF $200,000 WITH 4 PER CENT INTEREST AND
SECURED BY THE STINEWAY AND FORD HOPKINS STOCK. 

WHILE THE TWO DRUG CHAINS WERE BEING ACQUIRED, PETITIONER STARTED THE
LIQUIDATION OF ITS OWN STORES, A PROCESS THAT WAS COMPLETED UNDER C. XI
OF THE BANKRUPTCY ACT.  THE DISPOSITION OF THOSE STORES INVOLVED THE
REJECTION OF NUMEROUS LEASES AND THE CREATION OF CLAIMS OF LANDLORDS
AGAINST PETITIONER. 

THE ARRANGEMENT PROPOSED BY PETITIONER UNDER C. XI WOULD EXTEND ITS
UNSECURED OBLIGATIONS AND PROVIDE FOR A 20 PER CENT PAYMENT ON
CONFIRMATION OF THE PLAN AND 20 PER CENT ANNUALLY FOR 4 YEARS
THEREAFTER.  THE CLAIMS LISTED WERE THE $1,310,000 DEBT TO STINEWAY AND
$525,000 UNSECURED CLAIMS, EXCLUSIVE OF CLAIMS BY LANDLORDS.  WE WERE
ADVISED ON ORAL ARGUMENT THAT DURING THE COURSE OF THE C. XI
PROCEEDINGS IT WAS DECIDED THAT THIS OFFER WAS NOT FEASIBLE AND THAT
THE UNSECURED CREDITORS ARE NOW OFFERED THE EQUIVALENT OF 40 PER CENT
OF THEIR CLAIMS IN FULL SATISFACTION. 

MUCH OF THE ARGUMENT HAS BEEN DEVOTED TO THE MEANING OF SECURITIES
AND EXCHANGE COMMISSION V. UNITED STATES REALTY CO., 310 U.S. 434.  IN
THAT CASE WE HELD THAT RELIEF WAS NOT PROPERLY SOUGHT UNDER C. XI BUT
THAT C. X OFFERED THE APPROPRIATE RELIEF.  THAT WAS A CASE OF A DEBTOR
WITH PUBLICLY OWNED DEBENTURES, PUBLICLY OWNED MORTGAGE CERTIFICATES,
AND PUBLICLY OWNED STOCK.  AN ARRANGEMENT WAS PROPOSED THAT WOULD LEAVE
THE DEBENTURES AND STOCK UNAFFECTED AND EXTEND THE CERTIFICATES AND
REDUCE THE INTEREST.  IT WAS ARGUED IN THAT CASE, AS IT HAS BEEN IN THE
INSTANT ONE, THAT C. X AFFORDS THE RELIEF FOR CORPORATIONS WHOSE
SECURITIES ARE PUBLICLY OWNED, WHILE C. XI IS AVAILABLE TO DEBTORS
WHOSE STOCK IS CLOSELY HELD; THAT C. X IS DESIGNED FOR THE LARGE
CORPORATIONS, C. XI FOR THE SMALLER ONES; THAT IT IS THE CHARACTER OF
THE DEBTOR THAT DETERMINES WHETHER C. X OR C. XI AFFORDS THE
APPROPRIATE REMEDY.  WE DID NOT ADOPT THAT DISTINCTION IN THE UNITED
STATES REALTY CASE.  RATHER WE EMPHASIZED THE NEED TO DETERMINE ON THE
FACTS OF THE CASE WHETHER THE FORMULATION OF A PLAN UNDER THE CONTROL
OF THE DEBTOR, AS PROVIDED BY C. XI, OR THE FORMULATION OF A PLAN UNDER
THE AUSPICES OF DISINTERESTED TRUSTEES, AS ASSURED BY C. X AND THE
OTHER PROTECTIVE PROVISIONS OF THAT CHAPTER, WOULD BETTER SERVE "THE
PUBLIC AND PRIVATE INTERESTS CONCERNED INCLUDING THOSE OF THE DEBTOR." 
310 U.S., AT 455.  THE UNITED STATES REALTY CASE PRESENTED A RATHER
SIMPLE PROBLEM.  THERE ONE CLASS OF CREDITORS WAS BEING ASKED TO MAKE
SACRIFICES, WHILE THE POSITION OF THE STOCKHOLDERS REMAINED UNIMPAIRED
(ID., 453-454, 456), CONTRARY TO THE TEACHINGS OF CASE V. LOS ANGELES
LUMBER PRODUCTS CO., 308 U.S. 106.  MOREOVER, THE HISTORY OF THE
COMPANY RAISED A SERIOUS QUESTION "WHETHER ANY FAIR AND EQUITABLE
ARRANGEMENT IN THE BEST INTEREST OF CREDITORS" COULD BE EFFECTED
"WITHOUR SOME RE-ARRANGEMENT OF ITS CAPITAL STRUCTURE."  ID., 456.  FOR
THOSE REASONS C. X WAS HELD TO OFFER THE APPROPRIATE RELIEF. 

THE CHARACTER OF THE DEBTOR IS NOT THE CONTROLLING CONSIDERATION IN A
CHOICE BETWEEN C. X AND C. XI.  NOR IS THE NATURE OF THE CAPITAL
STRUCTURE.  IT MAY WELL BE THAT IN MOST CASES WHERE THE DEBTOR'S
SECURITIES ARE PUBLICLY HELD C. X WILL AFFORD THE MORE APPROPRIATE
REMEDY.  BUT THAT IS NOT NECESSARILY SO.  A LARGE COMPANY WITH PUBLICLY
HELD SECURITIES MAY HAVE AS MUCH NEED FOR A SIMPLE COMPOSITION OF
UNSECURED DEBTS AS A SMALLER COMPANY.  AND THERE IS NO REASON WE CAN
SEE WHY C. XI MAY NOT SERVE THAT END.  THE ESSENTIAL DIFFERENCE IS NOT
BETWEEN THE SMALL COMPANY AND THE LARGE COMPANY BUT BETWEEN THE NEEDS
TO BE SERVED. 

READJUSTMENT OF ALL OR A PART OF THE DEBTS OF AN INSOLVENT COMPANY
WITHOUT SACRIFICE BY THE STOCKHOLDERS MAY VIOLATE THE FUNDAMENTAL
PRINCIPLE OF A FAIR AND EQUITABLE PLAN (SEE CASE V. LOS ANGELES LUMBER
PRODUCTS CO., SUPRA), AS THE UNITED STATES REALTY CO. CASE EMPHASIZES. 

READJUSTMENT OF THE DEBT STRUCTURE OF A COMPANY, WITHOUT MORE, MAY BE
INADEQUATE UNLESS THERE IS ALSO AN ACCOUNTING BY THE MANAGEMENT FOR
MISDEEDS WHICH CAUSED THE DEBACLE. 

READJUSTMENT OF THE DEBTS MAY BE A MINOR PROBLEM COMPARED WITH THE
NEED FOR NEW MANAGEMENT.  WITHOUT A NEW MANAGEMENT TODAY'S READJUSTMENT
MAY BE A TEMPORARY MORATORIUM BEFORE A MAJOR COLLAPSE. 

THESE ARE TYPICAL INSTANCES WHERE C. X AFFORDS A MORE ADEQUATE REMEDY
THAN C. XI.  THE APPOINTMENT OF A DISINTERESTED TRUSTEE (SEC. 156), HIS
BROAD POWERS OF INVESTIGATION (SEC. 167), THE ROLE OF THE TRUSTEE IN
PREPARING A PLAN (SEC. 169), THE DUTY OF THE SECURITIES AND EXCHANGE
COMMISSION TO RENDER AN ADVISORY REPORT ON THE PLAN (SEC. 172), THE
REQUIREMENT THAT THE PLAN BE "FAIR AND EQUITABLE, AND FEASIBLE" (SECS.
174, 221), THE POWER TO INCLUDE THE SUBSIDIARIES, STINEWAY AND FORD
HOPKINS, IN THE REORGANIZATION OF PETITIONER (SEC. 129) - THESE ARE
CONTROLS WHICH C. X GIVES TO THE ENTIRE COMMUNITY OF INTERESTS IN THE
COMPANY BEING REORGANIZED AND WHICH ARE LACKING UNDER C. XI.  THESE
CONTROLS ARE ESSENTIAL BOTH WHERE A COMPLICATED DEBT STRUCTURE MUST BE
READJUSTED AND WHERE A SOUND DISCRETION INDICATES EITHER THAT THERE
MUST BE AN ACCOUNTING FROM THE MANAGEMENT OR THAT A NEW MANAGEMENT IS
NECESSARY.  THOSE CONDITIONS ONLY ILLUSTRATE THE NEED FOR C. X. THERE
MAY BE OTHERS EQUALLY COMPELLING. 

THE HISTORY OF THIS DEBTOR INDICATES NOT FRAUD BUT EITHER AN
IMPROVIDENT OVEREXTENSION OR A BUSINESS THAT HAS BEEN OUT OF STEP WITH
MODERN TRENDS.  ONE CORPORATE REORGANIZATION HAS ALREADY BEEN
SUFFERED.  HEAVY SHORT-TERM LOANS HANG OMINOUSLY OVER THE COMPANY; AND
IT HAS BEEN CONVERTED FROM AN OPERATING COMPANY TO A HOLDING COMPANY
WITH THE SHARES OF THE SUBSIDIARIES PLEDGED TO CREDITORS.  IT IS ARGUED
THAT ONLY A SHORT MORATORIUM IS NEEDED.  THERE ARE, HOWEVER, FEARS THAT
A SHORT MORATORIUM MAY BE MERELY A PRELUDE TO NEW DISASTERS, THAT WHAT
THE COMPANY NEEDS IS A FUNDAMENTAL REORGANIZATION OF ITS CAPITAL
STRUCTURE, SO THAT ITS LIMITED CASH RESOURCES WILL NOT BE DISSIPATED IN
AN EFFORT TO MEET THE DEMANDS FOR DEBT REDUCTION.  A QUESTION AS TO
WHAT IS "FAIR AND EQUITABLE" BETWEEN CREDITORS AND STOCKHOLDERS MAY
EVENTUALLY BE REACHED IN THE REORGANIZATION.  BUT THE PARAMOUNT ISSUE
AT PRESENT CONCERNS WHAT IS "FEASIBLE."  A "FEASIBLE" PLAN WITHIN THE
MEANING OF C. X, SECS. 174, 221, MIGHT MEAN, FIRST, A MERGER OF THE
SUBSIDIARIES WITH THE HOLDING COMPANY, AND, SECOND, A FUNDING OF THE
UNSECURED DEBT AND A REALIGNMENT OF DEBT AND STOCK SO AS TO GIVE A
BALANCED CAPITAL STRUCTURE.  THE OLD BUSINESS HAS BEEN LIQUIDATED AND
THE NEW ONE LAUNCHED WITH HEAVY BORROWINGS ON A SHORT-TERM BASIS.  IF A
NEW ONE IS TO SUCCEED, IT MAY WELL NEED A MORE THOROUGHGOING CAPITAL
READJUSTMENT THAN IS POSSIBLE UNDER C. XI.  THAT WAS THE VIEW OF TWO
LOWER COURTS.  WE COULD REVERSE THEM ONLY IF THEIR EXERCISE OF
DISCRETION TRANSCENDED THE ALLOWABLE BOUNDS.  WE CANNOT SAY THAT IT
DOES.  RATHER WE THINK THAT THE LOWER COURTS TOOK A FAIR READING OF C.
X AND THE FUNCTIONS IT SERVES AND REASONABLY CONCLUDED THAT THIS
BUSINESS NEEDED A MORE PERVASIVE REORGANIZATION THAN IS AVAILABLE UNDER
C. XI.  AFFIRMED. 

MR. JUSTUCE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

THIS IS A PROCEEDING FOR CONFIRMATION OF AN ARRANGEMENT UNDER CHAPTER
XI OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 701 ET SEQ. THE CONTROLLING
FACTS ARE THESE.  PETITIONER IS A CORPORATION WITH A SIMPLE CAPITAL
STRUCTURE, WITH ITS COMMON STOCK, WHICH IS TRADED ON THE AMERICAN STOCK
EXCHANGE, HELD IN THE HANDS OF 7,000 STOCKHOLDERS.  THE PROPOSED
ARRANGEMENT EXCLUSIVELY AFFECTS THE UNSECURED CREDITORS, INCLUDING WAGE
EARNERS WHOM THE BANKRUPTCY ACT ACCORDS PRIORITY OF PAYMENT.  ALL THESE
CREDITORS STRONGLY SUPPORT CONFIRMATION OF THE ARRANGEMENT.  THE
SECURITIES AND EXCHANGE COMMISSION, IN ITS CAPACITY OF PROTECTOR OF
PUBLIC INVESTORS, OPPOSED THE RESORT TO CHAPTER XI AND INSISTED ON THE
REORGANIZATION PROCEDURE DEFINED BY CHAPTER X. THE STOCKHOLDERS
THEMSELVES HAVE NOT OPPOSED THE ARRANGEMENT, BARRING ONLY A SINGLE
STOCKHOLDER REPRESENTING TWO-TENTHS OF ONE PERCENT OF THE COMMON STOCK
OF THE DEBTOR.  THERE IS NO SUGGESTION OF FRAUD OR OTHER IMPROPER
BEHAVIOR ON THE PART OF THE MANAGEMENT OF THE DEBTOR, WHICH HAS
SUFFERED BUSINESS MISADVENTURE APPARENTLY ATTRIBUTABLE TO CHANGES IN
CONSUMER RESPONSE TO THE TYPE OF BUSINESS CONDUCTED BY THE ORIGINAL
SCHULTE TOBACCO STORES.  THE DISTRICT COURT DISMISSED THE PETITION
UNDER CHAPTER XI, WITH LEAVE TO THE DEBTOR TO MEET THE REQUIREMENTS OF
REORGANIZATION UNDER CHAPTER X.*  129 F. SUPP. 801.  A DIVIDED COURT OF
APPEALS SUSTAINED THE DISTRICT COURT, 222 F.2D 234, AND ITS JUDGMENT IS
HERE AFFIRMED. 

*AT THE TIME OF THE REALTY DECISION, IF A PROCEEDING WAS FOUND TO
HAVE BEEN IMPROPERLY BROUGHT UNDER CHAPTER XI, IT HAD TO BE DISMISSED
AND A PROCEEDING STARTED ANEW UNDER CHAPTER X. SECTION 30 OF THE ACT OF
JULY 7, 1952, AMENDED THE LAW SO AS TO ALLOW A TRANSFER OF A CHAPTER XI
PROCEEDING, IF IMPROPERLY FILED THEREUNDER, TO CHAPTER X. 66 STAT. 420,
432, AND SEE H.R. REP. NO. 2320, 82D CONG., 2D SESS. 19. 

THE ESSENCE OF THIS COURT'S DECISION IS THAT THE DISTRICT COURT ACTED
AS IT DID IN THE EXERCISE OF ALLOWABLE DISCRETION.  BUT IF THE EXERCISE
OF DISCRETION BY THE DISTRICT COURT WAS GUIDED BY INAPPROPRIATE
STANDARDS, ITS EXERCISE OF DISCRETION IS LEFT WITHOUT A SUPPORTING
BASIS AND CANNOT STAND.  SUCH, I BELIEVE, IS THE SITUATION HERE. 

THE DISTRICT COURT WAS SET ON ITS COURSE BY WHAT IT DEEMED THE
GUIDING RULING OF THIS COURT IN SECURITIES AND EXCHANGE COMMISSION V.
UNITED STATES REALTY & IMPROVEMENT CO., 310 U.S. 434.  BUT THE USUALLY
CAREFUL DISTRICT JUDGE MISCONCEIVED THE DEMANDS OF THAT CASE UPON HIM
BY RELYING ON SOME GENERAL OBSERVATION WITHOUT THE QUALIFYING
ILLUMINATION OF THE LITERARY AND FACTUAL CONTEXT OF WHAT HE QUOTED FROM
THE OPINION IN THAT CASE.  THE DISTRICT COURT FOUND GUIDANCE IN THE
STATEMENT THAT "THE TWO CHAPTERS (X AND XI) WERE SPECIFICALLY DEVISED
TO AFFORD DIFFERENT PROCEDURES, THE ONE ADAPTED TO THE REORGANIZATION
OF CORPORATIONS WITH COMPLICATED DEBT STRUCTURES AND MANY STOCKHOLDERS,
THE OTHER TO COMPOSITION OF DEBTS OF SMALL INDIVIDUAL BUSINESS AND
CORPORATIONS WITH FEW STOCKHOLDERS  ...  ."  310 U.S. 434, 447.    IN
THE FIRST PLACE, HIS QUOTATION BREAKS INTO A SENTENCE, WHICH PLAINLY
ENOUGH INDICATED THAT WHAT THE DISTRICT JUDGE QUOTED WAS NOT THE RATIO
DECIDENDI OF THE REALTY CASE BUT A LOOSE GENERALITY.  THE DISTRICT
JUDGE LEFT UNQUOTED THE QUALIFYING INTRODUCTION, "WHILE WE DO NOT DOUBT
THAT IN GENERAL," WITH THE FURTHER CAUTIONARY PHRASE, "AS WILL
PRESENTLY APPEAR MORE IN DETAIL  ...  ."  THE LATER DETAILS DERIVE
SIGNIFICANCE FROM THE WHOLLY DIFFERENT SET OF FACTS IN THE REALTY
CASE.  IN THAT CASE THE ARRANGEMENT FOR WHICH SHELTER WAS SOUGHT UNDER
CHAPTER XI INVOLVED CHANGES AFFECTING SECURITY HOLDERS, AND THOSE
CHANGES, THE COURT FOUND, EASILY MIGHT ADVERSELY AFFECT THE CREDITORS. 
THIS PRECLUDED A FINDING THAT THE ARRANGEMENT WAS "FOR THE BEST
INTERESTS OF THE CREDITORS," WHICH IS AN ESSENTIAL REQUISITE FOR
CONFIRMATION.  THE COURT WAS VERY CAREFUL TO SAY THAT THE APPLICATION
IT GAVE TO CHAPTER XI IN THE REALTY CASE "DOES NOT MEAN THAT THERE IS
NO SCOPE FOR APPLICATION OF THAT CHAPTER IN MANY CASES WHERE THE
DEBTOR'S FINANCIAL BUSINESS AND CORPORATE STRUCTURE DIFFER FROM
RESPONDENT'S."  310 U.S., AT 454. 

AGAIN, WHILE WHAT WAS QUOTED FROM THE REALTY CASE BY THE DISTRICT
JUDGE SEEMED TO INDICATE A SHARP LINE BETWEEN CORPORATIONS "WITH MANY
STOCKHOLDERS" AND CORPORATIONS "WITH FEW STOCKHOLDERS," ASSIGNING
CHAPTER X TO THE FORMER AND RESTRICTING CHAPTER XI TO THE LATTER, THE
OPINION IN THE REALTY CASE WENT ON TO SAY (WHAT WAS NOT QUOTED BELOW),
"WE FIND IN NEITHER CHAPTER ANY DEFINITION OR CLASSIFICATION WHICH
WOULD ENABLE US TO SAY THAT A CORPORATION IS SMALL OR LARGE, ITS
SECURITY HOLDERS FEW OR MANY, OR THAT ITS SECURITIES ARE 'HELD BY THE
PUBLIC,' SO AS TO PLACE THE CORPORATION EXCLUSIVELY WITHIN THE
JURISDICTION OF THE COURT UNDER ONE CHAPTER RATHER THAN THE OTHER." 
310 U.S., AT 447. 

THE UPSHOT OF THE MATTER IS THAT A CRITICAL READING OF THE EXTENDED
OPINION IN THE REALTY CASE REQUIRES THE CONCLUSION THAT ALL ITS GENERAL
OBSERVATIONS MUST BE LIMITED TO THE PARTICULAR SITUATION WHICH ELICITED
THEM.  AND YET, THE CONTROLLING CONSIDERATION IN THE DISTRICT COURT'S
DISMISSAL OF THE CHAPTER XI PROCEEDING IS FAIRLY ATTRIBUTABLE TO THE
FACT THAT THE PLAN OF ARRANGEMENT CONCERNED "A CORPORATION WITH 7,000
HOLDERS OF TWO AND A QUARTER MILLION SHARES OF STOCK LISTED ON THE
AMERICAN STOCK EXCHANGE AND RECENTLY SELLING AT UNDER TWO DOLLARS A
SHARE."  129 F. SUPP. 801, 805.  SUCH A BASIS FOR JUDGMENT DISREGARDS
THE INFORMAL, EFFICIENT, AND ECONOMICAL PROCEDURE FOR FINANCIAL
READJUSTMENTS OF A CORPORATION WITH ITS CREDITORS WHERE NO CHANGE IN
THE CAPITAL STRUCTURE IS INVOLVED, WHERE NO CHARGE OF IMPROPRIETY IN
CORPORATE MANAGEMENT IS INTIMATED, WHERE ALL THE CREDITORS URGE THAT
THE PROPOSED ARRANGEMENT IS FOR THEIR "BEST INTERESTS" (SEC. 366 OF THE
CHANDLER ACT, 52 STAT. 840, 911), AND WHERE A REFUSAL TO ENTERTAIN THE
ARRANGEMENT WOULD WORK REAL HARDSHIP TO 174 WAGE CLAIMANTS. 

NOT ONLY WAS THE DISTRICT COURT'S EXERCISE OF DISCRETION AGAINST
ENTERTAINMENT OF THE CHAPTER XI PROCEEDING BASED ON A MISCONCEPTION OF
THE HOLDING IN THE REALTY CASE.  IT WAS ALSO IN DISREGARD OF THE
AMENDMENT TO CHAPTER XI BY SEC. 35 OF THE ACT OF JULY 7, 1952, 66 STAT.
420, 433.  BY THAT AMENDMENT CONGRESS ELIMINATED THE REQUIREMENT THAT A
PLAN OF ARRANGEMENT HAD TO BE "FAIR AND EQUITABLE."  THAT REQUIREMENT
WAS IN CHAPTER XI, AS IT STOOD AT THE TIME OF THE REALTY DECISION, AND
BY IT CONGRESS HAD WRITTEN INTO CHAPTER XI THE ABSOLUTE RULE FOR EQUITY
REORGANIZATIONS LAID DOWN BY THIS COURT IN NORTHERN PACIFIC R. CO. V.
BOYD, 228 U.S. 482, AND CASE V. LOS ANGELES LUMBER PRODUCTS CO., 308
U.S. 106.  (H.R. REP.  NO. 2320, 82D CONG., 2D SESS. 21.)  EVEN IF THE
"FAIR AND EQUITABLE" RULE WERE STILL IN CHAPTER XI, THERE IS NOTHING IN
THE FACTS OF THIS CASE TO SHOW THAT THE ARRANGEMENT WOULD NOT SATISFY
THAT REQUIREMENT, FOR WE HAVE NOTED THAT THE PLAN OF ARRANGEMENT HERE,
UNLIKE THE SITUATION IN REALTY, LEAVES UNTOUCHED THE POSITION OF THE
SECURITY HOLDERS.  SINCE THE REALTY DECISION TO NO SMALL DEGREE TURNED
ON THE ENFORCEMENT OF THE "FAIR AND EQUITABLE" RULE, IT IS NOTEWORTHY
THAT NO CONSIDERATION WAS GIVEN BY THE LOWER COURTS, AND NONE IS GIVEN
BY THIS COURT, TO THE SIGNIFICANCE OF THIS AMENDMENT BY CONGRESS.  ONE
WOULD SUPPOSE THAT THE ELIMINATION, IN 1952, OF THIS DRASTIC
REQUIREMENT IS THE CLEAREST POSSIBLE INDICATION THAT CHAPTER XI SHOULD
BE GIVEN A MORE GENEROUS SCOPE THAN EVEN THE NARROWEST READING OF
REALTY MIGHT SUGGEST.  CHAPTER XI SHOULD NOT BE SHIRIVELED IN ITS
AVAILABILITY. 

I WOULD REVERSE THE COURT OF APPEALS. 
..END :












MITCHELL V. BUDD 350 U.S. 473 


NO. 278.  ARGUED FEBRUARY 29-MARCH 1, 1956 - DECIDED MARCH 26, 1956 -
221 F.2D 406, REVERSED.  - 114 F. SUPP. 865, AFFIRMED. 


THE SECRETARY OF LABOR SUED UNDER SEC. 17 OF THE FAIR LABOR STANDARDS
ACT TO ENJOIN RESPONDENTS FROM VIOLATING THE MINIMUM WAGE AND RECORD
KEEPING PROVISIONS OF THE ACT WITH RESPECT TO EMPLOYEES WORKING IN
THEIR TOBACCO-BULKING PLANTS IN QUINCY, FLORIDA, WHICH HAS A POPULATION
IN EXCESS OF 2,500.  THE BULKING PROCESS TAKES FROM 4 TO 8 MONTHS,
REQUIRES A LARGE AMOUNT OF EQUIPMENT, AND SUBSTANTIALLY CHANGES THE
PHYSICAL PROPERTIES AND CHEMICAL CONTENT OF THE TOBACCO.  MOST FARMERS
IN THE REGION HAVE THEIR TOBACCO PROCESSED BY OTHERS.  TWO OF THE
RESPONDENTS PROCESS ONLY TOBACCO GROWN ON THEIR OWN FARMS AND THE THIRD
PROCESSES ONLY TOBACCO GROWN BY OTHERS.  HELD:  RESPONDENTS ARE NOT
EXEMPTED BY SEC. 13(A)(10) OR SEC. 13(A)(6) FROM THE MINIMUM WAGE AND
RECORD-KEEPING PROVISION OF THE ACT.  PP. 474-482. 

(A)  THE ADMINISTRATOR'S DEFINITION OF "AREA OF PRODUCTION," WITHIN
THE MEANING OF SEC. 13(A)(10), AS INCLUDING ONLY PLANTS LOCATED "IN THE
OPEN COUNTRY OR IN A RURAL COMMUNITY  ...  NOT INCLUDING ANY CITY, TOWN
OR URBAN PLACE OF 2,500 OR GREATER POPULATION" AND WITHIN A SPECIFIED
MILEAGE DISTANCE FROM THE SOURCE OF 95% OF ITS COMMODITIES, IS
SUSTAINED.  PP. 476-480. 

(B)  EVEN WHEN DONE BY THE GROWER, THE BULKING PROCESS IS NOT
"PREPARATION FOR MARKET," WITHIN THE MEANING OF SEC. 3(F), AND THERFORE
NOT WITHIN THE AGRICULTURAL EXEMPTION OF SEC. 13(A)(6).  PP. 480-482. 

MITCHELL, SECRETARY OF LABOR, V. BUDD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE ARE ACTIONS BROUGHT BY THE SECRETARY OF LABOR UNDER SEC. 17 OF
THE FAIR LABOR STANDARDS ACT, 52 STAT. 1060, 63 STAT. 910, 29 U.S.C.
SEC. 201, TO ENJOIN RESPONDENTS FROM VIOLATING THE MINIMUM WAGE, SEC.
6, AND RECORD-KEEPING PROVISIONS, SEC. 11, OF THE ACT.  THE EMPLOYEES
CONCERNED WORK IN TOBACCO-BULKING PLANTS OPERATED BY RESPONDENTS IN
QUINCY, FLORIDA, WHICH HAS A POPULATION IN EXCESS OF 2,500. 
RESPONDENTS CLAIM THESE EMPLOYEES ARE EXEMPT FROM THE ACT.  THE
DISTRICT COURT RULED AGAINST THE RESPONDENTS.  114 F. SUPP. 865.  THE
COURT OF APPEALS REVERSED.  221 F.2D 406.  WE GRANTED CERTIORARI, 350
U.S. 859, BECAUSE OF THE IMPORTANCE OF THE PROBLEMS PRESENTED AND OF
THE APPARENT CONFLICTS BETWEEN THE DECISION BELOW AND TOBIN V. TRADERS
COMPRESS CO., 199 F.2D 8, AND MANEJA V. WAIALUA AGRICULTURAL CO., 349
U.S. 254. 

THE PROCESSING OPERATIONS INVOLVE U.S. TYPE 62 SUMATRA TOBACCO, A
LEAF TOBACCO USED EXCLUSIVELY FOR CIGAR WRAPPERS.  THIS TYPE OF TOBACCO
REQUIRES SPECIAL CULTIVATION.  IT IS GROWN IN FIELDS THAT ARE
COMPLETELY ENCLOSED AND COVERED WITH CHEESECLOTH SHADE.  THE LEAVES OF
THE PLANT ARE PICKED IN STAGES, AS EACH MATURES.  THE LEAVES ARE TAKEN
IMMEDIATELY TO A TOBACCO BARN, LOCATED ON THE FARM, WHERE THEY ARE
STRUNG ON STICKS AND DRIED BY HEAT.  BEFORE THE DRYING PROCESS IS
COMPLETED, THE LEAVES ARE ALLOWED TO ABSORB MOISTURE.  THEN THEY ARE
DRIED AGAIN.  THERE IS SOME FERMENTATION AT THIS STAGE.  BUT THE
TREATMENT IN THE TOBACCO BARNS IS ESSENTIALLY A DRYING OPERATION DURING
WHICH THE MOISTURE CONTENT IS REDUCED TO BETWEEN 10% AND 25%. 

AT THE END OF THE DRYING OPERATION, THE LEAVES ARE PACKED IN BOXES
AND TAKEN FROM THE FARM TO A BULKING PLANT FOR FURTHER PROCESSING.  AT
THE BULKING PLANT, THE LEAVES ARE PLACED IN PILES, KNOWN AS "BULKS,"
AGGREGATING FROM 3,500 TO 4,500 POUNDS OF TOBACCO.  THIS IS THE
"SWEATING" OR FERMENTATION PROCESS, WHICH REQUIRES CAREFULLY CONTROLLED
REGULATION OF TEMPERATURE AND HUMIDITY.  PROPER HEAT CONTROL INCLUDES,
AMONG OTHER THINGS, BREAKING UP THE BULK, REDISTRIBUTING THE TOBACCO,
AND ADDING WATER.  PROPER FERMENTATION OR AGING REQUIRES THE BULK TO BE
RECONSTRUCTED SEVERAL TIMES.   THE BULKING PROCESS LASTS FROM FOUR TO
EIGHT MONTHS, AFTER WHICH THE TOBACCO IS BALED.  THE BULKING PROCESS
REQUIRES A LARGE AMOUNT OF EQUIPMENT, INCLUDING A STEAM-HEATED PLANT,
PLATFORMS, THERMOMETERS, BULK COVERS, BALING BOXES AND PRESSES, BALING
MATS AND PACKING, SORTING AND GRADING TABLES.  THE BULKING PROCESS
SUBSTANTIALLY CHANGES THE PHYSICAL PROPERTIES AND CHEMICAL CONTENT OF
THE TOBACCO, IMPROVING THE COLOR, INCREASING COMBUSTIBILITY, AND
ELIMINATING THE RAWNESS AND HARSHNESS OF THE FRESHLY CURED LEAF. 

THE OVERWHELMING MAJORITY OF FARMERS IN THE REGION IN LITIGATION IN
THIS CASE HAVE THEIR TOBACCO PROCESSED BY OTHERS.  IN THAT REGION THERE
ARE 300 FARMERS WHO GROW THIS TYPE OF TOBACCO.  OF THESE, ONLY 9
MAINTAIN AND OPERATE BULKING PLANTS; AND ONLY 5 MAINTAIN AND OPERATE
BULKING PLANTS PROCESSING TOBACCO GROWN ONLY BY THEMSELVES.  IT APPEARS
THAT BULKING CANNOT BE ECONOMICALLY DONE BY THE ORDINARY SMALL FARMER
GROWING LESS THAN 100 ACRES.  OF THE 300 FARMERS IN THE PRESENT GROUP,
80% GROW LESS THAN 25 ACRES PER YEAR, WHILE THE MAJORITY GROW FROM 1
1/2 TO 10 ACRES A YEAR. 

RESPONDENT BUDD GROWS NO TOBACCO ITSELF AND CONFINES ITS OPERATIONS
TO PROCESSING THE TOBACCO GROWN ON 263 ACRES BY 52 FARMERS.  BUDD
EMPLOYS ABOUT 108 WORKERS FOR BULKING, SORTING, GRADING, AND BALING
TOBACCO. 

RESPONDENT KING EDWARD PROCESSES IN THE BULKING PLANT INVOLVED IN
THIS LITIGATION ONLY TOBACCO PRODUCED ON FARMS OPERATED BY IT.  (IT HAS
TWO OTHER BULKING PLANTS THAT PROCESS TOBACCO PURCHASED FROM OTHER
GROWERS.)  THE BULKING PLANT INVOLVED HERE IS ABOUT 13 MILES FROM KING
EDWARD'S FARMS.  A MAJORITY OF THE 120 EMPLOYEES IN THE BULKING PLANT
ALSO WORK ON KING EDWARD'S FARMS. 

MAY HAS ITS OWN BULKING PLANT AND PROCESSES THERE ONLY THE TOBACCO
WHICH IT GROWS ON ITS OWN FARMS.  THIS PLANT IS ABOUT 10 MILES FROM THE
FARMS.  THE EMPLOYEES, WHO WORK THE FARMS, WORK IN THE BULKING PLANT,
BEING TRANSPORTED BACK AND FORTH BY MAY.  SEVENTY ARE EMPLOYED IN THE
BULKING PLANT. 

AREA OF PRODUCTION.  - SECTION 13(A) OF THE ACT CREATES SEVERAL
EXEMPTIONS FROM THE MINIMUM WAGE AND MAXIMUM HOURS PROVISIONS OF THE
ACT.  ONE OF THOSE EXEMPTIONS CONTAINED IN SEC. 13(A)(10) INCLUDES: 

"ANY INDIVIDUAL EMPLOYED WITHIN THE AREA OF PRODUCTION (AS DEFINED BY
THE ADMINISTRATOR), ENGAGED IN HANDLING, PACKING, STORING, GINNING,
COMPRESSING, PASTEURIZING, DRYING, PREPARING IN THEIR RAW OR NATURAL
STATE, OR CANNING OF AGRICULTURAL OR HORTICULTURAL COMMODITIES FOR
MARKET, OR IN MAKING CHEESE OR BUTTER OR OTHER DAIRY PRODUCTS." 

THE ADMINISTRATOR'S DEFINITION OF "AREA OF PRODUCTION" PROVIDES THAT
A PLANT IS WITHIN THE "AREA OF PRODUCTION" IF IT IS LOCATED (1) "IN THE
OPEN COUNTRY OR IN A RURAL COMMUNITY," WHICH IS DEFINED AS NOT
INCLUDING "ANY CITY, TOWN OR URBAN PLACE OF 2,500 OR GREATER
POPULATION," AND (2) WITHIN A SPECIFIED MILEAGE DISTANCE FROM THE
SOURCE OF 95% OF ITS COMMODITIES.  (FN1) 

THE COURT OF APPEALS, FOLLOWING ITS EARLIER DECISIONS IN JENKINS V.
DURKIN, 208 F.2D 941, AND LOVVORN V. MILLER, 215 F.2D 601, HELD THAT
THE REGULATION WAS INVALID.  IT CONCLUDED THAT ONCE "GEOGRAPHIC LINES
OF THE AREA OF PRODUCTION HAVE BEEN ESTABLISHED, THE ACT MAKES THE
EXEMPTION EFFECTIVE WITHIN THAT AREA," AND THAT ANY QUALIFICATION BY
REASON OF SIZE OF THE TOWN WHERE THE ESTABLISHMENT IS LOCATED IS
INVALID.  215 F.2D, AT 603.  FOR THAT CONCLUSION THE COURT OF APPEALS
FOUND COMFORT IN ADDISON V. HOLLY HILL FRUIT PRODUCTS, INC., 322 U.S.
607. 

HOLLY HILL INVOLVED ONE OF THE ALTERNATIVE DEFINITIONS OF "AREA OF
PRODUCTION."  THAT ALTERNATIVE DEFINED "AREA OF PRODUCTION" IN
GEOGRAPHIC TERMS AND THEN ADDED ANOTHER STANDARD - WHETHER THE EMPLOYEE
WAS IN AN ESTABLISHMENT HAVING NO MORE THAN SEVEN EMPLOYEES.  WE HELD
THAT "  ...  CONGRESS DID NOT LEAVE IT TO THE ADMINISTRATOR TO DECIDE
WHETHER WITHIN GEOGRAPHIC BOUNDS DEFINED BY HIM THE ACT FURTHER PERMITS
DISCRIMINATION BETWEEN ESTABLISHMENT AND ESTABLISHMENT BASED UPON THE
NUMBER OF EMPLOYEES."  ID., AT 616.  WE SAID THAT THE PHRASE "AREA OF
PRODUCTION" HAD "PLAIN GEOGRAPHIC IMPLICATIONS" WITH WHICH THE SIZE OF
A PLANT WITHIN THE AREA WAS NOT CONSISTENT.  ID., AT 618.  THAT
DEFINITION, THERFORE, WAS STRUCK DOWN.  BUT ITS ALTERNATIVE,
SUBSTANTIALLY THE ONE THAT IS INVOLVED HERE, WAS NOT PASSED UPON.  IN
FACT, WE RESERVED DECISION IN HOLLY HILL AS TO WHETHER THE POPULATION
CRITERION, NOW PRESENTED FOR DECISION, WAS VALID.  ID., 610. 

WE THINK THE PRESENT REGULATION IS A VALID DEFINITION OF "AREA OF
PRODUCTION."  WE THINK IT VALID BY THE STANDARD WE USED IN HOLLY HILL. 
IN THAT CASE WE SAID THAT "  ...  'AREA' CALLS FOR DELIMITATION OF
TERRITORY IN RELATION TO THE COMPLICATED ECONOMIC FACTORS THAT OPERATE
BETWEEN AGRICULTURAL LABOR CONDITIONS AND THE LABOR MARKET OF
ENTERPRISES CONCERNED WITH AGRICULTURAL COMMODITIES AND MORE OR LESS
NEAR THEIR PRODUCTION."  ID., AT 613-614.  THE AIM OF CONGRESS WAS TO
EXEMPT EMPLOYEES "EMPLOYED IN AGRICULTURE," SEC. 13(A)(6), AND THOSE
ENGAGED IN AGRICULTURAL ENTERPRISES IN THE "AREA OF PRODUCTION," SEC.
13(A)(10).  THAT MEANT DRAWING A LINE BETWEEN AGRICULTURAL ENTERPRISES
OPERATING UNDER RURAL-AGRICULTURAL CONDITIONS AND THOSE SUBJECT TO
URBAN-INDUSTRIAL CONDITIONS.  AN INDIVIDUAL WORKING IN AN AGRICULTURAL
PACKING PLANT ON THE EDGE OF LOS ANGELES IS IN A STRIKINGLY DIFFERENT
ENVIRONMENT FROM ONE DOING THE SAME WORK IN A SMALL TOWN IN THE HEART
OF KANSAS.  NEARNESS TO A LARGE CITY HAS RELATION TO THE PROBLEM OF THE
ADMINISTRATOR IN MAKING HIS DEFINITION.  FOR THE PROXIMITY OF THE PLANT
TO A METROPOLITAN CENTER, LIKE THE SIZE OF THE TOWN WHERE THE PLANT IS
LOCATED, MAY MAKE THE DECISIVE DIFFERENCE BETWEEN AN AGRICULTURAL AND
AN URBAN ENVIRONMENT.  (FN2)  LIKEWISE, NEARNESS OF THE PLANT TO ITS
SUPPLIES CANNOT BE CONSIDERED AN IRRELEVANCY.  FOR "AREA" IS
UNDERSTANDABLE IN TERMS OF NEARNESS AND FARNESS.  DISTANCE IS AN
IMPORTANT FACTOR IN ANY FORMULA WHICH SEEKS TO TREAT MORE OR LESS AS A
UNITY LABOR ON FARMS AND LABOR IN AGRICULTURAL ENTERPRISES IN THE "AREA
OF PRODUCTION."  (FN3) 

NO DEFINITION OF "AREA OF PRODUCTION" COULD PRODUCE COMPLETE
EQUALITY, FOR THE VARIABLES ARE TOO NUMEROUS.  THE ADMINISTRATOR
FULFILLS HIS ROLE WHEN HE MADES A REASONED DEFINITION.  SEE GRAY V.
POWELL, 314 U.S. 402, 411.  ON NO PHASE OF THIS PROBLEM CAN WE SAY THAT
THE ADMINISTRATOR PROCEEDED CAPRICIOUSLY OR BY THE USE OF INADMISSIBLE
STANDARDS.  EXPERTS MIGHT DISAGREE OVER THE DESIRABILITY OF ONE FORMULA
RATHER THAN ANOTHER.  IT IS ENOUGH FOR US THAT THE EXPERT STAYED WITHIN
THE ALLOWABLE LIMITS.  WE THINK HE DID HERE AND THAT THE DEFINITION OF
"AREA OF PRODUCTION" UNDER SEC. 13(A)(10) IS A VALID ONE. 

AGRICULTURE.  - THE COURT OF APPEALS HELD THAT THE EMPLOYEES IN THE
BULKING PLANTS OF KING EDWARD AND MAY WERE EXEMPT UNDER SEC. 13(A)(6)
WHICH COVERS "ANY EMPLOYEE EMPLOYED IN AGRICULTURE."  IT RELIED ON THE
BROAD DEFINITION OF "AGRICULTURE" CONTAINED IN SEC. 3(F) OF THE ACT
WHICH PROVIDES, IN RELEVANT PART, THAT THE TERM "INCLUDES FARMING IN
ALL ITS BRANCHES AND AMONG OTHER THINGS INCLUDES ...  ANY PRACTICES
(INCLUDING ANY FORESTRY OR LUMBERING OPERATIONS) PERFORMED BY A FARMER
OR ON A FARM AS AN INCIDENT TO OR IN CONJUNCTION WITH SUCH FARMING
OPERATIONS, INCLUDING PREPARATION FOR MARKET, DELIVERY TO  ...  MARKET
OR TO CARRIERS FOR TRANSPORTATION TO MARKET."  THE WORK IN THE BULKING
PLANTS, THE COURT RULED, WAS "PREPARATION FOR MARKET" WITHIN THE
MEANING OF SEC. 3(F). 

THE EXEMPTION OF SEC. 13(A)(6) READ WITH SEC. 3(F) COVERS LARGE
OPERATORS AS WELL AS SMALL ONES, AS WE RECENTLY SAID IN MANEJA V.
WAIALUA AGRICULTURAL CO., SUPRA, AT 260.  IT ALSO INCLUDES
"EXTRAORDINARY METHODS" OF AGRICULTURE AS WELL AS THE MORE CONVENTIONAL
ONES.  ID., AT 261.  THE QUESTION IN THE WAIALUA CASE WAS WHETHER SUGAR
MILLING WAS INCLUDED IN THE AGRICULTURE EXEMPTION OF SEC. 13(A)(6).  WE
SAID THAT IT WAS NECESSARY TO LOOK TO ALL THE FACTS SURROUNDING THE
PROCESS TO DETERMINE WHETHER THAT PROCESS WAS INCIDENT TO FARMING. 
ID., AT 264-265.  WE HELD THAT SUGAR MILLING WAS NOT, EVEN WHEN DONE BY
THE GROWER.  WE THINK LIKE CONSIDERATIONS INDICATE THAT IN THIS CASE
THE AGRICULTURE OPERATION DOES NOT EXTEND THROUGH THE BULKING PLANTS
BUT ENDS, AS THE DISTRICT COURT RULED, WITH THE DELIVERY OF THE TOBACCO
AT THE RECEIVING PLATFORM OF THE BULKING PLANT.  THAT IS THE "DELIVERY
...  TO MARKET" WITHIN THE MEANING OF SEC. 3(F) OF THE ACT. 

IT IS TRUE THAT KING EDWARD AND MAY ARE FARMERS AND PROCESS IN THEIR
BULKING PLANTS ONLY THE TOBACCO THEY RAISE.  IT IS ALSO TRUE THAT MANY
EMPLOYEES WHO WORK THEIR FARMS ALSO WORK IN THEIR BULKING PLANTS. 
THESE ARE HEAVILY STRESSED AS INDICIA THAT BRING THE BULKING PLANTS
INTO THE AGRICULTURE EXEMPTION.  BUT THERE ARE TWO OTHER FACTORS WHICH
IN OUR VIEW TIP THE SCALES THE OTHER WAY. 

FIRST, TOBACCO FARMERS DO NOT ORDINARILY PERFORM THE BULKING
OPERATION.  AS ALREADY MENTIONED, OF THE 300 FARMERS WHO GROW THIS TYPE
OF TOBACCO IN THIS AREA, ONLY 9 MAINTAIN AND OPERATE THEIR OWN BULKING
PLANTS.  THE REMAINING FARMERS HAVE THEIR CROPS PROCESSED BY OTHERS. 
THE BULKING OPERATION IS FOR THE MOST PART DIVORCED FROM THE
CULTIVATION OF TOBACCO AND FROM THE DRYING OPERATION IN THE TOBACCO
BARNS ON THE FARM.  THE BULKING PROCESS FOR THE MOST PART IS A SEPARATE
PROCESSING STAGE. 

SECOND, THE BULKING OPERATION IS A PROCESS WHICH CHANGES THE NATURAL
STATE OF THE FRESHLY CURED TOBACCO AS SIGNIFICANTLY AS MILLING CHANGES
SUGAR CANE.  AS INDICATED ABOVE, THE BULKING PROCESS CHANGES AND
IMPROVES THE LEAF IN MANY WAYS AND TURNS IT INTO AN INDUSTRIAL
PRODUCT.  WHAT WE SAID IN WAIALUA CONCERNING SUGAR MILLING IS APT HERE:
A PROCESS THAT RESULTS IN SUCH IMPORTANT CHANGES IS "MORE AKIN TO
MANUFACTURING THAN TO AGRICULTURE."  349 U.S., AT 265. 

THE JUDGMENTS OF THE COURT OF APPEALS ARE REVERSED AND THOSE OF THE
DISTRICT COURT AFFIRMED.  IT IS SO ORDERED. 

FN1  THE ENTIRE REGULATION IS SET FORTH IN THE APPENDIX TO THIS
OPINION, POST, P. 482. 

FN2  ON THIS PHASE OF THE PROBLEM THE ADMINISTRATOR SAID IN HIS
FINDINGS DATED DECEMBER 18, 1946: 

"ALTHOUGH IT IS CLEAR THAT ANY LINE ATTEMPTING TO DISTINGUISH BETWEEN
'URBAN-INDUSTRIAL' AND 'RURAL-AGRICULTURAL' COMMUNITIES ON THE BASIS OF
POPULATION CAN AT BEST BE ONLY AN APPROXIMATION, IT IS EQUALLY CLEAR
THAT NONE OF THE PROPOSALS ADVANCED AT THE HEARING WOULD ACCOMPLISH THE
OBJECTIVES OF SUCH A TEST WITH AS MUCH ACCURACY AS THE 2,500 POPULATION
TEST.  AS A CLASS, PLACES OF 2,500 POPULATION OR MORE ARE PREDOMINANTLY
INDUSTRIAL, WHILE PLACES WITH POPULATIONS OF LESS THAN 2,500 ARE
PREDOMINANTLY AGRICULTURAL.  A POPULATION LIMIT OF 2,500, MOREOVER, HAS
FOR OVER 35 YEARS BEEN THE OFFICIAL DIVIDING LINE BETWEEN 'RURAL' AND
'URBAN' EMPLOYED BY THE BUREAU OF THE CENSUS IN ITS STUDIES.  THIS
DIVIDING LINE HAS ALSO BEEN ACCEPTED AND USED IN STUDIES MADE BY THE
BUREAU OF AGRICULTURAL ECONOMICS, THE FEDERAL EMERGENCY RELIEF
ADMINISTRATION, THE WORKS PROGRESS ADMINISTRATION AND OTHER GOVERNMENT
AGENCIES.  IT HAS FURNISHED THE DEFINITION OF 'RURAL' COMMUNITIES WHICH
HAS BEEN THE BASIS OF STUDIES OF RURAL AND URBAN COMMUNITIES BY MANY
SOCIOLOGISTS.   IT HAS BEEN INCORPORATED INTO STATUTE BY THE CONGRESS
OF THE UNITED STATES IN SPECIAL LEGISLATION FOR RURAL COMMUNITIES.*  TO
A VERY GREAT EXTENT THE HANDLING AND PROCESSING OF AGRICULTURAL AND
HORTICULTURAL COMMODITIES IS CARRIED ON IN THE OPEN COUNTRY OR IN TOWNS
OF LESS THAN 2,500.  FOR EXAMPLE, ONLY ABOUT 10% OF GRAIN ELEVATORS ARE
LOCATED IN TOWNS OF 2,500 OR MORE.  ONLY ABOUT 11% OF COTTON GINS ARE
LOCATED IN SUCH POPULATED PLACES.  ABOUT TWO-THIRDS OF ALL FRESH FRUIT
AND VEGETABLE CANNING AND PACKING, CHEESE MANUFACTURING AND POULTRY AND
EGG ASSEMBLING ARE CARRIED ON IN THE OPEN COUNTRY OR IN TOWNS OF 2,500
OR LESS. 

*THESE REFERENCES WERE TO 39 STAT. 356, 40 STAT. 1200. 

"ON THE BASIS OF ALL THE EVIDENCE, IT IS MY CONCLUSION THAT A
POPULATION TEST OF 2,500, WHILE NOT DRAWING A LINE BETWEEN 'URBAN
INDUSTRIAL' AND 'RURAL-AGRICULTURAL' CONDITIONS WITH A FINE PRECISION,
WILL COME AS CLOSE TO ACCOMPLISHING THIS OBJECTIVE AS IT IS POSSIBLE TO
COME IN A GENERAL RULE APPLICABLE TO MANY SITUATIONS." 

FN3  ON THIS PHASE OF THE PROBLEM THE ADMINISTRATOR SAID: 

"THE SELECTION OF APPROPRIATE DISTANCES FOR THE DIFFERENT COMMODITIES
AND GROUPS OF COMMODITIES HAS BEEN NO EASY TASK, AND WAS ACCOMPLISHED
ONLY AFTER CAREFULLY WEIGHING AND SYNTHESIZING A LARGE VARIETY OF
COMPLICATED ECONOMIC FACTORS.  AMONG THE MANY FACTORS TAKEN INTO
CONSIDERATION WERE THE FOLLOWING:  THE KIND OF CROP; THE DISTANCES FROM
WHICH THE ESTABLISHMENTS IN EACH INDUSTRY RECEIVE THE AGRICULTURAL OR
HORTICULTURAL COMMODITIES UPON WHICH THEY PERFORM THE OPERATIONS
SPECIFIED IN THE PERTINENT SECTIONS OF THE ACT; THE GEOGRAPHY AND
TOPOGRAPHY OF THE VARIOUS SECTIONS OF THE COUNTRY IN WHICH THE
DIFFERENT COMMODITIES ARE NORMALLY PRODUCED; THE LOCATION OF THE PLANTS
WITHIN THESE AREAS; THE CONCENTRATION OF CULTIVATION OF THE DIFFERENT
COMMODITIES IN VARIOUS SECTIONS OF THE COUNTRY; THE PATTERN OF
CONCENTRATION OF AGRICULTURAL PRODUCTION WITH RESPECT TO THE LOCATION
OF THE ESTABLISHMENT; DIFFERENCES IN PRACTICE AS BETWEEN SINGLE CROP
AREAS AND DIVERSIFIED FARMING AREAS; THE PERISHABILITY OF THE
COMMODITIES RECEIVED; THE EXTENT TO WHICH THE PLANTS DEAL WITH A SINGLE
COMMODITY RATHER THAN A VARIETY OF COMMODITIES; THE NATURE OF THE
OPERATIONS PERFORMED ON THE COMMODITIES RECEIVED, INCLUDING THE DEGREE
OF INDUSTRIALIZATION OF THE VARIOUS OPERATIONS; THE NUMBER OF HANDS OR
OPERATIONS THROUGH WHICH THE PARTICULAR COMMODITY HAS MOVED SINCE
LEAVING THE FARM, INCLUDING THE POSSIBILITY OF PASSING INCREASED LABOR
COSTS BACK TO THE FARMER; THE MARKETING PRACTICES OF THE PARTICULAR
INDUSTRIES; AND THE WAGE RATES PAID, AND OVERTIME PRACTICES IN THE
VARIOUS COMMUNITIES CONCERNED WITH PARTICULAR COMMODITIES." 

                APPENDIX TO OPINION OF THE COURT. 

THE ADMINISTRATOR DEFINED "AREA OF PRODUCTION," AS USED IN SEC.
13(A)(10) OF THE FAIR LABOR STANDARDS ACT, AS FOLLOWS (29 CFR, C. V,
SEC. 536.2): 

(A)  AN INDIVIDUAL SHALL BE REGARDED AS EMPLOYED IN THE "AREA OF
PRODUCTION" WITHIN THE MEANING OF SECTION 13(A)(10) OF THE FAIR LABOR
STANDARDS ACT IN HANDLING, PACKING, STORING, GINNING, COMPRESSING,
PASTEURIZING, DRYING, PREPARING IN THEIR RAW OR NATURAL STATE, OR
CANNING OF AGRICULTURAL OR HORTICULTURAL COMMODITIES FOR MARKET, OR IN
MAKING CHEESE OR BUTTER OR OTHER DAIRY PRODUCTS: 

(1)  IF THE ESTABLISHMENT WHERE HE IS EMPLOYED IS LOCATED IN THE OPEN
COUNTRY OR IN A RURAL COMMUNITY AND 95 PERCENT OF THE COMMODITIES ON
WHICH SUCH OPERATIONS ARE PERFORMED BY THE ESTABLISHMENT COME FROM
NORMAL RURAL SOURCES OF SUPPLY LOCATED NOT MORE THAN THE FOLLOWING AIR
LINE DISTANCES FROM THE ESTABLISHMENT: 

(I)  WITH RESPECT TO THE GINNING OF COTTON - 10 MILES: 

(II)  WITH RESPECT TO OPERATIONS ON FRESH FRUITS AND VEGETABLES - 15
MILES: 

(III)  WITH RESPECT TO THE STORING OF COTTON AND ANY OPERATIONS ON
COMMODITIES NOT OTHERWISE SPECIFIED IN THIS SUBSECTION - 20 MILES: 

(IV)  WITH RESPECT TO THE COMPRESSING AND COMPRESS-WAREHOUSING OF
COTTON, AND OPERATIONS ON TOBACCO, GRAIN, SOYBEANS, POULTRY OR EGGS -
50 MILES. 

(B)  FOR THE PURPOSES OF THIS SECTION: 

(1)  "OPEN COUNTRY OR RURAL COMMUNITY" SHALL NOT INCLUDE ANY CITY,
TOWN OR URBAN PLACE OF 2,500 OR GREATER POPULATION OR ANY AREA WITHIN: 

(I)  ONE AIR-LINE MILE OF ANY CITY, TOWN, OR URBAN PLACE WITH A
POPULATION OF 2,500 UP TO BUT NOT INCLUDING 50,000 OR: 

(II)  THREE AIR-LINE MILES OF ANY CITY, TOWN OR URBAN PLACE WITH A
POPULATION OF 50,000 UP TO BUT NOT INCLUDING 500,000, OR: 

(III)  FIVE AIR-LINE MILES OF ANY CITY WITH A POPULATION OF 500,000
OR GREATER: 

ACCORDING TO THE LATEST AVAILABLE UNITED STATES CENSUS. 

(2)  THE COMMODITIES SHALL BE CONSIDERED TO COME FROM "NORMAL RURAL
SOURCES OF SUPPLY" WITHIN THE SPECIFIED DISTANCES FROM THE
ESTABLISHMENT IF THEY ARE RECEIVED: 

(I)  FROM FARMS WITHIN SUCH SPECIFIED DISTANCES, OR: 

(II)  FROM FARM ASSEMBLERS OR OTHER ESTABLISHMENTS THROUGH WHICH THE
COMMODITY CUSTOMARILY MOVES, WHICH ARE WITHIN SUCH SPECIFIED DISTANCES
AND LOCATED IN THE OPEN COUNTRY OR IN A RURAL COMMUNITY, OR: 

(III)  FROM FARM ASSEMBLERS OR OTHER ESTABLISHMENTS NOT LOCATED IN
THE OPEN COUNTRY OR IN A RURAL COMMUNITY PROVIDED IT CAN BE
DEMONSTRATED THAT THE COMMODITIES WERE PRODUCED ON FARMS WITHIN SUCH
SPECIFIED DISTANCES. 

(3)  THE PERIOD FOR DETERMINING WHETHER 95 PERCENT OF THE COMMODITIES
ARE RECEIVED FROM NORMAL RURAL SOURCES OF SUPPLY SHALL BE THE LAST
PRECEDING CALENDAR MONTH IN WHICH OPERATIONS WERE CARRIED ON FOR TWO
WORKWEEKS OR MORE, EXCEPT THAT UNTIL SUCH TIME AS AN ESTABLISHMENT HAS
OPERATED FOR SUCH A CALENDAR MONTH THE PERIOD SHALL BE THE TIME DURING
WHICH IT HAS BEEN IN OPERATION. 

(4)  THE PERCENTAGE OF COMMODITIES RECEIVED FROM NORMAL RURAL SOURCES
OF SUPPLY WITHIN THE SPECIFIED DISTANCES SHALL BE DETERMINED BY WEIGHT,
VOLUME OR OTHER PHYSICAL UNIT OF MEASURE, EXCEPT THAT DOLLAR VALUE
SHALL BE USED IF DIFFERENT COMMODITIES RECEIVED IN THE ESTABLISHMENT
ARE CUSTOMARILY MEASURED IN PHYSICAL UNITS THAT ARE NOT COMPARABLE. 
..END :























DOUD, DBA BONDIFIED SYSTEMS V. HODGE 350 U.S. 485 


NO. 129.  ARGUED FEBRUARY 29, 1956 - DECIDED MARCH 26, 1956 - 127 F.
SUPP. 853, JUDGMENT VACATED AND CASE REMANDED. 


A THREE-JUDGE FEDERAL DISTRICT COURT HAS JURISDICTION UNDER 28 U.S.C.
SECS. 1331, 2281 AND 2284 OF A SUIT TO ENJOIN ENFORCEMENT OF A STATE
STATUTE ON GROUNDS OF ALLEGED REPUGNANCY TO THE FEDERAL CONSTITUTION,
EVEN THOUGH THE STATE COURTS HAVE NOT YET RENDERED A CLEAR OR
DEFINITIVE DECISION AS TO THE MEANING OR FEDERAL CONSTITUTIONALITY OF
THE STATUTE.  PP. 485-487. 

DOUD ET AL., DOING BUSINESS AS BONDIFIED SYSTEMS, ET AL. V. HODGE,
AUDITOR OF PUBLIC ACCOUNTS OF ILLINOIS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS ARE A PARTNERSHIP AND ITS AGENT, ALL RESIDENTS OF
ILLINOIS.  THE PARTNERSHIP WAS ENGAGED EXCLUSIVELY IN THE BUSINESS OF
SELLING AND ISSUING MONEY ORDERS IN THE STATE OF ILLINOIS.  THIS
BUSINESS ACTIVITY WAS TO BE CONDUCTED THROUGH AGENTS WHO ARE
PRINCIPALLY PERSONS ENGAGED IN OPERATING RETAIL DRUG, HARDWARE AND
GROCERY STORES.  APPELLANT DERRICK, A DRUG STORE PROPRIETOR, CONTRACTED
WITH THE PARTNERSHIP TO ACT AS ITS AGENT FOR THE SALE OF MONEY ORDERS
WHICH IT ISSUED. 

ILLINOIS, BY STATUTE, (FN1) HAS SOUGHT TO LICENSE AND REGULATE
COMMUNITY CURRENCY EXCHANGES.  SECTION 1 OF THE COMMUNITY CURRENCY
EXCHANGES ACT DEFINES A COMMUNITY CURRENCY EXCHANGE AS "ANY PERSON,
FIRM, ASSOCIATION, PARTNERSHIP OR CORPORATION, EXCEPT BANKS
INCORPORATED UNDER THE LAWS OF THIS STATE AND NATIONAL BANKS ORGANIZED
PURSUANT TO THE LAWS OF THE UNITED STATES, ENGAGED  ...  IN THE
BUSINESS OR SERVICE OF, AND PROVIDING FACILITIES FOR, CASHING CHECKS,
DRAFTS, MONEY ORDERS OR ANY OTHER EVIDENCES OF MONEY ACCEPTABLE TO SUCH
COMMUNITY CURRENCY EXCHANGE, FOR A FEE OR SERVICE CHARGE OR OTHER
CONSIDERATION, OR ENGAGED IN THE BUSINESS OF SELLING OR ISSUING MONEY
ORDERS UNDER HIS OR THEIR OR ITS NAME, OR ANY OTHER MONEY ORDERS (OTHER
THAN UNITED STATES POST OFFICE MONEY ORDERS, AMERICAN EXPRESS COMPANY
MONEY ORDER, POSTAL TELEGRAPH COMPANY MONEY ORDERS, OR WESTERN UNION
TELEGRAPH COMPANY MONEY ORDERS), OR ENGAGED IN BOTH SUCH BUSINESSES, OR
ENGAGED IN PERFORMING ANY ONE OR MORE OF THE FOREGOING SERVICES." 
(FN2)  SUBSEQUENT SECTIONS OF THE ACT PROVIDE FOR THE LICENSING AND
COMPREHENSIVE REGULATION OF SUCH BUSINESSES. 

APPELLANTS BROUGHT THIS SUIT IN THE NORTHERN DISTRICT OF ILLINOIS
SEEKING TO ENJOIN THE APPELLEES, WHO ARE THE AUDITOR OF PUBLIC
ACCOUNTS, THE ATTORNEY GENERAL OF THE STATE OF ILLINOIS AND THE STATE'S
ATTORNEY OF COOK COUNTY, ILLINOIS, FROM ENFORCING THE COMMUNITY
CURRENCY EXCHANGES ACT AGAINST THEM.  JURISDICTION WAS ASSERTED UNDER
28 U.S.C. SEC. 1331.  APPELLANTS ARGUED THAT A PERMANENT INJUNCTION
SHOULD BE ISSUED ON THE GROUND THAT THE ACT DENIED THEM EQUAL
PROTECTION OF THE LAWS IN VIOLATION OF SEC. 1 OF THE FOURTEENTH
AMENDMENT TO THE FEDERAL CONSTITUTION IN THAT APPELLANTS ARE REQUIRED
TO OBTAIN A LICENSE AND SUBMIT TO REGULATION IN THE CONDUCT OF THEIR
MONEY ORDER BUSINESS IN THE STATE WHILE THE AMERICAN EXPRESS COMPANY,
WHICH IS ENGAGED IN THE IDENTICAL BUSINESS ACTIVITY IN ILLINOIS, IS
EXCEPTED FROM THE OPERATION OF THE ACT.  SINCE THE COMPLAINT ATTACKED
THE VALIDITY OF THE STATE STATUTE UNDER THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION, THE SUIT WAS TRIED BEFORE A THREE-JUDGE DISTRICT
COURT PURSUANT TO 28 U.S.C. SEC. 2281 AND 2284. 

THE DISTRICT COURT HEARD THE CASE AT LENGTH AND MADE FINDINGS OF
FACT, THE MATERIAL PORTIONS OF WHICH WE HAVE SET FORTH ABOVE.  THE
DISTRICT COURT DISMISSED THE COMPLAINT, HOLDING THAT IT LACKED
JURISDICTION TO DETERMINE THE CONSTITUTIONAL QUESTION PRESENTED IN THE
ABSENCE OF AN AUTHORITATIVE DETERMINATION BY THE SUPREME COURT OF
ILLINOIS AS TO WHETHER THE EXEMPTION OF THE AMERICAN EXPRESS COMPANY
FROM THE TERMS OF THE ACT IS UNCONSTITUTIONAL AS APPLIED TO THESE
APPELLANTS.  127 F. SUPP. 853.  WE NOTED PROBABLE JURISDICTION.  350
U.S. 814. 

IT IS CLEAR THAT THE DISTRICT COURT HAD JURISDICTION TO ENTERTAIN
APPELLANT'S COMPLAINT BY VIRTUE OF THE AUTHORITY VESTED IN IT BY 28
U.S.C. SECS. 2281 AND 2284.  THIS COURT HAS NEVER HELD THAT A DISTRICT
COURT IS WITHOUT JURISDICTION TO ENTERTAIN A PRAYER FOR AN INJUNCTION
RESTRAINING THE ENFORCEMENT OF A STATE STATUTE ON GROUNDS OF ALLEGED
REPUGNANCY TO THE FEDERAL CONSTITUTION SIMPLY BECAUSE THE STATE COURTS
HAD NOT YET RENDERED A CLEAR OR DEFINITIVE DECISION AS TO THE MEANING
OR FEDERAL CONSTITUTIONALITY OF THE STATUTE. 

WE HOLD THAT THE DISTRICT COURT HAS JURISDICTION OF THIS CAUSE.  IT
WAS ERROR TO DISMISS THE COMPLAINT FOR LACK OF JURISDICTION.  THE
JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CASE IS REMANDED TO
IT.  WE DO NOT DECIDE WHAT PROCEDURES THE DISTRICT COURT SHOULD FOLLOW
ON REMAND.  IT IS SO ORDERED. 

FN1  ILL. REV. STAT., 1955, C. 16 1/2, SECS. 30-56.3. 

FN2  ILL. REV. STAT., 1955, C. 16 1/2, SEC. 31. 
..END :



MURDOCK ACCEPTANCE CORP. V. UNITED STATES 350 U.S. 488 


NO. 56.  ARGUED FEBRUARY 27, 1956 - DECIDED MARCH 26, 1956 - 218 F.2D
702, REVERSED AND REMANDED. 


1.  UNDER 18 U.S.C. SEC. 3617, PROVIDING CONDITIONS TO THE REMISSION
OF FORFEITURES UNDER LIQUOR LAWS, THE SUBSTANCE OF THE REPLY WHICH
PETITIONER FINANCE COMPANY RECEIVED FROM THE INTERNAL REVENUE SERVICE
REGARDING THE AUTOMOBILE PURCHASER'S REPUTATION AS A LIQUOR LAW
VIOLATOR SATISFIED THAT REQUIREMENT OF THE STATUTE, THOUGH THE REPLY
DISCLAIMED KNOWLEDGE OF THE PURCHASER'S REPUTATION AMONG STATE AND
LOCAL OFFICERS.  PP. 488-490. 

2.  WHATEVER MAY BE THE EXTENT OF THE DISTRICT COURT'S DISCRETIONARY
POWER TO DENY REMISSION OF FORFEITURE UNDER 18 U.S.C. SEC. 3617, THERE
WAS NO OCCASION FOR ITS EXERCISE IN THE CIRCUMSTANCES OF THIS CASE. 
PP. 490-491. 

MURDOCK ACCEPTANCE CORP. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE UNITED STATES FILED A LIBEL IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA, UNDER SECS. 3116 AND 3321 OF THE INTERNAL
REVENUE CODE OF 1939, 53 STAT. 362, 401, FOR THE FORFEITURE OF AN
AUTOMOBILE WHICH HAD BEEN USED TO TRANSPORT NONTAX-PAID WHISKEY. 
PETITIONER, A FINANCE COMPANY WHICH HAD ACCEPTED AN ASSIGNMENT OF A
CONDITIONAL SALES CONTRACT WHEN THE AUTOMOBILE WAS PURCHASED, SOUGHT
REMISSION OF THE FORFEITURE TO THE EXTENT OF ITS INTEREST UNDER 18
U.S.C. SEC. 3617.  THAT SECTION PROVIDES THAT IN A FORFEITURE
PROCEEDING THE DISTRICT COURT "SHALL HAVE EXCLUSIVE JURISDICTION TO
REMIT" THE FORFEITURE, BUT THAT THE COURT "SHALL NOT ALLOW" REMISSION
UNLESS THE FINANCE COMPANY (1) ACQUIRED ITS INTEREST IN GOOD FAITH; (2)
HAD NO REASON TO BELIEVE THAT THE AUTOMOBILE WOULD BE USED IN VIOLATION
OF THE LIQUOR LAWS; AND (3): 

"WAS INFORMED IN ANSWER TO ITS INQUIRY, AT THE HEADQUARTERS OF THE
SHERIFF, CHIEF OF POLICE, PRINCIPAL FEDERAL INTERNAL-REVENUE OFFICER
ENGAGED IN THE ENFORCEMENT OF THE LIQUOR LAWS, OR OTHER PRINCIPAL LOCAL
OR FEDERAL LAW-ENFORCEMENT OFFICER OF THE LOCALITY  ...  THAT THE
PURCHASER HAD NO ...  RECORD OR REPUTATION FOR VIOLATING LAWS OF THE
UNITED STATES OR OF ANY STATE RELATING TO LIQUOR." 

IT IS CONCEDED THAT PETITIONER SATISFIED THE FIRST TWO REQUIREMENTS. 
AS TO THE THIRD, PETITIONER MADE A TIMELY INQUIRY REGARDING THE
PURCHASER OF THE AUTOMOBILE TO THE STATE OFFICE OF THE FEDERAL ALCOHOL
AND TOBACCO UNIT, FROM WHICH IT RECEIVED THE FOLLOWING REPLY: 

"NO RECORD OR REPUTATION AS A LIQUOR LAW VIOLATOR AS OF THE DATE OF
THE INQUIRY.  THIS OFFICE DOES NOT KEEP A COMPLETE FILE OF STATE AND
LOCAL ARRESTS OR PROSECUTIONS, AND HAS NO KNOWLEDGE OF THE SUBJECT'S
REPUTATION AMONG STATE AND LOCAL OFFICERS." 

IT IS CONCEDED THAT THE INQUIRY WAS MADE TO AN APPROPRIATE OFFICE AND
THAT, IF THE SUBSTANCE OF THE REPLY SATISFIED THE STATUTE, NO FURTHER
INQUIRIES WERE REQUIRED BY THE STATUTE.  THE ISSUE IS WHETHER THE
SUBSTANCE OF THE REPLY WAS ADEQUATE. 

THE REPLY RECEIVED BY PETITIONER WAS A FORM REPLY DESIGNED BY THE
INTERNAL REVENUE SERVICE EXPRESSLY FOR THE PURPOSE OF SATISFYING THIS
STATUTORY REQUIREMENT.  IT HAD FOR YEARS BEEN ACCEPTED AS COMPLIANCE
WITH THE STATUTE IN ADMINISTRATIVE REMISSIONS AND IN FORFEITURE
PROCEEDINGS IN OTHER DISTRICT COURTS.  NEVERTHELESS, THE DISTRICT COURT
DENIED REMISSION ON THE GROUND THAT THE REPLY DID NOT SATISFY THE
STATUTE IN THAT IT EXPRESSLY DISCLAIMED ANY KNOWLEDGE OF THE
PURCHASER'S RECORD OR REPUTATION FOR STATE LIQUOR LAW VIOLATIONS.  121
F. SUPP. 265.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED, 218
F.2D 702, WITH ONE JUDGE DISSENTING UPON REHEARING, 220 F.2D 279.  WE
THINK THE COURTS BELOW MISCONSTRUED THE REPLY.  THE FIRST SENTENCE
AFFIRMATIVELY STATED THAT THE PURCHASER HAD NO RECORD OR REPUTATION IN
THAT OFFICE AS A "LIQUOR LAW VIOLATOR," AND THAT STATEMENT WAS NOT
LIMITED TO FEDERAL VIOLATIONS.  THE SECOND SENTENCE DID NOT QUALIFY THE
NEGATIVE CHARACTER OF THE REPLY BUT MERELY MADE CLEAR THAT THAT
OFFICE'S KNOWLEDGE WAS NOT UNLIMITED. 

THE DISTRICT COURT ALSO BASED ITS DECISION ON THE ALTERNATIVE GROUND
THAT, EVEN IF THE REQUIREMENTS OF THE STATUTE WERE TECHNICALLY MET,
REMISSION WOULD BE DENIED IN THE DISCRETION OF THE COURT.  THE SOLE
BASIS FOR THAT HOLDING WAS THAT PETITIONER WAS "PUT ON NOTICE" BY THE
REPLY THAT THE PURCHASER MIGHT WELL HAVE A RECORD AS A LIQUOR LAW
VIOLATOR WITH THE STATE AUTHORITIES, AND ITS FAILURE TO INVESTIGATE
FURTHER DISCLOSED "AN INDIFFERENCE ON ITS PART WHICH DOES NOT COMMEND
IT TO THE EQUITABLE CONSCIENCE OF THIS COURT."  WE NEED NOT DECIDE THE
EXTENT OF THE DISTRICT COURT'S DISCRETIONARY POWER TO DENY REMISSIONS,
SINCE IN ANY EVENT WE THINK THERE WAS NO OCCASION FOR ITS EXERCISE
HERE.  THE VERY PURPOSE OF PRESCRIBING IN DETAIL IN THE STATUTE THE
TYPE OF INQUIRY TO BE MADE WAS TO AVOID UNCERTAINTY OVER THE EXTENT OF
INVESTIGATION NECESSARY TO PROTECT FINANCE COMPANIES AGAINST
FORFEITURES.  THAT PURPOSE WOULD BE FRUSTRATED IF A DUTY TO INVESTIGATE
FURTHER COULD BE GROUNDED SOLELY UPON THE ALLEGED INADEQUACY OF A REPLY
CLEARLY SATISFYING THE STATUTORY INVESTIGATION REQUIREMENTS.  IN
LIMITING THE INQUIRY DUTY TO ANY ONE OF SEVERAL OFFICES, CONGRESS MUST
NECESSARILY HAVE COMTEMPLATED THAT THE RECORDS OF ONE OFFICE ONLY WOULD
BE CHECKED.  IT CONSIDERED THAT ADEQUATE. 

THE JUDGMENT BELOW IS REVERSED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

MR. JUSTICE FRANKFURTER DISSENTS. 
..END :














WERNER MACHINE CO., INC. V. DIRECTOR OF DIVISION OF TAXATION, DEPARTMENT
OF THE TREASURY, OF NEW JERSEY 350 U.S. 492 


NO. 63.  ARGUED MARCH 5-6, 1956 - DECIDED MARCH 26, 1956 - 17 N.J. 121,
110 A.2D 89, AFFIRMED. 


AS APPLIED TO THIS NEW JERSEY CORPORATION, THE NEW JERSEY CORPORATION
TAX HERE INVOLVED, MEASURED BY THE CORPORATION'S "NET WORTH," IS A TAX
ON THE CORPORATE FRANCHISE, DOES NOT DISCRIMINATE AGAINST FEDERAL
OBLIGATIONS, AND IS VALID DESPITE THE INCLUSION OF FEDERAL BONDS IN THE
DETERMINATION OF NET WORTH.  PP. 492-494. 

WERNER MACHINE CO., INC. V. DIRECTOR OF DIVISION OF TAXATION, DEPARTMENT
OF THE TREASURY, OF NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

PER CURIAM. 

THE STATE OF NEW JERSEY IMPOSES ON EACH DOMESTIC CORPORATION "AN
ANNUAL FRANCHISE TAX  ...  FOR THE PRIVILEGE OF HAVING OR EXERCISING
ITS CORPORATE FRANCHISE" IN THE STATE.  (FN1)  THIS TAX, AS APPLIED TO
APPELLANT, IS MEASURED BY THE CORPORATION'S "NET WORTH," WHICH IS
DEFINED AS THE SUM OF THE CORPORATION'S ISSUED AND OUTSTANDING CAPITAL
STOCK, PAID-IN OR CAPITAL SURPLUS, EARNED SURPLUS AND UNDIVIDED
PROFITS, OTHER SURPLUS ACCOUNTS WHICH WILL ACCRUE TO THE SHAREHOLDERS
(NOT INCLUDING DEPRECIATION RESERVES), AND DEBTS OWED TO SHAREHOLDERS
OWNING 10 PERCENT OR MORE OF THE CORPORATION'S STOCK.  (FN2)  APPELLANT
IS A CORPORATION ORGANIZED UNDER THE LAWS OF NEW JERSEY, AND IS
THEREFORE SUBJECT TO THE TAX.  IN ASSESSING APPELLANT'S TAX FOR 1952,
THE TAX COMMISSIONER INCLUDED IN APPELLANT'S NET WORTH THE VALUE OF
CERTAIN FEDERAL BONDS HELD BY APPELLANT, THEREBY INCREASING THE AMOUNT
DUE BY $320.07.  APPELLANT PROTESTED, CLAIMING THAT UNDER R.S. SEC.
3701, 31 U.S.C. SEC. 742, THESE BONDS WERE IMMUNE FROM STATE TAXATION. 
THE NEW JERSEY COURTS UPHELD THE COMMISSIONER'S ASSESSMENT, AND THIS
APPEAL CONTESTS THE VALIDITY OF THE STATE STATUTE AS SO APPLIED. 

APPELLANT CONTENDS THAT THIS TAX IS NOT IN REALITY A FRANCHISE TAX,
BUT IS RATHER IN THE NATURE OF A DIRECT PROPERTY TAX ON THE IMMUNE
FEDERAL OBLIGATIONS.  CORPORATE FRANCHISES GRANTED BY A STATE CREATE A
RELATIONSHIP WHICH MAY LEGITIMATELY BE MADE THE SUBJECT OF TAXATION,
HOME INS. CO. V. NEW YORK, 134 U.S. 594, 599-600; FLINT V. STONE TRACY
CO., 220 U.S. 107, 162; EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379,
388; AND THE STATUTE EXPRESSLY DECLARES THIS TO BE A FRANCHISE TAX. 
MOREOVER, THE SUPREME COURT OF NEW JERSEY HAS, ON INDEPENDENT
EXAMINATION, FOUND THIS TO BE "A BONA FIDE FRANCHISE TAX."  (FN3)
WHILE THIS IS, OF COURSE, NOT CONCLUSIVE HERE, SOCIETY FOR SAVINGS V.
BOWERS, 349 U.S. 143, WE FIND NO BASIS IN THIS INSTANCE FOR NOT
ACCEPTING THE STATE COURT'S CONCLUSION THAT THIS TAX IS NOT IMPOSED
DIRECTLY ON THE PROPERTY HELD BY THE CORPORATION.  CF. PACIFIC CO. V.
JOHNSON, 285 U.S. 480, 495-496. 

APPELLANT ARGUES FURTHER THAT EVEN IF THIS IS A FRANCHISE TAX, IT
MUST FALL BECAUSE ITS EFFECT IS THE SAME AS IF IT HAD BEEN IMPOSED
DIRECTLY ON THE TAX-EXEMPT FEDERAL SECURITIES.  SINCE THE TAX REMAINS
THE SAME WHATEVER THE CHARACTER OF THE CORPORATE ASSETS MAY BE, NO
CLAIM CAN BE SUSTAINED THAT THIS TAXING STATUTE DISCRIMINATES AGAINST
THE FEDERAL OBLIGATIONS.  AND SINCE THIS IS A TAX ON THE CORPORATE
FRANCHISE, IT IS VALID DESPITE THE INCLUSION OF FEDERAL BONDS IN THE
DETERMINATION OF NET WORTH.  THIS COURT HAS CONSISTENTLY UPHELD
FRANCHISE TAXES MEASURED BY A YARDSTICK WHICH INCLUDES TAX-EXEMPT
INCOME OR PROPERTY, EVEN THOUGH A PART OF THE ECONOMIC IMPACT OF THE
TAX MAY BE SAID TO BEAR INDIRECTLY UPON SUCH INCOME OR PROPERTY.  SEE,
E.G., SOCIETY FOR SAVINGS V. COITE, 6 WALL.  594; PROVIDENT INSTITUTION
V. MASSACHUSETTS, 6 WALL.  611; HAMILTON CO. V. MASSACHUSETTS, 6 WALL. 
632; HOME INS. CO. V. NEW YORK, SUPRA; EDUCATIONAL FILMS CORP. V. WARD,
SUPRA; PACIFIC CO. V. JOHNSON, SUPRA.  WE HAVE ONLY RECENTLY ADHERED TO
THIS PRINCIPLE IN ANOTHER ASPECT OF THIS FIELD OF TAXATION.  SEE
SOCIETY FOR SAVINGS V. BOWERS, SUPRA, AT 147-148.  NEW JERSEY REALTY
TITLE INS. CO. V. DIVISION OF TAX APPEALS, 338 U.S. 665, ON WHICH
APPELLANT RELIES, IS DISTINGUISHABLE, IN THAT IT DID NOT INVOLVE A
FRANCHISE TAX, BUT RATHER A TAX WHOSE LEGAL INCIDENCE THIS COURT FOUND
TO BE UPON THE INTANGIBLE ASSETS OF THE CORPORATION. 

SINCE AS APPLIED HERE THIS IS A PERMISSIBLE TAX ON THE CORPORATE
FRANCHISE, THE DECISION BELOW MUST BE AFFIRMED. 

FN1  N.J. LAWS 1945, C. 162, N.J.S.A. SECS. 54:10A-1 ET SEQ. 

FN2  ID., SECS. 54:10A-4(D)(5). 

FN3  WERNER MACHINE CO. V. DIRECTOR OF DIVISION OF TAXATION, 17 N.J.
121, 125, 110 A.2D 89, 91. 
..END :












PETROWSKI V. HAWKEYE-SECURITY INSURANCE CO. 350 U.S. 495 


NO. 469.  ARGUED MARCH 7, 1956 - DECIDED MARCH 26, 1956 - 226 F.2D 126,
REVERSED AND REMANDED. 


THE DISTRICT COURT HAD JURISDICTION OF THE SUBJECT MATTER IN THIS
CASE; AND RESPONDENT, BY ITS STIPULATION, WAIVED ANY RIGHT TO ASSERT A
LACK OF PERSONAL JURISDICTION OVER IT.  PP.  495-496. 

PETROWSKI ET AL. V. HAWKEYE-SECURITY INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PER CURIAM. 

RESPONDENT, HAWKEYE-SECURITY INSURANCE COMPANY, FILED A MOTION TO
QUASH THE RETURN OF SERVICE OF SUMMONS ON THE GROUNDS THAT THE DISTRICT
COURT ACQUIRED NO PERSONAL JURISDICTION OVER IT AND THAT THE POWER OF
ATTORNEY WHICH IT HAD FILED WITH THE COMMISSIONER OF MOTOR VEHICLES OF
THE STATE OF WISCONSIN DID NOT AUTHORIZE HIM TO ACCEPT SERVICE OF
PROCESS FOR IT IN THIS CASE.  AFTER THIS MOTION WAS DENIED, RESPONDENT
FILED ITS ANSWER TO THE COMPLAINT IN WHICH IT AGAIN PRESSED ITS CLAIM
THAT THE DISTRICT COURT LACKED PERSONAL JURISDICTION OVER IT.
SUBSEQUENTLY, HOWEVER, RESPONDENT FILED (1) A MOTION TO AMEND ITS
ANSWER AND TO INTERPLEAD; (2) A COUNTERCLAIM; (3) A STIPULATION AND
ORDER ADDING A PARTY-PLAINTIFF AND AMENDING THE COMPLAINT AND ANSWER;
AND (4) A STIPULATION THAT JUDGMENT BE ENTERED AGAINST THE ALLEGED
INSURED IN FAVOR OF THE ADDITIONAL PARTY-PLAINTIFF.  THE LATTER
STIPULATION INCLUDED THE FOLLOWING PROVISION, TOGETHER WITH OTHERS
CONSISTENT WITH IT AND CONFIRMATORY OF ITS PURPOSE: 

"1.  THAT EACH OF THE PARTIES TO THIS STIPULATION VOLUNTARILY SUBMITS
TO THE JURISDICTION OF THE ABOVE ENTITLED COURT WITHOUT SERVICE OF
PROCESS HEREIN, THE SAME AS IF PERSONAL SERVICE HAD BEEN OBTAINED BY
EACH AGAINST THE OTHER." 

FOLLOWING A TRIAL ON THE MERITS, JUDGMENT WAS ENTERED AGAINST
RESPONDENT, BUT THE COURT OF APPEALS, WITH ONE JUDGE DISSENTING,
REVERSED ON THE GROUND THAT RESPONDENT'S MOTION TO QUASH SHOULD HAVE
BEEN GRANTED.  226 F.2D 126. 

UPON EXAMINATION OF THE RECORD AND THE LAW, WE CONCLUDE THAT THE
DISTRICT COURT HAD JURISDICTION OF THE SUBJECT MATTER AND THAT
RESPONDENT, BY ITS STIPULATION, WAIVED ANY RIGHT TO ASSERT A LACK OF
PERSONAL JURISDICTION OVER IT.  WE, THEREFORE, REVERSE THE JUDGMENT OF
THE COURT OF APPEALS AND REMAND THE CASE TO IT FOR FURTHER
PROCEEDINGS.  REVERSED AND REMANDED. 
..END :



CAMMER V. UNITED STATES 350 U.S. 399 


NO. 110.  ARGUED JANUARY 24, 1956 - DECIDED MARCH 12, 1956 - U.S. APP.
D.C. - , 223 F.2D 322, REVERSED. 


A LAWYER IS NOT THE KIND OF "OFFICER" WHO CAN BE TRIED SUMMARILY FOR
CONTEMPT UNDER 18 U.S.C. SEC. 401(2), WHICH EMPOWERS A COURT OF THE
UNITED STATES TO PUNISH AS CONTEMPT "MISBEHAVIOR OF ANY OF ITS OFFICERS
IN THEIR OFFICIAL TRANSACTIONS."  PP. 399-408. 

(A)  THIS SECTION DERIVES FROM THE CONTEMPT ACT OF MARCH 2, 1831, 4
STAT. 487, AND SHOULD BE NARROWLY CONSTRUED BECAUSE ITS LEGISLATIVE
HISTORY SHOWS THAT CONGRESS INTENDED DRASTICALLY TO LIMIT THE CONTEMPT
POWER OF FEDERAL COURTS AND BECAUSE THE EXERCISE OF ANY BROADER
CONTEMPT POWER WOULD PERMIT TOO GREAT INROADS ON THE PROCEDURAL
SAFEGUARDS OF THE BILL OF RIGHTS.  PP. 403-404. 

(B)  THE TERM "OFFICERS," AS USED IN 18 U.S.C. SEC. 401(2), SHOULD
NOT BE EXPANDED BEYOND THE GROUP OF PERSONS - SUCH AS MARSHALS,
BAILIFFS, COURT CLERKS AND JUDGES - WHO SERVE AS CONVENTIONAL COURT
OFFICERS AND ARE REGULARLY TREATED AS SUCH IN THE LAWS.  P. 405. 

(C)  THE LEGISLATIVE HISTORY OF THE 1831 ACT IS COMPLETELY
INCONSISTENT WITH A PURPOSE TO TREAT LAWYERS AS "OFFICERS OF THE COURT"
SUBJECT TO SUMMARY PUNISHMENT.  PP. 405-408. 

CAMMER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

18 U.S.C. SEC. 401(2) EMPOWERS A COURT OF THE UNITED STATES TO PUNISH
AS CONTEMPT "MISBEHAVIOR OF ANY OF ITS OFFICERS IN THEIR OFFICIAL
TRANSACTIONS  ...  ."  (FN1)  PETITIONER, A LAWYER, SENT A
QUESTIONNAIRE TO A DISTRICT OF COLUMBIA GRAND JURY.  FOR THIS, THE
DISTRICT COURT FOUND PETITIONER GUILTY OF CONTEMPT AND FINED HIM $100. 
122 F. SUPP. 388.  IN SO DOING THE COURT HELD THAT WITHIN THE MEANING
OF THE STATUTE PETITIONER WAS ONE "OF ITS OFFICERS" AND THAT SENDING
THE QUESTIONNAIRE WAS "MISBEHAVIOR" IN AN "OFFICIAL TRANSACTION."  THE
COURT OF APPEALS AFFIRMED, CIRCUIT JUDGE FAHY DISSENTING.  96 U.S. APP.
D.C. 30, 223 F.2D 322.  THE CONSTRUCTION OF THE STATUTE RAISED SUCH
IMPORTANT QUESTIONS THAT WE GRANTED CERTIORARI.  350 U.S. 817.  A
RATHER DETAILED STATEMENT OF THE FACTS, WHICH ARE NOT IN DISPUTE, WILL
POINT UP THE BROAD SCOPE GIVEN THE STATUTE IN SUSTAINING THIS
CONVICTION. 

A DISTRICT OF COLUMBIA GRAND JURY RETURNED AN INDICTMENT AGAINST BEN
GOLD, CHARGING HIM WITH HAVING FILED A FALSE NON-COMMUNIST AFFIDAVIT IN
VIOLATION OF 18 U.S.C. SEC. 1001.  PETITIONER PROMPTLY APPEARED AS HIS
ATTORNEY.  SHORTLY THEREAFTER THE SAME GRAND JURY SUMMONED TWO OF MR.
GOLD'S ASSOCIATES, COMMANDING THEM TO APPEAR AND PRODUCE DOCUMENTS. 
PETITIONER APPEARED FOR THEM AND MOVED TO QUASH AND VACATE THE
SUBPOENAS.  ON THE SAME DAY OR THE NEXT, PETITIONER MAILED FROM NEW
YORK IDENTICAL LETTERS AND QUESTIONNAIRES TO ALL MEMBERS OF THE GRAND
JURY WHO WERE EMPLOYEES OF THE FEDERAL GOVERNMENT.  IN THE LETTERS
PETITIONER TOLD THE GRAND JURORS THAT AS MR. GOLD'S ATTORNEY HE WAS
TRYING TO LEARN THE EFFECT OF THE GOVERNMENT'S LOYALTY PROGRAM ON
FEDERAL EMPLOYEE JURORS.  EXPLAINING THAT HE WANTED NO INFORMATION
CONCERNING PROCEEDINGS OR DELIBERATIONS OF THE GRAND JURY, HE ASKED THE
JURORS TO ANSWER HIS QUESTIONS ON THE GROUND THAT IT WAS THEIR DUTY AS
CITIZENS "TO HELP ENLIGHTEN THE COURT ON AN ISSUE WHICH AFFECTS THE
LIBERTY OF A CITIZEN ON TRIAL IN A CRIMINAL CASE."  ALL OF THE
QUESTIONS WERE DIRECTED TOWARD LEARNING WHETHER THE GOVERNMENT EMPLOYEE
JURORS MIGHT BE INFLUENCED BY BIAS OR FEAR TO INDICT PERSONS CHARGED
WITH HAVING HAD SOME ASSOCIATION WITH THE COMMUNIST PARTY.  ON THE
BASIS OF THESE FACTS, THE DISTRICT COURT ORDERED PETITIONER TO APPEAR
AND SHOW CAUSE WHY HE SHOULD NOT BE ADJUDGED GUILTY OF CONTEMPT UNDER
18 U.S.C.  SEC. 401(2). 

PETITIONER APPEARED AND ANSWERED THE CHARGES.  HE ADMITTED THE FACTS
JUST STATED BUT DENIED THAT HIS CONDUCT CONSTITUTED CONTEMPT WITHIN THE
MEANING OF THE STATUTE.  HIS ANSWER SET OUT THE FOLLOWING ADDITIONAL
FACTS WHICH ARE NOT DISPUTED: 

PRIOR TO THE RETURN OF THE INDICTMENT AGAINST MR. GOLD IN THE
DISTRICT OF COLUMBIA, TWO FEDERAL GRAND JURIES IN NEW YORK HAD
INVESTIGATED THIS SAME ALLEGED OFFENSE BUT RETURNED NO INDICTMENT. 
IMMEDIATELY AFTER MR. GOLD WAS ARRAIGNED IN THE DISTRICT OF COLUMBIA
COURT, PETITIONER LEARNED FROM A ROSTER OF THE GRAND JURY OBTAINED FROM
THE CLERK THAT 13 MEMBERS OF THE GRAND JURY - A MAJORITY - WERE
GOVERNMENT EMPLOYEES.  PETITIONER DECIDED TO MAKE A MOTION CHALLENGING
THE LEGAL QUALIFICATIONS OF THE GOVERNMENT EMPLOYEE JURORS.  HE
CONCLUDED THAT THIS COULD BE DONE UNDER RULE 6(B) OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE, RELYING IN PART ON THIS COURT'S STATEMENT IN
DENNIS V. UNITED STATES, 339 U.S. 162, 171-172, THAT "PRESERVATION OF
THE OPPORTUNITY TO PROVE ACTUAL BIAS IS A GUARANTEE OF A DEFENDANT'S
RIGHT TO AN IMPARTIAL JURY." 

PETITIONER WAS ALSO LED TO BELIEVE THAT IT WOULD BE NECESSARY TO
OBTAIN STATEMENTS FROM THE GRAND JURORS BECAUSE OF THE GOVERNMENT'S
BRIEF AND THE COURT'S HOLDING IN EMSPAK V. UNITED STATES, 91 U.S. APP.
D.C. 378, 203 F.2D 54.  THERE THE GOVERNMENT SUCCESSFULLY CONTESTED
EMSPAK'S EFFORTS TO SHOW THAT FEDERAL EMPLOYEE GRAND JURORS WERE BIASED
AND SHOULD NOT HAVE SERVED BY ARGUING THAT "THERE IS NOT THE SLIGHTEST
INDICATION IN THE LONG MOTION AND OFFER OF PROOF THAT AN ATTEMPT HAS
BEEN MADE TO INTERVIEW A SINGLE ONE OF THE PERSONS."  THE GOVERNMENT
ALSO ARGUED THERE THAT IT WAS THE DEFENDANT'S DUTY TO MAKE HIS OWN
INVESTIGATION OF BIAS INSTEAD OF CALLING ON THE COURT TO MAKE IT FOR
HIM.  THE PETITIONER WAS ALSO INFLUENCED BY WHAT HAD TAKEN PLACE IN
CONNECTION WITH AN INVESTIGATION OF BIAS OF GOVERNMENT EMPLOYEES IN
ANOTHER CASE IN THE DISTRICT OF COLUMBIA.  THERE A DISTRICT JUDGE HAD
HELD THAT THE DEFENDANT WEINBERG WAS NOT ENTITLED TO A HEARING AS TO
BIAS OF GOVERNMENT EMPLOYEES AS GRAND JURORS UNLESS THE DEFENDANT HAD
HIMSELF FIRST UNDERTAKEN TO CONTACT THE JURORS TO ASCERTAIN FROM THEM
THE EXISTENCE OF BIAS.  THE DISTRICT JUDGE HAD STATED THAT THERE WAS
"NOTHING TO PREVENT COUNSEL, IF HE SEES FIT, CONTACTING THOSE 15
MEMBERS OF THE GRAND JURY AND INQUIRING ONLY OF ONE SUBJECT, WHETHER OR
NOT THEY HAD ANY PERSONAL BIAS TOWARD" THE DEFENDANT.  AFTER THIS
STATEMENT COUNSEL FOR WEINBERG HAD SENT A LETTER AND QUESTIONNAIRE TO
ALL THE GOVERNMENT EMPLOYEE MEMBERS OF THE GRAND JURY.  PETITIONER
CONSULTED WITH WEINBERG'S LAWYERS WHO TOLD HIM THEY HAD SENT THE
LETTERS AND QUESTIONNAIRES WITHOUT THE PRIOR KNOWLEDGE OR AUTHORITY OF
THE DISTRICT JUDGE, THAT THEIR ACTION WAS LATER MADE KNOWN TO HIM, AND
THAT NO SUGGESTION OF CRITICISM WAS MADE EITHER BY THE JUDGE OR BY THE
GOVERNMENT.  PETITIONER THEN MAILED SUBSTANTIALLY THE SAME LETTER AND
QUESTIONNAIRE SENT BY WEINBERG'S COUNSEL TO THE GOVERNMENT EMPLOYEES ON
THE GRAND JURY THAT HAD INDICTED HIS CLIENT, GOLD. 

ON THE BASIS OF THE FOREGOING UNDISPUTED FACTS THE DISTRICT JUDGE
FOUND PETITIONER GUILTY OF CONTEMPT.  HE CONCLUDED THAT PETITIONER'S
ACT IN SENDING THE QUESTIONNAIRES WAS AN IMPROPRIETY BUT WENT ON TO
SAY:  "THERE SEEMS TO BE REASON TO BELIEVE RESPONDENT MAY HAVE
MISCONCEIVED THE PROPRIETIES.  WHAT HE DID WAS OPEN.  THERE WAS NO
OPPROBRIOUS PERSONAL APPROACH TO JURORS.  THERE IS INDICATION
RESPONDENT MAY HAVE BELIEVED HE HAD A RIGHT TO PROPOUND THE QUESTIONS
AT THE TIME HE DID, NOTWITHSTANDING THIS COURT IS OF OPINION HE HAD
NOT."  122 F. SUPP., AT 389. 

THE CONTEMPT SECTION HERE RELIED ON DERIVES FROM THE CONTEMPT ACT OF
MARCH 2, 1831.  4 STAT. 487.  IN NYE V. UNITED STATES, 313 U.S. 33, WE
REVIEWED THE HISTORY OF THE 1831 ACT AND FOUND THAT ITS PURPOSE WAS
GREATLY TO LIMIT THE CONTEMPT POWER OF FEDERAL COURTS.  (FN2)  FOR THIS
REASON WE GAVE THE PROVISION OF THE CONTEMPT ACT THEN UNDER
CONSIDERATION A NARROW CONSTRUCTION.  EVEN THOUGH WE RECOGNIZED THAT
NYE WAS GUILTY OF "HIGHLY REPREHENSIBLE" CONDUCT, WE HELD THAT HE COULD
NOT BE PUNISHED SUMMARILY FOR CONTEMPT BUT MUST BE "AFFORDED THE NORMAL
SAFEGUARDS SURROUNDING CRIMINAL PROSECUTIONS."  ID., AT 52, 53.  SOME
TIME AFTER THE NYE CASE WE CONSIDERED IN RE MICHAEL, 326 U.S. 224. 
THERE A TRUSTEE IN BANKRUPTCY HAD BEEN ADJUDGED GUILTY OF CONTEMPT. 
THE GOVERNMENT ARGUED THAT HE WAS GUILTY OF MISBEHAVIOR AS AN OFFICER
OF THE COURT IN AN OFFICIAL TRANSACTION UNDER THE SAME SECTION INVOLVED
HERE.  AGAIN WE POINTED OUT THAT THE 1831 ACT "REPRESENTED A DELIBERATE
CONGRESSIONAL PURPOSE DRASTICALLY TO CURTAIL THE RANGE OF CONDUCT WHICH
COURTS COULD PUNISH AS CONTEMPT."  WE THERE CONSTRUED THE ACT AS
EMBODYING A CONGRESSIONAL PLAN TO LIMIT THE CONTEMPT POWER TO "THE
LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED."  SEE ANDERSON V.
DUNN, 6 WHEAT.  204, 231.  WE ADDED, "THE EXERCISE BY FEDERAL COURTS OF
ANY BROADER CONTEMPT POWER THAN THIS WOULD PERMIT TOO GREAT INROADS ON
THE PROCEDURAL SAFEGUARDS OF THE BILL OF RIGHTS, SINCE CONTEMPTS ARE
SUMMARY IN THEIR NATURE, AND LEAVE DETERMINATION OF GUILT TO A JUDGE
RATHER THAN A JURY.  IT IS IN THIS CONSTITUTIONAL SETTING THAT WE MUST
RESOLVE THE ISSUES HERE RAISED."  326 U.S., AT 227.  WE CONSIDER THE
JUDICIAL POWER HERE IN THAT SAME SETTING.  CF. UNITED STATES EX REL.
TOTH V. QUARLES, 350 U.S. 11, 15-16. 

PETITIONER CONTENDS THAT HIS CONDUCT WAS NOT "MISBEHAVIOR" WITHIN THE
MEANING OF THE ACT, BUT WAS A GOOD FAITH ATTEMPT TO DISCHARGE HIS
DUTIES AS COUNSEL FOR A DEFENDANT IN A CRIMINAL CASE.  WE FIND IT
UNNECESSARY TO DECIDE THIS BUT IT IS NOT OUT OF PLACE TO SAY THAT NO
STATUTE OR RULE OF COURT SPECIFICALLY PROHIBITS CONDUCT SUCH AS
PETITIONER'S.  PETITIONER ALSO CONTENDS THAT SENDING THE QUESTIONNAIRE
WAS NOT AN "OFFICIAL TRANSACTION" WITHIN THE MEANING OF THE ACT. 
HOWEVER, IF WE ASSUMED THAT A LAWYER IN ORDINARY PRACTICE IS AN
"OFFICIAL" OR "OFFICER" OF THE COURT IT WOULD BE HARD TO DRAW ANY LINE
BETWEEN "OFFICIAL" AND "UNOFFICIAL" TRANSACTIONS.  INDEED THERE IS
PLAUSIBILITY IN THE IMPLICATION OF THE COURT OF APPEALS THAT IF LAWYERS
ARE COVERED BY THIS SECTION OF THE ACT THEY ARE ENGAGED IN OFFICIAL
TRANSACTIONS WHENEVER ENGAGED IN THE "PRACTICE OF THE PROFESSION."  BUT
WE FIND IT UNNECESSARY TO DECIDE WHEN A LAWYER IS ENGAGED IN AN
"OFFICIAL TRANSACTION" FOR WE HOLD THAT A LAWYER IS NOT A COURT
"OFFICER" WITHIN THE MEANING OF SEC. 401(2). 

IT HAS BEEN STATED MANY TIMES THAT LAWYERS ARE "OFFICERS OF THE
COURT."  ONE OF THE MOST FREQUENTLY REPEATED STATEMENTS TO THIS EFFECT
APPEARS IN EX PARTE GARLAND, 4 WALL.  333, 378.  THE COURT POINTED OUT
THERE, HOWEVER, THAT AN ATTORNEY WAS NOT AN "OFFICER" WITHIN THE
ORDINARY MEANING OF THAT TERM.  CERTAINLY NOTHING THAT WAS SAID IN EX
PARTE GARLAND OR IN ANY OTHER CASE DECIDED BY THIS COURT PLACES
ATTORNEYS IN THE SAME CATEGORY AS MARSHALS, BAILIFFS, COURT CLERKS OR
JUDGES.  UNLIKE THESE OFFICIALS A LAWYER IS ENGAGED IN A PRIVATE
PROFESSION, IMPORTANT THOUGH IT BE TO OUR SYSTEM OF JUSTICE.  IN
GENERAL HE MAKES HIS OWN DECISIONS, FOLLOWS HIS OWN BEST JUDGMENT,
COLLECTS HIS OWN FEES AND RUNS HIS OWN BUSINESS.  THE WORD "OFFICER" AS
IT HAS ALWAYS BEEN APPLIED TO LAWYERS CONVEYS QUITE A DIFFERENT MEANING
FROM THE WORD "OFFICER" AS APPLIED TO PEOPLE SERVING AS OFFICERS WITHIN
THE CONVENTIONAL MEANING OF THAT TERM.  (FN3)  CF. LABOR BOARD V. COCA
COLA BOTTLING CO., 350 U.S. 264.  WE SEE NO REASON WHY THE CATEGORY OF
"OFFICERS" SUBJECT TO SUMMARY JURISDICTION OF A COURT UNDER SEC. 401(2)
SHOULD BE EXPANDED BEYOND THE GROUP OF PERSONS WHO SERVE AS
CONVENTIONAL COURT OFFICERS AND ARE REGULARLY TREATED AS SUCH IN THE
LAWS.  SEE 28 U.S.C. SECS. 601-963. 

THERE ARE STRONG REASONS WHY ATTORNEYS SHOULD NOT BE CONSIDERED
"OFFICERS" UNDER SEC. 401(2).  AS WE POINTED OUT IN THE NYE CASE, THE
1831 ACT WAS PROMPTLY PASSED BY THE CONGRESS AFTER THE IMPEACHMENT
PROCEEDINGS AGAINST JUDGE PECK FAILED BY A SENATORIAL VOTE OF 22 TO
21.  JUDGE PECK HAD SENT A LAWYER TO JAIL AND HAD TAKEN AWAY HIS RIGHT
TO PRACTICE AS PUNISHMENT FOR AN ALLEGED CONTEMPT.  THE CONTEMPT
CONSISTED OF PUBLISHED CRITICISM OF JUDGE PECK'S OPINION IN A CASE IN
WHICH THE CONVICTED LAWYER HAD APPEARED AS COUNSEL; HE WAS ALSO COUNSEL
IN OTHER PENDING CASES INVOLVING SIMILAR ISSUES.  THOSE DIRECTING THE
IMPEACHMENT PROCEEDINGS, WHO LATER BROUGHT ABOUT THE PASSAGE OF THE
1831 ACT, EXPRESSED DEEP CONCERN LEST LAWYERS CONTINUE TO BE SUBJECTED
TO SUMMARY TRIALS BY JUDGES WITHOUT SAFEGUARDS OF JURIES AND REGULAR
COURT PROCEDURE.  CONGRESSMAN JAMES BUCHANAN WHO MADE THE LAST ARGUMENT
AGAINST JUDGE PECK STATED: 

"BUT WHAT IS THE PROCESS IN THE CASE OF CONTEMPTS? 

"WITHOUT EITHER AN INFORMATION OR AN INDICTMENT, BUT MERELY ON A
SIMPLE RULE TO SHOW CAUSE, DRAWN UP IN ANY FORM THE JUDGE MAY THINK
PROPER, A MAN IS PUT UPON HIS TRIAL FOR AN INFAMOUS OFFENCE, INVOLVING
IN ITS PUNISHMENT THE LOSS BOTH OF LIBERTY AND PROPERTY.  HE IS
DEPRIVED BOTH OF PETIT JURY AND GRAND JURY, AND IS TRIED BY AN ANGRY
ADVERSARY PREPARED TO SACRIFICE HIM AND HIS RIGHTS ON THE ALTAR OF HIS
OWN VENGEANCE. 

*         *         *         *         * 

"I MAY BE WRONG, BUT I HOLD IT TO BE THE IMPERATIVE DUTY OF AN
ATTORNEY TO PROTECT THE INTERESTS OF HIS CLIENT OUT OF COURT AS WELL AS
IN COURT."  (FN4) 

AGAIN MR. BUCHANAN SAID: 

"I BELIEVE THAT I HAVE AS GOOD A RIGHT TO THE EXERCISE OF MY
PROFESSION, AS THE MECHANIC HAS TO FOLLOW HIS TRADE, OR THE MERCHANT TO
ENGAGE IN THE PURSUITS OF COMMERCE  ...  .  THE PUBLIC HAVE ALMOST AS
DEEP AN INTEREST IN THE INDEPENDENCE OF THE BAR AS OF THE BENCH." 
(FN5) 

SUCH STATEMENTS BY THE SAME MAN WHO REPORTED THE 1831 ACT TO THE
HOUSE OF REPRESENTATIVES ALMOST IMMEDIATELY AFTER JUDGE PECK'S
ACQUITTAL ARE COMPLETELY INCONSISTENT WITH A PURPOSE TO TREAT LAWYERS
AS "OFFICERS OF THE COURT" SUBJECT TO SUMMARY PUNISHMENT.  WE CANNOT
HOLD THAT LAWYERS ARE SUBJECT TO THE PRECISE KIND OF SUMMARY CONTEMPT
POWER THAT THE ACT WAS DESIGNEDLY DRAWN TO BAR JUDGES FROM EXERCISING. 
EFFORTS TO INFLUENCE, INTIMIDATE OR IMPEDE JURIES.  (FN6)  AND CONGRESS
EXPRESSLY PROVIDED THAT PROSECUTION THEREFOR BE BY INDICTMENT. 
SUBSTANTIALLY THE SAME PROVISION HAS BEEN A PART OF OUR LAW EVER
SINCE.  18 U.S.C. SEC. 1503.  SEE ALSO FED. RULES CRIM. PROC. 7(A).  OF
COURSE IT DOES NOT COVER THIS CASE BECAUSE THERE IS NO CHARGE THAT
PETITIONER ATTEMPTED IMPROPERLY TO INFLUENCE THE JURY OR VIOLATE SEC.
1503 IN ANY OTHER WAY.  HAD THERE BEEN SUCH A CHARGE PETITIONER WOULD
HAVE BEEN ENTITLED TO A TRIAL BY JURY AFTER INDICTMENT BY GRAND JURY. 
WE HOLD THAT A LAWYER IS NOT THE KIND OF "OFFICER" WHO CAN BE SUMMARILY
TRIED FOR CONTEMPT UNDER 18 U.S.C. SEC. 401(2).  (FN7)  THE JUDGMENT OF
THE COURT OF APPEALS MUST THEREFORE BE REVERSED.  REVERSED.    FN1

"A COURT OF THE UNITED STATES SHALL HAVE POWER TO PUNISH BY FINE OR
IMPRISONMENT, AT ITS DISCRETION, SUCH CONTEMPT OF ITS AUTHORITY, AND
NONE OTHER, AS: 

"(1)  MISBEHAVIOR OF ANY PERSON IN ITS PRESENCE OR SO NEAR THERETO AS
TO OBSTRUCT THE ADMINISTRATION OF JUSTICE: 

"(2)  MISBEHAVIOR OF ANY OF ITS OFFICERS IN THEIR OFFICIAL
TRANSACTIONS: 

"(3)  DISOBEDIENCE OR RESISTANCE TO ITS LAWFUL WRIT, PROCESS, ORDER,
RULE, DECREE, OR COMMAND." 

FN2  FOR A DISCUSSION OF THE 1831 ACT AND THE NARROW LIMITS OF THE
CONTEMPT POWER IN GENERAL, SEE FRANKFURTER AND LANDIS, POWER OF
CONGRESS OVER PROCEDURE IN CRIMINAL CONTEMPTS IN "INFERIOR" FEDERAL
COURTS - A STUDY IN SEPARATION OF POWERS, 37 HARV. L. REV. 1010; NELLES
AND KING, CONTEMPT BY PUBLICATION IN THE UNITED STATES, 28 COL. L. REV.
401, 525.  SEE ALSO STANSBURY, REPORT OF THE TRIAL OF JAMES H. PECK
(1833). 

FN3  ILLUSTRATIONS OF THE CONFESSION AND DIFFICULTY OF COURTS IN
EXPLAINING WHAT IS MEANT WHEN A LAWYER IS CALLED AN OFFICER OF THE
COURT MAY BE FOUND IN THE FOLLOWING CASES: LANGEN V. BORKOWSKI, 188
WIS. 277, 301, 206 N.W. 181, 190; IN RE GALUSHA, 184 CAL. 697, 698, 195
P. 406; SOWERS V. WELLS, 150 KAN. 630, 635, 95 P.2D 281, 284-285;
BERGERON, PETITIONER, 220 MASS. 472, 476, 107 N.E. 1007, 1008. 

FN4  STANSBURY, REPORT OF THE TRIAL OF JAMES H. PECK (1833), 445,
455. 

FN5  ID., AT 450. 

FN6  "AND BE IT FURTHER ENACTED, THAT IF ANY PERSON OR PERSONS SHALL,
CORRUPTLY, OR BY THREATS OR FORCE, ENDEAVOUR TO INFLUENCE, INTIMIDATE,
OR IMPEDE ANY JUROR, WITNESS, OR OFFICER, IN ANY COURT OF THE UNITED
STATES, IN THE DISCHARGE OF HIS DUTY, OR SHALL, CORRUPTLY, OR BY
THREATS OR FORCE, OBSTRUCT, OR IMPEDE, OR ENDEAVOUR TO OBSTRUCT OR
IMPEDE, THE DUE ADMINISTRATION OF JUSTICE THEREIN, EVERY PERSON OR
PERSONS, SO OFFENDING, SHALL BE LIABLE TO PROSECUTION THEREFOR, BY
INDICTMENT, AND SHALL, ON CONVICTION THEREOF, BE PUNISHED, BY FINE NOT
EXCEEDING FIVE HUNDRED DOLLARS, OR BY IMPRISONMENT, NOT EXCEEDING THREE
MONTHS, OR BOTH, ACCORDING TO THE NATURE AND AGGRAVATION OF THE
OFFENCE."  4 STAT. 488. 

FN7  EX PARTE BRADLEY, 7 WALL.  364, REQUIRES NO DIFFERENT RESULT. 
THE COURT THERE HELD THAT AN ATTORNEY COULD NOT BE DISBARRED SOLELY ON
A SHOWING OF A CONTEMPT COMMITTED BEFORE ANOTHER COURT.  THE COURT DID
USE BROAD LANGUAGE THERE AS TO THE POWER OF COURTS TO PUNISH ATTORNEYS
AS OFFICERS OF COURTS FOR MISBEHAVIOR IN THE PRACTICE OF THE
PROFESSION.  THE STATEMENTS IN EX PARTE BRADLEY WENT SO FAR AS TO SAY
THAT LAWYERS BECAME SUBJECT TO THE SUMMARY JURISDICTION OF COURTS "FOR
THE COMMISSION OF ANY OTHER ACT OF OFFICIAL OR PERSONAL DISHONESTY AND
OPPRESSION."  ID., AT 374.  HOWEVER QUESTIONABLE THOSE STATEMENTS MAY
BE, THEY WERE NOT MADE, AS THE COURT POINTED OUT, WITH RESPECT TO A
COURT'S POWER TO PUNISH CONTEMPTS.  THE COURT WAS REFERRING TO THE
GENERALLY EXERCISED POWERS OF COURTS IN THAT DAY TO DISIPLINE
ATTORNEYS.  AS SAID BY THE COURT LATER IN EX PARTE ROBINSON, 19 WALL. 
505, 512, "THE POWER TO DISBAR AN ATTORNEY PROCEEDS UPON VERY DIFFERENT
GROUNDS" FROM THOSE WHICH SUPPORT A COURT'S POWER TO PUNISH FOR
CONTEMPT. 

MR. JUSTICE REED CONCURS IN THE JUDGMENT SOLELY ON THE GROUND THAT
THE CIRCUMSTANCES LEADING TO THE ENACTMENT OF THIS STATUTE DICTATE THE
COURT'S OTHERWISE UNIQUE READING OF THE TERM "OFFICERS OF THE COURT." 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















UNITED STATES V. CONTRACT STEEL CARRIERS, INC. 350 U.S. 409 


NO. 102.  ARGUED FEBRUARY 29, 1956 - DECIDED MARCH 12, 1956 - 128 F.
SUPP. 25, AFFIRMED. 


1.  IF A REQUIREMENT THAT THE SERVICES OF A "CONTRACT CARRIER BY MOTOR
VEHICLE," WITHIN THE MEANING OF 49 U.S.C. SEC. 303(A)(15), MUST BE
INDIVIDUAL AND SPECIALIZED IS TO BE READ INTO THIS SECTION BY ITS
LEGISLATIVE HISTORY, THE REQUIREMENT WAS SATISFIED IN THIS CASE, SINCE
THIS CARRIER HAULS ONLY STRICTLY LIMITED TYPES OF STEEL PRODUCTS UNDER
INDIVIDUAL AND CONTINUING CONTRACTUAL AGREEMENTS WITH A COMPARATIVELY
SMALL NUMBER OF SHIPPERS THROUGHOUT A LARGE AREA.  P. 411. 

2.  THE FACT THAT THIS CONTRACT CARRIER HAS ACTIVELY SOLICITED
BUSINESS WITHIN THE BOUNDS OF ITS LICENSE DOES NOT SUPPORT A FINDING BY
THE INTERSTATE COMMERCE COMMISSION THAT THE CARRIER WAS "HOLDING ITSELF
OUT TO THE GENERAL PUBLIC" AS A COMMON CARRIER.  PP. 411-412. 

UNITED STATES ET AL. V. CONTRACT STEEL CARRIERS, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF INDIANA. 

PER CURIAM. 

THE INTERSTATE COMMERCE COMMISSION BRINGS AN APPEAL FROM A THREE
JUDGE DISTRICT COURT, 49 U.S.C. SEC. 305(G), THAT REVERSED AN ORDER OF
THE ICC, 62 M.C.C. 413, DIRECTING APPELLEE CONTRACT STEEL CARRIERS TO
CEASE OPERATIONS AS A COMMON CARRIER BY MOTOR VEHICLE.  128 F. SUPP.
25. 

APPELLEE HOLDS LICENSES COVERING DIFFERENT AREAS SURROUNDING CHICAGO,
HOUSTON, AND ST. LOUIS.  AS THESE ARE SUBSTANTIALLY IN THE SAME FORM, A
SINGLE ILLUSTRATION WILL SUFFICE.  IT COVERS CONTRACT CARRIAGE OF: 

"STEEL ARTICLES, AND SUCH MATERIALS AS ARE USED OR USEFUL IN HIGHWAY
CONSTRUCTION PROJECTS, EXCEPT CEMENT, ROCK, SAND, AND GRAVEL, OVER
IRREGULAR ROUTES, IN CONNECTION WITH SAID CARRIER'S PRESENTLY
AUTHORIZED OPERATIONS: 

"FROM POINTS AND PLACES IN THE CHICAGO, ILL. COMMERCIAL ZONE, AS
DEFINED BY THE COMMISSION IN 1 M.C.C. 673, TO POINTS AND PLACES IN
ARKANSAS, IOWA, KANSAS, MISSOURI, OKLAHOMA, AND TEXAS, AND RETURN WITH
NO TRANSPORTATION FOR COMPENSATION."  NO. MC 96505 SUB 6. 

THE FACTS ARE FULLY SET OUT IN THE REPORTS REFERRED TO ABOVE.  IN
ESSENCE THEY SHOW THAT APPELLEE, BY ACTIVE SOLICITATION FROM 1951 TO
1954 IN THE AREAS MENTIONED, HAD SECURED 69 CONTRACTS TO SERVE
SHIPPERS.  THESE HAD BEEN FILED WITH THE COMMISSION AND THERE IS NO
CHARGE OF ANY VIOLATION OF THE RESTRICTIONS OF THE LICENSE OR THE
REQUIREMENTS OF INDIVIDUAL CONTRACTS EXCEPT THAT THE APPELLEE HAS HELD
ITSELF OUT BY ITS ACTIONS TO BE A COMMON CARRIER.  (FN1) 

THE COMMISSION FOUND THIS HOLDING-OUT FROM AN ADVERTISEMENT, RUN
WITHOUT LEGAL ADVICE AND SINCE DISCONTINUED, OFFERING ITS
TRANSPORTATION SERVICE WITHOUT MENTIONING WHETHER IT WAS CONTRACT OR
COMMON CARRIAGE. 

IT WAS ALSO CHARGED THAT: 

"  ...  THE GREAT INCREASE IN THE NUMBER OF CONTRACTS HELD BY IT ARE
ATTRIBUTABLE IN LARGE DEGREE TO AGGRESSIVE SALES ACTIVITIES AND
AFFIRMATIVE PRECONTRACT TRAFFIC SOLICITATION, WHICH AMOUNTS TO A PUBLIC
OFFER OR HOLDING OUT.  IN THIS CONNECTION, IT IS ALSO ASSERTED THAT THE
DEFENDANT MAINTAINED AN EMPLOYEE IN DES MOINES, IOWA, WHOSE DUTIES
INCLUDED THE ACTIVE SOLICITATION OF TRAFFIC  ...  . THERE IS EVIDENCE
THAT BUSINESS HAS BEEN LOST BY INTERVENERS AFTER A REPRESENTATIVE OF
DEFENDANT CALLED UPON RECEIVERS OF STEEL IN IOWA, LEAVING A COPY OF
DEFENDANT'S SCHEDULE OF MINIMUM RATES AND CHARGES, AND A COPY OF A
BLANK CONTRACT TO BE EXECUTED BY SUCH SHIPPERS."  62 M.C.C. 413, 414
415. 

IT WAS CONCLUDED BY THE COMMISSION: 

"ALTHOUGH THE FACTS HERE ARE MEAGER IN SOME RESPECTS, THEY REVEAL A
PATTERN OF EXTRAORDINARY EXPANSION IN A PERIOD OF APPROXIMATELY 8
MONTHS AND AN EASY TURNOVER OF CONTRACTS THEREAFTER.  WE BELIEVE THAT
THERE IS AMPLE EVIDENCE TO SHOW THAT THIS EXPANSION WAS BROUGHT ABOUT,
TO SOME EXTENT AT LEAST, BY INDISCRIMINATE SOLICITATION AND
ADVERTISING, AMONG OTHER THINGS."  ID., AT 421. 

IN CRAIG CONTRACT CARRIER APPLICATION, 31 M.C.C. 705, 712, THE ICC
STATED THAT THE SERVICES OF A CONTRACT CARRIER MUST BE INDIVIDUAL AND
SPECIALIZED.  A REQUIREMENT OF SPECIALIZATION IS SUPPORTED BY
RESPECTABLE LEGISLATIVE HISTORY.  SEE, E.G., 79 CONG.  REC. 5651.  IN
THIS CASE THE ICC FOUND THAT APPELLEE HAD NOT SUFFICIENTLY SPECIALIZED
ITS OPERATION.  HOWEVER, WE CONCLUDE THAT IF SPECIALIZATION IS TO BE
READ INTO 49 U.S.C.  SEC. 303(A)(15) BY THE LEGISLATIVE HISTORY, IT IS
SATISFIED HERE SINCE APPELLEE HAULS ONLY STRICTLY LIMITED TYPES OF
STEEL PRODUCTS UNDER INDIVIDUAL AND CONTINUING CONTRACTUAL AGREEMENTS
WITH A COMPARATIVELY SMALL NUMBER OF SHIPPERS THROUGHOUT A LARGE AREA. 

WE HOLD ALSO THAT THE FACT THAT APPELLEE HAS ACTIVELY SOLICITED
BUSINESS WITHIN THE BOUNDS OF HIS LICENSE DOES NOT SUPPORT A FINDING
THAT IT WAS "HOLDING ITSELF OUT TO THE GENERAL PUBLIC."  A CONTRACT
CARRIER IS FREE TO AGGRESSIVELY SEARCH FOR NEW BUSINESS WITHIN THE
LIMITS OF HIS LICENSE.  (FN2)  BECAUSE THE ICC'S ORDER IS NOT SUPPORTED
BY EVIDENCE IN THE RECORD AND IS CONTRARY TO THE DEFINITIONS OF
CONTRACT AND COMMON CARRIERS IN SEC. 303(14) AND (15), WE AFFIRM THE
DISTRICT COURT.  AFFIRMED. 

FN1  A COMMON CARRIER IS ONE "WHICH HOLDS ITSELF OUT TO THE GENERAL
PUBLIC TO ENGAGE IN THE TRANSPORTATION BY MOTOR VEHICLE  ...  OF
PASSENGERS OR PROPERTY."  A CONTRACT CARRIER IS ANY "PERSON WHICH,
UNDER INDIVIDUAL CONTRACTS OR AGREEMENTS, ENGAGES IN "SUCH
TRANSPORTATION.  49 U.S.C. SEC. 303(A)(14), (15). 

FN2  "PROVIDED, HOWEVER, THAT NO TERMS, CONDITIONS, OR LIMITATIONS
SHALL RESTRICT THE RIGHT OF THE CARRIER TO SUBSTITUTE OR ADD CONTRACTS
WITHIN THE SCOPE OF THE PERMIT, OR TO ADD TO HIS OR ITS EQUIPMENT AND
FACILITIES, WITHIN THE SCOPE OF THE PERMIT, AS THE DEVELOPMENT OF THE
BUSINESS AND THE DEMANDS OF THE PUBLIC MAY REQUIRE."  49 U.S.C. SEC.
309(B). 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN JOINS, DISSENTING. 

THE MOTOR CARRIER ACT, 49 STAT. 543, 544, 49 U.S.C. SEC. 303(A)(14),
GIVES TO THE TERM "COMMON CARRIER BY MOTOR VEHICLE" THE CLASSIC MEANING
THAT "COMMON CARRIER" HAD ACQUIRED AND MAINTAINED DURING THE COURSE OF
CENTURIES.  IN SHORT, THE TEST OF WHAT IS A "COMMON CARRIER" UNDER THIS
ACT IS WHAT LEGAL HISTORY HAS ESTABLISHED AS THE TEST, AND WE DO NOT
FIND THAT THE INTERSTATE COMMERCE COMMISSION HAS DEPARTED FROM THIS
TEST.  WE CANNOT BELIEVE THAT IF THE EVIDENCE, AS DISCLOSED BY THE
RECORD, WHICH NEED NOT BE RECITED, HAD APPEARED IN A COMMON-LAW ACTION
AGAINST THE RESPONDENT, A COURT WOULD BE JUSTIFIED IN TAKING THE CASE
FROM THE JURY, AND THAT IF THE JURY HAD FOUND AGAINST THE RESPONDENT,
ITS VERDICT WOULD NOT BE ALLOWED TO STAND.  THE FINDING BY THE
INTERSTATE COMMERCE COMMISSION THAT THE RESPONDENT WAS A "COMMON
CARRIER," AND THEREFORE SUBJECT TO THE REGULATORY PROVISIONS OF THE
ACT, OUGHT NOT TO HAVE LESS WEIGHT THAN A JURY'S VERDICT.  ACCORDINGLY,
OTHER ISSUES RAISED IN THE CASE ARE NOT REACHED, AND WE WOULD REVERSE
THE JUDGMENT BELOW. 
..END :







FLORIDA, HAWKINS V. BOARD OF CONTROL OF FLORIDA 350 U.S. 413 


NO. 624.  DECIDED MARCH 12, 1956 - 83 SO. 2D 20, CERTIORARI DENIED - 60
SO. 2D 162, JUDGMENT VACATED AND CASE REMANDED. 


A NEGRO IS ENTITLED TO PROMPT ADMISSION TO A GRADUATE PROFESSIONAL
SCHOOL OF A STATE, UNDER THE RULES AND REGULATIONS APPLICABLE TO OTHER
QUALIFIED CANDIDATES.  P. 414. 

FLORIDA EX REL. HAWKINS V. BOARD OF CONTROL OF FLORIDA ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE PETITION FOR CERTIORARI IS DENIED. 

ON MAY 24, 1954, WE ISSUED A MANDATE IN THIS CASE TO THE SUPREME
COURT OF FLORIDA.  347 U.S. 971.  WE DIRECTED THAT THE CASE BE
RECONSIDERED IN LIGHT OF OUR DECISION IN THE SEGREGATION CASES DECIDED
MAY 17, 1954, BROWN V. BOARD OF EDUCATION, 347 U.S. 483.  IN DOING SO,
WE DID NOT IMPLY THAT DECREES INVOLVING GRADUATE STUDY PRESENT THE
PROBLEMS OF PUBLIC ELEMENTARY AND SECONDARY SCHOOLS.  WE HAD
THERETOFORE, IN THREE CASES, ORDERED THE ADMISSION OF NEGRO APPLICANTS
TO GRADUATE SCHOOLS WITHOUT DISCRIMINATION BECAUSE OF COLOR.  SWEATT V.
PAINTER, 339 U.S. 629; SIPUEL V. BOARD OF REGENTS OF THE UNIVERSITY OF
OKLAHOMA, 332 U.S. 631; CF. MCLAURIN V. OKLAHOMA STATE REGENTS FOR
HIGHER EDUCATION, 339 U.S. 637.  THUS, OUR SECOND DECISION IN THE BROWN
CASE, 349 U.S. 294, WHICH IMPLEMENTED THE EARLIER ONE, HAD NO
APPLICATION TO A CASE INVOLVING A NEGRO APPLYING FOR ADMISSION TO A
STATE LAW SCHOOL.  ACCORDINGLY, THE MANDATE OF MAY 24, 1954, IS
RECALLED AND IS VACATED.  IN LIEU THEREOF, THE FOLLOWING ORDER IS
ENTERED: 

PER CURIAM:  THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE
JUDGMENT IS VACATED AND THE CASE IS REMANDED ON THE AUTHORITY OF THE
SEGREGATION CASES DECIDED MAY 17, 1954, BROWN V. BOARD OF EDUCATION,
347 U.S. 483.  AS THIS CASE INVOLVES THE ADMISSION OF A NEGRO TO A
GRADUATE PROFESSIONAL SCHOOL, THERE IS NO REASON FOR DELAY.  HE IS
ENTITLED TO PROMPT ADMISSION UNDER THE RULES AND REGULATIONS APPLICABLE
TO OTHER QUALIFIED CANDIDATES.  SWEATT V. PAINTER, 339 U.S. 629; SIPUEL
V. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA, 332 U.S. 631; CF.
MCLAURIN V. OKLAHOMA STATE REGENTS FOR HIGHER EDUCATION, 339 U.S. 637. 

..END :







COSTELLO V. UNITED STATES 350 U.S. 359 


NO. 72.  ARGUED JANUARY 16-17, 1956 - DECIDED MARCH 5, 1956 - 221 F.2D
668, AFFIRMED. 


A DEFENDANT IN A CRIMINAL CASE IN A FEDERAL COURT MAY BE REQUIRED TO
STAND TRIAL AND HIS CONVICTION MAY BE SUSTAINED WHERE ONLY HEARSAY
EVIDENCE WAS PRESENTED TO THE GRAND JURY WHICH INDICTED HIM.  PP. 359
364. 

(A)  AN INDICTMENT BASED SOLELY ON HEARSAY EVIDENCE DOES NOT VIOLATE
THE PROVISION OF THE FIFTH AMENDMENT THAT "NO PERSON SHALL BE HELD TO
ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A
PRESENTMENT OR INDICTMENT OF A GRAND JURY  ...  ."  PP. 361-363. 

(B)  IN THE EXERCISE OF ITS POWER TO SUPERVISE THE ADMINISTRATION OF
JUSTICE IN THE FEDERAL COURTS, THIS COURT DECLINES TO ESTABLISH A RULE
PERMITTING DEFENDANTS IN CRIMINAL CASES TO CHALLENGE INDICTMENTS ON THE
GROUND THAT THEY ARE NOT SUPPORTED BY ADEQUATE OR COMPETENT EVIDENCE. 
PP. 363-364. 

COSTELLO V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO CONSIDER A SINGLE QUESTION:
"MAY A DEFENDANT BE REQUIRED TO STAND TRIAL AND A CONVICTION BE
SUSTAINED WHERE ONLY HEARSAY EVIDENCE WAS PRESENTED TO THE GRAND JURY
WHICH INDICTED HIM?"  350 U.S. 819. 

PETITIONER, FRANK COSTELLO, WAS INDICTED FOR WILFULLY ATTEMPTING TO
EVADE PAYMENT OF INCOME TAXES DUE THE UNITED STATES FOR THE YEARS 1947,
1948 AND 1949.  (FN1)  THE CHARGE WAS THAT PETITIONER FALSELY AND
FRAUDULENTLY REPORTED LESS INCOME THAN HE AND HIS WIFE ACTUALLY
RECEIVED DURING THE TAXABLE YEARS IN QUESTION.  PETITIONER PROMPTLY
FILED A MOTION FOR INSPECTION OF THE MINUTES OF THE GRAND JURY AND FOR
A DISMISSAL OF THE INDICTMENT.  HIS MOTION WAS BASED ON AN AFFIDAVIT
STATING THAT HE WAS FIRMLY CONVINCED THERE COULD HAVE BEEN NO LEGAL OR
COMPETENT EVIDENCE BEFORE THE GRAND JURY WHICH INDICTED HIM SINCE HE
HAD REPORTED ALL HIS INCOME AND PAID ALL TAXES DUE.  THE MOTION WAS
DENIED.  AT THE TRIAL WHICH FOLLOWED THE GOVERNMENT OFFERED EVIDENCE
DESIGNED TO SHOW INCREASES IN COSTELLO'S NET WORTH IN AN ATTEMPT TO
PROVE THAT HE HAD RECEIVED MORE INCOME DURING THE YEARS IN QUESTION
THAN HE HAD REPORTED.  (FN2)  TO ESTABLISH ITS CASE THE GOVERNMENT
CALLED AND EXAMINED 144 WITNESSES AND INTRODUCED 368 EXHIBITS.  ALL OF
THE TESTIMONY AND DOCUMENTS RELATED TO BUSINESS TRANSACTIONS AND
EXPENDITURES BY PETITIONER AND HIS WIFE.  THE PROSECUTION CONCLUDED ITS
CASE BY CALLING THREE GOVERNMENT AGENTS.  THEIR INVESTIGATIONS HAD
PRODUCED THE EVIDENCE USED AGAINST PETITIONER AT THE TRIAL.  THEY WERE
ALLOWED TO SUMMARIZE THE VAST AMOUNT OF EVIDENCE ALREADY HEARD AND TO
INTRODUCE COMPUTATIONS SHOWING, IF CORRECT, THAT PETITIONER AND HIS
WIFE HAD RECEIVED FAR GREATER INCOME THAN THEY HAD REPORTED.  WE HAVE
HELD SUCH SUMMARIZATIONS ADMISSIBLE IN A "NET WORTH" CASE LIKE THIS. 
UNITED STATES V. JOHNSON, 319 U.S. 503. 

COUNSEL FOR PETITIONER ASKED EACH GOVERNMENT WITNESS AT THE TRIAL
WHETHER HE HAD APPEARED BEFORE THE GRAND JURY WHICH RETURNED THE
INDICTMENT.  THIS CROSS-EXAMINATION DEVELOPED THE FACT THAT THE THREE
INVESTIGATING OFFICERS HAD BEEN THE ONLY WITNESSES BEFORE THE GRAND
JURY.  AFTER THE GOVERNMENT CONCLUDED ITS CASE, PETITIONER AGAIN MOVED
TO DISMISS THE INDICTMENT ON THE GROUND THAT THE ONLY EVIDENCE BEFORE
THE GRAND JURY WAS "HEARSAY," SINCE THE THREE OFFICERS HAD NO FIRSTHAND
KNOWLEDGE OF THE TRANSACTIONS UPON WHICH THEIR COMPUTATIONS WERE
BASED.  NEVERTHELESS THE TRIAL COURT AGAIN REFUSED TO DISMISS THE
INDICTMENT, AND PETITIONER WAS CONVICTED.  THE COURT OF APPEALS
AFFIRMED, (FN3) HOLDING THAT THE INDICTMENT WAS VALID EVEN THOUGH THE
SOLE EVIDENCE BEFORE THE GRAND JURY WAS HEARSAY.  (FN4)  PETITIONER
HERE URGES:  (1) THAT AN INDICTMENT BASED SOLELY ON HEARSAY EVIDENCE
VIOLATES THAT PART OF THE FIFTH AMENDMENT PROVIDING THAT "NO PERSON
SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME,
UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY ...  ."  AND (2)
THAT IF THE FIFTH AMENDMENT DOES NOT INVALIDATE AN INDICTMENT BASED
SOLELY ON HEARSAY WE SHOULD NOW LAY DOWN SUCH A RULE FOR THE GUIDANCE
OF FEDERAL COURTS.  SEE MCNABB V. UNITED STATES, 318 U.S. 332, 340
341. 

THE FIFTH AMENDMENT PROVIDES THAT FEDERAL PROSECUTIONS FOR CAPITAL OR
OTHERWISE INFAMOUS CRIMES MUST BE INSTITUTED BY PRESENTMENTS OR
INDICTMENTS OF GRAND JURIES.  BUT NEITHER THE FIFTH AMENDMENT NOR ANY
OTHER CONSTITUTIONAL PROVISION PRESCRIBES THE KIND OF EVIDENCE UPON
WHICH GRAND JURIES MUST ACT.  THE GRAND JURY IS AN ENGLISH INSTITUTION,
BROUGHT TO THIS COUNTRY BY THE EARLY COLONISTS AND INCORPORATED IN THE
CONSTITUTION BY THE FOUNDERS.  THERE IS EVERY REASON TO BELIEVE THAT
OUR CONSTITUTIONAL GRAND JURY WAS INTENDED TO OPERATE SUBSTANTIALLY
LIKE ITS ENGLISH PROGENITOR.  THE BASIC PURPOSE OF THE ENGLISH GRAND
JURY WAS TO PROVIDE A FAIR METHOD FOR INSTITUTING CRIMINAL PROCEEDINGS
AGAINST PERSONS BELIEVED TO HAVE COMMITTED CRIMES.  GRAND JURORS WERE
SELECTED FROM THE BODY OF THE PEOPLE AND THEIR WORK WAS NOT HAMPERED BY
RIGID PROCEDURAL OR EVIDENTIAL RULES.  IN FACT, GRAND JURORS COULD ACT
ON THEIR OWN KNOWLEDGE AND WERE FREE TO MAKE THEIR PRESENTMENTS OR
INDICTMENTS ON SUCH INFORMATION AS THEY DEEMED SATISFACTORY.  DESPITE
ITS BROAD POWER TO INSTITUTE CRIMINAL PROCEEDINGS THE GRAND JURY GREW
IN POPULAR FAVOR WITH THE YEARS.  IT ACQUIRED AN INDEPENDENCE IN
ENGLAND FREE FROM CONTROL BY THE CROWN OR JUDGES.  ITS ADOPTION IN OUR
CONSTITUTION AS THE SOLE METHOD FOR PREFERRING CHARGES IN SERIOUS
CRIMINAL CASES SHOWS THE HIGH PLACE IT HELD AS AN INSTRUMENT OF
JUSTICE.  AND IN THIS COUNTRY AS IN ENGLAND OF OLD THE GRAND JURY HAS
CONVENED AS A BODY OF LAYMEN, FREE FROM TECHNICAL RULES, ACTING IN
SECRET, PLEDGED TO INDICT NO ONE BECAUSE OF PREJUDICE AND TO FREE NO
ONE BECAUSE OF SPECIAL FAVOR.  AS LATE AS 1927 AN ENGLISH HISTORIAN
COULD SAY THAT ENGLISH GRAND JURIES WERE STILL FREE TO ACT ON THEIR OWN
KNOWLEDGE IF THEY PLEASED TO DO SO.  (FN5)  AND IN 1852 MR. JUSTICE
NELSON ON CIRCUIT COULD SAY "NO CASE HAS BEEN CITED, NOR HAVE WE BEEN
ABLE TO FIND ANY, FURNISHING AN AUTHORITY FOR LOOKING INTO AND REVISING
THE JUDGMENT OF THE GRAND JURY UPON THE EVIDENCE, FOR THE PURPOSE OF
DETERMINING WHETHER OR NOT THE FINDING WAS FOUNDED UPON SUFFICIENT
PROOF  ...  ."  UNITED STATES V. REED, 27 FED. CAS. 727, 738.  (FN6) 

IN HOLT V. UNITED STATES, 218 U.S. 245, THIS COURT HAD TO DECIDE
WHETHER AN INDICTMENT SHOULD BE QUASHED BECAUSE SUPPORTED IN PART BY
INCOMPETENT EVIDENCE.  ASIDE FROM THE INCOMPETENT EVIDENCE "THERE WAS
VERY LITTLE EVIDENCE AGAINST THE ACCUSED."  THE COURT REFUSED TO HOLD
THAT SUCH AN INDICTMENT SHOULD BE QUASHED, POINTING OUT THAT "THE
ABUSES OF CRIMINAL PRACTICE WOULD BE ENHANCED IF INDICTMENTS COULD BE
UPSET ON SUCH A GROUND."  218 U.S., AT 248.  THE SAME THING IS TRUE
WHERE AS HERE ALL THE EVIDENCE BEFORE THE GRAND JURY WAS IN THE NATURE
OF "HEARSAY."  IF INDICTMENTS WERE TO BE HELD OPEN TO CHALLENGE ON THE
GROUND THAT THERE WAS INADEQUATE OR INCOMPETENT EVIDENCE BEFORE THE
GRAND JURY, THE RESULTING DELAY WOULD BE GREAT INDEED.  THE RESULT OF
SUCH A RULE WOULD BE THAT BEFORE TRIAL ON THE MERITS A DEFENDANT COULD
ALWAYS INSIST ON A KIND OF PRELIMINARY TRIAL TO DETERMINE THE
COMPETENCY AND ADEQUACY OF THE EVIDENCE BEFORE THE GRAND JURY.  THIS IS
NOT REQUIRED BY THE FIFTH AMENDMENT.  AN INDICTMENT RETURNED BY A
LEGALLY CONSTITUTED AND UNBIASED GRAND JURY, (FN7) LIKE AN INFORMATION
DRAWN BY THE PROSECUTOR, IF VALID ON ITS FACE, IS ENOUGH TO CALL FOR
TRIAL OF THE CHARGE ON THE MERITS.  THE FIFTH AMENDMENT REQUIRES
NOTHING MORE. 

PETITIONER URGES THAT THIS COURT SHOULD EXERCISE ITS POWER TO
SUPERVISE THE ADMINISTRATION OF JUSTICE IN FEDERAL COURTS AND ESTABLISH
A RULE PERMITTING DEFENDANTS TO CHALLENGE INDICTMENTS ON THE GROUND
THAT THEY ARE NOT SUPPORTED BY ADEQUATE OR COMPETENT EVIDENCE.  NO
PERSUASIVE REASONS ARE ADVANCED FOR ESTABLISHING SUCH A RULE.  IT WOULD
RUN COUNTER TO THE WHOLE HISTORY OF THE GRAND JURY INSTITUTION, IN
WHICH LAYMEN CONDUCT THEIR INQUIRIES UNFETTERED BY TECHNICAL RULES. 
NEITHER JUSTICE NOR THE CONCEPT OF A FAIR TRIAL REQUIRES SUCH A
CHANGE.  IN A TRIAL ON THE MERITS, DEFENDANTS ARE ENTITLED TO A STRICT
OBSERVANCE OF ALL THE RULES DESIGNED TO BRING ABOUT A FAIR VERDICT. 
DEFENDANTS ARE NOT ENTITLED, HOWEVER, TO A RULE WHICH WOULD RESULT IN
INTERMINABLE DELAY BUT ADD NOTHING TO THE ASSURANCE OF A FAIR TRIAL. 
AFFIRMED. 

FN1  THE INDICTMENT WAS BASED ON SEC. 145(B) OF THE INTERNAL REVENUE
CODE OF 1939.  53 STAT. 63.  THERE WAS ALSO A COUNT IN THE INDICTMENT
FOR THE YEAR 1946 BUT PETITIONER WAS FOUND NOT GUILTY OF THIS CHARGE. 

FN2  FOR DISCUSSIONS OF THE "NET WORTH METHOD," SEE HOLLAND V. UNITED
STATES, 348 U.S. 121; FRIEDBERG V. UNITED STATES, 348 U.S. 142; SMITH
V. UNITED STATES, 348 U.S. 147; AND UNITED STATES V. CALDERON, 348 U.S.
160. 

FN3  221 F.2D 668.  THE COURT OF APPEALS REVERSED PETITIONER'S
CONVICTION ON THE 1947 COUNT ON GROUNDS NOT MATERIAL HERE. 

FN4  VARYING VIEWS HAVE BEEN EXPRESSED CONCERNING WHETHER INDICTMENTS
MAY BE CHALLENGED BECAUSE BASED IN WHOLE OR IN PART ON INCOMPETENT
EVIDENCE.  SEE, E.G., CHADWICK V. UNITED STATES, 141 F. 225; UNITED
STATES V. VIOLON, 173 F. 501; NANFITO V. UNITED STATES, 20 F.2D 376,
378; BRADY V. UNITED STATES, 24 F.2D 405; BANKS V. UNITED STATES, 204
F.2D 666; ZACHER V. UNITED STATES, 227 F.2D 219.  SEE ALSO CASES
COLLECTED IN 62 HARV. L. REV. 111; 38 YALE L.J. 680; 71 CENT. L.J. 9;
JOYCE, INDICTMENTS (2D ED., BLAKEMORE, 1924), 166-168; NOTE, 24 A.L.R.
1432. 

FN5  1 HOLDSWORTH, HISTORY OF ENGLISH LAW (1927), 323. 

FN6  AS TO THE DEVELOPMENT OF THE GRAND JURY AS AN INSTITUTION HERE
AND IN ENGLAND, SEE HALE V. HENKEL, 201 U.S. 43, 59; BLAIR V. UNITED
STATES, 250 U.S. 273, 282; MCGRAIN V. DAUGHERTY, 273 U.S. 135, 157;
UNITED STATES V. JOHNSON, 319 U.S. 503; 4 BLACKSTONE COMMENTARIES 301
ET SEQ.; 1 POLLOCK AND MAITLAND, HISTORY OF ENGLISH LAW (1895), 130; 1
HOLDSWORTH, HISTORY OF ENGLISH LAW (1927), 312-323; MORSE, A SURVEY OF
THE GRAND JURY SYSTEM, 10 ORE.  L. REV. 101, 217, 295. 

FN7  SEE, E.G., PIERRE V. LOUISIANA, 306 U.S. 354. 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BURTON, CONCURRING. 

I AGREE WITH THE DENIAL OF THE MOTION TO QUASH THE INDICTMENT.  IN MY
VIEW, HOWEVER, THIS CASE DOES NOT JUSTIFY THE BREADTH OF THE
DECLARATIONS MADE BY THE COURT.  I ASSUME THAT THIS COURT WOULD NOT
PRECLUDE AN EXAMINATION OF GRAND-JURY ACTION TO ASCERTAIN THE EXISTENCE
OF BIAS OR PREJUDICE IN AN INDICTMENT.  LIKEWISE, IT SEEMS TO ME THAT
IF IT IS SHOWN THAT THE GRAND JURY HAD BEFORE IT NO SUBSTANTIAL OR
RATIONALLY PERSUASIVE EVIDENCE UPON WHICH TO BASE ITS INDICTMENT, THAT
INDICTMENT SHOULD BE QUASHED.  TO HOLD A PERSON TO ANSWER TO SUCH AN
EMPTY INDICTMENT FOR A CAPITAL OR OTHERWISE INFAMOUS FEDERAL CRIME ROBS
THE FIFTH AMENDMENT OF MUCH OF ITS PROTECTIVE VALUE TO THE PRIVATE
CITIZEN. 

HERE, AS IN HOLT V. UNITED STATES, 218 U.S. 245, SUBSTANTIAL AND
RATIONALLY PERSUASIVE EVIDENCE APPARENTLY WAS PRESENTED TO THE GRAND
JURY.  WE MAY FAIRLY ASSUME THAT THE EVIDENCE BEFORE THAT JURY INCLUDED
MUCH OF THE TESTIMONY LATER GIVEN AT THE TRIAL BY THE THREE GOVERNMENT
AGENTS WHO SAID THAT THEY HAD TESTIFIED BEFORE THE GRAND JURY.  AT THE
TRIAL, THEY SUMMARIZED FINANCIAL TRANSACTIONS OF THE ACCUSED ABOUT
WHICH THEY WERE NOT QUALIFIED TO TESTIFY OF THEIR OWN KNOWLEDGE.  TO
USE JUSTICE HOLMES' PHRASE IN THE HOLT CASE, SUCH TESTIMONY, STANDING
ALONE, WAS "INCOMPETENT BY CIRCUMSTANCES" (SUPRA, AT 248), AND YET IT
WAS RATIONALLY PERSUASIVE OF THE CRIME CHARGED AND PROVIDED A
SUBSTANTIAL BASIS FOR THE INDICTMENT.  AT THE TRIAL, WITH PRELIMINARY
TESTIMONY LAYING THE FOUNDATION FOR IT, THE SAME TESTIMONY CONSTITUTED
AN IMPORTANT PART OF THE COMPETENT EVIDENCE UPON WHICH THE CONVICTION
WAS OBTAINED. 

TO SUSTAIN THIS INDICTMENT UNDER THE ABOVE CIRCUMSTANCES IS WELL
ENOUGH, BUT I AGREE WITH JUDGE LEARNED HAND THAT "IF IT APPEARED THAT
NO EVIDENCE HAD BEEN OFFERED THAT RATIONALLY ESTABLISHED THE FACTS, THE
INDICTMENT OUGHT TO BE QUASHED; BECAUSE THEN THE GRAND JURY WOULD HAVE
IN SUBSTANCE ABDICATED."  221 F.2D 668, 677.  ACCORDINGLY, I CONCUR IN
THIS JUDGMENT, BUT DO SO FOR THE REASONS STATED IN THE OPINION OF THE
COURT OF APPEALS AND SUBJECT TO THE LIMITATIONS THERE EXPRESSED.  SEE
ALSO, NOTES, 62 HARV. L. REV. 111; 65 YALE L.J. 390. 
..END :








GREENWOOD V. UNITED STATES 350 U.S. 366 


NO. 460.  ARGUED JANUARY 25, 1956 - DECIDED MARCH 5, 1956 - 219 F.2D
376, AFFIRMED. 


ACTING UNDER 18 U.S.C. SECS. 4244-4248, A FEDERAL DISTRICT COURT HELD
A HEARING ON THE SANITY OF PETITIONER, WHO HAD BEEN INDICTED FOR
ROBBERY OF A POST OFFICE AND FELONIOUS ASSAULT ON A POSTAL EMPLOYEE AND
HAD BEEN FOUND BY AUTHORITIES OF A MEDICAL CENTER FOR FEDERAL PRISONERS
TO BE INSANE AND UNLIKELY TO RECOVER IN THE NEAR FUTURE.  AFTER
CONSIDERING CONFLICTING TESTIMONY AND REPORTS OF PSYCHIATRISTS, THE
COURT FOUND THAT PETITIONER WAS INSANE AND SO MENTALLY INCOMPETENT THAT
HE COULD NOT STAND TRIAL; THAT, IF RELEASED, HE PROBABLY WOULD ENDANGER
THE SAFETY OF THE OFFICERS, PROPERTY, OR OTHER INTERESTS OF THE UNITED
STATES; AND THAT NO SUITABLE ARRANGEMENTS FOR HIS CUSTODY AND CARE,
OTHER THAN COMMITMENT TO THE CUSTODY OF THE ATTORNEY GENERAL, WERE
AVAILABLE.  THE COURT, THEREFORE, COMMITTED PETITIONER TO THE CUSTODY
OF THE ATTORNEY GENERAL UNTIL HIS SANITY SHOULD BE RESTORED, OR HIS
MENTAL CONDITION SO IMPROVED THAT, IF RELEASED, HE WOULD NOT ENDANGER
THE SAFETY OF THE OFFICERS, PROPERTY, OR OTHER INTERESTS OF THE UNITED
STATES, OR UNTIL SUITABLE ARRANGEMENTS COULD BE MADE FOR HIS CUSTODY
AND CARE BY THE STATE OF HIS RESIDENCE.  HELD: THE DISTRICT COURT'S
ACTION IS SUSTAINED.  PP. 367-376. 

(A)  THE STATUTE DEALS NOT ONLY WITH PROBLEMS OF TEMPORARY MENTAL
DISORDER BUT ALSO WITH MENTAL DISABILITY WHICH SEEMS MORE THAN
TEMPORARY.  PP. 373-374. 

(B)  AS HERE CONSTRUED, THE STATUTE IS WITHIN THE POWER OF CONGRESS
UNDER THE NECESSARY AND PROPER CLAUSE, ART. I, SEC. 8, CL. 18.  PP. 375
376. 

GREENWOOD V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE CONSTRUCTION AND CONSTITUTIONAL VALIDITY OF
THE ACT OF SEPTEMBER 7, 1949, 63 STAT. 686, NOW CODIFIED IN 18 U.S.C.
SECS. 4244-4248, "TO PROVIDE FOR THE CARE AND CUSTODY OF INSANE PERSONS
CHARGED WITH OR CONVICTED OF OFFENSES AGAINST THE UNITED STATES, AND
FOR OTHER PURPOSES." 

DURING THE PERIOD "AFTER ARREST AND PRIOR TO THE IMPOSITION OF SENTENCE
OR PRIOR TO THE EXPIRATION OF ANY PERIOD OF PROBATION."  (FN1)  SECTION
4245 SETS UP A SIMILAR PROCEDURE FOR PERSONS IN PRISON BELIEVED TO HAVE
BEEN MENTALLY INCOMPETENT AT THE TIME OF THEIR TRIAL WHEN THE ISSUE WAS
NOT RAISED OR DETERMINED BEFORE OR DURING TRIAL.  SECTION 4246 STATES
THAT WHENEVER THE TRIAL COURT SHALL DETERMINE, UNDER SECS. 4244 AND
4245, THAT AN ACCUSED IS OR WAS MENTALLY INCOMPETENT, THE COURT MAY
COMMIT THE ACCUSED TO THE CUSTODY OF THE ATTORNEY GENERAL UNTIL THE
ACCUSED IS MENTALLY COMPETENT TO STAND TRIAL OR UNTIL THE PENDING
CHARGES AGAINST HIM ARE DISPOSED OF ACCORDING TO LAW.  SECTION 4246
FURTHER PROVIDES THAT IF THE COURT, AFTER HEARING AS PROVIDED IN THE
PRECEDING SECS. 4244 AND 4245, FINDS THAT THE CONDITIONS SPECIFIED IN
SEC. 4247 EXIST, THE COMMITMENT SHALL BE GOVERNED BY SEC. 4248.  (FN2)
AND THE PRISON BOARD OF EXAMINERS FINDS HIM INSANE AND A PROBABLE
DANGER TO THE OFFICERS, PROPERTY, OR OTHER INTERESTS OF THE UNITED
STATES, THEN THE COURT SHALL HOLD A HEARING AND, IF IT DETERMINES THAT
THOSE CONDITIONS EXIST, IT MAY COMMIT THE PRISONER TO THE CUSTODY OF
THE ATTORNEY GENERAL.  (FN3) UNDER SEC. 4248 THE COMMITMENT SHALL RUN
UNTIL SANITY IS RESTORED, OR UNTIL THE PRISONER'S CONDITION IS SO
IMPROVED THAT HE WILL NOT ENDANGER THE OFFICERS, PROPERTY, OR OTHER
INTERESTS OF THE UNITED STATES, OR UNTIL SUITABLE ARRANGEMENTS ARE MADE
FOR THE CARE OF THE PRISONER BY HIS STATE OF RESIDENCE - RESERVING TO
THE PRISONER HIS RIGHT TO ESTABLISH HIS ELIGIBILITY TO RELEASE BY WRIT
OF HABEAS CORPUS.  (FN4) 

PETITIONER, A RESIDENT OF CLEVELAND, OHIO, WAS INDICTED ON NOVEMBER
20, 1952, BY A GRAND JURY OF THE WESTERN DISTRICT OF MISSOURI ON TWO
COUNTS, FOR ROBBERY FROM A UNITED STATES POST OFFICE IN KANSAS CITY,
MISSOURI, AND FOR FELONIOUS ASSAULT THERE ON A POSTAL EMPLOYEE.  UNDER
RULE 20 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PETITIONER SIGNED A
WAIVER OF TRIAL IN THE WESTERN DISTRICT OF MISSOURI AND WAS TRANSFERRED
TO THE EASTERN DIVISION OF THE NORTHERN DISTRICT OF OHIO.  ACTING ON
THE SUGGESTION OF APPOINTED COUNSEL, THE DISTRICT JUDGE ORDERED
PETITIONER EXAMINED BY A PSYCHIATRIST.  AFTER A HEARING IN WHICH THE
EXAMINING PSYCHIATRIST TESTIFIED THAT IT WAS DOUBTFUL THAT PETITIONER,
BECAUSE OF HIS MENTAL CONDITION, COULD HAVE FULLY UNDERSTOOD THE
SIGNIFICANCE OF THE WAIVER HE SIGNED, THE DISTRICT COURT, ON FEBRUARY
2, 1953, REMANDED THE CASE TO THE DISTRICT COURT FOR THE WESTERN
DISTRICT OF MISSOURI FOR DISPOSITION. 

THAT COURT ORDERED THE ACCUSED DELIVERED TO THE UNITED STATES MEDICAL
CENTER FOR FEDERAL PRISONERS AT SPRINGFIELD, MISSOURI, FOR THE PURPOSE
OF ASCERTAINING HIS MENTAL CONDITION.  ON APRIL 15, 1953, THE CHIEF OF
THE PSYCHIATRIC SERVICE AT THE MEDICAL CENTER FILED HIS REPORT
CONCLUDING THAT THE ACCUSED WAS LEGALLY INSANE, IN THAT HE WAS UNABLE
TO CHOOSE BETWEEN RIGHT AND WRONG AND COULD NOT, BY REASON OF HIS
MENTAL CONDITION ADEQUATELY COOPERATE WITH COUNSEL IN HIS OWN DEFENSE. 

PETITIONER WAS THEN TRANSFERRED TO JAIL; BUT, ON NOVEMBER 16, 1953,
THE DISTRICT COURT ENTERED AN ORDER RETURNING HIM TO THE MEDICAL CENTER
FOR DETERMINATION WHETHER HE WAS ACUTELY OR CHRONICALLY INSANE.  THE
REPORT OF THE NEUROPSYCHIATRIC STAFF OF THE MEDICAL CENTER, FILED
FEBRUARY 1, 1954, INDICATED THAT PETITIONER WAS "PSYCHOTIC AND
INCOMPETENT," THAT "IT IS UNLIKELY THAT THIS SUBJECT WILL REGAIN HIS
SANITY IN THE NEAR FUTURE," AND RECOMMENDED THAT "CONSIDERATION BE
GIVEN TO TRANSFERRING THIS SUBJECT TO A STATE HOSPITAL IN HIS STATE OF
RESIDENCE."  THE DISTRICT COURT, ON THE FOLLOWING DAY, ORDERED A
FURTHER HEARING UNDER SEC. 4246 TO "RESOLVE THE POWER TO COMMIT
DEFENDANT AS MENTALLY DEFECTIVE UNDER THE CONDITIONS SPECIFIED IN
BOARD OF EXAMINERS OF THE MEDICAL CENTER TO CERTIFY WHETHER IN THEIR
JUDGMENT THE DEFENDANT, IF RELEASED, WOULD "PROBABLY ENDANGER THE
SAFETY OF THE OFFICERS, THE PROPERTY, OR OTHER INTERESTS OF THE UNITED
STATES, AND THAT SUITABLE ARRANGEMENTS FOR THE CUSTODY AND CARE OF THE
(DEFENDANT) ARE NOT OTHERWISE AVAILABLE."  THE REPORT OF THE BOARD,
DATED FEBRUARY 4, 1954, CONCLUDED THAT THE ACCUSED REMAINED "PSYCHOTIC
AND INCOMPETENT," AND STATED THAT "AT THE PRESENT TIME THERE APPEARS TO
BE LITTLE LIKELIHOOD OF HIS RECOVERING TO THE EXTENT THAT HE MIGHT BE
CONSIDERED COMPETENT IN THE NEAR FUTURE."  IN REPLY TO THE REQUEST OF
THE DISTRICT COURT, "THE BOARD AGREED THAT THIS SUBJECT MIGHT BE
CONSIDERED POTENTIALLY DANGEROUS TO THE EXTENT THAT IF RELEASED HE
MIGHT CONCEIVABLY PERSIST IN CRIMINAL ACTIVITIES OF THE TYPE WITH WHICH
HE IS PRESENTLY CHARGED.  IN CONSIDERING THIS MAN'S MENTAL ILLNESS THE
BOARD FINDS THAT HE DOES NOT HOLD ANY FIXED DELUSIONS CONCERNING
WANTING TO HARM ANY PERSON OR GROUP OF PERSONS, EITHER OFFICIALS OF THE
GOVERNMENT OR OTHERWISE, SO THAT IN THIS RESPECT HE PROBABLY WOULD NOT
CONSTITUTE A DANGER TO THE SAFETY OF OFFICERS, PROPERTY, OR OTHER
INTERESTS OF THE UNITED STATES  ...  .  THE BOARD FURTHER RECOMMENDS
THAT THIS SUBJECT BE CONSIDERED A SUITABLE CANDIDATE FOR STATE HOSPITAL
CARE IF SUITABLE ARRANGEMENTS CAN BE MADE."  IN MAY 1954 PETITIONER WAS
TRANSFERRED TO THE CUSTODY OF THE STATE OF OHIO WHERE HE WAS AGAIN
EXAMINED BY THE PSYCHIATRIST WHO HAD MADE THE EXAMINATION WHEN
PETITIONER WAS TRANSFERRED TO THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO IN 1952.  THIS TIME THE PSYCHIATRIST FOUND THAT
PETITIONER "IS NOW IN A STATE OF REMISSION EQUIVALENT TO A RECOVERY. 
HE IS NOT NOW INSANE IN THE LEGAL SENSE."  PETITIONER WAS THEN RELEASED
BY THE OHIO AUTHORITIES. 

PETITIONER WAS REARRESTED IN OHIO UNDER THE ORIGINAL INDICTMENT,
WHICH WAS STILL PENDING, AND ON JUNE 16, 1954, REMOVED TO THE WESTERN
DISTRICT OF MISSOURI.  ON JUNE 18, COUNSEL APPOINTED FOR PETITIONER
MOVED THE COURT TO APPOINT AT LEAST ONE QUALIFIED PSYCHIATRIST TO
INQUIRE INTO PETITIONER'S MENTAL COMPETENCY AND TO HOLD A HEARING FOR
THAT PURPOSE.  TWO PSYCHIATRISTS WERE APPOINTED AND WERE DIRECTED TO
REPORT TO THE COURT.  PETITIONER WAS ALSO RECOMMITTED TO THE UNITED
STATES MEDICAL CENTER FOR FEDERAL PRISONERS AT SPRINGFIELD, MISSOURI,
FOR FURTHER EXAMINATION. 

THE HEARING ON PETITIONER'S SANITY WAS HELD ON JULY 15.  THE TWO
PSYCHIATRISTS APPOINTED BY THE COURT TESTIFIED THAT IN THEIR BELIEF
PETITIONER WAS SANE.  THE FIRST THREE REPORTS OF THE MEDICAL CENTER
WERE RECEIVED IN EVIDENCE, ALONG WITH A FOURTH, A REPORT OF THE
NEUROPSYCHIATRIC STAFF OF THE MEDICAL CENTER AT SPRINGFIELD, DATED JULY
8, 1954.  THIS LATEST REPORT CONCLUDED "THAT THE SUBJECT REMAINS
LEGALLY INSANE BY REASON OF A MAJOR MENTAL DISORDER WHICH WOULD PREVENT
HIM FROM HAVING A PROPER UNDERSTANDING OF THE PROCEEDING PENDING
AGAINST HIM AND WHICH ALSO IMPAIRS HIS ABILITY TO PROPERLY ASSIST IN
HIS OWN DEFENSE."  THE STAFF FURTHER CONCLUDED "THAT THIS SUBJECT'S
PROGNOSIS FOR RECOVERY APPEARS TO BE POOR AND THAT HE WILL PROBABLY
REQUIRE INDEFINITE HOSPITALIZATION TO INSURE HIS OWN SAFETY AND THAT OF
SOCIETY.  THE STAFF DOES NOT CONSIDER THE SUBJECT TO BE POTENTIALLY
DANGEROUS EXCEPT TO THE EXTENT THAT IF RELEASED, HE MIGHT PERSIST IN
ENGAGING IN CRIMINAL ACTIVITIES SIMILAR TO THOSE WITH WHICH HE IS
PRESENTLY CHARGED."  THE CHIEF OF THE PSYCHIATRIC SERVICE AT THE
MEDICAL CENTER TESTIFIED AT THIS HEARING TO THE SAME EFFECT. 

THE DISTRICT COURT, IN ITS ORDER OF JULY 30, FOUND THAT THE ACCUSED
WAS INSANE AND SO MENTALLY INCOMPETENT THAT HE COULD NOT STAND TRIAL,
THAT, IF RELEASED, HE WOULD PROBABLY ENDANGER THE SAFETY OF THE
OFFICERS, PROPERTY, OR OTHER INTERESTS OF THE UNITED STATES, AND THAT
NO SUITABLE ARRANGEMENTS FOR CUSTODY AND CARE, OTHER THAN COMMITTMENT
TO THE CUSTODY OF THE ATTORNEY GENERAL, WERE AVAILABLE.  PETITIONER WAS
THEREFORE COMMITTED TO THE CUSTODY OF THE ATTORNEY GENERAL UNTIL HIS
SANITY SHOULD BE RESTORED, OR HIS MENTAL CONDITION SO IMPROVED THAT, IF
RELEASED, HE WOULD NOT ENDANGER THE SAFETY OF THE OFFICERS, PROPERTY,
OR OTHER INTERESTS OF THE UNITED STATES, OR UNTIL SUITABLE ARRANGEMENTS
COULD BE MADE FOR THE CUSTODY AND CARE OF DEFENDANT BY OHIO, THE STATE
OF HIS RESIDENCE.  125 F. SUPP. 777, 778.  PETITIONER APPEALED FROM
THIS JUDGMENT AND THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT, ITS
SEVEN CIRCUIT JUDGES SITTING EN BANC, AFFIRMED, ONE JUDGE DISSENTING. 
219 F.2D 376.  BECAUSE OF THE IMPORTANT ISSUE OF FEDERAL POWER RAISED
BY THE CASE AND BECAUSE OF CONFLICTING VIEWS IN THE COURTS OF APPEALS,
COMPARE HIGGINS V. UNITED STATES, 205 F.2D 650, AND WELLS V. ATTORNEY
GENERAL, 201 F.2D 556, WITH THE DECISION OF THE COURT OF APPEALS FOR
THE EIGHTH CIRCUIT IN THIS CASE, WE GRANTED CERTIORARI.  350 U.S. 821. 

A DETAILED HISTORY OF THE LEGISLATION IS SET FORTH IN THE OPINION OF
THE COURT OF APPEALS.  219 F.2D, AT 380-384.  IT IS SUFFICIENT TO NOTE
HERE THAT THE BILL WAS PROPOSED BY THE JUDICIAL CONFERENCE OF THE
UNITED STATES AFTER LONG STUDY BY A CONSPICUOUSLY ABLE COMMITTEE,
FOLLOWED BY CONSULTATION WITH FEDERAL DISTRICT AND CIRCUIT JUDGES. 

THE STATUTE DEALS COMPREHENSIVELY WITH THOSE PERSONS CHARGED WITH
FEDERAL CRIME WHO ARE INSANE OR MENTALLY INCOMPETENT TO STAND TRIAL. 
IT PROVIDES A PROCEDURE FOR DETERMINATION OF SUCH INSANITY OR MENTAL
INCOMPETENCE, AND FURTHER PROVIDES FOR COMMITMENT OF THOSE FOUND TO BE
INSANE OR MENTALLY INCOMPETENT.  PETITIONER'S ASSERTION THAT THE
STATUTE DEALS ONLY WITH THE PROBLEM OF TEMPORARY MENTAL DISORDER IS NOT
SUPPORTED BY THE LANGUAGE OF THE STATUTE, AND THE REPORT OF THE
COMMITTEE OF THE JUDICIAL CONFERENCE CLEARLY INDICATES THAT THE STATUTE
WAS DESIGNED TO DEAL WITH MENTAL DISABILITY WHICH SEEMS MORE THAN
TEMPORARY: 

"IF THE ACCUSED'S MENTAL DISABILITY APPEARS NOT TO BE A TRANSITORY
CONDITION, BUT IN ALL LIKELIHOOD HE WILL, BECAUSE OF HIS INSANITY,
NEVER BE BROUGHT TO TRIAL, IT WOULD SEEM THAT AS A GENERAL RULE THE
FEDERAL GOVERNMENT SHOULD NOT ASSUME RESPONSIBILITY FOR HIS
HOSPITALIZATION MERELY BECAUSE HE HAS BEEN ACCUSED (BUT NOT CONVICTED)
OF A FEDERAL CRIME.  NORMALLY SUCH A PERSON SHOULD BE TURNED OVER TO
THE STATE OF HIS DOMICILE TO BE CONFINED IN A STATE MENTAL HOSPITAL IF
HOSPITALIZATION IS CALLED FOR. 

"BUT THERE MAY BE CASES WHERE THE ACCUSED'S DOMICILE CANNOT BE
SATISFACTORILY ESTABLISHED AND WHERE NO STATE WILL ASSUME
RESPONSIBILITY FOR HIS CARE.  THE FEDERAL GOVERNMENT MAY THEN BE FACED
WITH THE PRACTICAL SITUATION THAT IT HAS LAWFUL CUSTODY OF A PERSON
WHOM IT IS NOT SAFE TO LET AT LARGE.  IN A RECENT CASE IN THE DISTRICT
OF MASSACHUSETTS, UNITED STATES V. TORREZ (UNREPORTED), A FILIPINO WAS
BROUGHT INTO THE DISTRICT AND INDICTED FOR MURDER ON THE HIGH SEAS. 
AFTER NOTICE OF HEARING AT WHICH ALIENISTS FOR THE GOVERNMENT AND FOR
THE DEFENDANT TESTIFIED, THE JUDGE FOUND THAT THE DEFENDANT WAS AT
PRESENT INSANE AND UNABLE RATIONALLY TO AID IN THE CONDUCT OF HIS
DEFENSE.  OBVIOUSLY IN SUCH CASE THERE SHOULD BE AUTHORITY IN THE COURT
TO CAUSE THE CONFINEMENT OF THE ACCUSED IN A MENTAL HOSPITAL." 

THE DISTRICT COURT PURSUED THE APPROPRIATE PROCEDURE IN HOLDING A
HEARING TO DETERMINE THE EXISTENCE OF THE CONDITIONS SPECIFIED IN SEC.
4247, ONCE IT DETERMINED THAT THE ACCUSED'S MENTAL INCOMPETENCE SEEMED
MORE THAN TEMPORARY.  ALTHOUGH THE LANGUAGE OF THE STATUTE AND THE
REPORT OF THE COMMITTEE OF THE JUDICIAL CONFERENCE DEMONSTRATE THAT THE
STATUTE DEALS GENERALLY WITH THE SITUATIONS BOTH OF TEMPORARY AND MORE
THAN TEMPORARY INSANITY, ONE COULD INFER FROM THE REPORTS ON THE BILL
BY THE COMMITTEE, BY THE JUDICIAL CONFERENCE ITSELF, AND BY THE
COMMITTEES OF BOTH HOUSES OF CONGRESS THAT THE SPECIFIC COMMITMENT
UNDER SEC. 4248 WAS DESIGNED ONLY FOR PRISONERS WHOSE SENTENCES ARE
ABOUT TO EXPIRE.  BUT THIS IS A CASE FOR APPLYING THE CANON OF
CONSTRUCTION OF THE WAG WHO SAID, WHEN THE LEGISLATIVE HISTORY IS
DOUBTFUL, GO TO THE STATUTE.  THE SECOND SENTENCE OF SEC. 4246 CLEARLY
MAKES COMMITMENT UNDER SEC. 4248 APPLICABLE TO PERSONS FOUND MENTALLY
INCOMPETENT UNDER SEC. 4244 WHO MEET THE CONDITIONS SPECIFIED IN SEC.
4247. 

WE REACH THEN THE NARROW CONSTITUTIONAL ISSUE RAISED BY THE ORDER OF
COMMITMENT IN THE CIRCUMSTANCES OF THIS CASE.  THE PETITIONER CAME
LEGALLY INTO THE CUSTODY OF THE UNITED STATES.  THE POWER THAT PUT HIM
INTO SUCH CUSTODY - THE POWER TO PROSECUTE FOR FEDERAL OFFENSES - IS
NOT EXHAUSTED.  ITS ASSERTION IN THE FORM OF THE PENDING INDICTMENT
PERSISTS.  THE DISTRICT COURT HAS FOUND THAT THE ACCUSED IS MENTALLY
INCOMPETENT TO STAND TRIAL AT THE PRESENT TIME AND THAT, IF RELEASED,
HE WOULD PROBABLY ENDANGER THE OFFICERS, PROPERTY, OR OTHER INTERESTS
OF THE UNITED STATES - AND THESE FINDINGS ARE ADEQUATELY SUPPORTED.  IN
THESE CIRCUMSTANCES THE DISTRICT COURT HAS ENTERED AN ORDER RETAINING
AND RESTRAINING PETITIONER, WHILE IN HIS PRESENT CONDITION, WITH HABEAS
CORPUS ALWAYS AVAILABLE WHEN CIRCUMSTANCES WARRANT.  THIS COMMITMENT,
AND THEREFORE THE LEGISLATION AUTHORIZING COMMITMENT IN THE CONTEXT OF
THIS CASE, INVOLVE AN ASSERTION OF AUTHORITY, DULY GUARDED, AUXILIARY
TO INCONTESTABLE NATIONAL POWER.  AS SUCH IT IS PLAINLY WITHIN
CONGRESSIONAL POWER UNDER THE NECESSARY AND PROPER CLAUSE.  ART. I,
SEC. 8, CL. 18.    THE FACT THAT AT PRESENT THERE MAY BE LITTLE
LIKELIHOOD OF RECOVERY DOES NOT DEFEAT FEDERAL POWER TO MAKE THIS
INITIAL COMMITMENT OF THE PETITIONER.  WE CANNOT SAY THAT FEDERAL
AUTHORITY TO PROSECUTE HAS NOW BEEN IRRETRIEVABLY FRUSTRATED.  THE
RECORD SHOWS THAT TWO COURT-APPOINTED PSYCHIATRISTS FOUND PETITIONER
SANE AND COMPETENT FOR TRIAL.  WHILE THE DISTRICT COURT DID NOT ACCEPT
THEIR CONCLUSION, THEIR TESTIMONY ILLUSTRATES THE UNCERTAINTY OF
DIAGNOSIS IN THIS FIELD AND THE TENTATIVENESS OF PROFESSIONAL
JUDGMENT.  THE ONLY CERTAIN THING THAT CAN BE SAID ABOUT THE PRESENT
STATE OF KNOWLEDGE AND THERAPY REGARDING MENTAL DISEASE IS THAT SCIENCE
HAS NOT REACHED FINALITY OF JUDGMENT, EVEN ABOUT A SITUATION AS
UNPROMISING AS PETITIONER'S, AT LEAST AS INDICATED BY THE REPORT OF THE
UNITED STATES MEDICAL CENTER AT SPRINGFIELD.  CERTAINLY, DENIAL OF
CONSTITUTIONAL POWER OF COMMITMENT TO CONGRESS IN DEALING WITH A
SITUATION LIKE THIS OUGHT NOT TO REST ON DOGMATIC ADHERENCE TO ONE VIEW
OR ANOTHER ON CONTROVERSIAL PSYCHIATRIC ISSUES. 

WE DECIDE NO MORE THAN THE SITUATION BEFORE US PRESENTS AND EQUALLY
DO NOT IMPLY AN OPINION ON SITUATIONS NOT NOW BEFORE US.  THE JUDGMENT
OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  SEC. 4244:  "WHENEVER AFTER ARREST AND PRIOR TO THE IMPOSITION
OF SENTENCE OR PRIOR TO THE EXPIRATION OF ANY PERIOD OF PROBATION THE
UNITED STATES ATTORNEY HAS REASONABLE CAUSE TO BELIEVE THAT A PERSON
CHARGED WITH AN OFFENSE AGAINST THE UNITED STATES MAY BE PRESENTLY
INSANE OR OTHERWISE SO MENTALLY INCOMPETENT AS TO BE UNABLE TO
UNDERSTAND THE PROCEEDINGS AGAINST HIM OR PROPERLY TO ASSIST IN HIS OWN
DEFENSE, HE SHALL FILE A MOTION FOR A JUDICIAL DETERMINATION OF SUCH
MENTAL COMPETENCY OF THE ACCUSED, SETTING FORTH THE GROUND FOR SUCH
BELIEF WITH THE TRIAL COURT IN WHICH PROCEEDINGS ARE PENDING.  UPON
SUCH A MOTION OR UPON A SIMILAR MOTION IN BEHALF OF THE ACCUSED, OR
UPON ITS OWN MOTION, THE COURT SHALL CAUSE THE ACCUSED  ...  TO BE
EXAMINED AS TO HIS MENTAL CONDITION BY AT LEAST ONE QUALIFIED
PSYCHIATRIST, WHO SHALL REPORT TO THE COURT.  FOR THE PURPOSE OF THE
EXAMINATION THE COURT MAY ORDER THE ACCUSED COMMITTED FOR SUCH
REASONABLE PERIOD AS THE COURT MAY DETERMINE TO A SUITABLE HOSPITAL OR
OTHER FACILITY TO BE DESIGNATED BY THE COURT.  IF THE REPORT OF THE
PSYCHIATRIST INDICATES A STATE OF PRESENT INSANITY OR SUCH MENTAL
INCOMPETENCY IN THE ACCUSED, THE COURT SHALL HOLD A HEARING, UPON DUE
NOTICE, AT WHICH EVIDENCE AS TO THE MENTAL CONDITION OF THE ACCUSED MAY
BE SUBMITTED, INCLUDING THAT OF THE REPORTING PSYCHIATRIST, AND MAKE A
FINDING WITH RESPECT THERETO  ...  ." 

FN2  SEC. 4246: "WHENEVER THE TRIAL COURT SHALL DETERMINE IN
ACCORDANCE WITH SECTIONS 4244 AND 4245  ...  THAT AN ACCUSED IS OR WAS
MENTALLY INCOMPETENT, THE COURT MAY COMMIT THE ACCUSED TO THE CUSTODY
OF THE ATTORNEY GENERAL OR HIS AUTHORIZED REPRESENTATIVE, UNTIL THE
ACCUSED SHALL BE MENTALLY COMPETENT TO STAND TRIAL OR UNTIL THE PENDING
CHARGES AGAINST HIM ARE DISPOSED OF ACCORDING TO LAW.  AND IF THE COURT
AFTER HEARING AS PROVIDED IN THE PRECEDING SECTIONS 4244 AND 4245 SHALL
DETERMINE THAT THE CONDITIONS SPECIFIED IN THE FOLLOWING SECTION 4247
EXIST, THE COMMITMENT SHALL BE GOVERNED BY SECTION 4248 AS HEREIN
PROVIDED." 

FN3  SEC. 4247:  "WHENEVER THE DIRECTOR OF THE BUREAU OF PRISONS
SHALL CERTIFY THAT A PRISONER WHOSE SENTENCE IS ABOUT TO EXPIRE HAS
BEEN EXAMINED BY THE BOARD OF EXAMINERS REFERRED TO IN  ... SECTION
4241, AND THAT IN THE JUDGMENT OF THE DIRECTOR AND THE BOARD OF
EXAMINERS THE PRISONER IS INSANE OR MENTALLY INCOMPETENT, AND THAT IF
RELEASED HE WILL PROBABLY ENDANGER THE SAFETY OF THE OFFICERS, THE
PROPERTY, OR OTHER INTERESTS OF THE UNITED STATES, AND THAT SUITABLE
ARRANGEMENTS FOR THE CUSTODY AND CARE OF THE PRISONER ARE NOT OTHERWISE
AVAILABLE, THE ATTORNEY GENERAL SHALL TRANSMIT THE CERTIFICATE TO THE
CLERK OF THE COURT FOR THE DISTRICT IN WHICH THE PRISONER IS CONFINED
...  .  IF UPON SUCH HEARING THE COURT SHALL DETERMINE THAT THE
CONDITIONS SPECIFIED ABOVE EXIST, THE COURT MAY COMMIT THE PRISONER TO
THE CUSTODY OF THE ATTORNEY GENERAL, OR HIS AUTHORIZED
REPRESENTATIVE." 

FN4  SEC. 4248:  "WHENEVER A PERSON SHALL BE COMMITTED PURSUANT TO
COMPETENCY OF THE PERSON SHALL BE RESTORED OR UNTIL THE MENTAL
CONDITION OF THE PERSON IS SO IMPROVED THAT IF HE BE RELEASED HE WILL
NOT ENDANGER THE SAFETY OF THE OFFICERS, THE PROPERTY, OR OTHER
INTERESTS OF THE UNITED STATES, OR UNTIL SUITABLE ARRANGEMENTS HAVE
BEEN MADE FOR THE CUSTODY AND CARE OF THE PRISONER BY THE STATE OF HIS
RESIDENCE, WHICHEVER EVENT SHALL FIRST OCCUR  ...  .  PROVIDED,
HOWEVER, THAT NOTHING HEREIN CONTAINED SHALL PRECLUDE A PRISONER
COMMITTED UNDER THE AUTHORITY OF SECTION 4247 HEREOF FROM ESTABLISHING
HIS ELIGIBILITY FOR RELEASE UNDER THE PROVISIONS OF THIS SECTION BY A
WRIT OF HABEAS CORPUS.  THE ATTORNEY GENERAL OR HIS AUTHORIZED
REPRESENTATIVE SHALL HAVE AUTHORITY AT ANY TIME TO TRANSFER A PRISONER
COMMITTED TO HIS CUSTODY UNDER THE AUTHORITY OF SECTION 4246 OR SECTION
4247 HEREOF TO THE PROPER AUTHORITIES OF THE STATE OF HIS RESIDENCE." 
..END :




















REMMER V. UNITED STATES 350 U.S. 377 


NO. 156.  ARGUED JANUARY 18, 1956 - DECIDED MARCH 5, 1956 - 222 F.2D
720, JUDGMENT VACATED AND CASE REMANDED FOR NEW TRIAL. 


DURING PETITIONER'S TRIAL IN A FEDERAL DISTRICT COURT, WHICH RESULTED
IN HIS CONVICTION OF A FEDERAL OFFENSE, ONE OF THE JURORS WAS
APPROACHED BY AN OUTSIDER, WHO SUGGESTED THAT HE COULD MAKE SOME MONEY
BY MAKING A DEAL WITH PETITIONER.  THE JUROR REFUSED TO DISCUSS THE
CASE WITH THE OUTSIDER AND REPORTED THE INCIDENT TO THE TRIAL JUDGE. 
WITHOUT INFORMING PETITIONER OR HIS COUNSEL, THE JUDGE RELATED THE
INCIDENT TO THE DISTRICT ATTORNEY, AND IT WAS REFERRED TO THE FEDERAL
BUREAU OF INVESTIGATION.  DURING A RECESS IN THE TRIAL, AN F.B.I. AGENT
INTERROGATED THE JUROR ABOUT THE MATTER, AND THE JUROR DID NOT KNOW THE
PURPOSE OR RESULT OF THIS INVESTIGATION UNTIL A MONTH AFTER THE END OF
THE TRIAL.  IMMEDIATELY AFTER THE TRIAL, THE JUROR TOLD ANOTHER JUROR
THAT HE "HAD BEEN UNDER A TERRIFIC PRESSURE."  HELD: ON THE RECORD IN
THIS CASE, IT CANNOT BE SAID THAT THE JUROR WAS NOT AFFECTED IN HIS
FREEDOM OF ACTION AS A JUROR; AND PETITIONER IS ENTITLED TO A NEW
TRIAL.  PP. 377-382. 

REMMER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE FOR THE THIRD TIME.  PETITIONER WAS CONVICTED ON
FOUR COUNTS OF WILFULLY ATTEMPTING TO EVADE AND DEFEAT FEDERAL INCOME
TAXES.  WHEN THIS CASE WAS FIRST HERE WE KNEW NOTHING ABOUT THE FACTS
CONCERNING THE PHASE OF THE CASE NOW BEFORE US.  IT WAS ALLEGED IN THE
PETITIONER'S MOTION AND AFFIDAVITS SUPPORTING HIS MOTION FOR A NEW
TRIAL THAT DURING THE TRIAL ONE JUROR, SMITH, HAD BEEN APPROACHED BY
ONE SATTERLY, AN OUTSIDER, WITH A SUGGESTION THAT THE JUROR COULD MAKE
SOME EASY MONEY IF HE WOULD MAKE A DEAL WITH PETITIONER REMMER.  IT WAS
FURTHER ALLEGED BY THE PETITIONER THAT THE JUROR REPORTED THE MATTER TO
THE TRIAL JUDGE, WHO IN TURN REPORTED IT TO THE DISTRICT ATTORNEY, WHO,
WITH THE JUDGE'S APPROVAL, CALLED IN THE FEDERAL BUREAU OF
INVESTIGATION - ALL OF WHICH WAS UNKNOWN TO THE PETITIONER UNTIL HE
READ ABOUT IT IN THE NEWSPAPER AFTER THE JURY HAD RETURNED ITS VERDICT
FINDING HIM GUILTY.  THE GOVERNMENT DID NOT DENY THESE ALLEGATIONS.  WE
SENT THE CASE BACK TO THE DISTRICT COURT WITH DIRECTIONS TO HOLD A
HEARING, WITH THE PETITIONER AND COUNSEL PRESENT, TO DETERMINE FROM THE
FACTS WHETHER OR NOT COMMUNICATION WITH THE JUROR BY THE OUTSIDER AND
THE EVENTS THAT FOLLOWED WERE PREJUDICIAL AND, THEREFORE, HARMFUL TO
THE PETITIONER, AND, IF SO, TO GRANT A NEW TRIAL.  347 U.S. 227.  ON
REMAND, THE DISTRICT COURT HELD A HEARING AND FOUND THE INCIDENTS TO BE
FREE OF HARM.  122 F. SUPP. 673.  THEREAFTER, THIS COURT REMANDED THE
ENTIRE RECORD TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT TO CONSIDER
THE WHOLE CASE IN THE LIGHT OF OUR RECENT NET-WORTH DECISIONS.  348
U.S. 904.  THE COURT OF APPEALS REVIEWED THE WHOLE RECORD AND AFFIRMED
THE PETITIONER'S CONVICTION IN A PER CURIAM OPINION.  222 F.2D 720. 

THE CASE IS HERE AGAIN ON CERTIORARI, LIMITED TO THE QUESTION OF THE
EFFECT OF THE EXTRANEOUS COMMUNICATIONS WITH THE JUROR UPON THE
PETITIONER'S RIGHT TO A FAIR TRIAL.  350 U.S. 820.  THE DISTRICT COURT
READ OUR OPINION AND MANDATE TO MEAN THAT "THE INCIDENT COMPLAINED OF"
TO BE INQUIRED INTO AT THE HEARING WAS THE PURPOSE AND EFFECT OF THE
F.B.I.  INVESTIGATION.  THE DISTRICT COURT FOUND THAT THE PURPOSE OF
THE F.B.I. INVESTIGATION WAS NOT TO EXAMINE SMITH'S CONDUCT, BUT RATHER
TO DETERMINE WHETHER SATTERLY HAD COMMITTED AN OFFENSE.  THE COURT
FURTHER FOUND THAT THE F.B.I. AGENT'S DISCUSSION WITH SMITH HAD "NO
EFFECT WHATEVER UPON THE JUDGMENT, OR THE INTEGRITY OR STATE OF MIND"
OF SMITH, WHOM THE COURT FOUND TO BE A "FORTHRIGHT AND HONEST MAN."  ON
THE BASIS OF THESE TWO FINDINGS, THE COURT CONCLUDED: 

"CONSEQUENTLY, THE COURT FINDS THAT 'THE INCIDENT COMPLAINED OF' WAS
ENTIRELY HARMLESS SO FAR AS THE PETITIONER WAS CONCERNED AND DID NOT
HAVE THE SLIGHTEST BEARING UPON THE INTEGRITY OF THE VERDICT NOR THE
STATE OF MIND OF THE FOREMAN OF THE JURY, OR ANY OF THE MEMBERS OF THE
JURY.  THUS ANY PRESUMPTION OF PREJUDICE IS CONCLUSIVELY DISPELLED  ...
." 

THE DISTRICT COURT'S LIMIT OF OUR MANDATE, IT SEEMS TO US, IS HARDLY
WARRANTED BY THE LANGUAGE OF THE OPINION, EVEN THOUGH THE LANGUAGE
MIGHT WELL HAVE BEEN MORE EXPLICIT.  IT WAS OUR INTENTION THAT THE
ENTIRE PICTURE SHOULD BE EXPLORED AND THE INCIDENT COMPLAINED OF AND TO
BE EXAMINED INCLUDED SATTERLY'S COMMUNICATION WITH THE JUROR AND THE
IMPACT THEREOF UPON HIM THEN, IMMEDIATELY THEREAFTER, AND DURING THE
TRIAL, TAKEN TOGETHER WITH THE FACT THAT THE F.B.I. WAS INVESTIGATING A
CIRCUMSTANCE INVOLVING THE JUROR AND THE FACT THAT THE JUROR NEVER KNEW
ALL DURING THE BALANCE OF THE TRIAL WHAT THE OUTCOME OF THAT
INVESTIGATION WAS.  THUS WE STATED:  "IN A CRIMINAL CASE, ANY PRIVATE
COMMUNICATION, CONTACT, OR TAMPERING, DIRECTLY OR INDIRECTLY, WITH A
JUROR DURING A TRIAL ABOUT THE MATTER PENDING BEFORE THE JURY IS, FOR
OBVIOUS REASONS, DEEMED PRESUMPTIVELY PREJUDICIAL, IF NOT MADE IN
PURSUANCE OF KNOWN RULES OF THE COURT  ...  WITH FULL KNOWLEDGE OF THE
PARTIES."  347 U.S., AT 229.  WE ALSO POINTED OUT THAT THE RECORD WE
HAD BEFORE US DID NOT REFLECT WHAT IN FACT TRANSPIRED, "OR WHETHER THE
INCIDENTS THAT MAY HAVE OCCURRED WERE HARMFUL OR HARMLESS."  IBID.  IT
WAS THE PAUCITY OF INFORMATION RELATING TO THE ENTIRE SITUATION COUPLED
WITH THE PRESUMPTION WHICH ATTACHES TO THE KIND OF FACTS ALLEGED BY
PETITIONER WHICH, IN OUR VIEW, MADE MANIFEST THE NEED FOR A FULL
HEARING.  NEVERTHELESS, THERE IS SUFFICIENT EVIDENCE IN THE RECORD
RELATING TO THE TOTAL SITUATION, INCLUDING BOTH THE SATTERLY AND THE
F.B.I. CONTACTS, WHICH MAKES IT UNNECESSARY TO REMAND THE CASE FOR
FURTHER CONSIDERATION.  WE WILL CONSIDER THE EVIDENCE FREE FROM WHAT WE
THINK ARE THE UNDULY NARROW LIMITS OF THE QUESTION AS VIEWED BY THE
DISTRICT COURT. 

THE EVIDENCE SHOWS THAT THREE WEEKS AFTER THE TRIAL STARTED, JUROR
SMITH, WHO IS A REAL ESTATE AND INSURANCE BROKER, WAS VISITED IN HIS
HOME BY SATTERLY AND HIS WIFE ABOUT AN INSURANCE POLICY.  SATTERLY HAD
BEEN EMPLOYED IN A GAMBLING HOUSE IN NEVADA AS A DEALER OF CRAPS.  THE
PETITIONER WAS OR HAD BEEN ENGAGED IN THE OPERATION OF GAMBLING HOUSES
IN NEVADA.  THE SATTERLYS HAD MET THE SMITHS SOCIALLY AT A HUNTING
LODGE.  SMITH AND SATTERLY SEATED THEMSELVES IN ONE END OF A LARGE ROOM
AND THEIR WIVES WERE SEATED IN THE OTHER END OF THE ROOM, A CONVENIENT
ARRANGEMENT IF AN APPROACH WAS TO BE MADE.  SATTERLY MADE SUBSTANTIALLY
THE FOLLOWING REMARK:  "I KNOW BONES REMMER VERY WELL.  HE SOLD CAL
NEVA FOR $850,000 AND REALLY GOT ABOUT $300,000 UNDER THE TABLE WHICH
HE DARESN'T TOUCH.  WHY DON'T YOU MAKE A DEAL WITH HIM?"  SMITH
VIGOROUSLY REMINDED SATTERLY THAT HE WAS ON THE JURY AND THAT HE COULD
NOT TALK ABOUT THE CASE.  NOTHING MORE WAS SAID.  SMITH WAS DISTURBED. 
AS HE LATER TESTIFIED, "I ALWAYS FELT, WHETHER MR. SATTERLY SAID IT IN
SO MANY WORDS OR NOT, I ALWAYS FELT THAT MONEY WAS INVOLVED; OTHERWISE
WHY WOULD ANY QUESTION BE PUT TO ME."  SO DISTURBED WAS SMITH THAT HE
TOLD THE TRIAL JUDGE ABOUT IT. THE JUDGE'S REACTION, AT LEAST AS HE
MANIFESTED IT TO SMITH, WAS THAT THE SATTERLY CONVERSATION SHOULD BE
REGARDED AS A JOKE.  BUT THE JUDGE RELATED THE INCIDENT TO THE DISTRICT
ATTORNEY AND THEY DECIDED TO REFER THE MATTER TO THE FEDERAL BUREAU OF
INVESTIGATION.  SHORTLY THEREAFTER, DURING A RECESS, AN F.B.I. AGENT
CALLED ON SMITH AT HIS PLACE OF BUSINESS.  SMITH TESTIFIED THAT THE
AGENT EXPLAINED THE PURPOSE OF THIS VISIT AS FOLLOWS: "HE TOLD ME THAT
HE HAD BEEN INSTRUCTED TO COME AND INTERVIEW ME RELATIVE TO THIS
CONVERSATION I HAD WITH MR. SATTERLY ...  .  TO CHECK AND SEE WHETHER
THERE WAS ANYTHING TO THIS OR NOT."  ON DIRECT EXAMINATION THE AGENT
TESTIFIED:  "I TOLD HIM I HAD BEEN REQUESTED TO CONDUCT AN
INVESTIGATION RELATING TO HIS TALK WITH MR. SATTERLY AND THE
POSSIBILITY OF IMPROPER APPROACH."  IN REPLY TO QUESTIONS PUT BY THE
DISTRICT COURT, THE AGENT TESTIFIED THAT HE HAD EXPLAINED TO SMITH THAT
THE PURPOSE OF HIS INVESTIGATION WAS TO EXAMINE SATTERLY'S CONDUCT. 
SATTERLY WAS NEVER INTERVIEWED BY THE F.B.I. DURING ITS INVESTIGATION. 
IT WAS NOT UNTIL A MONTH AFTER THE TRIAL HAD ENDED THAT THE GOVERNMENT
DETERMINED THAT FURTHER INVESTIGATION OR CRIMINAL PROSECUTION WAS
UNWARRANTED. 

DRIVING HOME AFTER THE TRIAL WITH TWO OTHER JURORS, SMITH MENTIONED
THAT THERE WAS SOME QUESTION AS TO WHETHER HE HAD BEEN APPROACHED
DURING THE TRIAL AND THAT HE HAD REPORTED THE INCIDENT TO THE TRIAL
JUDGE.  HE THANKED ONE OF THE JURORS ON DROPPING HER AT HER HOME,
"BECAUSE I HAVE BEEN UNDER A TERRIFIC PRESSURE  ...  SOMETIME I WILL
DISCUSS IT." 

WE THINK THIS EVIDENCE, COVERING THE TOTAL PICTURE, REVEALS SUCH A
STATE OF FACTS THAT NEITHER MR. SMITH NOR ANYONE ELSE COULD SAY THAT HE
WAS NOT AFFECTED IN HIS FREEDOM OF ACTION AS A JUROR.  FROM SMITH'S
TESTIMONY IT IS QUITE EVIDENT THAT HE WAS A DISTURBED AND TROUBLED MAN
FROM THE DATE OF THE SATTERLY CONTACT UNTIL AFTER THE TRIAL.  PROPER
CONCERN FOR PROTECTING AND PRESERVING THE INTEGRITY OF OUR JURY SYSTEM
DICTATES AGAINST OUR SPECULATING THAT THE F.B.I. AGENT'S INTERVIEW WITH
SMITH, WHATEVER THE GOVERNMENT MAY HAVE UNDERSTOOD ITS PURPOSE TO BE,
DISPERSED THE CLOUD CREATED BY SATTERLY'S COMMUNICATION.  AS HE SAT ON
THE JURY FOR THE REMAINDER OF THE LONG TRIAL AND AS HE CAST HIS BALLOT,
SMITH WAS NEVER AWARE OF THE GOVERNMENT'S INTERPRETATION OF THE EVENTS
TO WHICH HE, HOWEVER UNWILLINGLY, HAD BECOME A PARTY.  HE HAD BEEN
SUBJECTED TO EXTRANEOUS INFLUENCES TO WHICH NO JUROR SHOULD BE
SUBJECTED, FOR IT IS THE LAW'S OBJECTIVE TO GUARD JEALOUSLY THE
SANCTITY OF THE JURY'S RIGHT TO OPERATE AS FREELY AS POSSIBLE FROM
OUTSIDE UNAUTHORIZED INTRUSIONS PURPOSEFULLY MADE. 

THE UNDULY RESTRICTIVE INTERPRETATION OF THE QUESTION BY THE DISTRICT
COURT HAD THE EFFECT OF DILUTING THE FORCE OF ALL THE OTHER FACTS AND
CIRCUMSTANCES IN THE CASE THAT MAY HAVE INFLUENCED AND DISTURBED SMITH
IN THE UNTRAMMELED EXERCISE OF HIS JUDGMENT AS A JUROR.  WE HOLD THAT
ON A CONSIDERATION OF ALL THE EVIDENCE UNINFLUENCED BY THE DISTRICT
COURT'S NARROW CONSTRUCTION OF THE INCIDENT COMPLAINED OF, PETITIONER
IS ENTITLED TO A NEW TRIAL. 

THE COURT OF APPEALS' JUDGMENT IS VACATED AND THE CASE IS REMANDED TO
THE DISTRICT COURT WITH DIRECTIONS TO GRANT A NEW TRIAL.  IT IS SO
ORDERED. 

MR. CHIEF JUSTICE WARREN AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :







UNITED STATES V. LESLIE SALT CO. 350 U.S. 383 


NO. 74.  ARGUED DECEMBER 7, 1955 - DECIDED MARCH 5, 1956 - 218 F.2D 91,
AFFIRMED. 


IN 1949, A CORPORATION IN NEED OF FUNDS TO MEET MATURING BANK LOANS
AND FOR WORKING CAPITAL BORROWED $3,000,000 FROM ONE INSURANCE COMPANY
AND $1,000,000 FROM ANOTHER FOR 15 YEARS, GIVING EACH A SINGLE
TYPEWRITTEN INSTRUMENT ENTITLED "3 1/4% SINKING FUND PROMISSORY NOTE
DUE FEBRUARY 1, 1964."   EACH NOTE WAS SUBJECT TO THE TERMS OF AN
UNDERLYING AGREEMENT CONTAINING ELABORATE PROVISIONS FOR THE PROTECTION
OF THE NOTE HOLDERS AND A PROVISION UNDER WHICH EACH INSURANCE COMPANY
COULD REQUIRE THE BORROWER TO CONVERT ITS NOTE INTO A SERIES OF NEW
NOTES IN DENOMINATIONS OF $1,000 OR MULTIPLES THEREOF, "EITHER IN
REGISTERED FORM WITHOUT COUPONS OR IN COUPON FORM, AND IN PRINTED OR IN
FULLY ENGRAVED FORM."  THIS OPTION HAD NOT BEEN EXERCISED BY EITHER
NOTE HOLDER.  HELD:  THESE TWO NOTES ARE NOT SUBJECT TO THE DOCUMENTARY
STAMP TAXES LAID UNDER SECS. 1800 AND 1801 OF THE INTERNAL REVENUE CODE
OF 1939 ON "ALL BONDS, DEBENTURES, OR CERTIFICATES OF INDEBTEDNESS
ISSUED BY ANY CORPORATION  ...  ."  PP. 384-398. 

(A)  IT IS SIGNIFICANT THAT THE STAMP TAX WHICH WAS LEVIED ON
"PROMISSORY NOTES" FOR MANY YEARS, BUT WHICH HAS BEEN REPEALED, WAS
ALWAYS CARRIED IN A SEPARATE SECTION FROM THAT CONTAINING THE TAX ON
"BONDS, DEBENTURES, OR CERTIFICATES OF INDEBTEDNESS" AND WAS ALWAYS AT
A LOWER RATE THAN THE TAX ON THE LATTER INSTRUMENTS.  P. 388. 

(B)  THAT THESE NOTES ARE FOR LARGE AMOUNTS AND OF LONG MATURITY AND
ARE SECURED BY AN ELABORATE UNDERLYING AGREEMENT DOES NOT PREVENT THEM
FROM BEING PROMISSORY NOTES, NOR DOES ANYTHING IN THE EARLIER
LEGISLATION OR ITS HISTORY INDICATE THAT THIS TYPE OF NOTE WOULD NOT
HAVE BEEN TAXABLE AT THE LOWER RATE PROVIDED IN THE PROMISSORY-NOTE

(C)  EVEN IF THESE NOTES COULD NOT FAIRLY BE CALLED "PROMISSORY
NOTES," IT DOES NOT FOLLOW THAT THEY MUST BE REGARDED AS "DEBENTURES"
OR "CERTIFICATES OF INDEBTEDNESS."  P. 389. 

(D)  THE ADMINISTRATIVE HISTORY OF THE STATUTE ESTABLISHES THAT,
UNTIL 1947, WHEN GENERAL MOTORS ACCEPTANCE CORP. V. HIGGINS, 161 F.2D
593, WAS DECIDED, THE TREASURY CONSIDERED NO INSTRUMENTS SUBJECT TO THE
"DEBENTURE" TAX EXCEPT THOSE WHICH WERE ISSUED (1) IN SERIES, (2) UNDER
TRUST INDENTURES, AND (3) IN REGISTERED FORM OR WITH COUPONS ATTACHED. 
PP. 389-393. 

(E)  SINCE 1920, THE TREASURY HAS CONSIDERED "CERTIFICATES OF
INDEBTEDNESS" AS AKIN TO BONDS AND DEBENTURES AND AS INCLUDING "ONLY
INSTRUMENTS HAVING THE GENERAL CHARACTER OF INVESTMENT SECURITIES,"
WHICH THESE NOTES DO NOT HAVE.  PP. 393-395. 

(F)  THE STAMP TAXES ON "DEBENTURES" AND "CERTIFICATES OF
INDEBTEDNESS" ARE BASED UPON THE CHARACTER OF THE INSTRUMENTS EMPLOYED,
NOT UPON THE NATURE OF THE TRANSACTIONS INVOLVED; AND AN INSTRUMENT
WHICH IS NEITHER A "DEBENTURE" NOR A "CERTIFICATE OF INDEBTEDNESS" DOES
NOT BECOME SUCH MERELY BECAUSE IT EVIDENCES A LONG-TERM DEBT OBLIGATION
SUPPORTED BY ELABORATE PROTECTIVE COVENANTS.   PP. 395-396. 

(G)  IN VIEW OF THE TREASURY'S PRIOR LONG-STANDING AND CONSISTENT
ADMINISTRATIVE INTERPRETATION OF THE TERMS "DEBENTURES" AND
"CERTIFICATES OF INDEBTEDNESS" AND THE FACT THAT CONGRESS HAS LET THAT
ADMINISTRATIVE INTERPRETATION REMAIN UNDISTURBED FOR MANY YEARS, THE
TREASURY'S PRESENT AD HOC CONTENTION THAT THOSE TERMS SHOULD NOW BE
CONSTRUED AS INCLUDING THE NOTES HERE INVOLVED CANNOT STAND.  PP. 396
397. 

(H)  THE FACT THAT THE AGREEMENT UNDERLYING THESE NOTES PROVIDES FOR
THE SUBSTITUTION OF INSTRUMENTS WHICH MIGHT QUALIFY AS "DEBENTURES"
DOES NOT RENDER THESE NOTES TAXABLE AS "DEBENTURES."   P. 398. 

UNITED STATES V. LESLIE SALT CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

ON FEBRUARY 1, 1949, LESLIE SALT COMPANY, BEING IN NEED OF FUNDS TO
MEET MATURING BANK LOANS AND FOR WORKING CAPITAL, BORROWED $3,000,000
FROM THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK AND $1,000,000 FROM
THE PACIFIC MUTUAL LIFE INSURANCE COMPANY.  AS EVIDENCE OF THE
INDEBTEDNESS LESLIE SALT DELIVERED TO EACH INSURANCE COMPANY ITS "3
1/4% SINKING FUND PROMISSORY NOTE DUE FEBRUARY 1, 1964" IN THESE
AMOUNTS.  THE QUESTION PRESENTED IS WHETHER THESE INSTRUMENTS ARE
SUBJECT TO THE DOCUMENTARY STAMP TAXES LAID ON "ALL BONDS, DEBENTURES,
OR CERTIFICATES OF INDEBTEDNESS ISSUED BY ANY CORPORATION  ...  ." 
UNDER SECS. 1800 AND 1801 OF THE INTERNAL REVENUE CODE OF 1939.  (FN1) 

THE COMMISSIONER OF INTERNAL REVENUE HELD THE TAX APPLICABLE,
CONSIDERING THE TWO INSTRUMENTS TO BE "DEBENTURES" WITHIN THE MEANING
OF SEC. 1801.  HOWEVER, IN A TAX RECOVERY SUIT INSTITUTED BY LESLIE
SALT, FOLLOWING PAYMENT OF THE TAX UNDER PROTEST AND THE COMMISSIONER'S
DENIAL OF A REFUND, THE DISTRICT COURT (FN2) AND THE COURT OF APPEALS
(FN3) HELD THE INSTRUMENTS NOT TO BE "DEBENTURES" OR OTHERWISE SUBJECT
TO STAMP TAXES.  WE BROUGHT THE CASE HERE, 349 U.S. 951, TO RESOLVE THE
UNCERTAINTY LEFT BY LOWER COURT DECISIONS AS TO WHETHER SEC. 1801
APPLIES TO CORPORATE NOTES OF THIS TYPE.  (FN4) 

EXCEPT AS TO AMOUNTS AND PAYEES, THE TWO INSTRUMENTS IN QUESTION WERE
IN IDENTICAL TERMS, HAVING THESE PRINCIPAL FEATURES:  (1) EACH
INSTRUMENT CARRIED THE PROMISSORY NOTE DESCRIPTION ALREADY INDICATED;
(2) EACH HAD A MATURITY OF 15 YEARS; (3) EACH CARRIED INTEREST OF 3
1/4% PAYABLE AUGUST 1 AND FEBRUARY 1 OF EACH YEAR ON THE UNPAID
BALANCE; AND (4) EACH WAS SUBJECT TO THE TERMS OF AN UNDERLYING
AGREEMENT CONTAINING ELABORATE PROVISIONS FOR THE PROTECTION OF THE
NOTE HOLDERS.  AMONG THOSE PROVISIONS WAS ONE UNDER WHICH EACH
INSURANCE COMPANY COULD REQUIRE LESLIE SALT TO CONVERT ITS NOTE, WHICH
WAS TYPEWRITTEN ON ORDINARY WHITE PAPER, INTO A SERIES OF NEW NOTES IN
DENOMINATIONS OF $1,000 OR MULTIPLES THEREOF, "EITHER IN REGISTERED
FORM WITHOUT COUPONS OR IN COUPON FORM, AND IN PRINTED OR IN FULLY
ENGRAVED FORM."  (FN5)  THIS OPTION HAS NOT BEEN EXERCISED BY EITHER
NOTE HOLDER. 

THESE TRANSACTIONS WITH THE TWO INSURANCE COMPANIES CONSTITUTED A
VARIETY OF "PRIVATE PLACEMENT," A METHOD OF CORPORATE FINANCING WHICH,
BECAUSE OF ITS ECONOMIES AND CONVENIENCES, HAS BECOME POPULAR SINCE THE
ENACTMENT OF THE SECURITIES ACT OF 1933.  THE GOVERNMENT CLAIMS THAT
THESE NOTES ARE TAXABLE UNDER SEC. 1801 EITHER AS "DEBENTURES" OR
"CERTIFICATES OF INDEBTEDNESS."  THE TAXPAYER, ON THE OTHER HAND,
CONTENDS THAT THESE TERMS, UNDEFINED IN THE STATUTE, DO NOT INCLUDE
NOTES OF THE TYPE HERE IN ISSUE.  TAKING THE STATUTE IN LIGHT OF ITS
LEGISLATIVE AND ADMINISTRATIVE HISTORY, WE AGREE WITH THE TAXPAYER'S
CONTENTION. 

"DEBENTURES" AND "CERTIFICATES OF INDEBTEDNESS," ALONG WITH OTHER
KINDS OF CORPORATE SECURITIES, HAVE BEEN SUBJECT TO STAMP TAXES SINCE
1898, EXCEPT FOR THE PERIOD BETWEEN 1902 AND 1914.  (FN6) "PROMISSORY
NOTES" WERE ALSO SUBJECT TO STAMP DUTIES FROM 1898 TO 1901 AND FROM
1914 UNTIL 1924, WHEN THE TAX WAS REPEALED; (FN7) IT HAS NEVER BEEN RE
ENACTED.  THE TAX ON "PROMISSORY NOTES," HOWEVER, WAS ALWAYS CARRIED IN
A SECTION SEPARATE FROM THAT CONTAINING THE TAX ON "BONDS, DEBENTURES,
OR CERTIFICATES OF INDEBTEDNESS," AND WAS ALWAYS AT A RATE LOWER THAN
THE TAX ON THOSE INSTRUMENTS.  SINCE PROMISSORY NOTES, DEBENTURES, AND
CERTIFICATES OF INDEBTEDNESS ALL SERVE THE SAME BASIC PURPOSE - THAT
IS, AS EVIDENCE OF A DEBT - THIS FORMER LEGISLATIVE DISTINCTION BETWEEN
PROMISSORY NOTES AND THE OTHER INSTRUMENTS ASSUMES SIGNIFICANCE IN
DETERMINING WHETHER THE PRESENT NOTES ARE TAXABLE.  FOR UNLESS THE
EARLIER STATUTES WERE INTENDED TO IMPOSE TWO TAXES ON THE SAME
INSTRUMENT, WHICH WE SHOULD NOT ASSUME, OR THE PRESENT TAX ON
DEBENTURES AND CERTIFICATES OF INDEBTEDNESS IS BROADER IN SCOPE THAN
THAT IN EFFECT IN 1924, OF WHICH THERE IS NO INDICATION, IT WOULD SEEM
TO FOLLOW THAT THESE NOTES SHOULD NOT NOW BE TAXED IF THEY CAN BE SAID
TO FALL WITHIN THE CLASS OF "PROMISSORY NOTES" ON WHICH THE TAX WAS
REPEALED. 

THE GOVERNMENT ARGUES THAT THE REPEALED PROMISSORY NOTE PROVISION
RELATED ONLY TO ORDINARY SHORT-TERM PAPER CUSTOMARILY USED IN DAY-TO
DAY COMMERCIAL TRANSACTIONS, AND THAT IT DID NOT EMBRACE NOTES, LIKE
THOSE HERE INVOLVED, OF LARGE AMOUNTS, LONG MATURITY, AND SECURED BY AN
ELABORATE UNDERLYING AGREEMENT.  SEE GENERAL MOTORS ACCEPTANCE CORP. V.
HIGGINS, 161 F.2D 593, 595.  THE EXISTENCE OF THESE FEATURES, HOWEVER,
DOES NOT RENDER EITHER OF THE LESLIE SALT INSTRUMENTS ANY THE LESS A
PROMISSORY NOTE, AS EACH WAS CAPTIONED.  NOR DO WE FIND ANYTHING IN THE
EARLIER LEGISLATION OR IN ITS HISTORY WHICH SATISFIES US THAT THIS TYPE
OF NOTE WOULD NOT HAVE BEEN TAXABLE AT THE LOWER RATE PROVIDED IN THE
PROMISSORY NOTE SECTION OF THE FORMER STATUTE.  SEE NILES-BEMENT-POND
CO. V. FITZPATRICK, 213 F.2D 305, 308-310.  MOREOVER, THE
ADMINISTRATIVE INTERPRETATIONS OF THE TREASURY, DISCUSSED BELOW,
AFFIRMATIVELY INDICATE THAT THEY WOULD HAVE BEEN CONSIDERED TAXABLE
UNDER THAT SECTION. 

BUT EVEN ASSUMING THAT THESE NOTES COULD NOT FAIRLY BE CALLED
"PROMISSORY NOTES," IT DOES NOT FOLLOW THAT THEY MUST THEREFORE BE
REGARDED AS "DEBENTURES" OR "CERTIFICATES OF INDEBTEDNESS."  THAT
DEPENDS UPON THE MEANING OF THOSE TERMS IN THE STATUTE, AND UPON
WHETHER THESE NOTES, REGARDLESS OF THEIR DESCRIPTIVE CAPTION, HAVE THE
ESSENTIAL CHARACTERISTICS OF "DEBENTURES" OR "CERTIFICATES OF
INDEBTEDNESS," AS THOSE TERMS ARE USED IN THE STATUTE.  GENERAL MOTORS
ACCEPTANCE CORP. V. HIGGINS, SUPRA; NILES-BEMENT-POND CO. V.
FITZPATRICK, SUPRA.  AND IN DETERMINING THE SCOPE OF THE STATUTE, WHICH
HAS REMAINED SUBSTANTIALLY UNCHANGED SINCE ITS FIRST ENACTMENT, THE
TREASURY'S INTERPRETATIONS OF IT ARE ENTITLED TO GREAT WEIGHT.  WHITE
V. WINCHESTER CLUB, 315 U.S. 32, 41. 

THE ADMINISTRATIVE HISTORY OF THE STATUTE ESTABLISHES THAT UNTIL
1947, WHEN THE GENERAL MOTORS CASE, SUPRA, WAS DECIDED, ONLY THOSE
INSTRUMENTS WERE CONSIDERED SUBJECT TO THE "DEBENTURE" TAX WHICH WERE
ISSUED (1) IN SERIES, (2) UNDER A TRUST INDENTURE, AND (3) IN
REGISTERED FORM OR WITH COUPONS ATTACHED.  IN OTHER WORDS, THAT TAX WAS
CONSIDERED TO APPLY ONLY TO MARKETABLE CORPORATE SECURITIES, AS THAT
TERM IS GENERALLY UNDERSTOOD.  CONVERSELY, CORPORATE PROMISSORY NOTES
LACKING ANY OF THOSE FEATURES, SUCH AS THOSE ISSUED BY RESPONDENT, WERE
TAXED AT THE LOWER PROMISSORY NOTE RATE UNTIL THAT TAX WAS REPEALED IN
1924, AND WERE NOT TAXED THEREAFTER UNTIL THE GOVERNMENT'S SUCCESS IN
THE GENERAL MOTORS CASE IN 1947. 

AS EARLY AS 1918 THE TREASURY, IN DISTINGUISHING INSTRUMENTS TAXABLE
AT THE "BOND" AND "DEBENTURE" RATE FROM THOSE TAXABLE AT THE LOWER
"PROMISSORY NOTE" RATE, THEN STILL IN FORCE, DREW THE LINE AS FOLLOWS: 

"(3)  INSTRUMENTS CONTAINING THE ESSENTIAL FEATURES OF A PROMISSORY
NOTE, BUT ISSUED BY CORPORATIONS IN NUMBERS UNDER A TRUST INDENTURE,
EITHER IN REGISTERED FORM OR WITH COUPONS ATTACHED, EMBODYING
PROVISIONS FOR ACCELERATION OF MATURITY IN THE EVENT OF ANY DEFAULT BY
THE OBLIGOR, FOR OPTIONAL REGISTRATION IN THE CASE OF BEARER BONDS, FOR
AUTHENTICATION BY THE TRUSTEE, AND SOMETIMES FOR REDEMPTION BEFORE
MATURITY, OR SIMILAR PROVISIONS, ARE BONDS WITHIN THE MEANING OF THE
STATUTE, WHETHER CALLED BONDS, DEBENTURES, OR NOTES.  HOWEVER, A SHORT
TERM INSTRUMENT, ALTHOUGH ISSUED BY A CORPORATION UNDER A TRUST
INDENTURE, MAY BE REGARDED AS A NOTE IF EVERY INSTRUMENT OF SUCH ISSUE
BOTH (A) IS PAYABLE TO BEARER AND INCAPABLE OF REGISTRATION AND (B)
LACKS INTEREST COUPONS AND SO REQUIRES PRESENTATION UPON EACH PAYMENT
OF INTEREST."  T.D. 2713, MAY 14, 1918, 20 TREAS. DEC. INT. REV. 358
(1918).  (FN8) 

WHEN CONGRESS IN 1918 AMENDED THE EXISTING STATUTE BY ADDING THE
LANGUAGE "AND ALL INSTRUMENTS, HOWEVER TERMED, ISSUED BY ANY
CORPORATION WITH INTEREST COUPONS OR IN REGISTERED FORM, KNOWN
GENERALLY AS CORPORATE SECURITIES  ...  ,"  STILL FOUND IN SEC. 1801,
THE TREASURY RECOGNIZED THAT THIS WAS IN EFFECT AN ENACTMENT OF ITS
PRIOR RESTRICTIVE INTERPRETATION.  (FN9)  THE REGULATIONS WHICH
FOLLOWED THE REPEAL IN 1924 OF THE TAX ON PROMISSORY NOTES DID NOT
PURPORT TO ENLARGE THE SCOPE OF THE TAX ON "BONDS" OR "DEBENTURES"; THE
TREASURY ADHERED TO THE SAME INTERPRETATION ISSUED UNDER THE PREVIOUS
STATUTE.  (FN10)  THE REGULATIONS WERE AMENDED IN 1941 TO THE LESS
SPECIFIC, BUT NOT INCONSISTENT, FORM UNDER WHICH THE PRESENT NOTES WERE
TAXED.  (FN11)  FINALLY, EXPLICIT RECOGNITION THAT THE ATTEMPT TO TAX
NOTES NOT HAVING THE FEATURES OF MARKETABLE CORPORATE SECURITIES WAS A
DEPARTURE FROM PRIOR TREASURY PRACTICE IS FOUND IN A RULING BY THE
COMMISSIONER OF INTERNAL REVENUE THAT GENERAL MOTORS WOULD NOT BE
APPLIED RETROACTIVELY: 

"THE BUREAU HAS FOR A CONSIDERABLE PERIOD OF TIME HELD THAT AN
INSTRUMENT TERMED 'NOTE,' NOT IN REGISTERED FORM AND ISSUED WITHOUT
INTEREST COUPONS, IS NOT SUBJECT TO THE STAMP TAX UPON ISSUANCE OR
TRANSFER.  BECAUSE OF THIS LONG AND UNIFORM HOLDING OF THE BUREAU AND
THE CONSEQUENT RELIANCE OF CORPORATIONS ON THESE RULINGS, IT HAS BEEN
CONCLUDED THAT, UNDER THE AUTHORITY CONTAINED IN SECTION 3791(B) OF THE
INTERNAL REVENUE CODE, THE DECISION IN GENERAL MOTORS ACCEPTANCE
CORPORATION V. HIGGINS, SUPRA, WILL NOT BE APPLIED RETROACTIVELY,
EXCEPT THAT ANY TAX WHICH HAS BEEN PAID ON THE ISSUANCE OR TRANSFER OF
INSTRUMENTS FALLING WITHIN THE SCOPE OF THE DECISION WILL NOT BE
REFUNDED."  CUM. BULL.  1948-2, M.T. 32, P. 160. 

THE TERM "CERTIFICATE OF INDEBTEDNESS" HAS A SIMILAR ADMINISTRATIVE
BACKGROUND.  SINCE 1920 THE TREASURY HAS CONSIDERED CERTIFICATES OF
INDEBTEDNESS AS AKIN TO BONDS AND DEBENTURES, INCLUDING "ONLY
INSTRUMENTS HAVING THE GENERAL CHARACTER OF INVESTMENT SECURITIES, AS
DISTINGUISHED FROM INSTRUMENTS EVIDENCING DEBTS ARISING IN ORDINARY
TRANSACTION BETWEEN INDIVIDUALS  ...  ."  SALES TAX RULINGS, L.O. 909,
DECEMBER 1920, ST. 1-20-85; REGS. 55 (ART. 14), OCTOBER 26, 1920, 22
T.D. INT. REV. 502 (1920).  (FN12)  THE ESSENCE OF AN "INVESTMENT
SECURITY" IS, OF COURSE, MARKETABILITY, AND THIS BASIC FEATURE THE
LESLIE SALT NOTES DID NOT HAVE.  THE TREASURY ITSELF HAS ACKNOWLEDGED
THAT PROMISSORY NOTES LACKING THIS QUALITY HAVE NEVER BEEN TAXED AS
"CERTIFICATES OF INDEBTEDNESS," CUM. BULL.  1948-2, M.T. 32, P. 160
(SUPRA, P. 393), AND NONE OF THE LOWER COURT CASES, INCLUDING GENERAL
MOTORS, SUPRA, HAVE REGARDED INSTRUMENTS SUCH AS THE LESLIE SALT NOTES
AS BEING CERTIFICATES OF INDEBTEDNESS.  MOREOVER, IT MAY BE OBSERVED
THAT IN THE STAMP TAX SECTIONS OF THE INTERNAL REVENUE CODE OF 1954 THE
WORDS "CERTIFICATES OF INDEBTEDNESS," CONSISTENTLY WITH THIS
ADMINISTRATIVE HISTORY, HAVE BEEN ELIMINATED AS A SEPARATE TAXABLE
CATEGORY OF CORPORATE INSTRUMENTS, AND ARE EMPLOYED SIMPLY AS A TERM OF
ART EMBRACING ALL THE INSTRUMENTS TAXED, THAT IS, "BONDS," "DEBENTURES"
AND OTHER INSTRUMENTS IN REGISTERED FORM OR WITH COUPONS.  INTERNAL
REVENUE CODE OF 1954, SECS. 4311, 4381, 68A STAT. 514, 523, 26 U.S.C.
SECS. 4311, 4381. 

IN CONTRAST TO THE POSITION IT HAD CONSISTENTLY TAKEN THROUGHOUT THE
MANY YEARS PRECEDING THE DECISION IN THE GENERAL MOTORS CASE, THE
TREASURY NOW ARGUES "THAT CONGRESS INTENDED IN SECTION 1801 TO COVER
ALL LONG-TERM DEBT OBLIGATIONS SUPPORTED BY ELABORATE PROTECTIVE
COVENANTS AND THAT THIS IS SO REGARDLESS OF THE DETAILS OF THE PAPERS
USED, THE LANGUAGE BY WHICH THE TRANSACTION WAS CONSUMATED OR THE
NATURE OF THE PURCHASER'S BUSINESS."  THIS CONTENTION SEEMS TO STEM
FROM THE BELIEF THAT HAD THE "PRIVATE PLACEMENT" METHOD OF FINANCING
BEEN AS WIDELY KNOWN IN 1924 AS IT IS NOW, CONGRESS WOULD NOT HAVE
REPEALED THE PROMISSORY NOTE TAX IN ITS ENTIRETY, AS IT DID.  BUT IF
THAT BE SO IT IS NEVERTHELESS FOR CONGRESS, NOT THE COURTS, TO CHANGE
THE STATUTE.  WE MUST DEAL WITH THE STATUTE AS WE FIND IT, AND IF THESE
INSTRUMENTS ARE NEITHER "DEBENTURES" NOR "CERTIFICATES OF INDEBTEDNESS"
THEY MAY NOT BE TAXED UNDER THE PRESENT STATUTE.  THESE TAXES ARE BASED
NOT UPON THE NATURE OF THE TRANSACTION INVOLVED, BUT UPON THE CHARACTER
OF THE INSTRUMENTS EMPLOYED.  AS LONG AGO AS 1873, THIS COURT SAID:
"THE LIABILITY OF AN INSTRUMENT TO A STAMP DUTY, AS WELL AS THE AMOUNT
OF SUCH DUTY, IS DETERMINED BY THE FORM AND FACE OF THE INSTRUMENT, AND
CANNOT BE AFFECTED BY PROOF OF FACTS OUTSIDE OF THE INSTRUMENT
ITSELF."  UNITED STATES V. ISHAM, 17 WALL.  496, 504. 

THERE ARE PERSUASIVE REASONS FOR CONSTRUING "DEBENTURES" AND
"CERTIFICATES OF INDEBTEDNESS" IN ACCORDANCE WITH THE TREASURY'S
ORIGINAL INTERPRETATION OF THOSE TERMS IN THIS STATUTE'S ALTOGETHER
COMPARABLE PREDECESSORS.  IN NORWEGIAN NITROGEN PROD.  CO. V. UNITED
STATES, 288 U.S. 294, 315, MR. JUSTICE CARDOZO SAID: 

"ADMINISTRATIVE PRACTICE, CONSISTENT AND GENERALLY UNCHALLENGED, WILL
NOT BE OVERTURNED EXCEPT FOR VERY COGENT REASONS IF THE SCOPE OF THE
COMMAND IS INDEFINITE AND DOUBTFUL.  UNITED STATES V. MOORE, 95 U.S.
760, 763; LOGAN V. DAVIS, 233 U.S. 613, 627; BREWSTER V. GAGE, 280 U.S.
327, 336; FAWCUS MACHINE CO. V. UNITED STATES, 282 U.S. 375; INTERSTATE
COMMERCE COMMN.  V. N.Y., N.H.&H.R. CO., 287 U.S. 178.  THE PRACTICE
HAS PECULIAR WEIGHT WHEN IT INVOLVES A CONTEMPORANEOUS CONSTRUCTION OF
A STATUTE BY THE MEN CHARGED WITH THE RESPONSIBILITY OF SETTING ITS
MACHINERY IN MOTION, OF MAKING THE PARTS WORK EFFICIENTLY AND SMOOTHLY
WHILE THEY ARE YET UNTRIED AND NEW."    AGAINST THE TREASURY'S PRIOR
LONGSTANDING AND CONSISTENT ADMINISTRATIVE INTERPRETATION ITS MORE
RECENT AD HOC CONTENTION AS TO HOW THE STATUTE SHOULD BE CONSTRUED
CANNOT STAND.  MOREOVER, THAT ORIGINAL INTERPRETATION HAS HAD BOTH
EXPRESS AND IMPLIED CONGRESSIONAL ACQUIESCENCE, THROUGH THE 1918
AMENDMENT TO THE STATUTE (SUPRA, P. 391), WHICH HAS EVER SINCE
CONTINUED IN EFFECT, AND THROUGH CONGRESS HAVING LET THE ADMINISTRATIVE
INTERPRETATION REMAIN UNDISTURBED FOR SO MANY YEARS.  SEE CORN PRODUCTS
REFINING CO. V. COMMISSIONER, 350 U.S. 46, 53; NORWEGIAN NITROGEN
PROD.  CO. V. UNITED STATES, SUPRA, AT P. 313.  (FN13)  STILL FURTHER,
IT IS AN INTERPRETATION WHICH IS IN ACCORD WITH THE GENERALLY
UNDERSTOOD MEANING OF THE TERM "DEBENTURES."  CF. FIRST NAT. BANK V.
FLERSHEM, 290 U.S. 504, 508.  (FN14)  "THE WORDS OF THE STATUTE (A
STAMP TAX STATUTE) ARE TO BE TAKEN IN THE SENSE IN WHICH THEY WILL BE
UNDERSTOOD BY THAT PUBLIC IN WHICH THEY ARE TO TAKE EFFECT."  UNITED
STATES V. ISHAM, SUPRA, AT P. 504. 

CONSTRUING THE STATUTE AS WE HAVE, WE CONCLUDE THAT THE LESLIE SALT
NOTES ARE NEITHER "DEBENTURES" NOR "CERTIFICATES OF INDEBTEDNESS"
WITHIN ITS MEANING.  THE FACT THAT THE AGREEMENT UNDERLYING THESE NOTES
PROVIDES FOR THE SUBSTITUTION OF INSTRUMENTS WHICH MIGHT QUALIFY AS
DEBENTURES DOES NOT RENDER THESE NOTES TAXABLE, FOR UNTIL DEBENTURES
ARE IN EXISTENCE THE "DEBENTURE" TAX CANNOT BE IMPOSED. 

WE HOLD THESE NOTES ARE NOT SUBJECT TO STAMP TAXES UNDER THE
STATUTE.  AFFIRMED. 

FN1  SEC. 1800.  "THERE SHALL BE LEVIED, COLLECTED, AND PAID, FOR AND
IN RESPECT OF THE SEVERAL BONDS, DEBENTURES, OR CERTIFICATES OF STOCK
AND OF INDEBTEDNESS, AND OTHER DOCUMENTS, INSTRUMENTS, MATTERS, AND
THINGS MENTIONED AND DESCRIBED IN SECTIONS 1801 TO 1807, INCLUSIVE, OR
FOR OR IN RESPECT OF THE VELLUM, PARCHMENT, OR PAPER UPON WHICH SUCH
INSTRUMENTS, MATTERS, OR THINGS, OR ANY OF THEM, ARE WRITTEN OR
PRINTED, THE SEVERAL TAXES SPECIFIED IN SUCH SECTIONS."  53 STAT. 195,
26 U.S.C. SEC. 1800. 

SEC. 1801.  "ON ALL BONDS, DEBENTURES, OR CERTIFICATES OF
INDEBTEDNESS ISSUED BY ANY CORPORATION, AND ALL INSTRUMENTS, HOWEVER
TERMED, ISSUED BY ANY CORPORATION WITH INTEREST COUPONS OR IN
REGISTERED FORM, KNOWN GENERALLY AS CORPORATE SECURITIES, ON EACH $100
OF FACE VALUE OR FRACTION THEREOF, 11 CENTS:  PROVIDED, THAT EVERY
RENEWAL OF THE FOREGOING SHALL BE TAXED AS A NEW ISSUE  ...  ."  53
STAT. 195-196, 26 U.S.C. SEC. 1801. 

FN2  110 F. SUPP. 680. 

FN3  218 F.2D 91. 

FN4  DECISIONS IN THE COURTS OF APPEALS POINTING TOWARD THE
TAXPAYER'S VIEW ARE CURTIS PUBLISHING CO. V. SMITH, 220 F.2D 748 (C.A.
3D CIR.); NILES-BEMENT-POND CO. V. FITZPATRICK, 213 F.2D 305 (C.A.2D
CIR.); UNITED STATES V. ELY & WALKER DRY GOODS CO., 201 F.2D 584 (C.A.
8TH CIR.); ALLEN V. ATLANTA METALLIC CASKET CO., 197 F.2D 460 (C.A. 5TH
CIR.); BELDEN MFG. CO. V. JARECKI, 192 F.2D 211 (C.A. 7TH CIR.), AND IN
THE DISTRICT COURTS ARE BIJOU THEATRICAL ENTERPRISE CO. V. MENNINGER,
127 F. SUPP. 16 (D.C.E.D. MICH.); KNUDSEN CREAMERY CO. OF CALIFORNIA V.
UNITED STATES, 121 F. SUPP. 860 (D.C.S.D. CALIF.); SHAMROCK OIL & GAS
CO. V. CAMPBELL, 107 F. SUPP. 764 (D.C.N.D. TEX.); FOLLANSBEE STEEL
CORP. V. UNITED STATES, 4 P-H 1955 FED. TAX SERV. PARA. 72,715
(D.C.W.D. PA.); UNITED AIR LINES, INC. V. UNITED STATES, 4 P-H 1955
FED. TAX SERV. PARA. 72,567 (D.C.N.D. ILL.); MOTOR FINANCE CORP. V.
UNITED STATES, 4 P-H 1954 FED. TAX SERV. PARA. 72,706 (D.C.D.N.J.). 
DECISIONS IN THE COURTS OF APPEALS POINTING THE OTHER WAY ARE GENERAL
MOTORS ACCEPTANCE CORP. V. HIGGINS, 161 F.2D 593 (C.A.2D CIR.), AND
COMMERCIAL CREDIT CO. V. HOFFERBERT, 188 F.2D 574 (C.A. 4TH CIR.), AND
IN THE DISTRICT COURTS ARE S.S. PIERCE CO. V. UNITED STATES, 127 F.
SUPP. 396 (D.C.D. MASS.); H. KOBACKER & SONS CO. V. UNITED STATES, 124
F. SUPP. 211 (D.C.N.D. OHIO); GENERAL MOTORS ACCEPTANCE CORP. V.
HIGGINS, 120 F. SUPP. 737 (D.C.S.D.N.Y.); UNITED STATES V. GENERAL SHOE
CORP., 117 F. SUPP. 668 (D.C.M.D. TENN.); GAMBLE-SKOGMO, INC. V. KELM,
112 F. SUPP. 872 (D.C.D. MINN.); SHARON STEEL CORP. V. UNITED STATES, 4
P-H 1955 FED. TAX SERV. PARA. 72,716 (D.C.W.D. PA.); AND STUYVESANT
TOWN CORP. V. UNITED STATES, 124 CT. CL. 686, 111 F. SUPP. 243 (CT.
CL.). 

FN5  OTHER PROVISIONS OF THESE AGREEMENTS MAY BE SUMMARIZED AS
FOLLOWS:  (1) THE BASIC TERMS UNDER WHICH THE INSURANCE COMPANIES
AGREED TO "PURCHASE" THE LESLIE SALT NOTES.  (2) REPRESENTATIONS BY
LESLIE SALT THAT FINANCIAL STATEMENTS AND LISTS OF PROPERTY HOLDINGS
SUBMITTED BY IT WERE COMPLETE AND ACCURATE.  (3) VARIOUS CONDITIONS
PRECEDENT TO THE PURCHASE OF THE NOTES, INCLUDING:  OPINION BY COUNSEL
THAT THE TRANSACTION WAS AUTHORIZED UNDER THE APPLICABLE STATE LAW;
THAT THE BALANCE OF THE $4,000,000 LOAN WAS SUBSCRIBED; AND THAT THE
LOAN DOCUMENTS WOULD BE IN FORM SATISFACTORY TO COUNSEL.  (4) A
REPRESENTATION BY THE LENDER THAT IT WAS NOT ACQUIRING THE NOTE FOR THE
PURPOSE OF SALE.  (5) A PROVISION FOR PREPAYMENT BY LESLIE SALT OF
$285,000 PRINCIPAL AMOUNT FOR EACH YEAR, WITHOUT PREMIUM, AND OF AN
ADDITIONAL $285,000 ANNUALLY AT THE OPTION OF LESLIE SALT, ALSO WITHOUT
PREMIUM AS LONG AS THE PREPAYMENT CAME FROM EARNINGS OR LIQUIDATION OF
ASSETS.  LESLIE SALT HAD THE RIGHT TO MAKE FURTHER PREPAYMENTS, BUT
SUBJECT TO A PREMIUM OF 3%, WHICH AFTER THE FIRST THREE YEARS OF THE
NOTE DESCENDED IN AMOUNT AT THE RATE OF 1/4% EACH YEAR.  (6) LESLIE
SALT PROMISED TO PAY ALL ITS TAXES, KEEP ITS PROPERTY IN REPAIR, KEEP
ACCURATE RECORDS, INSURE ITS PROPERTIES, AND MAKE REGULAR FINANCIAL
STATEMENTS TO THE HOLDERS OF THE NOTES.  (7) LESLIE SALT PROMISED NOT
TO BECOME INDEBTED, NOT TO PAY DIVIDENDS OR RETIRE STOCK, EXCEPT AS
PROVIDED IN THE AGREEMENT, AND NOT TO CHANGE THE NATURE OF ITS BUSINESS
OR LET ITS WORKING CAPITAL DECLINE BENEATH A SPECIFIED AMOUNT. 

FN6  ACT OF JUNE 13, 1898, 30 STAT. 448, 451, 458; ACT OF MARCH 2,
1901, 31 STAT. 938, 940, 942; REPEALED BY THE ACT OF APRIL 12, 1902, 32
STAT. 96, 97; RE-ENACTED IN THE ACT OF OCTOBER 22, 1914, 38 STAT. 745,
753, 759, AND CARRIED FORWARD IN SUBSEQUENT REVENUE ACTS. 

FN7  ACT OF JUNE 13, 1898, 30 STAT. 448, 451, 459; REPEALED BY THE
ACT OF MARCH 2, 1901, 31 STAT. 942; RE-ENACTED IN THE ACT OF OCTOBER
22, 1914, 38 STAT. 745, 753, 760; CARRIED OVER IN THE REVENUE ACTS OF
1917, 1918, AND 1921, 40 STAT. 300, 319, 323,; 40 STAT. 1057, 1133,
1137; 42 STAT. 227, 301, 305, AND REPEALED BY THE REVENUE ACT OF 1924,
43 STAT. 253, 352. 

FN8  IN THIS SAME TREASURY DECISION "PROMISSORY NOTE" WAS DEFINED AS
"AN INSTRUMENT NOT UNDER SEAL CONTAINING A SIMPLE PROMISE TO PAY A SUM
OF MONEY AT A SPECIFIED TIME, SUCH AS IS COMMON IN EVERYDAY COMMERCIAL
USE, IS A PROMISSORY NOTE WITHIN THE MEANING OF THE STATUTE."  IT
SHOULD BE NOTED THAT THE QUALIFICATION WHICH WE HAVE ITALICIZED WAS
OMITTED FROM THE DEFINITION OF "PROMISSORY NOTE" IN THE REGULATIONS
PROMULGATED ONE YEAR LATER.  SEE NOTE 10, INFRA. 

FN9  THE THEN SOLICITOR OF INTERNAL REVENUE, MR. ROBERT N. MILLER,
EXPRESSED THIS VIEW: 

"THE WORDS 'ALL INSTRUMENTS, HOWEVER TERMED, ISSUED BY ANY
CORPORATION WITH INTEREST COUPONS OR IN REGISTERED FORM, KNOWN
GENERALLY AS CORPORATE SECURITIES,' WERE CLEARLY ADDED IN RECOGNITION
OF THE VARIED FORMS IN WHICH CORPORATE SECURITIES ARE ISSUED, AND TO
DEFEAT ANY ATTEMPT BY A CORPORATION TO AVOID THE TAX BY ISSUING
INSTRUMENTS OF THE GENERAL CHARACTER OF BONDS, DEBENTURES, OR
CERTIFICATES OF INDEBTEDNESS UNDER A DIFFERENT NAME."  SALES TAX
RULINGS, L.O. 909, DECEMBER 1920, ST. 1-20-85. 

FN10  "ART.  8.  INSTRUMENTS ISSUED IN NUMBERS, UNDER A TRUST
INDENTURE, ARE BONDS.  - INSTRUMENTS CONTAINING THE ESSENTIAL FEATURES
OF A PROMISSORY NOTE, BUT ISSUED IN SERIES, SECURED BY A TRUST
INDENTURE, EITHER IN REGISTERED FORM OR WITH COUPONS ATTACHED,
EMBODYING PROVISIONS FOR ACCELERATION OF MATURITY IN THE EVENT OF ANY
DEFAULT BY THE OBLIGOR, FOR OPTIONAL REGISTRATION IN THE CASE OF BEARER
BONDS, FOR AUTHENTICATION BY THE TRUSTEE, AND IN SOME INSTANCES FOR
REDEMPTION BEFORE MATURITY, OR SIMILAR PROVISIONS, ARE BONDS WITHIN THE
MEANING OF THE STATUTE, WHETHER CALLED BONDS, DEBENTURES, OR NOTES." 
TREASURY REGULATIONS 55, SEPTEMBER 13, 1924. 

THE REGULATIONS PRECEDING THE REPEAL OF THE TAX ON PROMISSORY NOTES
PROVIDED: 

"ART. 8.  INSTRUMENTS ISSUED BY CORPORATIONS IN NUMBERS, UNDER A TRUST
INDENTURE, ARE BONDS.  - INSTRUMENTS CONTAINING THE ESSENTIAL FEATURES
OF A PROMISSORY NOTE, BUT ISSUED BY CORPORATIONS IN SERIES, SECURED BY
A TRUST INDENTURE, EITHER IN REGISTERED FORM OR WITH COUPONS ATTACHED,
EMBODYING PROVISIONS FOR ACCELERATION OF MATURITY IN THE EVENT OF ANY
DEFAULT BY THE OBLIGOR, FOR OPTIONAL REGISTRATION IN THE CASE OF BEARER
BONDS, FOR AUTHENTICATION BY THE TRUSTEE, AND IN SOME INSTANCES FOR
REDEMPTION BEFORE MATURITY, OR SIMILAR PROVISIONS, ARE BONDS WITHIN THE
MEANING OF THE STATUTE, WHETHER CALLED BONDS, DEBENTURES, OR NOTES. 

     *         *         *         *         * 

"ART. 48.  'PROMISSORY NOTE' DEFINED.  - A PROMISSORY NOTE IS AN
UNCONDITIONAL PROMISE IN WRITING MADE BY ONE PERSON TO ANOTHER SIGNED
BY THE MAKER ENGAGING TO PAY ON DEMAND OR AT A FIXED OR DETERMINABLE
FUTURE TIME, A SUM CERTAIN IN MONEY TO SUCH OTHER PERSON OR TO ORDER OR
TO BEARER, FREE FROM RESTRICTIONS AS TO REGISTRATION OR TRANSFER AND
USUALLY WITHOUT COUPONS."  TREASURY REGULATIONS 55, JUNE 11, 1919. 

THE 1920 REVISION OF REGULATIONS 55 WAS SUBSTANTIALLY IDENTICAL, AS
WERE THE REGULATIONS ISSUED UNDER THE REVENUE ACT OF 1921 (REGULATIONS
55, ARTICLES 8 AND 35). 

FN11  SEC. 113.50.  "SCOPE OF TAX.  SECTION 1801 IMPOSES A TAX UPON
THE ISSUE BY ANY CORPORATION OF BONDS, DEBENTURES, CERTIFICATES OF
INDEBTEDNESS, AND ALL INSTRUMENTS, HOWEVER TERMED, WITH INTEREST
COUPONS OR IN REGISTERED FORM AND KNOWN GENERALLY AS CORPORATE
SECURITIES.  EVERY RENEWAL OF THE ABOVE DESCRIBED INSTRUMENTS IS
TAXABLE AS A NEW ISSUE." 

SEC. 113.55.  "ISSUES SUBJECT TO TAX.  ORDINARILY, A CORPORATE
INSTRUMENT STYLED A BOND, DEBENTURE, OR CERTIFICATE OF INDEBTEDNESS IS
SUBJECT TO THE TAX.  HOWEVER, THE TAXABILITY OF AN INSTRUMENT IS NOT
DETERMINED BY THE NAME ALONE BUT DEPENDS UPON ALL THE CIRCUMSTANCES,
SUCH AS THE NAME, FORM, AND TERMS OF THE INSTRUMENT, ETC.  HENCE, AN
INSTRUMENT, HOWEVER DESIGNATED, HAVING ALL THE ESSENTIAL
CHARACTERISTICS OF A BOND, DEBENTURE, OR CERTIFICATE OF INDEBTEDNESS IS
TAXABLE AS SUCH.  SIMILARLY, AN INSTRUMENT ISSUED WITH INTEREST
COUPONS, OR WITH PROVISION FOR REGISTRATION, AND COMING WITHIN THE
CLASS KNOWN GENERALLY AS CORPORATE SECURITIES WILL BE HELD SUBJECT TO
THE TAX REGARDLESS OF THE NAME BY WHICH IT MAY BE CALLED."  26 CFR,
1944 CUM. SUPP., SECS. 113.50, 113.55. 

FN12  THE RULING BY THE SOLICITOR OF INTERNAL REVENUE SAID: 

"THE CENTURY DICTIONARY DEFINES 'DEBENTURE' AS 'A WRITING
ACKNOWLEDGING A DEBT; SPECIFICALLY, AN INSTRUMENT, GENERALLY UNDER
SEAL, FOR THE REPAYMENT OF MONEY LENT; USUALLY, IF NOT EXCLUSIVELY,
USED AS OBLIGATIONS OF CORPORATIONS OR LARGE MONEYED COPARTNERSHIPS,
ISSUED IN A FORM CONVENIENT TO BE BOUGHT AND SOLD AS INVESTMENTS.' 
THIS DEFINITION WAS ADOPTED BY THE COURT IN BARTON NAT. BANK V. ATKINS,
72 VT. 55; 47 ATL. 176, 180.  THE TERM 'CERTIFICATES OF INDEBTEDNESS'
HAS ALSO COME TO HAVE IN COMMERCIAL USE A SIMILAR MEANING.  IN DENVER
V. HOME SAVINGS BANK, 236 U.S. 101, 105, THE COURT SAID: 

"'WHAT IS TRUE ABOUT BONDS IS TRUE ABOUT CERTIFICATES OF
INDEBTEDNESS.  INDEED IT IS DIFFICULT TO SEE ANY DISTINCTION BETWEEN
THEM AS THEY ARE COMMONLY KNOWN TO THE BUSINESS WORLD.  THE ESSENCE OF
EACH IS THAT THEY CONTAIN A PROMISE UNDER SEAL OF THE CORPORATION TO
PAY A CERTAIN SUM TO ORDER OR BEARER.' 

"IF THE TERM 'CERTIFICATES OF INDEBTEDNESS' STANDING BY ITSELF BE
SUSCEPTIBLE OF A BROADER MEANING THAN THAT GIVEN TO IT ABOVE, ITS
ASSOCIATION HERE WITH BONDS AND DEBENTURES EXCLUDES SUCH BROADER
MEANING.  THE MAXIM NOSCITUR A SOCIIS APPLIES. 

"A CONSIDERATION OF TITLE XI AS A WHOLE SUPPORTS THE CONCLUSION ABOVE
ARRIVED AT.  THREE CLASSES OF PAPER ISSUED BY INDIVIDUALS,
PARTNERSHIPS, AND CORPORATIONS ARE SUBJECT THEREUNDER TO STAMP TAX:
BONDS OF INDEBTEDNESS (SUBDIVISION 1), CERTIFICATES OF STOCK
(SUBDIVISION 3), AND DRAFTS OR CHECKS AND PROMISSORY NOTES (SUBDIVISION
6); I.E., INSTRUMENTS POSSESSING TO A GREATER OR LESS EXTENT THE
ATTRIBUTES OF COMMERCIAL PAPER. 

"THE PREMISES LEAD INEVITABLY TO THE CONCLUSION THAT IT WAS NOT THE
INTENTION OF CONGRESS TO TAX UNDER SUBDIVISION 1 OF THE SAID SCHEDULE A
EVERY EVIDENCE OF INDEBTEDNESS OTHER THAN THOSE INCLUDED UNDER THE
HEADS OF SHARES OR CERTIFICATES OF STOCK, PROMISSORY NOTES, OR BILLS OF
EXCHANGE, BUT ONLY THOSE EVIDENCES OF INDEBTEDNESS WHICH HAVE THE
GENERAL CHARACTER OF INVESTMENT SECURITIES AND WHICH MAY PROPERLY BE
INCLUDED UNDER THE TERM 'BONDS OF INDEBTEDNESS.'  THE DEFINITION OF
'CERTIFICATE OF INDEBTEDNESS' AS 'PRIMARILY ANY INSTRUMENT
ACKNOWLEDGING LIABILITY FOR THE PAYMENT OF MONEY, NOT IN THE RECOGNIZED
FORM OF A PROMISSORY NOTE OR BILL OF EXCHANGE,' CONTAINED IN T.D. 2713,
IS TOO INCLUSIVE AND DOES NOT SUFFICIENTLY DELIMIT THE INSTRUMENTS
INCLUDED IN THE TERM. 

"IT IS THEREFORE HELD THAT THE TERM 'CERTIFICATE OF INDEBTEDNESS' AS
USED IN SUBDIVISION 1 OF SCHEDULE A, TITLE XI, REVENUE ACT OF 1918,
INCLUDES ONLY INSTRUMENTS HAVING THE GENERAL CHARACTER OF INVESTMENT
SECURITIES, AS DISTINGUISHED FROM INSTRUMENTS EVIDENCING DEBTS ARISING
IN ORDINARY TRANSACTION BETWEEN INDIVIDUALS; AND THAT CONDITIONAL BILLS
OF SALE ARE NOT CERTIFICATES OF INDEBTEDNESS.    "T.D. 2713 SHOULD BE
MODIFIED TO CONFORM WITH THIS HOLDING. 

"ROBERT N. MILLER, 

"SOLICITOR OF INTERNAL REVENUE." 

FN13  IT SHOULD BE SAID THAT THE ADMINISTRATIVE PRACTICE, WHICH WE
CONSIDER AS CRUCIAL HERE, WAS NOT BROUGHT TO THE ATTENTION OF THE COURT
OF APPEALS IN NILES-BEMENT-POND CO. V. FITZPATRICK, SUPRA.  NOR DO
GENERAL MOTORS ACCEPTANCE CORP. V. HIGGINS, SUPRA, OR ANY OF THE CASES
CITED IN NOTE 4, SUPRA, ADVERT TO THAT PRACTICE. 

FN14  AS LONG AGO AS 1916, NO LESS AN AUTHORITY ON CORPORATE FINANCE
THAN THE LATE MR. F.L. STETSON DESCRIBED DEBENTURES IN THE FOLLOWING
TERMS: 

"IN THE UNITED STATES, AS ALREADY MENTIONED, THE TERM 'DEBENTURE' IS
UNDERSTOOD TO MEAN SERIAL OBLIGATIONS OF A CORPORATION NOT SECURED BY A
SPECIFIC MORTGAGE, PLEDGE OR ASSIGNMENT OF PROPERTY.  OF COURSE A
SERIES OF DEBENTURES MAY BE ISSUED WITHOUT THE EXECUTION OF ANY
INDENTURE RELATING THERETO.  PRIOR TO 1900 THE FEW ISSUES THAT HAD BEEN
MADE OF SUCH DEBENTURES WERE NOT ACCOMPANIED BY A TRUST AGREEMENT.  IN
SUCH CASE THE RIGHTS AND PRIVILEGES GIVEN TO BONDHOLDERS WERE SET FORTH
AT LENGTH IN THE OBLIGATION, THUS MAKING A SOMEWHAT LENGTHY
INSTRUMENT.  SINCE AN ISSUE OF DEBENTURES UNDER TRUST AGREEMENTS BY THE
LAKE SHORE R.R. CO. AND BY THE NEW YORK CENTRAL, THE CUSTOM OF ADOPTING
SUCH AGREEMENTS HAS BECOME GENERAL.  ORIGINALLY IN 1893 THE GENERAL
ELECTRIC COMPANY MADE A LARGE ISSUE OF DEBENTURES WITHOUT AN AGREEMENT,
BUT AT THE TIME OF THE REFUNDING IN 1912 A TRUST AGREEMENT WAS
EXECUTED."  "PREPARATION OF CORPORATE BONDS, MORTGAGES, COLLATERAL
TRUSTS AND DEBENTURE INDENTURES," IN SOME LEGAL PHASES OF CORPORATE
FINANCING, REORGANIZATION AND REGULATION, P. 66 (ASSN. OF THE BAR OF
THE CITY OF NEW YORK, 1917). 
..END :















NATIONAL LABOR RELATIONS BOARD V. COCA-COLA BOTTLING CO. OF LOUISVILLE,
INC. 350 U.S. 264 


NO. 79.  ARGUED JANUARY 17, 1956 - DECIDED FEBRUARY 27, 1956 - 219 F.2D
441, REVERSED AND REMANDED. 


A LABOR UNION INSTITUTED PROCEEDINGS BEFORE THE NATIONAL LABOR
RELATIONS BOARD CHARGING AN EMPLOYER WITH UNFAIR LABOR PRACTICES IN
VIOLATION OF SECS. 8(A)(1) AND 8(A)(3) OF THE NATIONAL LABOR RELATIONS
ACT.  A COMPLAINT BASED ON THESE CHARGES WAS ISSUED.  AT THE HEARING,
THE EMPLOYER CHALLENGED THE BOARD'S JURISDICTION ON THE GROUND THAT THE
UNION HAD NOT SATISFIED THE REQUIREMENTS OF SEC. 9(H), WHICH REQUIRES
THE FILING OF NON-COMMUNIST AFFIDAVITS BY ALL "OFFICERS" OF THE UNION
AND OF ANY NATIONAL OR INTERNATIONAL LABOR ORGANIZATION OF WHICH IT IS
AN AFFILIATE, AND OFFERED TO PROVE THAT THE REGIONAL DIRECTOR OF THE
CIO FOR KENTUCKY, WHO HAD NOT FILED SUCH AN AFFIDAVIT, WAS AN "OFFICER"
WITHIN THE MEANING OF SEC. 9(H).  HELD: 

1.  THE BOARD ERRED IN RULING THAT, DURING THE COURSE OF THE UNFAIR
LABOR PRACTICE HEARING, THE EMPLOYER COULD NOT SHOW THAT THE LABOR
ORGANIZATION HAD NOT COMPLIED WITH SEC. 9(H) AND THEREBY ESTABLISH THE
BOARD'S WANT OF JURISDICTION.  LABOR BOARD V. HIGHLAND PARK
MANUFACTURING CO., 341 U.S. 322.  PP. 266-268. 

2.  THE BOARD'S CONSTRUCTION OF THE WORD "OFFICER" IN SEC. 9(H) AS
MEANING "ANY PERSON OCCUPYING A POSITION IDENTIFIED AS AN OFFICE IN THE
CONSTITUTION OF THE LABOR ORGANIZATION," AND ITS FINDING THAT THE
REGIONAL DIRECTOR OF THE CIO FOR KENTUCKY IS NOT SUCH AN "OFFICER," ARE
SUSTAINED.  PP. 268-269. 

NATIONAL LABOR RELATIONS BOARD V. COCA-COLA BOTTLING CO. OF LOUISVILLE,
INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

CHARGING RESPONDENT WITH COERCION OF ITS EMPLOYEES AND DISCRIMINATION
AGAINST PRO-UNION EMPLOYEES, LOCAL 20 OF THE UNITED BREWERY WORKERS,
CIO, INSTITUTED PROCEEDINGS BEFORE THE NATIONAL LABOR RELATIONS BOARD
FOR VIOLATION OF SECS. 8(A)(1) AND 8(A)(3) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED, 61 STAT. 136, 140, 65 STAT. 601, 602, WHICH
OUTLAW SUCH UNFAIR LABOR PRACTICES.  PURSUANT TO THIS CHARGE, A
COMPLAINT WAS ISSUED; AT THE HEARING WHICH FOLLOWED, RESPONDENT
CHALLENGED THE JURISDICTION OF THE BOARD UPON THE GROUND THAT THE UNION
HAD NOT SATISFIED THE REQUIREMENTS OF SEC. 9(H) OF THE ACT.  SECTION
9(H) PROVIDES THAT "NO COMPLAINT SHALL BE ISSUED PURSUANT TO AN UNFAIR
LABOR PRACTICE CHARGE MADE BY A LABOR ORGANIZATION  ...  UNLESS THERE
IS ON FILE WITH THE BOARD AN AFFIDAVIT EXECUTED CONTEMPORANEOUSLY OR
WITHIN THE PRECEDING TWELVE-MONTH PERIOD BY EACH OFFICER OF SUCH LABOR
ORGANIZATION AND THE OFFICERS OF ANY NATIONAL OR INTERNATIONAL LABOR
ORGANIZATION OF WHICH IT IS IS AN AFFILIATE OR CONSTITUENT UNIT 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."  RESPONDENT OFFERED TO PROVE, BY EVIDENCE OF HIS DUTIES AND
FUNCTIONS, THAT TAYLOR, THE REGIONAL DIRECTOR OF THE CIO FOR KENTUCKY,
WHO ADMITTEDLY HAD NOT FILED A NON-COMMUNIST AFFIDAVIT, WAS AN
"OFFICER" WITHIN THE MEANING OF SEC. 9(H).  THE BOARD REJECTED THIS
CONTENTION ON TWO GROUNDS:  FIRST, "THE COMPLIANCE STATUS OF A UNION
...  IS A MATTER FOR ADMINISTRATIVE DETERMINATION, AND NOT ONE TO BE
LITIGATED IN COMPLAINT OR REPRESENTATION PROCEEDINGS."  108 N.L.R.B.
490, 491.  SECOND, "HAD THE RESPONDENT ESTABLISHED IN A COLLATERAL
PROCEEDING WHAT IT HAD OFFERED TO PROVE AT THE HEARING HEREIN, WE ARE
SATISFIED, AND FIND, THAT UNDER THE BOARD'S PRESENT 'CONSTITUTIONAL'
TEST, SUCH PROOF WOULD FALL SHORT OF SUBSTANTIATING THE RESPONDENT'S
CONTENTION THAT TAYLOR WAS AN OFFICER OF THE CIO."  108 N.L.R.B. 490,
492-493. 

ON THE MERITS, THE BOARD FOUND THAT RESPONDENT HAD COMMITTED THE
UNFAIR PRACTICES CHARGED.  WHEN THE BOARD SOUGHT ENFORCEMENT OF ITS
DECREE, THE COURT OF APPEALS FOR THE SIXTH CIRCUIT, WITHOUT PASSING
UPON THE UNFAIR PRACTICES, REMANDED THE CASE TO THE BOARD FOR
DETERMINATION OF THE ISSUE TENDERED BY RESPONDENT IN ITS CLAIM THAT
TAYLOR'S FUNCTIONS CONSTITUTED HIM AN "OFFICER."  219 F.2D 441.  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTIONS RAISED IN
THE ADMINISTRATION OF THE STATUTE.  350 U.S. 819. 

THESE QUESTIONS ARE TWO IN NUMBER:  (1) MAY AN EMPLOYER, DURING THE
COURSE OF AN UNFAIR LABOR PRACTICE HEARING, SHOW THAT A LABOR
ORGANIZATION HAS NOT COMPLIED WITH SEC. 9(H) AND THEREBY ESTABLISH THE
BOARD'S WANT OF JURISDICTION?  (2) ASSUMING THE ANSWER TO THIS QUESTION
IS "YES," IS THE BOARD'S CONSTRUCTION OF "OFFICER" IN SEC. 9(H) - VIZ.,
"ANY PERSON OCCUPYING A POSITION IDENTIFIED AS AN OFFICE IN THE
CONSTITUTION OF THE LABOR ORGANIZATION" - PROPER?  29 CFR, 1955 SUPP.,
SEC. 102.13.* 

*THE ONLY QUALIFICATION TO THIS PRACTICALLY AUTOMATIC DEFINITION OF
WHO IS OR IS NOT AN OFFICER IS THE FOLLOWING PROVISION OF SEC.
102.13(B)(3) OF THE BOARD'S RULES AND REGULATIONS: 

"  ...  WHERE THE BOARD HAS REASONABLE CAUSE TO BELIEVE THAT A LABOR
ORGANIZATION HAS OMITTED FROM ITS CONSTITUTION THE DESIGNATION OF ANY
POSITION AS AN OFFICE FOR THE PURPOSE OF EVADING OR CIRCUMVENTING THE
FILING REQUIREMENTS OF SECTION 9(H) OF THE ACT, THE BOARD MAY, UPON
APPROPRIATE NOTICE, CONDUCT AN INVESTIGATION TO DETERMINE THE FACTS IN
THAT REGARD, AND WHERE THE FACTS APPEAR TO WARRANT SUCH ACTION THE
BOARD MAY REQUIRE AFFIDAVITS FROM PERSONS OTHER THAN INCUMBENTS OF
POSITIONS IDENTIFIED BY THE CONSTITUTION AS OFFICES BEFORE THE LABOR
ORGANIZATION WILL BE RECOGNIZED AS HAVING COMPLIED WITH SECTION 9(H) OF
THE ACT."  29 CFR.  1955 SUPP., SEC. 102.13(B)(3). 

WE INTERPRET THIS TO MEAN THAT THE APPLICATION OF THIS EXCEPTION IS
WHOLLY WITHIN THE BOARD'S CONTROL AND CANNOT BE LITIGATED IN AN UNFAIR
LABOR PRACTICE PROCEEDING. 

THE COURT OF APPEALS ANSWERED THE FIRST QUESTION IN THE AFFIRMATIVE
UPON THE AUTHORITY OF LABOR BOARD V. HIGHLAND PARK MANUFACTURING CO.,
341 U.S. 322.  IN THAT CASE AN EMPLOYER, DEFENDANT IN AN UNFAIR LABOR
PRACTICE SUIT, CHALLENGED THE BOARD'S INTERPRETATION OF "NATIONAL OR
INTERNATIONAL LABOR ORGANIZATION" IN SEC. 9(H).  THE AGENCY HAD READ
THIS LANGUAGE AS NOT INCLUDING LABOR FEDERATIONS, I.E., THE AFL OR
CIO.  THEREFORE, IT HAD NOT REQUIRED AFFIDAVITS FROM OFFICERS OF THESE
FEDERATIONS.  HIGHLAND PARK'S CHALLENGE WAS REJECTED BY THE BOARD UNDER
ITS THEN SETTLED POLICY THAT THE EMPLOYER COULD NOT RAISE NONCOMPLIANCE
WITH SEC. 9(H) AS A BAR TO A PROCEEDING ON AN UNFAIR LABOR PRACTICE. 
THE COURT OF APPEALS HELD TO THE CONTRARY, 184 F.2D 98, AND WE AFFIRMED
ITS DECISION. 

THE BOARD DISTINGUISHES HIGHLAND PARK BY SUGGESTING THAT HERE THE
"EMPLOYER SEEKS TO QUESTION ONLY THE FACT OF COMPLIANCE, AS
DISTINGUISHED FROM THE NECESSITY OF COMPLIANCE."  THE GENESIS OF THIS
DISTINCTION COMES FROM THE FOLLOWING IN HIGHLAND PARK:  "IF THERE WERE
DISPUTE AS TO WHETHER THE C.I.O. HAD FILED THE REQUIRED AFFIDAVITS OR
WHETHER DOCUMENTS FILED MET THE STATUTORY REQUIREMENTS AND THE BOARD
HAD RESOLVED THAT QUESTION IN FAVOR OF THE LABOR ORGANIZATIONS, A
DIFFERENT QUESTION WOULD BE PRESENTED."  341 U.S. 322, 325.  THE BOARD
MISCONCEIVES THE SIGNIFICANCE OF THE PASSAGE.  BOTH HIGHLAND PARK AND
THIS CASE INVOLVE THE SCOPE OF SEC. 9(H), THE MEANING TO BE DERIVED
FROM ITS LANGUAGE; NEITHER CASE INVOLVES AN INQUIRY INTO DISPUTED
FACTS, THE SITUATION REFERRED TO IN HIGHLAND PARK.  ACCEPTANCE OF A
DIFFERENTIATION BETWEEN THESE CASES UPON ANY SUCH THEORY AS THAT
SUGGESTED BY THE BOARD WOULD MAKE OF LAW TOO THIN A DIALECTIC
ENTERPRISE. 

BUT IF THE BOARD'S DISTINCTION IS OVERLY SUBTLE, ITS REASON FOR
ATTEMPTING A DISTINCTION HAS FORCE, NAMELY, A CONCERN WITH "THE NEED TO
EXPEDITE THE HEARING OF CASES AND THE RESOLUTION OF ISSUES ON THEIR
MERITS  ...  ."  108 N.L.R.B. 490, 491.  MUCH MAY BE SAID FOR THE CLAIM
THAT AN EMPLOYER SHOULD NOT BE PERMITTED TO DISRUPT OR DELAY COMPLAINT
OR REPRESENTATION CASES BY RAISING QUESTIONS RESPECTING SEC. 9(H).  BUT
AFTER HIGHLAND PARK THE ARGUMENT COMES TOO LATE. 

IN ANY EVENT, WHETHER THE IMPEDIMENT TO THE EFFECTIVENESS OF THE
ADMINISTRATIVE PROCESS IN DETERMINING THE MERITS OF A CHARGE OF UNFAIR
LABOR PRACTICE MAY BE SERIOUS OR NEGLIGIBLE BY INJECTING INTO IT THE
SUBSIDIARY ISSUE OF COMPLIANCE WITH SEC. 9(H), DEPENDS UPON THE SCOPE
OF THE INQUIRY OPENED UP BY THE LATTER ISSUE.  THIS BRINGS US TO THAT
QUESTION.  OUR CONCERN SPECIFICALLY IS WITH THE APPROPRIATE
CONSTRUCTION OF "OFFICERS" IN SEC. 9(H).  THE COURT OF APPEALS REJECTED
THE BOARD'S "CONSTITUTIONAL" RULE FOR DETERMINING WHO IS A UNION
"OFFICER" IN FAVOR OF A SO-CALLED "FUNCTIONAL" TEST.  PRESUMABLY THIS
TEST WOULD REQUIRE THOSE MEMBERS OF A UNION WHO ARE EFFECTIVE
INSTRUMENTS OF ITS POLICIES TO FILE AFFIDAVITS AS "OFFICERS,"
REGARDLESS OF THE FACT THAT THEY DO NOT FILL THE OFFICES DESIGNATED BY
THEIR ORGANIZATION'S CONSTITUTION. 

NEITHER SEC. 9(H) ITSELF NOR ITS LEGISLATIVE HISTORY ATTEMPTS A
DEFINITION OF "OFFICERS."  "OFFICERS" IS A WORD OF FAMILIAR USAGE AND
"AFTER ALL, LEGISLATION WHEN NOT EXPRESSED IN TECHNICAL TERMS IS
ADDRESSED TO THE COMMON RUN OF MEN AND IS THEREFORE TO BE UNDERSTOOD
ACCORDING TO THE SENSE OF THE THING, AS THE ORDINARY MAN HAS A RIGHT TO
RELY ON ORDINARY WORDS ADDRESSED TO HIM."  ADDISON V. HOLLY HILL CO.,
322 U.S. 607, 618.  "OFFICERS" NORMALLY MEANS THOSE WHO HOLD DEFINED
OFFICES.  IT DOES NOT MEAN THE BOYS IN THE BACK ROOM OR OTHER AGENCIES
OF INVISIBLE GOVERNMENT, WHETHER IN POLITICS OR IN THE TRADE-UNION
MOVEMENT.  A DEFINITION OF OFFICERS AS "ANY PERSON OCCUPYING A POSITION
IDENTIFIED AS AN OFFICE IN THE CONSTITUTION OF THE LABOR ORGANIZATION"
ACCORDS WITH THIS LAY UNDERSTANDING.  29 CFR.  1955 SUPP., SEC.
102.13. 

BUT IF THE WORD BE DEEMED TO HAVE A PECULIAR CONNOTATION FOR THOSE
INTIMATE WITH TRADE-UNION AFFAIRS, IT IS INCUMBENT UPON US TO GIVE THE
WORD ITS TECHNICAL MEANING, BOSTON SAND CO. V. UNITED STATES, 278 U.S.
41, 48, FOR SEC. 9(H) IS AN INTEGRAL PART OF A STATUTE WHOSE SPONSORS
WERE FAMILIAR WITH LABOR ORGANIZATION AND LABOR PROBLEMS AND WHICH WAS
DOUBTLESS DRAWN BY SPECIALISTS IN LABOR RELATIONS.  IF SUCH BE THE
CASE, THEN OF COURSE THE BOARD'S EXPERTNESS COMES INTO PLAY.  WE SHOULD
AFFIRM ITS DEFINITION IF THAT DEFINITION DOES NOT APPEAR TOO
FARFETCHED, LABOR BOARD V. HEARST PUBLICATIONS, INC., 322 U.S. 111,
130.  THE STATUTE PROVIDES SOME EVIDENCE TO SUPPORT THE BOARD, FOR SEC.
9(F), WHICH REQUIRES UNIONS TO REPORT SPECIFIC INFORMATION TO THE
SECRETARY OF LABOR, DIFFERENTIATES BETWEEN "OFFICERS" AND "AGENTS" OF
LABOR ORGANIZATIONS. 

WE CONCLUDE THAT THE BOARD'S CRITERION FOR DETERMINING WHO ARE
OFFICERS BOTH ACCORDS WITH THE LAY DEFINITION OF THE WORD AND IS A
REASONABLE, IF INDEED NOT A COMPELLING, CONSTRUCTION OF THE STATUTE. 
ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS.  REVERSED AND
REMANDED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









MASTRO PLASTICS CORP. V. NATIONAL LABOR RELATIONS BOARD 350 U.S. 270 


NO. 19.  ARGUED OCTOBER 17, 1955 - DECIDED FEBRUARY 27, 1956 - 214 F.2D
462, AFFIRMED. 


1.  IN THE COLLECTIVE-BARGAINING CONTRACT HERE INVOLVED, THE UNION'S
UNDERTAKING "TO REFRAIN FROM ENGAGING IN ANY STRIKE OR WORK STOPPAGE
DURING THE TERM OF THIS AGREEMENT" DID NOT WAIVE THE EMPLOYEES' RIGHT
TO STRIKE SOLELY IN PROTEST AGAINST UNFAIR LABOR PRACTICES OF THEIR
EMPLOYERS.  PP. 279-284. 

(A)  THE WORDS "ANY STRIKE" DO NOT EXCLUDE ALL ROOM FOR
INTERPRETATION OR NECESSARILY INLCUDE ALL STRIKES, EVEN THOSE AGAINST
UNLAWFUL PRACTICES DESTRUCTIVE OF THE FOUNDATION UPON WHICH COLLECTIVE
BARGAINING MUST REST.  PP. 281-283. 

(B)  SECTION 13 OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
PROVIDING THAT "NOTHING IN THIS ACT, EXCEPT AS SPECIFICALLY PROVIDED
FOR HEREIN, SHALL BE CONSTRUED SO AS EITHER TO INTERFERE WITH OR IMPEDE
OR DIMINISH IN ANY WAY THE RIGHT TO STRIKE, OR TO AFFECT THE
LIMITATIONS OR QUALIFICATIONS ON THAT RIGHT," DOES NOT PRECLUDE
RELIANCE UPON THE ACT FOR SUPPORT OF THIS INTERPRETATION OF THE STRIKE
WAIVER CLAUSE.  PP. 283-284. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, INCLUDING THE EXPRESS FINDING
OF THE NATIONAL LABOR RELATIONS BOARD THAT THE PURPOSE OF THE STRIKE
HERE INVOLVED WAS NOT TO "TERMINATE OR MODIFY" THE EXISTING COLLECTIVE
BARGAINING CONTRACT BUT WAS SOLELY TO PROTEST AGAINST THE EMPLOYERS'
UNFAIR LABOR PRACTICES DESIGNED TO OUST THE EMPLOYEES' BARGAINING
REPRESENTATIVE, HELD THAT SEC. 8(D) OF THE NATIONAL LABOR RELATIONS
ACT, AS AMENDED, DID NOT DEPRIVE THE INDIVIDUAL STRIKERS OF THEIR
STATUS AS EMPLOYEES, EVEN THOUGH THEY STRUCK WITHIN THE 60-DAY WAITING
PERIOD PRESCRIBED BY SEC. 8(D)(4) FOLLOWING THE UNION'S WRITTEN NOTICE
OF ITS DESIRE TO MODIFY ITS EXISTING CONTRACT WITH THE EMPLOYERS.  PP.
284-289. 

(A)  SINCE THE 60-DAY WAITING PERIOD PRESCRIBED BY SEC. 8(D)(4)
BEGINS TO RUN UPON THE GIVING OF NOTICE OF A DESIRE TO "TERMINATE OR
MODIFY" AN EXISTING CONTRACT AND ITS PURPOSE IS TO RELIEVE THE PARTIES
DURING THE RENEGOTIATION PERIOD FROM THE ECONOMIC PRESSURE OF A STRIKE
OR LOCKOUT IN RELATION TO THE SUBJECTS OF THE NEGOTIATIONS, THE
PROVISION THAT ANY EMPLOYEE WHO ENGAGES IN A STRIKE DURING SUCH WAITING
PERIOD SHALL LOSE HIS STATUS AS AN EMPLOYEE SHOULD BE CONSTRUED AS
REFERRING TO STRIKES RELATING TO THE SUBJECTS OF THE NEGOTIATIONS AND
NOT TO STRIKES DESIGNED SOLELY TO PROTEST AGAINST UNFAIR LABOR
PRACTICES OF THE EMPLOYERS.  PP. 285-286. 

(B)  A DIFFERENT CONSTRUCTION WOULD PRODUCE INCONGRUOUS RESULTS.  PP.
286-287. 

(C)  MUCH MORE EXPLICIT LANGUAGE WOULD BE NEEDED TO DEPRIVE EMPLOYEES
OF THEIR RIGHT TO STRIKE IN PROTEST AGAINST VIOLATIONS OF SECS. 7 AND
8(A), WHICH PROTECT THEIR FREEDOM OF CONCERTED ACTION AND FREEDOM OF
CHOICE OF REPRESENTATIVES.  P. 287. 

(D)  WHILE THE RELEVANT LEGISLATIVE HISTORY PROVIDES NO CONCLUSIVE
ANSWER TO THE PROBLEM OF INTERPRETATION HERE INVOLVED, IT IS CONSISTENT
WITH THE CONCLUSION HERE REACHED.  PP. 287-289. 

(E)  THE CROSS-REFERENCES TO SECS. 8, 9 AND 10 OF THE ACT IN THE LOSS
OF-STATUS CLAUSE DO NOT REQUIRE A DIFFERENT RESULT.  P. 289. 

MASTRO PLASTICS CORP. ET AL. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS TWO PRINCIPAL QUESTIONS:  (1) WHETHER, IN THE
COLLECTIVE-BARGAINING CONTRACT BEFORE US, THE UNION'S UNDERTAKING "TO
REFRAIN FROM ENGAGING IN ANY STRIKE OR WORK STOPPAGE DURING THE TERM OF
THIS AGREEMENT" WAIVES NOT ONLY THE EMPLOYEES' RIGHT TO STRIKE FOR
ECONOMIC BENEFITS BUT ALSO THEIR RIGHT TO STRIKE SOLELY AGAINST UNFAIR
LABOR PRACTICES OF THEIR EMPLOYERS, AND (2) WHETHER SEC. 8(D) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED, (FN1) DEPRIVES INDIVIDUALS OF
THEIR STATUS AS EMPLOYEES IF, WITHIN THE WAITING PERIOD PRESCRIBED BY
SEC. 8(D)(4), THEY ENGAGE IN A STRIKE SOLELY AGAINST UNFAIR LABOR
PRACTICES OF THEIR EMPLOYERS.  FOR THE REASONS HEREAFTER STATED, WE
ANSWER EACH IN THE NEGATIVE. 

MASTRO PLASTICS CORP. AND FRENCH-AMERICAN REEDS MANUFACTURING CO.,
INC., PETITIONERS HEREIN, ARE NEW YORK CORPORATIONS WHICH, IN 1949 AND
1950, WERE ENGAGED IN INTERSTATE COMMERCE, MANUFACTURING, SELLING AND
DISTRIBUTING PLASTIC ARTICLES, INCLUDING REEDS AND OTHER ACCESSORIES
FOR MUSICAL INSTRUMENTS.  THEY OPERATED IN THE CITY OF NEW YORK WITHIN
THE SAME PLANT, UNDER THE SAME MANAGEMENT AND WITH THE SAME EMPLOYEES. 
FOR COLLECTIVE BARGAINING, THEIR EMPLOYEES WERE REPRESENTED BY LOCAL
22045, AMERICAN FEDERATION OF LABOR, OR BY LOCAL 3127, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL.  THESE LOCALS
OCCUPIED THE SAME OFFICE AND USED THE SERVICES OF THE SAME
REPRESENTATIVES.  DURING THE PERIOD IN QUESTION, THE RIGHT OF
REPRESENTATION OF PETITIONERS' EMPLOYEES WAS TRANSFERRED BACK AND FORTH
BETWEEN THEM FOR REASONS NOT MATERIAL HERE.  ACCORDINGLY, THEY ARE
REFERRED TO IN THIS OPINION AS THE "CARPENTERS." 

IN AUGUST 1950, LOCAL 65 OF THE WHOLESALE AND WAREHOUSE WORKERS UNION
BEGAN A CAMPAIGN AMONG PETITIONERS' EMPLOYEES IN AN EFFORT TO BECOME
THEIR COLLECTIVE-BARGAINING REPRESENTATIVE.  PETITIONERS BITTERLY
OPPOSED THE MOVEMENT, BELIEVING LOCAL 65 TO BE COMMUNIST-CONTROLLED. 
FEELING THAT THE CARPENTERS WERE TOO WEAK TO COPE SUCCESSFULLY WITH
LOCAL 65, PETITIONERS ASKED THE CARPENTERS TO TRANSFER THEIR BARGAINING
RIGHTS TO LOCAL 318, INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND
PAPER MILL WORKERS, AFL.  WHEN THE CARPENTERS DECLINED TO DO SO,
PETITIONERS SELECTED A COMMITTEE OF EMPLOYEES TO VISIT 318, OBTAIN
MEMBERSHIP CARDS AND SEEK MEMBERS FOR THAT UNION.  THE CARDS WERE
DISTRIBUTED DURING WORKING HOURS AND PETITIONERS PAID THEIR EMPLOYEES
FOR TIME SPENT IN THE CAMPAIGN, INCLUDING ATTENDANCE AT A MEETING OF
318.  PETITIONERS' OFFICERS AND SUPERVISORS INSTRUCTED EMPLOYEES TO
SIGN THESE CARDS AND INDICATED THAT THOSE REFUSING TO DO SO WOULD BE
"OUT." 

SEPTEMBER 28, LOCAL 65 FILED WITH THE NATIONAL LABOR RELATIONS BOARD
ITS PETITION FOR CERTIFICATION AS BARGAINING REPRESENTATIVE.  OCTOBER
24, LOCAL 318 INTERVENED IN THE REPRESENTATION PROCEEDINGS AND ASKED
THAT IT BE CERTIFIED.  HOWEVER, MANY EMPLOYEES REVOKED THEIR
APPLICATIONS FOR MEMBERSHIP IN 318 AND REAFFIRMED THEIR ADHERENCE TO
THE CARPENTERS.  THIS WAS FOLLOWED ON OCTOBER 31 BY THE CARPENTERS'
REFUSAL TO CONSENT TO AN ELECTION ON THE GROUND THAT PETITIONERS HAD
UNLAWFULLY ASSISTED 318 IN THE CAMPAIGN.  (FN2) 

NOVEMBER 10, 1950, A CRISIS DEVELOPED WHEN THE PRESIDENT OF
PETITIONERS SUMMARILY DISCHARGED FRANK CICCONE, AN EMPLOYEE OF OVER
FOUR YEARS' STANDING, BECAUSE OF THE LATTER'S ACTIVITY IN SUPPORT OF
THE CARPENTERS AND HIS OPPOSITION TO 318.  WE ACCEPT THE FINDING OF THE
NATIONAL LABOR RELATIONS BOARD THAT PETITIONERS "DISCRIMINATORILY
DISCHARGED, AND THEREAFTER REFUSED TO REINSTATE, FRANK CICCONE BECAUSE
OF HIS ORGANIZATIONAL ACTIVITIES IN SUPPORT OF THE  ...  CARPENTERS." 
(FN3)  THIS DISCHARGE AT ONCE PRECIPITATED THE STRIKE WHICH IS BEFORE
US AND WHICH THE BOARD FOUND "WAS CLEARLY CAUSED AND PROLONGED BY THE
CUMULATIVE EFFECTS OF THE PETITIONERS' UNFAIR LABOR PRACTICES
CULMINATING IN THE DISCRIMINATORY DISCHARGE OF CICCONE."  (FN4)  THERE
WAS NO DISORDER BUT THE PLANT WAS VIRTUALLY SHUT DOWN UNTIL DECEMBER 11
AND IT WAS MARCH 9, 1951, BEFORE THE CARPENTERS, ON BEHALF OF
PETITIONERS' EMPLOYEES, MADE AN UNCONDITIONAL REQUEST TO RETURN TO
WORK.  PETITIONERS IGNORED THAT REQUEST AND NEITHER CICCONE NOR ANY OF
THE OTHER 76 STRIKING EMPLOYEES HAS BEEN REINSTATED. 

WHILE THE STRIKE AGAINST PETITIONERS' UNFAIR LABOR PRACTICES
CONTINUED, THE COLLECTIVE-BARGAINING CONTRACT BETWEEN PETITIONERS AND
THE CARPENTERS APPROACHED ITS EXPIRATION DATE OF NOVEMBER 30, 1950,
AND, APART FROM THE ABOVE-DESCRIBED ORGANIZATIONAL CONTROVERSY, THE
CARPENTERS HAD TAKEN TIMELY STEPS TO SECURE MODIFICATION OF THEIR
AGREEMENT.  OCTOBER 10, THEY HAD DELIVERED TO PETITIONERS A NOTICE
(DATED SEPTEMBER 29, 1950) "REQUESTING MODIFICATION" OF THE CONTRACT. 
(FN5)  THEY THUS HAD STARTED THE STATUTORY NEGOTIATING PERIOD RUNNING
AS PRESCRIBED BY THE ABOVE-MENTIONED SEC. 8(D).  (FN6)  THE CARPENTERS
MET SEVERAL TIMES WITH PETITIONERS AND PRESSED THEIR DEMANDS FOR
CHANGES IN THE CONTRACT BUT THE EXPIRATION DATE PASSED WITHOUT ANY
AGREEMENT BEING REACHED. 

IN JANUARY 1951, THE CARPENTERS INITIATED THE PRESENT PROCEEDINGS
BEFORE THE NATIONAL LABOR RELATIONS BOARD BY CHARGING PETITIONERS WITH
UNFAIR LABOR PRACTICES.  ACTING ON THOSE CHARGES, THE BOARD'S GENERAL
COUNSEL FILED A COMPLAINT ALLEGING PETITIONERS' SUPPORT OF LOCAL 318
AND DISCHARGE OF NUMEROUS EMPLOYEES, INCLUDING CICCONE, AS VIOLATIONS
OF SEC. 8(A)(1), (2) AND (3) OF THE ACT.  (FN7) 

PETITIONERS ADMITTED THAT THEY HAD DISCHARGED THE EMPLOYEES IN
QUESTION AND HAD NOT REHIRED THEM.  THEY DENIED, HOWEVER, THAT IN SO
DOING THEY HAD COMMITTED ANY UNFAIR LABOR PRACTICES.  THEIR FIRST
AFFIRMATIVE DEFENSE WAS THAT THE WAIVER OF THE RIGHT TO STRIKE,
EXPRESSED BY THEIR EMPLOYEES IN THEIR COLLECTIVE-BARGAINING CONTRACT,
APPLIED TO STRIKES NOT ONLY FOR ECONOMIC BENEFITS BUT TO ANY AND ALL
STRIKES BY SUCH EMPLOYEES, INCLUDING STRIKES DIRECTED SOLELY AGAINST
UNFAIR LABOR PRACTICES OF THE EMPLOYER. 

PETITIONERS' OTHER PRINCIPAL DEFENSE WAS THAT THE EXISTING STRIKE
BEGAN DURING THE STATUTORY WAITING PERIOD INITIATED BY THE EMPLOYEES'
REQUEST FOR MODIFICATION OF THE CONTRACT AND THAT, BY VIRTUE OF SEC.
8(D) OF THE ACT, (FN8) THE STRIKERS HAD LOST THEIR STATUS AS
EMPLOYEES.  THAT DEFENSE TURNED UPON PETITIONERS' INTERPRETATION OF
SEC. 8(D), APPLYING IT NOT ONLY TO STRIKES FOR ECONOMIC BENEFITS BUT TO
ANY AND ALL STRIKES OCCURRING DURING THE WAITING PERIOD, INCLUDING
STRIKES SOLELY AGAINST UNFAIR LABOR PRACTICES OF THE EMPLOYER. 

THE TRIAL EXAMINER MADE FINDINGS OF FACT SUSTAINING THE COMPLAINT AND
RECOMMENDED THAT PETITIONERS BE ORDERED TO CEASE AND DESIST FROM THE
INTERFERENCE COMPLAINED OF AND BE REQUIRED TO OFFER TO CICCONE AND THE
76 OTHER DISCHARGED EMPLOYEES FULL REINSTATEMENT, TOGETHER WITH BACK
PAY FOR CICCONE FROM NOVEMBER 10, 1950, AND FOR THE OTHER EMPLOYEES
FROM MARCH 9, 1951.  SEE 103 N.L.R.B. 511, 526-563.  WITH MINOR
MODIFICATIONS, THE BOARD ADOPTED THE EXAMINER'S FINDINGS AND
CONCLUSIONS AND ISSUED THE RECOMMENDED ORDER.  103 N.L.R.B. 511.  THE
CHAIRMAN AND ONE MEMBER DISSENTED IN PART. 

THE COURT OF APPEALS, WITH ONE JUDGE DISSENTING IN PART, ACCEPTED THE
BOARD'S FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ENFORCED THE
BOARD'S ORDER.  214 F.2D 462.  SINCE THEN, THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT HAS REACHED A SIMILAR CONCLUSION.  LABOR BOARD V.
WAGNER IRON WORKS, 220 F.2D 126.  BECAUSE OF THE IMPORTANCE OF THE
ISSUES IN INDUSTRIAL RELATIONS AND IN THE INTERPRETATION OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED, WE GRANTED CERTIORARI.  348
U.S. 910. 

APART FROM THE ISSUES RAISED BY PETITIONERS' AFFIRMATIVE DEFENSES,
THE PROCEEDINGS REFLECT A FLAGRANT EXAMPLE OF INTERFERENCE BY THE
EMPLOYERS WITH THE EXPRESSLY PROTECTED RIGHT OF THEIR EMPLOYEES TO
SELECT THEIR OWN BARGAINING REPRESENTATIVE.  THE FINDINGS DISCLOSE
VIGOROUS EFFORTS BY THE EMPLOYERS TO INFLUENCE AND EVEN TO COERCE THEIR
EMPLOYEES TO ABANDON THE CARPENTERS AS THEIR BARGAINING REPRESENTATIVES
AND TO SUBSTITUTE LOCAL 318.  ACCORDINGLY, UNLESS PETITIONERS SUSTAIN
AT LEAST ONE OF THEIR AFFIRMATIVE DEFENSES, THEY MUST SUFFER THE
CONSEQUENCES OF THEIR UNFAIR LABOR PRACTICES VIOLATING SEC. 8(A)(1),
(2) OR (3) OF THE ACT, AS AMENDED. 

IN THE ABSENCE OF SOME CONTRACTUAL OR STATUTORY PROVISION TO THE
CONTRARY, PETITIONERS' UNFAIR LABOR PRACTICES PROVIDE ADEQUATE GROUND
FOR THE ORDERLY STRIKE THAT OCCURRED HERE.  UNDER THOSE CIRCUMSTANCES,
THE STRIKING EMPLOYEES DO NOT LOSE THEIR STATUS AND ARE ENTITLED TO
REINSTATEMENT WITH BACK PAY, EVEN IF REPLACEMENTS FOR THEM HAVE BEEN
MADE.  (FN9)  FAILURE OF THE BOARD TO ENJOIN PETITIONERS' ILLEGAL
CONDUCT OR FAILURE OF THE BOARD TO SUSTAIN THE RIGHT TO STRIKE AGAINST
THAT CONDUCT WOULD SERIOUSLY UNDERMINE THE PRIMARY OBJECTIVES OF THE
LABOR ACT.  SEE LABOR BOARD V. RICE MILLING CO., 341 U.S. 665, 673. 
WHILE WE ASSUME THAT THE EMPLOYEES, BY EXPLICIT CONTRACTUAL PROVISION,
COULD HAVE WAIVED THEIR RIGHT TO STRIKE AGAINST SUCH UNFAIR LABOR
PRACTICES AND THAT CONGRESS, BY EXPLICIT STATUTORY PROVISION, COULD
HAVE DEPRIVED STRIKERS, UNDER THE CIRCUMSTANCES OF THIS CASE, OF THEIR
STATUS AS EMPLOYEES, THE QUESTIONS BEFORE US ARE WHETHER OR NOT SUCH A
WAIVER WAS MADE BY THE CARPENTERS IN THEIR 1949-1950 CONTRACT AND
WHETHER OR NOT SUCH A DEPRIVATION OF STATUS WAS ENACTED BY CONGRESS IN
SEC. 8(D) OF THE ACT, AS AMENDED IN 1947. 

I. DOES THE COLLECTIVE-BARGAINING CONTRACT WAIVE THE EMPLOYEES' RIGHT
TO STRIKE AGAINST THE UNFAIR LABOR PRACTICES COMMITTED BY THEIR
EMPLOYERS?  THE ANSWER TURNS UPON THE PROPER INTERPRETATION OF THE
PARTICULAR CONTRACT BEFORE US.  LIKE OTHER CONTRACTS, IT MUST BE READ
AS A WHOLE AND IN THE LIGHT OF THE LAW RELATING TO IT WHEN MADE. 

"  ...  WE HAVE TWO DECLARED CONGRESSIONAL POLICIES WHICH IT IS OUR
RESPONSIBILITY TO TRY TO RECONCILE.  THE ONE SEEKS TO PRESERVE A
COMPETITIVE BUSINESS ECONOMY; THE OTHER TO PRESERVE THE RIGHTS OF LABOR
TO ORGANIZE TO BETTER ITS CONDITIONS THROUGH THE AGENCY OF COLLECTIVE
BARGAINING.  WE MUST DETERMINE HERE HOW FAR CONGRESS INTENDED
ACTIVITIES UNDER ONE OF THESE POLICIES TO NEUTRALIZE THE RESULTS
ENVISIONED BY THE OTHER."  ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, 325
U.S. 797, 806. 

THIS CONTRACT WAS MADE IN THE LIGHT OF THAT DECLARED POLICY.  A
SIMILAR DUAL PURPOSE IS EMPHASIZED AS FOLLOWS IN SEC. 1 OF THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED: 

"IT IS HEREBY DECLARED TO BE THE POLICY OF THE UNITED STATES TO
ELIMINATE THE CAUSES OF CERTAIN SUBSTANTIAL OBSTRUCTIONS TO THE FREE
FLOW OF COMMERCE AND TO MITIGATE AND ELIMINATE THESE OBSTRUCTIONS WHEN
THEY HAVE OCCURRED BY ENCOURAGING THE PRACTICE AND PROCEDURE OF
COLLECTIVE BARGAINING AND BY PROTECTING THE EXERCISE BY WORKERS OF FULL
FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND DESIGANTION OF
REPRESENTATIVES OF THEIR OWN CHOOSING, FOR THE PURPOSE OF NEGOTIATING
THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT OR OTHER MUTUAL AID OR
PROTECTION."  61 STAT. 137, 29 U.S.C. SEC. 151.  SEE ALSO, THE
DECLARATION OF POLICY IN SEC. 1(B) OF THE LABOR MANAGEMENT RELATIONS
ACT, 1947, 61 STAT. 136, 29 U.S.C. SEC. 141(B). 

THE TWO POLICIES ARE COMPLEMENTARY.  THEY DEPEND FOR THEIR FOUNDATION
UPON ASSURANCE OF "FULL FREEDOM OF ASSOCIATION."  ONLY AFTER THAT IS
ASSURED CAN THE PARTIES TURN TO EFFECTIVE NEGOTIATION AS A MEANS OF
MAINTAINING "THE NORMAL FLOW OF COMMERCE AND  ...  THE FULL PRODUCTION
OF ARTICLES AND COMMODITIES  ...  ."  61 STAT. 136, 29 U.S.C. SEC.
141(B). 

ON THE PREMISE OF FAIR REPRESENTATION, COLLECTIVE-BARGAINING
CONTRACTS FREQUENTLY HAVE INCLUDED CERTAIN WAIVERS OF THE EMPLOYEES'
RIGHT TO STRIKE AND OF THE EMPLOYERS' RIGHT TO LOCKOUT TO ENFORCE THEIR
RESPECTIVE ECONOMIC DEMANDS DURING THE TERM OF THOSE CONTRACTS. 
PROVIDED THE SELECTION OF THE BARGAINING REPRESENTATIVE REMAINS FREE,
SUCH WAIVERS CONTRIBUTE TO THE NORMAL FLOW OF COMMERCE AND TO THE
MAINTENANCE OF REGULAR PRODUCTION SCHEDULES.  INDIVIDUALS VIOLATING
SUCH CLAUSES APPROPRIATELY LOSE THEIR STATUS AS EMPLOYEES.  (FN10) 

THE WAIVER IN THE CONTRACT BEFORE US, UPON WHICH PETITIONERS RELY, IS
AS FOLLOWS: 

"5.  THE UNION AGREES THAT DURING THE TERM OF THIS AGREEMENT, THERE
SHALL BE NO INTERFERENCE OF ANY KIND WITH THE OPERATIONS OF THE
EMPLOYERS, OR ANY INTERRUPTIONS OR SLACKENING OF PRODUCTION OF WORK BY
ANY OF ITS MEMBERS.  THE UNION FURTHER AGREES TO REFRAIN FROM ENGAGING
IN ANY STRIKE OR WORK STOPPAGE DURING THE TERM OF THIS AGREEMENT." 

THAT CLAUSE EXPRESSES CONCERN FOR THE CONTINUED OPERATION OF THE
PLANT AND HAS A NATURAL APPLICATION TO STRIKES AND WORK STOPPAGES
INVOLVING THE SUBJECT MATTER OF THE CONTRACT. 

CONCEDING THAT THE WORDS "IN ANY STRIKE OR WORK STOPPAGE DURING THE
ONE-YEAR TERM OF THIS AGREEMENT," IF READ IN COMPLETE ISOLATION, MAY
INCLUDE ALL STRIKES AND WORK STOPPAGES OF EVERY NATURE, YET THE TRIAL
EXAMINER, THE BOARD AND THE COURT OF APPEALS AGREE THAT THOSE WORDS DO
NOT HAVE THAT SCOPE WHEN READ IN THEIR CONTEXT AND IN THE LIGHT OF THE
LAW UNDER WHICH THE CONTRACT WAS MADE.  THIS UNANIMITY OF
INTERPRETATION IS ENTITLED TO MUCH WEIGHT.  (FN11)    PETITIONERS ARGUE
THAT THE WORDS "ANY STRIKE" LEAVE NO ROOM FOR INTERPRETATION AND
NECESSARILY INCLUDE ALL STRIKES, EVEN THOSE AGAINST UNLAWFUL PRACTICES
DESTRUCTIVE OF THE FOUNDATION ON WHICH COLLECTIVE BARGAINING MUST
REST.  WE DISAGREE.  WE BELIEVE THAT THE CONTRACT, TAKEN AS A WHOLE,
DEALS SOLELY WITH THE ECONOMIC RELATIONSHIP BETWEEN THE EMPLOYERS AND
THEIR EMPLOYEES.  (FN12)  IT IS A TYPICAL COLLECTIVE-BARGAINING
CONTRACT DEALING WITH TERMS OF EMPLOYMENT AND THE NORMAL OPERATIONS OF
THE PLANT.  IT IS FOR ONE YEAR AND ASSUMES THE EXISTENCE OF A LAWFULLY
DESIGNATED BARGAINING REPRESENTATIVE.  ITS STRIKE AND LOCKOUT CLAUSES
ARE NATURAL ADJUNCTS OF AN OPERATING POLICY AIMED AT AVOIDING
INTERRUPTIONS OF PRODUCTION PROMPTED BY EFFORTS TO CHANGE EXISTING
ECONOMIC RELATIONSHIPS.  THE MAIN FUNCTION OF ARBITRATION UNDER THE
CONTRACT IS TO PROVIDE A MECHANISM FOR AVOIDING SIMILAR STOPPAGES DUE
TO DISPUTES OVER THE MEANING AND APPLICATION OF THE VARIOUS CONTRACTUAL
PROVISIONS. 

TO ADOPT PETITIONERS' ALL-INCLUSIVE INTERPRETATION OF THE CLAUSE IS
QUITE A DIFFERENT MATTER.  THAT INTERPRETATION WOULD ELIMINATE, FOR THE
WHOLE YEAR, THE EMPLOYEES' RIGHT TO STRIKE, EVEN IF PETITIONERS, BY
COERCION, OUSTED THE EMPLOYEES' LAWFUL BARGAINING REPRESENTATIVE AND,
BY THREATS OF DISCHARGE, CAUSED THE EMPLOYEES TO SIGN MEMBERSHIP CARDS
IN A NEW UNION.  WHATEVER MAY BE SAID OF THE LEGALITY OF SUCH A WAIVER
WHEN EXPLICITLY STATED, THERE IS NO ADEQUATE BASIS FOR IMPLYING ITS
EXISTENCE WITHOUT A MORE COMPELLING EXPRESSION OF IT THAN APPEARS IN
SEC. 5 OF THIS CONTRACT. 

THERE HAS BEEN NO COURT DECISION CALLED TO OUR ATTENTION WHICH HAS
HELD THAT THE EMPLOYEES' RIGHT TO STRIKE AGAINST UNFAIR LABOR PRACTICES
HAS BEEN WAIVED BY LANGUAGE SUCH AS THAT WHICH IS BEFORE US.  ON THE
OTHER HAND, PRIOR TO SUCH CONTRACT, SUCH LANGUAGE HAD BEEN HELD BY THE
BOARD TO APPLY APPROPRIATELY TO ECONOMIC STRIKES WITH CONSEQUENT LOSS
OF EMPLOYEE STATUS.  (FN13) 

IT IS SUGGESTED THAT SEC. 13 OF THE ACT, AS AMENDED, PRECLUDES
RELIANCE BY THE BOARD UPON THE ACT FOR SUPPORT OF ITS INTERPRETATION OF
THE STRIKE-WAIVER CLAUSE.  THAT SECTION PROVIDES THAT "NOTHING IN THIS
ACT, EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, SHALL BE CONSTRUED SO
AS EITHER TO INTERFERE WITH OR IMPEDE OR DIMINISH IN ANY WAY THE RIGHT
TO STRIKE, OR TO AFFECT THE LIMITATIONS OR QUALIFICATIONS ON THAT
RIGHT."  61 STAT. 151, 29 U.S.C. SEC.  163.  ON THE BASIS OF THE ABOVE
LANGUAGE, PETITIONERS CLAIM THAT BECAUSE THE CONTRACT-WAIVER CLAUSE
PROHIBITS ALL STRIKES OF EVERY NATURE, NOTHING IN THE ACT MAY BE
CONSTRUED TO AFFECT THE "LIMITATIONS OR QUALIFICATIONS" WHICH THE
CONTRACT THUS PLACES ON THAT RIGHT.  SUCH A CLAIM ASSUMES THE POINT AT
ISSUE.  THE BOARD RELIES UPON THE CONTEXT OF THE CONTRACT AND UPON THE
LANGUAGE OF THE CLAUSE ITSELF, RATHER THAN UPON THE STATUTE, TO DEFINE
THE KIND OF STRIKE THAT IS WAIVED. 

AS A MATTER OF FACT, THE INITIAL PROVISION IN SEC. 13 THAT NOTHING IN
THE ACT "SHALL BE CONSTRUED SO AS EITHER TO INTERFERE WITH OR IMPEDE OR
DIMINISH IN ANY WAY THE RIGHT TO STRIKE" ADDS EMPHASIS TO THE BOARD'S
INSISTENCE UPON PRESERVING THE EMPLOYEES' RIGHT TO STRIKE TO PROTECT
THEIR FREEDOM OF CONCERTED ACTION.  INASMUCH AS STRIKES AGAINST UNFAIR
LABOR PRACTICES ARE NOT ANYWHERE SPECIFICALLY EXCEPTED FROM LAWFUL
STRIKES, SEC. 13 ADDS EMPHASIS TO THE CONGRESSIONAL RECOGNITION OF
THEIR PROPRIETY.  (FN14) 

FOR THE REASONS STATED ABOVE AND THOSE GIVEN BY THE BOARD AND THE
COURT BELOW, WE CONCLUDE THAT THE CONTRACT DID NOT WAIVE THE EMPLOYEES'
RIGHT TO STRIKE SOLELY AGAINST THE UNFAIR LABOR PRACTICES OF THEIR
EMPLOYERS. 

II.  DOES SEC. 8(D) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
DEPRIVE INDIVIDUALS OF THEIR STATUS AS EMPLOYEES IF, WITHIN THE WAITING
PERIOD PRESCRIBED BY SEC. 8(D)(4), THEY ENGAGE IN A STRIKE SOLELY
AGAINST UNFAIR LABOR PRACTICES OF THEIR EMPLOYERS?  HERE AGAIN THE
BACKGROUND IS THE DUAL PURPOSE OF THE ACT (1) TO PROTECT THE RIGHT OF
EMPLOYEES TO BE FREE TO TAKE CONCERTED ACTION AS PROVIDED IN SECS. 7
AND 8(A), (FN15) AND (2) TO SUBSTITUTE COLLECTIVE BARGAINING FOR
ECONOMIC WARFARE IN SECURING SATISFACTORY WAGES, HOURS OF WORK AND
EMPLOYMENT CONDITIONS.  SECTION 8(D) (FN16) SEEKS TO BRING ABOUT THE
TERMINATION AND MODIFICATION OF COLLECTIVE-BARGAINING AGREEMENTS
WITHOUT INTERRUPTING THE FLOW OF COMMERCE OR THE PRODUCTION OF GOODS,
WHILE SECS. 7 AND 8(A) SEEK TO INSURE FREEDOM OF CONCERTED ACTION BY
EMPLOYEES AT ALL TIMES. 

THE LANGUAGE IN SEC. 8(D) ESPECIALLY RELIED UPON BY PETITIONERS IS AS
FOLLOWS:  "ANY EMPLOYEE WHO ENGAGES IN A STRIKE WITHIN THE SIXTY-DAY
PERIOD SPECIFIED IN THIS SUBSECTION SHALL LOSE HIS STATUS AS AN
EMPLOYEE OF THE EMPLOYER ENGAGED IN THE PARTICULAR LABOR DISPUTE, FOR
THE PURPOSES OF SECTIONS 8, 9, AND 10 OF THIS ACT, AS AMENDED  ...  ." 
61 STAT. 143, 29 U.S.C. SEC. 158(D). 

PETITIONERS CONTEND THAT THE ABOVE WORDS MUST BE SO READ THAT
EMPLOYEES WHO ENGAGE IN ANY STRIKE, REGARDLESS OF ITS PURPOSE, WITHIN
THE 60-DAY WAITING PERIOD, THEREBY LOSE THEIR STATUS AS EMPLOYEES. 
THAT INTERPRETATION WOULD DEPRIVE CICCONE AND HIS FELLOW STRIKERS OF
THEIR RIGHTS TO REINSTATEMENT AND WOULD REQUIRE THE REVERSAL OF THE
JUDGMENT OF THE COURT OF APPEALS.  (FN17)  IF THE ABOVE WORDS ARE READ
IN COMPLETE ISOLATION FROM THEIR CONTEXT IN THE ACT, SUCH AN
INTERPRETATION IS POSSIBLE.  HOWEVER, "IN EXPOUNDING A STATUTE, WE MUST
NOT BE GUIDED BY A SINGLE SENTENCE OR MEMBER OF A SENTENCE, BUT LOOK TO
THE PROVISIONS OF THE WHOLE LAW, AND TO ITS OBJECT AND POLICY."  UNITED
STATES V. BOISDORE'S HEIRS, 8 HOW.  113, 122.  SEE ALSO, PECK V.
JENNESS, 7 HOW.  612, 622-623; DUPARQUET CO. V. EVANS, 297 U.S. 216,
AND UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 542-543. 

READING THE CLAUSE IN CONJUNCTION WITH THE REST OF SEC. 8, THE BOAD
POINTS OUT THAT "THE SIXTY-DAY PERIOD" REFERRED TO IS THE PERIOD
MENTIONED IN PARAGRAPH (4) OF SEC.  8(D).  THAT PARAGRAPH REQUIRES THE
PARTY GIVING NOTICE OF A DESIRE TO "TERMINATE OR MODIFY" SUCH A
CONTRACT, AS PART OF ITS OBLIGATION TO BARGAIN UNDER SEC. 8(A)(5) OR
SEC. 8(B)(3), TO CONTINUE "IN FULL FORCE AND EFFECT, WITHOUT RESORTING
TO STRIKE OR LOCK-OUT, ALL THE TERMS AND CONDITIONS OF THE EXISTING
CONTRACT FOR A PERIOD OF SIXTY DAYS AFTER SUCH NOTICE IS GIVEN OR UNTIL
THE EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS LATER."  SECTION
8(D) THUS SEEKS, DURING THIS NATURAL RENEGOTIATION PERIOD, TO RELIEVE
THE PARTIES FROM THE ECONOMIC PRESSURE OF A STRIKE OR LOCKOUT IN
RELATION TO THE SUBJECTS OF NEGOTIATION.  THE FINAL CLAUSE OF SEC. 8(D)
ALSO WARNS EMPLOYEES THAT, IF THEY JOIN A PROSCRIBED STRIKE, THEY SHALL
THEREBY LOSE THEIR STATUS AS EMPLOYEES AND, CONSEQUENTLY, THEIR RIGHT
TO REINSTATEMENT. 

THE BOARD REASONS THAT THE WORDS WHICH PROVIDE THE KEY TO A PROPER
INTERPRETATION OF SEC. 8(D) WITH RESPECT TO THIS PROBLEM ARE
"TERMINATION OR MODIFICATION."  SINCE THE BOARD EXPRESSLY FOUND THAT
THE INSTANT STRIKE WAS NOT TO TERMINATE OR MODIFY THE CONTRACT, (FN18)
BUT WAS DESIGNED INSTEAD TO PROTEST THE UNFAIR LABOR PRACTICES OF
PETITIONERS, THE LOSS-OF-STATUS PROVISION OF SEC. 8(D) IS NOT
APPLICABLE.  WE SUSTAIN THAT INTERPRETATION.  PETITIONERS' CONSTRUCTION
WOULD PRODUCE INCONGRUOUS RESULTS.  IT CONCEDES THAT PRIOR TO THE 60
DAY NEGOTIATING PERIOD, EMPLOYEES HAVE A RIGHT TO STRIKE AGAINST UNFAIR
LABOR PRACTICES DESIGNED TO OUST THE EMPLOYEES' BARGAINING
REPRESENTATIVE, YET PETITIONERS' INTERPRETATION OF SEC. 8(D) MEANS THAT
IF THE EMPLOYEES GIVE THE 60-DAY NOTICE OF THEIR DESIRE TO MODIFY THE
CONTRACT, THEY ARE PENALIZED FOR EXERCISING THAT RIGHT TO STRIKE.  THIS
WOULD DEPRIVE THEM OF THEIR MOST EFFECTIVE WEAPON AT A TIME WHEN THEIR
NEED FOR IT IS OBVIOUS.  ALTHOUGH THE EMPLOYEES' REQUEST TO MODIFY THE
CONTRACT WOULD DEMONSTRATE THEIR NEED FOR THE SERVICES OF THEIR FREELY
CHOSEN REPRESENTATIVE, PETITIONERS' INTERPRETATION WOULD HAVE THE
INCONGRUOUS EFFECT OF CUTTING OFF THE EMPLOYEES' FREEDOM TO STRIKE
AGAINST UNFAIR LABOR PRACTICES AIMED AT THAT REPRESENTATIVE.  THIS
WOULD RELEGATE THE EMPLOYEES TO FILING CHARGES UNDER A PROCEDURE TOO
SLOW TO BE EFFECTIVE.  THE RESULT WOULD UNDULY FAVOR THE EMPLOYERS AND
HANDICAP THE EMPLOYEES DURING NEGOTIATION PERIODS CONTRARY TO THE
PURPOSE OF THE ACT.  THERE ALSO IS INHERENT INEQUITY IN ANY
INTERPRETATION THAT PENALIZES ONE PARTY TO A CONTRACT FOR CONDUCT
INDUCED SOLELY BY THE UNLAWFUL CONDUCT OF THE OTHER, THUS GIVING
ADVANTAGE TO THE WRONGDOER.  (FN19) 

PETITIONERS CONTEND THAT, UNELSS THE LOSS-OF-STATUS CLAUSE IS
APPLICABLE TO UNFAIR LABOR PRACTICE STRIKES, AS WELL AS TO ECONOMIC
STRIKES, IT ADDS NOTHING TO THE EXISTING LAW RELATING TO LOSS OF
STATUS.  ASSUMING THAT TO BE SO, THE CLAUSE IS JUSTIFIABLE AS A
CLARIFICATION OF THE LAW AND AS A WARNING TO EMPLOYEES AGAINST ENGAGING
IN ECONOMIC STRIKES DURING THE STATUTORY WAITING PERIOD.  MOREOVER, IN
THE FACE OF THE AFFIRMATIVE EMPHASIS THAT IS PLACED BY THE ACT UPON
FREEDOM OF CONCERTED ACTION AND FREEDOM OF CHOICE OF REPRESENTATIVES,
ANY LIMITATION ON THE EMPLOYEES' RIGHT TO STRIKE AGAINST VIOLATIONS OF
SECS. 7 AND 8(A), PROTECTING THOSE FREEDOMS, MUST BE MORE EXPLICIT AND
CLEAR THAN IT IS HERE IN ORDER TO RESTRICT THEM AT THE VERY TIME THEY
MAY BE MOST NEEDED. 

THERE IS SUFFICIENT AMBIGUITY HERE TO PERMIT CONSIDERATION OF
RELEVANT LEGISLATIVE HISTORY.  WHILE SUCH HISTORY PROVIDES NO
CONCLUSIVE ANSWER, IT IS CONSISTENT WITH THE VIEW TAKEN BY THE BOARD
AND BY THE COURTS OF APPEALS FOR THE SECOND AND SEVENTH CIRCUITS. 
(FN20) 

SENATOR BALL, WHO WAS A MANAGER FOR THE 1947 AMENDMENTS IN THE SENATE
AND ONE OF THE CONFEREES ON THE BILL, STATED THAT SEC. 8(D) MADE
MANDATORY WHAT WAS ALREADY GOOD PRACTICE AND WAS AIMED AT PREVENTING
SUCH INTERRUPTIONS OF PRODUCTION AS THE "QUICKIE STRIKES" OCCASIONALLY
USED TO GAIN ECONOMIC ADVANTAGES. 

"THE PROVISION IN THE NATIONAL LABOR RELATIONS ACT DEFINING
COLLECTIVE BARGAINING, AND PROVIDING THAT WHERE A CONTRACT BETWEEN A
UNION AND AN EMPLOYER IS IN EXISTENCE, FULFILLING THE OBLIGATION ON
BOTH SIDES TO PROTECT (BARGAIN) COLLECTIVELY MEANS GIVING AT LEAST 60
DAYS' NOTICE OF THE TERMINATION OF THE CONTRACT, OR OF THE DESIRE FOR
ANY CHANGE IN IT, IS ANOTHER PROVISION AIMED PRIMARILY AT PROTECTING
THE PUBLIC, AS WELL AS THE EMPLOYEE, WHO HAVE BEEN THE VICTIMS OF
'QUICKIE' STRIKES.  I DO NOT THINK THAT IS TAKING AWAY ANY RIGHTS OF
LABOR  ...  IT IS SIMPLY SAYING THAT THEY SHOULD ALL FOLLOW THE SOUND,
FAIR, AND SANE PROCEDURE WHICH A MAJORITY OF THE GOOD ONES NOW
FOLLOW."   93 CONG. REC. 5014. 

ONE MINORITY REPORT SUGGESTED A FEAR THAT SEC. 8(D) WOULD BE
APPLICABLE TO UNFAIR PRACTICE STRIKES.  THE SUGGESTION, HOWEVER, WAS
NOT EVEN MADE THE SUBJECT OF COMMENT BY THE MAJORITY REPORTS OR IN THE
DEBATES.  (FN21)  AN UNSUCCESSFUL MINORITY CANNOT PUT WORDS INTO THE
MOUTHS OF THE MAJORITY AND THUS, INDIRECTLY, AMEND A BILL.  (FN22) 

THE RECORD SHOWS THAT THE SUPPORTERS OF THE BILL WERE AWARE OF THE
ESTABLISHED PRACTICE WHICH DISTINGUISHED BETWEEN THE EFFECT ON
EMPLOYEES OF ENGAGING IN ECONOMIC STRIKES AND THAT OF ENGAGING IN
UNFAIR PRACTICE STRIKES.  (FN23)  IF CONGRESS HAD WANTED TO MODIFY THAT
PRACTICE, IT COULD READILY HAVE DONE SO BY SPECIFIC PROVISION. 
CONGRESS CANNOT FAIRLY BE HELD TO HAVE MADE SUCH AN INTRUSION ON
EMPLOYEES' RIGHTS, AS PETITIONERS CLAIM, WITHOUT SOME MORE EXPLICIT
EXPRESSION OF ITS PURPOSE TO DO SO THAN APPEARS HERE.  (FN24) 

FINALLY, PETITIONERS SEEK SUPPORT FOR THEIR INTERPRETATION OF SEC.
8(D) FROM THE FACT THAT ITS LAST CLAUSE MAKES A CROSS-REFERENCE TO
SECS. 8, 9 AND 10 OF THE ACT.  SUCH REFERENCE DOES NOT EXPAND THE SCOPE
OF SEC. 8(D).  IT MERELY MAKES IT CLEAR THAT IF SEC. 8(D) IS VIOLATED
BY THE EMPLOYEES TO WHOM IT APPLIES, THEN THEY LOSE THEIR STATUS AS
EMPLOYEES FOR THE PURPOSES OF SECS. 8, 9 AND 10.  (FN25) 

AS NEITHER THE COLLECTIVE-BARGAINING CONTRACT NOR SEC. 8(D) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED, STANDS IN THE WAY, THE
JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  61 STAT. 140, 142-143, 29 U.S.C. SEC. 158(D). 

FN2  IN DECEMBER, LOCALS 318 AND 65 WITHDREW THEIR REPRESENTATION
PROCEEDINGS FROM BEFORE THE BOARD AND THE CARPENTERS (THROUGH LOCAL
3127) FILED ITS OWN REPRESENTATION PROCEEDING.  JANUARY 29, 1951, THE
BOARD ISSUED A DIRECTION OF ELECTION IN THE LATTER PROCEEDING BUT,
AFTER THE CARPENTERS FILED CHARGES OF UNFAIR PRACTICES, THE BOARD
POSTPONED THE HOLDING OF ANY ELECTION UNTIL THE REGIONAL DIRECTOR MIGHT
DEEM IT PROPER. 

FN3  103 N.L.R.B. 511, 512, AND SEE 214 F.2D 462, 464. 

FN4  103 N.L.R.B., AT 513.  SEE ALSO, THE FOLLOWING FINDINGS OF THE
TRIAL EXAMINER: 

"  ...  THE PURPOSE OF THE STRIKE WAS TO PROTEST AND SEEK TO REMEDY
THE PETITIONERS' UNFAIR LABOR PRACTICES.  THE RECORD DOES NOT SUPPORT A
FINDING THAT THE STRIKE ALSO HAD AS AN ADDITIONAL OBJECTIVE THE
TERMINATION OR MODIFICATION OF THE EXISTING CONTRACT.  IT IS TRUE THAT
DEMANDS FOR CONTRACT CHANGES HAD PREVIOUSLY BEEN PRESENTED TO THE
PETITIONERS, AND THERE HAD BEEN SOME DISCUSSION AT MEETINGS OF LOCAL
22045 OR LOCAL 3127 OF A POSSIBLE STRIKE IF SUCH DEMANDS WERE NOT MET. 
BUT NO STRIKE VOTE ON THAT ISSUE HAD EVER BEEN TAKEN, NOR WAS ANY
STRIKE ACTION OTHERWISE DETERMINED UPON.  ON THE RECORD AS A WHOLE, I
AM FULLY SATISFIED, AND I FIND, THAT THE STRIKE WHICH IMMEDIATELY
FOLLOWED CICCONE'S DISCHARGE WAS UNPLANNED AND BEGAN AS A SPONTANEOUS
DEMONSTRATION BY EMPLOYEES OF THEIR PROTEST OF THE PETITIONERS' UNFAIR
LABOR PRACTICES.  NOR DOES THE RECORD REFLECT THAT ITS CHARACTER
CHANGED AFTER IT BEGAN TO ONE WHERE THE STRIKERS WERE SEEKING TO COMPEL
CHANGES OR MODIFICATIONS IN ECONOMIC TERMS OR CONDITIONS OF
EMPLOYMENT.  THERE IS NO EVIDENCE THAT ANY NEGOTIATIONS WERE CONDUCTED
OR OVERTURES MADE ALONG SUCH LINES AT ANY TIME AFTER THE COMMENCEMENT
OF THE STRIKE.  THE PETITIONERS AT THE HEARING MADE NO SUCH CLAIM, AND
OFFERED NO EVIDENCE TO ESTABLISH THAT THE STRIKE HAD ANY PURPOSE OTHER
THAN, OR IN ADDITION TO, THAT CLAIMED BY THE GENERAL COUNSEL."   103
N.L.R.B., AT 560.  THESE WERE ADOPTED BY THE BOARD, ID., AT 511-512,
AND CONFIRMED BY THE COURT OF APPEALS, 214 F.2D, AT 465.    FN5  103
N.L.R.B., AT 560 AND 512, N. 2. 

FN6  "SEC.  8  ...  . 

     *         *         *         *         * 

"(D)  FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS THE
PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT, OR ANY
QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN CONTRACT
INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY EITHER PARTY, BUT
SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR
REQUIRE THE MAKING OF A CONCESSION:  PROVIDED, THAT WHERE THERE IS IN
EFFECT A COLLECTIVE-BARGAINING CONTRACT COVERING EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE, THE DUTY TO BARGAIN COLLECTIVELY SHALL
ALSO MEAN THAT NO PARTY TO SUCH CONTRACT SHALL TERMINATE OR MODIFY SUCH
CONTRACT, UNLESS THE PARTY DESIRING SUCH TERMINATION OR MODIFICATION:

"(1)  SERVES A WRITTEN NOTICE UPON THE OTHER PARTY TO THE CONTRACT OF
THE PROPSOED TERMINATION OR MODIFICATION SIXTY DAYS PRIOR TO THE
EXPIRATION DATE THEREOF, OR IN THE EVENT SUCH CONTRACT CONTAINS NO
EXPIRATION DATE, SIXTY DAYS PRIOR TO THE TIME IT IS PROPOSED TO MAKE
SUCH TERMINATION OR MODIFICATION: 

"(2)  OFFERS TO MEET AND CONFER WITH THE OTHER PARTY FOR THE PURPOSE
OF NEGOTIATING A NEW CONTRACT OR A CONTRACT CONTAINING THE PROPOSED
MODIFICATIONS: 

"(3)  NOTIFIES THE FEDERAL MEDIATION AND CONCILIATION SERVICE WITHIN
THIRTY DAYS AFTER SUCH NOTICE OF THE EXISTENCE OF A DISPUTE, AND
SIMULTANEOUSLY THEREWITH NOTIFIES ANY STATE OR TERRITORIAL AGENCY
ESTABLISHED TO MEDIATE AND CONCILIATE DISPUTES WITHIN THE STATE OR
TERRITORY WHERE THE DISPUTE OCCURRED, PROVIDED NO AGREEMENT HAS BEEN
REACHED BY THAT TIME; AND: 

"(4)  CONTINUES IN FULL FORCE AND EFFECT, WITHOUT RESORTING TO STRIKE
OR LOCK-OUT, ALL THE TERMS AND CONDITIONS OF THE EXISTING CONTRACT FOR
A PERIOD OF SIXTY DAYS AFTER SUCH NOTICE IS GIVEN OR UNTIL THE
EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS LATER: 

"THE DUTIES IMPOSED UPON EMPLOYERS, EMPLOYEES, AND LABOR
ORGANIZATIONS BY PARAGRAPHS (2), (3), AND (4) SHALL BECOME INAPPLICABLE
UPON AN INTERVENING CERTIFICATION OF THE BOARD, UNDER WHICH THE LABOR
ORGANIZATION OR INDIVIDUAL, WHICH IS A PARTY TO THE CONTRACT, HAS BEEN
SUPERSEDED AS OR CEASED TO BE THE REPRESENTATIVE OF THE EMPLOYEES
SUBJECT TO THE PROVISIONS OF SECTION 9(A), AND THE DUTIES SO IMPOSED
SHALL NOT BE CONSTRUED AS REQUIRING EITHER PARTY TO DISCUSS OR AGREE TO
ANY MODIFICATION OF THE TERMS AND CONDITIONS CONTAINED IN A CONTRACT
FOR A FIXED PERIOD, IF SUCH MODIFICATION IS TO BECOME EFFECTIVE BEFORE
SUCH TERMS AND CONDITIONS CAN BE REOPENED UNDER THE PROVSIONS OF THE
CONTRACT.  ANY EMPLOYEE WHO ENGAGES IN A STRIKE WITHIN THE SIXTY-DAY
PERIOD SPECIFIED IN THIS SUBSECTION SHALL LOSE HIS STATUS AS AN
EMPLOYEE OF THE EMPLOYER ENGAGED IN THE PARTICULAR LABOR DISPUTE, FOR
THE PURPOSES OF SECTIONS 8, 9, AND 10 OF THIS ACT, AS AMENDED, BUT SUCH
LOSS OF STATUS FOR SUCH EMPLOYEE SHALL TERMINATE IF AND WHEN HE IS
REEMPLOYED BY SUCH EMPLOYER."  61 STAT. 140, 142-143, 29 U.S.C. SEC.
158(D).   FN7  "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, AND SHALL ALSO HAVE THE
RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES EXCEPT TO THE
EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN AGREEMENT REQUIRING
MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT AS
AUTHORIZED IN SECTION 8(A)(3). 

"SEC. 8.  (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 7: 

"(2)  TO DOMINATE OR INTERFERE WITH THE FORMATION OR ADMINISTRATION
OF ANY LABOR ORGANIZATION OR CONTRIBUTE FINANCIAL OR OTHER SUPPORT TO
IT:  ...  . 

"(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:  ...  ."  61 STAT. 140, 29 U.S.C.
SECS. 157, 158(A)(1), (2) AND (3). 

FN8  SEE NOTE 6, SUPRA. 

FN9  BEFORE THE 1947 AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT,
SEE LABOR BOARD V. POULTRYMEN'S SERVICE CORP., 138 F.2D 204, 210; LABOR
BOARD V. REMINGTON RAND, INC., 130 F.2D 919, 927-928; LABOR BOARD V.
MOORE-LOWRY FLOUR MILLS CO., 122 F.2D 419, 426; RITZWOLLER CO. V. LABOR
BOARD, 114 F.2D 432, 437; LABOR BOARD V. SUNSHINE MINING CO., 110 F.2D
780, 792; LABOR BOARD V. BOSS MANUFACTURING CO., 107 F.2D 574, 579;
LABOR BOARD V. CARLISLE LUMBER CO., 99 F.2D 533, 535; LABOR BOARD V.
REMINGTON RAND, INC., 94 F.2D 862, 871.  SINCE THE 1947 AMENDMENTS, SEE
LABOR BOARD V. WEST COAST CASKET CO., 205 F.2D 902, 907-908; LABOR
BOARD V. KOBRITZ, 193 F.2D 8, 16-17. 

FN10  SEE DYSON & SONS, 72 N.L.R.B. 445, 457; SCULLIN STEEL CO., 65
N.L.R.B. 1294, ENFORCED AS MODIFIED, 161 F.2D 143.  WHILE THESE CASES
WERE DECIDED UNDER THE ACT BEFORE ITS 1947 AMENDMENTS, THERE IS NOTHING
IN THE AMENDEMNTS TO SUGGEST THEIR SUBSEQUENT INAPPLICABILITY.  BOTH
ARE REFERRED TO WITH APPROVAL IN THE HOUSE CONFERENCE REPORT ON THE
1947 AMENDMENTS.  H.R.  CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 39. 
SEE ALSO, 93 CONG. REC. 6442.  BUT SEE NATIONAL ELECTRIC PRODUCTS
CORP., 80 N.L.R.B. 995, DISTINGUISHED BY THE BOARD IN THE INSTANT CASE,
103 N.L.R.B., AT 514. 

FN11  WHILE TWO MEMBERS OF THE BOARD AND ONE OF THE COURT OF APPEALS
DISAGREED WITH THEIR RESPECTIVE MAJORITIES AS TO PETITIONERS' DEFENSE
BASED UPON SEC. 8(D), NO MEMBER OF EITHER BODY HAS EXPRESSED A DISSENT
FROM THE BOARD'S INTERPRETATION OF THE CONTRACT. 

FN12  THE PREAMBLE STATES THAT "THE PARTIES HERETO DESIRE TO ENTER
INTO AN AGREEMENT RELATING TO THE RATES OF PAY, HOURS OF WORK AND OTHER
CONDITIONS OF EMPLOYMENT WHICH WILL PROVIDE METHODS OF HARMONIOUS CO
OPERATION BETWEEN THE EMPLOYERS AND THEIR EMPLOYEES AND TO THAT END
ACCOMPLISH FAIR AND PEACEFUL ADJUSTMENTS WHICH MAY ARISE WITHOUT
INTERRUPTION OF THE EMPLOYERS' BUSINESS  ...  ." 

THE BALANCE OF THE CONTRACT RELATES TO:  (1) LIMITATION OF EMPLOYMENT
TO UNION MEMBERS IN GOOD STANDING; DEFINITIONS OF EXEMPT EMPLOYEES AND
UNION SHOP; (2) AVAILABILITY OF ARBITRATION, UNDER SEC. 19, IN DISPUTES
AS TO FAILURES TO MAINTAIN UNION MEMBERSHIPS; (3) CHECKOFF OF UNION
DUES; (4) EXEMPT EMPLOYEES AND NEW EMPLOYEES; (5) STRIKE WAIVER AS
QUOTED IN TEXT; (6) LOCKOUT WAIVER AS FOLLOWS:  "THE EMPLOYERS AGREE
THAT THERE SHALL BE NO LOCKOUT DURING THE TERM OF THIS AGREEMENT."  (7)
ARBITRATION, UNDER SEC. 19, TO DETERMINE WHETHER A STRIKE, WORK
STOPPAGE OR LOCKOUT HAS ACTUALLY OCCURRED; (8) PROBATIONARY PERIODS FOR
NEW EMPLOYEES; (9) EMPLOYERS TO HAVE CONTROL OVER PLANT PRODUCTION AND
BUSINESS REQUIREMENTS RESULTING IN LAYOFFS, FURLOUGHS, OR INTRA-PLANT
TRANSFERS; (10) EMPLOYEE SENIORITY; (11) HOURS OF WORK; (12) WORK WEEKS
AND EXTRA SHIFTS; (13) REST PERIODS; (14) OVERTIME; (15) HOLIDAYS; (16)
RATES OF PAY AND WAGE INCENTIVES; (17) CONTRACT NOT TO BE INTERPRETED
SO AS TO REDUCE WAGES, STANDARDS OR WORKING CONDITIONS; (18) UNION
OFFICERS WHO ARE ACTIVE EMPLOYEES AND UNION STEWARDS GOVERNED BY PLANT
RULES; (19)(A) DISPUTES AS TO MEANING AND APPLICATION OF THE CONTRACT
ARE SUBJECT TO ARBITRATION; (B) RIGHTS OF EMPLOYEES TO PRESENT
GRIEVANCES TO THEIR EMPLOYERS ARE ASSURED; (20) NOTICE OF WORK DAYS;
(21) VACATIONS; (22) EMPLOYERS' RIGHTS TO MANAGE PLANT AND TO DISCHARGE
EMPLOYEES "FOR PROPER CAUSE" PRESERVED; UNION TO COOPERATE WITH
EMPLOYERS IN INTEREST OF EMPLOYEE EFFICIENCY; (23) A SPECIFIC WAGE
INCREASE IS PRESCRIBED IN LIEU OF AN INCREASE RECENTLY AWARDED BY
ARBITRATION; (24) EFFECTIVE DECEMBER 1, 1949 - NOVEMBER 30, 1950, WITH
60-DAY NOTICE OF INTENTION TO MODIFY OR TERMINATE, AND IN SUCH EVENT
"NEGOTIATIONS SHALL BE PROMPTLY STARTED." 

FN13  SEE NOTE 10, SUPRA. 

FN14  SEE LABOR BOARD V. RICE MILLING CO., 341 U.S., AT 673.   FN15
SEE NOTE 7, SUPRA. 

FN16  SEE NOTE 6, SUPRA. 

FN17  ALTHOUGH THE NOTICE REQUIRED TO PUT THE 60-DAY WAITING PERIOD
INTO OPERATION IN THIS CASE WAS NOT DELIVERED UNTIL 51 DAYS BEFORE THE
EXPIRATION OF THE CONTRACT, IT WAS DATED MORE THAN 60 DAYS BEFORE SUCH
EXPIRATION DATE AND IT HAS BEEN TREATED BY ALL CONCERNED AS PUTTING THE
WAITING PERIOD INTO EFFECT. 

FN18  SEE NOTE 4, SUPRA. 

FN19  SEE NOTE.  53 COL. L. REV. 1023, 1025. 

FN20  WITH THE EXCEPTION OF ONE SUGGESTION IN A MINORITY REPORT,
WHICH IS DISCUSSED ELSEWHERE, THE RELEVANT COMMITTEE REPORTS DESCRIBE
THE PROVISIONS OF SEC. 8(D) AS BEING APPLICABLE TO ECONOMIC STRIKES AND
DO NOT SUGGEST THEIR APPLICABILITY TO STRIKES AGAINST UNFAIR LABOR
PRACTICES IN VIOLATION OF SECS. 7 AND 8(A).  S. REP. NO. 105, 80TH
CONG., 1ST SESS. 24; H.R.  CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 34
35. 

FN21  S. REP. NO. 105, PT. 2, 80TH CONG., 1ST SESS. 21-22; 93 CONG.
REC. 6385, 4036, 6503. 

FN22  "THE FEARS AND DOUBTS OF THE OPPOSITION ARE NO AUTHORITATIVE
GUIDE TO THE CONSTRUCTION OF LEGISLATION.  IT IS THE SPONSORS THAT WE
LOOK TO WHEN THE MEANING OF THE STATUTORY WORDS IS IN DOUBT." 
SCHWEGMANN BROS. V. CALVERT CORP., 341 U.S. 384, 394-395, AND SEE S.H.
CAMP & CO. V. LABOR BOARD, 160 F.2D 519, 521. 

FN23  "  ...  TO HOLD THAT A WORKER WHO BECAUSE OF AN UNFAIR LABOR
PRACTICE HAS  ...  GONE ON STRIKE IS NO LONGER AN EMPLOYEE, WOULD BE TO
GIVE LEGAL SANCTION TO AN ILLEGAL ACT AND TO DENY REDRESS TO THE
INDIVIDUAL INJURED THEREBY."  S. REP. NO. 573, 74TH CONG., 1ST SESS.  6
7. 

FN24  FOR EXAMPLE, SENATOR BALL PROPOSED AN AMENDMENT, TO THE
DEFINITION OF "EMPLOYEE" IN SEC. 2(3) OF THE ACT, WHICH UNINTENTIONALLY
MIGHT HAVE ABROGATED THE DISTINCTION WHICH FAVORED THE EMPLOYEES' RIGHT
TO ENGAGE IN UNFAIR PRACTICE STRIKES AS AGAINST ECONOMIC STRIKES, BUT
AT ONCE WITHDREW THE AMENDMENT AS GOING "TOO FAR," WHEN THIS POSSIBLE
EFFECT OF IT WAS BROUGHT TO HIS ATTENTION.  93 CONG. REC. 1827-1828. 

FN25  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 27; H.R. CONF.
REP. NO. 510, 80TH CONG., 1ST SESS. 38-39. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE MINTON AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

THE PETITIONERS ARE CORPORATIONS IN THE PLASTICS MANUFACTURING
BUSINESS IN NEW YORK AND ARE SUBJECT TO THE TAFT-HARTLEY ACT, 61 STAT.
136, 29 U.S.C. SEC. 141.  IN NOVEMBER 1949 THEY NEGOTIATED A ONE-YEAR
COLLECTIVE BARGAINING AGREEMENT WITH THE CARPENTERS UNION, A.F.L.,
GOVERNING WAGES, HOURS AND WORKING CONDITIONS.  THE AGREEMENT PROVIDED
FOR THE ARBITRATION OF DISPUTES AND CONTAINED A CLAUSE OUTLAWING
STRIKES.  DURING THE LIFE OF THIS AGREEMENT, THE WHOLESALE AND
WAREHOUSE WORKERS UNION COMMENCED THE SOLICITATION OF MEMBERS AMONG
PETITIONERS' EMPLOYEES, AND IN SEPTEMBER 1950 REQUESTED THE NATIONAL
LABOR RELATIONS BOARD TO CERTIFY THEM AS EXCLUSIVE BARGAINING
REPRESENTATIVE. 

IN AN EFFORT TO KEEP THE WAREHOUSE WORKERS OUT OF THEIR PLANT, THE
PETITIONERS ENLISTED THE AID OF A THIRD UNION, THE PULP AND MILL
WORKERS.  THIS LATTER ORGANIZATION HAD BESTED THE WHOLESALE AND
WAREHOUSE WORKERS ELSEWHERE IN ORGANIZATIONAL WARS.  PETITIONERS
PROSELYTIZED AMONG THEIR EMPLOYEES ON BEHALF OF THE PULP AND MILL
WORKERS, WHICH IN LATE OCTOBER, HAVING GAINED SUFFICIENT ADHERENTS,
INTERVENED IN THE REPRESENTATION PROCEEDING INITIATED BEFORE THE BOARD
BY THE WAREHOUSE WORKERS. 

MEANWHILE THE CARPENTERS HAD WRITTEN PETITIONERS ON OCTOBER 10,
STATING THAT THEY WISHED TO NEGOTIATE A NEW CONTRACT TO TAKE EFFECT
UPON THE EXPIRATION OF THE CURRENT AGREEMENT.  THE LETTER MADE SPECIFIC
DEMANDS, AND BARGAINING OVER THEM FOLLOWED.  WHEN THE PETITIONERS'
ORGANIZATIONAL ACTIVITIES BECAME MANIFEST, THE CARPENTERS LODGED UNFAIR
LABOR-PRACTICE CHARGES WITH THE BOARD.  SOME MEMBERS OF THE INCUMBENT
UNION TRIED TO COUNTERACT THE INFLUENCE OF THE PETITIONERS UPON THE
EMPLOYEES.  FRANK CICCONE, A MACHINIST, WAS ONE WHO WAS ACTIVE IN
URGING EMPLOYEES TO REMAIN LOYAL TO THE CARPENTERS. 

ON NOVEMBER 10 CICCONE WAS DISCHARGED BECAUSE OF THIS.  THE
DISCHARGE, IN CONJUNCTION WITH THE ANTECEDENT EMPLOYER UNFAIR LABOR
PRACTICES, PRECIPITATED A PLANT-WIDE STRIKE ACCOMPANIED BY PEACEFUL
PICKETING.  THE STRIKE CONTINUED UNTIL EARLY FEBRUARY WHEN THE
PARTICIPANTS REQUESTED REINSTATEMENT.   THE REQUEST WAS REJECTED BY THE
PETITIONERS WHICH HAD EARLIER NOTIFIED THE STRIKERS OF THEIR
DISCHARGE. 

THE PROCEEDINGS THAT FOLLOWED BEFORE THE BOARD RESULTED IN FINDINGS
AGAINST THE EMPLOYERS OF UNFAIR LABOR PRACTICES UNDER SEC. 8(A)(1), (2)
AND (3).  THE BOARD ENTERED A CEASE AND DESIST ORDER, AND AFFIRMATIVELY
DIRECTED PETITIONERS TO REINSTATE THE DISCHARGED STRIKERS WITH BACK
PAY.  103 N.L.R.B. 511.  CHAIRMAN HERZOG AND MEMBER MURDOCK DISSENTED
FROM THE LATTER PORTION OF THE BOARD'S ORDER.  THE COURT OF APPEALS FOR
THE SECOND CIRCUIT (SWAN, J., DISSENTING IN PART) ENFORCED THE BOARD'S
ORDER.  214 F.2D 462.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANT
QUESTION OF THE CONSTRUCTION OF THE TAFT-HARTLEY ACT RAISED BY THE
CASE.  348 U.S. 910. 

PETITIONERS DID NOT CONTEND IN THE COURT OF APPEALS, NOR HAVE THEY
ARGUED HERE, THAT THE BOARD ERRED EITHER IN FINDING THEM GUILTY OF
COMMITTING UNFAIR LABOR PRACTICES, OR IN CONCLUDING THAT THE STRIKE WAS
PRECIPITATED BY THESE ILLEGAL PRACTICES.  RATHER THEY MAINTAIN THAT THE
BOARD LACKED THE POWER TO ORDER THE DISCHARGED STRIKERS REINSTATED. 
TWO REASONS ARE URGED.  FIRST, THE STRIKE IS CLAIMED TO CONSTITUTE A
BREACH OF THE LABOR AGREEMENT BETWEEN PETITIONERS AND THE BARGAINING
REPRESENTATIVE OF THE STRIKERS, AND WAS THEREFORE UNPROTECTED
ACTIVITY.  SUCH IS NOT THE CASE.  THE BOARD AND THE COURT OF APPEALS
RIGHTLY HELD THAT THE  "NO-STRIKE" CLAUSE IN THE CONTRACT DOES NOT
COVER A WORK STOPPAGE PROVOKED BY THE PETITIONERS' UNFAIR LABOR
PRACTICES.  THE SECOND REASON IS THAT THE STRIKERS CEASED TO BE
EMPLOYEES WITHIN THE MEANING OF THE ACT, AND THEREFORE WERE NOT
ENTITLED TO REINSTATEMENT.  PETITIONERS CONTEND THAT THE DISCHARGED
WORKERS LOST THEIR STATUS AS EMPLOYEES BY REASON OF THE 60-DAY "COOLING
OFF" PERIOD PROVIDED BY SEC. 8(D) OF THE ACT. 

BARGAIN COLLECTIVELY.  A LONG PROVISO IN THE SECTION TREATS
SPECIFICALLY OF THE DUTY DURING THE PERIOD OF CONTRACT RENEGOTIATION. 
THE RELEVANT PORTIONS OF THE SECTION FOLLOW: 

"  ...  WHERE THERE IS IN EFFECT A COLLECTIVE-BARGAINING CONTRACT
COVERING EMPLOYEES IN AN INDUSTRY AFFECTING COMMERCE, THE DUTY TO
BARGAIN COLLECTIVELY SHALL ALSO MEAN THAT NO PARTY TO SUCH CONTRACT
SHALL TERMINATE OR MODIFY SUCH CONTRACT, UNLESS THE PARTY DESIRING SUCH
TERMINATION OR MODIFICATION: 

"(1)  SERVES A WRITTEN NOTICE UPON THE OTHER PARTY TO THE CONTRACT OF
THE PROPOSED TERMINATION OR MODIFICATION SIXTY DAYS PRIOR TO THE
EXPIRATION DATE THEREOF, OR IN THE EVENT SUCH CONTRACT CONTAINS NO
EXPIRATION DATE, SIXTY DAYS PRIOR TO THE TIME IT IS PROPOSED TO MAKE
SUCH TERMINATION OR MODIFICATION: 

     *         * *         *         * 

"(4)  CONTINUES IN FULL FORCE AND EFFECT, WITHOUT RESORTING TO STRIKE
OR LOCK-OUT, ALL THE TERMS AND CONDITIONS OF THE EXISTING CONTRACT FOR
A PERIOD OF SIXTY DAYS AFTER SUCH NOTICE IS GIVEN OR UNTIL THE
EXPIRATION DATE OF SUCH CONTRACT, WHICHEVER OCCURS LATER:  ...  ANY
EMPLOYEE WHO ENGAGES IN A STRIKE WITHIN THE SIXTY-DAY PERIOD SPECIFIED
IN THIS SUBSECTION SHALL LOSE HIS STATUS AS AN EMPLOYEE OF THE EMPLOYER
ENGAGED IN THE PARTICULAR LABOR DISPUTE, FOR THE PURPOSES OF SECTIONS
8, 9, AND 10 OF THIS ACT, AS AMENDED, BUT SUCH LOSS OF STATUS FOR SUCH
EMPLOYEE SHALL TERMINATE IF AND WHEN HE IS REEMPLOYED BY SUCH
EMPLOYER."  61 STAT.  142-143, 29 U.S.C. SEC. 158(D). 

THE DISCHARGED EMPLOYEES STRUCK DURING THE 60-DAY PERIOD, FOR THE
NOTIFICATION REQUIRED BY SEC. 8(D)(1) WAS GIVEN ON OCTOBER 10, AND THE
STRIKE BEGAN ON NOVEMBER 10.  THE HOLDING OF THE BOARD, HOWEVER,
SUSTAINED BY THE COURT OF APPEALS, IS THAT THE LOSS-OF-STATUS PROVISION
DOES NOT APPLY TO AN UNFAIR-LABOR-PRACTICE STRIKER. 

THIS PROVISION WAS ONE OF THE AMENDMENTS TO THE WAGNER ACT MADE BY
THE LABOR MANAGEMENT RELATIONS ACT, 61 STAT. 136.  IF THE PROVISION,
COUCHED IN ORDINARY NONTECHNICAL LANGUAGE, IS TO BE READ AS ORDINARY
ENGLISH WORDS, CONCEDEDLY THE STRIKING EMPLOYEES LOST THEIR "STATUS" AS
EMPLOYEES OF PETITIONERS "FOR THE PURPOSES OF SECTIONS 8, 9, AND 10
...  ."  ACCORDINGLY THEY WERE NOT ENTITLED TO RE-EMPLOYMENT BY THE
PETITIONERS, AND THE BOARD WAS WITHOUT AUTHORITY TO ORDER THEIR
REINSTATEMENT.  THE REAL PROBLEM, THEN, IS TO DETERMINE WHETHER
CONTROLLING CONSIDERATIONS PRECLUDE GIVING THE ORDINARY MEANING TO WHAT
CONGRESS HAS WRITTEN.  WHILE LITERALNESS OF CONSTRUCTION DOES NOT
CONCLUDE ASCERTAINMENT OF A STATUTE'S MEANING, IT CERTAINLY IS THE
BEGINNING. 

THE SO-CALLED CANONS OF CONSTRUCTION ARE NOT TECHNICAL RULES OF LAW
WHICH AFFORD THE ANSWER TO A PROBLEM LIKE THIS.  BUT THEY ARE "AXIOMS
OF EXPERIENCE" (BOSTON SAND & GRAVEL CO. V. UNITED STATES, 278 U.S. 41,
48), HELPFUL GUIDES IN DETERMINING WHEN LANGUAGE AS PLAIN AS OURS
SHOULD BE RESPECTED AND ENFORCED.  RELEVANT GUIDES IN CONSTRUING AN
AMENDATORY PROVISION LIKE THE ONE IN ISSUE ARE:  (1) WHAT WAS THE STATE
OF THE LAW BEFORE THE AMENDMENT AND (2) WHAT LIGHT IS SHED ON THE
SPECIFIC PROVISION BY PLACING IT IN THE CONTEXT OF THE LEGISLATION,
I.E., THE TAFT-HARTLEY ACT, OF WHICH IT IS A PART, IN ORDER TO SECURE
HARMONY AND NOT DISCORD OF RESULT.  IN A WORD, ENACTMENTS LIKE THE
WAGNER ACT AND THE TAFT-HARTLEY ACT MUST BE CONSIDERED AS AN ORGANIC
WHOLE. 

UNDER THE ORIGINAL WAGNER ACT, EMPLOYEES WERE GIVEN THE RIGHT IN SEC.
7 "TO SELF-ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS,
TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING,
AND TO ENGAGE IN CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION."  DUTIES WERE IMPOSED
UPON THE EMPLOYER UNDER SEC. 8.  AMONG THESE, HE COULD NOT INTERFERE
WITH THE EXERCISE BY EMPLOYEES OF THEIR RIGHT UNDER SEC. 7, AND HE WAS
REQUIRED TO BARGAIN IN GOOD FAITH WITH THE EMPLOYEES' REPRESENTATIVE. 
WHEN THE BOARD FOUND THAT AN EMPLOYER HAD VIOLATED HIS DUTY UNDER SEC.
8, IT WAS EMPOWERED UNDER SEC. 10 TO ORDER THE EMPLOYER TO CEASE AND
DESIST FROM SO DOING AND TO TAKE ACTION UNDOING HIS VIOLATION,
INCLUDING THE REINSTATEMENT OF DISCHARGED EMPLOYEES, IF SUCH
REINSTATEMENT WOULD EFFECTUATE THE POLICIES OF THE ACT. 

WHILE THE EMPLOYER HAD NUMEROUS OBLIGATIONS TO HIS EMPLOYEES AND
THEIR BARGAINING REPRESENTATIVE, THE UNION AND THE EMPLOYEES WERE UNDER
NO STATUTORY DUTY TO THE EMPLOYER.  FOR EXAMPLE, THE UNION WAS NOT
REQUIRED TO BARGAIN IN GOOD FAITH, AND IT WAS NOT FORBIDDEN TO STRIKE
IN ORDER TO ACHIEVE ITS DEMANDS DURING A PERIOD OF CONTRACT
RENEGOTIATION. 

IF THIS CASE HAD COME UP UNDER THE WAGNER ACT THE RESULTS WOULD BE
CLEAR.  THE EMPLOYERS VIOLATED SEC. 8 AND THEREBY UNLEASED THE STRIKE. 
SUCH A STRIKE WOULD NOT HAVE BEEN IN VIOLATION OF ANY STATUTORY DUTY
BECAUSE THE UNION AND THE EMPLOYEES HAD NO DUTIES UNDER THE WAGNER
ACT.  SINCE THE EMPLOYERS HAD COMMITTED AN UNFAIR LABOR PRACTICE, THE
BOARD HAD JURISDICTION AND COULD ORDER THE DISCHARGED STRIKERS
REINSTATED WITH BACK PAY.  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S.
177.  FURTHERMORE, THE EMPLOYERS' DISCHARGE OF THEIR EMPLOYEES BECAUSE
THEY ENGAGED IN A STRIKE WAS ITSELF AN UNFAIR LABOR PRACTICE UNDER SEC.
8 FOR IT INTERFERED WITH THEIR SEC. 7 RIGHT TO ENGAGE IN "CONCERTED
ACTIVITIES." 

THE WAGNER ACT DID NOT DEFINE "CONCERTED ACTIVITIES."  ALL COLLECTIVE
ACTION, HOWEVER, WAS NOT CONCERTED ACTIVITY PROTECTED BY SEC. 7.  WE
HELD IN LABOR BOARD V. FANSTEEL METALLURGICAL CORP., 306 U.S. 240, THAT
A SIT-DOWN STRIKE WAS NOT SEC. 7 ACTIVITY; AND IN SOUTHERN S.S. CO. V.
LABOR BOARD, 316 U.S. 31, WE DECIDED THAT A STRIKE IN VIOLATION OF THE
LAWS AGAINST MUTINY WAS NOT PROTECTED UNDER SEC. 7.  IF AN EMPLOYER
INTERFERES WITH COLLECTIVE EMPLOYEE ACTION WHICH IS NOT SANCTIONED BY
SEC. 7, HE DOES NOT VIOLATE SEC. 8, AND IN THE ABSENCE OF A VIOLATION
OF SEC. 8 THE BOARD CANNOT TAKE ACTION UNDER SEC. 10.  THUS IF AN
EMPLOYER DISCHARGES WORKERS BECAUSE THEY ENGAGED IN A SIT-DOWN STRIKE
FOR HIGHER WAGES, THE BOARD CANNOT ORDER HIM TO REINSTATE THE
STRIKERS.  SINCE SEC. 8, HOWEVER, DID NOT PLACE ANY DUTIES UPON
EMPLOYEES OR UNIONS, MOST PEACEFUL COLLECTIVE ACTION WAS PROTECTED
UNDER SEC.  7, BECAUSE MOST PEACEFUL ACTIVITY DID NOT INFRINGE SOME
IMPLICIT FEDERAL LABOR POLICY OR SOME OTHER FEDERAL POLICY, SUCH AS
THAT REPRESENTED BY THE STATUTE AGAINST MUTINY. 

THE TAFT-HARTLEY ACT CHANGED THE SITUATION.  SECTION 8 OF THE WAGNER
ACT WAS AMENDED AND DUTIES WERE PLACED UPON UNIONS.  COLLECTIVE ACTION
WHICH VIOLATES ANY OF THESE DUTIES IS OF COURSE ACTIVITY UNPROTECTED BY
SEC. 7.  SEE COX, THE RIGHT TO ENGAGE IN CONCERTED ACTIVITIES, 26 IND.
L.J. 319, 325-333 (1951).  ONE OF THESE NEW UNION DUTIES, AND AN
IMPORTANT ONE, IS CONTAINED IN SEC. 8(D): UNIONS MAY NOT STRIKE TO
ENFORCE THEIR DEMANDS DURING THE 60-DAY "COOLING-OFF" PERIOD. 

BY REASON OF THIS NEW ENACTMENT, PARTICIPATING WORKERS WOULD NOT BE
ENGAGED IN A PROTECTED ACTIVITY UNDER SEC. 7 BY STRIKING FOR THE MOST
LEGITIMATE ECONOMIC REASONS DURING THE 60-DAY PERIOD.   THE STRIKE
WOULD BE IN VIOLATION OF THE PROVISION OF THAT SECTION WHICH SAYS THAT
DURING THE PERIOD THERE SHALL BE NO RESORT TO A STRIKE.  THE EMPLOYER
COULD DISCHARGE SUCH STRIKERS WITHOUT VIOLATING SEC. 8.  THIS WOULD BE
SO IF SEC. 8 WERE WITHOUT THE LOSS-OF-STATUS PROVISION.  THE BOARD
WOULD BE POWERLESS TO ORDER REINSTATEMENT UNDER SEC. 10.  THE LOSS-OF
STATUS PROVISION IN SEC. 8(D) DOES NOT CURTAIL THE BOARD'S POWER, SINCE
IT DID NOT HAVE POWER TO ORDER REINSTATEMENT WHERE A STRIKE IS RESORTED
TO FOR ECONOMIC REASONS BEFORE THE 60-DAY PERIOD HAS EXPIRED.  IN SUCH
A SITUATION THE STRIKER HAS NO RIGHTS UNDER SECS. 8 AND 10.  YET THE
BOARD WOULD HAVE US CONSTRUE THE LOSS-OF-STATUS PROVISION AS APPLICABLE
ONLY TO THE ECONOMIC STRIKER AND QUALIFYING A POWER WHICH THE BOARD
DOES NOT HAVE. 

IT IS WITH RESPECT TO THE UNFAIR-LABOR-PRACTICE STRIKER THAT THE
PROVISION SERVES A PURPOSE.  THIS BECOMES CLEAR IF WE ASSUME THAT THERE
WERE NO SUCH PROVISION AND EXAMINE THE CONSEQUENCES OF ITS ABSENCE.  ON
SUCH AN ASSUMPTION, A STRIKE BASED ON AN UNFAIR LABOR PRACTICE BY THE
EMPLOYER DURING THE 60-DAY PERIOD MAY OR MAY NOT BE A PROTECTED
ACTIVITY UNDER SEC. 7.  IF IT IS, OBVIOUSLY DISCHARGED STRIKERS WOULD
BE ENTITLED TO REINSTATEMENT.  THE STRIKE WOULD NOT BE A SEC. 7
ACTIVITY, HOWEVER, IF, FOR EXAMPLE, IT WERE IN BREACH OF A NO-STRIKE
CLAUSE IN THE CONTRACT WHICH EXTENDS TO A WORK STOPPAGE PROVOKED BY AN
EMPLOYER UNFAIR LABOR PRACTICE, CF. LABOR BOARD V. SANDS MFG. CO., 306
U.S. 332, 344, OR IF THE NO-STRIKE CALUSE IN SEC. 8(D)(4) (NOT TO BE
CONFUSED WITH THE LOSS-OF-STATUS PROVISION) EXTENDS TO SUCH A WORK
STOPPAGE.  HOWEVER, EVEN IF THE STRIKE IS NOT A SEC. 7 ACTIVITY, THE
BOARD IN THE UNFAIR-LABOR-PRACTICE STRIKE SITUATION AS DISTINGUISHED
FROM THE ECONOMIC STRIKE SITUATION, MAY IN ITS DISCRETION ORDER THE
DISCHARGED PARTICIPANTS REINSTATED.  THIS IS SO BECAUSE OF THE
ANTECEDENT EMPLOYER UNFAIR PRACTICE WHICH CAUSED THE STRIKE, AND WHICH
GAVE EMPLOYEES RIGHTS UNDER SEC. 8.  IF THE BOARD FINDS THAT
REINSTATEMENT OF SUCH STRIKERS IS A REMEDY THAT WOULD EFFECTUATE THE
POLICIES OF THE ACT, IT HAS THE POWER UNDER SEC. 10(C) TO ISSUE THE
NECESSARY ORDER. 

THIS WOULD NOT BE THE CASE, HOWEVER, IF THE LOSS-OF-STATUS PROVISION
WERE HELD APPLICABLE TO UNFAIR-LABOR-PRACTICE STRIKES, BECAUSE
PARTICIPATING WORKERS WOULD LOSE THEIR RIGHTS AS "EMPLOYEES" FOR THE
PURPOSES OF SECS. 8 AND 10.  UNDER THE ACT ONLY "EMPLOYEES" ARE
ELIGIBLE FOR REINSTATEMENT.  THE UNFAIR-LABOR-PRACTICE STRIKE, THEN, IS
THE ONE SITUATION WHERE LOSS OF STATUS FOR THE PURPOSES OF SECS. 8 AND
10 IS OF SIGNIFICANCE.  AT ANY RATE, WE HAVE NOT BEEN ADVISED OF ANY
OTHER SITUATION TO WHICH THE PROVISION WOULD APPLY. 

WE ARE THEREFORE CONFRONTED WITH THE DEMONSTRABLE FACT THAT IF THE
PROVISION STRIPPING STRIKERS OF THEIR STATUS AS EMPLOYEES DURING THE 60
DAY PERIOD IS TO HAVE ANY USEFULNESS AT ALL AND NOT BE AN IDLE
COLLECTION OF WORDS, THE FACT THAT A STRIKE DURING THAT PERIOD IS
INDUCED BY THE EMPLOYER'S UNFAIR LABOR PRACTICE IS IMMATERIAL.*  EVEN
THOUGH THIS MIGHT ON FIRST IMPRESSION SEEM AN UNDESIRABLE RESULT, IT IS
SO ONLY BY REJECTING THE IMPORTANT CONSIDERATIONS IN PROMOTING PEACEFUL
INDUSTRIAL RELATIONS WHICH MIGHT WELL HAVE DETERMINED THE ACTION OF
CONGRESS.  IN THE FIRST PLACE, THE CONGRESS MAY HAVE SET A VERY HIGH
VALUE ON PEACEFUL ADJUSTMENTS, I.E., THE ABSENCE OF STRIKES.  ONE MAY
TAKE JUDICIAL NOTICE OF THE FACT THAT THIS CONSIDERATION WAS AT THE
VERY FOREFRONT OF THE THINKING AND FEELING OF THE EIGHTIETH CONGRESS. 
AND THERE IS ANOTHER CONSIDERATION NOT UNRELATED TO THIS.  WHILE IN A
PARTICULAR CASE THE CAUSE OF A STRIKE MAY BE CLEAR, AND IN A PARTICULAR
CASE THERE MAY BE NO CONTROVERSY REGARDING THE CIRCUMSTANCES WHICH
PROVE THAT AN EMPLOYER COMMITTED AN UNFAIR LABOR PRACTICE, AS A MATTER
OF EXPERIENCE THAT IS NOT ALWAYS TRUE, INDEED OFTEN IT IS NOT TRUE. 
ONE OF THE SHARPEST CONTROVERSIES, ONE OF THE ISSUES MOST DIFFICULT OF
DETERMINATION, IS THE VERY QUESTION OF WHAT PRECIPITATED A WORK
STOPPAGE.  THIS IS ESPECIALLY TRUE WHERE A NEW CONTRACT IS BEING
NEGOTIATED.  IT IS NOT AT ALL UNREASONABLE, THEREFORE, TO FIND A
CONGRESSIONAL DESIRE TO PRECLUDE LITIGATION OVER WHAT ALL TOO OFTEN IS
A CONTENTIOUS SUBJECT AND TO DETER ALL STRIKES DURING THE CRUCIAL
PERIOD OF NEGOTIATION. 

*IT MAY BE NOTED THAT THE OPPONENTS OF THE TAFT-HARTLEY ACT OBJECTED
TO THE LOSS-OF-STATUS PROVISION FOR JUST THIS REASON: 

"THE SECTION IS SILENT AS TO THE BOARD'S AUTHORITY TO ACCOMMODATE
CONFLICTING ISSUES SUCH AS PROVOCATION ON THE PART OF THE EMPLOYER. 
UNDER THIS SECTION AN EMPLOYER DESIROUS OF RIDDING HIMSELF EITHER OF
THE EMPLOYEES OR THEIR REPRESENTATIVE CAN ENGAGE IN THE MOST
PROVOCATIVE CONDUCT WITHOUT FEAR OF REDRESS EXCEPT BY WAY OF A LENGTHY
HEARING BEFORE THE BOARD AND A SUBSEQUENT ADMONITION TO THEREAFTER
'CEASE AND DESIST' FROM SUCH PRACTICES.  IN STRIKING CONTRAST TO THE
RELATIVELY DELICATE TREATMENT PROVIDED FOR SUCH ACTION BY AN EMPLOYER,
EMPLOYEES UNIWLLLING IDLY TO COUNTENANCE ABUSE, WHO RESORT TO SELF-HELP
UNDER THE CIRCUMSTANCES ARE REMOVED FROM THE PROTECTION OF THE STATUTE
AND LOSE 'EMPLOYEE' STATUS.  AN EMPLOYER IS AT LIBERTY UNDER SUCH
CIRCUMSTANCES FREELY TO REPLACE ANY EMPLOYEE BOLD ENOUGH TO INSIST UPON
JUSTICE.  THE PROVISION DENIES TO THE BOARD THE EXERCISE OF ANY
DISCRETION TO ACCOMMODATE THE EQUITABLE DOCTRINE OF 'CLEAN HANDS.'  THE
PROVISIONS OF THE SECTION ARE CONCLUSIVE - THE EMPLOYEE IS SUBJECT TO
SUMMARY DISMISSAL IRRESPECTIVE OF THE EMPLOYER'S CONDUCT."  S. REP. NO.
105 (MINORITY), PART 2, 80TH CONG., 1ST SESS. 21-22 (1947). 

WE NEED NOT AGREE WITH A LEGISLATIVE JUDGMENT IN ORDER TO OBEY A
LEGISLATIVE COMMAND.  IT IS ENOUGH FOR US THAT CONGRESS DID NOT
LEGISLATE IDLY, BUT DID INTEND THE LOSS-OF-STATUS PROVISION TO HAVE AN
EFFECT.  "WE ARE NOT AT LIBERTY TO CONSTRUE ANY STATUTE SO AS TO DENY
EFFECT TO ANY PART OF ITS LANGUAGE.  IT IS A CARDINAL RULE OF STATUTORY
CONSTRUCTION THAT SIGNIFICANCE AND EFFECT SHALL, IF POSSIBLE, BE
ACCORDED TO EVERY WORD.  AS EARLY AS IN BACON'S ABRIDGMENT, SECT.  2,
IT WAS SAID THAT 'A STATUTE OUGHT, UPON THE WHOLE, TO BE SO CONSTRUED
THAT, IF IT CAN BE PREVENTED, NO CLAUSE, SENTENCE, OR WORD SHALL BE
SUPERFLUOUS, VOID, OR INSIGNIFICANT.'  THIS RULE HAS BEEN REPEATED
INNUMERABLE TIMES.  ANOTHER RULE EQUALLY RECOGNIZED IS THAT EVERY PART
OF A STATUTE MUST BE CONSTRUED IN CONNECTION WITH THE WHOLE, SO AS TO
MAKE ALL THE PARTS HARMONIZE, IF POSSIBLE, AND GIVE MEANING TO EACH." 
MARKET CO. V. HOFFMAN, 101 U.S. 112, 115-116.  SINCE THE LOSS-OF-STATUS
PROVISION HAS AN EFFECT ONLY IN AN UNFAIR-LABOR-PRACTICE STRIKE, THE
JUDGMENT OF THE COURT OF APPEALS SHOULD BE REVERSED. 
..END :

















UNITED STATES V. RYAN 350 U.S. 299 


NO. 281.  ARGUED JANUARY 19, 1956 - DECIDED FEBRUARY 27, 1956 - 225 F.2D
417, REVERSED AND REMANDED. 


WITHIN THE MEANING OF SEC. 302(B) OF THE LABOR MANAGEMENT RELATIONS
ACT, WHICH MAKES IT UNLAWFUL FOR "ANY REPRESENTATIVE OF ANY EMPLOYEES"
TO RECEIVE MONEY OR OTHER THING OF VALUE FROM THE EMPLOYER, AN
INDIVIDUAL WHO WAS THE PRESIDENT AND PRINCIPAL NEGOTIATOR OF A LABOR
UNION IS A "REPRESENTATIVE" OF EMPLOYEES.  PP. 300-307. 

(A)  THE TERM "REPRESENTATIVE" IN SEC. 302(B) IS NOT LIMITED TO "THE
EXCLUSIVE BARGAINING REPRESENTATIVE" OF THE EMPLOYEES, BUT INCLUDES ANY
PERSON AUTHORIZED BY THE EMPLOYEES TO ACT FOR THEM IN DEALINGS WITH
THEIR EMPLOYERS.  PP. 301-307. 

(B)  A NARROW READING OF THE TERM "REPRESENTATIVE" WOULD
SUBSTANTIALLY DEFEAT THE PURPOSE OF THE ACT.  PP. 304-305. 

(C)  IN THIS LEGISLATION CONGRESS WAS NOT AIMING SOLELY AT THE
WELFARE FUND PROBLEM.  P. 305. 

(D)  THE LEGISLATIVE HISTORY SUPPORTS THE CONSTRUCTION HERE GIVEN
SEC. 302(B).  PP. 305-306. 

(E)  THE PROVISION IN THE LABOR MANAGEMENT RELATIONS ACT THAT THE
TERM "REPRESENTATIVE" SHALL HAVE THE MEANING THAT IT HAS IN THE
NATIONAL LABOR RELATIONS ACT DOES NOT REQUIRE THAT THE TERM AS USED IN
SEC. 302 BE CONSTRUED TO INCLUDE ONLY THE EXCLUSIVE BARGAINING
REPRESENTATIVE.  PP. 306-307. 

UNITED STATES V. RYAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IN THIS CASE IS WHETHER THE PRESIDENT AND
PRINCIPAL NEGOTIATOR OF A LABOR UNION IS A "REPRESENTATIVE" OF
EMPLOYEES WITHIN THE MEANING OF SEC. 302(B) OF THE LABOR MANAGEMENT
RELATIONS ACT OF 1947.  61 STAT. 136, 29 U.S.C. SEC. 141.  THAT SECTION
MAKES IT UNLAWFUL FOR "ANY REPRESENTATIVE OF ANY EMPLOYEES" TO RECEIVE
MONEY OR OTHER THING OF VALUE FROM THE EMPLOYER.  THE DISTRICT COURT,
128 F. SUPP. 128, HELD THAT RESPONDENT JOSEPH P. RYAN WAS A
"REPRESENTATIVE" WITHIN THE MEANING OF SEC. 302(B), BUT THE COURT OF
APPEALS FOR THE SECOND CIRCUIT REVERSED, JUDGE HAND DISSENTING.  225
F.2D 417.  BECAUSE OF THE IMPORTANCE OF THIS QUESTION IN THE
ADMINISTRATION OF THE ACT, WE GRANTED CERTIORARI, 350 U.S. 860. 

RYAN WAS PRESIDENT OF THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
(ILA) DURING THE YEARS 1950 AND 1951.  THE ILA AND ITS AFFILIATED
GROUPS WERE THE RECOGNIZED COLLECTIVE-BARGAINING AGENTS FOR LONGSHORE
LABOR IN THE PORT OF NEW YORK, AND BARGAINED THROUGH A WAGE SCALE
COMMITTEE OF WHICH RYAN WAS A MEMBER.  HE SIGNED THE AGREEMENTS
NEGOTIATED DURING THAT PERIOD.  J. ARTHUR KENNEDY & SON, INC., AND
DANIELS & KENNEDY, INC., WERE CONCERNS ENGAGED IN STEVEDORING
OPERATIONS; THEIR EMPLOYEES WERE MEMBERS OF THE ILA, AND THEY WERE
BOUND BY THE AGREEMENTS NEGOTIATED WITH THAT UNION BY THE NEW YORK
SHIPPING ASSOCIATION.  THE DISTRICT COURT FOUND THAT JAMES C. KENNEDY,
PRESIDENT OF BOTH KENNEDY COMPANIES, HAD GIVEN RYAN $1,000 IN DECEMBER
OF EACH YEAR FROM 1946 THROUGH 1951, AND $500 IN APRIL 1951.  THESE
FINDINGS ARE NOT DISPUTED.  RYAN WAS INDICTED UNDER SEC. 320(B) FOR
ACCEPTING THE ONE 1950 AND TWO 1951 PAYMENTS.  (FN1)  HE WAS FOUND
GUILTY AND SENTENCED TO SIX MONTHS' IMPRISONMENT ON EACH OF THE THREE
COUNTS, THE SENTENCES TO RUN CONCURRENTLY, AND FINED $2,500. 

THE COURT OF APPEALS REVERSED SOLELY ON ITS INTERPRETATION OF THE
TERM "REPRESENTATIVE" IN SEC. 302(B) OF THE LMRA.  IT CONCLUDED THAT
THE TERM HAD A TECHNICAL MEANING IN LABOR LEGISLATION AND WAS LIMITED
TO "THE EXCLUSIVE BARGAINING REPRESENTATIVE" OF THE EMPLOYEES, WHICH IN
THIS CASE WAS THE ILA ITSELF.  SINCE THE SECTION APPLIED ONLY TO THE
"REPRESENTATIVE," PAYMENTS TO RYAN INDIVIDUALLY WERE NOT COVERED EVEN
THOUGH AS PRESIDENT OF THE REPRESENTATIVE UNION, HE WAS A MEMBER OF ITS
WAGE SCALE COMMITTEE AND SIGNED ALL NEGOTIATED AGREEMENTS.  WE DO NOT
DECIDE WHETHER ANY OFFICIAL OF A UNION IS EX OFFICIO A REPRESENTATIVE
OF EMPLOYEES UNDER SEC. 302.  WE BELIEVE, HOWEVER, THAT RESPONDENT'S
RELATIONSHIP BRINGS HIM WITHIN THAT TERM. 

THE LMRA PROVIDES THAT THE TERM "REPRESENTATIVE" SHALL HAVE "THE SAME
MEANING AS WHEN USED IN THE NATIONAL LABOR RELATIONS ACT AS AMENDED BY
THIS ACT."  SEC. 501(3).  THE PERTINENT DEFINITION APPEARS IN SEC. 2(4)
OF THE NLRA:  "THE TERM 'REPRESENTATIVES' INCLUDES ANY INDIVIDUAL OR
LABOR ORGANIZATION."  49 STAT. 449, 450, 29 U.S.C. SECS. 151, 152(4). 

THE BOARD HAS HELD THAT EMPLOYEES MAY CHOOSE TO ELECT AN INDIVIDUAL
AS EXCLUSIVE OR SOLE BARGAINING REPRESENTATIVE.  (FN2)  THE COURT OF
APPEALS, LAYING MUCH STRESS ON THESE HOLDINGS, ASSUMES THAT THE
POSSIBILITY OF SUCH A ONE-MAN EXCLUSIVE BARGAINING REPRESENTATIVE,
THOUGH EXTREMELY RARE, (FN3) IS THE ONLY REASON FOR THE INCLUSION OF
THE WORD "INDIVIDUAL" IN THIS DEFINITION.  WE CANNOT ACCEPT SUCH AN
ANOMALOUS VIEW.  IT IS OBVIOUS THAT ANY LABOR ORGANIZATION, EVEN WHEN
SERVING AS AN EXCLUSIVE BARGAINING REPRESENTATIVE, CAN NEGOTIATE,
SPEAK, AND ACT ONLY THROUGH INDIVIDUALS.  ALL COLLECTIVE BARGAINING IS
CONDUCTED BY INDIVIDUALS WHO REPRESENT LABOR AND MANAGEMENT.  MANY
LIMITATIONS OR PROHIBITIONS UPON LABOR ORGANIZATION ACTION CAN BE
EFFECTIVE ONLY IF THERE ARE CORRESPONDING LIMITATIONS OR PROHIBITIONS
ON THE INDIVIDUALS WHO ACT FOR THE LABOR ORGANIZATION.  CONGRESS, WE
BELIEVE, PLACED THE IDENTICAL LIMITATIONS ON BOTH INDIVIDUALS AND
ORGANIZATIONS BY TERMING BOTH "REPRESENTATIVES" OF EMPLOYEES IN SEC.
2(4).  WE AGREE WITH JUDGE HAND THAT IN USING THE TERM "REPRESENTATIVE"
CONGRESS INTENDED THAT IT INCLUDE ANY PERSON AUTHORIZED BY THE
EMPLOYEES TO ACT FOR THEM IN DEALINGS WITH THEIR EMPLOYERS. 

CONSIDERING THE PRECISE WORDS OF THE STATUTE - "ANY REPRESENTATIVE OF
ANY EMPLOYEES" - IT IS PLAIN THAT THEIR LITERAL MEANING STRONGLY
SUGGESTS THAT THEY WERE MEANT TO INCLUDE SOMEONE IN THE POSITION OF
RESPONDENT RYAN WHO REPRESENTED EMPLOYEES BOTH AS A UNION PRESIDENT AND
PRINCIPAL NEGOTIATOR.  AND THIS INTERPRETATION IS STRENGTHENED BY A
CONSIDERATION OF THE FULL TEXT OF SEC. 302.  (FN4) PARAGRAPHS (A) AND
(B) OF SEC. 302 MAKE IT UNLAWFUL FOR ANY EMPLOYER TO OFFER, OR ANY
REPRESENTATIVE TO ACCEPT, MONEY OR OTHER THING OF VALUE.  PARAGRAPH (C)
LISTS FIVE EXCEPTIONS TO THESE BROAD PROHIBITIONS.  THE FIRST EXEMPTS
PAYMENTS AS COMPENSATION FOR SERVICES "TO ANY REPRESENTATIVE WHO IS AN
EMPLOYEE" OF THE EMPLOYER.  THUS IT IS CLEAR THAT SEC. 302 ANTICIPATES
THAT A "REPRESENTATIVE" MAY BE AN INDIVIDUAL.  OF THE REMAINING FOUR
EXCEPTIONS, ONE COULD APPLY ONLY TO UNIONS BUT EACH OF THE OTHER THREE
COULD APPLY AS READILY TO INDIVIDUALS.  (FN5) 

FURTHER, A NARROW READING OF THE TERM "REPRESENTATIVE" WOULD
SUBSTANTIALLY DEFEAT THE CONGRESSIONAL PURPOSE.  IN 1946 CONGRESS WAS
DISTURBED BY THE DEMANDS OF CERTAIN UNIONS THAT THE EMPLOYERS
CONTRIBUTE TO "WELFARE FUNDS" WHICH WERE IN THE SOLE CONTROL OF THE
UNION OR ITS OFFICERS AND COULD BE USED AS THE INDIVIDUAL OFFICERS SAY
FIT.  THE UNITED MINE WORKERS' DEMAND THAT MINE OPERATORS CREATE A
WELFARE FUND FOR THE UNION BY CONTRIBUTING 10 CENTS FOR EACH TON OF
COAL MINED, CAUSED THE CONGRESS TO ACT.  THE CASE BILL, H.R. 4908, 79TH
CONG., 2D SESS., WHICH REGULATED WELFARE FUNDS IN A MANNER SIMILAR TO
SEC. 302, WAS ENACTED IN 1946, BUT WAS VETOED BY THE PRESIDENT.  THE
FOLLOWING YEAR THE TAFT-HARTLEY ACT CONTAINING SEC. 302 WAS PASSED OVER
ANOTHER VETO.  BUT, IF "REPRESENTATIVE" MEANS ONLY THE "EXCLUSIVE
BARGAINING REPRESENTATIVE," THE EXPLICIT LIMITATIONS ON WELFARE FUNDS
IN SEC. 302(C)(5) MAY BE EASILY EVADED.  PAYMENTS MADE DIRECTLY TO
UNION OFFICIALS, OR TO OTHER INDIVIDUALS AS TRUSTEES, WOULD APPARENTLY
BE EXCLUDED FROM SEC. 302.  THUS, A NARROW CONSTRUCTION WOULD FRUSTRATE
THE PRIMARY INTENT OF CONGRESS. 

NOR CAN IT BE CONTENDED THAT IN THIS LEGISLATION CONGRESS WAS AIMING
SOLELY AT THE WELFARE FUND PROBLEM.  SUCH A SUGGESTION IS SUPPORTED
NEITHER BY THE LEGISLATIVE HISTORY NOR THE STRUCTURE OF THE SECTION. 
THE ARRANGEMENT OF SEC. 302 IS SUCH THAT THE ONLY REFERENCE TO WELFARE
FUNDS IS CONTAINED IN SEC. 302(C)(5).  IF CONGRESS INTENDED TO DEAL
WITH THAT PROBLEM ALONE, IT COULD HAVE DONE SO DIRECTLY, WITHOUT
WRITING A BROAD PROHIBITION IN SUBSECTIONS (A) AND (B) AND FIVE
SPECIFIC EXCEPTIONS THERETO IN SUBSECTION (C), ONLY THE LAST OF WHICH
COVERS WELFARE FUNDS.  AS THE STATUTE READS, IT APPEARS TO BE A
CRIMINAL PROVISION, MALUM PROHIBITUM, WHICH OUTLAWS ALL PAYMENTS, WITH
STATED EXCEPTIONS, BETWEEN EMPLOYER AND REPRESENTATIVE. 

THE LEGISLATIVE HISTORY SUPPORTS THESE CONCLUSIONS.  AS PASSED BY THE
HOUSE OF REPRESENTATIVES, THE HARTLEY BILL FORBADE EMPLOYER
CONTRIBUTIONS TO UNION WELFARE FUNDS, AND MADE IT AN UNFAIR LABOR
PRACTICE TO GIVE FAVORS TO "ANY PERSON IN A POSITION OF TRUST IN A
LABOR ORGANIZATION  ...  ."  H.R. 3020, 80TH CONG., 1ST SESS., SEC.
8(A)(2).  THE SCOPE OF THIS BILL WAS ENLARGED WHEN IT REACHED THE
SENATE TO INCLUDE, IN THE WORDS OF SENATOR TAFT, A "CASE WHERE THE
UNION REPRESENTATIVE IS SHAKING DOWN THE EMPLOYER  ...  ."  93 CONG.
REC. 4746.  THE RESULTING SENATE AMENDMENT MADE IT CRIMINAL BOTH FOR
THE EMPLOYER AND THE "REPRESENTATIVE" OF EMPLOYEES TO ENGAGE IN SUCH
PRACTICES. 

IT IS NOT DISPUTED THAT THE PLAIN LANGUAGE OF THE SENATE VERSION OF
THE BILL BROUGHT WITHIN ITS COVERAGE ANY INDIVIDUAL WHO DEALT WITH AN
EMPLOYER ON BEHALF OF TWO OR MORE OF THE LATTER'S EMPLOYEES CONCERNING
EMPLOYMENT MATTERS.  AS PASSED BY THE SENATE, SEC. 302 CONTAINED A
SPECIAL DEFINITION OF THE TERM "REPRESENTATIVE."  (FN6)  THE JOINT
CONFERENCE COMMITTEE SUBSTITUTED FOR IT THE DEFINITION OF THAT TERM IN
THE NLRA, AS AMENDED.  SEC.  501(3).  THIS SUBSTITUTION WAS AMONG THOSE
DESCRIBED BY THE JOINT CONFERENCE COMMITTEE REPORT AS "MINOR CLARIFYING
CHANGES."  H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS., AT 67. 

WE CANNOT READ THIS HISTORY AS SUPPORTING THE CONCLUSION THAT THE
SCOPE OF SEC. 302 WAS LIMITED BY THE JOINT CONFERENCE TO INCLUDE ONLY
THE "EXCLUSIVE BARGAINING REPRESENTATIVE" OF EMPLOYEES.  SUCH A CHANGE
WOULD HAVE DRASTICALLY REDUCED THE SCOPE OF THE SECTION, AND COULD
HARDLY BE DESCRIBED AS A "MINOR CLARIFYING" CHANGE.  CERTAINLY, IN THE
FACE OF THIS LEGISLATIVE HISTORY, WE SHOULD NOT REDUCE THE LEGISLATION
TO A PRACTICAL NULLITY. 

IT IS INSISTED THAT THIS INTERPRETATION CLASHES WITH THE USE OF THE
TERM "REPRESENTATIVE" IN VARIOUS SECTIONS OF THE NLRA.  IN THE MAJORITY
OF THE EXAMPLES GIVEN, THE SCOPE OF THE TERM IS MADE CLEAR BY OTHER
WORDS IN THE PROVISIONS THEMSELVES.  (FN7)  BUT FURTHER, THE PROVISION
IN THE LMRA THAT "REPRESENTATIVE" SHALL HAVE ITS NLRA MEANING IS NO
MORE APPLICABLE TO SEC. 302 THAN TO ANY OTHER SECTION OF THE LMRA, AND
IN SEVERAL OTHER SECTIONS OF THAT ACT IT IS PATENT THAT
"REPRESENTATIVE" CANNOT BE CONSTRUED TO INCLUDE ONLY THE EXCLUSIVE
BARGAINING REPRESENTATIVE.  FOR EXAMPLE, SEC. 204(A) REFERS TO
"EMPLOYERS AND EMPLOYEES AND THEIR REPRESENTATIVES," AND SEC. 211(A)
REFERS TO "INTERESTED REPRESENTATIVES OF EMPLOYERS, EMPLOYEES, AND THE
GENERAL PUBLIC."  THERE ARE OTHER EXAMPLES, BUT THESE ARE SUFFICIENT. 
IF THE SEVERELY RESTRICTED CONSTRUCTION CONTENDED FOR THE WORD
"REPRESENTATIVE" IS INAPPLICABLE TO ONE SECTION OF THE LMRA, THERE IS
NO COMPULSION TO APPLY IT TO ANY OTHER SECTION. 

WE CONCLUDE, THEREFORE, THAT SEC. 302 PROHIBITS PAYMENTS BY EMPLOYERS
TO INDIVIDUALS WHO REPRESENT EMPLOYEES IN THEIR RELATIONS WITH THE
EMPLOYERS.  THE JUDGMENT IS REVERSED AND REMANDED. 

FN1  THE PREVIOUS SECTION, 302(A), MAKES IT UNLAWFUL FOR ANY EMPLOYER
"TO PAY OR DELIVER, OR TO AGREE TO PAY OR DELIVER, ANY MONEY OR OTHER
THING OF VALUE TO ANY REPRESENTATIVE OF ANY OF HIS EMPLOYEES WHO ARE
EMPLOYED IN AN INDUSTRY AFFECTING COMMERCE."  THE RECORD DOES NOT
DISCLOSE WHETHER THE GOVERNMENT HAS TAKEN ANY ACTION UNDER THIS SECTION
AGAINST THE EMPLOYERS INVOLVED. 

FN2 SEE THE ROBINSON-RANSBOTTOM POTTERY CO., 27 N.L.R.B. 1093;
LOUISVILLE SANITARY WIPER CO., 65 N.L.R.B. 88. 

FN3  STATISTICS SUPPLIED BY THE NLRB FOR THE LAST TWO YEARS SHOW THAT
ONE-MAN EXCLUSIVE BARGAINING REPRESENTATIVES CONSTITUTE LESS THAN 0.1%
OF ALL REPRESENTATIVES CERTIFIED BY THE BOARD.  IN FISCAL YEAR 1955,
THE BOARD CERTIFIED 1 INDIVIDUAL IN 2,904 ELECTIONS IN WHICH
REPRESENTATIVES WERE CHOSEN.   THERE WERE 10 PETITIONS FOR
CERTIFICATION FILED BY INDIVIDUALS IN 4,372 ELECTIONS.  IN FISCAL 1954,
5 INDIVIDUALS WERE CERTIFIED IN 3,108 ELECTIONS IN WHICH
REPRESENTATIVES WERE CHOSEN.  THERE WERE 11 SUCH PETITIONS AND A TOTAL
OF 4,813 ELECTIONS. 

FN4  "SEC.  302.  (A)  IT SHALL BE UNLAWFUL FOR ANY EMPLOYER TO PAY
OR DELIVER, OR TO AGREE TO PAY OR DELIVER, ANY MONEY OR OTHER THING OF
VALUE TO ANY REPRESENTATIVE OF ANY OF HIS EMPLOYEES WHO ARE EMPLOYED IN
AN INDUSTRY AFFECTING COMMERCE. 

"(B)  IT SHALL BE UNLAWFUL FOR ANY REPRESENTATIVE OF ANY EMPLOYEES
WHO ARE EMPLOYED IN AN INDUSTRY AFFECTING COMMERCE TO RECEIVE OR
ACCEPT, OR TO AGREE TO RECEIVE OR ACCEPT, FROM THE EMPLOYER OF SUCH
EMPLOYEES ANY MONEY OR OTHER THING OF VALUE. 

"(C)  THE PROVISIONS OF THIS SECTION SHALL NOT BE APPLICABLE (1) WITH
RESPECT TO ANY MONEY OR OTHER THING OF VALUE PAYABLE BY AN EMPLOYER TO
ANY REPRESENTATIVE WHO IS AN EMPLOYEE OR FORMER EMPLOYEE OF SUCH
EMPLOYER, AS COMPENSATION FOR, OR BY REASON OF, HIS SERVICES AS AN
EMPLOYEE OF SUCH EMPLOYER; (2) WITH RESPECT TO THE PAYMENT OR DELIVERY
OF ANY MONEY OR OTHER THING OF VALUE IN SATISFACTION OF A JUDGMENT OF
ANY COURT OR A DECISION OR AWARD OF AN ARBITRATOR OR IMPARTIAL CHAIRMAN
OR IN COMPROMISE, ADJUSTMENT, SETTLEMENT OR RELEASE OF ANY CLAIM,
COMPLAINT, GRIEVANCE, OR DISPUTE IN THE ABSENCE OF FRAUD OR DURESS; (3)
WITH RESPECT TO THE SALE OR PURCHASE OF AN ARTICLE OR COMMODITY AT THE
PREVAILING MARKET PRICE IN THE REGULAR COURSE OF BUSINESS; (4) WITH
RESPECT TO MONEY DEDUCTED FROM THE WAGES OF EMPLOYEES IN PAYMENT OF
MEMBERSHIP DUES IN A LABOR ORGANIZATION: PROVIDED, THAT THE EMPLOYER
HAS RECEIVED FROM EACH EMPLOYEE, ON WHOSE ACCOUNT SUCH DEDUCTIONS ARE
MADE, A WRITTEN ASSIGNMENT WHICH SHALL NOT BE IRREVOCABLE FOR A PERIOD
OF MORE THAN ONE YEAR, OR BEYOND THE TERMINATION DATE OF THE APPLICABLE
COLLECTIVE AGREEMENT, WHICHEVER OCCURS SOONER; OR (5) WITH RESPECT TO
MONEY OR OTHER THING OF VALUE PAID TO A TRUST FUND ESTABLISHED BY SUCH
REPRESENTATIVE, FOR THE SOLE AND EXCLUSIVE BENEFIT OF THE EMPLOYEES OF
SUCH EMPLOYER, AND THEIR FAMILIES AND DEPENDENTS (OR OF SUCH EMPLOYEES,
FAMILIES, AND DEPENDENTS JOINTLY WITH THE EMPLOYEES OF OTHER EMPLOYERS
MAKING SIMILAR PAYMENTS, AND THEIR FAMILIES AND DEPENDENTS):  PROVIDED,
THAT (A) SUCH PAYMENTS ARE HELD IN TRUST FOR THE PURPOSE OF PAYING,
EITHER FROM PRINCIPAL OR INCOME OR BOTH, FOR THE BENEFIT OF EMPLOYEES,
THEIR FAMILIES AND DEPENDENTS, FOR MEDICAL OR HOSPITAL CARE, PENSIONS
ON RETIREMENT OR DEATH OF EMPLOYEES, COMPENSATION FOR INJURIES OR
ILLNESS RESULTING FROM OCCUPATIONAL ACTIVITY OR INSURANCE TO PROVIDE
ANY OF THE FOREGOING, OR UNEMPLOYMENT BENEFITS OR LIFE INSURANCE,
DISABILITY AND SICKNESS INSURANCE, OR ACCIDENT INSURANCE; (B) THE
DETAILED BASIS ON WHICH SUCH PAYMENTS ARE TO BE MADE IS SPECIFIED IN A
WRITTEN AGREEMENT WITH THE EMPLOYER, AND EMPLOYEES AND EMPLOYERS ARE
EQUALLY REPRESENTED IN THE ADMINISTRATION OF SUCH FUND, TOGETHER WITH
SUCH NEUTRAL PERSONS AS THE REPRESENTATIVES OF THE EMPLOYERS AND THE
REPRESENTATIVES OF THE EMPLOYEES MAY AGREE UPON AND IN THE EVENT THE
EMPLOYER AND EMPLOYEE GROUPS DEADLOCK ON THE ADMINISTRATION OF SUCH
FUND AND THERE ARE NO NEUTRAL PERSONS EMPOWERED TO BREAK SUCH DEADLOCK,
SUCH AGREEMENT PROVIDES THAT THE TWO GROUPS SHALL AGREE ON AN IMPARTIAL
UMPIRE TO DECIDE SUCH DISPUTE, OR IN EVENT OF THEIR FAILURE TO AGREE
WITHIN A REASONABLE LENGTH OF TIME, AN IMPARTIAL UMPIRE TO DECIDE SUCH
DISPUTE SHALL, ON PETITION OF EITHER GROUP, BE APPOINTED BY THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT WHERE THE TRUST
FUND HAS ITS PRINCIPAL OFFICE, AND SHALL ALSO CONTAIN PROVISIONS FOR AN
ANNUAL AUDIT OF THE TRUST FUND, A STATEMENT OF THE RESULTS OF WHICH
SHALL BE AVAILABLE FOR INSPECTION BY INTERESTED PERSONS AT THE
PRINCIPAL OFFICE OF THE TRUST FUND AND AT SUCH OTHER PLACES AS MAY BE
DESIGNATED IN SUCH WRITTEN AGREEMENT; AND (C) SUCH PAYMENTS AS ARE
INTENDED TO BE USED FOR THE PURPOSE OF PROVIDING PENSIONS OR ANNUITIES
FOR EMPLOYEES ARE MADE TO A SEPARATE TRUST WHICH PROVIDES THAT THE
FUNDS HELD THEREIN CANNOT BE USED FOR ANY PURPOSE OTHER THAN PAYING
SUCH PENSIONS OR ANNUITIES. 

"(D)  ANY PERSON WHO WILLFULLY VIOLATES ANY OF THE PROVISIONS OF THIS
BE SUBJECT TO A FINE OF NOT MORE THAN $10,000 OR TO IMPRISONMENT FOR
NOT MORE THAN ONE YEAR, OR BOTH  ...  ."  61 STAT.  157, 29 U.S.C. SEC.
186. 

FN5  SUBSECTION (4), RELATING TO CHECK-OFF PAYMENTS FOR UNION DUES,
PRESUPPOSES THAT THE "REPRESENTATIVE" IS THE LABOR UNION ITSELF. 
SUBSECTIONS (2), RELATING TO PAYMENTS OF JUDGMENTS OR ARBITRATION
AWARDS, (3), RELATING TO PURCHASE OR SALE OF GOODS IN THE ORDINARY
COURSE OF BUSINESS, AND (5), RELATING TO PAYMENTS TO TRUST OR WELFARE
FUNDS, HOWEVER, ARE CONSISTENT WITH EITHER INTERPRETATION OF THE TERM
"REPRESENTATIVE." 

FN6  SECTION 302(G) OF THE SENATE VERSION STATED, "FOR THE PURPOSES
OF THIS SECTION, THE TERM 'REPRESENTATIVE' MEANS ANY LABOR ORGANIZATION
WHICH, OR ANY INDIVIDUAL WHO, IS AUTHORIZED OR PURPORTS TO BE
AUTHORIZED TO DEAL WITH AN EMPLOYER, ON BEHALF OF TWO OR MORE OF HIS
EMPLOYEES, CONCERNING GRIEVANCES, LABOR DISPUTES, WAGES, RATES OF PAY,
HOURS OF EMPLOYMENT, OR CONDITIONS OF WORK  ...  ." 

FN7  EXAMPLES ARE, SEC. 1, "DESIGNATION OF REPRESENTATIVES OF THEIR
OWN CHOOSING, FOR THE PURPOSE OF NEGOTIATING THE TERMS AND CONDITIONS
OF THEIR EMPLOYMENT," SEC. 7, "TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING," SEC. 8(B)(4)(B) AND (C), "A
LABOR ORGANIZATION AS THE REPRESENTATIVE OF HIS EMPLOYEES," SEC.
8(B)(4)(D), "BARGAINING REPRESENTATIVE FOR EMPLOYEES." 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





COMMISSIONER OF INTERNAL REVENUE V. SOUTHWEST EXPLORATION CO. 350 U.S.
308 


ARGUED JANUARY 23-24, 1956 - DECIDED FEBRUARY 27, 1956 - 220 F.2D 58,
REVERSED - 132 CT. CL. 427, 132 F. SUPP. 718, AFFIRMED. 


A DRILLING COMPANY CONTRACTED TO DEVELOP CERTAIN OIL DEPOSITS LYING
OFF THE COAST OF CALIFORNIA BY SLANT DRILLING FROM SITES LOCATED ON THE
PROPERTY OF ADJACENT UPLAND OWNERS.  STATE LAW PERMITTED SUCH OFFSHORE
OIL TO BE EXTRACTED ONLY BY DRILLING FROM UPLAND DRILL SITES OR FILLED
LANDS, AND NO FILLED LANDS WERE AVAILABLE.  THE DRILLING COMPANY AGREED
TO PAY THE UPLAND OWNERS 24 1/2% OF THE NET PROFITS FOR THE USE OF
THEIR LAND.  HELD:  UNDER THE INTERNAL REVENUE CODE OF 1939, THE UPLAND
OWNERS, NOT THE DRILLING COMPANY, WERE ENTITLED TO TAKE THE STATUTORY
DEPLETION ALLOWANCE ON THIS SHARE OF THE PROFITS.  PP. 309-317. 

(A)  THE RIGHT TO DEPLETION IS DETERMINED BY WHETHER OR NOT THE
TAXPAYER HAS AN ECONOMIC INTEREST, I.E., AN INTEREST IN THE OIL IN
PLACE AND INCOME DERIVED SOLELY FROM PRODUCTION.  PP. 313-315. 

(B)  SINCE THE UPLANDS WERE ESSENTIAL TO ANY PRODUCTION FROM THE
OFFSHORE OIL DEPOSITS, AGREEMENT OF THE UPLAND OWNERS TO LET THEIR LAND
BE USED FOR DRILLING IN RETURN FOR A SHARE OF THE NET PROFITS GAVE THEM
THE REQUISITE ECONOMIC INTEREST.  PP. 315-316. 

(C)  THEIR INCOME WAS DEPENDENT ENTIRELY ON PRODUCTION, AND THE VALUE
OF THEIR INTEREST DECREASED WITH EACH BARREL OF OIL PRODUCED.  P. 316. 

(D)  WHERE, AS HERE, A PARTY ESSENTIAL TO THE DRILLING FOR AND
EXTRACTION OF OIL HAS MADE AN INDISPENSABLE CONTRIBUTION OF THE USE OF
REAL PROPERTY ADJACENT TO THE OIL DEPOSITS IN RETURN FOR A SHARE IN THE
NET PROFITS FROM THE PRODUCTION OF OIL, THAT PARTY HAS AN ECONOMIC
INTEREST WHICH ENTITLES HIM TO DEPLETION ON THE INCOME THUS RECEIVED. 
PP. 316-317. 

COMMISSIONER OF INTERNAL REVENUE V. SOUTHWEST EXPLORATION CO. 

NO. 286.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT.* 

*TOGETHER WITH NO. 287, UNITED STATES V. HUNTINGTON BEACH CO., ON
CERTIORARI TO THE UNITED STATES COURT OF CLAIMS, ARGUED JANUARY 24,
1956. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE SOUTHWEST EXPLORATION CO., RESPONDENT IN NO. 286, CONTRACTED TO
DEVELOP CERTAIN OIL DEPOSITS LYING OFF THE COAST OF CALIFORNIA BY
WHIPSTOCK DRILLING FROM SITES LOCATED ON THE PROPERTY OF ADJACENT
UPLAND OWNERS.  SOUTHWEST AGREED TO PAY TO SUCH OWNERS 24 1/2% OF THE
NET PROFITS FOR THE USE OF THEIR LAND.  BOTH SOUTHWEST AND THE UPLAND
OWNERS SOUGHT TO TAKE THE STATUTORY DEPLETION ALLOWANCE OF 27 1/2% ON
THIS SHARE OF THE PROFITS.  THE TAX COURT DECIDED THAT SOUTHWEST WAS
ENTITLED TO THE DEPLETION ALLOWANCE, 18 T.C. 961, AND THE NINTH CIRCUIT
AFFIRMED, 220 F.2D 58.  IN THE OTHER CASE, THE COURT OF CLAIMS HELD
THAT ONE OF THE UPLAND OWNERS, HUNTINGTON BEACH CO., RESPONDENT IN NO.
287, WAS ENTITLED TO THE DEPLETION ALLOWANCE ON ITS SHARE OF THE NET
INCOME, 132 CT. CL. 427, 132 F. SUPP.  718.  WE GRANTED CERTIORARI IN
BOTH CASES, 350 U.S. 818, BECAUSE BOTH THE DRILLING COMPANY AND THE
UPLAND OWNERS CANNOT BE ENTITLED TO DEPLETION ON THE SAME INCOME.  WE
AGREE WITH THE COURT OF CLAIMS.  (FN1) 

THE CALIFORNIA STATE LANDS ACT OF 1938 PROVIDED THAT THE STATE'S
OFFSHORE OIL MIGHT BE EXTRACTED ONLY FROM WELLS DRILLED ON FILLED LANDS
OR SLANT DRILLED FROM UPLAND DRILL SITES TO THE SUBMERGED OIL
DEPOSITS.  (FN2)  OTHER PROVISIONS OF THE SAME STATUTE REQUIRED THAT
"DERRICKS, MACHINERY, AND ANY AND ALL OTHER SURFACE STRUCTURES,
EQUIPMENT, AND APPLIANCES," BE LOCATED ONLY ON FILLED LANDS OR
UPLANDS.  IT WAS FURTHER PROVIDED THAT THE STATE COMMISSION MIGHT
REQUIRE EACH PROSPECTIVE BIDDER FOR SUCH A STATE LEASE TO FURNISH, AS A
CONDITION PRECEDENT TO CONSIDERATION OF HIS BID, SATISFACTORY EVIDENCE
OF "PRESENT ABILITY TO FURNISH ALL NECESSARY SITES AND RIGHTS OF WAY
FOR ALL OPERATIONS CONTEMPLATED UNDER THE PROVISIONS OF THE PROPOSED
LEASE."  (FN3) 

IN 1938 CALIFORNIA PUBLISHED NOTICE OF ITS INTENTION TO RECEIVE BIDS
FOR THE LEASE OF CERTAIN OIL LANDS PURSUANT TO THIS STATUTE.  AT THE
TIME SOUTHWEST - A CORPORATION ORGANIZED IN 1933 BUT COMPLETELY
INACTIVE UNTIL THE TRANSACTION AT ISSUE HERE - DID NOT OWN, LEASE,
OPERATE OR CONTROL ANY OF THE UPLANDS ADJACENT TO THE AREA OF OIL
DEPOSITS.  IT IS AGREED THAT THERE WERE NO FILLED LANDS AVAILABLE. 
SOUTHWEST ENTERED INTO THREE AGREEMENTS WITH THE UPLAND OWNERS, AND WAS
GRANTED THE RIGHT OF INGRESS TO AND EGRESS FROM THE DESIGNATED UPLANDS
AND THE RIGHT TO CONSTRUCT, USE AND MAINTAIN ALL EQUIPMENT NECESSARY
FOR DRILLING ON THE SAME LANDS.  THE UPLAND OWNERS RESERVED TO
THEMSELVES THE RIGHT TO GIVE EASEMENTS OR SUBSURFACE WELL CROSSINGS IN
THE UPLANDS, EXCEPT THAT THEY WOULD NOT ALLOW SUCH EASEMENTS FOR THE
PURPOSE OF DRILLING INTO THE OFFSHORE OIL DEPOSITS WHILE SOUTHWEST
RETAINED AN INTEREST GRANTED TO IT BY STATE EASEMENT.  SOUTHWEST'S
RIGHTS WERE EXPRESSLY SUBJECT TO ALL RIGHTS PREVIOUSLY GRANTED BY THE
UPLAND OWNERS.  THE AGREEMENTS DEFINED "NET PROFITS" AND PROVIDED THAT
SOUTHWEST WOULD PAY A TOTAL OF 24 1/2% OF ITS NET PROFITS FROM
EXTRACTION AND SALE OF OIL TO THE UPLAND OWNERS.  (FN4) IT WAS ALSO
PROVIDED THAT THE UPLAND OWNERS DID NOT ACQUIRE A SHARE IN THE LEASE OR
OIL DEPOSIT BY VIRTUE OF THE LAST AGREEMENT AND THAT IT WAS NOT THE
INTENTION OF THE PARTIES TO CREATE A PARTNERSHIP RELATIONSHIP. 

AS A RESULT OF THESE AGREEMENTS, THE UPLAND OWNERS ENDORSED
SOUTHWEST'S BID FOR A LEASE SUBMITTED TO THE STATE OF CALIFORNIA. 
SOUTHWEST, AS THE ONLY BIDDER, WAS GRANTED "EASEMENT NO. 392" BY THE
STATE IN CONSIDERATION OF THE "ROYALTY TO BE PAID, THE COVENANTS TO BE
PERFORMED, AND THE CONDITIONS TO BE OBSERVED BY THE GRANTEE."  ONE SUCH
CONDITION WAS THAT SET OUT IN PARAGRAPH (1): 

"THAT EACH WELL DRILLED PURSUANT TO THE TERMS OF THIS AGREEMENT SHALL
BE SLANT DRILLED FROM THE UPLANDS TO AND INTO THE SUBSURFACE OF THE
STATE LANDS.  DERRICKS, MACHINERY, AND ANY AND ALL OTHER SURFACE
STRUCTURES, EQUIPMENT AND APPLIANCES SHALL BE LOCATED ONLY UPON THE
UPLANDS AND ALL SURFACE OPERATIONS SHALL BE CONDUCTED THEREFROM." 

THE AGREEMENT FURTHER PROVIDED THAT, IF SOUTHWEST SHOULD "DEFAULT IN
THE PERFORMANCE OR OBSERVANCE OF ANY OF THE TERMS, COVENANTS AND
STIPULATIONS HEREOF," THE STATE MIGHT RE-ENTER, CANCEL THE AGREEMENT OR
CLOSE DOWN WELLS NOT BEING OPERATED ACCORDING TO THE AGREEMENT. 

THE WELLS DRILLED PURSUANT TO THIS LEASE HAVE PRODUCED OIL
CONTINUOUSLY SINCE 1939.  IN NO. 286, SOUTHWEST EXPLORATION CO., THE
TAX YEARS 1939 THROUGH 1945 ARE INVOLVED.  IF SOUTHWEST MAY CLAIM THE
DEPLETION ALLOWANCE ON THE UPLAND OWNER'S SHARE OF THE PROFITS DURING
THIS PERIOD, ITS TAX LIABILITY IS REDUCED BY APPROXIMATELY $175,000. 
IN NO. 287, HUNTINGTON BEACH CO., THE UPLAND OWNER IS CLAIMING A TAX
REFUND OF $135,000 FOR THE YEAR 1948 ALONE.  (FN5) 

AN ALLOWANCE FOR DEPLETION HAS BEEN RECOGNIZED IN OUR REVENUE LAWS
SINCE 1913.  IT IS BASED ON THE THEORY THAT THE EXTRACTION OF MINERALS
GRADUALLY EXHAUSTS THE CAPITAL INVESTMENT IN THE MINERAL DEPOSIT. 
PRESENTLY, THE DEPLETION ALLOWANCE IS A FIXED PERCENTAGE OF GROSS
INCOME WHICH CONGRESS ALLOWS TO BE EXCLUDED; THIS EXCLUSION IS DESIGNED
TO PERMIT A RECOUPMENT OF THE OWNER'S CAPITAL INVESTMENT IN THE
MINERALS SO THAT WHEN THE MINERALS ARE EXHAUSTED, THE OWNER'S CAPITAL
IS UNIMPAIRED.  THE PRESENT ALLOWANCE, HOWEVER, BEARS LITTLE
RELATIONSHIP TO THE CAPITAL INVESTMENT, AND THE TAXPAYER IS NOT LIMITED
TO A RECOUPMENT OF HIS ORIGINAL INVESTMENT.  THE ALLOWANCE CONTINUES SO
LONG AS MINERALS ARE EXTRACTED, AND EVEN THOUGH NO MONEY WAS ACTUALLY
INVESTED IN THE DEPOSIT.  THE DEPLETION ALLOWANCE IN THE INTERNAL
REVENUE CODE OF 1939 IS SOLELY A MATTER OF CONGRESSIONAL GRACE; IT IS
LIMITED TO 27 1/2% OF GROSS INCOME FROM THE PROPERTY AFTER EXCLUDING
FROM GROSS INCOME "ANY RENTS OR ROYALTIES" PAID BY THE TAXPAYER WITH
RESPECT TO THE PROPERTY.  (FN6) 

THE COMPLEXITIES OF OIL OPERATIONS AND RISKS INCIDENT TO PROSPECTING
HAVE LED TO INTRICATE, MULTIPARTY TRANSACTIONS, SO THAT IT IS OFTEN
DIFFICULT TO DETERMINE WHICH PARTIES ARE ENTITLED TO A PART OF THE
ALLOWANCE.  THE STATUTE MERELY PROVIDES IN SEC. 23(M) THAT IN THE CASE
OF LEASES THE DEPLETION ALLOWANCE SHOULD BE "EQUITABLY APPORTIONED
BETWEEN THE LESSOR AND LESSEE." 

IN DETERMINING WHICH PARTIES ARE ENTITLED TO DEPLETION ON OIL AND GAS
INCOME, THIS COURT HAS RELIED ON TWO INTERRELATED CONCEPTS WHICH WERE
FIRST FORMULATED IN PALMER V. BENDER, 287 U.S. 551.  THERE, THE
TAXPAYER, A LESSEE OF CERTAIN OIL AND GAS PROPERTIES, HAD TRANSFERRED
HIS INTEREST IN THESE PROPERTIES TO TWO OIL COMPANIES IN RETURN FOR A
CASH BONUS, A FUTURE PAYMENT TO BE MADE "OUT OF ONE-HALF OF THE FIRST
OIL PRODUCED AND SAVED," AND AN ADDITIONAL ROYALTY OF ONE-EIGHTH OF THE
OIL PRODUCED AND SAVED.  IN UPHOLDING THE TAXPAYER'S RIGHT TO DEPLETION
ON ALL SUCH INCOME, THE COURT BASED ITS DECISION ON THE GROUNDS THAT A
TAXPAYER IS ENTITLED TO DEPLETION WHERE HE HAS:  (1) "ACQUIRED, BY
INVESTMENT, ANY INTEREST IN THE OIL IN PLACE," AND (2) SECURED BY LEGAL
RELATIONSHIP "INCOME DERIVED FROM THE EXTRACTION OF THE OIL, TO WHICH
HE MUST LOOK FOR A RETURN OF HIS CAPITAL."  287 U.S., AT 557. 

THESE TWO FACTORS, USUALLY CONSIDERED TOGETHER, CONSTITUTE THE
REQUIREMENT OF "AN ECONOMIC INTEREST."  THIS COURT HAS FOUND THE
REQUISITE INTEREST IN THE OIL IN PLACE TO HAVE BEEN RETAINED BY
ASSIGNOR OF AN OIL LEASE, THOMAS V. PERKINS, 301 U.S. 655, THE LESSOR
OF OIL PROPERTIES FOR A SHARE OF NET PROFITS, KIRBY PETROLEUM CO. V.
COMMISSIONER, 326 U.S. 599, AND THE GRANTOR OF OIL LANDS CONSIDERED AS
AN ASSIGNOR OF DRILLING RIGHTS, BURTON-SUTTON OIL CO. V. COMMISSIONER,
328 U.S. 25.  THE COURT FOUND NO SUCH INTEREST IN THE CASE OF A
PROCESSOR OF NATURAL GAS WHO HAD ONLY CONTRACTED TO BUY GAS AFTER
EXTRACTION, HELVERING V. BANKLINE OIL CO., 303 U.S. 362, AND IN THE
CASE OF A FORMER STOCKHOLDER WHO HAD TRADED HIS SHARES IN A CORPORATION
WHICH OWNED OIL LEASES FOR A SHARE OF NET INCOME FROM PRODUCTION OF THE
LEASED WELLS, HELVERING V. O'DONNELL, 303 U.S. 370. 

THE SECOND FACTOR HAS BEEN INTERPRETED TO MEAN THAT THE TAXPAYER MUST
LOOK SOLELY TO THE EXTRACTION OF OIL OR GAS FOR A RETURN OF HIS
CAPITAL, AND DEPLETION HAS BEEN DENIED WHERE THE PAYMENTS WERE NOT
DEPENDENT ON PRODUCTION, HELVERING V. ELBE OIL LAND CO., 303 U.S. 372,
OR WHERE PAYMENTS MIGHT HAVE BEEN MADE FROM A SALE OF ANY PART OF THE
FEE INTEREST AS WELL AS FROM PRODUCTION.  ANDERSON V. HELVERING, 310
U.S. 404.  IT IS NOT SERIOUSLY DISPUTED HERE THAT THIS REQUIREMENT HAS
BEEN MET.  THE PROBLEM REVOLVES AROUND THE REQUIREMENT OF AN INTEREST
IN THE OIL IN PLACE. 

IT IS TO BE NOTED THAT IN EACH OF THE PRIOR CASES WHERE THE TAXPAYER
HAS HAD A SUFFICIENT ECONOMIC INTEREST TO ENTITLE HIM TO DEPLETION, HE
HAS ONCE HAD AT LEAST A FEE OR LEASEHOLD IN THE OIL-PRODUCING
PROPERTIES THEMSELVES.  NO PRIOR DEPLETION CASE DECIDED BY THIS COURT
HAS PRESENTED A SITUATION ANALOGOUS TO THAT HERE, WHERE A FEE OWNER OF
ADJOINING LANDS NECESSARY TO THE EXTRACTION OF OIL IS CLAIMING A
DEPLETION ALLOWANCE. 

SOUTHWEST CONTENDS THAT THERE CAN BE NO ECONOMIC INTEREST SEPARATE
FROM THE RIGHT TO ENTER AND DRILL FOR OIL ON THE LAND ITSELF.  SINCE
THE UPLAND OWNERS DID NOT THEMSELVES HAVE THE RIGHT TO DRILL FOR
OFFSHORE OIL, IT IS ARGUED THAT RESPONDENT - WHO HAS THE SOLE RIGHT TO
DRILL - HAS THE SOLE ECONOMIC INTEREST.  IT IS TRUE THAT THE EXCLUSIVE
RIGHT TO DRILL WAS GRANTED TO SOUTHWEST, AND IT IS ALSO TRUE THAT THE
AGREEMENTS EXPRESSLY CREATE NO INTEREST IN THE OIL IN THE UPLAND
OWNERS.  BUT THE TAX LAW DEALS IN ECONOMIC REALITIES, NOT LEGAL
ABSTRACTIONS, AND UPON CLOSER ANALYSIS IT BECOMES CLEAR THAT THESE
FACTORS DO NOT PRECLUDE AN ECONOMIC INTEREST IN THE UPLAND OWNERS. 

SOUTHWEST'S RIGHT TO DRILL WAS CLEARLY A CONDITIONAL RATHER THAN AN
ABSOLUTE GRANT.  WITHOUT THE PRIOR AGREEMENTS WITH THE UPLAND OWNERS,
SOUTHWEST COULD NOT EVEN HAVE QUALIFIED AS A BIDDER FOR A STATE LEASE. 
PERMISSION TO USE THE UPLAND SITES WAS THE EXPRESS CONDITION PRECEDENT
TO THE STATE'S CONSIDERATION OF SOUTHWEST'S BID, AND IT WAS ONE OF THE
EXPRESS CONDITIONS ON WHICH "EASEMENT NO. 392" WAS GRANTED TO
SOUTHWEST.  FOR A DEFAULT IN THAT CONDITION THE STATE RETAINED THE
RIGHT TO RE-ENTER OR TO CANCEL THE LEASE.  THUS IT IS SEEN THAT THE
UPLAND OWNERS HAVE PLAYED A VITAL ROLE AT EACH SUCCESSIVE STAGE OF THE
PROCEEDINGS.  WITHOUT THEIR PARTICIPATION THERE COULD HAVE BEEN NO BID,
NO LEASE, NO WELLS AND NO PRODUCTION. 

BUT SOUTHWEST CONTENDS THAT THE UPLAND OWNERS HERE CONTRIBUTED MERELY
PROPERTY WHICH WAS USEFUL BUT NOT NECESSARY TO THE DRILLING OPERATION. 
THE FACTS ARE TO THE CONTRARY.  STATE LAW REQUIRED THAT THE WELLS BE
DRILLED EITHER ON THE UPLANDS OR ON FILLED LANDS, AND THERE WERE NO
FILLED LANDS AVAILABLE.  BY HINDSIGHT SOUTHWEST NOW SUGGESTS THAT IT
MIGHT HAVE CONSTRUCTED A DRILLING ISLAND WHICH MIGHT HAVE BEEN
CONSIDERED AS FILLED LAND UNDER THE STATUTE.  THEN, TOO, PERHAPS THE
STATE ITSELF MIGHT HAVE CHANGED THE LAW OR CONDEMNED THE UPLANDS UNDER
EXISTING LAW.  BUT NONE OF THESE POSSIBILITIES OCCURRED.  THE FACT IS
THAT THE DRILLING ARRANGEMENT WAS ACHIEVED AND OIL PRODUCED IN THE ONLY
WAY THAT IT COULD HAVE BEEN, CONSISTENT WITH STATE LAW AND THE EXPRESS
REQUIREMENTS OF THE STATE'S LEASE. 

RECOGNIZING THAT THE LAW OF DEPLETION REQUIRES AN ECONOMIC RATHER THAN
A LEGAL INTEREST IN THE OIL IN PLACE, WE MAY PROCEED TO THE QUESTION OF
WHETHER THE UPLAND OWNERS HAD SUCH AN ECONOMIC INTEREST HERE.  WE FIND
THAT THEY DID.  PROXIMITY TO THE OFFSHORE OIL DEPOSITS AND EFFECT OF
THE STATE LAW COMBINED TO MAKE THE UPLAND OWNERS ESSENTIAL PARTIES TO
ANY DRILLING OPERATIONS.  THIS CONTROLLING POSITION GREATLY ENHANCED
THE VALUE OF THEIR LAND WHEN EXTRACTION OF OIL FROM THE STATE'S
OFFSHORE FIELDS BECAME A POSSIBILITY.  THE OWNERS MIGHT HAVE REALIZED
THIS VALUE BY SELLING THEIR INTEREST FOR A STATED SUM AND NO PROBLEM OF
DEPLETION WOULD HAVE BEEN PRESENTED.  BUT INSTEAD THEY CHOSE TO
CONTRIBUTE THE USE OF THEIR LAND IN RETURN FOR RENTAL BASED ON A SHARE
OF NET PROFITS.  THIS CONTRIBUTION WAS DEPENDENT ENTIRELY ON
PRODUCTION, AND THE VALUE OF THEIR INTEREST DECREASED WITH EACH BARREL
OF OIL PRODUCED.  NO MORE IS REQUIRED BY ANY OF THE EARLIER CASES. 

SOUTHWEST CONTENDS, FINALLY, THAT IF DEPLETION IS ALLOWED TO THE
UPLAND OWNERS IN THIS CASE, IT WOULD BE DIFFICULT TO LIMIT THE
PRINCIPLE IN INSTANCES OF STRANGERS "DISASSOCIATED FROM THE LEASE" WHO
MAY HAVE CONTRIBUTED AN ESSENTIAL FACILITY TO THE DRILLING OPERATION IN
RETURN FOR A SHARE OF THE NET PROFITS.  BUT THOSE PROBLEMS ARE NOT
BEFORE US IN THIS CASE WHERE THE UPLAND OWNERS COULD HARDLY BE SAID TO
BE "DISASSOCIATED FROM THE LEASE."  WE DECIDE ONLY THAT WHERE, IN THE
CIRCUMSTANCES OF THIS CASE, A PARTY ESSENTIAL TO THE DRILLING FOR AND
EXTRACTION OF OIL HAS MADE AN INDISPENSALBE CONTRIBUTION OF THE USE OF
REAL PROPERTY ADJACENT TO THE OIL DEPOSITS IN RETURN FOR A SHARE IN THE
NET PROFITS FROM THE PRODUCTION OF OIL, THAT PARTY HAS AN ECONOMIC
INTEREST WHICH ENTITLES HIM TO DEPLETION ON THE INCOME THUS RECEIVED. 
FOR THE FOREGOING REASONS THE JUDGMENT IN NO. 286, AS TO SOUTHWEST
EXPLORATION COMPANY, IS REVERSED AND THAT IN NO. 287, AS TO HUNTINGTON
BEACH COMPANY, IS AFFIRMED. 

NO. 286, REVERSED. 

NO. 287, AFFIRMED. 

FN1  IN THE COURTS BELOW, THE COMMISSIONER TOOK TECHNICALLY
INCONSISTENT POSITIONS, OPPOSING THE DEPLETION ALLOWANCE IN BOTH CASES
AND LOSING IN BOTH.  BEFORE THIS COURT THE COMMISSIONER URGED THAT
DEPLETION BE DENIED THE DRILLING COMPANY AND ALLOWED TO THE UPLAND
OWNERS ON THE LATTER'S 24 1/2% OF NET PROFITS. 

FN2  CAL. STAT. (EXTRA SESSION 1938), C. 5, SEC. 87. 

FN3  ID., SEC. 89. 

FN4  THIS SHARE WAS THE TOTAL OF THE FOLLOWING PERCENTAGES OF NET
PROFITS TO BE PAID TO THE THREE UPLAND OWNERS: 

17.75% TO HUNTINGTON BEACH COMPANY. 

1.576% TO PACIFIC ELECTRIC RAILWAY COMPANY. 

5.174% TO PACIFIC ELECTRIC LAND COMPANY. 

FN5  FOR THE TAX YEARS 1942 THROUGH 1946, HUNTINGTON BEACH COMPANY
CLAIMED AND WAS ALLOWED TO DEDUCT DEPLETION ON ITS SHARE OF THE NET
PROFITS.  THE UNITED STATES IS SEEKING RECOVERY OF THIS MONEY IN A SUIT
NOW PENDING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, SOUTHERN DIVISION.  THE AMOUNT AT ISSUE THERE
IS SOMETHING OVER $500,000. 

FN6  PERTINENT SECTIONS OF THE INTERNAL REVENUE CODE OF 1939
PROVIDE: 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     *         *   *         *         * 

"(M) DEPLETION.  - IN THE CASE OF MINES, OIL AND GAS WELLS, OTHER
NATURAL DEPOSITS, AND TIMBER, A REASONABLE ALLOWANCE FOR DEPLETION AND
FOR DEPRECIATION OF IMPROVEMENTS, ACCORDING TO THE PECULIAR CONDITIONS
IN EACH CASE; SUCH REASONABLE ALLOWANCE IN ALL CASES TO BE MADE UNDER
RULES AND REGULATIONS TO BE PRESCRIBED BY THE COMMISSIONER, WITH THE
APPROVAL OF THE SECRETARY  ...  .  IN THE CASE OF LEASES THE DEDUCTIONS
SHALL BE EQUITABLY APPORTIONED BETWEEN THE LESSOR AND LESSEE  ...  . 

"FOR PERCENTAGE DEPLETION ALLOWABLE UNDER THIS SUBSECTION, SEE

"SEC. 114.  BASIS FOR DEPRECIATION AND DEPLETION. 

     *         *         *         *         * 

"(B) BASIS FOR DEPLETION. 

     *         *         *         *         * 

"(3) PERCENTAGE DEPLETION FOR OIL AND GAS WELLS.  IN THE CASE OF OIL
AND GAS WELLS THE ALLOWANCE FOR DEPLETION UNDER SECTION 23(M) SHALL BE
27 1/2 PER CENTUM OF THE GROSS INCOME FROM THE PROPERTY DURING THE
TAXABLE YEAR, EXCLUDING FROM SUCH GROSS INCOME AN AMOUNT EQUAL TO ANY
RENTS OR ROYALTIES PAID OR INCURRED BY THE TAXPAYER IN RESPECT OF THE
PROPERTY.  SUCH ALLOWANCE SHALL NOT EXCEED 50 PER CENTUM OF THE NET
INCOME OF THE TAXPAYER (COMPUTED WITHOUT ALLOWANCE FOR DEPLETION) FROM
THE PROPERTY, EXCEPT THAT IN NO CASE SHALL THE DEPLETION ALLOWANCE
UNDER SECTION 23(M) BE LESS THAN IT WOULD BE IF COMPUTED WITHOUT
REFERENCE TO THIS PARAGRAPH."  53 STAT. 45, 26 U.S.C. SEC. 114. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :




SHIELDS V. ATLANTIC COAST LINE RAILROAD CO. 350 U.S. 318 


NO. 150.  ARGUED JANUARY 19, 1956 - DECIDED FEBRUARY 27, 1956 - 220 F.2D
242, REVERSED. 


PETITIONER, AN INDEPENDENT CONTRACTOR IN THE BUSINESS OF UNLOADING
GASOLINE, WAS INSTRUCTED BY THE CONSIGNEE TO UNLOAD A TANK CAR OF
GASOLINE WHICH HAD BEEN HAULED BY RESPONDENT RAILROAD AND WHICH WAS
LOCATED ON A SIDING IN ITS FREIGHT YARDS.  WHILE PETITIONER WAS
STANDING ON A BOARD ATTACHED TO THE CAR NEAR THE DOME, IN ORDER TO
UNLOAD THE CAR BY OPENING A VALVE INSIDE THE DOME, THE BOARD BROKE AND
PETITIONER FELL, SUSTAINING INJURIES.  THE BOARD, WHICH WAS DEFECTIVE,
WAS PERMANENTLY FASTENED TO THE CAR NEAR THE DOME AND HAD BEEN PLACED
THERE FOR THE PURPOSE FOR WHICH PETITIONER WAS USING IT.  HELD:  THE
BOARD WAS A SAFETY APPLIANCE WITHIN THE MEANING OF SECS. 2 AND 3 OF THE
SAFETY APPLIANCE ACT OF 1910, AND THE RAILROAD WAS ABSOLUTELY LIABLE
FOR DAMAGES RESULTING FROM PETITIONER'S INJURIES.  PP. 319-325. 

(A)  THE BOARD HERE INVOLVED CAME WITHIN THE MEANING OF THE TERM
"RUNNING BOARDS" AS USED IN SEC. 2 OF THE ACT, WHICH PROVIDES THAT "ALL
CARS REQUIRING  ...  SECURE RUNNING BOARDS SHALL BE EQUIPPED WITH SUCH
...  RUNNING BOARDS."  P. 321. 

(B)  THE FACT THAT THE INTERSTATE COMMERCE COMMISSION IN ITS 1911
REGULATIONS UNDER SEC. 3 HAS NOT SPECIFIED UNIFORM STANDARDS FOR SUCH
RUNNING BOARDS IS NOT A BINDING ADMINISTRATIVE DETERMINATION THAT THEY
ARE NOT "RUNNING BOARDS" FOR THE PURPOSES OF SEC. 2.  PP. 321-322. 

(C)  FAILURE OF THE COMMISSION TO SPECIFY UNIFORM STANDARDS FOR SUCH
RUNNING BOARDS UNDER SEC. 3 NEED NOT MEAN THAT THE TANK CAR WAS NOT A
CAR "REQUIRING" SUCH A RUNNING BOARD WITHIN THE MEANING OF SEC. 2.  PP.
322-323. 

(D) IF SUCH A RUNNING BOARD IS PROVIDED BY A RAILROAD OR THE MAKERS
OF THE CAR AND USED BY THE RAILROAD AS AN APPLIANCE NECESSARY FOR THE
USE OF THE CAR, IT MUST BE A SAFE BOARD AS REQUIRED BY SEC. 2.  PP. 323
324. 

(E)  SECTION 2 IS NOT LIMITED TO SUCH RUNNING BOARDS AS ARE REQUIRED
ONLY IN THE MOVEMENT OF THE TRAIN.  PP. 324-325. 

(F)  THERE IS NO MERIT IN THE RAILROAD'S CONTENTION THAT, SINCE
PETITIONER IS NOT ONE OF ITS EMPLOYEES, NO DUTY IS OWED HIM UNDER SEC.
2 OF THE ACT.  P. 325. 

SHIELDS V. ATLANTIC COAST LINE RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AN INDEPENDENT CONTRACTOR IN THE BUSINESS OF UNLOADING
GASOLINE, WAS INSTRUCTED BY THE CONSIGNEE TO UNLOAD A TANK CAR OF
GASOLINE WHICH HAD BEEN HAULED BY RESPONDENT ATLANTIC COAST LINE AND
WHICH WAS LOCATED AT THE TIME ON A SIDING IN RESPONDENT'S FREIGHT
YARDS.  IN ORDER TO RELEASE THE GASOLINE THROUGH A HOSE ATTACHED TO THE
BOTTOM OF THE CAR, IT WAS NECESSARY TO GO TO THE DOME ON TOP OF THE
CAR, REMOVE THE DOME CAP, AND OPEN A VALVE INSIDE THE DOME.  WHILE
PETITIONER AND HIS HELPER WERE ENGAGED IN OPENING THE VALVE, THE BOARD
ON WHICH THEY WERE STANDING BROKE AND PETITIONER FELL, SUSTAINING
INJURIES.  THERE IS NO DISPUTE THAT THE BOARD WAS DEFECTIVE.  IT WAS A
WOODEN BOARD OVER SEVEN FEET LONG ATTACHED TO THE SIDE OF THE TANK NEAR
THE TOP JUST BELOW THE DOME BY MEANS OF TWO TRIANGULAR STEEL BRACES
EXTENDING FROM THE SIDE OF THE TANK AT EITHER END OF THE BOARD. 

THE QUESTION PRESENTED HERE IS WHETHER THIS DEVICE, WHICH FOR
CONVENIENCE WE SHALL CALL A DOME RUNNING BOARD, IS A SAFETY APPLIANCE
WITHIN THE MEANING OF SECS. 2 AND 3 OF THE SAFETY APPLIANCE ACT OF
1910.  ACT OF APRIL 14, 1910, C. 160, SECS. 2 AND 3, 36 STAT. 298, 45
U.S.C. SECS. 11 AND 12. 

PETITIONER BROUGHT SUIT IN THE DISTRICT COURT, ALLEGING IN ONE COUNT
OF HIS AMENDED COMPLAINT ABSOLUTE LIABILITY FOR A VIOLATION OF THE ACT
AND IN A SECOND COUNT COMMON-LAW NEGLIGENCE.  THE JURY RETURNED A
GENERAL VERDICT IN HIS FAVOR.  THE COURT OF APPEALS REVERSED AND
REMANDED FOR A NEW TRIAL ON THE NEGLIGENCE COUNT ALONE, HOLDING THAT
THE TRIAL COURT ERRED IN INSTRUCTING THAT THE DOME RUNNING BOARD WAS A
SAFETY APPLIANCE.  220 F.2D 242.  (FN1)  WE GRANTED CERTIORARI BECAUSE
OF THE IMPORTANCE OF THE QUESTIONS RAISED AS TO THE PROPER
INTERPRETATION OF THE SAFETY APPLIANCE ACT.  350 U.S. 819. 


"  ...  ALL CARS REQUIRING SECURE LADDERS AND SECURE RUNNING BOARDS
SHALL BE EQUIPPED WITH SUCH LADDERS AND RUNNING BOARDS  ...  ." 


"THAT WITHIN SIX MONTHS FROM PASSAGE OF THIS ACT THE INTERSTATE
COMMERCE COMMISSION, AFTER HEARING, SHALL DESIGNATE THE NUMBER,
DIMENSIONS, LOCATION, AND MANNER OF APPLICATION OF THE APPLIANCES
PROVIDED FOR BY SECTION TWO  ...  AND THEREAFTER SAID NUMBER, LOCATION,
DIMENSIONS, AND MANNER OF APPLICATION AS DESIGNATED BY SAID COMMISSION
SHALL REMAIN AS THE STANDARDS OF EQUIPMENT TO BE USED ON ALL CARS
SUBJECT TO THE PROVISIONS OF THIS ACT, UNLESS CHANGED BY AN ORDER OF
SAID INTERSTATE COMMERCE COMMISSION  ...  AND FAILURE TO COMPLY WITH
ANY SUCH REQUIREMENT OF THE INTERSTATE COMMERCE COMMISSION SHALL BE
SUBJECT TO A LIKE PENALTY AS FAILURE TO COMPLY WITH ANY REQUIREMENT OF
THIS ACT  ... ."  (FN2) 

UNDER THE AUTHORITY OF SEC. 3, THE COMMISSION IN 1911 PROMULGATED
REGULATIONS STILL IN FORCE PROVIDING IN DETAIL FOR ONE RUNNING BOARD
RUNNING AROUND THE PERIMETER, OR AT LEAST THE FULL LENGTH OF THE SIDES,
OF TANK CARS.  (FN3)  SUCH A BOARD ENABLES A TRAINMAN TO WALK THE
LENGTH OF A TANK CAR BETWEEN CARS ADJOINING IT ON EITHER END.  THE
REGULATIONS MAKE NO MENTION WHATEVER BY ANY NAME OF DOME RUNNING
BOARDS.  PETITIONER NEVERTHELESS CONTENDS THAT THE DOME RUNNING BOARD
IS A REQUIRED RUNNING BOARD AFFORDING HIM PROTECTION UNDER SEC. 2 

THE OBVIOUS PURPOSE OF A DOME RUNNING BOARD IS TO PROVIDE A SECURE
FLOORING FOR THOSE WHO MUST PERFORM OPERATIONS IN CONNECTION WITH THE
TANK CAR DOME.  CLEARLY, THE DOME RUNNING BOARD HAS MAJOR IMPORTANCE IN
LOADING AND UNLOADING OPERATIONS.  BUT A RAILROAD MAN OF OVER TWENTY
FIVE YEARS' EXPERIENCE TESTIFIED THAT IT ALSO MAY BE USED TO STAND ON
IN ORDER TO PASS HAND SIGNALS OR REPAIR MINOR TROUBLES OCCURRING WHILE
THE TRAIN IS EN ROUTE.  THE DOME RUNNING BOARD IS AN INTEGRATED PART OF
THE EXTERIOR EQUIPMENT OF A TANK CAR; (FN4) IT FUNCTIONS AS A
PERMANENTLY ATTACHED OUTSIDE "FLOOR" NEAR THE DOME OF THE CAR.  THE
TESTIMONY SHOWED THAT RAILROAD MEN, INCLUDING RESPONDENT'S EMPLOYEES,
OFTEN REFER TO THE DOME RUNNING BOARD AS A RUNNING BOARD.  WE HOLD THAT
IT COMES WITHIN THE MEANING OF THE TERM "RUNNING BOARDS" AS USED IN
SEC. 2. 

THE FACT THAT THE COMMISSION IN ITS 1911 REGULATIONS UNDER SEC. 3 HAS
NOT SPECIFIED UNIFORM STANDARDS FOR DOME RUNNING BOARDS IS NOT A
BINDING ADMINISTRATIVE DETERMINATION THAT THEY ARE NOT RUNNING BOARDS
FOR THE PURPOSES OF SEC. 2.  THE REASON FOR THE OMISSION IS APPARENTLY
THE COMMISSION'S VIEW THAT ONLY APPLIANCES AFFORDING SAFETY WHILE THE
TRAIN IS MOVING NEED BE STANDARDIZED.  BUT THERE IS NO SHOWING THAT THE
REGULATIONS PURPORT TO EXHAUST BY IMPLICATION EACH CATEGORY OF
STATUTORY APPLIANCES LISED IN SEC. 2.  OMISSION OF DOME RUNNING BOARDS
OF ITSELF SHOWS NO MORE THAN THAT THE COMMISSION HAS NOT STANDARDIZED
ALL POSSIBLE RUNNING BOARDS WITHIN SEC. 2.  DAVIS V. MANRY, 266 U.S.
401, IS CONSISTENT WITH OUR VIEW.  THERE THE COURT ITSELF INTERPRETED
THE LANGUAGE IN SEC. 2 REQUIRING GRAB IRONS "ON THEIR ROOFS" OF "CARS
HAVING LADDERS" TO APPLY ONLY TO CARS HAVING ROOFS.  IT THEN POINTED TO
THE COMMISSION'S FAILURE TO STANDARDIZE A GRAB IRON OVER A STANDARDIZED
LADDER ON A TENDER WITHOUT A ROOF ONLY AS A SUPPORTING "PRACTICAL
CONSTRUCTION" OF THE SECTION.  MOREOVER, THE COMMISSION IN THAT CASE,
HAVING STANDARDIZED THE LADDER, HAD NO ALTERNATIVE BUT TO INTERPRET THE
STATUTORY WORD "ROOFS" BY EITHER STANDARDIZING A GRAB IRON OR NOT
STANDARDIZING IT.  HERE NO SUCH PRACTICAL CONSTRUCTION IS IMPLIED BY
THE FAILURE TO STANDARDIZE. 

EVEN IF THE DOME RUNNING BOARD BE PROPERLY CHARACTERIZED AS A RUNNING
BOARD, RESPONDENT CONTENDS THAT, SINCE SEC. 2 REFERS TO "CARS REQUIRING
...  SECURE RUNNING BOARDS," THE COMMISSION'S FAILURE TO STANDARDIZE
DOME RUNNING BOARDS UNDER SEC. 3 CONSTITUTES AN ADMINISTRATIVE
DETERMINATION THAT THEY ARE NOT REQUIRED WITHIN THE MEANING OF SEC. 2. 
THE PURPOSE OF SEC. 3 WAS TO PROVIDE UNIFORMITY IN THE LOCATION AND
CHARACTERISTICS OF THOSE APPLIANCES UPON WHICH RAILROAD MEN, WORKING
"ALWAYS IN HASTE, AND OFTEN IN DARKNESS AND STORM," MUST
"INSTINCTIVELY" RELY IN THE HAZARDS OF THEIR EMPLOYMENT.  ILLINOIS
CENTRAL R. CO. V. WILLIAMS, 242 U.S. 462, 466.  (FN5)  EFFECTUATION OF
SUCH A PURPOSE WOULD REQUIRE STANDARDIZATION OF RUNNING BOARDS WHICH
EXTEND THE LENGTH OF TRAIN CARS.  BUT CONSIDERATIONS OF ADMINISTRATIVE
EXPERTISE RELEVANT TO SEC. 3 ARE NOT EQUALLY APPLICABLE TO THE
EFFECTUATION OF THE PURPOSE OF SEC. 2.  THE PURPOSE OF THE LATTER
CARE TO PROVIDE" SAFETY APPLIANCES ON CARS "REQUIRING (THEM) FOR THEIR
PROPER USE" INTO A "STATUTORY, AN ABSOLUTE AND IMPERATIVE DUTY, OF
MAKING THEM 'SECURE.'"  ILLINOIS CENTRAL R. CO. V. WILLIAMS, SUPRA.
THE PURPOSE OF SEC. 3 IS TO STANDARDIZE THE APPLIANCES REQUIRED BY SEC.
2.  BUT IT DOES NOT FOLLOW THAT APPLIANCES NECESSARY AND FURNISHED FOR
THE SAFE USE OF THE CAR, ALTHOUGH NOT STANDARDIZED UNDER SEC. 3, ARE
NOT WITHIN THE SWEEP OF SEC. 2.  CLEARLY, THOSE WHO WORK ON TRAIN CARS
MAY NECESSARILY HAVE TO RELY ON THE SECURITY OF A DOME RUNNING BOARD,
ALTHOUGH THE PURPOSES OF THAT APPLIANCE MAY NOT REQUIRE ANY
UNHESITATING RELIANCE ON ITS UNIFORM CHARACTERISTICS. 

IN THE WILLIAMS CASE, SUPRA, THIS COURT HELD THAT THE COMMISSION'S
STATUTORY POWER TO POSTPONE THE EFFECTIVE DATE OF ITS STANDARDIZATION
REGULATIONS UNDER SEC. 3 DID NOT SUSPEND THE RAILROAD'S DUTY UNDER SEC.
2 TO MAKE APPLIANCES SECURE.  THERE WAS NO QUESTION THAT THE APPLIANCE
IN WILLIAMS WAS REQUIRED, BUT THE TEACHING OF THE CASE IS THAT
COMMISSION ACTION UNDER SEC. 3 DOES NOT EXHAUST THE COMMANDS OF SEC.
2.  SEE ALSO SOUTHERN PAC. CO. V. CARSON, 169 F.2D 734, HOLDING A
RAILROAD LIABLE UNDER SEC. 2 FOR DEFECTS IN AN INDEPENDENT WOODEN CLUB
USED TO HELP TURN A BRAKE WHEEL WHERE THE WHEEL ITSELF COMPLIED WITH
THE COMMISSION'S REGULATIONS, WHICH MADE NO MENTION OF THE CLUB.  WE
CONCLUDE THAT FAILURE OF THE COMMISSION TO STANDARDIZE THE DOME RUNNING
BOARD NEED NOT MEAN THAT IT WAS NOT A REQUIRED RUNNING BOARD UNDER SEC.
2.  TO HOLD OTHERWISE WOULD RELIEVE RAILROADS FROM THE ABSOLUTE DUTY
UNDER SEC. 2 TO MAKE SAFETY APPLIANCES SECURE WHENEVER NEW APPLIANCES
ARE ADOPTED WHICH HAVE NOT YET BEEN STANDARDIZED BY THE COMMISSION. 

BOTH THE RESPONDENT AND THE MANUFACTURER OF THE TANK CAR CONSIDERED
THAT THE DOME RUNNING BOARD WAS REQUIRED FOR THE PROPER USE OF THE
CAR.  THE RAILROAD INDUSTRY ITSELF HAS RECOGNIZED THAT TANK CARS
REQUIRE SECURE DOME RUNNING BOARDS.  THE ASSOCIATION OF AMERICAN
RAILROADS SAFETY APPLIANCE STANDARDS, LARGELY IDENTICAL TO THE
INTERSTATE COMMERCE COMMISSION REGULATIONS, CONTAIN DETAILED UNIFORM
SPECIFICATIONS FOR DOME RUNNING BOARDS, (FN6) AND COMPLIANCE WITH THOSE
SAFETY STANDARDS IS REQUIRED FOR INTERCHANGE OF CARS BETWEEN LINES. 
(FN7)  PETITIONER USED THE DOME RUNNING BOARD, NOT SIMPLY BECAUSE IT
HAPPENED TO BE THERE, BUT ALSO BECAUSE IT HAD TO BE THERE FOR HIM TO
PERFORM HIS DUTIES SAFELY, AND PERFORMANCE OF HIS DUTIES WAS ESSENTIAL
TO THE OPERATION OF THE TANK CAR.  AT BEST, APPLIANCES STANDARDIZED IN
COMMISSION REGULATIONS REPRESENT THE MINIMUM OF SAFETY EQUIPMENT, AND
THERE IS NO PROHIBITION OF ADDITIONAL SAFETY APPLIANCES.  IF A DOME
RUNNING BOARD IS PROVIDED BY THE RAILROAD OR THE MAKERS OF THE CAR AND
USED BY THE RAILROAD AS AN APPLIANCE NECESSARY FOR THE USE OF THE CAR,
IT MUST BE A SAFE BOARD AS REQUIRED BY SEC. 2.  CF. TEXAS & PACIFIC R.
CO. V. RIGSBY, 241 U.S. 33, 37. 

THE COMMISSION, IN A BRIEF FILED HERE, CONTENDS THAT ONLY APPLIANCES
DESIGNED TO INSURE SAFETY WHILE THE TRAIN IS IN MOVEMENT ARE WITHIN
SEC. 2, AND, THEREFORE, A DOME RUNNING BOARD CANNOT BE A STATUTORY
RUNNING BOARD.  NO CASE IS CITED TO SUPPORT THIS CONSTRUCTION.  NOTHING
IN THE LANGUAGE OF SEC. 2 ITSELF OR IN ITS LEGISLATIVE HISTORY
INDICATES THAT IT SHOULD BE READ SO NARROWLY.  WHETHER OR NOT AN
APPLIANCE IS DESIGNED TO AFFORD PROTECTION WHILE THE TRAIN IS MOVING
MAY PROVIDE THE COMMISSION WITH AN APPROPRIATE GUIDE FOR DECIDING WHICH
APPLIANCES SHOULD BE STANDARDIZED UNDER SEC. 3.  BUT THERE IS NO REASON
TO IMPORT SUCH A DISTINCTION INTO SEC. 2 IN ORDER TO DENY THE HUMANE
BENEFITS OF THE ACT TO THOSE WHO PERFORM DANGEROUS WORK ON TRAIN CARS
THAT ARE NOT MOVING.  SECTION 2 IS NOT LIMITED TO SUCH RUNNING BOARDS
AS ARE REQUIRED ONLY IN THE MOVEMENT OF THE TRAIN.  THE DOME RUNNING
BOARD HERE WAS REQUIRED FOR THE USE OF THE CAR.  SECTION 2 REQUIRED IT
TO BE SAFE, ALTHOUGH REGULATIONS PURSUANT TO SEC. 3 HAD NOT
STANDARDIZED IT. 

THERE IS NO MERIT IN RESPONDENT'S CONTENTION THAT, SINCE PETITIONER
IS NOT ONE OF ITS EMPLOYEES, NO DUTY IS OWED HIM UNDER SEC. 2 OF THE
ACT.  HAVING BEEN UPON THE DOME RUNNING BOARD FOR THE PURPOSE OF
UNLOADING THE CAR, HE WAS A MEMBER OF ONE CLASS FOR WHOSE BENEFIT THAT
DEVICE IS A SAFETY APPLIANCE UNDER THE STATUTE.  AS TO HIM, THE
VIOLATION OF THE STATUTE MUST THEREFORE RESULT IN ABSOLUTE LIABILITY. 
CORAY V. SOUTHERN PACIFIC CO., 335 U.S. 520; BRADY V. TERMINAL RAILROAD
ASSN., 303 U.S. 10; FAIRPORT, P.&E.R. CO. V. MEREDITH, 292 U.S. 589;
LOUISVILLE & N.R. CO. V. LAYTON, 243 U.S. 617.  THE JUDGMENT BELOW MUST
BE REVERSED AND THE JUDGMENT OF THE DISTRICT COURT REINSTATED. 
REVERSED. 

FN1  THE ACTION AGAINST SOUTHERN RAILWAY CO., A CO-DEFENDANT, AS
DELIVERING CARRIER OF THE CAR WAS DISMISSED. 

FN2  SECTION 3 AS IT APPEARS IN THE U.S.C. OMITS, PRESUMABLY AS
EXECUTED, THE LANGUAGE CONTAINING THE STATUTORY COMMAND TO THE
COMMISSION TO MAKE ITS ORIGINAL STANDARDIZATION REGULATIONS.   45
U.S.C. SEC. 12. 

FN3  49 CFR SECS. 131.8(B), 131.9(C).  49 CFR SEC. 131.7 COVERS "TANK
CARS WITH SIDE PLATFORMS" AND CONTAINS NO PROVISION FOR "RUNNING
BOARDS."  THE CAR IN QUESTION HERE DOES NOT COME WITHIN SEC. 131.7. 

FN4  SEE CAR BUILDERS' CYCLOPEDIA (18TH ED. 1949-1951), 249-254,
ESPECIALLY THE DIAGRAMS, AT 252-253, OF A TANK CAR WITH A DOME RUNNING
BOARD, THERE CALLED A "DOME PLATFORM," SIMILAR TO THE PRESENT CAR. 

FN5  SEE ALSO H.R. REP. NO. 37, 61ST CONG., 2D SESS.; S. REP. NO.
250, 61ST CONG., 2D SESS. 3. 

FN6  A.A.R. SAFETY APPLIANCES FOR TANK CARS BUILT AFTER MAY 1, 1917,
CAR BUILDERS' CYCLOPEDIA (19TH ED. 1953), 938, 939-942. 

FN7  A.A.R. CODE OF RULES FOR THE INTERCHANGE OF TRAFFIC (1952 ED.),
RULES 3(S)(1), 3(R)(7). 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

THE ULTIMATE QUESTION PRESENTED BY THIS CASE IS WHETHER THE DEFECTIVE
DOME PLATFORM (FN1) WHICH CAUSED THE PETITIONER'S INJURY IS A SAFETY
APPLIANCE WITHIN THE MEANING OF SEC. 2 OF THE ACT OF APRIL 14, 1910, C.
160, 36 STAT. 298, 45 U.S.C. SEC. 11.  THE COURT HOLDS THAT THE DOME
PLATFORM IS A "RUNNING BOARD" WITHIN THE MEANING OF SEC. 2, AND THAT
THE TANK CAR INVOLVED HERE WAS A CAR "REQUIRING" THE PLATFORM. 

FIRST, IT CAN HARDLY BE SAID THAT THE DOME PLATFORM IS A RUNNING
BOARD AS THAT TERM IS USED IN SEC. 2 OF THE ACT.  IT APPEARS THAT EVERY
DEVICE REGULATED BY THE SAFETY APPLIANCE ACT IS PRINCIPALLY DESIGNED
FOR USE BY, AND FOR THE PROTECTION OF, TRAINMEN WHILE RAILROAD CARS ARE
IN MOTION.  CERTAINLY THERE IS NO INDICATION THAT THIS LEGISLATION WAS
MEANT TO REGULATE ALL DEVICES AND APPLIANCES EMPLOYED ON RAILROAD CARS;
AND THERE IS NOTHING IN THE LEGISLATIVE HISTORY UPON WHICH TO BASE A
BELIEF THAT EQUIPMENT DESIGNED PRINCIPALLY FOR LOADING AND UNLOADING
CARS, SUCH AS A DOME PLATFORM, WAS TO BE COVERED BY THE STATUTE. 
MOREOVER, WHILE A DOME PLATFORM MIGHT BE LOOSELY SPOKEN OF AS A RUNNING
BOARD, IT DOES NOT APPEAR THAT IT FALLS WITHIN THE TECHNICAL DEFINITION
OF THAT TERM AS USED IN THE TRADE.  A RUNNING BOARD IS A "PLANE
SURFACE, MADE OF BOARDS OR SPECIAL METAL STRUCTURE, FOR TRINMEN TO WALK
OR RUN ON."  (FN2)  THE PLATFORM INVOLVED HERE IS USED PRINCIPALLY TO
STAND ON TO GIVE CONVENIENT ACCESS TO THE TOP OF THE DOME. 

HOWEVER, THE PRINCIPAL GROUND UPON WHICH I DISSENT IS ASIDE FROM THE
QUESTION WHETHER A DOME PLATFORM IS A "RUNNING BOARD" UNDER SEC. 2. 
ASSUMING THAT IT IS, IT DOES NOT FOLLOW THAT THE RESPONDENT VIOLATED
THE ACT.  PURSUANT TO SUCH AN ASSUMPTION, I WILL READ SEC. 2 OF THE
STATUTE AS THOUGH THE WORDS "DOME PLATFORMS" APPEAR IN THE PLACE OF
"RUNNING BOARDS."  BUT EVEN THEN NOT EVERY DEFECTIVE DOME PLATFORM IS
PROHIBITED BY THE STATUTE.  SO FAR AS PERTINENT HERE, SEC. 2 PROVIDES
THAT "ALL CARS REQUIRING  ...  SECURE RUNNING BOARDS (VIZ., DOME
PLATFORMS) SHALL BE EQUIPPED WITH SUCH  ...  ."  THE CONGRESSIONAL
MANDATE THEN IS MERELY THAT RAILROAD CARRIERS SHALL PROVIDE SECURE DOME
PLATFORMS ON CARS "REQUIRING" THEM.  NO OTHER DOME PLATFORMS WOULD BE
SAFETY APPLIANCES UNDER THIS ACT.  THEREFORE, THE INQUIRY HERE NARROWS
TO WHETHER THIS TANK CAR "REQUIRED" A DOME PLATFORM. 

CARS REQUIRE RUNNING BOARDS (DOME PLATFORMS), AND THUS DOES NOT SPECIFY
WHICH DOME PLATFORMS, IF ANY, ARE SAFETY APPLIANCES.  (FN3)  HOWEVER,
SEC. 3 OF THE ACT PROVIDES THAT WITHIN SIX MONTHS "THE INTERSTATE
COMMERCE COMMISSION, AFTER HEARING, SHALL DESIGNATE THE NUMBER,
DIMENSIONS, LOCATION, AND MANNER OF APPLICATION OF THE APPLIANCES
PROVIDED FOR BY SECTION TWO OF THIS ACT  ...  " (FN4) AND THAT THOSE
DESIGNATIONS ARE TO REMAIN AS RAILROAD EQUIPMENT STANDARDS UNLESS
CHANGED BY THE COMMISSION.  (FN5) IT SEEMS INESCAPABLE, JUST AS A
MATTER OF LOGIC, THAT SINCE SEC. 3 GAVE TO THE COMMISSION THE DUTY TO
DETERMINE, AMONG OTHER THINGS, HOW MANY OF THE "REQUIRED" SEC. 2
APPLIANCES SHALL BE USED AND WHERE THEY SHALL BE PLACED, THE COMMISSION
WAS THEREBY MEANT TO DETERMINE WHICH ARE CARS "REQUIRING" RUNNING
BOARDS (DOME PLATFORMS), AND THEREFORE WHICH DOME PLATFORMS, IF ANY,
ARE SAFETY APPLIANCES.  MOREOVER, IF IT BE ASSUMED THAT THE STATUTE IS
AMBIGUOUS IN THIS MATTER, THE OTHER ALTERNATIVE IS TO LEAVE TO THE
COURTS THE DETERMINATION OF WHICH TYPES OF CARS REQUIRE DOME PLATFORMS,
OR ANY OTHER SEC. 2 EQUIPMENT EXCEPT SILL STEPS AND HANDBRAKES, TO BE
REVEALED AD HOC.  THE CREATION OF SUCH UNCERTAINTIES IS NOT TO BE
FAVORED.  BUT IN VIEW OF THE EXISTENCE OF THE INTERSTATE COMMERCE
COMMISSION, AN ADMINISTRATIVE EXPERT IN THE SAFETY REQUIREMENTS OF THE
RAILROAD INDUSTRY, COUPLED WITH THE EXPLICIT DELEGATION TO THE
COMMISSION BY SEC. 3 OF THE AUTHORITY TO DESIGNATE THE NUMBER AND
LOCATION OF THE APPLIANCES REQUIRED BY SEC. 2, IT WOULD SEEM DIFFICULT
TO CONCLUDE ANYTHING BUT THAT CONGRESS MADE RAILROADS RESPONSIBLE AS
INSURERS ONLY FOR SUCH RUNNING BOARDS AS THE COMMISSION, NOT THE
COURTS, MIGHT DETERMINE ARE REQUIRED.  THIS PURPOSE OF CONGRESS IS EVEN
MORE CLEAR FROM THE WORDS OF THE ACT ITSELF THAN IT IS FROM THE CODE

THIS LEADS ME TO EXAMINE THE REGULATIONS PROMULGATED BY THE
INTERSTATE COMMERCE COMMISSION PURSUANT TO SEC. 3 OF THE ACT.  AS
PREVIOUSLY NOTED, THAT SECTION REQUIRED THE COMMISSION TO PRESCRIBE THE
UNIFORM STANDARDS APPLICABLE TO THE SAFETY APPLIANCES SET FORTH IN SEC.
2.  NOWHERE IN THE REGULATIONS (49 CFR SEC. 131.1 ET SEQ.) DOES THE
COMMISSION PRESCRIBE DOME PLATFORM EQUIPMENT FOR TANK CARS.  (FN6)  IT
FOLLOWS THAT TANK CARS ARE NOT CARS "REQUIRING" DOME PLATFORMS. 
THEREFORE, THE ABSENCE OF SUCH EQUIPMENT ON TANK CARS, OR THE PRESENCE
OF SUCH EQUIPMENT IN A DEFECTIVE CONDITION, SHOULD NOT CONSTITUTE A
VIOLATION OF THE ACT.  OF COURSE, THIS WOULD NOT MEAN THAT RAILROADS
COULD WITH IMPUNITY EMPLOY INSECURE DOME PLATFORMS ON THEIR TANK CARS,
OR FOR THAT MATTER, ANY DEFECTIVE EQUIPMENT NOT COVERED BY THE SAFETY
APPLIANCE ACT.  THAT ACT DOES NOT SUPPLANT THE BASIC LAW OF NEGLIGENCE,
AND THIS PETITIONER HAS PRESERVED HIS RIGHT OF RECOVERY FOR ANY
NEGLIGENCE. 

THE FACT THAT THE ASSOCIATION OF AMERICAN RAILROADS PRESCRIBES DOME
PLATFORMS FOR TANK CARS IN ITS SAFETY APPLIANCE STANDARDS (FN7) DOES
NOT SUGGEST A DIFFERENT RESULT.  THE ASSOCIATION IS NOT ENTRUSTED WITH
THE ENFORCEMENT OF THIS STATUTE OR WITH ITS REACH; AND WHILE IT IS
COMMENDABLE THAT IT HAS ADOPTED STANDARDS IN THIS INSTANCE WHICH
REQUIRE EQUIPMENT BEYOND THAT WHICH MAY BE COVERED BY THE SAFETY
APPLIANCE ACT, IF I AM CORRECT AS TO THE DUTIES OF THE COMMISSION, THE
ACTION OF THE ASSOCIATION CANNOT SUPPLANT THE DETERMINATIONS OF THE
COMMISSION. 

THIS COURT HAS NEVER BEFORE HELD THAT RAILROAD CAR EQUIPMENT NOT
SPECIFICALLY REQUIRED BY STATUTE OR REGULATION CAN BE TREATED AS
GOVERNED BY THE SAFETY APPLIANCE ACT.  THAT ISSUE HAS BEEN RULED UPON
IN ACCORDANCE WITH THIS DISSENT IN CENTRAL VERMONT R. CO. V. PERRY, 10
F.2D 132.  THERE THE TRIAL COURT HAD INSTRUCTED THE JURY AFFIRMATIVELY
ON THE APPLICATION OF THE SAFETY APPLIANCE ACT WITH RESPECT TO THE
ABSENCE OF A FOOTBOARD ACROSS THE REAR OF A TENDER.  WITHOUT DECIDING
WHETHER THE FOOTBOARD WAS A RUNNING BOARD WITHIN THE MEANING OF SEC. 2
OF THE 1910 ACT, AND EVIDENTLY UPON THE ASSUMPTION THAT IT WAS, THE
COURT SAID: 

"AS THE SAFETY APPLIANCE ACT AND ITS SUPPLEMENTS DO NOT REQUIRE A
FOOTBOARD AT THE REAR END OF THE TENDER OF A SHIFTING ENGINE AND THE
REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION DO NOT REQUIRE ONE,
...  WE ARE OF THE OPINION THAT THE COURT ERRED IN ITS INSTRUCTION TO
THE JURY."  ID., AT 137. 

"THE POSITION HEREIN EXPRESSED IS NOT CONTRARY TO ILLINOIS CENTRAL R.
CO. V. WILLIAMS, 242 U.S. 462.  THAT CASE INVOLVED A DEFECTIVE HANDHOLD
AT THE TOP OF A LADDER ON A BOXCAR.  SECTION 2 OF THE ACT PROVIDES FOR
SECURE LADDERS ON ALL CARS "REQUIRING" THEM, AND, ON "ALL CARS HAVING
LADDERS," IT PROVIDES FOR SECURE HANDHOLDS AT THE TOP OF THE LADDERS. 
THE COURT COMMENTED THAT "A BOX CAR COULD NOT PROPERLY BE USED WITHOUT
A SECURE LADDER AND  ...  ALL CARS HAVING LADDERS MUST BE EQUIPPED WITH
SECURE HANDHOLDS  ...  ."  ID., AT 464.  BUT I DO NOT UNDERSTAND THIS
TO HAVE BEEN A HOLDING BY THE COURT THAT, APART FROM ANY INTERSTATE
COMMERCE COMMISSION DETERMINATION, BOXCARS REQUIRE SECURE LADDERS.  AT
MOST THE COMMENT WAS A DICTUM, SINCE IT WAS CLEARLY NOT NECESSARY TO
DECIDE WHETHER THE CAR INVOLVED REQUIRED A SECURE LADDER.  THE CAR HAD
A LADDER, AND ALL CARS "HAVING LADDERS SHALL ALSO BE EQUIPPED WITH
SECURE HAND HOLDS OR GRAB IRONS ON THEIR ROOFS  ...  ."  MOREOVER, AS
LATER APPEARS IN THAT CASE, THE COMMISSION HAD PREVIOUSLY ISSUED AN
ORDER DESIGNATING THE NUMBER, DIMENSIONS, LOCATION, AND MANNER OF
APPLICATION OF LADDERS ON BOXCARS.  WHILE THAT ORDER GRANTED AN
EXTENSION OF TIME OF FIVE YEARS WITHIN WHICH TO COMPLY WITH THE
STANDARDS THEREIN PRESCRIBED, IT NONETHELESS CONSTITUTED A COMMISSION
DETERMINATION THAT BOXCARS REQUIRE SECURE LADDERS WITHIN THE MEANING OF
SEC. 2.  FOR SIMILAR REASONS TEXAS & PACIFIC R. CO. V. RIGSBY, 241 U.S.
33, IS NOT CONTRARY TO THIS DISSENT.  SEE ATCHISON, T.&S.F.R. CO. V.
SCARLETT, 300 U.S. 471. 

FINALLY, CONTINUING TO ASSUME THAT A DOME PLATFORM IS A RUNNING BOARD
UNDER SEC. 2, AND NOW UPON THE FURTHER ASSUMPTION THAT THE COURTS WERE
MEANT TO DECIDE WHICH CARS REQUIRE THEM, A DISSENT IS STILL INDICATED. 
IN THESE CIRCUMSTANCES, CONSISTENT WITH THE NORMAL RULE, GREAT RESPECT
SHOULD BE GIVEN TO THE INTERPRETATION OF AN ACT BY THE ADMINISTRATIVE
AGENCY DESIGNATED TO ADMINISTER IT. (FN8)  AS HAS BEEN OBSERVED, THE
REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION PRESCRIBING THE
UNIFORM STANDARDS APPLICABLE TO SEC. 2 SAFETY APPLIANCES OMIT TO
MENTION DOME PLATFORM EQUIPMENT FOR TANK CARS.  THUS THE COMMISSION
DOES NOT UNDERSTAND DOME PLATFORMS TO BE "REQUIRED" FOR TANK CARS UNDER
SEC. 2.  IF IT HAD SO UNDERSTOOD, IT IS REASONABLE TO BELIEVE IT WOULD
HAVE PROVIDED STANDARDS FOR SUCH EQUIPMENT IN ITS REGULATIONS. 
MOREOVER, AT THE REQUEST OF THE COURT, THE COMMISSION ADVISED BY BRIEF
IN THIS CASE THAT THE DOME PLATFORM WAS NOT EVEN A RUNNING BOARD, MUCH
LESS A REQUIRED RUNNING BOARD.  FOLLOWING THIS COURT'S RULING IN DAVIS
V. MANRY, 266 U.S. 401, THIS "CONSTRUCTION BY THE COMMISSION - THE
TRIBUNAL TO WHICH THE APPLICATION OF SEC. 2 IS ENTRUSTED AND WHICH
WOULD BE SOLICITOUS TO ENFORCE IT - " SHOULD BE FOLLOWED.  ID., AT 404
405. 

FOR THESE REASONS THE JUDGMENT SHOULD BE AFFIRMED. 

FN1  THE DEVICE INVOLVED IN THIS CASE IS DENOMINATED A DOME PLATFORM
IN THE CAR BUILDERS' CYCLOPEDIA (18TH ED. 1949-1951) 253. 

FN2  CAR BUILDERS' CYCLOPEDIA (19TH ED. 1953) 51.  SUBSTANTIALLY THE
SAME DEFINITION OF THE TERM APPEARS IN EACH OF THE OTHER EIGHTEEN
EDITIONS OF THIS VOLUME, THE FIRST OF WHICH WAS PUBLISHED IN 1879 AS
"THE CAR-BUILDERS' DICTIONARY."  THAT EDITION WAS PUBLISHED SO AS TO
ALLEVIATE THE "INCONVENIENCE, CONFUSION, AND DELAY  ...  CAUSED  ...
BY WANT OF COMMON NAMES FOR THE DIFFERENT PARTS OF (RAILROAD) CARS." 
PREFACE, THE CAR-BUILDERS' DICTIONARY (1879).  SEE ALSO NOTE 1, SUPRA. 

FN3  SECTION 2 DOES, HOWEVER, SPECIFY WHICH CARS REQUIRE SILL STEPS
AND HANDBRAKES.  "ALL CARS MUST BE EQUIPPED WITH SECURE SILL STEPS AND
EFFICIENT HAND BRAKES  ...  ."  ASSUMING THAT "SILL STEPS" AND "HAND
BRAKES" INCLUDE ALL DEVICES FALLING WITHIN THOSE TERMS WHEN USED
GENERICALLY, IT WOULD SEEM THAT ALL SUCH DEVICES ARE SAFETY APPLIANCES
AND MUST MEET THE STATUTORY STANDARD OF "SECURE" OR "EFFICIENT."  CF.
SOUTHERN PAC. CO. V. CARSON, 169 F.2D 734. 

FN4  THE QUOTED PHRASE DOES NOT APPEAR IN 45 U.S.C. SEC. 12, THE CODE
OMITTED FROM THE CODE AS BEING FULLY EXECUTED AT THE TIME THE CODE WAS
COMPILED. 

FN5  THE ACT BECAME LAW ON APRIL 14, 1910.  THUS, THE COMMISSION HAD
UNTIL OCTOBER 13, 1910, WITHIN WHICH TO ADOPT ITS STANDARDIZING
REGULATIONS.  SUCH REGULATIONS WERE ADOPTED ON OCTOBER 13, 1910, BY
COMMISSION ORDER.  SUBSEQUENTLY, ON MARCH 13, 1911, THE COMMISSION
ADOPTED ANOTHER ORDER SUPERSEDING THE ORDER OF OCTOBER 13, 1910.  49
CFR SEC. 131.1 ET SEQ. HOWEVER, THE EFFECTIVE DATE OF THE MANDATE OF
SEC. 2 WAS, BY ITS TERMS, NOT UNTIL JULY 1, 1911, OVER THREE MONTHS
AFTER THE FINAL PROMULGATION OF THE COMMISSION REGULATIONS.  THERE WAS
THUS NO TIME LAG, EITHER ACTUAL OR CONTEMPLATED, BETWEEN THE EFFECTIVE
DATE OF SEC. 2 AND THE I.C.C. DETERMINATIONS. 

FN6  49 CFR SECS. 131.8(B) AND 131.9(C) ARE THE ONLY REGULATIONS
RELATING TO RUNNING BOARDS ON TANK CARS, AND IT IS CLEAR, AS WELL AS
CONCEDED, THAT THOSE SUBSECTIONS DO NOT REQUIRE A RUNNING BOARD OF ANY
SORT AT OR NEAR THE DOME OF THESE CARS. 

FN7  A.A.R. SAFETY APPLIANCES FOR TANK CARS BUILT AFTER MAY 1, 1917,
CAR BUILDERS' CYCLOPEDIA (19TH ED. 1953) 939-942; A.A.R. CODE OF RULES
FOR THE INTERCHANGE OF TRAFFIC (1952 ED.), RULES 3(S)(1), 3(R)(7). 

FN8  UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 549. 
..END :
























UNITED GAS PIPE LINE CO. V. MOBILE GAS SERVICE CORP. 350 U.S. 332 


NO. 17.  ARGUED NOVEMBER 7-8, 1955 - DECIDED FEBRUARY 27, 1956 - 215
F.2D 883, AFFIRMED. 


UNDER THE NATURAL GAS ACT, A REGULATED NATURAL GAS COMPANY FURNISHING
GAS TO A DISTRIBUTING COMPANY UNDER A LONG-TERM CONTRACT FILED WITH THE
FEDERAL POWER COMMISSION MAY NOT, WITHOUT THE CONSENT OF THE
DISTRIBUTING COMPANY, CHANGE THE RATE SPECIFIED IN THE CONTRACT SIMPLY
BY FILING A NEW RATE SCHEDULE WITH THE COMMISSION UNDER SEC. 4(D) OF
THE ACT.  PP. 333-347. 

(A)  UNLIKE THE INTERSTATE COMMERCE ACT, WHICH REQUIRES UNIFORM
RATES, THE NATURAL GAS ACT EXPRESSLY RECOGNIZES THAT RATES TO
PARTICULAR CUSTOMERS MAY BE SET INITIALLY BY INDIVIDUAL CONTRACTS FILED
WITH THE COMMISSION.  PP. 338-339. 

(B)  AUTHORITY FOR NATURAL GAS COMPANIES TO CHANGE THEIR CONTRACT
RATES UNILATERALLY IS NOT CONFERRED BY SEC. 4(D) OF THE ACT, WHICH
PROVIDES THAT "NO CHANGE SHALL BE MADE BY ANY NATURAL-GAS COMPANY IN
ANY SUCH FILED RATE  ...  OR CONTRACT  ...  EXCEPT AFTER THIRTY DAYS'
NOTICE TO THE COMMISSION," GIVEN BY FILING NEW SCHEDULES SHOWING THE
CHANGES AND THE TIME THEY ARE TO GO INTO EFFECT.  PP. 339-340. 

(C)  THE ACT NEITHER GRANTS NOR DEFINES THE INITIAL RATE-SETTING
POWERS OF NATURAL GAS COMPANIES; IT MERELY DEFINES THE REVIEW POWERS OF
THE COMMISSION AND IMPOSES SUCH DUTIES ON NATURAL GAS COMPANIES AS ARE
NECESSARY TO EFFECTUATE THOSE POWERS.  PP. 340-343. 

(D)  THERE IS NOTHING IN THE STRUCTURE OR PURPOSE OF THE ACT FROM
WHICH CAN BE INFERRED ANY RIGHT, NOT OTHERWISE POSSESSED AND NOWHERE
EXPRESSLY GIVEN BY THE ACT, OF NATURAL GAS COMPANIES UNILATERALLY TO
CHANGE THEIR CONTRACTS.  PP. 343-344. 

(E)  THE CONCLUSION HERE REACHED FULLY PROMOTES THE PURPOSES OF THE
ACT.  PP. 344-345. 

(F)  ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, AND MIDLAND
REALTY CO. V. KANSAS CITY POWER & LIGHT CO., 300 U.S. 109,
DISTINGUISHED.  PP. 345-346. 

(G)  THE NEW SCHEDULE FILED BY THE NATURAL GAS COMPANY IN THIS CASE
WAS A NULLITY INSOFAR AS IT PURPORTED TO CHANGE THE RATE SET BY ITS
CONTRACT, AND THE CONTRACT RATE REMAINED THE ONLY LAWFUL RATE.  P.
347. 

(H)  UNDER ITS GENERAL POWER TO ISSUE ORDERS "NECESSARY OR
APPROPRIATE TO CARRY OUT THE PROVISIONS OF THIS ACT," THE COMMISSION
HAD AUTHORITY TO REJECT THE UNAUTHORIZED FILING OF A NEW SCHEDULE OF
RATES BY THE NATURAL GAS COMPANY; AND THE COMMISSION'S FAILURE TO DO SO
AND ITS ORDER "PERMITTING" THE NEW RATES TO BECOME EFFECTIVE WERE IN
ERROR.  P. 347. 

(I)  ANY AMOUNTS PAID BY THE DISTRIBUTING COMPANY IN EXCESS OF THE
CONTRACT RATES WERE UNLAWFULLY COLLECTED, AND THE NATURAL GAS COMPANY
IS OBLIGATED TO MAKE RESTITUTION OF THE EXCESS PAYMENTS.  P. 347. 

UNITED GAS PIPE LINE CO. V. MOBILE GAS SERVICE CORP. ET AL. 

ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT.* 

*TOGETHER WITH NO. 31, FEDERAL POWER COMMISSION V. MOBILE GAS SERVICE
CORP., ALSO ON CERTIORARI TO THE SAME COURT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER UNDER THE NATURAL GAS
ACT, 52 STAT. 821, 15 U.S.C. SEC. 717 ET SEQ., A REGULATED NATURAL GAS
COMPANY FURNISHING GAS TO A DISTRIBUTING COMPANY UNDER A LONG-TERM
CONTRACT MAY, WITHOUT THE CONSENT OF THE DISTRIBUTING COMPANY, CHANGE
THE RATE SPECIFIED IN THE CONTRACT SIMPLY BY FILING A NEW RATE SCHEDULE
WITH THE FEDERAL POWER COMMISSION.  THE PERTINENT PROVISIONS OF THE ACT
ARE SET FORTH IN THE MARGIN.  (FN1) 

RESPONDENT MOBILE GAS SERVICE CORPORATION (MOBILE), A DISTRIBUTOR OF
NATURAL GAS TO DOMESTIC AND INDUSTRIAL USERS IN MOBILE, ALABAMA,
ACQUIRES ITS GAS FROM PETITIONER UNITED GAS PIPE LINE COMPANY (UNITED),
A "NATURAL-GAS COMPANY" SUBJECT TO REGULATION UNDER THE ACT.  IN 1946
THE IDEAL CEMENT COMPANY (IDEAL), PLANNING TO CONSTRUCT A CEMENT PLANT
IN THE CITY PROVIDED IT COULD BE ASSURED A SUPPLY OF GAS AT A
SUFFICIENTLY LOW RATE, OBTAINED FROM MOBILE AN AGREEMENT TO FURNISH GAS
FOR A 10-YEAR TERM AT 12 CENTS PER MCF (THOUSAND CUBIC FEET).  MOBILE,
IN TURN, BEFORE ENTERING INTO A CONTRACT WITH IDEAL, OBTAINED FROM
UNITED A 10-YEAR CONTRACT TO SUPPLY GAS FOR RESALE TO IDEAL AT THE
EQUIVALENT OF 10.7 CENTS PER MCF, A RATE SUBSTANTIALLY LOWER THAN THAT
FOR OTHER GAS FURNISHED BY UNITED.  THIS CONTRACT WAS FILED WITH THE
FEDERAL POWER COMMISSION AS AN AMENDMENT TO THE GENERAL SUPPLY
CONTRACTS BETWEEN MOBILE AND UNITED, AND, WITH THE APPROVAL OF THE
COMMISSION, BECAME A PART OF UNITED'S FILED SCHEDULES OF RATES AND
CONTRACTS. 

IN JUNE 1953 UNITED, WITHOUT THE CONSENT OF MOBILE, FILED NEW
SCHEDULES WITH THE COMMISSION WHICH PURPORTED TO INCREASE THE RATE ON
GAS FOR RESALE TO IDEAL TO 14.5 CENTS PER MCF, A RATE MORE CLOSELY
APPROXIMATING THAT FOR OTHER GAS FURNISHED TO MOBILE BY UNITED. 
CLAIMING THAT UNITED COULD NOT THUS UNILATERALLY CHANGE THE CONTRACT
RATE, MOBILE PETITIONED THE COMMISSION TO REJECT UNITED'S FILING.  THE
COMMISSION DENIED THE PETITION, HOLDING THAT UNDER SEC. 4(D) OF THE ACT
THE NEW RATE, BEING A NON-SUSPENDIBLE INDUSTRIAL RATE, AUTOMATICALLY
BECAME EFFECTIVE 30 DAYS AFTER FILING AND WOULD REMAIN IN EFFECT UNLESS
AND UNTIL THE COMMISSION SHOULD, AFTER INVESTIGATION UNDER SEC. 4(E),
DETERMINE THE NEW RATE TO BE UNLAWFUL.  MOBILE PAID THE NEW RATE UNTIL
APRIL 15, 1955, WHEN UNITED, WITH COMMISSION APPROVAL, ACCEPTED AN
ASSIGNMENT TO IT OF MOBILE'S CONTRACT WITH IDEAL.  (FN2)  THIS
ASSIGNMENT MADE THE PENDING INVESTIGATION INTO THE LAWFULNESS OF THE
NEW RATE MOOT, SINCE IN THE COMMISSION'S VIEW ITS DETERMINATION ON THAT
MATTER WOULD HAVE NO RETROACTIVE EFFECT.  THUS THE ONLY QUESTION BEFORE
US IS WHETHER UNITED PROPERLY COLLECTED FROM MOBILE THE DIFFERENCE
BETWEEN THE OLD 10.7-CENT RATE AND THE NEW 14.5-CENT RATE DURING THE
PERIOD FROM JULY 25, 1953 (WHEN THE NEW RATE PURPORTEDLY WENT INTO
EFFECT), TO APRIL 15, 1955 (WHEN UNITED TOOK OVER THE IDEAL CONTRACT) -
A SUM AGGREGATING APPROXIMATELY $240,000.  ON MOBILE'S PETITION FOR
REVIEW, THE COURT OF APPEALS FOR THE THIRD CIRCUIT (HASTIE, J.,
DISSENTING) REVERSED THE COMMISSION'S ORDER, DIRECTED IT TO REJECT
UNITED'S FILING OF THE NEW SCHEDULE INSOFAR AS IT PURPORTED TO INCREASE
THE RATE IN QUESTION, AND HELD MOBILE ENTITLED TO A RETURN OF THE
AMOUNTS PAID IN EXCESS OF THE CONTRACT RATE.  215 F.2D 883.  BOTH THE
COMMISSION AND UNITED, WHICH HAD INTERVENED IN THE COURT OF APPEALS,
PETITIONED FOR CERTIORARI, WHICH WE GRANTED BECAUSE OF THE IMPORTANCE
OF THIS QUESTION IN THE ADMINISTRATION OF THE NATURAL GAS ACT.  348
U.S. 950.  FOR THE REASONS DISCUSSED BELOW, WE HOLD THAT THE NATURAL
GAS ACT DOES NOT GIVE NATURAL GAS COMPANIES THE RIGHT TO CHANGE THEIR
RATE CONTRACTS BY THEIR OWN UNILATERAL ACTION. 

THE QUESTION PRESENTED IS SOLELY ONE OF THE PROPER INTERPRETATION OF
THE NATURAL GAS ACT, THERE BEING NO CLAIM THAT THE STATUTE, IF
INTERPRETED TO PERMIT A NATURAL GAS COMPANY UNILATERALLY TO CHANGE ITS
CONTRACTS, WOULD BE UNCONSTITUTIONAL.  CF. MIDLAND REALTY CO. V. KANSAS
CITY P.&L. CO., 300 U.S. 109.  THE ACT (FN3) REQUIRES NATURAL GAS
COMPANIES TO FILE ALL RATES AND CONTRACTS WITH THE COMMISSION (SEC.
4(C)) AND AUTHORIZES THE COMMISSION TO MODIFY ANY RATE OR CONTRACT
WHICH IT DETERMINES TO BE "UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY,
OR PREFERENTIAL" (SEC. 5(A)).  CHANGES IN PREVIOUSLY FILED RATES OR
CONTRACTS MUST BE FILED WITH THE COMMISSION AT LEAST 30 DAYS BEFORE
THEY ARE TO GO INTO EFFECT (SEC. 4(D)), AND, EXCEPT IN THE CASE OF
INDUSTRIAL RATES, THE COMMISSION MAY SUSPEND THE OPERATION OF THE NEW
RATE PENDING A DETERMINATION OF ITS REASONABLENESS (SEC. 4(E)).  IF A
DECISION HAS NOT BEEN REACHED BEFORE THE PERIOD OF SUSPENSION EXPIRES,
A MAXIMUM OF FIVE MONTHS, THE FILED RATE MUST BE ALLOWED TO GO INTO
EFFECT, BUT THE COMMISSION'S ORDER MAY BE MADE RETROACTIVE TO THAT
DATE. 

IN CONSTRUING THE ACT, WE SHOULD BEAR IN MIND THAT IT EVINCES NO
PURPOSE TO ABROGATE PRIVATE RATE CONTRACTS AS SUCH.  TO THE CONTRARY,
BY REQUIRING CONTRACTS TO BE FILED WITH THE COMMISSION, THE ACT
EXPRESSLY RECOGNIZES THAT RATES TO PARTICULAR CUSTOMERS MAY BE SET BY
INDIVIDUAL CONTRACTS.  IN THIS RESPECT, THE ACT IS IN MARKED CONTRAST
TO THE INTERSTATE COMMERCE ACT, WHICH IN EFFECT PRECLUDES PRIVATE RATE
AGREEMENTS BY ITS REQUIREMENT THAT THE RATES TO ALL SHIPPERS BE
UNIFORM, A REQUIREMENT WHICH MADE UNNECESSARY ANY PROVISION FOR FILING
CONTRACTS.  SEE ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56.  THE
COMMISSION IN ITS BRIEF RECOGNIZES THIS BASIC DIFFERENCE BETWEEN THE
TWO ACTS AND NOTES THE DIFFERING NATURES OF THE INDUSTRIES WHICH GAVE
RISE TO IT.  THE VAST NUMBER OF RETAIL TRANSACTIONS OF RAILROADS MADE
POLICING OF INDIVIDUAL TRANSACTIONS ADMINISTRATIVELY IMPOSSIBLE;
EFFECTIVE REGULATION COULD BE ACCOMPLISHED ONLY BY REQUIRING COMPLIANCE
WITH A SINGLE SCHEDULE OF RATES APPLICABLE TO ALL SHIPPERS.  ON THE
OTHER HAND, ONLY A RELATIVELY FEW WHOLESALE TRANSACTIONS ARE REGULATED
BY THE NATURAL GAS ACT AND THESE TYPICALLY REQUIRE SUBSTANTIAL
INVESTMENT IN CAPACITY AND FACILITIES FOR THE SERVICE OF A PARTICULAR
DISTRIBUTOR.  RECOGNIZING THE NEED THESE CIRCUMSTANCES CREATE FOR
INDIVIDUALIZED ARRANGEMENTS BETWEEN NATURAL GAS COMPANIES AND
DISTRIBUTORS, THE NATURAL GAS ACT PERMITS THE RELATIONS BETWEEN THE
PARTIES TO BE ESTABLISHED INITIALLY BY CONTRACT, THE PROTECTION OF THE
PUBLIC INTEREST BEING AFFORDED BY SUPERVISION OF THE INDIVIDUAL
CONTRACTS, WHICH TO THAT END MUST BE FILED WITH THE COMMISSION AND MADE
PUBLIC. 

THE PROVISION OF THE NATURAL GAS ACT DIRECTLY IN ISSUE HERE IS SEC.
4(D), WHICH PROVIDES THAT "NO CHANGE SHALL BE MADE BY ANY NATURAL-GAS
COMPANY IN ANY SUCH FILED RATE  ...  OR CONTRACT  ... EXCEPT AFTER
THIRTY DAYS' NOTICE TO THE COMMISSION," WHICH NOTICE IS TO BE GIVEN BY
FILING NEW SCHEDULES SHOWING THE CHANGES AND THE TIME THEY ARE TO GO
INTO EFFECT.  IT IS ARGUED THAT THIS PROVISION AUTHORIZES A NATURAL GAS
COMPANY TO CHANGE ITS RATE CONTRACTS SIMPLY BY FILING A NEW SCHEDULE OF
RATES, TO GO INTO EFFECT IN NO LESS THAN THIRTY DAYS.  ON ITS FACE,
HOWEVER, SEC. 4(D) IS SIMPLY A PROHIBITION, NOT A GRANT OF POWER.  IT
DOES NOT PURPORT TO SAY WHAT IS EFFECTIVE TO CHANGE A CONTRACT, ANY
MORE THAN SEC. 4(C) PURPORTS TO DEFINE WHAT CONSTITUTES A "CONTRACT"
THAT MAY BE FILED WITH THE COMMISSION.  THE SECTION SAYS ONLY THAT A
CHANGE CANNOT BE MADE WITHOUT THE PROPER NOTICE TO THE COMMISSION; IT
DOES NOT SAY UNDER WHAT CIRCUMSTANCES A CHANGE CAN BE MADE.  ABSENT THE
ACT, A UNILATERAL ANNOUNCEMENT OF A CHANGE TO A CONTRACT WOULD OF
COURSE BE A NULLITY, AND WE FIND NO BASIS IN THE LANGUAGE OF SEC. 4(D)
FOR INFERRING THAT THE MERE IMPOSITION OF A FILING-AND-NOTICE
REQUIREMENT WAS INTENDED TO MAKE EFFECTIVE ACTION WHICH WOULD OTHERWISE
BE OF NO EFFECT AT ALL.  IN SHORT, SEC. 4(D) ON ITS FACE INDICATES NO
MORE THAN THAT OTHERWISE VALID CHANGES CANNOT BE PUT INTO EFFECT
WITHOUT GIVING THE REQUIRED NOTICE TO THE COMMISSION.  TO FIND IN THE
THEIR CONTRACTS UNILATERALLY REQUIRES READING INTO IT LANGUAGE THAT IS
NEITHER THERE NOR REASONABLY TO BE IMPLIED. 

IT IS ARGUED, HOWEVER, THAT A DIFFERENT CONCLUSION IS COMPELLED WHEN
SEC. 4(D) IS READ WITH THE OTHER PROVISIONS OF THE ACT.  PETITIONERS
ATTEMPT TO CHARACTERIZE THE ACT AS SETTING UP TWO SEPARATE AND DISTINCT
"PROCEDURES" FOR CHANGING RATES:  (1) THE "HEARING AND ORDER" PROCEDURE
OF SEC. 5(A) UNDER WHICH THE COMMISSION MAY DETERMINE EXISTING RATES TO
BE UNREASONABLE AND ORDER CHANGES TO BE MADE; AND (2) THE "FILED-RATE"
PROCEDURE OF SEC. 4(D) AND (E) UNDER WHICH THE NATURAL GAS COMPANY MAY
INITIATE CHANGES, IN WHICH EVENT THE COMMISSION'S ONLY CONCERN IS WITH
THE REASONABLENESS OF THE NEW RATE.  THESE ARE SAID TO BE COMPLEMENTARY
AND MUTUALLY EXCLUSIVE PROCEDURES, THE CHOICE BETWEEN WHICH - SINCE
BOTH EXPRESSLY RELATE TO CHANGES IN "CONTRACTS" AS WELL AS OTHER RATES
DEPENDS SOLELY ON WHO IS SEEKING THE CHANGE AND NOT ON WHETHER THE
RATE SOUGHT TO BE CHANGED IS EMBODIED IN A CONTRACT.  FROM THIS
CHARACTERIZATION OF THE PROCEDURES, PETITIONERS CONCLUDE THAT WHEN A
NATURAL GAS COMPANY INITIATES A RATE CHANGE UNDER SEC. 4(D) THE
PROCEEDINGS ARE GOVERNED EXCLUSIVELY BY SEC. 4(D) AND (E), AND HENCE
THE COMMISSION'S ONLY POWER IS THAT WHICH IT HAS UNDER SEC. 4(E) TO SET
ASIDE THE NEW RATE IF THAT IS FOUND TO BE UNLAWFUL. 

THE MAJOR DEFECT OF THIS ARGUMENT IS THAT IT ASSUMES THE ANSWER TO
THE VERY QUESTION IN ISSUE - WHETHER NATURAL GAS COMPANIES ARE
EMPOWERED TO "INITIATE" UNILATERAL CONTRACT CHANGES UNDER SEC. 4(D). 
THAT THE SO-CALLED "FILED-RATE" PROCEDURE IS APPLICABLE TO CHANGES IN
CONTRACTS AS WELL AS OTHER RATES PROVES ONLY THAT CONTRACTS MAY BE
CHANGED, NOT THAT THEY MAY BE CHANGED UNILATERALLY.  MOREOVER, THE VERY
PREMISE THAT SECS. 4(D) AND (E) AND 5(A) ARE ALTERNATIVE RATE-CHANGING
"PROCEDURES" IS ITSELF BASED ON A MISCONCEPTION OF THE STRUCTURE OF THE
ACT.  THESE SECTIONS ARE SIMPLY PARTS OF A SINGLE STATUTORY SCHEME
UNDER WHICH ALL RATES ARE ESTABLISHED INITIALLY BY THE NATURAL GAS
COMPANIES, BY CONTRACT OR OTHERWISE, AND ALL RATES ARE SUBJECT TO BEING
MODIFIED BY THE COMMISSION UPON A FINDING THAT THEY ARE UNLAWFUL.  THE
ACT MERELY DEFINES THE REVIEW POWERS OF THE COMMISSION AND IMPOSES SUCH
DUTIES ON NATURAL GAS COMPANIES AS ARE NECESSARY TO EFFECTUATE THOSE
POWERS; IT PURPORTS NEITHER TO GRANT NOR TO DEFINE THE INITIAL RATE
SETTING POWERS OF NATURAL GAS COMPANIES. 

THE POWERS OF THE COMMISSION ARE DEFINED BY SEC. 4(E) AND 5(A).  THE
BASIC POWER OF THE COMMISSION IS THAT GIVEN IT BY SEC. 5(A) TO SET
ASIDE AND MODIFY ANY RATE OR CONTRACT WHICH IT DETERMINES, AFTER
HEARING, TO BE "UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR
PREFERENTIAL."  THIS IS NEITHER A "RATE-MAKING" NOR A "RATE-CHANGING"
PROCEDURE.  IT IS SIMPLY THE POWER TO REVIEW RATES AND CONTRACTS MADE
IN THE FIRST INSTANCE BY NATURAL GAS COMPANIES AND, IF THEY ARE
DETERMINED TO BE UNLAWFUL, TO REMEDY THEM.  SECTION 5(A) WOULD OF ITS
OWN FORCE APPLY TO ALL THE RATES OF A NATURAL GAS COMPANY, WHETHER LONG
ESTABLISHED OR NEWLY CHANGED, BUT IN THE LATTER CASE THE POWER IS
FURTHER IMPLEMENTED BY SEC. 4(E).  ALL THAT SEC. 4(E) DOES, HOWEVER, IS
TO ADD TO THIS BASIC POWER, IN THE CASE OF A NEWLY CHANGED RATE OR
CONTRACT (EXCEPT "INDUSTRIAL" RATES), THE FURTHER POWERS (1) TO
PRESERVE THE STATUS QUO PENDING REVIEW OF THE NEW RATE BY SUSPENDING
ITS OPERATION FOR A LIMITED PERIOD, AND (2) THEREAFTER TO MAKE ITS
ORDER RETROACTIVE, BY MEANS OF THE REFUND PROCEDURE, TO THE DATE THE
CHANGE BECAME EFFECTIVE.  THE SCOPE AND PURPOSE OF THE COMMISSION'S
REVIEW REMAIN THE SAME - TO DETERMINE WHETHER THE RATE FIXED BY THE
NATURAL GAS COMPANY IS LAWFUL. 

THE LIMITATIONS IMPOSED ON NATURAL GAS COMPANIES ARE SET OUT IN SECS.
4(C) AND 4(D).  THE BASIC DUTIES ARE THE FILING REQUIREMENTS:  SEC.
4(C) REQUIRES SCHEDULES SHOWING ALL RATES AND CONTRACTS IN FORCE TO BE
FILED WITH THE COMMISSION AND SEC. 4(D) REQUIRES ALL CHANGES IN SUCH
SCHEDULES LIKEWISE TO BE FILED.  IN ADDITION, SEC. 4(D) IMPOSES THE
FURTHER REQUIREMENT THAT THE CHANGES BE FILED AT LEAST THIRTY DAYS
BEFORE THEY ARE TO GO INTO EFFECT.  IT MAY READILY BE SEEN THAT THESE
REQUIREMENTS ARE NO MORE THAN ARE NECESSARY TO IMPLEMENT SECS. 4(E) AND
5(A):  THE FILING REQUIREMENTS ARE OBVIOUSLY NECESSARY TO PERMIT THE
COMMISSION TO EXERCISE ITS REVIEW FUNCTIONS, AND THE REQUIREMENT OF 30
DAYS' ADVANCE NOTICE OF CHANGES IS ESSENTIAL TO AFFORD THE COMMISSION A
REASONABLE PERIOD IN WHICH TO DETERMINE WHETHER TO EXERCISE ITS
SUSPENSION POWERS UNDER SEC. 4(E). 

THE RELATIONSHIP OF THESE SECTIONS THUS AFFORDS NO SUPPORT TO
PETITIONERS' CHARACTERIZATION OF SEC. 4(D) AND (E) AS ESTABLISHING A
RATE-CHANGING "PROCEDURE" - A "PROCEEDING" BEFORE THE COMMISSION
"INITIATED" BY A NATURAL GAS COMPANY FILING A "PROPOSED" CHANGE. 
TO THE COMMISSION OF ANY "CHANGE  ...  MADE BY" A NATURAL GAS COMPANY,
AND THE CHANGE IS EFFECTED, IF AT ALL, NOT BY AN ORDER OF THE
COMMISSION BUT SOLELY BY VIRTUE OF THE NATURAL GAS COMPANY'S OWN
ACTION.  IF THE PURPORTED CHANGE IS ONE THE NATURAL GAS COMPANY HAS THE
POWER TO MAKE, THE "CHANGE" IS COMPLETED UPON COMPLIANCE WITH THE
NOTICE REQUIREMENT AND THE NEW RATE HAS THE SAME FORCE AS ANY OTHER
RATE - IT CAN BE SET ASIDE ONLY UPON BEING FOUND UNLAWFUL BY THE
COMMISSION.  IT IS THUS NO MORE A "PROPOSED" RATE THAN ANY OTHER RATE,
ALL OF WHICH ARE EQUALLY SUBJECT TO COMMISSION REVIEW.  LIKEWISE, NO
"PROCEEDING" IS "INITIATED" BY A SEC. 4(D) FILING.  A PROCEEDING TO
REVIEW THE NEW RATE MAY BE INITIATED UNDER SEC. 4(E), BUT, IF SO, IT IS
INITIATED BY THE COMMISSION IN THE SAME MANNER AS A PROCEEDING UNDER
SEC. 5(A) TO REVIEW ANY OTHER RATE, THAT IS, UPON COMPLAINT OR ITS OWN
MOTION.  THE ONLY DIFFERENCE IS THE INTERIM SUSPENSION POWER GIVEN BY
SEC. 4(E), BUT THAT IN NO WAY AFFECTS THE CHARACTER OF THE PROCEEDING,
WHICH REMAINS, LIKE A SEC. 5(A) PROCEEDING, SIMPLY A REVIEW BY THE
COMMISSION OF A RATE ESTABLISHED BY THE NATURAL GAS COMPANY.  IN SHORT,
THE ACT PROVIDES NO "PROCEDURE" EITHER FOR MAKING OR CHANGING RATES; IT
PROVIDES ONLY FOR NOTICE TO THE COMMISSION OF THE RATES ESTABLISHED BY
NATURAL GAS COMPANIES AND FOR REVIEW BY THE COMMISSION OF THOSE RATES. 
THE INITIAL RATE-MAKING AND RATE-CHANGING POWERS OF NATURAL GAS
COMPANIES REMAIN UNDEFINED AND UNAFFECTED BY THE ACT. 

ALL OF THE RELEVANT PROVISIONS OF THE ACT CAN THUS BE FULLY EXPLAINED
AS SIMPLY DEFINING AND IMPLEMENTING THE POWERS OF THE COMMISSION TO
REVIEW RATES SET INITIALLY BY NATURAL GAS COMPANIES, AND THERE IS
NOTHING TO INDICATE THAT THEY WERE INTENDED TO DO MORE.  ADMITTEDLY,
THE ACT PRESUMES A CAPACITY IN NATURAL GAS COMPANIES TO MAKE RATES AND
CONTRACTS AND TO CHANGE THEM FROM TIME TO TIME, BUT NOWHERE IN THE ACT
IS EITHER POWER DEFINED.  THE OBVIOUS IMPLICATION IS THAT, EXCEPT AS
SPECIFICALLY LIMITED BY THE ACT, THE RATE-MAKING POWERS OF NATURAL GAS
COMPANIES WERE TO BE NO DIFFERENT FROM THOSE THEY WOULD POSSESS IN THE
ABSENCE OF THE ACT:  TO ESTABLISH EX PARTE, AND CHANGE AT WILL, THE
RATES OFFERED TO PROSPECTIVE CUSTOMERS; OR TO FIX BY CONTRACT, AND
CHANGE ONLY BY MUTUAL AGREEMENT, THE RATE AGREED UPON WITH A PARTICULAR
CUSTOMER.  NO MORE IS NECESSARY TO GIVE FULL MEANING TO ALL THE
PROVISIONS OF THE ACT:  CONSISTENT WITH THIS, SEC. 4(D) MEANS SIMPLY
THAT NO CHANGE - NEITHER A UNILATERAL CHANGE TO AN EX PARTE RATE NOR AN
AGREED-UPON CHANGE TO A CONTRACT - CAN BE MADE BY A NATURAL GAS COMPANY
WITHOUT THE PROPER NOTICE TO THE COMMISSION.  HENCE THERE IS NOTHING IN
THE STRUCTURE OR PURPOSE OF THE ACT FROM WHICH WE CAN INFER THE RIGHT,
NOT OTHERWISE POSSESSED AND NOWHERE EXPRESSLY GIVEN BY THE ACT, OF
NATURAL GAS COMPANIES UNILATERALLY TO CHANGE THEIR CONTRACTS. 

OUR CONCLUSION THAT THE NATURAL GAS ACT DOES NOT EMPOWER NATURAL GAS
COMPANIES UNILATERALLY TO CHANGE THEIR CONTRACTS FULLY PROMOTES THE
PURPOSES OF THE ACT.  BY PRESERVING THE INTEGRITY OF CONTRACTS, IT
PERMITS THE STABILITY OF SUPPLY ARRANGEMENTS WHICH ALL AGREE IS
ESSENTIAL TO THE HEALTH OF THE NATURAL GAS INDUSTRY.  CONVERSION BY
CONSUMERS, PARTICULARLY INDUSTRIAL USERS, TO THE USE OF NATURAL GAS MAY
FREQUENTLY REQUIRE SUBSTANTIAL INVESTMENTS WHICH THE CONSUMER WOULD BE
UNWILLING TO MAKE WITHOUT LONG-TERM COMMITMENTS FROM THE DISTRIBUTOR,
AND THE DISTRIBUTOR CAN HARDLY MAKE SUCH COMMITMENTS IF ITS SUPPLY
CONTRACTS ARE SUBJECT TO UNILATERAL CHANGE BY THE NATURAL GAS COMPANY
WHENEVER ITS INTERESTS SO DICTATE.  THE HISTORY OF THE IDEAL CONTRACT
FURNISHES A CASE IN POINT.  ON THE OTHER HAND, DENYING TO NATURAL GAS
COMPANIES THE POWER UNILATERALLY TO CHANGE THEIR CONTRACTS IN NO WAY
IMPAIRS THE REGULATORY POWERS OF THE COMMISSION, FOR THE CONTRACTS
REMAIN FULLY SUBJECT TO THE PARAMOUNT POWER OF THE COMMISSION TO MODIFY
THEM WHEN NECESSARY IN THE PUBLIC INTEREST.  THE ACT THUS AFFORDS A
REASONABLE ACCOMMODATION BETWEEN THE CONFLICTING INTERESTS OF CONTRACT
STABILITY ON THE ONE HAND AND PUBLIC REGULATION ON THE OTHER. 

IT MAY BE NOTED ALSO THAT THIS INTERPRETATION, WHILE PRECLUDING
NATURAL GAS COMPANIES FROM UNILATERALLY CHANGING THEIR CONTRACTS SIMPLY
BECAUSE IT IS IN THEIR PRIVATE INTERESTS TO DO SO, DOES NOT DEPRIVE
THEM OF AN AVENUE OF RELIEF WHEN THEIR INTERESTS COINCIDE WITH THE
PUBLIC INTEREST.  SECTION 5(A) AUTHORIZES THE COMMISSION TO INVESTIGATE
RATES NOT ONLY "UPON COMPLAINT OF ANY STATE, MUNICIPALITY, STATE
COMMISSION, OR GAS DISTRIBUTING COMPANY" BUT ALSO "UPON ITS OWN
MOTION."  THUS, WHILE NATURAL GAS COMPANIES ARE UNDERSTANDABLY NOT
GIVEN THE SAME EXPLICIT STANDING TO COMPLAIN OF THEIR OWN CONTRACTS AS
ARE THOSE WHO REPRESENT THE PUBLIC INTEREST OR THOSE WHO MIGHT BE
DISCRIMINATED AGAINST, THERE IS NOTHING TO PREVENT THEM FROM FURNISHING
TO THE COMMISSION ANY RELEVANT INFORMATION AND REQUESTING IT TO
INITIATE AN INVESTIGATION ON ITS OWN MOTION.  (FN4)  AND IF THE
COMMISSION, AFTER HEARING, DETERMINES THE CONTRACT RATE TO BE SO LOW AS
TO CONFLICT WITH THE PUBLIC INTEREST, IT MAY UNDER SEC. 5(A) AUTHORIZE
THE NATURAL GAS COMPANY TO FILE A SCHEDULE INCREASING THE RATE. 

THE PRIOR DECISIONS OF THIS COURT CITED BY PETITIONERS AS REQUIRING
AN OPPOSITE RESULT ARE READILY DISTINGUISHABLE.  IN ARMOUR PACKING CO.
V. UNITED STATES, 209 U.S. 56, A RATE CONTRACT BETWEEN A RAILROAD AND A
SHIPPER AT THE FILED RATES IN EFFECT AT THE TIME THE CONTRACT WAS MADE
WAS HELD NOT TO JUSTIFY PAYMENT AT THE CONTRACT RATE FOR SHIPMENTS MADE
AFTER THE FILED RATES FOR SHIPMENTS OF THAT CHARACTER HAD BEEN
INCREASED BY THE RAILROAD.  THE VERY BASIS FOR THAT DECISION, HOWEVER,
WAS THE REQUIREMENT OF THE INTERSTATE COMMERCE ACT THAT RATES TO ALL
SHIPPERS BE UNIFORM AND COMPLY WITH THE SINGLE TARIFF FILED WITH THE
COMMISSION, THERE BEING NO PROVISION UNDER THAT ACT FOR THE FILING OF
INDIVIDUAL CONTRACTS.  THAT IS, THE INTERSTATE COMMERCE ACT BY ITS OWN
FORCE PRECLUDED CONTRACTS FOR RATES DIFFERENT FROM THOSE APPLICABLE TO
OTHER SHIPPERS.  THE NATURAL GAS ACT, ON THE OTHER HAND, RECOGNIZES THE
NEED FOR PRIVATE CONTRACTS OF VARYING TERMS AND EXPRESSLY PROVIDES FOR
THE FILING OF SUCH CONTRACTS AS A PART OF THE RATE SCHEDULES.  NO
CONTENTION IS MADE HERE THAT THE FACT THAT THE MOBILE CONTRACT WAS AT A
RATE DIFFERENT FROM THAT TO OTHER CUSTOMERS IN ITSELF MADE THE CONTRACT
ILLEGAL OR THAT - AS HELD IN ARMOUR - UNITED COULD NOT LAWFULLY HAVE
COMPLIED WITH THE CONTRACT HAD IT WANTED TO.  IN MIDLAND REALTY CO. V.
KANSAS CITY P.&L. CO., 300 U.S. 109, THE COURT HELD ONLY THAT A STATUTE
INTERPRETED BY THE STATE COURT AS AUTHORIZING UNILATERAL CONTRACT
CHANGES BY A PUBLIC UTILITY WAS NOT UNCONSTITUTIONAL.  ON THE OTHER
HAND, IN WICHITA RAILROAD & LIGHT CO. V. PUBLIC UTILITIES COMMISSION OF
KANSAS, 260 U.S. 48, THIS COURT INTERPRETED A KANSAS STATUTE, NOT YET
FULLY CONSTRUED BY THE STATE COURT, AS NOT GIVING SUCH A POWER TO A
PUBLIC UTILITY, AND TO THE EXTENT THAT THAT DECISION RESTED UPON AN
ORIGINAL INTERPRETATION OF SIMILAR STATUTORY LANGUAGE IT AFFORDS STRONG
SUPPORT FOR OUR INTERPRETATION OF THE NATURAL GAS ACT. 

THE ONLY TWO COURTS OF APPEALS THAT HAVE SQUARELY RULED ON THIS
QUESTION, THOSE FOR THE DISTRICT OF COLUMBIA AND THIRD CIRCUITS, HAVE
CONCLUDED THAT NEITHER THE NATURAL GAS ACT, (FN5) NOR THE VIRTUALLY
IDENTICAL PROVISIONS OF THE FEDERAL POWER ACT (FN6) AUTHORIZE
UNILATERAL CONTRACT CHANGES.   (FN7)  THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT, HOWEVER, ALTHOUGH DISTINGUISHING ITS DECISION ON A
PROCEDURAL GROUND, HAS INDICATED A CONTRARY CONCLUSION.  (FN8)  THE
PARTIES HAVE ALSO REFERRED US TO NUMEROUS STATE COURT DECISIONS
CONSTRUING STATE STATUTES OF VARYING DEGREES OF SIMILARITY TO THE
NATURAL GAS ACT, SOME HOLDING THAT UNILATERAL CONTRACT CHANGES WERE
AUTHORIZED (FN9) AND OTHERS HOLDING THAT THEY WERE NOT.  (FN10)  TAKEN
AS A WHOLE, THE STATE DECISIONS PROVE LITTLE MORE THAN THAT THE
QUESTION IS AN OPEN ONE AND AFFORD LITTLE GUIDANCE TO THE PROPER
INTERPRETATION OF THE FEDERAL ACT. 

FROM OUR CONCLUSION THAT THE NATURAL GAS ACT GIVES A NATURAL GAS
COMPANY NO POWER TO CHANGE ITS CONTRACTS UNILATERALLY, IT FOLLOWS THAT
THE NEW SCHEDULE FILED BY UNITED WAS A NULLITY INSOFAR AS IT PURPORTED
TO CHANGE THE RATE SET BY ITS CONTRACT WITH MOBILE AND THAT THE
CONTRACT RATE REMAINED THE ONLY LAWFUL RATE.  THERE CAN BE NO DOUBT OF
THE AUTHORITY OF THE COMMISSION TO REJECT THE UNAUTHORIZED FILING UNDER
ITS GENERAL POWERS TO ISSUE ORDERS "NECESSARY OR APPROPRIATE TO CARRY
OUT THE PROVISIONS OF THIS ACT," SEC. 16, AND ITS FAILURE TO DO SO AND
ITS ORDER "PERMITTING" THE NEW RATES TO BECOME EFFECTIVE WERE IN
ERROR.  ANY AMOUNTS PAID BY MOBILE IN EXCESS OF THE CONTRACT RATES ON
THE BASIS OF THE ERRONEOUS ORDER OF THE COMMISSION WERE THEREFORE
UNLAWFULLY COLLECTED, AND UNITED IS OBLIGATED TO MAKE RESTITUTION OF
THE EXCESS PAYMENTS.  CF.  BALTIMORE & OHIO R. CO. V. UNITED STATES,
279 U.S. 781.  AFFIRMED. 

FN1  "SEC.  4.  ...  (C)  UNDER SUCH RULES AND REGULATIONS AS THE
COMMISSION MAY PRESCRIBE, EVERY NATURAL-GAS COMPANY SHALL FILE WITH THE
COMMISSION, WITHIN SUCH TIME (NOT LESS THAN SIXTY DAYS FROM THE DATE
THIS ACT TAKES EFFECT (JUNE 21, 1938)) AND IN SUCH FORM AS THE
COMMISSION MAY DESIGNATE, AND SHALL KEEP OPEN IN CONVENIENT FORM AND
PLACE FOR PUBLIC INSPECTION, SCHEDULES SHOWING ALL RATES AND CHARGES
FOR ANY TRANSPORTATION OR SALE SUBJECT TO THE JURISDICTION OF THE
COMMISSION, AND THE CLASSIFICATIONS, PRACTICES, AND REGULATIONS
AFFECTING SUCH RATES AND CHARGES, TOGETHER WITH ALL CONTRACTS WHICH IN
ANY MANNER AFFECT TO RELATE TO SUCH RATES, CHARGES, CLASSIFICATIONS,
AND SERVICES. 

"(D)  UNLESS THE COMMISSION OTHERWISE ORDERS, NO CHANGE SHALL BE MADE
BY ANY NATURAL-GAS COMPANY IN ANY SUCH RATE, CHARGE, CLASSIFICATION, OR
SERVICE, OR IN ANY RULE, REGULATION, OR CONTRACT RELATING THERETO,
EXCEPT AFTER THIRTY DAYS' NOTICE TO THE COMMISSION AND TO THE PUBLIC. 
SUCH NOTICE SHALL BE GIVEN BY FILING WITH THE COMMISSION AND KEEPING
OPEN FOR PUBLIC INSPECTION NEW SCHEDULES STATING PLAINLY THE CHANGE OR
CHANGES TO BE MADE IN THE SCHEDULE OR SCHEDULES THEN IN FORCE AND THE
TIME WHEN THE CHANGE OR CHANGES WILL GO INTO EFFECT.  THE COMMISSION,
FOR GOOD CAUSE SHOWN, MAY ALLOW CHANGES TO TAKE EFFECT WITHOUT
REQUIRING THE THIRTY DAYS' NOTICE HEREIN PROVIDED FOR BY AN ORDER
SPECIFYING THE CHANGES SO TO BE MADE AND THE TIME WHEN THEY SHALL TAKE
EFFECT AND THE MANNER IN WHICH THEY SHALL BE FILED AND PUBLISHED. 

"(E)  WHENEVER ANY SUCH NEW SCHEDULE IS FILED THE COMMISSION SHALL
HAVE AUTHORITY, EITHER UPON COMPLAINT OF ANY STATE, MUNICIPALITY, OR
STATE COMMISSION, OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, AT
ONCE, AND IF IT SO ORDERS, WITHOUT ANSWER OR FORMAL PLEADING BY THE
NATURAL-GAS COMPANY, BUT UPON REASONABLE NOTICE, TO ENTER UPON A
HEARING CONCERNING THE LAWFULNESS OF SUCH RATE, CHARGE, CLASSIFICATION,
OR SERVICE; AND, PENDING SUCH HEARING AND THE DECISION THEREON, THE
COMMISSION, UPON FILING WITH SUCH SCHEDULES AND DELIVERING TO THE
NATURAL-GAS COMPANY AFFECTED THEREBY A STATEMENT IN WRITING OF ITS
REASONS FOR SUCH SUSPENSION, MAY SUSPEND THE OPERATION OF SUCH SCHEDULE
AND DEFER THE USE OF SUCH RATE, CHARGE, CLASSIFICATION, OR SERVICE, BUT
NOT FOR A LONGER PERIOD THAN FIVE MONTHS BEYOND THE TIME WHEN IT WOULD
OTHERWISE GO INTO EFFECT:  PROVIDED, THAT THE COMMISSION SHALL NOT HAVE
AUTHORITY TO SUSPEND THE RATE, CHARGE, CLASSIFICATION, OR SERVICE FOR
THE SALE OF NATURAL GAS FOR RESALE FOR INDUSTRIAL USE ONLY; AND AFTER
FULL HEARINGS, EITHER COMPLETED BEFORE OR AFTER THE RATE, CHARGE,
CLASSIFICATION, OR SERVICE GOES INTO EFFECT, THE COMMISSION MAY MAKE
SUCH ORDERS WITH REFERENCE THERETO AS WOULD BE PROPER IN A PROCEEDING
INITIATED AFTER IT HAD BECOME EFFECTIVE.  IF THE PROCEEDING HAS NOT
BEEN CONCLUDED AND AN ORDER MADE AT THE EXPIRATION OF THE SUSPENSION
PERIOD, ON MOTION OF THE NATURAL-GAS COMPANY MAKING THE FILING, THE
PROPOSED CHANGE OF RATE, CHARGE, CLASSIFICATION, OR SERVICE SHALL GO
INTO EFFECT.  WHERE INCREASED RATES OR CHARGES ARE THUS MADE EFFECTIVE,
THE COMMISSION MAY, BY ORDER, REQUIRE THE NATURAL-GAS COMPANY TO
FURNISH A BOND, TO BE APPROVED BY THE COMMISSION, TO REFUND ANY AMOUNTS
ORDERED BY THE COMMISSION, TO KEEP ACCURATE ACCOUNTS IN DETAIL OF ALL
AMOUNTS RECEIVED BY REASON OF SUCH INCREASE, SPECIFYING BY WHOM AND IN
WHOSE BEHALF SUCH AMOUNTS WERE PAID, AND, UPON COMPLETION OF THE
HEARING AND DECISION, TO ORDER SUCH NATURAL-GAS COMPANY TO REFUND, WITH
INTEREST, THE PORTION OF SUCH INCREASED RATES OR CHARGES BY ITS
DECISION FOUND NOT JUSTIFIED.  AT ANY HEARING INVOLVING A RATE OR
CHARGE SOUGHT TO BE INCREASED, THE BURDEN OF PROOF TO SHOW THAT THE
INCREASED RATE OR CHARGE IS JUST AND REASONABLE SHALL BE UPON THE
NATURAL-GAS COMPANY, AND THE COMMISSION SHALL GIVE TO THE HEARING AND
DECISION OF SUCH QUESTIONS PREFERENCE OVER OTHER QUESTIONS PENDING
BEFORE IT AND DECIDE THE SAME AS SPEEDILY AS POSSIBLE."  52 STAT. 822
823, 15 U.S.C. SEC. 717C. 

"SEC. 5.  (A) WHENEVER THE COMMISSION, AFTER A HEARING HAD UPON ITS
OWN MOTION OR UPON COMPLAINT OF ANY STATE, MUNICIPALITY, STATE
COMMISSION, OR GAS DISTRIBUTING COMPANY, SHALL FIND THAT ANY RATE,
CHARGE, OR CLASSIFICATION DEMANDED, OBSERVED, CHARGED, OR COLLECTED BY
ANY NATURAL-GAS COMPANY IN CONNECTION WITH ANY TRANSPORTATION OR SALE
OF NATURAL GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR THAT
ANY RULE, REGULATION, PRACTICE, OR CONTRACT AFFECTING SUCH RATE,
CHARGE, OR CLASSIFICATION IS UNJUST, UNREASONABLE, UNDULY
DISCRIMINATORY, OR PREFERENTIAL, THE COMMISSION SHALL DETERMINE THE
JUST AND REASONABLE RATE, CHARGE, CLASSIFICATION, RULE, REGULATION,
PRACTICE, OR CONTRACT TO BE THEREAFTER OBSERVED AND IN FORCE, AND SHALL
FIX THE SAME BY ORDER:  PROVIDED, HOWEVER, THAT THE COMMISSION SHALL
HAVE NO POWER TO ORDER ANY INCREASE IN ANY RATE CONTAINED IN THE
CURRENTLY EFFECTIVE SCHEDULE OF SUCH NATURAL GAS COMPANY ON FILE WITH
THE COMMISSION, UNLESS SUCH INCREASE IS IN ACCORDANCE WITH A NEW
SCHEDULE FILED BY SUCH NATURAL GAS COMPANY; BUT THE COMMISSION MAY
ORDER A DECREASE WHERE EXISTING RATES ARE UNJUST, UNDULY
DISCRIMINATORY, PREFERENTIAL, OTHERWISE UNLAWFUL, OR ARE NOT THE LOWEST
REASONABLE RATES."  52 STAT. 823-824, 15 U.S.C. SEC. 717D.    FN2
UNITED AGREED TO PAY MOBILE 2 CENTS PER MCF FOR TRANSPORTING THE GAS TO
IDEAL.  SINCE UNDER THE ASSIGNEE CONTRACT UNITED RECEIVED ONLY 12 CENTS
PER MCF FROM IDEAL, ITS NET RETURN AFTER THE ASSIGNMENT WAS ONLY 10
CENTS PER MCF, LESS THAN THE 10.7 CENTS IT HAD RECEIVED UNDER ITS
EARLIER CONTRACT WITH MOBILE.    FN3  SEE NOTE 1, PP. 334-336, SUPRA. 

FN4  SEE SEC. 14(A) OF THE ACT, PROVIDING IN PART:  "THE COMMISSION
MAY PERMIT ANY PERSON TO FILE WITH IT A STATEMENT IN WRITING  ...  AS
TO ANY OR ALL FACTS AND CIRCUMSTANCES CONCERNING A MATTER WHICH MAY BE
THE SUBJECT OF INVESTIGATION."  52 STAT. 828, 15 U.S.C. SEC. 717M. 

FN5  MOBILE GAS SERVICE CORP. V. F.P.C., 215 F.2D 883 (C.A. 3D CIR.),
THE DECISION BELOW. 

FN6  SIERRA PACIFIC POWER CO. V. F.P.C., 96 U.S. APP. D.C. 140, 223
F.2D 605, AFFIRMED, POST, P. 348. 

FN7  SEE ALSO COLORADO INTERSTATE GAS CO. V. F.P.C., 142 F.2D 943,
954 (C.A. 10TH CIR.), AFFIRMED, 324 U.S. 581. 

FN8  TYLER GAS SERVICE CO. V. UNITED GAS PIPE LINE CO., 217 F.2D 73. 

FN9  E.G., CITY OF LAMAR V. TOWN OF WILEY, 80 COLO. 18, 248 P. 1009;
KANSAS CITY L.&P. CO. V. MIDLAND REALTY CO., 338 MO. 1141, 93 S.W.2D
954, AFFIRMED, 300 U.S. 109; SUBURBAN WATER CO. V. OAKMONT BOROUGH, 268
PA. 243, 110 A. 778; NORTH COAST POWER CO. V. PUBLIC SERVICE COMM'N,
114 WASH. 102, 194 P. 587. 

FN10  E.G., RUTLAND R.L.&P. CO. V. BURDITT BROS., 94 VT. 421, 111 A.
582; COMMONWEALTH EX REL. PAGE MILLING CO. V. SHENANDOAH RIVER L.&P.
CORP., 135 VA. 47, 68-73, 115 S.E. 695, 701-703; IN RE SEARSPORT WATER
CO., 118 ME. 382, 392-393, 108 A. 452, 457-458; SEE ALSO ATTLEBORO
STEAM & ELEC.  CO. V. NARRAGANSETT ELEC.  LIGHTING CO., 295 F. 895
(D.R.I.). 
..END :











FEDERAL POWER COMMISSION V. SIERRA PACIFIC POWER CO. 350 U.S. 348 


NO. 51.  ARGUED NOVEMBER 8, 1955 - DECIDED FEBRUARY 27, 1956 - 96 U.S.
APP. D.C. 140, 223 F.2D 605, AFFIRMED. 


A SUPPLIER OF ELECTRIC POWER WHICH IS A "PUBLIC UTILITY" SUBJECT TO
REGULATION UNDER PART II OF THE FEDERAL POWER ACT ENTERED INTO A
CONTRACT, DULY FILED WITH THE FEDERAL POWER COMMISSION, TO SUPPLY
ELECTRIC POWER TO A DISTRIBUTOR AT A SPECIAL LOW RATE FOR 15 YEARS. 
BEFORE EXPIRATION OF THE CONTRACT AND WITHOUT THE CONSENT OF THE
DISTRIBUTOR, THE SUPPLIER FILED WITH THE COMMISSION UNDER SEC. 205(D)
OF THE ACT A SCHEDULE PURPORTING TO INCREASE ITS RATE TO THE
DISTRIBUTOR.  ACTING UNDER SEC. 205(E), THE COMMISSION CONDUCTED
PROCEEDINGS TO DETERMINE THE REASONABLENESS OF THE NEW RATE, DENIED THE
DISTRIBUTOR'S MOTION TO REJECT THE FILING ON THE GROUND THAT THE
SUPPLIER COULD NOT THUS UNILATERALLY CHANGE THE CONTRACT, AND HELD THE
NEW RATE NOT TO BE "UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR
PREFERENTIAL."  HELD: 

1.  THESE PROCEEDINGS WERE NOT EFFECTIVE TO SUPERSEDE THE SUPPLIER'S
CONTRACT WITH THE DISTRIBUTOR.  UNITED GAS PIPE LINE CO. V. MOBILE GAS
SERVICE CORP., ANTE, P. 332.  PP. 352-353. 

2.  THE REQUIREMENTS OF SEC. 206(A), WHICH PROVIDES THAT, IF THE
COMMISSION FINDS AN EXISTING RATE TO BE "UNJUST, UNREASONABLE, UNDULY
DISCRIMINATORY OR PREFERENTIAL," IT MAY DETERMINE A "JUST AND
REASONABLE RATE" AND FIX THE SAME BY ORDER, WERE NOT SATISFIED BY THE
COMMISSION'S STATEMENT THAT, "IF A FINDING ON THE LAWFULNESS OF THE
EXISTING CONTRACT RATE WERE NECESSARY OR APPROPRIATE, ON THE RECORD
BEFORE US THAT FINDING WOULD HAVE TO BE THAT THE EXISTING RATE IS
UNREASONABLY LOW AND THEREFORE UNLAWFUL.  FOR NONE OF THE EVIDENCE IN
THIS RECORD WARRANTS A FINDING THAT ANY RATE WOULD BE REASONABLE THAT
WOULD PRODUCE A RETURN OF SUBSTANTIALLY LESS THAN THE 4.75% RESULTING
FROM THE PROPOSED RATE, WHICH IS THE MINIMUM THE SUPPLIER IS WILLING TO
ACCEPT."  PP. 353-355. 

(A)  UNDER SEC. 206(A), THE COMMISSION HAS UNDOUBTED POWER TO
PRESCRIBE A CHANGE IN CONTRACT RATES WHENEVER IT DETERMINES THEM TO BE
UNLAWFUL; BUT ITS POWER IS LIMITED TO PRESCRIBING THE RATE "TO BE
THEREAFTER OBSERVED," AND IT CAN EFFECT NO CHANGE PRIOR TO THE DATE OF
THE ORDER.  P. 353. 

(B)  IF THE PROCEEDINGS HERE SATISFIED IN SUBSTANCE THE REQUIREMENTS
OF SEC. 206(A), IT WOULD SEEM IMMATERIAL THAT THE INVESTIGATION WAS
BEGUN AS ONE INTO THE REASONABLENESS OF THE PROPOSED RATE RATHER THAN
THE EXISTING CONTRACT RATE.  P. 353. 

(C)  THE PURPOSE OF THE POWER GIVEN THE COMMISSION UNDER SEC. 206(A)
IS THE PROTECTION OF THE PUBLIC INTEREST, AS DISTINGUISHED FROM THE
PRIVATE INTEREST OF THE UTILITIES, AND A CONTRACT MAY NOT BE SAID TO BE
EITHER "UNJUST" OR "UNREASONABLE" SIMPLY BECAUSE IT IS UNPROFITABLE TO
THE PUBLIC UTILITY.  PP. 354-355. 

3.  THE ORDER OF THE COURT OF APPEALS SETTING ASIDE THE COMMISSION'S
APPROVAL OF THE NEW RATE AND REMANDING THE CASE TO THE COMMISSION IS
AFFIRMED WITH INSTRUCTIONS TO REMAND THE CASE TO THE COMMISSION FOR
SUCH FURTHER PROCEEDINGS, NOT INCONSISTENT WITH THIS OPINION, AS THE
COMMISSION MAY DEEM DESIRABLE.  P. 355. 

FEDERAL POWER COMMISSION V. SIERRA PACIFIC POWER CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 53, PACIFIC GAS & ELECTRIC CO. V. SIERRA PACIFIC
POWER CO., ALSO ON CERTIORARI TO THE SAME COURT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS QUESTIONS UNDER TITLE II OF THE FEDERAL POWER ACT,
49 STAT. 847, 16 U.S.C. SEC. 824 ET SEQ., WHICH ARE IN PART SIMILAR TO
THOSE WE HAVE DECIDED TODAY UNDER THE NATURAL GAS ACT IN UNITED GAS
PIPE LINE CO. V. MOBILE GAS SERVICE CORP., ANTE, P. 332.  THE PERTINENT
PROVISIONS OF THE FEDERAL POWER ACT, SET FORTH IN THE MARGIN, (FN1) ARE
SECS. 205(C), (D), AND (E), AND 206(A), WHICH ARE SUBSTANTIALLY
IDENTICAL TO SECS. 4(C), (D), AND (E), AND 5(A), RESPECTIVELY, OF THE
NATURAL GAS ACT.  (FN2) 

RESPONDENT SIERRA PACIFIC POWER COMPANY (SIERRA) DISTRIBUTES
ELECTRICITY TO CONSUMERS IN NORTHERN NEVADA AND EASTERN CALIFORNIA. 
FOR MANY YEARS, IT HAS PURCHASED THE MAJOR PART OF ITS ELECTRIC POWER
FROM PETITIONER PACIFIC GAS AND ELECTRIC COMPANY (PG&E), A "PUBLIC
UTILITY" SUBJECT TO REGULATION UNDER PART II OF THE FEDERAL POWER ACT. 
IN 1947 SIERRA, FACED WITH INCREASED POSTWAR DEMANDS AND CONSUMER
AGITATION FOR CHEAPER POWER, BEGAN NEGOTIATING FOR POWER FROM OTHER
SOURCES, INCLUDING THE FEDERAL BUREAU OF RECLAMATION, WHICH AT THE TIME
HAD UNUSED CAPACITY AT SHASTA DAM.  TO FORESTALL THE POTENTIAL
COMPETITION, PG&E OFFERED SIERRA A 15-YEAR CONTRACT FOR POWER AT A
SPECIAL LOW RATE, WHICH OFFER SIERRA FINALLY ACCEPTED IN JUNE 1948. 
THE CONTRACT WAS DULY FILED WITH THE FEDERAL POWER COMMISSION. 

EARLY IN 1953, WHEN POWER FROM SHASTA DAM WAS NO LONGER AVAILABLE TO
SIERRA, PG&E, WITHOUT THE CONSENT OF SIERRA, FILED WITH THE COMMISSION
UNDER SEC. 205(D) OF THE FEDERAL POWER ACT A SCHEDULE PURPORTING TO
INCREASE ITS RATE TO SIERRA BY APPROXIMATELY 28%.  THE COMMISSION,
ACTING UNDER SEC. 205(E), SUSPENDED THE EFFECTIVE DATE OF THE NEW RATE
UNTIL SEPTEMBER 6, 1953, AND INITIATED A PROCEEDING TO DETERMINE ITS
REASONABLENESS.  SIERRA WAS PERMITTED TO INTERVENE IN THE PROCEEDING
BUT ITS MOTION TO REJECT THE FILING ON THE GROUND THAT PG&E COULD NOT
THUS UNILATERALLY CHANGE THE CONTRACT WAS DENIED.  AFTER COMPLETION OF
THE HEARINGS, THE COMMISSION, BY ORDER DATED JUNE 17, 1954, REAFFIRMED
ITS REFUSAL TO REJECT THE FILING AND HELD THE NEW RATE NOT TO BE
"UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR PREFERENTIAL."  7
P.U.R. 3D 256.  ON SIERRA'S PETITION FOR REVIEW, THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA, HOLDING THAT THE CONTRACT RATE COULD BE
CHANGED ONLY UPON A FINDING BY THE COMMISSION THAT IT WAS UNREASONABLE,
SET ASIDE THE COMMISSION'S ORDER AND REMANDED THE CASE WITH
INSTRUCTIONS TO THE COMMISSION TO DISMISS THE SEC. 205(E) PROCEEDING,
BUT WITHOUT PREJUDICE TO ITS INSTITUTING A NEW PROCEEDING UNDER SEC.
206(A) TO DETERMINE THE REASONABLENESS OF THE CONTRACT RATE.  96 U.S.
APP. D.C. 140, 223 F.2D 605.  WE BROUGHT THE CASE HERE BECAUSE OF THE
IMPORTANCE OF THE QUESTIONS INVOLVED IN THE ADMINISTRATION OF THE
FEDERAL POWER ACT.  349 U.S. 937. 

THE FIRST QUESTION BEFORE US IS WHETHER PG&E'S UNILATERAL FILING OF
THE NEW RATE UNDER SEC. 205(D), AND THE APPROVAL OF THE NEW RATE BY THE
COMMISSION UNDER SEC. 205(E), WERE EFFECTIVE TO SUPERSEDE PG&E'S
CONTRACT WITH SIERRA.  WE THINK NOT.  AS THE PARTIES CONCEDE, THE
PROVISIONS OF THE FEDERAL POWER ACT RELEVANT TO THIS QUESTION ARE IN
ALL MATERIAL RESPECTS SUBSTANTIALLY IDENTICAL TO THE EQUIVALENT
PROVISIONS OF THE NATURAL GAS ACT.  IN UNITED GAS PIPE LINE CO. V.
MOBILE GAS SERVICE CORP., SUPRA, DECIDED TODAY, WE CONSTRUED THE
NATURAL GAS ACT AS NOT AUTHORIZING UNILATERAL CONTRACT CHANGES, AND
THAT INTERPRETATION IS EQUALLY APPLICABLE TO THE FEDERAL POWER ACT. 
ACCORDINGLY, FOR THE REASONS THERE GIVEN, WE CONCLUDE THAT NEITHER
PG&E'S FILING OF THE NEW RATE NOR THE COMMISSION'S FINDING THAT THE NEW
RATE WAS NOT UNLAWFUL WAS EFFECTIVE TO CHANGE PG&E'S CONTRACT WITH
SIERRA. 

THIS CASE, HOWEVER, RAISES A FURTHER QUESTION NOT PRESENT IN THE
MOBILE CASE.  THE COMMISSION HAS UNDOUBTED POWER UNDER SEC. 206(A) TO
PRESCRIBE A CHANGE IN CONTRACT RATES WHENEVER IT DETERMINES SUCH RATES
TO BE UNLAWFUL.  WHILE THIS POWER IS LIMITED TO PRESCRIBING THE RATE
"TO BE THEREAFTER OBSERVED" AND THUS CAN EFFECT NO CHANGE PRIOR TO THE
DATE OF THE ORDER, THE COMMISSION'S ORDER HERE, IF BASED ON THE
NECESSARY FINDINGS, COULD HAVE BEEN EFFECTIVE TO PRESCRIBE THE PROPOSED
RATE AS THE RATE TO BE IN EFFECT PROSPECTIVELY FROM THE DATE OF THE
ORDER, JUNE 17, 1954.  IF THE PROCEEDINGS HERE SATISFIED IN SUBSTANCE
THE REQUIREMENTS OF SEC. 206(A), IT WOULD SEEM IMMATERIAL THAT THE
INVESTIGATION WAS BEGUN AS ONE INTO THE REASONABLENESS OF THE PROPOSED
RATE RATHER THAN THE EXISTING CONTRACT RATE. 

THE CONDITION PRECEDENT TO THE COMMISSION'S EXERCISE OF ITS POWER
UNDER SEC. 206(A) IS A FINDING THAT THE EXISTING RATE IS "UNJUST,
UNREASONABLE, UNDULY DISCRIMINATORY OR PREFERENTIAL."  PETITIONERS
CONTEND THAT THE COMMISSION DID IN FACT MAKE SUCH A FINDING.  IT WAS
STIPULATED IN THE PROCEEDINGS BEFORE THE COMMISSION THAT 5.5% WAS
NORMALLY A REASONABLE RATE OF RETURN FOR PG&E'S OPERATIONS, THAT THE
CONTRACT RATE WOULD PRODUCE A 2.6% RATE OF RETURN, AND THAT THE
PROPOSED RATE WOULD PRODUCE A 4.75% RATE OF RETURN.  THE COMMISSION
CONCLUDED THAT THE PROPOSED RATE WAS NOT UNREASONABLY HIGH BECAUSE IT
PROVIDED NO MORE THAN A FAIR RETURN AND WAS NOT UNREASONABLY LOW
BECAUSE THE 0.75% DEFICIENCY OF ITS YIELD FROM THE STIPULATED
REASONABLE RATE OF RETURN WAS NOT BEING MADE UP ON OTHER SALES AND WAS
JUSTIFIED IN ORDER TO RETAIN BUSINESS THE LOSS OF WHICH BY PG&E WOULD
RESULT IN IDLE FACILITIES.  IT ALSO CONCLUDED THAT THE PROPOSED RATE
WAS NOT UNDULY DISCRIMINATORY OR PREFERENTIAL, DESPITE SUBSTANTIAL
DIFFERENCES BETWEEN IT AND THE RATES BEING CHARGED OTHER CUSTOMERS. 
WHILE NO FURTHER FINDINGS WERE NECESSARY IN VIEW OF THE COMMISSION'S
INTERPRETATION OF THE ACT AS PERMITTING UNILATERAL CONTRACT CHANGES,
THE COMMISSION WENT ON TO SAY: 

"HOWEVER, WE MAY POINT OUT THAT IF A FINDING ON THE LAWFULNESS OF THE
1948 CONTRACT RATE WERE NECESSARY OR APPROPRIATE, ON THE RECORD BEFORE
US THAT FINDING WOULD HAVE TO BE THAT THE 1948 RATE IS UNREASONABLY LOW
AND THEREFORE UNLAWFUL.  FOR NONE OF THE EVIDENCE IN THIS RECORD
WARRANTS A FINDING THAT ANY RATE WOULD BE REASONABLE THAT WOULD PRODUCE
A RETURN OF SUBSTANTIALLY LESS THAN THE 4.75% RESULTING FROM THE
PROPOSED RATE, WHICH IS THE MINIMUM PG&E IS WILLING TO ACCEPT." 

IT IS CONTENDED THAT BY THIS STATEMENT THE COMMISSION IN SUBSTANCE
FOUND THAT THE EXISTING CONTRACT RATE WAS "UNREASONABLE" AND FIXED THE
PROPOSED RATE AS "THE JUST AND REASONABLE RATE," THEREBY SATISFYING THE
REQUIREMENTS OF SEC. 206(A). 

BUT EVEN ACCEPTING THIS STATEMENT AS A FINDING OF UNREASONABLENESS OF
THE CONTRACT RATE, THE COMMISSION'S CONCLUSION APPEARS ON ITS FACE TO
BE BASED ON AN ERRONEOUS STANDARD.  IN SHORT, THE COMMISSION HOLDS THAT
THE CONTRACT RATE IS UNREASONABLE SOLELY BECAUSE IT YIELDS LESS THAN A
FAIR RETURN ON THE NET INVESTED CAPITAL.  BUT, WHILE IT MAY BE THAT THE
COMMISSION MAY NOT NORMALLY IMPOSE UPON A PUBLIC UTILITY A RATE WHICH
WOULD PRODUCE LESS THAN A FAIR RETURN, IT DOES NOT FOLLOW THAT THE
PUBLIC UTILITY MAY NOT ITSELF AGREE BY CONTRACT TO A RATE AFFORDING
LESS THAN A FAIR RETURN OR THAT, IF IT DOES SO, IT IS ENTITLED TO BE
RELIEVED OF ITS IMPROVIDENT BARGAIN.  CF. ARKANSAS NATURAL GAS CO. V.
RAILROAD COMM'N, 261 U.S. 379.  IN SUCH CIRCUMSTANCES THE SOLE CONCERN
OF THE COMMISSION WOULD SEEM TO BE WHETHER THE RATE IS SO LOW AS TO
ADVERSELY AFFECT THE PUBLIC INTEREST - AS WHERE IT MIGHT IMPAIR THE
FINANCIAL ABILITY OF THE PUBLIC UTILITY TO CONTINUE ITS SERVICE, CAST
UPON OTHER CONSUMERS AN EXCESSIVE BURDEN, OR BE UNDULY DISCRIMINATORY. 
THAT THE PURPOSE OF THE POWER GIVEN THE COMMISSION BY SEC. 206(A) IS
THE PROTECTION OF THE PUBLIC INTEREST, AS DISTINGUISHED FROM THE
PRIVATE INTERESTS OF THE UTILITIES, IS EVIDENCED BY THE RECITAL IN SEC.
201 OF THE ACT THAT THE SCHEME OF REGULATION IMPOSED "IS NECESSARY IN
THE PUBLIC INTEREST."  WHEN SEC. 206(A) IS READ IN THE LIGHT OF THIS
PURPOSE, IT IS CLEAR THAT A CONTRACT MAY NOT BE SAID TO BE EITHER
"UNJUST" OR "UNREASONABLE" SIMPLY BECAUSE IT IS UNPROFITABLE TO THE
PUBLIC UTILITY. 

WHETHER UNDER THE FACTS OF THIS CASE THE CONTRACT RATE IS SO LOW AS
TO HAVE AN ADVERSE EFFECT ON THE PUBLIC INTEREST IS OF COURSE A
QUESTION TO BE DETERMINED IN THE FIRST INSTANCE BY THE COMMISSION.  WE
SHALL THEREFORE AFFIRM THE ORDER OF THE COURT OF APPEALS, WITH
INSTRUCTIONS TO REMAND THE CASE TO THE FEDERAL POWER COMMISSION FOR
SUCH FURTHER PROCEEDINGS, NOT INCONSISTENT WITH THIS OPINION, AS THE
COMMISSION MAY DEEM DESIRABLE.  IT IS SO ORDERED. 

FN1  "SEC.  205.  ...  (C)  UNDER SUCH RULES AND REGULATIONS AS THE
COMMISSION MAY PRESCRIBE, EVERY PUBLIC UTILITY SHALL FILE WITH THE
COMMISSION, WITHIN SUCH TIME AND IN SUCH FORM AS THE COMMISSION MAY
DESIGNATE, AND SHALL KEEP OPEN IN CONVENIENT FORM AND PLACE FOR PUBLIC
INSPECTION SCHEDULES SHOWING ALL RATES AND CHARGES FOR ANY TRANSMISSION
OR SALE SUBJECT TO THE JURISDICTION OF THE COMMISSION, AND THE
CLASSIFICATIONS, PRACTICES, AND REGULATIONS AFFECTING SUCH RATES AND
CHARGES, TOGETHER WITH ALL CONTRACTS WHICH IN ANY MANNER AFFECT OR
RELATE TO SUCH RATES, CHARGES, CLASSIFICATIONS, AND SERVICES. 

"(D)  UNLESS THE COMMISSION OTHERWISE ORDERS, NO CHANGE SHALL BE MADE
BY ANY PUBLIC UTILITY IN ANY SUCH RATE, CHARGE, CLASSIFICATION, OR
SERVICE, OR IN ANY RULE, REGULATION, OR CONTRACT RELATING THERETO,
EXCEPT AFTER THIRTY DAYS' NOTICE TO THE COMMISSION AND TO THE PUBLIC. 
SUCH NOTICE SHALL BE GIVEN BY FILING WITH THE COMMISSION AND KEEPING
OPEN FOR PUBLIC INSPECTION NEW SCHEDULES STATING PLAINLY THE CHANGE OR
CHANGES TO BE MADE IN THE SCHEDULE OR SCHEDULES THEN IN FORCE AND THE
TIME WHEN THE CHANGE OR CHANGES WILL GO INTO EFFECT.  THE COMMISSION,
FOR GOOD CAUSE SHOWN, MAY ALLOW CHANGES TO TAKE EFFECT WITHOUT
REQUIRING THE THIRTY DAYS' NOTICE HEREIN PROVIDED FOR BY AN ORDER
SPECIFYING THE CHANGES SO TO BE MADE AND THE TIME WHEN THEY SHALL TAKE
EFFECT AND THE MANNER IN WHICH THEY SHALL BE FILED AND PUBLISHED. 

"(E)  WHENEVER ANY SUCH NEW SCHEDULE IS FILED THE COMMISSION SHALL
HAVE AUTHORITY, EITHER UPON COMPLAINT OR UPON ITS OWN INITIATIVE
WITHOUT COMPLAINT, AT ONCE, AND, IF IT SO ORDERS, WITHOUT ANSWER OR
FORMAL PLEADING BY THE PUBLIC UTILITY, BUT UPON REASONABLE NOTICE, TO
ENTER UPON A HEARING CONCERNING THE LAWFULNESS OF SUCH RATE, CHARGE,
CLASSIFICATION, OR SERVICE; AND, PENDING SUCH HEARING AND THE DECISION
THEREON, THE COMMISSION, UPON FILING WITH SUCH SCHEDULES AND DELIVERING
TO THE PUBLIC UTILITY AFFECTED THEREBY A STATEMENT IN WRITING OF ITS
REASONS FOR SUCH SUSPENSION, MAY SUSPEND THE OPERATION OF SUCH SCHEDULE
AND DEFER THE USE OF SUCH RATE, CHARGE, CLASSIFICATION, OR SERVICE, BUT
NOT FOR A LONGER PERIOD THAN FIVE MONTHS BEYOND THE TIME WHEN IT WOULD
OTHERWISE GO INTO EFFECT; AND AFTER FULL HEARINGS, EITHER COMPLETED
BEFORE OR AFTER THE RATE, CHARGE, CLASSIFICATION, OR SERVICE GOES INTO
EFFECT, THE COMMISSION MAY MAKE SUCH ORDERS WITH REFERENCE THERETO AS
WOULD BE PROPER IN A PROCEEDING INITIATED AFTER IT HAD BECOME
EFFECTIVE.  IF THE PROCEEDING HAS NOT BEEN CONCLUDED AND AN ORDER MADE
AT THE EXPIRATION OF SUCH FIVE MONTHS, THE PROPOSED CHANGE OF RATE,
CHARGE, CLASSIFICATION, OR SERVICE SHALL GO INTO EFFECT AT THE END OF
SUCH PERIOD, BUT IN CASE OF A PROPOSED INCREASED RATE OR CHARGE, THE
COMMISSION MAY BY ORDER REQUIRE THE INTERESTED PUBLIC UTILITY OR PUBLIC
UTILITIES TO KEEP ACCURATE ACCOUNT IN DETAIL OF ALL AMOUNTS RECEIVED BY
REASON OF SUCH INCREASE, SPECIFYING BY WHOM AND IN WHOSE BEHALF SUCH
AMOUNTS ARE PAID, AND UPON COMPLETION OF THE HEARING AND DECISION MAY
BY FURTHER ORDER REQUIRE SUCH PUBLIC UTILITY OR PUBLIC UTILITIES TO
REFUND, WITH INTEREST, TO THE PERSONS IN WHOSE BEHALF SUCH AMOUNTS WERE
PAID, SUCH PORTION OF SUCH INCREASED RATES OR CHARGES AS BY ITS
DECISION SHALL BE FOUND NOT JUSTIFIED.  AT ANY HEARING INVOLVING A RATE
OR CHARGE SOUGHT TO BE INCREASED, THE BURDEN OF PROOF TO SHOW THAT THE
INCREASED RATE OR CHARGE IS JUST AND REASONABLE SHALL BE UPON THE
PUBLIC UTILITY, AND THE COMMISSION SHALL GIVE TO THE HEARING AND
DECISION OF SUCH QUESTIONS PREFERENCE OVER OTHER QUESTIONS PENDING
BEFORE IT AND DECIDE THE SAME AS SPEEDILY AS POSSIBLE."  49 STAT. 851
852, 16 U.S.C. SEC. 824D. 

"SEC. 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."  49 STAT. 852, 16 U.S.C. SEC. 824E.    FN2  SET
FORTH AS FOOTNOTE 1 TO THE OPINION IN THE MOBILE CASE, ANTE, P. 334. 
..END :


















GIBSON V. LOCKHEED AIRCRAFT SERVICE, INC. 350 U.S. 356 


NO. 42.  ARGUED DECEMBER 5-6, 1955 - DECIDED FEBRUARY 27, 1956 - 217
F.2D 730, REVERSED. 


1.  IN THIS CASE, IN WHICH PETITIONER RECOVERED A JUDGMENT AGAINST
RESPONDENT IN A PERSONAL-INJURIES ACTION IN A FEDERAL DISTRICT COURT,
THE INSTRUCTIONS GIVEN TO THE JURY BY THE TRIAL COURT WERE COMPLETE AND
CORRECT, AND THERE WAS NO ERROR IN REFUSING THE ADDITIONAL INSTRUCTIONS
REQUESTED BY RESPONDENT.  PP. 356-357. 

2.  IN THE EXERCISE OF THE SUPERVISORY POWERS OF THIS COURT OVER THE
LOWER FEDERAL COURTS, THE JUDGMENT OF THE COURT OF APPEALS, REVERSING
THE JUDGMENT OF THE DISTRICT COURT AND REMANDING THE CASE FOR A NEW
TRIAL, IS REVERSED IN THE INTEREST OF JUSTICE, AND THE JUDGMENT OF THE
DISTRICT COURT IS REINSTATED.  P. 357. 

GIBSON V. LOCKHEED AIRCRAFT SERVICE, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

PETITIONER GIBSON RECOVERED JUDGMENT IN A PERSONAL INJURIES ACTION
AGAINST THE LOCKHEED COMPANY IN A UNITED STATES DISTRICT COURT.  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED AND REMANDED FOR A NEW
TRIAL ON THE GROUND THAT FOUR INSTRUCTIONS REQUESTED BY LOCKHEED AND
REFUSED BY THE TRIAL COURT SHOULD HAVE BEEN GIVEN.  217 F.2D 730.  WE
GRANTED CERTIORARI, 349 U.S. 943, TO CONSIDER THE FOLLOWING QUESTIONS: 

(1)  WHETHER LOCKHEED'S OBJECTION TO THE TRIAL COURT'S REFUSAL TO
GIVE ITS REQUESTED INSTRUCTIONS COMPLIED WITH RULE 51 OF THE FEDERAL
RULES OF CIVIL PROCEDURE. 

(2)  WHETHER THE REFUSAL OF THE TRIAL COURT TO CHARGE AS REQUESTED BY
RESPONDENT LOCKHEED WAS PREJUDICIAL ERROR REQUIRING REVERSAL. 

A THOROUGH CONSIDERATION OF THE RECORD CONVINCES US THAT THE CHARGE
AS GIVEN BY THE TRIAL COURT WAS BOTH COMPLETE AND CORRECT.  CF.
DISTRICT OF COLUMBIA V. WOODBURY, 136 U.S. 450, 466.  THERE WAS NO
ERROR IN REFUSING THE REQUESTED INSTRUCTIONS.  WE CONSIDER THIS TO BE A
CASE WHERE, IN THE EXERCISE OF OUR SUPERVISORY POWERS OVER THE LOWER
FEDERAL COURTS, THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE REVERSED
IN THE INTERESTS OF JUSTICE, AND THAT OF THE DISTRICT COURT
REINSTATED.  ACCORDINGLY, WE FIND IT UNNECESSARY TO CONSIDER THE
QUESTION PRESENTED AS TO RULE 51.  REVERSED. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE CONTROLLING CLAIM ON WHICH PETITIONER SOUGHT CERTIORARI WAS THAT
THE DECISION OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT DISCLOSED
CONFLICT AND CONFUSION AMONG THE CIRCUITS IN THE APPLICATION OF RULE 51
OF THE FEDERAL RULES OF CIVIL PROCEDURE.  WE GRANTED THE PETITION.  A
CRITICAL EXAMINATION OF THE 118 DECISIONS ON WHICH THE PETITIONER
RELIED IN HIS CLAIM REGARDING RULE 51 CONVINCES ME THAT THERE WAS NO
SUCH CONFLICT AND CONFUSION.  THEREFORE, FOR THE REASONS SET FORTH BY
MR. CHIEF JUSTICE TAFT ON BEHALF OF THE COURT IN LAYNE & BOWLER CORP.
V. WESTERN WELL WORKS, INC., 261 U.S. 387, THE WRIT SHOULD BE DISMISSED
AS IMPROVIDENTLY GRANTED EVEN THOUGH FULL ARGUMENT HAS BEEN HAD.  BUT
MY BRETHREN FIND THAT CERTAIN RULINGS OF THE COURT OF APPEALS INVOLVING
ORDINARY QUESTIONS IN THE LAW OF NEGLIGENCE, WHICH BY THEMSELVES NEVER
WOULD HAVE WARRANTED THE GRANTING OF A WRIT, ARE SO OBVIOUSLY AND
INJURIOUSLY ERRONEOUS, "AS TO CALL FOR AN EXERCISE OF THIS COURT'S
POWER OF SUPERVISION."  THIS IS OF COURSE ONE OF THE CONSIDERATIONS
WITHIN OUR RULE GOVERNING REVIEW ON CERTIORARI.  RULE 19(1)(B).  I
ACCEPT THEIR READING OF THE RECORD AND THEREFORE JOIN IN THE JUDGMENT
OF THE COURT. 
..END :





STEINER, DOING BUSINESS AS CUMBERLAND BATTERY MANUFACTURING CO. V.
MITCHELL 350 U.S. 247 


NO. 22.  ARGUED NOVEMBER 16, 1955 - DECIDED JANUARY 30, 1956 - 215 F.2D
171, AFFIRMED. 


WORKERS IN A PLANT MANUFACTURING WET STORAGE BATTERIES, IN WHICH
EXTENSIVE USE IS MADE OF DANGEROUSLY CAUSTIC AND TOXIC MATERIALS, ARE
COMPELLED BY VITAL CONSIDERATIONS OF HEALTH AND HYGIENE AND BY OTHER
CONSIDERATIONS TO CHANGE CLOTHES BEFORE AND AFTER WORK AND TO SHOWER
AFTER WORK IN FACILITIES WHICH STATE LAW REQUIRES THEIR EMPLOYER TO
PROVIDE.  HELD:  CHANGING CLOTHES AND SHOWERING ARE PARTS OF THEIR
"PRINCIPAL," RATHER THAN THEIR "PRELIMINARY" OR "POSTLIMINARY,"
ACTIVITIES, WITHIN THE MEANING OF SEC. 4(A)(2) OF THE PORTAL-TO-PORTAL
ACT, AND THE TIME SPENT IN THESE ACTIVITIES MUST BE COUNTED IN
MEASURING THE WORK-TIME FOR WHICH COMPENSATION IS REQUIRED BY THE FAIR
LABOR STANDARDS ACT.  PP. 248-256. 

(A)  ACTIVITIES PERFORMED EITHER BEFORE OR AFTER THE REGULAR WORK
SHIFT, ON OR OFF THE PRODUCTION LINE, ARE COMPENSABLE UNDER THE PORTAL
TO-PORTAL PROVISIONS OF THE FAIR LABOR STANDARDS ACT, IF THOSE
ACTIVITIES ARE AN INTEGRAL AND INDISPENSABLE PART OF THE PRINCIPAL
ACTIVITIES FOR WHICH COVERED WORKMEN ARE EMPLOYED AND ARE NOT
SPECIFICALLY EXCLUDED BY SEC. 4(A)(1).  P. 256. 

(B)  THE CONCLUSION HERE REACHED IS SUPPORTED BY THE LEGISLATIVE
HISTORY OF THE PORTAL-TO-PORTAL ACT AND BY OTHER PROVISIONS OF THE ACT
AND AMENDMENTS THERETO.  PP. 253-256. 

(C)  ON THE FACTS OF THIS CASE, CHANGING CLOTHES AND SHOWERING BY
THESE EMPLOYEES CLEARLY ARE INTEGRAL AND INDISPENSABLE PARTS OF THE
PRINCIPAL ACTIVITY OF THEIR EMPLOYMENT.  PP.  249-252, 256. 

STEINER ET AL., DOING BUSINESS AS CUMBERLAND BATTERY MANUFACTURING CO.,
V. MITCHELL, SECRETARY OF LABOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES AN ISSUE OF COVERAGE UNDER THE FAIR LABOR STANDARDS
ACT, AS AMENDED BY THE PORTAL-TO-PORTAL ACT OF 1947, WITH RESPECT TO
WORK PERFORMED BEFORE OR AFTER THE DIRECT OR PRODUCTIVE LABOR FOR WHICH
THE WORKER IS PRIMARILY PAID. 

THE PRECISE QUESTION IS WHETHER WORKERS IN A BATTERY PLANT MUST BE
PAID AS A PART OF THEIR "PRINCIPAL" ACTIVITIES FOR THE TIME INCIDENT TO
CHANGING CLOTHES AT THE BEGINNING OF THE SHIFT AND SHOWERING AT THE
END, WHERE THEY MUST MAKE EXTENSIVE USE OF DANGEROUSLY CAUSTIC AND
TOXIC MATERIALS, AND ARE COMPELLED BY CIRCUMSTANCES, INCLUDING VITAL
CONSIDERATIONS OF HEALTH AND HYGIENE, TO CHANGE CLOTHES AND TO SHOWER
IN FACILITIES WHICH STATE LAW REQUIRES THEIR EMPLOYER TO PROVIDE, OR
WHETHER THESE ACTIVITIES ARE "PRELIMINARY" OR "POSTLIMINARY" WITHIN THE
MEANING OF THE PORTAL-TO-PORTAL ACT AND, THEREFORE, NOT TO BE INCLUDED
IN MEASURING THE WORK TIME FOR WHICH COMPENSATION IS REQUIRED UNDER THE
FAIR LABOR STANDARDS ACT. 

THE SECRETARY OF LABOR, CONTENDING THAT THESE ACTIVITIES ARE SO
COVERED, BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE TO ENJOIN PETITIONERS FROM VIOLATING
THE OVERTIME AND RECORDKEEPING REQUIREMENTS OF SECTIONS 7 AND 11(C) OF
THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, IN THE EMPLOYMENT OF
PRODUCTION WORKERS, AND FROM VIOLATING SECTION 15(A)(1) OF THE ACT BY
MAKING INTERSTATE SHIPMENTS OF THE GOODS PRODUCED BY SUCH WORKERS. 

THE DISTRICT COURT GAVE JUDGMENT FOR THE PLAINTIFF, AND THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT AFFIRMED.  215 F.2D 171.  BECAUSE OF THE
IMPORTANCE OF THE INTERPRETATION OF THE PORTAL-TO-PORTAL PROVISIONS IN
THE ADMINISTRATION OF THE FAIR LABOR STANDARDS ACT, AND BECAUSE OF A
CONFLICT BETWEEN THE CIRCUITS ON THE SUBJECT, MITCHELL V. KING PACKING
CO., 216 F.2D 618, WE GRANTED CERTIORARI IN BOTH CASES, 349 U.S. 914. 

THERE IS NO QUESTION OF BACK PAY INVOLVED HERE BECAUSE THE COURT
LIMITED ITS JUDGMENT TO PROSPECTIVE RELIEF.  NOR IS THE QUESTION OF
CHANGING CLOTHES AND SHOWERING UNDER NORMAL CONDITIONS INVOLVED BECAUSE
THE GOVERNMENT CONCEDES THAT THESE ACTIVITIES ORDINARILY CONSTITUTE
"PRELIMINARY" OR "POSTLIMINARY" ACTIVITIES EXCLUDED FROM COMPENSABLE
WORK TIME AS CONTEMPLATED IN THE ACT.  IT CONTENDS, HOWEVER, THAT SUCH
ACTIVITIES IN THE CIRCUMSTANCES OF THIS CASE ARE AN INTEGRAL AND
INDISPENSABLE PART OF THE PRODUCTION OF BATTERIES, THE "PRINCIPAL
ACTIVITY" IN WHICH THESE EMPLOYEES WERE ENGAGED, AND ARE, THEREFORE,
COMPENSABLE UNDER THE RELEVANT PROVISIONS OF THE ACT. 

THE PETITIONERS OWN AND OPERATE A PLANT WHERE THEY ARE ENGAGED IN
MANUFACTURING AUTOMOTIVE-TYPE WET STORAGE BATTERIES WHICH THEY SELL IN
INTERSTATE COMMERCE.  ALL OF THE PRODUCTION EMPLOYEES, SUCH AS THOSE
WITH WHOM WE ARE HERE CONCERNED, CUSTOMARILY WORK WITH OR NEAR THE
VARIOUS CHEMICALS USED IN THE PLANT.  THESE INCLUDE LEAD METAL, LEAD
OXIDE, LEAD SULPHATE, LEAD PEROXIDE, AND SULPHURIC ACID.  SOME OF THESE
ARE IN LIQUID FORM; SOME ARE IN POWDER FORM, AND SOME ARE SOLID.  IN
THE MANUFACTURING PROCESS, SOME OF THE MATERIALS GO THROUGH VARIOUS
CHANGES AND GIVE OFF DANGEROUS FUMES.  SOME ARE SPILLED OR DROPPED, AND
THUS BECOME A PART OF THE DUST IN THE AIR.  IN GENERAL, THE CHEMICALS
PERMEATE THE ENTIRE PLANT AND EVERYTHING AND EVERYONE IN IT.  LEAD AND
ITS COMPOUNDS ARE TOXIC TO HUMAN BEINGS.  REGULAR EXPOSURE TO
ATMOSPHERE CONTAINING 1.5 MILLIGRAMS OR MORE OF LEAD PER 10 CUBIC
METERS IS REGARDED BY THE MEDICAL PROFESSION AS HAZARDOUS AND INVOLVING
THE POSSIBILITY OF LEAD INTOXICATION OR LEAD POISONING.  IN BATTERY
PLANTS, SUCH AS THIS ONE, IT IS "ALMOST IMPOSSIBLE," IT WAS TESTIFIED,
TO KEEP LEAD CONCENTRATION IN THE AIR "WITHIN ABSOLUTELY SAFE LIMITS,"
AND IN PETITIONERS' PLANT "LEAD OXIDE WAS ON THE FLOOR AND IN THE AIR
AND ON THE PLATES WHICH EMPLOYEES HANDLED."  ABNORMAL CONCENTRATIONS OF
LEAD WERE DISCOVERED IN THE BODIES OF SOME OF PETITIONERS' EMPLOYEES,
AND PETITIONERS' INSURANCE DOCTOR RECOMMENDED THAT SUCH EMPLOYEES BE
SEGREGATED FROM THEIR CUSTOMARY DUTIES.  THE PRIMARY WAYS IN WHICH LEAD
POISONING IS CONTRACTED ARE BY INHALATION AND INGESTION; I.E., BY
TAKING IN PARTICLES THROUGH THE NOSE OR MOUTH, AN OPEN CUT OR SORE, OR
ANY OTHER BODY CAVITY.  THE RISK IS "VERY GREAT" AND EVEN EXISTS
OUTSIDE THE PLANT BECAUSE THE LEAD DUST AND LEAD FUMES WHICH ARE
PREVALENT IN THE PLANT ATTACH THEMSELVES TO THE SKIN, CLOTHING AND HAIR
OF THE EMPLOYEES.  EVEN THE FAMILIES OF BATTERY WORKERS MAY BE PLACED
IN SOME DANGER IF LEAD PARTICLES ARE BROUGHT HOME IN THE WORKERS'
CLOTHING OR SHOES.  SULPHURIC ACID IN THE PLANT IS ALSO A HAZARD.  IT
IS IRRITATING TO THE SKIN AND CAN CAUSE SEVERE BURNS.  WHEN THE ACID
CONTACTS CLOTHING, IT CAUSES DISINTEGRATION OR RAPID DETERIORATION. 
MOREOVER, THE EFFECTS OF SULPHURIC ACID MAKE THE EMPLOYEE MORE
SUSCEPTIBLE THAN HE WOULD OTHERWISE BE TO CONTAMINATION BY PARTICLES OF
LEAD AND LEAD COMPOUNDS. 

PETITIONERS, LIKE OTHER MANUFACTURERS, TRY TO MINIMIZE THESE HAZARDS
BY PLANT VENTILATION, BUT INDUSTRIAL AND MEDICAL EXPERTS ARE IN
AGREEMENT THAT VENTILATION ALONE IS NOT SUFFICIENT TO AVOID THE DANGERS
OF LEAD POISONING.  SAFE OPERATION ALSO REQUIRES THE REMOVAL OF
CLOTHING AND SHOWERING AT THE END OF THE WORK PERIOD.  THIS HAS BECOME
A RECOGNIZED PART OF INDUSTRIAL HYGIENE PROGRAMS IN THE INDUSTRY, AND
THE STATE LAW OF TENNESSEE REQUIRES FACILITIES FOR THIS PURPOSE.  TENN.
CODE ANN. (WILLIAMS 1934), 1952 SUPP., SECTION 5788.15.  IN ADDITION,
THE TENNESSEE WORKMEN'S COMPENSATION ACT, TENN. CODE ANN. (WILLIAMS
1934), 1952 SUPP., SECTIONS 6851-6901, WHICH COVERS PETITIONERS, MAKES
LEAD POISONING A COMPENSABLE OCCUPATIONAL DISEASE (SECTION 6852(D)). 
IN ORDER TO COMPLY WITH THIS STATUTE, PETITIONERS CARRY INSURANCE,
UNDER SECTION 6895, TO PROTECT AGAINST LIABILITY, AND THE INSURANCE
CARRIER WOULD NOT ACCEPT THE INSURANCE RISK IF DEFENDANTS REFUSED TO
HAVE SHOWERING AND CLOTHES-CHANGING FACILITIES FOR THEIR EMPLOYEES. 

ACCORDINGLY, IN ORDER TO MAKE THEIR PLANT AS SAFE A PLACE AS POSSIBLE
UNDER THE CIRCUMSTANCES AND THEREBY INCREASE THE EFFICIENCY OF ITS
OPERATION, PETITIONERS HAVE EQUIPPED IT WITH SHOWER FACILITIES AND A
LOCKER ROOM WITH SEPARATE LOCKERS FOR WORK AND STREET CLOTHING.  ALSO,
THEY FURNISH WITHOUT CHARGE OLD BUT CLEAN WORK CLOTHES WHICH THE
EMPLOYEES WEAR.  THE COST OF PROVIDING THEIR OWN WORK CLOTHING WOULD BE
PROHIBITIVE FOR THE EMPLOYEES, SINCE THE ACID CAUSES SUCH RAPID
DETERIORATION THAT THE CLOTHES SOMETIMES LAST ONLY A FEW DAYS. 
EMPLOYEES REGULARLY CHANGE INTO WORK CLOTHES BEFORE THE BEGINNING OF
THE PRODUCTIVE WORK PERIOD, AND SHOWER AND CHANGE BACK AT THE END OF
THAT PERIOD.  (FN1) 

PETITIONERS ISSUED NO WRITTEN INSTRUCTIONS TO EMPLOYEES ON THIS
SUBJECT, BUT THE EMPLOYEES TESTIFIED AND THE FOREMAN DECLARED IN A
SIGNED STATEMENT THAT "IN THE AFTERNOON THE MEN ARE REQUIRED BY THE
COMPANY TO TAKE A BATH BECAUSE LEAD OXIDE MIGHT BE ABSORBED INTO THE
BLOOD STREAM.  IT PROTECTS THE COMPANY AND THE EMPLOYEE BOTH." 
PETITIONERS DO NOT RECORD OR PAY FOR THE TIME WHICH THEIR EMPLOYEES
SPEND IN THESE ACTIVITIES, WHICH WAS FOUND TO AMOUNT TO THIRTY MINUTES
A DAY, TEN MINUTES IN THE MORNING AND TWENTY MINUTES IN THE AFTERNOON,
FOR EACH EMPLOYEE.  THEY DO NOT CHALLENGE THE CONCURRENT FINDINGS OF
THE COURTS BELOW THAT THE CLOTHES-CHANGING AND SHOWERING ACTIVITIES OF
THE EMPLOYEES ARE INDISPENSABLE TO THE PERFORMANCE OF THEIR PRODUCTIVE
WORK AND INTEGRALLY RELATED THERETO.  THEY DO CONTEND THAT THESE
ACTIVITIES FALL WITHOUT THE CONCEPT OF "PRINCIPAL ACTIVITY" AND THAT,
BEING PERFORMED OFF THE PRODUCTION LINE AND BEFORE OR AFTER REGULAR
SHIFT HOURS, THEY ARE BEYOND THE PROTECTION OF THE FAIR LABOR STANDARDS
ACT. 

THE TRIAL COURT HELD THAT THESE ACTIVITIES "ARE MADE NECESSARY BY THE
NATURE OF THE WORK PERFORMED"; THAT THEY FULFILL "MUTUAL OBLIGATIONS"
BETWEEN PETITIONERS AND THEIR EMPLOYEES; THAT THEY "DIRECTLY BENEFIT"
PETITIONERS IN THE OPERATION OF THEIR BUSINESS, AND THAT THEY "ARE SO
CLOSELY RELATED TO OTHER DUTIES PERFORMED BY PETITIONERS' EMPLOYEES AS
TO BE AN INTEGRAL PART THEREOF AND ARE, THEREFORE, INCLUDED AMONG THE
PRINCIPAL ACTIVITIES OF SAID EMPLOYEES."  IT CONCLUDED THAT THE TIME
THEREBY CONSUMED IS NOT EXCLUDED FROM COVERAGE BY SECTION 4 OF THE
PORTAL-TO-PORTAL ACT, BUT CONSTITUTES TIME WORKED WITHIN THE MEANING OF
THE FAIR LABOR STANDARDS ACT.  THE COURT OF APPEALS AFFIRMED, LIKEWISE
HOLDING THAT THE TERM "PRINCIPAL ACTIVITY OR ACTIVITIES" IN SECTION 4
(FN2) EMBRACES ALL ACTIVITIES WHICH ARE "AN INTEGRAL AND INDISPENSABLE
PART OF THE PRINCIPAL ACTIVITIES," AND THAT THE ACTIVITIES IN QUESTION
FALL WITHIN THIS CATEGORY. 

WITH THIS CONCLUSION, WE AGREE. 

THE PORTAL-TO-PORTAL ACT WAS DESIGNED PRIMARILY TO MEET AN "EXISTING
EMERGENCY" RESULTING FROM CLAIMS WHICH, IF ALLOWED IN ACCORDANCE WITH
ANDERSON V. MT. CLEMENS POTTERY CO., 328 U.S. 680, WOULD HAVE CREATED
"WHOLLY UNEXPECTED LIABILITIES, IMMENSE IN AMOUNT AND RETROACTIVE IN
OPERATION."  (FN3)  THIS PURPOSE WAS FULFILLED BY THE ENACTMENT OF
THIS JUDGMENT TO SERVICES RENDERED AFTER THE JUDGMENT BECOMES FINAL. 
WE ARE NOT, THEREFORE, CONCERNED WITH THE PROVISIONS OF SECTION 2,
WHICH IS INAPPLICABLE TO ACTIONS RELATING TO ACTIVITIES OF EMPLOYEES
PERFORMED AFTER MAY 14, 1947. 

THE LANGUAGE OF SECTION 4 IS NOT FREE FROM AMBIGUITY AND THE
LEGISLATIVE HISTORY OF THE PORTAL-TO-PORTAL ACT BECOMES OF IMPORTANCE. 
THAT ACT ORIGINATED IN A HOUSE BILL, WHICH HAD NO PROVISION COMPARABLE
TO SECTION 4, BUT RATHER GAVE SIMILAR TREATMENT TO RETROACTIVE AND
PROSPECTIVE CLAIMS; I.E., EXCLUDING COVERAGE EXCEPT BY CONTRACT OR
CUSTOM IN THE INDUSTRY.  H.R. REP. NO. 326, 80TH CONG., 1ST SESS. 12. 
THE CONFERENCE REPORT STATED THAT THE LANGUAGE OF SECTION 4 FOLLOWS THE
SENATE BILL.  S. REP. NO. 48, 80TH CONG., 1ST SESS. 48.  IN THE SENATE,
THE COLLOQUY BETWEEN SEVERAL SENATORS AND SENATOR COOPER, A SPONSOR OF
THE BILL AND A MEMBER OF THE THREE-MAN SUBCOMMITTEE THAT HELD HEARINGS
FOR THE COMMITTEE ON THE JUDICIARY WHICH REPORTED IT, DEMONSTRATES THAT
THE SENATE INTENDED THE ACTIVITIES OF CHANGING CLOTHES AND SHOWERING TO
BE WITHIN THE PROTECTION OF THE ACT IF THEY ARE AN INTEGRAL PART OF AND
ARE ESSENTIAL TO THE PRINCIPAL ACTIVITIES OF THE EMPLOYEES.  (FN5) 

THERE IS SOME CONFLICTING HISTORY IN THE HOUSE, (FN6) BUT THE SENATE
DISCUSSION IS MORE CLEAR CUT AND, BECAUSE THE SECTION ORIGINATED IN
THAT BODY, IS MORE PERSUASIVE. 

IN 1949, SECTION 3(O) WAS ADDED TO THE ACT.  (FN7)  BOTH SIDES
APPARENTLY TAKE COMFORT FROM IT, BUT THE POSITION OF THE GOVERNMENT IS
STRENGTHENED BY IT SINCE ITS CLEAR IMPLICATION IS THAT CLOTHES CHANGING
AND WASHING WHICH ARE OTHERWISE A PART OF THE PRINCIPAL ACTIVITY, MAY
BE EXPRESSLY EXCLUDED FROM COVERAGE BY AGREEMENT.  THE CONGRESSIONAL
UNDERSTANDING OF THE SCOPE OF SECTION 4 IS FURTHER MARKED BY THE FACT
THAT THE CONGRESS ALSO ENACTED SECTION 16(C) (FN8) AT THE SAME TIME,
AFTER HEARING FROM THE ADMINISTRATOR HIS OUTSTANDING INTERPRETATION OF
THE COVERAGE OF CERTAIN PREPARATORY ACTIVITIES CLOSELY RELATED TO THE
PRINCIPAL ACTIVITY AND INDISPENSABLE TO ITS PERFORMANCE.  (FN9) 

ON THE WHOLE IT IS CLEAR, WE THINK, THAT WHILE CONGRESS INTENDED TO
OUTLAW CLAIMS PRIOR TO 1947 FOR WAGES BASED ON ALL EMPLOYEE ACTIVITIES
UNLESS PROVIDED FOR BY CONTRACT OR CUSTOM OF THE INDUSTRY, INCLUDING,
OF COURSE, ACTIVITIES PERFORMED BEFORE OR AFTER REGULAR HOURS OF WORK,
IT DID NOT INTEND TO DEPRIVE EMPLOYEES OF THE BENEFITS OF THE FAIR
LABOR STANDARDS ACT WHERE THEY ARE AN INTEGRAL PART OF AND
INDISPENSABLE TO THEIR PRINCIPAL ACTIVITIES.  HAD CONGRESS INTENDED THE
RESULT URGED BY PETITIONER, THE VERY DIFFERENT PROVISIONS OF SECTIONS 2
AND 4 WOULD HAVE BEEN UNNECESSARY; SECTION 2 COULD HAVE BEEN GIVEN
PROSPECTIVE AS WELL AS RETROACTIVE EFFECT. 

WE, THEREFORE, CONCLUDE THAT ACTIVITIES PERFORMED EITHER BEFORE OR
AFTER THE REGULAR WORK SHIFT, ON OR OFF THE PRODUCTION LINE, ARE
COMPENSABLE UNDER THE PORTAL-TO-PORTAL PROVISIONS OF THE FAIR LABOR
STANDARDS ACT IF THOSE ACTIVITIES ARE AN INTEGRAL AND INDISPENSABLE
PART OF THE PRINCIPAL ACTIVITIES FOR WHICH COVERED WORKMEN ARE EMPLOYED
AND ARE NOT SPECIFICALLY EXCLUDED BY SECTION 4(A)(1). 

WE FIND NO DIFFICULTY IN FITTING THE FACTS OF THIS CASE TO THAT
CONCLUSION BECAUSE IT WOULD BE DIFFICULT TO CONJURE UP AN INSTANCE
WHERE CHANGING CLOTHES AND SHOWERING ARE MORE CLEARLY AN INTEGRAL AND
INDISPENSABLE PART OF THE PRINCIPAL ACTIVITY OF THE EMPLOYMENT THAN IN
THE CASE OF THESE EMPLOYEES. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE ONLY EXCEPTION WAS ONE INJURED EMPLOYEE WHO, BECAUSE OF THE
DANGER OF INFECTION TO HIS WOUNDED FOOT IN A COMMON SHOWER, BATHED AT
HIS HOME WHICH IS ABOUT FIVE BLOCKS FROM THE PLANT. 

FN2  "SEC.  4  ...  .    "(A)  EXCEPT AS PROVIDED IN SUBSECTION (B),
NO EMPLOYER SHALL BE SUBJECT TO ANY LIABILITY OR PUNISHMENT UNDER THE
FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, THE WALSH-HEALEY ACT, OR
THE BACON-DAVIS ACT, ON ACCOUNT OF THE FAILURE OF SUCH EMPLOYER TO PAY
AN EMPLOYEE MINIMUM WAGES, OR TO PAY AN EMPLOYEE OVERTIME COMPENSATION,
FOR OR ON ACCOUNT OF ANY OF THE FOLLOWING ACTIVITIES OF SUCH EMPLOYEE
ENGAGED IN ON OR AFTER THE DATE OF THE ENACTMENT OF THIS ACT: 

"(1)  WALKING, RIDING, OR TRAVELING TO AND FROM THE ACTUAL PLACE OF
PERFORMANCE OF THE PRINCIPAL ACTIVITY OR ACTIVITIES WHICH SUCH EMPLOYEE
IS EMPLOYED TO PERFORM, AND: 

"(2)  ACTIVITIES WHICH ARE PRELIMINARY TO OR POSTLIMINARY TO SAID
PRINCIPAL ACTIVITY OR ACTIVITIES, WHICH OCCUR EITHER PRIOR TO THE TIME
ON ANY PARTICULAR WORKDAY AT WHICH SUCH EMPLOYEE COMMENCES, OR
SUBSEQUENT TO THE TIME ON ANY PARTICULAR WORKDAY AT WHICH HE CEASES,
SUCH PRINCIPAL ACTIVITY OR ACTIVITIES. 

"(B)  NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) WHICH RELIEVE
AN EMPLOYER FROM LIABILITY AND PUNISHMENT WITH RESPECT TO AN ACTIVITY,
THE EMPLOYER SHALL NOT BE SO RELIEVED IF SUCH ACTIVITY IS COMPENSABLE
BY EITHER: 

"(1)  AN EXPRESS PROVISION OF A WRITTEN OR NONWRITTEN CONTRACT IN
EFFECT, AT THE TIME OF SUCH ACTIVITY, BETWEEN SUCH EMPLOYEE, HIS AGENT,
OR COLLECTIVE-BARGAINING REPRESENTATIVE AND HIS EMPLOYER; OR: 

"(2) A CUSTOM OR PRACTICE IN EFFECT, AT THE TIME OF SUCH ACTIVITY, AT
THE ESTABLISHMENT OR OTHER PLACE WHERE SUCH EMPLOYEE IS EMPLOYED,
COVERING SUCH ACTIVITY, NOT INCONSISTENT WITH A WRITTEN OR NONWRITTEN
CONTRACT, IN EFFECT AT THE TIME OF SUCH ACTIVITY, BETWEEN SUCH
EMPLOYEE, HIS AGENT, OR COLLECTIVE-BARGAINING REPRESENTATIVE AND HIS
EMPLOYER."  61 STAT.  86, 29 U.S.C. SEC. 254. 

FN3  SEC. 1(A), 61 STAT. 84, 29 U.S.C. SEC. 251(A). 

FN4  "SEC.  2  ...  . 

"(A)  NO EMPLOYER SHALL BE SUBJECT TO ANY LIABILITY OR PUNISHMENT
UNDER THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, THE WALSH
HEALEY ACT, OR THE BACON-DAVIS ACT (IN ANY ACTION OR PROCEEDING
COMMENCED PRIOR TO OR ON OR AFTER THE DATE OF THE ENACTMENT OF THIS ACT
(MAY 14, 1947)), ON ACCOUNT OF THE FAILURE OF SUCH EMPLOYER TO PAY AN
EMPLOYEE MINIMUM WAGES, OR TO PAY AN EMPLOYEE OVERTIME COMPENSATION,
FOR OR ON ACCOUNT OF ANY ACTIVITY OF AN EMPLOYEE ENGAGED IN PRIOR TO
THE DATE OF THE ENACTMENT OF THIS ACT, EXCEPT AN ACTIVITY WHICH WAS
COMPENSABLE BY EITHER: 

"(1)  AN EXPRESS PROVISION OF A WRITTEN OR NONWRITTEN CONTRACT IN
EFFECT, AT THE TIME OF SUCH ACTIVITY, BETWEEN SUCH EMPLOYEE, HIS AGENT,
OR COLLECTIVE-BARGAINING REPRESENTATIVE AND HIS EMPLOYER; OR: 

"(2)  A CUSTOM OR PRACTICE IN EFFECT, AT THE TIME OF SUCH ACTIVITY,
AT THE ESTABLISHMENT OR OTHER PLACE WHERE SUCH EMPLOYEE WAS EMPLOYED,
COVERING SUCH ACTIVITY, NOT INCONSISTENT WITH A WRITTEN OR NONWRITTEN
CONTRACT, IN EFFECT AT THE TIME OF SUCH ACTIVITY, BETWEEN SUCH
EMPLOYEE, HIS AGENT, OR COLLECTIVE-BARGAINING REPRESENTATIVE AND HIS
EMPLOYER."  61 STAT. 85, 29 U.S.C. SEC. 252. 

     *         *         *         *         * 

FN5  SEE THE COLLOQUY QUOTED IN AN APPENDIX TO THIS OPINION, POST, P.
256. 

FN6  SEE REMARKS OF REPRESENTATIVE GWYNNE, 93 CONG. REC. 4388-4389;
REMARKS OF REPRESENTATIVE MICHENER, IBID. 

FN7  "SEC.  3(O).  HOURS WORKED.  - IN DETERMINING FOR THE PURPOSES
OF SECTIONS 6 AND 7 THE HOURS FOR WHICH AN EMPLOYEE IS EMPLOYED, THERE
SHALL BE EXCLUDED ANY TIME SPENT IN CHANGING CLOTHES OR WASHING AT THE
BEGINNING OR END OF EACH WORKDAY WHICH WAS EXCLUDED FROM MEASURED
WORKING TIME DURING THE WEEK INVOLVED BY THE EXPRESS TERMS OF OR BY
CUSTOM OR PRACTICE UNDER A BONA FIDE COLLECTIVE-BARGAINING AGREEMENT
APPLICABLE TO THE PARTICULAR EMPLOYEE."  63 STAT. 911, 29 U.S.C. SEC.
203(O). 

FN8  "SEC.  16(C).  ANY ORDER, REGULATION, OR INTERPRETATION OF THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OR OF THE SECRETARY OF
LABOR, AND ANY AGREEMENT ENTERED INTO BY THE ADMINISTRATOR OR THE
SECRETARY, IN EFFECT UNDER THE PROVISIONS OF THE FAIR LABOR STANDARDS
ACT OF 1938, AS AMENDED, ON THE EFFECTIVE DATE OF THIS ACT, SHALL
REMAIN IN EFFECT AS AN ORDER, REGULATION, INTERPRETATION, OR AGREEMENT
OF THE ADMINISTRATOR OR THE SECRETARY, AS THE CASE MAY BE, PURSUANT TO
THIS ACT, EXCEPT TO THE EXTENT THAT ANY SUCH ORDER, REGULATION,
INTERPRETATION, OR AGREEMENT MAY BE INCONSISTENT WITH THE PROVISIONS OF
THIS ACT, OR MAY FROM TIME TO TIME BE AMENDED, MODIFIED, OR RESCINDED
BY THE ADMINISTRATOR OR THE SECRETARY, AS THE CASE MAY BE, IN
ACCORDANCE WITH THE PROVISIONS OF THIS ACT."  63 STAT. 920. 

FN9  29 CFR SEC. 790.8. 

                      APPENDIX TO OPINION OF THE COURT. 

                 COLLOQUY BETWEEN SENATOR COOPER AND OTHER
SENATORS. 

"MR. COOPER  ...  .  BEFORE THE ENACTMENT OF THE FAIR LABOR STANDARDS
ACT AN EMPLOYEE MIGHT HAVE WORKED UPON A LATHE UNDER A CONTRACT, AND
HIS CONTRACT MAY HAVE PROVIDED THAT HIS PAY SHOULD COMMENCE AT A
SCHEDULED HOUR, SAY AT 7 O'CLOCK WHEN THE LATHE BEGAN TO RUN, AND HE
BEGAN TO APPLY HIS ENERGY TO A CASTING OR TO A BLOCK UPON THE LATHE. 
AFTER THE ENACTMENT OF THE FAIR LABOR STANDARDS ACT, BY INTERPRETATIONS
OF THE WAGE AND HOUR ADMINISTRATOR, IT WAS HELD THAT CERTAIN
PREPARATORY ACTIVITIES SUCH AS SHARPENING THE TOOLS, OILING THE
MACHINERY, PREPARING HIS MACHINERY FOR WORK, WERE SO CLOSELY RELATED TO
HIS PRODUCTIVE ACTIVITY THAT THE EMPLOYER MUST COMPENSATE THE EMPLOYEE
FOR IT.  WE BELIEVE THAT IN THE USE OF THE WORDS 'PRINCIPAL ACTIVITY'
WE HAVE PRESERVED TO THE EMPLOYEE THE RIGHTS AND THE BENEFITS AND THE
PRIVILEGES WHICH HAVE BEEN GIVEN TO HIM UNDER THE FAIR LABOR STANDARDS
ACT, BECAUSE IT IS OUR OPINION THAT THOSE ACTIVITIES WHICH ARE SO
CLOSELY RELATED AND ARE AN INTEGRAL PART OF THE PRINCIPAL ACTIVITY,
INDISPENSABLE TO ITS PERFORMANCE, MUST BE INCLUDED IN THE CONCEPT OF
PRINCIPAL ACTIVITY.  AND TO MAKE OUR POSITION CLEAR WE HAVE GIVEN
EXAMPLES IN THE REPORT  ...  . 

"MR. MCGRATH.  I THINK THAT AT THIS POINT WE MIGHT VERY DEFINITELY
MAKE CONTRIBUTION TO THE LEGISLATIVE HISTORY OF WHAT WE ARE DOING
HERE.  AM I CORRECT IN UNDERSTANDING THE SENATOR TO SAY THAT WHAT THE
MAJORITY OF THE COMMITTEE PROPOSES IS THAT ANY ACTIVITY OF A WORKER
SHALL BE CONSIDERED A PART OF HIS PRINCIPAL ACTIVITY IF THE DOING OF
THAT ACT IS INDISPENSABLE TO THE PERFORMANCE OF THE REST OF HIS DAY'S
WORK? 

"MR. COOPER.  I CAN READ THE LANGUAGE USED IN THE REPORT, AND I THINK
THAT LANGUAGE SHOULD BE USED IN THIS CONNECTION, BECAUSE THE WORDS AND
PHRASES IT EMPLOYS WERE ADOPTED BY THE COMMITTEE.  ON PAGE 48 OF THE
REPORT, IN THE DEFINITION OF 'PRINCIPAL ACTIVITY,' WE FIND THESE
WORDS: 

"'IT WILL BE OBSERVED THAT THE PARTICULAR TIME AT WHICH THE EMPLOYEE
COMMENCES HIS PRINCIPAL ACTIVITY OR ACTIVITIES AND CEASES HIS PRINCIPAL
ACTIVITY OR ACTIVITIES MARKED THE BEGINNING AND THE END OF HIS
WORKDAY.  THE TERM "PRINCIPAL ACTIVITY OR ACTIVITIES" INCLUDES ALL
ACTIVITIES WHICH ARE AN INTEGRAL PART THEREOF AS ILLUSTRATED BY THE
FOLLOWING EXAMPLES: 

"'1.  IN CONNECTION WITH THE OPERATION OF A LATHE AN EMPLOYEE WILL
FREQUENTLY AT THE COMMENCEMENT OF HIS WORKDAY OIL, GREASE, OR CLEAN HIS
MACHINE, OR INSTALL A NEW CUTTING TOOL.  SUCH ACTIVITIES ARE AN
INTEGRAL PART OF THE PRINCIPAL ACTIVITY, AND ARE INCLUDED WITHIN SUCH
TERM. 

"'2.  IN THE CASE OF A GARMENT WORKER IN A TEXTILE MILL, WHO IS
REQUIRED TO REPORT 30 MINUTES BEFORE OTHER EMPLOYEES REPORT TO COMMENCE
THEIR PRINCIPAL ACTIVITIES, AND WHO DURING SUCH 30 MINUTES DISTRIBUTES
CLOTHING OR PARTS OF CLOTHING AT THE WORK-BENCHES OF OTHER EMPLOYEES
AND GETS MACHINES IN READINESS FOR OPERATION BY OTHER EMPLOYEES, SUCH
ACTIVITIES ARE AMONG THE PRINCIPAL ACTIVITIES OF SUCH EMPLOYEE.' 

"WE BELIEVE THAT OUR BILL PROVIDES THAT THE EMPLOYEE MUST RECEIVE
COMPENSATION FOR SUCH ACTIVITIES. 

*         *         *         *         * 

"MR. MCGRATH  ...  .  THEN WE CAN CLEAR THAT POINT UP BY REITERATING
THAT WHAT THE COMMITTEE MEANS IS THAT ANY AMOUNT OF TIME SPENT IN THE
PERFORMANCE OF THE TYPE OF ACTIVITY EXPRESSED IN EXAMPLES 1 AND 2 IS TO
BE HEREAFTER REGARDED AS COMPENSABLE TIME. 

"MR. COOPER.  I SHOULD CERTAINLY SAY SO, AS A PART OF THE PRINCIPAL
ACTIVITY. 

"MR. MCGRATH.  THERE ARE INNUMERABLE INSTANCES OF OPERATIONS WHICH
HAVE TO BE PERFORMED THAT ARE NOT COVERED IN THESE TWO PARTICULAR
EXAMPLES.  I THINK OF ONE AT THE MOMENT.  IN CERTAIN OF OUR CHEMICAL
PLANTS WORKERS ARE REQUIRED TO PUT ON SPECIAL CLOTHING AND TO TAKE OFF
THEIR CLOTHING AT THE END OF THE WORKDAY, AND IN SOME OF THE PLANTS
THEY ARE REQUIRED TO TAKE SHOWER BATHS BEFORE THEY LEAVE.  DOES THE
SENATOR REGARD SUCH ACTIVITY AS THAT AS COMING WITHIN THE COMPENSABLE
WORKDAY? 

"MR. COOPER.  I AM VERY HAPPY THAT THE SENATOR HAS ASKED THE
QUESTION, BECAUSE I BELIEVE IT GIVES THE OPPORTUNITY OF DRAWING A FINE
DISTINCTION BETWEEN THE TYPE OF ACTIVITY WHICH WE CONSIDER COMPENSABLE
AND THE TYPE WHICH SHOULD NOT BE COMPENSABLE.  IN ACCORDANCE WITH OUR
INTENTION AS TO THE DEFINITION OF 'PRINCIPAL ACTIVITY,' IF THE EMPLOYEE
COULD NOT PERFORM HIS ACTIVITY WITHOUT PUTTING ON CERTAIN CLOTHES, THEN
THE TIME USED IN CHANGING INTO THOSE CLOTHES WOULD BE COMPENSABLE AS
PART OF HIS PRINCIPAL ACTIVITY.  ON THE OTHER HAND, IF CHANGING CLOTHES
WERE MERELY A CONVENIENCE TO THE EMPLOYEE AND NOT DIRECTLY RELATED TO
THE SPECIFIC WORK, IT WOULD NOT BE CONSIDERED A PART OF HIS PRINCIPAL
ACTIVITY, AND IT FOLLOWS THAT SUCH TIME WOULD NOT BE COMPENSABLE."  93
CONG. REC. 2297-2298. 

     *         *  *         *         * 

"MR. BARKLEY  ...  .  SUPPOSE THAT A MAN IS A MACHINIST OR A MECHANIC
OF SOME KIND.  HE IS REQUIRED TO GO TO WORK AT 8 O'CLOCK.  LET US
ASSUME FOR A MOMENT THAT HE IS NOT A MEMBER OF AN ORGANIZATION.  HE IS
REQUIRED TO ENTER UPON THE ACTUAL LABOR, WHICH MIGHT BE TERMED HIS
PRINCIPAL EMPLOYMENT, AT 8 O'CLOCK IN THE MORNING AND TO SPEND 8 HOURS
AT SUCH PRINCIPAL EMPLOYMENT.  BUT LET US SUPPOSE THAT HIS EMPLOYER
REQUIRES HIM TO BE ON THE GROUNDS AND WITHIN THE SHOP AT 7:30 IN THE
MORNING IN ORDER THAT HE MAY SPEND HALF AN HOUR SHARPENING AND
PREPARING THE TOOLS WITH WHICH HE HIMSELF OR HIS COLLEAGUES IN THE
FACTORY ARE TO WORK.  CAN ANYBODY SAY THAT UNDER THOSE CIRCUMSTANCES
THE 40-HOUR WORKWEEK HAS BEEN COMPLIED WITH, AS INTENDED BY THE FAIR
LABOR STANDARDS ACT?  IF HE IS REQUIRED TO DO THAT EVERY DAY, INSTEAD
OF WORKING 8 HOURS A DAY HE WILL BE WORKING 8 1/2 HOURS A DAY.  IF HE
WORKS 6 DAYS A WEEK, INSTEAD OF 40 HOURS A WEEK, HE WILL BE WORKING
MORE THAN 50 HOURS, EVERY MOMENT OF WHICH HE IS UNDER THE CONTROL OF
HIS EMPLOYER, WORKING WITH TOOLS WHICH BELONG TO HIS EMPLOYER, AND HE
MUST ABIDE BY HIS ORDERS OR RUN THE RISK OF DISCHARGE FROM HIS
EMPLOYMENT. 

"IS THAT A PART OF HIS PRINCIPAL EMPLOYMENT, OR IS THAT PRELIMINARY;
OR, IF HE IS REQUIRED TO DO IT AFTER THE CLOSE OF THE SHOP IN THE
AFTERNOON, IS THAT A PART OF THE 'POSTLIMINARY' WORK FOR WHICH THERE IS
TO BE NO COMPENSATION UNLESS THERE IS A CONTRACT OR UNLESS IT HAS BEEN
THE PRACTICE AND CUSTOM FOR THE EMPLOYER TO PAY FOR THE EXTRA WORK DONE
AT HIS COMMAND? 

  *         *         *         *         * 

"MR. COOPER.  THE DISTINGUISHED SENATOR HAS PERHAPS NOT HAD THE
OPPORTUNITY TO READ THE REPORT OF THE COMMITTEE.  LET ME SAY THAT ON
PAGE 48 OF THE REPORT OF THE COMMITTEE THAT EXACT SITUATION, OR ONE AS
NEARLY COMPARABLE TO IT AS PROBABLY COULD BE CITIED, IS DISCUSSED.  IN
THE REPORT IT IS CLEARLY STATED THAT UNDER SUCH CIRCUMSTANCES IT IS THE
INTENTION OF THE FRAMERS OF THE BILL THAT SUCH ACTIVITIES SHALL BE
COMPENSABLE, AS A PART OF THE PRINCIPAL ACTIVITY."  93 CONG. REC.
2350. 
..END :
















MITCHELL V. KING PACKING CO. 350 U.S. 260 


NO. 39.  ARGUED NOVEMBER 16-17, 1955 - DECIDED JANUARY 30, 1956 - 216
F.2D 618, REVERSED AND REMANDED. 


KNIFEMEN EMPLOYED IN BUTCHERING AND TRIMMING MEAT IN RESPONDENT'S MEAT
PACKING PLANT SPEND TIME EACH WORKDAY IN SHARPENING THE KNIVES WHICH
THEY USE IN THEIR WORK.  SUCH KNIFE SHARPENING IS NECESSARY FOR THE
PROPER PERFORMANCE OF THE WORK, AND RESPONDENT REQUIRES IT TO BE DONE
OUTSIDE THE SCHEDULED EIGHT-HOUR SHIFT OF THESE EMPLOYEES AND PROVIDES
A ROOM AND EQUIPMENT FOR ITS ACCOMPLISHMENT.  HELD:  THIS ACTIVTY IS A
"PRINCIPAL," RATHER THAN A "PRELIMINARY" OR "POSTLIMINARY," ACTIVITY,
WITHIN THE MEANING OF SEC. 4(A)(2) OF THE PORTAL-TO-PORTAL ACT, AND IT
IS COMPENSABLE UNDER THE FAIR LABOR STANDARDS ACT.  STEINER V.
MITCHELL, ANTE, P. 247.  PP. 260-263. 

MITCHELL, SECRETARY OF LABOR, V. KING PACKING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE LIKE STEINER V. MITCHELL, ANTE, P. 247, RAISES AN ISSUE OF
COVERAGE UNDER THE FAIR LABOR STANDARDS ACT, AS AMENDED BY THE PORTAL
TO-PORTAL ACT OF 1947, WITH RESPECT TO WORK PERFORMED BEFORE OR AFTER
THE DIRECT OR PRODUCTIVE LABOR FOR WHICH THE WORKER IS PRIMARILY PAID. 

THE DISTRICT COURT DENIED TO THE SECRETARY OF LABOR AN INJUNCTION TO
ENFORCE COMPLIANCE WITH THE ACT, AND THE COURT OF APPEALS FOR THE NINTH
CIRCUIT AFFIRMED.  216 F.2D 618. 

THE COURT BELOW RECOGNIZED A CONFLICT WITH STEINER, (FN1) AND,
ALTHOUGH HOLDING THAT SECTION 4 CONTROLS THE SITUATION HERE,
DETERMINED, CONTRARY TO THE HOLDING IN THE STEINER CASE, THAT "THE
TERMS 'PRELIMINARY' OR 'POSTLIMINARY' CANNOT BE INTERPRETED SO AS TO
EXCLUDE FROM THE EXEMPTIONS FROM THE ACT ALL ACTIVITY 'INDISPENSABLE TO
THE PERFORMANCE OF PRODUCTIVE WORK.'  TO DO SO WOULD DENY EFFECT TO THE
INTENDED MEANING OF THE PORTAL-TO-PORTAL ACT."  (FN2)  WE GRANTED
CERTIORARI TO RESOLVE THIS CONFLICT.  349 U.S. 914. 

IN STEINER, FOR REASONS THEREIN SET FORTH, WE CONCLUDED THAT AFTER
THE ENFORCEMENT DATE OF THE PORTAL-TO-PORTAL ACT ACTIVITIES PERFORMED
EITHER BEFORE OR AFTER THE REGULAR WORK SHIFT, ON OR OFF THE PRODUCTION
LINE, ARE COMPENSABLE UNDER THE PORTAL-TO-PORTAL PROVISIONS OF THE FAIR
LABOR STANDARDS ACT IF THOSE ACTIVITIES ARE AN INTEGRAL AND
INDISPENSABLE PART OF THE PRINCIPAL ACTIVITIES FOR WHICH COVERED
WORKMEN ARE EMPLOYED AND ARE NOT SPECIFICALLY EXCLUDED BY SECTION
4(A)(1). 

THE ONLY QUESTION TO BE DETERMINED IN THIS CASE IS WHETHER THE KNIFE
SHARPENING ACTIVITIES OF THE EMPLOYEES OF RESPONDENT KING PACKING CO.
ARE WITHIN THIS CLASSIFICATION. 

RESPONDENT IS AN INTERSTATE MEAT PACKER ENGAGED IN SLAUGHTERING,
BUTCHERING, DRESSING AND DISTRIBUTING MEAT AND MEAT PRODUCTS.  IT
EMPLOYS AT ITS PACKING PLANT ABOUT 75 PERSONS, OF WHOM ABOUT ONE-THIRD
ARE KNIFEMEN, WHOSE COMPENSATION RIGHTS ARE INVOLVED IN THIS
LITIGATION.  THE KNIFEMEN PERFORM VARIOUS BUTCHERING OPERATINS, 12 OR
14 OF THEM WORKING IN THE KILLING ROOM AND THE OTHERS IN THE CUTTING
ROOM.  VARIOUS KNIVES AND THREE TYPES OF ELECTRIC SAWS ARE USED IN THE
BUTCHERING OPERATIONS.  SOME OF THE KNIVES ARE FURNISHED BY THE
KNIFEMEN UNDER THE TERMS OF THEIR EMPLOYMENT.  THESE ARE THE BONING,
THE SHAVING, THE LEGGING AND THE SKINNING OR SIDING KNIVES.  THE SAWS
AND THE MORE EXPENSIVE LOIN PULLING, HAM SKINNING, SHOULDER TRIMMING
AND SPARERIB KNIVES ARE FURNISHED BY RESPONDENT.  ALL OF THE KNIVES AS
WELL AS THE SAWS MUST BE "RAZOR SHARP" FOR THE PROPER PERFORMANCE OF
THE WORK.  RESPONDENT'S PRODUCTION MANAGER AND ONE OF THE KNIFEMEN
TESTIFIED A DULL KNIFE WOULD SLOW DOWN PRODUCTION WHICH IS CONDUCTED ON
AN ASSEMBLY LINE BASIS, AFFECT THE APPEARANCE OF THE MEAT AS WELL AS
THE QUALITY OF THE HIDES, CAUSE WASTE AND MAKE FOR ACCIDENTS; "THAT A
KNIFE TO BE OF ANY PRACTICAL VALUE IN A KNIFE JOB HAS TO BE  ...
SHARP." 

THOUGH THE ENTIRE COST OF KEEPING THE SAWS IN PROPER CONDITION IS
BORNE BY RESPONDENT, THE KNIFEMEN ARE REQUIRED TO SHARPEN THEIR OWN
KNIVES OUTSIDE THE SCHEDULED SHIFT OF EIGHT HOURS, AND FOR THIS
ACTIVITY THEY ARE NOT COMPENSATED.  THE SHARPENING OF THESE KNIVES IS
DONE EITHER BEFORE OR AFTER WHT WORK SHIFT OR DURING THE LUNCH HOUR IN
A ROOM EQUIPPED BY RESPONDENT WITH AN EMERY WHEEL AND GRINDSTONE.  A
KNIFEMAN ORDINARILY SHARPENS FROM TWO TO FOUR KNIVES A DAY.  AT THE
TIME A MAN IS HIRED FOR, OR PROMOTED TO, A KNIFE JOB, IT IS UNDERSTOOD
THAT HE WILL BE REQUIRED TO SHARPEN KNIVES.   HE IS EXPECTED TO PERFORM
THAT TASK AS WELL AS OTHER TASKS CONNECTED WITH THE JOB. 

THE KNIFEMEN ARE PAID BY THE HOUR AND, EXCLUDING THE KNIFE-SHARPENING
TIME IN CONTROVERSY, THEY WORK EIGHT HOURS A DAY, FIVE DAYS A WEEK. 

WE BELIEVE THE FACTS CLEARLY DEMONSTRATE THAT THE KNIFE-SHARPENING
ACTIVITIES OF THESE WORKMEN ARE AN INTEGRAL PART OF AND INDISPENSABLE
TO THE VARIOUS BUTCHERING ACTIVITIES FOR WHICH THEY WERE PRINCIPALLY
EMPLOYED, AND THAT THEY MUST BE COMPENSATED FOR BY RESPONDENT IN
COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT, AS AMENDED BY THE PORTAL
TO-PORTAL ACT, AND AS CONSTRUED BY US TODAY IN STEINER V. MITCHELL. 
(FN3)  BECAUSE THE DECISION OF THE COURT BELOW, RESTING SOLELY UPON AN
ERRONEOUS READING OF SECTION 4, IS NOT IN ACCORDANCE WITH OUR
CONSTRUCTION, THE JUDGMENT MUST BE REVERSED AND REMANDED FOR
PROCEEDINGS NOT INCONSISTENT HEREWITH.  REVERSED AND REMANDED. 

FN1  "THE SECRETARY ARGUES THAT THE SHARPENING OF KNIVES IS NOT
'PRELIMINARY' OR 'POSTLIMINARY' BUT RATHER 'AN INTEGRAL PART OF A
PRINCIPAL ACTIVITY,' SINCE IT IS INDISPENSABLE TO THE PROPER
PERFORMANCE OF THE EMPLOYEES' WORK.  HE RELIES ON A STATEMENT BY
SENATOR COOPER, ONE OF THE SPONSORS OF THE PORTAL-TO-PORTAL ACT, MADE
DURING SENATE DEBATE ON THE BILL THAT THE TERM 'PRINCIPAL ACTIVITIES'
IS 'SUFFICIENTLY BROAD TO EMBRACE WITHIN ITS TERMS SUCH ACTIVITIES AS
ARE INDISPENSABLE TO THE PERFORMANCE OF PRODUCTIVE WORK.'  THE CASE OF
STEINER V. MITCHELL (215 F.2D 171), SUPPORTS THIS CONTENTION."  216
F.2D, AT 621. 

FN2  216 F.2D, AT 621. 

FN3  THE DISCUSSION BETWEEN SENATOR COOPER AND SENATOR BARKLEY,
QUOTED IN AN APPENDIX TO OUR OPINION IN THE STEINER CASE, IS
PARTICULARLY APPOSITE TO THE FACTS OF THE INSTANT CASE. 
..END :
























UNITED STATES V. TWIN CITY POWER CO. 350 U.S. 222 


NO. 21.  ARGUED OCTOBER 18, 1955 - DECIDED JANUARY 23, 1956 - 215 F.2D
592, REVERSED. 


IN A SUIT BROUGHT BY THE UNITED STATES FOR THE CONDEMNATION OF PRIVATE
LAND ADJOINING A NAVIGABLE RIVER AS PART OF A PROJECT FOR THE
IMPROVEMENT OF THE SAVANNAH RIVER BASIN, THE JUST COMPENSATION WHICH
THE FIFTH AMENDMENT REQUIRES TO BE PAID DOES NOT INCLUDE THE VALUE OF
THE WATER POWER IN THE FLOW OF THE STREAM.  PP. 223-228. 

(A)  A FEDERAL COURT MAY NOT SUBSTITUTE ITS JUDGMENT FOR A
CONGRESSIONAL DETERMINATION THAT THE TAKING IS FOR THE IMPROVEMENT OR
PROTECTION OF NAVIGATION.  P. 224. 

(B)  IF THE INTERESTS OF NAVIGATION ARE SERVED, IT IS
CONSTITUTIONALLY IRRELEVANT THAT OTHER PURPOSES ALSO MAY BE ADVANCED. 
P. 224. 

(C)  THE INTEREST OF THE UNITED STATES IN THE FLOW OF A NAVIGABLE
STREAM DERIVES FROM THE COMMERCE CLAUSE AND CAN BE ASSERTED TO THE
EXCLUSION OF ANY COMPETING OR CONFLICTING INTEREST.  PP. 224-225. 

(D)  THE FACT THAT THE LAND DOES NOT LIE IN THE BED OF THE RIVER NOR
BELOW HIGH WATER, BUT ABOVE AND BEYOND THE ORDINARY HIGH-WATER MARK,
DOES NOT ENTITLE THE OWNER TO COMPENSATION BASED ON A VALUE IN THE FLOW
OF THE STREAM.  PP. 225-226. 

(E)  UNITED STATES V. GERLACH LIVE STOCK CO., 339 U.S. 725, FEDERAL
POWER COMMISSION V. NIAGARA MOHAWK POWER CORP., 347 U.S. 239, AND
UNITED STATES V. KANSAS CITY LIFE INS. CO., 339 U.S. 799,
DISTINGUISHED.  UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53,
FOLLOWED.  PP. 225-228. 

(F)  THE FACT THAT THE PRIVATE OWNERS HAD INTERESTS IN THE WATER THAT
WERE RECOGNIZED BY STATE LAW DOES NOT ENTITLE THEM TO COMPENSATION FOR
SUCH VALUE.  PP. 227-228. 

(G)  UNDER THE FIFTH AMENDMENT, ONLY LOSS TO THE OWNER, NOT GAIN TO
THE TAKER, IS COMPENSABLE.  P. 228. 

(H)  TO REQUIRE THE UNITED STATES TO PAY FOR THIS WATER-POWER VALUE
WOULD BE TO CREATE PRIVATE CLAIMS IN THE PUBLIC DOMAIN.  P. 228. 

UNITED STATES V. TWIN CITY POWER CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR CONDEMNATION OF LAND INSTITUTED BY THE UNITED
STATES AGAINST RESPONDENT POWER COMPANY.  A SINGLE QUESTION OF
VALUATION IS PRESENTED.  IT IS WHETHER THE JUST COMPENSATION WHICH THE
UNITED STATES MUST PAY BY FORCE OF THE FIFTH AMENDMENT INCLUDES THE
VALUE OF THE LAND AS A SITE FOR HYDROELECTRIC POWER OPERATIONS.  THE
FOURTH CIRCUIT COURT OF APPEALS HELD THAT IT DOES.  215 F.2D 592.  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT REACHED THE SAME RESULT IN
LITIGATION INVOLVING OTHER LANDS IN THE SAME HYDROELECTRIC PROJECT. 
UNITED STATES V. TWIN CITY POWER CO., 221 F.2D 299.  WE GRANTED THE
PETITION FOR CERTIORARI IN THE FORMER CASE BECAUSE OF THE IMPORTANCE OF
THE ISSUE PRESENTED.  348 U.S. 910. 

THE CONDEMNATION PROCEEDINGS ARE PART OF THE PROCEDURE FOR COMPLETION
OF THE CLARK HILL PROJECT ON THE SAVANNAH RIVER, A NAVIGABLE STREAM IN
SOUTHEASTERN UNITED STATES.  THE CLARK HILL PROJECT IS THE FIRST IN A
SERIES OF STEPS RECOMMENDED BY THE CHIEF OF ARMY ENGINEERS FOR THE
IMPROVEMENT OF THE BASIN OF THAT RIVER.  H.R. DOC. NO. 657, 78TH CONG.,
2D SESS.  THAT REPORT CONCEIVES OF THE CLARK HILL PROJECT AS SERVING
MULTIPLE PURPOSES - HYDROELECTRIC, FLOOD CONTROL, AND NAVIGATION.  IT
STATES THAT THE CLARK HILL PROJECT, "IF SUITABLY CONSTRUCTED AND
OPERATED PRIMARILY FOR HYDROELECTRIC-POWER DEVELOPMENT, WOULD
INCIDENTALLY REDUCE DOWNSTREAM FLOOD DAMAGES AND IMPROVE LOW-WATER
FLOWS FOR NAVIGATION."  ID., P. 3.  CONGRESS APPROVED THIS PROJECT AS
PART OF "THE COMPREHENSIVE DEVELOPMENT OF THE SAVANNAH RIVER BASIN FOR
FLOOD CONTROL AND OTHER PURPOSES."  SECTION 10 OF THE FLOOD CONTROL ACT
OF 1944, 58 STAT. 887.  AND SEE UNITED STATES EX REL. CHAPMAN V.
FEDERAL POWER COMMISSION, 345 U.S. 153, 170. 

THE COURT OF APPEALS CONCLUDED THAT THE IMPROVEMENT OF NAVIGATION WAS
NOT THE PURPOSE OF THE TAKING BUT THAT THE CLARK HILL PROJECT WAS
DESIGNED TO SERVE FLOOD CONTROL AND WATER-POWER DEVELOPMENT.  215 F.2D,
AT 597.  IT IS NOT FOR COURTS, HOWEVER, TO SUBSTITUTE THEIR JUDGMENTS
FOR CONGRESSIONAL DECISIONS ON WHAT IS OR IS NOT NECESSARY FOR THE
IMPROVEMENT OR PROTECTION OF NAVIGATION.  SEE ARIZONA V. CALIFORNIA,
283 U.S. 423, 455-457.  THE ROLE OF THE JUDICIARY IN REVIEWING THE
LEGISLATIVE JUDGMENT IS A NARROW ONE IN ANY CASE.  SEE BERMAN V.
PARKER, 348 U.S. 26, 32; UNITED STATES EX REL. TVA V. WELCH, 327 U.S.
546, 552.  THE DECISION OF CONGRESS THAT THIS PROJECT WILL SERVE THE
INTERESTS OF NAVIGATION INVOLVES ENGINEERING AND POLICY CONSIDERATIONS
FOR CONGRESS AND CONGRESS ALONE TO EVALUATE.  COURTS SHOULD RESPECT
THAT DECISION UNTIL AND UNLESS IT IS SHOWN "TO INVOLVE AN
IMPOSSIBILITY," AS MR. JUSTICE HOLMES EXPRESSED IT IN OLD DOMINION CO.
V. UNITED STATES, 269 U.S. 55, 66.  IF THE INTERESTS OF NAVIGATION ARE
SERVED, IT IS CONSTITUTIONALLY IRRELEVANT THAT OTHER PURPOSES MAY ALSO
BE ADVANCED.  UNITED STATES V. APPALACHIAN POWER CO., 311 U.S. 337,
426; OKLAHOMA EX REL. PHILIPS V. ATKINSON CO., 313 U.S. 508, 525, 533
534.  AS WE SAID IN THE APPALACHIAN POWER CO. CASE, "FLOOD PROTECTION,
WATER-SHED DEVELOPMENT, RECOVERY OF THE COST OF IMPROVEMENTS THROUGH
UTILIZATION OF POWER ARE LIKEWISE PARTS OF COMMERCE CONTROL."  311
U.S., AT 426. 

THE INTEREST OF THE UNITED STATES IN THE FLOW OF A NAVIGABLE STREAM
ORIGINATES IN THE COMMERCE CLAUSE.  THAT CLAUSE SPEAKS IN TERMS OF
POWER, NOT OF PROPERTY.  BUT THE POWER IS A DOMINANT ONE WHICH CAN BE
ASSERTED TO THE EXCLUSION OF ANY COMPETING OR CONFLICTING ONE.  THE
POWER IS A PRIVILEGE WHICH WE HAVE CALLED "A DOMINANT SERVITUDE" (SEE
UNITED STATES V. COMMODORE PARK, INC., 324 U.S. 386, 391; FEDERAL POWER
COMMISSION V. NIAGARA MOHAWK POWER CORP., 347 U.S. 239, 249) OR "A
SUPERIOR NAVIGATION EASEMENT."  UNITED STATES V. GERLACH LIVE STOCK
CO., 339 U.S. 725, 736.  THE LEGISLATIVE HISTORY AND CONSTRUCTION OF
PARTICULAR ENACTMENTS MAY LEAD TO THE CONCLUSION THAT CONGRESS
EXERCISED LESS THAN ITS CONSTITUTIONAL POWER, FELL SHORT OF
APPROPRIATING THE FLOW OF THE RIVER TO THE PUBLIC DOMAIN, AND PROVIDED
THAT PRIVATE RIGHTS EXISTING UNDER STATE LAW SHOULD BE COMPENSABLE OR
OTHERWISE RECOGNIZED.  SUCH WERE UNITED STATES V. GERLACH LIVE STOCK
CO., SUPRA, AND FEDERAL POWER COMMISSION V. NIAGARA MOHAWK POWER CORP.,
SUPRA.  WE HAVE A DIFFERENT SITUATION HERE, ONE WHERE THE UNITED STATES
DISPLACES ALL COMPETING INTERESTS AND APPROPRIATES THE ENTIRE FLOW OF
THE RIVER FOR THE DECLARED PUBLIC PURPOSE. 

WE CAN ALSO PUT ASIDE SUCH CASES AS UNITED STATES V. KANSAS CITY LIFE
INS. CO., 339 U.S. 799, WHERE ASSERTION OF THE DOMINANT SERVITUDE IN
THE NAVIGABLE RIVER INJURED PROPERTY BEYOND THE BED OF THE STREAM. 
HERE WE ARE DEALING WITH THE STREAM ITSELF, FOR IT IS IN THE WATER
POWER THAT RESPONDENTS HAVE BEEN GRANTED A COMPENSABLE INTEREST. 

IT IS ARGUED, HOWEVER, THAT THE SPECIAL WATER-RIGHTS VALUE SHOULD BE
AWARDED THE OWNERS OF THIS LAND SINCE IT LIES NOT IN THE BED OF THE
RIVER NOR BELOW HIGH WATER BUT ABOVE AND BEYOND THE ORDINARY HIGH-WATER
MARK.  AN EFFORT IS MADE BY THIS ARGUMENT TO ESTABLISH THAT THIS
PRIVATE LAND IS NOT BURDENED WITH THE GOVERNMENT'S SERVITUDE.  THE FLAW
IS THAT REASONING IS THAT THE LAND-OWNER HERE SEEKS A VALUE IN THE FLOW
OF THE STREAM, A VALUE THAT INHERES IN THE GOVERNMENT'S SERVITUDE AND
ONE THAT UNDER OUR DECISIONS THE GOVERNMENT CAN GRANT OR WITHHOLD AS IT
CHOOSES.  IT IS NO ANSWER TO SAY THAT PAYMENT IS SOUGHT ONLY FOR THE
LOCATION VALUE OF THE FAST LANDS.  THAT SPECIAL LOCATION VALUE IS DUE
TO THE FLOW OF THE STREAM; AND IF THE UNITED STATES WERE REQUIRED TO
PAY THE JUDGMENTS BELOW, IT WOULD BE COMPENSATING THE LANDOWNER FOR THE
INCREMENT OF VALUE ADDED TO THE FAST LANDS IF THE FLOW OF THE STREAM
WERE TAKEN INTO ACCOUNT. 

THAT IS ILLUSTRATED BY UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S.
53, THE CASE THAT CONTROLS THIS ONE.  IN THAT CASE A PRIVATE COMPANY
INSTALLED A POWER PROJECT IN ST. MARY'S RIVER UNDER A PERMIT FROM THE
GOVERNMENT, REVOCABLE AT WILL.  THE PERMIT WAS REVOKED, CONGRESS
APPROPRIATED THE ENTIRE FLOW OF THE STREAM FOR NAVIGATION PURPOSES. 
THE COURT UNANIMOUSLY HELD THAT THE RIPARIAN OWNER HAD NO COMPENSABLE
INTEREST IN THE WATER POWER OF WHICH IT HAD BEEN DEPRIVED.  MR. JUSTICE
LURTON, SPEAKING FOR THE COURT, SAID, "OWNERSHIP OF A PRIVATE STREAM
WHOLLY UPON THE LANDS OF AN INDIVIDUAL IS CONCEIVABLE; BUT THAT THE
RUNNING WATER IN A GREAT NAVIGABLE STREAM IS CAPABLE OF PRIVATE
OWNERSHIP IS INCONCEIVABLE."  ID., AT 69.  THE COURT ACCORDINGLY
REVERSED A JUDGMENT THAT AWARDED THE RIPARIAN OWNER WHAT RESPONDENTS
HAVE OBTAINED IN THIS CASE, VIZ., "THE PRESENT MONEY VALUE OF THE
RAPIDS AND FALLS TO THE CHANDLER-DUNBAR COMPANY AS RIPARIAN OWNERS OF
THE SHORE AND APPURTENANT SUBMERGED LAND."  ID., AT 74.  THE COURT
SAID, "THE GOVERNMENT HAD DOMINION OVER THE WATER POWER OF THE RAPIDS
AND FALLS AND CANNOT BE REQUIRED TO PAY ANY HYPOTHETICAL ADDITIONAL
VALUE TO A RIPARIAN OWNER WHO HAD NO RIGHT TO APPROPRIATE THE CURRENT
TO HIS OWN COMMERCIAL USE."*  ID., AT 76.  SOME OF THE LAND OWNED BY
THE PRIVATE COMPANY WAS IN THE BED OF THE STREAM, SOME ABOVE ORDINARY
HIGH WATER.  BUT THE LOCATION OF THE LAND WAS NOT DETERMINATIVE.  IT
WAS THE DOMINION OF THE GOVERNMENT OVER THE WATER POWER THAT CONTROLLED
THE DECISION.  BOTH IN CHANDLER-DUNBAR AND IN THIS CASE IT IS THE WATER
POWER THAT CREATES THE SPECIAL VALUE, WHETHER THE LANDS ARE ABOVE OR
BELOW ORDINARY HIGH WATER.  THE HOLDING IN CHANDLER-DUNBAR LED US TO
SAY IN UNITED STATES V. APPALACHIAN POWER CO., SUPRA, AT 424, THAT THE
"EXCLUSION OF RIPARIAN OWNERS" FROM THE BENEFITS OF THE POWER IN A
NAVIGABLE STREAM "WITHOUT COMPENSATION IS ENTIRELY WITHIN THE
GOVERNMENT'S DISCRETION."  AND AGAIN, "IF THE GOVERNMENT WERE NOW TO
BUILD THE DAM, IT WOULD HAVE TO PAY THE FAIR VALUE, JUDICIALLY
DETERMINED, FOR THE FAST LAND; NOTHING FOR THE WATER POWER."  ID., AT
427. 

*IN THE CHANDLER-DUNBAR CASE, AN AWARD OF COMPENSATION WAS MADE FOR
THE VALUE OF THE LAND FOR A LOCK AND CANAL, PASSING "AROUND THE FALLS
AND RAPIDS."  UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S., AT 67, 76
78.  IT MAY BE THAT THE COURT WAS INFLUENCED BY THE FACT THAT, ON THE
SPECIAL FACTS OF THE CASE, THE USE OF THE LAND FOR CANALS AND LOCKS WAS
WHOLLY CONSISTENT WITH THE DOMINANT NAVIGATION SERVITUDE OF THE UNITED
STATES AND INDEED AIDED NAVIGATION.  WHATEVER MAY BE SAID FOR THAT
PHASE OF THE CASE, IT AFFORDS NO SUPPORT FOR RESPONDENT, SINCE WATER
POWER VALUE, HELD TO BE COMPENSABLE BY THE COURT OF APPEALS, WAS RULED
TO BE NONCOMPENSABLE IN THE CHANDLER-DUNBAR CASE. 

THE POWER COMPANY IN THE PRESENT CASE IS CERTAINLY IN NO STRONGER
POSITION THAN THE OWNER OF THE HYDROELECTRIC SITE IN THE CHANDLER
DUNBAR CASE.  WHILE THE LATTER WAS DEPRIVED OF A GOING PRIVATE POWER
PROJECT BY THE GOVERNMENT, THE PRESENT PRIVATE OWNERS NEVER HAD A POWER
PROJECT ON THE SAVANNAH AND AS A RESULT OF THE GOVERNMENT'S PRE-EMPTION
NEVER CAN HAVE ONE. 

IT IS NO ANSWER TO SAY THAT THESE PRIVATE OWNERS HAD INTERESTS IN THE
WATER THAT WERE RECOGNIZED BY STATE LAW.  WE DEAL HERE WITH THE FEDERAL
DOMAIN, AN AREA WHICH CONGRESS CAN COMPLETELY PRE-EMPT, LEAVING NO
VESTED PRIVATE CLAIMS THAT CONSTITUTE "PRIVATE PROPERTY" WITHIN THE
MEANING OF THE FIFTH AMENDMENT.  LOCATION OF THE LANDS MIGHT UNDER SOME
CIRCUMSTANCES GIVE THEM SPECIAL VALUE, AS OUR CASES HAVE ILLUSTRATED. 
BUT TO ATTACH A VALUE OF WATER POWER OF THE SAVANNAH RIVER DUE TO
LOCATION AND TO ENFORCE THAT VALUE AGAINST THE UNITED STATES WOULD GO
CONTRA TO THE TEACHING OF CHANDLER-DUNBAR - "THAT THE RUNNING WATER IN
A GREAT NAVIGABLE STREAM IS CAPABLE OF PRIVATE OWNERSHIP IS
INCONCEIVABLE."  229 U.S., AT 69. 

THE HOLDING OF THE CHANDLER-DUNBAR CASE THAT WATER POWER IN A
NAVIGABLE STREAM IS NOT BY FORCE OF THE FIFTH AMENDMENT A COMPENSABLE
INTEREST WHEN THE UNITED STATES ASSERTS ITS EASEMENT OF NAVIGATION IS
IN HARMONY WITH ANOTHER RULE OF LAW EXPRESSED IN UNITED STATES V.
MILLER, 317 U.S. 369, 375. 

"SINCE THE OWNER IS TO RECEIVE NO MORE THAN INDEMNITY FOR HIS LOSS,
HIS AWARD CANNOT BE ENHANCED BY ANY GAIN TO THE TAKER.  THUS, ALTHOUGH
THE MARKET VALUE OF THE PROPERTY IS TO BE FIXED WITH DUE CONSIDERATION
OF ALL ITS AVAILABLE USES, ITS SPECIAL VALUE TO THE CONDEMNOR AS
DISTINGUISHED FROM OTHERS WHO MAY OR MAY NOT POSSESS THE POWER TO
CONDEMN, MUST BE EXCLUDED AS AN ELEMENT OF MARKET VALUE." 

THE COURT IN THE CHANDLER-DUNBAR CASE EMPHASIZED THAT IT WAS ONLY
LOSS TO THE OWNER, NOT GAIN TO THE TAKER, THAT IS COMPENSABLE.  229
U.S., AT 76.  IF THE OWNER OF THE FAST LANDS CAN DEMAND WATER-POWER
VALUE AS PART OF HIS COMPENSATION, HE GETS THE VALUE OF A RIGHT THAT
THE GOVERNMENT IN THE EXERCISE OF ITS DOMINANT SERVITUDE CAN GRANT OR
WITHHOLD AS IT CHOOSES.  THE RIGHT HAS VALUE OR IS AN EMPTY ONE
DEPENDENT SOLELY ON THE GOVERNMENT.  WHAT THE GOVERNMENT CAN GRANT OR
WITHHOLD AND EXPLOIT FOR ITS OWN BENEFIT HAS A VALUE THAT IS PECULIAR
TO IT AND THAT NO OTHER USER ENJOYS.  CF. U.S. EX REL. T.V.A. V.
POWELSON, 319 U.S. 266, 273 ET SEQ. TO REQUIRE THE UNITED STATES TO PAY
FOR THIS WATER-POWER VALUE WOULD BE TO CREATE PRIVATE CLAIMS IN THE
PUBLIC DOMAIN.  REVERSED. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
MINTON, AND MR. JUSTICE HARLAN JOIN, DISSENTING. 

THE ISSUE HERE IS THE DETERMINATION OF THE COMPENSATION WHICH, UNDER
THE FIFTH AMENDMENT MUST BE PAID FOR PRIVATELY OWNED FAST LAND
ADJOINING A NAVIGABLE STREAM WHEN SUCH LAND IS TAKEN BY THE UNITED
STATES FOR A PUBLIC USE.  FOR THE REASONS HEREAFTER STATED, I AGREE
WITH THE COURTS BELOW THAT THE PROPER MEASURE OF SUCH COMPENSATION IS
THE FAIR MARKET VALUE OF THE LAND AT THE TIME IT IS TAKEN, AND THAT
THIS INCLUDES RECOGNITION OF ANY FAIR MARKET VALUE OF THE LAND THAT IS
DUE TO ITS RIPARIAN CHARACTER. 

THIS ISSUE HAS CONFRONTED THE UNITED STATES EVER SINCE IT PROPOSED TO
CONSTRUCT A MULTIPURPOSE DAM ACROSS THE SAVANNAH RIVER, AND FOUND IT
NECESSARY TO ACQUIRE PRIVATELY OWNED LAND ON WHICH TO LOCATE ITS CLARK
HILL DAM, PLANT AND RESERVOIR.  PART OF THE NEEDED LAND LAY IN SOUTH
CAROLINA ON THE NORTH BANK OF THE RIVER AND THE REMAINDER ON ITS SOUTH
BANK IN GEORGIA.  OF THE 70,000 OR MORE ACRES THUS REQUIRED, ABOUT
4,700, AT THE HEART OF THE PROJECT, ARE THE ONES BEFORE US.  THOSE IN
SOUTH CAROLINA ARE OWNED BY THE TWIN CITY POWER COMPANY, A SOUTH
CAROLINA CORPORATION.  THOSE IN GEORGIA ARE OWNED BY THE TWIN CITY
POWER COMPANY OF GEORGIA, A GEORGIA CORPORATION.  THE LATTER IS A
WHOLLY OWNED SUBSIDIARY OF THE FORMER AND THE TWO WILL BE REFERRED TO
AS TWIN CITY. 

IN 1947, THE UNITED STATES, IN SEVEN PROCEEDINGS, BUT UNDER A SINGLE
PROGRAM, TOOK POSSESSION OF THE 4,700 ACRES.  IT FILED FOUR ACTIONS IN
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF SOUTH
CAROLINA, AND THREE IN THE CORRESPONDING COURT FOR THE SOUTHERN
DISTRICT OF GEORGIA.  EACH SOUGHT TO CONDEMN THE TITLE TO SOME OF THE
PROPERTY TAKEN AND TO FIX THE COMPENSATION TO BE PAID FOR IT. 
BECAUSE OF THE NECESSITY FOR PROCEEDING IN TWO JURISDICTIONS, THE
COMPENSATION ISSUE HAS BEEN PASSED UPON BY TWO DISTRICT COURTS AND TWO
COURTS OF APPEALS, AS WELL AS BY THREE COMMISSIONERS APPOINTED JOINTLY
BY THE DISTRICT COURTS TO RECOMMEND THE COMPENSATION TO BE PAID.  ALL
OF THE OPINIONS RENDERED HAVE BEEN THAT THE FAIR MARKET VALUE OF THE
LAND TAKEN SHOULD INCLUDE RECOGNITION OF THE VALUE OF ITS LOCATION,
AVAILABILITY AND EXCEPTIONAL SUITABILITY FOR USE AS A DAM SITE, PLANT
SITE OR RESERVOIR BASIN INCIDENTAL TO A WATER-POWER DEVELOPMENT.  BY
DOING SO, THEY HAVE EXPRESSLY DECLINED TO LIMIT THEIR ESTIMATES OF THE
FAIR MARKET VALUE OF THE TWIN CITY LAND MERELY TO ITS MARKET VALUE FOR
AGRICULTURAL PURPOSES AND THE SUPPLYING OF TIMBER AS CONTENDED BY THE
GOVERNMENT.  (FN1) 

FOR OVER 50 YEARS, THE LAND IN QUESTION HAS BEEN THE SUBJECT OF
FREQUENT CONSIDERATION AND NEGOTIATION IN CONNECTION WITH THE PROPOSED
CONSTRUCTION OF SOME DAM TO RAISE  THE LEVEL OF THE SAVANNAH RIVER FROM
60 TO 100 FEET IN THAT VICINITY.  TWIN CITY WAS ORGANIZED FOR THE
DEVELOPMENT OF A HYDROELECTRIC PLANT IN THIS AREA AND BEGAN ACQUIRING
THIS PROPERTY FOR THAT PURPOSE IN 1901.  BY 1911, IT OWNED PRACTICALLY
ALL OF THE LAND NECESSARY FOR AN INTEGRATED SITE FOR A HYDROELECTRIC
POWER PROJECT WITH A 60-FOOT HEAD AT PRICE'S ISLAND.  (FN2)  UNDER SIX
ACTS OF CONGRESS, PASSED BETWEEN 1901 AND 1919, TWIN CITY WAS
AUTHORIZED TO BUILD POWER DAMS IN THE SAVANNAH RIVER AT PRICE'S ISLAND
UTILIZING THE LAND INVOLVED HERE.  THE SECRETARY OF WAR AND THE CHIEF
OF ENGINEERS OF THE UNITED STATES APPROVED THOSE PLANS.  THE LAND
BEFORE US INCLUDED AN EXCELLENT DAM SITE WHERE THE RIVER NARROWED TO
900 FEET.  AT APPROPRIATE POINTS, THE LAND INCLUDED SOUND FOUNDATION
ROCK AND MUCH CLAY SUITABLE FOR EARTH DAM PURPOSES.  THE STREAM FLOW AT
PRICE'S ISLAND EXCEEDED THAT OF MOST HYDRO DEVELOPMENTS IN NORTH
CAROLINA, SOUTH CAROLINA OR GEORGIA.  AT ALL MATERIAL TIMES, THERE HAS
BEEN AN AMPLE AND GROWING MARKET FOR THE ELECTRICAL ENERGY TO BE
PRODUCED.  THE AREA CONTAINED SUBSTANTIALLY NO IMPROVEMENTS REQUIRING
REMOVAL AND WAS SUITED FOR A RESERVOIR BASIN EXTENDING 11 OR MORE MILES
UP THE RIVER. 

IN 1925, THE FEDERAL POWER COMMISSION GRANTED TWIN CITY A PRELIMINARY
PERMIT FOR A DEVELOPMENT AT PRICE'S ISLAND INVOLVING A DAM WITH A 60
FOOT HEAD OF WATER.  IN 1926, THE SOUTHEASTERN POWER & LIGHT COMPANY
NEGOTIATED WITH TWIN CITY FOR THE PURCHASE OF ITS LAND.  SHORTLY
THEREAFTER, THE SAVANNAH RIVER ELECTRIC COMPANY INTERVENED AND OBTAINED
A LICENSE FROM THE COMMISSION TO CONSTRUCT A 90-FOOT DAM FOR A
HYDROELECTRIC DEVELOPMENT WHICH WOULD HAVE ABSORBED THE LAND NOW BEFORE
US.  THE SAVANNAH RIVER ELECTRIC COMPANY ALSO INSTITUTED, BUT LATER
ABANDONED, PROCEEDINGS TO CONDEMN THE TWIN CITY PROPERTY.  AFTER WORLD
WAR II, THE SAVANNAH RIVER ELECTRIC COMPANY APPLIED TO THE COMMISSION
FOR A PERMIT TO CONSTRUCT A DAM FOR THE DEVELOPMENT OF WATER POWER AT A
POINT ALMOST IDENTICAL WITH THE CLARK HILL SITE.  THAT PROPOSAL CALLED
FOR OCCUPATION OF THE TWIN CITY LAND AND NEGOTIATIONS FOR ITS PURCHASE
WERE RENEWED.  BY THEN, HOWEVER, THE UNITED STATES HAD MADE PLANS FOR
ITS OWN COMPREHENSIVE IMPROVEMENT OF THE SAVANNAH RIVER FOR FLOOD
CONTROL, NAVIGATION AND POWER PURPOSES.  IN 1944, CONGRESS HAD
AUTHORIZED THE CLARK HILL PROJECT.  58 STAT. 894.  IN 1947, THE EFFORTS
OF THE SAVANNAH RIVER ELECTRIC COMPANY CAME TO AN END WITH ITS
UNSUCCESSFUL PETITION FOR A FEDERAL LICENSE.  (FN3)  IN THAT YEAR, THE
GOVERNMENT TOOK POSSESSION OF THE LAND FOR ITS PRESENT CLARK HILL
PROJECT, CALLING FOR A 130-FOOT DAM ABOUT 6 MILES BELOW PRICE'S ISLAND
AND FOR THE COMPLETE ABSORPTION OF THE TWIN CITY LAND. 

INCLUDED IN THE 4,707.65 ACRES TO BE EVALUATED ARE 4,519.15 ACRES
OWNED IN FEE, AND 188.50 OVER WHICH TWIN CITY MERELY HAS FLOWAGE
RIGHTS.  (FN4)  THE LATTER ARE SIGNIFICANT BECAUSE A MARKET FOR FLOWAGE
RIGHTS IS A RECOGNITION OF A SPECIAL VALUE OF THE LAND FOR THAT USE. 

THERE IS NO NEED TO DISCUSS HERE THE QUESTION WHETHER THE CLARK HILL
PROJECT, AS AUTHORIZED BY CONGRESS, IS PRIMARILY IN THE INTEREST OF
NAVIGATION, RATHER THAN OF FLOOD CONTROL OR POWER DEVELOPMENT, FOR, IN
ANY EVENT, THE UNITED STATES HAS THE POWER OF EMINENT DOMAIN.  BY
PAYMENT OF JUST COMPENSATION, IT MAY ACQUIRE WHATEVER PRIVATE PROPERTY
MAY BE NECESSARY AND APPROPRIATE FOR THE PROJECT, INCLUDING THE TWIN
CITY FAST LAND AND FLOWAGE RIGHTS. 

THERE ALSO IS NO NEED TO DISCUSS THE TRADITIONAL SERVITUDE, GENERALLY
REFERRED TO AS THE NAVIGATION SERVITUDE, WHICH THE UNITED STATES ENJOYS
WITHIN THE BANKS AND BED OF THE SAVANNAH RIVER.   ALL OF THE TWIN CITY
LAND AND FLOWAGE RIGHTS INVOLVED ARE LOCATED ABOVE AND BEYOND THE
ORDINARY HIGH-WATER MARK OF THE RIVER.  IT IS CONCEDED THAT THE UNITED
STATES HAS A RIGHT TO EXERCISE ITS NAVIGATION SERVITUDE WITHOUT PAYMENT
OF COMPENSATION WITHIN THE LIMITS OF THE SERVITUDE.  THERE IS NO CLAIM
MADE HERE FOR PAYMENT FOR ANY VALUE IN THE FLOW OF THE STREAM, FOR ANY
PART OF THE BED OF THE RIVER OR FOR ANY LAND BELOW THE ORDINARY HIGH
WATER MARK OF THE RIVER.  (FN5) 

"IT IS NOT THE BROAD CONSTITUTIONAL POWER TO REGULATE COMMERCE, BUT
RATHER THE SERVITUDE DERIVED FROM THAT POWER AND NARROWER IN SCOPE,
THAT FREES THE GOVERNMENT FROM LIABILITY IN THESE CASES (UNITED STATES
V. CHICAGO, M., ST. P.&P.R. CO., 312 U.S. 592, AND UNITED STATES V.
WILLOW RIVER POWER CO., 324 U.S. 499).  WHEN THE GOVERNMENT EXERCISES
THIS SERVITUDE, IT IS EXERCISING ITS PARAMOUNT POWER IN THE INTEREST OF
NAVIGATION, RATHER THAN TAKING THE PRIVATE PROPERTY OF ANYONE.  THE
OWNER'S USE OF PROPERTY RIPARIAN TO A NAVIGABLE STREAM LONG HAS BEEN
LIMITED BY THE RIGHT OF THE PUBLIC TO USE THE STREAM IN THE INTEREST OF
NAVIGATION.  SEE GOULD ON WATERS, C. IV, SECS. 86-90 (1883); I FARNHAM,
WATERS AND WATER RIGHTS, C. III, SEC. 29 (1904).  THIS HAS APPLIED TO
THE STREAM AND TO THE LAND SUBMERGED BY THE STREAM.  THERE THUS HAS
BEEN AMPLE NOTICE OVER THE YEARS THAT SUCH PROPERTY IS SUBJECT TO A
DOMINANT PUBLIC INTEREST.  THIS RIGHT OF THE PUBLIC HAS CRYSTALLIZED IN
TERMS OF A SERVITUDE OVER THE BED OF THE STREAM.  THE RELEVANCE OF THE
HIGH-WATER LEVEL OF THE NAVIGABLE STREAM IS THAT IT MARKS ITS BED. 
ACCORDINGLY, IT IS CONSISTENT WITH THE HISTORY AND REASON OF THE RULE
TO DENY COMPENSATION WHERE THE CLAIMANT'S PRIVATE TITLE IS BURDENED
WITH THIS SERVITUDE BUT TO AWARD COMPENSATION WHERE HIS TITLE IS NOT SO
BURDENED."  UNITED STATES V. KANSAS CITY INS. CO., 339 U.S. 799, 808. 
(FN6) 

SIMILARLY, THERE IS NO CONTROVERSY HERE BETWEEN THE UNITED STATES,
ANY STATE, OR PRIVATE LANDOWNER AS TO THE PARAMOUNT RIGHT OF THE UNITED
STATES TO TAKE POSSESSION OF THE LAND IN QUESTION FOR THE PURPOSES
STATED.  UNLIKE THE SITUATION IN FEDERAL POWER COMMISSION V. NIAGARA
MOHAWK CORP., 347 U.S. 239, THERE ARE NO VESTED WATER RIGHTS CLAIMED
HERE UNDER STATE LAW.  TWIN CITY DOES NOT CONTEST THE RIGHT OF THE
UNITED STATES TO DEVELOP THE POWER RESOURCES OF THE RIVER.  IT ASKS
ONLY THAT, TO THE EXTENT THAT THE UNITED STATES TAKES PRIVATE FAST LAND
FOR PUBLIC USE, IT SHALL PAY ITS FAIR MARKET VALUE, INCLUDING ITS FAIR
MARKET VALUE FOR RIPARIAN USES. 

"  ...  THE STATEMENT IN THAT OPINION (P. 326)(MONONGAHELA NAVIGATION
CO. V. UNITED STATES, 148 U.S. 312) THAT 'NO PRIVATE PROPERTY SHALL BE
APPROPRIATED TO PUBLIC USES UNLESS A FULL AND EXACT EQUIVALENT FOR IT
BE RETURNED TO THE OWNER' APTLY EXPRESSES THE SCOPE OF THE
CONSTITUTIONAL SAFEGUARD AGAINST THE UNCOMPENSATED TAKING OR USE OF
PRIVATE PROPERTY FOR PUBLIC PURPOSES.  REAGAN V. FARMERS' LOAN & TRUST
CO., 154 U.S. 362, 399. 

"THAT EQUIVALENT IS THE MARKET VALUE OF THE PROPERTY AT THE TIME OF
THE TAKING CONTEMPORANEOUSLY PAID IN MONEY  ...  . 

"JUST COMPENSATION INCLUDES ALL ELEMENTS OF VALUE THAT INHERE IN THE
PROPERTY, BUT IT DOES NOT EXCEED MARKET VALUE FAIRLY DETERMINED.  THE
SUM REQUIRED TO BE PAID THE OWNER DOES NOT DEPEND UPON THE USES TO
WHICH HE HAS DEVOTED HIS LAND BUT IS TO BE ARRIVED AT UPON JUST
CONSIDERATION OF ALL THE USES FOR WHICH IT IS SUITABLE.  THE HIGHEST
AND MOST PROFITABLE USE FOR WHICH THE PROPERTY IS ADAPTABLE AND NEEDED
OR LIKELY TO BE NEEDED IN THE REASONABLY NEAR FUTURE IS TO BE
CONSIDERED, NOT NECESSARILY AS THE MEASURE OF VALUE, BUT TO THE FULL
EXTENT THAT THE PROSPECT OF DEMAND FOR SUCH USE AFFECTS THE MARKET
VALUE WHILE THE PROPERTY IS PRIVATELY HELD.  BOOM CO. V. PATTERSON, 98
U.S. 403, 408.  CLARK'S FERRY BRIDGE CO. V. PUBLIC SERVICE COMM'N, 291
U.S. 227.  2 LEWIS, EMINENT DOMAIN, 3D ED., SEC. 707, P. 1233.  1
NICHOLS, EMINENT DOMAIN, 2D ED., SEC. 220, P. 671.  THE FACT THAT THE
MOST PROFITABLE USE OF A PARCEL CAN BE MADE ONLY IN COMBINATION WITH
OTHER LANDS DOES NOT NECESSARILY EXCLUDE THAT USE FROM CONSIDERATION IF
THE POSSIBILITY OF COMBINATION IS REASONABLY SUFFICIENT TO AFFECT
MARKET VALUE."  (FN7)  OLSON V. UNITED STATES, 292 U.S. 246, 254-256. 

IN THE INSTANT CASE, THE COMMISSIONERS, THE DISTRICT COURTS AND THE
COURT OF APPEALS HAVE APPLIED THE ABOVE RULE.  THE COMMISSIONERS
CONSIDERED ALL ELEMENTS OF VALUE WHICH THEY COULD ASCERTAIN WITH
REASONABLE ACCURACY, PROVIDED THOSE ELEMENTS WERE SUFFICIENTLY ASSURED
TO BE REFLECTED IN THE FAIR MARKET VALUE OF THE PREMISES.  (FN8)  IN
CONFIRMING THE REPORT OF THE COMMISSIONERS, THE DISTRICT COURT SAID: 

"SINCE THE AWARD TO TWIN CITY OF $1,257,033.20 IS NOT THE VALUE OF
ITS PROPERTY FOR ANY PARTICULAR PURPOSE BUT REPRESENTS ITS FAIR MARKET
VALUE AFTER CONSIDERING ALL OF THE REASONABLE USES OF THE PROPERTY
WHICH WERE NOT TOO REMOTE OR SPECULATIVE, THIS AMOUNT IS THE 'JUST
COMPENSATION' REQUIRED BY THE FIFTH AMENDMENT AND THE APPLICABLE
STATUTES  ...  .  THIS IS THE AMOUNT THAT IN ALL PROBABILITY WOULD HAVE
BEEN ARRIVED AT BY FAIR NEGOTIATIONS BETWEEN AN OWNER WILLING TO SELL
AND A PURCHASER DESIRING TO BUY."  114 F. SUPP., AT 725. 

THE POTENTIAL USE OF THIS LAND FOR DAM, PLANT AND RESERVOIR PURPOSES
IS FAR FROM SPECULATIVE IN THE LIGHT OF THE 50 YEARS OF RECOGNITION OF
ITS AVAILABILITY AND SUITABILITY FOR THOSE PURPOSES.  THE LAND WAS
ACCUMULATED BY TWIN CITY FOR THIS VERY PURPOSE AND IT IS NOW FLOODED AS
PART OF THE CLARK HILL PROJECT.  THE STEAM-PLANT COMPARISON
COMPUTATIONS MADE BY THE COMMISSIONERS ARE SUBSTANTIALLY
UNCONTROVERTED.  IF A PURCHASE PRICE HAD BEEN SOUGHT BY NEGOTIATION IN
1947, IT IS INEVITABLE THAT A PRIMARY CONSIDERATION WOULD HAVE BEEN THE
VALUE OF THE FLOWAGE RIGHTS AND OF THE DAM AND PLANT LOCATIONS IN
RELATION TO WATER-POWER DEVELOPMENT.  WE CANNOT REALISTICALLY IMAGINE
THAT SUCH A NEGOTIATION WOULD HAVE BEEN LIMITED TO A CONSIDERATION OF
THE LAND'S TIMBER AND ITS MINOR VALUE FOR AGRICULTURAL USES.  (FN9) 

THE VALUE RECOMMENDED BY THE COMMISSIONERS AND APPROVED BY THE COURTS
BELOW INCLUDES NOTHING FOR STRATEGIC OR "HOLD-UP" VALUE.  IT REFLECTS
NO INFLATION DUE TO THE "TAKING" OF THE PROPERTY BY THE GOVERNMENT AND
NO DEFLATION DUE TO THE ABSENCE OF OTHER BIDDERS AFTER THE GOVERNMENT
ANNOUNCED THAT IT WOULD TAKE THE PROPERTY.  THERE WAS NOTHING CONDEMNED
OR VALUED THAT COULD BE DESCRIBED AS "IN THE FLOW OF THE STREAM."  ONLY
THE FAST LAND WAS TAKEN AND VALUED.  IT IS BECAUSE OF THAT LAND'S
LOCATION NEAR, BUT APART FROM, THE FLOW OF THE STREAM THAT AN
ADDITIONAL FAIR MARKET VALUE, LONG RECOGNIZED IN THIS LAND, WAS
RECOMMENDED AND APPROVED BELOW.  THE LOCATION OF LAND IS ALWAYS A
FACTOR, AND OFTEN A PRIMARY FACTOR, IN DETERMINING ITS MARKET VALUE. 
EVERY PUBLIC UTILITY EXERCISING THE RIGHT OF EMINENT DOMAIN IS REQUIRED
TO PAY IT. 

BEFORE PASSAGE OF THE WATER POWER ACT, THE PARAMOUNT, BUT
UNEXERCISED, RIGHT OF THE GOVERNMENT TO CONTROL THE WATER POWER IN THE
SAVANNAH RIVER DID NOT EXCLUDE THE DEVELOPMENT OF THAT RIVER UNDER
STATE CONTROL.  THE WATER POWER ACT IMPOSED ADDITIONAL CONDITIONS AND
PROVIDED FOR FEDERAL LICENSING.  SEE FEDERAL POWER COMMISSION V.
NIAGARA MOHAWK CORP., 347 U.S. 239, AND GRAND RIVER DAM AUTHORITY V.
GRAND-HYDRO, 335 U.S. 359.  BUT, EVEN THOUGH A FEDERAL LICENSE THEN
BECAME GENERALLY NECESSARY, A SUBSTANTIAL MARKET FOR THE FAST LAND
STILL EXISTED, BECAUSE OF ITS IMPORTANCE TO ANY LICENSEE.  UP TO THE
TIME OF ITS "TAKING" OF THE PROPERTY, THE GOVERNMENT WAS BUT ONE OF
SEVERAL PROSPECTIVE PURCHASERS. 

AFTER THE FEDERAL GOVERNMENT ANNOUNCED THAT IT WOULD, ITSELF, DEVELOP
AND USE THE WATER POWER, IT STILL HAD TO ACQUIRE FAST LAND FOR ITS DAM
AND PLANT SITE AND FOR ITS RESERVOIR BASIN.  ALTHOUGH ITS TAKING OF THE
PROPERTY CUT OFF FURTHER COMPETITIVE BIDS FOR THE LAND, THE GOVERNMENT
HAD THE SAME CONSTITUTIONAL OBLIGATION TO PAY "JUST COMPENSATION" FOR
WHATEVER PRIVATE PROPERTY IT TOOK. 

A CLASSIC COMMENT UPON A COMPARABLE SITUATION WAS MADE BY THIS COURT
WHEN THE FEDERAL GOVERNMENT, AFTER CONDEMNING A LOCK AND DAM, SOUGHT TO
PAY ONLY FOR THE TANGIBLE PROPERTY TAKEN, WITHOUT RECOGNIZING THE
ESTABLISHED VALUE OF A FRANCHISE ISSUED BY A STATE TO EXACT TOLLS FOR
THE USE OF THE CANAL AND LOCK.  IN REQUIRING RECOGNITION OF THE LATTER
VALUE, THE COURT SAID: 

"AND HERE IT MAY BE NOTICED THAT, AFTER TAKING THIS PROPERTY, THE
GOVERNMENT WILL HAVE THE RIGHT TO EXACT THE SAME TOLLS THE NAVIGATION
COMPANY HAS BEEN RECEIVING.  IT WOULD SEEM STRANGE THAT IF BY ASSERTING
ITS RIGHT TO TAKE THE PROPERTY, THE GOVERNMENT COULD STRIP IT LARGELY
OF ITS VALUE, DESTROYING ALL THAT VALUE WHICH COMES FROM THE RECEIPT OF
TOLLS, AND, HAVING TAKEN THE PROPERTY AT THIS REDUCED VALUATION,
IMMEDIATELY POSSESS AND ENJOY ALL THE PROFITS FROM THE COLLECTION OF
THE SAME TOLLS.  IN OTHER WORDS, BY THE CONTENTION THIS ELEMENT OF
VALUE EXISTS BEFORE AND AFTER THE TAKING, AND DISAPPEARS ONLY DURING
THE VERY MOMENT AND PROCESS OF TAKING.  SURELY, REASONING WHICH LEADS
TO SUCH A RESULT MUST HAVE SOME VICE, AT LEAST THE VICE OF INJUSTICE." 
MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312, 337-338. 
WHILE THE UNITED STATES ENJOYS SPECIAL RIGHTS IN RELATION TO NAVIGABLE
STREAMS, SUCH AS ITS NAVIGATION SERVITUDE, THERE IS NO GOOD REASON WHY,
WHEN THE GOVERNMENT CONDEMNS PRIVATE PROPERTY FOR A PUBLIC USE, ITS
CONDEMNEE SHOULD NOT RECEIVE FROM THE GOVERNMENT THE SAME MEASURE OF
"JUST COMPENSATION" AS FROM OTHER CONDEMNORS.  IF THE PROPERTY TAKEN IS
"PRIVATE PROPERTY," THE CONSTITUTIONAL COMPENSATION FOR IT SHOULD BE
THE SAME.  THAT MEASURE INCLUDES THE "HIGHEST AND MOST PROFITABLE USE
FOR WHICH THE PROPERTY IS ADAPTABLE  ...  TO THE FULL EXTENT THAT THE
PROSPECT OF DEMAND FOR SUCH USE AFFECTS THE MARKET VALUE WHILE THE
PROPERTY IS PRIVATELY HELD."  OLSON V. UNITED STATES, SUPRA, AT 255. 

"  ...  NO PRECEDENT HAS BEEN ADVANCED WHICH SUGGESTS THAT A
DIFFERENT MEASURE OF COMPENSATION SHOULD BE REQUIRED WHERE THE UNITED
STATES RATHER THAN THE STATE IS THE TAKER OF THE PROPERTY FOR A PUBLIC
PROJECT.  NOR HAS ANY REASON BEEN SUGGESTED WHY AS A MATTER OF
PRINCIPLE OR POLICY THERE SHOULD BE A DIFFERENT MEASURE OF COMPENSATION
IN SUCH A CASE  ...  . 

*         *         *         *         * 

"  ...  THE UNITED STATES NO MORE THAN A STATE CAN BE EXCUSED FROM
PAYING JUST COMPENSATION MEASURED BY THE VALUE OF THE PROPERTY AT THE
TIME OF THE TAKING MERELY BECAUSE IT COULD DESTROY THE VALUE BY
APPROPRIATE LEGISLATION OR REGULATION."  UNITED STATES EX REL. T.V.A.
V. POWELSON, 319 U.S. 266, 278, 284.  SEE ALSO, UNITED STATES V. CRESS,
243 U.S. 316, 319, 326-327, 329-330. 

THE GOVERNMENT CONTENDS, HOWEVER, THAT SINCE IT NEED NOT PAY FOR
APPROPRIATING THE WATER IN THE STREAM, IT SHOULD NOT BE REQUIRED TO PAY
FOR ANY VALUE IN THE FAST LANDS THAT IS PREDICATED UPON THE RIPARIAN
LOCATION OF SUCH LANDS, OR THEIR SPECIAL VALUE IN RELATION TO THE USE
OF THAT WATER.  IN THIS CONNECTION, THE ISSUES DECIDED AND THE
STATEMENTS MADE BY JUSTICE LURTON FOR A UNANIMOUS COURT IN UNITED
STATES V. CHANDLER-CUNBAR CO., 229 U.S. 53, ARE HELPFUL.  THE CHANDLER
CASE WAS A CONDEMNATION PROCEEDING BROUGHT BY THE UNITED STATES UNDER A
SPECIAL ACT OF CONGRESS RELATING TO ALL THE LAND AND OTHER PROPERTY
BETWEEN THE ST. MARY'S FALLS SHIP CANAL AT SAULT SAINTE MARIE,
MICHIGAN, AND THE INTERNATIONAL BOUNDARY TO THE NORTH.  THE UNITED
STATES "TOOK" THIS LAND AND PROPERTY SO AS TO IMPROVE NAVIGATION IN
THESE HIGHLY NAVIGABLE WATERS.  IT EXERCISED PLENARY CONTROL OVER THE
ENTIRE RIVER AND OVER EVERYTHING WITHIN ITS BED UP TO ITS ORDINARY HIGH
WATER MARK.  IT THUS EXERCISED ITS NAVIGATION SERVITUDE AND ELIMINATED,
WITHOUT COMPENSATION, A HYDROELECTRIC DEVELOPMENT WHICH THE CHANDLER
DUNBAR COMPANY HAD CONSTRUCTED ON THE LATTER'S SUBMERGED LAND WITHIN
THE BED OF THE RIVER.  THAT ELIMINATION WAS NO LONGER IN ISSUE IN THIS
COURT.  THE PRINCIPAL QUESTION RELATED TO THE DISTRICT COURT'S AWARDS
FOR WATER RIGHTS CLAIMED BY CHANDLER AND FOR FAST LAND OWNED BY
CHANDLER ABOVE AND BEYOND THE BED OF THE RIVER.  (FN10) 

1.  THE DISTRICT COURT ALLOWED CHANDLER $550,000 FOR THE WATER
RIGHTS.  CHANDLER, HOWEVER, ESTABLISHED NO VESTED RIGHT TO SUCH WATER
UNDER STATE LAW AND THIS COURT DISALLOWED THE ENTIRE CLAIM.  IT SAID: 

"  ...  UNLESS  ...  THE WATER POWER RIGHTS ASSERTED BY THE CHANDLER
DUNBAR COMPANY ARE DETERMINED TO BE PRIVATE PROPERTY THE COURT BELOW
WAS NOT AUTHORIZED TO AWARD COMPENSATION FOR SUCH RIGHTS. 

"  ...  OWNERSHIP OF A PRIVATE STREAM WHOLLY UPON THE LANDS OF AN
INDIVIDUAL IS CONCEIVABLE; BUT THAT THE RUNNING WATER IN A GREAT
NAVIGABLE STREAM IS CAPABLE OF PRIVATE OWNERSHIP IS INCONCEIVABLE." 
ID., AT 69. 

THAT CONCLUSION IS NOT QUESTIONED. 

2.  IN FIXING COMPENSATION TO CHANDLER FOR ITS STRIP OF EIGHT ACRES
OF FAST LAND, THE DISTRICT COURT ALLOWED FOR "USE FOR CANAL AND LOCK
PURPOSES, AN ADDITIONAL VALUE OF $25,000," AND FOR THE SMALLER AREA
CONSISTING OF TWO OTHER PARCELS OF FAST LAND FOR "ITS SPECIAL VALUE FOR
CANAL AND LOCK PURPOSES AN ADDITIONAL SUM OF $10,000."  ID., AT 75. 
THESE ALLOWANCES OF ADDITIONAL VALUE FOR FAST LANDS, DUE TO THEIR
SUITABILITY AND AVAILABILITY FOR CANAL AND LOCK PURPOSES, ARE
SIGNIFICANT FOR OUR PRESENT PURPOSES.  THE COURT EXPLAINED THEM AS
FOLLOWS: 

"  ...  THAT THIS LAND HAD A PROSPECTIVE VALUE FOR THE PURPOSE OF
CONSTRUCTING A CANAL AND LOCK PARALLEL WITH THOSE IN USE HAD PASSED
BEYOND THE REGION OF THE PURELY CONJECTURAL OR SPECULATIVE.  THAT ONE
OR MORE ADDITIONAL PARALLEL CANALS AND LOCKS WOULD BE NEEDED TO MEET
THE INCREASING DEMANDS OF LAKE TRAFFIC WAS AN IMMEDIATE PROBABILITY. 
THIS LAND WAS THE ONLY LAND AVAILABLE FOR THE PURPOSE.  IT INCLUDED ALL
THE LAND BETWEEN THE CANALS IN USE AND THE BANK OF THE RIVER.  ALTHOUGH
IT IS NOT PROPER TO ESTIMATE LAND CONDEMNED FOR PUBLIC PURPOSES BY THE
PUBLIC NECESSITIES OR ITS WORTH TO THE PUBLIC FOR SUCH PURPOSE, IT IS
PROPER TO CONSIDER THE FACT THAT THE PROPERTY IS SO SITUATED THAT IT
WILL PROBABLY BE DESIRED AND AVAILABLE FOR SUCH A PURPOSE.  LEWIS ON
EMINENT DOMAIN, SEC. 707.  BOOM CO. V. PATTERSON, 98 U.S. 403, 408;
SHOEMAKER V. UNITED STATES, 147 U.S. 282; YOUNG V. HARRISON, 17
GEORGIA, 30; ALLOWAY V. NASHVILLE, 88 TENNESSEE, 510; SARGENT V.
MERRIMAC, 196 MASSACHUSETTS, 171."  ID., AT 76-77 

JUSTICE LURTON THEN REVIEWED AND QUOTED AT LENGTH FROM THE OPINIONS
IN BOOM CO. V. PATTERSON, SUPRA, AND SHOEMAKER V. UNITED STATES, SUPRA.
(FN11) 

COUPLED WITH THE REASONING OF THE COURT AND ITS QUOTATIONS FROM
EARLIER CASES, THESE ALLOWANCES SUPPORT THE POSITION TAKEN BY THE LOWER
COURTS IN THE INSTANT CASE.  THEY ARE "ADDITIONAL VALUES" ALLOWED FOR
THE LOCATION, SPECIAL SUITABILITY AND AVAILABILITY OF THE RIPARIAN LAND
FOR USE IN CONNECTION WITH THE RECOGNIZED FUTURE PUBLIC USE OF THE
AREA.  IN FACT, THE USES FOR WHICH THE ALLOWANCES ARE MADE ARE OF THE
VERY SAME TYPE AS THAT FOR WHICH THE LAND HAS BEEN CONDEMNED.  THERE IS
NO ALLOWANCE FOR STRATEGIC OR "HOLD-UP" VALUE.  THE CHANDLER CASE THUS
SUPPLIES SPECIFIC AUTHORITY FOR THE DECISION OF THE LOWER COURTS IN THE
INSTANT CASE. 

3.  IN FIXING THE COMPENSATION FOR THE SAME EIGHT ACRES AND THE
SMALLER AREA, THE DISTRICT COURT ALSO MADE A BASIC ALLOWANCE OF $20,000
FOR THE VALUE OF THE STRIP "FOR ALL GENERAL PURPOSES, LIKE RESIDENCES,
OR HOTELS, FACTORY SITES, DISCONNECTED WITH WATER POWER ETC.," AND
$10,000 IN RELATION TO THE SMALLER AREA FOR "GENERAL WHARFAGE, DOCK AND
WAREHOUSE PURPOSES."  ID., AT 74, 75.  THIS COURT UPHELD BOTH, THEREBY
FURTHER DEMONSTRATING THAT THE LOCATION OF LAND IS A PROPER ELEMENT TO
BE CONSIDERED IN DETERMINING "JUST COMPENSATION." 

4.  ON THE OTHER HAND, THE DISTRICT COURT APPROVED ONE OTHER ELEMENT
OF "ADDITIONAL VALUE" IN RELATION TO THESE LAND AREAS WHICH THIS COURT
REJECTED.  IN VALUING THE EIGHT ACRES, THE DISTRICT COURT ALLOWED AN
"ADDITIONAL VALUE" OF $20,000 FOR "USE AS FACTORY SITE IN CONNECTION
WITH THE DEVELOPMENT OF 6,500 HORSE POWER, EITHER AS A SINGLE SITE OR
FOR SEVERAL FACTORIES TO USE THE SURPLUS OF 6,500 HORSE POWER NOT NOW
USED IN THE CITY."  ID., AT 74-75.  LIKEWISE, IN VALUING THE SMALLER
AREA, THE DISTRICT COURT ALLOWED AN ADDITIONAL VALUE OF $5,000 IN
"CONNECTION WITH THE CANAL ALONG THE RAPIDS, IF USED AS A PART OF THE
DEVELOPMENT OF 4,500 (6,500) HORSE POWER."  ID., AT 75.  IT HAS BEEN
SUGGESTED THAT THESE REJECTIONS ARE IN CONFLICT WITH THE COURT'S
SIMULTANEOUS APPROVAL OF THE ADDITIONAL VALUES OF THE SAME LAND FOR
CANAL OR LOCK PURPOSES.  THE GOVERNMENT ALSO CLAIMS TO FIND IN THESE
REJECTIONS SOME SUPPORT FOR ITS OPPOSITION IN THE INSTANT CASE TO ANY
ALLOWANCE REFLECTING THE FAVORABLE LOCATION OF THE FAST LAND IT HAS
TAKEN ON THE BANKS OF THE SAVANNAH RIVER. 

THE COURT'S REASONS FOR REJECTING THESE PARTICULAR VALUES IN THE
CHANDLER CASE, AS EXPRESSLY STATED BY JUSTICE LURTON, LEND NO SUCH
SUPPORT TO THE GOVERNMENT'S POSITION IN THE INSTANT CASE.  HE SAID: 

"  ...  THESE 'ADDITIONAL' VALUES WERE BASED UPON THE ERRONEOUS
HYPOTHESIS THAT THAT COMPANY (CHANDLER-DUNBAR) HAD A PRIVATE PROPERTY
INTEREST IN THE WATER POWER OF THE RIVER, NOT POSSIBLY NEEDED NOW OR IN
THE FUTURE FOR PURPOSES OF NAVIGATION, AND THAT THAT EXCESS OR SURPLUS
WATER WAS CAPABLE, BY SOME EXTENSION OF THEIR WORKS ALREADY IN THE
RIVER, OF PRODUCING 6,500 HORSE POWER. 

"HAVING DECIDED THAT THE CHANDLER-DUNBAR COMPANY AS RIPARIAN OWNERS
HAD NO SUCH VESTED PROPERTY RIGHT IN THE WATER POWER INHERENT IN THE
FALLS AND RAPIDS OF THE RIVER, AND NO RIGHT TO PLACE IN THE RIVER THE
WORKS ESSENTIAL TO ANY PRACTICAL USE OF THE FLOW OF THE RIVER, THE
GOVERNMENT CANNOT BE JUSTLY REQUIRED TO PAY FOR AN ELEMENT OF VALUE
WHICH DID NOT INHERE IN THES  PARCELS AS UPLAND."  ID., AT 75-76. 

IN OTHER WORDS, THE REJECTED VALUES WERE NOT PART OF THE FAIR MARKET
VALUE OF THE LAND FOR ANY ASSURED USE.  THEY SOUGHT TO RECOGNIZE A
VALUE IN THE FAST LAND FOR FACTORY SITES WHICH WERE CONDITIONED UPON
THERE BEING EXCESS WATER IN THE STREAM NOT NEEDED BY THE GOVERNMENT FOR
NAVIGATION, AND FURTHER CONDITIONED UPON THE DEVELOPMENT BY CHANDLER OF
STRUCTURES IN THE BED OF THE STREAM TO DEVELOP 6,500 ADDITIONAL
HORSEPOWER FROM THIS EXCESS WATER.  NOT ONLY WAS THERE FOUND TO BE NO
SUCH EXCESS WATER BUT CHANDLER'S POTENTIAL POWER DEVELOPMENT WITHIN THE
BED OF THE STREAM WAS EXPRESSLY DISALLOWED.  THE REJECTION THUS WAS DUE
TO THE SPECULATIVE NATURE OF THE PROPSOED USE AND NOT TO THE FAVORABLE
RIPARIAN LOCATION OF THE LAND FOR ASSURED USES.  IT WAS THOROUGHLY
CONSISTENT WITH THE COURT'S ALLOWANCE OF ESTABLISHED VALUES OF THE LAND
FOR CANAL AND LOCK PURPOSES. 

TO ACCEPT THE GOVERNMENT'S POSITION IN THE INSTANT CASE WOULD, IN
EFFECT, EXTEND ITS NAVIGATION SERVITUDE FAR ABOVE AND BEYOND THE HIGH
WATER MARK OF THE SAVANNAH RIVER.  IN THE FACE OF DECISIONS UNIFORMLY
LIMITING THAT SERVITUDE TO THE BED OF THE STREAM, THE GOVERNMENT WOULD
TAKE 4,700 ACRES OF PRIVATE PROPERTY FOR A PUBLIC USE, SUBSTANTIALLY
WITHOUT COMPENSATION THEREFOR.  THIS WOULD ENFORCE THE GOVERNMENT'S
RIGHT OF CONDEMNATION, WHILE REPUDIATING ITS CONSTITUTIONAL OBLIGATION
TO PAY FOR THE PRIVATE PROPERTY TAKEN. 

THE JUSTICE OF SUSTAINING THE INTERPRETATION PLACED ON THE FIFTH
AMENDMENT BY THE COURTS BELOW IS EMPHASIZED IN THE FOLLOWING STATEMENTS
MADE BY THIS COURT IN MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148
U.S. 312, 324, 325: 

"  ...  THE QUESTION PRESENTED IS NOT WHETHER THE UNITED STATES HAS
THE POWER TO CONDEMN AND APPROPRIATE THIS PROPERTY OF THE MONONGAHELA
COMPANY, FOR THAT IS CONCEDED, BUT HOW MUCH IT MUST PAY AS COMPENSATION
THEREFOR.  OBVIOUSLY, THIS QUESTION, AS ALL OTHERS WHICH RUN ALONG THE
LINE OF THE EXTENT OF THE PROTECTION THE INDIVIDUAL HAS UNDER THE
CONSTITUTION AGAINST THE DEMANDS OF THE GOVERNMENT, IS OF IMPORTANCE;
FOR IN ANY SOCIETY THE FULNESS AND SUFFICIENCY OF THE SECURITIES WHICH
SURROUND THE INDIVIDUAL IN THE USE AND ENJOYMENT OF HIS PROPERTY
CONSTITUTE ONE OF THE MOST CERTAIN TESTS OF THE CHARACTER AND VALUE OF
THE GOVERNMENT.  THE FIRST TEN AMENDMENTS TO THE CONSTITUTION, ADOPTED
AS THEY WERE SOON AFTER THE ADOPTION OF THE CONSTITUTION, ARE IN THE
NATURE OF A BILL OF RIGHTS, AND WERE ADOPTED IN ORDER TO QUIET THE
APPREHENSION OF MANY, THAT WITHOUT SOME SUCH DECLARATION OF RIGHTS THE
GOVERNMENT WOULD ASSUME, AND MIGHT BE HELD TO POSSESS, THE POWER TO
TRESPASS UPON THOSE RIGHTS OF PERSONS AND PROPERTY WHICH BY THE
DECLARATION OF INDEPENDENCE WERE AFFIRMED TO BE UNALIENABLE RIGHTS. 

     *      *         *         *         * 

"  ...  AND IN THIS THERE IS A NATURAL EQUITY WHICH COMMENDS IT TO
EVERY ONE.  IT IN NO WISE DETRACTS FROM THE POWER OF THE PUBLIC TO TAKE
WHATEVER MAY BE NECESSARY FOR ITS USES; WHILE, ON THE OTHER HAND, IT
PREVENTS THE PUBLIC FROM LOADING UPON ONE INDIVIDUAL MORE THAN HIS JUST
SHARE OF THE BURDENS OF GOVERNMENT, AND SAYS THAT WHEN HE SURRENDERS TO
THE PUBLIC SOMETHING MORE AND DIFFERENT FROM THAT WHICH IS EXACTED FROM
OTHER MEMBERS OF THE PUBLIC, A FULL AND JUST EQUIVALENT SHALL BE
RETURNED TO HIM." 

FOR THE FOREGOING REASONS, THE JUDGMENT OF THE COURT OF APPEALS
SHOULD BE AFFIRMED. 

FN1  SEE OPINION OF DISTRICT JUDGE WYCHE SPEAKING, IN 1949, FOR THE
DISTRICT COURTS FOR THE WESTERN DISTRICT OF SOUTH CAROLINA AND THE
SOUTHERN DISTRICT OF GEORGIA, 86 F. SUPP. 467; REPORT OF COMMISSIONERS,
IN 1953 ( R. 14); OPINION OF DISTRICT JUDGE WYCHE CONFIRMING, IN 1953,
THE COMMISSIONER'S REPORT WHICH ALSO WAS CONFIRMED BY DISTRICT JUDGE
SCARLETT FOR THE SOUTHERN DISTRICT OF GEORGIA, 144 F. SUPP 719; OPINION
OF DISTRICT JUDGE SYCHE, SITTING WITH DISTRICT JUDGE SCARLETT,
OVERRULING, IN 1953, MOTION TO AMEND FINDINGS AND ENTER A NEW JUDGMENT
(R. 55); OPINION OF CHIEF JUDGE PARKER, IN 1954, JOINED BY CIRCUIT
JUDGES SOPER AND DOBIE, CONSTITUTING THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT, 215 F.2D 592; AND OPINION OF CHIEF JUDGE HUTCHESON, IN
1955, JOINED BY CIRCUIT JUDGE HOLMES AND DISTRICT JUDGE DAWKINS,
CONSTITUTING THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, 221 F.2D 299. 
SEE ALSO, OPINION RENDERED, IN 1947, IN SAVANNAH RIVER ELECTRIC CO. V.
FEDERAL POWER COMMISSION, 164 F.2D 408, BY THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT. 

FN2  TWIN CITY'S 4,700 ACRES WOULD INCLUDE ALL EXCEPT ABOUT 170 ACRES
OF THE LAND AND RIGHTS NECESSARY FOR THE LOCATION OF A DAM, PLANT AND
RESERVOIR BASIN WITH A 60-FOOT HEAD OF WATER AT PRICE'S ISLAND.  A 60
FOOT HEAD AT THAT POINT WITH A 5-FOOT SURCHARGE WOULD REQUIRE ABOUT 400
ADDITIONAL ACRES INSTEAD OF 170, A 70-FOOT HEAD WITH A 5-FOOT
SURCHARGE, 1,250 ACRES, AND AN 80-FOOT HEAD WITH A 5-FOOT SURCHARGE,
2,800 ACRES.  THE TWIN CITY LAND WAS NOT ONLY AVAILABLE BUT ESSENTIAL
FOR SUCH DEVELOPMENTS IN THE VICINITY OF PRICE'S ISLAND.  CF. UNITED
STATES EX REL. T.V.A. V. POWELSON, 319 U.S. 266; OLSON V. UNITED
STATES, 292 U.S. 246.    FN3  SAVANNAH RIVER ELECTRIC CO. V. FEDERAL
POWER COMMISSION, SUPRA. 

FN4  THESE 188.50 ACRES ARE THOSE ON WHICH THE FLOWAGE RIGHTS HAVE
BEEN FOUND BY THE LOWER COURTS TO BE VALID AND ENFORCEABLE, AS
DISTINGUISHED FROM THE 745.58 ACRES OF "OPTIONS" WHICH HAVE BEEN
TREATED BY THE LOWER COURTS AS UNENFORCEABLE.  THE FLOWAGE RIGHTS WERE
ACQUIRED BY TWIN CITY THROUGH DEEDS OF PURCHASE AND, FOR RESERVOIR
PURPOSES, THEY ARE AS VALUABLE AS A TITLE IN FEE.  THEY EVIDENCE A
CONTROL OVER RIPARIAN LAND WITHOUT WHICH WATER RIGHTS ARE USELESS FOR
THE DEVELOPMENT OF A HYDROELECTRIC PROJECT. 

FN5  THE ANSWERS FILED BY THE CONDEMNEES IN THIS ACTION WERE SO
CONSTRUED BY THE DISTRICT COURT.  THE UNITED STATES, RELYING ON UNITED
STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, MOVED TO STRIKE PORTIONS OF
THE AMENDED ANSWERS FILED BY THE CONDEMNEES.  IN DENYING THESE MOTIONS,
THE DISTRICT COURT SAID: 

"  ...  BUT, I DO NOT UNDERSTAND THAT THE CONDEMNEE BY ITS ANSWERS
CLAIMS TO HAVE ANY PRIVATE PROPERTY RIGHT IN THE 'WATER POWER CAPACITY'
OR THE 'RAW WATER' OF THE RIVER; NEITHER HAS IT BUILT, NOR DOES IT OWN,
ANY STRUCTURES IN THE STREAM FOR WHICH IT CLAIMS COMPENSATION.  ON THE
CONTRARY, ITS CLAIM IS LIMITED TO THE FAIR MARKET VALUE OF ITS FAST
LANDS, BASED UPON 'THE MOST PROFITABLE USE TO WHICH THE LAND CAN
PROBABLY BE PUT IN THE REASONABLY NEAR FUTURE.'"  UNITED STATES V.
1532.63 ACRES OF LAND, 86 F. SUPP.  467, 476. 

FN6  FOLLOWING THE ABOVE STATEMENT, WE ILLUSTRATED, IN A FOOTNOTE,
THE LIMITATION OF THE SERVITUDE TO THE BED OF THE STREAM AS FIXED BY
ITS ORDINARY HIGH-WATER MARK.  WE SHOWED THAT IN THE CHICAGO CASE,
SUPRA, THIS COURT PERMITTED THE OVERFLOWING, WITHOUT COMPENSATION, OF
LAND WITHIN THE BED OF THE STREAM BUT DENIED APPLICATION OF THE
SERVITUDE TO NEARBY LAND OUTSIDE OF THE BED OF THE STREAM.  THE COURT
ALSO REMANDED THAT CASE FOR A DETERMINATION OF WHETHER OR NOT CERTAIN
OTHER LANDS WERE WITHIN THE BED OF THE STREAM. 

FN7  NEAR THIS POINT, THERE ALSO APPEARS THE FOLLOWING STATEMENT
WHICH HAS SIGNIFICANCE HERE IN VIEW OF THE COMPETITION BETWEEN TWIN
CITY AND OTHERS PRIOR TO THE TAKING OF THE LAND IN QUESTION BY THE
UNITED STATES: 

"  ...  IT IS COMMON KNOWLEDGE THAT PUBLIC SERVICE CORPORATIONS AND
OTHERS HAVING THAT POWER (OF CONDEMNATION) FREQUENTLY ARE ACTUAL OR
POTENTIAL COMPETITORS, NOT ONLY FOR TRACTS HELD IN SINGLE OWNERSHIP BUT
ALSO FOR RIGHTS OF WAY, LOCATIONS, SITES AND OTHER AREAS REQUIRING THE
UNION OF NUMEROUS PARCELS HELD BY DIFFERENT OWNERS.  AND, TO THE EXTENT
THAT PROBABLE DEMAND BY PROSPECTIVE PURCHASERS OR CONDEMNORS AFFECTS
MARKET VALUE, IT IS TO BE TAKEN INTO ACCOUNT."  292 U.S., AT 256. 

SEE UNITED STATES EX REL. T.V.A. V. POWELSON, SUPRA, AT 275; AND ALSO
GRAND RIVER DAM AUTHORITY V. GRAND-HYDRO, 335 U.S. 359; UNITED STATES
V. MILLER, 317 U.S. 369; MCCANDLESS V. UNITED STATES, 298 U.S. 342;
CITY OF NEW YORK V. SAGE, 239 U.S. 57; BOOM CO. V. PATTERSON, 98 U.S.
403, 407-408. 

FN8  THE FOLLOWING ARE EXCERPTS FROM THE COMMISSIONER'S REPORT: 

"  ...  BY REASON OF THEIR GEOGRAPHICAL LOCATION, THESE LANDS AND
OTHER PROPERTY RIGHTS OF TWIN CITY HAD A PECULIAR VALUE FOR WATER POWER
PURPOSES  ...  . 

     *         *        *         *         * 

"  ...  ALL THE WITNESSES, IN THE MAIN, HAD TAKEN THE STREAM PLANT
COMPARISON METHOD AS ONE OF THE PRINCIPAL BASES FOR ARRIVING AT THE
WATER POWER VALUE OF THE PROPERTY OF TWIN CITY  ...  .  IN THAT
CONNECTION, WE WISH TO MAKE IT CLEAR THAT THE FIGURE ARRIVED AT BY THE
SO-CALLED 'STEAM PLANT COMPARISON METHOD' ($1,600,000), WAS NOT TAKEN
AS AN ABSOLUTE GUIDE, OR BASIS, BUT WAS USED AS ONE OF THE PRINCIPAL
BASES, TOGETHER WITH NUMEROUS OTHER FACTORS CONSIDERED BY THESE EXPERT
WITNESSES ...  ." 

FN9  THE ESTIMATE WHICH THE COMMISSIONERS MADE OF THE VALUE OF THE
LAND BASED UPON ITS TIMBER AND AGRICULTURAL VALUE, PLUS AN ALLOWANCE OF
$5 PER ACRE FOR THE ASSEMBLY OF THE TITLE UNDER A SINGLE OWNERSHIP, WAS
ABOUT $37 PER ACRE IN SOUTH CAROLINA AND $31 PER ACRE IN GEORGIA,
PRODUCING A TOTAL OF $150,841.85.  THIS CONTRASTS WITH THE $267.02 PER
ACRE, AND A TOTAL "JUST COMPENSATION" OF $1,257,033.20, APPROVED BY THE
COMMISSIONERS AND THE COURTS BELOW. 

FN10  THE ALLOWANCES OF VALUE ARE HERE DISCUSSED IN THE FOLLOWING
ORDER:  (1) FOR WATER RIGHTS; (2) FOR VALUE OF LAND FOR CANAL AND LOCK
PURPOSES; (3) FOR VALUE OF LAND FOR GENERAL PURPOSES; AND (4) FOR VALUE
OF LAND FOR FACTORY SITES CONTINGENT UPON AVAILABILITY OF SURPLUS
PRIVATELY DEVELOPED ELECTRIC POWER.  IN THE TEXT OF THE CHANDLER CASE,
AT PAGES 74-75, THE VALUE OF CANAL AND LOCK PURPOSES IS TREATED LAST. 

FN11  ALTHOUGH ERRONEOUSLY REFERRING TO IT HAS HAVING BEEN USED IN A
LOWER COURT INSTRUCTION IN THE SHOEMAKER CASE, JUSTICE LURTON'S
QUOTATION OF THE FOLLOWING LANGUAGE LENDS THIS COURT'S APPROVAL TO IT: 

"  ...  'THE MARKET VALUE OF THE LAND INCLUDES ITS VALUE FOR ANY USE
TO WHICH IT MAY BE PUT, AND ALL THE USES TO WHICH IT IS ADAPTED, AND
NOT MERELY THE CONDITION IN WHICH IT IS AT THE PRESENT TIME, AND THE
USE TO WHICH IT NOW APPLIED BY THE OWNER; ...  THAT IF, BY REASON OF
ITS LOCATION, ITS SURROUNDINGS, ITS NATURAL ADVANTAGES, ITS ARTIFICIAL
IMPROVEMENTS OR ITS INTRINSIC CHARACTER, IT IS PECULIARLY ADAPTED TO
SOME PARTICULAR USE - E.G., TO THE USE OF A PUBLIC PARK - ALL THE
CIRCUMSTANCES WHICH MAKE UP THIS ADAPTABILITY MAY BE SHOWN, AND THE
FACT OF SUCH ADAPTATION MAY BE TAKEN INTO CONSIDERATION IN ESTIMATING
THE COMPENSATION.'"  229 U.S., AT 78. 
..END :





















UNITED STATES V. MINKER 350 U.S. 179 


ARGUED NOVEMBER 14, 1955 - DECIDED JANUARY 16, 1956 - 217 F.2D 350,
AFFIRMED.  219 F.2D 137, REVERSED. 


THAT "ANY IMMIGRATION OFFICER  ...  SHALL HAVE POWER TO REQUIRE BY
SUBPENA THE ATTENDANCE AND TESTIMONY OF WITNESSES BEFORE IMMIGRATION
OFFICERS  ...  RELATING TO THE PRIVILEGE OF ANY PERSON TO ENTER,
REENTER, RESIDE IN, OR PASS THROUGH THE UNITED STATES OR CONCERNING ANY
MATTER WHICH IS MATERIAL AND RELEVANT TO THE ENFORCEMENT OF THIS ACT
AND THE ADMINISTRATION OF THE SERVICE  ...  ."  HELD: THIS SECTION DOES
NOT EMPOWER AN IMMIGRATION OFFICER TO SUBPOENA A NATURALIZED CITIZEN
WHO IS THE SUBJECT OF AN INVESTIGATION BY THE SERVICE TO TESTIFY IN AN
ADMINISTRATIVE PROCEEDING BEFORE SUCH OFFICER, WHERE THE PURPOSE OF THE
INVESTIGATION IS TO DETERMINE WHETHER GOOD CAUSE EXISTS FOR THE
INSTITUTION OF DENATURALIZATION PROCEEDINGS AGAINST SUCH CITIZEN UNDER
SEC. 340(A) OF THE ACT.  PP. 180-190. 

(A)  IN THE CLAUSE, "CONCERNING ANY MATTER WHICH IS MATERIAL AND
RELEVANT TO THE ENFORCEMENT OF THIS ACT," THE WORD "ACT" EMBRACES THE
ENTIRE STATUTE AND MAY NOT BE CONSTRUED AS REFERRING ONLY TO A
PARTICULAR TITLE OR SECTION THEREOF.  PP. 184-186. 

(B) IN THIS CONTEXT, THE WORD "WITNESSES" IS AMBIGUOUS, AND IT MUST
BE CONSTRUED AS NOT INCLUDING A CITIZEN WHO IS HIMSELF THE SUBJECT OF A
DENATURALIZATION INVESTIGATION.  PP. 186-190. 

UNITED STATES V. MINKER. 

NO. 35.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT.* 

*TOGETHER WITH NO. 47, FALCONE ET AL. V. BARNES, OFFICER IN CHARGE,
IMMIGRATION AND NATURALIZATION SERVICE, ON CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, ARGUED NOVEMBER 14-15,
1955. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

BECAUSE OF CONFLICTING CONSTRUCTIONS BY THE COURTS OF APPEALS FOR THE
SECOND AND THIRD CIRCUITS OF SEC. 235(A) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 163, 198, WE BROUGHT THESE CASES
HERE.  349 U.S. 904; 349 U.S. 927.  THEY WERE HEARD IN SEQUENCE, AND,
SINCE MINOR DIFFERENCES IN THEIR FACTS ARE IRRELEVANT TO THE PROBLEMS
NOW BEFORE US, THEY MAY BE DISPOSED OF IN ONE OPINION. 

HAVE POWER TO REQUIRE BY SUBPENA THE ATTENDANCE AND TESTIMONY OF
WITNESSES BEFORE IMMIGRATION OFFICERS  ...  RELATING TO THE PRIVILEGE
OF ANY PERSON TO ENTER, REENTER, RESIDE IN, OR PASS THROUGH THE UNITED
STATES OR CONCERNING ANY MATTER WHICH IS MATERIAL AND RELEVANT TO THE
ENFORCEMENT OF THIS ACT AND THE ADMINISTRATION OF THE SERVICE, AND TO
THAT END MAY INVOKE THE AID OF ANY COURT OF THE UNITED STATES."  THE
CONTROLLING ISSUE PRESENTED BY THESE CASES IS WHETHER THIS SECTION
EMPOWERS AN IMMIGRATION OFFICER TO SUBPOENA A NATURALIZED CITIZEN WHO
IS THE SUBJECT OF AN INVESTIGATION BY THE SERVICE, WHERE THE PURPOSE OF
THE INVESTIGATION IS TO DETERMINE IF GOOD CAUSE EXISTS FOR THE
INSTITUTION OF DENATURALIZATION PROCEEDINGS UNDER SEC. 340(A) OF THE
ACT.  (FN2) 

IN NO. 35, THE DISTRICT DIRECTOR OF THE IMMIGRATION AND
NATURALIZATION SERVICE AT PHILADELPHIA, IN ACCORDANCE WITH SEC. 340.11
OF THE SERVICE'S REGULATIONS, (FN3) INSTITUTED AN INVESTIGATION OF
RESPONDENT FOR THE AFOREMENTIONED PURPOSE.  IN FURTHERANCE OF THIS
INQUIRY INTO THE LEGALITY OF MINKER'S NATURALIZATION THE DIRECTOR
SUBPOENAED HIM TO GIVE TESTIMONY AT THE OFFICES OF THE SERVICE.  PRIOR
TO THE REQUIRED DATE OF HIS APPEARANCE, HE MOVED TO QUASH THE SUBPOENA
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA UPON THE GROUND, INTER ALIA, THAT IT WAS UNAUTHORIZED BY
THE ACT.  THIS MOTION WAS DENIED, IN RE MINKER, 118 F. SUPP. 264, AND
NO APPEAL WAS TAKEN.  WHEN RESPONDENT THEREAFTER FAILED TO OBEY THE
SUBPOENA, THE DISTRICT COURT, ON APPLICATION OF THE DISTRICT DIRECTOR,
ORDERED RESPONDENT TO APPEAR BEFORE THE SERVICE AND TESTIFY.  HE
DISREGARDED THIS ORDER.  AFTER A HEARING HE WAS ADJUDGED IN CONTEMPT
FOR SO DOING AND FINED $500.  THE COURT OF APPEALS FOR THE THIRD
CIRCUIT REVERSED, HOLDING THAT WHILE THE POWER TO SUBPOENA UNDER SEC.
235(A) WAS AVAILABLE FOR INVESTIGATIONS DIRECTED TOWARD
DENATURALIZATION PROCEEDINGS, RESPONDENT AS A PUTATIVE DEFENDANT IN
SUCH A PROCEEDING WAS NOT A "WITNESS" WITHIN THE MEANING OF THE
HIM.  (FN4)  217 F.2D 350. 

IN NO. 47, EACH PETITIONER WAS SERVED WITH A SUBPOENA ISSUED BY THE
OFFICER IN CHARGE OF THE IMMIGRATION AND NATURALIZATION SERVICE AT
SYRACUSE, NEW YORK.  THE SUBPOENAS COMMANDED PETITIONERS' APPEARANCE
AND TESTIMONY, AND REQUIRED THEM TO PRODUCE SPECIFIED DOCUMENTS.  THEY
APPEARED WITH DOCUMENTS AS ORDERED, BUT REFUSED TO BE SWORN OR TO
TESTIFY.  THEREUPON AN APPLICATION FOR AN ORDER OF COMPLIANCE WAS MADE
BY THE SERVICE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF NEW YORK; BUT THE COURT, DENYING THE SERVICE'S AUTHORITY,
REFUSED TO COMPEL PETITIONERS TO APPEAR AND GIVE TESTIMONY.  116 F.
SUPP. 464.  ON APPEAL, TO THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
THIS JUDGMENT WAS REVERSED.  219 F.2D 137.  THE COURT HELD THAT SEC.
235(A) OF THE ACT PERMITTED THE IMMIGRATION OFFICER TO SUBPOENA THE
PETITIONERS IN FURTHERANCE OF THE SERVICE'S INVESTIGATION OF THEM UNDER
SEC. 340.11 OF THE REGULATIONS.  THE DECISION ASSUMED, ALTHOUGH THE
COURT DID NOT DISCUSS THE QUESTION, THAT EACH PETITIONER, EVEN THOUGH A
SUBJECT OF INVESTIGATION, WAS A "WITNESS" WITHIN THE MEANING OF SEC.
235(A).  (FN5) 

THIS BRINGS US TO AN EXAMINATION OF THE SCOPE OF SEC. 235(A).  IT HAD
ITS GENESIS IN SEC. 16 OF THE IMMIGRATION ACT OF 1917, 39 STAT. 874,
885, WHICH DEALT WITH THE EXAMINATION OF ENTERING ALIENS BY THE
IMMIGRATION SERVICE.  WITH RESPECT TO SUBPOENAS THE SECTION PROVIDED:
"ANY COMMISSIONER OF IMMIGRATION OR INSPECTOR IN CHARGE SHALL ALSO HAVE
POWER TO REQUIRE BY SUBPOENA THE ATTENDANCE AND TESTIMONY OF WITNESSES
BEFORE SAID INSPECTORS AND THE PRODUCTION OF BOOKS, PAPERS, AND
DOCUMENTS TOUCHING THE RIGHT OF ANY ALIEN TO ENTER, REENTER, RESIDE IN,
OR PASS THROUGH THE UNITED STATES, AND TO THAT END MAY INVOKE THE AID
OF ANY COURT OF THE UNITED STATES  ...  ."  OBVIOUSLY, THIS PROVISION
STRICTLY DEFINED THE PURPOSES FOR WHICH OFFICERS OF THE SERVICE COULD
SUBPOENA WITNESSES.  IT DID NOT GIVE THEM POWER TO ISSUE SUBPOENAS AS
AIDS IN INVESTIGATING POTENTIAL NATURALIZATION OFFENSES. 

THE 1952 ACT IN SEC. 235(A) RETAINED THE SUBSTANCE OF THIS LANGUAGE
IN SEC. 16.  BUT THE WORD "ALIEN" WAS CHANGED TO "PERSON," AND
ADDITIONAL LANGUAGE EXTENDED THE SUBPOENA POWER TO "ANY MATTER WHICH IS
MATERIAL AND RELEVANT TO THE ENFORCEMENT OF THIS ACT AND THE
ADMINISTRATION OF THE SERVICE."  IF THE ADDITIONAL CLAUSE, FOLLOWING
THE PORTION "RELATING TO THE PRIVILEGE OF ANY PERSON TO ENTER, REENTER,
RESIDE IN, OR PASS THROUGH THE UNITED STATES," HAD MERELY READ "AND ANY
OTHER MATTER WHICH IS MATERIAL AND RELEVANT," THE DOCTRINE OF EJUSDEM
GENERIS WOULD APPROPRIATELY BE INVOKED TO LIMIT THE SUBPOENA POWER TO
AN INVESTIGATION PERTAINING TO QUESTIONS OF ADMISSION AND DEPORTATION. 
THE COMPREHENSIVE ADDITION OF THE CLAUSE "OR CONCERNING ANY MATTER
WHICH IS MATERIAL AND RELEVANT TO THE ENFORCEMENT OF THIS ACT AND THE
ADMINISTRATION OF THE SERVICE," PRECLUDES SUCH NARROWING READING. 
"ACT" ENCOMPASSES THE FULL RANGE OF SUBJECTS COVERED BY THE STATUTE. 
THE IMMIGRATION AND NATIONALITY ACT OF 1952 BROUGHT TOGETHER IN ONE
STATUTE THE PREVIOUSLY ATOMIZED SUBJECTS OF IMMIGRATION, NATIONALITY
AND NATURALIZATION.  THE UNQUALIFIED USE OF THE WORD "ACT" IN SEC.
235(A), IF READ AS ORDINARY ENGLISH, EMBRACES ALL OF THESE SUBJECTS
EVEN THOUGH SEC. 235(A) IS ITSELF IN THE IMMIGRATION TITLE OF THE
STATUTE.  BUT "THE TITLE OF A STATUTE AND THE HEADING OF A SECTION
CANNOT LIMIT THE PLAIN MEANING  ...  ."  BROTHERHOOD OF RAILROAD
TRAINMEN V. BALTIMORE & OHIO R. CO., 331 U.S. 519, 528-529.  THROUGHOUT
THIS STATUTE THE WORD "ACT" IS GIVEN ITS FULL SIGNIFICANCE.  THE WORD
EMBRACES THE ENTIRE STATUTE.  (FN6)  ON THE OTHER HAND, WHEN ONLY A
PARTICULAR TITLE IS REFERRED TO, IT IS DESIGNATED AS SUCH, AND WHEN THE
REFERENCE IS TO A SECTION, THAT WORD IS EMPLOYED.  (FN7)  NO
JUSTIFICATION APPEARS FOR TREATING "ACT" IN SEC. 235(A) AS MEANING
"SECTION."  THUS FAR THE SECOND AND THIRD CIRCUITS ARE IN AGREEMENT. 

WE COME THEN TO THE QUESTION UPON WHICH THE TWO COURTS OF APPEALS
PART WAYS IN THEIR CONSTRUCTION OF SEC. 235(A), NAMELY, WHETHER
SALVATORE AND JOSEPH FALCONE IN THE ONE CASE AND ABRAHAM MINKER IN THE
OTHER, ALTHOUGH EACH THE SUBJECT OF A DENATURALIZATION INVESTIGATION
UNDER SEC. 340.11 OF THE REGULATIONS, WERE "WITNESSES" WITHIN THE
MEANING OF THE POWER GIVEN TO "ANY IMMIGRATION OFFICER" TO REQUIRE "BY
SUBPOENA THE ATTENDANCE AND TESTIMONY OF WITNESSES" BEFORE IMMIGRATION
OFFICERS. 

IF THE ANSWER TO THE QUESTION MERELY DEPENDED UPON WHETHER, AS A
MATTER OF ALLOWABLE ENGLISH USAGE, THE WORD "WITNESS" MAY FAIRLY
DESCRIBE A PERSON IN THE POSITION OF MINKER AND THE FALCONES, IT COULD
NOT BE DENIED THAT THE WORD COULD AS READILY BE DEEMED TO COVER PERSONS
IN THEIR POSITION AS NOT.  IN SHORT, THE WORD IS PATENTLY AMBIGUOUS:
IT CAN FAIRLY BE APPLIED TO ANYONE WHO GIVES TESTIMONY IN A PROCEEDING,
ALTHOUGH THE PROCEEDING IMMEDIATELY OR POTENTIALLY INVOLVES HIM AS A
PARTY, OR IT MAY BE RESTRICTED TO THE PERSON WHO GIVES TESTIMONY IN
ANOTHER'S CASE. 

IT IS PERTINENT TO NOTE THE BREADTH OF SEC. 235(A) NOT ONLY WITH
RESPECT TO THE TYPE OF INVESTIGATION IN WHICH A SUBPOENA MAY BE ISSUED
("ANY MATTER WHICH IS MATERIAL AND RELEVANT TO THE ENFORCEMENT OF THIS
ACT"), BUT ALSO WITH RESPECT TO THE MEMBER OF THE SERVICE EMPOWERED TO
ISSUE IT. THE POWER IS GRANTED "ANY IMMIGRATION OFFICER," WHO IN TURN
IS DEFINED IN SEC. 101(A)(18) OF THE ACT AS "ANY EMPLOYEE OR CLASS OF
EMPLOYEES OF THE SERVICE OR OF THE UNITED STATES DESIGNATED BY THE
ATTORNEY GENERAL, INDIVIDUALLY OR BY REGULATION, TO PERFORM THE
FUNCTIONS OF AN IMMIGRATION OFFICER SPECIFIED BY THIS ACT OR ANY
CONSIDERATIONS INHERENT IN THE NATURE OF THE POWER SOUGHT TO BE
EXERCISED THAT MAKE FOR A RESTRICTIVE READING OF THE JANUS-FACED WORD
"WITNESS."  THE SUBPOENA POWER "IS A POWER CAPABLE OF OPPRESSIVE USE,
ESPECIALLY WHEN IT MAY BE INDISCRIMINATELY DELEGATED AND THE SUBPOENA
IS NOT RETURNABLE BEFORE A JUDICIAL OFFICER  ...  .  TRUE, THERE CAN BE
NO PENALTY INCURRED FOR CONTEMPT BEFORE THERE IS A JUDICIAL ORDER OF
ENFORCEMENT.  BUT THE SUBPOENA IS IN FORM AN OFFICIAL COMMAND, AND EVEN
THOUGH IMPROVIDENTLY ISSUED IT HAS SOME COERCIVE TENDENCY, EITHER
BECAUSE OF IGNORANCE OF THEIR RIGHTS ON THE PART OF THOSE WHOM IT
PURPORTS TO COMMAND OR THEIR NATURAL RESPECT FOR WHAT APPEARS TO BE AN
OFFICIAL COMMAND, OR BECAUSE OF THEIR RELUCTANCE TO TEST THE SUBPOENA'S
VALIDITY BY LITIGATION."  CUDAHY PACKING CO., LTD. V. HOLLAND, 315 U.S.
357, 363-364. 

THESE CONCERNS, RELEVANT TO THE CONSTRUCTION OF THIS AMBIGUOUSLY
WORDED POWER, ARE EMPHATICALLY PERTINENT TO INVESTIGATIONS THAT
CONSTITUTE THE FIRST STEP IN PROCEEDINGS CALCULATED TO BRING ABOUT THE
DENATURALIZATION OF CITIZENS.  SEE SCHNEIDERMAN V. UNITED STATES, 320
U.S. 118; BAUMGARTNER V. UNITED STATES, 322 U.S. 665.  THIS MAY RESULT
IN "LOSS OF BOTH PROPERTY AND LIFE; OR OF ALL THAT MAKES LIFE WORTH
LIVING."  NG FUNG HO V. WHITE, 259 U.S. 276, 284.  IN SUCH A SITUATION
WHERE THERE IS DOUBT IT MUST BE RESOLVED IN THE CITIZEN'S FAVOR. 
ESPECIALLY MUST WE BE SENSITIVE TO THE CITIZEN'S RIGHTS WHERE THE
PROCEEDING IS NONJUDICIAL BECAUSE OF "THE DIFFERENCE IN SECURITY OF
JUDICIAL OVER ADMINISTRATIVE ACTION  ...  ."  NG FUNG HO V. WHITE,
SUPRA, AT 285. 

THESE CONSIDERATIONS OF POLICY, WHICH DETERMINED THE COURT'S
DECISIONS IN REQUIRING JUDICIAL AS AGAINST ADMINISTRATIVE ADJUDICATION
OF THE ISSUE OF CITIZENSHIP IN A DEPORTATION PROCEEDING AND THOSE
DEFINING THE HEAVY CRITERION OF PROOF TO BE EXACTED BY THE LOWER COURTS
FROM THE GOVERNMENT BEFORE DECREEING DENATURALIZATION, ARE IMPORTANT
GUIDES IN REACHING DECISION HERE.  THEY GIVE COHERENCE TO LAW AND ARE
FAIRLY TO BE ASSUMED AS CONGRESSIONAL PRESUPPOSITIONS, UNLESS BY
APPROPRIATE EXPLICITNESS THE LAWMAKERS MAKE THEM INAPPLICABLE.  CF.
BELL V. UNITED STATES, 349 U.S. 81, 83.  IT DOES NOT BESPEAK
DEPRECATION OF OFFICIAL ZEAL, NOR DOES IT BRING INTO QUESTION
DISINTERESTEDNESS, TO CONCLUDE THAT COMPULSORY EX PARTE ADMINISTRATIVE
EXAMINATIONS, UNTRAMMELLED BY THE SAFEGUARDS OF A PUBLIC ADVERSARY
JUDICIAL PROCEEDING, AFFORD TOO READY OPPORTUNITIES FOR UNHAPPY
CONSEQUENCES TO PROSPECTIVE DEFENDANTS IN DENATURALIZATION SUITS. 

THESE GENERAL CONSIDERATIONS FIND SPECIFIC REINFORCEMENT IN THE
LANGUAGE OF OTHER PROVISIONS OF THE ACT, WHEREIN THE PERSON WHO IS THE
SUBJECT OF AN INVESTIGATION IS REFERRED TO WITH PARTICULARITY.  THE
MOST STRIKING EXAMPLE OF THIS IS TO BE FOUND IN SEC. 335 AND ITS
LEGISLATIVE HISTORY WHICH PERTAINS TO THE INVESTIGATION OF AN ALIEN WHO
PETITIONS FOR NATURALIZATION.  SECTION 335(B) PROVIDES:  "THE ATTORNEY
GENERAL SHALL DESIGNATE EMPLOYEES OF THE SERVICE TO CONDUCT PRELIMINARY
EXAMINATIONS UPON PETITIONS FOR NATURALIZATION  ...  .  FOR SUCH
PURPOSES ANY SUCH EMPLOYEE SO DESIGNATED IS HEREBY AUTHORIZED TO TAKE
TESTIMONY CONCERNING ANY MATTER TOUCHING OR IN ANY WAY AFFECTING THE
ADMISSIBILITY OF ANY PETITIONER FOR NATURALIZATION, TO ADMINISTER
OATHS, INCLUDING THE OATH OF THE PETITIONER FOR NATURALIZATION AND THE
OATHS OF PETITIONER'S WITNESSES TO THE PETITION FOR NATURALIZATION, AND
TO REQUIRE BY SUBPENA THE ATTENDANCE AND TESTIMONY OF WITNESSES,
INCLUDING PETITIONER  ...  ."  CONTRAST THIS WITH SEC. 335(B)'S
PREDECESSOR, SEC. 333(A) OF THE NATIONALITY ACT OF 1940, 54 STAT. 1137,
1156:  "  ...  ANY SUCH DESIGNATED EXAMINER IS HEREBY AUTHORIZED TO
TAKE TESTIMONY CONCERNING ANY MATTER TOUCHING OR IN ANY WAY AFFECTING
THE ADMISSIBILITY OF ANY PETITIONER FOR NATURALIZATION, TO SUBPENA
WITNESSES, AND TO ADMINISTER OATHS, INCLUDING THE OATH OF THE
PETITIONER TO THE PETITION FOR NATURALIZATION AND THE OATH OF
PETITIONER'S WITNESSES."  (FN8)  OTHER EXAMPLES OF CONGRESS' CAREFUL
DIFFERENTIATION BETWEEN A WITNESS WHO IS NOT THE SUBJECT OF AN
INVESTIGATION AND THE PERSON WHO IS, MAY BE FOUND IN SECS. 236(A),
(FN9) 242(B) (FN10) AND 336(D) (FN11) OF THE 1952 ACT. 

ALL THESE CONSIDERATIONS CONVERGE TO THE CONCLUSION THAT CONGRESS HAS
NOT PROVIDED WITH SUFFICIENT CLARITY THAT THE SUBPOENA POWER GRANTED BY
SEC. 235(A) EXTENDS OVER PERSONS WHO ARE THE SUBJECT OF
DENATURALIZATION INVESTIGATIONS; THEREFORE CONGRESS IS NOT TO BE DEEMED
TO HAVE DONE SO IMPLIEDLY.  SINCE THIS IS SO, WE ARE NOT CALLED UPON TO
CONSIDER WHETHER CONGRESS MAY EMPOWER AN IMMIGRATION OFFICER TO SECURE
EVIDENCE, UNDER THE AUTHORITY OF A SUBPOENA, FROM A CITIZEN WHO IS
HIMSELF THE SUBJECT OF AN INVESTIGATION DIRECTED TOWARD HIS
DENATURALIZATION.  THE JUDGMENT IN NO. 35 IS AFFIRMED; IN NO. 47, THE
JUDGMENT IS REVERSED.  AFFIRMED AND REVERSED RESPECTIVELY.    FN1
PHYSICAL AND MENTAL EXAMINATION, OF ALIENS (INCLUDING ALIEN CREWMEN)
SEEKING ADMISSION OR READMISSION TO, OR THE PRIVILEGE OF PASSING
THROUGH THE UNITED STATES SHALL BE CONDUCTED BY IMMIGRATION OFFICERS,
EXCEPT AS OTHERWISE PROVIDED IN REGARD TO SPECIAL INQUIRY OFFICERS. 
ALL ALIENS ARRIVING AT PORTS OF THE UNITED STATES SHALL BE EXAMINED BY
ONE OR MORE IMMIGRATION OFFICERS AT THE DISCRETION OF THE ATTORNEY
GENERAL AND UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE.  IMMIGRATION
OFFICERS ARE HEREBY AUTHORIZED AND EMPOWERED TO BOARD AND SEARCH ANY
VESSEL, AIRCRAFT, RAILWAY CAR, OR OTHER CONVEYANCE, OR VEHICLE IN WHICH
THEY BELIEVE ALIENS ARE BEING BROUGHT INTO THE UNITED STATES.  THE
ATTORNEY GENERAL AND ANY IMMIGRATION OFFICER, INCLUDING SPECIAL INQUIRY
OFFICERS, SHALL HAVE POWER TO ADMINISTER OATHS AND TO TAKE AND CONSIDER
EVIDENCE OF OR FROM ANY PERSON TOUCHING THE PRIVILEGE OF ANY ALIEN OR
PERSON HE BELIEVES OR SUSPECTS TO BE AN ALIEN TO ENTER, REENTER, PASS
THROUGH, OR RESIDE IN THE UNITED STATES OR CONCERNING ANY MATTER WHICH
IS MATERIAL AND RELEVANT TO THE ENFORCEMENT OF THIS ACT AND THE
ADMINISTRATION OF THE SERVICE, AND, WHERE SUCH ACTION MAY BE NECESSARY,
TO MAKE A WRITTEN RECORD OF SUCH EVIDENCE.  ANY PERSON COMING INTO THE
UNITED STATES MAY BE REQUIRED TO STATE UNDER OATH THE PURPOSE OR
PURPOSES FOR WHICH HE COMES, THE LENGTH OF TIME HE INTENDS TO REMAIN IN
THE UNITED STATES, WHETHER OR NOT HE INTENDS TO REMAIN IN THE UNITED
STATES PERMANENTLY AND, IF AN ALIEN, WHETHER HE INTENDS TO BECOME A
CITIZEN THEREOF, AND SUCH OTHER ITEMS OF INFORMATION AS WILL AID THE
IMMIGRATION OFFICER IN DETERMINING WHETHER HE IS A NATIONAL OF THE
UNITED STATES OR AN ALIEN AND, IF THE LATTER, WHETHER HE BELONGS TO ANY
OF THE EXCLUDED CLASSES ENUMERATED IN SECTION 212.  THE ATTORNEY
GENERAL AND ANY IMMIGRATION OFFICER, INCLUDING SPECIAL INQUIRY
OFFICERS, SHALL HAVE POWER TO REQUIRE BY SUBPENA THE ATTENDANCE AND
TESTIMONY OF WITNESSES BEFORE IMMIGRATION OFFICERS AND SPECIAL INQUIRY
OFFICERS AND THE PRODUCTION OF BOOKS, PAPERS, AND DOCUMENTS RELATING TO
THE PRIVILEGE OF ANY PERSON TO ENTER, REENTER, RESIDE IN, OR PASS
THROUGH THE UNITED STATES OR CONCERNING ANY MATTER WHICH IS MATERIAL
AND RELEVANT TO THE ENFORCEMENT OF THIS ACT AND THE ADMINISTRATION OF
THE SERVICE, AND TO THAT END MAY INVOKE THE AID OF ANY COURT OF THE
UNITED STATES.  ANY UNITED STATES DISTRICT COURT WITHIN THE
JURISDICTION OF WHICH INVESTIGATIONS OR INQUIRIES ARE BEING CONDUCTED
BY AN IMMIGRATION OFFICER OR SPECIAL INQUIRY OFFICER MAY, IN THE EVENT
OF NEGLECT OR REFUSAL TO RESPOND TO A SUBPENA ISSUED UNDER THIS
SUBSECTION OR REFUSAL TO TESTIFY BEFORE AN IMMIGRATION OFFICER OR
SPECIAL INQUIRY OFFICER, ISSUE AN ORDER REQUIRING SUCH PERSONS TO
APPEAR BEFORE AN IMMIGRATION OFFICER OR SPECIAL INQUIRY OFFICER,
PRODUCE BOOKS, PAPERS, AND DOCUMENTS IF DEMANDED, AND TESTIFY, AND ANY
FAILURE TO OBEY SUCH ORDER OF THE COURT MAY BE PUNISHED BY THE COURT AS
A CONTEMPT THEREOF." 

FN2  SECTION 340(A) PROVIDES:  "IT SHALL BE THE DUTY OF THE UNITED
STATES DISTRICT ATTORNEYS FOR THE RESPECTIVE DISTRICTS, UPON AFFIDAVIT
SHOWING GOOD CAUSE THEREFOR, TO INSTITUTE PROCEEDINGS IN ANY COURT
SPECIFIED IN SUBSECTION (A) OF SECTION 310 OF THIS TITLE IN THE
JUDICIAL DISTRICT IN WHICH THE NATURALIZED CITIZEN MAY RESIDE AT THE
TIME OF BRINGING SUIT, FOR THE PURPOSE OF REVOKING AND SETTING ASIDE
THE ORDER ADMITTING SUCH PERSON TO CITIZENSHIP AND CANCELING THE
CERTIFICATE OF NATURALIZATION ON THE GROUND THAT SUCH ORDER AND
CERTIFICATE OF NATURALIZATION WERE PROCURED BY CONCEALMENT OF A
MATERIAL FACT OR BY WILLFUL MISREPRESENTATION, AND SUCH REVOCATION AND
SETTING ASIDE OF THE ORDER ADMITTING SUCH PERSON TO CITIZENSHIP AND
SUCH CANCELING OF CERTIFICATE OF NATURALIZATION SHALL BE EFFECTIVE AS
OF THE ORIGINAL DATE OF THE ORDER AND CERTIFICATE, RESPECTIVELY:
PROVIDED, THAT REFUSAL ON THE PART OF A NATURALIZED CITIZEN WITHIN A
PERIOD OF TEN YEARS FOLLOWING HIS NATURALIZATION TO TESTIFY AS A
WITNESS IN ANY PROCEEDING BEFORE A CONGRESSIONAL COMMITTEE CONCERNING
HIS SUBVERSIVE ACTIVITIES, IN A CASE WHERE SUCH PERSON HAS BEEN
CONVICTED OF CONTEMPT FOR SUCH REFUSAL, SHALL BE HELD TO CONSTITUTE A
GROUND FOR REVOCATION OF SUCH PERSON'S NATURALIZATION UNDER THIS
SUBSECTION AS HAVING BEEN PROCURED BY CONCEALMENT OF A MATERIAL FACT OR
BY WILLFUL MISREPRESENTATION.  IF THE NATURALIZED CITIZEN DOES NOT
RESIDE IN ANY JUDICIAL DISTRICT IN THE UNITED STATES AT THE TIME OF
BRINGING SUCH SUIT, THE PROCEEDINGS MAY BE INSTITUTED IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OR IN THE UNITED
STATES DISTRICT COURT IN THE JUDICIAL DISTRICT IN WHICH SUCH PERSON
LAST HAD HIS RESIDENCE." 

FN3  8 CFR SEC. 340.11 PROVIDES:  "INVESTIGATION AND REPORT. 
WHENEVER IT APPEARS THAT ANY GRANT OF NATURALIZATION MAY HAVE BEEN
PROCURED BY CONCEALMENT OF A MATERIAL FACT OR BY WILFUL
MISREPRESENTATION, THE FACTS SHALL BE REPORTED TO THE DISTRICT DIRECTOR
HAVING JURISDICTION OVER THE NATURALIZED PERSON'S LAST KNOWN PLACE OF
RESIDENCE.  IF THE DISTRICT DIRECTOR IS SATISFIED THAT A PRIMA FACIE
SHOWING HAS BEEN MADE THAT GROUNDS FOR REVOCATION EXIST, HE SHALL CAUSE
AN INVESTIGATION TO BE MADE AND REPORT THE FACTS IN WRITING TO THE
COMMISSIONER WITH A RECOMMENDATION AS TO WHETHER REVOCATION PROCEEDINGS
SHOULD BE INSTITUTED.  IF IT APPEARS THAT NATURALIZATION WAS PROCURED
IN VIOLATION OF SECTION 1425 OF TITLE 18 OF THE U.S.C.  THE FACTS IN
REGARD THERETO MAY BE PRESENTED BY THE DISTRICT DIRECTOR TO THE
APPROPRIATE UNITED STATES ATTORNEY FOR POSSIBLE CRIMINAL PROSECUTION." 

FN4  THE QUESTION WHETHER RESPONDENT WAS REQUIRED TO OBEY THE ORDER
OF THE DISTRICT COURT IRRESPECTIVE OF THAT COURT'S POWER UNDER SEC.
235(A) HAS NOT BEEN RAISED.  SEE UNITED STATES V. UNITED MINE WORKERS
OF AMERICA, 330 U.S. 258. 

FN5  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS TAKEN THE SAME
VIEW.  LANSKY ET AL. V. SAVORETTI, 220 F.2D 906. 

FN6  E.G., SEC. 215(G):  "PASSPORTS, VISAS, REENTRY PERMITS, AND
OTHER DOCUMENTS REQUIRED FOR ENTRY UNDER THIS ACT MAY BE CONSIDERED AS
PERMITS TO ENTER FOR THE PURPOSES OF THIS SECTION."  SEC. 241(A)(2):
"ANY ALIEN IN THE UNITED STATES  ...  SHALL, UPON THE ORDER OF THE
ATTORNEY GENERAL, BE DEPORTED WHO - ENTERED THE UNITED STATES WITHOUT
INSPECTION OR AT ANY TIME OR PLACE OTHER THAN AS DESIGNATED BY THE
ATTORNEY GENERAL OR IS IN THE UNITED STATES IN VIOLATION OF THIS ACT OR
IN VIOLATION OF ANY OTHER LAW OF THE UNITED STATES."  SEC. 290(A):
"THERE SHALL BE ESTABLISHED IN THE OFFICE OF THE COMMISSIONER FOR THE
USE OF THE SECURITY AND ENFORCEMENT AGENCIES OF THE GOVERNMENT OF THE
UNITED STATES, A CENTRAL INDEX, WHICH SHALL CONTAIN THE NAMES OF ALL
ALIENS HERETOFORE ADMITTED TO THE UNITED STATES, OR EXCLUDED THEREFROM,
INSOFAR AS SUCH INFORMATION IS AVAILABLE FROM THE EXISTING RECORDS OF
THE SERVICE, AND THE NAMES OF ALL ALIENS HEREAFTER ADMITTED TO THE
UNITED STATES, OR EXCLUDED THEREFROM, THE NAMES OF THEIR SPONSORS OF
RECORD, IF ANY, AND SUCH OTHER RELEVANT INFORMATION AS THE ATTORNEY
GENERAL SHALL REQUIRE AS AN AID TO THE PROPER ENFORCEMENT OF THIS
ACT." 

FN7  E.G., SEC. 284:  "NOTHING CONTAINED IN THIS TITLE SHALL BE
CONSTRUED SO AS TO LIMIT, RESTRICT, DENY, OR AFFECT THE COMING INTO OR
DEPARTURE FROM THE UNITED STATES OF AN ALIEN MEMBER OF THE ARMED FORCES
OF THE UNITED STATES WHO IS IN THE UNIFORM OF, OR WHO BEARS DOCUMENTS
IDENTIFYING HIM AS A MEMBER OF, SUCH ARMED FORCES, AND WHO IS COMING TO
OR DEPARTING FROM THE UNITED STATES UNDER OFFICIAL ORDERS OR PERMIT OF
SUCH ARMED FORCES:  PROVIDED, THAT NOTHING CONTAINED IN THIS SECTION
SHALL BE CONSTRUED TO GIVE TO OR CONFER UPON ANY SUCH ALIEN ANY OTHER
PRIVILEGES, RIGHTS, BENEFITS, EXEMPTIONS, OR IMMUNITIES UNDER THIS ACT,
WHICH ARE NOT OTHERWISE SPECIFICALLY GRANTED BY THIS ACT." 

FN8  "WHILE THE NATIONALITY ACT (SEC. 333(A) OF THE 1940 ACT)
PROVIDES FOR SUBPENA OF WITNESSES AT A PRELIMINARY NATURALIZATION
HEARING AND FOR CALLING OF WITNESSES IN ANY NATURALIZATION PROCEEDINGS
IN COURT, SPECIFIC PROVISION IS NOT MADE FOR SUBPENAING THE
PETITIONER.  THE SUBCOMMITTEE FEELS THAT THE PROPOSED BILL SHOULD
CONTAIN THE REQUIREMENT THAT THE PETITIONER BE REQUIRED TO ATTEND
HEARINGS AND IS SO RECOMMENDING."  S. REP. NO. 1515, 81ST CONG., 2D
SESS. 739. 

FN9  SECTION 236(A) PROVIDES:  "A SPECIAL INQUIRY OFFICER SHALL
CONDUCT PROCEEDINGS UNDER THIS SECTION, ADMINISTER OATHS, PRESENT AND
RECEIVE EVIDENCE, AND INTERROGATE, EXAMINE, AND CROSS-EXAMINE THE ALIEN
OR WITNESSES." 

FN10  SECTION 242(B) PROVIDES:  "A SPECIAL INQUIRY OFFICER SHALL
CONDUCT PROCEEDINGS UNDER THIS SECTION TO DETERMINE THE DEPORTABILITY
OF ANY ALIEN, AND SHALL ADMINISTER OATHS, PRESENT AND RECEIVE EVIDENCE,
INTERROGATE, EXAMINE, AND CROSS-EXAMINE THE ALIEN OR WITNESSES, AND, AS
AUTHORIZED BY THE ATTORNEY GENERAL, SHALL MAKE DETERMINATIONS,
INCLUDING ORDERS OF DEPORTATION." 

FN11  SECTION 336(D) PROVIDES:  "THE ATTORNEY GENERAL SHALL HAVE THE
RIGHT TO APPEAR BEFORE ANY COURT IN ANY NATURALIZATION PROCEEDINGS FOR
THE PURPOSE OF CROSS-EXAMINING THE PETITIONER AND THE WITNESSES
PRODUCED IN SUPPORT OF THE PETITION CONCERNING ANY MATTER TOUCHING OR
IN ANY WAY AFFECTING THE PETITIONER'S RIGHT TO ADMISSION TO
CITIZENSHIP, AND SHALL HAVE THE RIGHT TO CALL WITNESSES, INCLUDING THE
PETITIONER, PRODUCE EVIDENCE, AND BE HEARD IN OPPOSITION TO, OR IN
FAVOR OF, THE GRANTING OF ANY PETITION IN NATURALIZATION PROCEEDINGS." 

MR. JUSTICE BLACK, CONCURRING. 

THE RESPONDENT MINKER IS A NATURALIZED CITIZEN OF THE UNITED STATES. 
(FN1)  HE WAS SUBPOENAED BY AN IMMIGRATION OFFICER TO APPEAR AND GIVE
TESTIMONY AS A "WITNESS."  BUT MINKER WAS NOT TO BE A WITNESS WITHIN
THE TRADITIONAL MEANING OF THAT WORD, THAT IS, ONE WHO TESTIFIES IN A
COURT PROCEEDING OR IN A PUBLIC QUASI-JUDICIAL HEARING OF SOME KIND. 
THE IMMIGRATION OFFICER SUMMONING MINKER WAS NOT A JUDGE OR "GRAND
JURY" OF ANY KIND, NOR WAS HE AT THE TIME ACTING IN ANY QUASI-JUDICIAL
CAPACITY.  CF. IN RE OLIVER, 333 U.S. 257.  HE WAS ACTING UNDER HIS
BROAD POWER AS A LAW ENFORCEMENT OFFICER TO FOLLOW UP CLUES AND FIND
INFORMATION THAT MIGHT BE USEFUL IN LATER CIVIL OR CRIMINAL
PROSECUTIONS BROUGHT AGAINST PERSONS SUSPECTED OF VIOLATING THE
IMMIGRATION AND NATURALIZATION LAWS.  SEE, E.G., SEC. 287, IMMIGRATION
AND NATIONALITY ACT, 66 STAT. 233, 8 U.S.C. SEC. 1357; 8 CFR SECS.
287.1-287.5.  THE OBJECT IN SUMMONING MINKER WAS TO INTERROGATE HIM IN
THE IMMIGRATION OFFICER'S PRIVATE CHAMBERS TO TRY TO ELICIT INFORMATION
"RELATING TO THE POSSIBLE INSTITUTION OF PROCEEDINGS SEEKING THE
REVOCATION OF  ...  MINKER'S NATURALIZATION  ...  ."  INFORMATION SO
OBTAINED MIGHT BE USED UNDER SOME CIRCUMSTANCES IN COURT TO TAKE AWAY
MINKER'S AMERICAN CITIZENSHIP OR CONVICT HIM OF PERJURY OR SOME OTHER
CRIME.  (FN2)  THUS THE CAPACITY IN WHICH THIS IMMIGRATION OFFICER WAS
ACTING WAS PRECISELY THE SAME AS THAT OF A POLICEMAN, CONSTABLE,
SHERIFF, OR FEDERAL BUREAU OF INVESTIGATION AGENT WHO INTERROGATES A
PERSON, PERHAPS HIMSELF A SUSPECT, IN CONNECTION WITH MURDER OR SOME
OTHER CRIME.  APPARENTLY CONGRESS HAS NEVER EVEN ATTEMPTED TO VEST FBI
AGENTS WITH SUCH PRIVATE INQUISITORIAL POWER.  INDEED, THIS COURT HAS
CONSTRUED CONGRESSIONAL ENACTMENTS AS DESIGNED TO SAFEGUARD PERSONS
AGAINST COMPULSORY QUESTIONING BY LAW ENFORCEMENT OFFICERS BEHIND
CLOSED DOORS.  MCNABB V. UNITED STATES, 318 U.S. 332; UPSHAW V. UNITED
STATES, 335 U.S. 410.  AND WE HAVE FREQUENTLY SET ASIDE STATE CRIMINAL
CONVICTIONS AS A DENIAL OF DUE PROCESS OF LAW BECAUSE OF COERCIVE
QUESTIONING OF SUSPECTS BY PUBLIC PROSECUTORS AND OTHER LAW ENFORCEMENT
OFFICERS IN THEIR OFFICIAL CHAMBERS.  SEE, E.G., WATTS V. INDIANA, 338
U.S. 49; HARRIS V. SOUTH CAROLINA, 338 U.S. 68; CHAMBERS V. FLORIDA,
309 U.S. 227.  YET POWER OF THE ATTORNEY GENERAL AND IMMIGRATION
OFFICERS TO COMPEL PERSONS, INCLUDING SUSPECTS, TO APPEAR AND SUBJECT
THEMSELVES TO QUESTIONING BY LAW ENFORCEMENT OFFICERS IN THEIR PRIVATE
CHAMBERS IS PRECISELY WHAT THE DEPARTMENT OF JUSTICE CLAIMS HERE.  THIS
IS NO LESS TRUE BECAUSE A FEDERAL JUDGE MUST BE CALLED ON TO "AID" THE
IMMIGRATION OFFICER IN SUBJECTING A SUMMONED PERSON TO QUESTIONING. 
SEC. 235(A), 66 STAT. 198, 8 U.S.C. SEC. 1225(A).  FOR AFTER A COURT
ORDER, AS BEFORE, THE PERSON SUMMONED MUST GO TO AN IMMIGRATION
OFFICER'S PRIVATE CHAMBERS FOR QUESTIONING BY HIM, OUT OF WHICH MAY
COME A PROSECUTION AGAINST THE "WITNESS" FOR PERJURY OR SOME OTHER
CRIME.  A PURPOSE TO SUBJECT ALIENS, MUCH LESS CITIZENS, TO A POLICE
PRACTICE SO DANGEROUS TO INDIVIDUAL LIBERTY AS THIS SHOULD NOT BE READ
INTO AN ACT OF CONGRESS IN THE ABSENCE OF A CLEAR AND UNEQUIVOCAL
CONGRESSIONAL MANDATE.  I THINK THE ACT RELIED ON HERE BY THE
DEPARTMENT OF JUSTICE SHOULD NOT BE SO READ.  I WOULD HOLD THAT
IMMIGRATION OFFICERS ARE WHOLLY WITHOUT STATUTORY AUTHORITY TO SUMMON
PERSONS, WHETHER SUSPECTS OR NOT, TO TESTIFY IN PRIVATE AS "WITNESSES"
IN DENATURALIZATION MATTERS.  FOR THIS REASON I CONCUR IN THE COURT'S
JUDGMENT IN THIS CASE. 

THE DEPARTMENT OF JUSTICE FINDS THE SWEEPING POWER IT CLAIMS IN SEC.
235 OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163, 198,
8 U.S.C. SECS. 1101, 1225.  THAT ACT IS A COMPREHENSIVE CODIFICATION OF
LAWS RELATING TO ENTRY, EXCLUSION, DOMESTIC CONTROL, DEPORTATION AND
NATURALIZATION OF ALIENS; THE ACT ALSO PROVIDES THE CONTROLLING RULES
AND PROCEDURES FOR DENATURALIZING NATURALIZED CITIZENS.  PRIMARY
RESPONSIBILITY FOR ADMINISTRATION AND ENFORCEMENT OF THE ACT IS VESTED
IN THE ATTORNEY GENERAL, ACTING CHIEFLY THROUGH HIS SUBORDINATES IN THE
IMMIGRATION AND NATURALIZATION SERVICE.  SEC. 103, 66 STAT. 173, 8
U.S.C. SEC. 1103.    THIS COURT HAS DRAWN SHARP AND HIGHLY IMPORTANT
DISTINCTIONS BETWEEN THE CONSTITUTIONAL POWER OF CONGRESS TO BAR AND
EXCLUDE ALIENS AND CONGRESSIONAL POWER TO STRIP CITIZENS OF THEIR
CITIZENSHIP.  FORMER CASES HAVE HELD THAT CONGRESS HAS FULL POWER TO
BAR OR EXCLUDE ALIENS FROM THE COUNTRY.  SEE, E.G., UNITED STATES V. JU
TOY, 198 U.S. 253; HARISIADES V. SHAUGHNESSY, 342 U.S. 580; SHAUGHNESSY
V. UNITED STATES EX REL. MEZEI, 345 U.S. 206.  BUT CITIZENSHIP, WHETHER
ACQUIRED BY BIRTH OR BY NATURALIZATION, CANNOT BE TAKEN AWAY WITHOUT A
JUDICIAL TRIAL IN WHICH THE GOVERNMENT CARRIES A HEAVY BURDEN.  SEE,
E.G., NG FUNG HO V. WHITE, 259 U.S. 276; BAUMGARTNER V. UNITED STATES,
322 U.S. 665; GONZALES V. LANDON, 350 U.S. 920.  CONGRESS, APPARENTLY
TAKING NOTE OF THESE BASIC DISTINCTIONS, DIVIDED THE ACT INTO DIFFERENT
"TITLES" AND "CHAPTERS."  SECTION 235, ON WHICH THE GOVERNMENT RELIES
HERE, APPEARS IN CHAPTER IV OF TITLE II.  TITLE II AS A WHOLE CONTAINS
PROVISIONS RELATING TO "IMMIGRATION" AND CHAPTER IV OF THAT TITLE
CONTAINS THE "PROVISIONS RELATING TO ENTRY AND EXCLUSION."  IT IS IN
THE CONTEXT OF CHAPTER IV THAT SEC. 235 GIVES THE ATTORNEY GENERAL AND
IMMIGRATION OFFICERS, "INCLUDING SPECIAL INQUIRY OFFICERS," BROAD POWER
TO SUBPOENA AND REQUIRE TESTIMONY OF "WITNESSES" AS TO "THE PRIVILEGE
OF ANY PERSON TO ENTER, REENTER, RESIDE IN, OR PASS THROUGH THE UNITED
STATES OR CONCERNING ANY MATTER WHICH IS MATERIAL AND RELEVANT TO THE
ENFORCEMENT OF THIS ACT AND THE ADMINISTRATION OF THE SERVICE  ...  ." 
I THINK THAT CONTEXT INDICATES THAT SEC. 235 WAS DESIGNED TO APPLY ONLY
TO THE EXAMINATION OF "WITNESSES" BY IMMIGRATION OFFICERS IN RELATION
TO "ENTRY AND EXCLUSION" OF ALIENS, AND MATTERS MATERIAL AND RELEVANT
TO ENTRY AND EXCLUSION.  SUCH A READING MAKES THE SUBPOENA POWER GIVEN
FIT INTO THE CAREFULLY DEVISED PATTERN OF TITLE II, WHICH DEALS WITH
ALIENS AND IMMIGRATION, NOT WITH NATURALIZATION OR DENATURALIZATION. 
EVEN IF LIMITED TO MATTERS PERTAINING TO THE ENTRY AND EXCLUSION OF
ALIENS, COMPULSORY PRIVATE EXAMINATION OF "WITNESSES" MIGHT BE
INVALID.  THE BROAD POWERS HERE CLAIMED BY THE ATTORNEY GENERAL AND HIS
IMMIGRATION OFFICERS COULD BE MORE NEARLY DEFENDED, IF THEY CAN BE
DEFENDED AT ALL, BY CONFINING USE OF THE POWERS TO THE FIELD OF
TREATMENT OF ALIENS, WHERE THIS COURT HAS SAID CONGRESS HAS MOST
POWER. 

LIMITATION OF THE SUBPOENA AND INVESTIGATORY POWERS IN SEC. 235 TO
MATTERS RELATING TO ENTRY, CONTROL AND EXCLUSION OF ALIENS IS
STRENGTHENED BY CONSIDERATION OF TITLE III OF THE ACT WHICH COVERS
"NATIONALITY AND NATURALIZATION."  THAT TITLE PROVIDES PROCEDURES FOR
INVESTIGATION AND TRIAL OF NATURALIZATION AND DENATURALIZATION CASES,
WHOLLY ADEQUATE IN THEMSELVES WITHOUT RELIANCE ON THE SUBPOENA AND
EXAMINATION POWERS OF IMMIGRATION OFFICERS UNDER SEC. 235.  THE
NATURALIZATION AND DENATURALIZATION PROCEDURES OF TITLE III ARE NOT
MERELY ADEQUATE, BUT ARE IN A MEASURE INCONSISTENT WITH SEC. 235
PROCEDURE.  LOOKING FIRST AT NATURALIZATION PROCEDURE UNDER SECS. 332
336, 66 STAT. 252-258, 8 U.S.C. SECS. 1443-1447, IT APPEARS THAT
CONGRESS WITH METICULOUS CARE PROVIDED A PROCEDURE FOR INVESTIGATION OF
NATURALIZATION CASES.  THESE SECTIONS PROVIDE THEIR OWN WAY FOR
SUMMONING AND EXAMINING WITNESSES.  WITHOUT MENTIONING IMMIGRATION
OFFICERS, THE SECTIONS PROVIDE FOR INVESTIGATIONS, ETC., TO BE CARRIED
ON BY ANY EMPLOYEE OF THE SERVICE OR OF THE UNITED STATES DESIGNATED BY
THE ATTORNEY GENERAL.  AN EXAMINATION UNDER THIS TITLE IS CARRIED ON BY
A PUBLIC HEARING AT WHICH AN APPLICANT FOR CITIZENSHIP CAN PRODUCE HIS
OWN WITNESSES.  (FN3)  THE DESIGNATED HEARING EXAMINER IS GIVEN THE
POWER TO SUBPOENA WITNESSES BY SEC. 335(B), 66 STAT. 255, 8 U.S.C. SEC.
1446(B), AND THE NATURALIZATION JUDGE IS AUTHORIZED TO COMPEL
COMPLIANCE WITH THE SUBPOENA.  AFTER THE HEARING THE EXAMINER REPORTS
HIS FINDINGS AND RECOMMENDATIONS TO THE ATTORNEY GENERAL.  THE VIEWS OF
THE DESIGNATED EXAMINER, AND OF THE ATTORNEY GENERAL IF IN CONFLICT,
ARE THEN REPORTED TO THE NATURALIZATION COURT FOR ITS CONSIDERATION. 
ALL OF THIS PERSUADES ME THAT RELIANCE ON THE SUBPOENA AND PRIVATE
EXAMINATION POWERS OF IMMIGRATION OFFICERS UNDER SEC. 235 WOULD
ACTUALLY CONFLICT WITH THE PUBLIC HEARING PROCEDURE CONGRESS AND THE
ATTORNEY GENERAL HAVE PROVIDED FOR NATURALIZATION CASES IN SECS. 332
335, 66 STAT. 252-257, 8 U.S.C. SECS. 1443-1446, AND 8 CFR SECS. 335.11
335.13. 

IT SEEMS EVEN CLEARER THAT IMMIGRATION OFFICERS' POWERS UNDER SEC.
235 ARE NOT APPLICABLE IN DENATURALIZATION CASES.  SECTION 340 OF TITLE
III OF THE ACT, 66 STAT. 260, 8 U.S.C. SEC. 1451, PROVIDES FOR
REVOCATION OF NATURALIZATION.  RESPONSIBILITY FOR INITIATING SUCH CASES
IS PLACED ON DISTRICT ATTORNEYS "UPON AFFIDAVIT SHOWING GOOD CAUSE
THEREFORE  ...  ."  MANY OF THE GROUNDS FOR DENATURALIZATION ARE ALSO
GROUNDS FOR FELONY PROSECUTIONS.  UNDER THESE CIRCUMSTANCES IT IS NOT
SURPRISING THAT CONGRESS EXPRESSLY PLACED RESPONSIBILITY FOR
INSTITUTING DENATURALIZATION PROCEEDINGS ON DISTRICT ATTORNEYS, LEAVING
THEM TO SUMMON PERSONS TO APPEAR AS WITNESSES IN THE TRADITIONAL MANNER
BEFORE GRAND JURIES OR COURTS.  IT WOULD HAVE BEEN SURPRISING HAD
CONGRESS ATTEMPTED TO AUTHORIZE THE NATION'S CHIEF PROSECUTING OFFICER
AND HIS SUBORDINATES TO COMPEL A CITIZEN TO APPEAR IN GOVERNMENT
PRIVATE OFFICES TO ANSWER QUESTIONS IN SECRET ABOUT THAT CITIZEN'S
CONDUCT, ASSOCIATIONS AND BELIEFS.  SOME COUNTRIES GIVE SUCH POWERS TO
THEIR OFFICIALS.  IT IS TO BE HOPED THAT THIS COUNTRY NEVER WILL. 

FN1  MINKER IS RESPONDENT IN NO. 35.  HE AND THE PETITIONERS IN NO.
47, SALVATORE AND JOSEPH FALCONE, RAISE THE SAME QUESTIONS, AND WHAT I
SAY ABOUT MINKER'S CASE APPLIES ALSO TO THAT OF THE FALCONES. 

FN2  SEE SEC. 348, 66 STAT. 267, 8 U.S.C. SEC. 1459; 18 U.S.C. SEC.
1621.  SEE ALSO GONZALES V. LANDON, 350 U.S. 920, REVERSING 215 F.2D
955.  BUT SEE BOYD V. UNITED STATES, 116 U.S. 616; MAJORITY AND
DISSENTING OPINIONS IN FELDMAN V. UNITED STATES, 322 U.S. 487; ADAMS V.
MARYLAND, 347 U.S. 179. 

FN3  THE ATTORNEY GENERAL'S REGULATIONS FOR THE CONDUCT OF THESE
EXAMINATIONS, 8 CFR SECS. 335.11-335.13, ALSO PROVIDE THAT THE
PETITIONER FOR NATURALIZATION MAY BE REPRESENTED BY COUNSEL AND THAT
THE PETITIONER MAY CROSS-EXAMINE GOVERNMENT WITNESSES.  IF PETITIONER
IS NOT REPRESENTED BY COUNSEL, THE HEARING EXAMINER MUST ASSIST HIM IN
INTRODUCING HIS EVIDENCE.  FURTHERMORE THE DECISION OF THE EXAMINER MAY
NOT BE BASED ON EVIDENCE WHICH IS NOT IN THE RECORD OR WHICH WOULD BE
INADMISSIBLE IN JUDICIAL PROCEEDINGS.  THUS THE REGULATIONS EMPHASIZE
THE DIFFERENCE BETWEEN A SUBPOENA TO TESTIFY BEFORE A SEC. 335
NATURALIZATION HEARING OFFICER AND A SUBPOENA TO TESTIFY BEFORE A SEC.
235 IMMIGRATION OFFICER SEEKING TO OBTAIN EVIDENCE FOR CRIMINAL
PROSECUTION OR DEPORTATION.  AND THEY SHOW THAT NATURALIZATION
PROCEDURES ARE COMPLETELY INDEPENDENT FROM ENTRY AND EXCLUSION
PROCEDURES.  CF. SECS. 235(C), 236(A), 292, 66 STAT. 199, 200, 235, 8
U.S.C. SECS. 1225(C), 1226(A), 1362; 8 CFR SECS. 235.15, 236.11
236.16. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I AGREE WITH THE RESULT REACHED BY THE COURT, I DO NOT THINK
THIS CASE IS COMPARABLE TO THOSE CONTROVERSIES THAT FREQUENTLY RAGE
OVER THE SCOPE OF THE INVESTIGATIVE POWER IN SUPPORT OF ADMINISTRATIVE
ACTION.  CF. CUDAHY PACKING CO. V. HOLLAND, 315 U.S. 357, WITH UNITED
STATES V. MORTON SALT CO., 338 U.S. 632.  CONGRESS HAS PROVIDED A
SPECIAL JUDICIAL PROCEDURE WHICH MUST BE FOLLOWED, IF A CITIZEN IS
DENATURALIZED.  THAT PROCEDURE IS CONTAINED IN SEC. 340 OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952.  66 STAT. 163, 8 U.S.C. SEC.
1451.  IT PROVIDES FOR CANCELING A CERTIFICATE OF NATURALIZATION ON THE
GROUND THAT IT WAS PROCURED "BY CONCEALMENT OF A MATERIAL FACT OR BY
WILLFUL MISREPRESENTATION."  SEC. 340(A).  SUIT MAY BE BROUGHT BY THE
UNITED STATES ATTORNEY IN THE DISTRICT COURT "UPON AFFIDAVIT SHOWING
GOOD CAUSE."  ID.  THE CITIZEN WHOSE CITIZENSHIP IS CHALLENGED HAS 60
DAYS "IN WHICH TO MAKE ANSWER TO THE PETITION OF THE UNITED STATES." 
SEC. 340(B).   THERE IS NO PRETRIAL ADMINISTRATIVE PROCEDURE PROVIDED
IN THE SECTION GOVERNING DENATURALIZATION.  ONE CAN SEARCH SEC. 340 IN
VAIN FOR ANY SUGGESTION THAT THE JUDICIAL PROCEDURE IS SUPPLEMENTED BY
A PRETRIAL PROCEDURE.  SO TO HOLD WOULD MAKE THE 60-DAY PERIOD FOR
ANSWER "EMPTY WORDS," AS JUDGE FOLEY RULED IN APPLICATION OF BARNES,
116 F. SUPP. 464, 469.  AS JUDGE HASTIE, WRITING FOR THE COURT BELOW IN
THE MINKER CASE, SAID, THE ADMINISTRATIVE PRETRIAL PROCEDURE IS NOT
CONSISTENT WITH THE SAFEGUARDS WHICH CONGRESS HAS PROVIDED IN THE
JUDICIAL PROCEEDINGS.  217 F.2D 350, 352.  I AGREE WITH THAT VIEW AND
WOULD, THEREFORE, READ SEC. 235(A) TO EXCLUDE WITNESSES WHO ARE
POTENTIAL DEFENDANTS IN SEC. 340 CASES. 

THERE IS ANOTHER REASON FOR READING THE SECTION NARROWLY.  WHEN WE
DEAL WITH CITIZENSHIP WE TREAD ON SENSITIVE GROUND.  THE CITIZENSHIP OF
A NATURALIZED PERSON HAS THE SAME DIGNITY AND STATUS AS THE CITIZENSHIP
OF THOSE OF US BORN HERE, SAVE ONLY FOR ELIGIBILITY TO THE PRESIDENCY. 
HE IS A MEMBER OF A COMMUNITY INCLUDED WITHIN THE PROTECTION OF ALL THE
GUARANTEES OF THE CONSTITUTION.  THOSE SAFEGUARDS WOULD BE IMPERILED IF
PRIOR TO THE INSTITUTION OF THE PROCEEDINGS THE CITIZEN COULD BE
COMPELLED TO BE A WITNESS AGAINST HIMSELF AND FURNISH OUT OF HIS OWN
MOUTH THE EVIDENCE USED TO DENATURALIZE HIM.  I WOULD REQUIRE THE
GOVERNMENT TO PROCEED WITH METICULOUS REGARD FOR THE BASIC NOTIONS OF
DUE PROCESS WHICH PROTECT EVERY VITAL RIGHT OF THE AMERICAN CITIZEN. 
..END :
























BERNHARDT V. POLYGRAPHIC COMPANY OF AMERICA, INC. 350 U.S. 198 


NO. 49.  ARGUED DECEMBER 5, 1955 - DECIDED JANUARY 16, 1956 - 218 F.2D
948, REVERSED AND REMANDED. 


PETITIONER'S ACTION AGAINST RESPONDENT IN A VERMONT STATE COURT, FOR
DAMAGES FOR THE DISCHARGE OF PETITIONER UNDER AN EMPLOYMENT CONTRACT,
WAS REMOVED TO THE FEDERAL DISTRICT COURT ON GROUNDS OF DIVERSITY OF
CITIZENSHIP.  THE CONTRACT HAD BEEN MADE IN NEW YORK, WHERE BOTH
PARTIES RESIDED AT THE TIME, AND PROVIDED THAT THE PARTIES WOULD SUBMIT
ANY DISPUTE TO ARBITRATION UNDER NEW YORK LAW; BUT PETITIONER HAD LATER
BECOME A RESIDENT OF VERMONT, WHERE HE WAS TO PERFORM HIS DUTIES. 
RESPONDENT'S MOTION FOR A STAY OF THE PROCEEDINGS SO THAT THE
CONTROVERSY COULD GO TO ARBITRATION IN NEW YORK WAS DENIED BY THE
DISTRICT COURT, WHICH RULED THAT THE ARBITRATION PROVISION OF THE
CONTRACT WAS GOVERNED BY VERMONT LAW AND THAT, UNDER VERMONT LAW, THE
AGREEMENT TO ARBITRATE WAS REVOCABLE ANY TIME BEFORE AN AWARD WAS
ACTUALLY MADE.  THE COURT OF APPEALS REVERSED.  HELD:  THE JUDGMENT OF
THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT.  PP. 199-205. 

1.  THE PROVISION OF SEC. 3 OF THE UNITED STATES ARBITRATION ACT FOR
STAY OF THE TRIAL OF AN ACTION UNTIL ARBITRATION HAS BEEN HAD DOES NOT
APPLY TO ALL ARBITRATION AGREEMENTS BUT ONLY TO THOSE COVERED BY SECS.
1 AND 2 OF THE ACT (THOSE RELATING TO MARITIME TRANSACTIONS AND THOSE
INVOLVING INTERSTATE OR FOREIGN COMMERCE), AND THERE IS NO SHOWING THAT
THE CONTRACT HERE INVOLVED IS IN EITHER OT THOSE CLASSES.  PP. 200
202. 

2.  THE DIFFERENCES BETWEEN ARBITRATION AND JUDICIAL DETERMINATION OF
A CONTROVERSY SUBSTANTIALLY AFFECT THE CAUSE OF ACTION ARISING UNDER
STATE LAW AND MAKE THE DOCTRINE OF ERIE R. CO. V. TOMPKINS, 304 U.S.
64, APPLICABLE.  PP. 202-204. 

3.  IF IN THIS CASE ARBITRATION COULD NOT BE COMPELLED IN THE VERMONT
STATE COURTS, IT SHOULD NOT BE COMPELLED IN THE FEDERAL DISTRICT
COURT.  PP. 204-205. 

4.  IN THE CIRCUMSTANCES OF THIS CASE, THERE IS NO REASON TO REMAND
THE CASE TO THE COURT OF APPEALS TO PASS ON THE QUESTION OF LOCAL LAW. 
P. 205. 

5.  ON REMAND OF THE CAUSE TO THE DISTRICT COURT, THERE WILL BE OPEN
FOR CONSIDERATION THE QUESTION WHETHER NEW YORK ARBITRATION LAW SHOULD
BE APPLIED TO THE ENFORCEMENT OF THE CONTRACT - A QUESTION OF CONFLICT
OF LAWS GOVERNED BY VERMONT LAW AND ON WHICH IT IS NOT CLEAR THAT THE
DISTRICT COURT RULED.  P. 205. 

BERNHARDT V. POLYGRAPHIC COMPANY OF AMERICA, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT, REMOVED FROM A VERMONT COURT TO THE DISTRICT COURT ON
GROUNDS OF DIVERSITY OF CITIZENSHIP, WAS BROUGHT FOR DAMAGES FOR THE
DISCHARGE OF PETITIONER UNDER AN EMPLOYMENT CONTRACT.  AT THE TIME THE
CONTRACT WAS MADE PETITIONER WAS A RESIDENT OF NEW YORK.  RESPONDENT IS
A NEW YORK CORPORATION.  THE CONTRACT WAS MADE IN NEW YORK.  PETITIONER
LATER BECAME A RESIDENT OF VERMONT, WHERE HE WAS TO PERFORM HIS DUTIES
UNDER THE CONTRACT, AND ASSERTS HIS RIGHTS THERE. 

THE CONTRACT CONTAINS A PROVISION THAT IN CASE OF ANY DISPUTE THE
PARTIES WILL SUBMIT THE MATTER TO ARBITRATION UNDER NEW YORK LAW BY THE
AMERICAN ARBITRATION ASSOCIATION, WHOSE DETERMINATION "SHALL BE FINAL
AND ABSOLUTE."  AFTER THE CASE HAD BEEN REMOVED TO THE DISTRICT COURT,
RESPONDENT MOVED FOR A STAY OF THE PROCEEDINGS SO THAT THE CONTROVERSY
COULD GO TO ARBITRATION IN NEW YORK.  THE MOTION ALLEGED THAT THE LAW
OF NEW YORK GOVERNS THE QUESTION WHETHER THE ARBITRATION PROVISION OF
THE CONTRACT IS BINDING. 

THE DISTRICT COURT RULED THAT UNDER ERIE R. CO. V. TOMPKINS, 304 U.S.
64, THE ARBITRATION PROVISION OF THE CONTRACT WAS GOVERNED BY VERMONT
LAW AND THAT THE LAW OF VERMONT MAKES REVOCABLE AN AGREEMENT TO
ARBITRATE AT ANY TIME BEFORE AN AWARD IS ACTUALLY MADE.  THE DISTRICT
COURT THEREFORE DENIED THE STAY, 122 F. SUPP. 733.  THE COURT OF
APPEALS REVERSED, 218 F.2D 948.  THE CASE IS HERE ON A PETITION FOR
CERTIORARI WHICH WE GRANTED, 349 U.S. 943, BECAUSE OF THE DOUBTFUL
APPLICATION BY THE COURT OF APPEALS OF ERIE R. CO. V. TOMPKINS, SUPRA. 

A QUESTION UNDER THE UNITED STATES ARBITRATION ACT, 43 STAT. 883, AS
AMENDED, 61 STAT. 669, 9 U.S.C. SECS. 1-3, LIES AT THE THRESHOLD OF THE
CASE.  SECTION 2 OF THAT ACT MAKES "VALID, IRREVOCABLE, AND
ENFORCEABLE" PROVISIONS FOR ARBITRATION IN CERTAIN CLASSES OF
CONTRACTS; (FN1) AND SEC. 3 PROVIDES FOR A STAY OF ACTIONS IN THE
FEDERAL COURTS OF ISSUES REFERABLE TO ARBITRATION UNDER THOSE
CONTRACTS.  (FN2)  SECTION 2 MAKES "VALID, IRREVOCABLE, AND
ENFORCEABLE" ONLY TWO TYPES OF CONTRACTS:  THOSE RELATING TO A MARITIME
TRANSACTION AND THOSE INVOLVING COMMERCE.  NO MARITIME TRANSACTION IS
INVOLVED HERE.  NOR DOES THIS CONTRACT EVIDENCE "A TRANSACTION
INVOLVING COMMERCE" WITHIN THE MEANING OF SEC. 2 OF THE ACT.  THERE IS
NO SHOWING THAT PETITIONER WHILE PERFORMING HIS DUTIES UNDER THE
EMPLOYMENT CONTRACT WAS WORKING "IN" COMMERCE, WAS PRODUCING GOODS FOR
COMMERCE, OR WAS ENGAGING IN ACTIVITY THAT AFFECTED COMMERCE, WITHIN
THE MEANING OF OUR DECISIONS.  (FN3) 

THE COURT OF APPEALS WENT ON TO HOLD THAT IN ANY EVENT SEC. 3 OF THE
ACT STANDS ON ITS OWN FOOTING.  IT CONCLUDED THAT WHILE SEC. 2 MAKES
ENFORCEABLE ARBITRATION AGREEMENTS IN MARITIME TRANSACTIONS AND IN
TRANSACTIONS INVOLVING COMMERCE, SEC. 3 COVERS ALL ARBITRATION
AGREEMENTS EVEN THOUGH THEY DO NOT INVOLVE MARITIME TRANSACTIONS OR
TRANSACTIONS IN COMMERCE.  WE DISAGREE WITH THAT READING OF THE ACT. 
DOES NOT REPEAT THE WORDS "MARITIME TRANSACTION" OR "TRANSACTION
INVOLVING COMMERCE," USED IN SECS. 1 AND 2.  BUT SECS. 1 AND 2 DEFINE
THE FIELD IN WHICH CONGRESS WAS LEGISLATING.  SINCE SEC. 3 IS A PART OF
THE REGULATORY SCHEME, WE CAN ONLY ASSUME THAT THE "AGREEMENT IN
WRITING" FOR ARBITRATION REFERRED TO IN SEC. 3 IS THE KIND OF AGREEMENT
WHICH SECS. 1 AND 2 HAVE BROUGHT UNDER FEDERAL REGULATION.  THERE IS NO
INTIMATION OR SUGGESTION IN THE COMMITTEE REPORTS THAT SECS. 1 AND 2
COVER A NARROWER FIELD THAN SEC. 3.  ON THE CONTRARY, S. REP.  NO. 536,
68TH CONG., 1ST SESS., P. 2, STATES THAT SEC. 1 DEFINES THE CONTRACTS
TO WHICH "THE BILL WILL BE APPLICABLE."  AND H.R. REP. NO. 96, 68TH
CONG., 1ST SESS., P. 1, STATES THAT ONE FOUNDATION OF THE NEW
REGULATING MEASURE IS "THE FEDERAL CONTROL OVER INTERSTATE COMMERCE AND
OVER ADMIRALTY."  IF RESPONDENT'S CONTENTION IS CORRECT, A
CONSTITUTIONAL QUESTION MIGHT BE PRESENTED.  ERIE R. CO. V. TOMPKINS
INDICATED THAT CONGRESS DOES NOT HAVE THE CONSTITUTIONAL AUTHORITY TO
MAKE THE LAW THAT IS APPLICABLE TO CONTROVERSIES IN DIVERSITY OF
CITIZENSHIP CASES.  SHANFEROKE COAL & SUPPLY CORP. V. WESTCHESTER
SERVICE CORP., 293 U.S. 449, APPLIED THE FEDERAL ACT IN A DIVERSITY
CASE.  BUT THAT DECISION ANTEDATED ERIE R. CO. V. TOMPKINS; AND THE
COURT DID NOT CONSIDER THE LARGER QUESTION PRESENTED HERE - THAT IS,
WHETHER ARBITRATION TOUCHED ON SUBSTANTIVE RIGHTS, WHICH ERIE R. CO. V.
TOMPKINS HELD WERE GOVERNED BY LOCAL LAW, OR WAS A MERE FORM OF
PROCEDURE WITHIN THE POWER OF THE FEDERAL COURTS OR CONGRESS TO
PRESCRIBE.  OUR VIEW, AS WILL BE DEVELOPED, IS THAT SEC. 3, SO READ,
WOULD INVADE THE LOCAL LAW FIELD.  WE THEREFORE READ SEC. 3 NARROWLY TO
AVOID THAT ISSUE.  FEDERAL TRADE COMMISSION V. AMERICAN TOBACCO CO.,
264 U.S. 298, 307.  WE CONCLUDE THAT THE STAY PROVIDED IN SEC. 3
REACHES ONLY THOSE CONTRACTS COVERED BY SECS. 1 AND 2. 

THE QUESTION REMAINS WHETHER, APART FROM THE FEDERAL ACT, A PROVISION
OF A CONTRACT PROVIDING FOR ARBITRATION IS ENFORCEABLE IN A DIVERSITY
CASE. 

THE COURT OF APPEALS, IN DISAGREEING WITH THE DISTRICT COURT AS TO
THE EFFECT OF AN ARBITRATION AGREEMENT UNDER ERIE R. CO. V. TOMPKINS,
FOLLOWED ITS EARLIER DECISION OF MURRAY OIL PRODUCTS CO. V. MITSUI &
CO., 146 F.2D 381, 383, WHICH HELD THAT, "ARBITRATION IS MERELY A FORM
OF TRIAL, TO BE ADOPTED IN THE ACTION ITSELF, IN PLACE OF THE TRIAL AT
COMMON LAW:  IT IS LIKE A REFERENCE TO A MASTER, OR AN 'ADVISORY TRIAL'
UNDER FEDERAL RULES OF CIVIL PROCEDURE  ...  ." 

WE DISAGREE WITH THAT CONCLUSION.  WE DEAL HERE WITH A RIGHT TO
RECOVER THAT OWES ITS EXISTENCE TO ONE OF THE STATES, NOT TO THE UNITED
STATES.  THE FEDERAL COURT ENFORCES THE STATE-CREATED RIGHT BY RULES OF
PROCEDURE WHICH IT HAS ACQUIRED FROM THE FEDERAL GOVERNMENT AND WHICH
THEREFORE ARE NOT IDENTICAL WITH THOSE OF THE STATE COURTS.  YET, IN
SPITE OF THAT DIFFERENCE IN PROCEDURE, THE FEDERAL COURT ENFORCING A
STATE-CREATED RIGHT IN A DIVERSITY CASE IS, AS WE SAID IN GUARANTY
TRUST CO. V. YORK, 326 U.S. 99, 108, IN SUBSTANCE "ONLY ANOTHER COURT
OF THE STATE."  THE FEDERAL COURT THEREFORE MAY NOT "SUBSTANTIALLY
AFFECT THE ENFORCEMENT OF THE RIGHT AS GIVEN BY THE STATE."  ID., 109. 
IF THE FEDERAL COURT ALLOWS ARBITRATION WHERE THE STATE COURT WOULD
DISALLOW IT, THE OUTCOME OF LITIGATION MIGHT DEPEND ON THE COURTHOUSE
WHERE SUIT IS BROUGHT.  FOR THE REMEDY BY ARBITRATION, WHATEVER ITS
MERITS OR SHORTCOMINGS, SUBSTANTIALLY AFFECTS THE CAUSE OF ACTION
CREATED BY THE STATE.  THE NATURE OF THE TRIBUNAL WHERE SUITS ARE TRIED
IS AN IMPORTANT PART OF THE PARCEL OF RIGHTS BEHIND A CAUSE OF ACTION. 
THE CHANGE FROM A COURT OF LAW TO AN ARBITRATION PANEL MAY MAKE A
RADICAL DIFFERENCE IN ULTIMATE RESULT.  ARBITRATION CARRIES NO RIGHT TO
TRIAL BY JURY THAT IS GUARANTEED BOTH BY THE SEVENTH AMENDMENT AND BY
CH. 1, ART. 12TH, OF THE VERMONT CONSTITUTION.  ARBITRATORS DO NOT HAVE
THE BENEFIT OF JUDICIAL INSTRUCTION ON THE LAW; THEY NEED NOT GIVE
THEIR REASONS FOR THEIR RESULTS; THE RECORD OF THEIR PROCEEDINGS IS NOT
AS COMPLETE AS IT IS IN A COURT TRIAL; AND JUDICIAL REVIEW OF AN AWARD
IS MORE LIMITED THAN JUDICIAL REVIEW OF A TRIAL - ALL AS DISCUSSED IN
WILKO V. SWAN, 346 U.S. 427, 435-438.  (FN4)  WE SAID IN THE YORK CASE
THAT "THE NUB OF THE POLICY THAT UNDERLIES ERIE R. CO. V. TOMPKINS IS
THAT FOR THE SAME TRANSACTION THE ACCIDENT OF A SUIT BY A NON-RESIDENT
LITIGANT IN A FEDERAL COURT INSTEAD OF IN A STATE COURT A BLOCK AWAY
SHOULD NOT LEAD TO A SUBSTANTIALLY DIFFERENT RESULT."  326 U.S., AT
109.  THERE WOULD IN OUR JUDGMENT BE A RESULTANT DISCRIMINATION IF THE
PARTIES SUING ON A VERMONT CAUSE OF ACTION IN THE FEDERAL COURT WERE
REMITTED TO ARBITRATION, WHILE THOSE SUING IN THE VERMONT COURT COULD
NOT BE. 

THE DISTRICT COURT FOUND THAT IF THE PARTIES WERE IN A VERMONT COURT,
THE AGREEMENT TO SUBMIT TO ARBITRATION WOULD NOT BE BINDING AND COULD
BE REVOKED AT ANY TIME BEFORE AN AWARD WAS MADE.  HE GAVE AS HIS
AUTHORITY MEAD'S ADMX.  V. OWEN, 83 VT. 132, 135, 74 A. 1058, 1059, AND
SARTWELL V. SOWLES, 72 VT. 270, 277, 48 A. 11, 14, DECIDED BY THE
SUPREME COURT OF VERMONT.  IN THE OWEN CASE THE COURT, IN SPEAKING OF
AN AGREEMENT TO ARBITRATE, HELD THAT "  ...  EITHER PARTY MAY REVOKE
THE SUBMISSION AT ANY TIME BEFORE THE PUBLICATION OF AN AWARD."  83
VT., AT 135, 74 A., AT 1059.  THAT CASE WAS DECIDED IN 1910.  BUT IT
WAS AGREED ON ORAL ARGUMENT THAT THERE IS NO LATER AUTHORITY FROM THE
VERMONT COURTS, THAT NO FRACTURE IN THE RULES ANNOUNCED IN THOSE CASES
HAS APPEARED IN SUBSEQUENT RULINGS OR DICTA, AND THAT NO LEGISLATIVE
MOVEMENT IS UNDER WAY IN VERMONT TO CHANGE THE RESULT OF THOSE CASES. 
SINCE THE FEDERAL JUDGE MAKING THOSE FINDINGS IS FROM THE VERMONT BAR,
WE GIVE SPECIAL WEIGHT TO HIS STATEMENT OF WHAT THE VERMONT LAW IS.
SEE MACGREGOR V. STATE MUTUAL CO., 315 U.S. 280; HILLSBOROUGH V.
CROMWELL, 326 U.S. 620; STEELE V. GENERAL MILLS, 329 U.S. 433, 439.  WE
AGREE WITH HIM THAT IF ARBITRATION COULD NOT BE COMPELLED IN THE
VERMONT COURTS, IT SHOULD NOT BE COMPELLED IN THE FEDERAL DISTRICT
COURT.  WERE THE QUESTION IN DOUBT OR DESERVING FURTHER CANVASS, WE
WOULD OF COURSE REMAND THE CASE TO THE COURT OF APPEALS TO PASS ON THIS
QUESTION OF VERMONT LAW.  BUT, AS WE HAVE INDICATED, THERE APPEARS TO
BE NO CONFUSION IN THE VERMONT DECISIONS, NO DEVELOPING LINE OF
AUTHORITIES THAT CASTS A SHADOW OVER THE ESTABLISHED ONES, NO DICTA,
DOUBTS OR AMBIGUITIES IN THE OPINIONS OF VERMONT JUDGES ON THE
QUESTION, NO LEGISLATIVE DEVELOPMENT THAT PROMISES TO UNDERMINE THE
JUDICIAL RULE.  WE SEE NO REASON, THEREFORE, TO REMAND THE CASE TO THE
COURT OF APPEALS TO PASS ON THIS QUESTION OF LOCAL LAW. 

RESPONDENT ARGUES THAT SINCE THE CONTRACT WAS MADE IN NEW YORK AND
THE PARTIES CONTRACTED FOR ARBITRATION UNDER NEW YORK LAW, NEW YORK
ARBITRATION LAW SHOULD BE APPLIED TO THE ENFORCEMENT OF THE CONTRACT. 
A QUESTION OF CONFLICT OF LAWS IS TENDERED, A QUESTION THAT IS ALSO
GOVERNED BY VERMONT LAW.  SEE KLAXON CO. V. STENTOR CO., 313 U.S. 487. 
IT IS NOT CLEAR TO SOME OF US THAT THE DISTRICT COURT RULED ON THAT
QUESTION.  WE MENTION IT EXPLICITLY SO THAT IT WILL BE OPEN FOR
CONSIDERATION ON REMAND OF THE CAUSE TO THE DISTRICT COURT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  SECTION 2 PROVIDES: 

"A WRITTEN PROVISION IN ANY MARITIME TRANSACTION OR A CONTRACT
EVIDENCING A TRANSACTION INVOLVING COMMERCE TO SETTLE BY ARBITRATION A
CONTROVERSY THEREAFTER ARISING OUT OF SUCH CONTRACT OR TRANSACTION, OR
THE REFUSAL TO PERFORM THE WHOLE OR ANY PART THEREOF, OR AN AGREEMENT
IN WRITING TO SUBMIT TO ARBITRATION AN EXISTING CONTROVERSY ARISING OUT
OF SUCH A CONTRACT, TRANSACTION, OR REFUSAL, SHALL BE VALID,
IRREVOCABLE, AND ENFORCEABLE, SAVE UPON SUCH GROUNDS AS EXIST AT LAW OR
IN EQUITY FOR THE REVOCATION OF ANY CONTRACT." 

FN2  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." 

FN3  SECTION 1 DEFINES "COMMERCE" AS: 

"  ...  COMMERCE AMONG THE SEVERAL STATES OR WITH FOREIGN NATIONS, OR
IN ANY TERRITORY OF THE UNITED STATES OR IN THE DISTRICT OF COLUMBIA,
OR BETWEEN ANY SUCH TERRITORY AND ANOTHER, OR BETWEEN ANY SUCH
TERRITORY AND ANY STATE OR FOREIGN NATION, OR BETWEEN THE DISTRICT OF
COLUMBIA AND ANY STATE OR TERRITORY OR FOREIGN NATION, BUT NOTHING
HEREIN CONTAINED SHALL APPLY TO CONTRACTS OF EMPLOYMENT OF SEAMEN,
RAILROAD EMPLOYEES, OR ANY OTHER CLASS OF WORKERS ENGAGED IN FOREIGN OR
INTERSTATE COMMERCE." 

SINCE NO TRANSACTION INVOLVING COMMERCE APPEARS TO BE INVOLVED HERE,
WE DO NOT REACH THE FURTHER QUESTION WHETHER IN ANY EVENT PETITIONER
WOULD BE INCLUDED IN "ANY OTHER CLASS OF WORKERS" WITHIN THE EXCEPTIONS
OF SEC. 1 OF THE ACT. 

FN4  WHETHER THE ARBITRATORS MISCONSTRUED A CONTRACT IS NOT OPEN TO
JUDICIAL REVIEW.  THE HARTBRIDGE, 62 F.2D 72; MUTUAL BENEFIT HEALTH &
ACC.  ASSN.  V. UNITED CAS. CO., 142 F.2D 390.  QUESTIONS OF FAULT OR
NEGLECT ARE SOLELY FOR THE ARBITRATORS' CONSIDERATION.  JAMES
RICHARDSON & SONS V. W.E. HEDGER TRANSPORTATION CORP., 98 F.2D 55. 
ARBITRATORS ARE NOT BOUND BY THE RULES OF EVIDENCE.  BURCHELL V. MARSH,
17 HOW.  344; SPRINGS COTTON MILLS V. BUSTER BOY SUIT CO., 275 APP.
DIV. 196, 200, 88 N.Y.S.2D 295, 298, AFFIRMED, 300 N.Y. 586, 89 N.E.2D
877.  THEY MAY DRAW ON THEIR PERSONAL KNOWLEDGE IN MAKING AN AWARD. 
AMERICAN ALMOND PRODUCTS CO. V. CONSOLIDATED PECAN SALES CO., 144 F.2D
448; THE GULDBORG, 1 F. SUPP. 380; SPRINGS COTTON MILLS V. BUSTER BOY
SUIT CO., SUPRA.  ABSENT AGREEMENT OF THE PARTIES, A WRITTEN TRANSCRIPT
OF THE PROCEEDINGS IS UNNECESSARY.  A.O. ANDERSEN TRADING CO. V.
BRIMBERG, 119 MISC. 784, 197 N.Y.S. 289; APPLICATION OF SHAPIRO, 197
MISC. 241, 97 N.Y.S.2D 644, MODIFIED, 277 APP. DIV. 927, 98 N.Y.S.2D
451.  SWEARING OF WITNESSES MAY NOT BE REQUIRED.  APPLICATION OF
SHAPIRO, SUPRA.  AND THE ARBITRATORS NEED NOT DISCLOSE THE FACTS OR
REASONS BEHIND THEIR AWARD.  SHIRLEY SILK CO. V. AMERICAN SILK MILLS,
INC., 257 APP. DIV. 375, 377, 13 N.Y.S.2D 309, 311.    MR. JUSTICE
FRANKFURTER, CONCURRING. 

IT IS MY VIEW THAT THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE
REVERSED AND THE CASE REMANDED TO THAT COURT AND NOT TO THE DISTRICT
COURT. 

THIS ACTION WAS BROUGHT IN THE BENNINGTON COUNTY COURT OF THE STATE
OF VERMONT BY PETITIONER, A CITIZEN OF VERMONT, AGAINST RESPONDENT, A
CORPORATION OF THE STATE OF NEW YORK.  RESPONDENT REMOVED THE CASE TO
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT.  THE
SUBJECT MATTER OF THE LITIGATION IS A CONTRACT MADE BETWEEN THE PARTIES
IN NEW YORK, AND THE SOLE BASIS OF THE JURISDICTION OF THE DISTRICT
COURT IS DIVERSITY OF CITIZENSHIP.  NOT ONLY WAS THE CONTRACT MADE IN
NEW YORK, BUT THE PARTIES AGREED TO THE FOLLOWING PROVISION IN IT: 

"FOURTEENTH:  THE PARTIES HERETO DO HEREBY STIPULATE AND AGREE THAT
IT IS THEIR INTENTION AND COVENANT THAT THIS AGREEMENT AND PERFORMANCE
HEREUNDER AND ALL SUITS AND SPECIAL PROCEEDINGS HEREUNDER BE CONSTRUED
IN ACCORDANCE WITH AND UNDER AND PURSUANT TO THE LAWS OF THE STATE OF
NEW YORK AND THAT IN ANY ACTION SPECIAL PROCEEDING OR OTHER PROCEEDING
THAT MAY BE BROUGHT ARISING OUT OF, IN CONNECTION WITH OR BY REASON OF
THIS AGREEMENT, THE LAWS OF THE STATE OF NEW YORK SHALL BE APPLICABLE
AND SHALL GOVERN TO THE EXCLUSION OF THE LAW OF ANY OTHER FORUM,
WITHOUT REGARD TO THE JURISDICTION IN WHICH ANY ACTION OR SPECIAL
PROCEEDING MAY BE INSTITUTED." 

RESPONDENT INVOKED ANOTHER PROVISION OF THE CONTRACT WHEREBY DISPUTES
UNDER THE AGREEMENT WERE TO BE SUBMITTED TO ARBITRATION SUBJECT TO THE
REGULATIONS OF THE AMERICAN ARBITRATION ASSOCIATION AND THE PERTINENT
PROVISIONS OF THE NEW YORK ARBITRATION ACT.  IT DID SO BY A MOTION TO
STAY THE PROCEEDING IN THE DISTRICT COURT PENDING ARBITRATION.   THE
DISTRICT COURT DENIED THE STAY BECAUSE, ON ITS READING OF THE VERMONT
CASES, VERMONT LAW, WHILE RECOGNIZING THE BINDING FORCE OF SUCH AN
AGREEMENT BY WAY OF A SUIT FOR DAMAGES, DOES NOT ALLOW SPECIFIC
PERFORMANCE OR A STAY PENDING ARBITRATION.  IT RESTED ON A DECISION
RENDERED BY THE SUPREME COURT OF VERMONT IN A BILL FOR AN ACCOUNTING
EVIDENTLY BETWEEN TWO VERMONTERS AND RELATING WHOLLY TO A VERMONT
TRANSACTION, I.E., A CONTROVERSY ABOUT PERSONAL PROPERTY ON A VERMONT
FARM.  MEAD'S ADMX.  V. OWEN, 83 VT. 132, 74 A. 1058.  (FN1) THIS CASE
WAS DECIDED IN 1910 AND, IN TURN, RELIED ON ASPINWALL V. TOUSEY, 2
TYLER (VT.)  328, DECIDED IN 1803, AUTHORIZING REVOCATION OF A
SUBMISSION TO ARBITRATION AT ANY TIME BEFORE THE PUBLICATION OF AN
AWARD. 

THE COURT OF APPEALS FOUND IT UNNECESSARY TO CONSIDER WHAT THE
VERMONT LAW WAS TODAY, FOR IT HELD THAT THE ARBITRATION PROVISION DID
NOT CONCERN A MATTER OF "SUBSTANTIVE" LAW, FOR WHICH, IN THIS DIVERSITY
CASE, VERMONT LAW WOULD BE CONTROLLING ON THE UNITED STATES DISTRICT
COURT SITTING IN VERMONT.  IT HELD THAT THE ARBITRATION PROVISION FELL
WITHIN THE LAW OF "PROCEDURE" GOVERNING AN ACTION IN THE FEDERAL COURT,
WHATEVER THE SOURCE OF THE JURISDICTION.  SO HOLDING, THE COURT OF
APPEALS FOUND SEC. 3 OF THE UNITED STATES ARBITRATION ACT, 9 U.S.C.
SEC. 3, APPLICABLE AND, ACCORDINGLY, DIRECTED THE DISTRICT COURT TO
HEED THAT ACT AND ALLOW THE MATTER TO GO TO ARBITRATION.  218 F.2D
948. 

THIS COURT EXPLAINED IN GUARANTY TRUST CO. V. YORK, 326 U.S. 99, WHY
THE CATEGORIES OF "SUBSTANCE" AND "PROCEDURE" ARE, IN RELATION TO THE
APPLICATION OF THE DOCTRINE OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64,
LESS THAN SELF-DEFINING.  THEY ARE DELUSIVE.  THE INTRINSIC CONTENT OF
WHAT IS THOUGHT TO BE CONVEYED BY THOSE TERMS IN THE PARTICULAR CONTEXT
OF A PARTICULAR LITIGATION BECOMES THE ESSENTIAL INQUIRY.  THIS MODE OF
APPROACHING THE PROBLEM HAS HAD SEVERAL APPLICATIONS SINCE THE YORK
DECISION.  I AGREE WITH THE COURT'S OPINION THAT THE DIFFERENCES
BETWEEN ARBITRAL AND JUDICIAL DETERMINATION OF A CONTROVERSY UNDER A
CONTRACT SUFFICIENTLY GO TO THE MERITS OF THE OUTCOME, AND NOT MERELY
BECAUSE OF THE CONTINGENCIES OF DIFFERENT INDIVIDUALS PASSING ON THE
SAME QUESTION, TO MAKE THE MATTER ONE OF "SUBSTANCE" IN THE SENSE
RELEVANT FOR ERIE R. CO. V. TOMPKINS.  IN VIEW OF THE GROUND THAT WAS
TAKEN IN THAT CASE FOR ITS DECISION, IT WOULD RAISE A SERIOUS QUESTION
OF CONSTITUTIONAL LAW WHETHER CONGRESS COULD SUBJECT TO ARBITRATION
LITIGATION IN THE FEDERAL COURTS WHICH IS THERE SOLELY BECAUSE IT IS
"BETWEEN CITIZENS OF DIFFERENT STATES,"  U.S. CONST., ART. III, SEC. 2,
IN DISREGARD OF THE LAW OF THE STATE IN WHICH A FEDERAL COURT IS
SITTING.  SINCE THE UNITED STATES ARBITRATION ACT OF 1925 DOES NOT
OBVIOUSLY APPLY TO DIVERSITY CASES, IN THE LIGHT OF ITS TERMS AND THE
RELEVANT INTERPRETIVE MATERIALS, AVOIDANCE OF THE CONSTITUTIONAL
QUESTION IS FOR ME SUFFICIENTLY COMPELLING TO LEAD TO A CONSTRUCTION OF
THE ACT AS NOT APPLICABLE TO DIVERSITY CASES.  (FN2)  OF COURSE THIS
IMPLIES NO OPINION ON THE CONSTITUTIONAL QUESTION THAT WOULD BE
PRESENTED WERE CONGRESS SPECIFICALLY TO MAKE THE ARBITRATION ACT
APPLICABLE IN SUCH CASES.  FURTHERMORE, BECAUSE THE ACT IS NOT HERE
APPLICABLE, I ABSTAIN FROM ANY CONSIDERATION OF THE SCOPE OF ITS
PROVISIONS IN CASES WHICH ARE IN FEDERAL COURTS ON A JURISDICTIONAL
BASIS OTHER THAN DIVERSITY OF CITIZENSHIP. 

VERMONT LAW REGARDING SUCH AN ARBITRATION AGREEMENT AS THE ONE BEFORE
US, THEREFORE, BECOMES DECISIVE OF THE LITIGATION.  BUT WHAT IS VERMONT
LAW?  ONE OF THE DIFFICULTIES, OF COURSE, RESULTING FROM ERIE R. CO. V.
TOMPKINS, IS THAT IT IS NOT ALWAYS EASY AND SOMETIMES DIFFICULT TO
ASCERTAIN WHAT THE GOVERNING STATE LAW IS.  THE ESSENCE OF THE DOCTRINE
OF THAT CASE IS THAT THE DIFFICULTIES OF ASCERTAINING STATE LAW ARE
FRAUGHT WITH LESS MISCHIEF THAN DISREGARD OF THE BASIC NATURE OF
DIVERSITY JURISDICTION, NAMELY, THE ENFORCEMENT OF STATE-CREATED RIGHTS
AND STATE POLICIES GOING TO THE HEART OF THOSE RIGHTS.  IF JUDGE
GIBBON'S STATEMENT OF WHAT IS THE CONTEMPORARY VERMONT LAW RELEVANT TO
THE ARBITRATION PROVISION NOW BEFORE HIM WERE DETERMINATIVE, THAT WOULD
BE THAT.  BUT THE DEFENDANT IS ENTITLED TO HAVE THE VIEW OF THE COURT
OF APPEALS ON VERMONT LAW AND CANNOT, UNDER THE ACT OF CONGRESS, BE
FORECLOSED BY THE DISTRICT COURT'S INTERPRETATION. 

AS LONG AS THERE IS DIVERSITY JURISDICTION, "ESTIMATES" ARE
NECESSARILY OFTEN ALL THAT FEDERAL COURTS CAN MAKE IN ASCERTAINING WHAT
THE STATE COURT WOULD RULE TO BE ITS LAW.  (FN3)  SEE POMERANTZ V.
CLARK, 101 F. SUPP. 341.  THIS COURT OUGHT NOT TO BY-PASS THE COURT OF
APPEALS ON AN ISSUE WHICH, IF THE COURT OF APPEALS HAD MADE A DIFFERENT
ESTIMATE FROM THE DISTRICT COURT'S, OF CONTEMPORANEOUS VERMONT LAW
REGARDING SUCH A CONTRACT AS THE ONE BEFORE US, THIS COURT, ONE CAN
CONFIDENTLY SAY, WOULD NOT HAVE SET ITS VIEW OF VERMONT LAW AGAINST
THAT OF THE COURT OF APPEALS.  FOR THE MERE FACT THAT VERMONT IN 1910
RESTATED ITS OLD LAW AGAINST DENYING EQUITABLE RELIEF FOR BREACH OF A
PROMISE TO ARBITRATE A CONTRACT MADE UNDER SUCH VERMONT LAW, IS HARDLY
A CONCLUSIVE GROUND FOR ATTRIBUTING TO THE VERMONT SUPREME COURT
APPLICATION OF THIS EQUITABLE DOCTRINE IN 1956 TO A CONTRACT MADE IN
NEW YORK WITH EXPLICIT AGREEMENT BY THE PARTIES THAT THE LAW OF NEW
YORK WHICH ALLOWS SUCH A STAY AS WAS HERE SOUGHT, NEW YORK CIVIL
PRACTICE ACT, SEC. 1451, SHOULD GOVERN.  CF. BROWN V. PERRY, 104 VT.
66, 156 A. 910.  LAW DOES CHANGE WITH TIMES AND CIRCUMSTANCES, AND NOT
MERELY THROUGH LEGISLATIVE REFORMS.  (FN4)  IT IS ALSO TO BE NOTED THAT
LAW IS NOT RESTRICTED TO WHAT IS FOUND IN LAW REPORTS, OR OTHERWISE
WRITTEN.  SEE NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362,
369.  THE SUPREME COURT OF VERMONT LAST SPOKE ON THIS MATTER IN 1910. 
THE DOCTRINE THAT IT REFERRED TO WAS NOT A PECULIAR INDIGENOUS VERMONT
RULE.  THE ATTITUDE REFLECTED BY THAT DECISION NEARLY HALF A CENTURY
AGO WAS THE CURRENT TRADITIONAL JUDICIAL HOSTILITY AGAINST OUSTING
COURTS, AS THE PHRASE RAN, OF THEIR JURISDICTION.  SEE THE ADVERSE
COMMENTS OF JUDGE HOUGH IN UNITED STATES ASPHALT REFINING CO. V.
TRINIDAD LAKE PETROLEUM CO., LTD., 222 F. 1006, AGAINST WHAT HE ASSUMED
TO BE THE LAW IN THE FEDERAL COURTS, AND COMPARE WITH THE SHIFT IN
JUDICIAL ATTITUDE REFLECTED BY THE RESERVATION OF THIS QUESTION IN MR.
JUSTICE BRANDEIS' OPINION FOR THE COURT IN RED CROSS LINE V. ATLANTIC
FRUIT CO., 264 U.S. 109.  (FN5)  TO BE SURE, A VIGOROUS LEGISLATIVE
MOVEMENT GOT UNDER WAY IN THE 1920'S EXPRESSIVE OF A BROADENED OUTLOOK
OF VIEW ON THIS SUBJECT.  BUT COURTS DO NOT ALWAYS WAIT FOR LEGISLATION
TO FIND A JUDICIAL DOCTRINE OUTMODED.  ONLY LAST TERM, ALTHOUGH WE HAD
NO STATUTE GOVERNING AN ADJUDICATION, WE FOUND SIGNIFICANCE IN A
RELEVANT BODY OF ENACTMENTS ELSEWHERE:  "A STEADY LEGISLATIVE TREND,
PRESUMABLY MANIFESTING A STRONG SOCIAL POLICY, PROPERLY MADES DEMANDS
ON THE JUDICIAL PROCESS."  NATIONAL CITY BANK OF NEW YORK V. REPUBLIC
OF CHINA, 348 U.S. 356, 360. 

SURELY IN THE LIGHT OF ALL THAT HAS HAPPENED SINCE 1910 IN THE
GENERAL FIELD OF THE LAW OF ARBITRATION, IT IS NOT FOR US TO ASSUME
THAT THE COURT OF APPEALS, IF IT HAD THAT QUESTION FOR CONSIDERATION,
COULD NOT HAVE FOUND THAT THE LAW OF VERMONT TODAY DOES NOT REQUIRE
DISREGARD OF A PROVISION OF A CONTRACT MADE IN NEW YORK, WITH A
PURPOSEFUL DESIRE TO HAVE THE LAW OF NEW YORK GOVERN, TO ACCOMPLISH A
RESULT THAT TODAY MAY BE DEEMED TO BE A GENERAL DOCTRINE OF THE LAW. 
OF COURSE, IF THE COURT OF APPEALS, VERSED IN THE GENERAL JURISPRUDENCE
OF VERMONT AND HAVING AMONG ITS MEMBERS A VERMONT LAWYER, SHOULD FIND
THAT THE VERMONT COURT WOULD, DESPITE THE NEW YORK INCIDENTS OF THE
CONTRACT, APPLY VERMONT LAW AND THAT IT IS THE HABIT OF THE VERMONT
COURT TO ADHERE TO ITS PRECEDENTS AND TO LEAVE CHANGES TO THE
LEGISLATURE, IT WOULD NOT BE FOR THE FEDERAL COURT TO GAINSAY THAT
POLICY.  I AM NOT SUGGESTING WHAT THE COURT OF APPEALS' ANSWER TO THESE
QUESTIONS WOULD BE, STILL LESS WHAT IT SHOULD BE.  I DO MAINTAIN THAT
THE DEFENDANT DOES HAVE THE RIGHT TO HAVE THE JUDGMENT OF THE COURT OF
APPEALS ON THAT QUESTION AND THAT IT IS NOT FOR US TO DENY HIM THAT
RIGHT. 

I WOULD REMAND THE CASE TO THE COURT OF APPEALS FOR ITS DETERMINATION
OF VERMONT LAW ON MATTERS WHICH THE BASIS OF ITS DECISION HERETOFORE
RENDERED IT NEEDLESS TO CONSIDER. 

FN1  THE COURT ALSO CITED SARTWELL V. SOWLES, 72 VT. 270, 48 A. 11. 

FN2  SHANFEROKE COAL & SUPPLY CORP. V. WESTCHESTER SERVICE CORP., 293
U.S. 449, WAS A DIVERSITY CASE WHEREIN SEC. 3 OF THE ARBITRATION ACT
WAS APPLIED.  BUT THE CASE WAS PRE-ERIE, AND THE COURT'S ATTENTION WAS
NOT DIRECTED TOWARD THE QUESTION. 

FN3  IT IS PECULIARLY TRUE OF THE PROBLEM BEFORE US, THAT LAW IS A
PROPHECY "OF WHAT THE COURTS WILL DO IN FACT."  HOLMES, THE PATH OF THE
LAW, IN COLLECTED LEGAL PAPERS, P. 173. 

FN4  THAT THE VERMONT SUPREME COURT DOES NOT OBSTINATELY ADHERE TO
ITS PAST DECISIONS, THAT FOR IT TOO LAW IS LIVING, IS ILLUSTRATED BY
THE FOLLOWING INSTANCES: CAPELLO'S ADMINISTRATOR V. AERO MAYFLOWER
TRANSIT CO., 116 VT. 64, 68 A.2D 913, OVERRULING RONAN V. TURNBULL CO.,
99 VT. 280, 287-288, 131 A. 788, 791-792 (PROOF THAT AN AUTOMOBILE
INVOLVED IN AN ACCIDENT WAS OWNED BY THE DEFENDANT AT THE TIME OF THE
ACCIDENT DOES NOT MAKE A PRIMA FACIE CASE THAT THE OPERATOR OF THE
AUTOMOBILE WAS ENGAGED IN THE DEFENDANT'S SERVICE); BARTLETT V.
BONAZZI, 91 VT. 192, 99 A. 886, OVERRULING FISHER V. BROWN, 1 TYLER
(VT.)  387 (ACTION FOR DECEIT WILL NOT LIE FOR SELLER'S FRAUDULENT
MISREPRESENTATIONS CONCERNING HIS FINANCIAL POSITION WHICH INDUCED
BUYER TO EXTEND CREDIT); STATE V. PIANFETTI, 79 VT. 236, 65 A. 84,
OVERRULING STATE V. KITTLE, 2 TYLER (VT.)  471 (JURY VERDICT OF GUILTY
ON ONE OF FOUR COUNTS IN AN INDICTMENT OPERATED AS AN ACQUITTAL ON THE
OTHER THREE COUNTS); PERRY V. SHUMWAY, 73 VT. 191, 50 A. 1069,
OVERRULING HARTLAND V. HACKETT, 57 VT. 92 (THE ISSUING OF AN EXTENT
AGAINST A DELINQUENT TAX COLLECTOR CONSTITUTES AN ELECTION OF REMEDIES
WHICH BARS AN ACTION ON THE COLLECTOR'S BOND); STATE V. BURPEE, 65 VT.
1, 25 A. 964, OVERRULING STATE V. CROTEAU, 23 VT. 14 (IN A CRIMINAL
TRIAL ALL QUESTIONS OF LAW AS WELL AS FACT ARE FOR THE JURY); WOODROW
V. O'CONNER, 28 VT. 776, AND BAGLEY V. WISWALL, BRAYTON 23, OVERRULING
DRAKE V. COLLINS, 1 TYLER (VT.)  79 (AN ARBITRATION NOTE IS VOID FOR
WANT OF CONSIDERATION).  SEE ALSO GRENIER V. ALTA CREST FARMS, INC.,
115 VT. 324, 58 A.2D 884, DECIDING THAT THE CHARACTER OF THE EMPLOYEE
RIGHT CREATED BY THE VERMONT WORKMEN'S COMPENSATION ACT IS NOT THE SAME
AS THE CHARACTER OF THE RIGHT WHICH EXISTED AT COMMON LAW.  THE OPINION
DRAWS UPON THE RECORDED ATTITUDE OF OTHER JURISDICTIONS TO JUSTIFY ITS
DEPARTURE FROM THE CONTRARY THEORY WHICH IT HAD SET FORTH IN KELLEY V.
HOOSAC LUMBER CO., 96 VT. 153, 118 A. 520. 

FN5  JUDGE HOUGH, IN 1915, STATED: 

"IT HAS NEVER BEEN DENIED THAT THE HOSTILITY OF ENGLISH-SPEAKING
COURTS TO ARBITRATION CONTRACTS PROBABLY ORIGINATED (AS LORD CAMPBELL
SAID IN SCOTT V. AVERY, 4 H.L. CAS. 811) - 'IN THE CONTESTS OF THE
COURTS OF ANCIENT TIMES FOR EXTENSION OF JURISDICTION - ALL OF THEM
BEING OPPOSED TO ANYTHING THAT WOULD ALTOGETHER DEPRIVE EVERY ONE OF
THEM OF JURISDICTION.' 

"A MORE UNWORTHY GENESIS CANNOT BE IMAGINED.  SINCE (AT THE LATEST)
THE TIME OF LORD KENYON, IT HAS BEEN CUSTOMARY TO STAND RATHER UPON THE
ANTIQUITY OF THE RULE THAN UPON ITS EXCELLENCE OR REASON  ...  ."  222
F., AT 1007.    "I THINK THE DECISIONS CITED SHOW BEYOND QUESTION THAT
THE SUPREME COURT HAS LAID DOWN THE RULE THAT SUCH A COMPLETE OUSTER OF
JURISDICTION AS IS SHOWN BY THE CLAUSE QUOTED (THE ARBITRATION CLAUSE)
...  IS VOID IN A FEDERAL FORUM."  222 F., AT 1012. 

ON THE OTHER HAND, IN 1924 THIS COURT OBSERVED IN RED CROSS LINE:
"WE HAVE NO OCCASION TO CONSIDER WHETHER THE UNWILLINGNESS OF THE
FEDERAL COURTS TO GIVE FULL EFFECT TO EXECUTORY AGREEMENTS FOR
ARBITRATION CAN BE JUSTIFIED."  264 U.S., AT 125.    MR. JUSTICE
HARLAN, CONCURRING. 

I CONCUR IN THE OPINION OF THE COURT EXCEPT INSOFAR AS IT UNDERTAKES
TO REVIEW AND AFFIRM THE DISTRICT COURT'S INTERPRETATION OF VERMONT
LAW.  I AGREE WITH MR. JUSTICE FRANKFURTER THAT THE REVIEW OF QUESTIONS
OF STATE LAW SHOULD ORDINARILY BE LEFT TO THE COURTS OF APPEALS AND
WOULD REMAND THE CASE TO THE COURT OF APPEALS FOR THAT PURPOSE.   MR.
JUSTICE BURTON, DISSENTING. 

WHETHER OR NOT SEC. 3 OF THE FEDERAL ARBITRATION ACT IS APPLICABLE TO
THIS CONTRACT, THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE
AFFIRMED. 

ASSUMING THE VALIDITY OF THE ARBITRATION CLAUSE IN THE NEW YORK
CONTRACT HERE INVOLVED, I REGARD THE PROCEDURE WHICH IT PRESCRIBES AS A
PERMISSIBLE "FORM OF TRIAL."  SEE MURRAY OIL PRODUCTS CO. V. MITSUI &
CO., 146 F.2D 381.  ACCORDINGLY, THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF VERMONT MAY STAY ITS OWN PROCEEDINGS TO AWAIT
COMPLETION OF THE ARBITRATION PROCEEDINGS, ALTHOUGH A STATE COURT OF
VERMONT WOULD NOT DO LIKEWISE.  I DO NOT INTERPRET ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, OR GUARANTY TRUST CO. V. YORK, 326 U.S. 99, AS
REQUIRING THE CONTRARY. 
..END :








REA V. UNITED STATES 350 U.S. 214 


NO. 30.  ARGUED NOVEMBER 10, 1955 - DECIDED JANUARY 16, 1956 - 218 F.2D
237, REVERSED. 


ON THE BASIS OF EVIDENCE SEIZED UNDER AN INVALID FEDERAL SEARCH
WARRANT, PETITIONER WAS INDICTED IN A FEDERAL COURT FOR UNLAWFUL
ACQUISITION OF MARIHUANA.  ON HIS MOTION UNDER RULE 41(E) OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE, THIS EVIDENCE WAS SUPPRESSED. 
THEREAFTER HE WAS CHARGED IN A STATE COURT WITH POSSESSION OF MARIHUANA
IN VIOLATION OF STATE LAW.  ALLEGING THAT THE EVIDENCE SUPPRESSED IN
THE FEDERAL COURT WAS THE BASIS OF THE STATE CHARGE, PETITIONER MOVED
IN A FEDERAL COURT FOR AN ORDER ENJOINING THE FEDERAL AGENT WHO HAD
SEIZED THE EVIDENCE FROM TRANSFERRING IT TO STATE AUTHORITIES OR
TESTIFYING WITH RESPECT THERETO IN THE STATE COURTS.  HELD:  THE MOTION
SHOULD HAVE BEEN GRANTED.  PP. 214-218. 

REA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS INDICTED FOR THE UNLAWFUL ACQUISITION OF MARIHUANA IN
VIOLATION OF 26 U.S.C. SEC. 2593(A).  THE INDICTMENT, FOUND IN
SEPTEMBER 1953, WAS BASED ON EVIDENCE OBTAINED BY A SEARCH WARRANT
ISSUED BY A UNITED STATES COMMISSIONER, AS AUTHORIZED BY RULE 41(A) OF
THE RULES OF CRIMINAL PROCEDURE, IN AUGUST 1953.  PETITIONER MOVED
UNDER RULE 41(E) TO SUPPRESS THE EVIDENCE ON THE GROUND THAT THE SEARCH
WARRANT WAS IMPROPERLY ISSUED UNDER RULE 41(C) IN THAT IT WAS
INSUFFICIENT ON ITS FACE, NO PROBABLE CAUSE EXISTED, AND THE AFFIDAVIT
WAS BASED ON UNSWORN STATEMENTS.*  THE DISTRICT COURT GRANTED THE
MOTION TO SUPPRESS AND, ON THE GOVERNMENT'S LATER MOTION, DISMISSED THE
INDICTMENT.  NO MOTION FOR RETURN OF THE EVIDENCE WAS MADE.  THE
EVIDENCE SEIZED WAS INDEED CONTRABAND.  SINCE THE CRIME CHARGED WAS A
VIOLATION OF A PROVISION OF THE INTERNAL REVENUE CODE, 28 U.S.C.  SEC.
2463 WAS APPLICABLE.  THAT SECTION PROVIDES AGAINST THE RETURN OF THE
PROPERTY IN THE FOLLOWING WORDS: 

"ALL PROPERTY TAKEN OR DETAINED UNDER ANY REVENUE LAW OF THE UNITED
STATES SHALL NOT BE REPLEVIABLE, BUT SHALL BE DEEMED TO BE IN THE
CUSTODY OF LAW AND SUBJECT ONLY TO THE ORDERS AND DECREES OF THE COURTS
OF THE UNITED STATES HAVING JURISDICTION THEREOF."  AND SEE 26 U.S.C.
SEC. 2598. 

*RULE 41(C) PROVIDES IN RELEVANT PART AS FOLLOWS: 

"A WARRANT SHALL ISSUE ONLY ON AFFIDAVIT SWORN TO BEFORE THE JUDGE OR
COMMISSIONER AND ESTABLISHING THE GROUNDS FOR ISSUING THE WARRANT.  IF
THE JUDGE OR COMMISSIONER IS SATISFIED THAT GROUNDS FOR THE APPLICATION
EXIST OR THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT THEY EXIST, HE
SHALL ISSUE A WARRANT IDENTIFYING THE PROPERTY AND NAMING OR DESCRIBING
THE PERSON OR PLACE TO BE SEARCHED.  THE WARRANT SHALL BE DIRECTED TO A
CIVIL OFFICER OF THE UNITED STATES AUTHORIZED TO ENFORCE OR ASSIST IN
ENFORCING ANY LAW THEREOF OR TO A PERSON SO AUTHORIZED BY THE PRESIDENT
OF THE UNITED STATES.  IT SHALL STATE THE GROUNDS OR PROBABLE CAUSE FOR
ITS ISSUANCE AND THE NAMES OF THE PERSONS WHOSE AFFIDAVITS HAVE BEEN
TAKEN IN SUPPORT THEREOF." 

AFTER THE DISTRICT COURT SUPPRESSED THE EVIDENCE, A FEDERAL NARCOTICS
AGENT SWORE TO A COMPLAINT BEFORE A NEW MEXICO JUDGE AND CAUSED A
WARRANT FOR PETITIONER'S ARREST TO ISSUE.  PETITIONER HAS NOW BEEN
CHARGED WITH BEING IN POSSESSION OF MARIHUANA IN VIOLATION OF NEW
MEXICO LAW AND AWAITS TRIAL IN THE STATE COURT.  THE CASE AGAINST
PETITIONER IN THE STATE COURT WILL BE MADE BY TESTIMONY OF THE FEDERAL
AGENT BASED ON THE ILLEGAL SEARCH AND ON THE EVIDENCE SEIZED UNDER THE
ILLEGAL FEDERAL WARRANT.  THAT AT LEAST IS THE BASIS OF THE MOTION IN
THE DISTRICT COURT TO ENJOIN THE FEDERAL NARCOTICS AGENT FROM
TESTIFYING IN THE STATE CASE WITH RESPECT TO THE NARCOTICS OBTAINED IN
THE ILLEGAL SEARCH AND, IF THE EVIDENCE SEIZED IS OUT OF THE CUSTODY OF
THE UNITED STATES, TO DIRECT THE AGENT TO REACQUIRE THE EVIDENCE AND
DESTROY IT OR TRANSFER IT TO OTHER AGENTS.  THE DISTRICT COURT DENIED
THE MOTION AND THE COURT OF APPEALS AFFIRMED.  218 F.2D 237.  THE CASE
IS HERE ON A PETITION FOR CERTIORARI WHICH WE GRANTED BECAUSE OF THE
IMPORTANCE OF FEDERAL LAW ENFORCEMENT OF THE QUESTION PRESENTED.  348
U.S. 958. 

THE BRIEFS AND ORAL ARGUMENT HAVE BEEN LARGELY DEVOTED TO
CONSTITUTIONAL QUESTIONS.  IT IS SAID, FOR EXAMPLE, THAT WHILE THE
FOURTH AMENDMENT, AS JUDICIALLY CONSTRUED, WOULD BAR THE USE OF THIS
EVIDENCE IN A FEDERAL PROSECUTION (WEEKS V. UNITED STATES, 232 U.S.
383), OUR DECISION IN WOLF V. COLORADO, 338 U.S. 25, WOULD PERMIT NEW
MEXICO TO USE THE EVIDENCE IN ITS PROSECUTION OF PETITIONER. 
MOREOVER, IT IS SAID THAT TO SUPPRESS THE USE OF THE EVIDENCE IN THE
STATE CRIMINAL PROCEEDINGS WOULD RUN COUNTER TO OUR DECISION IN
STEFANELLI V. MINARD, 342 U.S. 117. 

WE PUT ALL THE CONSTITUTIONAL QUESTIONS TO ONE SIDE.  WE HAVE HERE NO
PROBLEM CONCERNING THE INTERPLAY OF THE FOURTH AND THE FOURTEENTH
AMENDMENTS NOR THE USE WHICH NEW MEXICO MIGHT MAKE OF THE EVIDENCE. 
THE DISTRICT COURT IS NOT ASKED TO ENJOIN STATE OFFICIALS NOR IN ANY
WAY TO INTERFERE WITH STATE AGENCIES IN ENFORCEMENT OF STATE LAW.  CF.
BOSKE V. COMINGORE, 177 U.S. 459.  THE ONLY RELIEF ASKED IS AGAINST A
FEDERAL AGENT, WHO OBTAINED THE PROPERTY AS A RESULT OF THE ABUSE OF
PROCESS ISSUED BY A UNITED STATES COMMISSIONER.  THE PROPERTY SEIZED IS
CONTRABAND WHICH CONGRESS HAD MADE "SUBJECT ONLY TO THE ORDERS AND
DECREES OF THE COURTS OF THE UNITED STATES HAVING JURISDICTION
THEREOF," AS PROVIDED IN 28 U.S.C. SEC. 2463, ALREADY QUOTED.  IN THIS
POSTURE WE HAVE THEN A CASE THAT RAISES NOT A CONSTITUTIONAL QUESTION
BUT ONE CONCERNING OUR SUPERVISORY POWERS OVER FEDERAL LAW ENFORCEMENT
AGENCIES.  CF. MCNABB V. UNITED STATES, 318 U.S. 332. 

A FEDERAL AGENT HAS VIOLATED THE FEDERAL RULES GOVERNING SEARCH AND
SEIZURES - RULES PRESCRIBED BY THIS COURT AND MADE EFFECTIVE AFTER
SUBMISSION TO THE CONGRESS.  SEE 327 U.S. 821 ET SEQ. THE POWER OF THE
FEDERAL COURTS EXTENDS TO POLICING THOSE REQUIREMENTS AND MAKING
CERTAIN THAT THEY ARE OBSERVED.  AS STATED IN WISE V. HENKEL, 220 U.S.
556, 558, WHICH INVOLVED AN ORDER DIRECTING THE DISTRICT ATTORNEY TO
RETURN CERTAIN BOOKS AND PAPERS UNLAWFULLY SEIZED: 

"  ...  IT WAS WITHIN THE POWER OF THE COURT TO TAKE JURISDICTION OF
THE SUBJECT OF THE RETURN AND PASS UPON IT AS THE RESULT OF ITS
INHERENT AUTHORITY TO CONSIDER AND DECIDE QUESTIONS ARISING BEFORE IT
CONCERNING AN ALLEGED UNREASONABLE EXERTION OF AUTHORITY IN CONNECTION
WITH THE EXECUTION OF THE PROCESS OF THE COURT." 

NO INJUNCTION IS SOUGHT AGAINST A STATE OFFICIAL.  THE ONLY REMEDY
ASKED IS AGAINST A FEDERAL AGENT WHO, WE ARE TOLD, PLANS TO USE HIS
ILLEGAL SEARCH AND SEIZURE AS THE BASIS OF TESTIMONY IN THE STATE
COURT.  TO ENJOIN THE FEDERAL AGENT FROM TESTIFYING IS MERELY TO
ENFORCE THE FEDERAL RULES AGAINST THOSE OWING OBEDIENCE TO THEM. 

THE COMMAND OF THE FEDERAL RULES IS IN NO WAY AFFECTED BY ANYTHING
THAT HAPPENS IN A STATE COURT.  THEY ARE DESIGNED AS STANDARDS FOR
FEDERAL AGENTS.  THE FACT THAT THEIR VIOLATION MAY BE CONDONED BY STATE
PRACTICE HAS NO RELEVANCY TO OUR PROBLEM.  FEDERAL COURTS SIT TO
ENFORCE FEDERAL LAW; AND FEDERAL LAW EXTENDS TO THE PROCESS ISSUING
FROM THOSE COURTS.  THE OBLIGATION OF THE FEDERAL AGENT IS TO OBEY THE
RULES.  THEY ARE DRAWN FOR INNOCENT AND GUILTY ALIKE.  THEY PRESCRIBE
STANDARDS FOR LAW ENFORCEMENT.  THEY ARE DESIGNED TO PROTECT THE
PRIVACY OF THE CITIZEN UNLESS THE STRICT STANDARDS SET FOR SEARCHES AND
SEIZURES ARE SATISFIED.  THAT POLICY IS DEFEATED IF THE FEDERAL AGENT
CAN FLOUT THEM AND USE THE FRUITS OF HIS UNLAWFUL ACT EITHER IN FEDERAL
OR STATE PROCEEDINGS.  REVERSED. 

MR. JUSTICE HARLAN, WHOM MR. JUSTICE REED, MR. JUSTICE BURTON, AND
MR. JUSTICE MINTON JOIN, DISSENTING. 

WITHOUT DISCUSSION OF THE COMPETING STATE AND FEDERAL INTERESTS
INVOLVED, THE COURT HOLDS THAT A FEDERAL LAW ENFORCEMENT OFFICER SHOULD
BE ENJOINED FROM TURNING OVER TO STATE AUTHORITIES FOR USE IN A STATE
PROSECUTION EVIDENCE WHICH HE HAS OBTAINED IN CONTRAVENTION OF THE
FOURTH AMENDMENT, AND FROM GIVING TESTIMONY CONCERNING THE EVIDENCE IN
THE STATE PROCEEDINGS.  THIS HOLDING SO FAR DEPARTS FROM THE CONCEPTS
WHICH HAVE HITHERTO BEEN CONSIDERED TO GOVERN STATE AND FEDERAL
RELATIONSHIPS IN THIS AREA THAT I AM CONSTRAINED TO DISSENT. 

1.  THE HOLDING THAT AN INJUNCTION SHOULD ISSUE AGAINST MAKING
AVAILABLE TO NEW MEXICO THE EVIDENCE AND TESTIMONY IN QUESTION IS
RESTED ON THIS COURT'S "SUPERVISORY POWERS OVER FEDERAL LAW ENFORCEMENT
AGENCIES."  SO FAR AS I KNOW, THIS IS THE FIRST TIME IT HAS BEEN
SUGGESTED THAT THE FEDERAL COURTS SHARE WITH THE EXECUTIVE BRANCH OF
THE GOVERNMENT RESPONSIBILITY FOR SUPERVISING LAW ENFORCEMENT
ACTIVITIES AS SUCH.  MCNABB V. UNITED STATES, 318 U.S. 332, CITED BY
THE COURT, STANDS FOR NO SUCH PROPOSITION.  INDEED, IN EXCLUDING THE
MCNABB EVIDENCE IN A FEDERAL TRIAL, THE COURT WAS CAREFUL TO SAY:  "
... WE CONFINE OURSELVES TO OUR LIMITED FUNCTION AS THE COURT OF
ULTIMATE REVIEW OF THE STANDARDS FORMULATED AND APPLIED BY FEDERAL
COURTS IN THE TRIAL OF CRIMINAL CASES.  WE ARE NOT CONCERNED WITH LAW
ENFORCEMENT PRACTICES EXCEPT IN SO FAR AS COURTS THEMSELVES BECOME
INSTRUMENTS OF LAW ENFORCEMENT."  318 U.S., AT 347.  I DO NOT THINK
THAT THIS CASE CAN BE BROUGHT WITHIN MCNABB SIMPLY BECAUSE THE ENJOINED
EVIDENCE WAS SEIZED UNDER AN INVALID COURT PROCESS.  WOULD THE COURT'S
DECISION HAVE BEEN DIFFERENT HAD THERE BEEN NO SEARCH WARRANT AT ALL? 
MOREOVER, THE COURT HAS HERETOFORE REFUSED TO EXTEND THE MCNABB RULE TO
STATE CRIMINAL TRIALS.  STEIN V. NEW YORK, 346 U.S. 156, 186-188;
GALLEGOS V. NEBRASKA, 342 U.S. 55, 63-64. 

2.  NOR CAN THIS DECISION BE SUPPORTED UNDER ANY GENERAL EQUITY
POWER.  FOR ALTHOUGH THE FEDERAL COURTS UNDENIABLY HAVE THE POWER TO
ISSUE AN INJUNCTION IN THIS CASE, THEY ALSO HAVE THE DISCRETION TO
WITHHOLD EQUITABLE RELIEF WHEN, ON THE BALANCE, THE POWER SHOULD NOT BE
EXERCISED.  ON THAT BASIS, I THINK THE DECISION CANNOT BE RECONCILED
WITH THE RATIONALE OF STEFANELLI V. MINARD, 342 U.S. 117.  THERE, IN A
CASE BROUGHT UNDER THE CIVIL RIGHTS ACT, R.S. SEC. 1979, NOW 42 U.S.C.
SEC. 1983, CLAIMING VIOLATION OF PETITIONER'S RIGHTS UNDER THE
FOURTEENTH AMENDMENT, THE COURT REFUSED TO ENJOIN THE USE OF STATE
SEIZED EVIDENCE IN A STATE PROSECUTION, SAYING THAT "THE FEDERAL COURTS
SHOULD REFUSE TO INTERVENE IN STATE CRIMINAL PROCEEDINGS TO SUPPRESS
THE USE OF EVIDENCE EVEN WHEN CLAIMED TO HAVE BEEN SECURED BY UNLAWFUL
SEARCH AND SEIZURE."  ID., AT 120.  THAT HOLDING WAS BASED ON THE
"SPECIAL DELICACY OF THE ADJUSTMENT TO BE PRESERVED BETWEEN FEDERAL
EQUITABLE POWER AND STATE ADMINISTRATION OF ITS OWN LAW."  THE SAME
CONSIDERATION IS APPLICABLE HERE.  THE COURT DISTINGUISHES STEFANELLI
BECAUSE WE ARE "NOT ASKED TO ENJOIN STATE OFFICIALS NOR IN ANY WAY TO
INTERFERE WITH STATE AGENCIES IN ENFORCMENT OF STATE LAW."  BUT THIS
SEEMS TO ME ILLUSORY, FOR, AS THE COURT RECOGNIZES, THE STATE'S CASE
AGAINST PETITIONER APPEARS TO DEPEND WHOLLY ON THE EVIDENCE IN
QUESTION; THE INJUNCTION WILL OPERATE QUITE AS EFFECTIVELY, ALBEIT
INDIRECTLY, TO STULTIFY THE STATE PROSECUTION AS IF IT HAD BEEN ISSUED
DIRECTLY AGAINST NEW MEXICO OR ITS OFFICIALS.  NEW MEXICO'S PROSECUTION
IS AT LEAST AS FAR ADVANCED AS WAS THE STATE PROSECUTION IN
STEFANELLI.  IF NEW MEXICO SHOULD NOW SEEK TO SUBPOENA THE FEDERAL
AGENT, WOULD THE COURT PERMIT HIM TO HONOR THE STATE'S PROCESS?  AND IF
NOT, HOW COULD THAT PROPERLY BE SAID NOT TO IMPINGE DIRECTLY UPON THE
NEW MEXICO PROSECUTION?  TODAY'S DECISION REPRESENTS A REVERSAL OF THE
SOUND POLICY FOLLOWED IN STEFANELLI; I CAN FIND NO JUSTIFICATION FOR
IT.  IT WAS NOT AN ABUSE OF DISCRETION TO WITHHOLD THE RELIEF HERE. 

3.  IT IS SAID THAT THE FEDERAL POLICIES AGAINST UNLAWFUL SEARCHES
AND SEIZURES WILL BE FLOUTED IF A FEDERAL AGENT CAN "USE THE FRUITS OF
HIS UNLAWFUL ACT EITHER IN FEDERAL OR STATE PROCEEDINGS."  BUT THIS
COURT HAS ALREADY HELD THAT ALTHOUGH THE SUBSTANCE OF THE FOURTH
AMENDMENT IS "IMPLICIT IN 'THE CONCEPT OF ORDERED LIBERTY'" AND HENCE
ENFORCEABLE AGAINST THE STATES THROUGH THE FOURTEENTH AMENDMENT,
EVIDENCE UNLAWFULLY SEIZED BY A STATE CAN NEVERTHELESS BE USED IN STATE
PROSECUTIONS.  WOLF V. COLORADO, 338 U.S. 25.  THAT BEING SO, I AM
UNABLE TO UNDERSTAND HOW AN EXERCISE OF FEDERAL EQUITY POWER DESIGNED
TO DENY THE STATE THE USE OF THIS EVIDENCE CAN BE SQUARED WITH THE
POLICIES UNDERLYING WOLF.  THE FACT THAT THE INJUNCTION OPERATES ONLY
AGAINST EVIDENCE STILL IN POSSESSION OF THE FEDERAL AUTHORITIES AND
AGAINST TESTIMONY BY A FEDERAL OFFICER IS FOR ME NOT A SUFFICIENT
ANSWER, SINCE THE ONLY DIFFERENCE I CAN SEE BETWEEN THE WOLF DECISION
AND WEEKS V. UNITED STATES, 232 U.S. 383, EXCLUDING IN FEDERAL CRIMINAL
TRIALS EVIDENCE OBTAINED IN CONTRAVENTION OF THE FOURTH AMENDMENT, IS
THE DIFFERENCE BETWEEN STATE AND FEDERAL COURTS; IN EACH CASE, THE
SUBSTANCE OF THE CONSTITUTIONAL DEMAND IS THE SAME, BUT THE NATURE OF
ENFORCEMENT VARIES WITH THE FORUM.  SO THAT, HAD THE PETITIONER HERE
BEEN CONVICTED IN THE STATE COURTS BY USE OF THIS EVIDENCE, I TAKE IT
THAT WOLF MEANS WE WOULD NOT HAVE INTERFERED, AT LEAST ABSENT ANY
SHOWING OF A MORE AGGRAVATED SEARCH AND SEIZURE THAN THIS RECORD
DISCLOSES.  TO SAY THAT FEDERAL INTERFERENCE IS NEVERTHELESS JUSTIFIED
AT THIS POINT IN THE PROCEEDINGS WHENEVER THE STATE HAS NOT YET
OBTAINED THE EVIDENCE SEEMS TO ME TO MAKE THE MATTER SIMPLY A RACE
BETWEEN A STATE PROSECUTION AND A FEDERAL INJUNCTION PROCEEDING.  I DO
NOT BELIEVE THAT A RULE DEPENDENT ON THE FORTUITOUS CIRCUMSTANCE OF
WINNING THAT RACE IS A SOUND ONE IN THIS IMPORTANT FIELD OF FEDERAL
STATE RELATIONS.  IF, ON THE OTHER HAND, THE COURT IS NOW SAYING THAT
IT IS THE DIFFERENCE BETWEEN THE FOURTH AMENDMENT AND THE FOURTEENTH
WHICH REQUIRES THIS RESULT - A CONCLUSION DISCLAIMED BY THE MAJORITY -
THEN I WOULD STILL REGARD THE INJUNCTION AS IMPROVIDENTLY ISSUED, SINCE
NEW MEXICO SHOULD BE GIVEN THE FIRST OPPORTUNITY TO SUPPRESS THE
EVIDENCE, WITH THIS COURT SITTING IN REVIEW IF THE STATE IMPROPERLY
REFUSES TO DO SO.  CF. DOUGLAS V. JEANNETTE, 319 U.S. 157.    IN
ACCOMMODATING STATE AND FEDERAL INTERESTS IN CRIMINAL LAW ENFORCEMENT,
THIS COURT HAS HITHERTO TAKEN THE VIEW THAT THE STATES SHOULD BE LEFT
FREE TO FOLLOW OR NOT THE FEDERAL EXCLUSIONARY RULE SET FORTH IN WEEKS
V. UNITED STATES, SUPRA.  THE PRESENT DECISION SEEMS TO ME TO BE A STEP
IN THE OPPOSITE AND WRONG DIRECTION.  I THINK THE JUDGMENT BELOW SHOULD
BE AFFIRMED. 
..END :








PENNSYLVANIA, HERMAN V. CLAUDY 350 U.S. 116 


NO. 45.  ARGUED NOVEMBER 14, 1955 - DECIDED JANUARY 9, 1956 - REVERSED
AND REMANDED. 


IN A STATE COURT, PETITIONER PLEADED GUILTY TO NUMEROUS CHARGES OF
BURGLARY, LARCENY, FORGERY AND FALSE PRETENSE, AND HE WAS SENTENCED TO
IMPRISONMENT FOR TERMS AGGREGATING FROM 17 1/2 TO 35 YEARS.  EIGHT
YEARS LATER, HE PETITIONED THE SAME COURT FOR HABEAS CORPUS, CLAIMING
THAT HIS CONVICTION WAS INVALID UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, BECAUSE (1) HIS PLEAS OF GUILTY RESULTED FROM
COERCION AND THREATS BY STATE OFFICERS, AND (2) HE WAS NEVER ADVISED OF
HIS RIGHT TO COUNSEL OR GIVEN THE BENEFIT OF COUNSEL.  THE DISTRICT
ATTORNEY FILED AN ANSWER CHALLENGING THE MATERIALITY OF SOME OF
PETITIONER'S ALLEGATIONS, DENYING OTHERS AND URGING THAT THE WRIT BE
REFUSED BECAUSE OF PETITIONER'S TARDINESS IN CHALLENGING THE JUDGMENT. 
THE PETITION WAS DISMISSED SUMMARILY WITHOUT A HEARING.  HELD:
PETITIONER WAS ENTITLED TO A HEARING, AND THE JUDGMENT IS REVERSED. 
PP. 117-123. 

(A)  PETITIONER'S ALLEGATIONS AS TO HIS TREATMENT PRIOR TO CONFESSION
AND HIS UNDERSTANDING OF THE NATURE AND CONSEQUENCES OF A GUILTY PLEA
PRESENT THE VERY KIND OF DISPUTE THAT SHOULD BE DECIDED ONLY AFTER A
HEARING.  PP. 119-121. 

(B)  NEITHER PETITIONER'S STATEMENT AT HIS TRIAL THAT HE WAS GUILTY
AND THREW HIMSELF UPON THE MERCY OF THE COURT NOR ANY OTHER STATEMENTS
MADE BY HIM AT THAT TIME WERE IN THEMSELVES SUFFICIENT TO REFUTE AS
FRIVOLOUS OR FALSE THE ALLEGATIONS IN HIS PETITION FOR HABEAS CORPUS
CONCERNING MATTERS NOT SHOWN BY THE RECORD.  P. 121. 

(C)  THE NUMBER AND COMPLEXITY OF THE CHARGES AGAINST PETITIONER, AS
WELL AS THEIR SERIOUSNESS, CREATE A STRONG CONVICTION THAT NO LAYMAN
COULD HAVE UNDERSTOOD THE ACCUSATIONS AND THAT PETITIONER SHOULD HAVE
BEEN ADVISED OF HIS RIGHT TO BE REPRESENTED BY COUNSEL.  P. 122. 

(D)  THE MERE FACT THAT PETITIONER HAD, WITHOUT BENEFIT OF COUNSEL,
PLEADED GUILTY TO AN OFFENSE TWO YEARS BEFORE DID NOT SHOW THAT HE HAD
THE CAPACITY TO DEFEND HIMSELF AGAINST THE NUMEROUS CHARGES HERE. 
GIBBS V. BURKE, 337 U.S. 773; UVEGES V. PENNSYLVANIA, 335 U.S. 437. 
PP. 122-123. 

(E)  PETITIONER WAS NOT BARRED FROM PRESENTING HIS CHALLENGE TO THE
CONVICTION, ALTHOUGH EIGHT YEARS HAD PASSED BEFORE HIS PETITION FOR
HABEAS CORPUS WAS FILED.  UVEGES V. PENNSYLVANIA, SUPRA; PALMER V.
ASHE, 342 U.S. 134.  P. 123. 

(F)  PETITIONER'S ALLEGATIONS WERE SUFFICIENT TO ENTITLE HIM TO
RELIEF, IF PROVEN.  PP. 119-120, 123. 

(G)  PETITIONER CANNOT BE DENIED A HEARING MERELY BECAUSE THE
ALLEGATIONS OF HIS PETITION WERE CONTRADICTED BY THE PROSECUTING
OFFICERS, AND HE IS ENTITLED TO RELIEF IF HE CAN PROVE HIS CHARGES.  P.
123. 

PENNSYLVANIA EX REL. HERMAN V. CLAUDY, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA, WESTERN DIVISION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1945 PETITIONER STEPHEN HERMAN PLEADED GUILTY IN A PENNSYLVANIA
STATE COURT TO 8 CHARGES OF BURGLARY, 12 OF LARCENY, 8 OF FORGERY, AND
2 OF FALSE PRETENSE.  (FN1)  HE WAS SENTENCED TO SERVE 17 1/2 TO 35
YEARS IN THE PENITENTIARY, 2 1/2 TO 5 YEARS ON EACH OF THE CHARGES,
SOME RUNNING CONSECUTIVELY, SOME CONCURRENTLY.  EIGHT YEARS LATER, IN
1953, HE FILED THIS PETITION FOR HABEAS CORPUS IN THE SAME PENNSYLVANIA
COURT, ASKING THAT HIS CONVICTION BE HELD INVALID AS IN VIOLATION OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  HE ALLEGED:  (1)
THAT HIS PLEAS OF GUILTY WERE THE RESULT OF COERCION AND THREATS BY
STATE OFFICERS AND (2) THAT AT NO STAGE OF THE PROCEEDINGS WAS HE
EITHER ADVISED OF HIS RIGHT TO OR GIVEN THE BENEFIT OF COUNSEL.  THE
DISTRICT ATTORNEY FILED AN ANSWER CHALLENGING THE MATERIALITY OF SOME
OF PETITIONER'S ALLEGATIONS, DENYING OTHERS, AND URGING THAT THE WRIT
BE REFUSED BECAUSE OF PETITIONER'S TARDINESS IN CHALLENGING THE
JUDGMENT.  HE ASKED THAT THE PETITION BE SUMMARILY DISMISSED ON THE
GROUND THAT "IT WOULD BE A WASTE OF TIME AND VERY EXPENSIVE FOR
WASHINGTON COUNTY TO HAVE THIS DEFENDANT GO INTO A HEARING TO PROVE
CHARGES THAT HE COULD HAVE RAISED AT THE TIME HE WAS SENTENCED BY THIS
COURT."  THE PETITION WAS SUMMARILY DISMISSED WITHOUT A HEARING BY THE
SAME TRIAL JUDGE WHO HAD SENTENCED PETITIONER. 

ON APPEAL, THE SUPERIOR COURT OF THE COMMONWEALTH OF PENNSYLVANIA
AFFIRMED THE DISMISSAL.  176 PA. SUPER.  387, 107 A.2D 595.  THE
SUPREME COURT OF PENNSYLVANIA DENIED LEAVE TO APPEAL WITHOUT OPINION. 
WE GRANTED CERTIORARI, 349 U.S. 904, BECAUSE SUMMARY DISMISSAL IN THE
FACE OF THE PETITIONER'S SERIOUS ALLEGATIONS APPEARED TO BE OUT OF LINE
WITH DECISIONS OF THIS COURT. 

OUR PRIOR DECISIONS HAVE ESTABLISHED THAT:  (1) A CONVICTION
FOLLOWING TRIAL OR ON A PLEA OF GUILTY BASED ON A CONFESSION EXTORTED
BY VIOLENCE OR BY MENTAL COERCION IS INVALID UNDER THE FEDERAL DUE
PROCESS CLAUSE; (FN2)  (2) WHERE A PERSON CONVICTED IN A STATE COURT
HAS NOT INTELLIGENTLY AND UNDERSTANDINGLY WAIVED THE BENEFIT OF COUNSEL
AND WHERE THE CIRCUMSTANCES SHOW THAT HIS RIGHTS COULD NOT HAVE BEEN
FAIRLY PROTECTED WITHOUT COUNSEL, THE DUE PROCESS CLAUSE INVALIDATES
HIS CONVICTION; (FN3)  (3) WHERE A DENIAL OF THESE CONSTITUTIONAL
PROTECTIONS IS ALLEGED IN AN APPROPRIATE PROCEEDING BY FACTUAL
ALLEGATIONS NOT PATENTLY FRIVOLOUS OR FALSE ON A CONSIDERATION OF THE
WHOLE RECORD, THE PROCEEDING SHOULD NOT BE SUMMARILY DISMISSED MERELY
BECAUSE A STATE PROSECUTING OFFICER FILES AN ANSWER DENYING SOME OR ALL
OF THE ALLEGATIONS.  (FN4) 

IN THE LIGHT OF OUR PREVIOUS HOLDINGS WE NOW CONSIDER THE ALLEGATIONS
OF THE PETITION FOR HABEAS CORPUS AND THE PROSECUTING OFFICER'S
ANSWER.  THE PETITION ALLEGED: 

PETITIONER, WHO HAD BEEN TO SCHOOL ONLY 6 YEARS, WAS 21 YEARS OLD
WHEN ARRESTED.  HIS ONLY PRIOR EXPERIENCE WITH CRIMINAL PROCEDURE WAS 2
YEARS EARLIER, WHEN WITHOUT THE BENEFIT OF COUNSEL HE PLEADED GUILTY TO
CHARGES OF BURGLARY, LARCENY, AND FORGERY, AND WAS SENTENCED TO 6 TO 12
MONTHS IN JAIL.  AFTER HIS ARREST ON THE PRESENT CHARGES HE WAS HELD
INCOMMUNICADO FOR 3 DAYS.  DURING THIS PERIOD A STATE TROOPER GRABBED
HIM BY THE NECK AND THREATENED TO CHOKE HIM IF HE DID NOT CONFESS, AND
THERE WERE THREATS AGAINST THE SAFETY OF HIS WIFE AND DAUGHTER. 
PETITIONER FINALLY CONFESSED AFTER 72 HOURS OF INTERMITTENT QUESTIONING
AND WAS TAKEN TO A JUSTICE OF THE PEACE.  HE WAIVED INDICTMENT AND
AGREED TO PLEAD GUILTY TO 3 CHARGES.  MORE THAN A MONTH LATER HE WAS
TAKEN BEFORE THE COURT OF COMMON PLEAS AND CHARGED WITH SOME 30
OFFENSES.  THE ASSISTANT PROSECUTING ATTORNEY DEMANDED THAT PETITIONER
SIGN A PLEA OF GUILTY TO ALL THE CHARGES.  WHEN PETITIONER ASKED WHAT
HE WAS SIGNING, THE ASSISTANT PROSECUTING ATTORNEY SAID "SIGN YOUR NAME
AND FORGET IT."  PETITIONER WAS NOT INFORMED OF THE SERIOUSNESS OF THE
CHARGES BY THE PROSECUTOR OR THE JUDGE; HE DID NOT KNOW THAT HIS PLEA
OF GUILTY COULD RESULT IN A MAXIMUM SENTENCE OF SOME 315 YEARS; HE DID
NOT KNOW NOR WAS HE INFORMED THAT HE COULD HAVE COUNSEL.  PETITIONER
PLEADED GUILTY TO ALL OF THE CHARGES AGAINST HIM.  HE NOW SAYS HE WAS
INNOCENT OF ALL BUT ONE. 

THE DISTRICT ATTORNEY'S ANSWER ALLEGED:  IT WAS IMMATERIAL THAT
PETITIONER WAS ONLY 21 YEARS OLD AND OF LIMITED EDUCATIONAL
BACKGROUND.  SINCE PETITIONER HAD PREVIOUS EXPERIENCE IN CRIMINAL
PROCEDURE FROM THE FORMER CASE IN WHICH HE PLEADED GUILTY, HE
UNDERSTOOD HIS RIGHTS AND WAS BARRED FROM ALLEGING THAT HIS LACK OF
CRIMINAL EXPERIENCE VIOLATED DUE PROCESS.  IT WAS NOT NECESSARY THAT A
DEFENDANT SHOULD HAVE THE ADVICE, SUPPORT, AND ASSISTANCE OF RELATIVES
OR FRIENDS EVEN IF IT BE ASSUMED THAT THERE WAS ANYTHING IN THE RECORD
TO SHOW THAT SUCH AN OPPORTUNITY WAS DENIED TO PETITIONER.  PETITIONER
HAD NO CONSTITUTIONAL RIGHT TO BE INFORMED BY THE COURT OR PROSECUTING
ATTORNEY OF HIS RIGHT TO COUNSEL OR OF THE SEVERITY OF THE SENTENCES
WHICH MIGHT BE IMPOSED UPON HIM.  THERE WAS NO SHOWING THAT PETITIONER
HAD BEEN INJURED BY NOT HAVING COUNSEL.  THE DISTRICT ATTORNEY DID NOT
DENY THAT PETITIONER HAD BEEN TOLD IN THE COURTROOM TO "SIGN YOUR NAME
AND FORGET IT," BUT DENIED ONLY "THAT THE STATEMENTS WERE MADE BY THE
ASSISTANT DISTRICT ATTORNEY IN ORDER TO OBTAIN PLEAS TO THE CHARGES
INVOLVED."  THE DISTRICT ATTORNEY DEFENDED THE STATE'S RIGHT TO CONFINE
PETITIONER FOR A PERIOD OF 72 HOURS ON THE GROUND THAT THIS WAS NOT "AN
UNREASONABLE LENGTH OF TIME TO HOLD A DEFENDANT."  THE CHARGE THAT THE
OFFICERS THREATENED THE SAFETY OF PETITIONER'S WIFE AND DAUGHTER WAS
SPECIFICALLY DENIED AS UNTRUE, AS WAS THE CHARGE THAT PETITIONER WAS
GRABBED BY THE NECK.  THE ANSWER ALLEGED THAT PETITIONER'S CONFESSION
WAS WHOLLY VOLUNTARY. 

THE FOREGOING NARRATIVE OF THE ALLEGATIONS IN THE PETITION AND THE
ANSWER REVEALS A SHARP DISPUTE AS TO THE FACTS MATERIAL TO A
DETERMINATION OF THE CONSTITUTIONAL QUESTIONS INVOLVED.  THE
ALLEGATIONS AS TO PETITIONER'S TREATMENT PRIOR TO CONFESSION AND HIS
UNDERSTANDING OF THE NATURE AND CONSEQUENCES OF A GUILTY PLEA PRESENT
THE VERY KIND OF DISPUTE WHICH SHOULD BE DECIDED ONLY AFTER A HEARING. 
IT IS TRUE THAT THE TRIAL RECORD SHOWS THAT PETITIONER TOLD THE JUDGE
THAT HE WAS GUILTY AND SAID "I THROW MYSELF AT THE MERCY OF THE COURT,
YOUR HONOR."  BUT NEITHER THESE NOR ANY OTHER STATEMENTS MADE BEFORE
THE TRIAL JUDGE AT THAT TIME (FN5) ARE IN THEMSELVES SUFFICIENT TO
REFUTE AS FRIVOLOUS OR FALSE THE SERIOUS CHARGES MADE BY THE PETITIONER
CONCERNING MATTERS NOT SHOWN BY THE RECORD.  SEE PALMER V. ASHE, 342
U.S. 134, 137.  IT IS ENTIRELY POSSIBLE THAT PETITIONER'S PRIOR
CONFESSION CAUSED HIM, IN THE ABSENCE OF COUNSEL, TO ENTER THE GUILTY
PLEA.  MOREOVER, THE NUMBER AND COMPLEXITY OF THE CHARGES AGAINST
PETITIONER, AS WELL AS THEIR SERIOUSNESS, CREATE A STRONG CONVICTION
THAT NO LAYMAN COULD HAVE UNDERSTOOD THE ACCUSATIONS AND THAT
PETITIONER SHOULD, THEREFORE, HAVE BEEN ADVISED OF HIS RIGHT TO BE
REPRESENTED BY COUNSEL.  WE CANNOT AGREE WITH THE PENNSYLVANIA SUPERIOR
COURT THAT THE MERE FACT THAT PETITIONER HAD, WITHOUT THE BENEFIT OF
COUNSEL, PLEADED GUILTY TO AN OFFENSE 2 YEARS BEFORE SHOWED THAT HE HAD
THE CAPACITY TO DEFEND HIMSELF AGAINST THE 30 CHARGES HERE.  WE HELD IN
GIBBS V. BURKE, 337 U.S. 773, THAT IN SPITE OF GIBBS' CONVICTION IN 6
PRIOR CRIMINAL CASES THE CIRCUMSTANCES SHOWED HE WAS ENTITLED TO THE
BENEFIT OF COUNSEL.  IN UVEGES V. PENNSYLVANIA, 335 U.S. 437, WHERE THE
FACTS WERE STRIKINGLY SIMILAR TO THOSE PRESENTED HERE, WE HELD THAT
REPRESENTATION BY COUNSEL WAS REQUIRED BY THE DUE PROCESS CLAUSE.  NOR
WAS PETITIONER BARRED FROM PRESENTING HIS CHALLENGE TO THE CONVICTION
BECAUSE 8 YEARS HAD PASSED BEFORE THIS ACTION WAS COMMENCED.  UVEGES
DID NOT CHALLENGE HIS CONVICTION FOR 7 YEARS.  335 U.S. 437, 438-439. 
AND IN A LATER CASE WE HELD THAT A PRISONER COULD CHALLENGE THE
VALIDITY OF HIS CONVICTION 18 YEARS AFTER HE HAD BEEN CONVICTED. 
PALMER V. ASHE, 342 U.S. 134.  THE SOUND PREMISE UPON WHICH THESE
HOLDINGS RESTED IS THAT MEN INCARCERATED IN FLAGRANT VIOLATION OF THEIR
CONSTITUTIONAL RIGHTS HAVE A REMEDY. 

THE CHIEF ARGUMENT MADE BY THE STATE HERE IN SUPPORT OF THE COURT'S
SUMMARY DISMISSAL OF THE PETITION IS THIS:  "COUNSEL FOR PETITIONER
ARGUES THAT SINCE FACTS ARE ALLEGED IN THE PETITION, A HEARING MUST BE
HELD.  SINCE OUR ANSWER CONTRADICTED THE ALLEGATIONS IN THE PETITION,
THE LOWER COURT WAS NOT REQUIRED TO GRANT A HEARING.  THIS CONTENTION
WAS SUSTAINED BY THE SUPERIOR COURT."  WE CANNOT ACCEPT THIS ARGUMENT. 
UNDER THE ALLEGATIONS HERE PETITIONER IS ENTITLED TO RELIEF IF HE CAN
PROVE HIS CHARGES.  HE CANNOT BE DENIED A HEARING MERELY BECAUSE THE
ALLEGATIONS OF HIS PETITION WERE CONTRADICTED BY THE PROSECUTING
OFFICERS. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  THE COURTS BELOW SO COMPUTED THE CHARGES.  PETITIONER COUNTS
ONLY 27 CHARGES.  THE RECORD CASTS DOUBT ON THE ACCURACY OF BOTH
COMPUTATIONS. 

FN2  E.G., BROWN V. MISSISSIPPI, 297 U.S. 278; CHAMBERS V. FLORIDA,
309 U.S. 227; WATTS V. INDIANA, 338 U.S. 49; TURNER V. PENNSYLVANIA,
338 U.S. 62; HARRIS V. SOUTH CAROLINA, 338 U.S. 68; LEYRA V. DENNO, 347
U.S. 556. 

FN3  E.G., EVEGES V. PENNSYLVANIA, 335 U.S. 437; GIBBS V. BURKE, 337
U.S. 773; RICE V. OLSON, 324 U.S. 786; VON MOLTKE V. GILLIES, 332 U.S.
708; PALMER V. ASHE, 342 U.S. 134; BUTE V. ILLINOIS, 333 U.S. 640;
BETTS V. BRADY, 316 U.S. 455.  IT WAS POINTED OUT IN THE UVEGES CASE
THAT A MINORITY OF THE COURT HAVE CONTENDED THAT ALL PERSONS CHARGED
WITH CRIMES ARE ENTITLED TO COUNSEL UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS. 

FN4  E.G., SMITH V. O'GRADY, 312 U.S. 329; HAWK V. OLSON, 326 U.S.
271; PALMER V. ASHE, 342 U.S. 134; CHESSMAN V. TEETS, 350 U.S. 3.  CF.
MOORE V. DEMPSEY, 261 U.S. 86, 92; WALKER V. JOHNSTON, 312 U.S. 275. 

FN5  WHEN PETITIONER WAS BROUGHT BEFORE THE TRIAL JUDGE TO PLEAD
GUILTY THE PROSECUTING ATTORNEY TALKED AT LENGTH ABOUT THE CHARGES
AGAINST PETITIONER, BUT SAID NOTHING ABOUT SENTENCES WHICH COULD BE
IMPOSED.  PETITIONER'S PART IN THESE PROCEEDINGS WAS VERY SMALL.  THE
FOLLOWING IS THE FULL RECORD OF HIS PARTICIPATION: 

MR. DOCKTOR (THE PROSECUTING ATTORNEY):  "  ...  HOW OLD ARE YOU
NOW? 

"BY THE DEFENDANT:  TWENTY-ONE. 

"BY MR. DOCKTOR:  TWENTY-ONE YEARS OF AGE.  IS THERE ANYTHING YOU
WISH TO STATE TO THE COURT ABOUT YOUR CASE? 

"BY THE DEFENDANT:  I THROW MYSELF: 

"BY THE COURT:  YOU WILL HAVE TO SPEAK LOUDER. 

"BY THE DEFENDANT:  I THROW MYSELF AT THE MERCY OF THE COURT, YOUR
HONOR. 

"BY MR. DOCKTOR:  I WISH TO STATE FOR THE RECORD THAT THE
INFORMATIONS AND PROSECUTIONS WERE MADE BY H. M. JAYNES OF THE
PENNSYLVANIA STATE POLICE. 

"BY THE COURT (ADDRESSING DEFENDANT):  WHERE HAVE YOU WORKED SINCE
YOU WERE PAROLED? 

"BY THE DEFENDANT:  I WORKED AT THE HAZEL. 

"BY THE COURT (ADDRESSING DEFENDANT):  HAVE YOU BEEN WORKING ALL OF
THE TIME SINCE YOU WERE PAROLED IN 1943? 

"BY THE DEFENDANT:  NO, SIR. 

"BY THE COURT:  1944 I BELIEVE IT WAS, WASN'T IT? 

"BY THE DEFENDANT:  NO, SIR; I WAS WORKING AT THE HOSPITAL, TOO. 

"BY THE COURT:  SIR? 

"BY THE DEFENDANT:  I WAS WORKING AT THE HOSPITAL AND HAZEL. 

"BY THE COURT:  AT THE HOSPITAL? 

"BY THE DEFENDANT:  YES. 

"BY THE COURT:  HOW DID YOU COME TO BE WORKING AT THE HOSPITAL? 

"BY THE DEFENDANT:  I WORKED THERE.  I WAS PAROLED FOR THAT. 

"BY THE COURT:  YOU ARE THE FELLOW WHO RAN AWAY FROM THERE WHILE YOU
WERE ON PAROLE. 

"BY THE DEFENDANT:  THAT IS RIGHT; YES, SIR. 

"BY THE COURT:  WILL YOU EXPLAIN TO ME WHY THE COURT SHOULD EXTEND
ANY LENIENCY TO YOU? 

"BY THE DEFENDANT:  NO, SIR. 

"BY THE COURT:  WE HAVE TRUSTED YOU TWICE BEFORE AND YOU HAVE NEVER
COMPLIED WITH ANY OF THE CONDITIONS THAT YOU WERE PAROLED ON. 

"BY THE DEFENDANT:  I TRIED TO. 

"BY THE COURT:  YOU DIDN'T EVEN TRY TO.  YOU COULD HAVE CONTINUED TO
WORK UP THERE AND YOU WOULDN'T DO THAT.  WHERE DID YOU GO TO WHEN YOU
RAN AWAY FROM THE JOB AT THE HOSPITAL? 

"BY THE DEFENDANT:  I STARTED TO WORK DOWN AT HAZEL. 

"BY THE COURT:  YOU WERE WORKING AROUND THIS TOWN: 

"BY THE DEFENDANT:  YES, SIR. 

"BY THE COURT:  - WHILE THE OFFICERS WERE SEARCHING FOR YOU? 

"BY THE DEFENDANT:  NO. 

"BY THE COURT:  WHERE WERE YOU? 

"BY THE DEFENDANT:  I WAS HERE IN TOWN BUT NOT WORKING. 

"BY THE COURT:  YOU SECURED YOUR PAROLE ON PROMISE OF GOOD BEHAVIOR. 

"BY THE DEFENDANT:  YES, SIR. 

"BY THE COURT:  IN THE MEANTIME, YOU HAVE COMMITTED NUMEROUS
BURGLARIES AND FORGERIES AND VARIOUS FELONIES? 

"BY THE DEFENDANT:  YES, SIR. 

"BY THE COURT:  NOW YOU WANT THE COURT TO HAVE MERCY.  THERE IS AN
END TO BEING MERCIFUL.  WE DID THAT IN 1944  ...  ." 
..END :


















RYAN STEVEDORING CO., INC. V. PAN-ATLANTIC STEAMSHIP CORP. 350 U.S. 124 



NO. 4.  ARGUED MARCH 3-4, 1955; AFFIRMED BY AN EQUALLY DIVIDED COURT,
APRIL 11, 1955; REHEARING GRANTED, MAY 16, 1955; REARGUED OCTOBER 11
12, 1955 - DECIDED JANUARY 9, 1956 - 211 F.2D 277, AFFIRMED. 


WITHOUT SIGNING A FORMAL STEVEDORING CONTRACT OR AN EXPRESS INDEMNITY
AGREEMENT, A STEVEDORING CONTRACTOR AGREED TO PERFORM ALL STEVEDORING
OPERATIONS REQUIRED BY A SHIPOWNER IN THE LATTER'S COASTWISE SERVICE. 
UNDER THIS AGREEMENT, THE CONTRACTOR LOADED A SHIP AT GEORGETOWN, S.C.,
WITH A MIXED CARGO, INCLUDING ROLLS OF PULPBOARD, AND UNLOADED IT IN
NAVIGABLE WATER AT A PIER IN BROOKLYN, N.Y.  DURING THE UNLOADING, A
LONGSHOREMAN EMPLOYED BY THE CONTRACTOR WAS INJURED BY A ROLL OF
PULPBOARD WHICH HAD BEEN INSUFFICIENTLY SECURED WHEN STORED BY THE
CONTRACTOR IN GEORGETOWN.  UNDER THE LONGSHOREMAN'S ACT, THE
CONTRACTOR'S INSURANCE CARRIER PAID THE LONGSHOREMAN COMPENSATION AND
FURNISHED HIM MEDICAL SERVICES, WITHOUT ANY FORMAL AWARD BY THE DEPUTY
COMMISSIONER.  CLAIMING THAT, BECAUSE OF UNSAFE STOWAGE OF THE CARGO,
THE SHIP WAS UNSEAWORTHY AND THAT THE SHIPOWNER HAD NEGLECTED TO
FURNISH HIM WITH A SAFE PLACE TO WORK, THE LONGSHOREMAN SUED THE
SHIPOWNER AND OBTAINED A JUDGMENT FOR A MUCH LARGER SUM, FROM WHICH THE
CONTRACTOR'S INSURANCE CARRIER WAS TO BE REIMBURSED FOR THE AMOUNT IT
HAD ADVANCED TO THE LONGSHOREMAN.  HELD:  ON THE SHIPOWNER'S THIRD
PARTY COMPLAINT AGAINST THE CONTRACTOR, THE SHIPOWNER WAS ENTITLED TO
REIMBURSEMENT FROM THE CONTRACTOR FOR THE AMOUNT OF THE JUDGMENT
AGAINST THE SHIPOWNER.  PP. 125-135. 

1.  SECTION 5 OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT, WHICH PROVIDES THAT THE LIABILITY OF AN EMPLOYER PRESCRIBED IN
SEC. 4 "SHALL BE EXCLUSIVE AND IN PLACE OF ALL OTHER LIABILITY OF SUCH
EMPLOYER TO THE EMPLOYEE," DOES NOT PRECLUDE ASSERTION BY THE SHIPOWNER
OF THE CONTRACTOR'S CONTRACTUAL LIABILITY TO IT, THOUGH THE CONTRACTOR
WAS ALSO THE EMPLOYER OF THE INJURED LONGSHOREMAN.  PP. 128-132. 

2.  EVEN IN THE ABSENCE OF AN EXPRESS AGREEMENT OF INDEMNITY, THE
CONTRACTOR WAS OBLIGATED TO REIMBURSE THE SHIPOWNER FOR DAMAGES CAUSED
IT BY THE CONTRACTOR'S BREACH OF ITS CONTRACT TO STOW THE CARGO
PROPERLY AND SAFELY.  PP. 132-134. 

3.  HALCYON LINES V. HAENN SHIP CORP., 342 U.S. 282, DISTINGUISHED. 
P. 133. 

4.  THAT THE SHIPOWNER HAD AN OBLIGATION TO SUPERVISE THE STOWAGE AND
HAD A RIGHT TO REJECT UNSAFE STOWAGE AND DID NOT DO SO DOES NOT BAR THE
SHIPOWNER'S RIGHT TO RECOVER FROM THE CONTRACTOR ANY DAMAGE CAUSED BY
THE CONTRACTOR'S FAILURE TO STOW THE ROLLS SAFELY.  PP. 134-135. 

RYAN STEVEDORING CO., INC. V. PAN-ATLANTIC STEAMSHIP CORP. 

ON REHEARING. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS TWO QUESTIONS AS TO THE LIABILITY OF A STEVEDORING
CONTRACTOR TO REIMBURSE A SHIPOWNER FOR DAMAGES PAID BY THE LATTER TO
ONE OF THE CONTRACTOR'S LONGSHOREMEN ON ACCOUNT OF INJURIES RECEIVED BY
HIM IN THE COURSE OF HIS EMPLOYMENT ON SHIPBOARD.  1.  THE FIRST
QUESTION IS WHETHER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT (FN1) PRECLUDES A SHIPOWNER FROM ASSERTING SUCH A LIABILITY.  2. 
THE SECOND IS WHETHER THE LIABILITY EXISTS WHERE A CONTRACTOR, WITHOUT
ENTERING INTO AN EXPRESS AGREEMENT OF INDEMNITY, CONTRACTS TO PERFORM A
SHIPOWNER'S STEVEDORING OPERATIONS AND THE LONGSHOREMAN'S INJURIES ARE
CAUSED BY THE CONTRACTOR'S UNSAFE STOWAGE OF THE SHIP'S CARGO.  FOR THE
REASONS HEREAFTER STATED, WE ANSWER THE FIRST QUESTION IN THE NEGATIVE
AND THE SECOND IN THE AFFIRMATIVE. 

IN 1949, RESPONDENT, PAN-ATLANTIC STEAMSHIP CORPORATION, A DELAWARE
CORPORATION, OPERATED THE SS. CANTON VICTORY IN THE AMERICAN COASTWISE
TRADE UNDER A BAREBOAT CHARTER.  AS EVIDENCED BY LETTERS, BUT WITHOUT A
FORMAL STEVEDORING CONTRACT OR AN EXPRESS INDEMNITY AGREEMENT,
RESPONDENT SECURED, FOR THAT YEAR, THE AGREEMENT OF PETITIONER, RYAN
STEVEDORING CO., INC., AN ALABAMA CORPORATION, TO PERFORM ALL
STEVEDORING OPERATIONS REQUIRED BY RESPONDENT IN ITS COASTWISE
SERVICE.  PURSUANT TO THAT CONTRACT, PETITIONER LOADED THE CANTON
VICTORY AT GEORGETOWN, SOUTH CAROLINA, WITH MIXED CARGO.   THIS
INCLUDED PULPBOARD, SUCH AS IS USED IN MAKING CORRUGATED PAPER AND
PAPER BAGS, SHIPPED IN ROLLS 4 FEET WIDE AND 3 TO 5 FEET LONG. 
PETITIONER STOWED SOME OF THESE ROLLS SIDE-BY-SIDE ON THE FLOOR OF
HATCH NO. 3 AND "NESTED" OTHERS ABOVE THEM BY PLACING THE UPPER ROLLS
IN THE TROUGHS BETWEEN THE LOWER ONES.  TO IMMOBILIZE THE ROLLS, IT WAS
NECESSARY TO SECURE OR "CHOCK" THE BOTTOM TIER WITH WEDGES OR WITH
MISCELLANEOUS PIECES OF WOOD KNOWN AS "DUNNAGE."  THERE IS LITTLE
EVIDENCE AS TO WHAT TOOK PLACE WHEN THE ROLLS WERE STOWED AT GEORGETOWN
BUT IT WAS THE UNIFORM PRACTICE OF PETITIONER'S LONGSHOREMEN TO STOW
SUCH CARGO UNDER THE IMMEDIATE DIRECTION OF THEIR HATCH FOREMEN, WHILE
RESPONDENT'S CARGO OFFICERS SUPERVISED THE LOADING OF THE ENTIRE SHIP
AND HAD AUTHORITY TO REJECT UNSAFE STOWAGE. 

A FEW DAYS LATER, ON JULY 20, 1949, IN NAVIGABLE WATER AT A PIER IN
BROOKLYN, NEW YORK, PETITIONER ENGAGED IN UNLOADING THESE ROLLS.  WHILE
ONE OF PETITIONER'S BROOKLYN LONGSHOREMEN, FRANK PALAZZOLO, WAS WORKING
IN HATCH NO. 3, ONE ROLL, WEIGHING ABOUT 3,200 POUNDS, BROKE LOOSE FROM
THE OTHERS, STRUCK HIM VIOLENTLY AND SEVERELY INJURED HIS LEFT LEG. 
THERE IS NO EVIDENCE THAT HE WAS NEGLIGENT.   ON THE OTHER HAND, IT
APPEARS THAT THE ROLLS IN HATCH NO. 3 HAD BEEN INSUFFICIENTLY SECURED
WHEN STOWED BY PETITIONER IN GEORGETOWN.  THIS IS ESTABLISHED BY THE
ABSENCE OF PROPER WEDGES AND DUNNAGE HOLDING THE ROLLS IN PLACE AT THE
TIME OF THE ACCIDENT. 

PETITIONER'S INSURANCE CARRIER UNDER THE LONGSHOREMEN'S ACT PAID
PALAZZOLO $2,940 COMPENSATION AND FURNISHED HIM MEDICAL SERVICES
COSTING  $9,857.36, ALL WITHOUT ANY FORMAL AWARD BY THE DEPUTY
COMMISSIONER.  AS PERMITTED BY SEC. 33 OF THAT ACT, PALAZZOLO SUED THE
RESPONDENT-SHIPOWNER IN THE SUPREME COURT OF NEW YORK.  (FN2)  HE
CLAIMED THAT THE UNSAFE STOWAGE OF THE CARGO, WHICH CAUSED HIS
INJURIES, ESTABLISHED EITHER THE UNSEAWORTHINESS OF THE SHIP, OR THE
SHIPOWNER'S NEGLIGENCE IN FAILING TO FURNISH HIM WITH A SAFE PLACE TO
WORK, OR BOTH.  THE SHIPOWNER REMOVED THE CASE TO THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK AND FILED A THIRD
PARTY COMPLAINT AGAINST PETITIONER.  BY STIPULATION, PALAZZOLO'S CASE
AGAINST THE SHIPOWNER WAS TRIED TO A JURY, WHICH RETURNED A VERDICT IN
HIS FAVOR FOR $75,000.  THE DISTRICT COURT ENTERED JUDGMENT ON THE JURY
VERDICT.  FROM THE ABOVE SUM, PETITIONER'S INSURANCE CARRIER WAS TO BE
REIMBURSED FOR THE $12,797.36 IT HAD ADVANCED BECAUSE OF PALAZZOLO'S
INJURIES. 

ALSO BY STIPULATION, THE SHIPOWNER'S THIRD-PARTY COMPLAINT WAS
SUBMITTED ON THE SAME RECORD TO THE JUDGE WHO HAD PRESIDED OVER
PALAZZOLO'S CASE.  HE DISMISSED THE COMPLAINT.  111 F. SUPP. 505.  THE
COURT OF APPEALS AFFIRMED PALAZZOLO'S JUDGMENT BUT REVERSED THE
DISMISSAL OF THE THIRD-PARTY COMPLAINT AND DIRECTED THAT JUDGMENT BE
ENTERED FOR THE SHIPOWNER.  211 F.2D 277.  PETITIONER, THE STEVEDORING
CONTRACTOR, CONTENDS THAT THE ORDER REVERSING THE DISMISSAL OF THE
IMPLEADER SUIT IS ERRONEOUS.  BECAUSE OF THE WIDE APPLICATION OF THE
CASE AND THE CONFLICTING VIEWS THAT HAVE BEEN EXPRESSED ON THE ISSUES,
WE GRANTED CERTIORARI.  348 U.S. 813.  THE UNITED STATES FILED A BRIEF
AS AMICUS CURIAE IN SUPPORT OF THE SHIPOWNER AND TOOK PART IN THE ORAL
ARGUMENT.  348 U.S. 948.  THE JUDGMENT WAS AFFIRMED BY AN EQUALLY
DIVIDED COURT, 349 U.S. 901, BUT THE CASE WAS RESTORED TO THE DOCKET
FOR REARGUMENT BEFORE A FULL COURT, 349 U.S. 926. 

1.  THE FIRST QUESTION IS WHETHER THE LONGSHOREMEN'S COMPENSATION ACT
PRECLUDES THE ASSERTION BY A SHIPOWNER OF A STEVEDORING CONTRACTOR'S
LIABILITY TO IT, WHERE THE CONTRACTOR IS ALSO THE EMPLOYER OF THE
INJURED LONGSHOREMAN. 

NEITHER COURT BELOW DISCUSSED THIS QUESTION, ALTHOUGH PETITIONER
PRESENTED IT TO THEM.  PETITIONER'S ARGUMENT IS BASED UPON THE
FOLLOWING PROVISION IN THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT: 

"SEC. 5.  THE LIABILITY OF AN EMPLOYER PRESCRIBED IN SECTION 4 FOR
COMPENSATION 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, EXCEPT THAT IF AN EMPLOYER FAILS TO SECURE
PAYMENT OF COMPENSATION AS REQUIRED BY THIS ACT, AN INJURED EMPLOYEE,
OR HIS LEGAL REPRESENTATIVE IN CASE DEATH RESULTS FROM THE INJURY, MAY
ELECT TO CLAIM COMPENSATION UNDER THIS ACT, OR TO MAINTAIN AN ACTION AT
LAW OR IN ADMIRALTY FOR DAMAGES ON ACCOUNT OF SUCH INJURY OR DEATH  ...
."  44 STAT. 1426, 33 U.S.C. SEC. 905. 

THE OBVIOUS PURPOSE OF THIS PROVISION IS TO MAKE THE STATUTORY
LIABILITY OF AN EMPLOYER TO CONTRIBUTE TO ITS EMPLOYEE'S COMPENSATION
THE EXCLUSIVE LIABILITY OF SUCH EMPLOYER TO ITS EMPLOYEE, OR TO ANYONE
CLAIMING UNDER OR THROUGH SUCH EMPLOYEE, ON ACCOUNT OF HIS INJURY OR
DEATH ARISING OUT OF THAT EMPLOYMENT.  IN RETURN, THE EMPLOYEE, AND
THOSE CLAIMING UNDER OR THROUGH HIM, ARE GIVEN A SUBSTANTIAL QUID PRO
QUO IN THE FORM OF AN ASSURED COMPENSATION, REGARDLESS OF FAULT, AS A
SUBSTITUTE FOR THEIR EXCLUDED CLAIMS.  ON THE OTHER HAND, THE ACT
PRESCRIBES NO QUID PRO QUO FOR A SHIPOWNER THAT IS COMPELLED TO PAY A
JUDGMENT OBTAINED AGAINST IT FOR THE FULL AMOUNT OF A LONGSHOREMAN'S
DAMAGES.  (FN3) 

"TO THE EMPLOYEE," OR OTHERS, ENTITLED TO RECOVER "ON ACCOUNT OF SUCH
EMPLOYEE'S INJURY OR DEATH."  THEREFORE, IN THE INSTANT CASE, IT
EXCLUDES THE LIABILITY OF THE STEVEDORING CONTRACTOR TO ITS
LONGSHOREMAN, AND TO HIS KIN, FOR DAMAGES ON ACCOUNT OF THE
LONGSHOREMAN'S INJURIES.  AT THE SAME TIME, HOWEVER, SEC. 5 EXPRESSLY
PRESERVES TO EACH EMPLOYEE A RIGHT TO RECOVER DAMAGES AGAINST THIRD
PERSONS.  (FN4)  IT THUS PRESERVES THE RIGHT, WHICH PALAZZOLO HAS
EXERCISED, TO RECOVER DAMAGES FROM THE SHIPOWNER IN THE PRESENT CASE. 
THE ACT NOWHERE EXPRESSLY EXCLUDES OR LIMITS A SHIPOWNER'S RIGHT, AS A
THIRD PERSON, TO INSURE ITSELF AGAINST SUCH A LIABILITY EITHER BY A
BOND OF INDEMNITY, OR THE CONTRACTOR'S OWN AGREEMENT TO SAVE THE
SHIPOWNER HARMLESS.  PETITIONER'S AGREEMENT IN THE INSTANT CASE AMOUNTS
TO THE LATTER FOR, AS WILL BE SHOWN, IT IS A CONTRACTUAL UNDERTAKING TO
STOW THE CARGO "WITH REASONABLE SAFETY" AND THUS TO SAVE THE SHIPOWNER
HARMLESS FROM PETITIONER'S FAILURE TO DO SO. 

IN THE FACE OF A FORMAL BOND OF INDEMNITY THIS STATUTE CLEARLY DOES
NOT CUT OFF A SHIPOWNER'S RIGHT TO RECOVER FROM A BONDING COMPANY THE
REIMBURSEMENT THAT THE INDEMNITOR, FOR GOOD CONSIDERATION, HAS
EXPRESSLY CONTRACTED TO PAY.  SUCH A LIABILITY SPRINGS FROM AN
INDEPENDENT CONTRACTUAL RIGHT.  IT IS NOT AN ACTION BY OR ON BEHALF OF
THE EMPLOYEE AND IT IS NOT ONE TO RECOVER DAMAGES "ON ACCOUNT OF" AN
EMPLOYEE'S "INJURY OR DEATH."  IT IS A SIMPLE ACTION TO RECOVER, UNDER
A VOLUNTARY AND SELF-SUFFICIENT CONTRACT, A SUM MEASURED BY FORESEEABLE
DAMAGES OCCASIONED TO THE SHIPOWNER BY THE INJURY OR DEATH OF A
LONGSHOREMAN ON ITS SHIP. 

A LIKE RESULT OCCURS WHERE A SHIPOWNER SUES, FOR BREACH OF WARRANTY,
A SUPPLIER OF DEFECTIVE SHIP'S GEAR THAT HAS CAUSED INJURY OR DEATH TO
A LONGSHOREMAN USING IT IN THE COURSE OF HIS EMPLOYMENT ON SHIPBOARD. 
AND A LIKE LIABILITY FOR BREACH OF CONTRACT ACCRUES TO A SHIPOWNER
AGAINST A STEVEDORING CONTRACTOR IN ANY INSTANCE WHEN THE LATTER'S
IMPROPER STOWAGE OF CARGO CAUSES AN INJURY ON SHIPBOARD TO SOME ONE
OTHER THAN ONE OF ITS EMPLOYEES.  THE COINCIDENCE THAT THE LOADING
CONTRACTOR HERE HAPPENS TO BE THE EMPLOYER OF THE INJURED LONGSHOREMAN
MAKES NO DIFFERENCE IN PRINCIPLE.  WHILE THE COMPENSATION ACT PROTECTS
A STEVEDORING CONTRACTOR FROM ACTIONS BROUGHT AGAINST IT BY ITS
EMPLOYEE ON ACCOUNT OF THE CONTRACTOR'S TORTIOUS CONDUCT CAUSING INJURY
TO THE EMPLOYEE, THE CONTRACTOR HAS NO LOGICAL GROUND FOR RELIEF FROM
THE FULL CONSEQUENCES OF ITS INDEPENDENT CONTRACTUAL OBLIGATION,
VOLUNTARILY ASSUMED TO THE SHIPOWNER, TO LOAD THE CARGO PROPERLY.  SEE
AMERICAN STEVEDORES V. PORELLO, 330 U.S. 446; CRAWFORD V. POPE &
TALBOT, 206 F.2D 784, 792-793; BROWN V. AMERICAN-HAWAIIAN S.S. CO., 211
F.2D 16; RICH V. UNITED STATES, 177 F.2D 688; UNITED STATES V. ARROW
STEVEDORING CO., 175 F.2D 329.  (FN5) 

THE SHIPOWNER'S ACTION HERE IS NOT FOUNDED UPON A TORT OR UPON ANY
DUTY WHICH THE STEVEDORING CONTRACTOR OWES TO ITS EMPLOYEE.  THE THIRD
PARTY COMPLAINT IS GROUNDED UPON THE CONTRACTOR'S BREACH OF ITS PURELY
CONSENSUAL OBLIGATION OWING TO THE SHIPOWNER TO STOW THE CARGO IN A
REASONABLY SAFE MANNER.  ACCORDINGLY, THE SHIPOWNER'S ACTION FOR
INDEMNITY ON THAT BASIS IS NOT BARRED BY THE COMPENSATION ACT.  (FN6) 

2.  THE OTHER QUESTION IS WHETHER, IN THE ABSENCE OF AN EXPRESS
AGREEMENT OF INDEMNITY, A STEVEDORING CONTRACTOR IS OBLIGATED TO
REIMBURSE A SHIPOWNER FOR DAMAGES CAUSED IT BY THE CONTRACTOR'S
IMPROPER STOWAGE OF CARGO. 

THE ANSWER TO THIS IS FOUND IN THE PRECISE GROUND OF THE SHIPOWNER'S
ACTION.  BY HYPOTHESIS, ITS ACTION IS NOT BASED ON A BOND OF INDEMNITY
SUCH AS IT MAY PURCHASE BY WAY OF INSURANCE, OR MAY REQUIRE OF ITS
STEVEDORING CONTRACTOR, AND WHICH EXPRESSLY UNDERTAKES TO SAVE THE
SHIPOWNER HARMLESS.  IF THE SHIPOWNER DID HOLD SUCH AN EXPRESS
AGREEMENT OF INDEMNITY HERE, IT IS NOT DISPUTED THAT IT WOULD BE
ENFORCEABLE AGAINST THE INDEMNITOR.  ON THE OTHER HAND, THE SHIPOWNER'S
ACTION FOR INDEMNITY HERE IS NOT BASED MERELY ON THE GROUND THAT THE
SHIPOWNER AND CONTRACTOR EACH IS RESPONSIBLE IN SOME RELATED DEGREE FOR
THE TORTIOUS STOWAGE OF CARGO THAT CAUSED INJURY TO PALAZZOLO.  SUCH AN
ACTION, BROUGHT WITHOUT RELIANCE UPON CONTRACTUAL UNDERTAKINGS, WOULD
PRESENT THE BALD QUESTION WHETHER THE STEVEDORING CONTRACTOR OR THE
SHIPOWNER, BECAUSE OF THEIR RESPECTIVE RESPONSIBILITIES FOR THE UNSAFE
STOWAGE, SHOULD BEAR THE ULTIMATE BURDEN OF THE INJURED LONGSHOREMAN'S
JUDGMENT.  THAT QUESTION HAS BEEN WIDELY DISCUSSED ELSEWHERE IN TERMS
OF THE RELATIVE RESPONSIBILITY OF THE PARTIES FOR THE TORT, AND THOSE
DISCUSSIONS HAVE DEALT WITH CONCEPTS OF PRIMARY AND SECONDARY OR ACTIVE
AND PASSIVE TORTIOUS CONDUCT.  (FN7)  BECAUSE RESPONDENT IN THE INSTANT
CASE RELIES ENTIRELY UPON PETITIONER'S CONTRACTUAL OBLIGATION, WE DO
NOT MEET THE QUESTION OF A NONCONTRACTUAL RIGHT OF INDEMNITY OR OF THE
RELATION OF THE COMPENSATION ACT TO SUCH A RIGHT. 

THE SHIPOWNER'S CLAIM HERE ALSO IS NOT A CLAIM FOR CONTRIBUTION FROM
A JOINT TORTFEASOR.  CONSEQUENTLY, THE CONSIDERATIONS WHICH LED TO THE
DECISION IN HALCYON LINES V. HAENN SHIP CORP., 342 U.S. 282, ARE NOT
APPLICABLE.  SEE AMERICAN MUTUAL LIABILITY INS. CO. V. MATTHEWS, 182
F.2D 322. 

THE SHIPOWNER HERE HOLDS PETITIONER'S UNCONTROVERTED AGREEMENT TO
PERFORM ALL OF THE SHIPOWNER'S STEVEDORING OPERATIONS AT THE TIME AND
PLACE WHERE THE CARGO IN QUESTION WAS LOADED.  THAT AGREEMENT
NECESSARILY INCLUDES PETITIONER'S OBLIGATION NOT ONLY TO STOW THE PULP
ROLLS, BUT TO STOW THEM PROPERLY AND SAFELY.  COMPETENCY AND SAFETY OF
STOWAGE ARE INESCAPABLE ELEMENTS OF THE SERVICE UNDERTAKEN.  THIS
OBLIGATION IS NOT A QUASI-CONTRACTUAL OBLIGATION IMPLIED IN LAW OR
ARISING OUT OF A NONCONTRACTUAL RELATIONSHIP.  IT IS OF THE ESSENCE OF
PETITIONER'S STEVEDORING CONTRACT.  IT IS PETITIONER'S WARRANTY OF
WORKMANLIKE SERVICE THAT IS COMPARABLE TO A MANUFACTURER'S WARRANTY OF
THE SOUNDNESS OF ITS MANUFACTURED PRODUCT.  THE SHIPOWNER'S ACTION IS
NOT CHANGED FROM ONE FOR A BREACH OF CONTRACT TO ONE FOR A TORT SIMPLY
BECAUSE RECOVERY MAY TURN UPON THE STANDARD OF THE PERFORMANCE OF
PETITIONER'S STEVEDORING SERVICE.  (FN8)    THE COURT OF APPEALS HAS
STATED THAT THE LIABILITY OF PETITIONER IN THIS CASE IS FOR THE
PERFORMANCE OF ITS OBLGATION TO STOW THE ROLLS ON BOARD SHIP "IN A
REASONABLY SAFE MANNER."  211 F.2D, AT 279.  THAT COURT ALSO HAS
AFFIRMED THE DECISION OF THE DISTRICT COURT WHICH WAS BASED UPON THE
VERDICT OF THE JURY THAT PETITIONER'S IMPROPER STOWAGE OF THE ROLLS
PRODUCED EITHER THE UNSEAWORTHINESS OF THE SHIP, OR THE HAZARDOUS
WORKING CONDITION WHICH IS THE BASIS FOR THE SHIPOWNER'S LIABILITY TO
PALAZZOLO. 

PETITIONER SUGGESTS THAT, BECAUSE THE SHIPOWNER HAD AN OBLIGATION TO
SUPERVISE THE STOWAGE AND HAD A RIGHT TO REJECT UNSAFE STOWAGE OF THE
CARGO AND DID NOT DO SO, IT NOW SHOULD BE BARRED FROM RECOVERY FROM THE
STEVEDORING CONTRACTOR OF ANY DAMAGE CAUSED BY THAT CONTRACTOR'S
UNCORRECTED FAILURE TO STOW THE ROLLS "IN A REASONABLY SAFE MANNER." 
ACCEPTING THE FACTS AND OBLIGATIONS AS ABOVE STATED, THE SHIPOWNER'S
PRESENT CLAIM AGAINST THE CONTRACTOR SHOULD NOT THEREBY BE DEFEATED. 
WHATEVER MAY HAVE BEEN THE RESPECTIVE OBLIGATIONS OF THE STEVEDORING
CONTRACTOR AND OF THE SHIPOWNER TO THE INJURED LONGSHOREMAN FOR PROPER
STOWAGE OF THE CARGO, IT IS CLEAR THAT, AS BETWEEN THEMSELVES, THE
CONTRACTOR, AS THE WARRANTOR OF ITS OWN SERVICES, CANNOT USE THE
SHIPOWNER'S FAILURE TO DISCOVER AND CORRECT THE CONTRACTOR'S OWN BREACH
OF WARRANTY AS A DEFENSE.  RESPONDENT'S FAILURE TO DISCOVER AND CORRECT
PETITIONER'S OWN BREACH OF CONTRACT CANNOT HERE EXCUSE THAT BREACH. 
(FN9) 

THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS AFFIRMED. 

FN1  44 STAT. 1424 ET SEQ., AS AMENDED, 33 U.S.C. SEC. 901 ET SEQ. 

FN2  "SEC.  33.(A)  IF ON ACCOUNT OF A DISABILITY OR DEATH FOR WHICH
COMPENSATION IS PAYABLE UNDER THIS ACT THE PERSON ENTITLED TO SUCH
COMPENSATION DETERMINES THAT SOME PERSON OTHER THAN THE EMPLOYER IS
LIABLE IN DAMAGES, HE MAY ELECT, BY GIVING NOTICE TO THE DEPUTY
COMMISSIONER IN SUCH MANNER AS THE SECRETARY OF LABOR MAY PROVIDE, TO
RECEIVE SUCH COMPENSATION OR TO RECOVER DAMAGES AGAINST SUCH THIRD
PERSON. 

"(B)  ACCEPTANCE OF SUCH COMPENSATION UNDER AN AWARD IN A
COMPENSATION ORDER FILED BY THE DEPUTY COMMISSIONER SHALL OPERATE AS AN
ASSIGNMENT TO THE EMPLOYER OF ALL RIGHT OF THE PERSON ENTITLED TO
COMPENSATION TO RECOVER DAMAGES AGAINST SUCH THIRD PERSON. 

     *         *   *         *         * 

"(I)  WHERE THE EMPLOYER IS INSURED AND THE INSURANCE CARRIER HAS
ASSUMED THE PAYMENT OF THE COMPENSATION, THE INSURANCE CARRIER SHALL BE
SUBROGATED TO ALL THE RIGHTS OF THE EMPLOYER UNDER THIS SECTION."  44
STAT. 1440, AS AMENDED, 33 U.S.C. SEC. 933(A)(B) AND (I). 

FOR PROCEDURE TO SECURE AN AWARD OF COMPENSATION, SEE SEC. 19, 44
STAT. 1435-1436, AS AMENDED, 33 U.S.C. SEC. 919. 

A LONGSHOREMAN, AFTER ACCEPTING COMPENSATION PAYMENTS FROM HIS
EMPLOYER WITHOUT AN AWARD, MAY SUE A THIRD-PARTY TORTFEASOR FOR HIS
INJURIES.  AMERICAN STEVEDORES V. PORELLO, 330 U.S. 446, 454-456.  IF
THE FACTS PERMIT, HE MAY RECOVER FROM THE SHIPOWNER FOR
UNSEAWORTHINESS, OR FOR NEGLIGENCE, OR BOTH.  POPE & TALBOT V. HAWN,
346 U.S. 406. 

FN3  IN THE INSTANT CASE, THE STEVEDORING CONTRACTOR, HOWEVER, HAS
RECEIVED A CONTRACTUAL QUID PRO QUO FROM THE SHIPOWNER FOR ASSUMING
RESPONSIBILITY FOR THE PROPER PERFORMANCE OF ALL OF THE LATTER'S
STEVEDORING REQUIREMENTS, INCLUDING THE DISCHARGE OF FORESEEABLE
DAMAGES RESULTING TO THE SHIPOWNER FROM THE CONTRACTOR'S IMPROPER
PERFORMANCE OF THOSE REQUIREMENTS.  SEE RESTATEMENT, CONTRACTS, SECS.
334, 330; BETHLEHEM SHIPBUILDING CORP. V. GUTRADT CO., 10 F.2D 769;
MOWBRAY V. MERRYWEATHER, (1895) 2 Q.B. 640 (C.A.). 

FN4  SEE SEC. 33(A) IN NOTE 2, SUPRA. 

FN5  THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE COMPENSATION
ACT CALLING FOR A CONTRARY INTERPRETATION.  OUR INTERPRETATION OF THAT
ACT IS SUPPORTED ALSO BY THAT OF THE NEW YORK WORKMEN'S COMPENSATION
ACT UPON WHICH IT IS MODELED.  THE LATTER ACT PROVIDES THAT THE -
"LIABILITY OF AN EMPLOYER FOR COMPENSATION PRESCRIBED BY THE LAST
PRECEDING SECTION SHALL BE EXCLUSIVE AND IN PLACE OF ANY OTHER
LIABILITY WHATSOEVER, TO SUCH EMPLOYEE, HIS PERSONAL REPRESENTATIVES,
HUSBAND, PARENTS, DEPENDENTS OR NEXT OF KIN, OR ANYONE OTHERWISE
ENTITLED TO RECOVER DAMAGES, AT COMMON LAW OR OTHERWISE ON ACCOUNT OF
SUCH INJURY OR DEATH  ...  ."  MCKINNEY'S N.Y. LAWS, WORKMEN'S
COMPENSATION LAW, SEC. 11. 

SEE WESTCHESTER LIGHTING CO. V. WESTCHESTER COUNTY CORP., 278 N.Y.
175, 15 N.E.2D 567.  OTHER STATE COURTS HAVE REACHED COMPARABLE RESULTS
AS TO EXCLUSIVE LIABILITY CLAUSES IN THEIR RESPECTIVE COMPENSATION
ACTS.  2 LARSON, WORKMEN'S COMPENSATION LAW, SECS. 76.00-76.44(A). 

FN6  WE DO NOT REACH THE ISSUE OF THE EXCLUSIONARY EFFECT OF THE
COMPENSATION ACT UPON A RIGHT OF ACTION OF A SHIPOWNER UNDER COMPARABLE
CIRCUMSTANCES WITHOUT RELIANCE UPON AN INDEMNITY OR SERVICE AGREEMENT
OF A STEVEDORING CONTRACTOR.  SEE BROWN V. AMERICAN-HAWAIIAN S.S. CO.,
211 F.2D 16, 18; STATES S.S. CO. V. ROTHSCHILD INTERNATIONAL
STEVEDORING CO., 205 F.2D 253; SLATTERY V. MARRA BROS., 186 F.2D 134
(N.J. STATUTE); UNITED STATES V. ROTHSCHILD INTERNATIONAL STEVEDORING
CO., 183 F.2D 181; AMERICAN MUTUAL LIABILITY INS. CO. V. MATTHEWS, 182
F.2D 322; AMERICAN DISTRICT TELEGRAPH CO. V. KITTLESON, 179 F.2D 946;
MCFALL V. COMPAGNIE MARITIME BELGE, 304 N.Y. 314, 107 N.E.2D 463.  AND
SEE GENERALLY, WEINSTOCK, THE EMPLOYER'S DUTY TO INDEMNIFY SHIPOWNERS
FOR DAMAGES RECOVERED BY HARBOR WORKERS, 103 U. OF PA. L. REV. 321
(1954). 

FN7  SEE BROWN V. AMERICAN-HAWAIIAN S.S. CO., SUPRA; CRAWFORD V. POPE
& TALBOT, SUPRA; MCFALL V. COMPAGNIE MARITIME BELGE, SUPRA; WEINSTOCK,
THE EMPLOYER'S DUTY TO INDEMNIFY SHIPOWNERS FOR DAMAGES RECOVERED BY
HARBOR WORKERS, SUPRA. 

FN8  SEE UNION STOCK YARDS CO. V. CHICAGO, B.&Q.R. CO., 196 U.S. 217;
BROWN V. AMERICAN-HAWAIIAN S.S. CO., SUPRA; CRAWFORD V. POPE & TALBOT,
SUPRA, AT 792-793; AMERICAN MUTUAL LIABILITY INS. CO. V. MATTHEWS,
SUPRA, AT 323-325; RICH V. UNITED STATES, SUPRA; BETHLEHEM SHIPBUILDING
CORP. V. GUTRADT CO., SUPRA; MOWBRAY V. MERRYWEATHER, SUPRA; DUNNE V.
UVALDE ASPHALT PAVING CO., 175 N.Y. 214, 67 N.E. 439. 

FN9  SEE BERTI V. COMPAGNIE DE NAVIGATION CYPRIEN FABRE, 213 F.2D
397; HASTORF CONTRACTING CO. V. OCEAN TRANSPORTATION CORP., 4 F.2D 583,
AFF'D, 4 F.2D 584; MOWBRAY V. MERRYWEATHER, SUPRA; BOSTON WOVEN HOSE
CO. V. KENDALL, 178 MASS. 232, 59 N.E. 657. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE  DOUGLAS,
AND MR. JUSTICE CLARK CONCUR, DISSENTING. 

THE PETITIONER, RYAN STEVEDORING COMPANY, IS AN EMPLOYER SUBJECT TO
THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT.  (FN1)
TO SUE THEIR EMPLOYERS FOR INJURIES RESULTING FROM NEGLIGENCE OF THE
EMPLOYER OR HIS EMPLOYEES.  THE ACT SUBSTITUTED FOR OLD TORT REMEDIES A
PRESCRIBED SCHEDULE OF COMPENSATION FOR EMPLOYEES' INJURIES OR DEATH
WHICH WAS DECLARED TO BE "EXCLUSIVE AND IN PLACE OF ALL OTHER LIABILITY
OF SUCH EMPLOYER TO THE EMPLOYEE  ...  AND ANYONE OTHERWISE ENTITLED TO
RECOVER DAMAGES FROM SUCH EMPLOYER AT LAW OR IN ADMIRALTY ON ACCOUNT OF
SUCH INJURY OR DEATH  ...  ."  I THINK THE COURT'S HOLDING TODAY BREAKS
PROMISES THE ACT MADE BOTH TO EMPLOYERS AND EMPLOYEES.  MY VIEW
REQUIRES A MORE DETAILED STATEMENT OF THE FACTS AND CIRCUMSTANCES OF
THIS CASE THAN APPEARS IN THE COURT'S OPINION. 

PALAZZOLO, AN EMPLOYEE OF RYAN, THE STEVEDORE, WAS INJURED WHILE
UNLOADING CARGO ON A SHIP OWNED BY THE RESPONDENT, PAN-ATLANTIC
STEAMSHIP CORPORATION.  AS AUTHORIZED BY SEC. 33 PALAZZOLO ELECTED TO
SUE THE SHIPOWNER RATHER THAN ACCEPT A COMPENSATION AWARD.  IN HIS
COMPLAINT HE CHARGED THAT HIS INJURY WAS SOLELY DUE TO THE NEGLIGENT
MANNER IN WHICH A NUMBER OF HEAVY ROLLS OF PAPER PULP HAD BEEN STOWED,
OR TO THE RESULTING UNSEAWORTHINESS OF THE VESSEL.  ONE OF THESE ROLLS
WEIGHING ABOUT 3,200 POUNDS HAD BROKEN LOOSE FROM ITS POSITION AND
SERIOUSLY INJURED PALAZZOLO.  THE SHIPOWNER ANSWERED DENYING THE
ALLEGATIONS OF NEGLIGENCE AND UNSEAWORTHINESS.  AT THE SAME TIME THE
SHIPOWNER FILED A COMPLAINT OF ITS OWN AGAINST RYAN, THE STEVEDORE,
ALLEGING THAT ANY INJURY PALAZZOLO HAD RECEIVED WAS SOLELY ATTRIBUTABLE
TO THE NEGLIGENT MANNER IN WHICH THE STEVEDORE'S EMPLOYEES HAD STOWED
THE ROLLS OF PULP.  ON THIS BASIS THE SHIPOWNER ASKED THE COURT TO
COMPEL THE STEVEDORE TO REIMBURSE THE SHIPOWNER FOR ANY JUDGMENT
PALAZZOLO MIGHT OBTAIN AGAINST THE SHIPOWNER.  PALAZZOLO'S CASE AGAINST
THE SHIPOWNER WAS SUBMITTED TO A JURY; THE SHIPOWNER'S CLAIM FOR
REIMBURSEMENT BY THE STEVEDORE WAS TRIED BY THE JUDGE LARGELY ON THE
SAME EVIDENCE AND ISSUES SUBMITTED TO THE JURY.  THE FACTS IN SUMMARY
WERE THESE: 

THE STEVEDORE'S EMPLOYEES LOADED THE ROLLS OF PULP IN GEORGETOWN,
SOUTH CAROLINA, AND FOUR OR FIVE DAYS LATER DIFFERENT EMPLOYEES OF THE
SAME STEVEDORE UNLOADED THEM IN NEW YORK.  THIS WAS PURSUANT TO A
GENERAL CONTRACT UNDER WHICH RYAN HAD AGREED TO PERFORM THE SHIPOWNER'S
STEVEDORING SERVICES ALONG THE ATLANTIC AND GULF COASTS.  THE TERMS OF
THE CONTRACT WERE SET OUT IN WRITTEN MEMORANDUMS PREPARED BY THE
SHIPOWNER AND AGREED TO BY THE STEVEDORE.  THESE MEMORANDUMS CONTAINED
A SIMPLE AGREEMENT TO DO THE STEVEDORING FOR AN AGREED COMPENSATION
PLUS, IN SOME CIRCUMSTANCES, COST OF THE STEVEDORE'S INSURANCE.  THERE
WAS NOTHING FURTHER FROM WHICH IT COULD POSSIBLY BE INFERRED THAT RYAN
WOULD BE UNDER A DUTY TO INDEMNIFY THE SHIPOWNER FOR LOSSES RESULTING
FROM ANY NEGLIGENT STOWAGE BY RYAN'S EMPLOYEES.  TO PREVENT INJURIES TO
CARGO, CREW AND LONGSHOREMEN, IT IS NECESSARY AND CUSTOMARY TO PUT SOME
KIND OF PROPS OR SUPPORTS UNDER OR AGAINST THE HEAVY PULP ROLLS TO KEEP
THEM STATIONARY UNTIL SUCH TIME AS THEY ARE UNLOADED.  SOME WITNESSES
TESTIFIED THAT A THICK, HEAVY, STRONG PIECE OF LUMBER CUT INTO A
SPECIAL WEDGE SHAPE, CALLED A "CHOCK," IS A SATISFACTORY KIND OF
SUPPORT UNDER THE ROLLS.  FAILURE TO USE "CHOCKS" MAY, AS TESTIFIED BY
ONE OF THE SHIP'S OFFICERS, PERMIT THE ROLLS TO RUN "RAMPANT."  OTHER
WITNESSES TESTIFIED THAT IN ADDITION TO CHOCKING, SAFETY REQUIRED THAT
WOODEN FLOORS BE PLACED BETWEEN THE LAYERS OF ROLLS.  ALL AGREED,
HOWEVER, THAT INDISCRIMINATE SCRAPS OF WOOD CALLED "DUNNAGE" ARE WHOLLY
INADEQUATE SUPPORTS.  ALL BUT ONE WITNESS WHO TESTIFIED SWORE THAT THE
ROLL THAT BROKE LOOSE AND INJURED PALAZZOLO IN NEW YORK HAD NOTHING BUT
"DUNNAGE" UNDER OR AGAINST IT.  THE LONE EXCEPTION WAS THE SHIP'S
OFFICER WHO SWORE THAT HE SAW WEDGES UNDER THE ROLLS IN NEW YORK.  NO
ONE TESTIFIED THAT WOODEN FLOORS WERE USED OR THAT THEY WERE MADE
AVAILABLE BY THE SHIPOWNER.  THERE WAS TESTIMONY THAT THIS SHIPOWNER
NEVER USED CHOCKS OR WOODEN FLOORING AND THAT IN NEW YORK THE
LONGSHOREMEN HAD LOOKED FOR CHOCKS BUT NONE WERE TO BE FOUND ON THE
SHIP.  AN OFFICER OF THE SHIPOWNER TESTIFIED THAT HE WAS ON THE SHIP IN
GEORGETOWN, SOUTH CAROLINA, WHILE IT WAS BEING LOADED; THAT IT WAS HIS
PRIMARY DUTY TO WATCH AND SEE THAT THE ROLLS WERE PROPERLY STOWED AND
CHOCKED; THAT HE DID WATCH; THAT CHOCKS WERE AVAILABLE AS PART OF THE
SHIP'S "GEAR"; THAT HE SAW CHOCKS, NOT DUNNAGE, PUT UNDER THE ROLLS;
THAT HAD ANY ATTEMPT BEEN MADE TO STOW THE ROLLS WITHOUT USING CHOCKS
HE WOULD HAVE TRIED TO STOP THE STEVEDORE; THAT "THE STEVEDORES AND THE
CHIEF OFFICER AND THE MATE ON WATCH GENERALLY COOPERATE AND WORK
TOGETHER IN THE STOWAGE IN THE OVERALL STOWAGE OF THE CARGO."  THUS THE
UNCONTRADICTED TESTIMONY OF THE SHIP'S OFFICER WAS SUFFICIENT TO
SUPPORT A FINDING THAT HE AS A REPRESENTATIVE OF THE SHIP ACTIVELY
JOINED IN STOWING THE ROLLS IN THE WAY IN WHICH THEY ARRIVED AT NEW
YORK.  AND OTHER EVIDENCE WAS SUFFICIENT TO SUPPORT A FINDING THAT THE
CARGO ARRIVED IN NEW YORK UNPROTECTED BY CHOCKS. 

THESE ISSUES WERE PROPERLY SUBMITTED TO THE JURY BY THE JUDGE IN HIS
CHARGE.  HE TOLD THE JURY THAT IT COULD NOT FIND THE SHIP UNSEAWORTHY
ON ACCOUNT OF THE WAY IN WHICH THE GOODS WERE UNLOADED IN NEW YORK. 
THE ISSUE THUS REVOLVED AROUND STOWAGE IN SOUTH CAROLINA WHICH WAS
ACTIVELY SUPERVISED BY THE SHIP'S OFFICERS.  THE COURT SUBMITTED TO THE
JURY THE QUESTIONS, AMONG OTHERS, AS TO WHETHER THE SHIP HAD AVAILABLE
FOR USE PROPER EQUIPMENT TO STOW THESE DANGEROUS ROLLS AND WHETHER THE
SHIP'S OFFICERS WERE GUILTY OF NEGLIGENT LOADING AND STOWAGE IN SOUTH
CAROLINA.  THE JURY GAVE PALAZZOLO A VERDICT FOR $75,000.  THE TRIAL
JUDGE FOUND IN DECIDING THE SHIPOWNER'S INDEMNITY CLAIM AGAINST THE
STEVEDORE THAT THE SHIP'S OFFICER PRESENT AT THE STOWAGE "DID NOT
PROPERLY PERFORM HIS ADMITTED DUTY TO SUPERVISE THE SAFE AND CAREFUL
LOADING OF THE VESSEL," ALTHOUGH HE HAD "AUTHORITY TO REMEDY THE
CONDITION OR HALT THE WORK."  111 F. SUPP. 505, 507.  HE CONCLUDED FROM
THIS AND OTHER FINDINGS (FN2) THAT THE SHIP AND THE STEVEDORE WERE
"JOINT-TORTFEASORS" AND THEREFORE DECLINED TO ORDER THE STEVEDORE TO
REIMBURSE THE SHIPOWNER. 

THE COURT OF APPEALS HELD THAT THERE WAS ADEQUATE EVIDENCE TO SUPPORT
THE JURY'S FINDING THAT THE SHIPOWNER WAS NEGLIGENT AND THAT THE SHIP
WAS UNSEAWORTHY BECAUSE OF THE DEFECTIVELY STOWED ROLLS.  THAT COURT
NEVERTHELESS HELD THAT THE STEVEDORE HAD TO REIMBURSE THE SHIPOWNER FOR
ITS LOSS DESPITE THE FINDINGS OF THE JURY AND THE TRIAL COURT THAT THE
LOSS OCCURRED BECAUSE OF THE SHIPOWNER'S NEGLIGENCE.  (FN3)  THE COURT
OF APPEALS JUSTIFIED IMPOSING PAYMENT OF THE $75,000 VERDICT ON THE
STEVEDORE ON THE GROUND THAT PALAZZOLO'S INJURY WAS DUE TO THE "SOLE,"
"PRIMARY," OR "ACTIVE" NEGLIGENCE OF THE STEVEDORE'S EMPLOYEES.  BUT
THE COURT'S SUGGESTION THAT THE INJURY COULD HAVE BEEN DUE TO THE
"SOLE" NEGLIGENCE OF THE STEVEDORE IS ANSWERED BY THE PART OF THE
COURT'S OPINION HOLDING THAT THERE WAS ADEQUATE EVIDENCE TO SUPPORT THE
JURY AND TRIAL COURT FINDINGS THAT THE SHIPOWNER ITSELF WAS NEGLIGENT. 
USE OF THE WORDS "PRIMARY" AND "ACTIVE" SEEMS TO INDICATE THAT THE
COURT OF APPEALS BELIEVED IT SHOULD LOOK AT THIS COLD RECORD AND FIND
FOR ITSELF WHETHER THE STEVEDORE'S EMPLOYEES OR THE SHIP'S EMPLOYEES
WERE GUILTY OF THIS TYPE OF NEGLIGENCE.  I DO NOT AGREE THAT THE COURT
OF APPEALS SHOULD MAKE SUCH FINDINGS.  AND IF THE COURT OF APPEALS'
CRYPTIC STATEMENTS ABOUT "SOLE," "ACTIVE" AND "PRIMARY" CAN BE
CONSIDERED AS UPSETTING ANY OF THE FINDINGS OF THE TRIAL COURT, I THINK
THE COURT OF APPEALS' ACTION SHOULD BE SET ASIDE AS CLEARLY ERRONEOUS. 
MCALLISTER V. UNITED STATES, 348 U.S. 19.    I HAVE SET OUT THE
EVIDENCE IN SOME DETAIL BECAUSE I THINK IT SHOWS ALMOST BEYOND DOUBT
THAT THIS STEVEDORING COMPANY IS BEING REQUIRED TO PAY A $75,000
VERDICT "ON ACCOUNT OF" INJURIES TO AN EMPLOYEE RECEIVED IN THE LINE OF
THAT EMPLOYEE'S DUTIES.  THIS IS AT LEAST $60,000 MORE THAN IT WOULD
HAVE TO PAY UNDER THE LONGSHOREMEN'S ACT.  THAT ACT WAS REVOLUTIONARY
IN ITS FIELD.  IT TOOK AWAY FROM LONGSHOREMEN THE RIGHT TO SUE THEIR
EMPLOYERS FOR NEGLIGENCE AND SUBSTITUTED A FIXED SCHEDULE OF
COMPENSATION FOR INJURIES REGARDLESS OF FAULT.  MANY WORKERS AND
EMPLOYERS OPPOSED THE COMPENSATION SCHEME.  THE WORKERS DEPLORED LOSS
OF THEIR CHANCE TO GET BIG TORT VERDICTS.  BUT CONGRESS THOUGHT IT BEST
TO GIVE THEM A MORE CERTAIN AND LESS EXPENSIVE RECOVERY, EVEN THOUGH
FAR LESS IN AMOUNT THAN SOME TORT RECOVERIES MIGHT BE.  MANY EMPLOYERS
PREFERRED TO TAKE THEIR CHANCE ON DEFEATING EMPLOYEES' DAMAGE SUITS
UNDER THE OLD TORT SYSTEM.  THE IDEA OF "LIABILITY WITHOUT FAULT" WAS
ABHORRENT TO THEM.  CONGRESS WEIGHED THE CONFLICTING INTERESTS OF
EMPLOYERS AND EMPLOYEES AND STRUCK WHAT WAS CONSIDERED TO BE A FAIR AND
CONSTITUTIONAL BALANCE.  (FN4)  INJURED EMPLOYEES THEREBY LOST THEIR
CHANCE TO GET LARGE TORT VERDICTS AGAINST THEIR EMPLOYERS, BUT GAINED
THE RIGHT TO GET A SURE THOUGH FREQUENTLY A MORE MODEST RECOVERY. 
HOWEVER, SEC. 33 DID LEAVE EMPLOYEES A CHANCE TO RECOVER EXTRA TORT
DAMAGES FROM THIRD PERSONS WHO NEGLIGENTLY INJURED THEM.  AND WHILE
CONGRESS IMPOSED ABSOLUTE LIABILITY ON EMPLOYERS, THEY WERE ALSO
ACCORDED COUNTERBALANCING ADVANTAGES.  THEY WERE NO LONGER TO BE
SUBJECTED TO THE HAZARDS OF LARGE TORT VERDICTS.  UNDER NO
CIRCUMSTANCES WERE THEY TO BE HELD LIABLE TO THEIR OWN EMPLOYEES FOR
MORE THAN THE COMPENSATION CLEARLY FIXED IN THE ACT.  THUS EMPLOYERS
WERE GIVEN EVERY REASON TO BELIEVE THEY COULD BUY THEIR INSURANCE AND
MAKE OTHER BUSINESS ARRANGEMENTS ON THE BASIS OF THE LIMITED
COMPENSATION ACT LIABILITY.  MORE THAN THAT, SEC. 33 OF THE ACT ALSO
PROVIDES THAT FOR COMPENSATION PAID AN EMPLOYEE AN EMPLOYER SHALL
HIMSELF BE REIMBURSED OR INDEMNIFIED OUT OF ANY MONEY COLLECTED AS A
RESULT OF AN EMPLOYEE'S CLAIM FOR NEGLIGENT INJURY BY A THIRD PERSON. 
BUT THE END RESULT HERE IS THAT THIS EMPLOYER IS ACTUALLY MULCTED IN
DAMAGES BECAUSE ITS EMPLOYEE SUCCESSFULLY PROSECUTED A THIRD-PARTY
ACTION.  LIABILITY IS THUS IMPOSED BECAUSE OF THE NEGLIGENCE OF THE
EMPLOYER'S OTHER EMPLOYEES.  THIS THE ACT FORBIDS.  WHETHER CALLED
"COMMON-LAW INDEMNITY," "CONTRIBUTION," "SUBROGATION," OR ANY OTHER
NAME, THE RESULT IS PRECISELY THE SAME.  THE EMPLOYER HAS TO PAY MORE
"ON ACCOUNT OF" AN INJURY TO HIS EMPLOYEE THAN CONGRESS SAID HE
SHOULD. 

I AGREE, OF COURSE, THAT IF THE EMPLOYER HERE HAD MADE A CONTRACT,
ORAL OR WRITTEN, AGREEING TO HOLD THIS SHIPOWNER HARMLESS OR TO
INDEMNIFY THE SHIPOWNER AGAINST LIABILITY FOR INJURIES TO PETITIONER'S
EMPLOYEES CAUSED BY THE SHIPOWNER'S NEGLIGENCE IN WHOLE OR IN PART, THE
CONTRACT WOULD HAVE BEEN VALID AND INDEMNITY COULD HAVE BEEN OBTAINED. 
FOR THE LONGSHOREMEN'S ACT DOES NOT FORBID EMPLOYERS UNDER IT TO MAKE
INDEPENDENT AGREEMENTS TO INDEMNIFY OTHERS.  BUT I THINK THERE IS NOT
THE SLIGHTEST SUPPORT IN THIS RECORD FOR A FINDING THAT ANY SUCH
CONTRACT WAS MADE.  NO SUCH ALLEGATION WAS MADE IN THE SHIPOWNER'S
COMPLAINT.  AND THE SHIPOWNER'S COUNSEL WAS CAREFUL TO STIPULATE DURING
THE COURSE OF THE TRIAL THAT HIS ACTION WAS NOT BASED ON A CONTRACT BUT
ON COMMON-LAW INDEMNITY.  (FN5)  I RECOGNIZE THAT COMMON-LAW INDEMNITY
MAY SOMETIMES ARISE WHERE TWO PEOPLE COMMIT A TORT OR WRONG WHICH HURTS
THE SAME PERSON.  AS BETWEEN WRONGDOERS THE COURTS WILL UNDER SOME
CIRCUMSTANCES IMPOSE THE TOTAL LIABILITY ON THE "PRIMARY" OR "ACTIVE"
WRONGDOER, APPARENTLY MEANING THE WRONGDOER THE COURT DEEMS TO BE THE
MOST NEGLIGENT.  BUT INDEMNITY SO IMPOSED IS PLAINLY "ON ACCOUNT OF"
THE NEGLIGENCE OF THE WRONGDOER OR HIS EMPLOYEES.  THE ACT EXPRESSLY
FORBIDS SUCH A RECOVERY BY "ANYONE" FROM A STEVEDORING COMPANY "ON
ACCOUNT" OF AN INJURY TO ONE OF ITS LONGSHOREMEN.  PLAINLY, COMMON-LAW
INDEMNITY SHOULD NOT BE USED TO FASTEN SUCH A LIABILITY ON A
STEVEDORING COMPANY.  I SUPPOSE IT IS FOR THIS REASON THAT THE COURT
PURPORTS TO FIND AN ACTUAL CONTRACT TO INDEMNIFY AND THUS DECIDES THE
CASE ON AN ISSUE NEITHER PRESENTED IN THE COMPLAINT NOR CONSIDERED BY
THE TRIAL COURT. 

A GENUINE CONTRACT AS DISTINGUISHED FROM A LIABILITY IMPOSED BY LAW,
SOMETIMES CALLED A "QUASI-CONTRACT," REQUIRED MUTUAL AGREEMENT OF THE
PARTIES.  IT IS FOR THIS REASON THAT THE COURTS HAVE FREQUENTLY SAID
THAT THE CARDINAL RULE IN THE INTERPRETATION OF CONTRACTS IS THAT THE
INTENTION OF THE PARTIES SHOULD BE ASCERTAINED AND ENFORCED.  (FN6)
AND COURTS DO NOT ORDINARILY STRETCH LANGUAGE IN ORDER TO FIND THAT ONE
PERSON HAS AGREED TO INDEMNIFY ANOTHER WHEN THE LATTER NEGLIGENTLY
HURTS SOMEONE.  (FN7)  SPECIAL CAUTION SHOULD BE USED IN CONSTRUING
CONTRACTS SO AS TO IMPOSE INDEMNITY LIABILITY ON COMPANIES NOT ENGAGED
IN THE BUSINESS OF WRITING INDEMNITY INSURANCE. 

I THINK THERE IS NOT A SHRED OF EVIDENCE TO SUPPORT THE COURT'S
INFERENCE THAT THIS STEVEDORE VOLUNTARILY AGREED TO GIVE UP THE LIMITED
LIABILITY WHICH THE LONGSHOREMEN'S ACT WAS DELIBERATELY DESIGNED TO
AFFORD.  THE COURT FINDS NOTHING TO SUPPORT SUCH A CONCLUSION EXCEPT
THAT THE STEVEDORE AGREED TO DO A STEVEDORING JOB.  FROM THAT THE COURT
IMPLIES THAT IT WAS TO DO A GOOD WORKMANLIKE JOB.  FROM THERE IT TAKES
THE NEXT STEP - WHICH SHOULD BE MORE DIFFICULT THAN IT APPEARS TO BE -
AND SAYS THAT THE STEVEDORING COMPANY ALSO AGREED TO GIVE UP ITS
IMMUNITY UNDER THE ACT AND PAY ANY JUDGMENTS THAT MIGHT BE RENDERED IN
FAVOR OF THE STEVEDORE'S EMPLOYEES AGAINST THE SHIPOWNER FOR ITS
NEGLIGENCE.  THE PRECISE SCOPE OF THE INDEMNITY WHICH THE COURT FINDS
THE STEVEDORE INTENDED TO ASSUME IS LEFT IN DOUBT.  ARE WE TO ASSUME
THAT THE STEVEDORE AGREED TO AN UNLIMITED LIABILITY FOR INDEMNITY
WITHOUT REGARD TO THE COMPARATIVE OR QUALITATIVE PROPORTIONS OF
NEGLIGENCE AS BETWEEN ITS EMPLOYEES AND THE EMPLOYEES OF THE
SHIPOWNER?  ARE WE EVEN TO ASSUME THAT THE STEVEDORE DELIBERATELY AND
INTENTIONALLY AGREED TO INDEMNIFY THE SHIPOWNER UPON A COURT'S FINDING
THAT THE STEVEDORE'S NEGLIGENCE WAS THE "SOLE," "PRIMARY," OR "ACTIVE"
CAUSE OF INJURY?  FINDINGS OF FACT BASED ON THESE STANDARDS ARE NEVER
EASY.  AND IN EFFORTS TO FORMULATE A COMMON-LAW INDEMNITY REMEDY COURTS
THEMSELVES HAVE GROPED CONSIDERABLY IN TRYING TO GIVE MEANING TO THE
TERMS "PRIMARY" AND "ACTIVE."  IS AN UNDERSTANDING OF THE DIFFERENT
NUANCES OF "SOLE," "PRIMARY" AND "ACTIVE" TO BE ATTRIBUTED TO
STEVEDORING COMPANIES IN JUDICIAL REWRITING OF WORK CONTRACTS SO AS TO
MAKE THEM INDEMNITY CONTRACTS?  SURELY BEFORE THIS COURT DETERMINES THE
EXISTENCE OF A CONTRACT AND THE SCOPE OF ITS COVERAGE THE CASE SHOULD
BE SENT BACK TO THE TRIAL COURT SO THAT THESE ISSUES COULD BE
DETERMINED AFTER A FULL HEARING ON THE FACTS.  THE ISSUES WERE NOT
TRIED IN THE DISTRICT COURT AND NOT TRIED IN THE COURT OF APPEALS.  THE
ISSUES HAVE NEVER BEEN TRIED.  IN AMERICAN STEVEDORES, INC. V. PORELLO,
330 U.S. 446, WE REMANDED A CASE TO THE TRIAL COURT FOR A HEARING ON
EVIDENCE AS TO THE SCOPE OF A CONTRACT OF INDEMNITY EVEN THOUGH IT WAS
WRITTEN.  HERE THERE IS NOT EVEN AN ORAL CONTRACT TO INDEMNIFY.  BEFORE
CREATING A CONTRACT IT MIGHT BE APPROPRIATE TO FOLLOW THE COURSE WE DID
IN PORELLO.  OR IS THE COURT REJECTING THIS PHASE OF PORELLO?  CF.
HALCYON LINES V. HAENN SHIP CEILING & REFITTING CORP., 342 U.S. 282,
284. 

FINALLY, THE COURT'S ACTION HERE NOT ONLY DEPRIVES THE EMPLOYER OF
HIS LIMITED LIABILITY, IT MAKES THE RIGHT OF EMPLOYEES TO RECOVER
DAMAGES FROM THIRD PARTIES A BARREN PROMISE.  SECTION 33 OF THE ACT
PROVIDES TWO WAYS FOR AN INJURED EMPLOYEE TO OBTAIN DAMAGES FROM A
NEGLIGENT THIRD PERSON:  (1) THE EMPLOYEE MAY ELECT TO WAIVE STATUTORY
COMPENSATION FROM HIS EMPLOYER AND SUE THE NEGLIGENT THIRD PERSON
DIRECTLY FOR DAMAGES.  (2) IF THE EMPLOYEE ACCEPTS A COMPENSATION AWARD
THE EMPLOYER MAY SUE THE THIRD PERSON AS STATUTORY ASSIGNEE OF THE
EMPLOYEE'S CLAIM, BUT ALL THE EMPLOYER RECOVERS IN EXCESS OF THE AMOUNT
OF THE COMPENSATION AWARD MUST BE PAID OVER TO THE EMPLOYEE.  PALAZZOLO
WAS ABLE TO MAKE AN ELECTION AND BRING HIS OWN SUIT BECAUSE HIS
EMPLOYER WAS FINANCIALLY INTERESTED IN THE OUTCOME OF HIS CASE AND
THEREFORE ADVANCED MONEY TO PALAZZOLO TO SUSTAIN HIM DURING HIS INJURY
UNTIL HIS CASE AGAINST THE THIRD PARTY COULD BE TRIED.  THE COURT TAKES
AWAY ALL INCENTIVE FOR EMPLOYERS TO FOLLOW THIS COURSE IN THE FUTURE. 
HEREAFTER STEVEDORING COMPANIES UNDER CIRCUMSTANCES LIKE THIS WILL KNOW
THAT IT IS DECIDEDLY TO THEIR ADVANTAGE THAT NO THIRD-PARTY ACTIONS BE
BROUGHT.  AN EMPLOYER LIKE RYAN WILL HEREAFTER KNOW THAT IF HE OR HIS
EMPLOYEE PROSECUTES A CLAIM AGAINST A THIRD PARTY AND OBTAINS A
JUDGMENT FOR THE EMPLOYEE'S BENEFIT, EVERY DIME OF THE JUDGMENT WILL
HAVE TO BE PAID BY THE EMPLOYER HIMSELF.  HUMAN NATURE AND HABITS BEING
WHAT THEY ARE, EMPLOYERS WILL NOT BE EAGER TO FINANCE SUITS AGAINST
THEMSELVES.  INJURED LONGSHOREMEN ARE NOT ORDINARILY WEALTHY ENOUGH TO
SUPPORT THEMSELVES WITHOUT WORK PENDING THE TRIAL OF LENGTHY LAWSUITS. 
YET IF AN EMPLOYEE ACCEPTS A COMPENSATION AWARD ONLY HIS EMPLOYER CAN
BRING SUIT AGAINST THE THIRD PERSON, AND THE EMPLOYER WILL NOT BE
OVERLY ANXIOUS TO SUE HIMSELF.  IT HAS BEEN SUGGESTED THAT WE CAN
EXPECT THE COURTS TO PROTECT EMPLOYEES UNDER SUCH CIRCUMSTANCES.  IN
OTHER WORDS, THE EMPLOYEE WHO HAS ACCEPTED COMPENSATION MUST GO INTO
COURT TO PROTECT HIMSELF AGAINST HIS EMPLOYER BEFORE HE GOES INTO COURT
TO PROTECT HIS CLAIM AGAINST A THIRD PARTY WHO HAS NEGLIGENTLY INJURED
HIM.  I CANNOT BELIEVE CONGRESS WOULD HAVE GIVEN EMPLOYERS SUCH
COMPLETE CONTROL OVER THESE SUITS IF IT HAD THOUGHT THE EMPLOYERS COULD
BE HELD LIABLE FOR EVERYTHING RECOVERED.  THE ACTUAL EFFECT OF THE
COURT'S HOLDING IS THIS: THE EMPLOYER AS AN ASSIGNEE OF AN EMPLOYEE'S
CLAIM WILL KNOW THAT IF HE WINS A LAWSUIT, HE LOSES A LAWSUIT.  THIS
KNOWLEDGE WILL NOT GIVE HIM A YEARNING ANXIETY TO FILE SUIT.  EVEN
THOUGH HE YIELDS TO THE CALL OF DUTY AND FILES THE LAWSUIT, HE MIGHT
NOT BE EXCEEDINGLY ANXIOUS TO WRITE A GOOD COMPLAINT.  HIS OTHER
PLEADINGS MIGHT NOT BE ALL THAT A ZEALOUS LAWYER WOULD DESIRE. 
ALTHOUGH THE EMPLOYER MUST PAY THE JUDGMENT, HIS WILL BE THE OPENING
ARGUMENT TO THE JURY.  AND WHEN THE LAST WORD IS SAID IN THE CLOSING
ARGUMENT, IT WILL BE MADE BY COUNSEL WHO KNOWS THAT IF HE PERSUADES THE
JURY TO GIVE HIS CLIENT A VERDICT HIS CLIENT WILL HAVE TO PAY IT.
COUNSEL WILL ALSO KNOW THAT IF HE HAPPENS TO LOSE THE CASE HIS CLIENT
WILL BE THE WINNER.  SUCH IS THE STATE OF AFFAIRS BROUGHT ABOUT BY THE
COURT'S HOLDING THAT THIS EMPLOYER INTENDED TO MAKE A CONTRACT WHICH
WOULD SUBJECT HIM TO THE VERY LIABILITY THAT CONGRESS HAD ABOLISHED. 

THERE HAS BEEN CONSIDERABLE DISAGREEMENT IN THIS COURT AND AMONG
OTHER COURTS ABOUT THREE OF OUR RECENT HOLDINGS, SEAS SHIPPING CO. V.
SIERACKI, 328 U.S. 85; HALCYON LINES V. HAENN SHIP CEILING AND
REFITTING CORP., 342 U.S. 282; AND POPE & TALBOT, INC. V. HAWN, 346
U.S. 406.  IN EACH OF THESE CASES A WORKER IN THE SAME POSITION AS
PALAZZOLO SUED A SHIPOWNER ALLEGING NEGLIGENCE AND UNSEAWORTHINESS. 
JUDGMENTS WERE OBTAINED AGAINST THE SHIPOWNERS.  WE HELD IN THE HALCYON
CASE THAT THE SHIPOWNER COULD NOT UNDER THE COMMON-LAW DOCTRINE OF
"CONTRIBUTION" FORCE INJURED EMPLOYEES' EMPLOYERS TO PAY PART OF THE
JUDGMENT AGAINST THE SHIPOWNER.  THE SIERACKI AND HALCYON CASES WERE
AFFIRMED IN POPE & TALBOT.  IN THAT CASE WE REFUSED TO PERMIT A
SHIPOWNER TO SHIFT PART OF HIS LOSS TO THE INJURED PERSON'S EMPLOYER ON
HIS ARGUMENT THAT THE EMPLOYER, WHO WAS UNDER THE LONGSHOREMEN'S ACT,
NEGLIGENTLY CONTRIBUTED TO THE INJURY.  WE REJECTED THAT CONTENTION ON
THE GROUND THAT IF ACCEPTED IT "WOULD FRUSTRATE THIS ACT'S PURPOSE TO
PROTECT EMPLOYERS WHO ARE SUBJECTED TO ABSOLUTE LIABILITY BY THE ACT." 
346 U.S., AT 412.  THE COURT'S OPINION TODAY PROVIDES A WAY UNDER WHICH
BY SIMPLE CHANGE OF WORDS AND REMEDIAL FORMULAS THE RESULTS REACHED IN
OUR THREE FORMER CASES CAN BE UNDERMINED.  EMPLOYEES LIKE SIERACKI AND
PALAZZOLO WILL FIND IT PRACTICALLY IMPOSSIBLE TO GET THEIR CASES FOR
INJURIES AGAINST THIRD PERSONS TRIED IN A COURT.  AND A SHIPOWNER WHO
WANTS TO SHIFT LIABILITY WHOLLY TO A STEVEDORING COMPANY CAN DO SO BY A
VERY SIMPLE METHOD.  HE CAN ALLEGE THAT THE STEVEDORING COMPANY
INTENTIONALLY MADE A CONTRACT AGREEING TO INDEMNIFY HIM UNDER
CIRCUMSTANCES LIKE THOSE IN THIS CASE; THAT ALLEGATION WILL BE
AUTOMATICALLY PROVED BY SIMPLY ESTABLISHING THE FACT THAT THE
STEVEDORING COMPANY CONTRACTED TO DO SOME WORK ON THE SHIP; THE RESULT
WILL BE THAT THE EMPLOYER IS WHOLLY DEPRIVED OF THE PROTECTION OF
LIMITED LIABILITY WHICH THE ACT WAS INTENDED TO PROVIDE.  AND WHILE
THIS WILL BE ACCOMPLISHED UNDER THE NAME OF "CONTRACT," IT WILL REALLY
BE ACHIEVED BECAUSE THE COURT HAS ANNOUNCED AS AN ABSOLUTE PRINCIPLE OF
LAW THAT WITHOUT REGARD TO WHETHER A STEVEDORING COMPANY INTENDS TO
AGREE TO INDEMNIFY, IT HAS SO AGREED IF IT AGREES TO DO A JOB.  THUS BY
INDIRECTION RIGHTS OF LONGSHOREMEN AND THEIR EMPLOYERS RECOGNIZED BY
THIS COURT IN SIERACKI, HALCYON, AND POPE & TALBOT ARE TAKEN AWAY.  IN
EFFECT THE SIERACKI CASE IS REJECTED. 

I WOULD REVERSE THIS CASE.    FN1  44 STAT. 1424, AS AMENDED, 33
U.S.C. SEC. 901. 

FN2 THE TRIAL COURT ALSO FOUND THAT THE SHIP'S OFFICER "IN THE
EXERCISE OF REASONABLE CARE SHOULD HAVE DISCOVERED AND CORRECTED" THE
DEFECTIVE STOWAGE CONDITIONS.  HAD THIS BEEN THE ONLY SHIP'S NEGLIGENCE
FOUND IT MIGHT BE MATERIAL IN CONSIDERING THE QUESTION OF COMMON-LAW
INDEMNITY.  BUT THIS COURT RELIES ON CONTRACTUAL INDEMNITY. 

FN3  EVEN THOUGH THE QUESTION OF UNSEAWORTHINESS WAS ALSO SUBMITTED
TO THE JURY, IT DEPENDED WHOLLY UPON WHETHER THERE WAS NEGLIGENT
STOWAGE.  UNDER THE UNDISPUTED TESTIMONY OF THE SHIP'S OFFICER THE JURY
AND JUDGE HAD TO FIND THAT THE SHIPOWNER WAS GUILTY OF NEGLIGENCE IF
THE STEVEDORE WAS.  MOREOVER, IF THE SHIPOWNER FAILED TO PROVIDE THE
PROPER GEAR IN THE WAY OF CHOCKS OR LUMBER, THE SHIPOWNER WAS GUILTY OF
NEGLIGENCE WHETHER THE STEVEDORE WAS OR NOT.  IN THIS CASE, THEREFORE,
THE SHIPOWNER'S NEGLIGENCE AND UNSEAWORTHINESS WERE ONE AND THE SAME
THING.  AND IF THE SHIPOWNER FAILED TO SUPPLY NEEDED GEAR IN THE WAY OF
CHOCKS OR LUMBER, IT WOULD HAVE BEEN PERMISSIBLE TO FIND THAT THIS WAS
THE "SOLE" CAUSE OF PALAZZOLO'S INJURIES. 

FN4  SEE CROWELL V. BENSON, 285 U.S. 22, 37-42; NEW YORK CENTRAL R.
CO. V. WHITE, 243 U.S. 188, 201-202.  CF. IVES V. SOUTH BUFFALO R. CO.,
201 N.Y. 271, 94 N.E. 431. 

FN5  "MR. BEHRENS (COUNSEL FOR SHIPOWNER):  THIS RIGHT OF INDEMNITY
ALLEGED BY PAN-ATLANTIC IS A RIGHT OF COMMON-LAW INDEMNITY RATHER THAN
A CONTRACTUAL PROVISION.  MY QUESTION IS HOW TO GET SUCH FACTS BEFORE
YOUR HONOR. 

"YOUR HONOR, THERE WAS A MOTION FOR SUMMARY JUDGMENT IN THIS CASE BY
RYAN, TO WHICH WAS ANNEXED THE EXCHANGE OF CORRESPONDENCE BETWEEN RYAN
AND PAN-ATLANTIC, WHICH IS A CONTRACT. 

"NOW, THE QUESTION IS WHETHER THOSE DOCUMENTS SHOULD NOW BE PUT IN
EVIDENCE BEFORE YOUR HONOR, OR WHETHER YOUR HONOR WILL INFER FROM THE
ABSENCE OF ANY PROOF ON THE SUBJECT THAT THERE WAS NO CONTRACTUAL
INDEMNITY. 

"MR. SCHWARTZ (COUNSEL FOR RYAN):  I THINK WE CAN AGREE AND STIPULATE
BETWEEN US THAT WHATEVER CONTRACTUAL ARRANGEMENT WAS MADE BETWEEN PAN
ATLANTIC AND RYAN, DID NOT CONTAIN ANY EXPRESSED PROVISION FOR
INDEMNITY, AND IT IS MR. BEHRENS' POSITION IN THIS MATTER THAT HIS
CLAIM OVER IS BASED SOLELY UPON AN IMPLIED RIGHT OF INDEMNITY, AS
IMPLIED IN LAW. 

"MR. BEHRENS:  THAT IS CORRECT. 

   *         *         *         *         * 

"MR. SCHWARTZ:  I WILL STIPULATE THAT THERE IS NO CONTRACTUAL
PROVISION FOR INDEMNITY. 

"MR. BEHRENS:  AND I WILL SO STIPULATE, IF THAT IS SATISFACTORY TO
YOUR HONOR. 

"THE COURT:  VERY WELL." 

FN6  SEE, E.G., MAURAN V. BULLUS, 16 PET. 528, 534; CANAL CO. V.
HILL, 15 WALL.  94, 99-100. 

FN7  SEE, E.G., CASES COLLECTED IN NOTE, 175 A.L.R. 8, 29-32. 
..END :





REX TRAILER CO., INC. V. UNITED STATES 350 U.S. 148 


NO. 46.  ARGUED DECEMBER 5, 1955 - DECIDED JANUARY 9, 1956 - 218 F.2D
880, AFFIRMED. 


IN AN ACTION BASED ON SEC. 26(B)(1) OF THE SURPLUS PROPERTY ACT OF
1944, THE UNITED STATES RECOVERED $2,000 ON EACH OF FIVE COUNTS OF A
COMPLAINT CHARGING PETITIONER WITH FRAUDULENT PURCHASES OF MOTOR
VEHICLES.  PETITIONER HAD PREVIOUSLY PLEADED NOLO CONTENDERE TO A 5
COUNT INDICTMENT ARISING OUT OF THE SAME FIVE TRANSACTIONS AND PAID
FINES AGGREGATING $25,000.  HELD: 

1.  THE RECOVERY UNDER SEC. 26(B)(1) IS CIVIL IN NATURE AND DID NOT
PUT PETITIONER TWICE IN JEOPARDY IN VIOLATION OF THE FIFTH AMENDMENT. 
PP. 148-152. 

2.  THE FAILURE OF THE GOVERNMENT TO ALLEGE SPECIFIC DAMAGES DID NOT
PRECLUDE THE RECOVERY HERE.  PP. 152-153. 

3.  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT THE MEASURE OF
RECOVERY FIXED BY CONGRESS IN THE ACT IS SO UNREASONABLE OR EXCESSIVE
THAT IT TRANSFORMED THE CIVIL REMEDY INTO A CRIMINAL PENALTY.  PP. 153
154. 

REX TRAILER CO., INC. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER CONTENDS THAT THIS ACTION BROUGHT BY THE GOVERNMENT TO
RECOVER $2,000 ON EACH OF FIVE COUNTS OF A COMPLAINT BASED ON SEC.
26(B)(1) OF THE SURPLUS PROPERTY ACT OF 1944 (FN1) PLACES IT TWICE IN
JEOPARDY IN VIOLATION OF THE FIFTH AMENDMENT.  IN AN EARLIER PROCEEDING
IT HAD PLEADED NOLO CONTENDERE TO A FIVE-COUNT INDICTMENT BOTTOMED ON
THE SAME FIVE TRANSACTIONS AND PAID FINES IN THE AGGREGATE AMOUNT OF
$25,000.  IN THE PRESENT CASE THE DISTRICT COURT GRANTED THE
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT, AND THE COURT OF APPEALS
AFFIRMED, 218 F.2D 880.  WE GRANTED CERTIORARI, 349 U.S. 937, TO
RESOLVE AN ASSERTED CONFLICT BETWEEN THE DECISIONS OF THE COURT OF
APPEALS.  (FN2) 

AT THE CLOSE OF WORLD WAR II THE GOVERNMENT WAS FACED WITH THE
PROBLEM OF DISPOSING OF VAST QUANTITIES OF SURPLUS WAR MATERIALS.  A
LARGE PART OF THIS PROPERTY, VALUED AT MANY BILLIONS OF DOLLARS, WAS
NEEDED TO SATISFY THE CIVILIAN DEMAND CAUSED BY WARTIME SHORTAGES IN
CONSUMER GOODS.  TO FACILITATE AND REGULATE THE ORDERLY DISPOSAL OF
THIS PROPERTY, CONGRESS PASSED THE SURPLUS PROPERTY ACT OF 1944, 58
STAT. 765.  THE STATED PURPOSES OF THIS STATUTE INCLUDED THE RE
ESTABLISHMENT OF RETURNING VETERANS IN BUSINESS, AGRICULTURAL, OR
PROFESSIONAL LIFE, THE DISCOURAGEMENT OF SPECULATION IN SURPLUS
PROPERTY, AND THE ELIMINATION OF UNUSUAL AND EXCESSIVE PROFITS TO
SPECULATORS.  THE CONCERN OF CONGRESS FOR RETURNING VETERANS IS
EMPHASIZED BY ITS 1946 AMENDMENT TO THE ACT, 60 STAT.  168, WHICH GAVE
VETERANS A PRIORITY FOR THE PURCHASE OF SURPLUS PROPERTY, SECOND ONLY
TO THAT OF THE FEDERAL GOVERNMENT, AND AUTHORIZED THE ADMINISTRATOR TO
ASSIGN THE HIGHEST PRIORITY TO VETERANS FOR THE PURCHASE OF CERTAIN
ITEMS.  THIS LEGISLATION THUS AFFORDED VETERANS AN OPPORTUNITY TO
PURCHASE GOODS NOT AVAILABLE ELSEWHERE AT A FAIR PRICE AND ON GOOD
CREDIT TERMS.  THE BENEFITS WERE OF GREAT VALUE TO THE MILLIONS OF MEN
AND WOMEN RETURNING TO CIVILIAN LIFE JUST AFTER THE WAR. 

WITH THIS BACKGROUND IN MIND WE MAY TURN TO THE FACTS OF THE PRESENT
CASE.  IN JUNE 1947 THE REX TRAILER COMPANY PURCHASED FIVE MOTOR
VEHICLES FROM THE WAR ASSETS ADMINISTRATION AT TINKER FIELD, OKLAHOMA. 
REX HAD ONLY A NONPRIORITY RIGHT OF PURCHASE UNDER THE SURPLUS PROPERTY
ACT; BUT, BY THE FRAUDULENT USE OF THE NAMES OF FIVE PERSONS POSSESSING
VETERAN PRIORITY RIGHTS, IT WAS ABLE TO PURCHASE THE VEHICLES. 
ADMITTEDLY, THE TERMS OF THE STATUTE WERE VIOLATED, BUT THE RECORD DOES
NOT SHOW PETITIONER'S GAIN FROM THE FRAUD.  THE UNITED STATES LIMITED
ITSELF TO THE RECOVERY OF THE SUM OF $2,000 FOR EACH OF THE FIVE OVERT
ACTS ALLEGED IN ITS COMPLAINT. 

PETITIONER'S SOLE CONTENTION IS THAT SEC. 26(B)(1) PROVIDES A
CRIMINAL PENALTY AND, HAVING ONCE BEEN CONVICTED AND FINED FOR THE
TRANSACTIONS IN QUESTION, IT CANNOT AGAIN BE SUBJECTED TO PUNISHMENT. 
THE ONLY QUESTION FOR OUR DECISION, THEN, IS WHETHER SEC.  26(B)(1) IS
CIVIL OR PENAL, FOR "CONGRESS MAY IMPOSE BOTH A CRIMINAL AND CIVIL
SANCTION IN RESPECT TO THE SAME ACT OR OMISSION; FOR THE DOUBLE
JEOPARDY CLAUSE PROHIBITS MERELY PUNISHING TWICE, OR ATTEMPTING A
SECOND TIME TO PUNISH CRIMINALLY, FOR THE SAME OFFENSE."  HELVERING V.
MITCHELL, 303 U.S. 391, 399. 

WE CONCLUDE THAT THE RECOVERY HERE IS CIVIL IN NATURE.  THE
GOVERNMENT HAS THE RIGHT TO MAKE CONTRACTS AND HOLD AND DISPOSE OF
PROPERTY, AND, FOR THE PROTECTION OF ITS PROPERTY RIGHTS, IT MAY RESORT
TO THE SAME REMEDIES AS A PRIVATE PERSON.  COTTON V. UNITED STATES, 11
HOW.  229.  LIQUIDATED DAMAGES ARE A WELL-KNOWN REMEDY, AND IN FACT
CONGRESS HAS UTILIZED THIS FORM OF RECOVERY IN NUMEROUS SITUATIONS.  IN
ALL BUILDING CONTRACTS, FOR EXAMPLE, CONGRESS HAS REQUIRED THE
INSERTION OF A LIQUIDATED-DAMAGE CLAUSE WHICH "SHALL BE CONCLUSIVE AND
BINDING UPON ALL PARTIES" WITHOUT PROOF OF "ACTUAL OR SPECIFIC DAMAGES
SUSTAINED  ...  ."  32 STAT. 326, 40 U.S.C. SEC. 269.  LIQUIDATED
DAMAGE PROVISIONS, WHEN REASONABLE, ARE NOT TO BE REGARDED AS
PENALTIES, UNITED STATES V. UNITED ENGINEERING & CONTRACTING CO., 234
U.S. 236, 241, AND ARE THEREFORE CIVIL IN NATURE. 

IN SEC. 26 OF THE SURPLUS PROPERTY ACT, CONGRESS HAS PROVIDED THREE
ALTERNATIVE REMEDIES.  THE FIRST PROVIDES A RECOVERY OF $2,000 PLUS
DOUBLE THE AMOUNT OF THE DAMAGE SUSTAINED; THE SECOND PERMITS A
RECOVERY "AS LIQUIDATED DAMAGES" OF TWICE THE CONSIDERATION AGREED
UPON; THE THIRD PERMITS THE GOVERNMENT TO RECOVER THE PROPERTY AND
RETAIN "AS LIQUIDATED DAMAGES" THE CONSIDERATION IT RECEIVED.  THESE
ALTERNATIVE REMEDIES ARE SET OUT IN THREE CONSECUTIVELY NUMBERED
SUBSECTIONS OF SEC. 26(B).  ALL THREE WERE RECOGNIZED AS CIVIL REMEDIES
BY CONGRESS BEFORE THE BILL WAS PASSED, (FN3) AND THE CONCLUSION IS
INESCAPABLE THAT EACH WAS OF THE SAME NATURE AND DESIGNED TO SERVE THE
SAME PURPOSE.  FURTHER, CONGRESS PROVIDED IN SEC. 26(D) THAT: "THE
CIVIL REMEDIES PROVIDED IN THIS SECTION SHALL BE IN ADDITION TO ALL
OTHER CRIMINAL PENALTIES AND CIVIL REMEDIES PROVIDED BY LAW." 

THE CASE OF UNITED STATES EX REL. MARCUS V. HESS, 317 U.S. 537,
INVOLVED A PROVISION OF THE FALSE CLAIMS ACT, R.S. SECS. 5438, 3490, 31
U.S.C. SEC. 231, ESSENTIALLY THE EQUIVALENT OF SEC. 26(B)(1).  (FN4)
IN MARCUS, AS HERE, THE DEFENDANT HAD PLEADED NOLO CONTENDERE IN AN
EARLIER CRIMINAL PROSECUTION BASED ON THE SAME TRANSACTION.  THIS COURT
REJECTED THE PETITIONER'S CONTENTION OF DOUBLE JEOPARDY AND HELD THAT
THE STATUTE INVOLVED WAS REMEDIAL AND NOT PENAL, SINCE IT WAS UNABLE TO
SAY THAT THE PROVISION FOR $2,000 PLUS DOUBLE DAMAGES WOULD "DO MORE
THAN AFFORD THE GOVERNMENT COMPLETE INDEMNITY FOR THE INJURIES DONE
IT."  317 U.S., AT 549.  IN CONCLUDING, IT RECOGNIZED THAT "THE
INHERENT DIFFICULTY OF CHOOSING A PROPER SPECIFIC SUM WHICH WOULD GIVE
FULL RESTITUTION WAS A PROBLEM FOR CONGRESS."  317 U.S., AT 552. 

IT IS INSISTED, HOWEVER, THAT THE FAILURE OF THE GOVERNMENT TO ALLEGE
SPECIFIC DAMAGES PRECLUDES RECOVERY HERE.  BUT THERE IS NO REQUIREMENT,
STATUTORY OR JUDICIAL, THAT SPECIFIC DAMAGES BE SHOWN, AND THIS WAS
RECOGNIZED BY THE COURT IN MARCUS.  (FN5)  THE GOVERNMENT'S RECOVERY
HERE IS COMPARABLE TO THE RECOVERY UNDER LIQUIDATED-DAMAGE PROVISIONS
WHICH FIX COMPENSATION FOR ANTICIPATED LOSS.  AS THIS COURT RECOGNIZED
IN PRIEBE & SONS V. UNITED STATES, 332 U.S. 407, 411-412, LIQUIDATED
DAMAGES "SERVE A PARTICULARLY USEFUL FUNCTION WHEN DAMAGES ARE
UNCERTAIN IN NATURE OR AMOUNT OR ARE UNMEASURABLE, AS IN THE CASE IN
MANY GOVERNMENT CONTRACTS  ...  ."  AND THE FACT THAT NO DAMAGES ARE
SHOWN IS NOT FATAL.  SECTION 26(B)(1) MERELY ACCOMPLISHES THE INTENDED
RESULT OF CONGRESS BY AUTHORIZING A SEPARATE PROCEEDING FOR THE
RECOVERY OF A LUMP SUM IN DAMAGES. 

IT IS OBVIOUS THAT INJURY TO THE GOVERNMENT RESULTED FROM THE REX
TRAILER COMPANY'S FRAUDULENT PURCHASE OF TRUCKS.  IT PRECLUDED BONA
FIDE SALES TO VETERANS, DECREASED THE NUMBER OF VEHICLES AVAILABLE TO
GOVERNMENT AGENCIES, AND TENDED TO PROMOTE UNDESIRABLE SPECULATION. 
(FN6)  THE DAMAGES RESULTING FROM THIS INJURY MAY BE DIFFICULT OR
IMPOSSIBLE TO ASCERTAIN, BUT IT IS THE FUNCTION OF LIQUIDATED DAMAGES
TO PROVIDE A MEASURE OF RECOVERY IN SUCH CIRCUMSTANCES.  ON THIS RECORD
IT CANNOT BE SAID THAT THE MEASURE OF RECOVERY FIXED BY CONGRESS IN THE
ACT IS SO UNREASONABLE OR EXCESSIVE THAT IT TRANSFORMED WHAT WAS
CLEARLY INTENDED AS A CIVIL REMEDY INTO A CRIMINAL PENALTY.  AFFIRMED. 

FN1  SECTION 26 OF THE SURPLUS PROPERTY ACT OF 1944, 58 STAT. 765,
780, 50 U.S.C. APP.  (1946 ED.) SEC. 1635, PROVIDED IN PERTINENT PART: 

"(B)  EVERY PERSON WHO SHALL USE OR ENGAGE IN OR CAUSE TO BE USED OR
ENGAGED IN ANY FRAUDULENT TRICK, SCHEME, OR DEVICE, FOR THE PURPOSE OF
SECURING OR OBTAINING, OR AIDING TO SECURE OR OBTAIN, FOR ANY PERSON
ANY PAYMENT, PROPERTY, OR OTHER BENEFITS FROM THE UNITED STATES OR ANY
GOVERNMENT AGENCY IN CONNECTION WITH THE DISPOSITION OF PROPERTY UNDER
THIS ACT; OR WHO ENTERS INTO AN AGREEMENT, COMBINATION, OR CONSPIRACY
TO DO ANY OF THE FOREGOING: 

"(1)  SHALL PAY TO THE UNITED STATES THE SUM OF $2,000 FOR EACH SUCH
ACT, AND DOUBLE THE AMOUNT OF ANY DAMAGE WHICH THE UNITED STATES MAY
HAVE SUSTAINED BY REASON THEREOF, TOGETHER WITH THE COSTS OF SUIT; OR: 

"(2)  SHALL, IF THE UNITED STATES SHALL SO ELECT, PAY TO THE UNITED
STATES, AS LIQUIDATED DAMAGES, A SUM EQUAL TO TWICE THE CONSIDERATION
AGREED TO BE GIVEN BY SUCH PERSON TO THE UNITED STATES OR ANY
GOVERNMENT AGENCY; OR: 

"(3)  SHALL, IF THE UNITED STATES SHALL SO ELECT, RESTORE TO THE
UNITED STATES THE PROPERTY THUS SECURED AND OBTAINED AND THE UNITED
STATES SHALL RETAIN AS LIQUIDATED DAMAGES ANY CONSIDERATION GIVEN TO
THE UNITED STATES OR ANY GOVERNMENT AGENCY FOR SUCH PROPERTY. 

   *         *         *         *         * 

"(D)  THE CIVIL REMEDIES PROVIDED IN THIS SECTION SHALL BE IN
ADDITION TO ALL OTHER CRIMINAL PENALTIES AND CIVIL REMEDIES PROVIDED BY
LAW." 

FN2  IN CONSIDERING WHETHER THE STATUTE OF LIMITATIONS CONTAINED IN
28 U.S.C. SEC.  2462 APPLIED TO SEC. 26(B)(1) OF THE SURPLUS PROPERTY
ACT, THE FIFTH CIRCUIT HELD SEC.  26(B)(1) TO BE A CIVIL REMEDY IN
UNITED STATES V. WEAVER, 207 F.2D 796, 797, AND THE SIXTH CIRCUIT HELD
IT TO BE PENAL IN UNITED STATES V. WITHERSPOON, 211 F.2D 858. 

FN3  IN REFERRING TO THESE PROVISIONS, THE SENATE COMMITTEE ON
MILITARY AFFAIRS DESCRIBED THEM AS PROVIDING FOR "THE CIVIL LIABILITY
OF PERSONS WHO ENGAGE IN FALSE, FRAUDULENT, OR FICTITIOUS ACTIVITIES,
OR CONCEAL OR MISREPRESENT MATERIAL FACTS, OR ACT WITH INTENT TO
DEFRAUD THE UNITED STATES  ...  .  THE UNITED STATES IS GIVEN THE
OPTION OF ELECTING AMONG THREE DIFFERENT MEASURES OF DAMAGES."  S. REP.
NO. 1057, 78TH CONG., 2D SESS. 13-14. 

FN4  THE FALSE CLAIMS ACT PROVIDES THAT THE DEFRAUDER "SHALL FORFEIT
AND PAY TO THE UNITED STATES THE SUM OF $2,000, AND, IN ADDITION,
DOUBLE THE AMOUNT OF DAMAGES WHICH THE UNITED STATES MAY HAVE SUSTAINED
BY REASON OF THE DOING OR COMMITTING SUCH ACT, TOGETHER WITH THE COSTS
OF SUIT; AND SUCH FORFEITURE AND DAMAGES SHALL BE SUED FOR IN THE SAME
SUIT."  UNITED STATES EX REL. MARCUS V. HESS, HOLDING THIS PROVISION TO
PROVIDE A COMPENSATORY CIVIL REMEDY, WAS DECIDED ON JANUARY 18, 1943. 
THE SURPLUS PROPERTY ACT, WHICH EMPLOYED VIRTUALLY IDENTICAL LANGUAGE
IN SEC. 26(B)(1), WAS ENACTED ON OCTOBER 3, 1944.  UNDER THESE
CIRCUMSTANCES IT WOULD BE VERY DIFFICULT TO SAY THAT THESE WORDS WHICH
PROVIDED A CIVIL REMEDY IN THE FALSE CLAIMS ACT WERE NOT INTENDED TO
PROVIDE THE SAME KIND OF REMEDY IN THE SURPLUS PROPERTY ACT. 

FN5  ON SEVERAL OF THE PROJECTS INVOLVED IN THE MARCUS CASE, FRAUD
WAS DISCOVERED BY THE GOVERNMENT IN TIME FOR PAYMENTS TO BE WITHHELD. 
AT TRIAL IN THE DISTRICT COURT DEFENDANTS URGED THAT THERE COULD BE NO
RECOVERY OF A PENALTY OR FORFEITURE IN THESE INSTANCES WHERE NO ACTUAL
DAMAGE COULD BE SHOWN.  THE DISTRICT COURT HELD THAT FAILURE TO SHOW
ACTUAL DAMAGE IN THESE INSTANCES WOULD NOT PRECLUDE RECOVERY UNDER THE
STATUTE.  UNITED STATES EX REL. MARCUS V. HESS, 41 F. SUPP. 197, 218. 
THE JUDGMENT OF THE DISTRICT COURT WAS AFFIRMED HERE.  SEE UNITED
STATES V. ROHLEDER, 157 F.2D 126, 129. 

FN6  IT SEEMS QUITE PROBABLE THAT THERE IS ALSO AN ELEMENT OF UNJUST
ENRICHMENT TO THE REX TRAILER COMPANY FROM ITS FRAUDULENT PURCHASES. 
THE RECORD IS SILENT ON THIS POINT AND WE HAVE NOT CONSIDERED IT IN
ARRIVING AT OUR DECISION, BUT THE FACT THAT REX WAS WILLING TO RESORT
TO FRAUD TO PURCHASE THE VEHICLES AT THE VETERAN'S PRICE STRONGLY
SUGGESTS AN UNFAIR GAIN FROM THE PURCHASES.  THE PRICE FOR SALES TO
PRIORITY PURCHASERS WAS FIXED BY REGULATIONS PUBLISHED IN 32 CFR (1946
SUPP.) SECS. 8302.8(D), 8302.11, WHICH PROVIDED:  "DISPOSAL AGENCIES
SHALL FIX THE FAIR VALUE AT WHICH PROPERTY SHALL BE ACQUIRED BY
PRIORITY CLAIMANTS.  SUCH A FAIR VALUE SHALL NOT BE GREATER THAN THE
LOWEST PRICE WHICH IS OFFERED TO ANY TRADE LEVEL AT THE TIME OF
ACQUISITION BY THE PRIORITY CLAIMANT, OR WHERE THE FAIR VALUE IS FIXED
AFTER EXAMINING COMPETITIVE BIDS, IT SHALL NOT BE GREATER THAN THE
LOWEST ACCEPTABLE BID." 
..END :

















LOCAL UNION NO. 25 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA V. NEW YORK, NEW HAVEN
& HARTFORD RAILROAD CO. 350 U.S. 155 


NO. 33.  ARGUED NOVEMBER 10, 1955 - DECIDED JANUARY 9, 1956 - 331 MASS.
720, 122 N.E.2D 759, REVERSED. 


AN INTERSTATE RAILROAD WHICH ENGAGED IN HAULING LOADED TRUCK-TRAILERS
"PIGGY-BACK" BROUGHT AN ACTION IN A STATE COURT TO ENJOIN A LABOR UNION
FROM CONDUCT WHICH INTERFERED WITH SUCH OPERATION AND WHICH ALLEGEDLY
VIOLATED THE LABOR MANAGEMENT RELATIONS ACT.  EMPLOYEES OF MOTOR
CARRIERS WITH WHICH THE UNION HAD COLLECTIVE BARGAINING AGREEMENTS HAD
BEEN PERSUADED BY AGENTS OF THE UNION TO REFRAIN FROM DELIVERING LOADED
TRAILERS TO THE RAILROAD FOR "PIGGY-BACKING."  THE UNION WAS NOT
CONCERNED IN ANY WAY WITH THE RAILROAD'S LABOR POLICY, NOR WAS THERE
ANY CLAIM THAT THE UNION INTERFERED IN ANY MANNER WITH THE RAILROAD'S
EMPLOYEES.  HELD:  THE CASE IS WITHIN THE EXCLUSIVE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD, THE RAILROAD MAY SEEK ANY REMEDY IT MAY
HAVE BEFORE SAID BOARD UNDER THE LABOR MANAGEMENT RELATIONS ACT, AND
THE STATE COURT HAD NO AUTHORITY TO ENJOIN THE UNION'S CONDUCT.  PP.
156-161. 

(A)  A RAILROAD SUBJECT TO THE RAILWAY LABOR ACT IS NOT PRECLUDED
FROM SEEKING THE AID OF THE NATIONAL LABOR RELATIONS BOARD IN
CIRCUMSTANCES UNRELATED TO THE RAILROAD'S RELATIONS WITH ITS OWN
EMPLOYEES.  PP. 158-161. 

(B)  THE QUESTION WHETHER THERE WAS A VIOLATION OF THE LABOR
MANAGEMENT RELATIONS ACT IS FOR THE NATIONAL LABOR RELATIONS BOARD TO
DETERMINE.  P. 161. 

(C)  EVEN IF THE UNION'S CONDUCT IS NOT PROHIBITED BY SEC. 8 OF THE
LABOR MANAGEMENT RELATIONS ACT, IT MAY COME WITHIN THE PROTECTION OF
SEC. 7, IN WHICH CASE THE STATE IS NOT FREE TO ENJOIN THE CONDUCT.  P.
161. 

(D)  WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, FOLLOWED.  P. 161. 

LOCAL UNION NO. 25 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA ET AL. V. NEW YORK, NEW
HAVEN & HARTFORD RAILROAD CO. 

CERTIORARI TO THE SUPERIOR COURT OF MASSACHUSETTS. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

RESPONDENT RAILROAD HAS, SINCE 1937, ENGAGED IN HAULING, BETWEEN
BOSTON, MASSACHUSETTS, AND OTHER POINTS IN NEW ENGLAND, LOADED TRAILERS
OF THE TYPE ORDINARILY HAULED OVER THE HIGHWAYS BY MOTOR CARRIERS. 
THIS OPERATION IS POPULARLY KNOWN AS "PIGGY-BACKING."  TRAILERS TO BE
SHIPPED FROM BOSTON ARE DELIVERED TO RESPONDENT'S FREIGHT YARD BY
EMPLOYEES OF THE MOTOR CARRIERS.  THERE THEY ARE DETACHED FROM THE
TRACTORS AND DRIVEN BY SPECIAL DEVICES ONTO RESPONDENT'S FLATCARS BY
EMPLOYEES OF NEW ENGLAND TRANSPORTATION CO., A MOTOR CARRIER, WHICH IS
A SUBSIDIARY OF RESPONDENT.  THE TRAILERS ARE SECURED TO THE FLATCARS
BY RESPONDENT'S EMPLOYEES. 

PETITIONERS ARE THE LOCAL TEAMSTERS UNION, ONE OF ITS OFFICERS AND
TWO OF ITS BUSINESS AGENTS.  THE UNION, BY VIRTUE OF COLLECTIVE
BARGAINING AGREEMENTS, REPRESENTS A LARGE NUMBER OF DRIVERS AND HELPERS
OF CERTAIN MOTOR CARRIERS WHICH ARE ENGAGED IN OVER-THE-ROAD HAULING OF
FREIGHT BETWEEN BOSTON AND OTHER POINTS IN NEW ENGLAND.  RESPONDENT'S
"PIGGY-BACKING" OPERATIONS HAVE STEADILY INCREASED OVER THE YEARS, WITH
A RESULTING LOSS OF WORK FOR TRUCK DRIVERS.  THE UNION SOUGHT, WITHOUT
SUCCESS, IN 1946, AND AGAIN IN 1949, AN AGREEMENT BY THE MOTOR CARRIERS
TO CEASE SHIPPING TRAILERS BY "PIGGY-BACK."  HAVING FAILED IN THESE AND
SUBSEQUENT NEGOTIATIONS TO DISSUADE THE TRUCKING COMPANIES FROM
PARTICIPATING IN "PIGGY-BACKING," PETITIONER UNION ASSIGNED PETITIONERS
NORTON AND MCCARTHY, BUSINESS AGENTS OF THE UNION, TO PATROL THE
ENTRANCE TO RESPONDENT'S YARD 5 WHERE TRAILERS ARE DELIVERED FOR "PIGGY
BACK" OPERATIONS. 

ON JULY 11, 12 AND 14, 1952, NORTON AND MCCARTHY STOPPED A NUMBER OF
TRUCK-DRAWN TRAILERS OWNED BY CARRIERS WITH WHOM PETITIONER UNION HAD
COLLECTIVE-BARGAINING AGREEMENTS AND PERSUADED THE DRIVERS TO REFRAIN
FROM DELIVERING THE TRAILERS TO RESPONDENT.  EMPLOYEES OF NEW ENGLAND
TRANSPORTATION CO. WERE PERSUADED BY NORTON AND MCCARTHY NOT TO LOAD
PREVIOUSLY DELIVERED TRAILERS ONTO RESPONDENT'S FLATCARS. 

RESPONDENT FILED SUIT IN THE SUPERIOR COURT OF SUFFOLK COUNTY,
MASSACHUSETTS, SEEKING PERMANENTLY TO ENJOIN PETITIONERS' CONDUCT AND,
IN ADDITION, DAMAGES IN THE SUM OF $100,000.  IN ITS AMENDED COMPLAINT
RESPONDENT ALLEGED, AMONG OTHER THINGS: 

"  ...  THE INDIVIDUAL RESPONDENTS AND THE RESPONDENT UNION PREVENTED
THE LOADING OF TRAILERS ON FLAT CARS AND ENFORCED A BOYCOTT AGAINST
PETITIONER AND A WITHHOLDING OF PATRONAGE AND SERVICES BY MOTOR TRUCK
CARRIERS AND SHIPPERS. 

     *  *         *         *         * 

"THE PETITIONER IS INFORMED AND BELIEVES THAT THE OBJECT OF THE ACTS
COMMITTED BY THE RESPONDENTS ON JULY 11, 12 AND 14, 1952, AS SET FORTH
IN PARAGRAPHS '8' AND '9' OF THIS COMPLAINT WAS TO FORCE OR REQUIRE THE
PETITIONER TO CEASE HANDLING AND TRANSPORTING THE PRODUCTS OF VARIOUS
SHIPPERS AND MOTOR CARRIERS WHO EMPLOY PETITIONER'S FLAT CAR SERVICE. 

     *         *         *         *         * 

"THE SAID ACTS WERE AND ARE INTENDED TO COMPEL SHIPPERS AND MOTOR
TRUCK CARRIERS TO ASSIGN WORK TO MEMBERS OF THE RESPONDENT UNION AND TO
THEREBY COMMIT AN UNFAIR LABOR PRACTICE IN VIOLATION OF THE NATIONAL
LABOR RELATIONS ACT; AND: 

"THE SAID ACTS WERE INTENDED TO AND DID, IN FACT, RESULT IN AN
UNLAWFUL SECONDARY BOYCOTT IN VIOLATION OF THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS, AND OF SECTION 8(B)(4)(A) OF THE NATIONAL LABOR
RELATIONS ACT; ...  ."  (FN1) 

AFTER HEARING, A PERMANENT INJUNCTION WAS GRANTED AND, ON APPEAL, THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS AFFIRMED.  331 MASS. 720, 122
N.E.2D 759.  WE GRANTED CERTIORARI TO DETERMINE WHETHER THE STATE COURT
HAD JURISDICTION TO ENJOIN THE PETITIONERS' CONDUCT OR WHETHER ITS
JURISDICTION HAD BEEN PRE-EMPTED BY THE AUTHORITY VESTED IN THE
NATIONAL LABOR RELATIONS BOARD.  348 U.S. 969. 

RESOLUTION OF THIS QUESTION DEPENDS UPON (1) WHETHER RESPONDENT, AS A
RAILROAD SUBJECT TO THE RAILWAY LABOR ACT, MAY AVAIL ITSELF OF THE
PROCESSES OF THE N.L.R.B., AND (2) IF RESPONDENT MAY DO SO, WAS IT
REQUIRED, IN THE CIRCUMSTANCES OF THIS CASE, TO SEEK RELIEF FROM THAT
TRIBUNAL RATHER THAN FROM THE STATE COURTS. 

THE MASSACHUSETTS COURT, ALTHOUGH RECOGNIZING THE PRINCIPLE THAT
STATE COURTS ORDINARILY LACK AUTHORITY TO ENJOIN ALLEGED UNFAIR LABOR
PRACTICES AFFECTING INTERSTATE COMMERCE, (FN2) DETERMINED THAT IT HAD
JURISDICTION IN THIS CONTROVERSY TO RESTRAIN PETITIONERS' CONDUCT
BECAUSE THE LABOR MANAGEMENT RELATIONS ACT'S DEFINITION OF "EMPLOYER,"
AS INTERPRETED BY THE N.L.R.B., CAST DOUBT UPON RESPONDENT'S ABILITY TO
OBTAIN RELIEF UNDER THAT ACT. 

THE ACT, IN ITS DEFINITION OF AN "EMPLOYER," EXPRESSLY EXCLUDES
ANYONE SUBJECT TO THE RAILWAY LABOR ACT.  61 STAT. 137, 29 U.S.C. SEC.
152(2).  (FN3)  IT IS OF COURSE TRUE THAT EMPLOYER-EMPLOYEE
RELATIONSHIPS OF RAILROADS SUCH AS RESPONDENT ARE GOVERNED BY THE
RAILWAY LABOR ACT, (FN4) WHICH WAS PASSED BEFORE EITHER THE NATIONAL
LABOR RELATIONS ACT OR THE LABOR MANAGEMENT RELATIONS ACT.  NEITHER OF
THE LATTER ACTS WAS INTENDED TO TREAD UPON THE GROUND COVERED BY THE
RAILWAY LABOR ACT.  IT IS CLEAR THAT NEITHER RAILROADS NOR THEIR
EMPLOYEES MAY CARRY THEIR GRIEVANCES WITH ONE ANOTHER TO THE N.L.R.B.
FOR RESOLUTION.  BUT IT DOES NOT FOLLOW FROM THIS THAT A RAILROAD IS
PRECLUDED FROM SEEKING THE AID OF THE BOARD IN CIRCUMSTANCES UNRELATED
TO ITS EMPLOYER-EMPLOYEE RELATIONS.  RESPONDENT ITSELF HAS MAINTAINED
THROUGHOUT THE ENTIRE COURSE OF THIS LITIGATION THAT THERE IS NO LABOR
DISPUTE WITH ITS EMPLOYEES.  THE MASSACHUSETTS COURT FOUND THAT
PETITIONER UNION WAS IN NO WAY CONCERNED WITH RESPONDENT'S LABOR
POLICY, NOR WAS THERE ANY CLAIM THAT THE UNION INTERFERED IN ANY MANNER
WHATSOEVER WITH THE RAILROAD EMPLOYEES. 

THE N.L.R.B. IS EMPOWERED TO ISSUE COMPLAINTS WHENEVER "IT IS CHARGED"
THAT ANY PERSON SUBJECT TO THE ACT IS ENGAGED IN ANY PROSCRIBED UNFAIR
LABOR PRACTICE.  SEC. 10(B).  UNDER THE BOARD'S RULES AND REGULATIONS
SUCH A CHARGE MAY BE FILED BY "ANY PERSON."  (FN5)  WE THINK IT CLEAR
THAT CONGRESS, IN EXCLUDING "ANY PERSON SUBJECT TO THE RAILWAY LABOR
ACT" FROM THE STATUTORY DEFINITION OF "EMPLOYER," CARVED OUT OF THE
LABOR MANAGEMENT RELATIONS ACT THE RAILROADS' EMPLOYER-EMPLOYEE
RELATIONSHIPS WHICH WERE, AND ARE, GOVERNED BY THE RAILWAY LABOR ACT. 
BUT WE DO NOT THINK THAT BY SO DOING CONGRESS INTENDED TO DIVEST THE
N.L.R.B. OF JURISDICTION OVER CONTROVERSIES OTHERWISE WITHIN ITS
COMPETENCE SOLELY BECAUSE A RAILROAD IS THE COMPLAINING PARTY. 
FURTHERMORE, SINCE RAILROADS ARE NOT EXCLUDED FROM THE ACT'S DEFINITION
OF "PERSON," THEY ARE ENTITLED TO BOARD PROTECTION FROM THE KIND OF
UNFAIR LABOR PRACTICE PROSCRIBED BY SEC. 8(B)(4)(A).  THIS
INTERPRETATION PERMITS THE HARMONIOUS EFFECTUATION OF THREE DISTINCT
CONGRESSIONAL OBJECTIVES:  (1) TO PROVIDE ORDERLY AND PEACEFUL
PROCEDURES FOR PROTECTING THE RIGHTS OF EMPLOYERS, EMPLOYEES AND THE
PUBLIC IN LABOR DISPUTES SO AS TO PROMOTE THE FULL, FREE FLOW OF
COMMERCE, AS EXPRESSED IN SEC. 1(B) OF THE LABOR MANAGEMENT RELATIONS
ACT; (2) TO MAINTAIN THE TRADITIONAL SEPARATE TREATMENT OF EMPLOYER
EMPLOYEE RELATIONSHIPS OF RAILROADS SUBJECT TO THE RAILWAY LABOR ACT;
AND (3) TO MINIMIZE "DIVERSITIES AND CONFLICTS LIKELY TO RESULT FROM A
VARIETY OF LOCAL PROCEDURES AND ATTITUDES TOWARD LABOR CONTROVERSIES." 
GARNER V. TEAMSTERS UNION, 346 U.S. 485, 490. 

RESPONDENT CONTENDS, HOWEVER, THAT EVEN IF RAILROADS MAY SEEK THE AID
OF THE N.L.R.B., IT WAS NOT REQUIRED TO DO SO IN THIS CASE BECAUSE
PETITIONERS' CONDUCT WAS NEITHER PROTECTED BY SEC. 7 NOR PROHIBITED BY
SEC. 8(B)(4) OF THE LABOR MANAGEMENT RELATIONS ACT.  AS WE NOTED
EARLIER, RESPONDENT'S AMENDED COMPLAINT ALLEGED VIOLATIONS OF THE ACT. 
WHETHER THE ACT WAS VIOLATED OR WHETHER, AS RESPONDENT NOW CLAIMS, IT
WAS NOT, IS, OF COURSE, A QUESTION FOR THE BOARD TO DETERMINE.  EVEN IF
PETITIONERS' CONDUCT IS NOT PROHIBITED BY SEC. 8 OF THE ACT, IT MAY
COME WITHIN THE PROTECTION OF SEC. 7, IN WHICH CASE THE STATE WAS NOT
FREE TO ENJOIN THE CONDUCT.  IN ANY EVENT, THE BOARD'S JURISDICTION IN
THE CIRCUMSTANCES OF THIS CASE IS CLEARLY SETTLED BY THIS COURT'S
RECENT DECISION IN WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, 481: 

"BUT WHERE THE MOVING PARTY ITSELF ALLEGES UNFAIR LABOR PRACTICES,
WHERE THE FACTS REASONABLY BRING THE CONTROVERSY WITHIN THE SECTIONS
PROHIBITING THESE PRACTICES, AND WHERE THE CONDUCT, IF NOT PROHIBITED
BY THE FEDERAL ACT, MAY BE REASONABLY DEEMED TO COME WITHIN THE
PROTECTION AFFORDED BY THAT ACT, THE STATE COURT MUST DECLINE
JURISDICTION IN DEFERENCE TO THE TRIBUNAL WHICH CONGRESS HAS SELECTED
FOR DETERMINING SUCH ISSUES IN THE FIRST INSTANCE." 

WE THEREFORE HOLD THAT THE QUESTION PRESENTED BY THE FACTS IN THIS
CASE BRINGS IT WITHIN THE JURISDICTION OF THE N.L.R.B., WHOSE
JURISDICTION IS EXCLUSIVE, AND THE RESPONDENT RAILROAD MAY SEEK ANY
REMEDY IT MAY HAVE BEFORE SAID BOARD. 

THE JUDGMENT IS REVERSED. 

FN1  SECTION 8(B)(4)(A) PROVIDES: 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

     *         *         *    *         * 

"(4)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS:  (A) FORCING OR
REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR
EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON; ...  ."  61 STAT. 141, 29 U.S.C. SEC.
158(B)(4)(A). 

FN2  GARNER V. TEAMSTERS UNION, 346 U.S. 485; WEBER V. ANHEUSER
BUSCH, INC., 348 U.S. 468. 

FN3  "SEC.  2.  WHEN USED IN THIS ACT: 

     *      *         *         *         * 

"(2)  THE TERM 'EMPLOYER' INCLUDES ANY PERSON ACTING AS AN AGENT OF
AN EMPLOYER, DIRECTLY OR INDIRECTLY, BUT SHALL NOT INCLUDE THE UNITED
STATES OR ANY WHOLLY OWNED GOVERNMENT CORPORATION, OR ANY FEDERAL
RESERVE BANK, OR ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
CORPORATION OR ASSOCIATION OPERATING A HOSPITAL, IF NO PART OF THE NET
EARNINGS INURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER OR
INDIVIDUAL, OR ANY PERSON SUBJECT TO THE RAILWAY LABOR ACT, AS AMENDED
FROM TIME TO TIME, OR ANY LABOR ORGANIZATION (OTHER THAN WHEN ACTING AS
AN EMPLOYER), OR ANYONE ACTING IN THE CAPACITY OF OFFICER OR AGENT OF
SUCH LABOR ORGANIZATION." 

FN4 44 STAT. 577, AS AMENDED, 45 U.S.C. SEC. 151. 

FN5  29 CFR, 1955 CUM. SUPP., SEC. 102.9.  THE ACT DEFINES "PERSON"
AS FOLLOWS: 

"SEC. 2.  WHEN USED IN THIS ACT: 

"(1)  THE TERM 'PERSON' INCLUDES ONE OR MORE INDIVIDUALS, LABOR
ORGANIZATIONS, PARTNERSHIPS, ASSOCIATIONS, CORPORATIONS, LEGAL
REPRESENTATIVES, TRUSTEES, TRUSTEES IN BANKRUPTCY, OR RECEIVERS." 
..END :























SECRETARY OF AGRICULTURE V. UNITED STATES 350 U.S. 162 


NOS. 6 AND 11.  ARGUED OCTOBER 12, 1955 - DECIDED JANUARY 9, 1956 - 119
F. SUPP. 846, REVERSED. 


THE INTERSTATE COMMERCE COMMISSION ISSUED AN ORDER APPROVING TARIFF
REGULATIONS PROVIDING THAT RAILROADS WILL BE RESPONSIBLE FOR CLAIMS FOR
PHYSICAL DAMAGE TO SHELL EGGS CARRIED BY THEM ONLY TO THE EXTENT THAT
SUCH DAMAGE IS IN EXCESS OF SPECIFIED PERCENTAGES OR "TOLERANCES."  THE
VALIDITY OF THE REGULATIONS WAS CHALLENGED ON THE GROUND THAT THEY
VIOLATED SEC. 20(11) OF THE INTERSTATE COMMERCE ACT, WHICH PROVIDES
THAT ANY CARRIER SUBJECT TO THE ACT RECEIVING PROPERTY FOR INTERSTATE
TRANSPORTATION "SHALL BE LIABLE  ...  FOR ANY LOSS, DAMAGE, OR INJURY
TO SUCH PROPERTY CAUSED BY IT" AND FORBIDS ANY LIMITATION OF, OR
EXEMPTION FROM, SUCH LIABILITY.  THE COMMISSION HAD CONCLUDED THAT,
SINCE THE TOLERANCES REPRESENTED PRE-SHIPMENT AND UNAVOIDABLE DAMAGE
NOT "CAUSED BY" THE RAILROADS, THEIR DEDUCTION FROM DAMAGE CLAIMS COULD
NOT LIMIT THE RAILROADS' PROPER LIABILITY.  HELD:  THE COMMISSION'S
FINDINGS WERE INSUFFICIENT TO SUPPORT THIS CONCLUSION OR TO ESTABLISH
THAT THE TOLERANCES PERMITTED BY ITS ORDER WILL NOT OPERATE TO LIMIT
CARRIER LIABILITY IN VIOLATION OF SEC. 20(11), AND THE COMMISSION'S
ORDER MUST BE SET ASIDE.  PP. 163-173. 

SECRETARY OF AGRICULTURE V. UNITED STATES ET AL. 

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH.* 

*TOGETHER WITH NOS. 7 AND 12, UTAH POULTRY & FARMERS COOPERATIVE ET
AL. V. UNITED STATES ET AL., ALSO ON APPEALS FROM THE SAME COURT. 

OPINION OF THE COURT BY MR. JUSTICE HARLAN, ANNOUNCED BY MR. JUSTICE
CLARK. 

THESE CASES INVOLVE THE VALIDITY OF RAILROAD TARIFF PROVISIONS
EXONERATING THE APPELLEE RAILROADS FROM LIABILITY FOR STATED
PERCENTAGES OF DAMAGE TO SHELL EGGS SHIPPED OVER THEIR LINES.  THE
CASES COME TO US BY DIRECT APPEAL (FN1) FROM A JUDGMENT OF A THREE
JUDGE DISTRICT COURT IN UTAH, (FN2) WHICH DISMISSED AN ACTION BROUGHT
TO SET ASIDE AND ENJOIN AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
(FN3) APPROVING SUCH TARIFF PROVISIONS.  WE NOTED PROBABLE JURISDICTION
ON OCTOBER 14, 1954.  (FN4) 

CLAIMS AGAINST THE RAILROADS FOR DAMAGE TO EGG SHIPMENTS STEADILY AND
RAPIDLY INCREASED IN THE YEARS FOLLOWING 1939, PARTICULARLY ON
SHIPMENTS TO THE EASTERN SEABOARD AREA.  (FN5)  IN 1950 THE RAILROADS,
BELIEVING THAT BECAUSE OF THE DIFFICULTIES OF PROOF THEY WERE BEING
EXPOSED TO LIABILITY FOR DAMAGE FOR WHICH THEY WERE NOT RESPONSIBLE,
FILED WITH THE COMMISSION PROPOSED TARIFF PROVISIONS SIMILAR IN FORM TO
THOSE APPROVED BY THE ORDER UNDER REVIEW.  AFTER AN INVESTIGATION AND
HEARING, (FN6) THE COMMISSION CONCLUDED THAT EGG SHIPMENTS ORDINARILY
CONTAINED SUBSTANTIAL AMOUNTS OF DAMAGE FOR WHICH THE RAILROADS WERE
NOT RESPONSIBLE - NAMELY, (A) DAMAGE EXISTING PRIOR TO SHIPMENT, AND
(B) DAMAGE UNAVOIDABLY ARISING IN TRANSIT BECAUSE OF THE INHERENTLY
FRAGILE NATURE OF EGGS.  THE AVERAGE AMOUNT OF SUCH DAMAGE WAS FOUND TO
BE 3% FOR EGGS PACKAGED AT RAILHEAD POINTS AND 5% FOR THOSE PACKAGED
ELSEWHERE.  ON THE BASIS OF THIS FINDING, THE COMMISSION, ALTHOUGH
REJECTING THE HIGHER-PERCENTAGE PROVISIONS PROPOSED BY THE RAILROADS,
(FN7) FOUND REASONABLE - AND HENCE AUTHORIZED THE RAILROADS TO INCLUDE
IN THEIR TARIFF SCHEDULES (FN8) - THE FOLLOWING TOLERANCE PROVISION: 

"ON EGGS PLACED IN PACKAGES AT RAIL POINT OF ORIGIN OF THE SHIPMENT,
NO CLAIM SHALL BE ALLOWED WHERE THE PHYSICAL DAMAGE TO THE EGGS AT
DESTINATION DOES NOT EXCEED 3% OF THE CONTENTS OF THE PACKAGES
CONTAINING DAMAGED EGGS.  WHERE DAMAGE EXCEEDS 3%, CLAIMS SHALL BE
ALLOWED FOR ALL DAMAGE IN EXCESS OF 3%, IF INVESTIGATION DEVELOPS
CARRIER LIABILITY. 

"EXCEPTION. - WHERE BONA FIDE CERTIFICATES OF FEDERAL OR STATE EGG
INSPECTION AGENCIES SHOWING EXTENT OF PHYSICAL DAMAGE TO EGGS
DETERMINED AT RAIL POINT OF ORIGIN OF THE SHIPMENT IMMEDIATELY PRIOR TO
TENDER FOR RAIL TRANSPORTATION INDICATE THE ACTUAL SHELL DAMAGE TO BE
OTHER THAN 2%, THE PERCENTAGE OF ACTUAL DAMAGE AS SHOWN ON SUCH
CERTIFICATES, PLUS 1% SHALL BE USED IN LIEU OF 3% SPECIFIED IN THIS

AN OTHERWISE IDENTICAL PROVISION APPLICABLE TO "EGGS PLACED IN
PACKAGES AT POINTS OTHER THAN THE RAIL POINT OF ORIGIN" WAS DETERMINED
TO BE REASONABLE WITH A TOLERANCE OF 5%. 

IT IS CLAIMED THAT THESE TARIFF PROVISIONS VIOLATE SEC. 20(11) OF THE
INTERSTATE COMMERCE ACT, 24 STAT. 386, AS AMENDED, 49 U.S.C. SEC.
20(11), WHICH PROVIDES THAT ANY COMMON CARRIER SUBJECT TO THE ACT
RECEIVING PROPERTY FOR INTERSTATE TRANSPORTATION "SHALL BE LIABLE  ...
FOR ANY LOSS, DAMAGE, OR INJURY TO SUCH PROPERTY CAUSED BY IT  ...  ,
AND NO CONTRACT, RECEIPT, RULE, REGULATION, OR OTHER LIMITATION OF ANY
CHARACTER WHATSOEVER SHALL EXEMPT SUCH COMMON CARRIER  ...  FROM THE
LIABILITY HEREBY IMPOSED  ...  ." 

THE COMMISSION AND THE COURT BELOW (ONE JUDGE DISSENTING) HELD THAT
THE TOLERANCE PROVISIONS DID NOT VIOLATE SEC. 20(11) BECAUSE THE PRE
SHIPMENT AND UNAVOIDABLY-CAUSED DAMAGE REPRESENTED BY THE TOLERANCES
WAS NOT DAMAGE "CAUSED BY" THE RAILROADS; HENCE THE TOLERANCE
REGULATIONS, IN PROVIDING A MEANS FOR DETERMINING THE EXTENT OF SUCH
DAMAGE, DID NOT LIMIT THE RAILROADS' PROPER LIABILITY, BUT OPERATED
SIMPLY TO ELIMINATE FROM DAMAGE CLAIMS THE DAMAGE FOR WHICH THE
RAILROADS WERE NOT LIABLE. 

THE APPELLANTS ATTACK THE PROVISIONS ON SIX PRINCIPAL GROUNDS:  (1)
THE COMMISSION HAS NO JURISDICTION OVER DAMAGE CLAIMS AND HENCE NO
POWER TO PRESCRIBE REGULATIONS GOVERNING THEIR DISPOSITION; (2)
TOLERANCES BASED ON AVERAGES NECESSARILY EMBRACE A FORBIDDEN LIMITATION
OF LIABILITY SINCE, BY DEFINITION, SOME SHIPMENTS WILL CONTAIN LESS
THAN THE "AVERAGE" DAMAGE, RESULTING IN THESE CASES IN THE CARRIER
BEING RELIEVED OF ITS FULL LIABILITY; (3) THE RAILROADS ARE LIABLE FOR
IN-TRANSIT DAMAGE EVEN THOUGH "UNAVOIDABLE"; (FN9) (4) THE AVERAGES
FOUND BY THE COMMISSION ARE NOT SUPPORTED BY THE EVIDENCE; (5) THE
APPROVAL OF UNIFORM NATION-WIDE TOLERANCES WAS UNREASONABLE IN LIGHT OF
THE WIDE DIFFERENCES IN THE EGG-DAMAGE EXPERIENCE OF CONSIGNEES LOCATED
IN DIFFERENT AREAS OF THE COUNTRY; (FN10) AND (6) THE CONCLUSION THAT
THE TOLERANCES DO NOT LIMIT LIABILITY IS NOT SUPPORTED BY THE
COMMISSION'S FINDINGS.  OUR AGREEMENT WITH THIS LAST CONTENTION MAKES
IT UNNECESSARY FOR US TO CONSIDER THE OTHER ARGUMENTS, AND WE MAY
ASSUME, THOUGH WE DO NOT DECIDE, THAT THE TARIFF PROVISIONS ARE NOT
INVALID FOR ANY OF THE OTHER REASONS ASSIGNED. 

THE COMMISSION'S JUSTIFICATION OF THE TOLERANCE REGULATIONS AS NOT
LIMITING LIABILITY RESTS UPON TWO DISTINCT PROPOSITIONS:  (1) THAT
THERE IS PRESENT IN EVERY CASE OF EGGS AT DESTINATION PHYSICAL DAMAGE
NOT "CAUSED BY" THE RAILROADS - AND HENCE FOR WHICH THEY ARE NOT LIABLE
UNDER SEC. 20(11) - IN THE AMOUNT OF THE SPECIFIED PERCENTAGES; AND (2)
THAT THE DEDUCTION OF THOSE PERCENTAGES FROM DAMAGE CLAIMS OPERATES
MERELY TO PREVENT LIABILITY FOR SUCH DAMAGE FROM BEING IMPROPERLY
IMPOSED ON THE RAILROADS.  WE SHALL ACCEPT FOR PURPOSES OF DISCUSSION
THE VALIDITY OF THE FIRST PROPOSITION.  THE INFIRMITY WE FIND IN THE
COMMISSION'S REPORT IS RATHER THAT THE SECOND PROPOSITION IS SIMPLY
ASSUMED AND IS SUPPORTED BY NO FINDINGS UPON WHICH WE CAN SAY THAT THE
COMMISSION'S CONCLUSION WAS REASONABLY BASED.  SUCH A CONCLUSION BEING
ESSENTIAL TO REMOVE THE TOLERANCE PROVISIONS FROM THE PROHIBITION OF
SEC. 20(11), THE LACK OF FINDINGS NECESSARY TO JUSTIFY THAT CONCLUSION
RENDERS INVALID THE COMMISSION'S ORDER APPROVING THE TOLERANCE
REGULATIONS.  SEE FLORIDA V. UNITED STATES, 282 U.S. 194, 215.  INDEED,
SO FAR DOES THE REPORT FAIL TO SUPPORT THE COMMISSION'S CONCLUSION THAT
IT TENDS AFFIRMATIVELY TO SUPPORT PRECISELY THE OPPOSITE CONCLUSION -
NAMELY, THAT THE TOLERANCES DO UNLAWFULLY LIMIT LIABILITY.  WE KNOW OF
NO BETTER WAY TO ILLUSTRATE THE INADEQUACIES OF THE REPORT THAN BY
SHOWING THE MANNER IN WHICH THE INFERENCES RAISED BY IT AND UNANSWERED
BY THE COMMISSION WOULD, IF ACCEPTED, LEAD TO THAT OPPOSING
CONCLUSION. 

IN THE FIRST PLACE, WE ARE UNABLE TO DISCOVER IN THE REPORT ANY
SHOWING THAT DAMAGE CLAIMS INCLUDE - OR SHOULD REASONABLY BE DEEMED TO
INCLUDE - THE EXEMPT DAMAGE WHICH IS TO BE DEDUCTED FROM THEM.  AT
COMMON LAW, PROOF THAT A CASE OF EGGS CONTAINED A SPECIFIED AMOUNT OF
DAMAGE FOR WHICH THE CARRIER WAS NOT LIABLE WOULD AFFORD NO DEFENSE TO
A DAMAGE CLAIM NOT SHOWN TO INCLUDE THAT DAMAGE.  TO COMPLETE THE
DEFENSE, SOME SHOWING THAT THE DAMAGE CLAIMED INCLUDED THE EXEMPT
DAMAGE WOULD BE REQUIRED, SUCH AS EVIDENCE THAT ALL OF THE DAMAGE HAD
BEEN FOUND AND CLAIMED.  SIMILARLY, TO JUSTIFY A REGULATION AUTHORIZING
THE DEDUCTION FROM DAMAGE CLAIMS OF A TOLERANCE REPRESENTING EXEMPT
DAMAGE, SOME BASIS FOR INFERRING THAT DAMAGE CLAIMS ORDINARILY INCLUDE
SUCH DAMAGE WOULD SEEM REQUIRED, SUCH AS A FINDING THAT THE TYPE OF
INSPECTION UPON WHICH DAMAGE CLAIMS ARE BASED IS ADEQUATE TO REVEAL
SUBSTANTIALLY ALL THE DAMAGE PRESENT IN A CASE. 

FAR FROM MAKING SUCH A FINDING, HOWEVER, THE COMMISSION REPORT
INDICATES THAT DAMAGE CLAIMS NORMALLY DO NOT INCLUDE ALL THE DAMAGE
PRESENT IN A CASE.  AS DESCRIBED BY THE COMMISSION, THE CUSTOMARY
INSPECTION AT DESTINATION UPON WHICH DAMAGE CLAIMS ARE BASED IS SIMPLY
A VISUAL EXAMINATION OF A LAYER OF 36 EGGS AT A TIME, CONTINUING ONLY
UNTIL A LAYER IN THE CASE WITH NO VISIBLE DAMAGE IS FOUND, AT WHICH
POINT NONE OF THE SUCCEEDING LAYERS IS EVEN LOOKED AT.  (FN11) INASMUCH
AS "DAMAGE" OF THE SORT REPRESENTED BY THE TOLERANCES INCLUDES EVEN THE
MOST MINOR SHELL IMPERFECTIONS, THE INFERENCE SEEMS INEVITABLE THAT
MUCH DAMAGE IS OVERLOOKED.  THIS INFERENCE IS STRENGTHENED BY THE
COMMISSION'S STATEMENT THAT MUCH OF THE DAMAGE NORMALLY PRESENT IN A
CASE COULD BE FOUND ONLY "BY CANDLING AND CLICKING, AND COULD NOT BE
DETECTED BY THE KIND OF INSPECTION PERFORMED AT" DESTINATION.  (FN12)
AND THAT DAMAGE CLAIMS DO NOT IN PRACTICE INCLUDE ALL DAMAGE IS FURTHER
INDICATED BY THE DEPARTMENT OF AGRICULTURE STUDIES CITED BY THE
COMMISSION IN WHICH THE DAMAGE OVERLOOKED BY CUSTOMARY INSPECTIONS AT
DESTINATION WAS FOUND TO RANGE BETWEEN 3.6% AND 7.3%. (FN13)  INDEED,
IF THE INFERENCES SUGGESTED BY THESE LATTER STUDIES BE ACCEPTED, IT
WOULD APPEAR THAT THERE IS ORDINARILY OVERLOOKED IN THE DESTINATION
INSPECTION - AND HENCE NOT INCLUDED IN DAMAGE CLAIMS - PHYSICAL DAMAGE
NEARLY EQUAL TO OR GREATER THAN THE EXEMPT DAMAGE REPRESENTED BY THE
TOLERANCES.  IF THAT BE TRUE, A FURTHER REDUCTION OF THE CLAIM BY THE
FULL AMOUNT OF THE TOLERANCE WOULD NECESSARILY OPERATE TO "LIMIT"
LIABILITY BY APPROXIMATELY THE FULL AMOUNT OF THE TOLERANCE. 

NOR IS IT AN ANSWER TO THIS THAT THE CONSIGNEE IS ENTITLED TO MAKE A
MORE THOROUGH INSPECTION THAN THE PREVAILING PRACTICE ENTAILS.  BY IN
EFFECT REQUIRING A CONSIGNEE TO PROVE THAT HIS DAMAGE CLAIM DOES NOT
INCLUDE THE EXEMPT DAMAGE, THE TOLERANCES WOULD IMPOSE ON THE CONSIGNEE
THE BURDEN OF DISPROVING A DEFENSE WHICH AT COMMON LAW IT WOULD BE THE
CARRIER'S BURDEN TO ESTABLISH.  WHETHER OR NOT THE COMMISSION HAS POWER
SO TO ALTER THE BURDEN OF PROOF, THERE IS NOTHING TO INDICATE THAT IT
HAD ANY INTENTION OF DOING SO.  THE COMMISSION SEEMS TO HAVE BELIEVED
THAT UNDER THE PREVAILING COMMERCIAL PRACTICES THE CARRIERS WERE BEING
EXPOSED TO AN IMPROPER LIABILITY AND THAT THE TOLERANCES, APPLIED IN
THE SAME COMMERCIAL SETTING, WOULD DO NO MORE THAN REMEDY THAT
SITUATION.  IT WOULD PERVERT THE COMMISSION'S PURPOSE TO DEAL
REALISTICALLY WITH A COMMERCIAL PROBLEM NOW TO SEEK TO JUSTIFY THE
TOLERANCES ON THE GROUND THAT IT IS TECHNICALLY POSSIBLE FOR
CONSIGNEES, BY DEPARTING FROM THE NORMAL COMMERCIAL PRACTICES, TO AVOID
THE LIMITATION OF LIABILITY CAUSED BY THE TOLERANCES.  ESPECIALLY IS
THIS TRUE IN THE ABSENCE OF ANY SUGGESTION IN THE COMMISSION'S REPORT
THAT SUCH A COMPLETE INSPECTION BY CONSIGNEES WOULD BE COMMERCIALLY
FEASIBLE.  (FN14) 

ANOTHER INADEQUACY OF THE COMMISSION'S REPORT ARISES FROM ITS FAILURE
TO DISTINGUISH BETWEEN DIFFERENT KINDS OF PHYSICAL DAMAGE IN THE
APPLICATION OF THE TOLERANCES.  THE MOST FAVORABLE EVIDENCE SUPPORTING
THE COMMISSION'S CONCLUSIONS AS TO THE EXTENT OF THE DAMAGE NOT "CAUSED
BY" THE RAILROADS WAS A DEPARTMENT OF AGRICULTURE STUDY SHOWING THAT AT
DESTINATION THE AVERAGE CASE OF EGGS CONTAINS 4.8% "CHECKED" OR
"STAINED" EGGS AND 0.3% BROKEN EGGS.  (FN15)  PRESUMABLY, THEREFORE,
THE TOLERANCES APPROVED BY THE COMMISSION REPRESENT PHYSICAL DAMAGE IN
THE SAME PROPORTIONS - THAT IS, PRIMARILY CHECKED AND STAINED EGGS WITH
ONLY A NOMINAL PERCENTAGE OF BROKEN EGGS.  CHECKED AND STAINED EGGS ARE
SALABLE AT A REDUCED PRICE AND THEREFORE, UNLIKE BROKEN EGGS, REPRESENT
ONLY A PARTIAL LOSS.  THE TARIFF PROVISIONS, HOWEVER, DO NOT
DIFFERENTIATE BETWEEN THESE TYPES OF DAMAGE AND APPARENTLY AUTHORIZE
THE DEDUCTION OF THE FULL TOLERANCE WITHOUT REGARD TO THE NATURE OF THE
DAMAGE CLAIMED.  BUT TO PERMIT THE OFFSETTING OF CHECKED AND STAINED
EGGS, REPRESENTING ONLY A PARTIAL LOSS, AGAINST BROKEN EGGS,
REPRESENTING A TOTAL LOSS, WOULD SEEM NECESSARILY TO LIMIT THE
RAILROADS' PROPER LIABILITY UNDER SEC. 20(11). 

A THIRD MAJOR RESPECT IN WHICH THE COMMISSION'S REPORT FALLS SHORT OF
ESTABLISHING THAT THE TOLERANCES WILL NOT LIMIT LIABILITY RESULTS FROM
ITS FAILURE TO CONSIDER THE RELATIONSHIP BETWEEN THE PHYSICAL DAMAGE
REPRESENTED BY THE TOLERANCES AND THE LEGAL LOSS FOR WHICH DAMAGE
CLAIMS ARE ASSERTED.  WE HAVE THUS FAR ASSUMED THAT "PHYSICAL DAMAGE"
COULD PROPERLY BE EQUATED WITH "LOSS" AND HAVE SHOWN THAT, EVEN ON THAT
ASSUMPTION, THE COMMISSION HAS NOT SHOWN THE EXISTENCE OF A
RELATIONSHIP BETWEEN THE DAMAGE REPRESENTED BY THE TOLERANCES AND THAT
INCLUDED IN DAMAGE CLAIMS WHICH WOULD JUSTIFY THE DEDUCTION AUTHORIZED
BY THE TARIFF PROVISIONS.  IN FACT, HOWEVER, IT WOULD APPEAR THAT
DAMAGE CLAIMS ARE BASED NOT ON PHYSICAL DAMAGE TO INDIVIDUAL EGGS BUT
RATHER ON THE LOSS OF COMMERCIAL ACCEPTABILITY OF A CASE OF EGGS AS A
WHOLE.  AS THE COMMISSION OBSERVED, THE "COMMERCIALLY SOUND" CASE OF
EGGS INVARIABLY CONTAINS SOME DAMAGE, (FN16) AND IT IS APPARENTLY ONLY
WHEN THE DAMAGE IS SO GREAT AS TO MAKE A CASE COMMERCIALLY UNACCEPTABLE
FOR ITS GRADE THAT IT LOSES VALUE.  WHEN A COMMERCIALLY UNSOUND CASE IS
RECEIVED, THE CONSIGNEE, RATHER THAN SUFFER THE PRESUMABLY GREATER LOSS
THAT WOULD RESULT FROM SELLING IT AT A LOWER GRADE OR AS SALVAGE,
ORDINARILY "RECONDITIONS" THE CASE BY REPLACING THE VISIBLY DAMAGED
EGGS AND, IF NECESSARY, THE PACKAGING MATERIALS.  FROM THE CHARACTER OF
THIS PROCESS AS DESCRIBED BY THE COMMISSION, (FN17) IT IS APPARENT THAT
THE PURPOSE IS SIMPLY TO MAKE THE CASE COMMERCIALLY SOUND AND NOT TO
DISCOVER AND REMOVE ALL THE DAMAGE PRESENT IN THE CASE.  THE DAMAGE
CLAIM, IF LIABILITY IS ASSERTED AGAINST THE CARRIER, THEN CONSISTS
SIMPLY OF THE COST OF RECONDITIONING THE CASE - THAT IS, THE LABOR AND
MATERIAL COSTS PLUS THE LOSS ON THE DAMAGED EGGS REMOVED.  (FN18) 
VIEWED IN THE ABOVE TERMS, THE PROBABLE EFFECT OF THE TOLERANCES ON
LIABILITY BECOMES EVEN MORE APPARENT.  INASMUCH AS THE HIGHEST GRADE
SPECIFICATIONS PRESCRIBED BY THE DEPARTMENT OF AGRICULTURE PERMIT
PHYSICAL DAMAGE OF 5%, (FN19) A CASE OF EGGS RECEIVED AT DESTINATION
WITH ONLY THE TOLERANCE DAMAGE OF 3% OR 5% WOULD PRESUMABLY BE
CONSIDERED "COMMERCIALLY SOUND" AND BE SALABLE AT THE FULL PRICE.  THUS
IT WOULD SEEM THAT PRESENCE OF THE TOLERANCE DAMAGE BY ITSELF CAUSES
THE CONSIGNEE NO LOSS AND AFFORDS NO BASIS FOR A DAMAGE CLAIM, AND THAT
IT IS ONLY WHEN THERE IS ADDITIONAL DAMAGE, MAKING IT NECESSARY TO
RECONDITION THE CASE TO MAKE IT COMMERCIALLY SOUND, THAT THERE IS A
LOSS FOR WHICH A CLAIM MAY BE ASSERTED.  AND IF THE ADDITIOANL DAMAGE
IS CAUSED BY THE RAILROAD, IT NECESSARILY FOLLOWS THAT THE COST OF THE
RECONDITIONING MADE NECESSARY ONLY BECAUSE OF THAT DAMAGE IS A LOSS
"CAUSED BY" THE RAILROAD WITHIN SEC. 20(11).  (FN20)  ANY REDUCTION OF
THE DAMAGE CLAIM IN SUCH CIRCUMSTANCES WOULD THUS RELIEVE THE CARRIER
OF ITS PROPER LIABILITY. 

THE COMMISSION'S REPORT THUS LEAVES US NOT MERELY WITH UNCERTAINTY AS
TO THE IMPACT OF THE TOLERANCES, CF. UNITED STATES V. CHICAGO, M., ST.
P.&P.R. CO., 294 U.S. 499, 504-505, 510-511, BUT WITH THE STRONG
IMPRESSION THAT THEY ARE LIKELY TO OPERATE IN A FORBIDDEN MANNER.  THE
REPORT CONTAINS NO ANSWERS TO THE PROBLEMS WE HAVE RAISED, IF INDEED
THE COMMISSION CONSIDERED THEM AT ALL.   SINCE THE REPORT FALLS FAR
SHORT OF ESTABLISHING THAT THE TOLERANCES WILL NOT OPERATE TO LIMIT
CARRIER LIABILITY IN VIOLATION OF SEC. 20(11), THE ORDER OF THE
COMMISSION APPROVING THE TOLERANCES MUST BE SET ASIDE, AND THE JUDGMENT
BELOW REVERSED. 

FN1  28 U.S.C. SECS. 1253, 2325.  THE SECRETARY OF AGRICULTURE'S
STANDING IN THESE PROCEEDINGS DERIVES FROM 52 STAT. 36, 7 U.S.C. SEC.
1291(A) AND (B). 

FN2  UTAH POULTRY & FARMERS COOPERATIVE V. UNITED STATES, 119 F.
SUPP. 846. 

FN3  284 I.C.C. 377. 

FN4  348 U.S. 807. 

FN5  THE COMMISSION FOUND THAT ON EGGS SHIPPED TO NEW YORK THE
AVERAGE CLAIM PER CAR INCREASED MORE THAN 1800% FROM 1940 TO 1947, 284
I.C.C., AT 386, 390, AND THAT THE TOTAL CLAIMS PAID IN 1947 EXCEEDED
50% OF THE GROSS REVENUE ON SUCH SHIPMENTS, ID., AT 387. 

FN6  36 STAT. 552, AS AMENDED, 49 U.S.C. SEC. 15(7). 

FN7  THE TARIFF PROVISIONS AS ORIGINALLY FILED ESTABLISHED 4% AND 6%
TOLERANCES AS OPPOSED TO THE 3% AND 5% TOLERANCES FOUND REASONABLE BY
THE COMMISSION.  SEE 284 I.C.C., AT 407-408. 

FN8  PROMPTLY AFTER THE COMMISSION'S ORDER, THE RAILROADS REFILED THE
TARIFF PROVISIONS WITH THE APPROVED PERCENTAGES.  THEY WERE PERMITTED
TO GO INTO EFFECT ON MAY 2, 1952. 

FN9  IT IS CONCEDED THAT SEC. 20(11) CODIFIES THE COMMON-LAW RULE
MAKING A CARRIER LIABLE, WITHOUT PROOF OF NEGLIGENCE, FOR ALL DAMAGE TO
THE GOODS TRANSPORTED BY IT, UNLESS IT AFFIRMATIVELY SHOWS THAT THE
DAMAGE WAS OCCASIONED BY THE SHIPPER, ACTS OF GOD, THE PUBLIC ENEMY,
PUBLIC AUTHORITY, OR THE INHERENT VICE OR NATURE OF THE COMMODITY. 
SEE, E.G., BILLS OF LADING, 52 I.C.C. 671, 679; CHESAPEAKE & O.R. CO.
V. THOMPSON MFG. CO., 270 U.S. 416, 421-422; ADAMS EXPRESS CO. V.
CRONINGER, 226 U.S. 491, 506-507, 509.  THE "UNAVOIDABLE" DAMAGE TO
EGGS IS CLAIMED TO BE WITHIN THE "INHERENT VICE" EXCEPTION.  THE
APPELLANTS CONTEND, HOWEVER, THAT THE EXCEPTION DOES NOT INCLUDE DAMAGE
INDUCED BY EXTERNAL FORCE, HOWEVER SLIGHT OR UNAVOIDABLE, BUT IS
LIMITED TO LOSS OR DAMAGE ARISING SOLELY FROM THE NATURE OF THE
PROPERTY WITHOUT THE INTERVENTION OF HUMAN FACTORS, SUCH AS LOSS FROM
DECAY, FERMENTATION, EVAPORATION OR NATURAL SHRINKAGE.  SEE, E.G.,
AUSTIN V. SEABOARD R. CO., 188 F.2D 239, 240-241 (C.A. 5TH CIR.);
AKERLY V. RAILWAY EXP.  AGENCY, 96 N.H. 396, 400-402, 77 A.2D 856, 860
861; JACKSON & PERKINS CO. V. MUSHROOM TRANSP.  CO., 351 PA.  583, 590
591, 41 A.2D 635, 639; WATSON BROS. TRANSP.  CO. V. DOMENICO, 118 COLO.
133, 135-137, 194 P.2D 323, 325. 

FN10  THE COMMISSION FOUND THAT THE INCREASE OF DAMAGE CLAIMS TO
"SUBSTANTIAL AMOUNTS" HAD OCCURRED PRINCIPALLY IN CONNECTION WITH
SHIPMENTS TO CERTAIN POINTS IN THE EASTERN SEABOARD TERRITORY -
PARTICULARLY NEW YORK, BALTIMORE, PHILADELPHIA, BOSTON AND NEWARK - AND
THAT "GENERALLY THERE HAS BEEN NO INCREASE IN THE DAMAGE CLAIMS ON
SHELL EGGS MOVED BY RAIL TO OTHER TERRITORIES."  284 I.C.C., AT 385
386, 392. 

FN11  284 I.C.C., AT 395. 

FN12  284 I.C.C., AT 393-394.  IN "CANDLING," EACH EGG IS PLACED
BEFORE A LIGHT TO DISCLOSE DEFECTS NOT OTHERWISE DETECTABLE; IN
"CLICKING," TWO EGGS ARE KNOCKED TOGETHER, THE SOUND REVEALING SHELL
IMPERFECTIONS. 

FN13  284 I.C.C., AT 396.  IN ANSWER TO THE IMPLICATIONS OF THESE
UNCONTROVERTED STUDIES, THE COMMISSION SIMPLY SAID:  "THE RECORD DOES
NOT INDICATE THE HANDLING RECEIVED BY THOSE PARTICULAR SHIPMENTS AFTER
THEY WERE DELIVERED TO THE CONSIGNEES.  IT DOES INDICATE, HOWEVER,
BASED ON THE NUMBER AND AMOUNT OF CLAIMS THAT THE INSPECTION OF
SHIPMENTS OF EGGS ARRIVING AT NEW YORK IS BEING PERFORMED WITH A VIEW
TO DETECTING ALL DAMAGED EGGS.  CLAIMS IN AMOUNTS EXCEEDING 50 PERCENT
OF THE REVENUE ON THE ENTIRE EGG TRAFFIC TO NEW YORK IN 1947 DO NOT
APPEAR TO BE BASED ON A CURSORY INSPECTION."  IBID.  BUT THIS
SPECULATIVE REASONING HARDLY OVERCOMES THE COMMISSION'S OWN EXPLICIT
FINDING OF THE INADEQUACY OF THE DESTINATION INSPECTIONS TO DISCOVER
ALL THE DAMAGE. 

FN14  TO THE CONTRARY, THE REPORT NOTES THAT, DESPITE THE EFFORTS OF
PACKERS BY CAREFUL INSPECTION TO ELIMINATE ALL DAMAGE, "ABSOLUTE
PERFECTION IS COMMERCIALLY IMPOSSIBLE" AND A SUBSTANTIAL AMOUNT IS
OVERLOOKED, 284 I.C.C., AT 393, AND THE DIFFICULTIES WOULD SEEM EVEN
GREATER UNDER THE MORE ADVERSE CONDITIONS PREVAILING AT DESTINATION. 
NOR DO THE DEPARTMENT OF AGRICULTURE TEST STUDIES UPON WHICH THE
TOLERANCES WERE BASED INDICATE THE FEASIBILITY OF AN INSPECTION
ADEQUATE TO UNCOVER ALL DAMAGE.  THE USUAL DEPARTMENT OF AGRICULTURE
GRADING INSPECTIONS INVOLVE AN EXAMINATION ONLY OF 100 EGGS FROM EACH
OF 15 CASES OUT OF A CARLOAD, 284 I.C.C., AT 393, AND, WHILE THE
COMMISSION DOES NOT CLEARLY SAY SO, APPARENTLY THE TEST STUDIES
UTILIZED A SIMILAR SPOT-CHECK INSPECTION, FROM WHICH THE TOTAL AMOUNT
OF DAMAGE WAS SIMPLY INFERRED.  DAMAGE CLAIMS, ON THE OTHER HAND, CAN
BE ASSERTED ONLY FOR THE DAMAGE THAT IS ACTUALLY FOUND. 

FN15  284 I.C.C., AT 393-394.  "CHECKED" EGGS HAVE SLIGHT CRACKS BUT
THE MEMBRANE IS UNBROKEN; "STAINED" EGGS ARE SOUND EGGS WHICH HAVE BEEN
STAINED BY LEAKAGE FROM OTHER EGGS.  ID., AT 384, 385. 

FN16  284 I.C.C., AT 393. 

FN17  284 I.C.C., AT 395.  THE EGGS ARE SIMPLY TRANSFERRED FROM THE
DAMAGED CASE TO A NEW CASE A WHOLE LAYER (36 EGGS) AT A TIME, IN THE
COURSE OF WHICH ANY OBVIOUSLY DAMAGED EGGS ARE REMOVED AND REPLACED. 

FN18  284 I.C.C., AT 385, 399. 

FN19  284 I.C.C., AT 401.  OF THIS 5% (FOR GRADE A OR AA EGGS), NO
MORE THAN 0.5% MAY CONSIST OF BROKEN EGGS.  AS APPEARS ABOVE, HOWEVER,
THE PROPORTION OF BROKEN EGGS REPRESENTED BY THE TOLERANCES IS WELL
WITHIN THIS LIMIT. 

FN20  IT SEEMS IMMATERIAL THAT IN A GIVEN CASE THE CONSIGNEE MIGHT
REMOVE MORE DAMAGE THAN THE MINIMUM NECESSARY TO MAKE THE CASE
COMMERCIALLY SOUND.  THE COST OF THE EXTENSIVE INSPECTION THAT WOULD BE
NECESSARY TO ASSURE THAT PRECISELY THE RIGHT AMOUNT OF DAMAGE IS
REMOVED - A COST THE CONSIGNEE WOULD PRESUMABLY BE INTITLED TO RECOVER
WOULD DEFEAT THE MITIGATION OF DAMAGES WHICH IS THE VERY PURPOSE OF
THE RECONDITIONING.  THE CARRIER CAN ASK NO MORE THAN THAT THE
CONSIGNEE ACT REASONABLY IN MITIGATING DAMAGES, AND THERE IS NO
SUGGESTION THAT THE COMMERCIALLY ACCEPTED METHOD OF RECONDITIONING
UNSOUND CASES IS UNREASONABLE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IT SEEMS DESIRABLE TO STATE, SUMMARILY, THE BASIS ON WHICH I JOIN THE
COURT'S OPINION. 

THE STARTING-POINT OF THE COURT'S DETERMINATION OF THE ISSUE IN THIS
CASE IS RECOGNITION OF THE FACT THAT THE CUMMINS AMENDMENT TO THE
INTERSTATE COMMERCE ACT, SEC. 20(11), DOES NOT CONSTITUTE AN
AFFIRMATIVE CONGRESSIONAL FORMULATION OF A CARRIER'S LIABILITY FOR
DAMAGE TO GOODS TRANSPORTED BY IT.  THE LEGAL IMPORT OF THAT AMENDMENT
IS TO BAR THE INTERSTATE COMMERCE COMMISSION FROM LEGALIZING TARIFFS
LIMITING THE COMMON-LAW LIABILITY OF A CARRIER FOR SUCH DAMAGE.  THE
COMMON LAW, IN IMPOSING LIABILITY, DISPENSED WITH PROOF BY A SHIPPER OF
A CARRIER'S NEGLIGENCE IN CAUSING THE DAMAGE.  BUT FOR BREAKAGE
UNAVOIDABLE IN THE NATURE OF THINGS - WHETHER NATURE BE OPERATING
WITHIN A THING OR FROM WITHOUT, IT IS EQUALLY AN "INHERENT VICE" -
THERE WOULD BE NO LIABILITY SINCE THE COMMON LAW DID NOT IMPOSE A
LIABILITY UNRELATED TO THE CARRIER'S CONDUCT. 

THESE ARE THE GENERAL PRINCIPLES TO BE DEDUCED FROM THE CASES DECIDED
AT COMMON LAW.  A SITUATION AS COMPLICATED AS THE ONE BEFORE US
PRECLUDES MECHANICAL OR MATHEMATICAL APPLICATION OF THESE
GENERALITIES.  AT COMMON LAW, IF A SHIPPER SUED FOR DAMAGE TO EGGS, THE
CARRIER MIGHT BE ABLE TO INTRODUCE EVIDENCE DEMONSTRATING AN
ESTABLISHED PERCENTAGE OF LOSS NOT IN ANY SENSE CAUSED BY IT. SUCH FACT
OF INEVITABLE LOSS COULD BE ESTABLISHED BY ADEQUATELY SUPPORTED
AVERAGES AND WOULD NOT REQUIRE DEMONSTRATION OF THE INCIDENCE OF
INEVITABLE PRESHIPMENT OR IN-TRANSIT DAMAGE IN A PARTICULAR SHIPMENT. 
TO BE SURE, THE SHIPPER MIGHT THEN REPLY BY PROVING AN INEVITABLE
PERCENTAGE OF DAMAGE CAUSED BY THE RAILROAD WHICH WAS UNDETECTED OR
UNDETECTABLE AT DESTINATION.  ONE WOULD HAVE TO REASON FROM PRINCIPLE,
AS IT IS CALLED, TO CONCLUDE WHETHER THE COMMON LAW WOULD THROW ON THE
CARRIER THE BURDEN OF SHOWING THAT THE TOTAL AMOUNT OF SUCH LOSS WAS
INEVITABLY REPRESENTED IN THE SHIPPER'S DAMAGE CLAIM OR WHETHER IT
WOULD ALLOW THE CARRIER TO SUBTRACT THIS INEVITABLE DAMAGE FROM
WHATEVER DAMAGE CLAIM WAS MADE AND THUS THROW ON THE SHIPPER THE BURDEN
OF FINDING ALL THE DAMAGE IF HE WANTED A FULL RECOVERY. 

LIKEWISE, IF THE COMMON LAW ALLOWED A CARRIER TO URGE THAT THE
SHIPPER SUFFERED NO LOSS FROM THE UNDETECTED OR UNDETECTABLE DAMAGE
BECAUSE HE COULD GET FULL PRICE FOR THE CASES CONTAINING SUCH DAMAGE,
IT MIGHT BE EQUALLY OPEN TO THE SHIPPER TO URGE THAT THE AVERAGE
INEVITABLE LOSS WHICH WAS BEING SUBTRACTED FROM HIS DAMAGE CLAIM WAS
MADE UP IN LARGE PART OF DAMAGE WHICH WAS EQUALLY UNDETECTABLE BY
ORDINARY COMMERCIAL INSPECTION AND COULD THEREFORE NOT BE REPRESENTED
IN THE DAMAGE CLAIMS THAT WERE BEING MADE.  A FURTHER COMPLICATING
FACTOR IS THE FACT THAT THE GRADE SPECIFICATIONS PRESCRIBED BY THE
DEPARTMENT OF AGRICULTURE ALLOW PRESCRIBED PERCENTAGES OF DAMAGE.  SEE
284 I.C.C., AT 401.  FOR EXAMPLE, 5% SHELL DAMAGE IS PERMITTED IN GRADE
AA AND GRADE A EGGS, SO THAT THE PRESENCE OF SUCH DAMAGE DOES NOT
PREVENT A SHIPPER FROM RECEIVING FULL PRICE. 

THE CUMMINS AMENDMENT REQUIRES THAT COMMON-LAW PRINCIPLES OF
LIABILITY BE NOT IMPAIRED.  BUT THE DIFFICULTIES OF PROOF AND THE
PRESENCE OF NUMEROUS COMPLICATING FACTORS, SOME OF WHICH HAVE BEEN
INDICATED, DO NOT PERMIT DOGMATIC VIEWS REGARDING THE COMMON LAW'S
TREATMENT OF SUCH A SITUATION AS THIS.  THE UNSUITABILITY OF COMMON-LAW
PROCEEDINGS FOR THE TRIAL OF SUCH COMPLICATED ISSUES WAS ONE OF THE
MAIN REASONS WHY THE INTERSTATE COMMERCE COMMISSION WAS ESTABLISHED TO
DEAL WITH PROBLEMS PERTAINING TO RAILROAD TARIFFS AND THE CONFLICTING
INTERESTS THEY ENTAIL.  AS LONG AS THE COMMISSION IS GUIDED BY THE
COMMON-LAW PRINCIPLES GOVERNING THE CARRIERS' LIABILITY AND TAKES DUE
ACCOUNT OF ALL THE FACTORS THEREBY INVOLVED, THIS COURT MUST STAY ITS
HANDS.  THE ORDER OF THE COMMISSION IN THIS CASE, HOWEVER, IS SET ASIDE
BECAUSE THE COMMISSION HAD NOT MADE CLEAR THE BASIS ON WHICH IT
APPROVED THE ALLOWABLE "TOLERANCES" IN THE SANCTIONED TARIFFS.  SINCE
THE BASIS OF THE COMMISSION'S ORDER IS NOT CLEAR, THE FOUNDATION FOR
THE REVIEW OF THE ORDER IS WANTING.  UNITED STATES V. CHICAGO, M., ST.
P.&P.R. CO., 294 U.S. 499, 510-511. 

THIS PRECONDITION OF CLARITY FOR THE FINDINGS OF THE COMMISSION AS A
BASIS FOR REVIEW DOES NOT REQUIRE US TO ESTABLISH THE FRAILTY OF
PARTICULAR FINDINGS OR TO EXAMINE THE CORRECTNESS OF ALTERNATIVE
MEANINGS TO BE ATTRIBUTED TO DUBIOUS FINDINGS.  AN ORDER OF THE
COMMISSION CANNOT STAND IF WE CANNOT TELL WHAT IT HAS DECIDED OR IF IT
LEAVES FOGGY THE BASIS OF ITS CONCLUSIONS. 

IN JOINING THE OPINION OF THE COURT, THEREFORE, I DO NOT READ IT AS
IMPLYING THAT, BECAUSE ANY PROOF OF TOLERANCES MAY HAVE INFIRMITIES AS
A MATTER OF MATHEMATICAL DEMONSTRATION OR MAY OFFEND THEORETICAL
ARGUMENTS BASED ON LAWS OF PROBABILITY, IT MAY NOT SATISFY THE CRUDER
STANDARDS OF PROOF BY WHICH ADJUDICATIONS ARE MADE IN COURTS OF LAW AND
WHICH MAY SUSTAIN DETERMINATIONS BY THE INTERSTATE COMMERCE
COMMISSION.  SPECIFICALLY, I ASSUME THAT THE VARIOUS INADEQUACIES WHICH
GENERATE THE UNCERTAINTY IN WHICH THE COMMISSION'S REPORT LEAVES US ARE
NOT TO BE DEEMED CONTROLLING RULES OF LAW IN ALLOWING THE COMMISSION TO
ASCERTAIN INEVITABLE PRESHIPMENT OR IN-TRANSIT DAMAGE TO EGGS, I.E.,
TOLERANCES, BY SUCH SUBSTANTIALITY OF PROOF AS IS APPROPRIATE TO THE
SUBJECT MATTER. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE BURTON
JOIN, DISSENTING. 

THE COURT'S OPINION DOES NOT MEET THE ISSUE IN THIS CASE AS I SEE IT.
THE PRINCIPAL QUESTION, AS WAS FREELY CONCEDED AT THE ARGUMENT, WAS
WHETHER THE INTERSTATE COMMERCE COMMISSION HAD THE POWER TO PROMULGATE
THE REGULATION UNDER SEC. 20(11).  THE COURT NOW ACCEPTS FOR THE SAKE
OF ARGUMENT THAT THE COMMISSION HAD THE POWER AND THEN PROCEEDS TO FIND
THE REGULATION UNFAIR AND UNREASONABLE, ALTHOUGH A SIMILAR REGULATION
HAD BEEN IN EFFECT SINCE 1919.  SEE NATIONAL POULTRY, BUTTER & EGG
ASSN. V. NEW YORK CENTRAL R. CO., 52 I.C.C. 47.    IN AN EARLIER CASE,
IN WHICH THE COMMISSION HAD UNDER CONSIDERATION A TARIFF WHICH PROVIDED
CERTAIN DEDUCTIONS AS AN INCIDENT TO THE NATURAL SHRINKAGE OF GRAIN, IT
WAS CLAIMED THAT THE CARRIER COULD NOT SO LIMIT ITS LIABILITY BECAUSE
IT VIOLATED SEC. 20(11).  THE COMMISSION SAID: 

"THERE APPEARS TO BE LITTLE OR NO MERIT IN THE CONTENTION THAT THE
RULE VIOLATES THE INHIBITION CLAUSE OF THE ACT AGAINST THE LIMITATION
OF LIABILITY, FOR THE LIMITATION IS NOT AGAINST LOSSES CAUSED BY THE
CARRIER OR ITS CONNECTIONS, BUT RATHER AGAINST LIABILITY FOR LOSSES DUE
TO THE INHERENT NATURE OF THE COMMODITIES THEMSELVES AND ATTRIBUTABLE
TO NO HUMAN AGENCY."  A.B. CROUCH GRAIN CO. V. ATCHINSON, T.&S.F.R.
CO., 41 I.C.C. 717-718.  SEE ALSO THE CUMMINS AMENDMENT, 33 I.C.C.
682. 

FOR LOSS IN TRANSPORTATION DUE TO THE INHERENT NATURE OF THE GOODS A
CARRIER IS NOT LIABLE.  CHESAPEAKE & O.R. CO. V. THOMPSON MFG. CO., 270
U.S. 416.  CARRIER LIABILITY MUST BE LIMITED TO DAMAGE "CAUSED BY IT." 
ADAMS EXPRESS CO. V. CRONINGER, 226 U.S. 491.  A TOLERANCE REGULATION
THAT FAIRLY TAKES INTO CONSIDERATION THE INHERENT NATURE OF THE GOODS
AND THE DAMAGE EXISTING PRIOR TO RECEIPT BY THE CARRIER, AS THIS
REGULATION DOES, IS NOT PROHIBITED BY SEC. 20(11).  OBVIOUSLY THERE
COULD NOT BE A SEARCH AND DETERMINATION EGG BY EGG AS TO WHETHER THE
BREAKAGE WAS DUE TO THE FAULT OF THE CARRIER OR TO THE INHERENT NATURE
OF THE COMMODITY.  I THINK THE COMMISSION HAD THE POWER TO PROMULGATE
REGULATIONS PRESCRIBING, AFTER FULL HEARING, A REASONABLE DEDUCTION FOR
LOSS DUE TO THE INHERENT DEFECTS OF THE COMMODITY TRANSPORTED.  THE
NATURE OF THE COMMODITY AND THE IMPOSSIBILITY OF DECIDING THIS HUMPTY
DUMPTY QUESTION OF WHO OR WHAT BROKE THE EGG IS A PROPER SUBJECT FOR
REGULATION.  SUCH A REGULATION WOULD NOT BE A LIMIT OF LIABILITY BUT A
YARDSTICK FOR MEASURING THE DAMAGE NOT CAUSED BY THE CARRIER BUT DUE TO
THE INHERENT NATURE OF THE COMMODITY. 

WHAT THE COMMISSION DID, AFTER LONG INVESTIGATION AND EXPERIENCE WITH
SIMILAR REGULATIONS SINCE 1919, WAS TO ORDER THAT, AS TO SHELL EGGS
PACKAGED AT RAILPOINT OR ORIGIN, NO CLAIM SHOULD BE ALLOWED FOR DAMAGES
NOT IN EXCESS OF 3%.  IF IN EXCESS OF 3% THERE COULD BE RECOVERY ON
SHOWING THAT THE DAMAGE WAS CAUSED BY THE CARRIER.  FOR EGGS PACKAGED
OFF THE RAILHEAD THE TOLERANCE WAS 5%. 

AS THE BASIS FOR ITS ACTION THE COMMISSION SPECIFICALLY FOUND: 

"WE FIND THAT THE PRESENT 5 PERCENT TOLERANCE ON EGGS, OTHER THAN
THOSE REHANDLED AND REPACKED AT THE RAIL POINT OF ORIGIN, IS NOT SHOWN
TO BE UNREASONABLE OR OTHERWISE UNLAWFUL.  WE FURTHER FIND THAT THE
PROPOSED TOLERANCES OF 4 PERCENT ON EGGS PACKED AT POINTS OTHER THAN
THE RAIL POINT OF ORIGIN HAVE NOT BEEN JUSTIFIED, BUT THAT TOLERANCES
OF 3 AND 5 PERCENT RESPECTIVELY, WOULD BE REASONABLE  ...  ."  284
I.C.C., AT 403. 

THE COMMISSION REPORT EMBODIES BASIC FINDINGS TO SUPPORT THIS
CONCLUSION.  FOR EXAMPLE, THE COMMISSION CONCLUDED, ON THE BASIS OF
CERTAIN DEPARTMENT OF AGRICULTURE STUDIES, THAT 3.4% DAMAGE IS THE
TYPICAL AVERAGE DAMAGE EXISTING IN SHIPMENTS OF EGGS WHEN LOADED INTO
RAILROAD CARS AT POINTS OF ORIGIN; AND THAT AN AVERAGE OF 1.7% DAMAGE
WAS "INCIDENT TO THE MOVEMENT IN TRANSIT."  284 I.C.C., AT 393-394. 
FURTHER, THE COMMISSION FOUND THAT THE COMMERCIAL DESTINATION
INSPECTIONS AT NEW YORK, THE MOST IMPORTANT TERMINAL FOR EGGS SHIPPED
BY RAIL, ARE "PERFORMED WITH A VIEW TO DETECTING ALL DAMAGED EGGS." 
ID., AT 396.  THE TOLERANCES REPRESENT THE CONSIDERED JUDGMENT OF THE
COMMISSION, AFTER HEARING VOLUMINOUS EVIDENCE AS TO THE NATURE OF SHELL
EGGS AND THE WAY THEY ARE HANDLED AT RAILPOINT, OFF RAILPOINT AND
DURING SHIPMENT.  I CANNOT SAY THAT THIS IS NOT AN ALLOWABLE JUDGMENT
FOR THE COMMISSION TO MAKE.  CERTAINLY THE TREATMENT OF THIS CASE BY
THE MAJORITY DOES NOT MAKE FOR CLARITY AND UNDERSTANDING, AND IT LEAVES
YET UNDECIDED THE QUESTION WHETHER THE COMMISSION HAS THE POWER TO MAKE
AN ORDER ESTABLISHING SUCH A REGULATION OR TARIFF.  I THINK THE
REGULATION IS AN ADEQUATE COMMERCIAL APPROXIMATION OF NONCARRIER
DAMAGE, AND IS REASONABLE AND WITHIN THE POWER OF THE COMMISSION TO
MAKE. 

FOR THESE REASONS, AND FOR THE REASONS SET FORTH AT LENGTH IN THE
OPINION OF THE DISTRICT COURT, 119 F. SUPP. 846, I WOULD AFFIRM THE
JUDGMENT. 
..END :















NATIONAL LABOR RELATIONS BOARD V. WARREN COMPANY, INC. 350 U.S. 107 


NO. 27.  ARGUED OCTOBER 20, 1955 - DECIDED DECEMBER 12, 1955 - 214 F.2D
481, REVERSED AND REMANDED. 


THE NATIONAL LABOR RELATIONS BOARD ORDERED AN EMPLOYER TO CEASE AND
DESIST FROM CERTAIN UNFAIR LABOR PRACTICES, TO REINSTATE CERTAIN
DISCHARGED EMPLOYEES WITH BACK PAY, TO BARGAIN COLLECTIVELY WITH THE
UNION, AND TO POST NOTICES STATING THAT IT WOULD DO SO.  THE EMPLOYER
COMPLIED WITH ALL OF THESE ORDERS EXCEPT THE ORDER TO BARGAIN
COLLECTIVELY, CLAIMING THAT THE UNION NO LONGER REPRESENTED A MAJORITY
OF ITS EMPLOYEES.  IN AN ENFORCEMENT PROCEEDING, THE COURT OF APPEALS
DECREED ENFORCEMENT, OVERRULING THE EMPLOYER'S CONTENTION THAT THE
UNION'S LOSS OF MAJORITY REPRESENTATION OF THE EMPLOYEES RELIEVED THE
EMPLOYER FROM COMPLIANCE WITH THE ORDER TO BARGAIN COLLECTIVELY. 
SUBSEQUENTLY, THE BOARD PETITIONED THE COURT OF APPEALS TO FIND THE
EMPLOYER IN CONTEMPT FOR CONTINUED REFUSAL TO BARGAIN COLLECTIVELY; BUT
THE COURT DECLINED TO DO SO ON THE GROUND THAT THE UNION NO LONGER
REPRESENTED A MAJORITY OF THE EMPLOYEES.  HELD:  IT WAS THE STATUTORY
DUTY OF THE COURT OF APPEALS TO ADJUDGE THE EMPLOYER IN CONTEMPT OF ITS
ENFORCEMENT DECREE, AND THE COURT EXCEEDED THE ALLOWABLE LIMITS OF ITS
DISCRETION IN DECLINING TO DO SO.  PP. 108-113. 

(A)  IN THE CIRCUMSTANCES OF THIS CASE, IT WAS THE LAWFUL DUTY OF THE
EMPLOYER TO BARGAIN COLLECTIVELY WITH THE UNION FOR A REASONABLE TIME. 
P. 112. 

(B)  FOR FAILURE TO SO BARGAIN, IT WAS THE STATUTORY DUTY OF THE
COURT OF APPEALS, ON PETITION OF THE BOARD, TO ADJUDGE THE EMPLOYER IN
CONTEMPT OF ITS ENFORCEMENT DECREE.  P. 112. 

(C)  THE NATIONAL LABOR RELATIONS ACT CONTEMPLATES COOPERATION
BETWEEN THE BOARD AND THE COURTS OF APPEALS, BOTH AT THE ENFORCEMENT
AND THE CONTEMPT STAGES IN ORDER TO EFFECTUATE ITS PURPOSES.  P. 112. 

(D)  THE GRANTING OR WITHHOLDING OF SUCH REMEDIAL ACTION IS NOT
WHOLLY DISCRETIONARY WITH THE COURT, AND THE COURT OF APPEALS EXCEEDED
THE ALLOWABLE LIMITS OF ITS DISCRETION IN DENYING RELIEF TO THE BOARD. 
P. 113. 

NATIONAL LABOR RELATIONS BOARD V. WARREN COMPANY, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

ON AUGUST 7, 1952, THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT ENTERED ITS DECREE ENFORCING IN FULL AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD ISSUED ON JUNE 30, 1950, AGAINST RESPONDENT
HEREIN DIRECTING IT (1) TO CEASE AND DESIST FROM REFUSING TO BARGAIN
COLLECTIVELY WITH DISTRICT LODGE NO. 46, INTERNATIONAL ASSOCIATION OF
MACHINISTS, A LABOR UNION, AS THE EXCLUSIVE BARGAINING AGENT OF ALL ITS
TOOL AND DIE MAKERS, MACHINISTS, ETC., AND FROM DISCOURAGING MEMBERSHIP
IN THE UNION; (2) TO TAKE AFFIRMATIVE ACTION UPON REQUEST TO BARGAIN
COLLECTIVELY WITH THE UNION AS THE EXCLUSIVE REPRESENTATIVE OF
RESPONDENT'S EMPLOYEES AND, IF AN UNDERSTANDING SHOULD BE REACHED, TO
EMBODY SUCH UNDERSTANDING IN A SIGNED AGREEMENT; AND (3) TO POST AT ITS
PLANT A NOTICE TO BE FURNISHED BY THE REGIONAL DIRECTOR OF THE NATIONAL
LABOR RELATIONS BOARD AND SIGNED BY THE OFFICERS OF RESPONDENT AGREEING
TO DESIST FROM CERTAIN UNFAIR LABOR PRACTICES, AND TO BARGAIN
COLLECTIVELY WITH THE UNION UPON REQUEST AS REQUIRED IN THE ORDER.  197
F.2D 814. 

RESPONDENT HAD POSTED THE NOTICE AND RESTORED CERTAIN EMPLOYEES TO
THEIR JOBS AS REQUIRED BY THE ORDER, BUT DECLINED TO BARGAIN
COLLECTIVELY WITH THE UNION, ALTHOUGH REQUESTED BY THE LATTER TO DO SO
ON NUMEROUS OCCASIONS OVER A PERIOD OF SEVEN MONTHS, BASING ITS REFUSAL
TO DO SO ON THE GROUND THAT THE UNION HAD LOST ITS ALLEGED MAJORITY
STATUS BY REASON OF A TURNOVER IN PERSONNEL.  IT DEMANDED PROOF FROM
THE UNION THAT IT REPRESENTED A MAJORITY OF THE EMPLOYEES THEN EMPLOYED
IN THE BARGAINING UNIT.  THE UNION REPLIED THAT ITS MAJORITY STATUS HAD
BEEN DETERMINED BY THE BOARD AND BY THE COURT OF APPEALS IN ITS DECREE
OF ENFORCEMENT.  RESPONDENT NEVER BARGAINED COLLECTIVELY WITH THE
UNION, EITHER BEFORE OR AFTER THE DECREE, CONTENDING AT ALL TIMES THAT
THE LATTER DID NOT HAVE MAJORITY STATUS, ALTHOUGH IN 1948 THE EMPLOYEES
HAD DESIGNATED THE UNION AS THEIR BARGAINING AGENT AND THE BOARD HAD
FOUND THAT RESPONDENT HAD AVOIDED COLLECTIVE BARGAINING THROUGH ITS
LACK OF GOOD FAITH AND BECAUSE OF ITS OWN UNFAIR LABOR PRACTICES.  THIS
FINDING WAS NOT CHALLENGED BY RESPONDENT AND WAS ADOPTED BY THE COURT
OF APPEALS IN ITS ENFORCEMENT DECREE OF AUGUST 7, 1952.  RESPONDENT
THEN FILED A PETITION WITH THE BOARD ON JANUARY 27, 1953, REQUESTING AN
ELECTION IN THE BARGAINING UNIT.  BECAUSE OF RESPONDENT'S FAILURE TO
REMEDY ITS UNFAIR LABOR PRACTICE BY GOOD-FAITH BARGAINING WITH THE
UNION FOR A REASONABLE PERIOD, THE BOARD SUSTAINED ITS REGIONAL
DIRECTOR'S DISMISSAL OF THE PETITION. 

ON SEPTEMBER 22, 1953, THE BOARD FILED ITS PETITION IN THE COURT OF
APPEALS, SPECIFICALLY SETTING FORTH THE CONDUCT OF RESPONDENT SHOWING
ITS FAILURE AND REFUSAL TO COMPLY WITH THE COURT'S DECREE ENFORCING THE
BOARD'S ORDER, AND ASKING THAT RESPONDENT BE REQUIRED TO SHOW CAUSE WHY
IT SHOULD NOT BE ADJUDGED IN CIVIL CONTEMPT.  THE BOARD ALSO ASKED THE
COURT TO INSTITUTE A PROSECUTION FOR CRIMINAL CONTEMPT AGAINST
RESPONDENT.  RESPONDENT ANSWERED, CLAIMING COMPLIANCE WITH THE DECREE
EXCEPT THAT SINCE THE DECREE OF THE COURT IT HAD REFUSED TO BARGAIN
COLLECTIVELY WITH THE UNION AS THE BARGAINING AGENT OF ITS EMPLOYEES
BECAUSE FOR A LONG TIME THE UNION HAD NOT REPRESENTED ITS EMPLOYEES AS
SUCH BARGAINING AGENT. 

THE COURT OF APPEALS CONCLUDED THAT NO CASE FOR A CIVIL CONTEMPT
ORDER HAD BEEN MADE OUT AND DISMISSED THE PROCEEDING.  THE COURT HELD
THAT, NOTWITHSTANDING THE PRIOR ENTRY OF A DECREE DIRECTING RESPONDENT
TO BARGAIN COLLECTIVELY WITH THE UNION, RESPONDENT'S COMPLIANCE WITH
OTHER PROVISIONS OF THE DECREE ENTITLED IT TO REFUSE TO BARGAIN
COLLECTIVELY SINCE IT HAD ASCERTAINED THAT EVEN BEFORE THE DECREE,
BECAUSE OF A TURNOVER IN PERSONNEL, THE UNION HAD LOST MAJORITY
STATUS.  THE COURT STATED THAT TO HOLD RESPONDENT LIABLE IN CONTEMPT
UNDER THESE CIRCUMSTANCES WOULD DO VIOLENCE TO ITS DECREE AND TO THE
ACT RATHER THAN TO VINDICATE THEM. 

BECAUSE OF THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF
THE NATIONAL LABOR RELATIONS ACT, WE GRANTED CERTIORARI, 348 U.S. 958. 
PETITIONER DOES NOT PRESS HERE ITS PRAYER IN THE COURT BELOW FOR AN
ADJUDICATION OF CRIMINAL CONTEMPT. 

IN ARRIVING AT ITS DECISION PURGING RESPONDENT OF CONTEMPT, THE COURT
OF APPEALS STATED THAT RESPONDENT HAD "COMPLIED FULLY WITH ALL THE
PROVISIONS" OF ITS ENFORCEMENT ORDER; THAT IT HAD "MADE AN OFFER TO
BARGAIN WITH THE UNION;" THAT THE UNION'S ALLEGED LOSS OF MAJORITY
STATUS WAS "WITHOUT FAULT" ON THE RESPONDENT'S PART; AND THAT THE BOARD
TOOK THE POSITION THAT RESPONDENT WAS REQUIRED "TO BARGAIN
INDEFINITELY" NOTWITHSTANDING THE UNION'S LOSS OF MAJORITY STATUS. 

IF WE HAD SO UNDERSTOOD THE RECORD, CERTIORARI WOULD NOT HAVE BEEN
GRANTED, BUT WE DO NOT SO UNDERSTAND IT.  WE BELIEVE THE FACTS ARE TO
THE CONTRARY IN EACH INSTANCE. 

THE ORIGINAL ORDER OF THE BOARD FOUND NOT ONLY THAT RESPONDENT FOR A
PERIOD OF FOUR YEARS AFTER NOTIFICATION BY THE UNION OF ITS MAJORITY
STATUS HAD REFUSED TO BARGAIN WITH IT, BUT HAD ALSO USED DELIBERATE AND
FLAGRANT UNFAIR LABOR PRACTICES TO DEPRIVE THE UNION OF ITS MAJORITY
STATUS.  IN ITS OPINION ENFORCING THIS CEASE AND DESIST ORDER, THE
COURT OF APPEALS STATED: 

"WITH COMMENDABLE CANDOR RESPONDENT'S COUNSEL HAS STATED ITS POSITION
AS FOLLOWS: 

"'WE HAVE CONTROVERTED THE FINDINGS OF FACT OF THE BOARD IN OUR
RESPONSE, BUT IN ALL FAIRNESS TO THIS COURT WE ARE CONSTRAINED TO ADMIT
THAT THERE IS SUFFICIENT EVIDENCE, EVEN THOUGH DISPUTED, UPON WHICH TO
BASE THE BOARD'S ORDER.'"  197 F.2D 814. 

THE FINDINGS OF BOTH THE BOARD AND THE COURT OF APPEALS ARE,
THEREFORE, CLEAR THAT THERE HAD BEEN NO WILLINGNESS ON RESPONDENT'S
PART UP TO THAT DATE, AUGUST 7, 1952, TO BARGAIN WITH THE UNION. 

IN ITS "ANSWER OF THE RESPONDENT TO THE PETITION OF THE BOARD FOR
ADJUDICATION IN CIVIL CONTEMPT AND OTHER CIVIL RELIEF," FILED NOVEMBER
12, 1953, RESPONDENT ALLEGED: 

"AS SHOWN HEREINBEFORE AND HEREINAFTER RESPONDENT HAS REFUSED TO
BARGAIN COLLECTIVELY WITH THE UNION BECAUSE IT DID NOT REPRESENT A
MAJORITY OF THE EMPLOYEES." 

THERE IS NOTHING IN THE RECORD TO INDICATE THAT THIS SITUATION HAS
EVER CHANGED IN THE SLIGHTEST RESPECT, AND THIS IN FACE OF THE FACT
THAT THE UNION HAS AT ALL TIMES BEEN WILLING TO BARGAIN. 

NEITHER DOES THE RECORD INDICATE THAT THE BOARD INSISTED UPON
RESPONDENT'S BARGAINING WITH THE UNION INDEFINITELY; ON THE CONTRARY,
IT DEMONSTRATES THAT THE BOARD HAS URGED HERE AND IN THE COURT BELOW
THAT RESPONDENT SHOULD BARGAIN IN GOOD FAITH ONLY FOR A REASONABLE
LENGTH OF TIME AFTER DESIGNATION OF THE UNION AS THE BARGAINING
AGENCY. 

IT CANNOT BE SAID THAT RESPONDENT IS "WITHOUT FAULT," BECAUSE THE
RECORD IS CLEAR THAT AT NO TIME HAS RESPONDENT BARGAINED IN GOOD FAITH
WITH THE UNION.  IT HAS MET WITH THE UNION BUT TWICE SINCE 1948 AND ON
NEITHER OF THOSE OCCASIONS DID IT BARGAIN.  (FN1)  IT HAS AVOIDED OTHER
MEETINGS BY EVASION AND REFUSAL OR FAILURE TO RESPOND TO A REQUEST
THEREFOR. 

THE SOLE QUESTION NECESSARY FOR DETERMINATION HERE IS WHETHER AN
EMPLOYER WHO HAS BEEN FOUND GUILTY BY THE BOARD OF UNFAIR LABOR
PRACTICES IN REFUSING TO BARGAIN WITH A UNION DESIGNATED AS THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES AND WHO HAS BEEN DIRECTED TO
SO BARGAIN, IS, AFTER A DECREE ENFORCING THE ORDER AND WITHOUT
REMEDYING ITS UNFAIR LABOR PRACTICES, LEGALLY JUSTIFIED IN REFUSING TO
BARGAIN WITH THE UNION BECAUSE IT CONTENDS THE UNION DOES NOT IN FACT
HAVE MAJORITY STATUS IN ITS PLANT, OR MUST SUCH EMPLOYER BARGAIN FAIRLY
FOR A REASONABLE LENGTH OF TIME IN ACCORDANCE WITH THE ORDER TO AVOID
AN ADJUDICATION IN CIVIL CONTEMPT. 

WE BELIEVE THAT AN EMPLOYER IN SUCH CIRCUMSTANCES CANNOT LAWFULLY
REFUSE TO BARGAIN; THAT HE MUST DO SO FOR A REASONABLE TIME; AND THAT
FOR A FAILURE TO SO BARGAIN IT IS THE STATUTORY DUTY OF THE COURT OF
APPEALS ON PETITION OF THE BOARD TO ADJUDGE HIM IN CONTEMPT OF ITS
ENFORCEMENT DECREE.  TO CONCLUDE OTHERWISE WOULD GREATLY WEAKEN THE
ADMINISTRATION OF THE NATIONAL LABOR RELATIONS ACT. 

THAT ACT CONTEMPLATES COOPERATION BETWEEN THE BOARD AND THE COURTS OF
APPEALS BOTH AT THE ENFORCEMENT AND THE CONTEMPT STAGES IN ORDER TO
EFFECTUATE ITS PURPOSES.  IT CONSIGNS CERTAIN STATUTORY FUNCTIONS TO
EACH, (FN2) AND WHERE THE BOARD HAS ACTED PROPERLY WITHIN ITS
DESIGNATED SPHERE, THE COURT IS REQUIRED TO GRANT ENFORCEMENT OF THE
BOARD'S ORDER.  (FN3)  THE DECREE, LIKE THE ORDER IT ENFORCES, IS AIMED
AT THE PREVENTION OF UNFAIR LABOR PRACTICES, AN OBJECTIVE OF THE ACT,
AND SO LONG AS COMPLIANCE IS NOT FORTHCOMING THAT OBJECTIVE IS
FRUSTRATED.  IT IS FOR THIS REASON THAT CONGRESS GAVE THE JUDICIAL
REMEDY OF CONTEMPT AS THE ULTIMATE SANCTION TO SECURE COMPLIANCE WITH
BOARD ORDERS.  (FN4)  THE GRANTING OR WITHHOLDING OF SUCH REMEDIAL
ACTION IS NOT WHOLLY DISCRETIONARY WITH THE COURT.  (FN5)  THIS IS TRUE
NOT ONLY UNDER THE NATIONAL LABOR RELATIONS ACT BUT ALSO UNDER GENERAL
PRINCIPLES OF EQUITY JURISPRUDENCE.  (FN6) 

IT SEEMS CLEAR TO US THAT IN THE LIGHT OF THESE PRINCIPLES AND THE
FACTS OF THIS CASE, THE COURT BELOW EXCEEDED THE ALLOWABLE LIMITS OF
ITS DISCRETION IN DENYING RELIEF TO THE BOARD AND THAT ITS JUDGMENT
MUST BE REVERSED AND REMANDED FOR PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  THERE WAS ONLY ONE MEETING AFTER ENTRY OF THE ENFORCEMENT
DECREE.  AT THIS MEETING, ON JANUARY 19, 1953, RESPONDENT STATED THAT
IT WAS IN DOUBT AS TO THE MAJORITY STATUS OF THE UNION AND FOR THAT
REASON "HESITATED" TO BARGAIN WITH THE UNION ON THE MATTER OF A
CONTRACT.  THIS POSITION WAS CONFIRMED IN A LETTER DATED JANUARY 20,
1953, IN WHICH RESPONDENT ADVISED THE UNION OF ITS INTENTION TO
PETITION THE BOARD FOR A DECERTIFICATION ELECTION. 

FN2  UNITED STATES V. MORGAN, 307 U.S. 183. 

FN3  LABOR BOARD V. BRADFORD DYEING ASSN., 310 U.S. 318. 

FN4  LABOR BOARD V. MEXIA TEXTILE MILLS, 339 U.S. 563. 

FN5  MCCOMB V. JACKSONVILLE PAPER CO., 336 U.S. 187. 

FN6  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392; UNION
TOOL CO. V. WILSON, 259 U.S. 107; PENFIELD CO. V. SECURITIES AND
EXCHANGE COMMISSION, 330 U.S. 585. 
..END :



















ARIZONA V. CALIFORNIA 350 U.S. 114 


NO. 10, ORIGINAL.  ARGUED DECEMBER 8, 1955 - DECIDED DECEMBER 12, 1955. 


RULING ON MOTION OF CALIFORNIA TO JOIN OTHER STATES AS PARTIES TO THIS
ACTION.  P. 115. 

ARIZONA V. CALIFORNIA ET AL. 

ON EXCEPTIONS TO THE REPORT OF THE SPECIAL MASTER. 

PER CURIAM. 

THE MOTION OF CALIFORNIA TO JOIN THE STATES OF COLORADO AND WYOMING
AS PARTIES TO THIS CAUSE IS DENIED.  THE MOTION TO JOIN UTAH AND NEW
MEXICO AS PARTIES IS GRANTED ONLY TO THE EXTENT OF THEIR INTEREST IN
LOWER BASIN WATERS. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON, AND MR. JUSTICE HARLAN
WOULD GRANT THE MOTION. 

THE CHIEF JUSTICE DID NOT PARTICIPATE IN THIS PROCEEDING. 
..END :







AFFRONTI V. UNITED STATES 350 U.S. 79 


NO. 71.  ARGUED NOVEMBER 15, 1955 - DECIDED DECEMBER 5, 1955 - 221 F.2D
150, AFFIRMED. 


UNDER 18 U.S.C. SEC. 3651, AFTER A SENTENCE OF CONSECUTIVE TERMS ON
MULTIPLE COUNTS OF AN INDICTMENT HAS BEEN IMPOSED AND SERVICE OF
SENTENCE FOR THE FIRST SUCH TERM HAS COMMENCED, A FEDERAL DISTRICT
COURT MAY NOT SUSPEND SENTENCE AND GRANT PROBATION AS TO THE REMAINING
TERM OR TERMS.  UNITED STATES V. MURRAY, 275 U.S. 347.  PP. 79-84. 

(A)  THE LEGISLATIVE HISTORY OF THIS SECTION DOES NOT REQUIRE A
DIFFERENT RESULT.  PP. 81-82, 84. 

(B)  THE PROBATIONARY POWER CEASES WITH RESPECT TO ALL OF THE
SENTENCES COMPOSING A SINGLE CUMULATIVE SENTENCE IMMEDIATELY UPON
IMPRISONMENT FOR ANY PART OF THE CUMULATIVE SENTENCE.  PP. 82-83. 

(C)  THE PROVISION FOR PROBATION SHOULD BE INTERPRETED TO AVOID, SO
FAR AS POSSIBLE, DUPLICATING OTHER EXISTING PROVISIONS FOR THE
MITIGATING OF CRIMINAL SENTENCES.  P. 84. 

AFFRONTI V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

AFFRONTI WAS TRIED IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI ON A TEN-COUNT INDICTMENT CHARGING HIM
WITH ILLEGAL SALES OF NARCOTICS.  A JURY FOUND HIM GUILTY ON COUNTS TWO
THROUGH TEN, AND A FIVE-YEAR SENTENCE WAS IMPOSED ON EACH COUNT TO BE
SERVED CONSECUTIVELY.  AT THE TIME OF SENTENCING, EXECUTION OF THE
SENTENCES ON COUNTS SIX THROUGH TEN WAS SUSPENDED AND PROBATION
GRANTED, THE PROBATION TO COMMENCE AT THE EXPIRATION OF THE SENTENCES
ON COUNTS TWO THROUGH FIVE.  WHILE SERVING HIS SENTENCE ON COUNT TWO,
PETITIONER FILED A MOTION IN THE DISTRICT COURT SEEKING SUSPENSION OF
SENTENCE AND PROBATION ON COUNTS THREE, FOUR AND FIVE.  THE MOTION WAS
DENIED UPON THE CONTROLLING AUTHORITY OF PHILLIPS V. UNITED STATES, 212
F.2D 327 (C.A. 8TH CIR. 1954), WHICH HELD THAT THE DISTRICT COURTS HAVE
NO POWER TO SUSPEND SENTENCE AFTER A PRISONER HAS BEGUN TO SERVE A
CUMULATIVE SENTENCE COMPOSED OF TWO OR MORE CONSECUTIVE SENTENCES.  THE
COURT OF APPEALS AFFIRMED, (FN1) AND WE GRANTED CERTIORARI (FN2)
BECAUSE OF THE EXISTENCE OF A CONFLICT BETWEEN THE DECISION BELOW AND
THE DECISION OF THE NINTH CIRCUIT IN KIRK V. UNITED STATES, 185 F.2F
185.  (FN3) 

PRIOR TO 1925 THE DISTRICT COURTS HAD NO POWER AT ALL TO SUSPEND
SENTENCES AND RELEASE A CONVICT ON PROBATION.  EX PARTE UNITED STATES,
242 U.S. 27.  THIS SITUATION WAS REMEDIED BY CONGRESS WHEN IT PASSED
THE PROBATION ACT IN 1925.  (FN4)  THAT ACT GAVE POWER TO THE FEDERAL
COURTS, "AFTER CONVICTION OR AFTER A PLEA OF GUILTY OR NOLO
CONTENDERE," TO SUSPEND SENTENCE AND PLACE THE DEFENDANT ON PROBATION. 
(FN5)  THE PURPOSE OF THE ACT, AS REVEALED BY ITS LEGISLATIVE HISTORY,
WAS DISCUSSED BY THIS COURT IN UNITED STATES V. MURRAY, 275 U.S. 347. 
THAT CASE ALSO PRESENTED A QUESTION CONCERNING THE TIME WITHIN WHICH A
DISTRICT COURT CAN SUSPEND A SENTENCE AND GRANT PROBATION. 

IN MURRAY THIS COURT OBSERVED THAT, IN VIEW OF THE EXISTENCE OF
PROVISIONS FOR PAROLE AND EXECUTIVE CLEMENCY, IT WOULD SEEM UNLIKELY
THAT CONGRESS WOULD HAVE INTENDED TO MAKE THE PROBATION PROVISIONS
APPLICABLE DURING THE SAME PERIOD OF TIME.  ID., AT 356.  IT WAS
CONCLUDED THAT IT WOULD BE MORE REASONABLE TO CONSTRUE THE PROBATION
ACT SO AS TO RECONCILE THE THREE METHODS OF MITIGATION OF CRIMINAL
SENTENCES, THEREBY "MAKING THEM AS LITTLE OF A REPETITION AS WE CAN." 
ID., AT 357.  THIS AND OTHER CONSIDERATIONS LED THE COURT TO HOLD THAT
A DISTRICT JUDGE HAD NO POWER UNDER THE ACT TO PLACE A CONVICT ON
PROBATION AFTER HE HAD BEGUN THE EXECUTION OF HIS SENTENCE. 

THE DECISION IN THE MURRAY CASE DOES NOT, HOWEVER, COMPLETELY DISPOSE
OF THE QUESTION NOW BEFORE THE COURT.  SINCE THE MURRAY DECISION THERE
HAS BEEN A LANGUAGE CHANGE IN THE STATUTORY PROVISIONS FOR PROBATION. 
IN MURRAY THE COURT WAS CONSIDERING THE QUESTION OF POWER OF THE
DISTRICT COURTS TO PLACE A CONVICT ON PROBATION AFTER HE HAD COMMENCED
TO SERVE A SINGLE GENERAL SENTENCE.  (FN6)  HERE WE ARE CONCERNED WITH
THE POWER TO GRANT SUSPENSION OF SENTENCES WHICH ARE, TECHNICALLY,
WHOLLY UNEXECUTED BECAUSE THEY CONSTITUTE THE UNSERVED TERMS OF A
SERIES OF CONSECUTIVE SENTENCES. 

IN 1948, IN CONNECTION WITH THE REVISION AND CODIFICATION OF TITLE 18
OF THE U.S.C. THE LANGUAGE OF THE PROBATION ACT WITH WHICH WE ARE
CONCERNED WAS CHANGED.  THE STATUTE NOW PROVIDES FOR SUSPENSION OF
SENTENCE AND PROBATION "UPON ENTERING A JUDGMENT OF CONVICTION."  (FN7)
THE SUBSTITUTION OF THE QUOTED WORDS FOR "AFTER CONVICTION OR AFTER A
PLEA OF GUILTY OR NOLO CONTENDERE," THE PHRASE WHICH APPEARED IN THE
PROBATION ACT PRIOR TO THE 1948 CODIFICATION OF TITLE 18, DOES NOT
APPEAR TO HAVE RESULTED IN ANY SUBSTANTIVE CHANGE IN THE LAW.  THE
REVISER'S NOTES WHICH ACCOMPANIED THE 1948 CODIFICATION MERELY STATED
THE FOLLOWING WITH RESPECT TO THIS AMENDMENT: "WORDS 'AFTER CONVICTION
OR AFTER A PLEA OF GUILTY OR NOLO CONTENDERE FOR ANY CRIME OR OFFENSE
NOT PUNISHABLE BY DEATH OR LIFE IMPRISONMENT' WERE OMITTED FROM FIRST
SENTENCE AS UNNECESSARY."  (FN8) THE REVISER'S NOTES WERE USED BY
CONGRESS AS A FULL EXPLANATION OF ALL CHANGES MADE IN THE TEST OF THE
EXISTING LAW.  (FN9)  IT IS UNLIKELY, THEREFORE, THAT CONGRESS INTENDED
THE PHRASE AS IT APPEARS IN THE PRESENT SECTION TO HAVE A DIFFERENT
MEANING THAN THE PHRASE HAD PRIOR TO THE REVISION.  (FN10) 

THE MORE SIGNIFICANT DIFFERENCE BETWEEN THE MURRAY CASE AND THE
PRESENT ONE IS THE FACT THAT HERE WE ARE DEALING WITH A CUMULATIVE
SENTENCE COMPOSED OF A NUMBER OF DISTINCT SENTENCES WHICH ARE TO RUN
CONSECUTIVELY.  (FN11)  PETITIONER NOTES THAT WHILE HE HAS BEGUN THE
EXECUTION OF THE FIRST OF THE SERIES OF SENTENCES, HE HAS NOT COMMENCED
THE EXECUTION OF THE SENTENCES WHICH HE IS NOW SEEKING TO HAVE
SUSPENDED.  HE REASONS FROM THIS FACT THAT THE DISTRICT COURT STILL HAS
PROBATIONARY POWER OVER THE LATTER SENTENCES.  OF COURSE THE WORDS OF
THE STATUTE DO NOT THEMSELVES REQUIRE ADOPTION OF PETITIONER'S
ARGUMENT.  IN FACT THE LANGUAGE OF THE PRESENT PROBATION PROVISION, AND
OF THE ORIGINAL PROVISION AS INTERPRETED BY MURRAY, SUGGESTS A CONTRARY
RESULT. 

IN THE FINAL ANALYSIS, THIS CASE MUST BE GOVERNED BY THE MEANING OF
THE STATUTE.  ARE WE TO READ THE STATUTE TO MEAN THAT THE COURTS SHOULD
BE ABLE TO SUSPEND THE UNCOMMENCED TERMS OF A CUMULATIVE SENTENCE AFTER
THE PRISONER HAS BEEN IMPRISONED AND ENTERED UPON THE EXECUTION OF A
PRIOR TERM?  WE THINK NOT.  THE MURRAY OPINION POINTS OUT THAT IT IS
UNLIKELY THAT CONGRESS WOULD HAVE FOUND IT WISE TO MAKE PROBATION APPLY
IN SUCH A WAY AS TO UNNECESSARILY OVERLAP THE PAROLE AND EXECUTIVE
CLEMENCY PROVISIONS OF THE LAW.  FEDERAL JUDICIAL POWER TO PERMIT
PROBATION SPRINGS SOLELY FROM LEGISLATIVE ACTION.  EX PARTE UNITED
STATES, SUPRA.  THE AUTHORITY TO PUT A CONVICT ON PROBATION FOR AN
UNCOMMENCED TERM, AFTER SERVICE OF AN EARLIER TERM HAS BEGUN, HAS NOT
BEEN CLEARLY GIVEN.  THEREFORE, IN CONSTRUING THE PROVISIONS FOR
PROBATION, WE ADHERE TO THE MURRAY INTERPRETATION TO AVOID INTERFERENCE
WITH THE PAROLE AND CLEMENCY POWERS VESTED IN THE EXECUTIVE BRANCH. 
(FN12)  WE CONCLUDE THAT THE PROBATIONARY POWER CEASES WITH RESPECT TO
ALL OF THE SENTENCES COMPOSING A SINGLE CUMULATIVE SENTENCE IMMEDIATELY
UPON IMPRISONMENT FOR ANY PART OF THE CUMULATIVE SENTENCE.  (FN13) 

WE NOTE THE ARGUMENT THAT SINCE CONGRESS HAS AUTHORIZED THE
SENTENCING COURT TO LIMIT PROBATION TO LESS THAN ALL OF THE TERMS OF A
CUMULATIVE SENTENCE, (FN14) IT SHOULD FOLLOW THAT THE PROBATION POWERS
FOR EACH TERM EXIST UNTIL THAT TERM IS BEGUN.  BUT THE POWER TO LIMIT A
GRANT OF PROBATION TO LESS THAN AN ENTIRE CUMULATIVE SENTENCE DOES NOT
COMPEL A CONCLUSION THAT THE POWER TO GRANT PROBATION AS TO EACH OF THE
SEPARATE SENTENCES EXISTS UNTIL THE CONVICT BEGINS TO SERVE EACH.  WE
THINK, MOREOVER, THIS ARGUMENT IS MET BY OUR CONCLUSION THAT THE
PROVISIONS FOR PROBATION SHOULD BE INTERPRETED TO AVOID, SO FAR AS
POSSIBLE, DUPLICATING OTHER EXISTING PROVISIONS FOR THE MITIGATION OF
CRIMINAL SENTENCES.  SEE NOTE 12, SUPRA. 

CONGRESS HAS DONE NOTHING SINCE THIS COURT'S DECISION IN UNITED
STATES V. MURRAY, SUPRA, TO INDICATE THAT PROBATION POWER SHOULD BE
APPLIED AFTER THE BEGINNING OF ANY TERM OF A SENTENCE.  AFFIRMED. 

FN1  221 F.2D 150. 

FN2  349 U.S. 951. 

FN3  THE FOURTH CIRCUIT APPEARS TO BE IN ACCORD WITH THE EIGHTH
CIRCUIT ON THIS QUESTION.  MANN V. UNITED STATES, 218 F.2D 936.  THE
TENTH CIRCUIT, OBITER DICTUM, IN WHITE V. STEIGLEDER, 37 F.2D 858, 859,
IS IN ACCORD WITH THE NINTH CIRCUIT.  SEE ALSO KELLEY V. UNITED STATES,
209 F.2D 638. 

FN4  43 STAT. 1259. 

FN5  THE POWER EXTENDED TO SENTENCES FOR CONVICTIONS FOR ANY OFFENSE
NOT PUNISHABLE BY DEATH OR LIFE IMPRISONMENT, AND THE EXERCISE OF THE
POWER WAS DISCRETIONARY AND CONDITIONED UPON THE ENDS OF JUSTICE AND
THE BEST INTERESTS OF THE PUBLIC AND THE DEFENDANT. 

FN6  THE MURRAY DECISION EMBRACED TWO CASES CONSOLIDATED FOR
ARGUMENT.  IN ONE OF THE CASES THE DISTRICT COURT HAD SUSPENDED A THREE
MONTH PRISON SENTENCE AND PLACED THE CONVICT (MURRAY) ON PROBATION ONE
DAY AFTER HE HAD COMMENCED SERVING THE SENTENCE.  IN THE OTHER CASE THE
PRISONER (COOK) HAD BEEN SENTENCED TO "A TOTAL OF FOURTEEN YEARS AND
NINE MONTHS" IMPRISONMENT, AND THE DISTRICT COURT SUSPENDED THE
REMAINDER OF HIS SENTENCE AND PLACED HIM ON PROBATION AFTER HE HAD
SERVED APPROXIMATELY TWO YEARS OF THE SENTENCE. 

WHETHER COOK'S SENTENCE WAS IN FACT A CUMULATIVE SENTENCE OF A NUMBER
OF CONSECUTIVE SENTENCES (SEE PHILLIPS V. UNITED STATES, 212 F.2D 327,
332) IS UNIMPORTANT AT THIS TIME.  HIS SENTENCE WAS TREATED AS IF IT
HAD BEEN A SINGLE GENERAL SENTENCE. 

FN7  62 STAT. 842, 18 U.S.C. SEC. 3651. 

FN8  H.R. REP. NO. 304, 80TH CONG., 1ST SESS., APP. A173. 

FN9  ID., AT 9. 

FN10  SEE KIRK V. UNITED STATES, 185 F.2D 185, 188. 

FN11  SEE NOTE 6, SUPRA. 

FN12  THAT A CONTRARY CONSTRUCTION WOULD RESULT IN AN UNNECESSARY
OVERLAP BETWEEN PROBATION AND PAROLE PROVISIONS IS MADE CLEAR BY A
REFERENCE TO 18 U.S.C. SEC. 4202.  THAT SECTION PROVIDES THAT A FEDERAL
PRISONER MAY BE PAROLED AFTER HE HAS SERVED ONE-THIRD OF THE "TERM OR
TERMS" FOR WHICH HE IS CONFINED.  THUS, IF SERVING A CUMULATIVE
SENTENCE COMPOSED OF TWO OR MORE CONSECUTIVE SENTENCES, A PRISONER IS
ELIGIBLE FOR PAROLE WHEN HE HAS SERVED ONE-THIRD OF THE TOTAL
SENTENCE.  SEE ALSO 18 U.S.C. SEC. 4161, WHICH PROVIDES THAT "WHEN TWO
OR MORE CONSECUTIVE SENTENCES ARE TO BE SERVED, THE AGGREGATE OF THE
SEVERAL SENTENCES SHALL BE THE BASIS" FOR COMPUTING TIME OFF FOR GOOD
BEHAVIOR. 

FN13  THIS CONCLUSION AS TO THE MEANING OF THE STATUTE IS FURTHER
SUPPORTED BY A RECOGNITION OF SOME OF THE PRACTICALITIES OF
SENTENCING.  AT THE TIME OF ENTERING A JUDGMENT OF CONVICTION, THE
DISTRICT JUDGE IS IN THE BEST POSITION TO FIX THE TERMS OF A CONVICT'S
SENTENCE.  THEREAFTER, HOWEVER, THE JUDGE BECOMES PROGRESSIVELY LESS
FAMILIAR WITH THE CONSIDERATIONS MATERIAL TO THE ADJUSTMENT OF THE
PUNISHMENT TO FIT THE CRIMINAL.  AT THE SAME TIME, THE OFFICIALS OF THE
EXECUTIVE BRANCH RESPONSIBLE FOR THESE MATTERS BECOME PROGRESSIVELY
BETTER QUALIFIED TO MAKE THE PROPER ADJUSTMENTS.  CF. UNITED STATES V.
SOEDER, 120 F. SUPP. 594, 597; UNITED STATES V. BERNETT, 123 F. SUPP.
841, 846.  THESE CONSIDERATIONS APPLY AS MUCH TO A SERIES OF
CONSECUTIVE SENTENCES AS TO A SIMPLE GENERAL SENTENCE. 

BUT SEE NOTE, APLLICATION OF FEDERAL PROBATION TO CONVICTS SERVING
CONSECUTIVE SENTENCES, 64 YALE L.J. 260, 265-268 (1954). 

FN14  18 U.S.C. SEC. 3651.  THE PROVISION FOR PROBATION "LIMITED TO
ONE OR MORE COUNTS OR INDICTMENTS" WAS ADDED BY THE 1948 CONDIFICATION
OF TITLE 18.  THE REVISER'S NOTES INDICATE THAT THIS PROVISION WAS
ADDED BECAUSE IT "REFLECTS EXACTLY THE PRACTICE FOLLOWED BY THE FEDERAL
COURTS."  H.R. REP. NO. 304, 80TH CONG., 1ST SESS., APP. A173.  THUS,
THIS ADDITION DID NOT RESULT IN A SUBSTANTIVE CHANGE IN THE PROBATION
ACT AND DOES NOT OF ITSELF REVEAL ANY EXTENSION THEREOF. 
..END :






REECE V. GEORGIA 350 U.S. 85 


NO. 112.  ARGUED NOVEMBER 9, 1955 - DECIDED DECEMBER 5, 1955 - 211 GA.
339, 85 S.E.2D 773, REVERSED AND REMANDED. 


1.  GEORGIA LAW REQUIRES THAT OBJECTIONS OF A DEFENDANT TO THE
COMPOSITION OF A GRAND JURY BE RAISED BEFORE INDICTMENT.  PETITIONER, A
NEGRO OF LOW MENTALITY, WAS INDICTED AND CONVICTED OF A CAPITAL
OFFENSE, BUT WAS NOT PROVIDED WITH COUNSEL UNTIL THE DAY AFTER HE WAS
INDICTED.  BEFORE HIS ARRAIGNMENT, PETITIONER MOVED TO QUASH THE
INDICTMENT ON THE GROUND THAT NEGROES HAD BEEN SYSTEMATICALLY EXCLUDED
FROM SERVICE ON THE GRAND JURY.  THIS MOTION WAS DENIED ON THE GROUND
THAT IT WAS MADE TOO LATE.  HELD:  FAILURE TO CONSIDER THE MOTION TO
QUASH ON ITS MERITS WAS A DENIAL OF DUE PROCESS OF LAW AND VIOLATED THE
FOURTEENTH AMENDMENT.  PP. 87-90. 

(A)  THE INDICTMENT OF A DEFENDANT BY A GRAND JURY FROM WHICH MEMBERS
OF HIS RACE HAVE BEEN SYSTEMATICALLY EXCLUDED IS A DENIAL OF HIS RIGHT
TO EQUAL PROTECTION OF THE LAWS.  P. 87. 

(B)  WHERE NO OPPORTUNITY TO CHALLENGE THE GRAND-JURY SELECTION HAS
BEEN AFFORDED A DEFENDANT, HIS RIGHT MAY BE ASSERTED BY A PLEA IN
ABATEMENT OF A MOTION TO QUASH BEFORE ARRAIGNMENT.  P. 87. 

(C)  ASSIGNMENT OF COUNSEL IN A STATE PROSECUTION AT SUCH TIME AND
UNDER SUCH CIRCUMSTANCES AS TO PRECLUDE THE GIVING OF EFFECTIVE AID IN
THE PREPARATION AND TRIAL OF A CAPITAL CASE IS A DENIAL OF DUE PROCESS
OF LAW.  PP. 89-90. 

2.  THIS CASE BEING PROPERLY HERE UPON REVIEW OF THE SECOND JUDGMENT
OF THE GEORGIA SUPREME COURT THEREIN, THIS COURT HAS JURISDICTION TO
CONSIDER ALL OF THE SUBSTANTIAL FEDERAL QUESTIONS DETERMINED IN THE
EARLIER STAGES OF THE LITIGATION, AND RE-EXAMINATION OF SUCH QUESTIONS
HERE IS UNAFFECTED BY A RULING OF THE STATE COURT THAT ITS FIRST
DECISION BECAME THE LAW OF THE CASE.  P. 87. 

REECE V. GEORGIA. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AMOS REECE, A NEGRO, WAS CONVICTED OF THE RAPE OF A WHITE
WOMAN IN COBB COUNTY, GEORGIA.  HE CONTENDS HERE THAT GEORGIA'S RULE OF
PRACTICE REQUIRING HIM TO CHALLENGE THE COMPOSITION OF THE GRAND JURY
BEFORE INDICTMENT VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THE GEORGIA SUPREME COURT AFFIRMED HIS CONVICTION, 211 GA.
339, 85 S.E.2D 773, AND WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANT
ISSUES INVOLVED, 349 U.S. 944. 

REECE WAS ARRESTED ON OCTOBER 20, 1953, AND WAS HELD IN THE COUNTY
JAIL UNTIL HIS INDICTMENT THREE DAYS LATER.  ON OCTOBER 24, THE DAY
AFTER HIS INDICTMENT, TWO LOCAL ATTORNEYS WERE APPOINTED BY THE TRIAL
COURT TO DEFEND HIM.  ON OCTOBER 30, BEFORE HIS ARRAIGNMENT, REECE
MOVED TO QUASH THE INDICTMENT ON THE GROUND THAT NEGROES HAD BEEN
SYSTEMATICALLY EXCLUDED FROM SERVICE ON THE GRAND JURY.  THIS MOTION
WAS OVERRULED AFTER A HEARING.  ON THE SAME DAY, PETITIONER WAS TRIED,
CONVICTED AND SENTENCED TO BE ELECTROCUTED.  THE SUPREME COURT OF
GEORGIA HELD THAT THE MOTION TO QUASH WAS PROPERLY DENIED BECAUSE, BY
GEORGIA PRACTICE, OBJECTIONS TO A GRAND JURY MUST BE MADE BEFORE THE
INDICTMENT IS RETURNED, 210 GA. 578, 82 S.E.2D 10, BUT REVERSED THE
CASE ON ANOTHER GROUND, NOT PERTINENT HERE, AND REMANDED IT FOR A NEW
TRIAL. 

BEFORE HIS SECOND TRIAL REECE FILED A SPECIAL PLEA IN ABATEMENT WHICH
ALLEGED SYSTEMATIC EXCLUSION OF NEGROES FROM THE JURY COMMISSION, THE
GRAND JURY WHICH INDICTED HIM AND THE PETIT JURY ABOUT TO BE PUT UPON
HIM.  THIS PLEA ALSO STATED THAT PETITIONER HAD NEITHER KNOWLEDGE OF
THE GRAND JURY NOR THE BENEFIT OF COUNSEL BEFORE HIS INDICTMENT.  THE
STATE'S DEMURRER TO THIS PLEA WAS SUSTAINED, AND PETITIONER WAS AGAIN
TRIED, CONVICTED AND SENTENCED TO BE ELECTROCUTED.  IT IS THIS JUDGMENT
WHICH IS HERE FOR REVIEW. 

AT THE OUTSET THE STATE CONTENDS THAT THE CASE IS NOT PROPERLY BEFORE
US BECAUSE PETITIONER DID NOT APPLY FOR A WRIT OF CERTIORARI WITHIN 90
DAYS AFTER THE FIRST JUDGMENT OF THE SUPREME COURT OF GEORGIA.  THIS
CONTENTION IS CLEARLY WITHOUT SUBSTANCE.  A TIMELY APPLICATION FOR
CERTIORARI TO REVIEW THE SECOND JUDGMENT WAS MADE, AND THE CASE IS
PROPERLY HERE.  28 U.S.C. SEC. 1257.  WE HAVE JURISDICTION TO CONSIDER
ALL OF THE SUBSTANTIAL FEDERAL QUESTIONS DETERMINED IN THE EARLIER
STAGES OF THE LITIGATION, URIE V. THOMPSON, 337 U.S. 163, 172-173, AND
OUR RIGHT TO RE-EXAMINE SUCH QUESTIONS IS NOT AFFECTED BY A RULING THAT
THE FIRST DECISION OF THE STATE COURT BECAME THE LAW OF THE CASE, DAVIS
V. O'HARA, 266 U.S. 314. 

THIS COURT OVER THE PAST 50 YEARS HAS ADHERED TO THE VIEW THAT VALID
GRAND-JURY SELECTION IS A CONSTITUTIONALLY PROTECTED RIGHT.  THE
INDICTMENT OF A DEFENDANT BY A GRAND JURY FROM WHICH THE MEMBERS OF HIS
RACE HAVE BEEN SYSTEMATICALLY EXCLUDED IS A DENIAL OF HIS RIGHT TO
EQUAL PROTECTION OF THE LAWS.  PATTON V. MISSISSIPPI, 332 U.S. 463;
NORRIS V. ALABAMA, 294 U.S. 587; ROGERS V. ALABAMA, 192 U.S. 226;
CARTER V. TEXAS, 177 U.S. 442.  WHERE NO OPPORTUNITY TO CHALLENGE THE
GRAND-JURY SELECTION HAS BEEN AFFORDED A DEFENDANT, HIS RIGHT MAY BE
ASSERTED BY A PLEA IN ABATEMENT OF A MOTION TO QUASH BEFORE
ARRAIGNMENT, UNITED STATES V. GALE, 109 U.S. 65, 72.  OF COURSE, IF
SUCH A MOTION IS CONTROVERTED IT MUST BE SUPPORTED BY EVIDENCE, PATTON
V. MISSISSIPPI, SUPRA; MARTIN V. TEXAS, 200 U.S. 316. 

WE MENTION THESE PRINCIPLES SINCE THE STATE CONTESTS THE MERITS OF
REECE'S CLAIM OF SYSTEMATIC EXCLUSION.  IN THE HEARING ON HIS MOTION TO
QUASH BEFORE THE FIRST TRIAL, HE PRESENTED UNCONTRADICTED EVIDENCE TO
SUPPORT THE FOLLOWING FACTS:  NO NEGRO HAD SERVED ON THE GRAND JURY IN
COBB COUNTY FOR THE PREVIOUS 18 YEARS; THE 1950 CENSUS SHOWED THAT THE
COUNTY HAD A WHITE POPULATION OF 55,606 AND A NEGRO POPULATION OF
6,224; THE SAME CENSUS SHOWED A POPULATION OF 16,201 MALE WHITE
CITIZENS OVER 21 YEARS OF AGE, AND 1,710 MALE NEGRO CITIZENS OVER 21
YEARS OF AGE.  PETITIONER'S MOTION ALLEGED, AND THIS WAS NOT
CONTRADICTED, THAT THERE WERE 534 NAMES ON THE GRAND-JURY LIST AND OF
THIS NUMBER ONLY SIX WERE NEGROES.  OF THE SIX NEGROES, ONE DID NOT
RESIDE IN THE COUNTY AND THE OTHER FIVE TESTIFIED IN THIS PROCEEDING. 
TWO WERE OVER 80 YEARS OF AGE:  ONE WAS PARTIALLY DEAF AND THE OTHER IN
POOR HEALTH.  THE REMAINING THREE WERE 62 YEARS OF AGE.  EACH OF THE
WITNESSES HAD LIVED IN THE COUNTY FOR AT LEAST 30 YEARS.  NONE HAD EVER
SERVED ON A GRAND JURY NOR HEARD OF ANY OTHER NEGRO SERVING ON A GRAND
JURY IN THE COUNTY.  THE CLERK AND DEPUTY CLERK OF THE COURT TESTIFIED
THAT THE JURY BOXES HAD BEEN REVISED IN 1952, THAT THERE WAS NO
DISCRIMINATION OR SYSTEMATIC EXCLUSION OF NEGROES FROM THE GRAND-JURY
LIST, THAT SIX NEGROES WERE ON THE LIST, AND THAT NEITHER HAD EVER
KNOWN A NEGRO TO SERVE ON A GRAND JURY IN COBB COUNTY. 

THIS EVIDENCE, WITHOUT MORE, IS SUFFICIENT TO MAKE A STRONG SHOWING
OF SYSTEMATIC EXCLUSION.  THE SIZABLE NEGRO POPULATION IN THE COUNTY,
THE FACT THAT ALL-WHITE JURIES HAD BEEN SERVING FOR AS LONG AS
WITNESSES COULD REMEMBER, AND THE SELECTION ON THE JURY LIST OF A
RELATIVELY FEW NEGROES WHO WOULD PROBABLY BE DISQUALIFIED FOR ACTUAL
JURY SERVICE ALL POINT TO A DISCRIMINATION "INGENIOUS OR INGENUOUS,"
SMITH V. TEXAS, 311 U.S. 128, 132.  THIS EVIDENCE PLACED THE BURDEN ON
THE STATE TO REFUTE IT, PATTON V. MISSISSIPPI, SUPRA, AND MERE
ASSERTIONS OF PUBLIC OFFICIALS THAT THERE HAS NOT BEEN DISCRIMINATION
WILL NOT SUFFICE.  SEE HERNANDEZ V. TEXAS, 347 U.S. 475.  HOWEVER, WE
DO NOT DECIDE THIS ISSUE.  IT IS SUFFICIENT TO SAY THAT PETITIONER'S
MOTION STATED AND HIS EVIDENCE SUPPORTED A PRIMA FACIE CONSTITUIONAL
CLAIM. 

GEORGIA'S RULE OF PRACTICE PROVIDES THAT WHEN AN "ACCUSED HAS BEEN
ARRESTED FOR THE COMMISSION OF A PENAL OFFENSE AND IS COMMITTED TO
JAIL, HE IS APPRISED OF THE FACT THAT HIS CASE OR THE CHARGE AGAINST
HIM WILL UNDERGO GRAND-JURY INVESTIGATION, AND IT IS INCUMBENT UPON HIM
TO RAISE OBJECTIONS TO THE COMPETENCY OF THE GRAND JURORS BEFORE THEY
FIND AN INDICTMENT AGAINST HIM."  REECE V. STATE, 210 GA. 578, 82
S.E.2D 10.  THIS RULE GOES BACK TO 1882, WILLIAMS V. STATE, 69 GA. 11,
AND HAS BEEN CONSISTENTLY FOLLOWED IN THAT STATE.  A SIMILAR
REQUIREMENT WAS CONSIDERED BY THIS COURT IN CARTER V. TEXAS, 177 U.S.
442.  IN THAT CASE THE TEXAS CODE OF CRIMINAL PROCEDURE PROVIDED THAT A
CHALLENGE TO THE ARRAY MUST BE MADE BEFORE THE GRAND JURY WAS IMPANELED
AND THAT ANYONE CONFINED IN THE JAIL AT THE TIME WOULD, AT HIS REQUEST,
BE BROUGHT INTO COURT TO MAKE SUCH CHALLENGE.  THE DEFENDANT IN CARTER
MOVED TO QUASH THE INDICTMENT AFTER THE GRAND JURY HAD BEEN IMPANELED
BUT BEFORE HIS ARRAIGNMENT.  SINCE THE GRAND JURY HAD BEEN IMPANELED
BEFORE THE COMMISSION OF THE OFFENSE FOR WHICH THE DEFENDANT WAS
INDICTED, THIS COURT HELD THAT HE "NEVER HAD ANY OPPORTUNITY TO
CHALLENGE THE ARRAY OF THE GRAND JURY, AND WAS ENTITLED TO PRESENT THE
OBJECTION ON WHICH HE RELIED BY MOTION TO QUASH."  177 U.S., AT 447. 
IN THE PRESENT CASE, AS IN CARTER, THE RIGHT TO OBJECT TO A GRAND JURY
PRESUPPOSES AN OPPORTUNITY TO EXERCISE THAT RIGHT.  GALE V. UNITED
STATES, 109 U.S. 65, 72.  MICHEL V. LOUISIANA, POST, P. 91. 

WE MAY NOW TURN TO THE PRESENT CASE TO SEE IF REECE WAS AFFORDED SUCH
OPPORTUNITY.  HE WAS INDICTED BY A GRAND JURY THAT WAS IMPANELED AND
SWORN EIGHT DAYS BEFORE HIS ARREST.  IT ADJOURNED THE DAY BEFORE HIS
ARREST AND WAS RECONVENED TWO DAYS LATER BY AN ORDER WHICH DID NOT LIST
HIM AS ONE AGAINST WHOM A CASE WOULD BE PRESENTED.  REECE IS A SEMI
ILLITERATE NEGRO OF LOW MENTALITY.  WE NEED NOT DECIDE WHETHER, WITH
THE ASSISTANCE OF COUNSEL, HE WOULD HAVE HAD AN OPPORTUNITY TO RAISE
HIS OBJECTION DURING THE TWO DAYS HE WAS IN JAIL BEFORE INDICTMENT. 
BUT IT IS UTTERLY UNREALISTIC TO SAY THAT HE HAD SUCH OPPORTUNITY WHEN
COUNSEL WAS NOT PROVIDED FOR HIM UNTIL THE DAY AFTER HE WAS INDICTED. 
IN POWELL V. ALABAMA, 287 U.S. 45, THIS COURT HELD THAT THE ASSIGNMENT
OF COUNSEL IN A STATE PROSECUTION AT SUCH TIME AND UNDER SUCH
CIRCUMSTANCES AS TO PRECLUDE THE GIVING OF EFFECTIVE AID IN THE
PREPARATION AND TRIAL OF A CAPITAL CASE IS A DENIAL OF DUE PROCESS OF
LAW.  THE EFFECTIVE ASSISTANCE OF COUNSEL IN SUCH A CASE IS A
CONSTITUTIONAL REQUIREMENT OF DUE PROCESS WHICH NO MEMBER OF THE UNION
MAY DISREGARD.  GEORGIA SHOULD HAVE CONSIDERED REECE'S MOTION TO QUASH
ON ITS MERITS. 

IN VIEW OF THIS DISPOSITION, IT IS NOT NECESSARY THAT WE CONSIDER
OTHER ISSUES FIRST RAISED BY REECE IN HIS PLEA IN ABATEMENT AT THE
SECOND TRIAL. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 
..END :























MICHEL V. LOUISIANA 350 U.S. 91 


NO. 32.  ARGUED NOVEMBER 8-9, 1955 - DECIDED DECEMBER 5, 1955 - 225 LA.
1040, 74 SO. 2D 207, AND 226 LA. 201, 75 SO. 2D 333, AFFIRMED. 


1.  LOUISIANA LAW REQUIRES THAT OBJECTIONS TO A GRAND JURY BE RAISED
BEFORE THE EXPIRATION OF THE THIRD JUDICIAL DAY FOLLOWING THE END OF
THE GRAND JURY'S TERM OR BEFORE TRIAL, WHICHEVER IS EARLIER.   AFTER
EXPIRATION OF THE TIME ALLOWED, THESE THREE NEGRO PETITIONERS MOVED TO
QUASH THEIR INDICTMENTS ON THE GROUND THAT THERE WAS SYSTEMATIC
EXCLUSION OF NEGROES FROM THE GRAND JURIES WHICH INDICATED THEM.  THEIR
MOTIONS WERE DENIED AND EACH WAS CONVICTED OF A CAPITAL OFFENSE.  HELD:
IN THE CIRCUMSTANCES OF THESE CASES, APPLICATION OF THE RULE TO THESE
PETITIONERS DID NOT VIOLATE THE FOURTEENTH AMENDMENT.  PP. 91-102. 

2.  MICHEL WAS INDICTED ON FEBRUARY 19 AND PRESENTED FOR ARRAIGNMENT
ON FEBRUARY 23.  HE APPEARED WITHOUT COUNSEL, AND ARRAIGNMENT WAS
CONTINUED FOR ONE WEEK.  THE RECORD SHOWS THAT COUNSEL WAS APPOINTED
FOR HIM ON MARCH 2, THE DATE THE GRAND-JURY TERM EXPIRED.  COUNSEL
CONTENDED THAT HE DID NOT CONSIDER HIMSELF APPOINTED UNTIL MARCH 5,
WHEN HE RECEIVED WRITTEN NOTICE FROM THE COURT.  THE MOTION TO QUASH,
NOT FILED UNTIL MARCH 9, WAS DENIED AS BEING OUT OF TIME.  HELD:  THE
FINDING OF THE LOWER COURTS THAT COUNSEL WAS APPOINTED MARCH 2 IS
SUSTAINED.  SINCE THE APPOINTED COUNSEL, A LAWYER EXPERIENCED IN STATE
CRIMINAL PRACTICE, HAD ADEQUATE TIME TO FILE THE MOTION AFTER HIS
APPOINTMENT, APPLICATION OF THE RULE WAS NOT UNREASONABLE.  PP. 95-96. 

3.  PORET FLED FROM THE STATE SHORTLY AFTER THE CRIME WAS COMMITTED
AND REMAINED OUTSIDE THE STATE UNTIL LONG AFTER THE TIME FOR FILING A
MOTION TO QUASH HIS INDICTMENT HAD EXPIRED.  AFTER RETURNING TO THE
STATE ON OCTOBER 3 AND RETAINING COUNSEL ON OCTOBER 26, HE DID NOT FILE
HIS MOTION TO QUASH UNTIL NOVEMBER 7 - AFTER HE HAD BEEN ARRAIGNED AND
HAD FILED OTHER MOTIONS WHICH IMPLIED A WAIVER OF HIS OBJECTIONS TO THE
GRAND JURY.  HELD:  LOUISIANA'S RULE REQUIRING TIMELY OBJECTIONS TO THE
COMPOSITION OF A GRAND JURY NEED NOT BE SUSPENDED FOR THE BENEFIT OF
ONE WHO, BY HIS OWN ACTION, FAILS TO AVAIL HIMSELF TO THE STATE REMEDY;
AND THERE WAS NO VIOLATION OF DUE PROCESS IN DENYING THE MOTION AS OUT
OF TIME.  PP. 96-100. 

4.  LABAT WAS INDICTED DECEMBER 11, 1950, AND ARRAIGNED ON JANUARY 3,
1951.  ON JANUARY 5, 1951, THE COURT APPOINTED COMPETENT COUNSEL FOR
HIM AND THE TERM OF THE GRAND JURY THAT HAD INDICTED HIM DID NOT EXPIRE
UNTIL MARCH 1951.  IN JANUARY 1952, COURT-APPOINTED COUNSEL WITHDREW
FROM THE CASE AND ANOTHER COUNSEL WAS APPOINTED; BUT MOTION TO QUASH
THE INDICTMENT WAS NOT MADE UNTIL NOVEMBER 7, 1952.  HELD:  INADEQUACY
OF COUNSEL WILL NOT BE PRESUMED FROM FAILURE TO FILE A PRETRIAL MOTION
WHERE THE MATTER WAS WITHIN COUNSEL'S DISCRETION AND THERE WERE VALID
REASONS FOR NOT FILING.  IN THE CIRCUMSTANCES OF THIS CASE, THERE WAS
NO VIOLATION OF DUE PROCESS IN DENYING THE MOTION AS OUT OF TIME.  PP.
100-101. 

MICHEL V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA.* 

*TOGETHER WITH NO. 36, PORET ET AL. V. LOUISIANA, ALSO ON CERTIORARI
TO THE SAME COURT, ARGUED NOVEMBER 9, 1955. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

LOUISIANA REQUIRES THAT OBJECTIONS TO A GRAND JURY BE RAISED BEFORE
THE EXPIRATION OF THE THIRD JUDICIAL DAY FOLLOWING THE END OF THE GRAND
JURY'S TERM OR BEFORE TRIAL, WHICHEVER IS EARLIER.  (FN1)  IN THESE
CASES WE ARE ASKED TO DECIDE WHETHER THIS STATUTE AS APPLIED VIOLATES
THE FOURTEENTH AMENDMENT.  THE THREE PETITIONERS, ALL NEGROES SENTENCED
TO DEATH FOR AGGRAVATED RAPE, MAKE NO ATTACK ON THE COMPOSITION OF THE
PETIT JURY NOR ON THE FAIRNESS OF THEIR TRIALS BUT CHALLENGE THE
COMPOSITION OF THE GRAND JURIES WHICH INDICTED THEM ON THE GROUND THAT
THERE WAS A SYSTEMATIC EXCLUSION OF NEGROES FROM THE PANELS.  NO
HEARING WAS HELD ON THESE ALLEGATIONS BECAUSE THE LOWER COURTS FOUND
THAT THE QUESTION HAD BEEN WAIVED.  IN EACH CASE THE SUPREME COURT OF
LOUISIANA AFFIRMED, 225 LA. 1040, 74 SO. 2D 207, AND 226 LA. 201, 75
SO. 2D 333, AND WE GRANTED CERTIORARI, 348 U.S. 936 AND 950, BECAUSE OF
THE IMPORTANCE OF THE ISSUES INVOLVED. 

GRAND JURIES IN ORLEANS PARISH ARE IMPANELED IN SEPTEMBER AND MARCH
TO SERVE FOR SIX MONTHS.  SINCE SEC. 202 OF THE LOUISIANA CRIMINAL
CODE, AS INTERPRETED, REQUIRES A DEFENDANT TO OBJECT TO THE GRAND JURY
BEFORE THREE JUDICIAL DAYS AFTER ITS TERM, THE TIME TO RAISE SUCH
OBJECTIONS MAY VARY FROM A MINIMUM OF THREE DAYS - IF THE DEFENDANT IS
INDICTED ON THE LAST DAY OF THE TERM - TO A MUCH LONGER PERIOD IF HE IS
INDICTED DURING THE TERM.  SECTION 284 OF THE LOUISIANA CODE OF
CRIMINAL PROCEDURE PROVIDES THAT IN ANY CASE SUCH OBJECTIONS MUST BE
MADE BEFORE ARRAIGNMENT. 

WE DO NOT FIND THAT THIS REQUIREMENT ON ITS FACE RAISES AN
INSUPERABLE BARRIER TO ONE MAKING CLAIM TO FEDERAL RIGHTS.  THE TEST IS
WHETHER THE DEFENDANT HAS HAD "A REASONABLE OPPORTUNITY TO HAVE THE
ISSUE AS TO THE CLAIMED RIGHT HEARD AND DETERMINED BY THE STATE
COURT."  PARKER V. ILLINOIS, 333 U.S. 571, 574; DAVIS V. WECHSLER, 263
U.S. 22; CENTRAL UNION CO. V. EDWARDSVILLE, 269 U.S. 190; PATERNO V.
LYONS, 334 U.S. 314.  SEE CARTER V. TEXAS, 177 U.S. 442.  IN AVERY V.
ALABAMA, 308 U.S. 444, THIS COURT HELD THAT A LAPSE OF THREE DAYS
BETWEEN THE APPOINTMENT OF COUNSEL AND THE DATE OF TRIAL WAS NOT OF
ITSELF A DENIAL OF DUE PROCESS.  IN LOUISIANA A MOTION TO QUASH IS A
SHORT, SIMPLE DOCUMENT, EASILY PREPARED IN A SINGLE AFTERNOON.  (FN2)
IN THE LIGHT OF AVERY, A THREE-DAY MINIMUM FOR SUCH A MOTION IS NOT
UNREASONABLE.  WILSON V. LOUISIANA, 320 U.S. 714.  (FN3) BUT IN THE
CIRCUMSTANCES OF A PARTICULAR CASE, THE APPLICATION OF SUCH A RULE MAY
NOT GIVE A REASONABLE OPPORTUNITY TO RAISE THE FEDERAL QUESTION.  SEE
REECE V. GEORGIA, ANTE, P. 85, DECIDED THIS DAY.  ACCORDINGLY WE PASS
TO A CONSIDERATION OF THE FACTS IN EACH OF THESE CASES. 

NO. 32.  JOHN MICHEL.  - MICHEL WAS INDICTED BY THE GRAND JURY ON
FEBRUARY 19, 1953, AND WAS PRESENTED TO THE COURT FOR ARRAIGNMENT ON
FEBRUARY 23.  HE APPEARED WITHOUT COUNSEL AND THE ARRAIGNMENT WAS
CONTINUED FOR ONE WEEK.  DURING THAT WEEK, THE TRIAL JUDGE TALKED WITH
MR. SCHREIBER, A FORMER ASSISTANT DISTRICT ATTORNEY WITH WIDE
EXPERIENCE IN LOCAL CRIMINAL PRACTICE.  HE ASKED MR. SCHREIBER WHETHER
HE WOULD TAKE THE CASE IF PRIVATE COUNSEL WAS NOT RETAINED.  THE JUDGE
INDICATED THAT IF MR. SCHREIBER ACCEPTED, ADDITIONAL COUNSEL WOULD BE
APPOINTED. 

THE TERM OF THE GRAND JURY WHICH INDICTED MICHEL EXPIRED MARCH 2,
1953.  ON THE SAME DATE MICHEL APPEARED AGAIN FOR ARRAIGNMENT WITHOUT
COUNSEL.  MR. SCHREIBER WAS ALSO PRESENT IN COURT ON OTHER BUSINESS AND
THE TRIAL JUDGE THEN APPOINTED HIM COUNSEL FOR MICHEL.  WHEREUPON MR.
SCHREIBER ASKED THE COURT TO GIVE HIM AN OPPORTUNITY TO LOOK IT OVER
AND CONTINUE THE MATTER FOR ONE WEEK.  NO MENTION OF CO-COUNSEL WAS
MADE, AND THE CONTINUANCE WAS GRANTED. 

THEREAFTER, ON MARCH 5, MR. SCHREIBER RECEIVED A FORMAL NOTICE OF HIS
APPOINTMENT WHICH, THOUGH NOT REQUIRED BY LOUISIANA LAW, APPEARS AT
TIMES TO HAVE BEEN SERVED IN APPOINTMENT CASES.  ON MARCH 6, MR. FUST
WAS APPOINTED CO-COUNSEL.  THE MOTION TO QUASH THE INDICTMENT WAS FILED
ON MARCH 9 - FOUR DAYS AFTER MR. SCHREIBER RECEIVED THE FORMAL NOTICE
OF APPOINTMENT, AND FIVE JUDICIAL DAYS (7 CALENDAR DAYS) AFTER THE
EXPIRATION OF THE TERM OF THE GRAND JURY.  THE STATE DEMURRED ON THE
GROUND THAT IT CAME TOO LATE. 

THE DETERMINATION OF A SINGLE QUESTION OF FACT IS DECISIVE IN THIS
CASE:  THE PRECISE DATE OF APPOINTMENT OF COUNSEL FOR MICHEL.  IT IS
CONTENDED THAT MR. SCHREIBER WAS NOT APPOINTED AS COUNSEL UNTIL MARCH
5, THE DATE OF HIS FORMAL NOTICE; THAT HE WAS NOT AWARE THAT HE WAS TO
BE CHIEF COUNSEL UNTIL AFTER MR. FUST TOLD HIM ON THE 7TH OF HIS
APPOINTMENT TO "ASSIST" MR. SCHREIBER; AND THAT EVEN IF HE ASSUMED THAT
HE WAS APPOINTED ON MARCH 2, HE WAS UNFAMILIAR WITH THE CASE AND
THOUGHT THE WEEK'S CONTINUANCE HELD OPEN FOR THAT PERIOD ALL OF
PETITIONER'S RIGHTS.  THE RECORD, HOWEVER, SHOWS WITHOUT CONTRADICTION
THAT MR. SCHREIBER WAS APPOINTED IN OPEN COURT, IN THE PRESENCE OF
PETITIONER, ON MARCH 2.  THE TRIAL JUDGE SO FOUND AND THE SUPREME COURT
OF LOUISIANA EXPLICITLY UPHELD THIS FINDING.  WHILE SUCH FINDINGS ARE
NOT CONCLUSIVE ON THIS COURT, ROGERS V. ALABAMA, 192 U.S. 226, THEY ARE
ENTITLED TO GREAT WEIGHT, FAY V. NEW YORK, 332 U.S. 261, 272.  ON A
QUESTION OF STATE PRACTICE WITH WHICH WE ARE UNFAMILIAR, WE WILL NOT
ORDINARILY OVERTURN THE FINDINGS OF TWO COURTS ON THE MERE ASSERTION OF
COUNSEL THAT HE DID NOT CONSIDER HIMSELF APPOINTED ON THE DATE OF
RECORD.  SINCE WE FIND THAT COUNSEL, A LAWYER EXPERIENCED IN STATE
CRIMINAL PRACTICE, HAD ADEQUATE TIME TO FILE THE MOTION AFTER HIS
APPOINTMENT, WE HOLD THAT THE APPLICATION OF SEC. 202 IN THIS CASE WAS
NOT UNREASONABLE. 

NO. 36.  PORET AND LABAT.  - THESE CODEFENDANTS WERE ALSO CONVICTED
OF RAPE AND SENTENCED TO DEATH.   NEITHER MADE ANY ATTACK ON THE
COMPOSITION OF THE PETIT JURY, BUT BOTH FILED MOTIONS TO QUASH THEIR
INDICTMENTS CLAIMING DISCRIMINATION IN THE SELECTION OF THE GRAND-JURY
PANEL.  THE FACTS IN EACH CASE WILL BE CONSIDERED SEPARATELY. 

PORET. - SHORTLY AFTER THE CRIME WAS COMMITTED, PORET ELUDED POLICE
OFFICERS AND FLED THE STATE OF LOUISIANA.  HE WAS INDICTED ON DECEMBER
11, 1950, BUT HE WAS NOT ARRESTED AND NOTHING WAS KNOWN OF HIS
WHEREABOUTS UNTIL LATE 1951 WHEN LOUISIANA AUTHORITIES DISCOVERED THAT
HE WAS IN PRISON IN TENNESSEE.  THAT STATE REFUSED TO RELEASE HIM UNTIL
HE HAD SERVED HIS TERM.  LOUISIANA FILED A DETAINER AGAINST HIM, AND HE
WAS RETURNED TO NEW ORLEANS ON OCTOBER 3, 1952.  AT HIS ARRAIGNMENT ON
OCTOBER 27, 1952, HE WAS ASSISTED BY COUNSEL OF HIS OWN SELECTION.  HE
PLEADED NOT GUILTY TO THE INDICTMENT AND WAS GRANTED ADDITIONAL TIME TO
FILE A MOTION FOR SEVERANCE.  ON NOVEMBER 7, AFTER DENIAL OF HIS MOTION
FOR SEVERANCE, HE MOVED - FOR THE FIRST TIME - TO QUASH THE INDICTMENT
BECAUSE OF SYSTEMATIC EXCLUSION OF NEGROES FROM THE GRAND JURY.  AFTER
A HEARING AT WHICH IT WAS DETERMINED THAT PORET WAS A FUGITIVE FROM
JUSTICE, THIS MOTION WAS DENIED BY THE TRIAL COURT ON THE GROUND THAT
IT WAS FILED MORE THAN A YEAR AND A HALF TOO LATE.  UNDER SEC. 202, THE
TIME FOR FILING HAD EXPIRED IN MARCH 1951, AND THE TRIAL COURT HELD
THAT THE PROVISIONS OF SEC. 202 WOULD NOT BE "SUSPENDED OR NULLIFIED
FOR THE BENEFIT OF A FUGITIVE FROM JUSTICE WHO, BY HIS OWN CONDUCT" WAS
UNABLE TO ASSERT HIS RIGHT.  THE HOLDING WAS AFFIRMED ON THIS GROUND BY
THE SUPREME COURT OF LOUISIANA. 

IT IS BEYOND QUESTION THAT UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT LOUISIANA MAY ATTACH REASONABLE TIME LIMITATIONS
TO THE ASSERTION OF FEDERAL CONSTITUTIONAL RIGHTS.  (FN4)  MORE
PARTICULARLY, THE STATE MAY REQUIRE PROMPT ASSERTION OF THE RIGHT TO
CHALLENGE DISCRIMINATORY PRACTICES IN THE MAKE-UP OF THE GRAND JURY. 
THE PROBLEM HERE IS WHETHER SUCH A LIMITATION MAY BE AVOIDED BY PORET
SIMPLY ON THE SHOWING THAT HE WAS A FUGUTIVE FROM PROSECUTION
THROUGHOUT THE ENTIRE PERIOD PROVIDED HIM. 

PETITIONER ARGUES THAT HE HAS HAD NO OPPORTUNITY TO MAKE HIS
CHALLENGE TO THE GRAND JURY, SINCE THE TIME ALLOWED HIM BY SEC. 202 HAD
EXPIRED BEFORE HE WAS RETURNED TO LOUISIANA.  BUT THE RECORD SHOWS THAT
HE WAS NOT SENTENCED IN TENNESSEE UNTIL FIVE MONTHS AFTER THAT PERIOD
HAD EXPIRED, AND NOTHING APPEARS TO HAVE INTERVENED DURING THIS PERIOD
EXCEPT HIS OWN VOLUNTARY FLIGHT.  THUS PORET'S CLAIM IS, IN EFFECT,
THAT A FLIGHT WHICH ITSELF IS A VIOLATION OF FEDERAL LAW, 18 U.S.C.
SEC. 1073, IS CONVERTED INTO A FEDERAL IMMUNITY FROM THE OPERATION OF A
VALID STATE RULE.  WE DO NOT BELIEVE THAT THE MERE FUGITIVE STATUS
EXISTING HERE EXCUSES A FAILURE TO RESORT TO LOUISIANA'S ESTABLISHED
STATUTORY PROCEDURE AVAILABLE TO ALL WHO WISH TO ASSERT CLAIMED
CONSTITUTIONAL RIGHTS.  THIS IS NOT TO SAY THAT THE ACT OF FLEEING AND
BECOMING A FUGITIVE DEPRIVES ONE OF FEDERAL RIGHTS.  WE HOLD ONLY THAT
DUE REGARD FOR THE FAIR AS WELL AS EFFECTIVE ADMINISTRATION OF CRIMINAL
JUSTICE GIVES THE STATE A LEGITIMATE INTEREST IN REQUIRING REASONABLE
ATTACKS ON ITS INQUISITORIAL PROCESS (FN5) AND THAT THE PRESENT CASE IS
NOT ONE IN WHICH THIS INTEREST MUST BOW TO ESSENTIAL CONSIDERATIONS OF
FAIRNESS TO INDIVIDUAL DEFENDANTS. 

BUT IT IS SAID THAT PORET HAD NO LAWYER, EITHER BEFORE HE FLED THE
STATE OR DURING THE 87-DAY PERIOD FROM HIS INDICTMENT TO THE EXPIRATION
OF HIS TIME TO FILE UNDER SEC. 202.  HOWEVER, DURING ALL OF THIS TIME
HE REMAINED A FUGITIVE, AND THERE IS NO SHOWING THAT HE COULD HAVE
FILED IN TIME HAD HE NOT ELECTED TO FLEE.  IN FACT, IN EACH OF THE
OTHER CASES BEFORE US, THE COURT APPOINTED COUNSEL IN AMPLE TIME FOR
THOSE PETITIONERS TO RAISE THEIR CLAIMS.  WE CANNOT ASSUME THAT PORET
WOULD NOT HAVE RECEIVED LIKE TREATMENT IF HE HAD BEEN UNABLE TO SELECT
COUNSEL OF HIS OWN CHOICE.  WE, THEREFORE, CONCLUDE THAT PORET, BY HIS
OWN ACTION, FAILED TO AVAIL HIMSELF OF LOUISIANA'S ADEQUATE REMEDIES. 
"NO PROCEDURAL PRINCIPLE IS MORE FAMILIAR TO THIS COURT THAN THAT A
CONSTITUTIONAL RIGHT MAY BE FORFEITED IN CRIMINAL AS WELL AS CIVIL
CASES BY THE FAILURE TO MAKE TIMELY ASSERTION OF THE RIGHT  ...  ." 
YAKUS V. UNITED STATES, 321 U.S. 414, 444.  EVEN IN FEDERAL FELONY
CASES WHERE, UNLIKE STATE PROSECUTIONS, INDICTMENT BY A GRAND JURY IS A
MATTER OF RIGHT, THIS COURT HAS STRICTLY CIRCUMSCRIBED THE TIME WITHIN
WHICH MOTIONS ADDRESSED TO THE COMPOSITION OF THE GRAND JURY MAY BE
MADE.  FED. RULES CRIM. PROC., 12(B)(3).  LIKEWISE THE CONGRESS HAS
DENIED THE BENEFIT OF SUCH IMPORTANT FEDERAL PROCEDURAL RULES AS THE
STATUTE OF LIMITATIONS TO "ANY PERSON FLEEING FROM JUSTICE."  18 U.S.C.
SEC. 3290. 

PORET'S CASE AFFORDS A PERFECT ILLUSTRATION OF THE NECESSITY FOR
PROMPT DETERMINATION OF CLAIMS SUCH AS HE RAISES HERE.  FIVE YEARS HAVE
NOW ELAPSED SINCE THE CRIME WAS COMMITTED, AND THE DELAY HAS BEEN
LARGELY CAUSED BY PORET'S OWN ACTIONS.  EVEN IF AVAILABLE, AND MEMORY
PERMITTED, THE VICTIM AND CHIEF WITNESS WOULD BE RELUCTANT TO RETELL
THE SORDID STORY OF HER UNFORTUNATE EXPERIENCE.  PORET'S CONVICTION BY
A PETIT JURY WHOSE COMPOSITION HE DID NOT ATTACK HAS BEEN AFFIRMED BY
LOUISIANA'S HIGHEST COURT AND NO CONSTITUTIONAL CHALLENGE IS MADE HERE
TO THE FAIRNESS OF THAT TRIAL. 

FURTHERMORE, IT MAY BE ADDED THAT AFTER BEING RETURNED TO LOUISIANA
ON OCTOBER 3, AND EMPLOYING HIS PERSONAL LAWYER ON OCTOBER 26, PORET
STILL DID NOT FILE HIS MOTION TO QUASH UNTIL NOVEMBER 7.  AT THIS TIME
HE HAD ALREADY BEEN ARRAIGNED AND HAD FILED OTHER MOTIONS WHICH IMPLIED
A WAIVER OF HIS OBJECTIONS TO THE GRAND JURY.  RATHER THAN ASSERTING
HIS FEDERAL CLAIM AT THE FIRST OPPORTUNITY, (FN6) HE DELAYED THE FILING
OF HIS MOTION UNTIL 12 DAYS AFTER HIS SELECTION OF COUNSEL.  THIS IS
FOUR TIMES THE PERIOD WE UPHELD IN MICHEL.  WE, THEREFORE, FIND NO
VIOLATION OF DUE PROCESS IN DENYING THIS MOTION AS OUT OF TIME. 

LABAT. - EDGAR LABAT WAS PORET'S CODEFENDANT.  HE WAS APPREHENDED THE
EVENING OF THE CRIME, AND IMPLICATED PORET.  LABAT WAS INDICTED
DECEMBER 11, 1950, AND ARRAIGNED ON JANUARY 3, 1951, AND HE PLEADED NOT
GUILTY.  ON JANUARY 5 THE COURT APPOINTED MR. E.I.  MAHONEY AS COUNSEL
FOR PETITIONER.  THEREAFTER THE STATUS OF THE CASE REMAINED UNCHANGED
FOR MORE THAN A YEAR.  THE NEXT ENTRY IS DATED JANUARY 29, 1952, WHEN
MR. MAHONEY ASKED LEAVE TO WITHDRAW.  MR. GILL WAS THEREAFTER EMPLOYED,
AND ON JUNE 12, 1952, MOVED FOR A CONTINUANCE.  AFTER A HEARING, THE
MOTION WAS GRANTED AND THE CASE WAS AGAIN CONTINUED.  IN OCTOBER THE
CODEFENDANT PORET WAS RETURNED TO THE STATE.  LABAT FILED HIS MOTION TO
QUASH THE INDICTMENT ON NOVEMBER 7.  THE TERM OF THE GRAND JURY THAT
INDICTED LABAT HAD EXPIRED IN MARCH 1951. 

PETITIONER NOW CONTENDS THAT HE WAS DENIED EFFECTIVE REPRESENTATION
OF COUNSEL.  POWELL V. ALABAMA, 287 U.S. 45.  MR. MAHONEY HAD A
REASONABLE TIME IN WHICH TO FILE HIS MOTION TO QUASH, BUT DID NOT DO
SO.  IT WAS STATED ON ORAL ARGUMENT THAT HE WAS 76 OR 77 YEARS OLD WHEN
HE TOOK THE CASE, AND WAS ILL IN BED DURING SEVERAL MONTHS OF THE
YEAR.  THE TRIAL COURT AND THE SUPREME COURT OF LOUISIANA HELD THAT THE
FACTS DID NOT SHOW A LACK OF EFFECTIVE COUNSEL.  AS IN NO. 32, MICHEL'S
CASE, WE ACCEPT THESE FINDINGS.  THERE IS LITTLE SUPPORT FOR THE
OPPOSITE CONCLUSION IN THE RECORD.  MR. MAHONEY WAS A WELL-KNOWN
CRIMINAL LAWYER WITH NEARLY FIFTY YEARS' EXPERIENCE AT THE BAR.  THERE
IS NO EVIDENCE OF IMCOMPETENCE.  (FN7) THE MERE FACT THAT A TIMELY
MOTION TO QUASH WAS NOT FILED DOES NOT OVERCOME THE PRESUMPTION OF
EFFECTIVENESS.  FEELEY V. RAGEN, 166 F.2D 976.  THE DELAY MIGHT BE
CONSIDERED SOUND TRIAL STRATEGY, PARTICULARLY SINCE THE CODEFENDANT
COULD NOT BE FOUND.  WE CANNOT INFER LACK OF EFFECTIVE COUNSEL FROM
THIS CIRCUMSTANCE ALONE.  SUCH AN INFERENCE WOULD VITIATE STATE RULES
OF PROCEDURE DESIGNED TO REQUIRE PRELIMINARY OBJECTIONS TO BE DISPOSED
OF BEFORE TRIAL. 

AT ARGUMENT, PETITIONERS FOR THE FIRST TIME RAISED THE CONTENTION
THAT THE REQUIREMENTS OF SEC. 202 HAD BEEN APPLIED BY THE DISTRICT
ATTORNEY ONLY WHEN NEGRO DEFENDANTS ATTEMPTED TO ATTACK THE COMPOSITION
OF THE GRAND JURY.  THEY CITED TWO CASES IN WHICH THE DISTRICT ATTORNEY
HAD FAILED TO FILE DEMURRERS TO SUCH MOTIONS AND THE INDICTMENTS WERE
QUASHED AFTER THE TIME SET OUT IN THE STATUTE.  THE PRESENT DISTRICT
ATTORNEY, WHO HAD BEEN IN OFFICE SOME EIGHTEEN MONTHS BUT WAS NOT
SERVING AT THE TIME OF THESE PROSECUTIONS, STATED THAT IT WAS HIS
POLICY TO APPLY SEC. 202 WHENEVER POSSIBLE.  PETITIONER'S CONTENTION
WAS NOT RAISED BELOW, AND WE DO NOT BELIEVE IT HAS BEEN PROPERLY PUT IN
ISSUE, PENNSYLVANIA R. CO. V. ILLINOIS BUICK CO., 297 U.S. 447, 463. 
IF SUCH AN ALLEGATION HAD BEEN PRESENTED AND PRESERVED, AND FOUND
SUPPORT IN THE RECORD, WE MIGHT HAVE A VERY DIFFERENT CASE HERE.  SEE
ROGERS V. ALABAMA, 192 U.S. 226. 

FOR THE REASONS STATED THE JUDGMENTS OF THE SUPREME COURT OF
LOUISIANA ARE AFFIRMED. 

FN1  SECTION 202 OF THE LOUISIANA CODE OF CRIMINAL PROCEDURE, R.S.
SEC. 15:202, PROVIDES THAT: 

"ALL OBJECTIONS TO THE MANNER OF SELECTING OR DRAWING ANY JUROR OR
JURY OR TO ANY DEFECT OR IRREGULARITY THAT CAN BE PLEADED AGAINST ANY
ARRAY OR VENIRE MUST BE FILED, PLEADED, HEARD OR URGED BEFORE THE
EXPIRATION OF THE THIRD JUDICIAL DAY OF THE TERM FOR WHICH SAID JURY
SHALL HAVE BEEN DRAWN, OR BEFORE ENTERING UPON THE TRIAL OF THE CASE IF
IT BE BEGUN SOONER; OTHERWISE, ALL SUCH OBJECTIONS SHALL BE CONSIDERED
AS WAIVED AND SHALL NOT AFTERWARDS BE URGED OR HEARD." 

IN STATE V. WILSON, 204 LA. 24, 14 SO. 2D 873, APPEAL DISMISSED, 320
U.S. 714, THE SUPREME COURT OF LOUISIANA INTERPRETED THE PHRASE "THE
THIRD JUDICIAL DAY OF THE TERM" TO MEAN "THE THIRD JUDICIAL DAY
FOLLOWING THE TERM."  SUCH A CONSTRUCTION HAS BEEN ADHERED TO, STATE V.
CHIANELLI, 226 LA. 552, 76 SO. 2D 727, AND IS NOT OPEN TO ATTACK HERE. 

FN2  THE MOTION TO QUASH FILED IN MICHEL'S CASE IS AS FOLLOWS:

                                "MOTION TO QUASH 

"NOW INTO THIS HONORABLE COURT COMES JOHN MICHEL, DEFENDANT HEREIN,
AND HAVING HEARD THE INDICTMENT READ AND PROTESTING THAT HE IS NOT
GUILTY OF THE OFFENSE SET OUT THEREIN, MOVES TO QUASH THE SAID
INDICTMENT IN ITS ENTIRETY, AND TO QUASH AND SET ASIDE THE GENERAL
VENIRE INVOLVED HEREIN AND TO QUASH AND SET ASIDE THE GRAND JURY PANEL
HEREIN FOR THE REASON THAT IN THE PROCEEDINGS PRIOR TO AND ATTENDING
THE PRESENTMENT OF SAID INDICTMENT, MOVER WAS DEPRIVED OF DUE PROCESS
OF LAW AND EQUAL PROTECTION OF LAW AS GUARANTEED BY THE CONSTITUTION OF
THE UNITED STATES AND THE STATE OF LOUISIANA AS FOLLOWS: 

"1.  DEFENDANT IS A MEMBER OF THE COLORED RACE. 

"2.  THAT CONSIDERING THE NEGRO POPULATION OF THE PARISH OF ORLEANS
AND THE NUMBER OF NEGROES QUALIFIED FOR JURY SERVICE, THERE HAS BEEN
SYSTEMATIC, UNLAWFUL AND UNCONSTITUTIONAL EXCLUSION OF NEGROES FROM THE
GENERAL VENIRE AND GRAND JURY PANEL AND GRAND JURY INVOLVED IN THE
RETURNING OF THE INDICTMENT HEREIN; THAT SAID SYSTEMATIC, UNLAWFUL AND
UNCONSTITUTIONAL EXCLUSION OF NEGROES FROM SAID UNITS HAS EXISTED
CONTINUOUSLY PRIOR HERETO FOR A NUMBER OF YEARS IN THE PARISH OF
ORLEANS; THAT SAID EXCLUSION HAS EXISTED BECAUSE OF RACE OR COLOR; THAT
A NEGRO HAS NEVER SERVED ON A GRAND JURY IN THE PARISH OF ORLEANS; THAT
IN THOSE INSTANCES WHERE NEGROES HAVE BEEN INCLUDED IN THE GENERAL
VENIRE AND GRAND JURY PANELS REFERRED TO HEREIN, NEGROES HAVE BEEN
DISCRIMINATED AGAINST BY AN ARBITRARY AND INAPPORTIONATE LIMITING OF
THEIR NUMBER BY STATE OFFICIALS WHO HAVE NOT SUFFICIENTLY ACQUAINTED
THEMSELVES WITH THE QUALIFICATIONS OF ALL POTENTIAL JURORS. 

"WHEREFORE, THE SAID JOHN MICHEL PRAYS THAT THIS MOTION TO QUASH BE
MAINTAINED AND THAT THE SAID INDICTMENT, GENERAL VENIRE AND GRAND JURY
PANEL BE DECLARED NULL AND VOID AND THAT HE BE DISCHARGED FROM SAID
INDICTMENT." 

FN3  IN DISMISSING THE APPEAR FROM STATE V. WILSON, SUPRA, NO. 1, THE
COURT STATED:  "THE MOTION TO DISMISS IS GRANTED AND THE APPEAL IS
DISMISSED, IT APPEARING THAT THE DECISION IS BASED UPON A NONFEDERAL
GROUND ADEQUATE TO SUPPORT IT."  320 U.S. 714. 

FN4  "A STATE PROCEDURAL RULE WHICH FORBIDS THE RAISING OF FEDERAL
QUESTION AT LATE STAGES IN THE CASE, OR BY ANY OTHER THAN A PRESCRIBED
METHOD, HAS BEEN RECOGNIZED AS A VALID EXERCISE OF STATE POWER.  THE
PRINCIPLE IS CLEAR ENOUGH."  WILLIAMS V. GEORGIA, 349 U.S. 375, 382
383, AND CASES CITED AT N. 6.  SEE ALSO BROWN V. ALLEN, 344 U.S. 443,
486. 

FN5  NOT ONLY MAY THE PROMPT DETERMINATION OF SUCH PRELIMINARY MATTERS
AVOID THE NECESSITY OF A SECOND TRIAL, BUT A LONG DELAY IN ITS
DETERMINATION, SUCH AS HERE, MAKES IT EXTREMELY DIFFICULT IN THIS CLASS
OF CASE FOR THE STATE TO OVERCOME THE PRIMA FACIE CLAIM WHICH MAY BE
ESTABLISHED BY A DEFENDANT.  MATERIAL WITNESSES AND GRAND JURORS MAY
DIE OR LEAVE THE JURISDICTION, AND MEMORIES AS TO INTENT OR SPECIFIC
PRACTICES RELATING TO THE SELECTION OF A PARTICULAR GRAND JURY MAY LOSE
THEIR SHARPNESS.  FURTHERMORE, A SUCCESSFUL ATTACK ON A GRAND JURY THAT
SAT SEVERAL YEARS EARLIER MAY AFFECT OTHER CONVICTIONS BASED ON
INDICTMENTS RETURNED BY THE SAME GRAND JURY. 

FN6  CF. AGNEW V. UNITED STATES, 165 U.S. 36. 

FN7  ON THE CONTRARY, MR. MACHONEY, SINCE DECEASED, WAS RECOGNIZED AS
AN EXCEPTIONALLY QUALIFIED COUNSEL.  ON JUNE 1, 1955, THE LEGAL
PROFESSION IN NEW ORLEANS HONORED HIM WITH A PLAQUE WHICH CITED HIM AS
"AN ASTUTE AND HONORED CRIMINAL LAWYER WHO HAS EVER BEEN MINDFUL OF THE
OATH ADMINISTERED HIM 52 YEARS AGO TO UPHOLD THE LAW AND TO GUARANTEE
TO EACH ACCUSED HIS DAY IN COURT."  AS POINTED OUT IN THE STATE'S
BRIEF, WHETHER OR NOT TO MAKE AN IMMEDIATE ATTACK ON THE GRAND JURY WAS
ENTIRELY WITHIN THE DISCRETION OF MR. MAHONEY AND THERE WERE VALID
REASONS FOR NOT DOING SO AT THE TIME. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

PETITIONERS, WHO ARE COLORED, WERE INDICTED, CONVICTED AND SENTENCED
TO DEATH IN A LOUISIANA STATE COURT.  THE GRAND JURY INDICTING THE
PETITIONERS WAS DRAWN FROM THE PARISH OR ORLEANS WHERE 32% OF THE
POPULATION IS COLORED.  ONLY ONCE WITHIN THE MEMORY OF PEOPLE LIVING IN
THAT PARISH HAD A COLORED PERSON BEEN SELECTED AS A GRAND JUROR.  THAT
JUROR, WHO HAPPENED TO LOOK LIKE A WHITE MAN, WAS SELECTED UNDER THE
MISTAKEN IDEA THAT HE WAS ONE.  THE FOREGOING FACTS ARE NOT DISPUTED
HERE. 

EACH OF THE PETITIONERS CHALLENGES THE VALIDITY OF THE INDICTMENT
AGAINST HIM ON THE GROUND THAT THE FAILURE TO HAVE COLORED PEOPLE ON
THE GRAND JURY WAS THE RESULT OF SYSTEMATIC AND DELIBERATE EXCLUSION ON
ACCOUNT OF RACE.  IN 1875 CONGRESS MADE IT A CRIME FOR STATE OR FEDERAL
OFFICERS TO DISQUALIFY CITIZENS FROM GRAND OR PETIT JURY SERVICE ON
ACCOUNT OF RACE OR COLOR.  18 STAT. 336, AS AMENDED, 18 U.S.C. SEC.
243.  AND SINCE THE ADOPTION OF THE FOURTEENTH AMENDMENT THIS COURT HAS
CONSISTENTLY HELD THAT SYSTEMATIC EXCLUSION OF NEGROES FROM GRAND-JURY
SERVICE VIOLATES THE FEDERAL CONSTITUTION.  SEE PATTON V. MISSISSIPPI,
332 U.S. 463, 465-466, AND CASES THERE CITED.  THE COURT HOLDS,
HOWEVER, THAT THESE PETITIONERS HAD A REASONABLE OPPORTUNITY TO
CHALLENGE THE COMPOSITION OF THE GRAND JURY INDICTING THEM BUT FAILED
TO DO SO, THEREBY WAIVING THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO
HAVE THE CHARGES AGAINST THEM CONSIDERED BY A FAIR AND LEGAL GRAND
JURY.  WITHOUT GOING INTO THE FACTS OF EACH PARTICULAR CASE, I THINK
THAT THE RECORD SHOWS THAT THERE WAS NO SUCH REASONABLE OPPORTUNITY
AFFORDED TO PETITIONERS MICHEL AND PORET OR THEIR COUNSEL.  I SHALL ADD
A FEW WORDS, HOWEVER, ABOUT THE SUPPOSED OPPORTUNITY OF PETITIONER
PORET TO CHALLENGE THE VALIDITY OF THE INDICTING GRAND JURY. 

THE STATE COURTS HAVE FOUND THAT PORET FLED FROM LOUISIANA AFTER
ALLEGEDLY COMMITTING THE CRIME FOR WHICH HE WAS INDICTED.  BUT THE TIME
ALLOWED PORET BY STATE LAW TO CHALLENGE THE VALIDITY OF HIS GRAND JURY
EXPIRED LONG BEFORE HE WAS ARRESTED AND BROUGHT BACK TO LOUISIANA.  IT
IS APPARENT THEREFORE THAT AFTER HIS ARREST PORET NEVER HAD ANY
OPPORTUNITY AT ALL TO CHALLENGE THE GRAND JURY.  IT IS TRUE THAT IF
PORET HAD NOT FLED AND HAD BEEN ARRESTED AND HAD THE BENEFIT OF COUNSEL
EARLY ENOUGH HE COULD HAVE CHALLENGED THE GRAND JURY'S COMPOSITION. 
FOR THIS REASON THE COURT HOLDS THAT HE FORFEITED HIS FEDERALLY
GUARANTEED RIGHT TO HAVE HIS CASE CONSIDERED BY AN UNPACKED GRAND
JURY.  I CANNOT AGREE THAT THE RIGHT TO THE KIND OF FAIR TRIAL
GUARANTEED BY THE FEDERAL CONSTITUTION AND CONGRESSIONAL ENACTMENT CAN
BE THUS DENIED BY A STATE.  IF PORET CAN BE DENIED THIS CONSTITUTIONAL
RIGHT, WHY NOT OTHERS?  COULD A STATE STATUTE OF LIMITATIONS LIKE THIS
ONE DECLARE THAT ANYONE UNDER INDICTMENT WHO FLEES THE STATE HAS
THEREBY WAIVED HIS RIGHT TO COUNSEL OR HIS RIGHT TO BE TRIED BY AN
UNBIASED JUDGE?  CF. IN RE MURCHISON, 349 U.S. 133. 

PORET COULD HAVE BEEN CHARGED WITH A FEDERAL CRIME UNDER 62 STAT.
755, 18 U.S.C. SEC. 1073, FOR FLEEING FROM ONE STATE TO ANOTHER TO
AVOID PROSECUTION.  BUT HE COULD NOT HAVE BEEN CONVICTED UNTIL AFTER
ADEQUATE NOTICE AND A FAIR TRIAL ON AN INDICTMENT RETURNED BY A FAIR
GRAND JURY SELECTED WITHOUT REGARD TO RACE OR COLOR.  AND CERTAINLY
CONGRESS DID NOT BY THIS STATUTE AUTHORIZE STATE COURTS TO FORFEIT THE
FEDERALLY PROTECTED RIGHTS OF AN ACCUSED BECAUSE HE HAD VIOLATED THE
FEDERAL LAW AGAINST FLEEING.  I SUPPOSE CONGRESS WOULD HAVE NO POWER TO
DO SUCH A THING.  UNDER OUR SYSTEM EVEN A BAD MAN IS ENTITLED TO HAVE
HIS CASE CONSIDERED AT EVERY STAGE BY A FAIR TRIBUNAL. 

NO SOUND REASONS HAVE BEEN ADVANCED SUPPORTING THE POWER OF A STATE
TO USE THE DEVICE HERE CONTRIVED TO JUSTIFY TRIAL OF DEFENDANTS ON
INDICTMENTS RETURNED BY GRAND JURIES IN FLAGRANT VIOLATION OF THE
FEDERAL CONSTITUTION.  THE ARGUMENTS ADVANCED BY THE COURT FIND NO
SUBSTANTIAL SUPPORT IN ANY OF OUR PRIOR DECISIONS.  ON THE CONTRARY,
THIS COURT HAS STRONGLY ASSERTED THE RIGHT OF DEFENDANTS TO RAISE
DEFENSES PERMITTED OTHERS DESPITE THEIR GUILT OR INNOCENCE OF CHARGES
THAT ARE SEPARATE AND DISTINCT FROM THOSE UPON WHICH THEY ARE TRIED. 
SEE HOVEY V. ELLIOTT, 167 U.S. 409.  CF. MAJORITY AND DISSENTING
OPINIONS IN NATIONAL UNION OF MARINE COOKS & STEWARDS V. ARNOLD, 348
U.S. 37.  THE COURT'S OPINION HERE APPEARS TO ME TO GIVE FAR TOO LITTLE
WEIGHT TO THE CONSTITUTIONAL AND STATUTORY RIGHTS OF AN ACCUSED TO BE
INDICTED AND TRIED BY JURIES SELECTED WITHOUT RACIAL DISCRIMINATION. 

I WOULD REVERSE THE CONVICTIONS OF PORET AND MICHEL.  SINCE LABAT AND
PORET WERE JOINTLY INDICTED BY THE SAME UNCONSTITUTIONALLY SELECTED
GRAND JURY, I WOULD VACATE THE CONVICTION OF PORET'S CODEFENDANT
LABAT.  SEE ASHCRAFT V. TENNESSEE, 322 U.S. 143, 155-156, AND 327 U.S.
274, 279.  CF. MALINSKI V. NEW YORK, 324 U.S. 401. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

I DO NOT THINK THAT PETITIONERS WERE ACCORDED THE OPPORTUNITY,
GUARANTEED BY DUE PROCESS OF LAW, TO CHALLENGE THE CONSTITUTIONALITY OF
THE COMPOSITION OF THE GRAND JURIES THAT INDICTED THEM. 

AS TO MICHEL, THE TRIAL JUDGE FOUND THAT COUNSEL WAS APPOINTED ON
MARCH 2, 1953, THREE DAYS BEFORE THE DEADLINE FOR FILING A MOTION TO
QUASH.  FROM THE RECORD IT IS CLEAR THAT THE TRIAL JUDGE BELIEVED THAT
HE APPOINTED COUNSEL ON MARCH 2.  BUT THE RECORD CONTAINS A SWORN
STATEMENT BY MICHEL'S COUNSEL THAT HE DID NOT CONSIDER HIMSELF
APPOINTED UNTIL HE RECEIVED OFFICIAL NOTICE FROM THE COURT ON MARCH 5;
AND THAT IS WHAT HE TELLS US WITH GREAT SERIOUSNESS ON ORAL ARGUMENT. 

THE CRUCIAL QUESTION IN THIS CASE IS NOT WHAT THE TRIAL JUDGE
THOUGHT, BUT WHAT THE EFFECT OF THE MISUNDERSTANDING BETWEEN HIM AND
COUNSEL HAD UPON THE CONSTITUTIONAL RIGHTS OF MICHEL.  IF COUNSEL ON
MARCH 2 BELIEVED THAT HE WAS NOT YET APPOINTED AND RENDERED NO SERVICE
TO THE PETITIONER DURING THIS CRITICAL THREE-DAY PERIOD, THE
APPOINTMENT WAS NOT AN EFFECTIVE APPOINTMENT.  ON THIS RECORD AND ON
THE REPRESENTATIONS MADE TO US ON ORAL ARGUMENT, IT IS CLEAR THAT
MICHEL HAD NO REAL OPPORTUNITY TO RAISE THE IMPORTANT CONSTITUTIONAL
QUESTION THAT MIGHT WELL HAVE SAVED HIM FROM EXECUTION.  WITHOUT
COUNSEL, OF COURSE, HE HAD NO EFFECTIVE OPPORTUNITY TO RAISE THE
CONSTITUTIONAL QUESTION.  SEE REECE V. GEORGIA, ANTE, P. 85.  I WOULD
NOT ALLOW ANY MAN TO GO TO HIS DEATH BECAUSE OF A MISUNDERSTANDING
BETWEEN THE JUDGE AND HIS LAWYER PREVENTED HIM FROM GETTING A HEARING
ON A CONSTITUTIONAL QUESTION. 

PETITIONER PORET APPARENTLY FLED LOUISIANA SHORTLY AFTER THE CRIME
WAS COMMITTED.  HE WAS APPREHENDED IN TENNESSEE, BUT LONG AFTER THE
INDICTMENT HAD BEEN RETURNED AND THE STATUTORY PERIOD FOR FILING A
MOTION TO QUASH HAD EXPIRED.  THE OPPORTUNITY TO RAISE THE
CONSTITUTIONAL OBJECTION, THEREFORE, WAS FORECLOSED BEFORE HE WAS
ARRAIGNED AND, AS FAR AS THE RECORD SHOWS, BEFORE HE HAD ANY KNOWLEDGE
THAT THE INDICTMENT WAS PENDING AGAINST HIM.  IT'S AS IF THE GRAND JURY
HAD BEEN IMPANELED BEFORE THE COMMISSION OF THE OFFENSE, AND THE TIME
FOR RAISING OBJECTIONS TO IT EXPIRED WITH THE IMPANELING, AS WAS THE
CASE OF CARTER V. TEXAS, 177 U.S. 442, 447.  UNDER THESE CIRCUMSTANCES,
PORET HAD NO REAL OPPORTUNITY TO CHALLENGE THE CONSTITUTIONALITY OF THE
COMPOSITION OF THE GRAND JURY.  HIS FLIGHT WAS A WRONG THAT COULD BE
PUNISHED.  BUT IS IS DANGEROUS DOCTRINE TO DEPRIVE A MAN OF HIS
CONSTITUTIONAL RIGHTS IN ONE CASE FOR HIS WRONGFUL CONDUCT IN ANOTHER. 
THAT IS A DOCTRINE THAT CURRENTLY IS GAINING MOMENTUM.  I DISAVOW IT.
I WOULD GIVE EVERY ACCUSED, REGARDLESS OF HIS RECORD, CONDUCT,
REPUTATION OR BELIEFS, THE FULL BENEFIT OF THE CONSTITUTIONAL
GUARANTEES OF DUE PROCESS.  EVERY ACCUSED SHOULD HAVE THE RIGHT ON HIS
ARREST AND ARRAIGNMENT TO INVOKE THEM.  PORET GOES TO HIS DEATH WITHOUT
EVER HAVING HAD AN OPPORTUNITY TO SHOW THAT THE GRAND JURY WHICH
INDICTED HIM WAS NOT DRAWN IN ACCORDANCE WITH THE MANDATE OF THE
FOURTEENTH AMENDMENT.    I WOULD REVERSE BOTH CONVICTIONS* AND GIVE THE
DEFENDANTS AN OPPORTUNITY TO COME FORWARD WITH THEIR EVIDENCE THAT THE
GRAND JURIES WHICH INDICTED THEM WERE UNCONSTITUTIONAL BECAUSE OF THE
SYSTEMATIC EXCLUSION OF NEGROES FROM THE PANELS. 

*THE CONVICTION OF LABAT SHOULD BE VACATED BECAUSE HE IS JOINTLY
INDICTED WITH PORET BY THE SAME GRAND JURY WHOSE COMPOSITION IS
CHALLENGED ON CONSTITUTIONAL GROUNDS.  CF.  ASHCRAFT V. TENNESSEE, 322
U.S. 143. 
..END :







INDIAN TOWING CO., INC. V. UNITED STATES 350 U.S. 61 


NO. 8.  ARGUED FEBRUARY 10, 1955; AFFIRMED BY AN EQUALLY DIVIDED COURT
APRIL 11, 1955; REHEARING GRANTED MAY 16, 1955; REARGUED OCTOBER 13,
1955 - DECIDED NOVEMBER 21, 1955 - 211 F.2D 886, REVERSED AND
REMANDED. 


IF THE COAST GUARD IS NEGLIGENT IN THE OPERATION OF A LIGHTHOUSE AND
DAMAGE IS CAUSED THEREBY, THE UNITED STATES IS LIABLE UNDER THE TORT
CLAIMS ACT.  PP. 61-70. 

(A)  THE LANGUAGE OF 28 U.S.C. SEC. 2674, IMPOSING LIABILITY "IN THE
SAME MANNER AND TO THE SAME EXTENT AS A PRIVATE INDIVIDUAL UNDER LIKE
CIRCUMSTANCES," IS NOT TO BE READ AS EXCLUDING LIABILITY FOR NEGLIGENT
CONDUCT IN THE OPERATION OF AN ENTERPRISE IN WHICH PRIVATE PERSONS ARE
NOT ENGAGED.  PP. 64-65. 

(B)  THE TORT CLAIMS ACT DOES NOT IMPLIEDLY INCORPORATE THE
DISTINCTION BETWEEN "GOVERNMENTAL" AND "NON-GOVERNMENTAL" FUNCTIONS
WHICH HAS CAUSED CONFUSION IN THE LAW OF MUNICIPAL LIABILITY FOR
TORTS.   PP. 65-69. 

(C)  ONCE THE COAST GUARD HAS EXERCISED ITS DISCRETION TO OPERATE A
LIGHTHOUSE AT A CERTAIN PLACE, IT IS OBLIGATED TO USE DUE CARE TO MAKE
CERTAIN THAT THE LIGHT IS KEPT IN GOOD WORKING ORDER; AND, IF THE LIGHT
BECOMES EXTINGUISHED, THE COAST GUARD IS FURTHER OBLIGATED TO USE DUE
CARE TO DISCOVER THIS FACT AND TO REPAIR THE LIGHT OR GIVE WARNING THAT
IT IS NOT FUNCTIONING.  P. 69. 

(D)  FERES V. UNITED STATES, 340 U.S. 135, AND DALEHITE V. UNITED
STATES, 346 U.S. 15, DISTINGUISHED.  P. 69. 

INDIAN TOWING CO., INC., ET AL. V. UNITED STATES. 

ON REHEARING. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONERS BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI, SEEKING RECOVERY UNDER THE FEDERAL
TORT CLAIMS ACT, 28 U.S.C. SEC. 1346(B), FOR DAMAGES ALLEGED TO HAVE
BEEN CAUSED BY THE NEGLIGENCE OF THE COAST GUARD IN THE OPERATION OF A
LIGHTHOUSE LIGHT.  THEY ALLEGED THAT ON OCTOBER 1, 1951, THE TUG
NAVAJO, OWNED BY PETITIONER INDIAN TOWING COMPANY, WAS TOWING BARGE AS
16, CHARTERED BY PETITIONER UPPER MISSISSIPPI TOWING CORPORATION; THAT
THE BARGE WAS LOADED WITH A CARGO OF TRIPLE SUPER PHOSPHATE, CONSIGNED
TO PETITIONER MINNESOTA FARM BUREAU SERVICE COMPANY AND INSURED BY
PETITIONER UNITED FIREMEN'S INSURANCE COMPANY; THAT THE TUG NAVAJO WENT
AGROUND ON CHANDELEUR ISLAND AND AS A RESULT THEREOF SEA WATER WETTED
AND DAMAGED THE CARGO TO THE EXTENT OF $62,659.70; THAT THE CONSIGNEE
REFUSED TO ACCEPT THE CARGO; THAT PETITIONERS INDIAN TOWING COMPANY AND
UPPER MISSISSIPPI TOWING CORPORATION THEREFORE BECAME RESPONSIBLE FOR
THE LOSS OF THE CARGO; AND THAT THE LOSS WAS PAID BY PETITIONER UNITED
FIREMEN'S INSURANCE COMPANY UNDER LOAN RECEIPTS.  THE COMPLAINT FURTHER
STATED THAT THE GROUNDING OF THE NAVAJO WAS DUE SOLELY TO THE FAILURE
OF THE LIGHT ON CHANDELEUR ISLAND WHICH IN TURN WAS CAUSED BY THE
NEGLIGENCE OF THE COAST GUARD.  THE SPECIFIC ACTS OF NEGLIGENCE RELIED
ON WERE THE FAILURE OF THE RESPONSIBLE COAST GUARD PERSONNEL TO CHECK
THE BATTERY AND SUN RELAY SYSTEM WHICH OPERATED THE LIGHT; THE FAILURE
OF THE CHIEF PETTY OFFICER WHO CHECKED THE LIGHTHOUSE ON SEPTEMBER 7,
1951, TO MAKE A PROPER EXAMINATION OF THE CONNECTIONS WHICH WERE "OUT
IN THE WEATHER"; THE FAILURE TO CHECK THE LIGHT BETWEEN SEPTEMBER 7 AND
OCTOBER 1, 1951; AND THE FAILURE TO REPAIR THE LIGHT OR GIVE WARNING
THAT THE LIGHT WAS NOT OPERATING.  PETITIONERS ALSO ALLEGED THAT THERE
WAS A LOOSE CONNECTION WHICH COULD HAVE BEEN DISCOVERED UPON PROPER
INSPECTION. 

ON MOTION OF THE RESPONDENT THE CASE WAS TRANSFERRED TO THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, NEW
ORLEANS DIVISION.  RESPONDENT THEN MOVED TO DISMISS ON THE GROUND THAT
IT HAD NOT CONSENTED TO BE SUED "IN THE MANNER IN WHICH THIS SUIT IS
BROUGHT" IN THAT PETITIONERS' ONLY RELIEF WAS UNDER THE SUITS IN
ADMIRALTY ACT, 41 STAT. 525, OR THE PUBLIC VESSELS ACT, 43 STAT. 1112. 
THIS MOTION WAS GRANTED AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
AFFIRMED PER CURIAM.  211 F.2D 886.  BECAUSE THE CASE PRESENTED AN
IMPORTANT ASPECT OF THE STILL UNDETERMINED EXTENT OF THE GOVERNMENT'S
LIABILITY UNDER THE FEDERAL TORT CLAIMS ACT, WE GRANTED CERTIORARI, 348
U.S. 810.  THE JUDGMENT OF THE COURT OF APPEALS WAS AFFIRMED BY AN
EQUALLY DIVIDED COURT, 349 U.S. 902, BUT A PETITION FOR REHEARING WAS
GRANTED, THE EARLIER JUDGMENT IN THIS COURT VACATED, AND THE CASE
RESTORED TO THE DOCKET FOR REARGUMENT BEFORE THE FULL BENCH.  349 U.S.
926. 

THE RELEVANT PROVISIONS OF THE FEDERAL TORT CLAIMS ACT ARE 28 U.S.C.
SECS. 1346(B), 2674, AND 2680(A): 

SEC. 1346(B).  "  ...  THE DISTRICT COURTS  ...  SHALL HAVE 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." 

SEC. 2674.  "THE UNITED STATES SHALL BE LIABLE  ...  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." 

     *         *         *         *       * 

SEC. 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." 

THE QUESTION IS ONE OF LIABILITY FOR NEGLIGENCE AT WHAT THIS COURT
HAS CHARACTERIZED THE "OPERATIONAL LEVEL" OF GOVERNMENTAL ACTIVITY. 
DALEHITE V. UNITED STATES, 346 U.S. 15, 42.  THE GOVERNMENT CONCEDES
THAT THE EXCEPTION OF SEC. 2680 RELIEVING FROM LIABILITY FOR NEGLIGENT
"EXERCISE OF JUDGMENT" (WHICH IS THE WAY THE GOVERNMENT PARAPHRASES A
"DISCRETIONARY FUNCTION" IN SEC. 2680(A)) IS NOT INVOLVED HERE, AND IT
DOES NOT DENY THAT THE FEDERAL TORT CLAIMS ACT DOES PROVIDE FOR
LIABILITY IN SOME SITUATIONS ON THE "OPERATIONAL LEVEL" OF ITS
ACTIVITY.  BUT THE GOVERNMENT CONTENDS THAT THE LANGUAGE OF SEC. 2674
(AND THE IMPLICATIONS OF SEC. 2680) IMPOSING LIABILITY "IN THE SAME
MANNER AND TO THE SAME EXTENT AS A PRIVATE INDIVIDUAL UNDER LIKE
CIRCUMSTANCES  ...  " MUST BE READ AS EXCLUDING LIABILITY IN THE
PERFORMANCE OF ACTIVITIES WHICH PRIVATE PERSONS DO NOT PERFORM.  THUS,
THERE WOULD BE NO LIABILITY FOR NEGLIGENT PERFORMANCE OF "UNIQUELY
GOVERNMENTAL FUNCTIONS."  THE GOVERNMENT READS THE STATUTE AS IF IT
IMPOSED LIABILITY TO THE SAME EXTENT AS WOULD BE IMPOSED ON A PRIVATE
INDIVIDUAL "UNDER THE SAME CIRCUMSTANCES."  BUT THE STATUTORY LANGUAGE
IS "UNDER LIKE CIRCUMSTANCES," AND IT IS HORNBOOK TORT LAW THAT ONE WHO
UNDERTAKES TO WARN THE PUBLIC OF DANGER AND THEREBY INDUCES RELIANCE
MUST PERFORM HIS "GOOD SAMARITAN" TASK IN A CAREFUL MANNER. 

FURTHERMORE, THE GOVERNMENT IN EFFECT READS THE STATUTE AS IMPOSING
LIABILITY IN THE SAME MANNER AS IF IT WERE A MUNICIPAL CORPORATION AND
NOT AS IF IT WERE A PRIVATE PERSON, AND IT WOULD THUS PUSH THE COURTS
INTO THE "NON-GOVERNMENTAL"-"GOVERNMENTAL" QUAGMIRE THAT HAS LONG
PLAGUED THE LAW OF MUNICIPAL CORPORATIONS.  A COMPARATIVE STUDY OF THE
CASES IN THE FORTY-EIGHT STATES WILL DISCLOSE AN IRRECONCILABLE
CONFLICT.  MORE THAN THAT, THE DECISIONS IN EACH OF THE STATES ARE
DISHARMONIOUS AND DISCLOSE THE INEVITABLE CHAOS WHEN COURTS TRY TO
APPLY A RULE OF LAW THAT IS INHERENTLY UNSOUND.  THE FACT OF THE MATTER
IS THAT THE THEORY WHEREBY MUNICIPALITIES ARE MADE AMENABLE TO
LIABILITY IS AN ENDEAVOR, HOWEVER AWKWARD AND CONTRADICTORY, TO ESCAPE
FROM THE BASIC HISTORICAL DOCTRINE OF SOVEREIGN IMMUNITY.  THE FEDERAL
TORT CLAIMS ACT CUTS THE GROUND FROM UNDER THAT DOCTRINE; IT IS NOT
SELF-DEFEATING BY COVERTLY EMBEDDING THE CASUISTRIES OF MUNICIPAL
LIABILITY FOR TORTS.  (FN1) 

WHILE THE GOVERNMENT DISAVOWS A BLANKET EXEMPTION FROM LIABILITY FOR
ALL OFFICIAL CONDUCT FURTHERING THE "UNIQUELY GOVERNMENTAL" ACTIVITY IN
ANY WAY, IT DOES CLAIM THAT THERE CAN BE NO RECOVERY BASED ON THE
NEGLIGENT PERFORMANCE OF THE ACTIVITY ITSELF, THE SO-CALLED "END
OBJECTIVE" OF THE PARTICULAR GOVERNMENTAL ACTIVITY.  LET US SUPPOSE
THAT THE CHIEF PETTY OFFICER GOING IN A COAST GUARD CAR TO INSPECT THE
LIGHT ON CHANDELEUR ISLAND FIRST NEGLIGENTLY RAN OVER A PEDESTRIAN;
LATER, WHILE HE WAS INSPECTING THE LIGHT, HE NEGLIGENTLY TRIPPED OVER A
WIRE AND INJURED SOMEONE ELSE; HE THEN FORGOT TO INSPECT AN OUTSIDE
CONNECTION AND THAT NIGHT THE PATENTLY DEFECTIVE CONNECTION BROKE AND
THE LIGHT FAILED, CAUSING A SHIP TO GO AGROUND AND ITS CARGO OF TRIPLE
SUPER PHOSPHATE TO GET WET; FINALLY THE CHIEF PETTY OFFICER ON HIS WAY
OUT OF THE LIGHTHOUSE TOUCHED A KEY TO AN UNINSULATED WIRE TO SEE THAT
IT WAS CARRYING CURRENT, AND THE SPARK HE PRODUCED CAUSED A FIRE WHICH
SANK A NEARBY BARGE CARRYING TRIPLE SUPER PHOSPHATE.  UNDER THE
GOVERNMENT'S THEORY, SOME OF THESE ACTS OF NEGLIGENCE WOULD BE
ACTIONABLE, AND SOME WOULD NOT.  BUT IS THERE A RATIONAL GROUND, ONE
THAT WOULD CARRY CONVICTION TO MINDS NOT IN THE GRIP OF TECHNICAL
OBSCURITIES, WHY THERE SHOULD BE ANY DIFFERENCE IN RESULT?  THE ACTS
WERE DIFFERENT IN TIME AND PLACE BUT ALL WERE DONE IN FURTHERANCE OF
THE OFFICER'S TASK OF INSPECTING THE LIGHTHOUSE AND IN FURTHERANCE OF
THE COAST GUARD'S TASK IN OPERATING A LIGHT ON CHANDELEUR ISLAND. 
MOREOVER, IF THE UNITED STATES WERE TO PERMIT THE OPERATION OF PRIVATE
LIGHTHOUSES - NOT AT ALL INCONCEIVABLE - THE GOVERNMENT'S BASIS OF
DIFFERENTIATION WOULD BE GONE AND THE NEGLIGENCE CHARGED IN THIS CASE
WOULD BE ACTIONABLE.  YET THERE WOULD BE NO CHANGE IN THE CHARACTER OF
THE GOVERNMENT'S ACTIVITY IN THE PLACES WHERE IT OPERATED A LIGHTHOUSE,
AND WE WOULD BE ATTRIBUTING BIZARRE MOTIVES TO CONGRESS WERE WE TO HOLD
THAT IT WAS PREDICATING LIABILITY ON SUCH A COMPLETELY FORTUITOUS
CIRCUMSTANCE - THE PRESENCE OR ABSENCE OF IDENTICAL PRIVATE ACTIVITY. 
(FN2) 

WHILE THE AREA OF LIABILITY IS CIRCUMSCRIBED BY CERTAIN PROVISIONS OF
THE FEDERAL TORT CLAIMS ACT, SEE 28 U.S.C. SEC. 2680, ALL GOVERNMENT
ACTIVITY IS INESCAPABLY "UNIQUELY GOVERNMENTAL" IN THAT IT IS PERFORMED
BY THE GOVERNMENT.  IN A CASE IN WHICH THE FEDERAL CROP INSURANCE
CORPORATION, A WHOLLY GOVERNMENT-OWNED ENTERPRISE, WAS SOUGHT TO BE
HELD LIABLE ON A CROP-INSURANCE POLICY ON THE THEORY THAT A PRIVATE
INSURANCE COMPANY WOULD BE LIABLE IN THE SAME SITUATION, THIS COURT
STATED: "GOVERNMENT IS NOT PARTLY PUBLIC OR PARTLY PRIVATE, DEPENDING
UPON THE GOVERNMENTAL PEDIGREE OF THE TYPE OF A PARTICULAR ACTIVITY OR
THE MANNER IN WHICH THE GOVERNMENT CONDUCTS IT."  FEDERAL CROP
INSURANCE CORP. V. MERRILL, 332 U.S. 380, 383-384.  ON THE OTHER HAND,
IT IS HARD TO THINK OF ANY GOVERNMENTAL ACTIVITY ON THE "OPERATIONAL
LEVEL," OUR PRESENT CONCERN, WHICH IS "UNIQUELY GOVERNMENTAL," IN THE
SENSE THAT ITS KIND HAS NOT AT ONE TIME OR ANOTHER BEEN, OR COULD NOT
CONCEIVABLY BE, PRIVATELY PERFORMED. 

THERE IS NOTHING IN THE TORT CLAIMS ACT WHICH SHOWS THAT CONGRESS
INTENDED TO DRAW DISTINCTIONS SO FINESPUN AND CAPRICIOUS AS TO BE
ALMOST INCAPABLE OF BEING HELD IN THE MIND FOR ADEQUATE FORMULATION. 
THE STATUTE WAS THE PRODUCT OF NEARLY THIRTY YEARS OF CONGRESSIONAL
CONSIDERATION AND WAS DRAWN WITH NUMEROUS SUBSTANTIVE LIMITATIONS AND
ADMINISTRATIVE SAFEGUARDS.  (FOR SUBSTANTIVE LIMITATIONS, SEE SEC.
2680(A)-(M).  (FN3)  FOR ADMINISTRATIVE SAFEGUARDS, SEE SEC. 2401(B)
(STATUTE OF LIMITATIONS); SEC. 2402 (DENIAL OF TRIAL BY JURY); SEC.
2672 (ADMINISTRATIVE ADJUSTMENT OF CLAIMS OF $1,000 OR LESS); SEC. 2673
(REPORTS TO CONGRESS); SEC. 2674 (NO LIABILITY FOR PUNITIVE DAMAGES OR
FOR INTEREST PRIOR TO JUDGMENT); SEC. 2675 (DISPOSITION BY FEDERAL
AGENCY AS PREREQUISITE TO SUIT WHEN CLAIM IS FILED); SEC. 2677
(COMPROMISE); SEC. 2679 (EXCLUSIVENESS OF REMEDY).)  THE LANGUAGE OF
THE STATUTE DOES NOT SUPPORT THE GOVERNMENT'S ARGUMENT.  LOOSE GENERAL
STATEMENTS IN THE LEGISLATIVE HISTORY TO WHICH THE GOVERNMENT POINTS
SEEM DIRECTED MAINLY TOWARD THE "DISCRETIONARY FUNCTION" EXEMPTION OF
SEC. 2680 AND ARE NOT PERSUASIVE.  THE BROAD AND JUST PURPOSE WHICH THE
STATUTE WAS DESIGNED TO EFFECT WAS TO COMPENSATE THE VICTIMS OF
NEGLIGENCE IN THE CONDUCT OF GOVERNMENTAL ACTIVITIES IN CIRCUMSTANCES
LIKE UNTO THOSE IN WHICH A PRIVATE PERSON WOULD BE LIABLE AND NOT TO
LEAVE JUST TREATMENT TO THE CAPRICE AND LEGISLATIVE BURDEN OF
INDIVIDUAL PRIVATE LAWS.  OF COURSE, WHEN DEALING WITH A STATUTE
SUBJECTING THE GOVERNMENT TO LIABILITY FOR POTENTIALLY GREAT SUMS OF
MONEY, THIS COURT MUST NOT PROMOTE PROFLIGACY BY CARELESS
CONSTRUCTION.  NEITHER SHOULD IT AS A SELF-CONSTITUTED GUARDIAN OF THE
TREASURY IMPORT IMMUNITY BACK INTO A STATUTE DESIGNED TO LIMIT IT. 

THE COAST GUARD NEED NOT UNDERTAKE THE LIGHTHOUSE SERVICE.  BUT ONCE
IT EXERCISED ITS DISCRETION TO OPERATE A LIGHT ON CHANDELEUR ISLAND AND
ENGENDERED RELIANCE ON THE GUIDANCE AFFORDED BY THE LIGHT, IT WAS
OBLIGATED TO USE DUE CARE TO MAKE CERTAIN THAT THE LIGHT WAS KEPT IN
GOOD WORKING ORDER; AND, IF THE LIGHT DID BECOME EXTINGUISHED, THEN THE
COAST GUARD WAS FURTHER OBLIGATED TO USE DUE CARE TO DISCOVER THIS FACT
AND TO REPAIR THE LIGHT OR GIVE WARNING THAT IT WAS NOT FUNCTIONING. 
IF THE COAST GUARD FAILED IN ITS DUTY AND DAMAGE WAS THEREBY CAUSED TO
PETITIONERS, THE UNITED STATES IS LIABLE UNDER THE TORT CLAIMS ACT. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT CONSIDERED FERES V. UNITED
STATES, 340 U.S. 135, AND DALEHITE V. UNITED STATES, 346 U.S. 15,
CONTROLLING.  NEITHER CASE IS APPLICABLE.  FERES HELD ONLY THAT "THE
GOVERNMENT IS NOT LIABLE UNDER THE FEDERAL TORT CLAIMS ACT FOR INJURIES
TO SERVICEMEN WHERE THE INJURIES ARISE OUT OF OR ARE IN THE COURSE OF
ACTIVITY INCIDENT TO SERVICE.  WITHOUT EXCEPTION, THE RELATIONSHIP OF
MILITARY PERSONNEL TO THE GOVERNMENT HAS BEEN GOVERNED EXCLUSIVELY BY
FEDERAL LAW."  340 U.S., AT 146.  AND SEE BROOKS V. UNITED STATES, 337
U.S. 49.  THE DIFFERENCES BETWEEN THIS CASE AND DALEHITE NEED NOT BE
LABORED.  THE GOVERNING FACTORS IN DALEHITE SUFFICIENTLY EMERGE FROM
THE OPINION IN THAT CASE.  (FN4)    THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS.  REVERSED AND REMANDED. 

FN1  A GOOD ILLUSTRATION OF THE EFFORT OF A CONSCIENTIOUS COURT TO
RECONCILE THE IRRECONCILABLE IS HALEY V. CITY OF BOSTON, 191 MASS. 291,
77 N.E. 888.  FOR AN EXAMPLE OF THE CONFUSION PREVAILING IN ONE
JURISDICTION, COMPARE DISTRICT OF COLUMBIA V. WOODBURY, 136 U.S. 450
(MUNICIPAL CORPORATION LIABLE FOR INJURIES CAUSED BY NEGLIGENT FAILURE
TO KEEP SIDEWALK IN REPAIR) WITH HARRIS V. DISTRICT OF COLUMBIA, 256
U.S. 650 (MUNICIPAL CORPORATION NOT LIABLE FOR INJURIES CAUSED BY
NEGLIGENT SPRINKLING OF STREETS).  BUT EVEN IN THE LAW OF MUNICIPAL
CORPORATION AND STATE LIABILITY, ONE STATE AT LEAST HAS SOUGHT TO
EMERGE FROM THE QUAGMIRE.  SEE THE MORE RECENT NEW YORK CASES:  FOLEY
V. STATE OF NEW YORK, 294 N.Y. 275, 62 N.E.2D 69 (STATE LIABLE WHEN
NEGLIGENT FAILURE TO REPLACE BURNED-OUT BULB IN TRAFFIC LIGHT CAUSED
ACCIDENT); BERNARDINE V. CITY OF NEW YORK, 294 N.Y. 361, 62 N.E.2D 604
(CITY LIABLE IN NEGLIGENCE ACTION FOR DAMAGES CAUSED BY RUNAWAY POLICE
HORSE).  WHEN THE CONFUSED LAW OF MUNICIPAL CORPORATIONS IS APPLIED TO
THE TORT CLAIMS ACT, THE SAME UNSATISFACTORY RESULTS OCCUR.  COMPARE
THE HOLDING OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT IN THE
INSTANT CASE, 211 F.2D 886, WITH ITS HOLDING IN UNITED STATES V.
LAWTER, 219 F.2D 559 (UNITED STATES LIABLE UNDER TORT CLAIMS ACT FOR
NEGLIGENCE OF COAST GUARD DURING HELICOPTER RESCUE OPERATION). 

FN2  ALTHOUGH THE ARGUMENT IS MORE ELABORATELY PRESENTED HERE, THIS
IS NOT THE FIRST STATUTE WHICH THE GOVERNMENT HAS ATTEMPTED TO CONSTRUE
IN THIS MANNER.  THE SUITS IN ADMIRALTY ACT, 41 STAT. 525, PROVIDED
THAT A LIBEL IN PERSONAM COULD BE BROUGHT AGAINST THE UNITED STATES FOR
DAMAGE CAUSED BY A GOVERNMENT-OWNED MERCHANT VESSEL OR TUG IN CASES
"WHERE IF SUCH VESSEL WERE PRIVATELY OWNED OR OPERATED  ...  A
PROCEEDING IN ADMIRALTY COULD BE MAINTAINED  ...  " AND STATED THAT
"SUCH SUITS SHALL PROCEED AND SHALL BE HEARD AND DETERMINED ACCORDING
TO THE PRINCIPLES OF LAW AND TO THE RULES OF PRACTICE OBTAINING IN LIKE
CASES BETWEEN PRIVATE PARTIES."  IN EASTERN TRANSPORTATION CO. V.
UNITED STATES, 272 U.S. 675, AN ACTION WAS BROUGHT UNDER THE ACT TO
RECOVER DAMAGES FOR THE LOSS OF SHIP AND CARGO BY COLLISION WITH AN
UNMARKED WRECK OF A SUNKEN GOVERNMENT-OWNED MERCHANT VESSEL.  THE
GOVERNMENT MOVED TO DISMISS THE ACTION ON THE GROUND, INTER ALIA, THAT
"THE SAID ALLEGED CAUSE OF ACTION SET OUT IN THE SAID LIBEL RELATES TO
AN ALLEGED FAILURE ON THE PART OF THE OFFICERS AND/OR AGENTS OF THE
UNITED STATES TO PERFORM A PURELY GOVERNMENTAL FUNCTION OR TO ALLEGED
NEGLIGENCE OF SUCH OFFICERS AND/OR AGENTS IN THE PERFORMANCE OF A
PURELY GOVERNMENTAL FUNCTION; AND GIVES RISE TO NO LIABILITY ON THE
PART OF THE UNITED STATES OF AMERICA FOR WHICH THEY ARE SUABLE IN THE
UNITED STATES COURT OR ELSEWHERE."  THE MOTION TO DISMISS WAS GRANTED
ON ANOTHER GROUND BUT ON APPEAL THE SUPREME COURT REJECTED ALL
ARGUMENTS THAT THE DISTRICT COURT LACKED JURISDICTION AND REVERSED THE
JUDGMENT OF THE DISTRICT COURT. 

FN3  CONGRESS SIGNIFICANTLY WITHHELD LIABILITY FOR CLAIMS RELATING,
INTER ALIA, TO THE POSTAL SERVICE, TAX COLLECTION, QUARANTINE
ESTABLISHMENT, FISCAL OPERATIONS, COMBATANT ACTIVITIES OF THE COAST
GUARD DURING TIME OF WAR, AND THE ACTIVITIES OF THE TVA. 

FN4  THE COURT IN DALEHITE DISPOSED OF A CLAIM OF LIABILITY FOR
NEGLIGENCE IN CONNECTION WITH FIRE FIGHTING BY FINDING THAT "THERE IS
NO ANALOGOUS LIABILITY  ...  " IN THE LAW OF TORTS.  346 U.S., AT 44. 
BUT SEE WORKMAN V. NEW YORK CITY, 179 U.S. 552. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON, MR. JUSTICE CLARK,
AND MR. JUSTICE MINTON JOIN, DISSENTING. 

THE COURT REVERSES THE JUDGMENT ON THE GROUND THAT THE UNITED STATES
IS LIABLE UNDER THE FEDERAL TORT CLAIMS ACT FOR DAMAGES CAUSED BY THE
NEGLIGENCE OF THE COAST GUARD IN MAINTAINING A LIGHTHOUSE LIGHT NEAR
THE MOUTH OF THE MISSISSIPPI.  THE ALLEGED NEGLIGENCE WAS THE FAILURE
OF THE COAST GUARD PERSONNEL TO CHECK THE ELECTRIC SYSTEM WHICH
OPERATED THE LIGHT, THE FAILURE TO MAKE A PROPER EXAMINATION OF THE
CONNECTIONS AND OTHER APPARATUS CONNECTED WITH THE LIGHT, AND THE
FAILURE TO REPAIR THE LIGHT OR GIVE NOTICE TO VESSELS THAT THE LIGHT
WAS NOT FUNCTIONING.  ALTHOUGH NAVIGATORS WERE WARNED THIS WAS AN
"UNWATCHED LIGHT," (FN1) IT IS ASSUMED AT THIS POINT IN THE LITIGATION
THAT THIS NEGLIGENCE OCCURRED AND THAT IT WAS THE PROXIMATE CAUSE OF
THE LOSS.  GOVERNMENT OPERATION OF THE LIGHTHOUSE WAS AUTHORIZED BY 14
U.S.C. SEC. 81.  IT IS FORBIDDEN TO OTHERS EXCEPT BY AUTHORITY OF THE
COAST GUARD.  (FN2) 

THE QUESTION OF THE LIABILITY OF THE UNITED STATES FOR THIS
NEGLIGENCE DEPENDS ON THE SCOPE AND MEANING OF THE FEDERAL TORT CLAIMS
ACT.  THE HISTORY OF THE ADOPTION OF THAT ACT HAS HERETOFORE BEEN
THOROUGHLY EXPLAINED.  (FN3)  BEFORE ITS ENACTMENT, THE IMMUNITY OF THE
GOVERNMENT FROM SUCH TORT ACTIONS WAS ABSOLUTE.  THE ACT AUTHORIZED
SUITS AGAINST THE GOVERNMENT UNDER CERTAIN CONDITIONS.  THE GOVERNMENT
WAS MADE LIABLE FOR INJURY TO PERSONS OR PROPERTY: 

"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."  28 U.S.C. SEC.
1346(B). 

THERE WAS A FURTHER CONDITION, 28 U.S.C. SEC. 2674, THAT THE UNITED
STATES SHOULD BE LIABLE "IN THE SAME MANNER AND TO THE SAME EXTENT AS A
PRIVATE INDIVIDUAL UNDER LIKE CIRCUMSTANCES."  (FN4) 

IN FERES V. UNITED STATES, 340 U.S. 135, WE PASSED UPON THE
APPLICABILITY OF THE ACT TO CLAIMS BY MEMBERS OF THE ARMED SERVICES
INJURED THROUGH THE NEGLIGENCE OF OTHER MILITARY PERSONNEL.  (FN5)  WE
SAID: 

"ONE OBVIOUS SHORTCOMING IN THESE CLAIMS IS THAT PLAINTIFFS CAN POINT
TO NO LIABILITY OF A 'PRIVATE INDIVIDUAL' EVEN REMOTELY ANALOGOUS TO
THAT WHICH THEY ARE ASSERTING AGAINST THE UNITED STATES.  WE KNOW OF NO
AMERICAN LAW WHICH EVER HAS PERMITTED A SOLDIER TO RECOVER FOR
NEGLIGENCE, AGAINST EITHER HIS SUPERIOR OFFICERS OR THE GOVERNMENT HE
IS SERVING.  NOR IS THERE ANY LIABILITY 'UNDER LIKE CIRCUMSTANCES,' FOR
NO PRIVATE INDIVIDUAL HAS POWER TO CONSCRIPT OR MOBILIZE A PRIVATE ARMY
WITH SUCH AUTHORITIES OVER PERSONS AS THE GOVERNMENT VESTS IN ECHELONS
OF COMMAND  ...  .  IN THE USUAL CIVILIAN DOCTOR AND PATIENT
RELATIONSHIP, THERE IS OF COURSE A LIABILITY FOR MALPRACTICE.  AND A
LANDLORD WOULD UNDOUBTEDLY BE HELD LIABLE IF AN INJURY OCCURRED TO A
TENANT AS THE RESULT OF A NEGLIGENTLY MAINTAINED HEATING PLANT.  BUT
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."  ID., AT 141-142. 

THUS, IN FERES THE COURT WAS OF THE VIEW THAT THE ACT DOES NOT CREATE
NEW CAUSES OF ACTION THERETOFORE BEYOND THE APPLICABLE LAW OF TORTS. 
SO, IN DETERMINING WHETHER AN ACTION FOR NEGLIGENCE IN MAINTAINING
PUBLIC LIGHTS IS PERMISSIBLE, WE MUST CONSIDER WHETHER SIMILAR ACTIONS
WERE ALLOWED BY THE LAW OF THE PLACE WHERE THE NEGLIGENCE OCCURRED,
PRIOR TO THE TORT CLAIMS ACT, AGAINST PUBLIC BODIES OTHERWISE SUBJECT
TO SUIT. 

DALEHITE V. UNITED STATES, 346 U.S. 15, 42, FOLLOWED THE REASONING OF
FERES.  THAT CASE INVOLVED, AMONG OTHER ISSUES, THE LIABILITY OF THE
UNITED STATES FOR NEGLIGENCE OF THE COAST GUARD IN FIGHTING FIRE.  THE
COAST GUARD HAD BEEN FOUND NEGLIGENT IN ITS FIRE-FIGHTING DUTIES BY THE
TRIAL COURT.  THESE DUTIES WERE OUTSIDE THE DISCRETIONARY FUNCTION
EXCEPTION OF SEC. 2680(A) OF THE ACT.  RESTING OUR DECISION ON THE ACT
ITSELF, WE SAID THE TORT CLAIMS ACT: 

"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. SECS. 1346 AND 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. SEC. 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."  ID., AT 43-44. 

THESE TWO INTERPRETIVE DECISIONS HAVE NOT CAUSED CONGRESS TO AMEND
THE FEDERAL TORT CLAIMS ACT.  AS A MATTER OF FACT, THE CATASTROPHE THAT
GAVE RISE TO THE DALEHITE CASE WAS SUBSEQUENTLY PRESENTED TO CONGRESS
FOR LEGISLATIVE RELIEF BY WAY OF COMPENSATION FOR THE LOSSES WHICH
RESULTED, AS FOUND BY THE TRIAL COURT, PARTLY FROM THE NEGLIGENCE OF
THE COAST GUARD.  THROUGHOUT THE REPORTS, DISCUSSION AND ENACTMENT OF
THE RELIEF ACT, THERE WAS NO EFFORT TO MODIFY THE TORT CLAIMS ACT SO AS
TO CHANGE THE LAW, IN ANY RESPECT, AS INTERPRETED BY THIS COURT IN
FERES AND DALEHITE.  (FN6)  ALTHOUGH ITS DISCUSSION WAS RESTRICTED
SOLELY TO THE DISCRETIONARY FUNCTION EXCEPTION TO THE ACT, CONGRESS
MUST HAVE ACCEPTED THE RULINGS RELATING TO THE ISSUES HERE INVOLVED AS
IN ACCORD WITH ITS UNDERSTANDING OF THE TORT CLAIMS ACT.  ONE CANNOT
SAY THAT WHEN A STATUTE IS INTERPRETED BY THIS COURT WE MUST FOLLOW
THAT INTERPRETATION IN SUBSEQUENT CASES UNLESS CONGRESS HAS AMENDED THE
STATUTE.  ON THIS OUR CASES CONFLICT.  (FN7)  HOWEVER, WE SHOULD
CONTINUE TO HOLD, AS A MATTER OF STARE DECISIS AND AS THE NORMAL RULE,
THAT INACTION OF CONGRESS, AFTER A WELL-KNOWN AND IMPORTANT DECISION OF
COMMON KNOWLEDGE, IS "AN AID IN STATUTORY CONSTRUCTION  ...  USEFUL AT
TIMES IN RESOLVING STATUTORY AMBIGUITIES."  HELVERING V. REYNOLDS, 313
U.S. 428, 432.  THE NONACTION OF CONGRESS SHOULD DECIDE THIS
CONTROVERSY IN THE LIGHT OF THE PREVIOUS RULINGS.  THE REASONS WHICH
LED TO THE CONCLUSIONS AGAINST CREATING NEW AND NOVEL LIABILITIES IN
THE FERES AND DALEHITE CASES RETAIN THEIR PERSUASIVENESS. 

THIS ENACTMENT, LIKE ANY OTHER, SHOULD BE CONSTRUED SO AS TO
ACCOMPLISH ITS PURPOSE, BUT NOT WITH EXTRAVAGANT GENEROSITY SO AS TO
MAKE THE GOVERNMENT LIABLE IN INSTANCES WHERE NO LIABILITY WAS INTENDED
BY CONGRESS.  IT IS CERTAINLY NOT NECESSARY THAT EVERY WORD IN A
STATUTE RECEIVE THE BROADEST POSSIBLE INTERPRETATION.  IF CONGRESS
INTENDED TO CREATE LIABILITY FOR ALL INCIDENTS NOT THERETOFORE
ACTIONABLE AGAINST SUABLE PUBLIC AGENCIES, THAT INTENTION SHOULD BE
MADE PLAIN.  THE COURTS ARE NOT THE LEGISLATIVE BRANCH OF THE
GOVERNMENT. 

THE ACT MADE THE GOVERNMENT LIABLE IN INSTANCES WHERE IT WOULD BE
SUABLE "IF A PRIVATE PERSON."  THE MEANING OF "PRIVATE PERSON" IS NOT
DISCUSSED IN THE LEGISLATIVE HISTORY.  IN FERES WE TALKED OF PRIVATE
LIABILITY AND CAME TO A CONCLUSION WHICH IS CONTRARY TO THAT REACHED BY
THE COURT TODAY.  SEE PP. 72-73, SUPRA.  WE HELD THAT BECAUSE SURGEONS
IN PRIVATE PRACTICE OR PRIVATE LANDLORDS WERE LIABLE FOR NEGLIGENCE DID
NOT MEAN THE UNITED STATES WAS.  LIABILITY OF GOVERNMENTS FOR THE
FAILURE OF LIGHTHOUSE WARNING LIGHTS IS AS UNKNOWN TO TORT LAW AS, FOR
EXAMPLE, LIABILITY FOR NEGLIGENCE IN FIRE FIGHTING EXCLUDED BY THE
DALEHITE RULING.  LIGHTHOUSE KEEPING IS AS UNIQUELY A GOVERNMENTAL
FUNCTION AS FIRE FIGHTING.  THERE IS AT LEAST SOME UNCERTAINTY AND
AMBIGUITY AS TO WHAT CONGRESS MEANT BY MAKING THE UNITED STATES LIABLE
IN CIRCUMSTANCES WHERE IT WOULD BE LIABLE "IF A PRIVATE PERSON."  THAT
UNCERTAINTY SHOULD NOT LEAD US TO ACCEPT LIABILITY FOR THE UNITED
STATES IN THIS CASE.  IN DEALING WITH THIS ENLARGED CONCEPT OF FEDERAL
LIABILITY FOR TORTS, WISDOM SHOULD DICTATE A CAUTIOUS APPROACH ALONG
THE LINES OF FERES AND DALEHITE. 

THE ACT SAYS THAT THE UNITED STATES SHALL BE LIABLE IN ACCORDANCE
WITH THE LAW OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED.  SEC.
1346(B).  THIS ALLEGED TORT OCCURRED IN LOUISIANA.  UNDER THE LOUISIANA
LAW A MUNICIPAL CORPORATION IS NOT RESPONSIBLE FOR INJURY SUSTAINED AS
A RESULT OF NEGLIGENCE ON THE PART OF THE EMPLOYEES OF A CITY IN THE
MAINTENANCE OF TRAFFIC LIGHTS.  (FN8) STREET TRAFFIC LIGHTS ARE A CLOSE
ANALOGY TO NAVIGATION LIGHTS.  WE CAN SEE NO REASON TO DOUBT THAT UNDER
LOUISIANA LAW THE MAINTENANCE OF NAVIGATION LIGHTS, IF PERMISSIBLE, BY
MUNICIPALITIES WOULD LIKEWISE BE FREE OF LIABILITY.  THE COURT WARNS US
AGAINST THE MORASS OF DECISIONS THAT INVOLVE MUNICIPAL TORT LIABILITY. 
IT CALLS THAT LAW A "QUAGMIRE" AND AVOIDS IT BY A COMPLETE SURRENDER OF
SOVEREIGN IMMUNITY WITHOUT REGARD TO THE LAW OF MUNICIPAL LIABILITY OF
THE RESPECTIVE STATES. 

THE OVER-ALL IMPRESSION FROM THE MAJORITY OPINION IS THAT IT MAKES
THE GOVERNMENT LIABLE UNDER THE ACT FOR NEGLIGENCE IN THE CONDUCT OF
"ANY GOVERNMENTAL ACTIVITY ON THE 'OPERATIONAL LEVEL.'"  IT SEEMS BROAD
ENOUGH TO COVER ALL SO-CALLED "UNIQUELY GOVERNMENTAL ACTIVITIES." 
LOGICALLY IT MAY COVER NEGLIGENCE IN FIRE FIGHTING, ALTHOUGH THE
DALEHITE HOLDING ON THAT POINT IS NOT OVERRULED.  (FN9) PERHAPS
LIABILITY ARISES EVEN FOR INJURIES FROM NEGLIGENCE IN PURSUING
CRIMINALS. 

THE COURT'S LITERAL INTERPRETATION OF THIS ACT BRINGS ABOUT AN
APPLICATION OF THE FEDERAL TORT CLAIMS ACT ANALOGOUS TO THAT CONDEMNED
BY CONGRESS IN THE PORTAL-TO-PORTAL ACT OF 1947 AFTER ANDERSON V. MT.
CLEMENS POTTERY CO., 328 U.S. 680, SEE 61 STAT. 84, SEC. 1(A), AND IN
THE FAIR LABOR STANDARDS AMENDMENTS OF 1949, 63 STAT. 910, AFTER BAY
RIDGE CO. V. AARON, 334 U.S. 446, SEE 2 U.S. CODE CONG. SERV. (1949)
1617.  COMPARE UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S.
534.  THE JUDGMENT SHOULD BE AFFIRMED.    FN1  UNITED STATES COAST
GUARD, LIGHT LIST, ATLANTIC AND GULF COASTS OF THE UNITED STATES,
CORRECTED TO JANUARY 1, 1951 (C.G. 158), PP. 5, 498. 

FN2  14 U.S.C. SEC. 83: 

"NO PERSON, OR PUBLIC BODY, OR INSTRUMENTALITY, EXCLUDING THE ARMED
SERVICES, SHALL ESTABLISH, ERECT, OR MAINTAIN ANY AID TO MARITIME
NAVIGATION WITHOUT FIRST OBTAINING AUTHORITY TO DO SO FROM THE COAST
GUARD IN ACCORDANCE WITH APPLICABLE REGULATIONS.  WHOEVER VIOLATES THE
PROVISIONS OF THIS SECTION OR ANY OF THE REGULATIONS ISSUED BY THE
SECRETARY IN ACCORDANCE HEREWITH SHALL BE GUILTY OF A MISDEMEANOR AND
SHALL BE FINED NOT MORE THAN $100 FOR EACH OFFENSE.  EACH DAY DURING
WHICH SUCH VIOLATION CONTINUES SHALL BE CONSIDERED AS A NEW OFFENSE." 

THE GOVERNMENT ADVISES THAT AS OF JUNE 30, 1953, GOVERNMENT AIDS TO
NAVIGATION NUMBERED 38,169; AUTHORIZED PRIVATE AIDS 3,301.  U.S. COAST
GUARD, AIDS TO NAVIGATION OPERATED AND MAINTAINED BY THE UNITED STATES
COAST GUARD (JUNE 30, 1953) PP. 1, 4. 

WE ARE FURTHER ADVISED: 

"THE COAST GUARD IN ITS MANUAL ON AIDS TO NAVIGATION GIVES THESE
EXAMPLES OF TYPICAL AIDS CONSIDERED IN THE CATEGORY OF PRIVATE AIDS
(U.S. COAST GUARD, AIDS TO NAVIGATION (C.G. 127, 1945) P. 1201):

"(1)  STANDARD BUOY AND LIGHTING EQUIPMENT EMPLOYED BY THE UNITED
STATES ENGINEERS TO MARK DREDGING AREAS. 

"(2)  BUOYS, RANGES AND SOUND SIGNALS IN CHANNELS DREDGED BY PRIVATE
CORPORATIONS TO THEIR PROPERTY, WHICH CHANNELS ARE USED EXCLUSIVELY BY
THE CORPORATION'S, OR ITS CONTRACTOR'S, VESSELS. 

"(3)  AIDS ESTABLISHED BY THE ARMY AND NAVY FOR THEIR OWN USE IN
CONNECTION WITH THE APPROACHES TO LOADING PIERS, ETC. 

"SEE ALSO, U.S. COAST GUARD, AIDS TO NAVIGATION MANUAL (CG-222, JAN.
1953), PP. 4-1, 4-3. 

"COAST GUARD REGULATIONS REQUIRE ALL PERSONS OWNING, OCCUPYING, OR
OPERATING BRIDGES OVER THE NAVIGABLE WATERS OF THE UNITED STATES TO
MAINTAIN AT THEIR OWN EXPENSE SUCH LIGHTS REQUIRED FOR THE SAFETY OF
MARINE NAVIGATION AS MAY BE PRESCRIBED BY THE COMMANDANT.  33 C.F.R.
(1949 ED.)  SEC.  68.01-1.  IN ADDITION, THERE IS A NON-DELEGABLE DUTY
IMPOSED UPON THE OWNER OF A SUNKEN WRECK TO MARK IT.  33 U.S.C. 409; 33
C.F.R. (1949 ED.)  64.01-1." 

FN3  FERES V. UNITED STATES, 340 U.S. 135; DALEHITE V. UNITED STATES,
346 U.S. 15. 

FN4  THERE WERE FURTHER LIMITATIONS AND CERTAIN SPECIFIC EXCEPTIONS
NOT PERTINENT HERE. 

FN5  E.G., THE NEGLIGENCE OF AN ARMY SURGEON DURING AN OPERATION IN
SEWING UP A TOWEL IN THE ABDOMEN OF A SOLDIER; AND NEGLIGENCE IN
QUARTERING A SOLDIER IN BARRACKS KNOWN TO BE UNSAFE BECAUSE OF A
DEFECTIVE HEATING PLANT. 

FN6  69 STAT. 707; H.R. REP. NO. 2024, 83D CONG., 2D SESS.; S. REP.
NO. 2363, 83D CONG., 2D SESS.; H.R. REP. NO. 1305; 84TH CONG., 1ST
SESS.; H.R. REP. NO. 1623, 84TH CONG., 1ST SESS.; S. REP. NO. 684, 84TH
CONG., 1ST SESS. 

FN7  COMPARE UNITED STATES V. ELGIN, J.&E.R. CO., 298 U.S. 492, 500;
UNITED STATES V. SOUTH BUFFALO R. CO., 333 U.S. 771, 775; TOOLSON V.
NEW YORK YANKEES, 346 U.S. 356, WITH HELVERING V. HALLOCK, 309 U.S.
106; COMMISSIONER V. CHURCH, 335 U.S. 632. 

FN8  EDWARDS V. CITY OF SHREVEPORT, 66 SO. 2D 373; CF. HOWARD V. CITY
OF NEW ORLEANS, 159 LA. 443, 105 SO. 443. 

FN9  BUT SEE FOOTNOTE 4 OF THE MAJORITY OPINION, IN WHICH WORKMAN V.
NEW YORK CITY IS CITED. 
..END :








NEESE V. SOUTHERN RAILWAY CO. 350 U.S. 77 


NO. 28.  ARGUED NOVEMBER 7, 1955 - DECIDED NOVEMBER 21, 1955 - 216 F.2D
772, REVERSED. 


1.  THE DISTRICT COURT'S DENIAL OF A NEW TRIAL, UPON REMITTITUR OF
PART OF THE VERDICT IN THIS CASE, WAS NOT WITHOUT SUPPORT IN THE
RECORD, AND ITS ACTION SHOULD NOT HAVE BEEN DISTURBED BY THE COURT OF
APPEALS.  P. 77. 

2.  THIS COURT REFUSES TO DECIDE CONSTITUTIONAL QUESTIONS WHEN THE
RECORD DISCLOSES OTHER GROUNDS OF DECISION, WHETHER OR NOT PROPERLY
RAISED HERE BY THE PARTIES.  P. 78. 

NEESE, ADMINISTRATOR, V. SOUTHERN RAILWAY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

PER CURIAM. 

WE REVERSE THE JUDGMENT OF THE COURT OF APPEALS WITHOUT REACHING THE
CONSTITUTIONAL CHALLENGE TO THAT COURT'S JURISDICTION TO REVIEW THE
DENIAL BY THE TRIAL COURT OF A MOTION FOR A NEW TRIAL ON THE GROUND
THAT THE VERDICT WAS EXCESSIVE.  EVEN ASSUMING SUCH APPELLATE POWER TO
EXIST UNDER THE SEVENTH AMENDMENT, WE FIND THAT THE COURT OF APPEALS
WAS NOT JUSTIFIED, ON THIS RECORD, IN REGARDING THE DENIAL OF A NEW
TRIAL, UPON A REMITTITUR OF PART OF THE VERDICT, AS AN ABUSE OF
DISCRETION.  FOR APART FROM THAT QUESTION, AS WE VIEW THE EVIDENCE WE
THINK THAT THE ACTION OF THE TRIAL COURT WAS NOT WITHOUT SUPPORT IN THE
RECORD, AND ACCORDINGLY THAT ITS ACTION SHOULD NOT HAVE BEEN DISTURBED
BY THE COURT OF APPEALS. 

WE NEED NOT CONSIDER RESPONDENT'S CONTENTION THAT ONLY THE
JURISDICTIONAL QUESTION WAS PRESENTED BY THE PETITION FOR CERTIORARI,
FOR IN REVERSING ON THE ABOVE GROUND WE FOLLOW THE TRADITIONAL PRACTICE
OF THIS COURT OF REFUSING TO DECIDE CONSTITUTIONAL QUESTIONS WHEN THE
RECORD DISCLOSES OTHER GROUNDS OF DECISION, WHETHER OR NOT THEY HAVE
BEEN PROPERLY RAISED BEFORE US BY THE PARTIES.  SEE PETERS V. HOBBY,
349 U.S. 331, 338; ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE CO., 329 U.S.
129, 132, 136, 142. 
..END :










UNITED STATES, TOTH V. QUARLES 350 U.S. 11 


NO. 3.  ARGUED FEBRUARY 8-9, 1955 - RESTORED TO DOCKET FOR REARGUMENT
JUNE 6, 1955 - REARGUED OCTOBER 13, 1955 - DECIDED NOVEMBER 7, 1955 -
94 U.S. APP. D.C. 28, 215 F.2D 22, REVERSED. 


FIVE MONTHS AFTER HE HAD BEEN HONORABLY DISCHARGED FROM THE UNITED
STATES AIR FORCE AND HAD RETURNED TO HIS HOME AND WAS PRIVATELY
EMPLOYED, AN EX-SERVICEMAN WAS ARRESTED BY MILITARY AUTHORITIES ON
CHARGES OF MURDER AND CONSPIRACY TO COMMIT MURDER WHILE HE WAS AN
AIRMAN IN KOREA.  WHEN ARRESTED HE HAD NO RELATIONSHIP OF ANY KIND WITH
THE MILITARY.  UNDER AUTHORITY OF ART. 3(A) OF THE UNIFORM CODE OF
MILITARY JUSTICE, HE WAS TAKEN TO KOREA TO STAND TRIAL BEFORE A COURT
MARTIAL.  HELD:  HE COULD NOT CONSTITUTIONALLY BE SUBJECTED TO TRIAL BY
COURT-MARTIAL.  PP. 13-23. 

1.  THE ACT CANNOT BE SUSTAINED AS AN APPROPRIATE EXERCISE OF THE
CONSTITUTIONAL POWER OF CONGRESS "TO RAISE AND SUPPORT ARMIES," "TO
DECLARE WAR," OR TO PUNISH "OFFENCES AGAINST THE LAW OF NATIONS."   PP.
13-14. 

2.  THIS ASSERTION OF MILITARY AUTHORITY OVER CIVILIANS CANNOT REST
ON THE PRESIDENT'S POWER AS COMMANDER-IN-CHIEF, NOR ON ANY THEORY OF
MARTIAL LAW.  P. 14. 

3.  THE FIFTH AMENDMENT DOES NOT GRANT COURT-MARTIAL POWER TO
CONGRESS; IT MERELY MAKES CLEAR THAT THERE NEED BE NO INDICTMENT FOR
SUCH MILITARY OFFENSES AS CONGRESS CAN AUTHORIZE MILITARY TRIBUNALS TO
TRY UNDER ITS ARTICLE I POWER TO MAKE RULES TO GOVERN THE ARMED
FORCES.  P. 14, N. 5. 

4.  THE ACT IS NOT A VALID EXERCISE OF THE POWER GRANTED CONGRESS IN
ARTICLE I OF THE CONSTITUTION "TO MAKE RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES," AS SUPPLEMENTED BY THE
NECESSARY AND PROPER CLAUSE.  PP. 14-23. 

(A)  THE POWER GRANTED CONGRESS "TO MAKE RULES" TO REGULATE "THE LAND
AND NAVAL FORCES" IS TO BE CONSTRUED AS RESTRICTING COURT-MARTIAL
JURISDICTION TO PERSONS WHO HAVE A RELATIONSHIP WITH THE ARMED FORCES. 
P. 15. 

(B)  THIS CONSTRUCTION IS REQUIRED BY THE FACT THAT ANY SUCH
EXPANSION OF COURT-MARTIAL JURISDICTION AS THE ACT PROVIDES NECESSARILY
ENCROACHES ON THE JURISDICTION OF FEDERAL COURTS SET UP UNDER ARTICLE
III OF THE CONSTITUTION, WHERE PERSONS ON TRIAL ARE SURROUNDED WITH
MORE CONSTITUTIONAL SAFEGUARDS THAN IN MILITARY TRIBUNALS.  PP. 15-20. 

(C)  IT IS WITHIN THE CONSTITUTIONAL POWER OF CONGRESS TO PROVIDE FOR
FEDERAL DISTRICT COURT TRIALS OF DISCHARGED SOLDIERS ACCUSED OF
OFFENSES COMMITTED WHILE IN THE ARMED SERVICES.  PP. 20-21. 

(D)  THE CONSTITUTIONAL GRANT OF POWER TO CONGRESS TO REGULATE THE
ARMED FORCES DOES NOT EMPOWER CONGRESS TO DEPRIVE CIVILIANS OF TRIALS
UNDER BILL OF RIGHTS SAFEGUARDS; AND POWER TO CIRCUMVENT THOSE
SAFEGUARDS IS NOT TO BE INFERRED FROM THE NECESSARY AND PROPER CLAUSE. 
PP. 21-22. 

(E)  A DIFFERENT RESULT THAN THAT HERE REACHED IS NOT REQUIRED BY THE
FACT THAT SOME OTHER COUNTRIES WHICH DO NOT HAVE OUR BILL OF RIGHTS
SUBJECT CIVILIANS WHO WERE ONCE SOLDIERS TO TRIALS BY COURT-MARTIAL
RATHER THAN TO TRIALS BY CIVILIAN COURTS.  P. 22. 

(F)  CONSIDERATIONS OF DISCIPLINE IN THE ARMED FORCES DO NOT WARRANT
EXPANSION OF COURT-MARTIAL JURISDICTION AT THE EXPENSE OF THE NORMAL
AND CONSTITUTIONALLY PREFERABLE SYSTEM OF TRIAL BY JURY.  PP. 22-23. 

(G)  EX-SERVICEMEN, LIKE OTHER CIVILIANS, ARE ENTITLED TO HAVE THE
BENEFIT OF SAFEGUARDS AFFORDED THOSE TRIED IN THE REGULAR COURTS
AUTHORIZED BY ARTICLE III OF THE CONSTITUTION.  P. 23. 

UNITED STATES EX REL. TOTH V. QUARLES, SECRETARY OF THE AIR FORCE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AFTER SERVING WITH THE UNITED STATES AIR FORCE IN KOREA, ROBERT W.
TOTH WAS HONORABLY DISCHARGED.  HE RETURNED TO HIS HOME IN PITTSBURGH
AND WENT TO WORK IN A STEEL PLANT.  FIVE MONTHS LATER HE WAS ARRESTED
BY MILITARY AUTHORITIES ON CHARGES OF MURDER AND CONSPIRACY TO COMMIT
MURDER WHILE AN AIRMAN IN KOREA.  (FN1)  AT THE TIME OF ARREST HE HAD
NO RELATIONSHIP OF ANY KIND WITH THE MILITARY.   HE WAS TAKEN TO KOREA
TO STAND TRIAL BEFORE A COURT-MARTIAL UNDER AUTHORITY OF A 1950 ACT OF
CONGRESS.  (FN2)  THE COURT OF APPEALS SUSTAINED THE ACT, REJECTING THE
CONTENTION THAT CIVILIAN EX-SERVICEMEN LIKE TOTH COULD NOT
CONSTITUTIONALLY BE SUBJECTED TO TRIAL BY COURT-MARTIAL.  94 U.S. APP.
D.C. 28, 215 F.2D 22.  WE GRANTED CERTIORARI TO PASS UPON THIS
IMPORTANT CONSTITUTIONAL QUESTION.  348 U.S. 809.  (FN3) 

THE 1950 ACT CANNOT BE SUSTAINED ON THE CONSTITUTIONAL POWER OF
CONGRESS "TO RAISE AND SUPPORT ARMIES," "TO DECLARE WAR," OR TO PUNISH
"OFFENCES AGAINST THE LAW OF NATIONS."  (FN4)  AND THIS ASSERTION OF
MILITARY AUTHORITY OVER CIVILIANS CANNOT REST ON THE PRESIDENT'S POWER
AS COMMANDER-IN-CHIEF, OR ON ANY THEORY OF MARTIAL LAW.  SEE EX PARTE
MILLIGAN, 4 WALL.  2, 124-127.  THE GOVERNMENT'S CONTENTION IS THAT THE
ACT IS A VALID EXERCISE OF THE POWER GRANTED CONGRESS IN ARTICLE I OF
THE CONSTITUTION "TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF
THE LAND AND NAVAL FORCES," AS SUPPLEMENTED BY THE NECESSARY AND PROPER
CLAUSE.  (FN5) 

THIS COURT HAS HELD THAT THE ARTICLE I CLAUSE JUST QUOTED AUTHORIZES
CONGRESS TO SUBJECT PERSONS ACTUALLY IN THE ARMED SERVICE TO TRIAL BY
COURT-MARTIAL FOR MILITARY AND NAVAL OFFENSES.  (FN6) LATER IT WAS HELD
THAT COURT-MARTIAL JURISDICTION COULD BE EXERTED OVER A DISHONORABLY
DISCHARGED SOLDIER THEN A MILITARY PRISONER SERVING A SENTENCE IMPOSED
BY A PRIOR COURT-MARTIAL.  (FN7)  IT HAS NEVER BEEN INTIMATED BY THIS
COURT, HOWEVER, THAT ARTICLE I MILITARY JURISDICTION COULD BE EXTENDED
TO CIVILIAN EX-SOLDIERS WHO HAD SEVERED ALL RELATIONSHIP WITH THE
MILITARY AND ITS INSTITUTIONS.  (FN8)  TO ALLOW THIS EXTENSION OF
MILITARY AUTHORITY WOULD REQUIRE AN EXTREMELY BROAD CONSTRUCTION OF THE
LANGUAGE USED IN THE CONSTITUTIONAL PROVISION RELIED ON.  FOR GIVEN ITS
NATURAL MEANING, THE POWER GRANTED CONGRESS "TO MAKE RULES" TO REGULATE
"THE LAND AND NAVAL FORCES" WOULD SEEM TO RESTRICT COURT-MARTIAL
JURISDICTION TO PERSONS WHO ARE ACTUALLY MEMBERS OR PART OF THE ARMED
FORCES.  THERE IS A COMPELLING REASON FOR CONSTRUING THE CLAUSE THIS
WAY:  ANY EXPANSION OF COURT-MARTIAL JURISDICTION LIKE THAT IN THE 1950
ACT NECESSARILY ENCROACHES ON THE JURISDICTION OF FEDERAL COURTS SET UP
UNDER ARTICLE III OF THE CONSTITUTION WHERE PERSONS ON TRIAL ARE
SURROUNDED WITH MORE CONSTITUTIONAL SAFEGUARDS THAN IN MILITARY
TRIBUNALS. 

ARTICLE III PROVIDES FOR THE ESTABLISHMENT OF A COURT SYSTEM AS ONE
OF THE SEPARATE BUT COORDINATE BRANCHES OF THE NATIONAL GOVERNMENT.  IT
IS THE PRIMARY, INDEED THE SOLE BUSINESS OF THESE COURTS TO TRY CASES
AND CONTROVERSIES BETWEEN INDIVIDUALS AND BETWEEN INDIVIDUALS AND THE
GOVERNMENT.  THIS INCLUDES TRIAL OF CRIMINAL CASES.  THESE COURTS ARE
PRESIDED OVER BY JUDGES APPOINTED FOR LIFE, SUBJECT ONLY TO REMOVAL BY
IMPEACHMENT.  THEIR COMPENSATION CANNOT BE DIMINISHED DURING THEIR
CONTINUANCE IN OFFICE.  THE PROVISIONS OF ARTICLE III WERE DESIGNED TO
GIVE JUDGES MAXIMUM FREEDOM FROM POSSIBLE COERCION OR INFLUENCE BY THE
EXECUTIVE OR LEGISLATIVE BRANCHES OF THE GOVERNMENT.  BUT THE
CONSTITUTION AND THE AMENDMENTS IN THE BILL OF RIGHTS SHOW THAT THE
FOUNDERS WERE NOT SATISFIED WITH LEAVING DETERMINATION OF GUILT OR
INNOCENCE TO JUDGES, EVEN THOUGH WHOLLY INDEPENDENT.  THEY FURTHER
PROVIDED THAT NO PERSON SHOULD BE HELD TO ANSWER IN THOSE COURTS FOR
CAPITAL OR OTHER INFAMOUS CRIMES UNLESS ON THE PRESENTMENT OR
INDICTMENT OF A GRAND JURY DRAWN FROM THE BODY OF THE PEOPLE.  OTHER
SAFEGUARDS DESIGNED TO PROTECT DEFENDANTS AGAINST OPPRESSIVE
GOVERNMENTAL PRACTICES WERE INCLUDED.  ONE OF THESE WAS CONSIDERED SO
IMPORTANT TO LIBERTY OF THE INDIVIDUAL THAT IT APPEARS IN TWO PARTS OF
THE CONSTITUTION.  ARTICLE III, SEC. 2, COMMANDS THAT THE "TRIAL OF ALL
CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY JURY; AND SUCH
TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID CRIMES SHALL HAVE BEEN
COMMITTED; BUT WHEN NOT COMMITTED WITHIN ANY STATE, THE TRIAL SHALL BE
AT SUCH PLACE OR PLACES AS THE CONGRESS MAY BY LAW HAVE DIRECTED."  AND
THE SIXTH AMENDMENT PROVIDES THAT "IN ALL CRIMINAL PROSECUTIONS, THE
ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN
IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE
BEEN COMMITTED  ...  ."  THIS RIGHT OF TRIAL BY JURY RANKS VERY HIGH IN
OUR CATALOGUE OF CONSTITUTIONAL SAFEGUARDS.  (FN9) 

WE FIND NOTHING IN THE HISTORY OR CONSTITUTIONAL TREATMENT OF
MILITARY TRIBUNALS WHICH ENTITLES THEM TO RANK ALONG WITH ARTICLE III
COURTS AS ADJUDICATORS OF THE GUILT OR INNOCENCE OF PEOPLE CHARGED WITH
OFFENSES FOR WHICH THEY CAN BE DEPRIVED OF THEIR LIFE, LIBERTY OR
PROPERTY.  UNLIKE COURTS, IT IS THE PRIMARY BUSINESS OF ARMIES AND
NAVIES TO FIGHT OR BE READY TO FIGHT WARS SHOULD THE OCCASION ARISE. 
BUT TRIAL OF SOLDIERS TO MAINTAIN DISCIPLINE IS MERELY INCIDENTAL TO AN
ARMY'S PRIMARY FIGHTING FUNCTION.  TO THE EXTENT THAT THOSE RESPONSIBLE
FOR PERFORMANCE OF THIS PRIMARY FUNCTION ARE DIVERTED FROM IT BY THE
NECESSITY OF TRYING CASES, THE BASIC FIGHTING PURPOSE OF ARMIES IS NOT
SERVED.  AND CONCEDING TO MILITARY PERSONNEL THAT HIGH DEGREE OF
HONESTY AND SENSE OF JUSTICE WHICH NEARLY ALL OF THEM UNDOUBTEDLY HAVE,
IT STILL REMAINS TRUE THAT MILITARY TRIBUNALS HAVE NOT BEEN AND
PROBABLY NEVER CAN BE CONSTITUTED IN SUCH WAY THAT THEY CAN HAVE THE
KIND OF QUALIFICATIONS THAT THE CONSTITUTION HAS DEEMED ESSENTIAL TO
FAIR TRIALS OF CIVILIANS IN FEDERAL COURTS.  FOR INSTANCE, THE
CONSTITUTION DOES NOT PROVIDE LIFE TENURE FOR THOSE PERFORMING JUDICIAL
FUNCTIONS IN MILITARY TRIALS.  THEY ARE APPOINTED BY MILITARY
COMMANDERS AND MAY BE REMOVED AT WILL.  NOR DOES THE CONSTITUTION
PROTECT THEIR SALARIES AS IT DOES JUDICIAL SALARIES.  STRIDES HAVE BEEN
MADE TOWARD MAKING COURTS-MARTIAL LESS SUBJECT TO THE WILL OF THE
EXECUTIVE DEPARTMENT WHICH APPOINTS, SUPERVISES AND ULTIMATELY CONTROLS
THEM.  BUT FROM THE VERY NATURE OF THINGS, COURTS HAVE MORE
INDEPENDENCE IN PASSING ON THE LIFE AND LIBERTY OF PEOPLE THAN DO
MILITARY TRIBUNALS. 

MOREOVER, THERE IS A GREAT DIFFERENCE BETWEEN TRIAL BY JURY AND TRIAL
BY SELECTED MEMBERS OF THE MILITARY FORCES.  IT IS TRUE THAT MILITARY
PERSONNEL BECAUSE OF THEIR TRAINING AND EXPERIENCE MAY BE ESPECIALLY
COMPETENT TO TRY SOLDIERS FOR INFRACTIONS OF MILITARY RULES.  SUCH
TRAINING IS NO DOUBT PARTICULARLY IMPORTANT WHERE AN OFFENSE CHARGED
AGAINST A SOLDIER IS PURELY MILITARY, SUCH AS DISOBEDIENCE OF AN ORDER,
LEAVING POST, ETC.  BUT WHETHER RIGHT OR WRONG, THE PREMISE UNDERLYING
THE CONSTITUTIONAL METHOD FOR DETERMINING GUILT OR INNOCENCE IN FEDERAL
COURTS IS THAT LAYMEN ARE BETTER THAN SPECIALISTS TO PERFORM THIS
TASK.  THIS IDEA IS INHERENT IN THE INSTITUTION OF TRIAL BY JURY. 

JURIES FAIRLY CHOSEN FROM DIFFERENT WALKS OF LIFE BRING INTO THE JURY
BOX A VARIETY OF DIFFERENT EXPERIENCES, FEELINGS, INTUITIONS AND
HABITS.  (FN10)  SUCH JURIES MAY REACH COMPLETELY DIFFERENT CONCLUSIONS
THAN WOULD BE REACHED BY SPECIALISTS IN ANY SINGLE FIELD, INCLUDING
SPECIALISTS IN THE MILITARY FIELD.  (FN11)  ON MANY OCCASIONS, FULLY
KNOWN TO THE FOUNDERS OF THIS COUNTRY, JURORS - PLAIN PEOPLE - HAVE
MANFULLY STOOD UP IN DEFENSE OF LIBERTY AGAINST THE IMPORTUNITIES OF
JUDGES AND DESPITE PREVAILING HYSTERIA AND PREJUDICES.  (FN12)  THE
ACQUITTAL OF WILLIAM PENN IS AN ILLUSTRIOUS EXAMPLE.  (FN13)
UNFORTUNATELY, INSTANCES COULD ALSO BE CITED WHERE JURORS HAVE
THEMSELVES BETRAYED THE CAUSE OF JUSTICE BY VERDICTS BASED ON PREJUDICE
OR PRESSURES.  IN SUCH CIRCUMSTANCES INDEPENDENT TRIAL JUDGES AND
INDEPENDENT APPELLATE JUDGE HAVE A MOST IMPORTANT PLACE UNDER OUR
CONSTITUTIONAL PLAN SINCE THEY HAVE POWER TO SET ASIDE CONVICTIONS. 
(FN14) 

THE 1950 ACT HERE CONSIDERED DEPRIVES OF JURY TRIAL AND SWEEPS UNDER
MILITARY JURISDICTION OVER 3,000,000 PERSONS WHO HAVE BECOME VETERANS
SINCE THE ACT BECAME EFFECTIVE.  THAT NUMBER IS BOUND TO GROW FROM YEAR
TO YEAR; THERE ARE NOW MORE THAN 3,000,000 MEN AND WOMEN IN UNIFORM. 
(FN15)  THESE FIGURES POINT UP WHAT WOULD BE THE ENORMOUS SCOPE OF A
HOLDING THAT CONGRESS COULD SUBJECT EVERY EX-SERVICEMAN AND WOMAN IN
THE LAND TO TRIAL BY COURT-MARTIAL FOR ANY ALLEGED OFFENSE COMMITTED
WHILE HE OR SHE HAD BEEN A MEMBER OF THE ARMED FORCES.  EVERY VETERAN
DISCHARGED SINCE PASSAGE OF THE 1950 ACT IS SUBJECT TO MILITARY TRIAL
FOR ANY OFFENSE PUNISHABLE BY AS MUCH AS FIVE YEARS' IMPRISONMENT
UNLESS THE OFFENSE IS NOW PUNISHABLE IN A CIVILIAN COURT.  AND ONE NEED
ONLY GLANCE AT THE MILITARY CODE TO SEE WHAT A VAST NUMBER AND VARIETY
OF OFFENSES ARE THUS BROUGHT UNDER MILITARY JURISDICTION.  (FN16)
INCLUDED WITHIN THESE ARE CRIMES SUCH AS MURDER, CONSPIRACY, ABSENCE
WITHOUT LEAVE, CONTEMPT TOWARD OFFICIALS, DISRESPECT TOWARD SUPERIOR
OFFICERS, WILLFUL OR NEGLECTFUL LOSS, DAMAGE, OR DESTRUCTION OF
GOVERNMENT PROPERTY, MAKING FALSE OFFICIAL STATEMENTS, DUELING, BREACH
OF THE PEACE, FORGERY, FRAUD, ASSAULT, AND MANY OTHERS.  (FN17)  IT IS
TRUE THAT WITH REFERENCE TO SOME OF THESE OFFENSES, VERY MINOR ONES,
VETERANS CANNOT NOW BE TRIED BECAUSE OF A PRESIDENTIAL ORDER FIXING THE
PUNISHMENT FOR SUCH OFFENSES AT LESS THAN FIVE YEARS.  (FN18)  BUT THAT
AMELIORATION OF THE MILITARY CODE MAY BE TEMPORARY, SINCE PUNISHMENT
CAN BE RAISED OR LOWERED AT THE WILL OF THE PRESIDENT.  IT IS ALSO TRUE
THAT UNDER THE PRESENT LAW COURTS-MARTIAL HAVE JURISDICTION ONLY IF NO
CIVILIAN COURT DOES.  BUT THAT MIGHT ALSO BE CHANGED BY CONGRESS.  THUS
THERE IS NO JUSTIFICATION FOR TREATING THE ACT AS A MERE MINOR INCREASE
OF CONGRESSIONAL POWER TO EXPAND MILITARY JURSIDICTION.  IT IS A GREAT
CHANGE, BOTH ACTUALLY AND POTENTIALLY. 

FEAR HAS BEEN EXPRESSED THAT IF THIS LAW IS NOT SUSTAINED DISCHARGED
SOLDIERS MAY ESCAPE PUNISHMENT ALTOGETHER FOR CRIMES THEY COMMIT WHILE
IN THE SERVICE.  BUT THAT FEAR IS NOT WARRANTED AND WAS NOT SHARED BY
THE JUDGE ADVOCATE GENERAL OF THE ARMY WHO MADE A STRONG STATEMENT
AGAINST PASSAGE OF THE LAW.  (FN19)  HE ASKED CONGRESS TO "CONFER
JURISDICTION UPON FEDERAL COURTS TO TRY ANY PERSON FOR AN OFFENSE
DENOUNCED BY THE MILITARY CODE IF HE IS NO LONGER SUBJECT THERETO. 
THIS WOULD BE CONSISTENT WITH THE FIFTH AMENDMENT OF THE
CONSTITUTION."  THE JUDGE ADVOCATE GENERAL WENT ON TO TELL CONGRESS
THAT "IF YOU EXPRESSLY CONFER JURISDICTION ON THE FEDERAL COURTS TO TRY
SUCH CASES, YOU PRESERVE THE CONSTITUTIONAL SEPARATION OF MILITARY AND
CIVIL COURTS, YOU SAVE THE MILITARY FROM A LOT OF UNMERITED GRIEF, AND
YOU PROVIDE FOR A CLEAN, CONSTITUTIONAL METHOD FOR DISPOSING OF SUCH
CASES."  IT IS CONCEDED THAT IT WAS WHOLLY WITHIN THE CONSTITUTIONAL
POWER OF CONGRESS TO FOLLOW THIS SUGGESTION AND PROVIDE FOR FEDERAL
DISTRICT COURT TRIALS OF DISCHARGED SOLDIERS ACCUSED OF OFFENSES
COMMITTED WHILE IN THE ARMED SERVICES.  THIS CONCESSION IS JUSTIFIED. 
U.S. CONST., ART. III, SEC. 2; AND SEE, E.G., JONES V. UNITED STATES,
137 U.S. 202, 211-212; UNITED STATES V. BOWMAN, 260 U.S. 94, 97-98;
SKIRIOTES V. FLORIDA, 313 U.S. 69, 73-74.  THERE CAN BE NO VALID
ARGUMENT, THEREFORE, THAT CIVILIAN EX-SERVICEMEN MUST BE TRIED BY COURT
MARTIAL OR NOT TRIED AT ALL.  IF THAT IS SO IT IS ONLY BECAUSE CONGRESS
HAS NOT SEEN FIT TO SUBJECT THEM TO TRIAL IN FEDERAL DISTRICT COURTS. 

NONE OF THE OTHER REASONS SUGGESTED BY THE GOVERNMENT ARE SUFFICIENT
TO JUSTIFY A BROAD CONSTRUCTION OF THE CONSTITUTIONAL GRANT OF POWER TO
CONGRESS TO REGULATE THE ARMED FORCES.  THAT PROVISION ITSELF DOES NOT
EMPOWER CONGRESS TO DEPRIVE PEOPLE OF TRIALS UNDER BILL OF RIGHTS
SAFEGUARDS, AND WE ARE NOT WILLING TO HOLD THAT POWER TO CIRCUMVENT
THOSE SAFEGUARDS SHOULD BE INFERRED THROUGH THE NECESSARY AND PROPER
CLAUSE.  IT IS IMPOSSIBLE TO THINK THAT THE DISCIPLINE OF THE ARMY IS
GOING TO BE DISRUPTED, ITS MORALE IMPAIRED, OR ITS ORDERLY PROCESSES
DISTURBED, BY GIVING EX-SERVICEMEN THE BENEFIT OF A CIVILIAN COURT
TRIAL WHEN THEY ARE ACTUALLY CIVILIANS.  AND WE ARE NOT IMPRESSED BY
THE FACT THAT SOME OTHER COUNTRIES WHICH DO NOT HAVE OUR BILL OF RIGHTS
INDULGE IN THE PRACTICE OF SUBJECTING CIVILIANS WHO WERE ONCE SOLDIERS
TO TRIALS BY COURTS-MARTIAL INSTEAD OF TRIALS BY CIVILIAN COURTS. 
(FN20) 

THERE ARE DANGERS LURKING IN MILITARY TRIALS WHICH WERE SOUGHT TO BE
AVOIDED BY THE BILL OF RIGHTS AND ARTICLE III OF OUR CONSTITUTION. 
FREE COUNTRIES OF THE WORLD HAVE TRIED TO RESTRICT MILITARY TRIBUNALS
TO THE NARROWEST JURISDICTION DEEMED ABSOLUTELY ESSENTIAL TO
MAINTAINING DISCIPLINE AMONG TROOPS IN ACTIVE SERVICE.  EVEN AS LATE AS
THE SEVENTEENTH CENTURY STANDING ARMIES AND COURTS-MARTIAL WERE NOT
ESTABLISHED INSTITUTIONS IN ENGLAND.  (FN21)  COURT-MARTIAL
JURISDICTION SPRANG FROM THE BELIEF THAT WITHIN THE MILITARY RANKS
THERE IS NEED FOR A PROMPT, READY-AT-HAND MEANS OF COMPELLING OBEDIENCE
AND ORDER.  BUT ARMY DISCIPLINE WILL NOT BE IMPROVED BY COURT
MARTIALING RATHER THAN TRYING BY JURY SOME CIVILIAN EX-SOLDIER WHO HAS
BEEN WHOLLY SEPARATED FROM THE SERVICE FOR MONTHS, YEARS OR PERHAPS
DECADES.  CONSEQUENTLY CONSIDERATIONS OF DISCIPLINE PROVIDE NO EXCUSE
FOR NEW EXPANSION OF COURT-MARTIAL JURISDICTION AT THE EXPENSE OF THE
NORMAL AND CONSTITUTIONALLY PREFERABLE SYSTEM OF TRIAL BY JURY. 
(FN22)    DETERMINING THE SCOPE OF THE CONSTITUTIONAL POWER OF CONGRESS
TO AUTHORIZE TRIAL BY COURT-MARTIAL PRESENTS ANOTHER INSTANCE CALLING
FOR LIMITATION TO "THE LEAST POSSIBLE POWER ADEQUATE TO THE END
PROPOSED."  (FN23)  WE HOLD THAT CONGRESS CANNOT SUBJECT CIVILIANS LIKE
TOTH TO TRIAL BY COURT-MARTIAL.  THEY, LIKE OTHER CIVILIANS, ARE
ENTITLED TO HAVE THE BENEFIT OF SAFEGUARDS AFFORDED THOSE TRIED IN THE
REGULAR COURTS AUTHORIZED BY ARTICLE III OF THE CONSTITUTION. 
REVERSED. 

FN1  THE CHARGES WERE VIOLATIONS OF ARTICLES 118 AND 81 OF THE
UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 140, 134, 50 U.S.C. SECS.
712 AND 675. 

FN2  ART. 3(A), UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 109, 50
U.S.C. SEC. 553, PROVIDES: "SUBJECT TO THE PROVISIONS OF ARTICLE 43,
ANY PERSON CHARGED WITH HAVING COMMITTED, WHILE IN A STATUS IN WHICH HE
WAS SUBJECT TO THIS CODE, AN OFFENSE AGAINST THIS CODE, PUNISHABLE BY
CONFINEMENT OF FIVE YEARS OR MORE AND FOR WHICH THE PERSON CANNOT BE
TRIED IN THE COURTS OF THE UNITED STATES OR ANY STATE OR TERRITORY
THEREOF OR OF THE DISTRICT OF COLUMBIA, SHALL NOT BE RELIEVED FROM
AMENABILITY TO TRIAL BY COURTS-MARTIAL BY REASON OF THE TERMINATION OF
SAID STATUS." 

FN3  THIS HABEAS CORPUS PROCEEDING WAS BROUGHT IN THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA BY TOTH'S SISTER WHILE HE WAS HELD IN
KOREA.  WITHOUT PASSING ON ANY CONSTITUTIONAL QUESTION THE DISTRICT
COURT ORDERED TOTH DISCHARGED ON THE GROUND THAT HE SHOULD NOT HAVE
BEEN CARRIED TO KOREA FOR TRIAL WITHOUT A HEARING.  113 F. SUPP. 330,
114 F. SUPP. 468. 

FN4  SEE EX PARTE QUIRIN, 317 U.S. 1; IN RE YAMASHITA, 327 U.S. 1. 

FN5  THE FIFTH AMENDMENT PROVIDES THAT "NO PERSON SHALL BE HELD TO
ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A
PRESENTMENT OR INDICTMENT OF A GRAND JURY, 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  ...  ."  THIS PROVISION DOES NOT GRANT
COURT-MARTIAL POWER TO CONGRESS; IT MERELY MAKES CLEAR THAT THERE NEED
BE NO INDICTMENT FOR SUCH MILITARY OFFENSES AS CONGRESS CAN AUTHORIZE
MILITARY TRIBUNALS TO TRY UNDER ITS ARTICLE I POWER TO MAKE RULES TO
GOVERN THE ARMED FORCES. 

FN6  DYNES V. HOOVER, 20 HOW.  65. 

FN7  KAHN V. ANDERSON, 255 U.S. 1. 

FN8  IN 1863 CONGRESS PASSED A STATUTE AUTHORIZING TRIAL OF EX
SOLDIERS FOR COMMISSION OF FRAUD AGAINST THE GOVERNMENT WHILE IN THE
SERVICE; THIS LAW ALSO AUTHORIZED COURT-MARTIAL TRIAL OF CONTRACTORS
NOT PART OF THE MILITARY FORCES.  12 STAT. 696.  THE LATTER PROVISION
OF THE 1863 LAW APPEARS NEVER TO HAVE BEEN SUSTAINED BY ANY COURT. 
LOWER COURTS HAVE DISAGREED AS TO THE CONSTITUTIONAL VALIDITY OF THE
PROVISION AUTHORIZING EX-SOLDIERS TO BE TRIED.  SEE, E.G., IN RE
BOGART, 3 FED. CAS. 796.  COMPARE EX PARTE HENDERSON, 11 FED. CAS.
1067; UNITED STATES EX REL. FLANNERY V. COMMANDING GENERAL, 69 F. SUPP.
661, REVERSED BY STIPULATION IN UNREPORTED ORDER OF THE SECOND CIRCUIT,
NO. 20235, APRIL 18, 1946.  SEE UNITED STATES EX REL. HIRSHBERG V.
COOKE, 336 U.S. 210.  A STATUTE AUTHORIZING COURT-MARTIAL TRIAL OF
INMATES OF THE SOLDIERS' HOME HAS BEEN RULED UNCONSTITUTIONAL BY THE
JUDGE ADVOCATE GENERAL OF THE ARMY.  DIG.  OP. J.A.G.  (1912), PP.
1010, 1012.  IT WAS DECLARED THAT "SUCH INMATES ARE NOT A PART OF THE
ARMY OF THE UNITED STATES, BUT ARE CIVILIANS."  ID., AT 1012.  COL.
WINTHROP, CONCEDEDLY A LEADING AUTHORITY ON MILITARY LAW, EXPRESSED THE
VIEW THAT "THIS CLASS OF STATUTES, WHICH IN TERMS OR INFERENTIALLY
SUBJECT PERSONS FORMERLY IN THE ARMY, BUT BECOME FINALLY AND LEGALLY
SEPARATED FROM IT, TO TRIAL BY COURT-MARTIAL, ARE ALL NECESSARILY AND
ALIKE UNCONSTITUTIONAL  ...  ."  1 WINTHROP, MILITARY LAW AND
PRECEDENTS (2D ED. 1896), 146.  THE WAR DEPARTMENT REPRINTED THIS
CLASSIC VOLUME FOR THE GUIDANCE OF THE ARMY IN 1920.  WINTHROP,
MILITARY LAW AND PRECEDENTS (2D ED., REPRINT 1920). 

FN9  A DECLARATION OF RIGHTS ADOPTED BY NINE COLONIES IN 1765
CONTAINED THIS STATEMENT: "THAT TRIAL BY JURY, IS THE INHERENT AND
INVALUABLE RIGHT OF EVERY BRITISH SUBJECT IN THESE COLONIES."  HARVARD
CLASSICS, VOLUME 43, P. 148.  THE DECLARATION OF INDEPENDENCE STATED AS
ONE OF THE GRIEVANCES OF THE COLONIES THAT THE KING OF GREAT BRITAIN
HAD DEPRIVED THE COLONISTS OF THE BENEFITS OF TRIAL BY JURY IN MANY
CASES AND THAT HE HAD "AFFECTED TO RENDER THE MILITARY INDEPENDENT OF
AND SUPERIOR TO THE CIVIL POWER."  ANOTHER CHARGE WAS THAT HE HAD
TRANSPORTED COLONIALS "BEYOND SEAS TO BE TRIED FOR PRETENDED
OFFENCES." 

FN10  CHIEF JUSTICE COOLEY SAID:  "THE TRIAL OF CRIMINAL CASES IS BY
A JURY OF THE COUNTRY, AND NOT BY THE COURT.  THE JURORS, AND THEY
ALONE, ARE TO JUDGE OF THE FACTS, AND WEIGH THE EVIDENCE.  THE LAW HAS
ESTABLISHED THIS TRIBUNAL BECAUSE IT IS BELIEVED THAT, FROM ITS
NUMBERS, THE MODE OF THEIR SELECTION, AND THE FACT THAT THE JURORS COME
FROM ALL CLASSES OF SOCIETY, THEY ARE BETTER CALCULATED TO JUDGE OF
MOTIVES, WEIGH PROBABILITIES, AND TAKE WHAT MAY BE CALLED A COMMON
SENSE VIEW OF A SET OF CIRCUMSTANCES, INVOLVING BOTH ACT AND INTENT,
THAN ANY SINGLE MAN, HOWEVER PURE, WISE AND EMINENT HE MAY BE.  THIS IS
THE THEORY OF THE LAW; AND AS APPLIED TO CRIMINAL ACCUSATIONS, IT IS
EMINENTLY WISE, AND FAVORABLE ALIKE TO LIBERTY AND TO JUSTICE."  PEOPLE
V. GARBUTT, 17 MICH. 9, 27. 

FN11  "JURIES UNDOUBTEDLY MAY MAKE MISTAKES:  THEY MAY COMMIT ERRORS:
THEY MAY COMMIT GROSS ONES.   BUT CHANGED AS THEY CONSTANTLY ARE,
THEIR ERRORS AND MISTAKES CAN NEVER GROW INTO A DANGEROUS SYSTEM.  THE
NATIVE UPRIGHTNESS OF THEIR SENTIMENTS WILL NOT BE BENT UNDER THE
WEIGHT OF PRECEDENT AND AUTHORITY.  THE ESPRIT DU CORPS WILL NOT BE
INTRODUCED AMONG THEM; NOR WILL SOCIETY EXPERIENCE FROM THEM THOSE
MISCHIEFS, OF WHICH THE ESPRIT DU CORPS, UNCHECKED, IS SOMETIMES
PRODUCTIVE."  II WILSON'S WORKS (ANDREWS ED. 1896) 222. 

FN12  AN OUTSTANDING INSTANCE IS THE DEAN OF ST. ASAPH'S CASE, 21
HOW.  ST. TR. 847, DISCUSSED IN STRYKER, FOR THE DEFENSE, 119-136. 

FN13  PENN AND MEAD'S CASE, 6 HOW.  ST. TR. 951.  AFTER TRIAL THE
JURORS WERE FINED FOR ACQUITTING PENN CONTRARY TO THE COURT'S
INSTRUCTIONS.  ONE WAS IMPRISONED FOR NOT PAYING THE FINE, BUT THE
COURT OF COMMON PLEAS RELEASED HIM IN A HABEAS CORPUS PROCEEDING,
UPHOLDING THE FREEDOM OF THE JURY TO DECIDE THE CASE.  BUSHELL'S CASE,
6 HOW.  ST. TR. 999. 

FN14  SEE II WILSON'S WORKS (ANDREWS ED. 1896) 222. 

FN15  BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS, SERIES P-25,
NO. 101 (U.S. DEPT. COMMERCE 1954). 

FN16  ARTS. 77-134, UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 133
143, 50 U.S.C. SECS.  671-728. 

FN17  A PARTICULARLY SWEEPING OFFENSE, PUNISHABLE BY DEATH AND NOT
SUBJECT TO ANY STATUTE OF LIMITATIONS, IS FOUND IN ARTICLE 94, WHICH
PROVIDES IN PART THAT ANYONE "(2) WHO WITH INTENT TO CAUSE THE
OVERTHROW OR DESTRUCTION OF LAWFUL CIVIL AUTHORITY, CREATES, IN CONCERT
WITH ANY OTHER PERSON OR PERSONS, REVOLT, VIOLENCE, OR OTHER
DISTURBANCE AGAINST SUCH AUTHORITY IS GUILTY OF SEDITION; (3) WHO FAILS
TO DO HIS UTMOST TO PREVENT AND SUPPRESS AN OFFENSE OF MUTINY OR
SEDITION BEING COMMITTED IN HIS PRESENCE, OR FAILS TO TAKE ALL
REASONABLE MEANS TO INFORM HIS SUPERIOR OR COMMANDING OFFICER OF ANY
OFFENSE OF MUTINY OR SEDITION WHICH HE KNOWS OR HAS REASON TO BELIEVE
IS TAKING PLACE, IS GUILTY OF A FAILURE TO SUPPRESS OR REPORT A MUTINY
OR SEDITION." 

FN18  SEE TABLE OF MAXIMUM PUNISHMENTS, 127C, MCM, 1951, 16 FED. REG.
1364-1368. 

FN19  HEARINGS BEFORE SUBCOMMITTEE OF SENATE COMMITTEE ON ARMED
SERVICES ON S. 857 AND H.R. 4080, 81ST CONG., 1ST SESS. 256-257.  THE
ASSISTANT GENERAL COUNSEL OF THE OFFICE OF SECRETARY OF DEFENSE, WHO
WAS CHAIRMAN OF A COMMITTEE THAT HELPED DRAFT THE UNIFORM CODE OF
MILITARY JUSTICE, EXPRESSED DOUBTS AS TO THE CONSTITUTIONALITY OF
ARTICLE 3(A).  HEARINGS BEFORE SUBCOMMITTEE OF HOUSE COMMITTEE ON ARMED
SERVICES ON H.R. 2498, 81ST CONG., 1ST SESS. 881. 

FN20  THE HISTORICAL BACKGROUND OF THIS COUNTRY'S PREFERENCE FOR
CIVILIAN OVER MILITARY TRIALS WAS IMPRESSIVELY PRESENTED IN THE
ARGUMENTS OF COUNSEL AND OPINION OF THIS COURT IN EX PARTE MILLIGAN, 4
WALL.  2, 121.  AND SEE DUNCAN V. KAHANAMOKU, 327 U.S. 304. 

FN21  3 MACAULAY, HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES THE
SECOND (LONDON, 1855), 45. 

FN22  MR. JUSTICE SUTHERLAND WRITING FOR THE COURT IN DIMICK V.
SCHIEDT, 293 U.S. 474, 485-486, SAID, "THE RIGHT OF TRIAL BY JURY IS OF
ANCIENT ORIGIN, CHARACTERIZED BY BLACKSTONE AS 'THE GLORY OF THE
ENGLISH LAW' AND 'THE MOST TRANSCENDENT PRIVILEGE WHICH ANY SUBJECT CAN
ENJOY' (BK. 3, P. 379); AND, AS JUSTICE STORY SAID (2 STORY ON THE
CONSTITUTION, SEC. 1779), '  ...  THE CONSTITUTION WOULD HAVE BEEN
JUSTLY OBNOXIOUS TO THE MOST CONCLUSIVE OBJECTION IF IT HAD NOT
RECOGNIZED AND CONFIRMED IT IN THE MOST SOLEMN TERMS.'  WITH, PERHAPS,
SOME EXCEPTIONS, TRIAL BY JURY HAS ALWAYS BEEN, AND STILL IS, GENERALLY
REGARDED AS THE NORMAL AND PREFERABLE MODE OF DISPOSING OF ISSUES OF
FACT IN CIVIL CASES AT LAW AS WELL AS IN CRIMINAL CASES.  MAINTENANCE
OF THE JURY AS A FACT-FINDING BODY IS OF SUCH IMPORTANCE AND OCCUPIES
SO FIRM A PLACE IN OUR HISTORY AND JURISPRUDENCE THAT ANY SEEMING
CURTAILMENT OF THE RIGHT TO A JURY TRIAL SHOULD BE SCRUTINIZED WITH THE
UTMOST CARE.  COMPARE PATTON V. UNITED STATES, 281 U.S. 276, 312." 

FN23  ANDERSON V. DUNN, 6 WHEAT.  204, 230-231. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

THIS CASE PRESENTS THE QUESTION WHETHER OR NOT AN HONORABLY
DISCHARGED EX-SERVICEMAN MAY BE APPREHENDED BY MILITARY AUTHORITIES TO
STAND TRIAL BY COURT-MARTIAL FOR A CRIME ALLEGED TO HAVE BEEN COMMITTED
BY HIM WHILE HE WAS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES. 
THE ANSWER TURNS UPON THE CONSTITUTIONALITY AND CONSTRUCTION OF THE
APPLICABLE PROVISIONS OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT.
108, 50 U.S.C.  SEC. 551 ET SEQ., UNDER WHICH THE UNITED STATES AIR
FORCE ACTED IN THIS CASE. 

WHENEVER AN ENACTMENT OF CONGRESS TO CURE WEAKNESSES IN CRIMINAL
PROCEDURE IS DECLARED UNCONSTITUTIONAL BY THIS COURT ON THE GROUND OF
LACK OF LEGISLATIVE POWER, THE DOOR IS CLOSED FOR ALL PRACTICAL
PURPOSES FOREVER ON THE METHOD THAT CONGRESS DEEMS EFFECTIVE FOR
CORRECTING CRIME.  ONLY AN OVERRULING OF THIS CASE CAN CHANGE TODAY'S
CONSTITUTIONAL DETERMINATION. 

THE JUDGMENT JUST ANNOUNCED TURNS LOOSE, WITHOUT TRIAL OR POSSIBILITY
OF TRIAL, A MAN ACCUSED OF MURDER.  IN FUTURE SIMILAR CASES AMONG THE
MILITARY, IF CONGRESS ENACTS THE SUBSTITUTE LAW AS THE COURT SUGGESTS,
ANTE, P. 21, THE ACCUSED MUST FACE A JURY FAR REMOVED FROM THE SCENE OF
THE ALLEGED CRIME AND BEFORE JURORS WITHOUT THE UNDERSTANDING OF THE
QUALITY AND CHARACTER OF A MILITARY CRIME POSSESSED BY THOSE ACCUSTOMED
TO ADMINISTER THE UNIFORM CODE OF MILITARY JUSTICE.  OR PERHAPS THOSE
ACCUSED WILL BE EXTRADITED AND TRIED BY FOREIGN LAW. 

A DISSENT IS JUSTIFIED, I THINK, IF ITS ARGUEMENT MAY LIMIT, IN SOME
DEGREE, FURTHER INTERPRETING LIMITATIONS BY THE JUDICIARY ON THE POWER
GRANTED BY THE CONSTITUTION TO CONGRESS:  "TO MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES" WITHOUT THE
JURY AND VENUE REQUIREMENTS OF THE FIFTH AND SIXTH AMENDMENTS.  THESE
REQUIREMENTS ARE APPROPRIATE FOR CIVIL TRIALS BUT, BY CUSTOM, OUR
PRECEDENTS AND EXPRESS LANGUAGE ARE INAPPLICABLE TO "CASES ARISING IN
THE LAND OR NAVAL FORCES." 

ROBERT W. TOTH, AFTER SERVICE IN THE UNITED STATES AIR FORCE, WAS
HONORABLY DISCHARGED ON DECEMBER 8, 1952.  ON APRIL 8, 1953, FORMAL
CHARGES WERE SIGNED UNDER THE PROCEDURES REQUIRED BY THE UNIFORM CODE
OF MILITARY JUSTICE CHARGING TOTH WITH PREMEDITATED MURDER AND
CONSPIRACY TO COMMIT MURDER.  (FN1)  THE SPECIFICATIONS UNDER THE
CHARGES ALLEGED THAT THE OFFENSES WERE COMMITTED BY TOTH WHILE AN
AIRMAN FIRST CLASS, UNITED STATES AIR FORCE, ON SEPTEMBER 27, 1952, AT
AN AIR BASE IN KOREA, AND THE VICTIM WAS A NAMED KOREAN NATIONAL.  IT
WAS FURTHER ALLEGED THAT TOTH WAS A CIVILIAN SUBJECT TO THE UNIFORM
CODE OF MILITARY JUSTICE UNDER ARTICLE 3(A) THEREOF WHICH PROVIDES: 

"SUBJECT TO THE PROVISIONS OF ARTICLE 43, ANY PERSON CHARGED WITH
HAVING COMMITTED, WHILE IN A STATUS IN WHICH HE WAS SUBJECT TO THIS
CODE, AN OFFENSE AGAINST THIS CODE, PUNISHABLE BY CONFINEMENT OF FIVE
YEARS OR MORE AND FOR WHICH THE PERSON CANNOT BE TRIED IN THE COURTS OF
THE UNITED STATES OR ANY STATE OR TERRITORY THEREOF OR OF THE DISTRICT
OF COLUMBIA, SHALL NOT BE RELIEVED FROM AMENABILITY TO TRIAL BY COURTS
MARTIAL BY REASON OF THE TERMINATION OF SAID STATUS."  64 STAT. 109, 50
U.S.C. SEC. 553(A).  (FN2) 

ON MAY 13, 1953, PURSUANT TO ORDERS ORIGINALLY ISSUED BY THE ACTING
SECRETARY OF THE AIR FORCE ON APRIL 30, 1953, AND FURTHER SUPPLEMENTAL
ORDERS THROUGH APPROPRIATE AIR FORCE COMMAND CHANNELS, TOTH WAS
APPREHENDED BY AIR FORCE POLICE AT HIS PLACE OF EMPLOYMENT IN
PITTSBURGH, PENNSYLVANIA.  ON MAY 15, 1953, HE WAS FLOWN TO KOREA WHERE
HE ARRIVED ON MAY 18, 1953. 

THIS WAS THE SITUATION WHEN THE PETITION FOR HABEAS CORPUS WAS FILED
BY THE RELATOR.  THE GOVERNMENT DID NOT QUESTION JURISDICTION IN THE
DISTRICT COURT AND AFTER ARGUMENT THAT COURT ORDERED THE WRIT TO
ISSUE.  (FN3)  TOTH WAS RETURNED TO THE UNITED STATES AND PRODUCED IN
COURT, WHEREUPON THE DISTRICT COURT ORDERED HIS DISCHARGE ON THE GROUND
THAT EVEN IF THE AIR FORCE POLICE HAD AUTHORITY TO APPREHEND TOTH, THEY
HAD NO LEGAL POWER TO TRANSPORT HIM TO A DISTANT POINT FOR TRIAL OR AT
LEAST TO DO SO WITHOUT A HEARING.  THE COURT THEREFORE FOUND IT
UNNECESSARY TO PASS ON THE CONSTITUTIONAL OBJECTIONS RAISED BY THE
PETITIONER AS TO THE INVALIDITY OF ARTICLE 3(A).  114 F. SUPP. 468. 
ON APPEAL, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
REVERSED THE DISTRICT COURT, DISCHARGED THE WRIT AND ORDERED TOTH
RETURNED TO THE MILITARY AUTHORITIES.  94 U.S. APP. D.C. 28, 215 F.2D
22.  THE COURT OF APPEALS HELD THAT ARTICLE 3(A) OF THE CODE WAS
CONSTITUTIONALLY VALID AND THAT THE CODE PROVIDED THE NECESSARY
AUTHORIZATION AND MACHINERY TO APPREHEND AND TRANSPORT FOR TRIAL, IN
THE MANNER HERE FOLLOWED, PERSONS IN CIVILIAN STATUS WHO WERE AMENABLE
TO COURTS-MARTIAL BY REASON OF THE PROVISIONS OF ARTICLE 3(A). 

THE CODE WAS ENACTED MAY 5, 1950, AFTER CAREFUL MILITARY AND
CONGRESSIONAL STUDY TO ASSURE THAT THE MILITARY JUSTICE OF THE UNIFIED
SERVICES WOULD BE IN ACCORDANCE WITH THE PRESENT-DAY STANDARDS OF
FAIRNESS.  (FN4)  ARTICLE 3(A) WAS ADOPTED IN VIEW OF THE DECISION OF
THIS COURT IN HIRSHBERG V. COOKE, 336 U.S. 210 (1949), HOLDING THE
ARTICLES FOR THE GOVERNMENT OF THE NAVY, THEN IN FORCE, DID NOT ALLOW
TRIAL ON CHARGES FILED SUBSEQUENT TO HONORABLE DISCHARGE "WITHOUT A
GRANT OF CONGRESIONAL AUTHORITY," ID., AT 215, ALTHOUGH THE CHARGES
AROSE FROM ACTS COMMITTED WHILE THE DEFENDANT WAS IN MILITARY SERVICE. 
THE NEAR ESCAPE FROM MILITARY JUSTICE OF ARMY PERSONNEL ACCUSED OF THE
THEFT IN GERMANY OF THE HESSE CROWN JEWELS WAS ALSO IN MIND.  (FN5)  IT
WAS THOUGHT THAT A SERVICEMAN'S DISCHARGE SHOULD NOT BAR HIS
PROSECUTION IN A MILITARY COURT FOR CRIMES COMMITTED WHEN SUBJECT TO
MILITARY DISCIPLINE.  (FN6) 

THE ENACTMENT OF ARTICLE 3(A) WAS CHOSEN INSTEAD OF THE ALTERNATIVE
OF FEDERAL DISTRICT COURT JURISDICTION, ALTHOUGH THOROUGH PRESENTATIONS
OF OBJECTIONS NOT ONLY ON CONSTITUTIONAL BUT ALSO ON POLICY GROUNDS
APPEAR IN THE COMMITTEE REPORT AND THE CONGRESSIONAL RECORD.  (FN7)
THE MILITARY WERE WELL AWARE, AS WAS CONGRESS, OF POSSIBLE UNFAVORABLE
PUBLIC REACTION TO EXTENSION OF THE JURISDICTION OF MILITARY COURTS TO
DISCHARGED VETERANS FOR ALLEGED MISDEEDS DURING SERVICE.  THE LANGUAGE
OF ARTICLE 3(A) WAS DRAWN TO COVER ONLY THE MOST SERIOUS OFFENSES AND
RESTRICTED TO THOSE INSTANCES IN WHICH THE GUILTY WOULD OTHERWISE
ESCAPE TRIAL OR PUNISHMENT IN ANY AMERICAN COURTS.  ALTHOUGH CONGRESS,
UNDER ART. I, SEC. 8, CL. 14, (FN8) AND THE NECESSARY AND PROPER
CLAUSE, DOUBTLESS MIGHT HAVE AUTHORIZED THE CIVIL COURTS TO TRY CHARGES
ARISING FROM VIOLATIONS OF THE MILITARY CODE DURING FORMER SERVICE,
EVEN THOUGH COMMITTED ON FOREIGN SOIL, (FN9) IT CHOSE THE METHOD OF
ARTICLE 3(A). 

NO QUESTIONS OF ACCOMMODATING THE LIBERTY OF THE CITIZEN TO
REQUIREMENTS OF THE MILITARY THROUGH THE INTERPRETATION OF AN AMBIGUOUS
ACT ARISES.  COMPARE EX PARTE ENDO, 323 U.S. 283, 300.  IT IS NOT FOR
COURTS TO QUESTION THE WISDOM OF THE LEGISLATION.  ITS OBVIOUS PURPOSE
WAS TO ASSURE, INSOFAR AS DISCIPLINE MAY DO SO, THE PROPER CONDUCT OF
OUR FAR-FLUNG AND NUMEROUS MILITARY PERSONNEL IN FOREIGN LANDS.  ONE
NEED NOT STRESS THE NECESSITY OF ORDERLY CONDUCT BY THE MILITARY ON
FOREIGN POSTS FOR THE MAINTENANCE OF GOOD RELATIONS IN FRIENDLY OR
VANQUISHED COUNTRIES.  IT ALSO SEEMS A REASONABLE CHOICE THAT UNIFORM
TREATMENT BY COURTS-MARTIAL TRIAL OF ALL ACCUSED OF CRIMES PUNISHABLE
BY THE MILITARY CODE IS PREFERRED FOR MORALE AND DISCIPLINARY PURPOSES
TO COURTS-MARTIAL TRIAL ONLY FOR THOSE WHO REMAIN IN THE SERVICE.  THIS
CASE ITSELF WOULD MAKE A GOOD EXAMPLE OF THE DIFFICULTY OF A FEDERAL
DISTRICT COURT TRIAL.  WE ADDRESS OURSELVES TO THE CONSTITUTIONALITY OF
ARTICLE 3(A). 

(A)  THE CONGRESSIONAL POWER UNDER ARTICLE I OF THE CONSTITUTION TO
REGULATE THE ARMED FORCES IS CONCEDED BY THE COURT TO EMBRACE THE POWER
TO PROVIDE FOR TRIAL BY COURT-MARTIAL AND MILITARY PUNISHMENT FOR
VIOLATIONS OF THE MILITARY CODE.  BUT THE COURT HOLDS THAT THAT POWER
CEASES WHEN THE SERVICEMAN BECOMES A CIVILIAN.  NOTHING, WE THINK, IN
THE WORDS OF ARTICLE I OR IN THE HISTORY OF THAT CONGRESSIONAL POWER
JUSTIFIES LIMITING TRIAL AND PUNISHMENT BY THE MILITARY, FOR CRIMES
COMMITTED BY MEMBERS OF THE ARMED SERVICES, TO THE PERIOD OF SERVICE. 
CERTAINLY THE POWER OF CONGRESS TO PROVIDE FOR A MILITARY TRIAL AND
PUNISHMENT FOR A BREACH OF THE MILITARY CODE ON CHARGES BROUGHT BEFORE
THE END OF ENLISTMENT OR DISCHARGE MAY CONTINUE THEREAFTER.  (FN10)
THE CRIME CHARGED AGAINST TOTH WAS ONE COVERED BY THE CODE.  THE
CIRCUMSTANCES THAT HE WAS DISCHARGED FROM THE SERVICE PRIOR TO THE
DETECTION OF THE ALLEGED CRIME AND PRIOR TO BEING CHARGED WITH ITS
COMMISSION SHOULD MAKE NO CONSTITUTIONAL DIFFERENCE. 

COURTS-MARTIAL ARE DEEPLY ROOTED IN HISTORY.  WAR IS A GRIM BUSINESS,
REQUIRING SACRIFICE OF EASE, OPPORTUNITY, FREEDOM FROM RESTRAINT, AND
LIBERTY OF ACTION.  EXPERIENCE HAS DEMONSTRATED THAT THE LAW OF THE
MILITARY MUST BE CAPABLE OF PROMPT PUNISHMENT TO MAINTAIN DISCIPLINE. 
THE POWER TO REGULATE THE ARMED FORCES MUST HAVE BEEN GRANTED TO
CONGRESS SO THAT IT WOULD HAVE THE AUTHORITY OVER ITS ARMED FORCES THAT
OTHER NATIONS HAVE LONG EXERCISED, SUBJECT ONLY TO LIMITATIONS OF THE
CONSTITUTION.  DYNES V. HOOVER, 20 HOW.  65, 78-79; EX PARTE REED, 100
U.S. 13, 21.  THE GOVERNMENT CALLS OUR ATTENTION TO THE CURRENT
PROVISIONS FOR MILITARY TRIAL AFTER DISCHARGE OF OTHER NATIONS WITH
LEGAL BACKGROUND SIMILAR TO OURS.  EACH OF THEM ALLOWS SUCH TRIALS
UNDER VARYING CONDITIONS.  (FN11)  WHETHER ENGLISH COURTS-MARTIAL
BEFORE 1789 EXERCISED JURISDICTION OVER CHARGES PREFERRED AFTER
SEPARATION FROM SERVICE CANNOT BE CATEGORICALLY ASSERTED IN VIEW OF THE
PAUCITY OF CASES.  IT WOULD SEEM, HOWEVER, THAT THE LANGUAGE OF ARTICLE
I ITSELF PROPERLY SHOULD BE INTERPRETED TO EMPOWER CONGRESS TO
AUTHORIZE COURTS-MARTIAL AFTER SEPARATION FROM THE SERVICES.  THE CRIME
CHARGED WAS COMMITTED DURING SERVICE AND VIOLATED THE MILITARY CODE. 
SURELY WHEN READ WITH THE NECESSARY AND PROPER CLAUSE, THE CONCLUSION
MUST FOLLOW.  ARTICLE 3(A) BEARS A REASONABLE RELATION TO THE
"GOVERNMENT AND REGULATION" OF THE ARMED FORCES; IT IS APPROPRIATE AND
PLAINLY ADAPTED TO THAT END.  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 419
ET SEQ. THAT HAS BEEN THE TEST OF CONGRESSIONAL POWER. 

THIS IS NOT AN EFFORT TO MAKE A CIVILIAN SUBJECT TO MILITARY LAW, IN
DISTINCTION TO MARTIAL LAW, AS IN EX PARTE MILLIGAN, 4 WALL.  2, 121,
123, 127.  SUCH AN EFFORT WOULD MEET CONDEMNATION AS AN INVASION OF THE
LIBERTY OF THE CITIZEN.  SEE DUNCAN V. KAHANAMOKU, 327 U.S. 304; EX
PARTE ENDO, 323 U.S. 283.  CONGRESS WAS GRANTED AUTHORITY TO REGULATE
THE ARMED FORCES IN ORDER TO ENFORCE OBEDIENCE BY MEMBERS OF THE
MILITARY ESTABLISHMENT TO MILITARY REGULATION DURING THEIR SERVICE TO
THE END THAT ORDER MAY BE ENSURED.  DISOBEDIENCE MAY OCCUR IN
NATIONALLY CRITICAL TIMES.  WHAT REASON CAN THERE BE FOR REFUSING
COURTS-MARTIAL JURISDICTION OVER CRIMES SO COMMITTED BY A SERVICEMAN
MERELY BECAUSE THEY PASSED UNDISCOVERED DURING THE SERVICE PERIOD? 
(FN12)  COULD THERE NOW BE DOUBT AS TO THE POWER OF CONGRESS UNDER ART.
I TO MAKE A DRAFTEE SUBJECT TO COURTS-MARTIAL BEFORE ACTUAL INDUCTION
INTO THE ARMED FORCES?  THIS COURT HAD NONE IN 1944.  THEN WE SAID,
WHEN CONSIDERING A HABEAS CORPUS FOR RELEASE FROM MILITARY IMPRISONMENT
AFTER TRIAL BY COURT-MARTIAL OF A PERSON CLAIMING CIVILIAN STATUS: 

"WE HAVE NO DOUBT OF THE POWER OF CONGRESS TO ENLIST THE MANPOWER OF
THE NATION FOR PROSECUTION OF THE WAR AND TO SUBJECT TO MILITARY
JURISDICTION THOSE WHO ARE UNWILLING, AS WELL AS THOSE WHO ARE EAGER,
TO COME TO THE DEFENSE OF THEIR NATION IN ITS HOUR OF PERIL.  ARVER V.
UNITED STATES, 245 U.S. 366 (SELECTIVE DRAFT LAW CASES)."  BILLINGS V.
TRUESDELL, 321 U.S. 542, 556. 

TOTH MAY BE A CIVILIAN BUT HIS CRIME WAS A VIOLATION OF MILITARY
REGULATIONS. 

JUDICIAL HISTORY LENDS ITS WEIGHT TO THE CONCLUSION THAT
CONGRESSIONAL POWER TO INSTITUTE CRIMINAL PROCEEDINGS AGAINST A
MILITARY PERSON CONTINUES AFTER THE ACCUSED'S DISCHARGE.  IN 1863, THE
CONGRESS ENACTED AN ACT TO PREVENT AND PUNISH FRAUDS UPON THE
GOVERNMENT OF THE UNITED STATES.  IT PROVIDED THAT ANY PERSON IN THE
MILITARY FORCES SHALL BE PUNISHED FOR FRAUD UNDER MILITARY REGULATION
"AS THE COURT-MARTIAL MAY ADJUDGE, SAVE THE PUNISHMENT OF DEATH."  12
STAT. 696-697, SEC. 1.  UNDER SEC. 2, JURISDICTION OF THE COURT-MARTIAL
WAS EXTENDED TO DISCHARGEES.  (FN13)  THE PROVISION FOR CHARGE AND
COURT-MARTIAL AFTER DISCHARGE WAS RULED CONSTITUTIONAL IN 1866 BY
ATTORNEY GENERAL STANBERRY.  (FN14)  THE SECTION WAS HELD
CONSTITUTIONAL IN 1873.  IN RE BOGART, 3 FED. CAS. 796.  SEE OTHER
CASES, NOTE 22, INFRA.  IT WAS APPARENTLY HELD UNCONSTITUTIONAL IN 1946
UNDER ARTICLE I IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, ALTHOUGH THE PROBLEM UNDER THE FIFTH AMENDMENT WAS ALSO
CONSIDERED.  UNITED STATES EX REL. FLANNERY V. COMMANDING GENERAL, 69
F. SUPP.  661, 664.  (FN15) 

IT IS ALSO TO BE NOTED THAT THE PRESENT UNIFORM CODE, ART. 4, 50
U.S.C. SEC. 554, PROVIDES THAT AN OFFICER DISMISSED BY THE PRESIDENT
MAY REQUEST TRIAL BY COURT-MARTIAL AFTER SUCH DISMISSAL.  A SIMILAR
PROVISION WAS FIRST ENACTED BY CONGRESS IN 1865, SEC. 12, 13 STAT. 487,
489; SEE WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED., REPRINT 1920),
64, 65. 

THE COURT FINDS A "COMPELLING REASON" FOR CONSTRUING THE CLAUSE FOR
ARMY REGULATION MORE NARROWLY THAN HAS BEEN DONE BY THE CONGRESS AND
THE EXECUTIVE FOR MANY YEARS.  THIS IS THAT TRIAL BY ARTICLE III JUDGES
AND JURIES OFFERS SAFEGUARDS TO MILITARY OFFENDERS SUPERIOR TO THOSE
OFFERED BY COURTS-MARTIAL.  UNDER OUR JUDICIAL SYSTEM THE USE OF JURIES
HAS BEEN FOUND SATISFACTORY IN CIVIL LIFE.  THE ARGUMENT FOR THE
ADOPTION OF CIVIL TRIALS FOR THE MILITARY MIGHT APPEAL TO CONGRESS, IF
PRESENTED THERE.  BUT, WITH DUE RESPECT TO THE PREMISE OF THE MAJORITY,
THE ASSUMED SUPERIORITY OF THE CIVIL COURTS IN THE TRIAL OF SERVICE
CRIMES SHOULD HAVE NO FORCE IN THE CONSTRUCTION OF THE CONSTITUTIONAL
POWER OF CONGRESS TO ENACT ARTICLE 3(A) OF THE CODE.  BELIEF THAT AN
ACCUSED HAS BETTER OPPORTUNITIES TO ESCAPE CONVICTION IN A CIVIL COURT
SHOULD NOT INFLUENCE A CONCLUSION AS TO CONSTITUTIONAL POWER.  AS LATER
APPEARS IN THIS OPINION, THE FIFTH AND SIXTH AMENDMENTS EXCEPT THE LAND
AND NAVAL FORCES FROM THEIR COMMANDS.  THE ADVANTAGES AND DISADVANTAGES
OF INDICTMENT, VENUE AND JURY TRIAL FOR THE MILITARY HAVE BEEN WEIGHED
AND DETERMINED ADVERSELY TO THE COURT'S CONCLUSION BY THE CONSTITUTION
AND THE CONGRESS.  CERTAINLY THE NUMBER OF FORMER MEMBERS OF THE ARMED
SERVICES NOW LIVING IS IMMATERIAL TO THE CONSTITUTIONAL ISSUE, AS ARE
THE "DANGERS" SUGGESTED TO BE "LURKING IN MILITARY TRIALS."  THE
MILITARY IS IN POSITION TO GIVE ITS PERSONNEL A FAIR TRIAL.  THE ONLY
LOGICAL GROUND FOR DECLARING ARTICLE 3(A) UNCONSTITUTIONAL IS THAT
MILITARY CRIMES CANNOT BE SO PUNISHED BECAUSE SUCH PROCEDURE IS BEYOND
THE REACH OF THE CONGRESSIONAL AUTHORITY TO MAKE RULES FOR GOVERNMENT
OF MILITARY PERSONNEL.  SUBSEQUENT PUNISHMENT BY MILITARY PROCEDURES
WILL HELP DISCIPLINE DURING SERVICE.  SUCH A CONCLUSION BY CONGRESS IS
NOT STRAINED OR UNREASONABLE BUT A NATURAL USE OF ITS POWER TO MAKE
REGULATIONS FOR THE ARMED SERVICES.  THE CHOICE IS FOR CONGRESS, NOT
THE COURT. 

(B)  ANOTHER CONSTITUTIONAL PROBLEM ARISES, I.E., THAT ARTICLE 3(A)
IS UNLAWFUL BY REASON OF THE LIMITATIONS ON PROSECUTIONS OF THE FIFTH
AND SIXTH AMENDMENTS TO THE CONSTITUTION.  (FN16) 

THE ARGUMENT UPON THE SIXTH AMENDMENT REQUIRES ONLY SUMMARY
TREATMENT.  THE RIGHTS TO A SPEEDY AND PUBLIC TRIAL, IMPARTIALITY OF
THE TRIERS, INFORMATION AS TO THE CHARGE, CONFRONTATION, COMPULSORY
PROCESS FOR WITNESSES AND ASSISTANCE OF COUNSEL ARE NOT IN ISSUE.  THIS
ACCUSED WILL NOT HAVE FOR HIS TRIAL A JURY OF THE STATE AND DISTRICT OF
THE CRIME, PREVIOUSLY ASCERTAINED BY OUR LAW.  THAT IS AN IMPOSSIBILITY
IN THE CIRCUMSTANCES OF THIS CASE.  NOR CAN IT BE THAT THE SIXTH
AMENDMENT REQUIREMENTS AS TO JURY AND PLACE WERE INTENDED TO APPLY TO
THE "CASES ARISING IN THE LAND OR NAVAL FORCES" WHICH WERE EXCEPTED
FROM THE PROTECTION OF THE GRAND JURY BY THE FIFTH.  THAT WOULD
ABROGATE THE AUTHORITY OF CONGRESS TO GOVERN THE MILITARY BY COURTS
MARTIAL.  IT WAS SO ANNOUNCED BY THIS COURT, UNANIMOUSLY, IN EX PARTE
MILLIGAN, 4 WALL.  2, 122.  (FN17)  DEFENDANTS IN CASES ARISING IN THE
ARMED FORCES, WE THINK, ARE NOT ENTITLED TO DEMAND TRIAL BY JURY,
WHETHER THE CRIME WAS COMMITTED ON FOREIGN SOIL OR AT A PLACE WITHIN A
STATE OR PREVIOUSLY ASCERTAINED DISTRICT. 

TURNING TO THE FIFTH AMENDMENT, THE CRITICAL WORDS ARE OBVIOUSLY
"CASES ARISING IN THE LAND OR NAVAL FORCES."  THE EVENTS LEADING TO THE
TAKING OF TOTH INTO CUSTODY OCCURRED WHILE HE WAS ENLISTED.  THEY
CONSTITUTED THEN AND NOW A VIOLATION OF THE UNIFORM CODE.  RELATOR
WOULD LIMIT THE QUOTED WORDS TO CASES WHERE CHARGES HAD BEEN FILED
DURING SERVICE.  SHE STRESSES THE PHRASE "WHEN IN ACTUAL SERVICE," BUT
THIS COURT HAD HELD AND ALL THE HISTORY OF OUR COURTS-MARTIAL SHOWS
THAT SUCH PHRASE HAS REFERENCE ONLY TO "CASES ARISING  ...  IN THE
MILITIA."  JOHNSON V. SAYRE, 158 U.S. 109, 114. 

THE FIFTH, LIKE THE OTHER EARLY AMENDMENTS, AROSE FROM THE
DETERMINATION TO PROTECT THE RIGHTS OF CITIZENS.  AS THE ARTICLES OF
CONFEDERATION, ARTICLE 9, GRANTED AUTHORITY TO THE CENTRAL GOVERNMENT
TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE ARMED FORCES,
THE NATION WAS CONVERSANT WITH THE PROBLEM.  IN THE STATE CONVENTIONS
FOR RATIFICATION OF THE CONSTITUTION, MASSACHUSETTS, NEW HAMPSHIRE, NEW
YORK AND RHODE ISLAND SUGGESTED WORDS FOR REGULATIONS OF THE ARMED
FORCES QUITE SIMILAR TO THE ONES ADOPTED BY CONGRESS.  (FN18)  IT WILL
BE OBSERVED THAT TWO EMPLOY "ARISE."  THREE SPEAK OF "CASES."  SINCE
THE STATE SUGGESTIONS WERE MADE AS THE RESULT OF CONSIDERATION OF THE
PROPOSED CONSTITUTION, IT IS QUITE NATURAL THAT THE LANGUAGE OF ARTICLE
III CONCERNING THE JUDICIAL POWER WOULD FIND AN ECHO IN THE
SUGGESTIONS.  ARTICLE III, SEC. 2, READS, "THE JUDICIAL POWER SHALL
EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER THIS
CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES MADE, OR
WHICH SHALL BE MADE, UNDER THEIR AUTHORITY  ...  ."  WHEN THE CONGRESS
CONSIDERED THE ACT AGAINST MILITARY FRAUD IN 1863, NOTE 13, SUPRA, NO
ONE SUGGESTED THAT A "CASE," THE PROSECUTION FOR WHICH UNDER THE ACT
DID NOT BEGIN UNTIL AFTER DISCHARGE OF A SERVICEMAN, WOULD NOT BE A
"CASE ARISING IN THE LAND OR NAVAL FORCES."  THE CONCERN OF CONGRESS
WAS WITH THE LIABILITY OF CONTRACTORS, AS PART OF MILITARY PERSONNEL,
UNDER SEC. 1 OF THE ACT, WHEN THEY HAD NO TRUE MILITARY SERVICE
STATUS.  (FN19)  BECAUSE NOT SERVICE-CONNECTED, THE CONTRACTORS' CLAUSE
HAS BEEN HELD UNCONSTITUTIONAL.  EX PARTE HENDERSON, 11 FED. CAS. 1067,
1071. 

THE WORD "CASE," OF COURSE, MIGHT REFER TO LITIGATION - A CHARGE OR
COMPLAINT BROUGHT IN COURT, HERE A PROSECUTION.  BUT IT SEEMS TO US
THAT ITS MEANING, AS USED IN THE CONSTITUTIONAL CLAUSES UNDER
CONSIDERATION, IS A STATE OF FACTS FOR JUDICIAL ACTION, I.E., THE
SERIES OF EVENTS THAT CREATES AN ENFORCEABLE RIGHT OR OBLIGATION.  THE
CONTEXT IN WHICH IT IS USED BEARS ON THE FINAL DEFINITION.  HERE "CASES
ARISING" IS MORE SPECIFIC THAN THE WORD "CASE" ALONE.  THE GOVERNMENT
GIVES US SEVERAL CITATIONS TO CASES APPLYING THE MEANING FOR WHICH IT
CONTENDS.  (FN20)  RELATOR DOES THE SAME.  (FN21)  ARTICLE III USES
"CASES ARISING" UNDER FEDERAL LAW TO INDICATE THE EXTENT OF POSSIBLE
FEDERAL JURISDICTION OVER LEGAL RIGHTS OR DUTIES CREATED BY THE LAWS OF
THE UNITED STATES.  THE MEANING OF "CASES ARISING" IN ARTICLE III AND
THE FIFTH AMENDMENT MUST BE DETERMINED BY THEIR PURPOSE.  THAT PURPOSE
IS SIMILAR - TO MARK THE SOURCE OF THE CAUSE OF ACTION THAT RIPENS INTO
A CIVIL COMPLAINT OR CRIMINAL CHARGE.  HOWEVER RESTRICTED THE WORD
"CASE" MAY BE, ITS USE WITH "ARISING" POINTS TO THE SOURCE OF THE
LITIGATION.  IF A CASE IS CLAIMED TO EXIST ONLY AFTER INSTITUTION OF
LEGAL PROCEEDINGS, NEVERTHELESS THAT CASE HAS ITS ROOTS, IT ARISES, IN
THE EVENTS THAT GIVE LIFE TO THE CAUSE OF ACTION.  WHEN A CASE SO
ARISES WAS STATED THUS IN GULLY V. FIRST NAT. BANK, 299 U.S. 109, 112,
IN AN OPINION CONCERNING THE REMOVAL STATUTE, WHERE REMOVAL WAS ASKED
BECAUSE THE STATE SUIT WAS ALLEGED TO HAVE ARISEN UNDER FEDERAL LAW: 

"TO BRING A CASE WITHIN THE STATUTE, A RIGHT OR IMMUNITY CREATED BY
THE CONSTITUTION OR LAWS OF THE UNITED STATES MUST BE AN ELEMENT, AND
AN ESSENTIAL ONE, OF THE PLAINTIFF'S CAUSE OF ACTION  ... .  THE RIGHT
OR IMMUNITY MUST BE SUCH THAT IT WILL BE SUPPORTED IF THE CONSTITUTION
OR LAWS OF THE UNITED STATES ARE GIVEN ONE CONSTRUCTION OR EFFECT, AND
DEFEATED IF THEY RECEIVE ANOTHER  ...  ." 

ONE OF THE PURPOSES OF THE FIFTH AMENDMENT BY THIS EXCEPTION WAS TO
PRESERVE THE SEPARATION OF MILITARY LAW FROM THE REQUIREMENTS OF CIVIL
LAW.  THE REGULATION OF THE ARMED FORCES BY CONGRESS UNDER CL. 14 OF
SEC. 8, ART. I, WAS TO BE LEFT FOR LEGISLATIVE JUDGMENT THAT DISCIPLINE
MIGHT BE MAINTAINED BY SPEEDY TRIAL AND PUNISHMENT IN ACCORDANCE WITH
MILITARY LAW.  THE REASONS, SET OUT IN OUR DISCUSSION OF ARTICLE I
POWER TO REGULATE THE ARMED FORCES, NEED NOT BE REPEATED HERE.  WE ASK
OURSELVES, "WHAT LAW IS THE BASIS OF THIS PROSECUTION?"  THE ANSWER IS
THE MILITARY CODE.  IF SO, THE CASE ARISES "IN THE LAND OR NAVAL
FORCES." 

THAT CONCLUSION HAS THE SUPPORT OF THE WEIGHT OF THE PRECEDENTS
DEALING WITH THIS PHASE OF THE FIFTH AMENDMENT.  TO MEET THE ARGUMENT
OF DEFENDANT THAT JURISDICTION MUST ATTACH BEFORE DISCHARGE, IT WAS
SAID IN THE BOGART CASE, 3 FED. CAS. 796, 799: 

"AMONG THE ORDINARY AND MOST COMMON DEFINITIONS OF THE WORD 'ARISE,'
ARE 'TO PROCEED, TO ISSUE, TO SPRING,' AND A CASE ARISING IN THE LAND
OR NAVAL FORCES UPON A FAIR AND REASONABLE CONSTRUCTION OF THE WHOLE
ARTICLE, APPEARS TO US TO BE A CASE PROCEEDING, ISSUING OR SPRINGING
FROM ACTS IN VIOLATION OF THE NAVAL LAWS AND REGULATIONS COMMITTED
WHILE IN THE NAVAL FORCES OR SERVICE." 

THIS STATEMENT HAS BEEN STRENGTHENED BY THE ACCORD GIVEN THE ARGUMENT
BY OTHER COURTS.  (FN22) 

(C)  THE COURT, OF COURSE, DOES NOT GAINSAY THE CONSTITUTIONAL
AUTHORITY OF CONGRESS TO ADOPT A MILITARY CODE FOR REGULATION OF
MEMBERS OF THE ARMED FORCES WITHOUT REGARD TO THE GENERALLY APPLICABLE
REQUIREMENTS OF THE FIFTH AND SIXTH AMENDMENTS.  IT HOLDS THAT WHERE
THE CONSTITUTIONAL SAFEGUARDS OF THE FIFTH AND SIXTH AMENDMENTS FOR A
CITIZEN'S FREEDOM FROM TYRANNY ARE AT STAKE, THEY SHOULD NOT BE
WITHDRAWN EXCEPT THROUGH ABSOLUTE NECESSITY.  THERE IS NO SUCH
NECESSITY HERE FOR IT WOULD HAVE BEEN POSSIBLE TO HAVE PROVIDED A
PROPER CIVIL TRIAL WITH THE FULL PROTECTION OF THE APPLICABLE CLAUSES
OF THE AMENDMENTS.  BUT HERE WE ARE CONSIDERING AN EXCEPTION TO THE
SAFEGUARDS OFFERED BY THE FIFTH AND SIXTH AMENDMENTS.  THAT EXCEPTION
HAS BEEN WRITTEN INTO THE CONSTITUTION FROM THE EXPERIENCE OF HISTORY
TO PROTECT THE DISCIPLINE OF THE ARMED FORCES.  OF COURSE, THAT
EXCEPTION FROM THE PROTECTIONS OF THESE AMENDMENTS SHOULD BE STRICTLY
CONSTRUED TO HOLD THOSE EXCLUDED TO THE MINIMUM AS WAS DONE IN EX PARTE
HENDERSON, SUPRA, P. 39.  CONSTRUCTION OF THE CONSTITUTION, HOWEVER,
SHOULD NOT BE ALLOWED TO EMASCULATE THE NATURAL MEANING OF LANGUAGE
DESIGNED TO PROTECT THE NATION IN THE REGULATION OF ITS ARMED FORCES. 

WHAT WE HAVE ARGUED IN THE FOREGOING PAGES OF THIS OPINION SUPPORTS
OUR CONCLUSION ON THIS TENDERED RULE OF CONSTRUCTION.  GRANTING THAT
THERE ARE POSSIBLE MEANS OF AFFORDING CIVIL TRIALS TO PERSONS
DISCHARGED FROM THE ARMY FOR MILITARY CRIMES COMMITTED DURING THEIR
SERVICE, WE THINK THAT CONGRESS HAS POWER TO PROVIDE FOR PUNISHMENT OF
THESE MILITARY CRIMES UNDER THE CONSTITUTIONAL EXCEPTIONS DISCUSSED. 
SUCH PUNISHMENT, IF OUR ANALYSIS OF ARTICLE I AND THE FIFTH AND SIXTH
AMENDMENTS IS CORRECT, WILL BE FOR MILITARY CRIMES OF SERVICEMEN, NOT
OF CIVILIANS, AND FOR THE MAINTENANCE OF DISCIPLINE IN THE ARMED
FORCES. 

THE RELATOR PHRASES STRONGLY HER ARGUMENT AGAINST TOTH'S PROSECUTION
BY COURTS-MARTIAL.  TO HER THE ISSUE IS "MILITARY DICTATORSHIP." 
THOUGH SHE CONCEDES THAT CONGRESS MAY HAVE MERELY DESIRED TO BAR
ABSOLUTION FROM CRIME BY DISCHARGE FROM SERVICE, SUCH PURPOSE, SHE
ARGUES, SHOULD NOT OVERRIDE THE CONSTITUTION OR BE ALLOWED TO
FORESHADOW A "MILITARY DICTATORSHIP."  SHE FOREBODES THAT EVERY PETTY
CRIME MAY BE INCLUDED AND LIMITATION OF PROSECUTION BE EXTENDED UNTIL
ALL DISCHARGED SERVICEMEN SHALL LIVE THEIR LIVES UNDER FEAR OF THE
MILITARY.  THE LAW STILL HAS DEGREES OF HARSHNESS AND COURTS AND
LEGISLATURES MUST ACT IN REASON.  THE POSSIBILITY OF INDIVIDUAL ABUSE
OF POWER IS EVER PRESENT EVEN UNDER OUR CONSTITUTION BUT THE
PROBABILITY OF OBLITERATION OF ANY SUCH TENDENCY THROUGH JUDICIAL,
EXECUTIVE OR LEGISLATIVE ACTION IS THE CITIZEN'S PROTECTION UNDER THE
CONSTITUTION.  A FEAR THAT PUNISHMENT BY COURTS-MARTIAL OF SERVICEMEN
AFTER DISCHARGE MAY BEAR A THREAT TO THE RIGHTS AND SECURITY OF
CITIZENS IS EXTRAVAGANT.  IT IS TRUE TODAY, AS IT WAS IN THE TIME OF
THE FOUNDING FATHERS, THAT THE METHODS FOR MAINTENANCE OF ARMY
DISCIPLINE SHOULD BE SUBJECT TO PUBLIC OPINION AS EXPRESSED THROUGH
CONGRESS.  IF TRIAL OF DISCHARGED SERVICEMEN BY COURTS-MARTIAL UNDER
THE CAREFULLY DEFINED PROVISIONS OF ARTICLE 3(A) SEEMS HARSH OR HURTFUL
TO LIBERTY, THE DOOR OF CONGRESS REMAINS OPEN FOR AMELIORATION.  THIS
DECISION THAT A VETERAN, LET OUT OF THE MILITARY FORCES BEFORE CHARGES,
MUST, BY THE CONSTITUTION, BE TRIED BY THE CIVIL COURTS FOR HIS
MILITARY CRIMES IMPAIRS CONGRESSIONAL POWER.  NOW ONLY ANOTHER
CONSTITUTIONAL AMENDMENT OR A REVERSAL OF TODAY'S JUDGMENT WILL ENABLE
CONGRESS TO DEAL CONSISTENTLY WITH THOSE VIOLATING THE UNIFORM CODE OF
MILITARY JUSTICE.  WE CANNOT AGREE THAT THOSE WHO ADOPTED THE
CONSTITUTIONAL PROVISIONS FOR THE PROTECTION OF MILITARY DISCIPLINE
INTENDED SUCH A RESULT.  TOTH'S ALLEGED ACCOMPLICES HAVE BEEN CONVICTED
BY MILITARY COURTS AND WE SEE NO REASON WHY HE SHOULD NOT BE TRIED AS
PROPOSED. 

THE DECISION BELOW SHOULD BE AFFIRMED. 

FN1  THE CHARGES WERE VIOLATIONS OF ARTICLES 118 AND 81 RESPECTIVELY
OF THE UNIFORM CODE OF MILITARY JUSTICE, 50 U.S.C. SECS. 712, 675. 

FN2  ARTICLE 43 IS THE STATUTE OF LIMITATIONS APPLICABLE TO OFFENSES
PUNISHABLE UNDER THE CODE, 50 U.S.C. SEC. 618. 

FN3  113 F. SUPP. 330. 

FN4  S. REP. NO. 486, 81ST CONG., 1ST SESS., P. 3; H.R. REP. NO. 491,
81ST CONG., 1ST SESS., P. 2. 

FN5  HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON ARMED
SERVICES ON H.R. 2498, 81ST CONG., 1ST SESS., PP. 879-885.  SEE DURANT
V. HIATT, 81 F. SUPP. 948. 

FN6  BOTH THE HOUSE AND SENATE COMMITTEE REPORTS STATED THAT THE NEED
FOR ARTICLE 3(A) WAS TO REMEDY THE UNDESIRABLE SITUATION POINTED OUT BY
THE HIRSHBERG DECISION.  BOTH REPORTS CONTAIN THE FOLLOWING SENTENCE:
"IN THE OPINION OF THE COMMITTEE, THE PRESENT PROVISIONS (ARTICLE 3(A))
OF THIS SUBDIVISION PROVIDE A DESIRABLE DEGREE OF CONTINUING
JURISDICTION AND AT THE SAME TIME PLACE SUFFICIENT LIMITATIONS ON THE
CONTINUING JURISDICTION TO PREVENT CAPRICIOUS ACTIONS ON THE PART OF
MILITARY AUTHORITIES."  H.R.  REP. NO. 491, 81ST CONG., 1ST SESS. 11;
S. REP. NO. 486, 81ST CONG., 1ST SESS. 8.  THE SAME VIEW WAS EXPRESSED
BY THE MANAGERS OF THE BILL IN THE HOUSE AND SENATE.  REPRESENTATIVE
BROOKS AT 95 CONG. REC. 5721 AND SENATOR KEFAUVER AT 96 CONG. REC.
1358.  VIEWS AGAINST THE ADOPTION OF ARTICLE 3(A) WERE URGED IN
COMMITTEE AND ON THE FLOOR BUT DID NOT PREVAIL.  HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON ARMED SERVICES ON S. 857 AND
H.R. 4080, 81ST CONG., 1ST SESS. 256-257; 96 CONG. REC. 1294, 1366,
1412-1417. 

FN7  96 CONG. REC. 1294 ET SEQ. THE PROPOSED SUBSTITUTE FOR ARTICLE
3(A) WAS: "SUBJECT TO THE PROVISIONS OF ARTICLE 43, JURISDICTION IS
HEREBY CONFERRED UPON THE SEVERAL DISTRICT COURTS OF THE UNITED STATES
TO TRY AND PUNISH ACCORDING TO THE APPLICABLE PROVISIONS AND
LIMITATIONS OF THIS CODE AND THE REGULATIONS MADE THEREUNDER: 

"(1)  ANY PERSON CHARGED WITH HAVING COMMITTED AN OFFENSE AGAINST
THIS CODE WHILE IN A STATUS IN WHICH HE WAS SUBJECT TO THIS CODE WHICH
STATUS HAS BEEN TERMINATED; ...  ." 

FN8  "TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND
NAVAL FORCES; ...  ." 

FN9  "THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL
BE BY JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID
CRIMES SHALL HAVE BEEN COMMITTED; BUT WHEN NOT COMMITTED WITHIN ANY
STATE, THE TRIAL SHALL BE AT SUCH PLACE OR PLACES AS THE CONGRESS MAY
BY LAW HAVE DIRECTED."  ART. III, SEC. 2, CL. 3. 

SKIRIOTES V. FLORIDA, 313 U.S. 69, 73, AND CASES CITED; CHANDLER V.
UNITED STATES, 171 F.2D 921. 

FN10  CARTER V. MCCLAUGHRY, 183 U.S. 365, 382; MOSHER V. HUNTER, 143
F.2D 745.  CF. KAHN V. ANDERSON, 255 U.S. 1, 7; WALKER V. MORRIS, 3
AMERICAN JURIST AND LAW MAGAZINE 281. 

FN11  SECTION 158 OF THE BRITISH ARMY ACT (GT. BRIT., STATS. REV., 3D
ED., VOL. X, 457, 563-564; WAR OFFICE, MANUAL OF MILITARY LAW, PT. I,
1951, 376-377) PROVIDES: 

"(I)  WHERE AN OFFENCE UNDER THIS ACT HAS BEEN COMMITTED BY ANY
PERSON WHILE SUBJECT TO MILITARY LAW, SUCH PERSON MAY BE TAKEN INTO AND
KEPT IN MILITARY CUSTODY, AND TRIED AND PUNISHED FOR SUCH OFFENCE,
ALTHOUGH HE, OR THE CORPS OR BATTALIONS TO WHICH HE BELONGS, HAS CEASED
TO BE SUBJECT TO MILITARY LAW IN LIKE MANNER AS HE MIGHT HAVE BEEN
TAKEN INTO AND KEPT IN MILITARY CUSTODY, TRIED OR PUNISHED, IF HE OR
SUCH CORPS OR BATTALION HAD CONTINUED SO SUBJECT: 

"PROVIDED THAT WHERE A PERSON HAS SINCE THE COMMISSION OF AN OFFENCE
CEASED TO BE SUBJECT TO MILITARY LAW, HE SHALL NOT BE TRIED FOR SUCH
OFFENCE, EXCEPT IN THE CASE OF THE OFFENCE OF MUTINY, DESERTION, OR
FRAUDULENT ENLISTMENT, UNLESS HIS TRIAL COMMENCES WITHIN THREE MONTHS
AFTER HE HAD CEASED TO BE SUBJECT TO MILITARY LAW, OR UNLESS THE
OFFENCE WAS COMMITTED OUTSIDE THE UNITED KINGDOM AND IS AN OFFENCE
WHICH WHEN COMMITTED IN ENGLAND IS PUNISHABLE BY THE LAW OF ENGLAND,
AND THE ATTORNEY-GENERAL CONSENTS TO THE TRIAL  ...  ." 

THE BRITISH ARMY ACT, INCLUDING THE PROVISION IN SEC. 158 FOR COURT
MARTIAL AFTER TERMINATION OF MILITARY SERVICE, DATES FROM 1881.  17 LAW
REPORTS (STATUTES) 44 AND 45 VICT.  260, 331. 

SEE ALSO THE DEFENCE ACT OF AUSTRALIA, SEC. 103(3), COMMONWEALTH
ACTS, VOL. II (1901-1950), 1560, 1596; NATIONAL DEFENCE ACT OF CANADA,
1950, SECS. 56(2) AND (3), AND 68(F), REVISED STATUTES OF CANADA, 1952,
VOL. III, 3814 AND 3821.  NEW ZEALAND HAS A SIMILAR STATUTE (ARMY ACT,
SEC. 127(1), NEW ZEALAND STATUTES, 1950, 283, 370-371). 

AT THE TIME OF OUR CONSTITUTIONAL CONVENTION, THERE HAD ALREADY BEEN
HELD THE WELL-KNOWN COURT-MARTIAL OF LORD GEORGE SACKVILLE FOR
DISOBEDIENCE OF ORDERS OF HIS CHIEF, PRINCE FERDINAND OF BRUNSWICK, AT
THE BATTLE OF MINDEN.  THE TRIAL TOOK PLACE AFTER HIS DISMISSAL FROM
HIS COMMAND AND THE SERVICE.  THE KING, GEORGE II, SUBMITTED THE
QUESTION OF JURISDICTION OF THE COURT-MARTIAL TO THE TWELVE JUDGES
COMPOSING THE COURTS OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER,
HEADED BY LORD MANSFIELD, AND RECEIVED THE FOLLOWING ADVISORY ANSWER: 

"IN OBEDIENCE TO YOUR MAJESTY'S COMMANDS, SIGNIFIED TO US BY A LETTER
...  , REFERRING TO US THE FOLLOWING QUESTION, 'WHETHER AN OFFICER OF
THE ARMY HAVING BEEN DISMISSED FROM HIS MAJESTY'S SERVICE, AND HAVING
NO MILITARY EMPLOYMENT, IS TRIABLE BY A COURT MARTIAL FOR A MILITARY
OFFENCE LATELY COMMITTED BY HIM WHILE IN ACTUAL SERVICE AND PAY AS AN
OFFICER?' 

"WE HAVE TAKEN THE SAME INTO CONSIDERATION, AND SEE NO GROUND TO
DOUBT OF THE LEGALITY OF THE JURISDICTION OF A COURT MARTIAL IN THE
CASE PUT BY THE ABOVE QUESTION."    THE JUDGES ENDED WITH A RESERVATION
OF THE PRIVILEGE OF CHANGING THEIR MINDS IF THE MATTER WERE JUDICIALLY
PRESENTED, APPARENTLY IN ACCORDANCE WITH THE PRACTICE IN SUCH ADVISORY
OPINIONS.  SEE NOTE, 28 ENG. REP. 941.  II EDEN'S CHANCERY REPORTS,
APP., P. 371.  SEE TRIALS, COURTS MARTIAL - SACKVILLE, 1760.  ON
CONVICTION THE KING DIRECTED THE SENTENCE BE RECORDED IN THE ORDER BOOK
OF EVERY REGIMENT, BRITISH AND AMERICAN.  IN VIEW OF THE PROMINENCE OF
THE PARTIES AND THE SUBSEQUENT DISTINGUISHED CAREER OF LORD GEORGE
SACKVILLE, WHO DIED IN 1785 AFTER HAVING BEEN ADVANCED IN 1782 TO THE
PEERAGE AS VISCOUNT SACKVILLE FOR HIS SERVICES IN PARLIAMENT, THE IRISH
ADMINISTRATION, AND AS SECRETARY OF STATE FOR THE COLONIES, THE CASE
COULD HARDLY HAVE ESCAPED THE NOTICE OF THE MEMBERS OF THE
CONSTITUTIONAL CONVENTION.  SEE VII DICTIONARY OF NAT. BIOGRAPHY 1110;
4 SMOLLETT, HISTORY OF ENGLAND, 337; TYTLER, MILITARY LAW (2D ED.),
113.  8 OP. ATTY. GEN. 328.  BUT SEE, 31 OP. ATTY. GEN. 521; CLODE,
MARTIAL AND MILITARY LAW, 92. 

FN12  IT MUST BE NOTED, HOWEVER, THAT A LEADING MILITARY AUTHORITY IS
AGAINST THAT VIEW.  SEE WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED.,
REPRINT 1920), 105, ALTHOUGH HE ADMITS THE WEIGHT OF THE PRECEDENTS IS
AGAINST HIM. 

SEE, HOWEVER, A COMPARABLE AUTHORITY, EDMUND M. MORGAN, COURT-MARTIAL
JURISDICTION, 4 MINN. LAW REV. 79, 83 (1920).  FOR FURTHER DISCUSSION
OF THE PROBLEM, SEE MYERS AND KAPLAN, CRIME WITHOUT PUNISHMENT, 35 GEO.
L.J. 303 (1947); NOTE, MILITARY JURISDICTION OVER DISCHARGED
SERVICEMEN: CONSTITUTIONALITY AND JUDICIAL PROTECTION, 67 HARV. L. REV.
479 (1954); NOTE, THE AMENABILITY OF THE VETERAN TO MILITARY LAW, 46
COL. L. REV. 977 (1946). 

FN13  "THAT ANY PERSON HERETOFORE CALLED OR HEREAFTER TO BE CALLED
INTO OR EMPLOYED IN SUCH FORCES OR SERVICE, WHO SHALL COMMIT ANY
VIOLATION OF THIS ACT AND SHALL AFTERWARDS RECEIVE HIS DISCHARGE, OR BE
DISMISSED FROM THE SERVICE, SHALL, NOTWITHSTANDING SUCH DISCHARGE OR
DISMISSAL, CONTINUE TO BE LIABLE TO BE ARRESTED AND HELD FOR TRIAL AND
SENTENCE BY A COURT-MARTIAL, IN THE SAME MANNER AND TO THE SAME EXTENT
AS IF HE HAD NOT RECEIVED SUCH DISCHARGE OR BEEN DISMISSED." 

THIS WAS CARRIED INTO THE ARTICLES OF WAR.  REV. STAT. (1878), ART.
60, P. 235; 10 U.S.C.  (1946 ED.)  SEC.  1566, ART. 94, AMENDED 62
STAT. 641, AND IN THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, 34
U.S.C. (1946 ED.)  SEC.  1200, ART. 14 (ELEVENTH), UNTIL THE ENACTMENT
OF THE PRESENT UNIFORM CODE, ART. 3. 

FN14  12 OP. ATTY. GEN. 4, 5:  "IT IS SIMPLY A REGULATION WHICH IS TO
FOLLOW A DISMISSAL, PROVIDING, IN CERTAIN CONTINGENCIES, FOR THE
RESTORATION OF THE OFFICER TO THE SERVICE, AND LEAVING THE DISMISSAL IN
FULL FORCE IF THOSE CONTINGENCES DO NOT HAPPEN." 

IN 1848 ATTORNEY GENERAL TOUCEY, IN THE ABSENCE OF ANY APPLICABLE
RULE FOR THE GOVERNMENT OF THE ARMY, HAD RULED THAT A CHARGE OF MURDER
COULD NOT BE BROUGHT AGAINST AN OFFICER ALREADY MUSTERED OUT.  5 OP.
ATTY. GEN. 55, 58.  A SIMILAR CONCLUSION WAS STATED BY ATTORNEY GENERAL
PALMER (1919), 31 OP. ATTY. GEN. 521, 529.  SEE 8 OP. ATTY. GEN. 328,
332. 

FN15  WE ARE ADVISED BY THE GOVERNMENT THAT THIS CASE WAS REVERSED BY
STIPULATION.  SEE KRONBERG V. HALE, 180 F.2D 128, 130. 

FN16  FIFTH AMENDMENT:  "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." 

SIXTH AMENDMENT:  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL
ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF
THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED,
WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE
INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED
WITH THE WITNESSES AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR
OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL
OR HIS DEFENCE." 

FN17  "ANOTHER GUARANTEE OF FREEDOM WAS BROKEN WHEN MILLIGAN WAS
DENIED A TRIAL BY JURY.  THE GREAT MINDS OF THE COUNTRY HAVE DIFFERED
ON THE CORRECT INTERPRETATION TO BE GIVEN TO VARIOUS PROVISIONS OF THE
FEDERAL CONSTITUTION; AND JUDICIAL DECISION HAS BEEN OFTEN INVOKED TO
SETTLE THEIR TRUE MEANING; BUT UNTIL RECENTLY NO ONE EVER DOUBTED THAT
THE RIGHT OF TRIAL BY JURY WAS FORTIFIED IN THE ORGANIC LAW AGAINST THE
POWER OF ATTACK.  IT IS NOW ASSAILED; BUT IF IDEAS CAN BE EXPRESSED IN
WORDS, AND LANGUAGE HAS ANY MEANING, THIS RIGHT - ONE OF THE MOST
VALUABLE IN A FREE COUNTRY - IS PRESERVED TO EVERY ONE ACCUSED OF CRIME
WHO IS NOT ATTACHED TO THE ARMY, OR NAVY, OR MILITIA IN ACTUAL
SERVICE.  THE SIXTH AMENDMENT AFFIRMS THAT 'IN ALL CRIMINAL
PROSECUTIONS THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC
TRIAL BY AN IMPARTIAL JURY,' LANGUAGE BROAD ENOUGH TO EMBRACE ALL
PERSONS AND CASES; BUT THE FIFTH, RECOGNIZING THE NECESSITY OF AN
INDICTMENT, OR PRESENTMENT, BEFORE ANY ONE CAN BE HELD TO ANSWER FOR
HIGH CRIMES, 'EXCEPTS CASES ARISING IN THE LAND OR NAVAL FORCES, OR IN
THE MILITIA, WHEN IN ACTUAL SERVICE, IN TIME OF WAR OR PUBLIC DANGER;'
AND THE FRAMERS OF THE CONSTITUTION, DOUBTLESS, MEANT TO LIMIT THE
RIGHT OF TRIAL BY JURY, IN THE SIXTH AMENDMENT, TO THOSE PERSONS WHO
WERE SUBJECT TO INDICTMENT OR PRESENTMENT IN THE FIFTH." 

THE FOUR WHO CONCURRED AGREED WITH THE MAJORITY ON THIS POINT: 

"THE CONSTITUTION ITSELF PROVIDES FOR MILITARY GOVERNMENT AS WELL AS
FOR CIVIL GOVERNMENT.  AND WE DO NOT UNDERSTAND IT TO BE CLAIMED THAT
THE CIVIL SAFEGUARDS OF THE CONSTITUTION HAVE APPLICATION IN CASES
WITHIN THE PROPER SPHERE OF THE FORMER. 

"WHAT, THEN, IS THAT PROPER SPHERE?  CONGRESS HAS POWER TO RAISE AND
SUPPORT ARMIES; TO PROVIDE AND MAINTAIN A NAVY; TO MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES; AND TO PROVIDE
FOR GOVERNING SUCH PART OF THE MILITIA AS MAY BE IN THE SERVICE OF THE
UNITED STATES. 

"IT IS NOT DENIED THAT THE POWER TO MAKE RULES FOR THE GOVERNMENT OF
THE ARMY AND NAVY IS A POWER TO PROVIDE FOR TRIAL AND PUNISHMENT BY
MILITARY COURTS WITHOUT A JURY.  IT HAS BEEN SO UNDERSTOOD AND
EXERCISED FROM THE ADOPTION OF THE CONSTITUTION TO THE PRESENT TIME. 

"NOR, IN OUR JUDGMENT, DOES THE FIFTH, OR ANY OTHER AMENDMENT,
ABRIDGE THAT POWER.  'CASES ARISING IN THE LAND AND NAVAL FORCES, OR IN
THE MILITIA IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER,' ARE
EXPRESSLY EXCEPTED FROM THE FIFTH AMENDMENT, 'THAT NO PERSON SHALL BE
HELD TO ANSWER FOR A CAPITAL OR OTHERWISE INFAMOUS CRIME, UNLESS ON A
PRESENTMENT OR INDICTMENT OF A GRAND JURY,' AND IT IS ADMITTED THAT THE
EXCEPTION APPLIES TO THE OTHER AMENDMENTS AS WELL AS TO THE FIFTH. 

     *    *         *         *         * 

"WE THINK, THEREFORE, THAT THE POWER OF CONGRESS, IN THE GOVERNMENT
OF THE LAND AND NAVAL FORCES AND OF THE MILITIA, IS NOT AT ALL AFFECTED
BY THE FIFTH OR ANY OTHER AMENDMENT."  4 WALL., AT 137-138. 

IT WAS SO HELD AS TO HAUPT, TREATED AS AN AMERICAN CITIZEN IN EX
PARTE QUIRIN, 317 U.S. 1, 20, 24, 40, 44. 

"WE CONCLUDE THAT THE FIFTH AND SIXTH AMENDMENTS DID NOT RESTRICT
WHATEVER AUTHORITY WAS CONFERRED BY THE CONSTITUTION TO TRY OFFENSES
AGAINST THE LAW OF WAR BY MILITARY COMMISSION, AND THAT PETITIONERS,
CHARGED WITH SUCH AN OFFENSE NOT REQUIRED TO BE TRIED BY JURY AT COMMON
LAW, WERE LAWFULLY PLACED ON TRIAL BY THE COMMISSION WITHOUT A JURY." 
ID., AT 45. 

FN18  MASSACHUSETTS:  "THAT NO PERSON SHALL BE TRIED FOR ANY CRIME BY
WHICH HE MAY INCUR AN INFAMOUS PUNISHMENT, OR LOSS OF LIFE, UNTIL HE BE
FIRST INDICTED BY A GRAND JURY, EXCEPT IN SUCH CASES AS MAY ARISE IN
THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES." 

NEW HAMPSHIRE:  "THAT NO PERSON SHALL BE TRIED FOR ANY CRIME BY WHICH
HE MAY INCUR AN INFAMOUS PUNISHMENT, OR LOSS OF LIFE, UNTIL HE FIRST BE
INDICTED BY A GRAND JURY, EXCEPT IN SUCH CASES AS MAY ARISE IN THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES." 

NEW YORK:  "THAT (EXCEPT IN THE GOVERNMENT OF THE LAND AND NAVAL
FORCES, AND OF THE MILITIA WHEN IN ACTUAL SERVICE, AND IN CASES OF
IMPEACHMENT) A PRESENTMENT OR INDICTMENT BY A GRAND JURY OUGHT TO BE
OBSERVED AS A NECESSARY PRELIMINARY TO THE TRIAL OF ALL CRIMES
COGNIZABLE BY THE JUDICIARY OF THE UNITED STATES; ...  ." 

RHODE ISLAND:  "THAT, IN ALL CAPITAL AND CRIMINAL PROSECUTIONS, A MAN
HATH THE RIGHT TO DEMAND THE CAUSE AND NATURE OF HIS ACCUSATION, TO BE
CONFRONTED WITH THE ACCUSERS AND WITNESSES, TO CALL FOR EVIDENCE, AND
BE ALLOWED COUNSEL IN HIS FAVOR, AND TO A FAIR AND SPEEDY TRIAL BY AN
IMPARTIAL JURY IN HIS VICINAGE, WITHOUT WHOSE UNANIMOUS CONSENT HE
CANNOT BE FOUND GUILTY, (EXCEPT IN THE GOVERNMENT OF THE LAND AND NAVAL
FORCES,) NOR CAN HE BE COMPELLED TO GIVE EVIDENCE AGAINST HIMSELF."  I
ELLIOT'S DEBATES (2D ED.), 323, 326, 328, 334. 

FN19  AS TO THAT, SENATOR HOWARD, IN CHARGE OF THE BILL, SAID: 

"THE QUESTION ARISES, WHAT IS A 'CASE ARISING IN THE LAND OR NAVAL
FORCES OF THE UNITED STATES?'  THERE IS NOT ANY DOUBT THAT A SOLDIER OR
OFFICER WHO HAS ENLISTED IN THE SERVICE OF THE UNITED STATES IS OR MAY
BE MADE SUBJECT TO MARTIAL LAW.  WHY IS HE MADE SUBJECT TO MARTIAL
LAW?  BECAUSE, BEING IN THE SERVICE OF THE UNITED STATES, THE ACT
COMMITTED BY HIM IS A CASE ARISING IN THAT SERVICE  ...  .  AN OFFICER
OR SOLDIER ENTERS THE ARMY UNDER CONTRACT, UNDER AN AGREEMENT TO RENDER
THIS SERVICE; AND HOW, I BEG TO INQUIRE, DOES THE CASE OF A CONTRACTOR
WHO ENGAGES TO FURNISH ARMS, EQUIPMENTS, OR MUNITIONS OF WAR TO THE
UNITED STATES FOR THE SAME PURPOSE, DIFFER FROM THE CASE OF AN OFFICER
OR SOLDIER WHO IS SIMPLY TO BEAR ARMS AND USE THE MATERIALS WHICH THE
CONTRACTOR IS TO FURNISH?"  CONG. GLOBE, 37TH CONG., 3D SESS. 953
(1863). 

FN20  UNITED STATES V. BEVANS, 3 WHEAT.  336, 388, "THE WATERS ON
WHICH  ...  CASES MAY ARISE"; WARING V. CLARKE, 5 HOW.  441, 466, "CASE
OF COLLISION TAKING PLACE ON THE MISSISSIPPI RIVER"; AND "CAUSE OF
ACTION ARISEN ON THE OCEAN."  ID., AT 467.  DE LOVIO V. BOIT, 7 FED.
CAS. 418, 432, 434-435. 

FN21  "THIS CLAUSE ENABLES THE JUDICIAL DEPARTMENT TO RECEIVE
JURISDICTION TO THE FULL EXTENT OF THE CONSTITUTION, LAWS, AND TREATIES
OF THE UNITED STATES, WHEN ANY QUESTION RESPECTING THEM SHALL ASSUME
SUCH A FORM THAT THE JUDICIAL POWER IS CAPABLE OF ACTING ON IT.  THAT
POWER IS CAPABLE OF ACTING ONLY WHEN THE SUBJECT IS SUBMITTED TO IT BY
A PARTY WHO ASSERTS HIS RIGHTS IN THE FORM PRESCRIBED BY LAW.  IT THEN
BECOMES A CASE, AND THE CONSTITUTION DECLARES, THAT THE JUDICIAL POWER
SHALL EXTEND TO ALL CASES ARISING UNDER THE CONSTITUTION, LAWS, AND
TREATIES OF THE UNITED STATES."  OSBORN V. BANK OF THE UNITED STATES, 9
WHEAT.  738, AT 819. 

"BY CASES AND CONTROVERSIES ARE INTENDED THE CLAIMS OF LITIGANTS
BROUGHT BEFORE THE COURTS FOR DETERMINATION BY SUCH REGULAR PROCEEDINGS
AS ARE ESTABLISHED BY LAW OR CUSTOM FOR THE PROTECTION OR ENFORCEMENT
OF RIGHTS, OR THE PREVENTION, REDRESS, OR PUNISHMENT OF WRONGS. 
WHENEVER THE CLAIM OF A PARTY UNDER THE CONSTITUTION, LAWS, OR TREATIES
OF THE UNITED STATS TAKES SUCH A FORM THAT THE JUDICIAL POWER IS
CAPABLE OF ACTING UPON IT, THEN IT HAS BECOME A CASE.  THE TERM IMPLIES
THE EXISTENCE OF PRESENT OR POSSIBLE ADVERSE PARTIES WHOSE CONTENTIONS
ARE SUBMITTED TO THE COURT FOR ADJUDICATION."  IN RE PACIFIC R.
COMMISSION, 32 F. 241, 255. 

"THESE DEFINITIONS HAVE BEEN ADHERED TO BY THIS COURT IN MUSKRAT V.
UNITED STATES, 219 U.S. 346, 356 AND AETNA LIFE INSURANCE COMPANY V.
HAWORTH, 300 U.S. 227." 

FN22  EX PARTE JOLY, 290 F. 858; TERRY V. UNITED STATES, 2 F. SUPP.
962; KRONBERG V. HALE, 180 F.2D 128. 

MR. JUSTICE MINTON, WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

I AGREE WITH THE OPINION OF MR. JUSTICE REED, AND I WOULD ADD ANOTHER
REASON WHY I THINK THE JUDGMENT SHOULD BE AFFIRMED. 

A CIVILIAN NOT UNDER THE JURISDICTION OF THE MILITARY CODE HAS A
RIGHT TO BE TRIED IN A CIVIL COURT FOR AN ALLEGED CRIME AS A CIVILIAN. 
MY TROUBLE IS THAT I DON'T THINK TOTH WAS A FULL-FLEDGED CIVILIAN.  BY
50 U.S.C. SEC. 553, CONGRESS HAD RETAINED JURISDICTION TO TRY TOTH FOR
A CRIME HE HAD COMMITTED WHILE A SOLDIER AND FOR WHICH ADMITTEDLY HE
COULD HAVE BEEN TRIED BY COURT-MARTIAL IF THE UNITED STATES HAD
DISCOVERED HIS CRIME ONE MINUTE BEFORE DISCHARGE. 

HE WAS NOT A FULL-FLEDGED CIVILIAN UNDER HIS DISCHARGE.  HE WAS STILL
A SOLDIER TO ANSWER IN COURT-MARTIAL FOR THE CRIME HE HAD COMMITTED
WHILE A SOLDIER.  HE HAD A CONDITIONAL DISCHARGE ONLY.  THE UNITED
STATES CLEARLY RESERVED THE RIGHT TO CHARGE AND TRY HIM BY COURT
MARTIAL FOR A CRIME COMMITTED WHILE IN THE STATUS OF A SOLDIER.  THIS
IS THE WAY CONGRESS HAD PROVIDED FOR HIS TRIAL.  NO OTHER WAY WAS
PROVIDED.  THAT IT MAY HAVE PROVIDED ANOTHER WAY IS NOT TO SAY THE WAY
PROVIDED IS INVALID. 

I KNOW OF NO REASON WHY CONGRESS COULD NOT PASS THIS STATUTE, 50
U.S.C. SEC. 553, RETAINING COURT-MARTIAL JURISDICTION OVER TOTH TO
ANSWER FOR A CRIME HE ALLEGEDLY COMMITTED WHEN HE WAS CLEARLY SUBJECT
TO COURT-MARTIAL.  KAHN V. ANDERSON, 255 U.S. 1, HOLDS THAT, EVEN
THOUGH DISCHARGED FROM SERVICE, ONE CONVICTED AND SERVING SENTENCE FOR
A MILITARY OFFENSE COULD STILL BE TRIED BY COURT-MARTIAL FOR MURDER AND
CONSPIRACY TO COMMIT MURDER, EVEN THOUGH THE CRIME WAS ALLEGED TO HAVE
BEEN COMMITTED WITHIN THE LIMITS OF A STATE.  CONGRESS HAD MADE NO
PROVISION FOR RETENTION OF STATUS IN THAT CASE AS IT HAD IN THIS CASE,
YET THE COURT IMPLIED THE CONTINUING MILITARY STATUS TO WARRANT THE
JURISDICTION.  NO IMPLIED STATUS IS NECESSARY HERE.  IT IS EXPRESSLY
RESERVED BY STATUTE.  TOTH REMAINED IN THAT STATUS BY VIRTUE OF THE
STATUTE. 
..END :













CORN PRODUCTS REFINING CO. V. COMMISSIONER OF INTERNAL REVENUE 350 U.S.
46 


NO. 20.  ARGUED OCTOBER 18, 1955 - DECIDED NOVEMBER 7, 1955 - 215 F.2D
513, AFFIRMED. 


PETITIONER'S PURCHASES AND SALES OF CORN FUTURES IN 1940 AND 1942,
WHICH, THOUGH NOT "TRUE HEDGES," WERE AN INTEGRAL PART OF ITS
MANUFACTURING BUSINESS, HELD NOT CAPITAL-ASSET TRANSACTIONS UNDER SEC.
117(A) OF THE INTERNAL REVENUE CODE OF 1939, AND GAINS AND LOSSES
THEREFROM GAVE RISE TO ORDINARY INCOME AND ORDINARY DEDUCTIONS.  PP. 47
54. 

(A)  THE FINDING BY BOTH THE TAX COURT AND THE COURT OF APPEALS THAT
PETITIONER'S PURCHASES CONSTITUTE "AN INTEGRAL PART OF ITS
MANUFACTURING BUSINESS" IS HERE SUSTAINED.  PP. 50-51. 

(B)  THROUGH ITS PURCHASES OF COMMODITY FUTURES, PETITIONER OBTAINED
PARTIAL INSURANCE AGAINST ITS PRINCIPAL RISK - THE POSSIBILITY OF A
PRICE RISE.  P. 51. 

(C)  THE CAPITAL-ASSET PROVISION OF SEC. 117 IS TO BE NARROWLY
CONSTRUED.  P. 52. 

(D)  CONGRESS INTENDED THAT PROFITS AND LOSSES ARISING FROM THE
EVERYDAY OPERATION OF A BUSINESS BE CONSIDERED AS ORDINARY INCOME OR
LOSS RATHER THAN CAPITAL GAIN OR LOSS.  P. 52. 

(E)  THE TREASURY RULING, G.C.M. 17322, THAT HEDGING TRANSACTIONS
WERE ESSENTIALLY TO BE REGARDED AS INSURANCE RATHER THAN DEALINGS IN
CAPITAL ASSETS AND THAT GAINS AND LOSSES THEREFROM WERE ORDINARY
BUSINESS GAINS AND LOSSES, HAS BEEN CONSISTENTLY FOLLOWED BY THE COURTS
AS WELL AS BY THE COMMISSIONER AND HAS HAD THE TACIT APPROVAL OF
CONGRESS.  PP. 52-53. 

(F)  THE CONCLUSION HERE REACHED IS SUPPORTED BY PRACTICAL
CONSIDERATIONS AS WELL AS BY THE STATUTE.  PP. 53-54. 

CORN PRODUCTS REFINING CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE TAX TREATMENT TO BE ACCORDED CERTAIN
TRANSACTIONS IN COMMODITY FUTURES.  (FN1)  IN THE TAX COURT, PETITIONER
CORN PRODUCTS REFINING COMPANY CONTENDED THAT ITS PURCHASES AND SALES
OF CORN FUTURES IN 1940 AND 1942 WERE CAPITAL-ASSET TRANSACTIONS UNDER
SEC. 117(A) OF THE INTERNAL REVENUE CODE OF 1939.  IT FURTHER CONTENDED
THAT ITS FUTURES TRANSACTIONS CAME WITHIN THE "WASH SALES" PROVISIONS
OF SEC. 118.  THE 1940 CLAIM WAS DISPOSED OF ON THE GROUND THAT SEC.
118 DID NOT APPLY, BUT FOR THE YEAR 1942 BOTH THE TAX COURT AND THE
COURT OF APPEALS FOR THE SECOND CIRCUIT, 215 F.2D 513, HELD THAT THE
FUTURES WERE NOT CAPITAL ASSETS UNDER SEC. 117.  WE GRANTED CERTIORARI,
348 U.S. 911, (FN2) BECAUSE OF AN ASSERTED CONFLICT WITH HOLDINGS IN
THE COURTS OF APPEAL FOR THE THIRD, FIFTH, AND SIXTH CIRCUITS.  (FN3)
SINCE WE HOLD THAT THESE FUTURES DO NOT CONSTITUTE CAPITAL ASSETS IN
PETITIONER'S HANDS, WE DO NOT REACH THE ISSUE OF WHETHER THE
TRANSACTIONS WERE "WASH SALES." 

PETITIONER IS A NATIONALLY KNOWN MANUFACTURER OF PRODUCTS MADE FROM
GRAIN CORN.  IT MANUFACTURES STARCH, SYRUP, SUGAR, AND THEIR
BYPRODUCTS, FEEDS AND OIL.  ITS AVERAGE YEARLY GRIND OF RAW CORN DURING
THE PERIOD 1937 THROUGH 1942 VARIED FROM THIRTY-FIVE TO SIXTY MILLION
BUSHELS.  MOST OF ITS PRODUCTS WERE SOLD UNDER CONTRACTS REQUIRING
SHIPMENT IN THIRTY DAYS AT A SET PRICE OR AT MARKET PRICE ON THE DATE
OF DELIVERY, WHICHEVER WAS LOWER.  IT PERMITTED CANCELLATION OF SUCH
CONTRACTS, BUT FROM EXPERIENCE IT COULD CALCULATE WITH SOME ACCURACY
FUTURE ORDERS THAT WOULD REMAIN FIRM.  WHILE IT ALSO SOLD TO A FEW
CUSTOMERS ON LONG-TERM CONTRACTS INVOLVING SUBSTANTIAL ORDERS, THESE
HAD LITTLE EFFECT ON THE TRANSACTION HERE INVOLVED.  (FN4) 

IN 1934 AND AGAIN IN 1936 DROUGHTS IN THE CORN BELT CAUSED A SHARP
INCREASE IN THE PRICE OF SPOT CORN.  WITH A STORAGE CAPACITY OF ONLY
2,300,000 BUSHELS OF CORN, A BARE THREE WEEK'S SUPPLY, CORN PRODUCTS
FOUND ITSELF UNABLE TO BUY AT A PRICE WHICH WOULD PERMIT ITS REFINED
CORN SUGAR, CERELOSE, TO COMPETE SUCCESSFULLY WITH CANE AND BEET
SUGAR.  TO AVOID A RECURRENCE OF THIS SITUATION, PETITIONER, IN 1937,
BEGAN TO ESTABLISH A LONG POSITION IN CORN FUTURES "AS A PART OF ITS
CORN BUYING PROGRAM" AND "AS THE MOST ECONOMICAL METHOD OF OBTAINING AN
ADEQUATE SUPPLY OF RAW CORN" WITHOUT ENTAILING THE EXPENDITURE OF LARGE
SUMS FOR ADDITIONAL STORAGE FACILITIES.  AT HARVEST TIME EACH YEAR IT
WOULD BUY FUTURES WHEN THE PRICE APPEARED FAVORABLE.  IT WOULD TAKE
DELIVERY ON SUCH CONTRACTS AS IT FOUND NECESSARY TO ITS MANUFACTURING
OPERATIONS AND SELL THE REMAINDER IN EARLY SUMMER IF NO SHORTAGE WAS
IMMINENT.  IF SHORTAGES APPEARED, HOWEVER, IT SOLD FUTURES ONLY AS IT
BOUGHT SPOT CORN FOR GRINDING.  (FN5)  IN THIS MANNER IT REACHED A
BALANCED POSITION WITH REFERENCE TO ANY INCREASE IN SPOT CORN PRICES. 
IT MADE NO EFFORT TO PROTECT ITSELF AGAINST A DECLINE IN PRICES. 

IN 1940 IT NETTED A PROFIT OF $680,587.39 IN CORN FUTURES, BUT IN
1942 IT SUFFERED A LOSS OF $109,969.38.  IN COMPUTING ITS TAX LIABILITY
CORN PRODUCTS REPORTED THESE FIGURES AS ORDINARY PROFIT AND LOSS FROM
ITS MANUFACTURING OPERATIONS FOR THE RESPECTIVE YEARS.  IT NOW CONTENDS
THAT ITS FUTURES WERE "CAPITAL ASSETS" UNDER SEC. 117 AND THAT GAINS
AND LOSSES THEREFROM SHOULD HAVE BEEN TREATED AS ARISING FROM THE SALE
OF A CAPITAL ASSET.  (FN6)  IN SUPPORT OF THIS POSITION IT CLAIMS THAT
ITS FUTURES TRADING WAS SEPARATE AND APART FROM ITS MANUFACTURING
OPERATIONS AND THAT IN ITS FUTURES TRANSACTIONS IT WAS ACTING AS A
"LEGITIMATE CAPITALIST."  UNITED STATES V. NEW YORK COFFEE & SUGAR
EXCHANGE, 263 U.S. 611, 619.  IT DENIES THAT ITS FUTURES TRANSACTIONS
WERE "HEDGES" OR "SPECULATIVE" DEALINGS AS COVERED BY THE RULING OF
GENERAL COUNSEL'S MEMORANDUM 17322, XV-2 CUM. BULL.  151, AND CLAIMS
THAT IT IS IN TRUTH "THE FORGOTTEN MAN" OF THAT ADMINISTRATIVE
INTERPRETATION. 

BOTH THE TAX COURT AND THE COURT OF APPEALS FOUND PETITIONER'S
FUTURES TRANSACTIONS TO BE AN INTEGRAL PART OF ITS BUSINESS DESIGNED TO
PROTECT ITS MANUFACTURING OPERATIONS AGAINST A PRICE INCREASE IN ITS
PRINCIPAL RAW MATERIAL AND TO ASSURE A READY SUPPLY FOR FUTURE
MANUFACTURING REQUIREMENTS.  CORN PRODUCTS DOES NOT LEVEL A DIRECT
ATTACK ON THESE TWO-COURT FINDINGS BUT INSISTS THAT ITS FUTURES WERE
"PROPERTY" ENTITLED TO CAPITAL-ASSET TREATMENT UNDER SEC. 117 AND AS
SUCH WERE DISTINCT FROM ITS MANUFACTURING BUSINESS.  WE CANNOT AGREE. 

WE FIND NOTHING IN THIS RECORD TO SUPPORT THE CONTENTION THAT CORN
PRODUCTS' FUTURES ACTIVITY WAS SEPARATE AND APART FROM ITS
MANUFACTURING OPERATION.  ON THE CONTRARY, IT APPEARS THAT THE
TRANSACTIONS WERE VITALLY IMPORTANT TO THE COMPANY'S BUSINESS AS A FORM
OF INSURANCE AGAINST INCREASES IN THE PRICE OF RAW CORN.  NOT ONLY WERE
THE PURCHASES INITIATED FOR JUST THIS REASON, BUT THE PETITIONER'S
SALES POLICY, SELLING IN THE FUTURE AT A FIXED PRICE OR LESS, CONTINUED
TO LEAVE IT EXCEEDINGLY VULNERABLE TO RISES IN THE PRICE OF CORN. 
FURTHER, THE PURCHASE OF CORN FUTURES ASSURED THE COMPANY A SOURCE OF
SUPPLY WHICH WAS ADMITTEDLY CHEAPER THAN CONSTRUCTING ADDITIONAL
STORAGE FACILITIES FOR RAW CORN.  UNDER THESE FACTS IT IS DIFFICULT TO
IMAGINE A PROGRAM MORE CLOSELY GEARED TO A COMPANY'S MANUFACTURING
ENTERPRISE OR MORE IMPORTANT TO ITS SUCCESSFUL OPERATION. 

LIKEWISE THE CLAIM OF CORN PRODUCTS THAT IT WAS DEALING IN THE MARKET
AS A "LEGITIMATE CAPITALIST" LACKS SUPPORT IN THE RECORD.  THERE CAN BE
NO QUARREL WITH A MANUFACTURER'S DESIRE TO PROTECT ITSELF AGAINST
INCREASING COSTS OF RAW MATERIALS.  TRANSACTIONS WHICH PROVIDE SUCH
PROTECTION ARE CONSIDERED A LEGITIMATE FORM OF INSURANCE.  UNITED
STATES V. NEW YORK COFFEE & SUGAR EXCHANGE, 263 U.S., AT 619; BROWNE V.
THORN, 260 U.S. 137, 139-140.  HOWEVER, IN LABELING ITS ACTIVITY AS
THAT OF A "LEGITIMATE CAPITALIST" EXERCISING "GOOD JUDGMENT" IN THE
FUTURES MARKET, PETITIONER IGNORES THE TESTIMONY OF ITS OWN OFFICERS
THAT IN ENTERING THAT MARKET THE COMPANY WAS "TRYING TO PROTECT A PART
OF ITS MANUFACTURING COSTS"; THAT ITS ENTRY WAS NOT FOR THE PURPOSES OF
"SPECULATING AND BUYING AND SELLING CORN FUTURES" BUT TO FILL AN ACTUAL
"NEED FOR THE QUANTITY OF CORN BOUGHT  ...  IN ORDER TO COVER  ... WHAT
PRODUCTS WE EXPECTED TO MARKET OVER A PERIOD OF FIFTEEN OR EIGHTEEN
MONTHS."  IT MATTERS NOT WHETHER THE LABEL BE THAT OF "LEGITIMATE
CAPITALIST" OR "SPECULATOR"; THIS IS NOT THE TALK OF THE CAPITAL
INVESTOR BUT OF THE FAR-SIGHTED MANUFACTURER.  FOR TAX PURPOSES
PETITIONER'S PURCHASES HAVE BEEN FOUND TO "CONSTITUTE AN INTEGRAL PART
OF ITS MANUFACTURING BUSINESS" BY BOTH THE TAX COURT AND THE COURT OF
APPEALS, AND ON ESSENTIALLY FACTUAL QUESTIONS THE FINDINGS OF TWO
COURTS SHOULD NOT ORDINARILY BE DISTURBED.  COMSTOCK V. GROUP OF
INVESTORS, 335 U.S. 211, 214. 

PETITIONER ALSO MAKES MUCH OF THE CONCLUSION BY BOTH THE TAX COURT
AND THE COURT OF APPEALS THAT ITS TRANSACTIONS DID NOT CONSTITUTE "TRUE
HEDGING."  IT IS TRUE THAT CORN PRODUCTS DID NOT SECURE COMPLETE
PROTECTION FROM ITS MARKET OPERATIONS.  UNDER ITS SALES POLICY
PETITIONER COULD NOT GUARD AGAINST A FALL IN PRICES.  IT IS CLEAR,
HOWEVER, THAT PETITIONER FEARED THE POSSIBILITY OF A PRICE RISE MORE
THAN THAT OF A PRICE DECLINE.  IT THEREFORE PURCHASED PARTIAL INSURANCE
AGAINST ITS PRINCIPAL RISK, AND HOPED TO RETAIN SUFFICIENT FLEXIBILITY
TO AVOID SERIOUS LOSSES ON A DECLINING MARKET. 

NOR CAN WE FIND SUPPORT FOR PETITIONER'S CONTENTION THAT HEDGING IS
NOT WITHIN THE EXCLUSIONS OF SEC. 117(A).  ADMITTEDLY, PETITIONER'S
CORN FUTURES DO NOT COME WITHIN THE LITERAL LANGUAGE OF THE EXCLUSIONS
SET OUT IN THAT SECTION.  THEY WERE NOT STOCK IN TRADE, ACTUAL
INVENTORY, PROPERTY HELD FOR SALE TO CUSTOMERS OR DEPRECIABLE PROPERTY
USED IN A TRADE OR BUSINESS.  BUT THE CAPITAL-ASSET PROVISION OF SEC.
117 MUST NOT BE SO BROADLY APPLIED AS TO DEFEAT RATHER THAN FURTHER THE
PURPOSE OF CONGRESS.  BURNET V. HARMEL, 287 U.S. 103, 108.  CONGRESS
INTENDED THAT PROFITS AND LOSSES ARISING FROM THE EVERYDAY OPERATION OF
A BUSINESS BE CONSIDERED AS ORDINARY INCOME OR LOSS RATHER THAN CAPITAL
GAIN OR LOSS.  THE PREFERENTIAL TREATMENT PROVIDED BY SEC. 117 APPLIES
TO TRANSACTIONS IN PROPERTY WHICH ARE NOT THE NORMAL SOURCE OF BUSINESS
INCOME.  IT WAS INTENDED "TO RELIEVE THE TAXPAYER FROM  ...  EXCESSIVE
TAX BURDENS ON GAINS RESULTING FROM A CONVERSION OF CAPITAL
INVESTMENTS, AND TO REMOVE THE DETERRENT EFFECT OF THOSE BURDENS ON
SUCH CONVERSIONS."  BURNET V. HARMEL, 287 U.S., AT 106.  SINCE THIS
INTERNAL REVENUE CODE, THE DEFINITION OF A CAPITAL ASSET MUST BE
NARROWLY APPLIED AND ITS EXCLUSIONS INTERPRETED BROADLY.  THIS IS
NECESSARY TO EFFECTUATE THE BASIC CONGRESSIONAL PURPOSE.  THIS COURT
HAS ALWAYS CONSTRUED NARROWLY THE TERM "CAPITAL ASSETS" IN SEC. 117. 
SEE HORT V. COMMISSIONER, 313 U.S. 28, 31; KIESELBACH V. COMMISSIONER,
317 U.S. 399, 403. 

THE PROBLEM OF THE APPROPRIATE TAX TREATMENT OF HEDGING TRANSACTIONS
FIRST AROSE UNDER THE 1934 TAX CODE REVISION.  (FN7)  THEREAFTER THE
TREASURY ISSUED G.C.M. 17322, SUPRA, DISTINGUISHING SPECULATIVE
TRANSACTIONS IN COMMODITY FUTURES FROM HEDGING TRANSACTIONS.  IT HELD
THAT HEDGING TRANSACTIONS WERE ESSENTIALLY TO BE REGARDED AS INSURANCE
RATHER THAN A DEALING IN CAPITAL ASSETS AND THAT GAINS AND LOSSES
THEREFROM WERE ORDINARY BUSINESS GAINS AND LOSSES.  THE INTERPRETATION
OUTLINED IN THIS MEMORANDUM HAS BEEN CONSISTENTLY FOLLOWED BY THE
COURTS AS WELL AS BY THE COMMISSIONER.  (FN8)  WHILE IT IS TRUE THAT
THIS COURT HAS NOT PASSED ON ITS VALIDITY, IT HAS BEEN WELL RECOGNIZED
FOR 20 YEARS; AND CONGRESS HAS MADE NO CHANGE IN IT THOUGH THE CODE HAS
BEEN RE-ENACTED ON THREE SUBSEQUENT OCCASIONS.  THIS BESPEAKS
CONGRESSIONAL APPROVAL.  HELVERING V. WINMILL, 305 U.S. 79, 83. 
FURTHERMORE, CONGRESS HAS SINCE SPECIFICALLY RECOGNIZED THE HEDGING
EXCEPTION HERE UNDER CONSIDERATION IN THE SHORT-SALE RULE OF SEC.
1233(A) OF THE 1954 CODE.  (FN9) 

WE BELIEVE THAT THE STATUTE CLEARLY REFUTES THE CONTENTION OF CORN
PRODUCTS.  MOREOVER, IT IS SIGNIFICANT TO NOTE THAT PRACTICAL
CONSIDERATIONS LEAD TO THE SAME CONCLUSION.  TO HOLD OTHERWISE WOULD
PERMIT THOSE ENGAGED IN HEDGING TRANSACTIONS TO TRANSMUTE ORDINARY
INCOME INTO CAPITAL GAIN AT WILL.  THE HEDGER MAY EITHER SELL THE
FUTURE AND PURCHASE IN THE SPOT MARKET OR TAKE DELIVERY UNDER THE
FUTURE CONTRACT ITSELF.  BUT IF A SALE OF THE FUTURE CREATED A CAPITAL
TRANSACTION WHILE DELIVERY OF THE COMMODITY UNDER THE SAME FUTURE DID
NOT, A LOOPHOLE IN THE STATUTE WOULD BE CREATED AND THE PURPOSE OF
CONGRESS FRUSTRATED.  THE JUDGMENT IS AFFIRMED. 

FN1  A COMMODITY FUTURE IS A CONTRACT TO PURCHASE SOME FIXED AMOUNT
OF A COMMODITY AT A FUTURE DATE FOR A FIXED PRICE.  CORN FUTURES,
INVOLVED IN THE PRESENT CASE, ARE IN TERMS OF SOME MULTIPLE OF FIVE
THOUSAND BUSHELS TO BE DELIVERED ELEVEN MONTHS OR LESS AFTER THE
CONTRACT.  CF. HOFFMAN, FUTURE TRADING (1932), 118. 

FN2  THE GRANT WAS LIMITED TO THE FOLLOWING TWO QUESTIONS: 

"1.  ARE TRANSACTIONS IN COMMODITY FUTURES WHICH ARE NOT 'TRUE
HEDGES' CAPITAL ASSET TRANSACTIONS AND THUS SUBJECT TO THE LIMITATIONS
OF SECTION 117 OF THE INTERNAL REVENUE CODE OF 1939, OR DO THE
RESULTING GAINS AND LOSSES FROM SUCH TRANSACTIONS GIVE RISE TO ORDINARY
INCOME AND ORDINARY DEDUCTIONS? 

"2.  ARE COMMODITY FUTURES CONTRACTS 'SECURITIES' AND THUS SUBJECT TO
THE 'WASH SALES' PROVISIONS OF SECTION 118 OF THE INTERNAL REVENUE CODE
OF 1939?" 

FN3  MAKRANSKY'S ESTATE V. COMMISSIONER, 154 F.2D 59 (C.A. 3D CIR.);
COMMISSIONER V. FARMERS & GINNERS COTTON OIL CO., 120 F.2D 772 (C.A.
5TH CIR.); TRENTON COTTON OIL CO. V. COMMISSIONER, 147 F.2D 33 (C.A.
6TH CIR.). 

FN4  PETITIONER HAD CONTRACTS WITH THREE CONSUMERS TO FURNISH, FOR A
PERIOD OF TEN YEARS OR MORE, LARGE QUANTITIES OF STARCH OR FEED.  IN
JANUARY 1940, PETITIONER HAD SOLD 2,000,000 BAGS OF CORN SUGAR,
DELIVERY TO BE MADE SEVERAL MONTHS IN THE FUTURE.  ALSO, MEMBERS OF THE
CANNING INDUSTRY ON THE PACIFIC COAST HAD CONTRACTS TO PURCHASE CORN
SUGAR FOR DELIVERY IN MORE THAN THIRTY DAYS. 

FN5  THE DISPOSITIONS OF THE CORN FUTURES DURING THE PERIOD IN
DISPUTE WERE AS FOLLOWS:

               SALES OF                               DELIVERY
UNDER

                           FUTURES THOUSAND
FUTURES THOUSAND

       BUSHELS                                   BUSHELS 

1938                             17,400               4,975 

1939                             14,180
 2,865 

1940                  14,595
250 

1941                              2,545                     2,175 

1942  5,695                                     4,460    FN6  "(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(1); ...  ." 

FN7  SECTION 208(8) OF THE REVENUE ACT OF 1924 LIMITED "CAPITAL
ASSETS" TO PROPERTY HELD MORE THAN TWO YEARS.  THIS DEFINITION WAS
RETAINED UNTIL THE ACT OF 1934.  SINCE THE RULES OF THE VARIOUS
COMMODITY EXCHANGES REQUIRED THAT FUTURES CONTRACTS BE CLOSED OUT IN
PERIODS SHORTER THAN TWO YEARS, THESE CONTRACTS COULD NOT QUALIFY AS
CAPITAL ASSETS. 

FN8  STEWART SILK CORP. V. COMMISSIONER, 9 T.C. 174; BATTELLE V.
COMMISSIONER, 47 B.T.A. 117; GROTE V. COMMISSIONER, 41 B.T.A. 247.  SEE
ESTATE OF MAKRANSKY V. COMMISSIONER, 5 T.C. 397, 412, AFF'D PER CURIAM,
154 F.2D 59; TRENTON COTTON OIL CO. V. COMMISSIONER, 147 F.2D 33, 35;
COMMISSIONER V. FARMERS & GINNERS COTTON OIL CO., 120 F.2D 772, 774;
TENNESSEE EGG CO. V. COMMISSIONER, 47 B.T.A. 558, 560; G.C.M. 18383,
1937-2 CUM. BULL.  244, 245; I.T. 3137, 1937-2 CUM. BULL.  164, 166. 
CF. COMMISSIONER V. BANFIELD, 122 F.2D 1017, 1019-1020; G.C.M. 18658,
1937-2 CUM. BULL.  77. 

FN9  SECTION 1233(A) PROVIDES THAT GAIN OR LOSS FROM "THE SHORT SALE
OF PROPERTY, OTHER THAN A HEDGING TRANSACTION IN COMMODITY FUTURES,"
SHALL BE TREATED AS GAIN OR LOSS FROM THE SALE OF A CAPITAL ASSET TO
THE EXTENT "THAT THE PROPERTY, INCLUDING A COMMODITY FUTURE, USED TO
CLOSE THE SHORT SALE CONSTITUTES A CAPITAL ASSET IN THE HANDS OF A
TAXPAYER."  THE LEGISLATIVE HISTORY RECOGNIZES EXPLICITLY THE HEDGING
EXCEPTION.  H.R. REP. NO. 1337, 83D CONG., 2D SESS., P. A278; S. REP.
NO. 1622, 83D CONG., 2D SESS., P. 437:  "UNDER EXISTING LAW BONA FIDE
HEDGING TRANSACTIONS DO NOT RESULT IN CAPITAL GAINS OR LOSSES.  THIS
RESULT IS BASED UPON CASE LAW AND REGULATIONS.  TO CONTINUE THIS RESULT
HEDGING TRANSACTIONS IN COMMODITY FUTURES HAVE BEEN SPECIFICALLY
EXCEPTED FROM THE OPERATION OF THIS SUBSECTION." 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






UNITED STATES V. ANDERSON, CLAYTON & CO. 350 U.S. 55 


NO. 26.  ARGUED OCTOBER 20, 1955 - DECIDED NOVEMBER 7, 1955 - 129 CT.
CL. 295, 122 F. SUPP. 837, AFFIRMED. 


PURSUANT TO A CONTRACT ENTERED INTO WITHOUT ANY SHOWN PURPOSE OF
ADVANTAGEOUS INVESTMENT BUT SOLELY FOR THE PURPOSE OF MAINTAINING THE
DISTRIBUTION OF ITS COMMON STOCK AMONG RESPONSIBLE AND ACTIVE MEMBERS
OF ITS ORGANIZATION IN A MANNER DESIGNED TO REFLECT THEIR WORTH TO IT,
A CORPORATION PURCHASED THE SHARES OF A DECEASED OFFICER.  THESE SHARES
WERE NOT RETIRED, BUT WERE RETAINED AS TREASURY STOCK.  WHILE IN THE
TREASURY, THEY COULD NOT BE VOTED NOR COUNTED FOR THE PURPOSE OF
ESTABLISHING A QUORUM, NOR WERE DIVIDENDS PAID ON THEM.  SUBSEQUENTLY,
THEY WERE RESOLD AT A PROFIT TO OTHER OFFICERS OF THE CORPORATION,
PURSUANT TO THE CONTRACT.  HELD:  IN THE CIRCUMSTANCES OF THIS CASE,
TREASURY REGULATIONS 111, SEC. 29.22(A)-15, DOES NOT MAKE THE SALE OF
THIS TREASURY STOCK OF THE CORPORATION A TAXABLE TRANSACTION UNDER SEC.
22(A) OF THE INTERNAL REVENUE CODE OF 1939.  PP. 55-60. 

(A)  ON THE RECORD IN THIS CASE, THE CORPORATION WAS NOT DEALING IN
ITS SHARES AS IT MIGHT IN THE SHARES OF ANOTHER CORPORATION, WITHIN THE
MEANING OF THE REGULATION.  PP. 59-60. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE SHARES
WERE NOT RETIRED AND NEW SHARES ISSUED.  P. 60. 

UNITED STATES V. ANDERSON, CLAYTON & CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

ANDERSON, CLAYTON & CO., A DELAWARE CORPORATION, WAS ORGANIZED IN
1929.  ITS CAPITAL STRUCTURE CONSISTED OF PREFERRED STOCK AND 100,000
SHARES OF COMMON STOCK, THE CAPITAL VALUE OF WHICH WAS FIXED AT ONE
DOLLAR PER SHARE.  BY APRIL 21, 1930, ALL OF THE COMMON STOCK HAD BEEN
ISSUED, IN VARYING AMOUNTS, TO THE CORPORATION'S MANAGING OFFICIALS, IN
CONSIDERATION OF THEIR WORTH AND RESPONSIBILITY TO THE COMPANY, WHICH
IS ENGAGED IN THE HIGHLY TECHNICAL AND SKILLED BUSINESS OF COTTON
MERCHANDISING. 

IN 1931 A WRITTEN AGREEMENT WAS ENTERED INTO BETWEEN THE CORPORATION
AND THE COMMON STOCKHOLDERS, THE PURPOSE OF WHICH WAS TO RESTRICT THE
OWNERSHIP OF THE COMMON STOCK TO THE MANAGEMENT GROUP AND TO ADJUST THE
RESPECTIVE INTERESTS IN THE COMMON STOCK AMONG THAT GROUP AS
RESPONSIBILITY CHANGED.  ACCORDINGLY, THE AGREEMENT PROVIDED THAT THE
STOCK COULD NOT BE DISPOSED OF EXCEPT BY WRITTEN CONSENT OF THE OWNERS
OF 75% OF THE COMMON STOCK.  UPON THE DEATH OF ANY PARTY TO THE
AGREEMENT, THE CORPORATION AGREED TO PURCHASE THE COMMON STOCK OF THE
DECEASED AT ITS BOOK VALUE AS OF JULY 31 PRECEDING THE STOCKHOLDER'S
DEATH. 

ONE M.D. ANDERSON, ONE OF THE CHIEF OFFICERS OF THE COMPANY, WAS
ORIGINALLY ISSUED 31,000 SHARES.  DURING THE DEVELOPMENT OF THE
CORPORATION, MR. ANDERSON HAD TRANSFERRED SHARES OF HIS STOCK, PURSUANT
TO THE AGREEMENT, TO JUNIOR OFFICIALS AS THEY ASSUMED MORE DUTIES AND
RESPONSIBILITIES, UNTIL AT THE TIME OF HIS DEATH IN 1939 HE OWNED
18,574 SHARES.  THESE SHARES THE CORPORATION PURCHASED AT THEIR BOOK
VALUE OF $50.79 PER SHARE.  THIS STOCK WAS NOT RETIRED, BUT WAS
RETAINED AS TREASURY STOCK.  WHILE IN THE TREASURY, IT COULD NOT BE
VOTED NOR WERE DIVIDENDS PAID ON IT. 

THE COMPANY IN 1944 SOLD 6,500 OF THESE SHARES TO JUNIOR OFFICIALS AT
THE THEN BOOK VALUE OF $112.68 PER SHARE.  THE DIFFERENCE BETWEEN THE
PRICE PAID ANDERSON'S ESTATE AND THAT RECEIVED FROM THE SALE OF THE
SHARES TO THE JUNIOR OFFICIALS WAS $402,285, ON WHICH THE UNITED STATES
IMPOSED A LONG-TERM CAPITAL-GAINS TAX OF $100,571.25.  RESPONDENT PAID
THE TAX AND SUED IN THE COURT OF CLAIMS TO RECOVER THE AMOUNT.  THE
RESPONDENT TOOK THE POSITION THAT NO LONG-TERM CAPITAL GAIN RESULTED
BECAUSE IT WAS NOT DEALING IN ITS STOCK "AS IT MIGHT IN THE SHARES OF
ANOTHER CORPORATION," AS CONTEMPLATED IN TREASURY REGULATIONS 111, SEC.
29.22(A)-15.  (FN1)  THE COURT OF CLAIMS AGREED WITH RESPONDENT AND
ENTERED JUDGMENT FOR RECOVERY OF THE TAX PAID, WITH INTEREST.  129 CT.
CL. 295, 122 F. SUPP. 837.  WE GRANTED CERTIORARI, 348 U.S. 936,
BECAUSE OF THE CLAIM OF CONFLICT WITH DECISIONS OF THE COURT OF
APPEALS.  (FN2) 

THE SOLE QUESTION THEREFORE IS WHETHER, IN THE CIRCUMSTANCES OF THIS
CASE, TREASURY REGULATIONS 111, SEC. 29.22(A)-15 MAKES THE SALE OF THIS
TREASURY STOCK OF THE CORPORATION A TAXABLE TRANSACTION UNDER SEC.
22(A) OF THE INTERNAL REVENUE CODE OF 1939.  (FN3) 

ARTICLE 66 OF TREASURY REGULATIONS 74, PROMULGATED UNDER THE REVENUE
ACT OF 1928, PROVIDED THAT A CORPORATION WHICH PURCHASES ITS OWN STOCK,
HOLDS IT AS TREASURY STOCK, AND LATER SELLS IT "REALIZES NO GAIN OR
LOSS" FROM SUCH TRANSACTIONS.  THIS COURT UPHELD THAT REGULATION AS A
PROPER ONE INTERPRETIVE OF THE GENERAL TERMS OF SEC. 22(A) OF THE
INTERNAL REVENUE CODE.  HELVERING V. REYNOLDS CO., 306 U.S. 110, 114. 
THE PRESENT REGULATION WAS PROMULGATED IN 1934.  ITS EFFECT WAS TO
REMOVE THE CATEGORICAL EXCLUSION OF TAXABLE GAINS OR LOSSES ARISING OUT
OF THE PURCHASE AND SALE BY A CORPORATION OF ITS OWN STOCK ACCORDED
SUCH TRANSACTIONS BY ARTICLE 66 OF TREASURY REGULATIONS 74.  THE
AMENDED REGULATION SPECIFICALLY EXCLUDES FROM TAX CONSEQUENCES A
CORPORATION'S SALE OF ITS STOCK UPON ORIGINAL ISSUE WHETHER SOLD FOR
MORE OR LESS THAN PAR OR STATED VALUE.  ON THE OTHER HAND, THE
REGULATION SPECIFICALLY PROVIDES THAT TAX CONSEQUENCES FLOW FROM THE
RECEIPT BY THE CORPORATION OF ITS OWN STOCK AS CONSIDERATION FOR SALES
OF ITS PROPERTY OR IN SATISFACTION OF INDEBTEDNESS TO IT. WITH REGARD
TO ALL OTHER DEALINGS BY A CORPORATION IN ITS OWN STOCK, WHETHER OR NOT
TAX CONSEQUENCES RESULT DEPENDS GENERALLY UPON THE "REAL NATURE OF THE
TRANSACTION, WHICH IS TO BE ASCERTAINED FROM ALL ITS FACTS AND
CIRCUMSTANCES."  THE REGULATION PROVIDES FURTHER THAT "IF A CORPORATION
DEALS IN ITS OWN SHARES AS IT MIGHT IN THE SHARES OF ANOTHER
CORPORATION," SUCH DEALINGS ARE CONSIDERED, FOR TAX PURPOSES, AS THOUGH
THE CORPORATION WERE IN FACT DEALING IN THE OTHER CORPORATION'S STOCK. 
THUS, WHETHER THE TRANSACTION HERE IN QUESTION IS TAXABLE DEPENDS, IN
THE FINAL ANALYSIS, ON WHETHER RESPONDENT CORPORATION DEALT WITH ITS
SHARES OF TREASURY STOCK "AS IT MIGHT" HAVE DEALT WITH ANOTHER
CORPORATION'S STOCK. 

THE COURT OF CLAIMS RULED, AFTER A THOROUGH EXAMINATION OF ALL OF THE
FACTS AND CIRCUMSTANCES SURROUNDING THE TRANSACTION, THAT THE
CORPORATION WAS NOT DEALING IN ITS SHARES AS IT MIGHT IN THE SHARES OF
ANOTHER CORPORATION.  THIS CONCLUSION IS ABUNDANTLY SUPPORTED BY THE
SUBSIDIARY FINDINGS, WHICH ARE ALL SUPPORTED BY THE EVIDENCE IN THIS
CASE. 

WE AGREE WITH THE COURT OF CLAIMS.  HERE THE PURCHASE AND SALE WERE
MADE PURSUANT TO A CONTRACT ENTERED INTO WITHOUT ANY SHOWN PURPOSE OF
ADVANTAGEOUS INVESTMENT.  INSTEAD THE PURPOSE OF THE AGREEMENT WAS
FOUND TO BE TO MAINTAIN THE DISTRIBUTION OF THE STOCK AMONG RESPONSIBLE
AND ACTIVE MEMBERS OF THE ORGANIZATION IN A MANNER DESIGNED TO REFLECT
THEIR WORTH TO THE CORPORATION.  INDICATIVE OF THIS SINGLENESS OF
PURPOSE IS THE FACT THAT SOME OF THE STOCK PURCHASED FROM MR.
ANDERSON'S ESTATE WAS SOLD TO THE CORPORATION'S OTHER EXECUTIVES AT A
PRICE BELOW THAT FOR WHICH IT WAS ACQUIRED.  NO CONSIDERATION WAS GIVEN
TO THE OPPORTUNE TIME FOR PURCHASE OR SALE.  THE PURCHASE OF MR.
ANDERSON'S STOCK BY THE CORPORATION WAS DICTATED BY THE TERMS OF THE
CONTRACT UPON THE FORTUITOUS CIRCUMSTANCE OF HIS DEATH.  MOREOVER, WHEN
PURCHASED, THE STOCK WAS LODGED IN THE TREASURY.  IT COULD NOT BE TAKEN
INTO ACCOUNT IN ANY PAYMENT OF DIVIDENDS, NOR VOTED IN SHAREHOLDER
MEETINGS, NOR COUNTED FOR THE PURPOSE OF ESTABLISHING A QUORUM.  THESE
UNRECOGNIZED RIGHTS ARE ALL INCIDENT TO THE OWNERSHIP OF COMMON STOCK
OF OTHER CORPORATIONS.  IT IS THUS CLEAR THAT RESPONDENT WAS NOT
DEALING IN ITS SHARES AS IT MIGHT IN THE SHARES OF OTHERS. 

THE GOVERNMENT URGES THAT THE CRUCIAL INQUIRY AS TO WHETHER THE
TRANSACTION IS TAXABLE UNDER THE REGULATION DEPENDS FOR ITS ANSWER UPON
WHETHER THE REACQUIRED SHARES ARE RESOLD OR RETIRED AND NEW SHARES
ISSUED; SINCE THE SHARES WERE NOT RETIRED, THE RESALE AT A PRICE
GREATER THAN COST RESULTS IN A TAXABLE GAIN UNDER SEC. 22(A) OF THE
CODE AND THE APPLICABLE REGULATION.  THE GOVERNMENT RECEIVES COMFORT
FOR ITS POSITION IN THE LANGUAGE OF COMMISSIONER V. BATTEN, BARTON,
DURSTINE & OSBORN, INC., 171 F.2D 474, 476, AND COMMISSIONER V. LANDERS
CORP., 210 F.2D 188, 191.  BUT WE DO NOT THINK FORMALITIES SHOULD BE
RAISED TO SUCH AN IMPORTANT POSITION.  MOREOVER, THE APPLICABLE
REGULATION PROVIDES THAT TAX CONSEQUENCES DEPEND UPON "THE REAL NATURE
OF THE TRANSACTION, WHICH IS TO BE ASCERTAINED FROM ALL ITS FACTS AND
CIRCUMSTANCES," AND NOT UPON THE SOLE CIRCUMSTANCES THAT THE STOCK IS
NOT RETIRED.  WHEN VIEWED IN ITS ENTIRETY, THE INSTANT TRANSACTION,
LIMITED TO A WHOLLY INTRACORPORATE PURPOSE WITH NO ELEMENT OF
SPECULATION OR GAIN ENVISIONED FROM DEALING IN ITS SHARES, DOES NOT
CONSTITUTE DEALING BY THE CORPORATION IN ITS OWN SHARES AS IT MIGHT
DEAL IN THE SHARES OF ANOTHER CORPORATION WITHIN THE MEANING OF THE
REGULATION. 

THE JUDGMENT IS AFFIRMED. 

FN1  "SEC.  29.22(A)-15.  ACQUISITION OR DISPOSITION BY A CORPORATION
OF ITS OWN CAPITAL STOCK.  (A)  WHETHER THE ACQUISITION OR DISPOSITION
BY A CORPORATION OF SHARES OF ITS OWN CAPITAL STOCK GIVES RISE TO
TAXABLE GAIN OR DEDUCTIBLE LOSS DEPENDS UPON THE REAL NATURE OF THE
TRANSACTION, WHICH IS TO BE ASCERTAINED FROM ALL ITS FACTS AND
CIRCUMSTANCES.  THE RECEIPT BY A CORPORATION OF THE SUBSCRIPTION PRICE
OF SHARES OF ITS CAPITAL STOCK UPON THEIR ORIGINAL ISSUANCE GIVES RISE
TO NEITHER TAXABLE GAIN NOR DEDUCTIBLE LOSS, WHETHER THE SUBSCRIPTION
OR ISSUE PRICE BE IN EXCESS OF, OR LESS THAN, THE PAR OR STATED VALUE
OF SUCH STOCK. 

"(B)  BUT IF A CORPORATION DEALS IN ITS OWN SHARES AS IT MIGHT IN THE
SHARES OF ANOTHER CORPORATION, THE RESULTING GAIN OR LOSS IS TO BE
COMPUTED IN THE SAME MANNER AS THOUGH THE CORPORATION WERE DEALING IN
THE SHARES OF ANOTHER.  SO ALSO IF THE CORPORATION RECEIVES ITS OWN
STOCKS AS CONSIDERATION UPON THE SALE OF PROPERTY BY IT, OR IN
SATISFACTION OF INDEBTEDNESS TO IT, THE GAIN OR LOSS RESULTING IS TO BE
COMPUTED IN THE SAME MANNER AS THOUGH THE PAYMENT HAD BEEN MADE IN ANY
OTHER PROPERTY.  ANY GAIN DERIVED FROM SUCH TRANSACTIONS IS SUBJECT TO
TAX, AND ANY LOSS SUSTAINED IS ALLOWABLE AS A DEDUCTION WHERE PERMITTED
BY THE PROVISIONS OF THE INTERNAL REVENUE CODE." 

FN2  COMMISSIONER V. LANDERS CORP., 210 F.2D 188; COMMISSIONER V.
H.W. PORTER & CO., 187 F.2D 939; COMMISSIONER V. ROLLINS BURDICK HUNTER
CO., 174 F.2D 698; COMMISSIONER V. BATTEN, BARTON, DURSTINE & OSBORN,
INC., 171 F.2D 474. 

FN3  "SEC.  22.  GROSS INCOME. 

"(A)  GENERAL DEFINITION.  'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICES (INCLUDING PERSONAL SERVICE AS AN OFFICER OR EMPLOYEE OF A
STATE, OR ANY POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY ONE OR MORE OF THE FOREGOING), OF WHATEVER KIND
AND IN WHATEVER FORM PAID, OR FROM PROFESSIONS, VOCATIONS, TRADES,
BUSINESSES, COMMERCE, OR SALES, OR DEALINGS IN PROPERTY, WHETHER REAL
OR PERSONAL, GROWING OUT OF THE OWNERSHIP OR USE OF OR INTEREST IN SUCH
PROPERTY; ALSO FROM INTEREST, RENT, DIVIDENDS, SECURITIES, OR THE
TRANSACTION OF ANY BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR
PROFITS AND INCOME DERIVED FROM ANY SOURCE WHATEVER  ...  ." 

FOR TAX YEARS AFTER 1953, TRANSACTIONS SUCH AS THE ONE HERE INVOLVED
CARRY NO TAX CONSEQUENCES BY VIRTUE OF CONGRESSIONAL ENACTMENT OF SEC.
1032 OF THE INTERNAL REVENUE CODE OF 1954, WHICH PROVIDES:  "NO GAIN OR
LOSS SHALL BE RECOGNIZED TO A CORPORATION ON THE RECEIPT OF MONEY OR
OTHER PROPERTY IN EXCHANGE FOR STOCK (INCLUDING TREASURY STOCK) OF SUCH
CORPORATION." 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BURTON DISSENT. 
..END :




















CHESSMAN V. TEETS 350 U.S. 3 


NO. 196.  DECIDED OCTOBER 17, 1955 - 221 F.2D 276, REVERSED. 


PETITIONER APPLIED TO A FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS
CORPUS, CLAIMING THAT HIS AUTOMATIC APPEAL TO THE CALIFORNIA SUPREME
COURT FROM A CONVICTION FOR A CAPITAL OFFENSE HAD BEEN HEARD UPON A
FRAUDULENTLY PREPARED TRANSCRIPT OF THE TRIAL PROCEEDINGS.  HELD:  HIS
APPLICATION ALLEGED A DENIAL OF DUE PROCESS OF LAW IN VIOLATION OF THE
FOURTEENTH AMENDMENT; IT SHOULD NOT HAVE BEEN SUMMARILY DISMISSED; AND
THE CASE IS REMANDED TO THE DISTRICT COURT FOR A HEARING. 

CHESSMAN V. TEETS, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNTIED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

PETITIONER APPLIED TO THE UNITED STATES DISTRICT COURT, NORTHERN
DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, FOR A WRIT OF HABEAS CORPUS,
CLAIMING THAT HIS AUTOMATIC APPEAL TO THE CALIFORNIA SUPREME COURT FROM
A CONVICTION FOR A CAPITAL OFFENSE HAD BEEN HEARD UPON A FRAUDULENTLY
PREPARED TRANSCRIPT OF THE TRIAL PROCEEDINGS.  THE OFFICIAL COURT
REPORTER HAD DIED BEFORE COMPLETING THE TRANSCRIPTION OF HIS
STENOGRAPHIC NOTES OF THE TRIAL, AND PETITIONER ALLEGES THAT THE
PROSECUTING ATTORNEY AND THE SUBSTITUTE REPORTER SELECTED BY HIM HAD,
BY CORRUPT ARRANGEMENT, PREPARED THE FRAUDULENT TRANSCRIPT.   ON THE
RECORD BEFORE US, THERE IS NO DENIAL OF PETITIONER'S ALLEGATIONS.  THE
DISTRICT COURT, WITHOUT ISSUING THE WRIT OR AN ORDER TO SHOW CAUSE,
DISMISSED THE APPLICATION AS NOT STATING A CAUSE OF ACTION.  128 F.
SUPP. 600.  THE COURT OF APPEALS AFFIRMED THE ORDER OF THE DISTRICT
COURT.  221 F.2D 276.  THE CHARGES OF FRAUD AS SUCH SET FORTH A DENIAL
OF DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  SEE
MOONEY V. HOLOHAN, 294 U.S. 103.  WITHOUT INTIMATING ANY OPINION
REGARDING THE VALIDITY OF THE CLAIM, WE HOLD THAT IN THE CIRCUMSTANCES
DISCLOSED BY THE RECORD BEFORE US THE APPLICATION SHOULD NOT HAVE BEEN
SUMMARILY DISMISSED.  ACCORDINGLY, THE PETITION FOR A WRIT OF
CERTIORARI IS GRANTED, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED
AND THE CASE IS REMANDED TO THE DISTRICT COURT FOR A HEARING. 

MR. JUSTICE REED, MR. JUSTICE BURTON, AND MR. JUSTICE CLARK DISSENT. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






MISSISSIPPI V. LOUISIANA 350 U.S. 5 


NO. 11, ORIGINAL.  ARGUED OCTOBER 11, 1955, ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER.  - DECREE ENTERED OCTOBER 17, 1955. 


FINAL DECREE FIXING THE TRUE BOUNDARY BETWEEN MISSISSIPPI AND
LOUISIANA AT CERTAIN POINTS ON THE MISSISSIPPI RIVER. 

MISSISSIPPI V. LOUISIANA. 

    DECREE. 

THIS CAUSE HAVING BEEN SUBMITTED UPON THE PLEADINGS, EVIDENCE AND
EXHIBITS AFTER ARGUMENTS BY COUNSEL UPON THE EXCEPTIONS OF THE STATE OF
LOUISIANA TO THE REPORT OF THE SPECIAL MASTER, THE COURT, HAVING DULY
CONSIDERED THE SAME AND BEING FULLY ADVISED IN THE PREMISES, NOW ENTERS
THE FOLLOWING ORDER: 

THE EXCEPTIONS TO THE REPORT OF THE SPECIAL MASTER ARE OVERRULED. 
THE REPORT OF THE SPECIAL MASTER IS ADOPTED AND HIS PROPOSED DECREE IS
APPROVED AND: 

IT IS ORDERED, ADJUDGED AND DECREED THAT THE TRUE BOUNDARIES BETWEEN
THE STATES OF MISSISSIPPI AND LOUISIANA AT THE PLACES INVOLVED IN THIS
CASE BE AND THEY HEREBY ARE FOUND AND CONCLUDED TO BE AS FOLLOWS: 

DESCRIPTION BY GEODETIC POSITIONS (NORTH AMERICAN DATUM) OF THE LINE
THAT FORMS THE MISSISSIPPI-LOUISIANA STATE BOUNDARY BETWEEN LATITUDE 32
DEGREES 15 MINUTES AND 32 DEGREES 09 MINUTES AND LONGITUDE 90 DEGREES
58 MINUTES TO 91 DEGREES 07 MINUTES, THAT IS, IN THE AREA COMMONLY
KNOWN AS REED-BEDFORD, OAK BEND, DIAMOND ISLAND AND DIAMOND POINT. 

BEGINNING AT A POINT WHERE THE LIVE THALWEG OF THE MISSISSIPPI RIVER
CROSSES THE LINE 32 DEGREES 15 MINUTES NORTH LATITUDE: 

THENCE SOUTHWARD ALONG THE LIVE THALWEG OF THE MISSISSIPPI RIVER TO A
POINT WHERE THE LIVE THALWEG CROSSES THE LINE THAT RUNS SOUTH 60
DEGREES EAST FROM THE POINT THAT IS AT LAT. 32 DEGREES 11 MINUTES 34
SECONDS - LONG.  90 DEGREES 59 MINUTES 47 SECONDS. 

THENCE LEAVING THE THALWEG OF THE MISSISSIPPI RIVER AND RUNNING NORTH
60 DEGREES WEST TO THE POINT BEING AT LAT. 32 DEGREES 11 MINUTES 34
SECONDS - LONG.  90 DEGREES 59 MINUTES 47 SECONDS: 

THENCE RUNNING WESTWARD ALONG THE DEAD THALWEG OF THE ABANDONED
CHANNEL OF THE MISSISSIPPI RIVER (LOWER OAK BEND) TO A POINT THAT IS AT
LAT. 32 DEGREES 11 MINUTES 29 SECONDS - LONG.  91 DEGREES 00 MINUTES (S
5, SMITH EXHIBIT 5). 

THENCE LEAVING THE DEAD THALWEG OF THE ABANDONED CHANNEL OF LOWER OAK
BEND AND RUNNING NORTHWARD (ALONG THE SUTER LINE, SMITH EXHIBIT 5) TO A
POINT THAT IS AT LAT. 32 DEGREES 11 MINUTES 46 SECONDS - LONG.  91
DEGREES 00 MINUTES 09 SECONDS (S-4, SMITH EXHIBIT 5): 

THENCE NORTHWARD TO A POINT THAT IS AT LAT. 32 DEGREES 11 MINUTES 51
SECONDS - LONG.  91 DEGREES 00 MINUTES 11 SECONDS (S-3, SMITH EXHIBIT
5): 

THENCE NORTHWARD TO A POINT THAT IS AT LAT. 32 DEGREES 12 MINUTES 44
SECONDS - LONG.  91 DEGREES 00 MINUTES 20 SECONDS (S-2, SMITH EXHIBIT
5): 

THENCE NORTHWARD TO A POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES 09
SECONDS - LONG.  91 DEGREES 00 MINUTES 14 SECONDS (S-1, SMITH EXHIBIT
5): 

THENCE NORTHWARD TO A POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES 21
SECONDS - LONG.  91 DEGREES 00 MINUTES 10 SECONDS (S, SMITH EXHIBIT
5). 

THENCE RUNNING WESTWARD ALONG THE DEAD THALWEG OF THE ABANDONED
CHANNEL OF THE MISSISSIPPI RIVER THAT LOOPS AROUND THE NORTHERN SIDE OF
DIAMOND ISLAND (DIAMOND ISLAND TOWHEAD) TO A POINT THAT IS AT LAT. 32
DEGREES 13 MINUTES 22 SECONDS - LONG.  91 DEGREES 00 MINUTES 13
SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES 26
SECONDS - LONG.  91 DEGREES 00 MINUTES 22 SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES 31
SECONDS - LONG.  91 DEGREES 00 MINUTES 30 SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES 36
SECONDS - LONG.  91 DEGREES 00 MINUTES 37 SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES 44
SECONDS - LONG.  91 DEGREES 00 MINUTES 47 SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES 49
SECONDS - LONG.  91 DEGREES 00 MINUTES 53 SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES 55
SECONDS - LONG.  91 DEGREES 01 MINUTES: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES -
LONG.  91 DEGREES 01 MINUTES 05 SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES 09
SECONDS - LONG.  91 DEGREES 01 MINUTES 15 SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES 17
SECONDS - LONG.  91 DEGREES 01 MINUTES 29 SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES 23
SECONDS - LONG.  91 DEGREES 01 MINUTES 43 SECONDS: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES 29
SECONDS - LONG.  91 DEGREES 02 MINUTES: 

THENCE WESTWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES 32
SECONDS - LONG.  91 DEGREES 02 MINUTES 16 SECONDS: 

THENCE SOUTHWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES 31
SECONDS - LONG.  91 DEGREES 02 MINUTES 33 SECONDS: 

THENCE SOUTHWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES 26
SECONDS - LONG.  91 DEGREES 02 MINUTES 48 SECONDS: 

THENCE SOUTHWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES 16
SECONDS - LONG.  91 DEGREES 03 MINUTES: 

THENCE SOUTHWARD TO A POINT THAT IS AT LAT. 32 DEGREES 14 MINUTES 00
SECONDS - LONG.  91 DEGREES 03 MINUTES 06 SECONDS: 

THENCE SOUTHWARD TO A POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES 54
SECONDS - LONG.  91 DEGREES 03 MINUTES 08 SECONDS ("C" SMITH EXHIBIT
5). 

THENCE RUNNING SOUTHWARD (ALONG SMITH LINE "C" EXHIBIT 5) TO THE
POINT THAT IS LAT.  32 DEGREES 13 MINUTES 41 SECONDS - LONG.  91
DEGREES 03 MINUTES 10 SECONDS (C-1 SMITH EXHIBIT 5): 

THENCE SOUTHWARD TO THE POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES
31 SECONDS - LONG.  91 DEGREES 03 MINUTES 16 SECONDS (C-2 SMITH EXHIBIT
5): 

THENCE SOUTHWARD TO THE POINT THAT IS AT LAT. 32 DEGREES 13 MINUTES
07 SECONDS - LONG.  91 DEGREES 03 MINUTES 40 SECONDS (C-3 SMITH EXHIBIT
5). 

THENCE RUNNING WESTWARDLY ALONG THE DEAD THALWEG OF THE ABANDONED
CHANNEL OF THE MISSISSIPPI RIVER (LOWER OAK BEND) TO THE POINT THAT IS
AT LAT. 32 DEGREES 13 MINUTES 23 SECONDS - LONG.  91 DEGREES 04
MINUTES: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 13 MINUTES 37 SECONDS -
LONG.  91 DEGREES 04 MINUTES 30 SECONDS: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 13 MINUTES 35 SECONDS -
LONG.  91 DEGREES 05 MINUTES:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 13 MINUTES 26 SECONDS -
LONG.  91 DEGREES 05 MINUTES 30 SECONDS: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 13 MINUTES 04 SECONDS -
LONG.  91 DEGREES 06 MINUTES:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 12 MINUTES 30 SECONDS -
LONG.  91 DEGREES 06 MINUTES 28 SECONDS: 

THENCE WESTWARDLY TO A POINT AT THE HEAD OF PALMYRA LAKE AND KELLOGG
LAKE (WHERE THE NORTHERN AND WESTERN BOUNDARY OF DIAMOND POINT ENDS AND
WHICH IS POINT OF BEGINNING  OF THE SOUTHERN BOUNDARY OF DIAMOND
POINT), LAT. 32 DEGREES 12 MINUTES 24 SECONDS - LONG.  91 DEGREES 06
MINUTES 44 SECONDS: 

THENCE WESTWARDLY ALONG THE THALWEG OF PALMYRA LAKE TO A POINT, LAT.
32 DEGREES 12 MINUTES 26 SECONDS - LONG.  91 DEGREES 07 MINUTES. 

THAT PORTION OF THE SOUTHERN BOUNDARY OF DIAMOND POINT THAT ALSO
FORMS THE MISSISSIPPI-LOUISIANA STATE BOUNDARY IS DESCRIBED AS
FOLLOWS: 

BEGINNING AT THE THALWEG OF THE MISSISSIPPI RIVER AT THE LOWER END OF
DIAMOND POINT CUT-OFF AT A POINT, BEING AT LAT. 32 DEGREES 09 MINUTES
46 SECONDS - LONG.  91 DEGREES 00 MINUTES (SMITH EXHIBIT 5): 

THENCE WESTWARDLY ALONG THE DEAD THALWEG OF THE ABANDONED CHANNEL OF
THE MISSISSIPPI RIVER AND SO-CALLED KELLOGG LAKE TO A POINT, LAT. 32
DEGREES 09 MINUTES 43 SECONDS - LONG.  91 DEGREES 00 MINUTES 30
SECONDS: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 09 MINUTES 40 SECONDS -
LONG.  91 DEGREES 01 MINUTES:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 09 MINUTES 45 SECONDS -
LONG.  91 DEGREES 01 MINUTES 30 SECONDS: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 10 MINUTES - LONG.  91
DEGREES 01 MINUTES 52 SECONDS:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 10 MINUTES 07 SECONDS -
LONG.  91 DEGREES 02 MINUTES:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 10 MINUTES 27 SECONDS -
LONG.  91 DEGREES 02 MINUTES 29 SECONDS: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 10 MINUTES 41 SECONDS -
LONG.  91 DEGREES 03 MINUTES:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 10 MINUTES 50 SECONDS -
LONG.  91 DEGREES 03 MINUTES 30 SECONDS. 

THE FOLLOWING PORTION OF THIS DESCRIPTION IS INSERTED HERE TO
COMPLETE THE SOUTHERN BOUNDARY OF DIAMOND POINT AND TO JOIN THE TWO
PORTIONS OF THE MISSISSIPPI-LOUISIANA STATE BOUNDARY: 

THENCE CONTINUING WESTWARDLY ALONG THE DEAD THALWEG IN THE ABANDONED
CHANNEL OF THE MISSISSIPPI RIVER AND SO-CALLED KELLOGG LAKE TO A POINT,
LAT. 32 DEGREES 10 MINUTES 54 SECONDS - LONG.  91 DEGREES 04 MINUTES: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 11 MINUTES - LONG.  91
DEGREES 04 MINUTES 18 SECONDS:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 11 MINUTES 03 SECONDS -
LONG.  91 DEGREES 04 MINUTES 30 SECONDS: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 11 MINUTES 11 SECONDS -
LONG.  91 DEGREES 05 MINUTES:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 11 MINUTES 25 SECONDS -
LONG.  91 DEGREES 05 MINUTES 30 SECONDS: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 11 MINUTES 44 SECONDS -
LONG.  91 DEGREES 06 MINUTES:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 12 MINUTES - LONG.  91
DEGREES 06 MINUTES 10 SECONDS:

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 12 MINUTES 07 SECONDS -
LONG.  91 DEGREES 06 MINUTES 15 SECONDS: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 12 MINUTES 20 SECONDS -
LONG.  91 DEGREES 06 MINUTES 30 SECONDS: 

THENCE WESTWARDLY TO A POINT, LAT. 32 DEGREES 12 MINUTES 24 SECONDS -
LONG.  91 DEGREES 06 MINUTES 44 SECONDS (BEING THE POINT AT THE HEAD OF
PALMYRA LAKE AND KELLOGG LAKE WHERE THE NORTHERN AND WESTERN BOUNDARY
OF DIAMOND POINT ENDS AND JOINS WITH THE SOUTHERN BOUNDARY OF DIAMOND
POINT). 

THE COSTS OF THIS SUIT ARE EQUALLY DIVIDED BETWEEN THE TWO STATES,
PLAINTIFF AND DEFENDANT. 
..END :






LUCY V. ADAMS 350 U.S. 1 


NO. 294, MISC.  DECIDED OCTOBER 10, 1955 - 134 F. SUPP. 235, INJUNCTION
REINSTATED IN PART. 


THE INJUNCTION WHICH THE DISTRICT COURT ISSUED IN THIS CASE, BUT
SUSPENDED PENDING APPEAL TO THE COURT OF APPEALS, IS REINSTATED TO THE
EXTENT THAT IT ENJOINS AND RESTRAINS THE RESPONDENT AND OTHERS
DESIGNATED FROM DENYING THESE PETITIONERS, SOLELY ON ACCOUNT OF THEIR
RACE OR COLOR, THE RIGHT TO ENROLL IN THE UNIVERSITY OF ALABAMA AND
PURSUE COURSES OF STUDY THERE. 

LUCY ET AL. V. ADAMS, DEAN OF ADMISSIONS, UNIVERSITY OF ALABAMA. 

APPLICATION TO VACATE ORDER GRANTING STAY OF INJUNCTION PENDING
APPEAL AND TO REINSTATE INJUNCTION PENDING APPEAL. 

PER CURIAM. 

PETITIONERS, AUTHERINE J. LUCY AND POLLY ANNE MYERS, CITIZENS OF
ALABAMA, HAVE BEEN SEEKING ADMISSION TO THE UNIVERSITY OF ALABAMA SINCE
SEPTEMBER 1952.  RESPONDENT WILLIAM F. ADAMS IS DEAN OF ADMISSIONS OF
THE UNIVERSITY.  AFTER HEARINGS, UNITED STATES DISTRICT JUDGE GROOMS OF
THE NORTHERN DISTRICT OF ALABAMA FOUND THAT PETITIONERS HAD BEEN DENIED
ADMISSION TO THE UNIVERSITY "SOLELY ON ACCOUNT OF THEIR RACE AND
COLOR."  HOLDING THIS DENIED PETITIONERS EQUAL PROTECTION OF STATE
LAWS, THE COURT PERMANENTLY ENJOINED RESPONDENT ADAMS, HIS AGENTS,
EMPLOYEES AND OTHERS ACTING IN CONCERT WITH RESPONDENT "FROM DENYING
THE PLAINTIFFS AND OTHERS SIMILARLY SITUATED THE RIGHT TO ENROLL IN THE
UNIVERSITY OF ALABAMA AND PURSUE COURSES OF STUDY THEREAT, SOLELY ON
ACCOUNT OF THEIR RACE OR COLOR."  134 F. SUPP. 235.  RESPONDENT'S
MOTION TO SUSPEND THE INJUNCTION PENDING APPEAL TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT WAS GRANTED BY THE DISTRICT
JUDGE.  A JUDGE OF THAT COURT DENIED A MOTION TO VACATE THE SUSPENSION
AND REINSTATE THE INJUNCTION.  A SIMILAR MOTION IS NOW BEFORE US. 

THE MOTION IS GRANTED AND THE INJUNCTION IS REINSTATED TO THE EXTENT
THAT IT ENJOINS AND RESTRAINS THE RESPONDENT AND OTHERS DESIGNATED FROM
DENYING THESE PETITIONERS, AUTHERINE LUCY AND POLLY ANNE MYERS, THE
RIGHT TO ENROLL IN THE UNIVERSITY OF ALABAMA AND PURSUE COURSES OF
STUDY THERE.  SIPUEL V. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA,
332 U.S. 631; SWEATT V. PAINTER, 339 U.S. 629; MCLAURIN V. OKLAHOMA
STATE REGENTS FOR HIGHER EDUCATION, 339 U.S. 637.  IN OTHER RESPECTS,
THE MOTION IS DENIED. 
..END :







LAWLOR, TRADING AS INDEPENDENT POSTER EXCHANGE V. NATIONAL SCREEN
SERVICE CORP. 349 U.S. 322 


NO. 163.  ARGUED FEBRUARY 9-10, 1955 - DECIDED JUNE 6, 1955 - 211 F.2D
934, REVERSED. 


IN 1942, ALLEGING THAT THE DEFENDANTS HAD CONSPIRED TO ESTABLISH A
MONOPOLY IN THE DISTRIBUTION OF MOTION PICTURE ADVERTISING MATERIAL,
PETITIONERS AND OTHERS BROUGHT AN ANTITRUST ACTION FOR TREBLE DAMAGES
AND INJUNCTIVE RELIEF AGAINST NATIONAL SCREEN AND THREE MOTION PICTURE
PRODUCERS WHO HAD GRANTED EXCLUSIVE LICENSES TO NATIONAL SCREEN TO
MANUFACTURE AND LEASE SUCH MATERIAL.  IN 1943, PURSUANT TO A SETTLEMENT
MADE BEFORE TRIAL AND WITHOUT ANY FINDINGS OF FACT OR LAW HAVING BEEN
MADE, THAT ACTION WAS DISMISSED "WITH PREJUDICE" AND SUBLICENSES WERE
GRANTED BY NATIONAL SCREEN TO THE PLAINTIFFS.  IN 1949, PETITIONERS
BROUGHT A SIMILAR ACTION AGAINST THE SAME DEFENDANTS, PLUS FIVE
ADDITIONAL MOTION PICTURE PRODUCERS, ALLEGING THAT SETTLEMENT OF THE
1942 SUIT WAS MERELY A DEVICE USED TO PERPETUATE THE CONSPIRACY AND
MONOPOLY, THAT THE FIVE ADDITIONAL PRODUCERS HAD SINCE JOINED THE
CONSPIRACY, AND THAT NATIONAL SCREEN HAD DELIBERATELY MADE SLOW AND
ERRATIC DELIVERIES UNDER THE SUBLICENSE IN AN EFFORT TO DESTROY
PETITIONERS' BUSINESS AND HAD USED TIE-IN SALES AND OTHER MEANS OF
EXPLOITING ITS MONOPOLY POWER.  PETITIONERS SOUGHT DAMAGES FOR ONLY
THOSE INJURIES SUSTAINED AFTER THE 1943 JUDGMENT.  HELD:  THE 1949
ACTION WAS NOT BARRED BY THE 1943 JUDGMENT UNDER THE DOCTRINE OF RES
JUDICATA.  PP. 323-330. 

(A)  SINCE THE 1943 JUDGMENT WAS NOT ACCOMPANIED BY FINDINGS, IT DID
NOT BIND THE PARTIES ON ANY ISSUE - SUCH AS THE LEGALITY OF THE
EXCLUSIVE LICENSE AGREEMENTS OR THEIR EFFECT ON PETITIONERS' BUSINESS -
WHICH MIGHT ARISE IN CONNECTION WITH ANOTHER CAUSE OF ACTION.  PP. 326
327. 

(B)  WHETHER THE DEFENDANTS' CONDUCT BE REGARDED AS A SERIES OF
INDIVIDUAL TORTS OR AS ONE CONTINUING TORT, THE TWO SUITS WERE NOT
BASED ON THE SAME CAUSE OF ACTION, AND THE 1943 JUDGMENT DOES NOT BAR
THE 1949 SUIT.  PP. 327-328. 

(C)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE 1942
COMPLAINT SOUGHT, IN ADDITION TO TREBLE DAMAGES, INJUNCTIVE RELIEF
WHICH, IF GRANTED, WOULD HAVE PREVENTED THE ILLEGAL ACTS NOW COMPLAINED
OF.  PP. 328-329. 

(D)  WITH RESPECT TO THE FIVE DEFENDANTS WHO WERE NOT PARTIES TO THE
1942 SUIT, MOREOVER, THEIR RELATIONSHIP TO THE OTHER DEFENDANTS WAS NOT
CLOSE ENOUGH TO BRING THEM WITHIN THE SCOPE OF THE DOCTRINE OF RES
JUDICATA.  PP. 329-330. 

LAWLOR ET AL., TRADING AS INDEPENDENT POSTER EXCHANGE, V. NATIONAL
SCREEN SERVICE CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION TO RECOVER TREBLE DAMAGES FOR ALLEGED VIOLATION OF
THE FEDERAL ANTITRUST LAWS.  THE ONLY QUESTION PRESENTED IS WHETHER THE
ACTION IS BARRED, IN THE CIRCUMSTANCES OF THE CASE, UNDER THE DOCTRINE
OF RES JUDICATA. 

PETITIONERS ARE ENGAGED IN THE BUSINESS OF LEASING ADVERTISING
POSTERS TO MOTION PICTURE EXHIBITORS IN THE PHILADELPHIA AREA.  SUCH
POSTERS, KNOWN IN THE TRADE AS STANDARD ACCESSORIES, EMBODY COPYRIGHTED
MATTER FROM THE MOTION PICTURES BEING ADVERTISED.  UNTIL RECENT YEARS,
STANDARD ACCESSORIES COULD BE PURCHASED DIRECTLY FROM THE MOTION
PICTURE COMPANIES THEMSELVES.  BEGINNING WITH PARAMOUNT IN 1939,
HOWEVER, THE EIGHT MAJOR PRODUCERS GRANTED TO NATIONAL SCREEN SERVICE
CORPORATION THE EXCLUSIVE RIGHT TO MANUFACTURE AND DISTRIBUTE VARIOUS
ADVERTISING MATERIALS, INCLUDING STANDARD ACCESSORIES AS WELL AS
SPECIALTY ACCESSORIES AND FILM TRAILERS, FOR THEIR MOTION PICTURES. 
RKO FOLLOWED IN 1940, LOEW'S IN 1942, UNIVERSAL IN 1944, COLUMBIA IN
1945, UNITED ARTISTS AND WARNER BROTHERS IN 1946, AND 20TH CENTURY FOX
IN 1947. 

IN 1942, TOGETHER WITH A NUMBER OF OTHERS IN SIMILAR BUSINESSES,
PETITIONERS COMMENCED A TREBLE-DAMAGE ANTITRUST ACTION AGAINST NATIONAL
SCREEN AND THE THREE PRODUCERS WHO HAD ALREADY GRANTED EXCLUSIVE
LICENSES TO NATIONAL SCREEN.  THE COMPLAINT ALLEGED THAT THE DEFENDANTS
HAD CONSPIRED TO ESTABLISH A MONOPOLY IN THE DISTRIBUTION OF STANDARD
ACCESSORIES BY MEANS OF THE EXCLUSIVE LICENSES AND THAT THE PLAINTIFFS'
BUSINESSES HAD BEEN INJURED AS A CONSEQUENCE.  THE COMPLAINT ALSO
ALLEGED THAT NATIONAL SCREEN WAS THEN NEGOTIATING WITH THE OTHER MAJOR
PRODUCERS TO PROCURE SIMILAR LICENSES.  IN ADDITION TO DAMAGES, AN
INJUNCTION WAS SOUGHT AGAINST THE DEFENDANTS' "ILLEGAL ACTS AND
PRACTICES." 

IN 1943, PRIOR TO ANY TRIAL, THE SUIT WAS SETTLED.  THE BASIS OF THE
SETTLEMENT WAS AN AGREEMENT BY NATIONAL SCREEN TO FURNISH THE
PLAINTIFFS WITH ALL STANDARD ACCESSORIES DISTRIBUTED BY NATIONAL SCREEN
PURSUANT TO ITS EXCLUSIVE LICENSE AGREEMENTS WITH PRODUCERS, INCLUDING
EXCLUSIVE LICENSE AGREEMENTS WHICH MIGHT BE EXECUTED IN THE FUTURE.  IN
EXCHANGE, THE PLAINTIFFS AGREED THAT THEY WOULD WITHDRAW THE SUIT AND
THAT THEY WOULD PAY NATIONAL SCREEN FOR THE MATERIALS AT SPECIFIED
PRICES.  PURSUANT TO THE SETTLEMENT, THE SUIT WAS DISMISSED "WITH
PREJUDICE" BY COURT ORDER.  NO FINDINGS OF FACT OR LAW WERE MADE. 

THE SUBLICENSE WAS TO RUN THREE YEARS.  IN 1946 IT WAS RENEWED FOR
ANOTHER FIVE-YEAR TERM.  IN 1949, WHILE THE SUBLICENSE WAS STILL IN
FORCE, PETITIONERS BROUGHT THE INSTANT ACTION, AGAIN SEEKING TREBLE
DAMAGES AND INJUNCTIVE RELIEF.  NAMED AS DEFENDANTS - RESPONDENTS HERE
WERE NATIONAL SCREEN, THE THREE PRODUCERS WHO WERE PARTIES TO THE 1942
SUIT, AND THE FIVE PRODUCERS WHO LICENSED NATIONAL SCREEN SUBSEQUENT TO
THE DISMISSAL OF THE 1942 SUIT. 

IN THEIR PRESENT COMPLAINT, PETITIONERS ALLEGE THAT THE SETTLEMENT OF
THE 1942 SUIT WAS MERELY A DEVICE USED BY THE DEFENDANTS IN THAT CASE
TO PERPETUATE THEIR CONSPIRACY AND MONOPOLY.  THEY ALSO ALLEGE:  THAT
FIVE OTHER PRODUCERS HAVE JOINED THE CONSPIRACY SINCE 1943; THAT
NATIONAL SCREEN HAS DELIBERATELY MADE SLOW AND ERRATIC DELIVERIES OF
ADVERTISING MATERIALS UNDER THE SUBLICENSE IN AN EFFORT TO DESTROY
PETITIONERS' BUSINESS; AND THAT FOR THE SAME PURPOSE NATIONAL SCREEN
HAS USED TIE-IN SALES AND OTHER MEANS OF EXPLOITING ITS MONOPOLY
POWER.  (FN1)  PETITIONERS SEEK DAMAGES FOR RESULTING INJURIES SUFFERED
FROM AUGUST 16, 1943 - IN OTHER WORDS, FOR A PERIOD BEGINNING SEVERAL
MONTHS AFTER THE DISMISSAL OF THE 1942 COMPLAINT. 

IN 1951, ON PETITIONERS' MOTION FOR SUMMARY JUDGMENT, THE DISTRICT
COURT HELD THAT PETITIONERS WERE ENTITLED TO INJUNCTIVE RELIEF AGAINST
NATIONAL SCREEN BECAUSE THE UNDISPUTED FACTS SUPPORTED PETITIONERS'
CLAIM OF UNLAWFUL MONOPOLY.  (FN2)  AS TO THE PRODUCERS, HOWEVER, THE
DISTRICT COURT HELD THAT THE CONFLICTING EVIDENCE ON THE ISSUE OF
CONSPIRACY MADE A TRIAL NECESSARY.  (FN3)  BUT IN 1953, BEFORE ANY
TRIAL WAS HELD AND BEFORE A DECREE AGAINST NATIONAL SCREEN COULD BE
FRAMED, THE DEFENDANTS MOVED TO DISMISS THE ACTION ON THE GROUND THAT
THE 1943 JUDGMENT WAS RES JUDICATA.  THE DISTRICT COURT, ANOTHER JUDGE
THEN SITTING, GRANTED THE MOTION AND THE COURT OF APPEALS FOR THE THIRD
CIRCUIT AFFIRMED.  (FN4) WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THE QUESTION THUS PRESENTED IN THE ENFORCEMENT OF THE
FEDERAL ANTITRUST LAWS.  (FN5) 

THE BASIC DISTINCTION BETWEEN THE DOCTRINES OF RES JUDICATA AND
COLLATERAL ESTOPPEL, AS THOSE TERMS ARE USED IN THIS CASE, HAS
FREQUENTLY BEEN EMPHASIZED.  (FN6)  THUS, UNDER THE DOCTRINE OF RES
JUDICATA, A JUDGMENT "ON THE MERITS" IN A PRIOR SUIT INVOLVING THE SAME
PARTIES OR THEIR PRIVIES BARS A SECOND SUIT BASED ON THE SAME CAUSE OF
ACTION.  UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, ON THE OTHER HAND,
SUCH A JUDGMENT PRECLUDES RELITIGATION OF ISSUES ACTUALLY LITIGATED AND
DETERMINED IN THE PRIOR SUIT, REGARDLESS OF WHETHER IT WAS BASED ON THE
SAME CAUSE OF ACTION AS THE SECOND SUIT.  RECOGNIZING THIS DISTINCTION,
THE COURT BELOW CONCLUDED THAT "NO QUESTION OF COLLATERAL ESTOPPEL BY
THE FORMER JUDGMENT IS INVOLVED BECAUSE THE CASE WAS NEVER TRIED AND
THERE WAS NOT, THEREFORE, SUCH FINDING OF FACT WHICH WILL PRECLUDE THE
PARTIES TO THAT LITIGATION FROM QUESTIONING THE FINDING THEREAFTER." 
(FN7)  TURNING THEN TO THE DOCTRINE OF RES JUDICATA, THE COURT
CORRECTLY STATED THE QUESTION BEFORE IT AS "WHETHER THE PLAINTIFFS IN
THE PRESENT SUIT ARE SUING UPON THE 'SAME CAUSE OF ACTION' AS THAT UPON
WHICH THEY SUED IN 1942 AND LOST."  (FN8)  THE COURT ANSWERED THE
QUESTION IN THE AFFIRMATIVE ON THE GROUND THAT THE TWO SUITS WERE BASED
ON "ESSENTIALLY THE SAME COURSE OF WRONGFUL CONDUCT."  (FN9)  THE COURT
ACKNOWLEDGED THAT "THERE ARE SOME ADDITIONAL ALLEGATIONS, SOME NEW ACTS
WHICH THE PLAINTIFFS SAY THE DEFENDANTS HAVE DONE SINCE THE EARLIER
SUIT" AND THAT "ADDITIONAL DEFENDANTS WERE JOINED IN THE 1949 SUIT,"
BUT CONCLUDED THAT "IN SUBSTANCE THE COMPLAINT IS THE SAME  ...  ." 
(FN10) 

IT IS OF COURSE TRUE THAT THE 1943 JUDGMENT DISMISSING THE PREVIOUS
SUIT "WITH PREJUDICE" BARS A LATER SUIT ON THE SAME CAUSE OF ACTION. 
(FN11)  IT IS LIKEWISE TRUE THAT THE JUDGMENT WAS UNACCOMPANIED BY
FINDINGS AND HENCE DID NOT BIND THE PARTIES ON ANY ISSUE - SUCH AS THE
LEGALITY OF THE EXCLUSIVE LICENSE AGREEMENTS OR THEIR EFFECT ON
PETITIONERS' BUSINESS - WHICH MIGHT ARISE IN CONNECTION WITH ANOTHER
CAUSE OF ACTION.  (FN12)  TO THIS EXTENT WE ARE IN ACCORD WITH THE
DECISION BELOW.  WE BELIEVE, HOWEVER, THAT THE COURT ERRED IN
CONCLUDING THAT THE 1942 AND 1949 SUITS WERE BASED ON THE SAME CAUSE OF
ACTION. 

THAT BOTH SUITS INVOLVED "ESSENTIALLY THE SAME COURSE OF WRONGFUL
CONDUCT" IS NOT DECISIVE.  SUCH A COURSE OF CONDUCT - FOR EXAMPLE, AN
ABATABLE NUISANCE - MAY FREQUENTLY GIVE RISE TO MORE THAN A SINGLE
CAUSE OF ACTION.  (FN13)  AND SO IT IS HERE.  THE CONDUCT PRESENTLY
COMPLAINED OF WAS ALL SUBSEQUENT TO THE 1943 JUDGMENT.  (FN14)  IN
ADDITION, THERE ARE NEW ANTITRUST VIOLATIONS ALLEGED HERE -
DELIBERATELY SLOW DELIVERIES AND TIE-IN SALES, AMONG OTHERS - NOT
PRESENT IN THE FORMER ACTION.  WHILE THE 1943 JUDGMENT PRECLUDES
RECOVERY ON CLAIMS ARISING PRIOR TO ITS ENTRY, IT CANNOT BE GIVEN THE
EFFECT OF EXTINGUISHING CLAIMS WHICH DID NOT EVEN THEN EXIST AND WHICH
COULD NOT POSSIBLY HAVE BEEN SUED UPON IN THE PREVIOUS CASE.  IN THE
INTERIM, MOREOVER, THERE WAS A SUBSTANTIAL CHANGE IN THE SCOPE OF THE
DEFENDANTS' ALLEGED MONOPOLY; FIVE OTHER PRODUCERS HAD GRANTED
EXCLUSIVE LICENSES TO NATIONAL SCREEN, WITH THE RESULT THAT THE
DEFENDANTS' CONTROL OVER THE MARKET FOR STANDARD ACCESSORIES HAD
INCREASED TO NEARLY 100%.  (FN15)  UNDER THESE CIRCUMSTANCES, WHETHER
THE DEFENDANTS' CONDUCT BE REGARDED AS A SERIES OF INDIVIDUAL TORTS OR
AS ONE CONTINUING TORT, THE 1943 JUDGMENT DOES NOT CONSTITUTE A BAR TO
THE INSTANT SUIT. 

THIS CONCLUSION IS UNAFFECTED BY THE CIRCUMSTANCE THAT THE 1942
COMPLAINT SOUGHT, IN ADDITION TO TREBLE DAMAGES, INJUNCTIVE RELIEF
WHICH, IF GRANTED, WOULD HAVE PREVENTED THE ILLEGAL ACTS NOW COMPLAINED
OF.  A COMBINATION OF FACTS CONSTITUTING TWO OR MORE CAUSES OF ACTION
ON THE LAW SIDE OF A COURT DOES NOT CONGEAL INTO A SINGLE CAUSE OF
ACTION MERELY BECAUSE EQUITABLE RELIEF IS ALSO SOUGHT.  AND, AS ALREADY
NOTED, A PRIOR JUDGMENT IS RES JUDICATA ONLY AS TO SUITS INVOLVING THE
SAME CAUSE OF ACTION.  (FN16)  THERE IS NO MERIT, THEREFORE, IN THE
RESPONDENTS' CONTENTION THAT PETITIONERS ARE PRECLUDED BY THEIR FAILURE
IN THE 1942 SUIT TO PRESS THEIR DEMAND FOR INJUNCTIVE RELIEF. 
PARTICULARLY IS THIS SO IN VIEW OF THE PUBLIC INTEREST IN VIGILANT
ENFORCEMENT OF THE ANTITRUST LAWS THROUGH THE INSTRUMENTALITY OF THE
PRIVATE TREBLE-DAMAGE ACTION.  ACCEPTANCE OF THE RESPONDENTS' NOVEL
CONTENTION WOULD IN EFFECT CONFER ON THEM A PARTIAL IMMUNITY FROM CIVIL
LIABILITY FOR FUTURE VIOLATIONS.  SUCH A RESULT IS CONSISTENT WITH
NEITHER THE ANTITRUST LAWS NOR THE DOCTRINE OF RES JUDICATA. 

WITH RESPECT TO THE FIVE DEFENDANTS WHO WERE NOT PARTIES TO THE 1942
SUIT, THERE IS YET A SECOND GROUND FOR OUR DECISION.  THE COURT BELOW
HELD THAT THEIR RELATIONSHIP TO THE OTHER DEFENDANTS WAS "CLOSE ENOUGH
TO BRING THEM ALL WITHIN THE SCOPE OF THE DOCTRINE OF RES JUDICATA." 
(FN17)  WITH THIS CONCLUSION, WE CANNOT AGREE.  WE NEED NOT STOP TO
CONSIDER THE OUTER BOUNDS OF THE RULE OF PRIVITY AND ALLIED CONCEPTS. 
(FN18)  IT IS SUFFICIENT HERE TO POINT OUT THAT THE FIVE DEFENDANTS DO
NOT FALL WITHIN THE ORTHODOX CATEGORIES OF PRIVIES; (FN19) THAT THEY
COULD NOT HAVE BEEN JOINED IN THE 1942 CASE SINCE THEY DID NOT EVEN
ENTER THE ALLEGED CONSPIRACY UNTIL AFTER THE JUDGMENT ON WHICH THEY NOW
RELY; (FN20) THAT IN ANY EVENT THERE WAS NO OBLIGATION TO JOIN THEM IN
THE 1942 CASE SINCE AS JOINT TORTFEASORS THEY WERE NOT INDISPENSABLE
PARTIES; (FN21) AND THAT THEIR LIABILITY WAS NOT "ALTOGETHER DEPENDENT
UPON THE CULPABILITY" OF THE DEFENDANTS IN THE 1942 SUIT.  (FN22) 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  REVERSED. 

FN1  "DEFENDANT NATIONAL, ILLEGALLY AND WITH INTENT TO DESTROY
PLAINTIFF'S BUSINESS, DELIBERATELY REDUCES THE RENTAL PRICE OF SAID
MOTION PICTURE TALKING TRAILERS TO EXHIBITORS IF SAID EXHIBITORS,
INCLUDING PLAINTIFF'S CUSTOMERS, AGREE BEFOREHAND TO PURCHASE OR LEASE
FOR THE EXPLOITATION OF ALL OF THEIR FILMS EXHIBITED, STANDARD
ACCESSORIES AND ADVERTISING MATERIALS DIRECTLY FROM THE DEFENDANT
NATIONAL." 

FN2  99 F. SUPP. 180, 188. 

FN3  IBID. 

FN4  211 F.2D 934. 

FN5  348 U.S. 810. 

FN6  E.G., CROMWELL V. COUNTY OF SAC, 94 U.S. 351, 352-353; UNITED
STATES V. MOSER, 266 U.S. 236, 241.  SEE ALSO RESTATEMENT, JUDGMENTS,
SECS. 47, 48, 68.  THE TERM RES JUDICATA IS USED BROADLY IN THE
RESTATEMENT TO COVER MERGER, BAR, COLLATERAL ESTOPPEL, AND DIRECT
ESTOPPEL.  ID., C. 3, INTRODUCTORY NOTE. 

FN7  211 F.2D 934, 935. 

FN8  IBID. 

FN9  ID., AT 936. 

FN10  ID., AT 936-937. 

FN11  UNITED STATES V. PARKER, 120 U.S. 89, 95; UNITED STATES V.
INTERNATIONAL BUILDING CO., 345 U.S. 502, 506. 

FN12  SEE UNITED STATES V. INTERNATIONAL BUILDING CO., SUPRA, AT
505: 

"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) 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." 

FN13  RESTATEMENT, JUDGMENTS, SEC. 62, COMMENT G. ANTITRUST
VIOLATIONS ARE EXPRESSLY MADE ABATABLE.  15 U.S.C. SEC. 26. 

FN14  RESTATEMENT, JUDGMENTS, SEC. 62, COMMENT G. COMPARE FEDERAL
TRADE COMMISSION V. RALADAM CO., 316 U.S. 149, 150-151. 

FN15  99 F. SUPP. 180, 183-184.  THE COMPLAINT IN THE 1942 SUIT
ALLEGED THAT 40% OF NATIONAL SCREEN'S BUSINESS IN STANDARD ACCESSORIES
CONSISTED OF STANDARD ACCESSORIES FOR THE MOTION PICTURES OF TWO
(PARAMOUNT AND RKO) OF THE THREE DEFENDANT PRODUCERS.  THE COMPLAINT
ALSO ALLEGED THAT 20% TO 33% OF THE PLAINTIFFS' BUSINESS CONSISTED OF
STANDARD ACCESSORIES FOR THE MOTION PICTURES OF THE THIRD DEFENDANT
PRODUCER (LOEW'S).  AS TO THE PERTINENCE OF "THE PERCENTAGE OF BUSINESS
CONTROLLED," SEE UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, 527
528.    FN16  THAT THE SAME RULE IS APPLICABLE IN EQUITY, SEE
RESTATEMENT, JUDGMENTS, SEC. 46, COMMENT B; ID., SEC. 53, COMMENT C. 

FN17  211 F.2D 934, 937. 

FN18  SEE RESTATEMENT, JUDGMENTS, C. 4. 

FN19  RESTATEMENT, JUDGMENTS, SEC. 83, COMMENT A: 

"THOSE WHO CONTROL AN ACTION ALTHOUGH NOT PARTIES TO IT  ...  ; THOSE
WHOSE INTERESTS ARE REPRESENTED BY A PARTY TO THE ACTION  ...  ;
SUCCESSORS IN INTEREST  ...  ."    FN20  COMPARE BRUSZEWSKI V. UNITED
STATES, 181 F.2D 419 (C.A. 3D CIR.), ON WHICH BOTH COURTS BELOW
RELIED.  IT SHOULD ALSO BE NOTED THAT THE BRUSZEWSKI DECISION WAS AN
APPLICATION OF COLLATERAL ESTOPPEL AND NOT RES JUDICATA AS THAT TERM IS
USED HERE. 

FN21  RESTATEMENT, JUDGMENTS, SEC. 94.  SEE BIGELOW V. OLD DOMINION
COPPER CO., 225 U.S. 111, 132. 

FN22  ID., AT 127. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




PETERS V. HOBBY 349 U.S. 331 


NO. 376.  ARGUED APRIL 19, 1955 - DECIDED JUNE 6, 1955 - REVERSED. 


DURING HIS EMPLOYMENT AS A SPECIAL CONSULTANT IN A FEDERAL AGENCY,
PETITIONER HAD BEEN TWICE CLEARED BY THE AGENCY'S LOYALTY BOARD. 
SUBSEQUENTLY, ACTING SOLELY ON ITS OWN MOTION, THE CIVIL SERVICE
COMMISSION'S LOYALTY REVIEW BOARD (ESTABLISHED UNDER EXECUTIVE ORDER
9835) DETERMINED THAT THERE WAS A REASONABLE DOUBT AS TO PETITIONER'S
LOYALTY AND NOTIFIED HIM THAT HE WAS BARRED FROM FEDERAL SERVICE FOR A
PERIOD OF THREE YEARS.  THEREAFTER PETITIONER WAS REMOVED FROM HIS
POSITION.  BY AN ACTION IN A FEDERAL DISTRICT COURT, PETITIONER
CHALLENGED THE VALIDITY OF HIS REMOVAL AND DEBARMENT FROM FEDERAL
EMPLOYMENT.  HELD: 

1.  THIS CASE CAN BE DECIDED WITHOUT REACHING CERTAIN CONSTITUTIONAL
ISSUES RAISED BY PETITIONER, STEMMING CHIEFLY FROM THE DENIAL TO
PETITIONER OF ANY OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE HIS SECRET
ACCUSERS.  PP. 337-338. 

2.  THE LOYALTY REVIEW BOARD'S ACTION WAS INVALID AS BEYOND THE
BOARD'S JURISDICTION UNDER EXECUTIVE ORDER 9835 AND WAS AN UNWARRANTED
ASSUMPTION OF POWER.  PP. 338-348. 

(A)  UNDER THE PROVISIONS OF THE EXECUTIVE ORDER, THE LOYALTY REVIEW
BOARD'S JURISDICTION TO REVIEW INDIVIDUAL CASES WAS LIMITED TO APPEALS
FROM RULINGS ADVERSE TO EMPLOYEES WHICH WERE REFERRED TO THE BOARD BY
THE EMPLOYEES OR THEIR DEPARTMENTS OR AGENCIES.  THE BOARD HAD NO
AUTHORITY TO REVIEW RULINGS FAVORABLE TO EMPLOYEES OR TO ADJUDICATE
INDIVIDUAL CASES ON ITS OWN MOTION.  PP. 339-340, 342-344. 

(B) REGULATION 14 OF THE LOYALTY REVIEW BOARD, TO THE EXTENT THAT IT
PURPORTS TO AUTHORIZE THE BOARD TO ADJUDICATE INDIVIDUAL CASES ON ITS
OWN MOTION AND DESPITE A FAVORABLE DETERMINATION BELOW, IS INVALID AS
INCONSISTENT WITH THE PROVISIONS OF EXECUTIVE ORDER 9835.  PP. 340
345. 

(C)  WHILE LOYALTY PROCEEDINGS MAY NOT INVOLVE THE IMPOSITION OF
CRIMINAL SANCTIONS, THE LIMITATION ON THE BOARD'S REVIEW POWER TO
ADVERSE DETERMINATIONS WAS IN KEEPING WITH THE DEEPLY ROOTED PRINCIPLE
OF CRIMINAL LAW THAT A VERDICT OF GUILTY IS APPEALABLE WHILE A VERDICT
OF ACQUITTAL IS NOT.  PP. 344-345. 

(D)  THE PRESIDENT'S FAILURE TO EXPRESS DISAPPROVAL OF REGULATION 14
CANNOT BE DEEMED TO CONSTITUTE ACQUIESCENCE IN IT.  PP. 345-347. 

(E)  THE ORDER OF DEBARMENT, MOREOVER, DID NOT COMPLY WITH CIVIL
SERVICE RULE V, SEC. 5.101(A), WHICH BARS AN EMPLOYEE FROM "THE
COMPETITIVE SERVICE" WITHIN THREE YEARS AFTER "A FINAL DETERMINATION"
THAT HE IS DISQUALIFIED FOR FEDERAL EMPLOYMENT ON LOYALTY GROUNDS,
BECAUSE (I) THE ORDER WAS NOT LIMITED TO THE "COMPETITIVE SERVICE" BUT
EXTENDED TO ALL FEDERAL EMPLOYMENT, AND (II) IT PURPORTED TO BECOME
EFFECTIVE BEFORE THE EMPLOYING AGENCY HAD MADE ANY "FINAL
DETERMINATION."  PP. 347-348. 

3.  PETITIONER IS ENTITLED TO A DECLARATORY JUDGMENT THAT HIS REMOVAL
AND DEBARMENT WERE INVALID AND TO AN ORDER DIRECTING THE RESPONDENT
MEMBERS OF THE CIVIL SERVICE COMMISSION TO EXPUNGE FROM ITS RECORDS (A)
THE LOYALTY REVIEW BOARD'S FINDING THAT THERE IS A REASONABLE DOUBT AS
TO PETITIONER'S LOYALTY, AND (B) ANY RULING THAT PETITIONER IS BARRED
FROM FEDERAL EMPLOYMENT BY REASON OF THAT FINDING.  PP. 348-349. 

4.  SINCE IT APPEARS THAT THE TERM OF PETITIONER'S APPOINTMENT WOULD
HAVE EXPIRED ON DECEMBER 31, 1953, WHOLLY APART FROM HIS REMOVAL ON
LOYALTY GROUNDS, HIS PRAYER FOR REINSTATEMENT CANNOT BE GRANTED.  P.
349. 

PETERS V. HOBBY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS INSTITUTED BY PETITIONER IN THE DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA.  THE PRINCIPAL RELIEF SOUGHT IS A DECLARATION
THAT PETITIONER'S REMOVAL AND DEBARMENT FROM FEDERAL EMPLOYMENT WERE
INVALID.  PRIOR TO TRIAL, THE DISTRICT COURT GRANTED THE RESPONDENTS'
MOTION FOR JUDGMENT ON THE PLEADINGS.  THE JUDGMENT WAS AFFIRMED, ONE
JUDGE DISSENTING, BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT, RELYING ON ITS DECISION IN BAILEY V. RICHARDSON, 86 U.S. APP.
D.C. 248, 182 F.2D 46, SUSTAINED HERE BY AN EQUALLY DIVIDED VOTE, 341
U.S. 918.  WE GRANTED CERTIORARI, 348 U.S. 882, BECAUSE THE CASE
APPEARED TO PRESENT THE SAME CONSTITUTIONAL QUESTION LEFT UNRESOLVED BY
THIS COURT'S ACTION IN BAILEY V. RICHARDSON, SUPRA.

                                  I. 

THE BASIC FACTS ARE UNDISPUTED.  PETITIONER IS A PROFESSOR OF
MEDICINE, SPECIALIZING IN THE STUDY OF METABOLISM, AT YALE UNIVERSITY. 
FOR SEVERAL YEARS PRIOR TO 1953, BECAUSE OF HIS EMINENCE IN THE FIELD
OF MEDICAL SCIENCE, HE WAS EMPLOYED AS A SPECIAL CONSULTANT IN THE
UNITED STATES PUBLIC HEALTH SERVICE OF THE FEDERAL SECURITY AGENCY.  ON
APRIL 10, 1953, THE FUNCTIONS OF THE FEDERAL SECURITY AGENCY WERE
TRANSFERRED TO THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, HEADED
BY RESPONDENT HOBBY.  PETITIONER'S DUTIES REQUIRED HIS PRESENCE IN
WASHINGTON FROM FOUR TO TEN DAYS EACH YEAR, WHEN CALLED UPON BY THE
SURGEON GENERAL, TO RENDER ADVICE CONCERNING PROPOSALS TO GRANT FEDERAL
ASSISTANCE TO VARIOUS MEDICAL RESEARCH INSTITUTIONS.  THIS WORK WAS NOT
OF A CONFIDENTIAL OR SENSITIVE CHARACTER AND DID NOT ENTAIL ACCESS TO
CLASSIFIED MATERIAL.  PETITIONER WAS COMPENSATED AT SPECIFIED PER DIEM
RATE FOR DAYS ACTUALLY WORKED.  AT THE TIME OF HIS REMOVAL, PETITIONER
WAS EMPLOYED UNDER AN APPOINTMENT EXPIRING ON DECEMBER 31, 1953. 

ON MARCH 21, 1947, EXECUTIVE ORDER 9835 WAS ISSUED BY THE PRESIDENT. 
(FN1)  IT PROVIDED THAT THE HEAD OF EACH DEPARTMENT AND AGENCY IN THE
EXECUTIVE BRANCH OF THE GOVERNMENT "SHALL BE PERSONALLY RESPONSIBLE FOR
AN EFFECTIVE PROGRAM TO ASSURE THAT DISLOYAL CIVILIAN OFFICERS OR
EMPLOYEES ARE NOT RETAINED IN EMPLOYMENT IN HIS DEPARTMENT OR AGENCY." 
TOWARD THAT END, THE ORDER DIRECTED THE ESTABLISHMENT WITHIN EACH
DEPARTMENT OR AGENCY OF ONE OR MORE LOYALTY BOARDS "FOR THE PURPOSE OF
HEARING LOYALTY CASES ARISING WITHIN SUCH DEPARTMENT OR AGENCY AND
MAKING RECOMMENDATIONS WITH RESPECT TO THE REMOVAL OF ANY OFFICER OR
EMPLOYEE  ...  ON GROUNDS RELATING TO LOYALTY  ...  ."  THE ORDER ALSO
PROVIDED FOR THE ESTABLISHMENT OF A CENTRAL LOYALTY REVIEW BOARD IN THE
CIVIL SERVICE COMMISSION.  THE BOARD, IN ADDITION TO VARIOUS
SUPERVISORY FUNCTIONS, WAS AUTHORIZED "TO REVIEW CASES INVOLVING
PERSONS RECOMMENDED FOR DISMISSAL  ...  BY THE LOYALTY BOARD OF ANY
DEPARTMENT OR AGENCY  ...  ."  THE STANDARD FOR REMOVAL PRESCRIBED BY
THE ORDER WAS WHETHER, "ON ALL THE EVIDENCE, REASONABLE GROUNDS EXIST
FOR BELIEF THAT THE PERSON INVOLVED IS DISLOYAL TO THE GOVERNMENT OF
THE UNITED STATES."  THIS STANDARD WAS AMENDED ON APRIL 28, 1951. 
(FN2)  AS AMENDED, THE STANDARD TO BE APPLIED WAS WHETHER, "ON ALL THE
EVIDENCE, THERE IS A REASONABLE DOUBT AS TO THE LOYALTY OF THE PERSON
INVOLVED TO THE GOVERNMENT OF THE UNITED STATES." 

IN JANUARY 1949, JOSEPH E. MCELVAIN, CHAIRMAN OF THE BOARD OF INQUIRY
ON EMPLOYEE LOYALTY OF THE FEDERAL SECURITY AGENCY, NOTIFIED PETITIONER
THAT DEROGATORY INFORMATION RELATING TO HIS LOYALTY HAD BEEN RECEIVED. 
ACCOMPANYING MCELVAIN'S LETTER WAS A DETAILED INTERROGATORY RELATING TO
PETITIONER'S ASSOCIATIONS AND AFFILIATIONS.  PETITIONER PROMPTLY
COMPLETED THE FORM AND RETURNED IT.  SHORTLY THEREAFTER, MCELVAIN
ADVISED PETITIONER THAT THE AGENCY BOARD HAD DETERMINED THAT NO
REASONABLE GROUNDS EXISTED FOR BELIEF THAT PETITIONER WAS DISLOYAL. 

IN MAY 1951, FOLLOWING THE AMENDMENT OF THE REMOVAL STANDARD
PRESCRIBED BY EXECUTIVE ORDER 9835, THE EXECUTIVE SECRETARY OF THE
LOYALTY REVIEW BOARD ADVISED MCELVAIN THAT PETITIONER'S CASE SHOULD BE
REOPENED AND READJUDICATED PURSUANT TO THE AMENDED STANDARD.  THREE
MONTHS LATER, THE ACTING CHAIRMAN OF THE LOYALTY REVIEW BOARD INFORMED
MCELVAIN THAT A PANEL OF THE LOYALTY REVIEW BOARD HAD CONSIDERED
PETITIONER'S CASE AND HAD RECOMMENDED THAT IT BE REMANDED TO THE AGENCY
BOARD FOR A HEARING.  ACTING ON THE LOYALTY REVIEW BOARD'S
RECOMMENDATION, MCELVAIN SENT PETITIONER A LETTER OF CHARGES.  SIXTEEN
CHARGES WERE SPECIFIED, RELATING TO ALLEGED MEMBERSHIP IN THE COMMUNIST
PARTY, SPONSORSHIP OF CERTAIN PETITIONS, AFFILIATION WITH VARIOUS
ORGANIZATIONS, AND ALLEGED ASSOCIATION WITH COMMUNISTS AND COMMUNIST
SYMPATHIZERS.  IN HIS REPLY, MADE UNDER OATH, PETITIONER DENIED THAT HE
HAD EVER BEEN A MEMBER OF THE COMMUNIST PARTY AND SET FORTH INFORMATION
CONCERNING THE OTHER CHARGES. 

ON APRIL 1 AND 2, 1952, THE AGENCY BOARD CONDUCTED A HEARING ON
PETITIONER'S CASE IN NEW HAVEN, CONNECTICUT.  THE SOURCES OF THE
INFORMATION AS TO THE FACTS BEARING ON THE CHARGES WERE NOT IDENTIFIED
OR MADE AVAILABLE TO PETITIONER'S COUNSEL FOR CROSS-EXAMINATION.  THE
IDENTITY OF ONE OR MORE OF THE INFORMANTS FURNISHING SUCH INFORMATION,
BUT NOT OF ALL THE INFORMANTS, WAS KNOWN TO THE BOARD.  THE ONLY
EVIDENCE ADDUCED AT THE HEARING WAS PRESENTED BY PETITIONER.  HE
TESTIFIED UNDER OATH THAT HE HAD NEVER BEEN A MEMBER OF THE COMMUNIST
PARTY AND ALSO TESTIFIED CONCERNING THE OTHER CHARGES AGAINST HIM.  HE
DID NOT REFUSE TO ANSWER ANY QUESTION DIRECTED TO HIM.  PETITIONER'S
TESTIMONY WAS SUPPORTED BY THE TESTIMONY OF EIGHTEEN OTHER WITNESSES
AND THE AFFIDAVITS AND STATEMENTS OF SOME FORTY ADDITIONAL PERSONS.  ON
MAY 23, 1952, MCELVAIN NOTIFIED PETITIONER THAT THE AGENCY BOARD HAD
DETERMINED THAT, ON ALL THE EVIDENCE, THERE WAS NO REASONABLE DOUBT AS
TO PETITIONER'S LOYALTY. 

THEREAFTER, ON APRIL 6, 1953, PETITIONER WAS ADVISED BY THE LOYALTY
REVIEW BOARD THAT IT HAD DETERMINED TO CONDUCT A "POST-AUDIT" OF THE
AGENCY BOARD'S DETERMINATION AND, TO THIS END, "HOLD A HEARING AND
REACH ITS OWN DECISION."  (FN3)  THE HEARING WAS HELD ON MAY 12, 1953,
IN NEW HAVEN, BEFORE A PANEL OF THE BOARD CONSISTING OF RESPONDENTS
HESSEY, AMEN, AND KING.  ONCE AGAIN, AS AT THE PREVIOUS HEARING, THE
ONLY EVIDENCE ADDUCED WAS PRESENTED BY PETITIONER.  IN HIS OWN
TESTIMONY, PETITIONER DENIED MEMBERSHIP IN THE COMMUNIST PARTY,
DISCUSSED HIS POLITICAL BELIEFS AND HIS MOTIVES FOR ENGAGING IN THE
ACTIVITIES AND ASSOCIATIONS WHICH WERE THE SUBJECT OF THE CHARGES, AND
ANSWERED ALL QUESTIONS PUT TO HIM BY THE BOARD.  IN SUPPORT OF
PETITIONER'S TESTIMONY, FIVE WITNESSES STATED THEIR LONG ACQUAINTANCE
WITH PETITIONER AND THEIR FIRM CONVICTION OF PETITIONER'S LOYALTY. 
(FN4) IN ADDITION TO THIS EVIDENCE, THE RECORD BEFORE THE BOARD
CONTAINED INFORMATION SUPPLIED BY INFORMANTS WHOSE IDENTITY WAS NOT
DISCLOSED TO PETITIONER.  THE IDENTITY OF ONE OR MORE, BUT NOT ALL, OF
THESE INFORMANTS WAS KNOWN TO THE BOARD.  THE INFORMATION GIVEN BY SUCH
INFORMANTS HAD NOT BEEN GIVEN UNDER OATH.  THE RECORD ALSO CONTAINED
THE EVIDENCE ADDUCED BY PETITIONER AT THE PREVIOUS HEARING.  ON THIS
RECORD, THE BOARD DETERMINED THAT "ON ALL THE EVIDENCE, THERE IS A
REASONABLE DOUBT AS TO DR. PETERS' LOYALTY TO THE GOVERNMENT OF THE
UNITED STATES." 

BY LETTER OF MAY 22, 1953, THE CHAIRMAN OF THE BOARD ADVISED
PETITIONER OF THE BOARD'S FINDING.  THE LETTER FURTHER STATED THAT
RESPONDENT HOBBY HAD BEEN NOTIFIED OF THE DECISION AND THAT PETITIONER
HAD "BEEN BARRED FROM THE FEDERAL SERVICE FOR A PERIOD OF THREE YEARS
FROM MAY 18, 1953, AND ANY AND ALL PENDING APPLICATIONS OR EXISTING
ELIGIBILITIES ARE CANCELLED."  THE ORDER OF DEBARMENT WAS MADE BY THE
BOARD ON BEHALF OF THE CIVIL SERVICE COMMISSION, COMPOSED OF
RESPONDENTS YOUNG, MOORE, AND LAWTON.  (FN5)  FOLLOWING HIS REMOVAL AND
AFTER AN UNSUCCESSFUL ATTEMPT TO OBTAIN A REHEARING, PETITIONER BROUGHT
THE INSTANT SUIT, NAMING EACH OF THE RESPONDENTS AS A DEFENDANT. 

                                        II. 

IN HIS COMPLAINT, PETITIONER CONTENDS THAT THE ACTION TAKEN AGAINST
HIM WAS "IN VIOLATION OF EXECUTIVE ORDER 9835 AND THE CONSTITUTION OF
THE UNITED STATES  ...  ."  IN SUPPORT OF HIS CONTENTION THAT THE
ACTION VIOLATED THE EXECUTIVE ORDER, HE MAKES THE ALLEGATION, AMONG
OTHERS, THAT THE LOYALTY REVIEW BOARD "EXERCISED POWER BEYOND ITS POWER
'TO MAKE ADVISORY RECOMMENDATIONS  ...  TO THE HEAD OF THE  ...
AGENCY', AS DEFINED BY EXECUTIVE ORDER 9835, PART III, SEC. 1A  ...
."  ON THE CONSTITUTIONAL LEVEL, PETITIONER COMPLAINS CHIEFLY OF THE
DENIAL OF ANY OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE HIS SECRET
ACCUSERS.  HE ALLEGES THAT HIS REMOVAL AND DEBARMENT DEPRIVED HIM "OF
LIBERTY AND PROPERTY WITHOUT DUE PROCESS OF LAW IN THAT THEY BRANDED
HIM AS A PERSON DISLOYAL TO HIS COUNTRY, ARBITRARILY, WITHOUT A BASIS
IN FACT, AND WITHOUT A FAIR PROCEDURE AND HEARING."  IN ADDITION, HE
ALLEGES THAT "THE IMPOSITION OF THE PENALTY OF INELIGIBILITY FOR
GOVERNMENT SERVICE CONSTITUTED A VIOLATION OF THE PROHIBITION AGAINST
BILLS OF ATTAINDER AND EX POST FACTO LAWS BY PUNISHING THE PLAINTIFF BY
DECLARING HIM INELIGIBLE TO SERVE THE GOVERNMENT WITHOUT A JUDICIAL
TRIAL OR A FAIR ADMINISTRATIVE HEARING  ...  ."  FINALLY, PETITIONER
ALLEGES THAT HIS REMOVAL AND DEBARMENT, SOLELY ON THE BASIS OF HIS
POLITICAL OPINIONS, VIOLATED HIS RIGHT TO FREEDOM OF SPEECH. 

IN THIS COURT, PETITIONER URGES US TO DECIDE THE CASE ON THE
CONSTITUTIONAL ISSUES.  THESE ISSUES, IF REACHED BY THE COURT, WOULD
OBVIOUSLY PRESENT SERIOUS AND FAR-REACHING PROBLEMS IN RECONCILING
FUNDAMENTAL CONSTITUTIONAL GUARANTEES WITH THE PROCEDURES USED TO
DETERMINE THE LOYALTY OF GOVERNMENT PERSONNEL.  COMPARE WIEMAN V.
UPDEGRAFF, 344 U.S. 183; UNITED STATES V. LOVETT, 328 U.S. 303; JOINT
ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123.  AND NOTE THIS
COURT'S DIVISION IN BAILEY V. RICHARDSON, SUPRA.  WE FIND, HOWEVER,
THAT THE CASE CAN BE DECIDED WITHOUT REACHING THE CONSTITUTIONAL
ISSUES. 

FROM A VERY EARLY DATE, THIS COURT HAS DECLINED TO ANTICIPATE A
QUESTION OF CONSTITUTIONAL LAW IN ADVANCE OF THE NECESSITY OF DECIDING
IT.  CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11 PET. 420, 553.  SEE ALMA
MOTOR CO. V. TIMKEN-DETROIT AXLE CO., 329 U.S. 129, 136.  APPLYING THIS
RULE TO THE INSTANT CASE, WE MUST AT THE OUTSET DETERMINE WHETHER
PETITIONER'S REMOVAL AND DEBARMENT WERE EFFECTED IN ACCORD WITH
EXECUTIVE ORDER 9835.  ON CONSIDERATION OF THIS QUESTION, WE CONCLUDE
THAT THE LOYALTY REVIEW BOARD'S ACTION WAS SO PATENTLY IN VIOLATION OF
THE EXECUTIVE ORDER - IN FACT, BEYOND THE BOARD'S DELEGATED
JURISDICTION UNDER THE ORDER - THAT THE CONSTITUTIONALITY OF THE ORDER
ITSELF DOES NOT COME INTO ISSUE.  (FN6)

                               III. 

THE POWER OF THE LOYALTY REVIEW BOARD TO ADJUDICATE INDIVIDUAL CASES
IS SET FORTH SPECIFICALLY IN SEC. 1A OF PART III OF THE ORDER: 

"THE BOARD SHALL HAVE AUTHORITY TO REVIEW CASES INVOLVING PERSONS
RECOMMENDED FOR DISMISSAL ON GROUNDS RELATING TO LOYALTY BY THE LOYALTY
BOARD OF ANY DEPARTMENT OR AGENCY AND TO MAKE ADVISORY RECOMMENDATIONS
THEREON TO THE HEAD OF THE EMPLOYING DEPARTMENT OR AGENCY.  SUCH CASES
MAY BE REFERRED TO THE BOARD EITHER BY THE EMPLOYING DEPARTMENT OR
AGENCY, OR BY THE OFFICER OR EMPLOYEE CONCERNED." 

SIMILARLY, SEC. 3 OF PART II, WHICH PRESCRIBES THE PROCEDURES TO BE
FOLLOWED IN LOYALTY CASES UNDER THE ORDER, PROVIDES: 

"A RECOMMENDATION OF REMOVAL BY A LOYALTY BOARD SHALL BE SUBJECT TO
APPEAL BY THE OFFICER OR EMPLOYEE AFFECTED, PRIOR TO HIS REMOVAL, TO
THE HEAD OF THE EMPLOYING DEPARTMENT OR AGENCY  ...  AND THE DECISION
OF THE DEPARTMENT OR AGENCY CONCERNED SHALL BE SUBJECT TO APPEAL TO THE
CIVIL SERVICE COMMISSION'S LOYALTY REVIEW BOARD, HEREINAFTER PROVIDED
FOR, FOR AN ADVISORY RECOMMENDATION." 

THE AUTHORITY THUS CONFERRED ON THE LOYALTY REVIEW BOARD WAS LIMITED
TO "CASES INVOLVING PERSONS RECOMMENDED FOR DISMISSAL ON GROUNDS
RELATING TO LOYALTY BY THE LOYALTY BOARD OF ANY DEPARTMENT OR AGENCY
...  ."  AND, EVEN AS TO THESE CASES, THE LOYALTY REVIEW BOARD WAS
DENIED ANY POWER TO UNDERTAKE REVIEW ON ITS OWN MOTION; ONLY THE
EMPLOYEE RECOMMENDED FOR DISMISSAL, OR HIS DEPARTMENT OR AGENCY, COULD
REFER SUCH A CASE TO THE LOYALTY REVIEW BOARD. 

IN PETITIONER'S CASE, THE BOARD FAILED TO RESPECT EITHER OF THESE
LIMITATIONS.  PETITIONER HAD BEEN TWICE CLEARED BY THE AGENCY BOARD AND
HENCE DID NOT FALL IN THE CATEGORY OF "PERSONS RECOMMENDED FOR
DISMISSAL ON GROUNDS RELATING TO LOYALTY BY THE LOYALTY BOARD OF ANY
DEPARTMENT OR AGENCY."  MOREOVER, PETITIONER'S CASE WAS NEVER REFERRED
TO THE LOYALTY REVIEW BOARD BY PETITIONER OR THE AGENCY.  INSTEAD, THE
LOYALTY REVIEW BOARD, ACTING SOLELY ON ITS OWN MOTION, UNDERTOOK TO
"HOLD A HEARING AND REACH ITS OWN DECISION."  ON BOTH GROUNDS, THE
BOARD'S ACTION WAS PLAINLY BEYOND ITS JURISDICTION UNLESS SUCH ACTION
WAS AUTHORIZED BY SOME OTHER PROVISION IN THE ORDER.    SECTION 1 OF
PART III ALSO PROVIDES: 

"B.  THE BOARD SHALL MAKE RULES AND REGULATIONS, NOT INCONSISTENT
WITH THE PROVISIONS OF THIS ORDER, DEEMED NECESSARY TO IMPLEMENT
STATUTES AND EXECUTIVE ORDERS RELATING TO EMPLOYEE LOYALTY. 

"C.  THE LOYALTY REVIEW BOARD SHALL ALSO: 

"(1)  ADVISE ALL DEPARTMENTS AND AGENCIES ON ALL PROBLEMS RELATING TO
EMPLOYEE LOYALTY. 

"(2)  DISSEMINATE INFORMATION PERTINENT TO EMPLOYEE LOYALTY
PROGRAMS. 

"(3)  COORDINATE THE EMPLOYEE LOYALTY POLICIES AND PROCEDURES OF THE
SEVERAL DEPARTMENTS AND AGENCIES.    "(4)  MAKE REPORTS AND SUBMIT
RECOMMENDATIONS TO THE CIVIL SERVICE COMMISSION FOR TRANSMISSION TO THE
PRESIDENT FROM TIME TO TIME AS MAY BE NECESSARY TO THE MAINTENANCE OF
THE EMPLOYEE LOYALTY PROGRAM." 

ACTING UNDER SUBSECTION (B), THE BOARD PROMULGATED DETAILED
REGULATIONS, EFFECTIVE DECEMBER 14, 1947, ELABORATING ITS POWERS UNDER
THE ORDER.  (FN7)  THE REGULATIONS DISTINGUISHED BETWEEN TWO TYPES OF
PROCEEDINGS IN INDIVIDUAL CASES.  THE FIRST DEALT WITH APPEALS FROM
ADVERSE DECISIONS.  (FN8)  THE SECOND, DESCRIBED IN REGULATION 14,
CLAIMED FOR THE BOARD A VERY DIFFERENT FUNCTION.  (FN9)  AS AMENDED ON
JANUARY 22, 1952, REGULATION 14 PROVIDED:  (FN10) 

"POST-AUDIT AND REVIEW OF FILES.  (A)  THE BOARD, OR AN EXECUTIVE
COMMITTEE OF THE BOARD, SHALL, AS DEEMED NECESSARY FROM TIME TO TIME,
CAUSE POST-AUDITS TO BE MADE OF THE FILES ON LOYALTY CASES DECIDED BY
THE EMPLOYING DEPARTMENT OR AGENCY, OR BY A REGIONAL LOYALTY BOARD. 

"(B)  THE BOARD OR AN EXECUTIVE COMMITTEE OF THE BOARD, OR A DULY
CONSTITUTED PANEL OF THE BOARD, SHALL HAVE THE RIGHT, IN ITS DISCRETION
TO CALL UP FOR REVIEW ANY CASE DECIDED BY ANY DEPARTMENT OR AGENCY
LOYALTY BOARD OR REGIONAL LOYALTY BOARD, OR BY ANY HEAD OF AN EMPLOYING
DEPARTMENT OR AGENCY, EVEN THOUGH NO APPEAL HAS BEEN TAKEN.  ANY SUCH
REVIEW SHALL BE MADE BY A PANEL OF THE BOARD, AND THE PANEL, WHETHER OR
NOT A HEARING HAS BEEN HELD IN THE CASE, MAY AFFIRM THE PROCEDURAL
METHOD FOLLOWED AND THE ACTION TAKEN, OR REMAND THE CASE WITH
APPROPRIATE INSTRUCTIONS TO THE AGENCY OR REGIONAL LOYALTY BOARD
CONCERNED FOR HEARING OR FOR SUCH FURTHER ACTION OR PROCEDURE AS THE
PANEL MAY DETERMINE. 

"(C)  IF A PANEL REVIEWS A RECORD ON POST-AUDIT AND REACHES THE
CONCLUSION THAT THE DETERMINATION MADE BELOW DOES NOT FULLY RECOGNIZE
THAT IT IS OF 'VITAL IMPORTANCE' AS SET FORTH IN EXECUTIVE ORDER 9835
'THAT PERSONS EMPLOYED IN THE FEDERAL SERVICE BE OF COMPLETE AND
UNSWERVING LOYALTY TO THE UNITED STATES,' THEN THE PANEL MAY CALL UP
THE CASE FOR A HEARING, AND AFTER SUCH HEARING MAY AFFIRM OR REVERSE
THE ORIGINAL DETERMINATION OR DECISION.  NEVERTHELESS, IT MUST ALWAYS
BE REMEMBERED THAT WHILE IT IS IMPORTANT THAT MAXIMUM PROTECTION BE
AFFORDED THE UNITED STATES AGAINST INFILTRATION OF DISLOYAL PERSONS
INTO THE RANKS OF ITS EMPLOYEES, EQUAL PROTECTION MUST BE AFFORDED
LOYAL EMPLOYEES FROM UNFOUNDED ACCUSATIONS OF DISLOYALTY." 

IN UNDERTAKING TO "HOLD A HEARING AND REACH ITS OWN DECISION" IN
PETITIONER'S CASE, THE BOARD RELIED ON REGULATION 14 AS THE SOURCE OF
ITS AUTHORITY. 

THIS REGULATION, HOWEVER, IS VALID ONLY IF IT IS "NOT INCONSISTENT
WITH THE PROVISIONS OF THIS ORDER."  THE BOARD'S "POST-AUDIT" FUNCTION,
WHEN USED TO SURVEY THE OPERATION OF THE LOYALTY PROGRAM AND TO INSURE
A UNIFORMITY OF PROCEDURES IN THE VARIOUS LOYALTY BOARDS, MIGHT WELL BE
JUSTIFIED UNDER THE BOARD'S POWERS TO "ADVISE ALL DEPARTMENTS AND
AGENCIES ON ALL PROBLEMS RELATING TO EMPLOYEE LOYALTY" AND "COORDINATE
THE EMPLOYEE LOYALTY POLICIES AND PROCEDURES OF THE SEVERAL DEPARTMENTS
AND AGENCIES."  BUT THE REGULATION DID NOT RESTRICT THE "POST-AUDIT"
FUNCTION TO ADVICE AND COORDINATION.  RATHER, IT PURPORTED TO ALLOW THE
BOARD "TO CALL UP FOR REVIEW ANY CASE  ... EVEN THOUGH NO APPEAL HAS
BEEN TAKEN" AND TO HOLD A NEW HEARING AND "AFTER SUCH HEARING (TO)
AFFIRM OR REVERSE THE ORIGINAL DETERMINATION OR DECISION."  THE BOARD
THUS SOUGHT TO DO BY REGULATION PRECISELY WHAT IT WAS NOT PERMITTED TO
DO UNDER THE ORDER.  ALTHOUGH THE ORDER LIMITED THE BOARD'S
JURISDICTION TO APPEALS FROM ADVERSE RULINGS, THE REGULATION ASSERTED
AUTHORITY OVER APPEALS FROM FAVORABLE RULINGS AS WELL; AND ALTHOUGH THE
ORDER LIMITED THE BOARD'S JURISDICTION TO APPEALS REFERRED TO THE BOARD
BY THE EMPLOYEE OR HIS DEPARTMENT OR AGENCY, THE REGULATION ASSERTED
AUTHORITY IN THE BOARD TO ADJUDICATE INDIVIDUAL CASES ON ITS OWN
MOTION.  TO THIS EXTENT THE REGULATION MUST FALL.  SEE, E.G., ADDISON
V. HOLLY HILL FRUIT PRODUCTS, 322 U.S. 607, 616-618, AND FEDERAL
COMMUNICATIONS COMMISSION V. AMERICAN BROADCASTING CO., 347 U.S. 284,
296-297. 

OUR INTERPRETATION OF THE LANGUAGE OF THE ORDER IS CONFIRMED BY THE
REPORT OF THE PRESIDENT'S TEMPORARY COMMISSION ON EMPLOYEE LOYALTY,
RELEASED BY THE PRESIDENT ON MARCH 22, 1947, SIMULTANEOUSLY WITH THE
ORDER.  FOUR MONTHS BEFORE, THE COMMISSION HAD BEEN ESTABLISHED "TO
INQUIRE INTO THE STANDARDS, PROCEDURES, AND ORGANIZATIONAL PROVISIONS
FOR (A) THE INVESTIGATION OF PERSONS WHO ARE EMPLOYED BY THE UNITED
STATES GOVERNMENT OR ARE APPLICANTS FOR SUCH EMPLOYMENT, AND (B) THE
REMOVAL OR DISQUALIFICATION FROM EMPLOYMENT OF ANY DISLOYAL OR
SUBVERSIVE PERSON."  (FN11)  IN CONDUCTING ITS INVESTIGATION, THE
COMMISSION SOUGHT SUGGESTIONS FROM 50 SELECTED GOVERNMENT AGENCIES. 
THE REPLIES REVEALED GENERAL AGREEMENT "THAT THE EMPLOYING AGENCY BE
RESPONSIBLE FOR THE REMOVAL OF ITS OWN EMPLOYEES."  (FN12)  BUT A
SUBSTANTIAL NUMBER OF THE REPLIES INDICATED:  (FN13) 

"(1) THAT THERE SHOULD BE ESTABLISHED AN INDEPENDENT OVER-ALL
CENTRALIZED AUTHORITY ACTING SOLELY FOR AND ON BEHALF OF THE PRESIDENT
IN THE MATTER OF THE REMOVAL OF DISLOYAL EMPLOYEES; OR (2) THAT THE
ORIGINAL HEARING IN LOYALTY CASES SHOULD BE WITHIN THE EMPLOYING
AGENCY, SUBJECT TO A RIGHT OF APPEAL TO A CENTRALIZED AGENCY
ESTABLISHED WITH A POWER TO REVIEW DE NOVO; OR (3) THAT THE OVERALL
AGENCY BE ESTABLISHED WITH ADVISORY POWERS ONLY." 

OF THESE THREE PROPOSALS, THE FIRST WAS FLATLY REJECTED BY THE
COMMISSION, WHICH INSTEAD URGED THE ESTABLISHMENT OF A CENTRALIZED
AGENCY COMBINING ELEMENTS OF THE SECOND AND THIRD.  THE COMMISSION
THOUGHT IT "IMPERATIVE THAT THE HEAD OF EACH DEPARTMENT OR AGENCY BE
SOLELY RESPONSIBLE FOR HIS OWN LOYALTY PROGRAM."  (FN14)  ON THE OTHER
HAND, "SO THAT THE LOYALTY PROCEDURES OPERATIVE IN EACH OF THE
DEPARTMENTS AND AGENCIES MAY BE PROPERLY COORDINATED  ...  ," THE
COMMISSION RECOGNIZED "THAT A CENTRAL REVIEW BOARD SHOULD BE CREATED
WITH DEFINITE ADVISORY RESPONSIBILITIES IN CONNECTION WITH THE LOYALTY
PROGRAM."  (FN15)  THESE "ADVISORY RESPONSIBILITIES" WERE ENVISAGED AS
"SIMILAR TO THOSE OF A CLEARING HOUSE."  (FN16)  BUT, IN ADDITION, THE
BOARD WAS TO BE AUTHORIZED TO REVIEW DECISIONS ADVERSE TO EMPLOYEES,
WHEN REFERRED TO THE BOARD BY THE EMPLOYEE OR THE EMPLOYING AGENCY. 
(FN17) NOWHERE IN THE REPORT WAS IT EVEN REMOTELY SUGGESTED THAT THE
BOARD WAS TO HAVE GENERAL JURISDICTION TO ADJUDICATE INDIVIDUAL CASES;
ON THE CONTRARY, AS ALREADY NOTED, THE COMMISSION EXPRESSLY DISAPPROVED
SUCH A PROPOSAL.  THE COMMISSION'S RECOMMENDATIONS, WITH ONLY SLIGHT
CHANGES IN LANGUAGE, WERE ADOPTED IN THE PROVISIONS OF THE ORDER
DESIGNATING THE FUNCTIONS OF THE LOYALTY REVIEW BOARD.  (FN18) 

WHILE THE LOYALTY PROCEEDINGS MAY NOT INVOLVE THE IMPOSITION OF
CRIMINAL SANCTIONS, THE LIMITATION ON THE BOARD'S REVIEW POWER TO
ADVERSE DETERMINATIONS WAS IN KEEPING WITH THE DEEPLY ROOTED PRINCIPLE
OF CRIMINAL LAW THAT A VERDICT OF GUILTY IS APPEALABLE WHILE A VERDICT
OF ACQUITTAL IS NOT.  (FN19)  THIS SAFEGUARD WAS ONE OF THE FEW, AND
PERHAPS ONE OF THE MOST IMPORTANT, AFFORDED AN ACCUSED EMPLOYEE UNDER
THE ORDER.  ITS EFFECT WAS TO LEAVE THE INITIAL DETERMINATION OF HIS
LOYALTY TO HIS CO-WORKERS IN THE DEPARTMENT - TO HIS PEERS, AS IT WERE
WHO KNEW MOST ABOUT HIS CHARACTER AND HIS ACTIONS AND HIS DUTIES.  HE
WAS THUS ASSURED THAT HIS FATE WOULD NOT BE DECIDED BY POLITICAL
APPOINTEES WHO PERHAPS MIGHT BE MORE VULNERABLE TO THE PRESSURES OF
HEATED PUBLIC OPINION.  TO SANCTION THE ABROGATION OF THIS SAFEGUARD
THROUGH REGULATION 14, IN THE FACE OF THE ORDER'S LANGUAGE AND THE
COMMISSION'S REPORT, WOULD BE TO SANCTION ADMINISTRATIVE LAWLESSNESS. 
AGENCIES, WHETHER CREATED BY STATUTE OR EXECUTIVE ORDER, MUST OF COURSE
BE FREE TO GIVE REASONABLE SCOPE TO THE TERMS CONFERRING THEIR
AUTHORITY.  BUT THEY ARE NOT FREE TO IGNORE PLAIN LIMITATIONS ON THAT
AUTHORITY.  COMPARE UNITED STATES V. WICKERSHAM, 201 U.S. 390, 398. 

IT IS URGED, HOWEVER, THAT THE PRESIDENT'S FAILURE TO EXPRESS HIS
DISAPPROVAL OF REGULATION 14 MUST BE DEEMED TO CONSTITUTE ACQUIESCENCE
IN IT.  FROM THIS, IT IS CONTENDED THAT THE PRESIDENT THUS IMPLIEDLY
EXPANDED THE LOYALTY REVIEW BOARD'S POWERS UNDER THE ORDER.  WE CANNOT
INDULGE IN SUCH FANCIFUL SPECULATION.  NOTHING SHORT OF EXPLICIT
PRESIDENTIAL ACTION COULD JUSTIFY A CONCLUSION THAT THE LIMITATIONS ON
THE BOARD'S POWER HAD BEEN ELIMINATED.  NO SUCH ACTION BY THE PRESIDENT
HAS BEEN BROUGHT TO OUR ATTENTION.  THERE IS, IN FACT, NO EVIDENCE THAT
THE PRESIDENT EVEN KNEW OF THE BOARD'S PRACTICE PRIOR TO APRIL 27,
1953, THREE WEEKS AFTER THE BOARD HAD NOTIFIED PETITIONER OF ITS
INTENTION TO "HOLD A HEARING AND REACH ITS OWN DECISION."  AND
KNOWLEDGE OF THE PRACTICE CAN HARDLY BE IMPUTED TO HIM IN VIEW OF THE
RELATIVELY SMALL NUMBER OF CASES - ONLY 20 - IN WHICH THE BOARD
REVERSED FAVORABLE DETERMINATIONS OVER ITS 6-YEAR LIFE.  (FN20) ON
APRIL 27, 1953, THE PRESIDENT ISSUED EXECUTIVE ORDER 10450, REVOKING
EXECUTIVE ORDER 9835 AND ESTABLISHING A NEW LOYALTY PROGRAM.  (FN21)
EXECUTIVE ORDER 10450 BY ITS OWN TERMS DID NOT TAKE EFFECT UNTIL 30
DAYS LATER ON MAY 27, 1953.  ALTHOUGH PETITIONER'S CASE WAS HEARD AND
DETERMINED BY THE LOYALTY REVIEW BOARD DURING THIS 30-DAY PERIOD AND
HENCE WAS NOT SUBJECT TO EXECUTIVE ORDER 10450, THE GOVERNMENT CONTENDS
THAT SEC. 11 EVIDENCES KNOWLEDGE AND APPROVAL OF REGULATION 14.  (FN22)
REGULATION 14 MIGHT BE PENDING ON THE EFFECTIVE DATE AND AUTHORIZE
THEIR DETERMINATION THEREAFTER.  AND, EVEN AS TO THESE CASES, SEC. 11
DID NOT AUTHORIZE THE BOARD TO RECOMMEND DISMISSAL; AT MOST THE BOARD
COULD REMAND THE CASES TO THE DEPARTMENTS OR AGENCIES FOR
RECONSIDERATION.  WITH RESPECT TO CASES DETERMINED PRIOR TO THE
EFFECTIVE DATE - SUCH AS PETITIONER'S - SEC.  11 SURELY AFFORDS NO
BASIS FOR DIVINING A PRESIDENTIAL INTENTION TO AUTHORIZE THE BOARD TO
DISREGARD ITS PREVIOUSLY DEFINED JURISDICTIONAL BOUNDARIES. 
PARTICULARLY IS THIS SO WHERE, AS HERE, SUBSTANTIAL RIGHTS AFFECTING
THE LIVES AND PROPERTY OF CITIZENS ARE AT STAKE.  THIS COURT HAS
RECOGNIZED THAT "A BADGE OF INFAMY" ATTACHES TO A PUBLIC EMPLOYEE FOUND
DISLOYAL.  WIEMAN V. UPDEGRAFF, 344 U.S. 183, 191.  THE POWER ASSERTED
BY THE BOARD TO IMPOSE SUCH A BADGE ON PETITIONER CANNOT BE SUPPORTED
ON SO TENUOUS A THEORY AS THAT PRESSED UPON US. 

NOR WAS THE ADJUDICATION OF PETITIONER'S CASE, ON ITS OWN MOTION AND
DESPITE A FAVORABLE DETERMINATION BY THE AGENCY BOARD, THE ONLY
UNWARRANTED ASSUMPTION OF POWER BY THE LOYALTY REVIEW BOARD.  IN
CANCELLING PETITIONER'S ELIGIBILITY FROM "THE FEDERAL SERVICE" FOR A
PERIOD OF THREE YEARS, THE BOARD PURPORTED TO ACT UNDER CIVIL SERVICE
RULE V, SEC. 5.101(A), WHICH BARS AN EMPLOYEE FROM "THE COMPETITIVE
SERVICE WITHIN 3 YEARS AFTER A FINAL DETERMINATION THAT HE IS
DISQUALIFIED FOR FEDERAL EMPLOYMENT BECAUSE OF A REASONABLE DOUBT AS TO
HIS LOYALTY  ...  ."  (FN23)  THE BOARD'S ORDER OF DEBARMENT, HOWEVER,
WAS NOT LIMITED TO "THE COMPETITIVE SERVICE" BUT EXTENDED TO ALL
FEDERAL EMPLOYMENT.  (FN24)  AND ALTHOUGH SUCH A "FINAL DETERMINATION"
COULD BE MADE ONLY BY THE EMPLOYING AGENCY, THE BOARD DID NOT WAIT FOR
RESPONDENT HOBBY TO ACT ON ITS RECOMMENDATION.  PETITIONER'S DEBARMENT
WAS MADE EFFECTIVE ON MAY 18, 1953, FOUR DAYS BEFORE THE CHAIRMAN OF
THE BOARD WROTE PETITIONER OF THE BOARD'S DETERMINATION AND NEARLY FOUR
WEEKS BEFORE THE DEPARTMENT TOOK ACTION TO REMOVE PETITIONER FROM HIS
POSITION.  THE BOARD'S HASTE CAN BE UNDERSTOOD ONLY IN TERMS OF ITS
ANNOUNCED INTENTION TO DEPRIVE AGENCIES OF ALL DISCRETION TO DETERMINE
WHETHER THE BOARD'S RECOMMENDATIONS SHOULD BE ACCEPTED.  (FN25)

IV. 

THERE ONLY REMAINS FOR CONSIDERATION THE QUESTION OF RELIEF. 
INITIALLY PETITIONER IS ENTITLED TO A DECLARATORY JUDGMENT THAT HIS
REMOVAL AND DEBARMENT WERE INVALID.  HE IS FURTHER ENTITLED TO AN ORDER
DIRECTING THE RESPONDENT MEMBERS OF THE CIVIL SERVICE COMMISSION TO
EXPUNGE FROM ITS RECORDS THE LOYALTY REVIEW BOARD'S FINDINGS THAT THERE
IS A REASONABLE DOUBT AS TO PETITIONER'S LOYALTY AND TO EXPUNGE FROM
ITS RECORDS ANY RULING THAT PETITIONER IS BARRED FROM FEDERAL
EMPLOYMENT BY REASON OF THAT FINDING.  HIS PRAYER FOR REINSTATEMENT,
HOWEVER, CANNOT BE GRANTED, SINCE IT APPEARS THAT THE TERM OF
PETITIONER'S APPOINTMENT WOULD HAVE EXPIRED ON DECEMBER 31, 1953,
WHOLLY APART FROM HIS REMOVAL ON LOYALTY GROUNDS. 

THE JUDGMENT BELOW IS REVERSED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR ENTRY OF A DECREE IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  12 FED. REG. 1935. 

FN2  EXECUTIVE ORDER 10241, 16 FED. REG. 3690. 

FN3  AUTHORITY FOR SUCH ACTION WAS PURPORTEDLY BASED ON REGULATION 14
OF THE REGULATIONS OF THE LOYALTY REVIEW BOARD.  17 FED. REG. 631. 

FN4  THREE OF THE FIVE - A FORMER PRESIDENT OF YALE UNIVERSITY, A
FORMER DEAN OF THE YALE MEDICAL SCHOOL, AND A FEDERAL CIRCUIT JUDGE -
HAD GIVEN SIMILAR TESTIMONY AT THE PREVIOUS HEARING. 

FN5  AUTHORITY FOR THE ORDER OF DEBARMENT WAS PURPORTEDLY BASED ON
CIVIL SERVICE RULE V, SEC. 5.101(A), 5 CFR (1954 SUPP.) SEC. 5.101(A). 
FN6  THE QUESTION OF THE BOARD'S JURISDICTION WAS, ON REQUEST OF THE
COURT, ARGUED AND BRIEFED.  COMPARE ALMA MOTOR CO. V. TIMKEN-DETROIT
AXLE CO., 329 U.S. 129, 132. 

FN7  13 FED. REG. 253 ET SEQ. 

FN8  ID., AT 255, 5 CFR SEC. 210.9. 

FN9 13 FED. REG. 255. 

FN10  17 FED. REG. 631.  REGULATION 14 HAD PREVIOUSLY BEEN AMENDED ON
DECEMBER 17, 1948.  13 FED. REG. 9366, 5 CFR SEC. 210.14.    FN11
EXECUTIVE ORDER 9806, 11 FED. REG. 13863.  THE COMMISSION WAS COMPOSED
OF OFFICIALS OF THE CIVIL SERVICE COMMISSION AND THE DEPARTMENTS OF
JUSTICE, STATE, TREASURY, WAR, AND NAVY. 

FN12  THE REPORT OF THE PRESIDENT'S TEMPORARY COMMISSION ON EMPLOYEE
LOYALTY (1947) 14. 

FN13 ID., AT 15. 

FN14  ID., AT 26. 

FN15  ID., AT 27. 

FN16  ID., AT 26. 

FN17  ID., AT 35-36. 

FN18  SEE BONTECOU, THE FEDERAL LOYALTY-SECURITY PROGRAM (1953), 29. 

FN19  SEE THE COMMISSION'S REPORT, SUPRA, NOTE 12, AT 30: 

"THE STANDARDS MUST BE SPECIFIC ENOUGH TO ASSURE THAT INNOCENT
EMPLOYEES WILL NOT FALL WITHIN THE PURVIEW OF THE DISLOYALTY CRITERIA. 
EVERY MATURE CONSIDERATION WAS INVOKED BY THE COMMISSION TO AFFORD
MAXIMUM PROTECTION TO THE GOVERNMENT FROM DISLOYAL EMPLOYEES WHILE
SAFEGUARDING THE INDIVIDUAL EMPLOYEE WITH A MAXIMUM PROTECTION FROM ILL
ADVISED ACCUSATIONS OF DISLOYALTY." 

FN20  AS OF JUNE 30, 1953, THE BOARD HAD UNDERTAKEN IN ONLY 58 CASES
TO "HOLD A HEARING AND REACH ITS OWN DECISION" DESPITE A FAVORABLE
DETERMINATION BELOW.  ANNUAL REPORTS OF THE CIVIL SERVICE COMMISSION:
1948 (P. 18), 1949 (P. 37), 1950 (PP. 33-34), 1951 (P. 36), 1952 (P.
56), 1953 (P. 31).   OF THESE 58 CASES, 20 RESULTED IN REVERSAL OF THE
FAVORABLE DETERMINATION.  1953 REPORT, P. 31, N. 1.  OF THESE 20 CASES,
12 - INCLUDING PETITIONER'S - AROSE IN THE FISCAL YEAR IMMEDIATELY
PRECEDING JUNE 30, 1953.  ID., AT 31.  IN THE REMAINING 38 CASES -
THOSE IN WHICH THE BOARD DID NOT REVERSE THE FAVORABLE DETERMINATION -
EITHER THE BOARD AFFIRMED THE FAVORABLE DETERMINATION OR THE EMPLOYEE
RESIGNED PRIOR TO THE SCHEDULED HEARING.  THUS IN THE 1953 FISCAL YEAR,
OF THE 22 HEARINGS SCHEDULED, 8 RESULTED IN AFFIRMANCE AND 2 WERE
CANCELLED BECAUSE OF RESIGNATION.  IBID. 

FN21  18 FED. REG. 2489. 

FN22  SECTION 11 PROVIDES IN PERTINENT PART: 

"ON AND AFTER THE EFFECTIVE DATE OF THIS ORDER THE LOYALTY REVIEW
BOARD ESTABLISHED BY EXECUTIVE ORDER NO. 9835 OF MARCH 21, 1947, SHALL
NOT ACCEPT AGENCY FINDINGS FOR REVIEW, UPON APPEAL OR OTHERWISE. 
APPEALS PENDING BEFORE THE LOYALTY REVIEW BOARD ON SUCH DATE SHALL BE
HEARD TO FINAL DETERMINATION IN ACCORDANCE WITH THE PROVISIONS OF THE
SAID EXECUTIVE ORDER NO. 9835, AS AMENDED.  AGENCY DETERMINATIONS
FAVORABLE TO THE OFFICER OR EMPLOYEE CONCERNED PENDING BEFORE THE
LOYALTY REVIEW BOARD ON SUCH DATE SHALL BE ACTED UPON BY SUCH BOARD,
AND WHENEVER THE BOARD IS NOT IN AGREEMENT WITH SUCH FAVORABLE
DETERMINATION THE CASE SHALL BE REMANDED TO THE DEPARTMENT OR AGENCY
CONCERNED FOR DETERMINATION IN ACCORDANCE WITH THE STANDARDS AND
PROCEDURES ESTABLISHED PURSUANT TO THIS ORDER." 

FN23  5 CFR (1954 SUPP.) SEC. 5.101(A). 

FN24  APPROXIMATELY 15% OF ALL FEDERAL EMPLOYEES ARE EXCEPTED FROM
"THE COMPETITIVE SERVICE."  1954 ANNUAL REPORT, UNITED STATES CIVIL
SERVICE COMMISSION, P. 10.  PETITIONER HIMSELF WAS NOT EMPLOYED IN "THE
COMPETITIVE SERVICE."  HIS POSITION WAS CLASSIFIED IN "SCHEDULE A," AN
EXEMPT CATEGORY.  5 CFR SEC. 6.101(N); 5 CFR SEC. 6.1(D). 

FN25  ON DECEMBER 17, 1948, THE BOARD ISSUED THE FOLLOWING DIRECTIVE,
ENTITLED "LEGAL EFFECT OF ADVISORY RECOMMENDATIONS," TO THE DEPARTMENTS
AND AGENCIES COVERED BY THE ORDER: 

"THE PRESIDENT EXPECTS THAT LOYALTY POLICIES, PROCEDURES, AND
STANDARDS WILL BE UNIFORMLY APPLIED IN THE ADJUDICATION OF LOYALTY
CASES BY THE SEVERAL AGENCIES, AND THE RESPONSIBILITY FOR COORDINATING
THE PROGRAM AND ASSURING UNIFORMITY HAS BEEN PLACED IN THE LOYALTY
REVIEW BOARD.  THE RECOMMENDATIONS OF THE CIVIL SERVICE COMMISSION IN
CASES OF EMPLOYEES COVERED BY SECTION 14 OF THE VETERANS' PREFERENCE
ACT OF 1944 ARE MANDATORY, AND THE LOYALTY OF PERSONS NOT COVERED BY
UNIFORMITY IS TO BE ATTAINED IT IS NECESSARY THAT THE HEAD OF AN AGENCY
FOLLOW THE RECOMMENDATION OF THE LOYALTY REVIEW BOARD IN ALL CASES." 

13 FED. REG. 9372, 5 CFR SEC. 220.4(D).  SEE BONTECOU, THE FEDERAL
LOYALTY-SECURITY PROGRAM (1953), 54-55.  COMPARE KUTCHER V. GRAY, 91
U.S. APP. D.C. 266, 199 F.2D 783. 

MR. JUSTICE BLACK, CONCURRING. 

I WOULD PREFER TO DECIDE THIS CASE ON THE CONSTITUTIONAL QUESTIONS
DISCUSSED BY MR. JUSTICE DOUGLAS OR ON SOME OF THE OTHER CONSTITUTIONAL
QUESTIONS NECESSARILY INVOLVED.  SEE UNITED STATES V. LOVETT, 328 U.S.
303.  SEE MY DISSENTS IN DENNIS V. UNITED STATES, 341 U.S. 494, 579
581; COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 445-453.  SEE ALSO MY
CONCURRING OPINION IN JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH,
341 U.S. 123, 142-149.  I AGREE THAT IT IS GENERALLY BETTER FOR THIS
COURT NOT TO DECIDE CONSTITUTIONAL QUESTIONS IN CASES WHICH CAN BE
ADEQUATELY DISPOSED OF ON NON-CONSTITUTIONAL GROUNDS.  SEE CHARLES
RIVER BRIDGE V. WARREN BRIDGE, 11 PET. 420, 553.  BUT THIS GENERALLY
ACCEPTED PRACTICE SHOULD NOT BE TREATED AS THOUGH IT WERE AN INFLEXIBLE
RULE TO BE INEXORABLY FOLLOWED UNDER ALL CIRCUMSTANCES.  SEE YOUNGSTOWN
CO. V. SAWYER, 343 U.S. 579, 584-585.  HERE, AS IN THE YOUNGSTOWN CASE,
I THINK IT WOULD BE BETTER JUDICIAL PRACTICE TO REACH AND DECIDE THE
CONSTITUTIONAL ISSUES, ALTHOUGH I AGREE WITH THE COURT THAT THE
PRESIDENTIAL ORDER CAN JUSTIFIABLY BE CONSTRUED AS DENYING THE LOYALTY
REVIEW BOARD THE POWER EXERCISED IN THIS CASE.  FOR THIS REASON I JOIN
THE OPINION OF THE COURT.  BUT I WISH IT DISTINCTLY UNDERSTOOD THAT I
HAVE GRAVE DOUBT AS TO WHETHER THE PRESIDENTIAL ORDER HAS BEEN
AUTHORIZED BY ANY ACT OF CONGRESS.  THAT ORDER AND OTHERS ASSOCIATED
WITH IT EMBODY A BROAD, FAR-REACHING ESPIONAGE PROGRAM OVER GOVERNMENT
EMPLOYEES.  THESE ORDERS LOOK MORE LIKE LEGISLATION TO ME THAN PROPERLY
AUTHORIZED REGULATIONS TO CARRY OUT A CLEAR AND EXPLICIT COMMAND OF
CONGRESS.  I ALSO DOUBT THAT THE CONGRESS COULD DELEGATE POWER TO DO
WHAT THE PRESIDENT HAS ATTEMPTED TO DO IN THE EXECUTIVE ORDER UNDER
CONSIDERATION HERE.  AND OF COURSE THE CONSTITUTION DOES NOT CONFER
LAWMAKING POWER ON THE PRESIDENT.  YOUNGSTOWN CO. V. SAWYER, 343 U.S.
579. 

I HAVE THOUGHT IT NECESSARY TO ADD THESE STATEMENTS TO THE COURT'S
OPINION IN ORDER THAT THE PRESIDENT'S POWER TO ISSUE THE ORDER MIGHT
NOT BE CONSIDERED AS HAVING BEEN DECIDED SUB SILENTIO. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WITH ALL DEFERENCE, I DO NOT THINK WE CAN AVOID THE CONSTITUTIONAL
ISSUE IN THIS CASE. 

THE MOST THAT CAN BE SAID IS THAT THE TERMS OF THE EXECUTIVE ORDER
ARE AMBIGUOUS.  THE CONSTRUCTION URGED BY THE ATTORNEY GENERAL IS
BUTTRESSED BY A HISTORY OF ADMINISTRATIVE PRACTICE, WITH CASE AFTER
CASE BEING REVIEWED BY THE BOARD IN THE PRECISE MANNER OF THIS ONE. 
THE QUESTION OF CONSTRUCTION OF THE EXECUTIVE ORDER WAS SO WELL SETTLED
THAT NEITHER THE GOVERNMENT NOR DR. PETERS SUGGESTED THE ABSENCE OF
AUTHORITY IN THE REVIEW BOARD TO TAKE JURISDICTION OF THIS CASE ON ITS
OWN MOTION.  I AGREE THAT IT HAD SUCH AUTHORITY.  IT, THEREFORE,
BECOMES NECESSARY FOR ME TO REACH THE CONSTITUTIONAL ISSUE. 

DR. PETERS WAS CONDEMNED BY FACELESS INFORMERS, SOME OF WHOM WERE NOT
KNOWN EVEN TO THE BOARD THAT CONDEMNED HIM.  SOME OF THESE INFORMERS
WERE NOT EVEN UNDER OATH.  NONE OF THEM HAD TO SUBMIT TO CROSS
EXAMINATION.  NONE HAD TO FACE DR. PETERS.  SO FAR AS WE OR THE BOARD
KNOW, THEY MAY BE PSYCHOPATHS OR VENAL PEOPLE, LIKE TITUS OATES, WHO
REVEL IN BEING INFORMERS.  THEY MAY BEAR OLD GRUDGES.  UNDER CROSS
EXAMINATION THEIR STORIES MIGHT DISAPPEAR LIKE BUBBLES.  THEIR
WHISPERED CONFIDENCES MIGHT TURN OUT TO BE YARNS CONCEIVED BY TWISTED
MINDS OR BY PEOPLE WHO, THOUGH SINCERE, HAVE POOR FACULTIES OF
OBSERVATION AND MEMORY. 

CONFRONTATION AND CROSS-EXAMINATION UNDER OATH ARE ESSENTIAL, IF THE
AMERICAN IDEAL OF DUE PROCESS IS TO REMAIN A VITAL FORCE IN OUR PUBLIC
LIFE.  WE DEAL HERE WITH THE REPUTATION OF MEN AND THEIR RIGHT TO WORK
THINGS MORE PRECIOUS THAN PROPERTY ITSELF.  WE HAVE HERE A SYSTEM
WHERE GOVERNMENT WITH ALL ITS POWER AND AUTHORITY CONDEMNS A MAN TO A
SUSPECT CLASS AND THE OUTER DARKNESS, WITHOUT THE RUDIMENTS OF A FAIR
TRIAL.  THE PRACTICE OF USING FACELESS INFORMERS HAS APPARENTLY SPREAD
THROUGH A VAST DOMAIN.  IT IS USED NOT ONLY TO GET RID OF EMPLOYEES IN
THE GOVERNMENT, BUT ALSO EMPLOYEES WHO WORK FOR PRIVATE FIRMS HAVING
CONTRACTS WITH THE GOVERNMENT.  (FN1)  IT HAS TOUCHED COUNTLESS
HUNDREDS OF MEN AND WOMEN AND RUINED MANY.  IT IS AN UN-AMERICAN
PRACTICE WHICH WE SHOULD CONDEMN.  IT DEPRIVES MEN OF "LIBERTY" WITHIN
THE MEANING OF THE FIFTH AMENDMENT, FOR ONE OF MAN'S MOST PRECIOUS
LIBERTIES IS HIS RIGHT TO WORK.  WHEN A MAN IS DEPRIVED OF THAT
"LIBERTY" WITHOUT A FAIR TRIAL, HE IS DENIED DUE PROCESS.  IF HE WERE
CONDEMNED BY CONGRESS AND MADE INELIGIBLE FOR GOVERNMENT EMPLOYMENT, HE
WOULD SUFFER A BILL OF ATTAINDER, OUTLAWED BY THE CONSTITUTION.  SEE
UNITED STATES V. LOVETT, 328 U.S. 303.  AN ADMINISTRATIVE AGENCY - THE
CREATURE OF CONGRESS - CERTAINLY CANNOT EXERCISE POWERS THAT CONGRESS
ITSELF IS BARRED FROM ASSERTING.  SEE THE OPINION OF MR. JUSTICE BLACK
IN ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 123, 144-146.  (FN2) 

THOSE WHO SEE THE FORCE OF THIS POSITION COUNTER BY SAYING THAT THE
GOVERNMENT'S SOURCES OF INFORMATION MUST BE PROTECTED, IF THE CAMPAIGN
AGAINST SUBVERSIVES IS TO BE SUCCESSFUL.  THE ANSWER IS PLAIN.  IF THE
SOURCES OF INFORMATION NEED PROTECTION, THEY SHOULD BE KEPT SECRET. 
BUT ONCE THEY ARE USED TO DESTROY A MAN'S REPUTATION AND DEPRIVE HIM OF
HIS "LIBERTY," THEY MUST BE PUT TO THE TEST OF DUE PROCESS OF LAW.  THE
USE OF FACELESS INFORMERS IS WHOLLY AT WAR WITH THAT CONCEPT.  WHEN WE
RELAX OUR STANDARDS TO ACCOMMODATE THE FACELESS INFORMER, WE VIOLATE
OUR BASIC CONSTITUTIONAL GUARANTEES AND APE THE TACTICS OF THOSE WHOM
WE DESPISE. 

FN1 BERLE, THE 20TH CENTURY CAPITALIST REVOLUTION (1954), PP. 92-93,
TRACES THE IMPACT OF THE LOYALTY PROGRAM ON EMPLOYEES OF CORPORATIONS
HAVING CONTRACTS WITH THE GOVERNMENT: 

"TO BEGIN, LET US DEAL WITH A SITUATION IN WHICH A POWERFUL
CORPORATION IS UNDER A CONTRACT DUTY TO THE UNITED STATES GOVERNMENT,
OR SOME AGENCY OF IT, TO FIRE OR DECLINE TO HIRE INDIVIDUALS DESIGNATED
TO THEM AS POSSIBLE SECURITY RISKS.  IN PRACTICE THEY MEAN THAT A MAN
WHO MAY HAVE BEEN EMPLOYED FOR YEARS, BEING SUSPECT FOR SOME REASON, IS
DESIGNATED TO THE APPROPRIATE AUTHORITIES (OF THE CORPORATION).  THINGS
THEN HAPPEN TO HIM RAPIDLY.  ALL HE KNOWS IS THAT HE IS CALLED INTO THE
OFFICE ONE DAY AND TOLD THAT HE IS DISCHARGED - OR AT BEST TRANSFERRED
TO SOME FAR LESS DESIRABLE JOB.  IF THE BAN IS COMPLETE, AND HE LIVES
IN ANY OF THE CITIES IN WHICH THE CORPORATION IS A PREPONDERANT
EMPLOYER, THE CONSEQUENCES ARE EXTREME.  THE MAIN AVENUE OF EMPLOYMENT
IS CLOSED TO HIM.  HE MUST MOVE INTO SOME OTHER CITY AND FIND SOME
OTHER JOB IF HE CAN.  SINCE THE SAME BAN WILL PROBABLY FOLLOW HIM INTO
ANY OTHER PLANT ENGAGED IN DEFENSE ORDERS, THE GOING IS ROUGH.  IF HE
IS A YOUNG MAN, HE WINDS UP IN SOME RECOGNIZABLY MARGINAL JOB, SUCH AS
DISHWASHING OR UNSKILLED LABOR.  IF HE IS A MAN IN MIDDLE LIFE, HE MAY
END ON THE INDUSTRIAL SCRAP HEAP.  PROBABLY HE NEVER DISCOVERS EXACTLY
WHAT HIT HIM.  THE PERSONNEL PEOPLE OF THE CORPORATIONS DO NOT CONFIDE
TO HIM THEIR REASONS FOR ACTION." 

FN2  SEE BERLE, OP. CIT. SUPRA, P. 98. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

I AGREE WITH MR. JUSTICE DOUGLAS THAT THE COURT'S REASON FOR
ANNULLING DR. PETERS' DISCHARGE IS NOT SOUND.  IN ADDITION TO THE
REASONS STATED BY HIM, I FIND OTHER FACTORS THAT, TO ME, STRENGTHEN THE
VIEW THAT THE ACTION OF THE LOYALTY REVIEW BOARD WAS NOT INVALID. 
HOWEVER, I DO NOT EXPRESS ANY OPINION ON THE CONSTITUTIONAL PROBLEMS
WHICH MIGHT ULTIMATELY BE FACED IF THE COURT HAD FOUND THAT THE REVIEW
BOARD'S ACTION AND ALL OTHER NONCONSTITUTIONAL ASPECTS OF THE CASE WERE
PROPER. 

EXECUTIVE ORDER NO. 9835 WAS ISSUED BY THE PRESIDENT ON MARCH 21,
1947.  BY THIS ORDER HE ESTABLISHED THE LOYALTY REVIEW BOARD AND
GRANTED TO IT CERTAIN RULE-MAKING POWERS.  PART III, SEC. 1B, EXEC.
ORDER NO. 9835.  THE REVIEW BOARD'S FIRST PROMULGATION OF REGULATIONS
PURSUANT TO THIS POWER INCLUDED THE ORIGINAL OF REGULATION 14, WHICH
PROVIDED THAT THE BOARD HAD THE RIGHT "ON ITS OWN MOTION" TO REVIEW THE
DECISIONS OF THE DEPARTMENT OR AGENCY LOYALTY BOARDS "EVEN THOUGH NO
APPEAL HAS BEEN TAKEN."  13 FED. REG. 255 (ADOPTED DECEMBER 17, 1947). 
THUS, FROM THE VERY OUTSET, THE PROCEDURE FOLLOWED BY THE REVIEW BOARD
IN REVIEWING THESE CASES WAS PART OF THE LOYALTY PROGRAM.  FURTHERMORE,
FROM 1948 THROUGH 1952, IN EACH OF THE ANNUAL REPORTS OF THE CIVIL
SERVICE COMMISSION, THE RESULTS OF THE REVIEW BOARD'S POST-AUDIT
ACTIONS UNDER REGULATION 14 WERE UNMISTAKABLY RECORDED.   (FN1)  THESE
REPORTS WERE SUBMITTED TO THE PRESIDENT PURSUANT TO STATUTORY
REQUIREMENT.  (FN2)  IN ADDITION TO STATING ANNUAL DATA ON GENERAL POST
AUDIT REVIEWS (MORE THAN 5,000 IN 1952), THE REPORTS CLEARLY INDICATED
THAT THE BOARD WAS REHEARING CASES ON ITS OWN MOTION, SUCH AS THE
PRESENT, WHERE THE DECISION OF THE AGENCY LOYALTY BOARD HAD BEEN
FAVORABLE TO THE EMPLOYEE.  (FN3)  THE COURT PLACES EMPHASIS ON THE
NUMBER OF CASES SO HANDLED, BUT THIS HARDLY SEEMS RELEVANT IN VIEW OF
THE FACT THAT THE REPORTS INDISPUTABLY CONVEYED TO ANY READER THE FACT
OF WHAT THE BOARD WAS DOING, WHETHER IN 1 CASE OR 100.    THE COURT IN
THIS CASE IS REVIEWING A PRESIDENTIAL ORDER AND RULES MADE THEREUNDER. 
I DO NOT FIND IT AS EASY AS DOES THE MAJORITY TO ANALOGIZE SUCH REVIEW
TO JUDICIAL REVIEW OF CONGRESSIONAL ACTS AND ADMINISTRATIVE
INTERPRETATION OF SUCH ACTS.  CERTAIN DIFFERENCES ARE IMMEDIATELY
APPARENT.  THE EXECUTIVE BRANCH IS TRADITIONALLY FREE TO HANDLE ITS
INTERNAL PROBLEMS OF ADMINISTRATION IN ITS OWN WAY.  THE LEGALITY OF
JUDICIAL REVIEW OF SUCH INTRA-EXECUTIVE OPERATIONS AS THIS IS, FOR ME,
NOT COMPLETELY FREE FROM DOUBT.  HOWEVER, CONSTRUING THE LOYALTY ORDER
AS THE COURT DOES, LIKE A STATUTE, THE CONTEMPORANEOUS CONSTRUCTION OF
THE ORDER BY THE REVIEW BOARD IN PROMULGATING REGULATION 14, AND THE
ACTION OF THE PRESIDENT IN ALLOWING THE REGULATION AND PRACTICES
THEREUNDER TO CONTINUE AFTER HAVING NOTICE FROM THE CIVIL SERVICE
COMMISSION REPORTS, LEAD ME TO CONCLUDE THAT THE BOARD BY REGULATION 14
CORRECTLY INTERPRETED THE PRESIDENTIAL INTENTION CONVEYED BY EXECUTIVE
ORDER 9835.  SUCH REASONABLE INTERPRETATION PROMPTLY ADOPTED AND LONG
CONTINUED BY THE PRESIDENT AND THE BOARD SHOULD BE RESPECTED BY THE
COURTS.  THAT HAS BEEN JUDICIAL PRACTICE HERETOFORE.  (FN4) 

NOR DOES COMPARISON OF REGULATION 14 WITH THE ORDER SHOW, IN MY
OPINION, THAT THE REGULATION IS "INCONSISTENT WITH" ANY OF THE
PROVISIONS OF THE ORDER.  RATHER THE POWER OF THE REVIEW BOARD TO
REVIEW UNDER REGULATION 14 APPEARS TO BE SUPPLEMENTAL TO THE OTHER
PROCEDURES WHICH THE ORDER ITSELF PRESCRIBES.  THEREFORE REGULATION 14
CONSTITUTED MERELY AN IMPLEMENTATION OF THE ORDER WHICH THE REVIEW
BOARD IS SPECIFICALLY AUTHORIZED TO MAKE UNDER PART III, SEC. 1B, SET
OUT IN THE COURT'S OPINION, P. 340.  NEITHER OF THE PARTIES HAS
CONTENDED OTHERWISE BEFORE THIS COURT.  THEY ALSO AGREE THAT THE
BOARD'S ACTION WAS VALID. 

UNDOUBTEDLY THE PRESIDENT HAD KNOWLEDGE AND APPROVED OF THE
REGULATION.  THIS IS SHOWN BY HIS SPECIFIC RECOGNITION OF SUCH CASES IN
HIS OWN 1953 ORDER.  (FN5)  THAT ORDER, WHILE NOT CONTROLLING DR.
PETERS' CASE DIRECTLY, SINCE IT DID NOT BECOME EFFECTIVE UNTIL AFTER
THE REVIEW BOARD HAD HEARD HIS CASE, RECOGNIZED THAT THE REVIEW BOARD
HAD BEEN AND COULD REVIEW DECISIONS WHICH HAD BEEN FAVORABLE TO AN
EMPLOYEE.  THIS ACTION BY THE PRESIDENT AMOUNTS TO APPROVAL OF THE
PRACTICE OF THE REVIEW BOARD UNDER REGULATION 14.  I AM THEREFORE
COMPELLED TO CONCLUDE THAT THE ACTION OF THE REVIEW BOARD IN RENDERING
ITS ADVISORY RECOMMENDATION IN THIS CASE WAS NOT INVALID. 

THE COURT SEEMS TO IMPLY, HOWEVER, THAT THE REVIEW BOARD'S DECISION
WAS MORE THAN MERELY A RECOMMENDATION TO THE HEAD OF THE DEPARTMENT
EMPLOYING DR. PETERS AND THAT THE BOARD, IN ANOTHER "UNWARRANTED
ASSUMPTION OF POWER," BY ITS LETTER OF MAY 22, 1953, ERRONEOUSLY
SEPARATED DR. PETERS FROM THE GOVERNMENT SERVICE.  NOWHERE IN THE
MAJORITY OPINION DOES IT APPEAR THAT SECRETARY HOBBY OR THE DEPARTMENT
SHE HEADS, AND FOR WHOM DR. PETERS WORKED, EVER TOOK ANY ACTION IN
REGARD TO THE REVIEW BOARD'S RECOMMENDATION.  THE REFERENCE TO THIS MAY
22 LETTER IS APT TO MISLEAD, AS IT HAS NOTHING TO DO WITH THE
DEPARTMENT'S DISCHARGE OF DR. PETERS, THE VALIDITY OF WHICH IS THE
ISSUE IN THIS CASE. 

I AGREE THAT THE REVIEW BOARD'S LETTER OF MAY 22, 1953, MAY HAVE BEEN
ERRONEOUS.  UNDER CIVIL SERVICE RULE V, SEC. 5.101(A), (FN6) FEDERAL
EMPLOYEES FOUND DISQUALIFIED FOR FEDERAL EMPLOYMENT BECAUSE OF A
REASONABLE DOUBT AS TO THEIR LOYALTY ARE BARRED FROM THE FEDERAL
COMPETITIVE SERVICE FOR THREE YEARS.  THIS "FINAL DETERMINATION" AS TO
LOYALTY IS AND CAN BE MADE ONLY BY THE HEAD OF A DEPARTMENT OR AGENCY
ON RECOMMENDATION OF A LOYALTY BOARD.  (FN7)  WHEN THE HEAD OF A
DEPARTMENT ACTS ON THE REVIEW BOARD'S RECOMMENDATION, SEC. 5.101(A)
BECOMES EFFECTIVE.  THE REVIEW BOARD, ACTING AS AN AGENCY OF THE CIVIL
SERVICE COMMISSION, THEN NOTIFIES THE EMPLOYEES OF HIS
DISQUALIFICATION.  ASSUMING THAT THE REVIEW BOARD WAS NOT NOTIFIED OF
ANY "FINAL DETERMINATION" PRIOR TO THE LETTER OF MAY 22, IT WAS SENT
ERRONEOUSLY.  HOWEVER, IT AMOUNTED TO NO MORE THAN A NULLITY AND DR.
PETERS LOST NOTHING.  IT IS UNDISPUTED THAT ON JUNE 12, 1953, THE
SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, A SUBORDINATE OF
SECRETARY HOBBY, "NOTIFIED PLAINTIFF OF HIS SEPARATION FROM HIS
POSITION AS SPECIAL CONSULTANT."  (FN8)  THIS WAS THE NOTIFICATION
WHICH EFFECTIVELY SEPARATED HIM FROM GOVERNMENT SERVICE AND WHICH IS
THE BASIS FOR HIS COMPLAINT FOR WRONGFUL DISCHARGE. 

LIMITING MYSELF TO ISSUES DECIDED BY THE MAJORITY, I DISSENT. 

FN1  ANNUAL REPORTS OF THE CIVIL SERVICE COMMISSION:  1948 (P. 18);
1949 (PP. 37-38); 1950 (PP. 33-34); 1951 (P. 36); 1952 (P. 56). 

FN2  5 U.S.C. SEC. 633(5). 

FN3  "DURING THE FISCAL YEAR 1952, THE LOYALTY REVIEW BOARD POST
AUDITED 5,335 CASES WHICH HAD BEEN DECIDED FAVORABLY BY AGENCIES AND
REGIONAL LOYALTY BOARDS.  THE BOARD AUTHORIZED THE CLOSING OF 5,259 OF
THESE CASES UPON FINDING THAT PROPER PROCEDURES HAD BEEN FOLLOWED.  IN
66 OTHER CASES, HOWEVER, FURTHER PROCESSING WAS NECESSARY TO ENSURE
COMPLIANCE WITH STANDARD PROCEDURES, AND SO THE CASES WERE REMANDED TO
BOARDS IN THE AGENCIES OR IN CIVIL-SERVICE REGIONS. 

"THE BOARD SCHEDULED REVIEW OF THE OTHER 10 CASES ON THEIR MERITS AND
OFFERED TO HEAR THE INDIVIDUALS CONCERNED BEFORE RENDERING ITS DECISION
ON THEIR CASES.  ONE CASE WAS CLOSED AS INCOMPLETE WHEN THE INDIVIDUAL
RESIGNED.  ACTION ON THE OTHER 9 CASES WAS COMPLETED; SINCE THIS TYPE
OF REVIEW OF A CASE UNDER REGULATION 14 IS SIMILAR TO THE CONSIDERATION
GIVEN AN APPEAL, THE CASES OF THESE INDIVIDUALS ARE INCLUDED IN THE
FOLLOWING SECTION, WHICH SHOWS ACTION ON APPEALS RECEIVED BY THE
LOYALTY REVIEW BOARD."  69TH ANNUAL REPORT (1952), CIVIL SERVICE
COMMISSION, P. 56. 

FN4  CF. UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534,
549; BOWLES V. SEMINOLE ROCK CO., 325 U.S. 410, 413-414; FEDERAL CROP
INSURANCE CORP. V. MERRILL, 332 U.S. 380; NORWEGIAN NITROGEN PRODUCTS
CO. V. UNITED STATES, 288 U.S. 294, 313, 315; HELVERING V. WINMILL, 305
U.S. 79, 83. 

FN5  EXEC. ORDER NO. 10450, SEC. 11, PROMULGATED APRIL 27, 1953, TO
BECOME EFFECTIVE MAY 27, 1953.   SET OUT IN THE COURT'S OPINION, N.
22. 

FN6  "PERSONS DISQUALIFIED FOR APPOINTMENT  ...  .  PROVIDED, THAT NO
PERSON SHALL BE ADMITTED TO COMPETITIVE EXAMINATION, NOR SHALL HE BE
EMPLOYED IN ANY POSITION IN THE COMPETITIVE SERVICE WITHIN 3 YEARS
AFTER A FINAL DETERMINATION THAT HE IS DISQUALIFIED FOR FEDERAL
EMPLOYMENT BECAUSE OF A REASONABLE DOUBT AS TO HIS LOYALTY TO THE
GOVERNMENT OF THE UNITED STATES."  5 CFR, 1949 ED. (1954 CUM. SUPP.),
SEC. 5.101(A). 

FN7  EXEC. ORDER NO. 9835, PART II: 

"1.  THE HEAD OF EACH DEPARTMENT AND AGENCY IN THE EXECUTIVE BRANCH
OF THE GOVERNMENT SHALL BE PERSONALLY RESPONSIBLE FOR AN EFFECTIVE
PROGRAM TO ASSURE THAT DISLOYAL CIVILIAN OFFICERS OR EMPLOYEES ARE NOT
RETAINED IN EMPLOYMENT IN HIS DEPARTMENT OR AGENCY. 

     *         *         *         *         * 

"2.  THE HEAD OF EACH DEPARTMENT AND AGENCY SHALL APPOINT ONE OR MORE
LOYALTY BOARDS,  ...  FOR THE PURPOSE OF HEARING LOYALTY CASES ARISING
WITHIN SUCH DEPARTMENT OR AGENCY AND MAKING RECOMMENDATIONS WITH
RESPECT TO THE REMOVAL OF ANY OFFICER OR EMPLOYEE OF SUCH DEPARTMENT OR
AGENCY ON GROUNDS RELATING TO LOYALTY, AND HE SHALL PRESCRIBE
REGULATIONS FOR THE CONDUCT OF THE PROCEEDINGS BEFORE SUCH BOARDS. 

     *         *         *         *         * 

"3.  A RECOMMENDATION OF REMOVAL BY A LOYALTY BOARD SHALL BE SUBJECT
TO APPEAL BY THE OFFICER OR EMPLOYEE AFFECTED, PRIOR TO HIS REMOVAL, TO
THE HEAD OF THE EMPLOYING DEPARTMENT OR AGENCY OR TO SUCH PERSON OR
PERSONS AS MAY BE DESIGNATED BY SUCH HEAD, UNDER SUCH REGULATIONS AS
MAY BE PRESCRIBED BY HIM, AND THE DECISION OF THE DEPARTMENT OR AGENCY
CONCERNED SHALL BE SUBJECT TO APPEAL TO THE CIVIL SERVICE COMMISSION'S
LOYALTY REVIEW BOARD, HEREINAFTER PROVIDED FOR, FOR AN ADVISORY
RECOMMENDATION." 

ID., PART III, 1: 

"A. THE (REVIEW) BOARD SHALL HAVE AUTHORITY TO REVIEW CASES INVOLVING
PERSONS RECOMMENDED FOR DISMISSAL ON GROUNDS RELATING TO LOYALTY BY THE
LOYALTY BOARD OF ANY DEPARTMENT OR AGENCY AND TO MAKE ADVISORY
RECOMMENDATIONS THEREON TO THE HEAD OF THE EMPLOYING DEPARTMENT OR
AGENCY  ...  ." 

FN8  PETITIONER'S COMPLAINT, PARA. 27. 
..END :








FEDERAL COMMUNICATIONS COMMISSION V. ALLENTOWN BROADCASTING CORP. 349
U.S. 358 


NO. 451.  ARGUED APRIL 20-21, 1955 - DECIDED JUNE 6, 1955 - 94 U.S. APP.
D.C. - , - F.2D, REVERSED. 


1.  THE FEDERAL COMMUNICATIONS COMMISSION, IN CONSIDERING TWO MUTUALLY
EXCLUSIVE APPLICATIONS FOR RADIO BROADCASTING STATIONS IN DIFFERENT
COMMUNITIES, UNDER SEC. 307(B) OF THE COMMUNICATIONS ACT, MAY PROPERLY
DECIDE IN FAVOR OF ONE APPLICANT OVER THE OTHER ON THE BASIS OF
COMMUNITY NEED WITHOUT FIRST FINDING THAT THE APPLICANTS ARE
APPROXIMATELY EQUAL IN THEIR ABILITY TO SERVE THEIR RESPECTIVE
COMMUNITIES.  PP. 360-362. 

2.  WHEN MUTUALLY EXCLUSIVE APPLICANTS SEEK AUTHORITY TO SERVE
DIFFERENT COMMUNITIES, IT IS PROPER FOR THE COMMISSION TO DETERMINE
FIRST WHICH COMMUNITY HAS THE GREATER NEED FOR ADDITIONAL SERVICES AND
THEN TO DETERMINE WHICH APPLICANT CAN BEST SERVE THAT COMMUNITY'S
NEED.  PP. 361-362. 

3.  THE DISTRIBUTION OF A SECOND LICENSE TO A COMMUNITY IN ORDER TO
SECURE LOCAL COMPETITION FOR ORIGINATING PROGRAMS OF LOCAL INTEREST AND
PROVIDE AN ADDITIONAL ORGAN FOR LOCAL SELF-EXPRESSION IS WITHIN THE
ALLOWABLE AREA OF THE COMMISSION'S DISCRETION.  P. 362. 

4.  THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE COMMISSION'S
DECISION IN THIS CASE.  PP. 363-364. 

5.  AN ADMINISTRATIVE AGENCY'S OVERRULING OF AN EXAMINER'S FINDINGS
BASED ON THE DEMEANOR OF A WITNESS IS NOT REQUIRED TO BE SUPPORTED BY A
"VERY SUBSTANTIAL PREPONDERANCE" IN THE EVIDENCE.  P. 364. 

6.  THE DECISION OF THE COURT OF APPEALS REVERSING THE ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION IN THIS CASE WAS ERRONEOUS IN MATTERS
OF LAW, AND THE CASE IS REMANDED TO THAT COURT FOR RECONSIDERATION OF
THE RECORD BUT FREED FROM RULINGS HERE DECLARED ERRONEOUS.  PP. 364
365. 

FEDERAL COMMUNICATIONS COMMISSION V. ALLENTOWN BROADCASTING CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE DISPOSITION OF TWO APPLICATIONS FOR
CONSTRUCTION PERMITS FOR STANDARD BROADCAST STATIONS.  ONE APPLICATION
WAS FILED BY THE EASTON PUBLISHING CO. FOR EASTON, PENNSYLVANIA, AND
THE OTHER BY THE ALLENTOWN BROADCASTING CORP. FOR ALLENTOWN,
PENNSYLVANIA.  BOTH WERE FOR THE SAME FREQUENCY, AND, DESPITE THE FACT
THAT NEITHER STATION WOULD RENDER SERVICE TO THE OTHER COMMUNITY,
SIMULTANEOUS OPERATION OF THE TWO STATIONS WOULD CAUSE MUTUALLY
DESTRUCTIVE INTERFERENCE. 

HEARINGS WERE FIRST HELD IN 1946 AND RESULTED IN THE GRANT OF THE
ALLENTOWN APPLICATION.  THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT REVERSED THE COMMISSION AND REMANDED THE CASE FOR
"FINDINGS UPON THE COMPARATIVE NEEDS OF THE TWO COMMUNITIES FOR NEW
RADIO SERVICE AND THE RELATIVE ABILITIES OF THE APPLICANTS TO SERVE THE
GREATER NEED."  85 U.S. APP. D.C. 33, 40, 175 F.2D 344, 351. 

NEW HEARINGS WERE HELD IN 1951 BY AN EXAMINER WHOSE INITIAL DECISION
RECOMMENDED THAT THE ALLENTOWN APPLICATION BE GRANTED.  EASTON FILED
EXCEPTIONS TO THAT DECISION WITH THE COMMISSION, AND AFTER ORAL
ARGUMENT THE COMMISSION ISSUED ITS FINAL DECISION, DISAGREEING WITH ITS
EXAMINER AND GRANTING THE STATION TO EASTON.  THE COMMISSION MADE
DETAILED FINDINGS OF FACT AS TO THE QUALIFICATIONS OF THE APPLICANTS
AND THE NATURE OF THE COMMUNITIES TO BE SERVED.  MOST FACTORS PROVIDED
NO BASIS FOR CHOOSING BETWEEN THE APPLICANTS.  BOTH WERE FOUND LEGALLY,
TECHNICALLY AND OTHERWISE QUALIFIED TO BECOME THE LICENSEE; BOTH
COMMUNITIES WERE EQUALLY IN NEED OF THE PROGRAMS PROPOSED TO BE
BROADCAST BY EACH APPLICANT.  ONE FACTOR, HOWEVER, WAS CRUCIAL IN
DETERMINING, UNDER SEC. 307(B) OF THE COMMUNICATIONS ACT, (FN1) WHICH
APPLICANT SHOULD RECEIVE THE LICENSE.  ALLENTOWN HAD THREE LOCAL
STATIONS; EASTON ONLY ONE.  THE COMMISSION RECOGNIZED THAT ALLENTOWN
WAS A CITY ALMOST TRIPLE THE SIZE OF EASTON AND GROWING AT A GREATER
PACE, BUT HELD THAT EASTON'S NEED FOR A CHOICE BETWEEN LOCALLY
ORIGINATED PROGRAMS WAS DECISIVE. 

THE COURT OF APPEALS REVERSED.  (FN2)  ITS EXAMINATION OF THE RECORD
IN DETAIL DEMONSTRATED TO IT THAT FINDINGS OF FACT OF THE COMMISSION
THAT OVERRULED FINDINGS OF THE HEARING EXAMINER WERE ERRONEOUS.  SINCE
THESE COMMISSION FINDINGS, IT THOUGHT, WERE THE BASIS FOR THAT BODY'S
ULTIMATE FINDING OF EASTON'S ABILITY TO SERVE, IT DIRECTED THE
COMMISSION TO REVALUATE THE "ISSUE OF THE RELATIVE ABILITIES OF THE TWO
APPLICANTS TO SERVE IN THE PUBLIC INTEREST."  IT HELD THAT THERE WAS NO
SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT THE DETERMINATION THAT
"THE ABILITY OF THE APPLICANTS TO SERVE THEIR RESPECTIVE COMMUNITIES
WAS ABOUT EQUAL."  IT CONCLUDED THAT, WITHOUT SUPPORT FOR THIS
UNDERLYING FINDING, IT WAS IMPROPER TO APPLY THE "CHOICE OF LOCAL
SERVICE" PRINCIPLE.  IN VIEW OF THE IMPORTANCE TO THE ADMINISTRATION OF
THE ACT, CERTIORARI WAS GRANTED TO REVIEW THIS DECISION.  348 U.S.
910. 

THE MORE IMPORTANT QUESTION PRESENTED BY THIS CERTIORARI, AS STATED
BY PETITIONER, IS WHETHER THE FEDERAL COMMUNICATIONS COMMISSION, IN
AWARDING AM LICENSES BETWEEN MUTUALLY EXCLUSIVE APPLICANTS FOR
DIFFERENT COMMUNITIES, CAN SELECT ONE COMMUNITY OVER ANOTHER ON THE
BASIS OF THE FORMER'S NEED ONLY IF IT HAS FIRST FOUND THAT THE
APPLICANTS ARE APPROXIMATELY EQUAL IN THEIR ABILITY TO SERVE THEIR
RESPECTIVE COMMUNITIES. 

THE JUDGMENT OF THE COURT OF APPEALS THAT SUCH A PRELIMINARY FINDING
WAS NECESSARY WAS PREDICATED UPON THE REQUIREMENT OF ITS EARLIER
DECISION IN THIS SAME CONTROVERSY, WHICH WAS NOT APPEALED, THAT THERE
MUST BE, AS STATED ABOVE, FINDINGS NOT ONLY ON COMPARATIVE NEEDS OF THE
COMMUNITIES BUT ALSO AS TO THE "RELATIVE ABILITIES OF THE APPLICANTS TO
SERVE THE GREATER NEED."  85 U.S. APP. D.C., AT 40, 175, F.2D, AT 351. 
THE COURT OF APPEALS, AS WE UNDERSTAND ITS OPINION IN THE PRESENT CASE,
THOUGHT THAT THE "CHOICE OF LOCAL SERVICE" PRINCIPLE APPLIED ONLY WHERE
COMMUNITY NEED AND APPLICANT ABILITY TO SERVE SUCH NEED WERE BOTH
APPROXIMATELY EQUAL.  (FN3) 

THE COMMISSION CHALLENGES THIS POSITION.  IT ASSERTS THAT, WHEN
MUTUALLY EXCLUSIVE APPLICANTS SEEK AUTHORITY TO SERVE DIFFERENT
COMMUNITIES, THE COMMISSION FIRST DETERMINES WHICH COMMUNITY HAS THE
GREATER NEED FOR ADDITIONAL SERVICES AND THEN DETERMINES WHICH
APPLICANT CAN BEST SERVE THAT COMMUNITY'S NEED.  OTHERWISE, ARGUES THE
COMMISSION, THE NEEDS OF THE COMMUNITY WOULD BE SUBORDINATED TO THE
ABILITY OF AN APPLICANT FOR ANOTHER LOCALITY.  THE POSITION OF THE
COMMISSION WAS MADE QUITE CLEAR IN ITS JUDGMENT ON ALLENTOWN'S PETITION
FOR REHEARING.  (FN4) 

WE AGREE WITH THE CONTENTION OF THE COMMISSION.  SECTION 307(B), NOTE
1, SUPRA, EMPOWERS THE COMMISSION TO ALLOW LICENSES SO AS TO PROVIDE A
FAIR DISTRIBUTION AMONG COMMUNITIES.  FAIRNESS TO COMMUNITIES IS
FURTHERED BY A RECOGNITION OF LOCAL NEEDS FOR A COMMUNITY RADIO
MOUTHPIECE.  THE DISTRIBUTION OF A SECOND LICENSE TO A COMMUNITY IN
ORDER TO SECURE LOCAL COMPETITION FOR ORIGINATING AND BROADCASTING
PROGRAMS OF LOCAL INTEREST APPEARS TO US TO BE LIKEWISE WITHIN THE
ALLOWABLE AREA OF DISCRETION.  THERE ARE OTHER INSTANCES OF COMMISSION
USE OF COMMUNITY ALLOCATION OF LICENSES TO SECURE LOCAL MEANS OF
EXPRESSION.  (FN5) 

THE RECORD OF THE SECOND HEARING SHOWS THAT THE COMMISSION HAD BEFORE
IT SUBSTANTIAL EVIDENCE TO SUPPORT ITS CONCLUSION AS TO EASTON'S NEED
AND ITS APPLICANT'S SUPERIOR CAPACITY TO SERVE THAT NEED.   IN
APPRAISING THE EVIDENCE AS TO THE DAY AND NIGHT EXISTING RADIO SERVICE
OF THE TWO COMMUNITIES, THEIR PROPOSED LOCAL PROGRAMS AND THEIR STAFFS,
THE COMMISSION CONCLUDED THAT THERE WAS LITTLE ROOM FOR CHOICE BETWEEN
COMMUNITIES EXCEPT FOR THE DECISIVE FACTOR OF EASTON'S NEED FOR A
COMPETITIVE STANDARD BROADCAST SERVICE THAT ALLENTOWN ALREADY HAD. 
SINCE ONLY THE EASTON APPLICANT PROPOSED TO ORIGINATE PROGRAMS IN AND
FOR EASTON, THE COMMISSION AWARDED THE LICENSE TO THAT APPLICANT. 

IN REACHING ITS CONCLUSION TO SET ASIDE THE COMMISSION'S ORDER
AWARDING THE LICENSE TO EASTON, THE COURT OF APPEALS FOUND THAT THE
COMMISSION'S REVERSAL OF ITS HEARING EXAMINER WAS ERRONEOUS.  THAT
COURT ANALYZED THE EVIDENCE BEFORE THE COMMISSION AS TO EASTON'S
UNCERTAINTY ON AFFILIATING WITH RADIO NETWORKS TO SECURE THEIR PROGRAMS
FOR ITS LISTENERS, THE RELUCTANCE, EVASIVENESS AND LACK OF CANDOR OF
EASTON'S PRINCIPAL WITNESSES AND THE CONCENTRATION OF LOCAL
COMMUNICATIONS MEDIA IN THE HANDS OF THE EASTON APPLICANT WHO WAS THE
PUBLISHER OF THE ONLY LOCAL NEWSPAPER, THE LICENSEE OF ONE OF TWO FM
RADIO STATIONS AND OF THE ONLY TELEVISION STATION.  THE COURT AGREED
WITH THE EXAMINER AND OVERRULED THE COMMISSION.  NONE OF THE ABOVE
CIRCUMSTANCES ARE IN THEMSELVES A BAR TO THE COMMISSION'S GRANT OF
LICENSE.  EACH INVOLVES APPRAISALS OF TESTIMONY THAT PUT INTO A RECORD
FACTS DERIVED FROM VARIOUS WITNESSES BY INTERROGATION.  THERE WAS
SUBSTANTIAL EVIDENCE CONSIDERING THE WHOLE RECORD THAT HAD TO BE
WEIGHED, PRO AND CON, AS TO TYPES OF PROGRAMS, EVASIVENESS OF
WITNESSES, AND THE DESIRABILITY OF ALLOCATING AN ADDITIONAL LICENSE TO
AN APPLICANT WHO ALREADY CONTROLLED OTHER MEANS OF COMMUNICATION. 

THE COURT OF APPEALS' CONCLUSION OF ERROR AS TO EVASIVENESS RELIES
LARGELY ON ITS UNDERSTANDING THAT THE EXAMINER'S FINDINGS BASED ON
DEMEANOR OF A WITNESS ARE NOT TO BE OVERRULED BY A BOARD WITHOUT A
"VERY SUBSTANTIAL PREPONDERANCE IN THE TESTIMONY AS RECORDED," CITING
LABOR BOARD V. UNIVERSAL CAMERA CORP., 190 F.2D 429, 430.  WE THINK
THIS ATTITUDE GOES TOO FAR.  IT SEEMS TO ADOPT FOR EXAMINERS OF
ADMINISTRATIVE AGENCIES THE "CLEARLY ERRONEOUS" RULE OF THE FED. RULES
CIV. PROC., 52(A), APPLICABLE TO COURTS.  IN UNIVERSAL CAMERA CORP. V.
LABOR BOARD, 340 U.S. 474, 492, WE SAID, AS TO THE LABOR MANAGEMENT
RELATIONS ACT HEARINGS: 

"SECTION 10(C) OF THE LABOR MANAGEMENT RELATIONS ACT PROVIDES THAT
'IF UPON THE PREPONDERANCE OF THE TESTIMONY TAKEN THE BOARD SHALL BE OF
THE OPINION THAT ANY PERSON NAMED IN THE COMPLAINT HAS ENGAGED IN OR IS
ENGAGING IN ANY SUCH UNFAIR LABOR PRACTICE, THEN THE BOARD SHALL STATE
ITS FINDINGS OF FACT  ...  .'  61 STAT. 147, 29 U.S.C. (SUPP. III) SEC.
160(C).  THE RESPONSIBILITY FOR DECISION THUS PLACED ON THE BOARD IS
WHOLLY INCONSISTENT WITH THE NOTION THAT IT HAS POWER TO REVERSE AN
EXAMINER'S FINDINGS ONLY WHEN THEY ARE 'CLEARLY ERRONEOUS.'  SUCH A
LIMITATION WOULD MAKE SO DRASTIC A DEPARTURE FROM PRIOR ADMINISTRATIVE
PRACTICE THAT EXPLICITNESS WOULD BE REQUIRED." 

THAT COMMENT IS HERE APPLICABLE.  SEE ALSO SEC. 8 OF THE
ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 242. 

THE FEDERAL COMMUNICATIONS ACT GIVES THE COMMISSION THE POWER OF
RULING ON FACTS AND POLICIES IN THE FIRST INSTANCE.  BUT ITS RULINGS
ARE SUBJECT TO REVIEW BY THE COURTS OF APPEALS WITHIN THE SCOPE DEFINED
BY UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, AND LABOR BOARD
V. PITTSBURGH STEAMSHIP CO., 340 U.S. 498.  THE CORRECTION OF ERRORS OF
LAW BY A COURT OF APPEALS ON REVIEW OF ADMINISTRATIVE AGENCIES IS
COMMITTED TO THIS COURT THROUGH ITS CERTIORARI JURISDICTION.  WE HAVE
FOUND SUCH ERRORS OF LAW IN THE DECISION OF THE COURT OF APPEALS. 
THEREFORE, THE DECISION BELOW CANNOT STAND.  BUT IT IS NOT OUR FUNCTION
TO REINSTATE THE DETERMINATION OF THE COMMISSION.  THAT WOULD MAKE THIS
COURT THE REVIEWING BODY OF THE ULTIMATE DETERMINATION OF THE
COMMISSION.  THE PROPER DISPOSITION IS TO REMAND THE CASE TO THE COURT
OF APPEALS FOR RECONSIDERATION OF THE RECORD BUT FREED FROM RULINGS
DECLARED ERRONEOUS IN THIS OPINION.  REVERSED. 

FN1  "IN CONSIDERING APPLICATIONS FOR LICENSES, AND MODIFICATIONS AND
RENEWALS THEREOF, WHEN AND INSOFAR AS THERE IS DEMAND FOR THE SAME, THE
COMMISSION SHALL MAKE SUCH DISTRIBUTION OF LICENSES, FREQUENCIES, HOURS
OF OPERATION, AND OF POWER AMONG THE SEVERAL STATES AND COMMUNITIES AS
TO PROVIDE A FAIR, EFFICIENT, AND EQUITABLE DISTRIBUTION OF RADIO
SERVICE TO EACH OF THE SAME."  47 U.S.C. SEC. 307(B). 

FN2  94 U.S. APP. D.C. - , - F.2D - , AS YET UNPUBLISHED. 

FN3  THE COURT SAID: 

"THIS 'CHOICE OF LOCAL SERVICE' PRINCIPLE IS A GLOSS ON SEC. 307(B)
OF THE COMMUNICATIONS ACT OF 1934, SUPRA.  IT WAS FIRST APPLIED BY THE
COMMISSION IN NORTHWESTERN OHIO BROADCASTING CORP., UPON THE CRUCIAL
FINDINGS THAT THE CHOICE BETWEEN THE TWO COMMUNITIES WAS 'INDEED A
DIFFICULT ONE,' AND THAT BOTH APPLICANTS 'PROPOSED TO RENDER
MERITORIOUS PROGRAM SERVICES DESIGNED TO MEET THE NEEDS OF THE
RESPECTIVE COMMUNITIES  ...  .'  SINCE WE AFFIRMED ON APPEAL BECAUSE
THERE WAS 'NO ERROR IN THE RECORD,' OUR APPROVAL OF THE 'CHOICE OF
LOCAL SERVICE' PRINCIPLE WAS LIMITED TO ITS APPLICATION IN
CIRCUMSTANCES OF OTHERWISE APPROXIMATELY EQUIVALENT COMMUNITY NEED AND
APPLICANT ABILITY TO SERVE SUCH NEED.  ALTHOUGH IN THE PRESENT CASE THE
COMMISSION PURPORTED TO FIND SUCH EQUIVALENCE, WE THINK THERE IS NO
SUBSTANTIAL EVIDENCE IN THE RECORD AS A WHOLE - INCLUDING THE HEARING
EXAMINER'S INITIAL DECISION - TO SUPPORT THE ESSENTIAL UNDERLYING
FINDING THAT THE ABILITY OF THE APPLICANTS TO SERVE THEIR RESPECTIVE
COMMUNITIES WAS ABOUT EQUAL.  HENCE, WE HOLD THE COMMISSION'S ERROR IS
FATAL TO THE ORDER UNDER REVIEW AND REQUIRES THAT THE CASE BE REMANDED
FOR RECONSIDERATION BY THE COMMISSION." 

FN4  "THIS IS NOT A CASE IN WHICH THE COMMISSION IS CALLED UPON TO
CONSIDER THE COMPARATIVE QUALIFICATIONS OF TWO OR MORE APPLICANTS
PROPOSING TO SERVE THE SAME COMMUNITY; INSTEAD, IT IS A CASE IN WHICH
ONE OF THE APPLICANTS PROPOSES TO SERVE EASTON, PENNSYLVANIA, AND THE
OTHER ALLENTOWN, PENNSYLVANIA AND NEITHER WOULD PROVIDE SERVICE TO THE
OTHER COMMUNITY.  UNDER SUCH CIRCUMSTANCES, THE PRIMARY DETERMINATION
TO BE MADE IS THAT REQUIRED BY SECTION 307(B) OF THE COMMUNICATIONS
ACT; NAMELY, HOW BEST TO DISTRIBUTE LICENSES AMONG THE SEVERAL STATES
AND COMMUNITIES AS 'TO PROVIDE A FAIR, EFFICIENT AND EQUITABLE
DISTRIBUTION OF RADIO SERVICE TO EACH OF THE SAME.'  IN THE PRESENT
CASE, HAVING DETERMINED THAT EASTON, PENNSYLVANIA WITH ONLY ONE
STANDARD BROADCAST STATION WAS IN SUBSTANTIALLY GREATER NEED OF A
SECOND LOCAL FACILITY THAN THE ALLENTOWN COMMUNITY WHICH ALREADY HAS
FOUR STANDARD BROADCAST STATIONS, WE WENT ON TO CONSIDER, IN ACCORDANCE
WITH THE MANDATE OF THE COURT OF APPEALS IN THE FIRST EASTON DECISION,
WHICH OF THE TWO APPLICANTS WOULD BEST SERVE THE NEEDS OF EASTON,
PENNSYLVANIA AND FOUND THAT THE EASTON PUBLISHING COMPANY WAS SUCH
APPLICANT."  9 PIKE & FISCHER RADIO REGULATION 889.  NOT YET OFFICIALLY
REPORTED. 

FN5  NEWARK BROADCASTING CORP., 11 F.C.C. 1269, 1271; NORTHWESTERN
OHIO BROADCASTING CORP., 3 PIKE & FISCHER RADIO REGULATION 1945, AFF'D,
SKY WAY BROADCASTING CORP. V. FEDERAL COMMUNICATIONS COMMISSION, 85
U.S. APP. D.C. 425, 176 F.2D 951; NEWNAN BROADCASTING CO., 11 F.C.C.
1369; LEE-SMITH BROADCASTING CO., 12 F.C.C. 589; FINGER LAKES
BROADCASTING SYSTEM, 11 F.C.C. 528; WMAK, INC., 11 F.C.C. 850; SOUTHERN
MEDIA CORP., 11 F.C.C. 688; LAKE HURON BROADCASTING CORP., 6 PIKE &
FISCHER RADIO REGULATION 1185; AND SEE VERMILION BROADCASTING CORP., 7
PIKE & FISCHER RADIO REGULATION 602(B).    MR. JUSTICE DOUGLAS
DISSENTS. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




WHITEHOUSE V. ILLINOIS CENTRAL RAILROAD CO. 349 U.S. 366 


NO. 131.  ARGUED FEBRUARY 10-11, 1955 - DECIDED JUNE 6, 1955 - 212 F.2D
22, REVERSED. 


THERE WAS SUBMITTED TO THE NATIONAL RAILROAD ADJUSTMENT BOARD A
DISPUTE BETWEEN A TELEGRAPHERS' UNION AND A RAILROAD REGARDING THE
LATTER'S EMPLOYMENT OF A MEMBER OF A CLERKS' UNION IN A POSITION WHICH
THE TELEGRAPHERS' UNION CLAIMED SHOULD BE ASSIGNED TO ONE OF ITS
MEMBERS.  NOTICE OF THE PROCEEDING WAS SERVED BY THE BOARD ON THE
RAILROAD AND THE TELEGRAPHERS' UNION BUT NOT ON THE CLERKS' UNION,
WHICH NOTIFIED THE RAILROAD THAT IT WOULD PROSECUTE A CLAIM IF ITS
RIGHTS WERE ADVERSELY AFFECTED BY DISPOSITION OF THE CLAIM OF THE
TELEGRAPHERS' UNION.  THE RAILROAD URGED THE BOARD TO GIVE THE CLERKS'
UNION AND ITS AFFECTED MEMBER NOTICE AND AN OPPORTUNITY TO BE HEARD;
BUT THIS REQUEST WAS DENIED.  PRIOR TO ANY DECISION BY THE BOARD ON THE
MERITS OF THE DISPUTE, THE RAILROAD SUED IN A FEDERAL DISTRICT COURT TO
REQUIRE THE BOARD TO SERVE NOTICE ON THE CLERKS' UNION AND ITS AFFECTED
MEMBER AND TO ENJOIN THE BOARD FROM DECIDING THE DISPUTE UNTIL THIS HAD
BEEN DONE.  THE RAILROAD URGED THAT IT MIGHT BE CONFRONTED WITH
CONFLICTING CLAIMS AND MIGHT SUFFER IRREPARABLE INJURY IF THE DISPUTE
WERE DECIDED WITHOUT PARTICIPATION OF THE CLERKS' UNION AND ITS
AFFECTED MEMBER.  HELD:  THE INJURIES ANTICIPATED BY THE RAILROAD ARE
TOO SPECULATIVE TO WARRANT RESORT TO EXTRAORDINARY REMEDIES, SUCH AS
INJUNCTION OR MANDAMUS.  PP. 367-374. 

WHITEHOUSE ET AL. V. ILLINOIS CENTRAL RAILROAD CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS SUIT AROSE OUT OF A PROCEEDING BEFORE THE NATIONAL RAILROAD
ADJUSTMENT BOARD.  A DISPUTE HAD ARISEN BETWEEN THE ORDER OF RAILROAD
TELEGRAPHERS (TELEGRAPHERS) AND THE ILLINOIS CENTRAL RAILROAD CO.
(RAILROAD) REGARDING THE LATTER'S EMPLOYMENT OF A MEMBER OF THE
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS
AND STATION EMPLOYEES (CLERKS) IN A POSITION WHICH TELEGRAPHERS CLAIMED
SHOULD, UNDER ITS COLLECTIVE BARGAINING AGREEMENT WITH RAILROAD, BE
ASSIGNED TO A MEMBER OF TELEGRAPHERS.  AFTER ATTEMPTED SETTLEMENT BY
NEGOTIATION HAD FAILED, TELEGRAPHERS SUBMITTED THE DISPUTE, IN
ACCORDANCE WITH THE RAILWAY LABOR ACT, 44 STAT. 577, AS AMENDED, 48
STAT. 926, 45 U.S.C. SEC. 151 ET SEQ., TO THE THIRD DIVISION OF THE
NATIONAL RAILROAD ADJUSTMENT BOARD.  NOTICE OF THE PROCEEDING WAS
SERVED BY THE BOARD ON TELEGRAPHERS AND RAILROAD.  RAILROAD WAS THEN
ADVISED BY LETTER THAT CLERKS WOULD PROSECUTE A CLAIM IN THE EVENT THAT
THE RIGHTS OF CLERKS UNDER THEIR AGREEMENT WITH RAILROAD WERE ADVERSELY
AFFECTED BY THE DISPOSITION OF TELEGRAPHERS' CLAIM.  RAILROAD FILED A
"SUBMISSION" WITH THE BOARD ASSERTING THAT THE DISPUTED POSITION
INVOLVED CLERICAL WORK OF THE TYPE CUSTOMARILY PERFORMED BY CLERICAL
FORCES IN THE INDUSTRY AND WAS IN FACT OCCUPIED BY A MEMBER OF CLERKS,
ONE SHEARS.  ACCORDINGLY, RAILROAD CONTENDED, TELEGRAPHERS' CLAIM
SHOULD BE DENIED, BUT IN ANY EVENT NOTICE AND OPPORTUNITY TO BE HEARD
SHOULD BE AFFORDED CLERKS AND SHEARS. 

THE TEN MEMBERS OF THE BOARD, FIVE REPRESENTING LABOR AND FIVE
REPRESENTING THE CARRIERS, DEADLOCKED ON THE MERITS AND A REFEREE WAS
APPOINTED AS A MEMBER OF THE BOARD, AGREEABLY TO SEC. 3 FIRST (1) OF
THE RAILWAY LABOR ACT.  WHEN TELEGRAPHERS' CLAIM CAME ON FOR HEARING ON
MAY 13, 1953, A CARRIER MEMBER OF THE BOARD OBJECTED THAT NO NOTICE HAD
BEEN SERVED ON CLERKS PURSUANT TO THE REQUIREMENT OF SEC. 3 FIRST (J)
OF THE ACT: 

"PARTIES MAY BE HEARD EITHER IN PERSON, BY COUNSEL, OR BY OTHER
REPRESENTATIVES, AS THEY MAY RESPECTIVELY ELECT, AND THE SEVERAL
DIVISIONS OF THE ADJUSTMENT BOARD SHALL GIVE DUE NOTICE OF ALL HEARINGS
TO THE EMPLOYEE OR EMPLOYEES AND THE CARRIER OR CARRIERS INVOLVED IN
ANY DISPUTES SUBMITTED TO THEM." 

THIS OBJECTION WAS CONSIDERED IN CAMERA BY THE REGULAR MEMBERS OF THE
BOARD, THE REFEREE HAVING BEEN EXCLUDED, AS THE DISTRICT COURT FOUND,
"IN ACCORDANCE WITH THE CUSTOM AND PRACTICE OF THE THIRD DIVISION."  AN
EVEN DIVISION RESULTED AND THE OBJECTION DID NOT CARRY.  AFTER THE
BOARD RECONVENED IN PUBLIC, AND IN THE PRESENCE OF THE REFEREE, WHO WAS
NOT REQUESTED TO AND DID NOT VOTE ON THIS ISSUE, THE CARRIER MEMBER
RECITED THAT THE MOTION HAD LOST AND REITERATED HIS OBJECTION, BUT THE
HEARING RESUMED. 

ON MAY 22, APPARENTLY AFTER THE HEARING HAD ENDED BUT PRIOR TO ANY
ANNOUNCEMENT OF A DECISION, RAILROAD FILED THE PRESENT ACTION AGAINST
THE BOARD AS SUCH, ITS INDIVIDUAL MEMBERS, AND THE REFEREE.  RAILROAD
ALLEGED THAT THE FAILURE TO GIVE NOTICE VIOLATED THE ACT AND THAT AN
AWARD TO TELEGRAPHERS WOULD NOT PREVENT CLERKS FROM PROSECUTING A
SIMILAR CLAIM SUCCESSFULLY.  THE COMPLAINT SOUGHT TEMPORARY AND
PERMANENT INJUNCTIONS DIRECTING THE BOARD TO ISSUE NOTICE TO CLERKS AND
SHEARS, AND RESTRAINING IT FROM PROCEEDING WITH ANY DISPOSITION OF THE
CLAIM UNTIL SUCH NOTICE HAD BEEN GIVEN.  TELEGRAPHERS, ON INTERVENTION,
CONTENDED, INTER ALIA, THAT THE MEANS OF REVIEW PRESCRIBED BY THE
RAILWAY LABOR ACT WAS EXCLUSIVE AND DEPRIVED THE DISTRICT COURT OF
JURISDICTION, THAT RAILROAD HAD FAILED TO EXHAUST ITS ADMINISTRATIVE
REMEDIES, THAT RAILROAD SHOWED NO INJURY, AND THAT, IN ANY EVENT, UNDER
THE ACT THE BOARD WAS NOT REQUIRED TO NOTIFY SHEARS AND CLERKS.  THE
BOARD MOVED TO DISMISS ON THE GROUND THAT THE ACTION WAS PREMATURE,
THAT OTHER ADEQUATE ADMINISTRATIVE AND JUDICIAL REMEDIES EXISTED AND
THAT RAILROAD WAS NOT THREATENED WITH IRREPARABLE INJURY.  (FN1) 

THE DISTRICT COURT HELD THAT SHEARS AND CLERKS WERE "EMPLOYEES
INVOLVED" WITHIN SEC. 3 FIRST (J), THAT IT WAS THE "CUSTOM AND
PRACTICE" OF THE THIRD DIVISION OF THE BOARD TO DENY NOTICE AND RIGHT
TO BE HEARD TO OTHERS THAN THE PARTIES TO THE SPECIFIC CLAIM BEFORE THE
BOARD, AND THAT FAILURE TO DO SO WAS A DENIAL OF DUE PROCESS TO THE
OTHER INTERESTED PERSONS AND DEPRIVED THE BOARD OF JURISDICTION.  IT
ISSUED A PRELIMINARY INJUNCTION RESTRAINING THE BOARD FROM PROCEEDING
FURTHER IN THE MATTER UNLESS FORMAL NOTICE WAS GIVEN TO SHEARS AND
CLERKS.  ON APPEAL BY TELEGRAPHERS AND THE LABOR MEMBERS OF THE BOARD,
THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT HELD THAT THERE COULD BE
"HARDLY ANY DOUBT" THAT CLERKS AND SHEARS WERE "INVOLVED" AND THAT ANY
AWARD RENDERED WITHOUT NOTICE TO THEM WOULD BE VOID AND UNENFORCEABLE. 
IT REJECTED THE CONTENTION THAT THIS ACTION WAS PREMATURE BECAUSE THE
AWARD MIGHT BE IN FAVOR OF RAILROAD OR THE PROCEEDING MIGHT BE
DISMISSED UPON THE DECIDING VOTE OF THE REFEREE BASED ON FAILURE TO
GIVE NOTICE.  THE COURT FOUND THAT THE BOARD HAD ALREADY REFUSED TO
GIVE NOTICE AND HELD THAT THE REFEREE HAD NO AUTHORITY TO CAST A VOTE
ON A "PROCEDURAL" MATTER.  SINCE NO ADMINISTRATIVE CHANNEL WAS FOUND
AVAILABLE FOR REVIEW OF THE FAILURE TO GIVE NOTICE, THE COURT HELD THAT
THERE WAS NO NEED TO AWAIT THE CONCLUSION OF PROCEEDINGS BEFORE THE
BOARD.  IRREPARABLE INJURY WAS FOUND IN THE FACT THAT RAILROAD WOULD BE
REQUIRED TO DEVOTE TIME AND MONEY TO WHAT IT DEEMED AN INVALID
PROCEEDING AND WAS FACED WITH THE THREAT OF A CONFLICTING PROCEEDING BY
CLERKS.  EMPHASIZING THAT THIS JUDICIAL PROCEEDING DID NOT CONSTITUTE
REVIEW OF AN AWARD, BUT WAS "IN THE NATURE OF MANDAMUS" TO COMPEL THE
BOARD TO PERFORM ITS DUTY, THE COURT OF APPEALS AFFIRMED, ONE JUDGE
DISSENTING.  212 F.2D 22.  WE GRANTED CERTIORARI BECAUSE SERIOUS
QUESTIONS CONCERNING THE ADMINISTRATION OF THE RAILWAY LABOR ACT ARE IN
ISSUE.  348 U.S. 809. 

WE HAVE BEEN URGED TO RESOLVE THE PRESENT DISPUTE REGARDING THE
REQUIREMENT OF NOTICE TO PERSONS NOT FORMAL PARTIES TO A SUBMISSION TO
THE BOARD, A DISPUTE WHICH HAS RESULTED IN NUMEROUS CONFLICTING
DECISIONS BY THE BOARD.  (FN2)  THIS REMAINS A PERPLEXING PROBLEM
DESPITE THE SUBSTANTIAL AGREEMENT AMONG COURTS OF APPEALS WHICH HAVE
CONSIDERED THE QUESTION IN HOLDING THAT NOTICE IS REQUIRED TO OTHER
PERSONS IN VARYING SITUATIONS.  (FN3)  THE WORDING OF THE NOTICE
PROVISION OF SEC. 3 FIRST (J) DOES NOT GIVE A CLEAR ANSWER.  IN THE
CONTEXT OF OTHER RELATED PROVISIONS IT IS CERTAINLY NOT OBVIOUS THAT IN
A SITUATION LIKE THAT NOW BEFORE US NOTICE NEED BE GIVEN BEYOND THE
PARTIES TO THE SUBMISSION.  SEE SEC. 3 FIRST (I), (L), (M).  ANALOGY TO
THE LAW OF PARTIES AS DEVELOPED FOR JUDICIAL PROCEEDINGS IS NOT
COMPELLING AND IN ANY EVENT DOES NOT APPROACH CONSTITUTIONAL
MAGNITUDE.  BOTH ITS HISTORY AND THE INTERESTS IT GOVERNS SHOW THE
RAILWAY LABOR ACT TO BE UNIQUE.  "THE RAILROAD WORLD IS LIKE A STATE
WITHIN A STATE.  ITS POPULATION OF SOME THREE MILLION, IF WE INCLUDE
THE FAMILIES OF WORKERS, HAS ITS OWN CUSTOMS AND ITS OWN VOCABULARY,
AND LIVES ACCORDING TO RULES OF ITS OWN MAKING."  GARRISON, THE
NATIONAL RAILROAD ADJUSTMENT BOARD:  A UNIQUE ADMINISTRATIVE AGENCY, 46
YALE L.J. 567, 568-569. 

WE HAVE ALSO BEEN URGED TO REVERSE THE HOLDING OF THE LOWER COURT
THAT A REFEREE MAY NEITHER BE APPOINTED TO RESOLVE A DEADLOCK ON THE
QUESTION OF NOTICE NOR, HAVING BEEN APPOINTED TO BREAK A DEADLOCK ON
THE MERITS, VOTE TO DISMISS THE PROCEEDING BECAUSE OF FAILURE TO GIVE
THE REQUIRED NOTICE.  AGAIN, WE HAVE BEEN ASKED TO JUDGE RAILROAD'S
PRESENT CLAIM TO RELIEF ON THE BASIS OF IRREPARABLE INJURIES WHICH ARE
ALLEGED TO FLOW FROM THE DILEMMA IN WHICH RAILROAD WILL FIND ITSELF IF
CONFRONTED EITHER BY AN INVALID AWARD OR A SITUATION IN WHICH NO VALID
AWARD MAY BE OBTAINED.  RAILROAD ASSERTS THAT THIS DILEMMA IS
INEVITABLE AND WILL ENTAIL CONTINUING INDUSTRIAL FRICTION, THE
POSSIBILITY OF CONFLICTING AWARDS TO BOTH UNIONS, AND ACCUMULATING
CLAIMS TO BACK PAY OR DAMAGES WHICH MIGHT HAVE BEEN AVOIDED HAD NOTICE
BEEN GIVEN AND A VALID AWARD BEEN RENDERED.  IF THE AWARD IS AGAINST
IT, RAILROAD CLAIMS THAT IT IS AT A LOSS TO KNOW WHETHER TO COMPLY AND
BE SUBJECTED BOTH TO SUITS TO ENJOIN COMPLIANCE AND FURTHER BOARD
PROCEEDINGS BY THE THIRD PARTY, OR TO REFUSE TO COMPLY AND ATTEMPT TO
DEFEND AN ENFORCEMENT PROCEEDING BROUGHT UNDER SEC. 3 FIRST (P). 

AT THE LOWEST IT IS DOUBTFUL WHETHER THESE HYPOTHETICAL INJURIES ARE
FAIRLY TO BE DEEMED IRREPARABLE AND WITHOUT OTHER ADEQUATE
ADMINISTRATIVE OR JUDICIAL REMEDY.  ASSUMING THAT THE ACT PERMITS THE
BOARD TO CONSIDER THE CLAIM OF ONE UNION IN THE LIGHT OF COMPETING
AGREEMENTS BETWEEN RAILROAD AND OTHER UNIONS, SEE ORDER OF RAILWAY
CONDUCTORS V. PITNEY, 326 U.S. 561, DOES IT PERMIT "FINAL AND BINDING"
AWARDS TO BE RENDERED INTERPRETING BOTH CONTRACTS AND RESOLVING THE
INDEPENDENT CLAIMS OF BOTH UNIONS IN A SINGLE PROCEEDING?  SEE SEC. 3
FIRST (M).  WHAT, BEYOND PROCEEDINGS UNDER THE ACT, MAY THIRD PARTIES
DO TO CHALLENGE AN AWARD IN WHICH THEY WERE IMPROPERLY NOT PERMITTED TO
PARTICIPATE?  COMPARE ELGIN, JOLIET & EASTERN R. CO. V. BURLEY, 325
U.S. 711, WITH GENERAL COMMITTEE V. MISSOURI-K.-T.R. CO., 320 U.S.
323.  TO WHAT EXTENT MAY DEFECTS IN AN AWARD BE CURED IN AN ENFORCEMENT
ACTION UNDER SEC. 3 FIRST (P), AND ARE THE DETRIMENTS WHICH ARE
ASSERTED TO FLOW FROM REFUSAL TO COMPLY AND RELIANCE UPON AN
ENFORCEMENT ACTION SUFFICIENT TO JUSTIFY JUDICIAL INTERVENTION?  CF.
FEDERAL TRADE COMMISSION V. CLAIRE FURNACE CO., 274 U.S. 160.  ONE
THING IS UNQUESTIONED.  WERE NOTICE GIVEN TO CLERKS THEY COULD BE
INDIFFERENT TO IT; THEY WOULD BE WITHIN THEIR LEGAL RIGHTS TO REFUSE TO
PARTICIPATE IN THE PRESENT PROCEEDING.  CLERKS HERE HAVE NOT ATTEMPTED
TO INTERVENE.  THEY HAVE MERELY STATED AN INTENTION TO BRING A SEPARATE
PROCEEDING IN CASE THEY ARE AFFECTED BY AN AWARD IN THIS CASE.  INDEED
RAILROAD REFERS TO AN UNDERSTANDING BETWEEN CLERKS AND TELEGRAPHERS
WHEREBY THE ONE WILL NOT INTERVENE IN PROCEEDINGS INITIATED BEFORE THE
BOARD BY THE OTHER, BUT WILL PRESS ITS CLAIMS INDEPENDENTLY.  AND
CLERKS HAVE JOINED IN A BRIEF OF AMICUS CURIAE WHICH ASSERTS THAT THIRD
PARTIES ARE NOT ENTITLED TO NOTICE.  WE WOULD THUS HAVE TO CONSIDER
WHETHER THOSE POTENTIAL INJURIES ALLEGED TO FLOW SOLELY FROM FAILURE OF
CLERKS TO PARTICIPATE MAY BE THE BASIS FOR JUDICIAL INTERVENTION WHERE
THERE IS NEITHER A LEGAL RIGHT OF THE COMPLAINING PARTY TO BE FREE FROM
SUCH INJURIES NOR ANY ASSURANCE THAT JUDICIAL ACTION WILL AFFORD
RELIEF. 

THESE ARE PERPLEXING QUESTIONS.  THEIR DIFFICULTY ADMONISHES US TO
OBSERVE THE WISE LIMITATIONS ON OUR FUNCTION AND TO CONFINE OURSELVES
TO DECIDING ONLY WHAT IS NECESSARY TO THE DISPOSITION OF THE IMMEDIATE
CASE.  HERE RELIEF IS SOUGHT PRIOR TO ANY DECISION ON THE MERITS BY THE
BOARD.  APART FROM SOME LOWER COURT'S DICTA, THERE IS NO REASON FOR
HOLDING, IN THE ABSTRACT, THAT ANY POSSIBLE AWARD WOULD BE RENDERED
VOID BY FAILURE TO GIVE NOTICE TO AN OUTSIDE EVEN IF RELATED INTEREST
THAT CANNOT BE COMPULSORILY JOINED AS A PARTY TO THE PROCEEDING.  THE
BOARD HAS JURISDICTION OVER THE ONLY NECESSARY PARTIES TO THE
PROCEEDING AND OVER THE SUBJECT MATTER.  IF FAILURE TO GIVE NOTICE BE
TREATED AS AN ERROR, IN AN AWARD IN FAVOR OF RAILROAD IT WOULD
CONSTITUTE AT BEST HARMLESS ERROR WHICH COULD NOT BE MADE THE BASIS OF
CHALLENGE BY RAILROAD, TELEGRAPHERS OR CLERKS.  RAILROAD'S RESORT TO
THE COURTS HAS PRECEDED ANY AWARD, AND ONE MAY BE RENDERED WHICH COULD
OCCASION NO POSSIBLE INJURY TO IT.  THE INEVITABLE RESULT IS TO DISRUPT
THE PROCEEDINGS OF THE BOARD.  ITS DECISION HAS ALREADY BEEN DELAYED
FOR MORE THAN TWO YEARS. 

IT MAY BE TRUE, AS THE COURT OF APPEALS OBSERVED, THAT THIS ACTION
MUST BE VIEWED AS "IN THE NATURE OF MANDAMUS" BECAUSE MERE INJUNCTIVE
RELIEF WOULD NOT PREVENT MOST OF THE INJURIES WHICH RAILROAD SEEKS TO
AVOID.  BUT MANDAMUS IS ITSELF GOVERNED BY EQUITABLE CONSIDERATIONS AND
IS TO BE GRANTED ONLY IN THE EXERCISE OF SOUND DISCRETION.  WE HOLD, IN
CONFORMITY WITH PAST DECISIONS, THAT THE INJURIES ARE TOO SPECULATIVE
TO WARRANT RESORT TO EXTRAORDINARY REMEDIES.  SEE ECCLES V. PEOPLE'S
BANK, 333 U.S. 426; PUBLIC SERVICE COMM'N V. WYCOFF CO., 344 U.S. 237;
UNITED STATES EX REL. CHICAGO G.W.R. CO. V. INTERSTATE COMMERCE
COMMISSION, 294 U.S. 50.  MOREOVER, AMONG THE INJURIES ASSERTED BY
RAILROAD, ONLY THE POSSIBILITY THAT IT IS BEING PUT TO NEEDLESS EXPENSE
INCIDENT TO THE PENDING BOARD PROCEEDING WILL NECESSARILY BE INVOLVED
IF JUDICIAL RELIEF IS DENIED AT THIS STAGE OF THE ADMINISTRATIVE
PROCESS.  SUCH EXPENSE IS INADEQUATE BASIS FOR INTERVENTION WHETHER BY
MANDAMUS OR INJUNCTION.  MYERS V. BETHLEHEM SHIPBUILDING CORP., 303
U.S. 41; UTAH FUEL CO. V. COAL COMM'N, 306 U.S. 56.  REVERSED. 

FN1  THE INDIVIDUAL MEMBERS OF THE BOARD ALSO FILED TWO DIAMETRICALLY
OPPOSITE ANSWERS TO THE COMPLAINT.  THE FIVE LABOR MEMBERS OBJECTED TO
THE GRANT OF A PRELIMINARY INJUNCTION ON GROUNDS SIMILAR TO THOSE PUT
FORTH BY TELEGRAPHERS; THE FIVE CARRIER MEMBERS GENERALLY AGREED WITH
THE POSITION OF RAILROAD AND SUPPORTED THE REQUEST FOR RELIEF.    FN2
E.G., COMPARE AWARD NO. 2253 (3D DIV., AUG. 10, 1943, H. NATHAN SWAIM,
REFEREE) WITH AWARD NO. 5432 (3D DIV., SEPT. 6, 1951, JAY S. PARKER,
REFEREE). 

FN3  SEE, E.G., NORD V. GRIFFIN, 86 F.2D 481 (C.A. 7TH CIR. 1936);
ESTES V. UNION TERMINAL CO., 89 F.2D 768 (C.A. 5TH CIR. 1937);
BROTHERHOOD OF RAILROAD TRAINMEN V. TEMPLETON, 181 F.2D 527 (C.A. 8TH
CIR. 1950); KIRBY V. PENNSYLVANIA R. CO., 188 F.2D 793 (C.A. 3D CIR.
1951); BUT CF.  ORDER OF RAILROAD TELEGRAPHERS V. NEW ORLEANS, T.&M.R.
CO., 156 F.2D 1 (C.A. 8TH CIR. 1946). 

MR. JUSTICE REED, MR. JUSTICE DOUGLAS AND MR. JUSTICE MINTON
DISSENT.    MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :


















WILLIAMS V. GEORGIA 349 U.S. 375 


NO. 412.  ARGUED APRIL 18, 1955 - DECIDED JUNE 6, 1955 - 210 GA. 665, 82
S.E.2D 217, REMANDED FOR RECONSIDERATION. 


PETITIONER IS A NEGRO WHO WAS CONVICTED BY AN ALL-WHITE JURY IN A
GEORGIA STATE COURT FOR MURDERING A WHITE MAN AND WAS SENTENCED TO
DEATH.  AFTER HIS CONVICTION HAD BEEN AFFIRMED BY THE STATE SUPREME
COURT, HE FILED IN THE TRIAL COURT AN EXTRAORDINARY MOTION FOR A NEW
TRIAL, CLAIMING FOR THE FIRST TIME THAT HIS CONVICTION WAS INVALID
BECAUSE OF UNCONSTITUTIONAL DISCRIMINATION AGAINST NEGROES IN THE
SELECTION OF THE JURY PANEL FROM WHICH THE JURY WHICH CONVICTED HIM HAD
BEEN DRAWN.  HE ALLEGED THAT THE METHOD OF SELECTING THE JURY PANEL WAS
THE SAME AS THAT WHICH WAS CONDEMNED IN AVERY V. GEORGIA, 345 U.S. 559;
BUT DISMISSAL OF HIS MOTION WAS SUSTAINED BY THE STATE SUPREME COURT OF
THE GROUND THAT, UNDER GEORGIA LAW, OBJECTION TO A JURY PANEL CAN BE
MADE ONLY AT THE TIME WHEN THE PANEL IS "PUT UPON" THE DEFENDANT AND
BEFORE TRIAL BEGINS AND THAT PETITIONER HAD NOT SHOWN SUFFICIENT EXCUSE
FOR HIS FAILURE TO OBJECT AT THAT TIME.  IN ORAL ARGUMENT BEFORE THIS
COURT, THE STATE CONCEDED THAT, AS A MATTER OF SUBSTANTIVE LAW,
PETITIONER HAD BEEN DEPRIVED OF HIS CONSTITUTIONAL RIGHTS.  HELD: 

1.  WHERE A STATE ALLOWS QUESTIONS OF THIS SORT TO BE RAISED AT A
LATE STAGE AND BE DETERMINED BY ITS COURTS AS A MATTER OF DISCRETION,
THIS COURT IS NOT PRECLUDED FROM ASSUMING JURISDICTION AND DECIDING
WHETHER THE STATE COURT'S ACTION IN THE PARTICULAR CIRCUMSTANCES IS, IN
EFFECT, AN AVOIDANCE OF THE FEDERAL RIGHT.  P. 383. 

2.  A REVIEW OF THE GEORGIA DECISIONS LEADS TO THE CONCLUSION THAT
THE TRIAL COURT AND THE STATE SUPREME COURT IN THIS CASE DECLINED TO
GRANT PETITIONER'S MOTION THOUGH POSSESSED OF THE POWER TO DO SO UNDER
STATE LAW.  PP. 383-389. 

3.  IN VIEW OF THE EXTRAORDINARY FACTS OF THIS CASE, ORDERLY
PROCEDURE REQUIRES A REMAND TO THE STATE SUPREME COURT FOR
RECONSIDERATION, AND IT IS SO REMANDED.  PP. 389-391. 

WILLIAMS V. GEORGIA. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE COURT HAS HERE UNDER REVIEW THE DECISION OF A STATE COURT
REJECTING A CLAIM OF INFIRMITY IN A CONVICTION FOR MURDER BASED ON A
CONSTITUTIONAL GROUND RAISED FOR THE FIRST TIME IN AN EXTRAORDINARY
PROCEEDING AFTER THE CONVICTION HAD BEEN AFFIRMED ON APPEAL.  RESPECT
FOR THE STATE'S ADMINISTRATION OF CRIMINAL JUSTICE REQUIRES A DETAILED
NARRATIVE OF THE PROCEDURAL COURSE OF THIS LITIGATION AND AN ADEQUATE
CONSIDERATION OF THE LEGAL FACTORS RELEVANT TO OUR DISPOSITION. 

PETITIONER, A NEGRO, WAS CONVICTED IN FULTON COUNTY, GEORGIA, OF THE
MURDER OF A WHITE MAN AND SENTENCED TO DEATH.  ACCORDING TO THE
ALLEGATIONS BEFORE US, THE PETIT JURY WHICH CONVICTED HIM WAS SELECTED
IN THE FOLLOWING MANNER: 

ON FEBRUARY 18, 1953, A JUDGE OF THE FULTON COUNTY SUPERIOR COURT
SELECTED FROM A BOX THE NAMES OF PROSPECTIVE JURORS.  THE NAMES OF
WHITE PERSONS WERE ON WHITE TICKETS AND THE NAMES OF NEGROES WERE ON
YELLOW TICKETS.  THE TICKETS WERE HANDED TO A DEPUTY SHERIFF, WHO IN
TURN GAVE THEM TO A DEPUTY CLERK FOR LISTING.  THE NAMED JURORS WERE
SUBSEQUENTLY SUMMONED, SOME WERE EXCUSED, AND THE REMAINING 120 WERE
AVAILABLE FOR THE TEN PANELS OF TWELVE JURORS EACH TO SERVE IN THE
TRIAL OF CIVIL AND CRIMINAL CASES IN THE FULTON COUNTY SUPERIOR COURT
FOR THE WEEK OF MARCH 9, 1953.  OF THE 120 JURORS, FOUR WERE NEGROES,
AND ALL FOUR WERE ASSIGNED TO THE CRIMINAL DOCKET. 

ON MARCH 10, 1953, A PANEL OF 48 OF THE 120 JURORS WAS "PUT UPON"
WILLIAMS AT HIS TRIAL.  THIRTEEN JURORS, INCLUDING THREE OF THE FOUR
NEGROES, WERE EXCUSED FOR CAUSE.  THE STATE PEREMPTORILY CHALLENGED THE
FOURTH NEGRO, SO THAT NO NEGROES SERVED ON THE JURY OF TWELVE WHICH WAS
FINALLY SELECTED TO TRY WILLIAMS. 

THE TRIAL, WHICH IMMEDIATELY FOLLOWED THE SELECTION OF THE JURY,
LASTED ONE DAY.  TWENTY-THREE WITNESSES APPEARED AGAINST WILLIAMS.  HIS
ONLY DEFENSE WAS A SHORT UNSWORN STATEMENT TO THE EFFECT THAT HE HAD
NOT COMMITTED THE CRIME AND THAT HE HAD BEEN "AFRAID" WHEN HE SIGNED
THE WRITTEN CONFESSION INTRODUCED AGAINST HIM. 

WILLIAMS' COURT-APPOINTED ATTORNEY FILED A FORMAL MOTION FOR A NEW
TRIAL ON MARCH 27, 1953, AND A MORE DETAILED AMENDMENT TO THE MOTION ON
JUNE 29, 1953.  THE MOTION WAS OVERRULED, AND AN APPEAL TO THE GEORGIA
SUPREME COURT FOLLOWED.  ON OCTOBER 14, 1953, THAT COURT AFFIRMED THE
JUDGMENT.  210 GA. 207, 78 S.E.2D 521. 

ON DECEMBER 1, 1953, WILLIAMS' COUNSEL FILED IN THE TRIAL COURT AN
EXTRAORDINARY MOTION FOR NEW TRIAL UNDER GA. CODE ANN., SEC. 70-303. 
(FN1)  IN THIS MOTION HE ALLEGED FOR THE FIRST TIME THAT WILLIAMS HAD
BEEN DENIED EQUAL PROTECTION OF THE LAWS UNDER THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION BY THE MANNER IN WHICH THE PETIT JURY
HAD BEEN SELECTED, ORGANIZED, IMPANELED AND CHALLENGED.  AN AFFIDAVIT
BY WILLIAMS ACCOMPANIED THE MOTION, STATING THAT AT THE TIME OF TRIAL
HE HAD NO KNOWLEDGE OF THE METHODS USED TO SELECT THE JURY.  A SIMILAR
AFFIDAVIT BY HIS COUNSEL STATED FURTHER THAT "THE SAME COULD NOT HAVE
BEEN DISCOVERED BY HIM (THE COUNSEL) IN THE EXERCISE OF ORDINARY
DILIGENCE."  THE LAW PARTNER OF WILLIAMS' COUNSEL SUBMITTED A THIRD
AFFIDAVIT TO THE EFFECT THAT HE HAD TAKEN NO PART IN THE TRIAL OR IN
ITS PREPARATION. 

ON JANUARY 18, 1954, THE TRIAL COURT DISMISSED THE EXTRAORDINARY
MOTION FOR NEW TRIAL.  AN APPEAL WAS TAKEN TO THE GEORGIA SUPREME
COURT.  IN THE APPEAL, RELIANCE WAS PLACED ALMOST EXCLUSIVELY UPON THE
CASE OF AVERY V. GEORGIA, 345 U.S. 559, FOR THE CLAIM THAT WILLIAMS HAD
BEEN DENIED EQUAL PROTECTION OF THE LAWS.  THE PERTINENCE OF THAT CASE
TO THIS TURNS ON THE TIME SEQUENCE IN THE TWO CASES (FN2) AS WELL AS ON
THE RELEVANT SUBSTANTIVE FACTS. 

AVERY WAS CONVICTED OF RAPE ON SEPTEMBER 20, 1951, IN FULTON COUNTY,
GEORGIA - THE SAME COUNTY IN WHICH WILLIAMS WAS TRIED A YEAR AND A HALF
LATER.  AVERY'S PETIT JURY WAS DRAWN WITH YELLOW AND WHITE TICKETS,
PRECISELY IN THE MANNER USED LATER IN THE CASE OF WILLIAMS.  IN AVERY'S
CASE, NO NEGROES APPEARED ON THE LIST OF 60 JURORS PUT UPON HIM AT THE
TRIAL, WHEREAS HERE, FOUR NEGROES APPEARED ON THE LIST OF 120 JURORS
FROM WHICH WILLIAMS' JURY WAS SELECTED.  AVERY, HOWEVER, CHALLENGED THE
ARRAY WHEN THE JURY WAS PUT UPON HIM; WILLIAMS DID NOT.  AVERY'S
CHALLENGE WAS OVERRULED, AND AFTER TRIAL HE APPEALED ON THE GROUND OF
DISCRIMINATION IN THE SELECTION OF THE JURY.   THE GEORGIA SUPREME
COURT DISAPPROVED OF THE USE OF YELLOW AND WHITE TICKETS BUT AFFIRMED
THE JUDGMENT ON THE GROUND THAT NO DISCRIMINATION WAS ACTUALLY SHOWN. 
(FN3) 

CERTIORARI IN THE AVERY CASE WAS FILED IN THIS COURT ON JULY 28,
1952, NINE WEEKS BEFORE THE ALLEGED MURDER IN THE WILLIAMS CASE.  THE
GROUND, AS HERE, WAS THAT THE USE OF DIFFERENT-COLORED TICKETS FOR
WHITES AND NEGROES DEPRIVED THE DEFENDANT OF EQUAL PROTECTION OF THE
LAWS.  AVERY'S PETITION FOR CERTIORARI WAS GRANTED MARCH 9, 1953, THE
DAY BEFORE THE PETIT JURY WAS PUT UPON WILLIAMS.  THIS COURT REVERSED
THE AVERY CASE ON MAY 25, 1953, HOLDING THAT AVERY HAD MADE OUT A PRIMA
FACIE CASE OF AN UNCONSTITUTIONAL DISCRIMINATION BY SHOWING THE USE OF
DIFFERENT-COLORED TICKETS WHICH THE STATE HAD NOT REBUTTED. 

WHILE THIS COURT'S DECISION IN THE AVERY CASE WAS THUS RENDERED OVER
TWO MONTHS AFTER WILLIAMS' TRIAL, IT CAME A MONTH BEFORE THE AMENDMENT
TO HIS FORMAL MOTION FOR NEW TRIAL.  YET WILLIAMS' COUNSEL DID NOT RELY
UPON THE GROUND RAISED BY THE AVERY DECISION UNTIL SOME SIX MONTHS
LATER IN HIS EXTRAORDINARY MOTION FOR NEW TRIAL. 

AS ALREADY STATED, THE EXTRAORDINARY MOTION WAS DISMISSED BY THE
TRIAL COURT, AND WILLIAMS AGAIN APPEALED TO THE GEORGIA SUPREME COURT. 
THAT COURT AFFIRMED THE DISMISSAL OF THE EXTRAORDINARY MOTION.  THE
COURT CONCLUDED THAT WILLIAMS, HAVING FAILED TO CHALLENGE THE ARRAY
WHEN PUT UPON HIM, HAD WAIVED ANY OBJECTIONS TO THE JURY'S SELECTION. 
THE AFFIDAVITS OF WILLIAMS, HIS COUNSEL, AND HIS COUNSEL'S PARTNER WERE
DEEMED INSUFFICIENT TO EXCUSE WILLIAMS' FAILURE TO CHALLENGE THE ARRAY
AT THE OUTSET OF THE TRIAL. 

THE COURT DID NOT REST ON THIS CONSIDERATION.  IT URGED THAT THE
FACTS INHERENT IN THE CASE CONTRADICTED THE AFFIDAVITS.  THE COURT SAID
THAT ITS OWN DECISION IN THE AVERY CASE, PRIOR TO THE WILLIAMS TRIAL,
HAD FULLY SET OUT THE PRACTICE OF USING DIFFERENT-COLORED TICKETS IN
THE SELECTION OF JURIES.  "DUE DILIGENCE WOULD CERTAINLY HAVE REQUIRED
THE DEFENDANT AND HIS ATTORNEY TO MAKE THEMSELVES FAMILIAR WITH THE
OPINIONS OF THIS COURT ON THE QUESTION NOW RAISED.  IT FOLLOWS THAT,
FOR THIS REASON, THE MOTION FOR NEW TRIAL WAS NOT SUFFICIENT AS AN
EXTRAORDINARY MOTION FOR NEW TRIAL."  210 GA. 665, 668, 82 S.E.2D 217,
219. 

IN VIEW OF THE ENTANGLEMENT OF THIS CASE WITH OUR DECISION IN AVERY,
WE GRANTED CERTIORARI.  348 U.S. 854.  SINCE THE ATTORNEY APPOINTED BY
THE GEORGIA COURT ADVISED THE CLERK OF THIS COURT THAT HE WOULD NOT BE
IN A POSITION TO PRESENT ORAL ARGUMENT BEFORE THIS COURT, (FN4) WE
APPOINTED AMICUS CURIAE TO PRESENT ARGUMENT ON WILLIAMS' BEHALF.  348
U.S. 957.   IN HIS BRIEF ON BEHALF OF THE STATE BEFORE THE STATE
SUPREME COURT, THE SOLICITOR GENERAL OF FULTON COUNTY HAD URGED, INTER
ALIA, THAT THERE WAS NO SHOWING OF A DENIAL OF EQUAL PROTECTION IN THIS
CASE.  (FN5)  ON ORAL ARGUMENT HERE, HOWEVER, THE STATE, WITH
COMMENDABLE REGARD FOR ITS RESPONSIBILITY, AGREED THAT THE USE OF
YELLOW AND WHITE TICKETS IN THIS CASE WAS, IN LIGHT OF THIS COURT'S
DECISION IN AVERY, A DENIAL OF EQUAL PROTECTION, SO THAT A NEW TRIAL
WOULD BE REQUIRED BUT FOR THE FAILURE TO CHALLENGE THE ARRAY.  WE NEED
ONLY ADD THAT IT WAS THE SYSTEM OF SELECTION AND THE RESULTING DANGER
OF ABUSE WHICH WAS STRUCK DOWN IN AVERY AND NOT AN ACTUAL SHOWING OF
DISCRIMINATION ON THE BASIS OF COMPARATIVE NUMBERS OF NEGROES AND
WHITES ON THE JURY LISTS.  THE QUESTION NOW BEFORE US, IN VIEW OF THE
STATE'S CONCESSION, IS WHETHER THE RULING OF THE GEORGIA SUPREME COURT
RESTS UPON AN ADEQUATE NONFEDERAL GROUND, SO THAT THIS COURT IS WITHOUT
JURISDICTION TO REVIEW THE GEORGIA COURT. 

A STATE PROCEDURAL RULE WHICH FORBIDS THE RAISING OF FEDERAL
QUESTIONS AT LATE STAGES IN THE CASE, OR BY ANY OTHER THAN A PRESCRIBED
METHOD, HAS BEEN RECOGNIZED AS A VALID EXERCISE OF STATE POWER.  (FN6)
THE PRINCIPLE IS CLEAR ENOUGH.  BUT THE UNIQUE ASPECTS OF THE NEVER
ENDING NEW CASES THAT ARISE REQUIRE ITS INDIVIDUAL APPLICATION TO
PARTICULAR CIRCUMSTANCES.  THUS, WE WOULD HAVE A DIFFERENT QUESTION
FROM THAT BEFORE US IF THE TRIAL COURT HAD NO POWER TO CONSIDER
WILLIAMS' CONSTITUTIONAL OBJECTION AT THE BELATED TIME HE RAISED IT.
BUT, WHERE A STATE ALLOWS QUESTIONS OF THIS SORT TO BE RAISED AT A LATE
STAGE AND BE DETERMINED BY ITS COURTS AS A MATTER OF DISCRETION, WE ARE
NOT CONCLUDED FROM ASSUMING JURISDICTION AND DECIDING WHETHER THE STATE
COURT ACTION IN THE PARTICULAR CIRCUMSTANCES IS, IN EFFECT, AN
AVOIDANCE OF THE FEDERAL RIGHT.  (FN7)  A STATE COURT MAY NOT, IN THE
EXERCISE OF ITS DISCRETION, DECLINE TO ENTERTAIN A CONSTITUTIONAL CLAIM
WHILE PASSING UPON KINDRED ISSUES RAISED IN THE SAME MANNER. 

THE GEORGIA COURTS HAVE INDICATED MANY TIMES THAT MOTIONS FOR NEW
TRIAL AFTER VERDICT ARE NOT FAVORED, AND THAT EXTRAORDINARY MOTIONS FOR
NEW TRIAL AFTER FINAL JUDGMENT ARE FAVORED EVEN LESS.  (FN8)  BUT THE
GEORGIA STATUTE PROVIDES FOR SUCH MOTION, (FN9) AND IT HAS BEEN GRANTED
IN "EXCEPTIONAL" OR "EXTRAORDINARY" CASES.  THE GENERAL RULE IS THAT
THE GRANTING OR DENYING OF AN EXTRAORDINARY MOTION FOR NEW TRIAL RESTS
PRIMARILY IN THE DISCRETION OF THE TRIAL COURT, AND THE APPELLATE COURT
WILL NOT REVERSE EXCEPT FOR A CLEAR ABUSE OF DISCRETION.  (FN10)  IN
PRACTICE, HOWEVER, THE GEORGIA APPELLATE COURTS HAVE NOT HESITATED TO
REVERSE AND GRANT A NEW TRIAL IN EXCEPTIONAL CASES.  FOR EXAMPLE: 

IN WRIGHT V. DAVIS, 184 GA. 846, 193 S.E. 757 (1937), THE DEFENDANT
WAS SENTENCED TO DEATH, HIS MOTION FOR NEW TRIAL WAS OVERRULED, AND THE
JUDGMENT WAS AFFIRMED ON APPEAL BY THE GEORGIA SUPREME COURT.  THREE
MONTHS AFTER THE AFFIRMANCE THE DEFENDANT MADE AN EXTRAORDINARY MOTION
FOR NEW TRIAL ON THE GROUND THAT AN EX-CONVICT HAD OBTAINED A SEAT ON
THE JURY BY IMPERSONATING HIS FATHER, WHOSE NAME WAS PROPERLY ON THE
JURY LIST.  THE TRIAL COURT DENIED THE EXTRAORDINARY MOTION.  THE
GEORGIA SUPREME COURT GRANTED MANDAMUS AND MADE IT ABSOLUTE.  IT SAID: 

"IN THE INSTANT CASE WE ARE OF THE OPINION THAT THE EXTRAORDINARY
MOTION FOR A NEW TRIAL AND THE PROFFERED AMENDMENT PRESENTED A STATE OF
FACTS WHICH, STANDING WITHOUT DISPUTE, REQUIRED AS A MATTER OF LAW THAT
A NEW TRIAL SHOULD BE GRANTED  ...  . 

"  ...  THE VERDICT ITSELF SHOWS THAT THE DEFENDANT WAS NOT
BENEFITED, AS HE RECEIVED THE EXTREME PENALTY, AND IT IS CLEAR THAT HE
WAS DEPRIVED OF HIS RIGHT TO HAVE A JURY COMPOSED ENTIRELY OF UPRIGHT
MEN.  CODE, SECS. 2-4502, 59-106.  IT WILL NOT DO TO SPECULATE ON
WHETHER THE ACCUSED SUFFERED ACTUAL INJURY, WHEN SO VITAL A RIGHT HAS
BEEN VIOLATED.  THERE ARE SOME CONDITIONS FROM WHICH INJURY WILL BE
PRESUMED  ...  ."  (184 GA., AT 851, 853, 193 S.E., AT 760.) 

THE COURT REJECTED THE STATE'S CONTENTION THAT THE DEFENDANT HAD NOT
SHOWN DUE DILIGENCE IN DISCOVERING THE JUROR'S DISQUALIFICATION. 
(FN11) 

SMITH V. GEORGIA, 2 GA. APP. 574, 59 S.E. 311 (1907), INVOLVED A
CONVICTION FOR ARSON.  A MOTION FOR NEW TRIAL WAS DENIED, THE JUDGMENT
WAS AFFIRMED ON APPEAL, AND FIVE MONTHS LATER THE DEFENDANT FILED AN
EXTRAORDINARY MOTION FOR NEW TRIAL ON THE GROUND THAT ONE OF THE JURORS
WAS RELATED TO THE DECEASED WIFE OF THE PROSECUTOR WITHIN THE NINTH
DEGREE, AND SEVERAL OF THE PROSECUTOR'S CHILDREN CONTINUED THE KINSHIP
BY AFFINITY.  THE TRIAL COURT DENIED THE MOTION, BUT THE APPELLATE
COURT GRANTED A NEW TRIAL.  IT SAID: 

"  ...  THERE IS NO HIGHER PURPOSE TO BE SUBSERVED IN THE
ADMINISTRATION OF THE CRIMINAL LAW THAN THAT EVERY DEFENDANT SHALL BE
ACCORDED A TRIAL BY JURY, AND JURY TRIAL IS A MOCKERY UNLESS THE JURY
BE NOT ONLY IMPARTIAL BUT ALSO BEYOND JUST SUSPICION OF PARTIALITY  ...
."  (2 GA.  APP., AT 578, 59 S.E., AT 313.) 

IN ANSWER TO THE STATE'S CONTENTION THAT THE DEFENDANT AND HIS
ATTORNEY HAD NOT SHOWN DUE DILIGENCE IN DISCOVERING THE PROHIBITED
RELATIONSHIP, THE COURT SAID THAT THE TRIAL JUDGE HAD INQUIRED INTO THE
QUESTION OF RELATIONSHIP WHEN THE JURY WAS IMPANELED, AND THEN THE
COURT ADDED THIS QUOTATION FROM A GEORGIA SUPREME COURT OPINION: 

"  ...  'PARTIES ARE NOT REQUIRED TO MAKE SEARCHING INVESTIGATION OUT
OF COURT TO DETERMINE WHETHER THE JURORS WHO ARE SUMMONED ARE
DISQUALIFIED IN THEIR CASES.  NOT ONLY IS SUCH A DUTY NOT PLACED BY THE
LAW UPON PARTIES AND THEIR COUNSEL, BUT THE CONTRARY PRACTICE IS TO BE
ENCOURAGED, FOR OBVIOUS REASONS.'"  (2 GA. APP., AT 582, 59 S.E., AT
315.) 

IN CRAWLEY V. GEORGIA, 151 GA. 818, 108 S.E. 238 (1921), FOUR
DEFENDANTS WERE CONVICTED OF MURDER.   TWO WERE SENTENCED TO DEATH AND
TWO TO LIFE IMPRISONMENT.  A MOTION FOR NEW TRIAL WAS OVERRULED, THE
JUDGMENT WAS AFFIRMED ON APPEAL, A MOTION FOR REHEARING WAS DENIED, AND
A WEEK LATER THE DEFENDANTS FILED AN EXTRAORDINARY MOTION FOR NEW
TRIAL, WHICH THE TRIAL COURT OVERRULED.  THE GEORGIA SUPREME COURT
REVERSED.  THE EXTRAORDINARY MOTION SHOWED THAT THE WIFE OF ONE JUROR
WAS WITHIN THE NINTH DEGREE OF RELATIONSHIP TO THE WIFE OF THE MURDERED
MAN.  A NEW TRIAL WAS GRANTED EVEN THOUGH THE STATE SUBMITTED AN
AFFIDAVIT BY THE JUROR THAT HE DID NOT KNOW OF THE RELATIONSHIP AT THE
TIME OF THE TRIAL AND THEREFORE COULD NOT HAVE BEEN PREJUDICED. 
(FN12)    IN DOYAL V. GEORGIA, 73 GA. 72 (1884), THE DEFENDANT WAS
CONVICTED OF MURDER.  HIS MOTION FOR NEW TRIAL WAS DENIED, AND THE
JUDGMENT WAS AFFIRMED ON APPEAL.  HE FILED AN EXTRAORDINARY MOTION FOR
NEW TRIAL ON THE GROUND THAT FIVE WITNESSES WERE READY TO TESTIFY THAT
ONE OF THE JURORS HAD SAID IN EFFECT BEFORE THE TRIAL THAT THE
DEFENDANT OUGHT TO BE HUNG AND THAT THE JUROR WOULD SEE TO IT IF HE GOT
ON THE JURY.  THE DEFENDANT AND HIS ATTORNEY FILED AFFIDAVITS TO THE
EFFECT THAT THEY HAD BEEN IGNORANT OF THE FACTS AT THE TIME OF TRIAL. 
DESPITE AFFIDAVITS SUBMITTED BY THE STATE SHOWING THE AVAILABILITY OF
THREE OF THE FIVE WITNESSES AT THE TIME OF TRIAL, THE GEORGIA SUPREME
COURT GRANTED A NEW TRIAL.  (FN13) 

THERE ARE OTHER CASES OF LIKE TENOR.  (FN14) 

ALL THESE CASES (BARRING HARRIS V. GEORGIA, N. 14) INVOLVED
OBJECTIONS TO INDIVIDUAL JURORS, AS CONTRASTED WITH THE OBJECTION TO
THE WHOLE PANEL IN THIS CASE.  BUT THE TWO SITUATIONS CANNOT
DISTINGUISHED ON THIS GROUND.  GEORGIA HAS A RULE, AS THE STATE SUPREME
COURT NOTED IN THIS CASE, THAT AN OBJECTION TO THE WHOLE PANEL MUST BE
MADE BY WAY OF A CHALLENGE TO THE ARRAY AT THE TIME THE PANEL IS PUT
UPON THE DEFENDANT.  CORNELIOUS V. GEORGIA, 193 GA. 25, 17 S.E.2D 156
(1941); WILCOXON V. ALDREDGE, 192 GA. 634, 15 S.E.2D 873 (1941);
CUMMING V. GEORGIA, 155 GA. 346, 117 S.E. 378 (1923); LUMPKIN V.
GEORGIA, 152 GA. 229, 109 S.E. 664 (1921).  (FN15)  BUT NONE OF THESE
CASES DECLARE THAT AN EXTRAORDINARY MOTION IS NOT AVAILABLE IN A PROPER
CASE FOR GRANTING A NEW TRIAL WHEN THE OBJECTION IS TO THE PANEL.  ON
THE CONTRARY, SEVERAL FACTORS INDICATE THAT THE TRIAL JUDGE AND THE
APPELLATE COURT HAVE THE SAME DEGREE OF DISCRETION IN THE "ARRAY" CASES
AS IN CASES INVOLVING INDIVIDUAL JURORS.  FIRST:  THERE IS ALSO A RULE
IN GEORGIA THAT AN OBJECTION TO AN INDIVIDUAL JUROR MUST BE MADE AT THE
TRIAL BY A CHALLENGE TO THE POLL.  (FN16)  BUT AS THE CASES ABOVE
DEMONSTRATE, THIS RULE GIVES WAY IN AN EXCEPTIONAL CASE TO THE NEED FOR
A NEW TRIAL SHOWN BY EXTRAORDINARY MOTION.  IT DOES NOT APPEAR RATIONAL
TO DENY THAT THE RULE AS TO CHALLENGES TO THE ARRAY IS LIKEWISE NOT
INFLEXIBLE.  SECOND:  THE OPINION OF THE GEORGIA SUPREME COURT IN THIS
CASE SUPPORTS THIS CONCLUSION.  IF THE TRIAL COURT HAD NO POWER TO
ENTERTAIN THE MOTION, IT WAS IMMATERIAL WHETHER THE AFFIDAVITS WERE
FAULTY.  YET THE SUPREME COURT FELT CALLED UPON TO QUESTION THE
RELIABILITY OF THE AFFIDAVITS, CONCLUDING THAT WILLIAMS' COUNSEL MUST
HAVE FAILED TO USE DUE DILIGENCE AND "FOR THIS REASON" THE MOTION WAS
"NOT SUFFICIENT."  (FN17) 

WE CONCLUDE THAT THE TRIAL COURT AND THE STATE SUPREME COURT DECLINED
TO GRANT WILLIAMS' MOTION THOUGH POSSESSED OF POWER TO DO SO UNDER
STATE LAW.  SINCE HIS MOTION WAS BASED UPON A CONSTITUTIONAL OBJECTION,
AND ONE THE VALIDITY OF WHICH HAS IN PRINCIPLE BEEN SUSTAINED HERE, THE
DISCRETIONARY DECISION TO DENY THE MOTION DOES NOT DEPRIVE THIS COURT
OF JURISDICTION TO FIND THAT THE SUBSTANTIVE ISSUE IS PROPERLY BEFORE
US. 

BUT THE FACT THAT WE HAVE JURISDICTION DOES NOT COMPEL US TO EXERCISE
IT.  IN PATTERSON V. ALABAMA, 294 U.S. 600, WE REMANDED A CASE TO THE
HIGHEST COURT OF THE STATE, EVEN THOUGH THAT COURT HAD AFFIRMED ON
STATE PROCEDURAL GROUNDS, BECAUSE AFTER THAT AFFIRMANCE WE HAD REVERSED
ON CONSTITUTIONAL GROUNDS A CASE HAVING IDENTICAL SUBSTANTIVE FACTS. 
WE SAID THERE:  "WHILE WE MUST HAVE PROPER REGARD TO THIS RULING OF THE
STATE COURT IN RELATION TO ITS APPELLATE PROCEDURE, WE CANNOT IGNORE
THE EXCEPTIONAL FEATURES OF THE PRESENT CASE.  AN IMPORTANT QUESTION
UNDER THE FEDERAL CONSTITUTION WAS INVOLVED, AND, FROM THAT STANDPOINT,
THE CASE DID NOT STAND ALONE  ...  . 

"  ...  WE ARE NOT SATISFIED THAT THE COURT WOULD HAVE DEALT WITH THE
CASE IN THE SAME WAY IF IT HAD DETERMINED THE CONSTITUTIONAL QUESTION
AS WE HAVE DETERMINED IT  ...  . 

"WE HAVE FREQUENTLY HELD THAT IN THE EXERCISE OF OUR APPELLATE
JURISDICTION WE HAVE POWER NOT ONLY TO CORRECT ERROR IN THE JUDGMENT
UNDER REVIEW BUT TO MAKE SUCH DISPOSITION OF THE CASE AS JUSTICE
REQUIRES.  AND IN DETERMINING WHAT JUSTICE DOES REQUIRE, THE COURT IS
BOUND TO CONSIDER ANY CHANGE, EITHER IN FACT OR IN LAW, WHICH HAS
SUPERVENED SINCE THE JUDGMENT WAS ENTERED.  WE MAY RECOGNIZE SUCH A
CHANGE, WHICH MAY AFFECT THE RESULT, BY SETTING ASIDE THE JUDGMENT AND
REMANDING THE CASE SO THAT THE STATE COURT MAY BE FREE TO ACT.  WE HAVE
SAID THAT TO DO THIS IS NOT TO REVIEW, IN ANY PROPER SENSE OF THE TERM,
THE DECISION OF THE STATE COURT UPON A NON-FEDERAL QUESTION, BUT ONLY
TO DEAL APPROPRIATELY WITH A MATTER ARISING SINCE ITS JUDGMENT AND
HAVING A BEARING UPON THE RIGHT DISPOSITION OF THE CASE  ...  ."  (294
U.S., AT 605, 606, 607.) 

IN THE INSTANT CASE, THERE IS AN IMPORTANT FACTOR WHICH HAS
INTERVENED SINCE THE AFFIRMANCE BY THE GEORGIA SUPREME COURT WHICH
IMPELS US TO REMAND FOR THAT COURT'S FURTHER CONSIDERATION.  THIS IS
THE ACKNOWLEDGEMENT BY THE STATE BEFORE THIS COURT THAT, AS A MATTER OF
SUBSTANTIVE LAW, WILLIAMS HAS BEEN DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS.  THE SOLICITOR GENERAL OF FULTON COUNTY, IT SHOULD BE RECALLED,
HAD URGED BEFORE THE GEORGIA SUPREME COURT THAT NO DENIAL OF EQUAL
PROTECTION WAS INVOLVED, AND THAT COURT MAY WELL HAVE BEEN INFLUENCED
BY THE CONTENTION.  MOREOVER, IF THERE IS ANOTHER REMEDY OPEN TO
WILLIAMS, AS THE ATTORNEY GENERAL OF THE STATE INTIMATED IN HIS BRIEF
TO THE GEORGIA SUPREME COURT, THAT COURT SHOULD HAVE AN OPPORTUNITY TO
DESIGNATE THE APPROPRIATE REMEDY.  (FN18) 

THE FACTS OF THIS CASE ARE EXTRAORDINARY, PARTICULARLY IN VIEW OF THE
USE OF YELLOW AND WHITE TICKETS BY A JUDGE OF THE FULTON COUNTY
SUPERIOR COURT ALMOST A YEAR AFTER THE STATE'S OWN SUPREME COURT HAD
CONDEMNED THE PRACTICE IN THE AVERY CASE.  THAT LIFE IS AT STAKE IS OF
COURSE ANOTHER IMPORTANT FACTOR IN CREATING THE EXTRAORDINARY
SITUATION.  THE DIFFERENCE BETWEEN CAPITAL AND NON-CAPITAL OFFENSES IS
THE BASIS OF DIFFERENTIATION IN LAW IN DIVERSE WAYS IN WHICH THE
DISTINCTION BECOMES RELEVANT.  (FN19)  WE THINK THAT ORDERLY PROCEDURE
REQUIRES A REMAND TO THE STATE SUPREME COURT FOR RECONSIDERATION OF THE
CASE.  FAIR REGARD FOR THE PRINCIPLES WHICH THE GEORGIA COURTS HAVE
ENFORCED IN NUMEROUS CASES AND FOR THE CONSTITUTIONAL COMMANDS BINDING
ON ALL COURTS COMPELS US TO REJECT THE ASSUMPTION THAT THE COURTS OF
GEORGIA WOULD ALLOW THIS MAN TO GO TO HIS DEATH AS THE RESULT OF A
CONVICTION SECURED FROM A JURY WHICH THE STATE ADMITS WAS
UNCONSTITUTIONALLY IMPANELED.  CF. MOONEY V. HOLOHAN, 294 U.S. 103. 
REMANDED. 

FN1  "IN CASE OF A MOTION FOR A NEW TRIAL MADE AFTER THE ADJOURNMENT
OF THE COURT, SOME GOOD REASON MUST BE SHOWN WHY THE MOTION WAS NOT
MADE DURING THE TERM, WHICH SHALL BE JUDGED OF BY THE COURT.  IN ALL
SUCH CASES, 20 DAYS' NOTICE SHALL BE GIVEN TO THE OPPOSITE PARTY. 
WHENEVER A MOTION FOR A NEW TRIAL SHALL HAVE BEEN MADE AT THE TERM OF
TRIAL IN ANY CRIMINAL CASE AND OVERRULED, OR WHEN A MOTION FOR A NEW
TRIAL HAS NOT BEEN MADE AT SUCH TERM, NO MOTION FOR A NEW TRIAL FROM
THE SAME VERDICT SHALL BE MADE OR RECEIVED, UNLESS THE SAME IS AN
EXTRAORDINARY MOTION OR CASE, AND BUT ONE SUCH EXTRAORDINARY MOTION
SHALL BE MADE OR ALLOWED." 

FN2  SEE APPENDIX, POST, P. 392, FOR TABLE COMPARING THE DATES IN THE
TWO CASES. 

FN3  THE COURT SAID:  "AND WHILE THE STATUTE DOES NOT SAY SO, ITS
MANIFEST INTENTION IS THAT THE TICKETS SHALL BE OF UNIFORM SIZE AND
COLOR, SO AS TO MAKE DISCRIMINATION IMPOSSIBLE IN THE DRAWING OF
JURORS; AND, WHERE NOT SO DONE, THIS IS PRIMA FACIE EVIDENCE OF
DISCRIMINATION, AND, IF NOTHING ELSE APPEARED, WOULD REQUIRE A
REVERSAL.  IN THIS CASE, HOWEVER, IT IS NOT CHARGED OR CONTENDED THAT
ANY DISCRIMINATION WAS PRACTICED IN DRAWING THE CHALLENGED JURORS; AND
THE JUDGE WHO DREW THEM, AS A WITNESS FOR THE ACCUSED, TESTIFIED THERE
WAS IN FACT NONE.  THEREFORE, THE PRACTICE OF PLACING THE NAMES OF
WHITE AND COLORED JURORS IN THE JURY BOX ON TICKETS OF DIFFERENT COLORS
DID NO HARM IN THIS INSTANCE, AND CONSEQUENTLY FURNISHED NO SUFFICIENT
OBJECTION TO THE JURORS CHALLENGED BY THE ACCUSED."  209 GA. 116, 124,
70 S.E.2D 716, 722. 

FN4  COUNSEL WERE INFORMED THAT THIS CASE WOULD BE ARGUED IN THIS
COURT ON MARCH 3, 1955.  ON FEBRUARY 14, 1955, THE ASSISTANT ATTORNEY
GENERAL OF GEORGIA WROTE THE CLERK OF THIS COURT THAT HIS OFFICE HAD
BEEN INFORMED BY WILLIAMS' COUNSEL THAT "IN ALL PROBABILITY HE WOULD
NOT PARTICIPATE IN THE ORAL ARGUMENT OF THIS CASE."  THE CLERK
REQUESTED THE ATTORNEY ON FEBRUARY 18 TO INFORM THE COURT OF HIS
PLANS.  UNDER DATE OF FEBRUARY 22, THE ATTORNEY WROTE TO THE CLERK AS
FOLLOWS: 

"DEAR SIR: 

"AT THE PRESENT TIME, IT DOES NOT APPEAR THAT I WILL BE ABLE TO COME
TO WASHINGTON TO PRESENT ORAL ARGUMENT IN THE ABOVE CASE.  I HAVE
LITTLE OR NOTHING TO ADD TO THE BRIEF. 

"IT IS ENTIRELY AGREEABLE, INSOFAR AS MY AGREEMENT HAS ANY BEARING,
THAT THE ATTORNEY GENERAL'S REQUEST IN LETTER OF FEBRUARY 14, 1955,
(FOR PERMISSION TO HAVE TWO COUNSEL PRESENT THE STATE'S CASE) BE
GRANTED. 

"I AM ASSUMING THAT IF EVENTS TAKE SUCH A TURN THAT I AM ABLE TO COME
TO WASHINGTON, I WILL BE PERMITTED TO MAKE A SHORT ORAL ARGUMENT. 

 "YOURS VERY TRULY," 

UNDER DATE OF FEBRUARY 26, 1955, THE CLERK SENT THE ATTORNEY THE
FOLLOWING LETTER: 

"DEAR SIR: 

"I HAVE SPOKEN TO THE CHIEF JUSTICE ABOUT THE ORAL ARGUMENT IN THIS
CASE AND OF THE PROBABILITY THAT YOU WOULD NOT BE PRESENT. 

"HE ASKED ME TO INFORM YOU THAT THE COURT WOULD APPRECIATE YOUR
PRESENTING ORAL ARGUMENT IF AT ALL POSSIBLE, PARTICULARLY IN VIEW OF
THE FACT THAT THIS A CAPITAL CASE. 

                                          "YOURS TRULY," 

THE ATTORNEY REPLIED UNDER DATE OF FEBRUARY 28: 

"DEAR SIR: 

"I AM IN THIS POSITION ABOUT THIS CASE:  I ORIGINALLY ENTERED THE
CASE BY APPOINTMENT, BEFORE OUR GENERAL ASSEMBLY ENACTED LEGISLATION
AUTHORIZING THE PAYMENT OF APPOINTED COUNSEL FROM THE TREASURY OF
FULTON COUNTY.  THIS PETITIONER HAS NO MONEY.  HIS FAMILY HAVE MADE
CONTRIBUTIONS WHICH HAVE IN PART PAID ACTUAL EXPENSES.  AT THE PRESENT
TIME, THEY HAVE ONLY PAID ONE-HALF THE COST OF PRINTING THE BRIEF, AND
IN THIS SITUATION, IT APPEARS THAT ANY EXPENSE CONNECTED WITH A TRIP TO
WASHINGTON WILL BE OUT-OF-POCKET TO ME. 

"IN ADDITION, I AM SOLE COUNSEL IN A SUIT IN THE SUPERIOR COURT OF
POLK COUNTY, GEORGIA, ON THE CALENDAR OF THAT COURT FOR TRIAL DURING
THE PRESENT WEEK WHERE MY ABSENCE FOR ANY CAUSE WILL HAVE THE RESULT
THAT PAYMENT OF TEMPORARY ALIMONY TO MY CLIENT WILL NOT BE CONTINUED,
WHICH IN TURN, WILL HAVE THE RESULT THAT I WILL LOSE THE CLIENT. 

"I HAVE APPEARED IN THE SUPREME COURT OF GEORGIA TWICE IN THIS CASE
AND HAVE PURSUED IT THUS FAR IN THE SUPREME COURT OF THE UNITED STATES
AT A CONSIDERABLE SACRIFICE.  IT HAS BEEN MY INTENTION TO PRESENT ORAL
ARGUMENT IF AT ALL POSSIBLE.  IN VIEW OF THE FOREGOING, HOWEVER, IT
SIMPLY DOES NOT SEEM THAT I WILL BE ABLE TO.  IF I CAN TRY THE CASE IN
POLK SUPERIOR COURT TOMORROW (MARCH 1ST), THERE REMAINS A POSSIBILITY
THAT I WILL BE ABLE TO APPEAR BEFORE THE SUPREME COURT.  I DO NOT,
HOWEVER, BELIEVE SUCH WILL BE THE CASE AND FOR THAT REASON, I CANNOT
PLAN ON GOING TO WASHINGTON. 

  "VERY TRULY YOURS," 

ORAL ARGUMENT WAS SUBSEQUENTLY RESET FOR APRIL 18, 1955. 

FN5  THE SOLICITOR GENERAL SAID AT THE END OF HIS BRIEF:  "  ...  IN
THE AVERY CASE NO NEGRO JURORS WERE DRAWN AND IMPANELLED.  IN THIS CASE
4 NEGRO JURORS WERE ACTUALLY IMPANELLED AND SWORN FOR THE TRIAL OF THIS
CASE.  THE MERE FACT THAT 3 WERE DISQUALIFIED FOR CAUSE AND ONE WAS
STRICKEN PEREMPTORILY BY THE STATE WOULD NOT SUFFICE TO SHOW A COURSE
OF SYSTEMATIC EXCLUSION OF NEGROES FROM THE JURY SUCH AS WOULD AMOUNT
TO DISCRIMINATION AGAINST THE DEFENDANT IN THE TRIAL OF HIS CASE. 

"WE RESPECTFULLY SUBMIT THAT THE FACTS ALLEGED IN THE EXTRAORDINARY
MOTION FOR A NEW TRIAL DO NOT MAKE OUT A CASE SHOWING DENIAL OF EQUAL
PROTECTION OF THE LAW OR DUE PROCESS OF LAW UNDER THE 14TH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES, AND THAT UNDER THE AUTHORITIES
CITED ABOVE THE JUDGMENT OF THE TRIAL JUDGE IN DISMISSING THE
EXTRAORDINARY MOTION SHOULD BE AFFIRMED." 

THE ATTORNEY GENERAL OF THE STATE, WHO ALSO FILED A BRIEF ON BEHALF
OF THE STATE, DID NOT DISCUSS THE CONSTITUTIONAL QUESTION EXCEPT IN HIS
CONCLUDING PARAGRAPH:  "IF, UNDER THE DECISION IN THE AVERY CASE, THERE
WAS IN FACT A DISCRIMINATION AGAINST THE MOVANT IN HIS TRIAL, WE DO NOT
SAY THAT HE DOES NOT HAVE SOME REMEDY AT LAW BUT WE DO CONTEND THAT THE
QUESTION IS NOT GROUND FOR EXTRAORDINARY MOTION FOR NEW TRIAL AND THAT
THE COURT DID NOT ERR IN DISMISSING THE SAME." 

NO OTHER REMEDY WAS MENTIONED BY THE GEORGIA SUPREME COURT, AND NONE
HAS BEEN CALLED TO OUR ATTENTION BY THE PARTIES. 

FN6  SEE, E.G., PARKER V. ILLINOIS, 333 U.S. 571; RADIO STATION WOW,
INC. V. JOHNSON, 326 U.S. 120, 128; PENNSYLVANIA R. CO. V. ILLINOIS
BRICK CO., 297 U.S. 447, 462-463; CENTRAL UNION TELEPHONE CO. V. CITY
OF EDWARDSVILLE, 269 U.S. 190. 

FN7  CF. ROGERS V. ALABAMA, 192 U.S. 226; ABIE STATE BANK V. BRYAN,
282 U.S. 765, 772-773; PIERRE V. LOUISIANA, 306 U.S. 354, 358; URIE V.
THOMPSON, 337 U.S. 163, 172-173; VANDALIA R. CO. V. INDIANA EX REL.
SOUTH BEND, 207 U.S. 359, 367. 

FN8  E.G., PARKS V. GEORGIA, 204 GA. 41, 48 S.E.2D 837 (1948); BROWN
V. GEORGIA, 141 GA. 783, 82 S.E. 238 (1914); TYRE V. GEORGIA, 38 GA.
APP. 206, 143 S.E. 778 (1928).    FN9  GA. CODE ANN., SEC. 70-303.  SEE
NOTE 1, SUPRA. 

FN10  E.G., PATTERSON V. GEORGIA, 208 GA. 689, 69 S.E.2D 84 (1952);
PULLIAM V. GEORGIA, 199 GA. 709, 35 S.E.2D 250 (1945); ROGERS V.
GEORGIA, 129 GA. 589, 59 S.E. 288 (1907); ECHOLS V. GEORGIA, 87 GA.
APP. 565, 74 S.E.2D 474 (1953); BIVINS V. MCDONALD, 50 GA. APP. 299,
177 S.E. 829 (1934). 

FN11  CF. WILLIAMS V. GEORGIA, 12 GA. APP. 337, 77 S.E. 189 (1913),
IN WHICH THE PRESENCE ON THE JURY OF A JUROR PREVIOUSLY CONVICTED OF AN
OFFENSE INVOLVING MORAL TURPITUDE WAS DEEMED TO WARRANT A NEW TRIAL ON
A MOTION AFTER VERDICT, AS COMPARED WITH AN EXTRAORDINARY MOTION AFTER
FINAL JUDGMENT. 

FN12  CF. THE FOLLOWING CASES IN WHICH NEW TRIALS WERE GRANTED ON
MOTION AFTER VERDICT, AS COMPARED WITH AN EXTRAORDINARY MOTION AFTER
FINAL JUDGMENT, BECAUSE OF A JUROR'S DISQUALIFICATION.  HARRIS V.
GEORGIA, 188 GA. 745, 4 S.E.2D 651 (1939); ETHRIDGE V. GEORGIA, 164 GA.
53, 137 S.E. 784 (1927); CURRIE V. GEORGIA, 156 GA. 85, 118 S.E. 724
(1923); O'BERRY V. GEORGIA, 153 GA. 644, 113 S.E. 2 (1922); MERRITT V.
GEORGIA, 152 GA. 405, 110 S.E. 160 (1921); HUBBARD V. GEORGIA, 5 GA.
APP. 599, 63 S.E. 588 (1909); PERRETT V. GEORGIA, 16 GA. APP. 587, 85
S.E. 820 (1915); CRAY V. GEORGIA, 37 GA. APP. 371, 140 S.E. 402
(1927). 

FN13  UNDER GEORGIA PRACTICE, THE HEADNOTES TO CASES ARE WRITTEN BY
THE COURT.  THE HEADNOTE IN THIS CASE SAID:  "HELD, THAT CONVICTION FOR
MURDER AND SENTENCE OF DEATH ON THE VERDICT OF A JUROR SO UTTERLY
DESTITUTE OF TRUTH AND UPRIGHTNESS OF CHARACTER, WOULD SHOCK THE
CONSCIENCE OF CIVILIZATION, AND SOIL THE PURITY OF JURY TRIAL; AND NO
MATTER HOW HEINOUS THE CRIME COMMITTED, THE PRESERVATION OF THAT PURITY
IS OF MORE CONSEQUENCE THAN THE SPEEDY PUNISHMENT OF ANY ONE MAN FOR
ANY ONE OFFENSE, AND PUBLIC POLICY, AS WELL AS INDIVIDUAL RIGHT, DEMAND
A NEW TRIAL." 

IN WALLACE V. GEORGIA, 205 GA. 751, 55 S.E.2D 145 (1949), AFFIDAVITS
SIMILAR TO THOSE IN THE DOYAL CASE WERE PRESENTED BY THE DEFENDANT, BUT
THE STATE INTRODUCED POSITIVE AFFIDAVITS TO THE EFFECT THAT NO SUCH
STATEMENTS BY THE JUROR HAD BEEN MADE.  THE HEADNOTE WRITTEN BY THE
GEORGIA SUPREME COURT STATED:  "THERE WAS NO MANIFEST ABUSE OF
DISCRETION BY THE TRIAL JUDGE IN OVERRULING THIS GROUND OF THE
EXTRAORDINARY MOTION FOR A NEW TRIAL, BASED UPON CONFLICTING EVIDENCE
AS TO THE ALLEGED DISQUALIFICATION OF THE JUROR THEREIN REFERRED TO." 
(205 GA., AT 752, 55 S.E.2D, AT 146.) 

FN14  IN BLOODWORTH V. GEORGIA, 161 GA. 332, 334, 131 S.E. 80, 81
(1925), IT WAS STATED THAT IN A PRIOR TRIAL DEFENDANT WAS GRANTED A NEW
TRIAL ON AN EXTRAORDINARY MOTION AFTER FINAL JUDGMENT BECAUSE A JUROR
WAS DISQUALIFIED. 

IN HARRIS V. GEORGIA, 150 GA. 680, 108 S.E. 902 (1920), THE DEFENDANT
WAS SENTENCED TO DEATH FOR MURDER, A MOTION FOR A NEW TRIAL WAS DENIED,
AND THE JUDGMENT WAS AFFIRMED ON APPEAL.  AN EXTRAORDINARY MOTION FOR
NEW TRIAL WAS OVERRULED BY THE TRIAL COURT, BUT THE STATE SUPREME COURT
REVERSED.  THE GROUND OF THE REVERSAL WAS THAT AFTER THE JURY HAD
INFORMED THE JUDGE THAT THEY COULD NOT AGREE, A DEPUTY SHERIFF GAVE
THEM THE JUDGE'S MESSAGE THAT HE COULD NOT HELP THEM FURTHER, AND THEN
THE DEPUTY ADDED, "THE JUDGE WOULD KEEP THEM LOCKED UP UNTIL THEY DID
MAKE A VERDICT," AFTER WHICH A VERDICT WAS BROUGHT IN. 

FN15  SOME OF THESE CASES ARE NOT ENTIRELY CLEAR.  FOR EXAMPLE,
LUMPKIN STATED THAT ALL OBJECTIONS TO THE IMPANELING OF THE GRAND JURY
SHOULD BE MADE BY CHALLENGE TO THE ARRAY BEFORE THE INDICTMENT IS
FOUND, WHERE THE ILLEGALITY IS KNOWN, OR, IF NOT KNOWN, BY PLEA IN
ABATEMENT TO THE INDICTMENT; OBJECTIONS TO "CERTAIN JURORS" ON THE
TRIAL JURY SHOULD BE RAISED BY A CHALLENGE TO THE JUROR WHEN PUT UPON
THE DEFENDANT.  THIS RULE IS CITED IN CORNELIOUS FOR THE PROPOSITION
THAT AN OBJECTION TO BOTH GRAND AND PETIT JURIES MUST BE MADE BY A
CHALLENGE TO THE ARRAY BEFORE INDICTMENT OR BY PLEA IN ABATEMENT BEFORE
TRIAL.  IN KATO V. GEORGIA, 33 GA. APP. 342, 126 S.E. 266 (1925), THE
GRAND JURY RULE WAS APPLIED TO INDIVIDUAL GRAND JURORS RATHER THAN TO
THE PANEL, AND THE CHALLENGE WAS SAID TO BE ONE TO THE ARRAY.  AND IN
MOON V. GEORGIA, 68 GA. 687 (1882), IT WAS SAID THAT AN OBJECTION TO A
SINGLE JUROR SHOULD BE MADE BY A CHALLENGE TO THE ARRAY.  CF. NOTE 16,
INFRA. 

FN16  E.G., FUDGE V. GEORGIA, 190 GA. 340, 9 S.E.2D 259 (1940); BRYAN
V. GEORGIA, 124 GA. 79, 52 S.E. 298 (1905); TAYLOR V. GEORGIA, 121 GA.
348, 49 S.E. 303 (1904).  IN GEORGIA, CHALLENGES TO THE ARRAY GO TO THE
FORM AND MANNER OF MAKING UP THE ENTIRE PANEL, WHEREAS CHALLENGES TO
THE POLL ARE DIRECTED SOLELY TO THE INDIVIDUAL JUROR.  SEE HUMPHRIES V.
GEORGIA, 100 GA. 260, 262, 28 S.E. 25, 26 (1897); MITCHELL V. GEORGIA,
69 GA. APP. 771, 776, 26 S.E.2D 663, 667 (1943). 

FN17  210 GA. 665, 668, 82 S.E.2D 217, 219. 

FN18  EVEN IF EXTRAORDINARY MOTION IS THE APPROPRIATE REMEDY, LOCAL
PRACTICE MAY REQUIRE WILLIAMS TO BE PUT TO HIS PROOF.  THE STATE, FOR
PURPOSES OF PRESENTING ITS LEGAL ARGUMENTS, HAS NOT DISPUTED THE FACTS
ALLEGED IN THE EXTRAORDINARY MOTION, BUT THERE HAS NOT BEEN A HEARING
ON THOSE FACTS OR AN ADMISSION OF THEIR TRUTH. 

FN19  CF. PATTERSON V. ALABAMA, SUPRA, WITH BETTS V. BRADY, 316 U.S.
455. 

FOR DISSENTING OPINION OF MR. JUSTICE CLARK, SEE POST, P. 393. 

FOR DISSENTING OPINION OF MR. JUSTICE MINTON, SEE POST, P. 403. 

         APPENDIX TO OPINION OF THE COURT. 

WILLIAMS CASE                                           AVERY CASE

SEPT. 20, 1951 - AVERY CONVICTED. 

                               APRIL 14, 1952 - GEORGIA SUPREME

COURT AFFIRMS. 

             JULY 28, 1952 - CERTIORARI FILED

                                             IN THIS COURT. 

 OCT. 4, 1952 - ALLEGED MURDER

   OCCURS. 

 OCT. 17, 1952 - WILLIAMS ARRESTED,

   PLACED IN A LINE-UP, CONFESSES. 

 OCT. 21, 1952 - WILLIAMS INDICTED. 

 FEB. 18, 1953 - JURY PANELS CHOSEN

   FOR TRIALS DURING WEEK OF

   MARCH 9TH. 

               MARCH 9, 1953 - THIS COURT GRANTS

                                                CERTIORARI. 

 MARCH 10, 1953 - JURY PUT UPON WILLIAMS,

   TRIAL HELD, AND VERDICT OF GUILTY. 

 MARCH 11, 1953 - SENTENCED. 

 MARCH 27, 1953 - FORMAL MOTION

   FOR NEW TRIAL FILED. 

APRIL 30, 1953 - CASE ARGUED IN

                              THIS COURT. 

                                        MAY 25, 1953 - THIS COURT

  REVERSES, HOLDING JURY SELECTION

                                  UNCONSTITUTIONAL. 

 JUNE 29, 1953 - AMENDMENT TO

   MOTION FOR NEW TRIAL FILED;

   MOTION OVERRULED. 

 JULY 16, 1953 - BILL OF EXCEPTIONS

   FILED. 

 OCT. 14, 1953 - GEORGIA SUPREME

  COURT AFFIRMS. 

 NOV. 23, 1953 - WILLIAMS AGAIN

SENTENCED TO DEATH. 

 DEC. 1, 1953 - EXTRAORDINARY MOTION

   FOR NEW TRIAL FILED. 

 JAN. 18, 1954 - TRIAL COURT DISMISSES

   EXTRAORDINARY MOTION. 

 MAY 19, 1954 - GEORGIA SUPREME

   COURT AFFIRMS. 

 OCT. 18, 1954 - THIS COURT GRANTS

   CERTIORARI. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

TO BORROW A PHRASE FROM MR. JUSTICE HOLMES, THE OPINION OF THE COURT
"JUST WON'T WASH." WHILE I, TOO, AM NOT DEAF TO THE PLEAS OF THE
CONDEMNED, I CANNOT IGNORE THE LONG-ESTABLISHED PRECEDENTS OF THIS
COURT.  THE PROPER COURSE, AS HAS ALWAYS BEEN FOLLOWED HERE, IS TO
RECOGNIZE AND HONOR REASONABLE STATE PROCEDURES AS VALID EXERCISES OF
SOVEREIGN POWER.  WE HAVE DONE SO IN HUNDREDS OF CAPITAL CASES SINCE I
HAVE BEEN ON THE COURT, AND I DO NOT THINK THAT EVEN THE SYMPATHETIC
FACTS OF THIS CASE SHOULD MAKE US LOSE SIGHT OF THE LIMITATIONS ON THIS
COURT'S POWERS. 

TO SEE JUST HOW FAR THE COURT HAS "STRETCHED" HERE, IT IS ONLY
NECESSARY TO COMPARE TODAY'S MAJORITY OPINION WITH PATTERSON V.
ALABAMA, 294 U.S. 600, THE DECISION RELIED ON TO SUPPORT THE COURT'S
REMAND.  IN THAT CASE, PATTERSON AND ONE NORRIS HAD BEEN CHARGED IN A
COMMON INDICTMENT.  PRIOR TO TRIAL, BOTH INTERPOSED CONSTITUTIONAL
CLAIMS OF SYSTEMATIC EXCLUSION OF NEGROES FROM THE JURY.  PATTERSON,
HOWEVER, FAILED TO FILE HIS BILL OF EXCEPTIONS WITHIN THE TIME
PRESCRIBED BY STATE LAW.  THE ALABAMA SUPREME COURT DECIDED THE
SEPARATE APPEALS ON THE SAME DAY, DENYING NORRIS' CLAIM ON THE MERITS,
NORRIS V. STATE, 229 ALA. 226, 156 SO. 556, WHILE DISMISSING
PATTERSON'S CASE AS OUT OF TIME.  229 ALA. 270, 256 SO. 567.  THIS
COURT THEREAFTER REVERSED NORRIS' CONVICTION.  294 U.S. 587.  IN
PATTERSON, HOWEVER, THE COURT WAS CONFRONTED WITH AN INDEPENDENT AND
ADEQUATE STATE GROUND WHICH PRESENTED AN INSUPERABLE OBSTACLE TO
REVERSAL.  NEVERTHELESS, IT WAS QUITE POSSIBLE THAT HAD THE ALABAMA
COURT REALIZED THE VALIDITY OF THE OBJECTION IT HAD OVERRULED ON THE
MERITS IN NORRIS, IT MIGHT HAVE REGARDED THE WHOLE COMPLEXION OF THE
CASE AS DIFFERENT AND CHOSEN NOT TO REST ON A NARROW PROCEDURAL GROUND
IN PATTERSON.  THIS COURT, THEREFORE, REMANDED THE CASE TO THE ALABAMA
SUPREME COURT FOR RECONSIDERATION OF ITS DECISION IN THE LIGHT OF THE
IMPORTANT INTERVENING FACTOR. 

NOTE THE MAGNITUDE OF THE "IMPORTANT INTERVENING FACTOR" HERE AND
JUST HOW IT CHANGES THE COMPLEXION OF THE CASE.  THE MAJORITY RELIES ON
THE FACT THAT THE STATE "ON ORAL ARGUMENT HERE  ... AGREED THAT THE USE
OF YELLOW AND WHITE TICKETS IN THIS CASE WAS, IN LIGHT OF THIS COURT'S
DECISION IN AVERY, A DENIAL OF EQUAL PROTECTION, SO THAT A NEW TRIAL
WOULD BE REQUIRED BUT FOR THE FAILURE TO CHALLENGE THE ARRAY."  THE
SOLICITOR GENERAL OF FULTON COUNTY, THE COURT REASONS, "HAD URGED BY
BRIEF BEFORE THE THE GEORGIA SUPREME COURT THAT NO DENIAL OF EQUAL
PROTECTION WAS INVOLVED, AND THAT COURT MAY WELL HAVE BEEN INFLUENCED
BY THE CONTENTION." 

THE SOLICITOR GENERAL OF FULTON COUNTY PRESENTED NO ORAL ARGUMENT
HERE.  ONLY THE STATE ATTORNEY GENERAL, WHOSE SOLE CONTENTION BEFORE
THE GEORGIA COURT WAS THAT THE "QUESTION WAS NOT GROUND FOR
EXTRAORDINARY MOTION FOR NEW TRIAL," WAS REPRESENTED BEFORE THIS
COURT.  THE MAJORITY'S "IMPORTANT INTERVENING FACTOR," THEREFORE, IS
THAT AN ASSISTANT ATTORNEY GENERAL OF GEORGIA HAS NOW EXPRESSED AN
OPINION ON A QUESTION HIS SUPERIOR DID NOT REACH IN HIS BRIEF BEFORE
THE GEORGIA SUPREME COURT.  SINCE GOOD ADVOCACY WOULD DICTATE THAT THE
ATTORNEY GENERAL ARGUE THIS POINT BEFORE THE GEORGIA COURT HAD HE
THOUGHT IT SUBSTANTIAL, I DO NOT THINK HIS OFFICE UNDERWENT ANY GREAT
CHANGE OF MIND IN THE INTERIM BETWEEN THAT ARGUMENT AND THIS.  ON
ARGUMENT, AFTER QUESTIONING ON THE POINT - WHICH WE NOTE WAS NOT ONE OF
THE QUESTIONS HE RAISED - THE ASSISTANT ATTORNEY GENERAL STATED ONLY
WHAT THE ATTORNEY GENERAL'S BRIEF BELOW HAD INTIMATED.  IN ANY EVENT, I
AM COMPLETELY AT A LOSS TO UNDERSTAND WHAT DIFFERENCE IT MAKES WHAT WAS
ARGUED IN THE GEORGIA SUPREME COURT OR CONCEDED HERE, SINCE THE GEORGIA
SUPREME COURT CLEARLY STATED THAT, BUT FOR THE PROCEDURAL OBJECTION,
AVERY WOULD GOVERN: 

"DEFENDANT IN HIS MOTION SETS FORTH A PRACTICE WHICH HAS BEEN
CONDEMNED BY THIS COURT AND THE SUPREME COURT OF THE UNITED STATES. 
HOWEVER, ANY QUESTION TO BE CONSIDERED BY THIS COURT MUST BE RAISED AT
THE TIME AND IN THE MANNER REQUIRED UNDER THE RULES OF LAW AND PRACTICE
AND PROCEDURE IN EFFECT IN THIS STATE."  210 GA. 665, 669, 82 S.E.2D
217, 219.   THE MAJORITY'S OTHER GROUND FOR REMAND IS EVEN WEAKER,
RELYING ON A PHRASE FROM THE ATTORNEY GENERAL'S BRIEF BEFORE THE
GEORGIA COURT - "WE DO NOT SAY THAT HE (WILLIAMS) DOES NOT HAVE SOME
REMEDY AT LAW."  THE GROUND ASSERTED IS THAT IN THE LIGHT OF THIS
"INTIMATION" OF THE ATTORNEY GENERAL, GEORGIA'S COURT "SHOULD HAVE AN
OPPORTUNITY TO DESIGNATE THE APPROPRIATE REMEDY."  IF WILLIAMS HAS A
REMEDY, HE CAN CERTAINLY PURSUE IT AS WELL WITHOUT THIS REMAND; AND IF
HE HAS NO OTHER STATE REMEDY, IT IS EVEN CLEARER THAT NOTHING IS TO BE
GAINED BY THE COURT'S DISPOSITION OF THE CASE. 

ANOTHER DIFFERENCE BETWEEN THIS CASE AND PATTERSON IS AT ONCE
EVIDENT.  IN PATTERSON, THE COURT, THROUGH CHIEF JUSTICE HUGHES, SAID: 

"WE ARE NOT CONVINCED THAT THE COURT, IN THE PRESENCE OF SUCH A
DETERMINATION OF CONSTITUTIONAL RIGHT, CONFRONTING THE ANOMALOUS AND
GRAVE SITUATION WHICH WOULD BE CREATED BY A REVERSAL OF THE JUDGMENT
AGAINST NORRIS, AND AN AFFIRMANCE OF THE JUDGMENT OF DEATH IN THE
COMPANION CASE OF PATTERSON, WHO HAD ASSERTED THE SAME RIGHT,  ...
WOULD HAVE CONSIDERED ITSELF POWERLESS TO ENTERTAIN THE BILL OF
EXCEPTIONS OR OTHERWISE TO PROVIDE APPROPRIATE RELIEF  ...  .  AT LEAST
THE STATE COURT SHOULD HAVE AN OPPORTUNITY TO EXAMINE ITS POWERS IN THE
LIGHT OF THE SITUATION WHICH HAS NOW DEVELOPED.  WE SHOULD NOT
FORECLOSE THAT OPPORTUNITY."  (FN1)  294 U.S., AT 606-607. 

IN THIS CASE, UNLIKE PATTERSON, THE COURT DETERMINES THE STATE LAW
ITSELF.  WE HAVE ALWAYS INSISTED THAT, IF POSSIBLE, STATE COURTS BE
PERMITTED TO DECIDE DIFFICULT AND UNCERTAIN QUESTIONS OF STATE LAW
BEFORE THE FEDERAL COURTS DO SO, EVEN TO THE POINT OF HAVING THE
FEDERAL COURTS DECLINE JURISDICTION TO AWAIT THE STATE'S RULING.  CF.
BURFORD V. SUN OIL CO., 319 U.S. 315.  TO ME NOTHING COULD BE CLEARER
THAN THAT A STATE QUESTION ARISING IN A CASE WHICH IS TO BE REMANDED TO
THE STATE COURT SHOULD BE LEFT OPEN FOR RESOLUTION BY THE STATE WITHOUT
THE PRESSURE OF A DECISION BY THIS COURT.    FURTHERMORE, I AGREE WITH
MR. JUSTICE MINTON THAT THE MAJORITY HAS MISCONSTRUED GEORGIA'S LAW. 
AS I READ THE STATE LAW, THE DECISIONS INDICATE THAT THE GEORGIA COURTS
HAVE NO POWER TO HEAR AND DETERMINE PETITIONER'S EXTRAORDINARY MOTION
ON THE MERITS.  EVER SINCE JORDAN V. STATE, 22 GA. 545 (1857), THE
GEORGIA LAW HAS BEEN THAT THE DEFENDANT MUST CHALLENGE THE ARRAY WHEN
THE PANEL IS "PUT UPON" HIM AND NOT THEREAFTER.  AND SINCE IT IS TOO
LATE TO RAISE SUCH A CHALLENGE IN A MOTION FOR NEW TRIAL, MOON V.
STATE, 68 GA. 687 (1882), CERTAINLY THE OBJECTION CANNOT BE MADE IN AN
EXTRAORDINARY MOTION COMING, AS HERE, SEVEN MONTHS AFTER VERDICT.  SEE
ALSO CUMMING V. STATE, 155 GA. 346, 117 S.E.2D 378 (1923).  IN FACT, AS
LATE AS 1941, GEORGIA'S HIGHEST COURT REJECTED A CLAIM OF
DISCRIMINATION IN THE SELECTION OF JURORS "FOR THE REASON THAT AN
OBJECTION OF THIS KIND SHOULD HAVE BEEN PRESENTED IN A PROPER WAY AT
THE TRIAL, AND UPON FAILURE TO DO SO IT IS TO BE CONSIDERED WAIVED." 
WILCOXON V. ALDREDGE, 192 GA. 634, 637, 15 S.E.2D 873, 876.  THIS WAS A
CAPITAL CASE, AND IT WAS CONCEDED THAT THE PRISONER'S CLAIM HAD
SUBSTANTIVE VALIDITY.  BUT EVEN IN THOSE EXTREME CIRCUMSTANCES THE
GEORGIA SUPREME COURT DID NOT CONSIDER THE OBJECTION AVAILABLE AFTER
TRIAL. 

THE GEORGIA COURT OF APPEALS HAS CONSISTENTLY TAKEN THE SAME
POSITION.  IN IVEY V. STATE, 4 GA. APP. 828, 831, 62 S.E. 565 (1908),
AND WILLIAMS V. STATE, 31 GA. APP. 173, 174, 120 S.E.  131, 132 (1923),
IT WAS HELD THAT "IF HE (DEFENDANT) DOES NOT CHALLENGE THE ARRAY, NO
OTHER METHOD OF COMPLAINT AS TO THE DEFICIENCY OF THE PANEL IS OPEN TO
HIM."  IN REACHING THE OPPOSITE CONCLUSION, I.E., THAT THE GEORGIA
COURTS HAVE DISCRETIONARY AUTHORITY TO CONSIDER THE PETITIONER'S
UNTIMELY OBJECTION IN THE CIRCUMSTANCES OF THIS CASE, THE MAJORITY
RELIES ON TWO FACTORS.  FIRST, THE GEORGIA COURT IN THE INSTANT CASE,
AFTER HOLDING THAT PETITIONER HAD WAIVED HIS OBJECTION BY FAILING TO
RAISE IT AT THE PROPER TIME, WENT ON TO FIND THAT THE PROFFERED
JUSTIFICATION WAS INADEQUATE AS A MATTER OF PLEADING AND AS A MATTER OF
FACT.  BUT IT IS DIFFICULT TO SEE HOW THIS SEPARATELY NUMBERED
ALTERNATIVE GROUND CAN IMPAIR THE COURT'S OTHER DECISION THAT, EXCUSE
OR NO EXCUSE, PETITIONER HAD WAIVED HIS CLAIM "ONCE AND FOR ALL." 
SECOND, IT IS URGED THAT THE GEORGIA COURTS FREQUENTLY EXERCISE THEIR
DISCRETION IN FAVOR OF UNTIMELY OBJECTIONS DIRECTED AT INDIVIDUAL
JURORS - "CHALLENGES TO THE POLL" AS THEY ARE CALLED IN GEORGIA.  THE
MAJORITY CITES NO CASE, HOWEVER, WHERE SUCH DISCRETION WAS EXERCISED ON
A CHALLENGE TO THE ARRAY, AND NOT ONE OF THE MAJORITY'S INDIVIDUAL
JUROR CASES IS MENTIONED, MUCH LESS DISTINGUISHED, IN THE GEORGIA
COURT'S OPINION IN THIS CASE.  SINCE COURTS USUSALLY DISTINGUISH
APPARENT CONFLICTS, IT IS FAIR TO ASSUME THAT THE GEORGIA COURT
CONSIDERED THE TWO TYPES OF CHALLENGE TO BE GOVERNED BY ENTIRELY
DIFFERENT RULES.  THIS CONCLUSION IS BUTTRESSED BOTH BY THE DISTINCTION
DRAWN BETWEEN THESE TYPES UNDER GEORGIA LAW AND BY THE DIFFERING
CONSIDERATIONS CONTROLLING THEIR ALLOWANCE. 

CHALLENGES TO THE ARRAY ARE "DIRECTED TO THE WHOLE GROUP COLLECTIVELY
FOR CAUSES IN THE NATURE OF IRREGULARITIES IN THE FORM, MANNER AND
MAKING UP OF THE PANEL."  DAVIS AND SHULMAN, GEORGIA PRACTICE AND
PROCEDURE, P. 454.  CHALLENGES TO THE POLL ARE "DIRECTED SOLELY FOR
OBJECTIONS WHICH ARE INHERENT IN THE INDIVIDUAL JURORS," GEORGIA
PRACTICE AND PROCEDURE, SUPRA, AT 455.  CIRCUMSTANCES REQUIRE THAT
CHALLENGES TO THE ARRAY BE MADE BEFORE TRIAL.  IF PERMITTED THEREAFTER
AND UPHELD - THE JUDGMENTS IN MANY, IF NOT ALL, OTHER CASES TRIED
BEFORE JURIES OBTAINED FROM THE SAME PANEL WOULD BE SUBJECT TO LIKE
ATTACK.  FOR EXAMPLE, ILLEGALITY IN THE ARRAY SUMMONED FOR MARCH 9,
1953, FROM WHICH THE WILLIAMS JURY WAS SELECTED, MIGHT RESULT IN THE
OVERTURNING OF ALL VERDICTS RETURNED IN THE COUNTY DURING THEIR
TENURE.  THIS WOULD BE BOTH EXPENSIVE AND TIME-WASTING, AS WELL AS
DISRUPTIVE OF THE PROPER ADMINISTRATION OF JUSTICE.  HENCE GEORGIA
REQUIRES A CHALLENGE TO BE MADE BEFORE TRIAL IN ORDER TO GIVE THE JUDGE
AN OPPORTUNITY TO CORRECT THE IRREGULARITY.  ON THE OTHER HAND, A
CHALLENGE TO A PETIT JUROR OR TO THE POLL MERELY AFFECTS THE ONE
VERDICT OF THAT JURY OF TWELVE RATHER THAN ALL THE VERDICTS OF THE
PANEL OF ONE HUNDRED AND TWENTY. 

THE MAJORITY DWELLS ON THE EXTREME CIRCUMSTANCES OF THIS CASE,
DISCUSSES IN GREAT DETAIL THE GEORGIA CASES AFFORDING DISCRETIONARY
RELIEF IN LESS STRONG CASES INVOLVING INDIVIDUAL JURORS, AND WARNS THAT
"WE ARE NOT CONCLUDED FROM ASSUMING JURISDICTION AND DECIDING WHETHER
THE STATE COURT ACTION IN THE PARTICULAR CIRCUMSTANCES IS, IN EFFECT,
AN AVOIDANCE OF THE FEDERAL RIGHT."  ALTHOUGH I FIND IT DIFFICULT TO
ASCERTAIN EXACTLY WHAT GROUND THE MAJORITY COULD GIVE FOR STRIKING DOWN
THE GEORGIA RESULT, IT IS CLEAR TO ME THAT NO THEORY EVER BEFORE
ACCEPTED BY THIS COURT COULD LEAD TO REVERSAL. 

IT IS ELEMENTRAY THAT THIS COURT HAS NO JURISDICTION OVER A CASE HERE
FROM A STATE COURT WHERE THERE IS AN INDEPENDENT AND ADEQUATE STATE
GROUND SUPPORTING THE CONCLUSION REACHED BELOW.  (FN2)  A PURPORTED
STATE GROUND IS NOT INDEPENDENT AND ADEQUATE IN TWO INSTANCES.  FIRST,
WHERE THE CIRCUMSTANCES GIVE RISE TO AN INFERENCE THAT THE STATE COURT
IS GUILTY OF AN EVASION - AN INTERPRETATION OF STATE LAW WITH THE
SPECIFIC INTENT TO DEPRIVE A LITIGANT OF A FEDERAL RIGHT.  (FN3)
SECOND, WHERE THE STATE LAW, HONESTLY APPLIED THOUGH IT MAY BE, AND
EVEN DICTATED BY THE PRECEDENTS, THROWS SUCH OBSTACLES IN THE WAY OF
ENFORCEMENT OF FEDERAL RIGHTS THAT IT MUST BE STRUCK DOWN AS
UNREASONABLY INTERFERING WITH THE VINDICATION OF SUCH RIGHTS.  (FN4) 

IT IS OBVIOUS THAT THE GEORGIA COURT HAS NOT BEEN GUILTY OF
"EVASION."  ALTHOUGH THE GEORGIA COURT'S INTERPRETATION OF STATE LAW
MAY NOT BE FREE FROM DOUBT, IT IS NOT POSSIBLE TO SAY THAT THE GEORGIA
DECISION IS WITHOUT "FAIR SUPPORT" IN THE PREVIOUS CASES.  (FN5)  I
REGARD IT ALSO AS NOTEWORTHY THAT PRESIDING JUSTICE WYATT WROTE THIS
OPINION FOR THE GEORGIA SUPREME COURT.  IT WAS HE WHO, IN THE GEORGIA
COURT'S DECISION IN AVERY, SAID IN DISSENT: 

"I CANNOT AGREE WITH THE RULING AS TO DISCRIMINATION FOR THE REASON,
IN MY OPINION, THAT THIS PRACTICE IS CONCLUSIVE EVIDENCE OF
DISCRIMINATION, AND FOR THAT REASON THE CASE SHOULD BE REVERSED."   209
GA. 116, 131, 70 S.E.2D 716, 726. 

IN THIS RULING HE WENT FURTHER IN PROTECTING THE INTEGRITY OF THE
JURY SYSTEM THAN WE OURSELVES THOUGHT NECESSARY.  COMPARE AVERY V.
GEORGIA, 345 U.S. 559, 562-563 (PETITIONER ESTABLISHED "A PRIMA FACIE
CASE OF DISCRIMINATION" WHICH THE STATE FAILED TO REBUT).  ONE WHO HAD
SO ACTED WOULD HARDLY BE ATTEMPTING TO EVADE THE VERY FEDERAL RIGHT HE
HAD PREVIOUSLY UPHELD SO STRONGLY. 

SIMILARLY, THE GEORGIA PROCEDURE IS NOT UNDULY BURDENSOME.  THE
MAJORITY CONCEDES THAT "A STATE PROCEDURAL RULE WHICH FORBIDS THE
RAISING OF FEDERAL QUESTIONS AT LATE STAGES IN THE CASE, OR BY ANY
OTHER THAN A PRESCRIBED METHOD, HAS BEEN RECOGNIZED AS A VALID EXERCISE
OF STATE POWER."  EVEN IF THE MAJORITY COULD SOMEHOW STRIKE DOWN THE
GEORGIA COURT'S HOLDING THAT IT LACKED DISCRETION, IT IS NOT ENOUGH TO
SHOW THAT GEORGIA HAS THE POWER AND REFUSES TO EXERCISE IT.  THERE IS
NO CASE TO SUPPORT THE IMPLICATION THAT THE EXERCISE OF DISCRETION
AGAINST A FEDERAL RIGHT IS, WITHOUT MORE, AN EVASION.  SEE BROWN V.
ALLEN, 344 U.S. 443, 484-486.  INDEED, IT WOULD SEEM THAT THERE WOULD
HAVE TO BE A WITHHOLDING OF DISCRETION FOR THE PURPOSE OF DEPRIVING
WILLIAMS OF A FEDERAL RIGHT.  THERE IS NOTHING EVEN APPROACHING THAT
HERE. 

A STATE COURT'S DECISION CANNOT BE OVERTURNED IF ANY ONE OF THE
GROUNDS SUPPORTING IT IS INDEPENDENT AND ADEQUATE.  THERE IS ONE GROUND
HERE WHICH APPEARS SO UNASSAILABLE THAT THE MAJORITY DOES NOT EVEN
ATTACK IT.  GEORGIA LAW MAKES A SHOWING OF DUE DILIGENCE ON THE PART OF
THE MOVANT A PREREQUISITE TO GRANTING EXTRAORDINARY MOTIONS FOR NEW
TRIAL.  THE STATE COURT IN THIS CASE FOUND THAT DUE DILIGENCE HAD NOT
BEEN PROPERLY PLEADED, AND THAT THE FACTS OF WHICH THE GEORGIA COURT
COULD TAKE NOTICE CONCLUSIVELY DEMONSTRATED THAT DILIGENCE WAS INDEED
COMPLETELY LACKING. 

ON THE FIRST GROUND, THERE IS CLEARLY SUBSTANTIAL SUPPORT IN THE
PRIOR STATE DECISIONS.  PETITIONER'S ATTORNEY STATED THAT "HE DID NOT
KNOW OF THE FACTS ESTABLISHING THE CONSTITUTIONAL CLAIM BEFORE THE
TRIAL AND BEFORE THE VERDICT IN SAID CASE, AND THAT THE SAME COULD NOT
HAVE BEEN DISCOVERED BY HIM IN THE EXERCISE OF ORDINARY DILIGENCE."  IT
HAD BEEN HELD IN AT LEAST FOUR PRIOR GEORGIA DECISIONS THAT SUCH
CONCLUSORY PLEADING OF DILIGENCE WAS INADEQUATE TO SUPPORT A MOTION FOR
A NEW TRIAL OR AN EXTRAORDINARY ACTION FOR THE SAME.  TAYLOR V. STATE,
132 GA. 235, 63 S.E. 1116; KING V. STATE, 174 GA. 432, 163 S.E. 168;
REDDING V. STATE, 183 GA.  704, 189 S.E. 514; EDGE V. STATE, 200 GA.
257, 36 S.E.2D 673.  (FN6) 

ON THE SECOND GROUND, THE GEORGIA OPINION SPEAKS FOR ITSELF: 

"FURTHERMORE, THE FACTS AND CIRCUMSTANCES CONTRADICT THE STATEMENTS
MADE IN THE AFFIDAVITS.  WHEN THE INSTANT CASE CAME ON FOR TRIAL IN
FULTON SUPERIOR COURT ON MARCH 10, 1953, THE CASE OF AVERY V. STATE HAD
BEEN TRIED IN THE SAME COUNTY, AND THAT CASE HAD BEEN AFFIRMED BY THIS
COURT ON APRIL 14, 1952, AND WAS PENDING IN THE UNITED STATES SUPREME
COURT  ...  .  THE OPINION OF THIS COURT AFFIRMING THE LOWER COURT IN
THE AVERY CASE SETS OUT FULLY THE METHODS AND PRACTICES EMPLOYED IN THE
SELECTION AND EMPANELING OF JURIES IN FULTON COUNTY, INCLUDING THE
PRACTICE OF PUTTING THE NAMES OF WHITE JURORS ON WHITE SLIPS OF PAPER
AND THE NAMES OF COLORED JURORS ON YELLOW SLIPS OF PAPER.  DUE
DILIGENCE WOULD CERTAINLY HAVE REQUIRED THE DEFENDANT AND HIS ATTORNEY
TO MAKE THEMSELVES FAMILIAR WITH THE OPINIONS OF THIS COURT ON THE
QUESTION NOW RAISED."  (FN7)  210 GA. 665, 668, 82 S.E.2D 217, 219. 

IT IS EVIDENT ON THIS RECORD THAT, EVEN IF THE GEORGIA COURT IS
DEEMED TO HAVE DISCRETION IN THIS MATTER, IT COULD ADHERE TO ITS
PRESENT DECISION AND NOT BE REVERSED IN THIS COURT WITHOUT A MAJOR
DEPARTURE FROM OUR DOCTRINES REQUIRING RESPECT FOR STATE PROCEDURAL
RULES AFFORDING A "REASONABLE OPPORTUNITY" TO PRESENT FEDERAL
QUESTIONS.  CF. PARKER V. ILLINOIS, 333 U.S. 571. 

HAD THE STATE COURT POSSESSED THE POWER, IT MIGHT HAVE BEEN DESIRABLE
TO HAVE PERMITTED PETITIONER TO ADJUDICATE HIS SUBSTANTIAL
CONSTITUTIONAL CLAIM INSTEAD OF SENDING HIM TO HIS DEATH BECAUSE HIS
ATTORNEY FAILED TO TAKE ADVANTAGE OF THE USUAL OPPORTUNITY AFFORDED BY
THE STATE LAW.  ON THE OTHER HAND, HAD THE JURY ACQUITTED PETITIONER,
HE WOULD NOT HAVE COMPLAINED ABOUT ANY UNCONSTITUTIONALITY IN ITS
SELECTION.  A STATE MAY BE INFLUENCED BY THE UNFAIRNESS OF ALLOWING THE
LITIGANT WHO REMAINS SILENT TWO CHANCES FOR ACQUITTAL WHILE GIVING THE
DILIGENT LITIGANT ONLY ONE.  AND ORDERLY ADMINISTRATION OF THE LAWS
OFTEN IMPOSES HARDSHIPS UPON THOSE WHO HAVE NOT PROPERLY PRESERVED
THEIR RIGHTS.  IN ANY EVENT, THE RESOLUTION OF THESE CONFLICTING
INTERESTS SHOULD BE A MATTER WHOLLY FOR THE GEORGIA COURTS.  SEE
HERNDON V. GEORGIA, 295 U.S. 441. 

FN1  THE COURT IN PATTERSON WAS MORE SCRUPULOUS ABOUT KEEPING ITS
OPINIONS ON STATE PROCEDURE TO ITSELF.  HERE, THE COURT SAYS: 

"FAIR REGARD  ...  FOR THE CONSTITUTIONAL COMMANDS BINDING ON ALL
COURTS COMPELS US TO REJECT THE ASSUMPTION THAT THE COURTS OF GEORGIA
WOULD ALLOW THIS MAN TO GO TO HS DEATH AS THE RESULT OF A CONVICTION
SECURED FROM A JURY WHICH THE STATE ADMITS WAS UNCONSTITUTIONALLY
IMPANELED." 

THIS CHARACTERIZATION IS ESPECIALLY UNFORTUNATE IN VIEW OF THE FACT
THAT THE STATE COURT, WITH FULL KNOWLEDGE OF ALL THE FACTS, HAS ALREADY
REFUSED TO ORDER A NEW TRIAL.  SEE PAGE 403, INFRA. 

FN2  CF. THE STATEMENT OF THE MAJORITY:  "BUT THE FACT THAT WE HAVE
JURISDICTION DOES NOT COMPEL US TO EXERCISE IT." 

FN3  THIS CHARGE UPON THE INTEGRITY OF A STATE SUPREME COURT IS SO
SERIOUS THAT THIS COURT HAS RESTRICTED SUCH FINDINGS TO CASES WHERE THE
STATE COURT DECISION LACKED "FAIR SUPPORT" IN THE STATE LAW.  SEE
ROGERS V. ALABAMA, 192 U.S. 226.  CF. FOX FILM CORP. V. MULLER, 296
U.S. 207, 209. 

FN4  SEE DAVIS V. WECHSLER, 263 U.S. 22; IOWA-DES MOINES NATIONAL
BANK V. BENNETT, 284 U.S. 239, 247.  CF. MISSOURI V. GEHNER, 281 U.S.
313 (1930). 

FN5  THE CASES CITED BY THE MAJORITY ARE NOT HELPFUL HERE.  IN ROGERS
V. ALABAMA, 192 U.S. 226, THE ALABAMA COURT STRUCK A FEDERAL CLAIM OF
DISCRIMINATION ON THE GROUND THAT THE PLEADING WAS PROLIX.  THE
PLEADING WAS TWO PAGES IN LENGTH.  IT GOES WITHOUT SAYING THAT THE
STATE WAS EVADING THE ISSUE.  IN ABIE STATE BANK V. BRYAN, 282 U.S.
765, THE BANK'S CONSTITUTIONAL PLEA THAT CONDITIONS HAD SO CHANGED AS
TO MAKE A STATE STATUTE CONFISCATORY WAS STRICKEN ON GROUNDS OF
ESTOPPEL, THE BANK HAVING ACQUIESCED IN THE REGULATION FOR SEVERAL
YEARS.  CHIEF JUSTICE HUGHES HELD THAT "EARLIER COMPLIANCE  ...  DOES
NOT FORFEIT THE RIGHT OF PROTEST  ... ."  282 U.S., AT 776.  IN VIEW OF
THE CHANGED CIRCUMSTANCES, THE STATE GROUND UNREASONABLY INTERFERED
WITH THE VINDICATION OF A FEDERAL RIGHT.  IN PIERRE V. LOUISIANA, 306
U.S. 354, THERE WAS A TIMELY OBJECTION, ON FEDERAL GROUNDS, TO THE
SYSTEMATIC EXCLUSION OF NEGROES FROM THE GRAND JURY LIST.  THIS COURT
FIRST REJECTED THE STATE'S CLAIM THAT THE ILLEGAL COMPOSITION WAS
HARMLESS ERROR, AND THEN AFFIRMED THE POWER OF THIS COURT TO MAKE AN
INDEPENDENT INVESTIGATION OF THE FACTS.  IN URIE V. THOMPSON, 337 U.S.
163, 172, MR. JUSTICE RUTLEDGE IN AN FELA CASE HELD THAT, SINCE THE
FINAL JUDGMENT RULE HAD PREVENTED ANY EARLIER CONSIDERATION BY THIS
COURT, LOCAL PRACTICE RULES COULD NOT BAR THIS COURT'S CONSIDERATION OF
"ALL SUBSTANTIAL FEDERAL QUESTIONS ACTUALLY DETERMINED IN EARLIER
STAGES OF THE LITIGATION."  AND IN VANDALIA R. CO. V. INDIANA EX REL.
SOUTH BEND, 207 U.S. 359, 367, MR. JUSTICE BREWER SAID, "EVEN IF IT BE
CONCEDED THAT THE CONCLUSION OF THE SUPREME COURT OF THE STATE IS NOT
FREE FROM DOUBT, THERE IS NOTHING TO JUSTIFY A SUSPICION THAT THERE WAS
ANY INTENT TO AVOID THE FEDERAL QUESTIONS ...  ."  WE AGREE THAT THIS
IS THE TEST HERE.    FN6  SMITH V. GEORGIA, 2 GA. APP. 574, 59 S.E.
311, CITED BY THE MAJORITY, IS NOT TO THE CONTRARY.   THERE THE COURT
RECOGNIZED THAT DUE DILIGENCE IS REQUIRED IN MAKING AN EXTRAORDINARY
MOTION FOR NEW TRIAL, AND HELD, CONSISTENT WITH THE GEORGIA PRACTICE OF
TREATING THE VARIOUS OBJECTIONS ON AN INDIVIDUAL BASIS, THAT THE
REQUIREMENT OF ORDINARY DILIGENCE HAD BEEN SATISFIED WHERE COUNSEL HAD
INTERROGATED THE SUBSEQUENTLY DISQUALIFIED JUROR CONCERNING HIS
RELATION WITH THE PROSECUTOR AND HAD OBTAINED A NEGATIVE ANSWER.    FN7
ON MAY 26, 1953, ON ITS FRONT PAGE, THE ATLANTA CONSTITUTION RAN A
COMPLETE STORY OF THE REVERSAL OF AVERY'S CASE HERE.  IT IS INTERESTING
TO NOTE THAT AN ARTICLE IN THE SAME PAPER POINTED OUT "THAT OLD CASES
IN WHICH CONVICTIONS WERE OBTAINED UNDER THE TWO-COLOR JURY SELECTION
SYSTEM COULD NOT BE REOPENED BECAUSE OBJECTIONS MUST HAVE BEEN MADE AT
THE TIME OF THE TRIAL."  THE SAME DAY, THE ATLANTA JOURNAL CARRIED A
STORY THAT FULTON COUNTY WAS "MOVING TO BAN DIFFERENT COLORED JURY
SLIPS."  THE SUBHEAD ON THE ARTICLE SAID, "COURT RULING AGAINST
PRACTICE DRAWS PREDICTION OF ACTION."  THIS ARTICLE CONCLUDED WITH A
PARAGRAPH: 

"THE CHANGE TO ALL-WHITE SLIPS WILL HAVE NO EFFECT ON CASES ALREADY
ADJUDICATED BUT WILL AFFECT CASES NOW IN PROGRESS WHERE THE POINT OF
DIFFERENT COLORED JURY SLIPS HAS BEEN RAISED." 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE CLARK
JOIN, DISSENTING. 

GEORGIA HAS A RULE OF LAW THAT THE JURY PANEL MUST BE CHALLENGED AT
THE THRESHOLD, THAT IS, AS GEORGIA EXPRESSES IT, BEFORE THE PANEL IS
"PUT UPON THE DEFENDANT."  IF THE PANEL IS NOT THUS CHALLENGED, THE
ISSUE CANNOT LATER BE RAISED AND IS CONSIDERED AS WAIVED "ONCE AND FOR
ALL."  WILLIAMS V. STATE, 210 GA. 665, 669, 82 S.E.2D 217, 220.  GA.
CODE ANN., SEC. 59-803.  SEE JORDAN V. STATE, 22 GA. 545. 

THIS IS A REASONABLE RULE.  IT GIVES THE STATE AN OPPORTUNITY TO MEET
THE CHALLENGE AND TO JUSTIFY THE ARRAY, OR, IF IT IS IMPROPERLY
CONSTITUTED, AN OPPORTUNITY TO CORRECT IT. 

IN THE INSTANT CASE, THE CHALLENGE TO THE ARRAY WAS NOT PRESENTED AT
THE TIME THE PANEL WAS PUT UPON THE PETITIONER-DEFENDANT.  IF THE
DEFENDANT THUS FAILS TO CHALLENGE THE ARRAY BEFORE IT IS PUT UPON HIM,
HE MAY NOT RAISE THE QUESTION AS TO ITS LEGALITY FOR THE FIRST TIME IN
A MOTION FOR A NEW TRIAL.  LUMPKIN V. STATE, 152 GA. 229, 231, 109 S.E.
664, 665.  SUCH A REQUIREMENT COMPLIES WITH THE FEDERAL CONSTITUTION. 
BROWN V. ALLEN, 344 U.S. 443, 480. 

SINCE PETITIONER DID NOT AND COULD NOT RAISE THE QUESTION ON A MOTION
FOR NEW TRIAL FOR THE FIRST TIME, IT WOULD SEEM THAT HE COULD NOT RAISE
IT ON AN EXTRAORDINARY MOTION FOR A NEW TRIAL.  THE TRIAL COURT
DISMISSED THE MOTION, AND THE STATE SUPREME COURT AFFIRMED.  FIRST, THE
COURT HELD THAT THE PETITIONER COULD NOT CHALLENGE THE ARRAY FOR THE
FIRST TIME BY MOTION FOR A NEW TRIAL OR EXTRAORDINARY MOTION FOR A NEW
TRIAL.  THE GEORGIA SUPREME COURT ON THAT SAID: 

"IT IS SETTLED LAW IN THIS STATE THAT, WHEN A PANEL OF JURORS IS PUT
UPON THE PRISONER, HE SHOULD CHALLENGE THE ARRAY FOR ANY CAUSE WHICH
WOULD GO TO SHOW THAT IT WAS NOT FAIRLY AND PROPERLY PUT UPON HIM, AND
THAT IF HE FAILS TO DO SO, THE OBJECTION IS WAIVED AND CAN NOT
THEREAFTER BE MADE A GROUND OF A MOTION FOR NEW TRIAL.  SEE LUMPKIN V.
STATE, 152 GA.  229 (109 S.E. 664); CORNELIOUS V. STATE, 193 GA. 25 (17
S.E.2D 156); CUMMING V. STATE, 155 GA. 346 (117 S.E. 378); MOON V.
STATE, 68 GA. 687; AND WILLIAMS V. STATE, 31 GA. APP. 173 (120 S.E.
131).  IN THE INSTANT CASE, THE DEFENDANT MADE NO OBJECTION TO THE JURY
WHEN THE PANEL WAS PUT UPON HIM, AND MADE NO OBJECTION UNTIL HE FILED
THIS EXTRAORDINARY MOTION FOR NEW TRIAL AFTER A NEW TRIAL HAD BEEN
DENIED AND THAT JUDGMENT AFFIRMED BY THIS COURT.  SEE WILLIAMS V.
STATE, ANTE.  IT FOLLOWS, THEREFORE, THAT THE JUDGMENT OF THE COURT
BELOW DISMISSING THE EXTRAORDINARY MOTION FOR NEW TRIAL WAS NOT ERROR. 

"THE DEFENDANT AND HIS ATTORNEY STATE THAT THEY DID NOT KNOW OF THE
FACTS SET OUT IN GROUNDS ONE AND TWO OF THE MOTION FOR NEW TRIAL, AND
'THAT THE SAME COULD NOT HAVE BEEN DISCOVERED BY HIM IN THE EXERCISE OF
ORDINARY DILIGENCE.'  THIS IS NOT SUFFICIENT TO EXCUSE THE DEFENDANT
FROM THE NECESSITY OF PRESENTING HIS WRITTEN CHALLENGE TO THE ARRAY OF
TRAVERSE JURORS WHEN THE PANEL WAS PUT UPON HIM.   SEE, IN THIS
CONNECTION, LUMPKIN V. STATE, SUPRA; CORNELIOUS V. STATE, SUPRA;
REDDING V. STATE, 183 GA. 704 (189 S.E. 514); EDGE V. STATE, 200 GA.
257 (36 S.E.2D 673).  IT FOLLOWS, UNDER THE DECISIONS OF THIS COURT
ABOVE CITED, IT WAS NOT ERROR TO DISMISS THE EXTRAORDINARY MOTION FOR
NEW TRIAL."  210 GA. 665, 667-668, 82 S.E.2D 217, 218-219. 

AFTER DECIDING THIS MATTER OF STATE LAW, THE SUPREME COURT OF GEORGIA
FURTHER HELD THAT THE EXTRAORDINARY MOTION WAS INSUFFICIENT.  THE
DEFENDANT, IN HIS AFFIDAVIT SUPPORTING THE MOTION, DEPOSED:  "'THE
DEFENDANT DID NOT AT THE TIME OF HIS TRIAL  ...  HAVE ANY INFORMATION
CONCERNING THE SELECTION, DRAWING, ORGANIZING, AND IMPANELING OF THE
JURY PANEL PUT UPON HIM ON HIS TRIAL, BUT ASSUMED THAT THE JURY WAS A
LEGAL JURY.'"  ID., AT 668, 82 S.E.2D, AT 219.  ALSO DEFENDANT'S
ATTORNEY DEPOSED IN HIS SUPPORTING AFFIDAVIT THAT HE "'DID NOT KNOW OF
THE FACTS SET OUT IN THE FIRST AND SECOND GROUNDS OF THE EXTRAORDINARY
MOTION FOR NEW TRIAL  ...  BEFORE THE TRIAL AND BEFORE THE VERDICT IN
SAID CASE, AND THAT THE SAME COULD NOT HAVE BEEN DISCOVERED BY HIM IN
THE EXERCISE OF ORDINARY DILIGENCE.'"  IBID. 

SUCH ALLEGATIONS, THE COURT HELD, WERE "MERELY OPINION, WITHOUT
SUFFICIENT FACTS BEING SHOWN BY WHICH THE COURT COULD JUDGE WHETHER DUE
DILIGENCE HAD BEEN EXERCISED, AND ARE NOT SUFFICIENT TO SUPPORT AN
EXTRAORDINARY MOTION FOR NEW TRIAL.  EDGE V. STATE, SUPRA; REDDING V.
STATE, SUPRA." IBID. 

THUS THE GEORGIA SUPREME COURT HELD, FIRST, THAT THE CHALLENGE TO THE
ARRAY MUST BE MADE WHEN THE ARRAY IS PUT UPON THE DEFENDANT AND CANNOT
BE MADE LATER BY MOTION FOR A NEW TRIAL OR EXTRAORDINARY MOTION FOR NEW
TRIAL; AND, SECOND, THAT THE GROUNDS FOR THE LATTER MOTION WERE
INSUFFICIENT. 

THIS FIRST HOLDING IS A WELL-ESTABLISHED RULE OF LAW OF GEORGIA AND
DOES NOT SEEM TO HAVE BEEN APPLIED DISCRIMINATORILY SO AS TO DENY
PETITIONER THE EQUAL PROTECTION OF THE LAW.  HE HAD THE SAME RIGHT AND
OPPORTUNITY TO RAISE THE QUESTION AS ANYONE ELSE. 

THE PROMULGATION OF SUCH A RULE OF LAW IS, AS WE HAVE POINTED OUT,
FAIR AND REASONABLE AND CANNOT BE SAID TO DENY DUE PROCESS OF LAW. 
GEORGIA HAS PROVIDED A REASONABLE TIME AND MANNER IN WHICH THE QUESTION
COULD BE RAISED.  PETITIONER DID NOT TAKE ADVANTAGE OF IT, PROBABLY
BECAUSE, AS HIS ATTORNEY ALLEGED IN HIS AFFIDAVIT, HE "DEVOTED HIS TIME
AND EFFORTS TO ASCERTAINING THE NATURE OF THE EVIDENCE TO BE PRESENTED
BY THE STATE OF GEORGIA UPON THE TRIAL." 

THIS COURT CITES A NUMBER OF GEORGIA CASES IN WHICH EXTRAORDINARY
MOTIONS WERE GRANTED BY THE GEORGIA SUPREME COURT WHERE AN INDIVIDUAL
JUROR WITHOUT KNOWLEDGE OF THE FACTS WAS PERMITTED TO SIT EVEN THOUGH
DISQUALIFIED.  BUT, IN EACH OF THESE CASES, PROPER MOTIONS IN DUE FORM
AND SUFFICIENT WERE PRESENTED AND THE QUESTION RAISED AT THE FIRST
OPPORTUNITY. 

THIS COURT NOW SAYS THAT THE GEORGIA SUPREME COURT HAS THE POWER TO
GRANT THE PETITIONER'S MOTION.   I SUPPOSE THAT IT HAS, BUT I WOULD NOT
THINK THAT IT HAD DENIED A FEDERAL CONSTITUTIONAL RIGHT IF IT DID NOT
CHANGE ITS RULE.  IN FACT, I THINK IT WOULD LEAD TO ABSURD RESULTS IF
IT CHANGED ITS RULE THAT THE CHALLENGE TO THE ARRAY MUST BE MADE AT THE
THRESHOLD.  THE DEFENDANT, KNOWING OF AN ERROR IN THE CONSTITUTION OF
THE ARRAY, COULD LAY LOW AND ALWAYS HAVE A BUILT-IN ERROR ON WHICH HE
COULD RELY IF HE DID NOT LIKE THE RESULTS AT THE TRIAL.  GEORGIA IS NOT
BOUND TO CHANGE ITS RULE ON PENALTY OF A VIOLATION OF THE FEDERAL
CONSTITUTION.  AVERY V. GEORGIA, 345 U.S. 559, DOES NOT DECIDE THIS
CASE BECAUSE IN THAT PROCEEDING THE CHALLENGE WAS TIMELY MADE. 

WE DO NOT SIT AS A LEGAL CRITIC TO INDICATE HOW WE THINK COURTS
SHOULD ACT.  IF A FEDERAL CONSTITUTIONAL RIGHT IS NOT PRESENTED, WE
HAVE NO DUTY TO PERFORM.  THERE WAS NO DENIAL OF EQUAL PROTECTION OF
THE LAW OR OF DUE PROCESS.  THIS CASE WAS DISPOSED OF BY THE GEORGIA
SUPREME COURT ALTOGETHER ON STATE GROUNDS.  IN SUCH CIRCUMSTANCES OUR
DUTY IS CLEAR.  AS WE STATED IN EDELMAN V. CALIFORNIA, 344 U.S. 357,
358-359: 

"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, 202 U.S. 275 (1906); MUTUAL LIFE INS.
CO. V. MCGREW, 188 U.S. 291, 308 (1903).  NONCOMPLIANCE WITH SUCH LOCAL
LAW CAN THUS BE AN ADEQUATE STATE GROUND FOR A DECISION BELOW  ...  ." 

THEREFORE, I WOULD DISMISS THE WRIT OF CERTIORARI AS IMPROVIDENTLY
GRANTED. 
..END :




















CARROLL V. LANZA, DOING BUSINESS AS LAKE CHARLES ELECTRIC CO. 349 U.S.
408 


NO. 375.  ARGUED MARCH 31, 1955 - DECIDED JUNE 6, 1955 - 216 F.2D 808,
REVERSED. 


AN EMPLOYEE OF A SUBCONTRACTOR DOING WORK FOR A GENERAL CONTRACTOR WAS
INJURED AS A RESULT OF THE LATTER'S NEGLIGENCE.  THE EMPLOYEE AND THE
SUBCONTRACTOR WERE RESIDENTS OF MISSOURI AND THE CONTRACT OF EMPLOYMENT
WAS MADE IN MISSOURI; BUT THE WORK WAS DONE AND THE INJURY OCCURRED IN
ARKANSAS.  UNAWARE THAT HE HAD A REMEDY UNDER ARKANSAS LAW, THE
EMPLOYEE AUTOMATICALLY RECEIVED 34 WEEKLY PAYMENTS FOR THE INJURY UNDER
THE MISSOURI COMPENSATION ACT, WHICH PROVIDES EXCLUSIVE REMEDIES FOR
INJURIES RECEIVED INSIDE OR OUTSIDE THE STATE UNDER EMPLOYMENT
CONTRACTS MADE IN MISSOURI, EVEN AS AGAINST THE GENERAL CONTRACTOR; BUT
THERE WAS NO FINAL AWARD UNDER THAT ACT.  THE ARKANSAS WORKMEN'S
COMPENSATION ACT PROVIDES AN EXCLUSIVE REMEDY OF THE EMPLOYEE AGAINST
HIS EMPLOYER BUT NOT AGAINST THE GENERAL CONTRACTOR.  THE EMPLOYEE SUED
THE GENERAL CONTRACTOR IN ARKANSAS AND OBTAINED A JUDGMENT FOR COMMON
LAW DAMAGES.  HELD:  THE ARKANSAS JUDGMENT DID NOT DENY FULL FAITH AND
CREDIT TO THE MISSOURI LAW, AND THE JUDGMENT IS SUSTAINED.  PP. 409
414. 

(A)  MAGNOLIA PETROLEUM CO. V. HUNT, 320 U.S. 430, DISTINGUISHED. 
PP. 410-411. 

(B)  THE FULL FAITH AND CREDIT CLAUSE DOES NOT MAKE MISSOURI'S
WORKMEN'S COMPENSATION STATUTE A BAR TO ARKANSAS' COMMON-LAW REMEDY. 
PP. 411-414. 

(C)  IN PERSONAL INJURY CASES, THE STATE WHERE THE INJURY OCCURS IS
NOT REQUIRED BY THE FULL FAITH AND CREDIT CLAUSE TO ALLOW ONLY THAT
REMEDY WHICH IS MARKED AS THE EXCLUSIVE ONE BY THE STATE WHERE THE
CONTRACT OF EMPLOYMENT WAS MADE.  PACIFIC EMPLOYERS INS. CO. V.
COMMISSION, 306 U.S. 493.  PP. 412-413. 

(D)  HUGHES V. FETTER, 341 U.S. 609, DISTINGUISHED.  P. 413. 

CARROLL ET AL. V. LANZA, DOING BUSINESS AS LAKE CHARLES ELECTRIC CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

CARROLL, THE PETITIONER, WAS AN EMPLOYEE OF HOGAN, AN INTERVENOR, WHO
IN TURN WAS A SUBCONTRACTOR DOING WORK FOR THE RESPONDENT LANZA, THE
GENERAL CONTACTOR.  CARROLL AND HOGAN WERE RESIDENTS OF MISSOURI; AND
CARROLL'S EMPLOYMENT CONTRACT WITH HOGAN WAS MADE IN MISSOURI.  THE
WORK, HOWEVER, WAS DONE IN ARKANSAS; AND IT WAS THERE THAT THE INJURY
OCCURRED. 

CARROLL, NOT AWARE THAT HE HAD REMEDIES UNDER THE ARKANSAS LAW,
RECEIVED 34 WEEKLY PAYMENTS FOR THE INJURY UNDER THE MISSOURI
COMPENSATION ACT.  THE MISSOURI ACT IS APPLICABLE TO INJURIES RECEIVED
INSIDE OR OUTSIDE THE STATE WHERE THE EMPLOYMENT CONTRACT AS HERE, IS
MADE IN THE STATE.  MO. REV. STAT., 1949, SEC. 287.110.  THE MISSOURI
ACT ALSO PROVIDES THAT EVERY EMPLOYER AND EMPLOYEE SHALL BE
"CONCLUSIVELY PRESUMED TO HAVE ELECTED TO ACCEPT" ITS PROVISIONS UNLESS
"PRIOR TO THE ACCIDENT" HE SHALL HAVE FILED WITH THE COMPENSATION
COMMISSION A WRITTEN NOTICE THAT HE "ELECTS" TO REJECT THE COMPENSATION
PROVISION.  ID., SEC. 287.060.  NO SUCH NOTICE, HOWEVER, WAS FILED IN
THIS CASE.  MOREOVER, THE MISSOURI ACT PROVIDES THAT THE RIGHTS AND
REMEDIES GRANTED BY IT "SHALL EXCLUDE ALL OTHER RIGHTS AND REMEDIES
...  AT COMMON LAW OR OTHERWISE," ON ACCOUNT OF THE INJURY OR DEATH. 
(FN1)  ID., SEC. 287.120. 

ARKANSAS ALSO HAS PROVISIONS FOR WORKMEN'S COMPENSATION.  ARK. STAT.
1947, SEC. 81-1301 ET SEQ. IT PROVIDES THE EXCLUSIVE REMEDY OF  HE
EMPLOYEE AGAINST THE EMPLOYER (ID., SEC. 81-1304) BUT NOT AGAINST A
THIRD PART.  ID., SEC. 81-1340.  AND THE COURT BELOW, ON REVIEW OF
ARKANSAS AUTHORITIES, CONCLUDED THAT A GENERAL CONTACTOR, SUCH AS
LANZA, THE RESPONDENT, WAS A THIRD PARTY WITHIN THE MEANING OF THE
ARKANSAS ACT.  AND SEE BALDWIN CO. V. MANER, - ARK. - , 273 S.W.2D 28. 

WHILE CARROLL WAS RECEIVING WEEKLY PAYMENTS UNDER THE MISSOURI ACT,
HE DECIDED TO SUE LANZA FOR COMMON-LAW DAMAGES IN THE ARKANSAS COURTS. 
LANZA HAD THE CASE REMOVED TO THE FEDERAL DISTRICT COURT WHERE JUDGMENT
WAS RENDERED FOR CARROLL.  (FN2)  116 F. SUPP. 491.  THE COURT OF
APPEALS, WHILE AGREEING WITH THE DISTRICT COURT THAT THE JUDGMENT WAS
SUSTAINABLE AS A MATTER OF ARKANSAS LAW, REVERSED ON THE GROUND THAT
THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION (FN3) (ART. IV,
SEC. 1) BARRED RECOVERY.  216 F.2D 808.  THE CASE IS HERE BY PETITION
FOR CERTIORARI WHICH WE GRANTED (348 U.S. 870) BECAUSE OF DOUBTS AS TO
THE CORRECTNESS OF THE DECISION RAISED BY PACIFIC EMPLOYERS INSURANCE
CO. V. COMMISSION, 306 U.S. 493. 

THE COURT OF APPEALS THOUGHT MAGNOLIA PETROLEUM CO. V. HUNT, 320 U.S.
430, TO BE CONTROLLING.  THERE THE EMPLOYEE HAVING RECEIVED A FINAL
AWARD FOR COMPENSATION IN THE FORUM OF THE INJURY RETURNED TO HIS HOME
STATE AND SUED TO RECOVER UNDER ITS COMPENSATION ACT.  WE HELD THAT THE
LATTER SUIT WAS PRECLUDED BY THE FULL FAITH AND CREDIT CLAUSE.  BUT
HERE THERE WAS NO FINAL AWARD UNDER THE MISSOURI ACT.  UNDER THAT ACT
THE STATUTORY PAYMENTS APPARENTLY START AUTOMATICALLY ON RECEIPT OF
NOTICE OF THE INJURY.  MO. REV. STAT., 1949, SECS. 287.380, 287.400. 
WHILE PROVISION IS MADE FOR AN ADJUDICATION OF DISPUTES BETWEEN AN
EMPLOYEE AND HIS EMPLOYER (ID., SECS. 287 400, 287.450), NO
ADJUDICATION WAS SOUGHT OR OBTAINED HERE. 

NOR DO WE HAVE A CASE WHERE AN EMPLOYEE, KNOWING OF TWO REMEDIES
WHICH PURPORT TO BE MUTUALLY EXCLUSIVE, CHOOSES ONE AS AGAINST THE
OTHER AND THEREFORE IS PRECLUDED A SECOND CHOICE BY THE LAW OF THE
FORUM.  RATHER WE HAVE THE NAKED QUESTION WHETHER THE FULL FAITH AND
CREDIT CLAUSE MAKES MISSOURI'S STATUTE A BAR TO ARKANSAS' COMMON-LAW
REMEDY. 

A STATUTE IS A "PUBLIC ACT" WITHIN THE MEANING OF THE FULL FAITH AND
CREDIT CLAUSE.  SEE BRADFORD ELECTRIC CO. V. CLAPPER, 286 U.S. 145, 154
155, AND CASES CITED; ALASKA PACKERS ASSN. V. COMMISSION, 294 U.S.
532.  IT WAS INDEED HELD IN THE CLAPPER CASE THAT A VERMONT
COMPENSATION ACT, WHICH PURPORTED TO GIVE AN EXCLUSIVE REMEDY, BARRED A
COMMON-LAW ACTION ON THE SAME CLAIM IN THE NEW HAMPSHIRE COURTS BY A
VERMONT EMPLOYEE AGAINST A VERMONT EMPLOYER, EVEN THOUGH THE INJURY
OCCURRED IN NEW HAMPSHIRE.  THE CLAPPER CASE ALLOWED A STATE TO FIX ONE
EXCLUSIVE REMEDY FOR PERSONAL INJURIES INVOLVING ITS RESIDENTS, AND
REQUIRED THE OTHER STATES TO REFUSE TO ENFORCE ANY INCONSISTENT
REMEDY.  THUS, AS RESPECTS PERSONS RESIDING OR BUSINESS LOCATED IN A
STATE, A REMEDY WAS PROVIDED EMPLOYEES THAT WAS "BOTH EXPEDITIOUS AND
INDEPENDENT OF PROOF OF FAULT," AND A LIABILITY WAS IMPOSED ON
EMPLOYERS THAT WAS "LIMITED AND DETERMINATE."  286 U.S., AT 159. 

PACIFIC EMPLOYERS INSURANCE CO. V. COMMISSION, 306 U.S. 493,
DEPARTED, HOWEVER, FROM THE CLAPPER DECISION.  THERE A RESIDENT OF
MASSACHUSETTS REGULARLY EMPLOYED IN MASSACHUSETTS BY A MASSACHUSETTS
CORPORATION WAS INJURED WHILE DOING TEMPORARY DUTY IN CALIFORNIA.  THE
MASSACHUSETTS COMPENSATION ACT PURPORTED TO GIVE AN EXCLUSIVE REMEDY,
EVEN FOR INJURIES INCURRED BEYOND ITS BORDERS.  BUT CALIFORNIA ALSO HAD
A COMPENSATION ACT WHICH UNDERTOOK TO FIX LIABILITY ON EMPLOYERS,
IRRESPECTIVE OF ANY CONTRACT, RULE, OR REGULATION, A PROVISION WHICH
THE CALIFORNIA COURTS STRICTLY ENFORCED.  THE COURT, THEREFORE, HELD
THAT THE EXCLUSIVE NATURE OF THE MASSACHUSETTS ACT WAS "OBNOXIOUS" TO
THE POLICY OF CALIFORNIA.  THE COURT PROCEEDED ON THE PREMISE, REPEATED
OVER AND AGAIN IN THE CASES, THAT THE FULL FAITH AND CREDIT CLAUSE DOES
NOT REQUIRE A STATE TO SUBSTITUTE FOR ITS OWN STATUTE, APPLICABLE TO
PERSONS AND EVENTS WITHIN IT, THE STATUTE OF ANOTHER STATE REFLECTING A
CONFLICTING AND OPPOSED POLICY.  ID., AT 502. 

THE PACIFIC EMPLOYERS INSURANCE CO. CASE ALLOWED THE COMPENSATION ACT
OF THE PLACE OF THE INJURY TO OVERRIDE THE COMPENSATION ACT OF THE HOME
STATE.  HERE IT IS A COMMON-LAW ACTION THAT IS ASSERTED AGAINST THE
EXCLUSIVENESS OF THE REMEDY OF THE HOME STATE; AND THAT IS SEIZED ON AS
MARKING A DIFFERENCE.  THAT IS NOT IN OUR JUDGMENT A MATERIAL
DIFFERENCE.  WHATEVER DEPRIVES THE REMEDY OF THE HOME STATE OF ITS
EXCLUSIVE CHARACTER QUALIFIES OR CONTRAVENES THE POLICY OF THAT STATE
AND DENIES IT FULL FAITH AND CREDIT, IF FULL FAITH AND CREDIT IS DUE. 
BUT THE PACIFIC EMPLOYERS INSURANCE CO. CASE TEACHES THAT IN THESE
PERSONAL INJURY CASES THE STATE WHERE THE INJURY OCCURS NEED NOT BE A
VASSAL TO THE HOME STATE AND ALLOW ONLY THAT REMEDY WHICH THE HOME
STATE HAS MARKED AS THE EXCLUSIVE ONE.  THE STATE OF THE FORUM ALSO HAS
INTERESTS TO SERVE AND TO PROTECT.  HERE ARKANSAS HAS OPENED ITS COURTS
TO NEGLIGENCE SUITS AGAINST PRIME CONTRACTORS, REFUSING TO MAKE RELIEF
BY WAY OF WORKMEN'S COMPENSATION THE EXCLUSIVE REMEDY.  BALDWIN CO. V.
MANER, SUPRA.  HER INTERESTS ARE LARGE AND CONSIDERABLE AND ARE TO BE
WEIGHED NOT ONLY IN THE LIGHT OF THE FACTS OF THIS CASE BUT BY THE KIND
OF SITUATION PRESENTED.  FOR WE WRITE NOT ONLY FOR THIS CASE AND THIS
DAY ALONE, BUT FOR THIS TYPE OF CASE.  THE STATE WHERE THE TORT OCCURS
CERTAINLY HAS A CONCERN IN THE PROBLEMS FOLLOWING IN THE WAKE OF THE
INJURY.  THE PROBLEMS OF MEDICAL CARE AND OF POSSIBLE DEPENDENTS ARE
AMONG THESE, AS PACIFIC EMPLOYERS INSURANCE CO. V. COMMISSION, SUPRA,
EMPHASIZES.  ID., AT 501.  A STATE THAT LEGISLATES CONCERNING THEM IS
EXERCISING TRADITIONAL POWERS OF SOVEREIGNTY.  CF. WATSON V. EMPLOYERS
LIABILITY CORP., 348 U.S. 66, 73.  ARKANSAS THEREFORE HAS A LEGITIMATE
INTEREST IN OPENING HER COURTS TO SUITS OF THIS NATURE, EVEN THOUGH IN
THIS CASE CARROLL'S INJURY MAY HAVE CAST NO BURDEN ON HER OR ON HER
INSTITUTIONS. 

THIS IS NOT A CASE LIKE HUGHES V. FETTER, 341 U.S. 609, WHERE THE
STATE OF THE FORUM SEEKS TO EXCLUDE FROM ITS COURTS ACTIONS ARISING
UNDER A FOREIGN STATUTE.  IN THAT CASE, WE HELD THAT WISCONSIN COULD
NOT REFUSE TO ENTERTAIN A WRONGFUL DEATH ACTION UNDER AN ILLINOIS
STATUTE FOR AN INJURY OCCURRING IN ILLINOIS, SINCE WE FOUND NO
SUFFICIENT POLICY CONSIDERATIONS TO WARRANT SUCH REFUSAL.  AND SEE
BRODERICK V. ROSNER, 294 U.S. 629.  THE PRESENT CASE IS A MUCH WEAKER
ONE FOR APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE.  ARKANSAS, THE
STATE OF THE FORUM, IS NOT ADOPTING ANY POLICY OF HOSTILITY TO THE
PUBLIC ACTS OF MISSOURI.  IT IS CHOOSING TO APPLY ITS OWN RULE OF LAW
TO GIVE AFFIRMATIVE RELIEF FOR AN ACTION ARISING WITHIN ITS BORDERS. 

MISSOURI CAN MAKE HERE COMPENSATION ACT EXCLUSIVE, IF SHE CHOOSES,
AND ENFORCE IT AS SHE PLEASES WITHIN HER BORDERS.  ONCE THAT POLICY IS
EXTENDED INTO OTHER STATES, DIFFERENT CONSIDERATIONS COME INTO PLAY. 
ARKANSAS CAN ADOPT MISSOURI'S POLICY IF SHE LIKES.  OR, AS THE PACIFIC
EMPLOYERS INSURANCE CO. CASE TEACHES, SHE MAY SUPPLEMENT IT OR DISPLACE
IT WITH ANOTHER, INSOFAR AS REMEDIES FOR ACTS OCCURRING WITHIN HER
BOUNDARIES ARE CONCERNED.  WERE IT OTHERWISE, THE STATE WHERE THE
INJURY OCCURREDWOULD BE POWERLESS TO PROVIDE ANY REMEDIES OR SAFEGUARDS
TO NONRESIDENT EMPLOYEES WORKING WITHIN ITS BORDERS.  WE DO NOT THINK
THE FULL FAITH AND CREDIT CLAUSE DEMANDS THAT SUBSERVIENCY FROM THE
STATE OF THE INJURY.  REVERSED. 

FN1  THE MISSOURI SUPREME COURT HAS CONSTRUED THE MISSOURI
COMPENSATION ACT AS PROVIDING THE EXCLUSIVE REMEDY, EVEN WHEN, AS HERE,
THE EMPLOYEE OF THE SUBCONTRACTOR SUES THE GENERAL CONTRACTOR FOR
COMMON-LAW DAMAGES.  BUNNER V. PATTI, 343 MO. 274, 283, 121 S.W.2D 153,
156-157.  THE TOUCHSTONE SEEMS TO BE THE EXISTENCE OF A MISSOURI
EMPLOYMENT CONTRACT, SUCH AS EXISTS IN THE PRESENT CASE, WHEREVER THE
INJURY MAY HAVE OCCURRED.  WE CAN FIND NO SUGGESTION IN THE MISSOURI
CASES THAT THE MISSOURI COMPENSATION ACT IS NOT THE EXCLUSIVE REMEDY
AGAINST THE PRIME CONTRACTOR WHEN HIS CONTRACT WITH THE SUBCONTRACTOR
IS MADE OUTSIDE MISSOURI.  NO SUCH SUGGESTION IS MADE BY ANY OF THE
PARTIES TO THIS LITIGATION. 

FN2  HOGAN AND HIS INDEMNITY COMPANY, INTERVENORS, WERE GRANTED A
LIEN ON THE JUDGMENT IN FAVOR OF CARROLL FOR THE AMOUNTS PAID TO
CARROLL AS COMPENSATION. 

FN3  ARTICLE IV, SEC. 1 OF THE CONSTITUTION PROVIDES: 

"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." 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON AND MR. JUSTICE
HARLAN JOIN, DISSENTING. 

IN ORDER TO PLACE THE PROBLEMS PRESENTED BY THIS CASE IN THE PROPER
CONTEXT FOR ADJUDICATION, IT HAS SEEMED TO ME DESIRABLE TO EXAMINE THE
COURSE OF THE COURT'S DECISIONS TOUCHING THE CONSTITUTIONAL REQUIREMENT
FOR GIVING FULL FAITH AND CREDIT TO STATUTES OF A SISTER STATE. 

THE CASES FALL INTO THREE MAIN GROUPS:  (FN1) 

(1)  THOSE IN WHICH THE FORUM WAS CALLED UPON TO GIVE EFFECT TO A
SISTER-STATE STATUTE AND DECLINED TO DO SO. 

HANCOCK NATIONAL BANK V. FARNUM, 176 U.S. 640; ATCHISON, TOPEKA &
SANTA FE R. CO. V. SOWERS, 213 U.S. 55; TENNESSEE COAL, IRON & R. CO.
V. GEORGE, 233 U.S. 354; CLARK V. WILLIARD, 292 U.S. 112; BRODERICK V.
ROSNER, 294 U.S. 629; HUGHES V. FETTER, 341 U.S. 609; FIRST NATIONAL
BANK OF CHICAGO V. UNITED AIR LINES, INC., 342 U.S. 396; WELLS V.
SIMONDS ABRASIVE CO., 345 U.S. 514. 

FROM THESE CASES IT APPEARS THAT THE FORUM CANNOT BY STATUTE OR
OTHERWISE, REFUSE TO ENFORCE A SISTER-STATE STATUTE GIVING A TRANSITORY
CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT.  E.G., BRODERICK V.
ROSNER, SUPRA; HUGHES V. FETTER, SUPRA.  INDEED, THE FORUM MAY
PERMISSIBLY GO A STEP IN THE OTHER DIRECTION AND DISREGARD THE VENUE
PROVISIONS OF AN OUT-OF-STATE STATUTE WHICH WOULD HAVE PREVENTED THE
FORUM FROM ENFORCING THE RIGHT.  TENNESSEE COAL, IRON & R. CO. V.
GEORGE, SUPRA.  THE FORUM MAY, HOWEVER, APPLY ITS OWN MORE RESTRICTIVE
STATUTE OF LIMITATIONS TO AN OUTSIDE WRONGFUL DEATH ACTION, WELLS V.
SIMONDS ABRASIVE CO., SUPRA, AND DICTA INDICATE THAT IT MAY REFUSE TO
ENFORCE A PENAL LAW, A LAW FOUND ANTAGONISTIC TO THE FORUM'S PUBLIC
POLICY, OR A LAW WHICH REQUIRES SPECIALIZED PROCEEDINGS OR REMEDIES NOT
AVAILABLE IN THE FORUM, SEE BRODERICK V. ROSNER, 294 U.S., AT 642-643;
HUGHES V. FETTER, 341 U.S., AT 612. 

(2)  THOSE IN WHICH THE FORUM APPLIED ITS OWN STATUTE RATHER THAN
THAT IF A SISTER STATE BECAUSE THE LATTER WAS NOT OF LIMITING
EXCLUSIVENESS, OR IN WHICH THE FORUM APPLIED THE SISTER-STATE STATUTE
BECAUSE THE FORUM'S WAS NOT EXCLUSIVE. 

BOND V. HUME, 243 U.S. 15; OHIO V. CHATTANOOGA BOILER & TANK CO., 289
U.S. 439; INDUSTRIAL COMMISSION V. MCCARTIN, 330 U.S. 622.  SEE ALSO
BONAPARTE V. TAX COURT, 104 U.S. 592; AMERICAN FIRE INSURANCE CO. V.
KING LUMBER & MFG. CO., 250 U.S. 2. 

THESE CASES PROVE THAT, WHERE THE STATUTE OF EITHER THE FORUM OR THE
OUTSIDE STATE IS NOT FOUND TO BE EXCLUSIVE REGARDING REMEDIES OR RIGHTS
ELSEWHERE, THE STATUTE NEED NOT BE ACCORDED EXCLUSIVE EFFECT.  FURTHER,
THE COURT HAS STATED THAT, IN THE AREA OF WORKMEN'S COMPENSATION,
"UNMISTAKABLE LANGUAGE" IS REQUIRED BEFORE EXCLUSIVENESS WILL BE
ATTRIBUTED.  SEE INDUSTRIAL COMMISSION V. MCCARTIN, 330 U.S., AT 628. 
(3)  THOSE IN WHICH THE FORUM APPLIED ITS OWN SUBSTANTIVE LAW,
STATUTORY OR JUDICIAL, WHEN CLEARLY IN CONFLICT WITH THE OUT-OF-STATE
STATUTE. 

NATIONAL MUTUAL BUILDING & LOAN ASSOCIATION V. BRAHAN, 193 U.S. 635;
OLMSTED V. OLMSTED, 216 U.S. 386; CONVERSE V. HAMILTON, 224 U.S. 243;
NEW YORK LIFE INSURANCE CO. V. HEAD, 234 U.S. 149; SUPREME COUNCIL OF
THE ROYAL ARCANUM V. GREEN, 237 U.S. 531; HOOD V. MCGEHEE, 237 U.S.
611; MARIN V. AUGEDAHL, 247 U.S. 142; AETNA LIFE INSURANCE CO. V.
DUNKEN, 266 U.S. 389; MODERN WOODMEN OF AMERICA V. MIXER, 267 U.S. 544;
BRADFORD ELECTRIC LIGHT CO. V. CLAPPER, 286 U.S. 145; ALASKA PACKERS
ASSOCIATION V. INDUSTRIAL ACCIDENT COMM'N, 294 U.S. 532; CHANDLER V.
PEKETZ, 297 U.S. 609; JOHN HANCOCK MUTUAL LIFE INSURANCE CO. V. YATES,
299 U.S. 178; SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD V. BOLIN, 305
U.S. 66; PACIFIC EMPLOYERS INSURANCE CO. V. INDUSTRIAL ACCIDENT COMM'N,
306 U.S. 493; KLAXON CO. V. STENTOR ELEC.  MFG.  CO., 313 U.S. 487;
GRIFFIN V. MCCOACH, 313 U.S. 498; PINK V. A.A.A. HIGHWAY EXPRESS, INC.,
314 U.S. 201; STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. V. DUEL, 324
U.S. 154; CARDILLO V. LIBERTY MUT. INS. CO., 330 U.S. 469; ORDER OF
UNITED COMMERCIAL TRAVELERS V. WOLFE, 331 U.S. 586. 

THESE CASES HAVE ARISEN IN THREE PRINCIPAL FIELDS:  (A) COMMERCIAL
LAW; (B) INSURANCE; AND (C) WORKMEN'S COMPENSATION.  AS A STATISTICAL
MATTER, IN 21 CASES OF DIRECT CONFLICT THE COURT HELD FOR THE FORUM 10
TIMES AND FOR THE SISTER STATE 11 TIMES. 

(A)  IN COMMERCIAL LAW A NUMBER OF CASES HAVE INVOLVED STATUTORY
ASSESSMENT AGAINST OUT-OF-STATE SHAREHOLDERS UNDER THE LAWS OF THE
STATE OF INCORPORATION OF AN INSOLVENT CORPORATION.  THE COURT'S
CONSISTENT POSITION HAS BEEN THAT THE LAW OF THE INCORPORATING STATE
MUST BE GIVEN EFFECT BY THE FORUM.  E.G., CONVERSE V. HAMILTON, SUPRA.
THAT LAW IS DEEMED TO CREATE A TRANSITORY CAUSE OF ACTION BASED ON THE
CONTRACTUAL RELATION BETWEEN THE CORPORATION AND THE SHAREHOLDER BY
WHICH THE SHAREHOLDER IS HELD TO HAVE CONSENTED TO REASONABLE STATE
REGULATION.  THE COURT HAS RELIED ON THE FACT THAT IN EACH CASE A
JUDICIAL PROCEEDING IN THE INCORPORATING STATE HAD PREVIOUSLY PASSED
UPON THE NECESSITY AND AMOUNT OF THE ASSESSMENT, AND THAT, ALTHOUGH
SHAREHOLDERS IN THE FORUM WERE NOT PARTIES TO SUCH A PROCEEDING, THEIR
INTEREST WAS ADEQUATELY REPRESENTED BY OTHER SHAREHOLDERS.  PERSONAL
DEFENSES, SUCH AS THE NONEXISTENCE OF THE SHAREHOLDER RELATION, MAY
STILL BE ASSERTED.  CF. PINK V. A.A.A. HIGHWAY EXPRESS, INC., 314 U.S.,
AT 208. 

WHEN THE COMMERCIAL CONTEXT IS NOT THAT OF SHAREHOLDER-CORPORATION
BUT SIMPLE CONTRACT, THE COURT HAS FOUND LESS NEED FOR UNIFORMITY AND
ACCORDINGLY HAS GIVEN GREATER LEEWAY TO THE FORUM ON A SHOWING OF
SUBSTANTIAL INTEREST IN THE CONTRACT, E.G., THAT ONE OF THE PARTIES IS
A RESIDENT OF THE FORUM OR THAT THE CONTRACT IS TO BE PERFORMED WITHIN
ITS BORDERS.  THE COURT HAS SPOKEN OF THE PRESUMED ACCEPTANCE OF THE
FORUM'S LAWS BY A CORPORATION DOING BUSINESS IN THE FORUM.  NATIONAL
MUTUAL BUILDING & LOAN ASSOCIATION V. BRAHAN, SUPRA.  IN OTHER CASES
THE ARGUMENT HAS BEEN NARROWER, FOR INSTANCE THAT THE FORUM CAN CONTROL
AN INCIDENTAL ITEM OF DAMAGES SUCH AS INTEREST.  KLAXON CO. V. STENTOR
ELEC.  MFG.  CO., SUPRA.  OCCASIONALLY RELIANCE HAS RESTED ON ORDINARY
CONFLICT OF LAWS DOCTRINE.  SEE OLMSTED V. OLMSTED, SUPRA (HOLDING THAT
THE FORUM CAN EXCLUSIVELY CONTROL DISPOSITION OF LAND WITHIN ITS
BORDERS). 

(B)  THE INSURANCE CASES REFLECT CONSIDERATIONS SIMILAR TO THOSE IN
THE COMMERCIAL CASES.  THE COURT HAS FOUND IN FRATERNAL BENEFIT
SOCIETIES AN "INDIVISIBLE UNITY" AMONG THE MEMBERS AND A RESULTANT NEED
FOR UNIFORM CONSTRUCTION OF RIGHTS AND DUTIES IN THE COMMOND FUND. 
E.G., ORDER OF UNITED COMMERCIAL TRAVELERS V. WOLFE, SUPRA.  HENCE THE
LAW OF THE SOCIETY'S HOME STATE (AND BYLAWS ADOPTED UNDER IT) HAS
PREVAILED.  THE COURT HAS BEEN ABLE TO DRAW SUPPORT FROM DECISIONS OF
THE HOME STATE VALIDATING EITHER THE PRACTICE UNDER QUESTION OR ONE
SIMILAR TO IT.  (THE CASE HAVE INVOLVED INCREASE OF DUES, PRESUMPTION
OF DEATH FROM LONG ABSENCE, ULTRA VIRES CERTIFICATES, AND TIME
LIMITATION ON BRINGING SUIT.)  IN AN ANALOGOUS SITUATION, THE FORUM HAS
PREVAILED ON THE QUESTION WHETHER AN INDIVIDUAL IS IN FACT AN
ASSESSABLE MEMBER OF A MUTUAL INSURANCE COMPANY (RATHER THAN A MERE
POLICYHOLDER), ON THE GROUND THAT THE INTERPRETATION AND LEGAL EFFECT
OF THE CONTRACT IS PECULIARLY WITHIN THE COMPETENCE AND SPHERE OF
INTEREST OF THE FORUM.  PINK V. A.A.A.  HIGHWAY EXPRESS, INC., SUPRA. 

AS TO ORDINARY INSURANCE CONTRACTS, THE FORUM HAS HAD A MUCH WIDER
SCOPE.  THE COURT HAS BALANCED THE INTERESTS OF THE COMPETING
JURISDICTIONS, INCLUDING FACTORS SUCH AS THE RESIDENCE OF THE INSURED,
WHERE PREMIUMS WERE PAID OR PAYABLE, WHERE THE POLICY WAS APPLIED FOR
AN DELIVERED, WHERE THE INSURED DIED, WHAT LAW THE POLICY ITSELF
PROVIDED SHOULD GOVERN, AND WHETHER LOAN AGREEMENTS AND NEW POLICIES
WERE ANCILLARY TO THE INITIAL POLICY.  THE FORUM HAS BEEN PERMITTED TO
PROTECT ITS RESIDENTS AGAINST INSURANCE COMPANIES, BUT THE COURT HAS
REQUIRED THE FORUM TO HAVE MORE THAN A CASUAL INTEREST.  IT HAS NOT
BEEN SUFFICIENT, FOR EXAMPLE, THAT THE FORUM WAS THE STATE OF INITIAL
ISSUE OF THE POLICY ON WHICH A DEFAULTED LOAN WAS OBTAINED, NEW YORK
LIFE INSURANCE CO. V. HEAD, SUPRA, OR THE PLACE OF ISSUE OF A CONVERTED
POLICY AND THE RESIDENCE AT DEATH OF THE INSURED, AETNA LIFE INSURANCE
CO. V. DUNKEN, SUPRA, OR THE PLACE WHERE SUIT HAS BEEN BROUGHT, JOHN
HANCOCK MUTUAL LIFE INSURANCE CO. V. YATES, SUPRA.  ON THE OTHER HAND,
THE FORUM WOULD SUCCEED IF IT ASSERTED A STRONG LOCAL POLICY REQUIRING
AN INSURABLE INTEREST, SEE GRIFFIN V. MCCOACH, SUPRA, OR A RESERVE
REQUIREMENT MORE STRINGENT THAN THAT OF THE STATE OF INCORPORATION,
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. V. DUEL, SUPRA. 

(C) IN WORKMEN'S COMPENSATION CASES THE COURT HAS LIKEWISE ADOPTED AN
INTERESTS-WEIGHING APPROACH.  THE RELEVANT CONSIDERATIONS HAVE BEEN:
THE PLACE OF THE EMPLOYMENT CONTRACT; THE RESIDENCE OF THE PARTIES; THE
PLACE OF INJURY; THE POSSIBILITY OF THE WORKMAN BECOMING A PUBLIC
CHARGE IN THE STATE SEEKING TO AWARD COMPENSATION, SEE ALASKA PACKERS
ASSOCIATION V. INDUSTRIAL ACCIDENT COMM'N, SUPRA; THE INTEREST OF A
STATE IN SECURING PROMPT PAYMENT OF MEDICAL FEES TO ITS RESIDENTS, SEE
PACIFIC EMPLOYERS INSURANCE CO. V. INDUSTRIAL ACCIDENT COMM'N, SUPRA;
THE ASPECT OF EXCLUSIVENESS OF THE FOREIGN STATUTE, SEE INDUSTRIAL
COMMISSION V. MCCARTIN, SUPRA; THE STATE'S INTEREST IN THE BODILY
SAFETY AND ECONOMIC PROTECTION OF WORKERS WITHIN IT; THE DIFFERENCE
BETWEEN A DEFENSE (WHICH IF REJECTED RESULTS IN IRREMEDIABLE LIABILITY)
AND A CAUSE OF ACTION (WHICH IF NOT ALLOWED IN ONE STATE CAN BE PURSUED
IN ANOTHER), SEE BRADFORD ELECTRIC LIGHT CO. V. CLAPPER, SUPRA; THE
AMOUNT OF WORK TO BE PERFORMED IN A STATE, SEE CARDILLO V. LIBERTY MUT.
INS. CO., SUPRA; AND THE POLICY OF DETERMINATE LIABILITY AND PROMPT
REMEDY UNDERLYING WORKMEN'S COMPENSATION ACTS.  THE COURT FIRST
ENUNCIATED THE RULE THAT THE FORUM MUST PERMIT A DEFENSE BASED ON THE
EXCLUSIVENESS OF THE SISTER-STATE STATUTE WHERE THE ONLY CONTACT OF THE
FORUM WAS THAT IT WAS THE PLACE OF INJURY.  BRADFORD ELECTRIC LIGHT CO.
V. CLAPPER, SUPRA.  CONVERSELY, THE COURT HELD THAT THE PLACE OF
CONTRACT COULD AWARD COMPENSATION THOUGH THE INJURY OCCURRED
ELSEWHERE.  ALASKA PACKERS ASSOCIATION V. INDUSTRIAL ACCIDENT COMM'N,
SUPRA.  SUBSEQUENTLY, THE COURT HELD THAT THE FORUM COULD PREVAIL, EVEN
THOUGH THE PARTIES RESIDED AND THE CONTRACT WAS ENTERED IN ANOTHER
STATE WHOSE STATUTE WAS EXCLUSIVE, IF THE INJURY OCCURRED IN THE FORUM
AND ENFORCEMENT OF THE DEFENSE OF THE OUTSIDE STATUTE WAS DEEMED
"OBNOXIOUS" TO THE FORUM'S POLICY.  PACIFIC EMPLOYERS INSURANCE CO. V.
INDUSTRIAL ACCIDENT COMM'N, SUPRA. 

IN APPLYING TO THE IMMEDIATE SITUATION THE FAIR GUIDANCE OFFERED BY
THE PAST DECISIONS OF THE COURT REGARDING FULL FAITH AND CREDIT, A
NUMBER OF CONSIDERATIONS BECOME APPARANT:  (FN2)  (1) UNLIKE THE OTHER
WORKMEN'S COMPENSATION CASES - OR, FOR THAT MATTER, ANY OF THE CASES IN
WHICH THE FORUM HAS PREVAILED IN A CONFLICT BETWEEN THE FORUM AND THE
OUTSIDE LAW - THE INTEREST OF THE FORUM HERE IS SOLELY DEPENDENT ON THE
OCCURRENCE OF THE INJURY WITHIN ITS BORDERS.  NO RIGHTS OF ARKANSAS
RESIDENTS ARE INVOLVED, SINCE NONE OF THE PARTIES IS AN ARKANSAN; THE
WORKMAN WAS REMOVED IMMEDIATELY TO A MISSOURI HOSPITAL AND HAS, SO FAR
AS APPEARS, REMAINED IN MISSOURI.  WHAT MIGHT BE REGARDED AS THE
SOCIETAL INTEREST OF ARKANSAS IN THE PROTECTION OF THE BODILY SAFETY OF
WORKERS WITHIN ITS BORDERS IS AN INTEREST EQUALLY TRUE OF ANY
JURISDICTION WHERE A WORKMAN IS INJURED AND EXACTLY THE SORT OF
INTEREST WHICH NEW HAMPSHIRE HAD IN CLAPPER.  (2) THUS, THE COURT IS
SQUARELY FACED WITH THE CLAPPER PROBLEM.  (FN3)  TO MAKE THE INTEREST
OF ARKANSAS PREVAIL OVER THE INTEREST OF MISSOURI ON THE BASIS OF THE
FULL FAITH AND CREDIT CLAUSE WOULD REQUIRE THAT CLAPPER BE EXPLICITLY
OVERRULED AND THAT, IN THE AREA OF WORKMEN'S COMPENSATION LAW, THE
PLACE OF INJURY BE DECISIVE.  AND IF CLAPPER IS TO BE OVERRULED, ON
WHICH I AND THOSE WHO JOIN ME EXPRESS NO OPINION, IT SHOULD BE DONE
WITH REASONS MAKING MANIFEST WHY MR. JUSTICE BRANDEIS' LONG-MATURED,
WEIGHTY OPINION IN THAT CASE WAS ILL-FOUNDED.  IT SHOULD NOT BE CAST
ASIDE ON THE PRESUPPOSITION THAT FULL FAITH AND CREDIT NEED NOT BE
GIVEN TO A SISTER-STATE WORKMEN'S COMPENSATION STATUTE IF THE LAW OF
THE FORUM HAPPENS TO BE MORE FAVORABLE TO THE CLAIMANT.  (3)
FURTHERMORE, THE NEW PROVISION OF 28 U.S.C. SEC. 1738 CANNOT BE
DISREGARDED.  IN 1948 CONGRESS FOR THE FIRST TIME DEALT WITH THE FULL
FAITH AND CREDIT EFFECT TO BE GIVEN STATUTES.  (FN4)  THE ABSENCE OF
SUCH A PROVISION WAS USED BY MR.  JUSTICE STONE TO BUTTRESS THE COURT'S
OPINIONS BOTH IN ALASKA PACKERS, 294 U.S., AT 547, AND PACIFIC
EMPLOYERS, 306 U.S., AT 502.  HENCE, IF SEC. 1738 HAS ANY EFFECT, IT
WOULD SEEM TO TEND TOWARD RESPECTING MISSOURI'S LEGISLATION.  SEE
REESE, FULL FAITH AND CREDIT TO STATUTES:  THE DEFENSE OF PUBLIC
POLICY, 19 U. OF CHI.  L. REV. 339, 343 ET SEQ. 

THERE IS, HOWEVER, A READILY AVAILABLE ALTERNATIVE SHORT OF
OVERRULING CLAPPER WHICH DISPENSES WITH THE DIFFICULTIES INHERENT IN
APPLYING THE FULL FAITH AND CREDIT CLAUSE.  THIS ALTERNATIVE PROCEEDS
ALONG THE FOLLOWING LINES: 

MISSOURI'S WORKMEN'S COMPENSATION STATUTE IS IN TERMS APPLICABLE AND
EXCLUSIVE AS TO WORKMEN INJURED OUTSIDE THE STATE UNDER MISSOURI
EMPLOYMENT CONTRACTS.  (FN5)  HOGAN (THE SUBCONTRACTOR HERE) WAS A
MISSOURI EMPLOYER AND HAD A MISSOURI EMPLOYMENT CONTRACT WITH CARROLL
(THE INJURED WORKMAN).  THUS WHEN CARROLL SOUGHT WORKMEN'S COMPENSATION
IN ARKANSAS (WHERE HE WAS HURT), HOGAN AND HIS INSURER COULD HAVE
RELIED ON THE MISSOURI STATUTE AND THE CLAPPER CASE AS A DEFENSE.  THEY
DID NOT, PRESUMABLY SINCE ARKANSAS WORKMEN'S COMPENSATION COST THEM NO
MORE THAN MISSOURI'S AND THEY HAD AN OPPORTUNITY TO RECOUP FROM THE
PRIME CONTRACTOR AS A THIRD PARTY UNDER ARKANSAS LAW.  (FN6) 

BUT LANZA (THE PRIME CONTRACTOR) WAS NOT A MISSOURI EMPLOYER, NOR
DOES THE RECORD DISCLOSE THAT HE HAD A MISSOURI EMPLOYMENT CONTRACT
EITHER WITH HOGAN OR CARROLL.  THE BASIC CONTRACT BETWEEN LANZA AND
HOGAN WAS ON A LOUISIANA LETTERHEAD AND IS A CONTRACT FOR WORK
APPARENTLY TO BE PERFORMED EXCLUSIVELY IN ARKANSAS.  HOGAN PROMISED TO
FURNISH WORKMEN AND "IT IS FURTHER UNDERSTOOD THAT  ... HOGAN  ...
WILL CARRY THE NECESSARY INSURANCE ON HIS MEN IN ACCORD WITH THE RULES
OF THE STATE OF ARKANSAS."  THE SUPPLEMENTAL CONTRACT FOR THE
PARTICULAR WORK ON WHICH CARROLL WAS INJURED CONSISTED OF A LETTER BID
BY HOGAN TO LANZA AND A LETTER REPLY AUTHORIZING HOGAN TO PROCEED. 
FROM THE POINT OF VIEW OF CHOICE OF LAW, THE VARIOUS ASPECTS OF THE
CONTRACT COMBINE TO MAKE IT GOVERNED EITHER BY ARKANSAS OR LOUISIANA -
BUT NOT MISSOURI - LAW.  CF. JOHNSON V. GREAT LAKES PIPE LINE CO., 358
MO. 445, 215 S.W.2D 460. 

THE MISSOURI WORKMEN'S COMPENSATION STATUTE PROVIDES THAT "WHERE A
THIRD PERSON IS LIABLE TO THE EMPLOYEE  ...  FOR THE INJURY OR DEATH,
THE EMPLOYER SHALL BE SUBROGATED  ...  AND THE RECOVERY BY SUCH
EMPLOYER SHALL NOT BE LIMITED TO THE AMOUNT PAYABLE AS COMPENSATION TO
SUCH EMPLOYEE  ...  ."  MO. REV. STAT., 1949, SEC. 287.150.  THE
MISSOURI SUPREME COURT HAS READ THIS PROVISION AS ALLOWING A COMMON-LAW
ACTION BY A WORKER AGAINST A NEGLIGENT THIRD PARTY, E.G., SCHUMACHER V.
LESLIE, 360 MO. 1238, 232 S.W.2D 913, ON THE THEORY THAT THE WORKER MAY
SECURE COMMON-LAW RECOVERY AGAINST ANYONE " 'UPON WHOM NO LIABILITY
COULD BE ENTAILED UNDER THE ACT,'" 360 MO., AT 1246, 232 S.W.2D, AT
918. 

BUT THE MISSOURI SUPREME COURT HAS HELD THAT A PRIME CONTRACTOR IS
NOT LIABLE AS A THIRD PARTY FOR HIS NEGLIGENCE TO AN EMPLOYEE OF A
SUBCONTRACTOR.  BUNNER V. PATTI, 343 MO. 274, 121 S.W.2D 153; SEE ALSO
NEW AMSTERDAM CASUALTY CO. V. BOAZ-KIEL CONSTRUCTION CO., 115 F.2D 950
(C.A. 8TH CIR.).  AND THIS BECAUSE PRIME CONTRACTORS ARE SUBJECT TO
LIABILITY UNDER THE WORKMEN'S COMPENSATION STATUTE, WHICH STATES:  "ANY
PERSON WHO HAS WORK DONE UNDER CONTRACT ON OR ABOUT HIS PREMISES WHICH
IS AN OPERATION OF THE USUAL BUSINESS WHICH HE THERE CARRIES ON SHALL
BE DEEMED AN EMPLOYER AND SHALL BE LIABLE UNDER THIS CHAPTER TO SUCH
CONTRACTOR, HIS SUBCONTRACTORS, AND THEIR EMPLOYEES, WHEN INJURED OR
KILLED ON OR ABOUT THE PREMISES OF THE EMPLOYER  ...  .  THE IMMEDIATE
CONTRACTOR  ...  SHALL BE LIABLE AS AN EMPLOYER OF THE EMPLOYEES OF HIS
SUBCONTRACTORS  ...  .  NO SUCH EMPLOYER SHALL BE LIABLE  ...  IF THE
EMPLOYEE WAS INSURED BY HIS IMMEDIATE OR ANY INTERMEDIATE EMPLOYER." 
MO. REV. STAT., 1949, SEC. 287.040. 

THE RATIONALE OF THE MISSOURI DECISIONS PROHIBITING A NEGLIGENCE
ACTION AGAINST A PRIME CONTRACTOR IS THIS:  A PERSON CLEARLY SUBJECT TO
STATUTORY LIABILITY CANNOT BE SUED AS A THIRD PARTY.  CF. SCHUMACHER V.
LESLIE, 360 MO. 1238, 1247, 232 S.W.2D 913, 918.  BUT THE MISSOURI RULE
HAS ONLY BEEN APPLIED IN CASES WHERE THREE PRECONDITIONS WERE PRESENT:
(A) ALL PARTIES WERE SUBJECT TO THE MISSOURI WORKMEN'S COMPENSATION
ACT; (B) THE PRIME AND SUBCONTRACTOR WERE DOING BUSINESS IN MISSOURI;
AND (C) THE INJURY TOOK PLACE ON A PROJECT IN MISSOURI.    UNDER THE
CIRCUMSTANCES OF THE CASE BEFORE US, THERE IS NO BASIS FOR FINDING THAT
MISSOURI WOULD DEEM LANZA TO BE A MISSOURI EMPLOYER AND AS SUCH SUBJECT
TO LIABILITY FOR MISSOURI WORKMEN'S COMPENSATION.  HIS CONTRACT HAD NO
MISSOURI TIES OTHER THAN THE BARE FACT THAT THE SUBCONTRACTOR WAS A
MISSOURI RESIDENT.  (FN7)  AND THERE IS NO INDICATION THAT LANZA HAS
EVER DONE BUSINESS IN MISSOURI.  FURTHERMORE, MISSOURI REQUIRES THAT A
DEFENDANT IN A NEGLIGENCE SUIT WHO RELIES ON THE EXCLUSIVENESS OF THE
WORKMEN'S COMPENSATION STATUTE MUST PLEAD AND PROVE AS AN AFFIRMATIVE
DEFENSE THAT THE PARTIES ARE SUBJECT TO IT, KEMPER V. GLUCK, 327 MO.
733, 39 S.W.2D 330, A BURDEN WHICH LANZA CERTAINLY HAS NOT MET.  SEE
STATE EX REL. ST. LOUIS CAR CO. V. HOSTETTER, 345 MO. 102, 131 S.W.2D
558.  THUS THERE IS NO WARRANT FOR BELIEVING THAT THE MISSOURI COURTS
WOULD REFUSE TO ALLOW SUIT AGAINST HIM AS AN ORDINARY THIRD PARTY. 
PRESUMABLY, THEN, CARROLL COULD SUE LANZA UNDER EITHER MISSOURI OR
ARKANSAS LAW FOR HIS NEGLIGENCE.  ACCORDINGLY, THE CONSTITUTIONAL
QUESTION PRESENTED SHOULD NOT BE PASSED ON. 

BUT WE OUGHT NOT TO REST ON THE INITIAL DETERMINATION OF MISSOURI LAW
HERE.  IN A NUMBER OF THE FULL FAITH AND CREDIT CASES THIS COURT HAS
REMANDED FOR FURTHER CONSIDERATION OF STATE LAW.  E.G., KLAXON CO. V.
STENTOR ELEC.  MFG.  CO., SUPRA; GRIFFIN V. MCCOACH, SUPRA; CLARK V.
WILLIARD, SUPRA. HENCE, I WOULD REMAND THIS CASE TO THE COURT OF
APPEALS WITH INSTRUCTIONS TO DETERMINE WHETHER OUR READING OF MISSOURI
LAW IS WRONG. 

FN1  TWO OTHER GROUPS OF CASES DO NOT HERE CONCERN US:  THOSE HOLDING
THAT A FULL FAITH AND CREDIT CONTENTION MUST BE PROPERLY RAISED IN THE
LOWER COURTS, SEE CHICAGO & ALTON RAILROAD V. WIGGINS FERRY CO., 119
U.S. 615, AND THOSE HOLDING THAT A MERE MISCONSTRUCTION BY THE FORUM OF
THE LAWS OF A SISTER STATE IS NOT A VIOLATION OF THE FULL FAITH AND
CREDIT CLAUSE, SEE, E.G., PENNSYLVANIA FIRE INSURANCE CO. V. GOLD ISSUE
MINING & MILLING CO., 243 U.S. 93. 

FN2  STATED SHORTLY, THE FACTS OF THIS CASE ARE:  CARROLL, A
MISSOURIAN, ENTERED INTO A MISSOURI EMPLOYMENT CONTRACT WITH HOGAN, WHO
OPERATED A MISSOURI PAINTING COMPANY.  HOGAN IN TURN CONTRACTED WITH
LANZA, A LOUISIANA ELECTRICAL CONTRACTOR, TO DO PAINTING ON A FEDERAL
PROJECT IN ARKANSAS FOR WHICH LANZA HAD A GOVERNMENT CONTRACT.  WHILE
ON THE JOB IN ARKANSAS, CARROLL WAS INJURED.  HOGAN'S INSURER
VOLUNTARILY BEGAN TO PAY WORKMEN'S COMPENSATION TO CARROLL PURSUANT TO
MISSOURI LAW, THOUGH NO FORMAL PROCEEDINGS OR AWARD WERE HAD. 
THEREAFTER, CARROLL BROUGHT SUIT AGAINST LANZA IN AN ARKANSAS STATE
COURT, ALLEGING THAT HIS INJURY WAS CAUSED BY THE NEGLIGENCE OF LANZA'S
EMPLOYEES.  SINCE THERE WAS DIVERSITY OF CITIZENSHIP, LANZA REMOVED THE
CASE TO FEDERAL COURT.  HE THEN MOVED FOR SUMMARY JUDGMENT, CLAIMING
THAT THE MISSOURI WORKMEN'S COMPENSATION LAW, TO WHICH CARROLL WAS
SUBJECT, AFFORDED AN EXCLUSIVE REMEDY.  THE COURT REJECTED THIS
CONTENTION AND RENDERED AN $18,000 JUDGMENT FOR CARROLL.  116 F. SUPP.
491.  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT, RELYING ON MAGNOLIA
PETROLEUM CO. V. HUNT, 320 U.S. 430, REVERSED ON THE GROUND THAT FULL
FAITH AND CREDIT REQUIRED ARKANSAS TO GIVE EFFECT TO WHAT THE COURT
TREATED AS A FINAL AND EXCLUSIVE AWARD IN THE PAYMENTS RECEIVED UNDER
THE MISSOURI STATUTE.  216 F.2D 808. 

THIS DISSENT AGREES WITH THE COURT THAT THE COURT OF APPEALS
MISAPPLIED MAGNOLIA TO THE FACTS OF THIS CASE. 

FN3  CONCEDEDLY THE PACIFIC EMPLOYERS CASE NARROWED WHAT WAS SAID IN
CLAPPER.  THE COURT THERE FOUND THE CONJUNCTION OF FOUR FACTORS
DECISIVE IN UPHOLDING THE CALIFORNIA SUPREME COURT'S DETERMINATION THAT
THE MASSACHUSETTS STATUTE WAS "OBNOXIOUS" TO THE PUBLIC POLICY OF
CALIFORNIA: (1) MEDICAL SERVICES WERE RENDERED IN CALIFORNIA AND
DIRECTLY REIMBURSABLE FROM THE CALIFORNIA AWARD; IF CALIFORNIA COULD
NOT MAKE AN AWARD, ITS RESIDENTS WOULD BE REMITTED TO MASSACHUSETTS AND
MASSACHUSETTS REMEDIES TO RECOVER FOR THEIR SERVICES; (2) BODILY SAFETY
AND ECONOMIC PROTECTION OF WORKERS WITHIN ITS BOUNDARIES IS A RELEVANT
INTEREST OF THE FORUM; (3) THE CALIFORNIA STATUTE PROVIDED:  "NO
CONTRACT, RULE, OR REGULATION SHALL EXEMPT THE EMPLOYER FROM LIABILITY
...  ."; (4) CONGRESS HAD NOT YET PASSED LEGISLATION PRESCRIBING THE
FULL FAITH AND CREDIT EFFECT TO BE GIVEN TO STATUTES. 

THE DISTINCTIONS BETWEEN THAT CASE AND THE ONE NOW AT BAR ARE TO BE
NOTED.  OF COURSE WE ARE NOT DECIDING THIS CASE AN AN ISOLATED
INSTANCE.  BUT WE ARE PASSING ON THE ELEMENTS OF THIS SITUATION AND NOT
OF SOME OTHER SITUATION.  THE DECISION HERE WILL GOVERN OTHER CASES OF
THE SAME TYPE.  THE CIRCUMSTANCES OF THIS CASE DEFINE THE CONTENT OF
THE TYPE.  THAT IS THE ESSENCE OF THE THEORY OF BALANCING THE SOCIETAL
INTEREST OF THE FORUM STATE AGAINST THOSE OF A SISTER STATE.  IT IS
THAT WHICH LIES BEHIND THE STATEMENT THAT "THE FULL FAITH AND CREDIT
CLAUSE IS NOT AN INEXORABLE AND UNQUALIFIED COMMAND," PINK V. A.A.A.
HIGHWAY EXPRESS, INC., 314 U.S. 201.  210.  BUT THIS DOES NOT MEAN THAT
IT IS NO COMMAND - THAT EACH STATE IS AT LARGE TO APPLY ITS OWN LAWS IN
DISREGARD OF GREATER INTERESTS OF A SISTER STATE. 

FN4  THE FIRST TWO PARAGRAPHS OF THE SECTION DEAL WITH THE PROBLEM OF
AUTHENTICATION.  THE THIRD PARAGRAPH PROVIDES:  "SUCH ACTS, RECORDS AND
JUDICIAL PROCEEDINGS  ...  SHALL HAVE THE SAME FULL FAITH AND CREDIT IN
EVERY COURT WITHIN THE UNITED STATES  ...  AS THEY HAVE BY LAW OR USAGE
IN THE COURTS OF SUCH STATE  ...  FROM WHICH THEY ARE TAKEN." 

PRIOR TO 1948 THE QUOTED SENTENCE DID NOT INCLUDE "SUCH ACTS." 
INSTEAD, IT BEGAN: "AND THE SAID RECORDS AND JUDICIAL PROCEEDINGS,"
ETC. 

FN5  "EVERY EMPLOYER AND EVERY EMPLOYEE, EXCEPT AS IN THIS CHAPTER
OTHERWISE PROVIDED, SHALL BE CONCLUSIVELY PRESUMED TO HAVE ELECTED TO
ACCEPT THE PROVISIONS OF THIS CHAPTER  ...  UNLESS PRIOR TO THE
ACCIDENT HE SHALL HAVE FILED WITH THE COMMISSION A WRITTEN NOTICE THAT
HE ELECTS TO REJECT THIS CHAPTER."  MO. LAWS 1953, P. 535, SEC. 1. 

"THIS CHAPTER SHALL APPLY TO  ...  ALL INJURIES RECEIVED OUTSIDE OF
THIS STATE UNDER CONTRACT OF EMPLOYMENT MADE IN THIS STATE, UNLESS THE
CONTRACT OF EMPLOYMENT IN ANY CASE SHALL OTHERWISE PROVIDE."  MO. REV.
STAT., 1949, SEC. 287.110. 

THE RIGHTS AND REMEDIES HEREIN GRANTED TO AN EMPLOYEE, SHALL EXCLUDE
ALL OTHER RIGHTS AND REMEDIES OF SUCH EMPLOYEE  ...  AT COMMON LAW OR
OTHERWISE, ON ACCOUNT OF SUCH ACCIDENTAL INJURY OR DEATH, EXCEPT SUCH
RIGHTS AND REMEDIES AS ARE NOT PROVIDED FOR BY THIS CHAPTER."  MO. REV.
STAT., 1949, SEC. 287.120. 

FN6  HOGAN WAS COVERED BY HIS INSURER BOTH IN MISSOURI AND ARKANSAS. 
THE INSURER INITIALLY PAID CARROLL $30 A WEEK, THE MAXIMUM UNDER THE
MISSOURI WORKMAN'S COMPENSATION LAW.  WHEN CARROLL SOUGHT TO TRANSFER
TO ARKANSAS COMPENSATION, THE INSURER BEGAN TO PAY HIM $25 A WEEK, THE
MAXIMUM UNDER THE ARKANSAS STATUTE.  ARKANSAS LAW ALLOWS AN INJURED
WORKMAN TO SUE A PRIME CONTRACTOR FOR NEGLIGENCE, SEE BALDWIN CO. V.
MANER, - ARK. - , 273 S.W.2D 28; ANDERSON V. SANDERSON & PORTER, 146
F.2D 58 (C.A. 8TH CIR.), AND HIS IMMEDIATE EMPLOYER AND THE INSURER OF
HIS IMMEDIATE EMPLOYER HAVE A STATUTORY LIEN ON TWO-THIRDS OF ANY
RECOVERY, ARK. STAT. ANN., SEC. 81-1340. 

FN7  NOR IS THERE ANY HINT THAT LANZA WAS ATTEMPTING TO EVADE
STATUTORY RESPONSIBILITY TO CARROLL BY SETTING UP A FINANCIALLY
IRRESPONSIBLE SUBCONTRACTOR, AN EVASION WHICH HAS BEEN CALLED THE
"PRIME PURPOSE" OF THE STATUTORY PROVISION AS TO PRIME CONTRACTORS. 
WORS V. TARLTON, 234 MO. APP. 1173, 1186, 95 S.W.2D 1199, 1205-1206,
WRIT OF CERTIORARI QUASHED, 343 MO. 945, 124 S.W.2D 1072. 
..END :




MITCHELL V. C.W. VOLLMER & CO., INC. 349 U.S. 427 


NO. 387.  ARGUED MARCH 3, 1955 - DECIDED JUNE 6, 1955 - 214 F.2D 132,
REVERSED. 


EMPLOYEES ENGAGED IN THE CONSTRUCTION OF THE ALGIERS LOCK AND CANAL,
IN ORLEANS PARISH, LOUISIANA, WHICH WILL FORM PART OF THE GULF
INTRACOASTAL WATERWAY (EXTENDING FROM FLORIDA TO THE MEXICAN BORDER),
AND WHICH WAS DESIGNED AS AN ALTERNATE ROUTE TO AN INADEQUATE EXISTING
LOCK AND CANAL, ARE "ENGAGED IN COMMERCE" WITHIN THE MEANING OF SEC. 7
OF THE FAIR LABOR STANDARDS ACT; AND THE 40-HOUR WEEK AND OVERTIME
PROVISIONS OF THE ACT ARE APPLICABLE TO THEM.  PP. 428-430. 

(A)  RAYMOND V. CHICAGO, M.& ST. P.R. CO., 243 U.S. 43,
DISTINGUISHED.  PP. 429-430. 

(B)  WHETHER AN EMPLOYEE IS "ENGAGED IN COMMERCE" WITHIN THE MEANING
OF SEC. 7 OF THE FAIR LABOR STANDARDS ACT IS DETERMINED BY PRACTICAL
CONSIDERATIONS, NOT BY TECHNICAL CONCEPTIONS.  P. 429. 

(C)  THE TEST OF WHETHER AN EMPLOYEE IS "ENGAGED IN COMMERCE" WITHIN
THE MEANING OF THE ACT IS WHETHER THE WORK IS SO DIRECTLY AND VITALLY
RELATED TO THE FUNCTIONING OF AN INSTRUMENTALITY OR FACILITY OF
INTERSTATE COMMERCE AS TO BE, IN PRACTICAL EFFECT, A PART OF IT, RATHER
THAN ISOLATED, LOCAL ACTIVITY.  P. 429. 

(D)  THE WORK OF IMPROVING EXISTING FACILITIES OF INTERSTATE
COMMERCE, INVOLVED HERE, IS ACTIVITY "IN COMMERCE" WITHIN THE MEANING
OF THE ACT.  P. 430. 

MITCHELL, SECRETARY OF LABOR, V. C.W. VOLLMER & CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS SUIT UNDER SEC. 17 OF THE FAIR LABOR
STANDARDS ACT (52 STAT.  1060, AS AMENDED, 63 STAT. 910, 29 U.S.C. SEC.
201 ET SEQ.) TO ENJOIN RESPONDENT FROM VIOLATING SEC. 15(A)(2) AND SEC.
15(A)(5) OF THE ACT.  THOSE SECTIONS MAKE UNLAWFUL VIOLATION OF SEC. 7
AND SEC. 11(C) OF THE ACT.  SECTION 7 REQUIRES ONE AND A HALF TIMES THE
REGULAR RATE OF PAY FOR WORK IN EXCESS OF 40 HOURS A WEEK; AND SEC.
11(C) REQUIRES THE KEEPING OF THE RECORDS THAT ARE PRESCRIBED BY
REGULATIONS.   29 CFR, 1954 CUM. SUPP., SEC. 516.1 ET SEQ. THE
CONTENTION IS THAT RESPONDENT'S VIOLATIONS OF SEC. 7 AND SEC.  11(C)
RELATE TO WORK PERFORMED IN THE CONSTRUCTION OF AN EARTHWORK ENBANKMENT
AND CONCRETE PLATFORM FOR THE ALGIERS LOCK IN ORLEANS PARISH,
LOUISIANA, A UNIT IN THE GULF INTRACOASTAL WATERWAY, EXTENDING FROM
FLORIDA TO THE MEXICAN BORDER.  THE ALGIERS LOCK IS DESIGNED TO FURNISH
BETTER PASSAGE INTO AND ACROSS THE MISSISSIPPI THAN IS PROVIDED BY THE
PRESENT HARVEY LOCK AND CANAL. 

RESPONDENT CONCEDES THAT SOME OF ITS EMPLOYEES ON THE ALGIERS LOCK
WERE EMPLOYED FOR MORE THAN 40 HOURS PER WEEK WITHOUT PAYMENT FOR
OVERTIME.  ITS DEFENSE IS THAT ITS EMPLOYEES WORKING ON THE ALGIERS
LOCK WERE NOT ENGAGED IN INTERSTATE COMMERCE, AND THUS WERE NOT COVERED
BY THE ACT.  (FN1) 

THE EVIDENCE AT THE TRIAL WAS PRIMARILY DIRECTED TO THE QUESTION
WHETHER THOSE WORKING ON THE ALGIERS LOCK WERE ENGAGED IN COMMERCE
WITHIN THE MEANING OF SEC. 7 OF THE ACT.  AS ALREADY NOTED, THE ALGIERS
LOCK WILL FORM PART OF THE GULF INTRACOASTAL WATERWAY.  IT IS DESIGNED
TO SERVE AS AN ALTERNATE ROUTE TO THE HARVEY LOCK AND CANAL.  RELYING
ON OUR DECISION IN RAYMOND V. CHICAGO, M.& ST. P.R. CO., 243 U.S. 43,
THE DISTRICT COURT HELD THAT RESPONDENT'S EMPLOYEES WERE NOT ENGAGED IN
COMMERCE AND DENIED INJUNCTIVE RELIEF.  113 F. SUPP. 235.  THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT AFFIRMED PER CURIAM.  214F.2D 132.  TO
RESOLVE AN APPARENT CONFLICT WITH TOBIN V. PENNINGTON-WINTER CONST.
CO., 198 F.2D 334, WE GRANTED CERTIORARI.  348 U.S. 886. 

PROVISIONS APPLICABLE TO THE ALGIERS LOCK AND CANAL PROJECT IF THE
RESPONDENT'S EMPLOYEES AT WORK ON IT ARE "ENGAGED IN COMMERCE."  IT IS
ARGUED THAT THEY ARE NOT ENGAGED "IN COMMERCE," SINCE THE ALGIERS LOCK
IS NEW CONSTRUCTION AND THEREFORE IN THE CATEGORY OF THE NEW TUNNEL
THAT WAS BEING CONSTRUCTED IN RAYMOND V. CHICAGO, M.& ST. P.R. CO.,
SUPRA.  IN THE LATTER CASE, THE COURT HELD THAT AN EMPLOYEE AT WORK ON
A NEW TUNNEL FOR AN INTERSTATE CARRIER WAS NOT SUBJECT TO THE FEDERAL
EMPLOYERS' LIABILITY ACT, EVEN THOUGH THE TUNNEL, WHEN COMPLETED, WOULD
BE AN INTERSTATE FACILITY. 

WE DO NOT THINK THAT CASE SHOULD CONTROL THIS ONE.  WE ARE DEALING
WITH A DIFFERENT ACT OF ANOTHER VINTAGE - ONE THAT HAS BEEN GIVEN A
LIBERAL CONSTRUCTION FROM KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, TO
ALSTATE CONSTRUCTION CO. V. DURKIN, 345 U.S. 13.  THE QUESTION WHETHER
AN EMPLOYEE IS ENGAGED "IN COMMERCE" WITHIN THE MEANING OF THE PRESENT
ACT IS DETERMINED BY PRACTICAL CONSIDERATIONS, NOT BY TECHNICAL
CONCEPTIONS.  SEE WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564, 570;
OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125, 128, 130.  THE TEST IS
WHETHER THE WORK IS SO DIRECTLY AND VITALLY RELATED TO THE FUNCTIONING
OF AN INSTRUMENTALITY OR FACILITY OF INTERSTATE COMMERCE AS TO BE, IN
PRACTICAL EFFECT, A  PART OF IT, RATHER THAN ISOLATED, LOCAL ACTIVITY. 
SEE MCLEOD V. THRELKELD, 319 U.S. 491, 497.  REPAIR OF FACILITES OF
INTERSTATE COMMERCE IS ACTIVITY "IN COMMERCE" WITHIN THE MEANING OF THE
ACT, AS WE HELD IN FITZGERALD CO. V. PEDERSEN, 324 U.S. 720.  AND WE
THINK THE WORK OF IMPROVING EXISTING FACILITIES OF INTERSTATE COMMERCE,
INVOLVED IN THE PRESENT CASE, FALLS IN THE SAME CATEGORY.  (FN2) 

THE GULF INTRACOASTAL WATERWAY IS AN EXISTING INSTRUMENTALITY OF
COMMERCE.  WITHOUT ALGIERS LOCK, IT HAS PROVED INADEQUATE WHERE IT
CROSSES THE MISSISSIPPI.  HARVEY LOCK CANNOT HANDLE THE TRAFFIC.  USE
OF HARVEY LOCK ENTAILS TRAVEL THROUGH SOME FIVE MILES OF THE NEW
ORLEANS HARBOR, ALREADY HEAVY WITH TRAFFIC.  IT IS IMPRACTICAL TO WIDEN
HARVEY LOCK BECAUSE IT IS LOCATED IN A HIGHLY DEVELOPED INDUSTRIAL
ALTERNATIVE FOR RELIEVING THE CONGESTION OF THE WATERWAY AT THIS
POINT.  SEE S. DOC. NO. 188, 78TH CONG., 2D SESS., PP. 1-4.  THE WORK
ON ALGIERS LOCK SEEMS TO US TO HAVE AS INTIMATE A RELATION TO
IMPROVEMENT OF NAVIGATION ON THE WATERWAY AS THE DREDGING OF HARVEY
LOCK WOULD HAVE.  IT IS PART OF THE REDESIGNING OF AN EXISTING FACILITY
OF INTERSTATE COMMERCE.  THOSE WORKING ON THE ALGIERS LOCK ARE
THEREFORE "ENGAGED IN COMMERCE" WITHIN THE MEANING OF SEC. 7 OF THE
ACT.  REVERSED. 

FN1 THE ONLY QUESTION PRESENTED AND ARGUED HERE CONCERNS SEC. 7 OF
THE ACT. 

FN2  THE CONSTRUCTION WORK HELD IN MURPHEY V. REED, 335 U.S. 865, NOT
TO BE UNDER THE ACT WAS THE BUILDING OF A NAVY BASE, NOT THE
IMPROVEMENT OF A FACILITY OR INSTRUMENTALITY OF INTERSTATE COMMERCE. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
DISSENTING. 

ONLY INJUNCTIVE RELIEF IS SOUGHT HERE BY THE SECRETARY OF LABOR TO
PREVENT THE VIOLATION OF SECS. 7 AND 15(A)(2) AND SECS. 11(C) AND 15(A)
OF THE FAIR LABOR STANDARDS ACT, 29 U.S.C.  SEC. 201 ET SEQ., WHICH
REQUIRE THE PAYMENT OF EMPLOYERS OF EXTRA PAY FOR OVERTIME WORK AND THE
KEEPING OF RECORDS BY THEM.  29 U.S.C. SEC. 207(A) PROVIDES: 

"  ...  NO EMPLOYER SHALL EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED
IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE FOR A WORKWEEK
LONGER THAN FORTY HOURSE, UNLESS SUCH EMPLOYEE RECEIVES COMPENSATION
FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED AT A RATE NOT
LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE IS
EMPLOYED." 

IT IS CONTENDED THAT THE RESPONDENT AND ITS EMPLOYEES WHO WERE
CONSTRUCTING THIS CUTOFF CANAL WERE "ENGAGED IN COMMERCE."  IF THEY
WERE NOT SO ENGAGED, AN INJUNCTION WILL NOT LIE.  THIS PRESENTS A
QUESTION OF STATUTORY CONSTRUCTION IN LIGHT OF LEGISLATIVE,
ADMINISTRATIVE, AND JUDICIAL CONSIDERATIONS. 

THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SEC. 51 ET SEQ.,
PROVIDES THAT EVERY RAILWAY COMMON CARRIER WHILE ENGAGED IN INTERSTATE
COMMERCE SHALL BE LIABLE IN DAMAGES TO ANY EMPLOYEE ENGAGED IN SUCH
COMMERCE WHO SUFFERS INJURY RESULTING FROM THE NEGLIGENCE OF THE
CARRIER.  IF THE EMPLOYEE WAS NOT HIMSELF ENGAGED IN COMMERCE, THERE
CAN BE NO RECOVERY UNDER THE ACT. 

IN RAYMOND V. CHICAGO, M.& ST. P.R. CO., 243 U.S. 43, THE COMPANY WAS
ENGAGED IN THE OPERATION OF A RAILROAD BETWEEN CHICAGO AND SEATTLE. 
ITS EXISTING ROUTE WENT AROUND THE MOUNTAINS, AND THE RAILROAD SOUGHT
TO TUNNEL THROUGH THE MOUNTAINS.  WHILE CONSTRUCTING THIS TUNNEL,
RAYMOND WAS INJURED AND SUED THE RAILROAD UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, CLAIMING THE WAS ENGAGED IN COMMERCE WHEN INJURED BY THE
RAILROAD'S NEGLIGENCE.  THIS COURT HELD THAT RAYMOND WAS NOT ENGAGED IN
COMMERCE WHILE WORKING ON THE CONSTRUCTION OF THIS CUTOFF TUNNEL
BECAUSE ITS USE IN COMMERCE WAS ONLY CONTEMPLATED AFTER COMPLETION. 
THAT IS THE EXACT SITUATION HERE WITH REFERENCE TO THIS CANAL. 

IN NEW YORK CENTRAL R. CO. V. WHITE, 243 U.S. 188, A RAILROAD WAS
CONSTRUCTING A NEW STATION ALONGSIDE ITS INTERSTATE LINE.  WHITE WAS A
NIGHT WATCHMAN EMPLOYED AT THE SITE OF THIS NEW CONSTRUCTION AND WAS
KILLED.  HIS REPRESENTATIVE SUED UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, CLAIMING THAT HE WAS ENGAGED IN COMMERCE, BUT THIS COURT HELD THAT
HE WAS NOT ENGAGED IN COMMERCE AS HE WENT ABOUT HIS DUTIES AT THE SITE
OF THIS NEW CONSTRUCTION. 

IN THE INTERPRETATION AND APPLICATION OF THE FAIR LABOR STANDARDS
ACT, THE FEDERAL COURTS HAVE ADOPTED THE RULE OF THE RAYMOND AND WHITE
CASES, WHICH AROSE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  A
PREREQUISITE TO THE APPLICATION OF EITHER ACT WAS THAT THE EMPLOYEE BE
ENGAGED IN COMMERCE.  THIS RULE CAME TO BE KNOWN AS THE "NEW
CONSTRUCTION RULE" AND WAS APPLIED BY THIS COURT IN MURPHEY V. REED,
335 U.S. 865.  IT WAS ALSO APPLIED BY THE FIRST CIRCUIT IN NIEVES V.
STANDARD DREDGING CORP., 152 F.2D 719, WHERE THE EMPLOYER WAS DREDGING
A CHANNEL FOR NAVIGATION IN A PREVIOUSLY NONNAVIGABLE STREAM.  THE
SECOND CIRCUIT IN SCHOLL V. MCWILLIAMS DREDING CO., 169 F.2D 729,
APPLIED THE RULE WHERE THE EMPLOYER WAS ENGAGED IN THE CONSTRUCTION OF
A NEW AIR BASE IN GREENLAND THAT HAD NOT YET BEEN USED IN FOREIGN
COMMERCE.  THE THIRD CIRCUIT APPLIED THE RULE IN KELLY V. FORD, BACON &
DAVIS, INC., 162 F.2D 555, WHERE THE EMPLOYER WAS ENGAGED IN BUILDING A
NEW PLANT FOR THE CONSTRUCTION OF AIRCRAFT ENGINES LATER TO BE USED IN
COMMERCE, BUT WHICH PLANT WAS ONLY AN ADDITIONAL FACILITY FOR SUCH
WORK.  IT WAS HELD IN THIS CASE THAT THE EMPLOYER WAS NOT ONLY NOT
ENGAGED IN COMMERCE, BUT IT WAS NOT ENGAGED IN THE PRODUCTION OF GOODS
FOR COMMERCE.  THE FIFTH CIRCUIT, IN ANOTHER CASE BESIDE THE ONE UNDER
CONSIDERATION, APPLIED THE RULE OF NEW CONSTRUCTION TO THE BUILDING OF
AN EXPRESSWAY WHICH, WHEN COMPLETED, WOULD HAVE ROUTED OVER IT SEVERAL
INTERSTATE HIGHWAYS.  VAN KLAVEREN V. KILLIAN-HOUSE CO., 210 F.2D 510. 
THE SIXTH CIRCUIT IN KOEPFLE V. GARAVAGLIA, 200 F.2D 191, APPLIED THE
RULE TO ANOTHER CASE OF NEW CONSTRUCTION OF AN EXPRESSWAY TO BE LATER
INTEGRATED INTO A HIGHWAY SYSTEM.  THE EIGHTH CIRCUIT IN CRABB V.
WELDEN BROS., 164 F.2D 797, APPLIED THE RULE IN THE CONSTRUCTION OF THE
ALCAN HIGHWAY.  THE TENTH CIRCUIT IN MOSS V. GILLIOZ CONST. CO., 206
F.2D 819, SIMILARLY APPLIED THE RULE IN THE CONSTRUCTION OF A NEW
BRIDGE AT 51ST STREET, SOUTH OF TULSA, OKLAHOMA, OVER WHICH INTERSTATE
TRAFFIC THEN USING THE 11TH STREET BRIDGE COULD BE ROUTED. 

THE AGENCIES RESPONSIBLE FOR THE ADMINISTRATION OF THE ACT HAD
INTERPRETED IT AS NOT APPLYING TO NEW CONSTRUCTION NOT YET USED IN
INTERSTATE COMMERCE.  WAGE AND HOUR INTERPRETATIVE BULLETIN NO. 5,
PARA. 12, DEC. 2, 1938; BNA, 1944-1945 WH MAN.  23: 

"THE QUESTION ARISES WHETHER THE EMPLOYEES OF BUILDERS AND
CONTRACTORS ARE ENTITLED TO THE BENEFITS OF THE ACT.  THE EMPLOYEES OF
LOCAL CONSTRUCTION CONTRACTORS GENERALLY ARE NOT ENGAGED IN INTERSTATE
COMMERCE AND DO NOT PRODUCE ANY GOODS WHICH ARE SHIPPED OR SOLD ACROSS
STATE LINES.  THUS, IT IS OUR OPINION THAT EMPLOYEES ENGAGED IN THE
ORIGINAL CONSTRUCTION OF BUILDINGS ARE NOT GENERALLY WITHIN THE SCOPE
OF THE ACT, EVEN IF THE BUILDINGS WHEN COMPLETED WILL BE USED TO
PRODUCE GOODS FOR COMMERCE  ...  ." 

IN THE WAGE HOUR MANUAL, BUREAU OF NATIONAL AFFAIRS LABOR RELATIONS
REPORTER, VOL. 6, 10:237, THE RULE IS INTERPRETED AS FOLLOWS: 

"IN INTERPRETING THE ACT'S APPLICATION TO EMPLOYERS IN THE BUILDING
AND CONSTRUCTION INDUSTRY, THE WAGE AND HOUR DIVISION AND THE COURTS
HAVE DRAWN A DISTINCTION BETWEEN THE ORIGINAL CONSTRUCTION OF BUILDINGS
OR FACILITIES AND THEIR REPAIR OR RECONSTRUCTION." 

WE ARE NOT DEALING HERE WITH IMPROVING OR REPAIRING EXISTING
FACILITIES WHICH ARE ALREADY IN COMMERCE, BUT WITH NEW CONSTRUCTION
THAT HAS NEVER BEEN USED IN COMMERCE. 

IT SEEMS, THEREFORE, THAT THE SECRETARY OF LABOR HAS QUITE RECENTLY
CHANGED HIS MIND ABOUT THE APPLICATION OF THE ACT TO NEW CONSTRUCTION
NOT YET USED OR NOT AN INTEGRAL PART OF INTERSTATE COMMERCE.  HIS
CHANGE OF MIND SHOULD NOT CHANGE THE LAW.  THIS COURT, WHICH MAY CHANGE
THE LAW, SEEMS TO HAVE CHANGED ITS MIND ABOUT THE SAME TIME AND WITHOUT
SAYING WHY IT DOES DO, EXCEPT THAT THE FOREGOING CASES ARE OF A
DIFFERENT VINTAGE.  I AM UNABLE TO DISTINGUISH THE CASES ON THE VINTAGE
TEST.  WITHOUT OVERRULING THE RAYMOND, WHITE AND MURPHEY DECISIONS AND
THE NUMBER OF CASES DECIDED BY THE CIRCUIT COURTS, THIS COURT BRUSHES
THEM OFF AS OF ANOTHER VINTAGE. 

RELIANCE UPON THIS COURT'S OPINIONS BECOMES A HAZARDOUS BUSINESS FOR
LAWYERS AND JUDGES, NOT TO MENTION CONTRACTORS, WHO ARE NOT FAMILIAR
WITH THE VINTAGE TEST. 
..END :





FEDERAL POWER COMMISSION V. OREGON 349 U.S. 435 


NO. 367.  ARGUED MARCH 2-3, 1955 - DECIDED JUNE 6, 1955 - 211 F.2D 347,
REVERSED. 


THE FEDERAL POWER COMMISSION ISSUED TO A POWER COMPANY A LICENSE TO
CONSTRUCT, OPERATE AND MAINTAIN A HYDROELECTRIC PLANT, CONSTITUTING
PELTON PROJECT NO. 2030, ON RESERVED LANDS OF THE UNITED STATES ON THE
DESCHUTES RIVER IN OREGON.  THE STATE OF OREGON CHALLENGED THE
AUTHORITY OF THE COMMISSION TO ISSUE THE LICENSE AND THE ADEQUACY OF
THE PROVISIONS APPROVED BY THE COMMISSION FOR THE CONSERVATION OF
ANADROMOUS FISH.  HELD:  THE FEDERAL POWER ACT IS APPLICABLE IN
ACCORDANCE WITH ITS TERMS, AND THE COMMISSION ACTED WITHIN ITS POWERS
AND ITS DISCRETION IN GRANTING THE LICENSE.  PP. 437-452. 

1.  THE FEDERAL POWER ACT IS APPLICABLE TO THIS LICENSE.  PP. 441
446. 

(A)  THE FEDERAL JURISDICTION HERE DERIVES FROM THE OWNERSHIP OR
CONTROL BY THE UNITED STATES OF THE RESERVED LANDS ON WHICH THE
LICENSED PROJECT IS TO BE LOCATED.  P. 442. 

(B)  THE AUTHORITY TO ISSUE LICENSES IN RELATION TO PUBLIC LANDS AND
RESERVATIONS OF THE UNITED STATES STEMS FROM THE PROPERTY CLAUSE, ART.
IV, SEC. 3, OF THE CONSTITUTION.  PP.  442-444. 

(C)  AUTHORIZATION OF THIS PROJECT IS WITHIN THE EXCLUSIVE
JURISDICTION OF THE COMMISSION AND DOES NOT REQUIRE THE CONSENT OF THE
STATE.  PP. 445-446. 

2.  THE ACTS OF JULY 26, 1866, JULY 9, 1870, AND THE DESERT LAND ACT
OF 1877 DO NOT APPLY TO THIS LICENSE, WHICH RELATES ONLY TO THE USE OF
WATERS ON RESERVATIONS OF THE UNITED STATES.  PP. 446-448. 

(A)  THE LANDS INVOLVED HERE ARE NOT "PUBLIC LANDS" BUT
"RESERVATIONS"; AND THESE ACTS DO NOT APPLY TO RESERVED LANDS AND
WATERS.  PP. 446-448. 

(B)  STATUTES PROVIDING GENERALLY FOR DISPOSAL OF THE PUBLIC DOMAIN
ARE INAPPLICABLE TO LANDS WHICH ARE NOT UNQUALIFIEDLY SUBJECT TO SALE
AND DISPOSITION BECAUSE THEY HAVE BEEN APPROPRIATED TO SOME OTHER
PURPOSE.  P. 448. 

3.  THERE WAS NO ABUSE OF DISCRETION BY THE COMMISSION IN GRANTING
THE LICENSE.  PP. 448-452. 

(A)  IN THE REREGULATION OF THE FLOW OF THE STREAM, THE COMMISSION
ACTS ON BEHALF OF THE PEOPLE OF THE STATE, AS WELL AS ALL OTHERS, IN
SEEING TO IT THAT THE INTERESTS OF ALL CONCERNED ARE ADEQUATELY
PROTECTED.  P. 449. 

(B)  THE PROVISION FOR THE OPERATION AND MAINTENANCE OF FISH
CONSERVATION FACILITIES WAS REASONABLE AND WITHIN THE COMMISSION'S
DISCRETION.  PP. 449-452. 

(C)  THE CONTENTION THAT THE PROJECT WILL PRECLUDE THE CARRYING OUT
OF CERTAIN PLANS FOR THE COLUMBIA RIVER BASIN MAY PROPERLY BE DIRECTED
TO THE COMMISSION OR TO CONGRESS, BUT IS NOT FOR THIS COURT TO ANSWER
UPON THE BASIS OF EXISTING LEGAL RIGHTS.  P. 452. 

FEDERAL POWER COMMISSION V. OREGON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

AS IN FIRST IOWA COOP.  V. FEDERAL POWER COMMISSION, 328 U.S. 152,
THIS CASE ILLUSTRATES THE INTEGRATION OF THE FEDERAL AND STATE
JURISDICTIONS IN LICENSING WATER POWER PROJECTS UNDER THE FEDERAL POWER
ACT.  (FN1)  IN THE FIRST IOWA CASE WE SUSTAINED THE AUTHORITY OF THE
COMMISSION TO LICENSE A POWER PROJECT TO USE NAVIGABLE WATERS OF THE
UNITED STATES LOCATED IN IOWA.  HERE, WITHOUT FINDING THAT THE WATERS
ARE NAVIGABLE, THE COMMISSION HAS ISSUED A COMPARABLE LICENSE FOR A
POWER PROJECT TO USE WATERS ON LANDS CONSTITUTING RESERVATIONS OF THE
UNITED STATES LOCATED IN OREGON.  THE STATE OF OREGON QUESTIONS THE
AUTHORITY OF THE COMMISSION TO DO THIS AND THE ADEQUACY OF THE
PROVISIONS APPROVED BY THE COMMISSION FOR THE CONSERVATION OF
ANADROMOUS FISH.  (FN2)  FOR THE REASONS HEREAFTER STATED, WE SUSTAIN
THE COMMISSION.   IN 1949, THE NORTHWEST POWER SUPPLY COMPANY OF
PORTLAND, OREGON, APPLIED TO THE FEDERAL POWER COMMISSION FOR A LICENSE
TO CONSTRUCT, OPERATE AND MAINTAIN A HYDROELECTRIC PLANT, CONSTITUTING
PELTON PROJECT NO. 2030, ON RESERVED LANDS OF THE UNITED STATES ON THE
DESCHUTES RIVER IN OREGON, (FN3) AND, IN 1951, THE PORTLAND GENERAL
ELECTRIC COMPANY OF PORTLAND, OREGON, SUCCEEDED TO A SUPPLEMENTARY
APPLICATION FOR THAT LICENSE. 

THE PELTON PROJECT IS DESIGNED TO INCLUDE A CONCRETE DAM 205 FEET
HIGH AND A POWERHOUSE CONTAINING THREE 36,000-KILOWATT GENERATORS.  IT
IS TO BE BUILT ACROSS THE DESCHUTES RIVER ON RESERVED LANDS OF THE
UNITED STATES LOCATED BELOW THE JUNCTION OF ITS METOLIUS AND CROOKED
RIVER TRIBUTARIES.  (FN4) THE WESTERN TERMINUS OF THE DAM IS TO OCCUPY
LANDS, WITHIN THE WARM SPRINGS INDIAN RESERVATION, WHICH HAVE BEEN
RESERVED BY THE UNITED STATES FOR POWER PURPOSES SINCE 1910 AND 1913. 
(FN5)  THE EASTERN TERMINUS OF THE DAM IS TO BE ON LANDS OF THE UNITED
STATES WHICH, AT LEAST SINCE 1909, HAVE BEEN WITHDRAWN FROM ENTRY UNDER
THE PUBLIC LAND LAWS AND RESERVED FOR POWER PURPOSES.  (FN6)  THE
PROJECT CALLS FOR NO PERMANENT DIVERSION OF WATER AS THE ENTIRE FLOW OF
THE RIVER WILL RUN THROUGH OR OVER THE DAM INTO THE NATURAL BED OF THE
STREAM.  THIS DAM WILL MAKE AVAILABLE THE HEAD AND VOLUME OF WATER
REQUIRED FOR THE PROJECT AND THE WATER IMPOUNDED BY IT WILL CREATE A
NARROW RESERVOIR, SUBMERGING LANDS THE TITLE TO WHICH IS OR WILL BE IN
THE UNITED STATES.  VARIATIONS AND INTERRUPTIONS IN THE FLOW OF THE
STREAM, CAUSED BY TEMPORARY STORAGE OR USE OF WATER FOR POWER PURPOSES,
ARE TO BE CONTROLLED BY A "REREGULATING DAM" APPROVED BY THE COMMISSION
AND LOCATED ON PRIVATE PROPERTY, TO BE ACQUIRED, ABOUT THREE MILES
BELOW THE POWER DAM.  NO OBJECTION IS MADE TO THE REREGULATING DAM.  TO
THE EXTENT THAT ACCESS TO EXISTING SPAWNING GROUNDS FOR ANADROMOUS FISH
IS CUT OFF BY THE POWER DAM, OTHER FACILITIES ON PRIVATE PROPERTY, TO
BE ACQUIRED, ARE TO BE CONSTRUCTED AND MAINTAINED ON TERMS APPROVED BY
THE COMMISSION AND DESIGNED TO DEVELOP AN EQUAL OR GREATER FISH
POPULATION.  OPPORTUNITIES FOR RECREATIONAL USES OF THE AREA ARE TO BE
ENHANCED AND NO ISSUE AS TO WATER POLLUTION IS BEFORE US. 

THE STATE OF OREGON, THE FISH COMMISSION OF OREGON, THE OREGON STATE
GAME COMMISSION AND THE OREGON DIVISION OF THE IZAAK WALTON LEAGUE
INTERVENED BEFORE THE COMMISSION AND EACH FILED OBJECTIONS TO THE
GRANTING OF THE LICENSE.  SOME OF THEIR OBJECTIONS RELATED TO THE
AUTHORITY OF THE COMMISSION TO GRANT THE LICENSE AND OTHERS TO THE
SUITABILITY OF THE PROPOSED FISH CONSERVATION FACILITIES. 

FOLLOWING EXTENDED HEARINGS, THE COMMISSION'S PRESIDING EXAMINER
RECOMMENDED THE LICENSE.  AFTER EXCEPTIONS TO THAT RECOMMENDATION THE
COMMISSION ISSUED ITS OPINION AND AN ORDER GRANTING THE LICENSE.  10
F.P.C. 445, 450, 92 P.U.R. (N.S.)  247.  THE COMMISSION FOUND THAT A
PUBLIC NEED EXISTS FOR THE EARLY COMPLETION OF THE PROJECT TO MEET A
SEVERE POWER SHORTAGE IN THE PACIFIC NORTHWEST.  IT FOUND ALSO THAT THE
PROJECT IS IN THE PUBLIC INTEREST, WILL PROVIDE FOR COMPREHENSIVE
DEVELOPMENT OF THE AFFECTED STRETCH OF THE DESCHUTES RIVER, AND WILL BE
CONSISTENT WITH FURTHER COMPREHENSIVE DEVELOPMENT OF THAT STREAM AND OF
THE COLUMBIA BASIN.  IT HELD THAT THE IMPROVEMENTS WILL CONTRIBUTE
VALUABLE PUBLIC BENEFITS WHICH WILL NOT BE AVAILABLE IF THE RIVER IS
MAINTAINED IN ITS PRESENT NATURAL CONDITION.  (FN7)  THE COMMISSION
STATED THAT THE PROJECT WILL BE SUBJECT TO ALL EXISTING RIGHTS TO THE
USE OF THE WATERS OF THE RIVER, WHETHER PERFECTED OR NOT.  IT
PRESCRIBED TEMPORARY MEASURES TO BE TAKEN TO MEET THE NEEDS OF THE
ANADROMOUS FISH DURING THE CONSTRUCTION OF THE PROJECT AND APPROVED
CERTAIN PERMANENT FACILITIES, PRACTICES AND EXPENDITURES IN RELATION TO
SUCH FISH.  THE OPINION STATED "THAT NO SUBSTANTIAL EVIDENCE HAS BEEN
BROUGHT FORWARD TO SHOW THAT THE FACILITIES PROPOSED FOR CONSERVING THE
FISH WILL NOT MAINTAIN EXISTING RUNS.  MOREOVER, THERE ARE INDICATIONS
THAT THE RUNS CAN BE INCREASED."  10 F.P.C., AT 450, 92 P.U.R. (N.S.),
AT 252. 

A REHEARING BEING DENIED, THE STATE AND ITS AGENCIES SOUGHT A REVIEW
BY THE COURT OF APPEALS FOR THE NINTH CIRCUIT AND THE PORTLAND GENERAL
ELECTRIC COMPANY INTERVENED.  THAT COURT, WITH ONE JUDGE DISSENTING,
SET ASIDE THE COMMISSION'S ORDER.  211 F.2D 347.  IT RECOGNIZED THE
NECESSITY OF A LICENSE FROM THE FEDERAL POWER COMMISSION BUT HELD THAT
CONGRESS, BY ITS PUBLIC LANDS LEGISLATION, LONG AGO HAD TRANSFERRED TO
THE STATE OF OREGON SUCH CONTROL OVER THE USE OF NONNAVIGABLE WATERS
THAT THE SPONSOR OF THE PELTON PROJECT MUST SECURE ALSO THE PERMISSION
PRESCRIBED BY THE STATE.  WE GRANTED CERTIORARI BECAUSE OF THE PUBLIC
SIGNIFICANCE OF THE ISSUES BUT DENIED LEAVE TO THE PORTLAND GENERAL
ELECTRIC COMPANY TO INTERVENE HERE.  348 U.S. 868.  28 U.S.C. SEC.
1254(1); 49 STAT. 860-861, 16 U.S.C. SEC.  825LB).  SEVERAL STATES
FILED BRIEFS AS AMICI CURIAE, USUALLY ADOPTING AS THEIR OWN THE BRIEF
FILED BY RESPONDENTS. 

WE DIVIDE OUR CONSIDERATION OF THE ISSUES INTO THREE PARTS. 

 I. APPLICABILITY OF THE FEDERAL POWER ACT. 

ON ITS FACE, THE FEDERAL POWER ACT APPLIES TO THIS LICENSE AS
SPECIFICALLY AS IT DID TO THE LICENSE IN THE FIRST IOWA CASE.  THERE
THE JURISDICTION OF THE COMMISSION TURNED ALMOST ENTIRELY UPON THE
NAVIGABILITY OF THE WATERS OF THE UNITED STATES TO WHICH THE LICENSE
APPLIED.  HERE THE JURISDICTION TURNS UPON THE OWNERSHIP OR CONTROL BY
THE UNITED STATES OF THE RESERVED LANDS ON WHICH THE LICENSED PROJECT
IS TO BE LOCATED.  (FN8)  THE AUTHORITY TO ISSUE LICENSES IN RELATION
TO NAVIGABLE WATERS OF THE UNITED STATES SPRINGS FROM THE COMMERCE
CLAUSE OF THE CONSTITUTION.  THE AUTHORITY TO DO SO IN RELATION TO
PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES SPRINGS FROM THE
PROPERTY CLAUSE - "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  ...  ."  ART. IV, SEC. 3. 
(FN9) 

IN THE INSTANT CASE THE PROJECT IS TO OCCUPY LANDS WHICH COME WITHIN
THE TERM "RESERVATIONS," AS DISTINGUISHED FROM "PUBLIC LANDS."  IN THE
FEDERAL POWER ACT, EACH HAS ITS ESTABLISHED MEANING.  "PUBLIC LANDS"
ARE LANDS SUBJECT TO PRIVATE APPROPRIATION AND DISPOSAL UNDER PUBLIC
LAND LAWS.  "RESERVATIONS" ARE NOT SO SUBJECT.  (FN10)  THE TITLE TO
THE LANDS UPON WHICH THE EASTERN TERMINUS OF THE DAM IS TO REST HAS
BEEN IN THE UNITED STATES SINCE THE CESSION BY GREAT BRITAIN OF THE
AREA NOW COMPRISING THE STATE OF OREGON.  EVEN IF FORMERLY THEY MAY
HAVE BEEN OPEN TO PRIVATE APPROPRIATION AS "PUBLIC LANDS," THEY WERE
WITHDRAWN FROM SUCH AVAILABILITY BEFORE ANY VESTED INTERESTS
CONFLICTING WITH THE PELTON PROJECT WERE ACQUIRED.  (FN11)  TITLE TO
THE BED OF THE DESCHUTES RIVER IS ALSO IN THE UNITED STATES.  (FN12)
SINCE THE INDIAN TREATY OF 1855, THE LANDS WITHIN THE INDIAN
RESERVATION, UPON WHICH THE WESTERN END OF THE DAM WILL REST, HAVE BEEN
RESERVED FOR THE USE OF THE INDIANS.  MORE RECENTLY THEY WERE RESERVED
FOR POWER PURPOSES (FN13) AND THE INDIANS HAVE GIVEN THEIR CONSENT TO
THE PROJECT BEFORE US.  ACCORDINGLY, THERE IS NO ISSUE HERE AS TO
WHETHER OR NOT THE TITLE TO THE TRIBAL LANDS IS IN THE UNITED STATES. 
(FN14) 

THERE THUS REMAINS NO QUESTION AS TO THE CONSTITUTIONAL AND STATUTORY
AUTHORITY OF THE FEDERAL POWER COMMISSION TO GRANT A VALID LICENSE FOR
A POWER PROJECT ON RESERVED LANDS OF THE UNITED STATES, PROVIDED THAT,
AS REQUIRED BY THE ACT, THE USE OF THE WATER DOES NOT CONFLICT WITH
VESTED RIGHTS OF OTHERS.  (FN15)  TO ALLOW OREGON TO VETO SUCH USE, BY
REQUIRING THE STATE'S ADDITIONAL PERMISSION, WOULD RESULT IN THE VERY
DUPLICATION OF REGULATORY CONTROL PRECLUDED BY THE FIRST IOWA
DECISION.  328 U.S. 152, 177-179.  NO SUCH DUPLICATION OF AUTHORITY IS
CALLED FOR BY THE ACT.  (FN16)  THE COURT OF APPEALS IN THE INSTANT
CASE AGREES.  211 F.2D, AT 351.  AND SEE WASHINGTON DEPARTMENT OF GAME
V. FEDERAL POWER COMMISSION, 207 F.2D 391, 395-396.  AUTHORIZATION OF
THIS PROJECT, THEREFORE, IS WITHIN THE EXCLUSIVE JURISDICTION OF THE
FEDERAL POWER COMMISSION, UNLESS THAT JURISDICTION IS MODIFIED BY OTHER
FEDERAL LEGISLATION.  SEE UNITED STATES V. RIO GRANDE IRRIGATION CO.,
174 U.S. 690, 703; GUTIERRES V. ALBUQUERQUE LAND CO., 188 U.S. 545,
554. 

                     II.  INAPPLICABILITY OF THE DESERT LAND ACT OF
1877

                   AND RELATED ACTS. 

THE STATE OF OREGON ARGUES THAT THE ACTS OF JULY 26, 1866, (FN17)
JULY 9, 1870, (FN18) AND THE DESERT LAND ACT OF 1877 (FN19) CONSTITUTE
AN EXPRESS CONGRESSIONAL DELEGATION OR CONVEYANCE TO THE STATE OF THE
POWER TO REGULATE THE USE OF THESE WATERS.  THE ARGUMENT IS THAT THESE
ACTS PRECLUDE OR RESTRICT THE SCOPE OF THE JURISDICTION, OTHERWISE
APPARENT ON THE FACE OF THE FEDERAL POWER ACT, AND REQUIRE THE CONSENT
OF THE STATE TO A PROJECT SUCH AS THE ONE BEFORE US. 

THE NATURE AND EFFECT OF THESE ACTS HAVE BEEN DISCUSSED PREVIOUSLY BY
THIS COURT.  THE PURPOSE OF THE ACTS OF 1866 AND 1870 WAS GOVERNMENTAL
RECOGNITION AND SANCTION OF POSSESSORY RIGHTS ON PUBLIC LANDS ASSERTED
UNDER LOCAL LAWS AND CUSTOMS.  JENNISON V. KIRK, 98 U.S. 453.  THE
DESERT LAND ACT SEVERED, FOR PURPOSES OF PRIVATE ACQUISITION, SOIL AND
WATER RIGHTS ON PUBLIC LANDS, AND PROVIDED THAT SUCH WATER RIGHTS WERE
TO BE ACQUIRED IN THE MANNER PROVIDED BY THE LAW OF THE STATE OF
LOCATION.  CALIFORNIA OREGON POWER CO. V. BEAVER PORTLAND CEMENT CO.,
295 U.S. 142.  SEE ALSO, NEBRASKA V. WYOMING, 325 U.S. 589, 611-616. 

IT IS NOT NECESSARY FOR US, IN THE INSTANT CASE, TO PASS UPON THE
QUESTION WHETHER THIS LEGISLATION CONSTITUTES THE EXPRESS DELEGATION OR
CONVEYANCE OF POWER THAT IS CLAIMED BY THE STATE, BECAUSE THESE ACTS
ARE NOT APPLICABLE TO THE RESERVED LANDS AND WATERS HERE INVOLVED.  THE
DESERT LAND ACT COVERS "SOURCES OF WATER SUPPLY UPON THE PUBLIC LANDS
...  ."  THE LANDS BEFORE US IN THIS CASE ARE NOT "PUBLIC LANDS" BUT
"RESERVATIONS."  EVEN WITHOUT THAT EXPRESS RESTRICTION OF THE DESERT
LAND ACT TO SOURCES OF WATER SUPPLY ON PUBLIC LANDS, THESE ACTS WOULD
NOT APPLY TO RESERVED LANDS.  "IT IS A FAMILIAR PRINCIPLE OF PUBLIC
LAND LAW THAT STATUTES PROVIDING GENERALLY FOR DISPOSAL OF THE PUBLIC
DOMAIN ARE INAPPLICABLE TO LANDS WHICH ARE NOT UNQUALIFIEDLY SUBJECT TO
SALE AND DISPOSITION BECAUSE THEY HAVE BEEN APPROPRIATED TO SOME OTHER
PURPOSE."  UNITED STATES V. O'DONNELL, 303 U.S. 501, 510.  SEE ALSO,
UNITED STATES V. MINNESOTA, 270 U.S. 181, 206.  THE INSTANT LANDS
CERTAINLY "ARE NOT UNQUALIFIEDLY SUBJECT TO SALE AND DISPOSITION  ...
."  ACCORDINGLY, IT IS ENOUGH, FOR THE INSTANT CASE, TO RECOGNIZE THAT
THESE ACTS DO NOT APPLY TO THIS LICENSE, WHICH RELATES ONLY TO THE USE
OF WATERS ON RESERVATIONS OF THE UNITED STATES. 

 III.  APPLICATION OF THE FEDERAL POWER ACT TO THIS PROJECT. 

FINALLY, RESPONDENTS QUESTION THE DISCRETION USED BY THE COMMISSION
IN GRANTING THE LICENSE.  THEY POINT TO THE CONSEQUENCES WHICH THE
PROJECT WILL HAVE BEYOND THE LIMITS OF THE RESERVED LANDS ON WHICH IT
WILL BE LOCATED. 

THE FIRST CONSEQUENCE IS THE INEVITABLE VARIATION IN, OR THE
TEMPORARY INTERRUPTION OF, THE FLOW OF THE STREAM.  THE COMMISSION IS
SATISIFED THAT IT HAS OVERCOME THIS OBJECTION BY ITS PROVISION FOR A
REREGULATING DAM.  IT HAS APPROVED THE TECHNICAL FEATURES INVOLVED AND
THE SITE FOR THAT DAM WILL BE ACQUIRED IN ACCORDANCE WITH THE PROPERTY
LAWS OF OREGON.  (FN20)  IN THIS REREGULATION OF THE FLOW OF THE
STREAM, THE COMMISSION ACTS ON BEHALF OF THE PEOPLE OF OREGON, AS WELL
AS ALL OTHERS, IN SEEING TO IT THAT THE INTERESTS OF ALL CONCERNED ARE
ADEQUATELY PROTECTED. 

THERE REMAINS THE EFFECT OF THE PROJECT UPON ANADROMOUS FISH WHICH
USE THESE WATERS AS SPAWNING GROUNDS.  ALL AGREE THAT THE 205-FOOT DAM
WILL CUT OFF ACCESS OF SOME FISH TO THEIR NATURAL SPAWNING GROUNDS
ABOVE THE DAM AND THAT SUCH INTERRUPTION CANNOT BE OVERCOME BY FISH
LADDERS.  (FN21) HOWEVER, THE STATE DOES NOT FLATLY PROHIBIT THE
CONSTRUCTION OF DAMS THAT CUT OFF ANADROMOUS FISH FROM THEIR SPAWNING
OR BREEDING GROUNDS.  (FN22)  ONE ALTERNATIVE, THUS RECOGNIZED, IS THE
SUPPLYING OF NEW BREEDING POOLS TO WHICH THE FISH CAN BE REMOVED AT
APPROPRIATE TIMES.  (FN23)  THE FISH COMMISSION OF OREGON HAS DENIED A
PERMIT TO THE PORTLAND GENERAL ELECTRIC COMPANY TO CARRY OUT ITS
PRESENT PROPOSAL BUT THERE APPEARS TO BE NO DISAGREEMENT AS TO THE
UNDERLYING PRINCIPLE INVOLVED.  (FN24)    THE APPLICANT HAS AGREED TO
PROVIDE FACILITIES FOR CONSERVING THE RUNS OF ANADROMOUS FISH IN
ACCORDANCE WITH PLANS APPROVED BY THE FEDERAL POWER COMMISSION.  THE
CAPITAL COST OF THESE FACILITIES AND OF THE REREGULATING DAM, TO BE
BORNE BY THE APPLICANT, IS ESTIMATED AT $4,430,000.  THE TOTAL ANNUAL
COST DUE TO THESE FACILITIES IS ESTIMATED AT $795,000.  THE COMMISSION
HAS FOUND EACH OF THESE ESTIMATES TO BE REASONABLE.  OF THE $795,000
ANNUAL COST, THE APPLICANT WILL BEAR $410,000 (COST OF BORROWED MONEY,
DEPRECIATION AND TAXES ON THE CAPITAL INVESTMENT), AND THE $10,000
MAINTENANCE COST OF THE REREGULATING DAM.  IN ADDITION, IT HAS OFFERED
TO CONTRIBUTE $100,000 ANNUALLY TOWARD THE ESTIMATED $375,000 COST OF
OPERATION AND MAINTENANCE OF THE FISH CONSERVATION FACILITIES, AND THE
COMMISSION HAS RETAINED THE POWER TO FIX THE AMOUNT OF THE APPLICANT'S
CONTRIBUTION IF A SUM IS NOT AGREED UPON. 

THE CARE GIVEN TO THE PREPARATION OF THIS CONSERVATION PROGRAM AND
THE LARGE INVESTMENT TO BE MADE IN IT ARE IMPRESSIVE.  IT ALSO IS OF
INTEREST THAT THE FISH COMMISSION OF OREGON ALREADY IS OPERATING
SOMEWHAT COMPARABLE BUT SMALLER FACILITIES OF THIS KIND ON THE METOLIUS
RIVER. 

ONE ARGUMENT AGAINST THE PROJECT GOES BEYOND THE NEED TO CONSERVE THE
EXISTING FISH POPULATION.  IT IS ARGUED THAT THE PROJECT WILL PRECLUDE
THE CARRYING OUT OF CERTAIN PLANS FOR THE COLUMBIA RIVER BASIN WHICH
CONTEMPLATE GREATLY ENLARGING THE FISH POPULATION IN THE DESCHUTES
RIVER AREA, BY CONCENTRATING THERE OTHER RUNS OF FISH NOT NOW USING
THAT RIVER.  WHILE SUCH AN ARGUMENT MAY PROPERLY BE DIRECTED TO THE
FEDERAL POWER COMMISSION OR TO CONGRESS, IT IS NOT ONE FOR US TO ANSWER
UPON THE BASIS OF EXISTING LEGAL RIGHTS. 

WE CONCLUDE, THEREFORE, THAT, ON THE FACTS HERE PRESENTED, THE
FEDERAL POWER ACT IS APPLICABLE IN ACCORDANCE WITH ITS TERMS, AND THAT
THE FEDERAL POWER COMMISSION HAS ACTED WITHIN ITS POWERS AND ITS
DISCRETION IN GRANTING THE LICENSE NOW BEFORE US. 

THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS REVERSED. 

FN1  41 STAT. 1063, AS AMENDED, 49 STAT. 838, 16 U.S.C. SECS. 791A
825R. 

FN2  FISH ASCENDING RIVERS FROM THE SEA FOR BREEDING PURPOSES.  IN
THIS INSTANCE, ESPECIALLY SALMON AND STEELHEAD TROUT.  FOR AN OUTLINE
OF THE GENERAL PROBLEM PRESENTED, SEE SCHWARTZ, FEDERALISM AND
ANADROMOUS FISH, 23 GEO. WASH. L. REV. 535. 

FN3  IN 1924, THE COLUMBIA VALLEY POWER COMPANY, INC., HAD APPLIED TO
THE FEDERAL POWER COMMISSION FOR A LICENSE TO DEVELOP PELTON PROJECT
NO. 57 AT SUBSTANTIALLY THE SAME SITE.  THAT LICENSE WAS ISSUED BUT,
DUE TO THE LICENSEE'S FAILURE TO PROCEED WITH CONSTRUCTION AS REQUIRED
BY THE COMMISSION, IT WAS CANCELED IN 1936. 

FN4  THE DESCHUTES RIVER IS ENTIRELY WITHIN THE STATE OF OREGON.  IT
DRAINS THE EASTERN SLOPE OF THE CASCADE RANGE AND FLOWS NORTHWARD,
ACROSS THE LANDS OF THE UNITED STATES HERE INVOLVED, TO THE COLUMBIA
RIVER, WHICH IT MEETS ABOUT 15 MILES ABOVE THE DALLES.  THE COMMISSION
HAS MADE NO FINDINGS AS TO ITS NAVIGABILITY OR AS TO THE RELATION
BETWEEN ITS FLOW AND THE NAVIGABILITY OF OTHER STREAMS.   THROUGHOUT
ITS LOWER 130 MILES, WHICH INCLUDE THE PROJECT SITE, IT FLOWS IN A
NARROW CANYON WITH AN AVERAGE FALL OF 17.6 FEET PER MILE AND,
APPARENTLY, IT IS GENERALLY RECOGNIZED AS INCAPABLE OF SUSTAINING
NAVIGATION.  ACCORDINGLY, THROUGHOUT THIS LITIGATION, THE RIVER HAS
BEEN TREATED BY ALL CONCERNED AS NOT CONSTITUTING "NAVIGABLE WATERS" OF
THE UNITED STATES AS DEFINED IN SEC. 3(8) OF THE FEDERAL POWER ACT, 49
STAT. 838, 16 U.S.C. SEC. 796(8).  WE DO NOT PASS EITHER UPON THAT
QUESTION OR UPON THE RELATIONSHIP TO INTERSTATE COMMERCE OF THE
PROPOSED USE OF THE WATERS OF THE RIVER. 

FN5  THE WARM SPRINGS INDIAN RESERVATION WAS ESTABLISHED BY THE
TREATY OF JUNE 25, 1855, WITH THE INDIANS IN MIDDLE OREGON.  RATIFIED
BY THE SENATE MARCH 8, 1859, AND PROCLAIMED BY THE PRESIDENT APRIL 18,
1859, IT SECURED TO THE INDIANS "THE EXCLUSIVE RIGHT OF TAKING FISH IN
THE STREAMS RUNNING THROUGH AND BORDERING SAID RESERVATION  ...  ."  12
STAT. 963, 964.  OREGON HAS RECOGNIZED THAT IT IS BOUND BY THIS
TREATY.  ANTHONY V. VEATCH, 189 ORE.  462, 483-485, 220 P.2D 493, 502
503.  SEE ALSO, UNITED STATES V. WINANS, 198 U.S. 371. 

INDIAN POWER SITE RESERVE NO. 2 WAS CREATED NOVEMBER 1, 1910, AND
INDIAN POWER SITE RESERVE NO. 294 WAS CREATED OCTOBER 8, 1913, BOTH BY
THE SECRETARY OF THE INTERIOR UNDER AN ACT OF JUNE 25, 1910, 36 STAT.
855, 858. 

FN6  POWER SITE RESERVE NO. 66 WAS CREATED DECEMBER 30, 1909, BY THE
SECRETARY OF THE INTERIOR AND MADE PERMANENT BY AN EXECUTIVE ORDER OF
JULY 2, 1910, UNDER AN ACT OF JUNE 25, 1910, 36 STAT. 847.  IN
ADDITION, A RESERVATION OCCURRED IN CONNECTION WITH THE APPLICATION
MADE TO THE FEDERAL POWER COMMISSION, IN 1924, FOR A LICENSE FOR PELTON
PROJECT NO. 57.  COMPARABLE WITHDRAWALS WERE MADE IN 1949 AND 1951 IN
CONNECTION WITH THE PRESENT APPLICATION.  SEE SEC. 24 OF THE FEDERAL
POWER ACT, 41 STAT. 1075-1076, AND AMENDMENTS, 16 U.S.C. SEC. 818. 

FN7  "(44)  UNDER PRESENT CIRCUMSTANCES AND CONDITIONS, AND UPON THE
TERMS AND CONDITIONS HEREINAFTER PROVIDED IN THE LICENSE, THE PROJECT
IS BEST ADAPTED TO A COMPREHENSIVE PLAN FOR THE IMPROVEMENT AND
UTILIZATION OF WATER-POWER DEVELOPMENT, FOR THE CONSERVATION AND
PRESERVATION OF THE FISH AND WILDLIFE RESOURCES, AND FOR OTHER
BENEFICIAL PUBLIC USES INCLUDING RECREATIONAL PURPOSES. 

"(45)  THE PORTLAND GENERAL ELECTRIC CO. IS A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF OREGON AND HAS SUBMITTED SATISFACTORY
EVIDENCE OF COMPLIANCE WITH THE REQUIREMENTS OF ALL APPLICABLE STATE
LAWS INSOFAR AS NECESSARY TO EFFECT THE PURPOSES OF A LICENSE FOR THE
PROJECT."  10 F.P.C., AT 456.  AND SEE SECS. 9(B) AND 10(A) OF THE
FEDERAL POWER ACT, 41 STAT. 1068, 16 U.S.C. SEC. 802(B), AND 49 STAT.
842, 16 U.S.C. SEC 803(A). 

FN8  "SEC.  4.  THE COMMISSION IS HEREBY AUTHORIZED AND EMPOWERED: 

     *     *         *         *         * 

"(E)  TO ISSUE LICENSES  ...  TO ANY CORPORATION ORGANIZED UNDER THE
LAWS OF THE UNITED STATES OR ANY STATE THEREOF  ...  FOR THE PURPOSE OF
CONSTRUCTING, OPERATING, AND MAINTAINING DAMS, WATER CONDUITS,
RESERVOIRS, POWER HOUSES, TRANSMISSION LINES, OR OTHER PROJECT WORKS
NECESSARY OR CONVENIENT FOR THE DEVELOPMENT AND IMPROVEMENT OF
NAVIGATION AND FOR THE DEVELOPMENT, TRANSMISSION, AND UTILIZATION OF
POWER ACROSS, ALONG, FROM, OR IN ANY OF THE STREAMS OR OTHER BODIES OF
WATER OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS AUTHORITY TO
REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES, OR
UPON ANY PART OF THE PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES
...  :  PROVIDED, THAT LICENSES SHALL BE ISSUED WITHIN ANY RESERVATION
ONLY AFTER A FINDING BY THE COMMISSION THAT THE LICENSE WILL NOT
INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH
RESERVATION WAS CREATED OR ACQUIRED, AND SHALL BE SUBJECT TO AND
CONTAIN SUCH CONDITIONS AS THE SECRETARY OF THE DEPARTMENT UNDER WHOSE
SUPERVISION SUCH RESERVATION FALLS SHALL DEEM NECESSARY FOR THE
ADEQUATE PROTECTION AND UTILIZATION OF SUCH RESERVATION:  ...  . 

*         *         *         *         * 

"SEC. 23  ...  . 

"(B)  IT SHALL BE UNLAWFUL FOR ANY PERSON, STATE, OR MUNICIPALITY,
FOR THE PURPOSE OF DEVELOPING ELECTRIC POWER, TO CONSTRUCT, OPERATE, OR
MAINTAIN ANY DAM, WATER CONDUIT, RESERVOIR, POWER HOUSE, OR OTHER WORKS
INCIDENTAL THERETO ACROSS, ALONG, OR IN ANY OF THE NAVIGABLE WATERS OF
THE UNITED STATES, OR UPON ANY PART OF THE PUBLIC LANDS OR RESERVATIONS
OF THE UNITED STATES (INCLUDING THE TERRITORIES), OR UTILIZE THE
SURPLUS WATER OR WATER POWER FROM ANY GOVERNMENT DAM, EXCEPT UNDER AND
IN ACCORDANCE WITH THE TERMS OF A PERMIT OR VALID EXISTING RIGHT-OF-WAY
GRANTED PRIOR TO JUNE 10, 1920, OR A LICENSE GRANTED PURSUANT TO THIS
ACT.  ANY PERSON, ASSOCIATION, CORPORATION, STATE, OR MUNICIPALITY
INTENDING TO CONSTRUCT A DAM OR OTHER PROJECT WORKS ACROSS, ALONG,
OVER, OR IN ANY STREAM OR PART THEREOF, OTHER THAN THOSE DEFINED HEREIN
AS NAVIGABLE WATERS, AND OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS
AUTHORITY TO REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE
SEVERAL STATES SHALL BEFORE SUCH CONSTRUCTION FILE DECLARATION OF SUCH
INTENTION WITH THE COMMISSION, WHEREUPON THE COMMISSION SHALL CAUSE
IMMEDIATE INVESTIGATION OF SUCH PROPOSED CONSTRUCTION TO BE MADE, AND
IF UPON INVESTIGATION IT SHALL FIND THAT THE INTERESTS OF INTERSTATE OR
FOREIGN COMMERCE WOULD BE AFFECTED BY SUCH PROPOSED CONSTRUCTION, SUCH
PERSON, ASSOCIATION, CORPORATION, STATE, OR MUNICIPALITY SHALL NOT
CONSTRUCT, MAINTAIN, OR OPERATE SUCH DAM OR OTHER PROJECT WORKS UNTIL
IT SHALL HAVE APPLIED FOR AND SHALL HAVE RECEIVED A LICENSE UNDER THE
PROVISIONS OF THIS ACT.  IF THE COMMISSION SHALL NOT SO FIND, AND IF NO
PUBLIC LANDS OR RESERVATIONS ARE AFFECTED, PERMISSION IS HEREBY GRANTED
TO CONSTRUCT SUCH DAM OR OTHER PROJECT WORKS IN SUCH STREAM UPON
COMPLIANCE WITH STATE LAWS."  49 STAT. 839, 840, 846, 16 U.S.C. SECS.
797(E), 817. 

FN9  IN WHAT IS SOMEWHAT OF A COMPANION CASE TO THE ONE BEFORE US,
THE COURT OF APPEALS FOR THE NINTH CIRCUIT HAS RECOGNIZED THAT, DESPITE
CONTENTIONS AS TO STATE CONTROL OF THE USE OF WATER AND THE CONSERVANCY
OF FISH WITHIN THE COLUMBIA RIVER BASIN, THE FEDERAL POWER COMMISSION
HAS THE AUTHORITY TO MAKE EFFECTIVE A LICENSE AND TO PROVIDE FACILITIES
FOR ANADROMOUS FISH MUCH AS IS HERE PROPOSED, WHEN THE WATERS INVOLVED
ARE NAVIGABLE WATERS OF THE UNITED STATES.  WASHINGTON DEPARTMENT OF
GAME V. FEDERAL POWER COMMISSION, 207 F.2D 391.  WE DENIED CERTIORARI
APRIL 5, 1954.  347 U.S. 936. 

FN10  "SEC.  3.  THE WORDS DEFINED IN THIS SECTION SHALL HAVE THE
FOLLOWING MEANINGS FOR PURPOSES OF THIS ACT, TO WIT: 

"(1)  'PUBLIC LANDS' MEANS SUCH LANDS AND INTEREST IN LANDS OWNED BY
THE UNITED STATES AS ARE SUBJECT TO PRIVATE APPROPRIATION AND DISPOSAL
UNDER PUBLIC LAND LAWS.  IT SHALL NOT INCLUDE 'RESERVATIONS', AS
HEREINAFTER DEFINED: 

"(2)  'RESERVATIONS' MEANS NATIONAL FORESTS, TRIBAL LANDS EMBRACED
WITHIN INDIAN RESERVATIONS, MILITARY RESERVATIONS, AND OTHER LANDS AND
INTERESTS IN LANDS OWNED BY THE UNITED STATES, AND WITHDRAWN, RESERVED,
OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC
LAND LAWS; ALSO LANDS AND INTERESTS IN LANDS ACQUIRED AND HELD FOR ANY
PUBLIC PURPOSES; BUT SHALL NOT INCLUDE NATIONAL MONUMENTS OR NATIONAL
PARKS; ...  ."  49 STAT. 838, 16 U.S.C.  SEC. 796(1) AND (2). 

FN11  SEE NOTE 6, SUPRA. 

FN12  SEE UNITED STATES V. UTAH, 283 U.S. 64, 75. 

FN13  SEE NOTE 5, SUPRA. 

FN14  SEE HYNES V. GRIMES PACKING CO., 337 U.S. 86, 103-104;
MINNESOTA V. UNITED STATES, 305 U.S. 382, 386. 

FN15  "SEC.  27.  THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS
AFFECTING OR INTENDING TO AFFECT OR IN ANY WAY TO INTERFERE WITH THE
LAWS OF THE RESPECTIVE STATES RELATING TO THE CONTROL, APPROPRIATION,
USE, OR DISTRIBUTION OF WATER USED IN IRRIGATION OR FOR MUNICIPAL OR
OTHER USES, OR ANY VESTED RIGHT ACQUIRED THEREIN."  41 STAT. 1077, 16
U.S.C. SEC. 821. 

FN16  "TO REQUIRE THE PETITIONER TO SECURE THE ACTUAL GRANT TO IT OF
A STATE PERMIT  ...  AS A CONDITION PRECEDENT TO SECURING A FEDERAL
LICENSE FOR THE SAME PROJECT UNDER THE FEDERAL POWER ACT WOULD VEST IN
THE EXECUTIVE COUNCIL OF IOWA A VETO POWER OVER THE FEDERAL PROJECT. 
SUCH A VETO POWER EASILY COULD DESTROY THE EFFECTIVENESS OF THE FEDERAL
ACT.  IT WOULD SUBORDINATE TO THE CONTROL OF THE STATE THE
'COMPREHENSIVE' PLANNING WHICH THE ACT PROVIDES SHALL DEPEND UPON THE
JUDGMENT OF THE FEDERAL POWER COMMISSION OR OTHER REPRESENTATIVES OF
THE FEDERAL GOVERNMENT. 

     *         *         *         *         * 

"IN THE FEDERAL POWER ACT THERE IS A SEPARATION OF THOSE SUBJECTS
WHICH REMAIN UNDER THE JURISDICTION OF THE STATES FROM THOSE SUBJECTS
WHICH THE CONSTITUTION DELEGATES TO THE UNITED STATES AND OVER WHICH
CONGRESS VESTS THE FEDERAL POWER COMMISSION WITH AUTHORITY TO ACT.  TO
THE EXTENT OF THIS SEPARATION, THE ACT ESTABLISHES A DUAL SYSTEM OF
CONTROL.  THE DUALITY OF CONTROL CONSISTS MERELY OF THE DIVISION OF THE
COMMON ENTERPRISE BETWEEN TWO COOPERATING AGENCIES OF GOVERNMENT, EACH
WITH FINAL AUTHORITY IN ITS OWN JURISDICTION.  THE DUALITY DOES NOT
REQUIRE TWO AGENCIES TO SHARE IN THE FINAL DECISION OF THE SAME ISSUE. 
WHERE THE FEDERAL GOVERNMENT SUPERSEDES THE STATE GOVERNMENT THERE IS
NO SUGGESTION THAT THE TWO AGENCIES BOTH SHALL HAVE FINAL AUTHORITY
...  . 

     *         *         *         *         * 

"THE ACT LEAVES TO THE STATES THEIR TRADITIONAL JURISDICTION SUBJECT
TO THE ADMITTEDLY SUPERIOR RIGHT OF THE FEDERAL GOVERNMENT, THROUGH
CONGRESS, TO REGULATE INTERSTATE AND FOREIGN COMMERCE, ADMINISTER THE
PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES AND, IN CERTAIN
CASES, EXERCISE AUTHORITY UNDER THE TREATIES OF THE UNITED STATES." 
FIRST IOWA COOP.  V. FEDERAL POWER COMMISSION, 328 U.S. 152, 164, 167
168, 171. 

FN17  "SEC.  9.  AND BE IT FURTHER ENACTED, THAT WHENEVER, BY
PRIORITY OF POSSESSION, RIGHTS TO THE USE OF WATER FOR MINING,
AGRICULTURAL, MANUFACTURING, OR OTHER PURPOSES, HAVE VESTED AND
ACCRUED, AND THE SAME ARE RECOGNIZED AND ACKNOWLEDGED BY THE LOCAL
CUSTOMS, LAWS, AND THE DECISIONS OF COURTS, THE POSSESSORS AND OWNERS
OF SUCH VESTED RIGHTS SHALL BE MAINTAINED AND PROTECTED IN THE SAME;
AND THE RIGHT OF WAY FOR THE CONSTRUCTION OF DITCHES AND CANALS FOR THE
PURPOSES AFORESAID IS HEREBY ACKNOWLEDGED AND CONFIRMED:  PROVIDED,
HOWEVER, THAT WHENEVER, AFTER THE PASSAGE OF THIS ACT, ANY PERSON OR
PERSONS SHALL, IN THE CONSTRUCTION OF ANY DITCH OR CANAL, INJURE OR
DAMAGE THE POSSESSION OF ANY SETTLER ON THE PUBLIC DOMAIN, THE PARTY
COMMITTING SUCH INJURY OR DAMAGE SHALL BE LIABLE TO THE PARTY INJURED
FOR SUCH INJURY OR DAMAGE."  14 STAT. 253, SEE 43 U.S.C. SEC. 661. 
FN18  "SEC.  17  ...  .  ALL PATENTS GRANTED, OR PREEMPTION OR
HOMESTEADS ALLOWED, SHALL BE SUBJECT TO ANY VESTED AND ACCRUED WATER
RIGHTS, OR RIGHTS TO DITCHES AND RESERVOIRS USED IN CONNECTION WITH
SUCH WATER RIGHTS, AS MAY HAVE BEEN ACQUIRED UNDER OR RECOGNIZED BY THE
NINTH SECTION OF THE ACT (14 STAT. 253, SUPRA) OF WHICH THIS ACT IS
AMENDATORY  ...  ."  16 STAT.  218, SEE 43 U.S.C. SEC. 661.    FN19  "
...  IT SHALL BE LAWFUL FOR ANY CITIZEN OF THE UNITED STATES, OR ANY
PERSON OF REQUISITE AGE 'WHO MAY BE ENTITLED TO BECOME A CITIZEN, AND
WHO HAS FILED HIS DECLARATION TO BECOME SUCH' AND UPON PAYMENT OF
TWENTY FIVE CENTS PER ACRE - TO FILE A DECLARATION UNDER OATH WITH THE
REGISTER AND THE RECEIVER OF THE LAND DISTRICT IN WHICH ANY DESERT LAND
IS SITUATED, THAT HE INTENDS TO RECLAIM A TRACT OF DESERT LAND NOT
EXCEEDING ONE SECTION, BY CONDUCTING WATER UPON THE SAME, WITHIN THE
PERIOD OF THREE YEARS THEREAFTER, PROVIDED HOWEVER THAT THE RIGHT TO
THE USE OF WATER BY THE PERSON SO CONDUCTING THE SAME, ON OR TO ANY
TRACT OF DESERT LAND OF SIX HUNDRED AND FORTY ACRES SHALL DEPEND UPON
BONA FIDE PRIOR APPROPRIATION:  AND SUCH RIGHT SHALL NOT EXCEED THE
AMOUNT OF WATER ACTUALLY APPROPRIATED, AND NECESSARILY USED FOR THE
PURPOSE OF IRRIGATION AND RECLAMATION:  AND ALL SURPLUS WATER OVER AND
ABOVE SUCH ACTUAL APPROPRIATION AND USE, TOGETHER WITH THE WATER OF
ALL, LAKES, RIVERS AND OTHER SOURCES OF WATER SUPPLY UPON THE PUBLIC
LANDS AND NOT NAVIGABLE, SHALL REMAIN AND BE HELD FREE FOR THE
APPROPRIATION AND USE OF THE PUBLIC FOR IRRIGATION, MINING AND
MANUFACTURING PURPOSES SUBJECT TO EXISTING RIGHTS.  SAID DECLARATION
SHALL DESCRIBE PARTICULARLY SAID SECTION OF LAND IF SURVEYED, AND, IF
UNSURVEYED, SHALL DESCRIBE THE SAME AS NEARLY AS POSSIBLE WITHOUT A
SURVEY.  AT ANY TIME WITHIN THE PERIOD OF THREE YEARS AFTER FILING SAID
DECLARATION, UPON MAKING SATISFACTORY PROOF TO THE REGISTER AND
RECEIVER OF THE RECLAMATION OF SAID TRACT OF LAND IN THE MANNER
AFORESAID, AND UPON THE PAYMENT TO THE RECEIVER OF THE ADDITIONAL SUM
OF ONE DOLLAR PER ACRE FOR A TRACT OF LAND NOT EXCEEDING SIX HUNDRED
AND FORTY ACRES TO ANY ONE PERSON, A PATENT FOR THE SAME SHALL BE
ISSUED TO HIM.  PROVIDED, THAT NO PERSON SHALL BE PERMITTED TO ENTER
MORE THAN ONE TRACT OF LAND NOT TO EXCEED SIX HUNDRED AND FORTY ACRES
WHICH SHALL BE IN COMPACT FORM."  19 STAT. 377, 43 U.S.C. SEC. 321. 

FN20  WHILE THE FINAL APPROVAL OF THE ENGINEERING REQUIREMENTS OF
THIS FEATURE RESTS WITH THE COMMISSION, THERE IS NO REASON WHY THE
COMMISSION AND THE STATE OF OREGON, WHICH ALSO DESIRES APPROPRIATE
REREGULATION OF THE FLOW OF THE STREAM, SHOULD NOT SEEK A MUTUALLY
SATISFACTORY SOLUTION.  IN FACT, THE APPLICANT FOR THE FEDERAL LICENSE
DID SUBMIT ITS PROPOSALS FOR REREGULATION TO THE STATE AUTHORITIES. 

FN21  THE OREGON FISH COMMISSION MADE A ROUGH ESTIMATE OF THE ANNUAL
RUNS OF SPRING CHINOOK AND SALMON PASSING THE PELTON SITE, EN ROUTE
UPSTREAM, AT 2,500 AND OF SUMMER STEELHEAD TROUT AT 5,000.  ON THE
BASIS OF THIS ESCAPEMENT PAST THE PROJECT, THE FISH COMMISSION
ESTIMATED THE ANNUAL VALUE OF THE DESCHUTES SALMON AND STEELHEAD
FISHERY ATTRIBUTABLE TO THE RIVER ABOVE THE PELTON SITE TO BE
$177,375.  10 F.P.C., AT 449, 92 P.U.R. (N.S.), AT 252. 

FN22  "  ... IN THE EVENT THAT ANY PERSON DESIRES TO CONSTRUCT A DAM
IN ANY OF THE STREAMS OF THIS STATE TO A HEIGHT THAT WILL MAKE A FISH
LADDER OR FISHWAY THEREOVER IMPRACTICABLE, IN THE OPINION OF THE FISH
COMMISSION, THEN SUCH PERSON MAY MAKE AN APPLICATION TO THE COMMISSION
FOR A PERMIT TO CONSTRUCT SUCH DAM, AND THE COMMISSION IS HEREBY
AUTHORIZED TO GRANT SUCH PERMIT IN ITS DISCRETION, UPON THE CONDITION
THAT THE PERSON SO APPLYING FOR SUCH PERMIT SHALL CONVEY TO THE STATE
OF OREGON A SITE OF THE SIZE AND DIMENSIONS SATISFACTORY TO THE
COMMISSION, AT SUCH PLACE AS MAY BE SELECTED BY THE COMMISSION, AND
ERECT THEREON A HATCHERY AND HATCHERY RESIDENCE, ACCORDING TO PLANS AND
SPECIFICATIONS TO BE FURNISHED BY THE COMMISSION, AND ENTER INTO AN
AGREEMENT WITH THE COMMISSION, SECURED BY A GOOD AND SUFFICIENT BOND,
TO FURNISH ALL WATER AND LIGHT, WITHOUT EXPENSE, TO OPERATE SAID
PROPOSED HATCHERY; AND NO PERMIT FOR THE CONSTRUCTION OF ANY SUCH DAM
SHALL BE GIVEN BY THE COMMISSION UNTIL THE PERSON APPLYING FOR SUCH
PERMIT SHALL HAVE ACTUALLY CONVEYED SAID LAND TO THE STATE AND ERECTED
SAID HATCHERY AND HATCHERY RESIDENCE IN ACCORDANCE WITH THE SAID PLANS
AND SPECIFICATIONS  ...  ."  ORE.  COMP. LAWS, 1940, SEC. 83-316. 

FN23  THE FEDERAL POWER COMMISSION HERE FOUND THAT: 

"(29)  THERE IS NOTHING NOVEL, UNUSUAL OR OUT OF THE ORDINARY WITH
RESPECT TO THE FISHERY CONSERVATION FACILITIES PROPOSED BY APPLICANT. 

"(30)  THE APPLICANT PROPOSES TO OPERATE OR ARRANGE FOR THE OPERATION
OF THE FISH CONSERVATION FACILITIES IN ACCORDANCE WITH APPROVED
METHODS. 

"(31)  CONSTRUCTION, OR OPERATION AND MAINTENANCE OF THE PELTON
PROJECT WILL NOT BE DETRIMENTAL TO THE FISHERY RESOURCES BELOW THE
REREGULATING DAM. 

"(32)  THERE IS NO SUBSTANTIAL EVIDENCE IN THE RECORD TO SHOW THAT
THE FISHERY FACILITIES PROPOSED BY THE APPLICANT IN ACCORDANCE WITH THE
PLANS PREPARED BY THE FISH COMMISSION OF OREGON WILL NOT MAINTAIN
EXISTING RUNS, AND THERE IS A POSSIBILITY THAT THE RUN CAN BE
INCREASED."  10 F.P.C., AT 455. 

FN24  IN ADDITION TO ITS APPLICATION TO THE FEDERAL POWER COMMISSION,
THE PORTLAND GENERAL ELECTRIC COMPANY ALSO SOUGHT APPROVAL OF THE
PELTON PROJECT BY THE OREGON HYDROELECTRIC COMMISSION.  WHILE WE HOLD
THAT SUCH APPROVAL IS NOT NECESSARY, THERE IS NO REASON WHY THE COMPANY
SHOULD NOT THUS SEEK STATE AS WELL AS FEDERAL APPROVAL OF THE PROJECT. 
IN ITS APPLICATION FOR THE FEDERAL POWER COMMISSION LICENSE, THE
COMPANY REFERRED TO THESE SIMULTANEOUS STATE PROCEEDINGS, WHICH DID NOT
REACH A CONCLUSION UNTIL SHORTLY BEFORE THE GRANTING OF THE FEDERAL
LICENSE.  THE LICENSE FROM THE HYDROELECTRIC COMMISSION WAS DENIED
BECAUSE OF THE APPLICANT'S FAILURE TO SECURE THE PERMIT FROM THE FISH
COMMISSION OF OREGON WHICH IT HAD SOUGHT. 

THE PERTINENT OREGON PROVISIONS ARE AS FOLLOWS: 

"FROM AND AFTER THE TAKING EFFECT OF THIS ACT, NO WATER-POWER PROJECT
INVOLVING THE USE OF THE WATERS OF ANY OF THE LAKES, RIVERS, STREAMS OR
OTHER BODIES OF WATER WITHIN THE STATE OF OREGON, INCLUDING WATERS OVER
WHICH THIS STATE HAS CONCURRENT JURISDICTION, FOR THE GENERATION OF
ELECTRICITY, SHALL BE BEGUN OR CONSTRUCTED EXCEPT IN CONFORMITY WITH
THE PROVISIONS HEREOF. 

     *  *         *         *         * 

"THE OREGON HYDROELECTRIC COMMISSION SHALL HAVE POWER:  ...  . 

"(B)  TO ISSUE LICENSES, AS HEREINAFTER PROVIDED, TO CITIZENS OF THE
UNITED STATES, ASSOCIATIONS OF CITIZENS, PRIVATE CORPORATIONS ORGANIZED
UNDER THE LAWS OF THE UNITED STATES OR ANY STATE THEREOF, TO
APPROPRIATE, INITIATE, PERFECT, ACQUIRE AND HOLD THE RIGHT TO THE USE
OF THE WATERS WITHIN THE STATE, INCLUDING THE WATERS OVER WHICH THE
STATE HAS CONCURRENT JURISDICTION, AND TO CONSTRUCT, OPERATE AND
MAINTAIN DAMS, RESERVOIRS, POWER HOUSES, CONDUITS, TRANSMISSION LINES,
AND ALL OTHER WORKS AND STRUCTURES NECESSARY OR CONVENIENT FOR THE USE
OF SUCH WATERS IN THE GENERATION AND UTILIZATION OF ELECTRICITY." 
ORE.  COMP. LAWS, 1940, SECS.  119-103, 119-106. 

SEE ALSO, "THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO ANY
WATERPOWER PROJECT OR DEVELOPMENT CONSTRUCTED BY THE GOVERNMENT OF THE
UNITED STATES."  ID., SEC. 119-101. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I WOULD NOT SUPPOSE THE UNITED STATES COULD ERECT A DAM ON THIS
NONNAVIGABLE RIVER WITHOUT OBTAINING ITS WATER RIGHTS IN ACCORDANCE
WITH STATE LAW.  IF I AM RIGHT IN THAT ASSUMPTION, THEN THIS DAM CANNOT
BE BUILT WITHOUT SATISFYING OREGON'S WATER-RIGHTS LAW.  FOR THE FEDERAL
LICENSEE WHO WILL BUILD THIS DAM ACQUIRES ALL ITS RIGHTS FROM THE
UNITED STATES.  AND THE UNITED STATES CANNOT GIVE WHAT IT DOES NOT
HAVE.  (FN1) 

THE ARGUMENT PRESSED ON US BY THE UNITED STATES IS AKIN TO THE ONE
URGED IN NEBRASKA V. WYOMING, 325 U.S. 589, 611 ET SEQ. IN THAT CASE,
THE UNITED STATES STRUGGLED TO BE RID OF THE RULE OF LAW THAT MADE ITS
WATER RIGHTS ON NONNAVIGABLE STREAMS OF THE WEST DEPENDENT ON STATE
LAW.  IT CLAIMED THAT IT OWNED ALL THE UNAPPROPRIATED WATER IN THE
BASIN OF THE NORTH PLATTE RIVER.  THE ARGUMENT WAS MADE NOT ONLY UNDER
THE RECLAMATION ACT OF 1902, 32 STAT. 388, BUT ALSO UNDER THE DESERT
LAND ACT OF 1877, 19 STAT. 377, THE ACT INVOLVED HERE.  WE RESERVED
DECISION AS TO WHETHER UNDER SOME CIRCUMSTANCES THE UNITED STATES MIGHT
BE THE OWNER OF UNAPPROPRIATED WATER RIGHTS.  BUT WE HELD THAT UNDER
THOSE ACTS THE UNITED STATES TOOK ITS WATER RIGHTS LIKE OTHER
LANDOWNERS, VIZ., PURSUANT TO STATE LAW GOVERNING APPROPRIATION. 

UNLESS WE ARE TO DEPART FROM THAT RULING, WE MUST ACCEPT OREGON'S
CLAIM HERE. 

OREGON'S POSITION HAS FOR ITS SUPPORT TWO OTHER DECISIONS OF THIS
COURT, BOTH CONSTRUING THE DESERT LAND ACT.  THE FIRST OF THESE IS
CALIFORNIA OREGON POWER CO. V. CEMENT CO., 295 U.S. 142, WHICH
CONSTRUED THE PROVISION OF THE DESERT LAND ACT, CRUCIAL HERE, WHICH
READS: 

"ALL SURPLUS WATER OVER AND ABOVE SUCH ACTUAL APPROPRIATION AND USE,
TOGETHER WITH THE WATER OF ALL LAKES, RIVERS AND OTHER SOURCES OF WATER
SUPPLY UPON THE PUBLIC LANDS AND NOT NAVIGABLE, SHALL REMAIN AND BE
HELD FREE FOR THE APPROPRIATION AND USE OF THE PUBLIC FOR IRRIGATION,
MINING AND MANUFACTURING PURPOSES SUBJECT TO EXISTING RIGHTS." 

THE COURT INTERPRETED THAT PROVISION AS FOLLOWS: 

"THE FAIR CONSTRUCTION OF THE PROVISION NOW UNDER REVIEW IS THAT
CONGRESS INTENDED TO ESTABLISH THE RULE THAT FOR THE FUTURE THE LAND
SHOULD BE PATENTED SEPARATELY; AND THAT ALL NON-NAVIGABLE WATERS
THEREON SHOULD BE RESERVED FOR THE USE OF THE PUBLIC UNDER THE LAWS OF
THE STATES AND TERRITORIES NAMED."  295 U.S. 142, 162. 

THAT CASE, TO BE SURE, INVOLVED A CONTEST BETWEEN PRIVATE OWNERS. 
BUT THE PRINCIPLE ANNOUNCED WAS SHORTLY APPLIED TO THE UNITED STATES AS
A PROPERTY OWNER ON A NONNAVIGABLE STREAM.  (FN2)  IN ICKES V. FOX, 300
U.S. 82, THE COURT HELD THAT BY THE DESERT LAND ACT, "IF NOT BEFORE,
CONGRESS HAD SEVERED THE LAND AND WATERS CONSTITUTING THE PUBLIC DOMAIN
AND ESTABLISHED THE RULE THAT FOR THE FUTURE THE LANDS SHOULD BE
PATENTED SEPARATELY.  ACQUISITION OF THE GOVERNMENT TITLE TO A PARCEL
OF LAND WAS NOT TO CARRY WITH IT A WATER-RIGHT; BUT ALL NON-NAVIGABLE
WATERS WERE RESERVED FOR THE USE OF THE PUBLIC UNDER THE LAWS OF THE
VARIOUS ARID-LAND STATES."  ID., AT 95. 

THE FOX CASE INVOLVED WATER RIGHTS OF FARMERS UNDER A FEDERAL
IRRIGATION PROJECT, THE CLAIM BEING THAT THE UNITED STATES, OWNER OF
THE IRRIGATION SYSTEM, OWNED THE WATER RIGHTS.  THE COURT REJECTED THAT
CLAIM AND LOOKED TO STATE LAW TO DETERMINE WHO HAD THE WATER RIGHTS;
AND FINDING THAT THE FARMERS OWNED THEM, THE COURT HELD THAT THE UNITED
STATES WAS NOT AN INDISPENSABLE PARTY IN LITIGATION CONCERNING THEM. 

THOSE CASES SHOULD CONTROL HERE.  THE DESERT LAND ACT APPLIES TO
"PUBLIC LANDS"; AND THE FEDERAL POWER ACT, 41 STAT. 1063, AS AMENDED,
16 U.S.C. SEC. 791A ET SEQ., GRANTS THE COMMISSION AUTHORITY TO ISSUE
LICENSES FOR POWER DEVELOPMENT "UPON ANY PART OF THE PUBLIC LANDS AND
RESERVATIONS OF THE UNITED STATES."  SEC. 4(E).  THE DEFINITION OF
THOSE TERMS IN THE ACT SAYS NOTHING ABOUT WATER RIGHTS.  (FN3)  AND, AS
I HAVE POINTED OUT, IT HAS BEEN THE LONG-TERM POLICY OF CONGRESS TO
SEPARATE WESTERN LAND FROM WATER RIGHTS. 

THE FINAL RESORT OF THE COMMISSION IS TO THE ACT OF JUNE 25, 1910, 36
STAT. 847, PROVIDING: 

"THAT THE PRESIDENT MAY, AT ANY TIME IN HIS DISCRETION, TEMPORARILY
WITHDRAW FROM SETTLEMENT, LOCATION, SALE, OR ENTRY ANY OF THE PUBLIC
LANDS OF THE UNITED STATES INCLUDING THE DISTRICT OF ALASKA AND RESERVE
THE SAME FOR WATER-POWER SITES, IRRIGATION, CLASSIFICATION OF LANDS, OR
OTHER PUBLIC PURPOSES TO BE SPECIFIED IN THE ORDERS OF WITHDRAWALS, AND
SUCH WITHDRAWALS OR RESERVATIONS SHALL REMAIN IN FORCE UNTIL REVOKED BY
HIM OR BY AN ACT OF CONGRESS." 

IT WAS UNDER THIS ACT THAT SOME OF THE LANDS HERE INVOLVED WERE
RESERVED FOR A POWER SITE.  BUT THE ACT OF JUNE 25, 1910, BY ITS VERY
TERMS, DID NO MORE THAN WITHDRAW THESE PUBLIC LANDS "FROM SETTLEMENT,
LOCATION, SALE, OR ENTRY."  THE ACT DID NOT PURPORT TO TOUCH OR CHANGE
IN ANY WAY THE PROVISION OF THE DESERT LAND ACT THAT PERTAINS TO WATER
RIGHTS.  IF THE WORDS OF THE 1910 ACT ARE TO CONTROL, WATER RIGHTS
REMAINED UNDISTURBED.  THE LANDS REMAINED "PUBLIC LANDS," SAVE ONLY
THAT SETTLERS COULD NOT LOCATE ON THEM.  I ASSUME THAT THE UNITED
STATES COULD HAVE RECALLED ITS GRANT OF JURISDICTION OVER WATER RIGHTS,
SAVING, OF COURSE, ALL VESTED RIGHTS.  BUT THE UNITED STATES HAS NOT
EXPRESSLY DONE SO; AND WE SHOULD NOT CONSTRUE ANY LAW AS ACHIEVING THAT
RESULT UNLESS THE PURPOSE OF CONGRESS IS CLEAR. 

THE REASON IS THAT THE RULE ADOPTED BY THE COURT PROFOUNDLY AFFECTS
THE ECONOMY OF MANY STATES, TEN OF WHOM ARE HERE IN PROTEST.  IN THE
WEST, THE UNITED STATES OWNS A VAST AMOUNT OF LAND - IN SOME STATES,
OVER 50 PERCENT OF ALL THE LAND.  IF BY MERE EXECUTIVE ACTION THE
FEDERAL LANDS MAY BE RESERVED AND ALL THE WATER RIGHTS APPURTENANT TO
THEM RETURNED TO THE UNITED STATES, VAST DISLOCATIONS IN THE ECONOMIES
OF THE WESTERN STATES MAY FOLLOW.  FOR THE RIGHT OF WITHDRAWAL OF
PUBLIC LANDS GRANTED BY THE 1910 ACT IS NOT ONLY FOR "WATER-POWER
SITES" BUT FOR A HOST OF PUBLIC PROJECTS - "IRRIGATION, CLASSIFICATIONS
OF LANDS, OR OTHER PUBLIC PURPOSES."  FEDERAL OFFICIALS HAVE LONG
SOUGHT THAT AUTHORITY.  IT HAS BEEN CONSISTENTLY DENIED THEM.  WE
SHOULD DENY IT AGAIN.  CERTAINLY THE UNITED STATES COULD NOT
APPROPRIATE THE WATER RIGHTS IN DEFIANCE OF OREGON LAW, IF IT BUILT THE
DAM.  IT SHOULD HAVE NO GREATER AUTHORITY WHEN IT MAKES A GRANT TO A
PRIVATE POWER GROUP.    FN1  THE DESCHUTES RIVER IS NONNAVIGABLE AND
PART OF THE COLUMBIA RIVER BASIN.  IT IS, INDEED, A DIRECT TRIBUTARY OF
THE COLUMBIA.  CONTROL OF THIS TRIBUTARY MIGHT BE IMPORTANT TO AN
EFFECTIVE FLOOD-CONTROL PROGRAM FOR THE COLUMBIA.  IF SO, THIS DAM
COULD FIND CONSTITUTIONAL SANCTION UNDER THE COMMERCE CLAUSE.  SEE
OKLAHOMA V. ATKINSON CO., 313 U.S. 508, 525.  THAT CONSTITUTIONAL POWER
OVER THE DESCHUTES WOULD NOT BE LOST THROUGH NONUSE OR THROUGH
INTERVENING LEGISLATION.  IN CASE THE CONSTITUTIONAL POWER WERE
EXERCISED, PRIVATE RIGHTS WOULD GIVE WAY.  OREGON COULD DEMAND
COMPENSATION FOR THE LOSS OF ANY WATER-POWER RIGHTS IT POSSESSED.  SEE
FEDERAL POWER COMMISSION V. NIAGARA MOHAWK POWER CORP., 347 U.S. 239,
254-255.  BUT OREGON COULD NOT ASSERT ITS REGULATORY POWERS TO DEFEAT
THE FEDERAL PROGRAM, FOR THE SUPREMACY CLAUSE WOULD PREVENT HER. 

NO EFFORT HAS BEEN MADE TO BRING THIS CASE UNDER THE COMMERCE
CLAUSE.  THE FINDINGS ARE INADEQUATE FOR THAT PURPOSE.  THE CASE TURNS
ON THE AUTHORITY OF THE UNITED STATES AS A PROPRIETOR. 

FN2  IF THIS WERE A NAVIGABLE STREAM, THE AUTHORITY OF THE UNITED
STATES IN THE WATER POWER WOULD BE COMPLETE WITHOUT REFERENCE TO STATE
LAW.  UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53; UNITED STATES
V. CHICAGO, M., ST. P.&P.R. CO., 312 U.S. 592; UNITED STATES V.
COMMODORE PARK, INC., 324 U.S. 386.  IN THAT CASE, THE ACT AUTHORIZES
THE COMMISSION TO PROCEED, IRRESPECTIVE OF THE APPROVAL OF THE STATE
WHERE THE DAM IS LOCATED.  FIRST IOWA COOP.  V. POWER COMMISSION, 328
U.S. 152.   BUT THE PRESENT PROJECT, DEALING AS IT DOES WITH
NONNAVIGABLE WATERS, IS DEPENDENT ON THE STATE LAW OF WATER RIGHTS FOR
ITS EXECUTION.  IN THE FIRST IOWA COOP.  CASE, WE RECOGNIZED THE ROOM
LEFT FOR THAT DEGREE OF CONTROL BY THE STATES IN THIS SITUATION: 

"IN THE FEDERAL POWER ACT THERE IS A SEPARATION OF THOSE SUBJECTS
WHICH REMAIN UNDER THE JURISDICTION OF THE STATES FROM THOSE SUBJECTS
WHICH THE CONSTITUTION DELEGATES TO THE UNITED STATES AND OVER WHICH
CONGRESS VESTS THE FEDERAL POWER COMMISSION WITH AUTHORITY TO ACT.  TO
THE EXTENT OF THIS SEPARATION, THE ACT ESTABLISHES A DUAL SYSTEM OF
CONTROL.  THE DUALITY OF CONTROL CONSISTS MERELY OF THE DIVISION OF THE
COMMON ENTERPRISE BETWEEN TWO COOPERATING AGENCIES OF GOVERNMENT, EACH
WITH FINAL AUTHORITY IN ITS OWN JURISDICTION.  THE DUALITY DOES NOT
REQUIRE TWO AGENCIES TO SHARE IN THE FINAL DECISION OF THE SAME
ISSUE."  ID., AT 167-168. 

FN3  THOSE TERMS ARE DEFINED AS FOLLOWS IN SEC. 3: 

"(1)  'PUBLIC LANDS' MEANS SUCH LANDS AND INTEREST IN LANDS OWNED BY
THE UNITED STATES AS ARE SUBJECT TO PRIVATE APPROPRIATION AND DISPOSAL
UNDER PUBLIC LAND LAWS.  IT SHALL NOT INCLUDE 'RESERVATIONS', AS
HEREINAFTER DEFINED: 

"(2)  'RESERVATIONS' MEANS NATIONAL FORESTS, TRIBAL LANDS EMBRACED
WITHIN INDIAN RESERVATIONS, MILITARY RESERVATIONS, AND OTHER LANDS AND
INTERESTS IN LANDS OWNED BY THE UNITED STATES, AND WITHDRAWN, RESERVED,
OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC
LAND LAWS; ALSO LANDS AND INTERESTS IN LANDS ACQUIRED AND HELD FOR ANY
PUBLIC PURPOSES; BUT SHALL NOT INCLUDE NATIONAL MONUMENTS OR NATIONAL
PARKS; ...  ." 
..END :











ELLIS V. DIXON 349 U.S. 458 


NO. 20.  ARGUED OCTOBER 18, 1954 - REARGUED APRIL 20, 1955 - DECIDED
JUNE 6, 1955 - WRIT OF CERTIORARI DISMISSED. 


THIS COURT GRANTED CERTIORARI TO CONSIDER PETITIONER'S CLAIM THAT HIS
ORGANIZATION HAD BEEN DENIED FEDERAL CONSTITUTIONAL RIGHTS AND THAT THE
NEW YORK STATE COURTS HAD RULED ADVERSELY ON THIS CLAIM IN SUSTAINING
DISMISSAL OF HIS SUIT.  UPON REARGUMENT, IT APPEARED THAT PETITIONER'S
PLEADINGS HAD FAILED TO LAY A SUFFICIENT FOUNDATION FOR A DECISION ON A
CLAIM OF DENIAL OF FEDERAL CONSTITUTIONAL RIGHTS AND THAT DISMISSAL OF
HIS SUIT BY THE NEW YORK COURTS MIGHT HAVE RESTED UPON THIS ADEQUATE
NONFEDERAL GROUND.  HELD:  THE WRIT OF CERTIORARI IS DISMISSED AS
IMPROVIDENTLY GRANTED.  PP. 459-464. 

(A)  IT WILL NOT BE ASSUMED ON THIS RECORD THAT, IN DENYING, WITHOUT
OPINION, PETITIONER'S APPLICATION FOR LEAVE TO APPEAL, THE NEW YORK
COURT OF APPEALS DESIRED TO THWART A REVIEW OF PETITIONER'S CLAIM OF
DENIAL OF FEDERAL CONSTITUTIONAL RIGHTS.  PP. 462-463. 

(B)  IF THE INSUFFICIENCY OF PETITIONER'S PLEADING TO ASSERT A
FEDERAL RIGHT WAS THE REASON FOR THE COURT OF APPEALS' DENIAL OF LEAVE
TO APPEAL, THAT DETERMINATION WOULD NOT CONCLUDE THIS COURT.  P. 463. 

(C)  THE RECORD IN THIS CASE IS INADEQUATE AS A BASIS FOR A DECISION
BY THIS COURT ON THE CONSTITUTIONAL ISSUES SOUGHT TO BE PRESENTED.  PP.
462-464. 

(D)  IN THE CIRCUMSTANCES OF THIS CASE, DISMISSAL OF THE WRIT OF
CERTIORARI IS BASED ON LACK OF JURISDICTION, SINCE THE COURT OF
APPEALS' DENIAL OF LEAVE TO APPEAL MIGHT HAVE RESTED ON AN ADEQUATE
NONFEDERAL GROUND.  P. 464. 

ELLIS V. DIXON ET AL., MEMBERS OF THE BOARD OF EDUCATION OF THE CITY OF
YONKERS. 

CERTIORARI TO THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW
YORK, SECOND DEPARTMENT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

UPON REARGUMENT THE COURT HAS COME TO THE CONCLUSION THAT THE WRIT OF
CERTIORARI (FN1) SHOULD BE DISMISSED AS IMPROVIDENTLY GRANTED. 

THE NEW YORK COURT OF APPEALS DENIED PETITIONER'S MOTION FOR LEAVE TO
APPEAL WITHOUT STATING ANY GROUND FOR ITS DECISION.  306 N.Y. 981.  IN
THESE CIRCUMSTANCES WE MUST ASCERTAIN WHETHER THAT COURT'S DECISION
"MIGHT" HAVE RESTED ON A NONFEDERAL GROUND, FOR IF IT DID WE MUST
DECLINE TO TAKE JURISDICTION.  STEMBRIDGE V. GEORGIA, 343 U.S. 541, 547
(1952); SEE ALSO LYNCH V. NEW YORK EX REL. PIERSON, 293 U.S. 52, 54
(1934).  WE APPROACH THE MATTER FIRST BY CONSIDERING WHAT THE
PETITIONER HAS ALLEGED AS A BASIS FOR THE CONSTITUTIONAL ISSUES WHICH
HE ASKS US TO REVIEW ON THE MERITS. 

THE CONSTITUTIONAL QUESTIONS INVOLVED ARE WHETHER RESPONDENTS,
MEMBERS OF THE YONKERS BOARD OF EDUCATION IN REFUSING THE USE OF ANY OF
THE YONKERS PUBLIC SCHOOL BUILDINGS TO THE YONKERS COMMITTEE FOR PEACE
FOR A FORUM ON "PEACE AND WAR," DISCRIMINATED AGAINST THE COMMITTEE, SO
AS TO DEPRIVE THE COMMITTEE'S MEMBERS OF THEIR RIGHTS OF FREEDOM OF
SPEECH, ASSEMBLY, AND EQUAL PROTECTION OF THE LAWS, UNDER THE FIRST AND
FOURTEENTH AMENDMENTS. 

PETITIONER CONCEDES THAT A STATE MAY WITHHOLD ITS SCHOOL FACILITIES
ALTOGETHER FROM USE BY NONSCHOLASTIC GROUPS.  IT IS IMPLICIT IN THIS
CONCESSION THAT PETITIONER ALSO RECOGNIZES THAT A STATE MAY MAKE
REASONABLE CLASSIFICATIONS IN DETERMINING THE EXTENT TO WHICH ITS
SCHOOLS SHALL BE AVAILABLE FOR NONSCHOLASTIC USES, AND PETITIONER HAS
NOT ATTACKED ON THIS SCORE THE CLASSIFICATIONS MADE BY THE APPLICABLE
NEW YORK STATUTE AND RESPONDENTS' REGULATIONS.  (FN2)  THE QUESTION OF
WHETHER THE REGULATIONS ARE UNCONSTITUTIONALLY VAGUE WAS NOT RAISED
BELOW, AND HENCE IS NOT OPEN HERE.  THEREFORE THE BURDEN OF
PETITIONER'S GRIEVANCE WOULD SEEM TO BE THAT RESPONDENTS HAVE APPLIED
THE STATUTE AND REGULATIONS TO SIMILAR GROUPS DIFFERENTLY THAN THEY
HAVE TO THE COMMITTEE FOR PEACE.   AND YET PETITIONER HAS FAILED TO
ALLEGE IN HIS PLEADING, WHICH UPON RESPONDENTS' MOTION WAS DISMISSED
PRIOR TO ANSWER, THAT OTHER ORGANIZATIONS OF A SIMILAR CHARACTER TO THE
COMMITTEE FOR PEACE HAVE BEEN ALLOWED USE OF THE YONKERS SCHOOLS.  THE
ALLEGATIONS OF THAT PLEADING SIMPLY ARE THAT UNNAMED AND UNDESCRIBED
"ORGANIZATIONS" HAVE BEEN ALLOWED TO USE YONKERS SCHOOL BUILDINGS IN
THE PAST "FOR THE PURPOSE OF PUBLIC ASSEMBLY AND DISCUSSION."  (FN3)
WHETHER SUCH ORGANIZATIONS ARE IN ANY WAY COMPARABLE TO THE COMMITTEE
FOR PEACE NOWHERE APPEARS IN THE PLEADING.  (FN4)  AND WHAT THE
PRACTICE OF THE BOARD OF EDUCATION HAS BEEN IN PERMITTING THE
NONSCHOLASTIC USE OF SCHOOL BUILDINGS IS NOT SHOWN. 

WHAT HAS BEEN ALLEGED IS ENTIRELY TOO AMORPHOUS TO PERMIT
ADJUDICATION OF THE CONSTITUTIONAL ISSUES ASSERTED.  AND WE THINK THE
MOST REASONABLE INFERENCE FROM THIS RECORD IS THAT THE COURT OF
APPEALS' DENIAL OF PETITIONER'S MOTION FOR LEAVE TO APPEAL WENT ON THAT
GROUND, RATHER THAN ON THE GROUND, SUGGESTED ON BEHALF OF RESPONDENTS,
THAT IN PROCEEDING BY WAY OF LEAVE TO APPEAL RATHER THAN BY AN APPEAL
AS OF RIGHT THE PETITIONER HAD FOLLOWED THE WRONG APPELLATE ROUTE. 
(FN5)  THIS CONCLUSION IS FORTIFIED BY TWO ADDITIONAL CIRCUMSTANCES. 
IF THE COURT OF APPEALS HAD CONSIDERED THE CONSTITUTIONAL ISSUES
ADEQUATELY PRESENTED, IT PRESUMABLY WOULD HAVE SAVED PETITIONER'S RIGHT
TO APPEAL AS OF RIGHT BY PUTTING ITS DENIAL OF LEAVE TO APPEAL ON THE
GROUND THAT AN APPEAL LAY AS OF RIGHT.  SEE N.Y. CIV. PRAC.  ACT, SEC.
592(5)(A).  (FN6)  OTHERWISE WE WOULD HAVE TO ASSUME THAT THE COURT OF
APPEALS DESIRED TO THWART REVIEW OF THE CONSTITUTIONAL QUESTIONS, AN
ASSUMPTION WHOLLY UNJUSTIFIED BY THIS RECORD.  FURTHERMORE, THE
DECISION OF NEW YORK'S INTERMEDIATE APPELLATE COURT AGAINST THE
PETITIONER WAS BECAUSE OF THE INSUFFICIENCY OF HIS PLEADING.  (FN7) 

IF THE INSUFFICIENCY OF PETITIONER'S PLEADING WAS THE REASON FOR THE
COURT OF APPEALS' DENIAL OF LEAVE TO APPEAL, THE PAST DECISIONS OF THIS
COURT STILL LEAVE ROOM FOR ARGUMENT AS TO WHETHER WE SHOULD DISMISS FOR
LACK OF JURISDICTION BECAUSE THE STATE COURT'S DECISION RESTED ON AN
ADEQUATE NONFEDERAL GROUND.  IT IS ESTABLISHED LAW THAT THIS COURT IS
NOT FINALLY CONCLUDED BY THE STATE COURT'S DETERMINATION AS TO THE
SUFFICIENCY OF PLEADINGS ASSERTING A FEDERAL RIGHT.  SOME OF THE CASES
SEEM TO SUGGEST THAT THE SCOPE OF OUR REVIEW IS LIMITED TO DETERMINING
WHETHER THE STATE COURT HAS BY-PASSED THE FEDERAL RIGHT UNDER FORMS OF
LOCAL PROCEDURE, FROM WHICH IT WOULD SEEM TO FOLLOW THAT IF WE FIND
THAT SUCH IS NOT THE CASE WE SHOULD DISMISS FOR WANT OF JURISDICTION. 
CF. AMERICAN RAILWAY EXPRESS CO. V. LEVEE, 263 U.S. 19, 21 (1923);
DAVIS V. WECHSLER, 263 U.S. 22, 24 (1923).  THERE CAN BE NO SUGGESTION
OF BY-PASSING IN THIS INSTANCE.  OTHER CASES, HOWEVER, INDICATE THAT WE
SHOULD ACCEPT JURISDICTION AND DECIDE THE SUFFICIENCY OF THE PLEADINGS
DE NOVO FOR OURSELVES.  SEE BOYD V. NEBRASKA EX REL. THAYER, 143 U.S.
135, 180 (1892); CARTER V. TEXAS, 177 U.S. 442, 447 (1900); FIRST
NATIONAL BANK V. ANDERSON, 269 U.S. 341, 346 (1926); BROWN V. WESTERN
RAILWAY OF ALABAMA, 338 U.S. 294, 296 (1949).  IN THE PRESENT CASE, THE
ROUTE WHICH WE TRAVEL WOULD MAKE NO DIFFERENCE IN THE RESULT.  EVEN IF
WE WERE TO LOOK AT THE MATTER OURSELVES DE NOVO, WE COULD NOT ON THIS
VAGUE AND EMPTY RECORD DECIDE THE CONSTITUTIONAL ISSUES SOUGHT TO BE
PRESENTED.  THIS COURT HAS OFTEN REFUSED TO DECIDE CONSTITUTIONAL
QUESTIONS ON AN INADEQUATE RECORD.  SEE, E.G., INTERNATIONAL
BROTHERHOOD OF TEAMSTERS V. DENVER MILK PRODUCERS, INC., 334 U.S. 809
(1948); RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 575-585 (1947);
AIRCRAFT & DIESEL EQUIPMENT CORP. V. HIRSCH, 331 U.S. 752, 762-763
(1947); ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450
(1945).  IN THE CIRCUMSTANCES OF THIS CASE, WE PREFER TO REST OUR
DECISION ON THE GROUND THAT WE LACK JURISDICTION.  FOR IF WE COULD NOT
OURSELVES DECIDE ON THIS RECORD THE CONSTITUTIONAL ISSUES TENDERED, WE
CONSIDER THAT BY THE SAME TOKEN THE NEW YORK COURT OF APPEALS WAS
ENTIRELY JUSTIFIED IN REFUSING TO PASS ON THEM, AND THAT WE SHOULD
THEREFORE REGARD ITS DENIAL OF LEAVE TO APPEAL AS RESTING ON AN
ADEQUATE NONFEDERAL GROUND.  SEE VANDALIA R. CO. V. INDIANA EX REL.
SOUTH BEND, 207 U.S. 359 (1907); BRINKMEIER V. MISSOURI P.R. CO., 224
U.S. 268 (1912). 

WE CONCLUDE THAT THE WRIT OF CERTIORARI MUST BE DISMISSED AS
IMPROVIDENTLY GRANTED.  DISMISSED. 

FN1  CERTIORARI WAS GRANTED.  347 U.S. 926.  THE CASE WAS SET FOR
REARGUMENT BOTH ON THE MERITS AND AS TO THE JURISDICTION OF THIS
COURT.  348 U.S. 881. 

FN2  THE STATE STATUTE, INSOFAR AS APPLICABLE HERE, ALLOWS EACH BOARD
OF EDUCATION TO ADOPT REASONABLE REGULATIONS FOR THE USE OF SCHOOL
PROPERTY, WHEN NOT IN USE FOR SCHOOL PURPOSES, FOR ANY OF THE FOLLOWING
PURPOSES:  "FOR HOLDING SOCIAL, CIVIC AND RECREATIONAL MEETINGS AND
ENTERTAINMENTS, AND OTHER USES PERTAINING TO THE WELFARE OF THE
COMMUNITY  ...  ," "FOR MEETINGS, ENTERTAINMENTS AND OCCASIONS WHERE
ADMISSION FEES ARE CHARGED, WHEN THE PROCEEDS THEREOF ARE TO BE
EXPENDED FOR AN EDUCATIONAL OR CHARITABLE PURPOSE  ...  " AND "FOR
CIVIC FORUMS AND COMMUNITY CENTERS  ...  ."  N.Y. EDUCATION LAW, SEC.
414(3), (4), (6).  IT IS NOT CLEAR WHETHER THIS LAST USE IS RESTRICTED
BY SUBSEQUENT LANGUAGE IN THE SECTION SO AS TO PERMIT ONLY SUCH FORUMS
AS ARE ESTABLISHED BY THE BOARD OF EDUCATION. 

THE REGULATIONS ADOPTED BY RESPONDENTS DO NOT ENLARGE UPON THESE
CLASSIFICATIONS IN THE STATUTE. 

FN3  AFTER RECITING THE RESPONDENTS' REFUSAL TO PERMIT THE COMMITTEE
FOR PEACE TO USE ANY OF THE YONKERS SCHOOL BUILDINGS ON TWO OCCASIONS
IN 1952, THE PETITION GOES ON TO ALLEGE: 

"14.  THAT PURSUANT TO SECTION 414 OF THE EDUCATION LAW OF THE STATE
OF NEW YORK, THE RESPONDENTS, AND/OR THEIR PREDECESSORS, AS MEMBERS OF
THE BOARD OF EDUCATION OF THE CITY OF YONKERS, ADOPTED REGULATIONS FOR
THE USE OF THE SCHOOLHOUSES, GROUNDS OR OTHER PROPERTY WHEN NOT IN USE
FOR SCHOOL PURPOSES IN YONKERS, NEW YORK, WHEREBY ORGANIZATIONS AT ALL
TIMES HEREIN MENTIONED WERE AND ARE PERMITTED THE USE OF THE SCHOOL
BUILDINGS WHEN NOT IN USE. 

"15.  THAT AT ALL TIMES HEREIN MENTIONED AND AT ALL TIMES SINCE THE
ADOPTION OF THE AFORESAID REGULATIONS, THE SCHOOL BUILDINGS, GROUNDS
AND PROPERTY OF AND IN THE CITY OF YONKERS HAVE ON NUMEROUS OCCASIONS
(WHOSE NUMBER ARE BEST KNOWN TO RESPONDENTS AND AT SUCH NUMEROUS TIMES
AND OCCASIONS THAT THE PRACTICE IS AN ACCEPTED PRACTICE) BEEN PERMITTED
TO BE USED PURSUANT TO SECTION 414 OF THE EDUCATION LAW BY
ORGANIZATIONS FOR THE PURPOSE OF PUBLIC ASSEMBLY AND DISCUSSION. 

"16.  THAT AT NO TIME HEREIN MENTIONED DID THE RESPONDENTS INFORM
PETITIONER OF THE REASON FOR THE DENIAL OF HIS APPLICATION, NOR DID
THEY ASK PETITIONER OR HIS ORGANIZATION TO FULFILL ANY FURTHER
REQUIREMENTS OR CONDITIONS FOR PERMISSION TO USE BY THEM OF A SCHOOL
BUILDING IN YONKERS, NEW YORK, FOR PURPOSES OF PUBLIC ASSEMBLY OR
DISCUSSION. 

"17.  THAT BY REASON OF THE ACTION OF THE RESPONDENTS IN FAILING TO
GIVE A REASON FOR ITS ACTION WHEREAS PERMISSION IS FREELY GRANTED TO
OTHERS APPLYING, IT IS EVIDENT THAT THE RESPONDENTS ARE CONCEALING A
DESIGN TO DISCRIMINATE AGAINST PETITIONER AND HIS SAID ORGANIZATION,
FOR WHICH DISCRIMINATION THERE IS NO FOUNDATION IN LAW OR FACT, AND
THAT THE ACTS OF RESPONDENTS ARE ARBITRARY AND UNREASONABLE. 

"18.  THE ACTION OF RESPONDENTS VIOLATES THE RIGHT OF PETITIONER AND
THE CONSTITUENT MEMBERS OF HIS ORGANIZATION OF FREEDOM OF SPEECH AND
ASSEMBLY GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND DENIES
THEM THE EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE CONSTITUTION
OF THE UNITED STATES." 

FN4  IT MAY BE NOTED THAT IN AN AFFIDAVIT IN SUPPORT OF THE MOTION
FOR LEAVE TO APPEAL TO THE COURT OF APPEALS, PETITIONER'S ATTORNEY
SOUGHT TO REMEDY THIS VITAL DEFECT BY INCLUDING THE ASSERTION, "THAT
OTHER ORGANIZATIONS SIMILAR TO PETITIONER'S HAVE OBTAINED SIMILAR USE"
OF THE SCHOOLS FROM THE YONKERS BOARD OF EDUCATION.  BUT IT DOES NOT
APPEAR THAT PETITIONER EVER SOUGHT TO AMEND HIS PLEADING IN THESE
RESPECTS. 

FN5  NEW YORK HAS TWO METHODS OF APPEAL TO THE COURT OF APPEALS - AN
APPEAL AS OF RIGHT AND BY LEAVE TO APPEAL.  AN APPEAL AS OF RIGHT LIES,
INTER ALIA, WHERE THERE IS "DIRECTLY INVOLVED THE CONSTRUCTION OF THE
CONSTITUTION OF THE STATE OR OF THE UNITED STATES  ...  ."  N.Y.
CONST., ART. VI, SEC. 7(1); N.Y. CIV. PRAC.  ACT, SEC. 588(1)(A).  IN
ALL CASES IN WHICH AN APPEAL DOES NOT LIE AS OF RIGHT, APPEAL IS BY
LEAVE OF THE APPELLATE DIVISION OR THE COURT OF APPEALS.  N.Y.  CONST.,
ART. VI, SEC. 7(6); N.Y. CIV. PRAC.  ACT, SEC. 589.  HAD WRONG
APPELLATE PROCEDURE BEEN THE REASON FOR THE COURT OF APPEALS' DENIAL OF
LEAVE TO APPEAL, ITS DECISION WOULD HAVE RESTED ON AN ADEQUATE
NONFEDERAL GROUND, DEPRIVING THIS COURT OF JURISDICTION.  CF. PARKER V.
ILLINOIS, 333 U.S. 571 (1948); CENTRAL UNION TELEPHONE CO. V. CITY OF
EDWARDSVILLE, 269 U.S. 190 (1925). 

FN6  THIS SECTION PROVIDES THAT WHEN LEAVE TO APPEAL IS DENIED "UPON
THE GROUND THAT THE APPEAL WOULD LIE AS OF RIGHT," THE APPELLANT IS
AUTOMATICALLY ENTITLED TO AN ADDITIONAL 30 DAYS AFTER THE DENIAL TO
FILE AN APPEAL AS OF RIGHT.  THE COURT OF APPEALS HAS THUS STATED ITS
GROUND OF DENIAL IN MANY INSTANCES WHERE LEAVE TO APPEAL WAS DENIED
BECAUSE AN APPEAL LAY AS OF RIGHT.  SEE, E.G., IN RE ARBITRATION
BETWEEN E. MILIUS & CO. AND REGAL SHIRT CORP., 305 N.Y. 562, 111 N.E.2D
438 (1953); IN RE BRINN, 305 N.Y. 626, 111 N.E.2D 738 (1953); IN RE
WUTTKE, 305 N.Y. 694, 112 N.E.2D 777 (1953); IN RE HECHT, 305 N.Y. 800,
113 N.E.2D 553 (1953); AUTEN V. AUTEN, 306 N.Y. 752, 118 N.E.2D 110
(1954). 

FN7  IN AFFIRMING THE JUDGMENT OF THE COURT OF FIRST INSTANCE, THE
APPELLATE DIVISION OF THE SUPREME COURT, SECOND DEPARTMENT, STATED:
"THE PROCEEDING WAS PROPERLY BEFORE THE COURT.  HOWEVER, THE PETITION
DOES NOT ALLEGE FACTS WHICH ESTABLISH A CLEAR LEGAL RIGHT TO THE RELIEF
SOUGHT NOR WHICH ESTABLISH THAT RESPONDENTS FAILED TO PERFORM A DUTY
ENJOINED BY LAW."  281 APP. DIV. 987, 120 N.Y.S.2D 854. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR.
JUSTICE CLARK DISSENT, BELIEVING THAT THE ALLEGATIONS OF THE PETITION
ARE SUFFICIENT TO STATE A CASE OF DISCRIMINATION UNDER THE EQUAL
PROTECTION CLAUSE. 
..END :






















BROWN V. BOARD OF EDUCATION OF TOPEKA 349 U.S. 294 


NO. 1.  REARGUED ON THE QUESTION OF RELIEF APRIL 11-14, 1955 - OPINION
AND JUDGMENTS ANNOUNCED MAY 31, 1955 - 98 F. SUPP. 797, 103 F. SUPP.
920, 103 F. SUPP. 337 AND JUDGMENT IN NO. 4, REVERSED AND REMANDED - 91
A.2D 137, AFFIRMED AND REMANDED. 


1.  RACIAL DISCRIMINATION IN PUBLIC EDUCATION IS UNCONSTITUTIONAL, 347
U.S. 483, 497, AND ALL PROVISIONS OF FEDERAL, STATE OR LOCAL LAW
REQUIRING OR PERMITTING SUCH DISCRIMINATION MUST YIELD TO THIS
PRINCIPLE.  P. 298. 

2.  THE JUDGMENTS BELOW (EXCEPT THAT IN THE DELAWARE CASE) ARE
REVERSED AND THE CASES ARE REMANDED TO THE DISTRICT COURTS TO TAKE SUCH
PROCEEDINGS AND ENTER SUCH ORDERS AND DECREES CONSISTENT WITH THIS
OPINION AS ARE NECESSARY AND PROPER TO ADMIT THE PARTIES TO THESE CASES
TO PUBLIC SCHOOLS ON A RACIALLY NONDISCRIMINATORY BASIS WITH ALL
DELIBERATE SPEED.  P. 301. 

(A)  SCHOOL AUTHORITES HAVE THE PRIMARY RESPONSIBILITY FOR
ELUCIDATING, ASSESSING AND SOLVING THE VARIED LOCAL SCHOOL PROBLEMS
WHICH MAY REQUIRE SOLUTION IN FULLY IMPLEMENTING THE GOVERNING
CONSTITUTIONAL PRINCIPLES.  P. 299. 

(B)  COURTS WILL HAVE TO CONSIDER WHETHER THE ACTION OF SCHOOL
AUTHORITIES CONSTITUTES GOOD FAITH IMPLEMENTATION OF THE GOVERNING
CONSTITUTIONAL PRINCIPLES.  P. 299. 

(C)  BECAUSE OF THEIR PROXIMITY TO LOCAL CONDITIONS AND THE POSSIBLE
NEED FOR FURTHER HEARINGS, THE COURTS WHICH ORIGINALLY HEARD THESE
CASES CAN BEST PERFORM THIS JUDICIAL APPRAISAL.  P. 299. 

(D) IN FASHIONING AND EFFECTUATING THE DECREES, THE COURTS WILL BE
GUIDED BY EQUITABLE PRINCIPLES - CHARACTERIZED BY A PRACTICAL
FLEXIBILITY IN SHAPING REMEDIES AND A FACILITY FOR ADJUSTING AND
RECONCILING PUBLIC AND PRIVATE NEEDS.  P. 300. 

(E)  AT STAKE IS THE PERSONAL INTEREST OF THE PLAINTIFFS IN ADMISSION
TO PUBLIC SCHOOLS AS SOON AS PRACTICABLE ON A NONDISCRIMINATORY BASIS. 
P. 300. 

(F)  COURTS OF EQUITY MAY PROPERLY TAKE INTO ACCOUNT THE PUBLIC
INTEREST IN THE ELIMINATION IN A SYSTEMATIC AND EFFECTIVE MANNER OF A
VARIETY OF OBSTACLES IN MAKING THE TRANSITION TO SCHOOL SYSTEMS
OPERATED IN ACCORDANCE WITH THE CONSTITUTIONAL PRINCIPLES ENUNCIATED IN
347 U.S. 483, 497; BUT THE VITALITY OF THESE CONSTITUTIONAL PRINCIPLES
CANNOT BE ALLOWED TO YIELD SIMPLY BECAUSE OF DISAGREEMENT WITH THEM. 
P. 300. 

(G)  WHILE GIVING WEIGHT TO THESE PUBLIC AND PRIVATE CONSIDERATIONS,
THE COURTS WILL REQUIRE THAT THE DEFENDANTS MAKE A PROMPT AND
REASONABLE START TOWARD FULL COMPLIANCE WITH THE RULING OF THIS COURT. 
P. 300. 

(H)  ONCE SUCH A START HAS BEEN MADE, THE COURTS MAY FIND THAT
ADDITIONAL TIME IS NECESSARY TO CARRY OUT THE RULING IN AN EFFECTIVE
MANNER.  P. 300. 

(I)  THE BURDEN RESTS ON THE DEFENDANTS TO ESTABLISH THAT ADDITIONAL
TIME IS NECESSARY IN THE PUBLIC INTEREST AND IS CONSISTENT WITH GOOD
FAITH COMPLIANCE AT THE EARLIEST PRACTICABLE DATE.  P. 300. 

(J)  THE COURTS MAY CONSIDER PROBLEMS RELATED TO ADMINISTRATION,
ARISING FROM THE PHYSICAL CONDITION OF THE SCHOOL PLANT, THE SCHOOL
TRANSPORTATION SYSTEM, PERSONNEL, REVISION OF SCHOOL DISTRICTS AND
ATTENDANCE AREAS INTO COMPACT UNITS TO ACHIEVE A SYSTEM OF DETERMINING
ADMISSION TO THE PUBLIC SCHOOLS ON A NONRACIAL BASIS, AND REVISION OF
LOCAL LAWS AND REGULATIONS WHICH MAY BE NECESSARY IN SOLVING THE
FOREGOING PROBLEMS.  PP. 300-301. 

(K)  THE COURTS WILL ALSO CONSIDER THE ADEQUACY OF ANY PLANS THE
DEFENDANTS MAY PROPOSE TO MEET THESE PROBLEMS AND TO EFFECTUATE A
TRANSITION TO A RACIALLY NONDISCRIMINATORY SCHOOL SYSTEM.  P. 301. 

(L)  DURING THE PERIOD OF TRANSITION, THE COURTS WILL RETAIN
JURISDICTION OF THESE CASES.  P. 301. 

3.  THE JUDGMENT IN THE DELAWARE CASE, ORDERING THE IMMEDIATE
ADMISSION OF THE PLAINTIFFS TO SCHOOLS PREVIOUSLY ATTENDED ONLY BY
WHITE CHILDREN, IS AFFIRMED ON THE BASIS OF THE PRINCIPLES STATED BY
THIS COURT IN ITS OPINION, 347 U.S. 483; BUT THE CASE IS REMANDED TO
THE SUPREME COURT OF DELAWARE FOR SUCH FURTHER PROCEEDINGS AS THAT
COURT MAY DEEM NECESSARY IN THE LIGHT OF THIS OPINION.   P. 301. 

BROWN ET AL. V. BOARD OF EDUCATION OF TOPEKA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS.* 

*TOGETHER WITH NO. 2, BRIGGS ET AL. V. ELLIOTT ET AL., ON APPEAL FROM
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF SOUTH
CAROLINA; NO. 3, DAVIS ET AL. V. COUNTY SCHOOL BOARD OF PRINCE EDWARD
COUNTY, VIRGINIA, ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF VIRGINIA; NO. 4, BOLLING ET AL. V.
SHARPE ET AL., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT; AND NO. 5, GEBHART ET AL. V. BELTON
ET AL., ON CERTIORARI TO THE SUPREME COURT OF DELAWARE. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THESE CASES WERE DECIDED ON MAY 17, 1954.  THE OPINIONS OF THAT DATE,
(FN1) DECLARING THE FUNDAMENTAL PRINCIPLE THAT RACIAL DISCRIMINATION IN
PUBLIC EDUCATION IS UNCONSTITUTIONAL, ARE INCORPORATED HEREIN BY
REFERENCE.  ALL PROVISIONS OF FEDERAL, STATE, OR LOCAL LAW REQUIRING OR
PERMITTING SUCH DISCRIMINATION MUST YIELD TO THIS PRINCIPLE.  THERE
REMAINS FOR CONSIDERATION THE MANNER IN WHICH RELIEF IS TO BE
ACCORDED. 

BECAUSE THESE CASES AROSE UNDER DIFFERENT LOCAL CONDITIONS AND THEIR
DISPOSITION WILL INVOLVE A VARIETY OF LOCAL PROBLEMS, WE REQUESTED
FURTHER ARGUMENT ON THE QUESTION OF RELIEF.  (FN2)  IN VIEW OF THE
NATIONWIDE IMPORTANCE OF THE DECISION, WE INVITED THE ATTORNEY GENERAL
OF THE UNITED STATES AND THE ATTORNEYS GENERAL OF ALL STATES REQUIRING
OR PERMITTING RACIAL DISCRIMINATION IN PUBLIC EDUCATION TO PRESENT
THEIR VIEWS ON THAT QUESTION.  THE PARTIES, THE UNITED STATES, AND THE
STATES OF FLORIDA, NORTH CAROLINA, ARKANSAS, OKLAHOMA, MARYLAND, AND
TEXAS FILED BRIEFS AND PARTICIPATED IN THE ORAL ARGUMENT. 

THESE PRESENTATIONS WERE INFORMATIVE AND HELPFUL TO THE COURT IN ITS
CONSIDERATION OF THE COMPLEXITIES ARISING FROM THE TRANSITION TO A
SYSTEM OF PUBLIC EDUCATION FREED OF RACIAL DISCRIMINATION.  THE
PRESENTATIONS ALSO DEMONSTRATED THAT SUBSTANTIAL STEPS TO ELIMINATE
RACIAL DISCRIMINATION IN PUBLIC SCHOOLS HAVE ALREADY BEEN TAKEN, NOT
ONLY IN SOME OF THE COMMUNITIES IN WHICH THESE CASES AROSE, BUT IN SOME
OF THE STATES APPEARING AS AMICI CURIAE, AND IN OTHER STATES AS WELL. 
SUBSTANTIAL PROGRESS HAS BEEN MADE IN THE DISTRICT OF COLUMBIA AND IN
THE COMMUNITIES IN KANSAS AND DELAWARE INVOLVED IN THIS LITIGATION. 
THE DEFENDANTS IN THE CASES COMING TO US FROM SOUTH CAROLINA AND
VIRGINIA ARE AWAITING THE DECISION OF THIS COURT CONCERNING RELIEF. 

FULL IMPLEMENTATION OF THESE CONSTITUTIONAL PRINCIPLES MAY REQUIRE
SOLUTION OF VARIED LOCAL SCHOOL PROBLEMS.  SCHOOL AUTHORITES HAVE THE
PRIMARY RESPONSIBILITY FOR ELUCIDATING, ASSESSING, AND SOLVING THESE
PROBLEMS; COURTS WILL HAVE TO CONSIDER WHETHER THE ACTION OF SCHOOL
AUTHORITIES CONSTITUTES GOOD FAITH IMPLEMENTATION OF THE GOVERNING
CONSTITUTIONAL PRINCIPLES.  BECAUSE OF THEIR PROXIMITY TO LOCAL
CONDITIONS AND THE POSSIBLE NEED FOR FURTHER HEARINGS, THE COURTS WHICH
ORIGINALLY HEARD THESE CASES CAN BEST PERFORM THIS JUDICIAL APPRAISAL. 
ACCORDINGLY, WE BELIEVE IT APPROPRIATE TO REMAND THE CASES TO THOSE
COURTS.  (FN3) 

IN FASHIONING AND EFFECTUATING THE DECREES, THE COURTS WILL BE GUIDED
BY EQUITABLE PRINCIPLES.  TRADITIONALLY, EQUITY HAS BEEN CHARACTERIZED
BY A PRACTICAL FLEXIBILITY IN SHAPING ITS REMEDIES (FN4) AND BY A
FACILITY FOR ADJUSTING AND RECONCILING PUBLIC AND PRIVATE NEEDS.  (FN5)
THESE CASES CALL FOR THE EXERCISE OF THESE TRADITIONAL ATTRIBUTES OF
EQUITY POWER.  AT STAKE IS THE PERSONAL INTEREST OF THE PLAINTIFFS IN
ADMISSION TO PUBLIC SCHOOLS AS SOON AS PRACTICABLE ON A
NONDISCRIMINATORY BASIS.  TO EFFECTUATE THIS INTEREST MAY CALL FOR
ELIMINATION OF A VARIETY OF OBSTACLES IN MAKING THE TRANSITION TO
SCHOOL SYSTEMS OPERATED IN ACCORDANCE WITH THE CONSTITUTIONAL
PRINCIPLES SET FORTH IN OUR MAY 17, 1954, DECISION.  COURTS OF EQUITY
MAY PROPERLY TAKE INTO ACCOUNT THE PUBLIC INTEREST IN THE ELIMINATION
OF SUCH OBSTACLES IN A SYSTEMATIC AND EFFECTIVE MANNER.  BUT IT SHOULD
GO WITHOUT SAYING THAT THE VITALITY OF THESE CONSTITUTIONAL PRINCIPLES
CANNOT BE ALLOWED TO YIELD SIMPLY BECAUSE OF DISAGREEMENT WITH THEM. 

WHILE GIVING WEIGHT TO THESE PUBLIC AND PRIVATE CONSIDERATIONS, THE
COURTS WILL REQUIRE THAT THE DEFENDANTS MAKE A PROMPT AND REASONABLE
START TOWARD FULL COMPLIANCE WITH OUR MAY 17, 1954, RULING.  ONCE SUCH
A START HAS BEEN MADE, THE COURTS MAY FIND THAT ADDITIONAL TIME IS
NECESSARY TO CARRY OUT THE RULING IN AN EFFECTIVE MANNER.  THE BURDEN
RESTS UPON THE DEFENDANTS TO ESTABLISH THAT SUCH TIME IS NECESSARY IN
THE PUBLIC INTEREST AND IS CONSISTENT WITH GOOD FAITH COMPLIANCE AT THE
EARLIEST PRACTICABLE DATE.  TO THAT END, THE COURTS MAY CONSIDER
PROBLEMS RELATED TO ADMINISTRATION, ARISING FROM THE PHYSICAL CONDITION
OF THE SCHOOL PLANT, THE SCHOOL TRANSPORTATION SYSTEM, PERSONNEL,
REVISION OF SCHOOL DISTRICTS AND ATTENDANCE AREAS INTO COMPACT UNITS TO
ACHIEVE A SYSTEM OF DETERMINING ADMISSION TO THE PUBLIC SCHOOLS ON A
NONRACIAL BASIS, AND REVISION OF LOCAL LAWS AND REGULATIONS WHICH MAY
BE NECESSARY IN SOLVING THE FOREGOING PROBLEMS.  THEY WILL ALSO
CONSIDER THE ADEQUACY OF ANY PLANS THE DEFENDANTS MAY PROPOSE TO MEET
THESE PROBLEMS AND TO EFFECTUATE A TRANSITION TO A RACIALLY
NONDISCRIMINATORY SCHOOL SYSTEM.  DURING THIS PERIOD OF TRANSITION, THE
COURTS WILL RETAIN JURISDICTION OF THESE CASES. 

THE JUDGMENTS BELOW, EXCEPT THAT IN THE DELAWARE CASE, ARE
ACCORDINGLY REVERSED AND THE CASES ARE REMANDED TO THE DISTRICT COURTS
TO TAKE SUCH PROCEEDINGS AND ENTER SUCH ORDERS AND DECREES CONSISTENT
WITH THIS OPINION AS ARE NECESSARY AND PROPER TO ADMIT TO PUBLIC
SCHOOLS ON A RACIALLY NONDISCRIMINATORY BASIS WITH ALL DELIBERATE SPEED
THE PARTIES TO THESE CASES.  THE JUDGMENT IN THE DELAWARE CASE -
ORDERING THE IMMEDIATE ADMISSION OF THE PLAINTIFFS TO SCHOOLS
PREVIOUSLY ATTENDED ONLY BY WHITE CHILDREN - IS AFFIRMED ON THE BASIS
OF THE PRINCIPLES STATED IN OUR MAY 17, 1954, OPINION, BUT THE CASE IS
REMANDED TO THE SUPREME COURT OF DELAWARE FOR SUCH FURTHER PROCEEDINGS
AS THAT COURT MAY DEEM NECESSARY IN LIGHT OF THIS OPINION.  IT IS SO
ORDERED. 

FN1  347 U.S. 483; 347 U.S. 497. 

FN2  FURTHER ARGUMENT WAS REQUESTED ON THE FOLLOWING QUESTIONS, 347
U.S. 483, 495-496, N. 13, PREVIOUSLY PROPOUNDED BY THE COURT: 

"4.  ASSUMING IT IS DECIDED THAT SEGREGATION IN PUBLIC SCHOOLS
VIOLATES THE FOURTEENTH AMENDMENT: 

"(A)  WOULD A DECREE NECESSARILY FOLLOW PROVIDING THAT, WITHIN THE
LIMITS SET BY NORMAL GEOGRAPHIC SCHOOL DISTRICTING, NEGRO CHILDREN
SHOULD FORTHWITH BE ADMITTED TO SCHOOLS OF THEIR CHOICE, OR: 

"(B)  MAY THIS COURT, IN THE EXERCISE OF ITS EQUITY POWERS, PERMIT AN
EFFECTIVE GRADUAL ADJUSTMENT TO BE BROUGHT ABOUT FROM EXISTING
SEGREGATED SYSTEMS TO A SYSTEM NOT BASED ON COLOR DISTINCTIONS? 

"5.  ON THE ASSUMPTION ON WHICH QUESTIONS 4(A) AND (B) ARE BASED, AND
ASSUMING FURTHER THAT THIS COURT WILL EXERCISE ITS EQUITY POWERS TO THE
END DESCRIBED IN QUESTION 4(B): 

"(A)  SHOULD THIS COURT FORMULATE DETAILED DECREES IN THESE CASES: 

"(B)  IF SO, WHAT SPECIFIC ISSUES SHOULD THE DECREES REACH: 

"(C)  SHOULD THIS COURT APPOINT A SPECIAL MASTER TO HEAR EVIDENCE
WITH A VIEW TO RECOMMENDING SPECIFIC TERMS FOR SUCH DECREES: 

"(D)  SHOULD THIS COURT REMAND TO THE COURTS OF FIRST INSTANCE WITH
DIRECTIONS TO FRAME DECREES IN THESE CASES, AND IF SO WHAT GENERAL
DIRECTIONS SHOULD THE DECREES OF THIS COURT INCLUDE AND WHAT PROCEDURES
SHOULD THE COURTS OF FIRST INSTANCE FOLLOW IN ARRIVING AT THE SPECIFIC
TERMS OF MORE DETAILED DECREES?" 

FN3  THE CASES COMING TO US FROM KANSAS, SOUTH CAROLINA, AND VIRGINIA
WERE ORIGINALLY HEARD BY THREE-JUDGE DISTRICT COURTS CONVENED UNDER 28
U.S.C. SECS. 2281 AND 2284.  THESE CASES WILL ACCORDINGLY BE REMANDED
TO THOSE THREE-JUDGE COURTS.  SEE BRIGGS V. ELLIOTT, 342 U.S. 350. 

FN4  SEE ALEXANDER V. HILLMAN, 296 U.S. 222, 239. 

FN5  SEE HECHT CO. V. BOWLES, 321 U.S. 321, 329-330. 
..END :



















MARCELLO V. BONDS 349 U.S. 302 


NO. 145.  ARGUED APRIL 21-22, 1955 - DECIDED MAY 31, 1955 - 212 F.2D
830, AFFIRMED. 


AFTER A HEARING PURSUANT TO SEC. 242(B) OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952, PETITIONER, AN ALIEN WHO HAD BEEN CONVICTED IN
1938 OF VIOLATION OF THE MARIHUANA TAX ACT, WAS ORDERED DEPORTED. 
GROUND FOR DEPORTATION, AND SEC. 241(D) PROVIDES THAT THE DEPORTATION
PROVISIONS OF SEC. 241(A) SHALL APPLY EVEN THOUGH THE FACTS GIVING RISE
TO THE ALIEN'S DEPORTABILITY OCCURRED PRIOR TO THE DATE OF ENACTMENT OF
THE 1952 ACT.  THE VALIDITY OF THE DEPORTATION ORDER WAS CHALLENGED BY
PETITIONER IN A HABEAS CORPUS PROCEEDING.  HELD: 

1.  THE IMMIGRATION AND NATIONALITY ACT OF 1952 EXPRESSLY SUPERSEDES
THE HEARING PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT.  PP. 305
310. 

2.  THE FACT THAT THE SPECIAL INQUIRY OFFICER WAS SUBJECT TO THE
SUPERVISION AND CONTROL OF OFFICIALS IN THE IMMIGRATION SERVICE CHARGED
WITH INVESTIGATIVE AND PROSECUTING FUNCTIONS DID NOT SO STRIP THE
HEARING OF FAIRNESS AND IMPARTIALITY AS TO MAKE THE PROCEDURE VIOLATIVE
OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  P. 311. 

3.  PETITIONER FAILED TO SUPPORT HIS CLAIM THAT, WITHIN THE MEANING
OF THIS COURT'S DECISIONS IN THE ACCARDI CASES, HIS CASE WAS PRE-JUDGED
BY THE BOARD OF IMMIGRATION APPEALS AND BY THE SPECIAL INQUIRY
OFFICER.  PP. 311-314. 

4.  THE PROHIBITION OF THE EX POST FACTO CLAUSE OF THE CONSTITUTION
DOES NOT APPLY TO DEPORTATION OF ALIENS.  GALVAN V. PRESS, 347 U.S.
522; HARISIADES V. SHAUGHNESSY, 342 U.S. 580.  P. 314. 

MARCELLO V. BONDS, OFFICER IN CHARGE, IMMIGRATION AND NATURALIZATION
SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A NATIVE OF TUNIS, AFRICA, WAS ORDERED DEPORTED AFTER A
HEARING PURSUANT TO SEC. 242(B) OF THE IMMIGRATION AND NATIONALITY ACT
OF 1952, 66 STAT. 209, 8 U.S.C. SEC. 1252(B).  IT WAS FOUND THAT HE HAD
BEEN CONVICTED IN 1938 OF VIOLATION OF THE MARIHUANA TAX ACT, 26 U.S.C.
SEC. 2591, AND SENTENCED TO IMPRISONMENT FOR ONE YEAR.  SECTION
241(A)(11) OF THE 1952 IMMIGRATION LAW (FN1) MAKES SUCH CONVICTION AT
ANY TIME GROUND FOR DEPORTATION, AND SEC. 241(D) (FN2) PROVIDES THAT
THE DEPORTATION PROVISIONS OF SEC. 241(A) SHALL APPLY EVEN THOUGH THE
FACTS GIVING RISE TO THE ALIEN'S DEPORTABILITY OCCURRED PRIOR TO THE
DATE OF ENACTMENT OF THE 1952 ACT. 

AT THE HEARING BEFORE A SPECIAL INQUIRY OFFICER OF THE IMMIGRATION
AND NATURALIZATION SERVICE, PETITIONER DID NOT DISPUTE THE FACT OF HIS
CONVICTION.  HE DID, HOWEVER, OBJECT TO THE PROCEEDINGS ON THE GROUND
THAT THEY VIOLATED DUE PROCESS AND THE ADMINISTRATIVE PROCEDURE ACT, 60
STAT. 237, 5 U.S.C. SEC. 1001 ET SEQ. THE HEARING OFFICER OVERRULED
THESE OBJECTIONS.  PETITIONER ALSO CONTENDED THAT THE EX POST FACTO
CLAUSE OF THE CONSTITUTION PRECLUDED THE RETROACTIVE APPLICATION OF THE
1952 LAW TO HIS CASE.  THIS CONTENTION TOO WAS REJECTED BY THE HEARING
OFFICER.  PETITIONER AND HIS COUNSEL WERE ADVISED OF THEIR RIGHT TO
APPLY TO THE ATTORNEY GENERAL FOR THE DISCRETIONARY RELIEF OF
SUSPENSION OF DEPORTATION UNDER SEC. 244(A)(5) OF THE ACT.  (FN3)  AT
FIRST THEY DECLINED TO DO SO, BUT SUBSEQUENTLY THEY MOVED TO REOPEN THE
HEARING TO APPLY FOR SUCH RELIEF.  THE SPECIAL INQUIRY OFFICER DENIED
THE MOTION.  ON APPEAL, THE BOARD OF IMMIGRATION APPEALS AFFIRMED THE
ORDER OF DEPORTATION.  THOUGH NO FORMAL APPLICATION FOR SUSPENSION OF
DEPORTATION UNDER SEC. 244(A)(5) HAD BEEN FILED, THE BOARD CONSIDERED
WHETHER SUCH RELIEF WAS MERITED BUT EXERCISED ITS DISCRETION AGAINST
THE REMISSION. 

PETITIONER THEN BROUGHT THIS ACTION FOR A WRIT OF HABEAS CORPUS,
CHALLENGING THE VALIDITY OF THE DEPORTATION ORDER ON THE GROUNDS, INTER
ALIA:  (1) THAT THE HEARING UNDER SEC. 242(B) OF THE ACT FAILED TO
COMPLY WITH THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT IN
THAT THE SPECIAL INQUIRY OFFICER WAS UNDER THE SUPERVISION AND CONTROL
OF OFFICIALS IN THE IMMIGRATION SERVICE WHO PERFORMED INVESTIGATIVE AND
PROSECUTING FUNCTIONS; (2) THAT SEC. 242(B) VIOLATED THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT BECAUSE IT FAILED TO PROVIDE FOR A FAIR
AND IMPARTIAL HEARING; (3) THAT ON THE DATE OF PETITIONER'S ARREST THE
ATTORNEY GENERAL MADE A PUBLIC STATEMENT, WHICH "WAS BOUND TO HAVE
GREAT EFFECT UPON THE SPECIAL INQUIRY OFFICER," TO THE EFFECT THAT
PETITIONER WAS AN UNDESIRABLE CITIZEN FOR WHOSE DEPORTATION THE
PROCEEDINGS WERE "SPECIALLY DESIGNED," AND, FURTHER, THAT IN 1952 THE
ATTORNEY GENERAL "PREPARED A LIST OF 152 PERSONS (INCLUDING PETITIONER)
WHOM HE DESIRED TO DEPORT"; AND (4) THAT THE RETROACTIVE APPLICATION OF
SEC. 241(A)(11) WAS UNCONSTITUTIONAL AS AN EX POST FACTO LAW. 

THE GOVERNMENT'S RETURN TO THE WRIT ALLEGED THAT PETITIONER'S
DEPORTATION HAD BEEN CONDUCTED IN ACCORDANCE WITH THE CONSTITUTION,
LAWS AND REGULATIONS OF THE UNITED STATES.  NO EVIDENCE WAS INTRODUCED
BY EITHER SIDE SAVE THE OFFICIAL IMMIGRATION SERVICE RECORD OF
PETITIONER'S DEPORTATION PROCEEDINGS.  THE DISTRICT COURT HELD THE
DEPORTATION ORDER VALID AND DISCHARGED THE WRIT.  113 F. SUPP. 22.  THE
COURT OF APPEALS AFFIRMED.  212 F.2D 830.  PETITIONER PURSUES HIS FOUR
BASIC OBJECTIONS IN THIS COURT, CERTIORARI HAVING BEEN GRANTED TO
RESOLVE ISSUES HAVING A SIGNIFICANT BEARING ON THE ADMINISTRATION OF
OUR IMMIGRATION LAWS.  348 U.S. 805. 

APPLICABILITY OF THE ADMINISTRATIVE PROCEDURE ACT. 

PETITIONER CONCEDES THAT SEC. 242(B) OF THE IMMIGRATION ACT,
AUTHORIZING THE APPOINTMENT OF A "SPECIAL INQUIRY OFFICER" TO PRESIDE
AT THE DEPORTATION PROCEEDINGS, DOES NOT CONFLICT WITH THE
ADMINISTRATIVE PROCEDURE ACT, SINCE SEC. 7(A) OF THAT ACT EXCEPTS FROM
ITS TERMS OFFICERS SPECIALLY PROVIDED FOR OR DESIGNATED PURSUANT TO
OTHER STATUTES.  (FN4)  HE INSISTS, HOWEVER, THAT THERE ARE SEVERAL
SIGNIFICANT DISCREPANCIES BETWEEN THE ACTS, AND CLAIMS THAT IN CASES OF
VARIANCE THE PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT MUST GOVERN
UNLESS THOSE OF THE IMMIGRATION ACT "SHALL  ...  EXPRESSLY" NEGATE
THEIR APPLICATION.  ADMINISTRATIVE PROCEDURE ACT, SEC. 12.  THE
DISCREPANCIES RELIED ON STEM FROM THE "SEPARATION OF FUNCTIONS"
PROVISION OF SEC. 5(C) OF THE ADMINISTRATIVE PROCEDURE ACT.  TO THE
EXTENT HERE MATERIAL, THIS SECTION SEPARATES INVESTIGATIVE AND
PROSECUTING FUNCTIONS FROM THOSE OF ADJUDICATION, EXPRESSLY PROVIDING
THAT HEARING OFFICERS SHALL NOT BE RESPONSIBLE TO OR UNDER THE
SUPERVISION OF THOSE ENGAGED IN INVESTIGATION AND PROSECUTION.  THE
ADVISING IN THE DECISION OF A CASE, OR ONE FACTUALLY RELATED THERETO,
IN WHICH HE HAS PERFORMED INVESTIGATIVE OR PROSECUTING FUNCTIONS. 
"SPECIAL INQUIRY OFFICER" TO TAKE THE DUAL ROLE OF PROSECUTOR AND
HEARING OFFICER - PRESENTING EVIDENCE AND INTERROGATING WITNESSES - AND
PROHIBITS HIM ONLY FROM HEARING CASES WHICH HE HAS TAKEN SOME PART IN
INVESTIGATING OR PROSECUTING (OTHER THAN IN THE PERMITTED DUAL
CAPACITY).  AN ALTERNATIVE METHOD IS PERMITTED BY SEC. 242(B), HOWEVER,
UNDER WHICH AN ADDITIONAL IMMIGRATION OFFICER PRESENTS THE EVIDENCE
WHILE THE SPECIAL INQUIRY OFFICER PRESIDES.  SEE 8 CFR SEC. 242.53. 
SPECIAL INQUIRY OFFICERS ARE SUBJECT TO SUCH SUPERVISION AS THE
ATTORNEY GENERAL PRESCRIBES, 66 STAT. 171, 8 U.S.C. SEC. 1101(B)(4),
AND AT PRESENT THEY ARE SUBJECT TO THE SUPERVISION OF DISTRICT
DIRECTORS OF THE IMMIGRATION DISTRICTS TO WHICH THEY ARE ASSIGNED, AS
WELL AS HIGHER SERVICE OFFICIALS, ALL WITH ENFORCEMENT RESPONSIBILITIES
OF THE TYPE PROSCRIBED BY SEC. 5(C) OF THE ADMINISTRATIVE PROCEDURE
ACT. 

UNDER THE ALLEGATIONS HERE MADE, THE SINGLE ATTACK OF THE PETITIONER
PERTAINS TO THE SUPERVISION OF THE SPECIAL INQUIRY OFFICER BY THE
INVESTIGATIVE AND PROSECUTING OFFICIALS OF THE IMMIGRATION SERVICE. 
THE ALTERNATIVE PROCEDURE OF SEC. 242(B) WAS EMPLOYED IN THIS CASE, SO
THE PRESIDING OFFICER DID NOT UNDERTAKE THE FUNCTIONS OF PROSECUTOR;
AND THERE IS NO ALLEGATION THAT HE ENGAGED IN INVESTIGATIVE OR
PROSECUTING FUNCTIONS IN THIS OR ANY FACTUALLY RELATED CASE.  FOR THE
SAKE OF CLARITY, HOWEVER, WE SHALL CONSIDER ALL OF THE DIFFERENCES IN
THE HEARING PROVISIONS OF THE TWO ACTS IN DETERMINING WHETHER THE
ADMINISTRATIVE PROCEDURE ACT IS TO GOVERN. 

THE APPLICABILITY OF THE ADMINISTRATIVE PROCEDURE ACT TO DEPORTATION
PROCEEDINGS UNDER THE IMMIGRATION ACT OF 1917 WAS CONSIDERED BY THIS
COURT IN WONG YANG SUNG V. MCGRATH, 339 U.S. 33 (1950).  WE THERE HELD,
CONTRARY TO THE PREVAILING INTERPRETATION AND PRACTICE OF THE
DEPARTMENT OF JUSTICE, THAT DEPORTATION HEARINGS WERE SUBJECT TO THE
ACT.  SIX MONTHS LATER, CONGRESS PROVIDED IN THE SUPPLEMENTAL
APPROPRIATION ACT OF 1951, 64 STAT. 1048, THAT PROCEEDINGS DIRECTED
TOWARD THE EXCLUSION OR EXPULSION OF ALIENS SHOULD NOT BE GOVERNED BY
SECS. 5, 7 AND 8 OF THE ADMINISTRATIVE PROCEDURE ACT.  THE ISSUE HERE
PRESENTED IS WHETHER THE CONGRESS REVERSED ITSELF IN THE 1952
IMMIGRATION ACT AND IN EFFECT REINSTATED THE SUNG CASE BY MAKING THE
HEARING PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT DIRECTLY
APPLICABLE TO DEPORTATION PROCEEDINGS.  A COMPARISON OF THE PERTINENT
PROVISIONS OF THE TWO STATUTES IS PERHAPS THE STRONGEST INDICATION THAT
THE CONGRESS HAD NO SUCH INTENTION. 

1.  SECTION 242(B) OF THE IMMIGRATION ACT BEGINS BY ENUMERATING THE
FUNCTIONS OF THE SPECIAL INQUIRY OFFICER, THAT HE SHALL ADMINISTER
OATHS, RECEIVE EVIDENCE, ETC.  A SIMILAR THOUGH MORE EXTENSIVE AND
DETAILED PROVISION APPEARS IN SEC. 7(B) OF THE ADMINISTRATIVE PROCEDURE
ACT, BUT OF COURSE THIS SECTION MAKES NO MENTION OF FUNCTIONS STEMMING
FROM THE SPECIAL INQUIRY OFFICER'S DUAL ROLE AS PROSECUTOR AND JUDGE. 

2.  SECTION 242(B) THEN DIRECTS THAT A DETERMINATION OF DEPORTABILITY
BE MADE ONLY UPON THE RECORD OF A PROCEEDING AT WHICH THE ALIEN HAD A
REASONABLE OPPORTUNITY TO BE PRESENT.  A SIMILAR DIRECTION AS TO THE
RECORD APPEARS IN SEC. 7(D) OF THE ADMINISTRATIVE PROCEDURE ACT, AND AS
TO THE PARTY'S PERSONAL APPEARANCE IN SEC. 6(A). 

3.  SECTION 242(B) THEN DEALS WITH MATTERS PECULIAR TO DEPORTATION
PROCEEDINGS, WHICH HAVE NO DIRECT ANALOGUES IN THE ADMINISTRATIVE
PROCEDURE ACT:  SAFEGUARDS TO BE ESTABLISHED TO PROTECT MENTALLY
INCOMPETENT ALIENS; THE RIGHT OF THE INQUIRY OFFICER TO PROCEED IF THE
ALIEN DELIBERATELY ABSENTS HIMSELF; THE OPTION TO PURSUE THE
ALTERNATIVE PROCEDURE, DESCRIBED ABOVE, IN WHICH ONE OFFICIAL
PROSECUTES AND ANOTHER DECIDES. 

4.  NEXT IN SEC. 242(B) IS THE LIMITATION ALREADY NOTED ON THE
SPECIAL INQUIRY OFFICER'S SITTING IN THE SAME CASE IN WHICH HE HAS ALSO
ENGAGED IN INVESTIGATIVE OR PROSECUTING FUNCTIONS.  THE MORE
RESTRICTIVE ANALOGUE IN SEC. 5(C) OF THE ADMINISTRATIVE PROCEDURE ACT
HAS ALSO BEEN PRESENTED. 

5.  SECTION 242(B) THEN SETS FORTH VARIOUS REQUIREMENTS WHICH ARE TO
BE INCLUDED IN REGULATIONS GOVERNING DEPORTATION PROCEEDINGS BEFORE THE
SPECIAL INQUIRY OFFICER.  THE FIRST OF THESE GIVES THE ALIEN THE RIGHT
TO REASONABLE NOTICE OF THE CHARGES AGAINST HIM AND OF THE TIME AND
PLACE AT WHICH THE PROCEEDINGS SHALL BE HELD.  A SIMILAR REQUIREMENT
APPEARS IN SEC. 5(A) OF THE ADMINISTRATIVE PROCEDURE ACT. 

6.  THE SECOND PROVISION WHICH SEC. 242(B) REQUIRES TO BE INCLUDED IN
THE REGULATIONS IS THE PRIVILEGE OF THE ALIEN TO BE REPRESENTED BY
COUNSEL OF HIS OWN CHOOSING.  SECTION 6(A) OF THE ADMINISTRATIVE
PROCEDURE ACT BESTOWS A SIMILAR PRIVILEGE ON ANY PERSON COMPELLED TO
APPEAR IN PERSON BEFORE THE AGENCY. 

7.  THE REGULATIONS UNDER SEC. 242(B) MUST ALSO PROVIDE THAT THE
ALIEN BE GIVEN A REASONABLE OPPORTUNITY TO PRESENT AND EXAMINE EVIDENCE
AND TO CROSS-EXAMINE WITNESSES.  THE SAME GROUND IS COVERED IN SEC.
7(C) OF THE ADMINISTRATIVE PROCEDURE ACT. 

8.  THE REGULATIONS PROMULGATED UNDER SEC. 242(B) MUST REQUIRE THAT
DECISIONS OF DEPORTABILITY BE BASED UPON REASONABLE, SUBSTANTIAL AND
PROBATIVE EVIDENCE.  TO THE SAME EFFECT IS SEC. 7(C) OF THE
ADMINISTRATIVE PROCEDURE ACT. 

9.  FINALLY, IN ADDITION TO THE REQUIREMENTS OF SEC. 242(B), THERE IS
THE DIRECTION OF SEC. 101(B)(4) OF THE IMMIGRATION ACT THAT THE SPECIAL
INQUIRY OFFICER SHALL BE SUBJECT TO SUCH SUPERVISION AS THE ATTORNEY
GENERAL SHALL PRESCRIBE.  THIS COVERS THE SAME QUESTION AS THE PORTION
OF SEC. 5(C) OF THE ADMINISTRATIVE PROCEDURE ACT DEALING WITH THE
SUPERVISION AND CONTROL OF HEARING OFFICERS. 

FROM THE IMMIGRATION ACT'S DETAILED COVERAGE OF THE SAME SUBJECT
MATTER DEALT WITH IN THE HEARING PROVISIONS OF THE ADMINISTRATIVE
PROCEDURE ACT, IT IS CLEAR THAT CONGRESS WAS SETTING UP A SPECIALIZED
ADMINISTRATIVE PROCEDURE APPLICABLE TO DEPORTATION HEARINGS, DRAWING
LIBERALLY ON THE ANALOGOUS PROVISIONS OF THE ADMINISTRATIVE PROCEDURE
ACT AND ADAPTING THEM TO THE PARTICULAR NEEDS OF THE DEPORTATION
PROCESS.  THE SAME LEGISLATORS, SENATOR MCCARRAN AND CONGRESSMAN
WALTER, SPONSORED BOTH THE ADMINISTRATIVE PROCEDURE ACT AND THE
IMMIGRATION ACT, AND THE FRAMEWORK OF THE LATTER INDICATES CLEARLY THAT
THE ADMINISTRATIVE PROCEDURE ACT WAS BEING USED AS A MODEL.  BUT IT WAS
INTENDED ONLY AS A MODEL, AND WHEN IN THIS VERY PARTICULARIZED
ADAPTATION THERE WAS A DEPARTURE FROM THE ADMINISTRATIVE PROCEDURE ACT
BASED ON NOVEL FEATURES IN THE DEPORTATION PROCESS - SURELY IT WAS THE
INTENTION OF THE CONGRESS TO HAVE THE DEVIATION APPLY AND NOT THE
GENERAL MODEL.  WERE THE COURTS TO IGNORE THESE PROVISIONS AND LOOK
ONLY TO THE ADMINISTRATIVE PROCEDURE ACT, THE PAINSTAKING EFFORTS
DETAILED ABOVE WOULD BE COMPLETELY MEANINGLESS.  CONGRESS COULD HAVE
ACCOMPLISHED AS MUCH SIMPLY BY STATING THAT THERE SHOULD BE A HEARING
TO DETERMINE THE QUESTION OF DEPORTABILITY. 

SHALL BE THE SOLE AND EXCLUSIVE PROCEDURE FOR DETERMINING THE
DEPORTABILITY OF AN ALIEN UNDER THIS SECTION."  THAT THIS CLEAR AND
CATEGORICAL DIRECTION WAS MEANT TO EXCLUDE THE APPLICATION OF THE
ADMINISTRATIVE PROCEDURE ACT IS AMPLY DEMONSTRATED BY THE LEGISLATIVE
HISTORY OF THE IMMIGRATION ACT.  THE ORIGINAL BILLS INCLUDED STATEMENTS
TO THE EFFECT THAT THE SEC. 242(B) PROCEDURES WERE TO BE EXCLUSIVE,
"NOTWITHSTANDING ANY OTHER LAW, INCLUDING THE ADMINISTRATIVE PROCEDURE
ACT."  S. 3455, 81ST CONG., 2D SESS.; S. 716, 82D CONG., 1ST SESS.;
H.R. 2379, 82D CONG., 1ST SESS.  THE "NOTWITHSTANDING" CLAUSE WAS
DROPPED IN LATER VERSIONS OF THE ACT AND DID NOT APPEAR IN THE BILLS
REPORTED OUT OF COMMITTEE OR IN THE STATUTE AS FINALLY ENACTED.  S.
2055, 82D CONG.; H.R. 5678, 82D CONG.; S. 2550, 82D CONG.  THE DELETION
IS NOWHERE EXPLAINED, BUT IT IS POSSIBLE THAT THE PHRASE WAS CONSIDERED
UNNECESSARY - AND PERHAPS INAPPROPRIATE AS A DESCRIPTION - AS SEC.
242(B) BECAME MORE DETAILED, ENCOMPASSING IN ITS PARTICULARIZATION THE
GREATER PART OF THE ADMINISTRATIVE PROCEDURE ACT'S HEARING PROVISIONS. 
IN THE SENATE REPORT ACCOMPANYING THE REVISED BILL, IT IS STATED THAT
SEC. 242(B) SETS UP SPECIAL PROCEDURES FOR DEPORTATION PROCEEDINGS,
THAT THESE ARE MADE EXCLUSIVE, AND THAT THE EXEMPTION FROM THE
ADMINISTRATIVE PROCEDURE ACT IN THE SUPPLEMENTAL APPROPRIATION ACT OF
1951 IS REPEALED BECAUSE IT IS "NO LONGER NECESSARY."  S. REP. NO.
1137, 82D CONG., 2D SESS., P. 28.  THE HOUSE REPORT IS TO THE SAME
EFFECT, STATING THAT THE PRESCRIBED DEPORTATION PROCEEDINGS SHALL BE
THE SOLE AND EXCLUSIVE PROCEDURE, "NOTWITHSTANDING THE PROVISIONS OF
ANY OTHER LAW."  H.R. REP. NO. 1365, 82D CONG., 2D SESS., P. 58. 
THROUGHOUT THE DEBATES IT IS MADE CLEAR THAT THE ADMINISTRATIVE
PROCEDURE ACT DOES NOT APPLY DIRECTLY, BUT THAT ITS PROVISIONS HAVE
BEEN SPECIALLY ADAPTED TO MEET THE NEEDS OF THE DEPORTATION PROCESS. 
SEE PARTICULARLY THE DETAILED STATEMENT OF SENATOR MCCARRAN, 98 CONG.
REC. 5625-5626, WHEREIN HE RECOGNIZES A DEPARTURE FROM THE "DUAL
EXAMINER PROVISIONS" OF THE ADMINISTRATIVE PROCEDURE ACT, THE VERY

EXEMPTIONS FROM THE TERMS OF THE ADMINISTRATIVE PROCEDURE ACT ARE NOT
LIGHTLY TO BE PRESUMED IN VIEW OF THE STATEMENT IN SEC. 12 OF THE ACT
THAT MODIFICATIONS MUST BE EXPRESS, CF. SHAUGHNESSY V. PEDREIRO, 349
U.S. 48.  BUT WE CANNOT IGNORE THE BACKGROUND OF THE 1952 IMMIGRATION
LEGISLATION, ITS LABORIOUS ADAPTATION OF THE ADMINISTRATIVE PROCEDURE
ACT TO THE DEPORTATION PROCESS, THE SPECIFIC POINTS AT WHICH DEVIATIONS
FROM THE ADMINISTRATIVE PROCEDURE ACT WERE MADE, THE RECOGNITION IN THE
LEGISLATIVE HISTORY OF THIS ADAPTIVE TECHNIQUE AND OF THE PARTICULAR
DEVIATIONS, AND THE DIRECTION IN THE STATUTE THAT THE METHODS THEREIN
PRESCRIBED SHALL BE THE SOLE AND EXCLUSIVE PROCEDURE FOR DEPORTATION
PROCEEDINGS.  UNLESS WE ARE TO REQUIRE THE CONGRESS TO EMPLOY MAGICAL
PASSWORDS IN ORDER TO EFFECTUATE AN EXEMPTION FROM THE ADMINISTRATIVE
PROCEDURE ACT, WE MUST HOLD THAT THE PRESENT STATUTE EXPRESSLY
SUPERSEDES THE HEARING PROVISIONS OF THAT ACT. 

THE HEARING PROCEDURES AND DUE PROCESS. 

AS NOTED ABOVE, THE ONLY COMPLAINT WHICH PETITIONER CAN URGE
CONCERNING THE HEARING PROCEDURES IN THIS CASE IS THE OBJECTION THAT
THE SPECIAL INQUIRY OFFICER WAS SUBJECT TO THE SUPERVISION AND CONTROL
OF OFFICIALS IN THE IMMIGRATION SERVICE CHARGED WITH INVESTIGATIVE AND
PROSECUTING FUNCTIONS.  PETITIONER WOULD HAVE US HOLD THAT THE PRESENCE
OF THIS RELATIONSHIP SO STRIPS THE HEARING OF FAIRNESS AND IMPARTIALITY
AS TO MAKE THE PROCEDURE VIOLATIVE OF DUE PROCESS.  THE CONTENTION IS
WITHOUT SUBSTANCE WHEN CONSIDERED AGAINST THE LONG-STANDING PRACTICE IN
DEPORTATION PROCEEDINGS, JUDICIALLY APPROVED IN NUMEROUS DECISIONS IN
THE FEDERAL COURTS, AND AGAINST THE SPECIAL CONSIDERATIONS APPLICABLE
TO DEPORTATION WHICH THE CONGRESS MAY TAKE INTO ACCOUNT IN EXERCISING
ITS PARTICULARLY BROAD DISCRETION IN IMMIGRATION MATTERS. 

THE CLAIM OF PREJUDGMENT. 

OUR OPINIONS IN THE ACCARDI CASES STAND FOR THE PROPOSITION THAT THE
ATTORNEY GENERAL CANNOT, UNDER PRESENT REGULATIONS, DICTATE THE ACTIONS
OF THE BOARD OF IMMIGRATION APPEALS.  ACCARDI V. SHAUGHNESSY, 347 U.S.
260; SHAUGHNESSY V. ACCARDI, 349 U.S. 280.  PETITIONER ALLEGES THAT HIS
CASE WAS PREJUDGED WITHIN THE MEANING OF THESE DECISIONS BECAUSE ON THE
DAY OF HIS ARREST FOR DEPORTATION THE ATTORNEY GENERAL "ANNOUNCED IN A
PUBLIC STATEMENT (FN5) BOTH IN WASHINGTON AND IN NEW ORLEANS THAT
PETITIONER WAS AN UNDESIRABLE CITIZEN AND HAD BEEN GUILTY OF MANY
CRIMES, AND THAT THE PROCEEDINGS WERE SPECIALLY DESIGNED TO DEPORT
PETITIONER," AND THAT "SUCH PUBLICITY WAS BOUND TO HAVE GREAT EFFECT
UPON THE SPECIAL INQUIRY OFFICER."  HE ALLEGED, FURTHER, THAT "THE
ATTORNEY GENERAL SOME TIME IN 1952 PREPARED A LIST OF 152 PERSONS WHOM
HE DESIRED TO DEPORT, AND THAT HIS NAME WAS INCLUDED ON THIS LIST." 

CONSIDERING FIRST THE ALLEGED LIST, IT IS CLEAR THAT PETITIONER HAS
NOT MADE OUT A CASE OF PREJUDGMENT.  HE DID NOT ALLEGE THAT EITHER THE
INQUIRY OFFICER OR THE BOARD OF IMMIGRATION APPEALS HAD SEEN THE LIST,
HAD KNOWN OF ITS EXISTENCE, OR HAD BEEN INFLUENCED IN THEIR DECISIONS
BY THE INCLUSION OF PETITIONER'S NAME THEREON.  IN ARGUMENT BEFORE THE
BOARD, PETITIONER STATED THROUGH COUNSEL THAT HE HAD "THE FEELING - AND
IT'S A FEELING THAT'S BASED UPON EVIDENCE WHICH WE WILL SUPPLY - THAT
THE REAL BASIS FOR THE DENIAL OF SUSPENSION HERE WAS THE FACT THAT
MARCELLO WAS ONE OF THESE HUNDRED WHOM THE ATTORNEY GENERAL HAD NAMED
...  ."  NO EVIDENCE OF THIS WAS FORTHCOMING.  AS TO PETITIONER'S
CHARGES CONCERNING THE ATTORNEY GENERAL'S "LIST," THE RECORD IS
COMPLETELY BARREN. 

NOR DOES PETITIONER FARE BETTER IN SEEKING TO BASE PREJUDGMENT ON THE
UNFAVORABLE PUBLICITY ACCOMPANYING HIS ARREST.  HE INTRODUCED NEWSPAPER
CLIPPINGS INTO EVIDENCE TO SHOW THE ADVERSE LOCAL PUBLICITY AND ALLEGED
THAT THIS PUBLICITY MUST HAVE HAD A "GREAT EFFECT" UPON THE SPECIAL
INQUIRY OFFICER.  BUT THE RECORD INDICATES CLEARLY THAT PETITIONER'S
CASE COULD NOT POSSIBLY HAVE BEEN PREJUDICED IN THE HEARING BEFORE THE
INQUIRY OFFICER.  ON THE QUESTION OF PETITIONER'S DEPORTABILITY, THE
SOLE ISSUE DECIDED BY HIM, THE HEARING OFFICER MERELY APPLIED THE
STATUTE TO THE UNDISPUTED FACTS.  PETITIONER ADMITTED THAT HE WAS
DEPORTABLE UNDER THE IMMIGRATION ACT OF 1952 IF THE ACT COULD
CONSTITUTIONALLY BASE DEPORTATION ON HIS 1938 MARIHUANA CONVICTION. 
AND THE HEARING OFFICER COULD BE EXPECTED IN ANY EVENT TO TAKE THE LAW
AS CONGRESS ENACTED IT.  IN VIEW OF THIS COURT'S DECISIONS ON THE EX
POST FACTO OBJECTION, THE ONLY GROUND OF ATTACK, HE COULD DO NOTHING
ELSE.  PETITIONER WAIVED THE ONLY ISSUE ON WHICH PREJUDGMENT WAS
POSSIBLE WHEN HE DECLINED TO APPLY FOR DISCRETIONARY RELIEF AT THE
PROPER TIME.  SEE 8 CFR SEC. 242.54(D). 

THE BOARD OF IMMIGRATION APPEALS CONSIDERED THE AVAILABILITY OF
DISCRETIONARY RELIEF, BUT AS TO THESE OFFICIALS THERE WAS NOT EVEN AN
ALLEGATION BY PETITIONER THAT THEY HAD KNOWN OF THE UNFAVORABLE
PUBLICITY OR HAD BEEN INFLUENCED BY IT.  INDEED, THERE IS EVERY
INDICATION THAT THE BOARD HAD NOT PREJUDGED THE CASE, SINCE IT
CONSIDERED THE QUESTION OF SUSPENDING DEPORTATION ON THE MERITS
ALTHOUGH NOT BOUND TO DO SO IN VIEW OF PETITIONER'S WAIVER BELOW.  THE
BOARD DENIED THE REQUESTED RELIEF, GIVING REASONS.  IT IS NOT FOR US IN
THIS PROCEEDING TO PASS ON THE FACTORS RELIED ON BY THE BOARD IN
REACHING ITS CONCLUSION.  IT IS SUFFICIENT TO OBSERVE THAT ALL HAD
BASIS IN THE RECORD AND THAT NONE STEMMED FROM ANY SORT OF DICTATION BY
THE ATTORNEY GENERAL. 

FINALLY, WE NOTE THAT, EVEN AS TO HIS CLAIM RELATING TO ADVERSE
PUBLICITY, PETITIONER INTRODUCED NO EVIDENCE OTHER THAN THE NEWSPAPER
CLIPPINGS.  SURELY ON THIS MEAGER SHOWING THE DISTRICT JUDGE WAS
WARRANTED IN FINDING - AS HE DID - THAT THE SPECIAL INQUIRY OFFICER,
THE ONLY OFFICIAL MENTIONED IN PETITIONER'S PLEADINGS, WAS NOT
CONTROLLED IN HIS DECISION BY SUPERIORS IN THE DEPARTMENT OF JUSTICE. 
THE DECISION OF THE DISTRICT JUDGE CANNOT BE SET ASIDE AS CLEARLY
ERRONEOUS.  ACCORDINGLY, WE HOLD THAT UNDER OUR ACCARDI DECISIONS
PETITIONER HAS FAILED TO MAKE OUT A CASE FOR A NEW HEARING. 

EX POST FACTO. 

PETITIONER'S LAST OBJECTION STEMS FROM THE FACT THAT HIS CONVICTION
UNDER THE MARIHUANA TAX ACT WAS NOT GROUND FOR DEPORTATION AT THE TIME
HE COMMITTED THE OFFENSE, AND THAT HE WAS NOT FOREWARNED OF ALL THE
CONSEQUENCES OF HIS CRIMINAL CONDUCT.  IT IS URGED THAT WE DEPART FROM
OUR RECENT DECISIONS HOLDING THAT THE PROHIBITION OF THE EX POST FACTO
CLAUSE DOES NOT APPLY TO DEPORTATION, AND STRIKE DOWN AS
UNCONSTITUTIONAL THE RETROACTIVE APPLICATION OF THE NEW GROUNDS FOR
DEPORTATION IN SEC. 241(A)(11) OF THE IMMIGRATION AND NATIONALITY ACT
OF 1952.  WE PERCEIVE NO SPECIAL REASONS, HOWEVER, FOR OVERTURNING OUR
PRECEDENTS ON THIS MATTER, AND ADHERE TO OUR DECISIONS IN GALVAN V.
PRESS, 347 U.S. 522, AND HARISIADES V. SHAUGHNESSY, 342 U.S. 580. 
AFFIRMED. 

FN1 66 STAT. 204, 8 U.S.C. SEC. 1251(A)(11). 

FN2  66 STAT. 208, 8 U.S.C. SEC. 1251(D). 

FN3  66 STAT. 214, 8 U.S.C. SEC. 1254(A)(5). 

FN4  SECTION 7(A) OF THE ADMINISTRATIVE PROCEDURE ACT DIRECTS THAT,
IN GENERAL, ADMINISTRATIVE HEARINGS SHALL BE HELD BEFORE HEARING
OFFICERS APPOINTED PURSUANT TO SEC. 11 OF THE ACT. 

FN5  PETITIONER INTRODUCED CLIPPINGS APPEARING IN NEW ORLEANS
NEWSPAPERS RELATING TO THE STATEMENT.  WHILE THE PRESS RELEASE OF THE
ATTORNEY GENERAL WAS NOT PUT IN EVIDENCE, IT READ AS FOLLOWS: 

"ATTORNEY GENERAL JAMES P. MCGRANERY ANNOUNCED TODAY THAT CARLOS
MARCELLO OF MIAMI, FLORIDA, AND JEFFERSON PARISH, LOUISIANA, HAS BEEN
ARRESTED ON A DEPORTATION WARRANT BY THE IMMIGRATION AND NATURALIZATION
SERVICE. 

"THE ARREST IN NEW ORLEANS WAS THE FIRST MAJOR DEPORTATION MOVE
UNDERTAKEN SINCE THE NEW IMMIGRATION AND NATIONALITY ACT BECAME
EFFECTIVE DECEMBER 24, 1952.  THE ACTION WAS ANOTHER STEP IN THE
ATTORNEY GENERAL'S PROGRAM OF DENATURALIZATION AND/OR DEPORTATION OF
UNDESIRABLE PERSONS OF FOREIGN BIRTH WHO ARE ENGAGED IN RACKETEERING OR
OTHER CRIMINAL ACTIVITIES. 

"MARCELLO, BORN FEBRUARY 6, 1910, IN TUNIS, AFRICA, ENTERED THE
UNITED STATES FOR PERMANENT RESIDENCE OCTOBER 7, 1910, AT NEW ORLEANS. 

"HE ALLEGEDLY IS ENGAGED IN LARGE-SCALE SLOT MACHINE OPERATIONS AND
OTHER GAMBLING ACTIVITIES IN LOUISIANA. 

"THE DEPORTATION WARRANT WAS BASED ON HIS CONVICTION IN 1938 FOR
VIOLATION OF THE MARIJUANA ACT.  SUCH A CONVICTION IS A DEPORTABLE
OFFENSE UNDER THE NEW IMMIGRATION AND NATIONALITY ACT. 

"THE ACTION FOLLOWS LENGTHY INVESTIGATIONS BY BOTH THE FEDERAL BUREAU
OF INVESTIGATION AND THE IMMIGRATION AND NATURALIZATION SERVICE.  HIS
CONVICTION UNDER THE MARIJUANA ACT WAS ONE OF ONLY TWO IN HIS CHECKERED
CAREER.  THE OTHER CASE IN WHICH HE WAS CONVICTED WAS UNDER LOUISIANA
STATE LAW, THE CONVICTION BEING FOR ASSAULT AND ROBBERY, AND ON MAY 13,
1930, HE WAS SENTENCED TO SERVE A TERM OF 9 TO 14 YEARS IN THE
LOUISIANA STATE PENITENTIARY.  THE GOVERNOR OF LOUISIANA GAVE HIM A
FULL PARDON FOR THIS CRIME JULY 16, 1935. 

"MARCELLO SERVED A YEAR AND A DAY AFTER HIS CONVICTION UNDER THE
MARIJUANA ACT." 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
DISSENTING. 

PETITIONER WAS LAWFULLY BROUGHT TO THIS COUNTRY FORTY-FOUR YEARS AGO
WHEN HE WAS EIGHT MONTHS OLD AND HAS RESIDED HERE EVER SINCE.  HE IS
MARRIED AND HAS FOUR CHILDREN.  HIS WIFE AND CHILDREN ARE AMERICAN
CITIZENS.  IT IS SETTLED THAT HE CANNOT BE DEPORTED WITHOUT BEING
ACCORDED A FAIR HEARING IN ACCORDANCE WITH THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT.  (FN1) 

A FAIR HEARING NECESSARILY INCLUDES AN IMPARTIAL TRIBUNAL. 
PETITIONER CLAIMS THAT THE CIRCUMSTANCES HERE DEPRIVED HIM OF THAT KIND
OF TRIBUNAL.  THE OFFICER WHO CONDUCTED THE HEARINGS, DECIDED THE CASE
AND MADE RECOMMENDATIONS FOR DEPORTATION WAS CONNECTED WITH THE
IMMIGRATION AND NATURALIZATION SERVICE.  THIS HEARING OFFICER WAS
SUBJECT TO THE SUPERVISION, DIRECTION AND CONTROL OF THE ATTORNEY
GENERAL AND HIS SUBORDINATE SUPERVISORY OFFICERS OF THE IMMIGRATION
SERVICE WHO PERFORM INVESTIGATIVE AND PROSECUTORIAL FUNCTIONS.  THUS
THE HEARING OFFICER ADJUDICATED THE VERY CASE AGAINST PETITIONER WHICH
THE HEARING OFFICER'S SUPERIORS INITIATED AND PROSECUTED.  PETITIONER'S
ARGUMENT IS THAT REQUIRING HIM TO HAVE HIS CAUSE ADJUDICATED BY SUCH A
SUBORDINATE OF THE PROSECUTORS DEPRIVES HIM OF DUE PROCESS.  THIS DUE
PROCESS CHALLENGE CANNOT BE LIGHTLY DISMISSED, BUT I FIND IT
UNNECESSARY TO REST MY DISSENT ON A DETERMINATION OF THAT QUESTION. 
FOR CONGRESS IN THE ADMINISTRATIVE PROCEDURE ACT (FN2) HAS BARRED
HEARING OFFICERS FROM ADJUDICATING CASES UNDER THE CIRCUMSTANCES HERE,
AND I THINK THAT ACT IS APPLICABLE TO THIS CASE. 

OFFICERS COVERED BY THE ACT TO CONDUCT HEARINGS IF THEY ARE
"RESPONSIBLE TO OR SUBJECT TO THE SUPERVISION OR DIRECTION OF ANY
OFFICER, EMPLOYEE OR AGENT ENGAGED IN THE PERFORMANCE OF INVESTIGATIVE
OR PROSECUTING FUNCTIONS FOR ANY AGENCY."  IN 1950 WE HELD IN WONG YANG
SUNG V. MCGRATH, 339 U.S. 33, THAT DEPORTATION PROCEEDINGS MUST BE
CONDUCTED AS REQUIRED BY SEC. 5.  CONGRESS, HOWEVER, LATER IN 1950, PUT
A RIDER ON AN APPROPRIATION BILL PROVIDING THAT "PROCEEDINGS UNDER LAW
RELATING TO THE EXCLUSION OR EXPULSION OF ALIENS SHALL HEREAFTER BE
WITHOUT REGARD TO THE PROVISIONS OF SECTIONS 5, 7, AND 8 OF THE
ADMINISTRATIVE PROCEDURE ACT."  (FN3)  WERE THIS EXPRESS MODIFICATION
OF THE PROCEDURE ACT STILL IN EFFECT, WE WOULD HAVE TO REACH THE
CONSTITUTIONAL QUESTION RAISED BY PETITIONER.  BUT THIS APPROPRIATION
RIDER WAS REPEALED IN THE 1952 IMMIGRATION AND NATIONALITY ACT.  (FN4)
THE RESULT OF THIS REPEAL WAS TO LEAVE SEC. 5(C) OF THE ADMINISTRATIVE
PROCEDURE ACT APPLICABLE TO IMMIGRATION CASES UNLESS, AS THE GOVERNMENT
CONTENDS, OTHER PROVISIONS OF THE 1952 IMMIGRATION ACT MADE THE
PROCEDURE ACT INAPPLICABLE.  I THINK THIS CONTENTION OF THE GOVERNMENT
SHOULD NOT BE SUSTAINED. 

LEGISLATION SHALL BE HELD TO SUPERSEDE OR MODIFY THE PROVISIONS OF THIS
ACT EXCEPT TO THE EXTENT THAT SUCH LEGISLATION SHALL DO SO EXPRESSLY." 
THE 1950 APPROPRIATION RIDER WAS AN EXPRESS MODIFICATION OF THE PRIOR
PROCEDURE ACT, BUT UNLIKE THE COURT I FIND NO SUCH EXPRESS MODIFICATION
IN THE 1952 IMMIGRATION ACT.  INDEED THAT ACT'S LEGISLATIVE SPONSORS
DISCLAIMED ANY PURPOSE TO BRING ABOUT EVEN AN IMPLIED MODIFICATION. 

BOTH THE PROCEDURE ACT AND THE 1952 IMMIGRATION ACT WERE SPONSORED BY
SENATOR MCCARRAN AND REPRESENTATIVE WALTER.  THEIR ORIGINAL PROPOSALS
WHICH FINALLY EVOLVED INTO THE 1952 ACT DID EXPRESSLY PROVIDE THAT THE
PROCEDURE ACT SHOULD NOT CONTROL PROCEEDINGS UNDER THE IMMIGRATION
ACT.  THE PROVISION WAS THAT "NOTWITHSTANDING ANY OTHER LAW, INCLUDING
THE ACT OF JUNE 11, 1946 (THE ADMINISTRATIVE PROCEDURE ACT), THE
PROCEEDINGS SO PRESCRIBED SHALL BE THE SOLE AND EXCLUSIVE PROCEDURE FOR
DETERMINING THE DEPORTABILITY OF AN ALIEN WHO IS IN THE UNITED
STATES."  (FN5) HEARINGS ON THESE PROPOSALS BROUGHT STRONG PROTESTS
FROM SOME ORGANIZATIONS, INCLUDING THE AMERICAN BAR ASSOCIATION,
AGAINST THE PROVISION MAKING THE ADMINISTRATIVE PROCEDURE ACT
INAPPLICABLE TO DEPORTATION PROCEEDINGS.  (FN6)  AFTERWARDS THE
SPONSORS OF THE IMMIGRATION MEASURES INTRODUCED NEW BILLS WHICH
SIGNIFICANTLY OMITTED FROM THAT PROVISION THE WORDS "NOTWITHSTANDING
ANY OTHER LAW, INCLUDING THE ACT OF JUNE 11, 1946 (THE ADMINISTRATIVE
PROCEDURE ACT)."  CONSEQUENTLY WHEN THE BILL FINALLY PASSED THERE WAS
NO LANGUAGE WHICH "EXPRESSLY" SUPERSEDED OR MODIFIED THE BINDING
REQUIREMENT OF SEC. 5(C) OF THE ADMINISTRATIVE PROCEDURE ACT. 

SENATORS WHO VOTED FOR THE NEW VERSION WHICH BECAME THE 1952
IMMIGRATION ACT WERE ASSURED BY THE SENATORIAL SPONSOR: 

"THE ADMINISTRATIVE PROCEDURE ACT IS MADE APPLICABLE TO THE BILL. 
THE ADMINISTRATIVE PROCEDURE ACT PREVAILS NOW  ...  .  THE BILL
PROVIDES FOR ADMINISTRATIVE PROCEDURES AND MAKES THE ADMINISTRATIVE
PROCEDURE ACT APPLICABLE INSOFAR AS THE ADMINISTRATION OF THE BILL IS
CONCERNED."  (FN7) 

AND HOUSE MEMBERS VOTING FOR THE 1952 IMMIGRATION ACT WERE ASSURED BY
ITS HOUSE SPONSOR: 

"INSTEAD OF DESTROYING THE ADMINISTRATIVE PROCEDURES ACT, WE UNDO
WHAT THE CONGRESS DID IN A DEFICIENCY APPROPRIATION BILL SEVERAL YEARS
AGO WHEN IT LEGISLATED TO OVERTURN A DECISION OF THE SUPREME COURT,
WHICH RULED THAT THE ADMINISTRATIVE PROCEDURES ACT IS APPLICABLE IN
DEPORTATION PROCEEDINGS.  WE UNDO THAT.  SO HERE, INSTEAD OF OUR
DESTROYING THE ADMINISTRATIVE PROCEDURES ACT, WE ACTUALLY SEE THAT IT
IS REINSTATED IN EVERY INSTANCE."  (FN8) 

REASSURING THE HOUSE AGAIN THE NEXT DAY, REPRESENTATIVE WALTER SAID: 

"WE HAVE BEEN VERY ZEALOUS TO SEE THAT THE PHILOSOPHY UNDERLYING THAT
ACT (ADMINISTRATIVE PROCEDURE) IS EMBODIED IN THIS MEASURE.  I AM SURE
THAT IF THE GENTLEMAN WILL LOOK AT PAGE 163, PARAGRAPH 46, HE WILL FIND
THAT THE LAW AS IT WAS BEFORE THE HOUSE ADOPTED THIS AMENDMENT TO AN
APPROPRIATION BILL, HAS BEEN REINSTATED AND THAT THE DECISION OF THE
SUPREME COURT IN THE SUNG CASE WILL BE THE LAW OF THE LAND WHEN THIS
CODE IS ADOPTED."  (FN9) 

AS PREVIOUSLY POINTED OUT THE SUNG CASE HELD THAT SEC. 5(C) OF THE
ADMINISTRATIVE PROCEDURE ACT DID APPLY TO DEPORTATION CASES. 

OTHER STATEMENTS IN THE DISCUSSIONS OF THE 1952 ACT MAY LOOK IN A
DIFFERENT DIRECTION FROM THE STATEMENTS JUST QUOTED.  BUT WHATEVER WAS
SAID, NO LANGUAGE IN THE 1952 IMMIGRATION ACT EXPRESSLY AUTHORIZES
DEPORTATION CASES TO BE HEARD, CONTRARY TO THE ADMINISTRATIVE PROCEDURE
ACT, BY HEARING OFFICERS WHO ARE THE DEPENDENT SUBORDINATES OF THE
IMMIGRATION AGENCY'S PROSECUTORIAL STAFF.  THE IDEA OF LETTING A
PROSECUTOR JUDGE THE VERY CASE HE PROSECUTES OR SUPERVISE AND CONTROL
THE JOB OF THE JUDGE BEFORE WHOM HIS CASE IS PRESENTED IS WHOLLY
INCONSISTENT WITH OUR CONCEPTS OF JUSTICE.  IT WAS THIS PRINCIPLE ON
WHICH CONGRESS PRESUMABLY ACTED IN PASSING THE PROCEDURE ACT.  ONLY THE
OTHER DAY WE HAD POINTED OUT TO US AN INSTANCE IN WHICH THE IMMIGRATION
AUTHORITIES HAD RELIEVED AN IMMIGRATION HEARING OFFICER FROM HIS DUTIES
BECAUSE THEY BELIEVED THAT THE HEARING OFFICER HAD FAILED ADEQUATELY TO
PRESENT AVAILABLE DEROGATORY INFORMATION AGAINST AN ALIEN.  (FN10)  IT
IS HARD TO DEFEND THE FAIRNESS OF A PRACTICE THAT SUBJECTS JUDGES TO
THE POWER AND CONTROL OF PROSECUTORS.  HUMAN NATURE HAS NOT PUT AN
IMPASSABLE BARRIER BETWEEN SUBJECTION AND SUBSERVIENCY, PARTICULARLY
WHEN JOB SECURITY IS AT STAKE.  THAT CONGRESS WAS AWARE OF THIS IS
SHOWN BY THE PROCEDURE ACT, AND WE SHOULD NOT CONSTRUE THE IMMIGRATION
ACT ON A CONTRARY ASSUMPTION. 

I WOULD REVERSE THIS CASE. 

FN1  JAPANESE IMMIGRANT CASE, 189 U.S. 86, 100-101; WONG YANG SUNG V.
MCGRATH, 339 U.S. 33, 49-51. 

FN2  60 STAT. 237, 5 U.S.C. SECS. 1001-1011. 

FN3  64 STAT. 1048, 8 U.S.C. (1946 ED.)  SEC.  155A. 

FN4  66 STAT. 166, 8 U.S.C. SEC. 1101 ET SEQ. 

FN5  EMPHASIS SUPPLIED. 

FN6  JOINT HEARINGS BEFORE THE SUBCOMMITTEES OF THE COMMITTEES ON THE
JUDICIARY ON S. 716, H.R. 2379, H.R. 2816, 82D CONG., 1ST SESS. 526
537, 591, 691-692, 739. 

FN7  98 CONG. REC. 5778, 5779. 

FN8  98 CONG. REC. 4302. 

FN9  98 CONG. REC. 4416. 

FN10  SHAUGHNESSY V. ACCARDI, 349 U.S. 280, 292 (DISSENTING
OPINION). 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE CONSTITUTION PLACES A BAN ON ALL EX POST FACTO LAWS.  THERE ARE
NO QUALIFICATIONS OR EXCEPTIONS.  ARTICLE I, SEC. 9, APPLICABLE TO THE
FEDERAL GOVERNMENT, SPEAKS IN ABSOLUTE TERMS:  "NO  ...  EX POST FACTO
LAW SHALL BE PASSED."  (FN1)  THE PROHIBITION IS THE SAME WHETHER A
CITIZEN OR AN ALIEN IS THE VICTIM.  SO FAR AS EX POST FACTO LAWS ARE
CONCERNED, THE PROHIBITION IS ALL-INCLUSIVE AND COMPLETE. 

THERE IS A SCHOOL OF THOUGHT THAT THE EX POST FACTO CLAUSE INCLUDES
ALL RETROACTIVE LEGISLATION, CIVIL AS WELL AS CRIMINAL.  SEE CROSSKEY,
POLITICS AND THE CONSTITUTION, VOL. I, C. XI; VOL. II, P. 1053.  MR.
JUSTICE JOHNSON TOOK THAT VIEW, MAINTAINING THAT A RESTRICTION OF THE
CLAUSE TO CRIMINAL ACTS WAS UNWARRANTED.  SEE OGDEN V. SAUNDERS, 12
WHEAT.  213, 271, 286; SATTERLEE V. MATTHEWSON, 2 PET. 380, 416, 681
(APPENDIX).  THE COURT, HOWEVER, HAS STATED OVER AND AGAIN SINCE CALDER
V. BULL, 3 DALL.  386, THAT THE EX POST FACTO CLAUSE APPLIES ONLY IN
CRIMINAL CASES.  SEE CARPENTER V. COMMONWEALTH, 17 HOW.  456, 463;
JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 242; BUGAJEWITZ V. ADAMS,
228 U.S. 585, 591; MAHLER V. EBY, 264 U.S. 32, 39. 

AT THE SAME TIME, THERE WAS A PARALLEL DEVELOPMENT IN THE FIELD OF EX
POST FACTO LEGISLATION.  CHIEF JUSTICE MARSHALL IN FLETCHER V. PECK, 6
CRANCH 87, 138-139, REFUSED TO CONSTRUE THE EX POST FACTO CLAUSE
NARROWLY AND RESTRICT IT TO CRIMINAL PROSECUTIONS.  THE FLETCHER CASE
HELD THAT PROPERTY RIGHTS THAT HAD VESTED COULD NOT BE DISPLACED BY
LEGISLATIVE FIAT.  THAT LIBERAL VIEW PERSISTED.  IT WAS GIVEN DRAMATIC
APPLICATION IN POST-CIVIL WAR DAYS.  THE LEADING CASES ARE CUMMINGS V.
MISSOURI, 4 WALL.  277, AND EX PARTE GARLAND, 4 WALL.  333, WHERE THE
RIGHT TO PRACTICE A PERSON'S PROFESSION WAS SOUGHT TO BE TAKEN AWAY, IN
THE FIRST CASE BY A STATE, IN THE SECOND BY THE FEDERAL GOVERNMENT, FOR
ACTS WHICH CARRIED NO SUCH PENALTY WHEN THEY WERE COMMITTED.  THE
ESSENCE OF THOSE PROCEEDINGS WAS THE REVOCATION OF A LICENSE.  YET THE
COURT HELD THEM TO BE VIOLATIVE OF THE EX POST FACTO CLAUSES BECAUSE
THEY WERE "PUNISHMENT" FOR ACTS CARRYING NO SUCH SANCTIONS WHEN DONE. 

DEPORTATION MAY BE AS SEVERE A PUNISHMENT AS LOSS OF LIVELIHOOD.  SEE
BRIDGES V. WIXON, 326 U.S. 135, 154; DELGADILLO V. CARMICHAEL, 332 U.S.
388, 391.  AS MR. JUSTICE BRANDEIS STATED IN NG FUNG HO V. WHITE, 259
U.S. 276, 284, DEPORTATION MAY RESULT "IN LOSS OF BOTH PROPERTY AND
LIFE; OR OF ALL THAT MAKES LIFE WORTH LIVING." 

I FIND NOTHING IN THE CONSTITUTION EXEMPTING ALIENS FROM THE
OPERATION OF EX POST FACTO LAWS.  I WOULD THINK, THEREFORE, THAT, IF
CONGRESS TODAY PASSED A LAW MAKING ANY ALIEN WHO HAD EVER VIOLATED ANY
TRAFFIC LAW IN THIS COUNTRY DEPORTABLE, THE LAW WOULD BE EX POST
FACTO.  CONGRESS, OF COURSE, HAS BROAD POWERS OVER THE DEPORTATION OF
ALIENS.  SEE HARISIADES V. SHAUGHNESSY, 342 U.S. 580.  BUT THE BARE
FACT OF A TRAFFIC VIOLATION WOULD NOT REASONABLY BE REGARDED AS
DEMONSTRATING THAT SUCH A PERSON WAS PRESENTLY AN UNDESIRABLE
RESIDENT.  IT WOULD RELATE SOLELY TO AN HISTORIC INCIDENT THAT CARRIED
NO SUCH PUNISHMENT WHEN COMMITTED.  THE PRESENT ACT HAS THE SAME VICE. 
THE ALIEN IS NOT DEPORTED AFTER A HEARING AND ON A FINDING BY THE
AUTHORITIES THAT HE IS UNDESIRABLE FOR CONTINUED RESIDENCE HERE.  IT IS
THE BARE PAST VIOLATION OF THE NARCOTIC LAWS THAT IS SUFFICIENT AND
CONCLUSIVE, HOWEVER ISOLATED OR INSIGNIFICANT SUCH VIOLATION MAY HAVE
BEEN.  8 U.S.C. SEC. 1251.  THE CASE IS, THEREFORE, DIFFERENT FROM THE
EARLIER DEPORTATION CASES WHERE THE PAST ACTS WERE MERE COUNTERS IN
WEIGHING PRESENT FITNESS.  (FN2) 

IN THE ABSENCE OF A RATIONAL CONNECTION BETWEEN THE IMPOSITION OF THE
PENALTY OF DEPORTATION AND THE PRESENT DESIRABILITY OF THE ALIEN AS A
RESIDENT IN THIS COUNTRY, THE CONCLUSION IS INESCAPABLE THAT THE ACT
MERELY ADDS A NEW PUNISHMENT FOR A PAST OFFENSE.  THAT IS THE VERY
INJUSTICE THAT THE EX POST FACTO CLAUSE WAS DESIGNED TO PREVENT. 

FN1  THE BAN AGAINST EX POST FACTO STATE LEGISLATION IS ALSO
ABSOLUTE: 

"NO STATE SHALL  ...  PASS ANY  ...  EX POST FACTO LAW  ...  ."  ART.
I, SEC. 10. 

FN2  IN MAHLER V. EBY, 264 U.S. 32, THE ACT IN QUESTION PROVIDED THAT
ALIENS IN CERTAIN CLASSES (INCLUDING THOSE CONVICTED UNDER SPECIFIED
STATUTES) SHOULD BE DEPORTED IF THE SECRETARY OF LABOR FOUND THOSE
ALIENS TO BE UNDESIRABLE RESIDENTS OF THE UNITED STATES.  THUS THE
PRIMARY BASIS FOR DEPORTATION WAS A FINDING BY THE APPROPRIATE
ADMINISTRATIVE OFFICIAL THAT AN ALIEN WAS PRESENTLY AN UNDESIRABLE
RESIDENT.  IN BUGAJEWITZ V. ADAMS, 228 U.S. 585, THE COURT STATED WITH
REGARD TO THE ALIEN TO BE DEPORTED, "  ...  WE MUST TAKE IT, AT LEAST,
THAT SHE IS A PROSTITUTE NOW," AND CONCLUDED THAT, WITH REGARD TO HER,
IT WAS "NOT NECESSARY TO CONSTRUE THE STATUTE AS HAVING ANY
RETROSPECTIVE EFFECT."  ID., AT 590, 591. 

JOHANNESSEN V. UNITED STATES, 225 U.S. 227, INVOLVED AN ATTEMPT TO
CANCEL A CERTIFICATE OF CITIZENSHIP ON THE GROUND IT HAD BEEN
FRAUDULENTLY AND ILLEGALLY PROCURED.  THE COURT POINTED OUT THAT THE
ACT DID NOT IMPOSE A NEW PENALTY ON THE WRONGDOER BUT MERELY PROVIDED A
METHOD FOR DEPRIVING HIM OF A PRIVILEGE "THAT WAS NEVER RIGHTFULLY
HIS."  ID., AT 242-243. 
..END :



QUINN V. UNITED STATES 349 U.S. 155 


NO. 8.  ARGUED APRIL 4-5, 1955 - DECIDED MAY 23, 1955 - 91 U.S. APP.
D.C. 344, 203 F.2D 20, REVERSED. 


PETITIONER AND TWO OTHERS WERE SUMMONED TO TESTIFY BEFORE A
CONGRESSIONAL INVESTIGATING COMMITTEE.   ONE OF THEM REFUSED TO SAY
WHETHER HE WAS OR HAD BEEN A MEMBER OF THE COMMUNIST PARTY, BASING HIS
REFUSAL ON "THE FIRST AND FIFTH AMENDMENTS," AS WELL AS "THE FIRST
AMENDMENT TO THE CONSTITUTION, SUPPLEMENTED BY THE FIFTH AMENDMENT." 
PETITIONER ADOPTED THE OTHER'S STATEMENT AS HIS OWN AND REFUSED TO
ANSWER THE SAME QUESTION.  THE COMMITTEE DID NOT ASK HIM TO STATE MORE
SPECIFICALLY THE GROUND FOR HIS REFUSAL TO ANSWER AND DID NOT
SPECIFICALLY OVERRULE HIS OBJECTION OR DIRECT HIM TO ANSWER.  HELD:  IN
HIS TRIAL FOR CONTEMPT OF CONGRESS UNDER 2 U.S.C. SEC. 192, THE
DISTRICT COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL.  PP. 156
170. 

1. PETITIONER'S REFERENCES TO THE FIFTH AMENDMENT SUFFICIENTLY
INVOKED HIS CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  PP.
160-165. 

(A)  THE CONSTITUTIONAL GUARANTY AGAINST SELF-INCRIMINATION MUST BE
CONSTRUED LIBERALLY IN FAVOR OF THE RIGHT IT WAS INTENDED TO SECURE -
ESPECIALLY IN CRIMINAL TRIALS FOR REFUSAL TO ANSWER.  PP. 161-162. 

(B)  AN ANSWER TO THE QUESTION WHETHER HE WAS A MEMBER OF THE
COMMUNIST PARTY MIGHT HAVE TENDED TO INCRIMINATE PETITIONER.  BLAU V.
UNITED STATES, 340 U.S. 159.  P. 162. 

(C)  IF AN OBJECTION TO A QUESTION IS MADE IN ANY LANUGAGE THAT A
COMMITTEE MAY REASONABLY BE EXPECTED TO UNDERSTAND AS AN ATTEMPT TO
INVOKE THE PRIVILEGE, IT MUST BE RESPECTED BOTH BY THE COMMITTEE AND BY
A COURT IN A PROSECUTION UNDER SEC. 192.  PP. 162-163. 

(D)  THE MERE FACT THAT PETITIONER ALSO RELIED ON THE FIRST AMENDMENT
DID NOT PRECLUDE HIS RELIANCE ON THE FIFTH AMENDMENT AS WELL.  P. 163. 

(E)  PETITIONER'S REFERENCES TO THE FIFTH AMENDMENT WERE SUFFICIENT
TO PUT THE COMMITTEE ON NOTICE OF AN APPARENT CLAIM OF THE PRIVILEGE;
AND IT THEN BECAME INCUMBENT ON THE COMMITTEE EITHER TO ACCEPT THE
CLAIM OR TO ASK PETITIONER WHETHER HE WAS IN FACT INVOKING THE
PRIVILEGE.  PP. 163-165. 

2.  ON THE RECORD IN THIS CASE, THERE WAS NOT ADEQUATE PROOF OF A
DELIBERATE INTENTIONAL REFUSAL TO ANSWER, WHICH IS AN ESSENTIAL ELEMENT
OF A VIOLATION OF 2 U.S.C. SEC. 192.  PP. 165-170. 

(A)  THIS ELEMENT OF THE OFFENSE, LIKE ANY OTHER, MUST BE PROVED
BEYOND A REASONABLE DOUBT.  PP. 165. 

(B)  UNLESS THE WITNESS IS CLEARLY APPRISED THAT THE COMMITTEE
DEMANDS HIS ANSWER NOTWITHSTANDING HIS OBJECTION, THERE CAN BE NO
CONVICTION UNDER SEC. 192 FOR HIS REFUSAL TO ANSWER.  PP. 165-166. 

(C)  THERE IS NOTHING IN THE RECORD OF THE COMMITTEE HEARING FROM
WHICH PETITIONER COULD HAVE DETERMINED WITH A REASONABLE DEGREE OF
CERTAINTY THAT THE COMMITTEE DEMANDED HIS ANSWER DESPITE HIS
OBJECTION.  PP. 166-167. 

(D)  BY THE ENACTMENT OF 2 U.S.C. SEC. 192, CONGRESS DID NOT INTEND
TO DISPENSE WITH THE TRADITIONAL REQUIREMENT THAT THE WITNESS MUST BE
CLEARLY APPRISED THAT AN ANSWER IS DEMANDED NOTWITHSTANDING HIS
OBJECTION.  PP. 167-170. 

QUINN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF CONTEMPT OF CONGRESS UNDER 2 U.S.C. SEC.
192 IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  SECTION 192
PROVIDES FOR THE PUNISHMENT OF ANY WITNESS BEFORE A CONGRESSIONAL
COMMITTEE "WHO  ...  REFUSES TO ANSWER ANY QUESTION PERTINENT TO THE
QUESTION UNDER INQUIRY  ...  ."  (FN1)  ON APPEAL, THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT REVERSED THE CONVICTION AND
REMANDED THE CASE FOR A NEW TRIAL.  (FN2)  CLAIMING THAT THE COURT OF
APPEALS SHOULD HAVE DIRECTED AN ACQUITTAL, PETITIONER APPLIED TO THIS
COURT FOR CERTIORARI.  WE GRANTED THE WRIT BECAUSE OF THE FUNDAMENTAL
AND RECURRENT CHARACTER OF THE QUESTIONS PRESENTED.  (FN3) 

PURSUANT TO SUBPOENA, PETITIONER APPEARED ON AUGUST 10, 1949, BEFORE
A SUBCOMMITTEE OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE HOUSE
OF REPRESENTATIVES.  PETITIONER WAS THEN A MEMBER AND FIELD
REPRESENTATIVE OF THE UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF
AMERICA.  ALSO SUBPOENAED TO APPEAR ON THAT DAY WERE THOMAS J.
FITZPATRICK AND FRANK PANZINO, TWO OFFICERS OF THE SAME UNION.  AT THE
OUTSET OF THE HEARINGS, COUNSEL FOR THE COMMITTEE ANNOUNCED THAT THE
PURPOSE OF THE INVESTIGATION WAS TO INQUIRE INTO "THE QUESTION OF
COMMUNIST AFFILIATION OR ASSOCIATION OF CERTAIN MEMBERS" OF THE UNION
AND "THE ADVISABILITY OF TIGHTENING PRESENT SECURITY REQUIREMENTS IN
INDUSTRIAL PLANTS WORKING ON CERTAIN GOVERNMENT CONTRACTS."  (FN4)  ALL
THREE WITNESSES WERE ASKED QUESTIONS CONCERNING ALLEGED MEMBERSHIP IN
THE COMMUNIST PARTY.  ALL THREE DECLINED TO ANSWER. 

FITZPATRICK WAS THE FIRST TO BE CALLED TO TESTIFY.  HE BASED HIS
REFUSAL TO ANSWER ON "THE FIRST AND FIFTH AMENDMENTS" AS WELL AS "THE
FIRST AMENDMENT TO THE CONSTITUTION, SUPPLEMENTED BY THE FIFTH
AMENDMENT."  (FN5)  IMMEDIATELY FOLLOWING FITZPATRICK'S TESTIMONY,
PANZINO WAS CALLED TO THE STAND.  IN RESPONSE TO THE IDENTICAL
QUESTIONS PUT TO FITZPATRICK, PANZINO SPECIFICALLY ADOPTED AS HIS OWN
THE GROUNDS RELIED UPON BY FITZPATRICK.  (FN6)  IN ADDITION, AT ONE
POINT IN HIS TESTIMONY, PANZINO STATED THAT "I THINK AGAIN, MR.
CHAIRMAN, UNDER THE FIFTH AMENDMENT, THAT IS MY OWN PERSONAL BELIEF." 
(FN7)  ON THE FOLLOWING DAY, PETITIONER, UNACCOMPANIED BY COUNSEL, WAS
CALLED TO THE STAND AND WAS ALSO ASKED WHETHER HE HAD EVER BEEN A
MEMBER OF THE COMMUNIST PARTY.  LIKE PANZINO BEFORE HIM, HE DECLINED TO
ANSWER, SPECIFICALLY ADOPTING AS HIS OWN THE GROUNDS RELIED UPON BY
FITZPATRICK.   (FN8) 

ON NOVEMBER 20, 1950, ALL THREE WITNESSES WERE INDICTED UNDER SEC. 192
FOR THEIR REFUSALS TO ANSWER.  (FN9)  THE THREE CASES WERE TRIED BEFORE
DIFFERENT JUDGES, EACH SITTING WITHOUT A JURY.  FITZPATRICK AND PANZINO
WERE ACQUITTED.  IN FITZPATRICK'S CASE, IT WAS HELD THAT HIS REFERENCES
TO "THE FIRST AND FIFTH AMENDMENTS" AND "THE FIRST AMENDMENT TO THE
CONSTITUTION, SUPPLEMENTED BY THE FIFTH AMENDMENT" CONSTITUTED AN
ADEQUATE MEANS OF INVOKING THE SELF-INCRIMINATION CLAUSE OF THE FIFTH
AMENDMENT.  (FN10)  SIMILARLY, IN PANZINO'S CASE, IT WAS HELD THAT HIS
REFERENCE TO "THE FIFTH AMENDMENT" WAS SUFFICIENT TO PLEAD THE
PRIVILEGE.  (FN11)  IN PETITIONER'S CASE, HOWEVER, THE DISTRICT COURT
HELD THAT A WITNESS MAY NOT INCORPORATE THE POSITION OF ANOTHER WITNESS
AND REJECTED PETITIONER'S DEFENSE BASED ON THE SELF-INCRIMINATION
CLAUSE.  (FN12)  PETITIONER WAS ACCORDINGLY CONVICTED AND SENTENCED TO
A TERM OF SIX MONTHS IN JAIL AND A FINE OF $500. 

IN REVERSING THIS CONVICTION, THE COURT OF APPEALS, SITTING EN BANC,
HELD THAT "NO FORMULA OR SPECIFIC TERM OR EXPRESSION IS REQUIRED" IN
ORDER TO PLEAD THE PRIVILEGE AND THAT A WITNESS MAY ADOPT AS HIS OWN A
PLEA MADE BY A PREVIOUS WITNESS.  (FN13)  THUS THE COURT OF APPEALS
VIEWED THE PRINCIPAL ISSUE IN THE CASE AS "WHETHER FITZPATRICK DID OR
DID NOT CLAIM THE PRIVILEGE."  (FN14)  ON THIS ISSUE, A MAJORITY OF THE
COURT OF APPEALS EXPRESSED NO VIEW.  THEY AGREED THAT A REVERSAL
WITHOUT MORE WOULD BE IN ORDER IF THEY "WERE OF CLEAR OPINION THAT
FITZPATRICK, AND THEREFORE QUINN, DID CLAIM THE PRIVILEGE."  BUT THEY
WERE "NOT OF THAT CLEAR OPINION."  (FN15)  THE COURT OF APPEALS
THEREFORE ORDERED A NEW TRIAL FOR DETERMINATION OF THE ISSUE BY THE
DISTRICT COURT.  (FN16)  THE COURT OF APPEALS ALSO DIRECTED THE
DISTRICT COURT ON RETRIAL TO DETERMINE WHETHER PETITIONER "WAS AWARE OF
THE INTENTION OF HIS INQUIRER THAT ANSWERS WERE REQUIRED DESPITE HIS
OBJECTIONS."  (FN17) IN THAT REGARD, HOWEVER, IT REJECTED PETITIONER'S
CONTENTION THAT A WITNESS CANNOT BE CONVICTED UNDER SEC. 192 FOR A
REFUSAL TO ANSWER UNLESS THE COMMITTEE OVERRULED HIS OBJECTIONS AND
SPECIFICALLY DIRECTED HIM TO ANSWER.  (FN18) 

IT IS FROM THAT DECISION THAT THIS COURT GRANTED CERTIORARI. 

     I. 

THERE CAN BE NO DOUBT AS TO THE POWER OF CONGRESS, BY ITSELF OR
THROUGH ITS COMMITTEES, TO INVESTIGATE MATTERS AND CONDITIONS RELATING
TO CONTEMPLATED LEGISLATION.  THIS POWER, DEEPLY ROOTED IN AMERICAN AND
ENGLISH INSTITUTIONS, IS INDEED CO-EXTENSIVE WITH THE POWER TO
LEGISLATE.  WITHOUT THE POWER TO INVESTIGATE - INCLUDING OF COURSE THE
AUTHORITY TO COMPEL TESTIMONY, EITHER THROUGH ITS OWN PROCESSES (FN19)
OR THROUGH JUDICIAL TRIAL (FN20) - CONGRESS COULD BE SERIOUSLY
HANDICAPPED IN ITS EFFORTS TO EXERCISE ITS CONSTITUTIONAL FUNCTION
WISELY AND EFFECTIVELY.  (FN21) 

BUT THE POWER TO INVESTIGATE, BROAD AS IT MAY BE, IS ALSO SUBJECT TO
RECOGNIZED LIMITATIONS.  IT CANNOT BE USED TO INQUIRE INTO PRIVATE
AFFAIRS UNRELATED TO A VALID LEGISLATIVE PURPOSE.  (FN22) NOR DOES IT
EXTEND TO AN AREA IN WHICH CONGRESS IS FORBIDDEN TO LEGISLATE.  (FN23)
SIMILARLY, THE POWER TO INVESTIGATE MUST NOT BE CONFUSED WITH ANY OF
THE POWERS OF LAW ENFORCEMENT; THOSE POWERS ARE ASSIGNED UNDER OUR
CONSTITUTION TO THE EXECUTIVE AND THE JUDICIARY.  (FN24)  STILL FURTHER
LIMITATIONS ON THE POWER TO INVESTIGATE ARE FOUND IN THE SPECIFIC
INDIVIDUAL GUARANTEES OF THE BILL OF RIGHTS, SUCH AS THE FIFTH
AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION WHICH IS IN ISSUE
HERE.  (FN25) 

THE PRIVILEGE AGAINST SELF-INCRIMINATION IS A RIGHT THAT WAS HARD
EARNED BY OUR FOREFATHERS.  THE REASONS FOR ITS INCLUSION IN THE
CONSTITUTION - AND THE NECESSITIES FOR ITS PRESERVATION - ARE TO BE
FOUND IN THE LESSONS OF HISTORY.  (FN26)  AS EARLY AS 1650, REMEMBRANCE
OF THE HORROR OF STAR CHAMBER PROCEEDINGS A DECADE BEFORE HAD FIRMLY
ESTABLISHED THE PRIVILEGE IN THE COMMON LAW OF ENGLAND.  TRANSPLANTED
TO THIS COUNTRY AS PART OF OUR LEGAL HERITAGE, IT SOON MADE ITS WAY
INTO VARIOUS STATE CONSTITUTIONS AND ULTIMATELY IN 1791 INTO THE
FEDERAL BILL OF RIGHTS.  THE PRIVILEGE, THIS COURT HAS STATED, "WAS
GENERALLY REGARDED THEN, AS NOW, AS A PRIVILEGE OF GREAT VALUE, A
PROTECTION TO THE INNOCENT THOUGH A SHELTER TO THE GUILTY, AND A
SAFEGUARD AGAINST HEEDLESS, UNFOUNDED OR TYRANNICAL PROSECUTIONS." 
(FN27)  CO-EQUALLY WITH OUR OTHER CONSTITUTIONAL GUARANTEES, THE SELF
INCRIMINATION CLAUSE "MUST BE ACCORDED LIBERAL CONSTRUCTION IN FAVOR OF
THE RIGHT IT WAS INTENDED TO SECURE."  (FN28)  SUCH LIBERAL
CONSTRUCTION IS PARTICULARLY WARRANTED IN A PROSECUTION OF A WITNESS
FOR A REFUSAL TO ANSWER, SINCE THE RESPECT NORMALLY ACCORDED THE
PRIVILEGE IS THEN BUTTRESSED BY THE PRESUMPTION OF INNOCENCE ACCORDED A
DEFENDANT IN A CRIMINAL TRIAL.  TO APPLY THE PRIVILEGE NARROWLY OR
BEGRUDGINGLY - TO TREAT IT AS AN HISTORICAL RELIC, AT THE MOST MERELY
TO BE TOLERATED - IS TO IGNORE ITS DEVELOPMENT AND PURPOSE. 

IN THE INSTANT CASE PETITIONER WAS CONVICTED FOR REFUSING TO ANSWER
THE COMMITTEE'S QUESTION AS TO HIS ALLEGED MEMBERSHIP IN THE COMMUNIST
PARTY.  CLEARLY AN ANSWER TO THE QUESTION MIGHT HAVE TENDED TO
INCRIMINATE HIM.  (FN29)  AS A CONSEQUENCE, PETITIONER WAS ENTITLED TO
CLAIM THE PRIVILEGE.  THE PRINCIPAL ISSUE HERE IS WHETHER OR NOT HE
DID. 

IT IS AGREED BY ALL THAT A CLAIM OF THE PRIVILEGE DOES NOT REQUIRE
ANY SPECIAL COMBINATION OF WORDS.  (FN30)  PLAINLY A WITNESS NEED NOT
HAVE THE SKILL OF A LAWYER TO INVOKE THE PROTECTION OF THE SELF
INCRIMINATION CLAUSE.  IF AN OBJECTION TO A QUESTION IS MADE IN ANY
LANGUAGE THAT A COMMITTEE MAY REASONABLY BE EXPECTED TO UNDERSTAND AS
AN ATTEMPT TO INVOKE THE PRIVILEGE, IT MUST BE RESPECTED BOTH BY THE
COMMITTEE AND BY A COURT IN A PROSECUTION UNDER SEC. 192. 

HERE PETITIONER, BY ADOPTING THE GROUNDS RELIED UPON BY FITZPATRICK,
BASED HIS REFUSAL TO ANSWER ON "THE FIRST AND FIFTH AMENDMENTS" AND
"THE FIRST AMENDMENT TO THE CONSTITUTION, SUPPLEMENTED BY THE FIFTH
AMENDMENT."  THE GOVERNMENT CONCEDES - AS WE THINK IT MUST - THAT A
WITNESS MAY INVOKE THE PRIVILEGE BY STATING "I REFUSE TO TESTIFY ON THE
GROUND OF THE FIFTH AMENDMENT."  SURELY, IN POPULAR PARLANCE AND EVEN
IN LEGAL LITERATURE, THE TERM "FIFTH AMENDMENT" IN THE CONTEXT OF OUR
TIME IS COMMONLY REGARDED AS BEING SYNONYMOUS WITH THE PRIVILEGE
AGAINST SELF-INCRIMINATION.  THE GOVERNMENT ARGUES, HOWEVER, THAT THE
REFERENCES TO THE FIFTH AMENDMENT IN THE INSTANT CASE WERE INADEQUATE
TO INVOKE THE PRIVILEGE BECAUSE FITZPATRICK'S STATEMENTS ARE MORE
REASONABLY UNDERSTOOD AS INVOKING RIGHTS UNDER THE FIRST AMENDMENT.  WE
FIND THE GOVERNMENT'S ARGUMENT UNTENABLE.  THE MERE FACT THAT
FITZPATRICK AND PETITIONER ALSO RELIED ON THE FIRST AMENDMENT DOES NOT
PRECLUDE THEIR RELIANCE ON THE FIFTH AMENDMENT AS WELL.  (FN31)  IF A
WITNESS URGES TWO CONSTITUTIONAL OBJECTIONS TO A COMMITTEE'S LINE OF
QUESTIONING, HE IS NOT BOUND AT HIS PERIL TO CHOOSE BETWEEN THEM.  BY
PRESSING BOTH OBJECTIONS, HE DOES NOT LOSE A PRIVILEGE WHICH WOULD HAVE
BEEN VALID IF HE HAD ONLY RELIED ON ONE. 

THE GOVERNMENT, MOREOVER, APPARENTLY CONCEDES THAT PETITIONER
INTENDED TO INVOKE THE PRIVILEGE.  IN ITS BRIEF THE GOVERNMENT POINTS
OUT "THE PROBABILITY THAT PETITIONER'S AMBIGUOUS REFERENCES TO THE
FIFTH AMENDMENT  ... WERE PHRASED DELIBERATELY IN SUCH VAGUE TERMS SO
AS TO ENABLE PETITIONER ...  TO OBTAIN THE BENEFIT OF THE PRIVILEGE
WITHOUT INCURRING THE POPULAR OPPROBRIUM WHICH OFTEN ATTACHES TO ITS
EXERCISE."  (FN32)  BUT THE FACT THAT A WITNESS EXPRESSES HIS INTENTION
IN VAGUE TERMS IS IMMATERIAL SO LONG AS THE CLAIM IS SUFFICIENTLY
DEFINITE TO APPRISE THE COMMITTEE OF HIS INTENTION.  AS EVERYONE
AGREES, NO RITUALISTIC FORMULA IS NECESSARY IN ORDER TO INVOKE THE
PRIVILEGE.  IN THE INSTANT CASE, QUINN'S REFERENCES TO THE FIFTH
AMENDMENT WERE CLEARLY SUFFICIENT TO PUT THE COMMITTEE ON NOTICE OF AN
APPARENT CLAIM OF THE PRIVILEGE.  IT THEN BECAME INCUMBENT ON THE
COMMITTEE EITHER TO ACCEPT THE CLAIM OR TO ASK PETITIONER WHETHER HE
WAS IN FACT INVOKING THE PRIVILEGE.  PARTICULARLY IS THIS SO IF IT IS
TRUE, AS THE GOVERNMENT CONTENDS, THAT PETITIONER FEARED THE STIGMA
THAT MIGHT RESULT FROM A FORTHRIGHT CLAIM OF HIS CONSTITUTIONAL RIGHT
TO REFUSE TO TESTIFY.  IT IS PRECISELY AT SUCH TIMES - WHEN THE
PRIVILEGE IS UNDER ATTACK BY THOSE WHO WRONGLY CONCEIVE OF IT AS MERELY
A SHIELD FOR THE GUILTY - THAT GOVERNMENTAL BODIES MUST BE MOST
SCRUPULOUS IN PROTECTING ITS EXERCISE. 

THIS RULING BY NO MEANS LEAVES A CONGRESSIONAL COMMITTEE DEFENSELESS
AT THE HANDS OF A SCHEMING WITNESS INTENT ON DECEPTION.  WHEN A WITNESS
DECLINES TO ANSWER A QUESTION BECAUSE OF CONSTITUTIONAL OBJECTIONS AND
THE LANGUAGE USED IS NOT FREE FROM DOUBT, THE WAY IS ALWAYS OPEN FOR
THE COMMITTEE TO INQUIRE INTO THE NATURE OF THE CLAIM BEFORE MAKING A
RULING.  IF THE WITNESS UNEQUIVOCALLY AND INTELLIGENTLY WAIVES ANY
OBJECTION BASED ON THE SELF-INCRIMINATION CLAUSE, OR IF THE WITNESS
REFUSES A COMMITTEE REQUEST TO STATE WHETHER HE RELIES ON THE SELF
INCRIMINATION CLAUSE, HE CANNOT LATER INVOKE ITS PROTECTION IN A
PROSECUTION FOR CONTEMPT FOR REFUSING TO ANSWER THAT QUESTION.  HERE
THE COMMITTEE MADE NO ATTEMT TO HAVE PETITIONER PARTICULARIZE HIS
OBJECTION.  UNDER THESE CIRCUMSTANCES, WE MUST HOLD THAT PETITIONER'S
REFERENCES TO THE FIFTH AMENDMENT WERE SUFFICIENT TO INVOKE THE
PRIVILEGE AND THAT THE COURT BELOW ERRED IN FAILING TO DIRECT A
JUDGMENT OF ACQUITTAL. 

                                       II. 

THERE IS YET A SECOND GROUND FOR OUR DECISION. 

CRIMINAL INTENT - IN THIS INSTANCE, A DELIBERATE, INTENTIONAL REFUSAL
TO ANSWER.  (FN33)  THIS ELEMENT OF THE OFFENSE, LIKE ANY OTHER, MUST
BE PROVED BEYOND A REASONABLE DOUBT.  PETITIONER CONTENDS THAT SUCH
PROOF WAS NOT, AND CANNOT BE, MADE IN THIS CASE. 

CLEARLY NOT EVERY REFUSAL TO ANSWER A QUESTION PROPOUNDED BY A
CONGRESSIONAL COMMITTEE SUBJECTS A WITNESS TO PROSECUTION UNDER SEC.
192.  THUS IF HE RAISES AN OBJECTION TO A CERTAIN QUESTION - FOR
EXAMPLE, LACK OF PERTINENCY OR THE PRIVILEGE AGAINST SELF-INCRIMINATION
- THE COMMITTEE MAY SUSTAIN THE OBJECTION AND ABANDON THE QUESTION,
EVEN THOUGH THE OBJECTION MIGHT ACTUALLY BE WITHOUT MERIT.  IN SUCH AN
INSTANCE, THE WITNESS' REFUSAL TO ANSWER IS NOT CONTUMACIOUS, FOR THERE
IS LACKING THE REQUISITE CRIMINAL INTENT.  OR THE COMMITTEE MAY
DISALLOW THE OBJECTION AND THUS GIVE THE WITNESS THE CHOICE OF
ANSWERING OR NOT.  GIVEN SUCH A CHOICE, THE WITNESS MAY RECEDE FROM HIS
POSITION AND ANSWER THE QUESTION.  AND IF HE DOES NOT THEN ANSWER, IT
MAY FAIRLY BE SAID THAT THE FOUNDATION HAS BEEN LAID FOR A FINDING OF
CRIMINAL INTENT TO VIOLATE SEC.  192.  IN SHORT, UNLESS THE WITNESS IS
CLEARLY APPRISED THAT THE COMMITTEE DEMANDS HIS ANSWER NOTWITHSTANDING
HIS OBJECTIONS, THERE CAN BE NO CONVICTION UNDER SEC. 192 FOR REFUSAL
TO ANSWER THAT QUESTION.  (FN34)    WAS PETITIONER SO APPRISED HERE? 
AT NO TIME DID THE COMMITTEE SPECIFICALLY OVERRULE HIS OBJECTION BASED
ON THE FIFTH AMENDMENT; NOR DID THE COMMITTEE INDICATE ITS OVERRULING
OF THE OBJECTION BY SPECIFICALLY DIRECTING PETITIONER TO ANSWER.  IN
THE ABSENCE OF SUCH COMMITTEE ACTION, PETITIONER WAS NEVER CONFRONTED
WITH A CLEAR-CUT CHOICE BETWEEN COMPLIANCE AND NONCOMPLIANCE, BETWEEN
ANSWERING THE QUESTION AND RISKING PROSECUTION FOR CONTEMPT.  AT BEST
HE WAS LEFT TO GUESS WHETHER OR NOT THE COMMITTEE HAD ACCEPTED HIS
OBJECTION. 

THIS AMBIGUITY IN THE COMMITTEE'S POSITION IS APPARENT FROM THE
TRANSCRIPT OF THE HEARING.  (FN35)  IMMEDIATELY AFTER PETITIONER STATED
THAT HE WAS ADOPTING FITZPATRICK'S OBJECTION, THE COMMITTEE CHAIRMAN
ASKED PETITIONER:  "  ...  WILL YOU NOW ANSWER THE QUESTION WHETHER YOU
ARE NOW OR EVER HAVE BEEN A MEMBER OF THE COMMUNIST PARTY, OR DO YOU
DECLINE TO ANSWER?"  IN RESPONSE TO THIS, PETITIONER STATED FOR THE
FIRST TIME THAT HE WOULD NOT ANSWER.  HE SAID:  "I DECLINE TO DISCUSS
WITH THE COMMITTEE QUESTIONS OF THAT NATURE."  COMMITTEE COUNSEL
THEREUPON STATED THAT FURTHER QUESTIONING "RELATING TO THOSE MATTERS"
WAS "NOT NECESSARY" AND PROCEEDED UPON A NEW LINE OF INQUIRY.  THERE IS
NOTHING IN THIS COLLOQUY FROM WHICH PETITIONER COULD HAVE DETERMINED
WITH A REASONABLE DEGREE OF CERTAINTY THAT THE COMMITTEE DEMANDED HIS
ANSWER DESPITE HIS OBJECTION.  RATHER, THE COLLOQUY IS WHOLLY
CONSISTENT WITH THE HYPOTHESIS THAT THE COMMITTEE HAD IN FACT
ACQUIESCED IN HIS OBJECTION. 

OUR VIEW THAT A CLEAR DISPOSITION OF THE WITNESS' OBJECTION IS A
PREREQUISITE TO PROSECUTION FOR CONTEMPT IS SUPPORTED BY LONG-STANDING
TRADITION HERE AND IN OTHER ENGLISH-SPEAKING NATIONS.  (FN36)  IN THIS
COUNTRY THE TRADITION HAS BEEN UNIFORMLY RECOGNIZED IN THE PROCEDURE OF
BOTH STATE AND FEDERAL COURTS.  (FN37)  IT IS FURTHER REFLECTED IN THE
PRACTICE OF CONGRESSIONAL COMMITTEES PRIOR TO THE ENACTMENT OF SEC. 192
IN 1857; A SPECIFIC DIRECTION TO ANSWER WAS THE MEANS THEN USED TO
APPRISE A WITNESS OF THE OVERRULING OF HIS OBJECTION.  (FN38)  AGAINST
THIS BACKGROUND SEC. 192 BECAME LAW.  (FN39)  NO RELAXATION OF THE
SAFEGUARDS AFFORDED A WITNESS WAS CONTEMPLATED BY ITS SPONSORS.  IN
EXPLAINING THE BILL IN THE HOUSE, CONGRESSMAN DAVIS EXPRESSLY STATED
THAT COMMITTEE POWERS WERE NOT INCREASED, THAT NO ADDED BURDEN WAS
PLACED UPON THE WITNESS, AND THAT A "MERE SUBSTITUTION" OF A JUDICIAL
PROCEEDING FOR PUNISHMENT AT THE BAR OF CONGRESS WAS INTENDED.  (FN40)
THE REASON FOR ENACTING SEC. 192 WENT TO THE PUNISHMENT AND NOT THE
OFFENSE.  IT WAS RECOGNIZED THAT THE POWER OF CONGRESS TO DEAL WITH A
CONTEMNOR BY ITS OWN PROCESSES DID NOT EXTEND BEYOND THE LIFE OF ANY
SESSION.  (FN41)  BY MAKING CONTEMPT OF CONGRESS A CRIME, A FIXED TERM
OF IMPRISONMENT WAS SUBSTITUTED FOR VARIABLE PERIODS OF CONGRESSIONAL
CUSTODY DEPENDENT UPON THE FORTUITY OF WHETHER THE CONTEMNOR HAD BEEN
CALLED TO TESTIFY NEAR THE BEGINNING OR THE END OF A SESSION.  (FN42)
BUT THERE IS NOTHING TO INDICATE THAT THIS CHANGE IN THE MODE OF
PUNISHMENT AFFECTED IN ANY WAY THE WELL-ESTABLISHED ELEMENTS OF
CONTEMPT OF CONGRESS.  SINCE THE ENACTMENT OF SEC. 192, THE PRACTICE OF
SPECIFICALLY DIRECTING A RECALCITRANT WITNESS TO ANSWER HAS CONTINUED
TO PREVAIL.  (FN43)  IN FACT, THE VERY COMMITTEE INVOLVED HERE, THE
HOUSE UN-AMERICAN ACTIVITIES COMMITTEE, ORIGINALLY FOLLOWED THIS
PRACTICE (FN44) AND RECENTLY RESUMED IT.  (FN45) 

GIVING A WITNESS A FAIR APPRISAL OF THE COMMITTEE'S RULING ON AN
OBJECTION RECOGNIZES THE LEGITIMATE INTERESTS OF BOTH THE WITNESS AND
THE COMMITTEE.  JUST AS THE WITNESS NEED NOT USE ANY PARTICULAR FORM OF
WORDS TO PRESENT HIS OBJECTION, SO ALSO THE COMMITTEE IS NOT REQUIRED
TO RESORT TO ANY FIXED VERBAL FORMULA TO INDICATE ITS DISPOSITION OF
THE OBJECTION.  SO LONG AS THE WITNESS IS NOT FORCED TO GUESS THE
COMMITTEE'S RULING, HE HAS NO CAUSE TO COMPLAIN.  AN ADHERENCE TO THIS
TRADITIONAL PRACTICE CAN NEITHER INFLICT HARDSHIP UPON THE COMMITTEE
NOR ABRIDGE THE PROPER SCOPE OF LEGISLATIVE INVESTIGATION. 

 III. 

PETITIONER ALSO ATTACKS HIS CONVICTION ON GROUNDS INVOLVING NOVEL
CONSTITUTIONAL ISSUES.  HE CONTENDS THAT THE HOUSE RESOLUTION
AUTHORIZING THE COMMITTEE'S OPERATIONS IS INVALID UNDER THE FIRST
AMENDMENT.  IN ADDITION, PETITIONER CONTENDS THAT THE TRIAL COURT ERRED
IN DENYING A HEARING ON THE ALLEGED BIAS OF THE INDICTING GRAND JURY. 
OUR DISPOSITION OF THE CASE MAKES IT UNNECESSARY TO PASS ON THESE
ISSUES. 

THE JUDGMENT BELOW IS REVERSED AND THE CASE REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS TO ENTER A JUDGMENT OF ACQUITTAL.  REVERSED. 

FN1  THE SECTION PROVIDES IN FULL: 

"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 JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, 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 JAIL FOR NOT LESS THAN ONE MONTH NOR
MORE THAN TWELVE MONTHS." 

FN2  91 U.S. APP. D.C. 344, 203 F.2D 20. 

FN3  347 U.S. 1008. 

FN4  HEARINGS BEFORE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES
REGARDING COMMUNIST INFILTRATION OF LABOR UNIONS, 81ST CONG., 1ST
SESS., PART I, 541-542. 

FN5  ID., AT 602, 604. 

FN6  ID., AT 608. 

FN7  ID., AT 609. 

FN8  ID., AT 634-635: 

"MR. QUINN.  I WOULD LIKE TO MAKE A STATEMENT ALONG THE LINES THAT
MR. FITZPATRICK MADE YESTERDAY IN REGARD TO A QUESTION OF THAT NATURE. 
I FEEL THAT THE POLITICAL BELIEFS, OPINIONS, AND ASSOCIATIONS OF THE
AMERICAN PEOPLE CAN BE HELD SECRET IF THEY SO DESIRE. 

"MR. WOOD.  AND FOR THOSE REASONS DO YOU DECLINE TO ANSWER THAT
QUESTION? 

"MR. QUINN.  I DIDN'T SAY I WAS DECLINING TO ANSWER THE QUESTION. 
BEFORE I DO ANSWER THE QUESTION I SHOULD LIKE TO SAY THAT I SUPPORT THE
POSITION TAKEN BY BROTHER FITZPATRICK YESTERDAY. 

"MR. WOOD.  DID YOU HEAR HIS STATEMENT YESTERDAY? 

"MR. QUINN.  YES; I DID. 

"MR. WOOD.  DO YOU SUPPORT IT IN ITS ENTIRETY? 

"MR. QUINN.  IN ITS ENTIRETY. 

"MR. WOOD.  IS THERE ANYTHING ELSE YOU WANT TO ADD TO IT? 

"MR. QUINN.  NO; I DON'T. 

"MR. WOOD.  WILL YOU ACCEPT IT AS THE EXPRESSION OF YOUR VIEWS,
THEN? 

"MR. QUINN.  YOU MAY.  I MAY ADD I FEEL I HAVE NO OTHER CHOICE IN
THIS MATTER, BECAUSE THE DEFENSE OF THE CONSTITUTION, I HOLD SACRED.  I
DON'T FEEL I AM HIDING BEHIND THE CONSTITUTION, BUT IN THIS CASE I AM
STANDING BEFORE IT, DEFENDING IT, AS SMALL AS I AM. 

"MR. WOOD.  HAVING MADE THAT STATEMENT AND SUBSCRIBED TO THE
SENTIMENTS EXPRESSED BY THE WITNESS YESTERDAY TO WHOM YOU REFERRED,
WILL YOU NOW ANSWER THE QUESTION WHETHER YOU ARE NOW OR HAVE EVER BEEN
A MEMBER OF THE COMMUNIST PARTY? 

"MR. QUINN.  I HOLD THAT THE CONSTITUTION HOLDS SACRED THE RIGHTS OF
PEOPLE: 

"MR. WOOD.  YOU HAVE STATED YOUR POSITION.  HAVING ENUNCIATED YOUR
SENTIMENTS AND YOUR POSITION, WILL YOU NOW ANSWER THE QUESTION WHETHER
YOU ARE NOW OR EVER HAVE BEEN A MEMBER OF THE COMMUNIST PARTY, OR DO
YOU DECLINE TO ANSWER? 

"MR. QUINN.  I DECLINE TO DISCUSS WITH THE COMMITTEE QUESTIONS OF
THAT NATURE. 

"MR. WOOD.  PROCEED, MR. TAVENNER. 

"MR. TAVENNER.  I BELIEVE IN THE LIGHT OF THAT ANSWER IT IS NOT
NECESSARY TO ASK YOU ANY FURTHER QUESTIONS RELATING TO THOSE MATTERS,
SO I WILL ASK YOU THIS:  DO YOU KNOW MR. JAMES J. MATLES? 

"MR. QUINN.  YES." 

FN9  PETITIONER'S MOTIONS TO DISMISS THE INDICTMENT WERE DENIED SUB
NOM. UNITED STATES V. EMSPAK, 95 F. SUPP. 1010, 1012 (D.D.C.). 

FN10  UNITED STATES V. FITZPATRICK, 96 F. SUPP. 491 (D.D.C.). 

FN11  UNITED STATES V. PANZINO, UNREPORTED, CRIMINAL NO. 1747-50
(D.D.C.). 

FN12  UNITED STATES V. QUINN, UNREPORTED, CRIMINAL NO. 1744-50
(D.D.C.). 

FN13  91 U.S. APP. D.C. 344, 347, 203 F.2D 20, 23. 

FN14  ID., AT 347, 203 F.2D, AT 23. 

FN15  ID., AT 348, 203 F.2D, AT 24. 

FN16  IBID. 

FN17  ID., AT 349, 203 F.2D, AT 25. 

FN18  IBID. 

FN19  CF. ANDERSON V. DUNN, 6 WHEAT.  204. 

FN20  IN RE CHAPMAN, 166 U.S. 661. 

FN21  SEE MCGRAIN V. DAUGHERTY, 273 U.S. 135, 175. 

FN22  ID., AT 173-174; KILBOURN V. THOMPSON, 103 U.S. 168, 190. 

FN23  COMPARE UNITED STATES V. RUMELY, 345 U.S. 41, 46. 

FN24  KILBOURN V. THOMPSON, 103 U.S. 168, 192-193. 

FN25  THE AMENDMENT PROVIDES IN PERTINENT PART THAT "NO PERSON  ...
SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF
...  ." 

FN26  SEE GRISWOLD, THE FIFTH AMENDMENT TODAY, 2-7. 

FN27  TWINING V. NEW JERSEY, 211 U.S. 78, 91.  SEE ALSO BOYD V.
UNITED STATES, 116 U.S. 616, 631-632. 

FN28  HOFFMAN V. UNITED STATES, 341 U.S. 479, 486.  CF. COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 562. 

FN29  BLAU V. UNITED STATES, 340 U.S. 159, SPECIFICALLY HOLDING THAT
SUCH A QUESTION IS PROTECTED BY THE PRIVILEGE; BRUNNER V. UNITED
STATES, 343 U.S. 918, REVERSING 190 F.2D 167 (C.A. 9TH CIR.). SEE ALSO
HOFFMAN V. UNITED STATES, 341 U.S. 479. 

FN30  COMPARE SMITH V. UNITED STATES, 337 U.S. 137, WHERE THE COURT
CHARACTERIZED A WITNESS' STATEMENT "I WANT TO CLAIM PRIVILEGE AS TO
ANYTHING THAT I SAY"  (P. 142) AS A "DEFINITE CLAIM OF GENERAL
PRIVILEGE AGAINST SELF-INCRIMINATION" (P. 151). 

FN31  AS TO THE CLOSE RELATIONSHIP BETWEEN THE FIRST AMENDMENT AND
THE PRIVILEGE AGAINST SELF-INCRIMINATION, SEE GRISWOLD, SUPRA, NOTE 26,
AT 8-9. 

FN32  BRIEF FOR UNITED STATES, P. 33.  THE GOVERNMENT MAKES THE SAME
CONTENTION AS TO THE PETITIONER IN NO. 9, EMSPAK V. UNITED STATES,
POST, P. 190. 

FN33  SINCLAIR V. UNITED STATES, 279 U.S. 263, 299.  SEE ALSO IN RE
CHAPMAN, 166 U.S. 661, 672, IN WHICH THE COURT, WHILE UPHOLDING THE
CONSTITUTIONALITY OF THE STATUTE, RECOGNIZED DELIBERATENESS AS AN
ELEMENT OF THE OFFENSE. 

FN34  SEE UNITED STATES V. KAMP, 102 F. SUPP. 757, 759 (D.D.C.):
"COMMITTEES OF CONGRESS MUST CONDUCT EXAMINATIONS IN SUCH A MANNER THAT
IT IS CLEAR TO THE WITNESS THAT THE COMMITTEE RECOGNIZES HIM AS BEING
IN DEFAULT, AND ANYTHING SHORT OF A CLEAR CUT DEFAULT ON THE PART OF
THE WITNESS WILL NOT SUSTAIN A CONVICTION FOR CONTEMPT OF CONGRESS. 
THE TRANSCRIPT OF THE DEFENDANT KAMP'S TESTIMONY FAILS TO DISCLOSE SUCH
A CLEAR CUT DEFAULT.  THE WITNESS IS NOT REQUIRED TO ENTER INTO A
GUESSING GAME WHEN CALLED UPON TO APPEAR BEFORE A COMMITTEE.  THE
BURDEN IS UPON THE PRESIDING MEMBER TO MAKE CLEAR THE DIRECTIONS OF THE
COMMITTEE, TO CONSIDER ANY REASONABLE EXPLANATIONS GIVEN BY THE
WITNESS, AND THEN TO RULE ON THE WITNESS' RESPONSE."  THE DEFENDANT WAS
ACCORDINGLY ACQUITTED. 

ON SIMILAR GROUNDS, AN ACQUITTAL WAS DIRECTED IN UNITED STATES V.
BROWDER, UNREPORTED, CRIMINAL NO. 1784-50 (D.D.C.). 

FN35  SEE NOTE 8, SUPRA. 

FN36  WHILE OF COURSE NOT BINDING ON CONGRESS OR ITS COMMITTEES, THE
PRACTICE IN THE STATES AND OTHER ENGLISH-SPEAKING JURISDICTIONS IS AT
LEAST WORTHY OF NOTE. 

FOR EXAMPLES RELATING TO RECALCITRANT WITNESSES BEFORE STATE
LEGISLATIVE COMMITTEES, SEE EX PARTE MCCARTHY, 29 CAL. 395, 398; PEOPLE
V. KEELER, 99 N.Y. 463, 471, 2 N.E. 615, 617; LOWE V. SUMMERS, 69 MO.
APP. 637, 645. 

RECALCITRANT WITNESSES BEFORE INVESTIGATING COMMITTEES OF THE BRITISH
HOUSE OF COMMONS HAVE TRADITIONALLY BEEN APPRISED OF THE DISPOSITION OF
THEIR OBJECTIONS AND GIVEN SUBSEQUENT OPPORTUNITY TO RESPOND BEFORE
BEING SUBJECTED TO THE CONTEMPT POWER OF THE LEGISLATURE.  THE PRACTICE
HAS BEEN AS FOLLOWS:  THE COMMITTEE REPORTS THE FAILURE TO ANSWER TO
THE HOUSE.  THE WITNESS IS QUESTIONED ABOUT THE CAUSE OF THE REFUSAL TO
ANSWER BEFORE THE BAR OF THE HOUSE.  THE HOUSE THEN VOTES ON THE
VALIDITY OF THE OBJECTION.  IF THE CLAIM IS REJECTED, THE WITNESS IS
SPECIFICALLY DIRECTED TO ANSWER.  ONLY AFTER A SUBSEQUENT REFUSAL IS
PUNISHMENT IMPOSED.  SEE 88 JOURNALS OF THE HOUSE OF COMMONS 212, 218
(CASE OF ELIZABETH ROBINSON BEFORE SELECT COMMITTEE ON LIVERPOOL
BRIBERY, 1833); 90 JOURNALS OF THE HOUSE OF COMMONS 501, 504, AND 29
HANS.  DEB., 3D SER., 1249, 1279-1288 (CASE OF WILLIAM PRENTICE BEFORE
SELECT COMMITTEE ON GREAT YARMOUTH BRIBERY, 1835); 90 JOURNALS OF THE
HOUSE OF COMMONS, 564, 571, 575 (CASE OF LIEUTENANT COLONEL FAIRMAN
BEFORE SELECT COMMITTEE ON THE ORANGE LODGES, 1835); 152 JOURNALS OF
THE HOUSE OF COMMONS 361, 365 (CASE OF JOHN KIRKWOOD BEFORE SELECT
COMMITTEE ON MONEY LENDING, 1897). 

FOR CANADIAN PRACTICE, SEE THE CASE OF W.T.R. PRESTON BEFORE THE
COMMITTEE ON PUBLIC ACCOUNTS, THE COMMITTEE ON AGRICULTURE AND
COLONIZATION, AND THE HOUSE OF COMMONS.  41 JOURNALS OF THE HOUSE OF
COMMONS, CANADA, 298, 316, 323; 41 ID., APPENDIX NO. 2, 324-327; 41
ID., APPENDIX NO. 3, 250-251; 76 DEBATES, HOUSE OF COMMONS, CANADA,
SESSION 1906, VOL. III, 4451-4535. 

FN37  SEE HOFFMAN V. UNITED STATES, 341 U.S. 479, 486:  "IT IS FOR
THE COURT TO SAY WHETHER HIS SILENCE IS JUSTIFIED  ...  AND TO REQUIRE
HIM TO ANSWER IF 'IT CLEARLY APPEARS TO THE COURT THAT HE IS
MISTAKEN.'"  SEE ALSO CHIEF JUSTICE MARSHALL IN UNITED STATES V. BURR,
25 FED. CAS. 38, AT 40, NO. 14,692E:  "WHEN A QUESTION IS PROPOUNDED,
IT BELONGS TO THE COURT TO CONSIDER AND TO DECIDE WHETHER ANY DIRECT
ANSWER TO IT CAN IMPLICATE THE WITNESS."  THE CASES, BOTH FEDERAL AND
STATE, ARE COLLECTED IN WIGMORE, EVIDENCE, SEC. 2271.  SEE, E.G.,
CARLSON V. UNITED STATES, 209 F.2D 209, 214 (C.A. 1ST CIR.), AND
GENDRON V. BURNHAM, 146 ME. 387, 405-406, 82 A.2D 773, 784-785.    FN38
SEE, E.G., THE RESOLUTION INTRODUCED BY CONGRESSMAN ORR PROPOSING THAT
ONE J.W.  SIMONTON BE HALED BEFORE THE BAR OF THE HOUSE OF
REPRESENTATIVES FOR REFUSING TO ANSWER A QUESTION PUT TO HIM BY A DULY
AUTHORIZED COMMITTEE OF THAT BODY.  CONG. GLOBE, 34TH CONG., 3D SESS.
403-404 (1857).  THE RESOLUTION STATES IN PART: 

"THE COMMITTEE WERE IMPRESSED WITH THE MATERIALITY OF THE TESTIMONY
WITHHELD BY THE WITNESS, AS IT EMBRACED THE LETTER AND SPIRIT OF THE
INQUIRY DIRECTED BY THE HOUSE TO BE MADE, BUT WERE ANXIOUS TO AVOID ANY
CONTROVERSY WITH THE WITNESS.  THEY CONSEQUENTLY WAIVED THE
INTERROGATORY THAT DAY, TO GIVE THE WITNESS TIME FOR REFLECTION ON THE
CONSEQUENCES OF HIS REFUSAL, AND TO AFFORD HIM AN OPPORTUNITY TO LOOK
INTO THE LAW AND THE PRACTICE OF THE HOUSE IN SUCH CASES, NOTIFYING HIM
THAT HE WOULD, ON SOME SUBSEQUENT DAY, BE RECALLED.  THIS WAS THE 15TH
OF JANUARY INSTANT.  ON TUESDAY, THE 20TH INSTANT, THE SAID J.W.
SIMONTON WAS RECALLED, AND THE IDENTICAL QUESTION FIRST REFERRED TO WAS
AGAIN PROPOUNDED, AFTER DUE NOTICE TO HIM THAT IF HE DECLINED THE
COMMITTEE WOULD FEEL CONSTRAINED TO REPORT HIS DECLINATION TO THE
HOUSE, AND ASK THAT BODY TO ENFORCE ALL ITS POWERS IN THE PREMISES TO
COMPEL A FULL AND COMPLETE RESPONSE."  ID., AT 403.  SEE ALSO ID., 31ST
CONG., 1ST SESS. 1716 (1850). 

FN39  ACT OF JAN 24, 1857, C. 19, SEC. 1, 11 STAT. 155. 

FN40  CONG. GLOBE, 34TH CONG., 3D SESS. 427. 

FN41  ANDERSON V. DUNN, 6 WHEAT.  204, 230-231. 

FN42  CONG. GLOBE, SUPRA, NOTE 40, AT 405 ET SEQ. 

FN43  SEE, E.G., CONG. GLOBE, 40TH CONG., 3D SESS. 771-772 (1869);
ID., 42D CONG., 3D SESS. 952 (1873); 4 CONG. REC. 1705 ET SEQ.
(1876)(CITATION OF HALLET KILBOURN, INVOLVED IN KILBOURN V. THOMPSON,
SUPRA, NOTE 22); 26 CONG. REC. 6143 ET SEQ. (1894)(CITATION OF ELVERTON
R. CHAPMAN, INVOLVED IN IN RE CHAPMAN, SUPRA, NOTE 20); 65 CONG. REC.
4785 ET SEQ. (1924)(CITATION OF HARRY F. SINCLAIR, INVOLVED IN SINCLAIR
V. UNITED STATES, SUPRA, NOTE 33); 69 CONG. REC. 2439, 5286, 5353, 7239
(1928); 78 CONG. REC. 1902, 1911-1914 (1934); 86 CONG. REC. 3856
(1940); 90 CONG. REC. 8163 (1944); 97 CONG. REC. 499 ET SEQ. (1951). 

FN44  SEE, E.G., THE CONTEMPT CITATION OF GEORGE POWERS AT 86 CONG.
REC. 3856-3857.  SEE ALSO THE CITATION OF JAMES H. DOLSEN, ID., AT 3694
3695. 

FN45  SEE CONTEMPT CITATION OF SAUL GROSSMAN, 98 CONG. REC. 8634
8637. 

MR. JUSTICE HARLAN, CONCURRING. 

I AGREE WITH THE RESULT REACHED BY THE COURT IN THIS CASE.  BUT I
MUST DISSENT FROM THE HOLDING MADE IN PART II OF THE MAJORITY OPINION. 
THE REASONS FOR MY POSITION ARE STATED IN PART II OF MY DISSENTING
OPINION IN THE EMSPAK CASE, DECIDED HEREWITH, POST, P. 203, AT P. 213. 
I CONSIDER THOSE REASONS EQUALLY APPLICABLE TO WHAT IS SHOWN BY THE
RECORD IN THIS CASE. 

MR. JUSTICE REED, DISSENTING.* 

*THIS DISSENTING OPINION APPLIES ALSO TO EMSPAK V. UNITED STATES,
POST, P. 190. 

THE COURT IN THESE TWO CASES REFUSES TO PUNISH PETITIONERS, WITNESSES
BEFORE THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE HOUSE OF
REPRESENTATIVES, FOR REFUSAL TO ANSWER CERTAIN PERTINENT QUESTIONS. 
SUCH REFUSAL IS DECLARED TO BE A MISDEMEANOR BY 2 U.S.C. SEC. 192. 

THE SEPARATE OPINIONS ARE BASED ON THE CONCLUSION THAT THE
PETITIONERS EACH PROPERLY CLAIMED FOR HIMSELF THE PRIVILEGE AGAINST
SELF-INCRIMINATION GUARANTEED BY THE FIFTH AMENDMENT.  THE COURT HOLDS
THAT QUESTIONS CONCERNING ASSOCIATION WITH KNOWN COMMUNISTS OR
MEMBERSHIP IN THE PARTY ASKED WITNESSES HOLDING PROMINENT POSITIONS IN
A LOCAL UNION, UNDER INVESTIGATION FOR COMMUNIST INFILTRATION DIRECTED
AT NATIONAL SECURITY, MIGHT REASONABLY BE FEARED AS INCRIMINATORY BY
THE WITNESSES.  (FN1)  FOR THESE CASES I MAKE THAT ASSUMPTION, TOO.  IN
BOTH THE CASES, THE COURT DIRECTS REMAND TO THE TRIAL COURT WITH
DIRECTIONS TO ACQUIT.  THIS DISPOSITION OF THE CHARGES EXCLUDES ANY
FACTUAL ISSUES FOR DECISION BY THE TRIAL COURT AS TO WHETHER THE
WITNESSES DID OR DID NOT CLAIM THEIR PRIVILEGE.  IT DECIDES THAT, AS A
MATTER OF LAW, THE PETITIONERS CLAIMED THEIR PRIVILEGE BY THE WORDS
USED BY THEM IN ANSWER TO THE QUESTIONS PROPOUNDED BY THE COMMITTEE. 
SINCE THE INDICTMENTS CONTAINED NUMEROUS COUNTS COVERING MANY QUESTIONS
ASKED AND THE EVIDENCE SHOWED VARYING REASONS FOR NOT ANSWERING, THE
CONCLUSION THAT PRIVILEGE WAS CLAIMED BLANKETS ALL QUESTIONS.  SINCE
THE SENTENCES WERE LESS THAN THE MAXIMUM PENALTY FOR ONE COUNT, IF THE
COURT'S DETERMINATION IS WRONG AS TO ANY ONE QUESTION, ITS PRESENT
JUDGMENTS ARE WRONG.  (FN2)  NORMALLY THE ISSUE AS TO WHETHER A CLAIM
OF PRIVILEGE WAS MADE WOULD BE A MATTER OF FACT FOR THE TRIAL COURT IF
REASONABLE MEN MIGHT REACH EITHER CONCLUSION.  SEE THE DISCUSSION BELOW
IN THE OPINION OF JUDGE PRETTYMAN IN QUINN V. UNITED STATES, 91 U.S.
APP. D.C. 344, 348, 203 F.2D 20, 24, AND OF JUDGE BAZELON, ID., AT 350
AND 361-362, 203 F.2D, AT 26 AND 38.  NONE OF THE JUDGES OF THE COURT
OF APPEALS SUGGESTED APPROVAL OF SUCH ACTION AS THIS COURT NOW TAKES IN
DIRECTING ACQUITTAL.  SEE ALSO EMSPAK V. UNITED STATES, 91 U.S. APP.
D.C. 378, 203 F.2D 54, DISSENT, ID., AT 384, 203 F.2D, AT 60.  THIS
COURT AT LEAST SHOULD HAVE FOLLOWED THAT COURSE HERE. 

THESE SWEEPING DECISIONS AFFECT THE CONDUCT OF ALL CONGRESSIONAL
INQUIRIES AND ALL COURTS, FOR FROM THE OPINIONS THERE EMERGES A LEGALLY
ENFORCEABLE RULE FOR HANDLING HEARINGS OR PROSECUTIONS WHEN QUESTIONS
RAISE FOR THE WITNESS A PROBLEM OF SELF-INCRIMINATION.  THE COURT,
QUINN OPINION, P. 164, REQUIRES THE INTERROGATOR, ONCE THE WITNESS'
CLAIM THOUGH "VAGUE ...  IS SUFFICIENTLY DEFINITE TO APPRISE THE
COMMITTEE OF HIS INTENTION" TO CLAIM HIS PRIVILEGE, "EITHER TO ACCEPT
THE CLAIM OR TO ASK PETITIONER WHETHER HE WAS IN FACT INVOKING THE
PRIVILEGE."  ALTHOUGH THIS PHRASING, PARTICULARLY THE LAST CLAUSE,
CARRIES FOR ME PROBABILITIES OF UNCERTAINTIES IN FUTURE APPLICATIONS
THAT FORMER DECISIONS AVOIDED, (FN3) IT IS ACCEPTED FOR THIS CASE AS
THE GOVERNING RULE.  MY CONCLUSION IS THAT NEITHER PETITIONER HERE
APPRISED THE COMMITTEE THAT HE WAS CLAIMING HIS PRIVILEGE.  AS SHOWN BY
THE CASES JUST CITED, THE PRIVILEGE IS PERSONAL TO THE WITNESS.  THE
REACH OF QUESTIONS INTO MATTERS THAT MIGHT LEAD TO HIS PROSECUTION FOR
CRIME MAY BE KNOWN ONLY TO HIM.  THEREFORE THE WITNESS HAS THE BURDEN
OF DOING SOMETHING MORE THAN SUGGESTING A QUESTION MIGHT INCRIMINATE
HIM.  AT LEAST, IN THE WORDS OF THE COURT, HE MUST "APPRISE THE
COMMITTEE OF HIS INTENTION" TO CLAIM HIS PRIVILEGE. 

THE PURPOSE OF HAVING WITNESSES IS TO FURNISH TO PROPER
INTERROGATORS, SUBJECT TO OBJECTIONS FOR MATERIALITY OR THE USE OF
COERCION, THE ACTUAL FACTS THEY SEEK.  LEGISLATION CAN BEST BE DRAFTED
AND CASES TRIED MOST FAIRLY ONLY WHEN ALL PERTINENT FACTS ARE MADE
AVAILABLE TO THOSE CHARGED WITH LEGISLATION OR MAINTENANCE OF THE
PEACE.  HOWEVER, THE CONGRESS IN THE FIRST SERIES OF AMENDMENTS TO THE
CONSTITUTION WROTE AN EXCEPTION TO THIS DUTY IN THE INSTANCE WHERE AN
ANSWER WOULD COMPEL A PERSON TO BE A WITNESS AGAINST HIMSELF IN A
CRIMINAL CASE.  IN THAT SITUATION, ON A VALID CLAIM OF PRIVILEGE
AGAINST SELF-INCRIMINATION, THE WITNESS MAY BE EXCUSED FROM ANSWERING. 
(FN4)  THAT EXCEPTION SHOULD NEITHER BE SHRIVELED NOR BLOATED.  IT IS
DESIGNED TO EXCUSE THE GUILTY AND THE INNOCENT ALIKE FROM TESTIFYING
WHEN PROSECUTION MAY REASONABLY BE FEARED FROM COMPELLED DISCLOSURES. 
THE IMPORTANCE OF PRESERVING THE RIGHT TO REQUIRE EVIDENCE, EXCEPT WHEN
A WITNESS DEFINITELY APPRISES THE INTERROGATING BODY OF A VALID CLAIM
OF PRIVILEGE, LEADS US TO DISSENT. 

I. CLAIM OF PRIVILEGE. 

THE COURT FINDS FROM THE RECORD BEFORE THE COMMITTEE AN APPRISAL BY
PETITIONERS WHICH THE COMMITTEE SHOULD HAVE UNDERSTOOD AS A CLAIM OF
PRIVILEGE AGAINST SELF-INCRIMINATION.  IN EXAMINING THE RECORD FOR THIS
PURPOSE, ALL THE PERTINENT TESTIMONY MUST BE CONSIDERED AND EVALUATED
IN THE LIGHT OF THE PURPOSE AND ABILITIES OF THE PETITIONERS. 

DURING AN ACTIVE PERIOD OF NATIONAL REARMAMENT THIS COMMITTEE WAS
INVESTIGATING SUBVERSIVE AND SECURITY SITUATIONS IN THE SENSITIVE
ELECTRONIC INDUSTRY WITH A VIEW TO POSSIBLE LEGISLATION.  (FN5)  THE
RECALCITRANT WITNESSES HELD IMPORTANT POSITIONS IN THE FIELD.  MR.
QUINN WAS A FIELD ORGANIZER OF THE INTERNATIONAL UNION OF THE UNITED
ELECTRICAL, RADIO AND MACHINE WORKERS.  MR. EMSPAK WAS ITS GENERAL
SECRETARY.  THE THIRD WITNESS, WHO IS NOT A PETITIONER BUT WHOSE
TESTIMONY IS HEREAFTER REFERRED TO, WAS MR. FITZPATRICK, CHIEF STEWARD
OF THE WESTINGHOUSE CORPORATION LOCAL.  THERE IS NOTHING TO INDICATE
THAT THE WITNESSES HAD MENTALITIES OF A QUALITY LESS THAN ONE WOULD
EXPECT FROM EXPERIENCED OFFICIALS HOLDING SUCH RESPONSIBLE POSITIONS. 

IT WILL BE OBSERVED FROM THEIR TESTIMONY, HOWEVER, THAT IN AVOIDING
DIRECT ANSWERS TO SPECIFIC QUESTIONS EACH ONE ENGAGED IN EXERCISES IN
DIALECTICS THAT ALWAYS FELL SHORT OF ADVISING THE COMMITTEE OF ANY
INTENTION TO CLAIM HIS PRIVILEGE.  IN VIEW OF THE EASE WITH WHICH A
CLAIM CAN BE MADE BY ANY LAYMAN, THE AVAILABILITY OF PERSONAL LAWYERS
FOR THESE WITNESSES AND THE CAREFUL AVOIDANCE OF ANY SUCH STATEMENT AS,
"I DECLINE TO ANSWER ON THE GROUND OF POSSIBLE SELF-INCRIMINATION," I
CANNOT HOLD THAT THESE WITNESSES EVIDENCED BY THEIR TESTIMONY AN
INTENTION TO CLAIM PRIVILEGE.  THE FACT THAT A CLAIM OF PRIVILEGE WOULD
SUBJECT THE WITNESSES TO CRITICISM IN SOME QUARTERS, OF COURSE, HAS NO
BEARING UPON THE NECESSITY TO ASSERT ONE'S RIGHTS.  THIS IS EMPHASIZED
BY THE FACT THAT LONG AGO THIS COURT DECLARED THAT NO MORAL TURPITUDE
IS INVOLVED IN REFUSING TO ANSWER UNDER THE PROTECTION OF THE
PRIVILEGE.  (FN6) 

WHILE THE TRIAL AND APPELLATE COURTS EACH HAD ONLY A PRINTED RECORD
OF THE TESTIMONY, ONE GROUP, THE SUBCOMMITTEES THEMSELVES, HAD THE BEST
OPPORTUNITY TO APPRIASE DISINTERESTEDLY THE FACT OF WHETHER MESSRS. 
QUINN AND EMSPAK CLAIMED THE PRIVILEGE.  THE QUESTIONS AND ANSWERS WERE
BOTH ASKED BY THE COUNSEL AND ANSWERED BY THE WITNESSES IN THE HEARING
OF THE COMMITTEE.  IN CITATIONS OF QUINN AND EMSPAK TO THE HOUSE FOR
CONTEMPT, THE COMMITTEE CERTIFIED THAT THE REFUSAL OF EACH "TO ANSWER
THE AFORESAID QUESTIONS DEPRIVED YOUR COMMITTEE OF NECESSARY AND
PERTINENT TESTIMONY  ...  ."  (FN7)  IT CAN HARDLY BE CONTENDED THAT
THE COMMITTEE DID NOT KNOW A CLAIM OF PRIVILEGE AGAINST ANSWERING
INCRIMINATING QUESTIONS WOULD HAVE EXCUSED THE WITNESSES FROM
ANSWERING. 

IN VIEW OF THE BASIS OF THE COURT'S DECISION MADE ON ITS OWN
EXAMINATION AND APPRAISAL OF THE RECORD, I MUST NECESSARILY SET OUT FOR
DISCUSSION MUCH OF THE TESTIMONY TO DETERMINE WHETHER THE WITNESSES
CLAIMED THE PRIVILEGE.  (FN8)  THE PERTINENT EVIDENCE FOLLOWS. 

AFTER TESTIFYING AT SOME LENGTH, THE PETITIONER WAS ASKED:  "MR.
EMSPAK, ARE YOU ACQUAINTED WITH JOSEPH PERSILY?"  PETITIONER DID NOT
ANSWER THE QUESTION BUT MADE THE FOLLOWING STATEMENT: 

"MR. EMSPAK.  MR. CHAIRMAN, I WOULD LIKE TO SAY SOMETHING AT THIS
POINT. 

"MR. MOULDER.  YOU MEAN IN RESPONSE TO THE QUESTION? 

"MR. EMSPAK.  I WILL ANSWER THE QUESTION; YES, IN RESPONSE TO THE
QUESTION AND AS A STATEMENT OF POSITION. 

"WHAT I SAY REVOLVES AROUND TWO POINTS, ONE ORGANIZATIONALLY AND
ANOTHER AS AN INDIVIDUAL.  ORGANIZATIONALLY, MY JOB AS AN OFFICER OF
THIS UNION IS TO REPRESENT THE INTEREST OF THE MEMBERSHIP AS THEY
DETERMINE IT AT THE ANNUAL CONVENTIONS AND AT OTHER MEANS THEY HAVE OF
GETTING TOGETHER AND EXPRESSING THEMSELVES.  MY JOB IS TO ADMINISTER
THAT ASPECT TO THE BEST OF MY ABILITY, USING ONE VERY SIMPLE MEASURING
STICK, AND THAT IS:  DOES A GIVEN POLICY OR ACTION CONTRIBUTE TO THE
WELL-BEING OF THE MEMBERSHIP, INDIVIDUALLY AND COLLECTIVELY? 

"AS AN INDIVIDUAL I WOULD LIKE TO SAY ONE THING, AND THAT IS THIS:
THE LINE OF QUESTIONING THAT COUNSEL IS DEVELOPING NOW IS A LINE THAT
HAS BEEN USED ON NUMEROUS OCCASIONS BY THIS COMMITTEE AND OTHER
CONGRESSIONAL COMMITTEES IN AN ATTEMPT TO HARASS THE UNION, ITS
LEADERSHIP, AND ITS MEMBERS.  IT IS A LINE OF QUESTIONING THAT GOES
AGAINST MY GRAIN AS AN AMERICAN.  I WAS BORN IN THIS COUNTRY. 
EVERYTHING I AM: 

"MR. MOULDER.  HOW LONG WILL THIS STATEMENT TAKE, MR. EMSPAK? 

"MR. EMSPAK.  ABOUT TWO OR THREE MORE MINUTES. 

"MR. MOULDER.  PROCEED. 

"MR. EMSPAK.  EVERYTHING I AM, I OWE TO THE RICH HERITAGE AND
TRADITION OF THIS COUNTRY.  I DO NOT BELIEVE THAT A COMMITTEE OF THIS
KIND, ESPECIALLY IN VIEW OF THE RECENT RECORD OF THIS COMMITTEE WHERE
IT STOOPED TO INTERFERE IN THE PARTISAN AFFAIRS OF A LOCAL UNION, OR
ANY CONGRESSIONAL COMMITTEE, BECAUSE OF THE RICH TRADITION OF THIS
COUNTRY WHICH, IF NOT PERVERTED, WILL LEAD TO A GREATER AND BETTER
COUNTRY - I DON'T THINK A COMMITTEE LIKE THIS OR ANY SUBCOMMITTEE HAS A
RIGHT TO GO INTO ANY QUESTION OF MY BELIEFS, MY ASSOCIATIONS, OR
ANYTHING ELSE.  I HAVE A COUPLE OF KIDS.  THEY HAVE A STAKE IN THIS
COUNTRY, TOO. 

"MR. MOULDER.  I WANT TO GIVE YOU FULL OPPORTUNITY TO EXPRESS
YOURSELF IN ANSWER TO THE QUESTION, BUT YOU ARE MAKING AN ORATION NOW. 

"MR. EMSPAK.  IT IS NOT AN ORATION.  IT HAPPENS TO BE A VERY PROFOUND
PERSONAL FEELING. 

"MR. MOULDER.  WHAT IS THE QUESTION? 

"MR. TAVENNER.  THE QUESTION IS:  ARE YOU ACQUAINTED WITH JOSEPH
PERSILY. 

"MR. MOULDER.  HOW DO YOU SPELL THAT? 

"MR. TAVENNER.  P-E-R-S-I-L-Y. 

"MR. EMSPAK.  BECAUSE I HAVE A STAKE IN THIS COUNTRY: 

"MR. MOULDER.  YOU ARE NOT ANSWERING THE QUESTION.  HE ASKED YOU IF
YOU ARE ACQUAINTED WITH THIS MAN. 

"MR. EMSPAK.  I WILL ANSWER IT. 

"MR. MOULDER.  ARE YOU OR NOT? 

"MR. EMSPAK.  I WAS ON THE VERGE OF ANSWERING IT. 

"MR. MOULDER.  IF YOU HAVE ANY EXPLANATION TO MAKE YOU WILL BE
PERMITTED TO DO SO AFTER YOU ANSWER THE QUESTION.    "MR. EMSPAK. 
BECAUSE OF MY INTEREST IN WHAT IS GOING ON THESE DAYS, BECAUSE OF THE
ACTIVITIES OF THIS COMMITTEE: 

"MR. MOULDER.  ARE YOU GOING TO ANSWER THE QUESTION? 

"MR. EMSPAK.  BECAUSE OF THE HYSTERIA, I THINK IT IS MY DUTY TO
ENDEAVOR TO PROTECT THE RIGHTS GUARANTEED UNDER THE CONSTITUTION,
PRIMARILY THE FIRST AMENDMENT, SUPPLEMENTED BY THE FIFTH.  THIS
COMMITTEE WILL CORRUPT THOSE RIGHTS. 

"MR. MOULDER.  DO YOU THINK IT CORRUPTS YOU TO ANSWER THE QUESTION? 

"MR. EMSPAK.  I CERTAINLY DO.    "MR. MOULDER.  WHY DOES IT CORRUPT
YOU? 

"MR. EMSPAK.  YOUR ACTIVITIES ARE DESIGNED TO HARM THE WORKING PEOPLE
OF THIS COUNTRY.  EVERY ACTION THIS COMMITTEE HAS EVER TAKEN HAS DONE
THAT.  YOU INTERFERED LAST SUMMER IN THE ELECTION OF A LOCAL UNION AT
THE REQUEST OF A PRIEST.  YOU KNOW THAT.  YOU DRAGGED DOWN THE PRESTIGE
OF THIS COUNTRY. 

"MR. MOULDER.  YOU ARE NOT GOING TO TAKE OVER THIS COMMITTEE. 

"MR. EMSPAK.  I DON'T WANT TO. 

"MR. MOULDER.  AND YOUR STATEMENTS ARE PREPOSTEROUS.  THE PURPOSE OF
THIS COMMITTEE IS TO EXPOSE COMMUNISM AS IT EXISTS IN THIS COUNTRY. 
WHAT IS THE QUESTION? 

"MR. TAVENNER.  ARE YOU ACQUAINTED WITH JOSEPH PERSILY? 

"MR. EMSPAK.  FOR THE REASONS I STATED BEFORE, I ANSWERED IT. 

"MR. MOULDER.  THEN YOU REFUSE TO ANSWER THE QUESTION? 

"MR. EMSPAK.  NO. I ANSWERED IT. 

"MR. TAVENNER.  ARE YOU OR ARE YOU NOT ACQUAINTED WITH JOSEPH
PERSILY? 

"MR. EMSPAK.  I ANSWERED THE QUESTION. 

"MR. TAVENNER.  YOUR REPLIES ARE A REFUSAL TO COMPLY WITH THE REQUEST
TO ANSWER IT? 

"(WITNESS CONFERS WITH HIS COUNSEL.) 

"MR. MOULDER.  THE RECORD WILL REVEAL THAT YOU HAVE NOT ANSWERED THE
QUESTION. 

"MR. EMSPAK.  I HAVE ANSWERED IT TO THE BEST OF MY ABILITY UNDER THE
CIRCUMSTANCES." 

IN ANSWER TO SUBSEQUENT QUESTIONS, THE PETITIONER SIMPLY REFERRED TO
HIS PRIOR ANSWER.  LATER ON, THE FOLLOWING STATEMENTS WERE MADE: 

"MR. EMSPAK.  MR. CHAIRMAN, ON THESE QUESTIONS, WHICH ARE ESENTIALLY
THE SAME, OF COURSE, WHEN THIS HEARING WAS ANNOUNCED ACCORDING TO THE
PRESS REPORTS, AT LEAST, IT WAS ANNOUNCED BECAUSE THIS COMMITTEE
PRESUMABLY WAS INTERESTED IN FINDING OUT THINGS WITH REFERENCE TO
INDIVIDUALS IN OUR ORGANIZATION BY USING WHATEVER MEANS IT HAS AT ITS
DISPOSAL, AND FOR THE PURPOSE OF TRYING TO PERHAPS FRAME PEOPLE FOR
POSSIBLE CRIMINAL PROSECUTION. 

"I DON'T SEE HOW OR WHY ANY INDIVIDUAL SHOULD BE SUBJECTED TO THAT
KIND OF QUESTIONING HERE IF HE IS GOING TO MAINTAIN, YOU KNOW, HIS
FEELINGS ON THESE QUESTIONS, AND I TRIED TO EXPRESS THE FEELING BEFORE
WHEN YOU INTERRUPTED ME.  I JUST DON'T INTEND, AS I SAID THEN, TO BE A
PARTY TO ANY KANGAROO COURT PROCEEDINGS OF THIS COMMITTEE OR ANY OTHER
CONGRESSIONAL COMMITTEE.  I THINK I HAVE THE RIGHT TO RESERVE WHATEVER
RIGHTS I HAVE IN THAT RESPECT TO WHATEVER APPROPRIATE BODIES MAY BE SET
UP TO DEAL WITH QUESTIONS THAT COME UP. 

"MR. MOULDER.  DO YOU MEAN TO SAY YOU HAVE PEOPLE IN YOUR
ORGANIZATION WHO HAVE INFORMATION THAT WOULD SUBJECT YOU TO CRIMINAL
PROSECUTION? 

"MR. EMSPAK.  NO; I DON'T, MR. CHAIRMAN.  AS A BASIC PROPOSITION -
AND IT HAS WORKED OVER THE YEARS AND OVER THE LAST FEW MONTHS AS FAR AS
THIS COMMITTEE IS CONCERNED - A SLICK JOB: 

"MR. MOULDER.  DO YOU KNOW THEM OR NOT? 

"MR. EMSPAK.  THAT DOES NOT CONCERN THIS COMMITTEE AT ALL. 

"MR. MOULDER.  IS IT YOUR FEELING THAT TO REVEAL YOUR KNOWLEDGE OF
THEM WOULD SUBJECT YOU TO CRIMINAL PROSECUTION? 

"MR. EMSPAK.  NO. I DON'T THINK THIS COMMITTEE HAS A RIGHT TO PRY
INTO MY ASSOCIATIONS.  THAT IS MY OWN POSITION." 

NO MORE OF THE RECORD IS PRINTED, AS THE EXCERPT SHOWS THE EXCHANGE
BETWEEN THE COMMITTEE AND PETITIONER UPON WHICH COUNT I OF THE
INDICTMENT AND THE CONSTITUTIONAL ISSUES ARISING THEREUNDER ARE BASED. 
THIS RELATED TO HIS ACQUAINTANCESHIP WITH JOSEPH PERSILY, A MAN WHO HAD
BEEN LISTED, ACCORDING TO A STIPULATION, AS A PERSON NAMED AS AN
OFFICIAL "OF THE UERMWA WITH COMMUNIST OR COMMUNIST FRONT
AFFILIATIONS."  NOTHING MORE FAVORABLE TO PETITIONER'S POSITION APPEARS
ON THE QUESTIONS EXAMINED OR ANY OTHER QUESTION. 

AS THE EMSPAK CASE OFFERS FOR ME A CLEAR EXAMPLE OF FAILURE TO CLAIM
HIS PRIVILEGE, I THINK IT BETTER NOT TO ENCUMBER THIS OPINION
UNNECESSARILY WITH QUOTATIONS FROM THE QUINN CASE. 

IN THE QUINN CASE, THE WITNESS ADOPTED IN ITS ENTIRETY THE TESTIMONY
OF A FORMER WITNESS, MR. THOMAS J. FITZPATRICK, CHIEF STEWARD OF LOCAL
NO. 601, UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA.  MR.
QUINN'S TESTIMONY ESTABLISHING HIS RELIANCE ON MR. FITZPATRICK'S
EVIDENCE WILL BE FOUND IN THIS COURT'S OPINION IN THE QUINN CASE, N. 8,
ANTE, P. 158.  THE HEARING OPENED WITH A DECLARATION BY MR. FITZPATRICK
OF MINORITY RIGHTS TO SECRECY AS FOLLOWS: 

THE CONSTITUTION OF THIS COUNTRY PROVIDES CERTAIN PROTECTION FOR
MINORITIES AND GIVES THE PRIVILEGE FOR PEOPLE TO SPEAK AND THINK AS
THEY FEEL THAT THEY SHOULD AND WANT TO.  IT ALSO GIVES THE PRIVILEGE
THAT PEOPLE CAN HAVE OPINIONS OR BELIEFS THAT MAY BE UNPOPULAR.  IN MY
OPINION, IT GIVES THEM THE RIGHT TO HOLD THOSE OPINIONS SECRET IF THEY
SO DESIRE.  THIS IS A PROTECTION OF THE FIRST AMENDMENT OF THE
CONSTITUTION, SUPPLEMENTED BY THE FIFTH AMENDMENT. 

"MR. WOOD.  WHAT IS? 

"MR. FITZPATRICK.  THE RIGHT OF THE PEOPLE GUARANTEED BY THE
CONSTITUTION." 

THIS CERTAINLY INDICATED NO CLAIM OF THE PRIVILEGE AGAINST SELF
INCRIMINATION.  MR. FITZPATRICK WAS THEN ASKED:  "ARE YOU NOW OR HAVE
YOU EVER BEEN A MEMBER OF THE COMMUNIST PARTY?"  AFTER FENCING WITH THE
COMMITTEE ABOUT PRYING INTO HIS MIND, HE SAID: 

"MR. FITZPATRICK.  I WILL ANSWER THE QUESTION.  THE CONSTITUTION
GUARANTEES THE RIGHT TO ME AND EVERY OTHER CITIZEN TO HAVE BELIEFS,
WHETHER THEY ARE POPULAR OR UNPOPULAR, AND TO KEEP THEM TO THEMSELVES
IF THEY SEE FIT, AND I HAVE NO INTENTION OF BEING A PARTY TO WEAKENING
OR DESTROYING THAT PROTECTION IN THE CONSTITUTION.  I FEEL WHEN I TAKE
THIS POSITION THAT I AM ONE OF THE REAL AMERICANS, AND NOT LIKE SOME OF
THE PHONIES WHO APPEAR HERE." 

LATER ON HE WAS ASKED WHETHER HE HAD ASKED A MR. COPELAND TO SIGN AN
APPLICATION FOR MEMBERSHIP IN A COMMUNIST ORGANIZATION.  IN ANSWER TO
THAT QUESTION THIS OCCURRED: 

"MR. FITZPATRICK.  MR. CHAIRMAN, DO I HAVE TO GIVE YOU MY ANSWER
AGAIN? 

"MR. WOOD.  I JUST WANT TO KNOW WHETHER YOU DID THAT ONE THING. 

"MR. FITZPATRICK.  I SAY IF I DID OR IF I DID NOT, REGARDLESS OF WHAT
I DID, IT IS NOT THE AFFAIR OF THIS COMMITTEE TO PRY INTO THIS KIND OF
ACTION. 

"MR. WOOD.  AND FOR THAT REASON DO YOU DECLINE TO ANSWER THE
QUESTION? 

"MR. FITZPATRICK.  I STAND ON THE PROTECTION OF THE CONSTITUTION, THE
FIRST AND FIFTH AMENDMENTS. 

"MR. WOOD.  AND FOR THOSE REASONS DECLINE TO ANSWER THE QUESTION
FURTHER? 

"MR. FITZPATRICK.  I HAVE ANSWERED THE QUESTION. 

"MR. WOOD.  I SAY, DO YOU DECLINE TO ANSWER IT FURTHER? 

"MR. FITZPATRICK.  I HAVE NO FURTHER COMMENT ON IT." 

THE TWO REFERENCES TO THE FIRST AND FIFTH AMENDMENTS ARE THE ONLY
PHRASES IN THE WHOLE EXAMINATION THAT COULD BE THOUGHT TO REFER TO A
CLAIM OF IMMUNITY AGAINST SELF-INCRIMINATION. 

FROM THESE VAGUE STATEMENTS OF MESSRS.  QUINN AND EMSPAK THE COURT
DRAWS THE CONCLUSION THAT THEY WERE SUFFICIENT TO APPRISE THE COMMITTEE
OF THE WITNESSES' INTENTION TO CLAIM THE PRIVILEGE AGAINST SELF
INCRIMINATION.  THE COURT FINDS SUPPORT FOR ITS THEORY OF "INTENTION"
TO CLAIM PRIVILEGE FROM A STATEMENT IN THE GOVERNMENT'S BRIEF IN THE
QUINN CASE SET OUT BELOW.  (FN9)  WITH ALL RESPECT, I FAIL TO SEE ANY
CONCESSION BY THE GOVERNMENT OF EVIDENCE THAT SHOULD APPRISE THE
COMMITTEE OF A CLAIM OF PRIVILEGE AGAINST SELF-INCRIMINATION.  THE
FIRST SENTENCE OF THE QUOTATION FROM THE BRIEF EMPHATICALLY DENIES THE
COURT'S ASSUMPTION. 

WHAT THE RECORDS SHOW TO ME IS A CALCULATED EFFORT BY MESSRS.  QUINN,
EMSPAK AND FITZPATRICK TO HINDER AND DELAY A CONGRESSIONAL COMMITTEE IN
ITS EFFORT TO BRING OUT FACTS IN ORDER TO DETERMINE WHETHER OF NOT TO
UNDERTAKE LEGISLATION.  SUCH QUIBBLING EVADES THE BASIS FOR AN
UNDERSTANDING OF THE ATTITUDE OF THE WITNESS AS TO PRIVILEGE.  IT DOES
NOT APPRISE THE COMMITTEE OF THE CLAIM OF PRIVILEGE AND SHOULD NOT BE
HELD PERMISSIBLE.  FACTUAL TESTIMONY IS THE MEANS FOR THE ASCERTAINMENT
OF TRUTH IN LEGALLY ORGANIZED INQUIRIES.  SILENCE BRINGS THE
PROCEEDINGS TO A DEAD END.  THE BURDEN IS ON THE WITNESS TO ADVISE HIS
INTERROGATORS OF A CLAIM TO PRIVILEGE IN UNDERSTANDABLE TERMS.  (FN10)
IN THE CONTEXT OF THIS TESTIMONY, THE ADOPTION BY MR. QUINN OF MR.
FITZPATRICK'S REFERENCE TO THE FIRST AND FIFTH AMENDMENTS SMACKS
STRONGLY OF A "DUE PROCESS" FIFTH AMENDMENT CLAIM.  MR. FITZPATRICK HAD
BEEN SPEAKING OF HIS RIGHT OF PRIVACY, SPEECH AND ASSOCIATION, NOT OF
THE PRIVILEGE AGAINST SELF-INCRIMINATION.  HE THEN ADDED: 

"MR. CHAIRMAN, IF YOU WANT TO ASK ME QUESTIONS ABOUT MY ACTIONS OF
LOYALTY, QUESTION MY LOYALTY, YOU HAVE A RIGHT TO DO SO AND I WILL
ANSWER THEM.  SO FAR AS MY POLITICAL OPINIONS, I HAVE STATED MY
POSITION ON THAT.  YOU ARE ASKING THE SAME QUESTION IN A DIFFERENT
WAY.  BUT IF MY MEMORY IS RIGHT, THERE WAS NO SUCH THING AS A COMMUNIST
PARTY WHEN THAT AFFIDAVIT IS SUPPOSED TO HAVE BEEN." 

THE SAME ATTITUDE SHOWS THROUGH MR. EMSPAK'S TESTIMONY.  IN ADDITION
THERE WAS A DIRECT REFUSAL BY MR. EMSPAK TO CLAIM PRIVILEGE.  SEE PP.
179-180, SUPRA. 

THE COURT SUGGESTS THAT THIS SHOULD NOT BE CONSTRUED AS A WAIVER OF
THE CLAIM AND CITES SMITH V. UNITED STATES, 337 U.S. 137, 151.  I DO
NOT THINK THE SMITH CASE APPOSITE.  IN THAT CASE THERE HAD BEEN A CLEAR
CLAIM OF PRIVILEGE FOR IMMUNITY.  WE HELD THAT REQUIRED A DEFINITE,
UNAMBIGUOUS WAIVER.   HERE THERE WAS, IN MY VIEW, NO CLAIM OF
PRIVILEGE. 

THE OPINION OF THE TRIAL COURT, PRINTED ONLY IN THE RECORD, PP. 224
227, HOLDS "THE DEFENDANT FAILED TO ASSERT THE PRIVILEGE."  SIX OF THE
NINE MEMBERS OF THE COURT OF APPEALS HELD THAT EMSPAK HAD NOT CLAIMED. 
THREE DID NOT REACH THAT ISSUE. 

I CONCUR WITH THE COURT IN ITS ASSERTIONS OF THE VALUE OF THE SELF
INCRIMINATION CLAUSE - THAT IT MAY BE USED AS A SHIELD BY GUILTY AND
INNOCENT ALIKE - AND THAT IT SHOULD BE CONSTRUED LIBERALLY AS IT HAS
BEEN TO COVER MORE THAN THE LITERAL READING OF THE PHRASE "NO PERSON
...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF" WOULD SUGGEST.  (FN11)  THIS SYMPATHETIC ATTITUDE TOWARD THE
CLAUSE SHOULD NOT LEAD US TO INTRUDE OUR IDEAS OF PROPRIETY INTO THE
CONDUCT OF CONGRESSIONAL HEARINGS.  THE RULE LAID DOWN BY THE COURT
TODAY MERELY ADDS ANOTHER MEANS FOR INTERFERENCE AND DELAY IN
INVESTIGATIONS AND TRIALS, WITHOUT ADDING TO THE PROTECTION OF THE
CONSTITUTIONAL RIGHT OF FREEDOM FROM SELF-INCRIMINATION.  THIS IS
CONTRARY TO THE POLICY OF CONGRESS TO GET INFORMATION FROM WITNESSES
EVEN WITH A CLAIM OF IMMUNITY, THROUGH THE COMPULSORY TESTIMONY ACT OF
AUGUST 20, 1954, 68 STAT. 745. 

                      II. DIRECTION TO ANSWER. 

THE COURT ADVANCES A SECOND GROUND IN THE QUINN AND EMSPAK CASES FOR
ITS DIRECTION THAT THE DISTRICT COURT ENTER A JUDGMENT OF ACQUITTAL. 
THIS IS THAT A DELIBERATE INTENT TO REFUSE TO ANSWER THE COMMITTEE'S
QUESTIONS IS REQUIRED FOR THE JUDGMENT OF CONTEMPT.  THE COURT
EXPLAINS, QUINN CASE, P. 166, THAT INTENT MAY BE IMPLIED ONLY WHEN THE
WITNESS IS "CLEARLY APPRISED THAT THE COMMITTEE DEMANDS HIS ANSWER
NOTWITHSTANDING HIS OBJECTIONS," AND, EMSPAK CASE, P. 202, "WITHOUT
SUCH APPRISAL THERE IS LACKING THE ELEMENT OF DELIBERATENESS NECESSARY
FOR A CONVICTION UNDER SEC. 192 FOR A REFUSAL TO ANSWER."  THE COURT
CONCLUDES THAT THE WITNESS WAS NOT "SPECIFICALLY" DIRECTED TO ANSWER,
OR OTHERWISE INFORMED AS TO THE DISPOSITION OF HIS OBJECTIONS. 

THE COURT MUST ADMIT, AS IT DOES, QUINN OPINION, P. 162, THAT NO
PARTICULAR FORM OF WORDS IS REQUIRED.  ON THE OTHER HAND, I MUST ADMIT
THAT A WITNESS MUST BE CLEARLY APPRISED THAT HIS CLAIM OF THE FREEDOM
FROM AN OBLIGATION TO ANSWER IS NOT ACCEPTED BY THE INTERROGATOR. 
(FN12)  I AGREE THAT THE OFFENSE PUNISHABLE UNDER THE STATUE IS A
DELIBERATE, INTENTIONAL REFUSAL - NOT AN INADVERTENCE, ACCIDENT OR
MISUNDERSTANDING.  (FN13)  GOOD FAITH IN REFUSING TO ANSWER, HOWEVER,
IS NO DEFENSE SO LONG AS THE REFUSAL IS INTENTIONAL, DELIBERATE. 
SINCLAIR V. UNITED STATES, 279 U.S. 263, 299, POINTS OUT THAT: 

"THE GIST OF THE OFFENSE IS REFUSAL TO ANSWER PERTINENT QUESTIONS
...  .  INTENTIONAL VIOLATION IS SUFFICIENT TO CONSTITUTE GUILT." 

UNITED STATES V. MURDOCK, 284 U.S. 141, INVOLVED A STATUTE VERY
SIMILAR TO THE ONE HERE INVOLVED.  IN THAT CASE, MURDOCK HAD BEEN
CALLED TO TESTIFY BEFORE AN INTERNAL REVENUE AGENT AND REFUSED TO
ANSWER CERTAIN QUESTIONS ON THE GROUND THAT HE MIGHT BE INCRIMINATED
UNDER STATE LAW.  WE SAID IN THAT CASE: 

"WHILE UNDOUBTEDLY THE RIGHT OF A WITNESS TO REFUSE TO ANSWER LEST HE
INCRIMINATE HIMSELF MAY BE TESTED IN PROCEEDINGS TO COMPEL ANSWER,
THERE IS NO SUPPORT FOR THE CONTENTION THAT THERE MUST BE SUCH A
DETERMINATION OF THAT QUESTION BEFORE PROSECUTION FOR THE WILLFUL
FAILURE SO DENOUNCED.  BY THE VERY TERMS OF THE DEFINITION THE OFFENSE
IS COMPLETE AT THE TIME OF SUCH FAILURE."  284 U.S., AT 148. 

THERE WAS NO DIRECTION TO ANSWER IN EITHER CASE.  WHILE THE POINT WAS
NOT RAISED, THEIR HOLDING AS TO WHAT ESTABLISHES THE OFFENSE DOES NOT
INCLUDE A SPECIFIC DIRECTION TO ANSWER AS ONE OF THE ELEMENTS. 

WHILE THE COURT HELD IN SINCLAIR THAT DELIBERATE REFUSAL WAS ALL THAT
WAS REQUIRED TO CONSUMMATE THE OFFENSE UNDER 2 U.S.C. SEC. 192, AT THE
SAME TIME WE WERE AT PAINS TO POINT OUT "THERE WAS NO MISAPPREHENSION"
ON THE PART OF THE WITNESS "AS TO WHAT WAS CALLED FOR."  P. 299.  IT IS
BECAUSE THE REFUSAL MUST BE INTENTIONAL, THAT THE WITNESS MUST KNOW
THAT HIS EXCUSES FOR NOT ANSWERING HAVE NOT BEEN ACCEPTED BY THE
COMMITTEE.  WHEN A WITNESS INTERPOSES OBJECTIONS TO TESTIFYING WHICH
ARE NOT FRIVOLOUS, IT IS DIFFICULT TO SAY HE INTENTIONALLY REFUSED TO
ANSWER WHEN THE INTERROGATION CONTINUES WITHOUT PAUSE TO SOME OTHER
QUESTION.  I AGREE THAT THE COMMITTEE CANNOT, IN FAIRNESS TO THE
WITNESS, LULL HIM INTO THINKING THAT HIS REFUSAL TO ANSWER IS
ACCEPTABLE AND THEN CITE HIM FOR CONTEMPT.  REFUSAL UNDER SUCH
CIRCUMSTANCES WOULD NOT BE DELIBERATE.  HOWEVER, SPECIFIC DIRECTION TO
ANSWER IS NOT NECESSARY; ONLY INTENTIONAL REFUSAL IS.    THE COURT
SUGGESTS, N. 36, QUINN CASE, THAT CONGESSIONAL COMMITTEES FOLLOW THE
PRACTICE OF OTHER LEGISLATIVE BODIES AND DETERMINE FIRST THE VALIDITY
OF THE WITNESS' REASON FOR FAILURE TO ANSWER AND THEN DIRECT HIM TO
ANSWER.  THE DEFECT IN THAT ANALOGY IS THAT THE COURT SEEMS TO ASSUME
IN ITS NOTE A FORMAL VOTE AND A SPECIFIC DIRECTION TO ANSWER.  I THINK
SUCH A SPECIFIC DIRECTION IS INCONSISTENT WITH ITS PAGE 170 ADMISSION
THAT NO RITUALISTIC FORMULA IS REQUIRED.  NO PROVISION OF THE STATUTE,
NOR OF ANY RULE OF CONGRESS IS CITED BY THE COURT TO SUPPORT A
REQUIREMENT OF SPECIFIC DIRECTION.  THE COURT OF APPEALS HELD DIRECTION
TO ANSWER UNNECESSARY SO LONG AS THE WITNESS KNEW THAT THE COMMITTEE
HAD NOT ACCEDED TO HIS REFUSAL.  (FN14)  AS I STATED ABOVE, IN MY VIEW
IT IS SUFFICIENT IF THE WITNESS KNOWS HIS EXCUSES ARE NOT ACCEPTABLE TO
THE COMMITTEE AND THAT HE IS REQUIRED TO ANSWER.   WHETHER OR NOT THE
WITNESSES KNEW THIS IN THESE TWO CASES IS THE QUESTION ON THIS SECOND
POINT. 

THE COURT HOLDS THAT THE WITNESSES DID PLEAD THE PRIVILEGE AND WERE
NOT ADVISED THAT THE COMMITTEE REFUSED TO ACCEPT THEIR PLEAS.  I
DISAGREE.  AFTER MR. QUINN HAD ADOPTED MR. FITZPATRICK'S WORDS AS HIS
OWN METHOD OF REFUSING TO ANSWER THE QUESTION AS HERETOFORE DISCUSSED,
IT WILL BE SEEN THAT MR. WOOD, A COMMITTEE MEMBER, SAID TO MR. QUINN: 

"MR. WOOD.  YOU HAVE STATED YOUR POSITION.  HAVING ENUNCIATED YOUR
SENTIMENTS AND YOUR POSITION, WILL YOU NOW ANSWER THE QUESTION WHETHER
YOU ARE NOW OR EVER HAVE BEEN A MEMBER OF THE COMMUNIST PARTY, OR DO
YOU DECLINE TO ANSWER? 

"MR. QUINN.  I DECLINE TO DISCUSS WITH THE COMMITTEE QUESTIONS OF
THAT NATURE." 

THIS, I THINK, ADVISED MR. QUINN THAT THE COMMITTEE REFUSED TO ACCEPT
HIS REPLY AS A SATISFACTORY EXCUSE AND REQUIRED HIM TO PROCEED. 

I THINK, TOO, THAT MR. EMSPAK WAS ADVISED HIS ANSWER WAS NOT ACCEPTED
AND THAT HE WAS REQUIRED TO PROCEED.  WHEN HE WAS ASKED REPEATEDLY AS
TO WHETHER HE WAS ACQUAINTED WITH JOSEPH PERSILY, HE SAID AGAIN: 

"MR. EMSPAK.  FOR THE REASONS I STATED BEFORE, I ANSWERED IT. 

"MR. MOULDER.  THEN YOU REFUSE TO ANSWER THE QUESTION? 

"MR. EMSPAK.  NO. I ANSWERED IT. 

"MR. TAVENNER.  ARE YOU OR ARE YOU NOT ACQUAINTED WITH JOSEPH
PERSILY? 

"MR. EMSPAK.  I ANSWERED THE QUESTION. 

"MR. TAVENNER.  YOUR REPLIES ARE A REFUSAL TO COMPLY WITH THE REQUEST
TO ANSWER IT? 

"(WITNESS CONFERS WITH HIS COUNSEL.) 

"MR. MOULDER.  THE RECORD WILL REVEAL THAT YOU HAVE NOT ANSWERED THE
QUESTION. 

"MR. EMSPAK.  I HAVE ANSWERED IT TO THE BEST OF MY ABILITY UNDER THE
CIRCUMSTANCES." 

ON CONTINUED QUESTIONING AS TO MR. PERSILY, HE CONTINUED, "I WILL
GIVE THE SAME ANSWER."  I CANNOT BUT CONCLUDE, AS DID THE LOWER COURTS,
THAT THE WITNESS EMSPAK WAS ADEQUATELY INFORMED THAT HIS OBJECTIONS
WERE REFUSED AND THE MUST ANSWER. 

THE COURT DIRECTS ACQUITTAL OF BOTH PETITIONERS ON THE GROUNDS OF
CLAIM OF PRIVILEGE AND FAILURE TO SPECIFICALLY OVERRULE THEIR
OBJECTIONS OR DIRECT THEM TO ANSWER.  I DISAGREE WITH BOTH GROUNDS. 
CONFINING EXPRESSION OF MY VIEWS TO THOSE ISSUES, I DISSENT. 

FN1  BLAU V. UNITED STATES, 340 U.S. 159; EMSPAK V. UNITED STATES,
POST, P. 190, AT P. 199; SEE THE COURT'S OPINION IN QUINN V. UNITED
STATES, SUPRA, AT P. 162. 

FN2  SINCLAIR V. UNITED STATES, 279 U.S. 263, 299(7). 

FN3  VAJTAUER V. COMMISSIONER, 273 U.S. 103, 113; UNITED STATES V.
MONIA, 317 U.S. 424, 427, DISSENT 439; ROGERS V. UNITED STATES, 340
U.S. 367, 371; CF. ADAMS V. MARYLAND, 347 U.S. 179. 

FN4  SEE MCCARTHY V. ARNDSTEIN, 266 U.S. 34; COUNSELMAN V. HITCHCOCK,
142 U.S. 547. 

FN5  HEARINGS BEFORE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES
REGARDING COMMUNIST INFILTRATION OF LABOR UNIONS, PART 1, 81ST CONG.,
1ST SESS. 541. 

FN6  SINCLAIR V. UNITED STATES, 279 U.S. 263, 299. 

FN7  PROCEEDINGS AGAINST JULIUS EMSPAK, H.R. REP. NO. 2847, 81ST
CONG., 2D SESS., P. 10; SAME AGAINST THOMAS QUINN, H.R. REP. NO. 2857,
P. 3. 

FN8  ANY PERSON WHO DESIRES TO SEE THE COMPLETE ESSENTIAL TESTIMONY
MAY CONSULT THE PROCEEDINGS, CITED IN THE PRECEDING NOTE.  SEE ALSO
H.R. REP. NO. 2856. 

FN9  "UNDER THESE CIRCUMSTANCES, WE CONTEND THAT PETITIONER DID NOT
ADEQUATELY INFORM THE COMMITTEE THAT HE WAS CLAIMING THE PROTECTION OF
THE PRIVILEGE. 

"MOREOVER, WE FEEL BOUND TO POINT OUT THE PROBABILITY THAT
PETITIONER'S AMBIGUOUS REFERENCES TO THE FIFTH AMENDMENT (AND THOSE OF
THE PETITIONER EMSPAK IN NO. 9), WHICH HE NOW CONTENDS CONSTITUTED A
CLAIM OF PRIVILEGE, WERE PHRASED DELIBERATELY IN SUCH VAGUE TERMS SO AS
TO ENABLE PETITIONER (AND EMSPAK) TO OBTAIN THE BENEFIT OF THE
PRIVILEGE WITHOUT INCURRING THE POPULAR OPPROBRIUM WHICH OFTEN ATTACHES
TO ITS EXERCISE.  THIS SUGGESTION IS NOT BASED MERELY UPON THE OBVIOUS
FACT THAT IT WOULD HAVE BEEN EXTREMELY EASY FOR PETITIONER TO HAVE
INFORMED THE COMMITTEE THAT ANSWERS TO ITS QUESTIONS MIGHT INCRIMINATE
OR ENDANGER HIM.  IT IS ALSO BASED UPON FACTS OF RECORD, AND MATTERS
APPROPRIATE FOR JUDICIAL NOTICE, WHICH REVEAL THAT PETITIONER (AND
FITZPATRICK AND EMSPAK) HAD COMPELLING AND IMMEDIATE REASONS TO REFRAIN
FROM MAKING ANY PUBLIC STATEMENTS FROM WHICH IT MIGHT BE INFERRED,
PROPERLY OR NOT, THAT THEY WERE COMMUNISTS OR COMMUNIST SYMPATHIZERS." 
GOVT.  BR., 33-34. 

FN10  SEE NOTE 3, SUPRA. 

FN11 SEE, FOR EXAMPLE, COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562;
BLAU V. UNITED STATES (TWO CASES), 340 U.S. 159 AND 332 (PRIVILEGE
AVAILABLE AT GRAND JURY PROCEEDINGS); MCCARTHY V. ARNDSTEIN, 266 U.S.
34, 40, "THE PRIVILEGE IS NOT ORDINARILY DEPENDENT UPON THE NATURE OF
THE PROCEEDINGS IN WHICH THE TESTIMONY IS SOUGHT OR IS TO BE USED.  IT
APPLIES ALIKE TO CIVIL AND CRIMINAL PROCEEDINGS, WHEREVER THE ANSWER
MIGHT TEND TO SUBJECT TO CRIMINAL RESPONSIBILITY HIM WHO GIVES IT.  THE
PRIVILEGE PROTECTS A MERE WITNESS AS FULLY AS IT DOES ONE WHO IS ALSO A
PARTY DEFENDANT" (PROCEEDINGS IN BANKRUPTCY); BROWN V. WALKER, 161 U.S.
591, AND SEE ALSO GRAHAM V. UNITED STATES, 99 F.2D 746 (ADMINISTRATIVE
PROCEEDINGS); SEE ALSO WOOD V. UNITED STATES, 75 U.S. APP. D.C. 274,
128 F.2D 265 (PRELIMINARY HEARINGS). 

FN12  FIELDS V. UNITED STATES, 82 U.S. APP. D.C. 354, 164 F.2D 97,
100; BART V. UNITED STATES, 91 U.S. APP. D.C. 370, 372-373, 203 F.2D
45, 48; EMSPAK V. UNITED STATES, 91 U.S. APP. D.C.  378, 380-381, 203
F.2D 54, 56. 

FN13  TOWNSEND V. UNITED STATES, 68 APP. D.C. 223, 229, 95 F.2D 352,
358; FIELDS V. UNITED STATES, 82 U.S. APP. D.C. 354, 357, 164 F.2D 97,
100. 

FN14  THE INSTANT CASE AND THE EMSPAK AND BART CASES ALL DEAL AT
LENGTH WITH THIS QUESTION.  91 U.S. APP. D.C., AT 349, 380-381, 374
375, 203 F.2D, AT 25, 56, 50.  SEE ALSO, COMMENTS, 40 GEO. L.J. 137; 41
GEO. L.J. 433. 

MR. JUSTICE MINTON JOINS IN SO MUCH OF THIS OPINION AS APPLIES TO
EMSPAK V. UNITED STATES, POST, P. 190. 
..END :

















EMSPAK V. UNITED STATES 349 U.S. 190 


NO. 9.  ARGUED JANUARY 12-13, 1954 - REARGUED APRIL 4-5, 1955 - DECIDED
MAY 23, 1955 - 91 U.S. APP. D.C. 378, 203 F.2D 54, REVERSED. 


PETITIONER, AN OFFICER OF A LABOR UNION, WAS SUMMONED TO TESTIFY
BEFORE A CONGRESSIONAL COMMITTEE INVESTIGATING ALLEGED COMMUNIST
INFILTRATION OF LABOR UNIONS IN DEFENSE PLANTS.  HE REFUSED TO ANSWER
EIGHT QUESTIONS CONCERNING HIS ALLEGED MEMBERSHIP AND ACTIVITIES IN THE
COMMUNIST PARTY, TWO QUESTIONS CONCERNING HIS ALLEGED MEMBERSHIP IN TWO
OTHER ORGANIZATIONS WHICH HAD BEEN CITED BY THE COMMITTEE AS COMMUNIST
FRONT ORGANIZATIONS, AND 58 QUESTIONS AS TO WHETHER HE KNEW CERTAIN
INDIVIDUALS WHO HAD BEEN CHARGED WITH HAVING COMMUNIST AFFILIATIONS AND
WHETHER THEY HAD EVER HELD OFFICIAL POSITIONS IN THE UNION.  HE BASED
HIS REFUSAL TO ANSWER ON "PRIMARILY THE FIRST AMENDMENT, SUPPLEMENTED
BY THE FIFTH."  THE COMMITTEE DID NOT ASK HIM TO STATE MORE
SPECIFICALLY THE GROUND FOR HIS REFUSAL TO ANSWER, AND IT DID NOT
SPECIFICALLY OVERRULE HIS OBJECTION OR DIRECT HIM TO ANSWER.  HELD:  IN
HIS TRIAL FOR A VIOLATION OF 2 U.S.C. SEC. 192, THE DISTRICT COURT
SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL.  PP. 191-202. 

(A)  PETITIONER'S REFERENCE TO "PRIMARILY THE FIRST AMENDMENT,
SUPPLEMENTED BY THE FIFTH" WAS SUFFICIENT TO INVOKE HIS CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION.  QUINN V. UNITED STATES, ANTE, P.
155.  PP. 194-195. 

(B)  PETITIONER'S EQUIVOCAL ANSWER OF "NO" TO A QUESTION AS TO
WHETHER HE FELT THAT REVEALING HIS KNOWLEDGE WOULD SUBJECT HIM TO
CRIMINAL PROSECUTION DID NOT CONSTITUTE AN EFFECTIVE WAIVER OR
DISCLAIMER OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  SMITH V.
UNITED STATES, 337 U.S. 137.  PP. 195-198. 

(C)  THE EIGHT QUESTIONS CONCERNING PETITIONER'S ALLEGED MEMBERSHIP
IN THE COMMUNIST PARTY FELL WITHIN THE SCOPE OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION.  BLAU V. UNITED STATES, 340 U.S. 159.  PP. 198
199. 

(D)  SO DID THE TWO QUESTIONS CONCERNING HIS ALLEGED MEMBERSHIP IN
TWO OTHER ORGANIZATIONS WHICH HAD PREVIOUSLY BEEN CITED BY THE
COMMITTEE AS COMMUNIST-FRONT ORGANIZATIONS.  P. 199. 

(E)  SINCE THE RECORD REVEALS THAT THEY WERE ASKED IN A SETTING OF
POSSIBLE INCRIMINATION, THE 58 QUESTIONS CONCERNING PETITIONER'S
ASSOCIATIONS WERE ALSO WITHIN THE SCOPE OF THE PRIVILEGE AGAINST SELF
INCRIMINATION.  PP. 199-201. 

(F)  THE COMMITTEE DID NOT ADEQUATELY APPRISE PETITIONER THAT AN
ANSWER WAS REQUIRED NOTWITHSTANDING HIS OBJECTION; AND, WITHOUT SUCH AN
APPRISAL, THERE IS LACKING THE ELEMENT OF DELIBERATENESS NECESSARY FOR
CONVICTION UNDER SEC. 192 FOR A REFUSAL TO ANSWER.  QUINN V. UNITED
STATES, ANTE, P. 155.  P. 202. 

EMSPAK V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO QUINN V. UNITED STATES, ANTE, P. 155. 
CHALLENGED IN EACH PROCEEDING IS A CONVICTION UNDER 2 U.S.C. SEC. 192
IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  (FN1) THE TWO
CASES AROSE OUT OF THE SAME INVESTIGATION BY THE COMMITTEE ON UN
AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES.  BECAUSE OF THE
SIMILARITY OF THE LEGAL ISSUES PRESENTED, THE CASES WERE CONSOLIDATED
FOR ARGUMENT IN THIS COURT. 

PURSUANT TO SUBPOENA, PETITIONER APPEARED ON DECEMBER 5, 1949, BEFORE
A SUBCOMMITTEE OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES.  THE
SUBCOMMITTEE CONSISTED OF A SINGLE MEMBER, REP. MORGAN M. MOULDER. 
PETITIONER WAS THEN THE GENERAL SECRETARY-TREASURER OF THE UNITED
ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA AS WELL AS EDITOR OF THE
UE NEWS, THE UNION'S OFFICIAL PUBLICATION.  THE SUBCOMMITTEE'S HEARINGS
HAD PREVIOUSLY BEEN ANNOUNCED AS CONCERNING "THE QUESTION OF COMMUNIST
AFFILIATION OR ASSOCIATION OF CERTAIN MEMBERS" OF THE UNION AND "THE
ADVISABILITY OF TIGHTENING PRESENT SECURITY REQUIREMENTS IN INDUSTRIAL
PLANTS WORKING ON CERTAIN GOVERNMENT CONTRACTS."  (FN2) 

PETITIONER WAS ASKED A TOTAL OF 239 QUESTIONS.  MOST DEALT WITH THE
STRUCTURE OF THE UNION, THE DUTIES OF ITS OFFICERS, THE SCOPE OF ITS
MEMBERSHIP AND BARGAINING COMMITMENTS, THE ALLEGED SIMILARITY IN
POLICIES OF THE UE NEWS AND THE COMMUNIST PARTY, THE NON-COMMUNIST
AFFIDAVIT THAT PETITIONER HAD FILED WITH THE NATIONAL LABOR RELATIONS
BOARD, AND RELATED MATTERS.  PETITIONER ANSWERED ALL OF THESE
QUESTIONS.  HE DECLINED, HOWEVER, TO ANSWER 68 OF THE 239 QUESTIONS. 
THESE 68 QUESTIONS DEALT EXCLUSIVELY WITH PETITIONER'S ASSOCIATIONS AND
AFFILIATIONS.  HE BASED HIS REFUSAL ON "PRIMARILY THE FIRST AMENDMENT,
SUPPLEMENTED BY THE FIFTH."  (FN3)  OF THE 68 QUESTIONS, 58 ASKED IN
SUBSTANCE THAT HE STATE WHETHER OR NOT HE WAS ACQUAINTED WITH CERTAIN
NAMED INDIVIDUALS AND WHETHER OR NOT THOSE INDIVIDUALS HAD EVER HELD
OFFICIAL POSITIONS IN THE UNION.  TWO OF THE QUESTIONS CONCERNED
PETITIONER'S ALLEGED MEMBERSHIP IN THE NATIONAL FEDERATION FOR
CONSTITUTIONAL LIBERTIES AND THE CIVIL RIGHTS CONGRESS.  EIGHT
QUESTIONS CONCERNED PETITIONER'S ALLEGED MEMBERSHIP AND ACTIVITY IN THE
COMMUNIST PARTY. 

ON NOVEMBER 20, 1950, PETITIONER WAS INDICTED UNDER SEC. 192 FOR HIS
REFUSAL TO ANSWER THE 68 QUESTIONS.  (FN4)  SITTING WITHOUT A JURY, THE
DISTRICT COURT HELD THAT PETITIONER'S REFERENCES TO "PRIMARILY THE
FIRST AMENDMENT, SUPPLEMENTED BY THE FIFTH" WERE INSUFFICIENT TO INVOKE
THE FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION.  (FN5)  THE
DISTRICT COURT ACCORDINGLY FOUND PETITIONER GUILTY ON ALL 68 COUNTS AND
SENTENCED HIM TO A TERM OF SIX MONTHS AND A FINE OF $500.  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, THREE JUDGES DISSENTING,
AFFIRMED EN BANC.  (FN6)  FROM THAT DECISION THIS COURT GRANTED
CERTIORARI.  (FN7)

                  I. 

AS POINTED OUT IN QUINN V. UNITED STATES, SUPRA, NO RITUALISTIC
FORMULA OR TALISMANIC PHRASE IS ESSENTIAL IN ORDER TO INVOKE THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  ALL THAT IS NECESSARY IS AN
OBJECTION STATED IN LANGUAGE THAT A COMMITTEE MAY REASONABLY BE
EXPECTED TO UNDERSTAND AS AN ATTEMPT TO INVOKE THE PRIVILEGE.  IN THE
QUINN CASE WE HOLD THAT QUINN'S REFERENCES TO "THE FIRST AND FIFTH
AMENDMENTS" AND "THE FIRST AMENDMENT TO THE CONSTITUTION, SUPPLEMENTED
BY THE FIFTH AMENDMENT" WERE SUFFICIENT TO MEET THIS STANDARD.  IT
WOULD BE UNWARRANTED, WE THINK, TO REACH A DIFFERENT CONCLUSION HERE AS
TO PETITIONER'S PLEA BASED ON "PRIMARILY THE FIRST AMENDMENT,
SUPPLEMENTED BY THE FIFTH." 

THE GOVERNMENT DOES NOT EVEN ATTEMPT TO DISTINGUISH BETWEEN THE TWO
CASES IN THIS RESPECT.  APPARENTLY CONCEDING THAT PETITIONER AS WELL AS
QUINN INTENDED TO INVOKE THE PRIVILEGE, THE GOVERNMENT POINTS OUT "THE
PROBABILITY" THAT HIS REFERENCES TO THE FIFTH AMENDMENT WERE LIKEWISE
DELIBERATELY PHRASED IN MUFFLED TERMS "TO OBTAIN THE BENEFIT OF THE
PRIVILEGE WITHOUT INCURRING THE POPULAR OPPROBRIUM WHICH OFTEN ATTACHES
TO ITS EXERCISE."  (FN8)  ON THIS BASIS THE GOVERNMENT CONTENDS THAT
PETITIONER'S PLEA WAS NOT ADEQUATE.  THE ANSWER TO THIS CONTENTION IS
THREEFOLD.  FIRST, AN OBJECTION THAT IS SUFFICIENTLY CLEAR TO REVEAL A
PROBABLE INTENTION TO INVOKE THE PRIVILEGE CANNOT BE IGNORED MERELY
BECAUSE IT IS NOT PHRASED IN AN ORTHODOX MANNER.  SECOND, IF IT IS TRUE
THAT IN THESE TIMES A STIGMA MAY SOMEHOW RESULT FROM A WITNESS'
RELIANCE ON THE SELF-INCRIMINATION CLAUSE, A COMMITTEE SHOULD BE ALL
THE MORE READY TO RECOGNIZE A VEILED CLAIM OF THE PRIVILEGE. 
OTHERWISE, THE GREAT RIGHT WHICH THE CLAUSE WAS INTENDED TO SECURE
MIGHT BE EFFECTIVELY FRUSTRATED BY PRIVATE PRESSURES.  THIRD, IT SHOULD
BE NOTED THAT A COMMITTEE IS NOT OBLIGED TO EITHER ACCEPT OR REJECT AN
AMBIGUOUS CONSTITUTIONAL CLAIM THE VERY MOMENT IT IS FIRST PRESENTED. 
THE WAY IS ALWAYS OPEN FOR THE COMMITTEE TO INQUIRE INTO THE NATURE OF
THE CLAIM BEFORE MAKING A RULING.  IF THE WITNESS INTELLIGENTLY AND
UNEQUIVOCALLY WAIVES ANY OBJECTION BASED ON THE SELF-INCRIMINATION
CLAUSE, OR IF THE WITNESS REFUSES A COMMITTEE REQUEST TO STATE WHETHER
HE RELIES ON THE SELF-INCRIMINATION CLAUSE, HE CANNOT LATER INVOKE ITS
PROTECTION IN A PROSECUTION FOR CONTEMPT FOR REFUSING TO ANSWER THAT
QUESTION. 

THE GOVERNMENT ARGUES THAT PETITIONER DID IN FACT WAIVE THE
PRIVILEGE, AT LEAST AS TO ONE COUNT OF THE INDICTMENT, AND THAT THE
CONVICTION CAN BE SUSTAINED ON THAT COUNT ALONE.  (FN9)  IN RESPONSE TO
A QUESTION CONCERNING HIS ASSOCIATIONS, PETITIONER EXPRESSED
APPREHENSION THAT THE COMMITTEE WAS "TRYING TO PERHAPS FRAME PEOPLE FOR
POSSIBLE CRIMINAL PROSECUTION" AND ADDED THAT "I THINK I HAVE THE RIGHT
TO RESERVE WHATEVER RIGHTS I HAVE  ...  ."  (FN10)  THE FOLLOWING
COLLOQUY THEN TOOK PLACE:  (FN11) 

"MR. MOULDER.  IT IS YOUR FEELING THAT TO REVEAL YOUR KNOWLEDGE OF
THEM WOULD SUBJECT YOU TO CRIMINAL PROSECUTION? 

"MR. EMSPAK.  NO. I DON'T THINK THIS COMMITTEE HAS A RIGHT TO PRY
INTO MY ASSOCIATIONS.  THAT IS MY OWN POSITION." 

PETITIONER'S REPLY, IT IS CONTENDED, CONSTITUTED AN EFFECTIVE
DISCLAIMER OF THE PRIVILEGE.  WE FIND THIS CONTENTION WITHOUT MERIT. 
AS THIS COURT DECLARED IN SMITH V. UNITED STATES, 337 U.S. 137, 150:
"ALTHOUGH THE PRIVILEGE AGAINST SELF-INCRIMINATION MUST BE CLAIMED,
WHEN CLAIMED IT IS GUARANTEED BY THE CONSTITUTION  ...  .  WAIVER OF
CONSTITUTIONAL RIGHTS  ...  IS NOT LIGHTLY TO BE INFERRED.  A WITNESS
CANNOT PROPERLY BE HELD AFTER CLAIM TO HAVE WAIVED HIS PRIVILEGE  ...
UPON VAGUE AND UNCERTAIN EVIDENCE." 

THE SMITH CASE, WE BELIEVE, IS CONTROLLING HERE.  THE WITNESS IN THAT
CASE, AT THE OUTSET OF QUESTIONING BY AN OPA EXAMINER, STATED "I WANT
TO CLAIM PRIVILEGE AS TO ANYTHING I SAY."  THE EXAMINER ACCEPTED THIS
STATEMENT AS A PLEA OF POSSIBLE SELF-INCRIMINATION AND A REQUEST FOR
THE IMMUNITY AFFORDED TO INVOLUNTARY WITNESSES BY THE PRICE CONTROL ACT
OF 1942.  THE QUESTIONING PROCEEDED ON THAT BASIS.  IN RESPONSE TO ONE
QUESTION, HOWEVER, THE WITNESS MADE A STATEMENT THAT APPEARED TO THE
EXAMINER TO BE VOLUNTARY.  THIS COLLOQUY THEN ENSUED: 

"QUESTION:  THIS IS A VOLUNTARY STATEMENT.  YOU DO NOT CLAIM IMMUNITY
WITH RESPECT TO THAT STATEMENT? 

"ANSWER:  NO." 

IN A SUBSEQUENT PROSECUTION OF THE WITNESS FOR VIOLATION OF THE PRICE
CONTROL ACT, IT WAS HELD THAT HIS "NO" ANSWER WAIVED HIS IMMUNITY AT
LEAST AS TO THE ONE STATEMENT.  (FN12)  THIS COURT UNANIMOUSLY
REVERSED, STATING (337 U.S., AT 151):  "WITHOUT ANY EFFORT TO CLARIFY
THE 'NO,' THE EXAMINER WENT AHEAD AND HAD THE WITNESS RESTATE THE
SUBSTANCE OF THE LONG ANSWER  ...  WITHOUT ANY FURTHER INTIMATION THAT
THE SUBSEQUENT ANSWERS WERE CONSIDERED BY THE EXAMINER TO BE
VOLUNTARY.  WE DO NOT THINK UNDER THESE CIRCUMSTANCES THIS EQUIVOCAL
'NO' IS A WAIVER OF THE PREVIOUS DEFINITE CLAIM OF GENERAL PRIVILEGE
AGAINST SELF-INCRIMINATION."  SIMILARLY, IN THE INSTANT CASE, WE DO NOT
THINK THAT PETITIONER'S "NO" ANSWER CAN BE TREATED AS A WAIVER OF HIS
PREVIOUS EXPRESS CLAIM UNDER THE FIFTH AMENDMENT.  AT MOST, AS IN THE
SMITH CASE, PETITIONER'S "NO" IS EQUIVOCAL.  (FN13)  IT MAY HAVE MERELY
REPRESENTED A JUSTIFIABLE REFUSAL TO DISCUSS THE REASONS UNDERLYING
PETITIONER'S ASSERTION OF THE PRIVILEGE; THE PRIVILEGE WOULD BE OF
LITTLE AVAIL IF A WITNESS INVOKING IT WERE REQUIRED TO DISCLOSE THE
PRECISE HAZARD WHICH HE FEARS.  (FN14)  AND EVEN IF PETITIONER'S "NO"
ANSWER WERE TAKEN AS RESPONSIVE TO THE QUESTION, THE ANSWER WOULD STILL
BE CONSISTENT WITH A CLAIM OF THE PRIVILEGE.  THE PROTECTION OF THE
SELF-INCRIMINATION CLAUSE IS NOT LIMITED TO ADMISSIONS THAT "WOULD
SUBJECT A WITNESS TO CRIMINAL PROSECUTION"; FOR THIS COURT HAS
REPEATEDLY HELD THAT "WHETHER SUCH ADMISSIONS BY THEMSELVES WOULD
SUPPORT A CONVICTION UNDER A CRIMINAL STATUTE IS IMMATERIAL" (FN15) AND
THAT THE PRIVILEGE ALSO EXTENDS TO ADMISSIONS THAT MAY ONLY TEND TO
INCRIMINATE.  (FN16) IN ANY EVENT, WE CANNOT SAY THAT THE COLLOQUY
BETWEEN THE COMMITTEE AND PETITIONER WAS SUFFICIENTLY UNAMBIGUOUS TO
WARRANT FINDING A WAIVER HERE.  TO CONCLUDE OTHERWISE WOULD BE TO
VIOLATE THIS COURT'S OWN OFT-REPEATED ADMONITION THAT THE COURTS MUST
"INDULGE EVERY REASONABLE PRESUMPTION AGAINST WAIVER OF FUNDAMENTAL
CONSTITUTIONAL RIGHTS."  (FN17) 

THROUGHOUT THIS ENTIRE PROCEEDING - IN THE TRIAL IN THE DISTRICT
COURT, ON APPEAL IN THE COURT OF APPEALS, AND HERE ON CERTIORARI - THE
GOVERNMENT HAS NEVER DENIED THAT PETITIONER WOULD BE ENTITLED TO THE
PROTECTION OF THE PRIVILEGE IF HE DID IN FACT INVOKE IT.  AND DURING
ARGUMENT IN THIS COURT THE GOVERNMENT EXPRESSLY CONCEDED THAT ALL 68
QUESTIONS WERE OF AN INCRIMINATORY CHARACTER.  IN ADDITION, NEITHER THE
DISTRICT COURT NOR THE COURT OF APPEALS SAW FIT TO INTRODUCE THE ISSUE
INTO THE CASE.  WE ARE THEREFORE RELUCTANT TO DO SO NOW.  BUT DOUBTS ON
THE ISSUE BY SOME MEMBERS OF THE COURT MAKE ITS CONSIDERATION
NECESSARY. 

"TO SUSTAIN THE PRIVILEGE," THIS COURT HAS RECENTLY HELD, "IT NEED
ONLY BE EVIDENT 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."  (FN18)  AND NEARLY 150 YEARS AGO
CHIEF JUSTICE MARSHALL ENUNCIATED A SIMILAR TEST:  "MANY LINKS
FREQUENTLY COMPOSED THAT CHAIN OF TESTIMONY WHICH IS NECESSARY TO
CONVICT ANY INDIVIDUAL OF A CRIME.  IT APPEARS TO THE COURT TO BE THE
TRUE SENSE OF THE RULE THAT NO WITNESS IS COMPELLABLE TO FURNISH ANY
ONE OF THEM AGAINST HIMSELF."  (FN19)  APPLYING THIS TEST TO THE
INSTANT CASE, WE HAVE NO DOUBT THAT THE EIGHT QUESTIONS CONCERNING
PETITIONER'S ALLEGED MEMBERSHIP IN THE COMMUNIST PARTY FELL WITHIN THE
SCOPE OF THE PRIVILEGE.  (FN20)  THE SAME IS TRUE OF THE TWO QUESTIONS
CONCERNING PETITIONER'S ALLEGED MEMBERSHIP IN THE NATIONAL FEDERATION
FOR CONSTITUTIONAL LIBERTIES AND THE CIVIL RIGHTS CONGRESS; BOTH
ORGANIZATIONS HAD PREVIOUSLY BEEN CITED BY THE COMMITTEE AS COMMUNIST
FRONT ORGANIZATIONS.  THERE REMAINS FOR CONSIDERATION THE 58 QUESTIONS
CONCERNING PETITIONER'S ASSOCIATIONS.  THIS COURT HAS ALREADY MADE
ABUNDANTLY CLEAR THAT SUCH QUESTIONS, WHEN ASKED IN A SETTING OF
POSSIBLE INCRIMINATION, MAY FALL WITHIN THE SCOPE OF THE PRIVILEGE. 
(FN21) 

WHAT WAS THE SETTING - AS REVEALED BY THE RECORD - IN WHICH THESE
QUESTIONS WERE ASKED?  EACH OF THE NAMED INDIVIDUALS HAD PREVIOUSLY
BEEN CHARGED WITH HAVING COMMUNIST AFFILIATIONS.  ON OCTOBER 14, 1949,
LESS THAN TWO MONTHS PRIOR TO PETITIONER'S APPEARANCE BEFORE THE
COMMITTEE, ELEVEN PRINCIPAL LEADERS OF THE COMMUNIST PARTY IN THIS
COUNTRY HAD BEEN CONVICTED UNDER THE SMITH ACT FOR CONSPIRING TO TEACH
AND ADVOCATE THE VIOLENT OVERTHROW OF THE UNITED STATES.  (FN22)
PETITIONER WAS IDENTIFIED AT THEIR TRIAL AS A COMMUNIST AND AN
ASSOCIATE OF THE DEFENDANTS.  IT WAS REPORTED THAT SMITH ACT
INDICTMENTS AGAINST OTHER COMMUNIST LEADERS WERE BEING PREPARED.  ON
NOVEMBER 23, 1949, TWO WEEKS PRIOR TO PETITIONER'S APPEARANCE,
NEWSPAPERS CARRIED THE STORY THAT THE DEPARTMENT OF JUSTICE "WITHIN
THIRTY DAYS" WOULD TAKE "AN IMPORTANT STEP" TOWARD THE CRIMINAL
PROSECUTION OF PETITIONER IN CONNECTION WITH HIS NON-COMMUNIST
AFFIDAVIT FILED WITH THE NATIONAL LABOR RELATIONS BOARD.  (FN23) 

UNDER THESE CIRCUMSTANCES, IT SEEMS CLEAR THAT ANSWERS TO THE 58
QUESTIONS CONCERNING PETITIONER'S ASSOCIATIONS "MIGHT BE DANGEROUS
BECAUSE INJURIOUS DISCLOSURE COULD RESULT."  TO REVEAL KNOWLEDGE ABOUT
THE NAMED INDIVIDUALS - ALL OF THEM HAVING BEEN PREVIOUSLY CHARGED WITH
COMMUNIST AFFILIATIONS - COULD WELL HAVE FURNISHED "A LINK IN THE
CHAIN" OF EVIDENCE NEEDED TO PROSECUTE PETITIONER FOR A FEDERAL CRIME,
RANGING FROM CONSPIRACY TO VIOLATE THE SMITH ACT TO THE FILING OF A
FALSE NON-COMMUNIST AFFIDAVIT UNDER THE TAFT-HARTLEY ACT.  THAT BEING
SO, IT IS IMMATERIAL THAT SOME OF THE QUESTIONS SOUGHT INFORMATION
ABOUT ASSOCIATIONS THAT PETITIONER MIGHT HAVE BEEN ABLE TO EXPLAIN AWAY
ON SOME INNOCENT BASIS UNRELATED TO COMMUNISM.  IF AN ANSWER TO A
QUESTION MAY TEND TO BE INCRIMINATORY, A WITNESS IS NOT DEPRIVED OF THE
PROTECTION OF THE PRIVILEGE MERELY BECAUSE THE WITNESS IF SUBSEQUENTLY
PROSECUTED COULD PERHAPS REFUTE ANY INFERENCE OF GUILT ARISING FROM THE
ANSWER.  (FN24)                                            II. 

THERE IS HERE, AS IN THE QUINN CASE, A SECOND GROUND FOR OUR
DECISION.  AT NO TIME DID THE COMMITTEE SPECIFICALLY OVERRULE
PETITIONER'S OBJECTION BASED ON THE FIFTH AMENDMENT, NOR DID THE
COMMITTEE INDICATE ITS OVERRULING OF THE OBJECTION BY SPECIFICALLY
DIRECTING PETITIONER TO ANSWER.  IN THE ABSENCE OF SUCH COMMITTEE
ACTION, PETITIONER WAS NEVER CONFRONTED WITH A CLEAR-CUT CHOICE BETWEEN
COMPLIANCE AND NONCOMPLIANCE, BETWEEN ANSWERING THE QUESTION AND
RISKING PROSECUTION FOR CONTEMPT.  FOR THE REASONS SET OUT IN THE QUINN
OPINION, WE BELIEVE THE COMMITTEE - BY FAILING TO MEET THESE MINIMAL
PROCEDURAL STANDARDS, ORIGINALLY RECOGNIZED BY THE COMMITTEE AND
RECENTLY RE-ADOPTED - DID NOT ADEQUATELY APPRISE PETITIONER THAT AN
ANSWER WAS REQUIRED NOTWITHSTANDING HIS OBJECTIONS.  AND WITHOUT SUCH
APPRISAL, THERE IS LACKING THE ELEMENT OF DELIBERATENESS NECESSARY FOR
A CONVICTION UNDER SEC. 192 FOR A REFUSAL TO ANSWER. 

          III. 

OUR DISPOSITION OF THE CASE MAKES IT UNNECESSARY TO PASS ON
PETITIONER'S OTHER CONTENTIONS AS TO THE FIRST AMENDMENT AND THE GRAND
JURY.  THE JUDGMENT BELOW IS REVERSED AND THE CASE REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO ENTER A JUDGMENT OF ACQUITTAL. 
REVERSED. 

FN1  SECTION 192 PROVIDES: 

"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 JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, 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 JAIL FOR NOT LESS THAN ONE MONTH NOR
MORE THAN TWELVE MONTHS." 

FN2  HEARINGS BEFORE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES
REGARDING COMMUNIST INFILTRATION OF LABOR UNIONS, 81ST CONG., 1ST
SESS., PART I, 541-542. 

FN3  AT THE VERY OUTSET OF THIS LINE OF QUESTIONING, THE FOLLOWING
COLLOQUY TOOK PLACE: 

"MR. MOULDER.  ARE YOU GOING TO ANSWER THE QUESTION? 

"MR. EMSPAK.  BECAUSE OF THE HYSTERIA, I THINK IT IS MY DUTY TO
ENDEAVOR TO PROTECT THE RIGHTS GUARANTEED UNDER THE CONSTITUTION,
PRIMARILY THE FIRST AMENDMENT, SUPPLEMENTED BY THE FIFTH.  THIS
COMMITTEE WILL CORRUPT THOSE RIGHTS."  HEARINGS, SUPRA, NOTE 2, PART
II, AT 839. 

FN4  PETITIONER'S MOTIONS TO DISMISS THE INDICTMENT WERE DENIED. 
UNITED STATES V. EMSPAK, 95 F. SUPP. 1010, 1012. 

FN5  UNITED STATES V. EMSPAK, UNREPORTED, CRIMINAL NO. 1742-50
(D.D.C.).  IN A COMPANION CASE UNDER SEC. 192, UNITED STATES V. MATLES,
UNREPORTED, CRIMINAL NO. 1745-50 (D.D.C.), THE SAME DISTRICT JUDGE
DIRECTED AN ACQUITTAL OF JAMES J. MATLES, A UE OFFICIAL WHO TESTIFIED
BEFORE THE COMMITTEE ON THE SAME DAY AS EMSPAK AND WHO SIMILARLY RELIED
ON "THE FIRST AND FIFTH AMENDMENTS."  HEARINGS, SUPRA, NOTE 2, PART II,
AT 856.  THE COURT HELD THAT MATLES' PLEA WAS SUFFICIENT TO INVOKE THE
SELF-INCRIMINATION CLAUSE BECAUSE IT APPEARED THAT REP. MOULDER SO
UNDERSTOOD IT. 

FN6  91 U.S. APP. D.C. 378, 203 F.2D 54. 

FN7  346 U.S. 809.  AFTER ARGUMENT, THE CASE WAS RESTORED TO THE
DOCKET FOR REARGUMENT.  347 U.S. 1006. 

FN8  BRIEF FOR UNITED STATES, P. 33, IN QUINN V. UNITED STATES, ANTE,
P. 155. 

FN9  PETITIONER'S GENERAL SENTENCE ON ALL 68 COUNTS WAS LESS THAN THE
MAXIMUM PERMISSIBLE ON ANY COUNT.  SEE SINCLAIR V. UNITED STATES, 279
U.S. 263, 299. 

FN10  HEARINGS, SUPRA, NOTE 2, PART II, AT 840. 

FN11  ID., AT 841. 

FN12  UNITED STATES V. DAISART SPORTSWEAR, INC., 169 F.2D 856, 862
863 (C.A.2D CIR.). 

FN13  SEE ALSO UNITED STATES V. ST. PIERRE, 128 F.2D 979, 980 (C.A.2D
CIR.), FROM WHICH THIS COURT'S SMITH OPINION APPROVINGLY QUOTES THE
FOLLOWING:  "NOR IS IT MATERIAL THAT APPELLANT STATED AT SEVERAL POINTS
THAT HE HAD COMMITTED NO FEDERAL CRIME; SUCH A CONTRADICTION,
ESPECIALLY BY A NERVOUS OR EXCITABLE WITNESS WOULD NOT OVERCOME A CLEAR
CLAIM OF PRIVILEGE IF HE WAS OTHERWISE ENTITLED TO THE PRIVILEGE." 

CF. UNITED STATES V. WEISMAN, 111 F.2D 260, 261 (C.A.2D CIR.). 

FN14  SEE HOFFMAN V. UNITED STATES, 341 U.S. 479, 486; UNITED STATES
V. BURR, 25 FED.  CAS. 38, AT 40, NO. 14,692E. 

FN15  BLAU V. UNITED STATES, 340 U.S. 159, 161. 

FN16  SEE HOFFMAN V. UNITED STATES, 341 U.S. 479, AT 486-487; UNITED
STATES V. BURR, 25 FED. CAS. 38, AT 40-41, NO. 14,692E.  AND SEE NOTE
18, INFRA. 

FN17  JOHNSON V. ZERBST, 304 U.S. 458, 464.  SEE ALSO, E.G., GLASSER
V. UNITED STATES, 315 U.S. 60, 70, AND SMITH V. UNITED STATES, 337 U.S.
137, 150. 

FN18  HOFFMAN V. UNITED STATES, 341 U.S. 479, 486-487.  COMPARE THE
TEST LAID DOWN IN ARNDSTEIN V. MCCARTHY, 254 U.S. 71, 72:  "IT IS
IMPOSSIBLE TO SAY FROM MERE CONSIDERATION OF THE QUESTIONS PROPOUNDED,
IN THE LIGHT OF THE CIRCUMSTANCES DISCLOSED, THAT THEY COULD HAVE BEEN
ANSWERED WITH ENTIRE IMPUNITY."  AND SEE UNITED STATES V. COFFEY, 198
F.2D 438, 440 (C.A. 3D CIR.):  "IT IS ENOUGH (1) THAT THE TRIAL COURT
BE SHOWN BY ARGUMENT HOW CONCEIVABLY A PROSECUTOR, BUILDING ON THE
SEEMINGLY HARMLESS ANSWER, MIGHT PROCEED STEP BY STEP TO LINK THE
WITNESS WITH SOME CRIME AGAINST THE UNITED STATES, AND (2) THAT THIS
SUGGESTED COURSE AND SCHEME OF LINKAGE NOT SEEM INCREDIBLE IN THE
CIRCUMSTANCES OF THE PARTICULAR CASE.  IT IS IN THIS LATTER CONNECTION,
THE CREDIBILITY OF THE SUGGESTED CONNECTING CHAIN, THAT THE REPUTATION
AND KNOWN HISTORY OF THE WITNESS MAY BE SIGNIFICANT. 

"FINALLY, IN DETERMINING WHETHER THE WITNESS REALLY APPREHENDS DANGER
IN ANSWERING A QUESTION, THE JUDGE CANNOT PERMIT HIMSELF TO BE
SKEPTICAL; RATHER MUST HE BE ACUTELY AWARE THAT IN THE DEVIOUSNESS OF
CRIME AND ITS DETECTION INCRIMINATION MAY BE APPROACHED AND ACHIEVED BY
OBSCURE AND UNLIKELY LINES OF INQUIRY." 

FN19  UNITED STATES V. BURR, 25 FED. CAS. 38, AT 40, NO. 14,692E. 

FN20  BLAU V. UNITED STATES, 340 U.S. 159.  SEE ALSO BRUNNER V.
UNITED STATES, 343 U.S. 918, REVERSING 190 F.2D 167 (C.A. 9TH CIR.). 

FN21  IN UNITED STATES V. SINGLETON, 193 F.2D 464 (C.A. 3D CIR.), THE
DEFENDANT WAS CONVICTED OF CONTEMPT FOR REFUSING TO ANSWER THE QUESTION
"WHAT BUSINESS IS HE IN?" WITH RESPECT TO THREE NAMED INDIVIDUALS. 
THIS COURT SUMMARILY REVERSED, 343 U.S. 944, CITING HOFFMAN V. UNITED
STATES, 341 U.S. 479, AND GREENBERG V. UNITED STATES, 343 U.S. 918. 
THE HOFFMAN DECISION, IN REVERSING 185 F.2D 617 (C.A. 3D CIR.), UPHELD
AN ASSERTION OF THE PRIVILEGE IN RESPONSE TO QUESTIONS CONCERNING THE
WHEREABOUTS OF AN ACQUAINTANCE OF THE DEFENDANT.  THE GREENBERG
DECISION, IN REVERSING 192 F.2D 201 (C.A. 3D CIR.), UPHELD AN ASSERTION
OF THE PRIVILEGE IN RESPONSE TO A QUESTION, AMONG OTHERS, ASKING THE
DEFENDANT TO IDENTIFY CERTAIN "MEN WHO ARE IN THE NUMBERS BUSINESS." 
SEE NOTE 24, INFRA. 

FN22  18 U.S.C. SEC. 2385; 18 U.S.C. SEC. 371. 

FN23  29 U.S.C. SEC. 159(H); 18 U.S.C. SEC. 1001. 

FN24  AT THE PRESENT TIME THE COURTS OF APPEALS ARE APPARENTLY
UNIFORM IN HOLDING THAT THE PRIVILEGE MAY EXTEND TO QUESTIONS OF THE
SORT INVOLVED HERE.  SEE, E.G., JUDGE LEARNED HAND IN UNITED STATES V.
WEISMAN, 111 F.2D 260, 261 (C.A.2D CIR.), UPHOLDING PRIVILEGE IN
RESPONSE TO QUESTION OF WHETHER THE WITNESS KNEW ANYONE WHO VISITED,
LIVED IN, OR STAYED AT, SHANGHAI IN THE YEARS 1934 TO 1939; JUDGE
AUGUSTUS HAND IN UNITED STATES V. ZWILLMAN, 108 F.2D 802 (C.A.2D CIR.),
UPHOLDING PRIVILEGE IN RESPONSE TO QUESTION OF WHO THE WITNESS'
BUSINESS ASSOCIATES WERE IN THE YEARS 1928 TO 1932; CHIEF JUDGE DENMAN
IN KASINOWITZ V. UNITED STATES, 181 F.2D 632 (C.A. 9TH CIR.), UPHOLDING
PRIVILEGE IN RESPONSE TO QUESTIONS OF WHETHER THE WITNESS KNEW DOROTHY
HEALY AND WHETHER THE WITNESS KNEW DOROTHY HEALY'S OCCUPATION; CHIEF
JUDGE MAGRUDER IN MAFFIE V. UNITED STATES, 209 F.2D 225, 231 (C.A. 1ST
CIR.), UPHOLDING PRIVILEGE IN RESPONSE TO QUESTION, AMONG OTHERS,
WHETHER WITNESS KNEW "SPECS" O'KEEFE AND STANLEY GUSCIORA; JUDGE HOLMES
IN ESTES V. POTTER, 183 F.2D 865 (C.A.  5TH CIR.), UPHOLDING PRIVILEGE
IN RESPONSE TO QUESTION WHETHER THE WITNESS PERSONALLY KNEW A CERTAIN
ALIEN; JUDGE RIVES IN MARCELLO V. UNITED STATES, 196 F.2D 437, 442
(C.A. 5TH CIR.), UPHOLDING PRIVILEGE IN RESPONSE TO QUESTION "DO YOU
KNOW SALVATORE VITTALI?"; JUDGE MARTIN IN AIUPPA V. UNITED STATES, 201
F.2D 287 (C.A. 6TH CIR.), UPHOLDING PRIVILEGE IN RESPONSE TO QUESTIONS
WHETHER THE WITNESS KNEW R.L. O'DONNELL AND ANTHONY ACCARDO; JUDGE
MARIS IN IN RE NEFF, 206 F.2D 149 (C.A. 3D CIR.), UPHOLDING PRIVILEGE
IN RESPONSE TO QUESTIONS WHETHER THE WITNESS KNEW JULIUS ZINMAN AND LOU
MALINOW.  SEE ALSO ALEXANDER V. UNITED STATES, 181 F.2D 480 (C.A. 9TH
CIR.); DORAN V. UNITED STATES, 181 F.2D 489 (C.A. 9TH CIR.); HEALEY V.
UNITED STATES, 186 F.2D 164 (C.A. 9TH CIR.); PORETTO V. UNITED STATES,
196 F.2D 392, 396 (C.A. 5TH CIR.); UNITED STATES V. GIRGENTI, 197 F.2D
218 (C.A. 3D CIR.); UNITED STATES V. COFFEY, 198 F.2D 438 (C.A. 3D
CIR.); DALY V. UNITED STATES, 209 F.2D 232, 233 (C.A. 1ST CIR.).  CF.
KIEWEL V. UNITED STATES, 204 F.2D 1 (C.A. 8TH CIR.); UNITED STATES V.
DOTO, 205 F.2D 416 (C.A.2D CIR.). 

(FOR DISSENTING OPINION OF MR. JUSTICE REED, JOINED BY MR. JUSTICE
MINTON, INSOFAR AS IT APPLIES TO THIS CASE, SEE ANTE, P. 171.) 

MR. JUSTICE HARLAN, DISSENTING. 

A VALID CLAIM OF PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE FIFTH
AMENDMENT HAS TWO REQUISITES:  (1) THE PRIVILEGE MUST BE ADEQUATELY
INVOKED, AND (2) A POSSIBLE ANSWER TO THE QUESTION AGAINST WHICH THE
PRIVILEGE IS ASSERTED MUST HAVE SOME TENDENCY TO INCRIMINATE THE PERSON
TO WHOM THE QUESTION IS ADDRESSED.  ALTHOUGH EMSPAK'S INVOCATION OF THE
PRIVILEGE LEFT MUCH TO BE DESIRED, I AGREE WITH THE MAJORITY'S VIEW
THAT IT WAS ADEQUATE, AND THAT EMSPAK AT NO TIME ABANDONED HIS CLAIM. 
BUT I MUST DISSENT FROM THE COURT'S HOLDING THAT ALL OF THE QUESTIONS
INVOLVED IN THE INDICTMENT CALLED FOR POSSIBLY INCRIMINATORY ANSWERS. 

THE COURT ALSO HOLDS, AS AN ALTERNATIVE GROUND FOR REVERSING EMSPAK'S
CONVICTION FOR CONTEMPT OF THE HOUSE SUBCOMMITTEE, THAT EMSPAK WAS NOT
SUFFICIENTLY APPRISED OF THE FACT THAT THE SUBCOMMITTEE,
NOTWITHSTANDING THE CLAIM OF PRIVILEGE, WAS INSISTING UPON ANSWERS TO
THE QUESTIONS PUT TO HIM.  FROM THIS HOLDING I MUST ALSO DISSENT. 

MY DISAGREEMENT WITH THE COURT ON BOTH SCORES GOES TO THE FIRST 58
COUNTS OF THE INDICTMENT.  (FN1)  AS THE COURT'S OPINION RECOGNIZES,
THE UPHOLDING OF EMSPAK'S CONVICTION ON ANY ONE COUNT OF THE INDICTMENT
WOULD REQUIRE AFFIRMANCE OF THE JUDGMENT BELOW, BECAUSE THE GENERAL
SENTENCE IMPOSED ON ALL COUNTS WAS LESS THAN THE MAXIMUM ALLOWABLE ON
ANY SINGLE COUNT.  SEE SINCLAIR V. UNITED STATES, 279 U.S. 263, 299
(1929). 

                                       I.

                     AS TO THE INCRIMINATORY CHARACTER OF THE

                                  58 QUESTIONS. 

IT IS QUITE TRUE, AS THE MAJORITY OBSERVES, THAT THIS ISSUE WAS NOT
DEALT WITH BY EITHER OF THE COURTS BELOW.  THE DISTRICT COURT AND THE
COURT OF APPEALS DID NOT HAVE TO REACH THE PROBLEM BECAUSE OF THEIR
CONCLUSION THAT EMSPAK'S CLAIM OF PRIVILEGE WAS INADEQUATE.  AND FOR
SOME REASON THE GOVERNMENT HAS NOT PRESSED THE POINT.  THIS, HOWEVER,
DOES NOT FORECLOSE THIS COURT FROM CONSIDERING IT.  SEE SWIFT & CO. V.
HOCKING VALLEY R. CO., 243 U.S. 281, 289 (1917).  AND PERHAPS IT IS DUE
THAT I SHOULD EXPLAIN WHY I THINK WE SHOULD DEAL WITH IT.  MY REASON IS
TWOFOLD:  FIRST, BECAUSE TO HOLD, AS THE COURT DOES, THAT THE QUESTIONS
INVOLVED IN COUNTS 1 TO 58 OF THE INDICTMENT WERE OF AN INCRIMINATORY
CHARACTER SEEMS TO ME TO VERGE ON AN ABANDONMENT OF THE RULE THAT A
VALID CLAIM OF PRIVILEGE EXISTS ONLY AS TO INCRIMINATORY QUESTIONS; AND
SECOND, BECAUSE THE MORE RECENT DECISIONS OF THIS COURT APPEAR TO ME TO
LEAVE THE STANDARD FOR DETERMINING WHETHER A QUESTION IS INCRIMINATORY
IN GREAT CONFUSION.  FOR EXAMPLE, THE COURT OF APPEALS FOR THE THIRD
CIRCUIT HAD OCCASION NOT SO LONG AGO TO MANIFEST ITS BEWILDERMENT AS TO
WHERE THIS ASPECT OF THE PRIVILEGE AGAINST SELF-INCRIMINATION NOW
STANDS IN LIGHT OF RECENT DECISIONS OF THIS COURT.  SEE UNITED STATES
V. COFFEY, 198 F.2D 438 (1952).  IN SHORT, I THINK THE STANDARD FOR
JUDGING THE CHARACTER OF A QUESTION AGAINST WHICH THE FIFTH AMENDMENT
PRIVILEGE IS ASSERTED NEEDS BOTH REHABILITATION AND RESTATEMENT. 

(1)  THE STANDARD. 

THE CONCEPT OF AN INCRIMINATING ANSWER INCLUDES NOT ONLY THOSE
ANSWERS WHICH CONSTITUTE AN ADMISSION OF GUILT, BUT ALSO THOSE WHICH
MAY FURNISH EVIDENCE OF GUILT OR MERELY SUPPLY A LEAD TO OBTAINING SUCH
EVIDENCE.  COUNSELMAN V. HITCHCOCK, 142 U.S. 547 (1892). 

THE ANSWER TO ALMOST ANY QUESTION A WITNESS IS ASKED COULD BE
REGARDED AS BEING USEFUL AS EVIDENCE, OR AS FURNISHING A LEAD TO
EVIDENCE, IN SUPPORT OF SOME CONCEIVABLE CRIMINAL CHARGE AGAINST THE
PERSON TO WHOM THE QUESTION IS ADDRESSED.  BUT UNLIKE A DEFENDANT IN A
CRIMINAL CASE, A WITNESS IN A GRAND JURY OR OTHER JUDICIAL OR
LEGISLATIVE PROCEEDING HAS NEVER BEEN ALLOWED, BY CLAIMING HIS
PRIVILEGE, TO REFUSE TO ANSWER ANY QUESTIONS AT ALL.  THAT WOULD
COMPLETELY SUBORDINATE THE PUBLIC INTEREST IN THE CONDUCT OF SUCH
PROCEEDINGS.  ACCORDINGLY, LEST CLAIMS OF THE FIFTH AMENDMENT PRIVILEGE
BE USED AS A COVER FOR A PERSON REFUSING TO PERFORM HIS DUTY TO CO
OPERATE IN SUCH PROCEEDINGS, REASONABLE BOUNDS HAVE BEEN PUT UPON THE
EXERCISE OF THE PRIVILEGE.  THOSE BOUNDS WERE STATED AS LONG AGO AS
1861 BY THE ENGLISH COURT OF QUEEN'S BENCH IN THE QUEEN V. BOYES, 1
B.&S. 311, 330-331, IN LANGUAGE WHICH THIS COURT HAS ADOPTED AS THE
BASIS FOR THE RULE IN THIS COUNTRY.  SEE BROWN V. WALKER, 161 U.S. 591,
599-600 (1896); MASON V. UNITED STATES, 244 U.S. 362, 365-366 (1917). 
IN THE BOYES CASE, COCKBURN, C.J., SAID:    "FURTHER THAN THIS, WE ARE
OF OPINION THAT THE DANGER TO BE APPREHENDED MUST BE REAL AND
APPRECIABLE, WITH REFERENCE TO THE ORDINARY OPERATION OF LAW IN THE
ORDINARY COURSE OF THINGS - NOT A DANGER OF AN IMAGINARY AND
UNSUBSTANTIAL CHARACTER, HAVING REFERENCE TO SOME EXTRAORDINARY AND
BARELY POSSIBLE CONTINGENCY, SO IMPROBABLE THAT NO REASONABLE MAN WOULD
SUFFER IT TO INFLUENCE HIS CONDUCT.  WE THINK THAT A MERELY REMOTE AND
NAKED POSSIBILITY, OUT OF THE ORDINARY COURSE OF THE LAW AND SUCH AS NO
REASONABLE MAN WOULD BE AFFECTED BY, SHOULD NOT BE SUFFERED TO OBSTRUCT
THE ADMINISTRATION OF JUSTICE.  THE OBJECT OF THE LAW IS TO AFFORD TO A
PARTY, CALLED UPON TO GIVE EVIDENCE IN A PROCEEDING INTER ALIOS,
PROTECTION AGAINST BEING BROUGHT BY MEANS OF HIS OWN EVIDENCE WITHIN
THE PENALTIES OF THE LAW.  BUT IT WOULD BE TO CONVERT A SALUTARY
PROTECTION INTO A MEANS OF ABUSE IF IT WERE TO BE HELD THAT A MERE
IMAGINARY POSSIBILITY OF DANGER, HOWEVER REMOTE AND IMPROBABLE, WAS
SUFFICIENT TO JUSTIFY THE WITHHOLDING OF EVIDENCE ESSENTIAL TO THE ENDS
OF JUSTICE." 

THROUGHOUT THE COURSE OF ITS DECISIONS THIS COURT HAS CONSISTENTLY
STATED THAT THE "REAL DANGER V. IMAGINARY POSSIBILITY" TEST IS THE
PROPER STANDARD TO BE APPLIED IN DECIDING WHETHER PARTICULAR QUESTIONS
ARE SUBJECT TO A VALID FIFTH AMENDMENT CLAIM.  SEE BROWN V. WALKER,
SUPRA; HEIKE V. UNITED STATES, 227 U.S. 131, 144 (1913); MASON V.
UNITED STATES, SUPRA; ROGERS V. UNITED STATES, 340 U.S. 367 (1951);
BLAU V. UNITED STATES, 340 U.S. 159, 161 (1950); HOFFMAN V. UNITED
STATES, 341 U.S. 479, 486 (1951).  BUT IN RECENT PER CURIAM REVERSALS
OF CONTEMPT CONVICTIONS THIS COURT SEEMS TO HAVE INDICATED A TENDENCY
TO STRAY FROM THE APPLICATION OF THIS TRADITIONAL STANDARD.  (FN2)  AND
I SHALL PRESENTLY SHOW THAT IT HAS DEPARTED FROM THAT STANDARD IN THIS
CASE. 

(2)  APPLICATION OF THE STANDARD TO QUESTIONS INNOCENT ON THEIR
FACE. 

THE NEXT QUESTION REQUIRING CONSIDERATION IS:  HOW SHOULD THIS
STANDARD BE APPLIED IN A CASE WHERE THE QUESTIONS APPEAR ON THEIR FACE
TO CALL ONLY FOR INNOCENT ANSWERS?  IN UNITED STATES V. WEISMAN, 111
F.2D 260 (1940), THE COURT OF APPEALS FOR THE SECOND CIRCUIT HAD BEFORE
IT A CLAIM OF THE FIFTH AMENDMENT PRIVILEGE TO A QUESTION IN
SUBSTANTIALLY THE FOLLOWING FORM:  "DID YOU KNOW ANYONE WHO VISITED OR
LIVED IN SHANGHAI BETWEEN 1934 AND 1939?"  ON THE SURFACE OF THINGS -
HAD NOTHING MORE APPEARED - THE POSSIBLE ANSWERS TO THIS QUESTION -
"YES," "NO" OR "I DON'T KNOW" - WOULD ALL APPEAR INNOCENT.  A SITUATION
COULD BE IMAGINED IN WHICH ONE OF THESE ANSWERS WOULD HAVE TENDED TO
INCRIMINATE, BUT THIS POSSIBILITY BY ITSELF WOULD NOT BE ENOUGH TO
JUSTIFY THE CLAIM OF PRIVILEGE.  ADDITIONAL FACTS APPEARED, HOWEVER,
WHICH SHOWED THE QUESTION TO BE PART OF AN INCRIMINATORY PATTERN:  THE
WITNESS WAS A NEW YORK NIGHT CLUB PROPRIETOR, UNLIKELY TO BE ACQUAINTED
WITH SHANGHAI RESIDENTS OR VISITORS, AND HE HAD ENGAGED IN TRANSACTIONS
LOOKING SUSPICIOUSLY LIKE IMPORTATIONS OF NARCOTICS FROM CHINA. 
BECAUSE OF THESE AND OTHER FACTS, A REAL DANGER OF INCRIMINATION FROM
ANSWERING THE QUESTION WAS HELD TO EXIST BY THE COURT, THROUGH JUDGE
LEARNED HAND.  IT MAY BE ARGUED THAT THE ADMISSION SOUGHT WAS NOT
SUFFICIENTLY IMPLICATING TO JUSTIFY THE INVOCATION OF THE PRIVILEGE,
SEE WIGMORE, EVIDENCE, SECS.  2260-2261; BUT FOR PRESENT PURPOSES WE
MAY ASSUME THAT THE RESULT IS A CORRECT ONE. 

OF COURSE, IN SOME CASES THE BACKGROUND FACTS MAKING AN APPARENTLY
INNOCENT QUESTION DANGEROUS MAY NOT BE KNOWN TO THE COURT.  THEN THE
CHOICE MUST BE MADE BETWEEN REQUIRING THE COURT TO ACCEPT THE WITNESS'
WORD THAT FACTS EXIST WHICH WOULD MAKE HIS ANSWER INCRIMINATING, AND
REQUIRING THE WITNESS TO EXPLAIN THE CIRCUMSTANCES WHICH JUSTIFY HIS
CLAIM OF PRIVILEGE.  TO BE SURE, THE SECOND ALTERNATIVE INVOLVES THE
DANGER THAT THE WITNESS WILL HAVE TO REVEAL SOME INCRIMINATORY EVIDENCE
IN ORDER TO SHOW WHY HE SHOULD NOT BE REQUIRED TO ANSWER. 
NEVERTHELESS, TRADITIONALLY THE WITNESS HAS NOT BEEN ALLOWED TO BE SOLE
JUDGE OF THE CHARACTER OF THE QUESTIONS OBJECTED TO; HE IS REQUIRED TO
OPEN THE DOOR WIDE ENOUGH FOR THE COURT TO SEE THAT THERE IS SUBSTANCE
TO HIS CLAIM.  UNITED STATES V. WEISMAN, SUPRA.  IF THE BACKGROUND
FACTS ARE KNOWN OR SUSPECTED TO EXIST, THIS PROBLEM DISAPPEARS, FOR ALL
THE WITNESS HAS TO DO IS POINT TO SUCH FACTS OR SUSPICIONS. 

(3)  APPLICATION OF THE STANDARD TO DANGEROUS QUESTIONS. 

IT SEEMS TO ME THAT THE "REAL DANGER V. IMAGINARY POSSIBILITY"
STANDARD OUGHT TO BE APPLIED IN THE SAME FASHION TO DANGEROUS
QUESTIONS.  SUCH QUESTIONS INCLUDE THOSE WHICH CALL FOR AN ADMISSION OF
A CRIME OR A NECESSARY ELEMENT OF A CRIME, OR A FACT WHICH, WHILE
INNOCENT ON ITS FACE, IS DANGEROUS IN THE LIGHT OF OTHER FACTS ALREADY
DEVELOPED. 

IN ALL SUCH CASES OTHER FACTS MAY APPEAR WHICH SERVE TO CAST AN
INNOCENT ASPECT UPON THE QUESTION.   SUPPOSE TWO MEN ARE SUSPECTED OF
HAVING CONSPIRED TO STEAL CASH FROM A BANK ONE DAY DURING BUSINESS
HOURS.  EACH IS ASKED WHETHER HE SAW THE OTHER ON THE DAY OF THE THEFT,
AND EACH PLEADS HIS PRIVILEGE.  BUT FACTS ALREADY DEVELOPED IN THE
INVESTIGATION SHOW THAT BOTH MEN ARE TELLERS IN THIS BANK AND HAVE
WORKED IN THE SAME CAGE FOR TEN YEARS.  CERTAINLY, IN THESE
CIRCUMSTANCES, THE FACT OF EACH HAVING SEEN THE OTHER CANNOT RATIONALLY
BE SAID TO HAVE ANY TENDENCY TO ESTABLISH THEIR GUILT, OR, IN ANY
REALISTIC SENSE, TO AID THE PROSECUTION IN DISCOVERING EVIDENCE AGAINST
THEM, SINCE THE PROSECUTION ALREADY WOULD BE EXPECTED TO HAVE
INDEPENDENT EVIDENCE OF THEIR PRESENCE IN THE BANK ON THAT DAY.  IN
OTHER WORDS, IF BACKGROUND FACTS CAN MAKE AN INNOCENT QUESTION
DANGEROUS, THEY CAN ALSO MAKE A DANGEROUS QUESTION INNOCENT.  AND IN
DECIDING WHETHER THE PRIVILEGE IS AVAILABLE, WE MUST TAKE INTO ACCOUNT
ALL THE FACTS - NOT JUST THOSE TENDING TO MAKE THE QUESTION DANGEROUS. 

I DO NOT SUGGEST THAT IN A TRIAL FOR CONTEMPT A FIFTH AMENDMENT
DEFENSE SHOULD BE SET AT NAUGHT WHENEVER THE PROSECUTION IS ABLE TO
OFFER AN EXCULPATORY EXPLANATION FOR AN OTHERWISE INCRIMINATING
ANSWER.  WHAT I DO SUBMIT IS THAT THE PRIVILEGE SHOULD NOT BE AVAILABLE
WHEN THE FACTS HAVE BEEN SUFFICIENTLY DEVELOPED AT THE TIME THE CLAIM
OF PRIVILEGE IS MADE SO THAT IT IS PLAIN THAT NO POSSIBLE ANSWER TO THE
QUESTION PUT TO THE WITNESS COULD RATIONALLY TEND TO PROVE HIS GUILT OR
SUPPLY THE PROSECUTION WITH LEADS TO EVIDENCE AGAINST HIM.  IN SUCH
CIRCUMSTANCES THERE IS NO REAL DANGER OF HARM TO THE WITNESS TO BE
APPREHENDED FROM HIS ANSWERING THE QUESTION. 

(4)  APPLICATION OF THE STANDARD TO THIS CASE. 

I COME FINALLY TO THE ISSUE AS TO HOW THE "REAL DANGER V. IMAGINARY
POSSIBILITY" STANDARD SHOULD BE APPLIED TO THE QUESTIONS INVOLVED IN
THE FIRST 58 COUNTS OF THE INDICTMENT.  (FN3)  TYPICAL OF THESE
QUESTIONS WERE THE FOLLOWING:  "ARE YOU ACQUAINTED WITH JOSEPH
PERSILY?"; "IS MAX HELFORD AT THE PRESENT TIME A FIELD ORGANIZER FOR
THE UE?" 

ON THEIR FACE, AND WITHOUT MORE, THESE QUESTIONS WERE CERTAINLY
INNOCENT ENOUGH.  AND THEREFORE THE FIRST ISSUE CONFRONTING US IS
WHETHER OTHER EXISTING BACKGROUND FACTS AND CIRCUMSTANCES MADE THE
QUESTIONS INCRIMINATORY.  WE START FROM THESE PREMISES:  FROM THE
ANNOUNCED PURPOSES OF THE SUBCOMMITTEE AND THE PATTERN OF ITS
QUESTIONING OF WITNESSES, IT IS A FAIR INFERENCE THAT ONE OF THE
SUBCOMMITTEE'S OBJECTIVES WAS TO SHOW THAT COMMUNISTS HELD POSITIONS OF
RESPONSIBILITY IN THIS UNION.  THIS IN TURN MIGHT BE THE STARTING POINT
FOR PROSECUTIONS FOR FILING FALSE NONCOMMUNIST AFFIDAVITS UNDER THE
TAFT-HARTLEY ACT (FN4) OR FOR VIOLATIONS OF THE SMITH ACT.  (FN5)  THE
CONCLUSION ALSO SEEMS JUSTIFIED THAT MOST, IF NOT ALL, OF THE PERSONS
REFERRED TO IN THE 58 QUESTIONS PUT TO EMSPAK, AND EMSPAK HIMSELF, WERE
SUSPECTED OF BEING COMMUNISTS OR OF HAVING COMMUNIST AFFILIATIONS. 
INDEED, THE GOVERNMENT ON THE ORAL ARGUMENT CONCEDED AS MUCH.  HAD
EMSPAK ADMITTED KNOWING ANY OF THESE PEOPLE, THIS MIGHT TEND TO SHOW
ASSOCIATION WITH COMMUNISTS.  WHILE THE DECISIONS OF THIS COURT DO NOT
ESTABLISH THAT THESE FACTORS WOULD HAVE SUFFICED TO MAKE THOSE
QUESTIONS INCRIMINATORY, LOWER COURTS HAVE GONE FAR IN THIS DIRECTION. 
SEE KASINOWITZ V. UNITED STATES, 181 F.2D 632 (1950); UNITED STATES V.
RALEY, 96 F. SUPP. 495 (1951); SEE ALSO FALKNOR, SELF-CRIMINATION
PRIVILEGE:  "LINKS IN THE CHAIN," 5 VAND.  L. REV. 479, 485-489
(1952). 

BUT THERE WERE ALSO OTHER BACKGROUND FACTS AND CIRCUMSTANCES.  EMSPAK
HAD TOLD THE SUBCOMMITTEE THAT HE WAS SECRETARY OF THE UNION.  HE WAS
ASKED IF OTHER NAMED INDIVIDUALS HELD POSITIONS IN THE SAME UNION, AND
WITH RESPECT TO SOME OF THEM, WHETHER HE KNEW THEM PERSONALLY.  THESE
THINGS BEING SO, IT IS DIFFICULT TO SEE HOW THE FACT THAT EMSPAK KNEW
SOME OF THESE PEOPLE OR WHAT POSITION EACH HELD IN THE UNION CAN
RATIONALLY BE SAID TO SUPPORT EVEN AN INFERENCE THAT HE KNEW OF THEIR
ALLEGED COMMUNIST AFFILIATIONS, MUCH LESS TEND TO PROVE THAT HE HIMSELF
HAD TAKEN PART IN A CONSPIRACY TO ADVOCATE THE FORCIBLE OVERTHROW OF
THE GOVERNMENT OR HAD FALSELY SWORN THAT HE WAS NOT A COMMUNIST.  NOR
COULD THE ANSWERS TO THE QUESTIONS HAVE BEEN OF MATERIAL ASSISTANCE IN
PROVIDING LEADS TO EVIDENCE TO BE USED AGAINST HIM.  INVESTIGATORS
PRESUMABLY WOULD ALREADY KNOW THAT THE SECRETARY OF THE UNION KNEW
OTHER UNION OFFICIALS.  THUS, IN LIGHT OF EMSPAK'S ADMITTED POSITION,
THE QUESTIONS APPEAR PROPER. 

THIS CONCLUSION IS NOT AFFECTED BY THE ADDITIONAL POSSIBILITY THAT
EMSPAK'S ANSWERS MIGHT HAVE BEEN ADMISSIBLE AGAINST HIM IN A LATER
CRIMINAL TRIAL.  IF THE ANSWERS WERE ADMISSIBLE, THIS FACT SHOULD NOT
OF ITSELF MAKE THE QUESTIONS INCRIMINATORY, EVEN THOUGH THE ANSWERS
MIGHT HAVE BEEN UTILIZED BY THE PROSECUTOR TO SHOW EMSPAK'S
ACQUAINTANCE WITH THESE OTHER PERSONS AS A FIRST STEP IN PROVING
CONSPIRACY, AND THE PROSECUTOR WOULD THUS HAVE BEEN SPARED THE
NECESSITY OF PROVING THIS ACQUAINTANCE BY INDEPENDENT EVIDENCE.  BUT IN
FACT EMSPAK'S ANSWERS WOULD NOT HAVE BEEN ADMISSIBLE AGAINST HIM IN
SUCH A TRIAL.  FOR AT THE TIME EMSPAK TESTIFIED BEFORE THE
SUBCOMMITTEE, A FEDERAL STATUTE PREVENTED THE USE OF ANY OF HIS
TESTIMONY BEFORE THAT BODY AS EVIDENCE AGAINST HIM IN ANY LATER
CRIMINAL PROCEEDINGS, EXCEPT A PROSECUTION FOR PERJURY IN THE GIVING OF
THE TESTIMONY.  (FN6) THUS, TO THE EXTENT THAT THE INCRIMINATORY
CHARACTER OF THESE QUESTIONS DEPENDS SOLELY UPON THE ADMISSIBILITY OF
EMSPAK'S ANSWERS IN EVIDENCE AGAINST HIM IN A LATER CRIMINAL TRIAL,
THERE COULD HARDLY BE A VALID OBJECTION TO THEM ON THIS SCORE. 

IN THE LAST ANALYSIS, THE COURT'S HOLDING SEEMS TO REST ON THE
PREMISE THAT THE QUESTIONS PUT TO EMSPAK BECAME AUTOMATICALLY
INCRIMINATORY ONCE IT WAS SHOWN THAT HE AND THOSE ABOUT WHOM HE WAS
INTERROGATED WERE UNDER SUSPICION OF COMMUNISM.  THIS IS PAINTING WITH
TOO BROAD A BRUSH. 

IT IS TRUE THAT UNDER THE RULE AS IT EXISTS A WITNESS MAY SOMETIMES
HAVE TO WALK A TIGHTROPE BETWEEN WAIVER OF HIS PRIVILEGE, IF HE ANSWERS
A QUESTION LATER HELD TO BE INCRIMINATORY, AND CONTEMPT, IF HE REFUSES
TO ANSWER A QUESTION LATER HELD TO BE NONINCRIMINATORY.  AND IT MAY BE
THAT IN SOME CIRCUMSTANCES THE PRIVILEGE SHOULD BE HELD TO EXTEND TO
QUESTIONS WHICH ARE NOT IN THEMSELVES INCRIMINATORY, BUT WHICH SEEM
LIKELY TO LEAD TO OTHER QUESTIONS WHICH ARE.  BUT IN MY VIEW ANY SUCH
DOCTRINE SHOULD BE REGARDED AS AN EXCEPTION TO THE GENERAL RULE AND
SHOULD BE CONFINED TO CASES WHERE SPECIAL CIRCUMSTANCES EXIST WHICH
MAKE IT UNFAIR TO APPLY THE ORDINARY RULE, SUCH AS WHERE THE WITNESS IS
WITHOUT COUNSEL, IS IGNORANT OR CONFUSED, AND THE LIKE.  SOME OF THE
DECISIONS OF LOWER COURTS SEEM TO SUGGEST THAT IN PROCEEDINGS OBVIOUSLY
DESIGNED TO DEVELOP A CASE AGAINST A PARTICULAR WITNESS, THE WITNESS
MAY BE ALLOWED TO INVOKE THE PRIVILEGE AS TO ALL QUESTIONS, AS MAY A
DEFENDANT IN A CRIMINAL CASE.  SEE MARCELLO V. UNITED STATES, 196 F.2D
437 (1952); MAFFIE V. UNITED STATES, 209 F.2D 225 (1954).  I THINK,
HOWEVER, THAT SUCH A VIEW IS TOO SWEEPING, AND ALSO THAT WHERE THERE IS
ROOM FOR THE APPLICATION OF AN EXCEPTION TO THE ORDINARY RULE, IT
SHOULD BE DONE OPENLY, AND NOT UNDER THE GUISE OF HOLDING
NONINCRIMINATORY QUESTIONS INCRIMINATORY.  NO CIRCUMSTANCES ARE SHOWN
HERE WHICH WOULD CALL FOR THE APPLICATION OF ANY SUCH EXCEPTION. 
EMSPAK WAS REPRESENTED BY COUNSEL AND WAS OBVIOUSLY AN INTELLIGENT AND
SHREWD WITNESS.  THE INFERENCE MOST READILY DRAWN FROM THE RECORD IS
THAT EMSPAK DID NOT WANT TO "STOOL PIGEON" AGAINST HIS ASSOCIATES. 
WHILE SUCH A MOTIVE WOULD NOT, IN MY OPINION, VITIATE AN OTHERWISE
VALID CLAIM OF THE PRIVILEGE, IT CERTAINLY FURNISHES NO LEGAL EXCUSE
FOR REFUSING TO ANSWER NONINCRIMINATORY QUESTIONS. 

     II.

                 AS TO EMSPAK'S KNOWLEDGE THAT THE SUBCOMMITTEE

                         WANTED ITS QUESTIONS ANSWERED. 

THE MAJORITY HOLDS THAT WHENEVER A WITNESS OBJECTS TO A QUESTION
THERE IS NO VIOLATION OF 2 U.S.C. SEC. 192 UNTIL HE IS CLEARLY APPRISED
THAT THE COMMITTEE DEMANDS HIS ANSWER, NOTWITHSTANDING HIS OBJECTION. 
UNTIL THEN, SO THE COURT HOLDS, THE WITNESS HAS NOT EVIDENCED THE
REQUISITE CRIMINAL INTENT, THAT IS, A DELIBERATE REFUSAL TO ANSWER. 
THE COURT ELABORATES THIS THESIS IN THE QUINN CASE, ANTE, P. 155,
DECIDED TODAY, AND APPLIES IT IN THIS CASE AND IN THE BART CASE, POST,
P. 219, ALSO DECIDED TODAY.    I AM UNABLE TO ACCEPT THE COURT'S
HOLDING ON THIS SCORE, AND AGREE WITH MR. JUSTICE REED'S CRITICISM OF
IT IN HIS TWO DISSENTING OPINIONS IN THESE THREE CASES.  I CONSIDER IT
DESIRABLE, HOWEVER, TO ELABORATE SOMEWHAT UPON WHAT MR. JUSTICE REED
HAS SAID. 

SIMPLY RECOGNITION OF WHAT THE COMMITTEE IS AFTER AND FAILURE EITHER TO
SUPPLY IT OR TO EXPLAIN AN INABILITY TO SUPPLY IT.  IT ONLY CONFUSES
THE MATTER TO SAY THAT THE "REFUSAL" MUST BE "INTENTIONAL" OR
"DELIBERATE" OR THAT IT MUST MANIFEST A "CRIMINAL INTENT."  INDEED,
SINCLAIR V. UNITED STATES, 279 U.S. 263, 299 (1929), UPON WHICH THE
COURT RELIES, WAS LATER DISCUSSED IN UNITED STATES V. MURDOCK, 290 U.S.
389, 396, 397 (1933), AND THE COURT THERE POINTED OUT THAT SEC. 192
DOES NOT MAKE A BAD PURPOSE OR EVIL INTENT AN INGREDIENT OF THE CRIME
OF REFUSING TO ANSWER A QUESTION PERTINENT TO THE MATTER UNDER
INQUIRY. 

BEYOND THIS, I SEE NO REASON FOR THINKING THAT WHEN A WITNESS COUPLES
AN OBJECTION WITH A REFUSAL TO ANSWER, HIS REFUSAL BECOMES ANY THE LESS
"DELIBERATE" OR "INTENTIONAL."  THE COURT HOLDS THAT IF THE OBJECTION
WERE ACCEPTED BY THE COMMITTEE, THE REQUIREMENT OF "DELIBERATENESS"
WOULD NOT HAVE BEEN MET.  FOR MY PART, THE PROPER ANALYSIS OF SUCH A
SITUATION IS RATHER THAT THERE HAS BEEN A "REFUSAL TO ANSWER," AND THUS
AT LEAST A PRIMA FACIE VIOLATION OF THE STATUTE, BUT THE COMMITTEE HAS
CHOSEN NOT TO PRESS THE MATTER FURTHER.  WHAT THE COMMITTEE DOES AFTER
THE WITNESS MAKES HIS OBJECTION SHOULD NOT BE HELD TO HAVE ANY BEARING
ON THE QUESTION WHETHER THERE WAS A REFUSAL, OR ON THE QUESTION WHETHER
IT WAS "DELIBERATE," IF THAT CONNOTES ANYTHING MORE.  THOSE QUESTIONS
MUST BE DETERMINED AS OF THE TIME THE WITNESS SPEAKS. 

THUS I DO NOT SEE HOW THE COURT'S RESULT CAN BE HINGED TO ANY
LANGUAGE IN THE STATUTE.  PERHAPS A PRIVILEGE TO OBJECT COULD BE
DERIVED, HOWEVER, FROM WHAT MUST BE TAKEN TO BE THE STATUTE'S OVER-ALL
PURPOSE:  TO ENABLE COMMITTEES TO OBTAIN THE INFORMATION THEY WISH
WITHOUT AT THE SAME TIME TREATING WITNESSES UNFAIRLY.  THUS, A WITNESS
MIGHT BE HELD PRIVILEGED TO REFUSE TO ANSWER A QUESTION, FOR THE
PURPOSE OF PRESENTING, AT REASONABLE LENGTH, A COLORABLE OBJECTION TO
THE PROPRIETY OF THE QUESTION.  BUT THIS PRIVILEGE WOULD TERMINATE WHEN
IT BECAME REASONABLY APPARENT TO THE WITNESS THAT THE OBJECTION WAS NOT
ACCEPTABLE TO THE COMMITTEE.  THEN THE WITNESS WOULD HAVE TO CHOOSE
BETWEEN ANSWERING AND STANDING ON THE VALIDITY OF HIS OBJECTION. 

IF THIS IS THE STANDARD WHICH THE COURT'S CONSTRUCTION ESTABLISHES, I
WOULD QUARREL ONLY WITH ITS APPLICATION HERE.  BUT IN REQUIRING THAT A
WITNESS WHO OBJECTS BE "CLEARLY APPRISED" THAT HIS OBJECTION IS
UNSATISFACTORY AND THAT THE COMMITTEE WISHES HIS ANSWER, THE COURT MAY
HAVE MEANT TO GO FURTHER.  IF THAT IS SO, THEN I WOULD QUESTION THE
STANDARD ITSELF.  MOREOVER, I THINK THAT EVEN THIS MORE LENIENT
STANDARD WOULD HAVE BEEN MET IN THIS CASE.  FOR SURELY THE RECORD SHOWS
THAT EMSPAK WAS CLEARLY APPRISED THAT, DESPITE HIS OBJECTIONS, THE
COMMITTEE WANTED ANSWERS TO THE 58 QUESTIONS, SO THAT THERE IS A
VIOLATION OF THE STATUTE UNDER EITHER STANDARD.  AFTER EMSPAK HAD
ANSWERED A NUMBER OF PRELIMINARY QUESTIONS CONCERNING THE ORGANIZATION
OF HIS UNION, THE FOLLOWING DISCUSSION TOOK PLACE BETWEEN HIM,
CONGRESSMAN MOULDER, AND MR. TAVENNER, THE COMMITTEE COUNSEL: 

"MR. TAVENNER.  MR. EMSPAK, ARE YOU ACQUAINTED WITH JOSEPH PERSILY? 

"MR. EMSPAK.  MR. CHAIRMAN, I WOULD LIKE TO SAY SOMETHING AT THIS
POINT. 

"MR. MOULDER.  YOU MEAN IN RESPONSE TO THE QUESTION? 

"MR. EMSPAK.  I WILL ANSWER THE QUESTION; YES, IN RESPONSE TO THE
QUESTION AND AS A STATEMENT OF POSITION. 

"WHAT I SAY REVOLVES AROUND TWO POINTS, ONE ORGANIZATIONALLY AND
ANOTHER AS AN INDIVIDUAL.  ORGANIZATIONALLY, MY JOB AS AN OFFICER OF
THIS UNION IS TO REPRESENT THE INTEREST OF THE MEMBERSHIP AS THEY
DETERMINE IT AT THE ANNUAL CONVENTIONS AND AT OTHER MEANS THEY HAVE OF
GETTING TOGETHER AND EXPRESSING THEMSELVES.  MY JOB IS TO ADMINISTER
THAT ASPECT TO THE BEST OF MY ABILITY, USING ONE VERY SIMPLE MEASURING
STICK, AND THAT IS:  DOES A GIVEN POLICY OR ACTION CONTRIBUTE TO THE
WELL-BEING OF THE MEMBERSHIP, INDIVIDUALLY AND COLLECTIVELY? 

"AS AN INDIVIDUAL I WOULD LIKE TO SAY ONE THING, AND THAT IS THIS:
THE LINE OF QUESTIONING THAT COUNSEL IS DEVELOPING NOW IS A LINE THAT
HAS BEEN USED ON NUMEROUS OCCASIONS BY THIS COMMITTEE AND OTHER
CONGRESSIONAL COMMITTEES IN AN ATTEMPT TO HARASS THE UNION, ITS
LEADERSHIP, AND ITS MEMBERS.  IT IS A LINE OF QUESTIONING THAT GOES
AGAINST MY GRAIN AS AN AMERICAN.  I WAS BORN IN THIS COUNTRY. 
EVERYTHING I AM: 

"MR. MOULDER.  HOW LONG WILL THIS STATEMENT TAKE, MR. EMSPAK? 

"MR. EMSPAK.  ABOUT TWO OR THREE MORE MINUTES. 

"MR. MOULDER.  PROCEED. 

"MR. EMSPAK.  EVERYTHING I AM, I OWE TO THE RICH HERITAGE AND
TRADITION OF THIS COUNTRY.  I DO NOT BELIEVE THAT A COMMITTEE OF THIS
KIND, ESPECIALLY IN VIEW OF THE RECENT RECORD OF THIS COMMITTEE WHERE
IT STOOPED TO INTERFERE IN THE PARTISAN AFFAIRS OF A LOCAL UNION, OR
ANY CONGRESSIONAL COMMITTEE, BECAUSE OF THE RICH TRADITION OF THIS
COUNTRY WHICH, IF NOT PERVERTED, WILL LEAD TO A GREATER AND BETTER
COUNTRY - I DON'T THINK A COMMITTEE LIKE THIS OR ANY SUBCOMMITTEE HAS A
RIGHT TO GO INTO ANY QUESTION OF MY BELIEFS, MY ASSOCIATIONS, OR
ANYTHING ELSE.  I HAVE A COUPLE OF KIDS.  THEY HAVE A STAKE IN THIS
COUNTRY, TOO. 

"MR. MOULDER.  I WANT TO GIVE YOU FULL OPPORTUNITY TO EXPRESS
YOURSELF IN ANSWER TO THE QUESTION, BUT YOU ARE MAKING AN ORATION NOW. 

"MR. EMSPAK.  IT IS NOT AN ORATION.  IT HAPPENS TO BE A VERY PROFOUND
PERSONAL FEELING. 

"MR. MOULDER.  WHAT IS THE QUESTION? 

"MR. TAVENNER.  THE QUESTION IS:  ARE YOU ACQUAINTED WITH JOSEPH
PERSILY. 

"MR. MOULDER.  HOW DO YOU SPELL THAT? 

"MR. TAVENNER.  P-E-R-S-I-L-Y. 

"MR. EMSPAK.  BECAUSE I HAVE A STAKE IN THIS COUNTRY: 

"MR. MOULDER.  YOU ARE NOT ANSWERING THE QUESTION.  HE ASKED YOU IF
YOU ARE ACQUAINTED WITH THIS MAN. 

"MR. EMSPAK.  I WILL ANSWER IT. 

"MR. MOULDER.  ARE YOU OR NOT? 

"MR. EMSPAK.  I WAS ON THE VERGE OF ANSWERING IT. 

"MR. MOULDER.  IF YOU HAVE ANY EXPLANATION TO MAKE YOU WILL BE
PERMITTED TO DO SO AFTER YOU ANSWER THE QUESTION. 

"MR. EMSPAK.  BECAUSE OF MY INTEREST IN WHAT IS GOING ON THESE DAYS,
BECAUSE OF THE ACTIVITIES OF THIS COMMITTEE: 

"MR. MOULDER.  ARE YOU GOING TO ANSWER THE QUESTION? 

"MR. EMSPAK.  BECAUSE OF THE HYSTERIA, I THINK IT IS MY DUTY TO
ENDEAVOR TO PROTECT THE RIGHTS GUARANTEED UNDER THE CONSTITUTION,
PRIMARILY THE FIRST AMENDMENT, SUPPLEMENTED BY THE FIFTH.  THIS
COMMITTEE WILL CORRUPT THOSE RIGHTS. 

"MR. MOULDER.  DO YOU THINK IT CORRUPTS YOU TO ANSWER THE QUESTION? 

"MR. EMSPAK.  I CERTAINLY DO. 

"MR. MOULDER.  WHY DOES IT CORRUPT YOU? 

"MR. EMSPAK.  YOUR ACTIVITIES ARE DESIGNED TO HARM THE WORKING PEOPLE
OF THIS COUNTRY.  EVERY ACTION THIS COMMITTEE HAS EVER TAKEN HAS DONE
THAT.  YOU INTERFERED LAST SUMMER IN THE ELECTION OF A LOCAL UNION AT
THE REQUEST OF A PRIEST.  YOU KNOW THAT.  YOU DRAGGED DOWN THE PRESTIGE
OF THIS COUNTRY. 

"MR. MOULDER.  YOU ARE NOT GOING TO TAKE OVER THIS COMMITTEE. 

"MR. EMSPAK.  I DON'T WANT TO. 

"MR. MOULDER.  AND YOUR STATEMENTS ARE PREPOSTEROUS.  THE PURPOSE OF
THIS COMMITTEE IS TO EXPOSE COMMUNISM AS IT EXISTS IN THIS COUNTRY. 
WHAT IS THE QUESTION? 

"MR. TAVENNER.  ARE YOU ACQUAINTED WITH JOSEPH PERSILY? 

"MR. EMSPAK.  FOR THE REASONS I STATED BEFORE, I ANSWERED IT. 

"MR. MOULDER.  THEN YOU REFUSE TO ANSWER THE QUESTION? 

"MR. EMSPAK.  NO. I ANSWERED IT. 

"MR. TAVENNER.  ARE YOU OR ARE YOU NOT ACQUAINTED WITH JOSEPH
PERSILY? 

"MR. EMSPAK.  I ANSWERED THE QUESTION. 

"MR. TAVENNER.  YOUR REPLIES ARE A REFUSAL TO COMPLY WITH THE REQUEST
TO ANSWER IT? 

"(WITNESS CONFERS WITH HIS COUNSEL.) 

"MR. MOULDER.  THE RECORD WILL REVEAL THAT YOU HAVE NOT ANSWERED THE
QUESTION. 

"MR. EMSPAK.  I HAVE ANSWERED IT TO THE BEST OF MY ABILITY UNDER THE
CIRCUMSTANCES. 

"MR. MOULDER.  ANY FURTHER QUESTIONS? 

"MR. TAVENNER.  YES.  IN WHAT CAPACITY IS JOSEPH PERSILY ASSOCIATED
WITH THE UE AT THIS TIME? 

"MR. EMSPAK.  IT IS THE SAME QUESTION OVER AGAIN.  I WILL GIVE THE
SAME ANSWER. 

"MR. TAVENNER.  IS HE AN ORGANIZER IN THE UE? 

"MR. EMSPAK.  MR. CHAIRMAN, IT IS THE SAME QUESTION. 

"MR. TAVENNER.  YOU REFUSE TO ANSWER THAT? 

"MR. EMSPAK.  I ANSWERED IT." 

FOLLOWING THIS, EMSPAK WAS ASKED 55 QUESTIONS OF EXACTLY THE SAME
CHARACTER AS THOSE RELATING TO PERSILY, TO EACH OF WHICH HE REITERATED,
WITH MINOR VARIATIONS:  "SAME ANSWER."  THIS WAS OBVIOUSLY, ON THIS
RECORD, NOTHING OTHER THAN A FORMULA FOR REFUSING TO ANSWER WITHOUT
APPEARING TO DO SO.  IN THE FACE OF SUCH A RECORD, I FIND IT IMPOSSIBLE
TO UNDERSTAND HOW THE COURT CAN CONCLUDE THAT EMSPAK WAS NOT CLEARLY
APPRISED OF THE FACT THAT THE SUBCOMMITTEE WANTED HIS ANSWERS. 

WERE THIS OPINION BEING WRITTEN FOR THE COURT, IT WOULD BE NECESSARY,
BEFORE AFFIRMING THIS CONVICTION, TO DEAL WITH THE OTHER POINTS EMSPAK
URGES FOR REVERSAL.  SINCE THE COURT, UNDER ITS VIEW OF THE CASE, DID
NOT REACH ANY OF THEM, I THINK IT WOULD NOT BE APPROPRIATE FOR ME TO
DISCUSS THEM.  I AM THEREFORE CONTENT TO SAY THAT I FIND NONE OF THOSE
POINTS TENABLE ON THIS RECORD. 

I WOULD AFFIRM THE JUDGMENT OF CONVICTION. 

FN1  HOWEVER, I DO AGREE WITH THE COURT THAT THE PRIVILEGE WAS
AVAILABLE AS TO THE QUESTIONS INVOLVED IN COUNTS 59 THROUGH 68 OF THE
INDICTMENT, SINCE, UNDER THE CIRCUMSTANCES SHOWN BY THE RECORD, EACH OF
THOSE QUESTIONS DID CALL FOR A POSSIBLY INCRIMINATORY ANSWER.  BECAUSE
THIS WOULD IN ANY EVENT REQUIRE REVERSAL OF THE CONVICTION ON THOSE
COUNTS, AS TO THEM I NEED NOT REACH THE ISSUE OF WHETHER EMSPAK WAS
ADEQUATELY APPRISED THAT THE SUBCOMMITTEE WAS INSISTING UPON HIS
ANSWERS, DESPITE THE CLAIM OF PRIVILEGE. 

FN2  SEE GREENBERG V. UNITED STATES, 341 U.S. 944 (1951), 343 U.S.
918 (1952); SINGLETON V. UNITED STATES, 343 U.S. 944 (1952), AND THE
DISCUSSION OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN UNITED
STATES V. COFFEY, SUPRA. 

FN3  I CONSIDER THAT THE 10 QUESTIONS INVOLVED IN COUNTS 59-68 OF THE
INDICTMENT QUALIFIED, IN THE CIRCUMSTANCES OF THIS CASE, AS
INCRIMINATORY QUESTIONS UNDER THE "REAL DANGER V. IMAGINARY
POSSIBILITY" STANDARD. 

FN4  61 STAT. 146, 29 U.S.C. SEC. 159(H). 

FN5  18 U.S.C. SEC. 2385. 

FN6  R.S. SEC. 859, 18 U.S.C. (1952 ED.)  SEC.  3486:  "NO TESTIMONY
GIVEN BY A WITNESS BEFORE EITHER HOUSE, OR BEFORE ANY COMMITTEE OF
EITHER HOUSE, OR BEFORE ANY JOINT COMMITTEE ESTABLISHED BY A JOINT OR
CONCURRENT RESOLUTION OF THE TWO HOUSES OF CONGRESS, SHALL BE USED AS
EVIDENCE IN ANY CRIMINAL PROCEEDING AGAINST HIM IN ANY COURT, EXCEPT IN
A PROSECUTION FOR PERJURY COMMITTED IN GIVING SUCH TESTIMONY.  BUT AN
OFFICIAL PAPER OR RECORD PRODUCED BY HIM IS NOT WITHIN THE SAID
PRIVILEGE."  THIS STATUTE, FALLING SHORT OF A COMPLETE GRANT OF
IMMUNITY TO THE WITNESS FROM PROSECUTION ON ACCOUNT OF TESTIMONY GIVEN
BY HIM, WOULD NOT HAVE BEEN EFFECTIVE TO COMPEL TESTIMONY OVER A VALID
CLAIM OF PRIVILEGE, BUT IT WAS EFFECTIVE TO PREVENT THE USE OF SUCH
TESTIMONY AGAINST THE WITNESS IN A SUBSEQUENT CRIMINAL PROSECUTION. 
SEE ADAMS V. MARYLAND, 347 U.S. 179, 182-183 (1954).  THIS STATUTE WAS
IN EFFECT UNTIL AUGUST 20, 1954, WHEN IT WAS SUPERSEDED BY 68 STAT.
745.  THE SUPERSESSION WOULD NOT AFFECT THE INADMISSIBILITY OF
TESTIMONY GIVEN WHILE THE OLD STATUTE WAS IN EFFECT.  SEE CAMERON V.
UNITED STATES, 231 U.S. 710 (1914). 

THE POSSIBILITY THAT A WITNESS MIGHT COMMIT PERJURY IN ANSWERING A
QUESTION HAS NEVER BEEN REGARDED AS JUSTIFICATION FOR INVOKING THE
PRIVILEGE TO THE QUESTION.  SEE NOONAN, INFERENCES FROM THE INVOCATION
OF THE PRIVILEGE AGAINST SELF-INCRIMINATION, 41 VA. L. REV. 311, 321
322 (1955). 
..END :















BART V. UNITED STATES 349 U.S. 219 


NO. 117.  ARGUED APRIL 5, 1955 - DECIDED MAY 23, 1955 - 91 U.S. APP.
D.C. 370, 203 F.2D 45, REVERSED. 


1.  SUMMONED TO TESTIFY BEFORE A CONGRESSIONAL INVESTIGATING
COMMITTEE, PETITIONER REFUSED TO ANSWER CERTAIN QUESTIONS, ON THE
GROUND OF HIS CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  THE
COMMITTEE DID NOT SPECIFICALLY OVERRULE HIS OBJECTION OR DIRECT HIM TO
ANSWER.  HELD:  IN HIS TRIAL FOR A VIOLATION OF 2 U.S.C. SEC. 192, THE
DISTRICT COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL, BECAUSE THE
COMMITTEE HAD FAILED TO LAY THE NECESSARY FOUNDATION FOR A PROSECUTION
UNDER SEC. 192.  QUINN V. UNITED STATES, ANTE, P. 155.  PP. 219-223. 

2.  THE REQUIREMENT OF CRIMINAL INTENT NOT HAVING BEEN SATISFIED AT
THE TIME OF THE HEARING, IT COULD NOT BE SATISFIED NUNC PRO TUNC BY
ABANDONMENT OF PETITIONER'S OBJECTION TWO AND A HALF YEARS LATER ON AN
APPEAL FROM HIS CONVICTION FOR A VIOLATION OF 2 U.S.C.  SEC. 192.  PP.
221-222. 

BART V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

ON NOVEMBER 20, 1950, THE PETITIONER WAS INDICTED UNDER 2 U.S.C. SEC.
192 FOR REFUSING TO ANSWER THIRTY-TWO QUESTIONS PUT TO HIM BY A
SUBCOMMITTEE OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE HOUSE OF
REPRESENTATIVES.  DURING THE TRIAL IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, THE GOVERNMENT ABANDONED TWENTY-FOUR OF THESE
COUNTS.  THE DISTRICT JUDGE, SITTING WITHOUT A JURY, FOUND BART GUILTY
OF THE REMAINING EIGHT CHARGES.  (FN1)  ON APPEAL, THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT REVERSED THE JUDGMENT UPON THREE
OF THE COUNTS AND, ONE JUDGE DISSENTING, AFFIRMED AS TO THE OTHERS. 
(FN2)  FROM THAT DECISION, WE GRANTED CERTIORARI (FN3) AND SET THE CASE
DOWN FOR ARGUMENT ALONG WITH THE TWO COMPANION CASES.  QUINN V. UNITED
STATES, ANTE, P. 155, AND EMSPAK V. UNITED STATES, ANTE, P. 190. 

IN RESPONSE TO A SUBPOENA, PETITIONER APPEARED BEFORE THE
SUBCOMMITTEE ON JUNE 21, 1950.  HE WAS THEN GENERAL MANAGER BOTH OF
FREEDOM OF THE PRESS CO., INC., WHICH PUBLISHES THE DAILY WORKER, AND
OF THE DAILY WORKER ITSELF.  DURING THE COURSE OF THE INTERROGATION,
MEMBERS OF THE COMMITTEE AND THE COMMITTEE COUNSEL POSED VARIOUS
QUESTIONS DEALING WITH BART'S BACKGROUND, HIS ACTIVITIES, AND ALLEGED
ASSOCIATES.  AMONG THESE WERE THE FIVE QUESTIONS WHICH, BECAUSE OF
PETITIONER'S REFUSAL TO ANSWER, LED TO THE CONVICTIONS NOW UNDER
SCRUTINY.  THE PARTICULAR INQUIRIES INVOLVE PETITIONER'S NAME WHEN HE
CAME TO THIS COUNTRY AS A CHILD, HIS NAME BEFORE IT WAS CHANGED YEARS
AGO TO PHILIP BART PURSUANT TO A NEW YORK COURT ORDER, (FN4) HIS
FATHER'S NAME, AND THE IDENTITY OF OFFICIALS OF THE OHIO SECTION OF THE
COMMUNIST PARTY IN 1936.  (FN5)  TO THE QUESTIONS CONCERNING NAME OR
FAMILY BACKGROUND, HE RAISED OBJECTIONS OF PERTINENCY; TO THE OTHER, HE
UNEQUIVOCALLY PLEADED THE PRIVILEGE AGAINST SELF-INCRIMINATION. 

IN FINDING PETITIONER GUILTY, THE TRIAL COURT REJECTED THESE DEFENSES
AS WITHOUT MERIT.  BEFORE THE COURT OF APPEALS, PETITIONER ABANDONED
HIS DEFENSE AS TO LACK OF PERTINENCY.  THE MAJORITY THOUGHT THAT THIS
ABANDONMENT IN EFFECT ERASED PETITIONER'S OBJECTIONS FROM THE COMMITTEE
RECORD AND THAT THEY WERE THUS FACED WITH "NAKED REFUSALS TO ANSWER"
(FN6) WHICH DID NOT REQUIRE AFFIRMATIVE RULINGS FROM THE COMMITTEE.  WE
CANNOT AGREE.  THE OBJECTIONS WERE IN FACT MADE BEFORE THE COMMITTEE
AND THE WITNESS WAS ENTITLED TO A CLEAR-CUT RULING AT THAT TIME, EVEN
THOUGH THE CLAIMS WERE LATER ABANDONED OR FOUND TO BE INVALID.  QUINN
V. UNITED STATES, SUPRA.  WITHOUT SUCH A RULING, EVIDENCE OF THE
REQUISITE CRIMINAL INTENT TO VIOLATE SEC. 192 IS LACKING.  AN
ABANDONMENT MADE TWO AND ONE-HALF YEARS AFTER THE OBJECTIONS WERE
RAISED CANNOT SERVE RETROACTIVELY TO ELIMINATE THE NEED FOR A RULING. 
IF THE REQUIREMENT OF CRIMINAL INTENT IS NOT SATISFIED AT THE TIME OF
THE HEARING, IT CANNOT BE SATISFIED NUNC PRO TUNC BY A LATER
ABANDONMENT OF PETITIONER'S OBJECTION.  (FN7) THEREFORE, THE ISSUE
BEFORE US IS, UPON THE RECORD AS IT STOOD AT THE COMPLETION OF THE
HEARING, WHETHER PETITIONER WAS APPRISED OF THE COMMITTEE'S DISPOSITION
OF HIS OBJECTIONS. 

AT NO TIME DID THE COMMITTEE DIRECTLY OVERRULE PETITIONER'S CLAIMS OF
SELF-INCRIMINATION OR LACK OF PERTINENCY.  NOR WAS PETITIONER
INDIRECTLY INFORMED OF THE COMMITTEE'S POSITION THROUGH A SPECIFIC
DIRECTION TO ANSWER.  AT ONE JUNCTURE, CONGRESSMAN CASE MADE THE
SUGGESTION TO THE CHAIRMAN THAT THE WITNESS "BE ADVISED OF THE
POSSIBILITIES OF CONTEMPT" (FN8) FOR FAILURE TO RESPOND, BUT THE
SUGGESTION WAS REJECTED.  THE CHAIRMAN STATED: 

"NO.  HE HAS COUNSEL.  COUNSEL KNOWS THAT IS THE LAW.  PROCEED, MR.
TAVENNER."  (FN9) 

A FEW MOMENTS LATER, WHEN COMMITTEE COUNSEL INQUIRED AS TO CERTAIN
DETAILS OF PETITIONER'S MARRIAGE, THE FOLLOWING COLLOQUY TOOK PLACE: 

"MR. UNGER (COUNSEL FOR PETITIONER).  MR. CHAIRMAN, WHAT CONCERN IS
IT OF ANYBODY HERE: 

"MR. WALTER.  WE PERMIT YOU TO APPEAR WITH YOUR CLIENT FOR THE
PURPOSE OF ADVISING YOUR CLIENT.  YOU APPARENTLY ARE OLD ENOUGH TO HAVE
HAD SOME EXPERIENCE IN COURT. 

"MR. UNGER.  YES, INDEED. 

"MR. WALTER.  OF COURSE, YOU KNOW THERE ARE MANY PRELIMINARY
QUESTIONS ASKED WITNESSES, LEADING UP TO SOME POINT.  AS THEY ARE
PROPOUNDED YOU WILL READILY LEARN WHAT THE PURPOSE IS.  JUST ADVISE
YOUR CLIENT AND DON'T ARGUE WITH THE COMMITTEE, BECAUSE WE DON'T RULE
ON OBJECTIONS."  (FN10) 

THE QUESTIONING PROCEEDED ON THIS BASIS. 

BECAUSE OF THE CONSISTENT FAILURE TO ADVISE THE WITNESS OF THE
COMMITTEE'S POSITION AS TO HIS OBJECTIONS, PETITIONER WAS LEFT TO
SPECULATE ABOUT THE RISK OF POSSIBLE PROSECUTION FOR CONTEMPT; HE WAS
NOT GIVEN A CLEAR CHOICE BETWEEN STANDING ON HIS OBJECTION AND
COMPLIANCE WITH A COMMITTEE RULING.  (FN11)  BECAUSE OF THIS DEFECT IN
LAYING THE NECESSARY FOUNDATION FOR A PROSECUTION UNDER SEC. 192,
PETITIONER'S CONVICTION CANNOT STAND UNDER THE CRITERIA SET FORTH MORE
FULLY IN QUINN V. UNITED STATES, SUPRA. 

OUR DISPOSITION OF THE CASE MAKES IT UNNECESSARY TO CONSIDER
PETITIONER'S OTHER CONTENTIONS.  THE JUDGMENT BELOW IS REVERSED AND THE
CASE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO ENTER A JUDGMENT
OF ACQUITTAL.  REVERSED. 

FN1  UNITED STATES V. BART, UNREPORTED, CRIMINAL NO. 1746-50
(D.D.C.).  THE OPINIONS OF THE DISTRICT COURT, DENYING PETITIONER'S
MOTIONS TO DISMISS THE INDICTMENT, APPEAR SUB NOM.  UNITED STATES V.
EMSPAK, 95 F. SUPP. 1010, 1012. 

FN2  91 U.S. APP. D.C. 370, 203 F.2D 45. 

FN3  347 U.S. 1011. 

FN4  HEARINGS BEFORE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES
REGARDING COMMUNIST INFILTRATION IN LABOR UNIONS, 81ST CONG., 2D SESS.,
PART III, 2636. 

FN5  AS PHRASED IN THE INDICTMENT, THESE QUESTIONS WERE AS FOLLOWS:

                                  "COUNT THREE 

"WHAT WAS THE NAME OF THE DEFENDANT WHEN HE CAME TO THE UNITED
STATES. 

                                  "COUNT FOUR 

"WHAT WAS THE DEFENDANT'S FATHER'S NAME. 

               "COUNT FIVE 

"UNDER WHAT NAME DID THE DEFENDANT'S FATHER BECOME A CITIZEN OF THE
UNITED STATES. 

                            "COUNT SIX 

"WHAT NAME DID THE DEFENDANT CHANGE HIS NAME FROM. 

     *         *   *         *         *

"COUNT EIGHT 

"WHO WERE THE OTHER OFFICIALS OF THE OHIO SECTION OF THE COMMUNIST
PARTY DURING THE PERIOD WHEN THE DEFENDANT WAS ORGANIZER THERE
(SOMETIME IN 1936)."  TRANSCRIPT OF RECORD, P. 109, BART V. UNITED
STATES, 91 U.S. APP. D.C. 370, 203 F.2D 45. 

FN6  91 U.S. APP. D.C., AT 372, 203 F.2D, AT 47. 

FN7  CF. UNITED STATES V. RUMELY, 345 U.S. 41, 48:  "IN ANY EVENT,
RUMELY'S DUTY TO ANSWER MUST BE JUDGED AS OF THE TIME OF HIS REFUSAL." 

FN8  HEARINGS, SUPRA, NOTE 4, AT P. 2636. 

FN9  IBID. 

FN10  ID., AT 2637. 

FN11  IN ONE INSTANCE, COMMITTEE COUNSEL OBSERVED THAT IN HIS OPINION
THE QUESTION ASKED WAS NOT INCRIMINATING, BUT THIS WAS DISPUTED BY
COUNSEL FOR PETITIONER AND NOT RULED UPON BY THE CHAIR.  WHEN
PETITIONER REPEATED THE OBJECTION, STATING THAT HE FELT THE QUESTION TO
BE OF AN INCRIMINATING NATURE AND THAT HE THEREFORE REFUSED TO ANSWER,
THE QUESTION WAS IMMEDIATELY ABANDONED.  SEE ID., AT 2638-2639. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE MINTON JOINS, DISSENTING. 

THIS CASE IS CONTROLLED ENTIRELY BY THE RULE ENUNCIATED BY THE
MAJORITY IN THE SECOND GROUND FOR THE DECISION IN QUINN V. UNITED
STATES, ANTE, P. 155.  WE SHALL NOT HERE REPEAT OUR COMMENTS MADE
REGARDING THAT RULE AND ITS APPLICATION WHICH ARE SET OUT IN OUR
DISSENT IN THE QUINN AND EMSPAK CASES.  BUT WE CANNOT AGREE THAT UNDER
THE QUINN RULE THE PETITIONER HERE WAS NOT SUFFICIENTLY APPRISED OF THE
DISPOSITION OF HIS FIFTH AMENDMENT AND PERTINENCY OBJECTIONS FOR HIM TO
BE HELD GUILTY OF VIOLATING SEC. 192.  FOR US THE RECORD ESTABLISHES,
AS IT DID FOR THE TWO COURTS BELOW, THAT THE PETITIONER KNEW THAT THE
GROUNDS FOR HIS OBJECTIONS WERE NOT ACCEPTED BY THE COMMITTEE; THAT THE
COMMITTEE REQUIRED HIM TO ANSWER; THAT HE WILLFULLY REFUSED TO ANSWER. 
AS THE MAJORITY STATED THE RULE IN QUINN, P. 170, "THE COMMITTEE IS NOT
REQUIRED TO RESORT TO ANY FIXED VERBAL FORMULA TO INDICATE ITS
DISPOSITION OF THE OBJECTION.  SO LONG AS THE WITNESS IS NOT FORCED TO
GUESS THE COMMITTEE'S RULING, HE HAS NO CAUSE TO COMPLAIN."  UNDER THIS
RULE WE THINK THAT THE EXTRACT FROM THE RECORD SET OUT BELOW PLACES
THIS PETITIONER IN THE STATUS OF ONE WHO "HAS NO CAUSE TO COMPLAIN." 

"MR. WALTER:  DID YOU EVER HOLD ANY POSITIONS OTHER THAN POSITIONS
WITH NEWSPAPERS? 

"MR. BART:  I DID. 

"MR. WALTER:  WHAT WERE THEY? 

"MR. BART:  I WAS ORGANIZER AND HEAD OF THE COMMUNIST PARTY AT
DIFFERENT TIMES, IN DIFFERENT YEARS. 

"MR. WALTER:  WHERE? 

"MR. BART:  IN ILLINOIS AND PENNSYLVANIA, AMONG MANY. 

"MR. TAVENNER:  THE DAILY WORKER OF MARCH 28, 1936, SHOWS YOU TO HAVE
BEEN A SECTION ORGANIZER FOR THE COMMUNIST PARTY IN OHIO.  THAT IS
CORRECT, IS IT NOT? 

"MR. BART:  MOST LIKELY. 

"MR. TAVENNER:  WELL, YOU KNOW WHETHER YOU WERE A SECTION ORGANIZER
FOR THE COMMUNIST PARTY IN OHIO, DO YOU NOT? 

"MR. BART:  I DO NOT KNOW THE EXACT PERIOD OF TIME YOU MENTIONED.  IT
IS 14 YEARS AGO. 

"MR. TAVENNER:  WHO WERE THE OTHER OFFICIALS OF THE OHIO SECTION OF
THE COMMUNIST PARTY DURING THE PERIOD OF TIME YOU WERE ORGANIZER
THERE? 

"MR. BART:  I OBJECT TO THIS QUESTION.  I WILL NOT ANSWER IT,
STANDING ON MY RIGHTS IN ACCORDANCE WITH ARTICLE V OF THE CONSTITUTION,
AND FURTHERMORE I PROTEST BECAUSE THIS COMMITTEE HAS ASKED THIS
QUESTION OF NUMEROUS PEOPLE AND HAS INFRINGED UPON THEIR RIGHTS AS
AMERICAN CITIZENS. 

"MR. TAVENNER:  I THINK, MR. BART, I SHOULD POINT OUT THAT YOUR
TESTIMONY RELATING TO OTHER PEOPLE WHO WERE ASSOCIATED WITH YOU AT THAT
TIME COULD NOT IN ANY WAY INCRIMINATE YOU UNDER THE FIFTH AMENDMENT. 

"MR. UNGER:  I SHOULD LIKE TO CORRECT YOU, MR. TAVENNER. 

"MR. WALTER:  YOU ADVISE YOUR CLIENT. 

"MR. TAVENNER:  YOU HAVE TOLD US YOU WERE A SECTION ORGANIZER FOR THE
COMMUNIST PARTY IN OHIO, AND MY QUESTION NOW IS, WHO WERE THE OFFICIALS
WHO WORKED WITH YOU IN THAT WORK, THAT IS, OFFICIALS OF THE OHIO

"MR. UNGER:  PERMIT ME TO ADVISE MY CLIENT THAT MR. TAVENNER,
COUNSEL, IS IN ERROR IN HIS INTERPRETATION OF THE CONSTITUTION SO FAR
AS THE FIFTH AMENDMENT IS CONCERNED, AND THAT MR. BART, THE WITNESS, IS
ENTIRELY CORRECT IN HIS INTERPRETATION OF THE CONSTITUTION, AND HAS A
RIGHT TO ASSERT THAT THIS COMMITTEE HAS NO RIGHT - NO RIGHT, LET ME
MAKE IT PLAIN: 

"MR. WALTER:  UNDER OUR PROCEDURE THE ATTORNEY IS PERMITTED TO ADVISE
HIS CLIENT AND THEN THE CLIENT, THE WITNESS, ANSWERS THE QUESTION.  YOU
MAY ADVISE YOUR CLIENT. 

     *         *   *         *         * 

"MR. UNGER:  AS HE HAS STATED IN HIS PREVIOUS ANSWER, HE IS NOT
REQUIRED TO TESTIFY AGAINST HIMSELF. 

"MR. BART:  I STAND ON THE ADVICE OF MY COUNSEL.  I AM NOT REQUIRED
TO TESTIFY AGAINST MYSELF, AND IN ACCORDANCE WITH ARTICLE V OF THE
CONSTITUTION I WILL NOT ANSWER THE QUESTION. 

"MR. TAVENNER:  I WAS NOT ASKING YOU TO TESTIFY AGAINST YOURSELF.  I
WAS ASKING YOU TO STATE THE NAMES OF OTHER PERSONS ASSOCIATED WITH
YOU. 

"MR. BART:  I CONSIDER THIS AN ATTEMPT ON THE PART OF THE COMMITTEE
TO USE THIS AGAINST MYSELF AS WELL AS AGAINST OTHERS, AS IT HAS ON MANY
PREVIOUS OCCASIONS. 

"MR. WALTER:  AND THEREFORE YOU REFUSE TO ANSWER? 

"MR. BART:  I REFUSE TO ANSWER." 

THE COLLOQUY SET OUT ABOVE PERTAINS ONLY TO COUNT 8.*  WE THINK THE
RECORD ALSO SHOWS THAT THE COMMITTEE REJECTED THE PERTINENCY OBJECTIONS
ON THE OTHER FOUR QUESTIONS WHICH CONSTITUTE THE OTHER FOUR COUNTS AND
THEREFORE PETITIONER WILLFULLY REFUSED TO ANSWER THESE AS WELL. 
HOWEVER, SINCE CONVICTION ON ANY ONE COUNT IS SUFFICIENT TO SUSTAIN THE
JUDGMENT, ENOUGH OF THE RECORD IS SET OUT ABOVE TO SHOW WHAT WE
CONSIDER TO BE THE ERROR OF THE MAJORITY.  SINCE IN OUR VIEW THE
COMMITTEE APPRISED THE PETITIONER THAT HIS FIFTH AMENDMENT OBJECTION
WAS REJECTED, IT IS NECESSARY TO STATE OUR AGREEMENT WITH THE COURTS
BELOW THAT, AS THE RECORD SHOWS, PETITIONER HAD WAIVED THE PRIVILEGE BY
HIS ANSWERS TO PRIOR QUESTIONS CONCERNING HIS COMMUNIST PARTY
AFFILIATION AND ACTIVITIES.  WE AGREE WITH THE COURT OF APPEALS THAT
THIS IS CONTROLLED BY ROGERS V. UNITED STATES, 340 U.S. 367.  BART V.
UNITED STATES, 91 U.S. APP. D.C. 370, 376, 203 F.2D 45, 51. 

*"COUNT EIGHT - WHO WERE THE OTHER OFFICIALS OF THE OHIO SECTION OF
THE COMMUNIST PARTY DURING THE PERIOD WHEN THE DEFENDANT WAS ORGANIZER
THERE (SOMETIME IN 1936)."  R. 109, BART V. UNITED STATES, 91 U.S. APP.
D.C. 370, 203 F.2D 45. 

IT MIGHT BE BETTER PRACTICE FOR CONGRESSIONAL COMMITTEES TO FOLLOW A
PROCEDURE OF SPECIFICALLY OVERRULING OBJECTIONS OF WITNESSES AND
DIRECTING THE WITNESSES TO ANSWER IN THE MANNER COMMONLY FOLLOWED IN
THE COURTS.  WE FEEL, HOWEVER, THAT IN THIS CASE, WHERE THE PETITIONER
WAS APPRISED THAT HIS OBJECTION WAS REJECTED AND HE STILL REFUSED TO
ANSWER, IT SHOULD BE HELD THAT HE IS GUILTY OF A VIOLATION OF SEC.
192.  WE WOULD AFFIRM THE JUDGMENT BELOW.    MR. JUSTICE HARLAN,
DISSENTING. 

I WOULD AFFIRM THE JUDGMENT OF CONVICTION IN THIS CASE, ON THE
REASONING STATED IN PART II OF MY DISSENTING OPINION IN THE EMSPAK
CASE, ANTE, P. 203, AT P. 213, DECIDED THIS DAY.  TO WHAT IS SAID THERE
I SHOULD ADD WHAT FOLLOWS. 

EVEN UNDER THE COURT'S STANDARD OF "APPRISAL," THE RECORD IN THIS
CASE IS CONVINCING THAT BART MUST HAVE UNDERSTOOD THAT THE SUBCOMMITTEE
WAS INSISTING ON HIS ANSWERS TO THE QUESTIONS INVOLVED IN THE
INDICTMENT.  I NEED ONLY REFER TO THE FACT THAT FOUR OF THE COUNTS OF
THE INDICTMENT CHARGE BART WITH REFUSING TO ANSWER WHAT WAS IN
SUBSTANCE THE SAME QUESTION, NAMELY, WHAT BART'S NAME HAD BEEN BEFORE
HE CHANGED IT.  AS TO THESE QUESTIONS THE RECORD SHOWS THE FOLLOWING: 

"MR. CASE (COMMITTEE MEMBER).  WHAT WAS YOUR NAME AT THE TIME YOU
CAME TO THE UNITED STATES? 

"MR. BART.  I HAVE ALREADY ANSWERED THIS QUESTION. 

"MR. WALTER (COMMITTEE CHAIRMAN).  WHAT WAS IT? 

"MR. UNGER (BART'S COUNSEL).  MR. CHAIRMAN, I THINK WE ARE SPENDING A
GOOD DEAL OF TIME, WITH ALL DUE RESPECT TO THE CHAIR, ON A POINT THAT
HAS ABSOLUTELY NO BEARING ON ANY ISSUE HERE. 

"MR. WALTER.  THAT IS ONLY YOUR OPINION. 

"MR. UNGER.  I SAID THAT WAS MY OPINION. 

"MR. CASE.  MR. CHAIRMAN, I DON'T KNOW WHAT THE QUESTION WILL LEAD UP
TO, BUT IT CERTAINLY HAS BEEN CUSTOMARY, WHEN WE HAVE BEEN
INTERROGATING WITNESSES WHO HAVE COME TO THE UNITED STATES FROM OTHER
COUNTRIES, TO KNOW WHEN THEY CAME TO THE UNITED STATES, AND TO KNOW
UNDER WHAT NAME THEY CAME, AND TO KNOW THE NAME SHOWN ON THE PASSPORT. 
THERE IS NOTHING IMPROPER OR OUT OF THE WAY IN ASKING SUCH A QUESTION. 
I THINK WE SHOULD HAVE AN ANSWER TO THE QUESTION OF THE NAME HE HAD
WHEN HE CAME TO THE UNITED STATES. 

"MR. UNGER.  ARE YOU SUGGESTING THE INQUIRY HAS TO DO WITH WHAT THIS
MAN DID WHEN HE WAS 10 YEARS OLD?  YOU ARE TALKING ABOUT A 10-YEAR-OLD
BOY. 

"MR. WALTER.  JUST A MOMENT.  I THINK MR. TAVENNER SHOULD BE ABLE TO
PROCEED, AND AFTER HIS QUESTIONS, MR. CASE, YOU MAY ASK SUCH QUESTIONS
AS YOU MAY DESIRE.  MAY I SUGGEST, MR. TAVENNER, THAT YOU REFRESH THE
WITNESS' RECOLLECTION BY TELLING HIM WHAT HIS NAME WAS BEFORE HE
ASSUMED HIS PRESENT NAME?  PROCEED. 

"MR. TAVENNER (COMMITTEE COUNSEL).  YOU ARE A NATURALIZED AMERICAN
CITIZEN? 

"MR. BART.  YES. 

"MR. TAVENNER.  HOW DID YOU BECOME NATURALIZED? 

"MR. BART.  THROUGH PROCESS OF MY FATHER. 

"MR. TAVENNER.  WHAT WAS YOUR FATHER'S NAME? 

"MR. BART.  I HAVE ALREADY DEALT WITH THIS QUESTION. 

"MR. TAVENNER.  WHEN WAS YOUR FATHER NATURALIZED? 

"MR. BART.  I DO NOT REMEMBER. 

"MR. UNGER.  JUST A MINUTE. 

"(WITNESS CONFERS WITH HIS COUNSEL.) 

"MR. BART.  ABOUT 30 YEARS AGO. 

"MR. TAVENNER.  DO YOU REFUSE TO TELL THE COMMITTEE YOUR FATHER'S
NAME? 

"MR. UNGER.  MR. TAVENNER, HE DOESN'T REFUSE TO TELL THE COMMITTEE. 
HE IS TRYING TO TELL THE COMMITTEE THAT THIS LINE OF INQUIRY IS A
HIGHLY IMPROPER ONE. 

"MR. WALTER.  THAT IS NOT WITHIN HIS PROVINCE.  THE COMMITTEE
DETERMINES WHAT IS PROPER AND WHAT IS NOT PROPER, AND IT IS NOT UP TO
YOU TO DETERMINE THAT. 

"MR. UNGER.  THAT IS TRUE. 

"MR. CASE.  MR. CHAIRMAN, IT SEEMS TO ME THE COUNSEL SHOULD ADVISE
HIS CLIENT AND NOT THE COMMITTEE. 

"MR. UNGER.  I AM NOT TRYING TO ADVISE THE COMMITTEE.  I TRIED TO
RESPECTFULLY POINT OUT WHY IT IS AN IMPROPER QUESTION.  HE IS NOT
ASHAMED OF HIS FATHER'S NAME OR OF HIS MOTHER'S NAME.  WHAT DIFFERENCE
CAN IT POSSIBLY MAKE WHAT HIS NAME WAS WHEN HE CAME HERE? 

"MR. WALTER.  WE ARE NOT GOING TO HAVE YOU ARGUING WITH THE COMMITTEE
OR GIVING US YOUR LEGAL OPINION, WHICH MAY OR MAY NOT BE WORTH
ANYTHING. 

"MR. UNGER.  I HAVE NO FURTHER COMMENT ON THE QUESTION. 

"MR. WALTER.  ALL RIGHT. 

"MR. BART, YOU CLAIM CITIZENSHIP BY VIRTUE OF YOUR FATHER'S
CITIZENSHIP; IS THAT RIGHT? 

"MR. BART.  THAT IS RIGHT. 

"MR. WALTER.  UNDER WHAT NAME DID YOUR FATHER BECOME A CITIZEN OF THE
UNITED STATES? 

"MR. BART.  UNDER HIS OWN NAME. 

"MR. WALTER.  WHAT WAS THAT NAME? 

"MR. BART.  I HAVE ALREADY STATED MY REPLY TO THIS QUESTION AS FAR AS
I AM CONCERNED. 

"MR. WALTER.  HOW CAN YOU CLAIM CITIZENSHIP BY VIRTUE OF YOUR
FATHER'S CITIZENSHIP IF YOU DON'T KNOW WHAT NAME YOUR FATHER USED WHEN
HE BECAME A CITIZEN? 

"MR. UNGER.  MR. CHAIRMAN: 

"MR. WALTER.  LET THE WITNESS ANSWER THE QUESTION.  YOU MAY ADVISE
YOUR CLIENT. 

"MR. BART.  I HAVE ANSWERED I AM A CITIZEN BY VIRTUE OF THAT FACT,
AND THAT THIS IS MY LEGAL NAME BY WHICH I VOTE AND AM REGISTERED AND AM
KNOWN. 

"MR. WALTER.  WHEN DID YOU LEGALLY CHANGE YOUR NAME? 

"MR. BART.  MANY YEARS AGO. 

"MR. WALTER.  WHERE? 

"MR. BART.  IN THE CITY OF NEW YORK. 

"MR. WALTER.  DID YOU HAVE YOUR NAME CHANGED IN COURT? 

"MR. BART.  YES; ABOUT 15 YEARS AGO. 

"MR. UNGER.  HIS ANSWER IS ABOUT 15 YEARS AGO. 

"MR. WALTER.  I UNDERSTAND.  WHAT NAME DID YOU CHANGE YOUR NAME
FROM? 

"MR. BART.  I HAVE ALREADY STATED MY REPLY TO THIS QUESTION. 

"MR. HARRISON (COMMITTEE MEMBER).  I UNDERSTAND YOU REFUSE TO ANSWER
THE CHAIRMAN'S QUESTION? 

"MR. BART.  MY ANSWER IS THAT I HAVE ANSWERED WHAT MY NAME IS HERE,
WHICH IS THE ONLY QUESTION PERTAINING TO THE INQUIRY, IT SEEMS TO ME. 

"MR. WALTER.  OF COURSE ALL OF THIS IS A MATTER OF PUBLIC RECORD? 

"MR. BART.  CORRECT. 

"MR. WALTER.  AND THEN I SUPPOSE YOU KNOW THAT UNDER THE LAW A
QUESTION INNOCENT ON ITS FACE CAN'T BE ARBITRARILY IGNORED.  YOU CAN'T
REFUSE TO ANSWER SUCH A QUESTION WITHOUT RUNNING THE RISK OF THE
CONSEQUENCES. 

"MR. UNGER.  I THINK, AGAIN, MR. CHAIRMAN, MR. BART HAS INDICATED VERY
PLAINLY HE HAS NOT BEEN CONTUMACIOUS IN ANY REGARD.  HE STATES HIS NAME
HAS BEEN PHILIP BART FOR A LARGE NUMBER OF YEARS. 

"MR. WALTER.  DON'T ARGUE WITH THE COMMITTEE.  YOU ADVISE YOUR CLIENT
AS YOU SEE FIT. 

"MR. CASE.  MR. CHAIRMAN, IT SEEMS TO ME THE WITNESS SHOULD BE
ADVISED OF THE POSSIBILITIES OF CONTEMPT WHEN HE FAILS TO ANSWER A
QUESTION AS SIMPLE AND AS PROPER AS YOUR QUESTION AS TO WHAT HIS NAME
WAS BEFORE IT WAS CHANGED. 

"MR. WALTER.  NO. HE HAS COUNSEL.  COUNSEL KNOWS THAT IS THE LAW. 
PROCEED, MR. TAVENNER."* 

*THE COURT ATTACHES IMPORTANCE TO THE COLLOQUY BETWEEN MR. CASE AND
MR. WALTER SHOWN IN THE LAST TWO PARAGRAPHS QUOTED ABOVE, AND TO MR.
WALTER'S LATER REJOINDER TO MR. UNGER: "OF COURSE, YOU KNOW THERE ARE
MANY PRELIMINARY QUESTIONS ASKED WITNESSES, LEADING UP TO SOME POINT. 
AS THEY ARE PROPOUNDED YOU WILL READILY LEARN WHAT THE PURPOSE IS.
JUST ADVISE YOUR CLIENT AND DON'T ARGUE WITH THE COMMITTEE, BECAUSE WE
DON'T RULE ON OBJECTIONS."  READ IN CONTEXT, THESE EXCERPTS INDICATE TO
ME NOTHING MORE THAN THAT THE COMMITTEE WAS EXPRESSING ITS IMPATIENCE
WITH INTERRUPTIONS BY COUNSEL.  I AM UNABLE TO READ THE RECORD, AS THE
COURT SEEMS TO HAVE DONE, AS INDICATING THAT THE SUBCOMMITTEE WAS
AVOIDING TAKING A POSITION ON BART'S OBJECTIONS. 

THE VERY FACT THAT THE SAME ANSWER WAS SOUGHT IN FOUR DIFFERENT WAYS
MUST HAVE IMPRESSED UPON A MAN OF BART'S INTELLIGENCE THAT THE
COMMITTEE CONSIDERED HIS OBJECTIONS UNFOUNDED, AND WISHED HIM TO
ANSWER. 

FOR THE REASONS STATED IN MY EMSPAK DISSENT, I DO NOT DEAL WITH ANY
OF THE PETITIONER'S OTHER CONTENTIONS, SAVE TO SAY THAT ON THIS RECORD
I CONSIDER THEM ALL UNTENABLE. 

I WOULD AFFIRM THE JUDGMENT OF CONVICTION. 
..END :




UNITED STATES V. OLYMPIC RADIO & TELEVISION, INC. 349 U.S. 232 


NO. 10.  ARGUED APRIL 18-19, 1955 - DECIDED MAY 23, 1955 - 124 CT. CL.
33, 39, 108 F. SUPP. 109, 110 F. SUPP. 600, REVERSED. 


UNDER SEC. 122(D)(6) OF THE INTERNAL REVENUE CODE, A TAXPAYER ON THE
ACCRUAL BASIS CANNOT, IN COMPUTING ITS NET OPERATING LOSS FOR ONE YEAR,
DEDUCT THE AMOUNT OF EXCESS PROFITS TAXES WHICH WERE PAID IN THAT YEAR
BUT WHICH HAD ACCRUED IN AN EARLIER YEAR.  PP. 233-236. 

(A)  SECTION 122(D)(6) DOES NOT GRANT THE TAXPAYER AN OPTION TO TAKE
DEDUCTIONS ON A BASIS THAT IS INCONSISTENT WITH THE METHOD OF
ACCOUNTING WHICH IT EMPLOYS.  PP. 234-235. 

(B)  THE QUESTION OF WHAT DEDUCTIONS ARE PERMISSIBLE UNDER THE
INTERNAL REVENUE CODE IS NOT CONTROLLED BY GENERAL EQUITABLE
CONSIDERATIONS.  P. 236. 

(C)  THE PHRASE "PAID OR ACCRUED" IS NOT TO BE GIVEN A DIFFERENT
MEANING FOR THE PURPOSES OF SEC. 122(D)(6) THAN IT HAS IN OTHER PARTS
OF THE SAME CHAPTER OF THE CODE.  P. 236. 

(D)  THE CONSTRUCTION HERE GIVEN SEC. 122(D)(6) IS IN HARMONY WITH
THE GENERAL RULE THAT A TAXPAYER ON THE ACCRUAL BASIS MUST TAKE
DEDUCTIONS IN THE YEAR OF ACCRUAL.  P. 236. 

(E)  IF THE FACT THAT A PROVISION OF THE TAX LAW FAVORS THE TAXPAYER
ON THE CASH BASIS AND DISCRIMINATES AGAINST THE TAXPAYER ON THE ACCRUAL
BASIS SUGGESTS THAT CHANGES IN THE LAW ARE DESIRABLE, IT IS FOR
CONGRESS, NOT THE COURTS, TO MAKE THEM.  P. 236. 

UNITED STATES V. OLYMPIC RADIO & TELEVISION, INC. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT IN THE COURT OF CLAIMS FOR A TAX REFUND.  THE
TAXPAYER, A NEW YORK CORPORATION, KEPT ITS BOOKS AND ACCOUNTS ON THE
ACCRUAL BASIS AND FILED ITS FEDERAL INCOME TAX RETURNS ON THE SAME
BASIS, USING THE CALENDAR YEAR.  THE TAXPAYER HAD A NET OPERATING LOSS
OF $310,872.60 FOR 1946.  THIS LOSS WAS CARRIED BACK AND SET OFF
AGAINST THE TAXPAYER'S EXCESS PROFITS NET INCOME FOR 1944, AND ITS
EXCESS PROFITS TAX FOR 1944 WAS ADJUSTED ACCORDINGLY.  THAT CARRY-BACK
WAS AUTHORIZED BY THE INTERNAL REVENUE CODE OF 1939, SEC. 122; AND IT
IS NOT IN CONTROVERSY HERE. 

THE TAXPAYER REPORTED AN EXCESS PROFITS TAX LIABILITY OF $346,643.22
FOR 1945.  IN 1946 THE TAXPAYER PAID $263,272.80 IN EXCESS PROFITS
TAXES FOR 1945.  IT CONTENDS THAT THAT AMOUNT, PAID IN 1946, SHOULD
HAVE BEEN ADDED TO THE NET OPERATING LOSS OF $310,872.60 FOR THAT YEAR
AND THAT THE SUM OF THOSE FIGURES, INSTEAD OF $310,872.60, SHOULD HAVE
BEEN CARRIED BACK TO 1944 AS A NET OPERATING LOSS.  IF THAT SHOULD HAVE
BEEN DONE, THE UNITED STATES WOULD NOW OWE THE TAXPAYER THE REFUND
CLAIMED. 

THE COURT OF CLAIMS, BY A DIVIDED VOTE, SUSTAINED THE TAXPAYER'S
CONTENTION AND HELD THAT, IN COMPUTING ITS NET OPERATING LOSS FOR 1946,
THE TAXPAYER WAS ENTITLED TO INCLUDE THE AMOUNT OF EXCESS PROFITS TAX
PAID IN 1946 ON ACCOUNT OF ITS 1945 RETURN.  JUDGMENT WAS ACCORDINGLY
ENTERED FOR THE TAXPAYER.  124 CT. CL. 33, 39, 108 F. SUPP. 109, 110 F.
SUPP. 600.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED (348 U.S. 808) BECAUSE OF A CONFLICT BETWEEN THE
DECISION BELOW AND LEWYT CORP. V. COMMISSIONER, 215 F.2D 518, DECIDED
BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT. 

COMPUTING NET INCOME, "THE NET OPERATING LOSS DEDUCTION COMPUTED UNDER
APPLICABLE HERE, PROVIDES A COMPLICATED FORMULA FOR CARRYING NET
OPERATING LOSSES BACK FOR TWO PRECEDING TAXABLE YEARS AND OVER INTO THE
TWO SUCCEEDING TAXABLE YEARS, THUS TAKING FOR THE LIMITED PURPOSE OF
SEC. 122 A FIVE-YEAR PERIOD AS THE ACCOUNTING UNIT.  THE PART OF SEC.
122 OF WHICH THE TAXPAYER SEEKS TO TAKE ADVANTAGE IS (B)(1) RELATING TO
THE CARRY-BACK.*  BY THE EXPRESS TERMS OF SEC. 122(B)(1) THE CARRY-BACK
PROVISIONS ARE SUBJECT TO THE LIMITATIONS CONTAINED IN SEC. 122 (D)(6),
WHICH PROVIDES IN PART, "THERE SHALL BE ALLOWED AS A DEDUCTION THE
AMOUNT OF TAX IMPOSED BY SUBCHAPTER E OF CHAPTER 2 PAID OR ACCRUED
WITHIN THE TAXABLE YEAR  ...  ."  SUBCHAPTER E OF CHAPTER 2 IDENTIFIES
THE TAX WHICH MAY BE USED AS A DEDUCTION AS THE EXCESS PROFITS TAX. 
BUT IF IT IS TO BE USED AS A DEDUCTION, THE TAX MUST HAVE BEEN "PAID OR
ACCRUED" WITHIN THE TAXABLE YEAR. 

*SECTION 122(B)(1) IS ENTITLED "NET OPERATING LOSS CARRY-BACK" AND
READS AS FOLLOWS: 

"IF FOR ANY TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1941, THE
TAXPAYER HAS A NET OPERATING LOSS, SUCH NET OPERATING LOSS SHALL BE A
NET OPERATING LOSS CARRY-BACK FOR EACH OF THE TWO PRECEDING TAXABLE
YEARS, EXCEPT THAT THE CARRY-BACK IN THE CASE OF THE FIRST PRECEDING
TAXABLE YEAR SHALL BE THE EXCESS, IF ANY, OF THE AMOUNT OF SUCH NET
OPERATING LOSS OVER THE NET INCOME FOR THE SECOND PRECEDING TAXABLE
YEAR COMPUTED (A) WITH THE EXCEPTIONS, ADDITIONS, AND LIMITATIONS
PROVIDED IN SUBSECTION (D)(1), (2), (4), AND (6), AND (B) BY
DETERMINING THE NET OPERATING LOSS DEDUCTION FOR SUCH SECOND PRECEDING
TAXABLE YEAR WITHOUT REGARD TO SUCH NET OPERATING LOSS." 

THE CONTROVERSY HERE REVOLVES AROUND THE MEANING OF "PAID OR
ACCRUED."  THE YEARS 1944 AND 1945 WERE YEARS OF PROFIT FOR THE
TAXPAYER.  THE YEARS 1946 AND 1947 WERE YEARS OF LOSS.  THE TAXPAYER
KEPT ITS BOOKS AND FILED ITS RETURNS ON THE ACCRUAL BASIS OF
ACCOUNTING.  ITS 1945 EXCESS PROFITS TAX THEREFORE ACCRUED IN 1945,
THOUGH IT WAS PAID IN 1946.  YET THE ARGUMENT WHICH PREVAILED BELOW IS
THAT THE TAX PAID IN 1946 ON ACCOUNT OF THE LIABILITY FOR 1945 COULD BE
USED UNDER SEC. 122(D)(6) AS A NET OPERATING LOSS FOR 1946.  WE TAKE
THE OTHER VIEW AND CONCLUDE THAT SEC. 122(D)(6) DOES NOT GRANT A
TAXPAYER AN OPTION TO TAKE DEDUCTIONS ON A BASIS THAT IS INCONSISTENT
WITH THE METHOD OF ACCOUNTING WHICH IT EMPLOYS. 

"IN ACCORDANCE WITH THE METHOD OF ACCOUNTING REGULARLY EMPLOYED IN
KEEPING THE BOOKS" OF THE TAXPAYER. 

TAXABLE YEAR IN WHICH 'PAID OR ACCRUED' OR 'PAID OR INCURRED,'
DEPENDENT UPON THE METHOD OF ACCOUNTING UPON THE BASIS OF WHICH THE NET
INCOME IS COMPUTED, UNLESS IN ORDER TO CLEARLY REFLECT THE INCOME THE
DEDUCTIONS OR CREDITS SHOULD BE TAKEN AS OF A DIFFERENT PERIOD." 

...  'PAID OR ACCRUED' SHALL BE CONSTRUED ACCORDING TO THE METHOD OF
ACCOUNTING UPON THE BASIS OF WHICH THE NET INCOME IS COMPUTED UNDER
THIS PART."  THIS PROVISION OF SEC. 48 WOULD ITSELF SEEM TO BE
CONCLUSIVE OF THE QUESTION, SINCE SEC. 122 IS "IN THIS CHAPTER," TO USE
THE LANGUAGE OF SEC. 48.  AND SEC. 48, TOGETHER WITH SEC. 41 AND SEC.
43, SEEM TO INDICATE THAT THE WORDS "PAID OR ACCRUED" HAVE ONLY ONE
MEANING THROUGHOUT THE CHAPTER, NOT THE CHANGEABLE MEANING WHICH THE
TAXPAYER SEEKS TO GIVE THEM. 

WE DEAL HERE WITH A DEDUCTION WHICH ONE OBTAINS NOT AS OF RIGHT, BUT
AS OF GRACE.  DEPUTY V. DU PONT, 308 U.S. 488, 493.  THE TAXPAYER HAS
THE BURDEN TO SHOW THAT IT IS WITHIN THE PROVISION ALLOWING THE
DEDUCTION.  BUT THE EFFORT HERE MADE, IF SUCCESSFUL, WOULD CAUSE "PAID
OR ACCRUED," AS USED IN SEC. 122(D)(6), TO MEAN SOMETHING DIFFERENT
THAN IT DOES IN OTHER SECTIONS OF THE SAME CHAPTER; AND THAT WOULD FLY
IN THE FACE OF THE EXPRESS COMMAND OF SEC. 48. 

THE COURT OF CLAIMS RECOGNIZED THE FORCE OF THIS ANALYSIS, BUT
CONCLUDED THAT CONGRESS COULD NOT HAVE MEANT WHAT IT SAID BECAUSE, IF
SO, THIS PARTICULAR CARRY-BACK PROVISION WOULD HAVE LITTLE
APPLICATION.  FIRST, MOST CORPORATIONS ARE ON THE ACCRUAL NOT THE CASH
BASIS.  SECOND, IF AN ACCRUAL TAXPAYER IS LIMITED IN ITS DEDUCTIONS TO
EXCESS PROFITS TAXES ACCRUED WITHIN THE TAXABLE YEAR, THE PROVISION HAS
LITTLE VALUE SINCE THERE IS "RARELY A CASE WHEN A TAXPAYER WOULD BE
LIABLE FOR ANY EXCESS PROFITS TAX IN A YEAR IN WHICH IT HAD SUSTAINED A
NET OPERATING LOSS  ...  ."  124 CT. CL., AT 37, 108 F. SUPP., AT 111. 
THIS TAXPAYER ARGUES THE INEQUITY OF THE RESULTS WHICH WOULD FOLLOW
FROM OUR CONSTRUCTION OF THE CODE.  BUT AS WE HAVE SAID BEFORE,
"GENERAL EQUITABLE CONSIDERATIONS" DO NOT CONTROL THE QUESTION OF WHAT
DEDUCTIONS ARE PERMISSIBLE.  DEPUTY V. DU PONT, SUPRA, AT 493.  IT MAY
BE THAT CONGRESS GRANTED LESS THAN SOME THOUGHT OR LESS THAN WAS
ORIGINALLY INTENDED.  WE CAN ONLY TAKE THE CODE AS WE FIND IT AND GIVE
IT AS GREAT AN INTERNAL SYMMETRY AND CONSISTENCY AS ITS WORDS PERMIT. 
WE WOULD NOT BE FAITHFUL TO THE STATUTORY SCHEME, AS REVEALED BY THE
WORDS EMPLOYED, IF WE GAVE "PAID OR ACCRUED" A DIFFERENT MEANING FOR
THE PURPOSES OF SEC. 122(D)(6) THAN IT HAS IN THE OTHER PARTS OF THE
SAME CHAPTER. 

OUR CONSTRUCTION IS IN HARMONY WITH THE GENERAL RULE THAT A TAXPAYER
ON AN ACCRUAL BASIS MUST TAKE DEDUCTIONS IN THE YEAR OF ACCRUAL.  SEE
SECURITY MILLS CO. V. COMMISSIONER, 321 U.S. 281. 

THE FACT THAT THE CONSTRUCTION WE FEEL COMPELLED TO MAKE FAVORS THE
TAXPAYER ON THE CASH BASIS AND DISCRIMINATES AGAINST THE TAXPAYER ON
THE ACCRUAL BASIS MAY SUGGEST THAT CHANGES IN THE LAW ARE DESIRABLE. 
BUT IF THEY ARE TO BE MADE, CONGRESS MUST MAKE THEM.  REVERSED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














LEWYT CORPORATION V. COMMISSIONER OF INTERNAL REVENUE 349 U.S. 237 


NO. 417.  ARGUED APRIL 19, 1955 - DECIDED MAY 23, 1955 - 215 F.2D 518,
AFFIRMED IN PART AND REVERSED IN PART. 


1.  UNDER SEC. 122(D)(6) OF THE INTERNAL REVENUE CODE, A TAXPAYER ON
THE ACCRUAL BASIS CANNOT, IN COMPUTING ITS NET OPERATING LOSS FOR ONE
YEAR, DEDUCT THE AMOUNT OF EXCESS PROFITS TAXES WHICH WERE PAID IN THAT
YEAR BUT WHICH HAD ACCRUED IN AN EARLIER YEAR.  UNITED STATES V.
OLYMPIC RADIO & TELEVISION, INC., ANTE, P. 232.  PP. 237-238. 

2.  UNDER SEC. 122(B)(1) AND SEC. 122(D)(6) OF THE INTERNAL REVENUE
CODE, THE AMOUNT OF 1944 NET INCOME TO BE OFFSET AGAINST THE CARRY-BACK
FROM 1946 IS TO BE DETERMINED IN ACCORD WITH NORMAL PRINCIPLES OF
ACCRUAL ACCOUNTING.  PP. 238-243. 

(A)  THE RULE THAT GENERAL EQUITABLE CONSIDERATIONS DO NOT CONTROL
THE MEASURE OF DEDUCTIONS OR TAX BENEFITS APPLIES AS WELL TO THE
GOVERNMENT AS TO THE TAXPAYER.  P. 240. 

(B)  IN SEC. 122(D)(6), THE WORD "IMPOSED" WAS USED TO IDENTIFY THE
TAX THAT "ACCRUED," NOT TO DEFINE THE AMOUNT OF THE TAX THAT IS TO BE
LEVIED AND COLLECTED.  PP. 240-242. 

LEWYT CORPORATION V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A COMPANION CASE TO UNITED STATES V. OLYMPIC RADIO &
TELEVISION, INC., ANTE, P. 232.  THE MAIN POINT IN THE TWO CASES IS THE
SAME - WHETHER A TAXPAYER ON THE ACCRUAL BASIS CAN, IN COMPUTING ITS
NET OPERATING LOSS FOR ONE YEAR, DEDUCT THE AMOUNT OF EXCESS PROFITS
TAXES WHICH WERE PAID IN THAT YEAR BUT HAD ACCRUED IN AN EARLIER YEAR. 

THE YEARS 1944 AND 1945 WERE YEARS OF PROFIT FOR THE TAXPAYER.  FOR
THE YEARS 1946 AND 1947, THE TAXPAYER INCURRED NET OPERATING LOSSES
WHICH WERE ALLOWED BY THE COMMISSIONER AS CARRY-BACK DEDUCTIONS TO THE
YEARS 1944 AND 1945.  THE TAXPAYER SOUGHT TO AUGMENT ITS NET OPERATING
LOSS FOR 1946 BY THE AMOUNT OF EXCESS PROFITS TAXES WHICH IT PAID IN
1946 ON ACCOUNT OF ITS 1945 EXCESS PROFITS TAX LIABILITY.  THE
COMMISSIONER DISALLOWED THE DEDUCTION AND THE TAX COURT SUSTAINED THE
COMMISSIONER.  18 T.C. 1245.  THE COURT OF APPEALS AFFIRMED.  215 F.2D
518.  THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE GRANTED
(348 U.S. 895) TO RESOLVE THE CONFLICT WITH THE OLYMPIC RADIO CASE. 
OUR VIEWS, AS EXPRESSED IN THE LATTER CASE, COINCIDE WITH THOSE OF THE
COURT OF APPEALS.  ACCORDINGLY, WE AFFIRM THAT PART OF THE JUDGMENT. 

THERE IS PRESENT IN THIS CASE A POINT NOT INVOLVED IN THE OLYMPIC
RADIO CASE.  THE QUESTION IS WHETHER THE EXCESS PROFITS TAX THAT MAY BE
OFFSET AGAINST 1944 NET INCOME IS THE AMOUNT OF EXCESS PROFITS TAX
REPORTED FOR THE YEAR IN QUESTION OR THE AMOUNT ULTIMATELY FOUND TO BE
DUE.  THE TAXPAYER CLAIMS IT IS THE FORMER; THE COMMISSIONER, THE
LATTER. 

THE QUESTION CENTERS ON SEC. 122(B)(1) AND SEC. 122(D)(6).  AS WE
HAVE SEEN IN THE OLYMPIC RADIO CASE, SEC. 122(B)(1) DIRECTS THAT THE
NET OPERATING LOSS FOR A GIVEN YEAR BE CARRIED BACK TO THE TWO
PRECEDING TAXABLE YEARS.*  AND SEC. 122(D)(6) ALLOWS AS A DEDUCTION
"THE AMOUNT OF TAX IMPOSED BY SUBCHAPTER E OF CHAPTER 2 (I.E., THE
EXCESS PROFITS TAX) PAID OR ACCRUED WITHIN THE TAXABLE YEAR ...  ." 

*SECTION 122(B)(1) PROVIDES: 

"IF FOR ANY TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1941, THE
TAXPAYER HAS A NET OPERATING LOSS, SUCH NET OPERATING LOSS SHALL BE A
NET OPERATING LOSS CARRY-BACK FOR EACH OF THE TWO PRECEDING TAXABLE
YEARS, EXCEPT THAT THE CARRY-BACK IN THE CASE OF THE FIRST PRECEDING
TAXABLE YEAR SHALL BE THE EXCESS, IF ANY, OF THE AMOUNT OF SUCH NET
OPERATING LOSS OVER THE NET INCOME FOR THE SECOND PRECEDING TAXABLE
YEAR COMPUTED (A) WITH THE EXCEPTIONS, ADDITIONS, AND LIMITATIONS
PROVIDED IN SUBSECTION (D)(1), (2), (4), AND (6), AND (B) BY
DETERMINING THE NET OPERATING LOSS DEDUCTION FOR SUCH SECOND PRECEDING
TAXABLE YEAR WITHOUT REGARD TO SUCH NET OPERATING LOSS." 

THE TAXPAYER'S NET INCOME FOR 1944, AS SHOWN BY ITS RETURN, WAS
$827,852.99; AND, AS FINALLY DETERMINED, WAS $584,866.81.  THE EXCESS
PROFITS TAX DUE ACCORDING TO ITS 1944 RETURN WAS $625,561.59.  THE
COMMISSIONER, AFTER ALLOWING AS A DEDUCTION A NET OPERATING LOSS CARRY
BACK OF $164,326.38 ARISING IN 1946, AND MAKING OTHER ADJUSTMENTS,
ULTIMATELY DETERMINED THE TAXPAYER'S EXCESS PROFITS TAX LIABILITY FOR
1944 TO BE $280,540.33.  THE COMMISSIONER COMPUTED THE NET INCOME FOR
1944 AT $304,326.48, THAT IS, $584,866.81 MINUS $280,540.33.  SINCE THE
NET OPERATING LOSS OF $164,326.38 WAS LESS THAN $304,326.48, THERE WAS
NO LOSS TO BE CARRIED BACK TO 1945, AS SEC. 122(B)(1) PROVIDES "  ...
THAT THE CARRY-BACK IN THE CASE OF THE FIRST PRECEDING TAXABLE YEAR
SHALL BE THE EXCESS, IF ANY, OF THE AMOUNT OF SUCH NET OPERATING LOSS
OVER THE NET INCOME FOR THE SECOND PRECEDING TAXABLE YEAR  ...  ." 

THE TAXPAYER, HOWEVER, CONTENDS THAT THE EXCESS PROFITS TAX "ACCRUED"
IN 1944 IS THE TAX SHOWN ON ITS RETURN FOR THAT YEAR, VIZ.,
$625,561.59.  IF THIS LARGER AMOUNT IS THE CORRECT FIGURE, THEN THE
DEDUCTION ALLOWED AGAINST 1944 INCOME WILL BE SO GREAT AS TO LEAVE A
CARRY-BACK WHICH CAN BE DEDUCTED AGAINST 1945 INCOME. 

THE CONTROVERSY TURNS ON THE MEANING OF THE CLAUSE IN SEC. 122(D)(6)
WHICH READS, "THE AMOUNT OF TAX IMPOSED BY SUBCHAPTER E OF CHAPTER 2
...  ACCRUED WITHIN THE TAXABLE YEAR  ...  ."  THE COMMISSIONER
CONTENDS THAT THE TAX "IMPOSED" IS THE TAX ULTIMATELY DETERMINED TO BE
DUE.  THE ARGUMENT IS THAT THE TAXPAYER HAVING ONCE GOT BACK, THROUGH
CREDIT OR REFUND, THE DIFFERENCE BETWEEN THE AMOUNT OF THE TAX
"ACCRUED" IN 1944 AND THE AMOUNT FINALLY DETERMINED TO BE DUE, NO
DOUBLE BENEFIT SHOULD BE INFERRED.  THE DOUBLE BENEFIT, IT IS ARGUED,
SHOULD CERTAINLY BE DENIED WHEN THE FIGURE UPON WHICH IT IS BASED HAS
NO ECONOMIC REALITY. 

BUT THE RULE THAT GENERAL EQUITABLE CONSIDERATIONS DO NOT CONTROL THE
MEASURE OF DEDUCTIONS OR TAX BENEFITS CUTS BOTH WAYS.  IT IS AS
APPLICABLE TO THE GOVERNMENT AS TO THE TAXPAYER.  CONGRESS MAY BE
STRICT OR LAVISH IN ITS ALLOWANCE OF DEDUCTIONS OR TAX BENEFITS.  THE
FORMULA IT WRITES MAY BE ARBITRARY AND HARSH IN ITS APPLICATIONS.  BUT
WHERE THE BENEFIT CLAIMED BY THE TAXPAYER IS FAIRLY WITHIN THE
STATUTORY LANGUAGE AND THE CONSTRUCTION SOUGHT IS IN HARMONY WITH THE
STATUTE AS AN ORGANIC WHOLE, THE BENEFITS WILL NOT BE WITHHELD FROM THE
TAXPAYER THOUGH THEY REPRESENT AN UNEXPECTED WINDFALL.  SEE BULLEN V.
WISCONSIN, 240 U.S. 625, 630. 

WHEN CONGRESS WROTE THE WORD "IMPOSED" INTO SEC. 122(D)(6), IT MIGHT
HAVE USED IT IN ONE OF TWO DIFFERENT SENSES - EITHER TO IDENTIFY THE
TAX OR TO DEFINE THE AMOUNT OF THE TAX THAT IS TO BE LEVIED AND
COLLECTED.  WE THINK THAT CONGRESS USED "IMPOSED" IN THE FORMER SENSE. 

IN THE FIRST PLACE, THE DEDUCTION ALLOWED BY SEC. 122(D)(6) IS NOT
THE TAX "IMPOSED" BY SUBCHAPTER E OF CHAPTER 2.  IT IS "THE AMOUNT OF
TAX IMPOSED BY SUBCHAPTER E OF CHAPTER 2  ...  ACCRUED WITHIN THE
TAXABLE YEAR."  THE WORD "IMPOSED" WHEN USED IN CONJUNCTION WITH
"ACCRUED" MAKES TOLERABLY CLEAR THAT "IMPOSED" MERELY IDENTIFIES OR
DESCRIBES THE TAX THAT "ACCRUED."  THAT IS TO SAY, THE SENTENCE AS A
WHOLE INDICATES THAT "IMPOSED" IS USED MERELY BY WAY OF REFERENCE.  IT
SEEMS CLEAR THAT CONGRESS HAD THAT UNDERSTANDING.  THE SENATE FINANCE
COMMITTEE REPORTED: 

"SECTION 122 OF THE CODE, RELATING TO COMPUTATION OF THE NET
OPERATING LOSS DEDUCTION ALLOWED BY SECTION 23(S) OF THE CODE, IS
AMENDED SO AS TO ALLOW THE EXCESS PROFITS TAX PAID OR ACCRUED WITHIN
TAXABLE YEARS (SUBJECT TO CERTAIN RULES) AS A DEDUCTION IN COMPUTING
NET OPERATING LOSS FOR, AND NET OPERATING LOSS CARRY-OVER AND CARRY
BACK FROM, SUCH TAXABLE YEARS."  S. REP. NO. 1631, 77TH CONG., 2D
SESS., P. 67.  AND SEE H.R. REP. NO. 2333, 77TH CONG., 2D SESS., P.
65. 

THAT INDICATES THAT THE TEST OF DEDUCTIBILITY UNDER SEC. 122(D)(6) IS
WHETHER THE TAX "ACCRUED" WITHIN THE TAXABLE YEAR. 

SECONDLY, THE GENERAL SECTION DEALING WITH DEDUCTIONS, SEC. 23,
ALLOWS DEDUCTIONS FOR TAXES PAID OR ACCRUED DURING THE TAXABLE YEAR,
WITH CERTAIN SPECIFIED EXCEPTIONS.  SEC.  23(C).  SOME OF THE EXCEPTED
TAXES ARE IDENTIFIED BY WELL-KNOWN NAMES, E.G., FEDERAL INCOME TAXES,
ESTATE, INHERITANCE, LEGACY, SUCCESSION, AND GIFT TAXES.  SEE SEC.
23(C)(1)(A), (D).  OTHER TAXES EXCEPTED ARE IDENTIFIED BY REFERENCE TO
THE TAXES "IMPOSED" BY CERTAIN PROVISIONS OF THE LAW.  THUS SEC.
23(C)(1)(B) EXCEPTS "WAR-PROFITS AND EXCESS-PROFITS TAXES IMPOSED BY
...  SUBCHAPTER E OF CHAPTER 2."  THE APPLICABLE TREASURY REGULATION
INDICATES THAT THE WORD "IMPOSED" IDENTIFIES THE TAX.  IT PROVIDES:
"SUBJECT TO THE EXCEPTION STATED IN THIS SECTION  ...  TAXES IMPOSED BY
THE UNITED STATES  ...  ARE DEDUCTIBLE FROM GROSS INCOME FOR THE YEAR
IN WHICH PAID OR ACCRUED."  26 CFR SEC. 39.23(C)-1. 

122(D)(6) WAS TAKEN ALMOST VERBATIM FROM SEC. 23.  THAT SECTION AS
AMENDED BY THE REVENUE ACT OF 1941 HAD PROVIDED THAT, IN COMPUTING NET
INCOME, A DEDUCTION FOR TAXES "PAID OR ACCRUED WITHIN THE TAXABLE YEAR"
SHOULD BE ALLOWED. 

AS RESPECTS THE EXCESS PROFITS TAX, SEC. 23(C)(2) PROVIDED: 

"FOR THE PURPOSES OF THIS SUBSECTION, IN THE CASE OF THE EXCESS
PROFITS TAX IMPOSED BY SUBCHAPTER E OF CHAPTER 2: 

"(A)  THE DEDUCTION SHALL BE LIMITED TO THE TAX IMPOSED FOR THE
TAXABLE YEAR  ...  ." 

IT WOULD SEEM THAT (A) WOULD HAVE LIMITED THE SEC. 122(D)(6)
ADJUSTMENT TO THE TAX FINALLY PAID.  BUT (A) WAS OMITTED FROM SEC.
122(D)(6).  THE WORD "IMPOSED" AS USED IN THE QUANTITATIVE SENSE WAS
DROPPED, WHILE THE WORD "IMPOSED" AS USED TO IDENTIFY THE TAX WAS
RETAINED. 

FINALLY, THE TAX THAT "ACCRUED" WITHIN A GIVEN YEAR IS NOT THE TAX
FINALLY DETERMINED TO BE DUE BUT THE TAX BEFORE ULTIMATE ADJUSTMENTS
ARE MADE.  THAT IS ELEMENTARY IN TAX LAW.  SEE SECURITY FLOUR MILLS CO.
V. COMMISSIONER, 321 U.S. 281, 284.  IT WOULD SEEM THEREFORE THAT THE
CONCEPT "ACCRUED" EMBODIES THE ANNUAL ACCOUNTING PRINCIPLE.  IF, IN
CASE OF A TAXPAYER ON THE ACCRUAL BASIS, EVENTS AFTER THE TAXABLE YEAR
ARE TAKEN INTO ACCOUNT, THE WORD "ACCRUED" WOULD BE EFFECTIVELY READ
OUT OF SEC. 122(D)(6) OR GIVEN A VARIED MEANING, CONTRARY TO OUR RULING
IN THE OLYMPIC RADIO CASE. 

IT IS TRUE THAT THE COMPUTATIONS UNDER SEC. 122 ARE DESIGNED TO
SPREAD LOSSES OVER A FIVE-YEAR PERIOD.  BUT WE ARE CONCERNED WITH A
TECHNICAL CONCEPT THAT IS BEING USED AS THE BASIS OF THE FORMULA FOR
THAT REALLOCATION.  WE FIND NO JUSTIFICATION FOR TAKING "ACCRUED" AS
USED IN SEC. 122(D)(6) TO MEAN ONE THING IN THE SETTING OF THE OLYMPIC
RADIO CASE AND ANOTHER IN THIS SITUATION. 

OUR CONCLUSION IS IN ACCORD WITH A LINE OF RELATED DECISIONS.  THE
WHOLE TAX SCHEME HAS BEEN POSITED ON THE BASIS THAT THE DUTY TO PAY IS
WITHOUT REGARD TO THE DEDUCTION MADE AVAILABLE BY THE CARRY-BACK.  SEE
MANNING V. SEELEY TUBE & BOX CO., 338 U.S. 561, 567.  ONLY RECENTLY WE
APPLIED THAT PRINCIPLE TO THE EXCESS PROFITS TAX.  IN UNITED STATES V.
KOPPERS CO., 348 U.S. 254, WE HELD THAT THESE TAXES WERE PAYABLE IN
FULL THE YEAR WHEN THEY WERE DUE AND THAT INTEREST WAS PAYABLE ON THE
AMOUNTS SO DUE, EVEN THOUGH ULTIMATELY PORTIONS OF THE TAXES WERE
ABATED. 

IN SHORT, THE AMOUNT OF TAX ACCRUED WITHIN THE TAXABLE YEAR UNDER
SEC. 122(D)(6) IS TO BE DETERMINED IN ACCORD WITH THE NORMAL ACCOUNTING
CONCEPTS RELEVANT TO THE ACCRUAL BASIS.  THAT AMOUNT IS NOT, OF COURSE,
TO BE ASCERTAINED SOLELY BY REFERENCE TO THE FIGURE SET FORTH IN THE
TAXPAYER'S RETURN, FOR THAT FIGURE MAY BE ERRONEOUSLY COMPUTED ON THE
ACCRUAL BASIS.  BUT WHEN AN AMOUNT IS ARRIVED AT BY PROPER APPLICATION
OF RECOGNIZED ACCOUNTING PRINCIPLES ON THE ACCRUAL BASIS, THE TEST OF
SEC. 122(D)(6) HAS BEEN MET.  EVENTS AND TRANSACTIONS OF LATER YEARS,
IRRELEVANT TO A DETERMINATION OF INCOME ON THE ACCRUAL BASIS, DO NOT
WARRANT ALTERATION OF THE FIGURE COMPUTED UNDER SEC. 122(D)(6) FOR THE
YEAR IN QUESTION.  AFFIRMED IN PART AND REVERSED IN PART. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED AND MR. JUSTICE BURTON
JOIN, DISSENTING. 

THIS CASE INVOLVES CONSTRUCTION OF A RATHER OPAQUELY WORDED PROVISION
OF THE INTERNAL REVENUE CODE OF 1939, SEC. 122.  BUT THE PROBLEM TO
WHICH THIS SECTION IS DIRECTED, ITS OBJECTIVES AND THE GENERAL PLAN BY
WHICH THEY ARE PURSUED, OUGHT NOT TO ELUDE CLARITY. 

OUR SYSTEM OF INCOME TAXATION OPERATES ON AN ANNUAL BASIS.  EACH
TAXPAYER IS REQUIRED TO DETERMINE, ON THE BASIS OF KNOWLEDGE AVAILABLE
TO HIM AT THE END OF THE TAXABLE YEAR, THE AMOUNT OF INCOME OR LOSS FOR
THAT YEAR.  IN ITS ORIGINAL STRICT FORM THIS SYSTEM DID NOT PERMIT
READJUSTMENT OF THE ANNUAL INCOME FIGURE TO REFLECT UNANTICIPATED
EVENTS OCCURRING IN SUBSEQUENT YEARS - FOR INSTANCE, REPAYMENT IN A
LATER YEAR OF MONEY RECEIVED FROM SALE OF GOODS OR SERVICES AND
REPORTED AS INCOME IN THE EARLIER YEAR - EVEN THOUGH LOGICALLY AND
PRACTICALLY THESE FACTS OPERATED TO REDUCE THE INCOME AS ORIGINALLY
REPORTED.  MORE IMPORTANT, THE SYSTEM REQUIRED THAT A TAXPAYER WITH
PROFIT IN ONE YEAR AND AN EQUAL LOSS IN THE NEXT YEAR PAY TAXES IN THE
YEAR OF PROFIT WITHOUT REGARD TO THE LOSS IN THE NEXT YEAR, EVEN THOUGH
FROM A BUSINESS AND HUMAN POINT OF VIEW THE TAXPAYER, OVER THE BROADER
PERIOD OF TWO YEARS, HAD NO INCOME. 

HERE WE ARE DEALING WITH CERTAIN AMELIORATIONS OF THE UNDULY DRASTIC
CONSEQUENCES OF SUCH A SYSTEM IN ITS RIGID FORM.  PRIMARILY WE HAVE TO
CONSIDER SEC. 122 OF THE INTERNAL REVENUE CODE, WHICH, TO A LIMITED
DEGREE, PERMITS REFLECTION OF THE FACT THAT INCOME IN ONE YEAR MAY, IN
THE NOT UNCOMMON FLUCTUATION OF BUSINESS AFFAIRS, HAVE BEEN OFFSET BY
LOSSES INCURRED IN SUBSEQUENT OR PRECEDING YEARS.  AT THE TIME HERE
RELEVANT, SEC. 122 PROVIDED THAT IF A "NET OPERATING LOSS" IN BUSINESS
OPERATIONS OCCURRED IN ONE YEAR, AND NET INCOME HAD BEEN OR WAS LATER
RECEIVED IN ANY OF THE TWO PRECEDING OR SUCCEEDING YEARS, THIS NET
INCOME COULD BE CANCELLED AGAINST THE LOSS BY "CARRY-BACK" OR "CARRY
OVER" OF THE LOSS TO THE YEAR IN WHICH INCOME WAS RECEIVED.  IF THE
LOSS WERE CARRIED BACK, REDUCING THE INCOME ALREADY REPORTED, TAXES
ALREADY PAID ON THE AMOUNT OF INCOME CANCELLED WERE TO BE REFUNDED. 
STRIPPED OF DETAILS, THE SCHEME APPEARS SIMPLE.  HOWEVER, WITH A VIEW
TO DEALING COMPREHENSIVELY WITH THE MULTIFARIOUS MANIFESTATIONS OF
BUSINESS ACTIVITIES, THE SCHEME AS EMBODIED IN INTRICATE STATUTORY FORM
RAISES DIFFICULTIES.  THEY ARE ACCENTUATED IN THIS CASE BECAUSE OF THE
RELEVANCE OF OTHER PECULIARITIES OF TAX ACCOUNTING. 

THUS, THE FIRST QUESTION RAISED IN THIS CASE, ONE ALREADY DEALT WITH
IN UNITED STATES V. OLYMPIC RADIO & TELEVISION, INC., ANTE, P. 232,
BRINGS INTO FOCUS THE DIFFERENCES BETWEEN TWO TAX ACCOUNTING SYSTEMS,
ONE IN WHICH THE YEAR'S TRANSACTIONS ARE RECORDED ON A CASH RECEIPTS
AND DISBURSEMENTS BASIS, AND THE OTHER UTILIZING THE ACCRUAL SYSTEM. 
WE AGREE THAT THIS TAXPAYER, WHOSE TAXES FOR ALL OTHER PURPOSES ARE
CALCULATED ON THE ACCRUAL SYSTEM, MUST DETERMINE THE AMOUNT OF THE LOSS
WHICH MAY BE CARRIED FORWARD OR BACK ON THE SAME BASIS. 

THE OTHER QUESTION, HOWEVER, BRINGS INTO PLAY THE MORE COMPLEX
PROVISIONS OF SEC. 122 AS WELL AS A SECOND STATUTORY MODIFICATION OF
THE STRICT ANNUAL CONCEPT.  THIS MODIFICATION GROWS OUT OF THE
"RENEGOTIATION" SYSTEM DEVISED BY CONGRESS TO DEAL WITH POTENTIALITIES
OF UNCONSCIONABLE PROFITS TO WAR CONTRACTORS PROVIDING SUPPLIES TO THE
GOVERNMENT.  UNDER IT, THE CONTRACT PRICE ORIGINALLY AGREED UPON
BETWEEN THE CONTRACTOR AND THE GOVERNMENT IS SUBJECT TO "RENEGOTIATION"
AT A LATER DATE TO DETERMINE WHETHER WHAT ORIGINALLY HAD BEEN THOUGHT
TO HAVE BEEN A FAIR PRICE IN FACT PROVED OVERLY GENEROUS.  IF SO, THE
GOVERNMENT WAS ENTITLED TO A REDUCTION IN THE PRICE OR, IF PAYMENT HAD
ALREADY BEEN MADE, A REFUND OF THE DISALLOWED PROFIT.  NATURALLY
ENOUGH, THE TAXPAYER WAS PERMITTED TO REFLECT THE FACT THAT HE HAD BEEN
REQUIRED TO REPAY AMOUNTS ON THE BASIS OF WHICH HE ORIGINALLY PAID
INCOME TAXES BY REOPENING THE EARLIER TAX RETURN, REDUCING THE INCOME
REPORTED AND THE TAX DUE.  26 U.S.C. SEC. 3806(B). 

WE ARE CONCERNED HERE WITH A TAXPAYER ON THE ACCRUAL BASIS WHICH IN
1946 SUFFERED A NET OPERATING LOSS ($164,326.38), BUT IN 1944 AND 1945
HAD A CONSIDERABLE NET INCOME ($827,852.99 (FN1) AND $1,215,320.25
RESPECTIVELY).  IN 1944 AND 1945 PETITIONER WAS THEREFORE REQUIRED TO
PAY BOTH CORPORATE INCOME AND EXCESS PROFITS TAXES.  MUCH OF THE INCOME
ACCRUED BY PETITIONER IN THE YEAR 1944 WAS DERIVED FROM WAR CONTRACTS. 
RENEGOTIATION IN SUBSEQUENT YEARS REDUCED THE AMOUNTS ACTUALLY RECEIVED
OR RETAINED BY PETITIONER BELOW THE FIGURES REPORTED FOR 1944 BY
$397,970.00.  PETITIONER, THEREFORE, RECEIVED A REFUND OF EXCESS
PROFITS TAXES REFLECTING THIS FACT. 

ON THE BASIS OF PETITIONER'S OPERATING LOSS IN 1946, IT IS ENTITLED
TO CARRY BACK THIS LOSS UNDER SEC. 122.  WHERE, AS HERE, THE TAXPAYER
HAS HAD NET INCOME IN BOTH OF THE TWO YEARS PRECEDING THE LOSS YEAR,
THAT SECTION DIRECTS THAT THE CARRY-BACK BE FIRST APPLIED TO THE
EARLIER TAXABLE YEAR, 1944, AND THE REMAINDER, IF ANY, BE APPLIED TO
REDUCE INCOME FOR 1945.  IT IS NOT IN DISPUTE THAT PETITIONER COULD
CARRY BACK TO 1944 THE FULL AMOUNT OF THE NET OPERATING LOSS WHICH
INCURRED IN 1946, AND PETITIONER'S INCOME AND EXCESS PROFITS TAXES FOR
THAT YEAR HAVE BEEN REDUCED TO THE FULL EXTENT OF THIS LOSS.  DOES
ANYTHING REMAIN TO BE APPLIED IN REDUCTION OF 1945 INCOME? 

CONGRESS HAS PROVIDED A DETAILED FORMULA FOR DETERMINING HOW MUCH
LOSS REMAINS FOR APPLICATION IN 1945.  THE DIFFICULTY ARISES IN
APPLYING THE FORMULA, BECAUSE CONGRESS HAS NOT MADE EXPLICIT, AND SO
LEFT IN DOUBT, WHAT SET OF FIGURES MAY FAIRLY BE USED IN TRANSLATING
THE GENERALITY OF THE FORMULA INTO AMOUNTS.  THE DIFFICULTY IS ENHANCED
BECAUSE THE RELEVANCE OF SOME OF THE FACTORS USED IN THE FORMULA TO ANY
DISCERNIBLE CONGRESSIONAL PURPOSE IS UNCLEAR.  LOGICALLY ONE WOULD
EXPECT THAT THE STATUTORY FORMULA WOULD BE DESIGNED MERELY TO PERMIT
APPLICATION TO 1945 OF SO MUCH OF THE 1946 LOSS AS WAS NOT USED TO
CANCEL 1944 TAXES.  BUT CONGRESS, FOR ITS OWN GOOD REASONS, FELT THAT
CERTAIN OTHER FACTORS SHOULD BE REFLECTED IN THIS CALCULATION.  ONE
FACTOR, WHICH IT IS NOT FOR US TO EXPLAIN, WAS THE AMOUNT OF THE
TAXPAYER'S EXCESS PROFITS TAX FOR 1944. 

TO VIVIFY THIS PROBLEM, ONE MUST REDUCE TO TECHNICAL CONCRETENESS THE
STATUTORY FORMULA.  IT STATES, INSOFAR AS HERE RELEVANT, THAT THE
AMOUNT OF CARRY-BACK LEFT FOR APPLICATION IN 1945 IS THE AMOUNT OF THE
1946 LOSS, LESS THE FIGURE ARRIVED AT BY SUBTRACTING FROM "THE NET
INCOME FOR THE SECOND PRECEDING TAXABLE YEAR (1944)," "THE AMOUNT OF
TAX IMPOSED BY SUBCHAPTER E OF CHAPTER 2 PAID OR ACCRUED WITHIN THE
TAXABLE YEAR (1944)."  THE LATTER IS A DRY STATUTORY DESCRIPTION OF THE
EXCESS PROFITS TAX. 

THUS IN ADDITION TO PETITIONER'S 1944 NET INCOME, THE FORMULA MAKES
THE 1944 EXCESS PROFITS TAX FIGURE CRUCIAL.  THE QUESTION HERE IS:
WHAT 1944 EXCESS PROFITS TAX FIGURE?  THE AMOUNT OF THE TAX DUE ON THE
BASIS OF THE TAXPAYER'S KNOWLEDGE AT THE CLOSE OF THE 1944 TAXABLE
YEAR, THAT IS, WHAT ITS TRUTHFUL BALANCE SHEET FOR THAT YEAR INDICATED
TO BE THE TAX ($625,561.59)?  OR THE AMOUNT OF THE TAX WHICH PETITIONER
EVENTUALLY AND DEFINITIVELY HAD TO PAY AFTER SUBSEQUENT EVENTS HAD
RESULTED IN A DOWNWARD REVISION OF THE ORIGINALLY REPORTED 1944 TAX
($318,577.67 TAX REDUCTION DUE TO RENEGOTIATION, PLUS APPROXIMATELY
$150,000.00 DUE TO THE CARRY-BACK OF THE 1946 LOSS)? 

IF IT IS THE FORMER FIGURE, PETITIONER'S EXCESS PROFITS TAX REPORTED
IN 1944 ($625,561.59) WAS LARGER (BECAUSE IT DID NOT TAKE INTO ACCOUNT
THE THEN UNKNOWN REDUCTION DUE TO RENEGOTIATION AND CARRY-BACK) THAN
THE FIGURE FOR 1944 NET INCOME ($584,866.81), WHICH, FOR REASONS LATER
TO BE EXPLAINED, ALL PARTIES CONCEDE SHOULD BE THE FIGURE USED IN THE
FORMULA, ONE REFLECTING THE FACT OF LATER RENEGOTIATION, BUT NOT
REFLECTING THE 1946 LOSS CARRY-BACK.  APPLYING THE FORMULA ON THE BASIS
OF THE LARGER EXCESS PROFITS FIGURE, THERE IS NOTHING TO SUBTRACT FROM
THE 1946 LOSS, AND THE FULL AMOUNT OF THIS LOSS IS THEREFORE AVAILABLE
TO OFFSET 1945 NET INCOME AND BRING ABOUT A FURTHER REFUND OF TAXES FOR
THAT YEAR.  BUT THE FULL AMOUNT OF THE 1946 LOSS HAS ALREADY BEEN
APPLIED IN 1944 TO OFFSET THE 1944 INCOME AND TO BRING ABOUT A REFUND
FOR THAT YEAR.  THUS THE COURT'S DECISION PERMITS THE LOSS IN 1946 TO
OFFSET TWICE AS MUCH INCOME IN 1944 AND 1945. 

IF, ON THE OTHER HAND, THE 1944 EXCESS PROFITS TAX FIGURE IS ADJUSTED
TO REFLECT THE REDUCTION IN THE TAX OCCASIONED BY RENEGOTIATION AND THE
1946 CARRY-BACK TO 1944, THE FORMULA WILL NOT PERMIT SUCH DOUBLE USE OF
THE 1946 LOSS; THE DIFFERENCE BETWEEN THE 1944 NET INCOME FIGURE
($584,866.81) AND THE ADJUSTED 1944 EXCESS PROFITS TAX ($280,540.33) IS
GREATER THAN THE AMOUNT OF THE 1946 LOSS ($164,326.38). 

EITHER OF THESE POSITIONS CAN BE SUPPORTED BY ARGUMENTS BASED SOLELY
UPON THE LITERAL LANGUAGE OF THE STATUTE.  HERE WE ARE NOT COMPELLED IN
OUR CHOICE BY AUSTERE REGARD FOR WHAT CONGRESS HAS WRITTEN, UNDISTORTED
OR UNMITIGATED BY JUDICIAL REWRITING, NO MATTER WHAT THE CONSEQUENCES
IN A SPECIFIC CASE.  WHERE THE TAXING MEASURE IS CLEAR, OF COURSE,
THERE IS NO PLACE FOR LOOSE CONCEPTIONS ABOUT THE "EQUITY OF THE
STATUTE."  REVENUE LAWS ARE NOTORIOUSLY NOT EXPRESSIONS OF AN ORDERED
SYSTEM OF REASON AND FAIRNESS.  THERE HAS PROBABLY NEVER BEEN A REVENUE
STATUTE WHICH, BY DESIGN OR OVERSIGHT, HAS NOT FAVORED SOME GROUPS AND
LAID THE BASIS FOR A CLAIM OF UNFAIRNESS TO OTHERS SIMILARLY SITUATED. 
BUT WHILE ONE SHOULD SAIL CLOSE TO THE SHORE OF LITERALNESS IN DEALING
WITH THE TECHNICAL PROBLEMS WHICH ARE THE SUBJECT MATTER OF REVENUE
LAWS, LITERALNESS OF MEANING AFFIXED MERELY TO A PARTICULAR WORD OR
PHRASE MAY ITSELF DISTORT WHAT THE PROVISION AS AN ENTIRETY AND IN
CONTEXT CONVEYS AND THEREFORE COMMANDS.  AND WHERE AMBIGUOUS LANGUAGE
IS USED, THE MODE OF CONSTRUCTION APPLIED IN OLYMPIC RADIO, SUPRA,
SHOULD NOT BE IGNORED - THAT DEDUCTIONS AND CREDITS ARE MATTERS OF
LEGISLATIVE GRACE AND THE TAXPAYER MUST BRING HIMSELF CLEARLY WITHIN
THE RELIEF HE CLAIMS. 

NOR DOES THE DECISION IN OLYMPIC RADIO SHED ANY LIGHT ON OUR PRESENT
PROBLEM.  IN THAT CASE WE MERELY DECIDED THAT AN ACCRUAL TAXPAYER MUST
BE CONSISTENT IN HIS CHOICE OF TAX ACCOUNTING SYSTEMS - THAT IN
CALCULATING HIS LOSS FOR A GIVEN YEAR HE MUST USE FIGURES RELEVANT TO
THAT YEAR'S OPERATIONS, ACCRUED FIGURES, RATHER THAN FIGURES BASED ON
CASH PAYMENTS RELATED TO TRANSACTIONS IN A DIFFERENT YEAR.  WE HAD NO
OCCASION TO DETERMINE IN THAT CASE WHETHER THE ACCRUED FIGURE TO BE
USED WAS TO BE THE FIGURE ORIGINALLY REPORTED OR THE FIGURE REFLECTING
LATER ADJUSTMENTS TO THE ORIGINAL FIGURE.  THAT IS THE ISSUE HERE. 

THE CRUCIAL PHRASES IN DETERMINING WHETHER THE ORIGINAL OR THE
ADJUSTED FIGURE FOR 1944 EXCESS PROFITS TAX IS TO BE USED ARE:  (1)
"TAX IMPOSED BY SUBCHAPTER E OF CHAPTER 2," AND (2) "PAID OR ACCRUED
WITHIN THE TAXABLE YEAR."  WE AGREE THAT THE FIRST PHRASE SERVES MERELY
TO IDENTIFY THE NATURE OF THE TAX REFERRED TO AND VOUCHSAFES NOTHING ON
THE QUESTION IN ISSUE.  WE NEED NOT ADD TO WHAT THE COURT HAS SAID ON
THIS.  WE DO NOT AGREE, HOWEVER, THAT THE SECOND PHRASE COMPELS THE
READING WHICH THE COURT GIVES IT. 

FOR PURPOSES OF PAYMENT OF CURRENT ANNUAL TAXES, THE PHRASE "ACCRUED
WITHIN THE TAXABLE YEAR" HAS COME TO MEAN THE FIGURE ARRIVED AT BY
TAKING INTO ACCOUNT ONLY KNOWLEDGE AVAILABLE AT THE END OF THE TAXABLE
YEAR.  THIS REFLECTS THE FACT THAT OUR TAX SYSTEM IS OPERATED ON AN
ANNUAL BASIS AND THAT IT WOULD BE DIFFICULT TO PERMIT CONTINUAL
REOPENING AND READJUSTMENT OF OLD RETURNS IN LIGHT OF LATER
DEVELOPMENTS.  SEE BURNET V. SANFORD & BROOKS CO., 282 U.S. 359;
SECURITY FLOUR MILLS CO. V. COMMISSIONER, 321 U.S. 281, 286; DIXIE PINE
PRODUCTS CO. V. COMMISSIONER, 320 U.S. 516, 519.  WERE WE PRESENTED
WITH A QUESTION WHETHER THE TAXPAYER OWED THE GOVERNMENT INTEREST ON A
DEFICIENCY, EXISTING AT THE TIME HIS RETURN WAS FILED, IN PAYMENT OF
"ACCRUED" TAXES, WE WOULD AGREE THAT THE TAX "ACCRUED" WAS THE TAX
CALCULATED ON THE BASIS OF THE SITUATION AT THE END OF THE TAXABLE YEAR
WITHOUT REGARD TO ANY LATER ADJUSTMENT IN THE AMOUNT OF TAX DUE WHICH
ELIMINATED THE DEFICIENCY.  CF.  MANNING V. SEELEY TUBE & BOX CO., 338
U.S. 561; UNITED STATES V. KOPPERS CO., 348 U.S. 254. 

BUT IF "ACCRUED" HAS THIS MEANING GENERALLY IN OUR TAXING SYSTEM, IT
HAS ACQUIRED THIS SENSE NOT BECAUSE IT INEVITABLY, LEXICOGRAPHICALLY
SPEAKING, HAS THIS MEANING, BUT BECAUSE OF THE INFERENCES WHICH HAVE
GROWN UP ABOUT IT THROUGH USE IN THE CONTEXT OF ANNUAL PAYMENT OF
TAXES.  IN SHORT, USAGE, THE ULTIMATE GLOSSATOR, HAS MADE IT A TERM OF
ART IN THIS CONTEXT. 

IN THE PRESENT CASE, WE DEAL WITH SECTIONS OF THE CODE WHICH EXPRESS
EXACTLY THE OPPOSITE PHILOSOPHY FROM THAT WHICH GAVE RISE TO THIS USE
OF "ACCRUED" AS A TECHNICAL TERM LOOKING ONLY TO EVENTS OCCURRING
WITHIN A SINGLE YEAR.  WE DEAL WITH SECTIONS WHICH DIRECT RE
EXAMINATION OF RETURNS FOR PAST YEARS IN AN EFFORT TO AMELIORATE THE
SHORT-SIGHTEDNESS OF THE ANNUAL SYSTEM WHICH FOSTERED A RESTRICTIVE,
CLOSED MEANING OF "ACCRUED."  THE VERY PURPOSE AND DIRECTION OF THESE
SUBSEQUENT FACTS.  SURELY IN THIS CONTEXT THERE IS NO RATIONAL REASON
FOR REFUSING TO RECOGNIZE THE STATE OF AFFAIRS AS UNFOLDED IN THE YEARS
WHICH SEC. 122 DIRECTS YOU TO RE-EXAMINE - THE CURRENT YEAR AND TWO
PRECEDING YEARS.  WHERE THE SUBSEQUENT EVENTS ARE RECOGNIZED BY THE
CODE AS PROPER OCCASIONS FOR ADJUSTING OLD RETURNS, THE ARGUMENTS OF
ADMINISTRATIVE CONVENIENCE WHICH UNDERLIE CLOSING THE TAX AFFAIRS OF
THE YEAR WITHIN THE TAXING YEAR ARE EMPTY BECAUSE THEY HAVE NOTHING TO
WHICH THEY CAN APPLY. 

CONCEPT WHICH TAXED INCOME WHICH REALLY WAS NOT THERE.  SURELY WE
SHOULD NOT CONCLUDE THAT CONGRESS INTENDED TO GO TO THE OTHER EXTREME
AND REFUND TAXES ON THE BASIS OF LOSSES WHICH ARE REALLY NOT THERE. 
THERE IS CONFIRMATION WITHIN SEC. 122 ITSELF WHICH SHOULD PRECLUDE SUCH
RESULT.  IT LIES IN SUBSECTION 122(B)(1)(B), (FN2) WHICH ALONE
JUSTIFIES THE ASSUMPTION, MADE BY THE COURT AND BOTH PARTIES, THAT THE
FIGURE FOR 1944 NET INCOME TO BE USED IN THE FORMULA IS THE LOWER
FIGURE REFLECTING THE READJUSTMENT FOR RENEGOTIATION ($584,866.81)
RATHER THAN THE ONE ORIGINALLY REPORTED ($827,852.99).  ALL THE
ARGUMENT USED TO DEMONSTRATE THAT THE 1944 EXCESS PROFITS FIGURE SHOULD
BE THE UNADJUSTED FIGURE PROVES WITH EQUAL FORCE THAT THE 1944 NET
INCOME FIGURE SHOULD BE THE UNADJUSTED FIGURE.  FOR "NET INCOME" FOR
ANY GIVEN YEAR IS, GENERALLY SPEAKING, ARRIVED AT BY AN ACCRUAL
TAXPAYER BY DETERMINING ACCRUED GROSS INCOME AND ACCRUED DEDUCTIONS FOR
THAT YEAR.  SECS. 21(A), 22, 23, 41, 42(A), 43, 48(C).  INHERENT,
THEREFORE, IN SEC. 122'S PHRASE "NET INCOME" IS THE SAME CONCEPT OF
"ACCRUED" AS IS EXPLICITLY USED IN THAT SECTION'S REFERENCE TO THE
EXCESS PROFITS TAX.  IF "ACCRUED" DOES NOT PERMIT TAKING INTO ACCOUNT
LATER ADJUSTMENTS TO THE TAX, IT DOES NOT PERMIT REFLECTION OF
ADJUSTMENTS TO NET INCOME. 

BUT SUBSECTION 122(B)(1)(B) SHOWS CLEARLY THAT CONGRESS ASSUMED THAT
THE FORMULA WE HAVE BEEN DISCUSSING WOULD REFLECT SUBSEQUENT
ADJUSTMENTS TO 1944 NET INCOME.  THAT SUBSECTION STATES IN EFFECT THAT
THE FIGURE FOR NET INCOME OF 1944 USED IN THE FORMULA IS NOT TO REFLECT
THE FACT THAT THE 1946 NET OPERATING LOSS HAS ALREADY BEEN CARRIED BACK
AND APPLIED TO REDUCE 1944 NET INCOME.  IF CONGRESS THOUGHT IT
NECESSARY SPECIFICALLY TO DIRECT THAT A CERTAIN ADJUSTMENT TO 1944 NET
INCOME ARISING FROM FACTS DEVELOPED IN LATER YEARS SHOULD NOT BE MADE,
THIS CAN ONLY BE BECAUSE CONGRESS ASSUMED THAT IN APPLYING THE FORMULA
THE FIGURES USED WOULD REFLECT SUCH ADJUSTMENTS.  WE RECOGNIZE THIS
ASSUMPTION BY TAKING AS THE 1944 NET INCOME FIGURE THE ORIGINALLY
REPORTED FIGURE LESS THE AMOUNT BY WHICH IT WAS REDUCED AS A
CONSEQUENCE OF RENEGOTIATION.  THERE IS NO BASIS FOR DIFFERENTIATION,
IN RECOGNIZING THIS ASSUMPTION, BETWEEN NET INCOME AND EXCESS PROFITS
TAX.    I WOULD AFFIRM. 

FN1  FOR CONVENIENCE OF REFERENCE AND BECAUSE IN MOST INSTANCES IT
MAKES NO DIFFERENCE IN THE ULTIMATE RESULT, THE FIGURES HERE USED FOR
PETITIONER'S 1944 NET INCOME AND EXCESS PROFITS TAX ARE THOSE WHICH
HAVE BEEN USED THROUGHOUT THIS LITIGATION IN THE BRIEFS, ARGUMENTS AND
OPINIONS.  THE FACT OF THE MATTER IS THAT THERE ARE IN THE RECORD THREE
CONFLICTING SETS OF FIGURES WHICH PURPORT TO REPRESENT PETITIONER'S NET
INCOME AND EXCESS PROFITS TAX IN 1944.  IN ONE CONTINGENCY, TO BE NOTED
BELOW, IT BECOMES IMPORTANT TO DISTINGUISH BETWEEN THESE FIGURES. 
PETITIONER FILED TWO RETURNS FOR 1944, AN ORIGINAL RETURN AND AN
AMENDED RETURN.  THE COMMISSIONER OBJECTED TO SEVERAL DEDUCTIONS WHICH
WERE CLAIMED ON THE AMENDED RETURN AND ALSO PERMITTED SEVERAL
DEDUCTIONS NOT CLAIMED BY PETITIONER ON THE AMENDED RETURN, THUS
ARRIVING AT A CORRECTED RETURN FOR 1944 SUBSTANTIALLY DIFFERENT FROM
EITHER THE ORIGINAL OR AMENDED RETURN.  THROUGHOUT THE LITIGATION THE
FIGURE CITED FOR PETITIONER'S 1944 NET INCOME, UNADJUSTED TO REFLECT
SUBSEQUENT EVENTS, HAS BEEN $827,852.99.  THIS IN FACT THE FIGURE WHICH
PETITIONER REPORTED ON ITS ORIGINAL RETURN AS ITS EXCESS PROFITS NET
INCOME.  THE NET INCOME FIGURE ON THE ORIGINAL RETURN WAS $817,680.90. 
PETITIONER'S AMENDED RETURN SHOWED A NET INCOME FOR 1944 OF
$747,236.60, WHILE CORRECTION OF PETITIONER'S AMENDED RETURN TO REFLECT
ERRORS FOUND BY THE COMMISSIONER RESULTED IN A FIGURE OF $982,836.81. 

SIMILARLY THE ACCRUED EXCESS PROFITS TAX FOR 1944, UNADJUSTED TO
REFLECT SUBSEQUENT EVENTS, HAS BEEN GIVEN AS $625,561.59.  THIS IS THE
RAW FIGURE WHICH PETITIONER'S ORIGINAL RETURN SHOWED AS HIS TAX BEFORE
CERTAIN CREDITS AND ADJUSTMENTS WHICH HE CLAIMED.  THAT RETURN SHOWED
AS THE EXCESS PROFITS TAX DUE FOR 1944, $605,561.59.  THE AMENDED
RETURN SHOWED $549,206.15 AS THE TAX DUE.  BECAUSE OF THE FACT THAT AT
THE TIME THE COMMISSIONER CORRECTED THE ERRORS IN PETITIONER'S AMENDED
RETURN HE WAS AWARE OF AND TOOK COGNIZANCE OF THE LATER RENEGOTIATION
AND 1946 CARRY-BACK, HE DID NOT ARRIVE AT WHAT WOULD HAVE BEEN THE
CORRECT FIGURE FOR THE TAX WHICH PETITIONER SHOULD HAVE ORIGINALLY
REPORTED AS DUE FOR 1944 ON THE BASIS OF FACTS KNOWN AT THE TIME THE
1944 RETURN WAS FILED.  THE FIGURE WOULD, HOWEVER, APPROXIMATE
$770,000.00. 

WHEN, HOWEVER, THE FIGURES FOR EITHER THE 1944 NET INCOME ADJUSTED TO
REFLECT RENEGOTIATION, OR THE 1944 EXCESS PROFITS TAX AFTER ADJUSTMENT
TO REFLECT RENEGOTIATION AND LOSS CARRY-BACK, HAVE BEEN GIVEN, THEY ARE
THE FIGURES ARRIVED AT BY THE COMMISSIONER ($584,866.81 AND $280,540.33
RESPECTIVELY).  SINCE THESE FIGURES ARE BASED NOT ONLY UPON A DIFFERENT
RETURN BY PETITIONER, BUT REFLECT SUBSTANTIAL CORRECTIONS BY THE
COMMISSIONER OF THE TAXPAYER'S ERRORS, THEY ARE NOT COMPARABLE TO THE
FIGURES WHICH ARE QUOTED FOR UNADJUSTED 1944 NET INCOME OR EXCESS
PROFITS TAX.  FORTUNATELY FOR MOST PURPOSES USE OF THESE FIGURES DOES
NOT AFFECT THE CONCLUSION REACHED ON THE ONLY QUESTION INVOLVED HERE -
WHETHER ANY LOSS IS LEFT TO CARRY BACK TO 1945. 

THERE IS ONE POINT AT WHICH USE OF COMPARABLE FIGURES DOES BECOME
IMPORTANT.  IF THE FIGURES WHICH HAVE BEEN IN GENERAL USE WERE
COMPARABLE, THEN IN OUR DISAGREEMENT IT WOULD BE NECESSARY ONLY TO
CONCLUDE THAT THE UNADJUSTED EXCESS PROFITS TAX FIGURE FOR 1944
($625,561.59) SHOULD BE REDUCED BY THE AMOUNT OF TAX REFUNDED BECAUSE
OF THE RENEGOTIATION ($318,577.67).  UPON APPLICATION OF THE FORMULA,
SUBTRACTION OF THE RESULTANT EXCESS PROFITS TAX FIGURE ($306,983.92)
FROM 1944 NET INCOME ADJUSTED TO REFLECT RENEGOTIATION ($584,866.81)
WOULD GIVE A FIGURE IN EXCESS OF THE 1946 LOSS CARRY-BACK AND THUS
PRECLUDE ANY CARRY-BACK TO 1945.  BUT IF COMPARABLE FIGURES ARE USED IN
APPLYING THE FORMULA - IT DOES NOT MATTER WHICH OF THE THREE SETS OF
FIGURES IS USED - THE REDUCTION IN 1944 EXCESS PROFITS TAX DUE MERELY
TO RENEGOTIATION DOES NOT PRECLUDE A CARRY-BACK TO 1945 AND THUS IT IS
NECESSARY TO CONCLUDE THAT THE EXCESS PROFITS TAX FIGURE FOR 1944 MUST
ALSO BE REDUCED TO REFLECT THE REFUND RESULTING FROM THE CARRY-BACK TO
1944 (APPROXIMATELY $150,000).  SO REDUCED, THERE IS NO CARRY-BACK TO
1945. 

FN2  THIS SUBSECTION PROVIDES THAT IN APPLYING THE FORMULA, THE
FIGURE FOR NET INCOME OF 1944 IS TO BE "COMPUTED  ...  (B) BY
DETERMINING THE NET OPERATING LOSS DEDUCTION FOR SUCH SECOND PRECEDING
TAXABLE YEAR (1944) WITHOUT REGARD TO SUCH (THE 1946) NET OPERATING
LOSS." 
..END :























MANEJA V. WAIALUA AGRICULTURAL CO., LTD. 349 U.S. 254 


NO. 357.  ARGUED MARCH 30, 1955 - DECIDED MAY 23, 1955 - 216 F.2D 466,
REVERSED. 


THE WAIALUA AGRICULTURAL COMPANY IS A CORPORATION ENGAGED IN THE
GROWING, HARVESTING AND PROCESSING OF SUGAR CANE AT ITS PLANTATION IN
THE TERRITORY OF HAWAII.  IN THE FEDERAL DISTRICT COURT, IT SOUGHT A
DECLARATORY JUDGMENT THAT ITS OPERATIONS ARE EXEMPT FROM THE OVERTIME
PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938.  BY A COUNTERCLAIM
UNDER SEC. 16(B) OF THE ACT, CERTAIN OF ITS EMPLOYEES SOUGHT TO RECOVER
UNPAID OVERTIME COMPENSATION.  THE ACTION RELATED ONLY TO WORK
PERFORMED BETWEEN NOV. 20, 1946, AND SEPT. 14, 1947.  HELD: 

1.  SINCE WAIALUA EXPORTS VIRTUALLY ITS ENTIRE OUTPUT FOR SALE
THROUGHOUT THE UNITED STATES, ITS OPERATIONS ARE SUBJECT TO REGULATION
BY CONGRESS THROUGH EXERCISE OF THE COMMERCE POWER.  WICKARD V.
FILBURN, 317 U.S. 111.  PP. 258-259. 

2.  THE PROVISION OF THE FAIR LABOR STANDARDS ACT EXEMPTING
AGRICULTURE IS COTERMINOUS WITH THE SUM OF THOSE ACTIVITIES NECESSARY
IN THE CULTIVATION OF CROPS, THEIR HARVESTING, AND THEIR "PREPARATION
FOR MARKET, DELIVERY TO STORAGE OR TO MARKET OR TO CARRIERS FOR
TRANSPORTATION TO MARKET."  PP. 259-260. 

3.  WAIALUA'S RAILROAD WORKERS, WHO NOT ONLY HAUL CANE FROM THE
FIELDS TO THE PROCESSING PLANT BUT ALSO TRANSPORT FARMING IMPLEMENTS
AND FIELD LABORERS ON A NARROW-GAUGE RAILWAY EXTENDING THROUGHOUT THE
PLANTATION, ARE WITHIN THE AGRICULTURE EXEMPTION OF THE ACT.  PP. 260
263. 

(A)  THE ACT DRAWS NO DISTINCTION BETWEEN LARGE AND SMALL FARMS OR
BETWEEN MECHANIZED AND NONMECHANIZED AGRICULTURE.  P. 261. 

(B)  THE AGRICULTURE EXEMPTION IS NOT FORFEITED MERELY BECAUSE
WAIALUA USES A METHOD ORDINARILY NOT ASSOCIATED WITH AGRICULTURE - A
RAILROAD - TO TRANSPORT THE CANE FROM THE FIELDS TO THE MILL.  P. 261. 

(C)  CONGRESS DID NOT INTEND TO DEPRIVE FARMERS HAVING THEIR OWN
MILLS OF THE EXEMPTION IT AFFORDED FARMERS WHO DO NOT.  P. 261. 

(D)  THE TRANSPORTATION OF FARM IMPLEMENTS, SUPPLIES AND FIELD
WORKERS TO AND FROM THE FIELDS IS A NECESSARY PART OF THE AGRICULTURAL
ENTERPRISE AND CLEARLY WITHIN THE EXEMPTION.  P. 262. 

(E)  UPON THE FACTS HERE PRESENTED, THE ADMINISTRATIVE PRACTICE ALSO
REQUIRES THAT THE RAILROAD EMPLOYEES BE CLASSIFIED AS WITHIN THE
AGRICULTURE EXEMPTION.  PP. 262-263. 

4.  EMPLOYEES WHO REPAIR THE MECHANICAL IMPLEMENTS USED IN FARMING -
TRACTORS, CANE LOADERS, CANE CARS, ETC. - ARE WITHIN THE AGRICULTURE
EXEMPTION.  PP. 263-264. 

5.  EMPLOYEES WORKING IN WAIALUA'S SUGAR-PROCESSING PLANT ARE NOT
WITHIN THE AGRICULTURE EXEMPTION OF THE ACT.  PP. 264-270. 

6.  THE EXEMPTION PRESCRIBED BY SEC. 7(C) FROM THE OVERTIME
PROVISIONS OF THE ACT FOR EMPLOYERS "ENGAGED IN THE  ...  PROCESSING OF
...  SUGARCANE  ...  INTO SUGAR" APPLIES TO EMPLOYEES OF WAIALUA
DURING THE PROCESSING SEASON WHILE MAKING EMERGENCY REPAIRS IN THE
MILL, CLEANING THE EQUIPMENT DURING THE WEEK-END SHUTDOWN, AND
PERFORMING OTHER TASKS CLOSELY AND INTIMATELY CONNECTED WITH THE
PROCESSING OPERATION; IT ALSO APPLIES TO EMPLOYEES DOING REPAIR WORK ON
THE MILL EQUIPMENT IN WAIALUA'S SHOPS IN THE MILL AREA; BUT IT DOES NOT
APPLY TO EMPLOYEES DOING PERMANENT REPAIRS, OVERHAUL AND RECONDITIONING
DURING THE THREE-MONTH OFF-SEASON.  PP. 270-271. 

7.  EMPLOYEES ENGAGED IN THE MAINTENANCE OF WAIALUA VILLAGE AND IN
THE REPAIR OF THE COMPANY'S DWELLING HOUSES RENTED TO EMPLOYEES ARE NOT
WITHIN THE COVERAGE OF THE ACT.  PP. 271-272. 

8.  IN VIEW OF THE INSUFFICIENCY OF RELEVANT DATA IN THE RECORD, THE
RIGHTS OF THE REMAINING EMPLOYEES INVOLVED IN THIS LITIGATION
(EMPLOYEES IN THE LABORATORY, THE CEMENT PRODUCTS PLANT AND THE POWER
PLANT) ARE NOT HERE DECIDED BUT MAY BE DECIDED BY THE TRIAL COURT ON
REMAND; AND THAT COURT MAY ALSO MAKE ANY NECESSARY REASSESSMENT IN
OVERTIME COMPENSATION DUE EMPLOYEES.  P. 272. 

MANEJA ET AL. V. WAIALUA AGRICULTURAL CO., LTD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT.* 

*TOGETHER WITH NO. 358, WAIALUA AGRICULTURAL CO., LTD. V. MANEJA ET
AL., ALSO ON CERTIORARI TO THE SAME COURT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES, PRIMARILY, THE COVERAGE OF THE AGRICULTURE
EXEMPTION (FN1) OF THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060,
AS AMENDED, 29 U.S.C. SEC. 201 ET SEQ. THE PETITIONERS ARE 31 EMPLOYEES
OF RESPONDENT CORPORATION, (FN2) WHICH IS ENGAGED IN THE GROWING,
HARVESTING AND PROCESSING OF SUGAR CANE AT ITS PLANTATION IN THE
TERRITORY OF HAWAII.  RESPONDENT SEEKS A DECLARATORY JUDGMENT THAT ITS
OPERATIONS ARE EXEMPT FROM THE OVERTIME PROVISIONS OF THE ACT, WHILE
THE PETITIONERS, THROUGH A COUNTERCLAIM UNDER SEC. 16(B) OF THE ACT,
SEEK TO RECOVER UNPAID OVERTIME COMPENSATION.  THE ACTION PERTAINS ONLY
TO WORK PERFORMED BETWEEN NOVEMBER 20, 1946, AND SEPTEMBER 14, 1947. 

WAIALUA OWNS AND OPERATES WHAT MIGHT BE CALLED THE AGRICULTURAL
ANALOGUE OF THE MODERN INDUSTRIAL ASSEMBLY LINE.  ON ITS PLANTATION,
CONSISTING OF SOME TEN THOUSAND ACRES OF LAND, IT CULTIVATES SUGAR CANE
WHICH IT PROCESSES INTO RAW SUGAR AND MOLASSES.  IT UTILIZES THE YEAR
ROUND GROWING SEASON TO PRODUCE A STEADY SUPPLY OF CANE AND EMPLOYS IN
ITS OPERATIONS OVER A THOUSAND PERSONS, MANY AT SPECIALIZED TASKS. 
SOME MOVE FROM FIELD TO FIELD PREPARING THE SOIL, FERTILIZING, PLANTING
SEED OR CULTIVATING.  OTHERS ATTEND TO THE IRRIGATION OF THE FIELDS. 
AS THE CANE CROP MATURES, CREWS OF EMPLOYEES MOVE IN WITH MECHANICAL
CANE HARVESTERS THAT CUT AND THROW THE CANE INTO RAILROAD CARS.  THE
CANE IS THEN TAKEN OVER PORTABLE TRACKS LAID INTO THE GROWING FIELDS TO
WAIALUA'S MAINLINE RAILROAD, WHICH RUNS THROUGHOUT THE PLANTATION, AND
FROM THERE SKILLED RAILROAD WORKERS TRANSPORT THE CANE TO THE
PROCESSING PLANT.  FRESHLY CUT SUGAR CANE IS EXTREMELY PERISHABLE AND
MUST BE PROCESSED WITHIN A FEW DAYS OF HARVESTING OR SERIOUS SPOILAGE
WILL RESULT.  THE PROCESSING PLANT IS TYPICAL OF SUCH MODERN INDUSTRIAL
FACILITIES AND IS MANNED BY EMPLOYEES SPECIALLY TRAINED IN ITS
OPERATION.  IT HAS ALL OF THE EQUIPMENT NEEDED TO RECEIVE THE FRESHLY
CUT CANE FROM THE RAILROAD CARS AND PROCESS IT INTO RAW SUGAR AND
MOLASSES.  ADJACENT TO THE PROCESSING PLANT ARE WAREHOUSES WHERE THE
RAW SUGAR AND MOLASSES ARE STORED PREPARATORY TO SHIPMENT TO THE UNITED
STATES. 

A TREMENDOUS VARIETY OF WORK MUST BE DONE TO KEEP THIS ENTERPRISE
GOING, AND WAIALUA EMPLOYS PERSONS VERSED IN EACH OPERATION.  IN
ADDITION TO THOSE EMPLOYED AS INDICATED ABOVE, ABOUT A HUNDRED MORE
WORK IN REPAIR SHOPS AS MECHANICS, ELECTRICIANS, WELDERS, CARPENTERS,
PLUMBERS AND PAINTERS.  THEY KEEP WAIALUA'S HIGHLY MECHANIZED
ENTERPRISE OPERATING, MAKING NOT ONLY EMERGENCY REPAIRS BUT COMPLETE
OVERHAULS OF THE RAILROAD, MILLING, HARVESTING AND OTHER EQUIPMENT. 
WAIALUA ALSO MAINTAINS A PLANT FOR THE MANUFACTURE OF CONCRETE PRODUCTS
(PAVING BLOCKS AND FLUMES FOR IRRIGATION DITCHES), AN ELECTRIC
GENERATING PLANT IN THE SAME BUILDING AS THE MILL, AND A LABORATORY FOR
THE TESTING OF ITS SOIL, WATER, CANE AND RAW SUGAR. 

IN ADDITION TO ALL THIS, WAIALUA OWNS A VILLAGE WHERE THE GREAT
MAJORITY OF ITS EMPLOYEES LIVE.  KNOW AS WAIALUA VILLAGE, IT WAS
ORIGINALLY BUILT WHEN HOUSING FOR THE EMPLOYEES WAS INADEQUATE, AND IS
LOCATED ON PLANTATION PROPERTY WITHIN THE LIMITS OF THE CITY OF
HONOLULU.  WITHIN THE TOWN ARE SEVERAL HUNDRED HOUSES AND BUSINESS
ESTABLISHMENTS, ALL OCCUPIED ON A RENTAL BASIS, TOGETHER WITH
RECREATIONAL AREAS AND OTHER TOWN FACILITIES.  THE RESPONDENT FURNISHES
ALL THE MAINTENANCE WORK FOR ITS VILLAGE, EMPLOYING STREET CLEANERS,
ROAD GRADERS AND JANITORS. 

PROCEEDINGS BELOW. 

THE TRIAL JUDGE FOUND THAT ALL THE EMPLOYEES WERE OUTSIDE OF THE
AGRICULTURE EXEMPTION SAVE THOSE ENGAGED DIRECTLY IN AGRICULTURAL WORK
IN THE FIELDS, IN LOADING THE FRESHLY CUT CANE INTO CANE CARS, AND IN
HAULING THE LOADED CARS TO THE MAINLINE RAILROAD.  THOSE EMPLOYEES
WORKING IN THE SUGAR MILL WERE FOUND TO BE UNDER THE SPECIAL PROCESSING
PROVISIONS OF SEC. 7(C) OF THE ACT.  AS TO THE OTHER EMPLOYEES, THE
COURT ENTERED JUDGMENT FOR OVERTIME AS WELL AS LIQUIDATED DAMAGES AND
ATTORNEY'S FEES.  97 F. SUPP. 198.  THE COURT OF APPEALS REVERSED,
BELIEVING THAT "THE ENTIRE CAUSE WAS TAINTED BY APPARENT COLLUSION"
BECAUSE STIPULATIONS COVERED THE COMMERCE FEATURES OF THE CASE.  IT
THOUGHT THAT "AGRICULTURE IS NOT COMMERCE, INTERSTATE OR FOREIGN," AND
THAT "FEDERAL REGULATION OF AGRICULTURE INVADES THE RESERVED RIGHTS OF
THE STATES.  UNITED STATES V. BUTLER, 297 U.S. 1  ...  . BUT CF.,
WICKARD V. FILBURN, 317 U.S. 111."  IT INDICATED, FURTHER, THAT EVEN IF
THE SUIT WERE NOT COLLUSIVE, THE WORKERS WOULD NOT BE ENTITLED TO THE
RELIEF CLAIMED BECAUSE ALL OF THEM CAME WITHIN THE AGRICULTURE
EXEMPTION OF THE ACT.  216 F.2D 466 (1954).  DESPITE THIS REASONING,
THE COURT OF APPEALS REFUSED TO DISMISS PETITIONERS' COUNTERCLAIM BUT
REMANDED IT TO THE TRIAL COURT "FOR PROCEEDINGS IN ACCORDANCE WITH THIS
OPINION."  WE GRANTED CERTIORARI, BELIEVING THAT THE PROPER
ADMINISTRATION OF THE ACT REQUIRES A RESOLUTION OF THE QUESTIONS
PRESENTED.  348 U.S. 870. 

WE ARE IN FULL AGREEMENT WITH THE PARTIES THAT THE FIRST GROUND
RELIED UPON BY THE COURT OF APPEALS IS INCORRECT.  IT IS NOT NECESSARY
NOW TO CONSIDER THE VITALITY OF UNITED STATES V. BUTLER, SUPRA, FOR
THAT DECISION EXPRESSLY RESERVED THE QUESTION OF WHETHER THE REGULATION
OF AGRICULTURE WAS WITHIN THE COMMERCE POWER, (FN3) AND WICKARD V.
FILBURN, SUPRA, DECIDED THE QUESTION IN FAVOR OF THE CONGRESSIONAL
POWER.  IN VIEW OF THE FACT THAT WAIALUA EXPORTS VIRTUALLY ITS ENTIRE
OUTPUT FOR SALE THROUGHOUT THE UNITED STATES, WE FIND OURSELVES UNABLE
TO SAY THAT THE STIPULATION WITH RESPECT TO THE POWER OF CONGRESS WAS
COLLUSIVE. 

THE SCOPE OF THE AGRICULTURE EXEMPTION. 

CONGRESS EXEMPTED AGRICULTURE FROM THE TERMS OF THE FLSA IN BROAD,
INCLUSIVE TERMS: 

SEC. 3.  "(F) 'AGRICULTURE' INCLUDES FARMING IN ALL ITS BRANCHES AND
AMONG OTHER THINGS INCLUDES THE CULTIVATION AND TILLAGE OF THE SOIL,
DAIRYING, THE PRODUCTION, CULTIVATION, GROWING, AND HARVESTING OF ANY
AGRICULTURAL OR HORTICULTURAL COMMODITIES (INCLUDING COMMODITIES
DEFINED AS AGRICULTURAL COMMODITIES IN SECTION 15(G) OF THE
AGRICULTURAL MARKETING ACT, AS AMENDED), THE RAISING OF LIVESTOCK,
BEES, FUR-BEARING ANIMALS, OR POULTRY, AND ANY PRACTICES (INCLUDING ANY
FORESTRY OR LUMBERING OPERATIONS) PERFORMED BY A FARMER OR ON A FARM AS
AN INCIDENT TO OR IN CONJUNCTION WITH SUCH FARMING OPERATIONS,
INCLUDING PREPARATION FOR MARKET, DELIVERY TO STORAGE OR TO MARKET OR
TO CARRIERS FOR TRANSPORTATION TO MARKET." 

THE EXEMPTION WAS MEANT TO EMBRACE THE WHOLE FIELD OF AGRICULTURE,
AND SPONSORS OF THE LEGISLATION SO STATED, 81 CONG. REC. 7648, 7658. 
THIS COURT ALSO HAS HAD OCCASION TO COMMENT ON ITS BROAD COVERAGE.  SEE
ADDISON V. HOLLY HILL CO., 322 U.S. 607, 612 (1944).  NEVERTHELESS, NO
MATTER HOW BROAD THE EXEMPTION, IT WAS MEANT TO APPLY ONLY TO
AGRICULTURE AND WE ARE LEFT WITH THE PROBLEM OF WHAT IS AND WHAT IS NOT
PROPERLY INCLUDED WITHIN THAT TERM. 

FROM THE VERY BEGINNING OF THE LEGISLATIVE CONSIDERATION OF THE ACT,
A COMPREHENSIVE EXEMPTION OF AGRICULTURAL LABOR WAS A PRIMARY
CONSIDERATION OF THE CONGRESS.  NEVERTHELESS, BEFORE ITS FINAL LANGUAGE
DEVELOPED, THE AGRICULTURE EXEMPTION RAN THE GAMUT OF EXTENSIVE DEBATES
AND AMENDMENTS, EACH OF THE LATTER INVARIABLY BROADENING ITS SCOPE. 
EXEMPTING "ANY PERSON EMPLOYED IN AGRICULTURE," ITS FIRST COMPREHENSIVE
DEFINITION DECLARED "FARMING IN ALL ITS BRANCHES" TO BE EXEMPT,
INCLUDING "ANY PRACTICES ORDINARILY PERFORMED BY A FARMER AS AN
INCIDENT TO SUCH FARMING OPERATIONS."  S. 2475, CALENDAR NO. 905, 75TH
CONG., 1ST SESS. 51.  ALTHOUGH THIS LANGUAGE WAS DESCRIBED BY THOSE IN
CHARGE OF THE BILL IN THE SENATE AS "PERHAPS, THE MOST COMPREHENSIVE
DEFINITION OF AGRICULTURE WHICH HAS BEEN INCLUDED IN ANY ONE
LEGISLATIVE PROPOSAL," 81 CONG. REC. 7648, ITS COVERAGE WAS BROADENED
UNTIL IT BECAME COTERMINOUS WITH THE SUM OF THOSE ACTIVITIES NECESSARY
IN THE CULTIVATION OF CROPS, THEIR HARVESTING, AND THEIR "PREPARATION
FOR MARKET, DELIVERY TO STORAGE OR TO MARKET OR TO CARRIERS FOR
TRANSPORTATION TO MARKET."  OUR MAIN PROBLEM IS TO DETERMINE WHICH
ACTIVITIES OF WAIALUA COME WITHIN THIS DEFINITION, THUS EXEMPTING THE
PERSONS SO EMPLOYED FROM THE PROVISIONS OF THE ACT. 

THE RAILROAD WORKERS. 

WAIALUA'S RAILROAD WORKERS NOT ONLY HAUL CANE FROM THE FIELDS TO THE
PROCESSING PLANT BUT ALSO TRANSPORT FARMING IMPLEMENTS AND FIELD
LABORERS ON THE NARROW-GAUGE RAILWAY EXTENDING THROUGHOUT THE
PLANTATION.  FOR NUMEROUS REASONS, WE FEEL THAT THESE EMPLOYEES FALL
WITHIN THE COMPREHENSIVE WORDING OF THE AGRICULTURE EXEMPTION.  NOWHERE
IN THE ACT WAS ANY ATTEMPT MADE TO DRAW A DISTINCTION BETWEEN LARGE AND
SMALL FARMS OR BETWEEN MECHANIZED AND NONMECHANIZED AGRICULTURE.  IN
FACT, THE VERY OPPOSITE APPEARS, SINCE CONGRESS IN 1949 SPECIFICALLY
REFUSED TO DRAW A DISTINCTION BETWEEN LARGE AND SMALL FARMS SIMILAR TO
THE DISTINCTIONS DRAWN IN THE SIZE OF NEWSPAPERS OR TELEPHONE
COMPANIES.  SEE H.R. REP. NO. 267, 81ST CONG., 1ST SESS., P. 24. 
COMPARE FLSA, AS AMENDED, SECS. 13(A)(8), 13(A)(11), 13(A)(15). 

IN VIEW OF THIS, WE CANNOT HOLD THAT MERELY BECAUSE WAIALUA USES A
METHOD ORDINARILY NOT ASSOCIATED WITH AGRICULTURE - A RAILROAD - TO
TRANSPORT THE CANE FROM THE FIELDS TO THE MILL, IT HAS FORFEITED ITS
AGRICULTURE EXEMPTION.  WHERE A FARMER THUS USES EXTRAORDINARY METHODS,
WE MUST LOOK TO THE FUNCTION PERFORMED.  CERTAINLY NO ONE WOULD ARGUE
THAT THE AGRICULTURE EXEMPTION DID NOT APPLY TO FARM LABORERS WHO TOOK
THE CANE TO THE PLANT IN WHEELBARROWS.  THERE IS NO REASON TO CONSTRUE
THE FLSA SO AS TO DISCOURAGE MODERNIZATION IN PERFORMING THIS SAME
FUNCTION. 

FURTHERMORE, HAD WAIALUA NOT OWNED A MILL, ITS TRANSPORTATION
ACTIVITIES FROM FIELD TO MILL WOULD COME SQUARELY WITHIN THE
AGRICULTURE EXEMPTIONS COVERING "DELIVERY TO STORAGE OR TO MARKET OR TO
CARRIERS FOR TRANSPORTATION TO MARKET."  WE DO NOT BELIEVE THE CONGRESS
INTENDED TO DEPRIVE FARMERS HAVING THEIR OWN MILLS OF THE EXEMPTION IT
AFFORDED FARMERS WHO DO NOT.  IN THE DEBATE ON THE AMENDMENT EXTENDING
EXEMPTION TO "DELIVERY TO MARKET," ITS SPONSOR MADE CLEAR THAT
AUXILIARY ACTIVITY OF THE KIND HERE INVOLVED WOULD BE INCLUDED WITHIN
THAT TERM.  81 CONG.  REC. 7888. 

SIMILARLY, THE EXEMPTION CLEARLY COVERS THE TRANSPORTATION OF FARM
IMPLEMENTS, SUPPLIES AND FIELD WORKERS TO AND FROM THE FIELDS.  BEING
PERFORMED "ON A FARM AS AN INCIDENT TO OR IN CONJUNCTION WITH SUCH
FARMING OPERATIONS," THIS ACTIVITY IS A NECESSARY PART OF THE
AGRICULTURAL ENTERPRISE. 

ALTHOUGH THE ORIGINAL ADMINISTRATIVE INTERPRETATION SQUARELY SUPPORTS
OUR CONCLUSION IN REGARD TO SUCH HAULING ACTIVITY, (FN4) IT IS INSISTED
THAT THE ADMINISTRATIVE PRACTICE HAS BEEN TO THE CONTRARY SINCE BOWIE
V. GONZALEZ, 117 F.2D 11 (1941).  WE HAVE EXAMINED THE PRESS RELEASE
RELIED ON AND FIND THAT IT STATED ONLY THAT THE EXEMPTION "DOES NOT
APPLY TO SUGAR MILL EMPLOYEES, EVEN IF THE ONLY CANE GROUND IN SUCH A
MILL IS CANE GROWN BY THE SUGAR MILL OWNER IN HIS OWN FIELDS," AND MADE
NO REFERENCE TO EMPLOYEES ENGAGED IN TRANSPORTING THE CANE TO THE
MILL.  (FN5)  SUBSEQUENT STATEMENTS BY THE ADMINISTRATOR MERELY MAKE
THE COVERAGE OF THIS ACTIVITY A QUESTION OF FACT TO BE DETERMINED ON AN
AD HOC BASIS.  (FN6)  WE SEE NO BASIS FOR THE ASSERTION, THEREFORE,
THAT THE ADMINISTRATIVE PRACTICE SINCE 1941 HAS BEEN TO EXCLUDE FROM
THE EXEMPTION THE TRANSPORTATION OF CANE FROM FIELD TO MILL.  MOREOVER,
BOWIE ITSELF ESTABLISHED NO SUCH RULE, SAVE WITH REGARD TO THE
TRANSPORTATION OF SUGAR CANE OF INDEPENDENT GROWERS.  THE JUDGMENT LEFT
ALL EMPLOYEES TRANSPORTING SUGAR CANE GROWN BY THE MILL COMPANY IN THE
EXEMPT STATUS.  IN THE SUBSEQUENT CASE OF CALAF V. GONZALEZ, 127 F.2D
934 (1942), THE SAME COURT OF APPEALS WARNED THAT A DIFFERENT PROBLEM
WOULD BE PRESENT IF THE HEART OF THE TRANSPORTATION SYSTEM AND THE
SITUS OF THE EMPLOYMNET OF WORKERS WERE LOCATED AT THE PLANTATION.  WE
DO NOT BELIEVE THAT EITHER BOWIE OR CALAF IS APPOSITE.  THE FACTUAL
SITUATION HERE IS THAT WAIALUA'S TRANSPORTATION SYSTEM IS ALL EITHER IN
OR CONTIGUOUS TO ITS FIELDS, SAVE THE NECESSARY TRACKAGE AT THE MILL TO
ACCOMMODATE CANE CARS ARRIVING FROM VARIOUS SECTIONS OF THE
PLANTATION.  THE RAILROAD IS USED EXCLUSIVELY FOR THE EFFECTUATION OF
THE AGRICULTURAL FUNCTION OF TRANSPORTING EXEMPT AGRICULTURAL WORKERS
TO THE FIELDS, TOGETHER WITH THEIR EQUIPMENT AND SUPPLIES, AND HAULING
FRESHLY CUT CANE TO THE PROCESSING PLANT.  WITHOUT IT OR SOME OTHER
"HAUL," THE LAND COULD NOT BE CULTIVATED AND THE CANE, AFTER HARVEST,
WOULD SPOIL IN THE FIELDS AND BE LOST.  WE BELIEVE THAT UNDER THE FACTS
HERE PRESENTED THE ADMINISTRATIVE PRACTICE ALSO REQUIRES THAT THE
RAILROAD EMPLOYEES BE CLASSIFIED AS WITHIN THE AGRICULTURE EXEMPTION. 

THE WORKERS EMPLOYED IN THE REPAIR SHOPS. 

BY A PARITY OF REASONING, THOSE EMPLOYEES WHO REPAIR THE MECHANICAL
IMPLEMENTS USED IN FARMING ARE ALSO INCLUDED WITHIN THE AGRICULTURE
EXEMPTION.  EVERY FARMER, BIG OR LITTLE, MUST KEEP HIS FARMING
EQUIPMENT IN PROPER REPAIR, AND THE FACT THAT WAIALUA'S SIZE HAS
PERMITTED IT TO ACHIEVE AN EXTRAORDINARY DEGREE OF SPECIALIZATION
SHOULD NOT DEPRIVE IT OF THIS EXEMPTION.  HERE, THE RELATIVELY SMALL
NUMBER OF EMPLOYEES ASSIGNED TO THE REPAIR ACTIVITIES - WORKING ONLY ON
WAIALUA'S MACHINERY AND EQUIPMENT - INDICATES THAT, FAR FROM BEING A
FARMER WHO CONDUCTS A REPAIR BUSINESS ON THE SIDE, WAIALUA IS MERELY
PERFORMING A SUBORDINATE AND NECESSARY TASK INCIDENT TO ITS
AGRICULTURAL OPERATIONS.  INDEED, THE VERY NECESSITY OF INTEGRATING
THESE TASKS WITH WAIALUA'S MAIN OPERATION - WITHOUT WHICH THE ENTIRE
FARMING OPERATION WOULD SOON BECOME HOPELESSLY STALLED - IS STRONG
REASON TO CONSIDER THE REPAIRMEN WITHIN THE EXEMPTION.  THIS REASONING,
OF COURSE, APPLIES ONLY TO THOSE EMPLOYEES ENGAGED IN THE REPAIR OF
EQUIPMENT USED IN PERFORMING AGRICULTURAL FUNCTIONS:  TRACTORS, CANE
LOADERS, CANE CARS, AND SO FORTH.  THE REPAIR WORK ON MILL EQUIPMENT IS
CONSIDERED UNDER THE PROCESSING EXEMPTION, INFRA. 

THE EMPLOYEES IN WAIALUA'S SUGAR PROCESSING PLANT. 

THE LEGISLATIVE HISTORY OF THE FLSA INDICATES THAT THE MILL EMPLOYEES
PRESENT A BORDERLINE CASE.  INDEED, THIS VERY QUESTION, I.E., WHETHER
THE GRINDING OF ONE'S OWN SUGAR CANE COMES WITHIN THE EXEMPTION, WAS
POSED AND LEFT UNRESOLVED IN THE DEBATES, 81 CONG. REC. 7657-7658.  THE
SPONSORS OF THE ACT MADE CLEAR, HOWEVER, THAT "A FARMER ERECTING ON HIS
FARM A FACTORY AND MANUFACTURING ANYTHING YOU PLEASE, WHETHER SOMETHING
HE GROWS OR NOT, WHO EMPLOYS MANY PEOPLE TO MANUFACTURE IT, AND THEN
SHIPS IT IN INTERSTATE COMMERCE  ...  WOULD NOT MAKE THE MANUFACTURING
...  A FARMING OPERATION."  81 CONG. REC. 7658.  FROM THIS AND FROM
DISCUSSIONS OF OTHER BORDERLINE CASES, IT IS CLEAR THAT WE MUST LOOK TO
ALL THE FACTS SURROUNDING A GIVEN PROCESS OR OPERATION TO DETERMINE
WHETHER IT IS INCIDENT TO OR IN CONJUNCTION WITH FARMING. 

IN MAKING SUCH A PARTICULARIZED DETERMINATION, WE MAY CONSIDER FIRST
THE CRITERIA SET FORTH BY THE WAGE-HOUR ADMINISTRATOR IN 1949, 35 WHM
371, 373.  HE PROPOSED THE FOLLOWING AS RELEVANT FACTORS: 

(A)  THE SIZE OF THE ORDINARY FARMING OPERATIONS.  THERE CAN BE NO
QUESTION HERE THAT SUCH OPERATIONS ARE SUBSTANTIAL, AND THAT WAIALUA'S
SUGAR-RAISING ACTIVITIES ARE NO MERE FACADE FOR AN OTHERWISE INDUSTRIAL
VENTURE. 

(B)  THE TYPE OF PRODUCT RESULTING FROM THE OPERATION IN QUESTION. 
HERE THE PRODUCTS ARE RAW SUGAR AND MOLASSES.  THERE IS SOME GROUND FOR
CONSIDERING THESE AS STRICTLY AGRICULTURAL COMMODITIES, SINCE THE
UNMILLED SUGAR CANE IS HIGHLY PERISHABLE AND UNMARKETABLE AS SUCH.  ON
THE OTHER HAND, THE MILLING OPERATION TRANSFORMS SUGAR CANE FROM ITS
RAW AND NATURAL STATE, AND THERE IS SUPPORT IN THE SENATE DEBATES FOR
THE VIEW THAT A PROCESS RESULTING IN SUCH A CHANGE IS MORE AKIN TO
MANUFACTURING THAN TO AGRICULTURE.  SEE 81 CONG. REC. 7659-7660, 7877
7878. 

(C)  THE INVESTMENT IN THE PROCESSING OPERATION AS OPPOSED TO THE
ORDINARY FARMING ACTIVITIES.  HERE THE MILL ACCOUNTS FOR 29% OF
WAIALUA'S TOTAL INVESTMENT IN THE PLANTATION. 

(D)  THE TIME SPENT IN PROCESSING AND IN ORDINARY FARMING.  WAIALUA'S
MILL OPERATIONS ACCOUNT FOR 23% OF THE MAN-HOURS WORKED DURING THE
YEAR. 

(E)  THE EXTENT TO WHICH ORDINARY FARMWORKERS DO PROCESSING.  THERE
IS BUT SLIGHT INTERCHANGE OF WORKMEN.  THE OVER-ALL PICTURE DISCLOSES
ESSENTIALLY SEPARATE WORKING FORCES FOR MILL OPERATIONS AND FOR
FARMING. 

(F)  THE DEGREE OF SEPARATION BY THE EMPLOYER BETWEEN THE VARIOUS
OPERATIONS.  THE PLANTATION ORGANIZATION CALLS FOR SEPARATE DEPARTMENTS
TO HANDLE THE PROCESSING ACTIVITIES AND FIELD WORK. 

(G)  THE DEGREE OF INDUSTRIALIZATION.  THE MILL WORKERS HERE, AS
OBSERVED IN THE BOWIE CASE, ARE TYPICAL FACTORY WORKERS, AND FROM ITS
EXTERNAL CHARACTERISTICS THE MILLING OPERATION IS CERTAINLY AN
INDUSTRIAL VENTURE. 

BUT IN MAKING THE FACTUAL DETERMINATION, WE MUST KEEP IN MIND THAT
THE QUESTION HERE PRESENTED IS A LIMITED ONE:  IS THE MILLING OPERATION
PART OF THE AGRICULTURAL VENTURE?  IF IT IS AGRICULTURE, ALBEIT
INDUSTRIALIZED AND INVOLVING HIGHLY SPECIALIZED MECHANICAL TASKS, WE
MUST HOLD IT TO BE WITHIN THE AGRICULTURE EXEMPTION.  THUS WE MUST ADD
TO THE FACTORS ABOVE SOME CONSIDERATION OF WHAT IS ORDINARILY DONE BY
FARMERS WITH REGARD TO THIS TYPE OF OPERATION.  IT IS TRUE THAT THE
WORD "ORDINARILY" APPEARED IN AN EARLIER VERSION OF THE EXEMPTION AND
WAS SUBSEQUENTLY STRICKEN, BUT THE INQUIRY IS NONETHELESS A PERTINENT
ONE.  IT HAS A VERY DIRECT BEARING IN DETERMINING WHETHER THE MILLING
OPERATION IS REALLY INCIDENT TO FARMING. 

OUR MAJOR DOMESTIC SUGAR-PRODUCING AREAS ARE IN LOUISIANA, PUERTO
RICO AND HAWAII.  STATISTICS FOR 1948 REVEAL THAT THE 5,957 SUGAR FARMS
IN LOUISIANA HAVE THEIR SUGAR PROCESSED IN 47 INDEPENDENT MILLS AND IN
12 CO-OPERATIVES.  MARKETING SUGARCANE IN LOUISIANA (U.S. DEPT. AGRIC. 
1949) 1, 23; AGRICULTURAL, MANUFACTURING AND INCOME STATISTICS FOR THE
DOMESTIC SUGAR AREAS (U.S. DEPT. AGRIC.  1954) 84.  WHILE THE
INDEPENDENT MILLS OWN 40% OF THE CANE-PRODUCING ACREAGE, THERE IS NO
INDICATION THAT THESE CUSTOMARILY PROCESS ONLY THE SUGAR CANE GROWN ON
THEIR OWN LANDS.  FOR THE SAME YEAR, PUERTO RICAN SUGAR FROM 14,772
FARMS WAS PROCESSED IN 35 "CENTRALS."  THE MARKETING OF SUGARCANE IN
PUERTO RICO (U.S. DEPT. AGRIC.  1950) 2; AGRICULTURAL, MANUFACTURING
AND INCOME STATISTICS FOR THE DOMESTIC SUGAR AREAS, SUPRA, AT 121. 
AGAIN THE PRACTICE IS NOT FOR THE INDIVIDUAL FARMER TO GRIND HIS OWN
SUGAR.  THE STATISTICS FOR HAWAII DISCLOSE ONLY 34 AND 30 FARMS FOR
1947 AND 1948 RESPECTIVELY.  BUT THESE LOW FIGURES RESULTED FROM A
CLASSIFICATION WHICH COUNTED ONLY THE "PLANTATIONS."  WHEN SMALLER
INDEPENDENT FARMS WERE INCLUDED IN THE 1951 FIGURES, THE NUMBER OF
HAWAIIAN SUGAR FARMS JUMPED TO 786.  AGRICULTURAL, MANUFACTURING AND
INCOME STATISTICS FOR THE DOMESTIC SUGAR AREAS, SUPRA, AT 137.  IN
ADDITION, THERE ARE SOME 1,500 OR 1,800 SMALL "ADHERENT PLANTERS"
PRODUCING SUGAR CANE IN HAWAII.  SEE HEARINGS BEFORE THE HOUSE
COMMITTEE ON EDUCATION AND LABOR ON H.R. 2033, 81ST CONG., 1ST SESS.,
P. 1173.  ACCORDING TO INFORMATION FURNISHED BY THE SUGAR DIVISION OF
THE UNITED STATES DEPARTMENT OF AGRICULTURE, THERE ARE ABOUT TWENTY-SIX
SUGAR MILLS IN HAWAII PROCESSING CANE PRODUCED BY ALL THESE FARMERS. 
TEN OF THESE, LIKE WAIALUA, ARE ENGAGED EXCLUSIVELY IN THE PROCESSING
OF THEIR OWN CANE; THE REMAINING SIXTEEN PROCESS CANE GROWN BY OTHERS
AS WELL AS THEIR OWN.  (FN7)  THE PERTINENT RATIO, HOWEVER, IS NOT THE
PROPORTION OF MILLERS WHO GROW THEIR OWN CANE BUT THE PERCENTAGE OF
FARMERS WHO ENGAGE IN MILLING.  THUS, WHILE SUGAR MILLING BY FARMERS IS
MORE PREVALENT IN HAWAII THAN IN THE OTHER SUGAR-PRODUCING AREAS, IT IS
VERY DOUBTFUL THAT THESE MILLING OPERATIONS CAN BE CONSIDERED A NORMAL
INCIDENT TO THE CULTIVATION OF SUGAR CANE, EVEN IN THE CONTEXT OF THE
HAWAIIAN SUGAR INDUSTRY. 

FROM A CONSIDERATION OF ALL THE RELEVANT FACTORS, THE QUESTION WOULD
BE AN EXTREMELY CLOSE ONE IN GAUGING WHETHER THIS MILLING OPERATION IS
FARMING OR MANUFACTURING.  BUT WE DO NOT STOP HERE.  THE STATUS UNDER
THE FLSA OF FARMERS MILLING THEIR OWN SUGAR IS INFLUENCED BY A NUMBER
OF EXTRANEOUS LEGISLATIVE FACTORS - THEIR POSITION VIS-A-VIS THE
AGRICULTURE EXEMPTION MAY WELL BE SUI GENERIS.  SOME TIME AFTER THE
INCONCLUSIVE FLOOR DEBATE ON SUGAR PROCESSING, THERE WAS INCLUDED IN
SEC. 7(C) A TOTAL EXEMPTION OF THIS ACTIVITY FROM THE OVERTIME
PROVISIONS OF THE ACT.  THIS MAY WELL HAVE BEEN CONSIDERED A
SATISFACTORY ANSWER TO THE DIFFICULT PROBLEMS POSED IN DETERMINING
WHETHER SUGAR PROCESSING CAME WITHIN THE AGRICULTURE EXEMPTION.  BUT WE
CANNOT BE SURE OF THIS, BECAUSE SEC. 7(C) INCLUDES SIMILAR EXEMPTIONS
FOR OPERATIONS LIKE COTTON GINNING, WHICH ALSO COME WITHIN THE
AGRICULTURE EXEMPTION IF PERFORMED BY THE FARMER ON HIS OWN CROPS. 
MORE SIGNIFICANT IS THE OMISSION OF SUGAR MILLING FROM THE EXEMPTION
PROVIDED BY SEC. 13(A)(10) FOR VARIOUS PROCESSING OPERATIONS PERFORMED
WITHIN THE AREA OF PRODUCTION. 

THIS EXEMPTION WAS DESIGNED TO MEET THE PROTESTS OF MANY LEGISLATORS
WHO ARGUED THAT THE BROAD AGRICULTURE EXEMPTION PERMITTED LARGE FARMING
UNITS TO PROCESS THEIR OWN PRODUCTS WITHOUT SUBJECTING THEMSELVES TO
THE TERMS OF THE ACT, WHILE THE SMALL FARMER, WHO DID NOT HAVE THE
EQUIPMENT NECESSARY FOR SUCH PROCESSING, HAD TO BEAR THE COST OF
OPERATIONS COVERED BY THE ACT.  SECTION 13(A)(10) EXEMPTED EMPLOYEES
"WITHIN THE AREA OF PRODUCTION  ...  ENGAGED IN HANDLING, PACKING,
STORING, GINNING, COMPRESSING, PASTEURIZING, DRYING, PREPARING IN THEIR
RAW OR NATURAL STATE, OR CANNING OF AGRICULTURAL OR HORTICULTURAL
COMMODITIES FOR MARKET."  THUS, FOR EXAMPLE, THE COTTON FARMER WITHOUT
A GIN WAS PLACED ON AN EQUAL FOOTING WITH FARMERS WHO GINNED THEIR OWN
COTTON, SINCE EACH COULD HAVE THEIR COTTON GINNED BY EMPLOYEES WHO WERE
COVERED BY NEITHER THE WAGE NOR THE HOUR PROVISIONS OF THE ACT.  BUT
SUGAR MILLING IS NOT INCLUDED WITHIN THE "AREA OF PRODUCTION"
EXEMPTION, SINCE IN THE COURSE OF THIS PROCESSING THE SUGAR CANE IS
CHANGED FROM ITS "RAW OR NATURAL STATE."  SEE 35 WHM 365.  SENATOR
SCHWELLENBACH, ONE OF THE MOST ARDENT ADVOCATES OF EQUALIZATION IN THE
STATUS OF LARGE AND SMALL FARMERS, CONSIDERED THIS CHANGE IN THE
PRODUCT AS MARKING THE DIVIDING LINE BETWEEN PROCESSING AS AN
AGRICULTURAL FUNCTION AND PROCESSING AS A MANUFACTURING OPERATION.  SEE
81 CONG. REC. 7659-7660, 7877-7879.  THE "AREA OF PRODUCTION" EXEMPTION
REFLECTS THIS DICHOTOMY.  THUS ALL OTHER FORMS OF QUASI-INDUSTRIAL
PROCESSING - GINNING, CANNING, PACKING, ETC. - WHICH MIGHT BE USED AS
ANALOGIES FOR INCLUDING SUGAR MILLING WITHIN THE AGRICULTURE EXEMPTION
ARE REPEATED IN SEC. 13(A)(10).  CONGRESS WOULD NOT HAVE OMITTED SUGAR
MILLING FROM THE "AREA OF PRODUCTION" EXEMPTION IF IT HAD NOT CONCLUDED
THAT IT ALSO FELL OUTSIDE THE AGRICULTURE EXEMPTION.  WE THINK THAT
ADHERENCE TO THE CONGRESSIONAL SCHEME REQUIRES US TO HOLD THAT SUGAR
MILLING IS OUTSIDE THE AGRICULTURE EXEMPTION AND THAT ITS EXEMPTION
FROM THE HOURS PROVISION BY VIRTUE OF SEC. 7(C) MARKS THE OUTER LIMIT
OF CONGRESSIONAL CONCESSION TO THIS TYPE OF PROCESSING.  BY SO HOLDING,
WE NOT ONLY EQUALIZE THE STATUS OF ALL SUGAR FARMERS WITH REGARD TO
FLSA COVERAGE OF MILLING OPERATIONS ON THEIR PRODUCT, BUT WE EQUALIZE
THE IMPACT OF THE ACT ON ALL SUGAR MILLS, THOSE WHICH GRIND THEIR OWN
CANE AND THOSE GRINDING THEIR NEIGHBORS' AS WELL. 

WE NOTE, FURTHER, THAT SUCH AN INTERPRETATION CLOSES A GAP THAT WOULD
OTHERWISE EXIST IN THE FEDERAL WAGE REGULATION OF PERSONS ENGAGED IN
PRODUCING SUGAR FOR INTERSTATE COMMERCE.  THE FLSA CLEARLY REACHES
THOSE ENGAGED IN REFINING SUGAR, CF. FLSA SEC. 7(C), AND THE SUGAR ACT
PROVIDES FOR REASONABLE WAGES FOR THOSE ENGAGED IN THE "PRODUCTION,
CULTIVATION, OR HARVESTING" OF SUGAR CANE.  50 STAT. 909, 61 STAT. 930,
7 U.S.C. SEC. 1131.  THE LATTER TERMINOLOGY HAS BEEN CONSTRUED TO
EXTEND TO THE MAINLINE RAILROAD WORKERS, E.G., 7 CFR, 1941 SUPP., SEC.
802.34D, LEAVING UNREGULATED ONLY THE WAGES OF SUGAR-MILL EMPLOYEES -
UNLESS, AS WE HOLD HERE, THESE FACTORY WORKERS ARE BEYOND THE TERMS OF
THE AGRICULTURE EXEMPTION.   WAIALUA MAKES MUCH OF THE FACT THAT THE
ADMINISTRATOR ORIGINALLY CONSTRUED THE AGRICULTURE EXEMPTION AS
COVERING THE GRINDING OF THE FARMER'S OWN SUGAR CANE.  INTERPRETATIVE
BULLETIN NO. 14, SUPRA.  THE ADMINISTRATOR REVISED HIS CONSTRUCTION IN
1941 TO ACCORD WITH HIS INTERPRETATION OF SEVERAL CASES IN THE FIRST
CIRCUIT DEALING WITH THE PUERTO RICAN SUGAR INDUSTRY, AND FROM THAT
TIME HE HAS MAINTAINED THAT SUGAR MILLING IS NOT EXEMPT, EVEN IF THE
FARMER IS ENGAGED EXCLUSIVELY IN THE MILLING OF HIS OWN CANE.  SEE
PRESS RELEASE, SUPRA, AT NOTE 5.  THE REVISED CONSTRUCTION OF THE
ADMINISTRATOR - AND THE FACT THAT FARMERS MILLING THEIR OWN SUGAR CANE
WERE COVERED ONLY BY SEC. 7(C) - WERE REPORTED TO THE CONGRESSIONAL
COMMITTEES CONSIDERING AMENDMENTS TO THE FLSA.  SEE HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON EDUCATION AND LABOR ON S. 1349,
79TH CONG., 1ST SESS., PP. 1049-1050; HEARINGS BEFORE A SUBCOMMITTEE OF
THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE ON S. 49 ET AL., 80TH
CONG., 2D SESS., P. 318; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE ON S. 58 ET AL., 81ST CONG., 1ST
SESS., PP. 973-974; HEARINGS BEFORE THE HOUSE COMMITTEE ON EDUCATION
AND LABOR ON H.R. 2033, 81ST CONG., 1ST SESS., P. 1166.  BUT WHEN THE
ACT WAS AMENDED IN 1949 CONGRESS DID NOT OVERRULE THIS INTERPRETATION. 
IT PROVIDED INSTEAD THAT ANY "ORDER, REGULATION, OR INTERPRETATION OF
THE ADMINISTRATOR" IN EFFECT ON THE EFFECTIVE DATE OF THE 1949
AMENDMENTS "SHALL REMAIN IN EFFECT  ... EXCEPT TO THE EXTENT THAT ANY
SUCH ORDER, REGULATION, INTERPRETATION  ... MAY BE INCONSISTENT WITH
THE PROVISIONS OF THIS ACT  ...  ."  63 STAT. 920.  WE RELIED ON THIS
UPHOLDING A REGULATION OF THE ADMINISTRATOR WHICH SIMILARLY HAD BEEN
CHANGED, REPORTED TO CONGRESS IN ITS REVISED FORM, AND LEFT UNALTERED
BY THE 1949 ACT.  WE COME TO THE SAME CONCLUSION IN THIS CASE, AND HOLD
THE ADMINISTRATOR'S INTERPRETATION UNIMPAIRED BY THE 1949 AMENDMENTS. 
IT THEREFORE FOLLOWS THAT THE EMPLOYEES WORKING IN THE PROCESSING PLANT
ARE NOT WITHIN THE AGRICULTURE EXEMPTION. 

THE PROCESSING EXEMPTION. 

ALTHOUGH THE MILL WORKERS ARE NOT WITHIN THE AGRICULTURE EXEMPTION,
THEY ARE NEVERTHELESS EXEMPT FROM THE OVERTIME PROVISIONS OF THE ACT. 
ACT SHALL NOT APPLY TO "AN EMPLOYER ENGAGED IN THE  ...  PROCESSING OF
... SUGARCANE  ...  INTO SUGAR (BUT NOT REFINED SUGAR)," AND THIS
EXEMPTION EXTENDS TO "EMPLOYEES IN ANY PLACE OF EMPLOYMENT WHERE THE
PROCESSING IS CARRIED ON."  THIS, WE FEEL, COVERS THE WORKMEN DURING
THE PROCESSING SEASON WHILE MAKING EMERGENCY REPAIRS IN THE MILL,
CLEANING THE EQUIPMENT DURING THE WEEK-END SHUTDOWN, AND PERFORMING
OTHER TASKS CLOSELY AND INTIMATELY CONNECTED WITH THE PROCESSING
OPERATION.  REPAIR WORK ON THE MILL EQUIPMENT IN WAIALUA'S SHOPS IN THE
MILL AREA IS ALSO WITHIN THE EXEMPTION.  SEE 35 WHM 360-361.  DURING
THE THREE-MONTH OFF-SEASON, HOWEVER, A COMPLETE OVERHAUL AND
RECONDITIONING IS GIVEN THE ENTIRE MILL EQUIPMENT AND NO PROCESSING
WORK IS PERFORMED.  SINCE SEC. 7(C) ON ITS FACE COVERS ONLY THOSE
EMPLOYEES WHO WORK IN THE PLACE OF EMPLOYMENT WHERE THE PROCESSOR IS SO
ENGAGED, WE CANNOT EXTEND ITS COVERAGE TO INCLUDE WITHIN THE OVERTIME
EXEMPTION PERMANENT REPAIRS, OVERHAUL AND RECONDITIONING DURING THIS
THREE-MONTH OFF-SEASON.  SEE HEABURG V. INDEPENDENT OIL MILL, 46 F.
SUPP. 751; ABRAM V. SAN JOAQUIN COTTON OIL CO., 49 F. SUPP. 393.  CF.
MITCHELL V. STINSON, 217 F.2D 210, 217 (C.A. 1ST CIR.). 

THE WAIALUA VILLAGE WORKERS. 

WE NOW COME TO THOSE WORKERS EMPLOYED IN THE MAINTENANCE OF WAIALUA
VILLAGE.  THIS VILLAGE SEEMS TO BE AN ORDINARY TOWN, EXCEPT FOR THE
FACT THAT WAIALUA PERFORMS THE USUAL CIVIC FUNCTIONS.  IT RENTS ITS
DWELLING HOUSES TO EMPLOYEES AND OTHERS ON A PURELY VOLUNTARY BASIS. 
IN FACT, THE ADJACENT HALEIWA VILLAGE, NOT OWNED BY WAIALUA, HOUSES
SOME OF THE EMPLOYEES.  UNDER THE 1949 AMENDMENTS TO THE ACT, THE WORK
OF THE EMPLOYEES IN MAINTAINING THE TOWN CLEARLY IS NOT COVERED.  63
STAT. 911, 29 U.S.C. SEC. 203(J).  THE QUESTION PRESENTED IN THIS CASE,
THEREFORE, IS OF SMALL IMPORT IN ITSELF.  EVEN SO, TO COME WITHIN THE
COVERAGE OF THE ACT PRIOR TO THIS AMENDMENT, THE ACTIVITY OF SUCH
EMPLOYEES MUST HAVE A "CLOSE AND IMMEDIATE TIE WITH THE PROCESS OF
PRODUCTION."  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 525.  WE DO NOT
BELIEVE SUCH A TENUOUS RELATION AS HERE ESTABLISHED IS SUFFICIENT. 
THIS ACTIVITY IS SUFFICIENTLY REGULATED BY THE REQUIREMENTS OF HAWAIIAN
LAW.  REVISED LAWS OF HAWAII, 1945, TITLE 9, CH. 75, SECS. 4351-4366. 
CONGRESS MADE IT CLEAR THAT IT INTENDED TO "LEAVE LOCAL BUSINESS TO THE
PROTECTION OF THE STATES," WALLING V. JACKSONVILLE PAPER CO., 317 U.S.
564, 570, AND "DID NOT SEE FIT  ...  TO EXHAUST ITS CONSTITUTIONAL
POWER OVER COMMERCE," 10 EAST 40TH ST. BLDG. V. CALLUS, 325 U.S. 578,
579.  FOR THESE REASONS, WE BELIEVE THAT THE EMPLOYEES WORKING IN THE
MAINTENANCE OF THE VILLAGE AND THE REPAIR OF THE RESPONDENT'S DWELLING
HOUSES ARE NOT COVERED BY THE PROVISIONS OF THE ACT. 

IN VIEW OF THE STATE OF THE RECORD, WE ARE UNABLE TO DETERMINE THE
RIGHTS OF THE REMAINING EMPLOYEES INVOLVED IN THIS LITIGATION.  WE DO
NOT HAVE SUFFICIENT DATA TO DECIDE WHETHER THE EMPLOYEES IN THE
LABORATORY, THE CEMENT PRODUCTS PLANT AND THE POWER PLANT ARE WITHIN
THE AGRICULTURE OR SUGAR-PROCESSING EXEMPTION.  ON REMAND, THE PROBLEMS
ARISING IN THOSE OPERATIONS - SMALL THOUGH THEY BE IN THE OVER-ALL
PICTURE - MAY BE DECIDED IN THE LIGHT OF THE CONSIDERATIONS SET DOWN IN
THIS OPINION.  LIKEWISE, THE TRIAL COURT MAY MAKE ANY NECESSARY
REASSESSMENT IN OVERTIME COMPENSATION DUE EMPLOYEES.  THE JUDGMENT OF
THE COURT OF APPEALS, ACCORDINGLY, IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  "SEC.  13(A).  THE PROVISIONS  ...  SHALL NOT APPLY WITH RESPECT
TO  ...  (6) ANY EMPLOYEE EMPLOYED IN AGRICULTURE." 

FN2  FORTY-TWO EMPLOYEES WERE ORIGINALLY INVOLVED, BUT 11 SUSTAINED
ADVERSE DECISIONS IN THE DISTRICT COURT AND DID NOT APPEAL. 

FN3  "  ...  THE GOVERNMENT DOES NOT ATTEMPT TO UPHOLD THE VALIDITY
OF THE ACT ON THE BASIS OF THE COMMERCE CLAUSE, WHICH, FOR THE PURPOSE
OF THE PRESENT CASE, MAY BE PUT ASIDE AS IRRELEVANT."  297 U.S., AT
64. 

FN4  "IF A COMPANY HAS SUGAR CANE FIELDS AND ALSO A MILL, THE
TRANSPORTATION OF ITS OWN SUGAR CANE TO THE MILL SEEMS AN INCIDENTAL
PRACTICE WHICH IS INCLUDED WITHIN THE EXEMPTION."  U.S. DEPT. OF LABOR,
WAGE AND HOUR DIVISION, INTERPRETATIVE BULLETIN NO. 14, P. 9, 35 WHM
351, 356. 

FN5  PRESS RELEASE, WAGE AND HOUR DIVISION, SEPT. 15, 1941, REPORTED
AT 35 WHM 355. 

FN6  FINDINGS AND OPINION OF ADMINISTRATOR, MAY 20, 1943, WAIALUA'S
BRIEF, PP. 51-52, IN PROCEEDINGS INCIDENT TO WAGE ORDER, PART 635, FOR
THE SUGAR AND RELATED PRODUCTS INDUSTRY, 8 FED. REG. 7098. 

FN7  SEE LETTER OF APRIL 28, 1955, TO STUART ROTHMAN, SOLICITOR,
DEPARTMENT OF LABOR, FROM LAWRENCE MYERS, DIRECTOR, SUGAR DIVISION OF
THE DEPARTMENT OF AGRICULTURE, AS CORRECTED BY LETTER OF MAY 13, 1955,
TO STUART ROTHMAN, SOLICITOR, DEPARTMENT OF LABOR, FROM THOMAS H.
ALLEN, ACTING DIRECTOR, SUGAR DIVISION OF THE DEPARTMENT OF
AGRICULTURE.  SEE ALSO SUPPLEMENTAL BRIEF OF THE SECRETARY OF LABOR, P.
11, N. 4. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
HARLAN JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

THE WAIALUA AGRICULTURAL COMPANY PERFORMS THE CLOSELY INTEGRATED
FUNCTION NOT MERELY OF GROWING, HARVESTING AND GATHERING SUGAR CANE
FROM ITS FIELDS, BUT OF PROMPTLY PROCESSING THAT CUMBERSOME, PERISHABLE
CROP INTO TRANSPORTABLE, MARKETABLE RAW SUGAR AND MOLASSES.  IF NOT SO
PROCESSED, THE CANE SPOILS.  THE PROCESSING, THEREFORE, IS AS ESSENTIAL
TO THE SUCCESS OF THE SUGAR CANE PLANTATION AS THE GROWING AND
HARVESTING OF THE CANE ITSELF.  THE QUESTION BEFORE US IS THE EXTENT TO
WHICH THE EMPLOYEES OF WAIALUA ARE EXEMPT FROM THE FAIR LABOR STANDARDS
ACT OF 1938. 

CONGRESS, IN SO MANY WORDS, HAS EXCLUDED FROM THE COVERAGE OF THE ACT
"ANY EMPLOYEE EMPLOYED IN AGRICULTURE."  (FN1)  IT HAS CLARIFIED THIS
EXEMPTION BY ADDING THAT: 

"'AGRICULTURE' INCLUDES FARMING IN ALL ITS BRANCHES AND AMONG OTHER
THINGS INCLUDES THE CULTIVATION AND TILLAGE OF THE SOIL  ...  THE
PRODUCTION, CULTIVATION, GROWING, AND HARVESTING OF ANY AGRICULTURAL OR
HORTICULTURAL COMMODITIES  ...  AND ANY PRACTICES  ... PERFORMED BY A
FARMER OR ON A FARM AS AN INCIDENT TO OR IN CONJUNCTION WITH SUCH
FARMING OPERATIONS, INCLUDING PREPARATION FOR MARKET, DELIVERY TO
STORAGE OR TO MARKET OR TO CARRIERS FOR TRANSPORTATION TO MARKET." 
(FN2) 

IN MY VIEW, THE ABOVE DEFINITION INCLUDES ALL OF THE OPERATIONS OF
THE WAIALUA AGRICULTURAL COMPANY.  (FN3)  IT IS DIFFICULT TO CONCEIVE
OF TERMS COVERING THEM MORE ADEQUATELY.  CONCEDEDLY, THE COMPANY IS A
"FARMER," AND EACH OF THE PRACTICES INVOLVED HERE READILY CAN BE
CONCEIVED OF AS BEING PERFORMED BY IT ON ITS FARM AS AN INCIDENT TO OR
IN CONJUNCTION WITH GROWING, HARVESTING AND PREPARING ITS SUGAR CANE
FOR MARKET OR FOR DELIVERY TO CARRIERS FOR TRANSPORTATION TO MARKET. 

THE COURT GOES FAR TOWARD ADOPTING THE ABOVE VIEW.  BY APPLYING THE
AGRICULTURAL EXEMPTION TO WAIALUA'S EMPLOYEES WHO GROW OR HARVEST THE
SUGAR CANE, AND TO THOSE WHO DELIVER THE CANE TO THE PROCESSING MILL,
THE COURT COMPLETELY RELIEVES WAIALUA OF THE WAGE AND HOUR REQUIREMENTS
OF THE ACT IN RELATION TO THOSE EMPLOYEES.  ON THE OTHER HAND, THE
COURT DECLINES TO APPLY THE AGRICULTURAL EXEMPTION TO WAIALUA'S
PROCESSING EMPLOYEES.  THE CONSEQUENCE OF THIS IS MINIMIZED BY TWO
FACTORS.  FIRST, THE RESULTING SUBJECTION OF WAIALUA TO THE MINIMUM
WAGE REQUIREMENTS OF THE ACT ADDS NO BURDEN BECAUSE WAIALUA, OF ITS OWN
ACCORD, PAYS ITS PROCESSING EMPLOYEES MORE THAN THE REQUIRED MINIMUM. 
SECONDLY, ANY BURDEN DUE TO THE RESULTING SUBJECTION OF WAIALUA TO THE
STATUTORY 40-HOUR WEEK, WITH INCREASED PAY FOR OVERTIME, IS NOT GREAT,
BECAUSE SEC. 7(C) (FN4) SPECIFICALLY GRANTS EXEMPTION FROM SUCH
REGULATION TO "EMPLOYEES IN ANY PLACE OF EMPLOYMENT WHERE" THE EMPLOYER
IS ENGAGED IN PROCESSING SUGAR CANE INTO RAW SUGAR OR SYRUP. 

HOWEVER, THE PROCESSING EXEMPTION, UNDER SEC. 7(C), IS NOT THE FULL
EQUIVALENT OF THE AGRICULTURAL EXEMPTION UNDER SECS. 13(A)(6) AND
3(F).  THE EXEMPTION UNDER SEC. 7(C) IS LIMITED TO THE OVERTIME
PROVISIONS OF THE ACT AND DOES NOT EXTEND TO THE MINIMUM WAGE
PROVISIONS.  IT IS CONSTRUED TO COVER ONLY TASKS THAT ARE "CLOSELY AND
INTIMATELY CONNECTED" WITH THE ACTUAL PROCESSING OF SUGAR CANE IN A
MILL, WHEREAS THE AGRICULTURAL EXEMPTION IS NOT SO RESTRICTED.  THE
COURT MAKES THIS CLEAR.  SECTION 7(C) IS HELD BY IT NOT TO REACH
SERVICES PERFORMED BY WAIALUA'S PROCESSING EMPLOYEES IN THE MILL DURING
THE "OFF SEASON" WHEN NO CANE IS ACTUALLY BEING PROCESSED THERE.  STILL
OTHER AREAS OF UNCERTAINTY APPEAR WHERE THE COURT REQUIRES FURTHER
FINDINGS AS TO THE WORK DONE IN THE LABORATORY, THE CONCRETE PRODUCTS
PLANT AND THE POWER PLANT BEFORE DETERMINING THE STATUS OF EMPLOYEES
ENGAGED IN THOSE OPERATIONS.  (FN5) 

IF THE AGRICULTURAL EXEMPTION BE GIVEN THE BROAD APPLICATION TO WHICH
I BELIEVE IT ENTITLED, NO LINE NEED BE DRAWN BETWEEN PROCESSING AND
OTHER AGRICULTURAL ACTIVITIES.  EACH OF THE ABOVE ACTIVITIES WOULD BE
EXEMPT BECAUSE EACH IS "INCIDENT TO OR IS PERFORMED IN CONJUNCTION
WITH" THE AGRICULTURAL OPERATION OF GROWING, HARVESTING, PREPARING AND
DELIVERING THE CANE TO MARKET. 

THE COURT RECOGNIZES THAT THE LARGE SIZE OF WAIALUA'S PLANTATION
MAKES NECESSARY THE SPECIALIZATION OF LABOR INCIDENTAL TO ITS SUGAR
CANE PRODUCTION AND MARKETING.  MERE SIZE AND MECHANIZATION OF
WAIALUA'S FARMING OPERATIONS ARE NOT, IN THEMSELVES, GROUNDS FOR
EXCLUDING ANY OF ITS EMPLOYEES FROM THE AGRICULTURAL EXEMPTION.  AS I
SEE IT, THE STATUTORY DEFINITION OF AGRICULTURE DESCRIBES A MAJOR
ACTIVITY WHICH LIES BEYOND THE OUTER LIMITS OF THE FAIR LABOR STANDARDS
ACT.  "AGRICULTURE" IS NOT AN EXCEPTION CARVED OUT OF THE JURISDICTION
OF THE ACT.  CONGRESS NEVER PROPOSED TO APPLY THE ACT TO AGRICULTURE. 
TO ANY EXTENT THAT THE ACT IMPINGES UPON AGRICULTURAL ACTIVITIES, THOSE
IMPINGEMENTS ARE THEMSELVES EXCEPTIONS TO THE GENERAL FREEDOM THAT
CHARACTERIZES AGRICULTURAL EMPLOYMENT. 

THE LEGISLATIVE HISTORY SUPPORTS AN ALL-INCLUSIVE, RATHER THAN A
RESTRICTIVE, INTERPRETATION OF THE WORD "AGRICULTURE" AS USED HERE. 
WHEN SENATE BILL 2475, WHICH BECAME THE FAIR LABOR STANDARDS ACT, WAS
REPORTED FAVORABLY BY THE SENATE COMMITTEE ON EDUCATION AND LABOR, IT
EXEMPTED "ANY PERSON EMPLOYED IN AGRICULTURE."  IT PROVIDED THAT AS
"USED IN THIS ACT, THE TERM 'AGRICULTURE' INCLUDES FARMING IN ALL ITS
BRANCHES AND  ...  ANY PRACTICES ORDINARILY PERFORMED BY A FARMER AS AN
INCIDENT TO SUCH FARMING OPERATIONS."  ID., CALENDAR NO. 905, 75TH
CONG., 1ST SESS. 51.  CONGRESS PROPOSED THEREBY TO EXEMPT "PERSONS
ENGAGED IN AGRICULTURE AND SUCH PROCESSING OF AGRICULTURAL COMMODITIES
AS IS ORDINARILY PERFORMED BY FARMERS AS AN INCIDENT OF FARM
OPERATIONS."  S. REP. NO. 884, 75TH CONG., 1ST SESS. 6.  THE EXEMPTION
WAS THUS EXPRESSLY MADE APPLICABLE AT LEAST TO THE ORDINARY PROCESSING
OF AGRICULTURAL COMMODITIES WHILE CONVERTING THEM FROM THEIR NATURAL
STATE TO A MARKETABLE FORM. 

IN THE ENSUING DEBATE, ATTENTION WAS DIRECTED SPECIFICALLY TO SUGAR
CANE.  IN ANSWER TO WHETHER SYRUP MILLS, OPERATED ON SUGAR CANE
PLANTATIONS, WOULD BE EXEMPT, THE CHAIRMAN OF THE SENATE COMMITTEE ON
EDUCATION AND LABOR STATED THAT "IF  ...  IT IS A PRACTICE NOT
ORDINARILY PERFORMED BY A FARMER AS INCIDENT TO HIS FARMING OPERATIONS
...  IT WOULD NOT COME UNDER THE DEFINITION."  81 CONG. REC. 7657. 
HOWEVER, THIS RESTRICTION OF THE AGRICULTURAL EXEMPTION SIGNIFICANTLY
DISAPPEARED WHEN THE WORD "ORDINARILY" WAS INTENTIONALLY STRICKEN OUT
OF THE DEFINITION OF AGRICULTURE.  H.R. REP. NO. 1452, 75TH CONG., 1ST
SESS. 11.  IN ITS FINAL STAGE, "AGRICULTURE" BECAME SUBSTANTIALLY ALL
INCLUSIVE.  IT COVERED "ANY PRACTICES PERFORMED BY A FARMER OR ON A
FARM AS AN INCIDENT TO SUCH FARMING OPERATIONS, INCLUDING PREPARATION
FOR MARKET, DELIVERY TO STORAGE OR TO MARKET OR TO CARRIERS FOR
TRANSPORTATION TO MARKET."  S. 2475, UNION CALENDAR NO. 804, 75TH
CONG., 3D SESS. 50. 

EMPHASIS THUS WAS SHIFTED FROM ORDINARY PRACTICES INCIDENT TO FARMING
OPERATIONS TO ALL PRACTICES INCIDENT TO FARMING OPERATIONS, INCLUDING
THOSE INCIDENT TO THE PREPARATION OR DELIVERY OF AGRICULTURAL PRODUCTS
TO STORAGE OR TO MARKET.  OPERATIONS, SUCH AS THOSE OF A SHIRT FACTORY
ON A COTTON FARM, ARE SAID TO BE EXCLUDED FROM THE AGRICULTURAL
EXEMPTION, NOT BECAUSE THEY ARE NOT ORDINARILY OPERATED BY FARMERS, BUT
BECAUSE THEY ARE NEITHER INCIDENT TO FARMING OPERATIONS NOR APPROPRIATE
TO THE PREPARATION OF A FARM PRODUCT FOR ITS INITIAL MARKET. 
ACCORDINGLY, THE ESSENTIAL INQUIRY IN THE INSTANT CASE IS WHETHER
WAIALUA'S PROCESSING OF SUGAR CANE IS INCIDENT TO FARMING OPERATIONS,
INCLUDING THOSE NECESSARY OR APPROPRIATE TO PREPARE THE CANE PRODUCT
FOR STORAGE OR FOR ITS MARKET.  THE ANSWER SHOULD BE THAT HARVESTED
SUGAR CANE IS SO HIGHLY PERISHABLE THAT IT MUST BE PROCESSED PROMPTLY
IN ORDER TO BE EITHER STORED OR MARKETED.  IT NATURALLY FOLLOWS,
THEREFORE, THAT SUCH PROCESSING, DONE BY A FARMER ON A FARM, SHOULD BE
RECOGNIZED AS "AGRICULTURE" EQUALLY WITH THE GROWING AND HARVESTING OF
THE CROP. 

EMPHASIZING THIS VIEW, IN 1939, THE DEPARTMENT OF LABOR ISSUED
INTERPRETATIVE BULLETIN NO. 14.  IT THEN SAID UNEQUIVOCALLY THAT THE
WORDS "PREPARATION FOR MARKET" INCLUDED THE PROCESSING OF SUGAR CANE
INTO RAW SUGAR AND MOLASSES.  IT CLASSIFIED THAT OPERATION WITH COTTON
GINNING AND THE PACKING OR CANNING OF OTHER AGRICULTURAL COMMODITIES. 
ID., SEC. 10(B), 35 WAGE AND HOUR MAN.  351, 355.  (FN6)  BEING
SUBSTANTIALLY CONTEMPORANEOUS WITH THE FAIR LABOR STANDARDS ACT OF
1938, SUCH AN INITIAL INTERPRETATION OF THE STATUTE IS ENTITLED TO
SPECIAL WEIGHT.  UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S.
534, 549. 

WHILE THE COURT SUGGESTS THAT SEC. 7(C) LENDS SUPPORT TO ITS
CONCLUSION THAT THE AGRICULTURAL EXEMPTION DOES NOT APPLY TO PROCESSING
OPERATIONS, I BELIEVE THAT THE PRESENCE OF SEC. 7(C) SUPPORTS THE
OPPOSITE CONCLUSION.  SECTION 7(C) WAS INSERTED IN THE BILL LARGELY IN
ANSWER TO THE ARGUMENT THAT THE AGRICULTURAL EXEMPTION IN SECS.
13(A)(6) AND 3(F) WOULD RELIEVE THE LARGE PROCESSING FARMERS FROM THE
RESTRICTIONS OF THE FAIR LABOR STANDARDS ACT AND THUS HELP THEM MARKET
THEIR RAW SUGAR OR MOLASSES MORE CHEAPLY THAN THE SMALLER FARMERS WHO
WOULD BE COMPELLED TO EMPLOY NONEXEMPT INDEPENDENT PROCESSORS.  SECTION
7(C), ACCORDINGLY, WAS ADDED TO RELIEVE SUCH INDEPENDENT PROCESSORS
FROM THE OVERTIME REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT IN TACIT
RECOGNITION OF THE EXISTING EXEMPTION OF THE PROCESSING FARMERS UNDER
THE AGRICULTURAL EXEMPTION.    IN SEC. 13(A)(10), (FN7) CONGRESS
SIMILARLY EXEMPTED FROM THE WAGE AND HOUR PROVISIONS OF THE ACT ALL
EMPLOYEES "WITHIN THE AREA OF PRODUCTION  ...  ENGAGED IN HANDLING,
PACKING, STORING, GINNING, COMPRESSING, PASTEURIZING, DRYING, PREPARING
IN THEIR RAW OR NATURAL STATE, OR CANNING OF AGRICULTURAL OR
HORTICULTURAL COMMODITIES FOR MARKET  ...  ."  IT IS ARGUED THAT, BY
FAILING TO LIST SUGAR CANE PROCESSING SPECIFICALLY IN SEC. 13(A)(10),
CONGRESS IMPLIES THAT THE GENERAL AGRICULTURAL EXEMPTION IS NOT
APPLICABLE TO SUGAR CANE PROCESSING.  NO SUCH CONCLUSION IS JUSTIFIED. 
BILL, NOT TO RESTRICT EXISTING EXEMPTIONS, BUT TO CREATE FURTHER
EXEMPTIONS.  IT WAS ADDED IN ORDER TO EXEMPT THE ACTIVITIES OF PACKERS,
GINNERS AND OTHERS PROVIDING SERVICE ANYWHERE "WITHIN THE AREA OF
PRODUCTION."  IF SEC. 13(A)(10) HAD LISTED SUGAR CANE PROCESSING, IT
WOULD HAVE EXTENDED THE MINIMUM WAGE EXEMPTION TO INDEPENDENT
PROCESSORS THROUGHOUT SURROUNDING AREAS OF PRODUCTION.  TO DO SO WAS
ENTIRELY OPTIONAL WITH CONGRESS AND ITS MERE FAILURE TO DO SO IMPLIES
NO PURPOSE, SUB SILENTIO, TO REDUCE THE SCOPE OF THE AGRICULTURAL
EXEMPTION ALREADY EXTENDED, IN POSITIVE AND SWEEPING TERMS, IN RESPONSE
TO AN INSISTENT DEMAND FOR THE EXEMPTION OF ALL FARMING OPERATIONS. 

ACCORDINGLY, WHILE I CONCUR IN REVERSING THE JUDGMENT OF THE COURT OF
APPEALS AND IN THE APPLICATION OF THE AGRICULTURAL EXEMPTION TO THE
EXTENT THAT IT IS APPLIED BY THIS COURT, I WOULD REMAND THE ENTIRE
CAUSE TO THE DISTRICT COURT WITH A DIRECTION TO ENTER JUDGMENT IN FAVOR
OF THE WAIALUA AGRICULTURAL COMPANY IN ACCORDANCE WITH THIS OPINION. 

FN1  SEC. 13(A)(6), 52 STAT. 1067, 29 U.S.C. SEC. 213(A)(6). 

FN2  SEC. 3(F), 52 STAT. 1060, 29 U.S.C. SEC. 203(F). 

FN3  EXCEPT THE MAINTENANCE OF WAIALUA VILLAGE, WHICH, FOR OTHER
REASONS, AS THE COURT EXPLAINS, DOES NOT COME UNDER THE COVERAGE OF THE
ACT. 

FN4  52 STAT. 1063, 29 U.S.C. SEC. 207(C). 

FN5  IN THE LABORATORY, WAIALUA EMPLOYS, IN A SEPARATE BUILDING, 14
CHEMISTS, TESTERS AND SAMPLERS WHO ANALYZE CANE LEAF, JUICE, FIBER AND
ASH, RAW SUGAR AND MOLASSES, WATER USED IN ALL OPERATIONS, ETC., SO AS
TO HAVE ALL OPERATIONS CONTROLLED BY SCIENTIFIC METHODS.  IN THE
CONCRETE PRODUCTS PLANT, IT EMPLOYS, IN A SEPARATE BUILDING, FOUR TO
TEN MEN PRIMARILY MAKING IRRIGATION FLUMES AND WATER SUPPLY PIPE. 
OTHER PRODUCTS INCLUDE CONCRETE BLOCKS, FOOTINGS AND SIDEWALK SLABS
REQUIRED ON THE PLANTATION.  CEMENT AND OTHER MATERIALS USED IN MAKING
THESE PRODUCTS ARE PURCHASED OFF THE PLANTATION.  FOR THE POWER PLANT,
THE "BAGASSE," OR CANE FIBER REMAINING AFTER THE EXTRACTION OF ITS
JUICE, SUPPLIES FUEL.  WAIALUA BURNS IT TO PRODUCE STEAM WHICH DRIVES
MILL MACHINERY, HEATS SUGAR JUICE AND GENERATES ELECTRIC POWER.  THE
ELECTRIC POWER, IN TURN, SERVES VARIOUS OPERATIONS ON THE PLANTATION. 
THE INTEGRATED NATURE OF THESE OPERATIONS EMPHASIZES THE PROPRIETY AND
PRACTICALITY OF THE BLANKET AGRICULTURAL EXEMPTION IN RELATION TO
THEM.  IT DEMONSTRATES ALSO THE DIFFICULTY OF DRAWING LINES BETWEEN
SUCH NATURALLY RELATED OPERATIONS. 

FN6  IT APPEARS THAT THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION
LATER WITHDREW FROM THAT POSITION IN DEFERENCE TO A DECISION IN 1941 BY
THE COURT OF APPEALS FOR THE FIRST CIRCUIT IN BOWIE V. GONZALEZ, 117
F.2D 11.  THAT COURT THERE HELD THAT CERTAIN PROCESSORS WHO PROCESSED
SUGAR CANE, OTHER THAN THEIR OWN, DID NOT COME WITHIN THE AGRICULTURAL
EXEMPTION.  THE ADMINISTRATOR, IN CONCLUDING THAT THE PROCESSING OF
SUGAR CANE BY A FARMER ON HIS OWN FARM, IN HIS OWN PLANT, ALSO WAS TO
BE EXCLUDED FROM THE AGRICULTURAL EXEMPTION, EXTENDED THE DECISION
BEYOND THE POINT AT ISSUE.  SEE FARMERS IRRIGATION CO. V. MCCOMB, 337
U.S. 755, 766-767, N. 15. 

I DO NOT ATTACH SIGNIFICANCE TO THE FAILURE OF CONGRESS TO MAKE
SPECIFIC REFERENCE TO THIS POINT IN ITS 1949 AMENDMENTS.  BY ITS
SAVINGS CLAUSE, CONGRESS RESERVED THE ISSUE OF THE VALIDITY OF THE
ADMINISTRATOR'S INTERPRETATION OF THE ACT.  IT DID THIS BY PROVIDING
GENERALLY THAT EXISTING INTERPRETATIONS OF THE ADMINISTRATOR REMAIN IN
EFFECT BUT EXPRESSLY EXCEPTING "THE EXTENT THAT ANY SUCH  ...
INTERPRETATION  ...  MAY BE INCONSISTENT WITH THE PROVISIONS OF THIS
ACT  ...  ."  63 STAT. 920.  THE PENDENCY OF THE INSTANT LITIGATION AT
THAT TIME WAS CALLED TO THE ATTENTION OF THE APPROPRIATE COMMITTEE OF
CONGRESS AND IT WAS SHOWN THAT THE ADMINISTRATOR HAD NOT INSTITUTED
THAT SUIT, OR ANY OTHER, IN RELIANCE UPON THE INTERPRETATION NOW
CLAIMED.  HEARINGS BEFORE HOUSE COMMITTEE ON EDUCATION AND LABOR ON
H.R. 2033, 81ST CONG., 1ST SESS. 1165-1169.  TO USE THE 1949 SAVINGS
CLAUSE AS CONFIRMING THE CONSISTENCY, WITH THE STATUTE, OF THE
ADMINISTRATOR'S INTERPRETATION IS TO ASSUME THAT VERY CONSISTENCY IN
ORDER TO ESTABLISH IT. 

FN7  52 STAT. 1067, 29 U.S.C. SEC. 213(A)(10). 
..END :









SHAUGHNESSY V. UNITED STATES EX REL. ACCARDI 349 U.S. 280 


NO. 616.  ARGUED APRIL 22, 1955 - DECIDED MAY 23, 1955 - 219 F.2D 77,
REVERSED. 


IN A HEARING GRANTED PURSUANT TO THIS COURT'S JUDGMENT IN 347 U.S.
260, ACCARDI SOUGHT TO PROVE THAT DENIAL OF HIS APPLICATION FOR
SUSPENSION OF DEPORTATION UNDER SEC. 19(C) OF THE IMMIGRATION ACT OF
1917 WAS PREJUDGED THROUGH ISSUANCE BY THE ATTORNEY GENERAL OF A
CONFIDENTIAL LIST OF "UNSAVORY CHARACTERS," INCLUDING ACCARDI, AND
THAT, THEREFORE, THE BOARD OF IMMIGRATION APPEALS HAD NOT EXERCISED ITS
OWN DISCRETION, AS REQUIRED BY APPLICABLE REGULATIONS.  AFTER A FULL
HEARING, THE DISTRICT COURT FOUND THAT THE BOARD MEMBERS "REACHED THEIR
INDIVIDUAL AND COLLECTIVE DECISION ON THE MERITS, FREE FROM ANY
DICTATION OR SUGGESTION," AND DISMISSED THE WRIT OF HABEAS CORPUS. 
HELD:  THE JUDGMENT OF THE DISTRICT COURT IS SUSTAINED.  PP. 281-284. 

(A)  THIS COURT'S OPINION IN 347 U.S. 260 MEANT NO MORE THAN THAT
ACCARDI'S ALLEGATIONS SUFFICIENTLY CHARGED "DICTATION" BY THE ATTORNEY
GENERAL AND THAT ACCARDI WAS ENTITLED TO A HEARING ON THE QUESTION
WHETHER THE BOARD'S DENIAL OF DISCRETIONARY RELIEF REPRESENTED ITS OWN
UNTRAMMELLED DECISION OR ONE DICTATED BY THE ATTORNEY GENERAL.  P.
282. 

(B)  THE RECORD FULLY SUPPORTS THE DISTRICT COURT'S CONCLUSION THAT
THE BOARD'S DECISION REPRESENTED THE FREE AND UNDICTATED DECISION OF
EACH MEMBER.  PP. 282-283. 

(C)  IN THE FACE OF THE EVIDENCE, SPECULATION ON THE EFFECT OF
SUBCONSCIOUS PSYCHOLOGICAL PRESSURES PROVIDES INSUFFICIENT
JUSTIFICATION FOR REJECTING THE DISTRICT COURT'S FINDING AS "CLEARLY
ERRONEOUS."  P. 283. 

SHAUGHNESSY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE,
V. UNITED STATES EX REL. ACCARDI. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON IN THIS CASE TO REMOVE AMBIGUITIES FROM A PREVIOUS
OPINION WHICH, WHILE CLEAR ENOUGH TO THE TRIAL COURT, APPEARS TO HAVE
CONVEYED A TRIPLICITY OF MEANING TO THE COURT OF APPEALS.  A YEAR AGO
ACCARDI WAS HERE CONTESTING THE DISMISSAL OF HIS HABEAS CORPUS PETITION
IN WHICH HE ATTACKED THE REFUSAL OF THE BOARD OF IMMIGRATION APPEALS TO
GRANT HIS APPLICATION FOR SUSPENSION OF DEPORTATION.  ACCARDI V.
SHAUGHNESSY, 347 U.S. 260 (1954).  THE SOLE FOUNDATION OF HIS CLAIM WAS
THAT "THE ATTORNEY GENERAL IS DOING PRECISELY WHAT THE REGULATIONS
FORBID HIM TO DO:  DICTATING THE BOARD'S DECISION."*  347 U.S. 260, AT
267.  WE REMANDED THE PETITION TO THE TRIAL COURT FOR A HEARING ON THE
QUESTION OF "THE BOARD'S ALLEGED FAILURE TO EXERCISE ITS OWN
DISCRETION, CONTRARY TO EXISTING VALID REGULATIONS."  IT WAS ALLEGED ON
INFORMATION AND BELIEF THAT THE ATTORNEY GENERAL HAD PREPARED PRIOR TO
THE BOARD'S DECISION "A LIST OF ONE HUNDRED INDIVIDUALS WHOSE
DEPORTATION HE SOUGHT  ...  " AS "UNSAVORY CHARACTERS"; THAT ACCARDI'S
NAME WAS AMONG THE GROUP; AND THAT THE "LIST  ...  WAS CIRCULATED BY
THE DEPARTMENT OF JUSTICE AMONG ALL OF ITS EMPLOYEES CONNECTED WITH THE
IMMIGRATION SERVICE AND THE BOARD OF IMMIGRATION APPEALS" WITH THE
RESULT THAT "SINCE THAT TIME IT HAS BEEN IMPOSSIBLE FOR ACCARDI TO
SECURE FAIR CONSIDERATION OF HIS CASE."  WE CONCLUDED THAT, IF ACCARDI
COULD PROVE THAT THE BOARD HAD NOT EXERCISED ITS OWN DISCRETION IN THE
MATTER, HE SHOULD RECEIVE "A NEW HEARING BEFORE THE BOARD WITHOUT THE
BURDEN OF PREVIOUS PROSCRIPTION BY THE LIST." 

*MR. JUSTICE JACKSON, DISSENTING, JOINED ISSUE THUS: 

"WE DO NOT THINK THAT THE VALIDITY OF THE BOARD'S ORDER CAN BE
IMPEACHED BY SHOWING THAT THE ATTORNEY GENERAL OVERINFLUENCED MEMBERS
OF HIS OWN STAFF WHOSE OPINION IN ANY EVENT WOULD BE ONLY ADVISORY." 
347 U.S., AT 270. 

ON THE REMAND, THE DISTRICT COURT, AFTER A FULL HEARING, FOUND THAT
THE BOARD MEMBERS "REACHED THEIR INDIVIDUAL AND COLLECTIVE DECISION ON
THE MERITS, FREE FROM ANY DICTATION OR SUGGESTION  ... " AND AGAIN
DISMISSED THE WRIT.  THE COURT OF APPEALS REVERSED, ONE JUDGE
DISSENTING, 219 F.2D 77.  THE OPINION OF THE COURT BASED ITS CONCLUSION
ON THE GROUND THAT THE "ATTORNEY GENERAL'S STATEMENTS HAD UNCONSCIOUSLY
INFLUENCED THE BOARD MEMBERS SO THAT THEY FELT OBLIGED NOT TO EXERCISE
THEIR DISCRETION AND, WITHOUT DOING SO, TO DECIDE AGAINST ACCARDI." 
THE CHIEF JUDGE, CONCURRING IN THE RESULT, THOUGHT THAT OUR PRIOR
OPINION MERELY REQUIRED ACCARDI TO PROVE "THAT THERE WAS A LIST AS
ALLEGED, THAT HE WAS ON IT, AND THAT THIS FACT WAS KNOWN TO THE
BOARD."  THE DISSENTING JUDGE, ON THE OTHER HAND, READ OUR OPINION AS
MEANING "NO MORE  ...  THAN THAT ACCARDI'S ALLEGATIONS SUFFICIENTLY
CHARGED 'DICTATION' BY THE ATTORNEY GENERAL," ENTITLING ACCARDI TO A
HEARING ON THE QUESTION OF "WHETHER THE BOARD'S DENIAL OF DISCRETIONARY
RELIEF REPRESENTED ITS OWN UNTRAMMELLED DECISION OR ONE DICTATED BY THE
ATTORNEY GENERAL."  P. 90.  HE CONCLUDED THAT THE FINDING OF THE TRIAL
JUDGE WAS NOT CLEARLY ERRONEOUS.  WE AGREE WITH THE DISSENTING JUDGE
BOTH AS TO THE INTERPRETATION OF OUR PRIOR OPINION AND ITS APPLICATION
TO THE FACTS OF THIS CASE. 

THE OPINION OF THE COURT RECOGNIZED THAT, BEFORE ACCARDI WAS ENTITLED
TO ANOTHER BOARD HEARING, HE HAD TO PROVE THAT A MAJORITY OF THE BOARD
NOT ONLY KNEW OF THE "LIST" BUT WERE AFFECTED BY IT. HOWEVER, THE
OPINION CONCLUDED THAT THE BOARD'S POSITION THAT ITS JUDGMENT HAD NOT
BEEN AFFECTED BY "THE LIST" WAS INCREDIBLE.  WE FIND NOTHING INCREDIBLE
IN THE UNCONTRADICTED TESTIMONY PRODUCED BEFORE THE TRIAL JUDGE THROUGH
A NUMBER OF WITNESSES INCLUDING THE BOARD MEMBERS.  THE RECORD SHOWS
THAT IN FACT THERE WAS NO LIST, AS SUCH, AND HENCE THAT ONE COULD NOT
HAVE BEEN CIRCULATED AMONG THE MEMBERS OF THE BOARD; THAT THE FANFARE
OF PUBLICITY COMPLAINED OF WAS IN CONNECTION WITH THE ATTORNEY
GENERAL'S "DEPORTATION PROGRAM"; THAT THIS PROGRAM WAS NEVER PUBLICLY
RELATED TO ACCARDI UNTIL AFTER THE BOARD'S DECISION; THAT ONLY ONE
BOARD MEMBER KNEW ACCARDI WAS COVERED BY THE PROGRAM, WHILE TWO OTHERS
AND THE CHAIRMAN NEVER HAD SUCH KNOWLEDGE UNTIL AFTER THEIR DECISION;
THAT THE FIFTH MEMBER ASSERTED THAT HE "MAY HAVE KNOWN OF ACCARDI'S
INCLUSION IN THE PROGRAM BUT  ... COULDN'T SAY"; AND THAT NO PERSON IN
THE DEPARTMENT OF JUSTICE EVER DIRECTLY OR INDIRECTLY APPROACHED ANY
BOARD MEMBER AS TO THE MATTER.  IT SEEMS TO US THAT THE RECORD FULLY
SUPPORTS THE DISTRICT COURT'S CONCLUSION THAT THE BOARD'S DECISION
REPRESENTED THE FREE AND UNDICTATED DECISION OF EACH MEMBER.  AMONG THE
EIGHT WITNESSES WHO GAVE TESTIMONY CONCERNING THE MATTER, WAS THE
ATTORNEY GENERAL.  HE TESTIFIED THAT THERE WAS NO LIST; THAT HIS
INVESTIGATION "INDICATED THAT ACCARDI WAS A RACKETEER AND THAT IS THE
REASON HE MOVED TO DEPORT HIM"; THAT HE "NEVER AT ANY TIME DISCUSSED
THIS MATTER WITH ANY MEMBER OF THE BOARD."  IN THE FACE OF SUCH
EVIDENCE, WE DO NOT BELIEVE THAT SPECULATION ON THE EFFECT OF
SUBCONSCIOUS PSYCHOLOGICAL PRESSURES PROVIDES SUFFICIENT JUSTIFICATION
FOR REJECTING THE DISTRICT COURT'S FINDING AS CLEARLY ERRONEOUS. 

ACCARDI EMPHASIZES THE TRIAL COURT'S FINDING THAT THE BOARD HAD
NOTICE OF THE PROGRAM AND OF HIS INCLUSION THEREIN.  THIS "NOTICE," AT
MOST, WAS GIVEN ONLY TO THE CALENDAR CLERK OF THE BOARD SO THAT THE
HEARING OF CERTAIN CASES MIGHT BE EXPEDITED.  THE TESTIMONY THAT IT WAS
NOT FURNISHED TO MEMBERS OF THE BOARD OR THE CHAIRMAN IS UNDISPUTED. 

WE BELIEVE THAT ACCARDI HAS HAD THE HEARING REQUIRED BY OUR PREVIOUS
OPINION AND THAT HE HAS FAILED TO PROVE HIS CASE. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND
THAT OF THE DISTRICT COURT AFFIRMED.  REVERSED AND REMANDED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
DISSENTING. 

THERE IS DISAGREEMENT HERE AS THERE WAS IN THE COURT OF APPEALS AS TO
PRECISELY WHAT WAS MEANT BY OUR FORMER OPINION AND HOLDING IN THIS
CASE.  ACCARDI V. SHAUGHNESSY, 347 U.S. 260.  THIS IS NOT SURPRISING IN
VIEW OF AMBIGUITY OF LANGUAGE AT ITS BEST.  THE COURT GIVES OUR FORMER
OPINION A DIFFERENT AND IN SOME RESPECTS A NARROWER MEANING THAN I
WOULD.  I THINK THE COURT'S INTERPRETATION DEPRIVES ACCARDI OF A RIGHT
WHICH I THOUGHT OUR FIRST OPINION GUARANTEED HIM AS FAR AS POSSIBLE
UNDER EXISTING LAW - AN OPPORTUNITY TO HAVE HIS RIGHTS DETERMINED BY A
TRIBUNAL WHICH HAD NOT ALREADY MADE UP ITS MIND BASED ON ANONYMOUS
INFORMATION.  CONSIDERATION OF THIS BASIC ISSUE REQUIRES A MORE
EXTENSIVE REFERENCE TO THE RECORD IN THIS AND THE PRIOR CASE THAN THE
COURT HAS FOUND IT NECESSARY TO GIVE.  ACCARDI'S RIGHTS CANNOT BE
FAIRLY DETERMINED ON BROAD LEGAL GENERALIZATIONS OR BY MERELY
INTERPRETING OUR FORMER OPINION.  IF THAT OPINION MEANS NO MORE THAN
THE COURT INDICATES THEN ACCARDI'S RIGHT TO HAVE SUSPENSION OF HIS
DEPORTATION DETERMINED WITHOUT PREJUDGMENT BY THE ATTORNEY GENERAL HAS
NEVER BEEN PASSED ON. 

ACCARDI, BORN IN ITALY, CAME TO THIS COUNTRY IN 1932, WHEN HE WAS 21
YEARS OLD.  HE ENTERED THE UNITED STATES FROM CANADA, INTENDING TO
REMAIN HERE PERMANENTLY.  BUT HE HAD NO IMMIGRATION VISA.  UNDER THE
LAW THIS MADE HIM A DEPORTABLE ALIEN.  PROCEEDINGS TO DEPORT HIM WERE
BEGUN IN 1947.  HE MARRIED IN 1949 AND HAS ONE CHILD.  HIS WIFE AND
CHILD DEPEND ON HIM FOR SUPPORT.  BECAUSE OF HIS ORIGINAL ILLEGAL
ENTRY, ACCARDI WAS ORDERED DEPORTED. 

THE BASIS OF THIS CONTROVERSY IS NOT THE ORIGINAL ORDER OF
DEPORTATION BUT IS ACCARDI'S APPLICATION FOR SUSPENSION OF THAT ORDER
UNDER SEC. 19(C) OF THE IMMIGRATION ACT OF 1917.  (FN1) THAT SECTION
PROVIDES THAT UNDER CERTAIN CIRCUMSTANCES THE ATTORNEY GENERAL "MAY"
SUSPEND DEPORTATION OF AN ALIEN UPON PROOF THAT HE HAS HAD GOOD MORAL
CHARACTER FOR THE PRECEDING FIVE YEARS.  THE ACT DOES NOT REQUIRE THE
ATTORNEY GENERAL TO HOLD HEARINGS OR MAKE FINDINGS IN SUSPENSION
CASES.  BUT REGULATIONS PROPERLY PROMULGATED BY THE ATTORNEY GENERAL DO
PROVIDE FOR HEARINGS, AND AS WE HELD IN THE PRIOR ACCARDI CASE THOSE
REGULATIONS HAVE THE EFFECT OF LAW.  IN OTHER WORDS, OUR HOLDING WAS
THAT THE ATTORNEY GENERAL CAN NO MORE DENY THE SUSPENSION WITHOUT
HEARINGS PRESCRIBED BY THE REGULATIONS THAN HE COULD IF SUCH HEARINGS
HAD BEEN PRESCRIBED BY CONGRESS ITSELF.  AND AS WE EXPLAINED IN OUR
PRIOR OPINION, THE LAW THROUGH THE REGULATIONS NOW PROVIDES FOR ALIENS
LIKE ACCARDI TO OBTAIN "DECISIONS AT THREE SEPARATE ADMINISTRATIVE
LEVELS BELOW THE ATTORNEY GENERAL - HEARING OFFICER, COMMISSIONER, AND
THE BOARD OF IMMIGRATION APPEALS."  347 U.S., AT 266.  THE BOARD IS
APPOINTED BY THE ATTORNEY GENERAL AND CAN BE REMOVED BY HIM WHENEVER HE
PLEASES. 

THE HABEAS CORPUS PETITION CONSIDERED IN THIS CASE AND THE PRIOR ONE
ALLEGED THAT THE DEPORTATION ORDER AND THE ORDER DENYING FAVORABLE
DISCRETIONARY RELIEF WERE BOTH NULL AND VOID, VIOLATED DUE PROCESS AND
SHOULD BE SET ASIDE.  THE TWO CHIEF GROUNDS ALLEGED WERE:  (1) THE
DECISION TO DENY FAVORABLE DISCRETIONARY RELIEF TO ACCARDI "WAS PRE
JUDGED BY THE ATTORNEY GENERAL ON OCTOBER 2, 1952," WHICH WAS SIX
MONTHS BEFORE THE BOARD OF IMMIGRATION APPEALS FINALLY ACTED ON
ACCARDI'S APPLICATION FOR SUSPENSION; (2) THE ATTORNEY GENERAL HAD SO
WIDELY PUBLICIZED AND CIRCULATED STATEMENTS ABOUT HIS PLAN TO DEPORT
ACCARDI THAT IT WAS IMPOSSIBLE FOR THE ATTORNEY GENERAL'S SUBORDINATES
TO GRANT FAIR CONSIDERATION TO ACCARDI'S APPLICATION FOR SUSPENSION OF
DEPORTATION.  AN EXHIBIT ATTACHED TO THE PETITION SHOWED THAT THE
ATTORNEY GENERAL ON OCTOBER 2, 1952, PUBLICIZED THAT "THE JUSTICE
DEPARTMENT HOPES TO STRIP CITIZENSHIP RIGHTS FROM 100 FOREIGN-BORN
RACKETEERS AND DEPORT THEM" AND THAT ACCARDI WAS ONE OF THESE ALLEGED
RACKETEERS.  OTHER EXHIBITS SHOWED THAT AFTER THE BOARD OF IMMIGRATION
APPEALS DECISION AGAINST ACCARDI IN APRIL, 1953, IT WAS ANNOUNCED BY
THE DEPARTMENT OF JUSTICE THAT THE BOARD'S ACTION WAS TAKEN "UNDER THE
CURRENT DENATURALIZATION AND DEPORTATION PROGRAM OF ATTORNEY GENERAL
BROWNELL AGAINST TOP RACKETEERS AND SUBVERSIVES."  THE DISTRICT COURT
IN THE ORIGINAL PROCEEDINGS REFUSED TO PERMIT ACCARDI TO OFFER EVIDENCE
TO PROVE THAT THE ATTORNEY GENERAL HAD PRE-JUDGED HIS CASE AND THAT THE
CIRCUMSTANCES WERE SUCH THAT THE ATTORNEY GENERAL'S SUBORDINATES COULD
NOT GIVE A FAIR TRIAL.  THE DISTRICT COURT THEN SUMMARILY DISMISSED THE
CASE AND THE COURT OF APPEALS, ONE JUDGE DISSENTING, AFFIRMED.  206
F.2D 897.  IT WAS THAT CASE WE REVERSED IN OUR PRIOR OPINION THE
MEANING OF WHICH IS NOW IN CONTROVERSY. 

WHEN THE CASE REACHED US WE SAID IN PART AS FOLLOWS: 

"THE PETITION ALLEGES THAT THE ATTORNEY GENERAL INCLUDED THE NAME OF
PETITIONER IN A CONFIDENTIAL LIST OF 'UNSAVORY CHARACTERS' WHOM HE
WANTED DEPORTED; PUBLIC ANNOUNCEMENTS CLEARLY REVEALED THAT THE
ATTORNEY GENERAL DID NOT REGARD THE LISTING AS A MERE PRELIMINARY TO
INVESTIGATION AND DEPORTATION; TO THE CONTRARY, THOSE LISTED WERE
PERSONS WHOM THE ATTORNEY GENERAL 'PLANNED TO DEPORT.'  AND, IT IS
ALLEGED, THIS INTENTION WAS MADE QUITE CLEAR TO THE BOARD WHEN THE LIST
WAS CIRCULATED AMONG ITS MEMBERS.  IN FACT, THE ASSISTANT DISTRICT
ATTORNEY CHARACTERIZED IT AS THE 'ATTORNEY GENERAL'S PROSCRIBED LIST OF
ALIEN DEPORTEES.'  TO BE SURE, THE PETITION DOES NOT ALLEGE THAT THE
'ATTORNEY GENERAL ORDERED THE BOARD TO DENY DISCRETIONARY RELIEF TO THE
LISTED ALIENS.'  IT WOULD BE NAIVE TO EXPECT SUCH A HEAVY-HANDED WAY OF
DOING THINGS."  347 U.S., AT 267. 

POINTING OUT THAT "THE ALLEGATIONS ARE QUITE SUFFICIENT" WE WENT ON
TO SAY THAT: 

"IF PETITIONER CAN PROVE THE ALLEGATION, HE SHOULD RECEIVE A NEW
HEARING BEFORE THE BOARD WITHOUT THE BURDEN OF PREVIOUS PROSCRIPTION BY
THE LIST.  AFTER THE RECALL OR CANCELLATION OF THE LIST, THE BOARD MUST
RULE OUT ANY CONSIDERATION THEREOF AND IN ARRIVING AT ITS DECISION
EXERCISE ITS OWN INDEPENDENT DISCRETION, AFTER A FAIR HEARING, WHICH IS
NOTHING MORE THAN WHAT THE REGULATIONS ACCORD PETITIONER AS A RIGHT. 
OF COURSE, HE MAY BE UNABLE TO PROVE HIS ALLEGATION BEFORE THE DISTRICT
COURT; BUT HE IS ENTITLED TO THE OPPORTUNITY TO TRY."  ID., AT 268. 

I THINK THAT PETITIONER PROVED BEYOND ALL PERADVENTURE THAT THE
ATTORNEY GENERAL DID "PREJUDGE" ACCARDI'S CASE AS ALLEGED.  UNDER OUR
FORMER OPINION THIS WAS ENOUGH TO JUSTIFY RELIEF.  BUT THIS CRUCIAL
QUESTION WAS NOT PASSED ON AT ALL BY THE DISTRICT COURT IN THIS CASE. 
IT WENT ON THE THEORY THAT WE HELD THAT PETITIONER WAS ENTITLED TO
RELIEF ONLY IF HE COULD ESTABLISH THAT THE BOARD OF IMMIGRATION APPEALS
FELT ITSELF "DICTATED TO" BY THE ATTORNEY GENERAL SO THAT IT COULD NOT
GIVE A RECOMMENDATION BASED ON ITS OWN DISCRETION.  IN MY VIEW THIS WAS
AN UNWARRANTED NARROWING OF THE ISSUES RAISED.  BUT THE COURT TODAY
SEEMS TO ACCEPT THIS AS THE FULL SCOPE OF OUR PRIOR HOLDING.  GIVEN
THAT NARROW SCOPE, OUR HOLDING FELL FAR SHORT OF DECIDING THE ISSUES
WHICH WERE ACTUALLY PRESENTED AND WERE DUE TO BE DECIDED IF, AS WE
SAID, ACCARDI WAS ENTITLED TO "A FAIR HEARING, WHICH IS NOTHING MORE
THAN WHAT THE REGULATION ACCORDS PETITIONER AS A RIGHT."    IN THE
FINAL ANALYSIS UNDER BOTH STATUTE AND REGULATIONS THE DISCRETION TO BE
EXERCISED IS THAT OF THE ATTORNEY GENERAL.  DUE TO THE REGULATIONS,
HOWEVER, THAT DISCRETION CAN NO LONGER BE EXERCISED ARBITRARILY OR
WITHOUT HEARINGS.  A FAIR HEARING BY AN IMPARTIAL BOARD HAS BEEN
ESTABLISHED AS A PREREQUISITE TO FINAL EXERCISE OF DISCRETION BY THE
ATTORNEY GENERAL.  FAILURE TO AWAIT THESE REQUIRED HEARINGS AND
FINDINGS BEFORE DECIDING TO DEPORT IS THEREFORE A VIOLATION OF THE VERY
REGULATIONS THE ATTORNEY GENERAL HAS PRESCRIBED UNDER AUTHORITY OF
LAW.  THAT THE SUSPENSION OF DEPORTATION OF ACCARDI WAS PREJUDGED LONG
BEFORE THE BOARD OF IMMIGRATION APPEALS MADE ITS DECISION IS
ESTABLISHED BY THE UNDISPUTED TESTIMONY OF HON. JAMES P. MCGRANERY WHO
WAS THE ATTORNEY GENERAL ON OCTOBER 2, 1952.  HE TESTIFIED THAT HE DID
HAVE A PLANNED PROGRAM AT THAT TIME FOR THE DEPORTATION OF SELECTED
ALIENS.  SHORTLY THEREAFTER HE GAVE OUT A STATEMENT THAT THE ARREST OF
A CERTAIN NAMED ALIEN "WAS ANOTHER STEP IN HIS DENATURALIZATION AND
DEPORTATION PROGRAM AIMED AT RIDDING THE NATION OF UNDESIRABLE ALIENS
ENGAGED IN RACKETEERING AND OTHER CRIMINAL ACTIVITIES."  THE ATTORNEY
GENERAL TESTIFIED THAT THIS STATEMENT ACCURATELY REFLECTED HIS
PROGRAM.  HE ALSO TESTIFIED THAT "JOSEPH ACCARDI'S CASE WAS ONE OF THE
EARLIEST CASES SUBMITTED, AND HIS CASE WAS ALREADY ON APPEAL AT THE
TIME  ... .  BUT MY INVESTIGATION AND THE RECORD OF ACCARDI PROVED HIM,
TO MY SATISFACTION, TO BE A RACKETEER.  THAT IS WHY I PUT HIM ON
THERE."  IN TESTIFYING ABOUT THE BEGINNING OF HIS DEPORTATION PROGRAM,
THE ATTORNEY GENERAL SAID, "I HAD A CONFERENCE VERY EARLY IN MY
ADMINISTRATION WITH JOHN EDGAR HOOVER.  I ASKED HIM TO PREPARE FOR ME,
AFTER COMBING HIS RECORDS, NAMES OF PERSONS WHO WERE ENGAGED IN
SUBVERSIVE ACTIVITIES AND SUBJECT TO DEPORTATION,  ... RACKETEERS AND
UNDESIRABLES WHO WERE HERE IN THE COUNTRY AND SUBJECT TO DEPORTATION
...  ."  TO CARRY OUT HIS PROGRAM THE ATTORNEY GENERAL REQUIRED A
"PROGRESS REPORT" TO BE SUBMITTED TO HIM EVERY DAY CONCERNING THE
ACTIVITIES OF THE PREVIOUS DAY.  ACCARDI, HE SAID, HAD BEEN DEFINED BY
HIM AS A RACKETEER BECAUSE OF INFORMATION RECEIVED FROM THE FBI, AND
THAT WAS THE REASON HE "MOVED TO DEPORT HIM."  THE RECORD SHOWS THAT
ATTORNEY GENERAL BROWNELL CONTINUED TO CARRY OUT THE PARTICULAR
DEPORTATION PROGRAM ATTORNEY GENERAL MCGRANERY HAD BEGUN.  ON APRIL 3,
THE DAY THE BOARD OF IMMIGRATION APPEALS DECIDED AGAINST ACCARDI,
ATTORNEY GENERAL BROWNELL ISSUED A PRESS RELEASE ANNOUNCING THAT
"ACCARDI, KNOWN AS A NEW JERSEY RACKETEER, IS A NATIVE OF SICILY,
ITALY, AND BROTHER OF SAMUEL ACCARDI AGAINST WHOM DENATURALIZATION
PROCEEDINGS ARE PENDING IN THE FEDERAL COURT AT NEWARK."  LATER THE
ATTORNEY GENERAL IN A SPEECH REFERRED TO ACCARDI AS AN "UNDESIRABLE,"
AND AN ASSISTANT ATTORNEY GENERAL IN A SPEECH LISTED ACCARDI AMONG A
NUMBER OF SO-CALLED "NATIONALLY KNOWN HOODLUMS WHO ARE THE OBJECTS OF
THE PROGRAM." 

IT IS SIGNIFICANT THAT ON THE VERY DAY ATTORNEY GENERAL BROWNELL
REFERRED TO ACCARDI AS A "RACKETEER," THE BOARD OF IMMIGRATION APPEALS
FOUND AS A FACT FROM EVIDENCE THAT HE WAS "CONSIDERED A PERSON OF GOOD
MORAL CHARACTER."  MOREOVER, THERE WAS NO EVIDENCE BEFORE THE BOARD TO
SHOW THAT ACCARDI WAS OR EVER HAD BEEN A "RACKETEER."  THE RECORD
THEREFORE ESTABLISHES THAT THE ATTORNEY GENERAL NOT ONLY PREJUDGED
ACCARDI'S CASE AGAINST HIM BUT EVIDENTLY DID SO ON THE BASIS OF
ANONYMOUS INFORMATION THAT HE WAS A RACKETEER.  IT MAY BE AS JUDGE
FRANK SUGGESTED THAT IN SO CHARACTERIZING ACCARDI THE ATTORNEY GENERAL
CONFUSED HIM WITH SOMEONE ELSE.  HOWEVER THIS MAY BE, THE RECORD LEAVES
NO DOUBT THAT THE ATTORNEY GENERAL'S OFFICE DECIDED TO DEPORT ACCARDI
ON THE GROUND THAT HE WAS A "RACKETEER" AND THAT THIS CHARACTERIZATION
WAS CONTINUED BY THE ATTORNEY GENERAL LONG AFTER THE BOARD HAD REFUSED
TO SUSPEND ACCARDI'S DEPORTATION ALTHOUGH FINDING THAT HE HAD A GOOD
MORAL CHARACTER.  THE ATTORNEY GENERAL'S PREJUDGMENT DEPRIVED ACCARDI
OF THE BENEFIT OF THE ATTORNEY GENERAL'S DISCRETION FAIRLY EXERCISED
AFTER A HEARING AS THE LAW PRESCRIBES.  FOR THIS REASON THE CASE SHOULD
BE AFFIRMED. 

THERE ARE ALSO OTHER REASONS WHY I THINK THIS JUDGMENT SHOULD BE
AFFIRMED AND THE CASE SENT BACK TO THE BOARD OF IMMIGRATION APPEALS TO
CARRY OUT THE DIRECTIONS OF THE COURT OF APPEALS.  WHATEVER THIS
COURT'S PRIOR OPINION MAY HAVE MEANT, THE CASE SHOULD NOT GO OFF ON THE
DISTRICT COURT'S FINDING OF FACT THAT THE BOARD OF IMMIGRATION APPEALS
ACTUALLY EXERCISED ITS OWN UNTRAMMELED DISCRETION DESPITE WHAT THE
ATTORNEY GENERAL SAID OR DID.  THAT FINDING RESTS ALMOST ENTIRELY ON
TESTIMONY GIVEN BY THE BOARD MEMBERS THEMSELVES DENYING THAT THEY WERE
INFLUENCED BY THE ATTORNEY GENERAL'S PLANNED PROGRAM TO DEPORT CERTAIN
NAMED ALIENS.  I DEEM IT BAD PRACTICE TO SUBJECT ADMINISTRATIVE
OFFICERS, ACTING IN A QUASI-JUDICIAL CAPACITY, TO A PROBE OF THE MENTAL
PROCESSES WHICH LED THEM TO DECIDE AS THEY DID.  THAT IS WHAT THE COURT
SANCTIONS HERE.  WE HAVE ALREADY DECIDED THAT THIS PRACTICE IS NO MORE
DESIRABLE THAN THAT OF PROBING THE MINDS OF JUDGES TO TRY TO FATHOM THE
REASONS WHICH PROMPT THEIR DECISIONS.  UNITED STATES V. MORGAN, 313
U.S. 409, 421-422. 

WHATEVER THE BOARD MEMBERS' STATE OF MIND MAY HAVE BEEN, I THINK THE
ATTORNEY GENERAL'S PUBLICATIONS PLACED THE BOARD OF IMMIGRATION
APPEALS, THE MEMBERS OF WHICH HOLD OFFICE COMPLETELY AT HIS WILL, IN A
POSITION THAT NO JUDICIAL AGENCY SHOULD BE.  COPIES OF NEWSPAPER
INTERVIEWS AND SPEECHES MADE BY TWO ATTORNEYS GENERAL AND AN ASSISTANT,
WHICH APPEAR IN THE RECORD, PROCLAIM A STRONG DESIRE AND PURPOSE TO
CARRY OUT A PROGRAM UNDER WHICH ACCARDI AND A LARGE GROUP OF OTHERS
NAMED FROM TIME TO TIME WERE TO BE STRIPPED OF CITIZENSHIP AND DEPORTED
FROM THIS COUNTRY.  THE DISTRICT COURT FOUND THAT NOTICE OF THIS
PROGRAM WAS GIVEN TO THE BOARD.  THIS COURT, HOWEVER, DISTINGUISHES
BETWEEN INFORMATION GIVEN TO THE SECRETARY OF THE BOARD AND TO THE
BOARD ITSELF.  BUT A PROGRAM OF THIS KIND, SO WELL-PUBLICIZED THAT IT
WENT TO EVERY PART OF THE UNITED STATES AND TO VARIOUS POLITICAL
GATHERINGS, COULD HARDLY BE EXPECTED NOT TO PERMEATE THE BOARD OF
IMMIGRATION APPEALS WORKING IN THE DEPARTMENT OF JUSTICE IN
WASHINGTON.  ORDERS AND PROCLAMATIONS OF THE ATTORNEY GENERAL, HEAD OF
THAT DEPARTMENT, CANNOT BE THOUGHT TO HAVE SO LITTLE INFLUENCE OR
EFFECT IN HIS DEPARTMENT.  IT IS TRUE THAT THE STATEMENTS AND PROGRAM
OF THE ATTORNEY GENERAL ARE NOW REFERRED TO AS INTENDED TO DO NO MORE
THAN "EXPEDITE" ACTION BY THE ATTORNEY GENERAL'S SUBORDINATES,
INCLUDING THE BOARD OF IMMIGRATION APPEALS.  BUT THIS PROGRAM ACCORDING
TO THE EVIDENCE OCCUPIED THE MOST PROMINENT PLACE IN THE DEPARTMENT'S
ACTIVITIES.  DAILY REPORTS HAD TO BE MADE TO THE DEPARTMENT BY THOSE
MEN WHO CARRIED ON THE PROGRAM.  THEY WERE SELECTED BECAUSE OF THEIR
OUTSTANDING ABILITY AND AGGRESSIVENESS.  SO WHAT WE HAVE IS NOT MERELY
A FINDING BY THE DISTRICT COURT THAT THE ATTORNEY GENERAL'S PROGRAM WAS
SENT TO THE BOARD.  WE HAVE IN ADDITION A SHOWING OF DEPARTMENTAL
EMPHASIS ON THAT PROGRAM WHICH MAKES IT IMPOSSIBLE TO BELIEVE THAT THE
SUBORDINATES WERE OBLIVIOUS TO THE ATTORNEY GENERAL'S GREAT INTEREST IN
DEPORTING THE PARTICULAR MEN WHOSE NAMES APPEARED ON HIS "PROSCRIBED
LIST" OR "PROGRAM" OR "STATISTICAL DATA" AS IT WAS VARIOUSLY TERMED BY
GOVERNMENT WITNESSES.  THE REQUIREMENT FOR FAIR ADMINISTRATION OF
JUSTICE IS NOT SATISFIED BY A MERE FINDING BASED ON BOARD MEMBERS'
TESTIMONY THAT THIS PARTICULAR BOARD AT THIS PARTICULAR TIME WAS STRONG
ENOUGH TO RESIST THE PLAIN IMPLICATIONS OF THE ATTORNEY GENERAL'S
STRONG PROGRAM FOR DEPORTATION. 

THE INEVITABILITY OF WHAT WAS TO HAPPEN TO ACCARDI AFTER HIS NAME WAS
PUT ON THE "ATTORNEY GENERAL'S PROSCRIBED LIST OF ALIEN DEPORTEES" IS
RATHER STRONGLY INDICATED BY THE FACT THAT NOT ONE OF THESE ALIENS HAS
EVER BEEN GRANTED FINAL DISCRETIONARY RELIEF ALLOWING HIM TO REMAIN IN
THIS COUNTRY.  IN AN EFFORT TO SHOW THAT ALIENS ON THE LIST ARE NOT
BARRED FROM DISCRETIONARY RELIEF, THE GOVERNMENT REFERS TO FOUR
SPECIFIC CASES.  IN TWO OF THOSE CASES, HOWEVER, THE ALIENS WERE NOT
DEPORTABLE UNDER EXISTING LAW AND THUS THE BOARD DID NOT REACH THE
QUESTION OF DISCRETIONARY RELIEF.  IN THE THIRD CASE THE ALIEN WAS
ALLOWED TO LEAVE VOLUNTARILY INSTEAD OF BEING FORCIBLY DEPORTED AS HE
OTHERWISE WOULD HAVE BEEN.  IN THE FOURTH CASE THE BOARD DID ACTUALLY
RECOMMEND THAT DEPORTATION BE SUSPENDED.  BUT THIS IS NOT THE FULL
PICTURE.  THE HEARING OFFICER WHO HAD RECOMMENDED THE ALIEN'S IMMEDIATE
DEPORTATION WAS INVESTIGATED AFTER THE BOARD'S RECOMMENDATION OF
SUSPENSION.  THE DEPARTMENT OF JUSTICE CONCLUDED THAT HE HAD BEEN
DERELICT IN NOT FULLY DEVELOPING "IMPORTANT DEROGATORY INFORMATION"
CONCERNING THE ALIEN AND ANNOUNCED THAT HE HAD BEEN RELIEVED OF DUTY
AND THAT DISCIPLINARY ACTION WOULD BE TAKEN AGAINST HIM.  (FN2)  AT THE
INSTANCE OF THE DEPARTMENT, AS THE GOVERNMENT'S BRIEF POINTS OUT, THE
BOARD GRANTED A REHEARING ON THE ALIEN'S RIGHT TO SUSPENSION WHICH
APPEARS TO BE STILL PENDING.  THUS THE ATTORNEY GENERAL CANNOT POINT TO
A SINGLE CASE IN WHICH ONE OF THE PROSCRIBED ALIENS HAS BEEN FINALLY
GRANTED A DISCRETIONARY SUSPENSION. 

IT IS MY OPINION THAT PETITIONER PROVED THAT THE ATTORNEY GENERAL'S
PUBLICIZED PROGRAM MADE IT IMPOSSIBLE TO EXPECT HIS SUBORDINATES TO
GIVE ACCARDI'S APPLICATION THAT FAIR CONSIDERATION WHICH THE LAW
REQUIRES.  THE USE OF ADMINISTRATIVE BODIES AS AGENCIES OF JUSTICE
UNDER LAW IS SERIOUSLY WEAKENED BY PROCEEDINGS SUCH AS THESE.  WE
SHOULD ADHERE TO THE SPIRIT OF OUR FIRST OPINION AND REQUIRE THAT THE
BOARD HOLD A FAIR HEARING IN ACCARDI'S CASE AFTER "THE RECALL OR
CANCELLATION" OF THIS "LIST" AS THE COURT OF APPEALS ORDERED.  (FN3)
THE IMPLICATIONS OF THE ATTORNEY GENERAL'S PROGRAM AND STATEMENTS MUST
BE REPUDIATED BEFORE THIS BOARD CAN BE CONSIDERED THE KIND OF FREE AND
IMPARTIAL TRIBUNAL WHICH OUR SYSTEM OF JUSTICE DEMANDS. 

FN1  62 STAT. 1206, 8 U.S.C. SEC. 155(C). 

FN2  THIS INFORMATION IS CONTAINED IN A DEPARTMENT OF JUSTICE PRESS
RELEASE DATED APRIL 6, 1955, WHICH APPEARS IN ACCARDI'S SUPPLEMENTAL
BRIEF.  THE DEPARTMENT HAS NOT DENIED THIS PRESS RELEASE. 

FN3  THE COURT OF APPEALS SAID: 

"10.  THE ATTORNEY GENERAL, ON APRIL 23, 1954, A FEW DAYS AFTER THE
SUPREME COURT'S DECISION CAME DOWN, ISSUED INSTRUCTIONS THAT THE BOARD
SHOULD NOT BE INFLUENCED IN ITS DECISIONS BY HIS 'PROGRAM' BUT, IN EACH
CASE, SHOULD EXERCISE INDEPENDENT JUDGMENT. 

"11.  ACCARDI MUST BE RELEASED FROM CUSTODY UNLESS, WITHIN A
REASONABLE TIME, THE BOARD, UNDER THOSE NEW INSTRUCTIONS, HOLDS A NEW
HEARING AND RENDERS A NEW DECISION ON HIS APPLICATION FOR DISCRETIONARY
RELIEF.  ALTHOUGH THE BOARD HAS ALREADY FOUND THAT HE HAS A GOOD MORAL
CHARACTER, HE SHOULD HAVE THE OPPORTUNITY AT THE NEW HEARING TO OFFER
EVIDENCE THAT HE IS NOT AND NEVER HAS BEEN A RACKETEER.  FOR IT MAY BE
THAT, IN SO CHARACTERIZING ACCARDI, THE ATTORNEY GENERAL HAS CONFUSED
HIM WITH SOMEONE ELSE OF THE SAME NAME."  219 F.2D 77, 83. 
..END :
















BISSO V. INLAND WATERWAYS CORPORATION 349 U.S. 85 


NO. 50.  ARGUED FEBRUARY 28, 1955 - DECIDED MAY 16, 1955 - 211 F.2D 401,
REVERSED. 


1.  A TOWBOAT OWNER MAY NOT VALIDLY CONTRACT AGAINST ALL LIABILITY FOR
HIS OWN NEGLIGENT TOWAGE.  PP. 85-95. 

(A)  THIS COURT NOW ACCEPTS AS CONTROLLING A JUDICIAL RULE, BASED ON
PUBLIC POLICY, WHICH INVALIDATES CONTRACTS RELEASING TOWERS FROM ALL
LIABILITY FOR THEIR NEGLIGENCE.  P. 90. 

(B)  THE STEAMER SYRACUSE, 12 WALL.  167, AND THE WASH GRAY, 277 U.S.
66, FOLLOWED.  PP. 86-92. 

(C)  SUN OIL CO. V. DALZELL TOWING CO., 287 U.S. 291, DISTINGUISHED. 
PP. 92-94. 

2.  THE RULE AGAINST CONTRACTUAL EXEMPTION OF A TOWBOAT OWNER FROM
RESPONSIBILITY FOR HIS OWN NEGLIGENCE CANNOT BE DEFEATED BY PROVIDING
IN A CONTRACT THAT ALL EMPLOYEES OF A TOWBOAT SHALL BE EMPLOYEES OF THE
TOWED VESSEL, WHEN THE LATTER "EMPLOYMENT" IS PURELY A FICTION.  PP. 94
95. 

BISSO, RECEIVER, V. INLAND WATERWAYS CORPORATION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER A TOWBOAT MAY VALIDLY CONTRACT
AGAINST ALL LIABILITY FOR ITS OWN NEGLIGENT TOWAGE.  SINCE THERE IS NO
CONTROLLING STATUTE THE QUESTION MUST BE DECIDED AS A PART OF THE
JUDICIALLY CREATED ADMIRALTY LAW.  FEDERAL COURTS HAVE DISAGREED AS TO
WHETHER THERE IS OR SHOULD BE A JUDICIAL RULE INVALIDATING SUCH
CONTRACTS.  CALLING ATTENTION TO THIS UNCERTAINTY, THE DISTRICT COURT,
SITTING IN ADMIRALTY, SUSTAINED A CONTRACTUAL PROVISION EXEMPTING
RESPONDENT TOWBOAT OWNER FROM LIABILITY FOR NEGLIGENCE AND ENTERED
JUDGMENT ACCORDINGLY.  114 F. SUPP. 713.  THE COURT OF APPEALS
AFFIRMED.  211 F.2D 401.  WE GRANTED CERTIORARI TO SETTLE THE
QUESTION.  348 U.S. 811. 

THE RECORD INCLUDING THE FINDINGS OF FACT SHOWS:  PETITIONER'S OIL
BARGE BISSO WHILE BEING TOWED UP THE MISSISSIPPI RIVER BY THE
RESPONDENT'S STEAM TOWBOAT CAIRO COLLIDED WITH A BRIDGE PIER AND SANK. 
AT THE TIME, THE BARGE HAD NO MOTIVE POWER, STEERING APPARATUS,
OFFICERS OR CREW, ITS MOVEMENTS BEING COMPLETELY CONTROLLED BY THE
CAIRO.  NEGLIGENT TOWAGE BY THOSE OPERATING THE CAIRO CAUSED THE
COLLISION.  CONSEQUENTLY, RESPONDENT, OWNER OF THE CAIRO, WOULD HAVE
BEEN REQUIRED TO PAY PETITIONER DAMAGES UNLESS RELIEVED OF LIABILITY BY
CERTAIN CLAUSES IN THE TOWAGE CONTRACT.  ONE PROVIDES THAT THE TOWING
MOVEMENT SHOULD BE AT THE "SOLE RISK" OF THE BARGE, AND A SECOND
PROVIDES THAT MASTERS, CREWS AND EMPLOYEES OF THE TOWBOAT CAIRO SHOULD
"IN THE PERFORMANCE OF SAID SERVICE, BECOME AND BE THE SERVANTS" OF THE
BARGE BISSO.  THE COURT OF APPEALS CONSTRUED BOTH THESE CLAUSES AS
RELIEVING RESPONDENT FROM LIABILITY FOR ITS NEGLIGENCE AND HELD BOTH
VALID. 

A RELEASE-FROM-LIABILITY CLAUSE IN A TOWAGE CONTRACT WAS FIRST
CONSIDERED BY THIS COURT IN 1871 IN THE STEAMER SYRACUSE, 12 WALL. 
167.  THERE NEGLIGENT TOWAGE BY THE SYRACUSE DAMAGED A CANALBOAT BEING
TOWED.  TO ESCAPE LIABILITY OWNERS OF THE TOWBOAT RELIED ON A
CONTRACTUAL AGREEMENT THAT "THE CANAL-BOAT WAS BEING TOWED AT HER OWN
RISK."  NOTWITHSTANDING THE AGREEMENT, THIS COURT HELD THAT THE TOWBOAT
"MUST BE VISITED WITH THE CONSEQUENCES" OF ITS NEGLIGENCE.  (FN1)  FOR
MANY YEARS THE SYRACUSE SEEMS TO HAVE BEEN GENERALLY ACCEPTED AS EITHER
(1) CONSTRUING A CONTRACT TO "TOW AT OWN RISK" AS NOT INCLUDING AN
EXEMPTION FROM NEGLIGENCE, OR (2) HOLDING INVALID AS AGAINST PUBLIC
POLICY A CONTRACT WHICH EXEMPTS A TOWER FROM HIS NEGLIGENCE.  (FN2) 

IN 1909 THE SYRACUSE WAS REPUDIATED BY THE SECOND CIRCUIT IN THE
OCEANICA, 170 F. 893.  THAT COURT CONSTRUED A CONTRACT REQUIRING A
TOWED VESSEL TO "ASSUME ALL RISKS" AS EXEMPTING THE TOWER FROM
RESPONSIBILITY FOR ITS NEGLIGENCE; IT ALSO HELD, OVER STRONG DISSENT,
THAT THE CONTRACT WAS NOT INVALID AS AGAINST PUBLIC POLICY.  AND ON
REHEARING THE COURT CONCEDED THAT "THE DECISION OF THE MAJORITY OF THE
COURT AS TO THE RIGHT OF A TUG TO CONTRACT AGAINST HER OWN NEGLIGENCE
IS A DEPARTURE FROM PREVIOUS DECISIONS."  THE COURT WENT ON TO EXPRESS
HOPE THAT THE QUESTION WOULD "BE SET AT REST IN THIS CASE BY THE
SUPREME COURT."  CERTIORARI WAS DENIED, (FN3) HOWEVER, AND COURTS IN
THE SECOND CIRCUIT CONTINUED TO FOLLOW THE NEWLY ANNOUNCED OCEANICA
DOCTRINE.  (FN4)  BUT OTHER CIRCUITS CONTINUED TO REFUSE TO ALLOW
TOWBOATS BY CONTRACT TO ESCAPE LIABILITY FOR THEIR NEGLIGENT TOWAGE. 
(FN5) 

IT WAS IN THAT STATE OF INTERCIRCUIT CONFLICT THAT THIS COURT AGAIN,
IN 1928, CONSIDERED THE EFFECT OF A CONTRACT CLAIMED TO EXEMPT A
TOWBOAT FROM ITS NEGLIGENCE.  THE WASH GRAY, 277 U.S. 66.  (FN6)  THE
CONTRACT INVOLVED PROVIDED THAT THE TOWBOAT SHOULD NOT BE "RESPONSIBLE
IN ANY WAY FOR LOSS OR DAMAGE" TO THE WASH GRAY, THE VESSEL BEING
TOWED.  THIS COURT WAS URGED TO FOLLOW THE OCEANICA.  BUT COUNSEL FOR
THE WASH GRAY, RELYING ON THE SYRACUSE, INSISTED THAT RECOVERY FOR
"ACTIONABLE NEGLIGENCE IS NOT BARRED BY RELEASE IN CONTRACT FOR
TOWAGE."  (FN7)  WITHOUT MENTION OF THE OCEANICA THIS COURT SAID:  "WE
DO NOT THINK THAT THE TOWING CONTRACT HAS THE EFFECT CLAIMED FOR IT BY
THE COMPANIES.  IT DID NOT RELEASE THE (TOWBOAT)  ...  FROM ANY LOSS OR
DAMAGE TO THE 'WASH GRAY' DUE TO THE NEGLIGENCE OF THE MASTER OR CREW
OF THE TOWING VESSEL  ...  .  THE RULE LAID DOWN BY THIS COURT IN THE
STEAMER SYRACUSE  ...  COVERS THE POINT."  277 U.S., AT 73.  THE
CONTRACTS IN THE SYRACUSE AND THE WASH GRAY WERE WORDED QUITE
DIFFERENTLY, AND THERE IS LITTLE INDICATION THAT THE "RULE" THE COURT
HAD IN MIND WAS ONE OF MERE CONTRACTUAL INTERPRETATION.  RATHER A
PUBLIC POLICY OBJECTION TO SUCH CONTRACTS WAS INDICATED BY THE COURT'S
QUOTING FROM THAT PART OF THE SYRACUSE OPINION WHICH POINTED OUT THAT
DESPITE THE CONTRACT THERE THE TOWBOAT HAD TO BEAR THE CONSEQUENCES OF
ITS NEGLIGENCE EVEN THOUGH THE LAW HAD NOT IMPOSED ON IT THE
OBLIGATIONS RESTING ON A COMMON CARRIER.  (FN8) 

IT IS NEVERTHELESS ARGUED THAT THE SYRACUSE AND THE WASH GRAY DID NOT
ANNOUNCE A RULE OF PUBLIC POLICY AGAINST RELEASE-FROM-NEGLIGENCE
CONTRACTS BUT DECIDED NO MORE THAN WHAT THE TOWAGE CONTRACTS IN THOSE
CASES MEANT.  STRONG ARGUMENTS CAN BE MADE IN SUPPORT OF THIS
CONTENTION BUT WE THINK STRONGER ARGUMENTS CAN BE MADE AGAINST IT.  THE
SYRACUSE WAS DECIDED IN AN ERA OF MANIFEST JUDICIAL HOSTILITY TOWARD
RELEASE-FROM-NEGLIGENCE CONTRACTS, PARTICULARLY THOSE MADE BY
BUSINESSES DEALING WIDELY WITH THE PUBLIC AND HAVING POTENTIAL
MONOPOLISTIC POWERS.  (FN9)  THAT HOSTILITY CAUSED THIS COURT TWO YEARS
LATER TO DECLARE THAT PUBLIC POLICY FORBADE COMMON CARRIERS TO MAKE
SUCH CONTRACTS.  (FN10)  THE NEXT YEAR TELEGRAPH COMPANY CONTRACTS WERE
BROUGHT UNDER THE SAME BAN ALTHOUGH THE COURT STATED THEY WERE NOT
COMMON CARRIERS.  (FN11)  LARGELY BECAUSE OF THIS GENERAL JUDICIAL
ATTITUDE AND THE INFLUENCE OF THE SYRACUSE NO TOWAGE RELEASE-FROM
NEGLIGENCE CLAUSE APPEARS TO HAVE BEEN ENFORCED BY ANY COURT FOR 38
YEARS.  DURING THAT PERIOD AND LATER ENFORCEMENT WAS REFUSED IN TWO
WAYS - EITHER BY GIVING SUCH CONTRACTS A VERY NARROW CONSTRUCTION OR BY
HOLDING THEM TO BE AGAINST PUBLIC POLICY.  ONE COURT EVEN EXPRESSLY
DECLARED IT TO BE "CONTRARY TO PUBLIC POLICY TO SO CONSTRUE" A CONTRACT
THAT A TOWER COULD BE ALLOWED TO GO CLEAR OF ALL LIABILITY FOR HIS OWN
NEGLIGENCE.  (FN12) WHEN THE SECOND CIRCUIT BELATEDLY DEPARTED FROM THE
SYRACUSE OTHER COURTS STILL REFUSED TO ENFORCE TOWERS' STIPULATIONS
AGAINST THEIR NEGLIGENCE.  AND WHEN THIS COURT WAS URGED IN THE WASH
GRAY TO REPUDIATE THE SYRACUSE BY FOLLOWING THE OCEANICA THE ANSWER WAS
AN EMPHATIC REITERATION AND APPROVAL OF THE LANGUAGE AND HOLDING OF THE
SYRACUSE.  VIEWED IN LIGHT OF THIS HISTORY, WE THINK THE SYRACUSE, THE
WASH GRAY AND INTERVENING LOWER COURT CASES TOGETHER STRONGLY POINT TO
THE EXISTENCE OF A JUDICIAL RULE, BASED ON PUBLIC POLICY, INVALIDATING
CONTRACTS RELEASING TOWERS FROM ALL LIABILITY FOR THEIR NEGLIGENCE. 
(FN13)  BECAUSE OF THIS JUDICIAL HISTORY AND COGENT REASONS IN SUPPORT
OF A RULE OUTLAWING SUCH CONTRACTS WE NOW, DESPITE PAST UNCERTAINTY AND
DIFFERENCE AMONG THE CIRCUITS, ACCEPT THIS AS THE CONTROLLING RULE. 

THIS RULE IS MERELY A PARTICULAR APPLICATION TO THE TOWAGE BUSINESS
OF A GENERAL RULE LONG USED BY COURTS AND LEGISLATURES TO PREVENT
ENFORCEMENT OF RELEASE-FROM-NEGLIGENCE CONTRACTS IN MANY RELATIONSHIPS
SUCH AS BAILORS AND BAILEES, (FN14) EMPLOYERS AND EMPLOYEES, (FN15)
PUBLIC SERVICE COMPANIES AND THEIR CUSTOMERS.  (FN16)  THE TWO MAIN
REASONS FOR THE CREATION AND APPLICATION OF THE RULE HAVE BEEN (1) TO
DISCOURAGE NEGLIGENCE BY MAKING WRONGDOERS PAY DAMAGES, AND (2) TO
PROTECT THOSE IN NEED OF GOODS OR SERVICES FROM BEING OVERREACHED BY
OTHERS WHO HAVE POWER TO DRIVE HARD BARGAINS.  (FN17)  THESE TWO
REASONS ARE NO LESS APPLICABLE TODAY THAN WHEN THE SYRACUSE AND THE
WASH GRAY WERE DECIDED.  AND BOTH REASONS APPLY WITH EQUAL FORCE
WHETHER TUGS OPERATE AS COMMON CARRIERS OR CONTRACT CARRIERS.  (FN18)
THE DANGERS OF MODERN MACHINES MAKE IT ALL THE MORE NECESSARY THAT
NEGLIGENCE BE DISCOURAGED.  AND INCREASED MARITIME TRAFFIC OF TODAY
MAKES IT NOT LESS BUT MORE IMPORTANT THAT VESSELS IN AMERICAN PORTS BE
ABLE TO OBTAIN TOWAGE FREE OF MONOPOLISTIC COMPULSIONS. 

THE PRACTICAL RESULT OF LEAVING TOWERS WHOLLY FREE TO CONTRACT
AGAINST ALL LIABILITY FOR THEIR NEGLIGENCE IS STRIKINGLY ILLUSTRATED IN
AN ENGLISH CASE.  THE PORT OF LONDON CONTROLLED AND OPERATED ALL TUGS
IN THE HARBOR AND BY LAW NO SHIP COULD ENTER WITHOUT THE AID OF PORT
AUTHORITY TUGS.  BUT NO SHIPOWNER COULD GET A PORT TUG UNLESS HE FIRST
SIGNED A CONTRACT AGREEING TO BE LIABLE FOR ALL DAMAGES CAUSED BY THE
NEGLIGENCE OF THE TUG'S EMPLOYEES.  UNDER SUCH A CONTRACT THE COURT
ALLOWED THE PORT AUTHORITY TO RECOVER DAMAGES FROM A SHIP TOWED FOR
INJURIES TO THE PORT'S TUG CAUSED BY NEGLIGENCE OF THE PORT'S EMPLOYEES
RUNNING THE TUG.  (FN19)  SUCH A RESULT WOULD BE IMPOSSIBLE UNDER THE
RULE WE ACCEPT AS CONTROLLING. 

IT IS CONTENDED THAT THE TOWAGE CONTRACT RULE WE HAVE ACCEPTED WAS
REJECTED BY THIS COURT IN SUN OIL CO. V. DALZELL TOWING CO., 287 U.S.
291.  (FN20)  WE DISAGREE.  UNLIKE THE SYRACUSE, THE WASH GRAY AND THE
INSTANT CASE, SUN OIL DID NOT INVOLVE A CONTRACT DESIGNED TO RELIEVE A
TOWBOAT OWNER FROM LIABILITY FOR NEGLIGENT TOWAGE.  THE CONTRACTUAL
CLAUSE THERE INVOLVED RELATED ONLY TO PILOTAGE.  THE CLAUSE PROVIDED
THAT A TUG CAPTAIN WHO PILOTED A VESSEL PROPELLED ON ITS OWN POWER
SHOULD BE CONSIDERED THE SERVANT OF THAT VESSEL AND THAT THE TUG OWNERS
SHOULD NOT BE LIABLE FOR HIS NEGLIGENT PILOTAGE.  (FN21)  SUN OIL
CONSTRUED THIS CONTRACT AS RELIEVING THE TUGBOAT OWNERS FROM ALL
LIABILITY FOR NEGLIGENCE OF THE TUG CAPTAIN WHILE PILOTING SUN OIL'S
VESSEL AND HELD THE CONTRACT VALID AS THUS CONSTRUED.  BUT BOTH THE
COURT OF APPEALS (FN22) AND THIS COURT RECOGNIZED THAT HOLDING THE
PILOTAGE CONTRACT VALID DID NOT CONFLICT WITH THE SYRACUSE OR THE WASH
GRAY.  INDEED, THIS COURT EXPRESSLY STATED THAT THE SUN OIL DECREE WAS
"NOT IN CONFLICT WITH THE DECISIONS" IN THE SYRACUSE AND THE WASH
GRAY.  IT IS OF COURSE POSSIBLE THAT THE COURT FOUND AN ABSENCE OF
CONFLICT IN THE CASES BECAUSE OF A DIFFERENT CONSTRUCTION GIVEN THE
DIFFERENT CONTRACTS INVOLVED.  WE DOUBT THIS, BUT HOWEVER THIS MAY BE
THERE ARE MORE BASIC DIFFERENCES UPON WHICH WE PREFER TO REST THIS
COURT'S STATEMENT THAT SUN OIL DID NOT CONFLICT WITH THE TWO PRIOR
CASES. 

THERE ARE DISTINCTIONS BETWEEN A PILOTAGE AND A TOWAGE EXEMPTION
CLAUSE WHICH MAKE IT ENTIRELY REASONABLE TO HOLD ONE VALID AND THE
OTHER INVALID.  A PILOTAGE CLAUSE EXEMPTS FOR THE NEGLIGENCE OF PILOTS
ONLY; A TOWAGE CLAUSE EXEMPTS FROM ALL NEGLIGENCE OF ALL TOWAGE
EMPLOYEES.  PILOTS HOLD A UNIQUE POSITION IN THE MARITIME WORLD AND
HAVE BEEN REGULATED EXTENSIVELY BOTH BY THE STATES AND FEDERAL
GOVERNMENT.  (FN23)  SOME STATE LAWS MAKE THEM PUBLIC OFFICERS, CHIEFLY
RESPONSIBLE TO THE STATE, NOT TO ANY PRIVATE EMPLOYER.  UNDER LAW AND
CUSTOM THEY HAVE AN INDEPENDENCE WHOLLY INCOMPATIBLE WITH THE GENERAL
OBLIGATIONS OF OBEDIENCE NORMALLY OWED BY AN EMPLOYEE TO HIS EMPLOYER. 
(FN24)  THEIR FEES ARE FIXED BY LAW AND THEIR CHARGES MUST NOT BE
DISCRIMINATORY.  AS A RULE NO EMPLOYER, NO PERSON, CAN TELL THEM HOW TO
PERFORM THEIR PILOTAGE DUTIES.  WHEN THE LAW DOES NOT PRESCRIBE THEIR
DUTIES, PILOTS ARE USUALLY FREE TO ACT ON THEIR OWN BEST JUDGMENT WHILE
ENGAGED IN PILOTING A VESSEL.  BECAUSE OF THESE DIFFERENCES BETWEEN
PILOTS AND TOWAGE EMPLOYEES GENERALLY, CONTRACTS STIPULATING AGAINST A
PILOT'S NEGLIGENCE CANNOT BE LIKENED TO CONTRACTS STIPULATING AGAINST
TOWERS' NEGLIGENCE.  IT IS ONE THING TO PERMIT A COMPANY TO EXEMPT
ITSELF FROM LIABILITY FOR THE NEGLIGENCE OF A LICENSED PILOT NAVIGATING
ANOTHER COMPANY'S VESSEL ON THAT VESSEL'S OWN POWER.  THAT WAS THE SUN
OIL CASE.  IT IS QUITE A DIFFERENT THING, HOWEVER, TO PERMIT A TOWING
COMPANY TO EXEMPT ITSELF BY CONTRACT FROM ALL LIABILITY FOR ITS OWN
EMPLOYEES' NEGLIGENT TOWAGE OF A VESSEL.  THUS, HOLDING THE PILOTAGE
CONTRACT VALID IN THE SUN OIL CASE IN NO WAY CONFLICTS WITH THE RULE
AGAINST PERMITTING TOWERS BY CONTRACT WHOLLY TO ESCAPE LIABILITY FOR
THEIR OWN NEGLIGENT TOWING.  THAT RULE RENDERS INVALID THE FIRST
PROVISION OF THE CONTRACT IN THIS CASE THAT THE TOWING HAD TO BE DONE
AT THE SOLE RISK OF THE TOWED VESSEL. 

THE SECOND CLAUSE IN THE CONTRACT - THAT THE EMPLOYEES OF THE TOWBOAT
CAIRO SHOULD BE SERVANTS OF THE BARGE BISSO - LIKEWISE CANNOT BE
ENFORCED.  FOR IF VALID, THE ONLY EFFECT OF THAT CLAUSE WOULD BE TO
SHIFT ALL LIABILITY FOR NEGLIGENT TOWAGE FROM THE TOWBOAT TO THE VESSEL
BEING TOWED, PRECISELY WHAT THE FIRST CLAUSE ATTEMPTED TO DO.  THIS IS
TRUE BECAUSE EMPLOYEES OF A TOWBOAT DO NOT BECOME EMPLOYEES OF A VESSEL
BEING TOWED JUST BECAUSE A CONTRACT SAYS SO, WHEN AS HERE THE WORKERS
ARE IN TRUTH AND IN FACT SOLELY EMPLOYEES OF THE TOWBOAT.  (FN25)  THIS
TOWBOAT BELONGED TO RESPONDENT.  IT WAS MANNED BY WORKERS HIRED AND
PAID BY RESPONDENT.  THEY REMAINED AT ALL TIMES SUBJECT TO RESPONDENT'S
COMPLETE CONTROL.  IN CONTRAST, THE OWNERS OF THE BARGE BEING TOWED
NEVER HAD ANY RELATIONSHIP OF ANY KIND OR CHARACTER WITH THOSE WHO
CONTROLLED AND OPERATED THE TOWBOAT.  THE RULE AGAINST CONTRACTUAL
EXEMPTION OF A TOWBOAT FROM RESPONSIBILITY FOR ITS OWN NEGLIGENCE
CANNOT BE DEFEATED BY THE SIMPLE EXPEDIENT OF PROVIDING IN A CONTRACT
THAT ALL EMPLOYEES OF A TOWBOAT SHALL BE EMPLOYEES OF THE TOWED VESSEL
WHEN THE LATTER "EMPLOYMENT" IS PURELY A FICTION.  REVERSED.    FN1
"IT IS UNNECESSARY TO CONSIDER THE EVIDENCE RELATING TO THE ALLEGED
CONTRACT OF TOWAGE, BECAUSE, IF IT BE TRUE, AS THE APPELLANT SAYS,
THAT, BY SPECIAL AGREEMENT, THE CANAL-BOAT WAS BEING TOWED AT HER OWN
RISK, NEVERTHELESS, THE STEAMER IS LIABLE, IF, THROUGH THE NEGLIGENCE
OF THOSE IN CHARGE OF HER, THE CANAL-BOAT HAS SUFFERED LOSS.  ALTHOUGH
THE POLICY OF THE LAW HAS NOT IMPOSED ON THE TOWING BOAT THE OBLIGATION
RESTING ON A COMMON CARRIER, IT DOES REQUIRE ON THE PART OF THE PERSONS
ENGAGED IN HER MANAGEMENT, THE EXERCISE OF REASONABLE CARE, CAUTION,
AND MARITIME SKILL, AND IF THESE ARE NEGLECTED, AND DISASTER OCCURS,
THE TOWING BOAT MUST BE VISITED WITH THE CONSEQUENCES.  IT IS ADMITTED
IN THE ARGUMENT, AND PROVED BY THE EVIDENCE, THAT THE CANAL-BOAT WAS
NOT TO BLAME, AND THE INQUIRY, THEREFORE, IS, WAS THE STEAMER EQUALLY
WITHOUT FAULT?"  THE STEAMER SYRACUSE, 12 WALL.  167, 171. 

FN2  SEE, E.G., ALASKA COMMERCIAL CO. V. WILLIAMS, 128 F. 362, 366
(1904); THE EDMUND L. LEVY, 128 F. 683, 684 (1904); THE M.J. CUMMINGS,
18 F. 178 (1883); THE JONTY JENKS, 54 F. 1021, 1023 (1893); THE
OCEANICA, 144 F. 301 (D.C.W.D.N.Y. 1906).  SEE ALSO CASES COLLECTED IN
54 A.L.R. 104, 243-257. 

FN3  215 U.S. 599. 

FN4  SEE, E.G., TEN EYCK V. DIRECTOR GENERAL OF RAILROADS, 267 F. 974
(1920); THE MERCER, 14 F.2D 488 (1926). 

FN5  SEE MYLROIE V. BRITISH COLUMBIA MILLS TUG & BARGE CO., 268 F.
449 (C.A. 9TH CIR.); GREAT LAKES TOWING CO. V. AMERICAN S.S. CO., 165
F.2D 368 (C.A. 6TH CIR.); THE SOMERS N. SMITH, 120 F. 569 (D.C. ME.);
THE MONARCH, 235 F. 795, 799 (D.C.N.D. FLA.); THE SEA LION, 12 F.2D 124
(D.C.N.D. CALIF.); THE VIM, 40 F.2D 638 (D.C.R.I.).  SEE ALSO WALTER G.
HOUGLAND, INC. V. MUSCOVALLEY, 184 F.2D 530 (C.A. 6TH CIR.).  COMPARE
THE PACIFIC MARU, 8 F.2D 166 (D.C.S.D. GA.). 

FN6  OFFICIALLY REPORTED AS COMPANIA DE NAVEGACION INTERIOR, S.A. V.
FIREMAN'S FUND INS.  CO., 277 U.S. 66. 

FN7  SUPPLEMENTAL BRIEF FOR PETITIONER, P. 10, THE WASH GRAY, 277
U.S. 66. 

FN8  SEE NOTE 1, SUPRA. 

FN9  THE SAME ATTITUDE WAS MANIFESTED BY THE RULINGS OF THOSE COURTS
WHICH IMPOSED THE STRICT LIABILITY OF COMMON CARRIERS ON TUGS.  SEE
SMITH V. PIERCE, 1 LA. 350 (1830); VANDERSLICE V. THE SUPERIOR, 28 FED.
CAS. 970 (D.C.E.D. PA. 1850); WHITE V. THE MARY ANN, 6 CAL. 462 (1856);
ASHMORE V. PENN.  STEAM TOWING & TRANSP.  CO., 4 DUTCHER 180 (N.J.
1860); WOODEN V. AUSTIN, 51 BARB.  9 (N.Y. 1866).  AS TO LIABILITY OF
STEAMSHIPS GENERALLY SEE BUTLER V. PENNSYLVANIA, 10 HOW.  402, 416. 

FN10  RAILROAD CO. V. LOCKWOOD, 17 WALL.  357.  SEE ALSO LIVERPOOL &
GREAT WESTERN STEAM CO. V. PHENIX INS. CO., 129 U.S. 397. 

FN11  EXPRESS CO. V. CALDWELL, 21 WALL.  264, 269-270; SEE ALSO BROWN
V. POSTAL TEL. CO., 111 N.C. 187, 16 S.E. 179. 

FN12  "SUCH A BARGAIN DOUBTLESS MEANS SOMETHING; BUT IT IS CONTRARY
TO PUBLIC POLICY TO SO CONSTRUE A CONTRACT OF THAT NATURE THAT THE
TOWER IS ALLOWED TO GO CLEAR OF ALL LIABILITY WHEN IT IS SHOWN THAT HE
HAS RELAXED HIS FAITHFULNESS AND DUTY IN PERFORMING THE SERVICE." 
ULRICH V. THE SUNBEAM, 24 FED. CAS. 515 (1878).  SEE NOTE, 175 A.L.R.
8, 18. 

FN13  WRITERS HAVE DIFFERED AS TO THE VALIDITY OF SUCH TOWAGE
CLAUSES.  OF TWO LEADING AUTHORS ON ADMIRALTY ONE REGARDS THE CLAUSES
AS VALID, 1 BENEDICT, ADMIRALTY (6TH ED. 1940), SEC. 100, AND THE OTHER
REGARDS THEM AS INVALID, SAYING "THUS OBLIQUELY IT SEEMS TO BE SETTLED
THAT THE CONTRACT EXEMPTING THE TUG FROM ITS NEGLIGENCE IS NOT VALID." 
ROBINSON, ADMIRALTY (1939), 672. 

FN14  SEE CASES COLLECTED IN 175 A.L.R. 110-141; WILLIS, THE RIGHT OF
BAILEES TO CONTRACT AGAINST LIABILITY FOR NEGLIGENCE, 20 HARV. L. REV.
297. 

FN15  DUNCAN V. THOMPSON, 315 U.S. 1; BOYD V. GRAND TRUNK WESTERN R.
CO., 338 U.S. 263, 266; SEE BEERS, CONTRACTS EXEMPTING EMPLOYERS FROM
LIABILITY FOR NEGLIGENCE, 7 YALE L.J. 352. 

FN16  SEE CASES COLLECTED IN 175 A.L.R. 38-74. 

FN17  ID., AT 8-157.  ON THE QUESTION OF TOWAGE CONTRACTS EXEMPTING
TOWERS FROM NEGLIGENCE SEE NOTE 2, SUPRA, AND CASES COLLECTED IN 54
A.L.R. 104. 

FN18  PART III OF THE INTERSTATE COMMERCE ACT REGULATES TUGS AS
COMMON CARRIERS UNDER SOME CIRCUMSTANCES AND AS CONTRACT CARRIERS UNDER
OTHERS.  54 STAT. 929-952, 49 U.S.C.  SECS. 901-923.  SEE CORNELL
STEAMBOAT CO. V. UNITED STATES, 321 U.S. 634.  APART FROM STATUTES
TOWBOATS SOMETIMES OPERATE IN SUCH WAY THAT THEY ARE HELD TO BE COMMON
CARRIERS.  SEE NOTE 9, SUPRA.  AND IT IS A LONG SETTLED POLICY THAT
COMMON CARRIERS CANNOT BY CONTRACT ESCAPE ALL LIABILITY FOR THEIR OWN
NEGLIGENCE.  SEE, E.G., LIVERPOOL & GREAT WESTERN STEAM CO. V. PHENIX
INS. CO., 129 U.S. 397, 438-443.  AN EXAMINATION OF THE CASES, HOWEVER,
DISCLOSES THE DIFFICULTY OF DETERMINING WHEN A TUG IS OR IS NOT
OPERATING AS A COMMON CARRIER. 

FN19  THE PRESIDENT VAN BUREN, 16 ASPINALL'S MARITIME CASES (N.S.) 
444.  A FURTHER ILLUSTRATION OF THE MONOPOLY POTENTIAL OF THE TUG
BUSINESS IS SUGGESTED IN BOSTON METALS CO. V. THE WINDING GULF, DECIDED
TODAY, POST, P. 122.  PETITIONER IN THAT CASE INSISTED BEFORE THE COURT
OF APPEALS THAT IF GIVEN AN OPPORTUNITY IT COULD PRESENT EVIDENCE
SHOWING THAT WHEN IT EXECUTED THE CONTRACT CONTAINING THE PROSCRIBED
CLAUSE WITH THE FOUNDATION MARITIME OF CANADA THAT COMPANY HAD A
VIRTUAL MONOPOLY IN ALL EASTERN CANADIAN SEAPORTS AND THAT THE
PETITIONER'S BOAT COULD NOT HAVE BEEN MOVED AT ALL UNLESS IT AGREED TO
THE CONDITIONS FORCED ON IT IN THAT CONTRACT. 

FN20  THE SECOND CIRCUIT HAS TAKEN THIS POSITION.  NORTH RIVER BARGE
LINE V. CHILE S.S.  CO., 213 F.2D 882, 884 (1954).  THE OCEANICA WAS
ADHERED TO, BUT APPARENTLY ON SLIGHTLY DIFFERENT GROUNDS FROM THOSE
ORIGINALLY RELIED ON.  HOLDING A TOWAGE AGREEMENT FOR EXEMPTION FROM
NEGLIGENCE VALID, THE COURT SAID, "A CONTRARY DICTUM IN THE SYRACUSE
...  WAS APPROVED IN (THE WASH GRAY).  BUT WE THINK THAT SUN OIL  ...
IS TO BE TAKEN AS, IN EFFECT, ACCEPTING THE DOCTRINE OF THE OCEANICA." 

FN21  "WHEN THE CAPTAIN OF ANY TUG ENGAGED IN THE SERVICES OF TOWING
A VESSEL WHICH IS MAKING USE OF HER OWN PROPELLING POWER GOES ON BOARD
SAID VESSEL, IT IS UNDERSTOOD AND AGREED THAT SAID TUGBOAT CAPTAIN
BECOMES THE SERVANT OF THE OWNERS IN RESPECT TO THE GIVING OF ORDERS TO
ANY OF THE TUGS ENGAGED IN THE TOWAGE SERVICE AND IN RESPECT TO THE
HANDLING OF SUCH VESSEL, AND NEITHER THE TUGS NOR THEIR OWNERS OR
AGENTS SHALL BE LIABLE FOR ANY DAMAGE RESULTING THEREFROM."  287 U.S.,
AT 292-293. 

FN22  55 F.2D 63. 

FN23  SEE, E.G., R.S. SECS. 4235-4237, 4442, 4444, 46 U.S.C. SECS.
211-215; 40 STAT.  549, 46 U.S.C. SEC. 223; R.S. SEC. 4439, 46 U.S.C.
SEC. 228; R.S. SECS. 4449, 4450, AS AMENDED, 46 U.S.C. SECS. 239, 240;
MCKINNEY'S N.Y. LAWS, NAVIGATION LAW, SECS. 41, 64, 87-98, PENAL LAW,
SECS. 1501, 1913, 1961, LIEN LAW, SEC. 80; KOTCH V. BOARD OF RIVER PORT
PILOT COMM'RS, 330 U.S. 552, 557-564; COOLEY V. BOARD OF WARDENS, 12
HOW.  299. 

FN24  IBID.  SEE ALSO THE CHINA, 7 WALL.  53; THE EUGENE F. MORAN,
212 U.S. 466; SMITH V. PIERCE, 1 LA. 350, 357-358 (1830). 

FN25  SEE THE ADRIATIC, 30 T.L.R. 699; COMPARE THE PRESIDENT VAN
BUREN, 16 ASPINALL'S MARITIME CASES (N.S.)  444. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING.* 

*(THIS OPINION APPLIES ALSO TO BOSTON METALS CO. V. THE WINDING GULF,
POST, P. 122.) 

I JOIN IN THE OPINION OF THE COURT.  I DO NOT THINK WE KNOW ENOUGH
ABOUT THE ECONOMICS AND ORGANIZATION OF THIS BUSINESS (FN1) TO CHANGE
THE ESTABLISHED RULE OF THE STEAMER SYRACUSE, 12 WALL.  167, 171, AND
THE WASH GRAY, 277 U.S. 66, 73, THAT A TUG MAY NOT CONTRACT AGAINST HER
OWN NEGLIGENCE. 

I AGREE WITH THE COURT THAT SUN OIL CO. V. DALZELL TOWING CO., 287
U.S. 291, WAS NOT A DEPARTURE FROM THAT RULE.  IN THAT CASE THE VESSEL
WHICH WAS BEING ASSISTED BY THE TUGS WAS UNDER HER OWN POWER AND WAS
MANNED BY HER OWN CREW.  THE NEGLIGENCE WAS THAT OF A TUG CAPTAIN ON
BOARD THE VESSEL UNDER TOW.  THE COURT ENFORCED THE CONTRACT, WHICH
MADE HIS NEGLIGENCE THE NEGLIGENCE OF THE VESSEL, UNDER THE FAMILIAR
RULE THAT "WHEN ONE PUTS HIS EMPLOYEE AT THE DISPOSAL AND UNDER THE
DIRECTION OF ANOTHER FOR THE PERFORMANCE OF SERVICE FOR THE LATTER,
SUCH EMPLOYEE WHILE SO ENGAGED ACTS DIRECTLY FOR AND IS TO BE DEEMED
THE EMPLOYEE OF THE LATTER AND NOT OF THE FORMER."  ID., AT 295. 

IN THE SUN OIL CASE, THE TUG WAS NOT A COMMON CARRIER OR A CONTRACT
CARRIER.  IT WAS MERELY ASSISTING A VESSEL UNDER HER OWN POWER.  HERE
WE ARE DEALING WITH DEAD TOWS, WHERE THE TUG AND THE TUG ALONE IS IN
CONTROL, WHERE THE TOWS ARE WITHOUT POWER AND WITHOUT CREWS. 

IN THAT SITUATION, THE TUGBOATS ARE COMMON CARRIERS (FN2) WHEN THEY
SO HOLD THEMSELVES OUT (STIMSON LUMBER CO. V. KUYKENDALL, 275 U.S. 207;
CORNELL STEAMBOAT CO. V. UNITED STATES, 321 U.S. 634) OR CONTRACT
CARRIERS. 

SO FAR AS WE KNOW, THE TUGBOATS IN THE PRESENT CASES ARE AS MUCH
COMMON CARRIERS AS THE TUGBOATS IN THE CORNELL STEAMBOAT CASE AND THE
STIMSON LUMBER CO. CASE. 

COMMON CARRIERS MAY NOT "BY ANY FORM OF AGREEMENT SECURE EXEMPTION
FROM LIABILITY FOR LOSS OR DAMAGE CAUSED BY THEIR OWN NEGLIGENCE."  SUN
OIL CO. V. DALZELL TOWING CO., SUPRA, AT 294.  SEE RAILROAD CO. V.
LOCKWOOD, 17 WALL.  357; LIVERPOOL STEAM CO. V. PHENIX INS.  CO., 129
U.S. 397.  THE REASONS ARE AS GERMANE TO A TUGBOAT THAT IS A CONTRACT
CARRIER AS THEY ARE TO A TUGBOAT THAT IS A COMMON CARRIER.  THEY WERE
WELL STATED BY JUDGE COXE, DISSENTING IN THE OCEANICA, 170 F. 893,
896: 

"IT OUGHT TO BE AGAINST PUBLIC POLICY TO PERMIT A VESSEL TO CONTRACT
AGAINST HER OWN FAULT.  TO ALLOW HER TO DO SO BEGETS RECKLESSNESS,
CARELESSNESS AND NEGLECT.  THE SAME REASONS FOR PROHIBITING SUCH A
CONTRACT IN THE CASE OF COMMON CARRIERS APPLY, THOUGH NOT, PERHAPS, TO
THE SAME EXTENT, IN THE CASE OF A TOWAGE CONTRACT.  IN BOTH CASES THE
DESIGN IS TO PREVENT THOSE WHO HAVE THE ABSOLUTE CONTROL OF ANOTHER'S
PROPERTY FROM EXTORTING AN AGREEMENT THAT THEY MAY NEGLECT ALL
REASONABLE PRECAUTIONS TO PRESERVE IT." 

IF THE TUG IS ONLY A CONTRACT CARRIER, IT IS NOT LIABLE FOR INJURY TO
THE TOW IN THE ABSENCE OF NEGLIGENCE.  SEE STEVENS V. THE WHITE CITY,
285 U.S. 195.  BUT THOUGH A CONTRACT CARRIER, THE TUG MAY AS
EFFECTIVELY COMMAND THE MARKET AND HAVE AS COMPLETE CONTROL OF THE TOW
AND CARGO AS ANY COMMON CARRIER.  THE REASONS STATED BY JUDGE COXE
SEEM, THEREFORE, AS GERMANE TO THE CONTRACT CARRIER AS TO THE COMMON
CARRIER. 

IT MAY BE THAT THE RULE OF THE SYRACUSE IS OUTMODED AND SHOULD BE
CHANGED.  IT MAY BE THAT THE TUGBOAT INDUSTRY IS LESS ABLE TO CARRY THE
RISKS OF THOSE LOSSES THAN ITS CUSTOMERS.  IT MAY BE FAIRER IN THE LONG
RUN TO LET THE TUGBOAT OPERATOR FREE HIMSELF FROM HIS OWN NEGLIGENCE
AND TRANSFER THE LIABILITY TO THE SHIPPERS WHO EMPLOY HIS SERVICES. 
BUT THE VERY STATEMENT OF THE PROBLEM RAISES LARGE QUESTIONS OF POLICY
ON WHICH THE PRESENT RECORDS THROW NO LIGHT.  WE WOULD HAVE TO KNOW
MUCH MORE ABOUT THE ECONOMICS AND ORGANIZATION OF THE TUGBOAT INDUSTRY
THAN WE ARE OFFERED HERE TO FASHION A NEW RULE.  (FN3)  ACCORDINGLY, I
WOULD CONTINUE TO ENFORCE THE ESTABLISHED RULE OF THE SYRACUSE THAT HAS
ITS ROOTS DEEP IN HISTORY AND EXPERIENCE, UNTIL AND UNLESS CONGRESS
ADOPTS ANOTHER ONE. 

FN1  ASPECTS OF THE ECONOMICS OF THE TUGBOAT INDUSTRY IN NEW YORK
HARBOR ARE SHOWN IN HARBOR FLEET, 27 FORTUNE 99 (MAY, 1943); DOCKING
LEVIATHANS IN THE WORLD'S BUSIEST HARBOR, 75 TRAVEL 4 (JUNE, 1940);
FRIENDLY USHERS OF NEW YORK HARBOR, CHRISTIAN SCIENCE MONITOR MAGAZINE
POST, MAR. 24, 1945, P. 26; ADMIRAL MORAN'S PRIVATE NAVY, COLLIER'S,
JAN. 15, 1949, P. 9; EARNINGS ON TUGBOATS AND BARGES IN NEW YORK
HARBOR, JAN. 1945, 61 MONTHLY LABOR REVIEW 1192. 

FOR AN ENGLISH HISTORICAL ACCOUNT SEE BOWEN, A HUNDRED YEARS OF
TOWAGE (1933). 

FN2  IF THEY ARE COMMON CARRIERS, THEY MAY BE SUBJECT TO PERVASIVE
REGULATION BY THE INTERSTATE COMMERCE COMMISSION UNDER PART III OF THE
INTERSTATE COMMERCE ACT, 54 STAT.  898, 929, 49 U.S.C. SECS. 901, 905
ET SEQ., AS CORNELL STEAMBOAT CO. V. UNITED STATES, SUPRA, HELD.  IF
THEY ARE CONTRACT CARRIERS, CERTAIN OF THEIR ACTIVITIES MAY LIKEWISE BE
SUBJECT TO REGULATION UNDER THAT ACT.   SEE, FOR EXAMPLE, 49 U.S.C.
SECS. 906(E), 907(I), 913-917. 

FN3  AVAILABLE STATISTICS OF THE TUGBOAT INDUSTRY DO NOT SHOW THE
BREAKDOWN, PORT BY PORT, BETWEEN COMMON CARRIERS AND CONTRACT
CARRIERS.  NOR DO THEY SHOW HOW MANY OF THE CONTRACT CARRIERS ARE
"CAPTIVE" CARRIERS, SERVICING ONE COMPANY.  NOR DO THEY GIVE A PICTURE
OF THE COMPETITIVE OR MONOPOLISTIC CONDITIONS PREVAILING IN THE VARIOUS
PORTS.  WE WOULD NEED AN ECONOMIC BRIEF TO ENLIGHTEN US, IF WE WERE TO
UNDERTAKE TO REFORMULATE THE ESTABLISHED RULE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED AND MR. JUSTICE BURTON
JOIN, DISSENTING. 

DRAWING ON ITS CONSTITUTIONAL POWERS IN MATTERS MARITIME (ART. III,
SEC. 2), THIS COURT HAS PROBABLY MADE AS MUCH SUBSTANTIVE ADMIRALTY LAW
THROUGH ADJUDICATION AS HAS CONGRESS BY LEGISLATION.   INDEED, NOT A
LITTLE OF LEGISLATION HAS DISPLACED OR MODIFIED THE COURT'S DECISIONS. 
THIS CREATIVE JUDICIAL FUNCTION OF MAKING ADMIRALTY LAW REMAINS
UNIMPAIRED, SO THAT IT IS WITHIN THE COURT'S JURISDICTION NOW TO
ANNOUNCE, AS NEW DOCTRINE, THAT TOW AND TUG MAY NOT BY AGREEMENT
RELIEVE THE TUG OF LIABILITY FOR DAMAGE TO THE TOW CAUSED BY THE TUG'S
NEGLIGENCE.  OF COURSE, THE COURT SHOULD NOT RESTRICT THE AREA OF FULL
BARGAINING BETWEEN TOW AND TUG UNLESS AN OVERRIDING PUBLIC INTEREST
CALLS FOR SUCH RESTRICTION.    BUT THE COURT DOES NOT NOW PROFESS TO
ORIGINATE A DOCTRINE OF INVALIDITY OF SUCH AN AGREEMENT.  PERVADING THE
COURT'S OPINION IS THE ASSUMPTION THAT IT IS MERELY MAKING EXPLICIT
WHAT HAS BEEN THE PRESUPPOSITION AND DIRECTION, IF NOT THE UNEQUIVOCAL
PRONOUNCEMENT, OF THE CONTROLLING BODY OF DECISIONS.  THESE DECISIONS,
WE ARE TOLD, "STRONGLY POINT TO THE EXISTENCE OF A JUDICIAL RULE, BASED
ON PUBLIC POLICY, INVALIDATING CONTRACTS RELEASING TOWERS FROM ALL
LIABILITY FOR THEIR NEGLIGENCE."  ON THIS ASSUMPTION, ONE EASILY SLIDES
TO THE COURT'S CONCLUSION.  SUCH AN ASSUMPTION ALMOST IMPLIES THE
CONCLUSION, FOR A LONG-ESTABLISHED RULE, NOT REMOTELY RELATED TO ANY
CONSTITUTIONAL QUESTION AND READILY AMENABLE TO LEGISLATIVE CHANGE,
SHOULD BE ADHERED TO.  ESPECIALLY IN THE DOMAIN OF COMMERCIAL AFFAIRS,
STARE DECISIS HAS A STRONG SOCIAL JUSTIFICATION.  IN CONDUCTING THEIR
AFFAIRS, MEN NATURALLY ASSUME THAT COURTS WILL NOT UNSETTLE A SETTLED
RULE FOR THE CONDUCT OF BUSINESS, CERTAINLY NOT UNLESS EXPERIENCE HAS
MADE MANIFEST THE NEED FOR OVERTURNING THE LAW. 

TO ASSERT THAT A RULE HAS BEEN ESTABLISHED BY COURTS NECESSARILY
IMPLIES AUTHORITATIVE PRONOUNCEMENT OF A DOCTRINE, ITS APPLICATION TO
LITIGATION, AND ITS CONTINUING VITALITY.  SUCH A RULE OUGHT TO BE FOUND
IN ADJUDICATIONS IN THIS COURT OR AT THE VERY LEAST - IN THE CASE OF
MARITIME MATTERS - IN THE WEIGHT OF AUTHORITY IN LOWER COURTS,
PARTICULARLY IN THE SOUTHERN DISTRICT OF NEW YORK WHERE ADMIRALTY LAW
HAS TO SUCH A LARGE EXTENT DEVELOPED.  THE CLAIMED RULE CANNOT AVOUCH
THE DECISIONS IN THIS COURT NOR THE BODY OF LOWER COURT DECISIONS.  IN
THEIR ENTIRETY, THE DECISIONS REFLECT THE OPPOSITE.  A CRITICAL
EXAMINATION OF THEM YIELDS THESE CONCLUSIONS: 

(1)  IN THE STEAMER SYRACUSE, 12 WALL.  167, THIS COURT DID NOT HAVE
BEFORE IT ANY CLAIM OF EXEMPTION FROM ALL NEGLIGENCE SUCH AS IS
PRESENTED HERE.  THE STEAMER SYRACUSE THEREFORE COULD NOT HAVE DECIDED,
AND IT DID NOT PURPORT TO DECIDE, THE VALIDITY OF SUCH AN EXEMPTION. 
THE WASH GRAY, 277 U.S. 66, PURPORTS TO BE NO MORE THAN A DECISION ON A
QUESTION OF CONSTRUCTION, IN WHICH THE STEAMER SYRACUSE WAS CITED AS
PRECEDENT FOR PLACING A NARROW CONSTRUCTION ON EXCULPATORY CLAUSES. 

(2)  THE CIRCUITS OTHER THAN THE NINTH DO NOT DISCLOSE DECISIONS THAT
TOWBOATS CANNOT BY CONTRACT ESCAPE LIABILITY FOR NEGLIGENT TOWAGE.  IN
THE NINTH THERE IS TALK, NOT DECISION. 

(3)  IN RESPECTING AN AGREEMENT FOR EXEMPTION IN THE CASE OF A
PRIVATE CARRIER, WE DO NOT DISREGARD ANY DECISION OF THIS COURT OR ANY
PERSUASIVE BODY OF AUTHORITY IN THE COURTS OF APPEALS.  ON THE OTHER
HAND, TO RECOGNIZE THE VALIDITY OF SUCH A PROVISION ACCORDS WITH THE
DECISIONS AND PRONOUNCEMENTS OF THE TWO CIRCUITS HAVING THE MOST ACTIVE
ADMIRALTY BUSINESS, AND WITH THE UNDERLYING CONSIDERATIONS OF POLICY
UPON WHICH THIS COURT VERY RECENTLY AND UNANIMOUSLY ENFORCED A SIMILAR
PROVISION FOR EXEMPTION IN SUN OIL CO. V. DALZELL TOWING CO., 287 U.S.
291. 

THE MATERIALS ON WHICH THESE CONCLUSIONS ARE BASED ARE NOT ESOTERIC. 
THEY ARE TO BE ASSESSED, OF COURSE, ACCORDING TO TIME-HONORED RULES FOR
READING CASES - THAT CASES HOLD ONLY WHAT THEY DECIDE, NOT WHAT
SLIPSHOD OR IGNORANT HEADNOTE WRITERS STATE THEM TO DECIDE; THAT
DECISIONS ARE ONE THING, GRATUITOUS REMARKS ANOTHER.  A STEW MAY BE A
DELICIOUS DISH.  BUT A STEW IS NOT TO BE MADE IN LAW BY THROWING
TOGETHER INDISCRIMINATELY DECISION AND DICTA, CASES INVOLVING COMMON
CARRIERS AND PRIVATE CARRIERS, CASES INVOLVING MONOPOLISTIC OR
OTHERWISE PATENTLY UNEQUAL BARGAINING POWER AND CASES ARISING UNDER
CONTRACTS BETWEEN PARTIES BARGAINING AT ARM'S LENGTH. 

IT IS ESSENTIAL IN EXAMINING THESE CASES TO DIFFERENTIATE SHARPLY
BETWEEN CONSTRUCTION AND VALIDITY.  SINCE NEGLIGENCE IS THE ORDINARY
BASIS FOR LIABILITY, RELIEF FROM IT SHOULD BE CLEARLY AGREED UPON
BETWEEN THE PARTIES AND AMBIGUITY SHOULD NOT LEAVE THE EXTENT OF SUCH
RELIEF IN DOUBT.  ACCORDINGLY, PROVISIONS FOR EXEMPTION ARE CLOSELY
SCRUTINIZED BY COURTS AND DOUBTS EITHER AS TO THE EXISTENCE OF THE
PROVISION OF EXEMPTION OR ITS SCOPE ARE RESOLVED AGAINST RELIEF FROM
RESPONSIBILITY.  IT IS FAIR TO SAY THAT A NUMBER OF THE CASES RELIED
UPON FOR SUPPORT AGAINST THE VALIDITY OF AN EXEMPTION ARE CASES IN
WHICH THE EXISTENCE OF SUCH A PROVISION WAS NOT ESTABLISHED OR ITS
MEANING WAS APPROPRIATELY GIVEN LIMITED SCOPE. 

THESE CONCLUSIONS REQUIRE DOCUMENTATION. 

DECISIONS OF THIS COURT. 

1.  IN THE STEAMER SYRACUSE, 12 WALL.  167, THE CRUCIAL ISSUE IN THE
DISTRICT COURT, ON APPEAL IN THE CIRCUIT COURT, AND ON APPEAL HERE, WAS
WHETHER OR NOT ON THE PARTICULAR FACTS OF THAT CASE THE STEAMER
SYRACUSE HAD BEEN "NAVIGATED WITH ORDINARY CARE AND SKILL." 

THE SYRACUSE HAD BEEN ENGAGED IN TOWING CANALBOATS THROUGH NEW YORK
HARBOR.  THE TUG'S OWNERS HAD GIVEN THE OWNERS OF THE TOW A RECEIPT
STATING THAT THE SERVICE WAS TO BE PERFORMED "AT THE RISK OF HER
OWNERS."  IN A LIBEL BASED ON THE TUG'S NEGLIGENCE IN PERMITTING THE
TOW TO STRIKE AN ANCHORED VESSEL AND BE SUNK, THE DISTRICT COURT HELD
THAT, WHILE THE PARTIES WERE FREE TO VARY THEIR RESPONSIBILITIES BY
CONTRACT, THE WORDS OF THE RECEIPT (FN1) "DID NOT OPERATE TO RELIEVE OR
DISCHARGE THE STEAMBOAT AND HER OWNERS FROM THE EXERCISE OF ALL
REASONABLE SKILL."  LANGLEY V. THE SYRACUSE, 14 FED. CAS. 1115, NO.
8,068.  THIS DECISION WAS AFFIRMED BOTH BY THE CIRCUIT COURT, THE
SYRACUSE, 23 FED.  CAS. 593, NO. 13,717, AND THIS COURT WITH NO
SUGGESTION THAT THE CONTROLLING ISSUE WAS OTHER THAN THAT ON WHICH THE
DISTRICT COURT HAD BASED ITS DECISION.  NEITHER IN THE ANSWER TO THE
LIBEL, NOR IN THE PROCEEDINGS IN THE DISTRICT COURT, NOR IN THOSE IN
THE CIRCUIT COURT, INCLUDING THE OPINION OF MR. JUSTICE NELSON, SITTING
AS CIRCUIT JUSTICE, NOR IN THE BRIEFS IN THIS COURT, NOR IN THE OPINION
HERE, WAS THERE EVER TENDERED THE ISSUE WHICH IS TENDERED IN THIS CASE
NAMELY, THE ENFORCEABILITY OF AN AGREEMENT WHEREBY A PRIVATE CARRIER
IS RELIEVED FROM LIABILITY FOR NEGLIGENCE.  NOR WAS THERE ANY
PRONOUNCEMENT ON SUCH AN ISSUE.  THROUGHOUT THE LITIGATION THERE IS NOT
THE FAINTEST SUGGESTION THAT THE RECEIPT RAISED ANY ISSUE OTHER THAN
WHETHER THE SYRACUSE WAS OR WAS NOT "NAVIGATED WITH ORDINARY CARE AND
SKILL" IN THE VERY SPECIAL CIRCUMSTANCES OF THE PARTICULAR SEAMANSHIP. 
IT WOULD SEEM INDEED STRANGE THAT THE BRIEF OF E.C. BENEDICT, PROBABLY
THE LEADING ADMIRALTY LAWYER OF HIS DAY, SHOULD NOT GIVE A HINT OF
RELIANCE ON A CLAUSE EXEMPTING FROM LIABILITY FOR NEGLIGENCE, BUT
INSTEAD BRING ALL ITS ARGUMENTATION TO BEAR TO PROVE THAT THE DUTY TO
NAVIGATE "WITH ORDINARY CARE AND SKILL" WAS SATISFIED.  HE THUS FRAMED
HIS ONLY CONTENTION REGARDING THE EFFECT OF THE CONTRACT: 

"THE BOAT WAS TOWED UNDER A CONTRACT ON THE PART OF THE LIBELLANT
THAT HE WOULD BEAR THE RISKS OF THE NAVIGATION, PROVIDED, THE STEAMBOAT
WHICH FURNISHED THE PROPULSIVE POWER, WAS NAVIGATED WITH ORDINARY CARE
AND SKILL. 

"THIS WE SUBMIT IS THE FAIR INTENT OF THE CONTRACT TO TOW THE BOAT
'AT THE RISK OF HER MASTERS AND OWNERS.'"  BRIEF FOR APPELLANT, P. 3;
SEE 12 WALL., AT 170 (SUMMARY OF ARGUMENT). 

THE LANGUAGE OF BOTH MR. JUSTICE NELSON, IN THE CIRCUIT COURT, AND
MR. JUSTICE DAVIS, FOR THIS COURT, MUST BE READ IN THE LIGHT OF THE
ISSUES THAT WERE FRAMED IN THE DISTRICT COURT, THE COURSE OF EVIDENCE
IN THAT COURT, THE CONTENTIONS OF THE PARTIES AND THE EXPLICITNESS OF
THE BRIEFS IN THIS COURT.  THE CLAIM WAS NOT RELIEF FROM LIABILITY FOR
NEGLIGENCE BUT THAT THE ADMITTED DUTY OF "ORDINARY CARE AND SKILL" IN
NAVIGATION HAD NOT BEEN SATISFIED.  THERE IS NO SUGGESTION, EITHER IN
THIS COURT'S OPINION OR THAT OF MR. JUSTICE NELSON ON CIRCUIT, THAT A
RULE OF PUBLIC POLICY WAS BEING ANNOUNCED BARRING AGREEMENTS, FAIRLY
ENTERED INTO, RELIEVING PRIVATE CARRIERS FROM LIABILITY.  THE STEAMER
SYRACUSE WAS DECIDED HERE IN 1871.  IT WAS NOT UNTIL 1873 THAT SUCH
AGREEMENTS WERE INVALIDATED IN THE CASE OF COMMON CARRIERS.  RAILROAD
CO. V. LOCKWOOD, 17 WALL.  357.  AND NOT UNTIL 18 YEARS LATER WAS THIS
RULE APPLIED TO COMMON CARRIERS BY WATER.  LIVERPOOL & GREAT WESTERN
STEAM CO. V. PHENIX INS. CO., 129 U.S. 397.  SURELY THIS COURT DID NOT
IMPLIEDLY, IN A MOMENT OF ABSENT-MINDEDNESS, DECLARE SUCH A RULE IN THE
CASE OF A PRIVATE CARRIER AND TWO YEARS LATER REQUIRE 25 PAGES TO
JUSTIFY IT IN THE CASE OF COMMON CARRIERS. 

RELIANCE UPON ANY CLIMATE OF "MANIFEST JUDICIAL HOSTILITY TOWARD
RELEASE-FROM-NEGLIGENCE CONTRACTS" EXISTING AT THIS TIME IS SINGULARLY
MISPLACED.  IN THIS PERIOD AMERICAN LEGAL THOUGHT PLACED ENTIRELY TOO
HIGH A VALUE UPON LIBERTY OF CONTRACT.  SEE POUND, LIBERTY OF CONTRACT,
18 YALE L.J. 454.  HAD THERE BEEN SUCH AN ATTITUDE, IT COULD NOT HAVE
BEEN A FACTOR IN A CASE IN WHICH BOTH PARTIES AGREED THAT NO SUCH
CONTRACT WAS INVOLVED.  MOREOVER, THIS HOSTILITY, INSOFAR AS IT WAS
MORE THAN A MODE OF NARROWLY CONSTRUING CONTRACTS DESIGNED TO CUT DOWN
COMMON-LAW LIABILITY, WAS LIMITED TO SITUATIONS WHERE INEQUALITY OF
BARGAINING POWER IN RELATION TO ESSENTIAL SERVICES CALLED FOR JUDICIAL
INTERVENTION.  COMPARE RAILROAD CO. V. LOCKWOOD, SUPRA, WITH BALTIMORE
& OHIO S.R. CO. V. VOIGT, 176 U.S. 498; SANTA FE, P.&P.R. CO. V. GRANT
BROS. CONST. CO., 228 U.S. 177. 

2.  THE SUPERFICIAL AMBIGUITY OF THE LANGUAGE OF THE COURT'S OPINION
IN THE STEAMER SYRACUSE, WHEN READ WITHOUT REFERENCE TO THE ISSUES
BEFORE IT, LED SOME LOWER COURTS TO SPECULATE AS TO ITS MEANING.  BUT
COMPANIA DE NAVIGACION LA FLECHA V. BRAUER, 168 U.S. 104, LEFT NO
GROUND FOR SUCH CONFUSION.  THE BRAUER CASE INVOLVED A CONTRACT FOR
CARRIAGE OF CATTLE ON THE DECK OF A STEAMER "AT OWNER'S RISK, STEAMER
NOT TO BE HELD ACCOUNTABLE FOR ACCIDENT TO, OR MORTALITY OF, THE
ANIMALS, FROM WHATEVER CAUSE ARISING."  THE CONTRACT SPECIFIED THAT IT
WAS TO BE INTERPRETED ACCORDING TO ENGLISH LAW.  A LIBEL AGAINST THE
SHIPOWNER WAS BROUGHT FOR THE LOSS OF THE CATTLE WHICH, DURING A STORM
AT SEA, HAD BEEN UNNECESSARILY DRIVEN OVERBOARD BY THE CREW.  THE
COURT, NOTING A CONFLICT BETWEEN AMERICAN AND ENGLISH DECISIONS
REGARDING THE RIGHT OF A COMMON CARRIER TO RELIEVE ITSELF OF THE
CONSEQUENCES OF NEGLIGENCE, FOUND IT UNNECESSARY TO DETERMINE WHICH OF
THESE RULES WAS APPLICABLE, STATING: 

"BY THE LAWS OF BOTH COUNTRIES,  ...  AN EXCEPTION, IN THE BILL OF
LADING, OF PERILS OF THE SEA, OR OTHER SPECIFIED PERILS, DOES NOT  ...
EXEMPT HIM FROM LIABILITY FOR LOSS OR DAMAGE FROM ONE OF THOSE PERILS,
TO WHICH THE NEGLIGENCE OF HIMSELF OR HIS SERVANTS HAS CONTRIBUTED. 

"THIS RULE OF CONSTRUCTION WAS FULLY ESTABLISHED IN THIS COURT BEFORE
IT HAD OCCASION TO DECIDE THE QUESTION WHETHER IT WAS WITHIN THE POWER
OF THE CARRIER BY EXPRESS STIPULATION TO EXEMPT HIMSELF FROM ALL
RESPONSIBILITY FOR THE NEGLIGENCE OF HIMSELF OR HIS SERVANTS. 

"IN THE LEADING CASE OF NEW JERSEY STEAM NAVIGATION CO. V. MERCHANTS'
BANK, 6 HOW.  344  ...  . (THE COURT STATED) 'BUT WE THINK IT WOULD BE
GOING FARTHER THAN THE INTENT OF THE PARTIES  ...  WERE WE TO REGARD IT
AS STIPULATING FOR  ...  WANT OF ORDINARY CARE  ...  .'  'IF IT IS
COMPETENT AT ALL FOR THE CARRIER TO STIPULATE  ...  IT SHOULD BE
REQUIRED TO BE DONE, AT LEAST, IN TERMS THAT WOULD LEAVE NO DOUBT AS TO
THE MEANING OF THE PARTIES.'  6 HOW.  383, 384.  SEE ALSO  ...  THE
SYRACUSE, 12 WALL.  167."  168 U.S., AT 118-120. 

THIS CITATION OF THE STEAMER SYRACUSE AS AN EXAMPLE OF INSTANCES IN
WHICH A RULE OF NARROW CONSTRUCTION OF EXCULPATORY CLAUSES HAD BEEN
INVOKED SHOULD HAVE SET TO REST ANY MISUNDERSTANDING CONCERNING THE
SCOPE OF ITS RULING. 

3.  COMPANIA DE NAVEGACION INTERIOR, S.A. V. FIREMAN'S FUND INS. CO.,
277 U.S. 66 (THE WASH GRAY), WAS A CONSOLIDATION OF LIBELS BY THE OWNER
OF THE WASH GRAY, LOST WHILE IN TOW ON THE GULF OF MEXICO, AGAINST
ELEVEN INSURANCE COMPANIES WHICH HAD UNDERWRITTEN THE VOYAGE.  ONE OF
THE DEFENSES OF THE INSURERS WAS THAT THE CONTRACT OF TOWAGE HAD
CONTAINED, UNKNOWN TO THEM, THE FOLLOWING PROVISION WHICH THEY ALLEGED
TO HAVE BEEN MATERIAL TO THE RISK: 

"FREEPORT SULPHUR NO. 1 (THE TUG) WILL FURNISH HAWSER.  ALL OTHER RISK
AND EXPENSE TO BE BORNE BY (THE WASH GRAY).  IT IS UNDERSTOOD YOU WILL
KEEP SUFFICIENT MEN ON BOARD TO KEEP UP STEAM AND MAN THE TUG'S PUMPS. 
S.S. FREEPORT NO. 1 IS NOT RESPONSIBLE IN ANY WAY FOR LOSS OR DAMAGE TO
THE WASH GRAY." 

THE DISTRICT COURT HAD HELD THAT THE TOWAGE CLAUSE "DOES NOT PRETEND
TO RELEASE LIABILITY FOR LOSS OR DAMAGE GROWING OUT OF THE TOWER'S
NEGLIGENCE.  SUCH AN INTENTION WOULD BE DEFEATED BY THE VERY OBSCURITY
OF ITS TERMS."  14 F.2D 196, 200.  THE COURT OF APPEALS REVERSAL RESTED
ON GROUNDS NOT HERE RELEVANT.  19 F.2D 493. 

ON WRIT OF CERTIORARI, THIS COURT, REVERSING THE COURT OF APPEALS,
DISMISSED THE CONTENTION OF THE INSURERS IN THE FOLLOWING TERMS: 

"WE DO NOT THINK THAT THE TOWING CONTRACT HAS THE EFFECT CLAIMED FOR
IT BY THE COMPANIES.  IT DID NOT RELEASE THE 'FREEPORT' FROM ANY LOSS
OR DAMAGE TO THE 'WASH GRAY' DUE TO THE NEGLIGENCE OF THE MASTER OR
CREW OF THE TOWING VESSEL; AND FOR A LOSS THUS CAUSED THE COMPANIES
WOULD BE SUBROGATED TO THE CLAIM OF THE OWNER OF THE 'WASH GRAY.' 

"THE RULE LAID DOWN BY THIS COURT IN THE STEAMER SYRACUSE, 12 WALL. 
167, 171, COVERS THE POINT ...  . 

"IN VIEW OF THIS STATE OF THE LAW, THE TOWING CONTRACT HERE SHOWN WAS
NOT A FACT MATERIAL TO THE RISK, A CONCEALMENT OF WHICH FROM THE
UNDERWRITERS WOULD INJURE THEM OR AVOID THE POLICY."  277 U.S., AT 73
74. 

THE WORDING OF THE CLAUSE DIFFERED, TO BE SURE, FROM THAT INVOLVED IN
THE STEAMER SYRACUSE.  BUT THE LANGUAGE RELIED UPON BY THE INSURERS, IN
THE CONTEXT OF THE REST OF THE CLAUSE AND THE UNDERTAKING INVOLVED, WAS
NO MORE SUGGESTIVE OF AN ATTEMPT TO AVOID LIABILITY FOR NEGLIGENCE THAN
THAT CONSTRUED IN THE STEAMER SYRACUSE.  IT IS HARDLY SURPRISING THAT
THE COURT APPLIED, AT THE INSTANCE OF THE PARTY TO THE CONTRACT, THE
NARROWER MEANING WHICH THE PARTIES IN THE STEAMER SYRACUSE HAD CONCEDED
TO BE PROPER, AND REJECTED THE INSURER'S ATTEMPT TO ESCAPE LIABILITY BY
ATTRIBUTING THE BROADEST MEANING TO THE CLAUSE.    4.  ANY SUPPORT FOR
THE PRESENT DECISION DRAWN FROM THE LANGUAGE OF THE STEAMER SYRACUSE
AND THE WASH GRAY IS DECISIVELY REPELLED BY THE DECISION IN SUN OIL CO.
V. DALZELL TOWING CO., 287 U.S. 291.   THAT CASE INVOLVED THE FOLLOWING
CLAUSE OF A CONTRACT FOR ASSISTANCE OF A TANKER TO ITS BERTH AT BERGEN,
NEW JERSEY: 

"WHEN THE CAPTAIN OF ANY TUG ENGAGED IN THE SERVICES OF TOWING A
VESSEL  ...  GOES ON BOARD SAID VESSEL, IT IS UNDERSTOOD AND AGREED
THAT SAID TUGBOAT CAPTAIN BECOMES THE SERVANT OF THE OWNERS IN RESPECT
TO THE GIVING OF ORDERS TO ANY OF THE TUGS ENGAGED IN THE TOWAGE
SERVICE AND IN RESPECT TO THE HANDLING OF SUCH VESSEL, AND NEITHER THE
TUGS NOR THEIR OWNERS OR AGENTS SHALL BE LIABLE FOR ANY DAMAGE
RESULTING THEREFROM." 

WHILE THE CAPTAIN OF ONE OF RESPONDENT'S TUGS WAS ACTING AS PILOT ON
BOARD THE TANKER, IT WENT AGROUND AND WAS DAMAGED.  IN THE RESULTING
ACTION AGAINST THE TUG, THIS COURT UPHELD THE VALIDITY OF THE CLAUSE,
STATING: 

"THE VALIDITY OF ITS APPLICABLE PROVISION CANNOT REASONABLY BE
DOUBTED.  SO FAR AS CONCERNS THE SERVICE TO BE RENDERED UNDER THE
AGREEMENT, RESPONDENT WAS NOT A COMMON CARRIER OR BAILEE OR BOUND TO
SERVE OR LIABLE AS SUCH.  TOWAGE DOES NOT INVOLVE BAILMENT, AND THE
SERVICES COVERED BY THE CONTRACT WERE LESS THAN TOWAGE  ...  .  THERE
IS NO FOUNDATION IN THIS CASE FOR THE APPLICATION OF THE DOCTRINE THAT
COMMON CARRIERS AND OTHERS UNDER LIKE DUTY TO SERVE THE PUBLIC
ACCORDING TO THEIR CAPACITY AND THE TERMS OF THEIR UNDERTAKING CANNOT
BY ANY FORM OF AGREEMENT SECURE EXEMPTION FROM LIABILITY FOR LOSS OR
DAMAGE CAUSED BY THEIR OWN NEGLIGENCE  ...  .  RESPONDENT HAD NO
EXCLUSIVE PRIVILEGE OR MONOPOLY IN RESPECT OF THE SERVICES THAT
PETITIONER DESIRED TO HAVE PERFORMED FOR ITS TANKER.  AND PETITIONER
WAS UNDER NO COMPULSION TO ACCEPT THE TERMS OF RESPONDENT'S PILOTAGE
CLAUSE.  THERE IS NOTHING TO SUGGEST THAT THE PARTIES WERE NOT ON EQUAL
FOOTING OR THAT THEY DID NOT DEAL AT ARM'S LENGTH.  'THERE IS NO RULE
OF PUBLIC POLICY WHICH DENIES EFFECT TO THEIR EXPRESSED INTENTION, BUT
ON THE CONTRARY, AS THE MATTER LIES WITHIN THE RANGE OF PERMISSIBLE
AGREEMENT, THE HIGHEST PUBLIC POLICY IS FOUND IN THE ENFORCEMENT OF THE
CONTRACT WHICH WAS ACTUALLY MADE.'  ...  . 

"RESPONDENT'S RESPONSIBILITY IS NOT TO BE EXTENDED BEYOND THE SERVICE
THAT IT UNDERTOOK TO PERFORM.  IT DID NOT FURNISH PILOTAGE  ...  . 

"THE DECREE UNDER CONSIDERATION IS NOT IN CONFLICT WITH THE DECISIONS
OF THIS COURT CITED BY PETITIONER, THE STEAMER SYRACUSE, 12 WALL.  167,
AND COMPANIA DE NAVEGACION V. INS. CO., 277 U.S. 66.  NEITHER INVOLVED
AN AGREEMENT SIMILAR TO THE PROVISIONS OF THE PILOTAGE CLAUSE ON WHICH
THIS CASE TURNS."  287 U.S., AT 294-295.  (FN2) 

THE OPINION DISTINGUISHES THE STEAMER SYRACUSE AND THE WASH GRAY NOT
ON THE GROUND THAT THERE IS AN ESSENTIAL DIFFERENCE BETWEEN
CONSIDERATIONS OF POLICY APPLICABLE TO TOWAGE AND PILOTAGE, BUT
EXPRESSLY AND ONLY ON THE GROUND THAT THE PROVISIONS OF THE CONTRACTS
DIFFERED, THUS VIEWING THE EARLIER CASES AS INVOLVING NO MORE THAN
MATTERS OF CONSTRUCTION.  OF COURSE THERE ARE DIFFERENCES BETWEEN THE
SITUATION BEFORE THE COURT IN SUN OIL AND THE ONE NOW BEFORE US.  BUT
THE ANALYSIS WHICH LED THE COURT TO ITS CONCLUSION THERE IS EQUALLY
APPLICABLE HERE AND CALLS FOR UPHOLDING THE VALIDITY OF THIS
AGREEMENT. 

DECISIONS IN THE LOWER COURTS. 

1.  CONCEDEDLY, THE SECOND CIRCUIT HAS, EVER SINCE THE DECISION IN
THE OCEANICA, 170 F. 893 (1909), (FN3) UPHELD THE VALIDITY OF
AGREEMENTS WHEREBY TOWERS AVOID LIABILITY FOR THEIR OWN NEGLIGENCE. 
ITS MOST RECENT REITERATION OF THIS POSITION IS FOUND IN NIELSON V.
UNITED STATES, 209 F.2D 958, TODAY REVERSED ON OTHER GROUNDS, POST, P.
129.  TO THE SECOND CIRCUIT THERE MUST NOW BE ADDED THE COURTS OF
APPEALS FOR THE FOURTH AND FIFTH CIRCUITS BY VIRTUE OF THEIR DECISIONS
IN THIS CASE AND IN BOSTON METALS CO. V. THE WINDING GULF.  (FN4)  IT
IS NOT WITHOUT SIGNIFICANCE THAT THE SECOND AND FIFTH CIRCUITS ARE
FIRST AND SECOND IN VOLUME OF ADMIRALTY LITIGATION. 

2.  IN A SERIES OF THREE CASES, THE SIXTH CIRCUIT HAS ASSIDUOUSLY
AVOIDED THE ISSUE OF VALIDITY OF EXCULPATORY CLAUSES, RESTING INSTEAD
UPON CONSTRUCTION OF THE CLAUSE IN ISSUE AS NOT REACHING THE NEGLIGENCE
INVOLVED.  GREAT LAKES TOWING CO. V. BETHLEHEM TRANSP.  CORP., 65 F.2D
543; (FN5) GREAT LAKES TOWING CO. V. AMERICAN S.S. CO., 165 F.2D 368;
(FN6) WALTER G. HOUGLAND, INC. V. MUSCOVALLEY, 184 F.2D 530.  (FN7) 

3.  THE NINTH CIRCUIT IS THE ONLY CIRCUIT WHICH HAS INDICATED - BUT
NOT DECIDED - THAT IT MIGHT DIFFER WITH THE SECOND, FOURTH AND FIFTH
CIRCUIT COURTS OF APPEALS WERE IT FORCED TO PASS SQUARELY ON THE ISSUE
OF VALIDITY.  THE STATEMENT IN THE SYLLABUS TO THE FIRST OF THE
RELEVANT CASES IN THE NINTH CIRCUIT, ALASKA COMMERCIAL CO. V. WILLIAMS,
128 F. 362, IS INACCURATE.  WHILE IT SAYS THAT A TUG "CANNOT RELIEVE
ITSELF BY CONTRACT FROM LIABILITY FOR THE FAILURE TO EXERCISE
REASONABLE CARE AND SKILL," THE COURT CONCLUDED THAT THE LOWER COURT
HAD PROPERLY EXCLUDED AN AMENDMENT TO THE PLEADINGS AND TESTIMONY
WHICH, IT WAS ALLEGED, WAS DESIGNED TO SHOW THE EXISTENCE OF AN
EXCULPATORY CLAUSE.  IT THEN MERELY ADDED: 

"BUT WE ARE OF THE OPINION THAT IF THE PLAINTIFF IN ERROR HAD PROVED
THE CONTRACT TO BE AS IN THE PROPOSED AMENDMENT IT WAS ALLEGED TO BE,
IT WOULD NOT HAVE AFFORDED IT EXEMPTION FROM LIABILITY IN THE PRESENT
CASE," CITING THE STEAMER SYRACUSE.  128 F., AT 366. 

MYLROIE V. BRITISH COLUMBIA TUG CO., 268 F. 449, INVOLVED A CONTRACT
OF TOWAGE WHICH STATED: 

"THAT THE TUG WILL RENDER TO THE SAID BARGE 'BANGOR' REASONABLE
ASSISTANCE FROM TIME TO TIME IN ANY EMERGENCY WHICH MIGHT ARISE  ...  .
THE TUG COMPANY IS NOT TO BE HELD LIABLE FOR ANY DAMAGE WHICH MIGHT
HAPPEN TO THE SAID BARGE 'BANGOR' OR ITS CARGO WHILE IN TOW OR AT
ANCHOR." 

THE BARGE HAD BEEN LOST AFTER A SUDDEN CHANGE OF COURSE BY THE TUG,
MADE WITHOUT WARNING TO THE BARGE, CAUSED THE TOWLINE TO SNAP.  THE
COURT OF APPEALS WAS READY TO HOLD, AND APPEARED TO VIEW THE ALASKA
COMMERCIAL CASE AS HOLDING, THAT THE TOWER COULD NOT, FOR REASONS OF
PUBLIC POLICY, AVOID LIABILITY FOR NEGLIGENCE.  SUCH A HOLDING ALSO WAS
ATTRIBUTED TO THE STEAMER SYRACUSE.  BUT, IN A RATHER CONFUSED OPINION,
THE COURT APPEARS TO ADOPT THE VIEW THAT THE EXCULPATORY CLAUSE
PRESUPPOSED THE TUG'S SEAWORTHINESS WHICH IN FACT WAS NEGATIVED BY THE
ABSENCE OF A SUFFICIENT CREW.  THUS THE CLAUSE WAS INAPPLICABLE.  268
F., AT 453.  THE DECISION WAS AFFIRMED IN THIS COURT ON THE GROUND
THAT, AS A MATTER OF CONSTRUCTION AND IN ACCORDANCE WITH ENGLISH
DECISIONS, THE CLAUSE MEANT ONLY THAT THE TUG SHOULD NOT BE LIABLE IF
IT HAD RENDERED REASONABLE ASSISTANCE TO THE BARGE.  HOLDING THAT THE
TUG HAD NOT DONE SO, THE COURT STATED:  "THIS MAKES IT UNNECESSARY FOR
US TO CONSIDER THE CONTENTION ON BEHALF OF THE BARGE THAT THE EXEMPTION
CLAUSE IS VOID."  BRITISH COLUMBIA MILLS TUG & BARGE CO. V. MYLROIE,
259 U.S. 1, 12. 

SUBSEQUENT DEVELOPMENTS HAVE NOT MADE THE NINTH CIRCUIT'S POSITION
ANY CLEARER.  IN SACRAMENTO NAVIGATION CO. V. SALZ, 3 F.2D 759,
REVERSED HERE ON OTHER GROUNDS, 273 U.S. 326, THAT CIRCUIT CONSIDERED A
CONTRACT BETWEEN THE OWNER OF A BARGE AND A SHIPPER OF MERCHANDISE
WHICH EXCUSED THE FORMER FROM LIABILITY FOR "DANGERS OF FIRE AND
NAVIGATION."  THE TUG, ALSO OWNED BY THE BARGEOWNER, NEGLIGENTLY CAUSED
LOSS OF THE BARGE AND ITS CARGO.  THE COURT DISMISSED THE CONTENTION
THAT THE BARGEOWNER MIGHT AVOID LIABILITY UNDER THE QUOTED PROVISION OF
THE CONTRACT EXPRESSLY AS A MATTER OF CONSTRUCTION, AND, IN SO DOING,
INDICATED THAT THE STEAMER SYRACUSE, THE OCEANICA, AND MYLROIE MERELY
REFLECTED DIFFERING CONSTRUCTIONS OF EXCULPATORY CLAUSES.  (FN8)  THIS
OPINION THUS CHOSE TO IGNORE THE DICTA OF MYLROIE.  BUT SUBSEQUENT
DICTA IN HALL-SCOTT MOTOR CAR CO. V. UNIVERSAL INS. CO., 122 F.2D 531,
INDICATE THAT, AT LEAST AS OF 1941, THE NINTH CIRCUIT FELT THAT
PRECEDENT IN THIS COURT AND THAT CIRCUIT'S OWN DECISIONS HAD
ESTABLISHED THE INVALIDITY OF TOWAGE RELEASE-FROM-NEGLIGENCE CLAUSES. 
IN THAT CASE, THE COURT REVIEWED THE TOWAGE CASES IN CONSIDERING
ANALOGIES TO THE CASE BEFORE IT, ONE IN WHICH A PLEASURE CRUISER BEING
REPAIRED IN DRY DOCK WAS LOST THROUGH FIRE AND THE PRINCIPAL DEFENSE
WAS BASED ON A CLAUSE IN THE REPAIR CONTRACT STATING THAT THE REPAIRER
"WILL NOT BE HELD RESPONSIBLE FOR ANY DAMAGE TO CRUISER 'PACIFICA'  ...
WHILE THE ENGINE INSTALLATION IS BEING MADE."  THE COURT STATED: 

"THIS COURT HAS HELD THAT A CONTRACT RELIEVING A TOWING VESSEL FROM
THE RESULTS OF ITS NEGLIGENCE IS VOID AND HAS BASED ITS DECISIONS UPON
THE DECISION OF THE SUPREME COURT IN 1870, IN THE CASE OF THE STEAMER
SYRACUSE  ...  ,"  CITING ALASKA COMMERCIAL AND MYLROIE.  122 F.2D, AT
535. 

AFTER REVIEWING CONTRA DECISIONS IN OTHER CIRCUITS: 

"THE SUPREME COURT HAS UNQUESTIONABLY SETTLED THIS DIFFERENCE IN
COMPANIA DE NAVEGACION V. PHENIX INS. CO., 277 U.S. 66  ...  . 

"IF THESE DECISIONS OF THE SUPREME COURT AND OF THIS COURT ARE
APPLICABLE TO A MARITIME CONTRACT TO REPAIR A SHIP IT IS CLEAR THAT
SUCH A CONTRACT TO EXCULPATE THE CONTRACTOR FOR HIS NEGLIGENCE IS
INVALID."  122 F.2D, AT 535-536. 

THE COURT DECIDED, HOWEVER, THAT THE PRINCIPLES OF THE SUN OIL CASE
WERE INSTEAD TO BE APPLIED, HOLDING THE EXCULPATORY CLAUSE VALID. 

4.  IT IS SAFE TO SAY THAT, ASIDE FROM TEMPORARY INTRACIRCUIT
CONFLICTS WITHIN THE SECOND CIRCUIT, (FN9) NEVER SINCE ORDINARY TOWAGE
HAS BEEN RECOGNIZED AS NOT AMOUNTING TO COMMON CARRIAGE (FN10) HAS
THERE BEEN A DECISION IN ANY DISTRICT COURT HOLDING INVALID CLAUSES
WHICH WERE CLEARLY DESIGNED TO RELIEVE A TUG FROM LIABILITY IN THE
COURSE OF ITS SERVICE AS A PRIVATE CARRIER.  EVERY DECISION IS EITHER
LIMITED TO A CONSTRUCTION OF THE CLAUSE OR, IF EXPRESSIONS CONCERNING
VALIDITY APPEAR, THEY ARE THE MEREST DICTA.  (FN11) 

INTERPRETATION AND VALIDITY OF THE EXCULPATORY TOWAGE CLAUSE. 

WE ARE NOT PRESENTED WITH A LONGSTANDING ADMIRALTY RULE BASED ON
PUBLIC POLICY INVALIDATING CONTRACTS RELEASING TOWERS FROM ALL
LIABILITY FOR THEIR NEGLIGENCE.  IN FACT, WE ARE PRESENTED WITH NO RULE
OTHER THAN THAT OF THE SECOND CIRCUIT AND THOSE FOLLOWING IT.  PRIVATE
PARTIES HAVE BEEN FREE FOR OVER A CENTURY AND A HALF TO CONTRACT WITH
REFERENCE TO THE RIGHTS AND LIABILITIES INCIDENT TO TOWAGE.  WE CANNOT
ASSUME THAT THEY HAVE BEEN MISLED INTO A CONTRARY BELIEF.  CRITICAL
ANALYSIS OF THE AUTHORITIES, BOTH IN THIS COUNTRY AND IN ENGLAND,
(FN12) WOULD NOT INDICATE THAT THIS FREEDOM HAD BEEN CIRCUMSCRIBED BY
JUDICIAL DECISION.  (FN13) 

IF DEFERENCE TO CONGRESS AS THE ARBITER OF PUBLIC POLICY IS CALLED
FOR, SEE WILBURN BOAT CO. V. FIREMAN'S FUND INS. CO., 348 U.S. 310;
HALCYON LINES V. HAENN SHIP CORP., 342 U.S. 282, CERTAINLY IT SHOULD
LEAD US NOT TO UPSET A PRACTICE OF THE SHIPPING INDUSTRY SANCTIONED BY
THE COURTS MOST CONCERNED WITH IT.  AND IF INFERENCES ARE TO BE DRAWN
FROM EXISTING LEGISLATION, IT MAY BE SIGNIFICANT THAT CONGRESS' CAREFUL
REGULATION OF FREEDOM TO LIMIT LIABILITY IN THE CASE OF PUBLIC CARRIERS
OF PASSENGERS OR CARGO (46 U.S.C.  SECS. 183C, 190-192, 1300-1308) IS,
EITHER EXPRESSLY OR BY VIRTUE OF THE JUDICIAL "GLOSS" PLACED UPON THESE
SUGGESTS THAT, IN THE VIEW OF CONGRESS, THERE IS NO OVERRIDING PUBLIC
POLICY REQUIRING SIMILAR LIMITATIONS IN THE FIELD OF PRIVATE TOWAGE. 

THIS COURT HAS NOT, TO BE SURE, IN EVERY INSTANCE AWAITED
CONGRESSIONAL ACTION BEFORE IMPOSING VIEWS OF PUBLIC POLICY UPON
CONTRACTING PARTIES.  BUT IT HAS LIMITED ITS INTERFERENCE IN THE FIELD
OF TRANSPORTATION TO RELATIONSHIPS BETWEEN COMMON CARRIERS AND THEIR
CUSTOMERS, CONCEDEDLY NOT THE RELATIONSHIP BEFORE US. WE HAVE HELD THAT
THE TOWAGE RELATIONSHIP IS EVEN LESS THAN ONE OF MARINE BAILMENT,
STEVENS V. THE WHITE CITY, 285 U.S. 195, AS TO WHICH, UNDER THE RULINGS
OF THE LOWER FEDERAL COURTS, PUBLIC POLICY DOES NOT INVALIDATE
EXCULPATORY CLAUSES.  NEWPORT NEWS SHIPBUILDING & DRY DOCK CO. V.
UNITED STATES, 34 F.2D 100 (C.A. 4TH CIR.); HALL-SCOTT MOTOR CAR CO. V.
UNIVERSAL INS.  CO., 122 F.2D 531 (C.A. 9TH CIR.); SEE INTERNATIONAL
MERCANTILE MARINE S.S. CO. V. W.&A. FLETCHER CO., 296 F. 855, 860
(C.A.2D CIR.); RESTATEMENT, CONTRACTS, SECS. 574, 575. 

THE CONSIDERATIONS WHICH HAVE GOVERNED THIS COURT'S ROLE AS ARBITER
OF THE PUBLIC INTEREST IN EXCULPATORY CONTRACTS WERE RECENTLY
ENUNCIATED BY THE UNANIMOUS COURT IN THE SUN OIL CASE.  THEY BEAR
REPETITION: 

"SO FAR AS CONCERNS THE SERVICE TO BE RENDERED UNDER THE AGREEMENT,
RESPONDENT WAS NOT A COMMON CARRIER OR BAILEE OR BOUND TO SERVE OR
LIABLE AS SUCH.  TOWAGE DOES NOT INVOLVE BAILMENT  ...  . THERE IS NO
FOUNDATION IN THIS CASE FOR THE APPLICATION OF THE DOCTRINE THAT COMMON
CARRIERS AND OTHERS UNDER LIKE DUTY TO SERVE THE PUBLIC  ...  CANNOT BY
ANY FORM OF AGREEMENT SECURE EXEMPTION FROM LIABILITY FOR LOSS OR
DAMAGE CAUSED BY THEIR OWN NEGLIGENCE  ...  .  RESPONDENT HAD NO
EXCLUSIVE PRIVILEGE OR MONOPOLY  ...  .  THERE IS NOTHING TO SUGGEST
THAT THE PARTIES WERE NOT ON EQUAL FOOTING OR THAT THEY DID NOT DEAL AT
ARM'S LENGTH."  287 U.S., AT 294. 

THESE CONSIDERATIONS OF POLICY ARE EQUALLY PRESENT HERE AND CALL FOR
THE RESULT REACHED IN SUN OIL. 

NOTHING IN THE RECORD HINTS AT ANY INEQUALITY OF BARGAINING POWER
BETWEEN THE PARTIES TO THIS CONTRACT, NOR IS THERE ANY BASIS FOR TAKING
JUDICIAL NOTICE THAT THE TUG INDUSTRY AS AN INDUSTRY IS IN CONCENTRATED
OWNERSHIP.  (FN14)  THE TOWING SERVICE WAS HERE UNDERTAKEN BY A
GOVERNMENT CORPORATION.  CERTAINLY WE CANNOT ASSUME THAT THE GOVERNMENT
IS EXPLOITING THE MARITIME SERVICES IT IS RENDERING IN AN UNREASONABLE
OR COERCIVE MANNER.  NOR WAS IT SUGGESTED THAT NO TUG COMPANY AVAILABLE
FOR THE SERVICES INVOLVED WOULD CONSENT TO DELETION OF THE EXCULPATORY
CLAUSE UPON PAYMENT OF A REASONABLE CONSIDERATION.  NOR ARE WE INFORMED
AS TO WHETHER SUCH CLAUSES WERE UNIFORMLY FOUND IN THE STANDARD
CONTRACTS OFFERED BY TUG COMPANIES IN THE LOCALITY.  HAD SUCH
UNIFORMITY OF PRACTICE BEEN SHOWN, IT WOULD NOT NECESSARILY REFLECT
MORE THAN UNIVERSAL SATISFACTION WITH SUCH AN ARRANGEMENT; IT WOULD
HARDLY DEMONSTRATE NEED FOR JUDICIAL WARDSHIP.    THE ARGUMENT IS MADE
THAT PERMITTING THE PARTIES TO GRANT IMMUNITY TO THE TUG WILL STIMULATE
IRRESPONSIBILITY, OR, AT LEAST, THAT IT IS NECESSARY TO FORCE THE TUG
TO BEAR LOSSES RESULTING FROM ITS NEGLIGENCE IN ORDER TO PROVIDE AN
INCENTIVE TO REASONABLE CARE.  IN THE COMMERCIAL SETTING OF THE TOWAGE
INDUSTRY THIS ARGUMENT HAS LITTLE FORCE, UNLESS WE ARE PREPARED ALSO TO
FORBID THE TUG TO INSURE AGAINST SUCH LOSSES OR LIABILITIES.  IF NOT,
THEN THE QUESTION ULTIMATELY IS WHETHER PUBLIC POLICY REQUIRES THAT THE
TUG, RATHER THAN THE TOW, SHALL BEAR THE COST OF INSURANCE.  INDEED, IN
ALL LIKELIHOOD, THE ECONOMIC BURDEN WILL FALL UPON THE TOW IN EITHER
CASE.  IN THE ABSENCE OF ANYTHING IN THE RECORD, OR ANY FACTS OF WHICH
THIS COURT MAY TAKE JUDICIAL NOTICE, THAT THE TUG HAS EXPLOITED AN
UNFAIR BARGAINING POSITION, THERE IS NO REASON WHY THE PARTIES SHOULD
NOT BE FREE TO DISTRIBUTE THIS COST AS THEY SEE FIT. 

IT IS SUGGESTED THAT A DISTINCTION SHOULD BE DRAWN BETWEEN EXEMPTION
OF PILOTS FROM LIABILITY AND EXEMPTION OF TOWERS.  RELIANCE IS PLACED
ON THE UNIQUE POSITION OF PILOTS IN THE MARITIME WORLD AND THE
EXTENSIVE REGULATION TO WHICH THEY ARE SUBJECTED:  THEY ARE ASSIMILATED
TO PUBLIC OFFICERS.  IF THE PILOTAGE INVOLVED IN SUN OIL TOOK PLACE IN
THE DETAILED REGULATORY CONTEXT THUS SUGGESTED, DECISION IN THIS CASE
SHOULD FOLLOW A FORTIORI FROM SUN OIL IN ALLOWING THE AGREEMENT OF THE
PARTIES TO STAND.  FOR QUASI-PUBLIC STATUS AND DETAILED REGULATION OF
THE QUALIFICATIONS FOR, AND MANNER OF, DOING BUSINESS, WITH THE LIMITED
COMPETITION WHICH SUCH REGULATION CONSTRAINS, ARE CHARACTERISTIC OF THE
PUBLIC CARRIER.  IF THE RESULT IN SUN OIL WAS REACHED DESPITE
SIMILARITIES THAT BROUGHT THE SITUATION IN PROXIMITY TO DECISIONS
DENYING COMMON CARRIERS THE RIGHT TO CONTRACT AGAINST LIABILITY FOR
NEGLIGENCE, THE ABSENCE OF THESE FACTORS HERE EMPHASIZES THE
APPLICABILITY OF THE ANALYSIS OF THAT CASE TO THE PROBLEM BEFORE US. 

THERE IS IN EACH OF THESE CASES DECIDED TODAY A QUESTION OF
CONSTRUCTION OF THE EXCULPATORY CLAUSE.  WE HAVE NOTED THAT THE COURTS
HAVE WISELY INSISTED ON CLEAR LANGUAGE TO AVOID THE INCIDENTS WHICH THE
LAW, APART FROM THE VOLUNTARY ARRANGEMENTS OF THE PARTIES, APPLIES TO
THE TOWAGE RELATIONSHIP.  IN THE PRESENT CASE, THE CLAUSE USED SEEMS
PROOF AGAINST A CONSTRUCTION WHICH WOULD EXCLUDE FROM ITS OPERATION
NEGLIGENCE OF THE TUG.  THE CLAUSE PROVIDES THAT THE SERVICE IS TO BE
DONE "AT THE SOLE RISK" OF THE TOW, THAT THE TUG IS NOT TO BE "LIABLE
FOR ANY LOSS OR DAMAGE  ... HOWEVER OCCURRING" AND FINALLY THAT THE
MASTER AND CREW OF THE TUG "SHALL BECOME AND BE THE SERVANTS" OF THE
TOW WHETHER OR NOT THE TOW "ASSISTS IN THE SERVICE IN ANY WAY AND
IRRESPECTIVE OF WHETHER THEY BE ABOARD  ...  OR IN COMMAND" OF THE
TOW.  (FN15) 

THE DISTRICT COURT HELD THAT, WHILE THE "SOLE RISK" CLAUSE DID NOT
SUFFICIENTLY SPELL OUT AN EXEMPTION FROM LIABILITY FOR NEGLIGENCE
RESULTING IN INJURY TO THE TOW, THE OTHER CLAUSE, TERMED THE "PILOTAGE
CLAUSE," DID SO.  THE COURT OF APPEALS HELD THAT BOTH REACHED THE
LIABILITY INVOLVED, CITING THE DECISION OF THE SECOND CIRCUIT IN THE
OCEANICA.  WHETHER OR NOT THE "SOLE RISK" PHRASEOLOGY IS SUFFICIENTLY
DIFFERENT FROM THAT INVOLVED IN THE STEAMER SYRACUSE ("RISK") TO
JUSTIFY CONSTRUING IT TO AVOID LIABILITY HERE, THE DECLARATION THAT THE
TUG'S PERSONNEL ARE TO BE CONSIDERED THE SERVANTS OF THE TOW, READ IN
CONTEXT, DOES MANIFEST AN INTENTION THAT THE TUG SHALL NOT BE HELD
LIABLE FOR INJURY TO THE TOW.  HERE THE CLAUSE MAKES IT CLEAR THAT THE
TUG'S CREW ARE TO BE REGARDED AS THE SERVANTS OF THE TOW WHETHER OR NOT
THERE IS IN FACT ANY DIRECTION OR CONTROL EXERCISED BY THE TOW. 

I WOULD AFFIRM. 

FN1  IT IS SIGNIFICANT THAT THE ONLY CONTRACTUAL DISPUTE IN THE CASE
RELATED TO WHETHER OR NOT THIS RECEIPT FORMED A PART OF THE CONTRACT
BETWEEN THE PARTIES.  SEE 12 WALL., AT 169.  IT IS TO THIS DISPUTE THAT
THE COURT DIRECTED ITSELF IN ITS OPENING STATEMENT THAT IT WAS
"UNNECESSARY TO CONSIDER THE EVIDENCE RELATING TO THE ALLEGED CONTRACT
OF TOWAGE."  APPARENTLY THIS CLAUSE WAS DESIGNED TO PREVENT A TUG FROM
BEING HELD TO A STANDARD STRICTER THAN THAT OF ORDINARY CARE, WHICH
LIBELLANT ARGUED SHOULD BE IMPOSED IF THE RECEIPT WAS NOT A PART OF THE
CONTRACT.  CF. NOTE 3, INFRA. 

FN2  SEE ALSO NEW YORK CENTRAL R. CO. V. THE TALISMAN, 288 U.S. 239,
242, STATING THE DETERMINATIVE FACTS OF THE SUN OIL CASE TO BE THAT
"THE TOWAGE COMPANY WAS NOT BOUND TO RENDER THE SERVICE THERE INVOLVED
AND WAS NOT A COMMON CARRIER OR LIABLE AS SUCH.  THAT CASE, AND THE
CASES CITED WHICH AROSE UNDER CONTRACTS FOR TOWAGE, PLAINLY HAVE NO
APPLICATION  ...  ." 

FN3  THE COURT OF APPEALS DID NOT THERE PURPORT TO DIFFER WITH ANY
DECISION OF THIS COURT ON THE QUESTION OF VALIDITY OF EXCULPATORY
TOWAGE CLAUSES.  IT SAID OF THE STEAMER SYRACUSE:  "THE LEARNED JUDGE
MUST HAVE MEANT THAT AN AGREEMENT BY THE TOW TO TOW AT HER OWN RISK
SHOULD NOT BE CONSTRUED TO COVER THE TUG'S NEGLIGENCE."  170 F., AT
895.  THE COURT OF APPEALS FELT JUSTIFIED IN REACHING A DIFFERENT
CONSTRUCTION OF A SIMILAR AGREEMENT BECAUSE IT HAD BECOME CLEAR THAT A
TUG IS NOT IN RELATION TO THE TOW A COMMON CARRIER AND THUS, THE COURT
REASONED, NO RISK COULD NOW BE REFERRED TO BY SUCH CLAUSES EXCEPT THE
TUG'S NEGLIGENCE.  THE DISCUSSION OF THE MAJORITY RELATED ENTIRELY TO
CONSTRUCTION, NOT TO VALIDITY.  THE LATER STATEMENT ON REHEARING - "WE
DO APPRECIATE KEENLY THAT THE DECISION OF THE MAJORITY OF THE COURT AS
TO THE RIGHT OF A TUG TO CONTRACT AGAINST HER OWN NEGLIGENCE IS A
DEPARTURE FROM PREVIOUS DECISIONS.  THE QUESTION SHOULD, AND WE HOPE
WILL, BE SET AT REST IN THIS CASE BY THE SUPREME COURT," 170 F., AT 900
- MUST EITHER INACCURATELY EXPRESS THE MEANING OF THE COURT OR REFER TO
THE FACT THAT AT THAT TIME THE CAUTIOUS CONSTRUCTIONAL APPROACH OF THE
LOWER FEDERAL COURTS HAD PRODUCED NO AFFIRMANCE OF THE VALIDITY OF SUCH
CLAUSES AND ONE DECISION WHICH, UPON AN ANALOGY SINCE DISCREDITED, HAD
DECLARED THEM INVALID.  SEE N. 11, INFRA. 

FN4  209 F.2D 410, REV'D, POST, P. 122.  IN THE COURSE OF ITS
OPINION, THE COURT OF APPEALS STATED: 

"WE ARE NOT CALLED UPON TO DECIDE WHETHER THE OWNER OF A TUG OR THE
TUG ITSELF, WHICH IS OPERATING UNDER A CONTRACT CONTAINING THE STANDARD
TOWING CONDITIONS, MAY EVER ESCAPE LIABILITY TO A THIRD PARTY FOR
INJURIES CAUSED BY ITS NEGLIGENCE."  209 F.2D, AT 414. 

IN CONTEXT, HOWEVER, IT IS CLEAR THAT THIS MERELY AMOUNTS TO A
RESERVATION OF THE QUESTION WHETHER THE THIRD PARTY'S RIGHT TO SUE THE
TUG WAS AFFECTED BY THE PILOTAGE CLAUSE.  IN PERMITTING THE THIRD PARTY
TO RECOVER DIRECTLY FROM THE TOW OWNER BY VIRTUE OF THE CLAUSE, THE
FOURTH CIRCUIT NECESSARILY AFFIRMED THE RIGHT OF THE TUG TO SHIFT THE
BURDEN OF LIABILITY TO THE TOW. 

FN5  THE CLAUSE INVOLVED STATED: 

"WHEN A VESSEL IS TOWED OR PUSHED STERN FIRST BY ONE TUG, THE SERVICE
WILL BE UNDER THE CONTROL AND DIRECTION OF THE MASTER OF THE VESSEL SO
ASSISTED, AND THE TUG WILL NOT BE LIABLE FOR ANY DAMAGES THAT MAY BE
SUSTAINED OR CAUSED  ...  ." 

THE TUG IN THIS CASE HAD BEEN ENGAGED IN PUSHING A STEAMER STERN
FIRST AWAY FROM ITS PIER WHEN THE BOW OF THE STEAMER STRUCK THE DOCK. 
THE COURT OF APPEALS HELD THE QUOTED CLAUSE INAPPLICABLE BECAUSE IN
FACT THE TUG HAD NOT BEEN OPERATING UNDER THE CONTROL AND DIRECTION OF
THE MASTER OF THE STEAMER.  NO QUESTION OF THE VALIDITY OF AN
EXCULPATORY CLAUSE WAS INVOLVED. 

FN6  A CLAUSE SUBSTANTIALLY SIMILAR TO THAT INVOLVED IN THE EARLIER
GREAT LAKES CASE, SUPRA, N. 5, WAS LIKEWISE CONSTRUED TO BE
INAPPLICABLE ON THE GROUND THAT THE TUG HAD BEEN OPERATING
INDEPENDENTLY OF ANY DIRECTION FROM THE TOW AT THE TIME OF THE
ACCIDENT.  IN THE COURSE OF THE OPINION THE COURT STATED: 

"WERE WE THEREFORE COMPELLED TO DECIDE THE CASE UPON THE VALIDITY OF
PARAGRAPH 17, IT MIGHT SEEM TO US THAT DECISION MUST BE CONTROLLED BY
THE DOCTRINE OF THE SYRACUSE, WHATEVER MIGHT BE OUR OWN VIEWS OF THE
PRINCIPLE OR ITS APPLICABILITY TO THE PRESENT CASE.  A NARROWER GROUND
FOR DECISION, HOWEVER, APPEARS."  165 F.2D, AT 371. 

FN7  THIS CASE INVOLVED, APPARENTLY, TOWAGE UNDER A CLAUSE SIMILAR TO
THAT CONSIDERED IN THE STEAMER SYRACUSE, STATING THAT THE SERVICE WAS
TO BE PERFORMED "AT THE OWNER'S RISK."  IT WAS CONTENDED THAT THIS
CLAUSE RELIEVED THE TUG FROM LIABILITY FOR LOSS OF ONE OF THE TOWED
VESSELS WHICH SANK IN THE WAKE OF A LARGER VESSEL.  THE COURT MERELY
STATED:  "THIS CONTENTION CANNOT BE SUSTAINED UNDER THE AUTHORITIES,"
184 F.2D, AT 531, CITING THE STEAMER SYRACUSE AND THE WASH GRAY WITHOUT
INDICATING THAT THEY INVOLVED MORE THAN CONSTRUCTION OF SIMILAR
CLAUSES. 

FN8  "  ...  THE EXCEPTIONS THEREIN EXPRESSED EXTEND ONLY TO DANGERS
OF FIRE AND NAVIGATION  ... AND THEY APPLY ONLY TO THE BARGE, AND NOT
TO THE TUG  ...  .  NO TUG WAS REFERRED TO IN CONNECTION WITH THE
CONTRACT OF TRANSPORTATION.  THE EXEMPTION CLAUSE, THEREFORE, DOES NOT
EXCUSE NEGLIGENT TOWAGE.  THE STEAMER SYRACUSE, 12 WALL.  167  ...
ALASKA COMMERCIAL CO. V. WILLIAMS  ...  MYLROIE V. BRITISH COLUMBIA
MILLS TUG & BARGE CO  ...  .

"THE APPELLANT CITES THE OCEANICA  ...  (THERE THE SECOND CIRCUIT),
WHILE ACCEPTING THE RULE THAT A CONTRACT WILL NOT BE CONSTRUED TO COVER
THE CARRIER'S NEGLIGENCE, UNLESS THE INTENTION TO DO SO IS EXPRESSLY
STATED, HELD, ONE JUDGE DISSENTING, THAT A TUG, BEING ONLY LIABLE FOR
NEGLIGENCE, IF THE TOW AGREES TO ASSUME ALL RISKS, NO RISKS CAN BE
MEANT, EXCEPT  ...  THE CONSEQUENCES OF HER OWN NEGLIGENCE  ...  .  WE
THINK THAT IT IS A DEPARTURE FROM THE PRINCIPLES ANNOUNCED IN THE
DECISIONS OF THE SUPREME COURT WHICH WE HAVE CITED.  IT MAY BE SAID, BY
WAY OF DISTINGUISHING  ...  THE OCEANICA  ...  THAT THE COURT FOUND IN
THE TERMS THEREOF AN INTENTION OF THE CONTRACTING PARTIES TO ABSOLVE
THE TUG FROM THE CONSEQUENCES OF ITS OWN NEGLIGENCE, WHEREAS, IN THE
CASE AT BAR, THE CONTRACT IS WHOLLY BETWEEN A SHIPPER OF CARGO AND THE
OWNER OF THE BARGE  ...  ."  3 F.2D, AT 761. 

FN9  COMPARE PETTERSON LIGHTERAGE & TOWING CORP. V. THE J. RAYMOND
RUSSELL, 87 F. SUPP. 467 (VIEWING THE OCEANICA AS HAVING BEEN OVERRULED
BY THE WASH GRAY), WITH THE PRIMROSE, 3 F. SUPP. 267, AND THE JOHN J.
FEENEY, 3 F. SUPP. 270 (VIEWING EXCULPATORY CLAUSES AS VALID).  THE
COURT OF APPEALS HAS, HOWEVER, CONSISTENTLY HELD TO THE VIEWS
ENUNCIATED IN THE OCEANICA AND HAS RESOLVED ALL SUCH CONFLICTS IN FAVOR
OF THE VALIDITY OF EXCULPATORY TOWAGE CLAUSES.  THAT DECISION WAS A
DEPARTURE FROM ITS EARLIER NARROW CONSTRUCTION OF EXCULPATORY TOWAGE
CLAUSES, SEE THE EDMUND L. LEVY, 128 F. 683; THE SYRACUSE, 23 FED. CAS.
593, NO. 13,717; AFF'D 12 WALL.  167, BUT NOT FROM ANY DECISION TURNING
UPON VALIDITY. 

FN10  OF COURSE THERE MAY BE INSTANCES WHERE, BECAUSE OF THE MODE AND
CIRCUMSTANCES OF OPERATION, OR FOR PURPOSES OF REGULATORY STATUTES,
TOWING MAY BE HELD TO INVOLVE COMMON CARRIAGE.  SEE CORNELL STEAMBOAT
CO. V. UNITED STATES, 321 U.S. 634. 

FN11  AMONG THE CASES CITED FOR THE PROPOSITION THAT SUCH CLAUSES ARE
INVALID, ONE, THE RESCUE, 24 F. 190 (D.C.W.D. PA.), MAY SO HOLD, BUT IF
SO ON THE THEORY THAT TOWAGE IS EQUIVALENT TO COMMON CARRIAGE, A VIEW
NOT NOW TENABLE.  TWO OTHERS, THE MONARCH, 235 F. 795, 799 (D.C.N.D.
FLA.), AND THE SEA LION, 12 F.2D 124, 126 (D.C.N.D. CALIF.), CONTAIN
DICTA TO THE EFFECT THAT SUCH CLAUSES ARE INVALID.  IN BOTH CASES,
HOWEVER, IT WAS HELD THAT THE TUG WAS NOT NEGLIGENT AND THE LIBELS WERE
DISMISSED.  CONTRARY DICTA ARE FOUND IN FOUR OTHER CASES.  THE PACIFIC
MARU, 8 F.2D 166, 170-173 (D.C.S.D. GA.); COMPANIA DE NAVEGACION,
INTERIOR, S.A. V. FIREMAN'S FUND INS. CO., 14 F.2D 196, 200, AFF'D 277
U.S. 66; MENGEL CO. V. INLAD WATERWAYS CORP., 34 F. SUPP. 685, 690-692;
COMPANIA DE NAVEGACION CRISTOBAL, S.A., V. THE LISA R., 116 F. SUPP.
560, 561 (ALL D.C.E.D. LA.).  ALL OTHER CASES DO NOT EXPRESSLY GO
FURTHER THAN TO DETERMINE THAT THE CLAUSE INVOLVED DID NOT, AS A MATTER
OF CONSTRUCTION, OPERATE TO RELIEVE THE TUG FROM LIABILITY FOR THE
PARTICULAR NEGLIGENCE INVOLVED.  THESE INCLUDE THE SOMERS N. SMITH, 120
F. 569 (D.C. ME.); THE VIM, 40 F.2D 638 (D.C.R.I.); THE M.J. CUMMINGS,
18 F. 178 (D.C.N.D.N.Y.); THE JONTY JENKS, 54 F. 1021 (D.C.N.D.N.Y.);
THE OCEANICA, 144 F. 301 (D.C.W.D.N.Y.), REV'D, 170 F. 893; ULRICH V.
THE SUNBEAM, 24 FED. CAS. 515, NO. 14,329 (D.C.N.J.); VANDERSLICE V.
THE SUPERIOR, 28 FED. CAS. 970, NO. 16,843 (D.C.E.D. PA.); THE SKAGWAY,
1925 AM. MAR. CAS. 1133 (D.C.W.D. WASH.). 

FN12  ENGLISH LAW RECOGNIZES THE VALIDITY OF TUG-TOW CONTRACTS
RELEASING THE TUG FROM LIABILITY FOR ITS OWN NEGLIGENCE.  E.G., THE
ALBION, (1953) 2 ALL ENG. 679 (C.A.); THE RAMSDEN, (1943) P.D. 46; THE
TASMANIA, 13 P.D. 110; THE UNITED SERVICE, 9 P.D. 3 (C.A.); THE
PRESIDENT VAN BUREN, 16 ASPINALL'S REP. (N.S.)  444; SEE MARSDEN,
COLLISIONS AT SEA (10TH ED. 1953), P. 216. 

JUST AS HAS BEEN TRUE OF DECISIONS IN THIS COUNTRY, HOWEVER, SPECIFIC
LANGUAGE DIRECTED AT LIABILITY FOR NEGLIGENCE MUST BE USED.  THUS,
WHERE THE CONTRACT MERELY STATED "ALL TRANSPORTING TO BE AT OWNERS'
RISK," THE TOWER WAS HELD LIABLE.  THE PHRASE WAS INTERPRETED MERELY TO
MEAN THAT IF THE TUG EXERCISED REASONABLE CARE AND SKILL THE TOW WOULD
INCUR THE RISKS INCIDENTAL TO NAVIGATION.  THE FORFARSHIRE, (1908) P.D.
339; SEE ALSO, THE WEST COCK, (1911) P.D. 208 (C.A.).  THE PARALLEL TO
THE STEAMER SYRACUSE AND THE WASH GRAY REQUIRES NO ELABORATION.    FN13
1 BENEDICT ON ADMIRALTY (5TH ED. 1925), P. 167, ASSERTS THAT A "TOWAGE
CONTRACTOR  ...  MAY BY CONTRACT LIMIT OR DISCLAIM LIABILITY FOR
NEGLIGENCE."  GRIFFIN, AMERICAN LAW OF COLLISION (1949), PP. 462-466,
AFTER DETAILED EXAMINATION OF THE CASES, CONCLUDES THAT THE APPARENT
CONFLICT IS OVER CONSTRUCTION RATHER THAN VALIDITY.  ROBINSON ON
ADMIRALTY (1939), PP. 670-673, SUGGESTS THAT THE WASH GRAY SEEMS
"OBLIQUELY" TO INDICATE A CONTRARY RULE, BUT JUXTAPOSES THE SUN OIL
CASE WITHOUT RESOLUTION OF ITS INCONSISTENCY WITH SUCH A VIEW OF THE
WASH GRAY. 

THE LEADING ENCYCLOPEDIAS OF AMERICAN CASE LAW NOTE AN APPARENT
CONFLICT AMONG THE CIRCUITS ON THE QUESTION OF VALIDITY OF THE TUG-TOW
EXCULPATORY CONTRACTS.  THEY DO NOT SUGGEST THAT THERE IS CONTROLLING
AUTHORITY IN THIS COURT, AND TEND TO SUPPORT THE VALIDITY OF SUCH
EXEMPTION.  86 CORPUS JURIS SECUNDUM (1954) 1038 ("IT HAS BEEN
JUDICIALLY NOTED THAT THE APPARENT CONFLICT IN AUTHORITY MAY ARISE FROM
FAILURE TO USE SUFFICIENTLY UNEQUIVOCAL LANGUAGE IN THE RELEASE
CLAUSE."); 63 CORPUS JURIS (1933) 60, SEC. 136 ("IT HAS BEEN SAID THAT
SUCH QUESTION HAS NOT YET BEEN AUTHORITATIVELY DETERMINED."); 48
AMERICAN JURISPRUDENCE (1943) 346, SEC. 508 ("ALTHOUGH THERE ARE SOME
HOLDINGS TO THE CONTRARY, THE WEIGHT OF JUDICIAL OPINION SEEMS TO FAVOR
THE VIEW THAT IT IS COMPETENT FOR A TOWER, BY A STIPULATION ASSENTED TO
BY THE TOW, TO EXEMPT ITSELF FROM LIABILITY FOR LOSS OR INJURY CAUSED
BY ITS OWN NEGLIGENCE."). 

FN14  THERE EXISTS NO COMPREHENSIVE STUDY OF THE TOWING INDUSTRY
DIRECTED TO THE CONSIDERATIONS IMPORTANT IN DETERMINING WHETHER OR NOT
IT IS CHARACTERIZED BY MONOPOLISTIC TENDENCIES OR INEQUALITIES OF
BARGAINING POWER.  HOWEVER, A STUDY OF TRANSPORTATION LINES IN THE
UNITED STATES PREPARED BY THE CORPS OF ENGINEERS, UNITED STATES ARMY,
LISTS MORE THAN 950 CONCERNS WHICH ARE DESCRIBED AS ENGAGING IN TOWING
OPERATIONS OF GENERAL OR SPECIALIZED CHARACTER THROUGHOUT THE UNITED
STATES.  SEE TRANSPORTATION LINES ON THE GREAT LAKES SYSTEM, 1955
(TRANSPORTATION SERIES 3); TRANSPORTATION LINES ON THE MISSISSIPPI
RIVER SYSTEM AND THE GULF INTRACOASTAL WATERWAY, 1954 (TRANSPORTATION
SERIES 4); TRANSPORTATION LINES ON THE ATLANTIC, GULF, AND PACIFIC
COASTS, 1954 (TRANSPORTATION SERIES 5).  IN ADDITION, THERE ARE
NUMEROUS TOWING CONCERNS WHICH OPERATE WITHIN A SINGLE PORT NOT LISTED
IN THESE STUDIES BUT SHOWN IN INDIVIDUAL STUDIES OF SPECIFIC PORTS. 
PORT SERIES REPORTS, PREPARED BY THE BOARD OF ENGINEERS FOR RIVERS AND
HARBORS.  THESE SOURCES REVEAL THAT MORE THAN 140 CONCERNS WERE ENGAGED
IN TOWING PETROLEUM PRODUCTS ON THE MISSISSIPPI AND ILLINOIS RIVERS, OR
GENERAL TOWAGE OPERATIONS ON THESE RIVERS, WHICH IS THE SERVICE
INVOLVED IN THIS CASE.  IT IS IMPOSSIBLE TO TELL HOW MANY OF THESE
CONCERNS WOULD HAVE BEEN AVAILABLE TO PETITIONER FOR THE SERVICES WHICH
THE FEDERAL BARGE LINES RENDERED.  BUT THESE ROUGH FIGURES CARRY NO
SUGGESTION OF THE FACTORS WHICH HAVE IN THE PAST LED US TO INVALIDATE
CLAUSES RELIEVING FROM LIABILITY FOR NEGLIGENCE, FOR THEY CERTAINLY DO
NOT WARRANT AN ASSUMPTION THAT TOWAGE ENJOYS A MONOPOLISTIC OR
COMPARABLE ECONOMICALLY COERCIVE POSITION. 

FN15  THE CLAUSE STATES IN FULL: 

"(4)  THE MOVEMENT CONTEMPLATED WILL BE DONE AT THE SOLE RISK OF THE
'CRAFT TO BE TOWED' AND ITS CARGO AND NEITHER THE BOATS AND/OR ANY
OTHER EQUIPMENT USED IN SAID SERVICE NOR THE OWNER, CHARTERER, OR HIRER
THEREOF SHALL BE LIABLE FOR ANY LOSS OR DAMAGE TO THE 'CRAFT TO BE
TOWED' OR ITS CARGO NOR FOR ANY DAMAGE DONE BY THE 'CRAFT TO BE TOWED,'
HOWEVER OCCURRING.  THE MASTERS AND CREWS AND EMPLOYEES OF ALL BOATS
AND/OR OTHER EQUIPMENT ASSISTING THE 'CRAFT TO BE TOWED' SHALL, IN THE
PERFORMANCE OF SAID SERVICE, BECOME AND BE THE SERVANTS OF THE 'CRAFT
TO BE TOWED,' REGARDLESS OF WHETHER THE 'CRAFT TO BE TOWED' ASSISTS IN
THE SERVICE IN ANY WAY AND IRRESPECTIVE OF WHETHER THEY BE ABOARD THE
'CRAFT TO BE TOWED' OR IN COMMAND THEREOF.  NOTHING HEREIN CONTAINED,
HOWEVER, SHALL BE CONSTRUED AS MAKING THE 'CRAFT TO BE TOWED,' ITS
OWNERS, CHARTERERS OR OPERATORS LIABLE OR RESPONSIBLE FOR LOSS OF OR
DAMAGE TO THE PROPERTY OF FEDERAL BARGE LINES OR THIRD PARTIES OR FOR
LOSS OF LIFE OR PERSONAL INJURY FOR WHICH THE 'CRAFT TO BE TOWED' ITS
OWNERS, CHARTERERS OR OPERATORS WOULD NOT OTHERWISE BE LIABLE OR
RESPONSIBLE. 

"(5)  'OWNER' AGREES TO INDEMNIFY AND HOLD HARMLESS FEDERAL BARGE
LINES FROM ANY LIABILITY TO OR FOR ACCOUNT OF THE CREW OF THE 'CRAFT TO
BE TOWED' BECAUSE OF ANY ACCIDENT, DAMAGE, INJURY OR LOSS OF LIFE TO
THE SAID CREW, OR ANY LOSS OF PERSONAL PROPERTY OR EFFECTS OF THE SAID
CREW, HOWEVER ARISING, AND THE 'OWNER' AGREES TO DEFEND ANY AND ALL
SUITS OR OTHER ACTIONS WHICH MAY BE BROUGHT AGAINST FEDERAL BARGE LINES
BY OR FOR ACCOUNT OF THE MEMBERS OF SUCH CREWS FOR THE REASONS
AFORESAID, AND TO PAY, SATISFY, OR DISCHARGE ANY AND ALL JUDGMENTS THAT
MAY BE RENDERED THEREIN, TO THE FULL ACQUITTANCE AND DISCHARGE OF
FEDERAL BARGE LINES." 
..END :













BOSTON METALS CO. V. THE WINDING GULF 349 U.S. 122 


NO. 70.  ARGUED MARCH 1, 1955 - DECIDED MAY 16, 1955 - 209 F.2D 410,
REVERSED. 


IN THE CIRCUMSTANCES OF THIS CASE, WHATEVER THE TOWAGE CONTRACT
PROVIDED, THE OWNER OF A TOW WAS NOT LIABLE TO A THIRD PARTY FOR THE
NEGLIGENCE OF EMPLOYEES OF A TOWING COMPANY, WHERE SUCH EMPLOYEES WERE
IN FACT ACTING AS EMPLOYEES OF THE TOWING COMPANY AND NOT AS EMPLOYEES
OF THE OWNER OF THE TOW.  BISSO V. INLAND WATERWAYS CORP., ANTE.  P.
85.  PP.  122-123. 

BOSTON METALS CO. V. THE WINDING GULF ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, BOSTON METALS COMPANY, BROUGHT THIS SUIT IN ADMIRALTY
AGAINST THE STEAM VESSEL WINDING GULF AND HER OWNERS TO RECOVER FOR
LOSS OF ITS OBSOLETE DESTROYER WHICH SANK AFTER COLLIDING WITH THE
WINDING GULF.  THE COLLISION OCCURRED WHILE THE DESTROYER WAS BEING
TOWED BY THE TUG PETER MORAN; THE DESTROYER ITSELF WAS WITHOUT POWER OR
CREW.  THE OWNERS OF THE WINDING GULF FILED A CROSS-LIBEL AGAINST
PETITIONER, CHARGING THAT THE COLLISION WAS DUE TO UNSEAWORTHINESS OF
THE DESTROYER.  AFTER HEARINGS, THE DISTRICT COURT FOUND THAT THE
COLLISION WAS DUE TO NEGLIGENT NAVIGATION BY THE WINDING GULF, TO
INADEQUATE LIGHTS ON THE DESTROYER AND ABSENCE OF A CREW ON THE
DESTROYER TO KEEP ITS LIGHTS BRIGHTLY BURNING.  THIS ABSENCE OF LIGHTS
AND CREW THE DISTRICT COURT FOUND WAS THE FAULT OF THE MASTER OF THE
TUG PETER MORAN.  THE TUG MASTER'S NEGLIGENCE, HOWEVER, WAS IMPUTED TO
THE PETITIONER BECAUSE OF PROVISIONS IN THE TOWAGE CONTRACT THAT THE
MASTER AND CREW OF THE TUG WOULD BECOME THE SERVANTS OF THE PETITIONER
AND THAT THE TOWING COMPANY WOULD NOT BE RESPONSIBLE FOR THEIR
NEGLIGENT TOWAGE.  ON THIS BASIS, THE DISTRICT COURT ENTERED A DECREE
IN FAVOR OF THE CROSS-LIBELLANT AGAINST PETITIONER WHICH RESULTED IN
DIVIDING THE DAMAGES EQUALLY BETWEEN PETITIONER AND RESPONDENTS.  72 F.
SUPP. 50.  THE COURT OF APPEALS AFFIRMED ON THE SAME GROUNDS.  209 F.2D
410.  WE GRANTED CERTIORARI.  348 U.S. 811. 

IN BISSO V. INLAND WATERWAYS CORP., DECIDED TODAY, ANTE, P. 85, WE
HELD INVALID A CONTRACT DESIGNED TO SHIFT RESPONSIBILITY FOR A
TOWBOAT'S NEGLIGENCE FROM THE TOWBOAT TO ITS INNOCENT TOW.  THAT
HOLDING CONTROLS THIS CASE.  FOR WHATEVER THIS CONTRACT SAID, HERE AS
IN THE BISSO CASE, THE PERSONS WHO CONDUCTED THESE TOWING OPERATIONS
WERE IN FACT ACTING AS EMPLOYEES OF THE TOWING COMPANY, NOT AS
EMPLOYEES OF THE OWNER OF THE TOW.  UNDER THESE CIRCUMSTANCES IT WAS
ERROR TO HOLD PETITIONER LIABLE FOR NEGLIGENCE OF THE TOWING COMPANY'S
EMPLOYEES.  CF. THE ADRIATIC, 30 T.L.R. 699.  REVERSED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR OPINION OF MR. JUSTICE DOUGLAS, CONCURRING, SEE ANTE, P. 95. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

RELEASE-FROM-LIABILITY CLAUSES GENERALLY, AND SPECIFICALLY WITH
REGARD TO TOWAGE CONTRACTS, ARE NOT TO BE APPLIED TO ALTER FAMILIAR
RULES VISITING LIABILITY UPON A TORTFEASOR FOR THE CONSEQUENCES OF HIS
NEGLIGENCE, UNLESS THE CLARITY OF THE LANGUAGE USED EXPRESSES SUCH TO
BE THE UNDERSTANDING OF THE CONTRACTING PARTIES.  EVEN WHEN SUCH A
CLAUSE UNDENIABLY ALTERS THE NORMAL RELATIONSHIP BETWEEN TUG AND TOW AS
TO SOME ASPECTS OF LIABILITY FOR NEGLIGENCE, IT IS NOT TO BE CONSTRUED
TO IMPOSE EVERY CONSEQUENCE OF THE TUG'S NEGLIGENCE UPON THE TOW UNLESS
THE CLAUSE DECISIVELY REQUIRES THIS RESULT.  SEE THE DEVONSHIRE AND ST.
WINIFRED, (1913) P. 13; THE RICHMOND, 19 T.L.R. 29 (P.D.). 

THE ISSUE BEFORE US IN THIS CASE IS NOT THE BARE QUESTION WHETHER THE
TOW HAS CONTRACTED AWAY ITS RIGHT TO RECOVER DAMAGES CAUSED BY THE
NEGLIGENCE OF THE TUG.  IT IS WHETHER IN ADDITION THE TOW HAS
UNDERTAKEN TO BECOME DIRECTLY LIABLE TO ALL THIRD PARTIES INJURED AS A
CONSEQUENCE OF THE NEGLIGENCE OF THE TUG. 

THESE ARE THE RELEVANT CLAUSES GOVERNING THE TOWAGE HERE: 

"2.  TUG SERVICES WILL BE SUPPLIED UPON THE CONDITION THAT ALL TOWING
...  OF A VESSEL OR CRAFT OF ANY CHARACTER BY A TUG OR TUGS OWNED OR
EMPLOYED BY THE TUG COMPANY IS DONE AT THE SOLE RISK OF SUCH VESSEL OR
CRAFT AND OF THE OWNERS, CHARTERERS OR OPERATORS THEREOF, AND THAT THE
MASTER AND CREW OF SUCH TUG OR TUGS USED IN THE SAID SERVICES BECOME
THE SERVANTS OF AND IDENTIFIED WITH SUCH VESSEL OR CRAFT AND THEIR
OWNERS, AND THAT THE TUG COMPANY ONLY UNDERTAKES TO PROVIDE MOTIVE
POWER. 

"3.  THE TUG COMPANY WILL NOT BE RESPONSIBLE FOR THE ACTS OR DEFAULTS
OF THE MASTER, OR CREW OF SUCH TUG OR TUGS, OR ANY OF THEIR SERVANTS OR
AGENTS OR ELSE WHOSOEVER, NOR FOR ANY DAMAGES, INJURIES, LOSSES OR
DELAYS FROM WHATSOEVER CAUSE ARISING THAT MAY OCCUR EITHER TO SUCH
VESSEL OR CRAFT, OR PROPERTY OR PERSONS ON BOARD THEREOF, OR TO ANY
OTHER SHIP OR VESSEL OR PROPERTY OF ANY KIND WHETHER FIXED OR MOVABLE
AND THE COMPANY SHALL BE HELD HARMLESS AND INDEMNIFIED BY THE HIRER
AGAINST ALL SUCH DAMAGES, INJURIES, LOSSES AND DELAYS, AND AGAINST ALL
CLAIMS IN RESPECT THEREOF. 

"4.  SUCH EXEMPTION FROM LIABILITY SHALL APPLY REGARDLESS OF WHETHER
SUCH VESSEL OR CRAFT ASSISTS IN THE SERVICES WITH ITS OWN STEAM OR
POWER OR IN ANY OTHER WAY, AND IRRESPECTIVE OF WHETHER ANY EMPLOYEE OF
THE TUG COMPANY OR THE MASTER, OR ANY OF THE CREW OF SUCH TUG OR TUGS
IS AT THE TIME OF SAID SERVICES ON BOARD OF SUCH VESSEL OR CRAFT, OR IN
COMMAND THEREOF. 

"5.  THE FOREGOING CONDITIONS SHALL APPLY TO ANY DAMAGES, INJURIES OR
LOSS FROM WHATSOEVER CAUSE ARISING THAT MAY OCCUR TO THE VESSEL OR
CRAFT REQUIRING THE TUG OR TUGS OR TO ANY OTHER VESSEL OR CRAFT, OR TO
ANY PERSON OR PROPERTY ON BOARD THEREOF, OR TO ANY OTHER PROPERTY
WHETHER FIXED OR MOVABLE, WHILE SUCH TUG OR TUGS IS OR ARE IN
ATTENDANCE UPON  ...  THE VESSEL OR CRAFT  ... PROVIDED HOWEVER THAT
THE SAID CONDITIONS SHALL NOT APPLY TO LOSS OR DAMAGE TO THE TUG OR
TUGS OR TO PROPERTY ON BOARD THE TUG OR TUGS OR TO DAMAGES FOR PERSONAL
INJURIES TO OR LOSS OF LIFE OF MEMBERS OF THE CREWS OF THE TUG OR TUGS
OR PERSONS ON BOARD THEREOF, UNLESS SUCH LOSS OR DAMAGE OR SUCH DAMAGES
FOR PERSONAL INJURIES OR LOSS OF LIFE SHALL HAVE BEEN CAUSED OR
CONTRIBUTED TO BY THE FAULT OR NEGLIGENCE OF THE VESSEL OR CRAFT
REQUIRING THE TUG OR TUGS." 

IS THE SIGNIFICANCE OF THESE CLAUSES TO PERMIT A THIRD PARTY INJURED
BY COLLISION WITH THE TOW DUE TO THE NEGLIGENCE OF THE CREW OF THE TUG,
TO PROCEED DIRECTLY AGAINST THE OWNER OF THE TOW BY VIRTUE OF THIS
CLAUSE? 

THE DISTRICT COURT REFUSED TO ALLOW THE THIRD PARTY TO INVOKE THE
INDEMNITY CLAUSE, BUT APPARENTLY HELD THAT THE CONTRACT MADE THE FAULTS
OF THE TUG ATTRIBUTABLE TO THE TOW, IMPOSING A VICARIOUS LIABILITY UPON
ITS OWNER.  (FN1)  THE COURT OF APPEALS REASONED THAT SINCE THE TOW HAD
AGREED TO INDEMNIFY THE TUG AGAINST CLAIMS OF THIRD PARTIES, THE THIRD
PARTY COULD PROCEED DIRECTLY AGAINST THE TOW BECAUSE "THE LIBEL WAS
FILED BY THE OWNER OF THE TOW WHO HAD AGREED TO TAKE THE RISK OF THE
ENTERPRISE AND PAY ANY DAMAGES THAT MIGHT BE INCURRED, AND AS WAS SAID
BY JUDGE LEARNED HAND IN THE KOOKABURRA, 2 CIR., 69 F.2D 71, 73, 'THE
ADMIRALTY, WHOSE PROCEDURE IS ESPECIALLY PLASTIC, CAN SKIP THE BY-WAYS
AND HEAD DIRECT FOR THE GOAL.'"  209 F.2D 410, 414. 

IN THE ABSENCE OF THE CONTRACTUAL PROVISIONS QUOTED, THE OWNER OF THE
TOW WOULD NOT BE LIABLE TO THE THIRD PARTY.  STURGIS V. BOYER, 24 HOW. 
110; THE EUGENE F. MORAN, 212 U.S. 466, 473.  ON THE OTHER HAND, THE
TOW DID AGREE TO INDEMNIFY THE TUG AGAINST LIABILITY IN THE
CIRCUMSTANCES HERE INVOLVED.  BUT A PROMISE TO INDEMNIFY IS A PROMISE
RUNNING TO THE INDEMNITEE, HERE THE TUG, AND IS NOT ORDINARILY
CONSTRUED AS A CONTRACT FOR THE BENEFIT OF THIRD PARTIES.  NOR DOES AN
AGREEMENT TO HOLD ANOTHER HARMLESS AGAINST CLAIMS OF THIRD PARTIES, IF
IT CONVEYS ANYTHING MORE THAN THE TERM "INDEMNIFY," SUGGEST THAT THE
CONTRACT WAS INTENDED FOR THE BENEFIT OF THIRD PARTIES. 

IT IS TRUE THAT THE CLAUSE STATES THAT THE MEMBERS OF THE CREW ARE TO
"BECOME THE SERVANTS OF AND IDENTIFIED WITH SUCH VESSEL OR CRAFT" AND
THAT THE TUG WILL "NOT BE RESPONSIBLE" FOR THEIR ACTS.  IF IN FACT THIS
WERE THE RELATIONSHIP, THE TOW WOULD BE LIABLE DIRECTLY TO THIRD
PARTIES.  THIS WAS NOT THE FACT, HOWEVER, AND ANY LIABILITY OF THE TOW
TO THE WINDING GULF CAN ONLY BE BASED UPON THE CONTRACTUAL LANGUAGE. 
(FN2)  BUT THE HISTORY OF TOWAGE AND PILOTAGE RELEASE-FROM-NEGLIGENCE
CLAUSES SUGGESTS THAT THIS TERMINOLOGY IS MERELY AN ATTEMPT TO PHRASE A
DISCLAIMER OF LIABILITY APPLICABLE TO A TOWAGE SERVICE IN THE TERMS OF
THE PILOTAGE CLAUSE SUCCESSFULLY INVOKED IN SUN OIL CO. V. DALZELL
TOWING CO., 287 U.S. 291.  LIKE ALL ATTEMPTS TO DESCRIBE DESIRED LEGAL
CONSEQUENCES THROUGH USE OF INAPPOSITE CONCEPTS, THE MOMENTUM OF THE
SYMBOLIC CONCEPT MAY INDUCE CONSEQUENCES BEYOND THOSE WHICH THE TRUE
NATURE OF THE PROBLEM JUSTIFIES.  (FN3)  PLACED IN ITS COMMERCIAL AND
JUDICIAL CONTEXT, THE PHRASEOLOGY DOES NOT SUFFICIENTLY INDICATE AN
AGREEMENT TO UNDERTAKE DIRECT LIABILITY TO THIRD PARTIES.  (FN4)  THERE
ARE GOOD REASONS WHY THIS SHOULD NOT BE UNDERTAKEN, AMONG THEM THE FACT
THAT IN A SUIT TO WHICH THE TUG IS NOT A PARTY IT MAY BE DIFFICULT TO
OBTAIN THE FULL ASSISTANCE OF THE TUG IN ESTABLISHING NON-LIABILITY OR
AVOIDING AN UNFAIRLY LARGER RECOVERY THAN MIGHT HAVE BEEN OR
SUBSEQUENTLY IS HAD AGAINST THE TUG. 

THE ONLY REMAINING QUESTION THEN IS WHETHER THE FACT THAT THE TOW
OWNER INSTITUTED THIS LIBEL AGAINST THE THIRD PARTY SHOULD PERMIT THE
THIRD PARTY TO ASSERT AS A DEFENSE, OR AFFIRMATIVELY AS A CROSS-LIBEL
IN THIS CASE, THE CLAIM AGAINST THE TUG.  THE QUOTATION CITED BY THE
COURT OF APPEALS FROM THE KOOKABURRA IS NOT IN POINT, FOR THERE ALL
PARTIES WERE BEFORE THE COURT, AND THE QUESTION WAS ONE OF
CONTRIBUTION.  IN SUCH A SITUATION CIRCUITY OF ACTION MAY BE AVOIDED
WITHOUT THE DANGER OF INJURY TO ANY OF THE PARTIES.  BUT IT IS NO
DEFENSE TO AN ACTION FOR NEGLIGENCE THAT A CLAIM OVER AGAINST AN ABSENT
THIRD PARTY EXISTS, AND THE SITUATION IS NOT DIFFERENT BECAUSE THE
ABSENT THIRD PARTY IN TURN WOULD, IF HELD LIABLE, BE ENTITLED TO
INDEMNITY FROM THE LIBELLANT. 

FN1  72 F. SUPP. 50.  RESPONDENT CONTENDS THAT IN FACT THE DISTRICT
COURT HELD THAT THE OWNERS OF THE TOW WERE PERSONALLY NEGLIGENT IN
ENTERING INTO THE ARRANGEMENT WITHOUT TAKING STEPS TO INSURE THAT THE
TOWAGE WOULD BE PROPERLY PERFORMED.  THERE ARE SOME PHRASES IN THE
OPINION WHICH TEND TO SUPPORT THIS VIEW, BUT ON THE WHOLE IT IS NOT
CONSISTENT WITH THE COURSE OF REASONING OF THE DISTRICT JUDGE.  IT WAS
NOT THE VIEW TAKEN BY THE COURT OF APPEALS, AND WE WOULD NOT BE
JUSTIFIED IN ADOPTING IT. 

FN2  CF. THE ADRIATIC AND THE WELLINGTON, 30 T.L.R. 699 (P.D.), IN
WHICH THE THIRD PARTY SUED TUG AND TOW, RELYING ON A SIMILAR CLAUSE OF
THE TOWAGE CONTRACT DECLARING THE TUG'S CREW TO BE SERVANTS OF THE
TOW.  THE TOW WAS HELD NOT LIABLE.  IN VIEW OF THE ENGLISH DOCTRINE
REGARDING CONTRACTS FOR THE BENEFIT OF THIRD PARTIES, OUR PROBLEM OF
CONSTRUCTION OF THE CONTRACT DID NOT ARISE. 

FN3  SEE GUY V. DONALD, 203 U.S. 399, 406:  "AS LONG AS THE MATTER TO
BE CONSIDERED IS DEBATED IN ARTIFICIAL TERMS THERE IS DANGER OF BEING
LED BY A TECHNICAL DEFINITION TO APPLY A CERTAIN NAME, AND THEN TO
DEDUCE CONSEQUENCES WHICH HAVE NO RELATION TO THE GROUNDS ON WHICH THE
NAME WAS APPLIED." 

FN4  NOTE THAT THE CLAUSE INVOLVED IN BISSO V. INLAND WATERWAYS
CORP., ANTE, P. 85, SIMILAR TO THE PRESENT ONE IN MOST RESPECTS,
EXPRESSLY STATES THAT IT IS NOT TO BE CONSTRUED TO MAKE THE OWNER OF
THE TOW LIABLE TO THIRD PARTIES. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE REED JOINS, DISSENTING. 

RECOGNIZING THE VALIDITY OF THE AGREEMENT THAT "THE MASTER AND CREW
OF SUCH TUG OR TUGS USED IN THE SAID TOWING SERVICES BECOME THE
SERVANTS OF AND IDENTIFIED WITH SUCH TOWED VESSEL OR CRAFT AND THEIR
OWNERS," I WOULD GIVE THAT AGREEMENT FULL EFFECT.  TO ME, THE AGREEMENT
IS SUFFICIENT TO MAKE THE TOW OWNERS DIRECTLY LIABLE TO THIRD PARTIES
FOR THE ACTS OF THE MASTER AND CREW WHO THUS BECOME THEIR SERVANTS. 
ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :











UNITED STATES, AS OWNER OF THE CHRISTOPHER GALE V. NIELSON, TRADING AS
DAUNTLESS TOWING LINE 349 U.S. 129 


NO. 210.  ARGUED MARCH 1, 1955 - DECIDED MAY 16, 1955 - 209 F.2D 958,
REVERSED. 


A CONTRACT BETWEEN A TUGBOAT COMPANY AND A SHIPOWNER, FOR RENDERING
ASSISTANCE IN MOVING A STEAMSHIP UNDER ITS OWN POWER, PROVIDED THAT A
TUGBOAT CAPTAIN GOING ABOARD THE SHIP TO DIRECT THE MOVING OPERATION
WOULD BECOME THE SERVANT OF THE SHIPOWNER AND THAT THE TUGBOAT COMPANY
WOULD NOT BE "LIABLE FOR ANY DAMAGE" RESULTING THEREFROM.  HELD:  THE
CONTRACT DID NOT AUTHORIZE RECOVERY BY THE TUGBOAT COMPANY FOR DAMAGE
TO ITS OWN TUGBOAT RESULTING FROM NEGLIGENT PILOTAGE BY A TUGBOAT
CAPTAIN WHO HAD GONE ABOARD THE SHIP TO DIRECT THE MOVING OPERATION. 
PP. 129-132. 

UNITED STATES, AS OWNER OF THE CHRISTOPHER GALE, V. NIELSON ET AL.,
TRADING AS DAUNTLESS TOWING LINE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, DAUNTLESS TOWING LINE, CONTRACTED TO USE TWO OF ITS
TUGS IN ASSISTING THE UNITED STATES, PETITIONER HERE, MOVE ITS
STEAMSHIP CHRISTOPHER GALE FROM HOBOKEN TO A BROOKLYN PIER.  THE GALE
WAS TO MOVE UNDER ITS OWN PROPELLING POWER UNDER GUIDANCE OF ONE OF
RESPONDENT'S TUGBOAT CAPTAINS OR SOME OTHER LICENSED PILOT.  THE
CONTRACT FURTHER PROVIDED THAT A TUGBOAT CAPTAIN OR PILOT GOING ON
BOARD WOULD BECOME THE "SERVANT OF THE OWNERS OF THE VESSEL ASSISTED IN
RESPECT TO THE GIVING OF ORDERS TO ANY OF THE TUGS FURNISHED TO OR
ENGAGED IN THE ASSISTING SERVICE AND IN RESPECT TO THE HANDLING OF SUCH
VESSEL, AND NEITHER THOSE FURNISHING THE TUGS AND/OR PILOT NOR THE
TUGS, THEIR OWNERS, AGENTS, OR CHARTERERS SHALL BE LIABLE FOR ANY
DAMAGE RESULTING THEREFROM."  ONE OF THE RESPONDENT'S TUG CAPTAINS WENT
ABOARD THE GOVERNMENT VESSEL TO PILOT IT IN CONNECTION WITH THE MOVING
OPERATION.  THE TWO TUGS OF RESPONDENT WERE AT THE TIME FASTENED TO THE
GALE BY LINES TO HELP GUIDE ITS MOVEMENTS.  ONE OF THE TUGS WAS CRUSHED
BETWEEN THE GALE AND A PIER WHILE ATTEMPTING TO CARRY OUT A MANEUVER
UNDER ORDERS OF THE TUG CAPTAIN PILOTING THE GALE. 

THE RESPONDENT BROUGHT THIS SUIT IN ADMIRALTY TO RECOVER DAMAGES FROM
THE UNITED STATES ALLEGING THAT DAMAGES TO THE TUG WERE CAUSED BY
NEGLIGENT PILOTAGE ORDERS OF THE TUG CAPTAIN WHILE TEMPORARILY ACTING
AS "SERVANT" OF THE GALE.  AFTER HEARINGS THE DISTRICT COURT FOUND THAT
THE DAMAGES WERE CAUSED BY THE PILOT'S NEGLIGENCE "IN PERSISTING IN HIS
ATTEMPT TO ENTER THE SLIP AFTER HE KNEW OR SHOULD HAVE KNOWN THAT HE
COULD NOT OVERCOME THE FORCE OF THE WIND AND TIDE AND KEEP THE
CHRISTOPHER GALE FROM SAGGING DOWN ON PIER 1."  ON THIS FINDING THE
DISTRICT COURT ENTERED A DECREE REQUIRING THE UNITED STATES TO PAY
RESPONDENT FOR DAMAGES BROUGHT ABOUT BY THIS NEGLIGENCE.  THIS DECREE
WAS ENTERED OVER THE GOVERNMENT'S CONTENTION THAT THE CONTRACT WAS
INVALID IF CONSTRUED AS EXEMPTING RESPONDENT FROM LIABILITY FOR ITS OWN
SERVANT'S NEGLIGENCE.  112 F. SUPP. 730.  AGREEING WITH THE DISTRICT
COURT'S REASONING AND DECREE, THE COURT OF APPEALS AFFIRMED.  209 F.2D
958.  WE GRANTED CERTIORARI TO CONSIDER THE MEANING AND VALIDITY OF THE
PILOTAGE CLAUSE, 348 U.S. 811, AND AT THE SAME TIME GRANTED CERTIORARI
IN TWO OTHER CASES, TODAY DECIDED, WHICH INVOLVE VALIDITY OF CONTRACTS
EXEMPTING TOWERS FROM LIABILITY FOR NEGLIGENT TOWAGE.  BISSO V. INLAND
WATERWAYS CORP., ANTE, P. 85; BOSTON METALS CO. V. THE WINDING GULF,
ANTE, P. 122. 

SUN OIL CO. V. DALZELL TOWING CO., 287 U.S. 291, INVOLVED THE MEANING
AND VALIDITY OF A PILOTAGE CONTRACT SUBSTANTIALLY THE SAME AS THE ONE
HERE.  ONE OF DALZELL'S TUG CAPTAINS NEGLIGENTLY PILOTED SUN OIL'S
VESSEL CAUSING THE BOAT TO GROUND AND SUFFER DAMAGES.  SUN OIL SUED
DALZELL.  THE CONTRACT EXEMPTING DALZELL FROM LIABILITY FOR PILOTAGE
WAS PLEADED AS A DEFENSE.  THIS COURT HELD THAT THE TUG COMPANY COULD
VALIDLY CONTRACT AGAINST BEING "LIABLE FOR ANY DAMAGE" CAUSED BY THE
NEGLIGENCE OF ONE OF ITS CAPTAINS IN PILOTING SUN OIL'S VESSEL AND
CONSTRUED THE CONTRACT THERE AS HAVING THAT EFFECT.  THE QUESTION IN
THIS CASE, HOWEVER, IS WHETHER THE AGREEMENT OF THE SHIP BEING PILOTED
TO RELEASE THE TUG COMPANY FROM BEING "LIABLE FOR ANY DAMAGE RESULTING"
FROM NEGLIGENT PILOTAGE NOT ONLY RELIEVES THE TUG COMPANY FROM
LIABILITY FOR DAMAGE, BUT ALLOWS IT AFFIRMATIVELY TO COLLECT DAMAGES
FOR INJURY TO ITS OWN TUG DUE TO NEGLIGENT PILOTAGE BY ONE OF ITS TUG
CAPTAINS. 

AN AGREEMENT THAT ONE SHALL NOT BE LIABLE FOR NEGLIGENCE OF A THIRD
PERSON CANNOT EASILY BE READ AS AN AGREEMENT THAT ONE IS ENTITLED TO
COLLECT DAMAGES FOR NEGLIGENCE OF THAT THIRD PERSON.  AND THERE IS NO
REASON TO STRETCH CONTRACTUAL LANGUAGE TO FORCE PAYMENT OF DAMAGES
UNDER CIRCUMSTANCES LIKE THESE.  A PERSON SUPPLYING HIS OWN EMPLOYEES
FOR USE BY ANOTHER IN A COMMON UNDERTAKING CANNOT USUALLY COLLECT
DAMAGES BECAUSE OF NEGLIGENT WORK BY THE EMPLOYEE SUPPLIED.  CLEAR
CONTRACTUAL LANGUAGE MIGHT JUSTIFY IMPOSITION OF SUCH LIABILITY.  BUT
THE CONTRACTUAL LANGUAGE HERE DOES NOT MEET SUCH A TEST AND WE DO NOT
CONSTRUE IT AS AUTHORIZING RESPONDENT TO RECOVER DAMAGES FROM
PETITIONER.  REVERSED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BURTON, WHOM MR. JUSTICE REED JOINS, DISSENTING. 

THE PILOTAGE CLAUSE AGREED TO BY THE PARTIES HEREIN STATES THAT: 

"WHEN THE CAPTAIN OF ANY TUG FURNISHED TO OR ENGAGED IN THE SERVICE
OF ASSISTING A VESSEL WHICH IS MAKING USE OF HER OWN PROPELLING POWER
GOES ON BOARD SAID VESSEL, OR ANY OTHER LICENSED PILOT GOES ON BOARD
SAID VESSEL, IT IS UNDERSTOOD AND AGREED THAT SAID TUGBOAT CAPTAIN OR
LICENSED PILOT BECOMES THE SERVANT OF THE OWNERS OF THE VESSEL ASSISTED
...  ." 

ACCORDING TO THE ABOVE AGREEMENT, PETITIONER CONTRACTED TO MAKE THE
TUG CAPTAIN, WHILE SERVING IN THIS CAPACITY, ITS SERVANT.  RECOGNIZING
THE VALIDITY OF THIS AGREEMENT, I WOULD GIVE FULL EFFECT TO ITS
EXPRESSED PURPOSE.  ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE
COURT OF APPEALS. 
..END :







IN RE MURCHISON 349 U.S. 133 


NO. 405.  ARGUED APRIL 20, 1955 - DECIDED MAY 16, 1955 - 340 MICH. 140,
65 N.W.2D 296, AND 340 MICH. 151, 65 N.W.2D 301, REVERSED. 


A MICHIGAN STATE JUDGE SERVED AS A "ONE-MAN GRAND JURY" UNDER MICHIGAN
LAW IN INVESTIGATING CRIME.   LATER, THE SAME JUDGE, AFTER A HEARING IN
OPEN COURT, ADJUDGED TWO OF THE WITNESSES GUILTY OF CONTEMPT AND
SENTENCED THEM TO PUNISHMENT FOR EVENTS WHICH TOOK PLACE BEFORE HIM IN
THE GRAND JURY PROCEEDINGS.  HELD:  THEIR TRIAL AND CONVICTION FOR
CONTEMPT BEFORE THE SAME JUDGE VIOLATED THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 133-139. 

THE POWER OF A TRIAL JUDGE TO PUNISH FOR A CONTEMPT COMMITTED IN HIS
IMMEDIATE PRESENCE IN OPEN COURT IS NOT APPLICABLE TO THE CONTEMPT
PROCEEDING HERE.  P. 137. 

IN RE MURCHISON ET AL. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

MICHIGAN LAW AUTHORIZES ANY JUDGE OF ITS COURTS OF RECORD TO ACT AS A
SO-CALLED "ONE-MAN GRAND JURY."  (FN1)  HE CAN COMPEL WITNESSES TO
APPEAR BEFORE HIM IN SECRET TO TESTIFY ABOUT SUSPECTED CRIMES.  WE HAVE
PREVIOUSLY HELD THAT SUCH A MICHIGAN "JUDGE-GRAND JURY" CANNOT
CONSISTENTLY WITH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
SUMMARILY CONVICT A WITNESS OF CONTEMPT FOR CONDUCT IN THE SECRET
HEARINGS.  IN RE OLIVER, 333 U.S. 257.  WE HELD THAT BEFORE SUCH A
CONVICTION COULD STAND, DUE PROCESS REQUIRES AS A MINIMUM THAT AN
ACCUSED BE GIVEN A PUBLIC TRIAL AFTER REASONABLE NOTICE OF THE CHARGES,
HAVE A RIGHT TO EXAMINE WITNESSES AGAINST HIM, CALL WITNESSES ON HIS
OWN BEHALF, AND BE REPRESENTED BY COUNSEL.  THE QUESTION NOW BEFORE US
IS WHETHER A CONTEMPT PROCEEDING CONDUCTED IN ACCORDANCE WITH THESE
STANDARDS COMPLIES WITH THE DUE PROCESS REQUIREMENT OF AN IMPARTIAL
TRIBUNAL WHERE THE SAME JUDGE PRESIDING AT THE CONTEMPT HEARING HAD
ALSO SERVED AS THE "ONE-MAN GRAND JURY" OUT OF WHICH THE CONTEMPT
CHARGES AROSE.  THIS DOES NOT INVOLVE, OF COURSE, THE LONG-EXERCISED
POWER OF COURTS SUMMARILY TO PUNISH CERTAIN CONDUCT OCCURRING IN OPEN
COURT.  (FN2) 

THE PETITIONERS, MURCHISON AND WHITE, WERE CALLED AS WITNESSES BEFORE
A "ONE-MAN JUDGE-GRAND JURY."  MURCHISON, A DETROIT POLICEMAN, WAS
INTERROGATED AT LENGTH IN THE JUDGE'S SECRET HEARINGS WHERE QUESTIONS
WERE ASKED HIM ABOUT SUSPECTED GAMBLING IN DETROIT AND BRIBERY OF
POLICEMEN.  HIS ANSWERS LEFT THE JUDGE PERSUADED THAT HE HAD COMMITTED
PERJURY, PARTICULARLY IN VIEW OF OTHER EVIDENCE BEFORE THE "JUDGE-GRAND
JURY."  THE JUDGE THEN CHARGED MURCHISON WITH PERJURY AND ORDERED HIM
TO APPEAR AND SHOW CAUSE WHY HE SHOULD NOT BE PUNISHED FOR CRIMINAL
CONTEMPT.  (FN3)  WHITE, THE OTHER PETITIONER, WAS ALSO SUMMONED TO
APPEAR AS A WITNESS IN THE SAME "ONE-MAN GRAND JURY" HEARING.   ASKED
NUMEROUS QUESTIONS ABOUT GAMBLING AND BRIBERY, HE REFUSED TO ANSWER ON
THE GROUND THAT HE WAS ENTITLED UNDER MICHIGAN LAW TO HAVE COUNSEL
PRESENT WITH HIM.  THE "JUDGE-GRAND JURY" CHARGED WHITE WITH CONTEMPT
AND ORDERED HIM TO APPEAR AND SHOW CAUSE.  THE JUDGE WHO HAD BEEN THE
"GRAND JURY" THEN TRIED BOTH PETITIONERS IN OPEN COURT, CONVICTED AND
SENTENCED THEM FOR CONTEMPT.  PETITIONERS OBJECTED TO BEING TRIED FOR
CONTEMPT BY THIS PARTICULAR JUDGE FOR A NUMBER OF REASONS INCLUDING:
(1) MICHIGAN LAW EXPRESSLY PROVIDES THAT A JUDGE CONDUCTING A "ONE-MAN
GRAND JURY" INQUIRY WILL BE DISQUALIFIED FROM HEARING OR TRYING ANY
CASE ARISING FROM HIS INQUIRY OR FROM HEARING ANY MOTION TO DISMISS OR
QUASH ANY COMPLAINT OR INDICTMENT GROWING OUT OF IT, OR FROM HEARING
ANY CHARGE OF CONTEMPT "EXCEPT ALLEGED CONTEMPT FOR NEGLECT OR REFUSAL
TO APPEAR IN RESPONSE TO A SUMMONS OR SUBPOENA"; (2) TRIAL BEFORE THE
JUDGE WHO WAS AT THE SAME TIME THE COMPLAINANT, INDICTER AND
PROSECUTOR, CONSTITUTED A DENIAL OF THE FAIR AND IMPARTIAL TRIAL
REQUIRED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES.  THE TRAIL JUDGE ANSWERED THE FIRST
CHALLENGE BY HOLDING THAT THE STATE STATUTE BARRING HIM FROM TRYING THE
CONTEMPT CASES VIOLATED THE MICHIGAN CONSTITUTION ON THE GROUND THAT IT
WOULD DEPRIVE A JUDGE OF INHERENT POWER TO PUNISH CONTEMPT.  THIS
INTERPRETATION OF THE MICHIGAN CONSTITUTION IS BINDING HERE.  AS TO THE
SECOND CHALLENGE THE TRIAL JUDGE HELD THAT DUE PROCESS DID NOT FORBID
HIM TO TRY THE CONTEMPT CHARGES.  HE ALSO REJECTED OTHER CONSTITUTIONAL
CONTENTIONS MADE BY PETITIONERS.  THE STATE SUPREME COURT SUSTAINED ALL
THE TRIAL JUDGE'S HOLDINGS AND AFFIRMED.  (FN4)  IMPORTANCE OF THE
FEDERAL CONSTITUTIONAL QUESTIONS RAISED CAUSED US TO GRANT CERTIORARI. 
(FN5)  THE VIEW WE TAKE MAKES IT UNNECESSARY FOR US TO CONSIDER OR
DECIDE ANY OF THOSE QUESTIONS EXCEPT THE DUE PROCESS CHALLENGE TO TRIAL
BY THE JUDGE WHO HAD CONDUCTED THE SECRET "ONE-MAN GRAND JURY"
PROCEEDINGS.  (FN6) 

A FAIR TRIAL IN A FAIR TRIBUNAL IS A BASIC REQUIREMENT OF DUE
PROCESS.  FAIRNESS OF COURSE REQUIRES AN ABSENCE OF ACTUAL BIAS IN THE
TRIAL OF CASES.  BUT OUR SYSTEM OF LAW HAS ALWAYS ENDEAVORED TO PREVENT
EVEN THE PROBABILITY OF UNFAIRNESS.  TO THIS END NO MAN CAN BE A JUDGE
IN HIS OWN CASE AND NO MAN IS PERMITTED TO TRY CASES WHERE HE HAS AN
INTEREST IN THE OUTCOME.  THAT INTEREST CANNOT BE DEFINED WITH
PRECISION.  CIRCUMSTANCES AND RELATIONSHIPS MUST BE CONSIDERED.  THIS
COURT HAS SAID, HOWEVER, THAT "EVERY PROCEDURE WHICH WOULD OFFER A
POSSIBLE TEMPTATION TO THE AVERAGE MAN AS A JUDGE  ...  NOT TO HOLD THE
BALANCE NICE, CLEAR AND TRUE BETWEEN THE STATE AND THE ACCUSED, DENIES
THE LATTER DUE PROCESS OF LAW."  TUMEY V. OHIO, 273 U.S. 510, 532. 
SUCH A STRINGENT RULE MAY SOMETIMES BAR TRIAL BY JUDGES WHO HAVE NO
ACTUAL BIAS AND WHO WOULD DO THEIR VERY BEST TO WEIGH THE SCALES OF
JUSTICE EQUALLY BETWEEN CONTENDING PARTIES.  BUT TO PERFORM ITS HIGH
FUNCTION IN THE BEST WAY "JUSTICE MUST SATISFY THE APPEARANCE OF
JUSTICE."  OFFUTT V. UNITED STATES, 348 U.S. 11, 14. 

IT WOULD BE VERY STRANGE IF OUR SYSTEM OF LAW PERMITTED A JUDGE TO
ACT AS A GRAND JURY AND THEN TRY THE VERY PERSONS ACCUSED AS A RESULT
OF HIS INVESTIGATIONS.  PERHAPS NO STATE HAS EVER FORCED A DEFENDANT TO
ACCEPT GRAND JURORS AS PROPER TRIAL JURORS TO PASS ON CHARGES GROWING
OUT OF THEIR HEARINGS.  (FN7)  A SINGLE "JUDGE-GRAND JURY" IS EVEN MORE
A PART OF THE ACCUSATORY PROCESS THAN AN ORDINARY LAY GRAND JUROR. 
HAVING BEEN A PART OF THAT PROCESS A JUDGE CANNOT BE, IN THE VERY
NATURE OF THINGS, WHOLLY DISINTERESTED IN THE CONVICTION OR ACQUITTAL
OF THOSE ACCUSED.  WHILE HE WOULD NOT LIKELY HAVE ALL THE ZEAL OF A
PROSECUTOR, IT CAN CERTAINLY NOT BE SAID THAT HE WOULD HAVE NONE OF
THAT ZEAL.  (FN8)  FAIR TRIALS ARE TOO IMPORTANT A PART OF OUR FREE
SOCIETY TO LET PROSECUTING JUDGES BE TRIAL JUDGES OF THE CHARGES THEY
PREFER.  (FN9)  IT IS TRUE THAT CONTEMPT COMMITTED IN A TRIAL COURTROOM
CAN UNDER SOME CIRCUMSTANCES BE PUNISHED SUMMARILY BY THE TRIAL JUDGE. 
SEE COOKE V. UNITED STATES, 267 U.S. 517, 539.  BUT ADJUDICATION BY A
TRIAL JUDGE OF A CONTEMPT COMMITTED IN HIS IMMEDIATE PRESENCE IN OPEN
COURT CANNOT BE LIKENED TO THE PROCEEDINGS HERE.  FOR WE HELD IN THE
OLIVER CASE THAT A PERSON CHARGED WITH CONTEMPT BEFORE A "ONE-MAN GRAND
JURY" COULD NOT BE SUMMARILY TRIED. 

AS A PRACTICAL MATTER IS IS DIFFICULT IF NOT IMPOSSIBLE FOR A JUDGE
TO FREE HIMSELF FROM THE INFLUENCE OF WHAT TOOK PLACE IN HIS "GRAND
JURY" SECRET SESSION.  HIS RECOLLECTION OF THAT IS LIKELY TO WEIGH FAR
MORE HEAVILY WITH HIM THAN ANY TESTIMONY GIVEN IN THE OPEN HEARINGS. 
THAT IT SOMETIMES DOES IS ILLUSTRATED BY AN INCIDENT WHICH OCCURRED IN
WHITE'S CASE.  IN FINDING WHITE GUILTY OF CONTEMPT THE TRIAL JUDGE
SAID, "THERE IS ONE THING THE RECORD DOES NOT SHOW, AND THAT WAS MR.
WHITE'S ATTITUDE, AND I MUST SAY THAT HIS ATTITUDE WAS ALMOST INSOLENT
IN THE MANNER IN WHICH HE ANSWERED QUESTIONS AND HIS ATTITUDE UPON THE
WITNESS STAND  ...  .  NOT ONLY WAS THE PERSONAL ATTITUDE INSOLENT, BUT
IT WAS DEFIANT, AND I WANT TO PUT THAT ON THE RECORD."  IN ANSWER TO
DEFENSE COUNSEL'S MOTION TO STRIKE THESE STATEMENTS BECAUSE THEY WERE
NOT PART OF THE ORIGINAL RECORD THE JUDGE SAID, "THAT IS SOMETHING  ...
THAT WOULDN'T APPEAR ON THE RECORD, BUT IT WOULD BE VERY EVIDENT TO
THE COURT."  THUS THE JUDGE WHOM DUE PROCESS REQUIRES TO BE IMPARTIAL
IN WEIGHING THE EVIDENCE PRESENTED BEFORE HIM, CALLED ON HIS OWN
PERSONAL KNOWLEDGE AND IMPRESSION OF WHAT HAD OCCURRED IN THE GRAND
JURY ROOM AND HIS JUDGMENT WAS BASED IN PART ON THIS IMPRESSION, THE
ACCURACY OF WHICH COULD NOT BE TESTED BY ADEQUATE CROSS-EXAMINATION. 

THIS INCIDENT ALSO SHOWS THAT THE JUDGE WAS DOUBTLESS MORE FAMILIAR
WITH THE FACTS AND CIRCUMSTANCES IN WHICH THE CHARGES WERE ROOTED THAN
WAS ANY OTHER WITNESS.  THERE WERE NO PUBLIC WITNESSES UPON WHOM
PETITIONERS COULD CALL TO GIVE DISINTERESTED TESTIMONY CONCERNING WHAT
TOOK PLACE IN THE SECRET CHAMBERS OF THE JUDGE.  IF THERE HAD BEEN THEY
MIGHT HAVE BEEN ABLE TO REFUTE THE JUDGE'S STATEMENT ABOUT WHITE'S
INSOLENCE.  MOREOVER, AS SHOWN BY THE JUDGE'S STATEMENT HERE, A "JUDGE
GRAND JURY" MIGHT HIMSELF MANY TIMES BE A VERY MATERIAL WITNESS IN A
LATER TRIAL FOR CONTEMPT.  IF THE CHARGE SHOULD BE HEARD BEFORE THAT
JUDGE, THE RESULT WOULD BE EITHER THAT THE DEFENDANT MUST BE DEPRIVED
OF EXAMINING OR CROSS-EXAMINING HIM OR ELSE THERE WOULD BE THE
SPECTACLE OF THE TRIAL JUDGE PRESENTING TESTIMONY UPON WHICH HE MUST
FINALLY PASS IN DETERMINING THE GUILT OR INNOCENCE OF THE DEFENDANT. 
(FN10)  IN EITHER EVENT THE STATE WOULD HAVE THE BENEFIT OF THE JUDGE'S
PERSONAL KNOWLEDGE WHILE THE ACCUSED WOULD BE DENIED AN EFFECTIVE
OPPORTUNITY TO CROSS-EXAMINE.  THE RIGHT OF A DEFENDANT TO EXAMINE AND
CROSS-EXAMINE WITNESSES IS TOO ESSENTIAL TO A FAIR TRIAL TO HAVE THAT
RIGHT JEOPARDIZED IN SUCH WAY. 

WE HOLD THAT IT WAS A VIOLATION OF DUE PROCESS FOR THE "JUDGE-GRAND
JURY" TO TRY THESE PETITIONERS, AND IT WAS THEREFORE ERROR FOR THE
SUPREME COURT OF MICHIGAN TO UPHOLD THE CONVICTIONS.   THE JUDGMENTS
ARE REVERSED AND THE CAUSES ARE REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  MICH. STAT. ANN., 1954, SECS. 28.943, 28.944. 

FN2  SACHER V. UNITED STATES, 343 U.S. 1; COOKE V. UNITED STATES, 267
U.S. 517, 539; EX PARTE SAVIN, 131 U.S. 267.  SEE ALSO IN RE OLIVER,
333 U.S. 257, 273-278. 

FN3  THE CONTEMPT CHARGE SIGNED BY THE JUDGE READS IN PART AS
FOLLOWS: 

"IT THEREFORE APPEARING  ...  THAT THE SAID PAROLMAN LEE ROY
MURCHISON HAS BEEN GUILTY OF WILFULL AND CORRUPT PERJURY, WHICH PERJURY
HAS AN OBSTRUCTIVE EFFECT UPON THE JUDICIAL INQUIRY BEING CONDUCTED BY
THIS COURT AND THE SAID PATROLMAN LEE ROY MURCHISON OBSTRUCTED THE
JUDICIAL FUNCTION OF THE COURT BY WILFULLY GIVING FALSE ANSWERS AS
AFORESAID, AND DID ALSO TEND TO IMPAIR THE RESPECT FOR THE AUTHORITY OF
THE COURT, ALL OF WHICH PERJURY AND FALSE ANSWERS GIVEN BY THE SAID
WITNESS AFORESAID WAS COMMITTED DURING THE SITTING OF, IN THE PRESENCE
AND VIEW OF THIS COURT AND CONSTITUTES CRIMINAL CONTEMPT; 

"IT IS THEREFORE ORDERED THAT THE SAID PATROLMEN LEE ROY MURCHISON
APPEAR BEFORE THIS COURT ON THE TENTH DAY OF MAY, 1954, AT 10:00
O'CLOCK IN THE FORENOON AND SHOW CAUSE WHY HE SHOULD NOT BE PUNISHED
FOR CRIMINAL CONTEMPT OF THIS COURT BECAUSE OF HIS AFORESAID ACTS." 

FN4  IN RE WHITE, 340 MICH. 140, 65 N.W.2D 296; IN RE MURCHISON, 340
MICH. 151, 65 N.W.2D 301. 

FN5  348 U.S. 894. 

FN6  THAT WE LAY ASIDE CERTAIN OTHER FEDERAL CONSTITUTIONAL
CHALLENGES BY PETITIONERS IS NOT TO BE TAKEN AS ANY INTIMATION THAT WE
HAVE PASSED ON THEM ONE WAY OR ANOTHER. 

FN7  SEE, E.G., NOTE, 50 L.R.A. (N.S.)  933, 953-954, 970-971. 

FN8  APPARENTLY THE TRIAL JUDGE HERE DID CONSIDER HIMSELF A PART OF
THE PROSECUTION.  IN PASSING ON A REQUEST BY MURCHISON'S COUNSEL FOR A
TWO-DAY POSTPONEMENT OF THE CONTEMPT TRIAL THE JUDGE SAID, "THERE ARE
TWO POINTS THAT SUGGEST THEMSELVES TO ME. 

"ONE IS THAT IF THE RESPONDENT IS GOING TO CLAIM THAT HE WAS IN
SHREWSBERRY, ONTARIO, CANADA, ON MARCH 9, 1954, THAT WE OUGHT TO BE
FURNISHED WITH INFORMATION SO THAT WE COULD BETWEEN NOW AND TWO DAYS
FROM NOW, WHICH I AM GOING TO GIVE YOU, WE COULD DO SOME CHECKING AND
INVESTIGATING OURSELVES." 

BECAUSE OF THE JUDGE'S DUAL POSITION THE VIEW HE TOOK OF HIS FUNCTION
IS NOT AT ALL SURPRISING. 

FN9 SEE, E.G., QUEEN V. LONDON COUNTY COUNCIL, (1892) 1 Q.B. 190;
WISCONSIN EX REL. GETCHEL V. BRADISH, 95 WIS. 205, 70 N.W. 172. 

FN10  SEE HALE V. WYATT, 78 N.H. 214, 98 A. 379.  SEE ALSO, WITNESSES
- COMPETENCY - COMPETENCY OF A PRESIDING JUDGE AS WITNESS, 28 HARV. L.
REV. 115. 

MR. JUSTICE REED AND MR. JUSTICE MINTON, DISSENTING, WITH WHOM MR.
JUSTICE BURTON JOINS. 

THE COURT HOLDS THAT IT IS UNCONSTITUTIONAL FOR A STATE JUDGE TO
PUNISH A CONTEMPT, PREVIOUSLY COMMITTED BEFORE HIM WHILE ACTING AS A SO
CALLED ONE-MAN GRAND JURY, AFTER A FULL HEARING IN OPEN COURT.  IT
HOLDS THAT WHITE, IN BEING SO PUNISHED FOR HIS BLANKET REFUSAL TO
ANSWER ANY QUESTIONS BEFORE THE GRAND JURY, AND MURCHISON, IN BEING SO
PUNISHED FOR PERJURY BEFORE THE SAME BODY, WERE DEPRIVED OF THEIR
LIBERTY WITHOUT DUE PROCESS OF LAW. 

THIS CONCLUSION IS NOT RESTED ON ANY IRREGULARITY IN THE PROCEEDINGS
BEFORE EITHER THE GRAND JURY OR THE COURT.  UNDER MICHIGAN PROCEDURE A
SINGLE STATE JUDGE MAKES THE GRAND JURY INVESTIGATION, NOT IN SECRET,
BUT WITH OTHER PUBLIC OFFICIALS TO AID HIM, AND A TRANSCRIPT IS MADE OF
THE TESTIMONY.  THERE IS CERTAINLY NOTHING UNCONSTITUTIONAL ABOUT
THIS.  A STATE MAY REDUCE THE CUSTOMARY NUMBER OF GRAND JURORS TO ONE,
AND IMPART THE INVESTIGATORY DUTY TO A MEMBER OF ITS JUDICIARY IF IT SO
DESIRES.  FURTHER, THE ACCUSED IS AFFORDED A FULL HEARING IN OPEN
COURT, WITH A STATEMENT OF CHARGES, BENEFIT OF COUNSEL, AND A FULL
OPPORTUNITY TO EXPLAIN HIS CONDUCT BEFORE THE GRAND JURY, BEFORE BEING
HELD IN CONTEMPT.  THUS ALL THE REQUIREMENTS SET DOWN IN IN RE OLIVER,
333 U.S. 257, ARE MET.    THE COURT'S DETERMINATION IS RESTED ON THE
SOLE FACT THAT THE SAME JUDGE FIRST CITED PETITIONERS FOR CONTEMPT
COMMITTED IN HIS PRESENCE, AND THEN PRESIDED OVER THE PROCEEDINGS
LEADING TO THE FINAL ADJUDICATION.  IT IS NEITHER SHOWN NOR ALLEGED
THAT THE STATE JUDGE WAS IN ANY WAY BIASED.  NOR IS THIS REQUIRED BY
THE COURT, FOR IT HOLDS, AS A MATTER OF LAW, THAT THE JUDGE'S
"INTEREST" IN A CONVICTION MAKES THE PROCEEDINGS INHERENTLY PREJUDICIAL
AND THUS CONSTITUTIONALLY INVALID.  THE FACT THAT THE "INTEREST" OF THE
STATE JUDGE IN THIS PROCEDURE IS NO DIFFERENT FROM THAT OF OTHER JUDGES
WHO HAVE TRADITIONALLY PUNISHED FOR CONTEMPT LEADS US TO DISSENT. 

IN SACHER V. UNITED STATES, 343 U.S. 1, WE UPHELD THE POWER OF A
FEDERAL DISTRICT JUDGE TO SUMMARILY PUNISH A CONTEMPT PREVIOUSLY
COMMITTED IN HIS PRESENCE.  IN THAT CASE, AFTER A TRIAL WHICH HAD
EXTENDED FOR SOME NINE MONTHS, THE TRIAL JUDGE ISSUED A CERTIFICATE
SUMMARILY HOLDING DEFENSE COUNSEL IN CONTEMPT FOR THEIR ACTIONS DURING
THE TRIAL.  THERE WERE NO FORMALITIES, NO HEARINGS, NO TAKING OF
EVIDENCE, NO ARGUMENTS AND NO BRIEFS.  WE HELD THAT SUCH A PROCEDURE
WAS PERMITTED BY RULE 42 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
WHICH CODIFIED THE "PREVAILING USAGES AT LAW."  THE COURT SPECIFICALLY
REJECTED THE CONTENTION THAT THE JUDGE WHO HEARD THE CONTEMPT WAS
DISQUALIFIED FROM PUNISHING IT AND SHOULD BE REQUIRED TO ASSUME THE
ROLE OF ACCUSER OR COMPLAINING WITNESS BEFORE ANOTHER JUDGE.  IN OFFUTT
V. UNITED STATES, 348 U.S. 11, THE COURT SIMPLY STATED AN EXCEPTION:
WHEN THE TRIAL JUDGE BECOMES PERSONALLY EMBROILED WITH THE CONTEMNOR,
HE MUST STEP ASIDE IN FAVOR OF ANOTHER JUDGE.  THAT DECISION WAS RESTED
UPON OUR SUPERVISORY AUTHORITY OVER THE ADMINISTRATION OF CRIMINAL
JUSTICE IN THE FEDERAL COURTS.  THE COURT NOW HOLDS, EVEN THOUGH THERE
IS NO SHOWING OR CONTENTION THAT THE STATE JUDGE BECAME EMBROILED OR
PERSONALLY EXERCISED, OR WAS IN ANY WAY BIASED, THAT AS A MATTER OF
CONSTITUTIONAL LAW - OF PROCEDURAL DUE PROCESS - A STATE JUDGE MAY NOT
PUNISH A CONTEMPT PREVIOUSLY COMMITTED IN HIS PRESENCE.  THIS SEEMS
INCONSISTENT WITH ALL THAT HAS GONE BEFORE. 

THE COURT, PRESUMABLY REFERRING TO THE SITUATION IN THE FEDERAL
COURTS, STATES THAT THE "ADJUDICATION BY A TRIAL JUDGE OF A CONTEMPT
COMMITTED IN HIS IMMEDIATE PRESENCE IN OPEN COURT CANNOT BE LIKENED TO
THE PROCEEDINGS HERE."  THE REASON THAT IT CANNOT, WE ARE TOLD, IS
BECAUSE "WE HELD IN THE OLIVER CASE THAT A PERSON CHARGED WITH CONTEMPT
BEFORE A 'ONE-MAN GRAND JURY' COULD NOT BE SUMMARILY TRIED."  THIS IS
HARDLY EXPLANATORY, FOR THE QUESTION OF WHETHER THE HEARING IS TO BE
SUMMARY OR PLENARY HAS NO BEARING ON THE ATTITUDE OR "INTEREST" OF THE
JUDGES IN THE TWO SITUATIONS, WHICH IS INDISTINGUISHABLE.  THE SIMPLE
FACT IS THAT IN THE FEDERAL COURTS WE ALLOW THE SAME JUDGE WHO HEARS
THE CONTEMPT AND ISSUES THE CERTIFICATE TO PUNISH IT SUBSEQUENTLY AND
SUMMARILY, BUT IN THIS CASE WE DO NOT ALLOW SUCH PUNISHMENT EVEN AFTER
A FULL COURT TRIAL.  THE ONLY FACTUAL DIFFERENCE BETWEEN SACHER AND
THIS CASE IS THAT THE CONTEMPT IN SACHER WAS COMMITTED AT A PUBLIC
TRIAL.  WHEN THE CONTEMPT IS NOT COMMITTED IN OPEN COURT, WE REQUIRE
THAT THE CRIMINAL CONVICTION BE IN PUBLIC AND THAT THE INDIVIDUAL BE
GIVEN A FULL HEARING, WITH AN OPPORTUNITY TO DEFEND HIMSELF AGAINST THE
CHARGES PROFFERED AND TO MAKE A RECORD FROM WHICH TO APPEAL.  IN RE
OLIVER, 333 U.S. 257.  PETITIONERS HAD ALL THIS.  THEY ARE NOT ENTITLED
TO MORE. 

WE DO NOT SEE HOW IT CAN BE HELD THAT IT VIOLATES FUNDAMENTAL
CONCEPTS OF FAIR PLAY AND JUSTICE FOR A STATE JUDGE AFTER A FULL COURT
TRIAL TO PUNISH A CONTEMPT PREVIOUSLY OBSERVED WHEN ACTING AS A GRAND
JURY, WHEN IT HAS BEEN HELD THAT IT IS PERFECTLY PROPER FOR A FEDERAL
JUDGE TO SUMMARILY PUNISH A CONTEMPT PREVIOUSLY OBSERVED IN OPEN
COURT.  IT SEEMS TO US THAT THE COURT HAS IMPOSED A MORE STRINGENT
REQUIREMENT ON STATE JUDGES AS A MATTER OF DUE PROCESS THAN WE HAVE
IMPOSED ON FEDERAL JUDGES OVER WHOM WE EXERCISE SUPERVISORY POWER. 

THE COURT RELIES HEAVILY ON TUMEY V. OHIO, 273 U.S. 510.  THERE WE
HELD THAT IT DEPRIVES A DEFENDANT OF DUE PROCESS TO "SUBJECT HIS
LIBERTY OR PROPERTY TO THE JUDGMENT OF A COURT THE JUDGE OF WHICH HAS A
DIRECT, PERSONAL, SUBSTANTIAL, PECUNIARY INTEREST IN REACHING A
CONCLUSION AGAINST HIM IN HIS CASE."  ID., AT 523.  IT IS ONE THING TO
HOLD THAT A JUDGE HAS TOO GREAT AN INTEREST IN A CASE TO PERMIT THE
RENDITION OF A FAIR VERDICT WHEN HIS COMPENSATION IS DETERMINED BY THE
RESULT HE REACHES.  IT IS QUITE ANOTHER THING TO DISQUALIFY A STATE
JUDGE AS HAVING TOO GREAT AN INTEREST TO RENDER A DUE PROCESS JUDGMENT
WHEN HIS SOLE INTEREST, AS SHOWN BY THIS RECORD, IS THE MAINTENANCE OF
ORDER AND DECORUM IN THE INVESTIGATION OF CRIME - AN INTEREST WHICH HE
SHARES IN COMMON WITH ALL JUDGES WHO PUNISH FOR CONTEMPT. 

THE STATE OF MICHIGAN HAS DECIDED THAT IN THE ADMINISTRATION OF ITS
CRIMINAL LAW IT IS WISE TO HAVE THE INVESTIGATING POWER IN THE HANDS OF
A JUDGE.  IT HAS ALSO DECIDED THAT THE JUDGE WHO OBSERVES THE CONTEMPT
IS TO PRESIDE AT THE TRIAL OF THE CONTEMNOR.  IT DOES NOT SEEM THAT
THERE IS HERE SUCH A VIOLATION OF ACCEPTED JUDICIAL STANDARDS AS TO
JUSTIFY THIS COURT'S DETERMINATION OF UNCONSTITUTIONALITY. 

WE WOULD AFFIRM. 
..END :









SOCIETY FOR SAVINGS IN THE CITY OF CLEVELAND V. BOWERS 349 U.S. 143 


NO. 204.  ARGUED MARCH 28, 1955 - DECIDED MAY 16, 1955 - 161 OHIO ST.
122, 118 N.E.2D 651, AND 161 OHIO ST. 149, 118 N.E.2D 667, REVERSED. 


OHIO ASSESSED A PROPERTY TAX AGAINST A MUTUAL SAVINGS BANK AND A
FEDERAL SAVINGS AND LOAN ASSOCIATION IN THEIR OWN NAMES.  THE TAX WAS
MEASURED BY THE AMOUNT OF EACH BANK'S CAPITAL, SURPLUS OR RESERVE AND
UNDIVIDED PROFITS, WITHOUT DEDUCTION OF THE VALUE OF OBLIGATIONS OF THE
FEDERAL GOVERNMENT OWNED BY IT.  NEITHER BANK HAD ANY CAPITAL STOCK OR
SHAREHOLDERS, EACH WAS OWNED BY ITS DEPOSITORS, AND THERE WAS NO
PROVISION FOR REIMBURSEMENT OF THE BANK BY ITS DEPOSITORS FOR THE TAX. 
HELD:  THE TAX IS VOID AS A TAX UPON OBLIGATIONS OF THE FEDERAL
GOVERNMENT.  PP. 144-155. 

(A)  IN DETERMINING THE VALIDITY OF THE TAX UNDER FEDERAL LAW, THIS
COURT IS NOT BOUND BY THE CONCLUSION OF THE SUPREME COURT OF OHIO THAT
THE TAX IS IMPOSED ON THE DEPOSITORS, RATHER THAN ON THE BANKS.  P.
151. 

(B)  IN THE CIRCUMSTANCES OF THIS CASE, THE TAX MUST BE REGARDED FOR
FEDERAL PURPOSES AS ONE IMPOSED ON THE BANKS, RATHER THAN ON THE
DEPOSITORS.  PP. 151-154. 

(C)  WITHOUT PROVISIONS PROTECTING THE BANKS AGAINST THE BURDENS OF
THE TAX, IT CANNOT BE ASSUMED THAT THE OPERATION OF THE TAX STATUTE
WILL NOT INFRINGE ON THE IMMUNITY OF THE FEDERAL OBLIGATIONS HELD BY
THEM.  P. 154. 

SOCIETY FOR SAVINGS IN THE CITY OF CLEVELAND V. BOWERS, TAX COMMISSIONER
OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO.* 

*TOGETHER WITH NO. 220, FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF
WARREN V. BOWERS, TAX COMMISSIONER OF OHIO, ON APPEAL FROM THE SAME
COURT. 

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. 

IN 1829 THIS COURT DECIDED IN WESTON V. CITY COUNCIL OF CHARLESTON, 2
PET. 449, THAT OBLIGATIONS OF THE FEDERAL GOVERNMENT ARE IMMUNE FROM
STATE TAXATION.  THIS RULE, AIMED AT PROTECTING THE BORROWING POWER OF
THE UNITED STATES FROM STATE ENCROACHMENT, WAS DERIVED FROM THE
"BORROWING" AND "SUPREMACY" CLAUSES OF THE CONSTITUTION, (FN1) AND THE
CONSTITUTIONAL DOCTRINES ANNOUNCED IN MCCULLOCH V. MARYLAND, 4 WHEAT. 
316 (1819).  IT WAS SUBSEQUENTLY EMBODIED IN A SUCCESSION OF FEDERAL
STATUTES, THE EXISTING STATUTE BEING R.S. SEC. 3701, 31 U.S.C. SEC.
742.  (FN2)  THE RULE HAS BEEN CARRIED FORWARD TO EMBRACE INDIRECT
TAXATION OF SUCH OBLIGATIONS THROUGH THEIR INCLUSION IN A TAX IMPOSED
ON ALL THE PROPERTY OF A TAXPAYER.  IT IS QUITE IMMATERIAL THAT THE
STATE TAX DOES NOT DISCRIMINATE AGAINST THE FEDERAL OBLIGATIONS.  NEW
YORK EX REL. BANK OF COMMERCE V. COMMISSIONERS OF TAXES, 2 BLACK 620
(1863); BANK TAX CASE, 2 WALL.  200 (1865); FARMERS & MECHANICS SAVINGS
BANK V. MINNESOTA, 232 U.S. 516 (1914); NEW JERSEY REALTY TITLE INS.
CO. V. DIVISION OF TAX APPEALS, 338 U.S. 665 (1950). 

THE TWO CASES NOW BEFORE US INVOLVE THE APPLICATION OF THAT RULE, IN
A SOMEWHAT NOVEL SITUATION.  SOCIETY FOR SAVINGS IN THE CITY OF
CLEVELAND AND FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF WARREN,
(FN3) TWO MUTUAL SAVINGS BANKS HAVING NO CAPITAL STOCK OR SHAREHOLDERS,
AND LOCATED IN OHIO, ATTACK THE VALIDITY OF AN OHIO PORPERTY TAX, AS
ASSESSED AGAINST THEM, ON THE GROUND THAT THEY WERE REQUIRED TO INCLUDE
IN THE PROPERTY VALUES UPON WHICH THE TAX WAS COMPUTED UNITED STATES
BONDS HELD IN THEIR SECURITY PORTFOLIOS.  HAD THESE BONDS BEEN
EXCLUDED, THE ENTIRE TAX WOULD HAVE BEEN WIPED OUT IN BOTH INSTANCES. 
(FN4)  THE OHIO TAX COMMISSIONER THOUGHT THESE GOVERNMENT BONDS WERE
NOT EXCLUDIBLE.  THE OHIO BOARD OF TAX APPEALS REVERSED.  THE SUPREME
COURT OF OHIO SUSTAINED THE COMMISSIONER IN EACH INSTANCE.  THE TWO
BANKS ARE HERE BY APPEAL FROM THE JUDGMENT OF THE OHIO SUPREME COURT IN
EACH CASE.  (FN5)  THE CASES WERE ARGUED TOGETHER, AND ARE SO TREATED
IN THIS OPINION. 

THE TAX IN QUESTION WAS ASSESSED IN THE NAMES OF THESE BANKS UNDER
SECS. 5408, 5412 AND 5638-1 OF THE OHIO GENERAL CODE, (FN6) UPON THE
BOOK VALUE OF THEIR "CAPITAL EMPLOYED, OR THE PROPERTY REPRESENTING IT"
(SEC. 5408) "AT THE AGGREGATE AMOUNT OF THE CAPITAL, THE SURPLUS OR
RESERVE FUND AND THE UNDIVIDED PROFITS" (SEC. 5412).  THE TAX WAS AT
THE RATE OF TWO MILLS ON THE DOLLAR (SEC. 5638-1).  NO CLAIM IS MADE
THAT THE TAXES CONSTITUTED A FRANCHISE TAX OR SOME OTHER KIND OF
PRIVILEGE TAX.  CF. EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379
(1931). 

THE SUPREME COURT OF OHIO RECOGNIZED THAT THIS TAX, BASED AS IT WAS
UPON THE INCLUSION OF FEDERAL OBLIGATIONS, WOULD HAVE TO FALL IF
DIRECTED AGAINST THE BANKS.  NEW YORK EX REL. BANK OF COMMERCE V.
COMMISSIONERS OF TAXES, SUPRA; BANK TAX CASE, SUPRA.  THIS TAX, THOUGH,
WAS NOT CONSIDERED TO BE AGAINST THE BANKS.  HOLDING THAT THE
DEPOSITORS OF A MUTUAL SAVINGS BANK HAVE AN INTEREST SIMILAR TO THAT OF
SHAREHOLDERS OF OTHER BANKS, THE OHIO COURT FOUND INSTEAD THAT THE TAX
WAS IMPOSED UPON THE "INTANGIBLE PROPERTY INTERESTS" OF THE DEPOSITORS
AS THE OWNERS OF EACH BANK.  THE BANKS' CAPITAL, SURPLUS FUND AND
UNDIVIDED PROFITS, WHICH WE WILL REFER TO AS THEIR SURPLUS, WERE
REGARDED AS NOT THEMSELVES THE SUBJECT MATTER OF THE TAX, BUT AS SIMPLY
THE MEASURE OF THE TAX AGAINST THE DEPOSITORS, AND THE BANKS WERE
TREATED AS TAX-COLLECTING AGENTS RATHER THAN AS TAXPAYERS. 

IN SO DECIDING THE OHIO COURT RELIED UPON A GLOSS ON THE RULE OF
IMMUNITY STATED ABOVE.  IT HAS BEEN HELD THAT A STATE MAY IMPOSE A TAX
UPON THE STOCKHOLDERS' INTERESTS IN A CORPORATION, MEASURED BY
CORPORATE ASSET VALUES, WITHOUT MAKING ANY DEDUCTION ON ACCOUNT OF
UNITED STATES SECURITIES HELD BY THE CORPORATION.  THIS DOCTRINE HAD
ITS ORIGIN IN CASES INVOLVING NATIONAL BANK STOCK.  THERE,
CONGRESSIONAL CONSENT TO STATE TAXATION OF THE STOCK OF NATIONAL BANKS,
UPON CERTAIN CONDITIONS, WAS HELD, OVER STRONG DISSENT, TO PERMIT SUCH
TAXES TO BE ASSESSED WITHOUT THE EXCLUSION OF FEDERAL OBLIGATIONS OWNED
BY THE BANKS.  VAN ALLEN V. ASSESSORS, 3 WALL.  573 (1866); NATIONAL
BANK V. COMMONWEALTH, 9 WALL.  353 (1870); DES MOINES NATIONAL BANK V.
FAIRWEATHER, 263 U.S. 103 (1923).  THIS RESULT WAS REACHED IN PART ON
THE THEORY THAT THE STOCKHOLDERS' INTERESTS IN A CORPORATION REPRESENT
A SEPARATE PROPERTY INTEREST FROM THE CORPORATION'S OWNERSHIP OF ITS
ASSETS, SO THAT A TAX ON THE STOCKHOLDERS' INTERESTS IS NOT A TAX ON
THE FEDERAL OBLIGATIONS WHICH ARE INCLUDED IN THE CORPORATE PROPERTY. 
THIS RATIONALE HAS BEEN CARRIED OVER TO CASES INVOLVING STOCK OF STATE
CREATED BANKS, AND THUS A TAX ON THEIR SHAREHOLDERS, THOUGH MEASURED BY
CORPORATE ASSETS WHICH INCLUDE FEDERAL OBLIGATIONS, IS HELD NOT TO
OFFEND THE RULE IMMUNIZING SUCH OBLIGATIONS FROM STATE TAXATION. 
CLEVELAND TRUST CO. V. LANDER, 184 U.S. 111 (1902).  FURTHER, IN
LEVYING A TAX ON SHAREHOLDERS, A STATE MAY REQUIRE ITS PAYMENT BY THE
CORPORATION, AS A COLLECTING AGENT.  CORRY V. BALTIMORE, 196 U.S. 466
(1905).  THE RESULT IS THAT WHEN, AS IS USUALLY THE CASE, THE
SHAREHOLDER TAX IS MEASURED SOLELY BY CORPORATE ASSET VALUES, SUCH A
TAX IS DIFFICULT TO DISTINGUISH FROM A TAX IMPOSED UPON THE CORPORATION
ITSELF, SO FAR AS THE PRACTICAL IMPACT OF THE TWO TYPES OF TAXES UPON
CORPORATE-OWNED FEDERAL OBLIGATIONS IS CONCERNED.  NEVERTHELESS, THIS
EXCEPTION TO THE GENERAL RULE OF IMMUNITY IS FIRMLY EMBEDDED IN THE
LAW. 

THE FOCAL POINT OF THESE APPEALS IS THUS WHETHER WE ARE TO REGARD
THIS TAX AS IMPOSED ON THE BANKS OR, AS THE OHIO COURT HELD THE
LEGISLATURE INTENDED, ON THEIR DEPOSITORS.  WERE WE FREE TO CONSTRUE
OHIO'S STATUTE DE NOVO WE MIGHT HAVE DIFFICULTY IN REACHING THE
CONCLUSION WHICH THE OHIO COURT DID.   SUFFICE IT TO SAY AT THIS POINT:
THE STATUTE IS BARREN OF ANY LANGUAGE EXPRESSLY IMPOSING THIS TAX ON
THE DEPOSITORS, AND CONTAINS NO PROVISION GIVING THE BANK ANY RIGHT TO
RECOVER THE TAX FROM THE DEPOSITORS, AS MIGHT BE EXPECTED IF THE BANK
HAD BEEN REGARDED AS A MERE TAX-COLLECTING AGENT.  BY CONTRAST, THE
TAXES LAID BY THE OHIO GENERAL CODE ON (A) THE SHARES OF INCORPORATED
FINANCIAL INSTITUTIONS WHOSE CAPITAL IS DIVIDED INTO SHARES, (B) THE
SHARES OF UNINCORPORATED INSTITUTIONS WHOSE CAPITAL IS DIVIDED INTO
SHARES, AND (C) DEPOSITS, ARE IMPOSED ON THE SHARES "OF THE
STOCKHOLDERS" (SEC. 5408) AND ON THE DEPOSITS "AS TAXABLE PROPERTY OF
ITS DEPOSITORS" (SEC. 5673-2).   (FN7)  IN THE CASE OF THOSE TAXES, NOT
HERE INVOLVED, THE BANK IS GIVEN FULL RIGHTS OF REIMBURSEMENT FROM THE
STOCKHOLDERS OR DEPOSITORS, AS THE CASE MAY BE, AND IT IS CLEAR THAT
THE INSTITUTION IN PAYING SUCH TAXES IS ACTING ONLY AS A COLLECTION
AGENT.  OHIO GEN. CODE SECS. 5672, 5673, 5673-1, 5673-2.  (FN8) 

AND BEYOND THESE CONSIDERATIONS, ONE MIGHT NOT HAVE EXPECTED THE
LEGISLATURE TO TAX THE OWNERSHIP INTERESTS OF THE DEPOSITORS OF THESE
BANKS ON THE SAME BASIS AS STOCKHOLDERS ARE TAXED.  THE ASSERTED
INTEREST OF THE DEPOSITORS IS IN THE SURPLUS OF THE BANK, WHICH IS
PRIMARILY A RESERVE AGAINST LOSSES AND SECONDARILY A REPOSITORY OF
UNDIVIDED EARNINGS.  SO LONG AS THE BANK REMAINS SOLVENT, DEPOSITORS
RECEIVE A RETURN ON THIS FUND ONLY AS AN ELEMENT OF THE INTEREST PAID
ON THEIR DEPOSITS.  TO MAINTAIN THEIR INTANGIBLE OWNERSHIP INTEREST,
THEY MUST MAINTAIN THEIR DEPOSITS.  IF A DEPOSITOR WITHDRAWS FROM THE
BANK, HE RECEIVES ONLY HIS DEPOSITS AND INTEREST.  IF HE CONTINUES, HIS
ONLY CHANCE OF GETTING ANYTHING MORE WOULD BE IN THE UNLIKELY EVENT OF
A SOLVENT LIQUIDATION, A POSSIBILITY THAT HARDLY RISES TO THE LEVEL OF
AN EXPECTANCY.  IT STRETCHES THE IMAGINATION VERY FAR TO ATTRIBUTE ANY
REAL VALUE TO SUCH A REMOTE CONTINGENCY, AND WHEN COUPLED WITH THE FACT
THAT IT REPRESENTS NOTHING WHICH THE DEPOSITOR CAN READILY TRANSFER,
ANY THEORETICAL VALUE REDUCES ALMOST TO THE VANISHING POINT.  CF.
COLLETT V. SPRINGFIELD SAVINGS SOCIETY, 13 OHIO CIR. CT. REPTS.  131,
AFF'D 56 OHIO ST. 776, 49 N.E. 1109 (1897). 

THE OHIO COURT, HOWEVER, HAS HELD THAT THIS TAX IS IMPOSED ON THE
DEPOSITORS.  (FN9)  BUT THAT DOES NOT END THE MATTER FOR US.  WE MUST
JUDGE THE TRUE NATURE OF THIS TAX IN TERMS OF THE RIGHTS AND
LIABILITIES WHICH THE STATUTE, AS CONSTRUED, CREATES.  IN ASSESSING THE
VALIDITY OF THE TAX UNDER FEDERAL LAW, WE ARE NOT BOUND BY THE STATE'S
CONCLUSION THAT THE TAX IS IMPOSED ON THE DEPOSITORS, EVEN THOUGH WE
WOULD BE BOUND BY THE STATE COURT'S DECISION AS TO WHAT RIGHTS AND
LIABILITIES THIS STATUTE ESTABLISHES UNDER STATE LAW.  THE COURT'S MERE
CONCLUSION THAT THE TAX IS IMPOSED ON THE DEPOSITORS IS NO MORE THAN A
CHARACTERIZATION OF THE TAX.  "WHERE A FEDERAL RIGHT IS CONCERNED WE
ARE NOT BOUND BY THE CHARACTERIZATION GIVEN TO A STATE TAX BY STATE
COURTS OR LEGISLATURES, OR RELIEVED BY IT FROM THE DUTY OF CONSIDERING
THE REAL NATURE OF THE TAX AND ITS EFFECT UPON THE FEDERAL RIGHT
ASSERTED."  CARPENTER V. SHAW, 280 U.S. 363, 367 (1930).  SEE ALSO NEW
JERSEY REALTY TITLE INS. CO. V. DIVISION OF TAX APPEALS, SUPRA, AT 674;
EDUCATIONAL FILMS CORP. V. WARD, SUPRA, AT 387.  "NEITHER INGENUITY IN
CALCULATION NOR FORM OF WORDS IN STATE ENACTMENTS CAN DEPRIVE THE OWNER
OF THE TAX EXEMPTION ESTABLISHED FOR THE BENEFIT OF THE UNITED
STATES."  MISSOURI EX REL. MISSOURI INS. CO. V. GEHNER, 281 U.S. 313,
321 (1930).  THEREFORE, WE PROCEED TO EXAMINE WHAT RIGHTS AND
LIABILITIES THE STATUTE CREATES. 

WE NOTE, FIRST, THAT SHOULD THE BANK BE UNABLE TO PAY THE TAX, AFTER
IT HAS BEEN ASSESSED, THERE IS NO PROVISION ENTITLING THE STATE OF OHIO
TO COLLECT IT FROM THE DEPOSITORS.  A TAX AGAINST THE DEPOSITORS WHICH
IS RECOVERABLE ONLY FROM THE BANK LOOKS LIKE A TAX AGAINST THE BANK. 
AND IF THE TAX IS IN FACT AGAINST THE BANK, IT DOES NOT MATTER WHETHER
THE ULTIMATE ECONOMIC IMPACT IS PASSED ON TO THE DEPOSITORS.  HOME
SAVINGS BANK V. DES MOINES, 205 U.S. 503, 519 (1907). 

NEXT, IT APPEARS THAT THE STATUTE DOES NOT RELIEVE THE BANK FROM
HAVING TO PAY THE TAX ON THE "INTANGIBLE PROPERTY INTEREST" OF A
DEPOSITOR WHO HAD AN ACCOUNT WITH THE BANK ON THE ASSESSMENT DATE OF
THE TAX, BUT HAS WITHDRAWN HIS ACCOUNT BEFORE THE COLLECTION DATE.  AND
IF THE BANK IS REQUIRED TO PAY ON THE FORMER DEPOSITOR'S ACCOUNT, THERE
IS NO PROVISION ENTITLING THE BANK TO REIMBURSEMENT FROM HIM.  IT
SHOULD BE OBSERVED THAT IN THE CASE OF THE DEPOSIT TAX THE STATUTE DOES
CONTAIN PROVISIONS PROTECTING THE BANK IN SUCH A SITUATION.  SECS.
5412, 5673-1, 5673-2.  (FN10) 

FINALLY, AND PERHAPS MOST IMPORTANT, IF THIS TAX IS ON THE
DEPOSITORS, WE MUST FIND SOMEWHERE A RIGHT IN THE BANK TO MAKE ITSELF
WHOLE FROM THE DEPOSITORS FOR THE TAXES PAID ON THEIR ACCOUNT.  IN ALL
THE CASES UPHOLDING STATE TAXES AGAINST SHAREHOLDERS, WITHOUT THE
EXCLUSION OF FEDERAL OBLIGATIONS OWNED BY THE CORPORATION, AN EXPRESS
OR IMPLIED RIGHT OF REIMBURSEMENT WAS PRESUPPOSED.  SEE VAN ALLEN AND
OTHER CASES AT P. 147, SUPRA.  AS ALREADY OBSERVED, IN THE CASE OF THE
OHIO TAXES ON SHARES AND DEPOSITS THE STATUTE CONTAINS SUCH A RIGHT
(SECS. 5673, 5673-2).  (FN11)  IN THE PRESENT CASES WE CAN FIND NO SUCH
RIGHT.  IT MAY BE TRUE THAT WHERE THE TAX PAID BY THE BANK IS LESS THAN
THE INTEREST WHICH THE BANK CONTEMPLATES PAYING THE DEPOSITORS, NO SUCH
RIGHT OF REIMBURSEMENT IS NECESSARY.  IF, FOR EXAMPLE, A BANK HAS
$100,000 OF UNDIVIDED PROFITS, INTENDS TO PAY ITS DEPOSITORS $75,000
INTEREST ON THEIR DEPOSITS, AND HAS AN OBLIGATION FOR THIS TAX OF
$10,000, IT PERHAPS MAKES NO DIFFERENCE WHETHER THE BANK PAYS $65,000
TO ITS DEPOSITORS, WITHOUT RECOVERING ANYTHING BACK FROM THEM, OR PAYS
THEM $75,000, BUT LATER RECOVERS BACK THE $10,000 TAX PAID FOR THEIR
ACCOUNT.  UNDER EITHER METHOD THE BANK COMES OUT WHOLE, AND THE
DEPOSITORS RECEIVE THE SAME NET INTEREST PAYMENT.  (FN12)  BUT IF THE
BANK HAS DECLARED THE $75,000 INTEREST PAYMENT BEFORE THE TAX IS DUE,
WE CAN FIND NOTHING IN THE STATUTE WHICH WOULD GIVE THE BANK THE RIGHT
EITHER TO DEDUCT THE $10,000 TAX FROM THE INTEREST PAYMENT, OR TO
RECOVER IT BACK FROM THE DEPOSITORS.  AND CONCEIVABLY THE TAX MIGHT
EXCEED THE INTEREST PAYABLE TO THE DEPOSITORS, IN WHICH EVENT THE BANK
WOULD BE LEFT SHORT, ABSENT A RIGHT TO RECOVER THE EXCESS FROM THE
DEPOSITORS. 

THE OHIO COURT THOUGHT THAT IN CHARGING THE TAX TO SURPLUS, THE BANK
IN REALITY WOULD BE REDUCING THE DEPOSITORS' INTEREST IN THE SURPLUS,
WHICH IT DESCRIBED AS BEING "OWNED" BY THEM, AND THAT THEREFORE IN NO
CIRCUMSTANCE WAS A RIGHT OF REIMBURSEMENT NECESSARY.  BUT THERE ARE
DIFFICULTIES WITH THIS PROPOSITION.  IF THIS MEANS THAT THE CORPORATE
FICTION SHOULD BE DISREGARDED, THE RESULT WOULD BE THAT THE GOVERNMENT
BONDS WOULD HAVE TO BE EXCLUDED, SINCE ON THIS HYPOTHESIS SUCH
SECURITIES SHOULD THEN BE TREATED AS THE PROPERTY OF THE DEPOSITORS. 
ON THE OTHER HAND, IF THE OHIO COURT WAS REFERRING TO THE DEPOSITORS'
EQUITABLE INTEREST IN THE SURPLUS, AS SEEMS MORE LIKELY, THEN WITHOUT A
RIGHT OF RECOUPMENT THE BANK AS WELL AS THE DEPOSITORS BEARS THE IMPACT
OF THE TAX.    WITHOUT PROVISIONS PROTECTING THE BANK AGAINST THE
BURDENS OF THE TAX, WE CANNOT ASSUME THAT THE STATUTE'S OPERATION WILL
NOT INFRINGE ON THE IMMUNITY OF THE FEDERAL OBLIGATIONS HELD BY THE
BANKS.  IT IS NOT ADEQUATE MERELY TO SUGGEST THAT A BANK MAY BE
ENTITLED TO MAKE ITSELF WHOLE FROM THE DEPOSITORS UNDER OHIO COMMON
LAW.  FOR NO SUCH COMMON-LAW RIGHT HAS BEEN CALLED TO OUR ATTENTION. 
RATHER, THE OHIO COURT'S OPINION INDICATES THAT THE BANK MAY BE LEFT
WITHOUT ANY RIGHT OF REIMBURSEMENT.  (FN13)    WE CONCLUDE THAT THIS
TAX IS ON THE DEPOSITORS IN NAME ONLY, AND THAT FOR FEDERAL PURPOSES IT
MUST BE HELD TO BE ON THE BANKS THEMSELVES.  ACCORDINGLY, THE JUDGMENTS
IN BOTH CASES ARE REVERSED. 

FN1  ART. I, SEC. 8, CL. 2; ART. VI, CL. 2. 

FN2  "EXCEPT AS OTHERWISE PROVIDED BY LAW, ALL STOCKS, BONDS, TREASURY
NOTES, AND OTHER OBLIGATIONS OF THE UNITED STATES, SHALL BE EXEMPT FROM
TAXATION BY OR UNDER STATE OR MUNICIPAL OR LOCAL AUTHORITY." 

FN3  SOCIETY FOR SAVINGS WAS INCORPORATED UNDER OHIO LAW, AND FIRST
FEDERAL UNDER THE HOME OWNERS' LOAN ACT OF 1933, AS AMENDED, 48 STAT.
128, 12 U.S.C. SEC. 1461 ET SEQ. NOTHING TURNS HERE ON THE DIFFERENCE
IN THEIR ORIGINS. 

FN4  IN THE VIEW WE TAKE OF THIS CASE, IT IS UNNECESSARY TO CONSIDER
THE TAXABLE STATUS OF CERTAIN FEDERAL HOME LOAN BANK STOCK OWNED BY
FIRST FEDERAL, WHICH IS ALSO CLAIMED TO BE EXEMPT. 

FN5  161 OHIO ST. 122, 118 N.E.2D 651 (1954); 161 OHIO ST. 149, 118
N.E.2D 667.  WE NOTED PROBABLE JURISDICTION, 348 U.S. 807. 

FN6  "SEC.  5408  ...  .  ALL THE SHARES OF THE STOCKHOLDERS IN A
FINANCIAL INSTITUTION, LOCATED IN THIS STATE, INCORPORATED OR ORGANIZED
UNDER THE LAWS OF THE STATE OR OF THE UNITED STATES, THE CAPITAL STOCK
OF WHICH IS DIVIDED INTO SHARES, EXCEPTING SUCH AS ARE DEFINED AS
'DEPOSITS' IN SECTION 5324 OF THE GENERAL CODE, AND ALL THE SHARES OF
THE STOCKHOLDERS IN AN UNINCORPORATED FINANCIAL INSTITUTION, LOCATED IN
THIS STATE, THE CAPITAL STOCK OF WHICH IS DIVIDED INTO SHARES HELD BY
THE OWNERS OF SUCH FINANCIAL INSTITUTION, AND THE CAPITAL EMPLOYED, OR
THE PROPERTY REPRESENTING IT, IN A FINANCIAL INSTITUTION THE CAPITAL OF
WHICH IS NOT DIVIDED INTO SHARES, OR WHICH HAS NO CAPITAL STOCK,
LOCATED IN THIS STATE, SHALL BE LISTED AND ASSESSED AT THE BOOK VALUE
THEREOF, AND TAXED IN THE MANNER PROVIDED IN THIS CHAPTER." 

"SEC. 5412  ...  .  UPON RECEIVING SUCH REPORT THE TAX COMMISSIONER
SHALL ASCERTAIN AND ASSESS ALL THE TAXABLE SHARES OF SUCH FINANCIAL
INSTITUTION, OR THE VALUE OF THE PROPERTY REPRESENTING THE CAPITAL
EMPLOYED BY SUCH FINANCIAL INSTITUTION, NOT DIVIDED INTO SHARES, AT THE
AGGREGATE AMOUNT OF THE CAPITAL, THE SURPLUS OR RESERVE FUND AND THE
UNDIVIDED PROFITS AS SHOWN IN SUCH REPORT, AND THE AMOUNT OF TAXABLE
DEPOSITS OF SUCH INSTITUTION IN EACH COUNTY IN WHICH THE INSTITUTION
MAINTAINED AN OFFICE OR OFFICES FOR THE RECEIPT OF DEPOSITS.  SUCH
AMOUNTS SHALL BE ASSESSED IN THE NAME OF SUCH FINANCIAL INSTITUTION
EXCEPTING THAT THE AMOUNTS OF THE TAXABLE DEPOSITS WHOLLY WITHDRAWN
FROM EACH SUCH INSTITUTION WITHIN THE TIMES MENTIONED IN SECTION 5411-2
OF THE GENERAL CODE AND SEPARATELY SET FORTH IN SUCH REPORT SHALL BE
SUBTRACTED FROM THE AMOUNT OF TAXABLE DEPOSITS SO ASSESSED AND
SEPARATELY ASSESSED IN THE NAMES OF SUCH RESPECTIVE DEPOSITORS.  IN THE
CASE OF AN INCORPORATED FINANCIAL INSTITUTION ALL OF WHOSE SHARES
CONSTITUTE DEPOSITS AS DEFINED IN SECTION 5324 OF THE GENERAL CODE SUCH
ASSESSMENT OF SHARES SHALL EXCLUDE THE CAPITAL STOCK THEREOF AS SO
SHOWN BUT SHALL INCLUDE THE SURPLUS OR RESERVE AND UNDIVIDED PROFITS SO
SHOWN." 

"SEC. 5638-1  ...  .  ANNUAL TAXES ARE HEREBY LEVIED ON THE KINDS AND
CLASSES OF INTANGIBLE PROPERTY, HEREINAFTER ENUMERATED, ON THE
INTANGIBLE PROPERTY TAX LIST IN THE OFFICE OF THE AUDITOR OF STATE AND
DUPLICATE THEREOF IN THE OFFICE OF TREASURER OF STATE AT THE FOLLOWING
RATES, TO WIT: ...  DEPOSITS, TWO MILLS ON THE DOLLAR; SHARES IN AND
CAPITAL EMPLOYED BY FINANCIAL INSTITUTIONS, TWO MILLS ON THE DOLLAR;
...  ." 

FN7  SEE NOTE 8, PP. 149-150, INFRA. 

FN8  "SEC.  5672  ...  .  TAXES ASSESSED ON NON-WITHDRAWABLE SHARES
OF STOCK, OF A FINANCIAL INSTITUTION, SHALL BE A LIEN ON SUCH SHARES
FROM THE FIRST DAY OF JANUARY IN EACH YEAR UNTIL THEY ARE PAID. 

"IT SHALL BE THE DUTY OF EVERY FINANCIAL INSTITUTION TO COLLECT THE
TAXES DUE UPON ITS SHARES OF STOCK FROM THE SEVERAL OWNERS OF SUCH
SHARES, AND TO PAY THE SAME TO THE TREASURER OF STATE AND ANY FINANCIAL
INSTITUTION FAILING TO PAY THE SAID TAXES AS HEREIN PROVIDED, SHALL BE
LIABLE BY WAY OF PENALTY FOR THE GROSS AMOUNT OF THE TAXES DUE FROM ALL
THE OWNERS OF THE SHARES OF STOCK, AND FOR AN ADDITIONAL AMOUNT OF ONE
HUNDRED DOLLARS FOR EVERY DAY OF DELAY IN THE PAYMENT OF SAID TAXES. 

"SEC. 5673  ...  .  SUCH FINANCIAL INSTITUTION PAYING TO THE
TREASURER OF STATE THE TAXES ASSESSED UPON ITS SHARES, IN THE HANDS OF
ITS SHAREHOLDERS RESPECTIVELY, AS PROVIDED IN THE NEXT PRECEDING
THEREAFTER BECOME DUE ON SUCH SHARES, AND SHALL HAVE A LIEN UPON THE
SHARES OF STOCK AND ON ALL FUNDS IN ITS POSSESSION BELONGING TO SUCH
SHAREHOLDERS, OR WHICH MAY AT ANY TIME COME INTO ITS POSSESSION, FOR
REIMBURSEMENT OF THE TAXES SO PAID ON ACCOUNT OF THE SEVERAL
SHAREHOLDERS, WITH LEGAL INTEREST; AND SUCH LIEN MAY BE ENFORCED IN ANY
APPROPRIATE MANNER. 

"SEC. 5673-1  ...  .  TAXES ASSESSED ON DEPOSITS IN A FINANCIAL
INSTITUTION IN THIS STATE SHALL BE A LIEN ON THE DEPOSIT OF EACH PERSON
AS OF THE DAY FIXED BY THE TAX COMMISSION OF OHIO FOR THE LISTING OF
SUCH DEPOSITS.  TAXES ASSESSED ON THE SHARES OF STOCK OF SUCH AN
INSTITUTION, ALL OF WHOSE SHARES ARE WITHDRAWABLE AND DEFINED AS
DEPOSITS IN CHAPTER FOUR OF THIS TITLE, SHALL BE A LIEN ON SUCH SHARES
SO DEFINED AS DEPOSITS AS OF THE DAY SO FIXED.  IT SHALL BE THE DUTY OF
EVERY FINANCIAL INSTITUTION TO PAY THE TAXES ON THE AMOUNT OF SUCH
DEPOSITS AND/OR WITHDRAWABLE SHARES ASSESSED IN ITS NAME TO THE
TREASURER OF STATE AND ANY SUCH INSTITUTION FAILING TO PAY SUCH TAXES
AS HEREIN PROVIDED SHALL BE LIABLE BY WAY OF PENALTY FOR THE GROSS
AMOUNT OF THE TAXES DUE ON AND WITH RESPECT TO ALL ITS DEPOSITS AND
WITHDRAWABLE SHARES ASSESSED IN ITS NAME AND FOR AN ADDITIONAL AMOUNT
OF ONE HUNDRED DOLLARS FOR EVERY DAY OF DELAY IN THE PAYMENT OF SUCH
TAXES. 

"SEC. 5673-2  ...  .  A FINANCIAL INSTITUTION SO REQUIRED TO PAY TO
THE TREASURER OF STATE THE TAXES ASSESSED UPON ITS DEPOSIT ACCOUNTS, AS
TAXABLE PROPERTY OF ITS DEPOSITORS, AND/OR UPON ITS WITHDRAWABLE SHARES
AS TAXABLE PROPERTY OF ITS SHAREHOLDERS RESPECTIVELY, AS PROVIDED IN
THE NEXT PRECEDING SECTION, MAY, UPON RECEIPT OF NOTICE OF THE DAY
FIXED FOR THE LISTING OS SUCH DEPOSITS, CHARGE THE AMOUNT THEREOF TO
AND DEDUCT THE SAME FROM THE DEPOSIT OF EACH DEPOSITOR, OR FROM THE
INTEREST THAT IS DUE OR THEREAFTER BECOMES DUE THEREON, OR FROM THE
DIVIDENDS THAT ARE DUE OR THEREAFTER BECOME DUE THEREON, AS THE CASE
MAY BE, AND SHALL HAVE A LIEN UPON SUCH DEPOSIT, INTEREST AND/OR
DIVIDENDS AND ON ALL FUNDS IN ITS POSSESSION BELONGING TO SUCH
DEPOSITOR OR SHAREHOLDER, OR WHICH MAY AT ANY TIME COME INTO ITS
POSSESSION, FOR REIMBURSEMENT OF THE TAXES SO PAYABLE, WITH LEGAL
INTEREST.  SUCH LIEN MAY BE ENFORCED IN ANY APPROPRIATE MANNER AT ANY
TIME WITHIN SIX MONTHS AFTER THE PAYMENT OF THE TAXES TO THE
TREASURER." 

FN9  AS CONSTRUED BY THE STATE COURT, THE "INTANGIBLE PROPERTY TAX"
ON DEPOSITORS APPLIED TO DIFFERENT PROPERTY THAN DID THE "DEPOSIT" TAX
ALSO IMPOSED ON THEM, INVOLVING, AS WE SEE IT, NO QUESTION OF
DUPLICATION OR OVERLAPPING BETWEEN THE TWO TAXES. 

FN10  SECTION 5412 PROVIDES IN PART:  "UPON RECEIVING SUCH REPORT THE
TAX COMMISSIONER SHALL ASCERTAIN AND ASSESS  ...  THE AMOUNT OF TAXABLE
DEPOSITS OF SUCH INSTITUTION IN EACH COUNTY IN WHICH THE INSTITUTION
MAINTAINED AN OFFICE OR OFFICES FOR THE RECEIPT OF DEPOSITS.  SUCH
AMOUNTS SHALL BE ASSESSED IN THE NAME OF SUCH FINANCIAL INSTITUTION
EXCEPTING THAT THE AMOUNTS OF THE TAXABLE DEPOSITS WHOLLY WITHDRAWN
FROM EACH SUCH INSTITUTION WITHIN THE TIMES MENTIONED IN SECTION 5411-2
OF THE GENERAL CODE (THAT IS, BETWEEN THE DATE OF ASSESSMENT AND THE
BANK'S RECEIPT OF THE NOTICE OF SUCH DATE, OR IF NO NOTICE IS RECEIVED,
THE NEXT JANUARY 1) AND SEPARATELY SET FORTH IN SUCH REPORT SHALL BE
SUBTRACTED FROM THE AMOUNT OF TAXABLE DEPOSITS SO ASSESSED AND
SEPARATELY ASSESSED IN THE NAMES OF SUCH RESPECTIVE DEPOSITORS." 

FOR SECS. 5673-1 AND 5673-2, SEE NOTE 8, PP. 149-150, SUPRA. 

FN11  SEE NOTE 8, PP. 149-150, SUPRA. 

FN12  EVEN SO, IF A COMPARABLE SITUATION AROSE IN CONNECTION WITH THE
TAX ON SHAREHOLDERS, THE BANK WOULD HAVE A RIGHT OF REIMBURSEMENT UNDER
THE PROVISIONS OF THE OHIO STATUTE.  SEE NOTE 8, PP. 149-150, SUPRA. 

FN13  THE OHIO COURT STATED:  "IN OUR OPINION, SUCH A PROVISION (AN
EXPRESS RIGHT OF REIMBURSEMENT) IS NOT NECESSARY TO ENABLE SUCH A
FINANCIAL INSTITUTION TO SECURE SUCH REIMBURSEMENT."  161 OHIO ST., AT
136, 118 N.E.2D, AT 659.  IT IS CLEAR THAT BY THIS STATEMENT THE COURT
DID NOT MEAN THAT AN IMPLIED RIGHT OF REIMBURSEMENT EXISTED UNDER OHIO
LAW, FOR IT THEN WENT ON TO HOLD THAT "THE FINANCIAL INSTITUTION, WHICH
PAYS THE TAX ON THE DEPOSITORS' PROPERTY INTERESTS IN THE CORPORATION,
WILL ALWAYS BE ABLE TO REIMBURSE ITSELF BY REDUCING THE ULTIMATE VALUE
OF THE PROPERTY INTERESTS OF THOSE WHO ARE THE ONLY ONES WHO CAN HAVE
ANY CLAIM TO BENEFIT FROM THE OWNERSHIP INTERESTS TAXED."  161 OHIO
ST., AT 137, 118 N.E.2D, AT 659-660.  THIS IS OF COURSE NOT
REIMBURSEMENT IN ANY PROPER SENSE OF THE TERM. 

MR. JUSTICE BURTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :










RICE V. SIOUX CITY MEMORIAL PARK CEMETERY, INC. 349 U.S. 70 


NO. 28.  DECIDED MAY 9, 1955 - REHEARING GRANTED; JUDGMENT, 348 U.S.
880, VACATED; AND CERTIORARI DISMISSED. 


IN A CASE INVOLVING QUESTIONS ARISING UNDER THE CONSTITUTION OF THE
UNITED STATES WHICH HAD BEEN DECIDED ADVERSELY TO PETITIONER BY THE
SUPREME COURT OF IOWA AND WHICH APPARENTLY WERE OF PUBLIC IMPORTANCE,
THIS COURT GRANTED A WRIT OF CERTIORARI.  AFTER ARGUMENT, THE DECISION
OF THE SUPREME COURT OF IOWA WAS AFFIRMED BY AN EQUALLY DIVIDED COURT. 
UPON CONSIDERATION OF A PETITION FOR REHEARING BEFORE A FULL COURT, IT
APPEARED THAT AN IOWA STATUTE ENACTED SINCE THE COMMENCEMENT OF THIS
LITIGATION BARS THE ULTIMATE QUESTION PRESENTED IN THIS CASE FROM AGAIN
ARISING IN THAT STATE, THOUGH THE STATUTE IS INAPPLICABLE TO
PETITIONER'S CASE.  HELD:  THE PETITION FOR REHEARING IS GRANTED, THE
JUDGMENT OF AFFIRMANCE IS VACATED AND THE WRIT OF CERTIORARI IS
DISMISSED AS IMPROVIDENTLY GRANTED, SINCE THIS CASE IS NOT ONE IN WHICH
"THERE ARE SPECIAL AND IMPORTANT REASONS" FOR GRANTING A WRIT OF
CERTIORARI, AS REQUIRED BY RULE 19 OF THE RULES OF THIS COURT.  PP. 71
80. 

(A)  THIS COURT DOES NOT SIT FOR THE BENEFIT OF THE PARTICULAR
LITIGANTS.  P. 74. 

(B)  "SPECIAL AND IMPORTANT REASONS" IMPLY A REACH TO A PROBLEM
BEYOND THE ACADEMIC OR THE EPISODIC.  P. 74. 

(C)  THIS IS ESPECIALLY TRUE IN CASES INVOLVING CONSTITUTIONAL
QUESTIONS.  P. 74. 

(D)  IT IS VERY IMPORTANT THAT THIS COURT 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.  P. 79. 

RICE V. SIOUX CITY MEMORIAL PARK CEMETERY, INC. ET AL. 

ON PETITION FOR REHEARING. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION FOR DAMAGES BROUGHT BY PLAINTIFF, PETITIONER HERE,
IN THE DISTRICT COURT OF WOODBURY COUNTY, IOWA, TO COMPENSATE HER FOR
MENTAL SUFFERING CLAIMED TO FLOW FROM DEFENDANT CEMETERY'S REFUSAL TO
BURY HER HUSBAND, A WINNEBAGO INDIAN, AFTER SERVICES HAD BEEN CONDUCTED
AT THE GRAVE SITE AND THE BURIAL PARTY HAD DISBANDED.  PLAINTIFF
FOUNDED HER ACTION, SO FAR AS HERE RELEVANT, ON BREACH OF A CONTRACT
WHEREBY DEFENDANT HAD UNDERTAKEN TO AFFORD PLAINTIFF "RIGHT OF
SEPULTURE" IN A SPECIFIED LOT OF ITS CEMETERY.  THE CONTRACT OF SALE OF
THE BURIAL LOT ALSO PROVIDED THAT: 

"BURIAL PRIVILEGES ACCRUE ONLY TO MEMBERS OF THE CAUCASIAN RACE." 

PLAINTIFF ASSERTED THAT THIS PROVISION WAS VOID UNDER BOTH THE IOWA
AND THE UNITED STATES CONSTITUTIONS AND THAT RECOGNITION OF ITS
VALIDITY WOULD VIOLATE THE FOURTEENTH AMENDMENT.  BY AN AMENDMENT TO
THE COMPLAINT, PLAINTIFF ALSO CLAIMED A VIOLATION OF THE UNITED NATIONS
CHARTER.  THE DEFENSE WAS ANCHORED IN THE VALIDITY OF THE CLAUSE AS A
BAR TO THIS ACTION. 

AFTER AN ABORTIVE ATTEMPT TO REMOVE THE CASE TO THE FEDERAL COURTS,
102 F. SUPP. 658, DEFENDANTS MOVED TO DISMISS THE AMENDED PETITION IN
THE STATE COURT.  THIS MOTION WAS DENIED, EXCEPT THAT INSOFAR AS THE
AMENDMENT TO THE PETITION HAD RELIED ON THE UNITED NATIONS CHARTER, THE
AMENDMENT WAS DISMISSED.  FOLLOWING IOWA PROCEDURE, THE TRIAL COURT
ENTERTAINED MOTIONS BY BOTH PARTIES REQUESTING IT TO ADJUDICATE PRIOR
TO TRIAL POINTS OF LAW RELATING TO THE EFFECT OF THE RESTRICTIVE
COVENANT.  THE IOWA COURT RULED THAT THE CLAUSE WAS NOT VOID BUT WAS
UNENFORCEABLE AS A VIOLATION OF THE CONSTITUTIONS AND PUBLIC POLICY OF
IOWA AND THE UNITED STATES.  NEVERTHELESS, IT HELD THAT THE CLAUSE "MAY
BE RELIED UPON AS A DEFENSE" AND THAT "THE ACTION OF A STATE OR FEDERAL
COURT IN PERMITTING A DEFENDANT TO STAND UPON THE TERMS OF ITS CONTRACT
AND TO DEFEND THIS ACTION IN COURT WOULD NOT CONSTITUTE STATE OR
FEDERAL ACTION" CONTRARY TO THE FIFTH AND FOURTEENTH AMENDMENTS.  IT
AGAIN RULED THAT THE UNITED NATIONS CHARTER WAS IRRELEVANT, AND THE
CASE WAS FINALLY DISMISSED. 

THE SUPREME COURT OF IOWA AFFIRMED, REASONING THAT THE DECISION OF
THIS COURT IN SHELLEY V. KRAEMER, 334 U.S. 1, WHEN CONSIDERED IN
CONJUNCTION WITH THE CIVIL RIGHTS CASES, 109 U.S. 3, DID NOT REQUIRE A
STATE COURT TO IGNORE SUCH A PROVISION IN A CONTRACT WHEN RAISED AS A
DEFENSE AND IN EFFECT TO REFORM THE CONTRACT BY ENFORCING IT WITHOUT
REGARD TO THE CLAUSE.  THE COURT FURTHER RULED THAT THE PROVISIONS OF
THE UNITED NATIONS CHARTER "HAVE NO BEARING ON THE CASE" AND THAT NONE
OF THE GROUNDS BASED ON LOCAL LAW SUSTAINED THE ACTION.  245 IOWA 147,
60 N.W.2D 110.  WE GRANTED CERTIORARI, 347 U.S. 942. 

THE BASIS FOR PETITIONER'S RESORT TO THIS COURT WAS PRIMARILY THE
FOURTEENTH AMENDMENT, THROUGH THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES.  ONLY IF A STATE DEPRIVES ANY PERSON OR DENIES HIM ENFORCEMENT
OF A RIGHT GUARANTEED BY THE FOURTEENTH AMENDMENT CAN ITS PROTECTION BE
INVOKED.  SUCH A CLAIM INVOLVES THE THRESHOLD PROBLEM WHETHER, IN THE
CIRCUMSTANCES OF THIS CASE, WHAT IOWA, THROUGH ITS COURTS, DID AMOUNTED
TO "STATE ACTION."  THIS IS A COMPLICATED PROBLEM WHICH FOR LONG HAS
DIVIDED OPINION IN THIS COURT.  SEE, E.G., RAYMOND V. CHICAGO TRACTION
CO., 207 U.S. 20; SNOWDEN V. HUGHES, 321 U.S. 1; TERRY V. ADAMS, 345
U.S. 461.  SEE ALSO, BARROWS V. JACKSON, 346 U.S. 249.  WERE THIS
HURDLE CLEARED, THE ULTIMATE SUBSTANTIVE QUESTION, WHETHER IN THE
CIRCUMSTANCES OF THIS CASE THE ACTION COMPLAINED OF WAS CONDEMNED BY
THE FOURTEENTH AMENDMENT, WOULD IN TURN PRESENT NO EASY CONSTITUTIONAL
PROBLEM. 

THE CASE WAS ARGUED HERE AND THE STARK FACT IS THAT THE COURT WAS
EVENLY DIVIDED.  348 U.S. 880.  IN ACCORDANCE WITH UNDEVIATING
PRACTICE, NO INDICATION WAS GIVEN REGARDING THE GROUNDS OF THIS
DIVISION. 

IN ADDITION TO THE FAMILIAR THOUGH VEXING PROBLEMS OF CONSTITUTIONAL
LAW, THERE WAS REFERENCE IN THE OPINIONS OF THE IOWA COURTS AND IN THE
BRIEFS OF COUNSEL TO THE UNITED NATIONS CHARTER.  THE IOWA COURTS
DISMISSED SUMMARILY THE CLAIM THAT SOME OF THE GENERAL AND HORTATORY
LANGUAGE OF THIS TREATY, WHICH SO FAR AS THE UNITED STATES IS CONCERNED
IS ITSELF AN EXERCISE OF THE TREATY-MAKING POWER UNDER THE
CONSTITUTION, CONSTITUTED A LIMITATION ON THE RIGHTS OF THE STATES AND
OF PERSONS OTHERWISE RESERVED TO THEM UNDER THE CONSTITUTION.  IT IS A
REDUNDANCY TO ADD THAT THERE IS, OF COURSE, NO BASIS FOR ANY INFERENCE
THAT THE DIVISION OF THIS COURT REFLECTED ANY DIVERSITY OF OPINION ON
THIS QUESTION. 

FOLLOWING OUR AFFIRMANCE BY NECESSITY OF THE DECISION OF THE IOWA
SUPREME COURT, A PETITION WAS FILED FOR A REHEARING BEFORE A FULL
COURT.  IN OUR CONSIDERATION OF THIS PETITION OUR ATTENTION HAS NOW
BEEN FOCUSED UPON AN IOWA STATUTE ENACTED SINCE THE COMMENCEMENT OF
THIS LITIGATION.  THOUGH IT WAS IN EXISTENCE AT THE TIME THE CASE FIRST
CAME HERE, IT WAS THEN NOT SEEN IN PROPER FOCUS BECAUSE BLANKETED BY
THE ISSUES OF "STATE ACTION" AND CONSTITUTIONAL POWER FOR WHICH OUR
INTEREST WAS ENLISTED.  THIS IOWA STATUTE BARS THE ULTIMATE QUESTION
PRESENTED IN THIS CASE FROM AGAIN ARISING IN THAT STATE.  IN LIGHT OF
THIS FACT AND THE STANDARDS GOVERNING THE EXERCISE OF OUR DISCRETIONARY
POWER OF REVIEW UPON WRIT OF CERTIORARI, WE HAVE CONSIDERED ANEW
WHETHER THIS CASE IS ONE IN WHICH "THERE ARE SPECIAL AND IMPORTANT
REASONS" FOR GRANTING THE WRIT OF CERTIORARI, AS REQUIRED BY SUPREME
COURT RULE 19. 

THIS RULE, FORMULATED THIRTY YEARS AGO, EMBODIES THE CRITERIA,
DEVELOPED EVER SINCE THE EVARTS ACT OF 1891, BY WHICH THE COURT
DETERMINES WHETHER A PARTICULAR CASE MERITS CONSIDERATION, WITH DUE
REGARD TO THE PROPER FUNCTIONING OF THE LIMITED REVIEWING POWER TO
WHICH THIS COURT IS CONFINED, DECISIVELY RESTRICTED THROUGH THE
CREATION OF THE INTERMEDIATE COURTS OF APPEALS AND MORE LARGELY
CONFINED BY THE JUDICIARY ACT OF 1925.  IN ILLUSTRATING THE CHARACTER
OF REASONS WHICH MAY BE DEEMED "SPECIAL AND IMPORTANT," THE RULE REFERS
TO CASES: 

"WHERE A STATE COURT HAS DECIDED A FEDERAL QUESTION OF SUBSTANCE NOT
THERETOFORE DETERMINED BY THIS COURT, OR HAS DECIDED IT IN A WAY
PROBABLY NOT IN ACCORD WITH APPLICABLE DECISIONS OF THIS COURT." 

A FEDERAL QUESTION RAISED BY A PETITIONER MAY BE "OF SUBSTANCE" IN
THE SENSE THAT, ABSTRACTLY CONSIDERED, IT MAY PRESENT AN INTELLECTUALLY
INTERESTING AND SOLID PROBLEM.  BUT THIS COURT DOES NOT SIT TO SATISFY
A SCHOLARLY INTEREST IN SUCH ISSUES.  NOR DOES IT SIT FOR THE BENEFIT
OF THE PARTICULAR LITIGANTS.  (MAGNUM IMPORT CO. V. COTY, 262 U.S. 159,
163; SEE ALSO ADDRESS OF MR. CHIEF JUSTICE VINSON, BEFORE THE AMERICAN
BAR ASSOCIATION, SEPT. 7, 1949, 69 SUP. CT. V, VI; ADDRESS OF MR. CHIEF
JUSTICE HUGHES, BEFORE THE AMERICAN LAW INSTITUTE, MAY 10, 1934, XI
PROC. AM. LAW INST.  313.)  "SPECIAL AND IMPORTANT REASONS" IMPLY A
REACH TO A PROBLEM BEYOND THE ACADEMIC OR THE EPISODIC.  THIS IS
ESPECIALLY TRUE WHERE THE ISSUES INVOLVED REACH CONSTITUTIONAL
DIMENSIONS, FOR THEN THERE COMES INTO PLAY REGARD FOR THE COURT'S DUTY
TO AVOID DECISION OF CONSTITUTIONAL ISSUES UNLESS AVOIDANCE BECOMES
EVASION.  CF. THE CLASSIC RULES FOR SUCH AVOIDANCE STATED BY MR.
JUSTICE BRANDEIS IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S.
288, 341. 

IN THE PRESENT CASE, CERTIORARI WAS GRANTED, ACCORDING TO OUR
PRACTICE, BECAUSE AT LEAST FOUR MEMBERS OF THE COURT DEEMED THAT
DESPITE THE RATHER UNIQUE CIRCUMSTANCES OF THIS CASE IOWA'S WILLINGNESS
TO ENFORCE THIS RESTRICTIVE COVENANT RENDERED IT "SPECIAL AND
IMPORTANT."  WE WERE UNMINDFUL AT THE TIME OF IOWA'S CORRECTIVE
LEGISLATION AND OF ITS IMPLICATIONS.  WHILE THAT STATUTE HAD BEEN CITED
IN THE OPINION OF THE IOWA SUPREME COURT, WITHOUT QUOTATION, IN
TANGENTIAL SUPPORT OF A SUBSTANTIVE ARGUMENT, AND WHILE SIMILAR PASSING
REFERENCES APPEAR IN RESPONDENT'S BRIEFS IN OPPOSITION TO THE PETITION
AND ON THE MERITS, IT WAS NOT EVEN SUGGESTED AS A GROUND FOR OPPOSING
THE GRANT.  ITS IMPORTANCE WAS NOT PUT IN IDENTIFYING PERSPECTIVE, AND
IT DID NOT EMERGE TO SIGNIFICANCE IN THE SIFTING PROCESS THROUGH WHICH
THE ANNUAL HUNDREDS OF PETITIONS FOR CERTIORARI PASS.  ARGUMENT AT THE
BAR WAS CONCERNED WITH OTHER ISSUES AND THE EVEN DIVISION OF THE COURT
FORESTALLED THAT INTENSIVE STUDY ATTENDANT UPON OPINION-WRITING WHICH
MIGHT WELL HAVE REVEALED THE CRUCIAL RELEVANCE OF THE STATUTE. 

THESE OVERSIGHTS SHOULD NOT NOW BE COMPOUNDED BY FURTHER DISREGARD OF
THE IMPACT OF THIS ENACTMENT WHEN VIEWED IN THE LIGHT OF SETTLED IOWA
LAW, NOT PREVIOUSLY BROUGHT TO OUR ATTENTION, CONCERNING ITS EFFECT
UPON PRIVATE LITIGATION.  THE STATUTE PROVIDES: 

"SECTION 1.  ANY CORPORATION OR OTHER FORM OF ORGANIZATION ORGANIZED
OR ENGAGING IN THE BUSINESS UNDER THE LAWS OF THE STATE OF IOWA, OR
WHERESOEVER ORGANIZED AND ENGAGING IN THE BUSINESS IN THE STATE OF
IOWA, OF THE OWNERSHIP, MAINTENANCE OR OPERATION OF A CEMETERY  ...
EXCEPT  ...  CHURCHES OR RELIGIOUS OR ESTABLISHED FRATERNAL SOCIETIES,
OR INCORPORATED CITIES OR TOWNS OR OTHER POLITICAL SUBDIVISIONS OF THE
STATE OF IOWA  ...  SHALL BE SUBJECT TO THE PROVISIONS OF THIS
CHAPTER. 

     *         *        *         *         * 

"SEC. 8.  IT SHALL BE UNLAWFUL FOR ANY ORGANIZATION SUBJECT TO THE
PROVISIONS OF THIS CHAPTER TO DENY THE PRIVILEGE OF INTERMENT OF THE
REMAINS OF ANY DECEASED PERSON IN ANY CEMETERY  ...  SOLELY BECAUSE OF
THE RACE OR COLOR OF SUCH DECEASED PERSON.  ANY CONTRACT, AGREEMENT,
DEED, COVENANT, RESTRICTION OR CHARTER PROVISION AT ANY TIME ENTERED
INTO, OR BY-LAW, RULE OR REGULATION ADOPTED OR PUT IN FORCE, EITHER
SUBSEQUENT OR PRIOR TO THE EFFECTIVE DATE OF THIS CHAPTER, AUTHORIZING,
PERMITTING OR REQUIRING ANY ORGANIZATION SUBJECT TO THE PROVISIONS OF
THIS CHAPTER TO DENY SUCH PRIVILEGE OF INTERMENT BECAUSE OF RACE OR
COLOR OF SUCH DECEASED PERSON IS HEREBY DECLARED TO BE NULL AND VOID
AND IN CONFLICT WITH THE PUBLIC POLICY OF THIS STATE  ...  . 

"SEC. 9.  ANY PERSON, FIRM OR CORPORATION VIOLATING ANY OF THE
PROVISIONS OF THIS CHAPTER, SHALL, UPON CONVICTION, BE PUNISHABLE BY A
FINE OF NOT LESS THAN TWENTY-FIVE DOLLARS ($25.00) NOR MORE THAN ONE
HUNDRED DOLLARS ($100.00). 

     *         *         *         * * 

"SEC. 12.  NOTHING IN THIS ACT CONTAINED SHALL AFFECT THE RIGHTS OF
ANY PARTIES TO ANY PENDING LITIGATION. 

     *         *         *         *         * 

"APPROVED APRIL 21, 1953."  IOWA LAWS 1953, C. 84; IOWA CODE ANN.
(1954 CUM. SUPP.) SEC. 566A.  1-11. 

AS A RESULT OF THIS ACT, IN ANY OTHER CASE ARISING UNDER SIMILAR
CIRCUMSTANCES NOT ONLY WOULD THE STATUTORY PENALTIES BE APPLICABLE, BUT
ALSO, UNDER IOWA LAW, ONE IN PETITIONER'S POSITION WOULD BE ENTITLED TO
RECOVER DAMAGES IN A CIVIL ACTION BASED ON A VIOLATION OF THE STATUTE. 
SEE HUMBURD V. CRAWFORD, 128 IOWA 743, 105 N.W. 330; BROWN V. J.H. BELL
CO., 146 IOWA 89, 123 N.W. 231, 124 N.W. 901; AMOS V. PROM, INC., 117
F. SUPP. 615 (D.C.N.D. IOWA). 

HAD THE STATUTE BEEN PROPERLY BROUGHT TO OUR ATTENTION AND THE CASE
THEREBY PUT INTO PROPER FOCUS, THE CASE WOULD HAVE ASSUMED SUCH AN
ISOLATED SIGNIFICANCE THAT IT WOULD HARDLY HAVE BEEN BROUGHT HERE IN
THE FIRST INSTANCE.  (FN1)  ANY ADJUDICATION OF THE CONSTITUTIONAL
CLAIMS PRESSED BY PETITIONER WOULD NOW BE AN ADJUDICATION UNDER
CIRCUMSTANCES NOT PROMOTIVE OF THE VERY SOCIAL CONSIDERATIONS WHICH
EVIDENTLY INSPIRED THE IOWA LEGISLATURE TO PROVIDE AGAINST THE KIND OF
DISCRIMINATION OF WHICH COMPLAINT IS HERE MADE.  ON THE ONE HAND, WE
SHOULD HESITATE TO PASS JUDGMENT ON IOWA FOR UNCONSTITUTIONAL ACTION,
WERE SUCH TO BE FOUND, WHEN IT HAS ALREADY RECTIFIED ANY POSSIBLE
ERROR.  ON THE OTHER HAND, WE SHOULD NOT UNNECESSARILY DISCOURAGE SUCH
REMEDIAL ACTION BY POSSIBLE CONDONATION OF THIS ISOLATED INCIDENT. 
MOREOVER, THE EVIDENT DIFFICULTIES OF THE CASE SUGGEST THAT, IN THE
ABSENCE OF COMPELLING REASON, WE SHOULD NOT RISK INCONCLUSIVE AND
DIVISIVE DISPOSITION OF A CASE WHEN TIME MAY FURTHER ILLUMINE OR
COMPLETELY OUTMODE THE ISSUES IN DISPUTE. 

SUCH FACTORS ARE AMONG THE MANY WHICH MUST BE WEIGHED IN THE EXERCISE
OF THAT "SOUND JUDICIAL DISCRETION" WHICH RULE 19 REQUIRES.  WE HAVE
TAKEN THIS OPPORTUNITY TO EXPLAIN THEIR RELEVANCE, WHEN NORMALLY, FOR
OBVIOUS REASONS IN VIEW OF OUR VOLUME OF BUSINESS, NO OPINION
ACCOMPANIES DISMISSAL OF A WRIT AS IMPROVIDENTLY GRANTED, BECAUSE OF
THE APT ILLUSTRATION HERE PROVIDED OF THE KINDS OF CONSIDERATIONS,
BEYOND THOSE LISTED BY RULE 19 AS ILLUSTRATIVE BUT NOT EXHAUSTIVE,
WHICH PRECLUDE ADJUDICATION ON THE MERITS OF CASES WHICH MAY HAVE THE
SURFACE APPEARANCE OF PUBLIC IMPORTANCE. 

WE ARE THEREFORE OF THE OPINION THAT THIS COURT'S ORDER OF NOVEMBER
15, 1954, AFFIRMING BY AN EQUALLY DIVIDED COURT THE DECISION OF THE
IOWA SUPREME COURT, MUST BE VACATED AND THE WRIT OF CERTIORARI
DISMISSED AS IMPROVIDENTLY GRANTED.  THERE IS NOTHING UNIQUE ABOUT SUCH
DISMISSAL EVEN AFTER FULL ARGUMENT.  THERE HAVE BEEN MORE THAN SIXTY
SUCH CASES AND ON OCCASION FULL OPINIONS HAVE ACCOMPANIED THE
DISMISSAL.  (FN2)  THE CIRCUMSTANCES OF THIS CASE MAY BE DIFFERENT AND
MORE UNUSUAL.   BUT THIS IMPRESSIVE PRACTICE PROVES THAT THE COURT HAS
NOT HESITATED TO DISMISS A WRIT EVEN AT THIS ADVANCED STAGE WHERE IT
APPEARS ON FURTHER DELIBERATION, INDUCED BY NEW CONSIDERATIONS, THAT
THE CASE IS NOT APPROPRIATE FOR ADJUDICATION.  IN THE WORDS OF MR.
CHIEF JUSTICE TAFT, SPEAKING FOR A UNANIMOUS COURT:    "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."  LAYNE & BOWLER CORP.
V. WESTERN WELL WORKS, INC., 261 U.S. 387, 393. 

THE PETITION FOR REHEARING IS GRANTED.  THE ORDER OF THIS COURT OF
NOVEMBER 15, 1954, AFFIRMING BY NECESSITY THE JUDGMENT OF THE SUPREME
COURT OF IOWA IS VACATED AND THE WRIT OF CERTIORARI IS DISMISSED AS
IMPROVIDENTLY GRANTED.  IT IS SO ORDERED. 

FN1  CF. DISTRICT OF COLUMBIA V. SWEENEY, 310 U.S. 631, WHERE
CERTIORARI WAS DENIED "IN VIEW OF THE FACT THAT THE TAX IS LAID UNDER A
STATUTE WHICH HAS BEEN REPEALED AND THE QUESTION IS THEREFORE NOT OF
PUBLIC IMPORTANCE." 

FN2  UNITED STATES V. RIMER, 220 U.S. 547; FURNESS, WITHY & CO. V.
YANG-TSZE INS. ASSN., 242 U.S. 430; TYRRELL V. DISTRICT OF COLUMBIA,
243 U.S. 1; HOUSTON OIL CO. V. GOODRICH, 245 U.S. 440; LAYNE & BOWLER
CORP. V. WESTERN WELL WORKS, INC., 261 U.S. 387; SOUTHERN POWER CO. V.
NORTH CAROLINA PUB. SERV. CO., 263 U.S. 508; KELLER V. ADAMS-CAMPBELL
CO., 264 U.S. 314; DAVIS V. CURRIE, 266 U.S. 182; ERIE R. CO. V.
KIRKENDALL, 266 U.S. 185; SOUTHERN CALIFORNIA EDISON CO. V.
HERMINGHAUS, 275 U.S. 486; MELLON V. MCKINLEY, 275 U.S. 492; MISSOURI
K.-T.R. CO. V. TEXAS, 275 U.S. 494; ELLISON V. KOSWIG, 276 U.S. 598;
JOHNSON V. THORNBURGH, 276 U.S. 601; CARTER OIL CO. V. ELI, 277 U.S.
573; STANDARD PIPE LINE CO. V. COMMISSIONERS, 278 U.S. 558; SEABOARD
AIR LINE R. CO. V. JOHNSON, 278 U.S. 576; NEW YORK, CHICAGO & ST. L.R.
CO. V. GRANFELL, IBID.; EMPIRE GAS & FUEL CO. V. SAUNDERS, 278 U.S.
581; VIRGINIAN R. CO. V. KIRK, 278 U.S. 582; WALLACE V. MOTOR PRODUCTS
CORP., 279 U.S. 859; SUTTER V. MIDLAND VALLEY R. CO., 280 U.S. 521;
ANGLO & LONDON-PARIS NAT. BANK V. CONSOLIDATED NAT. BANK, 280 U.S. 526;
GULF, MOBILE & N.R. CO. V. WILLIAMS, IBID.; WISCONSIN ELECTRIC CO. V.
DUMORE CO., 282 U.S. 813; ADAM V. NEW YORK TRUST CO., 282 U.S. 814;
DIRECTOR OF LANDS V. VILLA-ABRILLE, 283 U.S. 785; SANCHEZ V. BORRAS,
283 U.S. 798; ELGIN, JOLIET & E.R. CO. V. CHURCHILL, 284 U.S. 589;
SNOWDEN V. RED RIVER DRAINAGE DIST., 284 U.S. 592; LANG V. UNITED
STATES, 286 U.S. 523; FRANKLIN-AMERICAN TRUST CO. V. ST. LOUIS UNION
TRUST CO., 286 U.S. 533; LOUISVILLE & NASHVILLE R. CO. V. PARKER, 287
U.S. 569; SEVIER COMMISSION CO. V. WALLOWA NAT. BANK, 287 U.S. 575;
FORT SMITH SUB. R. CO. V. KANSAS CITY SO. R. CO., 288 U.S. 587; BOYNTON
V. HUTCHINSON GAS CO., 292 U.S. 601; LYNCH V. NEW YORK, 293 U.S. 52;
HUNT V. WESTERN CASUALTY CO., 293 U.S. 530; FOX FILM CORP. V. MULLER,
294 U.S. 696; STATE AUTOMOBILE INS. ASSN. V. GLICK, 294 U.S. 697; MOOR
V. TEXAS & N.O.R. CO., 297 U.S. 101; TEXAS & N.O.R. CO. V. NEILL, 302
U.S. 645; AETNA INS. CO. V. ILLINOIS CENTRAL R. CO., 302 U.S. 652; TAX
COMMISSION V. WILBUR, 304 U.S. 544; GOODMAN V. UNITED STATES, 305 U.S.
578; GOINS V. UNITED STATES, 306 U.S. 622; MCGOLDRICK V. GULF OIL
CORP., 309 U.S. 2; UTILITIES INS. CO. V. POTTER, 312 U.S. 662; HARRIS
V. ZION'S SAVINGS BANK, 313 U.S. 541; JONES V. OPELIKA, 315 U.S. 782;
GORMAN V. WASHINGTON UNIVERSITY, 316 U.S. 98; MCCULLOUGH V. KAMMERER
CORP., 323 U.S. 327; MCCARTHY V. BRUNER, 323 U.S. 673; WHITE V. RAGEN,
324 U.S. 760; WOODS V. NIERSTHEIMER, 328 U.S. 211; PHYLE V. DUFFY, 334
U.S. 431; HEDGEBETH V. NORTH CAROLINA, 334 U.S. 806; SUPERIOR COURT V.
LILLEFLOREN, 335 U.S. 906; LOFTUS V. ILLINOIS, 337 U.S. 935; PARKER V.
LOS ANGELES, 338 U.S. 327; HAMMERSTEIN V. SUPERIOR COURT, 341 U.S. 491;
STEMBRIDGE V. GEORGIA, 343 U.S. 541; EDELMAN V. CALIFORNIA, 344 U.S.
357; BENTSEN V. BLACKWELL, 347 U.S. 925; CALIFORNIA EX REL. BROWN V.
ST. LOUIS UNION TRUST CO., 348 U.S. 932.  THIS LIST IS NOT TO BE DEEMED
COMPREHENSIVE. 

ONLY IN THE LIGHT OF ARGUMENT ON THE MERITS DID IT BECOME CLEAR IN
THESE NUMEROUS CASES THAT THE PETITIONS FOR CERTIORARI SHOULD NOT HAVE
BEEN GRANTED.  IN SOME INSTANCES AN ASSERTED CONFLICT TURNED OUT TO BE
ILLUSORY; IN OTHERS, A FEDERAL QUESTION WAS WANTING OR DECISION COULD
BE RESTED ON A NON-FEDERAL GROUND; IN A NUMBER, IT BECAME MANIFEST THAT
THE QUESTION WAS OF IMPORTANCE MERELY TO THE LITIGANTS AND DID NOT
PRESENT AN ISSUE OF IMMEDIATE PUBLIC SIGNIFICANCE. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

WE THINK THAT ONLY VERY UNUSUAL CIRCUMSTANCES CAN JUSTIFY DISMISSAL
OF CASES ON THE GROUND THAT CERTIORARI WAS IMPROVIDENTLY GRANTED.  OUR
OBJECTIONS TO SUCH DISMISSALS ARE STRONGER WHEN, AS HERE, A CASE HAS
ALREADY BEEN ARGUED AND DECIDED BY THE COURT.  WE DO NOT AGREE THAT THE
CIRCUMSTANCES RELIED ON BY THE COURT JUSTIFY THIS DISMISSAL.  WE
GRANTED CERTIORARI BECAUSE SERIOUS QUESTIONS WERE RAISED CONCERNING A
DENIAL OF THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH
AMENDMENT.  THOSE QUESTIONS REMAIN UNDECIDED.  THE COURT DISMISSES THE
CASE BECAUSE THE IOWA LEGISLATURE HAS PROVIDED THAT EVERY PERSON IN
IOWA EXCEPT ONE WHO HAS ALREADY FILED A SUIT CAN PROSECUTE CLAIMS LIKE
THIS.  APPARENTLY THIS LAW LEAVES EVERYONE IN IOWA FREE TO VINDICATE
THIS KIND OF RIGHT EXCEPT THE PETITIONER.  THIS RAISES A NEW QUESTION
OF DENIAL OF EQUAL PROTECTION OF THE LAWS EQUALLY AS GRAVE AS THOSE
WHICH PROMPTED US TO TAKE THIS CASE ORIGINALLY.  WE CANNOT AGREE THAT
THIS DISMISSAL IS JUSTIFIED MERELY BECAUSE THIS PETITIONER IS THE ONLY
ONE WHOSE RIGHTS MAY HAVE BEEN UNCONSTITUTIONALLY DENIED. 
..END :














BELL V. UNITED STATES 349 U.S. 81 


NO. 468.  ARGUED APRIL 21, 1955 - DECIDED MAY 9, 1955 - 213 F.2D 629,
REVERSED. 


PETITIONER WAS INDICTED AND PLEADED GUILTY ON TWO COUNTS FOR VIOLATION
OF THE MANN ACT, EACH COUNT REFERRING TO A DIFFERENT WOMAN.  PETITIONER
HAD TRANSPORTED THE TWO WOMEN ON THE SAME TRIP AND IN THE SAME
VEHICLE.  HELD:  PETITIONER COMMITTED BUT A SINGLE OFFENSE, AND WAS NOT
SUBJECT TO CUMULATIVE PUNISHMENT UNDER THE TWO COUNTS.  PP. 81-84. 

(A)  CONGRESS HAS NOT MADE THE SIMULTANEOUS TRANSPORTATION OF MORE
THAN ONE WOMAN IN VIOLATION OF THE MANN ACT CLEARLY LIABLE TO
CUMULATIVE PUNISHMENT FOR EACH WOMAN SO TRANSPORTED.  PP. 82-83. 

(B)  WHERE CONGRESS HAS NOT FIXED THE PUNISHMENT FOR A FEDERAL
OFFENSE CLEARLY, DOUBT WILL BE RESOLVED AGAINST TURNING A SINGLE
TRANSACTION INTO MULTIPLE OFFENSES.  PP. 83-84. 

BELL V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ONCE MORE IT BECOMES NECESSARY TO DETERMINE "WHAT CONGRESS HAS MADE
THE ALLOWABLE UNIT OF PROSECUTION," UNITED STATES V. UNIVERSAL C.I.T.
CREDIT CORP., 344 U.S. 218, 221, UNDER A STATUTE WHICH DOES NOT
EXPLICITLY GIVE THE ANSWER.  THIS RECURRING PROBLEM NOW ARISES UNDER
WHAT IS FAMILIARLY KNOWN AS THE MANN ACT.  THE RELEVANT PROVISIONS OF
THE ACT IN ITS PRESENT FORM ARE: 

"WHOEVER KNOWINGLY TRANSPORTS IN INTERSTATE OR FOREIGN COMMERCE  ...
ANY WOMAN OR GIRL FOR THE PURPOSE OF PROSTITUTION OR DEBAUCHERY, OR FOR
ANY OTHER IMMORAL PURPOSE  ...  . 

"SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE
YEARS, OR BOTH."  SEC.  2 OF THE ACT OF JUNE 25, 1910, 36 STAT. 825,
NOW 18 U.S.C. SEC. 2421. 

THE FACTS NEED NOT DETAIN US LONG.  PETITIONER PLEADED GUILTY TO
VIOLATIONS LAID IN TWO COUNTS, EACH REFERRING TO A DIFFERENT WOMAN. 
CONCEDEDLY, THE PETITIONER TRANSPORTED THE TWO WOMEN ON THE SAME TRIP
AND IN THE SAME VEHICLE.  THIS WAS THE BASIS OF HIS CLAIM THAT HE
COMMITTED ONLY A SINGLE OFFENSE AND COULD NOT BE SUBJECTED TO
CUMULATIVE PUNISHMENT UNDER THE TWO COUNTS.  THE DISTRICT COURT
REJECTED THIS CONCEPTION OF THE STATUTE AND SENTENCED THE PETITIONER TO
CONSECUTIVE TERMS OF TWO YEARS AND SIX MONTHS ON EACH OF THE TWO
COUNTS.  ON APPEAL FROM DENIAL OF A MOTION TO CORRECT THE SENTENCE, THE
COURT OF APPEALS AFFIRMED THE DISTRICT COURT.  "WHILE THE ACT OF
TRANSPORTATION WAS A SINGLE ONE," IT RULED, "THE UNLAWFUL PURPOSE MUST
OF NECESSITY HAVE BEEN SELECTIVE AND PERSONAL AS TO EACH OF THE WOMEN
INVOLVED  ...  .  WE THEREFORE BELIEVE THAT TWO SEPARATE OFFENSES WERE
COMMITTED IN THIS CASE."  213 F.2D 629, 630.  THIS DECISION WAS IN
ACCORD WITH DECISIONS OF OTHER LOWER FEDERAL COURTS, BUT A CONTRARY
HOLDING BY THE COURT OF APPEALS FOR THE TENTH CIRCUIT, IN ROBINSON V.
UNITED STATES, 143 F.2D 276, RAISED A SQUARE CONFLICT FOR SETTLEMENT BY
THIS COURT.  THIS LED US TO BRING THE CASE HERE.  348 U.S. 895. 

THE PUNISHMENT APPROPRIATE FOR THE DIVERSE FEDERAL OFFENSES IS A
MATTER FOR THE DISCRETION OF CONGRESS, SUBJECT ONLY TO CONSTITUTIONAL
LIMITATIONS, MORE PARTICULARLY THE EIGHTH AMENDMENT.  CONGRESS COULD NO
DOUBT MAKE THE SIMULTANEOUS TRANSPORTATION OF MORE THAN ONE WOMAN IN
VIOLATION OF THE MANN ACT LIABLE TO CUMULATIVE PUNISHMENT FOR EACH
WOMAN SO TRANSPORTED.  THE QUESTION IS:  DID IT DO SO?  IT HAS NOT DONE
SO IN WORDS IN THE PROVISIONS DEFINING THE CRIME AND FIXING ITS
PUNISHMENT.  NOR IS GUIDING LIGHT AFFORDED BY THE STATUTE IN ITS
ENTIRETY OR BY ANY CONTROLLING GLOSS.  THE CONSTITUTIONAL BASIS OF THE
STATUTE IS THE WITHDRAWAL OF "THE FACILITY OF INTERSTATE
TRANSPORTATION," HOKE V. UNITED STATES, 227 U.S. 308, 322, THOUGH, TO
BE SURE, THE POWER WAS EXERCISED IN AID OF SOCIAL MORALITY.  AGAIN, IT
WILL NOT PROMOTE GUIDING ANALYSIS TO INDULGE IN WHAT MIGHT BE CALLED
THE COLOR-MATCHING OF PRIOR DECISIONS CONCERNED WITH "THE UNIT OF
PROSECUTION" IN ORDER TO DETERMINE HOW NEAR TO, OR HOW FAR FROM, THE
PROBLEM UNDER THIS STATUTE THE ANSWERS ARE THAT HAVE BEEN GIVEN UNDER
OTHER STATUTES. 

IT IS NOT TO BE DENIED THAT ARGUMENTATIVE SKILL, AS WAS SHOWN AT THE
BAR, COULD PERSUASIVELY AND NOT UNREASONABLY REACH EITHER OF THE
CONFLICTING CONSTRUCTIONS.  ABOUT ONLY ONE ASPECT OF THE PROBLEM CAN
ONE BE DOGMATIC.  WHEN CONGRESS HAS THE WILL IT HAS NO DIFFICULTY IN
EXPRESSING IT - WHEN IT HAS THE WILL, THAT IS, OF DEFINING WHAT IT
DESIRES TO MAKE THE UNIT OF PROSECUTION AND, MORE PARTICULARLY, TO MAKE
EACH STICK IN A FAGGOT A SINGLE CRIMINAL UNIT.  WHEN CONGRESS LEAVES TO
THE JUDICIARY THE TASK OF IMPUTING TO CONGRESS AN UNDECLARED WILL, THE
AMBIGUITY SHOULD BE RESOLVED IN FAVOR OF LENITY.  AND THIS NOT OUT OF
ANY SENTIMENTAL CONSIDERATION, OR FOR WANT OF SYMPATHY WITH THE PURPOSE
OF CONGRESS IN PROSCRIBING EVIL OR ANTI-SOCIAL CONDUCT.  IT MAY FAIRLY
BE SAID TO BE A PRESUPPOSITION OF OUR LAW TO RESOLVE DOUBTS IN THE
ENFORCEMENT OF A PENAL CODE AGAINST THE IMPOSITION OF A HARSHER
PUNISHMENT.  THIS IN NO WISE IMPLIES THAT LANGUAGE USED IN CRIMINAL
STATUTES SHOULD NOT BE READ WITH THE SAVING GRACE OF COMMON SENSE WITH
WHICH OTHER ENACTMENTS, NOT CAST IN TECHNICAL LANGUAGE, ARE TO BE
READ.  NOR DOES IT ASSUME THAT OFFENDERS AGAINST THE LAW CAREFULLY READ
THE PENAL CODE BEFORE THEY EMBARK ON CRIME.  IT MERELY MEANS THAT IF
CONGRESS DOES NOT FIX THE PUNISHMENT FOR A FEDERAL OFFENSE CLEARLY AND
WITHOUT AMBIGUITY, DOUBT WILL BE RESOLVED AGAINST TURNING A SINGLE
TRANSACTION INTO MULTIPLE OFFENSES, WHEN WE HAVE NO MORE TO GO ON THAN
THE PRESENT CASE FURNISHES.  REVERSED. 

MR. JUSTICE MINTON, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE REED
JOIN, DISSENTING. 

THE STATUTE DOES NOT SEEM AMBIGUOUS TO ME.  CONGRESS MADE IT CLEAR
ENOUGH FOR ME TO UNDERSTAND THAT IT WAS TRYING TO HELP THE STATES AS
FAR AS IT COULD TO STAMP OUT THE DEGRADATION AND DEBAUCHERY OF WOMEN BY
PUNISHING THOSE WHO ENGAGED IN USING THEM FOR PROSTITUTION.  THE ONLY
WAY CONGRESS COULD DO THAT WAS TO MAKE IT UNLAWFUL TO USE THE CHANNELS
OF COMMERCE TO TRANSPORT THEM.  THE STATUTE PROVIDES THAT: 

"WHOEVER KNOWINGLY TRANSPORTS IN INTERSTATE OR FOREIGN COMMERCE  ...
ANY WOMAN OR GIRL FOR THE PURPOSE OF PROSTITUTION  ...  . 

"SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE
YEARS, OR BOTH."  36 STAT. 825, 18 U.S.C. SEC. 2421. 

TO ME THE STATUTE MEANS THAT TO TRANSPORT ONE OR MORE WOMEN OR GIRLS
IN COMMERCE CONSTITUTES A SEPARATE OFFENSE AS TO EACH ONE.  CONGRESS
HAD AS ITS PURPOSE THE PROTECTION OF THE INDIVIDUAL WOMAN OR GIRL FROM
EXPLOITATION, AND THE TRANSPORTATION OF EACH FEMALE WAS TO BE
PUNISHED.  IT WAS NOT CONCERNED WITH PROTECTION OF THE MEANS OF
TRANSPORTATION.  SURELY IT DID NOT INTEND TO MAKE IT EASIER IF ONE
TRANSPORTED FEMALES BY THE BUS LOAD.  A CONSTRUCTION OF THE STATUTE
THAT REACHES THAT RESULT DOES VIOLENCE TO ITS PLAIN WORDING.  THAT IS
WHAT THE DISTRICT COURT THOUGHT, THAT IS WHAT THE COURT OF APPEALS
THOUGHT, AND WITH THAT I AGREE, AND WOULD AFFIRM. 
..END :












SHAUGHNESSY V. PEDREIRO 349 U.S. 48 


NO. 374.  ARGUED MARCH 31, 1955 - DECIDED APRIL 25, 1955 - 213 F.2D 768,
AFFIRMED. 


1.  UNDER SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT, AN ALIEN WHOSE
DEPORTATION HAS BEEN ORDERED ADMINISTRATIVELY UNDER THE IMMIGRATION AND
NATIONALITY ACT OF 1952 MAY OBTAIN A JUDICIAL REVIEW OF SUCH ORDER BY
AN ACTION IN A FEDERAL DISTRICT COURT FOR A DECLARATORY JUDGMENT AND
INJUNCTIVE RELIEF.  PP. 49-52. 

(A)  HEIKKILA V. BARBER, 345 U.S. 229, DISTINGUISHED.  P. 50. 

(B)  THE PROVISION OF SEC. 242(B) OF THE IMMIGRATION AND NATIONALITY
ACT OF 1952 WHICH MAKES DEPORTATION ORDERS OF THE ATTORNEY GENERAL
"FINAL" DOES NOT "EXPRESSLY" SUPERSEDE OR MODIFY THE PROVISIONS OF THE
ADMINISTRATIVE PROCEDURE ACT, WITHIN THE MEANING OF SEC.  12 THEREOF,
AND DOES NOT MAKE SEC. 10 OF THE LATTER ACT INAPPLICABLE TO DEPORTATION
PROCEEDINGS.  PP. 50-52. 

(C)  A HABEAS CORPUS PROCEEDING IS NOT THE SOLE MEANS OF OBTAINING
JUDICIAL REVIEW OF A DEPORTATION ORDER ISSUED UNDER THE 1952 ACT.  AN
ACTION IN A FEDERAL DISTRICT COURT TO DECLARE THE ORDER VOID AND ENJOIN
ITS EXECUTION IS AN APPROPRIATE REMEDY.  P. 52. 

2.  IN AN ACTION IN A FEDERAL DISTRICT COURT AGAINST A DISTRICT
DIRECTOR OF IMMIGRATION AND NATURALIZATION TO REVIEW A DEPORTATION
ORDER, DECLARE IT VOID AND ENJOIN ITS EXECUTION, THE COMMISSIONER OF
IMMIGRATION AND NATURALIZATION IS NOT AN INDISPENSABLE PARTY.  PP.  52
54. 

SHAUGHNESSY, DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION, V.
PEDREIRO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AFTER ADMINISTRATIVE HEARINGS, THE RESPONDENT PEDREIRO, AN ALIEN, WAS
ORDERED DEPORTED UNDER THE IMMIGRATION AND NATIONALITY ACT OF 1952. 
(FN1)  HE PETITIONED THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK TO REVIEW THE DEPORTATION ORDER, DECLARE IT VOID AND ISSUE A
TEMPORARY INJUNCTION RESTRAINING ITS EXECUTION PENDING FINAL DISTRICT
COURT ACTION.  IN PART HE CONTENDED THAT THERE WAS NO LEGAL EVIDENCE TO
SUPPORT THE ORDER AND THAT IN VIOLATION OF DUE PROCESS HE HAD BEEN
COMPELLED TO INCRIMINATE HIMSELF IN THE HEARINGS.  RELIEF WAS SOUGHT
ONLY AGAINST THE DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION
FOR THE DISTRICT OF NEW YORK.  THE DISTRICT COURT DISMISSED THE
PETITION ON THE GROUND THAT EITHER THE ATTORNEY GENERAL OR THE
COMMISSIONER OF IMMIGRATION AND NATURALIZATION WAS AN INDISPENSABLE
PARTY AND SHOULD HAVE BEEN JOINED.  THIS HOLDING MADE IT UNNECESSARY
FOR THE DISTRICT COURT TO PASS ON ANOTHER GROUND URGED FOR DISMISSAL,
THAT THE IMMIGRATION AND NATIONALITY ACT OF 1952 PRECLUDED JUDICIAL
REVIEW OF DEPORTATION ORDERS BY ANY METHOD EXCEPT HABEAS CORPUS.  THE
COURT OF APPEALS REVERSED, REJECTING BOTH CONTENTIONS OF THE
GOVERNMENT.  213 F.2D 768.  IN DOING SO IT FOLLOWED THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT WHICH HAD HELD THAT
DEPORTATION ORDERS ENTERED UNDER THE 1952 IMMIGRATION ACT CAN BE
JUDICIALLY REVIEWED IN ACTIONS FOR DECLARATORY RELIEF UNDER SEC. 10 OF
THE ADMINISTRATIVE PROCEDURE ACT.  (FN2)  RUBINSTEIN V. BROWNELL, 92
U.S. APP.  D.C. 328, 206 F.2D 449, AFFIRMED BY AN EQUALLY DIVIDED
COURT, 346 U.S. 929.  BUT THE COURT OF APPEALS FOR THE FIRST CIRCUIT
HAS HELD THAT HABEAS CORPUS IS THE ONLY WAY SUCH DEPORTATION ORDERS CAN
BE ATTACKED.  BATISTA V. NICOLLS, 213 F.2D 20.  BECAUSE OF THIS
CONFLICT AMONG THE CIRCUITS AND THE CONTENTION THAT ALLOWING JUDICIAL
REVIEW OF DEPORTATION ORDERS OTHER THAN BY HABEAS CORPUS CONFLICTS WITH
HEIKKILA V. BARBER, 345 U.S. 229, WE GRANTED CERTIORARI, 348 U.S. 882. 

THE HEIKKILA CASE, UNLIKE THIS ONE, DEALT WITH A DEPORTATION ORDER
UNDER THE IMMIGRATION ACT OF 1917.  THAT ACT PROVIDED THAT DEPORTATION
ORDERS OF THE ATTORNEY GENERAL SHOULD BE "FINAL" (FN3) AND HAD LONG
BEEN INTERPRETED AS PRECLUDING ANY TYPE OF JUDICIAL REVIEW EXCEPT BY
HABEAS CORPUS.  HEIKKILA CONTENDED THAT THIS NARROW RIGHT OF REVIEW OF
DEPORTATION ORDERS UNDER THE 1917 ACT HAD BEEN BROADENED BY SEC. 10 OF
THE 1946 ADMINISTRATIVE PROCEDURE ACT WHICH AUTHORIZES REVIEW OF AGENCY
ACTION BY ANY APPROPRIATE METHOD "EXCEPT SO FAR AS (1) STATUTES
PRECLUDE JUDICIAL REVIEW  ...  ."  BECAUSE THIS COURT HAD CONSTRUED THE
WORD "FINAL" IN THE 1917 ACT AS PRECLUDING ANY REVIEW EXCEPT BY HABEAS
CORPUS, IT HELD THAT THE ADMINISTRATIVE PROCEDURE ACT GAVE NO
ADDITIONAL REMEDY SINCE SEC. 10 EXCEPTED STATUTES THAT PRECLUDED
JUDICIAL REVIEW.  THE COURT CAREFULLY POINTED OUT, HOWEVER, THAT IT DID
NOT CONSIDER WHETHER THE SAME RESULT SHOULD BE REACHED UNDER THE 1952
IMMIGRATION AND NATIONALITY ACT "WHICH TOOK EFFECT AFTER HEIKKILA'S
COMPLAINT WAS FILED."  (FN4)  CONSEQUENTLY HEIKKILA DOES NOT CONTROL
THIS CASE AND WE MUST CONSIDER THE EFFECT OF THE 1952 IMMIGRATION AND
NATIONALITY ACT ON THE RIGHT TO JUDICIAL REVIEW UNDER THE
ADMINISTRATIVE PROCEDURE ACT. 

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."  AND SEC. 12 OF
THE ACT PROVIDES THAT "NO SUBSEQUENT LEGISLATION SHALL BE HELD TO
SUPERSEDE OR MODIFY THE PROVISIONS OF THIS ACT EXCEPT TO THE EXTENT
THAT SUCH LEGISLATION SHALL DO SO EXPRESSLY."  IN THE SUBSEQUENT 1952
IMMIGRATION AND NATIONALITY ACT THERE IS NO LANGUAGE WHICH "EXPRESSLY"
SUPERSEDES OR MODIFIES THE EXPANDED RIGHT OF REVIEW GRANTED BY SEC. 10
OF THE ADMINISTRATIVE PROCEDURE ACT.  BUT THE 1952 IMMIGRATION ACT DOES
PROVIDE, AS DID THE 1917 ACT, THAT DEPORTATION ORDERS OF THE ATTORNEY
GENERAL SHALL BE "FINAL."  THE GOVERNMENT CONTENDS THAT WE SHOULD READ
THIS AS EXPRESSING A CONGRESSIONAL PURPOSE TO GIVE THE WORD "FINAL" IN
THE 1952 ACT PRECISELY THE SAME MEANING HEIKKILA GAVE "FINAL" IN THE
1917 ACT AND THEREBY CONTINUE TO DEPRIVE DEPORTEES OF ALL RIGHT OF
JUDICIAL REVIEW EXCEPT BY HABEAS CORPUS.  WE CANNOT ACCEPT THIS
CONTENTION. 

SUCH A RESTRICTIVE CONSTRUCTION OF THE FINALITY PROVISION OF THE
PRESENT IMMIGRATION ACT WOULD RUN COUNTER TO SEC. 10 AND SEC. 12 OF THE
ADMINISTRATIVE PROCEDURE ACT.  THEIR PURPOSE WAS TO REMOVE OBSTACLES TO
JUDICIAL REVIEW OF AGENCY ACTION UNDER SUBSEQUENTLY ENACTED STATUTES
LIKE THE 1952 IMMIGRATION ACT.  AND AS THE COURT SAID IN THE HEIKKILA
CASE, THE PROCEDURE ACT IS TO BE GIVEN A "HOSPITABLE" INTERPRETATION. 
IN THAT CASE THE COURT ALSO REFERRED TO AMBIGUITY IN THE PROVISION
MAKING DEPORTATION ORDERS OF THE ATTORNEY GENERAL "FINAL."  IT IS MORE
IN HARMONY WITH THE GENEROUS REVIEW PROVISIONS OF THE ADMINISTRATIVE
PROCEDURE ACT TO CONSTRUE THE AMBIGUOUS WORD "FINAL" IN THE 1952
IMMIGRATION ACT AS REFERRING TO FINALITY IN ADMINISTRATIVE PROCEDURE
RATHER THAN AS CUTTING OFF THE RIGHT OF JUDICIAL REVIEW IN WHOLE OR IN
PART.  AND IT WOULD CERTAINLY NOT BE IN KEEPING WITH EITHER OF THESE
ACTS TO REQUIRE A PERSON ORDERED DEPORTED TO GO TO JAIL IN ORDER TO
OBTAIN REVIEW BY A COURT. 

THE LEGISLATIVE HISTORY OF BOTH THE ADMINISTRATIVE PROCEDURE ACT AND
THE 1952 IMMIGRATION ACT SUPPORTS RESPONDENT'S RIGHT TO FULL JUDICIAL
REVIEW OF THIS DEPORTATION ORDER.  THE SPONSORS OF THE ADMINISTRATIVE
PROCEDURE ACT WERE REPRESENTATIVE WALTER IN THE HOUSE AND SENATOR
MCCARRAN IN THE SENATE.  THEY WERE ALSO THE SPONSORS OF THE 1952
IMMIGRATION ACT.  WHILE THE LATTER ACT WAS UNDER CONSIDERATION IN THE
HOUSE, AN AMENDMENT WAS PROPOSED WHICH PROVIDED FOR LIBERAL JUDICIAL
REVIEW OF DEPORTATION ORDERS.  REPRESENTATIVE WALTER ASSURED THE HOUSE
THAT THE PROPOSED AMENDMENT WAS NOT NEEDED.  HE SAID:  "NOW, WE COME TO
THIS QUESTION OF THE FINALITY OF THE DECISION OF THE ATTORNEY GENERAL. 
THAT LANGUAGE MEANS THAT IT IS A FINAL DECISION AS FAR AS THE
ADMINISTRATIVE BRANCH OF THE GOVERNMENT IS CONCERNED, BUT IT IS NOT
FINAL IN THAT IT IS NOT THE LAST REMEDY THAT THE ALIEN HAS.  SECTION 10
OF THE ADMINISTRATIVE PROCEDURES ACT IS APPLICABLE."  (FN5)  WITH
REFERENCE TO THE SAME PROBLEM SENATOR MCCARRAN ASSURED THE SENATE THAT
"THE ADMINISTRATIVE PROCEDURE ACT IS MADE APPLICABLE TO THE BILL." 
(FN6)  IT IS ARGUED THAT THESE ASSURANCES BY THE CHAIRMEN OF THE
COMMITTEES IN CHARGE OF THE BILLS WERE BUT ISOLATED STATEMENTS AND THAT
OTHER LEGISLATIVE HISTORY IS SUFFICIENT TO REFUTE THEM.  WE CANNOT
AGREE.  OUR HOLDING IS THAT THERE IS A RIGHT OF JUDICIAL REVIEW OF
DEPORTATION ORDERS OTHER THAN BY HABEAS CORPUS AND THAT THE REMEDY
SOUGHT HERE IS AN APPROPRIATE ONE. 

WE ALSO REJECT THE GOVERNMENT'S CONTENTION THAT THE COMMISSIONER OF
IMMIGRATION AND NATURALIZATION IS AN INDISPENSABLE PARTY TO AN ACTION
FOR DECLARATORY RELIEF OF THIS KIND.  (FN7)  DISTRICT DIRECTORS ARE
AUTHORIZED BY REGULATION TO ISSUE WARRANTS OF DEPORTATION, TO DESIGNATE
THE COUNTRY TO WHICH AN ALIEN SHALL BE DEPORTED, AND TO DETERMINE WHEN
HIS MENTAL OR PHYSICAL CONDITION REQUIRES THE EMPLOYMENT OF A PERSON TO
ACCOMPANY HIM.  THE REGULATIONS PURPORT TO MAKE THESE DECISIONS OF THE
DISTRICT DIRECTOR FINAL.  (FN8)  IT SEEMS HIGHLY APPROPRIATE,
THEREFORE, THAT THE DISTRICT DIRECTOR CHARGED WITH ENFORCEMENT OF A
DEPORTATION ORDER SHOULD REPRESENT THE GOVERNMENT'S INTEREST. 
OTHERWISE IN ORDER TO TRY HIS CASE AN ALIEN MIGHT BE COMPELLED TO GO TO
THE DISTRICT OF COLUMBIA TO OBTAIN JURISDICTION OVER THE COMMISSIONER. 
TO IMPOSE THIS BURDEN ON AN ALIEN ABOUT TO BE DEPORTED WOULD BE
COMPLETELY INCONSISTENT WITH THE BASIC POLICY OF THE ADMINISTRATIVE
PROCEDURE ACT TO FACILITATE COURT REVIEW OF SUCH ADMINISTRATIVE
ACTION.  WE KNOW OF NO NECESSITY FOR SUCH A HARSH RULE.  UNDOUBTEDLY
THE GOVERNMENT'S DEFENSE CAN BE ADEQUATELY PRESENTED BY THE DISTRICT
DIRECTOR WHO IS UNDER THE SUPERVISION OF THE COMMISSIONER. 

IT IS ARGUED, HOWEVER, THAT THE COMMISSIONER SHOULD BE AN
INDISPENSABLE PARTY BECAUSE A JUDGMENT AGAINST A DISTRICT DIRECTOR
ALONE WOULD NOT BE FINAL AND BINDING IN OTHER IMMIGRATION DISTRICTS. 
BUT WE NEED NOT DECIDE THE EFFECT OF SUCH A JUDGMENT.  WE CANNOT ASSUME
THAT A DECISION ON THE MERITS IN A COURT OF APPEALS ON A QUESTION OF
THIS KIND, SUBJECT TO REVIEW BY THIS COURT, WOULD BE LIGHTLY
DISREGARDED BY THE IMMIGRATION AUTHORITIES.  NOR IS IT TO BE ASSUMED
THAT A SECOND EFFORT TO HAVE THE SAME ISSUE DECIDED IN A HABEAS CORPUS
PROCEEDING WOULD DO ANY SERIOUS HARM TO THE GOVERNMENT.  IN HABEAS
CORPUS PROCEEDINGS DISTRICT COURTS WOULD HAVE THE DUTY TO CONSIDER
PREVIOUS COURT DECISIONS ON THE SAME MATTER.  AND EVEN THOUGH IN
EXTRAORDINARY CIRCUMSTANCES NEW MATTERS NOT PREVIOUSLY ADJUDICATED MAY
ARISE IN HABEAS CORPUS PROCEEDINGS, THIS IS NO ADEQUATE REASON FOR
SUBJECTING AN ALIEN TO THE GREAT BURDEN OF HAVING TO GO WITH HIS
WITNESSES TO THE DISTRICT OF COLUMBIA, WHICH MAY BE FAR DISTANT FROM
HIS HOME, IN ORDER TO CONTEST HIS DEPORTATION.  OUR FORMER CASES HAVE
ESTABLISHED A POLICY UNDER WHICH INDISPENSABILITY OF PARTIES IS
DETERMINED ON PRACTICAL CONSIDERATIONS.  SEE, E.G., WILLIAMS V.
FANNING, 332 U.S. 490.  THAT POLICY FOLLOWED HERE CAUSES US TO CONCLUDE
THAT THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION IS NOT AN
INDISPENSABLE PARTY.  AFFIRMED. 

FN1  66 STAT. 163, 8 U.S.C. SEC. 1101 ET SEQ. 

FN2  60 STAT. 243, 5 U.S.C. SEC. 1009. 

FN3  39 STAT. 889, AS AMENDED, 54 STAT. 1238. 

FN4  HEIKKILA V. BARBER, 345 U.S. 229, 232, NOTE 4. 

FN5  98 CONG. REC. 4416. 

FN6  98 CONG. REC. 5778. 

FN7  COMPARE PAOLO V. GARFINKEL, 200 F.2D 280; RODRIGUEZ V. LANDON,
212 F.2D 508. 

FN8  8 CFR SECS. 243.1, 243.2. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE BURTON
JOIN, DISSENTING. 

IN HEIKKILA V. BARBER, 345 U.S. 229, THIS COURT HELD THAT SEC. 19(A)
OF THE IMMIGRATION ACT OF 1917, MAKING DECISIONS OF THE ATTORNEY
GENERAL "FINAL," WAS A STATUTE WHICH PRECLUDED JUDICIAL REVIEW WITHIN
THE MEANING OF THE FIRST EXCEPTION TO SEC. 10 OF THE ADMINISTRATIVE
PROCEDURE ACT.  NOW, SLIGHTLY MORE THAN TWO YEARS LATER, THE COURT
HOLDS THAT JUDICIAL REVIEW OF DEPORTATION ORDERS IS AVAILABLE UNDER
SEC. 10 EVEN THOUGH SEC. 242(B) OF THE 1952 ACT IS A RE-ENACTMENT,
ALMOST VERBATIM, OF THE "FINAL" CLAUSE OF THE 1917 ACT.  THE DECISION
IS BASED ON THREE CONSIDERATIONS.  FIRST, SEC. 12 OF THE ADMINISTRATIVE
PROCEDURE ACT PROVIDES THAT, "NO SUBSEQUENT LEGISLATION SHALL BE HELD
TO SUPERSEDE OR MODIFY THE PROVISIONS OF THIS ACT EXCEPT TO THE EXTENT
THAT SUCH LEGISLATION SHALL DO SO EXPRESSLY," AND, IN THE OPINION OF
THE MAJORITY, THERE IS NO LANGUAGE IN THE 1952 ACT WHICH "EXPRESSLY"
ESTABLISHES A MORE LIMITED REVIEW.  SECOND, IT IS BELIEVED MORE
CONSISTENT WITH THE LIBERAL REVIEW PROVISIONS OF THE ADMINISTRATIVE
PROCEDURE ACT TO CONSTRUE "FINAL" AS REFERRING TO FINALITY IN THE
ADMINISTRATIVE PROCESS.  AND THIRD, ISOLATED STATEMENTS IN THE
CONGRESSIONAL DEBATES INDICATE THAT CONGRESS ACTUALLY INTENDED TO
PERMIT REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT. 

IT, APPLIES ONLY WHERE SUBSEQUENTLY ENACTED LEGISLATION, IN THE WORDS
OF THE COURT, "SUPERSEDES OR MODIFIES THE EXPANDED RIGHT OF REVIEW
GRANTED BY SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT," AND THIS COURT
HELD IN THE HEIKKILA CASE THAT THE RIGHTS OF ALIENS SUBJECT TO
DEPORTATION WERE NOT ENLARGED BY THE ADMINISTRATIVE PROCEDURE ACT. 
MOREOVER, NOTWITHSTANDING SIGNIFICANT SUBSTANTIVE CHANGES IN THE
IMMIGRATION LAWS IN THE 1952 ACT, I HESITATE TO CONSIDER THE RE
ENACTMENT OF A PROVISION, WITH MINOR CHANGES IN LANGUAGE, "SUBSEQUENTLY
ENACTED LEGISLATION."  THE ISSUE THEN IS MUCH LIKE THE ONE THE COURT
FACED IN HEIKKILA:  WHETHER, IN THE CONTEXT OF THE LIBERAL REVIEW
PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, CONGRESS INTENDED, BY
SEC. 242(B), TO PRECLUDE APPLICATION OF SEC. 10 OF THE ADMINISTRATIVE
PROCEDURE ACT.  AS THIS COURT POINTED OUT IN HEIKKILA, THE WORD
"FINAL," THOUGH AMBIGUOUS IN OTHER CONTEXTS, AS USED IN IMMIGRATION
LEGISLATION SINCE THE IMMIGRATION ACT OF 1891, HAS PRECLUDED JUDICIAL
REVIEW EXCEPT BY HABEAS CORPUS.  IN VIEW OF THIS LONG HISTORY AND THE
RE-ENACTMENT OF SEC. 242 WITH ONLY MINOR TEXTUAL CHANGES, I HESITATE TO
IMPUTE TO CONGRESS AN INTENTION TO CHANGE THE METHOD OF REVIEW ABSENT A
CLEAR SHOWING.  THE COURT FOUND IN EXAMINING THE LEGISLATIVE HISTORY
THAT REPRESENTATIVE WALTER, ONE OF THE SPONSORS OF THE 1952 ACT AS WELL
AS OF THE ADMINISTRATIVE PROCEDURE ACT, BELIEVED THAT SEC. 10 OF THE
ADMINISTRATIVE PROCEDURE ACT APPLIED TO DEPORTATION ORDERS.  THE
STATEMENT BY SENATOR MCCARRAN, HOWEVER, THAT "THE ADMINISTRATIVE
PROCEDURE ACT IS MADE APPLICABLE TO THE BILL," IN CONTEXT, MAY MERELY
REFER TO THE ADMINISTRATIVE PROCEDURES ASPECT OF AN AMENDMENT PROPOSED
BY SENATOR MOODY.  98 CONG. REC. 5778, 5779.  IN ANY EVENT, THE
STATEMENTS OF CONGRESSMAN WALTER AND SENATOR MCCARRAN, IN THE COURSE OF
DEBATE ON THE FLOOR, ARE LESS PERSUASIVE THAN THE MORE CAREFULLY
PREPARED AND AUTHORITATIVE COMMITTEE REPORT, AND THE REPORT OF THE
SENATE COMMITTEE IN CHARGE OF THE BILL WOULD SEEM TO INDICATE THAT NO
CHANGE IN THE LAW WAS INTENDED.    THE IMMIGRATION AND NATIONALITY ACT
OF 1952 WAS PRECEDED BY EXTENSIVE STUDIES OF THE STRUCTURE AND
OPERATION OF THE IMMIGRATION LAW.  THESE STUDIES CULMINATED IN A REPORT
BY THE SENATE COMMITTEE ON THE JUDICIARY ENTITLED, THE IMMIGRATION AND
NATURALIZATION SYSTEMS OF THE UNITED STATES, S. REP. NO. 1515, 81ST
CONG., 2D SESS.  IT CONTAINS THE FOLLOWING STATEMENT, AT PAGE 629:

"JUDICIAL REVIEW. 

"ONCE THE ORDER AND WARRANT OF DEPORTATION ARE ISSUED, THE
ADMINISTRATIVE PROCESS IS COMPLETE.  UNDER THE FIFTH AMENDMENT TO THE
CONSTITUTION, THE 'DUE PROCESS' PROVISION, THE ALIEN MAY, HOWEVER,
PETITION FOR A WRIT OF HABEAS CORPUS.  IN A HABEAS CORPUS PROCEEDING,
BASED ON A DEPORTATION CASE, THE COURT DETERMINES WHETHER OR NOT THERE
HAS BEEN A FAIR HEARING, WHETHER OR NOT THE LAW HAS BEEN INTERPRETED
CORRECTLY, AND WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT
THE ORDER OF DEPORTATION.  HABEAS CORPUS IS THE PROPER REMEDY TO
DETERMINE THE LEGALITY OF THE DETENTION OF AN ALIEN IN THE CUSTODY OF
THE IMMIGRATION AND NATURALIZATION SERVICE.  THE DISMISSAL OF AN
APPLICATION FOR A WRIT OF HABEAS CORPUS IS NOT A BAR TO THE FILING OF
ANOTHER APPLICATION BEFORE ANOTHER JUDGE." 

ALTHOUGH THIS REPORT WAS DATED APRIL 1950, IT SERVES TO CLARIFY ANY
AMBIGUITY IN THE STATEMENT IN THE SENATE REPORT ACCOMPANYING THE BILL
IN FINAL FORM THAT JUDICIAL REVIEW IN IMMIGRATION CASES WAS NOT
EXPANDED "BEYOND THAT UNDER EXISTING LAW."  S. REP. NO. 1137, 82D
CONG., 2D SESS. 28.  THE COMMITTEE, IN USING THE PHRASE "EXISTING LAW,"
PARTICULARLY IN LIGHT OF THE LONG HISTORY OF EXCLUSIVE HABEAS CORPUS
REVIEW, WAS NECESSARILY REFERRING TO THE LAW AS UNDERSTOOD AND
EXPRESSED IN ITS PRIOR REPORT.  MOREOVER, THE REPORT ALSO STATES, AT
PAGE 30, THAT "THE BILL DECLARES THAT THE PRESCRIBED DEPORTATION
PROCEEDINGS SHALL BE THE SOLE AND EXCLUSIVE PROCEDURE FOR DETERMINING
THE DEPORTABILITY OF ANY ALIEN, NOTWITHSTANDING THE PROVISIONS OF ANY
OTHER LAW."  THE LEGISLATIVE HISTORY, THEREFORE, WOULD SEEM TO MAKE IT
UNMISTAKABLY CLEAR THAT CONGRESS, AWARE THAT THE WORD "FINAL" AS USED
IN IMMIGRATION LEGISLATION WAS NOT AMBIGUOUS, INTENDED TO PRESERVE
HABEAS CORPUS AS THE ONLY ESCAPE FROM A DEPORTATION ORDER.  IT WAS
ERROR TO GIVE RELIEF UNDER THE ADMINISTRATIVE PROCEDURE ACT. 
..END :



















REGAN V. NEW YORK 349 U.S. 58 


NO. 54.  ARGUED NOVEMBER 18, 1954 - DECIDED APRIL 25, 1955 - 306 N.Y.
747, 117 N.E.2D 921, AFFIRMED. 


A NEW YORK STATUTE CONFERS IMMUNITY FROM PROSECUTION FOR ANY CRIMINAL
ACTIVITY DISCLOSED BEFORE A GRAND JURY IN TESTIMONY RELATING TO
BRIBERY.  THE NEW YORK CITY CHARTER PROVIDES THAT ANY CITY EMPLOYEE WHO
REFUSES TO SIGN A WAIVER OF HIS IMMUNITY AGAINST SUBSEQUENT PROSECUTION
UPON ANY MATTER OF AN OFFICIAL NATURE ABOUT WHICH HE IS ASKED TO
TESTIFY SHALL LOSE HIS JOB AND BE DISQUALIFIED FROM FUTURE EMPLOYMENT
WITH THE CITY.  A MEMBER OF THE NEW YORK CITY POLICE DEPARTMENT WAS
CALLED TO TESTIFY BEFORE A GRAND JURY AND HE SIGNED A WAIVER OF
IMMUNITY AGAINST PROSECUTION.  TWENTY-ONE MONTHS AFTER HIS SEPARATION
FROM THE POLICE DEPARTMENT HE WAS AGAIN BEFORE THE GRAND JURY AND WAS
ASKED WHETHER HE HAD ACCEPTED ANY BRIBES FROM BOOKMAKERS OR GAMBLERS
WHILE HE WAS IN THE POLICE DEPARTMENT.  HE REFUSED TO ANSWER ON THE
GROUND THAT HIS ANSWER MIGHT TEND TO INCRIMINATE HIM.  HE WAS THEREUPON
CONVICTED OF CONTEMPT AND SENTENCED TO IMPRISONMENT.  HELD:  HE WAS NOT
DEPRIVED OF ANY RIGHTS UNDER THE FEDERAL CONSTITUTION.  PP. 59-64. 

(A)  THE IMMUNITY STATUTE REMOVED ANY JUSTIFICATION THAT HE MAY HAVE
HAD FOR NOT TESTIFYING.  THE VALIDITY OR INVALIDITY OF THE WAIVER IS A
MATTER OF NO CONSEQUENCE.  P. 62. 

(B)  IF THE WAIVER IS VALID, HIS SITUATION IS SIMPLY THAT OF ONE WHO
VOLUNTARILY CHOOSES TO WAIVE AN IMMUNITY PROVIDED BY STATUTE.  PP. 62
63. 

(C)  IF THE WAIVER IS INVALID, THE STATUTORY IMMUNITY FROM
PROSECUTION PERSISTS AND HIS TESTIMONY COULD NOT POSSIBLY BE SELF
INCRIMINATORY.  PP. 63-64. 

(D)  HIS REFUSAL TO TESTIFY WAS NOT JUSTIFIED BY THE UNCERTAINTY AS
TO WHETHER OR NOT HE COULD BE PROSECUTED FOR CRIMINAL ACTIVITY WHICH
MIGHT BE REVEALED IN HIS TESTIMONY.  P. 64. 

REGAN V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER REFUSED TO TESTIFY BEFORE A NEW YORK GRAND JURY WHICH WAS
INVESTIGATING THE ALLEGED ASSOCIATION OF CITY POLICEMEN WITH CRIMINALS,
RACKETEERS, AND GAMBLERS IN KINGS COUNTY.  HE WAS CONVICTED OF CRIMINAL
CONTEMPT AND SENTENCED TO ONE YEAR'S IMPRISONMENT.  WE GRANTED
CERTIORARI, 347 U.S. 1010, TO DETERMINE WHETHER, UNDER THE
CIRCUMSTANCES HERE PRESENTED, PETITIONER WAS DEPRIVED OF HIS LIBERTY
WITHOUT DUE PROCESS OF LAW IN BEING PUNISHED FOR HIS REFUSAL TO
TESTIFY.  CF. ADAMSON V. CALIFORNIA, 332 U.S. 46, 54. 

THE FOLLOWING NEW YORK CONSTITUTIONAL AND STATUTORY PROVISIONS ARE
ESSENTIAL TO AN UNDERSTANDING OF THE CASE.  ARTICLE I, SEC. 6, OF THE
CONSTITUTION OF THE STATE OF NEW YORK PROVIDES, IN PART, THAT NO PERSON
SHALL "BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF."  (FN1) SECTION 381 OF THE NEW YORK PENAL LAW, AS IT EXISTED
AT THE TIME OF THIS CASE, PROVIDED THAT TESTIMONY RELATING TO BRIBERY
COULD NOT BE WITHHELD ON THE GROUND OF SELF-INCRIMINATION, BUT
CONFERRED IMMUNITY FROM PROSECUTION FOR ANY CRIMINAL ACTIVITY REVEALED
IN SUCH TESTIMONY.  (FN2) SECTION 903 OF THE CHARTER OF THE CITY OF NEW
YORK PROVIDES THAT ANY CITY EMPLOYEE WHO REFUSES TO SIGN A WAIVER OF
HIS IMMUNITY AGAINST SUBSEQUENT PROSECUTION UPON ANY MATTER OF AN
OFFICIAL NATURE ABOUT WHICH HE IS ASKED TO TESTIFY SHALL LOSE HIS JOB
AND BE DISQUALIFIED FROM FUTURE EMPLOYMENT WITH THE CITY.  ARTICLE I,
SEC. 6, OF THE CONSTITUTION OF THE STATE OF NEW YORK CONTAINS A
PROVISION MUCH TO THE SAME EFFECT.  (FN3) 

PETITIONER WAS FIRST CALLED TO TESTIFY BEFORE THE GRAND JURY ON MARCH
7, 1951.  HE WAS THEN A MEMBER OF THE POLICE DEPARTMENT OF THE CITY OF
NEW YORK.  PRIOR TO BEING SWORN, HE SIGNED A WAIVER OF IMMUNITY AGAINST
PROSECUTION.  (FN4)  AFTER BEING SWORN, HE TESTIFIED THAT THE WAIVER
HAD BEEN EXECUTED VOLUNTARILY AND WITH FULL UNDERSTANDING AS TO ITS
MEANING.  HE WAS GIVEN A FINANCIAL QUESTIONNAIRE AND DIRECTED TO RETURN
WITH IT COMPLETELY FILLED OUT ON MARCH 28, 1951.  ON MARCH 27, 1951,
HIS CONNECTION WITH THE POLICE DEPARTMENT WAS SEVERED.  HIS NEXT
APPEARANCE BEFORE THE GRAND JURY WAS ON OCTOBER 22, 1952, WHEN HE WAS
GIVEN ANOTHER QUESTIONNAIRE AND INSTRUCTED TO RETURN IT IN COMPLETED
FORM BY NOVEMBER 12, 1952.  ON NOVEMBER 12 HE ASKED FOR AN EXTENSION OF
TIME AND HIS REQUEST WAS GRANTED.  (FN5)  ON DECEMBER 21, 1952, HE WAS
ONCE AGAIN BEFORE THE GRAND JURY.  ON THAT OCCASION, HE WAS ASKED THE
FOLLOWING QUESTION: 

"WHILE YOU WERE A PLAINCLOTHESMAN IN THE POLICE DEPARTMENT OF THE
CITY OF NEW YORK DID YOU EVER ACCEPT OR RECEIVE ANY BRIBES FROM
BOOKMAKERS OR OTHER GAMBLERS?" 

PETITIONER REFUSED TO ANSWER THE QUESTION ON THE GROUND THAT HIS
ANSWER MIGHT TEND TO INCRIMINATE HIM.  HE MADE A STATEMENT IN WHICH HE
CLAIMED THAT HIS WAIVER OF IMMUNITY WAS INVALID SINCE HE HAD NOT
UNDERSTOOD ITS SIGNIFICANCE WHEN HE SIGNED IT, AND NO ONE HAD EXPLAINED
IT TO HIM.  HE EXPRESSED DOUBT AS TO HIS STATUS AS A WITNESS AND HIS
PRIVILEGES AND DUTIES AS SUCH. 

PETITIONER WAS TAKEN BEFORE THE COUNTY COURT OF KINGS COUNTY TO
CLARIFY HIS STATUS.  IT WAS THERE HELD, AFTER A HEARING, THAT THE
WAIVER WAS VALID BECAUSE PETITIONER HAD FULLY UNDERSTOOD ITS
SIGNIFICANCE WHEN HE SIGNED IT.  PETITIONER WAS DIRECTED TO ANSWER THE
QUESTION WHICH HE HAD BEEN ASKED.  HE RETURNED TO THE GRAND JURY, BUT
PERSISTED IN HIS REFUSAL TO TESTIFY.  HE WAS THEREUPON INDICTED FOR
CRIMINAL CONTEMPT, TRIED BY A JURY, AND CONVICTED.  HIS CONVICTION WAS
AFFIRMED BY THE APPELLATE DIVISION IN A SHORT MEMORANDUM OPINION, 282
APP. DIV. 775, 122 N.Y.S.2D 478, AND BY THE NEW YORK COURT OF APPEALS
WITHOUT OPINION, 306 N.Y. 747, 117 N.E.2D 921.  THE COURT OF APPEALS
DID AMEND ITS REMITTITUR TO SHOW THAT THE QUESTION OF WHETHER
PETITIONER HAD BEEN DEPRIVED OF LIBERTY WITHOUT DUE PROCESS OF LAW HAD
BEEN RAISED AND PASSED UPON.  306 N.Y. 875, 119 N.E.2D 45. 

PETITIONER CONTENDS THAT THIS COURT MUST HERE DETERMINE WHETHER THE
FOURTEENTH AMENDMENT PREVENTS A STATE FROM IMPRISONING AN INDIVIDUAL
FOR REFUSING TO GIVE SELF-INCRIMINATORY TESTIMONY.  IN SO DOING HE
IGNORES THE CRUCIAL SIGNIFICANCE OF THE IMMUNITY STATUTE IN THIS CASE. 
WE SIMPLY HOLD THAT UNDER THE CIRCUMSTANCES HERE PRESENTED PETITIONER
WAS NOT DEPRIVED OF ANY CONSTITUTIONAL RIGHTS IN BEING PUNISHED FOR HIS
REFUSAL TO TESTIFY. 

THE IMMUNITY STATUTE IS CRUCIAL IN THIS CASE BECAUSE IT REMOVED ANY
POSSIBLE JUSTIFICATION WHICH PETITIONER HAD FOR NOT TESTIFYING.  IF
PETITIONER HAD NOT EXECUTED A WAIVER OF IMMUNITY, IT IS CLEAR BEYOND
DISPUTE THAT HE WOULD HAVE HAD TO TESTIFY; (FN6) THE STATUTE WOULD HAVE
PROVIDED HIM WITH IMMUNITY FROM PROSECUTION ON THE MATTERS ON WHICH HIS
TESTIMONY WAS SOUGHT, AND THUS HIS TESTIMONY COULD NOT POSSIBLY HAVE
BEEN SELF-INCRIMINATORY.  (FN7)  THE WAIVER OF IMMUNITY, ALTHOUGH IT
DOES AFFECT THE POSSIBILITY OF SUBSEQUENT PROSECUTION, DOES NOT ALTER
PETITIONER'S UNDERLYING OBLIGATION TO TESTIFY.  MUCH OF THE ARGUMENT
BEFORE THIS COURT HAS BEEN DIRECTED AT THE QUESTION OF WHETHER THE
WAIVER OF IMMUNITY WAS VALID OR INVALID, VOLUNTARY OR COERCED,
EFFECTUAL OR INEFFECTUAL.  THAT QUESTION IS IRRELEVANT TO THE
DISPOSITION OF THIS CASE FOR ON EITHER ASSUMPTION THE REQUIREMENT TO
TESTIFY, IMPOSED BY THE GRANT OF IMMUNITY, REMAINS UNIMPAIRED. 

FIRST, ASSUME THAT THE WAIVER WAS VALID.  ANY TESTIMONY WHICH THE
PETITIONER GAVE COULD THEN HAVE FORMED THE BASIS FOR A SUBSEQUENT
PROSECUTION, AND THE STATE WOULD HERE BE PUNISHING THE PETITIONER FOR
HIS REFUSAL TO PROVIDE SUCH SELF-INCRIMINATORY TESTIMONY.  BUT, SINCE
WE ARE ASSUMING THE VALIDITY OF THE WAIVER, SUCH A SITUATION WOULD BE
SIMPLY THE RESULT OF A VOLUNTARY CHOICE TO WAIVE AN IMMUNITY PROVIDED
BY THE STATE. 

THE WAIVER OF IMMUNITY FROM PROSECUTION MAY, ON THE OTHER HAND, BE
REGARDED AS INVALID.  PETITIONER ARGUES AT SOME LENGTH THAT THE WAIVER
WAS OBTAINED BY A "PATTERN OF DURESS AND LACK OF UNDERSTANDING."  HE
POINTS TO THE CIRCUMSTANCES ATTENDING THE SIGNING OF THE WAIVER:  THE
SIZE OF THE ROOM, THE NUMBER OF POLICEMEN WHO SIMULTANEOUSLY EXECUTED
WAIVERS, THE SPEED WITH WHICH THE WAIVERS WERE OBTAINED, THE LACK OF
COUNSEL, ETC.  (FN8)  HE ALSO POINTS TO THE PROVISIONS OF THE NEW YORK
CONSTITUTION AND THE CITY CHARTER REQUIRING HIM TO SIGN THE WAIVER OR
LOSE HIS JOB.  (FN9)  IN ADDITION HE CLAIMS THAT THE WAIVER WAS STALE
AND THUS INEFFECTIVE SINCE OVER 21 MONTHS HAD ELAPSED FROM THE DATE OF
ITS EXECUTION TO HIS REFUSAL TO TESTIFY.  WE FAIL TO SEE WHERE
PETITIONER'S ARGUMENTS LEAD.  IF THE WAIVER IS INVALID, THE IMMUNITY
FROM PROSECUTION PERSISTS, AND IN THE PRESENCE OF SUCH IMMUNITY
PETITIONER'S TESTIMONY COULD NOT POSSIBLY BE SELF-INCRIMINATORY.  IT
MUST BE REMEMBERED THAT THIS CONVICTION IS FOR REFUSING TO TESTIFY. 
THE INVALIDITY OF THE WAIVER MAY BE MADE A DEFENSE TO SUBSEQUENT
PROSECUTION, WHERE IT WOULD BE A PROPER MATTER FOR DISPOSITION; IT IS
NO DEFENSE TO A REFUSAL TO TESTIFY. 

PETITIONER SUGGESTS THAT HIS REFUSAL TO TESTIFY MAY HAVE BEEN
JUSTIFIED BY THE UNCERTAINTY EXISTING AT THE TIME HE WAS DIRECTED TO
TESTIFY.  THAT UNCERTAINTY WAS ONLY AS TO WHETHER OR NOT HE COULD BE
PROSECUTED FOR CRIMINAL ACTIVITY WHICH MIGHT BE REVEALED IN HIS
TESTIMONY.  AS A MATTER OF STATE LAW, A DEFENSE TO THE CRIME OF
CRIMINAL CONTEMPT MAY BE PROVIDED WHEN SUCH UNCERTAINTY REACHES A
SUFFICIENTLY HIGH POINT.  (FN10)  BUT THE CONSTITUTION DOES NOT REQUIRE
THE DEFINITIVE RESOLUTION OF COLLATERAL QUESTIONS AS A CONDITION
PRECEDENT TO A VALID CONTEMPT CONVICTION.  CF. COBBLEDICK V. UNITED
STATES, 309 U.S. 323, 327.  THE PETITIONER KNEW THAT HOWEVER THE
QUESTION OF THE VALIDITY OF THE WAIVER MIGHT BE RESOLVED, HE WAS
OBLIGED TO TESTIFY.  IN PERSISTING IN HIS REFUSAL AFTER BEING DIRECTED
TO TESTIFY HE COULD BE PUNISHED FOR CONTEMPT.  THE LAW STRIVES TO
PROVIDE PREDICTABILITY SO THAT KNOWING MEN MAY WISELY ORDER THEIR
AFFAIRS; IT CANNOT, HOWEVER, REMOVE ALL DOUBTS AS TO THE CONSEQUENCE OF
A COURSE OF ACTION. 

THE JUDGMENT BELOW IS ACCORDINGLY AFFIRMED. 

FN1 SEE ALSO NEW YORK CODE OF CRIMINAL PROCEDURE, SEC. 10. 

FN2  TO THE SAME EFFECT WERE SECS. 584 AND 996 OF THE PENAL LAW WHICH
DEALT WITH THE CRIMES OF CONSPIRACY AND GAMBLING.  THESE STATUTES HAVE
SINCE BEEN AMENDED.  NEW YORK LAWS 1953, C. 891. 

FN3  IT STATES THAT:  "  ...  ANY PUBLIC OFFICER WHO, UPON BEING
CALLED BEFORE A GRAND JURY TO TESTIFY CONCERNING THE CONDUCT OF HIS
OFFICE OR THE PERFORMANCE OF HIS OFFICIAL DUTIES, REFUSES TO SIGN A
WAIVER OF IMMUNITY AGAINST SUBSEQUENT CRIMINAL PROSECUTION, OR TO
ANSWER ANY RELEVANT QUESTION CONCERNING SUCH MATTERS BEFORE SUCH GRAND
JURY, SHALL BY VIRTUE OF SUCH REFUSAL, BE DISQUALIFIED FROM HOLDING ANY
OTHER PUBLIC OFFICE OR PUBLIC EMPLOYMENT FOR A PERIOD OF FIVE YEARS,
AND SHALL BE REMOVED FROM OFFICE BY THE APPROPRIATE AUTHORITY OR SHALL
FORFEIT HIS OFFICE AT THE SUIT OF THE ATTORNEY-GENERAL." 

FN4                "WAIVER OF IMMUNITY 

"I, MICHAEL J. REGAN, OF NO. 3819 HARPER AVENUE, BRONX,  ...  OF THE
CITY OF NEW YORK PURSUANT TO THE PROVISIONS OF SECTION 2446 OF THE
PENAL LAW OF THE STATE OF NEW YORK, DO HEREBY WAIVE ALL IMMUNITY WHICH
I WOULD OTHERWISE OBTAIN FROM INDICTMENT, PROSECUTION, PUNISHMENT,
PENALTY OR FORFEITURE FOR OR ON ACCOUNT OF OR RELATING TO ANY
TRANSACTION, MATTER OR THING CONCERNING WHICH I MAY TESTIFY OR PRODUCE
EVIDENCE, DOCUMENTARY OR OTHERWISE, BEFORE THE GRAND JURY OF THE COUNTY
OF KINGS, IN ITS INVESTIGATION ABOVE ENTITLED OR IN ANY OTHER
INVESTIGATION OR OTHER PROCEEDING, BEFORE ANY JUDGE OR JUSTICE, COURT
OR OTHER TRIBUNAL, CONDUCTING AN INQUIRY FOR LEGAL PROCEEDING RELATING
TO THE ACTS OF SAID JOHN DOE, MICHAEL J. REGAN, OR OF ANY OTHER
PERSON. 

"I DO HEREBY FURTHER WAIVE ANY AND ALL PRIVILEGES WHICH I WOULD
OTHERWISE OBTAIN AGAINST THE USE AGAINST ME OF THE TESTIMONY SO GIVEN
OR THE EVIDENCE SO PRODUCED UPON ANY CRIMINAL INVESTIGATION,
PROSECUTION OR PROCEEDING. 

                                        (SIGNED) MICHAEL J.
REGAN."  (WITNESSED AND NOTARIZED.) 

FN5  THE QUESTIONNAIRES NEVER WERE COMPLETED. 

FN6  SEE BROWN V. WALKER, 161 U.S. 591; CF. COUNSELMAN V. HITCHCOCK,
142 U.S. 547. 

FN7  PETITIONER DOES NOT CHALLENGE THE SUFFICIENCY OF THE IMMUNITY
PROVIDED. 

FN8  THERE WAS TESTIMONY THAT THE WAIVER WAS OBTAINED IN A ROOM WHICH
MEASURED "10 X 10, OR 12 X 12, APPROXIMATELY," CONTAINING A DESK "ABOUT
60 X 2" AND A BENCH UPON WHICH "ABOUT FIVE PEOPLE COULD SIT."  ABOUT 35
WAIVERS WERE OBTAINED IN A PERIOD OF 25 MINUTES.  AN ASSISTANT DISTRICT
ATTORNEY MADE A SINGLE SPEECH EXPLAINING THE NATURE OF THE IMMUNITY. 
IMMEDIATELY AFTER EXECUTING THE WAIVER, PETITIONER TESTIFIED THAT HE
HAD SIGNED THE WAIVER VOLUNTARILY, THAT IT HAD BEEN EXPLAINED TO HIM,
AND THAT HE UNDERSTOOD ITS MEANING.  TWENTY MONTHS THEREAFTER
PETITIONER REAFFIRMED ITS EXECUTION WITHOUT RAISING ANY OBJECTION TO
ITS VALIDITY.  IT WAS SOME TWENTY-ONE MONTHS AFTER ITS EXECUTION THAT
PETITIONER CHALLENGED THE VALIDITY OF THE WAIVER FOR THE FIRST TIME. 
THE TRIAL COURT LEFT THE QUESTION OF THE VALIDITY OF THE WAIVER TO THE
JURY.  ITS VERDICT OF GUILTY INDICATES ITS FINDING ON THIS MATTER.  THE
CONVICTION WAS AFFIRMED BY BOTH APPELLATE COURTS, BUT WE CANNOT BE SURE
THAT THE AFFIRMANCE SUSTAINED THE FINDING ON THIS MATTER FOR THE
APPELLATE COURTS MAY HAVE VIEWED THE QUESTION OF THE VALIDITY OF THE
WAIVER AS IRRELEVANT TO THEIR DECISION AS WE DO TO OURS. 

FN9  IT MIGHT BE POINTED OUT THAT, AS FAR AS THE RECORD SHOWS, THIS
OBJECTION WAS AT NO POINT RAISED BELOW.  IT APPEARS FOR THE FIRST TIME
IN THE PETITION FOR CERTIORARI. 

FN10  PEOPLE EX REL. HOFSAES V. WARDEN, 302 N.Y. 403, 98 N.E.2D 579. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE CLARK JOINS,
CONCURRING. 

I CONCUR IN THE OPINION AND JUDGMENT OF THE COURT, BUT WOULD ADD THAT
SUBSTANTIAL FEDERAL QUESTIONS MAY ARISE IF THE PETITIONER IS AGAIN
CALLED UPON TO TESTIFY CONCERNING BRIBERY ON THE POLICE FORCE WHILE HE
WAS AN OFFICER AND IF HE IS THEREAFTER DENIED IMMUNITY AS TO ANY
OFFENSES RELATED TO THE INVESTIGATION. 

THIS COURT HAS NEVER HELD THAT A STATE, IN THE ABSENCE OF AN ADEQUATE
IMMUNITY STATUTE, CAN PUNISH A WITNESS FOR CONTEMPT FOR REFUSING TO
ANSWER SELF-INCRIMINATORY QUESTIONS.  A CASE INVOLVING SUCH FACTS HAS
NEVER BEEN PRESENTED HERE.  (FN1)  NOR IS THIS SUCH A CASE, SINCE NEW
YORK, BY SEC. 381 OF THE PENAL LAW, HAS GRANTED IMMUNITY.  PETITIONER
WAS OBLIGED TO ANSWER THE QUESTIONS AS WOULD BE ANY WITNESS IN THE
STATE OF NEW YORK.  IF HE HAD SIGNED NO WAIVER, HE CONCEDEDLY WOULD
HAVE BEEN COMPELLED TO TESTIFY, SINCE UNDER SEC. 381 OF THE NEW YORK
PENAL LAW HE WOULD BE ENTITLED TO IMMUNITY.  THE FACT THAT HE SIGNED A
WAIVER, EVEN ASSUMING IT TO BE INVALID AS HE CLAIMS, CERTAINLY CANNOT
RELIEVE HIM FROM THE DUTY OF EVERY CITIZEN TO TESTIFY.  HIS FAILURE TO
SO TESTIFY, THEREFORE, PLACED HIM IN CONTEMPT OF COURT AND SUBJECT TO
THE PUNISHMENT ACCORDED HIM IN THIS CASE.    HOWEVER, BECAUSE IT
APPEARS FROM THE RECORD TO BE THE INTENTION OF THE AUTHORITIES TO
PUNISH HIM BOTH FOR CONTEMPT FOR REFUSAL TO TESTIFY AND FOR BRIBERY IF
HE ADMITS SUCH MISCONDUCT, WE MIGHT EVENTUALLY BE FACED WITH THE
QUESTION OF WHAT HIS RIGHTS WOULD BE IF ON A SUBSEQUENT HEARING HE
SHOULD INCRIMINATE HIMSELF AFTER CLAIMING A PRIVILEGE AGAINST SELF
INCRIMINATION.  PETITIONER MIGHT DEFEND AGAINST A PROSECUTION STEMMING
FROM SUCH INVOLUNTARY TESTIMONY BY CHALLENGING THE VALIDITY OF THE
WAIVER, BASING HIS OBJECTION ON AN ASSERTED FEDERAL RIGHT AGAINST SELF
INCRIMINATION.  SUCH A CHALLENGE MIGHT WELL EMBRACE THE CONTENTION MADE
HERE OF COERCION IN THE PROCUREMENT OF THE WAIVER, AS WELL AS THE CLAIM
THAT ITS USE WELL BEYOND THE TERM OF PETITIONER'S PUBLIC EMPLOYMENT
WOULD BE AN UNREASONABLE INTERFERENCE WITH PETITIONER'S CLAIMED FEDERAL
RIGHT.  (FN2) 

MOREOVER, A STATE IMMUNITY STATUTE - LIKE ANY OTHER STATE STATUTE -
MUST BE APPLIED UNIFORMLY UNLESS THERE IS SOME REASONABLE GROUND FOR
CLASSIFICATION; OTHERWISE, THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT IS VIOLATED.  (FN3)  AFTER A CITY EMPLOYEE SUFFERS
THE PRIMARY SANCTION OF THE CONSTITUTIONAL AND CHARTER SECTIONS -
NAMELY, LOSS OF HIS POSITION - IT MAY WELL BE THAT THE WAIVER CANNOT BE
USED TO SEND HIM TO THE PENITENTIARY FOR BRIBERY WHEN THE SAME SANCTION
WOULD NOT BE IMPOSED ON OTHER WITNESSES GIVING LIKE TESTIMONY. 

HOWEVER, AS ALREADY NOTED, WE DO NOT REACH THESE QUESTIONS HERE. 

FN1  COMPARE TWINING V. NEW JERSEY, 211 U.S. 78 (JURY INSTRUCTION
AUTHORIZING THE JURY IN A CRIMINAL CASE TO DRAW AN UNFAVORABLE
INFERENCE FROM THE ACCUSED'S FAILURE TO TAKE THE STAND); ADAMSON V.
CALIFORNIA, 332 U.S. 46 (STATE LAW PERMITTING PROSECUTOR AND TRIAL
JUDGE TO COMMENT ON THE ACCUSED'S FAILURE TO TAKE THE STAND); SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 105 (DENIAL OF PERMISSION TO THE ACCUSED TO
ACCOMPANY JURY ON VISIT TO SCENE OF CRIME); PALKO V. CONNECTICUT, 302
U.S. 319, 325-326 (STATE STATUTE ALLOWING APPEAL BY STATE IN CRIMINAL
CASES). 

FN2  CF. TERRAL V. BURKE CONSTRUCTION CO., 257 U.S. 529. 

FN3  SEE, E.G., DOWD V. UNITED STATES EX REL. COOK, 340 U.S. 206, AND
COCHRAN V. KANSAS, 316 U.S. 255. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

IN ORDER TO KEEP HIS JOB AS A NEW YORK CITY POLICEMAN PETITIONER
SIGNED A PAPER WAIVING IMMUNITY HE WOULD OTHERWISE HAVE HAD FROM
PROSECUTION UNDER STATE LAW AS TO MATTERS HE MIGHT TESTIFY ABOUT BEFORE
A GRAND JURY.  TWENTY-TWO MONTHS LATER, LONG AFTER HE HAD RESIGNED AS A
POLICEMAN, HE WAS BROUGHT BEFORE A COUNTY GRAND JURY.  HE WAS ASKED
WHETHER HE HAD EVER ACCEPTED BRIBES WHILE HE WAS A POLICEMAN. 
ACCEPTANCE OF BRIBES IS A NEW YORK FELONY PUNISHABLE BY TEN YEARS'
IMPRISONMENT.  PETITIONER REFUSED TO ANSWER THE QUESTIONS CLAIMING A
FEDERAL CONSTITUTIONAL AND STATE PRIVILEGE AGAINST SELF-INCRIMINATION. 
FOR REFUSAL TO ANSWER HE WAS SENTENCED TO TWELVE MONTHS IN PRISON.  THE
COURT HOLDS THAT NEW YORK CAN THUS IMPRISON PETITIONER "FOR HIS REFUSAL
TO PROVIDE SUCH SELF-INCRIMINATORY TESTIMONY."  I DO NOT AGREE THAT NEW
YORK CAN DO THIS CONSISTENTLY WITH THE FEDERAL CONSTITUTION. 

FOR REASONS STATED ON OTHER OCCASIONS I BELIEVE THE FOURTEENTH
AMENDMENT MAKES THE FIFTH AMENDMENT APPLICABLE TO THE STATES.  SEE,
E.G., ADAMSON V. CALIFORNIA, 332 U.S. 46, 68.  AND THE FIFTH AMENDMENT
ACCORDS AN UNQUALIFIED PRIVILEGE TO PERSONS TO BE SILENT WHEN ASKED
QUESTIONS ANSWERS TO WHICH WOULD MAKE THOSE PERSONS WITNESSES AGAINST
THEMSELVES.  SEE, E.G., BLAU V. UNITED STATES, 340 U.S. 159, 161.  EVEN
UNDER THE OTHER VIEW OF THE FOURTEENTH AMENDMENT, THAT IT DOES NOT MAKE
THE FIFTH AMENDMENT APPLICABLE TO THE STATES AND THAT UNDER SOME
CIRCUMSTANCES STATES MAY COMPEL PERSONS TO TESTIFY AGAINST THEMSELVES,
THIS COURT HAS HELD MANY TIMES THAT A STATE MAY NOT CONVICT A PERSON ON
TESTIMONY IT COERCED FROM HIM.  E.G., LEYRA V. DENNO, 347 U.S. 556,
558; ASHCRAFT V. TENNESSEE, 322 U.S. 143, 155; CF. ROCHIN V.
CALIFORNIA, 342 U.S. 165.  COERCING TESTIMONY FOR THAT PURPOSE IS
EQUALLY OBNOXIOUS TO THE FOURTEENTH AMENDMENT.  HOWEVER ITS ACTION IS
DESCRIBED, THE STATE IS SEEKING TO COERCE THIS PETITIONER TO GIVE
TESTIMONY TO HELP BRING ABOUT HIS CONVICTION FOR CRIME.  FOR IT IS
CERTAINLY COERCION TO THROW A MAN INTO JAIL UNLESS HE AGREES TO TESTIFY
AGAINST HIMSELF. 

THE COURT APPROVES THE DILEMMA IN WHICH NEW YORK PLACES PETITIONER. 
HE MUST GIVE EVIDENCE WHICH MIGHT CONVICT HIM OF A FELONY OR GO TO JAIL
FOR REFUSING TO GIVE THAT EVIDENCE.  THE COURT SAYS, HOWEVER, THAT
PETITIONER'S DILEMMA IS "SIMPLY THE RESULT OF A VOLUNTARY CHOICE TO
WAIVE AN IMMUNITY PROVIDED BY THE STATE."  THERE OF COURSE MAY BE SOME
DOUBT AS TO HOW "VOLUNTARY" THIS "CHOICE" WAS.  IN ANY EVENT IT IS A
COMPLETELY NOVEL IDEA THAT A WAIVER DEVICE OF THIS KIND CAN DESTROY
CONSTITUTIONAL PROTECTIONS.  IT IS NOTHING MORE NOR LESS THAN A
WHOLESALE BLANKET AGREEMENT THAT A PERSON WILL NOT CLAIM A
CONSTITUTIONAL PRIVILEGE WITH REFERENCE TO ANYTHING HE HAS EVER DONE IN
THE PAST OR THAT HE MAY DO IN THE FUTURE IN CONNECTION WITH HIS JOB. 
SO FAR AS I KNOW IT HAS NEVER BEEN HELD BEFORE THAT THE PRIVILEGE
AGAINST SELF-INCRIMINATION OR ANY OTHER BILL OF RIGHTS SAFEGUARD CAN BE
BARGAINED AWAY FAR IN ADVANCE OF THE DAY WHEN NEEDED AS PROTECTION
AGAINST THE OVERREACHING POWER OF GOVERNMENT. 

THE COURT'S HOLDING APPEARS TO APPROVE A DANGEROUS TECHNIQUE WHEREBY
BOTH STATE AND FEDERAL GOVERNMENTS CAN COMPEL PEOPLE TO CONVICT
THEMSELVES OUT OF THEIR OWN MOUTHS.  ARE WE TO INFER THAT THE FEDERAL
GOVERNMENT IS NOW FREE TO COMPEL ITS MILLIONS OF EMPLOYEES PERMANENTLY
TO WAIVE THEIR PRIVILEGE AGAINST SELF-INCRIMINATION OR LOSE THEIR
JOBS?  SURELY PRIVATE EMPLOYERS ARE NOT NOW FREE TO COMPEL THEIR
EMPLOYEES TO WAIVE THIS AND OTHER CONSTITUTIONAL PRIVILEGES.  THIS
MIGHT BE HIGHLY SATISFACTORY TO THOSE WHO BELIEVE THAT THE PRIVILEGE
AGAINST COMPULSORY SELF-INCRIMINATION HAS NO PROPER PLACE IN OUR BILL
OF RIGHTS.  BUT THAT PROVISION WAS DESIGNED AS A CONTINUING RIGID
SAFEGUARD AGAINST RUTHLESS EXERCISE OF GOVERNMENTAL POWER.*  THAT IT
SOMETIMES PERMITS PEOPLE TO ESCAPE CONVICTION FOR OFFENSES IS NO
SUFFICIENT REASON FOR READING IT OUT OF THE CONSTITUTION.  THOSE WHO
WROTE THE PROVISION ARE BOUND TO HAVE KNOWN THAT IT WOULD HAVE THE
EFFECT OF MAKING IT HARDER FOR THE GOVERNMENT TO CONVICT PEOPLE ACCUSED
OF CRIME.  EXACTLY THAT EFFECT RESULTS FROM ALL OF THE PROCEDURAL
PROVISIONS OF THE BILL OF RIGHTS, INCLUDING THE RIGHT TO BE HEARD, TO
HAVE A LAWYER, TO BE CONFRONTED BY WITNESSES, TO BE INFORMED OF THE
NATURE OF THE OFFENSE CHARGED, AND TO BE TRIED BY JURY.  THIS HOLDING
WEAKENS THESE AND OTHER ANCIENT SAFEGUARDS WHICH TO ME REPRESENT GREAT
LANDMARKS IN THE NEVER-CEASING STRUGGLE OF MEN TO BE FREE FROM DESPOTIC
GOVERNMENTAL POWERS.  SEE DISSENT IN FELDMAN V. UNITED STATES, 322 U.S.
487, 494-503. 

*"I WOULD LIKE TO VENTURE THE SUGGESTION THAT THE PRIVILEGE AGAINST
SELF-INCRIMINATION IS ONE OF THE GREAT LANDMARKS IN MAN'S STRUGGLE TO
MAKE HIMSELF CIVILIZED.  AS I HAVE ALREADY POINTED OUT, THE
ESTABLISHMENT OF THE PRIVILEGE IS CLOSELY LINKED HISTORICALLY WITH THE
ABOLITION OF TORTURE.  NOW WE LOOK UPON TORTURE WITH ABHORRENCE.  BUT
TORTURE WAS ONCE USED BY HONEST AND CONSCIENTIOUS PUBLIC SERVANTS AS A
MEANS OF OBTAINING INFORMATION ABOUT CRIMES WHICH COULD NOT OTHERWISE
BE DISCLOSED.  WE WANT NONE OF THAT TODAY, I AM SURE  ... . 

"IF A MAN HAS DONE WRONG, HE SHOULD BE PUNISHED.  BUT THE EVIDENCE
AGAINST HIM SHOULD BE PRODUCED, AND EVALUATED BY A PROPER COURT IN A
FAIR TRIAL.  NEITHER TORTURE NOR AN OATH NOR THE THREAT OF PUNISHMENT
SUCH AS IMPRISONMENT FOR CONTEMPT SHOULD BE USED TO COMPEL HIM TO
PROVIDE THE EVIDENCE TO ACCUSE OR TO CONVICT HIMSELF."  GRISWOLD, THE
FIFTH AMENDMENT TODAY, 7-8. 

I WOULD REVERSE THIS CASE. 
..END :

















GRANVILLE-SMITH V. GRANVILLE-SMITH 349 U.S. 1 


NO. 261.  ARGUED FEBRUARY 3-4, 1955 - DECIDED APRIL 11, 1955 - 214 F.2D
820, AFFIRMED. 


BY THE ORGANIC ACT OF THE VIRGIN ISLANDS, CONGRESS DELEGATED TO THEIR
LEGISLATIVE ASSEMBLY AUTHORITY TO ENACT LAWS ON SUBJECTS "OF LOCAL
APPLICATION."  THE LEGISLATIVE ASSEMBLY ENACTED A DIVORCE LAW, SEC.
9(A) OF WHICH PROVIDES THAT, IF THE PLAINTIFF HAS BEEN CONTINUOUSLY
WITHIN THE DISTRICT FOR SIX WEEKS AND THE DEFENDANT HAS BEEN PERSONALLY
SERVED OR ENTERS A GENERAL APPEARANCE, THE DISTRICT COURT OF THE VIRGIN
ISLANDS SHALL HAVE JURISDICTION "WITHOUT FURTHER REFERENCE TO
DOMICILE."  HELD: SECTION 9(A) EXCEEDS THE POWER OF THE LEGISLATIVE
ASSEMBLY, AND HENCE THE DISTRICT COURT OF THE VIRGIN ISLANDS HAS NO
JURISDICTION TO GRANT A DIVORCE ON A MERE SHOWING OF CONTINUOUS
PRESENCE OF THE PLAINTIFF IN THE VIRGIN ISLANDS FOR SIX WEEKS AND ENTRY
BY THE DEFENDANT OF A GENERAL APPEARANCE AND CONSENT TO A DEFAULT
DECREE.  PP. 2-16. 

(A)  THE ORGANIC ACTS OF ALASKA AND HAWAII LIMIT DIVORCE JURISDICTION
TO CASES WHERE THE PLAINTIFFS HAVE RESIDED IN THE TERRITORY FOR AT
LEAST TWO YEARS; AND IT IS NOT REASONABLE TO BELIEVE THAT CONGRESS WAS
LESS CONCERNED WITH THE SCOPE OF DIVORCE JURISDICTION IN THE VIRGIN
ISLANDS, AN UNINCORPORATED TERRITORY, OR THAT IT INTENDED TO GRANT THEM
UNRESTRICTED FREEDOM IN THE FIELD OF DIVORCE LEGISLATION.  P. 9. 

(B)  THE TERM "LOCAL APPLICATION" IN THE ORGANIC ACT OF THE VIRGIN
ISLANDS IMPLIES LIMITATION TO SUBJECTS HAVING RELEVANT TIES WITHIN THE
TERRITORY, TO LAWS GROWING OUT OF THE NEEDS OF THE ISLANDS AND
GOVERNING RELATIONS WITH THEM.  P. 10. 

(C)  IN THE LIGHT OF ITS LEGISLATIVE HISTORY, IT IS OBVIOUS THAT SEC.
9(A) OF THE VIRGIN ISLANDS DIVORCE LAW WAS NOT CONCERNED WITH THE NEEDS
AND INTERESTS OF THE LOCAL POPULATION BUT WAS PASSED FOR THE PURPOSE OF
ENCOURAGING PERSONS FROM OTHER JURISDICTIONS TO VISIT THE VIRGIN
ISLANDS TO OBTAIN DIVORCES.  PP. 10-16. 

(D)  IN THE CIRCUMSTANCES, IT CANNOT BE CONCLUDED THAT, IF CONGRESS
HAD CONSCIOUSLY BEEN ASKED TO GIVE THE VIRGIN ISLANDS LEGISLATIVE
ASSEMBLY POWER TO DO WHAT NO STATE HAS EVER ATTEMPTED, IT WOULD HAVE
DONE SO.  P. 16. 

GRANVILLE-SMITH V. GRANVILLE-SMITH. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS SEC. 9(A) OF THE DIVORCE LAW OF THE VIRGIN
ISLANDS: 

"NOTWITHSTANDING THE PROVISIONS OF SECTIONS 8 AND 9 HEREOF, (FN1) IF
THE PLAINTIFF IS WITHIN THE DISTRICT AT THE TIME OF THE FILING OF THE
COMPLAINT AND HAS BEEN CONTINUOUSLY FOR SIX WEEKS IMMEDIATELY PRIOR
THERETO, THIS SHALL BE PRIMA FACIE EVIDENCE OF DOMICILE, AND WHERE THE
DEFENDANT HAS BEEN PERSONALLY SERVED WITHIN THE DISTRICT OR ENTERS A
GENERAL APPEARANCE IN THE ACTION, THEN THE COURT SHALL HAVE
JURISDICTION OF THE ACTION AND OF THE PARTIES THERETO WITHOUT FURTHER
REFERENCE TO DOMICILE OR TO THE PLACE WHERE THE MARRIAGE WAS SOLEMNIZED
OR THE CAUSE OF ACTION AROSE." 

THE CIRCUMSTANCES OF THE CASE AND THE COURSE OF THE LITIGATION ARE
BRIEFLY STATED.  PETITIONER FILED SUIT FOR DIVORCE BECAUSE OF
"IRRECONCILABLE INCOMPATIBILITY" (FN2) IN THE DISTRICT COURT OF THE
VIRGIN ISLANDS ON MARCH 16, 1953.  THE COMPLAINT ALLEGED THAT SHE HAD
BEEN A "RESIDENT AND INHABITANT" OF THE ISLANDS FOR MORE THAN SIX WEEKS
PRIOR TO THE COMMENCEMENT OF THE ACTION, THAT RESPONDENT WAS NOT A
RESIDENT OF THE ISLANDS, AND THAT THE COUPLE HAD NO CHILDREN UNDER 21. 
THROUGH VIRGIN ISLANDS COUNSEL - AUTHORIZED BY A POWER OF ATTORNEY
EXECUTED IN NEW YORK - RESPONDENT ENTERED AN APPEARANCE, WAIVED
PERSONAL SERVICE, DENIED PETITIONER'S ALLEGATIONS, AND FILED A "WAIVER
AND CONSENT" TO "HEARING OF THIS CAUSE AS IF BY DEFAULT" AND TO "SUCH
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND DECREE AS TO THE COURT MAY
SEEM JUST AND REASONABLE." 

SOLELY ON THE BASIS OF PETITIONER'S TESTIMONY THAT SHE HAD RESIDED IN
THE VIRGIN ISLANDS CONTINUOUSLY FOR 43 DAYS BEFORE BRINGING SUIT, THE
COMMISSIONER WHO HEARD THE CASE FOUND THAT SHE WAS A RESIDENT AND
INHABITANT OF THE ISLANDS AND HAD BEEN SO FOR MORE THAN SIX WEEKS PRIOR
TO THE ACTION.  HAVING ALSO FOUND THAT THE CLAIMED GROUND FOR DIVORCE
WAS SUBSTANTIATED, HE RECOMMENDED THAT SHE BE GRANTED A DIVORCE.  ON
PETITIONER'S MOTION TO CONFIRM THE COMMISSIONER'S RECOMMENDATION, THE
DISTRICT COURT INQUIRED OF PETITIONER'S COUNSEL WHETHER HE HAD "ANY
MORE EVIDENCE TO OFFER ON THE QUESTION OF DOMICILE."  SINCE NO FURTHER
EVIDENCE WAS PROFFERED, THE COURT, RELYING ON ITS EARLIER OPINION IN
ALTON V. ALTON, 121 F. SUPP. 878, DISMISSED THE COMPLAINT FOR WANT OF
JURISDICTION OVER PETITIONER. 

THE COURT OF APPEALS FOR THE THIRD CIRCUIT, SITTING EN BANC,
AFFIRMED, 214 F.2D 820, ON THE BASIS OF ITS DECISION IN THE ALTON CASE,
207 F.2D 667.  IN THAT CASE, THE COURT OF APPEALS, LIKEWISE SITTING EN
BANC AND THREE JUDGES DISSENTING, HELD SEC. 9(A) IN VIOLATION OF "DUE
PROCESS" GUARANTEED BY THE FIFTH AMENDMENT AND THE VIRGIN ISLANDS
ORGANIC ACT.  THIS COURT HAD GRANTED CERTIORARI IN THE ALTON CASE, 347
U.S. 911, BUT INTERVENING MOOTNESS ABORTED DISPOSITION ON THE MERITS. 
347 U.S. 610.   THE OBVIOUS IMPORTANCE OF THE ISSUE WHICH BROUGHT THE
ALTON CASE HERE LED US TO GRANT CERTIORARI IN THIS CASE.  348 U.S.
810.  IN VIEW OF THE LACK OF GENUINE ADVERSARY PROCEEDINGS AT ANY STAGE
IN THIS LITIGATION, THE OUTCOME OF WHICH COULD HAVE FAR-REACHING
CONSEQUENCES ON DOMESTIC RELATIONS THROUGHOUT THE UNITED STATES, THE
COURT INVITED SPECIALLY QUALIFIED COUNSEL "TO APPEAR AND PRESENT ORAL
ARGUMENT, AS AMICUS CURIAE, IN SUPPORT OF THE JUDGMENT BELOW."  348
U.S. 885. 

WE NEED NOT CONSIDER ANY OF THE SUBSTANTIVE QUESTIONS PASSED ON BELOW
AND WE INTIMATE NOTHING ABOUT THEM.  FOR WE FIND THAT CONGRESS DID NOT
GIVE THE VIRGIN ISLANDS LEGISLATIVE ASSEMBLY POWER TO ENACT A LAW WITH
THE RADIATIONS OF SEC. 9(A). 

ARTICLE IV, SEC. 3 OF THE CONSTITUTION GIVES THE CONGRESS AUTHORITY
TO "MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY OR
OTHER PROPERTY BELONGING TO THE UNITED STATES  ...  ."  ACCORDINGLY,
CONGRESS HAS FROM TIME TO TIME ESTABLISHED GOVERNMENTS IN THE VARIOUS
TERRITORIES THAT HAVE COME UNDER FEDERAL CONTROL.  TERRITORIAL
GOVERNMENT IN THE CONTINENTAL UNITED STATES WAS CUSTOMARILY VIEWED AS A
TRANSITION STEP TO STATEHOOD, AND STATEHOOD IN FACT RESULTED.  THE
SPANISH-AMERICAN WAR OPENED A NEW CHAPTER.  BEGINNING WITH THE TREATY
OF PARIS, THE UNITED STATES ACQUIRED BY CONQUEST, TREATY OR PURCHASE
OUTLYING TERRITORIES FOR WHICH STATEHOOD WAS NOT CONTEMPLATED.  THE
POSITION OF THESE TERRITORIES IN OUR NATIONAL SCHEME GAVE RISE TO
LIVELY POLITICAL CONTROVERSY.  ANSWERS TO SOME OF THE CONSTITUTIONAL
ISSUES THAT AROSE WERE UNFOLDED IN A SERIES OF DECISIONS BEST
FORMULATED, PERHAPS, IN OPINIONS BY MR. CHIEF JUSTICE WHITE (FN3) AND
MR. CHIEF JUSTICE TAFT.  (FN4) 

A VITAL DISTINCTION WAS MADE BETWEEN "INCORPORATED" AND
"UNINCORPORATED" TERRITORIES.  (FN5)  THE FIRST CATEGORY HAD THE
POTENTIALITIES OF STATEHOOD LIKE UNTO CONTINENTAL TERRITORIES.  THE
UNITED STATES CONSTITUTION, INCLUDING THE BILL OF RIGHTS, FULLY APPLIED
TO AN "INCORPORATED" TERRITORY.  SEE, E.G., RASSMUSSEN V. UNITED
STATES, 197 U.S. 516.  THE SECOND CATEGORY DESCRIBED POSSESSIONS OF THE
UNITED STATES NOT THOUGHT OF AS FUTURE STATES.  TO THESE ONLY SOME
ESSENTIALS, WITHAL UNDEFINED, OF THE CONSTITUTION EXTENDED.  SEE, E.G.,
BALZAC V. PORTO RICO, 258 U.S. 298.  THE INCIDENCE OF THE
DIFFERENTIATION FELL IN TWO AREAS:  (A) THE RIGHT OF THE INDIVIDUAL TO
TRIAL BY JURY AND SIMILAR PROTECTIONS, E.G., BALZAC V. PORTO RICO,
SUPRA; (B) THE RIGHT OF THE FEDERAL GOVERNMENT TO TAX TERRITORIAL
PRODUCTS ON A NONUNIFORM BASIS, E.G., DOWNES V. BIDWELL, 182 U.S. 244. 

THE LEGISLATIVE POWER OF TERRITORIES HAS CUSTOMARILY BEEN EXPRESSED
AS EXTENDING TO "ALL RIGHTFUL SUBJECTS OF LEGISLATION" NOT INCONSISTENT
WITH THE CONSTITUTION OR LAWS OF THE UNITED STATES.  (FN6)  THIS
CONVENTIONAL PHRASING WAS ALTERED TO SUBJECTS OF "LOCAL APPLICATION,"
OR "NOT LOCALLY INAPPLICABLE," IN THE CASE OF UNINCORPORATED
TERRITORIES SUCH AS PRE-COMMONWEALTH PUERTO RICO, THE VIRGIN ISLANDS,
AND GUAM.  (FN7) 

THE QUESTIONS THAT HAVE ARISEN UNDER GRANTS OF LEGISLATIVE POWERS TO
TERRITORIES HAVE FALLEN INTO THREE MAIN CLASSES:  (1) THOSE IN WHICH
THE SOVEREIGN IMMUNITY OF THE TERRITORY WAS IN ISSUE, E.G., PORTO RICO
V. ROSALY Y CASTILLO, 227 U.S. 270; (2) THOSE IN WHICH CONFLICT WAS
CLAIMED WITH THE UNITED STATES CONSTITUTION OR LAWS, E.G., PUERTO RICO
V. SHELL CO., 302 U.S. 253; TERRITORY OF MONTANA V. LEE, 2 MONT. 124;
(3) THOSE IN WHICH THE "RIGHTFUL" NATURE OF PARTICULAR TERRITORIAL
LEGISLATION WAS ASSAILED, E.G., TIACO V. FORBES, 228 U.S. 549; PEOPLE
V. DANIELS, 6 UTAH 288, 22 P. 159.  IT IS THE THIRD GROUP THAT IS OUR
IMMEDIATE CONCERN.  IN DETERMINING THE RIGHTFULNESS OF TERRITORIAL
LEGISLATION THE COURTS HAVE CONSIDERED WHETHER A TERRITORIAL
LEGISLATURE HAS TRANSCENDED THE FAMILIAR BOUNDS OF LEGISLATION.  SEE,
E.G., CHRISTIANSON V. KING COUNTY, 239 U.S. 356.  ONE OF THE EARLIER
QUESTIONS REGARDING THE POWER OF TERRITORIAL LEGISLATURES INVOLVED THE
RIGHT TO PASS LAWS APPLICABLE NOT GENERALLY BUT TO SPECIFIC INDIVIDUALS
OR PORTIONS OF A TERRITORY.  IN MAYNARD V. HILL, 125 U.S. 190, THIS
COURT HELD THAT A LEGISLATIVE DIVORCE GRANTED WITHOUT CAUSE BY THE
OREGON TERRITORIAL LEGISLATURE TO A LOCAL HOMESTEADER WAS VALID THOUGH
THE WIFE WAS NOT IN THE TERRITORY AND HAD HAD NO NOTICE.  THE COURT
RELIED ON THE HISTORIC PRACTICE OF INDIVIDUAL LEGISLATIVE DIVORCES. 
(FN8)  IT IS SIGNIFICANT, HOWEVER, THAT WHILE THE LITIGATION WAS IN
PROGRESS CONGRESS FORBADE TERRITORIES TO PASS "LOCAL" OR "SPECIAL"
DIVORCE LAWS.  24 STAT. 170, NOW 48 U.S.C. SEC. 1471. 

THE UNITED STATES ACQUIRED THE VIRGIN ISLANDS BY PURCHASE FROM
DENMARK IN 1917, (FN9) BUT IT WAS NOT UNTIL THE ORGANIC ACT OF 1936
THAT CONGRESS PROVIDED A COMPLETE GOVERNMENT - INCLUDING A LEGISLATIVE
ASSEMBLY.  THE ORGANIC ACT:  (1) LABELED THE ISLANDS AN "INSULAR
POSSESSION" OF THE UNITED STATES, 49 STAT. 1807, 48 U.S.C. SEC. 1405A;
(2) ENDOWED THE LEGISLATIVE ASSEMBLY (CONSISTING OF THE TWO PRE
EXISTING MUNICIPAL COUNCILS IN JOINT SESSION) WITH POWER TO ENACT LAWS
ON "ALL SUBJECTS OF LOCAL APPLICATION NOT INCONSISTENT WITH  ...  THIS
TITLE OR THE LAWS OF THE UNITED STATES MADE APPLICABLE TO SAID ISLANDS,
BUT NO LAW SHALL BE ENACTED WHICH WOULD IMPAIR RIGHTS EXISTING OR
ARISING BY VIRTUE OF ANY TREATY ENTERED INTO BY THE UNITED STATES, NOR
SHALL THE LANDS OR OTHER PROPERTY OF NONRESIDENTS BE TAXED HIGHER THAN
THE LANDS OR OTHER PROPERTY OF RESIDENTS," 49 STAT. 1811, 48 U.S.C.
SEC. 1405R; (3) ENACTED A DUE PROCESS CLAUSE FOR THE ISLANDS, 49 STAT.
1815, 48 U.S.C.  SEC. 1406G; AND (4) GAVE THE DISTRICT COURT
JURISDICTION OVER "ALL CASES OF DIVORCE," 49 STAT. 1814, 48 U.S.C. SEC.
1406(4). 

THE LEGISLATIVE ASSEMBLY WAS HELD ON A CHECKREIN BY A PRESIDENTIALLY
APPOINTED GOVERNOR WHO SHARED WITH THE PRESIDENT AN ABSOLUTE VETO OVER
LEGISLATION.  CONGRESS HAD THE CUSTOMARY RESERVED POWER TO ANNUAL
LEGISLATION.  49 STAT. 1810, 48 U.S.C. SEC. 1405O. 

BY VIRTUE OF THE 1936 ORGANIC ACT, THE LEGISLATIVE ASSEMBLY PASSED
THE 1944 DIVORCE LAW MAKING SIX WEEKS'"RESIDENCE" BY AN "INHABITANT"
SUFFICIENT FOR DIVORCE JURISDICTION.  (FN10)  IN 1952, THE COURT OF
APPEALS FOR THE THIRD CIRCUIT CONSTRUED "INHABITANT" AND "RESIDENCE" TO
IMPLY "DOMICILIARY" AND "DOMICILE."  BURCH V. BURCH, 195 F.2D 799.  THE
LEGISLATURE THEREUPON PROVIDED THAT SIX WEEKS' "PHYSICAL PRESENCE" WAS
ADEQUATE AS A BASIS FOR DIVORCE.  THE GOVERNOR VETOED THIS AMENDMENT. 
(FN11)  TO OVERCOME THE VETO, SEC. 9(A) WAS ENACTED.  BILL NO. 55, 17TH
LEGISLATIVE ASSEMBLY OF THE VIRGIN ISLANDS OF THE UNITED STATES, 3D
SESS., 1953. 

CONGRESS PASSED A REVISED ORGANIC ACT IN 1954.  ACT OF JULY 22, 1954,
68 STAT. 497, 48 U.S.C.A. SEC. 1541 ET SEQ. PREVIOUS TO THE
LEGISLATION, THIS COURT, ON JUNE 1, HAD DISMISSED ALTON V. ALTON,
SUPRA, FOR MOOTNESS.  THOUGH THE JUDGMENT BELOW WAS VACATED, THE COURT
OF APPEALS HAD EXPRESSED ITS VIEWS ON THE CONSTITUTIONALITY OF SEC.
9(A).  CERTAINLY NO INFERENCE FAVORABLE TO ITS VALIDITY CAN BE DRAWN
FROM THE REVISED ORGANIC ACT.  (FN12) 

IN GIVING CONTENT TO THE POWER TO PASS LEGISLATION HAVING "LOCAL
APPLICATION," TWO CONSIDERATIONS AT ONCE OBTRUDE.  THE PHRASE MOST
LIBERALLY INTERPRETED CAN BE NO BROADER THAN "ALL RIGHTFUL SUBJECTS OF
LEGISLATION."  (FN13)  YET IN THE ORGANIC ACTS OF THE "INCORPORATED"
TERRITORIES, ALASKA AND HAWAII, THERE IS SPECIFIC LIMITATION ON DIVORCE
JURISDICTION TO CASES WHERE THE PLAINTIFF HAS RESIDED IN SUCH TERRITORY
FOR AT LEAST TWO YEARS.  (FN14)  37 STAT. 514, 48 U.S.C. SEC. 45
(ALASKA); 31 STAT. 150, 48 U.S.C. SEC. 519 (HAWAII).  IT IS HARDLY
REASONABLE TO BELIEVE THAT CONGRESS WAS LESS CONCERNED WITH THE SCOPE
OF DIVORCE JURISDICTION IN THE "UNINCORPORATED" POSSESSION OF THE
VIRGIN ISLANDS, SO TEMPTINGLY NEAR THE MAINLAND, AND THAT IT INTENDED
TO GIVE THEM UNRESTRICTED FREEDOM IN THIS SENSITIVE FIELD OF
LEGISLATION.  THE VIRGIN ISLANDS DIVORCE LAW, WITH THE EXCEPTION OF
SUBSTANTIVE GROUNDS DRAWN FROM DANISH LAW, COPIED THAT OF ALASKA.  SEE
COMPILED LAWS OF THE TERRITORY OF ALASKA (1913) SECS. 1293-1306; CF.
TERRIL V. TERRILL, 2 ALASKA 475; WILSON V. WILSON, 10 ALASKA 616. 
SECONDLY, "LOCAL APPLICATION" OBVIOUSLY IMPLIES LIMITATION TO SUBJECTS
HAVING RELEVANT TIES WITHIN THE TERRITORY, (FN15) TO LAWS GROWING OUT
OF THE NEEDS OF THE ISLANDS AND GOVERNING RELATIONS WITHIN THEM.  AN
EXAMPLE IS PROVIDED BY PUERTO RICO V. SHELL CO., SUPRA, WHICH INVOLVED
THE VALIDITY OF A TERRITORIAL ANTITRUST LAW.  "IT REQUIRES NO ARGUMENT
TO DEMONSTRATE THAT A CONSPIRACY IN RESTRAINT OF TRADE WITHIN THE
BORDERS OF PUERTO RICO IS CLEARLY A LOCAL MATTER, AND THAT IT FALLS
WITHIN THE PRECISE TERMS OF THE POWER GRANTED  ...  ."  302 U.S., AT
261.  AND IN UPHOLDING THE POWER OF THE PHILIPPINE LEGISLATURE TO
DEPORT DANGEROUS ALIENS, MR. JUSTICE HOLMES, FOR THE COURT, OBSERVED
THAT "THE LOCAL GOVERNMENT HAS ALL CIVIL AND JUDICIAL POWER NECESSARY
TO GOVERN THE ISLANDS  ...  .  IT WOULD BE STRANGE IF A GOVERNMENT SO
REMOTE SHOULD BE HELD BOUND TO WAIT FOR THE ACTION OF CONGRESS IN A
MATTER THAT MIGHT TOUCH ITS LIFE UNLESS DEALT WITH AT ONCE AND ON THE
SPOT."  TIACO V. FORBES, 228 U.S., AT 557. 

IN SUCH LIGHT THE DECISIVE QUESTION IS:  WAS SEC. 9(A) CONCERNED WITH
THE NEEDS AND INTERESTS OF THE LOCAL POPULATION OR WAS IT, AS AMICUS
PRESSED UPON US, DESIGNED FOR EXPORT?  (FN16)  FOR THE PURPOSE OF
REGULATING DIVORCE OF VIRGIN ISLANDERS, IT MAY BE ABSTRACTLY RELEVANT
BUT PRACTICALLY IT HAS NO POINT.  (FN17)  THE VIRGIN ISLANDERS COULD OF
COURSE BRING THEMSELVES WITHIN THE 1944 LAW AS INTERPRETED IN BURCH V.
BURCH, 195 F.2D 799.  THEY WOULD HAVE NO DIFFICULTY IN MAKING THE
APPROPRIATE SHOWING OF CONNECTION WITH THE FORUM.  VIRGIN ISLANDERS
SEEKING DIVORCE ARE NOT SOJOURNERS, MERE TRANSIENTS IN THE ISLANDS. 
CF. BERGER V. BERGER, 210 F.2D 403 (C.A. 3D CIR.).  IT HARDLY NEEDS
PROOF TO READ THIS STATUTE AS ONE DESIGNED FOR PEOPLE OUTSIDE THE
VIRGIN ISLANDS.  THE VIRGIN ISLANDS LEGISLATIVE ASSEMBLY STATED THE
PURPOSE OF SEC. 9(A) WITH DISARMING FRANKNESS.  (FN18)  IT IS
INADMISSIBLE TO ASSUME THAT CONGRESS AUTHORIZED THE ASSEMBLY TO TRAFFIC
IN EASY DIVORCES FOR CITIZENS OF THE STATES AS A STIMULUS TO MONEY
MAKING BY THE ISLANDERS.  WHAT MR. CHIEF JUSTICE TAFT FOR THE COURT
SAID IN ANOTHER CONNECTION IS STRIKINGLY APPLICABLE HERE:  "ALL OTHERS
CAN SEE AND UNDERSTAND THIS.  HOW CAN WE PROPERLY SHUT OUR MINDS TO
IT?"  CHILD LABOR TAX CASE, 259 U.S. 20, 37.  BUT IT SOMETIMES HELPS TO
PROVE, AS WELL AS TO SEE, THE OBVIOUS.  (FN19)    IN 1950 THE VIRGIN
ISLANDS HAD 26,665 INHABITANTS IN ITS 133 SQUARE MILES; FOR AT LEAST 20
YEARS THE POPULATION HAD REMAINED RELATIVELY STATIC, AND THE 1952
CENSUS ESTIMATES INDICATE A SLIGHT DECLINE.  IN 1940, 34 DIVORCES WERE
GRANTED IN THE ISLANDS (1.4 PER 1,000 POPULATION).  IN 1951 THE FIGURE
HAD REACHED 312 (12.5 PER 1,000).  THIS, PER CAPITA, REPRESENTED THE
SECOND HIGHEST FIGURE FOR ANY STATE OR TERRITORY OF THE UNITED STATES. 
MOREOVER, THE VIRGIN ISLANDS FAR EXCEEDED ITS LEADER, NEVADA, IN RATIO
OF DIVORCES TO MARRIAGES.  NEVADA IN 1951 HAD 55.7 DIVORCES PER 1,000
POPULATION BUT AT THE SAME TIME HAD 289.5 MARRIAGE LICENSES PER 1,000. 
THUS WHILE NEVADA GRANTED 5 MARRIAGE LICENSES FOR EVERY DIVORCE, THE
VIRGIN ISLANDS WAS GRANTING 4 DIVORCES FOR EVERY 3 MARRIAGES.  LEST
THIS YEAR BE CONSIDERED UNREPRESENTATIVE, WE MAY LOOK TO 1950 AND 1952,
DURING WHICH THE ISLANDS GRANTED 2 FOR 1 AND 7 FOR 5 DIVORCES OVER
MARRIAGES RESPECTIVELY.  ONLY IN THE VIRGIN ISLANDS DID DIVORCES EXCEED
MARRIAGES DURING ANY OF THE YEARS UNDER CONSIDERATION.  THE NATIONAL
AVERAGE IN 1940 WAS 2.0 DIVORCES AND 12.1 MARRIAGES PER 1,000
POPULATION.  APART FROM SOME WARTIME FLUCTUATIONS, THE RATIOS HAVE BEEN
QUITE STABLE.  IN 1951 THE AVERAGE WAS 2.5 DIVORCES AND 10.4
MARRIAGES.  THUS, WHILE THE VIRGIN ISLANDS WAS SOMEWHAT BELOW THE
NATIONAL AVERAGE FOR MARRIAGES IN 1951, IT WAS 5 TIMES THE NATIONAL
AVERAGE FOR DIVORCE. 

IN 1952 THE VIRGIN ISLANDS HIT ITS PEAK OF DIVORCES.  THREE HUNDRED
AND FORTY-THREE WERE GRANTED (14.3 PER 1,000) AS OPPOSED TO ONLY 237
MARRIAGES.  BUT THE DECISIONS IN ALTON V. ALTON REDUCED THE DIVORCE
FIGURE TO 236 IN 1953, AND ONLY 11 DIVORCES WERE GRANTED BETWEEN
JANUARY AND NOVEMBER OF 1954. 

THE EXTRAORDINARY RATE OF DIVORCE AND THE DISPROPORTION BETWEEN
MARRIAGES AND DIVORCES RAISE CONTROLLING DOUBTS OF THE "LOCAL"
APPLICATION OF SEC. 9(A), ESPECIALLY IN THE CONTEXT OF ITS LEGISLATIVE
HISTORY.  SUCH DOUBTS ARE CONFIRMED BY FURTHER INQUIRY.  THE 1950
CENSUS REVEALS THAT ONLY 416 WIDOWED OR DIVORCED MEN AND 1,105 WIDOWED
OR DIVORCED WOMEN RESIDED IN THE ISLANDS.  (FN20)  THUS THE NUMBER OF
DIVORCES IN 1951 NEARLY EQUALLED THE TOTAL WIDOWED OR DIVORCED MALE
POPULATION OF THE ISLANDS.  REMARRIAGE CAN SERVE ONLY AS A PARTIAL
EXPLANATION.  PETITIONER'S BRIEF REVEALS A SECOND SURPRISING
DISPROPORTION.  ALTHOUGH THE TWO COMPONENTS OF THE ISLANDS (THE
MUNICIPALITY OF ST. CROIX AND THE MUNICIPALITY OF ST. THOMAS AND ST.
JOHN) ARE NEARLY EQUAL IN POPULATION, AND ALTHOUGH IN 1940 ST. CROIX
GRANTED 18 DIVORCES AND ST. THOMAS AND ST. JOHN 16, BY 1952 ST. CROIX
HAD INCREASED ONLY TO 33, WHEREAS ST. THOMAS AND ST. JOHN HAD GONE UP
NEARLY 2,000% TO 310.  (FN21) IT IS NOT INAPPROPRIATE TO TAKE JUDICIAL
NOTICE OF THE CONSIDERABLY GREATER TOURIST FACILITIES ON THE ISLANDS OF
ST. THOMAS AND ST. JOHN.  (FN22) 

WE HAVE NO INFORMATION AS TO THE DURATION OF RESIDENCE OF DIVORCEES
UNDER THE QUESTIONED LAW.  BUT WE ARE ADVISED THAT CONTEST OF
JURISDICTION OCCURRED IN ONLY 1% OF THE 310 CASES CONCLUDED IN ST.
THOMAS AND ST. JOHN IN 1952 AND THAT CONTEST OF THE MERITS WAS NO MORE
FREQUENT.  A GENERAL APPEARANCE - WHICH STRIPS THE COURT OF ITS POWER
TO INQUIRE FURTHER INTO DOMICILE - BUT NO CONTEST AS TO ANY ISSUE, WAS
THE PRACTICE IN MOST CASES.  THE CLEAR IMPACT OF THE LEGISLATION, EVEN
IF WE DISREGARD THE CANDID EXPLANATIONS OF LOCAL POLITICAL, COMMERCIAL
AND LEGAL SOURCES (FN23) AND THE RAPID DROP IN DIVORCES FOLLOWING THE
INITIAL DECISION OF UNCONSTITUTIONALITY, IS TO PROVIDE A CONVENIENT
FORUM FOR PROSPEROUS PERSONS WITH SUBSTANTIAL CONNECTIONS TO THE
MAINLAND, WHO DESIRE TO SEVER THEIR MARITAL TIES WHILE VACATIONING. 
THE COMMISSIONER IN THE CASE AT BAR DID NOT EVEN ASK PETITIONER WHERE
SHE LIVED IN THE VIRGIN ISLANDS. 

THE LEGISLATIVE ASSEMBLY IS MUCH LESS LIBERAL TOWARD WOULD-BE
VOTERS.  (FN24)  ONE-YEAR DOMICILE IS REQUIRED.  FURTHER, A PERSONAL
PROPERTY OR INCOME TAX ON PERSONS PHYSICALLY PRESENT FOR SIX WEEKS BUT
WITH NO STRONGER LINK TO THE ISLANDS WOULD NO DOUBT BE STRONGLY
CHALLENGED AND OF QUESTIONABLE VALIDITY. 

IN THE CIRCUMSTANCES, WE CANNOT CONCLUDE THAT IF CONGRESS HAD
CONSCIOUSLY BEEN ASKED TO GIVE THE VIRGIN ISLANDS LEGISLATIVE ASSEMBLY
POWER TO DO WHAT NO STATE HAS EVER ATTEMPTED, IT WOULD HAVE DONE SO.
AFFIRMED. 

FN1  SECTION 8 DEALS WITH ANNULMENT AND IS NOT HERE RELEVANT. 
MARRIAGE CONTRACT OR FOR A LEGAL SEPARATION THE PLAINTIFF THEREIN MUST
BE AN INHABITANT OF THE DISTRICT AT THE COMMENCEMENT OF THE ACTION AND
FOR SIX WEEKS PRIOR THERETO, WHICH RESIDENCE SHALL BE SUFFICIENT TO
GIVE THE COURT JURISDICTION WITHOUT REGARD TO THE PLACE WHERE THE
MARRIAGE WAS SOLEMNIZED OR THE CAUSE OF ACTION AROSE."  BILL NO. 14,
8TH LEGISLATIVE ASSEMBLY OF THE VIRGIN ISLANDS OF THE UNITED STATES,
SESS., 1944. 

LEGISLATIVE ASSEMBLY OF THE VIRGIN ISLANDS OF THE UNITED STATES, 3D
SESS., 1953. 

FN2  SECTION 7(8), BILL NO. 14, 8TH LEGISLATIVE ASSEMBLY OF THE
VIRGIN ISLANDS OF THE UNITED STATES, SESS., 1944. 

FN3  BEGINNING WITH DOWNES V. BIDWELL, 182 U.S. 244, 287-344; SEE
COUDERT, THE EVOLUTION OF THE DOCTRINE OF TERRITORIAL INCORPORATION, 26
COL. L. REV. 823. 

FN4  IN BALZAC V. PORTO RICO, 258 U.S. 298. 

FN5 BOTH WERE DISTINGUISHED FROM STATES.  "A STATE, EXCEPT AS THE
FEDERAL CONSTITUTION OTHERWISE REQUIRES, IS SUPREME AND INDEPENDENT
...  .  A DEPENDENCY (HERE THE PHILIPPINES) HAS NO GOVERNMENT BUT THAT
OF THE UNITED STATES, EXCEPT IN SO FAR AS THE UNITED STATES MAY PERMIT
...  .  OVER SUCH A DEPENDENCY THE NATION POSSESSES THE SOVEREIGN
POWERS OF THE GENERAL GOVERNMENT PLUS THE POWERS OF A LOCAL OR A STATE
GOVERNMENT IN ALL CASES WHERE LEGISLATION IS POSSIBLE."  CINCINNATI
SOAP CO. V. UNITED STATES, 301 U.S. 308, 317. 

FN6  E.G., 37 STAT. 514, 48 U.S.C. SEC. 77 (ALASKA). 

FN7  39 STAT. 964, 48 U.S.C. SEC. 821 (PUERTO RICO); 68 STAT. 500, 48
U.S.C.A. SEC. 1574(A) (VIRGIN ISLANDS); 64 STAT. 387, 48 U.S.C. SEC.
1423A (GUAM). 

FN8  "  ... THE GRANTING OF DIVORCES WAS A RIGHTFUL SUBJECT OF
LEGISLATION ACCORDING TO THE PREVAILING JUDICIAL OPINION OF THE
COUNTRY, AND THE UNDERSTANDING OF THE PROFESSION, AT THE TIME THE
ORGANIC ACT OF OREGON WAS PASSED BY CONGRESS, WHEN EITHER OF THE
PARTIES DIVORCED WAS AT THE TIME A RESIDENT WITHIN THE TERRITORIAL
JURISDICTION OF THE LEGISLATURE."  125 U.S., AT 209. 

FN9  THE LOCAL LAW AS IT HAD EXISTED UNDER DANISH RULE WAS CONTINUED
IN EFFECT, 39 STAT.  1132, 48 U.S.C. SEC. 1392, SUBJECT TO CHANGE BY
THE TWO COLONIAL COUNCILS, THE INSTRUMENTS OF MUNICIPAL GOVERNMENT FOR
THE TWO DISTRICTS OF THE ISLANDS.  PRESIDENTIAL APPROVAL OF ANY CHANGE
IN THIS BODY OF LAW WAS REQUIRED.  IBID.  EACH COLONIAL COUNCIL
SUBSEQUENTLY PASSED A DIVORCE LAW, VERBALLY DRAWN FROM THAT OF ALASKA. 
BURCH V. BURCH, 195 F.2D 799, 805-806. 

FN10  SEE NOTE 1, SUPRA. 

FN11  HIS OBJECTION WAS THAT THE AMENDMENT MADE PHYSICAL PRESENCE
SUFFICIENT IN BOTH EX PARTE AND CONTESTED ACTIONS. 

FN12  FOR THE FIRST TIME, THE LEGISLATION EXPLICITLY CHARACTERIZED
THE VIRGIN ISLANDS AN "UNINCORPORATED TERRITORY." 

THE SENATE REPORT SPOKE AS FOLLOWS:  "S. 3378 DECLARES THE VIRGIN
ISLANDS TO BE 'AN UNINCORPORATED TERRITORY OF THE UNITED STATES OF
AMERICA.'  THUS, THEIR LEGAL STATUS WOULD BE DISTINCT AND WHOLLY
DIFFERENT FROM THAT OF HAWAII AND ALASKA, WHICH ARE INCORPORATED
TERRITORIES  ...  .  STATEHOOD HAS UNVARYINGLY BEEN THE DESTINY OF ALL
INCORPORATED TERRITORIES  ...  .  ON THE OTHER HAND, THERE IS NO
PRECEDENT  ...  FOR STATEHOOD FOR A POLITICAL, GEOGRAPHIC, AND ECONOMIC
UNIT SUCH AS THE VIRGIN ISLANDS WOULD BECOME UNDER S. 3378  ...  .  A
STILL HIGHER DEGREE OF SELF-GOVERNMENT AND AUTONOMY IS, OF COURSE,
POSSIBLE WITHIN THAT FRAMEWORK - SUCH AS AN ELECTIVE GOVERNOR WHEN THE
PEOPLE ARE READY FOR IT."  S. REP. NO. 1271, 83D CONG., 2D SESS. 8. 
CONGRESSMAN POWELL, ON THE OTHER HAND, CRITICIZED "  ...  THE
UNWARRANTED FAILURE OF THE BILL TO PROVIDE FOR ANY ADVANCE WHATSOEVER
TOWARD INCREASED SELF-GOVERNMENT."  100 CONG. REC. 8664. 

FN13  SEE NOTE 12, SUPRA.  THE SENATE REPORT ON THE 1936 ORGANIC ACT
GIVES SOME IDEA OF THE LEGISLATIVE PURPOSE:  "  ...  THE INHABITANTS OF
THE VIRGIN ISLANDS  ...  ARE CAPABLE OF MANAGING THEIR LOCAL AFFAIRS. 
UNFORTUNATELY, THE ISLANDS ARE NOT YET ECONOMICALLY SELF-SUPPORTING. 
HENCE IT HAS BEEN NECESSARY TO PROVIDE FOR AN AMOUNT OF FEDERAL CONTROL
OVER LOCAL AFFAIRS COMMENSURATE WITH CONTINUING EXPENDITURES OF FEDERAL
FUNDS TO SUBSIDIZE THE LOCAL GOVERNMENT  ...  .  MATTERS OF PURELY
LOCAL CONCERN ARE PLACED WITHIN LOCAL LEGISLATIVE POWER.  THE LEVYING
OF LOCAL TAXES AND THE EXPENDITURE OF LOCAL REVENUE ARE AUTHORIZED.  IT
HAS NOT BEEN DEEMED WISE TO GIVE THE LOCAL GOVERNMENT POWER TO INCUR
BONDED INDEBTEDNESS SO LONG AS LOCAL REVENUE IS INSUFFICIENT TO PAY THE
ENTIRE COST OF LOCAL GOVERNMENT.  LOCALLY ENACTED BILLS MAY BE VETOED
BY THE GOVERNOR."  S. REP. NO. 1974, 74TH CONG., 2D SESS. 2. 

FN14  FOR THE HISTORY OF THE ALASKAN PROVISION, SEE 48 CONG. REC.
5267-5270, 5293, 5297-5298. 

FN15  OF COURSE A SUIT FOR DAMAGES BROUGHT BY A RESIDENT OF THE
VIRGIN ISLANDS FOR AN INJURY OCCURRING ON THE MAINLAND, OR A SUIT
AGAINST A DEFENDANT SERVED IN THE VIRGIN ISLANDS ARISING OUT OF A
COMMERCIAL TRANSACTION CONNECTING BOTH THE VIRGIN ISLANDS AND THE
MAINLAND, WOULD CLEARLY CONTAIN A RELEVANT TIE AMPLY AFFORDING
JURISDICTION TO THE COURTS OF THE VIRGIN ISLANDS. 

FN16  WE ARE DEALING HERE WITH THE BEARING OF THE STATUTE ON
CONSENSUAL DIVORCES.  SO FAR AS THESE ARE CONCERNED SEC. 9(A) IS AN
ENTIRETY, FOR IN ITS APPLICATION THE FIRST PART OF THE SECTION
ACCOMPLISHES PRECISELY THE SAME THING AS THE SECOND.  UNDER OUR SYSTEM
OF LAW A JUDGE IS NOT CHARGED WITH THE ROLE OF AN ADVERSARY PARTY, AND
AS SUCH CALLED UPON TO ASSUME RESPONSIBILITY FOR REBUTTING A STATUTORY
PRESUMPTION. 

FN17  CF. PEOPLE V. DANIELS, 6 UTAH 288, 293, 22 P. 159, 160, "  ...
AS TO THE EXTENT TO WHICH THE LEGISLATURE MAY ACT ON A RIGHTFUL
SUBJECT, WHEN THE LIMIT IS NOT EXPRESSLY FIXED, THE COURT MUST
ASCERTAIN THE LIMIT AND DETERMINE WHETHER THE LAW IS WITHIN IT.  TO
ILLUSTRATE:  ...  DIVORCE IS ALSO A RIGHTFUL SUBJECT OF LEGISLATION,
BUT A LAW GIVING ANY MARRIED PERSON WHO MIGHT APPLY TO THE COURT A
RIGHT TO A DIVORCE WITHOUT CAUSE WOULD BE INVALID." 

FN18  THREE MEMBERS OF THE LEGISLATIVE ASSEMBLY ADDRESSED THEMSELVES
TO THE REASONS FOR CHANGING THE RESULT OF THE COURT OF APPEALS IN BURCH
V. BURCH, SEE P. 8, SUPRA. 

MR. ROHLSEN SPOKE WITH AUTHORITY AS MEMBER IN CHARGE OF THE BILL:
"THE DIVORCE BUSINESS IN THE VIRGIN ISLANDS IS QUITE A THRIVING
BUSINESS.  I UNDERSTAND THAT THIS BUSINESS PROVIDES QUITE AN INCOME FOR
THE MUNICIPALITIES SINCE IT IS ESTIMATED THAT OVER $300,000 A YEAR IS
SPENT WITHIN THE VIRGIN ISLANDS BY PERSONS WHO HAVE BEEN USING THE
FACILITIES OF OUR DIVORCE LAW TO PUT THEIR HOMES IN ORDER. 
UNFORTUNATELY, BECAUSE OF AN ERROR IN THE DRAFT OF ORIGINAL LAW  ...
AND BECAUSE OF THE GOVERNOR'S ATTITUDE  ...  IT NOW BECOMES NECESSARY
FOR US TO CONSIDER ANOTHER AMENDMENT WHICH IS DESIGNED TO ENHANCE THIS
UPCOMING BUSINESS IN THE ISLANDS  ...  .  I AM NOT TRYING TO SPEAK FOR
OR AGAINST THE MORAL ETHICS OF DIVORCE BECAUSE, AS FAR AS I AM
CONCERNED, THOSE ISSUES WERE DENIED WHEN THE STATUTE WAS ENACTED MAKING
IT POSSIBLE FOR PEOPLE TO COME HERE FOR DIVORCES  ...  . I CONSIDER
THIS MATTER AS A MEANS OF ENHANCING THE ECONOMY OF OUR ISLANDS  ...
." 

"THE PEOPLE OF THE VIRGIN ISLANDS HAVE ENJOYED GREAT FINANCIAL
BENEFITS BY AN INFLUX OF PEOPLE TO THESE ISLANDS FOR THE PURPOSE OF
GETTING DIVORCED  ...  .  I RECOMMEND TO MY COLLEAGUES THIS PIECE OF
LEGISLATION FOR THEIR FAVORABLE CONSIDERATION INASMUCH AS THEY CAN SEE
THE DISADVANTAGE IN WHICH THE MUNICIPALITIES HAVE BEEN PLACED BY NOT
HAVING THE DIVORCE COURT FUNCTIONING AT THE PRESENT TIME."  PROCEEDINGS
AND DEBATES, 17TH LEGISLATIVE ASSEMBLY OF THE VIRGIN ISLANDS OF THE
UNITED STATES, 3D SESS., 1953, PP. 46-47, 66-67. 

MOVING ADOPTION OF THE EARLIER VERSION OF SEC. 9(A), WHICH THE
GOVERNOR VETOED BUT WHICH DOES NOT, SO FAR AS CONCERNS OUR PROBLEM,
DIFFER FROM SEC. 9(A), MR. RICHARDS STATED: "  ...  PERSONALLY I DO NOT
SEE WHY THIS ASSEMBLY SHOULD BE DELIBERATING SO EXTENSIVELY ON THIS
AMENDMENT.  ONLY ABOUT 2% OF THE DIVORCES HEARD AND THE DECISIONS
RENDERED IN THE DISTRICT COURT AFFECTS THE RESIDENTS OF THE VIRGIN
ISLANDS.  I SHOULD CONCLUDE THAT THIS LAW WAS ENACTED NOT TO FACILITATE
THE BONA FIDE RESIDENTS OF THE VIRGIN ISLANDS BUT IN ORDER TO PROVIDE
AS IT WERE SOURCE OF ECONOMIC ASSET TO THE ISLANDS BY WHICH PEOPLE ARE
BROUGHT TO OUR SHORES AND CONTRIBUTE TO THE GENERAL ECONOMIC WELFARE OF
THE ISLANDS  ...  .  I FEEL PROUD TO SEE THAT ONLY A POSSIBLE OF 2 OR
THREE RESIDENTS) OF THE VIRGIN ISLANDS ARE INVOLVED IN DIVORCE CASES A
YEAR."  PROCEEDINGS AND DEBATES, 17TH LEGISLATIVE ASSEMBLY OF THE
VIRGIN ISLANDS OF THE UNITED STATES, 2D SESS., 1953, P. 10. 

MR. HEYWOOD, IN DISCUSSING THE EARLIER AMENDMENT, OBSERVED:  "THIS
BILL NO. 54 BEFORE US TODAY APPEARS TO BE IN MY OPINION, A DEVICE AIMED
PRIMARILY AT TRANSIENTS IN THE ISLANDS  ... .  I AM VERY WELL AWARE OF
THE VOLUME OF DIVORCE BUSINESS BEING CARRIED ON IN THESE ISLANDS  ...
.  I HAVE HEARD THAT THERE IS ANTICIPATED A HALF A MILLION DOLLARS
BUSINESS IN THIS CURRENT YEAR WHICH WILL BE DISTRIBUTED AMONG LAWYERS,
HOTEL BILLS, TAXI CABS AND OTHER BUSINESS VENTURES IN THE COMMUNITY." 
ID., AT P. 8.    FN19  THE STATISTICS WHICH FOLLOW ARE DERIVED FROM
THESE SOURCES:  UNITED STATES BUREAU OF THE CENSUS, STATISTICAL
ABSTRACT OF THE UNITED STATES:  1954, PP. 9, 63, 85, 940, 942; UNITED
STATES DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SUMMARY OF
MARRIAGE AND DIVORCE STATISTICS, UNITED STATES, 1952, PP. 45, 52-53;
UNITED STATES DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, MONTHLY
VITAL STATISTICS REPORT, VOL. 3, NO. 12, FEB. 15, 1955, P. 7; BRIEF FOR
PETITIONER, P. 53. 

FN20  UNITED STATES BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE
UNITED STATES: 1954, P. 939. 

FN21  BRIEF FOR PETITIONER, P. 53.    FN22 SEE VIRGIN ISLANDS REPORT,
SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, 83D CONG., 2D SESS.
125-127; VIII VIRGIN ISLANDS MAGAZINE (SPECIAL EDITION 1954) 7 ET SEQ.;
MURRAY, THE COMPLETE HANDBOOD OF THE VIRGIN ISLANDS (1951), 12-100. 

FN23  THE ST. CROIX CHAMBER OF COMMERCE NEWSLETTER FOR FEB. 1, 1954,
CITED THE "CHANGE IN THE DIVORCE SITUATION" AS ONE REASON FOR THE
TOURIST SLUMP DURING THE PREVIOUS SEASON.  DISTRICT JUDGE MOORE, WHO
DECIDED BOTH ALTON V. ALTON, SUPRA, AND THIS CASE, WROTE THE SENATE
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS:  "  ...  THE PRESENT COURT
IS NOT UNSYMPATHETIC TO THE FACT THAT THE FAILURE TO GRANT THESE
DIVORCES HAS AFFECTED THE ECONOMIC STATUS OF BOTH LAWYERS AND GUEST
HOUSE KEEPERS  ... ."  VIRGIN ISLANDS REPORT, SENATE COMMITTEE ON
INTERIOR AND INSULAR AFFAIRS, 83D CONG., 2D SESS. 4, 54. 

FN24  "(B)  FOR THE PURPOSE OF THIS LAW 'RESIDENTS OF THE VIRGIN
ISLANDS' SHALL BE PERSONS WHO HAVE MAINTAINED LEGAL RESIDENCE IN THE
VIRGIN ISLANDS FOR A PERIOD OF ONE YEAR NEXT PRECEDING THE DATE OF THE
ELECTION, AND IN THE DISTRICT IN WHICH THEY DESIRE TO VOTE FOR A PERIOD
OF SIXTY DAYS NEXT PRECEDING THE ELECTION.  IN ALL CASES OF DOUBT AS TO
LEGAL RESIDENCE, THE BOARD SHALL REQUEST THE REGISTRANT TO SUBMIT
SUBSTANTIAL AND SATISFACTORY PROOF THAT THE SAID REGISTRANT HAS
FULFILLED THE LEGAL RESIDENCE REQUIREMENT.  THE DOMICILE, WHICH IS THE
REGISTRANT'S LEGAL RESIDENCE, SHALL BE DETERMINED IN ACCORDANCE WITH
THE FOLLOWING RULES: 

"1)  EVERY PERSON HAS A DOMICILE. 

"2)  THERE CAN BE BUT ONE DOMICILE. 

"3)  LEGAL RESIDENCE OR DOMICILE IS THE PLACE WHERE A PERSON
HABITUALLY RESIDES WHEN NOT CALLED ELSEWHERE TO WORK OR FOR SOME OTHER
TEMPORARY PURPOSE AND TO WHICH SUCH PERSON RETURNS IN SEASON FOR REST. 

"4)  LEGAL DOMICILE OR RESIDENCE MAY BE CHANGED BY JOINDER OF ACT AND
INTENT. 

"5)  A DOMICILE CANNOT BE LOST UNTIL A NEW ONE HAS BEEN ACQUIRED. 

"THIS SUBSECTION SHALL BE STRICTLY ENFORCED BY THE BOARD."  BILL NO.
86, 18TH LEGISLATIVE ASSEMBLY OF THE VIRGIN ISLANDS OF THE UNITED
STATES, 2D SESS., 1954, C. II, SEC. 1. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE REED
JOIN, DISSENTING. 

"A "FUNDAMENTAL TENET OF JUDICIAL REVIEW," THE LATE MR. JUSTICE
JACKSON SAID, IS THAT "NOT THE WISDOM OR POLICY OF LEGISLATION, BUT
ONLY THE POWER OF THE LEGISLATURE, IS A FIT SUBJECT FOR CONSIDERATION
BY THE COURTS."  JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941),
P. 81.  SOME 10 YEARS LATER IN HARISIADES V. SHAUGHNESSY, 342 U.S. 580,
590, HE ADDED THAT "JUDICIALLY WE MUST TOLERATE WHAT PERSONALLY WE MAY
REGARD AS A LEGISLATIVE MISTAKE." 

I MUST DISSENT HERE BECAUSE I FEEL THAT THE MAJORITY, IN STRIKING
DOWN THE VIRGIN ISLANDS' DIVORCE LAW, IS SUBSTITUTING ITS WISDOM AND
POLICY FOR THAT OF THE CONGRESS.  I FAIL TO SEE HOW THE VIRGIN ISLANDS'
FAILURE TO REQUIRE - IN FORM AS WELL AS SUBSTANCE - JURISDICTIONAL
REQUIREMENTS FOR DIVORCE EQUAL TO THOSE PRESENTLY IN VOGUE IN THE
STATES IS ANY MORE THAN A "LEGISLATIVE MISTAKE."  THE COURT, HOWEVER,
IN THE FACE OF AN UNBROKEN NATIONAL HISTORY OF GRANTING TO OUR
TERRITORIES FULL AUTHORITY IN LEGISLATING ON SUCH SUBJECTS, DECLARES
THE ISLANDS' DIVORCE LAW INVALID ON THE GROUND THAT, RATHER THAN BEING
"OF LOCAL APPLICATION," (FN1) IT WAS "DESIGNED FOR EXPORT."  IN SO
DOING, THE COURT DOES VIOLENCE TO THE COMMAND OF THE CONGRESS; IT
OVERRIDES A LONG LINE OF ITS OWN DECISIONS, AS WELL AS THE UNANIMOUS
OPINION IN THIS CASE OF THE SEVEN JUDGES OF THE COURT OF APPEALS FOR
THE THIRD CIRCUIT, EACH OF WHOM HAS HAD LONG EXPERIENCE WITH
TERRITORIAL ACTS; AND, FINALLY, IT CONFOUNDS THE FUNDAMENTAL LAW
GOVERNING OUR TERRITORIES WHICH HERETOFORE HAS GONE UNQUESTIONED. 

WHAT IS THE LEGISLATIVE HISTORY? 

THE LEGISLATIVE HISTORY OF THE "SUBJECTS OF LOCAL APPLICATION"
PROVISION, ON WHICH THE COURT GROUNDS ITS ACTION, SHOWS BEYOND A DOUBT
THAT TODAY'S CONSTRUCTION WAS NEVER DREAMED OF BY THE CONGRESS. 

THE CONGRESS FIRST USED CLOSELY SIMILAR LANGUAGE IN 1850.  THE
ORGANIC ACT FOR THE TERRITORY OF NEW MEXICO PROVIDED THAT "THE
CONSTITUTION, AND ALL LAWS OF THE UNITED STATES WHICH ARE NOT LOCALLY
INAPPLICABLE, SHALL HAVE THE SAME FORCE AND EFFECT WITHIN THE SAID
TERRITORY OF NEW MEXICO AS ELSEWHERE WITHIN THE UNITED STATES."  9
STAT. 452.  THE ACT ALSO DECLARED THAT THE LEGISLATIVE POWER OF THE
TERRITORY COVERED "ALL RIGHTFUL SUBJECTS OF LEGISLATION, CONSISTENT
WITH THE CONSTITUTION OF THE UNITED STATES AND THE PROVISIONS OF THIS
ACT."  9 STAT. 449. 

FIFTY YEARS LATER, THE FORAKER ACT, 31 STAT. 77, ESTABLISHING A CIVIL
GOVERNMENT FOR PUERTO RICO, USED THE SAME "NOT LOCALLY INAPPLICABLE"
PROVISION WHEN EXTENDING THE LAWS OF THE UNITED STATES TO THAT ISLAND. 
WITH REFERENCE TO THE POWERS OF THE LOCAL LEGISLATURE, THE ACT REPEATED
THIS PHRASING, EXTENDING THE LOCAL AUTHORITY TO "ALL MATTERS OF A
LEGISLATIVE CHARACTER NOT LOCALLY INAPPLICABLE ...  ," (FN2) 31 STAT.
83, INSTEAD OF "RIGHTFUL SUBJECTS OF LEGISLATION."  AFTER THE FORAKER
ACT, THE WORDS EVOLVED BUT LITTLE, UNTIL NOW, WITH THE DROPPING OF THE
DOUBLE NEGATIVE, THE PHRASE HAS BECOME "SUBJECTS OF LOCAL
APPLICATION." 

THE MAJORITY DOES NOT DISPUTE THAT THE LEGISLATIVE POWER OF THE
VIRGIN ISLANDS IS AT LEAST ON A PAR WITH THAT OF PUERTO RICO UNDER THE
FORAKER ACT.  IT DOES, HOWEVER, CONTEND THAT THE PHRASE "OF LOCAL
APPLICATION" REPRESENTS A POSITIVE LIMITATION ON THE POWERS OF THE
ISLANDS BELOW THAT OF A STATE.  THAT THE VIRGIN ISLANDS HAS NOT THE
QUANTUM OF SELF-GOVERNMENT WHICH A STATE POSSESSES IS BEYOND QUESTION. 
ALL LOCAL LAWS ARE SUBJECT TO THE ABSOLUTE VETO SHARED BY THE
APPOINTIVE GOVERNOR AND THE PRESIDENT OF THE UNITED STATES.  THERE ARE
SPECIFIC LIMITATIONS ON THE ISLANDS' LEGISLATIVE POWER.  (FN3)  AND
CONGRESS HAS SPECIFICALLY PROVIDED THAT IT MAY ANNUL ANY LOCAL LAW.  48
U.S.C. SEC. 1574(C).  HOWEVER, THE ISLANDS' DIVORCE LAW HAS BEEN
NEITHER VETOED NOR ANNULLED. 

AS THE MAJORITY POINTS OUT, "THE PHRASE (OF LOCAL APPLICATION) MOST
LIBERALLY INTERPRETED CAN BE NO BROADER THAN 'ALL RIGHTFUL SUBJECTS OF
LEGISLATION.'"  ILLIBERALLY INTERPRETED, HOWEVER, IT CAN BE NO
NARROWER.  THE SENATE REPORT ON THE FORAKER BILL COULD NOT POSSIBLY BE
CLEARER IN SAYING, WITH REFERENCE TO THE "NOT LOCALLY INAPPLICABLE"
PHRASE, THAT THE "LEGISLATIVE ASSEMBLY  ...  SHALL HAVE COMPLETE POWER,
SUBJECT TO THE VETO OF THE GOVERNOR AND THE SUPERVISION OF CONGRESS, TO
LEGISLATE UPON ALL RIGHTFUL SUBJECTS OF LEGISLATION."  S. REP. NO. 249,
56TH CONG., 1ST SESS. 3. 

WHAT THEN, HAS THIS COURT SAID, IS THE MEANING OF "RIGHTFUL SUBJECTS
OF LEGISLATION"?  WE NOTE THAT THE MAJORITY CITES PEOPLE V. DANIELS, 6
UTAH 288, 22 P. 159, A DECISION BY THE TERRITORIAL COURT OF UTAH, THAT
THE TERRITORY WAS "RESTRICTED" TO "RIGHTFUL SUBJECTS OF LEGISLATION." 
IN COPE V. COPE, 137 U.S. 682, 684, DECIDED THE FOLLOWING YEAR, THIS
COURT HELD "WITH THE EXCEPTIONS NOTED IN THIS SECTION (SUCH AS 'NO LAW
SHALL BE PASSED INTERFERING WITH THE PRIMARY DISPOSITION OF THE SOIL'),
THE POWER OF THE TERRITORIAL LEGISLATURE WAS APPARENTLY AS PLENARY AS
THAT OF THE LEGISLATURE OF A STATE."  (FN4) 

NOR WERE THE CARIBBEAN TERRITORIES PLACED ON A FOOTING DIFFERENT FROM
THAT OF OUR OTHER POSSESSIONS.  THE DEBATES SHOW THAT CONGRESS WAS NOT
UNAWARE OF THE NATURE OF THE POWER IT WAS GRANTING TO THE LOCAL
LEGISLATORS IN OUR CARIBBEAN POSSESSIONS.  RATHER THAN ASSERTING THAT
PUERTO RICO HAD BEEN GIVEN LESS POWER, ONE CONGRESSMAN COMPLAINED THAT
IT HAD BEEN GIVEN MORE POWER THAN HAD BEEN GRANTED TO ANY TERRITORY. 
54 CONG. REC.  3008-3009.  LIKEWISE, THE DEBATES ON THE FORAKER ACT AND
ITS SUCCESSORS INDICATE THAT THE CONGRESS THOUGHT THAT OUR CARIBBEAN
POSSESSIONS HAD, WITHIN SPECIFIC RESTRICTIONS, ATTAINED SELF
GOVERNMENT, 54 CONG. REC. 3074; 53 CONG. REC. 7478.  IN ONE OF THE
DEBATES, AT 33 CONG. REC. 3079, ONE SENATOR SAID, "CONGRESS, HAVING
SUPREME LEGISLATIVE POWER OVER THE TERRITORIES AND NOT BEING EXPRESSLY
RESTRICTED BY THE CONSTITUTION, CAN DELEGATE POWER TO LOCAL TRIBUNALS
FOR SELF-GOVERNMENT, CORRESPONDING WITH THE POWERS OF THE STATES OF THE
UNION AS TO LEGISLATION  ...  .  CONGRESS HAS CHOSEN TO LEAVE PUERTO
RICO (AND HAWAII) UNDER THE CONTROL OF THEIR LOCAL LAWS."  IN THE
DEBATES SOMEWHAT EARLIER, THE VIEW WAS EXPRESSED THAT THERE WAS NO
"RADICAL DIFFERENCE" BETWEEN PUERTO RICO AND THE OTHER TERRITORIES, 33
CONG. REC. 3084, AND THAT PUERTO RICO WAS TO RECEIVE LOCAL SELF
GOVERNMENT, 53 CONG. REC. 8470.  THE DEBATES PROVIDE FURTHER EVIDENCE
THAT THE PHRASE "OF LOCAL APPLICATION," LIKE ITS ANCESTRAL PROVISIONS,
WAS NOT MEANT AS A LIMITATION ON THE POWERS OF THE TERRITORIES.  AGAIN
AND AGAIN IN THESE DEBATES AND COMMITTEE REPORTS, LIMITATIONS ON SELF
GOVERNMENT FOR THE TERRITORIES ARE LISTED.  AN EXAMINATION OF THESE
LISTINGS SHOWS THEM TO BE QUITE COMPLETE, BUT NOWHERE DOES THE PHRASE
"OF LOCAL APPLICATION" OR ITS EQUIVALENT APPEAR AMONG THEM.  53 CONG.
REC.  7479; H.R. REP. NO. 163, 62D CONG., 1ST SESS., P. 2 (WITH
REFERENCE TO ALASKA).  IN FACT, NOWHERE IN THE HUNDREDS OF PAGES OF
LEGISLATIVE HISTORY OF THE ACTS OF CONGRESS USING THIS PHRASE DOES IT
APPEAR THAT CONGRESS EVER CONTEMPLATED THAT "OF LOCAL APPLICATION"
MIGHT BE INTERPRETED AS A SPECIFIC LIMITATION. 

THE GOVERNMENT OF OUR CARIBBEAN POSSESSIONS HAS BEEN MODIFIED BY
CONGRESS ON VARIOUS OCCASIONS, ALWAYS DEFINITELY IN THE DIRECTION OF
MORE SELF-GOVERNMENT.  SEE H.R. REP. NO. 461, 63D CONG., 2D SESS.; 53
CONG. REC. 7469.  AS IS COMMON IN SUCH ENACTMENTS, A COMPROMISE IS
REACHED BETWEEN THOSE WHO WANT STILL GREATER INDEPENDENCE AND THOSE WHO
FEEL THAT THE PRESENT DEGREE OF RESTRICTION IS WARRANTED.  YET, AFTER
EXHAUSTIVE RESEARCH, WE HAVE FOUND NOWHERE IN THE DEBATES OR HEARINGS,
OR IN THE ARGUMENTS OF THOSE SUPPORTING COMPLETE SELF-GOVERNMENT FOR
THE ISLANDS, EVEN A HINT THAT THE PHRASE "OF LOCAL APPLICATION"
REPRESENTS ANY TYPE OF A RESTRICTION UPON THE LOCAL GOVERNMENT, ABOVE
AND BEYOND OUR USUAL CONCEPTS OF LEGISLATIVE JURISDICTION. 

IN LIGHT OF THIS STUDY, IT IS DIFFICULT FOR ME TO FOLLOW THE
REASONING OF THE MAJORITY OPINION.  APPARENTLY, THE COURT SAYS A
STATUTE IS NOT OF LOCAL APPLICATION IF IT IS INTENDED TO REACH BEYOND
ITS BORDERS, AND, SINCE THE ISLANDS' LAW ATTRACTS DOMICILIARIES OF
OTHER STATES TO THE ISLANDS SPECIFICALLY TO GET DIVORCES, IT IS IPSO
FACTO NOT "OF LOCAL APPLICATION."  UNDER THIS REASONING, OTHER LAWS
WOULD NOT BE "OF LOCAL APPLICATION."  FIVE STATES HAVE DIVORCE LAWS
THAT CERTAINLY ATTRACT OUT-OF-STATERS.  PUERTO RICO HAS ESTABLISHED
"OPERATION BOOTSTRAP," A PLANNED CAMPAIGN TO ATTRACT INDUSTRY TO THE
ISLAND BY MEANS OF TAX BENEFITS AND SEVERAL OF THE STATES HAVE SIMILAR
PROGRAMS.  PROBABLY MOST CLEARLY ANALOGOUS TO THE VIRGIN ISLANDS
DIVORCE LAW IS THE CORPORATION LAW OF THE STATE OF DELAWARE, WHICH
OFTEN ATTRACTS ENTERPRISES DOING NO BUSINESS IN THAT STATE; EXCEPT FOR
INCORPORATION THERE MAY BE NO CONTACT BETWEEN THESE COMPANIES AND THEIR
"HOME" STATE.  IN VIEW OF OUR RELATIVELY ABSTRUSE CONSTITUTIONAL
STANDARDS OF LEGISLATIVE JURISDICTION UNDER THE DUE PROCESS CLAUSE, SEE
MILLER BROS. CO. V. MARYLAND, 347 U.S. 340, IT STRIKES ME AS COMPLETELY
UNREASONABLE TO ASSUME THAT "OF LOCAL APPLICATION," WITHOUT THE
FAINTEST INDICATION OF SUCH IN THE LEGISLATIVE HISTORY, WAS MEANT TO
DELEGATE TO THE COURT A NOVEL STANDARD, EQUALLY INDEFINITE, WHICH IT
MIGHT APPLY ON AN AD HOC BASIS. 

THE SLENDERNESS OF THE REED ON WHICH THE MAJORITY DEPENDS IS FURTHER
EMPHASIZED BY THE FACT THAT IN THE 55 YEARS THAT THE "OF LOCAL
APPLICATION" PROVISION HAS BEEN USED IN DESCRIBING THE POWER OF
TERRITORIAL LEGISLATURES IT HAS NOT, SO FAR AS I CAN FIND, EVER BEEN
CONTENDED IN ANY COURT, IN ANY JUDICIAL OPINION, OR IN ANY LAW REVIEW
OR TREATISE, THAT THE PHRASE REPRESENTED ANY SUCH LIMITATION AS THE
MAJORITY HAS PLACED UPON IT. 

WHAT WEIGHT STATISTICS? 

I ASSUME THE MAJORITY AGREES THAT THE ISLANDS' LEGISLATURE HAS THE
POWER TO PASS LAWS ON THE SUBJECT OF DIVORCE.  IN STUDYING THIS
PROBLEM, HOWEVER, IT SEEMS TO BE IMPRESSED BY THE FACT THAT THE EFFECT
OF THIS LAW UPON THE TOURIST TRADE (THOUGH I ASSUME THIS TOO IS A LOCAL
ENTERPRISE) WAS CONSIDERED OF GREAT IMPORTANCE.  I HAD ALWAYS THOUGHT
THAT THE COURTS WERE NOT TO CONCERN THEMSELVES WITH THE MOTIVES OF THE
LEGISLATURE IN EXERCISING ITS POWERS. 

THE MAJORITY ADMITS THAT THE STATE OF NEVADA HANDS OUT EACH YEAR
FORTY TIMES AS MANY DIVORCES PER CAPITA AS THE VIRGIN ISLANDS.  (FN5)
THE OPINION CONCLUDES, HOWEVER, THAT THE ISLANDS ARE REALLY EXTENDING
THEIR BORDERS FURTHER THAN NEVADA ATTEMPTS, BECAUSE THEIR RATIO OF
MARRIAGES TO DIVORCES IS MUCH LOWER.  THIS APPROACHES THE PERFECT NON
SEQUITUR.  THE STATISTICS HAVE NO RELEVANCE WHATEVER TO THE QUESTION
BEFORE US.  I FEEL, HOWEVER, THAT I SHOULD POINT OUT SOME OF THE
REASONS FOR THE HIGHER RATIO OF MARRIAGES TO DIVORCES IN NEVADA. 
FIRST, THE NEVADA DIVORCE MACHINERY HAS BECOME SO SMOOTH THAT THE
HUSBAND-TO-BE OFTEN FLIES OUT TO BE PRESENT AT THE DIVORCE, GETS
MARRIED IN THE CHURCH NEXT DOOR, AND THEN ACCOMPANIES HIS NEW WIFE TO
THEIR "NEW" DOMICILE.  SECONDLY, NEVADA DOES A THRIVING BUSINESS NOT
ONLY IN DIVORCING OUT-OF-STATERS BUT IN MARRYING THEM AS WELL; BY
REQUIRING NO WAITING PERIOD BEFORE MARRIAGE, NEVADA STEALS A MARCH ON
NEARBY CALIFORNIA AND OTHER STATES WHICH ATTEMPT TO FORCE THEIR OFTEN
IMPATIENT RESIDENTS TO WAIT THREE DAYS.  (FN6)    WHAT LAW WOULD BE "OF
LOCAL APPLICATION"? 

THE MAJORITY'S HOLDING THAT THE ISLANDS' LAW IS NOT "OF LOCAL
APPLICATION" CAN BE APPRECIATED MORE FULLY BY ASKING THE QUESTION,
"WHAT TYPE OF A DIVORCE LAW WOULD BE OF LOCAL APPLICATION?"  THE
MAJORITY DOES NOT PASS ON THIS, BUT ITS WHOLE REASONING IS FOUNDED ON
THE PROPOSITION THAT ONLY DOMICILE WILL SUFFICE.  THE LAW IS NOT OF
LOCAL APPLICATION BECAUSE, "FOR THE PURPOSE OF REGULATING DIVORCE OF
VIRGIN ISLANDERS, IT MAY BE ABSTRACTLY RELEVANT BUT PRACTICALLY IT HAS
NO POINT."  PP. 10-11.  WHY?  BECAUSE, SAYS THE MAJORITY, "VIRGIN
ISLANDERS SEEKING DIVORCE ARE NOT SOJOURNERS, MERE TRANSIENTS IN THE
ISLANDS."  THEY ARE DOMICILED IN THE ISLANDS AND COULD OF COURSE BRING
THEMSELVES WITHIN THE 1944 LAW AS INTERPRETED IN BURCH V. BURCH, 195
F.2D 799, 805.  THEY WOULD HAVE NO DIFFICULTY IN MAKING THE
"APPROPRIATE SHOWING OF CONNECTION WITH THE FORUM."  IT IS CRYSTAL
CLEAR THAT ANY DIVORCE LAW NOT REQUIRING DOMICILE WILL ALSO "BE
ABSTRACTLY RELEVANT BUT PRACTICALLY (WILL HAVE) NO POINT."  IN FACT, BY
DEFINITION, THE ONLY PEOPLE IN THE ISLANDS WHO ARE NOT MERE
"SOJOURNERS" OR "TRANSIENTS" ARE THOSE DOMICILED THERE.  THUS THE
"APPROPRIATE SHOWING OF CONNECTION WITH THE FORUM" REQUIRED BEFORE THE
LAW CAN BE OF OTHER THAN LOCAL APPLICATION IS NOTHING OTHER THAN THE
SACRED COW OF DOMICILE.  IS IT ANY MORE MEANINGFUL TO ASK WHETHER
CONGRESS SPECIFICALLY REQUIRED THE ISLANDS TO ADHERE TO DOMICILE AS A
BASIS FOR DIVORCE JURISDICTION, COME WHAT MAY, THAN TO ASK WHETHER
"CONGRESS AUTHORIZED THE ASSEMBLY TO TRAFFIC IN EASY DIVORCES FOR
CITIZENS OF THE STATES AS A STIMULUS TO MONEYMAKING BY THE ISLANDERS'? 
CONGRESS AUTHORIZED THE ISLANDS IN THIS AREA TO HAVE THE POWER OF A
STATE AND THOUGHT NO MORE ABOUT IT.  IF THE MAJORITY IS WILLING TO SAY
THAT A STATE IS RESTRAINED BY THE CONSTITUTION FROM PASSING SUCH
ENACTMENTS, THAT IS ANOTHER STORY.  BUT IT HAS NOT DONE SO.  THE
LANGUAGE OF MR. JUSTICE BROWN IN COPE V. COPE, SUPRA, AT 685, IS
PECULIARLY APPROPRIATE HERE:  "WHILE IT IS THE DUTY OF THE COURTS TO
PUT A CONSTRUCTION UPON STATUTES, WHICH SHALL, SO FAR AS POSSIBLE, BE
CONSONANT WITH GOOD MORALS, WE KNOW OF NO LEGAL PRINCIPLE WHICH WOULD
AUTHORIZE US TO PRONOUNCE A STATUTE OF THIS KIND, WHICH IS PLAIN AND
UNAMBIGUOUS UPON ITS FACE, VOID, BY REASON OF ITS FAILURE TO CONFORM TO
OUR OWN STANDARD OF SOCIAL AND MORAL OBLIGATIONS.  LEGISLATURES ARE AS
COMPETENT AS COURTS TO DEAL WITH THESE SUBJECTS, AND, IN FIXING A
STANDARD OF THEIR OWN, ARE BEYOND OUR CONTROL." 

WHAT WEIGHT HAWAII AND ALASKA? 

TO RATIONALIZE ITS PROCRUSTEAN TREATMENT OF THE VIRGIN ISLANDS
ORGANIC ACT, THE MAJORITY ARGUES THAT, SINCE CONGRESS HAS SPECIFICALLY
LIMITED THE DIVORCE JURISDICTION OF ALASKA AND HAWAII TO CASES WHERE
THE PLAINTIFF HAS RESIDED IN THE TERRITORY FOR AT LEAST TWO YEARS, IT
FOLLOWS THAT THE CONGRESS MUST HAVE INTENDED SIMILARLY TO LIMIT THE
ISLANDS "SO TEMPTINGLY NEAR THE MAINLAND."  THIS IS BUT ANOTHER NON
SEQUITUR.  SINCE 1921 THE RESIDENCE REQUIREMENT IN THE ISLANDS HAS
NEVER BEEN LONGER THAN SIX MONTHS; THE 1936 ORGANIC ACT IN EFFECT
RECOGNIZED AND CONTINUED THAT REQUIREMENT; THREE YEARS THEREAFTER, IN
1939, THE RESIDENCE PERIOD WAS REDUCED TO SIX WEEKS; AND, IN THE 1944
LAW, THIS NEW REQUIREMENT WAS CONTINUED.  THEN, 10 YEARS LATER, LONG
AFTER THE "EXTRAORDINARY RATE OF DIVORCE" HAD OCCURRED AND THE
CONTROVERSY OVER THE ISLANDS' LAW WAS BROUGHT TO THE ATTENTION OF THE
CONGRESS, IT ADOPTED, IN 1954, A NEW ORGANIC ACT WHICH RE-ENACTED THE
IDENTICAL "SUBJECTS OF LOCAL APPLICATION" PROVISION OF THE 1936 ACT. 
CF. ALASKA STEAMSHIP CO. V. UNITED STATES, 290 U.S. 256.  (FN7) 

MOREOVER, THE CONCLUSION OF THE COURT THAT THE TWO-YEAR LIMITATION
PLACED ON ALASKA AND HAWAII CASTS ITS SHADOW ON THE ISLANDS IS "HARDLY
REASONABLE."  IF ANYTHING, IT WOULD BE THE MORE LOGICAL TO ASSUME THE
OPPOSITE - THAT THE CONGRESS, HAVING PLACED A SPECIFIC REQUIREMENT IN
THE ALASKAN AND HAWAIIAN ACTS AND NOT IN THE SUBSEQUENTLY PASSED ACT
FOR THE ISLANDS, HAD GRANTED THE ISLANDS DIVORCE JURISDICTION WITHOUT
ANY SUCH LIMITATION.  IT IS INTERESTING TO NOTE THE EXPLANATION OF
GOVERNMENT COUNSEL ON THIS POINT IN PORTO RICO V. ROSALY Y CASTILLO,
SUPRA: 

"THAT NO PROVISION SIMILAR TO THE ONE HERE UNDER DISCUSSION IS
CONTAINED IN THE ORGANIC ACT OF HAWAII, PASSED AT THE SAME SESSION (OF
THE CONGRESS) IS WHOLLY WITHOUT SIGNIFICANCE, WHEN DUE REGARD IS GIVEN
TO THE ACTUAL CONDITIONS OF CONGRESSIONAL DRAFTSMANSHIP.  THE TWO ACTS
ISSUED FROM TWO DIFFERENT COMMITTEES, AND WERE ACTUALLY DRAWN BY
DIFFERENT SETS OF LEGISLATORS.  INSTANCES, SUCH AS THIS CASE DISCLOSES,
OF THE LACK OF UNIFORMITY IN SIMILAR ENACTMENTS AND GENERAL WANT OF
SCIENTIFIC DRAFTSMANSHIP, ARE BOUND TO PRESENT THEMSELVES  ...  ." 
PAGE 8, GOVERNMENT BRIEF. 

WHAT WEIGHT CONSTITUTIONAL DOUBTS? 

WHILE THE COURT'S OPINION MAKES NO REFERENCE TO ANY CONSTITUTIONAL
DOUBTS, THESE MAY HAVE MOTIVATED IT IN STRIKING DOWN THE ISLANDS' LAW
ON THE STATUTORY GROUND.  IN MY OPINION THIS MAY BE AN EXPLANATION BUT
IT IS NOT AN EXCUSE.  THERE ARE LIMITS TO WHICH THE COURT SHOULD NOT
RUN TO ESCAPE A CONSTITUTIONAL ADJUDICATION.  ADMITTEDLY, THE DOUBT
THAT DOMICILE IS NOT A CONSTITUTIONAL REQUIREMENT IS NOT FREE FROM
DOUBTERS.  EVEN THOUGH JUDGE-MADE, IT DOES INVOLVE A PECULIARLY
SENSITIVE AREA OF AMERICAN LIFE.  NEVERTHELESS, THE VIRGIN ISLANDS ARE
ENTITLED TO A FORTHRIGHT ADJUDICATION ON THEIR STATUTE - NOT ONE BY A
PHANTOM ESCAPE CLAUSE. 

THE CONSTITUTIONAL QUESTIONS PRESENTED ON BRIEF AND AT ARGUMENT
INVOLVE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, THE FULL FAITH
AND CREDIT CLAUSE, AND THE TENTH AMENDMENT.  FIRST OF ALL, NEITHER OF
THE GRANVILLE-SMITHS CLAIMS TO HAVE BEEN DEPRIVED OF LIFE, LIBERTY, OR
PROPERTY WITHOUT DUE PROCESS OF LAW.  WHILE THE STATE HAS AN INTERST IN
THE MARITAL RELATIONSHIP, CERTAINLY THIS INTEREST DOES NOT COME WITHIN
THE PROTECTION OF THE DUE PROCESS CLAUSE.  LIKEWISE, FULL FAITH AND
CREDIT IS NOT APPLICABLE.  MRS. GRANVILLE-SMITH IS NOT ASKING THAT THIS
COURT MAKE HER DIVORCE, IF GRANTED, VALID IN THE STATES.  THAT ISSUE IS
NOT HERE AND MAY NEVER BE.  ALL SHE ASKS IS THAT THE ISLANDS BE
PERMITTED TO PROCEED UNDER THEIR OWN LAW.  IN THIS CONNECTION, I FIND
NO WORDS IN THE CONSTITUTION WHICH REQUIRE A TERRITORY TO GIVE FULL
FAITH AND CREDIT TO THE LAWS OF A STATE. 

NOR HAVE THE ISLANDS INVADED THE SPHERE OF ACTIVITIES RESERVED TO THE
STATES, CONTRARY TO THE TENTH AMENDMENT.  THE "TENTH AMENDMENT 'DOES
NOT OPERATE AS A LIMITATION UPON THE POWERS, EXPRESS OR IMPLIED,
DELEGATED TO THE NATIONAL GOVERNMENT.'"  CASE V. BOWLES, 327 U.S. 92,
102.  THE CONGRESS HAS THE POWER TO DEAL WITH THE ISLANDS, GRANTING OR
WITHHOLDING FROM THEM THE POWERS OF A STATE AS IT SEES FIT. 

THE ONLY CONSTITUTIONAL BUGABOO IS A JUDGE-MADE ONE, DOMICILE.  (FN8)
IT CREATES STRANGE ANOMALIES.  A MARRIED COUPLE, BOTH OF WHOM DESIRE A
DIVORCE, CAN OBTAIN ONE IN NEVADA MERELY BY HAVING ONE SPOUSE "RESIDE"
THERE UNINTERRUPTEDLY FOR SIX WEEKS, AND CLAIM AN INTENTION TO TAKE UP
PERMANENT RESIDENCE THERE.  SEE, E.G., BUSINESS WEEK, JULY 14, 1945, P.
24.  THEN, AFTER DIVORCE, THOUGH THE DIVORCEE IMMEDIATELY LEAVES
NEVADA, AS WAS ALWAYS INTENDED, BOTH SIDES HERE CONCEDE THAT REGARDLESS
OF HOW EVIDENT IT IS THERE WAS NO DOMICILE IN THE DIVORCING STATE, NO
OTHER STATE CAN QUESTION THE VALIDITY OF THE DIVORCE SO LONG AS BOTH
PARTIES APPEARED IN THE ACTION.  SEE JOHNSON V. MUELBERGER, 340 U.S.
581.  WE TOO AGREE WITH THE LANGUAGE OF MR. CHIEF JUSTICE TAFT:  "ALL
OTHERS CAN SEE AND UNDERSTAND THIS.  HOW CAN WE PROPERLY SHUT OUR MINDS
TO IT?"  CHILD LABOR TAX CASE, 259 U.S. 20, 37.  (FN9)  STILL THE COURT
STRIKES DOWN THE ISLANDS' LAW WHICH AVOIDS THIS JUDICIAL FRAUD. 

DIVORCE IS AN INTENSELY PRACTICAL MATTER, AND IF A HUSBAND AND WIFE
DOMICILED IN ANY STATE WANT A DIVORCE ENOUGH, WE ALL KNOW THAT THEY CAN
SECURE IT IN SEVERAL OF OUR STATES.  THIS BEING TRUE, I SEE NO SENSE IN
STRIKING DOWN THE ISLANDS' LAW.  THERE IS NO VIRTUE IN A STATE OF THE
LAW THE ONLY PRACTICAL EFFECT OF WHICH WOULD BE TO MAKE NEW YORKERS FLY
2,400 MILES OVER LAND TO RENO INSTEAD OF 1,450 MILES OVER WATER TO THE
VIRGIN ISLANDS. 

THE ONLY VICE OF THE VIRGIN ISLANDS' STATUTE, IN AN UNCONTESTED CASE
LIKE THIS, IS THAT IT MAKES UNNECESSARY A CHOICE BETWEEN BIGAMY AND
PERJURY.  I THINK THE COURT SHOULD NOT DISCOURAGE THIS AND I WOULD
REVERSE. 

FN1  THE WORDS OF THE ORGANIC ACT, HOWEVER, APPEAR TO REQUIRE THAT
LOCAL LAWS MERELY BE ON "SUBJECTS OF LOCAL APPLICATION."  DIVORCE, IT
SEEMS TO ME, IS SUCH A SUBJECT. 

FN2  RATHER THAN INTERPRETING THIS AS A GREATER RESTRICTION, IT WOULD
SEEM MORE REASONABLE TO ME TO ASSUME THAT THE CONGRESS, IN REPEATING
THESE WORDS, MEANT THAT THE LEGISLATURE, WITHIN THE SPECIFIC
LIMITATIONS LAID DOWN IN THE ORGANIC ACT, WAS TO EXERCISE THE SAME TYPE
OF POWER AS CONGRESS COULD FOR THE TERRITORY, SUBJECT, OF COURSE, TO
THE POWER OF THE CONGRESS.  THIS VIEW IS SUPPORTED BY THE GOVERNMENT'S
ARGUMENT IN PUERTO RICO V. SHELL CO., 302 U.S. 253, CITED BY THE
MAJORITY:  "THE BROAD GRANT TO A TERRITORIAL LEGISLATURE OF 'ALL LOCAL
LEGISLATIVE POWER' IN THE TERRITORY, TO 'EXTEND TO ALL MATTERS OF A
LEGISLATIVE CHARACTER NOT LOCALLY INAPPLICABLE', IN LANGUAGE SUCH AS,
OR SIMILAR TO, THAT USED IN THE ORGANIC ACT FOR PUERTO RICO, TAKEN IN
CONNECTION WITH THE OTHER PROVISIONS OF AN ORGANIC ACT ESTABLISHING, AS
IN PUERTO RICO, AN ORGANIZED TERRITORIAL GOVERNMENT IN ACCORDANCE WITH
THE AMERICAN SYSTEM, WITH LEGISLATIVE, EXECUTIVE AND JUDICIAL POWERS,
CONFERS (WITH THE EXCEPTIONS SPECIFICALLY STATED IN THE ORGANIC ACT) AS
PLENARY LOCAL LEGISLATIVE POWER UPON THE TERRITORIAL LEGISLATURE AS
THAT HABITUALLY EXERCISED BY THE LEGISLATURE OF A STATE."  GOVERNMENT
BRIEF, P. 31. 

FN3  THESE INCLUDE THE SUBSTANCE OF THE BILL OF RIGHTS, 48 U.S.C.
SEC. 1561, AND PROVISIONS COVERING THE PAY OF LEGISLATORS, 48 U.S.C.
SEC. 1572, THE EXTENT OF THE FRANCHISE, 48 U.S.C. SEC. 1542, AND
VARIOUS ASPECTS OF LEGISLATIVE PROCEDURE, 48 U.S.C.  SEC. 1575. 

FN4  SEE ALSO WALKER V. SOUTHERN PACIFIC R. CO., 165 U.S. 593, 604
(1897)(NEW MEXICO); CLINTON V. ENGLEBRECHT, 13 WALL.  434, 441
(1872)(UTAH); HORNBUCKLE V. TOOMBS, 18 WALL.  648, 655 (1874)
(MONTANA); GROMER V. STANDARD DREDGING CO., 224 U.S. 362, 370
(1912)(PUERTO RICO); CHRISTIANSON V. KING COUNTY, 239 U.S. 356, 365
(1915)(WASHINGTON); MAYNARD V. HILL, 125 U.S. 190, 204 (1888) (OREGON);
TIACO V. FORBES, 228 U.S. 549 (PHILIPPINE ISLANDS); IN RE MURPHY, 5
WYO. 297, 310 40 P. 398, 402 (1895)(WYOMING); TERRITORY V. LONG BELL
LUMBER CO., 22 OKLA. 890, 898, 99 P. 911, 914-915 (1908)(OKLAHOMA); 19
OP. ATTY. GEN. 335, 338 (ARIZONA). 

FN5  NEVADA'S YEARLY AVERAGE IS ABOUT 9,000; THE ISLANDS' HIGHEST
TOTAL IS 343, AND ITS 5-YEAR AVERAGE IS ABOUT 200. 

FN6  THIS ARRANGEMENT HAS TAKEN SO MANY NUPTIALS TO NEVADA THAT THE
MARRIAGE TRADE HAS ALSO BECOME A VERY LUCRATIVE BUSINESS.  SO GOOD, IN
FACT, THAT NEVADA'S LEGISLATURE HAS RECENTLY FOUND IT NECESSARY TO
SETTLE A SQUABBLE BETWEEN LOCAL OFFICIALS AS TO WHO MIGHT PERFORM THE
MARRIAGE CEREMONY.  SEE RENO EVENING GAZETTE, MARCH 21, 1955, P. 11,
COL.  3; MARCH 23, P. 11, COL. 6. 

FN7  IN ADDITION TO ALL THIS, I BELIEVE THE RE-ENACTMENT BY CONGRESS
OF THIS PROVISION IN 1954 IS ENTITLED TO EXTRA WEIGHT.  WHEN THE
ORGANIC ACT CAME UP BEFORE CONGRESS, THE THIRD CIRCUIT HAD CONSTRUED IT
TO PERMIT THE VIRGIN ISLANDS' DIVORCE LAW.  NOR DOES THE FACT THAT THE
MAJORITY IN THE THIRD CIRCUIT HELD THE VIRGIN ISLANDS' LAW INVALID ON
OTHER GROUNDS CHANGE THE WEIGHT TO BE GIVEN TO THE RE-ENACTMENT.  ANY
LAWYER WOULD KNOW THAT, ON THE CONSTITUTIONAL GROUNDS RELIED ON BY THE
ONE-JUDGE MAJORITY, THE SUPREME COURT WAS JUST AS LIKELY TO DISAGREE AS
TO AGREE.  IN THE NOT IMPROBABLE CASE THAT THE COURT HELD THE VIRGIN
ISLANDS'S ENACTMENT CONSTITUTIONAL, A SMALL CHANGE IN THE ORGANIC ACT
WOULD BE THE ONLY WAY OR PREVENTING THE OPERATION OF THIS INSULAR "PIED
PIPER."  YET CONGRESS MADE NO SUCH CHANGE.  AS CHIEF JUSTICE STONE SAID
DISSENTING IN GIROUARD V. UNITED STATES, 328 U.S. 61, 75, 76, "IN ANY
CASE IT IS NOT LIGHTLY TO BE IMPLIED THAT CONGRESS  ...  HAS DELEGATED
TO THIS COURT THE RESPONSIBILITY OF GIVING NEW CONTENT TO LANGUAGE
DELIBERATELY READOPTED." 

FN8  EVEN THIS IS BEING FAST UNDONE AND "ENGLISH COURTS MAY NOW GRANT
DIVORCES IN MANY CASES WHERE THE PARTIES ARE NOT DOMICILED IN
ENGLAND."  SEE 65 HARV. L. REV. 193, 200.  SEE ALSO CROWNOVER V.
CROWNOVER, 58 N.M. 597, 274 P.2D 127 (1954). 

FN9  AN ARTICLE ON THE NEVADA DIVORCE IN A POPULAR MAGAZINE SHOWS
THAT THE PEOPLE HAVE NOT CLOSED THEIR MINDS EVEN IF THIS COURT HAS. 
"NEVADA'S FIRST REQUIREMENT FOR A DIVORCE IS WHAT LAWYERS SMUGLY REFER
TO AS A 'LEGAL FICTION':  SIX WEEKS' STEADY RESIDENCE IN NEVADA  ...  .
AFTER THIS A MILD SORT OF PERJURY IS COMMITTED WHEN THE APPLICANT
MUMBLES, IN REPLY TO THE JUDGE'S MUMBLE, THAT SHE DOES INTEND TO
CONTINUE RESIDENCE IN NEVADA."  HOLIDAY, FEBRUARY 1949, P. 98. 
..END :





NORWOOD V. KIRKPATRICK 349 U.S. 29 


NO. 337.  ARGUED MARCH 4, 1955 - DECIDED APRIL 11, 1955 - AFFIRMED. 


1.  UNDER 28 U.S.C. SEC. 1404(A), WHICH PROVIDES THAT "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," THE DISTRICT COURT HAS A
BROADER DISCRETION THAN UNDER THE DOCTRINE OF FORUM NON CONVENIENS. 
PP. 29-33. 

2.  28 U.S.C. SEC. 1404(A) IS NOT MERELY A CODIFICATION OF THE
DOCTRINE OF FORUM NON CONVENIENS.  P. 32. 

3.  THREE DINING CAR EMPLOYEES WHO WERE INJURED IN THE DERAILMENT OF
AN INTERSTATE RAILROAD'S TRAIN NEAR DILLON, S.C., BROUGHT SEPARATE
SUITS AGAINST THE RAILROAD UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
IN A FEDERAL DISTRICT COURT IN PENNSYLVANIA.  THE DEFENDANT FILED
MOTIONS TO DISMISS OR, IN THE ALTERNATIVE, TO TRANSFER THE CASES TO THE
EASTERN DISTRICT OF SOUTH CAROLINA.  THE DISTRICT COURT DENIED THE
MOTIONS TO DISMISS AND GRANTED THE MOTIONS TO TRANSFER UNDER 28 U.S.C.
SEC. 1404(A).  HELD:  THE JUDGMENT OF THE DISTRICT COURT WAS CORRECT IN
LAW AND WARRANTED BY THE FACTS.  PP. 29-33. 

NORWOOD ET AL. V. KIRKPATRICK, U.S. DISTRICT JUDGE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE THREE PETITIONERS, DINING CAR EMPLOYEES, FILED SEPARATE SUITS IN
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA, AGAINST THE ATLANTIC COAST LINE RAILROAD CO. THEY SUED
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT FOR INJURIES RECEIVED UPON
THE DERAILMENT OF ONE OF DEFENDANT'S TRAINS NEAR DILLON, SOUTH
CAROLINA.  THE DEFENDANT FILED MOTIONS TO DISMISS OR, IN THE
ALTERNATIVE, TO TRANSFER THE CASES TO THE FLORENCE DIVISION OF THE
EASTERN DISTRICT OF SOUTH CAROLINA.  THE DISTRICT COURT DENIED THE
MOTIONS TO DISMISS AND GRANTED THE MOTIONS TO TRANSFER UNDER 28 U.S.C.
SEC. 1404(A).* 

*"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." 

SINCE THE COURT OF APPEALS FOR THE THIRD CIRCUIT HAD HELD, IN ALL
STATES FREIGHT V. MODARELLI, 196 F.2D 1010, THAT THE ORDER FOR TRANSFER
WAS NOT APPEALABLE, THE PETITIONERS FILED APPLICATIONS FOR MANDAMUS OR
PROHIBITION TO THE DISTRICT JUDGE IN ORDER TO REQUIRE HIM TO SET ASIDE
HIS ORDERS OF TRANSFER.  THE COURT OF APPEALS DENIED THE APPLICATIONS,
AND WE GRANTED CERTIORARI.  348 U.S. 870. 

THE CASES OF THE THREE PETITIONERS PRESENT IDENTICAL QUESTIONS OF
LAW, WERE CONSOLIDATED FOR ARGUMENT HERE, AND WILL BE DISPOSED OF IN
THIS OPINION. 

THE DISTRICT JUDGE IN GRANTING THE MOTIONS TO TRANSFER STATED THAT IF
HE HAD BEEN FREE TO CONSTRUE SEC. 1404(A) AS HE DID IN THE CASE OF
NAUGHTON V. PENNSYLVANIA R. CO., 85 F. SUPP.  761, HE WOULD HAVE DENIED
THE TRANSFERS BECAUSE, IN HIS VIEW, IT CALLED FOR AN APPLICATION OF THE
STRICTER RULE OF FORUM NON CONVENIENS AS RECOGNIZED IN DECISIONS OF
THIS COURT.  SEE GULF OIL CORP. V. GILBERT, 330 U.S. 501.  BUT SINCE
THE NAUGHTON CASE, THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT
HAD HELD, IN ALL STATES FREIGHT V. MODARELLI, SUPRA, THAT THE DISTRICT
JUDGE HAD A BROADER DISCRETION IN THE APPLICATION OF THE STATUTE THAN
UNDER THE DOCTRINE OF FORUM NON CONVENIENS.  THE DISTRICT JUDGE,
THEREFORE, FOLLOWED THE RULE LAID DOWN IN THE ALL STATES FREIGHT CASE,
SUPRA.  WE THINK THE COURT OF APPEALS CORRECTLY REJECTED THE NARROWER
DOCTRINE OF FORUM NON CONVENIENS AND PROPERLY CONSTRUED THE STATUTE. 
AS JUDGE GOODRICH, SPEAKING FOR THE COURT, APPROPRIATELY POINTED OUT,
AT P. 1011: 

"THE FORUM NON CONVENIENS DOCTRINE IS QUITE DIFFERENT FROM SECTION
1404(A).  THAT DOCTRINE INVOLVES THE DISMISSAL OF A CASE BECAUSE THE
FORUM CHOSEN BY THE PLAINTIFF IS SO COMPLETELY INAPPROPRIATE AND
INCONVENIENT THAT IT IS BETTER TO STOP THE LITIGATION IN THE PLACE
WHERE BROUGHT AND LET IT START ALL OVER AGAIN SOMEWHERE ELSE.  IT IS
QUITE NATURALLY SUBJECT TO CAREFUL LIMITATION FOR IT NOT ONLY DENIES
THE PLAINTIFF THE GENERALLY ACCORDED PRIVILEGE OF BRINGING AN ACTION
WHERE HE CHOOSES, BUT MAKES IT POSSIBLE FOR HIM TO LOSE OUT COMPLETELY,
THROUGH THE RUNNING OF THE STATUTE OF LIMITATIONS IN THE FORUM FINALLY
DEEMED APPROPRIATE.  SECTION 1404(A) AVOIDS THIS LATTER DANGER.  ITS
WORDS SHOULD BE CONSIDERED FOR WHAT THEY SAY, NOT WITH PRECONCEIVED
LIMITATIONS DERIVED FROM THE FORUM NON CONVENIENS DOCTRINE." 

JUDGE MARIS, WHO WAS CHAIRMAN OF THE JUDICIAL CONFERENCE COMMITTEE ON
THE REVISION OF THE CODE AND APPROVED THE TEXT SUBMITTED TO CONGRESS,
SAT ON THE COURT OF APPEALS EN BANC WHEN ALL STATES FREIGHT WAS
DECIDED.  AND JUDGE PARKER OF THE FOURTH CIRCUIT, CONSULTANT TO THE
ADVISORY COMMITTEE, WRITING FOR THE COURT IN JIFFY LUBRICATOR CO., INC.
V. STEWART-WARNER CORP., 177 F.2D 360, 362, ALSO CONSTRUED THE STATUTE
AS WE UNDERSTAND IT: 

"  ...  A DISMISSAL IN APPLICATION OF THAT (FORUM NON CONVENIENS) OR
ANY OTHER PRINCIPLE PUTS AN END TO THE ACTION AND HENCE IS FINAL AND
APPEALABLE.  AN ORDER TRANSFERRING IT TO ANOTHER DISTRICT DOES NOT END
BUT PRESERVES IT AS AGAINST THE RUNNING OF THE STATUTE OF LIMITATIONS
AND FOR ALL OTHER PURPOSES.  THE NOTION THAT 28 U.S.C.A. SEC. 1404(A)
WAS A MERE CODIFICATION OF EXISTING LAW RELATING TO FORUM NON
CONVENIENS IS ERRONEOUS.  IT IS PERFECTLY CLEAR THAT THE PURPOSE OF
THIS SECTION OF THE REVISED JUDICIAL CODE WAS TO GRANT BROADLY THE
POWER OF TRANSFER FOR THE CONVENIENCE OF PARTIES AND WITNESSES, IN THE
INTEREST OF JUSTICE, WHETHER DISMISSAL UNDER THE DOCTRINE OF FORUM NON
CONVENIENS WOULD HAVE BEEN APPROPRIATE OR NOT." 

SEE ALSO MOORE, COMMENTARY ON THE JUDICIAL CODE (1949 ED.), P. 208. 

WHEN CONGRESS ADOPTED SEC. 1404(A), IT INTENDED TO DO MORE THAN JUST
CODIFY THE EXISTING LAW ON FORUM NON CONVENIENS.  AS THIS COURT SAID IN
EX PARTE COLLETT, 337 U.S. 55-61, CONGRESS, IN WRITING SEC. 1404(A),
WHICH WAS AN ENTIRELY NEW SECTION, WAS REVISING AS WELL AS CODIFYING. 
THE HARSHEST RESULT OF THE APPLICATION OF THE OLD DOCTRINE OF FORUM NON
CONVENIENS, DISMISSAL OF THE ACTION, WAS ELIMINATED BY THE PROVISION IN
SEC. 1404(A) FOR TRANSFER.  WHEN THE HARSHEST PART OF THE DOCTRINE IS
EXCISED BY STATUTE, IT CAN HARDLY BE CALLED MERE CODIFICATION.  AS A
CONSEQUENCE, WE BELIEVE THAT CONGRESS, BY THE TERM "FOR THE CONVENIENCE
OF PARTIES AND WITNESSES, IN THE INTEREST OF JUSTICE," INTENDED TO
PERMIT COURTS TO GRANT TRANSFERS UPON A LESSER SHOWING OF
INCONVENIENCE.  THIS IS NOT TO SAY THAT THE RELEVANT FACTORS HAVE
CHANGED OR THAT THE PLAINTIFF'S CHOICE OF FORUM IS NOT TO BE
CONSIDERED, BUT ONLY THAT THE DISCRETION TO BE EXERCISED IS BROADER. 

IT IS CONCEDED BY THE PETITIONERS THAT IF THE DISTRICT JUDGE WAS
CORRECT IN EXERCISING HIS DISCRETION TO TRANSFER THESE CASES UNDER SEC.
1404(A) WITHOUT REGARD TO THE STRINGENT REQUIREMENTS OF FORUM NON
CONVENIENS, THEN THE COURT OF APPEALS PROPERLY DENIED THE APPLICATIONS
FOR MANDAMUS AND PROHIBITION.  SINCE WE AGREE THAT THE DISTRICT JUDGE
CORRECTLY CONSTRUED THE STATUTE IN EVALUATING THE EVIDENCE, WE DO NOT
FIND IT NECESSARY TO DETAIL THE FACTS CONSIDERED BY HIM IN REACHING HIS
JUDGMENT.  IT WAS CORRECT IN LAW AND WARRANTED BY THE FACTS. 

SINCE WE FIND THAT THE DISTRICT JUDGE PROPERLY CONSTRUED SEC.
1404(A), IT IS UNNECESSARY TO PASS UPON THE QUESTION OF WHETHER
MANDAMUS OR PROHIBITION IS A PROPER REMEDY. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

UNDER THIS JUDGMENT, ALEXANDER NORWOOD, WHO LIVES IN PHILADELPHIA
WHERE HE FILED THIS SUIT FOR DAMAGES AGAINST THE RAILROAD, WILL HAVE TO
GO TO SOUTH CAROLINA IF HE WISHES TO PROSECUTE IT. JOSEPH TUNSTALL AND
JOHN SMALLWOOD, BOTH OF WHOM LIVE IN WASHINGTON, D.C., WILL LIKEWISE
HAVE TO GO ALL THE WAY TO SOUTH CAROLINA IF THEY HOPE TO RECOVER ANY
DAMAGES AGAINST THE RAILROAD.  ALL THREE ALLEGEDLY SUFFERED PERMANENT
INJURIES WHEN A PASSENGER TRAIN ON WHICH THEY WERE EMPLOYED WAS
DERAILED.  THE DERAILMENT, WITH WHICH THE PLAINTIFFS HAD NO CONNECTION
WHATEVER, IS SUFFICIENT IN ITSELF TO SUPPORT A FINDING OF NEGLIGENCE. 
SEE JESIONOWSKI V. BOSTON & MAINE R. CO., 329 U.S. 452.  DESPITE THESE
CIRCUMSTANCES, THE DISTRICT JUDGE DEPRIVED NORWOOD OF A TRIAL IN HIS
HOME TOWN, AND TUNSTALL AND SMALLWOOD OF ONE WITHIN 150 MILES OF
THEIRS.  THIS COURT'S DECISION, SUSTAINING THAT RESULT, SENDS THE CASE
TO SOUTH CAROLINA, PERHAPS PREVENTING IT FROM EVER BEING PROSECUTED
BECAUSE OF THE FINANCIAL CONDITION OF THE PLAINTIFFS. 

THIS IS THOUGHT JUSTIFIED BY AN INTERPRETATION OF SEC. 1404(A) OF THE
1948 REVISION OF THE JUDICIAL CODE, 28 U.S.C. SEC. 1404(A).  IT
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." 

AS WORDS ON A PAGE TORN FROM THE HISTORY OF OUR JUDICIAL DEVELOPMENT,
THIS DIRECTION IS UTTERLY MEANINGLESS.  HOW GREAT MUST BE THE
INCONVENIENCE BEFORE A JUDGE COULD FEEL JUSTIFIED IN ORDERING A
TRANSFER?  WHEN WOULD IT BE "IN THE INTEREST OF JUSTICE" TO DO SO?  IT
IS NOT DIFFICULT TO IMAGINE THE BAFFLED REACTIONS OF OUR JUDICIARY WERE
THIS MANDATE NOT ACCOMPANIED BY SOME EXPLANATION, WERE IT NOT PRECEDED
BY SOME EXPERIENCE IN DEALING WITH PLEAS TO DECLINE SUITS BECAUSE OF
INCONVENIENCE AND INJUSTICE.  COMPARE THE GROPINGS OF THIS COURT AND
THE REMAINDER OF THE FEDERAL JUDICIARY WHEN CONFRONTED WITH THE BLANK
PAGES PRESENTED BY THE CELEBRATED SEC. 301 OF TAFT-HARTLEY.  SEE
ASSOCIATION OF WESTINGHOUSE SALARIED EMPLOYEES V. WESTINGHOUSE ELECTRIC
CORP., 348 U.S. 437. 

BUT, FORTUNATELY, THE COMMAND OF SEC. 1404(A) IS ACCOMPANIED BY BOTH
HISTORY AND EXPLANATION.  THE REVISER'S NOTES STATE: 

"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, 62 S. CT. 6,
314 U.S. 44, 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." 

THE FEDERAL COURTS, IN EXERCISING THEIR DISCRETION UNDER THIS
PROVISION, ARE THUS NOT SET ADRIFT ON AN UNCHARTED SEA, TO ORDER
TRANSFERS ACCORDING TO THEIR PERSONAL NOTIONS OF JUSTICE.  THEY ARE
EXPLICITLY REFERRED TO THE BODY OF DOCTRINE IN ANGLO-AMERICAN LAW KNOWN
AS FORUM NON CONVENIENS, A DOCTRINE WHICH WAS CERTAINLY WELL DEVELOPED
AT THE TIME OF THE PASSAGE OF THE NEW CODE.  INDEED, SHORTLY BEFORE THE
REVISION WAS INTRODUCED IN CONGRESS, THIS COURT HANDED DOWN TWO
DECISIONS SETTING FORTH THE CONSIDERATIONS WHICH SHOULD GOVERN THE
EXERCISE OF THE TRIAL JUDGE'S DISCRETION.  GULF OIL CORP. V. GILBERT,
330 U.S. 501; KOSTER V. LUMBERMENS MUTUAL CASUALTY CO., 330 U.S. 518. 
THESE OPINIONS CLEARLY EVINCED THE ATTITUDE WITH WHICH THESE MATTERS
SHOULD BE APPROACHED, THE STANDARD TO BE APPLIED: 

"IT IS OFTEN SAID THAT THE PLAINTIFF MAY NOT, BY CHOICE OF AN
INCONVENIENT FORUM, 'VEX,' 'HARASS,' OR 'OPPRESS' THE DEFENDANT BY
INFLICTING UPON HIM EXPENSE OR TROUBLE NOT NECESSARY TO HIS OWN RIGHT
TO PURSUE HIS REMEDY.  BUT UNLESS THE BALANCE IS STRONGLY IN FAVOR OF
THE DEFENDANT, THE PLAINTIFF'S CHOICE OF FORUM SHOULD RARELY BE
DISTURBED."  GULF OIL CORP., 330 U.S., AT 508. 

"WHERE THERE ARE ONLY TWO PARTIES TO A DISPUTE, THERE IS GOOD REASON
WHY IT SHOULD BE TRIED IN THE PLAINTIFF'S HOME FORUM IF THAT HAS BEEN
HIS CHOICE.  HE SHOULD NOT BE DEPRIVED OF THE PRESUMED ADVANTAGES OF
HIS HOME JURISDICTION EXCEPT UPON A CLEAR SHOWING OF FACTS WHICH EITHER
(1) ESTABLISH SUCH OPPRESSIVENESS AND VEXATION TO A DEFENDANT AS TO BE
OUT OF ALL PROPORTION TO PLAINTIFF'S CONVENIENCE, WHICH MAY BE SHOWN TO
BE SLIGHT OR NONEXISTENT, OR (2) MAKE TRIAL IN THE CHOSEN FORUM
INAPPROPRIATE BECAUSE OF CONSIDERATIONS AFFECTING THE COURT'S OWN
ADMINISTRATIVE AND LEGAL PROBLEMS.   IN ANY BALANCING OF CONVENIENCES,
A REAL SHOWING OF CONVENIENCE BY A PLAINTIFF WHO HAS SUED IN HIS HOME
FORUM WILL NORMALLY OUTWEIGH THE INCONVENIENCE THE DEFENDANT MAY HAVE
SHOWN."  KOSTER, 330 U.S., AT 524. 

THERE WAS A DIRECT REFERENCE TO THE KOSTER DECISION IN HEARINGS
BEFORE THE SENATE COMMITTEE CONSIDERING THE 1948 CODE.  HEARINGS BEFORE
A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY ON H.R. 3214,
80TH CONG., 2D SESS. 73-74. 

THE BASIC ISSUE IN THIS CASE IS WHETHER THE DISTRICT JUDGE SHOULD
EXERCISE HIS DISCRETION IN THE LIGHT OF THESE OPINIONS, AND IN THE
LIGHT OF FORUM NON CONVENIENS DOCTRINE GENERALLY (OF WHICH THESE
SUPREME COURT DECISIONS ARE A PARTICULARIZATION), OR WHETHER SEC.
1404(A) EXPANDS THE RANGE OF HIS DISCRETION TO AN AS YET UNSTATED
DEGREE, AND REMOVES THESE DECISIONS AND OTHER FORUM NON CONVENIENS
CASES AS GUIDING PRECEDENTS.  THE COURTS OF APPEALS HAVE DIVIDED ON THE
ISSUE.  WITH THE OPINIONS CITED BY THE MAJORITY, COMPARE FORD MOTOR CO.
V. RYAN, 182 F.2D 329; NICOL V. KOSCINSKI, 188 F.2D 537; WIREN V. LAWS,
90 U.S. APP. D.C. 105, 194 F.2D 873.  BUT SEE AMALGAMATED ASSN. V.
SOUTHERN BUS LINES, 172 F.2D 946, 948.  THE SECTION ITSELF IS MERELY A
RESTATEMENT, IN VERY GENERALIZED FORM, OF THE CONSIDERATIONS THOUGHT TO
GOVERN THE QUESTION OF FORUM NON CONVENIENS.  THE PARTICULAR WORDS OR
THEIR EQUIVALENTS RECUR IN THE CASES AND LITERATURE ON THE SUBJECT. 
(FN1)  THE REVISER'S NOTES REPEAT THESE FACTORS AND REFER EXPLICITLY TO
FORUM NON CONVENIENS.  ORDINARILY, THESE CONSIDERATIONS, STANDING
ALONE, WOULD AFFORD COGENT GROUNDS FOR FINDING THAT THE OLD DOCTRINE
WAS TO CONTINUE AS THE PREVAILING RULE.  THIS COURT SAID AS MUCH IN EX
PARTE COLLETT, 337 U.S. 55, 56, WHEN IT POSED THE ISSUE: 

"IN THIS CASE WE MUST DECIDE WHETHER THE VENUE PROVISIONS OF THE
JUDICIAL CODE RENDER APPLICABLE THE DOCTRINE OF FORUM NON CONVENIENS TO
ACTIONS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT."    WE HELD THE
DOCTRINE WAS APPLICABLE TO SUCH CASES. 

BUT NOW IT IS ARGUED THAT SINCE SEC. 1404(A) HAS CHANGED THE JUDICIAL
RESPONSE TO THE INCONVENIENT FORUM, PROVIDING FOR TRANSFER RATHER THAN
DISMISSAL, THE TRIAL JUDGE MAY EXERCISE A BROADER DISCRETION THAN WAS
PERMISSIBLE UNDER THE OLD RULE.  THE OPINION OF THE COURT, ADOPTING
THIS VIEW, GOES FAR TOWARD ASSIGNING TO THE TRIAL JUDGE THE CHOICE OF
FORUMS, A PREROGATIVE WHICH HAS PREVIOUSLY RESTED WITH THE PLAINTIFF. 
IN SO DOING, THE MAJORITY COMPLETELY IGNORES THE JUDICIAL AND
LEGISLATIVE BACKGROUND OF FORUM NON CONVENIENS IN CASES ARISING UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT.    SECTION 6 OF THE FELA WAS
AMENDED IN 1910 TO PERMIT SUITS TO BE BROUGHT "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" THE ACTION.  36 STAT. 291, AS AMENDED, 45 U.S.C. SEC. 56. 
WE HELD THAT THE CONGRESSIONAL PURPOSE MANIFESTED BY THIS PROVISION
PRECLUDED THE APPLICATION OF FORUM NON CONVENIENS TO SUITS UNDER THE
ACT.  BALTIMORE & OHIO R. CO. V. KEPNER, 314 U.S. 44; MILES V. ILLINOIS
CENTRAL R. CO., 315 U.S. 698.  AGITATION IN CONGRESS TO LIMIT VENUE
UNDER THE FELA CULMINATED IN THE ATTEMPTED PASSAGE OF THE JENNINGS
BILL, H.R. 1639, 80TH CONG., 1ST SESS.; THE BILL PASSED THE HOUSE BY A
NARROW MARGIN, 93 CONG. REC. 9193-9194, ONLY TO DIE IN THE SENATE.  BUT
THE 1948 REVISION OF THE JUDICIAL CODE, CHARACTERIZED BY ITS
LEGISLATIVE LEADERS AS A NONCONTROVERSIAL REVISION AND CODIFICATION,
SEE EX PARTE COLLETT, SUPRA, AT 62, WAS HELD TO OVERTURN THE KEPNER AND
MILES DECISIONS AND MAKE FORUM NON CONVENIENS APPLICABLE TO ACTIONS
UNDER THE FELA.  IN APPLYING SEC. 1404(A) TO FELA CASES, THIS COURT
SAID IN COLLETT: 

"THE CODE, THEREFORE, DOES NOT REPEAL SEC. 6 OF THE FEDERAL
EMPLOYERS' LIABILITY ACT.  WE AGREE WITH PETITIONER THAT CONGRESS HAD
NO SUCH INTENTION, AS DEMONSTRATED BY ITS FAILURE TO LIST THE SECTION
IN THE METICULOUSLY PREPARED SCHEDULE OF STATUTES REPEALED.  WE CANNOT
AGREE THAT THE ORDER BEFORE US EFFECTUATES AN IMPLIED REPEAL.  THE
INAPPLICABILITY OF FORUM NON CONVENIENS TO LIABILITY ACT SUITS DERIVES
FROM THE KEPNER DECISION  ...  .  CONGRESS CHOSE TO REMOVE ITS JUDICIAL
GLOSS VIA ANOTHER STATUTE."  ID., AT 60-61. 

REMOVAL OF THE "JUDICIAL GLOSS" WOULD MERELY REPEAL THE KEPNER
DOCTRINE AND THUS MAKE FELA SUITS, ALONG WITH ANY CIVIL ACTION, SUBJECT
TO FORUM NON CONVENIENS.  THIS COURT ASSERTED JUST THAT IN POPE V.
ATLANTIC COAST LINE R. CO., 345 U.S. 379, 383: 

"WE HAVE HERETOFORE HELD THAT SEC. 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 CONVENIENT FORUM.  EX PARTE COLLETT, 337 U.S. 55
(1949)." 

AGAIN IN KEROTEST MFG. CO. V. C-O-TWO FIRE EQUIPMENT CO., 342 U.S.
180, 186, WE SAID: 

"AND IF THE MANUFACTURER IS JOINED AS AN UNWILLING DEFENDANT IN A
FORUM NON CONVENIENS, HE HAS AVAILABLE UPON AN APPROPRIATE SHOWING THE
RELIEF PROVIDED BY SEC. 1404(A) OF THE JUDICIAL CODE.  62 STAT. 869,
937, 28 U.S.C. SEC. 1404(A)." 

AND AS LATE AS 1953, JUSTICES JACKSON, BLACK, AND MINTON, DISSENTING
IN WELLS V. SIMONDS ABRASIVE CO., 345 U.S. 514, 522, MADE THIS
STATEMENT: 

"28 U.S.C. SEC. 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.  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." 

NONE OF THESE CASES IS EVEN MENTIONED BY THE MAJORITY.  IN EACH IS
IMPLICIT THE PRINCIPLE THAT SEC. 1404(A) EMBODIES THE DOCTRINE OF FORUM
NON CONVENIENS; IN EACH THERE IS THE UNIFORM UNDERSTANDING OF MEMBERS
OF THIS COURT THAT THE LANGUAGE OF SEC. 1404(A) IS MERELY A PARAPHRASE
OF THAT RULE.  INSTEAD, THE MAJORITY APPLIES A VARIATION OF THE OLD
JENNINGS BILL, WHICH CONGRESS REFUSED TO ADOPT AT THE SAME SESSION IN
WHICH IT INSERTED SEC. 1404(A) INTO THE NEW CODE.  THERE IS CERTAINLY
NOTHING EVEN REMOTELY CONNECTED WITH THE ENACTMENT OF SEC. 1404(A) TO
INDICATE THAT WHEN THE SECTION AND THE REVISER'S NOTES REFERRED TO
FORUM NON CONVENIENS - PARTICULARLY AS ARTICULATED IN THE THEN-RECENT
GULF OIL AND KOSTER CASES - THEY MEANT THE JENNINGS BILL OR ANYTHING
LIKE IT. STILL THE MAJORITY ADOPTS A SLIGHT MODIFICATION OF THAT
REJECTED PROVISION. 

MUCH IS MADE OF THE FACT THAT THERE IS NO LEGISLATIVE RECORD OF
OPPOSITION TO THE ADOPTION OF SEC. 1404(A).  THIS, IF TRUE, IS
EXPLAINED BY THE FACT THAT THE REVISER'S NOTES, AS WELL AS CONGRESS'
REFUSAL TO ADOPT THE JENNINGS BILL, MAY WELL HAVE LULLED ANY OPPOSITION
INTO A FALSE FEELING OF SECURITY.  THE STATEMENTS IN GULF OIL AND
KOSTER THAT THE PLAINTIFF'S CHOICE COULD BE DISTURBED ONLY IF "THE
BALANCE IS STRONGLY IN FAVOR OF THE DEFENDANT" AND THAT THIS "RARELY"
IS THE CASE, TOGETHER WITH THE DEFEAT OF THE JENNINGS BILL, IS
CERTAINLY SUFFICIENT EVIDENCE THAT CONGRESS HAD NO INTENTION OF
SERIOUSLY INTERFERING WITH AN FELA PLAINTIFF'S CHOICE OF FORUM.  IN
THIS CONNECTION, WE NOTE THE EMPHASIS IN COLLETT, 337 U.S., AT 64, ON
THE DIFFERENCE BETWEEN THE JENNINGS BILL AND SEC. 1404(A); THIS IS
NARROWED CONSIDERABLY IF WE PERMIT A LARGER DISCRETION IN THE DISTRICT
JUDGE THAN WAS AVAILABLE UNDER FORUM NON CONVENIENS. 

IT IS SAID THAT WE MUST UPHOLD A CLEAR CHANGE IN THE STATUTE MADE BY
THE CONGRESS.  WE CERTAINLY AGREE.  BUT THE LANGUAGE OF SEC. 1404(A),
CONSIDERED AGAINST THE BACKGROUND OF JUDICIAL DISCUSSION IN THIS AREA,
COULD MEAN NOTHING BUT THE DOCTRINE OF FORUM NON CONVENIENS, AND THE
REVISER'S NOTES STATE THAT THE PURPOSE OF THE CHANGE WAS TO APPLY FORUM
NON CONVENIENS RULES TO THE TRANSFER OF CIVIL CASES IN THE FEDERAL
COURTS.  THE DIRECTION OF CONGRESS IS CLEAR AND UNMISTAKABLE.  OUR DUTY
IS SO TO INTERPRET SEC. 1404(A), NOT TO EXPAND AND ENLARGE UPON IT.
CHANGES OF THIS TYPE SHOULD BE MADE BY THE LEGISLATIVE BRANCH.  AND THE
FACT THAT CONGRESS HAS THROUGH CODIFICATION EXTENDED A PREVIOUSLY
RECOGNIZED PROCEDURE TO CIVIL CASES GENERALLY, WITH ONE SLIGHT CHANGE
(I.E., TRANSFER RATHER THAN DISMISSAL), DOES NOT GIVE THIS COURT A
BLANK CHECK TO RECAST THE UNDERLYING LAW TO SUIT ITS FANCY. 

CONCLUDING THAT THE PRIOR TENETS OF FORUM NON CONVENIENS APPLY,
EMBRACING THE STANDARDS LAID DOWN IN GULF OIL AND KOSTER, WE CANNOT
HELP BUT AGREE WITH THE DISTRICT JUDGE THAT HIS DISCRETION WOULD HAVE
BEEN EXERCISED DIFFERENTLY IN THE INSTANT CASE IF HE HAD APPLIED THE
LAW OF THOSE DECISIONS.  WITHOUT DETAILING ALL THE FACTS HERE INVOLVED,
WE NOTE THAT ONE OF THE PLAINTIFFS RESIDED IN THE DISTRICT WHERE THIS
SUIT WAS BROUGHT.  UNDER THE USUAL FORUM NON CONVENIENS APPROACH, THIS
WOULD VIRTUALLY SUFFICE, IN AND OF ITSELF, TO PRECLUDE A REFUSAL TO
RETAIN THE CASE FOR TRIAL.  SEE BARRETT, SUPRA, AT 413; BRAUCHER,
SUPRA, AT 916-917, 919; DAINOW, SUPRA, AT 880.  AFTER ALL, THE FORUM
NON CONVENIENS SITUATION GENERALLY ENVISAGED IS ONE INVOLVING A FOREIGN
CAUSE OF ACTION AND NON-RESIDENT PARTIES.  SEE BLAIR, SUPRA, AT 34;
FOSTER, SUPRA, AT 53.  APPARENTLY BUT ONE JURISDICTION STANDS SQUARELY
BEHIND THE PROPOSITION THAT A COURT MAY DECLINE TO HEAR A PERSONAL
INJURY SUIT, BROUGHT BY A BONA FIDE RESIDENT, IN ORDER TO SPARE THE
DEFENDANT INCONVENIENCE AND EXPENSE.  WILLIAMSON V. NORTH-EASTERN R.
CO., SUPRA.  THAT IS THE LAW IN SCOTLAND, A JURISDICTION LONG NOTED FOR
ITS DISTINCTIVE DOCTRINES IN THIS AREA.  (FN2)  FORUM NON CONVENIENS
HAS NO SUCH IMPACT IN THIS COUNTRY, AND, IN FACT, KOSTER MAY BE
REGARDED AS AN EXTREME DECISION IN DEPRIVING A PLAINTIFF OF HIS HOME
FORUM.  (FN3)  WITH THIS THE STATE OF THE LAW, BOTH NOW AND IN 1948
WHEN THE CODE WAS ADOPTED, WE CERTAINLY SHOULD REQUIRE A MORE EXPLICIT
DIRECTION FROM CONGRESS BEFORE DEPRIVING AN INJURED PARTY OF HIS
PRIVILEGE UNDER THE FELA OF BRINGING SUIT IN HIS OWN DISTRICT - AT
LEAST WHEN THE STANDARDS OF KOSTER HAVE NOT BEEN APPLIED. 

THE DISTRICT JUDGE ADMITTED THAT HE HAD NOT EXERCISED HIS DISCRETION
IN LIGHT OF KOSTER AND GULF OIL, THE APPLICABLE DECISIONS OF THIS
COURT; HE FELT BOUND BY A CONTRARY DECISION OF THE COURT OF APPEALS. 
HE INDICATED VERY CLEARLY THAT HIS DECISION WOULD HAVE BEEN OTHERWISE
IF HE WERE FREE TO FOLLOW THE OPINIONS WE CONSIDER CONTROLLING.  WE
SHOULD REVERSE AND GIVE THE TRIAL JUDGE AN OPPORTUNITY TO EXERCISE HIS
DISCRETION UNDER THE PROPER STANDARDS. 

THE QUESTION IS ONE OF CONSIDERABLE IMPORTANCE IN THE ADMINISTRATION
OF THE LOWER FEDERAL COURTS, AND, CONSIDERING THE INADEQUACY OF APPEAL,
SHOULD BE SETTLED IN THIS CASE IF IT IS TO BE SETTLED AT ALL IN THE
NEAR FUTURE.  EVERY APPELLATE COURT WHICH HAS PASSED ON SEC.  1404(A)
IMPLICITLY RECOGNIZES THE NECESSITY FOR SETTLING ISSUES OF LAW UNDER
THE SECTION.  EVEN THOSE COURTS WHICH HAVE REFUSED RELIEF, EXPRESSING
THE VIEW THAT MANDAMUS IS AN INAPPROPRIATE REMEDY, HAVE GONE ON TO
DISCUSS THE MERITS OF THE QUESTION PRESENTED.  IN RE JOSEPHSON, 218
F.2D 174; ALL STATES FREIGHT, INC. V. MODARELLI, 196 F.2D 1010; CF.
JIFFY LUBRICATOR CO. V. STEWART-WARNER CORP., 177 F.2D 360.  THE
COURT'S OPINION IN THIS CASE, BY RESERVING THE MANDAMUS ISSUE, FOLLOWS
THE SAME COURSE.  WE NOTE, FURTHER, THAT THE MAJORITY OF COURT OF
APPEALS DECISIONS DEALING WITH SEC. 1404(A) FIND MANDAMUS APPROPRIATE
IN CIRCUMSTANCES LESS COMPELLING THAN THESE.  FORD MOTOR CO. V. RYAN,
SUPRA; ATLANTIC COAST LINE R. CO. V. DAVIS, 185 F.2D 766; SHAPIRO V.
BONANZA HOTEL CO., 185 F.2D 777; WIREN V. LAWS, SUPRA; CHICAGO,
R.I.&P.R. CO. V. IGOE, 212 F.2D 378; CF. NICOL V. KOSCINSKI, SUPRA. 

I WOULD REVERSE AND DIRECT THAT THE TRANSFER APPLICATION BE
DETERMINED UNDER FORUM NON CONVENIENS, AND PARTICULARLY THE GULF OIL
AND KOSTER DECISIONS.  THE ANSWER TO THE MAJORITY'S CONTENTION THAT
THIS WOULD UNDULY CURTAIL A DESIRABLE REFORM IS SIMPLY THAT THIS
DISPUTE INVOLVES NOT MERELY "FORUM SHOPPING," BUT THE WHITTLING AWAY BY
JUDICIAL INTERPRETATION OF THE PRIVILEGES AND BENEFITS OF WORKING MEN
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  THE BATTLE OVER THE SCOPE
OF THEIR RIGHTS SHOULD BE FOUGHT OUT IN THE CONGRESS - AS IT WAS IN THE
CASE OF THE JENNINGS BILL - AND NOT IN THE COURTS. 

THE REVISER'S NOTES SAY THAT SEC. 1404(A) GOES NO FURTHER THAN FORUM
NON CONVENIENS.  THAT WAS WHAT CONGRESS ACTED UPON, NOT THE PRIVATE
OPINION OF SOME OF THE MEMBERS OF THE REVISER'S COMMITTEE.   THESE
DISTINGUISHED PARTICIPANTS MAY HAVE THOUGHT THEIR REFORM WENT BEYOND
COLLETT.  IF SO, THEY SHOULD HAVE COMMUNICATED THEIR THOUGHT TO THE
CONGRESS WHERE THE FINAL RESPONSIBILITY RESTS. 

FN1  SEE KOSTER V. LUMBERMENS MUTUAL CASUALTY CO., SUPRA, AT 527
("CONVENIENCE OF THE PARTIES AND THE ENDS OF JUSTICE"); ID., AT 530
("INTERESTS OF JUSTICE"); GULF OIL CORP. V. GILBERT, SUPRA, AT 507
("CONVENIENCE OF WITNESSES AND THE ENDS OF JUSTICE"); CANADA MALTING
CO. V. PATERSON STEAMSHIPS, LTD., 285 U.S. 413, 423 ("DECLINE, IN THE
INTEREST OF JUSTICE, TO EXERCISE JURISDICTION, WHERE THE SUIT IS
BETWEEN ALIENS OR NON-RESIDENTS"); NATIONAL SHAWMUT BANK V. CITY OF
WATERVILLE, 285 MASS. 252, 258, 189 N.E. 92, 95 ("ENDS OF JUSTICE");
UNIVERSAL ADJUSTMENT CORP. V. MIDLAND BANK, 281 MASS. 303, 313, 184
N.E. 152, 158 ("ENDS OF JUSTICE"); GREAT WESTERN R. CO. V. MILLER, 19
MICH. 305, 315 ("INCONVENIENCES AND THE DANGER OF INJUSTICE"); JACKSON
& SONS V. LUMBERMEN'S MUTUAL CASUALTY CO., 86 N.H. 341, 343, 168 A.
895, 896 ("ENDS OF JUSTICE"); LA SOCIETE DU GAZ DE PARIS V. LA SOCIETE
ANONYME DE NAVIGATION "LES ARMATEURS FRANCAIS," (1926) SESS. CAS.
(H.L.)  13, 16, 18, 22 ("THE INTERESTS OF ALL THE PARTIES, AND  ...
THE ENDS OF JUSTICE"); LOGAN V. BANK OF SCOTLAND, (1906) 1 K.B. 141,
149, 150 ("INCONVENIENCE" AND "INJUSTICE"); WILLIAMSON V. NORTH-EASTERN
R. CO., 11 SESS. CAS. (4TH SER.)  596, 598 ("ENDS OF JUSTICE").  THESE
CASES AND THEIR TERMINOLOGY ARE COVERED IN BARRETT, THE DOCTRINE OF
FORUM NON CONVENIENS, 35 CALIF L. REV.  380; BLAIR, THE DOCTRINE OF
FORUM NON CONVENIENS IN ANGLO-AMERICAN LAW, 29 COL. L. REV.  1;
BRAUCHER, THE INCONVENIENT FEDERAL FORUM, 60 HARV. L. REV. 908; DAINOW,
THE INAPPROPRIATE FORUM, 29 ILL. L. REV. 867; FOSTER, PLACE OF TRIAL -
INTERSTATE APPLICATION OF INTRASTATE METHODS OF ADJUSTMENT, 44 HARV. L.
REV. 41. 

FN2  COMMENTATORS, THOUGH ENDORSING THE WIDER USE OF FORUM NON
CONVENIENS, HAVE BEEN CRITICAL OF THE DECISION, DAINOW, SUPRA, AT 884,
N. 73, AND HAVE POINTED UP THE CIVIL LAW BASIS OF ITS REASONING, BLAIR,
SUPRA, AT 21, N. 100. 

THE REASONING IN GORE V. UNITED STATES STEEL CORP., 15 N.J. 301, 104
A.2D 670 (1954), MAY BE CONSISTENT WITH THE WILLIAMSON RESULT, BUT THAT
CASE, DECIDED AFTER SEC. 1404(A) AND RELYING ON LITIGATION UNDER THAT
UNIVERSAL ADJUSTMENT CORP. V. MIDLAND BANK, SUPRA, 281 MASS., AT 315,
184 N.E., AT 159, MUST BE READ IN THE CONTEXT OF THE LITIGATION BEFORE
THE COURT:  SUIT BY A RESIDENT ASSIGNEE OF A FOREIGN CLAIM AGAINST A
FOREIGN CORPORATION.  COMPARE UNITED STATES MERCHANTS' & SHIPPERS' INS.
CO. V. A/S DEN NORSKE AFRIKA OG AUSTRALIE LINE, 65 F.2D 392. 

FN3  SEE AMERICAN RY. EXPRESS CO. V. H. ROUW CO., 173 ARK. 810, 294
S.W. 401; GAMBURG V. RAY, 167 LA. 865, 120 SO. 480; ARIZONA COMMERCIAL
MINING CO. V. IRON CAP COPPER CO., 119 ME. 213, 110 A. 429; PETERS V.
EQUITABLE LIFE ASSUR.  CO., 196 MASS. 143, 81 N.E. 964; TRI-STATE
TRANSIT CO. V. MONDY, 194 MISS.  714, 12 SO. 2D 920; GREGONIS V.
PHILADELPHIA & R. COAL & IRON CO., 235 N.Y. 152, 139 N.E. 223; DE LA
BOUILLERIE V. DE VIENNE, 300 N.Y.  60, 89 N.E.2D 15; CF. O'NEILL V.
CUNARD WHITE STAR, LTD., 160 F.2D 446; THE SAUDADES, 67 F. SUPP. 820. 
EVEN IN THOSE CASES WHERE THE OBJECTION IS THAT THE SUIT CREATES AN
UNREASONABLE BURDEN ON INTERSTATE COMMERCE, THE FACT THAT SUIT IS
BROUGHT IN THE PLAINTIFF'S HOME FORUM, THOUGH IT MAY LACK THE NEAR
CONCLUSIVENESS IT HAS IN FORUM NON CONVENIENS CASES, IS NEVERTHELESS A
FACT OF "HIGH SIGNIFICANCE."  INTERNATIONAL MILLING CO. V. COLUMBIA
TRANSPORTATION CO., 292 U.S. 511, 520. 
..END :





















NATURAL GAS PIPELINE CO. V. PANOMA CORPORATION 349 U.S. 44 


NO. 191.  ARGUED MARCH 28-29, 1955 - DECIDED APRIL 11, 1955 - 271 P.2D
354 AND 272 P.2D 425, REVERSED. 


A STATE MAY NOT FIX A MINIMUM PRICE TO BE PAID FOR NATURAL GAS, AFTER
ITS PRODUCTION AND GATHERING HAS ENDED, BY A COMPANY WHICH TRANSPORTS
THE GAS FOR RESALE IN INTERSTATE COMMERCE; BECAUSE SUCH SALE AND
TRANSPORTATION ARE SUBJECT TO REGULATION BY THE FEDERAL POWER
COMMISSION EXCLUSIVELY. 

NATURAL GAS PIPELINE CO. V. PANOMA CORPORATION ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA.* 

*TOGETHER WITH NO. 321, NATURAL GAS PIPELINE CO. V. CORPORATION
COMMISSION OF OKLAHOMA ET AL, ALSO ON APPEAL FROM THE SAME COURT,
ARGUED MARCH 29, 1955. 

PER CURIAM. 

IN THESE CASES OKLAHOMA HAS ATTEMPTED TO FIX A MINIMUM PRICE TO BE
PAID FOR NATURAL GAS, AFTER ITS PRODUCTION AND GATHERING HAS ENDED, BY
A COMPANY WHICH TRANSPORTS THE GAS FOR RESALE IN INTERSTATE COMMERCE. 
WE HELD IN PHILLIPS PETROLEUM CO. V. WISCONSIN, 347 U.S. 672, THAT SUCH
A SALE AND TRANSPORTATION CANNOT BE REGULATED BY A STATE BUT ARE
SUBJECT TO THE EXCLUSIVE REGULATION OF THE FEDERAL POWER COMMISSION. 
THE PHILLIPS CASE, THEREFORE, CONTROLS THIS ONE. 

WE DISAGREE WITH THE CONTENTION OF THE APPELLEES THAT CITIES SERVICE
GAS CO. V. PEERLESS OIL AND GAS CO., 340 U.S. 179, AND PHILLIPS
PETROLEUM CO. V. OKLAHOMA, 340 U.S. 190, ARE APPLICABLE HERE.  IN THOSE
CASES WE WERE DEALING WITH CONSTITUTIONAL QUESTIONS AND NOT THE
CONSTRUCTION OF THE NATURAL GAS ACT.  THE LATTER QUESTION WAS
SPECIFICALLY NOT PASSED UPON IN THOSE CASES.  REVERSED. 

MR. JUSTICE DOUGLAS, BEING OF OPINION THAT STATE REGULATION OF PRICE
IS PERMISSIBLE UNTIL THE FEDERAL PRICE REGULATION PERMITTED BY PHILLIPS
PETROLEUM CO. V. WISCONSIN, 347 U.S. 672, IS IMPOSED, DISSENTS. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :









PARISSI V. TELECHRON, INC. 349 U.S. 46 


NO. 302.  ARGUED MARCH 29, 1955 - DECIDED APRIL 11, 1955 - REVERSED. 


IN THIS CASE, RECEIPT BY THE CLERK OF THE DISTRICT COURT OF A NOTICE
OF APPEAL WITHIN THE 30-DAY PERIOD PRESCRIBED BY 28 U.S.C. SEC. 2107
SATISFIED THE REQUIREMENTS OF THAT SECTION; AND UNTIMELY PAYMENT OF THE
$5 FEE REQUIRED BY 28 U.S.C. SEC. 1917 DID NOT VITIATE THE NOTICE OF
APPEAL. 

PARISSI V. TELECHRON, INC. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  THE PETITIONER'S NOTICE OF APPEAL TO THE
COURT OF APPEALS FROM A JUDGMENT OF THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF NEW YORK, TOGETHER WITH HIS APPEAL BOND, WAS RECEIVED AT
THE OFFICE OF THE CLERK OF THE DISTRICT COURT WITHIN THE 30 DAYS
PRESCRIBED BY 28 U.S.C. SEC. 2107 FOR FILING A NOTICE OF APPEAL.  IN
DISPATCHING THESE PAPERS THE PETITIONER INADVERTENTLY FAILED TO INCLUDE
THE $5 FEE REQUIRED BY 28 U.S.C.  SEC. 1917 TO BE PAID "UPON THE
FILING" OF A NOTICE OF APPEAL.  THE CLERK NOTIFIED THE PETITIONER OF
HIS OMISSION, AND DECLINED TO "FILE" THE NOTICE OF APPEAL UNTIL HE
RECEIVED THE $5 FEE THREE OR FOUR DAYS LATER.  BY THAT TIME THE 30-DAY
PERIOD FOR APPEAL HAD EXPIRED.  UPON PETITIONER'S MOTION THE DISTRICT
COURT MADE A NUNC PRO TUNC ORDER ACCORDING THE NOTICE OF APPEAL A
FILING DATE AS OF THE DATE IT WAS ORGINALLY RECEIVED BY THE CLERK. 

THE COURT OF APPEALS, WITHOUT OPINION, DISMISSED THE APPEAL AS
UNTIMELY.  WE THINK THAT THE CLERK'S RECEIPT OF THE NOTICE OF APPEAL
WITHIN THE 30-DAY PERIOD SATISFIED THE REQUIREMENTS OF SEC. 2107, AND
THAT UNTIMELY PAYMENT OF THE SEC. 1917 FEE DID NOT VITIATE THE VALIDITY
OF PETITIONER'S NOTICE OF APPEAL.  ANYTHING TO THE CONTRARY IN SUCH
CASES AS MONDAKOTA GAS CO. V. MONTANA-DAKOTA UTILITIES CO., 194 F.2D
705 (C.A. 9TH CIR. 1952), WE DISAPPROVE.  OUR CONCLUSION DOES NOT LEAVE
SEC. 1917 WITHOUT OTHER SANCTIONS.  REVERSED. 
..END :












UNITED STATES V. BRAMBLETT 348 U.S. 503 


NO. 159.  ARGUED FEBRUARY 7, 1955 - DECIDED APRIL 4, 1955 - 120 F. SUPP.
857, REVERSED. 


THE DISBURSING OFFICE OF THE HOUSE OF REPRESENTATIVES IS A "DEPARTMENT
OR AGENCY" OF THE UNITED STATES WITHIN THE MEANING OF 18 U.S.C. SEC.
1001, WHICH FORBIDS THE WILLFUL FALSIFICATION OF A MATERIAL FACT "IN
ANY MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE
UNITED STATES."  PP. 503-510. 

(A)  THE LEGISLATIVE HISTORY OF THIS SECTION SHOWS THAT IT WAS THE
INTENTION OF CONGRESS TO MAKE IT APPLICABLE TO THE LEGISLATIVE AND
JUDICIAL BRANCHES OF THE GOVERNMENT.  PP. 504-508. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY THE DEFINITIONS OF
"DEPARTMENT" AND "AGENCY" IN 18 U.S.C. SEC. 6.  PP. 508-509. 

(C)  THE DEVELOPMENT, SCOPE AND PURPOSE OF SEC. 1001 SHOWS THAT
"DEPARTMENT," AS USED IN THIS CONTEXT, WAS MEANT TO DESCRIBE THE
EXECUTIVE, LEGISLATIVE AND JUDICIAL BRANCHES OF THE GOVERNMENT.  P.
509. 

(D)  THAT CRIMINAL STATUTES MUST BE CONSTRUED STRICTLY DOES NOT MEAN
THAT EVERY CRIMINAL STATUTE MUST BE GIVEN THE NARROWEST POSSIBLE
MEANING IN COMPLETE DISREGARD OF THE PURPOSE OF THE LEGISLATURE.  PP.
509-510. 

UNITED STATES V. BRAMBLETT. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

ON NOVEMBER 10, 1953, AN 18-COUNT INDICTMENT WAS RETURNED IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CHARGING THE
APPELLEE, A FORMER MEMBER OF CONGRESS, WITH VIOLATIONS OF 18 U.S.C.
SEC. 1001.  (FN1)  DURING THE COURSE OF THE TRIAL A JUDGMENT OF
ACQUITTAL WAS ORDERED ON COUNTS 8 THROUGH 18 OF THE INDICTMENT.  THE
JURY RETURNED A VERDICT OF GUILTY ON THE REMAINING 7 COUNTS WHICH
CHARGED THE APPELLEE WITH HAVING FALSELY AND FRAUDULENTLY REPRESENTED
TO THE DISBURSING OFFICE OF THE HOUSE OF REPRESENTATIVES THAT A NAMED
WOMAN WAS ENTITLED TO COMPENSATION AS HIS OFFICIAL CLERK.  THE DISTRICT
COURT GRANTED APPELLEE'S MOTION IN ARREST OF JUDGMENT, HOLDING THAT HE
HAD NOT FALSIFIED A MATERIAL FACT "WITHIN THE JURISDICTION OF ANY
DEPARTMENT OR AGENCY OF THE UNITED STATES" SINCE THE DISBURSING OFFICE
WAS NOT A DEPARTMENT OR AGENCY WITHIN THE MEANING OF THE STATUTE.  THE
DISTRICT COURT WAS OF THE OPINION THAT THE STATUTE DOES NOT AFFORD
PROTECTION TO THE LEGISLATIVE AND JUDICIAL BRANCHES OF THE GOVERNMENT. 
THE GOVERNMENT BROUGHT THIS CASE HERE ON DIRECT APPEAL PURSUANT TO 18
U.S.C. SEC. 3731.  REFERENCE TO THE EVOLUTION OF SEC. 1001 WILL ASSIST
IN DETERMINING THE CORRECTNESS OF THE DECISION BELOW.  A DETAILED
ANALYSIS APPEARS IN THE OPINION OF THE TRIAL COURT.  120 F. SUPP. 857. 

IN THE WAKE OF A SPATE OF FRAUDS UPON THE GOVERNMENT.  THE ACT OF MARCH
2, 1863, 12 STAT. 696, "AN ACT TO PREVENT AND PUNISH FRAUDS UPON THE
GOVERNMENT OF THE UNITED STATES," MADE IT A CRIMINAL OFFENSE FOR: 

"ANY PERSON IN THE LAND OR NAVAL FORCES OF THE UNITED STATES  ...
(TO) MAKE OR CAUSE TO BE MADE, OR PRESENT OR CAUSE TO BE PRESENTED FOR
PAYMENT OR APPROVAL TO OR BY ANY PERSON OR OFFICER IN THE CIVIL OR
MILITARY SERVICE OF THE UNITED STATES, ANY CLAIM UPON OR AGAINST THE
GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT OR OFFICER THEREOF,
KNOWING SUCH CLAIM TO BE FALSE, FICTITIOUS, OR FRAUDULENT  ...  ." 

THIS PROVISION CLEARLY COVERS THE PRESENTATION OF FALSE CLAIMS
AGAINST ANY COMPONENT OF THE GOVERNMENT TO ANY OFFICER OF THE
GOVERNMENT.  THE PROHIBITION OF THE STATUTE IS BROAD, ALTHOUGH ITS
APPLICATION WAS LIMITED TO MILITARY PERSONNEL. 

FALSE STATEMENTS WERE PROSCRIBED IN THE FOLLOWING CLAUSE OF THE SAME

"ANY PERSON IN SUCH FORCES OR SERVICE WHO SHALL, FOR THE PURPOSE OF
OBTAINING, OR AIDING IN OBTAINING, THE APPROVAL OR PAYMENT OF SUCH
CLAIM, MAKE, USE, OR CAUSE TO BE MADE OR USED, ANY FALSE BILL, RECEIPT,
VOUCHER, ENTRY, ROLL, ACCOUNT, CLAIM, STATEMENT, CERTIFICATE,
AFFIDAVIT, OR DEPOSITION, KNOWING THE SAME TO CONTAIN ANY FALSE OR
FRAUDULENT STATEMENT OR ENTRY." 

IT WILL BE NOTED THAT THERE IS HERE NO SPECIFICATION AS TO THE GROUP
TO WHOM THE FALSE STATEMENTS HAD TO BE MADE.  THE PROVISION IN THE
FALSE CLAIMS SECTION WHICH MADE THE PRESENTATION OF FALSE CLAIMS TO
"ANY PERSON OR OFFICER IN THE CIVIL OR MILITARY SERVICE OF THE UNITED
STATES" PUNISHABLE MIGHT REASONABLY HAVE BEEN APPLIED HERE.  THERE
WOULD BE NO JUSTIFICATION FOR GIVING THE FALSE STATEMENTS SECTION A
NARROWER SCOPE, FOR, SO LONG AS THE FALSE STATEMENT WAS MADE WITH THE
INDICATED PURPOSE, THE STATUTE MADE IT PUNISHABLE. 

FROM 1863 TO 1934 THE COVERAGE OF THE STATUTE WAS AT VARIOUS TIMES
EXTENDED, BUT NO CHANGE WAS MADE WHICH COULD BE OR IS TAKEN BY THE
APPELLEE AS RESTRICTING THE SCOPE OF THE FALSE STATEMENTS PROVISION TO
THE EXECUTIVE BRANCH.  (FN2) 

THE WORDS URGED AS CRUCIAL IN THIS CASE FIRST APPEARED IN THE
REVISION OF 1934.  48 STAT.  996.  NO CHANGE WAS MADE IN THE FALSE
CLAIMS PORTION OF THE STATUTE, BUT THE FALSE STATEMENTS SECTION WAS
AMENDED TO READ: 

"OR WHOEVER SHALL KNOWINGLY AND WILLFULLY FALSIFY OR CONCEAL OR COVER
UP BY ANY TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKE OR CAUSE TO
BE MADE ANY FALSE OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKE
OR USE OR CAUSE TO BE MADE OR USED ANY FALSE BILL, RECEIPT, VOUCHER,
ROLL, ACCOUNT, CLAIM, CERTIFICATE, AFFIDAVIT, OR DEPOSITION, KNOWING
THE SAME TO CONTAIN ANY FRAUDULENT OR FICTITIOUS STATEMENT OR ENTRY, 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; ...  ." 

THE AMENDMENT DELETED ALL WORDS AS TO PURPOSE AND INSERTED THE
ITALICIZED PHRASE.  UNDER THE PRIOR STATUTES THERE HAD BEEN NO
POSSIBILITY OF A RESTRICTIVE INTERPRETATION WHICH WOULD READ OUT
FALSIFICATIONS MADE TO OFFICERS OF THE LEGISLATIVE OR JUDICIAL
BRANCHES.  DID THE INSERTION OF THE NEW PHRASE EXCLUDE THOSE BRANCHES? 
WE THINK NOT. 

THE 1934 REVISION WAS LARGELY THE PRODUCT OF THE URGING OF THE
SECRETARY OF THE INTERIOR.  (FN3) THE SENATE REPORT, S. REP. NO. 1202,
73D CONG., 2D SESS., INDICATES THAT ITS PURPOSE WAS TO BROADEN THE
STATUTE SO AS TO REACH NOT ONLY FALSE PAPERS PRESENTED IN CONNECTION
WITH A CLAIM AGAINST THE GOVERNMENT, BUT ALSO NONMONETARY FRAUDS SUCH
AS THOSE INVOLVED IN THE "HOT-OIL" SHIPMENTS.  A GREATER VARIETY OF
FALSE STATEMENTS WERE MEANT TO BE INCLUDED.  (FN4)  THERE IS NO
INDICATION IN EITHER THE COMMITTEE REPORTS (FN5) OR IN THE
CONGRESSIONAL DEBATES (FN6) THAT THE SCOPE OF THE STATUTE WAS TO BE IN
ANY WAY RESTRICTED.  THERE WAS CERTAINLY NO SUGGESTION THAT THE NEW
PHRASE WAS TO BE INTERPRETED SO THAT ONLY FALSIFICATIONS MADE TO
EXECUTIVE AGENCIES WOULD BE REACHED.  (FN7) APPARENTLY THE ITALICIZED
PHRASE WAS INSERTED SIMPLY TO COMPENSATE FOR THE DELETED LANGUAGE AS TO
PURPOSE - TO INDICATE THAT NOT ALL FALSIFICATIONS BUT ONLY THOSE MADE
TO GOVERNMENT ORGANS WERE REACHED. 

THE 1948 REVISION PUT THE STATUTE INTO ITS PRESENT FORM.  (FN8)  62
STAT. 683.  THE FALSE CLAIMS PROVISION BECAME SEC. 287 OF TITLE 18 AND
RETAINED ITS PRIOR FORM WITHOUT SIGNIFICANT CHANGE.  SECTION 1001 IS
THE "FALSE STATEMENTS" SECTION.  EXCEPT FOR HOUSEKEEPING CHANGES IN
LANGUAGE WHICH ARE OF NO PARTICULAR SIGNIFICANCE, THE DELETION OF THE
REFERENCE TO CORPORATIONS, AND THE TRANSPOSITION OF THE "IN ANY MATTER"
CLAUSE TO THE BEGINNING OF THE SECTION, THERE HAS BEEN NO CHANGE SINCE
THE 1934 STATUTE.  THERE IS NO INDICATION THAT THE REVISION WAS
INTENDED TO WORK ANY SUBSTANTIVE CHANGE.  IT WOULD THUS BE SUPPOSED
THAT THE STATUTE RETAINED ITS BROAD SCOPE, A SCOPE AT LEAST AS BROAD AS
THE FALSE CLAIMS SECTION, AND COULD NOT BE LIMITED TO FALSIFICATIONS
MADE TO EXECUTIVE AGENCIES. 

THE APPELLEE AND THE DISTRICT COURT RELY ON SEC. 6 OF TITLE 18 TO
RESTRICT THE SCOPE OF SEC. 1001.   SECTION 6 PROVIDES: 

"AS USED IN THIS TITLE: 

"THE TERM 'DEPARTMENT' MEANS ONE OF THE EXECUTIVE DEPARTMENTS
ENUMERATED IN SECTION 1 OF TITLE 5, UNLESS THE CONTEXT SHOWS THAT SUCH
TERM WAS INTENDED TO DESCRIBE THE EXECUTIVE, LEGISLATIVE, OR JUDICIAL
BRANCHES OF THE GOVERNMENT. 

"THE TERM 'AGENCY' INCLUDES ANY DEPARTMENT, INDEPENDENT
ESTABLISHMENT, COMMISSION, ADMINISTRATION, AUTHORITY, BOARD OR BUREAU
OF THE UNITED STATES OR ANY CORPORATION IN WHICH THE UNITED STATES HAS
A PROPRIETARY INTEREST, UNLESS THE CONTEXT SHOWS THAT SUCH TERM WAS
INTENDED TO BE USED IN A MORE LIMITED SENSE." 

THE FALSIFICATION HERE INVOLVED WAS HELD TO BE WITHIN THE
JURISDICTION OF THE DISBURSING OFFICE OF THE HOUSE WHICH IT WAS THOUGHT
COULD NOT MEET THE DEFINITIONS IN SEC. 6.  IT SEEMED SIGNIFICANT TO THE
TRIAL COURT "THAT TITLE 18, SEC. 287 (FORMERLY THE FIRST PART OF OLD
TO ANY PERSON OR OFFICER IN THE CIVIL, MILITARY, OR NAVAL SERVICE OF
THE UNITED STATES, OR TO ANY DEPARTMENT OR AGENCY THEREOF, ANY CLAIM
...  KNOWING SUCH CLAIM TO BE FALSE,'" WHEREAS SEC. 1001 DOES NOT
CONTAIN SUCH LANGUAGE.  120 F. SUPP., AT 861. 

IT MIGHT BE ARGUED THAT THE MATTER HERE INVOLVED WAS WITHIN THE
JURISDICTION OF THE TREASURY DEPARTMENT, AS THE APPELLEE'S
MISSTATEMENTS WOULD REQUIRE THE PAYMENT OF FUNDS FROM THE UNITED STATES
TREASURY.  OR, VIEWING THIS AS A MATTER WITHIN THE JURISDICTION OF THE
DISBURSING OFFICE, IT MIGHT BE ARGUED, AS THE GOVERNMENT DOES, THAT
THAT BODY IS AN "AUTHORITY" WITHIN THE SEC. 6 DEFINITION OF "AGENCY." 
WE DO NOT REST OUR DECISION ON EITHER OF THOSE INTERPRETATIONS.  THE
CONTEXT IN WHICH THIS LANGUAGE IS USED CALLS FOR AN UNRESTRICTED
INTERPRETATION.  THIS IS ENFORCED BY ITS LEGISLATIVE HISTORY.  IT WOULD
DO VIOLENCE TO THE PURPOSE OF CONGRESS TO LIMIT THE SECTION TO
FALSIFICATIONS MADE TO THE EXECUTIVE DEPARTMENTS.  CONGRESS COULD NOT
HAVE INTENDED TO LEAVE FRAUDS SUCH AS THIS WITHOUT PENALTY.  THE
DEVELOPMENT, SCOPE AND PURPOSE OF THE SECTION SHOWS THAT "DEPARTMENT,"
AS USED IN THIS CONTEXT, WAS MEANT TO DESCRIBE THE EXECUTIVE,
LEGISLATIVE AND JUDICIAL BRANCHES OF THE GOVERNMENT.  THE DIFFERENCE
BETWEEN THE LANGUAGE OF SEC. 287 AND THAT OF SEC. 1001 CAN ONLY BE
UNDERSTOOD IN THE LIGHT OF LEGISLATIVE HISTORY.  THAT HISTORY DISPELS
THE POSSIBILITY OF ATTACHING ANY SIGNIFICANCE TO THE DIFFERENCE. 

THAT CRIMINAL STATUTES ARE TO BE CONSTRUED STRICTLY IS A PROPOSITION
WHICH CALLS FOR THE CITATION OF NO AUTHORITY.  BUT THIS DOES NOT MEAN
THAT EVERY CRIMINAL STATUTE MUST BE GIVEN THE NARROWEST POSSIBLE
MEANING IN COMPLETE DISREGARD OF THE PURPOSE OF THE LEGISLATURE. 
(FN9) 

THE JUDGMENT BELOW IS ACCORDINGLY REVERSED. 

FN1  "WHOEVER, IN ANY MATTER WITHIN THE JURISDICTION OF ANY
DEPARTMENT OR AGENCY OF THE UNITED STATES KNOWINGLY AND WILLFULLY
FALSIFIES, CONCEALS OR COVERS UP BY ANY TRICK, SCHEME, OR DEVICE A
MATERIAL FACT, OR MAKES ANY FALSE, FICTITIOUS OR FRAUDULENT STATEMENTS
OR REPRESENTATIONS, OR MAKES OR USES ANY FALSE WRITING OR DOCUMENT
KNOWING THE SAME TO CONTAIN ANY FALSE, FICTITIOUS OR FRAUDULENT
STATEMENT OR ENTRY, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED
NOT MORE THAN FIVE YEARS, OR BOTH." 

FN2  UNDER THE CODIFICATION OF DECEMBER 1, 1873, APPROVED JUNE 22,
1874, R.S. SEC. 5438, THE STATUTE WAS EXTENDED TO COVER "EVERY PERSON"
NOT MERELY MILITARY PERSONNEL.  THE ACT OF MAY 30, 1908, 35 STAT. 555,
SIMPLY CHANGED THE PENALTIES, AND IN THE CODIFICATION OF 1909, 35 STAT.
1088, SEC. 5438 WAS REDESIGNED SEC. 35.  SECTION 35 WAS IN TURN REVISED
IN 1918, 40 STAT. 1015.  THE FALSE CLAIMS PROVISION WAS EXTENDED TO
COVER CORPORATIONS IN WHICH THE UNITED STATES HELD STOCK; AND FALSE
STATEMENTS WERE PROSCRIBED IF MADE "FOR THE PURPOSE AND WITH THE INTENT
OF CHEATING AND SWINDLING OR DEFRAUDING THE GOVERNMENT OF THE UNITED
STATES" AS WELL AS IF MADE FOR THE PURPOSE OF OBTAINING PAYMENT OF A
FALSE CLAIM. 

FN3  FOR A DISCUSSION OF THE LEGISLATIVE HISTORY OF THE ACT, SEE
UNITED STATES V. GILLILAND, 312 U.S. 86, 93-95. 

FN4  IN UNITED STATES V. COHN, 270 U.S. 339, THE COURT HELD THAT THE
1918 ACT DID NOT PROSCRIBE FALSE STATEMENTS MADE TO A CUSTOMS COLLECTOR
WHERE THE PURPOSE WAS NOT TO DEFRAUD THE GOVERNMENT OF EITHER ITS MONEY
OR PROPERTY.  AFTER THE 1934 AMENDMENT, HOWEVER, THE COURT SUSTAINED AN
INDICTMENT CHARGING THE DEFENDANTS WITH WILLFULLY FALSIFYING REPORTS
REQUIRED TO BE FILED UNDER THE "HOT-OIL" ACT OF FEBRUARY 22, 1935.  THE
COURT STATED THAT THE PURPOSE OF THE 1934 AMENDMENT WAS TO REMOVE THE
PRIOR "RESTRICTION TO CASES INVOLVING PECUNIARY OR PROPERTY LOSS TO THE
GOVERNMENT."  UNITED STATES V. GILLILAND, 312 U.S. 86, 93. 

FN5  S. REP. NO. 1202; H.R. REP. NO. 1463, 73D CONG., 2D SESS. 

FN6  78 CONG. REC. 8136, 11270, 11513. 

FN7  IN ROMNEY V. UNITED STATES, 83 U.S. APP. D.C. 150, 167 F.2D 521,
THE SERGEANT AT ARMS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED
STATES WAS CONVICTED OF PRESENTING FALSE STATEMENTS OF HIS ACCOUNTS AND
OF CONCEALING SHORTAGES IN REPORTING TO THE GENERAL ACCOUNTING OFFICE,
WHICH WAS CREATED AS AN ESTABLISHMENT "INDEPENDENT OF THE EXECUTIVE
DEPARTMENTS AND UNDER THE CONTROL AND DIRECTION OF THE COMPTROLLER
GENERAL OF THE UNITED STATES."  42 STAT. 23, 31 U.S.C. SEC. 41. 

FN8  IN 1938, SEC. 35 WAS DIVIDED INTO SUBSECTIONS, BUT THE PART OF
THE STATUTE WITH WHICH WE ARE HERE CONCERNED WAS LEFT UNCHANGED.  52
STAT. 197. 

FN9  CF. UNITED STATES EX REL. MARCUS V. HESS, 317 U.S. 537; SPIVEY
V. UNITED STATES, 109 F.2D 181. 

THE CHIEF JUSTICE, MR. JUSTICE BURTON AND MR. JUSTICE HARLAN TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :
















AMALGAMATED CLOTHING WORKERS OF AMERICA V. RICHMAN BROTHERS CO. 348 U.S.
511 


NO. 173.  ARGUED MARCH 4, 7, 1955 - DECIDED APRIL 4, 1955 - 211 F.2D
449, AFFIRMED. 


WITHOUT APPLYING TO THE NATIONAL LABOR RELATIONS BOARD FOR RELIEF, A
CORPORATION ENGAGED IN INTERSTATE COMMERCE SUED IN A STATE COURT TO
ENJOIN A LABOR UNION FROM PEACEFULLY PICKETING THE CORPORATION'S PLACES
OF BUSINESS, ON THE GROUND THAT SUCH CONDUCT CONSTITUTED A COMMON-LAW
CONSPIRACY AND A STATUTORY AND COMMON-LAW RESTRAINT OF TRADE IN
VIOLATION OF STATE LAW.  CLAIMING THAT THE MATTER WAS IN THE EXCLUSIVE
JURISDICTION OF THE NATIONAL LABOR RELATIONS BOARD AND THAT THE STATE
COURT HAD NO JURISDICTION, THE UNION SUED IN A FEDERAL DISTRICT COURT
TO ENJOIN THE CORPORATION FROM FURTHER PROSECUTION OF ITS SUIT IN THE
STATE COURT, BASING JURISDICTION ON 28 U.S.C.  SECS. 1337 AND 1651. 
HELD:  UNDER 28 U.S.C. SEC. 2283, THE FEDERAL DISTRICT COURT WAS DENIED
POWER TO ENJOIN THE PROCEEDINGS IN THE STATE COURT.  PP. 512-521. 

1.  THE CLEAR-CUT PROHIBITION OF SEC. 2283 AGAINST A FEDERAL COURT
GRANTING AN INJUNCTION TO STAY PROCEEDINGS IN A STATE COURT CANNOT BE
HELD INAPPLICABLE WHENEVER A PARTY APPLYING TO A FEDERAL DISTRICT COURT
TO ENJOIN PROCEEDINGS IN A STATE COURT ALLEGES THAT THE STATE COURT IS
WITHOUT JURISDICTION OF THE SUBJECT MATTER BECAUSE IT HAS INVADED A
FIELD PRE-EMPTED BY CONGRESS.  PP. 514-516. 

2.  THE SPECIFIC EXCEPTION IN SEC. 2283 WHICH PERMITS AN INJUNCTION
TO ISSUE "AS EXPRESSLY AUTHORIZED BY ACT OF CONGRESS" IS NOT APPLICABLE
TO THIS CASE.  THE TAFT-HARTLEY ACT AUTHORIZES THE NATIONAL LABOR
RELATIONS BOARD AND ITS REPRESENTATIVES TO APPLY TO A DISTRICT COURT
FOR INJUNCTIVE RELIEF IN CERTAIN CIRCUMSTANCES; BUT IT DOES NOT
AUTHORIZE PRIVATE LITIGANTS TO APPLY FOR SUCH RELIEF.  PP. 516-519. 

3.  NOR IS THIS CASE WITHIN THE SPECIFIC EXCEPTION TO SEC. 2283 WHICH
PERMITS A FEDERAL COURT TO ISSUE AN INJUNCTION "WHERE NECESSARY IN AID
OF ITS JURISDICTION."  PP. 519-521. 

AMALGAMATED CLOTHING WORKERS OF AMERICA ET AL. V. RICHMAN BROTHERS CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN WEBER V. ANHEUSER-BUSCH, INC., 348 U.S. 468, DECIDED LAST MONDAY
ON WRIT OF CERTIORARI TO THE MISSOURI SUPREME COURT, WE CONSIDERED THE
JURISDICTION OF A STATE COURT TO ENJOIN CONDUCT WHICH IN ONE ASPECT
BROUGHT IT WITHIN EXCLUSIVE FEDERAL AUTHORITY UNDER THE TAFT-HARTLEY
ACT AND IN ANOTHER CONSTITUTED A VIOLATION OF A STATE STATUTE AGAINST
RESTRAINT OF TRADE.  IN THIS CASE WE HAVE TO DECIDE THE QUESTION
WHETHER, UNDER SIMILAR CIRCUMSTANCES, A UNION HAS OPEN TO IT, WITHOUT
RESORTING TO THE APPELLATE PROCEDURES OF THE STATE AND EVENTUALLY OF
THIS COURT, JURISDICTION OF A FEDERAL DISTRICT COURT TO ENJOIN THE
EMPLOYER FROM PURSUING HIS ACTION IN THE STATE COURT. 

PETITIONER, AN UNINCORPORATED ASSOCIATION OF CLOTHING WORKERS, WAS
RESPONSIBLE FOR PEACEFUL PICKETING OF A NUMBER OF RESPONDENT'S RETAIL
STORES, PRESUMABLY TO COMPEL ITS FACTORY EMPLOYEES TO JOIN THE UNION. 
RESPONDENT, AN OHIO CORPORATION ENGAGED IN THE MANUFACTURE AND SALE OF
MEN'S CLOTHING IN INTERSTATE COMMERCE, FILED SUIT IN THE COURT OF
COMMON PLEAS FOR CUYAHOGA COUNTY, OHIO, ALLEGING THAT THE UNION'S
CONDUCT CONSTITUTED A COMMON-LAW CONSPIRACY AS WELL AS A STATUTORY AND
COMMON-LAW RESTRAINT OF TRADE.  IT PRAYED FOR TEMPORARY AND PERMANENT
INJUNCTIONS.  THE UNION BROUGHT PROCEEDINGS TO REMOVE THE CASE TO THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO,
CLAIMING THAT THE EMPLOYER'S PETITION ALLEGED FACTS BRINGING THE CASE
WITHIN THE ORIGINAL JURISDICTION OF THE DISTRICT COURT AS A CIVIL
ACTION ARISING UNDER THE TAFT-HARTLEY ACT.  28 U.S.C. SEC. 1337.  THAT
COURT REMANDED THE ACTION TO THE STATE COURT ON THE GROUND THAT IF, AS
THE UNION CONTENDED, THE COMPLAINT IN EFFECT ALLEGED A VIOLATION OF
SEC. 8(B)(1)(A) OF THE TAFT-HARTLEY ACT, UNDER THE DECISION IN GARNER
V. TEAMSTERS UNION, 346 U.S. 485, ONLY THE NATIONAL LABOR RELATIONS
BOARD HAD JURISDICTION OF ITS SUBJECT MATTER.  RICHMAN BROTHERS CO. V.
AMALGAMATED CLOTHING WORKERS, 114 F. SUPP. 185, REHEARING DENIED, 116
F. SUPP. 800. 

UPON REMAND, THE UNION INVOKED THE GROUND TAKEN BY THE DISTRICT COURT
IN DENYING ITS JURISDICTION IN A MOTION TO DISMISS THE ACTION IN THE
STATE COURT.  THIS MOTION WAS DENIED WITHOUT OPINION.  THE UNION THEN
FILED THIS COMPLAINT IN THE SAME DISTRICT COURT SEEKING AN INJUNCTION
WHICH WOULD REQUIRE THE EMPLOYER TO WITHDRAW THE ACTION COMMENCED IN
THE STATE COURT.  JURISDICTION WAS BASED ON 28 U.S.C. SEC. 1337.  THIS
PROVISION CONFERS JURISDICTION ON FEDERAL COURTS OVER ANY CIVIL ACTION
ARISING UNDER ANY ACT OF CONGRESS REGULATING INTERSTATE COMMERCE.  THE
UNION ALSO RELIED ON 28 U.S.C. SEC. 1651, THE ALL-WRITS SECTION.  THE
DISTRICT COURT HELD THAT UNDER 28 U.S.C. SEC. 2283, WHICH PROHIBITS
FEDERAL INJUNCTIONS AGAINST STATE COURT PROCEEDINGS, IT WAS WITHOUT
POWER TO GRANT THE REQUESTED RELIEF, INASMUCH AS THE ACTION DID NOT
COME WITHIN ANY OF THE EXCEPTIONS TO THAT GENERAL PROHIBITION.  THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT UNANIMOUSLY AFFIRMED, 211 F.2D
449.   THE JURISDICTIONAL QUESTION IS PLAINLY IMPORTANT IN THIS AREA OF
FEDERAL-STATE RELATIONS AND WE GRANTED CERTIORARI, 348 U.S. 813. 

SUBSEQUENT TO THE AFFIRMANCE BY THE COURT OF APPEALS, THE OHIO COURT
OF COMMON PLEAS RULED FAVORABLY ON THE EMPLOYER'S MOTION FOR A
TEMPORARY INJUNCTION.  RICHMAN BROTHERS CO. V. AMALGAMATED CLOTHING
WORKERS, 51 OHIO OP. 145, 116 N.E.2D 60. 

1.  UNDER THE DECISION IN WEBER V. ANHEUSER-BUSCH, INC., WE MAY
ASSUME THAT THE CONDUCT IN CONTROVERSY IS SUBJECT TO WHATEVER RELIEF
THE TAFT-HARTLEY ACT MAY AFFORD, AND THEREFORE IS OUTSIDE STATE
AUTHORITY.  THE QUESTION IS WHETHER A FEDERAL COURT MAY, BEFORE
COMPLAINT HAS BEEN ENTERTAINED BY THE BOARD AND AT THE REQUEST OF ONE
OF THE PRIVATE PARTIES, ENJOIN THE ATTEMPT TO SECURE RELIEF THROUGH
STATE PROCEEDINGS. 

WE NEED NOT RE-EXAMINE THE SERIES OF DECISIONS, PRIOR TO THE
ENACTMENT OF TITLE 28 OF THE UNITED STATES CODE IN 1948, WHICH APPEARED
TO RECOGNIZE IMPLIED EXCEPTIONS TO THE HISTORIC PROHIBITION AGAINST
FEDERAL INTERFERENCE WITH STATE JUDICIAL PROCEEDINGS.  SEE TOUCEY V.
NEW YORK LIFE INS. CO., 314 U.S. 118.  BY THAT ENACTMENT, CONGRESS MADE
CLEAR BEYOND CAVIL THAT THE PROHIBITION IS NOT TO BE WHITTLED AWAY BY
JUDICIAL IMPROVISATION.  FORMER SEC. 265 OF THE JUDICIAL CODE
PROVIDED: 

"THE WRIT OF INJUNCTION SHALL NOT BE GRANTED BY ANY COURT OF THE
UNITED STATES TO STAY PROCEEDINGS IN ANY COURT OF A STATE, EXCEPT IN
CASES WHERE SUCH INJUNCTION MAY BE AUTHORIZED BY ANY LAW RELATING TO
PROCEEDINGS IN BANKRUPTCY."  36 STAT. 1162. 

THE 1948 ENACTMENT REVISED AS WELL AS CODIFIED.  THE OLD SECTION WAS
THUS EMBODIED IN THE NEW SEC. 2283:

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

IN LIEU OF THE BANKRUPTCY EXCEPTION OF SEC. 265, CONGRESS SUBSTITUTED
A GENERALIZED PHRASE COVERING ALL EXCEPTIONS, SUCH AS THAT OF THE
INTERPLEADER ACT, 28 U.S.C. SEC. 2361, TO BE FOUND IN FEDERAL
STATUTES.  TWO NEWLY FORMULATED EXCEPTIONS TO THE GENERAL PROHIBITION
DEAL WITH PROBLEMS OF JUDICIAL ADMINISTRATION WHICH HAD EARLIER BEEN
THE SUBJECT OF THE SERIES OF DECISIONS DEALT WITH IN THE TOUCEY CASE. 
IF CONFIRMATION OF THE COMPREHENSIVE SCOPE THUS REVEALED ON THE FACE OF
THE ENACTMENT WERE NECESSARY, IT IS TO BE FOUND IN THE REVISER'S NOTES,
WHICH STATE: 

"AN EXCEPTION AS TO ACTS OF CONGRESS RELATING TO BANKRUPTCY WAS
OMITTED AND THE GENERAL EXCEPTION SUBSTITUTED TO COVER ALL
EXCEPTIONS."  (FN1) 

IN THE FACE OF THIS CAREFULLY CONSIDERED ENACTMENT, WE CANNOT ACCEPT
THE ARGUMENT OF PETITIONER AND THE BOARD, AS AMICUS CURIAE, THAT SEC.
2283 DOES NOT APPLY WHENEVER THE MOVING PARTY IN THE DISTRICT COURT
ALLEGES THAT THE STATE COURT IS "WHOLLY WITHOUT JURISDICTION OVER THE
SUBJECT MATTER, HAVING INVADED A FIELD PREEMPTED BY CONGRESS."  NO SUCH
EXCEPTIONS HAD BEEN ESTALBISHED BY JUDICIAL DECISION UNDER FORMER SEC.
265.  (FN2)  IN ANY EVENT, CONGRESS HAS LEFT NO JUSTIFICATION FOR ITS
RECOGNITION NOW.  THIS IS NOT A STATUTE CONVEYING A BROAD GENERAL
POLICY FOR APPROPRIATE AD HOC APPLICATION.  LEGISLATIVE POLICY IS HERE
EXPRESSED IN A CLEAR-CUT PROHIBITION QUALIFIED ONLY BY SPECIFICALLY
DEFINED EXCEPTIONS. 

WE ARE FURTHER ADMONISHED AGAINST TAKING THE LIBERTY OF INTERPOLATION
WHEN CONGRESS CLEARLY LEFT NO ROOM FOR IT, BY THE INADMISSIBILITY OF
THE ASSUMPTION THAT ASCERTAINMENT OF PRE-EMPTION UNDER THE TAFT-HARTLEY
ACT IS SELF-DETERMINING OR EVEN EASY.  AS WE HAVE NOTED IN THE WEBER
CASE, "THE AREAS THAT HAVE BEEN PRE-EMPTED BY FEDERAL AUTHORITY AND
THEREBY WITHDRAWN FROM STATE POWER ARE NOT SUSCEPTIBLE OF DELIMITATION
BY FIXED METES AND BOUNDS."  348 U.S., AT 480.  WHAT IS WIHTIN
EXCLUSIVE FEDERAL AUTHORITY MAY FIRST HAVE TO BE DETERMINED BY THIS
COURT TO BE SO. 

2.  WE TURN, THEREFORE, TO THE SPECIFIC EXEMPTIONS CONTAINED IN SEC.
2283.  THE FIRST OF THESE PERMITS AN INJUNCTION TO ISSUE "AS EXPRESSLY
AUTHORIZED BY ACT OF CONGRESS."  IN THE PRESENT CASE WE ARE DIRECTED TO
NO "EXPRESS" AUTHORIZATION WITHIN EVEN THE MOST ATTENUATED MEANING OF
THE TERM.  OF COURSE NO PRESCRIBED FORMULA IS REQUIRED; AN
AUTHORIZATION NEED NOT EXPRESSLY REFER TO SEC. 2283.  BUT THE ONLY
"EXPRESS" AUTHORIZATION, IN THE FREEST USE OF THE WORD, TO BE FOUND IN
THE TAFT-HARTLEY ACT DOES NOT HELP PETITIONER.  CONGRESS HAS PROVIDED
AN ADMINISTRATIVE AGENCY TO PASS ON CLAIMS THAT RIGHTS GRANTED BY THE
ACT ARE DENIED OR THAT RESTRICTIONS IMPOSED BY THE ACT ARE
DISREGARDED.  ONLY AFTER THE BOARD HAS FOUND SUCH CLAIMS TO BE WELL
FOUNDED AND HAS FORMULATED REMEDIES FOR THEIR VINDICATION DOES THE
JURISDICTION FOR REVIEW BY THE COURT OF APPEALS COME INTO BEING. 
HOWEVER, INJUNCTIVE RELIEF OR A TEMPORARY RESTRAINING ORDER MAY BE
OBTAINED BY THE BOARD FROM THE APPROPRIATE DISTRICT COURT, PENDING
FINAL ADJUDICATION BY THE BOARD, "UPON ISSUANCE OF A COMPLAINT" BY THE
BOARD OR WHEN THERE IS "REASONABLE CAUSE TO BELIEVE" IN THE TRUTH OF A
CHARGE THAT A PARTY "HAS ENGAGED IN AN UNFAIR LABOR PRACTICE WITHIN THE
MEANING OF PARAGRAPH (4)(A), (B), OR (C) OF SECTION 8(B)."  CONGRESS
EXPLICITLY GAVE SUCH JURISDICTION TO THE DISTRICT COURTS ONLY ON BEHALF
OF THE BOARD ON A PETITION BY IT OR "THE OFFICER OR REGIONAL ATTORNEY
TO WHOM THE MATTER MAY BE REFERRED."  SEC. 10(J), (L), 61 STAT. 149, 29
U.S.C. SEC. 160(J), (L).  TO HOLD THAT THE TAFT-HARTLEY ACT ALSO
AUTHORIZES A PRIVATE LITIGANT TO SECURE INTERIM RELIEF WOULD BE TO
IGNORE THE CLOSELY CIRCUMSCRIBED JURISDICTION GIVEN TO THE DISTRICT
COURT AND TO GENERALIZE WHERE CONGRESS HAS CHOSEN TO SPECIFY.  TO FIND
EXCLUSIVE AUTHORITY FOR RELIEF VESTED IN THE BOARD AND NOT IN PRIVATE
PARTIES ACCORDS WITH OTHER ASPECTS OF THE ACT.  SEE AMALGAMATED UTILITY
WORKERS V. CONSOLIDATED EDISON CO., 309 U.S. 261.   SUCH WAS THE
AUTHORITY RECOGNIZED IN CAPITAL SERVICE, INC. V. LABOR BOARD, 347 U.S.
501. 

BUT THE ARGUMENT IS MADE THAT TO PERMIT THE STATE COURTS TO PROCEED
UNCHECKED IN THEIR INCURSION UPON A FEDERALLY PRE-EMPTED DOMAIN
DISLOCATES THE FEDERAL SCHEME AS A WHOLE.  THIS ARGUMENT IS ONLY A
REPHRASING OF THE SUGGESTION THAT WHENEVER CONGRESS IS FOUND TO HAVE
PRE-EMPTED A FIELD BY LEGISLATION SEC. 2283 MUST YIELD.  BUT ITS THRUST
IS DEEPER IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE.  IF TE
EMPLOYER'S USE OF THE JUDICIAL PROCESS OF THE STATE DOES NOT AMOUNT TO
AN UNFAIR LABOR PRACTICE, AND IF THE BOARD IS WITHOUT POWER TO SEEK AN
INJUNCTION BEFORE A COMPLAINT IS FILED WITH IT, THE FEDERAL MECHANISM
WILL NOT BE INVOKED AND FEDERALLY PROTECTED RIGHTS MAY BE DENIED UNTIL
THE INJUNCTION IS LIFTED.  THE EMPLOYER, WHO MIGHT HAVE BROUGHT A
CHARGE OF AN UNFAIR LABOR PRACTICE BEFORE THE BOARD, HAS CHOSEN TO
IGNORE HIS REMEDY UNDER THE TAFT-HARTLEY ACT.  THE TEMPORARY INJUNCTION
WHICH HAS BEEN ISSUED IS NOT, UNDER OHIO LAW, APPEALABLE, (FN3) AND THE
APPELLATE PROCEDURES WHICH WILL BE AVAILABLE IF A PERMANENT INJUNCTION
IS ISSUED ARE NECESSARILY TIME-CONSUMING.  THUS, SO THE ARGUMENT RUNS,
UNLESS THE FEDERAL COURT CAN INTERVENE, DELAY WILL NOT ONLY UNDERCUT
THE LEGISLATIVE SCHEME, BUT OPPORTUNITY FOR EFFECTIVE UNION ACTIVITY
MAY BE DIMINISHED IF NOT LOST. 

THE ASSUMPTION UPON WHICH THE ARGUMENT PROCEEDS IS THAT FEDERAL
RIGHTS WILL NOT BE ADEQUATELY PROTECTED IN THE STATE COURTS, AND THE
"GAP" COMPLAINED OF IS IMPATIENCE WITH THE APPELLATE PROCESS IF STATE
COURTS GO WRONG.  BUT DURING MORE THAN HALF OF OUR HISTORY CONGRESS, IN
ESTABLISHING THE JURISDICTION OF THE LOWER FEDERAL COURTS, IN THE MAIN
RELIED ON THE ADEQUACY OF THE STATE JUDICIAL SYSTEMS TO ENFORCE FEDERAL
RIGHTS, SUBJECT TO REVIEW BY THIS COURT.  WITH LIMITED EXCEPTIONS, IT
WAS NOT UNTIL 1875 THAT THE LOWER FEDERAL COURTS WERE GIVEN GENERAL
JURISDICTION OVER FEDERAL QUESTIONS.   (FN4)  DURING THAT ENTIRE
PERIOD, THE VINDICATION OF FEDERAL RIGHTS DEPENDED UPON THE PROCEDURE
WHICH PETITIONER ATTACKS AS SO GROSSLY INADEQUATE THAT IT COULD NOT
HAVE BEEN CONTEMPLATED BY CONGRESS.  THE PROHIBITION OF SEC. 2283 IS
BUT CONTINUING EVIDENCE OF CONFIDENCE IN THE STATE COURTS, REINFORCED
BY A DESIRE TO AVOID DIRECT CONFLICTS BETWEEN STATE AND FEDERAL
COURTS. 

WE CANNOT ASSUME THAT THIS CONFIDENCE HAS BEEN MISPLACED.  NEITHER
THE COURSE OF THIS CASE, NOR THE HISTORY OF STATE COURT ACTIONS SINCE
THE DECISION IN GARNER V. TEAMSTERS UNION, 346 U.S. 485, DEMONSTRATES
RECALCITRANCE ON THE PART OF STATE COURTS TO RECOGNIZE THE RATHER
SUBTLE LINE OF DEMARCATION BETWEEN EXCLUSIVE FEDERAL AND ALLOWABLE
STATE JURISDICTION OVER LABOR PROBLEMS.  IN ITS EFFORT TO DEFINE WHAT
HAS BEEN WITHDRAWN FROM THE STATES AND WHAT HAS BEEN LEFT THEM, THE
OPINION IN GARNER, DECIDED JUST LAST TERM, WAS HEDGED WITH
QUALIFICATIONS, EVEN IN A CASE WHICH DEALT ONLY WITH STATE COURT
ENFORCEMENT OF A STATE LABOR POLICY AS SUCH. 

MISAPPLICATION OF THIS COURT'S OPINIONS IS NOT CONFINED TO THE STATE
COURTS, NOR ARE DELAYS IN LITIGATION PECULIAR TO THEM.  TO PERMIT THE
FEDERAL COURTS TO INTERFERE, AS A MATTER OF JUDICIAL NOTIONS OF POLICY,
MAY ADD TO THE NUMBER OF COURTS WHICH PASS ON A CONTROVERSY BEFORE THE
RIGHTFUL FORUM FOR ITS SETTLEMENT IS ESTABLISHED.  A DISTRICT COURT'S
ASSERTION OF EQUITY POWER OR ITS DENIAL MAY IN TURN GIVE RISE TO
APPELLATE REVIEW ON THIS COLLATERAL ISSUE.  THERE MAY ALSO BE ADDED AN
ELEMENT OF FEDERAL-STATE COMPETITION AND CONFLICT WHICH MAY BE TRUSTED
TO BE EXPLOITED AND TO COMPLICATE, NOT SIMPLIFY, EXISTING
DIFFICULTIES. 

3.  THE EXCEPTION TO SEC. 2283 WHICH PERMITS THE DISTRICT COURT TO
ISSUE INJUNCTIONS "WHERE NECESSARY IN AID OF ITS JURISDICTION" REMAINS
TO BE CONSIDERED.  IN NO LAWYER-LIKE SENSE CAN THE PRESENT PROCEEDING
BE THOUGHT TO BE IN AID OF THE DISTRICT COURT'S JURISDICTION.  UNDER NO
CIRCUMSTANCES HAS THE DISTRICT COURT JURISDICTION TO ENFORCE RIGHTS AND
DUTIES WHICH CALL FOR RECOGNITION BY THE BOARD.  SUCH NONEXISTENT
JURISDICTION THEREFORE CANNOT BE AIDED.  (FN5)    INSOFAR AS PROTECTION
IS NEEDED FOR THE BOARD'S EXERCISE OF ITS JURISDICTION, CONGRESS HAS,
AS WE HAVE SEEN, SPECIFICALLY PROVIDED FOR RESORT, BUT ONLY BY THE
BOARD, TO THE DISTRICT COURT'S EQUITY POWERS.  SINCE THE VERY
PRESUPPOSITION OF THIS PROCEEDING IS THAT JURISDICTION OF THE SUBJECT
MATTER OF WHICH THE EMPLOYER COMPLAINED WAS IN THE BOARD AND NOT IN THE
STATE COURT, ANY AID THAT IS NEEDED TO PROTECT JURISDICTION IS THE AID
WHICH THE BOARD MAY NEED FOR THE SAFEGUARDING OF ITS AUTHORITY.  SUCH
AID ONLY THE BOARD COULD SEEK, AND ONLY IF, IN A CASE PENDING BEFORE
IT, IT HAS SATISFIED ITSELF AS TO THE ADEQUACY OF THE COMPLAINT. 

IT IS URGED THAT AN EMPLOYER MAY DELIBERATELY PREVENT BOARD ACTION BY
GOING INTO A STATE COURT.  FOR ONE THING, IT HAS NOT YET BEEN
DETERMINED THAT, IF AN EMPLOYER RESORTS TO A STATE COURT IN RELATION TO
CONDUCT THAT IS OBVIOUSLY TAKEN OVER BY THE TAFT-HARTLEY ACT AND
OUTSIDE THE BOUNDS OF STATE RELIEF, IT MAY NOT UNDER APPROPRIATE
CIRCUMSTANCES GIVE GROUND FOR A FINDING OF AN UNFAIR LABOR PRACTICE. 
(FN6)  IN ANY EVENT, IF RESORT TO A STATE COURT MAY NOT BE CIRCUMVENTED
BY THE POWER OF THE BOARD TO ENTERTAIN SUCH A COMPLAINT, WE ARE BOUND
TO REPEAT THAT, INSOFAR AS A PENUMBRAL REGION MUST REMAIN BETWEEN STATE
AND FEDERAL AUTHORITY TOUCHING INDUSTRIAL RELATIONS UNTIL FINALLY
CLARIFIED BY DEFINITIVE RULINGS HERE OR FURTHER LEGISLATION BY
CONGRESS, STATE LITIGATION MUST, IN VIEW OF SEC. 2283, BE ALLOWED TO
RUN ITS COURSE, INCLUDING THE ULTIMATE REVIEWING POWER IN THIS COURT. 
AFFIRMED. 

FN1  H.R. REP. NO. 308, 80TH CONG., 1ST SESS. A181.  PETITIONER AND
THE BOARD, AS AMICUS CURIAE, EMPHASIZE THE STATEMENT IN THE REVISER'S
NOTES THAT "THE REVISED SECTION RESTORES THE BASIC LAW AS GENERALLY
UNDERSTOOD AND INTERPRETED PRIOR TO THE TOUCEY DECISION."  EVEN IF
TAKEN TO MEAN THAT, DESPITE THE REVISED WORDING, THE SECTION IS TO
DERIVE ITS CONTENT FROM DECISIONS PRIOR TO 1948, THESE CONTAIN NO
PRECEDENT FOR THE PRESENT PROCEEDING.  SEE NOTE 2, INFRA.  MOREOVER, IN
CONTEXT IT IS CLEAR THAT THE QUOTED PHRASE REFERS ONLY TO THE
PARTICULAR PROBLEM WHICH WAS BEFORE THE COURT IN THE TOUCEY CASE. 

FN2  THE STATEMENT IN BOWLES V. WILLINGHAM, 321 U.S. 503, 511, THAT
"CONGRESS THUS PREEMPTED JURISDICTION IN FAVOR OF THE EMERGENCY COURT
TO THE EXCLUSION OF STATE COURTS.  THE RULE EXPRESSED IN SEC. 265 WHICH
IS DESIGNED TO AVOID COLLISIONS BETWEEN STATE AND FEDERAL AUTHORITIES
...  THUS DOES NOT COME INTO PLAY," MUST BE READ IN THE CONTEXT OF THE
SCHEME OF THE EMERGENCY PRICE CONTROL ACT OF 1942 (56 STAT. 23) AND
PARTICULARLY THE AUTHORITY IN THAT ACT FOR RESORT BY THE ADMINISTRATOR
OF THE OFFICE OF PRICE ADMINISTRATION TO INJUNCTIVE RELIEF UNDER THE
CIRCUMSTANCES THERE PRESENTED.  SEC. 205(A), 56 STAT. 33.  IT IS ALSO
TO BE NOTED THAT THIS OBSERVATION WAS MADE PRIOR TO THE REVISION OF
1948. 

FN3  A TEMPORARY INJUNCTION WHICH MERELY SERVES TO PRESERVE THE
STATUS QUO PENDING THE HEARING ON A REQUEST FOR A PERMANENT INJUNCTION
IS NOT A FINAL ORDER APPEALABLE UNDER SECS. 2505.02, 2505.03 OF PAGE'S
OHIO REV. CODE (1954).  MAY CO. V. BAILEY CO., 81 OHIO ST. 471, 91 N.E.
183; TIPLING V. RANDALL PARK HOLDING CO., 94 OHIO APP. 505, 114 N.E.2D
279. 

FN4  WITH THE EXCEPTION OF THE SHORT-LIVED "MIDNIGHT JUDGES" ACT OF
FEBRUARY 13, 1801, 2 STAT. 89 (REPEALED ON MARCH 8, 1802, 2 STAT. 132),
THE SO-CALLED FEDERAL SPECIALTIES, AND SPECIFIC AD HOC GRANTS OF
JURISDICTION, ENFORCEMENT OF FEDERAL RIGHTS WAS CONFINED TO THE STATE
COURTS PRIOR TO THE ACT OF MARCH 3, 1875, 18 STAT. 470.  SEE 13 CORNELL
L.Q. 499, 507-509. 

FN5  WE HAVE BEEN REFERRED BY PETITIONER TO DECISIONS IN THE LOWER
FEDERAL COURTS UNDER 28 U.S.C. SEC. 1651 AND ITS ANTECEDENTS HOLDING
THAT THE COURT OF APPEALS MAY RESORT TO WRIT OF MANDAMUS OR PROHIBITION
"IN AID OF ITS JURISDICTION" TO PREVENT A DISTRICT COURT FROM ACTING IN
A MANNER WHICH WOULD DEFEAT THE COURT OF APPEALS' POWER OF REVIEW. 
THESE DECISIONS MIGHT BE MORE RELEVANT HAD THE INJUNCTION BEEN SOUGHT
FROM THE COURT OF APPEALS.  ONLY THAT COURT HAS POWER TO REVIEW
DECISIONS OF THE BOARD.  IN ANY EVENT, IT HAS NEVER BEEN
AUTHORITATIVELY SUGGESTED THAT THIS EXAMPLE OF INJUNCTIVE AID TO A
POTENTIAL JURISDICTION, WHICH FINDS ROOTS IN TRADITIONAL CONCEPTS OF
THE RELATIONSHIP BETWEEN INFERIOR AND SUPERIOR COURTS OF THE SAME
JUDICIAL SYSTEM, HAS ANY RELEVANCE WHERE THE OFFENDING ACTION SOUGHT TO
BE ENJOINED IS INSULATED BY TWO INTERVENING AND ESSENTIALLY UNRELATED
SYSTEMS, ONE OF AN ADMINISTRATIVE RATHER THAN JUDICIAL NATURE, THE
OTHER THE MANIFESTATION OF A DISTINCT SOVEREIGN AUTHORITY. 

FN6  IN W.T. CARTER AND BROTHER, 90 N.L.R.B. 2020, THE BOARD HAS HELD
THAT AN EMPLOYER'S ACTION IN PROCURING A STATE COURT INJUNCTION
PROHIBITING FEDERALLY PROTECTED EMPLOYEE ACTIVITIES CONSTITUTES A
VIOLATION OF SEC. 8(A)(1) OF THE ACT WHICH DESIGNATES AS AN UNFAIR
LABOR PRACTICE AN EMPLOYER'S RESTRAINT OF EMPLOYEES IN THE EXERCISE OF
RIGHTS GUARANTEED UNDER SEC. 7.  THE BOARD NOW ARGUES THAT THIS CASE IS
LIMITED TO SITUATIONS IN WHICH THE EMPLOYER'S RESORT TO THE STATE COURT
IS PART OF A BAD FAITH SCHEME TO DEFEAT UNION ORGANIZATION AND THE
UNDERLYING UNION CONDUCT WHICH HAS BEEN ENJOINED IS PROTECTED UNDER THE
TAFT-HARTLEY ACT. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

THERE CAN BE NO DOUBT, APART FROM THE LIMITATIONS OF 28 U.S.C. SEC.
2283, (FN1) THAT THE DISTRICT COURT HAD JURISDICTION UNDER 28 U.S.C.
SEC. 1337 (FN2) TO ISSUE THE INJUNCTION SOUGHT BY THE UNION IN THIS
CASE.  THIS COURT SO HELD IN CAPITAL SERVICE V. LABOR BOARD, 347 U.S.
501.  IT IS TRUE THAT THE PLAINTIFF IN CAPITAL SERVICE WAS THE NATIONAL
LABOR RELATIONS BOARD, BUT SEC. 1337 IS GENERAL IN TERMS AND MAKES NO
DISTINCTION BETWEEN PUBLIC AND PRIVATE PLAINTIFFS. 

THUS, AS IN CAPITAL SERVICE, THE QUESTION IS WHETHER SEC. 2283, ON
THE FACTS OF THIS CASE, PRECLUDES THE EXERCISE OF JURISDICTION UNDER
SEC. 1337.  IN CAPITAL SERVICE, THE COURT STATED (347 U.S., AT 505, N.
2): 

"IN VIEW OF OUR RULING, WE FIND IT UNNECESSARY TO CONSIDER WHETHER,
APART FROM THE SPECIFIC EXCEPTIONS CONTAINED IN SEC. 2283, THE DISTRICT
COURT WAS JUSTIFIED IN ENJOINING THIS INTRUSION ON AN EXCLUSIVE FEDERAL
JURISDICTION.  CF. BOWLES V. WILLINGHAM, 321 U.S. 503, 510-511." 

THAT QUESTION IS NOW HERE. 

IN THE WILLINGHAM CASE, A LANDLORD HAD OBTAINED A STATE COURT
INJUNCTION RESTRAINING THE PRICE ADMINISTRATOR FROM ISSUING CERTAIN
RENT ORDERS UNDER THE EMERGENCY PRICE CONTROL ACT.  THE PRICE
ADMINISTRATOR BROUGHT AN ACTION IN A FEDERAL DISTRICT COURT TO ENJOIN
ENFORCEMENT OF THE STATE COURT INJUNCTION.  EXCLUSIVE JURISDICTION TO
DETERMINE THE VALIDITY OF RENT ORDERS, THE ADMINISTRATOR ARGUED, WAS
VESTED BY CONGRESS IN THE EMERGENCY COURT OF APPEALS.  THIS COURT
UPHELD THE ADMINISTRATOR'S POSITION.  AS ONE GROUND FOR ITS DECISION
THAT SEC. 265 OF THE JUDICIAL CODE (FN3) - THE PREDECESSOR OF SEC. 2283
- WAS NO BAR TO THE INJUNCTION SOUGHT BY THE ADMINISTRATOR, THE COURT
STATED (321 U.S., AT 511): 

"CONGRESS THUS PREEMPTED JURISDICTION IN FAVOR OF THE EMERGENCY COURT
TO THE EXCLUSION OF STATE COURTS.  THE RULE EXPRESSED IN SEC. 265 WHICH
IS DESIGNED TO AVOID COLLISIONS BETWEEN STATE AND FEDERAL AUTHORITIES
(TOUCEY V. NEW YORK LIFE INS. CO., SUPRA) THUS DOES NOT COME INTO
PLAY." 

THUS STOOD THE LAW IN 1948 WHEN SEC. 265 WAS SUCCEEDED BY THE PRESENT
SEC. 2283.  (FN4) 

CONTRARY TO THE SUGGESTION OF THE MAJORITY OPINION, SEC. 2283 IS NOT
BROADER IN SCOPE THAN ITS PREDECESSOR, SEC. 265.  INDEED, THE EXPRESS
PURPOSE OF SEC. 2283 WAS TO CONTRACT - NOT EXPAND - THE PROHIBITION OF
SEC. 265.  THE REVISERS STATED THAT "AN EXCEPTION AS TO ACTS OF
CONGRESS RELATING TO BANKRUPTCY WAS OMITTED AND THE GENERAL EXCEPTION
SUBSTITUTED TO COVER ALL EXCEPTIONS."  (FN5)  THE ONLY SUBSTANTIVE
CHANGE NOTED BY THE REVISERS WAS AN OVERRULING OF THIS COURT'S DECISION
IN TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118.  THE TOUCEY DECISION
HELD THAT SEC. 265 BARRED A FEDERAL COURT FROM ENJOINING A STATE COURT
IN PERSONAM PROCEEDING INVOLVING A CLAIM PREVIOUSLY ADJUDICATED BY THE
FEDERAL COURT.  THE REVISERS, EXPRESSLY APPROVING THE TOUCEY DISSENT,
STATED THAT "THE REVISED SECTION RESTORES THE BASIC LAW AS GENERALLY
UNDERSTOOD AND INTERPRETED PRIOR TO THE TOUCEY DECISION.  CHANGES WERE
MADE IN PHRASEOLOGY."  (FN6)  BY ENACTING SEC. 2283, CONGRESS THUS
REJECTED THE TOUCEY DECISION AND ITS PHILOSOPHY OF JUDICIAL
INFLEXIBILITY.  (FN7)  HOWEVER IMPRECISE MAY BE THE LANGUAGE OF SEC.
2283, ITS LEGISLATIVE HISTORY MAKES IT ABUNDANTLY CLEAR THAT THE
PROVISION WAS NOT INTENDED TO REPEAL PRE-EXISTING EXCEPTIONS TO SEC.
265. 

TO READ SEC. 2283 LITERALLY - AS THE MAJORITY OPINION DOES - IGNORES
NOT ONLY THIS LEGISLATIVE HISTORY BUT ALSO OVER A CENTURY OF JUDICIAL
HISTORY.  (FN8)  IN ADDITION, FOR THE REASONS POINTED OUT BY MR.
JUSTICE DOUGLAS IN HIS DISSENTING OPINION, SUCH A LITERAL
INTERPRETATION SERIOUSLY FRUSTRATES A COMPREHENSIVE REGULATORY SCHEME
ESTABLISHED BY CONGRESS FOR THE RESOLUTION OF THE KIND OF LABOR DISPUTE
INVOLVED HERE.  THE BOARD, ALTHOUGH CLEARLY HAVING EXCLUSIVE
JURISDICTION OF THE SUBJECT MATTER, CANNOT ADJUDICATE THE DISPUTE AS
LONG AS THE EMPLOYER DOES NOT FILE AN UNFAIR LABOR PRACTICE CHARGE; AND
THE EMPLOYER HAS NO INCENTIVE TO DO SO AS LONG AS THE STATE COURT
INJUNCTION IS OUTSTANDING.  I WOULD REVERSE. 

FN1  SECTION 2283 PROVIDES: 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS." 

FN2  SECTION 1337 PROVIDES: 

"THE DISTRICT COURT SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION OR PROCEEDING ARISING UNDER ANY ACT OF CONGRESS REGULATING
COMMERCE OR PROTECTING TRADE AND COMMERCE AGAINST RESTRAINTS AND
MONOPOLIES." 

FN3  SECTION 265 PROVIDED: 

"THE WRIT OF INJUNCTION SHALL NOT BE GRANTED BY ANY COURT OF THE
UNITED STATES TO STAY PROCEEDINGS IN ANY COURT OF A STATE, EXCEPT IN
CASES WHERE SUCH INJUNCTION MAY BE AUTHORIZED BY ANY LAW RELATING TO
PROCEEDINGS IN BANKRUPTCY."  36 STAT. 1162. 

FN4  SEE ALSO HALE V. BIMCO TRADING CO., 306 U.S. 375, 378; WELLS
FARGO & CO. V. TAYLOR, 254 U.S. 175, 183. 

FN5  H.R. REP. NO. 308, 80TH CONG., 1ST SESS., P. A181. 

FN6  ID., P. A182. 

FN7  SEE MOORE'S COMMENTARY ON THE U.S. JUDICIAL CODE (1949) 407,
410; NOTE, 48 NW.  U.L. REV. 383 (1953). 

FN8  SEE HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM
(1953), 1075-1076; MOORE'S COMMENTARY ON THE U.S. JUDICIAL CODE (1949)
395-407, 410. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

"A COURT OF THE UNITED STATES MAY NOT GRANT AN INJUNCTION TO STAY
PROCEEDINGS IN A STATE COURT EXCEPT AS EXPRESSLY AUTHORIZED BY ACT OF
CONGRESS, OR WHERE NECESSARY IN AID OF ITS JURISDICTION, OR TO PROTECT
OR EFFECTUATE ITS JUDGMENTS."  SO READS 28 U.S.C. SEC. 2283.  SO READ,
APART FROM EXCEPTIONS NOT RELEVANT HERE, FORMER SEC. 265 OF THE
JUDICIAL CODE. 

THE PURPOSE OF THE LAW, AS EXPLAINED IN OKLAHOMA PACKING CO. V. GAS
CO., 309 U.S. 4, 9, WAS "TO PREVENT NEEDLESS FRICTION BETWEEN STATE AND
FEDERAL COURTS."  IT IS, HOWEVER, CONSTRUED AND APPLIED TODAY IN A WAY
WHICH CAN ONLY DEFEAT A FEDERAL REGULATORY SCHEME.  FOR TODAY'S
DECISION ALLOWS STATE COURTS TO INTRUDE IN A DOMAIN WHERE THE FEDERAL
AGENCIES, I.E., THE NATIONAL LABOR RELATIONS BOARD AND THE DISTRICT
COURT, HAVE BEEN GRANTED PRIMARY AND EXCLUSIVE JURISDICTION, WITHOUT
LEAVING THE AGGRIEVED PARTY ANY EFFECTIVE RELIEF. 

THIS IS NOT A CASE WHERE THE STATE COURT HAS CONCURRENT JURISDICTION
WITH THE FEDERAL AGENCIES.  THE MATTER ON WHICH THE STATE COURT TAKES
HOLD HAS BEEN PRE-EMPTED BY THE CONGRESS AND PLACED AS FIRMLY AND
COMPLETELY IN THE FEDERAL DOMAIN AS IF CONGRESS BY EXPRESS WORDS HAD
FORBIDDEN STATE COURTS TO INTRUDE.  THE ADDITION OF AN EXPRESS
EXCEPTION TO SEC. 2283 WOULD NOT MAKE THE CONGRESSIONAL PURPOSE ANY
CLEARER. 

WHERE CONGRESS HAS MADE CLEAR THAT FEDERAL AGENCIES HAVE EXCLUSIVE
JURISDICTION OF A CONTROVERSY, THAT LEGISLATION SHOULD BE TAKEN TO
QUALIFY SEC. 2283 PRO TANTO.  THAT HAS BEEN THE VIEW UP TO THIS TIME. 
THE REMOVAL ACTS, STARTING WITH 1 STAT. 73, 79, ALLOWED CASES TO BE
REMOVED FROM STATE TO FEDERAL COURTS, AND PROVIDED THAT A CASE ONCE
REMOVED PASSED BEYOND THE JURISDICTION OF THE STATE COURTS.  THOSE ACTS
WERE CONSTRUED TO QUALIFY THE PREDECESSOR OF SEC. 2283.  DIETZSCH V.
HUIDEKOPER, 103 U.S. 494; MADISONVILLE TRACTION CO. V. MINING CO., 196
U.S. 239, 245.  THE SAME CONSTRUCTION WAS GIVEN AN ACT OF 1851 WHICH
LIMITED THE LIABILITY OF SHIPOWNERS AND PROVIDED THAT, AFTER A
SHIPOWNER TRANSFERS HIS INTERESTS IN THE VESSEL TO A TRUSTEE FOR THE
BENEFIT OF THE CLAIMANTS, "ALL CLAIMS AND PROCEEDINGS AGAINST THE OWNER
OR OWNERS SHALL CEASE."  9 STAT. 635, 636.  THE COURT HELD IN
PROVIDENCE & N.Y.S.S. CO. V. HILL MFG. CO., 109 ULS.  578, 600, THAT,
DESPITE THE PREDECESSOR TO SEC. 2283, THE LIMITED LIABILITY ACT OUSTED
THE STATE COURTS, SINCE OTHERWISE THE ACT WOULD BE THWARTED. 

THOSE CASES SHOWED NO CLEARER NEED FOR THE QUALIFICATION OF SEC. 2283
PRO TANTO THAN DOES THE TAFT-HARTLEY ACT. 

THE COURT HAS BEEN READY TO IMPLY OTHER EXCEPTIONS TO SEC. 2283,
WHERE THE COMMON SENSE OF THE SITUATION REQUIRED IT.  THUS, IF THE
FEDERAL COURT FIRST TAKES POSSESSION OF A RES, IT MAY PROTECT ITS
CONTROL OVER IT, EVEN TO THE EXTENT OF ENJOINING A STATE COURT FROM
INTERFERING WITH THE PROPERTY.  THAT RESULT FLIES IN THE FACE OF THE
LITERAL WORDS OF SEC. 2283.  YET THE INJUNCTION IS ALLOWED TO ISSUE AS
THE PREFERABLE WAY OF AVOIDING UNSEEMLY CLASHES BETWEEN STATE AND
FEDERAL AUTHORITIES.  SEE HAGAN V. LUCAS, 10 PET. 400, 403; KLINE V.
BURKE CONSTR.  CO., 260 U.S. 226, 229, 235.  ANOTHER ILLUSTRATION, AS
THE CHIEF JUSTICE POINTS OUT, IS BOWLES V. WILLINGHAM, 321 U.S. 503,
WHERE THE CASE FOR EXCLUSIVE JURISDICTION OF THE FEDERAL AUTHORITIES
WAS NO STRONGER THAN THE ONE NOW PRESENTED.    A LIKE EXCEPTION IS
NEEDED HERE, IF THE STATE SUIT IS NOT TO DISLOCATE SEVERELY THE FEDERAL
REGULATORY SCHEME.  UNDER THE PRESENT DECISION, AN EMPLOYER CAN MOVE IN
THE STATE COURTS FOR AN INJUNCTION AGAINST THE STRIKE.  THE INJUNCTION,
IF GRANTED, MAY FOR ALL PRACTICAL PURPOSES SETTLE THE MATTER.  THERE IS
NO WAY FOR THE UNION TO TRANSFER THE DISPUTE TO THE FEDERAL BOARD, FOR
IT SEEMS TO BE ASSUMED BY BOTH PARTIES THAT THE EMPLOYER HAS COMMITTED
NO UNFAIR LABOR PRACTICE.  BY TODAY'S DECISION THE FEDERAL COURT IS
POWERLESS TO ENJOIN THE STATE ACTION.  THE CASE LINGERS ON IN THE STATE
COURT.  THERE CAN BE NO APPEAL TO THIS COURT FROM THE TEMPORARY
INJUNCTION.  BUILDING UNION V. LEDBETTER CO., 344 U.S. 178.  IT MAY
TAKE SUBSTANTIAL TIME IN THE TRIAL COURT TO PREPARE A RECORD TO SUPPORT
A PERMANENT INJUNCTION.  ONCE ONE IS GRANTED, THE LONG, DRAWN-OUT
APPEAL THROUGH THE STATE HIERARCHY AND ON TO THIS COURT COMMENCES.  YET
BY THE TIME THIS COURT DECIDES THAT FROM THE VERY BEGINNING THE STATE
COURT HAD NO JURISDICTION, AS IT MUST UNDER THE PRINCIPLE OF GARNER V.
TEAMSTERS UNION, 346 U.S. 485, A YEAR OR MORE HAS PASSED; AND TIME
ALONE HAS PROBABLY DEFEATED THE CLAIM. 

THAT COURSE UNDERMINES THE FEDERAL REGULATION; IT EMASCULATES THE
FEDERAL REMEDY; IT ALLOWS ONE PARTY TO A LABOR-MANAGEMENT CONTROVERSY
TO CIRCUMVENT THE LAW WHICH CONGRESS ENACTED TO RESOLVE THESE
DISPUTES. 

THE FEDERAL REGULATORY SCHEME CRIES OUT FOR PROTECTION AGAINST THESE
TACTICS OF EVASION.  NO ONE IS IN A POSITION TO SEEK THE PROTECTION OF
THE FEDERAL COURT, EXCEPT THE FEDERAL BOARD OR A PARTY TO THE DISPUTE
WHO IS AGGRIEVED.  EITHER SHOULD BE ALLOWED STANDING UNDER THE
PRINCIPLE OF CAPITAL SERVICE, INC. V. LABOR BOARD, 347 U.S. 501, TO
INVOKE THE JURISDICTION OF THE FEDERAL COURT.  CERTAINLY A SUIT TO
PROTECT THE EXCLUSIVE JURISDICTION OF FEDERAL AGENCIES UNDER THE TAFT
HARTLEY ACT IS A SUIT "ARISING UNDER ANY ACT OF CONGRESS REGULATING
COMMERCE" WITHIN THE MEANING OF 28 U.S.C. SEC. 1337.  SEE CAPITAL
SERVICE, INC. V. LABOR BOARD, SUPRA, AT 504. 
..END :
























UNITED STATES V. MENASCHE 348 U.S. 528 


NO. 104.  ARGUED MARCH 1, 1955 - DECIDED APRIL 4, 1955 - 210 F.2D 809,
AFFIRMED. 


AN ALIEN WHO FILED HIS DECLARATION OF INTENTION TO BECOME AN AMERICAN
CITIZEN BEFORE THE EFFECTIVE DATE OF THE IMMIGRATION AND NATIONALITY
ACT OF 1952, AND WHO OTHERWISE COMPLIED WITH THE NATURALIZATION LAWS
THEN IN EFFECT, HAS A "STATUS," "CONDITION" OR "RIGHT IN PROCESS OF
ACQUISITION" PRESERVED BY SEC. 405(A), THE GENERAL SAVINGS CLAUSE OF
THE 1952 ACT, EVEN THOUGH HIS PETITION FOR NATURALIZATION WAS FILED
AFTER THE EFFECTIVE DATE OF THAT ACT.  PP. 529-539. 

(A)  WHEN SUBSECTION (A) OF THE SAVINGS CLAUSE WAS BROADENED IN THE
1952 ACT, CONGRESS MANIFESTED ITS INTENTION THAT THE ACT SHOULD TAKE
EFFECT PROSPECTIVELY WHERE THERE WAS NO SPECIFIC PROVISION TO THE
CONTRARY.  PP. 533-535. 

(B)  THE 1952 EXTENSION OF SUBSECTION (A) IS NOT LIMITED TO
SITUATIONS CONCERNING DERIVATIVE CITIZENSHIP.  P. 535. 

(C)  THE FACT THAT, UNDER THE 1952 ACT, DECLARATIONS OF INTENTION ARE
NO LONGER PREREQUISITE TO NATURALIZATION IS IMMATERIAL HERE, IN VIEW OF
THE PROVISION IN SEC. 405(A) PRESERVING THE "VALIDITY" OF DECLARATIONS
OF INTENTION "VALID AT THE TIME THIS ACT SHALL TAKE EFFECT."  PP. 535
536. 

(D)  IN THIS CASE, THE ALIEN'S INCHOATE RIGHT TO CITIZENSHIP IS
PROTECTED BY SEC. 405(A) AND IS NOT DEFEATED BY ANY IMPLICATION
STEMMING FROM SEC. 405(B).  PP. 536-539. 

(E)  SECTION 316(A) OF THE 1952 ACT, WHICH IMPOSES A MORE STRINGENT
REQUIREMENT AS TO RESIDENCE THAN DID THE PRIOR LAW, DID NOT "OTHERWISE
SPECIFICALLY PROVIDE" THAT THE 1952 ACT RATHER THAN THE PRIOR LAW WAS
TO APPLY TO THE SITUATION OF THE ALIEN IN THIS CASE.  P. 539. 

UNITED STATES V. MENASCHE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE AND SHOMBERG V. UNITED STATES, POST, P. 540, PRESENT
QUESTIONS CONCERNING THE PROPER INTERPRETATION OF THE GENERAL SAVINGS
CLAUSE OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 280, 8
U.S.C. SEC. 1101, NOTE.  THIS CLAUSE, SEC. 405 OF THE ACT, PROVIDES AS
FOLLOWS: 

"(A)  NOTHING CONTAINED IN THIS ACT, UNLESS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, SHALL BE CONSTRUED TO AFFECT THE VALIDITY OF ANY
DECLARATION OF INTENTION, PETITION FOR NATURALIZATION, CERTIFICATE OF
NATURALIZATION, CERTIFICATE OF CITIZENSHIP, WARRANT OF ARREST, ORDER OR
WARRANT OF DEPORTATION, ORDER OF EXCLUSION, OR OTHER DOCUMENT OR
PROCEEDING WHICH SHALL BE VALID AT THE TIME THIS ACT SHALL TAKE EFFECT;
OR TO AFFECT ANY PROSECUTION, SUIT, ACTION, OR PROCEEDINGS, CIVIL OR
CRIMINAL, BROUGHT, OR ANY STATUS, CONDITION, RIGHT IN PROCESS OF
ACQUISITION, ACT, THING, LIABILITY, OBLIGATION, OR MATTER, CIVIL OR
CRIMINAL, DONE OR EXISTING, AT THE TIME THIS ACT SHALL TAKE EFFECT; BUT
AS TO ALL SUCH PROSECUTIONS, SUITS, ACTIONS, PROCEEDINGS, STATUTES,
CONDITIONS, RIGHTS, ACTS, THINGS, LIABILITIES, OBLIGATIONS, OR MATTERS
THE STATUTES OR PARTS OF STATUTES REPEALED BY THIS ACT ARE, UNLESS
OTHERWISE SPECIFICALLY PROVIDED THEREIN, HEREBY CONTINUED IN FORCE AND
EFFECT  ...  . 

"(B)  EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN TITLE III, ANY
PETITION FOR NATURALIZATION HERETOFORE FILED WHICH MAY BE PENDING AT
THE TIME THIS ACT SHALL TAKE EFFECT SHALL BE HEARD AND DETERMINED IN
ACCORDANCE WITH THE REQUIREMENTS OF LAW IN EFFECT WHEN SUCH PETITION
WAS FILED." 

THE ISSUE HERE PRESENTED IS WHETHER AN ALIEN, WHO FILED HIS
DECLARATION OF INTENTION TO BECOME AN AMERICAN CITIZEN BEFORE THE
EFFECTIVE DATE OF THE 1952 ACT, AND WHO OTHERWISE COMPLIED WITH THE
NATURALIZATION LAWS THEN IN EFFECT, HAS A "STATUS," "CONDITION," OR
"RIGHT IN PROCESS OF ACQUISITION" PRESERVED BY SEC. 405(A), SUPRA,
DESPITE THE FACT THAT HIS PETITION FOR NATURALIZATION WAS FILED AFTER
THE EFFECTIVE DATE OF THE NEW ACT.  THE GOVERNMENT CONTENDS THAT
PETITIONS FOR NATURALIZATION ARE TO BE GOVERNED EXCLUSIVELY BY SEC.
405(B), AND THAT SINCE RESPONDENT DOES NOT COME WITHIN THE TERMS OF
THAT SUBSECTION - HIS PETITION NOT HAVING BEEN FILED BEFORE THE
EFFECTIVE DATE OF THE NEW ACT - THE SAVINGS CLAUSE IS INAPPLICABLE AND
THE SUBSTANTIVE PROVISIONS OF THE 1952 ACT APPLY. 

THE FACTS ARE NOT IN DISPUTE.  RESPONDENT WAS ADMITTED FOR PERMANENT
RESIDENCE IN THE UNITED STATES ON MARCH 7, 1948, AND THE FOLLOWING
MONTH HE FILED HIS DECLARATION OF INTENTION TO BECOME A CITIZEN. 
DURING THE NEXT FIVE YEARS, RESPONDENT WAS ABSENT FROM THE UNITED
STATES ON BUSINESS FOR SEVERAL PERIODS OF LESS THAN A YEAR EACH. 
ALTHOUGH THE AGGREGATE OF THESE ABSENCES WAS SOME FORTY-FOUR MONTHS, IT
IS CONCEDED THAT RESPONDENT HAD NOT AT ANY TIME ABANDONED HIS AMERICAN
RESIDENCE.  ACCORDINGLY, ALL OTHER PREREQUISITES TO CITIZENSHIP HAVING
BEEN SATISFIED, RESPONDENT WAS ENTITLED TO BE NATURALIZED UNDER THE
NATIONALITY ACT OF 1940 UPON COMPLETING FIVE YEARS OF RESIDENCE.  54
STAT. 1142, 8 U.S.C. (1946 ED.)  SEC.  707.  BUT BEFORE THIS PERIOD HAD
RUN, THE IMMIGRATION AND NATIONALITY ACT BECAME EFFECTIVE ON DECEMBER
24, 1952.  SECTION 316(A) OF THIS ACT, 66 STAT. 242, 8 U.S.C. SEC.
1427(A), IMPOSED A NEW REQUIREMENT OF PHYSICAL PRESENCE:  TO BE
ELIGIBLE FOR CITIZENSHIP, AN ALIEN MUST BE PHYSICALLY PRESENT IN THE
UNITED STATES FOR AT LEAST ONE-HALF THE PERIOD CONSTITUTING HIS FIVE
YEAR RESIDENCE.  WHEN, ON APRIL 24, 1953, MENASCHE FILED HIS PETITION
FOR NATURALIZATION, HE LACKED 14 MONTHS OF FULFILLING THIS NEW
REQUIREMENT.  THUS, IF THE 1952 ACT APPLIED TO RESPONDENT'S CASE, IT IS
CLEAR HE MAY NOT BE NATURALIZED, WHILE UNDER THE 1940 ACT HE IS
ADMITTEDLY ELIGIBLE FOR CITIZENSHIP. 

THE DISTRICT JUDGE ADMITTED MENASCHE TO CITIZENSHIP, HOLDING THAT THE
1940 ACT GOVERNS BECAUSE RESPONDENT ENJOYED A STATUS, CONDITION, AND
RIGHT IN PROCESS OF ACQUISITION PRESERVED BY SEC. 405(A) OF THE NEW
ACT.  115 F. SUPP. 434.  THE COURT OF APPEALS AFFIRMED.  210 F.2D 809. 
WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
PRESENTED IN THIS AND THE COMPANION CASE OF SHOMBERG V. UNITED STATES,
SUPRA, IN THE ADMINISTRATION OF OUR NATIONALITY LAWS.  348 U.S. 811. 

IN INTERPRETING SEC. 405 OF THE IMMIGRATION AND NATIONALITY ACT IN
RELATION TO THE FACTS OF THIS CASE, WE MUST CONSIDER THE HISTORICAL
BACKGROUND OF THE SAVINGS CLAUSE AND OF THE PROCEDURE FOR FILING
DECLARATIONS OF INTENTION.  THE DECLARATION OF INTENTION WAS INTRODUCED
INTO OUR LAW BY THE SECOND ACT OF CONGRESS ON THE SUBJECT OF
NATURALIZATION, 1 STAT. 414 (1795), AND REMAINED AN INTEGRAL PART OF
OUR NATURALIZATION PROCEDURE UNTIL THE ACT OF 1952 DISPENSED WITH IT AS
APREREQUISITE TO CITIZENSHIP.  66 STAT. 254, 8 U.S.C. SEC. 1445(F). 
FOR THE MORE THAN 150 YEARS BETWEEN THESE ENACTMENTS, CONGRESS
CONSIDERED IT APPROPRIATE TO REQUIRE ALIENS TO DECLARE THEIR INTENTION
TO BECOME UNITED STATES CITIZENS SEVERAL YEARS BEFORE THEY PETITIONED
FOR NATURALIZATION.  EXCEPTIONS WERE MADE FROM TIME TO TIME TO AVOID
HARDSHIP OR TO EXPEDITE THE NATURALIZATION OF A FAVORED GROUP, BUT
UNTIL THE 1952 ENACTMENT THE DECLARATION CONSTITUTED THE "FIRST PAPERS"
TOWARD AMERICAN CITIZENSHIP IN THE USUAL NATURALIZATION PROCEDURE.  SEE
JOINT HEARINGS BEFORE THE SUBCOMMITTEES OF THE COMMITTEES ON THE
JUDICIARY, 82D CONG., 1ST SESS., ON S. 716, H.R. 2379, AND H.R. 2816,
PP. 79-80, 723-725; S. REP. NO. 1515, 81ST CONG., 2D SESS., PP. 732
734. 

SAVINGS CLAUSES OF THE TYPE HERE INVOLVED - BROAD, INCLUSIVE
PROVISIONS - DATE BACK TO THE GENERAL STATUTES ON IMMIGRATION AND
NATURALIZATION ENACTED IN THE EARLY PART OF THIS CENTURY.  THE
NATURALIZATION ACT OF 1906, 34 STAT. 596, THE FIRST REAL CODIFICATION
OF OUR NATIONALITY LAWS, DID NOT CONTAIN A GENERAL SAVINGS CLAUSE, BUT
SOUGHT TO PROTECT CERTAIN PRIOR RIGHTS BY MEANS OF SPECIFIC
PROVISIONS.  34 STAT. 597, 599, 603.  NOR WAS THERE AN OVER-ALL SAVINGS
PROVISION IN THE FIRST OF THE GENERAL IMMIGRATION LAWS FOLLOWING THE
TURN OF THE CENTURY.  32 STAT. 1213 (1903).  THE GERM WAS THERE,
HOWEVER, IN A CLAUSE STATING THAT "NOTHING CONTAINED IN THIS ACT SHALL
BE CONSTRUED TO AFFECT ANY PROSECUTION OR OTHER PROCEEDING, CRIMINAL OR
CIVIL," BEGUN UNDER A PRIOR ACT.  32 STAT. 1220.  IN SUBSEQUENT
IMMIGRATION LAWS, THE PREDECESSORS OF THE INSTANT PROVISION COULD BE
MORE CLEARLY DISCERNED.  THE IMMIGRATION ACT OF 1907 PROVIDED THAT
NOTHING IN THE ACT "SHALL BE CONSTRUED TO AFFECT ANY PROSECUTION, SUIT,
ACTION, OR PROCEEDINGS BROUGHT, OR ANY ACT, THING, OR MATTER, CIVIL OR
CRIMINAL, DONE OR EXISTING AT THE TIME OF THE TAKING EFFECT OF THIS
ACT."  34 STAT. 907.  TO THE SAME EFFECT IS THE SAVINGS CLAUSE OF THE
IMMIGRATION ACT OF 1917.  39 STAT. 897.  IN THE YEARS THAT FOLLOWED,
AMENDMENTS TO THE IMMIGRATION AND NATURALIZATION LAWS WERE ENACTED WITH
MORE LIMITED SAVINGS CLAUSES, TAILORED TO THE SPECIAL CHANGES MADE BY
THE NEW LEGISLATION.  40 STAT. 545, 547, 548; 40 STAT. 559, AMENDED, 55
STAT. 252; 42 STAT.  1022; 43 STAT. 169; 46 STAT. 854.  (FN1)  THESE
PROVISIONS, THOUGH DIFFERING IN THEIR TERMS, MANIFESTED AN INTENTION ON
THE PART OF CONGRESS TO SAVE RIGHTS WHICH HAD ACCRUED UNDER PRIOR
LAWS. 

THE DIRECT ANTECEDENT OF THE SAVINGS CLAUSE HERE INVOLVED APPEARED AS
SEC. 347 OF THE NATIONALITY ACT OF 1940, 54 STAT. 1168, 8 U.S.C. (1946
ED.)  SEC.  747, THE LAST LEGISLATION PRIOR TO 1952 TO DEAL WITH OUR
GENERAL SYSTEM OF NATURALIZATION.  LIKE THE PRESENT SEC. 405, THE
PROVISION IN THE 1940 ACT WAS DIVIDED INTO TWO SUBSECTIONS.  THE FIRST
OF THESE, SUBSECTION (A), EXPANDED UPON THE MULTIPLICITY OF LEGAL
SUBJECTS PRESERVED BY THE 1907 AND 1917 IMMIGRATION LAWS.  (FN2)
SUBSECTION (B), ON THE OTHER HAND, INTRODUCED AN ENTIRELY NEW WRINKLE
BY PROVIDING THAT PENDING NATURALIZATION PETITIONS "SHALL BE HEARD AND
DETERMINED WITHIN TWO YEARS THEREAFTER IN ACCORDANCE WITH THE
REQUIREMENTS OF LAW IN EFFECT WHEN SUCH PETITION WAS FILED."  (FN3)
THE LITIGATION UNDER THIS SECTION, INVOLVING, FIRST, THE SCOPE OF
SUBSECTION (A) AND, SECONDLY, THE RELATION BETWEEN THE TWO SUBSECTIONS,
THROWS CONSIDERABLE LIGHT ON THE PARALLEL PROBLEMS UNDER SEC. 405
PRESENTED IN THE INSTANT CASE. 

THE 1952 ACT MADE THE ENUMERATION OF MATTERS PRESERVED BY SUBSECTION
(A) MORE COMPLETE AND ALL-INCLUSIVE BY ADDING:  "STATUS," "CONDITION,"
"RIGHT IN PROCESS OF ACQUISITION," "LIABILITY," AND "OBLIGATION."  THE
CHANGE WAS UNDOUBTEDLY PROMPTED BY SEVERAL SETS OF INCONSISTENT
DECISIONS DEALING WITH THE VAGUE TERMINOLOGY IN SEC. 347(A) OF THE 1940
ACT PRESERVING "ANY ACT, THING, OR MATTER, CIVIL OR CRIMINAL."  THE
FIRST OF THESE CONCERNED THE QUESTION WHETHER THE WITHDRAWAL OF A
DECLARATION OF INTENTION TO AVOID SERVICE IN THE ARMED FORCES
CONSTITUTED AN "ACT" EXISTING UNDER THE PRIOR LAW WHICH CONTINUED TO
DEBAR THE ALIEN FROM CITIZENSHIP.  COMPARE PETITION OF OTNESS, 49 F.
SUPP. 220, WITH IN RE URMENETA, 42 F. SUPP. 138, AND IN RE SAMOWICH, 70
F. SUPP. 273.  A SECOND AND MORE SIGNIFICANT CONFLICT CONCERNED
INCHOATE RIGHTS TO DERIVATIVE CITIZENSHIP, WHICH, WHEN PROPER
CONDITIONS WERE MET, REQUIRED ONLY THE PASSAGE OF TIME TO RIPEN INTO
FULL CITIZENSHIP.  WHEN THE 1940 ACT CHANGED CERTAIN OF THE CONDITIONS
IN THIS PROCESS, THE QUESTION AROSE WHETHER THOSE WHOSE TIME HAD BEGUN
TO RUN BEFORE THE 1940 ACT TOOK EFFECT WERE TO BE GOVERNED BY THE OLD
LAW OR THE NEW.  THE SECOND CIRCUIT HELD THAT THE NEW LAW APPLIED,
BECAUSE SEC. 347(A) OF THE 1940 ACT DID NOT EXTEND TO "A MERE
CONDITION, UNATTENDED BY ANY AFFIRMATIVE ACTION."  UNITED STATES EX
REL. ABERASTURI V. CAIN, 147 F.2D 449, 452.  THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA DISAGREED, CONSTRUING THE BROAD LANGUAGE OF
SEC. 347(A) AS COVERING "RIGHTS PARTLY ACCRUED" AND "RIGHTS IN PROCESS
OF ACQUISITION."  BERTOLDI V. MCGRATH, 86 U.S. APP. D.C. 1, 2, 3, 178
F.2D 977, 978, 979.  THIS LATTER CONFLICT MUST HAVE BEEN PARAMOUNT IN
THE MINDS OF CONGRESS WHEN THE FIRST SUBSECTION OF THE SAVINGS CLAUSE
WAS BROADENED.  SEE ANALYSIS OF S. 3455, 81ST CONG., 2D SESS., PP. 361
1 AND 361-2 (PREPARED BY THE IMMIGRATION AND NATURALIZATION SERVICE FOR
THE COMMITTEES OF CONGRESS CONSIDERING THIS LEGISLATION).  WE CONCLUDE
THAT CONGRESS INTENDED TO ADOPT THE PRINCIPLE OF THE BERTOLDI CASE THAT
"THE NEW ACT SHOULD TAKE EFFECT PROSPECTIVELY."  86 U.S. APP. D.C., AT
2, 178 F.2D, AT 978.  THIS IS, AFTER ALL, NO MORE THAN A REAFFIRMATION
OF THE PRINCIPLE UNDERLYING THE LESS SWEEPING 1940 PROVISION.  IN A
REPORT TO THE CONGRESSIONAL COMMITTEES CONSIDERING THIS EARLIER
BY WHICH THE STATUS QUO IS MAINTAINED IN RELATION TO NATURALIZATION
PROCEEDINGS AND OTHER RELATED MATTERS."  REPORT OF THE JOINT
DEPARTMENTAL COMMITTEE, REPRODUCED IN HEARINGS BEFORE HOUSE COMMITTEE
ON IMMIGRATION AND NATURALIZATION, 76TH CONG., 1ST SESS., ON H.R. 6127,
SUPERSEDED BY H.R. 9980, 411, 484. 

THE GOVERNMENT WOULD HAVE US LIMIT THE 1952 EXTENSION OF SUBSECTION
(A) TO SITUATIONS CONCERNING DERIVATIVE CITIZENSHIP, ARGUING THAT THIS
PROBLEM WAS ENTIRELY RESPONSIBLE FOR THE NEW LANGUAGE ON STATUS,
CONDITION, AND RIGHT IN PROCESS OF ACQUISITION.  WITH THIS WE CANNOT
AGREE.  THE CHANGE IN THE SECTION WAS DESIGNED TO EXTEND A SAVINGS
CLAUSE ALREADY BROADLY DRAWN, AND EMBODIES, WE BELIEVE, CONGRESSIONAL
ACCEPTANCE OF THE PRINCIPLE THAT THE STATUTORY STATUS QUO WAS TO
CONTINUE EVEN AS TO RIGHTS NOT FULLY MATURED.  IT SHOULD BE NOTED,
FURTHER, THAT THE CONFLICT BETWEEN ABERASTURI AND BERTOLDI INVOLVED A
SITUATION WHERE THE ALIEN HAD FAILED TO TAKE ANY AFFIRMATIVE ACTION TO
ASSERT HIS CLAIM TO CITIZENSHIP.  EVEN THE MORE RESTRICTIVE ABERASTURI
OPINION RECOGNIZED THAT AFFIRMATIVE ACTION BY THE ALIEN MIGHT ALTER THE
RESULT THERE REACHED.  147 F.2D, AT 452.  IF CONGRESS WAS WILLING TO
PRESERVE A "MERE CONDITION, UNATTENDED BY ANY AFFIRMATIVE ACTION," WE
THINK ITS SAVINGS CLAUSE ALSO REACHES INSTANCES, SUCH AS THIS, WHERE
AFFIRMATIVE ACTION IS PRESENT.  THE WHOLE DEVELOPMENT OF THIS GENERAL
SAVINGS CLAUSE, ITS PREDECESSORS ACCOMPANYING EACH OF THE RECENT
CODIFICATIONS IN THE FIELD OF IMMIGRATION AND NATURALIZATION, MANIFESTS
A WELL-ESTABLISHED CONGRESSIONAL POLICY NOT TO STRIP ALIENS OF
ADVANTAGES GAINED UNDER PRIOR LAWS.  THE CONSISTENT BROADENING OF THE
SAVINGS PROVISION, PARTICULARLY IN ITS GENERAL TERMINOLOGY, INDICATES
THAT THIS POLICY OF PRESERVATION WAS INTENDED TO APPLY TO MATTERS BOTH
WITHIN AND WITHOUT THE SPECIFIC CONTEMPLATION OF CONGRESS. 

THE GOVERNMENT ARGUES AGAINST HINGING STATUSES, CONDITIONS AND RIGHTS
IN PROCESS OF ACQUISITION ON THE FILING OF A DECLARATION OF INTENTION,
BECAUSE, IT CONTENDS, THE 1952 ACT HAS RENDERED SUCH DECLARATIONS
TOTALLY MEANINGLESS AS FAR AS NATURALIZATION PROCEEDINGS ARE
CONCERNED.  THEY ARE NO LONGER A PREREQUISITE TO NATURALIZATION AND
THEY CONFER NO SPECIAL ADVANTAGE ON THE ALIEN-DECLARANT.   (FN4)  BUT
ALL THIS IS IMMATERIAL.  FIRST, THE CONGRESSIONAL RESOLUTION OF THE
BERTOLDI-ABERASTURI CONFLICT INDICATES A WILLINGNESS, AT LEAST IN SOME
SITUATIONS, TO PRESERVE RIGHTS IN PROCESS OF ACQUISITION WITHOUT
REQUIRING AFFIRMATIVE ACTION ON THE PART OF THE ALIEN.  IT COULD BE
ARGUED IN THE PRESENT CASE THAT IT WAS MENASCHE'S RESIDENCE, RATHER
THAN HIS FILING OF THE DECLARATION, WHICH GAVE RISE TO HIS RIGHTS UNDER
SEC. 405(A).  AND THIS APPROACH WOULD HAVE THE VIRTUE OF ELIMINATING
THE INEQUITABLE TREATMENT ENVISAGED BY THE GOVERNMENT AS REGARDS THOSE
SPECIAL GROUPS OF ALIENS WHO DID NOT HAVE TO FILE DECLARATIONS AS A
PREREQUISITE TO CITIZENSHIP.  BUT WHILE OUR DECISION COULD BE RESTED ON
THIS GROUND, IT IS SUFFICIENT HERE MERELY TO REFER TO THE PROVISION IN
SEC. 405(A), DERIVED VERBATIM FROM SEC. 347(A) OF THE 1940 ACT,
PRESERVING THE "VALIDITY" OF DECLARATIONS OF INTENTION "VALID AT THE
TIME THIS ACT SHALL TAKE EFFECT." 

THE GOVERNMENT CONTENDS, HOWEVER, THAT EVEN IF SEC. 405(A),
CONSIDERED ALONE, COVERS THIS CASE, SEC. 405(B) DEALS SPECIFICALLY WITH
NATURALIZATION PETITIONS AND BY NECESSARY IMPLICATION EXCLUDES THEIR
COVERAGE IN SEC. 405(A).  AS WE READ THE STATUTE, SUBSECTION (B) MERELY
IMPLEMENTS AND EMPHASIZES THE OPERATION OF ITS FORERUNNER.  IT IS
CLEAR, FIRST, THAT SUBSECTION (B) IS NOT A SPECIFIC EXCEPTION OF SEC.
405(A), SINCE BOTH SUBSECTIONS STATE THAT PRIOR LAW SHOULD APPLY IN
CERTAIN CIRCUMSTANCES.  THE SLIGHT NEGATIVE IMPLICATION DERIVED FROM
THE FACT THAT SEC. 405(B) APPLIES TO PENDING PETITIONS FOR
NATURALIZATION, AND NOT TO THOSE FILED AFTER THE EFFECTIVE DATE OF THE
NEW ACT, IS OVERCOME BY THE BROAD SWEEP OF SEC. 405(A) AND ITS
DIRECTION THAT PRIOR LAW APPLIES UNLESS THE ACT "OTHERWISE SPECIFICALLY
PROVIDES."  (FN5) 

THIS VIEW IS STRENGTHENED BY THE RELATION BETWEEN THE PREDECESSORS OF
SEC. 405(A) AND (B).  THE REPORT OF THE JOINT DEPARTMENTAL COMMITTEE,
SUPRA, AT 484, STATED THAT UNDER SEC. 347(B) OF THE 1940 ACT "A PERIOD
OF 2 YEARS WOULD BE GRANTED DURING WHICH ANY PETITION FOR
NATURALIZATION FILED PRIOR TO THE ENACTMENT OF THE NEW MEASURE MIGHT BE
HEARD UNDER THE LAW IN EFFECT WHEN THE PROCEEDING WAS BEGUN."  THE
APPROACH OF THE COURTS, IN DEALING WITH PENDING NATURALIZATION
PETITIONS ALLEGED TO BE GOVERNED BY THE 1940 SAVINGS CLAUSE, WAS
GENERALLY TO SEE WHETHER PETITIONER'S RIGHTS WERE SAVED BY SEC. 347(A),
AND THEN, IF APPLICABLE, APPLY THE TWO-YEAR LIMITATION OF SEC. 347(B). 
SEE IN RE SHAVER, 140 F.2D 180; PETITION OF LA BELLA, 52 F. SUPP. 980;
PETITION OF HIRSCH, 50 F. SUPP. 638; IN RE MCINNIS, 50 F. SUPP. 303. 
BUT CF. PETITION OF FERRARA, 43 N.Y.S.2D 244.  THUS SEC. 347(A) WAS
CONSIDERED THE SOURCE OF RIGHTS UNDER THE SAVINGS CLAUSE, AND SEC.
347(B) MERELY A SPECIAL LIMITATION ON THESE RIGHTS.  INDEED, THERE WERE
TWO CASES IN WHICH PETITIONS FOR NATURALIZATION FILED AFTER THE
EFFECTIVE DATE OF THE 1940 ACT WERE CONSIDERED SOLELY IN RELATION TO
SEC. 347(A).  IN RE SAMOWICH, 70 F. SUPP. 273; PETITION OF ROTHSCHILD,
57 F. SUPP. 814.  THESE DECISIONS IGNORED THE SUPPOSEDLY OBVIOUS
NEGATIVE IMPLICATIONS OF SEC. 347(B), AND CAST CONSIDERABLE DOUBT ON
THE GOVERNMENT'S PRESENT VIEW THAT SEC. 347(B) AUTOMATICALLY REMOVED
FROM THE COVERAGE OF PRIOR LAW PETITIONS FILED AFTER THE EFFECTIVE DATE
OF THE 1940 ACT.  THUS THE CONSTRUCTION ADVANCED BY THE GOVERNMENT
CONCERNING THE RELATION BETWEEN SEC. 405(A) AND SEC. 405(B) WOULD NOT
CONTINUE THE RELATION BETWEEN THE PREDECESSOR PROVISIONS, BUT WOULD
ACTUALLY BE A MARKED DEPARTURE.  THE ONLY SIGNIFICANT CHANGE MADE IN
SUBSECTION (B) BY THE 1952 ACT WAS THE DELETION OF THE TWO-YEAR TIME
LIMIT, AND THERE IS NOTHING TO INDICATE THAT CONGRESS, IN MAKING THIS
CHANGE, INTENDED TO ALTER THE ENTIRE STRUCTURE OF THE SAVINGS CLAUSE BY
MAKING SEC. 405(B) THE EXCLUSIVE PROVISION FOR NATURALIZATION
PETITIONS.  SEE ANALYSIS OF S. 3455, SUPRA.  THE FEW DECISIONS
CONSIDERING THIS PROBLEM UNDER THE 1952 ACT ACCORD WITH THE DECISIONS
OF THE DISTRICT COURT AND COURT OF APPEALS IN THE INSTANT CASE, HOLDING
THAT SEC. 405(A) PRESERVES RIGHTS ACCRUING IN THE PRE-PETITION STAGES
OF THE NATURALIZATION PROCESS.  UNITED STATES V. PRINGLE, 212 F.2D 878,
AFFIRMING 122 F. SUPP. 90; IN RE JOCSON, 117 F. SUPP. 528.  WE BELIEVE
THAT CONGRESS SO INTENDED. 

THE GOVERNMENT'S CONTENTION THAT SEC. 405(A) DOES NOT APPLY TO ANY
PHASE IN THE PROCESSING OF NATURALIZATION PETITIONS WOULD DEFEAT AND
DESTROY THE PLAIN MEANING OF THAT SECTION.  "THE CARDINAL PRINCIPLE OF
STATUTORY CONSTRUCTION IS TO SAVE AND NOT TO DESTROY."  LABOR BOARD V.
JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 30.  IT IS OUR DUTY "TO GIVE
EFFECT, IF POSSIBLE, TO EVERY CLAUSE AND WORD OF A STATUTE," MONTCLAIR
V. RAMSDELL, 107 U.S. 147, 152, RATHER THAN TO EMASCULATE AN ENTIRE
HOLD THAT RESPONDENT'S INCHOATE RIGHT TO CITIZENSHIP IS PROTECTED BY
SEC. 405(A) AND IS NOT DEFEATED BY ANY IMPLICATION STEMMING FROM SEC.
405(B).  ALL THAT REMAINS, THEREFORE, IS TO LOOK TO SEC. 316(A), WHICH
IMPOSES THE NEW REQUIREMENT OF PHYSICAL PRESENCE, TO DETERMINE WHETHER
IT "OTHERWISE SPECIFICALLY PROVIDES" THAT THE NEW ACT IS TO APPLY TO
RESPONDENT'S SITUATION.  IT IS CLEAR THAT IT DOES NOT.  SECTION 316(A)
MERELY SAYS THAT, "EXCEPT AS OTHERWISE PROVIDED," THE STATED DEGREE OF
PHYSICAL PRESENCE SHALL BE REQUIRED, AND THIS MAY BE VIEWED AS A
REFERENCE, INTER ALIA, TO SEC. 405(A), STRENGTHENING OUR CONCLUSION
THAT PRIOR LAW APPLIES. 

THE DISTRICT COURT AND THE COURT OF APPEALS WERE CORRECT IN
CONCLUDING THAT SEC. 405(A) PRESERVED RESPONDENT'S INCHOATE RIGHTS
UNDER THE PRIOR LAW, AND THEIR DECISIONS ARE ACCORDINGLY AFFIRMED. 

FN1  SEE ALSO 54 STAT. 1150, 8 U.S.C. (1946 ED.)  SEC.  726; 64 STAT.
1015, 8 U.S.C.  (1946 ED., SUPP. V) SEC. 725(B). 

FN2  "SEC.  347.  (A)  NOTHING CONTAINED IN EITHER CHAPTER III OR IN
CHAPTER V OF THIS ACT, UNLESS OTHERWISE PROVIDED THEREIN, SHALL BE
CONSTRUED TO AFFECT THE VALIDITY OF ANY DECLARATION OF INTENTION,
PETITION FOR NATURALIZATION, CERTIFICATE OF NATURALIZATION OR OF
CITIZENSHIP, OR OTHER DOCUMENT OR PROCEEDING WHICH SHALL BE VALID AT
THE TIME THIS ACT SHALL TAKE EFFECT; OR TO AFFECT ANY PROSECUTION,
SUIT, ACTION, OR PROCEEDINGS, CIVIL OR CRIMINAL, BROUGHT, OR ANY ACT,
THING, OR MATTER, CIVIL OR CRIMINAL, DONE OR EXISTING, AT THE TIME THIS
ACT SHALL TAKE EFFECT; BUT AS TO ALL SUCH PROSECUTIONS, SUITS, ACTIONS,
PROCEEDINGS, ACTS, THINGS, OR MATTERS, THE STATUTES OR PARTS OF
STATUTES REPEALED BY THIS ACT, ARE HEREBY CONTINUED IN FORCE AND
EFFECT." 

FN3  "(B)  ANY PETITION FOR NATURALIZATION HERETOFORE FILED WHICH MAY
BE PENDING AT THE TIME THIS ACT SHALL TAKE EFFECT SHALL BE HEARD AND
DETERMINED WITHIN TWO YEARS THEREAFTER IN ACCORDANCE WITH THE
REQUIREMENTS OF LAW IN EFFECT WHEN SUCH PETITION WAS FILED." 

FN4  THE ALIEN MAY, IF HE WISHES, FILE A DECLARATION OF INTENTION
WITH THE IMMIGRATION AND NATURALIZATION SERVICE.  66 STAT. 254, 8
U.S.C. SEC. 1445(F).  THE APPARENT OBJECT OF THIS OPTIONAL PROVISION IS
TO PRESERVE THE RIGHTS OF ALIENS UNDER STATE LAWS, WHERE, FOR EXAMPLE,
THERE MAY BE A REQUIREMENT THAT A LEGALLY RESIDENT ALIEN SHALL HAVE
FILED HIS DECLARATION OF INTENTION BEFORE HE CAN OBTAIN WORK.  SEE
JOINT HEARINGS ON S. 716, H.R. 2379 AND H.R. 2816, SUPRA, P. 80; S.
REP. NO. 1515, SUPRA, P. 738. 

FN5  IT IS POSSIBLE, ALTHOUGH WE DO NOT PASS ON THE POINT IN THIS
OPINION, THAT SEC.  405(B) SERVES A FUNCTION WHICH CARRIES WITH IT A
NEGATIVE IMPLICATION DIFFERENT FROM THAT ADVANCED BY THE GOVERNMENT. 
BE GOVERNED BY THE "LAW IN EFFECT WHEN SUCH PETITION WAS FILED." 
SHALL "AFFECT" ANY OF THE ENUMERATED SUBJECTS, PRESERVING THE LAW AS IT
EXISTED IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THE ACT.  THUS SEC.
405(B) MAY "OTHERWISE SPECIFICALLY PROVIDE" FOR A LAW APPLICABLE TO
PENDING PETITIONS DIFFERENT FROM THE LAW PRESERVED BY SEC. 405(A) FOR
OTHER PROTECTED INTERESTS.  WE HAVE NOT FULLY CONSIDERED, IN PASSING ON
THE QUESTION BEFORE US, THE CONSONANCE OF SUCH AN INTERPRETATION WITH
THE OVER-ALL STATUTORY SCHEME, BUT ADVANCE IT MERELY AS ANOTHER
ILLUSTRATION OF THE MEANING WHICH CAN BE GIVEN SEC. 405(B) TO AVOID
BOTH THE RESULT PRESSED BY THE GOVERNMENT IN THIS CASE AND THE
OBJECTION THAT SEC. 405(B) IS RENDERED REDUNDANT BY HOLDING THAT
PETITIONER HAS RIGHTS PROTECTED BY SEC. 405(A). 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















SHOMBERG V. UNITED STATES 348 U.S. 540 


NO. 48.  ARGUED MARCH 1, 1955 - DECIDED APRIL 4, 1955 - 210 F.2D 82,
AFFIRMED. 


AN ALIEN WHO FILED HIS PETITION FOR NATURALIZATION TWO DAYS BEFORE THE
EFFECTIVE DATE OF THE IMMIGRATION AND NATIONALITY ACT OF 1952 CANNOT
COMPEL A FINAL HEARING ON SUCH PETITION BEFORE THE DETERMINATION OF
DEPORTATION PROCEEDINGS INSTITUTED AGAINST HIM AFTER THE EFFECTIVE DATE
OF THE ACT AND BASED SOLELY ON GROUNDS INITIATED BY THAT ACT.  PP. 541
548. 

(A)  THE "PRIORITY PROVISION" OF SEC. 318 OF THE 1952 ACT, THAT "NO
PETITION FOR NATURALIZATION SHALL BE FINALLY HEARD  ...  IF THERE IS
PENDING AGAINST THE PETITIONER A DEPORTATION PROCEEDING," SPECIFICALLY
EXCEPTS RIGHTS UNDER THE PRIOR LAW FROM THE PROTECTION OF THE SAVINGS
CLAUSE OF SEC. 405 WHEN THESE RIGHTS STEM FROM A PETITION FOR
NATURALIZATION OR FROM SOME OTHER STEP IN THE NATURALIZATION PROCESS. 
PP. 542-545. 

(B)  CONGRESS DID NOT INTEND SEC. 318 TO APPLY ONLY TO DEPORTATION
PROCEEDINGS BASED ON GROUNDS EXISTING UNDER THE PRIOR LAW.  P. 546. 

(C)  THE CONTENTION THAT A CHANGE IN THE PUNCTUATION OF SEC. 318
RESULTED IN THE APPLICATION OF THE "NOTWITHSTANDING" CLAUSE TO FINAL
FINDINGS OF DEPORTABILITY BUT NOT TO PENDING PROCEEDINGS IS REJECTED. 
P. 546, N. 4. 

(D)  THE "NOTWITHSTANDING" LANGUAGE IN SEC. 318 CLEARLY MANIFESTED
THE INTENT OF CONGRESS THAT CERTAIN POLICIES SHOULD OVERRIDE THE
OTHERWISE BROAD AND PERVASIVE PRINCIPLE OF THE SAVINGS CLAUSE OF SEC.
405.  PP. 546-548. 

SHOMBERG V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE PRECISE ISSUE IN THIS PROCEEDING IS WHETHER PETITIONER, WHO FILED
HIS PETITION FOR NATURALIZATION TWO DAYS BEFORE THE EFFECTIVE DATE OF
THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163, 8 U.S.C.
SEC. 1101 ET SEQ., MAY COMPEL A FINAL HEARING ON THE SAME BEFORE THE
DETERMINATION OF DEPORTATION PROCEEDINGS INSTITUTED AFTER THE EFFECTIVE
DATE OF THE ACT AND BASED SOLELY ON GROUNDS INITIATED BY THAT ACT.  THE
"PRIORITY PROVISION" OF THE ACT, SEC. 318, STATES "NO PETITION FOR
NATURALIZATION SHALL BE FINALLY HEARD ...  IF THERE IS PENDING AGAINST
THE PETITIONER A DEPORTATION PROCEEDING."  66 STAT.  244, 8 U.S.C. SEC.
1429.  (FN1)  BUT PETITIONER CLAIMS THAT THE SAVINGS CLAUSE OF THE ACT,
SEC. 405, 66 STAT. 280, 8 U.S.C. SEC. 1101, NOTE, WHICH WE CONSIDERED
IN UNITED STATES V. MENASCHE, ANTE, P. 528, PRESERVES HIS ELIGIBILITY
FOR CITIZENSHIP UNDER PRIOR LAW, AND THAT FINAL HEARING THEREON CANNOT
BE DELAYED BY REASON OF THE PENDENCY OF THE SUBSEQUENTLY INSTITUTED
DEPORTATION ACTION.  BOTH THE TRIAL COURT, 115 F. SUPP. 336, AND THE
COURT OF APPEALS, 210 F.2D 82, DECIDED AGAINST THE PETITIONER.  WE
GRANTED CERTIORARI, 348 U.S. 811, IN ORDER TO DETERMINE THE
RELATIONSHIP BETWEEN SEC. 318 AND SEC. 405 OF THE 1952 ACT. 

ON OCTOBER 1, 1952, PETITIONER SUBMITTED TO THE IMMIGRATION AND
NATURALIZATION SERVICE A PRELIMINARY APPLICATION TO FILE A PETITION FOR
NATURALIZATION, FORM N-400.  FOLLOWING A PRELIMINARY EXAMINATION, HE
FILED HIS PETITION FOR NATURALIZATION ON DECEMBER 22, 1952, TWO DAYS
BEFORE THE EFFECTIVE DATE OF THE IMMIGRATION AND NATIONALITY ACT OF
1952.  THE PRENATURALIZATION INVESTIGATION DISCLOSED THAT PETITIONER
HAD A CRIMINAL RECORD; HE HAD BEEN CONVICTED OF GRAND LARCENY IN 1913
AND OF MANSLAUGHTER IN 1915.  SECTION 241(A) OF THE 1952 ACT SUBJECTS
ALIENS TO DEPORTATION IF THEY ARE CONVICTED "AT ANY TIME AFTER ENTRY
...  OF TWO CRIMES INVOLVING MORAL TURPITUDE, NOT ARISING OUT OF A
SINGLE SCHEME OF CRIMINAL MISCONDUCT."  66 STAT. 204, 8 U.S.C. SEC.
1251(A)(4).  ON JUNE 22, 1953, A WARRANT OF ARREST WAS ISSUED AGAINST
PETITIONER, BASED ON HIS 1913 AND 1915 CONVICTIONS, CHARGING AS GROUNDS
FOR DEPORTATION PETITIONER'S PRESENCE IN THE COUNTRY IN VIOLATION OF
SEC. 241(A)(4).  THE DEPORTATION PROCEEDINGS WERE IN PROGRESS WHEN ON
JULY 28, 1953, PETITIONER, THROUGH AN ORDER TO SHOW CAUSE FILED IN THIS
CASE, MOVED TO COMPEL A FINAL HEARING ON HIS PETITION FOR
NATURALIZATION, AND, IN THE INTERIM, TO STAY THE DEPORTATION
PROCEEDINGS.  RELYING ON SEC. 318, SUPRA, THE DISTRICT JUDGE DENIED THE
MOTION AND THE COURT OF APPEALS AFFIRMED. 

PETITIONER'S MAIN ARGUMENT IS THAT UNDER SEC. 405(A) NOTHING
CONTAINED IN THE NEW ACT, "UNLESS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, SHALL BE CONSTRUED TO AFFECT  ...  ANY STATUS, CONDITION,
RIGHT IN PROCESS OF ACQUISITION  ...  DONE OR EXISTING, AT THE TIME
THIS ACT SHALL TAKE EFFECT."  PETITIONER WAS ELIGIBLE FOR CITIZENSHIP
UNDER THE PRIOR LAW AND REMAINS ELIGIBLE UNDER THE NEW ACT.  BUT UNDER
THE PRIOR LAW PETITIONER WAS NOT DEPORTABLE.  PETITIONER ARGUES THAT
THE DEPORTATION PROCEEDING, BASED SOLELY ON SEC. 241(A) OF THE NEW ACT,
(FN2) IS ADVERSELY AFFECTING A RIGHT PROTECTED BY SEC. 405(A), TO WIT,
HIS INCHOATE RIGHT TO CITIZENSHIP.  THIS, HE CLAIMS, IS IN DIRECT
CONTRAVENTION OF THE TERMS OF SEC. 405(A) UNLESS SOME OTHER SECTION IN
THE ACT "OTHERWISE SPECIFICALLY PROVIDES."  SECTION 318, ADVANCED AS
JUST SUCH AN EXCEPTION, SAYS "NOTWITHSTANDING THE PROVISIONS OF SECTION
405(B)  ...  ," AND MAKES NO MENTION OF SEC. 405(A).  THUS, PETITIONER
CONCLUDES, SEC. 318 IS NOT A SPECIFIC EXCEPTION TO THE PROTECTION
AFFORDED HIS RIGHTS BY SEC. 405(A), AND IF HE IS TO VINDICATE HIS
RIGHTS UNDER THAT SECTION HE MUST PREVAIL IN THE PRESENT PROCEEDINGS. 

WE AGREE WITH PETITIONER THAT, ABSENT A SPECIFIC PROVISION TO THE
CONTRARY, HE HAS RIGHTS PROTECTED BY SEC. 405(A).  THESE STEM FROM THE
FILING OF HIS FORM N-400, FROM HIS PETITION FOR NATURALIZATION, AND,
PERHAPS, FROM HIS FULFILLMENT OF THE FIVE-YEAR RESIDENCE REQUIREMENT. 
UNITED STATES V. MENASCHE, SUPRA.  BUT WE HOLD THAT SEC. 318
SPECIFICALLY EXCEPTS RIGHTS UNDER THE PRIOR LAW FROM THE PROTECTION OF
SEC. 405 WHEN THESE RIGHTS STEM FROM A PETITION FOR NATURALIZATION OR
FROM SOME OTHER STEP IN THE NATURALIZATION PROCESS.  (FN3) 

THE PRACTICE PREVIOUS TO THE ENACTMENT OF A PRIORITY PROVISION IN THE
IMMIGRATION AND NATIONALITY LAWS WAS FOR BOTH THE DEPORTATION AND
NATURALIZATION PROCESSES TO PROCEED ALONG TOGETHER UNTIL EITHER
PETITIONER'S DEPORTATION OR NATURALIZATION IPSO FACTO TERMINATED THE
POSSIBILITY OF THE OTHER OCCURRING.  SEE UNITED STATES V. WASKOWSKI,
158 F.2D 962.  AND IN THE FEW INSTANCES WHERE DEPORTATIONS WERE STAYED
IN ORDER TO PERMIT ALIENS TO OBTAIN A HEARING UNDER A RECENTLY ENACTED
NATURALIZATION PROVISION, THE REMEDY WAS BY HABEAS CORPUS AFTER THE
TERMINATION OF THE DEPORTATION PROCEEDINGS AND AFTER A STAY HAD BEEN
DENIED IN THOSE PROCEEDINGS.  UNITED STATES EX REL. WALTHER V. DISTRICT
DIRECTOR OF IMMIGRATION AND NATURALIZATION, 175 F.2D 693; PETITION OF
KAVADIAS, 177 F.2D 497.  BUT AS A GENERAL RULE STAYS WERE NOT UTILIZED,
CF. KLIG V. WATKINS, 84 F. SUPP.  486, AND THERE ENSUED A RACE BETWEEN
THE ALIEN TO GAIN CITIZENSHIP AND THE ATTORNEY GENERAL TO DEPORT HIM. 
IF THE ALIEN WAS SUCCESSFUL IN FORCING A FINAL HEARING AND THE GRANTING
OF HIS NATURALIZATION PETITION, THE DEPORTATION PROCEEDINGS WERE
COMPLETELY NULLIFIED.  TO REMEDY THIS SITUATION, THE CONGRESS
INCORPORATED SEC. 27 IN THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950,
64 STAT. 1015, 8 U.S.C. (1946 ED., SUPP. V) SEC. 729(C).  THIS SECTION
PROHIBITED NATURALIZATION OR THE HOLDING OF FINAL HEARINGS ON
NATURALIZATION PETITIONS WHERE DEPORTATION PROCEEDINGS WERE INSTITUTED
"UNDER THE PROVISIONS OF THIS OR ANY OTHER ACT."  THE 1950 ACT TOOK
EFFECT IMMEDIATELY AND CONTAINED NO SAVINGS CLAUSE, ALTHOUGH IT
INTRODUCED NEW GROUNDS FOR DEPORTATION WHICH WERE TO BE RETROACTIVELY
APPLIED.  SEE GALVAN V. PRESS, 347 U.S. 522.  AND IN UNITED STATES EX
REL. JANKOWSKI V. SHAUGHNESSY, 186 F.2D 580, THE PRIORITY PROVISION -
SEC. 27 - WAS HELD TO APPLY TO NATURALIZATION PETITIONS FILED BEFORE
THE EFFECTIVE DATE OF THE ACT, EVEN THOUGH THE DEPORTATION PROCEEDINGS
WERE COMMENCED, AS HERE, UNDER THE NEW STATUTE. 

SEC. 27 IN SUBSTANTIALLY THE SAME FORM, RETAINING THE LANGUAGE OF ITS
PREDECESSOR IN SUSPENDING FINAL HEARINGS ON NATURALIZATION WHERE
DEPORTATION PROCEEDINGS WERE INSTITUTED UNDER THIS OR ANY OTHER ACT. 
BUT PETITIONER CONTENDS THAT THIS PLAIN LANGUAGE DOES NOT APPLY TO HIS
CASE BECAUSE CONGRESS DID NOT SPECIFICALLY EXEMPT SEC. 318 FROM THE
OPERATION OF THE SAVINGS CLAUSE EMBODIED IN SEC. 405(A), UNDER WHICH
HIS INCHOATE RIGHT TO CITIZENSHIP IS PRESERVED. 

IT IS TRUE THAT SEC. 318 BEGINS WITH THE PHRASE "NOTWITHSTANDING THE
PROVISIONS OF SEC. 405(B)," WHICH AT FIRST GLANCE MIGHT INDICATE THAT
IT WAS INTENDED NOT TO APPLY TO SEC. 405(A).  BUT FURTHER ANALYSIS
RENDERS THIS POSITION UNTENABLE.  THE SAME PRIORITY SECTION HAD BEEN
INSERTED AS AN EMERGENCY PROVISION IN THE SUBVERSIVE ACTIVITIES CONTROL
ACT OF 1950, AND HAD BEEN GIVEN IMMEDIATE PROSPECTIVE AND RETROACTIVE
EFFECT.  IT WAS CARRIED FORWARD ALMOST VERBATIM AS SEC. 318 IN THE 1952
ACT.  AND TO MAKE CERTAIN THAT IT WOULD APPLY TO RIGHTS EXISTING UNDER
PETITIONS FOR NATURALIZATION, THE CONGRESS ADDED TO SEC. 318 THE PHRASE
"NOTWITHSTANDING THE PROVISIONS OF SECTION 405(B)," REFERRING TO THE
ONLY PART OF THE SAVINGS CLAUSE WHICH DEALS EXPLICITLY WITH THE LAW
APPLICABLE TO NATURALIZATION PETITIONS.  THE CONGRESSIONAL PURPOSE MUST
HAVE BEEN TO HAVE SEC. 318 SUPERSEDE RIGHTS STEMMING FROM SUCH
PETITIONS, FOR UNDER ANY OTHER INTERPRETATION ITS PREVIOUS APPROACH
UNDER THE 1950 LAW IS UNEXPLAINEDLY REVERSED AND THE "NOTWITHSTANDING"
CLAUSE IS RENDERED MEANINGLESS.  IT MAY BE THAT THE DRAFTSMEN COULD
HAVE BEEN MORE EXACT IN THEIR LANGUAGE, SINCE SEC. 405(A), AS WELL AS
SEC. 405(B), EMBRACES RIGHTS UNDER PENDING PETITIONS, SEE UNITED STATES
V. MENASCHE, SUPRA.  BUT WE THINK THEIR INTENT IS PLAIN ENOUGH. 

PETITIONER CONTENDS THAT THIS APPLICATION OF SEC. 318 WILL HAVE THE
RESULT OF AFFORDING MORE PROTECTION TO PREPETITION RIGHTS OF THE
MENASCHE-TYPE THAN TO INCHOATE RIGHTS UNDER A PETITION FOR
NATURALIZATION ITSELF, SINCE THE FORMER ARE NOT EMBRACED WITHIN SEC.
405(B).  BUT WE DO NOT BELIEVE SEC. 318 DIFFERENTIATES BETWEEN THESE
STEPS IN THE PROCESS OF NATURALIZATION.  EACH IS BUT PART OF THE WHOLE
PROCESS LEADING TO CITIZENSHIP AND EACH IS SUBJECT TO THE PROVISIONS OF
SEC. 318. 

NOR CAN WE ACCEPT PETITIONER'S ARGUMENT THAT CONGRESS INTENDED SEC.
318 TO APPLY ONLY TO DEPORTATION PROCEEDINGS BASED ON GROUNDS EXISTING
UNDER THE PRIOR LAW.  IN MAKING THIS CONTENTION, PETITIONER GIVES AWAY
NOTHING AND GAINS NOTHING.  IF THE GROUNDS FOR DEPORTATION ARE THE SAME
UNDER THE PRIOR LAW AS UNDER THE NEW ACT, THEN NOTHING IN THE NEW ACT
AFFECTS PETITIONER; IT IS CLEAR THAT RIGHTS UNDER THE SAVINGS CLAUSE
HAVE NOT BEEN INFRINGED EVEN IF THERE IS NO SPECIFIC EXCEPTION.  ONLY
WHERE SOMETHING IN THE NEW LAW INTRODUCES A CHANGE, THEREBY AFFECTING
ONE'S STATUS UNDER THE OLD LAW, IS THE SAVINGS CLAUSE CALLED INTO
PLAY.  ONLY THEN IS A SPECIFIC EXCEPTION TO SEC. 405 REQUIRED.  THUS,
IF PETITIONER'S CONSTRUCTION WERE TO PREVAIL, THE "NOTWITHSTANDING"
LANGUAGE IN SEC. 318 WOULD BE AS MEANINGLESS AS UNDER THE
INTERPRETATION PREVIOUSLY ADVANCED AND REJECTED.  THE "NOTWITHSTANDING"
CLAUSE TAKES ON MEANING ONLY WHEN WE ASSUME THAT THE NEW ACT HAD MADE
SOME CHANGE IN THE LAW TO WHICH THE "NOTWITHSTANDING" STATEMENT IS
NOTING A SPECIFIC EXCEPTION.  THAT IS THIS CASE.  (FN4) 

THE ROLE THUS PLAYED BY SEC. 405(B) IS IN SUBSTANTIAL ACCORD WITH THE
OPERATION OF ITS PREDECESSOR, SEC. 347(B) OF THE NATIONALITY ACT OF
1940, 54 STAT. 1168, 8 U.S.C. (1946 ED.)  SEC.  747.  IT WAS POINTED
OUT IN MENASCHE, SUPRA, THAT SEC. 347(B), WITH ITS TWO-YEAR LIMITATION,
WAS CONSIDERED TO BE A SPECIAL LIMITATION ON THE RIGHTS PRESERVED BY
SUBSECTION (A) OF THAT SAVINGS CLAUSE.  THE TWO-YEAR PERIOD HAS BEEN
DELETED IN SEC. 405(B), BUT THE SUBSECTION REMAINS A SPECIAL LIMITATION
ON THE BROAD SAVINGS PROVISION, BRINGING TO BEAR THE SPECIFIC
EXCEPTIONS FOUND IN SEC. 318 AND OTHER PROVISIONS OF THE NEW ACT
WHENEVER THE PROTECTION OF SEC. 405(A) IS SOUGHT FOR RIGHTS CONNECTED
WITH THE NATURALIZATION PROCESS.  (FN5) 

IN OUR VIEW, SEC. 405(B) IS THE VEHICLE FOR APPLYING EACH OF THESE
EXCEPTIONS TO THE RIGHTS AND LIABILITIES EMERGING FROM NATURALIZATION
PROCEEDINGS UNDER PRIOR LAW AND OTHERWISE PRESERVED BY SEC. 405(A).  IN
USING THE "NOTWITHSTANDING" LANGUAGE IN THESE SECTIONS, CONGRESS
CLEARLY MANIFESTED ITS INTENT THAT CERTAIN POLICIES SHOULD OVERRIDE THE
OTHERWISE BROAD AND PERVASIVE PRINCIPLE OF THE SAVINGS CLAUSE.  IN
UNITED STATES V. MENASCHE, SUPRA, WE RECOGNIZED THE WIDE SCOPE TO BE
GIVEN THE SAVINGS CLAUSE.  WE WOULD BE LAX IN OUR DUTY IF WE DID NOT
GIVE RECOGNITION ALSO TO THE CONGRESSIONAL PURPOSE TO OVERRIDE THE
SAVINGS CLAUSE WHEN OTHER CONSIDERATIONS WERE THOUGHT MORE COMPELLING
THAN THE PRESERVATION OF THE STATUS QUO.  IF WE ARE NOT TO NULLIFY THIS
CLEAR LEGISLATIVE PURPOSE AND RENDER MEANINGLESS THE "NOTWITHSTANDING"
LANGUAGE OF SEC. 318 AND THE OTHER SECTIONS, WE MUST FIND FOR THE
GOVERNMENT AND HOLD THAT SEC. 318 BARS PETITIONER'S ATTEMPT TO COMPEL A
HEARING ON HIS NATURALIZATION PETITION WHILE THE DEPORTATION PROCEEDING
IS PENDING.  AFFIRMED. 

FN1  THE TEXT OF THIS PROVISION, IN MATERIAL PART, IS AS FOLLOWS: 

"SEC. 318  ...  .  NOTWITHSTANDING THE PROVISIONS OF SECTION 405(B),
AND EXCEPT AS PROVIDED IN SECTIONS 327 AND 328 NO PERSON SHALL BE
NATURALIZED AGAINST WHOM THERE IS OUTSTANDING A FINAL FINDING OF
DEPORTABILITY PURSUANT TO A WARRANT OF ARREST ISSUED UNDER THE
PROVISIONS OF THIS OR ANY OTHER ACT; AND NO PETITION FOR NATURALIZATION
SHALL BE FINALLY HEARD BY A NATURALIZATION COURT IF THERE IS PENDING
AGAINST THE PETITIONER A DEPORTATION PROCEEDING PURSUANT TO A WARRANT
OF ARREST ISSUED UNDER THE PROVISIONS OF THIS OR ANY OTHER ACT:  ...
." 

FN2  IT IS ASSUMED FOR THE PURPOSES OF THIS PROCEEDING THAT
PETITIONER IS DEPORTABLE UNDER SEC. 241(A).  SEE NOTE 3, INFRA. 

FN3  THIS IS NOT TO SAY THAT PETITIONER CANNOT CHALLENGE THE
AUTHORITY OF THE ATTORNEY GENERAL TO DEPORT HIM UNDER SEC. 241(A) OF
THE 1952 ACT.  WE EXPRESS NO OPINION AS TO WHETHER SUCH A CHALLENGE,
GROUNDED ON THE SAVINGS CLAUSE OR OTHERWISE, MIGHT SUCCEED IF MADE IN
THE DEPORTATION PROCEEDINGS.  WHETHER THE QUESTION OF DEPORTABILITY
COULD BE RAISED IN A NATURALIZATION PROCEEDING WAS EXPRESSLY WAIVED BY
THE PETITIONER.  SEE PETITIONER'S BRIEF, P. 7. 

FN4  PETITIONER'S FURTHER ARGUMENT, THAT A CHANGE IN THE PUNCTUATION
OF SEC. 318 RESULTED IN THE APPLICATION OF THE "NOTWITHSTANDING" CLAUSE
TO FINAL FINDINGS OF DEPORTABILITY BUT NOT TO PENDING PROCEEDINGS, MUST
BE REJECTED.  WHEN VIEWED AGAINST THE PURPOSE OF THE CLAUSE, THE
CIRCUMSTANCES SURROUNDING THE CONTROVERTED CHANGE, AND THE USUAL RULES
OF PROPER PUNCTUATION, THE CONTENTION IS SHOWN TO BE WITHOUT
SUBSTANCE.    FN5  SECTION 311 PROVIDES THAT THE RIGHT TO
NATURALIZATION SHALL NOT BE ABRIDGED BECAUSE OF RACE, SEX OR MARRIAGE,
AND, "NOTWITHSTANDING SECTION 405(B), THIS SECTION SHALL APPLY TO ANY
PERSON WHOSE PETITION FOR NATURALIZATION SHALL HEREAFTER BE FILED, OR
SHALL HAVE BEEN PENDING ON THE EFFECTIVE DATE OF THIS ACT."  66 STAT.
239, 8 U.S.C. SEC. 1422. 

405(B), NO PERSON SHALL HEREAFTER BE NATURALIZED" WHO ENGAGES IN
SPECIFIED SUBVERSIVE ACTIVITIES OR WHO IS A MEMBER OF DESCRIBED
SUBVERSIVE ORGANIZATIONS.  66 STAT. 240, 8 U.S.C. SEC. 1424(A). 

405(B)," ONE WHO CLAIMS OR HAS CLAIMED HIS ALIENAGE AND "IS OR WAS"
THEREBY RELIEVED OF SERVICE IN THE ARMED FORCES, "SHALL BE PERMANENTLY
INELIGIBLE TO BECOME A CITIZEN."  66 STAT. 242, 8 U.S.C.  SEC.
1426(A). 

STATES:  "NOTWITHSTANDING THE PROVISIONS OF SECTION 405(B), THIS
SUBSECTION SHALL ALSO APPLY TO THE CASE OF ANY SUCH ALIEN WHOSE
PETITION FOR NATURALIZATION WAS FILED PRIOR TO THE EFFECTIVE DATE OF
THIS ACT AND WHICH IS STILL PENDING ON THAT DATE."  66 STAT. 252, 8
U.S.C. SEC. 1442(D). 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















COMMISSIONER OF INTERNAL REVENUE V. GLENSHAW GLASS CO. 348 U.S. 426 


NO. 199.  ARGUED FEBRUARY 28, 1955 - DECIDED MARCH 28, 1955 - 211 F.2D
928, REVERSED. 


MONEY RECEIVED AS EXEMPLARY DAMAGES FOR FRAUD OR AS THE PUNITIVE TWO
THIRDS PORTION OF A TREBLE-DAMAGE ANTITRUST RECOVERY MUST BE REPORTED
BY A TAXPAYER AS "GROSS INCOME" UNDER SEC. 22(A) OF THE INTERNAL
REVENUE CODE OF 1939.  PP. 427-433. 

(A)  IN DETERMINING WHAT CONSTITUTES "GROSS INCOME" AS DEFINED IN
SEC. 22(A), EFFECT MUST BE GIVEN TO THE CATCHALL LANGUAGE "GAINS OR
PROFITS AND INCOME DERIVED FROM ANY SOURCE WHATEVER."  PP. 429-430. 

(B)  EISNER V. MACOMBER, 252 U.S. 189, DISTINGUISHED.  PP. 430-431. 

(C)  THE MERE FACT THAT SUCH PAYMENTS ARE EXTRACTED FROM THE
WRONGDOERS AS PUNISHMENT FOR UNLAWFUL CONDUCT CANNOT DETRACT FROM THEIR
CHARACTER AS TAXABLE INCOME TO THE RECIPIENTS.  P. 431. 

(D)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT SEC. 22(A)
WAS RE-ENACTED WITHOUT CHANGE AFTER THE BOARD OF TAX APPEALS HAD HELD
PUNITIVE DAMAGES NONTAXABLE IN HIGHLAND FARMS CORP., 42 B.T.A. 1314. 
PP. 431-432. 

(E)  THE LEGISLATIVE HISTORY OF THE INTERNAL REVENUE CODE OF 1954
DOES NOT REQUIRE A DIFFERENT RESULT.  THE DEFINITION OF GROSS INCOME
WAS SIMPLIFIED, BUT NO EFFECT UPON ITS PRESENT BROAD SCOPE WAS
INTENDED.  P. 432. 

(F)  PUNITIVE DAMAGES CANNOT BE CLASSIFIED AS GIFTS, NOR DO THEY COME
UNDER ANY OTHER EXEMPTION IN THE CODE.  P. 432. 

COMMISSIONER OF INTERNAL REVENUE V. GLENSHAW GLASS CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT.* 

*TOGETHER WITH COMMISSIONER OF INTERNAL REVENUE V. WILLIAM GOLDMAN
THEATRES, INC., WHICH WAS A SEPARATE CASE DECIDED BY THE COURT OF
APPEALS IN THE SAME OPINION. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION INVOLVES TWO CASES WITH INDEPENDENT FACTUAL
BACKGROUNDS YET PRESENTING THE IDENTICAL ISSUE.  THE TWO CASES WERE
CONSOLIDATED FOR ARGUMENT BEFORE THE COURT OF APPEALS FOR THE THIRD
CIRCUIT AND WERE HEARD EN BANC.  THE COMMON QUESTION IS WHETHER MONEY
RECEIVED AS EXEMPLARY DAMAGES FOR FRAUD OR AS THE PUNITIVE TWO-THIRDS
PORTION OF A TREBLE-DAMAGE ANTITRUST RECOVERY MUST BE REPORTED BY A
TAXPAYER AS GROSS INCOME UNDER SEC. 22(A) OF THE INTERNAL REVENUE CODE
OF 1939.  (FN1)  IN A SINGLE OPINION, 211 F.2D 928, THE COURT OF
APPEALS AFFIRMED THE TAX COURT'S SEPARATE RULINGS IN FAVOR OF THE
TAXPAYERS.  18 T.C. 860; 19 T.C. 637.  BECAUSE OF THE FREQUENT
RECURRENCE OF THE QUESTION AND DIFFERING INTERPRETATIONS BY THE LOWER
COURTS OF THIS COURT'S DECISIONS BEARING UPON THE PROBLEM, WE GRANTED
THE COMMISSIONER OF INTERNAL REVENUE'S ENSUING PETITION FOR
CERTIORARI.   348 U.S. 813. 

THE FACTS OF THE CASE WERE LARGELY STIPULATED AND ARE NOT IN
DISPUTE.  SO FAR AS PERTINENT THEY ARE AS FOLLOWS: 

COMMISSIONER V. GLENSHAW GLASS CO. - THE GLENSHAW GLASS COMPANY, A
PENNSYLVANIA CORPORATION, MANUFACTURES GLASS BOTTLES AND CONTAINERS. 
IT WAS ENGAGED IN PROTRACTED LITIGATION WITH THE HARTFORD-EMPIRE
COMPANY, WHICH MANUFACTURES MACHINERY OF A CHARACTER USED BY GLENSHAW. 
AMONG THE CLAIMS ADVANCED BY GLENSHAW WERE DEMANDS FOR EXEMPLARY
DAMAGES FOR FRAUD (FN2) AND TREBLE DAMAGES FOR INJURY TO ITS BUSINESS
BY REASON OF HARTFORD'S VIOLATION OF THE FEDERAL ANTITRUST LAWS.  (FN3)
IN DECEMBER, 1947, THE PARTIES CONCLUDED A SETTLEMENT OF ALL PENDING
LITIGATION, BY WHICH HARTFORD PAID GLENSHAW APPROXIMATELY $800,000. 
THROUGH A METHOD OF ALLOCATION WHICH WAS APPROVED BY THE TAX COURT, 18
T.C. 860, 870-872, AND WHICH IS NO LONGER IN ISSUE, IT WAS ULTIMATELY
DETERMINED THAT, OF THE TOTAL SETTLEMENT, $324,529.94 REPRESENTED
PAYMENT OF PUNITIVE DAMAGES FOR FRAUD AND ANTITRUST VIOLATIONS. 
GLENSHAW DID NOT REPORT THIS PORTION OF THE SETTLEMENT AS INCOME FOR
THE TAX YEAR INVOLVED.  THE COMMISSIONER DETERMINED A DEFICIENCY
CLAIMING AS TAXABLE THE ENTIRE SUM LESS ONLY DEDUCTIBLE LEGAL FEES.  AS
PREVIOUSLY NOTED, THE TAX COURT AND THE COURT OF APPEALS UPHELD THE
TAXPAYER. 

COMMISSIONER V. WILLIAM GOLDMAN THEATRES, INC. - WILLIAM GOLDMAN
THEATRES, INC., A DELAWARE CORPORATION OPERATING MOTION PICTURE HOUSES
IN PENNSYLVANIA, SUED LOEW'S, INC., ALLEGING A VIOLATION OF THE FEDERAL
ANTITRUST LAWS AND SEEKING TREBLE DAMAGES.  AFTER A HOLDING THAT A
VIOLATION HAD OCCURRED, WILLIAM GOLDMAN THEATRES, INC. V. LOEW'S, INC.,
150 F.2D 738, THE CASE WAS REMANDED TO THE TRIAL COURT FOR A
DETERMINATION OF DAMAGES.  IT WAS FOUND THAT GOLDMAN HAD SUFFERED A
LOSS OF PROFITS EQUAL TO $125,000 AND WAS ENTITLED TO TREBLE DAMAGES IN
THE SUM OF $375,000.  WILLIAM GOLDMAN THEATRES, INC. V. LOEW'S, INC.,
69 F. SUPP. 103, AFF'D, 164 F.2D 1021, CERT. DENIED, 334 U.S. 811. 
GOLDMAN REPORTED ONLY $125,000 OF THE RECOVERY AS GROSS INCOME AND
CLAIMED THAT THE $250,000 BALANCE CONSTITUTED PUNITIVE DAMAGES AND AS
SUCH WAS NOT TAXABLE.  THE TAX COURT AGREED, 19 T.C.  637, AND THE
COURT OF APPEALS, HEARING THIS WITH THE GLENSHAW CASE, AFFIRMED.  211
F.2D 928. 

IT IS CONCEDED BY THE RESPONDENTS THAT THERE IS NO CONSTITUTIONAL
BARRIER TO THE IMPOSITION OF A TAX ON PUNITIVE DAMAGES.  OUR QUESTION
IS ONE OF STATUTORY CONSTRUCTION:  ARE THESE PAYMENTS COMPREHENDED BY
SEC. 22(A)? 

THE SWEEPING SCOPE OF THE CONTROVERTED STATUTE IS READILY APPARENT: 

"SEC. 22.  GROSS INCOME. 

"(A)  GENERAL DEFINITION.  - 'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICE  ...  OF WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER  ... ."  (FN4) 

THIS COURT HAS FREQUENTLY STATED THAT THIS LANGUAGE WAS USED BY
CONGRESS TO EXERT IN THIS FIELD "THE FULL MEASURE OF ITS TAXING
POWER."  HELVERING V. CLIFFORD, 309 U.S. 331, 334; HELVERING V. MIDLAND
MUTUAL LIFE INS. CO., 300 U.S. 216, 223; DOUGLAS V. WILLCUTS, 296 U.S.
1, 9; IRWIN V. GAVIT, 268 U.S. 161, 166.  RESPONDENTS CONTEND THAT
PUNITIVE DAMAGES, CHARACTERIZED AS "WINDFALLS" FLOWING FROM THE
CULPABLE CONDUCT OF THIRD PARTIES, ARE NOT WITHIN THE SCOPE OF THE
TAXABLE RECEIPTS, NOR RESTRICTIVE LABELS AS TO THEIR NATURE.  AND THE
COURT HAS GIVEN A LIBERAL CONSTRUCTION TO THIS BROAD PHRASEOLOGY IN
RECOGNITION OF THE INTENTION OF CONGRESS TO TAX ALL GAINS EXCEPT THOSE
SPECIFICALLY EXEMPTED.  COMMISSIONER V. JACOBSON, 336 U.S. 28, 49;
HELVERING V. STOCKHOLMS ENSKILDA BANK, 293 U.S. 84, 87-91.  THUS, THE
FORTUITOUS GAIN ACCRUING TO A LESSOR BY REASON OF THE FORFEITURE OF A
LESSEE'S IMPROVEMENTS ON THE RENTED PROPERTY WAS TAXED IN HELVERING V.
BRUUN, 309 U.S. 461.  CF. ROBERTSON V. UNITED STATES, 343 U.S. 711;
RUTKIN V. UNITED STATES, 343 U.S. 130; UNITED STATES V. KIRBY LUMBER
CO., 284 U.S. 1.  SUCH DECISIONS DEMONSTRATE THAT WE CANNOT BUT ASCRIBE
CONTENT TO THE CATCHALL PROVISION OF SEC. 22(A), "GAINS OR PROFITS AND
INCOME DERIVED FROM ANY SOURCE WHATEVER."  THE IMPORTANCE OF THAT
PHRASE HAS BEEN TOO FREQUENTLY RECOGNIZED SINCE ITS FIRST APPEARANCE IN
THE REVENUE ACT OF 1913 (FN5) TO SAY NOW THAT IT ADDS NOTHING TO THE
MEANING OF "GROSS INCOME." 

NOR CAN WE ACCEPT RESPONDENTS' CONTENTION THAT A NARROWER READING OF
SEC. 22(A) IS REQUIRED BY THE COURT'S CHARACTERIZATION OF INCOME IN
EISNER V. MACOMBER, 262 U.S. 189, 207, AS "THE GAIN DERIVED FROM
CAPITAL, FROM LABOR, OR FROM BOTH COMBINED."  (FN6)  THE COURT WAS
THERE ENDEAVORING TO DETERMINE WHETHER THE DISTRIBUTION OF A CORPORATE
STOCK DIVIDEND CONSTITUTED A REALIZED GAIN TO THE SHAREHOLDER, OR
CHANGED "ONLY THE FORM, NOT THE ESSENCE," OF HIS CAPITAL INVESTMENT. 
ID., AT 210.  IT WAS HELD THAT THE TAXPAYER HAD "RECEIVED NOTHING OUT
OF THE COMPANY'S ASSETS FOR HIS SEPARATE USE AND BENEFIT."  ID., AT
211.  THE DISTRIBUTION, THEREFORE, WAS HELD NOT A TAXABLE EVENT.  IN
THAT CONTEXT - DISTINGUISHING GAIN FROM CAPITAL - THE DEFINITION SERVED
A USEFUL PURPOSE.  BUT IT WAS NOT MEANT TO PROVIDE A TOUCHSTONE TO ALL
FUTURE GROSS INCOME QUESTIONS.  HELVERING V. BRUUN, SUPRA, AT 468-469;
UNITED STATES V. KIRBY LUMBER CO., SUPRA, AT 3. 

HERE WE HAVE INSTANCES OF UNDENIABLE ACCESSIONS TO WEALTH, CLEARLY
REALIZED, AND OVER WHICH THE TAXPAYERS HAVE COMPLETE DOMINION.  THE
MERE FACT THAT THE PAYMENTS WERE EXTRACTED FROM THE WRONGDOERS AS
PUNISHMENT FOR UNLAWFUL CONDUCT CANNOT DETRACT FROM THEIR CHARACTER AS
TAXABLE INCOME TO THE RECIPIENTS.  RESPONDENTS CONCEDE, AS THEY MUST,
THAT THE RECOVERIES ARE TAXABLE TO THE EXTENT THAT THEY COMPENSATE FOR
DAMAGES ACTUALLY INCURRED.  IT WOULD BE AN ANOMALY THAT COULD NOT BE
JUSTIFIED IN THE ABSENCE OF CLEAR CONGRESSIONAL INTENT TO SAY THAT A
RECOVERY FOR ACTUAL DAMAGES IS TAXABLE BUT NOT THE ADDITIONAL AMOUNT
EXTRACTED AS PUNISHMENT FOR THE SAME CONDUCT WHICH CAUSED THE INJURY. 
AND WE FIND NO SUCH EVIDENCE OF INTENT TO EXEMPT THESE PAYMENTS. 

IT IS URGED THAT RE-ENACTMENT OF SEC. 22(A) WITHOUT CHANGE SINCE THE
BOARD OF TAX APPEALS HELD PUNITIVE DAMAGES NONTAXABLE IN HIGHLAND FARMS
CORP., 42 B.T.A. 1314, INDICATES CONGRESSIONAL SATISFACTION WITH THAT
HOLDING.  RE-ENACTMENT - PARTICULARLY WITHOUT THE SLIGHTEST AFFIRMATIVE
INDICATION THAT CONGRESS EVER HAD THE HIGHLAND FARMS DECISION BEFORE IT
- IS AN UNRELIABLE INDICIUM AT BEST.  HELVERING V. WILSHIRE OIL CO.,
308 U.S. 90, 100-101; KOSHLAND V. HELVERING, 298 U.S. 441, 447. 
MOREOVER, THE COMMISSIONER PROMPTLY PUBLISHED HIS NONACQUIESCENCE IN
THIS PORTION OF THE HIGHLAND FARMS HOLDING (FN7) AND HAS, BEFORE AND
SINCE, CONSISTENTLY MAINTAINED THE POSITION THAT THESE RECEIPTS ARE
TAXABLE.  (FN8)  IT THEREFORE CANNOT BE SAID WITH CERTITUDE THAT
CONGRESS INTENDED TO CARVE AN EXCEPTION OUT OF SEC. 22(A)'S PERVASIVE
COVERAGE.  NOR DOES THE 1954 CODE'S (FN9) LEGISLATIVE HISTORY, WITH ITS
REITERATION OF THE PROPOSITION THAT STATUTORY GROSS INCOME IS "ALL
INCLUSIVE," (FN10) GIVE SUPPORT TO RESPONDENTS' POSITION.  THE
DEFINITION OF GROSS INCOME HAS BEEN SIMPLIFIED, BUT NO EFFECT UPON ITS
PRESENT BROAD SCOPE WAS INTENDED.  (FN11)  CERTAINLY PUNITIVE DAMAGES
CANNOT REASONABLY BE CLASSIFIED AS GIFTS, CF. COMMISSIONER V. JACOBSON,
336 U.S. 28, 47-52, NOR DO THEY COME UNDER ANY OTHER EXEMPTION
PROVISION IN THE CODE.  WE WOULD DO VIOLENCE TO THE PLAIN MEANING OF
THE STATUTE AND RESTRICT A CLEAR LEGISLATIVE ATTEMPT TO BRING THE
TAXING POWER TO BEAR UPON ALL RECEIPTS CONSTITUTIONALLY TAXABLE WERE WE
TO SAY THAT THE PAYMENTS IN QUESTION HERE ARE NOT GROSS INCOME.  SEE
HELVERING V. MIDLAND MUTUAL LIFE INS. CO., SUPRA, AT 223.  REVERSED. 

FN1  53 STAT. 9, 53 STAT. 574, 26 U.S.C. SEC. 22(A). 

FN2  FOR THE BASES OF GLENSHAW'S CLAIM FOR DAMAGES FROM FRAUD, SEE
SHAWKEE MANUFACTURING CO. V. HARTFORD-EMPIRE CO., 322 U.S. 271; HAZEL
ATLAS GLASS CO. V. HARTFORD-EMPIRE CO., 322 U.S. 238. 

FN3  SEE HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 324 U.S.
570. 

FN4  SEE NOTE 1, SUPRA. 

FN5  38 STAT. 114, 167. 

FN6  THE PHRASE WAS DERIVED FROM STRATTON'S INDEPENDENCE, LTD. V.
HOWBERT, 231 U.S. 399, 415, AND DOYLE V. MITCHELL BROS. CO., 247 U.S.
179, 185, TWO CASES CONSTRUING THE REVENUE ACT OF 1909, 36 STAT. 11,
112.  BOTH TAXPAYERS WERE "WASTING ASSET" CORPORATIONS, ONE BEING
ENGAGED IN MINING, THE OTHER IN LUMBERING OPERATIONS.  THE DEFINITION
WAS APPLIED BY THE COURT TO DEMONSTRATE A DISTINCTION BETWEEN A RETURN
ON CAPITAL AND "A MERE CONVERSION OF CAPITAL ASSETS."  DOYLE V.
MITCHELL BROS. CO., SUPRA, AT 184.  THE QUESTION RAISED BY THE INSTANT
CASE IS CLEARLY DISTINGUISHABLE. 

FN7  1941-1 CUM. BULL.  16. 

FN8  THE LONG HISTORY OF DEPARTMENTAL RULINGS HOLDING PERSONAL INJURY
RECOVERIES NONTAXABLE ON THE THEORY THAT THEY ROUGHLY CORRESPOND TO A
RETURN OF CAPITAL CANNOT SUPPORT EXEMPTION OF PUNITIVE DAMAGES
FOLLOWING INJURY TO PROPERTY.  SEE 2 CUM. BULL.  71; I-1 CUM. BULL. 
92, 93; VII-2 CUM. BULL.  123; 1954-1 CUM. BULL.  179, 180.  DAMAGES
FOR PERSONAL INJURY ARE BY DEFINITION COMPENSATORY ONLY.  PUNITIVE
DAMAGES, ON THE OTHER HAND, CANNOT BE CONSIDERED A RESTORATION OF
CAPITAL FOR TAXATION PURPOSES. 

FN9  68A STAT. 3 ET SEQ. SECTION 61(A) OF THE INTERNAL REVENUE CODE
OF 1954, 68A STAT.  17, IS THE SUCCESSOR TO SEC. 22(A) OF THE 1939
CODE. 

FN10  H.R. REP. NO. 1337, 83D CONG., 2D SESS. A18; S. REP. NO. 1622,
83D CONG., 2D SESS. 168. 

FN11  IN DISCUSSING SEC. 61(A) OF THE 1954 CODE, THE HOUSE REPORT
STATES: 

"THIS SECTION CORRESPONDS TO SECTION 22(A) OF THE 1939 CODE.  WHILE
THE LANGUAGE IN EXISTING SECTION 22(A) HAS BEEN SIMPLIFIED, THE ALL
INCLUSIVE NATURE OF STATUTORY GROSS INCOME HAS NOT BEEN AFFECTED
THEREBY.  SECTION 61(A) IS AS BROAD IN SCOPE AS SECTION 22(A). 

"SECTION 61(A) PROVIDES THAT GROSS INCOME INCLUDES 'ALL INCOME FROM
WHATEVER SOURCE DERIVED.'  THIS DEFINITION IS BASED UPON THE 16TH
AMENDMENT AND THE WORD 'INCOME' IS USED IN ITS CONSTITUTIONAL SENSE." 
H.R. REP. NO. 1337, SUPRA, NOTE 10, AT A18. 

A VIRTUALLY IDENTICAL STATEMENT APPEARS IN S. REP. NO. 1622, SUPRA,
NOTE 10, AT 168. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















GENERAL AMERICAN INVESTORS CO., INC. V. COMMISSIONER OF INTERNAL REVENUE
348 U.S. 434 


NO. 114.  ARGUED FEBRUARY 28, 1955, DECIDED MARCH 28, 1955 - 211 F.2D
522, AFFIRMED. 


PAYMENTS RECEIVED BY A CORPORATION PURSUANT TO THE "INSIDER PROFITS"
PROVISIONS OF THE SECURITIES EXCHANGE ACT OF 1934 AND THE INVESTMENT
COMPANY ACT OF 1940 ARE TAXABLE AS "GROSS INCOME" TO THE CORPORATION
UNDER SEC. 22(A) OF THE INTERNAL REVENUE CODE OF 1939.  COMMISSIONER V.
GLENSHAW GLASS CO., ANTE, P. 426.  PP. 434-436. 

GENERAL AMERICAN INVESTORS CO., INC. V. COMMISSIONER OF INTERNAL
REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION PRESENTED BY THIS CASE IS WHETHER A PAYMENT IS
TAXABLE AS GROSS INCOME WHEN RECEIVED BY A CORPORATION PURSUANT TO THE
"INSIDER PROFITS" PROVISIONS OF THE SECURITIES EXCHANGE ACT OF 1934
(FN1) AND THE INVESTMENT COMPANY ACT OF 1940.  (FN2)  SUBJECT TO
EXCEPTIONS NOT PRESENTLY RELEVANT, SEC. 16(B) OF THE SECURITIES
EXCHANGE ACT PROVIDES THAT THE PROFIT REALIZED FROM CERTAIN DEFINED
SECURITIES TRANSACTIONS UNDERTAKEN BY A DIRECTOR OR MAJOR STOCKHOLDER
OF THE ISSUING CORPORATION "SHALL INURE TO AND BE RECOVERABLE BY THE
ISSUER."  (FN3)  THIS PROVISION IS MADE APPLICABLE TO INVESTMENT
COMPANIES BY SEC.  30(F) OF THE INVESTMENT COMPANY ACT OF 1940.  (FN4)
UNDER THESE PROVISIONS, PETITIONER, A REGISTERED CLOSED-END INVESTMENT
COMPANY, RECEIVED PAYMENTS TOTALLING $170,038.04.  THIS SUM REPRESENTED
THE PROFITS ACCRUING TO ONE OF PETITIONER'S DIRECTORS AND A STOCKHOLDER
THROUGH DEALINGS COVERED BY SEC. 16(B); THE MONEY WAS PAID OVER TO
PETITIONER ON DEMAND AND WITHOUT LITIGATION.  THE PAYMENTS WERE NOT
REPORTED AS INCOME ON PETITIONER'S TAX RETURNS.  THE COMMISSIONER OF
INTERNAL REVENUE ALLOWED A $13,000 DEDUCTION FOR LEGAL EXPENSES
INCURRED IN RECOVERING THE AMOUNTS DUE BUT ASSERTED A DEFICIENCY FOR
THE BALANCE ON THE GROUND THAT THE RECEIPTS CONSTITUTED TAXABLE GAINS
UNDER SEC. 22(A) OF THE INTERNAL REVENUE CODE OF 1939.  (FN5)  THE TAX
COURT, 19 T.C. 581, AND THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
211 F.2D 522, SUSTAINED THE COMMISSIONER'S DETERMINATION.  WE GRANTED
CERTIORARI, 348 U.S. 812, BECAUSE OF AN APPARENT SIMILARITY OF ISSUES
HERE TO THOSE INVOLVED IN COMMISSIONER V. GLENSHAW GLASS CO., 211 F.2D
928 (C.A. 3D CIR.), AND THE POSSIBLE CONFLICT BETWEEN THAT CASE AND
THIS.  (FN6) 

WE HAVE THIS DAY DECIDED THAT THE RECOVERY OF PUNITIVE DAMAGES FOR
FRAUD OR ANTITRUST VIOLATION IS REPORTABLE AS GROSS INCOME WITHIN THE
MEANING OF SEC. 22(A).  COMMISSIONER V. GLENSHAW GLASS CO., ANTE, P.
426.  THE REASONS WHICH DICTATED THAT RESULT ARE EQUALLY COMPELLING
HERE.  WE SEE NO SIGNIFICANT DIFFERENCE IN THE NATURE OF THESE RECEIPTS
WHICH MIGHT MAKE THAT RULING INAPPLICABLE.  AS IN GLENSHAW, THE
TAXPAYER REALIZED THE MONEY IN QUESTION FREE OF ANY RESTRICTIONS AS TO
USE.  THE PAYMENTS IN CONTROVERSY WERE NEITHER CAPITAL CONTRIBUTIONS
NOR GIFTS.  CF. TEXAS & PACIFIC R. CO. V. UNITED STATES, 286 U.S. 285. 
THERE IS NO INDICATION THAT CONGRESS INTENDED TO EXEMPT THEM FROM
COVERAGE.  IN ACCORDANCE WITH THE LEGISLATIVE DESIGN TO REACH ALL GAIN
CONSTITUTIONALLY TAXABLE UNLESS SPECIFICALLY EXCLUDED, WE CONCLUDE THAT
THE PETITIONER IS LIABLE FOR THE TAX AND THE JUDGMENT IS AFFIRMED. 

FN1  48 STAT. 881, 15 U.S.C. SEC. 78A. 

FN2  54 STAT. 789, 15 U.S.C. SEC. 80A-1. 

FN3  48 STAT. 896, 15 U.S.C. SEC. 78P. 

FN4  54 STAT. 837, 15 U.S.C. SEC. 80A-29. 

FN5  "SEC.  22.  GROSS INCOME. 

"(A)  GENERAL DEFINITION.  - 'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICE  ...  OF WHATEVER KIND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER  ...  ."  53 STAT. 9, 53 STAT. 574, 26 U.S.C.  SEC.
22(A). 

FN6  THERE WAS, HOWEVER, NO DISAGREEMENT AMONG LOWER COURTS WHICH
FACED THE QUESTION OF THE TAXABILITY OF A SEC. 16(B) RECOVERY OF
"INSIDER PROFITS."  SEE PARK & TILFORD DISTILLERS CORP. V. UNITED
STATES, 123 CT. CL. 509, 107 F. SUPP. 941; NOMA ELECTRIC CORP., 12
T.C.M.  1 (CCH TAX CT. MEM., DEC. 1953). 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



ASSOCIATION OF WESTINGHOUSE SALARIED EMPLOYEES V. WESTINGHOUSE ELECTRIC
CORP. 348 U.S. 437 


NO. 51.  ARGUED NOVEMBER 17-18, 1954 - DECIDED MARCH 28, 1955 - 210 F.2D
623, AFFIRMED. 


UNDER SEC. 301 OF THE LABOR MANAGEMENT RELATIONS ACT AND THE FEDERAL
DECLARATORY JUDGMENT ACT, PETITIONER, AN UNINCORPORATED LABOR
ORGANIZATION, BROUGHT SUIT IN A FEDERAL DISTRICT COURT IN PENNSYLVANIA
AGAINST RESPONDENT, A PENNSYLVANIA CORPORATION ENGAGED IN INTERSTATE
COMMERCE, TO ENFORCE A COLLECTIVE BARGAINING AGREEMENT BETWEEN THEM. 
PETITIONER ALLEGED THAT IT WAS THE COLLECTIVE BARGAINING REPRESENTATIVE
OF A GROUP OF RESPONDENT'S EMPLOYEES AND THAT RESPONDENT HAD VIOLATED
THE AGREEMENT BY REFUSING TO PAY 4,000 OF THEM FOR WORK ON ONE DAY WHEN
THEY WERE ABSENT.  IT ASKED THE COURT TO INTERPRET THE CONTRACT,
DECLARE THE RIGHTS OF THE PARTIES, COMPEL RESPONDENT TO MAKE AN
ACCOUNTING, AND ENTER JUDGMENT FOR THE UNPAID WAGES AGAINST RESPONDENT
AND IN FAVOR OF THE INDIVIDUAL EMPLOYEES, WHO WERE NOT MADE PARTIES TO
THE SUIT.  HELD:  THE FEDERAL COURT DID NOT HAVE JURISDICTION OF THE
SUIT.  PP. 439-465. 

MR. JUSTICE FRANKFURTER, IN AN OPINION JOINED BY MR. JUSTICE BURTON
AND MR. JUSTICE MINTON, CONCLUDED THAT: 

1.  NEITHER THE TEXT OF SEC. 301 NOR ITS LEGISLATIVE HISTORY IMPLIES
THE EXISTENCE OR THE ESTABLISHMENT OF A BODY OF GENERAL FEDERAL
SUBSTANTIVE LAW FOR APPLICATION IN SUITS UNDER IT.  PP. 441-449. 

2.  IN THE PRESENT SUIT, THERE IS NEITHER DIVERSITY OF CITIZENSHIP
NOR A "FEDERAL QUESTION" IN THE TRADITIONAL SENSE.  THEREFORE, A
SERIOUS CONSTITUTIONAL QUESTION WOULD ARISE IF SEC. 301 WERE CONSTRUED
TO AUTHORIZE THIS SUIT IN A FEDERAL COURT.  PP. 449-452. 

3.  THIS CONSTITUTIONAL PROBLEM MAY NOT BE AVOIDED BY JUDICIAL
CREATION OF FEDERAL SUBSTANTIVE LAW.  PP. 452-459. 

4.  IN VIEW OF THE CONSTITUTIONAL PROBLEM AND IN THE ABSENCE OF ANY
POSITIVE INDICATION EITHER ON THE FACE OF THE STATUTE OR IN ITS
LEGISLATIVE HISTORY THAT SUCH SUITS WERE CONTEMPLATED, SEC. 301 WILL
NOT BE CONSTRUED TO GRANT A FEDERAL COURT JURISDICTION OVER THIS SUIT. 
PP. 459-461. 

MR. CHIEF JUSTICE WARREN, IN A CONCURRING OPINION JOINED BY MR.
JUSTICE CLARK, CONCLUDED THAT THE ONLY QUESTION INVOLVED IS ONE OF
STATUTORY INTERPRETATION AND THAT THE LANGUAGE OF SEC. 301 IS NOT
SUFFICIENTLY EXPLICIT NOR ITS LEGISLATIVE HISTORY SUFFICIENTLY CLEAR TO
INDICATE THAT CONGRESS INTENDED TO AUTHORIZE A UNION TO ENFORCE IN A
FEDERAL COURT THE UNIQUELY PERSONAL RIGHT OF AN EMPLOYEE FOR WHOM IT
HAD BARGAINED TO RECEIVE COMPENSATION FOR SERVICES RENDERED HIS
EMPLOYER.  P. 461. 

MR. JUSTICE REED, CONCURRING, CONCLUDED THAT: 

1.  A CAUSE OF ACTION FOR BREACH OF A CONTRACT MADE UNDER THE
NATIONAL LABOR RELATIONS ACT BETWEEN A UNION AND AN EMPLOYER IS A CAUSE
OF ACTION ARISING UNDER FEDERAL LAW, AND CONGRESS MAY CONSTITUTIONALLY
GIVE A FEDERAL COURT JURISDICTION OVER IT.  PP. 461-464. 

2.  IN THIS CASE, THE CLAIM FOR WAGES ARISES FROM SEPARATE HIRING
CONTRACTS BETWEEN THE EMPLOYER AND EACH EMPLOYEE, NOT FROM THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE EMPLOYER AND THE UNION. 
THEREFORE, IT DOES NOT INVOLVE SUCH A VIOLATION OF A CONTRACT BETWEEN
AN EMPLOYER AND A UNION AS IS REQUIRED TO CONFER JURISDICTION UNDER
SEC. 301.  PP. 464-465. 

ASSOCIATION OF WESTINGHOUSE SALARIED EMPLOYEES V. WESTINGHOUSE ELECTRIC
CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

A SUIT BROUGHT BY PETITIONER AGAINST RESPONDENT UNDER SEC. 301 OF THE
LABOR MANAGEMENT RELATIONS ACT WAS DISMISSED ON THE MERITS BY THE
DISTRICT COURT.  107 F. SUPP. 692.  THE COURT OF APPEALS DIRECTED A
DISMISSAL FOR LACK OF JURISDICTION.  210 F.2D 623.  THIS COURT GRANTED
CERTIORARI.  347 U.S. 1010.  AFFIRMED, P. 461. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE BURTON AND MR. JUSTICE MINTON JOIN. 

RESPONDENT IS A PENNSYLVANIA CORPORATION ENGAGED IN THE MANUFACTURE
AND SALE OF ELECTRICAL EQUIPMENT IN INTERSTATE COMMERCE.  PETITIONER,
AN UNINCORPORATED LABOR ORGANIZATION AND THE COLLECTIVE BARGAINING
REPRESENTATIVE OF SOME 5,000 SALARIED EMPLOYEES AT TWO OF RESPONDENT'S
PLANTS, FILED THIS SUIT AGAINST RESPONDENT IN THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA TO ENFORCE
COLLECTIVE BARGAINING AGREEMENTS THEN IN EFFECT BETWEEN IT AND
RESPONDENT.  THE SUIT WAS BROUGHT UNDER SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT OF 1947, 61 STAT. 156, 29 U.S.C. SEC. 185, AND
THE FEDERAL DECLARATORY JUDGMENT ACT, 62 STAT. 964, AS AMENDED, 28
U.S.C. SECS. 2201, 2202. 

MORE SPECIFICALLY, PETITIONER ALLEGED THAT UNDER THE CONTRACTS
RESPONDENT WAS OBLIGATED TO PAY THE EMPLOYEES REPRESENTED BY PETITIONER
THEIR FULL SALARY DURING APRIL 1951, REGARDLESS OF WHETHER THEY MISSED
A DAY'S WORK, UNLESS THE ABSENCE WAS DUE TO "FURLOUGH" OR "LEAVE OF
ABSENCE," AND THAT RESPONDENT HAD VIOLATED THE CONTRACTS BY DEDUCTING
FROM THE PAY OF SOME 4,000 OF THOSE EMPLOYEES THEIR WAGES FOR APRIL 3,
WHEN THEY WERE ABSENT.  NO REASON WAS GIVEN FOR THEIR ABSENCE, BUT IT
WAS ALLEGED THAT THE REASON WAS NOT FURLOUGH OR LEAVE OF ABSENCE.  THE
EMPLOYEES WERE NOT NAMED AND WERE NOT MADE PARTIES TO THE SUIT. 
PETITIONER REQUESTED THE COURT TO INTERPRET THE CONTRACTS, DECLARE THE
RIGHTS OF THE PARTIES, COMPEL RESPONDENT TO MAKE AN ACCOUNTING (AND
NAME THE EMPLOYEES INVOLVED AND THE AMOUNTS OF UNPAID SALARIES), AND
ENTER A JUDGMENT AGAINST RESPONDENT AND IN FAVOR OF THE INDIVIDUAL
EMPLOYEES FOR THE UNPAID WAGES. 

RESPONDENT MOVED TO DISMISS THE COMPLAINT ON THREE GROUNDS:  THE
COURT LACKED JURISDICTION OVER THE SUBJECT MATTER, PETITIONER WAS THE
WRONG PARTY PLAINTIFF UNDER FED. RULES CIV.  PROC., 17(A), AND THE
COMPLAINT FAILED TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED. 
THE DISTRICT COURT HELD THAT IT HAD JURISDICTION OVER THE SUBJECT
MATTER AND THAT PETITIONER WAS A PROPER PLAINTIFF BUT DISMISSED THE
COMPLAINT FOR FAILURE TO STATE A CLAIM FOR RELIEF, WITHOUT PREJUDICE TO
PETITIONER'S RIGHT TO AMEND. IT HELD THAT, WITHOUT AFFIRMATIVE
AVERMENTS AS TO THE CAUSE OF THE ABSENCES FROM WORK, IT MUST BE ASSUMED
THE ABSENCES WERE VOLUNTARY, AND THAT THE BARGAINING CONTRACTS DID NOT
OBLIGATE RESPONDENT TO PAY WAGES DURING VOLUNTARY ABSENCES.  107 F.
SUPP. 692. 

THE COURT OF APPEALS FOR THE THIRD CIRCUIT, SITTING EN BANC, THREE
JUDGES DISSENTING, VACATED THE DISTRICT COURT'S ORDER DISMISSING THE
COMPLAINT ON THE MERITS, AND DIRECTED A DISMISSAL FOR LACK OF
JURISDICTION.  AFTER STATING THAT SEC. 301 "IS A GRANT OF FEDERAL
QUESTION JURISDICTION AND THUS CREATES A FEDERAL, SUBSTANTIVE RIGHT"
AND REVIEWING VARIOUS THEORIES EXPLAINING THE RELATIONSHIP BETWEEN
UNION, EMPLOYER AND EMPLOYEES UNDER A COLLECTIVE BARGAINING AGREEMENT,
THE COURT ADOPTED AN "ECLECTIC THEORY," BASED PRIMARILY UPON LANGUAGE
IN J.I.  CASE CO. V. LABOR BOARD, 321 U.S. 332.  THE BARGAINING
CONTRACT, SAID THE COURT, OBLIGATES THE EMPLOYER TO INCLUDE THE
CONTRACTS OF HIRE WITH EACH EMPLOYEE THE TERMS AND CONDITIONS WHICH HAD
BEEN SETTLED BETWEEN THE UNION AND THE EMPLOYER, BUT THE COLLECTIVE
CONTRACT ITSELF IS NOT A CONTRACT OF HIRE.  NOT UNTIL AN EMPLOYEE
ENTERS INTO AN INDIVIDUAL CONTRACT OF HIRE AND PERFORMS SERVICES DOES
THE EMPLOYER BECOME BOUND TO PAY THE PARTICULAR EMPLOYEE THE SPECIFIED
WAGES.  IT FOLLOWS, SAID THE COURT, THAT IF THERE WAS A BREACH IN THIS
CASE, IT WAS A BREACH OF THE EMPLOYMENT CONTRACTS WITH THE INDIVIDUAL
EMPLOYEES WHO WERE NOT PAID.  SECTION 301, ON THE OTHER HAND, GRANTS
JURISDICTION TO FEDERAL COURTS ONLY OVER CASES INVOLVING BREACHES OF
THE COLLECTIVE BARGAINING CONTRACT BETWEEN THE UNION AND THE EMPLOYER. 
THEREFORE, IT WAS CONCLUDED, THE DISTRICT COURT WAS WITHOUT
JURISDICTION OF THE SUIT.  210 F.2D 623. 

THE DISSENTING JUDGES AGREED THAT A FAILURE TO PAY WAGES MIGHT WELL
CONSTITUTE A BREACH OF THE INDIVIDUAL HIRING CONTRACTS AS A BASIS OF
COMMON-LAW SUITS BY THE EMPLOYEES.  BUT THEY DEEMED THE BREACH, IF ANY,
ALSO A BREACH OF THE COLLECTIVE BARGAINING CONTRACTS AND AS SUCH
COGNIZABLE IN THE FEDERAL COURT UNDER SEC. 301.  THEY CONCLUDED THAT
RULE 17(A) PERMITTED THE UNION TO SUE ALONE, WITHOUT JOINDER OF THE
EMPLOYEES, TO VINDICATE THE RIGHTS OF THESE EMPLOYEES AS A CLASS, SUCH
EMPLOYEES BEING BENEFICIARIES OF THE COLLECTIVE CONTRACTS.  THEY AGREED
WITH THE DISTRICT COURT, HOWEVER, THAT, ON THIS COMPLAINT, THE
BARGAINING CONTRACTS DID NOT MAKE RESPONDENT LIABLE, SINCE THE CAUSE OF
THE ABSENCES FROM WORK WAS NOT ALLEGED.  210 F.2D, AT 630. 

THE CASE WAS BROUGHT HERE FOR CONSTRUCTION OF A SECTION OF THE TAFT
HARTLEY ACT WHICH HAS PROVED A FERTILE SOURCE OF DIFFICULTY FOR THE
LOWER COURTS.  347 U.S. 1010. 

1. IN DEALING WITH AN ENACTMENT SUCH AS SEC. 301 OF THE LABOR
MANAGEMENT RELATIONS ACT, (FN1) IT IS NECESSARY FIRST TO ASCERTAIN ITS
JURISDICTIONAL SCOPE, MORE PARTICULARLY, WHETHER IT EXTENDS TO THE SUIT
AT HAND.  HERE, AS MAY NOT INFREQUENTLY BE THE CASE, THIS QUESTION
TURNS IN LARGE MEASURE ON WHAT SOURCES A FEDERAL COURT WOULD BE
REQUIRED TO DRAW UPON IN DETERMINING THE UNDERLYING SUBSTANTIVE RIGHTS
OF THE PARTIES - IN THIS CASE, IN DECIDING WHETHER THE UNION HAS THE
CONTRACT RIGHT WHICH IT ASSERTS.  IF CONGRESS HAS ITSELF DEFINED THE
LAW OR AUTHORIZED THE FEDERAL COURTS TO FASHION THE JUDICIAL RULES
GOVERNING THIS QUESTION, IT WOULD BE SELF-DEFEATING TO LIMIT THE SCOPE
OF THE POWER OF THE FEDERAL COURTS TO LESS THAN IS NECESSARY TO
ACCOMPLISH THIS CONGRESSIONAL AIM.  IF, ON THE OTHER HAND, CONGRESS
MERELY FURNISHED A FEDERAL FORUM FOR ENFORCING THE BODY OF CONTRACT LAW
WHICH THE STATES PROVIDE, A SERIOUS CONSTITUTIONAL PROBLEM WOULD LIE AT
THE THRESHOLD OF JURISDICTION.  MOREOVER, IF THE FUNCTION OF SEC. 301
IS MERELY THAT OF PROVIDING A FEDERAL FORUM FOR STATE LAW, THERE ARE
GOOD REASONS FOR FINDING THAT, DESPITE THE BROAD WORDING OF SEC. 301,
CONGRESS DID NOT INTEND TO CONFER JURISDICTION OVER THIS TYPE OF SUIT. 

IF THE SECTION IS GIVEN THE MEANING ITS LANGUAGE SPONTANEOUSLY
YIELDS, IT WOULD SEEM CLEAR THAT ALL IT DOES IS TO GIVE PROCEDURAL
DIRECTIONS TO THE FEDERAL COURTS.  "WHEN AN UNINCORPORATED ASSOCIATION
THAT HAPPENS TO BE A LABOR UNION APPEARS BEFORE YOU AS A LITIGANT IN A
CASE INVOLVING BREACH OF A COLLECTIVE AGREEMENT," CONGRESS IN EFFECT
TOLD THE DISTRICT JUDGES, "TREAT IT AS THOUGH IT WERE A NATURAL OR
CORPORATE LEGAL PERSON AND DO SO REGARDLESS OF THE AMOUNT IN
CONTROVERSY AND DO NOT REQUIRE DIVERSITY OF CITIZENSHIP." 

SINCE A STATUTE LIKE THE TAFT-HARTLEY ACT IS AN ORGANISM, SEC. 301
MUST BE PLACED IN THE CONTEXT OF THE LEGISLATION AS A WHOLE.  SO
VIEWED, HOWEVER, THE MEANING WHICH THE SECTION BY ITSELF AFFORDS IS NOT
AFFECTED.  WHILE SOME SECTIONS OF THE ACT IN CERTAIN INSTANCES MAY BE
RELEVANT IN ACTIONS FOR BREACH OF CONTRACT AND AS SUCH BINDING ALSO ON
THE STATES, (FN2) NO PROVISION SUGGESTS GENERAL APPLICATION OF DEFINED
OR THERETOFORE AVAILABLE FEDERAL SUBSTANTIVE LAW IN ACTIONS ARISING
UNDER SEC. 301. 

THIS EXAMINATION WOULD CONCLUDE THE CONSTRUCTION OF THE SECTION BY
ENGLISH COURTS, THAT IS, BY ANY COURT READING LEGISLATION AS IT IS
WRITTEN WITHOUT DRAWING ON PARLIAMENTARY DEBATES.  AND CONSIDERING THAT
THE CONSTRUCTION WE HAVE FOUND SEEMS PLAIN, THE SO-CALLED "PLAIN
MEANING RULE," ON WHICH CONSTRUCTION IS FROM TIME TO TIME RESTED ALSO
IN THIS COURT, LIKEWISE MAKES FURTHER INQUIRY NEEDLESS AND INDEED
IMPROPER.  BUT THAT RULE HAS NOT DOMINATED OUR DECISIONS.  THE CONTRARY
DOCTRINE HAS PREVAILED.  SEE BOSTON SAND & GRAVEL CO. V. UNITED STATES,
278 U.S. 41, 48; UNITED STATES V. DICKERSON, 310 U.S. 554, 561.  AND SO
WE PROCEED TO AN EXAMINATION OF THE LEGISLATIVE HISTORY TO SEE WHETHER
THAT RAISES SUCH DOUBTS THAT THE SEARCH FOR MEANING SHOULD NOT BE
LIMITED TO THE STATUTE ITSELF. 

CONGRESSIONAL CONCERN WITH OBSTACLES SURROUNDING UNION LITIGATION
BEGAN TO MANIFEST ITSELF AS EARLY AS 1943.  IN THE FIRST SESSION OF THE
78TH CONGRESS AND THEREAFTER NUMEROUS BILLS WERE INTRODUCED PROPOSING
VARIOUS SOLUTIONS, INCLUDING FEDERAL INCORPORATION, (FN3) DENIAL OR
RIGHTS UNDER THE WAGNER ACT TO CONTRACT VIOLATORS, (FN4) CREATION OF A
CAUSE OF ACTION FOR STRIKES AND OTHER ACTS IN VIOLATION OF THE
COLLECTIVE BARGAINING CONTRACT, (FN5) AND GRANTS OF FEDERAL
JURISDICTION SIMILAR TO THE PRESENT SEC. 301.  (FN6)  ONLY ONE OF
THESE, THE SO-CALLED "CASE BILL," WAS ACTED UPON.  THIS BILL, WHICH
PASSED BOTH HOUSES IN 1946, ONLY TO FAIL THROUGH PRESIDENT TRUMAN'S
VETO, INCLUDED AS SEC. 10 A PROVISION SOMEWHAT SIMILAR TO THE PRESENT

"SEC. 10.  BINDING EFFECT OF COLLECTIVE-BARGAINING CONTRACTS.  - ALL
COLLECTIVE-BARGAINING CONTRACTS SHALL BE MUTUALLY AND EQUALLY BINDING
AND ENFORCEABLE AGAINST EACH OF THE PARTIES THERETO, ANY OTHER LAW TO
THE CONTRARY NOTWITHSTANDING.  IN THE EVENT OF A BREACH OF ANY SUCH
CONTRACT OR OF ANY AGREEMENT CONTAINED IN SUCH CONTRACT BY EITHER PARTY
THERETO, THEN, IN ADDITION TO ANY OTHER REMEDY OR REMEDIES EXISTING, A
SUIT FOR DAMAGES FOR SUCH BREACH MAY BE MAINTAINED BY THE OTHER PARTY
OR PARTIES IN ANY STATE OR UNITED STATES DISTRICT COURT HAVING
JURISDICTION OF THE PARTIES."  H.R. 4908, 79TH CONG., 2D SESS. 

DISCUSSION IN THAT CHAMBER WAS NOT ENLIGHTENING, DUE PERHAPS TO THE
FACT THAT THE CASE BILL HAD BEEN SUBSTITUTED ON THE HOUSE FLOOR FOR THE
TEXT OF A VERY DIFFERENT BILL AND THUS HAD NEVER BEEN CONSIDERED IN
COMMITTEE.  SECTION 10 WAS PRESENTED AS NECESSARY TO ACHIEVEMENT OF
"MUTUALITY" OF OBLIGATION BETWEEN EMPLOYER AND UNION, BUT THERE WAS NO
GUIDING EXPLANATION OF THE NATURE OF THE OBSTACLE TO MUTUALITY.  THE
LANGUAGE OF THE SECTION, HOWEVER, GAVE SUPPORT TO THE VIEW THAT A
FEDERAL CAUSE OF ACTION WAS TO BE CREATED. 

AFTER THE BILL PASSED THE HOUSE, HEARINGS WERE HELD ON IT BY THE
SENATE COMMITTEE ON EDUCATION AND LABOR, DURING WHICH SENATOR TAFT
POINTED OUT TO REPRESENTATIVE CASE THAT, IN HIS VIEW, THE SECTION AS
WRITTEN FAILED TO DEAL WITH THE REAL PROBLEM, WHICH WAS NOT SUBSTANTIVE
ENFORCEABILITY BUT PROCEDURAL DIFFICULTY IN OBTAINING JURISDICTION OVER
UNINCORPORATED LABOR ORGANIZATIONS.  MR. CASE AGREED THAT THE SECTION
SHOULD BE REDRAFTED TO REACH THAT PROBLEM.  (FN7)  THE COMMITTEE
REPORTED THE BILL WITHOUT SEC. 10, ASSERTING THAT AS IT PASSED THE
HOUSE THE SECTION WAS "BASED UPON A MISAPPREHENSION AS TO THE LEGAL
RESPONSIBILITY OF THE PARTIES UNDER SUCH CONTRACTS," THAT SUCH
CONTRACTS "ARE AT PRESENT LEGALLY ENFORCEABLE IN THE COURTS," AND THAT
TO PROMOTE LITIGATION CONCERNING THEM WOULD BE UNDESIRABLE.  (FN8)
SENATORS BALL, TAFT AND H. ALEXANDER SMITH FILED A MINORITY REPORT
CONCEDING THAT COLLECTIVE AGREEMENTS "THEORETICALLY ARE LEGALLY
ENFORCEABLE CONTRACTS" BUT CONTENDING THAT ACTION WAS NECESSARY TO
OVERCOME PRACTICAL OBSTACLES TO ENFORCEMENT ARISING FROM THE STATUS OF
UNIONS AS UNINCORPORATED ASSOCIATIONS.  THEY PROPOSED A DIFFERENTLY
WORDED SECTION LATER ADOPTED IN SUBSTANCE BY BOTH HOUSES, WHICH CLOSELY
APPROXIMATED THE WORDING OF THE PRESENT SEC. 301.  (FN9) 

IN INTRODUCING THIS PROPOSED AMENDMENT, SENATOR TAFT STATED: 

"  ...  ALL WE PROVIDE IN THE AMENDMENT IS THAT VOLUNTARY
ASSOCIATIONS SHALL IN EFFECT BE SUABLE AS IF THEY WERE CORPORATIONS,
AND SUABLE IN THE FEDERAL COURTS IF THE CONTRACT INVOLVES INTERSTATE
COMMERCE AND THEREFORE INVOLVES A FEDERAL QUESTION  ...  ."  92 CONG.
REC. 5705. 

THIS RATHER CASUAL NON SEQUITUR SEEMS TO SUGGEST RELIANCE NOT ON THE
EXISTENCE OR ESTABLISHMENT OF ANY SUBSTANTIVE FEDERAL LAW GOVERNING
COLLECTIVE BARGAINING CONTRACTS TO CREATE A "FEDERAL QUESTION" IN THE
TECHNICAL SENSE RELEVANT TO JURISDICTION OF DISTRICT COURTS, BUT ON THE
MERE POWER OF CONGRESS TO ENACT SUCH LAW.  (FN10)  WHILE SOME
STATEMENTS ON THE SENATE FLOOR BY OPPONENTS OF THE AMENDMENT ARE
AMBIGUOUS, (FN11) ALL AUTHORITATIVE MATERIALS INDICATE THE STRICTLY
PROCEDURAL AIM OF THE SECTION.  THE AIM WAS TO OPEN THE FEDERAL COURTS
TO SUITS ON AGREEMENTS SOLELY BECAUSE THEY WERE BETWEEN LABOR
ORGANIZATIONS AND EMPLOYERS WITHOUT PROVIDING FEDERAL LAW FOR SUCH
SUITS. 

IN THE FIRST SESSION OF THE 80TH CONGRESS, BILLS INTRODUCED
INDEPENDENTLY IN BOTH HOUSES CONTAINED SECTIONS STRIKINGLY SIMILAR TO
THE FINAL VERSION OF SEC. 10 OF THE CASE BILL.  (FN12)  DISCUSSION WAS
MORE ANALYTICAL.  WHILE GENERALITIES IN PRAISE OF MUTUALITY AND
ENFORCEABILITY REAPPEAR, IT WAS EVIDENT THAT THE SPECIFIC DESIRE WAS TO
REMOVE PROCEDURAL OBSTACLES TO SUIT BY AND AGAINST THE UNION.  SENATOR
PEPPER AND SECRETARY OF LABOR SCHWELLENBACH DEEMED THE MEASURE ONE "TO
PROVIDE A FEDERAL FORUM" FOR SUITS IN CONTRACTS BASED ON LOCAL LAW. 
(FN13)  IT WAS ASSUMED THAT THIS WOULD RESULT IN MUTUAL ENFORCEABILITY,
WHICH IN TURN WOULD FURTHER LABOR HARMONY.  THE TESTIMONY OF SECRETARY
SCHWELLENBACH (WHO TOGETHER WITH THE LABOR UNIONS OPPOSED SEC. 301),
MINORITY REPORTS IN BOTH HOUSES, (FN14) AND OPPOSITION STATEMENTS ON
THE FLOOR OF THE SENATE (FN15) DIRECTED ATTENTION TO THE FACT THAT
STATE LAW WOULD GOVERN ACTIONS UNDER SEC. 301 AND THAT THIS, DIVERSITY
JURISDICTION APART, WOULD RAISE A SUBSTANTIAL CONSTITUTIONAL QUESTION. 
NO DENIAL OF THE FIRST OF THESE ASSERTIONS APPEARS.  SENATOR TAFT DID
NOT JUSTIFY SEC. 301 AS DEPENDENT ON FEDERAL SUBSTANTIVE LAW GOVERNING
INTERPRETATION OF COLLECTIVE BARGAINING CONTRACTS: 

"MR. PRESIDENT, TITLE III OF THE BILL  ...  MAKES UNIONS SUABLE IN
THE FEDERAL COURTS FOR VIOLATION OF CONTRACT.  AS A MATTER OF LAW
UNIONS, OF COURSE, ARE LIABLE IN THEORY ON THEIR CONTRACTS TODAY, BUT
AS A PRACTICAL MATTER IT IS DIFFICULT TO SUE THEM.  THEY ARE NOT
INCORPORATED; THEY HAVE MANY MEMBERS; IN SOME STATES ALL THE MEMBERS
MUST BE SERVED; IT IS DIFFICULT TO KNOW WHO IS TO BE SERVED.  BUT THE
PENDING BILL PROVIDES THEY CAN BE SUED AS IF THEY WERE CORPORATIONS AND
IF A JUDGMENT IS FOUND AGAINST THE LABOR ORGANIZATION, EVEN THOUGH IT
IS AN UNINCORPORATED ASSOCIATION, THE LIABILITY IS ON THE LABOR UNION
AND THE LABOR-UNION FUNDS, AND IT IS NOT ON THE INDIVIDUAL MEMBERS OF
THE UNION, WHERE IT HAS FALLEN IN SOME FAMOUS CASES TO THE GREAT
FINANCIAL DISTRESS OF THE INDIVIDUAL MEMBERS OF LABOR UNIONS."  93
CONG. REC. 3839. 

LEGISLATIVE HISTORY, IN ITS RELEVANT ASPECTS, THUS REINFORCES THE
MEANING CONVEYED BY THE STATUTE ITSELF AS A MERE PROCEDURAL PROVISION. 

2.  FROM THIS CONCLUSION INEVITABLY EMERGE QUESTIONS REGARDING THE
CONSTITUTIONALITY OF A GRANT OF JURISDICTION TO FEDERAL COURTS OVER A
CONTRACT GOVERNED ENTIRELY BY STATE SUBSTANTIVE LAW, A JURISDICTION NOT
BASED ON DIVERSITY OF CITIZENSHIP YET ONE IN WHICH A FEDERAL COURT
WOULD, AS IN DIVERSITY CASES, ADMINISTER THE LAW OF THE STATE IN WHICH
IT SITS.  THE SCOPE OF ALLOWABLE FEDERAL JUDICIAL POWER THAT THIS GRANT
MUST SATISFY IS CONSTITUTIONALLY DEFINED AS "CASES, IN LAW AND EQUITY,
ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES, AND
TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THEIR AUTHORITY."  ART.
III, SEC. 2. 

ALMOST WITHOUT EXCEPTION, DECISIONS UNDER THE GENERAL STATUTORY
GRANTS OF JURISDICTION STRIKINGLY SIMILAR TO THE CONSTITUTIONAL
WORDING, HAVE TESTED JURISDICTION IN TERMS OF THE PRESENCE, AS AN
INTEGRAL PART OF PLAINTIFF'S CAUSE OF ACTION, OF AN ISSUE CALLING FOR
INTERPRETATION OR APPLICATION OF FEDERAL LAW.  (FN16)  ALTHOUGH IT HAS
SOMETIMES BEEN SUGGESTED THAT THE "CAUSE OF ACTION" MUST DERIVE FROM
FEDERAL LAW, (FN17) IT HAS BEEN FOUND SUFFICIENT THAT SOME ASPECT OF
FEDERAL LAW IS ESSENTIAL TO PLAINTIFF'S SUCCESS.  (FN18)  THE
LITIGATION-PROVOKING PROBLEM HAS BEEN THE DEGREE TO WHICH FEDERAL LAW
MUST BE IN THE FOREFRONT OF THE CASE AND NOT BE REMOTE, COLLATERAL OR
PERIPHERAL. 

IT HAS GENERALLY BEEN ASSUMED THAT THE FULL CONSTITUTIONAL POWER HAS
NOT BEEN EXHAUSTED BY THESE GENERAL JURISDICTIONAL STATUTES.  (FN19)
AND IN TWO LINES OF DECISION, UNDER SPECIAL JURISDICTIONAL GRANTS FOR
ACTIONS BY OR AGAINST FEDERALLY INCORPORATED ORGANIZATIONS (FN20) AND
TRUSTEES IN BANKRUPTCY, (FN21) FEDERAL JURISDICTION HAS BEEN SUSTAINED
DESPITE THE FACT THAT THE TRADITIONAL "FEDERAL QUESTION" THEORY OF
JURISDICTION HAS CONSIDERABLE LATITUDE IF SATISFIED BY THE CONTINGENT
LIKELIHOOD OF PRESENTATION OF A FEDERAL QUESTION.  ANALYSIS OF THESE
CASES IN TERMS OF THAT THEORY REVEALS ANALOGIES TO SEC. 301.  FOR
FEDERAL LAW IS, IN CERTAIN RESPECTS, IN THE BACKGROUND OF ANY ACTION ON
A COLLECTIVE BARGAINING AGREEMENT AFFECTING COMMERCE:  SEC. 301 VESTS
RIGHTS AND LIABILITIES, WHICH UNDER STATE LAW ARE DISTRIBUTED AMONG THE
UNION MEMBERS, IN A LEGAL "ENTITY" RECOGNIZED BY FEDERAL LAW FOR
PURPOSES OF ACTIONS ON COLLECTIVE BARGAINING AGREEMENTS IN THE FEDERAL
COURTS; IN SUCH ACTIONS, THE VALIDITY OF THE AGREEMENT MAY BE
CHALLENGED ON FEDERAL GROUNDS - THAT THE LABOR ORGANIZATION NEGOTIATING
IT WAS NOT THE REPRESENTATIVE OF THE EMPLOYEES INVOLVED, OR THAT
SUBSEQUENT CHANGES IN THE REPRESENTATIVE STATUS OF THE UNION HAVE
AFFECTED THE CONTINUED VALIDITY OF THE AGREEMENT.  (FN22) 

FEDERAL JURISDICTION BASED SOLELY ON THE FACT OF FEDERAL
INCORPORATION HAS, HOWEVER, BEEN SEVERELY RESTRICTED BY CONGRESS,
(FN23) AND THIS COURT HAS CAST DOUBT ON ITS CONTINUED VITALITY.  (FN24)
WHETHER THE PRECEDENT MIGHT BE EXTENDED TO MEET THE SUBSTANTIAL
DIFFICULTIES ENCOUNTERED UNDER SEC. 301 WOULD POSE A SERIOUS
CONSTITUTIONAL PROBLEM. 

RECOGNITION OF JURISDICTION IN THE BANKRUPTCY CASES, DESPITE THE FACT
THAT THE ACTIONS MIGHT BE GOVERNED SOLELY BY STATE LAW, DRAWS ON THE
REACH OF THE BANKRUPTCY POWER, WHICH MAY REASONABLY BE DEEMED TO SWEEP
WITHIN ITS SCOPE INTERESTS SUFFICIENTLY RELATED TO THE MAIN PURPOSE OF
BANKRUPTCY TO CALL FOR ORGANIC TREATMENT.  TO ATTEMPT TO REASON FROM
THESE CASES TO SEC. 301 RAISES THE EQUALLY IF NOT MORE SERIOUS QUESTION
OF WHAT, IF ANYTHING, IS ENCOMPASSED IN JURISDICTION OVER CASES
"ARISING UNDER THE LAWS OF THE UNITED STATES" BEYOND THAT WHICH
TRADITIONAL "FEDERAL QUESTION" THEORY RECOGNIZES.  (FN25) 

3.  IN AN EFFORT TO AVOID THESE PROBLEMS, LOWER FEDERAL COURTS HAVE
GIVEN DISCORDANT ANSWERS.  MOST HAVE ASCRIBED TO SEC. 301 THE CREATION
OF "SUBSTANTIVE FEDERAL RIGHTS" OR THE SUBJECTION OF COLLECTIVE
AGREEMENTS TO A BODY OF FEDERAL COMMON LAW.  (FN26)  WE MUST, OF
COURSE, DEFER TO THE STRONG PRESUMPTION - EVEN AS TO SUCH TECHNICAL
MATTERS AS FEDERAL JURISDICTION - THAT CONGRESS LEGISLATED IN
ACCORDANCE WITH THE CONSTITUTION.  LEGISLATION MUST, IF POSSIBLE, BE
GIVEN A MEANING THAT WILL ENABLE IT TO SURVIVE.  THIS RULE OF
CONSTITUTIONAL ADJUDICATION IS NORMALLY INVOKED TO NARROW WHAT WOULD
OTHERWISE BE THE NATURAL BUT CONSTITUTIONALLY DUBIOUS SCOPE OF THE
LANGUAGE.  E.G., UNITED STATES V. DELAWARE & HUDSON CO., 213 U.S. 366;
UNITED STATES V. RUMELY, 345 U.S. 41.  HERE THE ENDEAVOR OF LOWER
COURTS HAS RESULTED IN ADDING TO THE SECTION SUBSTANTIVE CONGRESSIONAL
REGULATION EVEN THOUGH CONGRESS SAW FIT NOT TO EXERCISE SUCH POWER NOR
TO GIVE THE COURTS ANY CONCRETE GUIDANCE FOR DEFINING SUCH REGULATION. 

TO BE SURE, THE FULL SCOPE OF A SUBSTANTIVE REGULATION IS FREQUENTLY
IN DISPUTE AND MUST AWAIT AUTHORITATIVE DETERMINATION BY COURTS. 
CONGRESS DECLARES ITS PURPOSE IMPERFECTLY OR PARTIALLY AND THE
JUDICIARY ROUNDS IT OUT COMPATIBLY.  BUT IN THIS CASE WE START WITH A
PROVISION WHICH IS WHOLLY JURISDICTIONAL AND AS SUCH BRISTLES WITH
CONSTITUTIONAL PROBLEMS UNDER ARTICLE III.  TO AVOID THEM,
INTERPOLATION OF SUBSTANTIVE REGULATION HAS BEEN PROPOSED.  FROM WHAT
MATERIALS ARE WE TO DRAW A DETERMINATION THAT SEC. 301 IS SOMETHING
OTHER THAN WHAT IT CLEARLY APPEARS TO BE?  THE PROBLEM IS PARTICULARLY
VEXING IN VIEW OF THE VERY DIFFICULT CHOICE OF POLICY THAT THE
ALTERNATIVES OF STATE OR FEDERAL LAW PRESENT AND THE UNCERTAINTY AS TO
THE CONSEQUENCES OF THE CHOICE.  IS THE COURT JUSTIFIED IN CREATING ALL
THESE DIFFICULT PROBLEMS OF CHOICE IN MATTERS OF DELICATE LEGISLATIVE
POLICY WITHOUT ANY DIRECTION FROM CONGRESS AND MERELY FOR THE SAKE OF
GIVING EFFECT TO A PROVISION WHICH SEEMS TO DEAL WITH A DIFFERENT
SUBJECT?  HOW FAR ARE COURTS TO GO IN RESHAPING OR TRANSFORMING THE
OBVIOUS DESIGN OF CONGRESS IN ORDER TO ACHIEVE VALIDITY FOR SOMETHING
CONGRESS HAS NOT FASHIONED?  IN THE WORDS OF MR. JUSTICE CARDOZO,
SPEAKING FOR THE WHOLE COURT:  "WE THINK THE LIGHT IS SO STRONG AS TO
FLOOD WHATEVER PLACES IN THE STATUTE MIGHT OTHERWISE BE DARK.  COURTS
HAVE STRIVEN MIGHTILY AT TIMES TO CANALIZE CONSTRUCTION ALONG THE PATH
OF SAFETY  ...  .   WHEN A STATUTE IS REASONABLY SUSCEPTIBLE OF TWO
INTERPRETATIONS, THEY HAVE PREFERRED THE MEANING THAT PRESERVES TO THE
MEANING THAT DESTROYS  ...  .  'BUT AVOIDANCE OF A DIFFICULTY WILL NOT
BE PRESSED TO THE POINT OF DISINGENUOUS EVASION.'  ... 'HERE THE
INTENTION OF THE CONGRESS IS REVEALED TOO DISTINCTLY TO PERMIT US TO
IGNORE IT BECAUSE OF MERE MISGIVINGS AS TO POWER.'"  HOPKINS FEDERAL
SAVINGS & LOAN ASSN. V. CLEARY, 296 U.S. 315, 334-335. 

BUT ASSUMING THAT WE WOULD BE JUSTIFIED IN PROCEEDING FURTHER, THE
SUGGESTION THAT THE SECTION PERMITS THE FEDERAL COURTS TO WORK OUT
WITHOUT MORE A FEDERAL CODE GOVERNING COLLECTIVE BARGAINING CONTRACTS
DOES NOT FREE US FROM DIFFICULTIES. 

SUCH A TASK WOULD INVOLVE THE FEDERAL COURTS IN MULTIPLYING PROBLEMS
WHICH COULD NOT BE SOLVED WITHOUT DISCLOSING THAT CONGRESS NEVER
INTENDED TO RAISE THEM.  APPLICATION OF A BODY OF FEDERAL COMMON LAW
WOULD INEVITABLY LEAD TO ONE OF THE FOLLOWING INCONGRUITIES: (1)
CONFLICT IN FEDERAL AND STATE COURT INTERPRETATIONS OF COLLECTIVE
BARGAINING AGREEMENTS; (2) DISPLACEMENT OF STATE LAW BY FEDERAL LAW IN
STATE COURTS, NOT ONLY IN ACTIONS BETWEEN UNION AND EMPLOYER BUT IN ALL
ACTIONS REGARDING COLLECTIVE BARGAINING AGREEMENTS; OR (3) EXCLUSION OF
STATE COURT JURISDICTION OVER THESE MATTERS.  IT WOULD ALSO BE
NECESSARY TO WORK OUT A FEDERAL CODE GOVERNING THE INTERRELATIONSHIP
BETWEEN THE EMPLOYEE'S RIGHTS AND WHATEVER RIGHTS WERE FOUND TO EXIST
IN THE UNION.  MOREOVER, IF THE GENERAL UNFOLDING OF SUCH BROAD
APPLICATION OF FEDERAL LAW WERE DESIGNED, THE PROCEDURAL OBJECTIVES OF
CONGRESS WOULD HAVE BEEN ACCOMPLISHED WITHOUT THE NEED OF ANY SPECIAL
JURISDICTIONAL STATUTE.  FEDERAL RIGHTS WOULD BE IN ISSUE, AND, UNDER
28 U.S.C. SEC. 1331 AND FEDERAL RULE 17(B), THE SUIT COULD BE BROUGHT
IN ANY DISTRICT COURT BY OR AGAINST THE UNION AS AN ENTITY.  THE ONLY
EFFECT OF SEC. 301 WOULD THEN BE TO DISPENSE WITH THE REQUIREMENT OF
AMOUNT IN CONTROVERSY AND TO ADOPT CERTAIN OTHER MINOR PROCEDURAL
RULES. 

IT HAS BEEN SUGGESTED THAT A MORE MODEST ROLE MIGHT BE ASSIGNED TO
FEDERAL LAW.  THE SUGGESTION IS THAT, IN VIEW OF THE DIFFICULTIES WHICH
ORIGINALLY PLAGUED THE COURTS CALLED UPON TO IDENTIFY THE NATURE OF THE
LEGAL RELATIONS CREATED BY A COLLECTIVE CONTRACT (FN27) AND IN VIEW OF
THE GENERALIZED STATEMENTS IN THE LEGISLATIVE HISTORY OF SEC. 301 IN
FAVOR OF ENFORCEABILITY OF COLLECTIVE AGREEMENTS, SEC. 301 MAY BE
VIEWED AS A CONGRESSIONAL AUTHORIZATION TO THE FEDERAL COURTS TO WORK
OUT A CONCEPT OF THE NATURE OF THE COLLECTIVE BARGAINING CONTRACT,
LEAVING DETAILED QUESTIONS OF INTERPRETATION TO STATE LAW. 

THIS IS AN EXCESSIVELY SOPHISTICATED ATTRIBUTION TO CONGRESS. 
EVIDENCE IS WHOLLY WANTING THAT CONGRESS WAS AWARE OF THE DIVERSE VIEWS
TAKEN OF THE COLLECTIVE BARGAINING AGREEMENT OR, IN ANY EVENT, THAT
THEY WERE INTERFERING WITH ANY FEDERAL OBJECTIVE.  MOREOVER, ONCE THE
RIGHT OF THE UNION TO ENTER INTO CONTRACTS IS GRANTED BY STATE LAW,
THESE PROBLEMS ARE REALLY QUESTIONS OF INTERPRETATION OF THE LANGUAGE
OF AMBIGUOUSLY DRAWN CONTRACTS.  IF FEDERAL LAW UNDERTOOK TO RESOLVE
THESE AMBIGUITIES, IT WOULD BECOME INEXTRICABLY INVOLVED IN QUESTIONS
OF INTERPRETATION OF THE LANGUAGE OF CONTRACTS.  DISCREPANCIES BETWEEN
FEDERAL AND STATE COURT TREATMENT, WHILE NOT SO INEVITABLE AS WHERE
FEDERAL LAW UNDERTOOK THE ENTIRE TASK OF INTERPRETATION, WOULD RESULT. 
AND ANY DIFFERENCE BETWEEN STATE AND FEDERAL THEORIES OF ENFORCEABILITY
WOULD PRESENT OPPORTUNITIES FOR FORUM-SHOPPING. 

TO TURN SEC. 301 INTO AN AGENCY FOR WORKING OUT A VIABLE THEORY OF
THE NATURE OF A COLLECTIVE BARGAINING AGREEMENT SMACKS OF UNREALITY. 
NOR DOES IT SEEM REASONABLE TO VIEW THAT SECTION AS A DELIVERY INTO THE
DISCRETIONARY HANDS OF THE FEDERAL JUDICIARY, FINALLY OF THIS COURT, OF
SUCH AN IMPORTANT, COMPLICATED AND SUBTLE FIELD.  THESE DIFFICULTIES
MAY BE ILLUSTRATED BY A DISCUSSION OF THE HOLDING OF THE COURT OF
APPEALS IN THE PRESENT CASE.  ITS "ECLECTIC THEORY" OF THE NATURE OF A
COLLECTIVE AGREEMENT HAS NO SUPPORT IN THE STATUTE, AND, ON THE
CONTRARY, IT IS IN SOME WAYS REPUGNANT TO IT.  (1) FOR EXAMPLE, THE
NATIONAL LABOR RELATIONS ACT SEEKS IN SEC. 9(A) TO PRESERVE THE "RIGHT"
OF AN INDIVIDUAL EMPLOYEE TO TAKE UP GRIEVANCES WITH HIS EMPLOYER; BUT
NO ONE HAS EVER SUGGESTED THAT THESE GRIEVANCES MAY NOT BE TAKEN UP BY
THE UNION.  (2) IT EXCLUDES FROM THE COURT STAGE THE PARTY THAT IS
RECOGNIZED IN THE REQUIRED PRELIMINARY STAGES.  THE UNION THAT IS
EMPOWERED TO NEGOTIATE AND SETTLE THE CONTROVERSY BEFORE SUIT IS BARRED
FROM BRINGING SUIT WHEN SETTLEMENT IS NOT REACHED.  (3) THIS WOULD TEND
TO IMPAIR THE UNION'S POWER TO NEGOTIATE A MUTUALLY SATISFACTORY
SETTLEMENT.  AS A PRACTICAL MATTER, THE EMPLOYEES EXPECT THEIR UNION
NOT JUST TO SECURE A COLLECTIVE AGREEMENT BUT MORE PARTICULARLY TO
PROCURE FOR THE INDIVIDUAL EMPLOYEES THE BENEFITS PROMISED.  IF THE
UNION CAN SECURE ONLY THE PROMISE AND IS IMPOTENT TO PROCURE FOR THE
INDIVIDUAL EMPLOYEES THE PROMISED BENEFITS, THEN IT IS BOUND TO LOSE
THEIR SUPPORT.  AND IF THE UNION CANNOT ULTIMATELY RESORT TO SUIT, IT
IS ENCOURAGED TO RESORT TO STRIKE ACTION. 

PERHAPS THE PRIME EXAMPLE OF AN INDIVIDUAL CAUSE OF ACTION, AS
DISTINGUISHED FROM A UNION CAUSE, UNDER THE COURT OF APPEALS'"ECLECTIC
THEORY," WOULD BE THE CASE OF THE DISCHARGE OF A SINGLE EMPLOYEE.  TO
MAKE THE SITUATION VIVID, ASSUME THAT THERE IS NO DISPUTE WHATEVER AS
TO THE PROPRIETY OF THE ALLEGED GROUND FOR THE DISCHARGE AND THAT THE
ONLY MATTER IN CONTROVERSY IS THE QUESTION OF FACT WHETHER THE EMPLOYEE
DID OR DID NOT COMMIT THE OFFENSE ALLEGED.  YET PRECISELY SUCH
INCIDENTS OFTEN PULL THE TRIGGER OF WORK STOPPAGES.  WHEN STOPPAGES DO
OCCUR, THEY MOST FREQUENTLY INVOLVE A GRIEVANCE WITH RESPECT TO ONE
EMPLOYEE OR A FEW EMPLOYEES MUCH SMALLER IN NUMBER THAN THOSE INVOLVED
IN THE STOPPAGE.  THAT SUCH STOPPAGES ARE WILDCAT AND OFFICIALLY
UNAUTHORIZED MERELY EMPHASIZES THE FACT OF GROUP INTEREST IN THE
INCIDENT.  IT IS A MATTER OF INDUSTRIAL HISTORY THAT STOPPAGES OF WORK
BECAUSE OF DISCIPLINARY PENALTIES AGAINST INDIVIDUALS, OR BECAUSE OF
FAILURE TO PAY THE RATES CLAIMED, OR BECAUSE OF THE PROMOTION OR LAYOFF
OF ONE EMPLOYEE RATHER THAN ANOTHER, OR FOR SIMILAR REASONS, HAVE BEEN
FREQUENT OCCURRENCES.  A LEGAL RULE DENYING STANDING TO THE UNION TO
PROTECT INDIVIDUAL RIGHTS UNDER WHAT IS TO BE DEEMED A CONTRACT WITH
INDIVIDUALS WOULD ENCOURAGE SUCH INDISCIPLINE.  AND THIS IS TRUE EVEN
THOUGH THE ULTIMATELY DESIRABLE SOCIAL POLICY IS TO MAKE IT A MATTER OF
INDUSTRIAL HABIT TO RELY FOR A REMEDY FOR SUCH GRIEVANCES NOT ON
STOPPAGE OF WORK OR ON LAWSUITS BUT ON THE GRIEVANCE PROCEDURE WITHIN
AN INDUSTRY.  THERE IS IN FACT A STRONG GROUP INTEREST IN PROCURING FOR
THE EMPLOYEE THE BENEFIT PROMISED AS WELL AS THE PROMISE IN THE
COLLECTIVE AGREEMENT.  IF THE UNION CAN REPRESENT AND PRESS THAT GROUP
INTEREST, THE STOPPAGE MAY BE AVOIDED; IF IT CANNOT, THE GROUP RESORTS
TO WILDCAT SELF-HELP.  THE HOLDING BELOW CANNOT ELIMINATE THIS GROUP
INTEREST; IT CAN STIMULATE ITS MANIFESTATION BY WAY OF A STRIKE. 

IS THE LINE WHICH THE COURT OF APPEALS HAS DRAWN THE RESULT OF
INTERPRETATION OF THE PARTICULAR CONTRACT OR OF A RULE OF LAW BEYOND
THE POWER OF THE PARTIES TO ALTER?  IF IT IS THE FORMER, THEN THE LINE
CAN BE OBLITERATED BY EXPRESS LANGUAGE IN THE CONTRACT; AND THE UNIONS
CAN BE TRUSTED TO FIND SUITABLE LANGUAGE.  THEY WERE QUICK TO SECURE
AMENDMENT TO THEIR CONSTITUTIONS OR STATUTES IN ORDER TO AVOID THE
DECISION OF THIS COURT IN ELGIN, JOLIET & EASTERN R. CO. V. BURLEY, 325
U.S. 711, 327 U.S. 661.  (FN28)  IF IT IS THE LATTER, WHAT IS THE BASIS
FOR THE RULE?  IT IS NOT TO BE FOUND IN FEAR THAT THE EMPLOYEE MAY NOT
BE ABLE TO SUE.  TO HOLD THAT THE UNION MAY SUE, IT IS NOT NECESSARY TO
HOLD THAT THE EMPLOYEE MAY NOT SUE IN ANY FORUM, AND VICE VERSA.  AT
LEAST WHEN THE UNION AND THE EMPLOYEE ARE IN AGREEMENT, THERE IS NO
REASON WHY EITHER OR BOTH SHOULD NOT BE PERMITTED TO SUE.  SUCH IS THE
SITUATION UNDER SEC. 9(A) OF THE NATIONAL LABOR RELATIONS ACT WITH
RESPECT TO THE ADJUSTMENT OF GRIEVANCES WITHOUT SUIT.  WHEN THE
EMPLOYEE AND THE UNION ARE IN DISAGREEMENT, THE QUESTION IS NOT WHICH
MAY SUE, BUT RATHER THE EXTENT TO WHICH THE ONE MAY CONCLUDE THE
OTHER. 

SPECULATIVE REFLECTION REVEALS OTHER POSSIBLE SUBSTANTIVE ADDITIONS
WHICH MIGHT BE MADE TO SEC. 301.  WHEN TESTED AGAINST THE LIMITATIONS
WHICH MUST RESTRICT JUDICIAL ELABORATION OF LEGISLATION, HOWEVER, ALL
MERITORIOUS POSSIBILITIES ARE EITHER TOO SPECIALIZED TO REACH THIS CASE
OR TOO INSIGNIFICANT AN ADDITION TO DISSIPATE THE CONSTITUTIONAL DOUBTS
WHICH HAVE REVEALED THEMSELVES. 

4.  IN THE PRESENT CASE, HOWEVER, SERIOUS CONSTITUTIONAL PROBLEMS MAY
BE AVOIDED, AND INDEED MUST BE, THROUGH THE ORTHODOX PROCESS OF
LIMITING THE SCOPE OF DOUBTFUL LEGISLATION.  WE CANNOT ADOPT THE
REASONING OF THE COURT OF APPEALS IN REACHING OUR CONCLUSION THAT SEC.
301 DOES NOT EXTEND JURISDICTION TO THE PRESENT CASE.  THAT COURT
RELIED UPON AN ASSUMED FEDERAL CONCEPT OF THE NATURE OF A COLLECTIVE
BARGAINING AGREEMENT WHICH IS NOT JUSTIFIED EITHER IN TERMS OF
DISCOVERABLE CONGRESSIONAL INTENT OR CONSIDERATIONS RELEVANT TO THE
FUNCTION OF THE COLLECTIVE AGREEMENT IN THE FIELD OF LABOR RELATIONS. 
THE SAME OBJECTIONS DO NOT, HOWEVER, PREVAIL AGAINST THE VIEW THAT
WHETHER OR NOT THE APPLICABLE SUBSTANTIVE LAW - IN OUR VIEW STATE LAW -
WOULD RECOGNIZE A RIGHT IN THE UNION, CONGRESS DID NOT INTEND TO BURDEN
THE FEDERAL COURTS WITH SUITS OF THIS TYPE. 

CONSIDERING THE NATURE OF A COLLECTIVE BARGAINING CONTRACT, WHICH
INVOLVES THE CORRELATIVE RIGHTS OF EMPLOYER, EMPLOYEE AND UNION, WE
MIGHT BE DISPOSED TO READ SEC. 301 AS ALLOWING THE UNION TO SUE IN THIS
CASE.  WITH DUE REGARD TO THE CONSTITUTIONAL DIFFICULTIES WHICH WOULD
BE RAISED, AND IN VIEW OF THE FACT THAT SUCH AN INTERPRETATION WOULD
BRING TO THE FEDERAL COURTS AN EXTENSIVE RANGE OF LITIGATION HERETOFORE
ENTERTAINED BY THE STATES, WE CONCLUDE THAT CONGRESS DID NOT WILL THIS
RESULT.   THERE WAS NO SUGGESTION THAT CONGRESS, AT A TIME WHEN ITS
ATTENTION WAS DIRECTED TO CONGESTION IN THE FEDERAL COURTS,
PARTICULARLY IN THE HEAVY INDUSTRIAL AREAS, INTENDED TO OPEN THE DOORS
OF THE FEDERAL COURTS TO A POTENTIAL FLOOD OF GRIEVANCES BASED UPON AN
EMPLOYER'S FAILURE TO COMPLY WITH TERMS OF A COLLECTIVE AGREEMENT
RELATING TO COMPENSATION, TERMS PECULIAR IN THE INDIVIDUAL BENEFIT
WHICH IS THEIR SUBJECT MATTER AND WHICH, WHEN VIOLATED, GIVE A CAUSE OF
ACTION TO THE INDIVIDUAL EMPLOYEE.  THE EMPLOYEES HAVE ALWAYS BEEN ABLE
TO ENFORCE THEIR INDIVIDUAL RIGHTS IN THE STATE COURTS.  (FN29)  THEY
HAVE NOT BEEN HAMPERED BY THE RULES GOVERNING UNINCORPORATED
ASSOCIATIONS.  TO THIS EXTENT, THE COLLECTIVE BARGAINING CONTRACT HAS
ALWAYS BEEN "ENFORCEABLE." 

NOWHERE IN THE LEGISLATIVE HISTORY DID CONGRESS DISCUSS OR SHOW ANY
RECOGNITION OF THE TYPE OF SUIT INVOLVED HERE, IN WHICH THE UNION IS
SUING ON BEHALF OF EMPLOYEES FOR ACCRUED WAGES.  THEREFORE, WE CONCLUDE
THAT CONGRESS DID NOT CONFER ON THE FEDERAL COURTS JURISDICTION OVER A
SUIT SUCH AS THIS ONE.  AFFIRMED. 

FN1  SECTION 301 PROVIDES: 

"SEC. 301.  (A)  SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER
AND A LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY
AFFECTING COMMERCE AS DEFINED IN THIS ACT, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHICH REPRESENTS EMPLOYEES IN AN
INDUSTRY AFFECTING COMMERCE AS DEFINED IN THIS ACT AND ANY EMPLOYER
WHOSE ACTIVITIES AFFECT COMMERCE AS DEFINED IN THIS ACT SHALL BE BOUND
BY THE ACTS OF ITS AGENTS.  ANY SUCH LABOR ORGANIZATION MAY SUE OR BE
SUED AS AN ENTITY AND IN BEHALF OF THE EMPLOYEES WHOM IT REPRESENTS IN
THE COURTS OF THE UNITED STATES.  ANY MONEY JUDGMENT AGAINST A LABOR
ORGANIZATION IN A DISTRICT COURT OF THE UNITED STATES SHALL BE
ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST ITS
ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER OR
HIS ASSETS. 

"(C)  FOR THE PURPOSES OF ACTIONS AND PROCEEDINGS BY OR AGAINST LABOR
ORGANIZATIONS IN THE DISTRICT COURTS OF THE UNITED STATES, DISTRICT
COURTS SHALL BE DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1)
IN THE DISTRICT IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL
OFFICE, OR (2) IN ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR
AGENTS ARE ENGAGED IN REPRESENTING OR ACTING FOR EMPLOYEE MEMBERS. 

"(D)  THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS OF ANY
COURT OF THE UNITED STATES UPON AN OFFICER OR AGENT OF A LABOR
ORGANIZATION, IN HIS CAPACITY AS SUCH, SHALL CONSTITUTE SERVICE UPON
THE LABOR ORGANIZATION. 

"(E)  FOR THE PURPOSES OF THIS SECTION, IN DETERMINING WHETHER ANY
PERSON IS ACTING AS AN 'AGENT' OF ANOTHER PERSON SO AS TO MAKE SUCH
OTHER PERSON RESPONSIBLE FOR HIS ACTS, THE QUESTION OF WHETHER THE
SPECIFIC ACTS PERFORMED WERE ACTUALLY AUTHORIZED OR SUBSEQUENTLY
RATIFIED SHALL NOT BE CONTROLLING." 

FN2  SECTION 1 OF THE ACT STATES THE CONGRESSIONAL AIM TO BE THE
ENUMERATION OF "LEGITIMATE RIGHTS" OF EMPLOYERS AND EMPLOYEES AND THE
DEFINITION OF PRACTICES TO BE OUTLAWED IN THE INTEREST OF FURTHERING
INDUSTRIAL PEACE.  NO INFERENCE PERTINENT TO THE JURISDICTIONAL CONTENT
OF SEC. 301 CAN BE DRAWN FROM THIS INTRODUCTORY GENERALIZATION.  NO
OTHER PROVISION OF THE ACT INDICATES THAT SUBSTANTIVE FEDERAL LAW WAS
TO GUIDE THE DETERMINATION OF THE CONTRACTUAL RIGHTS AND LIABILITIES
THAT ARE TO FLOW FROM A COLLECTIVE BARGAINING CONTRACT.  SECTION 302
CONTAINS A HIGHLY SPECIALIZED RESTRICTION ON THE LEGALITY OF EMPLOYERS'
AGREEMENTS TO MAKE PAYMENTS TO EMPLOYEE REPRESENTATIVES.  SECTION 303
PROVIDES A FEDERAL RIGHT TO RECOVER DAMAGES SUFFERED AS A RESULT OF
IMPROPER BOYCOTTS.  SECTION 8 ENUMERATES UNFAIR LABOR PRACTICES; THESE
MAY IN SOME INSTANCES BECOME RELEVANT TO THE VALIDITY OR INTERPRETATION
OF A COLLECTIVE AGREEMENT.  CERTAIN PROCEDURAL SAFEGUARDS ARE PLACED
ABOUT THE COLLECTIVE BARGAINING AGREEMENT:  AN OBLIGATION TO CONFER IN
GOOD FAITH ON QUESTIONS ARISING UNDER IT; A DUTY TO FOLLOW CERTAIN
STEPS PRIOR TO TERMINATING OR MODIFYING THE AGREEMENT UNILATERALLY. 
(SECS. 8(D), 204(A)(2).)  AND A LIMITED NUMBER OF SUBSTANTIVE RIGHTS
CONFERRED UNDER THE ACT MAY INCIDENTALLY INVOLVE THE INTERPRETATION OF
THE COLLECTIVE AGREEMENT.  (E.G., SEC. 9(A).)  IT IS SIGNIFICANT,
HOWEVER, THAT BREACH OF CONTRACT IS NOT AN "UNFAIR LABOR PRACTICE."  A
PROPOSAL TO THAT END WAS CONTAINED IN THE SENATE BILL, BUT WAS DELETED
IN CONFERENCE WITH THE OBSERVATION:  "ONCE PARTIES HAVE MADE A
COLLECTIVE BARGAINING CONTRACT THE ENFORCEMENT OF THAT CONTRACT SHOULD
BE LEFT TO THE USUAL PROCESSES OF THE LAW AND NOT TO THE NATIONAL LABOR
RELATIONS BOARD."  (H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS.
42.)  THE ACT EXPRESSLY DEFERS TO STATE LAW ON THE QUESTION OF LEGALITY
OF THE UNION SHOP PROVISION.  (SECS. 8(A)(3), 14(B).) 

FN3  H.R. 1781, 78TH CONG., 1ST SESS.; H.R. 4960, 79TH CONG., 1ST
SESS.; S. 2488, S.J.  RES. 133; H.J. RES. 318, 79TH CONG., 2D SESS.;
S.J. RES. 8; H.J. RES. 43, 80TH CONG., 1ST SESS. 

FN4  S. 1641, 79TH CONG., 1ST SESS. 

FN5  S. 1656, 79TH CONG., 1ST SESS.; S. 123; H.R. 267, 1430, 80TH
CONG., 1ST SESS. 

FN6  S. 55, 404; H.R. 725, 80TH CONG., 1ST SESS.  UNDER S. 937, 80TH
CONG., 1ST SESS., A SYSTEM OF FEDERAL LABOR COURTS TO HEAR ALL CASES
ARISING OUT OF COLLECTIVE BARGAINING CONTRACTS WOULD HAVE BEEN
ESTABLISHED. 

FN7  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
EDUCATION AND LABOR ON H.R. 4908, 79TH CONG., 2D SESS. 11. 

FN8  S. REP. NO. 1177, 79TH CONG., 2D SESS. 8. 

FN9  ID., PART 2, AT 3-4, 10-14.  THE SECTION WHICH THEY PROPOSED WAS
AS FOLLOWS: 

"SEC. - .  (A)  SUITS FOR VIOLATION OF A CONTRACT CONCLUDED AS THE
RESULT OF COLLECTIVE BARGAINING BETWEEN AN EMPLOYER AND A LABOR
ORGANIZATION IF SUCH CONTRACT AFFECTS COMMERCE AS DEFINED IN THIS ACT
MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED STATES HAVING
JURISDICTION OF THE PARTIES. 

"(B)  ANY LABOR ORGANIZATION WHOSE ACTIVITIES AFFECT COMMERCE AS
DEFINED IN THIS ACT SHALL BE BOUND BY THE ACTS OF ITS DULY AUTHORIZED
AGENTS ACTING WITHIN THE SCOPE OF THEIR AUTHORITY FROM THE SAID LABOR
ORGANIZATION AND MAY SUE OR BE SUED AS AN ENTITY AND IN BEHALF OF THE
EMPLOYEES WHOM IT REPRESENTS IN THE COURTS OF THE UNITED STATES:
PROVIDED, THAT ANY MONEY JUDGMENT AGAINST SUCH LABOR ORGANIZATION SHALL
BE ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST
ITS ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER
OR HIS ASSETS." 

FN10  DURING THE HEARINGS ON THE TAFT-HARTLEY BILL, SENATOR TAFT
SUGGESTED THAT THE FACT THAT THE COLLECTIVE BARGAINING AGREEMENT WAS
THE PRODUCT OF THE EXERCISE OF FEDERALLY CREATED RIGHTS AND DUTIES WAS
AN ADEQUATE JUSTIFICATION FOR FEDERAL JURISDICTION.  HEARINGS BEFORE
SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, ON S. 55 AND S.J. RES.
22, 80TH CONG., 1ST SESS. 57. 

FN11  SEE THE STATEMENTS OF SENATORS MURRAY AND MAGNUSON WHICH SEEMED
TO SUGGEST THAT SEC. 10 WOULD CREATE "FEDERAL RIGHTS."  92 CONG. REC.
5708, 5720, 5411-5415.  SENATOR MURRAY, HOWEVER, APPEARS TO HAVE BEEN
THINKING ONLY OF THE PROCEDURAL AND JURISDICTIONAL RIGHTS ADMITTEDLY
CONFERRED BY SEC. 10.  SENATOR MAGNUSON SPOKE BEFORE SENATOR TAFT
INTRODUCED THE AMENDMENT CONTAINING SEC. 10, AND MAY NOT HAVE
UNDERSTOOD THAT IT DIFFERED CONSIDERABLY FROM THE HOUSE VERSION. 

FN12  H.R. 3020, 80TH CONG., 1ST SESS. SEC. 302; S. 1126, 80TH CONG.,
1ST SESS. SEC. 301. 

FN13  HEARINGS BEFORE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE ON
S. 55 AND S.J. RES.  22, 80TH CONG., 1ST SESS. 58.  DURING THESE
HEARINGS SECRETARY SCHWELLENBACH STATED:  "SINCE THE FIELD OF NECESSARY
LEGISLATIVE ACTION IS SO NARROW, I SEE NO REASON WHY THE GATES OF THE
FEDERAL COURTS SHOULD BE OPENED SO WIDE AS TO INVITE LITIGATION, AS IS
DONE BY THIS PROPOSED SECTION.  SPEAKING AS A LAWYER AND FORMER MEMBER
OF THE FEDERAL JUDICIARY, I HAVE AN OBJECTION TO THE ABANDONMENT IN
THIS FIELD OF THE REQUIREMENT OF THE $3,000 AMOUNT IN CONTROVERSY AS A
PREREQUISITE TO FEDERAL JURISDICTION.  THIS IS A RIGHT WHICH HAS BEEN
JEALOUSLY GUARDED BY THE CONGRESS AND BY THE FEDERAL COURTS.  TO HAVE
THEM CLUTTERED UP WITH A GREAT MASS OF PETTY LITIGATION INVOLVING
AMOUNTS LESS THAN $3,000 WOULD BRING THEM BACK TO THE POSITION WHICH
THEY OCCUPIED DURING PROHIBITION DAYS WHEN THEY BECAME JUST A LITTLE
BIT ABOVE THE LEVEL OF THE AVERAGE POLICE COURT INSOFAR AS CRIMINAL
WORK WAS CONCERNED. 

"I DO NOT SEE WHY IT IS NECESSARY IN THIS FIELD TO ABANDON THE
DIVERSITY OF CITIZENSHIP REQUIREMENT.  IN FACT I DOUBT THAT IT CAN BE
ABANDONED CONSTITUTIONALLY.  THE CONSTITUTION, AS YOU KNOW, LIMITS
SUITS IN THE FEDERAL COURTS TO CASES ARISING UNDER THE CONSTITUTION AND
THE LAWS OF THE UNITED STATES OR INVOLVING DIVERSITY OF CITIZENSHIP." 
ID., AT 56. 

FN14  H. REP. NO. 245, 80TH CONG., 1ST SESS. 108-110; S. REP. NO.
105, 80TH CONG., 1ST SESS., PART 2, 13-15. 

FN15  93 CONG. REC. 4033, 4906 (SENATOR MURRAY); ID., AT 4768
(SENATOR THOMAS). 

FN16  E.G., GULLY V. FIRST NAT. BANK, 299 U.S. 109. 

FN17  SEE AMERICAN WELL WORKS CO. V. LAYNE & BOWLER CO., 241 U.S.
257, 260. 

FN18  SMITH V. KANSAS CITY TITLE & TRUST CO., 255 U.S. 180. 

FN19  SEE, E.G., MISHKIN, THE FEDERAL "QUESTION" IN THE DISTRICT
COURTS, 53 COL. L. REV. 157, 160; SHULMAN AND JAEGERMAN, SOME
JURISDICTIONAL LIMITATIONS ON FEDERAL PROCEDURE, 45 YALE L.J. 393, 405,
N. 47; WECHSLER, FEDERAL JURISDICTION AND THE REVISION OF THE JUDICIAL
CODE, 13 LAW & CONTEMP.  PROB.  216, 225. 

FN20  OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738; PACIFIC
RAILROAD REMOVAL CASES, 115 U.S. 1.    FN21  SCHUMACHER V. BEELER, 293
U.S. 367; WILLIAMS V. AUSTRIAN, 331 U.S. 642. 

FN22  CF. LA CROSSE TELEPHONE CORP. V. WISCONSIN EMPLOYMENT RELATIONS
BOARD, 336 U.S. 18. 

FN23  62 STAT. 934, 28 U.S.C. SEC. 1349:  "THE DISTRICT COURTS SHALL
NOT HAVE JURISDICTION OF ANY CIVIL ACTION BY OR AGAINST ANY CORPORATION
UPON THE GROUND THAT IT WAS INCORPORATED BY OR UNDER AN ACT OF
CONGRESS, UNLESS THE UNITED STATES IS THE OWNER OF MORE THAN ONE-HALF
OF ITS CAPITAL STOCK." 

FN24  SEE GULLY V. FIRST NAT. BANK, 299 U.S. 109, 113. 

FN25  FOR SOME OF THE VIEWS ADVANCED CONCERNING THE POWER OF CONGRESS
TO CONFER JURISDICTION DESPITE THE ABSENCE OF ANY "FEDERAL QUESTION" IN
THE TRADITIONAL SENSE, SEE NATIONAL MUTUAL INS. CO. V. TIDEWATER
TRANSFER CO., 337 U.S. 582, 600; TEXTILE WORKERS UNION V. AMERICAN
THREAD CO., 113 F. SUPP. 137; HART AND WECHSLER, THE FEDERAL COURTS AND
THE FEDERAL SYSTEM, 744-747; WECHSLER, FEDERAL JURISDICTION AND THE
REVISION OF THE JUDICIAL CODE, 13 LAW & CONTEMP.  PROB.  216, 224;
MISHKIN, THE FEDERAL "QUESTION" IN THE DISTRICT COURTS, 53 COL.  L.
REV. 157, 184. 

FN26  AT LEAST ONE FEDERAL COURT HAS HELD THAT STATE LAW IS TO BE
APPLIED, PERHAPS ON THE THEORY OF FEDERAL INCORPORATION OF STATE LAW AS
FEDERAL LAW.  INSURANCE AGENTS' INTERNATIONAL UNION V. PRUDENTIAL INS.
CO., 122 F. SUPP. 869; SEE TEXTILE WORKERS UNION V. AMERICAN THREAD
CO., 113 F. SUPP. 137, 140 (SUGGESTION OF SUCH A POSSIBILITY).  CF.
INTERNATIONAL WOODWORKERS V. MCCLOUD RIVER LUMBER CO., 119 F. SUPP. 475
(STATE LAW APPLIED WHERE JURISDICTION WAS BASED ON DIVERSITY AS WELL AS
SEC. 301); ISBRANDTSEN CO. V. LOCAL 1291, 107 F. SUPP.  72, AFF'D 204
F.2D 495 (DIVERSITY AGAIN PRESENT; ON APPEAL, FEDERAL AND STATE LAW
FOUND TO BE THE SAME AND QUESTION OF APPLICABLE LAW AVOIDED); JOHN
HANCOCK MUTUAL LIFE INS. CO. V. UNITED OFFICE & PROFESSIONAL WORKERS,
93 F. SUPP. 296 (REMOVAL TO FEDERAL COURT DENIED ON GROUND THAT EVEN IF
SEC. 301 GIVES FEDERAL RIGHTS, THE COMPLAINTS WERE FRAMED WITH
REFERENCE SOLELY TO STATE LAW). 

MOST FEDERAL COURTS, HOWEVER, HOLD THAT SEC. 301 CREATED FEDERAL
SUBSTANTIVE RIGHTS AND, WHEN CALLED UPON TO CHOOSE BETWEEN STATE AND
FEDERAL LAW, APPLY THE LATTER.  E.G., UNITED ELECTRICAL, RADIO &
MACHINE WORKERS V. OLIVER CORP., 205 F.2D 376; MILK & ICE CREAM DRIVERS
& DAIRY EMPLOYEES UNION V. GILLESPIE MILK PRODUCTS CORP., 203 F.2D 650;
SHIRLEY-HERMAN CO. V. INTERNATIONAL HOD CARRIERS UNION, 182 F.2D 806;
INTERNATIONAL PLAINFIELD MOTOR CO. V. LOCAL 343, 123 F. SUPP. 683;
WAIALUA AGR.  CO. V. UNITED SUGAR WORKERS, 114 F. SUPP.  243; LUDLOW
MFG. & SALES CO. V. TEXTILE WORKERS UNION, 108 F. SUPP. 45; PEPPER &
POTTER, INC. V. LOCAL 977, 103 F. SUPP. 684; FAY V. AMERICAN CYSTOSCOPE
MAKERS, INC., 98 F. SUPP.  278; TEXTILE WORKERS UNION V. ALEO MFG. CO.,
94 F. SUPP. 626; WILSON & CO. V. UNITED PACKINGHOUSE WORKERS, 83 F.
SUPP. 162; COLONIAL HARDWOOD FLOORING CO. V. INTERNATIONAL UNION, 76 F.
SUPP. 493, AFF'D 168 F.2D 33; INTERNATIONAL UNION V. DAHLEM CONST. CO.,
193 F.2D 470 (SEMBLE); SEE ROCK DRILLING, LOCAL UNION NO. 17 V. MASON &
HANGER CO., 217 F.2D 687, 691; SCHATTE V. INTERNATIONAL ALLIANCE, 182
F.2D 158, 164.  CF. TEXTILE WORKERS UNION V. ARISTA MILLS CO., 193 F.2D
529 (REFUSAL TO PASS ON WHETHER SUBSTANTIVE FEDERAL RIGHTS CREATED;
FEDERAL LAW APPARENTLY VIEWED AS APPLICABLE TO ISSUE RAISED IN ANY
EVENT). 

AT LEAST TWO COURTS HAVE DRAWN A DISTINCTION BETWEEN THE LAW TO BE
APPLIED TO MATTERS OF "SUBSTANTIVE RIGHT" AND "REMEDY."  HAMILTON
FOUNDRY & MACHINE CO. V. INTERNATIONAL MOLDERS UNION, 193 F.2D 209
(FEDERAL RIGHTS CREATED BUT STATE STATUTE OF FRAUDS APPLIED); TEXTILE
WORKERS UNION V. AMERICAN THREAD CO., 113 F. SUPP. 137 (WHETHER OR NOT
FEDERAL LAW APPLIES TO OTHER MATTERS, FEDERAL LAW REGARDING ENFORCEMENT
OF ARBITRATION CLAUSES APPLIES). 

FN27  THE COLLECTIVE AGREEMENT WAS VARIOUSLY VIEWED AS:  (1) THE MERE
FORMULATION OF USAGE OR CUSTOM RELEVANT TO THE INTERPRETATION OF THE
INDIVIDUAL EMPLOYMENT CONTRACT; (2) A CONTRACT BETWEEN THE EMPLOYER AND
THE INDIVIDUAL MEMBER-EMPLOYEES, NEGOTIATED BY THE UNION AS THE
EMPLOYEES' AGENT; (3) A CONTRACT BETWEEN THE UNION AND EMPLOYER FOR THE
BENEFIT OF THE INDIVIDUAL EMPLOYEES; AND (4) AS HELD BY THE COURT
BELOW, A CONTRACT BETWEEN THE UNION AND EMPLOYER GIVING THE UNION
CERTAIN RIGHTS, INCLUDING THE RIGHT TO INSIST THAT THE EMPLOYER
CONTRACT WITH HIS EMPLOYEES CONSISTENTLY WITH THE TERMS OF THE
AGREEMENT, BUT GIVING THE UNION NO RIGHT TO ENFORCE OBLIGATIONS RUNNING
TO INDIVIDUALS UNDER THEIR CONTRACTS OF HIRE. 

FN28  THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS AMENDED THEIR STANDING
RULES TO PROVIDE FOR AUTOMATIC CONSENT OF ALL MEMBERS TO THE
BROTHERHOOD'S PROSECUTION OF GRIEVANCES AT THEIR TENTH TRIENNIAL
CONVENTION IN MARCH AND APRIL 1947.  THE BROTHERHOOD OF LOCOMOTIVE
FIREMEN AND ENGINEMEN ADDED A SIMILAR PROVISION TO THEIR CONSTITUTION
AT THEIR 35TH CONVENTION IN 1947.  THE ORDER OF RAILWAY CONDUCTORS AND
BRAKEMEN AMENDED THEIR "STATUTE" IN A SIMILAR FASHION IN 1946.  THE
BROTHERHOOD OF RAILROAD TRAINMEN AT THEIR 1946 CONVENTION ADOPTED A NEW
GENERAL RULE WHICH EMPOWERED THE BROTHERHOOD TO PROSECUTE GRIEVANCES
"EXCEPT IN INDIVIDUAL CASES WHERE THE MEMBER OR MEMBERS INVOLVED SERVE
SEASONABLE WRITTEN NOTICE ON THE BROTHERHOOD TO THE CONTRARY." 

FN29  FOR EXAMPLES OF SUCH SUITS BY EMPLOYEES IN STATE COURTS PRIOR
TO 1947, WHEN THE TAFT-HARTLEY ACT WAS PASSED, SEE GULLA V. BARTON, 164
APP. DIV. 293, 149 N.Y. SUPP. 952; H. BLUM & CO. V. LANDAU, 23 OHIO
APP. 426, 155 N.E. 154; MASTELL V. SALO, 140 ARK. 408, 215 S.W. 583;
MCGREGOR V. LOUISVILLE & N.R. CO., 244 KY. 696, 51 S.W.2D 953; O'JAY
SPREAD CO. V. HICKS, 185 GA. 507, 195 S.E. 564 (CLASS SUIT); RENTSCHLER
V. MISSOURI PAC. R. CO., 126 NEB. 493, 253 N.W. 694; VOLQUARDSEN V.
SOUTHERN AMUSEMENT CO., 156 SO. 678 (LA. APP.); YAZOO & M.V.R. CO. V.
SIDEBOARD, 161 MISS.  4, 133 SO. 669; CROSS MOUNTAIN COAL CO. V. AULT,
157 TENN. 461, 9 S.W.2D 692; AND HALL V. ST. LOUIS-SAN FRANCISCO R.
CO., 224 MO. APP.  431, 28 S.W.2D 687.  SEE ALSO MOORE V. ILLINOIS
CENTRAL R. CO., 312 U.S. 630; J.I. CASE CO. V. LABOR BOARD, 321 U.S.
332, 336; I TELLER, LABOR DISPUTES AND COLLECTIVE BARGAINING (1940,
1947 CUM. SUPP.), SECS. 166-168; II WILLISTON, CONTRACTS (REV. ED.
1936), SEC. 379A. 

AND SUCH SUITS ARE STILL BEING ENTERTAINED.  E.G., DUFOUR V.
CONTINENTAL SOUTHERN LINES, INC., 219 MISS.  296, 68 SO. 2D 489;
DONAHOO V. THOMPSON, 270 S.W.2D 104; MARRANZANO V. RIGGS NAT. BANK, 87
U.S. APP. D.C. 195, 184 F.2D 349; MACKAY V. LOEW'S, INC., 182 F.2D 170
(DIVERSITY CASE); II WILLISTON, CONTRACTS, SEC. 379A (1954 CUM.
SUPP.). 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE WARREN, WITH WHOM MR. JUSTICE CLARK JOINS,
CONCURRING. 

WE AGREE WITH THE DECISION BUT NOT WITH ALL THAT IS SAID IN THE
OPINION.  THE ONLY QUESTION WE SEE HERE IS ONE OF STATUTORY
INTERPRETATION.  FOR US THE LANGUAGE OF SEC. 301 IS NOT SUFFICIENTLY
EXPLICIT NOR ITS LEGISLATIVE HISTORY SUFFICIENTLY CLEAR TO INDICATE
THAT CONGRESS INTENDED TO AUTHORIZE A UNION TO ENFORCE IN A FEDERAL
COURT THE UNIQUELY PERSONAL RIGHT OF AN EMPLOYEE FOR WHOM IT HAD
BARGAINED TO RECEIVE COMPENSATION FOR SERVICES RENDERED HIS EMPLOYER. 
THUS VIEWED, IT BECOMES UNNECESSARY FOR US EITHER TO MAKE LABOR POLICY
OR TO RAISE CONSTITUTIONAL ISSUES. 

MR. JUSTICE REED, CONCURRING. 

MY ANALYSIS OF THIS CASE LEADS ME TO CONCUR ON GROUNDS STATED LATER
WITHOUT THE EXTENSIVE COMMENT AND BROAD TREATMENT GIVEN BY THE OPINION
OF MR. JUSTICE FRANKFURTER. 

WHAT IS THERE SAID AS TO THE SUBSTANTIVE LAW TO BE APPLIED IN SEC.
301 ACTIONS WILL BE PERTINENT IN CASES WHICH ARE DEEMED TO HAVE BEEN
PROPERLY BROUGHT UNDER THAT SECTION - THAT IS, WHERE THERE IS SET FORTH
THE VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT BASED ON THE FAILURE
OF EITHER THE EMPLOYER OR THE UNION TO CARRY OUT ITS UNDERTAKINGS WITH
THE OTHER.  IT IS APPROPRIATE THEREFORE FOR ME TO STATE MY VIEWS AS TO
THE LAW WHICH WILL BE APPLIED IN THOSE ACTIONS AND IN SO DOING TO
EXPRESS MY DISAGREEMENT WITH THE CONSTITUTIONAL DOUBTS RAISED BY THE
OPINION OF MR. JUSTICE FRANKFURTER. 

ASSUMING THAT THE PURPOSE OF SEC. 301 WAS TO MAKE UNIONS SUABLE AS IF
CORPORATIONS, WITH PROVISIONS FOR VENUE AND SERVICE, IT ALSO GAVE
JURISDICTION TO FEDERAL DISTRICT COURTS OVER CERTAIN MATTERS RELATED TO
INTERSTATE COMMERCE AND THUS WITHIN THE LEGISLATIVE POWERS OF
CONGRESS.  LABOR BOARD CASES, 301 U.S. 1.  THE LABOR MANAGEMENT
RELATIONS ACT, 1947, IS DIRECTED PRIMARILY TO FEDERAL REGULATION OF
LABOR RELATIONS AFFECTING COMMERCE THROUGH THE MEANS OF COLLECTIVE
BARGAINING.  WHILE ALL CONTRACT QUESTIONS THAT MAY ARISE IN SEC.  301
ACTIONS ARE NOT COVERED BY THE FEDERAL STATUTE, THE ACT FURNISHES SOME
SUBSTANTIVE LAW WHICH WILL BE APPLIED IN THOSE CASES.  IT SETS FORTH
GUIDING PRINCIPLES WHICH WILL BEAR ON CONTRACTS MADE UNDER IT, AND IT
ALSO CONTROLS THE MACHINERY FOR REACHING THOSE AGREEMENTS.  IT POINTS
OUT MANY THINGS THE PARTIES MAY OR MAY NOT DO IN COMMERCE, JUST AS
OTHER ACTS, SUCH AS THE INTERSTATE COMMERCE ACT, DO.  THUS THE
CONTRACTS SUED UPON IN SEC. 301 ACTIONS WILL HAVE BEEN ENTERED INTO IN
ACCORDANCE WITH FEDERAL LAW; AND ALTHOUGH FEDERAL LAW DOES NOT SET
FORTH EXPLICITLY JUST WHAT CONSTITUTES A BREACH, SEC. 301, BY GRANTING
FEDERAL JURISDICTION OVER ACTIONS BETWEEN EMPLOYERS AND UNIONS ON
COLLECTIVE BARGAINING CONTRACTS, DOES MAKE BREACHES OF THEM BY EITHER
OF THOSE PARTIES ACTIONABLE.  THE FACT THAT UNIONS MAY MAKE CONTRACTS
UNDER STATE LAW DOES NOT BAR THE FEDERAL GOVERNMENT FROM LEGISLATION IN
ITS FIELD.  IN CASE OF CONFLICT, FEDERAL LAW PREVAILS.  IT IS AS TRUE
IN FEDERAL LAWS AS IT IS IN STATE LAWS THAT THE POWER TO ENACT GIVES
POWER TO INTERPRET.  JONES V. PRAIRIE OIL CO., 273 U.S. 195, AT 200. 

IT MAY BE THAT IN PROPER LITIGATION UNDER SEC. 301 IT WILL BE
NECESSARY FOR FEDERAL COURTS TO DRAW LARGELY ON STATE LAW FOR THE
SOLUTION OF ISSUES.  IN SUCH INSTANCES STATE LAW IS RELIED UPON BECAUSE
ITS APPLICATION IS NOT CONTRARY TO FEDERAL POLICY, BUT SUPPLEMENTS AND
FULFILLS IT.  BOARD OF COMM'RS V UNITED STATES, 308 U.S. 343, 351.  IT
HAS BEEN HELD THAT A SUIT IN EQUITY ON A FEDERAL RIGHT IN A FEDERAL
COURT DOES NOT NECESSARILY FOLLOW A STATE STATUTE OF LIMITATION. 
HOLMBERG V. ARMBRECHT, 327 U.S. 392.  THE GENERAL RULE IS THAT FEDERAL
INTERPRETATION CONTROLS A FEDERAL ACT.  JEROME V. UNITED STATES, 318
U.S. 101, 104. 

THE FACT THAT A CONSIDERABLE AMOUNT OF STATE LAW MAY BE APPLIED IN
SUITS UNDER SEC. 301 SHOULD NOT AFFECT THE VALIDITY OF THE STATUTE. 
THIS COURT SUSTAINED THE JURISDICTIONAL GRANT OF SEC. 23(A) OF THE
BANKRUPTCY ACT, 44 STAT. 664, DESPITE THE FACT THAT CAUSES OF ACTION
BROUGHT THEREUNDER WERE CREATED AND GOVERNED SOLELY BY STATE LAW. 
SCHUMACHER V. BEELER, 293 U.S. 367; WILLIAMS V. AUSTRIAN, 331 U.S.
642.  SEE ALSO OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738, AND
PACIFIC RAILROAD REMOVAL CASES, 115 U.S. 1, 11.  CF.  THE FEDERAL TORT
CLAIMS ACT.  SINCE CONGRESS HAS LEGISLATIVE POWER OVER LABOR MATTERS
AFFECTING INTERSTATE COMMERCE, IT MAY GRANT JURISDICTION TO THE FEDERAL
COURTS TO TRY INCIDENTS OF THAT ACTIVITY THAT RAISE LEGAL ISSUES, AND
DICTATE WHAT LAW SHOULD BE APPLIED.  THE APPLICATION OF FEDERAL LAW
RAISES NO CONSTITUTIONAL PROBLEM.  IF STATE LAW IS TO BE APPLIED, IT IS
STATE LAW OPERATING AT THE DIRECTION OF AND BY THE PERMISSION OF
CONGRESS.  STATE LAW IS, IN EFFECT, INCORPORATED BY REFERENCE.  SINCE
THE CONTRACT ENTERED INTO THROUGH PROVISIONS OF THE LABOR ACT CREATES
RIGHTS OVER WHICH CONGRESS HAS LEGISLATIVE AUTHORITY, A BREACH OF THE
CONTRACT IS LIKEWISE WITHIN ITS POWER.  CONGRESS BY SEC. 301 HAS
MANIFESTED ITS PURPOSE TO VEST JURISDICTION OVER BREACHES, TO A CERTAIN
EXTENT, IN THE FEDERAL COURTS.  WHETHER THE RULES OF SUBSTANTIVE LAW
APPLIED BY THE FEDERAL COURTS ARE DERIVED FROM FEDERAL OR STATE SOURCES
IS IMMATERIAL.  THE RULES ARE TRULY FEDERAL, NOT STATE.  THE CAUSE OF
ACTION FOR BREACH OF CONTRACT IS THUS A CAUSE OF ACTION ARISING UNDER
FEDERAL LAW, THE SOURCE OF FEDERAL JUDICIAL POWER UNDER ART. III OF THE
CONSTITUTION. 

FROM THE RECOGNITION OF THE POWER OF CONGRESS TO REGULATE MATTERS
AFFECTING COMMERCE IN HOUSTON & TEXAS R. CO. V. UNITED STATES (THE
SHREVEPORT DOCTRINE), 234 U.S. 342, 351 (1914), TO LABOR BOARD CASES,
301 U.S. 1 (1937), QUESTIONS AS TO THE POWER OF CONGRESS OVER LOCAL
INCIDENTS OF NATIONAL COMMERCE PLAGUED ADVOCATES OF LEGAL CHANGES WITH
DOUBTS AS TO THE CONSTITUTIONAL POWER OF CONGRESS TO REGULATE LABOR
RELATIONS EFFECTUALLY.  WITH THE FULL RECOGNITION OF THE INTEGRATION OF
THE LOCAL WITH THE NATIONAL, THE POWER TO USE NATIONAL AUTHORITY IN
COMMERCE, WHEN NEEDED, WAS ESTABLISHED.  I SEE NO OCCASION, AT THIS
LATE DATE, TO ALLOW THE FOG OF ANOTHER DAY TO OBSCURE THE NATIONAL
INTEREST IN THESE PROBLEMS - THIS TIME BY REASON OF ARTICLE III OF THE
CONSTITUTION.  CF. SUBDIVISON 2 OF MR. JUSTICE FRANKFURTER'S OPINION. 

THE REASON, I THINK, THAT THIS UNION CANNOT RECOVER FROM THE EMPLOYER
IN THIS SUIT UNDER SEC. 301 IS THAT THE CLAIM FOR WAGES FOR THE
EMPLOYEES ARISES FROM SEPARATE HIRING CONTRACTS BETWEEN THE EMPLOYER
AND EACH EMPLOYEE.  THE UNION DOES NOT UNDERTAKE TO DO WORK FOR THE
EMPLOYER OR EVEN TO FURNISH WORKERS.  THE DUTY, IF ANY THERE BE, TO PAY
WAGES TO AN EMPLOYEE ARISES FROM THE INDIVIDUAL CONTRACT BETWEEN THE
EMPLOYER AND EMPLOYEE, NOT FROM THE COLLECTIVE BARGAINING AGREEMENT. 
THEREFORE THERE IS SET OUT NO VIOLATION OF A CONTRACT BETWEEN AN
EMPLOYER AND A LABOR ORGANIZATION AS IS REQUIRED TO CONFER JURISDICTION
UNDER SEC. 301.  THE FACTS SHOW AN ALLEGED VIOLATION OF A CONTRACT
BETWEEN AN EMPLOYER AND AN EMPLOYEE - A SITUATION THAT IS NOT COVERED
BY THE STATUTE. 

THE INTERPRETATION CONTAINED IN THE PRECEDING PARAGRAPH CONFORMS TO
THE WORDS OF THE SECTION AND AVOIDS SUGGESTING CONSTITUTIONAL
LIMITATIONS THAT WOULD CRIPPLE THE CREATION OF A NATIONAL SYSTEM FOR
THE ENFORCEMENT OF STATUTES CONCERNING LABOR RELATIONS.    MR. JUSTICE
DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS, DISSENTING. 

I AGREE WITH MR. JUSTICE REED THAT CONGRESS IN THE TAFT-HARTLEY ACT
CREATED FEDERAL SANCTIONS FOR COLLECTIVE BARGAINING AGREEMENTS, MADE
THE CASES AND CONTROVERSIES CONCERNING THEM JUSTICIABLE QUESTIONS FOR
THE FEDERAL COURTS, AND PERMITTED THOSE COURTS TO FASHION FROM THE
FEDERAL STATUTE, FROM STATE LAW, OR FROM OTHER GERMANE SOURCES, FEDERAL
RULES FOR THE CONSTRUCTION AND INTERPRETATION OF THOSE COLLECTIVE
BARGAINING AGREEMENTS.    MY DISSENT IS FROM THE REFUSAL OF THE
MAJORITY TO ALLOW THE UNION STANDING TO BRING THIS SUIT.  THE COMPLAINT
ALLEGED THAT BY REASON OF A COLLECTIVE BARGAINING AGREEMENT THE
EMPLOYER WAS OBLIGATED TO PAY EACH EMPLOYEE, WHOM THE UNION REPRESENTS,
HIS FULL SALARY DURING APRIL 1951, REGARDLESS OF WHETHER HE MISSED A
DAY'S WORK, UNLESS THE EMPLOYEE'S ABSENCE WAS DUE TO "FURLOUGH" OR
"LEAVE OF ABSENCE."  THE COMPLAINT FURTHER ALLEGED THAT THE EMPLOYER
HAD VIOLATED THE COLLECTIVE BARGAINING CONTRACT BY DEDUCTING FROM THE
PAY OF SOME 4,000 EMPLOYEES THEIR WAGES FOR APRIL 3 ON ACCOUNT OF THEIR
ABSENCE, THAT ABSENCE NOT BEING A "FURLOUGH" OR "LEAVE OF ABSENCE"
WITHIN THE MEANING OF THE COLLECTIVE BARGAINING AGREEMENT.  THE UNION
REQUESTED A DECLARATION OF RIGHTS UNDER THE COLLECTIVE BARGAINING
AGREEMENT.  THOUGH THE EMPLOYEES AFFECTED WERE NOT PARTIES TO THE SUIT,
THE COMPLAINT PRAYED FOR AN ACCOUNTING OF THE AMOUNT OWED EACH EMPLOYEE
AND A JUDGMENT IN FAVOR OF THE INDIVIDUAL EMPLOYEES FOR THE UNPAID
WAGES. 

WE MAKE MOUNTAINS OUT OF MOLEHILLS IN NOT ALLOWING THE UNION TO BE
THE SUING AS WELL AS THE BARGAINING AGENCY FOR ITS MEMBERS AS RESPECTS
MATTERS INVOLVING THE CONSTRUCTION AND ENFORCEMENT OF THE COLLECTIVE
BARGAINING AGREEMENT.  INDIVIDUAL CONTRACTS OF EMPLOYMENT RESULT FROM
EACH COLLECTIVE BARGAINING AGREEMENT.  BUT THOSE CONTRACTS ARE THE
RESULTANT OF THE COLLECTIVE BARGAINING SYSTEM, A SYSTEM THAT CONTINUES
TO FUNCTION AND OPERATE AFTER THE CONTRACTS ARE MADE.  THE CONCEPT OF
COLLECTIVE BARGAINING CONTAINED IN THE STATUTE (29 U.S.C. SEC. 159(A))
INCLUDES, OF COURSE, THE NEGOTIATION OF THE COLLECTIVE AGREEMENT AND
THE SETTLING OF THE TERMS OF THE INDIVIDUAL CONTRACTS.  BUT THE
COLLECTIVE BARGAINING RELATIONSHIP DOES NOT END THERE.  TO BE SURE, THE
TAFT-HARTLEY ACT PROVIDES THAT THERE SHALL BE NO CHANGES IN THE
PROVISIONS OF THE AGREEMENT DURING ITS TERM, 29 U.S.C. SEC.  158(D). 
BUT THAT DOES NOT MEAN THAT THE COLLECTIVE BARGAINING AGENT DROPS OUT
OF THE PICTURE ONCE THE AGREEMENT IS MADE.  WE KNOW ENOUGH OF TRADE
UNION PRACTICES TO KNOW THAT THE ADVENT OF COLLECTIVE BARGAINING HAS
PRODUCED A PERMANENT, ORGANIZED RELATIONSHIP BETWEEN THE UNION AND THE
EMPLOYER, INVOLVING A DAY-TO-DAY ADMINISTRATION OF THE COLLECTIVE
AGREEMENT.  THE ACT INDEED EXTENDS THE RIGHT OF COLLECTIVE BARGAINING
THAT FAR.  FOR IT SPECIFICALLY PROVIDES THAT "  ...  TO BARGAIN
COLLECTIVELY IS THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE
EMPLOYER AND THE REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER
TERMS AND CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT,
OR ANY QUESTION ARISING THEREUNDER  ...  ," 61 STAT. 142, 29 U.S.C.
SEC. 158(D). 

THE PROCESSING OF GRIEVANCES IS RECOGNIZED BY THE ACT AS A FUNCTION
WHICH THE LABOR ORGANIZATION PERFORMS OR MAY PERFORM.  FOR 29 U.S.C.
SEC. 152(5) DEFINES "LABOR ORGANIZATION" AS AN AGENCY WHICH DEALS WITH
EMPLOYERS, INTER ALIA, "CONCERNING GRIEVANCES."  AS THE NATIONAL LABOR
RELATIONS BOARD STATED IN HUGHES TOOL CO., 104 N.L.R.B. 318, 326, "THE
ADJUSTMENT OF GRIEVANCES, VIEWED IN THE LARGER ASPECT, CONSTITUTES, TO
A GREAT DEGREE, THE ACTUAL ADMINISTRATION OF A COLLECTIVE-BARGAINING
CONTRACT." 

THE ADMINISTRATION OF THE COLLECTIVE AGREEMENT IS ITS LIFE AND
MEANING.  THE ADJUSTMENT AND SETTLEMENT OF GRIEVANCES, THE DEVELOPMENT
OF AN ADMINISTRATIVE PRACTICE CONCERNING THE COLLECTIVE AGREEMENT GIVE
IT FORCE AND AUTHORITY. 

THE RIGHT OF INDIVIDUAL EMPLOYEES TO PRESENT THEIR OWN GRIEVANCES IS
RECOGNIZED BY THE ACT.  29 U.S.C. SEC. 159(A).  BUT EVEN WHEN THEY
DESIRE TO SPEAK FOR THEMSELVES, RATHER THAN THROUGH THE UNION, CONGRESS
ATTACHED TWO IMPORTANT CONDITIONS.  FIRST, ANY ADJUSTMENT OF THE
INDIVIDUAL GRIEVANCE MUST NOT BE "INCONSISTENT WITH THE TERMS OF A
COLLECTIVE-BARGAINING CONTRACT OR AGREEMENT THEN IN EFFECT."  SECOND,
THE UNION MUST BE GIVEN "OPPORTUNITY TO BE PRESENT AT SUCH
ADJUSTMENT."  ID. 

IT IS PLAIN, I THINK, THAT THE GRIEVANCE PROCEDURE IS A PART OF THE
COLLECTIVE BARGAINING PROCESS.   AND A LAWSUIT IS ONE OF THE ULTIMATES
OF A GRIEVANCE.  A LAWSUIT, LIKE NEGOTIATION OR ARBITRATION, RESOLVES
THE DISPUTE AND SETTLES IT.   IN SHORT, THE UNION REPRESENTS THE
INTERESTS OF THE COMMUNITY OF EMPLOYEES IN THE COLLECTIVE BARGAINING
AGREEMENT.  THE WIDE RANGE OF ITS INTERESTS ARE ENVISAGED BY THE ACT,
WHICH GIVES THE COLLECTIVE BARGAINING AGENCY EXCLUSIVE AUTHORITY TO
BARGAIN "IN RESPECT TO RATES OF PAY, WAGES, HOURS OF EMPLOYMENT, OR
OTHER CONDITIONS OF EMPLOYMENT."  29 U.S.C. SEC. 159(A).  THE RANGE OF
ITS AUTHORITY IS THE RANGE OF ITS INTERESTS.  WHAT THE UNION OBTAINS IN
THE COLLECTIVE AGREEMENT IT SHOULD BE ENTITLED TO ENFORCE OF DEFEND IN
THE FORUMS WHICH HAVE BEEN PROVIDED.  WHEN WE DISALLOW IT THAT
STANDING, WE FAIL TO KEEP THE LAW ABREAST OF THE INDUSTRIAL
DEVELOPMENTS OF THIS AGE. 
..END :




















WEBER V. ANHEUSER-BUSCH, INC. 348 U.S. 468 


NO. 97.  ARGUED FEBRUARY 2-3, 1955 - DECIDED MARCH 28, 1955 - 364 MO.
573, 265 S.W.2D 325, REVERSED. 


IN A DISPUTE BETWEEN TWO UNIONS OVER WORK BEING PERFORMED FOR
RESPONDENT, EACH CLAIMING THE WORK FOR ITS OWN MEMBERS, ONE UNION WENT
ON STRIKE.  RESPONDENT FILED WITH THE NATIONAL LABOR RELATIONS BOARD A
CHARGE OF AN UNFAIR LABOR PRACTICE UNDER SEC. 8(B)(4)(D) OF THE TAFT
HARTLEY ACT AGAINST THE STRIKING UNION; BUT THE BOARD HELD THAT NO
"DISPUTE" EXISTED WITHIN THE MEANING OF THAT SUBSECTION AND QUASHED THE
NOTICE OF A HEARING.  RESPONDENT FILED A COMPLAINT IN A MISSOURI STATE
COURT, ALLEGING VIOLATIONS OF OTHER SUBSECTIONS OF SEC. 8(B)(4) OF THE
TAFT-HARTLEY ACT AND ALSO A VIOLATION OF THE STATE'S RESTRAINT OF TRADE
STATUTE.  THE STATE COURT ENJOINED THE STRIKE AS A RESTRAINT OF TRADE. 
HELD:  THE STATE COURT WAS WITHOUT JURISDICTION TO ENJOIN THE CONDUCT
OF THE UNION, SINCE ITS JURISDICTION HAS BEEN PRE-EMPTED BY THE
AUTHORITY VESTED IN THE NATIONAL LABOR RELATIONS BOARD.  PP. 469-482. 

(A)  WHETHER THE BOARD'S FINDING THAT NO VIOLATION OF SEC.8(B)(4)(D)
WAS INVOLVED NECESSARILY ENCOMPASSED A RULING ON THE OTHER SUBSECTIONS
WAS A QUESTION FOR THE BOARD TO PASS UPON IN THE FIRST INSTANCE.  P.
477-478. 

(B)  CONGRESS HAS SUFFICIENTLY EXPRESSED ITS PURPOSE TO BRING THE
CONDUCT HERE IN CONTROVERSY WITHIN FEDERAL CONTROL AND TO EXCLUDE STATE
PROHIBITON, EVEN THOUGH THAT WITH WHICH THE FEDERAL LAW IS CONCERNED AS
A MATTER OF LABOR RELATIONS BE RELATED BY THE STATE TO THE MORE
INCLUSIVE AREA OF RESTRAINT OF TRADE.  PP. 480-481. 

(C)  WHERE THE MOVING PARTY ITSELF ALLEGES UNFAIR LABOR PRACTICES,
WHERE THE FACTS REASONABLY BRING THE CONTROVERSY WITHIN THE SECTIONS
PROHIBITING THESE PRACTICES, AND WHERE THE CONDUCT, IF NOT PROHIBITED
BY THE FEDERAL ACT, MAY REASONABLY BE DEEMED TO COME WITHIN THE
PROTECTION AFFORDED BY THAT ACT, A STATE COURT MUST DECLINE
JURISDICTION IN DEFERENCE TO THE TRIBUNAL WHICH CONGRESS HAS SELECTED
FOR DETERMINING SUCH ISSUES IN THE FIRST INSTANCE.  P. 481. 

(D)  ALLEN-BRADLEY, LOCAL V. WISCONSIN EMPLOYMENT RELATIONS BOARD,
315 U.S. 740, DISTINGUISHED.  PP. 481-482.  OOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

WEBER ET AL. V. ANHEUSER-BUSCH, INC. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

THE STATE SUPREME COURT AFFIRMED A PERMANENT INJUNCTION ISSUED BY A
LOWER STATE COURT AGAINST PETITIONER.  364 MO. 573, 265 S.W.2D 325. 
THIS COURT GRANTED CERTIORARI.  348 U.S. 808.  REVERSED AND REMANDED,
P. 482. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE GREW OUT OF A DISPUTE BETWEEN PETITIONER, THE INTERNATIONAL
ASSOCIATION OF MACHINISTS (IAM), AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR, AND THE MILLWRIGHTS, AFFILIATED WITH THE UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS (CARPENTERS), WHICH IN TURN WAS
AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, OVER MILLWRIGHT WORK
BEING PERFORMED FOR RESPONDENT, EACH UNION CLAIMING THE WORK FOR ITS
OWN MEMBERS. 

RESPONDENT IS ENGAGED IN THE INTERSTATE MANUFACTURE AND SALE OF BEER
AND OTHER COMMODITIES, WITH ITS PRINCIPAL PLACE OF BUSINESS IN ST.
LOUIS, MISSOURI.  ITS EMPLOYEES INCLUDE MEMBERS OF BOTH THE IAM AND THE
CARPENTERS.  RESPONDENT HAS ALWAYS REQUIRED A LARGE AMOUNT OF
MILLWRIGHT WORK TO BE PERFORMED BY OUTSIDE CONTRACTORS IN THE EXPANSION
OF ITS FACILITIES.  AFTER THE IAM WAS CERTIFIED IN 1948 BY THE NATIONAL
LABOR RELATIONS BOARD AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
RESPONDENT'S MACHINISTS, RESPONDENT EXECUTED A COLLECTIVE BARGAINING
CONTRACT WITH THE IAM FOR 1949 WHICH PROVIDED IN PART THAT WHEN THE
REPAIR OR REPLACEMENT OF MACHINERY WAS NECESSARY, THIS WORK WOULD BE
GIVEN ONLY TO THOSE CONTRACTORS WHO HAD COLLECTIVE AGREEMENTS WITH THE
IAM.  AS A RESULT OF PROTESTS FROM THE CARPENTERS, WHO CLAIMED THE SAME
TYPE OF WORK FOR THEIR OWN MEMBERS, THE CLAUSE WAS DELETED FROM THE
1950 CONTRACT BETWEEN RESPONDENT AND THE IAM, BUT IT WAS LATER
REINSTATED IN THE 1951 CONTRACT.  THE CARPENTERS AGAIN PROTESTED, THIS
TIME THREATENING THAT THEY WOULD SIGN NO CONTRACT WITH RESPONDENT
COVERING THOSE EMPLOYEES WHO WERE MEMBERS OF THE CARPENTERS UNTIL THE
CLAUSE WAS DELETED FROM THE IAM CONTRACT.  WHEN THE 1951 IAM CONTRACT
EXPIRED AND NEGOTIATIONS FOR A 1952 CONTRACT BEGAN, RESPONDENT REFUSED
TO AGREE TO THE INSERTION OF THE CLAUSE IN THE NEW CONTRACT.   AN
IMPASSE WAS REACHED IN THE NEGOTIATIONS, AND FINALLY THE IAM WENT ON
STRIKE. 

AT THE TIME THE STRIKE WAS CALLED, ONLY ONE CONTRACTOR WAS ACTUALLY
ENGAGED IN RESPONDENT'S MILLWRIGHT WORK, AND THE EMPLOYEES OF THAT ONE
CONTRACTOR WERE COVERED BY A CONTRACT WITH THE IAM. 

ON APRIL 8, 1952, THE DAY AFTER THE STRIKE WAS CALLED, RESPONDENT
FILED A CHARGE OF AN UNFAIR LABOR PRACTICE UNDER SEC. 8(B)(4)(D) OF THE
TAFT-HARTLEY ACT AGAINST THE IAM.  (FN1) 

ON NOVEMBER 18, 1952, THE NATIONAL LABOR RELATIONS BOARD QUASHED THE
NOTICE OF A HEARING, HOLDING THAT NO "DISPUTE" EXISTED WITHIN THE
MEANING OF THE INVOKED SUBSECTION.  THE BOARD REASONED THAT AT THE TIME
OF THE STRIKE, THE IAM COULD NOT HAVE BEEN REQUESTING THE ASSIGNMENT OF
"PARTICULAR" WORK TO IAM MEMBERS, BECAUSE THE IAM WAS NOT COMPLAINING
ABOUT THE ASSIGNMENT OF WORK BY RESPONDENT TO ITS OWN EMPLOYEES, AND AS
TO WORK ASSIGNED BY RESPONDENT'S CONTRACTORS, (1) THE IAM HAD MADE NO
DEMAND ON THOSE CONTRACTORS TO GIVE THEIR WORK TO IAM LABOR, AND (2) NO
MILLWRIGHT WORK PERFORMED BY RESPONDENT'S CONTRACTORS AT THAT TIME WAS
IN FACT BEING PERFORMED BY OTHER THAN IAM LABOR.  DISTRICT NO. 9,
INTERNATIONAL ASSOCIATION OF MACHINISTS, 101 N.L.R.B. 346. 

IT MUST BE EMPHASIZED THAT THE ONLY UNFAIR LABOR PRACTICE CHARGE
FILED WITH THE BOARD, AND THE ONLY ONE UPON WHICH THE BOARD ACTED, WAS
THAT PRESCRIBED IN SUBSECTION (D) OF SEC. 8(B)(4). 

IN THE MEANTIME, ON APRIL 19, 1952, AFTER IT HAD FILED THE CHARGE
WITH THE BOARD BUT BEFORE THE BOARD HAD ACTED UPON IT, RESPONDENT
SOUGHT AN INJUNCTION AGAINST THE IAM IN THE STATE CIRCUIT COURT IN ST.
LOUIS.  IN ITS COMPLAINT, RESPONDENT ALLEGED THAT THE STRIKE
CONSTITUTED "A SECONDARY BOYCOTT UNDER THE COMMON LAW OF THE STATE OF
MISSOURI," AND ALSO WAS IN VIOLATION OF SUBSECTIONS (A), (B) AND (D) OF
SEC. 8(B)(4) OF THE TAFT-HARTLEY ACT (FN2) AND OF SEC.  303(A)(1), (2)
AND (4) OF THAT SAME ACT.  (FN3)  A TEMPORARY INJUNCTION ISSUED.  ON
APRIL 30, RESPONDENT AMENDED ITS COMPLAINT WITH THE ADDITIONAL CLAIM
THAT THE IAM'S CONDUCT CONSTITUTED AN ILLEGAL CONSPIRACY IN RESTRAINT
OF TRADE UNDER MISSOURI COMMON LAW AND CONSPIRACY STATUTES.  MO. REV.
STAT., 1949, SEC. 416.010.  THE TEMPORARY INJUNCTION WAS THEREUPON MADE
PERMANENT ON SEPTEMBER 30, 1952, SOME TIME BEFORE THE BOARD, IT WILL BE
RECALLED, HELD THAT THERE WAS NO VIOLATION OF SEC. 8(B)(4)(D) OF THE
TAFT-HARTLEY ACT.  THIS INJUNCTION WAS VACATED, BUT IMMEDIATELY RE
ENTERED, ON OCTOBER 3, 1952. 

THE IAM APPEALED TO THE MISSOURI SUPREME COURT FROM THE CIRCUIT
COURT'S INJUNCTION.  THAT COURT AFFIRMED THE PERMANENT INJUNCTION ON
FEBRUARY 8, 1954, MORE THAN A YEAR AFTER THE BOARD FOUND NO VIOLATION
OF SEC. 8(B)(4)(D). 

THE MISSOURI SUPREME COURT HELD THAT THE IAM'S CONDUCT CONSTITUTED A
VIOLATION OF THE STATE'S RESTRAINT OF TRADE STATUTE AND AS SUCH WAS
ENJOINABLE.  IT REFERRED TO THE RULING OF THE BOARD AS A DETERMINATION
THAT "NO LABOR DISPUTE EXISTED BETWEEN THESE PARTIES AND THAT NO UNFAIR
LABOR PRACTICES WERE THERE INVOLVED, AND THE BOARD, UPON SUCH RULING,
QUASHED THE NOTICE OF THE HEARING."  THE COURT THEN STATED:  "THE CASES
RELIED ON BY THE DEFENDANTS (THE IAM) ARE LARGELY CASES INVOLVING
EXISTING LABOR DISPUTES AND UNFAIR LABOR PRACTICES.  WE THINK THOSE
CASES ARE NOT IN POINT."  THE COURT CONCLUDED:  "A JURISDICTIONAL
QUARREL BETWEEN TWO RIVAL LABOR UNIONS IS NOT A LABOR DISPUTE WITHIN
THE NORRIS-LAGUARDIA ACT,  ...  THE WAGNER ACT OR THE TAFT-HARTLEY
ACT."  364 MO. 573, 584, 586, 265 S.W.2D 325, 332, 333.  THE STATE
SUPREME COURT THUS TREATED THE BOARD'S HOLDING AS A DETERMINATION THAT
THE ALLEGATION ON WHICH THE INJUNCTION ISSUED EXCLUDED THE BASIS FOR A
CHARGE OF AN UNFAIR LABOR PRACTICE UNDER THE TAFT-HARTLEY ACT. 

THE PRINCIPAL QUESTION THAT THE CASE RAISES, WHETHER THE STATE COURT
HAD JURISDICTION TO ENJOIN THE IAM'S CONDUCT OR WHETHER ITS
JURISDICTION HAD BEEN PRE-EMPTED BY THE AUTHORITY VESTED IN THE
NATIONAL LABOR RELATIONS BOARD, HAS AN IMPORTANCE IN THE FEDERAL-STATE
RELATIONS REGARDING INDUSTRIAL CONTROVERSIES THAT LED US TO GRANT
CERTIORARI.  348 U.S. 808. 

THE COURT HAS HAD NUMEROUS OCCASIONS TO DEAL WITH THIS DELICATE
PROBLEM OF THE INTERPLAY BETWEEN STATE AND FEDERAL JURISDICTION
TOUCHING LABOR RELATIONS.  IT IS HELPFUL TO A CONSIDERATION OF THIS
LATEST PHASE BRIEFLY TO SUMMARIZE WHERE OUR DECISIONS, UNDER BOTH THE
WAGNER ACT AND THE TAFT-HARTLEY ACT, HAVE BROUGHT US. 

1.  THE COURT HAS RULED THAT A STATE MAY NOT PROHIBIT THE EXERCISE OF
RIGHTS WHICH THE FEDERAL ACTS PROTECT.  THUS, IN HILL V. FLORIDA, 325
U.S. 538, THE STATE ENJOINED A LABOR UNION FROM FUNCTIONING UNTIL IT
HAD COMPLIED WITH CERTAIN STATUTORY REQUIREMENTS.  THE INJUNCTION WAS
INVALIDATED ON THE GROUND THAT THE WAGNER ACT INCLUDED A "FEDERALLY
ESTABLISHED RIGHT TO COLLECTIVE BARGAINING" WITH WHICH THE INJUNCTION
CONFLICTED.  INTERNATIONAL UNION V. O'BRIEN, 339 U.S. 454, INVOLVED THE
STRIKE-VOTE PROVISIONS OF A STATE ACT WHICH PROHIBITED THE CALLING OF A
STRIKE UNTIL A SPECIFIC STATUTORY PROCEDURE HAD BEEN FOLLOWED.  THE
STATE ACT WAS HELD TO CONFLICT NOT ONLY WITH THE PROCEDURE AND OTHER
REQUIREMENTS OF THE TAFT-HARTLEY STRIKE PROVISIONS BUT ALSO WITH THE
PROTECTION AFFORDED BY SEC. 7 OF THAT ACT.  (FN4)  IN AMALGAMATED
ASSOCIATION V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 340 U.S. 383, THE
STATE COURT ISSUED AN INJUNCTION UNDER A STATUTE WHICH MADE IT A
MISDEMEANOR TO INTERRUPT BY STRIKE ANY ESSENTIAL PUBLIC UTILITY
SERVICES.  IT WAS HELD THAT THE STATE STATUTE WAS INVALID IN THAT IT
DENIED A RIGHT WHICH CONGRESS HAD GUARANTEED UNDER SEC. 7 OF THE TAFT
HARTLEY ACT - THE RIGHT TO STRIKE PEACEFULLY TO ENFORCE UNION DEMANDS
FOR WAGES, HOURS AND WORKING CONDITIONS.  LAST TERM THE COURT NOTED IN
GARNER V. TEAMSTERS UNION, 346 U.S. 485, 499, THAT: 

"THE DETAILED PRESCRIPTION OF A PROCEDURE FOR RESTRAINT OF SPECIFIED
TYPES OF PICKETING WOULD SEEM TO IMPLY THAT OTHER PICKETING IS TO BE
FREE OF OTHER METHODS AND SOURCES OF RESTRAINT.  FOR THE POLICY OF THE
NATIONAL LABOR MANAGEMENT RELATIONS ACT IS NOT TO CONDEMN ALL PICKETING
BUT ONLY THAT ASCERTAINED BY ITS PRESCRIBED PROCESSES TO FALL WITHIN
ITS PROHIBITIONS.  OTHERWISE, IT IS IMPLICIT IN THE ACT THAT THE PUBLIC
INTEREST IS SERVED BY FREEDOM OF LABOR TO USE THE WEAPON OF PICKETING. 
FOR A STATE TO IMPINGE ON THE AREA OF LABOR COMBAT DESIGNED TO BE FREE
IS QUITE AS MUCH AN OBSTRUCTION OF FEDERAL POLICY AS IF THE STATE WERE
TO DECLARE PICKETING FREE FOR PURPOSES OR BY METHODS WHICH THE FEDERAL
ACT PROHIBITS." 

2.  A STATE MAY NOT ENJOIN UNDER ITS OWN LABOR STATUTE CONDUCT WHICH
HAS BEEN MADE AN "UNFAIR LABOR PRACTICE" UNDER THE FEDERAL STATUTES. 
SUCH WAS THE HOLDING IN THE GARNER CASE, SUPRA.  THE COURT POINTED OUT
THAT EXCLUSIVE PRIMARY JURISDICTION TO PASS ON THE UNION'S PICKETING IS
DELEGATED BY THE TAFT-HARTLEY ACT TO THE NATIONAL LABOR RELATIONS
BOARD.  SEE ALSO PLANKINTON PACKING CO. V. WISCONSIN EMPLOYMENT
RELATIONS BOARDS, 338 U.S. 953; BUILDING TRADES COUNCIL V. KINARD
CONSTRUCTION CO., 346 U.S. 933.  AND IN CAPITAL SERVICE, INC. V. LABOR
BOARD 347 U.S. 501, A PICKET LINE ESTABLISHED AT RETAIL STORES TO
INDUCE THE ORGANIZATION OF A MANUFACTURER'S EMPLOYEES WAS ENJOINED BY
THE STATE AS CONTRARY TO ITS PUBLIC POLICY.  (FN5)  THIS COURT GRANTED
A LIMITED CERTIORARI WHICH ASSUMED THAT EXCLUSIVE JURISDICTION OVER THE
SUBJECT MATTER WAS IN THE NATIONAL LABOR RELATIONS BOARD.  (FN6)  THE
BOARD WAS ALLOWED TO OBTAIN AN INJUNCTION AGAINST ENFORCEMENT OF THE
CONFLICTING STATE COURT INJUNCTION. 

3.  THE FEDERAL BOARD'S MACHINERY FOR DEALING WITH CERTIFICATION
PROBLEMS ALSO CARRIES IMPLICATIONS OF EXCLUSIVENESS.  THUS, A STATE MAY
NOT CERTIFY A UNION AS THE COLLECTIVE BARGAINING AGENT FOR EMPLOYEES
WHERE THE FEDERAL BOARD, IF CALLED UPON, WOULD USE ITS OWN
CERTIFICATION PROCEDURE.  LA CROSSE TELEPHONE CORP. V. WISCONSIN
EMPLOYMENT RELATIONS BOARD, 336 U.S. 18.  THE SAME RESULT IS REACHED
EVEN IF THE FEDERAL BOARD HAS REFUSED CERTIFICATION, IF THE EMPLOYER IS
SUBJECT TO THE BOARD'S JURISDICTION.  BETHLEHEM STEEL CO. V. NEW YORK
STATE LABOR RELATIONS BOARD, 330 U.S. 767. 

4.  ON THE OTHER HAND, IN THE FOLLOWING CASES THE AUTHORITY WHICH THE
STATE EXERCISED WAS FOUND NOT TO HAVE BEEN EXCLUSIVELY ABSORBED BY THE
FEDERAL ENACTMENTS. 

IN ALLEN-BRADLEY LOCAL V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 315
U.S. 740, THE STATE WAS ALLOWED TO ENJOIN MASS PICKETING, THREATS OF
BODILY INJURY AND PROPERTY DAMAGE TO EMPLOYEES, OBSTRUCTION OF STREET
AND PUBLIC ROADS, THE BLOCKING OF ENTRANCE TO AND EGRESS FROM A
FACTORY, AND THE PICKETING OF EMPLOYEES' HOMES.  THE COURT HELD THAT
SUCH CONDUCT WAS NOT SUBJECT TO REGULATION BY THE FEDERAL BOARD, EITHER
BY PROHIBITION OR BY PROTECTION. 

INTERNATIONAL UNION V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 336 U.S.
245, INVOLVED RECURRENT, UNANNOUNCED WORK STOPPAGES.  THE COURT UPHELD
THE STATE INJUNCTION ON THE GROUND THAT SUCH CONDUCT WAS NEITHER
PROHIBITED NOR PROTECTED BY THE TAFT-HARTLEY ACT AND THUS WAS OPEN TO
STATE CONTROL. 

THE COURT ALLOWED A STATE TO FORBID ENFORCEMENT OF A MAINTENANCE-OF
MEMBERSHIP CLAUSE IN A CONTRACT BETWEEN EMPLOYER AND UNION IN ALGOMA
PLYWOOD & VENEER CO. V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 336 U.S.
301.  SINCE NOTHING IN THE WAGNER OR TAFT-HARTLEY ACTS SANCTIONED OR
FORBADE THESE CLAUSES, THEY WERE LEFT TO REGULATION BY THE STATE. 

FINALLY, UNITED CONSTRUCTION WORKERS V. LABURNUM CONSTRUCTION CORP.,
347 U.S. 656, WAS AN ACTION FOR DAMAGES BASED ON VIOLENT CONDUCT, WHICH
THE STATE COURT FOUND TO BE A COMMON-LAW TORT.  WHILE ASSUMING THAT AN
UNFAIR LABOR PRACTICE UNDER THE TAFT-HARTLEY ACT WAS INVOLVED, THIS
COURT SUSTAINED THE STATE JUDGMENT ON THE THEORY THAT THERE WAS NO
COMPENSATORY RELIEF UNDER THE FEDERAL ACT AND NO FEDERAL ADMINISTRATIVE
RELIEF WITH WHICH THE STATE REMEDY CONFLICTED. 

WE COME, THEN, TO THE FACTS IN THIS CASE. 

CONTRARY TO THE ASSUMPTION OF THE MISSOURI SUPREME COURT, THE BOARD
HAD NOT RULED THAT NO UNFAIR LABOR PRACTICE WAS INVOLVED IN THE CONDUCT
BY THE IAM OF WHICH RESPONDENT COMPLAINED.  THE BOARD HAD DETERMINED
ONLY THAT THERE WAS NO VIOLATION OF SUBSECTION (D) OF SEC. 8(B)(4). 
THAT WAS, IN FACT, THE EXTENT OF THE RULING IT WAS EMPOWERED TO MAKE,
BECAUSE (D) WAS THE ONLY SUBSECTION ALLEGED TO HAVE BEEN VIOLATED.  IN
ITS COMPLAINT IN THE STATE COURT, HOWEVER, RESPONDENT BROADENED ITS
ALLEGATIONS TO INCLUDE VIOLATIONS OF SUBSECTIONS (A) AND (B). 

WE DO NOT MEAN TO PASS ON THE QUESTION WHETHER THE BOARD, BY FINDING
THAT NO VIOLATION OF (D) WAS INVOLVED, INFERENTIALLY RULED THAT OTHER
SUBSECTIONS WERE OR WERE NOT VIOLATED.  THE POINT IS RATHER THAT THE
BOARD, AND NOT THE STATE COURT, IS EMPOWERED TO PASS UPON SUCH ISSUES
IN THE FIRST INSTANCE.  IF A RULING ON (D) NECESSARILY ENCOMPASSED A
RULING ON THE OTHER SUBSECTIONS, WE WOULD HAVE A DIFFERENT CASE.  BUT
THE RULING ON (D) WAS BASED ON THE FINDING THAT NO "PARTICULAR WORK"
WAS INVOLVED - A PHRASE OF (D) THAT IS ABSENT IN (A) AND (B).  CONGRESS
HAS LODGED IN THE BOARD RESPONSIBILITY FOR DETERMINING IN THE FIRST
INSTANCE WHETHER THE SAME CONSIDERATIONS APPLY TO (A) OR (B) AS APPLY
TO (D).    NOR IS IT WITHIN OUR COMPETENCE NOW TO DETERMINE WHETHER THE
CONDUCT IN CONTROVERSY IS SUBJECT TO THE AUTHORITY OF SUBSECTIONS (A)
OR (B).  UNDER THE BOARD'S DECISIONS, FOR EXAMPLE, IT MAY BECOME
PERTINENT WHETHER THIS IS EVENTUALLY DEEMED PRIMARY PRESSURE, DIRECTED
AT RESPONDENT TO FORCE INSERTION OF THE DISPUTED CLAUSE IN ITS CONTRACT
WITH THE IAM, RATHER THAN SECONDARY PRESSURE, AIMED AT SUBCONTRACTORS
TO FORCE THEM TO USE IAM LABOR.  (FN7)  WE ARE NOT NOW RULING ON THAT
DISTINCTION.   HOWEVER, THE POINT IS PERTINENT TO OUR DISCUSSION,
BECAUSE EVEN IF IT WERE CLEAR THAT NO UNFAIR LABOR PRACTICES WERE
INVOLVED, IT WOULD NOT NECESSARILY FOLLOW THAT THE STATE WAS FREE TO
ISSUE ITS INJUNCTION.  IF THIS CONDUCT DOES NOT FALL WITHIN THE
PROHIBITIONS OF SEC. 8 OF THE TAFT-HARTLEY ACT, IT MAY FALL WITHIN THE
PROTECTION OF SEC. 7, AS CONCERTED ACTIVITY FOR THE PURPOSE OF MUTUAL
AID OR PROTECTION. 

RESPONDENT ITSELF ALLEGED THAT THE UNION CONDUCT IT WAS SEEKING TO
STOP CAME WITHIN THE PROHIBITIONS OF THE FEDERAL ACT, AND YET IT
DISREGARDED THE BOARD AND OBTAINED RELIEF FROM A STATE COURT.  IT IS
PERFECTLY CLEAR THAT HAD RESPONDENT GONE FIRST TO A FEDERAL COURT
INSTEAD OF THE STATE COURT, THE FEDERAL COURT WOULD HAVE DECLINED
JURISDICTION, AT LEAST AS TO THE UNFAIR LABOR PRACTICES, ON THE GROUND
THAT EXCLUSIVE PRIMARY JURISDICTION WAS IN THE BOARD.  (FN8)  AS
POINTED OUT IN THE GARNER CASE, 346 U.S., AT 491, THE SAME
CONSIDERATIONS APPLY TO THE STATE COURTS. 

THE MISSOURI SUPREME COURT OVERSIMPLIFIED THE FACTUAL SITUATION WHEN
IT CALLED THIS MERELY A "JURISDICTIONAL QUARREL BETWEEN TWO RIVAL LABOR
UNIONS."  A JURISDICTIONAL DISPUTE AND A SECONDARY BOYCOTT ARE NOT
NECESSARILY MUTUALLY EXCLUSIVE, AS RESPONDENT ITSELF SHOWED BY
ALLEGING, INTER ALIA, THAT THIS WAS A SECONDARY BOYCOTT PROHIBITED BY
MISSOURI COMMON LAW.  EVEN THE BOARD HAS NOT ALWAYS BEEN CONSISTENT IN
ITS INTERPRETATIONS OF THE VARIOUS SUBSECTIONS OF SEC. 8(B)(4). 

RESPONDENT ARGUES THAT MISSOURI IS NOT PROHIBITING THE IAM'S CONDUCT
FOR ANY REASON HAVING TO DO WITH LABOR RELATIONS BUT RATHER BECAUSE
THAT CONDUCT IS IN CONTRAVENTION OF A STATE LAW WHICH DEALS GENERALLY
WITH RESTRAINT OF TRADE.  IT DISTINGUISHES GARNER ON THE GROUND THAT
THERE THE STATE AND CONGRESS WERE BOTH ATTEMPTING TO REGULATE LABOR
RELATIONS AS SUCH. 

WE DO NOT THINK THIS DISTINCTION IS DECISIVE.  IN GARNER THE EMPHASIS
WAS NOT ON TWO CONFLICTING LABOR STATUTES BUT RATHER ON TWO SIMILAR
REMEDIES, ONE STATE AND ONE FEDERAL, BROUGHT TO BEAR ON PRECISELY THE
SAME CONDUCT.  AND IN CAPITAL SERVICE, INC. V. LABOR BOARD, SUPRA, WE
DID NOT STOP TO INQUIRE JUST WHAT CATEGORY OF "PUBLIC POLICY" THE
UNION'S CONDUCT ALLEGEDLY VIOLATED.  OUR APPROACH WAS EMPHASIZED IN
UNITED CONSTRUCTION WORKERS V. LABURNUM CONSTRUCTION CORP., SUPRA,
WHERE THE VIOLENT CONDUCT WAS REACHED BY A REMEDY HAVING NO PARALLEL
IN, AND NOT IN CONFLICT WITH, ANY REMEDY AFFORDED BY THE FEDERAL ACT. 

MOREOVER, WE MUST NOT FORGET THAT THIS CASE IS NOT CLEARLY ONE OF
"UNFAIR LABOR PRACTICES."  CERTAINLY IF THE CONDUCT IS EVENTUALLY FOUND
BY THE NATIONAL LABOR RELATIONS BOARD TO BE PROTECTED BY THE TAFT
HARTLEY ACT, THE STATE CANNOT BE HEARD TO SAY THAT IT IS ENJOINING THAT
CONDUCT FOR REASONS OTHER THAN THOSE HAVING TO DO WITH LABOR
RELATIONS.  IN AMALGAMATED ASSOCIATION V. WISCONSIN EMPLOYMENT
RELATIONS BOARD, SUPRA, THE STATUTE WAS DIRECTED AT THE PRESERVATION OF
PUBLIC UTILITY SERVICES AND NOT AT MAINTENANCE OF SOUND LABOR
RELATIONS, BUT THE STATE'S INJUNCTION WAS REVERSED.  CONTROLLING AND
THEREFORE SUPERSEDING FEDERAL POWER CANNOT BE CURTAILED BY THE STATE
EVEN THOUGH THE GROUND OF INTERVENTION BE DIFFERENT THAN THAT ON WHICH
FEDERAL SUPREMACY HAS BEEN EXERCISED. 

BY THE TAFT-HARTLEY ACT, CONGRESS DID NOT EXHAUST THE FULL SWEEP OF
LEGISLATIVE POWER OVER INDUSTRIAL RELATIONS GIVEN BY THE COMMERCE
CLAUSE.  CONGRESS FORMULATED A CODE WHEREBY IT OUTLAWED SOME ASPECTS OF
LABOR ACTIVITIES AND LEFT OTHERS FREE FOR THE OPERATION OF ECONOMIC
FORCES.  AS TO BOTH CATEGORIES, THE AREAS THAT HAVE BEEN PRE-EMPTED BY
FEDERAL AUTHORITY AND THEREBY WITHDRAWN FROM STATE POWER ARE NOT
SUSCEPTIBLE OF DELIMITATION BY FIXED METES AND BOUNDS.  OBVIOUS
CONFLICT, ACTUAL OR POTENTIAL, LEADS TO EASY JUDICIAL EXCLUSION OF
STATE ACTION.  SUCH WAS THE STIUATION IN GARNER V. TEAMSTERS UNION,
SUPRA.  BUT AS THE OPINION IN THAT CASE RECALLED, THE LABOR MANAGEMENT
RELATIONS ACT "LEAVES MUCH TO THE STATES, THOUGH CONGRESS HAS REFRAINED
FROM TELLING US HOW MUCH."  346 U.S., AT 488.  THIS PENUMBRAL AREA CAN
BE RENDERED PROGRESSIVELY CLEAR ONLY BY THE COURSE OF LITIGATION. 
REGARDING THE CONDUCT HERE IN CONTROVERSY, CONGRESS HAS SUFFICIENTLY
EXPRESSED ITS PURPOSE TO BRING IT WITHIN FEDERAL OVERSIGHT AND TO
EXCLUDE STATE PROHIBITION, EVEN THOUGH THAT WITH WHICH THE FEDERAL LAW
IS CONCERNED AS A MATTER OF LABOR RELATIONS BE RELATED BY THE STATE TO
THE MORE INCLUSIVE AREA OF RESTRAINT OF TRADE. 

WE REALIZE THAT IT IS NOT EASY FOR A STATE COURT TO DECIDE, MERELY ON
THE BASIS OF A COMPLAINT AND ANSWER, WHETHER THE SUBJECT MATTER IS THE
CONCERN EXCLUSIVELY OF THE FEDERAL BOARD AND WITHDRAWN FROM THE STATE. 
THIS IS PARTICULARLY TRUE IN A CASE LIKE THIS WHERE THE RULINGS OF THE
BOARD ARE NOT WHOLLY CONSISTENT ON THE MEANING OF THE SECTIONS
OUTLAWING "UNFAIR LABOR PRACTICES," AND WHERE THE AREA OF FREE
"CONCERTED ACTIVITIES" HAS NOT BEEN CLEARLY BOUNDED.  BUT WHERE THE
MOVING PARTY ITSELF ALLEGES UNFAIR LABOR PRACTICES, WHERE THE FACTS
REASONABLY BRING THE CONTROVERSY WITHIN THE SECTIONS PROHIBITING THESE
PRACTICES, AND WHERE THE CONDUCT, IF NOT PROHIBITED BY THE FEDERAL ACT,
MAY BE REASONABLY DEEMED TO COME WITHIN THE PROTECTION AFFORDED BY THAT
ACT, THE STATE COURT MUST DECLINE JURISDICTION IN DEFERENCE TO THE
TRIBUNAL WHICH CONGRESS HAS SELECTED FOR DETERMINING SUCH ISSUES IN THE
FIRST INSTANCE.  (FN9) 

THE STATE DECREE GRANTING THE PERMANENT INJUNCTION FOUND THAT
"DEFENDANTS' (IAM'S) PICKET LINE WAS SO PLACED AND MAINTAINED THAT IT
PREVENTED THE MOVEMENT OF RAILROAD CARS INTO AND OUT OF PLAINTIFF'S
(RESPONDENT'S) PREMISES BY A COMMON CARRIER WITHOUT DANGER OF PHYSICAL
INJURY TO THE PICKETS, AND MOVEMENT OF THE CARS WAS STOPPED FOR THAT
REASON."  THE MISSOURI SUPREME COURT STATED THAT "THE TRANSPORTATION
INTO AND OUT OF THE PLANT WAS STOPPED 'BECAUSE IT ENDANGERED THEIR
(PRESUMABLY THE PICKETS') LIVES AND LIMBS'; ...  ."  364 MO., AT 581,
265 S.W.2D, AT 330.  WE DO NOT READ THIS AS AN UNAMBIGUOUS
DETERMINATION THAT THE IAM'S CONDUCT AMOUNTED TO THE KIND OF MASS
PICKETING AND OVERT THREATS OF VIOLENCE WHICH UNDER THE ALLEN-BRADLEY
LOCAL CASE GIVE THE STATE COURT JURISDICTION.  IT DOES NOT PRECLUDE THE
CONCLUSION THAT THE TRANSPORTATION WAS STOPPED FOR FEAR OF CROSSING AN
OTHERWISE PEACEFUL PICKET LINE.  IN ANY EVENT, THE STATE INJUNCTION
ENJOINED ALL PICKETING.  REVERSED AND REMANDED. 

FN1  61 STAT. 140, 29 U.S.C. SEC. 158(B)(4)(D).  THE SUBSECTION IS
QUOTED IN FOOTNOTE 2, INFRA. 

FN2  "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

     *         *         *         *   * 

"(4)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS:  (A) FORCING OR
REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR
EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON; (B) FORCING OR REQUIRING ANY OTHER
EMPLOYER TO RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE
REPRESENTATIVE OF HIS EMPLOYEES UNLESS SUCH LABOR ORGANIZATION HAS BEEN
CERTIFIED AS THE REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS
OF SECTION 9; ...  (D) FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN
PARTICULAR WORK TO EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A
PARTICULAR TRADE, CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER
LABOR ORGANIZATION OR IN ANOTHER TRADE, CRAFT, OR CLASS, UNLESS SUCH
EMPLOYER IS FAILING TO CONFORM TO AN ORDER OR CERTIFICATION OF THE
BOARD DETERMINING THE BARGAINING REPRESENTATIVE FOR EMPLOYEES
PERFORMING SUCH WORK  ...  ."  61 STAT. 140, 29 U.S.C. SEC.
158(B)(4)(A), (B) AND (D). 

FN3  "(A)  IT SHALL BE UNLAWFUL, FOR THE PURPOSES OF THIS SECTION
ONLY, IN AN INDUSTRY OR ACTIVITY AFFECTING COMMERCE, FOR ANY LABOR
ORGANIZATION TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF
ANY EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE
COURSE OF THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR
OTHERWISE HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR
COMMODITIES OR TO PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS: 

"(1)  FORCING OR REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO
JOIN ANY LABOR OR EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON
TO CEASE USING, SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING
IN THE PRODUCTS OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR
TO CEASE DOING BUSINESS WITH ANY OTHER PERSON: 

""(2)  FORCING OR REQUIRING ANY OTHER EMPLOYER TO RECOGNIZE OR
BARGAIN WITH A LABOR ORGANIZATION AS THE REPRESENTATIVE OF HIS
EMPLOYEES UNLESS SUCH LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE
REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS OF SECTION 9 OF
THE NATIONAL LABOR RELATIONS ACT: 

     *         *         *         *         * 

"(4)  FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE,
CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION
OR IN ANOTHER TRADE, CRAFT, OR CLASS UNLESS SUCH EMPLOYER IS FAILING TO
CONFORM TO AN ORDER OR CERTIFICATION OF THE NATIONAL LABOR RELATIONS
BOARD DETERMINING THE BARGAINING REPRESENTATIVE FOR EMPLOYEES
PERFORMING SUCH WORK  ...  ."  61 STAT. 158, 29 U.S.C. SEC. 187(A)(1),
(2) AND (4). 

IN VIEW OF THE QUESTIONS INVOLVING UNFAIR LABOR PRACTICES AND
PROTECTED ACTIVITY WHICH ARE PRESENT IN THIS CASE, IT IS NOT NECESSARY
TO DISCUSS THE POSSIBLE EFFECT ON STATE JURISDICTION OF SEC. 303(A)(1),
(2) AND (4). 

FN4  SECTION 7 PROVIDES:  "EMPLOYEES SHALL HAVE THE RIGHT TO SELF
ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN
COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO
ENGAGE IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION, AND SHALL ALSO HAVE THE
RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES EXCEPT TO THE
EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN AGREEMENT REQUIRING
MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT AS
AUTHORIZED IN SECTION 8(A)(3)."  61 STAT. 140, 29 U.S.C. SEC. 157. 

FN5  THE COMPLAINT IN THE STATE COURT CHARGED THE DEFENDANT UNIONS
WITH ENGAGING IN "AN UNLAWFUL CONSPIRACY COMBINATION AND AGREEMENT,
CONTRARY TO THE COMMON LAW OF THE STATE OF CALIFORNIA AND CONTRARY TO
THE PROVISIONS OF THE CARTWRIGHT ACT (STATS.  1907, P. 1835, CH. 530),
NOW CONSTITUTING CHAPTER 2 OF PART 2, DIVISION 7, OF THE BUSINESS AND
PROFESSIONS CODE, SECTIONS 16720, ET SEQ., TO CREATE AND CARRY OUT
RESTRICTIONS IN TRADE AND COMMERCE AND TO PREVENT COMPETITION IN
MANUFACTURING, MAKING, TRANSPORTING, SELLING AND PURCHASING OF BAKERY
PRODUCTS AS HEREINAFTER SET FORTH."  THE STATE COURT, HOWEVER, REASONED
THAT PRIMARY PICKETING WAS AS MUCH A COMBINATION IN RESTRAINT OF TRADE
AS SECONDARY PICKETING, AND PRIMARY PICKETING HAD BEEN HELD LEGAL BY
NUMEROUS STATE DECISIONS.  THE COURT INSTEAD ENJOINED THE CONDUCT ON
THE GROUND THAT "SECONDARY PICKETING IS CONTRARY TO THE PUBLIC POLICY
OF THIS STATE  ...  ."  CAPITAL SERVICE, INC. V. BAKERY DRIVERS LOCAL
UNION, CIVIL NO. 595892, SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF
LOS ANGELES. 

FN6  THE COURT GRANTED CERTIORARI LIMITED TO THE FOLLOWING QUESTION,
PROPOUNDED BY THE COURT:  "IN VIEW OF THE FACT THAT EXCLUSIVE
JURISDICTION OVER THE SUBJECT MATTER WAS IN THE NATIONAL LABOR
RELATIONS BOARD (GARNER V. TEAMSTERS UNION, 346 U.S. 485), COULD THE
FEDERAL DISTRICT COURT, ON APPLICATION OF THE BOARD, ENJOIN PETITIONERS
FROM ENFORCING AN INJUNCTION ALREADY OBTAINED FROM THE STATE COURT?" 
346 U.S. 936. 

FN7  CF., E.G., REILLY CARTAGE CO., 110 N.L.R.B., NO. 233; OIL
WORKERS INTERNATIONAL UNION, 84 N.L.R.B. 315; INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, 84 N.L.R.B. 360, REV'D SUB NOM. INTERNATIONAL RICE
MILLING CO. V. LABOR BOARD, 183 F.2D 21, REV'D 341 U.S. 665. 

FN8  SEE, E.G., AMAZON COTTON MILL CO. V. TEXTILE WORKERS UNION, 167
F.2D 183, 188-190; BAKERY & CONFECTIONERY WORKERS' INTERNATIONAL UNION
V. NATIONAL BISCUIT CO., 177 F.2D 684; SEE ALSO GARNER V. TEAMSTERS
UNION, 346 U.S. 485, 491. 

FN9  THE MISSOURI SUPREME COURT RELIED UPON GIBONEY V. EMPIRE STORAGE
& ICE CO., 336 U.S. 490, FOR THE PROPOSITION THAT A STATE COURT RETAINS
JURISDICTION OVER THIS TYPE OF SUIT.  BUT GIBONEY WAS CONCERNED SOLELY
WITH WHETHER THE STATE'S INJUNCTION AGAINST PICKETING VIOLATED THE
FOURTEENTH AMENDMENT.  NO QUESTION OF FEDERAL PRE-EMPTION WAS BEFORE
THE COURT; ACCORDINGLY, IT WAS NOT DEALT WITH IN THE OPINION. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE HARLAN T
..END :








WILLIAMSON V. LEE OPTICAL OF OKLAHOMA, INC. 348 U.S. 483 


NO. 184.  ARGUED MARCH 2, 1955 - DECIDED MARCH 28, 1955 - 120 F. SUPP.
128, AFFIRMED IN PART AND REVERSED IN PART. 


1.  PROVISIONS OF AN OKLAHOMA STATUTE MAKING IT UNLAWFUL FOR ANY
PERSON NOT A LICENSED OPTOMETRIST OR OPHTHALMOLOGIST TO FIT LENSES TO A
FACE OR TO DUPLICATE OR REPLACE INTO FRAMES LENSES OR OTHER OPTICAL
APPLIANCES, EXCEPT UPON WRITTEN PRESCRIPTIVE AUTHORITY OF AN OKLAHOMA
LICENSED OPHTHALMOLOGIST OR OPTOMETRIST, ARE NOT INVALID UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  ROSCHEN V. WARD, 279 U.S.
337.  PP. 484-488. 

2.  TO SUBJECT OPTICIANS TO THIS REGULATORY SYSTEM WHILE EXEMPTING
ALL SELLERS OF READY-TO-WEAR GLASSES DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 488-489. 

3.  A PROVISION MAKING IT UNLAWFUL TO SOLICIT THE SALE OF FRAMES,
MOUNTINGS OR ANY OTHER OPTICAL APPLIANCES DOES NOT VIOLATE THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 489-490. 

4.  A PROVISION FORBIDDING ANY RETAIL MERCHANDISER TO RENT SPACE,
SUBLEASE DEPARTMENTS OR OTHERWISE PERMIT ANY PERSON "PURPORTING TO DO
EYE EXAMINATION OR VISUAL CARE" TO OCCUPY SPACE IN A RETAIL STORE DOES
NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP.
490-491. 

5.  A PROVISION MAKING IT UNLAWFUL TO SOLICIT THE SALE OF SPECTACLES,
EYEGLASSES, LENSES AND PRISMS BY THE USE OF ADVERTISING MEDIA IS
CONSTITUTIONAL.  P. 491. 

WILLIAMSON, ATTORNEY GENERAL OF OKLAHOMA, ET AL. V. LEE OPTICAL OF
OKLAHOMA, INC. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA.* OKLAHOMA.* 

*TOGETHER WITH NO. 185, LEE OPTICAL OF OKLAHOMA, INC. ET AL. V.
WILLIAMSON, ATTORNEY GENERAL OF OKLAHOMA, ET AL., ALSO ON APPEAL FROM
THE SAME COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS INSTITUTED IN THE DISTRICT COURT TO HAVE AN OKLAHOMA
LAW (59 OKLA. STAT.  ANN. SECS. 941-947, OKLA. LAWS 1953, C. 13, SECS.
2-8) DECLARED UNCONSTITUTIONAL AND TO ENJOIN STATE OFFICIALS FROM
ENFORCING IT (28 U.S.C. SECS. 2201, 2202, 2281) FOR THE REASON THAT IT
ALLEGEDLY VIOLATED VARIOUS PROVISIONS OF THE FEDERAL CONSTITUTION.  THE
MATTER WAS HEARD BY A DISTRICT COURT OF THREE JUDGES, AS REQUIRED BY 28
U.S.C. SEC. 2281.  THAT COURT HELD CERTAIN PROVISIONS OF THE LAW
UNCONSTITUTIONAL.  120 F. SUPP. 128.  THE CASE IS HERE BY APPEAL, 28
U.S.C. SEC. 1253. 

THE DISTRICT COURT HELD UNCONSTITUTIONAL PORTIONS OF THREE SECTIONS
OF THE ACT.  FIRST, IT HELD INVALID UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT THE PORTIONS OF SEC. 2 WHICH MAKE IT UNLAWFUL FOR
ANY PERSON NOT A LICENSED OPTOMETRIST OR OPHTHALMOLOGIST TO FIT LENSES
TO A FACE OR TO DUPLICATE OR REPLACE INTO FRAMES LENSES OR OTHER
OPTICAL APPLIANCES, EXCEPT UPON WRITTEN PRESCRIPTIVE AUTHORITY OF AN
OKLAHOMA LICENSED OPHTHALMOLOGIST OR OPTOMETRIST.  (FN1) 

AN OPHTHALMOLOGIST IS A DULY LICENSED PHYSICIAN WHO SPECIALIZES IN
THE CARE OF THE EYES.  AN OPTOMETRIST EXAMINES EYES FOR REFRACTIVE
ERROR, RECOGNIZES (BUT DOES NOT TREAT) DISEASES OF THE EYE, AND FILLS
PRESCRIPTIONS FOR EYEGLASSES.  THE OPTICIAN IS AN ARTISAN QUALIFIED TO
GRIND LENSES, FILL PRESCRIPTIONS, AND FIT FRAMES. 

THE EFFECT OF SEC. 2 IS TO FORBID THE OPTICIAN FROM FITTING OR
DUPLICATING LENSES WITHOUT A PRESCRIPTION FROM AN OPHTHALMOLOGIST OR
OPTOMETRIST.  IN PRACTICAL EFFECT, IT MEANS THAT NO OPTICIAN CAN FIT
OLD GLASSES INTO NEW FRAMES OR SUPPLY A LENS, WHETHER IT BE A NEW LENS
OR ONE TO DUPLICATE A LOST OR BROKEN LENS, WITHOUT A PRESCRIPTION.  THE
DISTRICT COURT CONCEDED THAT IT WAS IN THE COMPETENCE OF THE POLICE
POWER OF A STATE TO REGULATE THE EXAMINATION OF THE EYES.  BUT IT
REBELLED AT THE NOTION THAT A STATE COULD REQUIRE A PRESCRIPTION FROM
AN OPTOMETRIST OR OPHTHALMOLOGIST "TO TAKE OLD LENSES AND PLACE THEM IN
NEW FRAMES AND THEN FIT THE COMPLETED SPECTACLES TO THE FACE OF THE
EYEGLASS WEARER."  120 F. SUPP., AT 135.  IT HELD THAT SUCH A
REQUIREMENT WAS NOT "REASONABLY AND RATIONALLY RELATED TO THE HEALTH
AND WELFARE OF THE PEOPLE."  ID., AT 136.  THE COURT FOUND THAT THROUGH
MECHANICAL DEVICES AND ORDINARY SKILLS THE OPTICIAN COULD TAKE A BROKEN
LENS OR A FRAGMENT THEREOF, MEASURE ITS POWER, AND REDUCE IT TO
PRESCRIPTIVE TERMS.  THE COURT HELD THAT "ALTHOUGH ON THIS PRECISE
ISSUE OF DUPLICATION, THE LEGISLATURE IN THE INSTANT REGULATION WAS
DEALING WITH A MATTER OF PUBLIC INTEREST, THE PARTICULAR MEANS CHOSEN
ARE NEITHER REASONABLY NECESSARY NOR REASONABLY RELATED TO THE END
SOUGHT TO BE ACHIEVED."  ID., AT 137.  IT WAS, ACCORDINGLY, THE OPINION
OF THE COURT THAT THIS PROVISION OF THE LAW VIOLATED THE DUE PROCESS
CLAUSE BY ARBITRARILY INTERFERING WITH THE OPTICIAN'S RIGHT TO DO
BUSINESS. 

WE THINK THE DUE PROCESS QUESTION IS ANSWERED IN PRINCIPLE BY ROSCHEN
V. WARD, 279 U.S. 337, WHICH UPHELD A NEW YORK STATUTE MAKING IT
UNLAWFUL TO SELL EYEGLASSES AT RETAIL IN ANY STORE, UNLESS A DULY
LICENSED PHYSICIAN OR OPTOMETRIST WERE IN CHARGE AND IN PERSONAL
ATTENDANCE.  THE COURT SAID, "  ...  WHEREVER THE REQUIREMENTS OF THE
ACT STOP, THERE CAN BE NO DOUBT THAT THE PRESENCE AND SUPERINTENDENCE
OF THE SPECIALIST TEND TO DIMINISH AN EVIL."  ID., AT 339. 

THE OKLAHOMA LAW MAY EXACT A NEEDLESS, WASTEFUL REQUIREMENT IN MANY
CASES.  BUT IT IS FOR THE LEGISLATURE, NOT THE COURTS, TO BALANCE THE
ADVANTAGES AND DISADVANTAGES OF THE NEW REQUIREMENT.  IT APPEARS THAT
IN MANY CASES THE OPTICIAN CAN EASILY SUPPLY THE NEW FRAMES OR NEW
LENSES WITHOUT REFERENCE TO THE OLD WRITTEN PRESCRIPTION.  IT ALSO
APPEARS THAT MANY WRITTEN PRESCRIPTIONS CONTAIN NO DIRECTIVE DATA IN
REGARD TO FITTING SPECTACLES TO THE FACE.  BUT IN SOME CASES THE
DIRECTIONS CONTAINED IN THE PRESCRIPTION ARE ESSENTIAL, IF THE GLASSES
ARE TO BE FITTED SO AS TO CORRECT THE PARTICULAR DEFECTS OF VISION OR
ALLEVIATE THE EYE CONDITION.  THE LEGISLATURE MIGHT HAVE CONCLUDED THAT
THE FREQUENCY OF OCCASIONS WHEN A PRESCRIPTION IS NECESSARY WAS
SUFFICIENT TO JUSTIFY THIS REGULATION OF THE FITTING OF EYEGLASSES. 
LIKEWISE, WHEN IT IS NECESSARY TO DUPLICATE A LENS, A WRITTEN
PRESCRIPTION MAY OR MAY NOT BE NECESSARY.  BUT THE LEGISLATURE MIGHT
HAVE CONCLUDED THAT ONE WAS NEEDED OFTEN ENOUGH TO REQUIRE ONE IN EVERY
CASE.  OR THE LEGISLATURE MAY HAVE CONCLUDED THAT EYE EXAMINATIONS WERE
SO CRITICAL, NOT ONLY FOR CORRECTION OF VISION BUT ALSO FOR DETECTION
OF LATENT AILMENTS OR DISEASES, THAT EVERY CHANGE IN FRAMES AND EVERY
DUPLICATION OF A LENS SHOULD BE ACCOMPANIED BY A PRESCRIPTION FROM A
MEDICAL EXPERT.  TO BE SURE, THE PRESENT LAW DOES NOT REQUIRE A NEW
EXAMINATION OF THE EYES EVERY TIME THE FRAMES ARE CHANGED OR THE LENSES
DUPLICATED.  FOR IF THE OLD PRESCRIPTION IS ON FILE WITH THE OPTICIAN,
HE CAN GO AHEAD AND MAKE A NEW FITTING OR DUPLICATE THE LENSES.  BUT
THE LAW NEED NOT BE IN EVERY RESPECT LOGICALLY CONSISTENT WITH ITS AIMS
TO BE CONSTITUTIONAL.  IT IS ENOUGH THAT THERE IS AN EVIL AT HAND FOR
CORRECTION, AND THAT IT MIGHT BE THOUGHT THAT THE PARTICULAR
LEGISLATIVE MEASURE WAS A RATIONAL WAY TO CORRECT IT. 

THE DAY IS GONE WHEN THIS COURT USES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO STRIKE DOWN STATE LAWS, REGULATORY OF BUSINESS
AND INDUSTRIAL CONDITIONS, BECAUSE THEY MAY BE UNWISE, IMPROVIDENT, OR
OUT OF HARMONY WITH A PARTICULAR SCHOOL OF THOUGHT.  SEE NEBBIA V. NEW
YORK, 291 U.S. 502; WEST COAST HOTEL CO. V. PARISH, 300 U.S. 379; OLSEN
V. NEBRASKA, 313 U.S. 236; LINCOLN UNION V. NORTHWESTERN CO., 335 U.S.
525; DANIEL V. FAMILY INS. CO., 336 U.S. 220; DAY-BRITE LIGHTING, INC.
V. MISSOURI, 342 U.S. 421.  WE EMPHASIZE AGAIN WHAT CHIEF JUSTICE WAITE
SAID IN MUNN V. ILLINOIS, 94 U.S. 113, 134, "FOR PROTECTION AGAINST
ABUSES BY LEGISLATURES THE PEOPLE MUST RESORT TO THE POLLS, NOT TO THE
COURTS." 

SECONDLY, THE DISTRICT COURT HELD THAT IT VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO SUBJECT OPTICIANS TO
THIS REGULATORY SYSTEM AND TO EXEMPT, AS SEC.  3 OF THE ACT (FN2) DOES,
ALL SELLERS OF READY-TO-WEAR GLASSES.  THE PROBLEM OF LEGISLATIVE
CLASSIFICATION IS A PERENNIAL ONE, ADMITTING OF NO DOCTRINAIRE
DEFINITION.  EVILS IN THE SAME FIELD MAY BE OF DIFFERENT DIMENSIONS AND
PROPORTIONS, REQUIRING DIFFERENT REMEDIES.  OR SO THE LEGISLATURE MAY
THINK.  TIGNER V. TEXAS, 310 U.S. 141.  OR THE REFORM MAY TAKE ONE STEP
AT A TIME, ADDRESSING ITSELF TO THE PHASE OF THE PROBLEM WHICH SEEMS
MOST ACUTE TO THE LEGISLATIVE MIND.  SEMLER V. DENTAL EXAMINERS, 294
U.S. 608.  THE LEGISLATURE MAY SELECT ONE PHASE OF ONE FIELD AND APPLY
A REMEDY THERE, NEGLECTING THE OTHERS.  A.F.  OF L. V. AMERICAN SASH
CO., 335 U.S. 538.  THE PROHIBITION OF THE EQUAL PROTECTION CLAUSE GOES
NO FURTHER THAN THE INVIDIOUS DISCRIMINATION.  WE CANNOT SAY THAT THAT
POINT HAS BEEN REACHED HERE.  FOR ALL THIS RECORD SHOWS, THE READY-TO
WEAR BRANCH OF THIS BUSINESS MAY NOT LOOM LARGE IN OKLAHOMA OR MAY
PRESENT PROBLEMS OR REGULATION DISTINCT FROM THE OTHER BRANCH. 

THIRD, THE DISTRICT COURT HELD UNCONSTITUTIONAL, AS VIOLATIVE OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THAT PORTION OF SEC. 3
WHICH MAKES IT UNLAWFUL "TO SOLICIT THE SALE OF  ... FRAMES, MOUNTINGS
...  OR ANY OTHER OPTICAL APPLIANCES."  (FN3)  THE COURT CONCEDED THAT
STATE REGULATION OF ADVERTISING RELATING TO EYE EXAMINATIONS WAS A
MATTER "RATIONALLY RELATED TO THE PUBLIC HEALTH AND WELFARE" (120 F.
SUPP., AT 140) AND THEREFORE SUBJECT TO REGULATION WITHIN THE
PRINCIPLES OF SEMLER V. DENTAL EXAMINERS, SUPRA.  BUT REGULATION OF THE
ADVERTISING OF EYEGLASS FRAMES WAS SAID TO INTRUDE "INTO A MERCANTILE
FIELD ONLY CASUALLY RELATED TO THE VISUAL CARE OF THE PUBLIC" AND
RESTRICT "AN ACTIVITY WHICH IS NO WAY CAN DETRIMENTALLY AFFECT THE
PEOPLE."  120 F. SUPP., AT 140-141.  (FN4) 

AN EYEGLASS FRAME, CONSIDERED IN ISOLATION, IS ONLY A PIECE OF
MERCHANDISE.  BUT AN EYEGLASS FRAME IS NOT USED IN ISOLATION, AS JUDGE
MURRAH SAID IN DISSENT BELOW; IT IS USED WITH LENSES; AND LENSES,
PERTAINING AS THEY DO TO THE HUMAN EYE, ENTER THE FIELD OF HEALTH. 
THEREFORE, THE LEGISLATURE MIGHT CONCLUDE THAT TO REGULATE ONE
EFFECTIVELY IT WOULD HAVE TO REGULATE THE OTHER.  OR IT MIGHT CONCLUDE
THAT BOTH THE SELLERS OF FRAMES AND THE SELLERS OF LENSES WERE IN A
BUSINESS WHERE ADVERTISING SHOULD BE LIMITED OR EVEN ABOLISHED IN THE
PUBLIC INTEREST.  SEMLER V. DENTAL EXAMINERS, SUPRA.  THE ADVERTISER OF
FRAMES MAY BE USING HIS ADS TO BRING IN CUSTOMERS WHO WILL BUY LENSES. 
IF THE ADVERTISEMENT OF LENSES IS TO BE ABOLISHED OR CONTROLLED, THE
ADVERTISING OF FRAMES MUST COME UNDER THE SAME RESTRAINTS; OR SO THE
LEGISLATURE MIGHT THINK.  WE SEE NO CONSTITUTIONAL REASON WHY A STATE
MAY NOT TREAT ALL WHO DEAL WITH THE HUMAN EYE AS MEMBERS OF A
PROFESSION WHO SHOULD USE NO MERCHANDISING METHODS FOR OBTAINING
CUSTOMERS. 

FOURTH, THE DISTRICT COURT HELD UNCONSTITUTIONAL, AS VIOLATIVE OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THE PROVISION OF SEC. 4
OF THE OKLAHOMA ACT WHICH READS AS FOLLOWS: 

"NO PERSON, FIRM, OR CORPORATION ENGAGED IN THE BUSINESS OF RETAILING
MERCHANDISE TO THE GENERAL PUBLIC SHALL RENT SPACE, SUBLEASE
DEPARTMENTS, OR OTHERWISE PERMIT ANY PERSON PURPORTING TO DO EYE
EXAMINATION OR VISUAL CARE TO OCCUPY SPACE IN SUCH RETAIL STORE." 

IT SEEMS TO US THAT THIS REGULATION IS ON THE SAME CONSTITUTIONAL
FOOTING AS THE DENIAL TO CORPORATIONS OF THE RIGHT TO PRACTICE
DENTISTRY.  SEMLER V. DENTAL EXAMINERS, SUPRA, AT 611.  IT IS AN
ATTEMPT TO FREE THE PROFESSION, TO AS GREAT AN EXTENT AS POSSIBLE, FROM
ALL TAINTS OF COMMERCIALSIM.  IT CERTAINLY MIGHT BE EASY FOR AN
OPTOMETRIST WITH SPACE IN A RETAIL STORE TO BE MERELY A FRONT FOR THE
RETAIL ESTABLISHMENT.  IN ANY CASE, THE OPPORTUNITY FOR THAT NEXUS MAY
BE TOO GREAT FOR SAFETY, IF THE EYE DOCTOR IS ALLOWED INSIDE THE RETAIL
STORE.  MOREOVER, IT MAY BE DEEMED IMPORTANT TO EFFECTIVE REGULATION
THAT THE EYE DOCTOR BE RESTRICTED TO GEOGRAPHICAL LOCATIONS THAT REDUCE
THE TEMPTATIONS OF COMMERCIALISM.  GEOGRAPHICAL LOCATION MAY BE AN
IMPORTANT CONSIDERATION IN A LEGISLATIVE PROGRAM WHICH AIMS TO RAISE
THE TREATMENT OF THE HUMAN EYE TO A STRICTLY PROFESSIONAL LEVEL.  WE
CANNOT SAY THAT THE REGULATION HAS NO RATIONAL RELATION TO THAT
OBJECTIVE AND THEREFORE IS BEYOND CONSTITUTIONAL BOUNDS. 

WHAT WE HAVE SAID IS SUFFICIENT TO DISPOSE OF THE APPEAL IN NO. 185
FROM THE CONCLUSION OF THE DISTRICT COURT THAT THAT PORTION OF SEC. 3
WHICH MAKES IT UNLAWFUL TO SOLICIT THE SAME OF SPECTACLES, EYEGLASSES,
LENSES, AND PRISMS BY THE USE OF ADVERTISING MEDIA IS CONSTITUTIONAL. 

THE OTHER CONTENTIONS URGED BY APPELLANTS IN NO. 185 ARE WITHOUT
MERIT.  AFFIRMED IN PART AND REVERSED IN PART. 

FN1  SECTION 2 READS AS FOLLOWS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, FIRM, CORPORATION, COMPANY, OR
PARTNERSHIP NOT LICENSED UNDER THE PROVISIONS OF CHAPTER 11 OR CHAPTER
13 OF TITLE 59, OKLAHOMA STATUTES 1951, TO FIT, ADJUST, ADAPT, OR TO IN
ANY MANNER APPLY LENSES, FRAMES, PRISMS, OR ANY OTHER OPTICAL
APPLIANCES TO THE FACE OF A PERSON, OR TO DUPLICATE OR ATTEMPT TO
DUPLICATE, OR TO PLACE OR REPLACE INTO THE FRAMES, ANY LENSES OR OTHER
OPTICAL APPLIANCES WHICH HAVE BEEN PRESCRIBED, FITTED, OR ADJUSTED FOR
VISUAL CORRECTION, OR WHICH ARE INTENDED TO AID HUMAN VISION OR TO GIVE
ANY TREATMENT OR TRAINING DESIGNED TO AID HUMAN VISION, OR TO REPRESENT
OR HOLD HIMSELF OUT TO THE PUBLIC AS BEING QUALIFIED TO DO ANY OF THE
ACTS LISTED IN THIS SECTION, EXCEPT THAT PERSONS LICENSED UNDER THE
PROVISIONS OF CHAPTERS 11 OR 13 OF TITLE 59, OKLAHOMA STATUTES 1951 MAY
IN A WRITTEN PRESCRIPTION, OR ITS DUPLICATE, AUTHORIZE ANY OPTICAL
SUPPLIER TO INTERPRET SUCH PRESCRIPTION, AND WHO IN ACCORDANCE
THEREWITH MAY MEASURE, ADAPT, FIT, PREPARE, DISPENSE, OR ADJUST SUCH
LENSES, SPECTACLES, EYE GLASSES, PRISMS, TINTED LENSES, FRAMES OR
APPURTENANCES THERETO, TO THE HUMAN FACE FOR THE AID OR CORRECTION OF
VISUAL OR OCULAR ANOMALIES OF THE HUMAN EYE; AND MAY CONTINUE TO DO THE
SAID ACTS ON THE AFORESAID WRITTEN PRESCRIPTION, OR ITS DUPLICATE,
PROVIDED, HOWEVER, THAT THE PHYSICIAN OR OPTOMETRIST WRITING SUCH
PRESCRIPTION SHALL REMAIN RESPONSIBLE FOR THE FULL EFFECT OF THE
APPLIANCES SO FURNISHED BY SUCH OTHER PERSON.  PROVIDED THAT THIS
GLASSES." 

CHAPTER 11, TITLE 59, OKLA. STAT. 1951, PROVIDES FOR THE LICENSING OF
OPHTHALMOLOGISTS AND OTHER DOCTORS.  CHAPTER 13 PROVIDES FOR THE
CERTIFICATION OF OPTOMETRISTS. 

FN2  SECTION 3 READS AS FOLLOWS:    "IT SHALL BE UNLAWFUL FOR ANY
PERSON, FIRM, COMPANY, CORPORATION OR PARTNERSHIP TO SOLICIT THE SALE
OF SPECTACLES, EYE GLASSES, LENSES, FRAMES, MOUNTINGS, PRISMS OR ANY
OTHER OPTICAL APPLIANCES OR DEVICES, EYE EXAMINATIONS OR VISUAL
SERVICES, BY RADIO, WINDOW DISPLAY, TELEVISION, TELEPHONE DIRECTORY
DISPLAY ADVERTISEMENT, OR BY ANY OTHER MEANS OF ADVERTISEMENT; OR TO
USE ANY OTHER METHOD OR MEANS OF BAITING, PERSUADING, OR ENTICING THE
PUBLIC INTO BUYING SPECTACLES, EYE GLASSES, LENSES, FRAMES, MOUNTINGS,
PRISMS, OR OTHER OPTICAL APPLIANCES FOR VISUAL CORRECTION.  PROVIDED,
HOWEVER, THAT THE PROVISIONS OF THIS ACT SHALL NOT RENDER ANY NEWSPAPER
OR OTHER ADVERTISING MEDIA LIABLE FOR PUBLISHING ANY ADVERTISING
FURNISHED THEM BY A VENDOR OF SAID COMMODITY OR MATERIAL; NOR SHALL
ANYTHING IN THIS ACT PREVENT ETHICAL EDUCATION PUBLICITY OR ADVERTISING
BY LEGALLY QUALIFIED HEALTH GROUPS THAT DOES NOT VIOLATE PRESENTLY
EXISTING LAWS OF OKLAHOMA, NOR PREVENT THE PROPER USE OF ETHICAL,
PROFESSIONAL NOTICES.  NOTHING IN THIS ACT SHALL PROHIBIT THE SALE OF
READY-TO-WEAR GLASSES EQUIPPED WITH CONVEXSPHERICAL LENSES NOR
SUNGLASSES EQUIPPED WITH PLANO LENSES NOR INDUSTRIAL GLASSES AND
GOGGLES WITH PLANO LENSES USED FOR INDUSTRIAL EYE PROTECTION WHEN SOLD
AS MERCHANDISE AT ANY ESTABLISHED PLACES OF BUSINESS AND WHERE THE
SELECTION OF THE GLASSES IS AT THE DISCRETION OF THE PURCHASER." 

FN3  SEE NOTE 2, SUPRA. 

FN4  THE COURT ALSO SAID: 

"ADVERTISING DIRECTED EXCLUSIVELY AT THIS FEATURE OF EYE WEAR CAN
HAVE NO DELETERIOUS EFFECT ON THE PUBLIC, INASMUCH AS IT HAS NO
INFLUENCE ON THE PROSPECTIVE WEARER OF EYEGLASSES, AND TO THE PRESENT
WEARER (A PERSON ALREADY EXAMINED BY A LICENSED PROFESSIONAL) IS BUT A
MERE PIECE OF MERCHANDISE. 

"THE DISPENSING OPTICIAN, A MERCHANT IN THIS PARTICULAR, CANNOT
ARBITRARILY BE DIVESTED OF A SUBSTANTIAL PORTION OF HIS BUSINESS UPON
THE PRETEXT THAT SUCH A DEPRIVATION IS RATIONALLY RELATED TO THE PUBLIC
HEALTH."  120 F. SUPP., AT 142. 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :



FEDERAL POWER COMMISSION V. COLORADO INTERSTATE GAS CO. 348 U.S. 492 


NO. 45.  ARGUED JANUARY 31, 1955 - DECIDED MARCH 28, 1955 - 209 F.2D
717, 732, REVERSED. 


1.  ON A PETITION TO REVIEW A NATURAL GAS RATE REDUCTION ORDER OF THE
FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT, A COURT OF APPEALS
MAY NOT CONSIDER, SUA SPONTE, AN OBJECTION WHICH HAS NOT BEEN URGED
BEFORE THE COMMISSION IN THE APPLICATION FOR REHEARING PRESCRIBED BY
SEC. 19 OF THE ACT.  PP. 493-501. 

(A)  RESPONDENT'S APPLICATION FOR A REHEARING BY THE COMMISSION DID
NOT OBJECT TO THE VALIDITY OF THE CONDITION WHICH THE COMMISSION HAD
WRITTEN INTO ITS CERTIFICATION OF A MERGER BETWEEN RESPONDENT AND
ANOTHER GAS COMPNAY; AND RESPONDENT THUS DID NOT MEET THE REQUIREMENTS
OF SEC. 19(B).  PP. 497-498. 

(B) RESPONDENT'S APPLICATION NOT HAVING MET THE REQUIREMENTS OF SEC.
19(B) AND RESPONDENT ITSELF BEING BARRED FROM ATTACKING THE VALIDITY OF
THE MERGER CONDITION IN THE COURT OF APPEALS, THAT COURT IS PRECLUDED,
BY THE TERMS OF SEC. 19, FROM RAISING, CONSIDERING OR SUSTAINING THE
SAME OBJECTION SUA SPONTE.  PP. 498-499. 

(C)  SECTION 10(E) OF THE ADMINISTRATIVE PROCEDURE ACT DOES NOT
REQUIRE A DIFFERENT RESULT.  PP. 499-500. 

(D)  THE REQUIREMENTS OF SEC. 19(B) CANNOT BE DISREGARDED UNDER A
CLAIM THAT TO LIMIT JUDICIAL REVIEW BY THE COURT OF APPEALS TO
OBJECTIONS PREVIOUSLY URGED SPECIFICALLY BEFORE THE COMMISSION WILL
PREVENT THAT COURT FROM REVIEWING EFFECTIVELY THE "END RESULT" OF
NATURAL GAS RATE ORDERS.  P. 501. 

2.  ON A PETITION TO REVIEW A NATURAL GAS RATE REDUCTION ORDER OF THE
FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT, A COURT OF APPEALS
MAY NOT INVALIDATE, SUA SPONTE, AN EXISTING ORDER OF THE COMMISSION,
WHICH PROHIBITS THE INCLUSION OF CERTAIN OPERATING EXPENSES OF THE
NATURAL GAS COMPANY IN ITS COST OF SERVICE, WHERE SUCH ORDER NOT ONLY
HAS BEEN PROPOSED AND ACQUIESCED IN BY THE COMPANY, BUT HAS BEEN
IMPOSED ON IT BY THE COMMISSION AS A CONDITION OF A MERGER UNDER WHICH
THE COMPANY IS OPERATING.  PP. 493-494, 501-502. 

3.  A CONTENTION OF RESPONDENT THAT, UNDER THE COMMISSION'S
ALLOCATION OF GASOLINE COSTS AND THE CONDITION REQUIRING THE COMPANY TO
ABSORB THEM, THE RATE OF RETURN IS REDUCED FROM 5.75% TO 5.01%, AND IS
THEREFORE UNREASONABLE AND CONFISCATORY, IS NOT SUSTAINED.  P. 502. 

FEDERAL POWER COMMISSION V. COLORADO INTERSTATE GAS CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION BEFORE US IS WHETHER, ON A PETITION TO REVIEW
A NATURAL GAS RATE REDUCTION ORDER OF THE FEDERAL POWER COMMISSION, A
COURT OF APPEALS MAY CONSIDER, SUA SPONTE, AN OBJECTION WHICH HAS NOT
BEEN URGED BEFORE THE COMMISSION IN THE APPLICATION FOR REHEARING
PRESCRIBED BY SEC. 19 OF THE NATURAL GAS ACT.  (FN1)  ALTERNATIVELY, A
QUESTION ALSO IS RAISED WHETHER, IN SUCH A RATE PROCEEDING, A COURT OF
APPEALS MAY INVALIDATE, SUA SPONTE, AN EXISTING ORDER OF THE
COMMISSION, WHICH PROHIBITS THE INCLUSION OF CERTAIN OPERATING EXPENSES
OF THE NATURAL GAS COMPANY IN ITS COST OF SERVICE, WHERE SUCH ORDER NOT
ONLY HAS BEEN PROPOSED AND ACQUIESCED IN BY THE COMPANY, BUT HAS BEEN
IMPOSED ON IT BY THE COMMISSION AS A CONDITION OF A MERGER UNDER WHICH
THE COMPANY IS OPERATING.  FOR THE REASONS HEREAFTER STATED, WE ANSWER
EACH OF THESE QUESTIONS IN THE NEGATIVE. 

IN 1948, THE FEDERAL POWER COMMISSION, PETITIONER HEREIN, INSTITUTED
A RATE INVESTIGATION AGAINST RESPONDENT, THE COLORADO INTERSTATE GAS
COMPANY, UNDER SEC. 5(A) OF THE NATURAL GAS ACT, 52 STAT. 823-824, 15
U.S.C. SEC. 717DA).  WHILE THIS WAS PENDING, RESPONDENT AND THE
CANADIAN RIVER GAS COMPANY FILED A JOINT APPLICATION UNDER SEC. 7 OF
THE SAME ACT, 52 STAT. 824-825, AS AMENDED, 15 U.S.C. SEC. 717F.  THAT
APPLICATION SOUGHT A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
PERMITTING RESPONDENT TO MERGE WITH THE LATTER COMPANY, ACQUIRE AND
OPERATE ITS PROPERTIES, AND CONSTRUCT ADDITIONAL FACILITIES.  OBJECTION
WAS MADE THAT CONSUMERS, RECEIVING NATURAL GAS FROM RESPONDENT, MIGHT
BE FORCED BY THIS MERGER TO SHARE RESPONDENT'S LOSS IF THE COSTS OF
CERTAIN GASOLINE OPERATIONS TO BE UNDERTAKEN BY IT EXCEEDED ITS
REVENUES FROM THEM.  TO MEET THIS OBJECTION, RESPONDENT PROPOSED THAT
THE COMMISSION, IN ANY NATURAL GAS RATE PROCEEDING, EXCLUDE SUCH LOSS
FROM THE COMPANY'S COST OF SERVICE.  (FN2) 

MARCH 1, 1951, THE COMMISSION WROTE IN THE ABOVE PROPOSAL AS A
CONDITION OF ITS CERTIFICATION OF THE MERGER.  10 F.P.C. 105, 778. 
(FN3)  NO REVIEW WAS SOUGHT.  THE MERGER WAS CONSUMMATED AND RESPONDENT
HAS ENJOYED ITS BENEFITS SINCE DECEMBER 31, 1951. 

THE RATE INVESTIGATION WAS RESUMED IN 1951 AND THE YEAR 1952 BECAME
THE TEST YEAR.  THE USUAL INTERMEDIATE DECISION WAS OMITTED AND, ON
AUGUST 8, 1952, THE COMMISSION ISSUED ITS FINDINGS AND RATE ORDER.  95
P.U.R. (N.S.)  97.  IN THAT PROCEEDING, RESPONDENT HAD ARGUED FOR A
"VOLUMETRIC" ALLOCATION OF GASOLINE COSTS WHICH, IN 1952, WOULD RESULT
IN A SHOWING OF NO LOSS SUFFERED BY IT FROM THE GASOLINE OPERATIONS IN
QUESTION.  THE COMMISSION, HOWEVER, HAD DECLINED TO ADOPT THAT METHOD
AND HAD APPLIED A "RELATIVE MARKET VALUE METHOD" OF ALLOCATING COSTS. 
THIS SHOWED A LOSS OF $421,537 FROM SUCH OPERATIONS AND, PURSUANT TO
ITS MERGER ORDER, THE COMMISSION HELD THAT SUCH LOSS "SHALL NOT BE
CONSIDERED AS A PART OF THE COST OF SERVICE WHICH WE HAVE HERETOFORE
DETERMINED."  ON THAT BASIS, THE COMMISSION FOUND RESPONDENT'S TOTAL
COST OF SERVICE, IN 1952, TO BE $14,952,567, INCLUDING FEDERAL TAXES OF
$185,599 AND THE PROCEEDS OF A 5.75% RATE OF RETURN ($3,280,317 ON A
RATE BASE OF $57,048,988).  DEDUCTING THAT COST FROM ITS GAS SERVICE
REVENUES OF $17,962,532 LEFT RESPONDENT WITH EXCESS REVENUES OF OVER
$3,000,000.  THE COMMISSION ACCORDINGLY ORDERED A RATE REDUCTION
ELIMINATING THAT EXCESS.  ID., AT 127. 

RESPONDENT APPLIED FOR A REHEARING PURSUANT TO SEC. 19(A) OF THE
NATURAL GAS ACT.  THE APPLICATION STATED RESPONDENT'S OBJECTIONS TO THE
COMMISSION'S ALLOCATION OF THE EXPENSE OF THE GASOLINE OPERATIONS AND A
CLAIM THAT, IF THE COSTS WERE PROPERLY ALLOCATED, THERE WOULD BE NO
RESULTING LOSS.   RESPONDENT COMPLAINED FURTHER THAT THE COMMISSION'S
COMPUTATION, IN EFFECT, REDUCED THE COMPANY'S RATE OF RETURN FROM 5.75%
TO 5.01%.  AT NO POINT DID RESPONDENT CONTEND THAT THE COMMISSION'S
ORDER EXCLUDING RESPONDENT'S LOSS FROM GASOLINE OPERATIONS FROM ITS
COST OF SERVICE WAS INVALID.  UPON CONSIDERATION OF THE APPLICATION,
THE COMMISSION DENIED THE REHEARING AND MODIFIED THE NEW RATES ONLY TO
A SLIGHT DEGREE NOT MATERIAL HERE. 

ON RESPONDENT'S PETITION FOR REVIEW BY THE COURT OF APPEALS FOR THE
TENTH CIRCUIT, THAT COURT GENERALLY UPHELD THE COMMISSION'S FINDINGS
AND ORDER.  IT ACCEPTED THE COMMISSION'S METHOD OF ALLOCATING
RESPONDENT'S GASOLINE COSTS AND THE COMPUTATION WHICH FIXED THE
RESULTING LOSS AT $421,537.  HOWEVER, THE COURT HELD, SUA SPONTE, THAT,
DESPITE THE ACTION TAKEN IN THE MERGER PROCEEDING, THIS LOSS MUST BE
ADDED TO RESPONDENT'S COST OF SERVICE.  THE COURT THEREFORE REVERSED
THE COMMISSION'S ORDER AND REMANDED THE CAUSE FOR FURTHER PROCEEDINGS. 
209 F.2D 717.  AFTER REARGUMENT, THE COURT REAFFIRMED ITS POSITION. 
209 F.2D 732.  RECOGNIZING THE IMPORTANCE OF SUCH A RESULT IN RELATION
TO THE JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS, WE GRANTED THE
COMMISSION'S PETITION FOR CERTIORARI BUT DENIED RESPONDENT'S CROSS
PETITION.  347 U.S. 1009; 348 U.S. 818, 884.  28 U.S.C. SEC. 1254(1);
52 STAT. 831-832, 15 U.S.C. SEC. 717RB). 

THE NATURAL GAS ACT PRESCRIBES EXPLICITLY THE PROCEDURE TO BE
FOLLOWED BY ANY PERSON SEEKING JUDICIAL REVIEW OF AN ORDER OF THE
FEDERAL POWER COMMISSION, AND LIMITS THE SCOPE OF THAT REVIEW AS
FOLLOWS: 

"SEC. 19.  (A)  ANY PERSON  ...  AGGRIEVED BY AN ORDER ISSUED BY THE
FEDERAL POWER COMMISSION IN A PROCEEDING UNDER THIS ACT TO WHICH SUCH
PERSON  ...  IS A PARTY MAY APPLY FOR A REHEARING WITHIN THIRTY DAYS
AFTER THE ISSUANCE OF SUCH ORDER.  THE APPLICATION FOR REHEARING SHALL
SET FORTH SPECIFICALLY THE GROUND OR GROUNDS UPON WHICH SUCH
APPLICATION IS BASED  ...  .  NO PROCEEDING TO REVIEW ANY ORDER OF THE
COMMISSION SHALL BE BROUGHT BY ANY PERSON UNLESS SUCH PERSON SHALL HAVE
MADE APPLICATION TO THE COMMISSION FOR A REHEARING THEREON. 

"(B)  ...  NO OBJECTION TO THE ORDER OF THE COMMISSION SHALL BE
CONSIDERED BY THE COURT OF APPEALS UNLESS SUCH OBJECTION SHALL HAVE
BEEN URGED BEFORE THE COMMISSION IN THE APPLICATION FOR REHEARING
UNLESS THERE IS REASONABLE GROUND FOR FAILURE SO TO DO  ... ."  52
STAT. 831-832, 15 U.S.C. SEC. 717RA) AND (B). 

RESPONDENT FIRST CONTENDS THAT ITS APPLICATION FOR A REHEARING BY THE
COMMISSION DID, IN SUBSTANCE, OBJECT TO THE VALIDITY OF THE MERGER
CONDITION AND THUS DID MEET THE REQUIREMENTS OF SEC. 19(B).  WE FIND,
HOWEVER, THAT IN SUCH APPLICATION, RESPONDENT OBJECTED TO THE EXCLUSION
OF THE LOSS OF $421,537 FROM GASOLINE OPERATIONS MERELY ON THE GROUND
THAT THE COMMISSION'S CERTIFICATE APPROVING THE MERGER REQUIRED A
"PROPER ALLOCATION" OF THE COSTS, AND THAT THE METHOD OF ALLOCATION
CHOSEN BY THE COMMISSION WAS NOT "PROPER."  RESPONDENT ALSO
UNSUCCESSFULLY PROPOSED AN ALTERNATIVE METHOD OF ALLOCATION, WHICH
WOULD ELIMINATE THE LOSS.  IN PASSING UPON THESE CONTENTIONS, THE
COMMISSION ASSUMED, AS DID RESPONDENT, THAT ANY PROPERLY COMPUTED LOSS
RESULTING FROM THE GASOLINE OPERATIONS WAS TO BE EXCLUDED FROM THE COST
OF SERVICE.  RESPONDENT'S OBJECTION THUS GAVE NO NOTICE THAT RESPONDENT
WAS ATTACKING THE VALIDITY OF THE MERGER CONDITION.  THE SAME IS TRUE
OF RESPONDENT'S OBJECTION TO THE COMMISSION'S TREATMENT OF ITS INCOME
TAXES, AND OF RESPONDENT'S CLAIM THAT THE ULTIMATE EFFECT OF THE
COMMISSION'S ORDER WAS TO REDUCE ITS NET SHARE OF THE PROCEEDS OF THE
RATE OF RETURN FROM ONE OF 5.75% TO ONE OF 5.01%.  THESE WERE BIDS FOR
A HIGHER RATE OF RETURN OR FOR A RECOMPUTATION OF THE LOSS FROM THE
GASOLINE OPERATIONS, NOT CLAIMS THAT THE MERGER CONDITION WAS INVALID. 

RESPONDENT'S SECOND AND PRINCIPAL CONTENTION IS THAT, ALTHOUGH ITS
APPLICATION DID NOT MEET THE REQUIREMENTS OF SEC. 19(B) AND IT
THEREFORE IS BARRED FROM ATTACKING THE VALIDITY OF THE MERGER CONDITION
IN THE COURT OF APPEALS, NOTHING PRECLUDES THAT COURT ITSELF FROM
RAISING, CONSIDERING AND SUSTAINING THE SAME OBJECTION, SUA SPONTE. 
RESPONDENT'S ERROR APPEARS ON THE FACE OF THE STATUTE.  SECTION 19(A)
FIRST PRECLUDES THE BRINGING OF ANY PROCEEDING IN A COURT OF APPEALS TO
REVIEW AN ORDER OF THE COMMISSION, UNLESS THE PERSON BRINGING IT
PREVIOUSLY HAS APPLIED TO THE COMMISSION FOR A REHEARING ON THAT
ORDER.  SECTION 19(B) THEN EXPRESSLY PRECLUDES THE CONSIDERATION BY THE
COURT OF ANY OBJECTION TO AN ORDER OF THE COMMISSION, UNLESS THE
OBJECTION SHALL HAVE BEEN URGED BEFORE THE COMMISSION IN THE
APPLICATION FOR REHEARING.  AS THE COURT IS THUS EXPRESSLY PRECLUDED
FROM CONSIDERING AN OBJECTION WHEN, WITHOUT PRIOR APPLICATION TO THE
COMMISSION, THAT OBJECTION IS PRESENTED TO THE COURT BY THE PARTY
DIRECTLY AGGRIEVED, (FN4) IT CANNOT BE ASSUMED THAT CONGRESS INTENDED
TO PERMIT THE SAME COURT TO CONSIDER THE SAME OBJECTION, UNDER THE SAME
CIRCUMSTANCES, SUA SPONTE, MERELY BECAUSE THE OBJECTION WAS NOT
PRESENTED TO THE COURT BY THE PARTY AGGRIEVED.  SECTION 19(B) REFLECTS
THE POLICY THAT A PARTY MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BEFORE
SEEKING JUDICIAL REVIEW.  TO ALLOW A COURT OF APPEALS TO INTERVENE HERE
ON ITS OWN MOTION WOULD SERIOUSLY UNDERMINE THE PURPOSE OF THE EXPLICIT
REQUIREMENTS OF SEC. 19(B) THAT OBJECTIONS MUST FIRST COME BEFORE THE
COMMISSION. 

DIFFERENT RESULT.  (FN5) THAT ACT PURPORTS TO STRENGTHEN, RATHER THAN
TO WEAKEN, THE PRINCIPLE REQUIRING THE EXHAUSTION OF ADMINISTRATIVE
REMEDIES BEFORE PERMITTING COURT REVIEW.  THE SENATE COMMITTEE,
RECOMMENDING THE BILL FOR THAT ACT, SAID: 

"A PARTY CANNOT WILFULLY FAIL TO EXHAUST HIS ADMINISTRATIVE REMEDIES
AND THEN, AFTER THE AGENCY ACTION HAS BECOME OPERATIVE, EITHER SECURE A
SUSPENSION OF THE AGENCY ACTION BY A BELATED APPEAL TO THE AGENCY, OR
RESORT TO COURT WITHOUT HAVING GIVEN THE AGENCY AN OPPORTUNITY TO
DETERMINE THE QUESTIONS RAISED.  IF HE SO FAILS HE IS PRECLUDED FROM
JUDICIAL REVIEW BY THE APPLICATION OF THE TIME-HONORED DOCTRINE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES  ...  ."  S. DOC. NO. 248, 79TH
CONG., 2D SESS. 289, N. 21. 

FURTHERMORE, SEC. 10, BY ITS OWN TERMS, IS MADE INAPPLICABLE IN "SO
FAR AS (1) STATUTES AS HERE PRECLUDE JUDICIAL REVIEW," AND SEC. 10(E)
APPLIES ONLY TO SITUATIONS WHERE THE QUESTION AT ISSUE HAS BEEN
PROPERLY "PRESENTED," AS HAS NOT BEEN DONE HERE.  IT IS NOT A
REASONABLE INTERPRETATION OF THE GENERAL TERMS OF THAT ACT TO HOLD THAT
THEY REPEAL THE ADMINISTRATIVE PROCEDURES SPECIFICALLY SET FORTH IN THE
NATURAL GAS ACT. 

"WE HAVE RECOGNIZED IN MORE THAN A FEW DECISIONS, AND CONGRESS HAS
RECOGNIZED IN MORE THAN A FEW STATUTES, THAT ORDERLY PROCEDURE AND GOOD
ADMINISTRATION REQUIRE THAT OBJECTIONS TO THE PROCEEDINGS OF AN
ADMINISTRATIVE AGENCY BE MADE WHILE IT HAS OPPORTUNITY FOR CORRECTION
IN ORDER TO RAISE ISSUES REVIEWABLE BY THE COURTS."  UNITED STATES V.
TUCKER TRUCK LINES, 344 U.S. 33, 36-37.  SEE ALSO, RISS & CO. V. UNITED
STATES, 341 U.S. 907; WONG YANG SUNG V. MCGRATH, 339 U.S. 33; UNITED
STATES V. CAPITAL TRANSIT CO., 338 U.S. 286, 291; UNEMPLOYMENT
COMPENSATION COMMISSION V. ARAGON, 329 U.S. 143, 155. 

THE NECESSITY FOR PRIOR ADMINISTRATIVE CONSIDERATION OF AN ISSUE IS
APPARENT WHERE, AS HERE, ITS DECISION CALLS FOR THE APPLICATION OF
TECHNICAL KNOWLEDGE AND EXPERIENCE NOT USUALLY POSSESSED BY JUDGES. 
THE FEDERAL POWER COMMISSION IS AN ADMINISTRATIVE AGENCY THE DECISIONS
OF WHICH INVOLVE THOSE DIFFICULT PROBLEMS OF POLICY, ACCOUNTING,
ECONOMICS AND SPECIAL KNOWLEDGE THAT GO INTO PUBLIC UTILITY RATE
MAKING.  FOR REVIEWING A RATE MADE BY THE FEDERAL POWER COMMISSION, THE
COURT OF APPEALS HAS NO INHERENT SUITABILITY COMPARABLE TO THAT WHICH
IT HAS FOR REVIEWING THE JUDICIAL DECISIONS MADE BY A UNITED STATES
DISTRICT COURT. 

RESPONDENT FURTHER SUGGESTS THAT TO LIMIT THE JUDICIAL REVIEW OF THE
COURT OF APPEALS TO THOSE OBJECTIONS WHICH HAVE BEEN URGED SPECIFICALLY
BEFORE THE COMMISSION PREVENTS THAT COURT FROM REVIEWING EFFECTIVELY
THE "END RESULT" OF THE RATE ORDER.  SEE FEDERAL POWER COMMISSION V.
HOPE NATURAL GAS CO., 320 U.S. 591.  TO ACCEPT THAT ARGUMENT WOULD WIPE
OUT AT A SINGLE STROKE THE EXPRESSLY PRESCRIBED POLICY OF SEC. 19(B). 
NOT ONLY WOULD SUCH ACCEPTANCE BE CONTRARY TO THE TERMS OF THE STATUTE,
BUT IT WOULD FAIL TO RECOGNIZE THE FUNDAMENTAL CONSIDERATION THAT IT IS
NOT THE FUNCTION OF A COURT ITSELF TO ENGAGE IN RATE MAKING. 

RETURNING TO THE LANGUAGE OF SEC. 19, WE HOLD THAT THE COURT OF
APPEALS DOES NOT HERE HAVE AUTHORITY, EITHER UNDER SEC. 19 OR SUA
SPONTE, TO REVERSE THE COMMISSION BY OVERRULING ITS EXCLUSION OF
$421,537 OF GASOLINE PRODUCTION EXPENSE FROM RESPONDENT'S COST OF
SERVICE FOR RATE PURPOSES. 

AS AN ALTERNATIVE GROUND FOR REVERSAL, THE COMMISSION ALSO CONTENDS
THAT THE COURT OF APPEALS IS HERE PRECLUDED FROM REDETERMINING THE
VALIDITY OF THE MERGER CONDITION BECAUSE OF RESPONDENT'S AND THE
COMMISSION'S PREVIOUS CONDUCT IN APPROVING IT.  CF. UNITED STATES V.
HANCOCK TRUCK LINES, 324 U.S. 774, 778-780.  IN 1950, RESPONDENT
PROPOSED THIS CONDITION IN ITS MERGER PROCEEDING.  THAT MERGER HAD MANY
FACETS AND A DIFFERENCE OF OPINION EXISTED WITHIN THE COMMISSION ON ITS
MERITS.  10 F.P.C. 105, 119.  IN 1951, THE CONDITION BEFORE US BECAME
AN IMPORTANT FACTOR IN SECURING THE COMMISSION'S FINDING THAT THE
MERGER WOULD BE IN THE PUBLIC INTEREST.  ID., AT 780.  AFTER THE MERGER
WAS APPROVED ON THAT CONDITION, RESPONDENT SOUGHT NO REVIEW OF IT.  ON
THE OTHER HAND, RESPONDENT CONSUMMATED THE MERGER AND HAS ENJOYED ITS
BENEFITS EVER SINCE.  IT CANNOT NOW BE ALLOWED TO ATTACK AN OFFICIALLY
APPROVED CONDITION OF THE MERGER WHILE RETAINING AT THE SAME TIME ALL
OF ITS BENEFITS.  THE IMPROPRIETY OF THE ATTACK IS RENDERED TWOFOLD
BECAUSE IT IS NOT MADE IN THE MERGER PROCEEDING BUT IS ATTEMPTED IN A
SEPARATE RATE PROCEEDING.  WHILE RESPONDENT ALSO CHARGES THAT, UNDER
THE COMMISSION'S ALLOCATION OF GASOLINE COSTS AND THE CONDITION
REQUIRING THE COMPANY TO ABSORB THEM, THE RATE OF RETURN IS REDUCED
FROM 5.75% TO 5.01% AND IS THEREFORE UNREASONABLE AND CONFISCATORY, WE
DO NOT SUSTAIN THAT CHARGE. 

THE JUDGMENT OF THE COURT OF APPEALS ACCORDINGLY IS REVERSED. 

FN1  52 STAT. 831-832, AS AMENDED, 15 U.S.C. SEC. 717R.  THE MATERIAL
PROVISIONS OF SEC.  19(A) AND (B) ARE SET FORTH IN THE BODY OF THIS
OPINION AT P. 497, INFRA.  FOR RELATED LITIGATION NOT MATERIAL TO THE
ISSUES NOW PRESENTED, SEE COLORADO INTERSTATE GAS CO. V. FEDERAL POWER
COMMISSION, AND CANADIAN RIVER GAS CO. V. FEDERAL POWER COMMISSION, 324
U.S. 581, AND COLORADO-WYOMING GAS CO. V. FEDERAL POWER COMMISSION, 324
U.S. 626. 

FN2  THE PROPOSAL IN RESPONDENT'S LETTER OF JUNE 8, 1950, TO THE
COMMISSION, WAS THAT "IN ORDER TO KEEP A RATE PAYER FROM MEETING THIS
DEFICIENCY THE COMMISSION COULD CONDITION THE CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY SO AS IN EFFECT TO PROVIDE THAT SUCH DEFICIT
WOULD NOT BE CONSIDERED IN DETERMINING REASONABLE RATES.  IN OTHER
WORDS, THE STOCKHOLDERS OF COLORADO INTERSTATE GAS COMPANY WOULD TAKE
THE RISK AS TO WHETHER OR NOT GASOLINE PRICES WILL GO DOWN." 

FN3  "(I)  THE AUTHORIZATION HEREIN GRANTED FOR EFFECTUATING THE
ACQUISITION AND OPERATION OF CANADIAN'S PROPERTIES AND FACILITIES IS
UPON THE EXPRESS UNDERSTANDING AND CONDITION THAT IF, AS A RESULT OF
CARRYING OUT THE TERMS AND CONDITIONS IN THE TRANSACTION PROPOSED AS A
PART OF THE ACQUISITION AND MERGER OF CANADIAN INTO COLORADO WHEREBY
RIGHTS TO LIQUID HYDROCARBONS IN PLACE ARE GRANTED TO SOUTHWESTERN
DEVELOPMENT CO. AND WHEREBY COLORADO IS TO RECEIVE 50 PERCENT OF THE
GROSS PROCEEDS FROM THE SALE OF CERTAIN LIQUID HYDROCARBONS AND 15
PERCENT OF THE NET REVENUE TO BE RECEIVED BY COLORADO FROM THE
HYDROCARBONS RESULTING FROM THE OPERATION OF FRITSCH NATURAL GASOLINE
PLANT OF TEXOMA NATURAL GAS CO., THE COSTS PROPERLY ALLOCABLE TO SUCH
HYDROCARBONS EXCEED THE AMOUNTS PAYABLE TO COLORADO PURSUANT TO SUCH
TRANSACTION, THEN AND IN THAT CASE IN ANY PROCEEDING IN WHICH THE
EFFECTIVE OR PROPOSED RATES OF COLORADO ARE UNDER INQUIRY SUCH EXCESS
SHALL NOT BE CONSIDERED AS A COST OF SERVICE TO COLORADO'S NATURAL GAS
CUSTOMERS AND CONSUMERS."  10 F.P.C., AT 780. 

FN4  "  ...  PETITIONER, MOREOVER, FAILED TO OBJECT IN ITS
APPLICATION FOR REHEARING BEFORE THE COMMISSION TO THE INCLUSION OF ITS
PRODUCING PROPERTIES AND GATHERING FACILITIES IN THE RATE BASE.  IT IS
ACCORDINGLY PRECLUDED BY SEC. 19(B) OF THE ACT FROM ATTACKING THE ORDER
OF THE COMMISSION ON THE GROUND THAT THEY ARE INCLUDED."  PANHANDLE CO.
V. FEDERAL POWER COMMISSION, 324 U.S. 635, 649, AND SEE 650-651.  SEE
ALSO, LABOR BOARD V. CHENEY LUMBER CO., 327 U.S. 385, 388-389, AND
LABOR BOARD V. SEVEN-UP CO., 344 U.S. 344, WHERE FAILURE TO PRESERVE
THE ISSUE BY OBJECTION BEFORE THE AGENCY WAS TREATED AS A BAR TO THE
JUDICIAL CONSIDERATION OF IT. 

FN5  "SEC.  10.  EXCEPT SO FAR AS (1) STATUTES PRECLUDE JUDICIAL
REVIEW OR (2) AGENCY ACTION IS BY LAW COMMITTED TO AGENCY DISCRETION: 

     *         *         *         *         * 

"(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, FINDING,
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. 243-244, 5 U.S.C. SEC.  1009(E). 

MR. JUSTICE HARLAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




WITMER V. UNITED STATES 348 U.S. 375 


NO. 164.  ARGUED FEBRUARY 1, 1955 - DECIDED MARCH 14, 1955 - 213 F.2D
95, AFFIRMED. 


1.  PETITIONER, A MEMBER OF JEHOVAH'S WITNESSES, WAS CONVICTED OF
FAILING TO SUBMIT TO INDUCTION INTO THE ARMED FORCES IN VIOLATION OF
SEC. 12(A) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT.   HELD:
ON THE RECORD IN THIS CASE, THIS COURT CANNOT FIND THAT THERE WAS NO
BASIS IN FACT FOR THE APPEAL BOARD'S DECISION DENYING PETITIONER
CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR; AND HIS CONVICTION IS
AFFIRMED.  DICKINSON V. UNITED STATES, 346 U.S. 389, DISTINGUISHED. 
PP. 376-383. 

(A)  IN CONSCIENTIOUS OBJECTOR CASES, THE ULTIMATE QUESTION IS THE
SINCERITY OF THE REGISTRANT IN OBJECTING, ON RELIGIOUS GROUNDS, TO
PARTICIPATION IN WAR IN ANY FORM.  PP. 381-382. 

(B)  PETITIONER'S INCONSISTENT STATEMENTS WERE SUFFICIENT TO CAST
DOUBT ON THE SINCERITY OF HIS CLAIM.  PP. 382-383. 

2.  AFTER PETITIONER'S APPLICATION FOR CLASSIFICATION AS A FARMER AND
A CONSCIENTIOUS OBJECTOR HAD BEEN DENIED, HE APPLIED TO THE LOCAL BOARD
FOR CLASSIFICATION AS A MINISTER OF THE GOSPEL AND APPEARED BEFORE THE
BOARD AND SUBMITTED EVIDENCE IN SUPPORT OF THIS CLAIM.  BEFORE
FORWARDING THE CASE TO THE APPEAL BOARD, THE LOCAL BOARD IN FACT
CONSIDERED THIS CLAIM AND ADVISED PETITIONER OF HIS CONTINUANCE IN THE
I-A CLASSIFICATION.  HELD: THIS SATISFIED THE REQUIREMENT OF SEC.
1624.2(B) AND (C) OF THE SELECTIVE SERVICE REGULATIONS THAT THE CASE BE
REOPENED AND THE REGISTRANT RECLASSIFIED, THOUGH THE BOARD'S RECORDS
DID NOT USE THE WORDS "REOPEN" OR "RECLASSIFY."  PP. 383-384. 

WITMER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PETITIONER WAS CONVICTED OF FAILING TO SUBMIT TO INDUCTION INTO THE
ARMED FORCES IN VIOLATION OF SEC. 12(A) OF THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT.  115 F. SUPP. 19.  THE COURT OF APPEALS
AFFIRMED.  213 F.2D 95.  THIS COURT GRANTED CERTIORARI.  348 U.S. 812. 
AFFIRMED, P. 384. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A MEMBER OF THE JEHOVAH'S WITNESSES, STANDS CONVICTED OF
FAILING TO SUBMIT TO INDUCTION INTO THE ARMED FORCES IN VIOLATION OF
SEC. 12(A) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 62 STAT.
622, 50 U.S.C. APP. SEC. 462(A).  ON TRIAL, HE CENTERED HIS DEFENSE ON
THE CONTENTION THAT HE WAS WRONGFULLY DENIED EXEMPTION AS A
CONSCIENTIOUS OBJECTOR.  THIS TERM, WE HAVE BEEN ASKED TO REVIEW A
RELATIVELY LARGE NUMBER OF CRIMINAL PROSECUTIONS INVOLVING VARIOUS
PROCEDURAL AND SUBSTANTIVE PROBLEMS ENCOUNTERED IN EFFECTUATING THE
CONGRESSIONAL POLICY OF EXEMPTING CONSCIENTIOUS OBJECTORS FROM MILITARY
SERVICE.  WE HAVE GRANTED PETITIONS FOR CERTIORARI IN THIS AND THE
THREE FOLLOWING CASES TO CONSIDER CERTAIN OF THE PROBLEMS RECURRING IN
THESE PROSECUTIONS.  (FN1) 

STAT. 612, AS AMENDED, 50 U.S.C. APP. SEC. 456(J), PROVIDES THAT NO
PERSON WHO, "BY REASON OF RELIGIOUS TRAINING AND BELIEF, IS
CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN ANY FORM," SHALL BE
REQUIRED TO UNDERGO COMBATANT TRAINING OR SERVICE IN THE ARMED FORCES. 
THE CONSCIENTIOUS OBJECTOR, TO PROVE HIS CLAIM, FILLS OUT A
QUESTIONNAIRE IN WHICH HE MAKES A SHORT STATEMENT OF HIS RELIGIOUS
BELIEFS AND CITES EVIDENCE, SUCH AS PRIOR PUBLIC EXPRESSION OF HIS
VIEWS, TO DEMONSTRATE HIS SINCERITY.  IF, ON THE BASIS OF THIS AND A
PERSONAL INTERVIEW, THE LOCAL BOARD DECIDES THAT THE REQUISITE BELIEFS
ARE SINCERELY HELD, THE REGISTRANT WILL BE CLASSIFIED A CONSCIENTIOUS
OBJECTOR.  IF THE LOCAL BOARD DENIES THE CLAIM, THE REGISTRANT HAS A
RIGHT OF APPEAL TO THE APPEAL BOARD.  THAT BOARD, BEFORE REACHING A
FINAL DECISION, REFERS THE REGISTRANT'S FILE TO THE DEPARTMENT OF
JUSTICE FOR "INQUIRY AND HEARING."  AS THE FIRST STEP IN THIS AUXILIARY
PROCEDURE, THE FEDERAL BUREAU OF INVESTIGATION INVESTIGATES THE
REGISTRANT'S CLAIM AND REFERS ITS REPORT TO A HEARING OFFICER OF THE
DEPARTMENT OF JUSTICE.  THE REGISTRANT MAY THEN APPEAR BEFORE THIS
OFFICER TO PRESENT EVIDENCE AND WITNESSES IN HIS BEHALF.  AFTER THIS,
THE HEARING OFFICER MAKES A REPORT TO HIS SUPERIORS IN THE DEPARTMENT
OF JUSTICE, SUGGESTING A DISPOSITION OF THE CASE.  THE DEPARTMENT,
AFTER REVIEWING THE REGISTRANT'S FILE, THE FBI REPORT AND THE REPORT OF
THE HEARING OFFICER, WRITES A SHORT RECOMMENDATION, STATING ITS REASONS
AND WHETHER IT HAS CONCURRED IN OR OVERRULED THE SUGGESTION OF THE
HEARING OFFICER.  THIS RECOMMENDATION OF THE DEPARTMENT OF JUSTICE IS
TRANSMITTED TO THE APPEAL BOARD AND PLACED IN THE REGISTRANT'S FILE. 
THE STATUTE PROVIDES THAT "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  ...  ."  62 STAT. 613, 50
U.S.C. APP. SEC. 456(J).  THE APPEAL BOARD, THEN, ON THE BASIS OF THE
REGISTRANT'S FULL FILE BEFORE IT, COMES TO ITS CONCLUSION, WHICH, IN
THE USUAL CASE, IS THE FINAL DETERMINATION OF THE SELECTIVE SERVICE
SYSTEM.  62 STAT. 620, 50 U.S.C. APP. SEC. 460(B)(3). 

THERE IS NO DIRECT JUDICIAL REVIEW OF THE ACTIONS OF THE APPEAL
BOARDS.  QUESTIONS CONCERNING THE CLASSIFICATION OF THE REGISTRANT MAY
BE RAISED EITHER IN A PETITION FOR HABEAS CORPUS OR AS A DEFENSE TO
PROSECUTION FOR FAILURE TO SUBMIT TO INDUCTION INTO THE ARMED FORCES. 
ALL FOUR OF THE CASES DECIDED TODAY HAVE ARISEN THROUGH THE LATTER
ROUTE. 

ON JANUARY 31, 1951, WITMER FILED HIS CLASSIFICATION QUESTIONNAIRE,
TOGETHER WITH AN EXPLANATORY LETTER STATING THAT HE WORKED 40 HOURS A
WEEK IN A HAT FACTORY AND ALSO CULTIVATED A PORTION OF HIS FATHER'S
FARM.  IN THE LETTER, WITMER STATED THAT HE INTENDED TO BRING MORE OF
THE FARM UNDER CULTIVATION AND CLOSED, "FOR THIS REASON I AM APPEALING
TO YOU TO GRANT ME AN AGRICULTURAL CLASSIFICATION AS I ASSURE YOU THAT
I WILL INCREASE PRODUCTION YEAR AFTER YEAR, AND CONTRIBUTE A
SATISFACTORY AMOUNT FOR THE WAR EFFORT AND CIVILIAN USE."  (FN2) 

IN HIS GENERAL QUESTIONNAIRE, WITMER EXPRESSLY DISCLAIMED ANY
MINISTERIAL EXEMPTION BY WRITING THE PHRASE, "DOES NOT APPLY," OPPOSITE
THE LINE INQUIRING WHETHER HE WAS A "MINISTER, OR STUDENT PREPARING FOR
THE MINISTRY."  HE DID CLAIM TO BE A CONSCIENTIOUS OBJECTOR, HOWEVER,
ALTHOUGH, ON THE SPECIAL FORM FOR THOSE CLAIMING SUCH CLASSIFICATIONS,
HE FAILED TO FILL IN THE SPECIFICATIONS SUPPORTING HIS OBJECTIONS TO
COMBATANT OR NONCOMBATANT SERVICE.  ON THIS SPECIAL FORM, WITMER WROTE
"MY TRAINING AND BELIEF IN RELATION TO A SUPREME BEING INVOLVES DUTIES
SUPERIOR TO THOSE ARISING FROM ANY HUMAN RELATION.  THIS PREVENTS ME
FROM TURNING ASIDE FROM THOSE SUPERIOR DUTIES WHICH I OWE TO A SUPERIOR
BEING."  THEREFORE, HE WROTE, HE WAS REQUIRED TO MAINTAIN NEUTRALITY IN
THE "COMBATS OF THIS WORLD," AND WAS PERMITTED THE USE OF FORCE ONLY
"AT THE COMMAND OF ALMIGHTY GOD."  ALTHOUGH HE INSERTED A NEGATIVE
ANSWER TO THE QUESTION ASKING WHETHER HE HAD GIVEN PUBLIC EXPRESSION TO
HIS CONSCIENTIOUS OBJECTOR VIEWS, HE CLAIMED THAT HE HAD DEMONSTRATED
HIS CONVICTIONS BY STUDYING THE BIBLE AND BY TELLING OTHERS ABOUT GOD'S
KINGDOM AND "OF HOW HE WILL PUT A STOP TO ALL WARS." 

ON FEBRUARY 21, 1951, THE LOCAL BOARD CLASSIFIED WITMER I-A, DENYING
HIS CLAIMS FOR CLASSIFICATION AS A FARMER AND A CONSCIENTIOUS
OBJECTOR.  EIGHT DAYS LATER, HE WROTE THE BOARD ADVISING THEM THAT HE
INTENDED TO APPEAL FROM THEIR ACTION AND REQUESTING CLASSIFICATION AS
"A MINISTER OF THE GOSPEL."   LESS THAN A WEEK AFTER POSTING THIS
CLAIM, HE LEFT HIS JOB IN THE HAT FACTORY, AND SHORTLY THEREAFTER, AT
HIS APPEARANCE BEFORE THE LOCAL BOARD, WITMER PRESENTED AN AFFIDAVIT
FROM A LOCAL OFFICER OF THE JEHOVAH'S WITNESSES THAT HE HAD "ON MANY
OCCASIONS" ENGAGED IN THE "PREACHING OF THE GOOD NEWS OR GOSPEL TO
OTHERS."  AT THE SAME TIME, HE SUBMITTED A WRITTEN STATEMENT THAT HE
CARRIED BIBLES AND STUDY AIDS FROM DOOR TO DOOR, AND, FURTHER, THAT ONE
COULD BE ORDAINED AS A MINISTER OF THE JEHOVAH'S WITNESSES WITHOUT
ATTENDING A SEMINARY OR PERFORMING FUNERAL OR MARRIAGE CEREMONIES.  IN
THIS STATEMENT WITMER WROTE, "THE WORK THAT I NOW DO IS OF GREATEST
UNIVERSAL IMPORTANCE THEREFORE I COULD NOT TAKE PART IN A CONFLICT OF
NATIONAL OR EVEN INTERNATIONAL IMPORTANCE."  AT THE CONCLUSION OF THE
HEARING, THE BOARD FELT THE EVIDENCE DID NOT WARRANT CLASSIFICATION AS
A MINISTER AND "INFORMED THE REGISTRANT HIS CASE WOULD BE SENT UP TO
THE APPEAL BOARD FOLLOWING HIS PHYSICAL EXAMINATION."  (FN3) 

THE APPEAL BOARD, PURSUANT TO THE ACT, FORWARDED THE CASE TO THE
DEPARTMENT OF JUSTICE.  APPARENTLY, THE FBI REPORT CONTAINED NOTHING
UNFAVORABLE TO PETITIONER AND EVEN INCLUDED STATEMENTS THAT HE APPEARED
"VERY RELIGIOUS AND VERY SINCERE" AND THAT HE HAD SAID IT WAS WRONG TO
GO TO WAR. 

AT THE DEPARTMENT HEARING, WITMER ASSERTED THAT HE COULD NOT ENGAGE
IN NONCOMBATANT SERVICE SINCE HE FELT THAT "THE BOY WHO MAKES THE SNOW
BALLS IS JUST AS RESPONSIBLE AS THE BOY WHO THROWS THEM."  ON THE BASIS
OF THE ENTIRE FILE, INCLUDING THE FBI REPORT AND THE INTERVIEW, THE
HEARING OFFICER SUGGESTED A CONSCIENTIOUS OBJECTOR CLASSIFICATION.  THE
DEPARTMENT OF JUSTICE, HOWEVER, CONCLUDED THAT WITMER'S INCONSISTENT
STATEMENTS, TOGETHER WITH HIS OFFER TO CONTRIBUTE TO THE WAR EFFORT,
PRECLUDED SUCH A CLASSIFICATION AND RECOMMENDED TO THE APPEAL BOARD
THAT WITMER'S CLAIM BE DENIED.  AFTER CONSIDERATION, THAT BOARD
RETAINED PETITIONER IN I-A, AND WHEN ORDERED TO REPORT FOR INDUCTION,
HE REFUSED TO SUBMIT.  THIS PROSECUTION FOLLOWED, AND WITMER'S
CONVICTION, 115 F. SUPP. 19, WAS AFFIRMED BY THE COURT OF APPEALS FOR
THE THIRD CIRCUIT, 213 F.2D 95.  WE GRANTED CERTIORARI.   348 U.S.
812. 

THE PRIMARY QUESTION HERE IS WHETHER, UNDER THE FACTS OF THIS CASE,
THE NARROW SCOPE OF REVIEW GIVEN THIS COURT PERMITS US TO OVERTURN THE
SELECTIVE SERVICE SYSTEM'S REFUSAL TO GRANT PETITIONER CONSCIENTIOUS
OBJECTOR STATUS.  IT IS WELL TO REMEMBER THAT IT IS NOT FOR THE COURTS
TO SIT AS SUPER DRAFT BOARDS, SUBSTITUTING THEIR JUDGMENTS ON THE
WEIGHT OF THE EVIDENCE FOR THOSE OF THE DESIGNATED AGENCIES.  NOR
SHOULD THEY LOOK FOR SUBSTANTIAL EVIDENCE TO SUPPORT SUCH
DETERMINATIONS.  DICKINSON V. UNITED STATES, 346 U.S. 389, 396 (1953). 
THE CLASSIFICATION CAN BE OVERTURNED ONLY IF IT HAS "NO BASIS IN
FACT."  ESTEP V. UNITED STATES, 327 U.S. 114, 122 (1946).  IN DICKINSON
V. UNITED STATES, 346 U.S. 389 (1953), THE MOST RECENT CASE IN WHICH
THIS COURT HAS APPLIED THIS STANDARD TO THE FACTS OF A PARTICULAR CASE,
WE SET ASIDE THE CONVICTION, HOLDING THAT THE LOCAL BOARD HAD
WRONGFULLY DENIED THE REGISTRANT A MINISTERIAL CLASSIFICATION.  THE
OBJECTIVE FACTS ON WHICH DICKINSON BASED HIS CLAIM AS A FULL-TIME
MINISTER WERE UNDISPUTED, AND THEY PLACED HIM SQUARELY WITHIN THE TERMS
OF THE ACT.  IT WAS NOT FOR THE BOARD TO SAY WHETHER HE WAS MOTIVATED
BY SINCERE RELIGIOUS PRINCIPLES IN BECOMING A MINISTER, OR WHETHER HIS
CONVICTIONS WERE DEEP, BUT MERELY, AS THE ACT PROVIDES, WHETHER HE WAS
A "REGULAR OR DULY ORDAINED MINISTER OF RELIGION" AS THEREIN DEFINED. 
THE COURT THEREFORE HELD THAT THE LOCAL BOARD'S DECISION WAS WITHOUT
BASIS IN FACT, THERE BEING NO EVIDENCE "INCOMPATIBLE WITH THE
REGISTRANT'S PROOF OF EXEMPTION" TO REBUT HIS PRIMA FACIE CASE. 

PETITIONER ARGUES FROM THIS THAT THERE WAS NO SPECIFIC EVIDENCE HERE
INCOMPATIBLE WITH HIS CLAIMED CONSCIENTIOUS OBJECTOR STATUS.  BUT IN
DICKINSON THE REGISTRANT MADE OUT HIS PRIMA FACIE CASE BY MEANS OF
OBJECTIVE FACTS - HE WAS A "REGULAR OR DULY ORDAINED MINISTER OF
RELIGION."  HERE THE REGISTRANT CANNOT MAKE OUT A PRIMA FACIE CASE FROM
OBJECTIVE FACTS ALONE, BECAUSE THE ULTIMATE QUESTION IN CONSCIENTIOUS
OBJECTOR CASES IS THE SINCERITY OF THE REGISTRANT IN OBJECTING, ON
RELIGIOUS GROUNDS, TO PARTICIPATION IN WAR IN ANY FORM.  IN THESE
CASES, OBJECTIVE FACTS ARE RELEVANT ONLY INSOFAR AS THEY HELP IN
DETERMINING THE SINCERITY OF THE REGISTRANT IN HIS CLAIMED BELIEF,
PURELY A SUBJECTIVE QUESTION.  IN CONSCIENTIOUS OBJECTOR CASES,
THEREFORE, ANY FACT WHICH CASTS DOUBT ON THE VERACITY OF THE REGISTRANT
IS RELEVANT.  IT IS "AFFIRMATIVE EVIDENCE  ...  THAT A REGISTRANT HAS
NOT PAINTED A COMPLETE OR ACCURATE PICTURE  ...  ."  DICKINSON V.
UNITED STATES, SUPRA, P. 396.  IN SHORT, THE NATURE OF A REGISTRANT'S
PRIMA  FACIE CASE DETERMINES THE TYPE OF EVIDENCE NEEDED TO REBUT HIS
CLAIM.  IF THE ISSUE IS THE NATURE OF HIS ACTIVITIES, AS IN DICKINSON,
THE EVIDENCE PROVIDING "BASIS IN FACT" MUST TEND TO SHOW THAT HIS
ACTIVITIES ARE OTHER THAN AS STATED.  IF, AS HERE, THE ISSUE IS THE
REGISTRANT'S SINCERITY AND GOOD FAITH BELIEF, THEN THERE MUST BE SOME
INFERENCE OF INSINCERITY OR BAD FAITH. 

SINCE WITMER STATED HIS BELIEFS WITH APPARENT SINCERITY, AND SINCE WE
FIND NO INDICATION ANYWHERE IN THE RECORD THAT HIS DEMEANOR APPEARED
SHIFTY OR EVASIVE OR THAT HIS APPEARANCE WAS ONE OF UNRELIABILITY, WE
MUST EXAMINE THE OBJECTIVE FACTS BEFORE THE APPEAL BOARD TO SEE WHETHER
THEY CAST DOUBT ON THE SINCERITY OF HIS CLAIM. 

WE NOTE THAT WHEN WITMER ASKED HIS BOARD FOR CLASSIFICATION AS A
FARMER, HE KNEW THAT THE LAND INVOLVED IN HIS REQUEST HAD NOT BEEN
CULTIVATED FOR 23 YEARS, SAVE FOR A FEW ACRES USED FOR FAMILY
PURPOSES.  AT THAT TIME, HE SWORE THAT THE MINISTERIAL CLASSIFICATION
DID NOT APPLY TO HIM.  YET IN MARCH - AFTER HE KNEW HIS CLAIM FOR
EXEMPTION AS A FARMER HAD BEEN DENIED - HE JUST AS FERVENTLY CLAIMED HE
WAS A FULL-TIME MINISTER.  (FN4)  FURTHERMORE, ALTHOUGH HE ASSERTED HIS
CONSCIENTIOUS OBJECTOR BELIEF IN HIS FIRST EXEMPTION CLAIM, IN THE SAME
SET OF PAPERS HE PROMISED TO INCREASE HIS FARM PRODUCTION AND
"CONTRIBUTE A SATISFACTORY AMOUNT FOR THE WAR EFFORT."  SUBSEQUENTLY,
HE ANNOUNCED "THE BOY WHO MAKES THE SNOW BALLS IS JUST AS RESPONSIBLE
AS THE BOY WHO THROWS THEM."  THESE INCONSISTENT STATEMENTS IN
THEMSELVES CAST CONSIDERABLE DOUBT ON THE SINCERITY OF PETITIONER'S
CLAIM.  THIS IS NOT MERELY A CASE OF A REGISTRANT'S CLAIMING THREE
SEPARATE CLASSIFICATIONS; IT GOES TO HIS SINCERITY AND HONESTY IN
CLAIMING CONSCIENTIOUS OBJECTION TO PARTICIPATION IN WAR.  IT WOULD NOT
BE MERE SUSPICION OR SPECULATION FOR THE BOARD TO CONCLUDE, AFTER
DENYING WITMER'S NOW-ABANDONED CLAIMS OF FARMER AND MINISTER, THAT HE
WAS INSINCERE IN HIS CLAIM OF CONSCIENTIOUS OBJECTION.  EVEN FIREMEN
BECOME DUBIOUS AFTER TWO FALSE ALARMS.  ASIDE FROM AN OUTRIGHT
ADMISSION OF DECEPTION - TO EXPECT WHICH IS PURE NAIVETY - THERE COULD
BE NO MORE COMPETENT EVIDENCE AGAINST WITMER'S CLAIMED CLASSIFICATION
THAN THE INFERENCE DRAWN FROM HIS OWN TESTIMONY AND CONDUCT.  THERE ARE
OTHER INDICATIONS WHICH, WHILE POSSIBLY INSIGNIFICANT STANDING ALONE,
IN THIS CONTEXT HELP SUPPORT THE FINDING OF  INSINCERITY.  AMONG THESE
IS PETITIONER'S FAILURE TO ADDUCE EVIDENCE OF ANY PRIOR EXPRESSION OF
HIS ALLEGEDLY DEEPLY FELT RELIGIOUS CONVICTIONS AGAINST PARTICIPATION
IN WAR.    WITH DUE REGARD FOR THE POLICY OF CONGRESS, WHICH WAS TO
MAKE REVIEW WITHIN THE SELECTIVE SERVICE SYSTEM FINAL IN ALL CASES
WHERE THERE WAS CONFLICTING EVIDENCE OR WHERE TWO INFERENCES COULD BE
DRAWN FROM THE SAME TESTIMONY, WE CANNOT HOLD THAT PETITIONER WAS
WRONGFULLY DENIED THE CONSCIENTIOUS OBJECTOR CLASSIFICATION.  IN SHORT,
THERE WAS BASIS IN FACT FOR THE BOARD'S DECISION. 

PETITIONER ALSO COMPLAINS OF THE LOCAL BOARD'S ACTION IN NOT FORMALLY
REOPENING HIS CASE AT THE MARCH 19, 1951, MEETING WHEN HE FILED HIS
APPLICATION FOR RECLASSIFICATION AS A MINISTER.  ACCORDING TO THE
TESTIMONY OF THE CLERK OF THE BOARD, THE BOARD CHAIRMAN HAD STATED THAT
THE CASE WAS OUT OF THEIR HANDS BECAUSE PETITIONER HAD TAKEN AN
APPEAL.  THE RECORD OF THIS HEARING, HOWEVER, SHOWS THAT WITMER DID
OFFER HIS PROOF, AND THAT THE BOARD DID DISCUSS THE MATTER.  THE
CHAIRMAN THEN TOLD WITMER THAT THE NEW EVIDENCE HE SUBMITTED DID NOT
ENTITLE HIM TO A MINISTERIAL EXEMPTION.  IT IS TRUE THAT SEC. 1624.2(B)
AND (C) OF THE SELECTIVE SERVICE REGULATIONS, 32 CFR (1949 ED.),
REQUIRED THAT THE CASE BE REOPENED AND THE REGISTRANT RECLASSIFIED. 
HOWEVER, IN VIEW OF THE CONCURRENT FINDINGS OF THE TRIAL JUDGE AND THE
COURT OF APPEALS THAT THERE HAD, IN FACT, BEEN A RECONSIDERATION OF
WITMER'S CLAIMS AND THAT HE WAS THEN PERSONALLY ADVISED OF HIS
CONTINUANCE IN THE I-A CLASSIFICATION, WE THINK THE COMMAND OF THE
REGULATION TO REOPEN AND RECLASSIFY WAS HONORED, EVEN THOUGH THE
BOARD'S ACTION WAS NOT TAGGED WITH THESE WORDS.  IN THIS STATE OF THE
RECORD, THE CONTENTION OF WITMER NARROWS DOWN TO MERE CAVILLING.  NO
PREJUDICE IS CLAIMED FROM THIS AND WE FIND NO ERROR.  THE JUDGMENT IS
AFFIRMED. 

FN1  BECAUSE OF THE WIDE DIVERGENCIES IN THE PROBLEMS PRESENTED, WE
SHALL CONSIDER THE CASES BEFORE US IN SEPARATE OPINIONS. 

FN2 THE RECORD INDICATES THAT THIS FARM HAD NOT BEEN WORKED FOR 23
YEARS, EXCEPT FOR A GARDEN TRACT USED FOR FAMILY PURPOSES. 

FN3  THE MINUTE OF THE LOCAL BOARD MEETING IS AS FOLLOWS: 

"MARCH 19, 1951 

"RE:  ORDER #36-28-30-71 PHILIP ANDREW WITMER 

"THE BOARD MET WITH REGISTRANT TODAY.  THE REGISTRANT INFORMED THE
BOARD THAT HE LEFT HIS PLACE OF EMPLOYMENT ON MARCH 3, WHERE HE HAD
WORKED FOR THREE YEARS IN A HAT FACTORY.  THE BOARD CHAIRMAN
IMMEDIATELY POINTED OUT THAT HE WAS CLASSIFIED AS I-A ON FEBRUARY 21,
WHICH MEANT HE LEFT HIS POSITION ABOUT TWO WEEKS LATER.  HE THEN
MENTIONED THAT HIS FATHER HAD A FARM WHICH HAD NOT BEEN WORKED AS A
FARM FOR 23 YEARS BUT THAT HE FELT HE WAS GOING TO START GETTING THIS
FARM IN SHAPE.  PRIOR TO THIS TIME HE STATED HE HAD GOTTEN A FEW ACRES
IN SHAPE FOR THEIR OWN FAMILY USE SO THAT THEY WOULD NOT BE DEPENDENT
UPON OTHER PEOPLE. 

"THE REGISTRANT THEN POINTED OUT THAT HE WAS A MINISTER OF THE GOSPEL
AND THE ONLY EVIDENCE HE PRESENTED TO SUBSTANTIATE THIS FACT WAS SOME
PARAPHERNALIA FROM THE WATCHTOWER ASSOCIATION OF THE JEHOVAH'S
WITNESSES.  THE REGISTRANT WAS ASKED IF HE WAS AN ORDAINED MINISTER AND
HE SAID JEHOVAH'S WITNESSES BECAME ORDAINED WHEN THEY STARTED
DISTRIBUTING THEIR LITERATURE.  THE BOARD FELT THIS WAS NOT SUFFICIENT
EVIDENCE TO WARRANT A 4-D CLASSIFICATION AND INFORMED THE REGISTRANT
HIS CASE WOULD BE SENT UP TO THE APPEAL BOARD FOLLOWING HIS PHYSICAL
EXAMINATION."  R. 33-34, 54-55. 

FN4  ORDINARILY THE CLAIM OF A JEHOVAH'S WITNESS TO EXEMPTION AS A
MINISTER, THOUGH UNFOUNDED IN LAW, WOULD NOT REFLECT ADVERSELY ON HIS
GOOD FAITH, SINCE IT IS THE DOCTRINE OF THE JEHOVAH'S WITNESSES THAT
ALL ARE MINISTERS. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 

MR. JUSTICE MINTON, CONCURRING. 

BECAUSE THE BOARD'S ORDER WAS AN ALLOWABLE ONE UNDER THE LAW AND NOT
ARBITRARILY TAKEN, I CONCUR IN THE RESULT OF THIS CASE. 
..END :



















SICURELLA V. UNITED STATES 348 U.S. 385 


NO. 250.  ARGUED FEBRUARY 1, 1955 - DECIDED MARCH 14, 1955 - 213 F.2D
911, REVERSED. 


PETITIONER, A MEMBER OF JEHOVAH'S WITNESSES, WAS DENIED CLASSIFICATION
AS A CONSCIENTIOUS OBJECTOR UNDER SEC. 6(J) OF THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT.  HE APPEALED.  AFTER THE USUAL INVESTIGATION,
THE DEPARTMENT OF JUSTICE ADMITTED HIS SINCERITY BUT RECOMMENDED TO THE
APPEAL BOARD THAT CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR BE DENIED,
ON THE GROUND THAT HE WAS NOT ENTITLED TO EXEMPTION BECAUSE HE HAD
INDICATED HIS WILLINGNESS TO FIGHT IN DEFENSE OF "HIS MINISTRY, KINGDOM
INTERESTS AND  ...  HIS FELLOW BRETHREN."  THE APPEAL BOARD DENIED
PETITIONER CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR, AND HE WAS
CONVICTED OF FAILING TO SUBMIT TO INDUCTION UNDER SEC. 12(A) OF THE
ACT.  HELD: THE RECOMMENDATION OF THE DEPARTMENT OF JUSTICE WAS BASED
ON AN ERROR OF LAW, AND THE CONVICTION IS REVERSED.  PP. 386-392. 

(A)  IN VIEW OF PETITIONER'S EMPHASIS THROUGHOUT HIS SELECTIVE
SERVICE FORM THAT THE WEAPONS OF HIS WARFARE WERE SPIRITUAL, NOT
CARNAL, HIS WILLINGNESS TO USE FORCE IN DEFENSE OF KINGDOM INTERESTS
AND BRETHREN IS NOT SUFFICIENTLY INCONSISTENT WITH HIS CLAIM TO JUSTIFY
THE CONCLUSION THAT HE FELL SHORT OF BEING A CONSCIENTIOUS OBJECTOR TO
"PARTICIPATION IN WAR IN ANY FORM" WITHIN THE MEANING OF SEC. 6(J). 
PP. 389-390. 

(B)  BY RELATING A REGISTRANT'S CONSCIENTIOUS OBJECTION TO HIS
RELIGIOUS TRAINING AND BELIEF, CONGRESS HAS MADE THE BELIEFS OF HIS
RELIGIOUS SECT RELEVANT; BUT IT WAS ERRONEOUS AS A MATTER OF LAW TO
DENY A MEMBER OF JEHOVAH'S WITNESSES EXEMPTION AS A CONSCIENTIOUS
OBJECTOR MERELY BECAUSE MEMBERS OF THAT SECT ARE READY TO ENGAGE IN A
"THEOCRATIC WAR," IF JEHOVAH SO COMMANDS, AND WILLING TO FIGHT AT
ARMAGEDDON WITH SPIRITUAL, NOT CARNAL, WEAPONS.  PP. 390-391. 

(C)  WHEN CONGRESS REFERRED TO PARTICIPATION IN WAR IN ANY FORM, IT
HAD IN MIND ACTUAL MILITARY CONFLICTS BETWEEN NATIONS OF THE EARTH IN
OUR TIME.  P. 391. 

(D)  IF A REGISTRANT HAS THE REQUISITE CONSCIENTIOUS OBJECTION, ON
RELIGIOUS GROUNDS, TO PARTICIPATION IN WAR IN ANY FORM, HE DOES NOT
FORFEIT HIS RIGHTS UNDER SEC. 6(J) BECAUSE HIS OTHER BELIEFS MAY EXTEND
BEYOND THE EXEMPTION GRANTED BY CONGRESS.  P. 391. 

(E)  THE DEPARTMENT OF JUSTICE'S ERROR OF LAW IN ITS REPORT TO THE
APPEAL BOARD MUST VITIATE THE ENTIRE PROCEEDINGS, SINCE IT IS NOT CLEAR
THAT THE BOARD RELIED ON SOME LEGITIMATE GROUND IN DENYING PETITIONER'S
CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR.  PP. 391-392. 

SICURELLA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PETITIONER WAS CONVICTED OF FAILING TO SUBMIT TO INDUCTION INTO THE
ARMED FORCES IN VIOLATION OF SEC. 12(A) OF THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT.  THE COURT OF APPEALS AFFIRMED.  213 F.2D
911.  THIS COURT GRANTED CERTIORARI.  348 U.S. 812.  REVERSED, P. 392. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS BORN IN 1927 AND WAS BROUGHT UP AS A JEHOVAH'S WITNESS
BY HIS PARENTS, BOTH OF WHOM WERE OF THAT FAITH.  HE HAS BEEN
IDENTIFIED WITH THE SECT SINCE HE WAS 6 YEARS OLD, "WAS IMMERSED AND
BECAME A CONSECRATED SERVANT OF JEHOVAH" AT 15, AND WAS ORDAINED WHEN
17 YEARS OLD.  HE REGISTERED WITH HIS LOCAL BOARD IN 1948, AND,
ALTHOUGH HE WORKED 44 HOURS A WEEK FOR THE RAILWAY EXPRESS COMPANY, HE
WAS FIRST CLASSIFIED AS A MINISTER.  IN 1950, HOWEVER, PETITIONER WAS
RECLASSIFIED FOR GENERAL SERVICE AND, SHORTLY THEREAFTER, HE FILED HIS
CONSCIENTIOUS OBJECTOR CLAIM. 

IN THE SPECIAL FORM, PETITIONER INCLUDED THIS STATEMENT: 

"THE NATURE OF MY CLAIM IS THAT:  I AM ALREADY IN THE ARMY OF CHRIST
JESUS SERVING AS A SOLDIER OF JEHOVAH'S APPOINTED COMMANDER JESUS
CHRIST.  (2 TIM.  2:3 & 4).  INASMUCH AS THE WAR WEAPONS OF THE SOLDIER
OF JESUS CHRIST ARE NOT CARNAL, I AM NOT AUTHORIZED BY HIS COMMANDER TO
ENGAGE IN CARNAL WARFARE OF THIS WORLD.  (2 CORINTHIANS 10:3 & 4,
EPHESIANS 6:11-18)  FURTHERMORE BEING ENLISTED IN THE ARMY OF JESUS
CHRIST, I CANNOT DESERT THE FORCES OF JEHOVAH TO ASSUME THE OBLIGATIONS
OF A SOLDIER IN ANY ARMY OF THIS WORLD WITHOUT BEING GUILTY OF
DESERTION AND SUFFERING THE PUNISHMENT METED OUT TO DESERTERS BY
ALMIGHTY GOD  ...  ." 

IN ANSWER TO THE QUESTION, "UNDER WHAT CIRCUMSTANCES, IF ANY, DO YOU
BELIEVE IN THE USE OF FORCE," HE WROTE: 

"ONLY IN THE INTERESTS OF DEFENDING KINGDOM INTERESTS, OUR PREACHING
WORK, OUR MEETINGS, OUR FELLOW BRETHREN AND SISTERS AND OUR PROPERTY
AGAINST ATTACK.  I (AS WELL AS ALL JEHOVAH'S WITNESSES) DEFEND THOSE
WHEN THEY ARE ATTACKED AND ARE FORCED TO PROTECT SUCH INTERESTS AND
SCRIPTURALLY SO. BECAUSE IN DOING SO WE DO NOT ARM OURSELVES OR CARRY
CARNAL WEAPONS IN ANTICIPATION OF OR IN PREPARATION FOR TROUBLE OR TO
MEET THREATS.  IN DOING SO I TRY TO WARD OFF BLOWS AND ATTACKS ONLY IN
DEFENSE.  I DO NOT USE WEAPONS OF WARFARE IN DEFENSE OF MYSELF OR THE
KINGDOM INTERESTS.  I DO NOT RETREAT WHEN ATTACKED IN MY HOME OR AT
MEETING PLACES, BUT WILL RETREAT ON PUBLIC OR OTHER PROPERTY AND SHAKE
THE DUST OFF MY FEET; SO NOT GIVING WHAT IS HOLY TO DOGS AND NOT
THROWING MY PEARLS BEFORE SWINE.  (MATTHEW 10:14 & 7:6)  SO I RETREAT
WHEN I CAN DO SO AND AVOID A FIGHT OR TROUBLE.  ALSO FOLLOWING THE
ADMONITION AT ACTS 24:16; WHICH STATES 'IN THIS RESPECT, INDEED, I AM
EXERCISING MYSELF CONTINUALLY TO HAVE A CONSCIOUSNESS OF COMMITTING NO
OFFENSE AGAINST GOD AND MAN.'" 

UPON A DENIAL OF THIS CLAIM BY THE LOCAL BOARD, PETITIONER APPEALED
AND HIS FILE WAS REFERRED TO THE DEPARTMENT OF JUSTICE.  IT APPEARS
THAT THE REPORT OF THE FEDERAL BUREAU OF INVESTIGATION CONTAINED
NOTHING UNFAVORABLE TO PETITIONER'S CLAIM, AND THE HEARING OFFICER
CONCLUDED THAT PETITIONER SHOULD BE CLASSIFIED AS A CONSCIENTIOUS
OBJECTOR.  IN ADVISING THE DEPARTMENT OF JUSTICE, THE HEARING OFFICER
WROTE THAT HE "WAS CONVINCED THAT PETITIONER HAS SINCERE OBJECTIONS TO
MILITARY SERVICE BY REASON OF HIS RELIGIOUS TRAINING AND BELIEFS."  THE
DEPARTMENT OF JUSTICE, ALTHOUGH ADMITTING THAT THE INVESTIGATION WAS
FAVORABLE TO PETITIONER, RECOMMENDED TO THE APPEAL BOARD THAT
PETITIONER'S CLAIM BE DENIED ON THE GROUND THAT: 

"WHILE THE REGISTRANT MAY BE SINCERE IN THE BELIEFS HE HAS EXPRESSED,
HE HAS, HOWEVER, FAILED TO ESTABLISH THAT HE IS OPPOSED TO WAR IN ANY
FORM.  AS INDICATED BY THE STATEMENTS ON HIS SSS FORM NO. 150,
REGISTRANT WILL FIGHT UNDER SOME CIRCUMSTANCES, NAMELY IN DEFENSE OF
HIS MINISTRY, KINGDOM INTERESTS, AND IN DEFENSE OF HIS FELLOW
BRETHREN.  HE IS, THEREFORE, NOT ENTITLED TO EXEMPTION WITHIN THE
MEANING OF THE ACT." 

THE APPEAL BOARD RETAINED PETITIONER IN HIS I-A CLASSIFICATION, AND
THEREAFTER, WHEN DULY ORDERED TO REPORT, HE REFUSED TO SUBMIT TO
INDUCTION.  THIS PROSECUTION FOLLOWED AND THE SEVENTH CIRCUIT AFFIRMED
PETITIONER'S CONVICTION.  213 F.2D 911.  WE GRANTED CERTIORARI.  348
U.S. 812. 

IN THIS CASE, UNLIKE WITMER, ANTE, P. 375, IT IS ADMITTED THAT
PETITIONER IS SINCERE; WE ARE THEREFORE RELIEVED OF THE TASK OF
SEARCHING THE RECORD FOR BASIS IN FACT TO SUPPORT A FINDING OF
INSINCERITY.  THE ONLY QUESTION PRESENTED IN THIS CASE IS ONE OF LAW -
DO THE BELIEFS WHICH PETITIONER SAYS HE HOLDS AMOUNT TO THE
CONSCIENTIOUS OPPOSITION TO "PARTICIPATION IN WAR IN ANY FORM" DEMANDED
BY CONGRESS AS A PREREQUISITE TO THE CONSCIENTIOUS OBJECTOR DEFERMENT? 

STATED IN THE LIGHT OF THE BACKGROUND, THE QUESTION AT ISSUE IS
WHETHER A REGISTRANT UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE
ACT, WHO IS ADMITTEDLY A SINCERE JEHOVAH'S WITNESS AND CONSCIENTIOUS
OBJECTOR TO PARTICIPATION IN WAR, BUT WHO BELIEVES IN THE USE OF FORCE
IN DEFENDING "HIS MINISTRY, KINGDOM INTERESTS AND  ...  HIS FELLOW
BRETHREN," IS ENTITLED TO EXEMPTION UNDER SEC. 6(J) OF THE ACT FROM
SERVICE IN THE ARMED FORCES.  THE GOVERNMENT INSISTS THAT PETITIONER'S
STATEMENTS REVEAL QUALIFIED AND VARIED OBJECTION TO WAR - AND THAT
"PETITIONER'S WILLINGNESS TO FIGHT IN DEFENSE OF 'KINGDOM INTERESTS',
PARTICULARLY WHEN THOSE WORDS ARE CONSIDERED IN THE LIGHT OF THE
TEACHINGS OF HIS SECT,  ...  " IS CLEARLY NOT OPPOSITION TO WAR IN ANY
FORM. 

THE GOVERNMENT DOES NOT CONTEND THAT THE PETITIONER'S BELIEF IN THE
USE OF FORCE IN SELF-DEFENSE, AS WELL AS THE DEFENSE OF HIS HOME,
FAMILY AND ASSOCIATES, IS SO INCONSISTENT WITH HIS CLAIM OF
CONSCIENTIOUS OBJECTION AS TO SERVE AS A BASIS FOR A DENIAL OF HIS
CLAIM.*  THE QUESTION HERE NARROWS TO WHETHER THE WILLINGNESS TO USE OF
FORCE IN DEFENSE OF KINGDOM INTERESTS AND BRETHREN IS SUFFICIENTLY
INCONSISTENT WITH PETITIONER'S CLAIM AS TO JUSTIFY THE CONCLUSION THE
HE FELL SHORT OF BEING A CONSCIENTIOUS OBJECTOR.  THROUGHOUT HIS
SELECTIVE SERVICE FORM, PETITIONER EMPHASIZED THAT THE WEAPONS OF HIS
WARFARE WERE SPIRITUAL, NOT CARNAL.  HE ASSERTED THAT HE WAS A SOLDIER
IN THE ARMY OF JESUS CHRIST AND THAT "THE WAR WEAPONS OF THE SOLDIER OF
JESUS CHRIST ARE NOT CARNAL."  WITH REFERENCE TO THE DEFENSE OF HIS
MINISTRY, HIS BRETHREN AND KINGDOM INTERESTS, HE ASSERTED THAT "WE DO
NOT ARM OURSELVES OR CARRY CARNAL WEAPONS  ...  .  I DO NOT USE WEAPONS
OF WARFARE IN DEFENSE ...  OF KINGDOM INTERESTS  ...  ."  IN LETTERS TO
THE LOCAL BOARD HE REITERATED THESE BELIEFS.  ON THEIR FACE, THESE
STATEMENTS MAKE IT CLEAR THAT PETITIONER'S DEFENSE OF "KINGDOM
INTERESTS" HAS NEITHER THE BARK NOR THE BITE OF WAR AS WE UNFORTUNATELY
KNOW IT TODAY.  IT IS DIFFICULT FOR US TO BELIEVE THAT THE CONGRESS HAD
IN MIND THIS TYPE OF ACTIVITY WHEN IT SAID THE THRUST OF CONSCIENTIOUS
OBJECTION MUST GO TO "PARTICIPATION IN WAR IN ANY FORM." 

*IN UNITED STATES V. TAFFS, IN WHICH WE DENIED CERTIORARI, 347 U.S.
928, THE GOVERNMENT ADMITTED AS MUCH IN ITS PETITION.  ITS ADMISSION
HERE DOES NOT EXTEND TO THE CATEGORY "BRETHREN" WHICH WAS NOT USED IN
TAFFS. 

BUT THE GOVERNMENT URGES THAT THESE STATEMENTS OF PETITIONER MUST BE
TAKEN IN THE LIGHT OF THE TEACHINGS OF JEHOVAH'S WITNESSES.  WHILE EACH
CASE MUST OF NECESSITY BE BASED ON THE PARTICULAR BELIEFS OF THE
INDIVIDUAL REGISTRANT, IT IS TRUE THAT THE CONGRESS, BY RELATING THE
REGISTRANT'S CONSCIENTIOUS OBJECTION TO HIS RELIGIOUS TRAINING AND
BELIEF, HAS MADE THE BELIEF OF HIS SECT RELEVANT.  MOREOVER, THE
PETITIONER DOES PARENTHETICALLY SAY THAT HIS BELIEF IN THE USE OF FORCE
WAS "AS WELL  ...  THE BELIEF OF ALL JEHOVAH'S WITNESSES."  ON THE
OTHER HAND, THOUGH THE GOVERNMENT HAS APPENDED TO ITS BRIEF A COPY OF
THE WATCHTOWER MAGAZINE OF FEBRUARY 1, 1951, WE DO NOT FIND ANY SUCH
LITERATURE IN THE RECORD.  IT IS NOT AT ALL CLEAR THAT WE MAY CONSIDER
SUCH MATERIAL OUTSIDE THE RECORD TO SUPPORT AN APPEAL BOARD DECISION,
CF. COX V. UNITED STATES, 332 U.S. 442, 453-455 (1947), BUT WE NEED NOT
DECIDE THAT HERE BECAUSE IN ANY EVENT THERE IS NO SUBSTANCE TO THE
GOVERNMENT'S CONTENTION.  GRANTING THAT THESE ARTICLES PICTURE
JEHOVAH'S WITNESSES AS ANTIPACIFISTS, EXTOLLING THE ANCIENT WARS OF THE
ISRAELITES AND READY TO ENGAGE IN A "THEOCRATIC WAR" IF JEHOVAH SO
COMMANDS THEM, AND GRANTING THAT THE JEHOVAH'S WITNESSES WILL FIGHT AT
ARMAGEDDON, WE DO NOT FEEL THIS IS ENOUGH.  THE TEST IS NOT WHETHER THE
REGISTRANT IS OPPOSED TO ALL WAR, BUT WHETHER HE IS OPPOSED, ON
RELIGIOUS GROUNDS, TO PARTICIPATION IN WAR.  AS TO THEOCRATIC WAR,
PETITIONER'S WILLINGNESS TO FIGHT ON THE ORDERS OF JEHOVAH IS TEMPERED
BY THE FACT THAT, SO FAR AS WE KNOW, THEIR HISTORY RECORDS NO SUCH
COMMAND SINCE BIBLICAL TIMES AND THEIR THEOLOGY DOES NOT APPEAR TO
CONTEMPLATE ONE IN THE FUTURE.  AND ALTHOUGH THE JEHOVAH'S WITNESSES
MAY FIGHT IN THE ARMAGEDDON, WE ARE NOT ABLE TO STRETCH OUR IMAGINATION
TO THE POINT OF BELIEVING THAT THE YARDSTICK OF THE CONGRESS INCLUDES
WITHIN ITS MEASURE SUCH SPIRITUAL WARS BETWEEN THE POWERS OF GOOD AND
EVIL WHERE THE JEHOVAH'S WITNESSES, IF THEY PARTICIPATE, WILL DO SO
WITHOUT CARNAL WEAPONS. 

WE BELIEVE THAT CONGRESS HAD IN MIND REAL SHOOTING WARS WHEN IT
REFERRED TO PARTICIPATION IN WAR IN ANY FORM - ACTUAL MILITARY
CONFLICTS BETWEEN NATIONS OF THE EARTH IN OUR TIME - WARS WITH BOMBS
AND BULLETS, TANKS, PLANES AND ROCKETS.  WE BELIEVE THE REASONING OF
THE GOVERNMENT IN DENYING PETITIONER'S CLAIM IS SO FAR REMOVED FROM ANY
POSSIBLE CONGRESSIONAL INTENT THAT IT IS ERRONEOUS AS A MATTER OF LAW. 
THE COURT OF APPEALS ALSO RESTED ITS DECISION ON THE CONCLUSION THAT
PETITIONER'S OBJECTION TO PARTICIPATION IN WAR WAS ONLY A FACET OF HIS
REAL OBJECTION TO ALL GOVERNMENTAL AUTHORITY.  WE BELIEVE, HOWEVER,
THAT IF THE REQUISITE OBJECTION TO PARTICIPATION IN WAR EXISTS, IT
MAKES NO DIFFERENCE THAT A REGISTRANT ALSO CLAIMS, ON RELIGIOUS
GROUNDS, OTHER EXEMPTIONS WHICH ARE NOT COVERED BY THE ACT.  ONCE HE
COMES WITHIN SEC. 6(J), HE DOES NOT FORFEIT ITS COVERAGE BECAUSE OF HIS
OTHER BELIEFS WHICH MAY EXTEND BEYOND THE EXEMPTION GRANTED BY
CONGRESS. 

THE GOVERNMENT ALSO CONTENDS, APPARENTLY FOR THE FIRST TIME, THAT
PETITIONER OBJECTS TO "PARTICIPATION IN WAR IN ANY FORM," IF IN FACT HE
DOES, NOT FROM A FEELING THAT IT IS WRONG TO PARTICIPATE IN WAR BUT
BECAUSE SUCH PARTICIPATION WILL REQUIRE TIME WHICH PETITIONER FEELS
SHOULD BE DEVOTED TO HIS RELIGIOUS ACTIVITIES.  IN ITS MEMORANDUM
INDICATING ITS LACK OF OPPOSITION TO CERTIORARI, THE GOVERNMENT GAVE NO
HINT THAT IT CONSIDERED SUCH AN ISSUE IN THE CASE, AND IT IS
UNNECESSARY FOR US TO CONSIDER IT HERE.  THE REPORT OF THE DEPARTMENT
OF JUSTICE TO THE APPEAL BOARD CLEARLY BASES ITS RECOMMENDATION ON
PETITIONER'S WILLINGNESS TO "FIGHT UNDER SOME CIRCUMSTANCES, NAMELY IN
DEFENSE OF HIS MINISTRY, KINGDOM INTERESTS, AND IN DEFENSE OF HIS
FELLOW BRETHREN," AND WE FEEL THAT THIS ERROR OF LAW BY THE DEPARTMENT,
TO WHICH THE APPEAL BOARD MIGHT NATURALLY LOOK FOR GUIDANCE ON SUCH
QUESTIONS, MUST VITIATE THE ENTIRE PROCEEDINGS AT LEAST WHERE IT IS NOT
CLEAR THAT THE BOARD RELIED ON SOME LEGITIMATE GROUND.  HERE, WHERE IT
IS IMPOSSIBLE TO DETERMINE ON EXACTLY WHICH GROUNDS THE APPEAL BOARD
DECIDED, THE INTEGRITY OF THE SELECTIVE SERVICE SYSTEM DEMANDS, AT
LEAST, THAT THE GOVERNMENT NOT RECOMMEND ILLEGAL GROUNDS.  THERE IS AN
IMPRESSIVE BODY OF LOWER COURT CASES TAKING THIS POSITION AND WE
BELIEVE THAT THEY STATE THE CORRECT RULE.  CF. UNITED STATES EX REL.
LEVY V. CAIN, 149 F.2D 338, 342 (C.A.2D CIR. 1945); UNITED STATES V.
BALOGH, 157 F.2D 939, 943-944 (C.A.2D CIR. 1946), JUDGMENT VACATED ON
OTHER GROUNDS, 329 U.S. 692; UNITED STATES V. EVERNGAM, 102 F. SUPP.
128 (S.D.W.VA. 1951). 

THE DECISION BELOW IS THEREFORE REVERSED. 

MR. JUSTICE REED, DISSENTING. 

IT IS NOT IMPORTANT TO THE UNITED STATES MILITARY STRENGTH THAT A FEW
PEOPLE ELIGIBLE FOR MILITARY SERVICE ARE EXCUSED FROM COMBAT AND
NONCOMBATANT DUTIES AS CONSCIENTIOUS OBJECTORS.  IT IS IMPORTANT TO
OTHER AMERICAN CITIZENS THAT MANY WITHOUT SUCH SCRUPLES AGAINST WAR
MUST SERVE WHILE THE FEW CONTINUE THEIR ASSIGNED TASKS WITH NO EXPOSURE
TO DANGER GREATER THAN THAT OF OTHER CIVILIANS. 

MANY, BY REASON OF RELIGIOUS TRAINING OR MORAL CONVICTIONS, MAY BE
OPPOSED TO CERTAIN WARS DECLARED BY THE NATION.  BUT THEY MUST SERVE
BECAUSE THEY DO NOT MEET THE TEST OF THE STATUTE, "CONSCIENTIOUSLY
OPPOSED TO PARTICIPATION IN WAR IN ANY FORM."  THE COURT ASSUMES THAT
SICURELLA'S CONSCIENCE PERMITS HIM TO PARTICIPATE IN THEOCRATIC WARS,
THAT IS, THOSE APPROVED BY JEHOVAH, SUCH AS THE BLOOD AND FLESH WARS OF
THE ISRAELITES.  SICURELLA TESTIFIED HE WOULD USE FORCE IN DEFENSE OF
"KINGDOM INTERESTS."  THOSE WORDS ALSO SEEM TO ME TO INCLUDE THEOCRATIC
WARS.  UNDER THE ASSUMPTION OF THE COURT AND PETITIONER'S STATEMENTS HE
IS NOT COVERED BY THE STATUTORY EXEMPTION.  HIS POSITION IS
INCONSISTENT WITH HIS CLAIMED OPPOSITION TO WAR.  I WOULD REQUIRE HIM
TO SERVE IN THE MILITARY SERVICE.   MR. JUSTICE MINTON, DISSENTING. 

THE FINDINGS AND CLASSIFICATION MADE BY THE SELECTIVE SERVICE BOARD
AND THE APPEAL BOARD ARE FINAL.  50 U.S.C. APP. (1952 ED.)  SEC.  460
(B)(3).  THIS COURT DOES NOT SIT AS A COURT OF REVIEW.  IT IS NOT OUR
PROVINCE TO SUBSTITUTE OUR JUDGMENT OF THE FACTS FOR THAT OF THE BOARD
OR TO CORRECT THE BOARD'S ERRORS OF LAW UNLESS THEY ARE SO WANTON,
ARBITRARY AND CAPRICIOUS AS TO DESTROY THE JURISDICTION OF THE BOARD. 

THIS COURT SAID IN ESTEP V. UNITED STATES, 327 U.S. 114, AT PP. 122
123: 

"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." 

IN THAT CASE, ESTEP HAD CLAIMED THAT HIS CLASSIFICATION WAS MADE
ARBITRARILY AND CAPRICIOUSLY.  THIS IS ALWAYS A QUESTION OF
JURISDICTION.  WAS THE BOARD ACTING IN WANTON DISREGARD OF ITS LEGAL
BOUNDARIES?  IF IT WAS NOT, BUT MADE WHAT WE MIGHT CONSIDER AN HONEST
MISTAKE IN JUDGMENT, THIS COURT SHOULD NOT INTERVENE. 

IN THE INSTANT CASE, THE COURT DOES NOT SAY THAT THE BOARD ACTED
CAPRICIOUSLY AND ARBITRARILY OR THAT THE JUDGMENT OF THE BOARD WAS NOT
AN ALLOWABLE JUDGMENT OF REASONABLE MEN.  THE COURT STATES THAT A
MISTAKE IN ADVICE WAS MADE BY THE DEPARTMENT OF JUSTICE TO THE APPEAL
BOARD. 

"THE REPORT OF THE DEPARTMENT OF JUSTICE  ...  CLEARLY BASES ITS
RECOMMENDATION ON PETITIONER'S WILLINGNESS TO 'FIGHT UNDER SOME
CIRCUMSTANCES, NAMELY IN DEFENSE OF HIS MINISTRY, KINGDOM INTERESTS,
AND IN DEFENSE OF HIS FELLOW BRETHREN,' AND WE FEEL THAT THIS ERROR OF
LAW BY THE DEPARTMENT, TO WHICH THE APPEAL BOARD MIGHT NATURALLY LOOK
FOR GUIDANCE ON SUCH QUESTIONS, MUST VITIATE THE ENTIRE PROCEEDINGS
...  ." 

IT WILL BE NOTED THAT THE COURT SAYS THERE WAS ERROR OF LAW NOT BY
THE APPEAL BOARD BUT BY THE DEPARTMENT OF JUSTICE, WHOSE RECOMMENDATION
IS PURELY ADVISORY AND NOT BINDING UPON THE APPEAL BOARD.  50 U.S.C.
APP. (1952 ED.)  SEC.  456(J).  THE COURT CONCLUDES THAT THE DEPARTMENT
OF JUSTICE COMMITTED AN ERROR OF LAW BY RECOMMENDING TO THE APPEAL
BOARD THAT THE PETITIONER BE DENIED CONSCIENTIOUS OBJECTOR
CLASSIFICATION BECAUSE OF PETITIONER'S WILLINGNESS TO "FIGHT UNDER SOME
CIRCUMSTANCES, NAMELY IN DEFENSE OF HIS MINISTRY, KINGDOM INTERESTS,
AND IN DEFENSE OF HIS FELLOW BRETHREN."  THE RECORD IN THIS CASE
CLEARLY ESTABLISHES THAT THIS WAS THE POSITION AND ATTITUDE OF THE
PETITIONER AS A FAITHFUL JEHOVAH'S WITNESS.  PETITIONER SAYS HE IS
OPPOSED TO FIGHTING A SECULAR WAR BUT IS NOT OPPOSED TO FIGHTING A
RELIGIOUS WAR WHERE THE INTERESTS OF HIS SECT ARE INVOLVED.  THIS DOES
NOT MEET THE TEST OF THE STATUTE, 50 U.S.C. APP. (1952 ED.)  SEC. 
456(J), WHICH PROVIDES: 

"NOTHING CONTAINED IN THIS TITLE (SECTIONS 451-454 AND 455-471 OF
THIS APPENDIX) 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." 

THE PETITIONER IS NOT OPPOSED TO "PARTICIPATION IN WAR IN ANY FORM." 
THAT IS THE CONGRESSIONAL TEST.  ON THE CONTRARY, HE RESERVES THE RIGHT
TO CHOOSE THE WARS IN WHICH HE WILL FIGHT.  THE PETITIONER REFUSED EVEN
TO BE INDUCTED FOR ANY KIND OF LIMITED SERVICE, COMBATANT OR
OTHERWISE. 

THE COURT'S OPINION GIVES THE IMPRESSION THAT THE PETITIONER AND HIS
HE CONTRADICTS SUCH A POSITION.  SSS FORM NO. 150, FILLED OUT BY THE
PETITIONER AND SUBMITTED TO THE BOARD, CONTAINS THE FOLLOWING QUESTION
AND ANSWER: 

"5.  UNDER WHAT CIRCUMSTANCES, IF ANY, DO YOU BELIEVE IN THE USE OF
FORCE? 

"ONLY IN THE INTERESTS OF DEFENDING KINGDOM INTERESTS, OUR PREACHING
WORK, OUR MEETINGS, OUR FELLOW BRETHREN AND SISTERS AND OUR PROPERTY
AGAINST ATTACK.  I (AS WELL AS ALL JEHOVAH'S WITNESSES) DEFEND THOSE
WHEN THEY ARE ATTACKED AND ARE FORCED TO PROTECT SUCH INTERESTS AND
SCRIPTURALLY SO. BECAUSE IN DOING SO WE DO NOT ARM OURSELVES OR CARRY
CARNAL WEAPONS IN ANTICIPATION OF OR IN PREPARATION FOR TROUBLE OR TO
MEET THREATS." 

THIS ANSWER CLEARLY SHOWS THAT THE PETITIONER AND HIS SECT WILL FIGHT
FOR KINGDOM INTERESTS, WHATEVER THAT IS, PREACHING WORK, THEIR
MEETINGS, THEIR FELLOW BRETHREN AND SISTERS, AND THEIR PROPERTY.  THEY
DO NOT, THEY SAY, CARRY CARNAL WEAPONS IN ANTICIPATION OF ATTACK, BUT
THEY WILL USE THEM IN CASE OF ATTACK.  THIS EVIDENCE CLEARLY SUPPORTS
THE DISTRICT COURT'S FINDING OF GUILT; AND THE CONCLUSION OF THE
SELECTIVE SERVICE BOARD BASED ON SUCH EVIDENCE WAS AN ALLOWABLE ONE. 

I THINK THE DEPARTMENT OF JUSTICE MIGHT VERY WELL HAVE BELIEVED
PETITIONER DID NOT MEET THE TEST LAID DOWN BY CONGRESS.  BY ACCEPTING
THE DEPARTMENT'S RECOMMENDATION, THE BOARD MIGHT HAVE BEEN MISTAKEN,
BUT IT WAS AN HONEST MISTAKE.  THERE IS NOT THE SLIGHTEST INTIMATION OF
ARBITRARY OR CAPRICIOUS CONDUCT ON THE PART OF THE BOARD. 

BECAUSE WE DO NOT SIT TO REVIEW ERRORS OF FACT OR LAW UNLESS THE
LATTER BE SO ARBITRARY AND CAPRICIOUS AS TO DESTROY THE BOARD'S
JURISDICTION, AND BECAUSE I THINK THE DECISION OF THE APPEAL BOARD,
EVEN IF THE BOARD ACCEPTED AND RELIED UPON THE RECOMMENDATION OF THE
DEPARTMENT OF JUSTICE, WAS AN HONEST OPINION AND, THEREFORE, AN
ALLOWABLE JUDGMENT NOT ARBITRARILY AND CAPRICIOUSLY MADE, I WOULD
AFFIRM. 
..END :
























SIMMONS V. UNITED STATES 348 U.S. 397 


NO. 251.  ARGUED FEBRUARY 2, 1955 - DECIDED MARCH 14, 1955 - 213 F.2D
901, REVERSED. 


PETITIONER, A MEMBER OF JEHOVAH'S WITNESSES WHO HAD SOUGHT AND HAD
BEEN DENIED CONSCIENTIOUS OBJECTOR EXEMPTION, WAS CONVICTED UNDER THE
UNIVERSAL MILITARY TRAINING AND SERVICE ACT FOR REFUSAL TO SUBMIT TO
INDUCTION INTO THE ARMED FORCES.  HELD:  IN THE CIRCUMSTANCES OF THIS
CASE, THE FAILURE OF THE DEPARTMENT OF JUSTICE TO FURNISH PETITIONER
WITH A FAIR RESUME OF ALL ADVERSE INFORMATION IN THE FEDERAL BUREAU OF
INVESTIGATION REPORT DEPRIVED HIM OF THE "HEARING" PROVIDED BY SEC.
6(J) OF THE ACT; AND THE CONVICTION IS REVERSED.  PP. 398-406. 

(A)  THE REQUIREMENT OF SEC. 6(J) THAT A FAIR RESUME OF FBI REPORTS
BE MADE AVAILABLE TO THE REGISTRANT IS NOT A MATTER OF GRACE WITHIN THE
DEPARTMENT'S DISCRETION, BUT IS AN ESSENTIAL ELEMENT IN THE PROCESSING
OF CONSCIENTIOUS OBJECTOR CLAIMS.  P. 403. 

(B)  THE GOVERNMENT'S CONTENTION THAT PETITIONER FAILED TO MAKE A
TIMELY REQUEST FOR THE SUMMARY CANNOT BE SUSTAINED; NOR MAY PETITIONER
BE DEEMED TO HAVE WAIVED HIS RIGHTS IN THIS RESPECT.  P. 404. 

(C)  THE REMARKS OF THE HEARING OFFICER AT THE HEARING IN THE
DEPARTMENT DID NOT GIVE PETITIONER ADEQUATE NOTICE OF THE UNFAVORABLE
EVIDENCE IN THE FBI REPORT, AND THE HEARING WAS THEREFORE LACKING IN
BASIC FAIRNESS.  PP. 404-405. 

(D)  A FAIR RESUME IS ONE WHICH WILL PERMIT THE REGISTRANT TO DEFEND
AGAINST THE ADVERSE EVIDENCE - TO EXPLAIN IT, REBUT IT, OR OTHERWISE
DETRACT FROM ITS DAMAGING FORCE.  P. 405. 

(E)  THE GOVERNMENT'S CONTENTION THAT NO PREJUDICE WAS SHOWN AND NONE
RESULTED CANNOT BE SUSTAINED.  PP. 405-406. 

(F)  PETITIONER HAS BEEN DEPRIVED OF THE FAIR HEARING REQUIRED BY THE
ACT, A FUNDAMENTAL SAFEGUARD, AND HE NEED NOT SPECIFY THE PRECISE
MANNER IN WHICH HE WOULD HAVE USED THIS RIGHT - AND HOW SUCH USE WOULD
HAVE AIDED HIS CAUSE - IN ORDER TO COMPLAIN OF THE DEPRIVATION.  P.
406. 

SIMMONS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS ANOTHER QUESTION CONCERNING THE PROCESSING OF
CONSCIENTIOUS OBJECTOR CLAIMS UNDER THE UNIVERSAL MILITARY TRAINING AND
SERVICE ACT.  PETITIONER CONTENDS THAT THE FAILURE OF THE DEPARTMENT OF
JUSTICE TO FURNISH HIM WITH A FAIR RESUME OF ALL ADVERSE INFORMATION IN
THE FEDERAL BUREAU OF INVESTIGATION REPORT DEPRIVED HIM OF THE
"HEARING" PROVIDED BY SEC. 6(J) OF THE ACT, 62 STAT. 612, AS AMENDED,
50 U.S.C. APP. SEC. 456(J), AND THEREBY INVALIDATED HIS I-A
CLASSIFICATION.  IN THE CIRCUMSTANCES OF THIS CASE, WE CONCLUDE THAT A
FAIR RESUME, AS CONTEMPLATED IN UNITED STATES V. NUGENT, 346 U.S. 1
(1953), WAS NOT FURNISHED PETITIONER, AND THAT THIS DEPRIVED HIM OF A
FAIR HEARING WITHIN THE TERMS OF THE ACT. 

PETITIONER REGISTERED UNDER THE SELECTIVE SERVICE LAWS IN 1948.  HE
WAS THEN EMPLOYED AS A CHAUFFEUR AT THE GREAT LAKES NAVAL TRAINING
CENTER, HAVING HAD 8 YEARS OF GRADE SCHOOL AND 2 1/2 YEARS OF HIGH
SCHOOL.  AT THAT TIME, HE DID NOT CLAIM TO BE A MINISTER OR A
CONSCIENTIOUS OBJECTOR, BUT STATED THAT HE BELIEVED HIS CLASSIFICATION
SHOULD BE I-A.  THE LOCAL BOARD SO CLASSIFIED HIM.  IN 1949, PETITIONER
WAS MARRIED, AND ON JUNE 4, 1951, HE WAS GIVEN A DEPENDENCY DEFERMENT,
WHICH WAS TERMINATED ON OCTOBER 22, 1951.  WITHIN A WEEK OF HIS
RESTORATION TO I-A, PETITIONER FILED THE SPECIAL FORM FOR CONSCIENTIOUS
OBJECTORS, CLAIMING EXEMPTION FROM COMBATANT AND NON-COMBATANT
SERVICE.  IN THIS AND IN SUBSEQUENT STATEMENTS TO THE SELECTIVE SERVICE
AUTHORITIES, PETITIONER REVEALED THAT HE HAD FIRST BEEN CONTACTED BY A
MEMBER OF THE JEHOVAH'S WITNESSES IN NOVEMBER 1949; THAT HE HAD STARTED
A BIBLE STUDY COURSE AT THAT TIME AND HAD PROGRESSED GRADUALLY TOWARD
THE STATUS OF MINISTER; THAT HE HAD BECOME AN UNORDAINED MINISTER IN
DECEMBER 1950, AND AN ORDAINED MINISTER IN OCTOBER 1951; THAT HE
PREACHED FROM HOUSE TO HOUSE AND ON THE STREETS, GIVING PUBLIC
EXPRESSION TO HIS CONSCIENTIOUS OBJECTIONS TO WAR; THAT THE DEMANDS OF
HIS "MINISTRY" AND THE COMMANDS OF THE BIBLE, ADMONISHING HIM NOT TO
KILL AND TO FOLLOW GOD RATHER THAN MEN, PRECLUDED HIS PARTICIPATION IN
THE MILITARY; AND THAT HE WOULD NOT USE FORCE "UNLESS IT BE UNDER THE
SUPERVISION OF JEHOVAH GOD."  AFTER A PERSONAL APPEARANCE, IN WHICH
PETITIONER SOUGHT EXEMPTION AS A MINISTER RATHER THAN AS A
CONSCIENTIOUS OBJECTOR, THE LOCAL BOARD CONTINUED HIM IN I-A.
PETITIONER FILED AN APPEAL.  THE APPEAL BOARD TENTATIVELY FOUND AGAINST
HIM, AND REFERRED THE CASE TO THE DEPARTMENT OF JUSTICE. 

FOLLOWING AN INVESTIGATION BY THE FEDERAL BUREAU OF INVESTIGATION,
PETITIONER WAS NOTIFIED TO APPEAR FOR A HEARING.  NO COPY OF THE NOTICE
APPEARS IN THE RECORD, BUT IT APPEARS THAT THE FORM SENT TO REGISTRANTS
DURING THE PERIOD IN QUESTION STATED THAT THE HEARING OFFICER WOULD
ADVISE THE REGISTRANT "AS TO THE GENERAL NATURE AND CHARACTER" OF
ADVERSE EVIDENCE IN THE FBI REPORT IF HE REQUESTED SUCH INFORMATION "AT
ANY TIME AFTER RECEIPT BY HIM OF THE NOTICE OF HEARING AND BEFORE THE
DATE SET FOR THE HEARING."  (FN1)  THERE IS NO EVIDENCE THAT PETITIONER
MADE SUCH A REQUEST PRIOR TO THE HEARING.  HE DID, HOWEVER, MAKE A
REQUEST AT THE HEARING.  ACCORDING TO PETITIONER'S UNCONTRADICTED
TESTIMONY, THE HEARING OFFICER TOLD HIM THAT THE FBI REPORT DISCLOSED
THAT HE HAD BEEN HANGING AROUND POOLROOMS, AND THE HEARING OFFICER
ASKED HIM IF HE DID THAT NOW.  PETITIONER REPLIED THAT HE DID NOT, AND
ASKED WHAT ELSE WAS IN THE REPORT.  THE HEARING OFFICER CHANGED THE
SUBJECT.  HE SUBSEQUENTLY ASKED PETITIONER'S WIFE HOW SHE WAS FEELING
AND HOW PETITIONER WAS TREATING HER.  HER REPLY WAS "FINE."  THE
HEARING OFFICER REPORTED THAT PETITIONER IMPRESSED HIM AS SINCERE, BUT
RECOMMENDED THAT HE BE CLASSIFIED I-A BECAUSE HIS RELIGIOUS ACTIVITIES
COINCIDED WITH PRESSURE FROM THE DRAFT BOARD. 

IN ITS REPORT TO THE APPEAL BOARD, THE DEPARTMENT OF JUSTICE ADOPTED
THE HEARING OFFICER'S RECOMMENDATION, RELYING ON THE TIMING OF
PETITIONER'S RELIGIOUS ACTIVITIES AND "HIS ABUSIVENESS AND THE EXERCISE
OF PHYSICAL VIOLENCE TOWARDS HIS WIFE."  (FN2)  THE LATTER REASON
RESTED ON DATA PRESUMABLY GATHERED BY THE FBI.  ACCORDING TO THE
DEPARTMENT'S REPORT, POLICE RECORDS SHOWED THAT PETITIONER WAS ARRESTED
AND FINED IN MAY 1950 FOR HITTING HIS WIFE; THAT THE POLICE WERE CALLED
UPON TO SETTLE A "HOT ARGUMENT" IN JUNE 1950; AND THAT PETITIONER'S
WIFE CLAIMED IN JANUARY 1952 THAT HE WAS "ABUSIVE" TOWARDS HER.  ALSO
NARRATED IN THE REPORT, ALTHOUGH NOT SPECIFICALLY RELIED ON IN MAKING
THE RECOMMENDATION, IS THE STATEMENT OF A "CONFIDENTIAL INFORMANT" THAT
PRIOR TO HIS RECENT RELIGIOUS ACTIVITY PETITIONER HAD BEEN "A RATHER
HEAVY DRINKER AND CRAP SHOOTER IN AND AROUND LOCAL TAVERNS AND POOL
HALLS."  (FN3)  PETITIONER WAS CONTINUED IN I-A BY THE APPEAL BOARD. 
HE REFUSED TO SUBMIT TO INDUCTION AND THIS PROSECUTION FOLLOWED.  ON
TRIAL, PETITIONER CLAIMED THAT HE HAD NOT BEEN AFFORDED A FAIR SUMMARY
OF THE FBI REPORT AND SECURED THE ISSUANCE OF A SUBPOENA DUCES TECUM
REQUIRING PRODUCTION OF THE ORIGINAL REPORT.  ON MOTION OF THE
GOVERNMENT, AND OVER OBJECTION OF PETITIONER, THE SUBPOENA WAS
QUASHED.  THEREAFTER PETITIONER WAS CONVICTED, AND THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT AFFIRMED, 213 F.2D 901. 

AFTER APPROPRIATE INQUIRY, SHALL HOLD A HEARING WITH RESPECT TO THE
CHARACTER AND GOOD FAITH" OF THE CLAIMED CONSCIENTIOUS OBJECTIONS.  IN
UNITED STATES V. NUGENT, SUPRA, WE HELD THAT THIS "HEARING" DID NOT
ENTAIL DISCLOSURE OF THE SECRET FBI REPORTS.  IN REACHING THIS
CONCLUSION, HOWEVER, WE RELIED ON THE AVAILABILITY TO THE REGISTRANT OF
A FAIR RESUME OF THESE REPORTS: 

"  ...  WE THINK THE DEPARTMENT OF JUSTICE SATISFIES ITS DUTIES UNDER
SEC. 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 RESUME OF ANY ADVERSE EVIDENCE IN THE
INVESTIGATOR'S REPORT."  346 U.S., AT 6. 

WE DID NOT VIEW THIS PROVISION FOR A FAIR SUMMARY AS A MATTER OF
GRACE WITHIN THE DEPARTMENT'S DISCRETION, BUT RATHER AS AN ESSENTIAL
ELEMENT IN THE PROCESSING OF CONSCIENTIOUS OBJECTOR CLAIMS.  UNITED
STATES V. NUGENT REPRESENTED A BALANCING BETWEEN THE DEMANDS OF AN
EFFECTIVE SYSTEM FOR MOBILIZING THE NATION'S MANPOWER IN TIMES OF
CRISIS AND THE DEMANDS OF FAIRNESS TOWARD THE INDIVIDUAL REGISTRANT. 
WE PERMITTED THE FBI REPORT TO REMAIN SECRET BECAUSE WE WERE OF THE
VIEW THAT OTHER SAFEGUARDS IN THE PROCEEDING, PARTICULARLY THE
FURNISHING OF A FAIR RESUME, MAINTAINED THE BASIC ELEMENTS OF FAIR
PLAY.  IF THE BALANCE STRUCK IN NUGENT IS TO BE PRESERVED, THE
REGISTRANT MUST RECEIVE THE FIAR SUMMARY TO WHICH HE IS ENTITLED.  THE
DEPARTMENT EXPRESSLY RECOGNIZES THIS AND, SINCE NUGENT, HAS FURNISHED
EACH REGISTRANT, AT THE TIME HE IS NOTIFIED OF THE HEARING, WITH A
WRITTEN RESUME OF THE INFORMATION DEVELOPED IN THE FBI REPORT, A COPY
OF WHICH IS ALSO PLACED IN HIS FILE FOR USE BY THE APPEAL BOARD. 
(FN4) 

THE GOVERNMENT ASSUMES THAT THE DEPARTMENT OF JUSTICE IS REQUIRED TO
FURNISH THE REGISTRANT WITH A FAIR RESUME UPON REQUEST.  BUT IT
CONTENDS THAT PETITIONER FAILED TO MAKE A TIMELY REQUEST FOR THE
SUMMARY; THAT THE REMARKS OF THE HEARING OFFICER GAVE HIM ADEQUATE
NOTICE OF THE UNFAVORABLE EVIDENCE IN THE FBI REPORT; AND, FINALLY,
THAT THE LACK OF NOTICE, IF THERE WAS SUCH, WAS HARMLESS. 

AS TO THE REQUEST FOR THE SUMMARY, THE GOVERNMENT MUST RELY ON A
DOCUMENT WHICH IS NOT IN THE RECORD AND WHICH WAS NOT OPEN TO ATTACK OR
EXPLANATION IN THE TRIAL COURT.  INDEED, HAD THE GOVERNMENT PRODUCED
THE FORM NOTICE IN THE LOWER COURTS, PETITIONER MIGHT HAVE BEEN ABLE TO
SHOW THAT HE HAD MADE A REQUEST PRIOR TO THE HEARING.  BUT LEAVING
THESE DIFFICULTIES ASIDE, THE NOTICE REPRODUCED IN THE GOVERNMENT'S
BRIEF DOES NOT, IN OUR VIEW, CONVEY CLEARLY TO THE LAYMAN THE IDEA THAT
HE MUST MAKE A REQUEST FOR THE RESUME PRIOR TO THE HEARING OR FOREVER
WAIVE HIS RIGHTS IN THIS RESPECT.  (FN5)  THERE IS NOTHING IN EITHER
THE STATUTE OR THE REGULATIONS AUTHORIZING SUCH A WAIVER.  AND THE
DISCUSSION OF THIS POINT IN NUGENT, 346 U.S., AT 6, N. 10, WAS NOT
DIRECTED AT THE TIME OR METHOD OF REQUESTING THE RESUME, BUT ONLY AT
ITS AVAILABILITY. 

THAT PETITIONER NEVER RECEIVED A FAIR RESUME OF THE UNFAVORABLE
EVIDENCE GLEANED BY THE FBI SEEMS HARDLY ARGUABLE ON THIS RECORD.  AS
TO HIS ALLEGED GAMBLING AND DRINKING, THE HEARING OFFICER MERELY TOLD
PETITIONER THAT HE WAS REPORTED TO HAVE BEEN HANGING AROUND POOL
ROOMS.  AND AS TO THE REPORTED INCIDENTS OF VIOLENCE AND ABUSE TOWARDS
HIS WIFE, THE HEARING OFFICER, IN AN APPARENT ASIDE, ADVANCED ONLY THE
GENERAL QUERY TO PETITIONER'S WIFE, ASKING HER HOW PETITIONER WAS
TREATING HER NOW.  A FAIR RESUME IS ONE WHICH WILL PERMIT THE
REGISTRANT TO DEFEND AGAINST THE ADVERSE EVIDENCE - TO EXPLAIN IT,
REBUT IT, OR OTHERWISE DETRACT FROM ITS DAMAGING FORCE.  THE REMARKS OF
THE HEARING OFFICER AT MOST AMOUNTED TO VAGUE HINTS, AND THESE
APPARENTLY FAILED TO ALERT PETITIONER TO THE DANGERS AHEAD.  CERTAINLY
THEY AFFORDED HIM NO FAIR NOTICE OF THE ADVERSE CHARGES IN THE REPORT. 
THE CONGRESS, IN PROVIDING FOR A HEARING, DID NOT INTEND FOR IT TO BE
CONDUCTED ON THE LEVEL OF A GAME OF BLINDMAN'S BUFF.  THE SUMMARY WAS
INADEQUATE AND THE HEARING IN THE DEPARTMENT WAS THEREFORE LACKING IN
BASIC FAIRNESS. 

THE GOVERNMENT'S ARGUMENT THAT NO PREJUDICE WAS SHOWN AND NONE
RESULTED CAN BE READILY DISPOSED OF.  RELYING ON A CASE CONCERNED WITH
CONSTITUTIONAL RESTRICTIONS ON THE STATES IN REGULATING PUBLIC
UTILITIES, MARKET STREET RAILWAY CO. V. RAILROAD COMM'N OF CALIFORNIA,
324 U.S. 548, IT CONTENDS THAT THE PETITIONER MUST SPECIFICALLY SHOW
PREJUDICE IN ORDER TO QUESTION THE FAIRNESS OF THE RESUME.  THE HOLDING
OF THE MARKET STREET RAILWAY CASE WAS THAT THE DUE PROCESS CLAUSE WAS
"NOT TO BE TRIVIALIZED BY FORMAL OBJECTIONS THAT HAVE NO SUBSTANTIAL
BEARING ON THE ULTIMATE RIGHTS OF PARTIES," THAT THE COMMISSION COULD
MAKE "INCIDENTAL REFERENCE" TO THE RAILROAD'S OWN REPORTS TO VERIFY ITS
JUDGMENT, FORMULATED ON THE BASIS OF THE ENTIRE RECORD, WITHOUT
INTRODUCING THE REPORTS IN EVIDENCE.  ID., AT 562.  WE ARE NOT NOW
DEALING WITH CONSTITUTIONAL LIMITATIONS.  WE ARE ENDEAVORING TO APPLY A
PROCEDURE, SET FORTH BY CONGRESS, IN ACCORDANCE WITH THE STATUTORY PLAN
AND THE CONCEPTS OF BASIC FAIRNESS WHICH UNDERLIE ALL OUR LEGISLATION. 
WE HAVE HELD THAT TO MEET ITS DUTY UNDER SEC. 6(J) THE DEPARTMENT MUST
FURNISH THE REGISTRANT WITH A FAIR RESUME OF THE FBI REPORT.  IT IS
CLEAR IN THE CIRCUMSTANCES OF THIS CASE THAT IT HAS FAILED TO DO SO,
AND THAT PETITIONER HAS THEREBY BEEN DEPRIVED OF AN OPPORTUNITY TO
ANSWER THE CHARGES AGAINST HIM.  THIS IS NOT AN INCIDENTAL INFRINGEMENT
OF TECHNICAL RIGHTS.  PETITIONER HAS BEEN DEPRIVED OF THE FAIR HEARING
REQUIRED BY THE ACT, A FUNDAMENTAL SAFEGUARD, AND HE NEED NOT SPECIFY
THE PRECISE MANNER IN WHICH HE WOULD HAVE USED THIS RIGHT - AND HOW
SUCH USE WOULD HAVE AIDED HIS CAUSE - IN ORDER TO COMPLAIN OF THE
DEPRIVATION. 

IT BEING EVIDENT FROM THE RECORD BEFORE THE COURT THAT THE DEPARTMENT
OF JUSTICE HAS FAILED TO PROVIDE PETITIONER WITH A FAIR RESUME OF THE
FBI REPORT, IT IS UNNECESSARY FOR US TO PASS ON PETITIONER'S FURTHER
CONTENTION THAT THE TRIAL COURT ERRED IN QUASHING HIS SUBPOENA DUCES
TECUM.  REVERSED. 

FN1  THE FORM NOTICE APPEARS AS AN APPENDIX TO THE GOVERNMENT'S
BRIEF, P. 55.  THE PERTINENT PARAGRAPH FOLLOWS: 

"2.  UPON REQUEST THEREFOR BY THE REGISTRANT AT ANY TIME AFTER
RECEIPT BY HIM OF THE NOTICE OF HEARING AND BEFORE THE DATE SET FOR THE
HEARING, THE HEARING OFFICER WILL ADVISE THE REGISTRANT AS TO THE
GENERAL NATURE AND CHARACTER OF ANY EVIDENCE IN HIS POSSESSION WHICH IS
UNFAVORABLE TO, AND TENDS TO DEFEAT, THE CLAIM OF THE REGISTRANT SUCH
REQUEST BEING GRANTED TO ENABLE THE REGISTRANT MORE FULLY TO PREPARE TO
ANSWER AND REFUTE AT THE HEARING SUCH UNFAVORABLE EVIDENCE." 

FN2  THE COMPLETE TEXT OF THE REPORT IS AS FOLLOWS: 

"REGISTRANT IS TWENTY-FIVE YEARS OF AGE, MARRIED, BORN IN ILLINOIS
AND HAS COMPLETED APPROXIMATELY TWO YEARS OF HIGH SCHOOL.  AT THE
PRESENT TIME HE IS EMPLOYED AS A CHAUFFEUR.  HE WAS FIRST CONTACTED BY
A MEMBER OF THE JEHOVAH'S WITNESSES SECT IN NOVEMBER 1949, ALTHOUGH THE
EXACT DATE OF MEMBERSHIP IS NOT REFLECTED. 

"THE REGISTRANT BELIEVES IN A SUPREME BEING AND DESCRIBES THE NATURE
OF HIS BELIEF BY CITING VARIOUS PARTS OF THE SCRIPTURES, IN PART, AS
FOLLOWS: 

"'ROMANS 13:1 -  ...  THAT JEHOVAH GOD AND CHRIST JESUS ARE THE
HIGHER POWERS, AND I RECOGNIZE THEM AS THE SUPREME POWERS.  PETER AT
ACTS 5:29 ADMONISHING ALL FOOTSTEP FOLLOWERS OF CHRIST JESUS THAT "WE
MUST OBEY GOD RATHER THAN MEN."  ALSO PAUL AT 2 COR.  4:4  ...  SATAN
THE DEVIL IS THE GOD OF THIS SYSTEM OF THINGS.  SHOWING THAT WE SHOULD
OBEY THE CREATOR RATHER THAN THE CREATION OF GOD.  JEHOVAH GOD IN ONE
OF HIS TEN COMMANDMENTS AT EX. 20:13 "THOU SHALL NOT KILL."' 
"REGISTRANT RELATES THAT IN NOVEMBER 1949, AT THE SUGGESTION OF ONE
CLARENCE HOWZE, HE STARTED A BIBLE BOOK STUDY AND AS HE PROGRESSED
WANTED MORE AND MORE TO BECOME A MINISTER OF TRUTH.  AT THE PRESENT
TIME HE IS RECEIVING TRAINING FROM THE WATCHTOWER BIBLE AND TRACT
SOCIETY.  AS TO THE QUESTION REGARDING USE OF FORCE HE STATES 'NONE
WHATSOEVER.  UNLESS IT BE UNDER THE SUPERVISION OF JEHOVAH GOD.'  HE
CLAIMS TO ENGAGE IN THE WORK OF HIS RELIGION BY PREACHING FROM HOUSE TO
HOUSE AND ON THE STREETS. 

"AT HIS PRESENT PLACE OF EMPLOYMENT HE HAS BEEN SEEN READING THE
BIBLE DURING LUNCH HOUR AND DISCUSSING SAME WITH A FEW CO-WORKERS. 
REFERENCES, ALL OF WHOM ARE MEMBERS OF THE SAME SECT, BELIEVE
REGISTRANT IS SINCERE, AS DO HIS NEIGHBORS.  A CONFIDENTIAL INFORMANT,
OF KNOWN RELIABILITY, REPORTS THAT DURING THE LAST SEVEN OR EIGHT
MONTHS REGISTRANT WAS ACTIVELY ENGAGED IN DISTRIBUTING PAMPHLETS; THAT
PRIOR TO THAT TIME REGISTRANT WAS PERSONALLY KNOWN TO HIM AS A RATHER
HEAVY DRINKER AND CRAP SHOOTER IN AND AROUND LOCAL TAVERNS AND POOL
HALLS.  THIS INFORMANT BELIEVES REGISTRANT IS NOW SINCERE.  REGISTRANT
STATES HE HAS CHANGED HIS WAYS AND NOW PRAYS MANY TIMES DURING THE
DAY.  HIS WIFE ALSO STATES HE HAS CHANGED.  IT IS TO BE NOTED THAT
REGISTRANT IS REPORTED TO HAVE HAD A VERY POOR HOME LIFE. 

"POLICE RECORDS REFLECT THAT REGISTRANT WAS ARRESTED MAY 29, 1950 ON
A COMPLAINT BY HIS WIFE THAT HE PULLED HER OUT OF A CAR AND HIT HER IN
THE FACE - FINED $13.60; ON JUNE 12, 1950 POLICE WERE CALLED TO SETTLE
A 'HOT ARGUMENT' AND ON JANUARY 6, 1952, WIFE CLAIMED REGISTRANT WAS
ABUSIVE.  POLICE SETTLED LAST TWO MATTERS SO NO CHARGES WERE FILED. 

"THE FILE ALSO REFLECTS THAT REGISTRANT WAS MAILED HIS QUESTIONNAIRE
ON DECEMBER 6, 1948 AND DID NOT SIGN THAT PART (SERIES XIV) RESERVED
FOR A CONSCIENTIOUS OBJECTION.  HE WAS CLASSIFIED I-A ON DECEMBER 23,
1948 AND MARRIED HIS PRESENT WIFE ON MARCH 5, 1949. 

"THE HEARING OFFICER REPORTS REGISTRANT IMPRESSED HIM AS SINCERE BUT
NOTES THAT HIS RELIGIOUS ACTIVITIES ARE COINCIDENT WITH PRESSING DRAFT
ACTIVITIES BY OFFICIALS AND, THEREFORE, RECOMMENDS A I-A
CLASSIFICATION. 

"FROM THE AVAILABLE INFORMATION IT APPEARS THAT REGISTRANT HAD
LITTLE, IF ANY, RELIGIOUS TRAINING PRIOR TO NOVEMBER 1949 AND IT WAS
NOT UNTIL AFTER HIS 3-A CLASSIFICATION WAS CHANGED TO I-A THAT HE
EVIDENCED ANY CONSCIENTIOUS OBJECTION.  FROM THE TIME HE FIRST ATTENDED
A BIBLE STUDY CLASS UNTIL APPROXIMATELY OCTOBER 1951, REGISTRANT HAD
LITTLE LESS THAN TWO YEARS OF JEHOVAH'S WITNESS RELIGIOUS TRAINING.  IN
ADDITION TO THE FACT THAT HIS RELIGIOUS ACTIVITIES COINCIDE WITH
PRESSING INDUCTION POSSIBILITIES, REGISTRANT'S ABSORPTION AND SINCERITY
AS TO HIS NEWLY FOUND RELIGION IS RENDERED MORE QUESTIONABLE BY HIS
ABUSIVENESS AND THE EXERCISE OF PHYSICAL VIOLENCE TOWARDS HIS WIFE.  IN
THIS CONNECTION POLICE RECORDS REFLECT A COMPLAINT BY HIS WIFE AS LATE
AS JANUARY 6, 1952. 

"AFTER CONSIDERATION OF THE ENTIRE FILE AND RECORD, THE DEPARTMENT OF
JUSTICE FINDS THAT THE REGISTRANT'S OBJECTIONS TO COMBATANT AND
NONCOMBATANT SERVICE ARE NOT SUSTAINED.  IT IS, THEREFORE, RECOMMENDED
TO YOUR BOARD THAT REGISTRANT'S CLAIM FOR EXEMPTION FROM BOTH COMBATANT
AND NONCOMBATANT TRAINING AND SERVICE BE NOT SUSTAINED." 

FN3  THIS INFORMANT HAD ALSO STATED THAT PETITIONER HAD CHANGED HIS
WAYS AND NOW SEEMED SINCERE.  WHILE THE STATEMENT AS A WHOLE MAY
THEREFORE BE FAVORABLE TO PETITIONER'S CLAIM, THE DISCLOSURE OF
PETITIONER'S GAMBLING AND DRINKING ACTIVITIES WAS CERTAINLY ADVERSE. 

FN4  THIS PROCEDURE WAS NOT IN EFFECT AT THE TIME PETITIONER WAS
NOTIFIED TO APPEAR FOR HIS HEARING. 

FN5  REGISTRANTS ARE NOT TO BE TREATED AS THOUGH THEY WERE ENGAGED IN
FORMAL LITIGATION ASSISTED BY COUNSEL.  UNITED STATES EX REL. BERMAN V.
CRAIG, 207 F.2D 888; SMITH V. UNITED STATES, 157 F.2D 176. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, ADHERING TO THEIR DISSENT
IN NUGENT V. UNITED STATES, 346 U.S. 1, 13, JOIN IN THIS OPINION AND
JUDGMENT. 

MR. JUSTICE REED WOULD AFFIRM ON THE GROUND THAT, AS NO SUMMARY WAS
REQUESTED, IT WAS NOT NECESSARY TO FURNISH MORE TO THE REGISTRANT THAN
WAS GIVEN BY THE HEARING OFFICER.  SEE GONZALES V. UNITED STATES,
DECIDED TODAY, POST, P. 407. 

MR. JUSTICE MINTON, DISSENTING. 

EVEN IF THE BOARD HAS DENIED PETITIONER A FAIR RESUME OF ALL ADVERSE
INFORMATION IN THE FBI REPORTS, IT DOES NOT APPEAR TO HAVE BEEN DONE
ARBITRARILY OR CAPRICIOUSLY, AND THE JUDGMENT OF THE BOARD IN DOING SO
WAS ALLOWABLE "EVEN IF ERRONEOUS."  IT TAKES MORE THAN DISAGREEMENT
WITH THE BOARD TO DESTROY JURISDICTION, THE ONLY CONDITION UPON WHICH
COURTS MAY INTERFERE.  I WOULD AFFIRM. 
..END :











GONZALES V. UNITED STATES 348 U.S. 407 


NO. 69.  ARGUED FEBRUARY 1-2, 1955 - DECIDED MARCH 14, 1955 - 212 F.2D
71, REVERSED. 


PETITIONER, A MEMBER OF JEHOVAH'S WITNESSES WHO HAD CLAIMED AND HAD
BEEN DENIED CONSCIENTIOUS OBJECTOR EXEMPTION, WAS CONVICTED UNDER THE
UNIVERSAL MILITARY TRAINING AND SERVICE ACT FOR REFUSAL TO SUBMIT TO
INDUCTION INTO THE ARMED FORCES.  HELD:  THE FAILURE TO FURNISH
PETITIONER WITH A COPY OF THE RECOMMENDATION MADE BY THE DEPARTMENT OF
JUSTICE TO THE APPEAL BOARD UNDER THE PROVISIONS OF SEC. 6(J) OF THE
ACT DEPRIVED PETITIONER OF THE RIGHT TO PRESENT HIS SIDE OF THE CASE TO
THE APPEAL BOARD; AND THE CONVICTION IS REVERSED.  PP. 408-417. 

(A)  ALTHOUGH NOT EXPRESSLY REQUIRED BY SEC. 6(J) OF THE ACT, IT IS
IMPLICIT IN THE ACT AND REGULATIONS THAT A COPY OF THE RECOMMENDATION
OF THE DEPARTMENT BE FURNISHED THE REGISTRANT AT THE TIME IT IS
FORWARDED TO THE APPEAL BOARD, AND THAT HE BE AFFORDED AN OPPORTUNITY
TO REPLY.  PP. 411-414, 417. 

(B)  THE RIGHT TO FILE A STATEMENT BEFORE THE THE APPEAL BOARD
INCLUDES THE RIGHT TO FILE A MEANINGFUL STATEMENT, ONE BASED ON ALL THE
FACTS IN THE FILE AND MADE WITH AWARENESS OF THE RECOMMENDATIONS AND
ARGUMENTS TO BE COUNTERED.  PP. 414-416. 

(C)  PETITIONER'S RIGHTS WERE NOT ADEQUATELY PROTECTED BY THE
PROVISION IN THE REGULATIONS FOR A MODE OF "REHEARING."  PP. 416-417. 

GONZALES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PETITIONER WAS CONVICTED UNDER THE UNIVERSAL MILITARY TRAINING AND
SERVICE ACT FOR REFUSAL TO SUBMIT TO INDUCTION INTO THE ARMED FORCES. 
120 F. SUPP. 730.  THE COURT OF APPEALS AFFIRMED.  212 F.2D 71.  THIS
COURT GRANTED CERTIORARI.  348 U.S. 811.  REVERSED, P. 417. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS ANOTHER PROSECUTION UNDER 62 STAT. 622, 50 U.S.C. APP. SEC.
462(A), FOR REFUSAL TO SUBMIT TO INDUCTION INTO THE ARMED SERVICES. 
THE ONLY QUESTION NECESSARY TO THE DECISION OF THIS CASE IS WHETHER
PETITIONER, CLAIMING EXEMPTION BECAUSE OF CONSCIENTIOUS OBJECTIONS TO
PARTICIPATION IN WAR, WAS ENTITLED TO RECEIVE A COPY OF THE
RECOMMENDATION MADE BY THE DEPARTMENT OF JUSTICE TO THE APPEAL BOARD
UNDER THE PROVISIONS OF SEC. 6(J) OF THE UNIVERSAL MILITARY TRAINING
AND SERVICE ACT, 62 STAT. 612, AS AMENDED, 50 U.S.C. APP. SEC. 456(J). 
THE TRIAL JUDGE HELD THAT HE WAS NOT, AND THAT THE CLASSIFICATION OF
PETITIONER AS I-A WAS VALID.  PETITIONER WAS FOUND GUILTY AS CHARGED,
120 F. SUPP. 730, AND THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
AFFIRMED, 212 F.2D 71. 

PETITIONER REGISTERED UNDER THE SELECTIVE SERVICE LAWS ON JANUARY 4,
1950.  IN HIS CLASSIFICATION QUESTIONNAIRE, FILED ON MARCH 9, 1951, HE
CLAIMED EXEMPTION AS A MINISTER AND CONSCIENTIOUS OBJECTOR, HIS CLAIMS
STEMMING FROM HIS ASSOCIATION WITH THE JEHOVAH'S WITNESSES.  UNDER THE
DOCTRINES OF THIS SECT, EACH MEMBER IS A MINISTER; AND THEIR TENETS ARE
WIDELY INTERPRETED AS BANNING PERSONAL PARTICIPATION IN POLITICAL
WARS.  SEE SICURELLA V. UNITED STATES, ANTE, P. 385.  ONLY PETITIONER'S
CONSCIENTIOUS OBJECTOR CLAIM IS NOW BEFORE THE COURT. 

PETITIONER'S SECULAR EDUCATION CONSISTED OF ELEMENTARY SCHOOL
TRAINING AND TWO YEARS OF HIGH SCHOOL.  ON SEPTEMBER 27, 1948, HE
MARRIED A MEMBER OF THE JEHOVAH'S WITNESSES.  THE RECORD INDICATES
THAT, BEGINNING IN NOVEMBER 1949, HE RECEIVED "PRIVATE INSTRUCTION" IN
THE BIBLE FROM A MEMBER OF THE SECT, AND THAT IN DECEMBER HE BEGAN
"ACTIVELY SERVING" AS A JEHOVAH'S WITNESS.  ON JANUARY 4, 1950,
PETITIONER REGISTERED UNDER THE SELECTIVE SERVICE LAWS.  THE FOLLOWING
MONTH HE WAS ORDAINED AS A MINISTER OF THE WITNESSES.  PETITIONER'S
RELIGIOUS AFFILIATION, AT LEAST AS LATE AS 1948, HAD BEEN CATHOLIC, AND
HIS PARENTS AND FAMILY WERE CATHOLIC.  HE BEGAN WORK WITH THE GREAT
LAKES STEEL CORPORATION, A STEEL PLANT MANUFACTURING ARTICLES OF WAR,
ON AUGUST 19, 1950.  ON OCTOBER 1, 1950, PETITIONER WAS RECOGNIZED AS A
"PIONEER" BY THE JEHOVAH'S WITNESSES AND EMBARKED ON MORE EXTENSIVE
RELIGIOUS ACTIVITIES.  (FN1) 

IN HIS SPECIAL FORM FOR CONSCIENTIOUS OBJECTORS, FILED ON APRIL 3,
1951, PETITIONER CLAIMED EXEMPTION FROM COMBATANT AND NONCOMBATANT
SERVICE.  HE RELIED ON "THE TEN COMMANDMENTS OF GOD FOUND IN THE BIBLE"
TO SUPPORT HIS CLAIM.  HE SAID HE WOULD USE FORCE "IN PROTECTION OF
PERSON AND MINISTERIAL ACTIVITIES, BUT AT NO TIME IN AGGRESSION." 
PETITIONER DECLINED TO RELY ON THE OFFICIAL PRONOUNCEMENTS OF THE
JEHOVAH'S WITNESSES TO SUPPORT HIS POSITION, STATING THAT "I AM BASING
MYSELF ENTIRELY ON MY KNOWLEGE OF THE BIBLE."  HE SUPPORTED HIS CLAIMS,
HOWEVER, WITH AN AFFIDAVIT SIGNED BY 22 PERSONS, ATTESTING TO
PETITIONER'S ACTIVITY IN THE WITNESSES FOR THE 18 MONTHS PRECEDING
APRIL 8, 1951, AND WITH A CERTIFICATE OF 4 PERSONS STATING THAT
PETITIONER WAS CONDUCTING WEEKLY BIBLE STUDIES WITH THEM.  PETITIONER
HAD NOT GIVEN PUBLIC EXPRESSION TO HIS VIEWS "OTHER THAN" THROUGH HIS
GENERAL RELIGIOUS ACTIVITY. 

AFTER AN INTERVENING CLASSIFICATION OF III-A (DEPENDENCY DEFERMENT),
PETITIONER WAS CLASSIFIED I-A ON JANUARY 8, 1952.  ON FEBRUARY 19,
1952, FOLLOWING A PERSONAL APPEARANCE, THE LOCAL BOARD DECIDED
UNANIMOUSLY TO CONTINUE PETITIONER IN I-A, AND PETITIONER NOTED AN
APPEAL.  THE APPEAL BOARD MADE A TENTATIVE FINDING AGAINST HIM AND
REFERRED THE CASE TO THE DEPARTMENT OF JUSTICE.  THE FBI THEN MADE ITS
INVESTIGATION AND PETITIONER WAS GIVEN A HEARING.  THE HEARING OFFICER,
WHILE NOTING THAT PETITIONER "APPEARED TO BE A SINCERE JEHOVAH'S
WITNESS AND AS SUCH IS CONSCIENTIOUSLY OPPOSED TO WAR," RECOMMENDED
DENIAL OF THE CONSCIENTIOUS OBJECTOR CLASSIFICATION.  THE DEPARTMENT OF
JUSTICE, IN ITS REPORT TO THE APPEAL BOARD, MADE A SIMILAR
RECOMMENDATION.  IN ACCEPTING THE VIEW EXPRESSED BY THE HEARING
OFFICER, THE DEPARTMENT FOUND SUPPORT IN "THE FACT THAT REGISTRANT
BECAME A MEMBER OF THE JEHOVAH'S WITNESS SECT ONE MONTH AFTER HIS
SELECTIVE SERVICE SYSTEM REGISTRATION IN JANUARY, 1950, DESPITE THE
FACT THAT HIS WIFE HAD BEEN A MEMBER FOR MANY YEARS."  (FN2)  NO COPY
OF THIS REPORT OR OTHER NOTICE OF THE RECOMMENDATION WAS GIVEN
PETITIONER PRIOR TO THE APPEAL BOARD'S DECISION.  ON DECEMBER 11, 1952,
THE APPEAL BOARD UNANIMOUSLY CLASSIFIED PETITIONER I-A, AND UPON HIS
REFUSAL TO SUBMIT TO INDUCTION THIS PROSECUTION WAS BROUGHT. 

PETITIONER CONTENDS THAT HIS CLASSIFICATION IS INVALID BECAUSE HE WAS
NOT FURNISHED A COPY OF THE JUSTICE DEPARTMENT'S RECOMMENDATION TO THE
APPEAL BOARD AND ACCORDED AN OPPORTUNITY TO REPLY THERETO.  SECTION
6(J) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, OUTLINING THE
PROCEDURE IN CONSCIENTIOUS OBJECTOR CASES, IS SILENT ON THIS QUESTION. 
(FN3)  BUT A SIMILAR SILENCE WAS NOT HELD TO BE A CONSIDERED REJECTION
OF THE RIGHT OF A REGISTRANT TO BE SUPPLIED WITH A FAIR RESUME OF
ADVERSE EVIDENCE IN THE FBI REPORTS, UNITED STATES V. NUGENT, 346 U.S.
1 (1953); SIMMONS V. UNITED STATES, ANTE, P. 397, AND WE BELIEVE IT
ALSO TO BE IMPLICIT IN THE ACT AND REGULATIONS - VIEWED AGAINST OUR
UNDERLYING CONCEPTS OF PROCEDURAL REGULARITY AND BASIC FAIR PLAY - THAT
A COPY OF THE RECOMMENDATION OF THE DEPARTMENT BE FURNISHED THE
REGISTRANT AT THE TIME IT IS FORWARDED TO THE APPEAL BOARD, AND THAT HE
BE AFFORDED AN OPPORTUNITY TO REPLY.  (FN4) 

IT IS TRUE THAT THE RECOMMENDATION OF THE DEPARTMENT IS ADVISORY.  50
U.S.C. APP. SEC.  456(J).  INDEED, THIS VERY CONSIDERATION LED US IN
UNITED STATES V. NUGENT, SUPRA, TO ALLOW CONSIDERABLE LATITUDE IN THE
AUXILIARY HEARING WHICH CULMINATED IN THE DEPARTMENT'S REPORT.  A
NATURAL COROLLARY OF THIS, HOWEVER, IS THAT A REGISTRANT BE GIVEN AN
OPPORTUNITY TO REBUT THIS RECOMMENDATION WHEN IT COMES TO THE APPEAL
BOARD, THE AGENCY WITH THE ULTIMATE RESPONSIBILITY FOR CLASSIFICATION. 
FOR IN THE USUAL CASE IT IS THE APPEAL BOARD WHICH RENDERS THE
SELECTIVE SERVICE DETERMINATION CONSIDERED "FINAL" IN THE COURTS, NOT
TO BE OVERTURNED UNLESS THERE IS NO BASIS IN FACT.  ESTEP V. UNITED
STATES, 327 U.S. 114. 

IT SHOULD BE EMPHASIZED, MOREOVER, THAT IN CONTRAST TO THE STRICTLY
APPELLATE FUNCTIONS IT EXERCISES IN OTHER CASES, THE APPEAL BOARD IN
HANDLING CONSCIENTIOUS OBJECTOR CLAIMS IS THE FIRST SELECTIVE SERVICE
BOARD TO RECEIVE THE DEPARTMENT'S RECOMMENDATION, AND IS USUALLY THE
ONLY DECISION-MAKING BODY TO PASS ON THE ENTIRE FILE.  AN OPPORTUNITY
FOR THE REGISTRANT TO REPLY IS THEREFORE THE ONLY MEANS OF INSURING
THAT THIS BOARD WILL HAVE ALL OF THE RELEVANT DATA.  FURTHERMORE, IF
THE REGISTRANT IS TO PRESENT HIS CASE EFFECTIVELY TO THE APPEAL BOARD,
HE MUST BE COGNIZANT OF ALL THE FACTS BEFORE THE BOARD AS WELL AS THE
OVER-ALL POSITION OF THE DEPARTMENT OF JUSTICE.  SEE OHIO BELL
TELEPHONE CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292, 300-305; UNITED
STATES V. ABILENE & SO. RY. CO., 265 U.S. 274, 289; INTERSTATE COMMERCE
COMM'N V. LOUISVILLE & N.R. CO., 227 U.S. 88, 93. 

THE FACTS HERE UNDERSCORE THIS NECESSITY.  THE DEPARTMENT IN ITS
RECOMMENDATION EMPHASIZES THAT THE PETITIONER WAS OF A CATHOLIC FAMILY
AND CONCLUDED THAT PETITIONER'S "AFFILIATION WITH JEHOVAH'S WITNESSES
HAS BEEN TOO RECENT AND TOO CLOSELY RELATED TO HIS DRAFT STATUS TO
WARRANT THE ACCEPTANCE OF HIS CONSCIENTIOUS OBJECTOR POSITION AS
GENUINE.  THE FACT THAT REGISTRANT BECAME A MEMBER OF THE JEHOVAH'S
WITNESS SECT ONE MONTH AFTER HIS  ...  REGISTRATION  ...  LENDS WEIGHT
TO THIS CONCLUSION."  BUT PETITIONER CONTENDS HE WAS A MEMBER OF THE
WITNESSES BEFORE HE REGISTERED, AND THERE IS TESTIMONY THAT HE HAD NOT
BEEN OF THE CATHOLIC BELIEF SINCE 1948.  NOR WAS THIS FACET OF THE CASE
EXPLORED AT THE DEPARTMENT OF JUSTICE HEARING.  IF PETITIONER HAD BEEN
AFFORDED A COPY OF THE RECOMMENDATION, HE MIGHT HAVE SUCCESSFULLY
CONTRADICTED THE BASIS OF THE DEPARTMENT'S CONCLUSION OR DIMINISHED THE
FORCEFULNESS OF ITS THRUST.  THE RECORD ALSO DISCLOSES THAT THE LOCAL
BOARD APPARENTLY PLACED LITTLE EMPHASIS ON THE LATENESS OF PETITIONER'S
CONVERSION, INQUIRING INSTEAD ABOUT THE TENETS OF THE SECT AND
PETITIONER'S EMPLOYMENT IN THE STEEL PLANT.  ON APPEAL, IT WAS LOGICAL
FOR PETITIONER TO DIRECT HIS ATTENTION TO THESE MATTERS.  BUT THE
DEPARTMENT OF JUSTICE BASED ITS REJECTION OF HIS CLAIM ON THE PROXIMITY
OF PETITIONER'S CONVERSION TO HIS REGISTRATION FOR THE DRAFT, A
CONTENTION OF WHICH HE HAD NO KNOWLEDGE AND NO OPPORTUNITY TO MEET. 
THE PETITIONER WAS ENTITLED TO KNOW THE THRUST OF THE DEPARTMENT'S
RECOMMENDATION SO HE COULD MUSTER HIS FACTS AND ARGUMENTS TO MEET ITS
CONTENTIONS.  SEE MORGAN V. UNITED STATES, 304 U.S. 1, 18.  (FN5) 

NOR IS THIS REQUIREMENT INCONSISTENT WITH THE VIEWS EXPRESSED IN
UNITED STATES V. NUGENT, SUPRA, THAT SELECTIVE SERVICE PROCEDURES,
"GEARED TO MEET THE IMPERATIVE NEEDS OF MOBILIZATION AND NATIONAL
VIGILANCE," ARE NOT TO BE DELAYED BY "LITIGIOUS INTERRUPTION."  THE
REGISTRANT IN THAT CASE SOUGHT TO MAKE THE AUXILIARY PROCEDURE OF THE
DEPARTMENT OF JUSTICE "A FULL-SCALE TRIAL FOR EACH APPEALING
REGISTRANT."  WE REFUSED TO COMPEL "AN ALL-OUT COLLATERAL ATTACK AT THE
DEPARTMENT OF JUSTICE HEARING ON THE TESTIMONY OBTAINED IN ITS
PREHEARING INVESTIGATION."  HERE ALL THAT IS INVOLVED IS THE MAILING OF
A COPY OF THE DEPARTMENT'S RECOMMENDATION TO THE REGISTRANT AND
PERMITTING A REPLY TO THE APPEAL BOARD.  THE REGISTRANT ALREADY HAS THE
RIGHT TO FILE A STATEMENT WITH THE APPEAL BOARD.  (FN6)  JUST AS THE
RIGHT TO A HEARING MEANS THE RIGHT TO A MEANINGFUL HEARING, UNITED
STATES V. NUGENT, SUPRA; SIMMONS V. UNITED STATES, SUPRA, SO THE RIGHT
TO FILE A STATEMENT BEFORE THE APPEAL BOARD INCLUDES THE RIGHT TO FILE
A MEANINGFUL STATEMENT, ONE BASED ON ALL THE FACTS IN THE FILE AND MADE
WITH AWARENESS OF THE RECOMMENDATIONS AND ARGUMENTS TO BE COUNTERED. 

A SIMILAR PROBLEM HAS ARISEN ONCE BEFORE IN THE ADMINISTRATION OF OUR
SELECTIVE SERVICE LAWS.  UNDER THE SELECTIVE TRAINING AND SERVICE ACT
OF 1940, LOCAL BOARDS REFERRED TO PANELS OF CLERGYMEN AND LAYMEN OF A
PARTICULAR FAITH QUESTIONS CONCERNING THE VALIDITY OF MINISTERIAL AND
DIVINITY STUDENT CLAIMS.  THE PANEL INTERVIEWED THE REGISTRANT AND MADE
A REPORT TO THE LOCAL BOARD.  IN SUSTAINING THE USE OF THESE PANELS,
THIS COURT EMPHASIZED THE RIGHT OF THE REGISTRANT UNDER THE REGULATIONS
TO EXAMINE THE REPORT AND "EXPLAIN OR CORRECT IT, OR DENY IT."  EAGLES
V. SAMUELS, 329 U.S. 304, 313.  SEE ALSO EAGLES V. HOROWITZ, 329 U.S.
317, 323.  AND, IN A CASE WHERE IT WAS NOT SHOWN THAT THE REGISTRANT
HAD ACCESS TO THE PANEL'S REPORT, JUDGE LEARNED HAND SAID: 

"AS THE CASE COMES TO USE, THE BOARD MADE USE OF EVIDENCE OF WHICH
THE REGISTRANT MAY HAVE BEEN UNAWARE, AND WHICH HE HAD NO CHANCE TO
ANSWER:  A PRIME REQUIREMENT OF ANY FAIR HEARING."  UNITED STATES V.
BALOGH, 157 F.2D 939, 943, JUDGMENT VACATED ON OTHER GROUNDS, 329 U.S.
692. 

SEE ALSO BREWER V. UNITED STATES, 211 F.2D 864 (C.A. 4TH CIR. 1954). 

SO BASIC, INDEED, IS THIS "PRIME REQUIREMENT OF ANY FAIR HEARING"
THAT COUNSEL FOR THE GOVERNMENT CONTENDED FOR THE FIRST TIME IN ORAL
ARGUMENT THAT THE RIGHTS OF THE REGISTRANT WERE AMPLY PROTECTED BY THE
PROVISION IN THE REGULATIONS FOR A MODE OF "REHEARING."  IN SHORT, THE
ARGUMENT IS THAT AFTER THE APPEAL BOARD DECIDES AGAINST THE REGISTRANT
AND HIS FILE IS RETURNED TO THE LOCAL BOARD, HE HAS THE RIGHT UNDER THE
SELECTIVE SERVICE REGULATIONS TO EXAMINE ALL INFORMATION IN HIS FILE,
INCLUDING THE RECOMMENDATION OF THE DEPARTMENT, 32 CFR SEC.
1606.32(A)(1); 32 CFR SEC. 1606.38(C).  THE REGISTRANT WOULD THEN HAVE
A RIGHT TO REQUEST A REOPENING OF HIS CLASSIFICATION, 32 CFR SEC.
1625.1(A); 32 CFR SEC. 1625.2, IF HE SUBMITTED "PROOF OF ERROR IN
DOCUMENTS SUBMITTED TO THE APPEAL BOARD BY THE DEPARTMENT OF JUSTICE." 
(FN7)  MOREOVER, HE MAY PRESENT HIS CONTENTIONS TO THE DIRECTOR OF
SELECTIVE SERVICE OR THE STATE DIRECTOR OF SELECTIVE SERVICE,
REQUESTING A REOPENING OF HIS CLASSIFICATION OR A RECONSIDERATION BY
THE APPEAL BOARD, 32 CFR SEC. 1625.3(A); 32 CFR SEC. 1626.61(A). 

WE BELIEVE THESE REMEDIES TO BE TOO LITTLE AND TOO LATE.  TOO LITTLE,
BECAUSE THE RIGHT TO PRESENT PETITIONER'S SIDE OF THE CASE IS BROADER
THAN THE BARE RIGHT TO CORRECT "ERRORS" MADE BY THE DEPARTMENT IN ITS
RECOMMENDATION.  TOO LATE, BECAUSE, EXCEPT WITH THE PERMISSION OF THE
NATIONAL OR STATE DIRECTOR, ONLY THE LOCAL BOARD MAY REOPEN THE CASE;
AND A CERTAIN RELUCTANCE IS TO BE EXPECTED AFTER THE APPEAL BOARD,
ALBEIT ON INCOMPLETE PRESENTATION, HAS REJECTED THE REGISTRANT'S
CLAIM.  MOREOVER, THE LOCAL BOARD HAS DISCRETION TO REFUSE TO REOPEN
THE CASE IF IT "IS OF THE OPINION THAT THE INFORMATION ACCOMPANYING
SUCH REQUEST FAILS TO PRESENT ANY FACTS IN ADDITION TO THOSE CONSIDERED
WHEN THE REGISTRANT WAS CLASSIFIED OR, EVEN IF NEW FACTS ARE PRESENTED,
THE LOCAL BOARD IS OF THE OPINION THAT SUCH FACTS, IF TRUE, WOULD NOT
JUSTIFY A CHANGE IN SUCH REGISTRANT'S CLASSIFICATION ...  ."  32 CFR
SEC. 1625.4.    WE HOLD THAT THE OVER-ALL PROCEDURES SET UP IN THE
STATURE AND REGULATIONS, DESIGNED TO BE "FAIR AND JUST" IN THEIR
OPERATION, 62 STAT. 605, 50 U.S. APP. SEC. 451(C), REQUIRE THAT THE
REGISTRANT RECEIVE A COPY OF THE JUSTICE DEPARTMENT'S RECOMMENDATION
AND BE GIVEN A REASONABLE OPPORTUNITY TO FILE A REPLY THERETO. 
ACCORDINGLY, THE DECISION OF THE COURT OF APPEALS, UPHOLDING
PETITIONER'S CONVICTION FOR REFUSING TO SUBMIT TO INDUCTION, IS
REVERSED. 

FN1  A MUCH MORE EXTENSIVE NARRATION OF PETITIONER'S BACKGROUND IS
GIVEN IN THE HEARING OFFICERS' REPORT.  (R. 11A ET SEQ.)  THE LATTER
DOCUMENT, UNDER APPLICABLE REGULATIONS, 32 CFR (1954 SUPP.) SEC.
1626.25, WAS NOT TRANSMITTED TO THE APPEAL BOARD FOR ITS CONSIDERATION
IN CLASSIFYING PETITIONER. 

FN2  THE COMPLETE TEXT OF THE REPORT IS AS FOLLOWS: 

"REGISTRANT WAS BORN JULY 22, 1931, IN SAN ANTONIO, TEXAS.  HE LEFT
THE EDISON HIGH SCHOOL OF THAT CITY IN JUNE, 1948, AFTER TWO YEARS OF
ATTENDANCE AND TOOK EMPLOYMENT AS A SHEET METAL WORKER WITH A LOCAL
FIRM.  HE MARRIED HIS PRESENT WIFE IN SEPTEMBER, 1948.  IN THE SUMMER
OF 1949 HE CAME TO DETROIT AND WORKED AS A LABORER FOR THE ADAMS LUMBER
COMPANY UNTIL JULY, 1950.  FROM AUGUST, 1950 TO PRESENT HE HAS BEEN
EMPLOYED AS A LABORER AND GENERAL MAINTENANCE MAN AT THE GREAT LAKES
STEEL CORPORATION.  REGISTRANT PREVIOUSLY WAS A CATHOLIC AND HAS FIVE
SISTERS AND A BROTHER ALL OF WHOM ARE CATHOLICS.  HIS PARENTS WERE
CATHOLICS.  HIS MOTHER IS DEAD AND HIS FATHER LIVES IN SAN ANTONIO,
TEXAS.  REGISTRANT'S WIFE BECAME A JEHOVAH'S WITNESS IN 1941 AND
REGISTRANT WAS BAPTIZED A MEMBER IN FEBRUARY, 1950.  IN OCTOBER, 1950,
HE BECAME A 'PIONEER' AND HE PARTICIPATES IN THE USUAL ACTIVITIES OF
HIS SECT, ATTENDING SEVERAL WEEKLY MEETINGS INCLUDING THE THEOCRATIC
MINISTRY SCHOOL.  HE ALSO DOES HOUSE TO HOUSE WORK AND SELLS THE
PUBLICATIONS OF THE SECT.  REGISTRANT BASES HIS CLAIM FOR EXEMPTION
UPON HIS OWN PERSONAL INTERPRETATION OF THE BIBLE WITH THE GUIDANCE OF
THE WATCHTOWER BIBLE AIDS AND RELIES PARTICULARLY ON THE TEN
COMMANDMENTS.  HE BELIEVES IN THE USE OF FORCE IN SELF DEFENSE. 

"THE INVESTIGATION REFLECTS THAT REGISTRANT IS WELL REGARDED IN THE
SEVERAL COMMUNITIES IN WHICH HE HAD LIVED AND THAT HE AND HIS WIFE ARE
SAID TO BE VERY RELIGIOUS.  NEIGHBORS ADVISE THAT THEY HOLD BIBLE
STUDIES IN THEIR APARTMENT AND APPEAR TO DEVOTE CONSIDERABLE TIME TO
RELIGIOUS WORK.  REFERENCES AND CO-RELIGIONISTS STATE THAT HE IS A
DEVOTED MEMBER OF THE SECT AND APPLIES HIMSELF EARNESTLY TO HIS
RELIGIOUS WORK.  EMPLOYMENT RECORDS REVEAL THAT REGISTRANT WAS
REMEMBERED AS A GOOD WORKER AND THAT HIS RECORD IS GOOD AND CONTAINS NO
DEROGATORY INFORMATION. 

"AFTER A PERSONAL APPEARANCE, THE HEARING OFFICER STATED THAT
REGISTRANT APPEARED TO BE A SINCERE JEHOVAH'S WITNESS BUT CONCLUDED
THAT HIS AFFILIATION WITH THAT SECT HAS BEEN TOO RECENT AND TOO CLOSELY
RELATED TO HIS DRAFT STATUS TO WARRANT THE ACCEPTANCE OF HIS
CONSCIENTIOUS OBJECTOR POSITION AS GENUINE.  THE FACT THAT REGISTRANT
BECAME A MEMBER OF THE JEHOVAH'S WITNESS SECT ONE MONTH AFTER HIS
SELECTIVE SERVICE SYSTEM REGISTRATION IN JANUARY, 1950, DESPITE THE
FACT THAT HIS WIFE HAD BEEN A MEMBER FOR MANY YEARS, LENDS WEIGHT TO
THIS CONCLUSION. 

"AFTER CONSIDERATION OF THE ENTIRE FILE AND RECORD, THE DEPARTMENT OF
JUSTICE FINDS THAT THE REGISTRANT'S OBJECTIONS TO COMBATANT AND
NONCOMBATANT SERVICE ARE NOT SUSTAINED.  IT IS, THEREFORE, RECOMMENDED
TO YOUR BOARD THAT REGISTRANT'S CLAIM FOR EXEMPTION FROM BOTH COMBATANT
AND NONCOMBATNAT TRAINING AND SERVICE BE NOT SUSTAINED." 

FN3  THIS SECTION DOES PROVIDE THAT THE DEPARTMENT OF JUSTICE SHALL
MAKE AN "APPROPRIATE INQUIRY," AND HOLD A "HEARING" WITH RESPECT TO THE
CLAIMED CONSCIENTIOUS OBJECTIONS.  IF AFTER SUCH HEARING IT FINDS THE
CLAIMS UNFOUNDED, "IT SHALL RECOMMEND TO THE APPEAL BOARD THAT SUCH
OBJECTIONS BE NOT SUSTAINED."  THE REGULATIONS ARE OF THE SAME TENOR,
32 CFR (1954 SUPP.) SEC. 1626.25. 

FN4  INAPPLICABLE TO THE INSTANT QUESTION ARE CASES DEALING WITH
WHETHER A RECOMMENDATION OF INTERMEDIATE REPORT IS NECESSARY TO BEGIN
WITH, LABOR BOARD V. MACKAY CO., 304 U.S. 333; PUBLIC SERVICE CORP. V.
S.E.C., 129 F.2D 899 (C.A. 3D CIR. 1942), WHETHER THE RECOMMENDATION
CAN BE SUBJECTED TO JUDICIAL REVIEW, CHICAGO & SOUTHERN AIR LINES V.
WATERMAN CORP., 333 U.S. 103, AND WHETHER SATISFACTORY PROCEDURES WERE
EMPLOYED IN FORMULATING THE RECOMMENDATION, WILLIAMS V. NEW YORK, 337
U.S. 241; NORWEGIAN NITROGEN CO. V. UNITED STATES, 288 U.S. 294.  THE
LATTER THREE CASES ARE DISTINGUISHABLE, MOREOVER, BECAUSE THEY DO NOT
INVOLVE INDIVIDUALIZED FACT FINDING AND CLASSIFICATION, BUT LEGISLATIVE
DETERMINATIONS, POLITICAL JUDGMENTS, AND THE EXERCISE OF JUDICIAL
DISCRETION IN THE IMPOSITION OF SENTENCE. 

SEE ALSO MAZZA V. CAVICCHIA, 15 N.J. 498, 105 A.2D 545 (1954). 

FN5  "THE RIGHT TO A HEARING EMBRACES NOT ONLY THE RIGHT TO PRESENT
EVIDENCE BUT ALSO A REASONABLE OPPORTUNITY TO KNOW THE CLAIMS OF THE
OPPOSING PARTY AND TO MEET THEM.  THE RIGHT TO SUBMIT ARGUMENT IMPLIES
THAT OPPORTUNITY; OTHERWISE THE RIGHT MAY BE BUT A BARREN ONE.  THOSE
WHO ARE BROUGHT INTO CONTEST WITH THE GOVERNMENT IN A QUASI-JUDICIAL
PROCEEDING AIMED AT THE CONTROL OF THEIR ACTIVITIES ARE ENTITLED TO BE
FAIRLY ADVISED OF WHAT THE GOVERNMENT PROPOSES AND TO BE HEARD UPON ITS
PROPOSALS BEFORE IT ISSUES ITS FINAL COMMAND." 

FN6  SEE 32 CFR SEC. 1626.12.  "THE PERSON APPEALING MAY ATTACH TO
HIS APPEAL A STATEMENT SPECIFYING THE MATTERS IN WHICH HE BELIEVES THE
LOCAL BOARD ERRED, MAY DIRECT ATTENTION TO ANY INFORMATION IN THE
REGISTRANT'S FILE WHICH HE BELIEVES THE LOCAL BOARD HAS FAILED TO
CONSIDER OR TO GIVE SUFFICIENT WEIGHT, AND MAY SET OUT IN FULL ANY
INFORMATION WHICH WAS OFFERED TO THE LOCAL BOARD AND WHICH THE LOCAL
BOARD FAILED OR REFUSED TO INCLUDE IN THE REGISTRANT'S FILE."  IT IS
TRUE THAT THIS SECTION REQUIRES THAT THE STATEMENT BE MADE AT THE TIME
THE APPEAL IS INITIATED.  AND 32 CFR SEC. 1626.24(B) PROVIDES THAT "THE
APPEAL BOARD SHALL NOT RECEIVE OR CONSIDER ANY INFORMATION WHICH IS NOT
CONTAINED IN THE RECORD RECEIVED FROM THE LOCAL BOARD EXCEPT (1) THE
ADVISORY RECOMMENDATION FROM THE DEPARTMENT OF JUSTICE UNDER SEC.
1626.25, AND (2) GENERAL INFORMATION CONCERNING ECONOMIC, INDUSTRIAL,
AND SOCIAL CONDITIONS."  BUT THE BOARD SCOPE OF REVIEW PROVIDED IN SEC.
1626.12 IS INCONSISTENT WITH ANY IMPLICATION THAT REGISTRANTS IN
CONSCIENTIOUS OBJECTOR CASES ARE REQUIRED TO FILE THEIR STATEMENTS WITH
THE INITIAL APPEAL.  SUCH A REQUIREMENT, IF INDEED THE SECTION IS
VIEWED AS AN ABSOLUTE BAR TO SUPPLEMENTAL AND AMENDATORY STATEMENTS,
MAY BE PROPER IN THE NORMAL CASE.  BUT WHERE THE RECORD IS AUGMENTED ON
APPEAL, THE REGISTRANT CAN EFFECTIVELY POINT OUT ERROR AND FAILURE TO
CONSIDER ONLY AFTER THE DEPARTMENT OF JUSTICE HAS ACTED. 

FN7  SEE LETTER OF GENERAL HERSHEY, FEBRUARY 4, 1955. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

I WOULD AFFIRM.  THE PRESCRIBED PROCEDURE, INCLUDING ESPECIALLY THE
HEARING BEFORE A HEARING OFFICER, PROVIDED ADEQUATE PROTECTION FOR
PETITIONER, AND I FIND NO EXPRESS OR IMPLIED STATUTORY OR
ADMINISTRATIVE REQUIREMENT THAT THE DEPARTMENT OF JUSTICE SEND TO
PETITIONER A COPY OF ITS ADVISORY REPORT TO THE APPEAL BOARD. 

THE REPORT OF THE DEPARTMENT OF JUSTICE IS ADVISORY ONLY.  AS THE
REGISTRANT HAS, UNDER SELECTIVE SERVICE REGULATIONS, 32 CFR SEC.
1606.32(A)(1), A RIGHT TO EXAMINE THE REPORT, AS WELL AS ALL OTHER
INFORMATION IN THE FILE, AND UNDER SEC. 1625(1) AND (2) REOPEN THE
CLASSIFICATION ON A SHOWING OF ERROR, THE "FAIR AND JUST" REQUIREMENT
FOR A HEARING IS SATISFIED.  UNITED STATES V. NUGENT, 346 U.S. 1. 

MR. JUSTICE MINTON, DISSENTING. 

BECAUSE THE REGULATIONS OF THE BOARD DID NOT REQUIRE THE DEPARTMENT
OF JUSTICE TO SEND PETITIONER A COPY OF ITS ADVISORY REPORT, AND SINCE
THE PETITIONER DID NOT REQUEST THAT HE BE ALLOWED TO SEE THE REPORT OR
A SUMMARY THEREOF, THE ACTION OF THE BOARD WAS NOT ARBITRARY AND
CAPRICIOUS.  THE BOARD DID NOT LOSE ITS JURISDICTION OR ACT BEYOND IT.
I WOULD AFFIRM. 
..END :















LEWIS V. UNITED STATES 348 U.S. 419 


NO. 203.  ARGUED FEBRUARY 3, 1955 - DECIDED MARCH 14, 1955 - 94 U.S.
APP. D.C. - , 214 F.2D 853, AFFIRMED. 


THE PROVISIONS OF 26 U.S.C. SEC. 3290 AND RELATED SECTIONS, MAKING IT
A FEDERAL OFFENSE TO ENGAGE IN THE BUSINESS OF ACCEPTING WAGERS WITHOUT
PAYING THE OCCUPATIONAL TAX WAS IMPOSED BY THAT SECTION, ARE
CONSTITUTIONAL, AS APPLIED TO VIOLATIONS OCCURRING IN THE DISTRICT OF
COLUMBIA, WHERE WAGERING IS MADE A CRIME BY FEDERAL LAW.  UNITED STATES
V. KAHRIGER, 345 U.S. 22.  PP. 419-423. 

(A)  THE STATUTE IS A VALID EXERCISE OF THE TAXING POWER AND NOT A
PENALTY IN THE GUISE OF A TAX.  P. 421. 

(B)  AS APPLIED TO PETITIONER IN THE DISTRICT OF COLUMBIA, IT DOES
NOT VIOLATE THE PRIVILEGE AGAINST SELF-INCRIMINATION GUARANTEED BY THE
FIFTH AMENDMENT.  PP. 421-423. 

(C)  SINCE PETITIONER HAD PURCHASED NO TAX STAMP, HE IS NOT IN A
POSITION TO RAISE THE QUESTION WHETHER THE REQUIREMENT OF 26 U.S.C.
SEC. 3293 THAT THE TAXPAYER EXHIBIT A TAX STAMP IN HIS PLACE OF
BUSINESS CONTRAVENES THE FOURTH AMENDMENT'S BAN AGAINST UNREASONABLE
SEARCH AND SEIZURE.  P. 423. 

LEWIS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

AN INFORMATION WAS FILED IN THE MUNICIPAL COURT OF THE DISTRICT OF
COLUMBIA CHARGING THE PETITIONER WITH VIOLATION OF 26 U.S.C. SEC. 3290
IN THAT HE ENGAGED IN THE BUSINESS OF ACCEPTING WAGERS WITHOUT PAYING
THE OCCUPATIONAL TAX IMPOSED BY THAT SECTION.  THE MUNICIPAL COURT
SUSTAINED A MOTION TO DISMISS THE INFORMATION.  THE MUNICIPAL COURT OF
APPEAL FOR THE DISTRICT REVERSED, 100 A.2D 40, AND THE CIRCUIT COURT OF
APPEALS AFFIRMED THE MUNICIPAL COURT OF APPEALS.  94 U.S. APP. D.C. - ,
214 F.2D 853.  WE GRANTED CERTIORARI.  348 U.S. 810. 

THE QUESTIONS PRESENTED IN THIS CASE ARE:  DOES THE ACT, AS APPLIED
TO THE PETITIONER IN THE DISTRICT OF COLUMBIA, CONSTITUTE A VALID
EXERCISE OF THE TAXING POWER OR IS IT A PENALTY UNDER THE GUISE OF A
TAX?  SECONDLY, DOES IT VIOLATE THE FIFTH AMENDMENT'S PROHIBITION AS TO
COMPULSORY SELF-INCRIMINATION?  THIRDLY, DOES IT CONTRAVENE THE FOURTH
AMENDMENT'S BAN AGAINST UNREASONABLE SEARCH AND SEIZURE?  THE FIRST TWO
QUESTIONS WERE CATEGORICALLY ANSWERED IN THE NEGATIVE, AND THE VALIDITY
AND CONSTITUTIONALITY OF THE ACT UPHELD BY US IN UNITED STATES V.
KAHRIGER, 345 U.S. 22; THE THIRD QUESTION IS NOT SUBSTANTIALLY
DIFFERENT FROM THE SECOND AND IS ALSO CONTROLLED BY KAHRIGER.  THE ONLY
MATERIAL FACTUAL DIFFERENCE BETWEEN THAT CASE AND THE INSTANT CASE IS
THAT IN KAHRIGER THE VIOLATION OCCURRED IN A STATE, NAMELY,
PENNSYLVANIA, WHILE IN THE INSTANT CASE THE VIOLATION IS CHARGED TO
HAVE TAKEN PLACE IN THE DISTRICT OF COLUMBIA. 

THE STATUTE, 26 U.S.C. SEC. 3290, PROVIDES: 

"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." 

ANOTHER SECTION, 26 U.S.C. SEC. 3271, READS: 

"PAYMENT OF TAX - (A) CONDITION PRECEDENT TO DOING BUSINESS. 

"NO PERSON SHALL ENGAGE IN OR CARRY ON ANY TRADE OR BUSINESS
MENTIONED IN THIS CHAPTER UNTIL HE HAS PAID A SPECIAL TAX THERFOR IN
THE MANNER PROVIDED IN THIS CHAPTER." 

SUBCHAPTER A, REFERRED TO IN SEC. 3290, PROVIDES IN SEC. 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." 

THESE PROVISIONS MUST BE READ TOGETHER, AND WHEN WE DO, IT SEEMS
CLEAR THAT PAYMENT OF THE SPECIAL $50 TAX IS TO BE MADE PRIOR TO
ENGAGING IN THE BUSINESS OF ACCEPTING WAGERS. 

WE HELD IN KAHRIGER THAT THIS STATUTE WAS A CONSTITUTIONAL EXERCISE
OF THE TAXING POWER AND WAS NOT A PENALTY UNDER THE GUISE OF A TAX. 
345 U.S., AT 24-32.  IT IS ARGUED THAT THAT CASE INVOLVED WAGERING IN A
STATE, WHERE SUCH ACTIVITY IS NOT A VIOLATION OF FEDERAL LAW, THAT THE
INSTANT CASE ARISES IN THE DISTRICT OF COLUMBIA, WHERE WAGERING IS BY
FEDERAL LAW A CRIME, D.C. CODE, 1951, SEC. 22-1501 ET SEQ., AND THAT
THIS STATUTE AS APPLIED TO PETITIONER IN THE DISTRICT OF COLUMBIA IS A
PENALTY IN THE GUISE OF A TAX.  THE SHORT ANSWER TO THIS ARGUMENT IS
THAT THIS COURT HAS LONG HELD THAT THE FEDERAL GOVERNMENT MAY TAX WHAT
IT ALSO FORBIDS.  UNITED STATES V. STAFOFF, 260 U.S. 477. 

SECONDLY, IT IS CONTENDED BY PETITIONER THAT THE ACT IN QUESTION IS
UNCONSTITUTIONAL BECAUSE COMPLIANCE COMPELS SELF-INCRIMINATION IN
CONTRAVENTION OF THE FIFTH AMENDMENT.  THE FIFTH AMENDMENT PROVIDES
THAT ONE CANNOT BE COMPELLED, IN A CRIMINAL CASE, TO BE A WITNESS
AGAINST HIMSELF.  IT IS A SHIELD THAT PREVENTS ONE FROM BEING CONVICTED
OUT OF HIS OWN MOUTH BY ANYTHING SHORT OF VOLUNTARY STATEMENTS. 

PETITIONER MAINTAINS THAT THE TAXES IMPOSED ARE RETROSPECTIVE IN
APPLICATION.  IT IS ARGUED THAT HE MUST BE LIABLE FOR THE TAX UNDER
SUBCHAPTER A IN THE SENSE THAT HE MUST HAVE ALREADY WAGERED BEFORE HE
IS REQUIRED TO TAKE OUT THE OCCUPATIONAL TAX, AND THAT TO REQUIRE HIM
TO DO SO COMPELS ADMISSION THAT HE HAS GAMBLED.  WE DO NOT SO READ THE
STATUTE.  THE ACT DOES NOT MEAN ONE MUST FIRST HAVE MADE A WAGER AS
DEFINED IN SUBCHAPTER A AND THEREFORE INCURRED LIABILITY TO PAY THE TAX
LEVIED THEREIN BEFORE LIABILITY FOR THE OCCUPATIONAL TAX ATTACHES.  THE
ACT IS WHOLLY PROSPECTIVE AND BY ITS TERMS DID NOT BECOME APPLICABLE
UNTIL NOVEMBER 1, 1951, MORE THAN TEN DAYS AFTER ITS ENACTMENT ON
OCTOBER 20, 1951.  SEE COMPILER'S NOTE TO 26 U.S.C. SEC. 3285.  THE
STATUTE SIMPLY DESIGNATES A CLASS THAT IS LIABLE TO PAY THE TEN PERCENT
TAX WHEN A WAGER OR WAGERS ARE MADE.  PAYMENT OF THE $50 TAX HERE UNDER
CONSIDERATION IS A REGISTRATION FEE THAT MUST BE PAID BEFORE ENGAGING
IN THE BUSINESS OF WAGERING. 

WE SAID IN KAHRIGER, SUPRA, AT 32-33:  "UNDER THE REGISTRATION
PROVISIONS OF THE WAGERING TAX, APPELLEE IS NOT COMPELLED TO CONFESS TO
ACTS ALREADY COMMITTED, HE IS MERELY INFORMED BY THE STATUTE THAT IN
ORDER TO ENGAGE IN THE BUSINESS OF WAGERING IN THE FUTURE HE MUST
FULFILL CERTAIN CONDITIONS."  THE CONDITION HERE IMPORTANT WAS THAT
PETITIONER MUST FIRST PAY THE $50 TAX, BUT THAT DID NOT GIVE HIM ANY
LICENSE TO ENGAGE IN AN UNLAWFUL BUSINESS.  LICENSE TAX CASES, 5 WALL. 
462, 471.  IT ONLY WARNED THAT IF HE PROPOSED TO CARRY ON THIS
PARTICULAR BUSINESS HE MUST PAY THE TAX. 

IF PETITIONER DESIRES TO ENGAGE IN AN UNLAWFUL BUSINESS, HE DOES SO
ONLY ON HIS OWN VOLITION.  THE FACT THAT HE MAY ELECT TO PAY THE TAX
AND MAKE THE PRESCRIBED DISCLOSURES REQUIRED BY THE ACT IS A MATTER OF
HIS CHOICE.  THERE IS NOTHING COMPULSORY ABOUT IT, AND CONSEQUENTLY,
THERE IS NOTHING VIOLATIVE OF THE FIFTH AMENDMENT.  IF HE DOES NOT PAY
THE OCCUPATIONAL TAX, PROCEEDS TO ACCEPT WAGERS, AND IS PROSECUTED
THEREFOR, AS IN THIS CASE, HE CANNOT BE COMPELLED TO TESTIFY AND MAY
CLAIM HIS PRIVILEGE.  THE ONLY COMPULSION UNDER THE ACT IS THAT
REQUIRING THE DECISION WHICH WOULD-BE GAMBLERS MUST MAKE AT THE
THRESHOLD.  THEY MAY HAVE TO GIVE UP GAMBLING, BUT THERE IS NO
CONSTITUTIONAL RIGHT TO GAMBLE.  IF THEY ELECT TO WAGER, THOUGH IT BE
UNLAWFUL, THEY MUST PAY THE TAX. 

AND, FINALLY, THE PETITIONER ARGUES THAT TO REQUIRE HIM TO PAY THE
TAX AND EXHIBIT THE STAMP IN HIS PLACE OF BUSINESS, AS REQUIRED BY 26
U.S.C. SEC. 3293 OF THE ACT, IS TO FURNISH PROBABLE CAUSE FOR THE
ISSUANCE OF A SEARCH WARRANT.  THIS IS JUST ANOTHER FACET OF THE FIFTH
AMENDMENT ARGUMENT, BUT THE READY ANSWER IS THAT THE PETITIONER HAS NO
STAMP.  IF HE DOES NOT PURCHASE A STAMP EVEN THOUGH HE WAGERS, WHICH IS
THIS CASE, IT IS DIFFICULT TO SEE HOW SUCH FAILURE WOULD GIVE PROBABLE
CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT.  HIS COMPLAINT IS THAT IF
HE HAD ONE HE MIGHT GET IN TROUBLE.  SINCE PETITIONER IS WITHOUT A
STAMP, HE IS NOT IN A POSITION TO RAISE THE QUESTION AS TO WHAT MIGHT
HAPPEN TO HIM IF HE HAD ONE. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

UNITED STATES V. KAHRIGER, 345 U.S. 22, PUT A MOST RESTRICTIVE
INTERPRETATION ON THE FIFTH AMENDMENT'S PROVISION AGAINST COMPELLING
PERSONS TO CONFESS FACTS WHICH WILL HELP GOVERNMENT TAKE AWAY THEIR
LIBERTY.  BUT THIS CASE REDUCES THE FIFTH AMENDMENT'S PROTECTION STILL
MORE.  KAHRIGER HAD TO CONFESS ONLY TO STATE LAW VIOLATIONS TO SAVE
HIMSELF FROM GOING TO JAIL FOR VIOLATING THE FEDERAL REGISTRATION LAW. 
THIS WAS ONE OF THE ARGUMENTS RELIED ON BY THE GOVERNMENT TO PERSUADE
THIS COURT TO SUSTAIN THE FEDERAL LAW AS APPLIED TO KAHRIGER.  (FN1)
BUT THE PETITIONER HERE, IN ORDER TO BE PERMITTED TO PAY THE $50 TAX,
MUST FILE A WRITTEN CONFESSION WITH THE DISTRICT OF COLUMBIA INTERNAL
REVENUE COLLECTOR REVEALING THAT, IN VIOLATION OF FEDERAL LAW, HE IS AT
THE MOMENT HE REGISTERS "ENGAGED IN THE BUSINESS OF ACCEPTING WAGERS." 
(FN2)  HE MUST ALSO TELL WHERE HE CARRIES ON THE ILLEGAL BUSINESS, THE
NAMES AND ADDRESSES OF THOSE WHO RECEIVE WAGERS FOR HIM AND OF THOSE
FOR WHOM HE RECEIVES WAGERS.  (FN3)  FOR ENGAGING IN THIS WAGERING
BUSINESS, WHICH REGISTRATION WOULD COMPEL PETITIONER TO CONFESS, HE
COULD BE CONVICTED OF FELONY, FINED $1,000, IMPRISONED THREE YEARS, OR
BOTH.  (FN4)  AND FOR CONSPIRING WITH HIS EMPLOYERS OR EMPLOYEES TO
PROMOTE A LOTTERY EVEN IN THE FUTURE, WHICH COMPULSORY REGISTRATION IS
DESIGNED TO REVEAL, PETITIONER COULD BE PUNISHED BY A FINE OF $10,000,
IMPRISONMENT FOR FIVE YEARS, OR BOTH.  (FN5) THUS IN ORDER TO PAY THE
TAX, PETITIONER WOULD BE COMPELLED TO SUPPLY EVIDENCE USEFUL AND MAYBE
SUFFICIENT TO CONVICT HIM OF FELONIES FOR WHICH HE COULD BE
INCARCERATED FOR YEARS.  IF THIS WOULD NOT VIOLATE THE FIFTH
AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION, IT IS HARD TO THINK
OF ANYTHING THAT WOULD.  CF. BLAU V. UNITED STATES, 340 U.S. 159, AND
CASES CITED. 

AND YET THE COURT HOLDS PETITIONER CAN BE SENT TO JAIL FOR REFUSAL TO
MAKE A PUBLIC REGISTRATION OF HIS GUILT OF CRIMINAL CONDUCT.  THIS
RESULT SEEMS TO BE LARGELY DEPENDENT ON THE STATEMENT THAT PETITIONER
HAS "NO CONSTITUTIONAL RIGHT TO GAMBLE."  OF COURSE NOT.  BUT IF WE
REMAIN FAITHFUL TO THE LETTER AND SPIRIT OF THE BILL OF RIGHTS,
GAMBLERS, LIKE OTHERS, HAVE A RIGHT TO INVOKE ITS SAFEGUARDS.  IT
SHOULD NOT BE FORGOTTEN THAT BREACHES OPENED TO GET LAWLESS GAMBLERS
REMAIN TO JEOPARDIZE THE LIBERTY OF THE LAW-ABIDING. 

FN1  THE GOVERNMENT THERE ARGUED:  "WAGERING IS DOUBTLESS UNLAWFUL IN
MANY STATES (PERHAPS IN ALL BUT NEVADA), BUT IT IS NOT FORBIDDEN BY ANY
FEDERAL LAW. 

"THUS THE REGISTRATION STATEMENT IN WHICH THE TAXPAYER IS REQUIRED TO
SET FORTH HIS NAME, ADDRESS AND PLACES OF BUSINESS, AND THE NAMES AND
ADDRESSES OF HIS AGENTS OR PRINCIPALS DOES NOT CALL FOR A DISCLOSURE OF
INFORMATION WHICH WILL REVEAL A VIOLATION OF FEDERAL LAW."  REPLY BRIEF
FOR THE UNITED STATES, P. 3, UNITED STATES V. KAHRIGER, 345 U.S. 22. 

FN2  SEE UNITED STATES V. KAHRIGER, 210 F.2D 565, 570.  PARAGRAPH 4
OF INSTRUCTIONS ON THE TAX RETURN WHICH PETITIONER WOULD HAVE BEEN
COMPELLED TO SIGN IN ORDER TO PAY THE $50 TAX PROVIDES: "THE
INFORMATION CALLED FOR ON THE RETURN MUST BE COMPLETELY FURNISHED.  IF
NOT SO FURNISHED, THE SPECIAL TAX STAMP WILL NOT BE ISSUED." 

FN3  THAT PETITIONER WOULD HAVE BEEN COMPELLED TO MAKE SUCH
CONFESSIONS IS SHOWN BY A COPY OF THE "SPECIAL TAX RETURN AND
APPLICATION FOR REGISTRY - WAGERING" IN EFFECT AT THE TIME OF
PETITIONER'S FAILURE TO REGISTER.  IT READS IN PART:  "5.  ARE YOU
ENGAGED IN THE BUSINESS OF ACCEPTING WAGERS ON YOUR OWN ACCOUNT?  ...
IF YES, GIVE (A) NAME AND ADDRESS WHERE EACH SUCH BUSINESS IS CONDUCTED
...  .  (B) NUMBER OF EMPLOYEES AND/OR AGENTS ENGAGED IN RECEIVING
WAGERS ON YOUR BEHALF  ...  .  (C) TRUE NAME, CURRENT ADDRESS, AND
SPECIAL TAX STAMP NUMBER OF EACH SUCH PERSON  ...  .  6.  DO YOU
RECEIVE WAGERS FOR OR ON BEHALF OF SOME OTHER PERSON OR PERSONS?  ...
.  IF YES, GIVE TRUE NAME AND ADDRESS OF EACH SUCH PERSON  ...  ." 

FN4  THE D.C. CODE, 1951, SEC. 22-1501 MAKES PROMOTION OF LOTTERIES A
CRIME.  THE DEFINITION OF LOTTERIES HERE INCLUDES THE DEFINITION OF
WAGERS IN THE REGISTRATION LAW.  65 STAT. 529, 26 U.S.C. SEC. 3285. 

FN5  18 U.S.C. SEC. 371. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

IN VIEW OF THE RECENTNESS OF THE DECISION IN UNITED STATES V.
KAHRIGER, 345 U.S. 22, AND MY CONTINUING DISAGREEMENT WITH THE
CONSTITUTIONAL VIEWS WHICH IT EXPRESSED, I CANNOT ACQUIESCE IN THIS
DECISION.  INDEED, THIS CASE ONLY EMPHASIZES THE DIFFICULTIES WHICH I
FOUND IN KAHRIGER, FOR HERE WE ARE CONCERNED WITH A SPURIOUS USE OF THE
TAXING POWER AS A MEANS OF FACILITATING PROSECUTION OF FEDERAL
OFFENSES. 
..END :















UNITED STATES V. CALIFORNIA EASTERN LINE, INC. 348 U.S. 351 


NO. 263.  ARGUED FEBRUARY 10, 1955 - DECIDED MARCH 7, 1955 - 93 U.S.
APP. D.C. 289, 211 F.2D 635, REVERSED. 


UNDER THE RENEGOTIATION ACT OF 1942 AS AMENDED, THE MARITIME
COMMISSION DETERMINED THAT A STEAMSHIP COMPANY SHOULD REPAY $164,000 AS
"EXCESSIVE PROFITS."  THE COMPANY TOOK THE MATTER TO THE TAX COURT
UNDER SEC. 403(E)(1) OF THE ACT, WHICH AUTHORIZES THAT COURT "TO
FINALLY DETERMINE THE AMOUNT, IF ANY, OF EXCESSIVE PROFITS" AND
PROVIDES THAT "SUCH DETERMINATION SHALL NOT BE REVIEWED OR REDETERMINED
BY ANY COURT OR AGENCY."  THE TAX COURT, WITHOUT MAKING ANY FINDING OR
DETERMINATION AS TO PROFITS, HELD THAT THE ONLY CONTRACT IN THE CASE
WAS ONE BETWEEN THE COMPANY AND A FOREIGN GOVERNMENT, AND THAT THE
COMMISSION HAD MADE NO RENEGOTIABLE CONTRACT WITHIN SEC. 403(E)(1) OF
THE ACT.  HELD:  THE DECISION OF THE TAX COURT WAS REVIEWABLE BY THE
COURT OF APPEALS UNDER 26 U.S.C. SEC. 1141.  PP. 352-355. 

(A)  THAT 26 U.S.C. SEC. 1141 WAS ORIGINALLY ENACTED PRIMARILY TO
AUTHORIZE REVIEW OF DECISIONS ON REVENUE MATTERS DOES NOT RENDER IT
INAPPLICABLE TO DECISIONS ON OTHER JUSTICIABLE MATTERS ENTRUSTED TO THE
TAX COURT BY CONGRESS.  PP.  353-354. 

(B)  MACAULEY V. WATERMAN S.S. CO., 327 U.S. 540, DISTINGUISHED.  PP.
354-355. 

(C)  THE DECISION OF THE TAX COURT IN THIS CASE IS NOT THE KIND OF
DETERMINATION THAT SEC. 403(E)(1) OF THE RENEGOTIATION ACT MAKES FINAL,
AND IT IS THEREFORE SUBJECT TO THE NORMAL TYPE OF REVIEW AUTHORIZED BY
26 U.S.C. SEC. 1141.  P. 355. 

UNITED STATES ET AL. V. CALIFORNIA EASTERN LINE, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RENEGOTIATION ACT OF 1942 AS AMENDED SETS UP DEPARTMENTAL AND TAX
COURT PROCEDURES TO SAVE THE UNITED STATES FROM THE BURDEN OF
"EXCESSIVE PROFIT" MADE BY PRIVATE CONTRACTORS UNDER WAR CONTRACTS WITH
GOVERNMENT "DEPARTMENTS."  (FN1)  THE QUESTION IN THIS CASE IS WHETHER
AN ORDER ENTERED BY THE TAX COURT UNDER THAT ACT IS REVIEWABLE BY THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 

IN 1941, THE MARITIME COMMISSION, DEFINED AS A "DEPARTMENT" IN THE
ACT, WAS CHARGED WITH RESPONSIBILITY FOR AIDING THE BRITISH GOVERNMENT
IN THE TRANSPORT OF WAR EQUIPMENT AND SUPPLIES FOR USE IN WORLD WAR II.
RESPONDENT, CALIFORNIA EASTERN LINE, INC., AMONG OTHERS, WAS ASKED BY
THE COMMISSION TO CARRY SUPPLIES TO THE RED SEA AREA FOR THE AFRICAN
CAMPAIGN.  AFTER EXTENSIVE NEGOTIATIONS RESPONDENT AGREED WITH THE
COMMISSION ON DETAILED CONTRACTUAL TERMS FOR THE CARRIAGE.  AND IT WAS
AGREED THAT RESPONDENT WOULD BE PAID BY THE COMMISSION OUT OF FUNDS
APPROPRIATED BY CONGRESS UNDER THE SO-CALLED LEND-LEASE ACT.  (FN2)  IT
WAS ALSO UNDERSTOOD THAT A WRITTEN CONTRACT EMBODYING ONLY THE TERMS
PREVIOUSLY AGREED ON WOULD BE EXECUTED BETWEEN THE RESPONDENT AND THE
BRITISH MINISTRY OF TRANSPORT.  THE CHARTER WAS EXECUTED AFTER
RESPONDENT'S BOAT HAD ALREADY SAILED WITH ITS WAR CARGO.  IN ACCORDANCE
WITH ITS AGREEMENT, THE COMMISSION PAID THE RESPONDENT ABOUT $351,000
FOR THE CARRIAGE.  LATER THE COMMISSION CHAIRMAN, AFTER CONFORMING WITH
REQUIRED PROCEDURE, DETERMINED THAT RESPONDENT SHOULD REPAY $164,000 AS
"EXCESSIVE PROFITS."  RESPONDENT TOOK THE MATTER TO THE TAX COURT UNDER
SEC. 403(E)(1) OF THE ACT WHICH AUTHORIZES THAT COURT "TO FINALLY
DETERMINE THE AMOUNT, IF ANY, OF EXCESSIVE PROFITS" AND PROVIDES THAT
"SUCH DETERMINATION SHALL NOT BE REVIEWED OR REDETERMINED BY ANY COURT
OR AGENCY."  BUT THAT COURT MADE NO FINDING OR DETERMINATION AT ALL
ABOUT PROFITS.  IT DISPOSED OF THE WHOLE CASE BY FINDING AS A FACT AND
HOLDING AS A MATTER OF LAW THAT THE ONLY CONTRACT WAS IN THE WRITTEN
CHARTER WITH THE BRITISH MINISTRY IN WHICH THE COMMISSION WAS NOT NAMED
AS A PARTY AND THAT CONSEQUENTLY THE COMMISSION HAD MADE NO
RENEGOTIABLE CONTRACT WITHIN SEC. 403(E)(1) OF THE RENEGOTIATION ACT. 
17 T.C. 1325. 

THE UNITED STATES SOUGHT REVIEW IN THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT UNDER THE BROAD GRANT OF JURISDICTION IN
26 U.S.C. SEC. 1141 WHICH VESTS COURTS OF APPEALS WITH "EXCLUSIVE
JURISDICTION TO REVIEW THE DECISIONS OF THE TAX COURT  ... ."  (FN3)
THE COURT OF APPEALS HELD THAT SEC. 1141 DOES AUTHORIZE REVIEW OF TAX
COURT RENEGOTIATION ORDERS WITH THE EXCEPTION OF DETERMINATIONS AS TO
PROFITS WHICH SEC. 403(E)(1) OF THE RENEGOTIATION ACT STATES SHALL NOT
BE REVIEWED BY ANY COURT OR AGENCY.  VIEWING THE ISSUE DECIDED BY THE
TAX COURT AS COMING WITHIN THE NONREVIEWABLE CATEGORY, THE COURT OF
APPEALS DISMISSED.  93 U.S. APP. D.C. 289, 211 F.2D 635.  THE NINTH
CIRCUIT HAS CONSTRUED SEC. 1141 DIFFERENTLY, HOWEVER, HOLDING THAT IT
GIVES COURTS OF APPEALS NO POWER WHATEVER TO REVIEW TAX COURT
RENEGOTIATION ORDERS.  FRENCH V. WAR CONTRACTS PRICE ADJUSTMENT BOARD,
182 F.2D 560.  NEVER HAVING PASSED ON THIS JURISDICTIONAL QUESTION, WE
GRANTED CERTIORARI TO DECIDE IT.  348 U.S. 810. 

THE LANGUAGE OF SEC. 1141 IS BROAD ENOUGH TO JUSTIFY REVIEW OF TAX
COURT RENEGOTIATION ORDERS.  AND WE CANNOT SAY THAT BECAUSE THE SECTION
WAS ORIGINALLY PASSED PRIMARILY TO AUTHORIZE REVIEW OF DECISIONS ON
REVENUE MATTERS IT SHOULD BE HELD INAPPLICABLE TO DECISIONS ON OTHER
JUSTICIABLE MATTERS ENTRUSTED TO THE TAX COURT BY CONGRESS.  AS LONG
AGO AS 1946 THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
INTERPRETED SEC. 1141 AS AUTHORIZING REVIEW OF RENEGOTIATION ORDERS. 
(FN4)  IT HAS FOLLOWED THAT INTERPRETATION IN A NUMBER OF LATER CASES,
INCLUDING THIS ONE.  (FN5)  ALL OF THESE CASES, HOWEVER, HAVE
RECOGNIZED THAT THE SCOPE OF SEC. 1141 REVIEW OVER RENEGOTIATION ORDERS
IS NARROWED BY THAT PART OF THE RENEGOTIATION ACT THAT MAKES
NONREVIEWABLE TAX COURT DETERMINATIONS OF AMOUNTS OF EXCESS PROFITS, IF
ANY.  THIS RECONCILIATION OF SEC. 1141 WITH THE RENEGOTIATION ACT HAS A
PERMISSIBLE BASIS, AND ACCORDINGLY WE SEE NO REASON TO UPSET THE REVIEW
PRACTICE THAT HAS GROWN UP UNDER IT.  UNDER THIS PRACTICE, THE
PARTICULAR ORDER HERE IS REVIEWABLE UNDER SEC. 1141 UNLESS IT IS A
DETERMINATION OF "THE AMOUNT, IF ANY, OF EXCESSIVE PROFITS" WITHIN THE
MEANING OF SEC. 403(E)(1) OF THE ACT.  THE COURT OF APPEALS, RELYING ON
MACAULEY V. WATERMAN S.S. CO., 327 U.S. 540, HELD THAT IT WAS.  ON THIS
POINT WE DISAGREE. 

IN MAKING DETERMINATIONS AS TO EXCESS PROFITS THE TAX COURT MUST
DECIDE AT LEAST TWO SEPARATE BUT INTERRELATED QUESTIONS:  (1) WHETHER A
RENEGOTIABLE CONTRACT IS INVOLVED AND (2) THE AMOUNT IF ANY OF
EXCESSIVE PROFITS.  WE HELD IN THE WATERMAN CASE THAT THE TAX COURT HAS
PRIMARY, EXCLUSIVE JURISDICTION TO DECIDE WHETHER A CONTRACT IS
RENEGOTIABLE.  THAT RESULT WAS REACHED BECAUSE THE ACT GIVES THE TAX
COURT EXCLUSIVE JURISDICTION TO DETERMINE THE AMOUNT OF PROFITS AND THE
EXISTENCE OF A RENEGOTIABLE CONTRACT IS ESSENTIAL TO SUCH A
DETERMINATION.  IN WATERMAN, HOWEVER, WE DID NOT DECIDE ANY QUESTION
CONCERNING THE REVIEWABILITY OF TAX COURT ORDERS ENTERED UNDER THE
RENEGOTIATION ACT. 

THE LANGUAGE AND HISTORY OF THE RENEGOTIATION ACT MAKE IT PRETTY
CLEAR THAT THE TAX COURT WAS SELECTED TO HANDLE EXCESS PROFITS CASES
BECAUSE OF THAT COURT'S SPECIAL FAMILIARITY WITH ALL KINDS OF BUSINESS
AND ACCOUNTING PRACTICES IN REGARD TO PROFITS, LOSSES, ETC.  THUS IT IS
EASY TO UNDERSTAND WHY CONGRESS IN SEC. 403(E)(1) SPELLED OUT WITH
METICULOUS CLARITY THAT TAX COURT DETERMINATIONS OF THE AMOUNT OF
EXCESSIVE PROFITS, IF ANY, SHOULD BE FINAL AND NONREVIEWABLE.  WE AGREE
THAT A SEC. 1141 COURT OF APPEALS REVIEW SHOULD NOT UPSET SUCH
DETERMINATIONS.  BUT WE DO NOT AGREE THAT THE TAX COURT'S DETERMINATION
HERE IS IN THAT CATEGORY.  THE QUESTION OF THE AMOUNT OF PROFITS WAS
NOT EVEN REACHED BY THE TAX COURT.  IT SIMPLY HELD, RELYING LARGELY ON
COMMON LAW PRINCIPLES OF CONTRACT LAW, THAT THERE WAS NO GOVERNMENT
CONTRACT TO RENEGOTIATE.  THE EXISTENCE OR NONEXISTENCE OF PROFITS WAS
WHOLLY IRRELEVANT TO THE HOLDING.  CONSEQUENTLY THIS IS NOT THE KIND OF
DETERMINATION THAT SEC. 403(E)(1) MAKES FINAL AND THE TAX COURT'S
DECISION IN THIS CASE IS THEREFORE SUBJECT TO THE NORMAL TYPE OF REVIEW
AUTHORIZED BY SEC. 1141.  REVERSED. 

FN1  56 STAT. 245, AS AMENDED, 50 U.S.C. APP. SEC. 1191. 

FN2  55 STAT. 31, 22 U.S.C. SECS. 411-413. 

FN3  SEC. 1141 OF THE INTERNAL REVENUE CODE OF 1939.  SIMILAR
PROVISIONS NOW APPEAR IN SEC.  7482 OF THE INTERNAL REVENUE CODE OF
1954.  SECTION 1141 CONTAINS EXCEPTIONS TO ITS GENERAL GRANT OF
JURISDICTION TO COURTS OF APPEALS, BUT THEY ARE NOT RELEVANT HERE. 

FN4  U.S. ELECTRICAL MOTORS, INC. V. JONES, 80 U.S. APP. D.C. 329,
153 F.2D 134. 

FN5  PSATY & FUHRMAN, INC. V. STIMSON, 87 U.S. APP. D.C. 47, 182 F.2D
985; LOWELL WOOL BY-PRODUCTS CO. V. WAR CONTRACTS PRICE ADJUSTMENT
BOARD, 89 U.S. APP. D.C. 281, 192 F.2D 405; KNU-VISE, INC. V. WAR
CONTRACTS PRICE ADJUSTMENT BOARD, 90 U.S. APP. D.C. 218, 195 F.2D 198. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :



NATIONAL CITY BANK OF NEW YORK V. REPUBLIC OF CHINA 348 U.S. 356 


NO. 30.  ARGUED NOVEMBER 9, 1954 - DECIDED MARCH 7, 1955 - 208 F.2D 627,
REVERSED AND REMANDED. 


1.  THE REPUBLIC OF CHINA SUED AN AMERICAN BANK IN A FEDERAL DISTRICT
COURT TO RECOVER $200,000 DEPOSITED IN THE BANK BY A GOVERNMENTAL
AGENCY OF THE REPUBLIC.  THE BANK INTERPOSED COUNTERCLAIMS SEEKING AN
AFFIRMATIVE JUDGMENT FOR $1,634,432 ON DEFAULTED TREASURY NOTES OF THE
REPUBLIC.  THE REPUBLIC PLEADED SOVEREIGN IMMUNITY.  HELD:  THE
COUNTERCLAIMS SHOULD NOT HAVE BEEN DISMISSED.  PP. 357-366. 

(A)  HAVING BEEN RECOGNIZED AS A SOVEREIGN BY THE EXECUTIVE, THE
REPUBLIC OF CHINA AND ITS GOVERNMENTAL AGENCIES ENJOY A FOREIGN
SOVEREIGN'S IMMUNITIES TO THE SAME EXTENT AS ANY OTHER COUNTRY
RECOGNIZED BY THE UNITED STATES.  P. 358. 

(B)  THIS CASE DOES NOT INVOLVE AN ATTEMPT TO BRING A RECOGNIZED
FOREIGN GOVERNMENT INTO COURT AS A DEFENDANT.  A FOREIGN GOVERNMENT IS
INVOKING OUR LAW BUT RESISTING A CLAIM AGAINST IT WHICH FAIRLY WOULD
CURTAIL ITS RECOVERY.  PP. 361-362. 

(C)  THE CONTENTION THAT THE COUNTERCLAIM HERE INVOLVED IS NOT BASED
ON THE SUBJECT MATTER OF THE REPUBLIC'S SUIT DOES NOT REQUIRE A
DIFFERENT RESULT.  PP. 364-365. 

2.  THAT THE BANK, ON CERTIORARI, DROPPED ITS DEMAND FOR AFFIRMATIVE
RELIEF DID NOT REDUCE THE COUNTERCLAIM TO A MERE DEFENSE OR DEPRIVE
THIS COURT OF JURISDICTION.  P. 358, N. 2. 

NATIONAL CITY BANK OF NEW YORK V. REPUBLIC OF CHINA ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE SHANGHAI-NANKING RAILWAY ADMINISTRATION, AN OFFICIAL AGENCY OF
RESPONDENT REPUBLIC OF CHINA, ESTABLISHED A $200,000 DEPOSIT ACCOUNT IN
1948 WITH THE NEW YORK HEAD OFFICE OF PETITIONER NATIONAL CITY BANK OF
NEW YORK.  SUBSEQUENTLY, RESPONDENT SOUGHT TO WITHDRAW THE FUNDS, BUT
PETITIONER REFUSED TO PAY, AND RESPONDENT BROUGHT SUIT IN FEDERAL
DISTRICT COURT UNDER 48 STAT. 184, AS AMENDED, 12 U.S.C. SEC. 632. 

IN ADDITION TO VARIOUS DEFENSES, PETITIONER INTERPOSED TWO
COUNTERCLAIMS SEEKING AN AFFIRMATIVE JUDGMENT FOR $1,634,432 ON
DEFAULTED TREASURY NOTES OF RESPONDENT OWNED BY PETITIONER.  (FN1)
AFTER A PLEA OF SOVEREIGN IMMUNITY, THE DISTRICT COURT DISMISSED THE
COUNTERCLAIMS, 108 F. SUPP. 766, AND ENTERED JUDGMENT ON THEM PURSUANT
TO RULE 54(B), FEDERAL RULES OF CIVIL PROCEDURE.  PETITIONER APPEALED,
AND WHILE THE APPEAL WAS PENDING SOUGHT LEAVE FROM THE DISTRICT COURT
TO AMEND THE COUNTERCLAIMS BY DENOMINATING THEM SETOFFS AND INCLUDING
ADDITIONAL DATA.  THE DISTRICT COURT DENIED LEAVE.  14 F.R.D. 186.  THE
COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED THE DISMISSAL AND THE
DENIAL ON THE GROUND THAT THE COUNTERCLAIMS WERE NOT BASED ON THE
SUBJECT MATTER OF RESPONDENT'S SUIT (WHETHER THEY BE TREATED AS
REQUESTS FOR AFFIRMATIVE RELIEF OR AS SETOFFS) AND, THEREFORE, IT WOULD
BE AN INVASION OF RESPONDENT'S SOVEREIGN IMMUNITY FOR OUR COURTS TO
PERMIT THEM TO BE PURSUED.  208 F.2D 627.  BECAUSE OF THE IMPORTANCE OF
THE QUESTION AND ITS FIRST APPEARANCE IN THIS COURT, WE GRANTED
CERTIORARI.  (FN2)  347 U.S. 951. 

THE STATUS OF THE REPUBLIC OF CHINA IN OUR COURTS IS A MATTER FOR
DETERMINATION BY THE EXECUTIVE AND IS OUTSIDE THE COMPETENCE OF THIS
COURT.  ACCORDINGLY, WE START WITH THE FACT THAT THE REPUBLIC AND ITS
GOVERNMENTAL AGENCIES ENJOY A FOREIGN SOVEREIGN'S IMMUNITIES TO THE
SAME EXTENT AS ANY OTHER COUNTRY DULY RECOGNIZED BY THE UNITED STATES. 
SEE GUARANTY TRUST CO. V. UNITED STATES, 304 U.S. 126, 137-138. 

THE FREEDOM OF A FOREIGN SOVEREIGN FROM BEING HALED INTO COURT AS A
DEFENDANT HAS IMPRESSIVE TITLE-DEEDS.  VERY EARLY IN OUR HISTORY THIS
IMMUNITY WAS RECOGNIZED, DE MOITEZ V. THE SOUTH CAROLINA, BEE 422, 17
FED. CAS. 574, NO. 9,697 (ADMIRALTY COURT OF PA., 1781, FRANCIS
HOPKINSON, J.), AND IT HAS SINCE BECOME PART OF THE FABRIC OF OUR LAW. 
IT HAS BECOME SUCH SOLELY THROUGH ADJUDICATIONS OF THIS COURT.  UNLIKE
THE SPECIAL POSITION ACCORDED OUR STATES AS PARTY DEFENDANTS BY THE
ELEVENTH AMENDMENT, THE PRIVILEGED POSITION OF A FOREIGN STATE IS NOT
AN EXPLICIT COMMAND OF THE CONSTITUTION.  IT RESTS ON CONSIDERATIONS OF
POLICY GIVEN LEGAL SANCTION BY THIS COURT.  TO BE SURE, THE
NONSUABILITY OF THE UNITED STATES WITHOUT ITS CONSENT IS LIKEWISE
DERIVED FROM CONSIDERATIONS OF POLICY.  BUT THESE ARE OF A DIFFERENT
ORDER FROM THOSE THAT GIVE A FOREIGN NATION SUCH IMMUNITY.  IT IS IDLE
TO REPEAT OR REHEARSE THE DIFFERENT CONSIDERATIONS SET FORTH IN MR.
CHIEF JUSTICE MARSHALL'S CLASSIC OPINION IN THE SCHOONER EXCHANGE V.
M'FADDON, 7 CRANCH, 116. 

BUT EVEN THE IMMUNITY ENJOYED BY THE UNITED STATES AS TERRITORIAL
SOVEREIGN IS A LEGAL DOCTRINE WHICH HAS NOT BEEN FAVORED BY THE TEST OF
TIME.  IT HAS INCREASINGLY BEEN FOUND TO BE IN CONFLICT WITH THE
GROWING SUBJECTION OF GOVERNMENTAL ACTION TO THE MORAL JUDGMENT.  A
REFLECTION OF THIS STEADY SHIFT IN ATTITUDE TOWARD THE AMERICAN
SOVEREIGN'S IMMUNITY IS FOUND IN SUCH OBSERVATIONS IN UNANIMOUS
OPINIONS OF THIS COURT AS "PUBLIC OPINION AS TO THE PECULIAR RIGHTS AND
PREFERENCES DUE TO THE SOVEREIGN HAS CHANGED," DAVIS V. PRINGLE, 268
U.S. 315, 318; "THERE IS NO DOUBT AN INTERMITTENT TENDENCY ON THE PART
OF GOVERNMENTS TO BE A LITTLE LESS GRASPING THAN THEY HAVE BEEN IN THE
PAST ...  ,"  WHITE V. MECHANICS SECURITIES CORP., 269 U.S. 283, 301; "
...  THE PRESENT CLIMATE OF OPINION  ...  HAS BROUGHT GOVERNMENTAL
IMMUNITY FROM SUIT INTO DISFAVOR  ...  ," KEIFER & KEIFER V.
RECONSTRUCTION FINANCE CORP., 306 U.S. 381, 391.  THIS CHILLY FEELING
AGAINST SOVEREIGN IMMUNITY BEGAN TO REFLECT ITSELF IN FEDERAL
LEGISLATION IN 1797.  (FN3)  AT THAT EARLY DAY CONGRESS DECIDED THAT
WHEN THE UNITED STATES SUES AN INDIVIDUAL, THE INDIVIDUAL CAN SET OFF
ALL DEBTS PROPERLY DUE HIM FROM THE SOVEREIGN.  AND BECAUSE OF THE
OBJECTIONS TO AD HOC LEGISLATIVE ALLOWANCE OF PRIVATE CLAIMS, CONGRESS
A HUNDRED YEARS AGO CREATED THE COURT OF CLAIMS, (FN4) WHERE THE UNITED
STATES, LIKE ANY OTHER OBLIGOR, MAY AFFIRMATIVELY BE HELD TO ITS
UNDERTAKINGS.  THIS AMENABILITY TO SUIT HAS BECOME A COMMONPLACE IN
REGARD TO THE VARIOUS AGENCIES WHICH CARRY OUT "THE ENLARGED SCOPE OF
GOVERNMENT IN ECONOMIC AFFAIRS," KEIFER & KEIFER V. RECONSTRUCTION
FINANCE CORP., SUPRA, AT 390.  THE SUBSTANTIVE SWEEP OF AMENABILITY TO
JUDICIAL PROCESS HAS LIKEWISE GROWN APACE.  (FN5) 

THE OUTLOOK AND FEELING THUS REFLECTED ARE NOT MERELY RELEVANT TO OUR
PROBLEM.  THEY ARE IMPORTANT.  THE CLAIMS OF DOMINANT OPINION ROOTED IN
SENTIMENTS OF JUSTICE AND PUBLIC MORALITY ARE AMONG THE MOST POWERFUL
SHAPING-FORCES IN LAWMAKING BY COURTS.  LEGISLATION AND ADJUDICATION
ARE INTERACTING INFLUENCES IN THE DEVELOPMENT OF LAW.  A STEADY
LEGISLATIVE TREND, PRESUMABLY MANIFESTING A STRONG SOCIAL POLICY,
PROPERLY MAKES DEMANDS ON THE JUDICIAL PROCESS.  SEE JAMES M. LANDIS,
STATUTES AND THE SOURCES OF LAW, IN HARVARD LEGAL ESSAYS (1934), P. 213
ET SEQ.; HARLAN F. STONE, THE COMMON LAW IN THE UNITED STATES, 50 HARV.
L. REV.  4, 13-16. 

MORE IMMEDIATELY TOUCHING THE EVOLUTION OF LEGAL DOCTRINES REGARDING
A FOREIGN SOVEREIGN'S IMMUNITY IS THE RESTRICTIVE POLICY THAT OUR STATE
DEPARTMENT HAS TAKEN TOWARD THE CLAIM OF SUCH IMMUNITY.  AS THE
RESPONSIBLE AGENCY FOR THE CONDUCT OF FOREIGN AFFAIRS, THE STATE
DEPARTMENT IS THE NORMAL MEANS OF SUGGESTING TO THE COURTS THAT A
SOVEREIGN BE GRANTED IMMUNITY FROM A PARTICULAR SUIT.  EX PARTE
REPUBLIC OF PERU, 318 U.S. 578, 581.  ITS FAILURE OR REFUSAL TO SUGGEST
SUCH IMMUNITY HAS BEEN ACCORDED SIGNIFICANT WEIGHT BY THIS COURT.  SEE
COMPANIA ESPANOLA DE NAVIGACION MARITIMA, S.A. V. THE NAVEMAR, 303 U.S.
68; REPUBLIC OF MEXICO V. HOFFMAN, 324 U.S. 30.  AND THIS FOR THE
REASON THAT A MAJOR CONSIDERATION FOR THE RULE ENUNCIATED IN THE
SCHOONER EXCHANGE IS THE EMBARRASSING CONSEQUENCES WHICH JUDICIAL
REJECTION OF A CLAIM OF SOVEREIGN IMMUNITY MAY HAVE ON DIPLOMATIC
RELATIONS.  RECENTLY THE STATE DEPARTMENT HAS PRONOUNCED BROADLY
AGAINST RECOGNIZING SOVEREIGN IMMUNITY FOR THE COMMERCIAL OPERATIONS OF
A FOREIGN GOVERNMENT, 26 DEPT. STATE BULL.  984 (1952), DESPITE THE
FACT THAT THIS COURT THIRTY YEARS EARLIER REJECTED THE WEIGHTY OPINION
OF JUDGE MACK IN THE PESARO, 277 F. 473 (SEE, ALSO, HIS OPINION IN THE
GLORIA, 286 F. 188), FOR DIFFERENTIATING BETWEEN COMMERCIAL AND WAR
VESSELS OF GOVERNMENTS.  BERIZZI BROS. CO. V. STEAMSHIP PESARO, 271
U.S. 562. 

AND SO WE COME TO THE IMMEDIATE SITUATION BEFORE US. THE SHORT OF THE
MATTER IS THAT WE ARE NOT DEALING WITH AN ATTEMPT TO BRING A RECOGNIZED
FOREIGN GOVERNMENT INTO ONE OF OUR COURTS AS A DEFENDANT AND SUBJECT IT
TO THE RULE OF LAW TO WHICH NONGOVERNMENTAL OBLIGORS MUST BOW.  WE HAVE
A FOREIGN GOVERNMENT INVOKING OUR LAW BUT RESISTING A CLAIM AGAINST IT
WHICH FAIRLY WOULD CURTAIL ITS RECOVERY.  (FN6)  IT WANTS OUR LAW, LIKE
ANY OTHER LITIGANT, BUT IT WANTS OUR LAW FREE FROM THE CLAIMS OF
JUSTICE.  IT BECOMES VITAL, THEREFORE, TO EXAMINE THE EXTENT TO WHICH
THE CONSIDERATIONS WHICH LED THIS COURT TO BAR A SUIT AGAINST A
SOVEREIGN IN THE SCHOONER EXCHANGE ARE APPLICABLE HERE TO FORECLOSE A
COURT FROM DETERMINING, ACCORDING TO PREVAILING LAW, WHETHER THE
REPUBLIC OF CHINA'S CLAIM AGAINST THE NATIONAL CITY BANK WOULD BE
UNJUSTLY ENFORCED BY DISREGARDING LEGITIMATE CLAIMS AGAINST THE
REPUBLIC OF CHINA.  AS EXPOUNDED IN THE SCHOONER EXCHANGE, THE DOCTRINE
IS ONE OF IMPLIED CONSENT BY THE TERRITORIAL SOVEREIGN TO EXEMPT THE
FOREIGN SOVEREIGN FROM ITS "EXCLUSIVE AND ABSOLUTE" JURISDICTION, THE
IMPLICATION DERIVING FROM STANDARDS OF PUBLIC MORALITY, FAIR DEALING,
RECIPROCAL SELF-INTEREST, AND RESPECT FOR THE "POWER AND DIGNITY" OF
THE FOREIGN SOVEREIGN.  (FN7) 

(A)  THE COURT OF CLAIMS IS AVAILABLE TO FOREIGN NATIONALS (OR THEIR
GOVERNMENTS) ON A SIMPLE CONDITION:  THAT THE FOREIGN NATIONAL'S
GOVERNMENT CAN BE SUED IN ITS COURTS ON CLAIMS BY OUR CITIZENS.  (FN8)
AN AMERICAN OR A CHINESE (FN9) COULD SUE IN THE COURT OF CLAIMS FOR
DEFAULT ON A UNITED STATES BOND, 28 U.S.C. SEC. 1491(4), OR COULD
COUNTERCLAIM - TO THE EXTENT OF THE GOVERNMENT'S CLAIM - IN A SUIT BY
THE UNITED STATES IN ANY COURT, 28 U.S.C.  SEC. 2406; SEE UNITED STATES
V. WILKINS, 6 WHEAT.  135; CF. UNITED STATES V. BANK OF THE METROPOLIS,
15 PET. 377; UNITED STATES V. UNITED STATES F.&G. CO., 309 U.S. 506,
511.  THUS IT SEEMS ONLY FAIR TO SUBJECT A FOREIGN SOVEREIGN, COMING
INTO OUR COURTS BY ITS OWN CHOICE, TO A LIABILITY SUBSTANTIALLY LESS
THAN OUR OWN GOVERNMENT LONG AGO WILLINGLY ASSUMED. 

(B)  THE REPUBLIC OF CHINA IS APPARENTLY SUABLE ON CONTRACT CLAIMS IN
ITS OWN COURTS, (FN10) AND AMERICANS HAVE THE SAME RIGHTS AS CHINESE IN
THOSE COURTS.  (FN11)  NO PAROCHIAL BIAS IS MANIFEST IN OUR COURTS
WHICH WOULD MAKE IT AN AFFRONT TO THE "POWER AND DIGNITY" OF THE
REPUBLIC OF CHINA FOR US TO SUBJECT IT TO COUNTERCLAIMS IN OUR COURTS
WHEN IT ENTERTAINS AFFIRMATIVE SUITS IN ITS OWN.  DECISIONS OF THE
CHINESE COURTS WHICH SEEM TO GRANT ABSOLUTE IMMUNITY FROM DIRECT SUIT
TO FOREIGN SOVEREIGNS (FN12) ARE INAPPOSITE IN THIS CONTEXT AND IN
LIGHT OF OUR STATE DEPARTMENT'S RELUCTANCE TO RAISE THE DEFENSE OF
SOVEREIGN IMMUNITY IN FOREIGN COURTS, SEE 26 DEPT. STATE BULL.  984,
985 (1952); CF.  41 STAT. 527, 46 U.S.C. SEC. 747. 

(C)  RESPONDENT URGES THAT FISCAL MANAGEMENT FALLS WITHIN THE
CATEGORY OF IMMUNE OPERATIONS OF A FOREIGN GOVERNMENT AS DEFINED BY THE
STATE DEPARTMENT'S 1952 PRONOUNCEMENT.  THIS IS NOT TO BE DENIED, BUT
IT IS BESIDE THE POINT.  A SOVEREIGN HAS FREELY COME AS A SUITOR INTO
OUR COURTS; OUR STATE DEPARTMENT NEITHER HAS BEEN ASKED NOR HAS IT
GIVEN THE SLIGHTEST INTIMATION THAT IN ITS JUDGMENT ALLOWANCE OF
COUNTERCLAIMS IN SUCH A SITUATION WOULD EMBARRASS FRIENDLY RELATIONS
WITH THE REPUBLIC OF CHINA. 

(D)  IT IS RECOGNIZED THAT A COUNTERCLAIM BASED ON THE SUBJECT MATTER
OF A SOVEREIGN'S SUIT IS ALLOWED TO CUT INTO THE DOCTRINE OF IMMUNITY. 
(FN13)  THIS IS PROOF POSITIVE THAT THE DOCTRINE IS NOT ABSOLUTE, AND
THAT CONSIDERATIONS OF FAIR PLAY MUST BE TAKEN INTO ACCOUNT IN ITS
APPLICATION.  BUT THE LIMITATION OF "BASED ON THE SUBJECT MATTER" IS
TOO INDETERMINATE, INDEED TOO CAPRICIOUS, TO MARK THE BOUNDS OF THE
LIMITATIONS ON THE DOCTRINE OF SOVEREIGN IMMUNITY.  THERE IS GREAT
DIVERSITY AMONG COURTS ON WHAT IS AND WHAT IS NOT A CLAIM "BASED ON THE
SUBJECT MATTER OF THE SUIT" OR "GROWING OUT OF THE SAME TRANSACTION." 
SEE CLARK, CODE PLEADING (2D ED.), 653-660; CF. UNITED STATES V.
NATIONAL CITY BANK OF NEW YORK, 83 F.2D 236 (C.A.2D CIR.).  NO DOUBT
THE PRESENT COUNTERCLAIMS CANNOT FAIRLY BE DEEMED TO BE RELATED TO THE
RAILWAY AGENCY'S DEPOSIT OF FUNDS EXCEPT INSOFAR AS THE TRANSACTIONS
BETWEEN THE REPUBLIC OF CHINA AND THE PETITIONER MAY BE REGARDED AS
ASPECTS OF A CONTINUOUS BUSINESS RELATIONSHIP.  THE POINT IS THAT THE
ULTIMATE THRUST OF THE CONSIDERATION OF FAIR DEALING WHICH ALLOWS A
SETOFF OR COUNTERCLAIM BASED ON THE SAME SUBJECT MATTER REACHES THE
PRESENT SITUATION.  THE CONSIDERATIONS FOUND CONTROLLING IN THE
SCHOONER EXCHANGE ARE NOT HERE PRESENT, AND NO CONSENT TO IMMUNITY CAN
PROPERLY BE IMPLIED.  THIS CONCLUSION WAS ANTICIPATED BY MR. JUSTICE
WASHINGTON ON CIRCUIT FOUR YEARS AFTER HE HAD BEEN OF THE COURT WHICH
DECIDED THE SCHOONER EXCHANGE.  (FN14) 

THE JUDGMENT OF THE COURT OF APPEALS MUST BE REVERSED AND THE CASE
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO REINSTATE THE
COUNTERCLAIMS AND FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

FN1  THE TREASURY NOTE ON WHICH THE FIRST COUNTERCLAIM IS BASED WAS
PLEDGED BY THE REPUBLIC OF CHINA IN 1920 TO SECURE A LOAN TO THE
PACIFIC DEVELOPMENT COMPANY BY A BANKING SYNDICATE IN WHICH PETITIONER
PARTICIPATED.  THE LOAN WAS NOT REPAID, AND DURING THE LIQUIDATION OF
THE DEVELOPMENT COMPANY THE SYNDICATE BOUGHT THE COLLATERAL AT A PUBLIC
SALE.  THE TREASURY NOTES ON WHICH THE SECOND COUNTERCLAIM IS BASED
WERE PURCHASED BY PETITIONER'S SHANGHAI BRANCH AT THE TIME OF ISSUE IN
1947-1948.  THE RECORD ALLOWS US TO ASSUME THAT THE PETITIONER GAVE
FULL VALUE AS ITS SHARE OF THE LOAN TO THE DEVELOPMENT COMPANY AND
BOUGHT THE NOTES IN THE SECOND COUNTERCLAIM AT PAR. 

FN2  AT THE OUTSET RESPONDENT ARGUES THAT SINCE PETITIONER ON
CERTIORARI HAS DROPPED ITS DEMAND FOR AFFIRMATIVE RELIEF, THE CASE IS
NOT PROPERLY BEFORE US.  IT IS CONCEDED THAT DISMISSAL OF INDEPENDENT
COUNTERCLAIMS WOULD ORDINARILY CONTAIN THE REQUISITE FINALITY ON WHICH
TO BASE OUR JURISDICTION, BUT RESPONDENT CONTENDS THAT WHEN PETITIONER
REDUCED ITS COUNTERCLAIMS TO MERE DEMANDS FOR SETOFF, THE CLAIMS BECAME
DEFENSES AND, AS SUCH, NONREVIEWABLE UNTIL THE RESPONDENT'S SUIT HAD
BEEN CONCLUDED BELOW.  WE REJECT THIS VIEW.  A COUNTERCLAIM DOES NOT
DWINDLE TO A DEFENSE SOLELY BECAUSE IT IS CONFINED - AS A RESULT OF THE
ACCEPTED JURISPRUDENCE OF SOVEREIGN IMMUNITY, SEE UNITED STATES V.
SHAW, 309 U.S. 495 - TO REDUCING THE SOVEREIGN'S RECOVERY.  THE
DISTRICT COURT'S JUDGMENT, AS AFFIRMED BY THE COURT OF APPEALS,
TERMINATED A SEPARABLE AND DISTINCT SEGMENT OF THE LITIGATION.    FN3
ACT OF MAR. 3, 1797, SECS. 3, 4, 1 STAT. 514-515.  THE PRESENT VERSION
APPEARS IN 28 U.S.C. SEC. 2406.    FN4  ACT OF FEB. 24, 1855, 10 STAT.
612, AS AMENDED, 12 STAT. 765, 14 STAT. 9; SEE UNITED STATES V. JONES,
119 U.S. 477. 

FN5  THE MOST RECENT DEVELOPMENT IS THE SUBJECTION OF THE GOVERNMENT
TO TORT LIABILITY.  ACT OF AUG. 2, 1946, NOW 28 U.S.C. SEC. 1346(B). 

FN6  THOSE CASES THAT HAVE DEALT WITH THE PROBLEM INCLUDE:  REPUBLIC
OF CHINA V. AMERICAN EXPRESS CO., 195 F.2D 230 (C.A.2D CIR.); UNITED
STATES V. NATIONAL CITY BANK OF NEW YORK, 83 F.2D 236 (C.A.2D CIR.); IN
RE PATTERSON-MACDONALD SHIPBUILDING CO., 293 F. 192 (C.A. 9TH CIR.);
KINGDOM OF ROUMANIA V. GUARANTY TRUST CO., 250 F. 341 (C.A.2D CIR.);
HUNGARIAN PEOPLE'S REPUBLIC V. CECIL ASSOCIATES, INC., 118 F. SUPP. 954
(D.C.S.D.N.Y.); REPUBLIC OF CHINA V. PANG-TSU MOW, 105 F. SUPP. 411
(D.C.D.C.); UNITED STATES V. NATIONAL CITY BANK OF NEW YORK, 90 F.
SUPP. 448 (D.C.S.D.N.Y.); UNITED STATES V. NEW YORK TRUST CO., 75 F.
SUPP. 583 (D.C.S.D.N.Y.); KINGDOM OF NORWAY V. FEDERAL SUGAR REFINING
CO., 286 F. 188 (D.C.S.D.N.Y., MACK, J.); FRENCH REPUBLIC V. INLAND
NAV. CO., 263 F. 410 (D.C.E.D. MO.); UNION OF SOVIET REPUBLICS V.
BELAIEW, 42 T.L.R. 21 (K.B. DIV.); SOUTH AFRICAN REPUBLIC V. LA
COMPAGNIE FRANCO-BELGE, (1898) 1 CH. 190; CF. GUARANTY TRUST CO. V.
UNITED STATES, 304 U.S. 126; DEXTER & CARPENTER, INC. V. KUNGLIG
JARNVAGSSTYRELSEN, 43 F.2D 705 (C.A.2D CIR.); STROUSBERG V. REPUBLIC OF
COSTA RICA, 44 L.T.R. (N.S.)  199 (C.A.); CLAIM OF THE RUSSIAN
VOLUNTEER FLEET AGAINST THE BRITISH ADMIRALTY, ANNUAL DIGEST OF PUBLIC
INTERNATIONAL LAW CASES 1925-1926, P. 210 (BRITISH ADMIRALTY TRANSPORT
ARBITRATION BOARD; AFFIRMED BY COURT OF APPEAL). 

OF THE CITED AMERICAN DECISIONS, ONLY TWO DISTRICT COURT CASES
DIRECTLY INVOLVED THE DISMISSAL OF COUNTERCLAIMS NOT BASED ON THE
SUBJECT MATTER OF THE SOVEREIGN'S SUIT AND NOT SEEKING AFFIRMATIVE
JUDGMENT:  REPUBLIC OF CHINA V. PANG-TSU MOW, SUPRA, AND UNITED STATES
V. NEW YORK TRUST CO., SUPRA.

FN7  7 CRANCH, AT 136-137, 143-144.  FOR A COMPREHENSIVE CRITIQUE OF
THE DOCTRINE AS IT HAS SUBSEQUENTLY BEEN APPLIED, SEE LAUTERPACHT, THE
PROBLEM OF JURISDICTIONAL IMMUNITIES OF FOREIGN STATES, 28 BRIT.  Y.B.
INT'L L. 220. 

THE PRIVY COUNCIL RECENTLY REJECTED THE VIEW OF LORD JUSTICE SCRUTTON
IN THE JUPITER, (1924) P. 236 (C.A.), THAT THE MERE ASSERTION OF A
CLAIM BY A FOREIGN GOVERNMENT TO PROPERTY THE SUBJECT OF AN ACTION BY A
PRIVATE PARTY COMPELS THE COURT TO STAY THE ACTION AND DECLINE
JURISDICTION.  JUAN YSMAEL & CO. V. REPUBLIC OF INDONESIA, (1954) 3
W.L.R. 531.  EARL JOWITT REVIEWED THE DECISIONS AND INDICATED SOME OF
THE SUBTLETIES INTO WHICH THE DOCTRINE HAS LED THE ENGLISH COURTS.  CF.
REPUBLIC OF MEXICO V. HOFFMAN, 324 U.S. 30, 38-42 (CONCURRING
OPINION). 

FN8  28 U.S.C. SEC. 2502.  THE EARLIEST VERSION OF THIS STATUTE
APPEARS IN 15 STAT.  243 (ACT OF JULY 27, 1868); SEE UNITED STATES V.
O'KEEFE, 11 WALL.  178; CF. 43 STAT.  1113, 46 U.S.C. SEC. 785; WESTFAL
LARSEN & CO. V. UNITED STATES, 41 F.2D 550 (D.C.N.D.  CALIF.).  THAT AN
AMERICAN CITIZEN CAN SUE THE CHINESE GOVERNMENT IN CHINESE COURTS, SEE
JUDICIAL YUAN INTERPRETATION NO. 6 (FEB. 16, 1929). 

FN9  SEE TREATY OF NOV. 4, 1946, ART. VI, SEC. 4, 63 STAT. 1305. 

FN10  JUDICIAL YUAN INTERPRETATION NO. 373 (DEC. 15, 1930); SUPREME
COURT UNIFORM INTERPRETATION NO. 1933 (PEKING, JUNE 22, 1925), 3 CHINA
L. REV., NO. 2, P. 84; CF. JUDICIAL YUAN INTERPRETATION NO. 6 (FEB. 16,
1929); CONSTITUTION OF THE REPUBLIC OF CHINA, ART. 24 (1947). 

FN11  TREATY OF NOV. 4, 1946, ART. VI, SEC. 4, 63 STAT. 1305. 

FN12  SEE RIZAEFF FRERES V. THE SOVIET MERCANTILE FLEET, 3 CHINA L.
REV., NO. 6, P. 14 (PROVISIONAL COURT OF SHANGHAI 1927). 

FN13  E.G., HUNGARIAN PEOPLE'S REPUBLIC V. CECIL ASSOCIATES, INC.,
118 F. SUPP. 954 (D.C.S.D.N.Y.); FRENCH REPUBLIC V. INLAND NAV. CO.,
263 F. 410 (D.C.E.D. MO.); CF.  REPUBLIC OF CHINA V. AMERICAN EXPRESS
CO., 195 F.2D 230 (C.A.2D CIR.). 

FN14  THE CASE IS KING OF SPAIN V. OLIVER, 1 PET. C.C. 276, 14 FED.
CAS. 572, NO. 7,813 (C.C.D. PA.).  THE KING OF SPAIN HAD SUED TWO
AMERICANS FOR DUTIES HE ALLEGED THEY OWED HIM ON SHIPMENTS OF GOODS
THEY HAD MADE TO THE SPANISH AMERICAN COLONIES UNDER ROYAL LICENSES. 
THE DEFENDANTS REPLIED THAT THEY HAD OBTAINED THE LICENSES FROM AND
PAID THE DUTIES TO HOPE & CO., A DUTCH CONCERN WHICH HAD A COMMERCIAL
CONCESSION FROM THE KING IN RETURN FOR WHICH IT HAD PROMISED, INTER
ALIA, TO PAY DUTIES ON SHIPMENTS TO THE COLONIES.  HOPE HAD ALSO
NEGOTIATED A LOAN FOR THE KING IN WHAT APPEARS TO HAVE BEEN AN
UNRELATED TRANSACTION, AND THE KING HAD PLEDGED ALL HIS PUBLIC REVENUES
TO REPAY THE LOAN.  INSTEAD OF HANDING OVER THE DUTIES RECEIVED FROM
DEFENDANTS TO THE KING, HOPE APPLIED THEM TO REDUCE THE DEBT DUE FROM
THE KING ON THE LOAN. 

MR. JUSTICE WASHINGTON DIRECTED A VERDICT FOR THE DEFENDANTS.  FIRST
HE HELD THAT THERE WAS NO PRIVITY OF CONTRACT BETWEEN THE DEFENDANTS
AND THE KING, SO THAT PAYMENT TO HOPE DISCHARGED THEM.  BUT ASSUMING
THAT THERE WAS PRIVITY HE RULED THAT THE DUTIES HAD BEEN PROPERLY
APPLIED BY HOPE TO REDUCE THE KING'S DEBT TO IT.  "LET IT BE, AS WAS
ARGUED, THAT THE CONSENT OF THE SPANISH GOVERNMENT, UNDER THE
ADMINISTRATION OF JOSEPH BONAPARTE, WHO HAD, WHILE IN POWER, AGREED
THAT THE DUTIES BE APPLIED TO REDUCE THE DEBT, WAS INVALID AND OF NO
OBLIGATION UPON FERDINAND; STILL, FERDINAND, AS THE SUCCESSOR OF HIS
FATHER CHARLES IV, TO WHOM THE LOAN HAD BEEN MADE, AND THE NATION, WERE
AND ARE BOUND TO PAY THE DEBT DUE IN HOLLAND; AND IF IT HAS BEEN IN
PART DISCHARGED, OUT OF FUNDS CHARGED WITH THE PAYMENT OF IT BECAUSE
THEY WERE PUBLIC REVENUES, IN THE HANDS OF HOPE AND CO., THE PAYMENTS
OF THE DUTIES, HAVE IN EFFECT BEEN MADE TO THE PLAINTIFF, BECAUSE HE
OWES, OF THE DEBT DUE IN HOLLAND, LESS THAN WHAT WAS ORIGINALLY DUE, BY
THE AMOUNT OF DUTIES WHICH WERE APPLIED TO ITS DISCHARGE BY HOPE AND
CO. AFTER SUCH AN APPLICATION, WHICH I REPEAT IT, HOPE AND CO. WERE
AUTHORISED TO MAKE, UNDER ALL THE CIRCUMSTANCES OF THE CASE, THIS
ACTION CANNOT BE SUPPORTED, TO RECOVER THE AMOUNT OF THE DUTIES SO
APPROPRIATED."  1 PET. C.C., AT 289-290, 14 FED. CAS., AT 577. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON AND MR. JUSTICE CLARK,
JOIN, DISSENTING. 

SOME DATA MUST BE PREMISED IF DISCUSSION IS TO BE CONFINED TO A
REASONABLE SPACE.  WE START WITH THE POSTULATE THAT THE SOVEREIGN IS
RELEASED FROM THE JURISDICTION OF ITS OWN COURTS EXCEPT AS IT MAY
SPECIFICALLY SUBMIT ITSELF TO THEIR POWER.  (FN1) 

THAT DOES NOT CREATE A SITUATION OF IRRESPONSIBILITY.  SATISFACTION
OF SOVEREIGN LIABILITY MAY BE HAD THROUGH THE LEGISLATIVE ORGAN WHICH
RECOGNIZES A MORAL OBLIGATION TO PAY THE CREDITORS OF THE GOVERNMENT
AND TO COMPENSATE THOSE INJURED BY IT. 

A SOVEREIGN'S FREEDOM FROM JUDICIAL CONTROL DOES NOT ARISE FROM OR
DEPEND UPON THE WILL OF THE COURTS.  AS WAS SAID IN THE SCHOONER
EXCHANGE IN SPEAKING OF THE IMMUNITY OF A FOREIGN GOVERNMENT, IT
DEPENDS UPON "THE WILL OF THE SOVEREIGN OF THE TERRITORY."  "  ...  ALL
EXEMPTIONS FROM TERRITORIAL JURISDICTION, MUST BE DERIVED FROM THE
CONSENT OF THE SOVEREIGN  ...  ."  7 CRANCH 116, 138, 143.  THE
IMMUNITY RESTS ON THE GROUND THAT NO ENFORCEABLE RIGHT EXISTS "AGAINST
THE AUTHORITY THAT MAKES THE LAW ON WHICH THE RIGHT DEPENDS."  (FN2) 

THE REASON FOR THE SOVEREIGN'S CONSENT TO THE EXCLUSION OF FOREIGN
SOVEREIGNTIES FROM THE GENERAL JURISDICTION OF ITS COURTS WAS SAID BY
CHIEF JUSTICE MARSHALL TO REST ON THIS PROPOSITION: 

"THE WORLD BEING COMPOSED OF DISTINCT SOVEREIGNTIES, POSSESSING EQUAL
RIGHTS AND EQUAL INDEPENDENCE, WHOSE MUTUAL BENEFIT IS PROMOTED BY
INTERCOURSE WITH EACH OTHER, AND BY AN INTERCHANGE OF THOSE GOOD
OFFICES WHICH HUMANITY DICTATES AND ITS WANTS REQUIRE, ALL SOVEREIGNS
HAVE CONSENTED TO A RELAXATION IN PRACTICE, IN CASES UNDER CERTAIN
PECULIAR CIRCUMSTANCES, OF THAT ABSOLUTE AND COMPLETE JURISDICTION
WITHIN THEIR RESPECTIVE TERRITORIES WHICH SOVEREIGNTY CONFERS. 

"THIS CONSENT MAY, IN SOME INSTANCES, BE TESTED BY COMMON USAGE, AND
BY COMMON OPINION, GROWING OUT OF THAT USAGE."  7 CRANCH, AT 136. 

IT MIGHT BE SUMMARIZED BY THE WORD "COMITY."  (FN3)  THE LOCAL
SOVEREIGN MAY, OF COURSE, WITHDRAW SUCH CONSENT. 

"WITHOUT DOUBT, THE SOVEREIGN OF THE PLACE IS CAPABLE OF DESTROYING
THIS IMPLICATION.  HE MAY CLAIM AND EXERCISE JURISDICTION EITHER BY
EMPLOYING FORCE, OR BY SUBJECTING SUCH VESSELS TO THE ORDINARY
TRIBUNALS.  BUT UNTIL SUCH POWER BE EXERTED IN A MANNER NOT TO BE
MISUNDERSTOOD, THE SOVEREIGN CANNOT BE CONSIDERED AS HAVING IMPARTED TO
THE ORDINARY TRIBUNALS A JURISDICTION, WHICH IT WOULD BE A BREACH OF
FAITH TO EXERCISE."  ID., AT 146.  (FN4) 

AN ANCILLARY PRINCIPLE OF LAW IS THAT, IN DETERMINING WHETHER A
DEFENDANT IS A SOVEREIGN, THE COURTS FOLLOW THE GUIDANCE OF THE
POLITICAL BRANCH.  (FN5)  IN THIS CASE THE SOVEREIGNTY OF THE REPUBLIC
OF CHINA IS NOT QUESTIONED.  FURTHERMORE, THE CHINESE GOVERNMENT
TREASURY NOTE AND ITS 36TH YEAR SHORT TERM TREASURY NOTES UPON WHICH
THE CITY BANK'S COUNTERCLAIMS REST ARE SOVEREIGN OBLIGATIONS, JURE
IMPERII IN FORM, OF THE HIGHEST PUBLIC CHARACTER.  CONSEQUENTLY, THE
ATTITUDE OF THE DEPARTMENT OF STATE AS TO THE DESIRABILITY OF RELAXING
THE STRICT RULE OF IMMUNITY AS TO ACTS OF COMMERCE, JURE GESTIONIS, IS
INAPPLICABLE.  SEE 26 DEPT. STATE BULL.  984 (1952), REFERRED TO IN THE
COURT'S OPINION, P. 361. 

IF THE FOREGOING STATEMENTS OF LAW ARE SOUND, THE REPUBLIC OF CHINA
AS A FOREIGN SOVEREIGN IS FREE FROM DIRECT SUITS IN OUR COURTS ON THE
NOTES HERE IN QUESTION UNLESS THE CONGRESS OF THE UNITED STATES HAS
ENACTED A STATUTE THAT RESTRICTS ITS IMMUNITY.  THIS IT HAS NOT DONE. 
THE QUESTION IN THIS CASE THUS COMES DOWN TO WHETHER THE REPUBLIC OF
CHINA, BY BRINGING THIS SUIT FOR THE RECOVERY OF A BANK DEPOSIT, WAIVED
ITS IMMUNITY AND SUBJECTED ITSELF TO A COUNTERCLAIM UNDER THE FED.
RULES CIV. PROC., RULE 13.  UNDER THE WORDS OF SEC. (C) OF THAT RULE,
JUDGMENT OVER AGAINST THE REPUBLIC OF CHINA WOULD SEEM TO BE AUTHORIZED
IF THE COUNTERCLAIM WERE FOR MORE THAN PLAINTIFF'S CLAIM.  BUT THERE
WOULD BE NO JURISDICTION TO RENDER SUCH JUDGMENT IN AN AMERICAN COURT. 
IT WOULD VIOLATE THE IMMUNITY OF A FOREIGN SOVEREIGN TO DO SO.  (FN6)
IN THE PRESENT CASE, THE COURT EVIDENTLY FEELS THAT, SINCE THE
COUNTERCLAIM IS LIMITED TO THE AMOUNT OF THE REPUBLIC OF CHINA'S CLAIM,
THERE IS JURISDICTION TO ALLOW A SETOFF TO THAT EXTENT.  BUT THE MERE
FACT THAT A JUDGMENT OVER IS NOT SOUGHT SHOULD NOT BE RELIED UPON TO
AVOID THE JURISDICTIONAL IMMUNITY OF A FOREIGN SOVEREIGN.  I FIND NO
JUSTIFICATION FOR THE COURT'S RESTRICTING THAT IMMUNITY IN THE ABSENCE
OF LEGISLATIVE OR EXECUTIVE ACTION.  (FN7) 

AFFIRMATIVE LEGISLATIVE ACTION WAS NECESSARY TO ALLOW SUCH A LIMITED
SETOFF AGAINST THE UNITED STATES.  (FN8)  ACTION OF A SIMILAR NATURE
SHOULD BE REQUIRED TO AUTHORIZE THIS SETOFF.  THE COMITY THAT GAVE THE
FOREIGN SOVEREIGN FULL IMMUNITY FROM PROCESS WAS, AS THE SCHOONER
EXCHANGE POINTED OUT, P. 146, ONLY TO BE WITHDRAWN "IN A MANNER NOT TO
BE MISUNDERSTOOD."  THAT IS BY LEGISLATION.  (FN9)  THE JUDICIAL
CREATION OF SUCH JURISDICTION OVER THE PROPERTY OF A FRIENDLY NATION
MIGHT WELL MERIT THE STRICTURE OF CHIEF JUSTICE MARSHALL: 

"A NATION WOULD JUSTLY BE CONSIDERED AS VIOLATING ITS FAITH, ALTHOUGH
THAT FAITH MIGHT NOT BE EXPRESSLY PLIGHTED, WHICH SHOULD SUDDENLY AND
WITHOUT PREVIOUS NOTICE, EXERCISE ITS TERRITORIAL POWERS IN A MANNER
NOT CONSONANT TO THE USAGES AND RECEIVED OBLIGATIONS OF THE CIVILIZED
WORLD."  7 CRANCH, AT 137. 

INTERNATIONAL RELATIONS ARE PRE-EMINENTLY A MATTER OF PUBLIC POLICY. 
JUDICIAL VIEWS OF SUPPOSED PUBLIC INTERESTS ARE NOT THE TOUCHSTONE
WHEREBY TO DETERMINE THE LAW.  (FN10)  THE CHANGE FROM A GENEROUS TO A
PARSIMONIOUS APPLICATION OF THE PRINCIPLE OF SOVEREIGN IMMUNITY SHOULD
COME FROM CONGRESS OR THE EXECUTIVE.  OUR COURTS POSSESS GREAT POWERS
AND HAVE SOLEMN OBLIGATIONS.  OUR COUNTRY ALLOTS POWER TO THE JUDICIARY
IN THE CONFIDENCE THAT, IN VIEW OF THE SEPARATION OF POWERS, JUDICIAL
AUTHORITY WILL NOT UNDERTAKE DETERMINATIONS WHICH ARE THE PRIMARY
CONCERN OF OTHER BRANCHES OF OUR GOVERNMENT.  DIFFERENCES OF VIEW EXIST
AS TO THE DESIRABLE SCOPE OF SOVEREIGN IMMUNITY AND THE NECESSITY FOR
NONJUDICIAL DETERMINATIONS.  (FN11)  BUT SURELY IT IS BETTER THAT THE
DECISIONS BE LEFT TO THOSE ORGANS OF GOVERNMENT THAT HAVE THE
RESPONSIBILITY FOR DETERMINING PUBLIC POLICY IN CARRYING OUT FOREIGN
AFFAIRS.  THE ESTABLISHMENT OF POLITICAL OR ECONOMIC POLICIES IS NOT
FOR THE COURTS.  SUCH ACTION WOULD BE AN ABUSE OF JUDICIAL POWER.  IT
IS ONLY BY A CONSCIOUS AND DETERMINED PURPOSE TO KEEP THE FUNCTIONS OF
THE VARIOUS BRANCHES OF GOVERNMENT SEPARATE THAT THE COURTS CAN MOST
EFFECTIVELY CARRY OUT THEIR DUTIES.  I WOULD LEAVE THIS QUESTION OF THE
JURISDICTIONAL IMMUNITY OF FOREIGN SOVEREIGNS TO THE OTHER BRANCHES. 

THE COURT DETERMINES, HOWEVER, THAT THE QUESTION OF CHANGING THE
LIMITATION OF THE IMMUNITY OF FOREIGN SOVEREIGNS PERTAINS TO ITS
FUNCTIONS.  EVEN ON THE ASSUMPTION THAT SUCH IS A PROPER MATTER FOR
JUDICIAL CONCERN, I WOULD REACH A DIFFERENT CONCLUSION THAN DOES THE
COURT.  IF A DIRECT SUIT CANNOT BE BROUGHT AGAINST A FOREIGN SOVEREIGN
(AS IS CONCEDED), WHY SHOULD WE ALLOW THE SAME CLAIM TO BE USED AS AN
OFFSET TO DESTROY THE SOVEREIGN'S RIGHT TO RECOVER?  WHY SHOULD THE
CITY BANK BE ABLE TO ASSERT ITS NOTES AGAINST THE REPUBLIC OF CHINA,
EVEN DEFENSIVELY, WHEN OTHER NOTEHOLDERS NOT OBLIGATED TO THE SOVEREIGN
ARE PREVENTED FROM COLLECTING THEIR NOTES?  HERE WE HAVE AN ENTIRELY
DISCONNECTED CLAIM ON OVERDUE NATIONAL NOTES BROUGHT FORWARD AS A
DEFENSE TO AN ACTION TO RECOVER A BANK DEPOSIT.  THE COURT RECOGNIZES
THAT THE COUNTERCLAIM IS NOT RELATED TO CHINA'S CAUSE OF ACTION AGAINST
THE CITY BANK.  IT SAYS:   "THE POINT IS THAT THE ULTIMATE THRUST OF
THE CONSIDERATION OF FAIR DEALING WHICH ALLOWS A SETOFF OR COUNTERCLAIM
BASED ON THE SAME SUBJECT MATTER REACHES THE PRESENT SITUATION." 

THE COUNTERCLAIM HERE IS OF MUCH THE SAME CHARACTER AS A SUIT AGAINST
A FOREIGN SOVEREIGN.  DEPOSITS MAY BE THE LIFEBLOOD NECESSARY FOR
NATIONAL EXISTENCE.  IT IS NOT WISE FOR US TO TELL THE NATIONS OF THE
WORLD THAT ANY ASSETS THEY MAY HAVE IN THE UNITED STATES, NOW OR IN THE
FUTURE, UPON WHICH SUIT MUST BE BROUGHT, ARE SUBJECT TO EVERY
COUNTERCLAIM THEIR DEBTORS CAN ACQUIRE AGAINST THEM AT PAR OR AT A
DISCOUNT.  IT IS UNFAIR TO OUR FOREIGN FRIENDS AND DETRIMENTAL TO OUR
OWN FINANCIAL AND MERCANTILE INTERESTS.  FOR FAIRNESS WE NEED NOT GO
BEYOND THE ALLOWANCE OF COUNTERCLAIMS ARISING OUT OF TRANSACTIONS
FOREIGN SOVEREIGNS SEEK TO ENFORCE IN OUR COURTS.  IT SEEMS TO ME THAT
THE COURT SANCTIONS A CIRCUITOUS EVASION OF THE WELL-ESTABLISHED RULE
PROHIBITING DIRECT SUITS AGAINST FOREIGN SOVEREIGNS. 

I WOULD AFFIRM. 

FN1  UNITED STATES V. CLARKE, 8 PET. 436, 444; KANSAS V. UNITED
STATES, 204 U.S. 331, 341; LARSON V. DOMESTIC & FOREIGN COM. CORP., 337
U.S. 682, 703. 

FN2  KAWANANAKOA V. POLYBLANK, 205 U.S. 349, 353; UNITED STATES V.
SHAW, 309 U.S. 495, 501.  CF. DUFF DEVELOPMENT CO. V. GOVERNMENT OF
KELANTAN, (1924) A.C. 797. 

FN3  COMPANIA NAVIERA VASCONGADO V. S.S. CRISTINA, (1938) A.C. 485,
498. 

FN4  SEE BERIZZI BROS. CO. V. S.S. PESARO, 271 U.S. 562, 571 ET SEQ. 

FN5  EX PARTE PERU, 318 U.S. 578, 588; MEXICO V. HOFFMAN, 324 U.S.
30, 35.  CF. DUFF DEVELOPMENT CO. V. GOVERNMENT OF KELANTAN, SUPRA, AT
815. 

FN6 CF. UNITED STATES V. SHAW, 309 U.S. 495, 502.  IN SOUTH AFRICAN
REPUBLIC V. LA COMPAGNIE FRANCO-BELGE, (1898) I CH. 190, 198, A FOREIGN
SOVEREIGN SUED TO ENJOIN THE USE OF DEPOSITED FUNDS.  ON A COUNTERCLAIM
NOT CONNECTED WITH THE ISSUE CONCERNING THE FUNDS, MR. JUSTICE NORTH
HELD THE FOREIGN GOVERNMENT COULD NOT BE SUED, CITING DUKE OF BRUNSWICK
V. KING OF HANOVER, 6 BEAV.  68, AND STROUSBERG V. REPUBLIC OF COSTA
RICA, 29 WEEKLY REPORTER 125, 44 L.T.R. (N.S.)  199. 

FN7  PROBABLY BECAUSE IT IS OBVIOUS THAT THERE IS NO TENABLE
DISTINCTION BETWEEN THE SETOFF OF AN UNRELATED CLAIM, A PROCEEDING FOR
A JUDGMENT OVER ON A COUNTERCLAIM, AND A DIRECT SUIT AGAINST A FOREIGN
SOVEREIGN, FEW CASES HAVE DEALT WITH THIS PHASE OF THE IMMUNITY OF A
FOREIGN SOVEREIGN FROM CLAIMS.  NONE THAT HAVE DISCUSSED THE ISSUE HAVE
REACHED THE RESULT WHICH THE COURT TAKES TODAY.  IN ADDITION TO THE TWO
CASES CITED IN NOTE 6 OF THE MAJORITY OPINION, THE SAME ISSUE HERE
PRESENTED WAS CONSIDERED AND DECIDED IN ACCORD WITH MY POSITION IN THE
ONLY FOREIGN CASE DISCUSSING THE ISSUE THAT HAS COME TO MY ATTENTION. 
IN THE STATE OF BELGIUM V. E.A.G. DE BADTS, NEDERLANDSCHE
JURISPRUDENTIE, 1923, P. 618, ANN. DIG.  OF PUB. INT'L LAW CASES 1919
1922, P. 129, THE BELGIAN GOVERNMENT, A FOREIGN SOVEREIGN, BROUGHT SUIT
IN THE DUTCH COURTS FOR AN ACCOUNT OF THE SALE OF A CERTAIN CARGO OF
WHEAT.  THE DEFENDANT SOUGHT TO SET OFF AN ENTIRELY UNRELATED CLAIM
WHICH HE HAD AGAINST THE BELGIAN GOVERNMENT.  THE COURT HELD: 

"THAT THE COURT HAD NO JURISDICTION TO TAKE COGNISANCE OF THE COUNTER
CLAIM AGAINST THE BELGIAN STATE.  A STATE WHICH IS ENTITLED TO CLAIM
IMMUNITY FROM FOREIGN JURISDICTION DOES NOT LOSE THIS RIGHT BY THE FACT
THAT IT SUBMITS TO THAT JURISDICTION IN ANOTHER SUIT.  THE CORRECTNESS
OF THIS STATEMENT IS NOT IMPAIRED BY THE CIRCUMSTANCE THAT THE TWO
ACTIONS ARE, FOR THE SAKE OF CONVENIENCE, JOINED IN THE SAME
PROCEEDINGS, SINCE THE COUNTER-CLAIM DOES NOT LOSE, IN CONSEQUENCE
THEREOF, ITS INDEPENDENT CHARACTER.  THIS IS SO PARTICULARLY IN CASES
IN WHICH THE PLAINTIFF GOVERNMENT BASES ITS CLAIM ON A PRIVATE LAW
TITLE, BUT IN COUNTER-CLAIM IS SUED FOR ACTS PERFORMED IN ITS SOVEREIGN
CAPACITY." 

NOR CAN THE MAJORITY DERIVE MUCH SUPPORT FROM KING OF SPAIN V.
OLIVER, 1 PET. C.C. 276, CITED ON P. 365, N. 14, OF THE COURT'S
OPINION.  THE QUESTION OF SOVEREIGN IMMUNITY WAS NOT CONSIDERED OR EVEN
MENTIONED IN THAT CASE, SINCE NO SETOFF OR COUNTERCLAIM WAS ASSERTED
AGAINST THE FOREIGN SOVEREIGN.  THE COURT SIMPLY HELD THAT PAYMENT, IN
THE MANNER AND UNDER THE CIRCUMSTANCES THERE PRESENTED, WAS A GOOD
DEFENSE TO A SUIT ON A DEBT. 

FN8  SEE UNITED STATES V. SHAW, 309 U.S. 495, 501. 

FN9  SEE LAUTERPACHT, THE PROBLEM OF JURISDICTIONAL IMMUNITIES OF
FOREIGN STATES, BRITISH YEAR BOOK OF INTERNATIONAL LAW, 1951, VOL.
XXVIII, AT PP. 239, 269; MEXICO V. HOFFMAN, 324 U.S. 30, 38; BERIZZI
BROS. CO. V. S.S. PESARO, 271 U.S. 562, 573, 576. 

FN10  VIDAL V. PHILADELPHIA, 2 HOW.  127, 197-198; MUSCHANY V. UNITED
STATES, 324 U.S. 49, 66. 

FN11  DISSENTS IN GREAT NORTHERN INS. CO. V. READ, 322 U.S. 47, 57,
AND LARSON V. DOMESTIC & FOREIGN CORP., 337 U.S. 682, 723; CONCURRING
OPINION IN MEXICO V. HOFFMAN, 324 U.S. 30, 40. 
..END :
















SAPIR V. UNITED STATES 348 U.S. 373 


NO. 534.  DECIDED MARCH 7, 1955 - 216 F.2D 722, JUDGMENT VACATED. 


FINDING THAT THE JUDGMENT OF THE COURT OF APPEALS REVERSING THE
JUDGMENT OF CONVICTION IN THIS CASE AND INSTRUCTING THE TRIAL COURT TO
DISMISS THE INDICTMENT WAS CORRECT, THIS COURT REINSTATES THAT JUDGMENT
AND VACATES A SUBSEQUENT JUDGMENT DIRECTING A NEW TRIAL. 

SAPIR V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED. 

WE BELIEVE THAT THE JUDGMENT OF THE COURT OF APPEALS OF OCTOBER 20,
1954, REVERSING AND REMANDING THIS CAUSE WITH INSTRUCTIONS TO DISMISS
THE INDICTMENT WAS CORRECT.  IT IS NOT NECESSARY FOR US TO PASS ON THE
QUESTION PRESENTED UNDER ITS SUBSEQUENT JUDGMENT OF NOVEMBER 17, 1954,
DIRECTING A NEW TRIAL.  WE VACATE THE LATTER JUDGMENT, WHICH DIRECTED
THE NEW TRIAL, AND WE REINSTATE THE FORMER ONE WHICH INSTRUCTED THE
TRIAL COURT TO DISMISS THE INDICTMENT. 

MR. JUSTICE DOUGLAS, CONCURRING. 

PETITIONER WAS CONVICTED BY THE JURY OF A CONSPIRACY TO DEFRAUD THE
UNITED STATES.  PETITIONER MOVED FOR A JUDGMENT OF ACQUITTAL.  THE
DISTRICT COURT DENIED THE MOTION.  ON APPEAL, THE COURT OF APPEALS HELD
THAT THAT MOTION SHOULD HAVE BEEN GRANTED, AS THE EVIDENCE WAS
INSUFFICIENT TO CONVICT.   216 F.2D 722.  IT ACCORDINGLY REVERSED AND
REMANDED THE CAUSE WITH INSTRUCTIONS TO DISMISS THE INDICTMENT.  LATER,
THE GOVERNMENT MOVED TO AMEND THE JUDGMENT SO AS TO GRANT A NEW TRIAL
ON THE GROUND OF NEWLY DISCOVERED EVIDENCE.  THE COURT OF APPEALS
GRANTED THE MOTION OF THE GOVERNMENT. 

THE GRANTING OF A NEW TRIAL AFTER A JUDGMENT OF ACQUITTAL FOR LACK OF
EVIDENCE VIOLATES THE COMMAND OF THE FIFTH AMENDMENT THAT NO PERSON
SHALL "BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF
LIFE OR LIMB." 

THE CORRECT RULE WAS STATED IN KEPNER V. UNITED STATES, 195 U.S. 100,
AT 130, "IT IS, THEN, THE SETTLED LAW OF THIS COURT THAT FORMER
JEOPARDY INCLUDES ONE WHO HAS BEEN ACQUITTED BY A VERDICT DULY RENDERED
...  ."  IF THE JURY HAD ACQUITTED, THERE PLAINLY WOULD BE DOUBLE
JEOPARDY TO GIVE THE GOVERNMENT ANOTHER GO AT THIS CITIZEN.  IF, AS IN
THE KEPNER CASE, THE TRIAL JUDGE HAD RENDERED A VERDICT OF ACQUITTAL,
THE GUARANTEE AGAINST DOUBLE JEOPARDY WOULD PREVENT A NEW TRIAL OF THE
OLD OFFENSE.  I SEE NO DIFFERENCE WHEN THE APPELLATE COURT ORDERS A
JUDGMENT OF ACQUITTAL FOR LACK OF EVIDENCE. 

IF PETITIONER HAD ASKED FOR A NEW TRIAL, DIFFERENT CONSIDERATIONS
WOULD COME INTO PLAY, FOR THEN THE DEFENDANT OPENS THE WHOLE RECORD FOR
SUCH DISPOSITION AS MIGHT BE JUST.  SEE BRYAN V. UNITED STATES, 338
U.S. 552.  AND SEE TRONO V. UNITED STATES, 199 U.S. 521; STROUD V.
UNITED STATES, 251 U.S. 15, 18; FRANCIS V. RESWEBER, 329 U.S. 459,
462.  MOREOVER, A REVERSAL BY THE APPELLATE COURT ON GROUNDS OF ERROR
THAT INFECTED THE TRIAL WOULD ALSO BE DIFFERENT, AS PALKO V.
CONNECTICUT, 302 U.S. 319, SHOWS.  BUT AN ACQUITTAL ON THE BASIS OF
LACK OF EVIDENCE CONCLUDES THE CONTROVERSY, AS THE KEPNER CASE HOLDS,
AND PUTS IT AT REST UNDER THE PROTECTION OF THE DOUBLE JEOPARDY CLAUSE,
ABSENT A MOTION BY THE DEFENDANT FOR A NEW TRIAL. 
..END :









WILBURN BOAT CO. V. FIREMAN'S FUND INSURANCE CO. 348 U.S. 310 


NO. 7.  ARGUED OCTOBER 14-15, 1954 - DECIDED FEBRUARY 28, 1955 - 201
F.2D 833, REVERSED AND REMANDED. 


UNDER A POLICY OF MARINE INSURANCE, THE OWNERS OF A SMALL HOUSEBOAT
USED FOR COMMERCIAL CARRIAGE OF PASSENGERS ON AN INLAND LAKE BETWEEN
TEXAS AND OKLAHOMA SUED THE INSURER TO RECOVER FOR THE LOSS OF THE BOAT
BY FIRE WHILE MOORED ON THE LAKE.  THE INSURER DEFENDED ON THE GROUND
OF ALLEGED BREACHES OF WARRANTIES AGAINST SALE, TRANSFER, ASSIGNMENT,
PLEDGE, HIRE, CHARTER OR USE OF THE BOAT FOR COMMERCIAL PURPOSES
WITHOUT THE INSURER'S WRITTEN CONSENT.  CLAIMING THAT THE POLICY HAD
BEEN MADE AND DELIVERED IN TEXAS, THE OWNERS URGED THAT THE CASE WAS
CONTROLLED BY TEXAS LAW, UNDER WHICH NO BREACH OF THE PROVISIONS OF A
FIRE INSURANCE POLICY IS A DEFENSE TO ANY SUIT UNLESS THE BREACH
CONTRIBUTES TO THE LOSS.  HELD:  THE CASE IS REMANDED FOR TRIAL UNDER
APPROPRIATE STATE LAW.  PP. 311-321. 

(A)  SINCE THE INSURANCE POLICY HERE SUED ON IS A MARITIME CONTRACT,
THE ADMIRALTY CLAUSE OF THE CONSTITUTION BRINGS IT WITHIN THE FEDERAL
JURISDICTION.  PP. 313-314. 

(B)  THERE IS NO STATUTORY OR JUDICIALLY ESTABLISHED FEDERAL
ADMIRALTY RULE GOVERNING THE WARRANTIES HERE INVOLVED.  PP. 314-316. 

(C)  THIS COURT DECLINES TO ESTABLISH SUCH A RULE.  PP. 316, 319
320. 

(D)  IN THE ABSENCE OF SUCH A FEDERAL ADMIRALTY RULE, THIS CASE IS
GOVERNED BY APPROPRIATE STATE LAW.  PP. 316-319, 320-321. 

WILBURN BOAT CO. ET AL. V. FIREMAN'S FUND INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS CONCERNING THE POWER OF STATES TO REGULATE
THE TERMS AND CONDITIONS OF MARINE INSURANCE CONTRACTS. 

GLENN, FRANK AND HENRY WILBURN, MERCHANTS IN DENISON, TEXAS, BOUGHT A
SMALL HOUSEBOAT TO USE FOR COMMERCIAL CARRIAGE OF PASSENGERS ON NEARBY
LAKE TEXOMA, AN ARTIFICIAL INLAND LAKE BETWEEN TEXAS AND OKLAHOMA.  THE
RESPONDENT FIREMAN'S FUND INSURANCE COMPANY INSURED THE BOAT AGAINST
LOSS FROM FIRE AND OTHER PERILS.  WHILE MOORED ON THE LAKE THE BOAT WAS
DESTROYED BY FIRE.  FOLLOWING RESPONDENT'S REFUSAL TO PAY FOR THE LOSS,
THIS SUIT WAS BROUGHT IN A TEXAS STATE COURT BY THE WILBURNS AND BY
THEIR WHOLLY OWNED CORPORATION, THE WILBURN BOAT COMPANY, TO WHICH THE
BOAT'S LEGAL TITLE HAD BEEN TRANSFERRED.  AFTER REMOVAL OF THE CASE TO
THE UNITED STATES DISTRICT COURT BECAUSE OF DIVERSITY, RESPONDENT
ANSWERED ADMITTING ISSUANCE OF THE POLICY, PAYMENT OF PREMIUMS AND
DESTRUCTION OF THE BOAT.  LIABILITY WAS DENIED HOWEVER BECAUSE OF
ALLEGED BREACHES OF PRINTED POLICY TERMS OR "WARRANTIES" PROVIDING
THAT, WITHOUT WRITTEN CONSENT OF THE COMPANY, THE BOAT COULD NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HIRED OR CHARTERED AND MUST BE
USED SOLELY FOR PRIVATE PLEASURE PURPOSES.  (FN1)  THE CASE WAS
SUBMITTED ON STIPULATED FACTS SUPPLEMENTED BY ORAL TESTIMONY. 
CONTENDING THAT THE EVIDENCE SHOWED THE POLICY CONTRACT TO HAVE BEEN
MADE AND DELIVERED IN TEXAS, PETITIONERS URGED THAT ALL QUESTIONS
CONCERNING ALLEGED POLICY BREACHES WERE CONTROLLED BY TEXAS LAW.  IF
TEXAS LAW DOES GOVERN, THE POLICY PROVISION AGAINST PLEDGING MAY BE
WHOLLY INVALID.  (FN2) FURTHERMORE NO BREACH BY THE INSURED OF THE
PROVISIONS OF A FIRE INSURANCE POLICY IS A DEFENSE TO ANY SUIT UNDER
TEXAS LAW UNLESS THE BREACH CONTRIBUTES TO THE LOSS.  (FN3)  WITHOUT
FINDING WHETHER THE POLICY HAD BEEN MADE AND DELIVERED IN TEXAS, THE
COURT REFUSED TO GIVE THAT STATE'S LAW ANY EFFECT AT ALL, HOLDING THAT
SINCE A MARINE POLICY IS A MARITIME CONTRACT, FEDERAL ADMIRALTY LAW -
NOT STATE LAW - GOVERNED.  (FN4)  THE COURT WENT ON TO HOLD THAT THERE
IS AN ESTABLISHED ADMIRALTY RULE WHICH REQUIRES LITERAL FULFILLMENT OF
EVERY POLICY WARRANTY SO THAT ANY BREACH BARS RECOVERY, EVEN THOUGH A
LOSS WOULD HAVE HAPPENED HAD THE WARRANTY BEEN CARRIED OUT TO THE
LETTER.  FINDING THAT THE WILBURNS HAD BREACHED POLICY PROVISIONS
AGAINST TRANSFER, PLEDGE AND USE OF THE BOAT, (FN5) THE DISTRICT COURT
ENTERED JUDGMENT FOR THE INSURANCE COMPANY.  APPROVING THE DISTRICT
COURT'S ACTIONS IN ALL RESPECTS, THE COURT OF APPEALS AFFIRMED, SAYING
THAT "IT IS THE SETTLED DOCTRINE THAT A MARINE CONTRACT OF INSURANCE IS
'DERIVED FROM' IS 'GOVERNED BY', AND IS A 'PART OF' THE GENERAL
MARITIME LAW OF THE WORLD."  201 F.2D 833, 837.  IMPORTANCE OF THE
QUESTIONS INVOLVED PROMPTED US TO GRANT CERTIORARI.  347 U.S. 950. 
(FN6) 

SINCE THE INSURANCE POLICY HERE SUED ON IS A MARITIME CONTRACT THE
ADMIRALTY CLAUSE OF THE CONSTITUTION BRINGS IT WITHIN THE FEDERAL
JURISDICTION.  INSURANCE CO. V. DUNHAM, 11 WALL.  1.  BUT IT DOES NOT
FOLLOW, AS THE COURTS BELOW SEEMED TO THINK, THAT EVERY TERM IN EVERY
MARITIME CONTRACT CAN ONLY BE CONTROLLED BY SOME FEDERALLY DEFINED
ADMIRALTY RULE.  IN THE FIELD OF MARITIME CONTRACTS (FN7) AS IN THAT OF
MARITIME TORTS, (FN8) THE NATIONAL GOVERNMENT HAS LEFT MUCH REGULATORY
POWER IN THE STATES.  AS LATER DISCUSSED IN MORE DETAIL, THIS STATE
REGULATORY POWER, EXERCISED WITH FEDERAL CONSENT OR ACQUIESCENCE, HAS
ALWAYS BEEN PARTICULARLY BROAD IN RELATION TO INSURANCE COMPANIES AND
THE CONTRACTS THEY MAKE. 

CONGRESS HAS NOT TAKEN OVER THE REGULATION OF MARINE INSURANCE
CONTRACTS AND HAS NOT DEALT WITH THE EFFECT OF MARINE INSURANCE
WARRANTIES AT ALL; HENCE THERE IS NO POSSIBLE QUESTION HERE OF CONFLICT
BETWEEN STATE LAW AND ANY FEDERAL STATUTE.  BUT THIS DOES NOT ANSWER
THE QUESTIONS PRESENTED, SINCE IN THE ABSENCE OF CONTROLLING ACTS OF
CONGRESS THIS COURT HAS FASHIONED A LARGE PART OF THE EXISTING RULES
THAT GOVERN ADMIRALTY.  AND STATES CAN NO MORE OVERRIDE SUCH JUDICIAL
RULES VALIDLY FASHIONED THAN THEY CAN OVERRIDE ACTS OF CONGRESS.  SEE,
E.G., GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239.  CONSEQUENTLY THE
CRUCIAL QUESTIONS IN THIS CASE NARROW DOWN TO THESE:  (1) IS THERE A
JUDICIALLY ESTABLISHED FEDERAL ADMIRALTY RULE GOVERNING THESE
WARRANTIES?  (2) IF NOT, SHOULD WE FASHION ONE? 

THE ONLY DECISION OF THIS COURT RELIED ON BY THE COURT OF APPEALS TO
SUPPORT ITS HOLDING THAT THERE IS AN ESTABLISHED ADMIRALTY RULE
REQUIRING STRICT FULFILLMENT OF MARINE INSURANCE WARRANTIES WAS
IMPERIAL FIRE INSURANCE CO. V. COOS COUNTY, 151 U.S. 452.  THERE,
BECAUSE OF A BREACH OF WARRANTY, AN INSURANCE COMPANY WAS RELIEVED OF
LIABILITY FOR LOSS OF A COURTHOUSE BY FIRE, AND THIS COURT SAID IT WAS
IMMATERIAL WHETHER THE BREACH CONTRIBUTED TO THE LOSS.  BUT NO QUESTION
OF MARINE INSURANCE WAS REMOTELY INVOLVED NOR WAS THERE ANY RELIANCE ON
A MARINE INSURANCE RULE.  WRITING ITS OWN "GENERAL COMMERCIAL LAW," AS
WAS THE CUSTOM IN DIVERSITY CASES PRIOR TO ERIE R. CO. V. TOMPKINS, 304
U.S. 64, THIS COURT IN THE COOS COUNTY CASE SIMPLY FOLLOWED A GENERAL
DOCTRINE COMMONLY APPLIED TO WARRANTIES IN ALL TYPES OF INSURANCE. 
(FN9)  A MERE CURSORY EXAMINATION OF THE CASES, STATE AND FEDERAL, WILL
DISCLOSE THAT THROUGH THE YEARS THIS COMMON-LAW DOCTRINE, WHEN
ACCEPTED, HAS BEEN TREATED NOT AS AN ADMIRALTY RULE BUT AS A GENERAL
WARRANTY RULE APPLICABLE TO MANY TYPES OF CONTRACTS INCLUDING MARINE
AND OTHER INSURANCE.  (FN10)  THERE ARE VERY FEW FEDERAL CASES ON
MARINE INSURANCE IN WHICH THE STRICT BREACH OF WARRANTY RULE HAS EVEN
BEEN CONSIDERED.  AND ONLY TWO CIRCUITS APPEAR TO HAVE THOUGHT OF THE
RULE AS A PART OF THE GENERAL ADMIRALTY LAW.  (FN11)  ON THE CONTRARY,
OTHER CIRCUIT COURT DECISIONS, INCLUDING THE ONES RELIED ON IN THOSE
FEW CASES HOLDING THE RULE TO BE ONE OF FEDERAL ADMIRALTY, SEEM TO
INDICATE THAT STATE LAW WAS FOLLOWED IN APPLYING THE RULE (FN12) OR
THAT THE QUESTION WAS DECIDED AS ONE OF "GENERAL COMMERCIAL LAW," A
UNIFORM PRACTICE DURING THE ERA OF SWIFT V. TYSON, 16 PET. 1.  (FN13)
THIS COURT DID SAY IN ONE MARINE INSURANCE CASE THAT WARRANTIES "MUST
BE STRICTLY AND LITERALLY PERFORMED."  HAZARD'S ADMINISTRATOR V. NEW
ENGLAND MARINE INS.  CO., 8 PET. 557, 580.  BUT THERE IS NOT THE
SLIGHTEST INDICATION THAT THIS STATEMENT REFERRED TO A FEDERAL
ADMIRALTY RULE AND THE COURT IN FACT EXPRESSLY FOLLOWED AND APPLIED
MASSACHUSETTS LAW TO DECIDE ANOTHER QUESTION IN THAT VERY CASE. 
WHATEVER THE ORIGIN OF THE "LITERAL PERFORMANCE" RULE MAY BE, (FN14) WE
THINK IT PLAIN THAT IT HAS NOT BEEN JUDICIALLY ESTABLISHED AS PART OF
THE BODY OF FEDERAL ADMIRALTY LAW IN THIS COUNTRY.  THEREFORE, THE
SCOPE AND VALIDITY OF THE POLICY PROVISIONS HERE INVOLVED AND THE
CONSEQUENCES OF BREACHING THEM CAN ONLY BE DETERMINED BY STATE LAW
(FN15) UNLESS WE ARE NOW PREPARED TO FASHION CONTROLLING FEDERAL
RULES. 

THE WHOLE JUDICIAL AND LEGISLATIVE HISTORY OF INSURANCE REGULATION IN
THE UNITED STATES WARNS US AGAINST THE JUDICIAL CREATION OF ADMIRALTY
RULES TO GOVERN MARINE POLICY TERMS AND WARRANTIES.  THE CONTROL OF ALL
TYPES OF INSURANCE COMPANIES AND CONTRACTS HAS BEEN PRIMARILY A STATE
FUNCTION SINCE THE STATES CAME INTO BEING.  IN 1869, THIS COURT HELD IN
PAUL V. VIRGINIA, 8 WALL.  168, THAT STATES POSSESSED REGULATORY POWER
OVER THE INSURANCE BUSINESS AND STRONGLY INDICATED THAT THE NATIONAL
GOVERNMENT DID NOT HAVE THAT POWER.  THREE YEARS LATER, IT WAS FIRST
AUTHORITATIVELY DECIDED IN INSURANCE CO. V. DUNHAM, SUPRA, THAT FEDERAL
COURTS COULD EXERCISE "JURISDICTION" OVER MARINE INSURANCE CONTRACTS. 
IN 1894, YEARS AFTER THE DUNHAM HOLDING, THIS COURT APPLIED THE
DOCTRINE OF PAUL V. VIRGINIA AND HELD THAT STATES COULD REGULATE MARINE
INSURANCE THE SAME AS ANY OTHER INSURANCE.  HOOPER V. CALIFORNIA, 155
U.S. 648.  LATER, THE POWER OF STATES TO REGULATE MARINE INSURANCE WAS
REAFFIRMED IN NUTTING V. MASSACHUSETTS, 183 U.S. 553.  THIS
CONSTITUTIONAL DOCTRINE CARRYING IMPLICATIONS OF EXCLUSIVE STATE POWER
TO REGULATE ALL TYPES OF INSURANCE CONTRACTS REMAINED UNTIL 1944 WHEN
THIS COURT DECIDED UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN.,
332 U.S. 533.  THUS IT IS CLEAR THAT AT LEAST UNTIL 1944 THIS COURT HAS
ALWAYS TREATED MARINE INSURANCE CONTRACTS, LIKE ALL OTHERS, AS SUBJECT
TO STATE CONTROL.  (FN16)  THE VAST AMOUNT OF INSURANCE LITIGATION IN
STATE COURTS THROUGHOUT OUR HISTORY ALSO BEARS WITNESS THAT UNTIL
RECENTLY STATE LEGISLATURES AND STATE COURTS HAVE TREATED MARINE
INSURANCE AS CONTOLLED BY STATE LAW TO THE SAME EXTENT AS ALL OTHER
INSURANCE.  (FN17)  THIS IS APTLY ILLUSTRATED BY A MASSACHUSETTS CASE
DECIDED IN 1893 WHICH EXPRESSLY HELD A GENERALLY WORDED STATUTE OF THAT
STATE RELATING TO WARRANTIES TO BE APPLICABLE TO MARINE INSURANCE
COMPANIES EQUALLY WITH OTHER INSURANCE COMPANIES.  DURKEE V. INDIA
MUTUAL INS. CO., 159 MASS. 514, 34 N.E. 1133. 

NOT ONLY COURTS, BUT CONGRESS, INSURANCE COMPANIES, AND THOSE INSURED
HAVE ALL ACTED ON THE ASSUMPTION THAT STATES CAN REGULATE MARINE
INSURANCE.  IN THE MERCHANT MARINE ACT OF 1920, CONGRESS RECOGNIZED
THAT MARINE INSURANCE COMPANIES WERE OPERATING UNDER STATE LAWS. 
(FN18)  THEN, FOLLOWING A THREE-YEAR STUDY OF MARINE INSURANCE,
CONGRESS IN 1922 PASSED A LAW REGULATING ALL TYPES OF INSURANCE IN THE
DISTRICT OF COLUMBIA.  (FN19)  THIS ENACTMENT GENERALLY REFERRED TO AS
THE DISTRICT OF COLUMBIA MODEL MARINE INSURANCE ACT, HAD THE BACKING OF
INSURANCE COMPANIES GENERALLY AND WAS HAILED AS A MODEL WHICH IT WAS
HOPED STATES WOULD COPY.  BECAUSE OF A PROVISION IN THE BILL AS OFFERED
RELATING TO "POLICY FORMS AND CONDITIONS," THE BILL WAS FIRST
CRITICIZED BY A NATIONAL ASSOCIATION OF SHIPOWNERS BUT WAS LATER
APPROVED AFTER THE CRITICIZED PROVISION WAS REMOVED.  (FN20)  HEARINGS
ON THE BILL MAKE IT PLAIN THAT SHIPOWNERS AND MARINE INSURANCE
COMPANIES RECOGNIZED THAT MARINE INSURANCE WAS THEN, AND WOULD CONTINUE
TO BE, REGULATED BY THE STATES.  THIS MODEL BILL WHICH IT WAS HOPED
WOULD SERVE AS A PATTERN FOR STATES TO FOLLOW WAS PROMPTED IN PART BY
WIDESPREAD DOUBT CREATED BY PAUL V. VIRGINIA AND HOOPER V. CALIFORNIA
THAT THE FEDERAL GOVERNMENT COULD ENTER THE FIELD AT ALL.  (FN21)
AGAIN IN 1935 MARINE INSURANCE WAS DISCUSSED IN CONGRESSIONAL HEARINGS
IN CONNECTION WITH THE LIMITATION OF LIABILITY ACT.  49 STAT. 1479, 46
U.S.C. SECS. 181-196.  THERE REPRESENTATIVES OF SHIPOWNERS STRONGLY
OPPOSED REGULATION OF MARINE INSURANCE BY FEDERAL AUTHORITY, ARGUING
THAT IT WAS BETTER FOR THE STATES TO RETAIN THEIR REGULATORY FUNCTION. 
(FN22)  FINALLY, IN 1944 AND 1945, CONGRESS HAD BEFORE IT FOR
CONSIDERATION BILLS SPECIFICALLY DESIGNED TO AUTHORIZE STATES TO
CONTINUE TO REGULATE THE BUSINESS OF INSURANCE.  AT THE VERY BEGINNING
OF EXTENSIVE HEARINGS ON THESE BILLS THE COMMITTEE'S ATTENTION WAS
DIRECTED TO THAT PART OF THIS COURT'S OPINION IN HOOPER V. CALIFORNIA
DECIDING THAT STATES COULD REGULATE THE MARINE INSURANCE BUSINESS THE
SAME AS THEY COULD REGULATE OTHER KINDS OF INSURANCE BUSINESSES. 
(FN23)  AGAIN AND AGAIN THE COMMITTEE WAS REMINDED OF THE PAUL AND
HOOPER CASES WHICH TOGETHER SHOWED THAT STATES HAD PREVIOUSLY BEEN
REGULATING MARINE INSURANCE AS WELL AS ALL OTHER TYPES.  PASSAGE OF THE
BILL FOLLOWED UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., SUPRA,
HOLDING THAT, DESPITE THE CONSTITUTIONAL DOCTRINE EMBODIED IN THE PAUL
V. VIRGINIA LINE OF CASES, CONGRESS HAD POWER UNDER THE CONSTITUTION TO
REGULATE INTERSTATE INSURANCE TRANSACTIONS.  IN THE SOUTH-EASTERN CASE,
HOWEVER, ALL THE OPINIONS HAD EMPHASIZED THE HISTORICAL FACT THAT
STATES HAD ALWAYS BEEN FREE TO REGULATE INSURANCE.  THE MEASURE
CONGRESS PASSED SHORTLY THEREAFTER, KNOWN AS THE MCCARRAN ACT, WAS
DESIGNED TO ASSURE THAT EXISTING STATE POWER TO REGULATE INSURANCE
WOULD CONTINUE.  ACCORDINGLY, THE ACT CONTAINS A BROAD DECLARATION OF
CONGRESSIONAL POLICY THAT THE CONTINUED REGULATION OF INSURANCE BY THE
STATES IS IN THE PUBLIC INTEREST, AND THAT SILENCE ON THE PART OF
CONGRESS SHOULD NOT BE CONSTRUED TO IMPOSE ANY BARRIER TO CONTINUED
REGULATION OF INSURANCE BY THE STATES.  (FN24) 

THE HEARINGS ON THE MCCARRAN ACT REVEAL THE COMPLEXITIES AND
DIFFICULTIES OF AN ATTEMPT TO UNIFY INSURANCE LAW ON A NATIONWIDE
BASIS, EVEN BY CONGRESS.  COURTS WOULD FIND SUCH A TASK FAR MORE
DIFFICULT.  CONGRESS IN PASSING LAWS IS NOT LIMITED TO THE NARROW
FACTUAL SITUATION OF A PARTICULAR CONTROVERSY AS COURTS ARE IN DECIDING
LAWSUITS.  AND CONGRESS COULD REPLACE THE PRESENT FUNCTIONING STATE
REGULATIONS OF MARINE INSURANCE BY ONE COMPREHENSIVE ACT.  COURTS,
HOWEVER, COULD ONLY DO IT PIECEMEAL, ON A CASE-BY-CASE BASIS.  SUCH A
CREEPING APPROACH WOULD RESULT IN LEAVING MARINE INSURANCE LARGELY
UNREGULATED FOR YEARS TO COME.  (FN25) 

IN THIS VERY CASE, SHOULD WE ATTEMPT TO FASHION AN ADMIRALTY RULE
GOVERNING POLICY PROVISIONS, WE WOULD AT ONCE BE FACED WITH THE
DIFFICULTY OF DETERMINING WHAT SHOULD BE THE CONSEQUENCES OF BREACHES. 
WE COULD ADOPT THE OLD COMMON-LAW DOCTRINE OF FORFEITING ALL RIGHT OF
RECOVERY IN THE ABSENCE OF STRICT AND LITERAL PERFORMANCE OF
WARRANTIES, BUT THAT IS A HARSH RULE.  (FN26)  MOST STATES, DEEMING THE
OLD RULE A BREEDER OF WRONG AND INJUSTICE, HAVE ABANDONED IT IN WHOLE
OR IN PART.  BUT THAT HAS LEFT OPEN THE QUESTION OF WHAT KIND OF NEW
RULE COULD BE SUBSTITUTED THAT WOULD BE FAIR BOTH TO INSURANCE
COMPANIES AND POLICYHOLDERS.  OUT OF THEIR ABUNDANT BROAD EXPERIENCE IN
REGULATING THE INSURANCE BUSINESS, SOME STATE LEGISLATURES HAVE ADOPTED
ONE KIND OF NEW RULE AND SOME ANOTHER.  (FN27)  SOME STATES FOR EXAMPLE
HAVE DENIED COMPANIES THE RIGHT TO FORFEIT POLICIES IN THE ABSENCE OF
AN INSURED'S BAD FAITH OR FRAUD.  OTHER STATES HAVE THOUGHT THIS KIND
OF RULE INADEQUATE TO STAMP OUT FORFEITURE PRACTICES DEEMED EVIL.  THE
RESULT, AS THIS COURT HAS POINTED OUT, HAS BEEN STATE STATUTES LIKE
THAT OF TEXAS WHICH "GO TO THE ROOT OF THE EVIL" AND FORBID FORFEITURE
FOR AN INSURED'S BREACH OF POLICY TERMS UNLESS THE BREACH ACTUALLY
CONTRIBUTES TO BRING ABOUT THE LOSS INSURED AGAINST.  NORTHWESTERN
NATIONAL LIFE INS. CO. V. RIGGS, 203 U.S. 243, 253-254.  THUS THERE ARE
A NUMBER OF OTHER POSSIBLE RULES FROM WHICH THIS COURT COULD FASHION
ONE FOR ADMIRALTY.  BUT SUCH A CHOICE INVOLVES VARIED POLICY
CONSIDERATIONS AND IS OBVIOUSLY ONE WHICH CONGRESS IS PECULIARLY SUITED
TO MAKE.  AND WE DECLINE TO UNDERTAKE THE TASK.  SEE HALCYON LINES V.
HAENN SHIP CORP., 342 U.S. 282, 285. 

UNDER OUR PRESENT SYSTEM OF DIVERSE STATE REGULATIONS, WHICH IS AS
OLD AS THE UNION, THE INSURANCE BUSINESS HAS BECOME ONE OF THE GREAT
ENTERPRISES OF THE NATION.  CONGRESS HAS BEEN EXCEEDINGLY CAUTIOUS
ABOUT DISTURBING THIS SYSTEM, EVEN AS TO MARINE INSURANCE WHERE
CONGRESSIONAL POWER IS UNDOUBTED.  (FN28)  WE, LIKE CONGRESS, LEAVE THE
REGULATION OF MARINE INSURANCE WHERE IT HAS BEEN - WITH THE STATES. 
(FN29) 

THE JUDGMENTS OF THE COURT OF APPEALS AND THE DISTRICT COURT ARE
REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR A TRIAL
UNDER APPROPRIATE STATE LAW.  IT IS SO ORDERED. 

FN1  "IT IS ALSO AGREED THAT THIS INSURANCE SHALL BE VOID IN CASE
THIS POLICY OR THE INTEREST INSURED THEREBY SHALL BE SOLD, ASSIGNED,
TRANSFERRED OR PLEDGED WITHOUT THE PREVIOUS CONSENT IN WRITING OF THE
ASSURERS." 

"WARRANTED BY THE ASSURED THAT THE WITHIN NAMED VESSEL SHALL BE USED
SOLELY FOR PRIVATE PLEASURE PURPOSES DURING THE CURRENCY OF THIS POLICY
AND SHALL NOT BE HIRED OR CHARTERED UNLESS PERMISSION IS GRANTED BY
ENDORSEMENT HEREON." 

FN2  VERNON'S REV. CIV. STAT., 1936, ART. 4890:  "ANY PROVISION IN
ANY POLICY OF INSURANCE ISSUED BY ANY COMPANY SUBJECT TO THE PROVISIONS
OF THIS LAW TO THE EFFECT THAT IF SAID PROPERTY IS ENCUMBERED BY A LIEN
OF ANY CHARACTER OR SHALL AFTER THE ISSUANCE OF SUCH POLICY BECOME
ENCUMBERED BY A LIEN OF ANY CHARACTER THEN SUCH ENCUMBRANCE SHALL
RENDER SUCH POLICY VOID SHALL BE OF NO FORCE AND EFFECT.  ANY SUCH
PROVISION WITHIN OR PLACED UPON ANY SUCH POLICY SHALL BE NULL AND
VOID." 

FN3  VERNON'S REV. CIV. STAT., 1936, ART. 4930:  "NO BREACH OR
VIOLATION BY THE INSURED OF ANY WARRANTY, CONDITION OR PROVISION OF ANY
FIRE INSURANCE POLICY, CONTRACT OF INSURANCE, OR APPLICATION THEREFOR,
UPON PERSONAL PROPERTY, SHALL RENDER VOID THE POLICY OR CONTRACT, OR
CONSTITUTE A DEFENSE TO A SUIT FOR LOSS THEREON, UNLESS SUCH BREACH OR
VIOLATION CONTRIBUTED TO BRING ABOUT THE DESTRUCTION OF THE PROPERTY." 

FN4  THE DISTRICT COURT SAID:  "AFTER MUCH CONSIDERATION OF THE ABOVE
MATTER, I AM OF THE OPINION THAT THE POLICY INVOLVED HERE IS A MARITIME
CONTRACT AND THEREFORE GOVERNED BY THE GENERAL ADMIRALTY LAW AND NOT BY
THE LAW OF TEXAS, SINCE THE POLICY COVERED THE VESSEL ON NAVIGABLE
WATERS OF THE UNITED STATES, WITHOUT AS WELL AS WITHIN THE STATE OF
TEXAS, AND I FIND THAT THE WATERS OF LAKE TEXOMA ARE NAVIGABLE WATERS
OF THE UNITED STATES." 

FN5  THERE WAS EVIDENCE THAT PRIOR TO THE LOSS THE COMPANY HAD NOTICE
THAT THE BOAT WAS CONSTANTLY USED FOR COMMERCIAL PURPOSES.  BECAUSE OF
THIS PETITIONERS URGED THAT THE COMPANY HAD WAIVED THE POLICY PROVISION
AGAINST SUCH USE AND WAS ALSO ESTOPPED TO PLEAD IT.  QUESTIONS INVOLVED
IN THESE CONTENTIONS REMAIN WHOLLY OPEN FOR CONSIDERATION BY THE
DISTRICT COURT IN ANY NEW TRIAL THAT MAY BE HAD. 

FN6  THE COURT OF APPEALS ASSUMED THAT IF ANY STATE LAW APPLIED IT
WAS THAT OF TEXAS.  THE QUESTION OF THE APPROPRIATE STATE LAW IS NOT
BEFORE US, HOWEVER, AND WE EXPRESS NO OPINION ON THAT ASPECT OF THE
CASE.  CF. WATSON V. EMPLOYERS LIABILITY ASSUR.  CORP., 348 U.S. 66. 
LIKEWISE WE ARE NOT CONCERNED AT THIS TIME WITH WHETHER THE DISTRICT
COURT'S HOLDINGS THAT THE WILBURNS' TRANSACTIONS CONSTITUTED BREACHES,
AND THAT THE BREACHES HAD NOT BEEN WAIVED BY THE COMPANY, WOULD BE
CORRECT HOLDINGS UNDER STATE LAW. 

FN7  SEE, E.G., THE LOTTAWANNA, 21 WALL.  558; MADRUGA V. SUPERIOR
COURT, 346 U.S. 556.  BUT CF. UNION FISH CO. V. ERICKSON, 248 U.S.
308. 

FN8  SEE, E.G., JUST V. CHAMBERS, 312 U.S. 383; THE HAMILTON, 207
U.S. 398.  BUT CF. POPE & TALBOT V. HAWN, 346 U.S. 406; BUTLER V.
BOSTON & SAVANNAH S.S. CO., 130 U.S. 527, 557-558. 

FN9  SEE, E.G., PHOENIX LIFE INS. CO. V. RADDIN, 120 U.S. 183, 189
190. 

FN10  SEE, E.G., CASES COLLECTED IN 87 A.L.R. 1074; L.R.A. 1918B,
429; 34 L.R.A. (N.S.)  563; 11 L.R.A. (N.S.)  981; 29 AM. JUR.,
INSURANCE, SEC. 529 ET SEQ. 

FN11  AETNA INS. CO. V. HOUSTON OIL & TRANSPORT CO., 49 F.2D 121
(1931); HOME INS. CO. V. CICONETT, 179 F.2D 892 (1950). 

FN12  GELB V. AUTOMOBILE INS. CO., 168 F.2D 774; LEVINE V. AETNA INS.
CO., 139 F.2D 217; SHAMROCK TOWING CO. V. AMERICAN INS. CO., 9 F.2D
57.  SEE ALSO UNITED STATES GYPSUM CO. V. INSURANCE CO. OF NORTH
AMERICA, 19 F. SUPP. 767.  SEE GOULDER, EVOLUTION OF THE ADMIRALTY LAW
IN AMERICA, 5 AM. LAWYER 314. 

FN13  E.G., CANTON INS. OFFICE, LTD. V. INDEPENDENT TRANSP.  CO., 217
F. 213; WHEALTON PACKING CO. V. AETNA INS. CO., 185 F. 108; ROBINSON V.
HOME INS. CO., 73 F.2D 3; FIDELITY-PHENIX INS. CO. V. CHICAGO TITLE &
TRUST CO., 12 F.2D 573. 

FN14  SEE VANCE, THE HISTORY OF THE DEVELOPMENT OF THE WARRANTY IN
INSURANCE LAW, 20 YALE L.J. 523; PATTERSON, WARRANTIES IN INSURANCE
LAW, 34 COL. L. REV. 595. 

FN15  THE HAMILTON, 207 U.S. 398, AND CASES THERE CITED. 

FN16  FOR CASES SUBSEQUENT TO 1944 HOLDING THAT STATES COULD REGULATE
INSURANCE, SEE ROBERTSON V. CALIFORNIA, 328 U.S. 440; PRUDENTIAL INS.
CO. V. BENJAMIN, 328 U.S. 408. 

FN17  SEE CASES COLLECTED IN 9 L. ED. 1123; 22 L. ED. 216; 42 L. ED.
113; 9 A.L.R. 1314; 13 A.L.R. 893; 43 A.L.R. 222; L.R.A. 1917C, 730,
L.R.A. 1916F, 1171; 10 L.R.A. (N.S.)  742; 36 AM. ST. REP. 854; 29 AM.
JUR., INSURANCE, SECS. 227-237, 758-785, 1032-1051, 1198-1224; NOTE 10,
SUPRA. 

FN18  41 STAT. 1000, 46 U.S.C. SEC. 885(A)(2). 

FN19  42 STAT. 408; D.C. CODE, 1951, SEC. 35-1101 ET SEQ. 

FN20  HEARINGS BEFORE SENATE COMMITTEE ON COMMERCE ON S. 210, 67TH
CONG., 1ST SESS. 111, 112, 213. 

FN21  ID., AT 20-30.  SEE ALSO S. REP. NO. 228, 67TH CONG., 1ST
SESS.; H.R. REP. NO. 582, 67TH CONG., 2D SESS. 

FN22  HEARINGS BEFORE HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES ON H.R. 4550, 74TH CONG., 1ST SESS. 124 ET SEQ. 

FN23  JOINT HEARING BEFORE THE SUBCOMMITTEES OF THE COMMITTEES ON THE
JUDICIARY ON S. 1362, H.R. 3269, H.R. 3270, 78TH CONG., 1ST SESS. 7. 
ATTENTION WAS ALSO CALLED TO NEW YORK LIFE INS. CO. V. CRAVENS, 178
U.S. 389, AND OTHER CASES WHICH HELD THAT STATES HAD POWER TO BAR
POLICY PROVISIONS DEEMED CONTRARY TO THE PUBLIC INTEREST AND COMPEL
INCLUSION OF PROVISIONS DEEMED TO BE IN THE PUBLIC WELFARE. 

FN24  59 STAT. 33, 15 U.S.C. SEC. 1011. 

FN25  FOR THE MULTITUDINOUS INSURANCE REGULATIONS STATES HAVE FOUND
NECESSARY AFTER LONG EXPERIENCE, SEE, E.G., MCKINNEY'S N.Y. LAWS,
INSURANCE LAW; LA. REV. STAT., 1950, TITLE 22; VERNON'S TEX. REV. CIV.
STAT., 1936, ARTS. 4679-5068B. 

FN26  FOR CRITICISMS OF THE RULE SEE NOTE 14, SUPRA. 

FN27  4 COUCH, CYCLOPEDIA OF INSURANCE LAW, SEC. 819 ET SEQ.; 12
APPLEMAN, INSURANCE LAW AND PRACTICE, SEC. 7251 ET SEQ. FOR INSTANCES
WHERE STATE COURTS HAVE RELAXED THE RULE OF THEIR OWN ACCORD SEE 4
APPLEMAN, INSURANCE LAW AND PRACTICE, SEC. 2695; 12 ID., SEC. 7354. 

FN28  CONGRESS HAS MADE CERTAIN PROVISIONS IN CONNECTION WITH WAR
RISK INSURANCE.  64 STAT.  773, 46 U.S.C. SECS. 1281-1294.  AND TO A
VERY LIMITED EXTENT IT HAS AUTHORIZED GOVERNMENTAL AGENCIES TO REGULATE
POLICIES AND INSURANCE COMPANIES WHICH ARE INSURING VESSELS IN WHICH
THE GOVERNMENT HAS SOME INTEREST.  41 STAT. 992, 46 U.S.C. SEC. 868; 52
STAT. 969, 46 U.S.C.  SECS. 1271-1279; 55 STAT. 243, 50 U.S.C. APP.
SEC. 1273. 

FN29  IT IS FAINTLY CONTENDED THAT THE FEDERAL CONSTITUTION FORBIDS
STATES TO REGULATE MARINE INSURANCE, EVEN WHERE CONGRESS ACQUIESCES OR
EXPRESSLY CONSENTS.  THIS CONTENTION IS SO LACKING IN MERIT THAT IT
NEED NOT BE DISCUSSED. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT. 

THIS CASE CONCERNS A MARINE INSURANCE POLICY COVERING A SMALL
HOUSEBOAT YACHT, INAPPROPRIATELY NAMED THE WANDERER, PLYING THE WATERS
OF LAKE TEXOMA, AN ARTIFICIAL INLAND LAKE BETWEEN TEXAS AND OKLAHOMA. 
THE COVERAGE OF THE POLICY WAS SPECIFICALLY RESTRICTED TO THE
WANDERER'S TRIP TO AND USE ON THAT LAKE "SOLELY FOR PRIVATE PLEASURE
PURPOSES."*  AFTER THE WANDERER WAS DESTROYED BY FIRE WHILE LYING IDLE
ON LAKE TEXOMA, IT WAS DISCOVERED THAT CERTAIN WARRANTIES OF THE
INSURANCE POLICY HAD BEEN IGNORED BY PETITIONER.  UNDER A UNIFORM RULE
OF ADMIRALTY LAW GOVERNING BREACH OF SUCH WARRANTIES, PETITIONER
PROBABLY WOULD BE UNABLE TO RECOVER ON THE POLICY.  TEXAS STATUTE LAW,
HOWEVER, MIGHT EXCUSE THE BREACHES OF WARRANTY, ALTHOUGH THIS IS BY NO
MEANS CLEAR.  OUR PROBLEM IS WHETHER THIS SITUATION - INVOLVING A
MARINE POLICY SUCH AS IS THE BASIS OF LITIGATION - CALLS FOR A UNIFORM
RULE THROUGHOUT THE COUNTRY APPLICABLE TO BREACHES OF WARRANTY OF ALL
SIMILAR MARINE INSURANCE CONTRACTS. 

*THE YACHT HAD BEEN PURCHASED BY THE WILBURNS WHILE AT GREENVILLE,
MISSISSIPPI.  THE POLICY HAD COVERED PORT RISKS AT THE GREENVILLE YACHT
BASIN, THE RIVER VOYAGE TO DENISON, TEXAS, AND THE OVERLAND "SKID"
AROUND THE DAM ONTO THE LAKE.  THE POLICY CONTEMPLATED THAT THE
WANDERER WOULD BE "LOCKED THROUGH TO TEXOMA LAKE," BUT THERE ARE NO
LOCKS PERMITTING WATER PASSAGE ONTO THE LAKE. 

THERE IS NO DOUBT THAT AS TO SOME MATTERS AFFECTING MARITIME AFFAIRS
THE STATES ARE EXCLUDED FROM INDULGING IN VARIANT STATE POLICIES. 
E.G., CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372; THE LOTTAWANNA,
21 WALL.  558.  EQUALLY, THERE IS NO DOUBT THAT SOME MATTERS ARE SO
PREDOMINANTLY RESTRICTED IN THE RANGE OF THEIR SIGNIFICANCE THAT A
UNIFORM ADMIRALTY RULE NEED NOT BE RECOGNIZED OR FASHIONED.  E.G.,
MADRUGA V. SUPERIOR COURT, 346 U.S. 556; C.J. HENDRY CO. V. MOORE, 318
U.S. 133; THE HAMILTON, 207 U.S. 398.  THEREFORE THE QUESTION, AND THE
ONLY QUESTION NOW TO BE DECIDED, IS WHETHER THE DEMANDS OF UNIFORMITY
RELEVANT TO MARITIME LAW REQUIRE THAT MARINE INSURANCE ON A HOUSEBOAT
YACHT BROUGHT TO LAKE TEXOMA FOR PRIVATE RECREATION SHOULD BE SUBJECT
TO THE SAME RULES OF LAW AS MARINE INSURANCE ON A HOUSEBOAT YACHT
"CONFINED," AFTER ARRIVAL, TO THE WATERS OF LAKE TAHOE OR LAKE
CHAMPLAIN.  THE PROVISION OF THE POLICY WHEREBY THE INSURED WARRANTED
"THAT THE VESSEL BE CONFINED TO LAKE TEXOMA" CONVEYS THE EMPHASIS OF
THE SITUATION - THE ESSENTIALLY LOCALIZED INCIDENCE OF THE TRANSACTION
DESPITE THE INTERSTATE ROUTE FOLLOWED IN REACHING THE CIRCUMSCRIBED
RADIUS WITHIN WHICH THE YACHT WAS TO MOVE.  IT IS REASONABLE TO
CONCLUDE THAT THE INTERESTS CONCERNED WITH SHIPPING IN ITS NATIONAL AND
INTERNATIONAL ASPECTS ARE SUBSTANTIALLY UNCONCERNED WITH THE RULES OF
LAW TO BE APPLIED TO SUCH LIMITED SITUATIONS.  I JOIN IN A RESULT
RESTRICTED WITHIN THIS COMPASS. 

UNFORTUNATELY, FOR REASONS THAT I DO NOT APPRECIATE, THE COURT'S
OPINION GOES BEYOND THE NEEDS OF THE PROBLEM BEFORE IT.  UNLESS I
WHOLLY MISCONCEIVE THAT OPINION, ITS LANGUAGE WOULD BE INVOKED WHEN
CASES SO DECISIVELY DIFFERENT IN DEGREE AS TO BE DIFFERENT IN KIND COME
BEFORE THIS COURT.  IT SEEMS DIRECTED WITH EQUAL FORCE TO OCEAN-GOING
VESSELS IN INTERNATIONAL MARITIME TRADE, AS WELL AS COASTAL,
INTERCOASTAL AND RIVER COMMERCE.  IS IT TO BE ASSUMED THAT WERE THE
QUEEN MARY, ON A WORLD PLEASURE CRUISE, TO TOUCH AT NEW YORK CITY, NEW
ORLEANS AND GALVESTON, A LLOYD'S POLICY COVERING THE VOYAGE WOULD BE
SUBJECTED TO THE VARYING INSURANCE LAWS OF NEW YORK, LOUISIANA AND
TEXAS?  SUCH AN ASSUMPTION, I AM CONFIDENT, WOULD NOT PREVAIL WERE
DECISION NECESSARY.  THE BUSINESS OF MARINE INSURANCE OFTEN MAY BE SO
RELATED TO THE SUCCESS OF MANY MANIFESTATIONS OF COMMERCIAL MARITIME
ENDEAVOR AS TO DEMAND APPLICATION OF A UNIFORM RULE OF LAW DESIGNED TO
ELIMINATE THE VAGARIES OF STATE LAW AND TO KEEP HARMONY WITH THE MARINE
INSURANCE LAWS OF OTHER GREAT MARITIME POWERS.  SEE QUEEN INS. CO. V.
GLOBE INS. CO., 263 U.S. 487, 493; CALMAR STEAMSHIP CORP. V. SCOTT, 345
U.S. 427, 442-443.  IT CANNOT BE THAT BY THIS DECISION THE COURT MEANS
SUDDENLY TO JETTISON THE WHOLE PAST OF THE ADMIRALTY PROVISION OF
ARTICLE III AND TO RENOUNCE REQUIREMENTS FOR NATIONWIDE MARITIME
UNIFORMITY, EXCEPT INSOFAR AS CONGRESS HAS SPECIFICALLY ENACTED THEM,
IN THE FIELD OF MARINE INSURANCE. 

IT IS APPROPRIATE TO RECALL THAT THE PREPONDERANT BODY OF MARITIME
LAW COMES FROM THIS COURT AND NOT FROM CONGRESS.  JUDICIAL ENFORCEMENT
OF NATIONWIDE RULES REGARDING MARINE INSURANCE IS, AS MY BROTHER REED
COGENTLY SHOWS, DEEPLY ROOTED IN HISTORY.  WHAT REASON IS THERE FOR
ABRUPTLY TURNING OVER, PENDING ACTION BY CONGRESS, TO THE CRAZY-QUILT
REGULATION OF THE DIFFERENT STATES WHAT SO LONG HAS BEEN THE BUSINESS
OF THE COURTS? 

AS IS TRUE OF OTHER MARITIME INTERESTS, HOWEVER, THE DEMAND FOR
UNIFORMITY IS NOT INFLEXIBLE AND DOES NOT PRECLUDE THE BALANCING OF THE
COMPETING CLAIMS OF STATE, NATIONAL AND INTERNATIONAL INTERESTS.  THE
PROCESS AND SOME OF THE RELEVANT CONSIDERATIONS HERE ARE NOT UNLIKE
THOSE INVOLVED WHEN THE QUESTION IS WHETHER A STATE, IN THE ABSENCE OF
CONGRESSIONAL ACTION, MAY REGULATE SOME MATTERS EVEN THOUGH ASPECTS OF
INTERSTATE COMMERCE ARE AFFECTED.  IN REJECTING ABDICATION OF ALL
RESPONSIBILITY BY THIS COURT FOR UNIFORMITIES IN MARINE INSURANCE AND
ITS COMPLETE SURRENDER TO THE STATES, ONE IS NOT REQUIRED TO EMBRACE
ANOTHER ABSOLUTE, COMPLETE ABSORPTION BY THIS COURT OF THE FIELD OF
MARINE INSURANCE AND ENTIRE EXCLUSION OF THE STATES.  IT IS NOT
NECESSARY TO ASSERT THAT UNIFORMITY, IF IT BE REQUIRED IN ANY CASE, IS
REQUIRED IN ALL CASES COGNIZABLE IN ADMIRALTY - WHETHER THE CRAFT WAS
FOR BUSINESS OR PLEASURE, TOUCHED IN FIVE STATES, FIVE NATIONS OR NEVER
LEFT THE CONFINES OF AN INLAND LAKE.  THE DECEPTIVE LURE OF CERTAINTY
AND COMPREHENSIVE SYMMETRY SHOULD NOT BE PERMITTED TO CONCEAL THE FACT
THAT ADMIRALTY'S EXPANSION BEYOND "THE EBB AND FLOW OF THE TIDES" HAS
BEEN A RESPONSE TO DEMANDS MORE INCLUSIVE THAN THOSE FOR MECHANICAL
UNIFORMITY. 

UNDER THE DISTRIBUTION OF POWER BETWEEN NATIONAL AUTHORITY AND LOCAL
LAW, ADMIRALTY HAS DEVELOPED FOR MORE THAN A HUNDRED YEARS BY RULINGS
OF THE COURT, BUT NOT BY ABSOLUTES EITHER OF ABSTENTION OR EXTENSION. 
WHILE NOT ABLE TO JOIN THE DISSENTERS, I CAN ONLY HOPE THAT WHAT ARE
ESSENTIALLY DICTA WILL NOT BE FOUND CONTROLLING WHEN SITUATIONS WHICH
HAVE NOT CALLED THEM FORTH, AND TO WHICH THEY ARE NOT APPLICABLE, COME
BEFORE THE COURT FOR ADJUDICATION. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

THE OPINION OF THE COURT STATES THAT "THE CRUCIAL QUESTIONS IN THIS
CASE NARROW DOWN TO THESE: (1) IS THERE A JUDICIALLY ESTABLISHED
FEDERAL ADMIRALTY RULE GOVERNING THESE WARRANTIES?  (2) IF NOT, SHOULD
WE FASHION ONE?"  BY QUESTION (1) THE COURT MEANS, AS ITS OPINION
SHOWS, A FEDERAL ADMIRALTY RULE THAT A WARRANTY OF AN INSURED IS TO BE
STRICTLY ENFORCED WITH THE RESULT THAT A BREACH OF THE WARRANTY
RELIEVES THE INSURER OF LIABILITY FOR LOSS ALTHOUGH THE BREACH WAS NOT
SHOWN TO HAVE CONTRIBUTED TO THE LOSS. 

THE COURT CONCLUDES THAT THE LITERAL PERFORMANCE RULE HAS NOT BEEN
ESTABLISHED BY STATUTE OR BY JUDICIAL DECISION.  IT ACKNOWLEDGES THAT A
MARITIME INSURANCE POLICY IS A MARITIME CONTRACT BROUGHT UNDER FEDERAL
JURISDICTION BY THE ADMIRALTY CLAUSE OF THE CONSTITUTION.  INSURANCE
CO. V. DUNHAM, 11 WALL.  1.  AND SO IT RECOGNIZES THAT THE POWER "TO
FASHION CONTROLLING FEDERAL RULES" RESTS IN THE FEDERAL GOVERNMENT - IN
CONGRESS AND THE FEDERAL COURTS.  HOWEVER, THE COURT DETERMINES THAT IN
THE ABSENCE OF CONGRESSIONAL ACTION IT WILL LEAVE THE FORMULATION OF
RULES GOVERNING MARINE INSURANCE POLICIES TO THE STATES.  IT APPLIES
THIS CONCLUSION TO THE EFFECT OF A BREACH OF WARRANTY IN A MARITIME
INSURANCE POLICY. 

I DISAGREE WITH BOTH CONCLUSIONS.  OUR ADMIRALTY LAWS, LIKE OUR
COMMON LAW, CAME FROM ENGLAND.  AS A MATTER OF AMERICAN JUDICIAL
POLICY, WE TEND TO KEEP OUR MARINE INSURANCE LAWS IN HARMONY WITH THOSE
OF ENGLAND.  QUEEN INS. CO. V. GLOBE INS. CO., 263 U.S. 487, 493;
CALMAR STEAMSHIP CORP. V. SCOTT, 345 U.S. 427, 442-443.  BEFORE OUR
REVOLUTION, THE RULE OF STRICT COMPLIANCE WITH MARITIME INSURANCE
WARRANTIES HAD BEEN ESTABLISHED AS THE LAW OF ENGLAND.  (FN1)  THAT
RULE PERSISTS.  WHILE NO CASE OF THIS COURT HAS BEEN CITED OR FOUND
THAT SAYS SPECIFICALLY THAT THE RULE OF STRICT COMPLIANCE IS TO BE
APPLIED IN ADMIRALTY AND MARITIME CASES, THAT PRESUPPOSITION HAS BEEN
CONSISTENTLY ADOPTED AS THE BASIS OF REASONING FROM OUR EARLIEST DAYS. 
(FN2)  OTHER COURTS HAVE BEEN MORE SPECIFIC.  (FN3)  NO CASE HOLDS TO
THE CONTRARY. 

I AM INCLINED TO THINK THAT CONGRESS OR THIS COURT MIGHT WELL
CONSIDER MODIFYING THE STRICT RULE INSOFAR AS THE BREACHED WARRANTY
DOES NOT CONTRIBUTE TO THE LOSS.  BUT SINCE THE COURT CONCLUDES THAT IT
WILL NOT UNDERTAKE THE TASK, (FN4) IT IS UNNECESSARY FOR ME TO GO
FARTHER THAN TO SAY THAT IN THE ABSENCE OF FEDERAL AMELIORATION I WOULD
FOLLOW THE ESTABLISHED RULE OF HOLDING THE INSURED TO HIS WARRANTY. 
(FN5) 

THIS BRINGS ME TO THE CRUCIAL PHASE OF THE COURT'S DECISION WHICH, SO
THE COURT SAYS, "LEAVES THE REGULATION OF MARINE INSURANCE WHERE IT HAS
BEEN - WITH THE STATES."  THIS IS THE DOMINANT ISSUE HERE, AND THE
COURT'S DECISION STRIKES DEEP INTO THE PRINCIPLE OF A UNIFORM ADMIRALTY
LAW AND WILL HAVE THE RESULT OF UNDULY BURDENING MARITIME COMMERCE. 
THIS IS THE ISSUE PRESENTED BY THE PETITION FOR CERTIORARI AND ARGUED
IN PETITIONERS' BRIEF ON THE MERITS. 

ONE RULE OF LAW STANDS UNQUESTIONED.  THAT IS THAT ALL COURTS, STATE
AND FEDERAL, WHICH HAVE JURISDICTION TO ENFORCE MARITIME OR ADMIRALTY
SUBSTANTIVE RIGHTS MUST DO SO ACCORDING TO FEDERAL ADMIRALTY LAW. 
(FN6)  SEE PARTICULARLY THE EXCELLENT DISCUSSION BY JUDGE MAGRUDER IN
DOUCETTE V. VINCENT, 194 F.2D 834, 841 ET SEQ. THE ISSUE OF AN
INSURER'S LIABILITY UPON AN INSURED'S BROKEN WARRANTY IS CLEARLY A
MATTER OF SUBSTANTIVE LAW. 

THE COURT RELIES UPON PAUL V. VIRGINIA, 8 WALL.  168; HOOPER V.
CALIFORNIA, 155 U.S. 648; AND NUTTING V. MASSACHUSETTS, 183 U.S. 553,
AS HOLDING THAT "STATES COULD REGULATE MARINE INSURANCE THE SAME AS ANY
OTHER INSURANCE."  THOSE CASES ONLY APPROVE PROVISIONS OF STATE LAW
THAT REQUIRE AGENTS AND COMPANIES TO TAKE OUT LICENSES AND CONFORM TO
VARIOUS CONDITIONS PRELIMINARY TO DOING BUSINESS.  (FN7)  THE COURT
ALSO RELIES ON CONGRESSIONAL ACTION AND INACTION, BUT THE FACT THAT
CONGRESS HAS REGULATED THE ORGANIZATION, TAXING AND LICENSING OF FIRE,
CASUALTY AND MARINE INSURANCE COMPANIES IN THE DISTRICT OF COLUMBIA,
AND HAS RECOGNIZED THE EXISTENCE OF MARINE COMPANIES UNDER THE MERCHANT
MARINE ACT OF 1920, HAS NO RELEVANCY TO WHETHER THE PROVISIONS OF STATE
LAW SHOULD CONTROL THE EFFECT TO BE GIVEN TO WARRANTIES IN MARINE
INSURANCE POLICIES.  NOR DOES THE MCCARRAN ACT INDICATE THAT STATES MAY
LEGISLATE TO CHANGE FUNDAMENTALLY MARITIME INSURANCE LAW.  (FN8)  IT
WAS SO DECIDED IN MARYLAND CASUALTY CO. V. CUSHING, 347 U.S. 409, 413. 
THE ANSWER AS TO WHETHER STATE OR FEDERAL LAW GOVERNS MARINE INSURANCE
CONTRACTS LIES IN THE NATURE OF THE FEDERAL ADMIRALTY JURISDICTION. 

THE CONSTITUTION, ART. III, SEC. 2, PROVIDES THAT "THE JUDICIAL POWER
SHALL EXTEND  ...  TO ALL CASES OF ADMIRALTY AND MARITIME JURISDICTION
...  ."  THE FIRST CONGRESS ENACTED THAT THE DISTRICT COURTS "SHALL
ALSO HAVE 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  ...  ."  (FN9)  IN THIS MANNER NATIONAL CONTROL
WAS ASSERTED OVER MARITIME LITIGATION.  IT WAS NEEDED BECAUSE THE
REPUBLIC BORDERED A GREAT LENGTH OF THE ATLANTIC LITTORAL AND THE
NAVIGABLE WATERS FURNISHED THE BEST AVENUE OF TRANSPORTATION. 

ALTHOUGH CONGRESSIONAL AUTHORITY OVER MARITIME TRADE WAS NOT
EXPRESSLY GRANTED BY THE CONSTITUTION, THE GRANT OF ADMIRALTY
JURISDICTION TOGETHER WITH THE NECESSARY AND PROPER CLAUSE HAS BEEN
FOUND ADEQUATE TO ENABLE CONGRESS TO DECLARE THE PREVAILING MARITIME
LAW FOR NAVIGABLE WATERS THROUGHOUT THE NATION.  (FN10)  THE COMMERCE
CLAUSE AIDS WHERE INTERSTATE COMMERCE IS AFFECTED, BUT HAS NOT THE
SCOPE OF "NAVIGABLE WATERS."  (FN11)  CONGRESSIONAL POWER TO REST
EXCLUSIVE JURISDICTION IN THE FEDERAL COURTS WHERE, AS HERE, THE
CONSTITUTIONALLY DELEGATED JUDICIAL AUTHORITY EXISTS, IS ESTABLISHED. 
THE MOSES TAYLOR, 4 WALL.  411, 429.  THE REMEDY PRESERVED BY THE
SAVINGS CLAUSE OF THE JUDICIARY ACT OF 1789, "IS NOT A REMEDY IN THE
COMMON-LAW COURTS  ...  BUT A COMMON-LAW REMEDY."  ID., AT 431.  THE
MEANING OF THE QUOTED CLAUSE BECOMES PLAINER WHEN READ WITH THE STATE
STATUTE WHICH THE MOSES TAYLOR HELD UNCONSTITUTIONAL.  THAT STATUTE
AUTHORIZED A "PROCEEDING AGAINST THE VESSEL," A STRICTLY IN REM
PROCEEDING IN ADMIRALTY, ID., AT 412, 413, DIFFERENT FROM THE COMMON
LAW ACTION IN PERSONAM.  CONSEQUENTLY, WHEN A CALIFORNIA RESIDENT
BROUGHT AN IN REM PROCEEDING IN A CALIFORNIA COURT, HE WAS PURSUING AN
ADMIRALTY REMEDY, NOT A COMMON-LAW REMEDY.  THIS COURT, THEREFORE, HELD
THE CASE OUTSIDE THE SAVINGS CLAUSE OF THE NINTH SECTION OF THE
JUDICIARY ACT OF 1789.  (FN12) 

ON THE OTHER HAND, A STATE COURT WAS HELD TO HAVE JURISDICTION TO
SELL A VESSEL TO ENFORCE A LIEN IN KNAPP, STOUT & CO. V. MCCAFFREY, 177
U.S. 638, WHERE THE SUIT WAS AGAINST THE OWNER, IN PERSONAM, ALTHOUGH
IN EQUITY FOR FORECLOSURE OF A POSSESSORY LIEN.  "THE REMEDY CHOSEN BY
THE PLAINTIFF WAS THE DETENTION OF THE RAFT FOR HIS TOWAGE CHARGES." 
ID., AT 644.  AS THIS WAS A STATE-APPROVED REMEDY IN THE COMMON LAW,
THE USE OF STATE EQUITY PROCEDURE TO ENFORCE THE LIEN WAS HELD TO BE IN
ACCORD WITH THE RESERVATION OF A COMMON-LAW REMEDY FROM THE EXCLUSIVE
JURISDICTION OF ADMIRALTY.  (FN13)  THUS, BY SAVING A SUITOR'S COMMON
LAW REMEDY, CONGRESS HAS CREATED BY SEC. 9 OF THE JUDICIARY ACT OF
1789, NOW 28 U.S.C. (SUPP.  V, 1952) SEC. 1333, ONLY A LIMITED
EXCLUSIVE JURISDICTION.  THE STATE COURTS MAY FURNISH NOT ONLY A COMMON
LAW REMEDY EXISTING AT THE TIME OF THE ADOPTION OF THE CONSTITUTION,
FOR SUBSTANTIVE ADMIRALTY RIGHTS, BUT ALSO NEW JUDICIAL REMEDIES
CREATED BY STATUTE; THAT IS, WHATEVER REMEDY IS NOT STRICTLY IN REM. 
(FN14) 

STATE AUTHORIY, HOWEVER, ALTHOUGH IT MAY PROVIDE REMEDIES, DOES NOT
EXTEND TO CHANGING THE GENERAL SUBSTANTIVE ADMIRALTY LAW.  THAT IS THE
MARITIME LAW EXISTING AS A BODY OF LAW ENFORCEABLE IN ADMIRALTY.  THE
EXTENT OF THE STATES' POWER TO GRANT RIGHTS ARISING FROM MARITIME
INCIDENTS IS NOT SUBJECT TO DEFINITION.  IT MAY VARY AS THE COURSE OR
MANNER OF NAVIGATION OR COMMERCE CHANGES.  IT EXISTS IN SOME
CIRCUMSTANCES, SEE JUST V. CHAMBERS, 312 U.S. 383, 388, AND, AS
INDICATED BOTH IN THE MAJORITY AND MINORITY OPINIONS IN THE JENSEN
CASE, 244 U.S. 205, MUST BE DETERMINED IN EACH SITUATION.  (FN15)  THE
PRINCIPLES WHICH CONTROL THE VALIDITY OF AN ASSERTION OF STATE POWER IN
THE ADMIRALTY SPHERE ARE, HOWEVER, CLEAR.  STATE POWER MAY BE EXERCISED
WHERE IT IS COMPLEMENTARY TO THE GENERAL ADMIRALTY LAW.  IT MAY NOT BE
EXERCISED WHERE IT WOULD HAVE THE EFFECT OF HARMING ANY NECESSARY OR
DESIRABLE UNIFORMITY.  (FN16)  THE CASES DECIDED BY THIS COURT MAKE IT
PLAIN THAT STATE LEGISLATION WILL NOT BE PERMITTED TO BURDEN MARITIME
COMMERCE WITH VARIABLE RULES OF LAW THAT DESTROY THAT UNIFORMITY. 
(FN17) 

SINCE CONGRESS HAS POWER TO MAKE FEDERAL JURISDICTION AND LEGISLATION
EXCLUSIVE, THE SITUATION IN ADMIRALTY IS SOMEWHAT ANALOGOUS TO THAT
GOVERNING STATE ACTION INTERFERING WITH INTERSTATE COMMERCE.   IN THE
ABSENCE OF CONGRESSIONAL DIRECTION, IT IS THIS COURT THAT MUST BEAR THE
HEAVY RESPONSIBILITY OF SAYING WHEN A STATE STATUTE HAS BURDENED THE
REQUIRED FEDERAL UNIFORMITY.  (FN18)  IT IS ONE THING TO ALLOW THE
STATES TO ADD A REMEDY OR CREATE A NEW CAUSE OF ACTION FOR CERTAIN
INCIDENTS ARISING OUT OF MARITIME ACTIVITY.  IT IS QUITE ANOTHER THING
TO RELINQUISH AN ENTIRE BODY OF SUBSTANTIVE LAW MAKING FOR A WHOLE
PHASE OF MARITIME ACTIVITY TO THE STATES.  SUCH ACTION DOES VIOLENCE TO
THE PREMISE UPON WHICH THE ADMIRALTY JURISDICTION WAS CONSTRUCTED. 
(FN19) 

IT IS NOT ONLY IN MARKINGS, LIGHTS, SIGNALS, AND NAVIGATION THAT
STATES ARE BARRED FROM LEGISLATION INTERFERING WITH MARITIME
OPERATION.  THE NEED FOR A UNIFORM RULE IS JUST AS GREAT WHEN DEALING
WITH THE EFFECT TO BE GIVEN TO MARINE INSURANCE ON BOATS WHICH PLOUGH
OUR NAVIGABLE WATERS.  A VESSEL MOVES FROM STATE TO STATE ALONG OUT
COASTS OR RIVERS.  STATE LINES MAY RUN WITH THE CHANNEL OR ACROSS IT.
UNDER MARITIME CUSTOM AN INSURANCE POLICY USUALLY COVERS THE VESSEL
WHEREVER IT MAY GO.  IF UNIFORMITY IS NEEDED ANYWHERE, IT IS NEEDED IN
MARINE INSURANCE.  IT IS LIKE THE QUESTION OF SEAWORTHINESS WHICH MUST
BE CONTROLLED BY ONE LAW.  IT PRESENTS THE SAME PROBLEM AS A STATE LAW
CONTROLLING THE OPERATION OF INTERSTATE BOATS.  KELLY V. WASHINGTON,
302 U.S. 1, 15.  FOR A STATE TO REQUIRE POLICIES TO BE ISSUED UNDER ITS
AUTHORITY OR TO REQUIRE EXTRA-STATE POLICIES TO BE INTERPRETED BY ITS
LAWS BURDENS MARITIME OPERATIONS UNDULY.  SHIPMASTERS MUST KNOW HOW TO
HANDLE THEIR VESSELS TO PRESERVE THEIR INSURANCE.  INSURERS MUST KNOW
THE RISKS THEY ARE ASSUMING WHEN THEY FIX THEIR PREMIUMS.  WHAT LAW IS
TO GOVERN - THAT OF THE STATE WHERE THE INSURANCE CONTRACT WAS ISSUED,
THE STATE OF THE ACCIDENT, OR THE STATE OF THE FORUM?  IT SEEMS AN
UNREASONABLE INTERFERENCE WITH MARITIME ACTIVITY TO ALLOW THE MANY
STATES TO DECLARE THE SUBSTANTIVE LAW OF MARINE INSURANCE. 

THE COURT REFUSES TO DECLARE THE GOVERNING MARITIME LAW ON WARRANTIES
IN THIS CASE BECAUSE IT COULD ONLY BE DONE "PIECEMEAL, ON A CASE-BY
CASE BASIS."  IT WOULD PREFER TO AWAIT CONGRESSIONAL ENACTMENT OF A
COMPREHENSIVE CODE.  BUT QUESTIONS OF CONTRACT INTERPRETATION AND THE
EFFECT TO BE GIVEN TO CONTRACT PROVISIONS ARE QUESTIONS WHICH THE COURT
IS PARTICULARLY EQUIPPED TO HANDLE.  A BROAD LEGISLATIVE APPROACH MIGHT
BE DESIRABLE; BUT IN ITS ABSENCE WE COULD ESTABLISH A RULE GOVERNING
THE EFFECT TO BE GIVEN TO BREACHES OF WARRANTIES WHICH WOULD BE BINDING
ON EVERY COURT IN THE LAND.  IT IS CERTAINLY NOT DESIRABLE TO DEFER TO
THE LEGISLATURE OF TEXAS OR ANY OTHER STATE WHICH, THOUGH IT CAN ENACT
A COMPREHENSIVE CODE, CAN MAKE IT BINDING ONLY IN ITS OWN STATE.  TO DO
SO DESTROYS THE ESSENTIAL UNIFORMITY OF THE MARITIME LAW. 

MY UNDERSTANDING OF THE FACTS AND LEGAL ISSUES AND THE RULE TO BE
DEDUCED FROM THE COURT'S DECISION FORBIDS MY JOINING THE LIMITED
CONCURRENCE OF MR. JUSTICE FRANKFURTER.  THE POLICY HERE IS NOT
RESTRICTED TO THE BOAT'S USE ON LAKE TEXOMA NOR TO ITS USE IN ANY ONE
STATE.  IN ADDITION TO ITS USE ON THE LAKE, THE POLICY COVERED A
"CRUISE FROM GREENVILLE, MISSISSIPPI VIA MISSISSIPPI AND RED RIVERS TO
DENISON, TEXAS" AND THEN TO THE LAKE.  THE WATERS OF FIVE STATES WERE
NAVIGATED BEFORE REACHING THE LAKE, WHICH IS ITSELF AN INTERSTATE BODY
OF WATER LYING BETWEEN TEXAS AND OKLAHOMA.  THE CONSIDERATIONS WHICH
LEAD ME TO FAVOR A UNIFORM RULE ARE NOT CHANGED SIMPLY BECAUSE A
RELATIVELY SMALL BOAT WAS HERE INVOLVED, OR THE NUMBER OF STATES
THROUGH WHICH IT PASSED WERE FEW, OR BECAUSE ITS ULTIMATE DESTINATION
WAS A SMALL LAKE.    THIS STATE RULE OF LAW COVERING THE INCIDENTS OF
MARINE INSURANCE AFFECTS NOT ONLY TEXAS OR LAKE TEXOMA BUT THE LONGEST
VOYAGE WITHIN THE CRUISING CAPACITY OF THE WANDERER.  AS IS SHOWN BY
THE HAMILTON, 207 U.S. 398, SUCH AN EXERCISE OF STATE POWER PERMITS THE
STATES TO DECLARE THE APPLICABLE LAWS OF MARINE INSURANCE EVEN ON THE
HIGH SEAS.  THE EVENT OF LOSS MUST ALWAYS BE LOCAL, BUT THE COVERAGE OF
THE POLICY IS GENERAL.  (FN20)  WHEN STATE POWER INTRUDES UPON THE
UNIFORMITY IMPOSED BY FEDERAL LAW, ITS EXERCISE IS INVALID WHEN APPLIED
TO MARITIME LITIGATION WHETHER THE APPLICATION OCCURS IN LITIGATION
ARISING FROM AN INCIDENT THAT HAPPENS ON A SMALL LAKE OR A MIGHTY
RIVER. 

I WOULD AFFIRM. 

FN1  BEAN V. STUPART, 1 DOUG.  11; DE HAHN V. HARTLEY, 1 T.R. 343
(EACH REPORTED 99 ENG.  REP., FULL REPRINT, 9 AND 1130, RESPECTIVELY);
2 ARNOULD, MARINE INSURANCE (14TH ED.), C. 20. 

FN2  HODGSON V. THE MARINE INS. CO. OF ALEXANDRIA, 5 CRANCH 100,
109: 

"THE INSURANCE IN THIS CASE BEING GENERAL, AS WELL FOR THE PARTIES
NAMED AS 'FOR ALL AND EVERY OTHER PERSON OR PERSONS TO WHOM THE VESSEL
DID OR MIGHT APPERTAIN,' AND CONTAINING NO WARRANTY OF NEUTRALITY,
BELLIGERENT AS WELL AS AMERICAN PROPERTY WAS COVERED BY IT." 

LIVINGSTON V. THE MARYLAND INS. CO., 6 CRANCH 274, 278: 

"THE WARRANTY, IN THIS CASE, IS IN THESE WORDS; 'WARRANTED, BY THE
ASSURED, TO BE AMERICAN PROPERTY, PROOF OF WHICH TO BE REQUIRED IN THE
UNITED STATES ONLY.' 

"THE INTEREST INSURED IS ADMITTED TO BE AMERICAN PROPERTY, IN THE
STRICTEST SENSE OF THE TERM; BUT IT IS CONTENDED, THAT BARURO, A
SPANISH SUBJECT, HAD AN INTEREST IN THE CARGO, WHICH FALSIFIES THE
WARRANTY. 

"WHETHER BARURO COULD BE CONSIDERED AS HAVING AN INTEREST IN THE
CARGO, OR NOT, IS A QUESTION OF SOME INTRICACY, WHICH THE COURT HAS NOT
DECIDED; AND WHICH, IF DETERMINED IN THE ONE WAY OR THE OTHER, WOULD
NOT AFFECT THE WARRANTY; BECAUSE, THE ASSURED ARE NOT UNDERSTOOD TO
WARRANT THAT THE WHOLE CARGO IS NEUTRAL, BUT THAT THE INTEREST INSURED
IS NEUTRAL." 

HAZARD'S ADMINISTRATOR V. NEW ENG. MAR. INS. CO., 8 PET. 557, 570;
CALMAR STEAMSHIP CORP. V. SCOTT, 345 U.S. 427, 432-436. 

FN3  OGDEN V. ASH, 1 DALL.  174 (COMMON PLEAS OF PHILADELPHIA
COUNTY); MARTIN V. DELAWARE INS. CO., 16 FED. CAS. NO. 9,161, P. 894
(C.C.D. PA.); SNYDER V. HOME INS. CO., 133 F. 848 (D.C.S.D.N.Y.);
WHEALTON PACKING CO. V. AETNA INS. CO., 185 F. 108 (C.A. 4TH CIR.);
CANTON INS. OFFICE, LTD. V. INDEPENDENT TRANSP.  CO., 217 F. 213 (C.A.
9TH CIR.); SHAMROCK TOWING CO. V. AMERICAN INS. CO., 9 F.2D 57, 60
(C.A.2D CIR.); AETNA INS. CO. V. HOUSTON OIL & TRANSP.  CO., 49 F.2D
121 (C.A. 5TH CIR.); ROBINSON V. HOME INS. CO., 73 F.2D 3 (C.A. 5TH
CIR.); LEVINE V. AETNA INS. CO., 139 F.2D 217 (C.A.2D CIR.); HOME INS.
CO. V. CICONETT, 179 F.2D 892 (C.A. 6TH CIR.); RED TOP BREWING CO. V.
MAZZOTTI, 202 F.2D 481 (C.A.2D CIR.); UNITED STATES GYPSUM CO. V.
INSURANCE CO., 19 F. SUPP. 767 (D.C.S.D.N.Y.). 

FN4  COMPARE HALCYON LINES V. HAENN SHIP CORP., 342 U.S. 282, 285. 

FN5  THE FACTS IN THIS CASE ARE THAT THE BOAT WAS DESTROYED BY FIRE
OF UNKNOWN ORIGIN WHILE MOORED IN LAKE TEXOMA.  "THE POLICY PROVIDES
THAT THE INSURANCE SHALL BE VOID IN CASE THE INTEREST INSURED SHALL BE
SOLD, ASSIGNED, TRANSFERRED, OR PLEDGED WITHOUT THE PREVIOUS CONSENT IN
WRITING OF THE ASSURERS, AND FURTHER THAT IT IS WARRANTED BY THE
ASSURED THAT THE VESSEL SHALL BE USED SOLELY FOR PRIVATE PLEASURE
PURPOSES AND SHALL NOT BE HIRED OR CHARTERED UNLESS PERMISSION IS
GRANTED BY INDORSEMENT ON THE POLICY."  201 F.2D, AT 834.  ALL THESE
WARRANTIES WERE BREACHED.  THE INSURER MIGHT REASONABLY HAVE REQUIRED
THEIR INCLUSION BEFORE ISSUING THE POLICY. 

FN6  WATTS V. CAMORS, 115 U.S. 353; GARRETT V. MOORE-MCCORMACK CO.,
317 U.S. 239, 243.  "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, 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."  POPE & TALBOT, INC. V. HAWN, 346 U.S.
406, 409-410; MADRUGA V. SUPERIOR COURT, 346 U.S. 556, 561; MARYLAND
CASUALTY CO. V. CUSHING, 347 U.S. 409, 413-419, AND CONC.  423 ET SEQ.
CF. THE ARMAR, 1954 2 LLOYD'S REP. 95, 101 (N.Y. SUP. CT.).  SEE 1
BENEDICT, ADMIRALTY (6TH ED.), P. 55, N. 77. 

FN7  IN DURKEE V. INDIA MUTUAL INS. CO., 159 MASS. 514, 34 N.E. 1133,
THE ISSUE OF THE POWER OF A STATE TO CHANGE THE ADMIRALTY LAW WAS NOT
TOUCHED UPON. 

FN8  59 STAT. 33, 15 U.S.C. SECS. 1011, 1012. 

FN9  JUDICIARY ACT OF 1789, SEC. 9, 1 STAT. 77.  THERE HAS BEEN NO
INTENTIONAL CHANGE IN MEANING BY THE REVISION OF 1948, 28 U.S.C. (SUPP.
V, 1952) SEC. 1333, WHICH READS: 

"(1)  ANY CIVIL CASE OF ADMIRALTY OR MARITIME JURISDICTION, SAVING TO
SUITORS IN ALL CASES ALL OTHER REMEDIES TO WHICH THEY ARE OTHERWISE
ENTITLED." 

THE REVISER'S NOTE STATES: 

"THE 'SAVING TO SUITORS' CLAUSE IN SECTIONS 41(3) AND 371(3) OF TITLE
28, U.S.C., 1940 ED., WAS CHANGED BY SUBSTITUTING THE WORDS 'ANY OTHER
REMEDY TO WHICH HE IS OTHERWISE ENTITLED' FOR THE WORDS 'THE RIGHT OF A
COMMON-LAW REMEDY WHERE THE COMMON LAW IS COMPETENT TO GIVE IT.'  THE
SUBSTITUTED LANGUAGE IS SIMPLER AND MORE EXPRESSIVE OF THE ORIGINAL
INTENT OF CONGRESS AND IS IN CONFORMITY WITH RULE 2 OF THE FEDERAL
RULES OF CIVIL PROCEDURE ABOLISHING THE DISTINCTION BETWEEN LAW AND
EQUITY." 

FN10  THE PROPELLER GENESEE CHIEF V. FITZHUGH, 12 HOW.  443; THIS
INCLUDES POWER TO CHANGE THE ADMIRALTY PROCEDURE TO TRIAL BY JURY, ID.,
AT 459-460; IN RE GARNETT, 141 U.S. 1, 12; SOUTHERN PACIFIC CO. V.
JENSEN, 244 U.S. 205, 215; PANAMA R. CO. V. JOHNSON, 264 U.S. 375, 385;
NOGUEIRA V. N.Y., N.H.&H.R. CO., 281 U.S. 128, 138; GARRETT V. MOORE
MCCORMACK CO., 317 U.S. 239, 244; O'DONNELL V. GREAT LAKES DREDGE CO.,
318 U.S. 36, 39; PENNSYLVANIA R. CO. V. O'ROURKE, 344 U.S. 334, 337. 

COMPARE THE CITY OF NORWALK, 55 F. 98, 105. 

FN11  THE BELFAST, 7 WALL.  624, 640.  CF. O'DONNELL V. GREAT LAKES
DREDGE CO., N. 10, SUPRA. 

FN12  THE SAME RULE WAS APPLIED IN EFFORTS TO ENFORCE STATE-CREATED
LIENS IN STATE COURTS BY PROCEEDINGS IN REM AGAINST THE BOAT IN THE
ROBERT W. PARSONS, 191 U.S. 17, 37, AND IN THE GLIDE, 167 U.S. 606, 616
618, 623-624. 

FN13  MR. JUSTICE BROWN WROTE FOR THE COURT: 

"THE TRUE DISTINCTION BETWEEN SUCH PROCEEDINGS AS ARE AND SUCH AS ARE
NOT INVASIONS OF THE EXCLUSIVE ADMIRALTY JURISDICTION IS THIS:  IF THE
CAUSE OF ACTION BE ONE COGNIZABLE IN ADMIRALTY, AND THE SUIT BE IN REM
AGAINST THE THING ITSELF, THOUGH A MONITION BE ALSO ISSUED TO THE
OWNER, THE PROCEEDING IS ESSENTIALLY ONE IN ADMIRALTY.  IF, UPON THE
OTHER HAND, THE CAUSE OF ACTION BE NOT ONE OF WHICH A COURT OF
ADMIRALTY HAS JURISDICTION, OR IF THE SUIT BE IN PERSONAM AGAINST AN
INDIVIDUAL DEFENDANT, WITH AN AUXILIARY ATTACHMENT AGAINST A PARTICULAR
THING, OR AGAINST THE PROPERTY OF THE DEFENDANT IN GENERAL, IT IS
ESSENTIALLY A PROCEEDING ACCORDING TO THE COURSE OF THE COMMON LAW, AND
WITHIN THE SAVING CLAUSE OF THE STATUTE  ...  OF A COMMON LAW REMEDY. 
THE SUIT IN THIS CASE BEING ONE IN EQUITY TO ENFORCE A COMMON LAW
REMEDY, THE STATE COURTS WERE CORRECT IN ASSUMING JURISDICTION."  177
U.S., AT 648. 

SEE ALSO ROUNDS V. CLOVERPORT FOUNDRY & MACHINE CO., 237 U.S. 303,
308; C.J. HENDRY CO. V. MOORE, 318 U.S. 133, 137; THE MOSES TAYLOR, 4
WALL.  411, 427. 

FN14  RED CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109, 123-124:
"THE 'RIGHT OF A COMMON LAW REMEDY', SO SAVED TO SUITORS, DOES NOT, AS
HAS BEEN HELD IN CASES WHICH PRESENTLY WILL BE MENTIONED, INCLUDE
ATTEMPTED CHANGES BY THE STATES IN THE SUBSTANTIVE ADMIRALTY LAW (I.E.,
AT P. 124, WHERE IT WAS SAID OF STATE STATUTES HELD UNCONSTITUTIONAL,
THEY WERE "INVALID, BECAUSE THEIR PROVISIONS WERE HELD TO MODIFY OR
DISPLACE ESSENTIAL FEATURES OF THE SUBSTANTIVE MARITIME LAW"), BUT IT
DOES INCLUDE ALL MEANS OTHER THAN PROCEEDINGS IN ADMIRALTY WHICH MAY BE
EMPLOYED TO ENFORCE THE RIGHT OR TO REDRESS THE INJURY INVOLVED.  IT
INCLUDES REMEDIES IN PAIS, AS WELL AS PROCEEDINGS IN COURT; JUDICIAL
REMEDIES CONFERRED BY STATUTE, AS WELL AS THOSE EXISTING AT THE COMMON
LAW; REMEDIES IN EQUITY, AS WELL AS THOSE ENFORCEABLE IN A COURT OF
LAW.  KNAPP, STOUT & CO. V. MCCAFFREY, 177 U.S. 638, 644 ET SEQ.;
ROUNDS V. CLOVERPORT FOUNDRY & MACHINE CO., 237 U.S. 303.  A STATE MAY
NOT PROVIDE A REMEDY IN REM FOR ANY CAUSE OF ACTION WITHIN THE
ADMIRALTY JURISDICTION.  THE HINE V. TREVOR, 4 WALL.  555; THE GLIDE,
167 U.S. 606.  BUT OTHERWISE, THE STATE, HAVING CONCURRENT
JURISDICTION, IS FREE TO ADOPT SUCH REMEDIES, AND TO ATTACH TO THEM
SUCH INCIDENTS, AS IT SEES FIT.  NEW YORK, THEREFORE, HAD THE POWER TO
CONFER UPON ITS COURTS THE AUTHORITY TO COMPEL PARTIES WITHIN ITS
JURISDICTION TO SPECIFICALLY PERFORM AN AGREEMENT FOR ARBITRATION,
WHICH IS VALID BY THE GENERAL MARITIME LAW, AS WELL AS BY THE LAW OF
THE STATE, WHICH IS CONTAINED IN A CONTRACT MADE IN NEW YORK AND WHICH,
BY ITS TERMS, IS TO BE PERFORMED THERE." 

SEE STEAMBOAT COMPANY V. CHASE, 16 WALL.  522, 530 ET SEQ.; PANAMA R.
CO. V. VASQUEZ, 271 U.S. 557, 560-561. 

FN15  CF. COOLEY V. BOARD OF WARDENS, 12 HOW.  299, 316; STANDARD
DREDGING CORP. V. MURPHY, 319 U.S. 306, 309; CALDAROLA V. ECKERT, 332
U.S. 155, 158.  SEE POPE & TALBOT, INC. V. HAWN, 346 U.S. 406, 410,
418. 

FN16  LEVINSON V. DEUPREE, 345 U.S. 648. 

FN17  KELLY V. WASHINGTON, 302 U.S. 1, 15; PANAMA R. CO. V. JOHNSON,
264 U.S. 375, 386-387, AND CASES CITED; WESTERN FUEL CO. V. GARCIA, 257
U.S. 233, 242; CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372, 381 ET
SEQ., AND CASES CITED; THE CITY OF NORWALK, 55 F. 98, 106.  SEE MADRUGA
V. SUPERIOR COURT, 346 U.S. 556, 561.  1 BENEDICT, ADMIRALTY (6TH ED.),
P. 53.  CF. MINNESOTA RATE CASES, 230 U.S. 352, 399. 

FN18  JUST V. CHAMBERS, 312 U.S. 383, 388, 392; KELLY V. WASHINGTON,
SUPRA, AT 14-15.  CF. SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761,
769.  SEE THE STATEMENT FROM THE INTERNATIONAL STANDPOINT IN THE
LOTTAWANNA, 21 WALL.  558, 572. 

FN19  CANFIELD, THE UNIFORMITY OF THE MARITIME LAW, 24 MICH. L. REV.
544, 556; STEVENS, ERIE R.R. V. TOMPKINS AND THE UNIFORM GENERAL
MARITIME LAW, 64 HARV. L. REV. 246, 269. 

FN20  SEE THE CITY OF NORWALK, 55 F. 98, 106. 
..END :























BOUDOIN V. LYKES BROTHERS STEAMSHIP CO., INC. 348 U.S. 336 


NO. 406.  ARGUED FEBRUARY 11, 1955 - DECIDED FEBRUARY 28, 1955 - 211
F.2D 618, REVERSED. 


AN AMERICAN SEAMAN SUED A SHIPOWNER IN A FEDERAL DISTRICT COURT TO
RECOVER FOR INJURIES INFLICTED UPON HIM BY A FELLOW SEAMAN WHO WHILE
DRUNK ATTACKED HIM ABOARD THE SHIP.  ON THE FACTS OF THE CASE, THE
DISTRICT COURT FOUND THAT THE ASSAILANT WAS "A PERSON OF DANGEROUS
PROPENSITIES AND PROCLIVITIES" AT THE TIME OF THE ASSAULT; THAT HE WAS
"A PERSON OF VIOLENT CHARACTER, BELLIGERENT DISPOSITION, EXCESSIVE
DRINKING HABITS, DISPOSED TO FIGHTING AND MAKING THREATS AND ASSAULTS";
AND THAT HE WAS NOT "EQUAL IN DISPOSITION AND SEAMANSHIP TO THE
ORDINARY MEN IN THE CALLING."  HELD: THE WARRANTY OF SEAWORTHINESS
EXTENDS TO THE CREW AS WELL AS TO THE SHIP AND THE GEAR; THE RECORD
SUSTAINS THE DISTRICT COURT'S FINDINGS; AND THE FINDINGS WARRANT
RECOVERY FOR BREACH OF THE WARRANTY OF SEAWORTHINESS.  PP. 336-340. 

BOUDOIN V. LYKES BROTHERS STEAMSHIP CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BY AN AMERICAN SEAMAN AGAINST THE OWNER AND OPERATOR
OF AN OCEAN FREIGHTER, THE MASON LYKES, ON WHICH HE WAS FORMERLY
EMPLOYED.  HE BASED HIS CLAIM FOR RECOVERY BOTH ON NEGLIGENCE AND ON
BREACH OF THE WARRANTY OF SEAWORTHINESS.  THE CASE WAS TRIED BY THE
COURT UPON WAIVER OF JURY.  THE DISTRICT COURT FOUND FOR THE PLAINTIFF,
HOLDING THAT THE SHIPOWNER BREACHED ITS WARRANTY OF SEAWORTHINESS AND
THAT ITS OFFICERS WERE NEGLIGENT.  112 F. SUPP. 177.  THE COURT OF
APPEALS REVERSED, 211 F.2D 618.  WE GRANTED CERTIORARI TO RESOLVE A
SEEMING CONFLICT BETWEEN THAT OPINION AND KEEN V. OVERSEAS TANKSHIP
CORP., 194 F.2D 515, DECIDED BY THE COURT OF APPEALS FOR THE SECOND
CIRCUIT.  348 U.S. 814. 

PLAINTIFF WAS EMPLOYED IN THE ENGINE DEPARTMENT AS AN OILER.  THE
SHIP HAD A DECK MAINTENANCE MAN, NAMED MANUEL GONZALES.  PLAINTIFF'S
INJURY WAS INFLICTED BY GONZALES, WHO, DURING THE COURSE OF A NIGHT'S
DRINKING PARTY, WENT TO PLAINTIFF'S ROOM AND TOOK A BOTTLE OF BRANDY
FROM UNDER PLAINTIFF'S BED.  PLAINTIFF AWOKE, STARTLED; AND GONZALES
ATTACKED HIM WITH THE BOTTLE, CAUSING SEVERE INJURIES. 

THE DISTRICT COURT PLACED LIABILITY FOR BREACH OF THE WARRANTY OF
SEAWORTHINESS ON THE HOLDING OF THE KEEN CASE, WHERE JUDGE LEARNED HAND
WROTE: 

"THE WARRANTY OF SEAWORTHINESS AS TO HULL AND GEAR HAS NEVER MEANT
THAT THE SHIP SHALL WITHSTAND EVERY VIOLENCE OF WIND AND WEATHER; ALL
IT MEANS IS THAT SHE SHALL BE REASONABLY FIT FOR THE VOYAGE IN
QUESTION.  APPLIED TO A SEAMAN, SUCH A WARRANTY IS, NOT THAT THE SEAMAN
IS COMPETENT TO MEET ALL CONTINGENCIES; BUT THAT HE IS EQUAL IN
DISPOSITION AND SEAMANSHIP TO THE ORDINARY MEN IN THE CALLING."  194
F.2D, AT 518. 

THE DISTRICT COURT FOUND THAT GONZALES WAS NOT "EQUAL IN DISPOSITION
AND SEAMANSHIP TO THE ORDINARY MEN IN THE CALLING."  112 F. SUPP., AT
180. 

THE ASSAULT BY GONZALES ON PLAINTIFF OCCURRED IN THE EARLY MORNING OF
NOVEMBER 25, 1949.  THIS HAPPENED DURING THE COURSE OF A DRINKING PARTY
ON BOARD IN WHICH MUCH LIQUOR WAS CONSUMED, GONZALES DRINKING NEARLY A
FIFTH.  GONZALES WAS, INDEED, DRUNK WHEN HE ASSAULTED PLAINTIFF.  THE
EVIDENCE IS DISPUTED; BUT THE DISTRICT COURT FOUND THAT SHORTLY AFTER
GONZALES STRUCK PLAINTIFF WITH THE BOTTLE, HE RETURNED WITH A LARGE
KNIFE WHICH HE ALSO INTENDED TO USE ON HIM.  WHEN PLAINTIFF WAS TAKEN
TO THE SHIP'S HOSPITAL, GONZALES CREATED A DISTURBANCE OUTSIDE -
THREATENING THE MATE, TRYING TO ENTER THE SICK BAY, AND OFFERING TO
GIVE BLOOD TO PLAINTIFF FOR A TRANSFUSION.  THOSE EVENTS FOLLOWED ON
THE HEELS OF THE ASSAULT. 

ABOUT SIX HOURS AFTER THE ASSAULT, GONZALES WAS ORDERED TO THE
MASTER'S CABIN, WHERE HE REFUSED TO MAKE ANY STATEMENT ABOUT THE
ASSAULT.  LATER HE WAS ORDERED TO CLEAN THE SHIP'S HOSPITAL.  INSTEAD
OF DOING THAT, HE LEFT THE SHIP AGAINST ORDERS.  EARLY IN THE
AFTERNOON, GONZALES RETURNED TO THE SHIP WITH BOTTLES OF LIQUOR, AT
WHICH TIME THE CAPTAIN APPREHENDED HIM, TOOK THE BOTTLES AWAY, AND
PLACED HIM IN IRONS - A STEP WHICH THE CAPTAIN TESTIFIED HE SELDOM
USED. 

THE NEXT DAY, NOVEMBER 26, GONZALES LEFT THE VESSEL WITHOUT LEAVE AND
DID NOT RETURN UNTIL THE MORNING OF NOVEMBER 28, WHEN HE WAS LOGGED FOR
DISOBEDIENCE OF ORDERS AND FINED FOR BEING ABSENT WITHOUT LEAVE.  ON
RETURN OF THE MASON LYKES TO THE UNITED STATES, GONZALES WAS DISCHARGED
BY THE CAPTAIN, THOUGH, SINCE THAT TIME, HE HAS SERVED ON RESPONDENT'S
VESSELS. 

ON THE BASIS OF THESE FACTS, THE DISTRICT COURT FOUND THAT GONZALES
WAS "A PERSON OF DANGEROUS PROPENSITIES AND PROCLIVITIES" AT THE TIME
OF HIS ASSAULT ON PLAINTIFF; THAT GONZALES WAS "A PERSON OF VIOLENT
CHARACTER, BELLIGERENT DISPOSITION, EXCESSIVE DRINKING HABITS, DISPOSED
TO FIGHTING AND MAKING THREATS AND ASSAULTS."  112 F. SUPP., AT 179. 

WE THINK THE RECORD DOES NOT WARRANT REJECTION OF THE DISTRICT
COURT'S FINDINGS AND THAT THE FINDINGS WARRANT RECOVERY FOR BREACH OF
THE WARRANTY OF SEAWORTHINESS. 

THE WARRANTY OF SEAWORTHINESS IS A SPECIES OF LIABILITY WITHOUT
FAULT.  THE OSCEOLA, 189 U.S. 158; SEAS SHIPPING CO. V. SIERACKI, 328
U.S. 85, 90-94.  YET IT DOES NOT MEAN THAT THE SHIPOWNER IS LIABLE FOR
INJURIES "RESULTING FROM EVERY SAILORS' BRAWL," AS JUDGE LEARNED HAND
PUT IT IN JONES V. LYKES BROS. STEAMSHIP CO., 204 F.2D 815, 816.  IT
DOES NOT MEAN THAT THE OWNER IS LIABLE EVERY TIME A SEAMAN GETS DRUNK
AND DOES DAMAGE TO A MEMBER OF THE CREW.  IT DOES NOT MEAN THAT THE
OWNER IS LIABLE FOR INJURIES FROM ALL THE FISTICUFFS ON SHIPBOARD. 

"ALL MEN ARE TO SOME DEGREE IRASCIBLE; EVERY WORKMAN IS APT TO BE
ANGRY WHEN A FELLOW COMPLAINS OF HIS WORK TO THEIR COMMON SUPERIOR; AND
SOME WILL HARBOR THEIR RESENTMENT AND PROVOKE A QUARREL OVER IT EVEN
AFTER THE LAPSE OF SEVERAL HOURS.  SAILORS LEAD A ROUGH LIFE AND ARE
MORE APT TO USE THEIR FISTS THAN OFFICE EMPLOYEES; WHAT WILL SEEM TO
SEDENTARY AND PROTECTED PERSONS AN INSUFFICIENT PROVOCATION FOR A
PERSONAL ENCOUNTER, IS NOT THE MEASURE OF THE 'DISPOSITION' OF 'THE
ORDINARY MEN IN THE CALLING.'"  JONES V. LYKES BROS. STEAMSHIP CO.,
SUPRA, AT 817. 

THE WARRANTY OF SEAWORTHINESS DOES NOT MEAN THAT THE SHIP CAN WEATHER
ALL STORMS.  IT MERELY MEANS THAT "THE VESSEL IS REASONABLY FIT TO
CARRY THE CARGO."  THE SILVIA, 171 U.S. 462, 464; THE SOUTHWARK, 191
U.S. 1, 9.  IF IT IS NOT, THE OWNER IS LIABLE, IRRESPECTIVE OF ANY
FAULT ON HIS PART.   THE OSCEOLA, SUPRA; SEAS SHIPPING CO. V. SIERACKI,
SUPRA. 

WE SEE NO REASON TO DRAW A LINE BETWEEN THE SHIP AND THE GEAR ON THE
ONE HAND AND THE SHIP'S PERSONNEL ON THE OTHER.*  A SEAMAN WITH A
PROCLIVITY FOR ASSAULTING PEOPLE MAY, INDEED, BE A MORE DEADLY RISK
THAN A ROPE WITH A WEAK STRAND OR A HULL WITH A LATENT DEFECT.  THE
PROBLEM, AS WITH MANY ASPECTS OF THE LAW, IS ONE OF DEGREE.  WAS THE
ASSAULT WITHIN THE USUAL AND CUSTOMARY STANDARDS OF THE CALLING?  OR IS
IT A CASE OF A SEAMAN WITH A WICKED DISPOSITION, A PROPENSITY TO EVIL
CONDUCT, A SAVAGE AND VICIOUS NATURE?  IF IT IS THE FORMER, IT IS ONE
OF THE RISKS OF THE SEA THAT EVERY CREW TAKES.  IF THE SEAMAN HAS A
SAVAGE AND VICIOUS NATURE, THEN THE SHIP BECOMES A PERILOUS PLACE.  A
VESSEL BURSTING AT THE SEAMS MIGHT WELL BE A SAFER PLACE THAN ONE WITH
A HOMICIDAL MANIAC AS A CREW MEMBER. 

*SITUATIONS INVOLVING BREACH OF WARRANTY OF SEAWORTHINESS BY REASON
OF THE DISPOSITION OF A CREW MEMBER HAVE BEEN PRESENTED IN SEVERAL
RECENT DECISIONS.  RECOVERY WAS ALLOWED IN THOMPSON V. COASTAL OIL CO.,
119 F. SUPP. 838 (D.C.N.J.), REV'D ON OTHER GROUNDS, 221 F.2D 559.  THE
COURT FOLLOWED THE KEEN CASE IN HOLDING THAT A CREWMAN WHO TRIED TO
MURDER ONE OF HIS FELLOWS WITH A MEAT CLEAVER WAS NOT EQUAL IN
DISPOSITION TO THOSE OF HIS CALLING. 

IN STANKIEWICZ V. UNITED FRUIT CORP., 123 F. SUPP. 714 (S.D.N.Y.),
THE COURT DIRECTED A VERDICT FOR DEFENDANT ON A CAUSE OF ACTION FOR
BREACH OF WARRANTY OF SEAWORTHINESS, ON THE GROUND THAT THERE WAS NO
EVIDENCE THAT THE ASSAILANT WAS NOT EQUAL IN DISPOSITION TO MEN OF HIS
CALLING.  AS NOTED, THE SAME RESULT FOLLOWED IN THE JONES CASE, SUPRA,
WHERE THE COURT HELD THE TEST OF UNSEAWORTHINESS HAD NOT BEEN MET WHERE
A CREWMAN ASSAULTED ONE OF HIS FELLOWS FOLLOWING AN EARLIER ARGUMENT. 
AND SEE KELCEY V. TANKERS CO., 217 F.2D 541. 

WE DO NOT INTIMATE THAT GONZALES IS A MANIAC NOR THAT THAT EXTREME
NEED BE REACHED BEFORE LIABILITY FOR UNSEAWORTHINESS ARISES.  WE DO
THINK THAT THERE WAS SUFFICIENT EVIDENCE TO JUSTIFY THE DISTRICT COURT
IN HOLDING THAT GONZALES HAD CROSSED THE LINE, THAT HE HAD SUCH SAVAGE
DISPOSITION AS TO ENDANGER THE OTHERS WHO WORKED ON THE SHIP.  WE THINK
THE DISTRICT COURT WAS JUSTIFIED IN CONCLUDING THAT GONZALES WAS NOT
EQUAL IN DISPOSITION TO THE ORDINARY MEN OF THAT CALLING AND THAT THE
CREW WITH GONZALES AS A MEMBER WAS NOT COMPETENT TO MEET THE
CONTINGENCIES OF THE VOYAGE.  WE CONCLUDE THAT THERE WAS EVIDENCE TO
SUPPORT THE CAUSE OF ACTION FOR BREACH OF THE WARRANTY OF
SEAWORTHINESS.  THEREFORE WE DO NOT REACH THE QUESTION OF NEGLIGENCE. 
REVERSED. 

MR. JUSTICE REED CONCURS IN THE RESULT ON THE GROUND OF THE NEGLIGENCE
OF THE SHIP'S OFFICERS. 
..END :














SECURITIES AND EXCHANGE COMMISSION V. DREXEL & CO. 348 U.S. 341 


NO. 153.  ARGUED FEBRUARY 9, 1955 - DECIDED FEBRUARY 28, 1955 - 210 F.2D
585, REVERSED. 


THE SECURITIES AND EXCHANGE COMMISSION HELD TO HAVE JURISDICTION UNDER
SECS. 10, 11 AND 12 OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
TO PASS ON A FEE TO BE PAID BY ELECTRIC BOND & SHARE CO. TO DREXEL &
CO. IN CONNECTION WITH A REORGANIZATION PLAN FILED BY ITS SUBSIDIARY,
ELECTRIC POWER & LIGHT CORP., UNDER SEC. 11(E) OF THE ACT.  PP. 342
349. 

(A)  IT WAS NECESSARY BY THE TERMS OF THE ACT THAT BOND & SHARE
OBTAIN THE COMMISSION'S APPROVAL OF THE STEPS REQUIRED OF IT BY THE
PLAN OF REORGANIZATION.  P. 343. 

(B)  BOND & SHARE'S EXCHANGE OF ITS SECURITIES FOR NEW SECURITIES WAS
A "SALE" UNDER THE ACT; ITS RECEIPT OF NEW SECURITIES WAS AN
"ACQUISITION" UNDER THE ACT; ITS CASH PAYMENT IN SETTLEMENT OF THE
INTRASYSTEM CLAIMS WAS INCIDENT TO THE "SALE" AND "ACQUISITION"; AND
ALL THREE TRANSACTIONS WERE PARTS OF THE REORGANIZATION PLAN FOR WHICH
BOND & SHARE APPLIED FOR THE COMMISSION'S APPROVAL UNDER SECS. 10, 11
AND 12.  PP. 343-344. 

(C)  THE COMMISSION HAS POWER UNDER SECS. 10, 11 AND 12 TO FIX THE
FEES PAYABLE BY BOND & SHARE; AND IT WAS NOT PRECLUDED BY THE
PROVISIONS OF ITS ORDER ENTERED IN THE CONSOLIDATED PROCEEDINGS
HEREIN.  PP. 345-349. 

(D)  IT IS WITHIN THE AUTHORITY OF THE COMMISSION, IN THE INTEREST OF
ORDERLY ADMINISTRATION, TO DEFER CONSIDERATION OF ALL THE FEES, UNTIL
IT HAS TIME TO VIEW THE ENTIRE MATTER IN PERSPECTIVE AND EVALUATE THE
WORTH OF EACH CONTRIBUTION.  P. 347. 

SECURITIES AND EXCHANGE COMMISSION V. DREXEL & CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THE CASE IS WHETHER THE SECURITIES AND EXCHANGE
COMMISSION HAS JURISDICTION TO PASS ON A FEE TO BE PAID BY ELECTRIC
BOND & SHARE CO. TO DREXEL & CO. IN CONNECTION WITH A REORGANIZATION
PLAN FILED BY ITS SUBSIDIARY, ELECTRIC POWER & LIGHT CORP., UNDER SEC.
11(E) OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49 STAT. 803,
15 U.S.C. SEC. 79A ET SEQ. WE HOLD THAT THE COMMISSION DOES HAVE
JURISDICTION. 

THE PROBLEM ARISES OUT OF THE UNRAVELING AND REORGANIZATION OF THE
VAST EMPIRE OF BOND & SHARE, PURSUANT TO THE COMMAND OF THE ACT.  THE
PRESENT CASE IS ONE OF SEVERAL PHASES OF THE VARIOUS REORGANIZATION
PLANS ADOPTED TO BRING THE SYSTEM INTO COMPLIANCE.  (FN1)  THE INSTANT
PHASE OF THIS SYSTEM'S REORGANIZATION GREW OUT OF THE FILING OF A
VOLUNTARY PLAN OF REORGANIZATION UNDER SEC. 11(E) BY ELECTRIC. 

ELECTRIC OWNED OPERATING SUBSIDIARIES IN SEVERAL STATES AND IN
MEXICO.  THE PLAN PROVIDED THAT (1) ELECTRIC WOULD TRANSFER TO A NEW
HOLDING COMPANY, MIDDLE SOUTH UTILITIES, INC., ITS HOLDINGS IN THOSE
OPERATING SUBSIDIARIES, AS WELL AS CERTAIN OTHER ASSETS; (2) PREFERRED
STOCKS OF ELECTRIC WOULD BE RETIRED BY DISTRIBUTING TO THOSE SECURITY
HOLDERS SHARES OF MIDDLE SOUTH AND SHARES OF ANOTHER SUBSIDIARY OF
ELECTRIC; (3) THE REMAINING SHARES OF MIDDLE SOUTH AND THE OTHER
SUBSIDIARY WOULD BE DISTRIBUTED TO THE HOLDERS OF THE COMMON STOCK AND
OF THE WARRANTS OF ELECTRIC; AND (4) BOND & SHARE WOULD PAY ELECTRIC
$2,200,000 IN SETTLEMENT OF INTRASYSTEM CLAIMS. 

THE PLAN FILED BY ELECTRIC UNDER SEC. 11(E) REQUIRED BOND & SHARE TO
DO THREE THINGS:  FIRST, SELL OR EXCHANGE ITS HOLDINGS OF ELECTRIC
STOCK; SECOND, ACQUIRE IN EXCHANGE THE SHARES OF MIDDLE SOUTH AND THE
OTHER SUBSIDIARY; AND THIRD, PAY THE CASH AMOUNT IN SETTLEMENT OF THE
INTRASYSTEM CLAIMS.  IT WAS NOT SUFFICIENT FOR BOND & SHARE THAT
ELECTRIC GET APPROVAL FOR ITS PLAN UNDER SEC. 11(E).  IT WAS ALSO
NECESSARY BY THE TERMS OF THE ACT THAT BOND & SHARE ALSO GET THE
COMMISSION'S APPROVAL OF THE STEPS REQUIRED OF IT. 

BOND & SHARE'S EXCHANGE OF ITS SECURITIES FOR THE NEW SECURITIES WAS
A "SALE" UNDER THE ACT, FOR "SALE" INCLUDES "EXCHANGE."  SEC.
2(A)(23).  BOND & SHARE IS A REGISTERED HOLDING COMPANY.  NO "SALE" OF
SECURITIES CAN BE MADE BY A REGISTERED HOLDING COMPANY WITHOUT
COMMISSION APPROVAL.  THAT IS THE COMMAND OF SEC. 12 OF THE ACT.  (FN2)
THAT APPROVAL IS OBTAINED, AS SEC. 12 SHOWS, (FN3) BY A PROCEDURE
WHICH SUBMITS THE FEES IN CONNECTION WITH THE SALE TO THE SCRUTINY AND
APPROVAL OF THE COMMISSION. 

BOND & SHARE'S RECEIPT OF THE NEW SECURITIES WAS AN "ACQUISITION"
WITHIN THE MEANING OF THE ACT.  SEC. 2(A)(22).  THAT "ACQUISITION" WAS
MADE SUBJECT TO THE JURISDICTION OF THE COMMISSION BY SEC. 9(A).  (FN4)
THAT APPROVAL COULD BE HAD ONLY BY SUBMITTING THE "ACQUISITION" TO THE
COMMISSION'S SCRUTINY PURSUANT TO SEC. 10 OF THE ACT, A SCRUTINY THAT
INCLUDES SUPERVISION OF THE FEES PAID BY THE HOLDING COMPANY IN
CONNECTION WITH THE "ACQUISITION."  (FN5) 

BOND & SHARE'S CASH PAYMENT IN SETTLEMENT OF THE INTRASYSTEM CLAIM
WAS INCIDENT TO THE "SALE" UNDER SEC. 12 AND THE "ACQUISITION" UNDER
SEC. 10.  AND, AS NOTED, ALL THREE TRANSACTIONS BY BOND & SHARE WERE
PARTS OF THE PLAN FILED BY ELECTRIC UNDER SEC. 11(E). 

BOND & SHARE, THEREFORE, FILED AN APPLICATION PURSUANT TO SECS. 10,
11, AND 12 OF THE ACT, ASKING FOR THE COMMISSION'S APPROVAL OF THE
TRANSACTIONS WHICH THE PLAN REQUIRED OF IT.  (FN6) 

THE COMMISSION CONSOLIDATED THE PROCEEDINGS INVOLVING ELECTRIC'S PLAN
AND BOND & SHARE'S APPLICATION AND HEARD THEM TOGETHER, AND ON MARCH 7,
1949, ENTERED ONE ORDER IN THE CONSOLIDATED PROCEEDINGS, APPROVING
BOTH.  AS RESPECTS BOND & SHARE THE ORDER SAID, "IT IS FURTHER ORDERED
THAT THE APPLICATION-DECLARATION OF BOND AND SHARE REFERRED TO ABOVE BE
AND IT IS HEREBY GRANTED AND PERMITTED TO BECOME EFFECTIVE."  AS
RESPECTS THE PLAN OF ELECTRIC, THE COMMISSION IN THE SAME ORDER GAVE
ITS APPROVAL, SUBJECT TO ADDITIONAL TERMS AND CONDITIONS, THE SECOND OF
WHICH READS: 

"THE JURISDICTION BE AND HEREBY IS SPECIFICALLY RESERVED TO DETERMINE
THE REASONABLENESS AND APPROPRIATE ALLOCATION OF ALL FEES AND EXPENSES
AND OTHER REMUNERATION INCURRED OR TO BE INCURRED IN CONNECTION WITH
THE SAID PLAN, AS AMENDED, AND THE TRANSACTIONS INCIDENT THERETO, OTHER
THAN THE FAIRNESS AND REASONABLENESS OF THE FEES AND EXPENSES INCIDENT
TO THE STOCKHOLDERS' ACTIONS ENUMERATED IN PART II OF THE PLAN, AS
AMENDED." 

IT IS SAID, HOWEVER, THAT THAT RESERVATION WAS "THE RESERVATION
REGARDING  ...  THE FEES IN CONNECTION WITH ELECTRIC'S PLAN UNDER SEC.
11, AND CANNOT BE MADE TO SUPPLY THE FAILURE TO FIX OR TO RESERVE THE
MATTER OF FEES IN THE PROCEEDINGS UNDER SECS. 10 AND 12 IN RELATION TO
WHICH THEY WERE INCURRED." 

THERE ARE TWO ANSWERS TO THAT ARGUMENT.  FIRST, THE RESERVATION WAS
MADE IN THE SEC. 10 AND SEC. 12 PROCEEDINGS, FOR THEY WERE CONSOLIDATED
WITH THE SEC. 11 PROCEEDINGS AND ONE ORDER ENTERED IN ALL THREE. 
SECOND, THE ORDER IN THE CONSOLIDATED PROCEEDINGS RESERVED JURISDICTION
OVER THE FEES AND EXPENSES INCURRED NOT ONLY "IN CONNECTION WITH THE
SAID PLAN" BUT ALSO IN CONNECTION WITH "THE TRANSACTIONS INCIDENT
THERETO."  THE LATTER OBVIOUSLY INCLUDED THE MATTERS UNDER SEC. 10 AND
SEC. 12, FOR THEY WERE THE CHIEF COLLATERAL ONES BEFORE THE COMMISSION
AT THE TIME.  THE PARTIES SO UNDERSTOOD IT, FOR BOND & SHARE AND DREXEL
FILED PETITIONS FOR APPROVAL OF THE DREXEL FEE, INVOKING THE RESERVED
JURISDICTION OF THE COMMISSION.  THE COMMISSION HELD HEARINGS AND FIXED
A FEE FOR DREXEL (FN7) WHICH NEITHER DREXEL NOR BOND & SHARE THOUGHT
ADEQUATE.  (FN8)  THE COMMISSION APPLIED TO THE DISTRICT COURT FOR
APPROVAL OF THIS AND OTHER FEE AND EXPENSE ORDERS.  THE DISTRICT COURT
APPROVED.  THE COURT OF APPEALS AFFIRMED, EXCEPT FOR THE ORDER AS TO
DREXEL; AND AS TO THAT IT REVERSED "FOR LACK OF JURISDICTION IN THE
COMMISSION."  210 F.2D 585, 592. 

WE SEE NO SUCH INFIRMITY IN THE COMMISSION'S ORDER.  THE COMMISSION
PLAINLY HAS POWER UNDER SEC. 10 AND UNDER SEC. 12 TO FIX THE FEES
PAYABLE BY BOND & SHARE.  TO BE SURE, THE COMMISSION DID NOT FIX ANY
FEE, WHEN ON MARCH 7, 1949, IT ENTERED THE CONSOLIDATED ORDER APPROVING
THE APPLICATIONS UNDER SECS. 10, 11, AND 12.  THAT ORDER MERELY
RESERVED JURISDICTION TO DETERMINE THE REASONABLENESS OF THE FEES. 
THERE IS A SUGGESTION THAT NO RESERVATION OF JURISDICTION OVER THE FEES
IS POSSIBLE, AT LEAST SO FAR AS SEC. 10 IS CONCERNED, SINCE SEC. 10
DIRECTS THE COMMISSION TO APPROVE THE PLAN UNLESS IT FINDS THE FEES
UNREASONABLE.  BUT THE RESERVATION BY THE COMMISSION OF JURISDICTION
OVER THE FEES IS MERELY A MEANS OF ASSURING THAT THEY WILL NOT BE
UNREASONABLE.  CERTAINLY, THE COMMISSION NEED NOT HOLD AN ENTIRE PLAN
IN ABEYANCE UNTIL IT COMPLETES HEARINGS ON THE FEES TO BE PAID IN
CONNECTION WITH ONE PHASE OF IT.  WE SEE NO REASON WHY THE COMMISSION,
IN THE INTEREST OF ORDERLY ADMINISTRATION, CANNOT DEFER CONSIDERATION
OF ALL THE FEES, UNTIL IT HAS TIME TO VIEW THE ENTIRE MATTER IN
PERSPECTIVE AND EVALUATE THE WORTH OF EACH CONTRIBUTION.  WE WOULD HAVE
TO READ THE ACT WITH AN EXTREMELY HOSTILE EYE TO DENY THE COMMISSION
THAT ADMINISTRATIVE LEEWAY. 

THE ERROR OF THE COURT OF APPEALS WAS IN OVERLOOKING THE ESSENTIAL
AND CRITICAL ROLE THAT SECS. 10 AND 12 PLAY IN THE CASE AND IN RELYING
ON SEC. 11(E) ALONE. 

THE CONTRAST BETWEEN SECS. 11(E) AND 11(F) IS PLAIN, SO FAR AS
JURISDICTION OVER FEES IS CONCERNED.  SECTION 11(F) CONTAINS AN EXPRESS
PROVISION CONCERNING FEES.  THE SUBSECTION, APPLICABLE TO COURT
PROCEEDINGS WHERE A RECEIVER OR TRUSTEE HAS BEEN APPOINTED, MAKES ALL
FEES "TO WHOMSOEVER PAID" SUBJECT TO THE APPROVAL OF THE COMMISSION. 
CF. LEIMAN V. GUTTMAN, 336 U.S. 1.  SECTION 11(E) CONTAINS NO SUCH
PROVISION.  IT MERELY DIRECTS THE COMMISSION TO APPROVE THE PLAN, IF IT
FINDS THE PLAN "FAIR AND EQUITABLE TO THE PERSONS AFFECTED."  THE
AMOUNT OF FEES TO BE PAID BY ELECTRIC PLAINLY WOULD BE RELEVANT TO THE
QUESTION WHETHER THE PLAN WAS FAIR AND EQUITABLE.  SEE IN RE PUBLIC
SERVICE CORP. OF NEW JERSEY, 211 F.2D 231, 232.  PAYMENT OF EXCESSIVE
FEES WAS ONE OF THE HISTORIC ABUSES OF THE REORGANIZATION PROCEDURE
WHEREBY UTILITY COMPANIES WERE MILKED, AN ABUSE THE PUBLIC UTILITY
HOLDING COMPANY ACT SOUGHT TO CORRECT.  79 CONG. REC. 4607; S. REP. NO.
621, 74TH CONG., 1ST SESS. 33.  QUESTIONS OF FEES PAYABLE BY AND TO
PROTECTIVE COMMITTEES PRESENT SPECIAL CONSIDERATIONS IRRELEVANT HERE
AND WE PUT THEM ASIDE.  CF. LEIMAN V. GUTTMAN, SUPRA.  DIFFERENT
CONSIDERATIONS COME INTO PLAY WHEN FEES PAYABLE BY INDIVIDUAL SECURITY
HOLDERS TO THEIR OWN COUNSEL ARE INVOLVED.  IT WOULD SEEM, FOR EXAMPLE,
THAT THE AMOUNT WHICH A STOCKHOLDER, SAY, AGREED TO PAY HIS LAWYER FOR
REPRESENTING HIM IN A SEC. 11(E) PROCEEDING WOULD BE NO BUSINESS OF THE
COMMISSION.  THE AMOUNT OF THAT FEE WOULD SEEM TO HAVE NO DIRECT
BEARING ON THE FAIRNESS OF THE PLAN. 

BUT THE FEES PAYABLE BY THE REGISTERED HOLDING COMPANY IN CONNECTION
WITH THE REORGANIZATION OF ITS SUBSIDIARY OR AFFILIATE ARE, OR MAY BE,
DIFFERENT.  AT LEAST CONGRESS THOUGHT SO, FOR CONGRESS WAS EXPLICIT IN
MAKING THE FEES PAYABLE BY THEM, IN CONNECTION WITH THE TRANSACTIONS
COVERED BY SEC. 10 AND BY SEC. 12, SUBJECT TO COMMISSION APPROVAL. 
CONGRESS HAD BEFORE IT THE DETAILED RECORD OF HOLDING COMPANY
ACTIVITIES AND KNEW THAT MANY OF THEM HAD A PROCLIVITY FOR PREDATORY
PRACTICES.  THE FEES WERE NOT ONLY LARGE; THEY WERE OFTEN LOADED ON
AFFILIATED COMPANIES (FN9) AND CONCEALED IN INTRASYSTEM ACCOUNTS. 
CONGRESS DECIDED TO PUT AN END TO THE WORST OF THESE PRACTICES AND
CONTROL THE CRITICAL ONES.  WHEN IT CAME TO THE INTRICACIES OF HOLDING
COMPANY FINANCE, CONGRESS EXPRESSED THE DESIRE TO HAVE THE AMOUNT OF
THE FEES PAID BROUGHT TO LIGHT AND TO HAVE THE COMMISSION DECIDE WHO
PAYS THEM AND WHAT AMOUNTS ARE REASONABLE.  WE CANNOT BE FAITHFUL TO
THAT STATUTORY DESIGN WITHOUT GRANTING THE COMMISSION THE JURISDICTION
ASSERTED HERE.  REVERSED. 

FN1  FOR VARIOUS PHASES OF THE REORGANIZATION OF THIS HOLDING COMPANY
SYSTEM, SEE:  (1) ELECTRIC BOND & SHARE CO., 9 S.E.C. 978; ID., 12
S.E.C. 392; ID., 20 S.E.C. 615; ID., 21 S.E.C. 143; ID., 22 S.E.C. 866;
(2) ELECTRIC BOND & SHARE CO., 11 S.E.C. 1146, AFF'D SUB NOM. AMERICAN
POWER & LIGHT CO. V. SECURITIES AND EXCHANGE COMMISSION, 141 F.2D 606,
329 U.S. 90; AMERICAN POWER & LIGHT CO., 21 S.E.C. 191; (3) UNITED GAS
CORP., 16 S.E.C. 531, AFF'D SUB NOM. IN RE UNITED GAS CORP., 58 F.
SUPP. 501, 162 F.2D 409; AND (4) ELECTRIC BOND & SHARE CO., 20 S.E.C.
786. 

FN2  SECTION 12(D) PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY REGISTERED HOLDING COMPANY, BY USE OF
THE MAILS OR ANY MEANS OR INSTRUMENTALITY OF INTERSTATE COMMERCE, OR
OTHERWISE, TO SELL ANY SECURITY WHICH IT OWNS OF ANY PUBLIC-UTILITY
COMPANY, OR ANY UTILITY ASSETS, IN CONTRAVENTION OF SUCH RULES AND
REGULATIONS OR ORDERS REGARDING THE CONSIDERATION TO BE RECEIVED FOR
SUCH SALE, MAINTENANCE OF COMPETITIVE CONDITIONS, FEES AND COMMISSIONS,
ACCOUNTS, DISCLOSURE OF INTEREST, AND SIMILAR MATTERS AS THE COMMISSION
DEEMS NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE
PROTECTION OF INVESTORS OR CONSUMERS OR TO PREVENT THE CIRCUMVENTION OF
THE PROVISIONS OF THIS TITLE OR THE RULES, REGULATIONS, OR ORDERS
THEREUNDER." 

FN3  SUPRA, NOTE 2. 

FN4  SECTION 9(A) PROVIDES IN RELEVANT PART: 

"UNLESS THE ACQUISITION HAS BEEN APPROVED BY THE COMMISSION UNDER

"(1)  FOR ANY REGISTERED HOLDING COMPANY OR ANY SUBSIDIARY COMPANY
THEREOF, BY USE OF THE MAILS OR ANY MEANS OR INSTRUMENTALITY OF
INTERSTATE COMMERCE, OR OTHERWISE, TO ACQUIRE, DIRECTLY OR INDIRECTLY,
ANY SECURITIES OR UTILITY ASSETS OR ANY OTHER INTEREST IN ANY
BUSINESS." 

FN5  SECTION 10(B) PROVIDES IN RELEVANT PART: 

"IF THE REQUIREMENTS OF SUBSECTION (F) ARE SATISFIED, THE COMMISSION
SHALL APPROVE THE ACQUISITION UNLESS THE COMMISSION FINDS THAT: 

     *         *         *         *         * 

"(2)  IN CASE OF THE ACQUISITION OF SECURITIES OR UTILITY ASSETS, THE
CONSIDERATION, INCLUDING ALL FEES, COMMISSIONS, AND OTHER REMUNERATION,
TO WHOMSOEVER PAID, TO BE GIVEN, DIRECTLY OR INDIRECTLY, IN CONNECTION
WITH SUCH ACQUISITION IS NOT REASONABLE OR DOES NOT BEAR A FAIR
RELATION TO THE SUMS INVESTED IN OR THE EARNING CAPACITY OF THE UTILITY
ASSETS TO BE ACQUIRED OR THE UTILITY ASSETS UNDERLYING THE SECURITIES
TO BE ACQUIRED; ...  ." 

FN6  A PETITION FOR REHEARING STATES THAT ELECTRIC IS NOT A "PUBLIC
UTILITY COMPANY" WITHIN THE MEANING OF THE ACT AND THEREFORE SEC. 12(D)
IS INAPPLICABLE.  WE DO NOT PREJUDICE THAT POSITION BY THIS OPINION,
FOR WHETHER OR NOT ELECTRIC IS A "PUBLIC UTILITY COMPANY," SEC. 12 OF
THE ACT IS CONCEDEDLY APPLICABLE.  SECTION 12(C) PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY REGISTERED HOLDING COMPANY OR ANY
SUBSIDIARY COMPANY THEREOF, BY USE OF THE MAILS OR ANY MEANS OR
INSTRUMENTALITY OF INTERSTATE COMMERCE, OR OTHERWISE, TO DECLARE OR PAY
ANY DIVIDEND ON ANY SECURITY OF SUCH COMPANY OR TO ACQUIRE, RETIRE, OR
REDEEM ANY SECURITY OF SUCH COMPANY, IN CONTRAVENTION OF SUCH RULES AND
REGULATIONS OR ORDERS AS THE COMMISSION DEEMS NECESSARY OR APPROPRIATE
TO PROTECT THE FINANCIAL INTEGRITY OF COMPANIES IN HOLDING-COMPANY
SYSTEMS, TO SAFEGUARD THE WORKING CAPITAL OF PUBLIC-UTILITY COMPANIES,
TO PREVENT THE PAYMENT OF DIVIDENDS OUT OF CAPITAL OR UNEARNED SURPLUS,
OR TO PREVENT THE CIRCUMVENTION OF THE PROVISIONS OF THIS TITLE OR THE
RULES, REGULATIONS, OR ORDERS THEREUNDER."    SECTION 12(F) PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY REGISTERED HOLDING COMPANY OR
SUBSIDIARY COMPANY THEREOF, BY USE OF THE MAILS OR ANY MEANS OR
INSTRUMENTALITY OF INTERSTATE COMMERCE, OR OTHERWISE, TO NEGOTIATE,
ENTER INTO, OR TAKE ANY STEP IN THE PERFORMANCE OF ANY TRANSACTION NOT
OTHERWISE UNLAWFUL UNDER THIS TITLE, WITH ANY COMPANY IN THE SAME
HOLDING-COMPANY SYSTEM OR WITH ANY AFFILIATE OF A COMPANY IN SUCH
HOLDING-COMPANY SYSTEM IN CONTRAVENTION OF SUCH RULES AND REGULATIONS
OR ORDERS REGARDING REPORTS, ACCOUNTS, COSTS, MAINTENANCE OF
COMPETITIVE CONDITIONS, DISCLOSURE OF INTEREST, DURATION OF CONTRACTS,
AND SIMILAR MATTERS AS THE COMMISSION DEEMS NECESSARY OR APPROPRIATE IN
THE PUBLIC INTEREST OR FOR THE PROTECTION OF INVESTORS OR CONSUMERS OR
TO PREVENT THE CIRCUMVENTION OF THE PROVISIONS OF THIS TITLE OR THE
RULES AND REGULATIONS THEREUNDER." 

THE BROAD POWERS GRANTED THE COMMISSION UNDER THESE PROVISIONS ARE
PLAINLY ADEQUATE TO GIVE IT THE CONTROL IT RESERVED IN THIS CASE OVER
THE FEES INCIDENT TO THE EXCHANGE OF THE OLD SECURITIES. 

FN7  BOND & SHARE ASKED THAT IT BE REIMBURSED BY ELECTRIC FOR THIS
FEE.  THE COMMISSION DENIED REIMBURSEMENT, SAYING THAT BOND & SHARE'S
SERVICES IN THE PROCEEDINGS "WERE NOT SERVICES MERELY DESIGNATED TO
BRING ELECTRIC INTO COMPLIANCE WITH THE COMMISSION'S ORDER BUT WERE
ADDITIONALLY, IF NOT PRIMARILY, STEPS DESIGNED TO SIMPLIFY THE BOND AND
SHARE SYSTEM AND BOND AND SHARE ITSELF AT THE APEX OF THAT SYSTEM  ...
.  ANY PLAN FOR THE COMPLIANCE OF THE SUBHOLDING COMPANIES MUST
NECESSARILY HAVE BEEN AS A STEP TOWARD THE ULTIMATE RESOLUTION OF BOND
AND SHARE'S OVERALL SECTION 11 PROBLEMS WHICH WERE ITS PRIMARY
CONCERN."  BOND & SHARE TOOK NO STEP TO CONTEST THAT ACTION. 

FN8  BOND & SHARE ASKED $100,000 FOR DREXEL.  THE COMMISSION AWARDED
$50,000. 

FN9  WHEN BOND & SHARE ASKED THAT ELECTRIC REIMBURSE IT FOR THE FEES
PAID DREXEL (SEE NOTE 7, SUPRA), IT WAS FOLLOWING A TRADITIONAL HOLDING
COMPANY PRACTICE OF USING THE AFFILIATED COMPANIES AS CONVENIENT
POCKETBOOKS OF THE SYSTEM. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

FULLY AWARE OF THE COMPLICATED INTERRELATIONS OF HOLDING-COMPANY
SYSTEMS, CONGRESS DID NOT ENACT A SCHEME FOR SEVERANCE OF ALL
INTERCORPORATE RELATIONS AMONG PUBLIC UTILITY INTERESTS.  INSTEAD,
SPECIFIC PROVISIONS WERE DEVISED AGAINST SPECIFIC ABUSES AND THE
SECURITIES AND EXCHANGE COMMISSION WAS GIVEN SPECIFIC AUTHORITY TO
EFFECTUATE THE DEFINED FUNCTIONS OF THESE DIFFERENT PROVISIONS. 
ENFORCEMENT OF THE ACT ENTAILED AUTHORIZATION BY THE COMMISSION OF
REORGANIZATION TO SECURE SIMPLIFICATION OF A HOLDING-COMPANY SYSTEM AND
REGULATION OF TRANSACTIONS INVOLVING ACQUISITIONS AND DISPOSITIONS. 
DULY MINDFUL OF THE ABUSES OF EXCESSIVE FEES IN THE CONDUCT OF INTER
COMPANY AFFAIRS, CONGRESS EFFECTIVELY EQUIPPED THE COMMISSION WITH
POWER TO REGULATE FEES IN THE VARIOUS PROCEEDINGS WHICH REQUIRED
APPROVAL BY THE COMMISSION.  BUT CONGRESS PARTICULARIZED.  IT DID NOT
VEST THIS FEE-FIXING AUTHORITY OF THE COMMISSION IN A COMPREHENSIVE
PROVISION.  IT DEALT WITH THE PROBLEM DISTRIBUTIVELY.  IT WAS EXPLICIT
IN RELATING THE POWER TO FIX FEES TO THE PARTICULAR PROCEEDING. 

THE MATTER BEFORE US RELATES TO THE FIXING OF FEES IN A PROCEEDING
UNDER SEC. 11 OF THE HOLDING COMPANY ACT.  THAT WAS A PROCEEDING FOR
THE REORGANIZATION OF ELECTRIC, A SUBSIDIARY OF BOND AND SHARE.  THAT
ELECTRIC AS A CONDITION TO APPROVAL OF ITS PLAN FOR REORGANIZATION.  TO
BE SURE, ELECTRIC'S PLAN INVOLVED THE PARENT, BOND AND SHARE, AND THE
CONFIRMATION OF ELECTRIC'S PLAN REQUIRED APPROVAL BY THE COMMISSION OF
"ACQUISITION" BY BOND AND SHARE OF NEW SECURITIES.  THAT APPROVAL UNDER
SEC. 10 SUBJECTED THE FEES WHICH BOND AND SHARE COULD PAY DREXEL TO THE
SCRUTINY AND APPROVAL OF THE COMMISSION.  THE CONSUMMATION OF
ELECTRIC'S PLAN LIKEWISE INVOLVED A "SALE" BY BOND AND SHARE UNDER SEC.
12.  AGAIN, THAT SECTION MADE BOND AND SHARE'S PAYMENT OF FEES TO
DREXEL SUBJECT TO THE COMMISSION'S APPROVAL.  THE COMMISSION GAVE THE
REQUIRED APPROVAL TO THE "ACQUISITION" AND "SALE" UNDER SECS. 10 AND
12, RESPECTIVELY, WITHOUT PASSING ON THE FEE PAYABLE BY BOND AND SHARE
OR RESERVING THE QUESTION OF THE PROPRIETY OF SUCH FEES.  THE
RESERVATION REGARDING FEES IN THE PROCEEDINGS OF ELECTRIC WAS
APPLICABLE TO THE FEES IN CONNECTION WITH ELECTRIC'S PLAN UNDER SEC.
11, AND CANNOT BE MADE TO SUPPLY THE FAILURE TO FIX OR TO RESERVE THE
MATTER OF FEES IN THE PROCEEDINGS UNDER SECS. 10 AND 12 IN RELATION TO
WHICH THEY WERE INCURRED. 

THE HOLDING COMPANY ACT OF 1935 IS A RETICULATED STATUTE, NOT A HODGE
PODGE.  TO OBSERVE ITS EXPLICIT PROVISIONS IS TO RESPECT THE PURPOSE OF
CONGRESS AND THE CARE WITH WHICH IT WAS FORMULATED. 

I WOULD AFFIRM THE COURT OF APPEALS. 
..END :



















TEE-HIT-TON INDIANS V. UNITED STATES 348 U.S. 272 


NO. 43.  ARGUED NOVEMBER 12, 1954 - DECIDED FEBRUARY 7, 1955 - 128 CT.
CL. 82, 120 F. SUPP. 202, AFFIRMED. 


THE TEE-HIT-TON INDIANS, AN IDENTIFIABLE GROUP OF AMERICAN INDIANS
BELONGING TO THE TLINGIT TRIBE OF ALASKAN INDIANS, HELD NOT ENTITLED TO
COMPENSATION UNDER THE FIFTH AMENDMENT FOR THE TAKING BY THE UNITED
STATES OF CERTAIN TIMBER FROM ALASKAN LANDS IN AND NEAR THE TONGASS
NATIONAL FOREST ALLEGEDLY BELONGING TO THE TEE-HIT-TON INDIANS.  PP.
273-291. 

1.  NEITHER SEC. 8 OF THE ORGANIC ACT FOR ALASKA OF MAY 17, 1884, NOR
SEC. 27 OF THE ACT OF JUNE 6, 1900, PROVIDING FOR A CIVIL GOVERNMENT
FOR ALASKA, CONSTITUTED A RECOGNITION BY CONGRESS OF ANY PERMANENT
RIGHTS OF INDIANS IN ALASKAN LANDS OCCUPIED BY THEM; AND THIS POLICY OF
NONRECOGNITION WAS MAINTAINED AND REFLECTED BY CONGRESS IN THE JOINT
RESOLUTION OF AUGUST 8, 1947, AUTHORIZING THE SALE OF SUCH TIMBER
WITHOUT RECOGNIZING OR DENYING THE VALIDITY OF ANY CLAIMS OF POSSESSORY
RIGHTS TO LAND OR TIMBER.  PP. 277-279. 

2.  PERMISSIVE INDIAN OCCUPANCY MAY BE EXTINGUISHED BY CONGRESS IN
ITS OWN DISCRETION WITHOUT COMPENSATION.  JOHNSON V. MCINTOSH, 8
WHEAT.  543; BEECHER V. WETHERBY, 95 U.S. 517; UNITED STATES V. SANTA
FE PACIFIC R. CO., 314 U.S. 339.  PP. 279-282. 

3.  THE RECOVERY IN UNITED STATES V. TILLAMOOKS, 329 U.S. 40, 341
U.S. 48, WAS BASED UPON STATUTORY DIRECTION TO PAY FOR THE ABORIGINAL
TITLE IN THE SPECIAL JURISDICTIONAL ACT TO EQUALIZE THE TILLAMOOKS WITH
THE NEIGHBORING TRIBES, RATHER THAN UPON A HOLDING THAT THERE HAD BEEN
A COMPENSABLE TAKING UNDER THE FIFTH AMENDMENT.  PP. 282-285. 

4.  THE RECORD DOES NOT SUSTAIN PETITIONERS' CONTENTION THAT THEIR
STAGE OF CIVILIZATION, THEIR CONCEPT OF OWNERSHIP OF PROPERTY AND THEIR
TREATMENT BY RUSSIA TAKE THEM OUT OF THE RULE APPLICABLE TO THE INDIANS
OF THE STATES.  ON THE CONTRARY, IT SUSTAINS THE FINDING THAT THEIR USE
OF THEIR LANDS WAS LIKE THE USE OF THE NOMADIC TRIBES OF THE STATES
INDIANS, AND THERE WAS NO EVIDENCE THAT THE RUSSIAN HANDLING OF THE
INDIAN LAND PROBLEM WAS DIFFERENT FROM OURS.  PP. 285-288. 

5.  INDIAN OCCUPANCY, NOT SPECIFICALLY RECOGNIZED AS OWNERSHIP BY
ACTION AUTHORIZED BY CONGRESS, MAY BE EXTINGUISHED BY THE GOVERNMENT
WITHOUT COMPENSATION.  PP. 288-291. 

TEE-HIT-TON INDIANS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE RESTS UPON A CLAIM UNDER THE FIFTH AMENDMENT BY PETITIONER,
AN IDENTIFIABLE GROUP OF AMERICAN INDIANS OF BETWEEN 60 AND 70
INDIVIDUALS RESIDING IN ALASKA, FOR COMPENSATION FOR A TAKING BY THE
UNITED STATES OF CERTAIN TIMBER FROM ALASKAN LANDS ALLEGEDLY BELONGING
TO THE GROUP.  (FN1) THE AREA CLAIMED IS SAID TO CONTAIN OVER 350,000
ACRES OF LAND AND 150 SQUARE MILES OF WATER.  THE TEE-HIT-TONS, A CLAN
OF THE TLINGIT TRIBE, BROUGHT THIS SUIT IN THE COURT OF CLAIMS UNDER 28
U.S.C. SEC. 1505.  THE COMPENSATION CLAIMED DOES NOT ARISE FROM ANY
STATUTORY DIRECTION TO PAY.  PAYMENT, IF IT CAN BE COMPELLED, MUST BE
BASED UPON A CONSTITUTIONAL RIGHT OF THE INDIANS TO RECOVER.  THIS IS
NOT A CASE THAT IS CONNECTED WITH ANY PHASE OF THE POLICY OF THE
CONGRESS, CONTINUED THROUGHOUT OUR HISTORY, TO EXTINGUISH INDIAN TITLE
THROUGH NEGOTIATION RATHER THAN BY FORCE, AND TO GRANT PAYMENTS FROM
THE PUBLIC PURSE TO NEEDY DESCENDANTS OF EXPLOITED INDIANS.  THE
LEGISLATION IN SUPPORT OF THAT POLICY HAS RECEIVED CONSISTENT
INTERPRETATION FROM THIS COURT IN SYMPATHY WITH ITS COMPASSIONATE
PURPOSE.  (FN2) 

UPON PETITIONER'S MOTION, THE COURT OF CLAIMS UNDER ITS RULE 38(B)
(FN3) DIRECTED A SEPARATE TRIAL WITH RESPECT TO CERTAIN SPECIFIC ISSUES
OF LAW AND ANY RELATED ISSUES OF FACT ESSENTIAL TO THE PROPER
ADJUDICATION OF THE LEGAL ISSUES.  (FN4)  ONLY THOSE PERTINENT TO THE
NATURE OF THE PETITIONER'S INTEREST, IF ANY, IN THE LANDS ARE HERE FOR
REVIEW.  SUBSTANTIAL EVIDENCE, LARGELY DOCUMENTARY, RELEVANT TO THESE
LEGAL ISSUES WAS INTRODUCED BY BOTH PARTIES BEFORE A COMMISSIONER WHO
THEREUPON MADE FINDINGS OF FACT.  THE COURT OF CLAIMS ADOPTED THESE
FINDINGS AND HELD THAT PETITIONER WAS AN IDENTIFIABLE GROUP OF AMERICAN
INDIANS RESIDING IN ALASKA; THAT ITS INTEREST IN THE LANDS PRIOR TO
PURCHASE OF ALASKA BY THE UNITED STATES IN 1867 WAS "ORIGINAL INDIAN
TITLE" OR "INDIAN RIGHT OF OCCUPANCY."  TEE-HIT-TON INDIANS V. UNITED
STATES, 128 CT. CL. 82, 85, 87, 120 F. SUPP. 202, 203-204, 205.  IT WAS
FURTHER HELD THAT IF SUCH ORIGINAL INDIAN TITLE SURVIVED THE TREATY OF
1867, 15 STAT. 539, ARTS. III AND VI, BY WHICH RUSSIA CONVEYED ALASKA
TO THE UNITED STATES, SUCH TITLE WAS NOT SUFFICIENT BASIS TO MAINTAIN
THIS SUIT AS THERE HAD BEEN NO RECOGNITION BY CONGRESS OF ANY LEGAL
RIGHTS IN PETITIONER TO THE LAND IN QUESTION.  128 CT. CL., AT 92, 120
F. SUPP., AT 208.  THE COURT SAID THAT NO RIGHTS INURED TO PLAINTIFF BY
VIRTUE OF LEGISLATION BY CONGRESS.  AS A RESULT OF THESE CONCLUSIONS,
NO ANSWER WAS NECESSARY TO QUESTIONS 2, 5 AND 6.  THE TEE-HIT-TONS'
PETITION WAS THEREAFTER DISMISSED. 

BECAUSE OF GENERAL AGREEMENT AS TO THE IMPORTANCE OF THE QUESTION OF
COMPENSATION FOR CONGRESSIONALLY APPROVED TAKING OF LANDS OCCUPIED IN
ALASKA UNDER ABORIGINAL INDIAN USE AND CLAIM OF OWNERSHIP, (FN5) AND
THE CONFLICT CONCERNING THE EFFECT OF FEDERAL LEGISLATION PROTECTING
INDIAN OCCUPATION BETWEEN THIS DECISION OF THE COURT OF CLAIMS, 128 CT.
CL., AT 90, 120 F. SUPP., AT 206-207, AND THE DECISION OF THE COURT OF
APPEALS FOR THE NINTH CIRCUIT IN MILLER V. UNITED STATES, 159 F.2D 997,
1003, WE GRANTED CERTIORARI, 347 U.S. 1009. 

THE ALASKAN AREA IN WHICH PETITIONER CLAIMS A COMPENSABLE INTEREST IS
LOCATED NEAR AND WITHIN THE EXTERIOR LINES OF THE TONGASS NATIONAL
FOREST.  BY JOINT RESOLUTION OF AUGUST 8, 1947, 61 STAT. 920, THE
SECRETARY OF AGRICULTURE WAS AUTHORIZED TO CONTRACT FOR THE SALE OF
NATIONAL FOREST TIMBER LOCATED WITHIN THIS NATIONAL FOREST
"NOTWITHSTANDING ANY CLAIM OF POSSESSORY RIGHTS."  (FN6)  THE
RESOLUTION DEFINES "POSSESSORY RIGHTS" (FN7) AND PROVIDES FOR ALL
RECEIPTS FROM THE SALE OF TIMBER TO BE MAINTAINED IN A SPECIAL ACCOUNT
IN THE TREASURY UNTIL THE TIMBER AND LAND RIGHTS ARE FINALLY
DETERMINED.  (FN8)  SECTION 3(B) OF THE RESOLUTION PROVIDES: 

"NOTHING IN THIS RESOLUTION SHALL BE CONSTRUED AS RECOGNIZING OR
DENYING THE VALIDITY OF ANY CLAIMS OF POSSESSORY RIGHTS TO LANDS OR
TIMBER WITHIN THE EXTERIOR BOUNDARIES OF THE TONGASS NATIONAL FOREST." 

THE SECRETARY OF AGRICULTURE, ON AUGUST 20, 1951, PURSUANT TO THIS
AUTHORITY CONTRACTED FOR SALE TO A PRIVATE COMPANY OF ALL MERCHANTABLE
TIMBER IN THE AREA CLAIMED BY PETITIONER.  THIS IS THE SALE OF TIMBER
WHICH PETITIONER ALLEGES CONSTITUTES A COMPENSABLE TAKING BY THE UNITED
STATES OF A PORTION OF ITS PROPRIETARY INTEREST IN THE LAND. 

THE PROBLEM PRESENTED IS THE NATURE OF THE PETITIONER'S INTEREST IN
THE LAND, IF ANY.  PETITIONER CLAIMS A "FULL PROPRIETARY OWNERSHIP" OF
THE LAND; OR, IN THE ALTERNATIVE, AT LEAST A "RECOGNIZED" RIGHT TO
UNRESTRICTED POSSESSION, OCCUPATION AND USE.  EITHER OWNERSHIP OR
RECOGNIZED POSSESSION, PETITIONER ASSERTS, IS COMPENSABLE.  IF IT HAS A
FEE SIMPLE INTEREST IN THE ENTIRE TRACT, IT HAS AN INTEREST IN THE
TIMBER AND ITS SALE IS A PARTIAL TAKING OF ITS RIGHT TO "POSSESS, USE
AND DISPOSE OF IT."  UNITED STATES V. GENERAL MOTORS CORP., 323 U.S.
373, 378.  IT IS PETITIONER'S CONTENTION THAT ITS TRIBAL PREDECESSORS
HAVE CONTINUALLY CLAIMED, OCCUPIED AND USED THE LAND FROM TIME
IMMEMORIAL; THAT WHEN RUSSIA TOOK ALASKA, THE TLINGITS HAD A WELL
DEVELOPED SOCIAL ORDER WHICH INCLUDED A CONCEPT OF PROPERTY OWNERSHIP;
THAT RUSSIA WHILE IT POSSESSED ALASKA IN NO MANNER INTERFERED WITH
THEIR CLAIM TO THE LAND; THAT CONGRESS HAS BY SUBSEQUENT ACTS CONFIRMED
AND RECOGNIZED PETITIONER'S RIGHT TO OCCUPY THE LAND PERMANENTLY AND
THEREFORE THE SALE OF THE TIMBER OFF SUCH LANDS CONSTITUTES A TAKING
PRO TANTO OF ITS ASSERTED RIGHTS IN THE AREA. 

THE GOVERNMENT DENIES THAT PETITIONER HAS ANY COMPENSABLE INTEREST. 
IT ASSERTS THAT THE TEE-HIT-TONS' PROPERTY INTEREST, IF ANY, IS MERELY
THAT OF THE RIGHT TO THE USE OF THE LAND AT THE GOVERNMENT'S WILL; THAT
CONGRESS HAS NEVER RECOGNIZED ANY LEGAL INTEREST OF PETITIONER IN THE
LAND AND THEREFORE WITHOUT SUCH RECOGNITION NO COMPENSATION IS DUE THE
PETITIONER FOR ANY TAKING BY THE UNITED STATES. 

1.  RECOGNITION.  - THE QUESTION OF RECOGNITION MAY BE DISPOSED OF
SHORTLY.  WHERE THE CONGRESS BY TREATY OR OTHER AGREEMENT HAS DECLARED
THAT THEREAFTER INDIANS WERE TO HOLD THE LANDS PERMANENTLY,
COMPENSATION MUST BE PAID FOR SUBSEQUENT TAKING.  (FN9)  THE PETITIONER
CONTENDS THAT CONGRESS HAS SUFFICIENTLY "RECOGNIZED" ITS POSSESSORY
RIGHTS IN THE LAND IN QUESTION SO AS TO MAKE ITS INTEREST COMPENSABLE. 
PETITIONER POINTS SPECIFICALLY TO TWO STATUTES TO SUSTAIN THIS
CONTENTION.  THE FIRST IS SEC. 8 OF THE ORGANIC ACT FOR ALASKA OF MAY
17, 1884, 23 STAT. 24.  (FN10)  THE SECOND IS SEC. 27 OF THE ACT OF
JUNE 6, 1900, WHICH WAS TO PROVIDE FOR A CIVIL GOVERNMENT FOR ALASKA,
31 STAT. 321, 330.  (FN11)  THE COURT OF APPEALS IN THE MILLER CASE,
SUPRA, FELT THAT THESE ACTS CONSTITUTED RECOGNITION OF INDIAN
OWNERSHIP.  159 F.2D 997, 1002-1003. 

WE HAVE CAREFULLY EXAMINED THESE STATUTES AND THE PERTINENT
LEGISLATIVE HISTORY AND FIND NOTHING TO INDICATE ANY INTENTION BY
CONGRESS TO GRANT TO THE INDIANS ANY PERMANENT RIGHTS IN THE LANDS OF
ALASKA OCCUPIED BY THEM BY PERMISSION OF CONGRESS.  RATHER, IT CLEARLY
APPEARS THAT WHAT WAS INTENDED WAS MERELY TO RETAIN THE STATUS QUO
UNTIL FURTHER CONGRESSIONAL OR JUDICIAL ACTION WAS TAKEN.  (FN12)
THERE IS NO PARTICULAR FORM FOR CONGRESSIONAL RECOGNITION OF INDIAN
RIGHT OF PERMANENT OCCUPANCY.  IT MAY BE ESTABLISHED IN A VARIETY OF
WAYS BUT THERE MUST BE THE DEFINITE INTENTION BY CONGRESSIONAL ACTION
OR AUTHORITY TO ACCORD LEGAL RIGHTS, NOT MERELY PERMISSIVE OCCUPATION. 
HYNES V. GRIMES PACKING CO., 337 U.S. 86, 101. 

THIS POLICY OF CONGRESS TOWARD THE ALASKAN INDIAN LANDS WAS
MAINTAINED AND REFLECTED BY ITS EXPRESSION IN THE JOINT RESOLUTION OF
1947 UNDER WHICH THE TIMBER CONTRACTS WERE MADE.  (FN13) 

II.  INDIAN TITLE.  - (A)  THE NATURE OF ABORIGINAL INDIAN INTEREST
IN LAND AND THE VARIOUS RIGHTS AS BETWEEN THE INDIANS AND THE UNITED
STATES DEPENDENT ON SUCH INTEREST ARE FAR FROM NOVEL AS CONCERNS OUR
INDIAN INHABITANTS.  IT IS WELL SETTLED THAT IN ALL THE STATES OF THE
UNION THE TRIBES WHO INHABITED THE LANDS OF THE STATES HELD CLAIM TO
SUCH LANDS AFTER THE COMING OF THE WHITE MAN, UNDER WHAT IS SOMETIMES
TERMED ORIGINAL INDIAN TITLE OR PERMISSION FROM THE WHITES TO OCCUPY. 
THAT DESCRIPTION MEANS MERE POSSESSION NOT SPECIFICALLY RECOGNIZED AS
OWNERSHIP BY CONGRESS.  AFTER CONQUEST THEY WERE PERMITTED TO OCCUPY
PORTIONS OF TERRITORY OVER WHICH THEY HAD PREVIOUSLY EXERCISED
"SOVEREIGNTY," AS WE USE THAT TERM.  THIS IS NOT A PROPERTY RIGHT BUT
AMOUNTS TO A RIGHT OF OCCUPANCY WHICH THE SOVEREIGN GRANTS AND PROTECTS
AGAINST INTRUSION BY THIRD PARTIES BUT WHICH RIGHT OF OCCUPANCY MAY BE
TERMINATED AND SUCH LANDS FULLY DISPOSED OF BY THE SOVEREIGN ITSELF
WITHOUT ANY LEGALLY ENFORCEABLE OBLIGATION TO COMPENSATE THE INDIANS. 

THIS POSITION OF THE INDIAN HAS LONG BEEN RATIONALIZED BY THE LEGAL
THEORY THAT DISCOVERY AND CONQUEST GAVE THE CONQUERORS SOVEREIGNTY OVER
AND OWNERSHIP OF THE LANDS THUS OBTAINED.  1 WHEATON'S INTERNATIONAL
LAW, C. V. THE GREAT CASE OF JOHNSON V. MCINTOSH, 8 WHEAT.  543, DENIED
THE POWER OF AN INDIAN TRIBE TO PASS THEIR RIGHT OF OCCUPANCY TO
ANOTHER.  IT CONFIRMED THE PRACTICE OF TWO HUNDRED YEARS OF AMERICAN
HISTORY "THAT DISCOVERY GAVE AN EXCLUSIVE RIGHT TO EXTINGUISH THE
INDIAN TITLE OF OCCUPANCY, EITHER BY PURCHASE OR BY CONQUEST."  P.
587. 

"WE WILL NOT ENTER INTO THE CONTROVERSY, WHETHER AGRICULTURISTS,
MERCHANTS, AND MANUFACTURERS, HAVE A RIGHT, ON ABSTRACT PRINCIPLES, TO
EXPEL HUNTERS FROM THE TERRITORY THEY POSSESS, OR TO CONTRACT THEIR
LIMITS.  CONQUEST GIVES A TITLE WHICH THE COURTS OF THE CONQUEROR
CANNOT DENY, WHATEVER THE PRIVATE AND SPECULATIVE OPINIONS OF
INDIVIDUALS MAY BE, RESPECTING THE ORIGINAL JUSTICE OF THE CLAIM WHICH
HAS BEEN SUCCESSFULLY ASSERTED."  P. 588. 

"FREQUENT AND BLOODY WARS, IN WHICH THE WHITES WERE NOT ALWAYS THE
AGGRESSORS, UNAVOIDABLY ENSUED.   EUROPEAN POLICY, NUMBERS, AND SKILL,
PREVAILED.  AS THE WHITE POPULATION ADVANCED, THAT OF THE INDIANS
NECESSARILY RECEDED.  THE COUNTRY IN THE IMMEDIATE NEIGHBOURHOOD OF
AGRICULTURISTS BECAME UNFIT FOR THEM.  THE GAME FLED INTO THICKER AND
MORE UNBROKEN FORESTS, AND THE INDIANS FOLLOWED.  THE SOIL, TO WHICH
THE CROWN ORIGINALLY CLAIMED TITLE, BEING NO LONGER OCCUPIED BY ITS
ANCIENT INHABITANTS, WAS PARCELLED OUT ACCORDING TO THE WILL OF THE
SOVEREIGN POWER, AND TAKEN POSSESSION OF BY PERSONS WHO CLAIMED
IMMEDIATELY FROM THE CROWN, OR MEDIATELY, THROUGH ITS GRANTEES OR
DEPUTIES."  PP. 590-591.  SEE BUTTZ V. NORTHERN PACIFIC R. CO., 119
U.S. 55, 66; MARTIN V. WADDELL, 16 PET. 367, 409; CLARK V. SMITH, 13
PET. 195, 201. 

IN BEECHER V. WETHERBY, 95 U.S. 517, A TRACT OF LAND WHICH INDIANS
WERE THEN EXPRESSLY PERMITTED BY THE UNITED STATES TO OCCUPY WAS
GRANTED TO WISCONSIN.  IN A CONTROVERSY OVER TIMBER, THIS COURT HELD
THE WISCONSIN TITLE GOOD. 

"THE GRANTEE, IT IS TRUE, WOULD TAKE ONLY THE NAKED FEE, AND COULD
NOT DISTURB THE OCCUPANCY OF THE INDIANS:  THAT OCCUPANCY COULD ONLY BE
INTERFERED WITH OR DETERMINED BY THE UNITED STATES.  IT IS TO BE
PRESUMED THAT IN THIS MATTER THE UNITED STATES WOULD BE GOVERNED BY
SUCH CONSIDERATIONS OF JUSTICE AS WOULD CONTROL A CHRISTIAN PEOPLE IN
THEIR TREATMENT OF AN IGNORANT AND DEPENDENT RACE.  BE THAT AS IT MAY,
THE PROPRIETY OR JUSTICE OF THEIR ACTION TOWARDS THE INDIANS WITH
RESPECT TO THEIR LANDS IS A QUESTION OF GOVERNMENTAL POLICY, AND IS NOT
A MATTER OPEN TO DISCUSSION IN A CONTROVERSY BETWEEN THIRD PARTIES,
NEITHER OF WHOM DERIVES TITLE FROM THE INDIANS.  THE RIGHT OF THE
UNITED STATES TO DISPOSE OF THE FEE OF LANDS OCCUPIED BY THEM HAS
ALWAYS BEEN RECOGNIZED BY THIS COURT FROM THE FOUNDATION OF THE
GOVERNMENT."  P. 525. 

IN 1941 A UNANIMOUS COURT WROTE, CONCERNING INDIAN TITLE, THE
FOLLOWING: 

"EXTINGUISHMENT OF INDIAN TITLE BASED ON ABORIGINAL POSSESSION IS OF
COURSE A DIFFERENT MATTER.  THE POWER OF CONGRESS IN THAT REGARD IS
SUPREME.  THE MANNER, METHOD AND TIME OF SUCH EXTINGUISHMENT RAISE
POLITICAL, NOT JUSTICIABLE, ISSUES."  UNITED STATES V. SANTA FE PACIFIC
R. CO., 314 U.S. 339, 347. 

NO CASE IN THIS COURT HAS EVER HELD THAT TAKING OF INDIAN TITLE OR
USE BY CONGRESS REQUIRED COMPENSATION.  THE AMERICAN PEOPLE HAVE
COMPASSION FOR THE DESCENDANTS OF THOSE INDIANS WHO WERE DEPRIVED OF
THEIR HOMES AND HUNTING GROUNDS BY THE DRIVE OF CIVILIZATION.  THEY
SEEK TO HAVE THE INDIANS SHARE THE BENEFITS OF OUR SOCIETY AS CITIZENS
OF THIS NATION.  GENEROUS PROVISION HAS BEEN WILLINGLY MADE TO ALLOW
TRIBES TO RECOVER FOR WRONGS, AS A MATTER OF GRACE, NOT BECAUSE OF
LEGAL LIABILITY.  60 STAT. 1050. 

(B)  THERE IS ONE OPINION IN A CASE DECIDED BY THIS COURT THAT
CONTAINS LANGUAGE INDICATING THAT UNRECOGNIZED INDIAN TITLE MIGHT BE
COMPENSABLE UNDER THE CONSTITUTION WHEN TAKEN BY THE UNITED STATES. 
UNITED STATES V. TILLAMOOKS, 329 U.S. 40. 

RECOVERY WAS ALLOWED UNDER A JURISDICTIONAL ACT OF 1935, 49 STAT.
801, THAT PERMITTED PAYMENTS TO A FEW SPECIFIC INDIAN TRIBES FOR "LEGAL
AND EQUITABLE CLAIMS ARISING UNDER OR GROWING OUT OF THE ORIGINAL
INDIAN TITLE" TO LAND, BECAUSE OF SOME UNRATIFIED TREATIES NEGOTIATED
WITH THEM AND OTHER TRIBES.  THE OTHER TRIBES HAD ALREADY BEEN
COMPENSATED.  (FN14)  FIVE YEARS LATER THIS COURT UNANIMOUSLY HELD THAT
NONE OF THE FORMER OPINIONS IN VOL. 329 OF THE UNITED STATES REPORTS
EXPRESSED THE VIEW THAT RECOVERY WAS GROUNDED ON A TAKING UNDER THE
FIFTH AMENDMENT.  UNITED STATES V. TILLAMOOKS, 341 U.S. 48.  INTEREST,
PAYABLE ON RECOVERY FOR A TAKING UNDER THE FIFTH AMENDMENT, WAS
DENIED.    BEFORE THE SECOND TILLAMOOK CASE, A DECISION WAS MADE ON
ALASKAN TLINGIT LANDS HELD BY ORIGINAL INDIAN TITLE.  MILLER V. UNITED
STATES, 159 F.2D 997.  THAT OPINION HOLDS SUCH A TITLE COMPENSABLE
UNDER THE FIFTH AMENDMENT ON REASONING DRAWN FROM THE LANGUAGE OF THIS
COURT'S FIRST TILLAMOOK CASE.   (FN15)  AFTER THE MILLER DECISION, THIS
COURT HAD OCCASION TO CONSIDER THE HOLDING OF THAT CASE ON INDIAN TITLE
IN HYNES V. GRIMES PACKING CO., 337 U.S. 86, 106, NOTE 28.  WE THERE
COMMENTED AS TO THE FIRST TILLAMOOK CASE:  "THAT OPINION DOES NOT HOLD
THE INDIAN RIGHT OF OCCUPANCY COMPENSABLE WITHOUT SPECIFIC LEGISLATIVE
DIRECTION TO MAKE PAYMENT."  WE FURTHER DECLARED "WE CANNOT EXPRESS
AGREEMENT WITH THAT COMPENSABILITY OF INDIAN TITLE BY THE MILLER CASE
CONCLUSION."  (FN16) 

LATER THE GOVERNMENT USED THE HYNES V. GRIMES PACKING CO. NOTE IN THE
SECOND TILLAMOOK CASE, PETITION FOR CERTIORARI, P. 10, TO SUPPORT ITS
ARGUMENT THAT THE FIRST TILLAMOOK OPINION DID NOT DECIDE THAT TAKING OF
ORIGINAL INDIAN TITLE WAS COMPENSABLE UNDER THE FIFTH AMENDMENT. 
(FN17) THEREUPON THIS COURT IN THE SECOND TILLAMOOK CASE, 341 U.S. 48,
HELD THAT THE FIRST CASE WAS NOT "GROUNDED ON A TAKING UNDER THE FIFTH
AMENDMENT."  THEREFORE NO INTEREST WAS DUE.  THIS LATER TILLAMOOK
DECISION BY A UNANIMOUS COURT SUPPORTED THE COURT OF CLAIMS IN ITS VIEW
OF THE LAW IN THIS PRESENT CASE.  SEE TEE-HIT-TON INDIANS V. UNITED
STATES, 128 CT. CL., AT 87, 120 F. SUPP., AT 204-205.  WE THINK IT MUST
BE CONCLUDED THAT THE RECOVERY IN THE TILLAMOOK CASE WAS BASED UPON
STATUTORY DIRECTION TO PAY FOR THE ABORIGINAL TITLE IN THE SPECIAL
JURISDICTIONAL ACT TO EQUALIZE THE TILLAMOOKS WITH THE NEIGHBORING
TRIBES, RATHER THAN UPON A HOLDING THAT THERE HAD BEEN A COMPENSABLE
TAKING UNDER THE FIFTH AMENDMENT.  (FN18)  THIS LEAVES UNIMPAIRED THE
RULE DERIVED FROM JOHNSON V. MCINTOSH THAT THE TAKING BY THE UNITED
STATES OF UNRECOGNIZED INDIAN TITLE IS NOT COMPENSABLE UNDER THE FIFTH
AMENDMENT. 

THIS IS TRUE, NOT BECAUSE AN INDIAN OR AN INDIAN TRIBE HAS NO
STANDING TO SUE OR BECAUSE THE UNITED STATES HAS NOT CONSENTED TO BE
SUED FOR THE TAKING OF ORIGINAL INDIAN TITLE, BUT BECAUSE INDIAN
OCCUPATION OF LAND WITHOUT GOVERNMENT RECOGNITION OF OWNERSHIP CREATES
NO RIGHTS AGAINST TAKING OR EXTINCTION BY THE UNITED STATES PROTECTED
BY THE FIFTH AMENDMENT OR ANY OTHER PRINCIPLE OF LAW. 

(C)  WHAT HAS BEEN HERETOFORE SET OUT DEALS LARGELY WITH THE INDIANS
OF THE PLAINS AND EAST OF THE MISSISSIPPI.  THE TEE-HIT-TONS URGE,
HOWEVER, THAT THEIR STAGE OF CIVILIZATION AND THEIR CONCEPT OF
OWNERSHIP OF PROPERTY TAKES THEM OUT OF THE RULE APPLICABLE TO THE
INDIANS OF THE STATES.  THEY ASSERT THAT RUSSIA NEVER TOOK THEIR LANDS
IN THE SENSE THAT EUROPEAN NATIONS SEIZED THE REST OF AMERICA.  THE
COURT OF CLAIMS, HOWEVER, SAW NO DISTINCTION BETWEEN THEIR USE OF THE
LAND AND THAT OF THE INDIANS OF THE EASTERN UNITED STATES.  SEE TEE-HIT
TON INDIANS V. UNITED STATES, 128 CT. CL. 82, 87, 120 F. SUPP. 202, 204
205.  THAT COURT HAD NO EVIDENCE THAT THE RUSSIAN HANDLING OF THE
INDIAN LAND PROBLEM DIFFERED FROM OURS.  THE NATIVES WERE LEFT THE USE
OF THE GREAT PART OF THEIR VAST HUNTING AND FISHING TERRITORY BUT WHAT
RUSSIA WANTED FOR ITS USE AND THAT OF ITS LICENSEES, IT TOOK.   THE
COURT'S CONCLUSION ON THIS ISSUE WAS BASED ON STRONG EVIDENCE. 

IN CONSIDERING THE CHARACTER OF THE TEE-HIT-TONS' USE OF THE LAND,
THE COURT OF CLAIMS HAD BEFORE IT THE TESTIMONY OF A SINGLE WITNESS WHO
WAS OFFERED BY PLAINTIFF.  HE STATED THAT HE WAS THE CHIEF OF THE TEE
HIT-TON TRIBE.  HE QUALIFIED AS AN EXPERT ON THE TLINGITS, A GROUP
COMPOSED OF NUMEROUS INTERCONNECTED TRIBES INCLUDING THE TEE-HIT-TONS. 
HIS TESTIMONY SHOWED THAT THE TEE-HIT-TONS HAD BECOME GREATLY REDUCED
IN NUMBERS.  MEMBERSHIP DESCENDS ONLY THROUGH THE FEMALE LINE.  AT THE
PRESENT TIME THERE ARE ONLY A FEW WOMEN OF CHILDBEARING AGE AND A TOTAL
MEMBERSHIP OF SOME 65. 

THE WITNESS POINTED OUT THAT THEIR CLAIM OF OWNERSHIP WAS BASED ON
POSSESSION AND USE.  THE USE THAT WAS MADE OF THE CONTROVERTED AREA WAS
FOR THE LOCATION IN WINTER OF VILLAGES IN SHELTERED SPOTS AND IN SUMMER
ALONG FISHING STREAMS AND/OR BAYS.  THE OWNERSHIP WAS NOT INDIVIDUAL
BUT TRIBAL.  AS THE WITNESS STATED, "ANY MEMBER OF THE TRIBE MAY USE
ANY PORTION OF THE LAND THAT HE WISHES, AND AS LONG AS HE USES IT THAT
IS HIS FOR HIS OWN ENJOYMENT, AND IS NOT TO BE TRESPASSED UPON BY
ANYBODY ELSE, BUT THE MINUTE HE STOPS USING IT THEN ANY OTHER MEMBER OF
THE TRIBE CAN COME IN AND USE THAT AREA." 

WHEN THE RUSSIANS FIRST CAME TO THE TLINGIT TERRITORY, THE MOST
IMPORTANT OF THE CHIEFS MOVED THE PEOPLE TO WHAT IS NOW THE LOCATION OF
THE TOWN OF WRANGELL.  EACH TRIBE TOOK A PORTION OF WRANGELL HARBOR AND
THE CHIEF GAVE PERMISSION TO THE RUSSIANS TO BUILD A HOUSE ON THE
SHORE. 

THE WITNESS LEARNED THE ALLEGED BOUNDARIES OF THE TEE-HIT-TON AREA
FROM HUNTING AND FISHING WITH HIS UNCLE AFTER HIS RETURN FROM CARLISLE
INDIAN SCHOOL ABOUT 1904.  FROM THE KNOWLEDGE SO OBTAINED, HE OUTLINED
IN RED ON THE MAP, WHICH PETITIONER FILED AS AN EXHIBIT, THE TERRITORY
CLAIMED BY THE TEE-HIT-TONS.  USE BY OTHER TRIBAL MEMBERS IS SKETCHILY
ASSERTED.  THIS IS THE SAME 350,000 ACRES CLAIMED BY THE PETITION.  ON
IT HE MARKED SIX PLACES TO SHOW THE INDIANS' USE OF THE LAND:  (1) HIS
GREAT UNCLE WAS BURIED HERE, (2) A TOWN, (3) HIS UNCLE'S HOUSE, (4) A
TOWN, (5) HIS MOTHER'S HOUSE, (6) SMOKEHOUSE.  HE ALSO POINTED OUT THE
USES OF THIS TRACT FOR FISHING SALMON AND FOR HUNTING BEAVER, DEER AND
MINK. 

THE TESTIMONY FURTHER SHOWS THAT WHILE MEMBERSHIP IN THE TRIBE AND
THEREFORE OWNERSHIP IN THE COMMON PROPERTY DESCENDED ONLY THROUGH THE
FEMALE LINE, THE VARIOUS TRIBES OF THE TLINGITS ALLOWED ONE ANOTHER TO
USE THEIR LANDS.  BEFORE POWER BOATS, THE INDIANS WOULD PUT THEIR
SHELTERS FOR HUNTING AND FISHING AWAY FROM VILLAGES.  WITH THE POWER
BOATS, THEY USED THEM AS LIVING QUARTERS. 

IN ADDITION TO THIS VERBAL TESTIMONY, EXHIBITS WERE INTRODUCED BY
BOTH SIDES AS TO THE LAND USE.  THESE EXHIBITS ARE SECONDARY
AUTHORITIES BUT THEY BEAR OUT THE GENERAL PROPOSITION THAT LAND CLAIMS
AMONG THE TLINGITS, AND LIKEWISE OF THEIR SMALLER GROUP, THE TEE-HIT
TONS, WAS WHOLLY TRIBAL.  IT WAS MORE A CLAIM OF SOVEREIGNTY THAN OF
OWNERSHIP.  THE ARTICLES PRESENTED TO THE COURT OF CLAIMS BY THOSE WHO
HAVE STUDIED AND WRITTEN OF THE TRIBAL GROUPS AGREE WITH THE ABOVE
TESTIMONY.  THERE WERE SCATTERED SHELTERS AND VILLAGES MOVED FROM PLACE
TO PLACE AS GAME OR FISH BECAME SCARCE.  THERE WAS RECOGNITION OF
TRIBAL RIGHTS TO HUNT AND FISH ON CERTAIN GENERAL AREAS, WITH CLAIMS TO
THAT EFFECT CARVED ON TOTEM POLES.  FROM ALL THAT WAS PRESENTED, THE
COURT OF CLAIMS CONCLUDED, AND WE AGREE, THAT THE TEE-HIT-TONS WERE IN
A HUNTING AND FISHING STAGE OF CIVILIZATION, WITH SHELTERS FITTED TO
THEIR ENVIRONMENT, AND CLAIMS TO RIGHTS TO USE IDENTIFIED TERRITORY FOR
THESE ACTIVITIES AS WELL AS THE GATHERING OF WILD PRODUCTS OF THE
EARTH.  (FN19)  WE THINK THIS EVIDENCE INTRODUCED BY BOTH SIDES
CONFIRMS THE COURT OF CLAIMS' CONCLUSION THAT THE PETITIONER'S USE OF
ITS LANDS WAS LIKE THE USE OF THE NOMADIC TRIBES OF THE STATES
INDIANS.  (FN20) 

THE LINE OF CASES ADJUDICATING INDIAN RIGHTS ON AMERICAN SOIL LEADS
TO THE CONCLUSION THAT INDIAN OCCUPANCY, NOT SPECIFICALLY RECOGNIZED AS
OWNERSHIP BY ACTION AUTHORIZED BY CONGRESS, MAY BE EXTINGUISHED BY THE
GOVERNMENT WITHOUT COMPENSATION.  (FN21)  EVERY AMERICAN SCHOOLBOY
KNOWS THAT THE SAVAGE TRIBES OF THIS CONTINENT WERE DEPRIVED OF THEIR
ANCESTRAL RANGES BY FORCE AND THAT, EVEN WHEN THE INDIANS CEDED
MILLIONS OF ACRES BY TREATY IN RETURN FOR BLANKETS, FOOD AND TRINKETS,
IT WAS NOT A SALE BUT THE CONQUERORS' WILL THAT DEPRIVED THEM OF THEIR
LAND.  THE DUTY THAT RESTS ON THIS NATION WAS ADEQUATELY PHRASED BY MR.
JUSTICE JACKSON IN HIS CONCURRENCE, MR. JUSTICE BLACK JOINING, IN
SHOSHONE INDIANS V. UNITED STATES, 324 U.S. 335, AT 355, A CASE THAT
DIFFERENTIATED "RECOGNIZED" FROM "UNRECOGNIZED" INDIAN TITLE, AND HELD
THE FORMER ONLY COMPENSABLE.  ID., AT 339-340.  HIS WORDS WILL BE FOUND
AT 354-358.  HE ENDS THUS: 

"WE AGREE WITH MR. JUSTICE REED THAT NO LEGAL RIGHTS ARE TODAY TO BE
RECOGNIZED IN THE SHOSHONES BY REASON OF THIS TREATY.  WE AGREE WITH
MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY AS TO THEIR MORAL DESERTS. 
WE DO NOT MEAN TO LEAVE THE IMPRESSION THAT THE TWO HAVE ANY RELATION
TO EACH OTHER.   THE FINDING THAT THE TREATY CREATES NO LEGAL
OBLIGATIONS DOES NOT RESTRICT CONGRESS FROM SUCH APPROPRIATIONS AS ITS
JUDGMENT DICTATES 'FOR THE HEALTH, EDUCATION, AND INDUSTRIAL
ADVANCEMENT OF SAID INDIANS,' WHICH IS THE POSITION IN WHICH CONGRESS
WOULD FIND ITSELF IF WE FOUND THAT IT DID CREATE LEGAL OBLIGATIONS AND
TRIED TO PUT A VALUE ON THEM."  ID., AT 358. 

IN THE LIGHT OF THE HISTORY OF INDIAN RELATIONS IN THIS NATION, NO
OTHER COURSE WOULD MEET THE PROBLEM OF THE GROWTH OF THE UNITED STATES
EXCEPT TO MAKE CONGRESSIONAL CONTRIBUTIONS FOR INDIAN LANDS RATHER THAN
TO SUBJECT THE GOVERNMENT TO AN OBLIGATION TO PAY THE VALUE WHEN TAKEN
WITH INTEREST TO THE DATE OF PAYMENT.  OUR CONCLUSION DOES NOT UPHOLD
HARSHNESS AS AGAINST TENDERNESS TOWARD THE INDIANS, BUT IT LEAVES WITH
CONGRESS, WHERE IT BELONGS, THE POLICY OF INDIAN GRATUITIES FOR THE
TERMINATION OF INDIAN OCCUPANCY OF GOVERNMENT-OWNED LAND RATHER THAN
MAKING COMPENSATION FOR ITS VALUE A RIGID CONSTITUTIONAL PRINCIPLE. 

THE JUDGMENT OF THE COURT OF CLAIMS IS AFFIRMED. 

FN1  A PARTIAL TAKING IS COMPENSABLE.  UNITED STATES V. KANSAS CITY
LIFE INS. CO., 339 U.S. 799, 809; UNITED STATES V. GERLACH LIVE STOCK
CO., 339 U.S. 725, 739; UNITED STATES V. GENERAL MOTORS CORP., 323 U.S.
373; UNITED STATES V. SHOSHONE TRIBE, 304 U.S. 111, 118. 

FN2  SEE INDIAN CLAIMS COMMISSION ACT, 60 STAT. 1049; WORCESTER V.
GEORGIA, 6 PET. 515, 582; ALASKA PACIFIC FISHERIES V. UNITED STATES,
248 U.S. 78, 87, 89; UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S.
339, 354. 

FN3  "SEPARATE TRIALS:  THE COURT IN FURTHERANCE OF CONVENIENCE OR TO
AVOID PREJUDICE MAY ORDER A SEPARATE TRIAL OF ANY CLAIM, COUNTERCLAIM,
OR OF ANY SEPARATE ISSUES OR OF ANY NUMBER OF CLAIMS, COUNTERCLAIMS, OR
ISSUES; AND MAY ENTER APPROPRIATE ORDERS OR JUDGMENTS WITH RESPECT TO
ANY OF SUCH ISSUES, CLAIMS, OR COUNTERCLAIMS THAT ARE TRIED
SEPARATELY." 

FN4  "1.  IS THE PLAINTIFF AN 'IDENTIFIABLE GROUP OF AMERICAN INDIANS
RESIDING WITHIN THE TERRITORIAL LIMITS OF  ...  ALASKA' WITHIN THE
MEANING OF 28 U.S.C. SEC. 1505?" 

"2.  WHAT PROPERTY RIGHTS, IF ANY, WOULD PLAINTIFF, AFTER DEFENDANT'S
1867 ACQUISITION OF SOVEREIGNTY OVER ALASKA, THEN HAVE HAD IN THE AREA,
IF ANY, WHICH FROM ABORIGINAL TIMES IT HAD THROUGH ITS MEMBERS, THEIR
SPOUSES, IN-LAWS, AND PERMITTEES USED OR OCCUPIED IN THEIR ACCUSTOMED
INDIAN MANNER FOR FISHING, HUNTING, BERRYING, MAINTAINING PERMANENT OR
SEASONAL VILLAGES AND OTHER STRUCTURES, OR BURYING THE DEAD?" 

"3. WHAT SUCH RIGHTS, IF ANY, WOULD HAVE INURED TO IT UNDER THE ACT
OF MAY 17, 1884, 23 STAT. 24, IN THE AREA, IF ANY, WHICH ON THAT DATE
WAS EITHER SO USED OR OCCUPIED BY IT OR WAS CLAIMED BY IT?" 

"4.  WHAT SUCH RIGHTS, IF ANY, WOULD HAVE INURED TO IT UNDER THE ACT
OF JUNE 6, 1900, 31 STAT. 321, 330, IN THE AREA, IF ANY, WHICH ON THAT
DATE WAS SO USED OR OCCUPIED BY IT?" 

"5.  IN THE EVENT A DECISION OF AN AFFIRMATIVE NATURE ON ANY OF
ISSUES 2, 3, OR 4, IS FOLLOWED BY EVIDENCE INDICATING SPECIFIC PROPERTY
RIGHTS ON THE PART OF PLAINTIFF AT ANY OF THOSE TIMES, THEN WOULD THE
TESTIMONY OF PLAINTIFF'S WITNESS PAUL AS TO RECENT LESS INTENSIVE USE
OF THE AREAS CLAIMED BY PLAINTIFF (TR. 13-14, 29-30, 44-45, 96-97)
CONSTITUTE PRIMA FACIE EVIDENCE OF TERMINATION OR LOSS OF SUCH
RIGHTS?" 

"6.  IF ANY SUCH PROPERTY RIGHTS ARE ESTABLISHED, AND HAD NOT
MEANWHILE BEEN TERMINATED OR LOST, THEN WOULD THE EXECUTION OF THE
TIMBER SALE AGREEMENT OF AUGUST 20, 1951 (AS ADMITTED IN PARAGRAPH 10
OF DEFENDANT'S ANSWER), CONSTITUTE A COMPENSABLE TAKING OF SUCH RIGHTS,
OR WOULD IT GIVE RISE TO A RIGHT TO AN ACCOUNTING WITHIN THE
JURISDICTION OF THIS COURT, OR BOTH?"  128 CT. CL. 82, 85, 120 F. SUPP.
202, 204. 

FN5  SEE HEARINGS BEFORE HOUSE COMMITTEE ON AGRICULTURE ON H.J. RES.
205, 80TH CONG., 1ST SESS.; COMMITTEE PRINT NO. 12, HOUSE COMMITTEE ON
INTERIOR AND INSULAR AFFAIRS, 83D CONG., 2D SESS. 

FN6  61 STAT. 921, SEC. 2(A). 

FN7 ID., SEC. 1:  "THAT 'POSSESSORY RIGHTS' AS USED IN THIS
RESOLUTION SHALL MEAN ALL RIGHTS, IF ANY SHOULD EXIST, WHICH ARE BASED
UPON ABORIGINAL OCCUPANCY OR TITLE, OR UPON SECTION 8 OF THE ACT OF MAY
17, 1884 (23 STAT. 24), SECTION 14 OF THE ACT OF MARCH 3, 1891 (26
STAT. 1095), OR SECTION 27 OF THE ACT OF JUNE 6, 1900 (31 STAT. 321),
WHETHER CLAIMED BY NATIVE TRIBES, NATIVE VILLAGES, NATIVE INDIVIDUALS,
OR OTHER PERSONS, AND WHICH HAVE NOT BEEN CONFIRMED BY PATENT OR COURT
DECISION OR INCLUDED WITHIN ANY RESERVATION." 

FN8  ID., SEC. 3(A). 

FN9  UNITED STATES V. CREEK NATION, 295 U.S. 103, 109-110; SHOSHONE
TRIBE V. UNITED STATES, 299 U.S. 476, 497; CHIPPEWA INDIANS V. UNITED
STATES, 301 U.S. 358, 375-376; UNITED STATES V. KLAMATH INDIANS, 304
U.S. 119; SIOUX TRIBE V. UNITED STATES, 316 U.S. 317, 326. 

FN10  "  ...  THAT THE INDIANS OR OTHER PERSONS IN SAID DISTRICT
SHALL NOT BE DISTURBED IN THE POSSESSION OF ANY LANDS ACTUALLY IN THEIR
USE OR OCCUPATION OR NOW CLAIMED BY THEM BUT THE TERMS UNDER WHICH SUCH
PERSONS MAY ACQUIRE TITLE TO SUCH LANDS IS RESERVED FOR FUTURE
LEGISLATION BY CONGRESS:  ...  ."    FN11  "THE INDIANS OR PERSONS
CONDUCTING SCHOOLS OR MISSIONS IN THE DISTRICT SHALL NOT BE DISTURBED
IN THE POSSESSION OF ANY LANDS NOW ACTUALLY IN THEIR USE OR OCCUPATION,
...  ." 

FN12  23 STAT. 24; SEE 15 CONG. REC. 530-531; H.R. REP. NO. 476, 48TH
CONG., 1ST SESS.  2; 31 STAT. 321; SEE 33 CONG. REC. 5966. 

FN13  61 STAT. 921, SEC. 3(B), SEE P. 276, SUPRA; H.R. REP. NO. 873,
80TH CONG., 1ST SESS. 

FN14  329 U.S., AT P. 44.    FN15  IT RELIES ALSO, P. 1001, ON
MINNESOTA V. HITCHCOCK, 185 U.S. 373, AND UNITED STATES V. KLAMATH
INDIANS, 304 U.S. 119.  THESE CASES, HOWEVER, CONCERN GOVERNMENT TAKING
OF LANDS HELD UNDER INDIAN TITLE RECOGNIZED BY THE UNITED STATES AS AN
INDIAN RESERVATION.  SEE 185 U.S., AT 390, 304 U.S., AT 121, 16 STAT.
707, UNITED STATES V. ALGOMA LUMBER CO., 305 U.S. 415, 420, AND 329
U.S. 40, 52, NOTE 29.  SEE UNITED STATES V. 10.95 ACRES OF LAND, 75 F.
SUPP. 841. 

FN16  THE STATEMENT CONCERNING THE MILLER CASE WAS NEEDED TO MEET THE
GRIMES PACKING COMPANY ARGUMENT THAT CONGRESS COULD NOT HAVE INTENDED
TO AUTHORIZE THE INTERIOR DEPARTMENT TO INCLUDE AN IMPORTANT AND
VALUABLE FISHING AREA, SEE HYNES V. GRIMES PACKING CO., 337 U.S., AT
95, NOTE 10, IN A PERMANENT RESERVATION FOR AN INDIAN POPULATION OF 57
ELIGIBLE VOTERS.  ACTUAL OCCUPATION OF ALASKAN LANDS BY INDIANS
AUTHORIZED THE CREATION OF A RESERVATION.  337 U.S., AT 91.  ONE
CREATED BY CONGRESS THROUGH RECOGNITION OF A PERMANENT RIGHT IN THE
INDIANS FROM ABORIGINAL USE WOULD REQUIRE COMPENSATION TO THEM FOR
REOPENING TO THE PUBLIC.  ID., AT 103-106.  IT WAS THEREFORE IMPORTANT
TO SHOW THAT THERE WAS NO RIGHT ARISING FROM ABORIGINAL OCCUPATION. 

FN17  THREE MILLION DOLLARS WAS INVOLVED IN THE TILLAMOOK CASE AS THE
VALUE OF THE LAND, AND THE INTEREST GRANTED BY THE COURT OF CLAIMS WAS
$14,000,000.  THE GOVERNMENT POINTED OUT THAT IF ABORIGINAL INDIAN
TITLE WAS COMPENSABLE WITHOUT SPECIFIC LEGISLATION TO THAT EFFECT,
THERE WERE CLAIMS WITH ESTIMATED INTEREST ALREADY PENDING UNDER THE
INDIAN JURISDICTIONAL ACT AGGREGATING $9,000,000,000. 

FN18  IN CARINO V. INSULAR GOVERNMENT OF THE PHILIPPINE ISLANDS, 212
U.S. 449, THIS COURT DID UPHOLD AS VALID A CLAIM OF LAND OWNERSHIP IN
WHICH TRIBAL CUSTOM AND TRIBAL RECOGNITION OF OWNERSHIP PLAYED A PART. 
PETITIONER WAS AN IGOROT WHO ASSERTED THE RIGHT TO REGISTER OWNERSHIP
OF CERTAIN LAND ALTHOUGH HE HAD NO DOCUMENT OF TITLE FROM THE SPANISH
GOVERNMENT AND NO RECOGNITION OF OWNERSHIP HAD BEEN EXTENDED BY SPAIN
OR BY THE UNITED STATES.  THE UNITED STATES GOVERNMENT HAD TAKEN
POSSESSION OF THE LAND FOR A PUBLIC USE AND DISPUTED THE FACT THAT
PETITIONER HAD ANY LEGALLY RECOGNIZABLE TITLE. 

THE BASIS OF THE COURT'S DECISION, HOWEVER, DISTINGUISHES IT FROM
APPLICABILITY TO THE TEE-HIT-TON CLAIM.  THE COURT RELIED CHIEFLY UPON
THE PURPOSE OF OUR ACQUISITION OF THE PHILIPPINES AS DISCLOSED BY THE
ORGANIC ACT OF JULY 1, 1902, WHICH WAS TO ADMINISTER PROPERTY AND
RIGHTS "FOR THE BENEFIT OF THE INHABITANTS THEREOF."  32 STAT. 695. 
THIS PURPOSE IN ACQUISITION AND ITS EFFECT ON LAND HELD BY THE NATIVES
WAS DISTINGUISHED FROM THE SETTLEMENT OF THE WHITE RACE IN THE UNITED
STATES WHERE "THE DOMINANT PURPOSE OF THE WHITES IN AMERICA WAS TO
OCCUPY THE LAND."  212 U.S., AT 458.  THE COURT FURTHER FOUND THAT THE
SPANISH LAW AND EXERCISE OF SPANISH SOVEREIGNTY OVER THE ISLANDS TENDED
TO SUPPORT RATHER THAN DEFEAT A PRESCRIPTIVE RIGHT.  SINCE THIS WAS NO
COMMUNAL CLAIM TO A VAST UNCULTIVATED AREA, IT WAS NATURAL TO APPLY THE
LAW OF PRESCRIPTION RATHER THAN A RULE OF SOVEREIGN OWNERSHIP OR
DOMINIUM.  CARINO'S CLAIM WAS TO A 370-ACRE FARM WHICH HIS GRANDFATHER
HAD FENCED SOME FIFTY YEARS BEFORE AND WAS USED BY THREE GENERATIONS AS
A PASTURE FOR LIVESTOCK AND SOME CULTIVATION OF VEGETABLES AND GRAIN. 
THE CASE BEARS CLOSER ANALOGY TO THE ORDINARY PRESCRIPTIVE RIGHTS
SITUATION RATHER THAN TO A RECOGNITION BY THIS COURT OF ANY ABORIGINAL
USE AND POSSESSION AMOUNTING TO FEE SIMPLE OWNERSHIP. 

FN19  KRAUSE, DIE TLINKIT-INDIANER (THE TLINKIT INDIANS), PP. 93-115
AND 120-122; OBERG, THE SOCIAL ECONOMY OF THE TLINGIT INDIANS (A
DISSERTATION SUBMITTED TO THE UNIVERSITY OF CHICAGO, DEPT. OF
ANTHROPOLOGY FOR THE DEGREE OF DOCTOR OF PHILOSOPHY, DEC. 1937);
GOLDSCHMIDT-HAAS REPORT TO COMMISSIONER OF INDIAN AFFAIRS ON POSSESSORY
RIGHTS OF THE NATIVES OF SOUTHEASTERN ALASKA, PP. I, II, IV, 1-25, 31
33, 123-133, RELATED STATEMENTS NUMBERED 65, 66, 67, 68 AND 69, AND
CHART 11; S. DOC. NO. 152, 81ST CONG., 2D SESS. (RUSSIAN ADMINISTRATION
OF ALASKA AND THE STATUS OF THE ALASKAN NATIVES); SEE JOHNSON V.
PACIFIC COAST S.S. CO., 2 ALASKA 224. 

FN20  IT IS SIGNIFICANT THAT EVEN WITH THE PUEBLO INDIANS OF THE
MEXICAN LAND SESSIONS, DESPITE THEIR CENTURIES-OLD SEDENTARY
AGRICULTURAL AND PASTORAL LIFE, THE UNITED STATES FOUND IT PROPER TO
CONFIRM TO THEM A TITLE IN THEIR LANDS.  THE AREA IN WHICH THE PUEBLOS
ARE LOCATED CAME UNDER OUR SOVEREIGNTY BY THE TREATY OF GUADALUPE
HIDALGO, 9 STAT. 922, AND THE GADSDEN PURCHASE TREATY OF DECEMBER 30,
1853, 10 STAT. 1031.  THE TREATY OF GUADALUPE HIDALGO CONTAINED A
GUARANTEE BY THE UNITED STATES TO RESPECT THE PROPERTY RIGHTS OF
MEXICANS LOCATED WITHIN THE TERRITORY ACQUIRED.  ART. VIII, 9 STAT.
929.  THIS PROVISION WAS INCORPORATED BY REFERENCE INTO THE GADSDEN
TREATY.  ART. V, 10 STAT. 1035.  THE LATTER TREATY ALSO CONTAINED A
PROVISION THAT NO GRANTS OF LAND WITHIN THE CEDED TERRITORY MADE AFTER
A CERTAIN DATE WOULD BE RECOGNIZED OR ANY GRANTS "MADE PREVIOUSLY WOULD
BE RESPECTED OR BE CONSIDERED AS OBLIGATORY WHICH HAVE NOT BEEN LOCATED
AND DULY RECORDED IN THE ARCHIVES OF MEXICO."  ART. VI, 10 STAT. 1035. 
THIS PROVISION WAS HELD TO BAR RECOGNITION OF FEE OWNERSHIP IN THE
PUEBLO OF SANTA ROSA WHICH CLAIMED SUCH BY IMMEMORIAL USE AND
POSSESSION AS WELL AS BY PRESCRIPTION AGAINST SPAIN AND MEXICO BECAUSE
THEY COULD PRODUCE NO PAPER TITLE TO THE LANDS.  PUEBLO OF SANTA ROSA
V. FALL, 56 APP. D.C. 259, 262, 12 F.2D 332, 335, REVERSED ON OTHER
GROUNDS, 273 U.S. 315. 

DISPUTES AS TO THE INDIAN TITLES IN THE PUEBLOS AND THEIR POSITION AS
WARDS REQUIRED CONGRESSIONAL ACTION FOR SETTLEMENT.  SEE BRAYER, PUEBLO
INDIAN LAND GRANTS OF THE "RIO ABAJO," NEW MEXICO; COHEN, HANDBOOK OF
FEDERAL INDIAN LAW, C. 20.  THESE PROBLEMS WERE PUT IN THE WAY OF
SOLUTION ONLY BY CONGRESSIONAL RECOGNITION OF THE PUEBLOS' TITLE TO
THEIR LAND AND THE DECISIONS OF THIS COURT AS TO THEIR RACIAL CHARACTER
AS INDIANS, SUBJECT TO NECESSARY FEDERAL TUTELAGE.  10 STAT. 308,
CREATION OF OFFICE OF SURVEYOR-GENERAL OF NEW MEXICO TO REPORT AREA OF
BONA FIDE HOLDINGS; REPORT OF SECRETARY OF THE INTERIOR, COVERING THAT
OF THE SURVEY-GENERAL OF NEW MEXICO, S. EXEC. DOC. NO. 5, 34TH CONG.,
3D SESS. 174, 411; CONFIRMATION OF TITLES FOR APPROVED PUEBLO LAND
CLAIMS, 11 STAT. 374; S. DOC. NO. 1117, 37TH CONG., 2D SESS. 581-582,
REPORT OF SECRETARY OF INTERIOR SHOWING NEW MEXICO PUEBLOS WITH
CONFIRMED TITLES. 

REPRESENTATIVE SANDIDGE, WHO REPORTED THE FIRST PUEBLO CONFIRMATION
ACT TO THE HOUSE OF REPRESENTATIVES, STATED THAT THE PUEBLO CLAIMS,
"ALTHOUGH THEY ARE VALID, ARE NOT HELD TO BE SO BY THIS GOVERNMENT, NOR
BY ANY OF ITS COURTS, UNTIL THE CLAIM SHALL HAVE BEEN ACTED ON
SPECIFICALLY.  I WILL SAY, FURTHERMORE, THAT THE WHOLE LAND SYSTEM OF
THE TERRITORY OF NEW MEXICO IS HELD IN ABEYANCE UNTIL THESE PRIVATE
LAND CLAIMS SHALL HAVE BEEN ACTED ON BY CONGRESS."  CONG. GLOBE, 35TH
CONG., 1ST SESS. 2090 (1858). 

THE POSITION AS INDIANS OF THE INHABITANTS OF THE PUEBLOS WAS
CONSIDERED IN UNITED STATES V. JOSEPH, 94 U.S. 614, AND UNITED STATES
V. SANDOVAL, 231 U.S. 28. 

FOR AN INTERESTING SIDELIGHT ON THE DIFFICULTIES INHERENT IN THE
PROBLEMS, SEE BRAYER, SUPRA, P. 14, AND UNITED STATES V. RITCHIE, 17
HOW.  525. 

THUS IT IS SEEN THAT CONGRESSIONAL ACTION WAS DEEMED NECESSARY TO
VALIDATE THE OWNERSHIP OF THE PUEBLOS WHOSE CLAIM WAS CERTAINLY FOUNDED
UPON STRONGER LEGAL AND HISTORICAL BASIS THAN THE TLINGITS. 

FN21  THE DEPARTMENTS OF INTERIOR, AGRICULTURE AND JUSTICE AGREE WITH
THIS CONCLUSION.  SEE COMMITTEE PRINT NO. 12, SUPPLEMENTAL REPORTS
DATED JANUARY 11, 1954, ON H.R. 1921, 83D CONG., 2D SESS. 

DEPARTMENT OF INTERIOR:  "THAT THE INDIAN RIGHT OF OCCUPANCY IS NOT A
PROPERTY RIGHT IN THE ACCEPTED LEGAL SENSE WAS CLEARLY INDICATED WHEN
UNITED STATES V. ALCEA BAND OF TILLAMOOKS, 341 U.S. 48 (1951), WAS
REARGUED.  THE SUPREME COURT STATED, IN A PER CURIAM DECISION, THAT THE
TAKING OF LANDS TO WHICH INDIANS HAD A RIGHT OF OCCUPANCY WAS NOT A
TAKING WITHIN THE MEANING OF THE FIFTH AMENDMENT ENTITLING THE
DISPOSSESSED TO JUST COMPENSATION. 

"SINCE POSSESSORY RIGHTS BASED SOLELY UPON ABORIGINAL OCCUPANCY OR
USE ARE THUS OF AN UNUSUAL NATURE, SUBJECT TO THE WHIM OF THE SOVEREIGN
OWNER OF THE LAND WHO CAN GIVE GOOD TITLE TO THIRD PARTIES BY
EXTINGUISHING SUCH RIGHTS, THEY CANNOT BE REGARDED AS CLOUDS UPON TITLE
IN THE ORDINARY SENSE OF THE WORD.  THEREFORE, WE SUGGEST THE DELETION,
IN SECTION 3(C) OF THE BILL, OF THE WORDS 'UPON ABORIGINAL OCCUPANCY OR
TITLE, OR.'"  P. 3. 

DEPARTMENT OF AGRICULTURE:  "WE ALSO CONCUR IN THE BELIEF WHICH WE
UNDERSTAND IS BEING EXPRESSED BY THE DEPARTMENT OF THE INTERIOR THAT NO
RIGHTS PRESENTLY EXIST ON THE BASIS OF ABORIGINAL OCCUPANCY OR TITLE. 
WE BELIEVE THAT THIS IS EQUALLY TRUE WITH RESPECT TO LANDS WITHIN THE
TONGASS NATIONAL FOREST JUST AS IT IS WITH RESPECT TO LANDS ELSEWHERE
IN ALASKA."  P. 7 

DEPARTMENT OF JUSTICE:  "THUS, THERE IS NO LEGAL OR EQUITABLE BASIS
FOR CLAIMS OR RIGHTS ALLEGEDLY ARISING FROM 'ABORIGINAL OCCUPANCY OR
TITLE.'"  P. 11. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
FRANKFURTER CONCUR, DISSENTING. 

THE FIRST ORGANIC ACT FOR ALASKA BECAME A LAW ON MAY 17, 1884, 23
STAT. 24.  IT CONTAINED A PROVISION IN SEC. 8 WHICH READS AS FOLLOWS: 

"THE INDIANS OR OTHER PERSONS IN SAID DISTRICT SHALL NOT BE DISTURBED
IN THE POSSESSION OF ANY LANDS ACTUALLY IN THEIR USE OR OCCUPATION OR
NOW CLAIMED BY THEM BUT THE TERMS UNDER WHICH SUCH PERSONS MAY ACQUIRE
TITLE TO SUCH LANDS IS RESERVED FOR FUTURE LEGISLATION BY CONGRESS:
AND PROVIDED FURTHER, THAT PARTIES WHO HAVE LOCATED MINES OR MINERAL
PRIVILEGES THEREIN UNDER THE LAWS OF THE UNITED STATES APPLICABLE TO
THE PUBLIC DOMAIN, OR WHO HAVE OCCUPIED AND IMPROVED OR EXERCISED ACTS
OF OWNERSHIP OVER SUCH CLAIMS, SHALL NOT BE DISTURBED THEREIN, BUT
SHALL BE ALLOWED TO PERFECT THEIR TITLE TO SUCH CLAIMS BY PAYMENT AS
AFORESAID." 

RESIDING IN SAID TERRITORY, WHAT LANDS, IF ANY, SHOULD BE RESERVED FOR
THEIR USE, WHAT PROVISION SHALL BE MADE FOR THEIR EDUCATION, WHAT
RIGHTS BY OCCUPATION OF SETTLERS SHOULD BE RECOGNIZED," ETC. 

RESPONDENT CONTENDS, AND THE COURT APPARENTLY AGREES, THAT THIS
PROVISION SHOULD BE READ, NOT AS RECOGNIZING INDIAN TITLE, BUT AS
RESERVING THE QUESTION WHETHER THEY HAVE ANY RIGHTS IN THE LAND. 

IT IS SAID THAT SINCE SEC. 8 CONTEMPLATES THE POSSIBLE FUTURE
ACQUISITION OF "TITLE," IT EXPRESSLY NEGATES ANY IDEA THAT THE INDIANS
HAVE ANY "TITLE."  THAT IS THE ARGUMENT; AND THAT APPARENTLY IS THE
CONCLUSION OF THE COURT. 

THERE ARE, IT SEEMS TO ME, TWO ANSWERS TO THAT PROPOSITION. 

FIRST.  THE FIRST TURNS ON THE WORDS OF THE ACT.  THE GENERAL LAND
LAWS OF THE UNITED STATES WERE NOT MADE APPLICABLE TO ALASKA.  SEC. 8. 
NO PROVISION WAS MADE FOR OPENING UP THE LANDS TO SETTLEMENT, FOR
CLEARING TITLES, FOR ISSUING PATENTS, ALL AS EXPLAINED IN GRUENING, THE
STATE OF ALASKA (1954), P. 47 ET SEQ. THERE WERE, HOWEVER, AT LEAST TWO
CLASSES OF CLAIMANTS TO ALASKAN LANDS - ONE, THE INDIANS; THE OTHER,
THOSE WHO HAD MINING CLAIMS.  SECTION 8 OF THE ACT DID NOT RECOGNIZE
THE "TITLE" OF EITHER.  RATHER, IT PROVIDED THAT ONE GROUP, THE MINERS,
SHOULD BE ALLOWED TO "PERFECT THEIR TITLE"; WHILE THE OTHERS, THE
INDIANS, WERE TO ACQUIRE "TITLE" ONLY AS PROVIDED BY FUTURE
LEGISLATION.  OBVIOUSLY THE WORD "TITLE" WAS USED IN THE CONVEYANCER'S
SENSE; AND SEC. 8 DID SERVICE IN OPENING THE DOOR TO PERFECTION OF
"TITLE" IN THE CASE OF MINERS, AND IN DEFERRING THE PERFECTION OF
"TITLE" IN THE CASE OF THE INDIANS. 

SECOND.  THE SECOND PROPOSITION TURNS ON THE LEGISLATIVE HISTORY OF
SEC. 8.  SECTION 8 OF THE ACT COMMANDS THAT THE INDIANS "SHALL NOT BE
DISTURBED IN THE POSSESSION OF ANY LANDS ACTUALLY IN THEIR USE OR
OCCUPATION OR NOW CLAIMED BY THEM."  THE WORDS "OR NOW CLAIMED BY THEM"
WERE ADDED BY AN AMENDMENT OFFERED DURING THE DEBATES BY SENATOR PLUMB
OF KANSAS.  15 CONG. REC. 627-628.  SENATOR BENJAMIN HARRISON, IN
ACCEPTING THE AMENDMENT, SAID, "  ...  IT WAS THE INTENTION OF THE
COMMITTEE TO PROTECT TO THE FULLEST EXTENT ALL THE RIGHTS OF THE
INDIANS IN ALASKA AND OF ANY RESIDENTS WHO HAD SETTLED THERE, BUT AT
THE SAME TIME TO ALLOW THE DEVELOPMENT OF THE MINERAL RESOURCES  ...
."  ID. 

SENATOR PLUMB SPOKE SOMEWHAT HUMOROUSLY ABOUT THE RIGHTS OF THE
INDIANS: 

"I DO NOT KNOW BY WHAT TENURE THE INDIANS ARE THERE NOR WHAT
ORDINARILY CHARACTERIZES THEIR CLAIM OF TITLE, BUT IT WILL BE OBSERVED
THAT THE LANGUAGE OF THE PROVISO I PROPOSE TO AMEND PUTS THEM INTO VERY
SMALL QUARTERS.  I THINK ABOUT 2 FEET BY 6 TO EACH INDIAN WOULD BE THE
PROPER CONSTRUCTION OF THE LANGUAGE 'ACTUALLY IN THEIR USE OR
OCCUPATION.'  UNDER THE GENERAL RULE OF OCCUPATION APPLIED TO AN INDIAN
BY A WHITE MAN, THAT WOULD BE A TOLERABLY LIMITED OCCUPATION AND MIGHT
POSSIBLY LAND THEM IN THE SEA."  ID., AT 530.    SENATOR PLUMB WENT ON
TO SAY, "I PROPOSE THAT THE INDIAN SHALL AT LEAST HAVE AS MANY RIGHTS
AFTER THE PASSAGE OF THIS BILL AS HE HAD BEFORE."  ID., AT 531. 
SENATOR HARRISON REPLIED THAT IT WAS THE INTENTION OF THE COMMITTEE "TO
SAVE FROM ALL POSSIBLE INVASION THE RIGHTS OF THE INDIAN RESIDENTS OF
ALASKA."  ID., AT 531.  HE GAVE EMPHASIS TO THE POINT BY THIS
ADDITION: 

"IT WAS THE OBJECT OF THE COMMITTEE ABSOLUTELY TO SAVE THE RIGHTS OF
ALL OCCUPYING INDIANS IN THAT TERRITORY UNTIL THE REPORT WHICH IS
PROVIDED FOR IN ANOTHER SECTION OF THE BILL COULD BE MADE, WHEN THE
SECRETARY OF THE INTERIOR COULD ASCERTAIN WHAT THEIR CLAIMS WERE AND
COULD DEFINITELY DEFINE ANY RESERVATIONS THAT WERE NECESSARY TO BE SET
APART FOR THEIR USE.  WE DID NOT INTEND TO ALLOW ANY INVASION OF THE
TERRITORY BY WHICH PRIVATE RIGHTS COULD BE ACQUIRED BY ANY PERSON
EXCEPT IN SO FAR AS IT WAS NECESSARY IN ORDER TO ESTABLISH TITLE TO
MINING CLAIMS IN THE TERRITORY.  BELIEVING THAT THAT WOULD OCCUPY BUT
THE SMALLEST PORTION OF THE TERRITORY HERE AND THERE, ISOLATED AND
DETACHED AND SMALL QUANTITIES OF GROUND, WE THOUGHT THE RESERVATION OF
LANDS OCCUPIED BY THE INDIANS OR BY ANYBODY ELSE WAS A SUFFICIENT GUARD
AGAINST ANY SERIOUS INVASION OF THEIR RIGHTS."  ID., AT 531. 

THE CONCLUSION SEEMS CLEAR THAT CONGRESS IN THE 1884 ACT RECOGNIZED
THE CLAIMS OF THESE INDIANS TO THEIR ALASKAN LANDS.  WHAT THOSE LANDS
WERE WAS NOT KNOWN.  WHERE THEY WERE LOCATED, WHAT WERE THEIR METES AND
BOUNDS, WERE ALSO UNKNOWN.  SENATOR PLUMB THOUGHT THEY PROBABLY WERE
SMALL AND RESTRICTED.   BUT ALL AGREED THAT THE INDIANS WERE TO KEEP
THEM, WHEREVER THEY LAY.  IT MUST BE REMEMBERED THAT THE CONGRESS WAS
LEGISLATING ABOUT A TERRITORY CONCERNING WHICH LITTLE WAS KNOWN.  NO
REPORT WAS AVAILABLE SHOWING THE NATURE AND EXTENT OF ANY CLAIMS TO THE
LAND.  NO INDIAN WAS PRESENT TO POINT OUT HIS TRIBE'S DOMAIN. 
THEREFORE, CONGRESS DID THE HUMANE THING OF SAVING TO THE INDIANS ALL
RIGHTS CLAIMED; IT LET THEM KEEP WHAT THEY HAD PRIOR TO THE NEW ACT. 
THE FUTURE COURSE OF ACTION WAS MADE CLEAR - CONFLICTING CLAIMS WOULD
BE RECONCILED AND THE INDIAN LANDS WOULD BE PUT INTO RESERVATIONS. 

THAT PURPOSE IS WHOLLY AT WAR WITH THE ONE NOW ATTRIBUTED TO THE
CONGRESS OF RESERVING FOR SOME FUTURE DAY THE QUESTION WHETHER THE
INDIANS WERE TO HAVE ANY RIGHTS TO THE LAND* 

*THE READING WHICH THE COURT GIVES THE 1884 ACT DISPELS THE SLIGHT
HOPE WHICH ERNEST GRUENING, OUR FOREMOST ALASKAN AUTHORITY, FOUND IN
ITS PROVISIONS DEALING WITH THE INDIANS.  IN THE STATE OF ALASKA (1954)
355-356, GRUENING STATES: 

"FOR THE FIRST SEVENTEEN YEARS OF UNITED STATES RULE OVER ALASKA, THE
ABORIGINAL INHABITANTS, WHO CONSTITUTED AN OVERWHELMING MAJORITY OF ITS
APPROXIMATELY THIRTY THOUSAND SOULS, WERE AS DEVOID OF ATTENTION, OR
EVEN MENTION, AS WAS THE POPULATION AS A WHOLE.  THEY BECAME, BY VIRTUE
OF THE ORGANIC ACT OF 1884, IN ONE RESPECT AT LEAST, A MILDLY
PRIVILEGED, OR AT LEAST A LESS DISADVANTAGED, GROUP, AS COMPARED WITH
SUBSEQUENTLY ARRIVING AMERICANS. 

"FOR THE ACT PROVIDED 'THAT THE INDIANS OR OTHER PERSONS  ...  SHALL
NOT BE DISTURBED IN THE POSSESSION OF ANY LANDS ACTUALLY IN THEIR USE
OR OCCUPATION OR NOW CLAIMED BY THEM.'  THE NATIVES' RIGHT OF OCCUPANCY
WAS, IN OTHER WORDS, AFFIRMED, WHILE ALL LATER ARRIVALS HAD TO AWAIT
THE SLOW EVOLUTION OF THE LAND LAWS FOR EVEN THE ASSURANCE OF THE RIGHT
TO POSSESS LAND. 

"'THE TERMS UNDER WHICH SUCH PERSONS (THE INDIANS OR OTHER PERSONS),'
CONTINUED THE ACT, 'MAY ACQUIRE TITLE TO SUCH LANDS IS RESERVED FOR
FUTURE LEGISLATION BY CONGRESS.' 

"SEVENTY YEARS OF FUTURE HAD PASSED BY 1954 AND THE LEGISLATION BY
WHICH THE TITLES TO INDIANS' LANDS COULD BE ACQUIRED HAD NOT YET BEEN
ENACTED BY CONGRESS." 

THERE REMAINS THE QUESTION WHAT KIND OF "TITLE" THE RIGHT OF USE AND
OCCUPANCY EMBRACES.  SOME INDIAN RIGHTS CONCERN FISHING ALONE.  SEE
TULEE V. WASHINGTON, 315 U.S. 681.  OTHERS MAY INCLUDE ONLY HUNTING OR
GRAZING OR OTHER LIMITED USES.  WHETHER THE RIGHTS RECOGNIZED IN 1884
EMBRACED RIGHTS TO TIMBER, LITIGATED HERE, HAS NOT BEEN DETERMINED BY
THE FINDERS OF FACT.  THE CASE SHOULD BE REMANDED FOR THOSE FINDINGS. 
IT IS SUFFICIENT NOW ONLY TO DETERMINE THAT UNDER THE JURISDICTIONAL
ACT THE COURT OF CLAIMS IS EMPOWERED TO ENTERTAIN THE COMPLAINT BY
REASON OF THE RECOGNITION AFFORDED THE INDIAN RIGHTS BY THE ACT OF
1884. 
..END :















UNITED STATES V. GUY W. CAPPS, INC. 348 U.S. 296 


NO. 14.  ARGUED NOVEMBER 15, 1954 - DECIDED FEBRUARY 7, 1955 - 204 F.2D
655, AFFIRMED ON OTHER GROUNDS. 


IN ORDER TO PREVENT INTERFERENCE WITH ITS POTATO PRICE-SUPPORT PROGRAM
UNDER THE AGRICULTURAL ACT OF 1948, THE UNITED STATES EXCHANGED
DIPLOMATIC CORRESPONDENCE WITH CANADA UNDER WHICH THE LATTER AGREED TO
PERMIT THE EXPORT OF NO POTATOES TO THE UNITED STATES EXCEPT SEED
POTATOES AND TO OBTAIN ASSURANCES THAT THEY WOULD NOT BE DIVERTED OR
RECONSIGNED FOR TABLE STOCK PURPOSES.  IN IMPORTING SEED POTATOES FROM
CANADA, RESPONDENT GAVE SUCH ASSURANCE TO THE EXPORTER.  CLAIMING THAT
SUCH ASSURANCE CONSTITUTED A CONTRACT MADE FOR ITS BENEFIT AND THAT
RESPONDENT HAD VIOLATED IT BY SELLING SUCH POTATOES FOR TABLE STOCK
PURPOSES, THE UNITED STATES SUED RESPONDENT FOR DAMAGES ALLEGED TO HAVE
RESULTED FROM THE UNITED STATES BEING FORCED TO PURCHASE AN EQUIVALENT
AMOUNT OF DOMESTIC POTATOES.  HELD:  ON THE RECORD, THERE WAS NO CLEAR
ERROR IN THE DISTRICT COURT'S DIRECTING A VERDICT FOR RESPONDENT ON THE
GROUND THAT THE EVIDENCE WAS NOT SUFFICIENT TO PROVE THE ALLEGED BREACH
OF CONTRACT, AND THE JUDGMENT IS AFFIRMED ON THAT GROUND ALONE.  PP.
296-305. 

UNITED STATES V. GUY W. CAPPS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE UNITED STATES DISTRICT COURT DIRECTED A VERDICT FOR
RESPONDENT BECAUSE PETITIONER FAILED TO PRESENT EVIDENCE OF EITHER A
BREACH OF CONTRACT OR RESULTING DAMAGES SUFFICIENT TO SUSTAIN A VERDICT
FOR PETITIONER.  THE COURT OF APPEALS, HOWEVER, AFFIRMED THE JUDGMENT
ON THE GROUND THAT THE ALLEGED CONTRACT WAS UNENFORCEABLE.  FOR THE
REASONS HEREAFTER STATED, WE AGREE WITH THE DISTRICT COURT THAT THE
EVIDENCE WAS NOT SUFFICIENT TO SUSTAIN THE ALLEGED BREACH OF CONTRACT. 
ACCORDINGLY, WE DO NOT REACH OR PASS UPON THE OTHER GROUNDS DISCUSSED
BY THE COURT OF APPEALS. 

IN 1948, THE CROPS OF IRISH POTATOES IN THE UNITED STATES AND CANADA
WERE AMONG THE LARGEST ON RECORD.  AS A RESULT, THE UNITED STATES, IN
SEC. 1(B) OF THE AGRICULTURAL ACT OF 1948, 62 STAT. 1247, 1248,
OBLIGATED ITSELF TO SUPPORT THE SALE OF SUCH POTATOES AT 90% OF THEIR
PARITY PRICE.  THIS PROGRAM WAS CARRIED OUT THROUGH AGREEMENTS OF THE
COMMODITY CREDIT CORPORATION TO PURCHASE, FROM ELIGIBLE GROWERS OR
DEALERS IN THE UNITED STATES, ALL IRISH POTATOES HARVESTED BEFORE
JANUARY 1, 1949, PROVIDED SUCH POTATOES COULD NOT BE SOLD COMMERCIALLY
AT 90% OF PARITY.  AS THE UNSUPPORTED CANADIAN PRICES WERE LOWER THAN
THE SUPPORTED PRICES IN THE UNITED STATES, IT BECAME PROFITABLE TO
IMPORT CANADIAN POTATOES DESPITE THE TARIFF AND FREIGHT CHARGES. 
RECOGNIZING THAT FACT, CONGRESS AUTHORIZED INVESTIGATIONS BY THE TARIFF
COMMISSION, UNDER THE PRESIDENT'S DIRECTION, WHICH MIGHT LEAD TO
IMPOSING QUANTITATIVE LIMITATIONS ON IMPORTS OR TO INCREASING IMPORT
FEES.  62 STAT. 1248-1250, 7 U.S.C. SEC. 624. 

HOWEVER, WITHOUT RESORTING TO THAT PROCEDURE, THE UNITED STATES ACTED
THROUGH DIPLOMATIC CHANNELS.   ITS ACTING SECRETARY OF STATE AND THE
CANADIAN AMBASSADOR EXCHANGED NOTES ON NOVEMBER 23, 1948, PURPORTING TO
CONSUMMATE AN EXECUTIVE AGREEMENT EFFECTIVE AT ONCE.  FOR THEIR TEXT
SEE APPENDIX, INFRA, AT 305-309.  OF SPECIAL SIGNIFICANCE TO THIS
LITIGATION ARE THE UNDERTAKINGS MADE BY CANADA, IN ITS NOTE, TO PLACE
ITS IRISH POTATOES UNDER EXPORT CONTROL, TO WITHHOLD EXPORT PERMITS FOR
THE MOVEMENT OF TABLE STOCK POTATOES TO THE UNITED STATES, AND TO ISSUE
EXPORT PERMITS FOR THE SHIPMENT OF CANADIAN CERTIFIED SEED POTATOES TO
THE UNITED STATES ONLY UNDER SPECIFIED CIRCUMSTANCES.  THOSE
CIRCUMSTANCES WERE THAT THE SHIPMENTS BE LIMITED TO SPECIFIED STATES
WHERE THERE WAS A LEGITIMATE DEMAND FOR CERTIFIED SEED POTATOES AND TO
A SHORT PERIOD BEFORE THE NORMAL SEEDING TIME.  PERMITS WERE TO BE
GRANTED ONLY TO EXPORTERS HAVING FIRM ORDERS FROM LEGITIMATE UNITED
STATES USERS OF CANADIAN SEED POTATOES, AND THOSE EXPORTERS WERE "TO
HAVE INCLUDED IN ANY CONTRACT INTO WHICH THEY MIGHT ENTER WITH A UNITED
STATES SEED POTATO IMPORTER A CLAUSE IN WHICH THE IMPORTER WOULD GIVE
AN ASSURANCE THAT THE POTATOES WOULD NOT BE DIVERTED OR RECONSIGNED FOR
TABLE STOCK PURPOSES."  APPENDIX, INFRA, AT 306.  THE AGREEMENT
TERMINATED JUNE 20, 1949. 

IN DECEMBER 1948, GUY W. CAPPS, INC., A VIRGINIA CORPORATION,
RESPONDENT HEREIN, BOUGHT 48,544 ONE-HUNDRED-POUND BAGS OF CANADIAN
CERTIFIED IRISH SEED POTATOES FROM H.B. WILLIS, INC., OF CHARLOTTETOWN,
PRINCE EDWARD ISLAND, A CANADIAN EXPORTER.  BEFORE THE EXPORTER'S
SHIPMENT OF THEM ON THE S.S. EMPIRE GANGWAY TO RESPONDENT AT
JACKSONVILLE, FLORIDA, RESPONDENT WIRED THE EXPORTER AS FOLLOWS:
"CERTIFIED SEED POTATOES LOADED ON S.S. GANGWAY ARE FOR PLANTING IN
FLORIDA AND GEORGIA."  THE SHIPMENT ARRIVED AT JACKSONVILLE JANUARY 9,
1949.  (FN1)  ON JANUARY 11, THE POTATOES WERE ALL INVOICED BY
RESPONDENT TO THE ATLANTIC COMMISSION COMPANY AT JACKSONVILLE AS
"48,544 SAX CANADA NO. 1 SEED POTATOES   $3.35 F.O.B."  (FN2) 

IN JANUARY 1951, THE UNITED STATES FILED THE INSTANT ACTION AGAINST
RESPONDENT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA, CLAIMING THAT THE ABOVE CIRCUMSTANCES CONSTITUTED A
CONTRACT BETWEEN THE EXPORTER AND RESPONDENT FOR THE BENEFIT OF THE
UNITED STATES.  THE COMPLAINT ALLEGED FURTHER, UPON INFORMATION AND
BELIEF, THAT, IN JANUARY 1949, RESPONDENT, IN VIOLATION OF SUCH
CONTRACT, "SOLD THE 48,544 SACKS OF SEED POTATOES FOR TABLE STOCK
PURPOSES" TO THE DAMAGE OF THE UNITED STATES IN THE AMOUNT OF
APPROXIMATELY $150,486, "IN THAT FOR EACH QUANTITY OF POTATOES SO
IMPORTED FROM CANADA AND SOLD FOR TABLE STOCK IN THE UNITED STATES, A
SUBSTANTIALLY EQUIVALENT QUANTITY OF POTATOES PRODUCED IN THE UNITED
STATES WAS OFFERED FOR SALE TO THE DEPARTMENT OF AGRICULTURE, AND HAD
TO BE AND WAS PURCHASED BY THE DEPARTMENT UNDER THE AGRICULTURAL ACT OF
1948." 

RESPONDENT'S MOTION TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF COULD BE GRANTED WAS DENIED.  100 F. SUPP. 30. 
HOWEVER, AT THE CLOSE OF PETITIONER'S CASE AND AFTER ARGUMENT OF
COUNSEL, THE COURT DIRECTED A VERDICT FOR RESPONDENT.  JUDGMENT WAS
ENTERED ACCORDINGLY.   THE COURT'S FINDINGS OF FACT AND CONCLUSIONS OF
LAW WERE CONTAINED IN ITS ORAL OPINION.  THAT OPINION, WHICH HAS NOT
BEEN PUBLISHED, INCLUDED THE FOLLOWING HIGHLY SIGNIFICANT STATEMENTS: 

"THE ACTION HERE IS FOR BREACH OF CONTRACT MADE BETWEEN A CANADIAN
EXPORTER AND CAPPS, THE AMERICAN IMPORTER, AND SPECIFICALLY OF A
STIPULATION PLACED IN THAT CONTRACT WHICH THE COURT HAS HELD WAS FOR
THE BENEFIT OF THE UNITED STATES. 

"THE EXPRESSION CONSTITUTING THAT STIPULATION IS THAT CERTIFIED SEED
POTATOES LOADED ON THE S.S. GANGWAY ARE FOR PLANTING IN FLORIDA AND
GEORGIA.  NOW, ASSUMING THAT THE COURT IS CORRECT IN HOLDING THAT THE
STIPULATION IS AN AGREEMENT WITHIN THE MEANING OF THE EXECUTIVE TREATY
OR AN ASSURANCE, AS IT IS CALLED IN THE EXECUTIVE TREATY, TO THE EFFECT
THAT THE POTATOES WOULD NOT BE DIVERTED OR RECONSIGNED FOR TABLE STOCK
PURPOSES - I SAY ASSUMING THAT THE COURT IS CORRECT IN HOLDING THAT
THIS PROVISION IS AN ASSURANCE, THERE IS NO PROOF HERE SUFFICIENT TO GO
TO THE JURY THAT THERE HAS BEEN SUCH A DIVERSION OR RECONSIGNMENT, OR
THAT THERE HAS BEEN A LACK OF DILIGENCE OR CARE ON THE PART OF THIS
DEFENDANT TO SEE TO IT THAT ITS ASSURANCE WAS CARRIED OUT. 

"IN THE FIRST PLACE, THE ONLY DIVERSION OR RECONSIGNMENT WAS FROM THE
DEFENDANT TO THE ATLANTIC COMMISSION COMPANY.  NOW THAT WAS NOT A
DIVERSION OR RECONSIGNMENT FOR TABLE STOCK PURPOSES.  NOR DOES IT
EVIDENCE ANY WANT OF CARE ON THE PART OF THE DEFENDANT TO SEE THAT THE
ASSURANCE WAS KEPT, BECAUSE THE EVIDENCE SHOWS THAT THIS DEFENDANT HAD
FROM YEAR TO YEAR SOLD TO ATLANTIC, POTATOES EXCLUSIVELY FOR SEED
PURPOSES.  THE EVIDENCE DOES NOT JUSTIFY OR WOULD NOT JUSTIFY THE JURY
IN DRAWING A CONCLUSION THAT IT WAS A RECKLESS ABANDONMENT BY THE
DEFENDANT OF ITS OBLIGATION TO SEE TO THE USE OF THESE POTATOES BECAUSE
THE DEFENDANT HAD THE RIGHT TO RELY UPON ITS PREVIOUS EXPERIENCES. 

"BUT GOING FURTHER, AND ASSUMING THAT IT WAS INCUMBENT UPON THE
DEFENDANT TO FOLLOW UP AND SEE THAT THIS RECONSIGNMENT DID NOT LEAD TO
THE USE OF THE POTATOES FOR TABLE PURPOSES, WE FIND THAT THE A&P, TO
WHOM ATLANTIC SOLD, DID SELL SEED POTATOES.  IT IS TRUE THAT IT WAS NOT
ITS ENTIRE TRADE IN POTATOES, BUT IT DID SELL A LARGE AMOUNT, DESCRIBED
AS ITS SECONDARY FUNCTION, FOR SEED PURPOSES, AND THE OTHER SALES BY
ATLANTIC TO WHOLESALERS OR TO THE TRADE, AS IT IS SPOKEN OF, WERE TO
FIRMS WHICH USED POTATOES FOR SEED PURPOSES OR DISPOSED OF THEM FOR
SEED PURPOSES, SO THAT THE SALES BY THE DEFENDANT HERE WERE EQUALLY
CONSISTENT WITH THE COMPLIANCE AS WITH THE VIOLATION OF THE
ASSURANCE." 

THE COURT OF APPEALS DISAGREED WITH THE DISTRICT COURT ON THE ABOVE
POINTS.  (FN3)  HOWEVER, IT AFFIRMED THE JUDGMENT ON THE GROUND THAT
THE INTERNATIONAL AGREEMENT, WHICH THE CONTRACT BETWEEN RESPONDENT AND
THE EXPORTER SOUGHT TO CARRY OUT, WAS VOID.  THE COURT REGARDED IT AS
NOT AUTHORIZED BY CONGRESS AND AS CONTRAVENING THE PROVISION FOR
PROCEDURE THROUGH THE TARIFF COMMISSION.  THE COURT ALSO HELD THAT THE
SUIT MUST FAIL BECAUSE NO CAUSE OF ACTION HAD BEEN CREATED BY CONGRESS
FOR THIS TYPE OF INJURY.  204 F.2D 655, 658-661.  WE GRANTED CERTIORARI
TO DETERMINE WHETHER THE SIGNIFICANT CONSTITUTIONAL AND STATUTORY
QUESTIONS DISCUSSED BY THE COURT OF APPEALS WERE NECESSARY FOR THE
DECISION OF THE CASE AND, IF SO, TO GIVE THEM CONSIDERATION.  346 U.S.
884. 

WE HAVE FIRST EXAMINED THE RECORD IN ORDER TO PASS UPON THE
PRELIMINARY QUESTIONS ON WHICH THE COURT OF APPEALS DISAGREED WITH THE
TRIAL COURT.  SEE WALLING V. GENERAL INDUSTRIES CO., 330 U.S. 545, 547,
550, AND SEE ALSO, STORY PARCHMENT CO. V. PATERSON PARCHMENT CO., 282
U.S. 555, 560, 567-568. 

RESPONDENT'S ALLEGED OBLIGATION IS STATED IN ITS FIRST TELEGRAM,
WHICH MUST BE READ IN THE LIGHT OF THE ABOVE-MENTIONED CORRESPONDENCE
BETWEEN THE UNITED STATES AND CANADA.  THAT CORRESPONDENCE RECOGNIZED
THAT IMPORTATIONS OF CANADIAN SEED POTATOES, AS WELL AS OF CANADIAN
TABLE STOCK POTATOES, MIGHT DISPLACE ELIGIBLE AMERICAN POTATOES IN
AMERICAN COMMERCIAL MARKETS AND THUS MIGHT ADD TO THE BURDEN OF THE
AMERICAN PRICE-SUPPORT PROGRAM.  THE CORRESPONDENCE, NEVERTHELESS, DID
NOT SEEK TO EXCLUDE CANADIAN SEED POTATOES.  ON THE CONTRARY, IT
PROVIDED FOR THE CONTINUANCE OF SHIPMENTS OF SEED POTATOES TO SPECIFIED
STATES IN THE UNITED STATES, DURING A SHORT PERIOD IMMEDIATELY PRIOR TO
THE NORMAL SEEDING TIME.  IN ADDITION, CANADA AGREED TO REQUIRE ITS
EXPORTERS TO SECURE ASSURANCE FROM EACH IMPORTER OF CANADIAN SEED
POTATOES THAT SUCH POTATOES WOULD NOT BE DIVERTED OR RECONSIGNED FOR
TABLE STOCK PURPOSES.  IN EFFECT, THIS AGREEMENT STOPPED THE REGULAR
CANADIAN-AMERICAN TRADE IN CANADIAN TABLE STOCK POTATOES, WHILE
PRESERVING SUCH TRADE IN CANADIAN SEED POTATOES.  THERE WAS NO
SUGGESTION THAT EACH IMPORTER, DURING THE SHORT OPEN SEASON FOR
CANADIAN SEED POTATOES, HAD TO TAKE ANY NEW OR EXTRAORDINARY
AFFIRMATIVE STEPS TO SEE TO IT THAT THE ULTIMATE PURCHASERS NEVER ATE
THEIR SEED POTATOES, OR THAT EACH AMERICAN RETAILER OF CANADIAN SEED
POTATOES, IN ITS USUAL COURSE OF BUSINESS, SEGREGATED SUCH POTATOES
FROM TABLE STOCK POTATOES IN ANY MANNER NOT CUSTOMARY IN THE SALE OF
SEED POTATOES. 

THE UNDISPUTED EVIDENCE SHOWED THAT THE ENTIRE SHIPMENT TO
JACKSONVILLE WAS MADE IN CONTAINERS WITH MARKINGS AND TAGS IDENTIFYING
THE POTATOES AS "CANADIAN NO. 1 SEED POTATOES."  THERE WAS NO SHOWING
THAT THIS IDENTIFICATION WAS SEPARATED FROM THE POTATOES AT ANY POINT
SHORT OF THE ULTIMATE OFFERING OF SOME OF THE POTATOES AT RETAIL. 
THERE WAS, IN SHORT, NO EVIDENCE THAT ANY OF THE POTATOES WERE AT ANY
TIME RECONSIGNED OR OTHERWISE TREATED EXCEPT AS HAD BEEN CUSTOMARY IN
PRIOR COMMERCIAL DEALINGS IN SEED POTATOES. 

AT JACKSONVILLE THE ENTIRE SHIPMENT WAS INVOICED BY RESPONDENT TO THE
ATLANTIC COMMISSION COMPANY AS "CANADIAN NO. 1 SEED POTATOES."  MOST OF
THE 10,000 SACKS (WHICH, AT THE TIME OF THEIR DELIVERY TO THAT COMPANY
IN JACKSONVILLE, WERE RESOLD BY IT TO RESPONDENT) WERE INVOICED BY
RESPONDENT TO OTHER CUSTOMERS IN A LIKE MANNER.  (FN4)  THE ATLANTIC
COMMISSION COMPANY, IN TURN, INVOICED TO ITS PURCHASERS, IN THE SAME
MANNER, THE SACKS WHICH IT RECEIVED FROM RESPONDENT.  OF THEM, 13,627
SACKS WERE INVOICED BY THE COMMISSION COMPANY TO ITS PARENT COMPANY,
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, AT THREE POINTS IN FLORIDA
AND ONE IN GEORGIA, BUT 1,641 SACKS WERE INVOICED TO POINTS IN
ALABAMA.  THE GREAT ATLANTIC & PACIFIC TEA COMPANY PRIMARILY SOLD
FOODSTUFFS BUT ALSO DEALT IN VEGETABLES FOR PLANTING PURPOSES, SUCH AS
SEED POTATOES, ONION SETS AND CABBAGE SETS.  IT SOLD SEED POTATOES NOT
ONLY TO HOME GARDENERS BUT TO PLANTERS OF SMALL COMMERCIAL ACREAGES. 
THE COMMISSION COMPANY INVOICED THE REMAINING 24,926 SACKS TO OVER 30
SEPARATE DEALERS IN FLORIDA AND GEORGIA, BUT INVOICED 2,309 TO POINTS
IN ALABAMA.  ALL OF THE CONSIGNEES WERE DEALERS IN VEGETABLES AND
GROCERIES, AND THE PRIMARY VOLUME OF THEIR TRADE WAS IN ARTICLES FOR
FOOD.  BUT THERE WAS TESTIMONY THAT SOME OF THESE DEALERS CUSTOMARILY
HANDLED SEED POTATOES FOR PLANTING PURPOSES AND THERE WAS NO EVIDENCE
THAT ANY OF THEM DID NOT.  RESPONDENT PREVIOUSLY HAD SOLD SEED POTATOES
TO THE ATLANTIC COMMISSION COMPANY AND THAT COMPANY HAD USED CHANNELS
OF DISTRIBUTION COMPARABLE TO THOSE USED IN THIS INSTANCE.  THERE WAS
NO EVIDENCE OF THE RECONSIGNMENT OF ANY OF THESE SEED POTATOES FOR
TABLE STOCK, OR OF THE DIVERSION OF ANY OF THEM FOR THE COMMERCIAL
CHANNELS THERETOFORE USUALLY USED FOR SALES OF SEED POTATOES IN THIS
AREA DURING THE PLANTING SEASON.  EXCEPTION HAS NOT BEEN TAKEN TO THE
STATES DESIGNATED OR TO THE TIMES WHEN THE SALES WERE TO BE MADE. 

THE EVIDENCE ALSO DID NOT SUPPORT THE SUGGESTION THAT SOME OF THESE
POTATOES WERE UNSUITABLE FOR PLANTING IN THE AREAS DESIGNATED.  IT WAS
NOT ENOUGH THAT ONE WITNESS SAID THAT ONLY 20% OF THE ORIGINAL SHIPMENT
CONSISTED OF POTATOES BELONGING TO THE THREE MOST POPULAR VARIETIES
GROWN IN FLORIDA IN THAT YEAR. 

THERE WAS NO EVIDENCE OF BAD FAITH, NEGLECT OR CARELESSNESS ON THE
PART OF RESPONDENT IN PERFORMING ITS CONTRACTUAL OBLIGATIONS.  THERE
WAS NO EVIDENCE OF ANY INTENT OF RESPONDENT THAT THE POTATOES BE SOLD
FOR TABLE USE.  IT FREELY ACKNOWLEDGED THE EXISTENCE OF THE
INTERNATIONAL AGREEMENT AND DECLARED ITS PURPOSE TO COOPERATE WITH IT. 
IT WAS CONCEDED THAT THESE POTATOES WERE SPECIALLY SUITED FOR USE AS
SEED BUT ALSO THAT THEY WERE OF HIGH-GRADE EDIBLE QUALITY.  THERE WAS,
HOWEVER, NO EVIDENCE THAT ANY SUBSTANTIAL PART OF THESE POTATOES
ULTIMATELY WAS EATEN.  THE MOST THAT APPEARED WAS THAT TEN POUNDS OF
THE SEED POTATOES WERE SOLD BY A GROCERY IN ST. AUGUSTINE, FLORIDA, TO
TWO WOMEN WHO APPEARED TO BE HOUSEWIVES BUYING FOR HOME USE.  THERE WAS
ALSO EVIDENCE THAT A FEW POTATOES, PROBABLY FROM THE SHIPMENT, WERE
SOLD TO CUSTOMERS OF THE SAME TYPE BY A JACKSONVILLE STORE AND BY AN
A&P MARKET IN ATLANTA, GEORGIA.    IN SUM, ALL THAT RESPONDENT DID WAS
TO SELL SEED POTATOES, LABELED AS SEED POTATOES, IN SEEDING TIME TO
CONCERNS WHICH NORMALLY DEALT IN SEED POTATOES.  UNDER THESE
CIRCUMSTANCES, THE DISTRICT COURT WAS NOT CLEARLY IN ERROR IN MAKING
THE FINDINGS IT DID OR IN DIRECTING THE VERDICT FOR RESPONDENT ON THE
GROUND THAT NO BREACH OF CONTRACT WAS SHOWN.  WALLING V. GENERAL
INDUSTRIES CO., 330 U.S. 545. 

IN VIEW OF THE FOREGOING, THERE IS NO OCCASION FOR US TO CONSIDER THE
OTHER QUESTIONS DISCUSSED BY THE COURT OF APPEALS.  THE DECISION IN
THIS CASE DOES NOT REST UPON THEM.  AFFIRMED. 

FN1  JANUARY 10, 1949, THE ACTING CHIEF OF THE POTATO DIVISION, FRUIT
AND VEGETABLE BRANCH OF THE UNITED STATES DEPARTMENT OF AGRICULTURE,
WIRED RESPONDENT: 

"HAVE BEEN INFORMED ACCO (ATLANTIC COMMISSION COMPANY)
REPRESENTATIVE, JACKSONVILLE, FLORIDA, CLAIMING YOU HAVE SPECIAL
PERMISSION FROM DEPARTMENT TO SELL CANADIAN SEED FOR EDIBLE USE, IF NO
DEMAND FOR SEED.  PLEASE ADVISE BASIS FOR CLAIM.  ACCOUNT SUCH
DISPOSITION IS CONTRARY TO THE INTENT OF U.S. CANADIAN AGREEMENT AND TO
CANADIAN REQUIREMENT REGARDING DIVERSION OR RECONSIGNMENT." 

JANUARY 11, 1949, RESPONDENT WIRED IN REPLY:  "HAVE NOT MADE SUCH
STATEMENT.  ONLY PUT SEED POTATOES JACKSONVILLE FOR SEED PURPOSES" AND,
LATER, ON THE SAME DAY: 

"I REALIZE FULLY THE AGREEMENT WITH CANADA, ITS INTENT AND WANT TO
AND EXPECT TO COOPERATE WITH THE PROGRAM.  I AM ONLY BRINGING IN SEED
FOR SEED PURPOSES.  CANADIAN DEALERS ARE NOW QUOTING SEED SAME
TERRITORY I AM SELLING.  HAVE HAD QUOTATIONS AS LOW AS 365
HUNDREDWEIGHT DELIVERED NORFOLK, PAST WEEK." 

FN2  "LESS 10,000 SAX CANADA NO. 1 SEED POTATOES   $3.65 F.O.B." 
THESE 10,000 SACKS WERE IMMEDIATELY RESOLD BY THE ATLANTIC COMMISSION
COMPANY TO RESPONDENT.  OF THEM, 8,730 WERE INVOICED BY RESPONDENT ON
THE SAME DAY AS "CANADA NO. 1 SEED POTATOES" IN SEVEN LOTS TO FOUR
SEPARATE DEALERS IN FLORIDA AND GEORGIA, AT PRICES BETWEEN $3.75 AND $4
PER CWT.  THERE WAS NO EVIDENCE AS TO THE DISPOSITION OF THE REMAINING
1,270 SACKS. 

FN3  "WE HAVE LITTLE DIFFICULTY IN SEEING IN THE EVIDENCE BREACH OF
CONTRACT ON THE PART OF DEFENDANT AND DAMAGE RESULTING TO THE UNITED
STATES FROM THE BREACH."  204 F.2D, AT 658. 

FN4  SEE NOTE 2, SUPRA.

                       APPENDIX TO OPINION OF THE COURT. 

EXCHANGE OF NOTES BETWEEN THE CANADIAN AMBASSADOR TO THE UNITED
STATES AND THE ACTING SECRETARY OF STATE OF THE UNITED STATES, NOVEMBER
23, 1948:

              "THE CANADIAN AMBASSADOR TO THE SECRETARY OF STATE. 

                "CANADIAN EMBASSY

     "AMBASSADE DU CANADA

                                  "WASHINGTON, D.C., 

"NO. 538. 
"NOVEMBER 23RD, 1948. 

"SIR: 

"I HAVE THE HONOUR TO REFER TO THE DISCUSSIONS WHICH HAVE TAKEN PLACE
BETWEEN THE REPRESENTATIVES OF THE GOVERNMENT OF CANADA AND OF THE
GOVERNMENT OF THE UNITED STATES OF AMERICA REGARDING THE PROBLEMS WHICH
WOULD CONFRONT THE GOVERNMENT OF THE UNITED STATES IN THE OPERATION OF
ITS PRICE SUPPORT AND OTHER PROGRAMMES FOR POTATOES IF THE IMPORTS OF
CANADIAN POTATOES, DURING THIS CURRENT CROP YEAR, WERE TO CONTINUE TO
BE UNRESTRICTED.  AFTER CAREFUL CONSIDERATION OF THE VARIOUS
REPRESENTATIONS WHICH HAVE BEEN MADE TO THE CANADIAN GOVERNMENT ON THIS
SUBJECT, THE CANADIAN GOVERNMENT IS PREPARED TO: 

"1.  INCLUDE IRISH POTATOES IN THE LIST OF COMMODITIES FOR WHICH AN
EXPORT PERMIT IS REQUIRED UNDER THE PROVISIONS OF THE EXPORT AND IMPORT
PERMITS ACT. 

"2.  WITHHOLD EXPORT PERMITS FOR THE MOVEMENT OF TABLE STOCK POTATOES
TO THE UNITED STATES PROPER, EXCLUDING ALASKA. 

"3.  ISSUE EXPORT PERMITS FOR THE SHIPMENT OF CANADIAN CERTIFIED SEED
POTATOES TO THE UNITED STATES, BUT ONLY UNDER THE FOLLOWING
CIRCUMSTANCES: 

"(A)  EXPORT PERMITS WILL BE ISSUED TO CANADIAN EXPORTERS FOR
SHIPMENTS TO SPECIFIED STATES IN THE UNITED STATES AND SUCH PERMITS
WILL ONLY BE GRANTED WITHIN THE STRUCTURE OF A SPECIFIC SCHEDULE.  THE
SCHEDULE IS DESIGNED TO DIRECT THE SHIPMENT OF CANADIAN CERTIFIED SEED
POTATOES INTO THOSE STATES WHERE THERE IS A LEGITIMATE DEMAND FOR
CERTIFIED SEED POTATOES AND ONLY DURING A SHORT PERIOD IMMEDIATELY
PRIOR TO THE NORMAL SEEDING TIME.  A DRAFT OF THIS SCHEDULE IS NOW
BEING JOINTLY PREPARED BY CANADIAN AND UNITED STATES OFFICIALS. 

"(B)  EXPORT PERMITS WOULD ONLY BE GRANTED TO CANADIAN EXPORTERS WHO
COULD GIVE EVIDENCE THAT THEY HAD FIRM ORDERS FROM LEGITIMATE UNITED
STATES USERS OF CANADIAN SEED POTATOES.  CANADIAN EXPORTERS WOULD ALSO
BE REQUIRED TO HAVE INCLUDED IN ANY CONTRACT INTO WHICH THEY MIGHT
ENTER WITH A UNITED STATES SEED POTATO IMPORTER A CLAUSE IN WHICH THE
IMPORTER WOULD GIVE AN ASSURANCE THAT THE POTATOES WOULD NOT BE
DIVERTED OR RECONSIGNED FOR TABLE STOCK PURPOSES. 

"(C)  THE CANADIAN GOVERNMENT WOULD SURVEY THE SUPPLY OF CANADIAN
CERTIFIED SEED POTATOES BY CLASS AND CONSIDER THE POSSIBILITY OF GIVING
PRECEDENCE TO THE EXPORT OF FOUNDATION AND FOUNDATION A CLASSES OF
CERTIFIED SEED. 

"(D)  THE NAMES AND ADDRESSES OF THE CONSIGNEES ENTERED ON THE EXPORT
PERMIT WOULD BE COMPILED PERIODICALLY AND THIS INFORMATION WOULD BE
FORWARDED TO THE UNITED STATES GOVERNMENT. 

"IN INSTITUTING A SYSTEM WHICH HAS THE EFFECT OF RESTRICTING EXPORTS
OF CANADIAN POTATOES TO THE UNITED STATES, THE CANADIAN GOVERNMENT
RECOGNIZES A RESPONSIBILITY TO THE CANADIAN COMMERCIAL GROWER IN
CERTAIN SURPLUS POTATO AREAS AND IS PREPARED TO GUARANTEE A MINIMUM
RETURN ON GRADABLE POTATOES FOR WHICH THE GROWER CANNOT FIND A SALES
OUTLET.  ALTHOUGH THE DETAILS OF SUCH A PROGRAMME HAVE NOT BEEN
FINALIZED, IT IS ANTICIPATED THAT THE CANADIAN GOVERNMENT WILL
ANNOUNCE, AT APPROXIMATELY THE SAME TIME AS POTATOES ARE PLACED UNDER
EXPORT CONTROL, A FLOOR PRICE WHICH WILL BE EFFECTIVE APRIL 1ST, 1949
FOR CERTAIN CARLOT SHIPPING AREAS IN THE EAST.  TO IMPLEMENT THIS
PROGRAMME THE CANADIAN GOVERNMENT WOULD INSPECT THE POTATO HOLDINGS OF
COMMERCIAL GROWERS IN PRINCE EDWARD ISLAND, AND SEVERAL COUNTIES OF NEW
BRUNSWICK, ON OR AFTER APRIL 1ST AND WOULD UNDERTAKE TO PAY A FIXED
PRICE FOR EVERY HUNDRED POUNDS OF CANADA NO. 1 POTATOES FOUND IN THE
BINS.  IT IS NOT ANTICIPATED THAT ANY ACTUAL PAYMENT WOULD BE MADE AT
THAT TIME AND IT WOULD BE UNDERSTOOD THAT IF ANY OF THE POTATOES
EXAMINED WERE SUBSEQUENTLY SOLD OR USED FOR SEED PURPOSES THE OWNER
WOULD FORFEIT ANY CLAIM FOR ASSISTANCE ON SUCH POTATOES.  IN OTHER
WORDS, THE CANADIAN GOVERNMENT WOULD MAKE NO PAYMENT ON POTATOES WHICH
MOVE INTO EXPORT TRADE, OR WHICH ARE USED FOR SEED PURPOSES. 

"IT SHOULD BE NOTED THAT THE CANADIAN PROPOSALS TO INSTITUTE EXPORT
PERMIT CONTROL ON CANADIAN POTATOES AND TO INAUGURATE A PRICE SUPPORT
PROGRAMME ARE CONTINGENT UPON ASSURANCES FROM THE UNITED STATES
GOVERNMENT THAT: 

"A)  THE UNITED STATES GOVERNMENT WILL NOT HEREAFTER IMPOSE ANY
QUANTITATIVE LIMITATIONS OR FEES ON CANADIAN POTATOES OF THE 1948 CROP
EXPORTED TO THE UNITED STATES UNDER THE SYSTEM OF REGULATING THE
MOVEMENT OF POTATOES FROM CANADA TO THE UNITED STATES OUTLINED HEREIN. 

"B)  THE CANADIAN GOVERNMENT PROPOSAL, AS OUTLINED HEREIN, TO
GUARANTEE A FLOOR PRICE TO CERTAIN COMMERCIAL GROWERS IN THE MARITIME
PROVINCES WOULD NOT BE INTERPRETED BY UNITED STATES AUTHORITIES AS
EITHER A DIRECT OR INDIRECT SUBSIDY AND THAT IN CONSEQUENCE THERE WOULD
BE NO GROUNDS FOR THE IMPOSITION OF COUNTERVAILING DUTIES UNDER SECTION
303 OF THE UNITED STATES TARIFF ACT OF 1930.  (FN1) 

"IF THE UNITED STATES GOVERNMENT IN ITS REPLYING NOTE ACCEPTS THE
CANADIAN PROPOSALS AND GIVES TO THE CANADIAN GOVERNMENT THE ASSURANCES
REQUIRED, AS OUTLINED ABOVE, THIS NOTE AND THE REPLY THERETO WILL
CONSTITUTE AN AGREEMENT ON THIS SUBJECT. 

"ACCEPT, SIR, THE RENEWED ASSURANCES OF MY HIGHEST CONSIDERATION. 

             "HH WRONG 

"THE HONOURABLE GEORGE C. MARSHALL. 

 "SECRETARY OF STATE OF THE UNITED STATES,

                    "WASHINGTON, D.C.

                "THE ACTING SECRETARY OF STATE TO THE CANADIAN

                   AMBASSADOR

                                      "NOVEMBER 23, 1948 

"EXCELLENCY: 

"THE GOVERNMENT OF THE UNITED STATES APPRECIATES THE ASSURANCE OF THE
GOVERNMENT OF CANADA CONTAINED IN YOUR NOTE NO. 538 OF NOVEMBER 23,
1948, THAT THE GOVERNMENT OF CANADA IS PREPARED, CONTINGENT UPON THE
RECEIPT OF CERTAIN ASSURANCES FROM THE GOVERNMENT OF THE UNITED STATES,
TO ESTABLISH THE CONTROLS OUTLINED THEREIN OVER THE EXPORTATION OF
POTATOES FROM CANADA TO THE UNITED STATES. 

"IN VIEW OF THE ADVERSE EFFECT WHICH UNRESTRICTED IMPORTS OF CANADIAN
POTATOES WOULD HAVE ON THE POTATO PROGRAMS OF THE UNITED STATES AND THE
FACT THAT IT IS ANTICIPATED THAT THE CANADIAN PROPOSAL WILL
SUBSTANTIALLY REDUCE THE QUANTITY OF POTATOES WHICH WOULD OTHERWISE BE
IMPORTED INTO THE UNITED STATES, AND IN THE INTEREST OF INTERNATIONAL
TRADE BETWEEN THE UNITED STATES AND CANADA AND OTHER CONSIDERATIONS,
THE UNITED STATES GOVERNMENT ASSURES THE CANADIAN GOVERNMENT THAT IT
WILL NOT HEREAFTER IMPOSE ANY QUANTITATIVE LIMITATIONS OR FEES ON
CANADIAN POTATOES OF THE 1948 CROP IMPORTED INTO THE UNITED STATES
UNDER THE SYSTEM OF REGULATING THE MOVEMENT OF POTATOES TO THE UNITED
STATES OUTLINED IN THE CANADIAN PROPOSAL. 

"THE GOVERNMENT OF THE UNITED STATES ALSO WISHES TO INFORM THE
CANADIAN GOVERNMENT WITH RESPECT TO THAT GOVERNMENT'S PROPOSAL TO
GUARANTEE A FLOOR PRICE TO CERTAIN COMMERCIAL GROWERS IN THE MARITIME
PROVINCES, THAT IN THE OPINION OF THE TREASURY DEPARTMENT, THE
OPERATION OF SUCH A PROPOSAL AS OUTLINED BY THE CANADIAN GOVERNMENT
WOULD NOT BE CONSIDERED AS A PAYMENT OR BESTOWAL, DIRECTLY OR
INDIRECTLY, OF ANY BOUNTY OR GRANT UPON THE MANUFACTURE, PRODUCTION, OR
EXPORT OF THE POTATOES CONCERNED AND NO COUNTERVAILING DUTY WOULD,
THEREFORE, BE LEVIED, UNDER THE PROVISIONS OF SECTION 303, TARIFF ACT
OF 1930, AS A RESULT OF SUCH OPERATION OF THE PROPOSAL ON POTATOES
IMPORTED FROM CANADA. 

"THE UNITED STATES GOVERNMENT AGREES THAT YOUR NOTE UNDER REFERENCE,
TOGETHER WITH THIS REPLY, WILL CONSTITUTE AN AGREEMENT ON THIS
SUBJECT. 

"ACCEPT, EXCELLENCY, THE RENEWED ASSURANCES OF MY HIGHEST
CONSIDERATION. 

                                      "ROBERT A. LOVETT

                                                 "ACTING SECRETARY
OF STATE OF THE

                 UNITED STATES OF AMERICA 

"HIS EXCELLENCY:

 "HUME WRONG,

      "AMBASSADOR OF CANADA." 

TREATIES AND OTHER INTERNATIONAL ACTS SERIES 1896, DEPARTMENT OF
STATE, PUBLICATION 3474. 

FN1  46 STAT. 687. 
..END :











UNITED STATES V. SHUBERT 348 U.S. 222 


NO. 36.  ARGUED NOVEMBER 9-10, 1954 - DECIDED JANUARY 31, 1955 - 120 F.
SUPP. 15, REVERSED. 


IN A CIVIL ANTITRUST ACTION BROUGHT BY THE GOVERNMENT TO RESTRAIN
ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT, THE COMPLAINT
ALLEGED, INTER ALIA, THAT THE DEFENDANTS ARE ENGAGED IN THE BUSINESS OF
PRODUCING, BOOKING AND PRESENTING LEGITIMATE THEATRICAL ATTRACTIONS ON
A MULTISTATE BASIS; THAT THIS BUSINESS REQUIRES A CONSTANT, CONTINUOUS
STREAM OF INTERSTATE TRADE AND COMMERCE; AND THAT THE DEFENDANTS HAVE
RESTRAINED THIS TRADE AND COMMERCE AND HAVE MONOPOLIZED CERTAIN PHASES
OF IT.  HELD:  THE COMPLAINT STATES A CAUSE OF ACTION, AND THE
GOVERNMENT IS ENTITLED TO AN OPPORTUNITY TO PROVE ITS ALLEGATIONS.  PP.
223-231. 

(A)  AS DESCRIBED IN THE COMPLAINT, DEFENDANTS' BUSINESS OF
PRODUCING, BOOKING AND PRESENTING LEGITIMATE THEATRICAL ATTRACTIONS ON
A MULTISTATE BASIS CONSTITUTES "TRADE OR COMMERCE" THAT IS "AMONG THE
SEVERAL STATES" WITHIN THE MEANING OF THE SHERMAN ACT.  PP.  225-227. 

(B)  HART V. KEITH VAUDEVILLE EXCHANGE, 262 U.S. 271, FOLLOWED. 
FEDERAL BASEBALL CLUB V. NATIONAL LEAGUE, 259 U.S. 200, AND TOOLSON V.
NEW YORK YANKEES, 346 U.S. 356, DISTINGUISHED.  PP. 227-230. 

(C)  THE FEDERAL BASEBALL AND TOOLSON DECISIONS AFFORD NO BASIS FOR A
CONCLUSION THAT ALL BUSINESS BUILT AROUND THE PERFORMANCE OF LOCAL
EXHIBITIONS ARE EXEMPT FROM THE SHERMAN ACT.  PP. 227-230. 

UNITED STATES V. SHUBERT ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL ANTITRUST ACTION BROUGHT BY THE GOVERNMENT IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. 
NAMED AS DEFENDANTS ARE LEE SHUBERT, (FN1) JACOB J. SHUBERT, MARCUS
HEIMAN, AND THREE CORPORATIONS CONTROLLED BY THEM.  (FN2)  THE
DEFENDANTS ARE PRINCIPALLY ENGAGED IN THE BUSINESS OF PRODUCING
LEGITIMATE THEATRICAL ATTRACTIONS, (FN3) BOOKING LEGITIMATE ATTRACTIONS
IN THEATRES THROUGHOUT THE UNITED STATES, (FN4) AND OPERATING
APPROXIMATELY 40 THEATRES IN EIGHT STATES FOR THE PRESENTATION OF
LEGITIMATE ATTRACTIONS.  (FN5)  THE GOVERNMENT'S COMPLAINT CHARGES THAT
THE DEFENDANTS, IN THE COURSE OF THIS BUSINESS, HAVE VIOLATED SECS. 1
AND 2 OF THE SHERMAN ACT.  (FN6)  ON THE DEFENDANTS' MOTION, AFTER THIS
COURT'S DECISION IN TOOLSON V. NEW YORK YANKEES, 346 U.S. 356, THE
DISTRICT COURT DISMISSED THE GOVERNMENT'S COMPLAINT ON THE AUTHORITY OF
THE TOOLSON DECISION, AND FEDERAL BASEBALL CLUB OF BALTIMORE V.
NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUBS, 259 U.S. 200.  (FN7)
THE CASE IS HERE ON DIRECT APPEAL UNDER THE EXPEDITING ACT, 15 U.S.C.
SEC. 29. 

THE GOVERNMENT'S COMPLAINT, WHICH IS SUMMARIZED IN AN APPENDIX TO
THIS OPINION, DESCRIBES THE INTERSTATE PHASES OF THE DEFENDANTS'
THEATRICAL BUSINESS IN CONSIDERABLE DETAIL.  IT CONCLUDES THAT THE
BUSINESS OF PRODUCING, BOOKING, AND PRESENTING LEGITIMATE ATTRACTIONS
REQUIRES: 

"A CONSTANT, CONTINUOUS STREAM OF TRADE AND COMMERCE BETWEEN THE
STATES OF THE UNITED STATES, CONSISTING OF THE ASSEMBLAGE OF PERSONNEL
AND PROPERTY FOR REHEARSALS, THE TRANSPORTATION OF SAID PERSONNEL AND
PROPERTY TO VARIOUS CITIES THROUGHOUT THE UNITED STATES, THE MAKING AND
PERFORMING OF CONTRACTS UNDER WHICH ATTRACTIONS ARE ROUTED AND
PRESENTED IN VARIOUS STATES OF THE UNITED STATES, AND THE TRANSMISSION
OF APPLICATIONS, LETTERS, MEMORANDA, COMMUNICATIONS, COMMITMENTS,
CONTRACTS, MONEY, CHECKS, DRAFTS AND OTHER MEDIA OF EXCHANGE ACROSS
STATE LINES." 

THE COMPLAINT ALLEGES THAT THE DEFENDANTS HAVE RESTRAINED THIS TRADE
AND COMMERCE, AND HAVE MONOPOLIZED CERTAIN PHASES OF IT, THROUGH A
CONSPIRACY (A) TO COMPEL OTHER PRODUCERS TO BOOK THEIR LEGITIMATE
ATTRACTIONS EXCLUSIVELY THROUGH THE DEFENDANTS, (B) TO EXCLUDE OTHERS
FROM BOOKING LEGITIMATE ATTRACTIONS, (C) TO PREVENT COMPETITION IN THE
PRESENTATION OF LEGITIMATE ATTRACTIONS, (D) TO DISCRIMINATE IN FAVOR OF
THEIR OWN PRODUCTIONS WITH RESPECT TO BOOKING AND PRESENTATION, AND (E)
TO COMBINE THEIR POWER IN BOOKING AND PRESENTATION IN ORDER TO MAINTAIN
AND STRENGTHEN THEIR DOMINATION IN EACH OF THESE FIELDS.  THE MAIN
RELIEF SOUGHT BY THE GOVERNMENT IS THE DIVORCEMENT OF THE BOOKING AND
PRESENTATION BRANCHES OF THE BUSINESS. 

THE ALLEGATIONS OF THE COMPLAINT, ON A MOTION TO DISMISS, MUST OF
COURSE BE TAKEN AS TRUE.  AND THE DEFENDANTS DO NOT DENY THAT THE
ALLEGATIONS STATE A CAUSE OF ACTION IF THEIR BUSINESS IS SUBJECT TO THE
SHERMAN ACT.  THE QUESTION PRESENTED IS THUS A NARROW ONE:  WHETHER THE
BUSINESS OF PRODUCING, BOOKING, AND PRESENTING LEGITIMATE ATTRACTIONS
ON A MULTISTATE BASIS CONSTITUTES "TRADE OR COMMERCE" THAT IS "AMONG
THE SEVERAL STATES" WITHIN THE MEANING OF THOSE TERMS IN THE SHERMAN
ACT. 

BOTH TERMS HAVE BEEN INTERPRETED BROADLY IN THE DECISIONS OF THIS
COURT.  "TRADE OR COMMERCE" HAS BEEN HELD TO INCLUDE THE PRODUCTION,
DISTRIBUTION, AND EXHIBITION OF MOTION PICTURES (UNITED STATES V.
PARAMOUNT PICTURES, 334 U.S. 131; SCHINE THEATRES V. UNITED STATES, 334
U.S. 110; UNITED STATES V. GRIFFITH, 334 U.S. 100; UNITED STATES V.
CRESCENT AMUSEMENT CO., 323 U.S. 173; INTERSTATE CIRCUIT V. UNITED
STATES, 306 U.S. 208; BINDERUP V. PATHE EXCHANGE, 263 U.S. 291); REAL
ESTATE BROKERAGE (UNITED STATES V. NATIONAL ASSOCIATION OF REAL ESTATE
BOARDS, 339 U.S. 485); THE GATHERING AND DISTRIBUTION OF NEWS
(ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1); MEDICAL SERVICES TO
MEMBERS OF A HEALTH COOPERATIVE (AMERICAN MEDICAL ASSOCIATION V. UNITED
STATES, 317 U.S. 519); AND INSURANCE UNDERWRITING (UNITED STATES V.
SOUTH-EASTERN UNDERWRITERS ASSOCIATION, 322 U.S. 533).  A SIMILARLY
LIBERAL CONSTRUCTION HAS BEEN GIVEN THE REQUIREMENT OF SECS. 1 AND 2
THAT THE "TRADE OR COMMERCE" BE "AMONG THE SEVERAL STATES."  THUS, IN
THE SOUTH-EASTERN UNDERWRITERS CASE, THE REQUIREMENT WAS SATISFIED BY A
"CONTINUOUS AND INDIVISIBLE STREAM OF INTERCOURSE AMONG THE STATES"
INVOLVING THE TRANSMISSION OF LARGE SUMS OF MONEY AND COMMUNICATIONS BY
MAIL, TELEPHONE, AND TELEGRAPH.  CF. ELECTRIC BOND & SHARE CO. V.
SECURITIES AND EXCHANGE COMMISSION, 303 U.S. 419, 432-433; NORTH
AMERICAN CO. V. SECURITIES AND EXCHANGE COMMISSION, 327 U.S. 686, 694
695.  IN THE ASSOCIATED PRESS CASE, THE REQUIREMENT WAS SATISFIED BY
THE INTERSTATE DISSEMINATION OF NEWS.  SEE ALSO LORAIN JOURNAL CO. V.
UNITED STATES, 342 U.S. 143.  AND IN THE MOTION PICTURE CASES, THE
REQUIREMENT WAS SATISFIED BY THE INTERSTATE TRANSPORTATION OF FILMS,
BINDERUP V. PATHE EXCHANGE, SUPRA, EVEN THOUGH THE ACTUAL "SHOWING OF
MOTION PICTURES IS OF COURSE A LOCAL AFFAIR."  UNITED STATES V.
CRESCENT AMUSEMENT CO., SUPRA, AT 183.  SEE ALSO HART V. B.F. KEITH
VAUDEVILLE EXCHANGE, 262 U.S. 271.  (FN8)

THESE DECISIONS, APART FROM FEDERAL BASEBALL AND TOOLSON, MAKE IT
CLEAR BEYOND QUESTION THAT THE ALLEGATIONS OF THE GOVERNMENT'S
COMPLAINT BRING THE DEFENDANTS WITHIN THE SCOPE OF THE SHERMAN ACT,
EVEN THOUGH THE ACTUAL PERFORMANCE OF A LEGITIMATE STAGE ATTRACTION "IS
OF COURSE A LOCAL AFFAIR."  THE DEFENDANTS CONTEND, HOWEVER, THAT
FEDERAL BASEBALL AND TOOLSON HAVE ALREADY ESTABLISHED THEIR IMMUNITY
UNDER THE ACT.  WHILE CONCEDING, AS THEY MUST, THAT THE MOTION PICTURE
INDUSTRY IS SUBJECT TO THE ANTITRUST LAWS, THEY INSIST THAT ALL OTHER
BUSINESSES BUILT AROUND THE PERFORMANCE OF LOCAL EXHIBITIONS ARE
EXEMPT.  (FN9)  WE BELIEVE THAT FEDERAL BASEBALL AND TOOLSON AFFORD NO
BASIS FOR SUCH A CONCLUSION. 

IN FEDERAL BASEBALL, THE COURT, SPEAKING THROUGH MR. JUSTICE HOLMES,
WAS DEALING WITH THE BUSINESS OF BASEBALL AND NOTHING ELSE.  THE COURT
CONSIDERED THE NATURE OF THE GAME, ITS HISTORY AND LEAGUE ORGANIZATION,
THE NECESSITY OF ARRANGING GAMES BETWEEN CITIES IN DIFFERENT STATES,
AND THE RESULTING TRAVEL ACROSS STATE LINES.  THE TRAVEL, THE COURT
CONCLUDED, WAS "A MERE INCIDENT, NOT THE ESSENTIAL THING."  ON THAT
BASIS, THE COURT HELD THAT "THE RESTRICTIONS BY CONTRACT THAT PREVENTED
THE PLAINTIFF FROM GETTING PLAYERS TO BREAK THEIR BARGAINS AND THE
OTHER CONDUCT CHARGED AGAINST THE DEFENDANTS WERE NOT AN INTERFERENCE
WITH COMMERCE AMONG THE STATES."  259 U.S., AT 209. 

AT THE VERY NEXT TERM, IN HART V. B.F. KEITH VAUDEVILLE EXCHANGE, 262
U.S. 271, THE COURT WAS DIRECTLY CONCERNED WITH THE EFFECT OF THE
FEDERAL BASEBALL DECISION ON THE STATUS OF THE THEATRICAL BUSINESS
UNDER THE SHERMAN ACT.  THE COMPLAINT IN THE HART CASE, MUCH LIKE THE
COMPLAINT HERE UNDER REVIEW, ALLEGED A CONSPIRACY TO CONTROL THE
BOOKING AND PRESENTATION OF VAUDEVILLE ACTS IN THEATRES THROUGHOUT THE
COUNTRY.  THE DISTRICT COURT, LIKE THE DISTRICT COURT IN THE INSTANT
CASE, DISMISSED THE COMPLAINT ON THE AUTHORITY OF FEDERAL BASEBALL. 
THIS COURT, AGAIN SPEAKING THROUGH MR. JUSTICE HOLMES, UNANIMOUSLY
REVERSED.  (FN10)  THE COURT TOOK NOTE OF THE PLAINTIFF'S ARGUMENT
"THAT IN THE TRANSPORTATION OF VAUDEVILLE ACTS THE APPARATUS SOMETIMES
IS MORE IMPORTANT THAN THE PERFORMERS" AND CONCLUDED THAT THE
COMPLAINT, AT LEAST TO THAT EXTENT, SUFFICIENTLY ALLEGED A VIOLATION OF
THE ACT TO PERMIT THE CASE TO GO TO TRIAL.  THE COURT DISTINGUISHED
FEDERAL BASEBALL ON THE GROUND THAT "WHAT IN GENERAL IS INCIDENTAL, IN
SOME INSTANCES MAY RISE TO A MAGNITUDE THAT REQUIRES IT TO BE
CONSIDERED INDEPENDENTLY."  THE COURT THUS ESTABLISHED, CONTRARY TO THE
DEFENDANTS' ARGUMENT HERE, THAT FEDERAL BASEBALL DID NOT AUTOMATICALLY
IMMUNIZE THE THEATRICAL BUSINESS FROM THE ANTITRUST LAWS. 

IN TOOLSON, WHERE THE ISSUE WAS THE SAME AS IN FEDERAL BASEBALL, THE
COURT WAS CONFRONTED WITH A UNIQUE CONBINATION OF CIRCUMSTANCES.  FOR
OVER 30 YEARS THERE HAD STOOD A DECISION OF THIS COURT SPECIFICALLY
FIXING THE STATUS OF THE BASEBALL BUSINESS UNDER THE ANTITRUST LAWS AND
MORE PARTICULARLY THE VALIDITY OF THE SO-CALLED "RESERVE CLAUSE." 
DURING THIS PERIOD, IN RELIANCE ON THE FEDERAL BASEBALL PRECEDENT, THE
BASEBALL BUSINESS HAD GROWN AND DEVELOPED.  COMPARE HELVERING V.
HALLOCK, 309 U.S. 106, 110.  AND CONGRESS, ALTHOUGH IT HAD ACTIVELY
CONSIDERED THE RULING, HAD NOT SEEN FIT TO REJECT IT BY AMENDATORY
LEGISLATION.  AGAINST THIS BACKGROUND, THE COURT IN TOOLSON WAS ASKED
TO OVERRULE FEDERAL BASEBALL ON THE GROUND THAT IT WAS OUT OF STEP WITH
SUBSEQUENT DECISIONS REFLECTING PRESENT-DAY CONCEPTS OF INTERSTATE
COMMERCE.  THE COURT, IN VIEW OF THE CIRCUMSTANCES OF THE CASE,
DECLINED TO DO SO.  BUT NEITHER DID THE COURT NECESSARILY REAFFIRM ALL
THAT WAS SAID IN FEDERAL BASEBALL.  INSTEAD, "WITHOUT RE-EXAMINATION OF
THE UNDERLYING ISSUES," THE COURT ADHERED TO FEDERAL BASEBALL "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."  346 U.S., AT 357.  IN SHORT, TOOLSON WAS A NARROW APPLICATION
OF THE RULE OF STARE DECISIS. 

THE DEFENDANTS WOULD HAVE US CONVERT THIS NARROW APPLICATION OF THE
RULE INTO A SWEEPING GRANT OF IMMUNITY TO EVERY BUSINESS BASED ON THE
LIVE PRESENTATION OF LOCAL EXHIBITIONS, REGARDLESS OF HOW EXTENSIVE ITS
INTERSTATE PHASES MAY BE.  WE CANNOT DO SO.  IF THE TOOLSON HOLDING IS
TO BE EXPANDED - OR CONTRACTED - THE APPROPRIATE REMEDY LIES WITH
CONGRESS.  SEE UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSOCIATION,
322 U.S. 533, 561.  MOREOVER, NONE OF THE CONSIDERATIONS WHICH LED TO
THE DECISION IN TOOLSON ARE PRESENT HERE.  THIS COURT HAS NEVER HELD
THAT THE THEATRICAL BUSINESS IS NOT SUBJECT TO THE SHERMAN ACT.  ON THE
CONTRARY, LESS THAN A YEAR AFTER THE FEDERAL BASEBALL DECISION, THE
COURT IN THE HART CASE PUT THE THEATRICAL BUSINESS ON NOTICE THAT
FEDERAL BASEBALL COULD NOT BE RELIED UPON AS A BASIS FOR EXEMPTION FROM
THE ANTITRUST LAWS.  THE RULE OF STARE DECISIS UNDOUBTEDLY EMBODIES A
POLICY OF BASIC IMPORTANCE, BUT THE RULE CANNOT HELP THE DEFENDANTS
HERE.  IF IT IS TO BE APPLIED, HART AND THE MOTION PICTURE CASES - NOT
FEDERAL BASEBALL AND TOOLSON - ARE THE CONTROLLING DECISIONS. 

WE ARE NOT YET CALLED UPON TO DETERMINE WHETHER THE DEFENDANTS HAVE
IN FACT VIOLATED THE SHERMAN ACT OR IF THEY HAVE WHAT RELIEF WOULD BE
APPROPRIATE.  WE HOLD ONLY THAT THE ALLEGATIONS OF THE COMPLAINT STATE
A CAUSE OF ACTION AND THAT THE GOVERNMENT IS ENTITLED TO AN OPPORTUNITY
TO PROVE THOSE ALLEGATIONS.  THE JUDGMENT OF THE COURT BELOW IS
REVERSED. 

FN1  LEE SHUBERT DIED PRIOR TO ENTRY OF THE DISTRICT COURT'S
JUDGMENT.  HIS EXECUTORS HAVE NOT BEEN SUBSTITUTED AS PARTIES. 

FN2  THE CORPORATIONS ARE THE UNITED BOOKING OFFICE, INC. ("UBO"),
SELECT THEATRES CORPORATION ("SELECT"), AND L.A.B. AMUSEMENT
CORPORATION ("L.A.B.").  SINCE THE FILING OF THE COMPLAINT, L.A.B. HAS
BEEN DISSOLVED AND ITS ASSETS VESTED IN MARCUS HEIMAN PERSONALLY. 

FN3  THE COMPLAINT DEFINES "LEGITIMATE ATTRACTIONS" AS "STAGE
ATTRACTIONS PERFORMED IN PERSON BY PROFESSIONAL ACTORS" INCLUDING
"PLAYS, MUSICALS, AND OPERETTAS" BUT NOT ORDINARILY INCLUDING "STOCK
COMPANY ATTRACTIONS, VAUDEVILLE, BURLESQUE, BANDS, INDIVIDUAL DANCERS,
DANCE GROUPS, CONCERTS, AND VOCAL OR INSTRUMENTAL PRESENTATIONS."  THE
COMPLAINT ALLEGES THAT A PLAY COSTS APPROXIMATELY $60,000 TO $100,000
TO PRODUCE, WHEREAS A MUSICAL GENERALLY REQUIRES FROM $200,000 TO
$300,000.  AS MUCH AS ONE-THIRD OF THE COST, ACCORDING TO THE
COMPLAINT, MAY BE ATTRIBUTABLE TO EXPENDITURES FOR SCENERY, PROPS, AND
RELATED ITEMS AND SERVICES. 

FN4  "BOOKING" IS DEFINED IN THE COMPLAINT AS "THE ARRANGEMENTS,
GENERALLY MADE THROUGH A BOOKING OFFICE, BETWEEN PRODUCERS AND
OPERATORS FOR THE ROUTING AND PRESENTATION OF LEGITIMATE ATTRACTIONS
AND THE FIXING OF PLAYING DATES."  THE COMPLAINT ALLEGES THAT UBO,
APART FROM SELECT AND A SUBSIDIARY THEREOF, IS THE ONLY CONCERN IN THE
COUNTRY THAT BOOKS LEGITIMATE ATTRACTIONS THROUGHOUT THE UNITED
STATES. 

FN5  THE COMPLAINT DEFINES "PRESENTATION" AS "THE OPERATION OF A
THEATRE OR THEATRES AND THE EXHIBITION OF LEGITIMATE ATTRACTIONS
THEREIN."  THE DEFENDANTS, ACCORDING TO THE COMPLAINT, OPERATE OR
CONTROL ALL THE THEATRES IN VIRTUALLY ALL KEY "TRY-OUT" CITIES
(INCLUDING BOSTON, PHILADELPHIA, AND BALTIMORE), ALL THE THEATRES IN
SEVERAL IMPORTANT "ROAD-SHOW" CITIES (CHICAGO AND DETROIT), AND
APPROXIMATELY HALF OF THE THEATRES IN NEW YORK CITY. 

FN6  15 U.S.C. SECS. 1 AND 2.  THESE SECTIONS PROVIDE: 

"SEC. 1.  ...  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  ...
.  EVERY PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN ANY
COMBINATION OR CONSPIRACY DECLARED BY SECTIONS 1-7 OF THIS TITLE TO BE
ILLEGAL SHALL BE DEEMED GUILTY OF A MISDEMEANOR  ...  .   "SEC.  2. 
...  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  ...  ." 

RESTRAIN VIOLATIONS OF SECTIONS 1-7 OF THIS TITLE" IN EQUITY
PROCEEDINGS INSTITUTED UNDER THE DIRECTION OF THE ATTORNEY GENERAL. 

FN7  THE COURT ISSUED THE FOLLOWING ORDER: 

"IN PRINCIPLE, I CAN SEE NO VALID DISTINCTION BETWEEN THE FACTS OF
THIS CASE AND THOSE WHICH WERE BEFORE THE SUPREME COURT IN THE CASES OF
FEDERAL BASEBALL CLUB OF BALTIMORE V. NATIONAL LEAGUE OF PROFESSIONAL
BASEBALL CLUBS, 259 U.S. 200, 42 S. CT. 465, 66 L. ED. 898, AND TOOLSON
V. NEW YORK YANKEES, 346 U.S. 356, 74 S. CT. 78. 

"UPON THE AUTHORITY OF THESE ADJUDICATIONS THE COMPLAINT IN THE ABOVE
ENTITLED ACTION WILL BE DISMISSED."  120 F. SUPP. 15, 16. 

FN8  MOREOVER, ONCE INTERSTATE COMMERCE IS ESTABLISHED, THE SHERMAN
ACT MAY BE APPLIED EVEN TO "LOCAL" RESTRAINTS ON THAT COMMERCE.  E.G.,
MANDEVILLE ISLAND FARMS V. AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219;
UNITED STATES V. WOMEN'S SPORTSWEAR MFRS.  ASSN., 336 U.S. 460; UNITED
STATES V. EMPLOYING PLASTERERS ASSOCIATION, 347 U.S. 186.  CF. MOORE V.
MEAD'S FINE BREAD CO., 348 U.S. 115, 118-119. 

FN9  THE DEFENDANTS SEEK TO DISTINGUISH THE MOTION PICTURE CASES ON
THE GROUND THAT THE PRODUCT OF THE MOTION PICTURE INDUSTRY IS "AN
ARTICLE OF TRADE  ...  AN INANIMATE THING - A REEL OF PHOTOGRAPHIC FILM
IN A METAL BOX - WHICH MOVES INTO INTERSTATE COMMERCE LIKE ANY OTHER
MANUFACTURED PRODUCT"; ON THE OTHER HAND, ACCORDING TO THIS ARGUMENT, A
LEGITIMATE THEATRICAL ATTRACTION IS "INTANGIBLE AND EVANESCENT, UNIQUE
AND INDIVIDUAL  ...  AN EXPERIENCE OF LIVING PEOPLE."  COMPARE UNITED
STATES V. SOUTH-EASTERN UNDERWRITERS ASSOCIATION, 322 U.S. 533, 546:  "
...  CONGRESS CAN REGULATE TRAFFIC THOUGH IT CONSIST OF INTANGIBLES." 
AND SEE HART V. B.F. KEITH VAUDEVILLE EXCHANGE, 262 U.S. 271. 

THAT OTHER SEGMENTS OF THE ENTERTAINMENT BUSINESS, BESIDES THE MOTION
PICTURE INDUSTRY, MAY CONSTITUTE INTERSTATE COMMERCE IS WELL
ESTABLISHED.  SEE, E.G., FEDERAL RADIO COMMISSION V. NELSON BROS. CO.,
289 U.S. 266, 279 (RADIO). 

FN10  ON REMAND, THE TRIAL COURT UNDERSTOOD THE HOLMES OPINION AS
AUTHORIZING A LATER DISMISSAL IF THE PLAINTIFF'S EVIDENCE FAILED TO
ESTABLISH THAT THE TRANSPORTATION WAS MORE THAN "INCIDENTAL."  ON THAT
BASIS, THE TRIAL COURT DISMISSED THE ACTION AND THE COURT OF APPEALS
AFFIRMED.  12 F.2D 341.  THIS COURT DENIED CERTIORARI.  273 U.S. 703. 
BUT, AS THE DEFENDANTS ADMIT, A DENIAL OF CERTIORARI DOES NOT
CONSTITUTE AN EXPRESSION ON THE MERITS.  BROWN V. ALLEN, 344 U.S. 443,
489-497.  THAT RULE IS PARTICULARLY APPROPRIATE WHERE THE DECISION
SOUGHT TO BE REVIEWED IS ESSENTIALLY A FACTUAL DETERMINATION.  COMPARE
GRAVER TANK & MFG. CO. V. LINDE CO., 336 U.S. 271, 274-275. 

FOR LOWER COURT DECISIONS HOLDING THE THEATRICAL BUSINESS TO BE
SUBJECT TO THE SHERMAN ACT, SEE JUDGE LEARNED HAND IN MARIENELLI V.
UNITED BOOKING OFFICES OF AMERICA, 227 F. 165 (D.C.S.D.N.Y.), AND JUDGE
CHARLES CLARK IN RING V. SPINA, 148 F.2D 647 (C.A.2D CIR.), MODIFIED IN
186 F.2D 637 (C.A.2D CIR.), CERT. DENIED, 341 U.S. 935.  BUT CF. SAN
CARLO OPERA CO. V. CONLEY, 72 F. SUPP. 825 (D.C.S.D.N.Y.), AFFIRMED,
163 F.2D 310 (C.A.2D CIR.), INVOLVING A PERSONAL EMPLOYMENT CONTRACT
UNDER THE FEDERAL ARBITRATION ACT. 

MR. JUSTICE BURTON, RETAINING THE VIEWS EXPRESSED IN HIS DISSENT IN
THE TOOLSON CASE, 346 U.S. 356, 357, JOINS THE OPINION AND JUDGMENT OF
THE COURT IN THIS CASE.  MR. JUSTICE REED JOINS IN THIS CONCURRENCE. 

MR. JUSTICE MINTON AGREES WITH THE JUDGMENT IN THIS CASE BECAUSE, AS
IT COMES HERE ON THE PLEADINGS, IT IS CONTROLLED BY THE HART CASE. 
WHETHER THE GOVERNMENT CAN PROVE ITS CASE NOW TO THE SATISFACTION OF
PRESENT COURTS, WHICH THE PLAINTIFF COULD NOT DO IN THE HART CASE, 12
F.2D 341, REMAINS TO BE SEEN. 

                        APPENDIX TO OPINION OF THE COURT. 

THE DEFENDANTS STATE AT PAGE 3 OF THEIR BRIEF:  "THE ALLEGATIONS OF
THE COMPLAINT ARE SUMMARIZED ADEQUATELY AT PAGES 5 TO 11 OF THE
GOVERNMENT'S BRIEF."  THAT PORTION OF THE GOVERNMENT'S BRIEF IS SET OUT
BELOW: 

PRODUCTION OF A LEGITIMATE THEATRICAL ATTRACTION INVOLVES (1)
ASSEMBLING OF ITS COMPONENT ELEMENTS, INCLUDING A SCRIPT, FINANCIAL
BACKING, ACTORS, STAGE HANDS, DESIGNERS, ADVERTISING AGENTS, SCENERY,
COSTUMES, LIGHTING, AND MUSIC; (2) REHEARSALS TO WELD THE PARTS INTO AN
ATTRACTION SUITABLE FOR PRESENTATION; (3) ARRANGING FOR THE BOOKING AND
PRESENTATION OF THE ATTRACTION IN A TRY-OUT TOWN OR TOWNS, IN NEW YORK
CITY, AND IN ROAD-SHOW TOWNS; AND (4) TRANSPORTING THE ENTIRE CAST AND
SCENERY TO TRY-OUT TOWNS THROUGHOUT THE UNITED STATES TO FULFILL THESE
BOOKINGS AND PRESENTATION ARRANGEMENTS (PAR. 24, R. 4).  AT THE PRESENT
TIME THE COST OF PRODUCING A PLAY RUNS FROM $60,000 TO $100,000, AND OF
A MUSICAL FROM $200,000 TO $300,000 (PAR. 25, R. 4).  PERSONS OTHER
THAN THE PRODUCER USUALLY SUPPLY THE NECESSARY FINANCING (IBID.). 
FREQUENTLY THE PRODUCTION IS INCORPORATED AND SHARES OF STOCK ARE SOLD
TO INVESTORS, OR THE PRODUCER ORGANIZES A LIMITED PARTNERSHIP (IBID.). 
ALL THE APPELLEES INVEST IN LEGITIMATE ATTRACTIONS (PARS. 3-7, R. 1
3). 

AFTER THE PRODUCTION HAS BEEN ASSEMBLED AND REHEARSALS HAVE BEEN
COMPLETED, THE ATTRACTION IS PRESENTED IN ONE OR MORE "TRY-OUT" TOWNS
FOR THE PURPOSE OF JUDGING AUDIENCE REACTION AND CORRECTING OBSERVED
DEFICIENCIES (PARS. 20, 26, R. 4, 5).  AUDIENCE REACTION IN TRY-OUT
TOWNS IS IMPORTANT IN GUAGING SUBSEQUENT FINANCIAL SUCCESS IN NEW YORK
CITY AND ON THE ROAD (PAR. 26, R. 5).  THE ATTRACTION IS THEN PRESENTED
IN NEW YORK CITY (PAR. 27, R. 5).  IF THE RUN THERE IS SUCCESSFUL, THE
ATTRACTION IS SENT ON TOUR TO "ROAD-SHOW" TOWNS THROUGHOUT THE UNITED
STATES (IBID.).  THIS ROAD-SHOW TOUR IS AN "INTEGRAL PART OF THE
EXPLOITATION OF THE ATTRACTION" AND IS THE SOURCE OF A "SUBSTANTIAL
PART" OF ITS PROFITS (IBID.). 

WITH THE EXCEPTION OF A FEW CITIES, A LEGITIMATE ATTRACTION
ORDINARILY CANNOT PROFITABLY PLAY IN A ROAD-SHOW TOWN FOR MORE THAN A
LIMITED PERIOD OF TIME, SELDOM EXCEEDING TWO WEEKS.  THE PRODUCER OF A
PLAY MUST THEREFORE OBTAIN PLAYING DATES IN A NUMBER OF SUITABLE ROAD
SHOW TOWNS, ARRANGED SO AS TO MINIMIZE LAY-OFFS AND TRAVEL BETWEEN
ENGAGEMENTS.  SUCCESSFUL OPERATION OF A THEATRE IN A ROAD-SHOW TOWN
REQUIRES SCHEDULING LEGITIMATE ATTRACTIONS SO AS TO KEEP THE THEATRE AS
CONTINUOUSLY OCCUPIED AS POSSIBLE DURING THE THEATRICAL SEASON. 
PLAYING DATES OF A ROAD-SHOW TOWN MUST THEREFORE BE ARRANGED SO AS TO
MEET THE NEEDS OF BOTH THE PRODUCER AND THE THEATRE OPERATOR.  (PAR.
29, R. 5.) 

UBO ACTS AS MIDDLEMAN BETWEEN PRODUCERS AND OPERATORS OF THEATRES IN
TRY-OUT AND ROAD-SHOW TOWNS, BUT IS REGARDED AS THE AGENT OF THE
THEATRE OPERATORS AND USUALLY RECEIVES, AS COMPENSATION FOR ITS
SERVICES, FIVE PER CENT OF THE OPERATOR'S SHARE OF THE THEATRE'S GROSS
RECEIPTS (PAR. 28, R. 5).  EACH YEAR UBO ENTERS INTO OR RENEWS
AGREEMENTS WITH THEATRE OPERATORS TO ACT AS THEIR BOOKING AGENT (PAR.
30, R. 5).  AFTER NEGOTIATION WITH THE PRODUCER OF AN ATTRACTION, UBO
TENTATIVELY SCHEDULES IT AT VARIOUS THEATRES THROUGHOUT THE UNITED
STATES, AND CONTRACTS COVERING PRESENTATION AT THESE THEATRES ARE
SUBSEQUENTLY EXECUTED (ID., R. 5-6).  THE BOOKING OF LEGITIMATE
ATTRACTIONS INVOLVES THE CROSS-COUNTRY ROUTING OF ATTRACTIONS IN A
CONSTANT STREAM TO AND FROM THEATRES IN VARIOUS CITIES THROUGHOUT THE
UNITED STATES (PAR. 28, R. 5). 

THE INDIVIDUAL APPELLEES CONTROL THE BOOKING OF LEGITIMATE
ATTRACTIONS IN TRY-OUT AND ROAD-SHOW TOWNS IN THE UNITED STATES (PAR.
37, R. 7).  APART FROM SELECT AND A SUBSIDIARY THEREOF, UBO IS THE ONLY
CONCERN IN THE COUNTRY WHICH BOOKS LEGITIMATE ATTRACTIONS THROUGHOUT
THE UNITED STATES (PAR. 5, R. 2).  FROM 1932 TO 1946, UBO FOLLOWED A
POLICY OF ENTERING INTO FRANCHISE AGREEMENTS WITH THEATRE OPERATORS
MAKING UBO THE EXCLUSIVE BOOKING AGENT FOR THEIR THEATRES (PAR. 40, R.
8-9).  ABOUT 1946, UBO DISCONTINUED FORMAL FRANCHISE AGREEMENTS AND
ADOPTED IN LIEU THEREOF A SYSTEM OF LISTINGS WHICH, AS TACITLY
UNDERSTOOD BY THE PARTIES, CONTINUED THE PREVIOUS CONTRACT ARRANGEMENTS
(ID., R. 9). 

THE APPELLEES OPERATE OR PARTICIPATE IN THE OPERATION OF
APPROXIMATELY FORTY THEATRES IN EIGHT STATES (PAR. 42, R. 9).  THEY
OPERATE OR CONTROL ALL THE THEATRES IN "VIRTUALLY ALL" KEY TRY-OUT
TOWNS, AND IN SEVERAL IMPORTANT ROAD-SHOW TOWNS (PAR. 41, R. 9).*
APPROXIMATELY FIFTY PER CENT OF ALL THE THEATRES IN NEW YORK CITY ARE
OWNED OR OPERATED BY THE SHUBERT APPELLEES (PARS. 15, 41, R. 3, 9). 

*THE APPELLEES CONTROL OR OPERATE THE ONLY THEATRE IN BALTIMORE, THE
SIX THEATRES IN BOSTON, SEVEN OF THE NINE THEATRES IN CHICAGO, THE ONLY
THEATRE IN CINCINNATI, THE ONLY THEATRE IN LOS ANGELES, AND THE FOUR
THEATRES IN PHILADELPHIA (PAR. 42, R. 9-10).  THEY HAVE AN INTEREST IN
TWO OF THE THREE THEATRES IN DETROIT (PAR. 42 E, R. 10).  THE ONLY
THEATRE IN NEW HAVEN IS OPERATED UNDER A FIVE-YEAR AGREEMENT WITH A
SUBSIDIARY OF SELECT, WHICH PROVIDES THAT THE OPERATOR WILL ACCEPT ONLY
ATTRACTIONS BOOKED THROUGH THIS SUBSIDIARY (PAR. 43, R. 11).  UBO HAS
EXCLUSIVE BOOKING RIGHTS FOR THE ONLY THEATRE IN TOLEDO, OHIO (PAR. 45,
R. 11). 

THE "KEY" TRY-OUT TOWNS ARE BOSTON, PHILADELPHIA, BALTIMORE, AND NEW
HAVEN (PAR. 26, R. 4).  (FOOTNOTE IN ORIGINAL.) 

IN PRODUCING, BOOKING, AND PRESENTING LEGITIMATE ATTRACTIONS, THERE
IS A CONSTANT, CONTINUOUS STREAM OF TRADE AND COMMERCE BETWEEN THE
VARIOUS STATES, CONSISTING OF ASSEMBLAGE OF PERSONNEL AND PROPERTY FOR
REHEARSALS, TRANSPORTATION OF SUCH PERSONNEL AND PROPERTY TO VARIOUS
CITIES, MAKING AND PERFORMING CONTRACTS UNDER WHICH ATTRACTIONS ARE
ROUTED AND PRESENTED IN VARIOUS STATES, AND TRANSMISSION OF
APPLICATIONS, LETTERS, MEMORANDA, COMMUNICATIONS, CONTRACTS, MONEY,
CHECKS, DRAFTS, AND OTHER MEDIA OF EXCHANGE ACROSS STATE LINES (PAR.
49, R. 12). 

THE SUBSTANTIAL ELEMENTS OF APPELLEES' CONSPIRACY TO RESTRAIN AND
MONOPOLIZE, ATTEMPTED MONOPOLIZATION, AND MONOPOLIZATION HAVE BEEN THAT
THE APPELLEES, BY CONTRACT OF ACTION: (A) COMPEL PRODUCERS TO BOOK
THEIR LEGITIMATE ATTRACTIONS EXCLUSIVELY THROUGH APPELLEES; (B) EXCLUDE
OTHERS FROM BOOKING LEGITIMATE ATTRACTIONS; (C) PREVENT COMPETITION IN
PRESENTATION OF THESE ATTRACTIONS; (D) DISCRIMINATE IN FAVOR OF THEIR
OWN PRODUCTIONS WITH RESPECT TO BOOKING AND PRESENTATION; AND (E)
COMBINE THEIR POWER IN BOOKING AND PRESENTATION IN ORDER TO MAINTAIN
AND STRENGTHEN THEIR DOMINATION IN EACH OF THESE FIELDS (PAR. 51, R.
13). 

THE MEANS WHICH THE APPELLEES HAVE USED IN CARRYING OUT THE FOREGOING
ACTS HAVE INCLUDED THE FOLLOWING: 

(1)  CONDITIONING THEIR INVESTMENTS IN LEGITIMATE ATTRACTIONS
PRODUCED BY OTHERS, AND CONDITIONING THE BOOKING OF LEGITIMATE
ATTRACTIONS IN TRY-OUT TOWNS AND IN NEW YORK CITY, UPON AGREEMENT BY
THE PRODUCERS TO BOOK THESE ATTRACTIONS EXCLUSIVELY THROUGH APPELLEES
(PARS. 52(A), (D), (E), R. 13). 

(2)  FORCING PRODUCERS TO BOOK THEIR LEGITIMATE ATTRACTIONS FOR AN
ENTIRE THEATRICAL SEASON EXCLUSIVELY THROUGH APPELLEES (PAR. 52(C), R.
13). 

(3)  COERCING PRODUCERS WHO HAD BOOKED THROUGH OTHERS TO PAY
PENALTIES OR TO ACCEPT DISCRIMINATORY BOOKING TERMS, AS A CONDITION OF
OBTAINING BOOKING THROUGH THEM (PAR. 52(F), R. 13). 

(4)  ENTERING INTO AGREEMENTS WITH THEATRE OPERATORS WHEREBY THE
OPERATORS AGREE TO PRESENT ONLY ATTRACTIONS BOOKED THROUGH APPELLEES,
AND APPELLEES AGREE NOT TO BOOK FOR COMPETING THEATRE OPERATORS (PAR.
52(G), R. 13). 

(5)  EXCLUDING LEGITIMATE ATTRACTIONS BOOKED BY OTHERS FROM THEATRES
OPERATED BY APPELLEES (PAR. 52(H), R. 13). 

(6)  COERCING AND INTIMIDATING INDEPENDENT THEATRE OPERATORS IN TOWNS
WHERE APPELLEES OPERATE THEATRES TO RELINQUISH CONTROL OF THEIR
THEATRES BY THREATENING TO DEPRIVE THEM, BY VIRTUE OF APPELLEES'
CONTROL OF BOOKING, OF ACCESS TO LEGITIMATE ATTRACTIONS (PAR. 52(K), R.
14). 

SOME OF THE EFFECTS OF APPELLEES' CONCERTED ACTIONS HAVE BEEN THAT
PRODUCERS HAVE BEEN FORCED TO BOOK EXCLUSIVELY WITH APPELLEES ON NON
COMPETITIVE TERMS; PERSONS HAVE BEEN DENIED THE RIGHT TO ENGAGE IN THE
BUSINESS OF OPERATING A BOOKING OFFICE; OPERATORS OF INDEPENDENT
THEATRES COMPETING WITH THOSE OF APPELLEES HAVE BEEN SYSTEMATICALLY
EXCLUDED FROM OBTAINING LEGITIMATE ATTRACTIONS AND, IN MANY CITIES,
HAVE BEEN FORCED OUT OF BUSINESS; IN CITIES IN WHICH THE APPELLEES
OPERATE THEATRES, PERSONS HAVE BEEN DENIED THE RIGHT TO ENGAGE IN THE
BUSINESS OF PRESENTING LEGITIMATE ATTRACTIONS, AND THE PUBLIC HAS BEEN
DEPRIVED OF ACCESS TO LEGITIMATE ATTRACTIONS AND THE BENEFITS WHICH
FLOW FROM OPEN COMPETITION; AND INTERSTATE COMMERCE IN PRODUCTION,
BOOKING, AND PRESENTATION HAS BEEN UNREASONABLY RESTRAINED, AND IN
BOOKING AND PRESENTATION HAS BEEN MONOPOLIZED (PAR. 53, R. 14). 
..END :






UNITED STATES V. INTERNATIONAL BOXING CLUB OF NEW YORK 348 U.S. 236 


NO. 53.  ARGUED NOVEMBER 10, 1954 - DECIDED JANUARY 31, 1955 -
REVERSED. 


IN A CIVIL ANTITRUST ACTION BROUGHT BY THE GOVERNMENT TO RESTRAIN
ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT, THE COMPLAINT
ALLEGED, INTER ALIA, THAT THE DEFENDANTS ARE ENGAGED IN THE BUSINESS OF
PROMOTING PROFESSIONAL CHAMPIONSHIP BOXING CONTESTS ON A MULTISTATE
BASIS AND SELLING RIGHTS TO TELEVISE, BROADCAST AND FILM SUCH CONTESTS
FOR INTERSTATE TRANSMISSION; THAT THEIR RECEIPTS FROM THE SALE OF
TELEVISION, RADIO AND MOTION PICTURE RIGHTS REPRESENT OVER 25% OF THEIR
TOTAL REVENUE AND IN SOME INSTANCES EXCEED THE REVENUE FROM THE SALE OF
ADMISSION TICKETS; AND THAT THE DEFENDANTS HAVE RESTRAINED AND
MONOPOLIZED TRADE AND COMMERCE THROUGH A CONSPIRACY TO EXCLUDE
COMPETITION IN THEIR LINE OF BUSINESS.  HELD:  THE COMPLAINT STATES A
CAUSE OF ACTION, AND THE GOVERNMENT IS ENTITLED TO AN OPPORTUNITY TO
PROVE ITS ALLEGATIONS.  PP. 237-245. 

(A)  AS DESCRIBED IN THE COMPLAINT, DEFENDANTS' BUSINESS OF PROMOTING
PROFESSIONAL CHAMPIONSHIP BOXING CONTESTS ON A MULTISTATE BASIS AND
SELLING RIGHTS TO TELEVISE, BROADCAST AND FILM SUCH CONTESTS FOR
INTERSTATE TRANSMISSION CONSTITUTES "TRADE OR COMMERCE AMONG THE
SEVERAL STATES" WITHIN THE MEANING OF THE SHERMAN ACT.  PP. 240-243. 

(B)  THAT A BOXING MATCH IS "A LOCAL AFFAIR" DOES NOT ALONE BAR
APPLICATION OF THE SHERMAN ACT TO A BUSINESS BASED ON THE PROMOTION OF
SUCH MATCHES, IF THE BUSINESS ITSELF ENGAGED IN INTERSTATE COMMERCE OR
IF THE BUSINESS IMPOSES ILLEGAL RESTRAINTS ON INTERSTATE COMMERCE.  P.
241. 

(C)  FEDERAL BASEBALL CLUB V. NATIONAL LEAGUE, 259 U.S. 200, AND
TOOLSON V. NEW YORK YANKEES, 346 U.S. 356, DID NOT IMMUNIZE FROM
APPLICATION OF THE SHERMAN ACT ALL BUSINESSES BASED ON PROFESSIONAL
SPORTS.  PP. 241-243. 

(D)  WHETHER SUCH A BROAD EXEMPTION SHOULD BE GRANTED IS AN ISSUE TO
BE RESOLVED BY CONGRESS, NOT THIS COURT.  PP. 243-245. 

UNITED STATES V. INTERNATIONAL BOXING CLUB OF NEW YORK, INC. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL ANTITRUST ACTION BROUGHT BY THE GOVERNMENT IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. 
THE DEFENDANTS - THREE CORPORATIONS AND TWO INDIVIDUALS - ARE ENGAGED
IN THE BUSINESS OF PROMOTING PROFESSIONAL CHAMPIONSHIP BOXING
CONTESTS.  (FN1)  THE GOVERNMENT'S COMPLAINT CHARGES THAT THE
DEFENDANTS, IN THE COURSE OF THIS BUSINESS, HAVE VIOLATED SECS. 1 AND 2
OF THE SHERMAN ACT.  (FN2)  AFTER THIS COURT'S DECISION IN TOOLSON V.
NEW YORK YANKEES, 346 U.S. 356, THE DEFENDANTS MOVED TO DISMISS THE
COMPLAINT.  THE DISTRICT COURT GRANTED THE MOTION IN RELIANCE UPON THE
TOOLSON DECISION AND FEDERAL BASEBALL CLUB OF BALTIMORE V. NATIONAL
LEAGUE OF PROFESSIONAL BASEBALL CLUBS, 259 U.S. 200.  (FN3)  THE CASE,
TOGETHER WITH UNITED STATES V. SHUBERT, ANTE, P. 222, IS HERE ON DIRECT
APPEAL UNDER THE EXPEDITING ACT, 15 U.S.C. SEC. 29. 

THE GOVERNMENT'S COMPLAINT ALLEGES THAT PROMOTERS OF PROFESSIONAL
CHAMPIONSHIP BOXING CONTESTS: 

"MAKE A SUBSTANTIAL UTILIZATION OF THE CHANNELS OF INTERSTATE TRADE
AND COMMERCE TO: 

"(A)  NEGOTIATE CONTRACTS WITH BOXERS, ADVERTISING AGENCIES, SECONDS,
REFEREES, JUDGES, ANNOUNCERS, AND OTHER PERSONNEL LIVING IN STATES
OTHER THAN THOSE IN WHICH THE PROMOTERS RESIDE: 

"(B)  ARRANGE AND MAINTAIN TRAINING QUARTERS IN STATES OTHER THAN
THOSE IN WHICH THE PROMOTERS RESIDE: 

"(C)  LEASE SUITABLE ARENAS, AND ARRANGE OTHER DETAILS FOR BOXING
CONTESTS, PARTICULARLY WHEN THE CONTESTS ARE HELD IN STATES OTHER THAN
THOSE IN WHICH THE PROMOTERS RESIDE: 

"(D)  SELL TICKETS TO CONTESTS ACROSS STATE LINES: 

"(E)  NEGOTIATE FOR THE SALE OF AND SELL RIGHTS TO MAKE AND
DISTRIBUTE MOTION PICTURES OF BOXING CONTESTS TO THE 18,000 THEATRES IN
THE UNITED STATES: 

"(F)  NEGOTIATE FOR THE SALE OF AND SELL RIGHTS TO BROADCAST AND
TELECAST BOXING CONTESTS TO HOMES THROUGH MORE THAN 3,000 RADIO
STATIONS AND 100 TELEVISION STATIONS IN THE UNITED STATES; AND 

"(G)  NEGOTIATE FOR THE SALE OF AND SELL RIGHTS TO TELECAST BOXING
CONTESTS TO SOME 200 MOTION PICTURE THEATRES IN VARIOUS STATES OF THE
UNITED STATES FOR DISPLAY BY LARGE-SCREEN TELEVISION." 

THE PROMOTER'S RECEIPTS FROM THE SALE OF TELEVISION, RADIO, AND
MOTION PICTURE RIGHTS TO CHAMPIONSHIP MATCHES, ACCORDING TO THE
COMPLAINT, REPRESENT ON THE AVERAGE OVER 25% OF THE PROMOTER'S TOTAL
REVENUE AND IN SOME INSTANCES EXCEED THE REVENUE DERIVED FROM THE SALE
OF ADMISSION TICKETS.  (FN4)  THE COMPLAINT ALLEGES THAT THE DEFENDANTS
HAVE RESTRAINED AND MONOPOLIZED THIS TRADE AND COMMERCE - "THE
PROMOTION, EXHIBITION, BROADCASTING, TELECASTING, AND MOTION PICTURE
PRODUCTION AND DISTRIBUTION OF PROFESSIONAL CHAMPIONSHIP BOXING
CONTESTS IN THE UNITED STATES" - THROUGH A CONSPIRACY TO EXCLUDE
COMPETITION IN THEIR LINE OF BUSINESS.  THE CONSPIRACY, IT IS CLAIMED,
BEGAN IN 1949 WITH AN AGREEMENT AMONG THE DEFENDANTS AND JOE LOUIS,
THEN HEAVYWEIGHT CHAMPION OF THE WORLD, THAT LOUIS WOULD RESIGN HIS
TITLE, THAT HE WOULD PROCURE EXCLUSIVE RIGHTS TO THE SERVICES OF THE
FOUR LEADING TITLE CONTENDERS IN A SERIES OF ELIMINATION CONTESTS WHICH
WOULD RESULT IN THE RECOGNITION OF A NEW HEAVYWEIGHT CHAMPION, THAT HE
WOULD ALSO OBTAIN EXCLUSIVE RIGHTS TO BROADCAST, TELEVISE, AND FILM
THESE CONTESTS, AND THAT HE WOULD ASSIGN ALL SUCH EXCLUSIVE RIGHTS TO
THE DEFENDANTS.  THE DEFENDANTS HAVE ALLEGEDLY SOUGHT TO MAINTAIN AND
EFFECTUATE THIS CONSPIRACY BY THE FOLLOWING MEANS:  BY ELIMINATING THE
"LEADING COMPETING PROMOTER" OF CHAMPIONSHIP MATCHES; BY ACQUIRING THE
EXCLUSIVE RIGHT TO PROMOTE PROFESSIONAL BOXING CONTESTS IN ALL THE
"PRINCIPAL ARENAS" WHERE CHAMPIONSHIP MATCHES CAN BE SUCCESSFULLY
PRESENTED; AND BY REQUIRING EACH TITLE CONTENDER TO AGREE, AS A
CONDITION OF FIGHTING FOR THE CHAMPIONSHIP, THAT IF HE WINS HE WOULD,
FOR A PERIOD OF THREE (AND SOMETIMES FIVE) YEARS, TAKE PART ONLY IN
TITLE CONTESTS PROMOTED BY THE DEFENDANTS.  AS A CONSEQUENCE OF THESE
ACTS, THE COMPLAINT ALLEGES, THE DEFENDANTS HAVE PROMOTED, OR
PARTICIPATED IN THE PROMOTION OF, ALL BUT TWO OF THE 21 CHAMPIONSHIP
MATCHES HELD IN THE UNITED STATES BETWEEN JUNE 1949 AND THE FILING OF
THE COMPLAINT IN MARCH 1952. 

THESE ALLEGATIONS MUST OF COURSE BE TAKEN AS TRUE AT THIS STAGE OF
THE PROCEEDING.  AND THE DEFENDANTS DO NOT DENY THAT THE ALLEGATIONS
STATE A CAUSE OF ACTION IF THEIR BUSINESS IS SUBJECT TO THE SHERMAN
ACT.  THE QUESTION THUS PRESENTED IS WHETHER THE DEFENDANTS' BUSINESS
AS DESCRIBED IN THE COMPLAINT - THE PROMOTION OF PROFESSIONAL
CHAMPIONSHIP BOXING CONTESTS ON A MULTISTATE BASIS, COUPLED WITH THE
SALE OF RIGHTS TO TELEVISE, BROADCAST, AND FILM THE CONTESTS FOR
INTERSTATE TRANSMISSION - CONSTITUTES "TRADE OR COMMERCE AMONG THE
SEVERAL STATES" WITHIN THE MEANING OF THE SHERMAN ACT. 

THE QUESTION IS PERHAPS A NOVEL ONE IN THAT THIS COURT HAS NEVER
BEFORE CONSIDERED THE ANTITRUST STATUS OF THE BOXING BUSINESS.  YET, IF
IT WERE NOT FOR FEDERAL BASEBALL AND TOOLSON, WE THINK THAT IT WOULD BE
TOO CLEAR FOR DISPUTE THAT THE GOVERNMENT'S ALLEGATIONS BRING THE
DEFENDANTS WITHIN THE SCOPE OF THE ACT.  A BOXING MATCH - LIKE THE
SHOWING OF A MOTION PICTURE (UNITED STATES V. CRESCENT AMUSEMENT CO.,
323 U.S. 173, 183) OR THE PERFORMANCE OF A VAUDEVILLE ACT (HART V. B.F.
KEITH VAUDEVILLE EXCHANGE, 262 U.S. 271) OR THE PERFORMANCE OF A
LEGITIMATE STAGE ATTRACTION (UNITED STATES V. SHUBERT, ANTE, P. 222) -
"IS OF COURSE A LOCAL AFFAIR."  BUT THAT FACT ALONE DOES NOT BAR
APPLICATION OF THE SHERMAN ACT TO A BUSINESS BASED ON THE PROMOTION OF
SUCH MATTERS, IF THE BUSINESS IS ITSELF ENGAGED IN INTERSTATE COMMERCE
OR IF THE BUSINESS IMPOSES ILLEGAL RESTRAINTS ON INTERSTATE COMMERCE. 
APART FROM FEDERAL BASEBALL AND TOOLSON, IT WOULD BE SUFFICIENT, WE
BELIEVE, TO REST ON THE ALLEGATION THAT OVER 25% OF THE REVENUE FROM
CHAMPIONSHIP BOXING IS DERIVED FROM INTERSTATE OPERATIONS THROUGH THE
SALE OF RADIO, TELEVISION, AND MOTION PICTURE RIGHTS.  (FN5)  COMPARE
UNITED STATES V. YELLOW CAB CO., 332 U.S. 218, 225-226; TIMES-PICAYUNE
CO. V. UNITED STATES, 345 U.S. 594, 602, N. 11; MANDEVILLE ISLAND FARMS
V. AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219, 227-235; UNITED STATES V.
FRANKFORT DISTILLERIES, 324 U.S. 293, 297-298; UNITED STATES V. WOMEN'S
SPORTSWEAR MFRS.  ASSN., 336 U.S. 460, 464; UNITED STATES V. EMPLOYING
PLASTERERS ASSN., 347 U.S. 186, 189; AND CASES COLLECTED IN THE SHUBERT
OPINION.  SEE ALSO CURRIN V. WALLACE, 306 U.S. 1, 10; WICKARD V.
FILBURN, 317 U.S. 111, 127-128. 

NOTWITHSTANDING THESE DECISIONS, THE DEFENDANTS CONTEND THAT THEY ARE
EXEMPT FROM THE SHERMAN ACT UNDER THE RULE OF STARE DECISIS.  THEY,
LIKE THE DEFENDANTS IN THE SHUBERT CASE, BASE THIS CONTENTION ON
FEDERAL BASEBALL AND TOOLSON.  BUT THEY WOULD BE CONTENT WITH A MORE
RESTRICTIVE INTERPRETATION OF FEDERAL BASEBALL AND TOOLSON THAN THE
DEFENDANTS IN THE SHUBERT CASE.  THE SHUBERT DEFENDANTS ARGUE THAT
FEDERAL BASEBALL AND TOOLSON IMMUNIZED ALL BUSINESSES BUILT AROUND THE
LIVE PRESENTATION OF LOCAL EXHIBITIONS.  THE DEFENDANTS IN THE INSTANT
CASE ARGUE THAT FEDERAL BASEBALL AND TOOLSON IMMUNIZED ONLY SUCH
BUSINESSES AS INVOLVE EXHIBITIONS OF AN ATHLETIC NATURE.  WE CANNOT
ACCEPT EITHER ARGUMENT. 

FOR THE REASONS STATED IN THE TOOLSON OPINION AND RESTATED IN UNITED
STATES V. SHUBERT, ANTE, P. 222, TOOLSON NEITHER OVERRULED FEDERAL
BASEBALL NOR NECESSARILY REAFFIRMED ALL THAT WAS SAID IN FEDERAL
BASEBALL.  INSTEAD, "WITHOUT RE-EXAMINATION OF THE UNDERLYING ISSUES,"
THE COURT ADHERED TO FEDERAL BASEBALL "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."  346 U.S., AT
357.  WE HAVE HELD TODAY IN THE SHUBERT CASE THAT TOOLSON IS NOT
AUTHORITY FOR EXEMPTING OTHER BUSINESSES MERELY BECAUSE OF THE
CIRCUMSTANCE THAT THEY ARE ALSO BASED ON THE PERFORMANCE OF LOCAL
EXHIBITIONS.  THAT RULING IS FULLY APPLICABLE HERE. 

MOREOVER, NONE OF THE FACTORS UNDERLYING THE TOOLSON DECISION ARE
PRESENT IN THE INSTANT CASE.  AT THE TIME THE GOVERNMENT'S COMPLAINT
WAS FILED, NO COURT HAD EVER HELD THAT THE BOXING BUSINESS WAS NOT
SUBJECT TO THE ANTITRUST LAWS.  (FN6)  INDEED, THIS COURT'S DECISION IN
THE HART CASE, LESS THAN A YEAR AFTER THE FEDERAL BASEBALL DECISION,
CLEARLY ESTABLISHED THAT FEDERAL BASEBALL COULD NOT BE RELIED UPON AS A
BASIS OF EXEMPTION FOR OTHER SEGMENTS OF THE ENTERTAINMENT BUSINESS,
ATHLETIC OR OTHERWISE.  SURELY THERE IS NOTHING IN THE HOLMES OPINION
IN THE HART CASE TO SUGGEST, EVEN REMOTELY, THAT THE COURT WAS DRAWING
A LINE BETWEEN ATHLETIC AND NONATHLETIC ENTERTAINMENT.  NOR DO WE SEE
THE RELEVANCE OF SUCH A DISTINCTION FOR THE PURPOSE OF DETERMINING WHAT
CONSTITUTES "TRADE OR COMMERCE AMONG THE SEVERAL STATES."  THE
CONTROLLING CONSIDERATION IN FEDERAL BASEBALL AND HART WAS, INSTEAD, A
VERY PRACTICAL ONE - THE DEGREE OF INTERSTATE ACTIVITY INVOLVED IN THE
PARTICULAR BUSINESS UNDER REVIEW.  IT FOLLOWS THAT STARE DECISIS CANNOT
HELP THE DEFENDANTS HERE; FOR, CONTRARY TO THEIR ARGUMENT, FEDERAL
BASEBALL DID NOT HOLD THAT ALL BUSINESSES BASED ON PROFESSIONAL SPORTS
WERE OUTSIDE THE SCOPE OF THE ANTITRUST LAWS.  THE ISSUE CONFRONTING US
IS, THEREFORE, NOT WHETHER A PREVIOUSLY GRANTED EXEMPTION SHOULD
CONTINUE, BUT WHETHER AN EXEMPTION SHOULD BE GRANTED IN THE FIRST
INSTANCE.  AND THAT ISSUE IS FOR CONGRESS TO RESOLVE, NOT THIS COURT. 
SEE UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533,
561. 

THE ISSUE WAS, IN FACT, BEFORE CONGRESS ONLY RECENTLY.  IN 1951, FOUR
IDENTICAL BILLS WERE INTRODUCED IN CONGRESS - THREE IN THE HOUSE AND
ONE IN THE SENATE - FORBIDDING THE APPLICATION OF THE ANTITRUST LAWS
"TO ORGANIZED PROFESSIONAL SPORTS ENTERPRISES OR TO ACTS IN THE CONDUCT
OF SUCH ENTERPRISES."  (FN7)  EXTENSIVE HEARINGS ON THE THREE HOUSE
BILLS WERE CONDUCTED BY THE SUBCOMMITTEE ON STUDY OF MONOPOLY POWER OF
THE COMMITTEE ON THE JUDICIARY; NO HEARINGS WERE HELD ON THE SENATE
BILL.  (FN8)  AT THE CONCLUSION OF ITS HEARINGS, THE HOUSE SUBCOMMITTEE
UNANIMOUSLY DECLARED ITS OPPOSITION TO THE FOUR BILLS.  ITS REPORT
STATES:  (FN9) 

"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." 

WITH RESPECT TO BASEBALL, THE SUBCOMMITTEE RECOMMENDED A POSTPONEMENT
OF ANY LEGISLATION UNTIL THE STATUS OF FEDERAL BASEBALL WAS CLARIFIED
IN THE COURTS.  (FN10)  NO FURTHER ACTION WAS TAKEN ON ANY OF THE
BILLS; CONGRESS THUS LEFT INTACT THE THEN-EXISTING COVERAGE OF THE
ANTITRUST LAWS.  YET THE DEFENDANTS IN THE INSTANT CASE ARE NOW ASKING
THIS COURT FOR PRECISELY THE SAME EXEMPTION WHICH ENACTMENT OF THOSE
BILLS WOULD HAVE AFFORDED.  THEIR REMEDY, IF THEY ARE ENTITLED TO ONE,
LIES IN FURTHER RESORT TO CONGRESS, AS WE HAVE ALREADY STATED.  FOR WE
AGREE THAT "SUCH A BROAD EXEMPTION COULD NOT BE GRANTED WITHOUT
SUBSTANTIALLY REPEALING THE ANTITRUST LAWS." 

AS IN THE SHUBERT CASE, WE ARE CONCERNED HERE ONLY WITH THE
SUFFICIENCY OF THE GOVERNMENT'S COMPLAINT.  WE HOLD THAT THE COMPLAINT
STATES A CAUSE OF ACTION AND THAT THE GOVERNMENT IS ENTITLED TO AN
OPPORTUNITY TO PROVE ITS ALLEGATIONS.  THE JUDGMENT OF THE COURT BELOW
IS REVERSED. 

FN1 THE CORPORATE DEFENDANTS ARE INTERNATIONAL BOXING CLUB OF NEW
YORK, INC., INTERNATIONAL BOXING CLUB, AND MADISON SQUARE GARDEN
CORPORATION.  THE INDIVIDUAL DEFENDANTS ARE JAMES D. NORRIS AND ARTHUR
M. WIRTZ.  THE INDIVIDUAL DEFENDANTS, TOGETHER WITH MADISON SQUARE
GARDEN CORPORATION, OWN 80% OF THE STOCK OF INTERNATIONAL BOXING CLUB
OF NEW YORK, INC., AND INTERNATIONAL BOXING CLUB.  THE NATURE OF THE
BUSINESS INVOLVED IS DESCRIBED IN AN APPENDIX TO THIS OPINION. 

FN2  15 U.S.C. SECS. 1 AND 2.  THESE SECTIONS PROVIDE: 

"SEC. 1  ...  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  ...
.  EVERY PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN ANY
COMBINATION OR CONSPIRACY DECLARED BY SECTIONS 1-7 OF THIS TITLE TO BE
ILLEGAL SHALL BE DEEMED GUILTY OF A MISDEMEANOR  ...  .

"SEC.  2  ... 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  ...
."    SECTION 4 CONFERS JURISDICTION ON THE DISTRICT COURTS "TO PREVENT
AND RESTRAIN VIOLATIONS OF SECTIONS 1-7 OF THIS TITLE" IN EQUITY
PROCEEDINGS INSTITUTED UNDER THE DIRECTION OF THE ATTORNEY GENERAL. 

FN3  THE DISTRICT COURT'S OPINION WAS ORAL AND NOT TRANSCRIBED.  ALL
THE PARTIES AGREE, HOWEVER, THAT THE DISMISSAL WAS BASED ON FEDERAL
BASEBALL AND TOOLSON. 

FN4  THE COMPLAINT FURTHER ALLEGES THAT "WITH THE PROGRESSIVE AND
CONTINUING EXPANSION OF TELEVISION FACILITIES, THE PROPORTION OF THE
PROMOTER'S TOTAL REVENUE DERIVED FROM TELEVISION, RADIO AND MOTION
PICTURES, HAS BEEN ON AN ASCENDING CURVE  ...  ."    FN5  ALL THREE
MEDIA ARE CONCEDEDLY ENGAGED IN INTERSTATE COMMERCE.  E.G., FEDERAL
RADIO COMM'N V. NELSON BROS. CO., 289 U.S. 266, 279 (RADIO); DUMONT
LABORATORIES V. CARROLL, 184 F.2D 153, 154 (C.A. 3D CIR.), CERT.
DENIED, 340 U.S. 929 (TELEVISION); UNITED STATES V. PARAMOUNT PICTURES,
334 U.S. 131 (MOTION PICTURES). 

FN6  SHALL V. HENRY, 211 F.2D 226 (C.A. 7TH CIR.), WAS DECIDED
SUBSEQUENT TO THE DECISION BELOW.  SO ALSO WAS PELLER V. INTERNATIONAL
BOXING CLUB, UNREPORTED, CIVIL 52 C 813, APRIL 23, 1954 (D.C.N.D.
ILL.).  THE UNREPORTED DECISION (D.C.N.D. ILL.) WHICH SHALL V. HENRY
AFFIRMED WAS DECIDED PRIOR TO THE DECISION BELOW BUT AFTER THE FILING
OF THE GOVERNMENT'S COMPLAINT. 

FN7  H.R. 4229, 4230, 4231, AND S. 1526, 82D CONG., 1ST SESS.  THESE
BILLS WERE INTRODUCED "BY FRIENDS OF BASEBALL BECAUSE THEY FEARED THAT
THE CONTINUED EXISTENCE OF ORGANIZED BASEBALL AS AMERICA'S NATIONAL
PASTIME WAS IN SUBSTANTIAL DANGER BY THE THREAT OF IMPENDING
LITIGATION."  H.R. REP. NO. 2002, 82D CONG., 2D SESS., P. 1. 

FN8  THE HOUSE HEARINGS WERE STATED TO BE ON "THE PROBLEM OF WHETHER
OR NOT ORGANIZED BASEBALL SHOULD BE EXEMPTED FROM THE OPERATION OF THE
ANTITRUST LAWS."  HEARINGS ON "ORGANIZED BASEBALL" BEFORE THE HOUSE
SUBCOMMITTEE ON STUDY OF MONOPOLY POWER OF THE COMMITTEE ON THE
JUDICIARY, 82D CONG., 1ST SESS., P. 1. 

FN9  H.R. REP. NO. 2002 (ENTITLED "ORGANIZED BASEBALL"), 82D CONG.,
2D SESS., P. 230.  BETWEEN THE HEARINGS AND THE REPORT, THE
SUBCOMMITTEE ON STUDY OF MONOPOLY POWER WAS RECONSTITUTED AS THE
ANTITRUST SUBCOMMITTEE.  THE REPORT WAS SUBMITTED DIRECTLY TO THE FULL
HOUSE PURSUANT TO H. RES. 95, 82D CONG., 1ST SESS. 

FN10  ID., AT 134-136, 231-232. 

MR. JUSTICE BURTON, RETAINING THE VIEWS EXPRESSED IN HIS DISSENT IN
THE TOOLSON CASE, 346 U.S. 356, 357, JOINS THE OPINION AND JUDGMENT OF
THE COURT IN THIS CASE.  MR. JUSTICE REED JOINS IN THIS CONCURRENCE. 

(FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR.
JUSTICE MINTON, SEE POST, P. 248.) 

(FOR DISSENTING OPINION OF MR. JUSTICE MINTON, SEE POST, P. 251.) 

APPENDIX TO OPINION OF THE COURT. 

THE COMPLAINT DESCRIBED THE "NATURE OF TRADE AND COMMERCE INVOLVED"
AS FOLLOWS: 

10.  BOXERS USUALLY COMPETE IN AMATEUR TOURNAMENTS AS A PRELIMINARY
TO BECOMING PROFESSIONALS.  AS AMATEURS THEY RECEIVE NO PAY AND BOX
UNDER THE SPONSORSHIP OF LOCAL INDEPENDENT BOXING CLUBS, ASSOCIATIONS
OR OTHER ORGANIZATIONS.  WHEN THEY BECOME PROFESSIONALS, THEY CONTRACT
TO BOX AN OPPONENT ON A PER BOUT BASIS FOR LOCAL PROMOTERS AND RECEIVE
A FEE.  IF THEIR SKILL AS PROFESSIONAL BOXERS RESULTS IN AN INCREASING
WILLINGNESS OF THE PUBLIC TO PAY TO VIEW THEIR CONTESTS, THEY CAN
DEMAND HIGHER FEES AND A GREATER PERCENTAGE OF RECEIPTS FROM THE SALE
OF TICKETS AND OTHER RIGHTS.  IF THEIR SKILL INCREASES, THEY ENGAGE IN
PRELIMINARY AND OTHER BOUTS THROUGHOUT THE UNITED STATES AND EVENTUALLY
PARTICIPATE IN MAJOR BOUTS.  THE FEE FOR A MAJOR BOUT IS USUALLY A SUM
GUARANTEED BY THE PROMOTER OR A PREDETERMINED PERCENTAGE OF THE NET
RECEIPTS FROM THE SALE OF TICKETS AND MOTION PICTURE, RADIO AND
TELEVISION RIGHTS. 

11.  THE MOST LUCRATIVE ASSET TO A PROFESSIONAL BOXER IS RECOGNITION
AND DESIGNATION BY THE VARIOUS STATE ATHLETIC COMMISSIONS AND OTHERS AS
"WORLD CHAMPION" IN THE DIVISION IN WHICH HE COMPETES.  THESE DIVISIONS
ARE: 

FLYWEIGHT          112 LBS. 

BANTAMWEIGHT       118  " 

FEATHERWEIGHT      126  " 

LIGHTWEIGHT        135  " 

WELTERWEIGHT       147  " 

MIDDLEWEIGHT       160  " 

LIGHT HEAVYWEIGHT  175  " 

HEAVYWEIGHT        ALL ABOVE 175 LBS. 

A "WORLD CHAMPION" GAINS HIS TITLE BY DEFEATING THE EXISTING CHAMPION
OR BY ELIMINATING ALL CONTENDERS, AND REMAINS WORLD CHAMPION IN HIS
DIVISION UNTIL HE IS, IN TURN, DEFEATED BY A CONTENDER OR RESIGNS THE
TITLE.  SUCH A TITLE AFFORDS TO ITS HOLDER FINANCIAL RETURNS FROM
PERSONAL APPEARANCES AND EXHIBITIONS THROUGHOUT THE UNITED STATES, FROM
ENDORSEMENTS AND OTHER ACTIVITIES, AS WELL AS A GREATER PERCENTAGE OF
THE RECEIPTS FROM HIS BOUTS.  THE PROMOTION OF PROFESSIONAL
CHAMPIONSHIP BOXING CONTESTS IS ALSO MORE LUCRATIVE THAN THE PROMOTION
OF OTHER BOXING CONTESTS. 

12.  OF THE VARIOUS "WORLD CHAMPIONSHIPS," THE HEAVYWEIGHT DIVISION
IS THE MOST IMPORTANT TO BOXERS AND PROMOTERS, AS IT RETURNS THE
GREATEST FINANCIAL BENEFITS.  THE FLYWEIGHT AND BANTAMWEIGHT DIVISIONS
ARE NOT OF SUBSTANTIAL IMPORTANCE IN THE UNITED STATES BECAUSE VERY FEW
AMERICAN BOXERS ARE OF SUCH LIGHT WEIGHTS.  NO CHAMPIONSHIP CONTEST HAS
BEEN HELD IN THE FLYWEIGHT DIVISION IN THE UNITED STATES SINCE 1935;
NONE IN THE BANTAMWEIGHT DIVISION SINCE 1947. 

13.  THE PROMOTION OF PROFESSIONAL CHAMPIONSHIP BOXING CONTESTS, IN
WHICH THE WINNERS ACHIEVE "WORLD CHAMPION" TITLES, INCLUDES NEGOTIATION
AND EXECUTING CONTRACTS WITH BOXERS FOR THE MAIN AND PRELIMINARY BOUTS,
ARRANGING AND MAINTAINING TRAINING QUARTERS, LEASING SUITABLE ARENAS,
SUCH AS STADIA OR BALL PARKS WHERE SUBSTANTIAL NUMBERS OF THE PUBLIC
MAY BE SEATED TO VIEW THE CONTEST, NEGOTIATING AND EXECUTING CONTRACTS
FOR THE EMPLOYMENT OF MATCHMAKERS, ADVERTISING AGENCIES, PRESS AGENTS,
SECONDS, REFEREES, JUDGES, ANNOUNCERS AND OTHER PERSONNEL; ORGANIZING,
ASSEMBLING, AND ARRANGING OTHER DETAILS NECESSARY TO THE EXHIBITION OF
THE CONTESTS; SELLING TICKETS AND RIGHTS TO MAKE MOTION PICTURES OF THE
CONTESTS AND TO DISTRIBUTE THEM THROUGHOUT THE UNITED STATES AND IN
FOREIGN COUNTRIES; AND SELLING RIGHTS TO TRANSMIT THE CONTESTS BY RADIO
OR TELEVISION THROUGHOUT THE UNITED STATES AND FOREIGN COUNTRIES. 

14.  PROMOTERS OF PROFESSIONAL CHAMPIONSHIP BOXING CONTESTS MAKE A
SUBSTANTIAL UTILIZATION OF THE CHANNELS OF INTERSTATE TRADE AND
COMMERCE TO: 

(A)  NEGOTIATE CONTRACTS WITH BOXERS, ADVERTISING AGENCIES, SECONDS,
REFEREES, JUDGES, ANNOUNCERS, AND OTHER PERSONNEL LIVING IN STATES
OTHER THAN THOSE IN WHICH THE PROMOTERS RESIDE: 

(B)  ARRANGE AND MAINTAIN TRAINING QUARTERS IN STATES OTHER THAN
THOSE IN WHICH THE PROMOTERS RESIDE: 

(C)  LEASE SUITABLE ARENAS, AND ARRANGE OTHER DETAILS FOR BOXING
CONTESTS, PARTICULARLY WHEN THE CONTESTS ARE HELD IN STATES OTHER THAN
THOSE IN WHICH THE PROMOTERS RESIDE: 

(D)  SELL TICKETS TO CONTESTS ACROSS STATE LINES: 

(E)  NEGOTIATE FOR THE SALE OF AND SELL RIGHTS TO MAKE AND DISTRIBUTE
MOTION PICTURES OF BOXING CONTESTS TO THE 18,000 THEATRES IN THE UNITED
STATES: 

(F)  NEGOTIATE FOR THE SALE OF AND SELL RIGHTS TO BROADCAST AND
TELECAST BOXING CONTESTS TO HOMES THROUGH MORE THAN 3,000 RADIO
STATIONS AND 100 TELEVISION STATIONS IN THE UNITED STATES; AND: 

(G)  NEGOTIATE FOR THE SALE OF AND SELL RIGHTS TO TELECAST BOXING
CONTESTS TO SOME 200 MOTION PICTURE THEATRES IN VARIOUS STATES OF THE
UNITED STATES FOR DISPLAY BY LARGE-SCREEN TELEVISION. 

15.  MOTION PICTURE FILMS OF PROFESSIONAL CHAMPIONSHIP BOXING
CONTESTS ARE DISTRIBUTED AND EXHIBITED IN THEATRES THROUGHOUT THE
UNITED STATES AND IN FOREIGN COUNTRIES.  SIMILARLY, RADIO AND
TELEVISION BROADCASTS OF SUCH CONTESTS ARE TRANSMITTED THROUGHOUT THE
UNITED STATES AND RADIO BROADCASTS OF THEM ARE ALSO TRANSMITTED TO
FOREIGN COUNTRIES. 

16.  THE 21 MAJOR PROFESSIONAL CHAMPIONSHIP BOXING CONTESTS PROMOTED
IN THE UNITED STATES SINCE JUNE 1949 HAVE PRODUCED A GROSS INCOME FROM
ADMISSIONS AND THE SALE OF MOTION PICTURE, RADIO AND TELEVISION RIGHTS
OF APPROXIMATELY $4,500,000.00.  THE TOTAL SUCH GROSS INCOME FOR ALL
PROFESSIONAL BOXING CONTESTS IN THE UNITED STATES DURING THIS PERIOD,
INCLUDING THE CHAMPIONSHIP CONTESTS, HAS BEEN APPROXIMATELY
$15,000,000.00. 

16(A).  A PROMOTER OF A PROFESSIONAL CHAMPIONSHIP FIGHT USUALLY
DERIVES SUBSTANTIALLY ALL OF HIS REVENUE FROM TWO SOURCES: (A) SALE OF
TICKETS OF ADMISSION AND (B) SALE OF RIGHTS TO TELECAST, BROADCAST AND
PRODUCE AND DISTRIBUTE MOTION PICTURES OF THE FIGHT.  IN SUCH FIGHTS,
SALE OF TELEVISION, RADIO AND MOTION PICTURE RIGHTS ACCOUNT FOR A
SUBSTANTIAL PROPORTION OF THE PROMOTER'S TOTAL REVENUE.  SINCE 1949
SALE OF THESE RIGHTS HAS REPRESENTED, ON THE AVERAGE, OVER 25% OF THE
TOTAL REVENUE DERIVED FROM CHAMPIONSHIP FIGHTS, AND HAS EXCEEDED, IN
SOME INSTANCES, THE REVENUE RECEIVED FROM SALE OF TICKETS OF
ADMISSION.  WITH THE PROGRESSIVE AND CONTINUING EXPANSION OF TELEVISION
FACILITIES, THE PROPORTION OF THE PROMOTER'S TOTAL REVENUE DERIVED FROM
TELEVISION, RADIO AND MOTION PICTURES, HAS BEEN ON AN ASCENDING CURVE,
IN RELATION TO REVENUE DERIVED FROM SALE OF TICKETS OF ADMISSION.  IN
THE MARCIANO-WALCOTT HEAVYWEIGHT CHAMPIONSHIP FIGHT OF MAY 15, 1953, AT
CHICAGO, ILLINOIS, PROMOTED BY DEFENDANTS IBC (N.Y.), IBC (ILL.), JAMES
D. NORRIS AND ARTHUR M. WIRTZ, THE PROMOTERS' RECEIPTS FROM SALE OF
TICKETS OF ADMISSION WERE, AFTER FEDERAL ADMISSION TAXES, $253,462.37,
WHILE THEIR TELEVISION, RADIO AND MOTION PICTURE REVENUE WAS
APPROXIMATELY $300,000. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE MINTON JOINS,
DISSENTING. 

IT WOULD BAFFLE THE SUBTLEST INGENUITY TO FIND A SINGLE
DIFFERENTIATING FACTOR BETWEEN OTHER SPORTING EXHIBITIONS, WHETHER
BOXING OR FOOTBALL OR TENNIS, AND BASEBALL INSOFAR AS THE CONDUCT OF
THE SPORT IS RELEVANT TO THE CRITERIA OR CONSIDERATIONS BY WHICH THE
SHERMAN LAW BECOMES APPLICABLE TO A "TRADE OR COMMERCE."  SEC. 1, 26
STAT. 209, 15 U.S.C.  SEC. 1.  INDEED, THE INTERSTATE ASPECTS OF
BASEBALL AND THE EXTENT OF THE EXPLOITATION OF BASEBALL THROUGH MASS
MEDIA ARE FAR MORE EXTENSIVE THAN IS TRUE OF BOXING.*  IF THE INTRINSIC
APPLICABILITY OF THE SHERMAN LAW WERE THE ISSUE, NO ATTEMPT WOULD BE
MADE TO DIFFERENTIATE THE TWO SPORTS. 

*THIS OPINION IS CONCERNED ONLY WITH THE SPORT AS SUCH, AND NOT WITH
THE ARRANGEMENTS BY WHICH MASS MEDIA SHOW OR REPORT BOUTS.  SUCH
ARRANGEMENTS CLEARLY ARE BEYOND THE SCOPE OF THE TOOLSON CASE, INFRA. 

IN 1922, THE COURT FOUND COMMERCIALIZED BASEBALL OUTSIDE THE SCOPE OF
THE SHERMAN LAW.  FEDERAL BASEBALL CLUB V. NATIONAL LEAGUE, 259 U.S.
200.  LAST TERM THE COURT REFUSED TO RE-EXAMINE "THE UNDERLYING ISSUES"
OF THIS ADJUDICATION AND ADHERED TO IT.  TOOLSON V. NEW YORK YANKEES,
INC., 346 U.S. 356.  WHAT WERE THE "UNDERLYING ISSUES"?  THEY WERE THE
CONSTITUENTS OF BASEBALL IN RELATION TO THE SHERMAN LAW.  BY ADHERING
TO THAT DECISION, THE COURT REFUSED TO DEPART FROM A JUDGMENT
NECESSARILY BASED ON THESE CONSTITUENT ELEMENTS.  TO MY UNDERSTANDING,
THAT IS WHAT IS MEANT BY "WITHOUT RE-EXAMINATION OF THE UNDERLYING
ISSUES."  THE COURT DECIDED AS IT DID IN THE TOOLSON CASE AS AN
APPLICATION OF THE DOCTRINE OF STARE DECISIS.  THAT DOCTRINE IS NOT, TO
BE SURE, AN IMPRISONMENT OF REASON.  BUT NEITHER IS IT A WHIMSY.  IT
CAN HARDLY BE THAT THIS COURT GAVE A PREFERRED POSITION TO BASEBALL
BECAUSE IT IS THE GREAT AMERICAN SPORT.  I DO NOT SUPPOSE THAT THE
COURT WOULD TREAT THE NATIONAL ANTHEM DIFFERENTLY FROM OTHER SONGS IF
THE NATURE OF A SONG BECAME RELEVANT TO ADJUDICATION.  IF STARE DECISIS
BE ONE ASPECT OF LAW, AS IT IS, TO DISREGARD IT IN IDENTIC SITUATIONS
IS MERE CAPRICE. 

CONGRESS, ON THE OTHER HAND, MAY YIELD TO SENTIMENT AND BE
CAPRICIOUS, SUBJECT ONLY TO DUE PROCESS.  AS A MATTER OF FACT, ONE OF
THE EXPLICIT FACTORS THAT LED TO THE RESULT IN TOOLSON WAS THE
RECOGNITION OF CONGRESSIONAL REFUSAL TO UPSET THE FEDERAL BASEBALL
DECISION.  BUT AS THE GOVERNMENT WITH COMMENDABLE CANDOR RECOGNIZES,
CONGRESS WAS NOT ASKED TO AVERT THE THREAT OF LITIGATION AGAINST
BASEBALL BY PROVIDING A SPECIFIC EXEMPTION OF THAT SPORT FROM THE
PROVISIONS OF THE SHERMAN LAW.  THE SPONSORS OF THIS RELIEF DID NOT ASK
IMMUNITY FOR BASEBALL AS SUCH.  THE "LEGISLATION" TO WHICH REFERENCE
WAS MADE IN THE TOOLSON CASE CONSISTED OF BILLS WHICH SOUGHT EXEMPTION
FOR "ORGANIZED PROFESSIONAL SPORTS ENTERPRISES AND ACTS IN THE CONDUCT
OF SUCH ENTERPRISES."  (H.R. 4229, 4230, 4231, AND S. 1526, 82D CONG.,
1ST SESS.)  SINCE, IN THE LIGHT OF ALL THE CIRCUMSTANCES, FEDERAL
BASEBALL WAS LEFT UNDISTURBED BY TOOLSON, I CANNOT BRING MYSELF TO
CONSTRUE THE RESPECT THAT WAS THUS ACCORDED TO STARE DECISIS TO BE
NARROWER THAN THAT ALL SITUATIONS IDENTIC WITH WHAT WAS PASSED ON IN
THE FEDERAL BASEBALL CASE SHOULD BE COVERED BY IT.  I CANNOT TRANSLATE
EVEN THE NARROWEST CONCEPTION OF STARE DECISIS INTO THE EQUIVALENT OF
WRITING INTO THE SHERMAN LAW AN EXEMPTION OF BASEBALL TO THE EXCLUSION
OF EVERY OTHER SPORT DIFFERENT NOT ONE LEGAL JOT OR TITTLE FROM IT. 

BETWEEN THEM, THIS CASE AND SHUBERT ILLUSTRATE THAT NICE BUT RATIONAL
DISTINCTIONS ARE INEVITABLE IN ADJUDICATION.  I AGREE WITH THE COURT'S
OPINION IN SHUBERT FOR PRECISELY THE REASON THAT CONSTRAINS ME TO
DISSENT IN THIS CASE.  WITHIN A YEAR AFTER FEDERAL BASEBALL THE COURT,
AGAIN UNANIMOUSLY AND THROUGH THE SAME WRITER, FOUND THAT A BILL
AGAINST THE SHOW BUSINESS BASED ON THE SHERMAN LAW WAS NOT SO FRIVOLOUS
AS TO CALL FOR DISMISSAL.  HART V. B.F. KEITH VAUDEVILLE EXCHANGE, 262
U.S. 271.  FOR MORE THAN 30 YEARS, THEREFORE, THESE TWO DECISIONS STOOD
AS THE LAW.  THE SHUBERT CASE PLAINLY FALLS WITHIN THE ADJUDICATION OF
HART.  BY THE SAME PROCESS OF REASONING, BOXING FALLS WITHIN FEDERAL
BASEBALL, WHICH THIS COURT REVITALIZED IN TOOLSON DESPITE ALL THE NEW
FACTORS ON WHICH THE DISSENT IN TOOLSON RELIED.    WHATEVER UNSAVORY
ELEMENTS THERE BE IN BOXING CONTESTS IS QUITE BESIDE THE MARK.  THE
STATES TO WHICH THESE EXHIBITIONS ARE DISTASTEFUL ARE POSSESSED OF THE
HONORABLE AND EFFECTIVE REMEDY OF SELF-HELP.  THEY NEED NOT SANCTION
PUGILISTIC EXHIBITIONS, OR MAY SANCTION THEM ONLY UNDER CONDITIONS THAT
SAFEGUARD THEIR NOTIONS OF THE PUBLIC WELFARE. 

MR. JUSTICE MINTON, DISSENTING. 

TO MAKE A CASE UNDER THE SHERMAN ACT, TWO THINGS AMONG OTHERS ARE
ESSENTIAL:  (1) THERE MUST BE TRADE OR COMMERCE; (2) SUCH TRADE OR
COMMERCE MUST BE AMONG THE STATES.    IN THE FEDERAL BASEBALL CASE, 259
U.S. 200, THIS COURT HELD THAT BASEBALL WAS NOT TRADE OR COMMERCE.  IT
SAID, "PERSONAL EFFORT, NOT RELATED TO PRODUCTION, IS NOT A SUBJECT OF
COMMERCE," AND SINCE THE BASEBALL GAME WAS AN EXHIBITION WHOLLY
INTRASTATE, THERE COULD BE NO TRADE OR COMMERCE AMONG THE STATES.  259
U.S. 200, 209. 

IN THE BASEBALL CASE, THIS COURT HELD THAT TRAVELING FROM STATE TO
STATE TO PLAY THE GAME AND ALL THE DETAILS OF ARRANGEMENTS WERE
INCIDENT TO THE EXHIBITION.  IN TOOLSON V. NEW YORK YANKEES, 346 U.S.
356, WE DID NOT OVERRULE THE FEDERAL BASEBALL DECISION; IN FACT, WE
REAFFIRMED THE HOLDING OF THAT CASE. 

WHEN BOXERS TRAVEL FROM STATE TO STATE, CARRYING THEIR SHORTS AND
FANCY DRESSING ROBES IN A DITTY BAG IN ORDER TO PARTICIPATE IN A BOXING
BOUT, WHICH IS WHOLLY INTRASTATE, IT IS NOW HELD BY THIS COURT THAT THE
BOXING BOUT BECOMES INTERSTATE COMMERCE.  WHAT THIS COURT HELD IN THE
FEDERAL BASEBALL CASE TO BE INCIDENT TO THE EXHIBITION NOW BECOMES MORE
IMPORTANT THAN THE EXHIBITION.  THIS IS AS FINE AN EXAMPLE OF THE TAIL
WAGGING THE DOG AS CAN BE CONJURED UP. 

WE ARE NOT DEALING HERE WITH THE QUESTION OF WHETHER THE APPELLEES
HAVE RESTRAINED TRADE IN OR MONOPOLIZED THE RADIO AND TELEVISION
INDUSTRIES.  THAT IS A SEPARATE CONSIDERATION.  WHAT OTHERS DO WITH
PICTURES THEY ARE ALLOWED TO TAKE OF A WHOLLY LOCAL SPECTACLE OR
EXHIBITION BY THEREAFTER USING THE CHANNELS OF INTERSTATE COMMERCE TO
EXHIBIT THEM DOES NOT MAKE A PACKAGE DEAL.  THE APPELLEES HAVE NOTHING
TO DO WITH THE TRANSMISSION OF SOUND OR THE PICTURES.  BECAUSE THESE
INCIDENTS ARE NOT DIRECTLY INVOLVED, NO EFFORT WAS MADE TO BRING THE
RADIO AND TELEVISION COMPANIES AND THE SPONSORS INTO THE CASE. 

THE COURT SAYS:  "THE CONSPIRACY, IT IS CLAIMED, BEGAN IN 1949 WITH
AN AGREEMENT AMONG THE DEFENDANTS AND JOE LOUIS, THEN HEAVYWEIGHT
CHAMPION OF THE WORLD, THAT LOUIS WOULD RESIGN HIS TITLE,  ...  PROCURE
EXCLUSIVE RIGHTS TO THE SERVICES OF THE FOUR LEADING TITLE CONTENDERS
IN A SERIES OF ELIMINATION CONTESTS WHICH WOULD RESULT IN THE
RECOGNITION OF A NEW HEAVYWEIGHT CHAMPION,  ...  AND ...  ASSIGN ALL
SUCH EXCLUSIVE RIGHTS TO THE DEFENDANTS."  OF COURSE, THERE WAS AT THE
TIME ONLY ONE CHAMPION, JOE LOUIS.  HE HAD A MONOPOLY ON THAT, AND
WHILE HE GOT IT BY COMPETITION, HE DID NOT GET IT IN TRADE OR
COMMERCE.  I DO NOT SUPPOSE THAT JOE LOUIS HAD TO GO BACK INTO THE RING
AND BE WALLOPED TO A KNOCKOUT OR A DECISION BEFORE HE COULD SURRENDER
HIS CHAMPIONSHIP.  AND IF HE ARRANGED WITH FOUR OTHER FELLOWS TO FIGHT
IT OUT IN ELIMINATION CONTESTS FOR THE CHAMPIONSHIP AND NO ONE ELSE WAS
RESTRAINED FROM DOING THE SAME, IT IS DIFFICULT FOR ME TO SEE HOW THERE
WAS ANY CONSPIRACY.  IF OTHER PROMOTERS WANTED TO START AN ELIMINATION
CONTEST, THEY WERE FREE TO DO SO.  WHETHER THEY RECEIVED PUBLIC
ACCEPTANCE DEPENDED UPON SOMETHING OTHER THAN TRADE OR COMMERCE.  WHAT
DOES A BOXER OR ATHLETE HAVE FOR SALE BUT "PERSONAL EFFORT, NOT RELATED
TO PRODUCTION," WHICH, AS JUSTICE HOLMES SAID, IS NOT COMMERCE?  SUCH
SERVICES THEY MAY CONTRACT ABOUT FREE FROM ANY CONTROL OF THE SHERMAN
ACT.  SUPPOSE THE APPELLEE DID, AS THE COURT STATES, CONTROL WHAT THE
PARTIES CALLED ALL BUT TWO OF TWENTY-ONE CHAMPIONSHIP CONTESTS, WHAT
TRADE OR COMMERCE HAVE THEY RESTRAINED? 

AS I SEE IT, BOXING IS NOT TRADE OR COMMERCE.  THERE CAN BE NO
MONOPOLY OR RESTRAINT OF NONEXISTENT COMMERCE OR TRADE.  WHETHER
CONGRESS CAN CONTROL BASEBALL AND BOXING I NEED NOT SPECULATE.  WHAT I
AM SAYING IS THAT CONGRESS HAS NOT ATTEMPTED TO DO SO. IF THERE IS A
CONSPIRACY, IT IS NOT ONE TO CONTROL COMMERCE BETWEEN THE STATES. 
..END :




UNITED STATES V. KOPPERS COMPANY, INC. 348 U.S. 254 


NO. 29.  ARGUED NOVEMBER 10, 1954 - DECIDED JANUARY 31, 1955 - 126 CT.
CL. 847, 117 F. SUPP. 181, REVERSED.  209 F.2D 692, AFFIRMED. 


FOR THE YEARS 1940 THROUGH 1945, ABATEMENTS OF FEDERAL EXCESS PROFITS
TAXES, THROUGH APPLICATION OF SEC. 722 OF THE INTERNAL REVENUE CODE,
ARE NOT RETROACTIVE; AND THEY RELIEVE TAXPAYERS FROM THE PAYMENT OF
INTEREST ON DEFICIENCIES IN SUCH TAXES ONLY FROM THE TIME OF THE
ABATEMENTS, RATHER THAN FROM THE ORIGINAL DUE DATES OF THE TAXES
ABATED.  PP. 255-271. 

1.  THIS CONCLUSION IS SUPPORTED BY A CONSIDERATION OF THE STATUTORY
SCHEME AS A WHOLE.  PP. 261-263. 

2.  THE INTEREST HERE INVOLVED IS ATTRIBUTABLE TO I.R.C., SEC.
292(A), AND RAN FROM THE ORIGINAL DUE DATE OF THE TAX.  PP. 263-264. 

3.  I.R.C., SEC. 710(A)(5), ADDED IN 1942, PERMITS A TAXPAYER,
SEEKING RELIEF UNDER SEC. 722, TO DEFER A PART OF ITS EXISTING EXCESS
PROFITS TAXES WHERE ITS ADJUSTED EXCESS PROFITS NET INCOME EXCEEDS 50%
OF ITS NORMAL TAX NET INCOME.  THIS 1942 AMENDMENT, BY ITS
RESTRICTIONS, FAIRLY MEANS THAT, UNDER ALL OTHER CIRCUMSTANCES, THE
EXISTING TAXES WERE TO BE PAID WHEN DUE, OR BE SUBJECTED TO INTEREST
DURING THEIR DELINQUENCY UNDER SEC. 292(A).  PP. 264-265. 

4.  THE DENIAL OF INTEREST ON REFUNDS IS PRESCRIBED BY I.R.C., SEC.
3771(G); AND EQUITY DEMANDS A COMPARABLE RESULT IN THE CASE OF
UNDERPAYMENTS.  PP. 266-267. 

5.  THE CONCLUSION HERE REACHED IS SUPPORTED BY THE LEGISLATIVE
HISTORY AND ADMINISTRATIVE INTERPRETATION OF SEC. 722 AND IS CONSISTENT
IN PRINCIPLE WITH MANNING V. SEELY TUBE & BOX CO., 338 U.S. 561.  PP.
267-271. 

UNITED STATES V. KOPPERS COMPANY, INC. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS.* OF CLAIMS.* 

*TOGETHER WITH NO. 41, PREMIER OIL REFINING COMPANY OF TEXAS V.
UNITED STATES, ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT, ARGUED NOVEMBER 12, 1954. 

IN NO. 29, THE COURT OF CLAIMS AWARDED A TAXPAYER A JUDGMENT FOR A
REFUND OF INTEREST PAID ON THOSE PORTIONS OF DEFICIENCIES IN EXCESS
PROFITS TAXES FOR THE YEARS 1940 AND 1941 WHICH WERE ABATED UNDER SEC.
722 OF THE INTERNAL REVENUE CODE.  126 CT. CL. 847, 117 F. SUPP. 181. 
THIS COURT GRANTED CERTIORARI.  347 U.S. 965.  REVERSED, P. 271. 

IN NO. 41, THE FEDERAL DISTRICT COURT AWARDED A TAXPAYER A JUDGMENT
FOR A REFUND OF INTEREST PAID ON DEFICIENCIES IN FEDERAL EXCESS PROFITS
TAXES FOR THE YEARS 1943, 1944 AND 1945 WHICH WERE ABATED UNDER SEC.
722 OF THE INTERNAL REVENUE CODE.  107 F. SUPP.  837.  THE COURT OF
APPEALS REVERSED.  209 F.2D 692.  THIS COURT GRANTED CERTIORARI.  347
U.S. 987.  AFFIRMED, P. 271. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THESE CASES IS WHETHER, FOR THE YEARS 1940 THROUGH 1945,
ABATEMENTS OF FEDERAL EXCESS PROFITS TAXES, THROUGH APPLICATION OF
I.R.C., SEC. 722, (FN1) ARE RETROACTIVE.  FOR THE REASONS HEREAFTER
STATED, WE HOLD THAT THEY ARE NOT AND THAT THEY RELIEVE TAXPAYERS FROM
THE PAYMENT OF INTEREST ON DEFICIENCIES IN SUCH TAXES FROM THE TIME OF
THE ABATEMENTS, RATHER THAN FROM THE ORIGINAL DUE DATES OF THE TAXES
ABATED. 

IN NO. 29, UNITED STATES V. KOPPERS CO., THE TAXPAYER, RESPONDENT
THEREIN, (FN2) REPORTED AND PAID EXCESS PROFITS TAXES OF $6,512.76 FOR
1940, AND $1,781,288.14 FOR 1941.  (FN3)  IN COMPUTING THESE TAXES, IT
USED EXCESS PROFITS CREDITS BASED UPON INVESTED CAPITAL.  (FN4)  IN
1943 AND 1945, IT APPLIED UNDER SEC. 722 FOR RELIEF FROM ALL OR PART OF
THESE TAXES, CLAIMING THAT THEY WERE "EXCESSIVE AND DISCRIMINATORY." 
(FN5)  IN ACCORDANCE WITH THE USUAL ADMINISTRATIVE PRACTICE, THE
COMMISSIONER DETERMINED THE AMOUNT OF THE EXCESS PROFITS TAXES DUE
WITHOUT REGARD TO THE APPLICATION FOR RELIEF UNDER SEC. 722.  IN DOING
SO, HE FOUND IT NECESSARY TO PROCEED UNDER I.R.C., SEC. 713, USING
EXCESS PROFITS CREDITS BASED UPON THE TAXPAYER'S INCOME, RATHER THAN
UPON ITS INVESTED CAPITAL.  AS A RESULT HE FOUND THAT THE ABOVE TAXES,
AS RETURNED AND PAID BY THE TAXPAYER WITHOUT REFERENCE TO SEC. 722, HAD
BEEN UNDERSTATED AND THAT THE FOLLOWING DEFICIENCIES EXISTED AS OF
THEIR ORIGINAL DUE DATES, MARCH 15, 1941, AND 1942: 

EXCESS PROFITS TAX UNDER SECS. 710(A) AND     1940           1941 

713                    $466,921.67     $2,208,019.09 

PAYMENTS                                                6,512.76
1,781,288.14 

DEFICIENCIES        460,408.91        426,730.95 

THE COMMISSIONER COMPUTED INTEREST, AT 6%, ON THE ABOVE DEFICIENCIES,
AMOUNTING TO $217,376.07 FOR 1940, AND $230,504.86 FOR 1941.  (FN6) 

AFTER EXTENDED INVESTIGATIONS AND NEGOTIATIONS CONDUCTED UNDER
AUTHORITY OF SEC. 722, THE COMMISSIONER AND THE TAXPAYER AGREED UPON A
"CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME" WHICH FIXED THE EXCESS
PROFITS CREDITS FOR THE YEARS IN QUESTION AND, AS A RESULT, THE RELIEF
AVAILABLE UNDER SEC. 722.  AFTER THIS AGREEMENT WAS APPROVED BY THE
EXCESS PROFITS TAX COUNCIL OF THE BUREAU OF INTERNAL REVENUE, THE
COMMISSIONER DETERMINED THAT THE ABOVE-STATED DEFICIENCIES, WITH THE
BENEFIT OF SEC. 722, SHOULD BE REDUCED TO $260,554.39 FOR 1940, AND TO
$95,749.33 FOR 1941.  THE TAXPAYER CONSENTED TO THE ASSESSMENT OF THESE
DEFICIENCIES, WITH INTEREST AS PROVIDED BY LAW.  WHEREUPON, THE
COMMISSIONER ISSUED A FORMAL DETERMINATION OF THEM AND ASSESSED THEM
AGAINST THE TAXPAYER.  HE ALSO ASSESSED THE ABOVE-STATED INTEREST
CHARGES, BASED UPON THE FULL AMOUNT OF THE ORIGINAL DEFICIENCIES. 

THE TAXPAYER PAID THE DEFICIENCIES AND INTEREST SO ASSESSED BUT
CLAIMED REFUNDS OF $94,358.71 FOR 1940, AND $178,784.48 FOR 1941. 
THOSE SUMS REPRESENTED THE INTEREST ON THE ABATEMENTS IN ITS EXCESS
PROFITS TAXES MADE UNDER SEC. 722.  WHEN THE COMMISSIONER DISALLOWED
THE CLAIMS, THE TAXPAYER SUED IN THE COURT OF CLAIMS TO RECOVER THEIR
AMOUNTS.  WITH ONE JUDGE DISSENTING, THAT COURT DEDUCTED A SETOFF AND
RENDERED JUDGMENT IN FAVOR OF THE TAXPAYER FOR $270,216.34.  126 CT.
CL. 847, 117 F. SUPP. 181.  TO RESOLVE THE RESULTING CONFLICT WITH
UNITED STATES V. PREMIER OIL CO., 209 F.2D 692, WE GRANTED CERTIORARI,
347 U.S. 965. 

IN NO. 41, PREMIER OIL CO. V. UNITED STATES, THE TAXPAYER, PETITIONER
THEREIN, PAID THE EXCESS PROFITS TAXES SHOWN ON ITS ORIGINAL RETURNS IN
THE FOLLOWING AMOUNTS:  FOR 1943, $564,167.70 (ADJUSTED TO
$560,484.84); FOR 1944, $353,292.15 (ADJUSTED TO $313,639.13); AND FOR
1945, $45,679.67.  THEREAFTER, SEVERAL DEDUCTIONS WHICH THE TAXPAYER
HAD MADE FROM ITS INCOME WERE DISALLOWED, RESULTING, IN 1948, IN THE
FOLLOWING DEFICIENCIES IN ITS PAYMENT OF ITS EXCESS PROFITS AND INCOME
TAXES AS OF THEIR ORIGINAL DUE DATES:

       DEFICIENCIES WITHOUT THE APPLICATION OF SEC. 722. 

DEFICIENCIES IN EXCESS PROFITS 1943           1944           1945 

TAX, UNDER SECS. 710(A) AND 

713                                   $78,359.80      $55,529.92
$190,785.32 

DEFICIENCIES IN INCOME TAX       9,060.07        9,178.01
(90.00) 

TOTAL DEFICIENCIES                     87,419.87       64,707.93
190,695.32 

THE COMMISSIONER COMPUTED INTEREST, AT 6%, ON THE ABOVE EXCESS
PROFITS TAX DEFICIENCIES AS FOLLOWS: 

FOR 1943 - ON $78,359.80, MARCH 15, 1944, TO JUNE 23, 

1948                                           $20,084.79 

FOR 1944 - ON $55,529.92, MARCH 15, 1945, TO JUNE 23, 

1948                                                   10,901.36 

FOR 1945 - ON $190,785.32, MARCH 15, 1946, TO JUNE 19, 

1948
25,869.26 

TOTAL        56,855.41 

IN THE MEANTIME, THE TAXPAYER HAD APPLIED FOR RELIEF UNDER SEC. 722,
SEEKING ACCEPTANCE OF A "CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME"
OF $357,000 FOR EACH OF THE YEARS AT ISSUE.  THE EXCESS PROFITS TAX
COUNCIL APPROVED THAT FIGURE AS A CREDIT IN LIEU OF $93,150.36 FOR EACH
OF THE YEARS 1943 AND 1944, AND OF $116,437.95 FOR 1945.  THIS CREDIT
SO FAR REDUCED THE TAXPAYER'S TAXABLE EXCESS PROFITS AS TO ABATE ITS
EXCESS PROFITS TAX DEFICIENCIES FOR 1943 AND 1944 ENTIRELY, AND THAT
FOR 1945 TO $366.52.  (FN7)  ACCORDINGLY, THE COMMISSIONER'S ASSESSMENT
OF THE REMAINDER OF THE TAXPAYER'S DEFICIENCIES IN EXCESS PROFITS TAXES
WAS FOR ONLY $366.52.  HOWEVER, AS IN THE KOPPERS CASE, SUPRA, HE
ASSESSED AGAINST THE TAXPAYER THE FULL AMOUNT OF THE INTEREST CHARGES
BASED UPON THE ORIGINAL DEFICIENCIES. 

THE TAXPAYER PAID THE DEFICIENCY AND INTEREST SO ASSESSED BUT CLAIMED
REFUNDS TOTALING $56,855.41.   THAT SUM REPRESENTED THE INTEREST ON THE
ABATEMENTS IN ITS EXCESS PROFITS TAXES MADE UNDER SEC. 722.  WHEN THE
COMMISSIONER DISALLOWED THOSE CLAIMS, THE TAXPAYER BROUGHT THE INSTANT
ACTION TO RECOVER THEIR AMOUNTS, IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS, UNDER 28 U.S.C. SEC. 1346(A)(1). 
THAT COURT RENDERED JUDGMENT FOR THE TAXPAYER.  (FN8)  107 F. SUPP.
837.   THE COURT OF APPEALS REVERSED.  209 F.2D 692.  WE GRANTED
CERTIORARI TO RESOLVE THE CONFLICT WITH UNITED STATES V. KOPPERS CO.,
SUPRA.  347 U.S. 987.  (FN9) 

AS THE UNDERLYING ISSUE IS THE SAME IN EACH CASE AND FOR EACH YEAR,
WE SHALL DISCUSS IT IN RELATION TO THE 1940 TAXES IN THE KOPPERS CASE. 
THERE, THE TAXPAYER, UNDER THE USUAL PROCEDURE, COMPUTED AND PAID THE
EXCESS PROFITS TAX OF $6,512.76 SHOWN ON ITS RETURN FOR 1940.  IN DUE
COURSE THE COMMISSIONER, WITHOUT THE APPLICATION OF SEC. 722,
DETERMINED THAT THE PAYMENT SHOULD HAVE BEEN $466,921.67, AND,
THEREFORE, THAT A DEFICIENCY OF $460,408.91 WAS DUE THE UNITED STATES,
WITH INTEREST FROM MARCH 15, 1941.  I.R.C., SECS.  53(A), 56(A).  IF
THE TAXPAYER HAD MADE NO APPLICATION FOR RELIEF UNDER SEC. 722, THERE
IS NO DOUBT THAT SUCH INTEREST WOULD HAVE REMAINED DUE THE UNITED
STATES UNTIL PAID AND THAT, WHEN PAID, IT WOULD NOT HAVE BEEN
REFUNDABLE.  THE SAME WOULD HAVE BEEN TRUE IF THE TAXPAYER'S
APPLICATION FOR RELIEF UNDER SEC. 722 HAD BEEN FINALLY DENIED.  THE
TAXPAYER CONTENDS, HOWEVER, THAT, BECAUSE THE COMMISSIONER HAS ABATED
THE TAXPAYER'S DEFICIENCY FROM $460,408.91 TO $260,554.39 UNDER SEC.
722, SUCH REDUCTION IS NECESSARILY RETROACTIVE TO MARCH 15, 1941, AND
THAT THE TAXPAYER, ACCORDINGLY, IS ENTITLED TO A REFUND OF THE INTEREST
ON THE SUM ABATED.   THE COMMISSIONER, ON THE OTHER HAND, CONTENDS THAT
THE DETERMINATION UNDER SEC. 722 IS NOT RETROACTIVE BUT IS A CURRENT
ABATEMENT EFFECTIVE WHEN MADE. 

CONGRESS COULD HAVE PRESCRIBED EITHER TREATMENT BUT DID NOT EXPRESSLY
SPECIFY EITHER.  OUR ANSWER IS DETERMINED FROM OUR CONSIDERATION OF THE
STATUTORY SCHEME AS A WHOLE, THE RELATED PROVISIONS OF THE STATUTE, THE
LEGISLATIVE HISTORY OF SEC. 722 AND THE ADMINISTRATIVE INTERPRETATION
THAT HAS BEEN GIVEN THE STATUTE. 

         1.  THE STATUTORY SCHEME AS A WHOLE. 

THE EXCESS PROFITS TAX WAS A DEVICE INITIATED BY CONGRESS, LATE IN
1940, IN GREAT PART FOR THE QUICK COLLECTION OF LARGE SUMS NEEDED BY
THE GOVERNMENT IN A NATIONAL EMERGENCY.  CONGRESS SOUGHT TO OBTAIN
THOSE FUNDS FROM ABNORMALLY HIGH CORPORATE PROFITS WHILE SUCH PROFITS
WERE AVAILABLE.  TO THAT END, IT PRESCRIBED COMPUTATIONS OF UNUSUAL
PROFITS AND REQUIRED PROMPT PAYMENT OF THE TAXES ON THEM.  (FN10) 

FROM THE BEGINNING, THE STATUTE ALSO PROVIDED, IN SEC. 722, A MEANS
OF SUBSEQUENT ADJUSTMENT OF THE TAX IN SPECIAL INSTANCES WHERE THE
NORMAL COMPUTATION OF THE TAX WAS FOUND TO RESULT IN INEQUITY.  THE
ADJUSTMENT COULD BE MADE ONLY AFTER ADMINISTRATIVE ACTION AND, PENDING
ITS CONSIDERATION, IT DID NOT ELIMINATE THE TAX RETURN OR THE TAX
PAYMENT OTHERWISE REQUIRED.  UNTIL 1942, IT DID NOT PERMIT EVEN THE
POSTPONEMENT OF THE PAYMENT OF ANY PART OF THE STANDARD TAX.  INDEED,
THE FULL PAYMENT OF THAT TAX SOON WAS MADE AN EXPRESS CONDITION OF THE
APPLICATION FOR ADJUSTMENT.  I.R.C., SEC. 722(D).  IN 1943, CONGRESS
STATED THAT IF OVERPAYMENTS FOR EITHER OF THE TAXABLE YEARS 1940 OR
1941 WERE FOUND TO BE ATTRIBUTABLE TO SEC. 722, NO INTEREST ON SUCH
OVERPAYMENTS WAS TO BE PAID THE TAXPAYER.  (FN11)  AT LEAST TO THAT
EXTENT, CONGRESS EXPRESSLY RECOGNIZED THAT THE FUNDS PAID AS EXCESS
PROFITS TAXES, WHEN DUE AND WITHOUT THE BENEFIT OF SEC. 722, WERE FUNDS
OWED TO AND USABLE BY THE GOVERNMENT. 

THE SIGNIFICANCE OF THIS STATUTORY SCHEME FURTHER APPEARS WHEN IT IS
APPLIED TO THE INSTANT CASE.  IF THE INSTANT TAXPAYER HAD PAID ITS
REQUIRED TAX IN 1941, THE GOVERNMENT WOULD HAVE RECEIVED AN ADDITIONAL
$460,408.91 AT THAT TIME.  ACCORDINGLY, IT WOULD HAVE HAD THE USE OF
THAT MONEY, WITHOUT CHARGE, DURING THE CRUCIAL WAR YEARS. 
CORRESPONDINGLY, THE TAXPAYER WOULD HAVE BEEN WITHOUT THAT MONEY DURING
THE SAME PERIOD.  INSTEAD, THE TAXPAYER, IN FACT, RETAINED THE FUNDS
FOR ITS OWN USE AND NOW CONTENDS THAT IT NEED NOT COMPENSATE THE
GOVERNMENT FOR SUCH USE OF A SUBSTANTIAL PART OF IT. 

WHILE IN THE INSTANT CASE THE TAXPAYER DID NOT UNDERPAY ANY AMOUNT
ACTUALLY SHOWN ON ITS RETURN, AS CONTEMPLATED BY I.R.C., SEC. 294(A),
IT UNDERSTATED ITS TAX AND THUS WITHHELD THE AMOUNT IN QUESTION.  THE
DETRIMENT TO THE GOVERNMENT AND BENEFIT TO THE TAXPAYER WAS THE SAME -
THE USE OF $460,408.91 FOR EIGHT YEARS.  THE ABOVE DISTINCTION,
EMPHASIZED BY THE TAXPAYER, MAY HAVE HELPED IT IN INITIATING ITS
APPLICATION FOR RELIEF UNDER SEC. 722(D) BECAUSE IT COULD ESTABLISH
THAT, AT LEAST, IT HAD PAID "THE TAX SHOWN ON ITS RETURN."  THE
DISTINCTION, HOWEVER, SUPPLIES NO GROUND FOR DIFFERENT RESULTS ONCE THE
DEFICIENCIES HAVE BEEN DETERMINED.  WE FIND NO IMPLICATION THAT A SELF
SERVING ERROR IN THE UNDERSTATEMENT OF ITS TAX ON ITS TAX RETURN
ENTITLES THE TAXPAYER TO A GREATER ULTIMATE TAX ADVANTAGE THAN DOES A
SELF-SERVING ERROR OF THE SAME SIZE IN THE UNDERPAYMENT OF THE SAME
TAX.  A FORTIORI WE FIND NOTHING TO JUSTIFY A GREATER TAX ADVANTAGE TO
ANY TAXPAYER THAT UNDERPAYS ITS CORRECT TAX, OVER ONE THAT PAYS SUCH
TAX IN FULL WHEN DUE. 

 2.  THE INTEREST HERE IN CONTROVERSY IS ATTRIBUTABLE TO I.R.C.,
SEC. 292(A).  (FN12) 

THE INTEREST HERE IN CONTROVERSY WAS DUE UNDER SEC. 292(A) FROM MARCH
15, 1941, UNTIL PAID.  ACCORDINGLY, TO OBTAIN A REFUND OF IT, THE
TAXPAYER MUST SUSTAIN THE PROPOSITION THAT THE TAX RELIEF GRANTED UNDER
SEC. 722 IS NECESSARILY RETROACTIVE, EXTINGUISHING THE DEFICIENCY AS OF
THE ORIGINAL DUE DATE OF THE TAX AND THUS ELIMINATING THE INTEREST
CHARGES FOR THE CORRESPONDING PERIOD.  TO THAT END, THE TAXPAYER
EMPHASIZES THE STATEMENT IN SEC. 722(A) THAT, AS A CONDITION OF
SECURING THE APPLICATION OF SEC. 722, A TAXPAYER MUST ESTABLISH THAT
THE USUAL PROCEDURE "RESULTS IN AN EXCESSIVE AND DISCRIMINATORY TAX"
AND ALSO MUST ESTABLISH "WHAT WOULD BE A FAIR AND JUST AMOUNT
REPRESENTING NORMAL EARNINGS TO BE USED AS A CONSTRUCTIVE AVERAGE BASE
PERIOD NET INCOME."  ONCE THE TAXPAYER HAS DONE THAT, "THE TAX SHALL BE
DETERMINED BY USING SUCH CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME IN
LIEU OF THE AVERAGE BASE PERIOD NET INCOME OTHERWISE DETERMINED UNDER
THIS SUBCHAPTER."  STANDING ALONE, THIS DIRECTIVE LANGUAGE IS ELASTIC. 
IT CAN BE READ CONSISTENTLY EITHER WITH THE INTERPRETATION THAT THE NEW
COMPUTATION REPLACES AND ABATES THE OLD ONE CURRENTLY, WHEN THE NEW ONE
IS DETERMINED AND ASSESSED, OR THAT IT RETROACTIVELY REPLACES THE OLD
TAX FROM ITS ORIGINAL DUE DATE.  IT LEAVES THE ISSUE OPEN FOR
DISPOSITION BY THE EFFECT OF OTHER CLAUSES RELATING MORE SPECIFICALLY
TO THE ISSUE.  FOR THE REASONS HEREAFTER STATED, WE READ IT AS LOOKING
FORWARD, RATHER THAN BACKWARD.  (FN13)     3.  I.R.C., SEC. 710(A)(5),
(FN14) PERMITS A TAXPAYER, SEEKING RELIEF UNDER SEC. 722,

TO DEFER A PART OF ITS EXISTING EXCESS PROFITS TAXES WHERE ITS
ADJUSTED EXCESS

    PROFITS NET INCOME EXCEEDS 50% OF ITS NORMAL TAX NET INCOME. 

IN 1942, CONGRESS ADDED SEC. 710(A)(5), CONDITIONALLY AUTHORIZING
PARTIAL DEFERMENT OF THE TAX IN CASES WHERE A TAXPAYER CLAIMED BENEFITS
UNDER SEC. 722.  THE CONDITION WAS THAT THE TAXPAYER'S "ADJUSTED EXCESS
PROFITS NET INCOME (COMPUTED WITHOUT REFERENCE TO SECTION 722)" MUST
EXCEED 50% OF THE TAXPAYER'S NORMAL TAX NET INCOME FOR THE YEAR.  EVEN
THEN, DEFERMENT WAS LIMITED TO 33% OF THE BENEFIT CLAIMED UNDER SEC.
722.  IF A TAXPAYER, WITHOUT THIS AMENDMENT, COULD HAVE SUCCESSFULLY
DEFERRED PAYMENT AND AVOIDED INTEREST CHARGES BY FOLLOWING THE COURSE
TAKEN IN THE INSTANT CASES, IT COULD, BY UNDERSTATEMENT OF ITS TAX,
HAVE DEFERRED, WITHOUT INCURRING INTEREST CHARGES, THE PAYMENT OF A
CORRESPONDING PART OF ITS TAX PENDING RELIEF.  IF SO, THERE WOULD HAVE
BEEN LITTLE NEED FOR SEC. 710(A)(5).  THE 1942 AMENDMENT, BY ITS
RESTRICTIONS, FAIRLY MEANT THAT, UNDER ALL OTHER CIRCUMSTANCES, THE
EXISTING TAXES WERE TO BE PAID WHEN DUE, OR BE SUBJECTED TO INTEREST
DURING THEIR DELINQUENCY UNDER SEC. 292(A). 

4.  THE DENIAL OF INTEREST ON REFUNDS IS PRESCRIBED BY I.R.C., SEC.
3771(G).  (FN15) 

ALTHOUGH SEC. 3771(G) WAS NOT ENACTED UNTIL 1943, IT WAS THEN MADE
APPLICABLE TO TAXABLE YEARS BEFORE, AS WELL AS AFTER, JANUARY 1, 1942. 
IT DENIED ALL INTERESTS ON REFUNDS ATTRIBUTABLE TO SEC. 722 WHERE THE
REFUNDS RELATED TO THE TAXABLE YEARS 1940 OR 1941.  IT ALSO DENIED
INTEREST ON REFUNDS RELATING TO TAXABLE YEARS BEGINNING AFTER JANUARY
1, 1942, BUT LIMITED SUCH DENIALS TO THE FIRST YEAR AFTER THE FILING OF
AN APPLICATION FOR RELIEF UNDER SEC. 722, OR TO PERIODS PRIOR TO
SEPTEMBER 16, 1945 (TWO YEARS AFTER THE EFFECTIVE DATE OF THE
AMENDMENT), WHICHEVER WAS THE LATER.  (FN16) 

IN CASES WHERE THE GOVERNMENT HAS AUTHORIZED REFUNDS OF EXCESS
PROFITS TAXES OVERPAID TO IT BY REASON OF THE ABATEMENT OF TAXES
ATTRIBUTABLE TO SEC. 722, SEC. 3771(G) EXPRESSLY PRECLUDES THE PAYMENT
OF INTEREST BY THE GOVERNMENT UPON THE AMOUNTS ABATED.  THIS TREATS THE
GOVERNMENT AS ENTITLED TO THE USE OF THE ABATED AMOUNTS BETWEEN THE
TIME OF THEIR OVERPAYMENT AND THAT OF THEIR ABATEMENT.  EQUITY DEMANDS
A COMPARABLE RESULT IN THE CASE OF UNDERPAYMENTS.  WHERE UNPAID TAXES
ARE ABATED BY REASON OF SEC. 722, THE TAXPAYER THEN RECEIVES A RELEASE
FROM ITS EXISTING OBLIGATION TO PAY THE AMOUNT ABATED.  HOWEVER, THE
GOVERNMENT HAVING BEEN ENTITLED, UP TO THAT TIME, TO COLLECT AND USE
THE SUM ABATED, THE GOVERNMENT SHOULD RECEIVE INTEREST, ON THE ABATED
SUM, FOR THE PERIOD DURING WHICH THE GOVERNMENT WAS ENTITLED TO HAVE
ITS USE.  THIS IS THE NATURAL COUNTERPART OF THE GOVERNMENT'S FREEDOM
FROM PAYING INTEREST ON REFUNDED OVERPAYMENTS. 

    5.  THE LEGISLATIVE HISTORY OF SEC. 722. 

THE EXCESS PROFITS TAX WAS INITIATED IN 1940.  54 STAT. 975 ET SEQ.
IT PROVIDED FOR PROMPT PAYMENT OF LARGE TAXES COMPUTED ON INCOME
REFLECTING UNUSUAL PROFITS.  COMPUTATION OF THE TAX ON THE BASIS OF THE
TAXPAYER'S PRIOR INCOME OR INVESTED CAPITAL WAS PRESCRIBED IN SECS. 713
AND 714.  A STANDARDIZED TREATMENT OF ABNORMALITIES WAS PROVIDED IN
SEC. 721.  IN ADDITION, SEC. 722 AUTHORIZED THE COMMISSIONER "TO MAKE
SUCH ADJUSTMENTS AS MAY BE NECESSARY TO ADJUST ABNORMALITIES AFFECTING
INCOME OR CAPITAL."  54 STAT. 986.  THE PROCEDURE UNDER SEC. 722 WAS
FORMALIZED BY THE EXCESS PROFITS TAX AMENDMENTS OF 1941, 55 STAT. 23
25, AND PUT IN ITS FINAL FORM BY THE REVENUE ACT OF 1942, 56 STAT. 914
917, AS AMENDED, 57 STAT. 601-602.  THE TECHNICAL AND DISCRETIONARY
NATURE OF THE ADJUSTMENT WAS EMPHASIZED BY THE PROVISION THAT THE
DETERMINATION OF MOST COMPUTATIONS UNDER SEC. 722 WAS REVIEWABLE ONLY
BY A SPECIAL DIVISION OF THE TAX COURT CONSTITUTED FOR THE OCCASION AND
BY NO OTHER COURT OR AGENCY.  55 STAT. 26, AS AMENDED, 56 STAT. 917, 59
STAT. 295, 673, 26 U.S.C. SEC. 732.  A TAXPAYER NEVER WAS PERMITTED TO
FILE A RETURN OF ITS OWN UNDER SEC. 722.  S. REP. NO. 75, 77TH CONG.,
1ST SESS. 13; H.R. REP. NO. 146, 77TH CONG., 1ST SESS. 13. 

THE STATUTE HAS BEEN INTERPRETED AS AUTHORIZING A PROCEDURE THAT IS
IN THE NATURE OF A CLAIM FOR A REFUND PRECEDED BY LONG INVESTIGATIONS
OF COMPLICATED SPECIAL CIRCUMSTANCES, AND FOLLOWED BY EXTENDED
NEGOTIATIONS BETWEEN THE COMMISSIONER AND TAXPAYER TO DEVELOP A
MUTUALLY SATISFACTORY "CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME." 
THIS INTERPRETATION LEAVES THE USUAL PROCEDURE UNDER SEC. 710 ET SEQ.
COMPLETE IN ITSELF BUT SUBJECT, UPON APPLICATION, TO ULTIMATE
ADJUSTMENT IN INSTANCES ACCEPTED BY THE COMMISSIONER UNDER SEC. 722. 
(FN17)  WE FIND NO STATEMENT OF A PURPOSE THAT SEC. 722 SHALL RELIEVE
TAXPAYERS FROM PENALTIES OR INTEREST CHARGES DUE EITHER TO THEIR
DEFAULTS IN PAYING, OR THEIR ERRORS IN COMPUTING, THEIR TAXES.  ON THE
CONTRARY, IT HAS BEEN SUGGESTED THAT CONGRESS CONSIDERED RELIEF UNDER
SEC. 722 TO BE IN THE NATURE OF A FAVOR AND AS NOT RELIEVING THE
TAXPAYER OF ITS DUTY TO PAY THE ORIGINAL TAX WHEN DUE.  (FN18) 

THE REGULATIONS DO NOT DEAL SPECIFICALLY WITH THE ISSUE BEFORE US
BUT, FROM THEIR BEGINNING, IN TREASURY REGULATIONS 109, THEY HAVE BEEN
CONSISTENT WITH THE INTERPRETATION GIVEN THE ACT BY THE GOVERNMENT. 
SEE SEC. 30.722-5, AS ADDED BY T.D. 5264, 1943 CUM.  BULL.  761, AS
AMENDED, T.D. 5393, 1944 CUM. BULL.  415.  IN ADDITION TO THE PRACTICE
OF THE COMMISSIONER IN THE INSTANT CASES, THERE IS IN THE RECORD OF THE
PREMIER OIL CO. CASE AN UNDISPUTED AFFIDAVIT BY A TREASURY DEPARTMENT
REVIEWER TO THE EFFECT THAT THE POLICY FOLLOWED WAS THE ADMINISTRATIVE
POLICY OF THE BUREAU: 

"IT IS THE POLICY OF THE BUREAU OF INTERNAL REVENUE IN THOSE CASES
WHERE ALL OR ANY PART OF A TAX DEFICIENCY HAS BEEN EXTINGUISHED BY
APPLICATION OF THE RELIEF PROVISIONS OF SECTION 722 OF THE INTERNAL
REVENUE CODE NOT TO ASSESS THE EXTINGUISHED PORTION OF SUCH
DEFICIENCY.  HOWEVER, INTEREST HAS BEEN COMPUTED AND ASSESSED ON THE
EXTINGUISHED PORTION OF THE DEFICIENCY FROM THE DUE DATE OF THE RETURN
TO THE THIRTIETH DAY AFTER THE AGREEMENT, FORM 874, IS FILED OR DATE OF
ASSESSMENT, WHICHEVER IS THE EARLIER." 

WHILE MANNING V. SEELEY TUBE & BOX CO., 338 U.S. 561, RELATES TO THE
CARRY-BACK PROVISIONS OF THE INTERNAL REVENUE CODE, IT IS THOROUGHLY
CONSISTENT IN PRINCIPLE WITH THE ABOVE DISCUSSION.  THERE THE COURT
UPHELD THE COLLECTION OF INTEREST ON A DEFICIENCY WHICH LATER WAS
EXTINGUISHED BY CARRYING BACK A LOSS WHICH OCCURRED IN A SUBSEQUENT
YEAR.  IT TREATED THE CARRY-BACK AS A CURRENT ADJUSTMENT OF THE TAX
PREVIOUSLY DETERMINED, CHARACTERIZING IT AS AN "ABATEMENT" AT 565.  IT
RECOGNIZED I.R.C., SEC. 3771(E), AS A HELP TO THE INTERPRETATION OF THE
STATUTE, MUCH AS WE RECOGNIZE I.R.C., SEC. 3771(G), AS A HELP HERE. 
SEE 567-568.  THE COURT ALSO THERE ANNOUNCED THAT "IN THE ABSENCE OF A
CLEAR LEGISLATIVE EXPRESSION TO THE CONTRARY, THE QUESTION OF WHO
PROPERLY SHOULD POSSESS THE RIGHT OF USE OF THE MONEY OWED THE
GOVERNMENT FOR THE PERIOD IT IS OWED MUST BE ANSWERED IN FAVOR OF THE
GOVERNMENT."  ID., AT 566.  (FN19) 

WHILE THE DEFICIENCY FOR 1940 IN THE AMOUNT OF $460,408.91 WAS
PROPERLY DETERMINED WITHOUT REFERENCE TO SEC. 722 AND TREATED AS A
DEFICIENCY FOR THAT YEAR BY THE COMMISSIONER, IT WAS NOT SEPARATELY
ASSESSED AS SUCH.  THIS WAS NOT NECESSARY BECAUSE, AT THE TIME OF ITS
DETERMINATION AND BEFORE ITS ASSESSMENT, IT WAS ABATED TO $260,554.39. 
THE LATTER SUM, WITH INTEREST IN THE AMOUNT OF $217,376.07 COMPUTED ON
THE WHOLE DEFICIENCY OF $460,408.91, WAS CORRECTLY AND ADEQUATELY
ASSESSED AND PAID.  (FN20) 

FOR THE FOREGOING REASONS, WE CONCLUDE THAT THE GOVERNMENT, IN EACH
CASE, IS ENTITLED TO RETAIN THE INTEREST NOW IN CONTROVERSY. 
THEREFORE, IN NO. 29, THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED
AND, IN NO. 41, THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.  NO.
29 - REVERSED.  NO. 41 - AFFIRMED. 

FN1  "SEC.  722.  GENERAL RELIEF - CONSTRUCTIVE AVERAGE BASE PERIOD
NET INCOME. 

"(A)  GENERAL RULE.  - IN ANY CASE IN WHICH THE TAXPAYER ESTABLISHES
THAT THE TAX COMPUTED UNDER THIS SUBCHAPTER (AS TO EXCESS PROFITS TAX,
SEC. 710 ET SEQ.)(WITHOUT THE BENEFIT OF THIS SECTION) RESULTS IN AN
EXCESSIVE AND DISCRIMINATORY TAX AND ESTABLISHES WHAT WOULD BE A FAIR
AND JUST AMOUNT REPRESENTING NORMAL EARNINGS TO BE USED AS A
CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME FOR THE PURPOSES OF AN
EXCESS PROFITS TAX BASED UPON A COMPARISON OF NORMAL EARNINGS AND
EARNINGS DURING AN EXCESS PROFITS TAX PERIOD, THE TAX SHALL BE
DETERMINED BY USING SUCH CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME IN
LIEU OF THE AVERAGE BASE PERIOD NET INCOME OTHERWISE DETERMINED UNDER
THIS SUBCHAPTER  ...  . 

     *        *         *         *         * 

"(D)  APPLICATION FOR RELIEF UNDER THIS SECTION.  - THE TAXPAYER
SHALL COMPUTE ITS TAX, FILE ITS RETURN, AND PAY THE TAX SHOWN ON ITS
RETURN UNDER THIS SUBCHAPTER WITHOUT THE APPLICATION OF THIS SECTION,
EXCEPT AS PROVIDED IN SECTION 710(A)(5).  THE BENEFITS OF THIS SECTION
SHALL NOT BE ALLOWED UNLESS THE TAXPAYER WITHIN THE PERIOD OF TIME
PRESCRIBED BY SECTION 322 AND SUBJECT TO THE LIMITATION AS TO AMOUNT OF
CREDIT OR REFUND PRESCRIBED IN SUCH SECTION MAKES APPLICATION THEREFOR
IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE COMMISSIONER WITH THE
APPROVAL OF THE SECRETARY.  IF A CONSTRUCTIVE AVERAGE BASE PERIOD NET
INCOME HAS BEEN DETERMINED UNDER THE PROVISIONS OF THIS SECTION FOR ANY
TAXABLE YEAR, THE COMMISSIONER MAY, BY REGULATIONS APPROVED BY THE
SECRETARY, PRESCRIBE THE EXTENT TO WHICH THE LIMITATIONS PRESCRIBED BY
THIS SUBSECTION MAY BE WAIVED FOR THE PURPOSE OF DETERMINING THE TAX
UNDER THIS SUBCHAPTER FOR A SUBSEQUENT TAXABLE YEAR."  56 STAT. 914
915, AS AMENDED, 57 STAT. 601-602, 26 U.S.C.  SEC. 722(A)(D). 

THE ABOVE PROVISIONS OF SEC. 722(D) APPLY TO TAXABLE YEARS BEGINNING
AFTER DECEMBER 31, 1939.  57 STAT. 602. 

FN2  KOPPERS COMPANY, INC., IS, IN FACT, THE SUCCESSOR TO KOPPERS
UNITED COMPANY AND ITS SUBSIDIARIES, WHICH FILED CONSOLIDATED EXCESS
PROFITS TAX RETURNS FOR THE YEARS IN QUESTION.  FOR CONVENIENCE, ALL OF
SUCH CORPORATIONS ARE REFERRED TO AS THE TAXPAYER. 

FN3  THIS TAX WAS COMPUTED AND PAID PURSUANT TO THE EXCESS PROFITS
TAX ACT OF 1940, 54 STAT. 975, AS AMENDED.  SEE I.R.C., SEC. 710 ET
SEQ. ON NOVEMBER 8, 1945, THESE PROVISIONS BECAME INAPPLICABLE TO ANY
CALENDAR YEAR BEGINNING AFTER 1945.  59 STAT. 568. 

FN4  TWO METHODS OF COMPUTATION OF THE EXCESS PROFITS CREDIT WERE
AUTHORIZED:  THE INVESTED CAPITAL METHOD UNDER I.R.C., SEC. 714, OR THE
BASE PERIOD INCOME METHOD UNDER I.R.C., SEC. 713. 

FN5  BY TIMELY CONSENTS, THE COMMISSIONER AND THE TAXPAYER AGREED
THAT THE AMOUNT OF ANY INCOME, EXCESS PROFITS, OR WAR PROFITS TAX DUE
FOR 1940 AND 1941 COULD BE ASSESSED AT ANY TIME ON OR BEFORE JUNE 30,
1951. 

FN6  THE INTEREST ON THE 1940 TAX RAN FROM MARCH 15, 1941, TO JANUARY
28, 1949, WHICH WAS TREATED AS THE DATE OF ITS PAYMENT; THAT ON THE
1941 TAX RAN FROM MARCH 15, 1942, TO MARCH 16, 1951, WHICH WAS 30 DAYS
AFTER THE FILING OF A WAIVER CONSENTING TO THE ASSESSMENT AND
COLLECTION OF THE DEFICIENCIES FINALLY DETERMINED.  SEE I.R.C., SEC.
292(A), INFRA, NOTE 12. 

FN7  ABATEMENT OF EXCESS PROFITS TAX DEFICIENCIES UNDER SEC. 722. 

DEFICIENCIES WITHOUT APPLICATION             1943             1944
   1945 

OF SEC. 722                             $78,359.80 $55,529.92
$190,785.32 

(DECREASES) UNDER SEC. 722         (175,307.78)       (175,174.49)
(190,418.80) 

RESULTING (CREDITS) AND DEFICIENCY      (96,947.98)
(119,644.57)          366.52 

BY REDUCING THAT PART OF THE TAXPAYER'S INCOME THAT WAS SUBJECT TO
EXCESS PROFITS TAXES, THIS APPLICATION OF SEC. 722 AUTOMATICALLY LEFT
MORE OF THE TAXPAYER'S INCOME SUBJECT TO THE NORMAL TAX AND SURTAX. 
THOSE INCREASES IN THE TAXPAYER'S INCOME TAXES AND THEIR CONSEQUENCES
ARE NOT BEFORE US. 

FN8  THE ORIGINAL JUDGMENT FOR $56,855.41 WAS MODIFIED TO $52,292.40
TO REFLECT SEVERAL ADJUSTMENTS, INCLUDING THE DEDUCTION OF $49.72,
REPRESENTING INTEREST ON THE UNABATED DEFICIENCY OF $366.52 UPON WHICH
THE TAXPAYER CONCEDED THAT INTEREST WAS CHARGEABLE. 

FN9  THE GRANT WAS LIMITED TO THE FOLLOWING QUESTION STATED IN THE
PETITION: 

"WHERE A DEFICIENCY IN EXCESS PROFITS TAX, BASED ON THE INCOME AND
CREDITS AS SHOWN IN THE TAXPAYER'S RETURN, WOULD HAVE EXISTED EXCEPT
FOR THE SUBSEQUENT APPLICATION OF SEC. 722 OF THE INTERNAL REVENUE
CODE, IS THE TAXPAYER LIABLE FOR INTEREST ON THE AMOUNT OF SUCH
DEFICIENCY (HEREINAFTER CALLED THE 'POTENTIAL DEFICIENCY') WHICH WOULD
HAVE EXISTED HAD IT NOT BEEN EXTINGUISHED BY THE APPLICATION OF SECTION
722?"  347 U.S., AT 988. 

FN10  I.R.C., SEC. 713 - ON THE BASIS OF INCOME, OR I.R.C., SEC. 714
ON THE BASIS OF INVESTED CAPITAL.  I.R.C., SEC. 721, AUTHORIZED
STANDARD ALLOWANCES FOR SPECIFIED ABNORMALITIES.  NO RETURN BY THE
TAXPAYER UNDER I.R.C., SEC. 722, WAS PERMISSIBLE. 

FN11  I.R.C., SEC. 3771(G), INFRA, NOTE 15, DISCUSSED AT 266-267,
INFRA.    FN12  "SEC.  292.  INTEREST ON DEFICIENCIES. 

"(A)  GENERAL RULE.  - INTEREST UPON THE AMOUNT DETERMINED AS A
DEFICIENCY SHALL BE ASSESSED AT THE SAME TIME AS THE DEFICIENCY, SHALL
BE PAID UPON NOTICE AND DEMAND FROM THE COLLECTOR, AND SHALL BE
COLLECTED AS A PART OF THE TAX, AT THE RATE OF 6 PER CENTUM PER ANNUM
FROM THE DATE PRESCRIBED FOR THE PAYMENT OF THE TAX (OR, IF THE TAX IS
PAID IN INSTALLMENTS, FROM THE DATE PRESCRIBED FOR THE PAYMENT OF THE
FIRST INSTALLMENT) TO THE DATE THE DEFICIENCY IS ASSESSED, OR, IN THE
CASE OF A WAIVER UNDER SECTION 272(D), TO THE THIRTIETH DAY AFTER THE
FILING OF SUCH WAIVER OR TO THE DATE THE DEFICIENCY IS ASSESSED
WHICHEVER IS THE EARLIER."  53 STAT. 88, AS AMENDED, 57 STAT. 602, 26
U.S.C. SEC. 292(A). 

FN13  SECTION 722(D) LOOKS FORWARD WHEN IT PROVIDES THAT IF A
CONSTRUCTIVE BASE PERIOD NET INCOME HAS BEEN DETERMINED UNDER SEC. 722
FOR ANY TAXABLE YEAR, THE COMMISSIONER MAY, BY REGULATIONS APPROVED BY
THE SECRETARY, PERMIT WAIVERS OF THE SECTION'S LIMITATIONS FOR THE
PURPOSE OF DETERMINING EXCESS PROFITS TAXES FOR A SUBSEQUENT TAXABLE
YEAR.  EVEN THIS EFFECT IS NOT AUTOMATIC, WHEREAS IT MIGHT HAVE BEEN
EXPECTED TO BE SO IF THE ADJUSTMENT WERE A RETROACTIVE CORRECTION OF
THE STANDARD EXCESS PROFITS CREDIT. 

FN14  "SEC.  710.  IMPOSITION OF TAX. 

"(A)  ...  . 

     *         *         *         *         * 

"(5)  DEFERMENT OF PAYMENT IN CASE OF ABNORMALITY.  - IF THE ADJUSTED
EXCESS PROFITS NET INCOME (COMPUTED WITHOUT REFERENCE TO SECTION 722)
FOR THE TAXABLE YEAR OF A TAXPAYER WHICH CLAIMS ON ITS RETURN, IN
ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE COMMISSIONER WITH THE
APPROVAL OF THE SECRETARY, THE BENEFITS OF SECTION 722, IS IN EXCESS OF
50 PER CENTUM OF ITS NORMAL TAX NET INCOME FOR SUCH YEAR, COMPUTED
WITHOUT THE CREDIT PROVIDED IN SECTION 26(E) (RELATING TO ADJUSTED
EXCESS PROFITS NET INCOME), THE AMOUNT OF TAX PAYABLE AT THE TIME
PRESCRIBED FOR PAYMENT MAY BE REDUCED BY AN AMOUNT EQUAL TO 33 PER
CENTUM OF THE AMOUNT OF THE REDUCTION IN THE TAX SO CLAIMED.  FOR THE
PURPOSES OF SECTION 271, IF THE TAX PAYABLE IS THE TAX SO REDUCED, THE
TAX SO REDUCED SHALL BE CONSIDERED THE AMOUNT SHOWN ON THE RETURN."  54
STAT. 975, AS AMENDED, 56 STAT. 917, BUT SEE ALSO, LATER AMENDMENT
INDICATED BY 26 U.S.C. SEC. 710(A)(5). 

THE SENATE COMMITTEE ON FINANCE REPORT ACCOMPANYING THE REVENUE ACT
OF 1942, 56 STAT.  798, STATED: 

"ALTHOUGH IT IS BELIEVED ADVISABLE TO REQUIRE A TAXPAYER SEEKING
RELIEF UNDER SECTION 722 TO COMPUTE AND PAY ITS TAX WITHOUT THE BENEFIT
OF SUCH SECTION, THERE ARE SOME CASES IN WHICH IT WOULD BE INEQUITABLE
TO COMPEL THE TAXPAYER TO PAY THE ENTIRE AMOUNT OF SUCH TAX.  SECTION
710(A) IS THEREFORE AMENDED TO PROVIDE  ...  (AS ABOVE QUOTED)."  S.
REP.  NO. 1631, 77TH CONG., 2D SESS. 205. 

FN15  "SEC.  3771.  INTEREST ON OVERPAYMENTS. 

     *         *  *         *         * 

"(G)  CLAIMS BASED UPON RELIEF UNDER SECTION 722.  - IF ANY PART OF
AN OVERPAYMENT FOR A TAXABLE YEAR BEGINNING PRIOR TO JANUARY 1, 1942,
IS DETERMINED BY THE COMMISSIONER TO BE ATTRIBUTABLE TO THE FINAL
DETERMINATION OF AN APPLICATION FOR RELIEF OR BENEFIT UNDER SECTION 722
FOR ANY TAXABLE YEAR, NO INTEREST SHALL BE ALLOWED OR PAID WITH RESPECT
TO SUCH PART OF THE OVERPAYMENT.  IF ANY PART OF AN OVERPAYMENT FOR A
TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1941, IS DETERMINED BY THE
COMMISSIONER TO BE ATTRIBUTABLE TO THE FINAL DETERMINATION OF AN
APPLICATION FOR RELIEF OR BENEFIT UNDER SECTION 722 FOR ANY TAXABLE
YEAR, NO INTEREST SHALL BE ALLOWED OR PAID WITH RESPECT TO SUCH PART OF
THE OVERPAYMENT FOR ANY PERIOD PRIOR TO ONE YEAR AFTER THE FILING OF
SUCH APPLICATION, OR SEPTEMBER 16, 1945, WHICHEVER IS THE LATER."  53
STAT. 465, AS AMENDED, 57 STAT. 602, 26 U.S.C. SEC. 3771(G). 

FN16  THE SAME ACT ADDED I.R.C., SEC. 292(B), CONTAINING COMPARABLE
PROVISIONS PROHIBITING THE ASSESSMENT OF INTEREST UPON DEFICIENCIES
ATTRIBUTABLE TO THE FINAL DETERMINATION OF AN APPLICATION FOR RELIEF
UNDER SEC. 722.  53 STAT. 88, AS AMENDED, 57 STAT. 602, 26 U.S.C. SEC.
292(B).  THIS APPLIED, FOR EXAMPLE, TO DEFICIENCIES IN THE PAYMENT OF
ORDINARY INCOME TAXES RESULTING FROM AN ABATEMENT UNDER SEC. 722 OF
EXCESS PROFITS TAXES.  SUCH AN ABATEMENT AUTOMATICALLY WOULD LEAVE A
LARGER PORTION OF A CORPORATION'S TAXABLE INCOME SUBJECT TO THE NORMAL
INCOME TAX AND SURTAX.  THIS INCREASE, HOWEVER, WAS NOT MADE
RETROACTIVE ANY MORE THAN THE DECREASE IN THE EXCESS PROFITS TAX WHICH
CAUSED IT WAS MADE RETROACTIVE.  CONGRESS THUS APPROPRIATELY CHARGED NO
INTEREST ON THE RESULTING DEFICIENCY JUST AS IT HAD ALLOWED NONE ON THE
RELATED OVERPAYMENT. 

FN17  WHEN CONGRESS, IN A LATER ACT, AUTHORIZED DEFERMENT OF PAYMENTS
OF COMPARABLE TAXES PENDING DETERMINATIONS OF APPLICATIONS FOR RELIEF,
IT DID SO UNEQUIVOCALLY.  THE RELIEF PROVISIONS IN THE EXCESS PROFITS
TAX ACT OF 1950, 64 STAT. 1137, ADDING I.R.C., SECS. 430-472,
PRESCRIBED FORMULAS FOR DETERMINING A SUBSTITUTE AVERAGE BASE PERIOD
NET INCOME, SECS. 442-446, AND PERMITTED THE TAXPAYER TO ADJUST ITS
BASE PERIOD NET INCOME AT THE TIME THE RETURN WAS FILED, SEC. 447(E). 
SEE S. REP. NO. 2679, 81ST CONG., 2D SESS. 17-21, DISCUSSING THE
GENERAL RELATIONSHIP BETWEEN THESE PROVISIONS AND THE EXPERIENCE GAINED
UNDER SEC. 722 NOW BEFORE US. 

FN18  SEE LEGISLATIVE HISTORY OUTLINED IN AMERICAN COAST LINE V.
COMMISSIONER, 159 F.2D 665, AND POHATCONG HOSIERY MILLS V.
COMMISSIONER, 162 F.2D 146. 

"  ...  THERE IS NO DOUBT A DIFFERENCE BETWEEN A TAX, CONCEDED TO BE
DUE IN THE CORPORATION'S OWN RETURN, AND A TAX ASSESSED AGAINST IT IN
INVITUM.  THIS ARGUMENT MIGHT PERHAPS BE PERSUASIVE, IF THE DENIAL OF
'BENEFITS' UNDER SEC. 722 WERE REGARDED AS A CONSTITUENT FACTOR OF THE
TAX ITSELF, AS FOR EXAMPLE ARE THE CONDITIONS DETAILED IN SEC. 721.  WE
DO NOT SO REGARD SEC. 722; ON THE CONTRARY IT WAS A FAVOR; IT
PRESUPPOSED THAT, EVEN AFTER TAKING INTO ACCOUNT THE AMELIATORY
CONDITIONS OF SEC. 721, THE TAX WAS DUE UNLESS EX GRATIA THE BLOW WAS
SOFTENED; IT WAS A TEMPERING OF THE WIND TO THE SHORN LAMB."  CIRCUIT
JUDGE LEARNED HAND, FOR THE COURT, 159 F.2D, AT 668.  SEE ALSO, IDEAL
PACKING CO. V. COMMISSIONER, 9 T.C. 346, 349; UNI-TERM STEVEDORING CO.
V. COMMISSIONER, 3 T.C. 917, 918. 

"IN EACH INSTANCE THE SECTION (722) PROVIDED THAT A HYPOTHETICAL BASE
PERIOD EARNINGS CREDIT BE 'TAILOR MADE' FOR THE PARTICULAR TAXPAYER AND
THAT CERTAIN ASSUMPTIONS BE MADE IN CONNECTION WITH THE CASE.  EACH
CASE WAS A PROBLEM IN RESEARCH, AND THE LEGAL OR TAX RESULT GENERALLY
WAS INTERTWINED WITH COMPLICATED ACCOUNTING AND ECONOMIC PROBLEMS. 
ALMOST EVERY FACTOR WHICH HAD ANY INFLUENCE ON THE PARTICULAR BUSINESS
WAS PERTINENT TO THE CASE AND THE TIME AND EXPENSE INVOLVED IN
RECONSTRUCTING THE AVERAGE BASE PERIOD EARNINGS CREDIT WERE
TREMENDOUS."  S. REP. NO. 2679, 81ST CONG., 2D SESS. 17. 

FN19  SEE ALSO, STANDARD ROOFING & MATERIAL CO. V. UNITED STATES, 199
F.2D 607; RODGERS V. UNITED STATES, 123 CT. CL. 779, 108 F. SUPP. 727;
CUMBERLAND PORTLAND CEMENT CO. V. UNITED STATES, 101 F. SUPP. 577,
AFF'D, 202 F.2D 152. 

FN20  SEE RODGERS V. UNITED STATES, SUPRA; CUMBERLAND PORTLAND CEMENT
CO. V. UNITED STATES, SUPRA.

MR. JUSTICE REED AND MR. JUSTICE DOUGLAS DISSENT. 
..END :





BALTIMORE CONTRACTORS INC. V. BODINGER 348 U.S. 176 


NO. 31.  ARGUED NOVEMBER 9, 1954 - DECIDED JANUARY 10, 1955 - AFFIRMED. 


IN AN ACTION FOR AN ACCOUNTING, A FEDERAL DISTRICT COURT DENIED A STAY
UNDER SEC. 3 OF THE UNITED STATES ARBITRATION ACT, PENDING
ARBITRATION.  HELD:  AN APPEAL TO A FEDERAL COURT OF APPEALS COULD NOT
BE TAKEN.  PP. 176-185. 

(A)  THE ORDER DENYING A STAY WAS NOT A "FINAL DECISION" WITHIN THE
MEANING OF 28 U.S.C.  SEC. 1291.  P. 179. 

(B)  THE ORDER DENYING A STAY WAS A STEP IN CONTROLLING THE
LITIGATION BEFORE THE TRIAL COURT, NOT THE REFUSAL OF AN INTERLOCUTORY
INJUNCTION WITHIN THE MEANING OF 28 U.S.C.  SEC. 1292(1).  PP. 180
185. 

(C)  MORGANTOWN V. ROYAL INS. CO., 337 U.S. 254, FOLLOWED.  ENELOW V.
NEW YORK LIFE INS. CO., 293 U.S. 379; ETTELSON V. METROPOLITAN INS.
CO., 317 U.S. 188; AND SHANFEROKE CORP. V. WESTCHESTER CORP. 293 U.S.
449, DISTINGUISHED.  PP. 182-185. 

BALTIMORE CONTRACTORS, INC. V. BODINGER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER AN APPEAL MAY BE TAKEN TO A
COURT OF APPEALS FROM A DISTRICT COURT ORDER REFUSING TO STAY AN ACTION
FOR AN ACCOUNTING PENDING ARBITRATION. 

THIS EQUITABLE ACTION WAS BROUGHT IN A STATE COURT FOR AN ACCOUNTING
OF THE PROFITS OF A JOINT VENTURE IN CONSTRUCTION UNDER THE NATIONAL
HOUSING ACT, AND WAS REMOVED TO A FEDERAL DISTRICT COURT ON THE BASIS
OF DIVERSITY OF CITIZENSHIP.  UNDER THE JOINT VENTURE, AGREEMENT,
BALTIMORE CONTRACTORS AGREED TO PAY THE RESPONDENT TWENTY-FIVE PERCENT
OF THE NET PROFITS ON ITS CONSTRUCTION CONTRACTS.  THE PROVISION UNDER
WHICH ARBITRATION WAS SOUGHT READS AS FOLLOWS: 

"IN THE EVENT OF ANY DISPUTE IN THE CALCULATION OF THE NET PROFITS
UNDER THIS PARAGRAPH, FRENKIL SHALL SELECT EITHER WOODEN AND BENSON OR
HASKINS AND SELLS OR AN ACCOUNTANT OR AUDITOR NAMED BY EITHER OF THEM
WHOSE DETERMINATION OF ALL SUCH DISPUTES SHALL BE FINAL AND BINDING
UPON ALL PARTIES TO THE DISPUTE." 

THE COMPLAINT ALLEGED A NUMBER OF IMPROPER PRACTICES ON THE PART OF
CONTRACTORS:  THE USE OF "DUMMY" CORPORATIONS TO INFLATE COSTS; CHARGES
FOR MACHINERY AND MATERIAL PURCHASES WITHOUT CREDITS FOR VALUE OR
SURPLUSES AFTER COMPLETION OF THE JOB; RECEIPT OF UNDISCLOSED REBATES;
EXCESSIVE CHARGES AND RENTAL FOR EQUIPMENT; PADDED INSURANCE COSTS,
ETC. 

THE PETITIONER MOVED FOR A STAY OF THE ACTION PURSUANT TO SEC. 3 OF
THE UNITED STATES ARBITRATION ACT, 9 U.S.C. SEC. 3, WHICH AUTHORIZES A
STAY BY A FEDERAL COURT WHEN AN ISSUE IS "REFERABLE TO ARBITRATION
UNDER AN AGREEMENT IN WRITING FOR SUCH ARBITRATION."  THE DISTRICT
COURT REFUSED THE STAY ON THE GROUND THAT THE AGREEMENT BETWEEN THE
PARTIES DID NOT CONSTITUTE AN AGREEMENT TO ARBITRATE.  THE COURT
APPARENTLY CONSTRUED THE QUOTED PROVISION AS LIMITED TO MATHEMATICAL
DISPUTES.  PETITIONER APPEALED TO THE COURT OF APPEALS FOR THE SECOND
CIRCUIT.  ON RESPONDENT'S MOTION THE COURT OF APPEALS DISMISSED THE
APPEAL, CITING MORGANTOWN V. ROYAL INS. CO., 337 U.S. 254.  CERTIORARI
WAS SOUGHT ON THE FOLLOWING QUESTION: 

"WHETHER IN AN ACTION FOR AN ACCOUNTING AN INTERLOCUTORY ORDER
DENYING A STAY UNDER SECTION 3 OF THE UNITED STATES ARBITRATION ACT
SHOULD BE REGARDED AS A DENIAL OF AN INJUNCTION FROM WHICH AN APPEAL
LIES." 

IN VIEW OF THE CONFLICT BETWEEN THE DECISION BELOW AND HUDSON LUMBER
CO. V. UNITED STATES PLYWOOD CORP., 181 F.2D 929, WE GRANTED THE
PETITION, 347 U.S. 942.  (FN1) 

CONGRESS HAS LONG EXPRESSED A POLICY AGAINST PIECEMEAL APPEALS.  THE
REASONS FOR SUCH A POLICY WERE STATED AS FOLLOWS: 

"FROM THE VERY FOUNDATION OF OUR JUDICIAL SYSTEM THE OBJECT AND
POLICY OF THE ACTS OF CONGRESS IN RELATION TO APPEALS AND WRITS OF
ERROR, (WITH THE SINGLE EXCEPTION OF A PROVISION IN THE ACT OF 1875 IN
RELATION TO CASES OF REMOVAL, WHICH WAS REPEALED BY THE ACT OF 1887,)
HAVE BEEN TO SAVE THE EXPENSE AND DELAYS OF REPEATED APPEALS IN THE
SAME SUIT, AND TO HAVE THE WHOLE CASE AND EVERY MATTER IN CONTROVERSY
IN IT DECIDED IN A SINGLE APPEAL."  MCLISH V. ROFF, 141 U.S. 661, 665
666.  (FN2) 

THAT APPEALS IN CIVIL ACTIONS COULD BE TAKEN TO THE CIRCUIT COURTS ONLY
FROM FINAL DECREES AND JUDGMENTS.  (FN3)  THAT REQUIREMENT OF FINALITY
HAS REMAINED A PART OF OUR LAW EVER SINCE, AND NOW APPEARS AS SEC. 1291
OF THE JUDICIAL CODE.  (FN4) 

THE TRIAL COURT'S INTERPRETATION OF THE QUOTED CONTRACT CLAUSE AND
ITS ORDER DENYING A STAY COULD NOT BE CALLED A FINAL DECISION UNDER
SEC. 1291.  IT WAS AS SURELY AN INTERLOCUTORY ORDER AS THE DISTRICT
COURT'S ORDER IN SHANFEROKE CORP. V. WESTCHESTER CORP., 293 U.S. 449,
451.  (FN5)  THE QUESTION HERE PRESENTED INVOLVES THE INTERPRETATION OF
28 U.S.C. SEC.  1292(1) WHICH MAKES AN EXCEPTION TO THE REQUIREMENT OF
FINALITY, PERMITTING APPEALS FROM "INTERLOCUTORY ORDERS  ... GRANTING,
CONTINUING, MODIFYING, REFUSING OR DISSOLVING INJUNCTIONS, OR REFUSING
TO DISSOLVE OR MODIFY INJUNCTIONS, EXCEPT WHERE A DIRECT REVIEW MAY BE
HAD IN THE SUPREME COURT."  APPEALABILITY HERE TURNS ON WHETHER THE
DISTRICT COURT'S REFUSAL TO STAY THIS TRIAL FOR ARBITRATION WAS THE
REFUSAL OF AN "INJUNCTION" UNDER SEC. 1292. 

THE PROVISION FOR INTERLOCUTORY APPEALS WAS FIRST INTRODUCED IN 1891
WHEN THE CIRCUIT COURTS OF APPEALS WERE ESTABLISHED AS INTERMEDIATE
APPELLATE COURTS.  26 STAT. 826.  SECTION 7 OF THAT ACT ALLOWED APPEALS
FROM INTERLOCUTORY ORDERS IN EQUITY "GRANTING OR CONTINUING"
INJUNCTIONS, BUT FROM THOSE ONLY.  ADDITIONS TO THE CLASS OF APPEALABLE
INTERLOCUTORY ORDERS WERE MADE FROM TIME TO TIME UNTIL THE ENACTMENT OF
SEC. 1292 IN ITS PRESENT FORM.  (FN6)  NO DISCUSSION OF THE UNDERLYING
REASONS FOR MODIFYING THE RULE OF FINALITY APPEARS IN THE LEGISLATIVE
HISTORY, ALTHOUGH THE CHANGES SEEM PLAINLY TO SPRING FROM A DEVELOPING
NEED TO PERMIT LITIGANTS TO EFFECTUALLY CHALLENGE INTERLOCUTORY ORDERS
OF SERIOUS, PERHAPS IRREPARABLE, CONSEQUENCE.  (FN7)  WHEN THE PRESSURE
RISES TO A POINT THAT INFLUENCES CONGRESS, LEGISLATIVE REMEDIES ARE
ENACTED.  THE CONGRESS IS IN A POSITION TO WEIGH THE COMPETING
INTERESTS OF THE DOCKETS OF THE TRIAL AND APPELLATE COURTS, TO CONSIDER
THE PRACTICABILITY OF SAVINGS IN TIME AND EXPENSE, AND TO GIVE PROPER
WEIGHT TO THE EFFECT ON LITIGANTS.  WHEN COUNTERVAILING CONSIDERATIONS
ARISE, INTERESTED PARTIES AND ORGANIZATIONS BECOME ACTIVE IN EFFORTS TO
MODIFY THE APPELLATE JURISDICTION.  (FN8)  THIS COURT, HOWEVER, IS NOT
AUTHORIZED TO APPROVE OR DECLARE JUDICIAL MODIFICATION.  IT IS THE
RESPONSIBILITY OF ALL COURTS TO SEE THAT NO UNAUTHORIZED EXTENSION OR
REDUCTION OF JURISDICTION, DIRECT OR INDIRECT, OCCURS IN THE FEDERAL
SYSTEM.  SHANFEROKE CORP. V. WESTCHESTER CORP., 293 U.S. 449, 451.  ANY
SUCH AD HOC DECISIONS DISORGANIZE PRACTICE BY ENCOURAGING ATTEMPTS TO
SECURE OR OPPOSE APPEALS WITH A CONSEQUENT WASTE OF TIME AND MONEY. 
THE CHOICES FALL IN THE LEGISLATIVE DOMAIN.  THEY ARE ENLARGEMENT OF
THE ALLOWABLE LIST OF APPEALABLE INTERLOCUTORY ORDERS; ABANDONMENT OF
FRAGMENTARY APPEALS; OR A GENERAL ALLOWANCE OF SUCH APPEALS IN THE
DISCRETION OF THE TRIAL JUDGE UPON FINDINGS OF NEED, WITH OR WITHOUT
THE CONSENT OR APPROVAL OF THE APPELLATE COURT. 

A SERIES OF DECISIONS OF THIS COURT HAS DEVELOPED THE RATIONALE FOR
DETERMINING THE APPEALABILITY OF SUCH AN INTERLOCUTORY ORDER AS THIS
UNDER SEC. 1291 AND ITS PREDECESSORS.  THE APPEALABILITY OF ROUTINE
INTERLOCUTORY INJUNCTIVE ORDERS RAISED FEW QUESTIONS.  SEE GEORGE V.
VICTOR CO., 293 U.S. 377.  THERE THE STATUTE WAS CLEAR.  IT WAS WHEN
STAYS OF PROCEEDINGS, IN DISTINCTION TO INJUNCTIONS, WERE APPEALED THAT
THE ISSUE OF JURISDICTION BECAME SHARP.  IN ENELOW V. NEW YORK LIFE
INS. CO., 293 U.S. 379, A CASE ARISING WHEN FEDERAL COURTS HAD ACTIONS
AT LAW AND PROCEEDINGS IN EQUITY, A COMPLAINT AT COMMON LAW ON A LIFE
INSURANCE POLICY PROCUREMENT WITH A PRAYER FOR ITS CANCELLATION AND A
MOTION TO TRY THE EQUITABLE ISSUE FIRST.  THE MOTION WAS GRANTED, AND
JURISDICTION ON APPEAL FROM THAT ORDER WAS APPROVED ON THIS REASONING: 

"THE POWER TO STAY PROCEEDINGS IN ANOTHER COURT APPERTAINS
DISTINCTIVELY TO EQUITY IN THE ENFORCEMENT OF EQUITABLE PRINCIPLES, AND
THE GRANT OR REFUSAL OF SUCH A STAY BY A COURT OF EQUITY OF PROCEEDINGS
AT LAW IS A GRANT OR REFUSAL OF AN INJUNCTION WITHIN THE MEANING OF
SEC. 129 (SEC. 1292).  AND, IN THIS ASPECT, IT MAKES NO DIFFERENCE THAT
THE TWO CASES, THE SUIT IN EQUITY FOR AN INJUNCTION AND THE ACTION AT
LAW IN WHICH PROCEEDINGS ARE STAYED, ARE BOTH PENDING IN THE SAME
COURT, IN VIEW OF THE ESTABLISHED DISTINCTION BETWEEN 'PROCEEDINGS AT
LAW AND PROCEEDINGS IN EQUITY IN THE NATIONAL COURTS AND BETWEEN THE
POWERS OF THOSE COURTS WHEN SITTING AS COURTS OF LAW AND WHEN SITTING
AS COURTS OF EQUITY.'  PER VAN DEVANTER, J., IN GRIESA V. MUTUAL LIFE
INS. CO., 165 FED. 48, 50, 51."  293 U.S., AT 382.  (FN9) 

AFTER THE ADOPTION OF THE ONE FORM OF ACTION BY THE FED. RULES CIV.
PROC., 2, WE REITERATED THIS RULING IN A LIKE CASE.  ETTELSON V.
METROPOLITAN INS. CO., 317 U.S. 188.  WE SAID A STAY OF THE COMPLAINT
UNTIL DISPOSITION OF THE FRAUD ISSUE "IS AS EFFECTIVE  ...  AS AN
INJUNCTION  ...  .  THE STATUTE LOOKS TO THE SUBSTANTIAL EFFECT OF THE
ORDER MADE." 

THE POINT WAS MADE IN THE ENELOW CASE THAT POWER TO STAY MERE STEPS
WITHIN THE FRAMEWORK OF THE LITIGATION BEFORE A COURT DIFFERS AS TO
APPEALABILITY FROM AN INJUNCTION PROHIBITING PROCEEDINGS IN ANOTHER
COURT.  THIS DISTINCTION WAS APPLIED IN MORGANTOWN V. ROYAL INS.  CO.,
337 U.S. 254.  THERE THE INSURANCE COMPANY BROUGHT A SUIT FOR
REFORMATION OF THE CONTRACT.  THE INSURED COUNTERCLAIMED, SEEKING TO
ENFORCE THE CONTRACT AS WRITTEN, AND DEMANDED A JURY TRIAL; THE COMPANY
MOVED TO STRIKE THE DEMAND; THE COURT GRANTED THE MOTION AND SET THE
CASE FOR TRIAL TO THE COURT WITHOUT A JURY.  THE INSURED APPEALED AND
THE COURT OF APPEALS DISMISSED THE APPEAL.  WE AFFIRMED, HOLDING THAT
THE ENELOW RULE DID NOT APPLY; THAT SINCE THIS WAS AN EQUITABLE
PROCEEDING WITH A COUNTERCLAIM TO ENFORCE THE POLICY, THE DECISION TO
HEAR THE REFORMATION ISSUE FIRST WITHOUT A JURY WAS ONLY A DECISION AS
TO HOW TO TRY THE CASE, AND THEREFORE WAS NOT AN INTERLOCUTORY ORDER IN
THE NATURE OF AN INJUNCTION.  TO THE ARGUMENT THAT THE IMPORTANCE OF A
JURY TRIAL JUSTIFIED TREATING THE ORDER OF TRIAL AS AN INTERLOCUTORY
INJUNCTION, WE ANSWERED: 

"MANY INTERLOCUTORY ORDERS ARE EQUALLY IMPORTANT, AND MAY DETERMINE
THE OUTCOME OF THE LITIGATION, BUT THEY ARE NOT FOR THAT REASON
CONVERTED INTO INJUNCTIONS."  337 U.S., AT 258. 

THE MORGANTOWN CASE CONTROLS HERE.  (FN10)  WHETHER THE DISTRICT
COURT WAS RIGHT OR WRONG IN ITS RULING THAT THE CONTRACT PROVISION DID
NOT REQUIRE ARBITRATION PROCEEDINGS, IT WAS SIMPLY A RULING IN THE ONLY
SUIT PENDING, ACTUAL OR FICTIONAL.  IT WAS A MERE ORDER AND NOT AN
INJUNCTION AS THAT WORD IS UNDERSTOOD THROUGH THE ENELOW AND THE
ETTELSON CASES AS A STAY THROUGH EQUITABLE PRINCIPLES OF A COMMON-LAW
ACTION.  THIS PRESENT CASE IS TO BE DISTINGUISHED FROM THE SHANFEROKE
CASE, SUPRA, NOTE 5, IN THE SAME WAY.  THERE IN A COMMON-LAW ACTION A
MOTION FOR AN INTERLOCUTORY INJUNCTION ON AN EQUITABLE DEFENSE WAS
REFUSED.  THE ORDER WAS APPEALABLE UNDER JUDICIAL CODE SEC. 129.  THIS
COURT SAID: 

"FOR THE REASONS STATED IN ENELOW V. NEW YORK LIFE INS. CO., DECIDED
THIS DAY, ANTE, P. 379, AN ORDER GRANTING OR DENYING A STAY BASED ON AN
EQUITABLE DEFENSE OR CROSS-BILL INTERPOSED IN AN ACTION AT LAW UNDER
SEC. 274B, IS APPEALABLE UNDER SEC. 129."  293 U.S., AT 452. 

THE RELIANCE ON THE ANALOGY OF EQUITY POWER TO ENJOIN PROCEEDINGS IN
OTHER COURTS HAS ELEMENTS OF FICTION IN THIS DAY OF ONE FORM OF
ACTION.  THE INCONGRUITY OF TAKING JURISDICTION FROM A STAY IN A LAW
TYPE AND DENYING JURISDICTION IN AN EQUITY TYPE PROCEEDING SPRINGS FROM
THE PERSISTENCE OF OUTMODED PROCEDURAL DIFFERENTIATIONS.  SOME
SIMPLIFICATION WOULD FOLLOW FROM AN ASSUMPTION OR DENIAL OF
JURISDICTION IN BOTH.  THE DISTINCTION HAS BEEN APPLIED FOR YEARS,
HOWEVER, AND WE CONCLUDE THAT IT IS BETTER JUDICIAL PRACTICE TO FOLLOW
THE PRECEDENTS WHICH LIMIT APPEALABILITY OF INTERLOCUTORY ORDERS,
LEAVING CONGRESS TO MAKE SUCH AMENDMENTS AS IT MAY FIND PROPER. 

IT IS DIFFICULT TO GENERALIZE AS TO WHETHER INTERLOCUTORY APPEALS ARE
OR ARE NOT ADVANTAGEOUS TO AN EFFICIENT ADMINISTRATION OF JUSTICE.  A
COMPROMISE HAS BEEN WORKED OUT BY CONGRESS THROUGH SEC. 1292.  BUT THAT
COMPROMISE DOES NOT AUTHORIZE APPEALS TO SIMPLIFY LITIGATION.  THIS
RULING WAS A STEP IN CONTROLLING THE LITIGATION BEFORE THE TRIAL COURT,
NOT THE REFUSAL OF AN INTERLOCUTORY INJUNCTION.  AFFIRMED. 

FN1  THE HUDSON LUMBER CO. CASE WAS A SUIT FOR A DECLARATORY JUDGMENT
AS TO THE MEANING OF CERTAIN CONTRACT PROVISIONS WITH A PRAYER FOR
INCIDENTAL INJUNCTIVE RELIEF.  APPEAL WAS ALLOWED BY THE COURT OF
APPEALS FROM THE DISTRICT COURT ORDER STAYING THE TRIAL PENDING RESORT
TO ARBITRATION AS REQUIRED BY THE CONTRACT. 

FN2  SEE CATLIN V. UNITED STATES, 324 U.S. 229, 233-234; UNITED
STATES V. BAILEY, 9 PET. 238, 273. 

FN3  THIS ENLARGED THE ENGLISH RULE FOR THERE INTERLOCUTORY APPEALS
WERE ALLOWED IN EQUITY, ALTHOUGH NOT AT COMMON LAW.  1 HOLDSWORTH'S
HISTORY OF ENGLISH LAW 214; CRICK, THE FINAL JUDGMENT AS A BASIS FOR
APPEAL, 41 YALE L. J. 539, 540-548, 551.  SECTION 22 WAS RIGOROUSLY
ENFORCED.  RUTHERFORD V. FISHER, 4 DALL.  22; YOUNG V. GRUNDY, 6 CRANCH
51.  FRAGMENTARY APPEALS WERE DENOUNCED.   CANTER V. AMERICAN INS. CO.,
3 PET. 307, 318; UNITED STATES V. BAILEY, 9 PET. 238, 273. 

FN4  28 U.S.C. SEC. 1291: 

"THE COURTS OF APPEALS SHALL HAVE JURISDICTION OF APPEALS FROM ALL
FINAL DECISIONS OF THE DISTRICT COURTS OF THE UNITED STATES, THE
DISTRICT COURT FOR THE TERRITORY OF ALASKA, THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF THE CANAL ZONE, THE DISTRICT COURT OF GUAM,
AND THE DISTRICT COURT OF THE VIRGIN ISLANDS, EXCEPT WHERE A DIRECT
REVIEW MAY BE HAD IN THE SUPREME COURT." 

THE STATUTORY LIMITATION OF APPEALS TO FINAL DECISIONS, I.E.,
JUDGMENTS AND DECREES, EX PARTE TIFFANY, 252 U.S. 32, 36, HAS CALLED
FOR DETERMINATIONS OF THE CHARACTERISTICS OF FINALITY.  STACK V. BOYLE,
342 U.S. 1, 6; ROBERTS V. U.S. DISTRICT COURT, 339 U.S. 844, 845; SWIFT
& CO. V. COMPANIA CARIBE, 339 U.S. 684, 688; COHEN V. BENEFICIAL LOAN
CORP., 337 U.S. 541, 546; COGEN V. UNITED STATES, 278 U.S. 221.  CF.
BANDINI CO. V. SUPERIOR COURT, 284 U.S. 8, 14-15; RADIO STATION WOW V.
JOHNSON, 326 U.S. 120, 124; MONTGOMERY UNION V. LEDBETTER CO., 344 U.S.
178.  SEE UNDERWOOD, APPEALS IN THE FEDERAL PRACTICE FROM COLLATERAL
ORDERS, 36 VA. L. REV. 731.    THE CONCEPT OF FINALITY DOES NOT REQUIRE
A JUDGMENT COMPLETELY DISPOSING OF EVERY MATTER OR ISSUE THAT ARISES IN
THE LITIGATION.  SOME COLLATERAL ISSUES MAY BECOME "SO SEVERED  ...  AS
TO PERMIT AN APPEAL."  COBBLEDICK V. UNITED STATES, 309 U.S. 323, 328. 

FN5  SHANFEROKE CORP. V. WESTCHESTER CORP., 293 U.S. 449, WAS A SUIT
AT COMMON LAW TO RECOVER DAMAGES FOR BREACH OF A CONTRACT CONTAINING AN
ARBITRATION CLAUSE.  A MOTION WAS MADE TO STAY THE SUIT UNTIL
ARBITRATION.  THE MOTION WAS DENIED BECAUSE THE TRIAL COURT THOUGHT THE
ARBITRATION CLAUSE APPLICABLE ONLY TO NEW YORK LITIGATION.  THIS COURT
HELD THAT THE ORDER WAS INTERLOCUTORY AND WAS APPEALABLE UNDER SEC. 129
OF THE JUDICIAL CODE OF 1911, THE PREDECESSOR OF 28 U.S.C. SEC.
1292(1).  THE RULING FOLLOWED ENELOW V. NEW YORK LIFE INS. CO., INFRA,
P. 182. 

WILKO V. SWAN, 201 F.2D 439, REVERSED ON ISSUES NOT PERTINENT HERE,
346 U.S. 427, WAS A SUIT FOR STATUTORY DAMAGES.  IT ALLOWED AN APPEAL
UNDER 28 U.S.C. SEC. 1292 TO THE COURT OF APPEALS FROM A DISTRICT COURT
INTERLOCUTORY ORDER REFUSING TO STAY SOUGHT PURSUANT TO THE UNITED
STATES ARBITRATION ACT, 9 U.S.C. SEC. 3.  THE SHANFEROKE CASE WAS
CITED. 

FN6  IN 1895, SEC. 7 WAS AMENDED TO PERMIT AN APPEAL FROM
INTERLOCUTORY ORDERS REFUSING OR DISSOLVING INJUNCTIONS, OR REFUSING TO
DISSOLVE AN INJUNCTION.  28 STAT. 666.  A FURTHER AMENDMENT WAS MADE IN
1900 TO INCLUDE CERTAIN ORDERS IN RECEIVERSHIPS.  31 STAT. 660.  THIS
AMENDMENT HAD THE EFFECT OF REPEALING THE 1895 PROVISION WHICH WAS
RESTORED IN SEC. 129 OF THE JUDICIAL CODE OF 1911.  36 STAT. 1087,
1134.  SEE FRANKFURTER AND LANDIS, THE BUSINESS OF THE SUPREME COURT,
124-127.  THE AMENDMENT OF 1925, 43 STAT. 937, MADE TWO CHANGES: FIRST,
IT EMBRACED ORDERS MODIFYING OR REFUSING TO MODIFY INJUNCTIONS AND
EXPANDED THE NUMBER OF ORDERS IN RECEIVERSHIPS WHICH WERE APPEALABLE. 
SECOND, IT DROPPED THE WORDS "IN EQUITY" FROM THE PHRASE "WHERE UPON A
HEARING IN EQUITY IN A DISTRICT COURT" WHICH HAD BEEN EMPLOYED SINCE
THE INITIAL ENACTMENT OF SEC. 7 IN 1891.  NO CHANGE WAS INTENDED BY
THAT OMISSION.  SCHOENAMSGRUBER V. HAMBURG LINE, 294 U.S. 454, 457, N.
3.  IN 1927, PROVISION WAS MADE FOR INTERLOCUTORY APPEALS IN PATENT
CASES WHICH ARE FINAL SAVE FOR AN ACCOUNTING, 44 STAT. 1261. 
INTERLOCUTORY APPEALS IN BANKRUPTCY CASES ARE COVERED BY SEC. 24 OF THE
BANKRUPTCY ACT, 11 U.S.C. SEC. 47. 

COMPARE FED. RULES CIV. PROC., 54(B), AND SEE DICKINSON V. PETROLEUM
CONVERSION CORP., 338 U.S. 507. 

FN7  STATUTORY PROVISIONS FOR INTERLOCUTORY APPEALS HAVE BEEN ENACTED
IN GREAT BRITAIN.  SEE THE JUDICATURE ACT OF 1925, LAW REPORTS 1925(2),
15 & 16 GEO. V, C. 49, SEC. 31; 19 HALSBURY'S LAWS OF ENGLAND (2D ED.) 
209. 

FN8  SEE HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM, NOTE ON RULE 54(B) AND REVIEW OF INTERLOCUTORY ORDERS, 1344;
PROPOSALS FOR INTERLOCUTORY APPEALS, 58 YALE L.J. 1186.  SEE REPORT OF
THE PROCEEDINGS OF THE ANNUAL MEETING OF THE JUDICIAL CONFERENCE OF THE
UNITED STATES FOR SEPT. 24-25, 1953, P. 27, REPORT OF COMMITTEE ON
ENLARGEMENT OF SCOPE OF APPEALS FROM INTERLOCUTORY ORDERS, WITH
PROPOSED AMENDMENT TO SEC. 1292.  THIS WAS TRANSMITTED TO CONGRESS, 100
CONG. REC. 1079 AND 1168. 

FN9  CF. SCHOENAMSGRUBER V. HAMBURG LINE, 294 U.S. 454, 457, WHERE A
STAY IN ADMIRALTY FOR ARBITRATION WAS HELD NOT APPEALABLE AS AN
INJUNCTION BUT ONLY AN ORDER AS TO THE COURSE OF TRIAL. 

FN10  CF. MOORE'S COMMENTARY ON THE U.S. JUDICIAL CODE, 492. 

MR. JUSTICE BURTON CONCURS IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

I THINK THE DISTRICT COURT'S ORDER DENYING A STAY IS APPEALABLE
BECAUSE IT IS (1) "FINAL" WITHIN THE MEANING OF 28 U.S.C. SEC. 1291 AND
(2) A REFUSAL TO GRANT AN INTERLOCUTORY INJUNCTION WITHIN THE MEANING
OF SEC. 1292.  AS THE COURT ADMITS, A COLLATERAL ISSUE MAY BE SO
SEVERABLE AND UNRELATED TO CENTRAL TRIAL ISSUES THAT A JUDGMENT ON THE
COLLATERAL ISSUE IS CONSIDERED "FINAL" AND APPEALABLE UNDER SEC. 1291,
EVEN THOUGH OTHER IMPORTANT ISSUES ARE LEFT UNDECIDED.  GIVEN THIS
COMMON SENSE MEANING SEC. 1291 AUTHORIZES THE PRESENT APPEAL.  FOR
CERTAINLY DECISION OF WHETHER A JUDICIAL RATHER THAN AN ARBITRATION
TRIBUNAL SHALL HEAR AND DETERMINE THIS ACCOUNTING CONTROVERSY IS
LOGICALLY AND PRACTICALLY SEVERABLE FROM THE FACTUAL AND LEGAL ISSUES
CRUCIAL TO DETERMINATION OF THE MERITS OF THE CONTROVERSY.  AND THIS
COURT HAS HELD THAT SEC. 1292 MAKES ALL STAY ORDERS APPEALABLE THAT
HAVE THE SUBSTANTIAL EFFECT OF INTERLOCUTORY INJUNCTION ORDERS. 
ETTELSON V. METROPOLITAN INS. CO., 317 U.S. 188.  THE REFUSAL TO STAY
HERE HAD THAT EFFECT.  INDEED, THE COURT SEEMS TO ADMIT THAT THIS ORDER
REFUSING A STAY WOULD BE APPEALABLE HAD IT BEEN ENTERED BY ANOTHER
JUDGE NOT PRESIDING IN THIS PARTICULAR CASE.  I AGREE WITH THE COURT
THAT THIS JURISDICTIONAL "INCONGRUITY  ...  SPRINGS FROM THE
PERSISTENCE OF OUTMODED PROCEDURAL DIFFERENTIATIONS" THAT HAVE
"ELEMENTS OF FICTION" IN THIS MODERN DAY.  I DO NOT AGREE THAT THE
COURT'S OBEISANCE TO THESE INCONGRUOUS FICTIONS IS REQUIRED BY
CONGRESSIONAL ENACTMENTS. 

THE COURT RELIES ON A PURPOSE OF CONGRESS TO AVOID A WASTE OF TIME
AND MONEY INCIDENT TO REPEATED "PIECEMEAL" APPEALS IN THE SAME SUIT. 
BUT, AS POINTED OUT, CONGRESS, IN SECS.  1291 AND 1292, HAS LEFT THE
WAY OPEN FOR THE APPEAL OF MANY JUDGMENTS FINALLY DECIDING COLLATERAL
AND SEVERABLE ISSUES SEPARATELY ADJUDICATED IN A CASE.  ANY RIGID RULE
TO THE CONTRARY WOULD ITSELF GUARANTEE USELESS DELAYS AND EXPENSES. 
FOR TWO TRIALS, ONE UNNECESSARY, MAY TAKE LONGER AND COST MORE THAN TWO
APPEALS WHERE ONE WOULD DO.  TAKE THIS CASE FOR EXAMPLE.  IT MUST NOW
GO BACK FOR A COURT ACCOUNTING TRIAL WHICH COULD BE TIME-CONSUMING AND
EXPENSIVE TO LITIGANTS AND TO THE GOVERNMENT.  AND SHOULD PETITIONER
LOSE ON THE MERITS IT COULD UNDOUBTEDLY APPEAL.  ON THAT REVIEW THE
FIRST QUESTION FOR THE APPELLATE COURT WOULD BE WHETHER THE ORDER
DENYING ARBITRATION, WHICH THE COURT NOW REFUSES TO CONSIDER, WAS RIGHT
OR WRONG.  IF FOUND WRONG, THE TRIAL COURT'S JUDGMENT ON THE MERITS
WOULD HAVE TO BE VACATED AND THE CASE AGAIN SENT BACK FOR DETERMINATION
ON THE MERITS - THIS TIME BY ARBITRATION.  IN THAT EVENT THE TRIAL THE
COURT NOW ORDERS WILL HAVE BEEN WHOLLY FUTILE - NOT EVEN THE LITIGANT
WHO NOW APPEARS TO BE SUCCESSFUL WILL HAVE GAINED ANYTHING FROM IT,
UNLESS PERCHANCE HE STANDS TO PROFIT FROM DELAY.  THERE IS SOME
DIFFICULTY, AT LEAST, IN LAYING THIS WASTEFUL PROCEDURE AT THE DOOR OF
CONGRESS. 
..END :






COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF STERNBERGER, CHASE
NATIONAL BANK OF NEW YORK, EXECUTOR 348 U.S. 187 


NO. 24.  ARGUED OCTOBER 19-20, 1954 - DECIDED JANUARY 10, 1955 - 207
F.2D 600, REVERSED. 


IN DETERMINING A NET ESTATE FOR FEDERAL ESTATE TAX PURPOSES, A
DEDUCTION MAY NOT BE MADE UNDER SEC. 812(D) OF THE INTERNAL REVENUE
CODE ON ACCOUNT OF A CHARITABLE BEQUEST THAT IS TO TAKE EFFECT ONLY IF
DECEDENT'S CHILDLESS 27-YEAR OLD DAUGHTER DIES WITHOUT DESCENDANTS
SURVIVING HER AND HER MOTHER.  HUMES V. UNITED STATES, 276 U.S. 487. 
PP.  187-200. 

(A)  SECTION 81.44 OF TREASURY REGULATIONS 105 DOES NOT AUTHORIZE THE
DEDUCTION HERE CLAIMED, AND SEC. 81.46 PROHIBITS IT.  PP. 190-199. 

(B)  THERE IS NO STATUTORY AUTHORITY FOR THE DEDUCTION FROM A GROSS
ESTATE OF ANY PERCENTAGE OF A CONDITIONAL BEQUEST TO CHARITY WHERE
THERE IS NO ASSURANCE THAT CHARITY WILL RECEIVE THE BEQUEST OR SOME
DETERMINABLE PART OF IT.  P. 199. 

COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF STERNBERGER, CHASE
NATIONAL BANK OF NEW YORK, EXECUTOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS WHETHER, IN DETERMINING A NET ESTATE FOR FEDERAL
ESTATE TAX PURPOSES, A DEDUCTION MAY BE MADE ON ACCOUNT OF A CHARITABLE
BEQUEST THAT IS TO TAKE EFFECT ONLY IF DECEDENT'S CHILDLESS 27-YEAR-OLD
DAUGHTER DIES WITHOUT DESCENDANTS SURVIVING HER AND HER MOTHER.  FOR
THE REASONS HEREAFTER STATED, WE HOLD THAT IT MAY NOT. 

LOUIS STERNBERGER DIED TESTATE JUNE 25, 1947.  HIS FEDERAL ESTATE TAX
RETURN DISCLOSES A GROSS ESTATE OF $2,406,541.71 AND, FOR THE
ADDITIONAL ESTATE TAX, A NET ESTATE OF $2,064,346.55.  IT INCLUDES
ASSETS OWNED BY HIM AT HIS DEATH AND OTHERS HELD BY THE CHASE NATIONAL
BANK, RESPONDENT HEREIN, UNDER A REVOCABLE TRUST CREATED BY HIM.  AS
THE REVOCABLE TRUST MAKES PROVISIONS FOR CHARITY THAT ARE, FOR OUR
PURPOSES, IDENTICAL WITH THOSE IN THE WILL, THIS OPINION APPLIES TO
BOTH DISPOSITIONS. 

THE WILL PLACES THE RESIDUARY ESTATE IN TRUST DURING THE JOINT LIVES
OF DECEDENT'S WIFE AND DAUGHTER AND FOR THE LIFE OF THE SURVIVOR OF
THEM.  UPON THE DEATH OF SUCH SURVIVOR, THE PRINCIPAL OF THE TRUST FUND
IS PAYABLE TO THE THEN LIVING DESCENDANTS OF THE DAUGHTER.  HOWEVER, IF
THERE ARE NO SUCH DESCENDANTS, ONE-HALF OF THE RESIDUE GOES TO CERTAIN
COLLATERAL RELATIVES OF DECEDENT AND THE OTHER HALF TO CERTAIN
CHARITABLE CORPORATIONS.  IF NONE OF THE DESIGNATED RELATIVES ARE
LIVING, THE ENTIRE RESIDUE GOES TO THE CHARITABLE CORPORATIONS.  (FN1) 

AT DECEDENT'S DEATH, HIS WIFE AND DAUGHTER SURVIVED HIM.  HIS WIFE
WAS THEN 62 AND HIS DAUGHTER 27.  THE LATTER MARRIED IN 1942, WAS
DIVORCED IN 1944, HAD NOT REMARRIED AND HAD NOT HAD A CHILD. 

IN THE ESTATE TAX RETURN, DECEDENT'S EXECUTOR, RESPONDENT HEREIN,
DEDUCTED $179,154.19 FROM THE GROSS ESTATE AS THE PRESENT VALUE OF THE
CONDITIONAL BEQUEST TO CHARITY OF ONE-HALF OF THE RESIDUE.  RESPONDENT
CLAIMED NO DEDUCTION FOR THE MORE REMOTE CHARITABLE BEQUEST OF THE
OTHER HALF OT THE RESIDUE.  THE COMMISSIONER OF INTERNAL REVENUE
DISALLOWED THE DEDUCTION AND DETERMINED A TAX DEFICIENCY ON THAT
GROUND.  THE TAX COURT REVERSED THE COMMISSIONER.  18 T.C. 836.  THE
COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED THE TAX COURT, 207
F.2D 600, ON THE AUTHORITY OF MEIERHOF V. HIGGINS, 129 F.2D 1002.  TO
RESOLVE THE RESULTING CONFLICT WITH THE COURT OF APPEALS FOR THE FIRST
CIRCUIT IN NEWTON TRUST CO. V. COMMISSIONER, 160 F.2D 175, WE GRANTED
CERTIORARI, 347 U.S. 932. 

THE CONTROLLING PROVISIONS OF THE REVENUE CODE ARE IN SUBSTANTIALLY
THE SAME TERMS AS WHEN THEY WERE FIRST ENACTED IN 1919 (FN2) AND ARE AS
FOLLOWS: 

"SEC. 812.  NET ESTATE. 

"FOR THE PURPOSE OF THE TAX THE VALUE OF THE NET ESTATE SHALL BE
DETERMINED  ...  BY DEDUCTING FROM THE VALUE OF THE GROSS ESTATE: 

     *         *         *        *         * 

"(D)  TRANSFERS FOR PUBLIC, CHARITABLE, AND RELIGIOUS USES.  - THE
AMOUNT OF ALL BEQUESTS, LEGACIES, DEVISES, OR TRANSFERS  ...  TO OR FOR
THE USE OF ANY CORPORATION ORGANIZED AND OPERATED EXCLUSIVELY FOR
RELIGIOUS, CHARITABLE, SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES
...  ."  I.R.C. 

THE COMMISSIONER CONCEDES THAT THE CORPORATIONS NAMED IN THE WILL
QUALIFY AS CHARITABLE CORPORATIONS UNDER THE STATUTE.  THERE IS NO
DOUBT, THEREFORE, THAT IF THE BEQUEST TO THEM HAD BEEN IMMEDIATE AND
UNCONDITIONAL, ITS VALUE WOULD BE DEDUCTIBLE.  THE QUESTION BEFORE US
IS WHAT, IF ANY, CHARITABLE DEDUCTION MAY BE MADE DESPITE (1) THE
DEFERMENT OF THE EFFECTIVE DATE OF THE CHARITABLE BEQUEST UNTIL THE
DEATHS OF BOTH DECEDENT'S WIFE AND DAUGHTER AND (2) THE CONDITIONING OF
THE BEQUEST UPON A LACK OF DESCENDANTS OF DECEDENT'S DAUGHTER SURVIVING
AT THAT TIME.  WE FIND THE ANSWER IN THE TREASURY REGULATIONS, WHICH
ARE OF LONG STANDING AND STRENGTHENED BY REENACTMENTS OF I.R.C., SEC.
812(D), SINCE THEIR PROMULGATION.  (FN3) 

1.  SECTION 81.44 OF TREASURY REGULATIONS 105 WOULD PERMIT THE
DEDUCTION OF THE PRESENT VALUE OF THE BEQUEST IF IT WERE AN OUTRIGHT
BEQUEST, MERELY DEFERRED UNTIL THE DEATHS OF DECEDENT'S WIFE AND
DAUGHTER. 

IN THEIR EARLIEST FORM, THE PREDECESSORS OF THESE REGULATIONS, IN
1919, RECOGNIZED, IN PLAIN LANGUAGE, THE PROPRIETY OF THE DEDUCTION OF
THE PRESENT VALUE OF A DEFERRED, BUT ASSURED, BEQUEST TO CHARITY. 
(FN4)  SECTION 81.44(D) OF TREASURY REGULATIONS 105 DOES SO WITH
INESCAPABLE SPECIFICITY: 

"SEC.  81.44 TRANSFERS FOR PUBLIC, CHARITABLE, RELIGIOUS, ETC., USES
...  . 

     *         *         *         *         * 

"(D) IF A TRUST IS CREATED FOR BOTH A CHARITABLE AND A PRIVATE
PURPOSE, DEDUCTION MAY BE TAKEN OF THE VALUE OF THE BENEFICIAL INTEREST
IN FAVOR OF THE FORMER ONLY INSOFAR AS SUCH INTEREST IS PRESENTLY
ASCERTAINABLE, AND HENCE SEVERABLE FROM THE INTEREST IN FAVOR OF THE
PRIVATE USE.  SEC. 81.10 INDICATES THE PRINCIPLES TO BE APPLIED IN THE
COMPUTATION OF THE PRESENT WORTH OF DEFERRED USES, BUT SUCH COMPUTATION
WILL NOT BE MADE BY THE COMMISSIONER ON BEHALF OF THE EXECUTOR.  THUS,
IF MONEY OR PROPERTY IS PLACED IN TRUST TO PAY THE INCOME TO AN
INDIVIDUAL DURING HIS LIFE, OR FOR A TERM OF YEARS, AND THEN TO PAY OR
DELIVER THE PRINCIPAL TO THE CHARITABLE CORPORATION, OR TO APPLY IT TO
A CHARITABLE PURPOSE, THE PRESENT VALUE OF THE REMAINDER IS
DEDUCTIBLE.  TO DETERMINE THE PRESENT VALUE OF SUCH REMAINDER, USE THE
APPROPRIATE FACTOR IN COLUMN 3 OF TABLE A OR B OF SEC. 81.10.  IF THE
PRESENT WORTH OF A REMAINDER BEQUEATHED FOR A CHARITABLE USE IS
DEPENDENT UPON THE TERMINATION OF MORE THAN ONE LIFE, OR IN ANY OTHER
MANNER RENDERING INAPPLICABLE TABLE A OR B OF SEC. 81.10, THE CLAIM FOR
THE DEDUCTION MUST BE SUPPORTED BY A FULL STATEMENT, IN DUPLICATE, OF
THE COMPUTATION OF THE PRESENT WORTH MADE, IN ACCORDANCE WITH THE
PRINCIPLE SET FORTH IN SEC. 81.10, BY ONE SKILLED IN ACTUARIAL
COMPUTATIONS."  26 CFR. 

THE VERY EXPLICITNESS OF THE ABOVE PROVISIONS EMPHASIZES THEIR
RESTRICTION TO "THE COMPUTATION OF THE PRESENT WORTH" OF ASSURED
BEQUESTS SUCH AS ARE THE SUBJECT OF EACH OF THE ILLUSTRATIONS AND CROSS
REFERENCES IN THE SECTION.  THE STATUTE RESTRICTS CHARITABLE DEDUCTIONS
TO BEQUESTS TO CORPORATIONS "ORGANIZED AND OPERATED EXCLUSIVELY FOR
...  CHARITABLE  ...  PURPOSES."  (FN5) LIKEWISE, THE ABOVE SECTION OF
THE REGULATIONS REQUIRES THAT THE DEDUCTIBLE VALUE OF "THE BENEFICIAL
INTEREST IN FAVOR OF" THE DESIGNATED CHARITABLE PURPOSE BE "SEVERABLE
FROM THE INTEREST IN FAVOR OF THE PRIVATE USE."  THERE IS NO SUGGESTION
IN THE STATUTE OR IN SEC. 81.44 OF A DEDUCTION OF FUNDS OTHER THAN
THOSE LATER TO BE USED EXCLUSIVELY FOR CHARITABLE PURPOSES. 

2.  SECTION 81.46 OF TREASURY REGULATIONS 105 PERMITS NO DEDUCTION
FOR A CONDITIONAL BEQUEST TO CHARITY "UNLESS THE POSSIBILITY THAT
CHARITY WILL NOT TAKE IS SO REMOTE AS TO BE NEGLIGIBLE." 

HERE ALSO, THE REGULATIONS IN THEIR EARLIEST FORM, IN 1919, WERE
UNEQUIVOCALLY RESTRICTIVE.  (FN6)  IT WAS ONLY AFTER COURT DECISIONS
HAD DEMONSTRATED THE NEED FOR DOING SO (FN7) THAT THE RESTRICTIONS WERE
RESTATED SO AS EXPRESSLY TO PERMIT DEDUCTIONS OF BEQUESTS ASSURED IN
FACT BUT CONDITIONAL IN FORM. 

FOR A CONDITIONAL BEQUEST TO CHARITY "UNLESS THE POSSIBILITY THAT
CHARITY WILL NOT TAKE IS SO REMOTE AS TO BE NEGLIGIBLE."  THE WHOLE

"SEC. 81.46 CONDITIONAL BEQUESTS.  (A)  IF AS OF THE DATE OF
DECEDENT'S DEATH THE TRANSFER TO CHARITY IS DEPENDENT UPON THE
PERFORMANCE OF SOME ACT OR THE HAPPENING OF A PRECEDENT EVENT IN ORDER
THAT IT MIGHT BECOME EFFECTIVE, NO DEDUCTION IS ALLOWABLE UNLESS THE
POSSIBILITY THAT CHARITY WILL NOT TAKE IS SO REMOTE AS TO BE
NEGLIGIBLE.  IF AN ESTATE OR INTEREST HAS PASSED TO OR IS VESTED IN
CHARITY AT THE TIME OF DECEDENT'S DEATH AND SUCH RIGHT OR INTEREST
WOULD BE DEFEATED BY THE PERFORMANCE OF SOME ACT OR THE HAPPENING OF
SOME EVENT WHICH APPEARED TO HAVE BEEN HIGHLY IMPROBABLE AT THE TIME OF
DECEDENT'S DEATH, THE DEDUCTION IS ALLOWABLE. 

"(B)  IF THE LEGATEE, DEVISEE, DONEE, OR TRUSTEE IS EMPOWERED TO
DIVERT THE PROPERTY OR FUND, IN WHOLE OR IN PART, TO A USE OR PURPOSE
WHICH WOULD HAVE RENDERED IT, TO THE EXTENT THAT IT IS SUBJECT TO SUCH
POWER, NOT DEDUCTIBLE HAD IT BEEN DIRECTLY SO BEQUEATHED, DEVISED, OR
GIVEN BY THE DECEDENT, DEDUCTION WILL BE LIMITED TO THAT PORTION, IF
ANY, OF THE PROPERTY OR FUND WHICH IS EXEMPT FROM AN EXERCISE OF SUCH
POWER."  26 CFR. 

THEIR EARLY FORMS THEY WERE OBVIOUSLY MUTUALLY EXCLUSIVE AND EASILY
RECONCILABLE.  THE PREDECESSOR OF SEC.  81.46 CONFINED CHARITABLE
DEDUCTIONS TO OUTRIGHT, UNCONDITIONAL BEQUESTS TO CHARITY.  IT
EXPRESSLY EXCLUDED DEDUCTIONS FOR CHARITABLE BEQUESTS THAT WERE SUBJECT
TO CONDITIONS, EITHER PRECEDENT OR SUBSEQUENT.  WHILE IT ENCOURAGED
ASSURED BEQUESTS TO CHARITY, IT OFFERED NO DEDUCTIONS FOR BEQUESTS THAT
MIGHT NEVER REACH CHARITY.  SUBSEQUENT AMENDMENTS HAVE CLARIFIED AND
NOT CHANGED THAT PRINCIPLE.  SECTION 81.46(A) TODAY YIELDS TO NO
CONDITION UNLESS THE POSSIBILITY THAT CHARITY WILL NOT TAKE IS
"NEGLIGIBLE" OR "HIGHLY IMPROBABLE."  SECTION 81.46(B) IS EQUALLY
STRICT.  IT RELATES TO PROVISIONS WHEREBY FUNDS MAY BE DIVERTED IN
WHOLE OR IN PART TO NON-CHARITABLE USES, AND IT LIMITS THE TAX
DEDUCTION TO THAT PORTION OF EACH FUND THAT CANNOT BE SO DIVERTED. 
WHERE THE PRINCIPAL OF A BEQUEST TO CHARITY THUS MAY BE INVADED FOR
PRIVATE PURPOSES, IT IS ONLY THE ASCERTAINABLE AND ASSURED BALANCE OF
THE BEQUEST TO CHARITY THAT IS RECOGNIZED FOR A TAX DEDUCTION. 

RESPONDENT CONCEDES THAT THE CHANCE THAT CHARITY WILL NOT TAKE IS
MUCH MORE THAN NEGLIGIBLE.  THEREFORE, IF SEC. 81.46(A) APPLIES TO THE
INSTANT CASE, NO CHARITABLE DEDUCTION IS PERMISSIBLE. 

RESPONDENT CLAIMS, HOWEVER, THAT SEC. 81.44 COVERS THIS CASE.  IN
DOING SO, IT READS SECS. 81.44 AND 81.46 TOGETHER AND, INSTEAD OF
CONFINING THEM TO THEIR MUTUALLY EXCLUSIVE SUBJECTS, MAKES THEM
OVERLAP.  IT APPLIES SEC. 81.44 TO SOME DEFERRED CONDITIONAL BEQUESTS. 
IT DOES SO IN ANY CASE WHERE IT CAN COMPUTE, ON APPROVED ACTUARIAL
STANDARDS, THE DEGREE OF POSSIBILITY THAT CHARITY WILL RECEIVE THE
CONDITIONAL BEQUEST.  RESPONDENT THEN COMPUTES THE PRESENT VALUE OF A
CORRESPONDING PERCENTAGE OF THE ENTIRE DEFERRED BEQUEST.  IN SHORT,
RESPONDENT CLAIMS AN IMMEDIATE TAX DEDUCTION EQUAL TO THE PRESENT VALUE
OF WHATEVER FRACTION OF THE BEQUEST CORRESPONDS, ACTUARIALLY, TO THE
CHANCE THAT CHARITY MAY BENEFIT FROM IT. 

THIS COURT CONSIDERED A SOMEWHAT COMPARABLE PROPOSAL IN 1928.  IN
HUMES V. UNITED STATES, 276 U.S. 487, A TAXPAYER SOUGHT A CHARITABLE
DEDUCTION BASED ON A BEQUEST TO CHARITY THAT WAS CONDITIONAL UPON THE
DEATH OF DECEDENT'S 15-YEAR-OLD NIECE, WITHOUT ISSUE, BEFORE REACHING
THE AGE OF 40.  TO SUSTAIN THE PROPOSAL, THE TAXPAYER SOUGHT TO
ESTABLISH ACTUARIALLY A MEASURE OF THE CHANCE THAT CHARITY WOULD
RECEIVE THE BEQUEST AND TO FIND AUTHORITY IN THE REVENUE CODE FOR THE
DEDUCTION OF THE PRESENT VALUE OF A CORRESPONDING PERCENTAGE OF THE
BEQUEST.  SPEAKING THROUGH MR. JUSTICE BRANDEIS, THIS COURT FOUND THE
ACTUARIAL COMPUTATION INADEQUATE.  IT, HOWEVER, DID NOT DROP THE MATTER
THERE.  IT MADE THE FOLLOWING STATEMENT: 

"ONE MAY GUESS, OR GAMBLE ON, OR EVEN INSURE AGAINST, ANY FUTURE
EVENT.  THE SOLICITOR GENERAL TELLS US THAT LLOYDS OF LONDON WILL
INSURE AGAINST HAVING TWINS.  BUT THE FUNDAMENTAL QUESTION IN THE CASE
AT BAR, IS NOT WHETHER THIS CONTINGENT INTEREST CAN BE INSURED AGAINST
OR ITS VALUE GUESSED AT, BUT WHAT CONSTRUCTION SHALL BE GIVEN TO A
STATUTE.  DID CONGRESS IN PROVIDING FOR THE DETERMINATION OF THE NET
ESTATE TAXABLE, INTEND THAT A DEDUCTION SHOULD BE MADE FOR A
CONTINGENCY, THE ACTUAL VALUE OF WHICH CANNOT BE DETERMINED FROM ANY
KNOWN DATA?  NEITHER TAXPAYER, NOR REVENUE OFFICER - EVEN IF EQUIPPED
WITH ALL THE AID WHICH THE ACTUARIAL ART CAN SUPPLY - COULD DO MORE
THAN GUESS AT THE VALUE OF THIS CONTINGENCY.  IT IS CLEAR THAT CONGRESS
DID NOT INTEND THAT A DEDUCTION SHOULD BE MADE FOR A CONTINGENT GIFT OF
THAT CHARACTER."  ID., AT 494. 

SINCE THE ABOVE WAS WRITTEN, THERE HAVE BEEN ADVANCES IN THE
ACTUARIAL ART. TODAY, ACTUARIAL ESTIMATES ARE EMPLOYED MORE WIDELY THAN
THEY WERE THEN.  THE COMPUTATIONS NOW BEFORE US ILLUSTRATE THAT
ADVANCE.  THEY DO NOT, HOWEVER, LESSEN THE NECESSITY FOR STATUTORY
AUTHORIZATION FOR SUCH A TAX DEDUCTION.  THE SCOPE OF THE AUTHORITY
REQUIRED BY RESPONDENT CAN BEST BE APPRECIATED IF EXAMINED IN THE
REVEALING LIGHT OF THE SPECIFIC CIRCUMSTANCES OF THE PRESENT CASE. 

THE TAX COURT AND THE COURT OF APPEALS HAVE APPROVED RESPONDENT'S
ACTUARIAL COMPUTATIONS AS FAIRLY REFLECTING THE PRESENT VALUE OF ONE
HALF OF THE TWO-MILLION-DOLLAR RESIDUE, REDUCED IN PROPORTION TO THE
CHANCE THAT CHARITY WILL RECEIVE IT.  IN MAKING THIS ESTIMATE,
RESPONDENT HAS COMPUTED THE PRESENT VALUE OF THE DEFERRED BEQUEST ON
THE BASIS OF 4% INTEREST COMPOUNDED ANNUALLY AND HAS USED THE FOLLOWING
ACTUARIAL TABLES:    1.  TO DETERMINE THE JOINT LIFE EXPECTANCY OF
DECEDENT'S WIFE AND DAUGHTER, THE COMBINED EXPERIENCE MORTALITY TABLE
PRESCRIBED IN SEC. 81.10 OF THE ESTATE TAX REGULATIONS. 

2.  TO ESTIMATE THE PROBABILITY OF REMARRIAGE OF THE DAUGHTER, THE
AMERICAN REMARRIAGE TABLE, PUBLISHED BY THE CASUALTY ACTUARIAL
SOCIETY. 

3.  TO ESTIMATE THE CHANCE OF A FIRST CHILD BEING BORN TO DECEDENT'S
DAUGHTER, A SPECIALLY DEVISED TABLE WHICH HAS BEEN FOUND BY THE TAX
COURT TO HAVE BEEN PREPARED IN ACCORDANCE WITH ACCEPTED ACTUARIAL
PRINCIPLES UPON DATA DERIVED FROM STATISTICS PUBLISHED BY THE BUREAU OF
THE CENSUS.  (FN8)

ON THE BASIS OF THESE TABLES, THE TAX COURT FINDS THAT THE PRESENT
VALUE OF THE CHARITABLE REMAINDER AT THE DEATH OF DECEDENT IS .18384 ON
THE DOLLAR IF COMPUTED SOLELY ON THE CHANCES OF HIS DAUGHTER'S
REMARRIAGE; .24094 ON THE DOLLAR IF COMPUTED ON THE CHANCE THAT A
LEGITIMATE DESCENDANT OF HIS DAUGHTER WILL SURVIVE HER; AND .24058 ON
THE DOLLAR IF COMPUTED ON THE CHANCE THAT ANY LEGITIMATE OR
ILLEGITIMATE DESCENDANT OF HIS DAUGHTER WILL SURVIVE HER.  IT IS THIS
LAST ESTIMATE THAT RESPONDENT SEEKS TO APPLY HERE. 

IF RESPONDENT IS SUCCESSFUL, IT MEANS THE ALLOWANCE OF AN IMMEDIATE
AND IRREVOCABLE DEDUCTION OF OVER $175,000 FROM THE GROSS ESTATE OF
DECEDENT, ALTHOUGH RESPONDENT ADMITS THERE IS A REAL POSSIBILITY THAT
CHARITY WILL RECEIVE NOTHING.  THE BEQUEST, IN FACT, OFFERS TO THE
DAUGHTER AN INDUCEMENT OF ABOUT $2,000,000 TO REMARRY AND LEAVE A
DESCENDANT.  TO THE EXTENT THAT THIS INDUCEMENT REDUCES THE ACTUARIALLY
COMPUTED AVERAGE PROBABILITY THAT CHARITY WILL RECEIVE THIS BEQUEST, IT
FURTHER DEMONSTRATES THE INAPPROPRIATENESS OF AUTHORIZING CHARITABLE
TAX DEDUCTIONS BASED UPON HIGHLY CONDITIONAL BEQUESTS TO CHARITY. 

AN EVEN CLEARER ILLUSTRATION OF THE EFFECT OF RESPONDENT'S
INTERPRETATION OF THE CODE READILY SUGGESTS ITSELF.  IF DECEDENT HAD
HERE CONDITIONED HIS BEQUEST TO CHARITY SOLELY ON THE DEATH OF HIS
DAUGHTER BEFORE REMARRIAGE, THE REMARRIAGE TABLE WOULD THEN FIX THE
PRESENT VALUE OF THE CHARITABLE REMAINDER AT .18384 ON THE DOLLAR.  THE
TAXPAYER WOULD AT ONCE RECEIVE A SUBSTANTIAL CHARITABLE DEDUCTION ON
THAT BASIS.  THS DAUGHTER, HOWEVER, WOULD HAVE A $2,000,000 INDUCEMENT
TO REMARRY.  IF SHE DID SO, HER ACTION WOULD CANCEL THE POSSIBILITY
THAT CHARITY WOULD RECEIVE ANYTHING FROM THE BEQUEST, BUT IT WOULD NOT
CANCEL THE TAX DEDUCTION ALREADY ALLOWED TO THE ESTATE.  TO WHATEVER
EXTENT ANY PERSON CAN DEFEAT THE FULFILLMENT OF ANY CONDITION UPON
WHICH A BENEFIT TO CHARITY DEPENDS, TO THAT EXTENT THE ACTUARIAL
ESTIMATE THAT SUCH BENEFIT WILL REACH CHARITY IS LESS DEPENDABLE.  THE
ALLOWANCE OF SUCH A TAX REDUCTION AS IS HERE SOUGHT WOULD OPEN A DOOR
TO EASY ABUSE.  THE RESULT MIGHT WELL BE NOT SO MUCH TO ENCOURAGE GIFTS
INURING TO THE BENEFIT OF CHARITY AS TO ENCOURAGE THE WRITING OF
CONDITIONS INTO BEQUESTS WHICH WOULD ASSURE CHARITABLE TAX DEDUCTIONS
WITHOUT ASSURING BENEFITS TO CHARITY. 

WE FIND NO SUGGESTION OF AUTHORITY FOR SUCH A DEDUCTION IN SEC.
812(D).  THAT SECTION REMAINS SUBSTANTIALLY THE SAME AS IT WAS WHEN
HUMES V. UNITED STATES, SUPRA, 276 U.S. 487, WAS DECIDED.  WE ALSO FIND
NO AUTHORIZATION FOR THE DEDUCTION EITHER IN SEC. 81.46 OR SEC. 81.44
OF THE REGULATIONS, AS THUS FAR DISCUSSED.  THIS RELEGATES RESPONDENT
TO THE FOLLOWING WORDS NOW IN SEC. 81.44(D): 

"IF THE PRESENT WORTH OF A REMAINDER BEQUEATHED FOR A CHARITABLE USE
IS DEPENDENT UPON THE TERMINATION OF MORE THAN ONE LIFE, OR IN ANY
OTHER MANNER RENDERING INAPPLICABLE TABLE A OR B OF SEC. 81.10, THE
CLAIM FOR THE DEDUCTION MUST BE SUPPORTED BY A FULL STATEMENT, IN
DUPLICATE, OF THE COMPUTATION OF THE PRESENT WORTH MADE, IN ACCORDANCE
WITH THE PRINCIPLE SET FORTH IN SEC. 81.10, BY ONE SKILLED IN ACTUARIAL
COMPUTATIONS." 

IN VIEW OF THE STATUTORY EMPHASIS UPON OUTRIGHT BEQUESTS AND THE LONG
STANDING EXCLUSION OF CONDITIONAL BEQUESTS BY SEC. 81.46 OF THE
REGULATIONS (AND ITS PREDECESSORS), WE DO NOT REGARD THE ABOVE SENTENCE
AS NOW INVADING THE DOMAIN OF SEC. 81.46 BY EXTENDING THE DEDUCTION TO
CONDITIONAL BEQUESTS IN A MANNER READILY OPEN TO ABUSE.  WE REGARD THE
SENTENCE AS RESTRICTED TO COMPUTATIONS OF DEFERRED, BUT ASSURED,
BEQUESTS.  SECTION 81.10(I) NOW DEALS AT LENGTH WITH THE VALUATION OF
REMAINDERS AND REVERSIONARY INTERESTS AND GIVES MANY EXAMPLES OF SUCH
COMPUTATIONS.  EVERY EXAMPLE, HOWEVER, IS ONE OF THE VALUATION OF AN
ASSURED BEQUEST.  THE ADDITIONAL LANGUAGE IN SEC. 81.44(D), QUOTED
ABOVE, DOES NOT AUTHORIZE THE DEDUCTION, AND SEC. 81.46 PROHIBITS IT.
SUCH SPECIFIC AND ESTABLISHED ADMINISTRATIVE INTERPRETATION OF THE
STATUTE IS VALID AND "SHOULD NOT BE OVERRULED EXCEPT FOR WEIGHTY
REASONS."  COMMISSIONER V. SOUTH TEXAS CO., 333 U.S. 496, 501. 

THIS COURT HAS NOT SPECIFICALLY FACED THE ISSUE NOW BEFORE US SINCE
HUMES V. UNITED STATES, SUPRA, BUT WE SEE NO REASON TO RETREAT FROM THE
VIEWS THERE STATED.  THIS COURT FINDS NO STATUTORY AUTHORITY FOR THE
DEDUCTION FROM A GROSS ESTATE OF ANY PERCENTAGE OF A CONDITIONAL
BEQUEST TO CHARITY WHERE THERE IS NO ASSURANCE THAT CHARITY WILL
RECEIVE THE BEQUEST OR SOME DETERMINABLE PART OF IT.  WHERE THE AMOUNT
OF A BEQUEST TO CHARITY HAS NOT BEEN DETERMINABLE, THE DEDUCTION
PROPERLY HAS BEEN DENIED.  HENSLEE V. UNION PLANTERS BANK, 335 U.S.
595, 598-600; MERCHANTS BANK V. COMMISSIONER, 320 U.S. 256, 259-263;
AND SEE ROBINETTE V. HELVERING, 318 U.S. 184, 189.  WHERE THE AMOUNT
HAS BEEN DETERMINABLE, THE DEDUCTION HAS, WITH EQUAL PROPRIETY, BEEN
ALLOWED WHERE THE DESIGNATED CHARITY HAS BEEN SURE TO BENEFIT FROM IT.
UNITED STATES V. PROVIDENT TRUST CO., 291 U.S. 272; ITHACA TRUST CO. V.
UNITED STATES, 279 U.S. 151. 

SOME OF THE LOWER COURTS HAVE SQUARELY MET THE INSTANT PROBLEM AND
DENIED THE DEDUCTION.  FOR EXAMPLE, THE DEDUCTION WAS DENIED IN THE
FIRST CIRCUIT WHERE THE COURT FOUND THAT "IT IS NOT CERTAIN THAT THE
CHARITY WILL TAKE 50% OF THE CORPUS; ONLY THAT IT HAS A 50-50 CHANCE OF
GETTING ALL OR NOTHING."  NEWTON TRUST CO. V. COMMISSIONER, 160 F.2D
175, 181.  SEE ALSO, GRAFF V. SMITH, 100 F. SUPP. 42; HOAGLAND V.
KAVANAGH, 36 F. SUPP. 875; WOOD V. UNITED STATES, 20 F. SUPP. 197.  THE
ADMINISTRATIVE PRACTICE, AS EVIDENCED HERE BY THE ACTION OF THE
COMMISSIONER, HAS BEEN TO DENY THE DEDUCTION.  SEE FURTHER, PAUL,
FEDERAL ESTATE AND GIFT TAXATION (1946 SUPP.), 426-427. 

THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS REVERSED AND
THE CAUSE REMANDED FOR ACTION IN CONFIRMITY WITH THIS OPINION. 
REVERSED. 

FN1  THESE PROVISIONS APPEAR MORE FULLY IN ESTATE OF STERNBERGER V.
COMMISSIONER, 18 T.C. 836, 837-838. 

FN2  ORIGINALLY SEC. 403(A)(3) OF THE REVENUE ACT OF 1918, 40 STAT.
1098.  SEE ALSO, GRISWOLD, CASES AND MATERIALS ON FEDERAL TAXATION (3D
ED.), 679 ET SEQ.; 1 PAUL, FEDERAL ESTATE AND GIFT TAXATION, 638 ET
SEQ. 

FN3  ITS LATEST REENACTMENT IS IN SEC. 2055(A) OF THE INTERNAL
REVENUE CODE OF 1954, 68A STAT. 390.  THE PURPOSE OF THE DEDUCTION IS
TO ENCOURAGE GIFTS TO THE NAMED USES.  EDWARDS V. SLOCUM, 264 U.S. 61,
63; 13 GEO. WASH. L. REV. 198, 201; 28 VA. L. REV. 387-388.  LIKE OTHER
TAX DEDUCTIONS, HOWEVER, IT MUST REST ON MORE THAN A DOUBT OR
AMBIGUITY.  SEE UNITED STATES V. STEWART, 311 U.S. 60, 71, AND ALSO
COMMISSIONER V. JACOBSON, 336 U.S. 28, 49. 

I.R.C., SEC. 812(D), THE SO-CALLED "DISCLAIMER PROVISION," WHEREBY,
UNDER CERTAIN CONDITIONS, THE RENUNCIATION OF A PRIVATE BEQUEST WHICH
EFFECTUATES A GIFT TO CHARITY EARNS A CHARITABLE DEDUCTION FROM THE
DECEDENT'S GROSS ESTATE. 

FN4  "ART.  53.  PUBLIC, CHARITABLE, AND SIMILAR BEQUESTS.  -  ...
IT DOES NOT PREVENT DEDUCTION ...  THAT THE PROPERTY PLACED IN TRUST IS
ALSO SUBJECT TO ANOTHER TRUST FOR A PRIVATE PURPOSE.  THUS, WHERE MONEY
OR PROPERTY IS PLACED IN TRUST TO PAY THE INCOME TO AN INDIVIDUAL
DURING LIFE, AND THEN TO PAY OR DELIVER THE SAME TO A CHARITABLE
CORPORATION, OR APPLY THE PRINCIPAL TO A CHARITABLE PURPOSE, THE
CHARITABLE BEQUEST OR DEVISE FORMS THE BASIS FOR A DEDUCTION.  THE
AMOUNT OF THE DEDUCTION, IN SUCH CASE, IS THE VALUE, AT THE DATE OF THE
DECEDENT'S DEATH, OF THE REMAINDER INTEREST IN THE MONEY OR PROPERTY
WHICH IS DEVISED OR BEQUEATHED TO CHARITY.  FOR THE MANNER OF
DETERMINING THE VALUE OF SUCH REMAINDER INTEREST, SEE ARTICLE 20."  21
T.D. 783-784. 

ARTICLE 20 PRESCRIBED METHODS OF DETERMINING THE PRESENT WORTH OF A
REMAINDER SUBJECT TO A SINGLE LIFE INTEREST. 

FN5  CONGRESSIONAL INSISTENCE UPON THE ACTUAL USE OF THE FUNDS
EXCLUSIVELY FOR CHARITABLE PURPOSES APPEARS IN THE FOLLOWING PROVISIONS
DESCRIBING THE BEQUESTS THAT ARE DEDUCTIBLE: 

"THE AMOUNT OF ALL BEQUESTS  ...  TO OR FOR THE USE OF ANY
CORPORATION ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS,
CHARITABLE, SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES  ...  NO PART
OF THE NET EARNINGS OF WHICH INURES TO THE BENEFIT OF ANY PRIVATE
STOCKHOLDER OR INDIVIDUAL  ...  OR TO A TRUSTEE OR TRUSTEES, OR A
FRATERNAL SOCIETY, ORDER, OR ASSOCIATION OPERATING UNDER THE LODGE
SYSTEM, BUT ONLY IF SUCH CONTRIBUTIONS OR GIFTS ARE TO BE USED  ...
EXCLUSIVELY FOR RELIGIOUS, CHARITABLE, SCIENTIFIC, LITERARY, OR
EDUCATIONAL PURPOSES  ...  ."  I.R.C., SEC. 812(D). 

FN6  "ART.  56.  CONDITIONAL BEQUESTS.  - WHERE THE BEQUEST, LEGACY,
DEVISE, OR GIFT IS DEPENDENT UPON THE PERFORMANCE OF SOME ACT, OR THE
HAPPENING OF SOME EVENT, IN ORDER TO BECOME EFFECTIVE IT IS NECESSARY
THAT THE PERFORMANCE OF THE ACT OR THE OCCURRENCE OF THE EVENT SHALL
HAVE TAKEN PLACE BEFORE THE DEDUCTION CAN BE ALLOWED.  WHERE, BY THE
TERMS OF THE BEQUEST, DEVISE OR GIFT, IT IS SUBJECT TO BE DEFEATED BY A
SUBSEQUENT ACT OR EVENT, NO DEDUCTION WILL BE ALLOWED."  21 T.D. 785. 

FN7  UNITED STATES V. PROVIDENT TRUST CO., 291 U.S. 272.  SEE ALSO,
HOAGLAND V. KAVANAGH, 36 F. SUPP. 875; NINTH BANK & TRUST CO. V. UNITED
STATES, 15 F. SUPP. 951. 

FN8 DESPITE THE CONCLUSIONS OF THE TAX COURT AND THE COURT OF APPEALS
TO THE CONTRARY, THE GOVERNMENT CONTENDS HERE THAT THE PROPOSED
ACTUARIAL VALUE OF THE CONDITIONAL REMAINDER TO CHARITY DOES NOT
SUPPORT THE DEDUCTION.  WE DO NOT REACH THAT ISSUE, BUT THE FACTS
MATERIAL TO IT ARE AS FOLLOWS:  THE REMARRIAGE TABLE IS BASED ON A
STUDY OF AMERICAN EXPERIENCE CONDUCTED BY A COMMITTEE OF THE CASUALTY
ACTUARIAL SOCIETY, 19 PROCEEDINGS OF THE CASUALTY ACTUARIAL SOCIETY
(1933), 279-349.   THE TABLE IS BASED SOLELY UPON THE REMARRIAGE
EXPERIENCE OF WIDOWS WHO, THROUGH THE DEATHS OF THEIR HUSBANDS, BECOME
BENEFICIARIES UNDER WORKMEN'S COMPENSATION LAWS IN STATES WHERE THEY
LOSE COMPENSATION BENEFITS UPON REMARRIAGE.  THE REPORTS RELIED UPON
COVER EXPERIENCE FOR POLICY YEARS 1921 TO 1929, INCLUSIVE.  SEE ID., AT
286-288, 298.  SEE ALSO, MYERS, FURTHER REMARRIAGE EXPERIENCE, 36
PROCEEDINGS OF THE CASUALTY ACTUARIAL SOCIETY (1949), 73 ET SEQ. THE
SPECIALLY DEVISED TABLE AS TO THE PROBABILITY OF ISSUE IS BASED UPON
STATISTICS, FOR WHITE WOMEN IN 47 STATES AND THE DISTRICT OF COLUMBIA,
INDICATING THE DEGREE OF PROBABILITY THAT SUCH WOMEN, AFTER THEY ARE 27
YEARS OLD, WILL MARRY AND HAVE FIRST-BORN CHILDREN.  SEE THE FOLLOWING
BUREAU OF THE CENSUS PUBLICATIONS FOR 1940; VITAL STATISTICS OF THE
UNITED STATES, PT. II, 89; NATIVITY AND PARENTAGE OF THE WHITE
POPULATION - GENERAL CHARACTERISTICS 110; TYPES OF FAMILIES 9.  THE
INSTANT COMPUTATION ASSUMES THAT SUCH A CHILD WILL SURVIVE ITS MOTHER. 
18 T.C. 836, 837-838. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE FACTS ARE FULLY AND FAIRLY STATED IN THE COURT'S OPINION.  ITS
STATEMENT OF THE LEGAL ISSUES ACCORDS WITH OUR UNDERSTANDING OF THE
CASE, TO WIT: 

"THE QUESTION BEFORE US IS WHAT, IF ANY, CHARITABLE DEDUCTION MAY BE
MADE DESPITE (1) THE DEFERMENT OF THE EFFECTIVE DATE OF THE CHARITABLE
BEQUEST UNTIL THE DEATHS OF BOTH DECEDENT'S WIFE AND DAUGHTER AND (2)
THE CONDITIONING OF THE BEQUEST UPON A LACK OF DESCENDANTS OF
DECEDENT'S DAUGHTER SURVIVING AT THAT TIME." 

THE REASON FOR DISSENTING, AT SOME LENGTH, IS THAT THE COURT'S
CONCLUSION SEEMS TO DISREGARD THE WORDS OF THE STATUTE IN QUESTION AND
TO SUBVERT THE PURPOSE OF CONGRESS IN ITS ENACTMENT, THAT PURPOSE
ADMITTEDLY BEING TO ENCOURAGE TESTAMENTARY GIFTS TO CORPORATIONS
ORGANIZED FOR CERTAIN OBJECTS CONSIDERED HIGHLY DESIRABLE FOR THE GOOD
OF OUR PEOPLE.  (FN1)  THERE IS A CERTAIN HESITATION IN DISSENTING FROM
AN INTERPRETATION OF A TAX STATUTE REMEDIABLE BY CONGRESS, BUT AS THE
COURT'S DECISION SPRINGS, WE THINK FROM AN OVEREMPHASIS ON REGULATIONS,
A PROTEST MAY HAVE USEFULNESS AS A COUNTERWEIGHT AGAINST FUTURE
EXTENSIONS OF SUCH TREATMENT TO STATUTORY LANGUAGE. 

FIRST.  THE STATUTE, 26 U.S.C. SEC. 812(D), ALLOWS AS DEDUCTIONS FROM
THE GROSS ESTATE THE "AMOUNT OF ALL BEQUESTS, LEGACIES, DEVISES, OR
TRANSFERS  ...  TO OR FOR THE USE OF ANY CORPORATION ORGANIZED AND
OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE, SCIENTIFIC, LITERARY,
OR EDUCATIONAL PURPOSES  ...  ."  THERE IS NO LEGISLATIVE HISTORY
EXPLANATORY OF ITS MEANING.  (FN2)  IF WE READ THE QUOTED PORTION OF
SEC. 812 ALONE, COULD THERE BE ANY DOUBT THAT THE STERNBERGER BEQUEST
IS DEDUCTIBLE?  WE THINK NOT.  IT SAYS "ALL BEQUESTS" - WHATEVER THE
CHARITY TAKES UNDER THE WILL.  THERE IS NOT A WORD THAT LIMITS THE
DEDUCTION OF BEQUESTS TO WHAT ASSUREDLY GOES TO THE INSTITUTION.   IT
IS THE "AMOUNT" OF THE BEQUEST THAT IS DEDUCTIBLE - ITS PRESENTLY
ASCERTAINABLE VALUE.  THE STATUTE PLAINLY ALLOWS DEFERRED CHARITABLE
BEQUESTS.  IT DOES NOT REQUIRE ASSURED ENJOYMENT. 

UNDER THE COURT'S INTERPRETATION, IF A CHILD WERE BEQUEATHED HIS
FATHER'S ESTATE FOR LIFE WITH REMAINDER IN DEFAULT OF ISSUE TO THE
RECOGNIZED INSTITUTIONS, THE FULL ESTATE TAX WOULD HAVE TO BE PAID.  ON
THE OTHER HAND, IF THE ESTATE WERE LEFT SIMPLY TO THE CHILD FOR LIFE
AND THEN TO THE SAME INSTITUTIONS, THE ESTATE WOULD BE FREE FROM THE
TAX ON THE PRESENT VALUE OF THE REMAINDER.  SUCH A DIFFERENTIATION IS
NOT FOUND IN THE STATUTE.  THE CONGRESS SAID THAT CHARITABLE BEQUESTS
SHOULD BE DEDUCTIBLE.  THE VALUATION OF THE CHARITABLE INTEREST IN ONE
INSTANCE WOULD BE GREATER THAN IN THE OTHER; THE TAX LESS.  BUT IN EACH
CASE THE NET ESTATE WOULD BE REDUCED ONLY BY THE PRESENT ACTUARIAL
VALUE OF THE CHARITABLE BEQUEST.  WHILE PARTICULAR ESTATES WOULD SECURE
TAX ADVANTAGES UNDER OUR INTERPRETATION, IN THE AGGREGATE THE
CHARITABLE DEDUCTIONS SHOULD SUBSTANTIALLY EQUAL THE AMOUNT RECEIVED BY
THE TAX-RECOGNIZED INSTITUTIONS.  THIS WOULD SURELY FAIRLY CARRY OUT
THE CONGRESSIONAL PURPOSE.  TO VIEW RESPONDENT'S CONTENTION AS URGING A
POSSIBLE OVER-ALL TAX WINDFALL FOR ESTATES IS TO DENY THE MATHEMATICAL
LAW OF AVERAGES.  (FN3)    OUR INTERPRETATION OF THE STATUTE HAS
SUPPORT IN THE LANGUAGE OF TREASURY REGULATION 105, SEC. 81.44.  AFTER
REFERRING TO THE VALUATION OF BEQUESTS WHOSE VALUE IS PRESENTLY
ASCERTAINABLE, THE REGULATION ADDS: 

"IF THE PRESENT WORTH OF A REMAINDER BEQUEATHED FOR A CHARITABLE USE
IS DEPENDENT UPON THE TERMINATION OF MORE THAN ONE LIFE, OR IN ANY
OTHER MANNER RENDERING INAPPLICABLE TABLE A OR B OF SEC. 81.10, THE
CLAIM FOR THE DEDUCTION MUST BE SUPPORTED BY A FULL STATEMENT, IN
DUPLICATE, OF THE COMPUTATION OF THE PRESENT WORTH MADE, IN ACCORDANCE
WITH THE PRINCIPLE SET FORTH IN SEC. 81.10, BY ONE SKILLED IN ACTUARIAL
COMPUTATIONS." 

THE TABLES REFER TO A REMAINDER CONTINGENT ON THE TERMINATION OF ONE
LIFE ONLY.  SECTION 81.44 ALONE WOULD ALLOW, IN THE LIGHT OF THE
STATUTORY LANGUAGE, A DEDUCTION FOR A CONTINGENT BEQUEST, UNCERTAIN AS
TO ULTIMATE RECEIPT.  SEE THE COURT'S OPINION, ANTE, PP. 198 AND 199. 
THE COURT DOES NOT FOLLOW THIS LANGUAGE OF THE REGULATIONS BECAUSE OF
SEC. 81.46 AND BECAUSE OF "STATUTORY EMPHASIS UPON OUTRIGHT BEQUESTS." 
WE FIND NO SUCH EMPHASIS.  THE PURPOSE OF THE STATUTE LEADS US TO THE
CONTRARY RESULT.  (FN4) 

THE COURT AGREES, HOWEVER, WITH THE GOVERNMENT'S CONTENTION THAT "IT
IS IMMATERIAL WHETHER THE CHARITY'S CONTINGENT POSSIBILITY OF RECEIPT
CAN BE VALUED AS OF THE DECEDENT'S DEATH."  IT HOLDS THAT IT IS ONLY
WHEN ULTIMATE RECEIPT MUST FOLLOW THAT SEC. 812(D) ALLOWS A DEDUCTION. 
ALTHOUGH THE GOVERNMENT ASSERTS ITS CONCLUSION IS UPHELD BY OUR
DECISIONS, WE DO NOT THINK THEY SO HOLD.  IN THIS COURT FIVE CASES HAVE
TOUCHED UPON THE PROBLEM.  THREE OF THEM WERE DISPOSED OF BECAUSE OF
THE FAILURE TO INTRODUCE, OR THE IMPOSSIBILITY OF MAKING, A VALUATION
UPON SOUND ACTUARIAL PRINCIPLES.  (FN5)  NONE OF THEM HELD THAT
BEQUESTS ARE NOT DEDUCTIBLE ALTHOUGH THE ULTIMATE TAKING BY THE
CHARITABLE BENEFICIARY WAS UNCERTAIN. 

TWO - ITHACA TRUST CO. V. UNITED STATES, 279 U.S. 151, AND UNITED
STATES V. PROVIDENT TRUST CO., 291 U.S. 272 - ALLOWED A DEDUCTION FOR
CONDITIONAL CHARITABLE BEQUESTS.  THE FORMER BECAUSE A RIGHT TO INVADE
THE CORPUS WAS FIXED BY A STANDARD CAPABLE OF BEING STATED IN MONEY
AND, AS THE INCOME OF THE STATE WAS AMPLE FOR THE NEEDS OF THE LIFE
BENEFICIARY, THERE WAS NO UNCERTAINTY SUFFICIENT TO JUSTIFY A REFUSAL
OF THE DEDUCTION FOR THE CHARITABLE REMAINDER.  THE LATTER IS, ON ITS
FACE, A DECISION THAT WOULD DECIDE THE ISSUE, SIMPLICITER, OF THE
DEDUCTIBILITY OF CONTINGENT BEQUESTS.  NEITHER IS HERE CONTROLLING,
HOWEVER, SINCE IN BOTH THE CHARITY WAS HELD TO BE ASSURED OF TAKING. 
THE PROVIDENT TRUST CASE IS WORTH A MOMENT'S EXAMINATION.  PROPERTY WAS
LEFT BY WILL IN TRUST FOR THE DECEASED'S DAUGHTER FOR LIFE; UPON HER
DEATH THE CORPUS WAS TO PASS TO HER LAWFUL ISSUE; BUT SHOULD SHE DIE
WITHOUT ISSUE, THE ESTATE WAS TO BE DISTRIBUTED AMONG VARIOUS
CHARITABLE ORGANIZATIONS.  PRIOR TO THE DEATH OF THE TESTATOR, AN
OPERATION HAD RENDERED THE DAUGHTER INCAPABLE OF CHILDBEARING, ASSURING
THE VESTING OF THE CHARITABLE REMAINDER.  THIS COURT DID NOT APPLY THE
THEN EXISTING REGULATION (THE PREDECESSOR TO SEC.  81.46(D)) (FN6)
WHICH WOULD HAVE DENIED A DEDUCTION.  IT IGNORED THE REGULATION,
APPARENTLY BELIEVING IT IN CONFLICT WITH THE PURPOSE OF THE STATUTE,
AND ALLOWED THE DEDUCTION, THUS REQUIRING THE AMENDMENT OF THE
REGULATION TO ITS PRESENT FORM.  THE COURT STATED THE RELEVANT INQUIRY
TO BE AS FOLLOWS: 

"THE SOLE QUESTION TO BE CONSIDERED IS - WHAT IS THE VALUE OF THE
INTEREST TO BE SAVED FROM THE TAX?  THAT IS A PRACTICAL QUESTION, NOT
CONCLUDED BY THE PRESUMPTION INVOKED BUT TO BE DETERMINED BY
ASCERTAINING IN TERMS OF MONEY WHAT THE PROPERTY CONSTITUTING THAT
INTEREST WOULD BRING IN THE MARKET, SUBJECT TO SUCH UNCERTAINTY AS
ORDINARILY ATTACHES TO SUCH AN INQUIRY.  SEE ITHACA TRUST CO. V. UNITED
STATES  ...  ."  291 U.S., AT 286. 

OUR CONCLUSION IS THAT THE PURPOSE OF SEC. 812 WAS TO ALLOW A
DEDUCTION FOR CHARITABLE BEQUESTS THAT ARE CAPABLE OF VALUATION AT THE
TIME OF DEATH, ALTHOUGH IT IS NOT CERTAIN THAT THE GIFT WILL ULTIMATELY
FALL TO THE CONTINGENT BENEFICIARY.  SEE IN ACCORD MEIERHOF V. HIGGINS,
129 F.2D 1002, A CASE IN CONFLICT WITH NEWTON TRUST CO. V.
COMMISSIONER, 160 F.2D 175, WHICH UTLIMATELY LED TO THE ALLOWANCE OF
THIS CERTIORARI.  THE PURPOSE OF SEC. 812 AND ITS BACKGROUND FORBID, WE
THINK, A CONCLUSION THAT CONGRESS INTENDED TO EXCLUDE A DEDUCTION IN
THOSE CASES. 

SECOND.  THE GOVERNMENT ASSERTS AND THIS COURT AGREES THAT ALTHOUGH
IT IS CLEAR THAT SEC.  812 ALLOWS A DEDUCTION FOR SOME CONTINGENT
BEQUESTS, SEC. 81.46 OF THE REGULATIONS LIMITS THOSE CONTINGENCIES TO
INSTANCES WHERE THE "POSSIBILITY THAT CHARITY WILL NOT TAKE IS SO
REMOTE AS TO BE NEGLIGIBLE."  CLEARLY THE POSSIBILITY HERE IS NOT
"REMOTE."  THE CHANCES ARE AGAINST THE CHARITY TAKING.  IT IS QUITE
TRUE THAT SEC. 81.46 HAS SURVIVED REENACTMENT OF I.R.C., SEC. 812, AND
THAT IT CAN BE INTERPRETED AS A LIMITATION UPON THE DEDUCTIBILITY OF
CONTINGENT REMAINDERS.  HOWEVER, WE DO NOT THINK SUCH A RULING WOULD BE
CONSISTENT WITH THE PURPOSE OF CONGRESS, MANIFESTED BY I.R.C., SEC.
812. 

WHETHER THE REGULATIONS ARE WRITTEN INTO THE ESTATE TAX LAW BY
REENACTMENT OR ARE MERELY INDICATIVE OF CONGRESSIONAL PURPOSE, (FN7)
THE DEDUCTION SECTION AND THE REGULATIONS ARE TO BE INTERPRETED IN THE
LIGHT OF THE CONGRESSIONAL PURPOSE.  WHATEVER MAY BE THE VARYING VIEWS
AS TO THE DESIRABILITY OF TESTAMENTARY GIFTS OF MONEYS OR BUSINESSES TO
PUBLIC OR PRIVATE CHARITABLE FOUNDATIONS, CONGRESS HAS SANCTIONED SUCH
PROVISIONS, VESTED OR WITH CERTAIN DEGREES OF CONTINGENCY, BY THE
DEDUCTION SECTION OF THE ESTATE TAX.  (FN8)  THE POLICY HAS BROUGHT
MUNIFICENT GIFTS TO THE CHOSEN INSTITUTIONS. 

IF IT WERE NOT FOR THE REENACTMENT OF SEC. 812 AFTER THE PROMULGATION
OF SEC. 81.46, WE WOULD HAVE NO HESITATION IN DECLARING IT IN CONFLICT
WITH THE STATUTE.  EVEN IN INTERPRETING STATUTES WHEN ISOLATED
PROVISIONS WOULD PRODUCE RESULTS "PLAINLY AT VARIANCE WITH THE POLICY
OF THE LEGISLATION AS A WHOLE," WE FOLLOW THE PURPOSE RATHER THAN THE
LITERAL WORDS.  UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S.
534, 543.  THAT RULE IS APPLICABLE HERE.  REGULATIONS DO NOT HAVE THE
SAFEGUARDS OF FEDERAL STATUTORY ENACTMENTS.  INTERESTED PARTIES OUTSIDE
THE INTERNAL REVENUE SERVICE PERHAPS MAY NOT BE HEARD.  REPORTS
EXPLAINING THE ACTION ARE NOT AVAILABLE.  PUBLIC DISCUSSION, SUCH AS
HAPPENS IN CONGRESS, DOES NOT TAKE PLACE.  IN SHORT, WE THINK THAT
REENACTMENT OF A STATUTE AFTER THE DUE ADOPTION OF A REGULATION DOES
NOT MAKE THE REGULATION A PART OF THE STATUTE.  IT IS ONLY AN
INDICATION OF CONGRESSIONAL PURPOSE TO BE WEIGHED IN THE CONTEXT AND
CIRCUMSTANCES OF THE STATUTORY LANGUAGE.  IN THIS INSTANCE THE
CONGRESSIONAL PURPOSE TO ENCOURAGE GIFTS TO CHARITY SHOULD NOT BE
FRUSTRATED BY THE ISSUANCE OF A REGULATION. 

FOR THE FOREGOING REASONS WE WOULD AFFIRM THE JUDGMENT OF THE SECOND
CIRCUIT. 

FN1  SEE NOTE 3 OF THE COURT'S OPINION. 

FN2  SEE NOTE 2 OF THE COURT'S OPINION. 

FN3  AS THE COURT STATES THE ACTUARIAL METHOD AND ASSUMES BY NOT
REACHING IT, NOTE 8 OF THE OPINION, THE CORRECTNESS OF THE COMPUTATION
OF THE VALUE OF THE CONDITIONAL REMAINDER TO CHARITY, WE WILL MERELY
ADD THAT THIS POSITION ACCORDS WITH THE CONCLUSION OF THE TAX COURT, 18
T.C. 836, AND THE COURT OF APPEALS, 207 F.2D 600, THROUGH ITS RELIANCE
ON MEIERHOF V. HIGGINS, 129 F.2D 1002, 1003, A CASE ALSO INVOLVING THE
MULTIPLE-DECREMENT THEORY.  SEE JORDAN, LIFE CONTINGENCIES, 251. 

FN4  SEE MEIERHOF V. HIGGINS, 129 F.2D 1002, HOLDING THAT THE
PREDECESSORS TO SECS.  81.44 AND 81.46 ARE TO BE READ TOGETHER. 

FN5  HUMES V. UNITED STATES, 276 U.S. 487.  IT WAS THERE SAID: 

"THE COURT OF CLAIMS DID NOT FIND THAT THE PRESENT VALUE OF THE
CONTINGENT BEQUESTS TO THE CHARITIES CAN BE DETERMINED BY THE
CALCULATIONS OF ACTUARIES BASED UPON EXPERIENCE TABLES  ...  . 

"IF ALL THE FACTS STATED HAD BEEN EMBODIED IN FINDINGS, NO LEGAL
BASIS WOULD BE LAID FOR THE DEDUCTION CLAIMED.  THE VOLUME AND
CHARACTER OF THE EXPERIENCE UPON WHICH THE CONCLUSIONS DRAWN FROM THESE
TWO TABLES ARE BASED, DIFFER FROM THE VOLUME AND CHARACTER OF THE
EXPERIENCE EMBODIED IN STANDARD MORTALITY TABLES, ALMOST AS WIDELY AS
POSSIBILITY FROM CERTAINTY."  276 U.S., AT 492-493. 

THE TABLES WERE BASED ON THE LIMITED EXPERIENCE OF MALE AND FEMALE
MEMBERS OF THE SCOTCH PEERAGE.  MERCHANTS BANK V. COMMISSIONER, 320
U.S. 256; HENSLEE V. UNION PLANTERS BANK, 335 U.S. 595.  COMPARE
ROBINETTE V. HELVERING, 318 U.S. 184. 

FN6  "CONDITIONAL BEQUESTS.  - WHERE THE BEQUEST, LEGACY, DEVISE, OR
GIFT IS DEPENDENT UPON THE PERFORMANCE OF SOME ACT, OR THE HAPPENING OF
SOME EVENT, IN ORDER TO BECOME EFFECTIVE IT IS NECESSARY THAT THE
PERFORMANCE OF THE ACT OR THE OCCURRENCE OF THE EVENT SHALL HAVE TAKEN
PLACE BEFORE THE DEDUCTION CAN BE ALLOWED.  WHERE, BY THE TERMS OF THE
BEQUEST, DEVISE OR GIFT, IT IS SUBJECT TO BE DEFEATED BY A SUBSEQUENT
ACT OR EVENT, NO DEDUCTION WILL BE ALLOWED."  TREAS. REG. 37, ART. 56. 

FN7  COMPARE HELVERING V. REYNOLDS CO., 306 U.S. 110, 115; CRANE V.
COMMISSIONER, 331 U.S. 1, 8, WITH HELVERING V. WILSHIRE OIL CO., 308
U.S. 90.  SEE 54 HARV. L. REV. 377, 398, 1311. 

FN8  GRISWOLD, CASES AND MATERIALS ON FEDERAL TAXATION (3D ED.), 679,
SETTING OUT THE LEGISLATIVE HISTORY OF THE SECTION WITH BRIEF REFERENCE
TO THE DIFFERING VIEWS ON THE MERIT OF THE CHARITABLE DEDUCTION; PAUL,
FEDERAL ESTATE AND GIFT TAXATION, VOL. I, C. 12. 
..END :












COX V. ROTH 348 U.S. 207 


NO. 40.  ARGUED NOVEMBER 16, 1954 - DECIDED JANUARY 10, 1955 - 210 F.2D
76, AFFIRMED. 


1.  AN ACTION UNDER THE JONES ACT, 46 U.S.C. SEC. 688, FOR DAMAGES FOR
THE DEATH OF A SEAMAN EMPLOYED ON A VESSEL OWNED BY INDIVIDUALS,
SURVIVES THE DEATHS OF THE TORTFEASORS.  PP. 207-210. 

(A)  CONGRESS, HAVING PROVIDED THAT RAILROAD EMPLOYEES COULD RECOVER
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT REGARDLESS OF THE "SURVIVAL"
OF THE TORTFEASOR RAILROAD, AND HAVING GRANTED SEAMEN UNDER THE JONES
ACT THE SAME RIGHTS GRANTED TO RAILROAD EMPLOYEES UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, INTENDED THAT THE DEATH OF THE TORTFEASOR
SHOULD NOT DEFEAT RECOVERY UNDER THE JONES ACT.  PP. 208-209. 

(B)  THE JONES ACT, AS WELFARE LEGISLATION, IS ENTITLED TO A LIBERAL
CONSTRUCTION TO ACCOMPLISH ITS BENEFICENT PURPOSES.  P. 210. 

2.  THE 3-YEAR PERIOD OF LIMITATIONS APPLICABLE TO ACTIONS UNDER THE
JONES ACT CANNOT BE DIMINISHED BY STATE STATUTE.  P. 210. 

COX ET AL., ADMINISTRATORS, ET AL. V. ROTH, ADMINISTRATOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE MAIN QUESTION PRESENTED IN THIS CASE IS WHETHER AN ACTION UNDER
THE JONES ACT SURVIVES THE DEATH OF THE TORTFEASOR.  IN NORDQUIST V.
UNITED STATES TRUST CO., 188 F.2D 776, THE COURT OF APPEALS FOR THE
SECOND CIRCUIT ANSWERED THIS QUESTION IN THE AFFIRMATIVE.  IN THE
INSTANT CASE THE COURT OF APPEALS FOR THE FIFTH CIRCUIT ANSWERED IT IN
THE NEGATIVE, BUT ALLOWED RECOVERY ON THE BASIS OF STATE LAW, 210 F.2D
76.  WE GRANTED CERTIORARI IN ORDER TO RESOLVE THIS CONFLICT.  347 U.S.
1009. 

JIM DEAN WAS EMPLOYED AS A SEAMAN ON THE M.V. WINGATE, OWNED AND
OPERATED BY CAPTAIN H.C. FARRINGTON AND SID COX, CITIZENS OF THE UNITED
STATES AND RESIDENTS OF FLORIDA.  THE WINGATE SAILED ON OR ABOUT
DECEMBER 22, 1949, FROM MATANZAS, CUBA, AND WHILE ON THE HIGH SEAS
FOUNDERED AND WAS LOST.  CAPTAIN FARRINGTON'S BODY WAS WASHED ASHORE ON
THE CUBAN COAST, BUT NO TRACE WAS FOUND OF DEAN OR THE VESSEL.  SID COX
DIED IN JANUARY 1951 OF CAUSES BEARING NO RELATION TO THE DISASTER. 

IN OCTOBER 1952, THE RESPONDENT, AS THE ADMINISTRATOR OF THE ESTATE
OF JIM DEAN, BROUGHT THIS ACTION AGAINST THE PETITIONER IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA.  THE
COMPLAINT, BROUGHT UNDER THE JONES ACT, 41 STAT. 1007, 46 U.S.C.  SEC.
688, ALLEGED THAT DEAN WAS A MEMBER OF THE CREW OF THE WINGATE AND HAD
LOST HIS LIFE THROUGH THE NEGLIGENCE OF ITS OWNERS.  THE PETITIONER
COX AND THOMPSON ARE THE ADMINISTRATORS OF THE ESTATE OF SID COX, WHILE
HENRIETTA AND HOWARD FARRINGTON ARE THE DISTRIBUTEES OF H.C.
FARRINGTON.  THE ESTATES OF COX AND FARRINGTON HAD BEEN PROBATED AND
THAT OF FARRINGTON CLOSED BEFORE HIS ACTION WAS FILED.  RESPONDENT
FILED NO NOTICE OF CLAIM IN EITHER ESTATE PROCEEDING WITHIN THE 8-MONTH
PERIOD REQUIRED BY SEC. 733.16 OF THE FLORIDA STATUTES. 

THE PRIMARY DIFFICULTY IN THIS CASE STEMS FROM THE FACT THAT
CONGRESS, IN PASSING THE JONES ACT, DID NOT SPECIFICALLY ENUMERATE THE
RIGHTS OF SEAMEN, BUT MERELY EXTENDED TO THEM THE SAME RIGHTS GRANTED
TO RAILWAY EMPLOYEES BY THE FEDERAL EMPLOYERS' LIABILITY ACT.  WHILE
THE LATTER ACT CONTAINED NO CLAUSE SPECIFICALLY PROVIDING FOR THE
SURVIVAL OF ACTIONS AGAINST DECEASED TORTFEASORS, IT DID PROVIDE THAT
THE CLAIM OF THE EMPLOYEE COULD BE PROSECUTED AGAINST "THE RECEIVER OR
RECEIVERS OR OTHER PERSONS OR CORPORATIONS CHARGED WITH THE DUTY OF THE
MANAGEMENT AND OPERATION OF THE BUSINESS OF A COMMON CARRIER."  35
STAT. 66, 45 U.S.C. SEC. 57.  SINCE RAILROADS ARE RARELY, IF EVER,
OWNED BY INDIVIDUALS, AND SINCE THEY ARE SUBJECT TO VARIOUS REGULATIONS
WHICH PREVENT THEIR DISCONTINUING BUSINESS, A CLAUSE PERMITTING SUIT
AGAINST THE PERSONAL REPRESENTATIVE OF THE INDIVIDUAL OWNER OF A
RAILROAD WAS UNNECESSARY.  SEE 41 STAT. 477, 49 U.S.C. SEC. 1(18). 
CONGRESS FULLY PROVIDED FOR THE CORPORATE ANALOGUES OF DEATH WHEN IT
PROVIDED THAT SUIT MIGHT CONTINUE AGAINST THE RECEIVER OR SUCCESSOR
CORPORATION OF THE RAILROAD.  BUT WHERE SEAMEN COVERED BY THE JONES ACT
WORK ABOARD VESSELS OWNED BY INDIVIDUALS, LITERAL APPLICATION OF THE
WORDS OF THE FELA WOULD RESULT IN THE DENIAL OF RECOVERY AGAINST THE
PERSONAL REPRESENTATIVE OF THE TORTFEASOR.  THIS, WE FEEL, WOULD
FRUSTRATE THE CONGRESSIONAL PURPOSE OF "THE BENEFIT AND PROTECTION OF
SEAMEN WHO ARE PECULIARLY THE WARDS OF ADMIRALTY," THE ARIZONA V.
ANELICH, 298 U.S. 110, 123.  THE JONES ACT, IN PROVIDING THAT A SEAMAN
SHOULD HAVE THE SAME RIGHT OF ACTION AS WOULD A RAILROAD EMPLOYEE, DOES
NOT MEAN THAT THE VERY WORDS OF THE FELA MUST BE LIFTED BODILY FROM
THEIR CONTEXT AND APPLIED MECHANICALLY TO THE SPECIFIC FACTS OF
MARITIME EVENTS.  RATHER, IT MEANS THAT THOSE CONTINGENCIES AGAINST
WHICH CONGRESS HAS PROVIDED TO ENSURE RECOVERY TO RAILROAD EMPLOYEES
SHOULD ALSO BE MET IN THE ADMIRALTY SETTING.  APPLYING SUCH A RULE
HERE, WE CONCLUDE THAT CONGRESS, HAVING PROVIDED THAT RAILROAD
EMPLOYEES COULD RECOVER REGARDLESS OF THE "SURVIVAL" OF THE TORTFEASOR
RAILROAD, INTENDED THAT THE DEATH OF THE TORTFEASOR SHOULD NOT DEFEAT
RECOVERY UNDER THE JONES ACT.  AS THE COURT SAID IN MARKHAM V. CABELL,
326 U.S. 404, 409, "THE POLICY AS WELL AS THE LETTER OF THE LAW IS A
GUIDE TO DECISION.  RESORT TO THE POLICY OF A LAW MAY BE HAD TO
AMELIORATE ITS SEEMING HARSHNESS OR TO QUALIFY ITS APPARENT ABSOLUTES
...  .  THE PROCESS OF INTERPRETATION ALSO MISSES ITS HIGH FUNCTION IF
A STRICT READING OF A LAW RESULTS IN THE EMASCULATION OR DELETION OF A
PROVISION WHICH A LESS LITERAL READING WOULD PRESERVE." 

THE EXTREME HARSHNESS OF THE OLD COMMON-LAW RULE ABATING ACTIONS ON
THE DEATH OF THE TORTFEASOR FLIES IN THE FACE OF THE EXPRESSED
CONGRESSIONAL PURPOSE TO PROVIDE FOR "THE WELFARE OF SEAMEN."  THE
JONES ACT "AS WELFARE LEGISLATION  ...  IS ENTITLED TO A LIBERAL
CONSTRUCTION TO ACCOMPLISH ITS BENEFICENT PURPOSES."  COSMOPOLITAN CO.
V. MCALLISTER, 337 U.S. 783, 790.  SINCE THE DECISION HERE IS CONFINED
TO AN INTERPRETATION OF THE JONES ACT, THERE IS NO NEED TO CONSIDER THE
"SLENDER BASIS" FOR THE GENERAL ADMIRALTY RULE AGAINST SUCH
SURVIVORSHIP OF ACTIONS.  SEE JUST V. CHAMBERS, 312 U.S. 383, 387, N.
4.  NEVERTHELESS, IN CONSIDERING THE HARSHNESS OF THE RULE SOUGHT TO BE
IMPOSED UNDER THE JONES ACT, WE DO NOTE THAT ADVANCING CIVILIZATION AND
SOCIAL PROGRESS HAVE BROUGHT 43 OF OUR STATES TO INCLUDE IN THEIR
GENERAL LAW THE PRINCIPLE OF OUR STATES TO INCLUDE IN THEIR GENERAL LAW
THE PRINCIPLE OF THE SURVIVAL OF CAUSES OF ACTION AGAINST DECEASED
TORTFEASORS, AND THAT SUCH RECOVERY, RATHER THAN BEING EXCEPTIONAL, HAS
NOW BECOME THE RULE IN ALMOST EVERY COMMON-LAW JURISDICTION.  SEE THE
DISCUSSION BY ROSCOE POUND ON DEATH STATUTES AS PART OF THE GENERAL
LAW, 13 NACCA L. J. 188-189 (MAY 1954). 

PETITIONERS MAKE THE FURTHER CLAIM THAT EVEN IF THE JONES ACT IS
INTERPRETED TO ALLOW AN ACTION TO PROCEED AGAINST THE PERSONAL
REPRESENTATIVES OF THE TORTFEASORS, THIS SUIT MUST FAIL BECAUSE
RESPONDENT DID NOT COMPLY WITH THE FLORIDA STATUTE GOVERNING THE
DISTRIBUTION OF DECEDENTS' ESTATES.   THE SHORT ANSWER TO THIS IS THAT
CONGRESS, WITHIN ITS CONSTITUTIONAL POWER, DECREED A 3-YEAR STATUTE OF
LIMITATIONS UNIFORMLY THROUGHOUT THE NATION, PANAMA R. CO. V. JOHNSON,
264 U.S. 375, 392, AND NO STATE STATUTE CAN DIMINISH THIS PERIOD. 
AFFIRMED. 
..END :












UNITED STATES V. ACRI 348 U.S. 211 


NO. 33.  ARGUED NOVEMBER 16, 1954 - DECIDED JANUARY 10, 1955 - 209 F.2D
258, REVERSED. 


A TAX LIEN OF THE UNITED STATES IS ENTITLED TO PRIORITY OVER AN OHIO
ATTACHMENT LIEN, WHERE THE FEDERAL TAX LIEN WAS RECORDED SUBSEQUENT TO
THE DATE OF THE ATTACHMENT LIEN BUT PRIOR TO THE DATE THE ATTACHING
CREDITOR OBTAINED JUDGMENT.  UNITED STATES V. SECURITY TRUST CO., 340
U.S. 47, FOLLOWED.  PP. 211-214. 

(A)  THE RELATIVE PRIORITY AS BETWEEN A TAX LIEN OF THE UNITED STATES
AND A LIEN UNDER STATE LAW IS A FEDERAL QUESTION TO BE DETERMINED
FINALLY BY THE FEDERAL COURTS.  P. 213. 

(B)  THAT THE OHIO COURTS DESIGNATE AN ATTACHMENT LIEN "AN EXECUTION
IN ADVANCE," AND TREAT IT AS A PERFECTED LIEN AT THE TIME OF
ATTACHMENT, IS NOT BINDING UPON THIS COURT.  P. 213. 

(C)  FOR FEDERAL TAX PURPOSES, THE OHIO ATTACHMENT LIEN WAS INCHOATE
BECAUSE, AT THE TIME THE ATTACHMENT ISSUED, THE FACT AND THE AMOUNT OF
THE LIEN WERE CONTINGENT UPON THE OUTCOME OF THE SUIT FOR DAMAGES.  P.
214. 

(D)  THIS CASE IS NOT TO BE DISTINGUISHED FROM UNITED STATES V.
SECURITY TRUST CO., 340 U.S. 47.  P. 214. 

UNITED STATES V. ACRI ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE RELATIVE PRIORITY BETWEEN AN ATTACHMENT LIEN
AND THE LIENS OF THE UNITED STATES FOR UNPAID TAXES.  THE DISTRICT
COURT FOUND THE ATTACHMENT LIEN PRIOR TO THE LIENS OF THE UNITED
STATES, AND THE COURT OF APPEALS AFFIRMED WITHOUT OPINION.  WE GRANTED
CERTIORARI, 347 U.S. 973. 

ON AUGUST 11, 1948, THE UNITED STATES FILED SUIT IN THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF OHIO TO COLLECT UNPAID INCOME TAXES
FOR THE YEARS 1942-1946 AGAINST ONE ACRI AND HIS WIFE.  ACRI WAS AT THE
TIME IN THE PENITENTIARY FOR THE MURDER OF ONE ORAVEC, WHOSE PERSONAL
REPRESENTATIVE, ORAVITZ, HAD, ON AUGUST 6, 1947, IN MAHONING COUNTY,
OHIO, FILED AN ACTION AGAINST ACRI FOR WRONGFUL DEATH.  ON THE SAME
DATE, CERTAIN CASH AND BONDS OF ACRI, WHICH WERE IN HIS SAFETY DEPOSIT
BOX IN THE DOLLAR SAVINGS AND TRUST COMPANY, WERE ATTACHED BY ORAVITZ. 
THE BOX WAS NOT OPENED UNTIL SEPTEMBER 11, 1948, AFTER THE BANK HAD
BEEN MADE GUARDIAN OF ACRI, AT WHICH TIME AN INVENTORY WAS FILED.  THE
PERSONAL REPRESENTATIVE, ORAVITZ, AND THE BANK, AS GUARDIAN OF ACRI,
WERE MADE PARTIES TO THE GOVERNMENT'S SUIT. 

ON JANUARY 19, 1949, THE PERSONAL REPRESENTATIVE OF THE MURDERED MAN
RECOVERED JUDGMENT AGAINST ACRI IN THE SUM OF $18,500.  IN THE
MEANTIME, ON NOVEMBER 18, 1947, AFTER THE ISSUANCE OF THE WRIT OF
ATTACHMENT, BUT MORE THAN A YEAR BEFORE THE JUDGMENT IN THE MAIN ACTION
FOR WRONGFUL DEATH, THE ASSESSMENT LISTS FOR UNPAID INCOME TAXES OF
ACRI AND HIS WIFE FOR THE YEARS 1942-1946 WERE RECEIVED IN THE OFFICE
OF THE COLLECTOR OF INTERNAL REVENUE.  ON NOVEMBER 19, 1947, DEMAND FOR
PAYMENT WAS MAILED TO ACRI.  ON NOVEMBER 21, 1947, A NOTICE OF THE TAX
LIENS WAS FILED IN THE OFFICE OF THE RECORDER IN MAHONING COUNTY, OHIO,
WHICH IS THE RESIDENCE OF THE DEFENDANTS AND THE LOCATION OF THE ACRIS'
PROPERTY, AND THE PLACE WHERE THE ACTION FOR WRONGFUL DEATH WAS BEGUN. 
NOTICE AND LEVY OF THE TAX LIENS WERE SERVED UPON THE DOLLAR BANK.  IT
WAS STIPULATED THAT THE ONLY QUESTION INVOLVED WAS THE RELATIVE
PRIORITY OF THE ATTACHMENT LIEN OF THE PERSONAL REPRESENTATIVE AND THE
TAX LIENS OF THE UNITED STATES. 

THE ISSUE HERE IS IDENTICAL WITH THAT IN UNITED STATES V. SECURITY
TRUST CO., 340 U.S. 47.  THERE THE QUESTION WAS STATED AS FOLLOWS: 

"THE QUESTION PRESENTED HERE IS WHETHER A TAX LIEN OF THE UNITED
STATES IS PRIOR IN RIGHT TO AN ATTACHMENT LIEN WHERE THE FEDERAL TAX
LIEN WAS RECORDED SUBSEQUENT TO THE DATE OF THE ATTACHMENT LIEN BUT
PRIOR TO THE DATE THE ATTACHING CREDITOR OBTAINED JUDGMENT."  340 U.S.,
AT 48. 

OUR ANSWER HERE IS THE SAME AS IN THE SECURITY TRUST COMPANY CASE AND
FOR THE SAME REASONS. 

THE RELATIVE PRIORITY OF THE LIEN OF THE UNITED STATES FOR UNPAID
TAXES IS, AS WE SAID IN UNITED STATES V. WADDILL CO., 323 U.S. 353,
356, 357; ILLINOIS V. CAMPBELL, 329 U.S. 362, 371; UNITED STATES V.
SECURITY TRUST CO., 340 U.S. 47, 49, ALWAYS A FEDERAL QUESTION TO BE
DETERMINED FINALLY BY THE FEDERAL COURTS.  THE STATE'S CHARACTERIZATION
OF ITS LIENS, WHILE GOOD FOR ALL STATE PURPOSES, DOES NOT NECESSARILY
BIND THIS COURT.  UNITED STATES V. WADDILL CO., 323 U.S. 353, AT 357;
UNITED STATES V. GILBERT ASSOCIATES, 345 U.S. 361.  THEREFORE, THE FACT
THAT THE OHIO COURT HAD DESIGNATED AN ATTACHMENT LIEN "AN EXECUTION IN
ADVANCE," REMPE & SON V. RAVENS, 68 OHIO ST. 113, 67 N.E. 282, AND
TREATED IT AS A PERFECTED LIEN AT THE TIME OF ATTACHMENT, DOES NOT BIND
THIS COURT.  WE MUST LOOK AT THE CIRCUMSTANCES AS WE DID IN THE WADDILL
CASE, WHERE THE VIRGINIA COURT HAD HELD A LANDLORD'S LIEN WAS FIXED,
SPECIFIC, AND NOT INCHOATE.  THIS COURT, AFTER EXAMINING THE FACTS,
FOUND OTHERWISE.  IN GILBERT ASSOCIATES, THE NEW HAMPSHIRE COURT HAD
HELD THAT THE ASSESSMENT OF A TAX WAS JUDGMENT AND THE UNITED STATES'
LIEN FOR TAXES WAS NOT VALID AGAINST THE TAX ASSESSMENT MADE BY THE
TOWN WITHIN THE MEANING OF SEC. 3672 OF THE INTERNAL REVENUE CODE.*  WE
HELD THAT ALTHOUGH NEW HAMPSHIRE MIGHT TREAT ITS TAX ASSESSMENTS AS
JUDGMENTS FOR STATE PURPOSES, THE ASSESSMENT OF THE TAX WAS NOT A
JUDGMENT WITHIN THE MEANING OF SEC. 3672.  WE HOLD HERE THAT THE
ATTACHMENT LIEN IN OHIO IS FOR FEDERAL TAX PURPOSES AN INCHOATE LIEN
BECAUSE, AT THE TIME THE ATTACHMENT ISSUED, THE FACT AND THE AMOUNT OF
THE LIEN WERE CONTINGENT UPON THE OUTCOME OF THE SUIT FOR DAMAGES. 

*"SUCH LIEN SHALL NOT BE VALID AS AGAINST ANY MORTGAGEE, PLEDGEE,
PURCHASER, OR JUDGMENT CREDITOR UNTIL NOTICE THEREOF HAS BEEN FILED BY
THE COLLECTOR  ...  " ETC. 

IN ARGUMENT IT WAS POINTED OUT THAT THE STATUTE OF CALIFORNIA
INVOLVED IN THE SECURITY TRUST CASE WAS DIFFERENT BECAUSE CALIFORNIA
COURTS HAD HELD AN ATTACHMENT LIEN TO BE INCHOATE AND A MERE NOTICE OF
A MORE PERFECT LIEN TO COME, WHILE OHIO COURTS HAD HELD IT TO BE AN
EXECUTION IN ADVANCE AND A LIEN PERFECTED AS OF THE TIME OF
ATTACHMENT.  THIS DISTINCTION IS IMMATERIAL FOR PURPOSES OF FEDERAL
LAW.  THIS CASE IS NOT TO BE DISTINGUISHED FROM UNITED STATES V.
SECURITY TRUST CO., 340 U.S. 47, AND THE JUDGMENT IS REVERSED. 
..END :





















UNITED STATES V. LIVERPOOL & LONDON & GLOBE INSURANCE CO., LTD. 348 U.S.
215 


NO. 34.  ARGUED NOVEMBER 16, 1954 - DECIDED JANUARY 10, 1955 - 209 F.2D
684, REVERSED. 


1.  TAX LIENS OF THE UNITED STATES ARE ENTITLED TO PRIORITY OVER A
TEXAS GARNISHMENT LIEN, WHERE THE FEDERAL TAX LIENS WERE RECORDED
SUBSEQUENT TO THE DATE OF THE GARNISHMENT LIEN BUT PRIOR TO THE DATE
THE GARNISHER OBTAINED JUDGMENT.  UNITED STATES V. ACRI, ANTE, P. 211;
UNITED STATES V. SECURITY TRUST CO., 340 U.S. 47.  PP. 215-217. 

2.  THE GARNISHMENT LIEN IN THIS CASE NOT BEING PRIOR TO THE FEDERAL
TAX LIENS, ATTORNEY'S FEES ALLOWED TO THE GARNISHEE UNDER TEXAS LAW
WERE NOT PRIOR TO THE FEDERAL TAX LIENS, AND AUTHORIZATION OF THEIR
PAYMENT PRIOR TO THE FEDERAL TAX LIENS WAS ERROR.  P. 217. 

UNITED STATES V. LIVERPOOL & LONDON & GLOBE INSURANCE CO., LTD. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THIS IS A CASE INVOLVING PRIORITY OF FEDERAL TAX LIENS AND A LIEN OF
GARNISHMENT. 

ON MARCH 8, 1952, FIRE DESTROYED CERTAIN PROPERTY OF ADAMS, ENGAGED
IN A FURNITURE BUSINESS IN TEMPLE, BELL COUNTY, TEXAS.  RESPONDENT
INSURANCE COMPANY AND ANOTHER WERE THE INSURERS.  THE INSURANCE
COMPANIES AGREED ON THE AMOUNT OF THE LOSS, AND THEY WERE TO SHARE THE
PAYMENT EQUALLY.  BEFORE THE INSURANCE MONEY WAS PAID, A CREDITOR OF
ADAMS, THE SUNNYLAND WHOLESALE FURNITURE COMPANY, ON APRIL 8, 1952,
SUED ADAMS ON AN OPEN ACCOUNT.  AT THE SAME TIME, A WRIT OF GARNISHMENT
WAS ISSUED AND SERVED UPON THE LIVERPOOL & LONDON & GLOBE INSURANCE
COMPANY, ATTACHING THE INSURANCE FUNDS DUE AND OWING ADAMS.  ON APRIL
21, 1952, THE ASSESSMENT LISTS COVERING THE UNPAID FEDERAL TAXES OF
ADAMS AND HIS WIFE FOR 1948 AND 1950 WERE RECEIVED IN THE OFFICE OF THE
COLLECTOR OF INTERNAL REVENUE FOR TEXAS.  ON APRIL 26, 1952, NOTICE OF
TAX LIENS WAS FILED IN THE OFFICE OF THE COUNTY CLERK OF BELL COUNTY,
TEXAS, IN FAVOR OF THE UNITED STATES FOR $10,417.57, WITH INTEREST. 
NOTICE OF THE TAX LIENS WITH WARRANTS OF DISTRAINT AND NOTICE OF LEVY
WERE SERVED ON THE RESPONDENT INSURANCE COMPANY.  ON JUNE 20, 1952,
JUDGMENT WAS ENTERED AGAINST ADAMS IN FAVOR OF SUNNYLAND FOR $2,516.70,
WITH INTEREST AND COSTS.  WHEN THE GARNISHEE, THE RESPONDENT INSURANCE
COMPANY, ANSWERED, IT NAMED THE UNITED STATES AN ADDITIONAL PARTY
DEFENDANT AND REQUESTED A DETERMINATION OF PRIORITIES OF THE GARNISHER
AND THE UNITED STATES, AND ASKED FOR REASONABLE ATTORNEY'S FEES.  THE
AMENDMENT WAS ALLOWED, AND THE UNITED STATES WAS SERVED WITH PROCESS TO
APPEAR IN THE STATE COURT.  ON PETITION OF THE UNITED STATES THE
INTERPLEADER ACTION WAS REMOVED TO THE NORTHERN DISTRICT OF TEXAS, AND
THE UNITED STATES WAS DISMISSED AS A PARTY DEFENDANT AND PERMITTED TO
FILE ITS COMPLAINT FOR FORECLOSURE OF ITS TAX LIENS.  THE RESPONDENT
INSURANCE COMPANY PAID $7,500.39 INTO THE REGISTRY OF THE COURT AND
ASKED FOR AN ATTORNEY'S FEE OF $500.  THE DISTRICT COURT HELD THE LIEN
OF THE GARNISHER SUPERIOR TO THE LIENS OF THE UNITED STATES FOR TAXES
AND ALLOWED THE GARNISHEE $500 FOR ATTORNEY'S FEES.  107 F. SUPP. 405. 
THE COURT OF APPEALS AFFIRMED, ONE JUDGE DISSENTING.  209 F.2D 684.  WE
GRANTED CERTIORARI, 347 U.S. 973. 

THE QUESTION OF PRIORITIES IS IDENTICAL WITH THAT OF UNITED STATES V.
ACRI, ANTE, P. 211, AND UNITED STATES V. SECURITY TRUST CO., 340 U.S.
47.  ON THE AUTHORITY OF THOSE CASES WE HOLD THE TAX LIENS OF THE
UNITED STATES SUPERIOR TO THE LIEN OF THE GARNISHER. 

AS TO THE ATTORNEY'S FEE ALLOWED THE GARNISHEE INSURANCE COMPANY,
RULE 677, VERNON'S TEXAS RULES OF CIVIL PROCEDURE, PROVIDES: 

"WHERE THE GARNISHEE IS DISCHARGED UPON HIS ANSWER, THE COSTS OF THE
PROCEEDING, INCLUDING A REASONABLE COMPENSATION TO THE GARNISHEE, SHALL
BE TAXED AGAINST THE PLAINTIFF; WHERE THE ANSWER OF THE GARNISHEE HAS
NOT BEEN CONTROVERTED AND THE GARNISHEE IS HELD THEREON, SUCH COSTS
SHALL BE TAXED AGAINST THE DEFENDANT AND INCLUDED IN THE EXECUTION
PROVIDED FOR IN THIS SECTION; WHERE THE ANSWER IS CONTESTED, THE COSTS
SHALL ABIDE THE ISSUE OF SUCH CONTEST." 

THE DISTRICT COURT EVIDENTLY FOUND THERE WAS NO CONTEST BETWEEN THE
INSURANCE COMPANY AND THE OTHER PARTIES, AND THAT THE INSURANCE COMPANY
SHOULD BE DISCHARGED WITH COSTS AND ALLOWANCE OF A REASONABLE
ATTORNEY'S FEE OF $500.  IT, THEREFORE, ORDERED THE CLERK TO ISSUE A
CHECK TO THE INSURANCE COMPANY, PAYABLE OUT OF THE FUNDS PAID INTO THE
COURT BY IT. 

IF THE GARNISHMENT LIEN IS NOT PRIOR TO THE GOVERNMENT LIENS, AND WE
HAVE HELD THAT IT IS NOT, CERTAINLY FEES ALLOWED IN THAT PROCEEDING ARE
NOT PRIOR TO THE GOVERNMENT LIENS, AND THE AUTHORIZATION OF THE PAYMENT
OF THE ATTORNEY'S FEES PRIOR TO THE GOVERNMENT LIENS WAS ERROR.  THE
COSTS AND FEES SHOULD BE ADJUDGED AGAINST THE DEFENDANT, AS PROVIDED BY
RULE 677. 

THE JUDGMENT IS REVERSED. 
..END :




UNITED STATES V. SCOVIL 348 U.S. 218 


NO. 35.  ARGUED NOVEMBER 16, 1954 - DECIDED JANUARY 10, 1955 - 224 S.C.
233, 78 S.E.2D 277, REVERSED. 


A TAX LIEN OF THE UNITED STATES UNDER SEC. 3670 OF THE INTERNAL
REVENUE CODE HELD ENTITLED TO PRIORITY OVER A LANDLORD'S DISTRESS LIEN
UNDER SOUTH CAROLINA LAW, WHERE THE DISTRESS LIEN WAS OBTAINED (BUT NOT
PERFECTED) AFTER THE FEDERAL TAX LIEN HAD ATTACHED BUT BEFORE NOTICE
THEREOF HAD BEEN FILED.  PP. 218-221. 

(A)  SECTION 3672 AFFORDS NO PROTECTION TO THE HOLDER OF A DISTRESS
LIEN, SUCH AS THAT HERE INVOLVED.  P. 220. 

(B)  WHETHER THE DISTRESS LIEN WAS PERFECTED AT THE TIME THE LIEN OF
THE UNITED STATES WAS FILED IS A QUESTION OF FEDERAL LAW.  P. 220. 

(C)  THE DISTRESS LIEN IN THIS CASE WAS NOT PERFECTED IN THE FEDERAL
SENSE AT THE TIME THE LIENS OF THE UNITED STATES WERE FILED.  P. 220. 

(D)  THE LANDLORD IN THIS CASE WAS NOT A "PURCHASER" WITHIN THE
MEANING OF SEC. 3672 OF THE INTERNAL REVENUE CODE, AND THE TAX LIEN OF
THE UNITED STATES WAS NOT INVALID AS TO HIM UNDER THAT SECTION.  PP.
220-221. 

UNITED STATES V. SCOVIL ET AL. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE RELATIVE PRIORITY OF A LANDLORD'S DISTRESS FOR
RENT UNDER THE LAWS OF SOUTH CAROLINA AND A LIEN FOR UNPAID TAXES DUE
THE UNITED STATES.  THE LANDLORD, HEREIN REFERRED TO AS RESPONDENT, ON
APRIL 7, 1952, FILED IN THE COURT OF COMMON PLEAS FOR GREENVILLE
COUNTY, SOUTH CAROLINA, AN AFFIDAVIT SETTING FORTH THAT DAN TASSEY,
INC., WAS INDEBTED TO HIM FOR RENT AND REQUESTING A DISTRESS WARRANT
WHICH ISSUED.  THE MASTER'S REPORT SHOWS ONLY THAT THE LANDLORD FOR
PAST DUE RENT "PROCEEDED ON THE 7TH DAY OF APRIL, 1952 TO DISTRESS UPON
THE ASSETS OF SAID CORPORATION FOR SAID RENT IN ARREARS."  THE RECORD
DOES NOT DISCLOSE WHAT WAS ACTUALLY DONE IN THE DISTRESS PROCEEDINGS. 
SOUTH CAROLINA CODE ANNOTATED, 1952, SEC. 41-151, PROVIDES WHEN THE
AFFIDAVIT OF A LANDLORD IS FILED THE MAGISTRATE MAY ISSUE HIS DISTRESS
WARRANT NAMING THE AMOUNT DUE WITH COSTS AND DELIVER THE WARRANT TO AN
OFFICER FOR SERVICE.  THE OFFICER SHALL FORTHWITH DEMAND PAYMENT (SEC.
41-153), AND IF NOT PAID, HE SHALL DISTRAIN SUFFICIENT PROPERTY ON THE
RENTED PREMISES TO PAY THE AMOUNT, GIVING A LIST OF PROPERTY DISTRAINED
TOGETHER WITH A COPY OF THE DISTRESS WARRANT TO THE TENANT.  THE
DISTRESS MUST BE REASONABLE AS TO AMOUNT OF PROPERTY DISTRAINED, ON
PENALTY OF ACTION FOR DAMAGES (SECS. 41-158, 41-159).  THE TENANT HAS
FIVE DAYS IN WHICH TO PUT UP BOND AND FREE THE PROPERTY FROM THE LIEN
OF DISTRAINT (SEC. 41-160). 

THE NEXT DAY, APRIL 8, 1952, A RECEIVER WAS APPOINTED FOR THE
CORPORATE TAXPAYER-TENANT AS AN INSOLVENT.  ALL OF THE ASSETS OF THE
CORPORATION PASSED TO THE RECEIVER, WHO SOLD THEM AND REALIZED
THEREFROM THE FUND OVER WHICH THIS CONTEST IS WAGED. 

FOR NONPAYMENT OF TAXES DUE, THE COLLECTOR OF INTERNAL REVENUE
RECEIVED THE PROPER ASSESSMENT LISTS IN HIS OFFICE ON MARCH 19, 1951,
MAY 24, 1951, AUGUST 29, 1951, DECEMBER 3, 1951, FEBRUARY 23, 1952, AND
FEBRUARY 28, 1952, AND NOTICE OF THESE LIENS THEREAFTER WAS FILED IN
THE PROPER OFFICE IN GREENVILLE COUNTY, SOUTH CAROLINA, ON APRIL 10,
1952.  SECTION 3671 OF THE INTERNAL REVENUE CODE PROVIDES THAT THE LIEN
FOR SUCH UNPAID TAXES ATTACHES WHEN THE ASSESSMENT LISTS ARE RECEIVED
BY THE COLLECTOR.  THEREFORE, LONG BEFORE THE LANDLORD OBTAINED A
DISTRESS WARRANT THE GOVERNMENT'S LIENS FOR TAXES HAD ATTACHED. 

THE SUPREME COURT OF SOUTH CAROLINA HELD THAT, SINCE THE DISTRESS
WARRANT WAS PERFECTED BEFORE THE RECEIVER WAS APPOINTED, THE LANDLORD'S
DISTRESS LIEN WAS SUPERIOR TO THE UNITED STATES' PRIORITY CREATED BY
SEC. 3466, REVISED STATUTES, 31 U.S.C. SEC. 191.  224 S.C. 233, 78
S.E.2D 277.  WE GRANTED CERTIORARI.  347 U.S. 974.  HOWEVER, WE FIND IT
UNNECESSARY TO PASS UPON THE EFFECT OF THAT SECTION.  WE HOLD THAT THE
GOVERNMENT MUST PREVAIL BECAUSE OF ITS LIENS UNDER SEC. 3670, INTERNAL
REVENUE CODE. 

THE LANDLORD HAD A LIEN OTHER THAN A MORTGAGE, PLEDGE, OR JUDGMENT
LIEN.  AS TO ALL OTHER LIENS, SUCH AS THE DISTRESS LIEN IN THE INSTANT
CASE, SEC. 3672 OF THE INTERNAL REVENUE CODE AFFORDS NO PROTECTION. 
UNITED STATES V. SECURITY TRUST CO., 340 U.S. 47, 51 (CONCURRING
OPINION).  CF. UNITED STATES V. GILBERT ASSOCIATES, INC., 345 U.S. 361,
362-365.  MOREOVER, THE DISTRESS LIEN WAS NOT PERFECTED IN THE FEDERAL
SENSE AT THE TIME THE GOVERNMENT'S LIENS WERE FILED.  SUCH PERFECTION
IS, OF COURSE, A MATTER OF FEDERAL LAW.  UNITED STATES V. WADDILL CO.,
323 U.S. 353; ILLINOIS V. CAMPBELL, 329 U.S. 362, 371.  THE FIVE-DAY
PERIOD SPECIFIED BY SEC. 41-160 OF THE SOUTH CAROLINA CODE HAD NOT
ELAPSED.  DURING THIS TIME THE TENANT-TAXPAYER COULD HAVE REACQUIRED
ANY INTEREST THE LANDLORD MAY HAVE HAD IN HIS PROPERTY BY POSTING BOND
AS PROVIDED BY THE CODE.  THEREFORE, SUCH A LIEN WAS ONLY A CAVEAT OF A
MORE PERFECT LIEN TO COME, AS WE HAVE SO OFTEN HELD IN OTHER CASES. 
UNITED STATES V. SECURITY TRUST CO., SUPRA; UNITED STATES V. GILBERT
ASSOCIATES, INC., SUPRA; UNITED STATES V. WADDILL CO., SUPRA, AT 357
359; NEW YORK V. MACLAY, 288 U.S. 290. 

IT WAS DECIDED IN THE TRIAL COURT AND ARGUED HERE THAT THE LANDLORD
WAS A PURCHASER WITHIN THE MEANING OF SEC. 3672 OF THE INTERNAL REVENUE
CODE AND, THEREFORE, THAT THE GOVERNMENT LIEN WAS INVALID AS TO HIM.  A
PURCHASER WITHIN THE MEANING OF SEC. 3672 USUALLY MEANS ONE WHO
ACQUIRES TITLE FOR A VALUABLE CONSIDERATION IN THE MANNER OF VENDOR AND
VENDEE.  OBVIOUSLY, THE LANDLORD WAS NOT A PURCHASER. 

THE JUDGMENT IS REVERSED. 
..END :














LUMBERMEN'S MUTUAL CASUALTY CO. V. ELBERT 348 U.S. 48 


NO. 11.  ARGUED OCTOBER 14, 1954 - DECIDED DECEMBER 6, 1954 - 201 F.2D
500, AFFIRMED. 


UNDER 28 U.S.C. SEC. 1332(A), A FEDERAL DISTRICT COURT IN LOUISIANA
HAD JURISDICTION OVER THIS SUIT FOR DAMAGES IN EXCESS OF $3,000 BROUGHT
UNDER THE LOUISIANA DIRECT ACTION STATUTE AGAINST THE ALLEGED
WRONGDOER'S INSURER ALONE, WHERE DIVERSITY OF CITIZENSHIP EXISTED
BETWEEN THE COMPLAINANT AND THE DEFENDANT INSURER BUT NOT BETWEEN THE
COMPLAINANT AND THE ALLEGED WRONGDOER.  PP. 49-53. 

(A)  SINCE THE LOUISIANA COURTS HAVE CONSTRUED THE DIRECT ACTION
STATUTE AS CREATING A SEPARATE AND DISTINCT CAUSE OF ACTION AGAINST THE
INSURER WHICH AN INJURED PARTY MAY ELECT IN LIEU OF HIS ACTION AGAINST
THE TORTFEASOR, THE CITIZENSHIP OF THE TORTFEASOR IS DISREGARDED FOR
PURPOSES OF FEDERAL JURISDICTION.  PP. 50-51. 

(B)  NEITHER UNDER THE LOUISIANA STATUTE AND PRACTICE NOR BY FEDERAL
STANDARDS WAS THE TORTFEASOR AN INDISPENSABLE PARTY TO THIS LITIGATION,
AND FAILURE TO JOIN HER AS A DEFENDANT DID NOT DEPRIVE THE FEDERAL
COURT OF JURISDICTION.  PP. 51-52. 

(C)  NOTWITHSTANDING THE DIFFERING STANDARDS OF REVIEW ON APPEAL OF A
JURY VERDICT IN THE LOUISIANA AND FEDERAL COURTS, THE LATTER SHOULD NOT
DECLINE, AS A MATTER OF DISCRETION, TO EXERCISE THEIR JURISDICTION OVER
A SUIT SUCH AS THIS AGAINST THE INSURER ALONE.  PP. 52-53. 

LUMBERMEN'S MUTUAL CASUALTY CO. V. ELBERT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THIS SUIT IN A FEDERAL DISTRICT COURT AGAINST A FOREIGN CORPORATION,
BASED ON DIVERSITY OF CITIZENSHIP, WAS DISMISSED FOR WANT OF
JURISDICTION, 107 F. SUPP. 299, AND A MOTION FOR A REHEARING WAS
OVERRULED, 108 F. SUPP. 157.  THE COURT OF APPEALS REVERSED, 201 F.2D
500, AND DENIED REHEARING, 202 F.2D 744.  THIS COURT GRANTED
CERTIORARI, 347 U.S. 965.  AFFIRMED, P. 53. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE LOUISIANA DIRECT ACTION STATUTE.  THIS COURT
HAS TODAY HAD OCCASION TO TEST THAT STATUTE AGAINST CERTAIN CLAIMS OF
UNCONSTITUTIONALITY, WATSON V. EMPLOYERS LIABILITY ASSURANCE CORP.,
POST, P. 66.  (FN1)  QUESTIONS ARE RAISED HERE INVOLVING THE DIVERSITY
JURISDICTION OF THE FEDERAL COURTS IN CASES ARISING UNDER THE STATUTE. 

RESPONDENT, A CITIZEN OF LOUISIANA, WAS INJURED IN AN AUTOMOBILE
ACCIDENT AT SHREVEPORT, LOUISIANA, ALLEGEDLY BECAUSE OF THE NEGLIGENCE
OF MRS. S.W. BOWEN, ALSO A LOUISIANA CITIZEN.  PETITIONER, AN ILLINOIS
CORPORATION, HAD ISSUED A PUBLIC LIABILITY POLICY TO MR. BOWEN INSURING
HIM AND MEMBERS OF HIS HOUSEHOLD AGAINST CLAIMS ARISING FROM THEIR
NEGLIGENT OPERATION OF THE FAMILY CAR.  THE POLICY WAS APPLIED FOR,
ISSUED, AND DELIVERED WITHIN THE STATE OF LOUISIANA.  PETITIONER WAS
CERTIFICATED TO DO BUSINESS IN LOUISIANA AND HAD, AS A LEGAL
PREREQUISITE THERETO, CONSENTED IN WRITING TO BE SUED DIRECTLY FOR
DAMAGES SUSTAINED IN LOUISIANA ACCIDENTS INVOLVING ITS POLICYHOLDERS. 

THE PERTINENT PORTION OF THE DIRECT ACTION STATUTE PROVIDES: 

"THE INJURED PERSON OR HIS OR HER HEIRS, AT THEIR OPTION, SHALL HAVE
A RIGHT OF DIRECT ACTION AGAINST THE INSURER WITHIN THE TERMS AND
LIMITS OF THE POLICY IN THE PARISH WHERE THE ACCIDENT OR INJURY
OCCURRED OR IN THE PARISH WHERE THE INSURED HAS HIS DOMICILE, AND SAID
ACTION MAY BE BROUGHT AGAINST THE INSURER ALONE OR AGAINST BOTH THE
INSURED AND THE INSURER, JOINTLY AND IN SOLIDO."  LA. REV. STAT., TIT.
22, SEC. 655. 

PURSUANT TO THIS PROVISION, RESPONDENT BROUGHT THIS ACTION AGAINST
PETITIONER IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF LOUISIANA, ALLEGING DIVERSITY OF CITIZENSHIP AND DAMAGES IN EXCESS
OF $3,000.  MRS. BOWEN, THE ALLEGED TORTFEASOR, WAS NOT MADE A
CODEFENDANT.  PETITIONER MOVED TO DISMISS THE COMPLAINT FOR LACK OF
FEDERAL JURISDICTION; THE DISTRICT JUDGE GRANTED THE MOTION.  107 F.
SUPP. 299, 108 F. SUPP. 157.  THE COURT OF APPEALS REVERSED AND
REMANDED THE CASE TO THE DISTRICT COURT FOR TRIAL, 201 F.2D 500, ONE
JUDGE DISSENTING FROM THE DENIAL OF A PETITION FOR REHEARING.  202 F.2D
744.  FROM THAT DECISION, THIS COURT GRANTED CERTIORARI.  347 U.S.
965.  THUS, THE SOLE QUESTION TO BE DECIDED IS WHETHER THE UNITED
STATES DISTRICT COURT IN LOUISIANA HAS JURISDICTION OVER THIS SUIT FOR
DAMAGES BROUGHT UNDER THE DIRECT ACTION STATUTE AGAINST THE WRONGDOER'S
INSURER ALONE, WHERE DIVERSITY OF CITIZENSHIP EXISTS BETWEEN THE
COMPLAINANT AND THE WRONGDOER. 

AS FOLLOWS: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL CIVIL
ACTIONS WHERE THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF
$3,000 EXCLUSIVE OF INTEREST AND COSTS, AND IS BETWEEN: 

"(1)  CITIZENS OF DIFFERENT STATES  ...  ." 

IT IS PETITIONER'S CONTENTION THAT THE "MATTER IN CONTROVERSY" HERE
IS THE UNDERLYING TORT LIABILITY OF THE ALLEGED WRONGDOER.  IF THIS
WERE TRUE, OF COURSE, NO DIVERSITY OF CITIZENSHIP WOULD EXIST BETWEEN
RESPONDENT AND MRS. BOWEN, AS THE REAL PARTY-DEFENDANT IN INTEREST. 
BUT THE LOUISIANA COURTS HAVE DIFFERENTIATED BETWEEN ACTIONS BROUGHT BY
AN INJURED PARTY AGAINST THE INSURER ALONE AND THOSE BROUGHT AGAINST
EITHER THE TORTFEASOR ALONE OR TOGETHER WITH THE INSURER.  IN THE
FORMER ACTION, THE INSURER IS FORECLOSED FROM ASSERTING DEFENSES SUCH
AS COVERTURE, NORMALLY AVAILABLE TO THE TORTFEASOR.  EDWARDS V. ROYALTY
INDEMNITY CO., 182 LA. 171, 161 SO. 191.  SIMILARLY, THE INSURER IS
SEVERELY RESTRICTED IN ADVANCING TECHNICAL DEFENSES BASED UPON THE
TERMS OF THE POLICY, SUCH AS A FAILURE OF NOTICE, WHEN THE INJURED
PARTY BRINGS A DIRECT ACTION.  JACKSON V. STATE FARM MUT. AUTOMOBILE
INS. CO., 211 LA. 19, 29 SO. 2D 177.  WHILE EITHER TYPE OF ACTION
ENCOMPASSES PROOF OF THE TORTFEASOR'S NEGLIGENCE, IN THE SEPARATE SUIT
AGAINST THE INSURER A PLAINTIFF MUST ALSO ESTABLISH LIABILITY UNDER THE
POLICY.  THE LOUISIANA COURTS HAVE CHARACTERIZED THE STATUTE AS
CREATING A SEPARATE AND DISTINCT CAUSE OF ACTION AGAINST THE INSURER
WHICH AN INJURED PARTY MAY ELECT IN LIEU OF HIS ACTION AGAINST THE
TORTFEASOR.  WEST V. MONROE BAKERY, 217 LA. 189, 46 SO. 2D 122; JACKSON
V. STATE FARM MUT. AUTOMOBILE INS. CO., SUPRA. 

PETITIONER IS THEREFORE NOT MERELY A NOMINAL DEFENDANT BUT IS THE
REAL PARTY IN INTEREST HERE.  THIS CONCLUSION TO DISREGARD THE
TORTFEASOR'S CITIZENSHIP IN THE INSTANT CASE FOR PURPOSES OF FEDERAL
JURISDICTION IS FORTIFIED BY CASES HONORING THE STATES'
CHARACTERIZATION OF A GUARDIAN OR OTHER FIDUCIARY AS DETERMINATIVE OF
THE REAL PARTY IN INTEREST IN FEDERAL LITIGATION.  NEW ORLEANS V.
GAINES'S ADMINISTRATOR, 138 U.S. 595; MEXICAN CENTRAL R. CO. V. ECKMAN,
187 U.S. 429.  THERE IS EVEN GREATER JUSTIFICATION FOR DISREGARDING THE
TORTFEASOR'S CITIZENSHIP HERE THAN FOR DISREGARDING THE CITIZENSHIP OF
A BENEFICIARY SINCE THE INSURER - UNLIKE A FIDUCIARY - HAS A DIRECT
FINANCIAL INTEREST IN THE OUTCOME OF THIS LITIGATION. 

PETITIONER NEXT ASSERTS THAT THE TORTFEASOR IS AN INDISPENSABLE PARTY
TO THIS LITIGATION, AND THAT FAILURE TO JOIN HER AS A DEFENDANT
DEPRIVES THE FEDERAL COURT OF JURISDICTION.  CLEARLY UNDER THE
LOUISIANA STATUTE AND PRACTICE THE ARGUMENT HAS NO MERIT.  (FN2)  AND
THE CIRCUMSTANCES WHICH HAVE LED THE FEDERAL COURTS TO FINDINGS OF
INDISPENSABILITY ARE NOT PRESENT HERE.  IN SHIELDS V. BARROW, 17 HOW. 
130, 139, INDISPENSABLE PARTIES WERE DEFINED AS "PERSONS WHO NOT ONLY
HAVE AN INTEREST IN THE CONTROVERSY, BUT AN INTEREST OF SUCH A NATURE
THAT A FINAL DECREE CANNOT BE MADE WITHOUT EITHER AFFECTING THAT
INTEREST, OR LEAVING THE CONTROVERSY IN SUCH A CONDITION THAT ITS FINAL
TERMINATION MAY BE WHOLLY INCONSISTENT WITH EQUITY AND GOOD
CONSCIENCE."  (FN3)  THE TORTFEASOR IN A LOUISIANA DIRECT ACTION
AGAINST THE INSURER IS NOT SUCH A PERSON.  THE STATE HAS CREATED AN
OPTIONAL RIGHT TO PROCEED DIRECTLY AGAINST THE INSURER; BY BRINGING THE
ACTION AGAINST PETITIONER, RESPONDENT HAS APPARENTLY ABANDONED HER
ACTION AGAINST THE TORTFEASOR.  (FN4)  SEE MILLER V. COMMERCIAL
STANDARD INS. CO., 199 LA. 515, 526, 6 SO. 2D 646, 649.  THUS A
COMPLETE DISPOSITION OF THE ENTIRE CLAIM MAY BE MADE IN THIS ONE
ACTION, WITHOUT INJUSTICE TO ANY OF THE PARTICIPANTS. 

FINALLY, PETITIONER CONTENDS THAT THE FEDERAL COURTS SHOULD DECLINE,
AS A MATTER OF DISCRETION, TO EXERCISE THEIR JURISDICTION OVER SUITS
AGAINST AN INSURER ALONE.  THIS ARGUMENT IS BASED UPON THE DIFFERING
STANDARDS OF REVIEW ON APPEAL OF A JURY VERDICT IN THE LOUISIANA AND
FEDERAL COURTS.  (FN5)  PETITIONER RELIES UPON BURFORD V. SUN OIL CO.,
319 U.S. 315, AS AUTHORITY FOR THE SUGGESTED DISCRETIONARY REFUSAL TO
EXERCISE JURISDICTION.  (FN6)  BUT IN BURFORD, JURISDICTION WAS
DECLINED TO AVOID A POTENTIAL INTERFERENCE WITH A STATE'S
ADMINISTRATIVE POLICY-MAKING PROCESS, A CONSIDERATION NOT PRESENT
HERE.  MOREOVER, TRADITIONAL EQUITABLE AUTHORITY, NOT AVAILABLE HERE,
WAS RELIED UPON TO JUSTIFY THE HOLDING. 

THE LANGUAGE OF THE CONGRESSIONAL GRANT OF JURISDICTION TO THE LOWER
COURTS, 28 U.S.C. SEC. 1332(A), IS CLEAR, AND THIS CASE SEEMS TO US TO
FALL SQUARELY WITHIN THE PROVISION.  IN LOUISIANA THE PRACTICE OF
BRINGING DIRECT ACTIONS IN THE FEDERAL COURTS HAS LONG BEEN
RECOGNIZED.  SEE, E.G., NEW AMSTERDAM CASUALTY CO. V. SOILEAU, 167 F.2D
767 (C.A. 5TH CIR.), CERT. DENIED, 335 U.S. 822; BANKERS INDEMNITY INS.
CO. V. GREEN, 181 F.2D 1 (C.A. 5TH CIR.); BELANGER V. GREAT AMERICAN
IND. CO., 188 F.2D 196 (C.A. 5TH CIR.).  NEITHER FEDERAL NOR LOUISIANA
LAW SUGGESTS ANY REASON TO DISTURB THIS PRACTICE.  THE DECISION OF THE
COURT OF APPEALS IS AFFIRMED. 

FN1  SEE ALSO MCDOWELL V. NATIONAL SURETY CORP., 68 SO. 2D 189,
APPEAL DISMISSED, 347 U.S. 995. 

FN2  TWO PROPOSALS FOR COMPULSORY JOINDER OF INSURED AND INSURER AS
PARTY-DEFENDANTS HAVE FAILED OF PASSAGE IN THE LOUISIANA LEGISLATURE
WITHIN RECENT YEARS.  SEE LA. SENATE BILL 73, 1952 SESSION; LA. HOUSE
BILL 600, 1954 SESSION. 

FN3  SEE ALSO 3 MOORE'S FEDERAL PRACTICE (2D ED. 1948), PARA. 19.07
ET SEQ.; NOTE, INDISPENSABLE PARTIES IN THE FEDERAL COURTS, 65 HARV. L.
REV. 1050 (1952). 

FN4  NO CASE HAS BEEN CITED, ALTHOUGH THERE HAS BEEN NEARLY A QUARTER
CENTURY OF EXPERIENCE UNDER THE DIRECT ACTION STATUTE, WHERE AN INJURED
PARTY HAS ATTEMPTED TO BRING SUIT AGAINST THE TORTFEASOR FOLLOWING AN
UNSUCCESSFUL SUIT AGAINST THE INSURER IN EITHER STATE OR FEDERAL
COURTS. 

FN5  APPELLATE REVIEW IN THE FEDERAL COURTS IS, OF COURSE, LIMITED
ULTIMATELY BY THE SEVENTH AMENDMENT.  PARSONS V. BEDFORD, BREEDLOVE &
ROBESON, 3 PET. 433.  IN LOUISIANA, APPELLATE REVIEW IN CIVIL CASES
EXTENDS TO BOTH MATTERS OF LAW AND FACT.  SEE LA. CONST., ART. 7, SECS.
10, 29. 

FN6  SEE ALSO PENNSYLVANIA V. WILLIAMS, 294 U.S. 176; GREAT LAKES
DREDGE & DOCK CO. V. HUFFMAN, 319 U.S. 293; ALABAMA PUBLIC SERVICE
COMMISSION V. SOUTHERN R. CO., 341 U.S. 341, CITED IN THE DISSENTING
OPINION BELOW.  SEE MEREDITH V. WINTER HAVEN, 320 U.S. 228, 234, 236,
237. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

NOT DEEMING IT APPROPRIATE NOW TO QUESTION MEREDITH V. WINTER HAVEN,
320 U.S. 228, I JOIN THE COURT'S OPINION.  BUT OUR HOLDING RESULTS IN
SUCH A GLARING PERVERSION OF THE PURPOSE TO WHICH THE ORIGINAL GRANT OF
DIVERSITY JURISDICTION WAS DIRECTED THAT IT OUGHT NOT TO GO WITHOUT
COMMENT, AS FURTHER PROOF OF THE MOUNTING MISCHIEF INFLICTED ON THE
FEDERAL JUDICIAL SYSTEM BY THE UNJUSTIFIABLE CONTINUANCE OF DIVERSITY
JURISDICTION. 

THE STUFF OF DIVERSITY JURISDICTION IS STATE LITIGATION.  THE
AVAILABILITY OF FEDERAL TRIBUNALS FOR CONTROVERSIES CONCERNING MATTERS
WHICH IN THEMSELVES ARE OUTSIDE FEDERAL POWER AND EXCLUSIVELY WITHIN
STATE AUTHORITY, IS THE ESSENCE OF A JURISDICTION SOLELY RESTING ON THE
FACT THAT A PLAINTIFF AND A DEFENDANT ARE CITIZENS OF DIFFERENT
STATES.  THE POWER OF CONGRESS TO CONFER SUCH JURISDICTION WAS BASED ON
THE DESIRE OF THE FRAMERS TO ASSURE OUT-OF-STATE LITIGANTS COURTS FREE
FROM SUSCEPTIBILITY TO POTENTIAL LOCAL BIAS.  THAT THE SUPPOSED
JUSTIFICATION FOR THIS FEAR WAS NOT ROOTED IN WEIGHTY EXPERIENCE IS
ATTESTED BY THE FACT THAT SO ARDENT A NATIONALIST AS MARSHALL GAVE THAT
PROPOSAL OF THE PHILADELPHIA CONVENTION ONLY TEPID SUPPORT IN THE
VIRGINIA CONVENTION.  3 ELLIOT'S DEBATES 556 (1891).  BUT IN ANY EVENT,
WHATEVER "FEARS AND APPREHENSIONS"* WERE ENTERTAINED BY THE FRAMERS AND
RATIFIERS, THERE WAS FEAR THAT PAROCHIAL PREJUDICE BY THE CITIZENS OF
ONE STATE TOWARD THOSE OF ANOTHER, AS WELL AS TOWARD ALIENS, WOULD LEAD
TO UNJUST TREATMENT OF CITIZENS OF OTHER STATES AND FOREIGN COUNTRIES. 

*"HOWEVER TRUE THE FACT MAY BE, THAT THE TRIBUNALS OF THE STATES WILL
ADMINISTER JUSTICE AS IMPARTIALLY AS THOSE OF THE NATION, TO PARTIES OF
EVERY DESCRIPTION, IT IS NOT LESS TRUE THAT THE CONSTITUTION ITSELF
EITHER ENTERTAINS APPREHENSIONS ON THIS SUBJECT, OR VIEWS WITH SUCH
INDULGENCE THE POSSIBLE FEARS AND APPREHENSIONS OF SUITORS, THAT IT HAS
ESTABLISHED NATIONAL TRIBUNALS FOR THE DECISION OF CONTROVERSIES
BETWEEN ALIENS AND A CITIZEN, OR BETWEEN CITIZENS OF DIFFERENT
STATES."  BANK OF THE UNITED STATES V. DEVEAUX, 5 CRANCH 61, 87. 

SUCH WAS THE REASON FOR ENABLING A CITIZEN OF ONE STATE TO PRESS A
CLAIM OR STAND ON A DEFENSE, WHOLLY STATE-CREATED, AGAINST A CITIZEN OF
ANOTHER IN A FEDERAL COURT OF THE LATTER'S STATE.  THE ABUSES TO WHICH
THIS OPPORTUNITY WAS PUT WHEN, MORE THAN A HUNDRED YEARS AGO,
CORPORATIONS BEGAN THEIR TRANSFORMING INFLUENCE ON AMERICAN ECONOMIC
AND SOCIAL LIFE ARE FAMILIAR HISTORY.  THEIR CLASSIC EXPOSITION IN
GERARD C. HENDERSON'S POSITION OF FOREIGN CORPORATIONS IN AMERICAN
CONSTITUTIONAL LAW HAS LOST NEITHER ITS VIVIDNESS NOR FORCE DURING THE
INTERVENING DECADES.  THE SHORT OF THE MATTER IS THAT BY RESORTING TO
THE FEDERAL COURTS THE OUT-OF-STATE CORPORATION SOUGHT TO GAIN, AND
MUCH TOO FREQUENTLY DID, AN ADVANTAGE AS AGAINST THE LOCAL CITIZEN. 
INSTEAD OF PROTECTING OUT-OF-STATE LITIGANTS AGAINST DISCRIMINATION BY
STATE COURTS, THE EFFECT OF DIVERSITY JURISDICTION WAS DISCRIMINATION
AGAINST CITIZENS OF THE STATE IN FAVOR OF LITIGANTS FROM WITHOUT THE
STATE. 

DIVERSITY JURISDICTION AROUSED OPPOSITION FROM ITS VERY INCEPTION,
BUT THE MODERN MANIFESTATION OF THESE EVILS THROUGH CORPORATE
LITIGATION GATHERED INCREASING HOSTILITY AND LED TO REPEATED
CONGRESSIONAL ATTEMPTS AT RESTRICTION AND EVENTUALLY OF ABOLITION.  THE
PROLIFERATION OF THE DOCTRINE OF SWIFT V. TYSON, 16 PET. 1, BROUGHT
INTO LURID LIGHT THE DISCRIMINATORY DISTORTIONS TO WHICH DIVERSITY
JURISDICTION COULD BE SUBVERTED BY JUDICIAL SANCTION OF PROFESSIONAL
ASTUTENESS.  THE GROWING SENSE OF THE INJUSTICE OF THESE DEVELOPMENTS
AND ITS SERIOUS HURT TO THE PRESTIGE OF THE FEDERAL COURTS IN THE
EXERCISE OF THEIR ESSENTIAL JURISDICTION, CAME TO A HEAD WITH THE
DECISION IN BLACK & WHITE TAXICAB & TRANSFER CO. V. BROWN & YELLOW
TAXICAB CO., 276 U.S. 518.  THE FEDERAL COURTS BECAME THE TARGET OF
ACRIMONIOUS POLITICAL CONTROVERSY.  IN THE COURSE OF OUR HISTORY THIS
WAS NOT THE FIRST TIME THAT DIVERSITY JURISDICTION PLAYED THE FEDERAL
COURTS AN ILL TURN.  AGAIN AND AGAIN IN THE 60'S AND THE 70'S AND THE
80'S SUCH A CONFLICT HAD FLARED UP, BUT IN THE EARLIER PERIODS IT WAS
BY WAY OF BEING A CONFLICT BETWEEN THE FINANCIAL EAST AND THE AGRARIAN
WEST.  THIS TIME PRESIDENT HOOVER'S ATTORNEY GENERAL AND SENATOR GEORGE
W. NORRIS OF NEBRASKA UNITED AGAINST THE DISCLOSED EVILS OF DIVERSITY
JURISDICTION. 

ATTORNEY GENERAL MITCHELL URGED ON CONGRESS A MEASURE WHEREBY A
CORPORATION SHOULD BE DEEMED, FOR DIVERSITY PURPOSES, A CITIZEN OF ANY
STATE IN WHICH IT CARRIES ON BUSINESS "AS RESPECT ALL SUITS BROUGHT
WITHIN THAT STATE BETWEEN ITSELF AND RESIDENTS THEREOF AND ARISING OUT
OF THE BUSINESS CARRIED ON IN SUCH STATE."  HEARINGS BEFORE
SUBCOMMITTEE OF SENATE COMMITTEE ON THE JUDICIARY ON S. 937, S. 939 AND
S. 3243, 72D CONG., 1ST SESS. 4.  AT THE SAME TIME, THE SENATE
JUDICIARY COMMITTEE, UNDER THE LEADERSHIP OF CHAIRMAN NORRIS, WENT
FURTHER.  TWICE IT REPORTED BILLS FOR THE ABOLITION OF DIVERSITY
JURISDICTION.  S. REP. NO. 691, 71ST CONG., 2D SESS.; S. REP. NO. 530,
72D CONG., 1ST SESS.  LEGISLATIVE ATTEMPTS AT CORRECTION HAVE THUS FAR
FAILED.  BUT BY OVERRULING THE DOCTRINE OF SWIFT V. TYSON, DESPITE ITS
CENTURY-OLD CREDENTIALS, THIS COURT UPROOTED THE MOST NOXIOUS WEEDS
THAT HAD GROWN AROUND DIVERSITY JURISDICTION.  WHAT WITH THE INCREASING
PERMEATION OF NATIONAL FEELING AND THE MOBILITY OF MODERN LIFE, LITTLE
EXCUSE IS LEFT FOR DIVERSITY JURISDICTION, NOW THAT ERIE RAILROAD CO.
V. TOMPKINS, 304 U.S. 64, HAS PUT A STOP TO THE UNWARRANTED FREEDOM OF
FEDERAL COURTS TO FASHION RULES OF LOCAL LAW IN DEFIANCE OF LOCAL LAW. 

A LEGAL DEVICE LIKE THAT OF FEDERAL DIVERSITY JURISDICTION WHICH IS
INHERENTLY, AS I BELIEVE IT TO BE, NOT FOUNDED IN REASON, OFFERS
CONSTANT TEMPTATION TO NEW ABUSES.  THIS CASE IS AN INSTANCE.  HERE WE
HAVE NOT AN OUT-OF-STATE LITIGANT RESORTING TO A FEDERAL COURT TO BE
SURE OF OBTAINING FOR HIMSELF THE SAME TREATMENT WHICH STATE COURTS
METE OUT TO THEIR OWN CITIZENS.  HERE WE HAVE A LOUISIANA CITIZEN
RESORTING TO THE FEDERAL COURT IN LOUISIANA IN ORDER TO AVOID
CONSEQUENCES OF THE LOUISIANA LAW BY WHICH EVERY LOUISIANA CITIZEN IS
BOUND WHEN SUING ANOTHER LOUISIANA CITIZEN.  IF FLORENCE R. ELBERT, THE
PRESENT PLAINTIFF, HAD TO SUE THE OWNER OF THE OFFENDING AUTOMOBILE
WHICH CAUSED HER INJURY, OR IF SHE WERE SUING AN INSURANCE COMPANY
CHARTERED BY LOUISIANA, SHE WOULD HAVE NO CHOICE BUT TO GO, LIKE EVERY
OTHER LOUISIANA PLAINTIFF WHO SUES A FELLOW CITIZEN OF LOUISIANA, TO A
LOUISIANA STATE COURT AND RECEIVE THE LAW AS ADMINISTERED BY THE
LOUISIANA COURTS.  BUT BY THE FORTUITOUS CIRCUMSTANCE THAT THIS
LOUISIANA LITIGANT COULD SUE DIRECTLY AN OUT-OF-STATE INSURANCE
COMPANY, SHE CAN AVOID HER AMENABILITY TO LOUISIANA LAW.  IN CONCRETE
TERMS, SHE CAN CASH IN ON THE LAW GOVERNING JURY TRIALS IN THE FEDERAL
COURTS, WITH ITS RESTRICTIVE APPELLATE REVIEW OF JURY VERDICTS, AND
ESCAPE THE ROOTED JURISPRUDENCE OF LOUISIANA LAW IN REVIEWING JURY
VERDICTS.  THERE IS, TO BE SURE, A KIND OF IRONY FOR CORPORATE
DEFENDANTS TO DISCOVER THAT TWO CAN PLAY AT THE GAME OF WORKING, TO USE
A COLLOQUIAL TERM, THE PERVERSE POTENTIALITIES OF DIVERSITY
JURISDICTION.  BUT IT IS NOT THE LESS UNREASON AND NO GREATER FAIRNESS
FOR A CITIZEN OF THE FORUM TO GAIN A DISCRIMINATORY ADVANTAGE OVER
FELLOW CITIZENS OF HIS STATE, THAN IT IS FOR AN OUT-OF-STATE CITIZEN TO
SECURE MORE THAN THE SAME TREATMENT GIVEN LOCAL CITIZENS, BY GOING TO A
FEDERAL COURT FOR THE ADJUDICATION OF STATE-CREATED RIGHTS. 

THIS CASE, HOWEVER, STIRS ANEW AN ISSUE THAT CUTS DEEPER THAN THE
NATURAL SELFISHNESS OF LITIGANTS TO EXPLOIT THE LAW'S WEAKNESSES.  MY
CONCERN IS WITH THE BEARING OF DIVERSITY JURISDICTION ON THE EFFECTIVE
FUNCTIONING OF THE FEDERAL JUDICIARY.  CIRCUIT JUDGE RIVES AGREED WITH
THE DISTRICT JUDGE THAT THIS KIND OF ACTION HAS NO BUSINESS IN A
FEDERAL COURT.  IN DISSENTING FROM DENIAL OF THE PETITION FOR
REHEARING, HE STATED WITH IMPRESSIVE BLUNTNESS THE EFFECT ON THE WORK
OF THE FEDERAL AND STATE COURTS IN ALLOWING DIVERSITY JURISDICTION TO
BE PUT TO SUCH PURPOSES: 

"ON THE ORIGINAL HEARING, I HAD STRONG MISGIVINGS WHICH WERE
SUBMITTED TO MY BROTHERS, BUT I WAS UNABLE TO CRYSTALLIZE MY THINKING
CLEARLY ENOUGH TO JUSTIFY A DISSENT.  CONTINUED CONSIDERATION OF THE
QUESTION HAS CONVINCED ME THAT THERE IS SOMETHING FUNDAMENTALLY WRONG
WITH OUR LEGAL THEORIES WHEN THEY PERMIT THE GREAT BULK OF THE CASUALTY
DAMAGE SUIT LITIGATION IN LOUISIANA TO CLOG THE DOCKETS OF THE FEDERAL
COURTS, WHILE, I UNDERSTAND, SOME OF THE STATE JUDGES ACTUALLY DO NOT
HAVE ENOUGH LITIGATION TO KEEP THEM BUSY."  ELBERT V. LUMBERMEN'S MUT.
CAS. CO., 202 F.2D 744. 

IN LOUISIANA, PLAINTIFFS IN NEGLIGENCE SUITS HAVE SUDDENLY FOUND THE
FEDERAL COURTS THEIR PROTECTORS AND INSURANCE COMPANIES HAVE DISCOVERED
THE VIRTUES OF THE STATE COURTS.  IN NEW YORK, INSURANCE COMPANIES RUN
TO COVER IN THE FEDERAL COURTS AND PLAINTIFFS FEEL OUTRAGED BY THE
PROCESS OF ATTRITION IN ENFORCING THEIR CLAIMS, DUE TO A DELAY OF FROM
THREE TO FOUR YEARS BEFORE A CASE CAN COME TO TRIAL.  AS TO BOTH
SITUATIONS, THE VICE IS THE AVAILABILITY OF DIVERSITY JURISDICTION. 
WHAT IS TRUE OF NEW YORK IS TRUE, IN VARYING DEGREES, OF EVERY BIG
CENTER. 

DIVERSITY CASES HAVE LONG CONSTITUTED A CONSIDERABLE PORTION OF ALL
CIVIL CASES FILED IN THE FEDERAL COURTS.  FOR THE LAST TEN YEARS THE
PROPORTION OF DIVERSITY CASES HAS GREATLY INCREASED, SO THAT IT IS SAFE
TO SAY THAT DIVERSITY CASES ARE NOW TAKING AT LEAST HALF OF THE TIME
THAT THE DISTRICT COURTS ARE DEVOTING TO CIVIL CASES.  (THIS IS THE
CONCLUSION OF THE DIVISION OF PROCEDURAL STUDIES AND STATISTICS OF THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.)  THE RISE IN MOTOR
VEHICLE REGISTRATION FROM 32 MILLION IN 1940 TO 56 MILLION IN 1953 HAS
INEVITABLY BEEN REFLECTED IN INCREASING RESORT TO DIVERSITY
JURISDICTION IN ORDINARY NEGLIGENCE SUITS.  THE CONSEQUENCES THAT THIS
ENTAILS FOR THE WHOLE FEDERAL JUDICIAL SYSTEM - FOR INCREASE IN THE
BUSINESS OF THE DISTRICT COURTS MEANS INCREASE IN THE BUSINESS OF THE
COURTS OF APPEALS AND A SWELLING OF THE PETITIONS FOR CERTIORARI HERE -
CANNOT BE MET BY A STEADY INCREASE IN THE NUMBER OF FEDERAL JUDGES. 
THE BUSINESS OF COURTS, PARTICULARLY OF THE FEDERAL COURTS, IS
DRASTICALLY UNLIKE THE BUSINESS OF FACTORIES.  THE FUNCTION AND ROLE OF
THE FEDERAL COURTS AND THE NATURE OF THEIR JUDICIAL PROCESS INVOLVE
IMPALPABLE FACTORS, SUBTLE BUT FAR-REACHING, WHICH CANNOT BE SATISFIED
BY ENLARGING THE JUDICIAL PLANT.  A RECENT REPORT OF THE HOUSE
COMMITTEE ON THE JUDICIARY PROPOSED AN INCREASE OF THE REQUIRED AMOUNT
IN CONTROVERSY FOR JURISDICTION OF THE FEDERAL COURTS FROM $3,000 TO
$10,000.  REFERRING TO THE CONSEQUENCES OF "A TREMENDOUS INCREASE IN
THE NUMBER OF CASES FILED," IT FELT THAT APPOINTMENT OF ADDITIONAL
JUDGES "HAS DONE MUCH TO ALLEVIATE THE PROBLEM" BUT RECOGNIZED THAT
MERELY MULTIPLYING JUDGES IS NO SOLUTION.  SEE H.R. REP. NO. 1506, 82D
CONG., 2D SESS. 1.  IN THE FARTHEST REACHES OF THE PROBLEM A STEADY
INCREASE IN JUDGES DOES NOT ALLEVIATE; IN MY JUDGMENT, IT IS BOUND TO
DEPRECIATE THE QUALITY OF THE FEDERAL JUDICIARY AND THEREBY ADVERSELY
TO AFFECT THE WHOLE SYSTEM. 

SINCE DIVERSITY JURISDICTION IS INCREASINGLY THE BIGGEST SOURCE OF
THE CIVIL BUSINESS OF THE DISTRICT COURTS, THE CONTINUANCE OF THAT
JURISDICTION WILL NECESSARILY INVOLVE INFLATION OF THE NUMBER OF THE
DISTRICT JUDGES.  THIS IN TURN WILL RESULT, BY ITS OWN GRESHAM'S LAW,
IN A DEPRECIATION OF THE JUDICIAL CURRENCY AND THE CONSEQUENT
IMPAIRMENT OF THE PRESTIGE AND OF THE EFFICACY OF THE FEDERAL COURTS. 
MADISON BELIEVED THAT CONGRESS WOULD RETURN TO THE STATE COURTS
JUDICIAL POWER ENTRUSTED TO THE FEDERAL COURTS "WHEN THEY FIND THE
TRIBUNALS OF THE STATES ESTABLISHED ON A GOOD FOOTING."  3 ELLIOT'S
DEBATES 536 (1891).  CAN IT FAIRLY BE SAID THAT STATE TRIBUNALS ARE NOT
NOW ESTABLISHED ON A SUFFICIENTLY "GOOD FOOTING" TO ADJUDICATE STATE
LITIGATION THAT ARISES BETWEEN CITIZENS OF DIFFERENT STATES, INCLUDING
THE ARTIFICIAL CORPORATE CITIZENS, WHEN THEY ARE THE ONLY RESORT FOR
THE MUCH LARGER VOLUME OF THE SAME TYPE OF LITIGATION BETWEEN THEIR OWN
CITIZENS?  CAN THE STATE TRIBUNALS NOT YET BE TRUSTED TO METE OUT
JUSTICE TO NON-RESIDENT LITIGANTS; SHOULD RESIDENT LITIGANTS NOT BE
COMPELLED TO TRUST THEIR OWN STATE TRIBUNALS?  IN ANY EVENT, IS IT
SOUND PUBLIC POLICY TO WITHDRAW FROM THE INCENTIVES AND ENERGIES FOR
REFORMING STATE TRIBUNALS, WHERE SUCH REFORM IS NEEDED, THE INTERESTS
OF INFLUENTIAL GROUPS WHO THROUGH DIVERSITY LITIGATION ARE NOW ENABLED
TO AVOID STATE COURTS? 
..END :






















CASTLE V. HAYES FREIGHT LINES, INC. 348 U.S. 61 


NO. 44.  ARGUED NOVEMBER 17, 1954 - DECIDED DECEMBER 6, 1954 - 2 ILL. 2D
58, 117 N.E.2D 106, AFFIRMED. 


WHEN AN INTERSTATE MOTOR CARRIER HOLDS A CERTIFICATE OF CONVENIENCE
AND NECESSITY ISSUED BY THE INTERSTATE COMMERCE COMMISSION UNDER THE
FEDERAL MOTOR CARRIER ACT, A STATE MAY NOT SUSPEND THE CARRIER'S RIGHT
TO USE THE STATE'S HIGHWAYS IN ITS INTERSTATE OPERATIONS, AS PUNISHMENT
FOR REPEATED VIOLATIONS OF A STATE LAW REGULATING THE WEIGHT OF LOADS
OF FREIGHT THAT MAY BE CARRIED ON THE STATE'S HIGHWAYS.  PP. 62-65. 

(A)  PUNISHMENT OF THE CARRIER FOR VIOLATIONS OF THE STATE'S ROAD
REGULATIONS DOES NOT JUSTIFY DISRUPTION OF A FEDERALLY AUTHORIZED
ACTIVITY.  P. 64. 

(B)  THE PROVISION OF THE FEDERAL ACT WHICH LEAVES STATES FREE TO
REGULATE THE SIZES AND WEIGHTS OF MOTOR VEHICLES DOES NOT AUTHORIZE THE
STATES TO REVOKE OR SUSPEND THE OPERATING RIGHTS OF INTERSTATE MOTOR
CARRIERS FOR VIOLATIONS OF SUCH REGULATIONS.  P. 64. 

(C)  THE STATE'S LACK OF POWER TO SUSPEND A MOTOR CARRIER'S
INTERSTATE OPERATIONS DOES NOT LEAVE THE STATE WITHOUT APPROPRIATE
REMEDIES FOR THE CARRIER'S VIOLATIONS OF STATE LAWS.  PP. 64-65. 

CASTLE, ATTORNEY GENERAL, ET AL. V. HAYES FREIGHT LINES, INC. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES IMPORTANT QUESTIONS CONCERNING THE POWER OF STATES
TO BAR INTERSTATE MOTOR CARRIERS FROM USE OF STATE ROADS AS PUNISHMENT
FOR REPEATED VIOLATIONS OF STATE HIGHWAY REGULATIONS.  THE RESPONDENT
HAYES FREIGHT LINES, INC. IS SUCH A CARRIER TRANSPORTING GOODS TO AND
FROM MANY POINTS IN ILLINOIS AND SEVEN OTHER STATES.  (FN1)  THIS
EXTENSIVE INTERSTATE BUSINESS IS DONE UNDER A CERTIFICATE OF
CONVENIENCE AND NECESSITY ISSUED BY THE INTERSTATE COMMERCE COMMISSION
UNDER AUTHORITY OF THE FEDERAL MOTOR CARRIER ACT.  (FN2)  HAYES ALSO
DOES AN INTRASTATE CARRIER BUSINESS IN ILLINOIS UNDER A CERTIFICATE
ISSUED BY STATE AUTHORITIES.  ILLINOIS HAS A STATUTE WHICH LIMITS THE
WEIGHT OF FREIGHT THAT CAN BE CARRIED IN COMMERCIAL TRUCKS OVER
ILLINOIS HIGHWAYS; THE SAME STATUTE ALSO PROVIDES FOR A BALANCED
DISTRIBUTION OF FREIGHT LOADS IN RELATION TO THE TRUCK'S AXLES.  (FN3)
REPEATED VIOLATIONS OF THESE PROVISIONS BY TRUCKS OF A CARRIER ARE MADE
PUNISHABLE BY TOTAL SUSPENSION OF THE CARRIER'S RIGHT TO USE ILLINOIS
STATE HIGHWAYS FOR PERIODS OF NINETY DAYS AND ONE YEAR.  (FN4)  THIS
ACTION WAS BROUGHT IN A STATE COURT TO RESTRAIN ILLINOIS OFFICIALS FROM
PROSECUTING HAYES AS A REPEATED VIOLATOR.  THE STATE SUPREME COURT HELD
THAT THE PUNISHMENT OF SUSPENSION PROVIDED BY THE STATE STATUTE COULD
NOT BE IMPOSED ON THE INTERSTATE OPERATIONS OF THE RESPONDENT HAYES. 
SUCH A STATE SUSPENSION OF INTERSTATE TRANSPORTATION, IT WAS DECIDED,
WOULD CONFLICT WITH THE FEDERAL MOTOR CARRIER ACT WHICH IS THE SUPREME
LAW OF THE LAND.  (FN5)  WE GRANTED THE STATE'S PETITION FOR
CERTIORARI.  347 U.S. 1009. 

CONGRESS IN THE MOTOR CARRIER ACT ADOPTED A COMPREHENSIVE PLAN FOR
REGULATING THE CARRIAGE OF GOODS BY MOTOR TRUCK IN INTERSTATE
COMMERCE.  THE FEDERAL PLAN OF CONTROL WAS SO ALL-EMBRACING THAT FORMER
POWER OF STATES OVER INTERSTATE MOTOR CARRIERS WAS GREATLY REDUCED.  NO
POWER AT ALL WAS LEFT IN STATES TO DETERMINE WHAT CARRIERS COULD OR
COULD NOT OPERATE IN INTERSTATE COMMERCE.  EXCLUSIVE POWER OF THE
FEDERAL GOVERNMENT TO MAKE THIS DETERMINATION IS SHOWN BY SEC. 306 OF
49 U.S.C. WHICH DESCRIBES THE CONDITIONS UNDER WHICH THE INTERSTATE
COMMERCE COMMISSION CAN ISSUE CERTIFICATES OF CONVENIENCE AND
NECESSITY.  AND SEC. 312 OF THE SAME TITLE PROVIDES THAT ALL
CERTIFICATES, PERMITS OR LICENSES ISSUED BY THE COMMISSION "SHALL
REMAIN IN EFFECT UNTIL SUSPENDED OR TERMINATED AS HEREIN PROVIDED." 
BUT IN ORDER TO PROVIDE STABILITY FOR OPERATING RIGHTS OF CARRIERS,
CONGRESS PLACED WITHIN VERY NARROW LIMITS THE COMMISSION'S POWER TO
SUSPEND OR REVOKE AN OUTSTANDING CERTIFICATE.  NO CERTIFICATE IS TO BE
REVOKED, SUSPENDED OR CHANGED UNTIL AFTER A HEARING AND A FINDING THAT
A CARRIER HAS WILLFULLY FAILED TO COMPLY WITH THE PROVISIONS OF THE
MOTOR CARRIER ACT OR WITH REGULATIONS PROPERLY PROMULGATED UNDER IT.
(FN6)  UNDER THESE CIRCUMSTANCES, IT WOULD BE ODD IF A STATE COULD TAKE
ACTION AMOUNTING TO A SUSPENSION OR REVOCATION OF AN INTERSTATE
CARRIER'S COMMISSION-GRANTED RIGHT TO OPERATE.  CF. HILL V. FLORIDA,
325 U.S. 538.  IT CANNOT BE DOUBTED THAT SUSPENSION OF THIS COMMON
CARRIER'S RIGHT TO USE ILLINOIS HIGHWAYS IS THE EQUIVALENT OF A PARTIAL
SUSPENSION OF ITS FEDERALLY GRANTED CERTIFICATE.  THE HIGHWAYS OF
ILLINOIS ARE NOT ONLY USED BY HAYES TO TRANSPORT INTERSTATE GOODS TO
AND FROM THAT STATE BUT ARE ALSO USED AS CONNECTING LINKS TO POINTS IN
OTHER STATES WHICH THE COMMISSION HAS AUTHORIZED HAYES TO SERVE. 
CONSEQUENTLY IF THE NINETY-DAY OR THE ONE-YEAR SUSPENSION SHOULD BECOME
EFFECTIVE, THE CARRIAGE OF INTERSTATE GOODS INTO ILLINOIS AND OTHER
STATES WOULD BE SERIOUSLY DISRUPTED. 

THAT ILLINOIS SEEKS TO PUNISH HAYES FOR VIOLATIONS OF ITS ROAD
REGULATIONS DOES NOT JUSTIFY THIS DISRUPTION OF FEDERALLY AUTHORIZED
ACTIVITIES.  A STATE'S REGULATION OF WEIGHT AND DISTRIBUTION OF LOADS
CARRIED IN INTERSTATE TRUCKS DOES NOT ITSELF CONFLICT WITH THE FEDERAL
ACT.  THE REASON FOR THIS AS POINTED OUT IN MAURER V. HAMILTON, 309
U.S. 598, IS THAT THE FEDERAL ACT HAS A PROVISION DESIGNED TO LEAVE
STATES FREE TO REGULATE THE SIZES AND WEIGHTS OF MOTOR VEHICLES.  BUT
IT WOULD STRETCH THIS STATUTORY PROVISION TOO MUCH TO SAY THAT IT ALSO
ALLOWED STATES TO REVOKE OR SUSPEND THE RIGHT OF INTERSTATE MOTOR
CARRIERS FOR VIOLATION OF STATE HIGHWAY REGULATIONS. 

IT IS URGED THAT WITHOUT POWER TO IMPOSE PUNISHMENT BY SUSPENSION
STATES WILL BE WITHOUT APPROPRIATE REMEDIES TO ENFORCE THEIR LAWS
AGAINST RECALCITRANT MOTOR CARRIERS.  WE ARE NOT PERSUADED, HOWEVER,
THAT THE CONVENTIONAL FORMS OF PUNISHMENT ARE INADEQUATE TO PROTECT
STATES FROM OVERWEIGHTED OR IMPROPERLY LOADED MOTOR TRUCKS.  MOREOVER,
A COMMISSION REGULATION REQUIRES MOTOR CARRIERS TO ABIDE BY VALID STATE
HIGHWAY REGULATIONS.  (FN7)  AND AS PREVIOUSLY POINTED OUT, THE
COMMISSION CAN REVOKE IN WHOLE OR IN PART CERTIFICATES OF MOTOR
CARRIERS WHICH WILLFULLY REFUSE TO COMPLY WITH ANY LAWFUL REGULATION OF
THE COMMISSION.  (FN8)  IF, THEREFORE, MOTOR CARRIERS PERSISTENTLY AND
REPEATEDLY VIOLATE THE LAWS OF A STATE, WE KNOW OF NO REASON WHY THE
COMMISSION MAY NOT PROTECT THE STATE'S INTEREST, EITHER ON THE
COMMISSION'S OWN INITIATIVE OR ON COMPLAINT OF THE STATE.  (FN9) 

WE AGREE WITH THE SUPREME COURT OF ILLINOIS THAT THE RIGHT OF THIS
CARRIER TO USE ILLINOIS HIGHWAYS FOR INTERSTATE TRANSPORTATION OF GOODS
CANNOT BE SUSPENDED BY ILLINOIS.  AFFIRMED. 

FN1  INDIANA, MISSOURI, MICHIGAN, PENNSYLVANIA, OHIO, KENTUCKY, AND
TENNESSEE. 

FN2  49 STAT. 543.  NOW PART II OF THE INTERSTATE COMMERCE ACT, 54
STAT. 919, 49 U.S.C. SEC. 301 ET SEQ. 

FN3  ILL. REV. STAT., 1953, C. 95 1/2, SEC. 228. 

FN4  ILL. REV. STAT., 1953, C. 95 1/2, SEC. 229B.  THIS SECTION
PROVIDES FOR A 90-DAY SUSPENSION UPON A FINDING OF 10 OR MORE
VIOLATIONS.  IF THEREAFTER THE SAME CARRIER IS FOUND TO HAVE BEEN
GUILTY OF 10 OR MORE LATER VIOLATIONS THE SUSPENSION IS FOR ONE YEAR. 

FN5  2 ILL. 2D 58, 117 N.E.2D 106.  BUT THE STATE SUPREME COURT HELD
THAT HAYES' INTRASTATE OPERATIONS COULD BE SUSPENDED.  HAYES APPEALED
TO THIS COURT.  WE DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION.  347 U.S. 994. 

FN6  SMITH BROS., REVOCATION OF CERTIFICATE, 33 M.C.C. 465, 472.  SEE
UNITED STATES V. SEATRAIN LINES, 329 U.S. 424. 

FN7  49 CFR, 1954 CUM. SUPP., SEC. 192.3.  "EVERY MOTOR VEHICLE SHALL
BE DRIVEN IN ACCORDANCE WITH THE LAWS, ORDINANCES, AND REGULATIONS OF
THE JURISDICTION IN WHICH IT IS BEING OPERATED, UNLESS SUCH LAWS,
ORDINANCES AND REGULATIONS ARE AT VARIANCE WITH SPECIFIC REGULATIONS OF
THIS COMMISSION WHICH IMPOSE A GREATER AFFIRMATIVE OBLIGATION OR
RESTRAINT." 

FN8  49 STAT. 555, 49 U.S.C. SEC. 312. 

FN9  49 STAT. 555, 49 U.S.C. SEC. 312.  FOR CASES IN WHICH THE
COMMISSION HAS CONSIDERED VIOLATIONS OF STATE LAW IN PASSING ON THE
FITNESS AND ABILITY OF APPLICANTS TO OPERATE AS CARRIERS IN INTERSTATE
COMMERCE SEE SOUTHWEST FREIGHT LINES, INC., EXTENSION - GLASS PRODUCTS,
54 M.C.C. 205, 219; HAYES FREIGHT LINES, INC., EXTENSION - ALTERNATE
ROUTES, 54 M.C.C. 643, 659. 
..END :









WATSON V. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LTD. 348 U.S. 66 


NO. 6.  ARGUED OCTOBER 14, 1954 - DECIDED DECEMBER 6, 1954 - 202 F.2D
407, REVERSED. 


1.  A LOUISIANA STATUTE WHICH ALLOWS PERSONS INJURED IN LOUISIANA TO
BRING DIRECT ACTIONS AGAINST LIABILITY INSURANCE COMPANIES INSURING THE
TORTFEASORS, HELD CONSTITUTIONAL, EVEN WHEN APPLIED TO A POLICY WRITTEN
AND DELIVERED IN ANOTHER STATE WHICH RECOGNIZES AS BINDING AND
ENFORCEABLE A PROVISION OF THE POLICY FORBIDDING SUCH DIRECT ACTIONS. 
PP. 67-74. 

(A)  SINCE LOUISIANA'S DIRECT ACTION PROVISIONS FALL WITH EQUAL FORCE
UPON ALL LIABILITY INSURANCE COMPANIES, FOREIGN AND DOMESTIC, AND THERE
IS NO EVIDENCE OF ANY DISCRIMINATORY APPLICATION OF THEM, THEY DO NOT
VIOLATE THE EQUAL PROTECTION CLAUSE.  P. 70. 

(B) SINCE THE DIRECT ACTION PROVISIONS BECAME EFFECTIVE BEFORE THE
INSURANCE CONTRACT HERE SUED ON WAS MADE, THEY DO NOT VIOLATE THE
CONTRACT CLAUSE OF ART. I, SEC. 10, OF THE CONSTITUTION.  P. 70. 

(C)  IN VIEW OF LOUISIANA'S LEGITIMATE INTEREST IN SAFEGUARDING THE
RIGHTS OF PERSONS INJURED THERE, THE DIRECT ACTION PROVISIONS DO NOT
VIOLATE THE DUE PROCESS CLAUSE.  HOME INS. CO. V. DICK, 281 U.S. 397,
AND HARTFORD ACCIDENT & INDEMNITY CO. V. DELTA & PINE LAND CO., 292
U.S. 143, DISTINGUISHED.  PP. 70-73. 

(D)  THE FULL FAITH AND CREDIT CLAUSE DOES NOT COMPEL LOUISIANA TO
SUBORDINATE ITS DIRECT ACTION PROVISIONS TO THE CONTRACT LAWS OF
MASSACHUSETTS, WHERE THIS INSURANCE POLICY WAS ISSUED.  P. 73. 

(E)  LOUISIANA'S LAW COMPELLING FOREIGN INSURANCE COMPANIES TO
CONSENT TO DIRECT ACTIONS DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  PP. 73-74. 

2.  PROVISIONS OF LOUISIANA'S STATUTE HAVING BEEN HELD INVALID AS
REPUGNANT TO THE FEDERAL CONSTITUTION, THIS CASE IS PROPERLY HERE ON
APPEAL, AND THE WRIT OF CERTIORARI IS DISMISSED.  P. 70 AND N. 7. 

WATSON ET UX. V. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LTD. ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

LOUISIANA HAS AN INSURANCE CODE WHICH COMPREHENSIVELY REGULATES THE
BUSINESS OF INSURANCE IN ALL ITS PHASES.  (FN1)  THIS CASE BRINGS TO US
CHALLENGES TO THE CONSTITUTIONALITY OF CERTAIN PROVISIONS OF THAT CODE
ALLOWING INJURED PERSONS TO BRING DIRECT ACTIONS AGAINST LIABILITY
INSURANCE COMPANIES THAT HAVE ISSUED POLICIES CONTRACTING TO PAY
LIABILITIES IMPOSED ON PERSONS WHO INFLICT INJURY.  CF. LUMBERMEN'S
MUTUAL CASUALTY CO. V. ELBERT, DECIDED TODAY, ANTE, P. 48.  THIS IS
SUCH A DIRECT ACTION BROUGHT BY THE APPELLANTS, MR. AND MRS. WATSON, IN
A LOUISIANA STATE COURT CLAIMING DAMAGES AGAINST THE APPELLEE,
EMPLOYERS LIABILITY ASSURANCE CORPORATION, LTD., ON ACCOUNT OF ALLEGED
PERSONAL INJURIES SUFFERED BY MRS. WATSON.  THE COMPLAINT CHARGED THAT
THE INJURIES OCCURRED IN LOUISIANA WHEN MRS. WATON BOUGHT AND USED IN
THAT STATE "TONI HOME PERMANENT" A HAIR-WAVING PRODUCT ALLEGED TO HAVE
CONTAINED A HIGHLY DANGEROUS LATENT INGREDIENT PUT THERE BY ITS
MANUFACTURER.  THE MANUFACTURER IS THE TONI COMPANY OF ILLINOIS, A
SUBSIDIARY OF THE GILLETTE SAFETY RAZOR COMPANY WHICH HAS ITS
HEADQUARTERS IN MASSACHUSETTS. 

THE PARTICULAR PROBLEM PRESENTED WITH REFERENCE TO ENFORCING THE
LOUISIANA STATUTE IN THIS CASE ARISES BECAUSE THE INSURANCE POLICY SUED
ON WAS NEGOTIATED AND ISSUED IN MASSACHUSETTS AND DELIVERED IN
MASSACHUSETTS AND ILLINOIS.  (FN2)  THIS MASSACHUSETTS-NEGOTIATED
CONTRACT CONTAINS A CLAUSE, RECOGNIZED AS BINDING AND ENFORCEABLE UNDER
MASSACHUSETTS AND ILLINOIS LAW, WHICH PROHIBITS DIRECT ACTIONS AGAINST
THE INSURANCE COMPANY UNTIL AFTER FINAL DETERMINATION OF THE TONI
COMPANY'S OBLIGATION TO PAY PERSONAL INJURY DAMAGES EITHER BY JUDGMENT
OR AGREEMENT.  (FN3)  CONTRARY TO THIS CONTRACTUAL "NO ACTION" CLAUSE,
THE CHALLENGED STATUTORY PROVISIONS PERMIT INJURED PERSONS TO SUE AN
INSURANCE COMPANY BEFORE SUCH FINAL DETERMINATION.  AS TO INJURIES
OCCURRING IN LOUISIANA, ONE PROVISION OF THE STATE'S DIRECT ACTION
STATUTE MAKES IT APPLICABLE, EVEN THOUGH, AS HERE, AN INSURANCE
CONTRACT IS MADE IN ANOTHER STATE AND CONTAINS A CLAUSE FORBIDDING SUCH
DIRECT ACTIONS.  (FN4)  ANOTHER LOUISIANA STATUTORY PROVISION, WITH
WHICH EMPLOYERS LONG AGO COMPLIED, COMPELS FOREIGN INSURANCE COMPANIES
TO CONSENT TO SUCH DIRECT SUITS IN ORDER TO GET A CERTIFICATE TO DO
BUSINESS IN THE STATE.  (FN5)  THE BASIC ISSUE RAISED BY THE ATTACK ON
BOTH THESE PROVISIONS IS WHETHER THE FEDERAL CONSTITUTION FORBIDS
LOUISIANA TO APPLY ITS OWN LAW AND COMPELS IT TO APPLY THE LAW OF
MASSACHUSETTS OR ILLINOIS. 

AFTER THE CASE WAS REMOVED TO THE UNITED STATES DISTRICT COURT
BECAUSE OF DIVERSITY EMPLOYERS MOVED TO DISMISS, CONTENDING THAT THE
TWO LOUISIANA STATUTORY PROVISIONS CONTRAVENED THE EQUAL PROTECTION,
CONTRACT, DUE PROCESS AND FULL FAITH AND CREDIT CLAUSES OF THE FEDERAL
CONSTITUTION.  WITH EMPHASIS ON THE DUE PROCESS CONTENTION, THE
DISTRICT COURT DISMISSED THE CASE, HOLDING BOTH STATUTORY PROVISIONS
UNCONSTITUTIONAL AS TO POLICIES WRITTEN AND DELIVERED OUTSIDE THE STATE
OF LOUISIANA.  107 F. SUPP. 494.  (FN6)  THE COURT OF APPEALS AGREED
WITH THE DISTRICT COURT AND AFFIRMED THE DISMISSAL.  202 F.2D 407. 
PROVISIONS OF LOUISIANA'S STATUTES HAVING BEEN HELD INVALID AS
REPUGNANT TO THE FEDERAL CONSTITUTION, THE CASE IS PROPERLY HERE ON
APPEAL.  (FN7) 

THE DENIAL OF EQUAL PROTECTION AND IMPAIRMENT OF CONTRACT CONTENTIONS
ARE WHOLLY VOID OF MERIT.  THE STATE'S DIRECT ACTION PROVISIONS FALL
WITH EQUAL FORCE UPON ALL LIABILITY INSURANCE COMPANIES, FOREIGN AND
DOMESTIC.  EMPLOYERS POINTS TO NO OTHER PROVISIONS OF THE LOUISIANA LAW
OR TO FACTS OF ANY NATURE WHICH GIVE THE SLIGHTEST SUPPORT TO ANY
CHARGE OF DISCRIMINATORY APPLICATION OF THE DIRECT ACTION STATUTE.  AND
SINCE THE DIRECT ACTION PROVISIONS BECAME EFFECTIVE BEFORE THIS
INSURANCE CONTRACT WAS MADE, THERE IS A SIMILAR LACK OF SUBSTANTIALITY
IN THE SUGGESTION THAT LOUISIANA HAS VIOLATED ART. I, SEC. 10, OF THE
UNITED STATES CONSTITUTION WHICH FORBIDS STATES TO IMPAIR THE
OBLIGATION OF CONTRACTS.  MUNDAY V. WISCONSIN TRUST CO., 252 U.S. 499,
503. 

HAD THE POLICY SUED ON BEEN ISSUED IN LOUISIANA THERE WOULD BE NO
ARGUABLE DUE PROCESS QUESTION.  SEE MERCHANTS MUTUAL AUTO.  LIABILITY
INS. CO. V. SMART, 267 U.S. 126, 129-130.  BUT BECAUSE THE POLICY WAS
BOUGHT, ISSUED AND DELIVERED OUTSIDE OF LOUISIANA, EMPLOYERS INVOKES
THE DUE PROCESS PRINCIPLE THAT A STATE IS WITHOUT POWER TO EXERCISE
"EXTRATERRITORIAL JURISDICTION," THAT IS, TO REGULATE AND CONTROL
ACTIVITIES WHOLLY BEYOND ITS BOUNDARIES.  SUCH A PRINCIPLE WAS
RECOGNIZED AND APPLIED IN HOME INS. CO. V. DICK, 281 U.S. 397, A CASE
STRONGLY RELIED ON BY EMPLOYERS.  THERE TEXAS WAS DENIED POWER TO ALTER
THE TERMS OF AN INSURANCE CONTRACT MADE IN MEXICO BETWEEN PERSONS THEN
IN THAT COUNTRY, COVERING A VESSEL ONLY WHILE IN MEXICAN WATERS, AND
CONTAINING A PROVISION THAT THE CONTRACT WAS TO BE GOVERNED BY THE LAWS
OF MEXICO.  THUS, THE SUBJECT MATTER OF THE CONTRACT RELATED IN NO
MANNER TO ANYTHING THAT HAD BEEN DONE OR WAS TO BE DONE IN TEXAS.  FOR
THIS REASON, TEXAS WAS DENIED POWER TO ALTER THE OBLIGATIONS OF THE
MEXICAN CONTRACT.  BUT THIS COURT CAREFULLY POINTED OUT THAT ITS
DECISION MIGHT HAVE BEEN DIFFERENT HAD ACTIVITIES RELATING TO THE
CONTRACT TAKEN PLACE IN TEXAS UPON WHICH THE STATE COULD PROPERLY LAY
HOLD AS A BASIS FOR REGULATION.  HOME INS. CO. V. DICK, SUPRA, AT 408
N. 5.  THE EXTRATERRITORIAL DUE PROCESS DOCTRINE WAS AGAIN APPLIED IN
HARTFORD ACCIDENT & INDEMNITY CO. V. DELTA & PINE LAND CO., 292 U.S.
143.  THAT CASE DENIED THE POWER OF MISSISSIPPI TO ALTER TERMS OF AN
INSURANCE CONTRACT MADE IN TENNESSEE.  MISSISSIPPI ACTIVITIES IN
CONNECTION WITH THE POLICY WERE FOUND TO BE SO "SLIGHT" AND SO "CASUAL"
THAT MISSISSIPPI COULD NOT APPLY ITS OWN LAW IN SUCH WAY AS TO ENLARGE
THE OBLIGATIONS OF THE TENNESSEE CONTRACT.  AGAIN, HOWEVER, THE COURT
CAREFULLY NOTED THAT THERE MIGHT BE FUTURE CASES IN WHICH THE TERMS OF
OUT-OF-STATE CONTRACTS WOULD BE SO REPUGNANT TO THE VITAL INTERESTS OF
THE FORUM STATE AS TO JUSTIFY NONENFORCEMENT.  HARTFORD ACCIDENT &
INDEMNITY CO. V. DELTA & PINE LAND CO., SUPRA, AT 150.  SEE ALSO
GRIFFIN V. MCCOACH, 313 U.S. 498, AND CASES THERE CITED. 

SOME CONTRACTS MADE LOCALLY, AFFECTING NOTHING BUT LOCAL AFFAIRS, MAY
WELL JUSTIFY A DENIAL TO OTHER STATES OF POWER TO ALTER THOSE
CONTRACTS.  BUT, AS THIS CASE ILLUSTRATES, A VAST PART OF THE BUSINESS
AFFAIRS OF THIS NATION DOES NOT PRESENT SUCH SIMPLE LOCAL SITUATIONS. 
ALTHOUGH THIS INSURANCE CONTRACT WAS ISSUED IN MASSACHUSETTS, IT WAS TO
PROTECT GILLETTE AND ITS ILLINOIS SUBSIDIARY AGAINST DAMAGES ON ACCOUNT
OF PERSONAL INJURIES THAT MIGHT BE SUFFERED BY USERS OF TONI HOME
PERMANENTS ANYWHERE IN THE UNITED STATES, ITS TERRITORIES, OR IN
CANADA.  AS A CONSEQUENCE OF THE MODERN PRACTICE OF CONDUCTING WIDE
SPREAD BUSINESS ACTIVITIES THROUGHOUT THE ENTIRE UNITED STATES, THIS
COURT HAS IN A SERIES OF CASES HELD THAT MORE STATES THAN ONE MAY SEIZE
HOLD OF LOCAL ACTIVITIES WHICH ARE PART OF MULTISTATE TRANSACTIONS AND
MAY REGULATE TO PROTECT INTERESTS OF ITS OWN PEOPLE, EVEN THOUGH OTHER
PHASES OF THE SAME TRANSACTIONS MIGHT JUSTIFY REGULATORY LEGISLATION IN
OTHER STATES.  SEE, E.G., OSBORN V. OZLIN, 310 U.S. 53; HOOPESTON
CANNING CO. V. CULLEN, 318 U.S. 313; ALASKA PACKERS ASSN. V.
COMMISSION, 294 U.S. 532. 

LOUISIANA'S DIRECT ACTION STATUTE IS NOT A MERE INTERMEDDLING IN
AFFAIRS BEYOND HER BOUNDARIES WHICH ARE NO CONCERN OF HERS.  PERSONS
INJURED OR KILLED IN LOUISIANA ARE MOST LIKELY TO BE LOUISIANA
RESIDENTS, AND EVEN IF NOT, LOUISIANA MAY HAVE TO CARE FOR THEM. 
SERIOUS INJURIES MAY REQUIRE TREATMENT IN LOUISIANA HOMES OR HOSPITALS
BY LOUISIANA DOCTORS.  THE INJURED MAY BE DESTITUTE.  THEY MAY BE
COMPELLED TO CALL UPON FRIENDS, RELATIVES, OR THE PUBLIC FOR HELP. 
LOUISIANA HAS MANIFESTED ITS NATURAL INTEREST IN THE INJURED BY
PROVIDING REMEDIES FOR RECOVERY OF DAMAGES.  IT HAS A SIMILAR INTEREST
IN POLICIES OF INSURANCE WHICH ARE DESIGNED TO ASSURE ULTIMATE PAYMENT
OF SUCH DAMAGES.  MOREOVER, LOUISIANA COURTS IN MOST INSTANCES PROVIDE
THE MOST CONVENIENT FORUM FOR TRIAL OF THESE CASES.  BUT MODERN
TRANSPORTATION AND BUSINESS METHODS HAVE MADE IT MORE DIFFICULT TO
SERVE PROCESS ON WRONGDOERS WHO LIVE OR DO BUSINESS IN OTHER STATES. 
IN THIS CASE EFFORTS TO SERVE THE GILLETTE COMPANY WERE ANSWERED BY A
MOTION TO DISMISS ON THE GROUND THAT GILLETTE HAD NO LOUISIANA AGENT ON
WHOM PROCESS COULD BE SERVED.  IF THIS MOTION IS GRANTED, MRS. WATSON,
BUT FOR THE DIRECT ACTION LAW, COULD NOT GET HER CASE TRIED WITHOUT
GOING TO MASSACHUSETTS OR ILLINOIS ALTHOUGH SHE LIVES IN LOUISIANA AND
HER CLAIM IS FOR INJURIES FROM A PRODUCT BOUGHT AND USED THERE.  WHAT
HAS BEEN SAID IS ENOUGH TO SHOW LOUISIANA'S LEGITIMATE INTEREST IN
SAFEGUARDING THE RIGHTS OF PERSONS INJURED THERE.  IN VIEW OF THAT
INTEREST, THE DIRECT ACTION PROVISION HERE CHALLENGED DO NOT VIOLATE
DUE PROCESS. 

WHAT WE HAVE SAID ABOVE GOES FAR TOWARD ANSWERING THE FULL FAITH AND
CREDIT CLAUSE CONTENTION.  THAT CLAUSE DOES NOT AUTOMATICALLY COMPEL A
STATE TO SUBORDINATE ITS OWN CONTRACT LAWS TO THE LAWS OF ANOTHER STATE
IN WHICH A CONTRACT HAPPENS TO HAVE BEEN FORMALLY EXECUTED.  WHERE, AS
HERE, A CONTRACT AFFECTS THE PEOPLE OF SEVERAL STATES, EACH MAY HAVE
INTERESTS THAT LEAVE IT FREE TO ENFORCE ITS OWN CONTRACT POLICIES. 
ALASKA PACKERS ASSN. V. COMMISSION, 294 U.S. 532, 544-550.  SEE GRIFFIN
V. MCCOACH, 313 U.S. 498, 506-507.  WE HAVE ALREADY POINTED TO THE
VITAL INTERESTS OF LOUISIANA IN LIABILITY INSURANCE THAT COVERS
INJURIES TO PEOPLE IN THAT STATE.  OF COURSE MASSACHUSETTS ALSO HAS
SOME INTEREST IN THE POLICY SUED ON IN THIS CASE.  THE INSURANCE
CONTRACT WAS FORMALLY EXECUTED IN THAT STATE AND GILLETTE HAS AN OFFICE
THERE.  BUT PLAINLY THESE INTERESTS CANNOT OUTWEIGH THE INTEREST OF
LOUISIANA IN TAKING CARE OF THOSE INJURED IN LOUISIANA.  SINCE THIS IS
TRUE, THE FULL FAITH AND CREDIT CLAUSE DOES NOT COMPEL LOUISIANA TO
SUBORDINATE ITS DIRECT ACTION PROVISIONS TO MASSACHUSETTS CONTRACT
RULES.  PACIFIC EMPLOYERS INS. CO. V. COMMISSION, 306 U.S. 493, 503. 
BUT CF. JOHN HANCOCK MUT. LIFE INS. CO. V. YATES, 299 U.S. 178; HUGHES
V. FETTER, 341 U.S. 609. 

WHAT WE HAVE ALREADY SAID DISPOSES OF THE CONTENTION THAT LOUISIANA'S
LAW COMPELLING FOREIGN INSURANCE COMPANIES TO CONSENT TO DIRECT ACTIONS
IS UNCONSTITUTIONAL.  THAT CONTENTION IS THAT THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT FORBIDS A STATE TO COMPEL A FOREIGN
CORPORATION TO SURRENDER CONSTITUTIONAL RIGHTS AS A CONDITION OF BEING
PERMITTED TO DO BUSINESS IN THE STATE.  SEE TERRAL V. BURKE
CONSTRUCTION CO., 257 U.S. 529.  THAT PRINCIPLE IS INAPPLICABLE TO THIS
CASE BECAUSE, AS WE HAVE JUST DECIDED, LOUISIANA HAS A CONSTITUTIONAL
RIGHT TO SUBJECT FOREIGN LIABILITY INSURANCE COMPANIES TO THE DIRECT
ACTION PROVISIONS OF ITS LAWS WHETHER THEY CONSENT OR NOT.  REVERSED. 

FN1  TITLE 22, LA. REV. STAT., 1950. 

FN2  THE INSURANCE POLICY WAS ISSUED TO "THE TONI COMPANY, A DIVISION
OF THE GILLETTE SAFETY RAZOR COMPANY  ...  ."  GILLETTE IS A DELAWARE
CORPORATION WITH HEADQUARTERS IN BOSTON WHERE THE CONTRACT WAS
NEGOTIATED WITH THE BOSTON OFFICE OF EMPLOYERS.  THE TONI COMPANY
MANUFACTURES THE HAIR-WAVING PRODUCT IN CHICAGO, ILLINOIS. 

FN3  "12.  ACTION AGAINST COMPANY.  NO ACTION SHALL LIE AGAINST THE
COMPANY UNLESS, AS A CONDITION PRECEDENT THERETO, THE INSURED SHALL
HAVE FULLY COMPLIED WITH ALL THE TERMS OF THIS POLICY, NOR UNTIL THE
AMOUNT OF THE INSURED'S OBLIGATION TO PAY SHALL HAVE BEEN FINALLY
DETERMINED EITHER BY JUDGMENT AGAINST THE INSURED AFTER ACTUAL TRIAL OR
BY WRITTEN AGREEMENT OF THE INSURED, THE CLAIMANT AND THE COMPANY. 

"ANY PERSON OR ORGANIZATION OR THE LEGAL REPRESENTATIVE THEREOF WHO
HAS SECURED SUCH JUDGMENT OR WRITTEN AGREEMENT SHALL THEREAFTER BE
ENTITLED TO RECOVER UNDER THIS POLICY TO THE EXTENT OF THE INSURANCE
AFFORDED BY THIS POLICY.  NOTHING CONTAINED IN THIS POLICY SHALL GIVE
ANY PERSON OR ORGANIZATION ANY RIGHT TO JOIN THE COMPANY AS A CO
DEFENDANT IN ANY ACTION AGAINST THE INSURED TO DETERMINE THE INSURED'S
LIABILITY.   "BANKRUPTCY OR INSOLVENCY OF THE INSURED OR OF THE
INSURED'S ESTATE SHALL NOT RELIEVE THE COMPANY OF ANY OF ITS
OBLIGATIONS HEREUNDER." 

FN4  "THE INJURED PERSON OR HIS OR HER HEIRS, AT THEIR OPTION, SHALL
HAVE A RIGHT OF DIRECT ACTION AGAINST THE INSURER WITHIN THE TERMS AND
LIMITS OF THE POLICY IN THE PARISH WHERE THE ACCIDENT OR INJURY
OCCURRED OR IN THE PARISH WHERE THE INSURED HAS HIS DOMICILE, AND SAID
ACTION MAY BE BROUGHT AGAINST THE INSURER ALONE OR AGAINST BOTH THE
INSURED AND THE INSURER, JOINTLY OR IN SOLIDO.  THIS RIGHT OF DIRECT
ACTION SHALL EXIST WHETHER THE POLICY OF INSURANCE SUED UPON WAS
WRITTEN OR DELIVERED IN THE STATE OF LOUISIANA OR NOT AND WHETHER OR
NOT SUCH POLICY CONTAINS A PROVISION FORBIDDING SUCH DIRECT ACTION,
PROVIDED THE ACCIDENT OR INJURY OCCURRED WITHIN THE STATE OF LOUISIANA
... .  IT IS THE INTENT OF THIS SECTION THAT ANY ACTION BROUGHT
HEREUNDER SHALL BE SUBJECT TO ALL OF THE LAWFUL CONDITIONS OF THE
POLICY OR CONTRACT AND THE DEFENSES WHICH COULD BE URGED BY THE INSURER
TO A DIRECT ACTION BROUGHT BY THE INSURED, PROVIDED THE TERMS AND
CONDITIONS OF SUCH POLICY OR CONTRACT ARE NOT IN VIOLATION OF THE LAWS
OF THIS STATE."  LA. REV. STAT., 1950, SEC. 22:655, AS AMENDED BY ACT
541 OF THE LOUISIANA LEGISLATURE OF 1950.  AS TO THE SCOPE OF THIS
PROVISION ACCORDING TO LOUISIANA COURTS, SEE ROME V. LONDON &
LANCASHIRE INDEMNITY CO. V. AMERICA, LA. APP., 169 SO. 132.    FN5  "NO
CERTIFICATE OF AUTHORITY TO DO BUSINESS IN LOUISIANA SHALL BE ISSUED TO
A FOREIGN OR ALIEN LIABILITY INSURER UNTIL SUCH INSURER SHALL CONSENT
TO BEING SUED BY THE INJURED PERSON OR HIS OR HER HEIRS IN A DIRECT
ACTION AS PROVIDED IN SECTION 655 OF THIS TITLE, WHETHER THE POLICY OF
INSURANCE SUED UPON WAS WRITTEN OR DELIVERED IN THE STATE OF LOUISIANA
OR NOT, AND WHETHER OR NOT SUCH POLICY CONTAINS A PROVISION FORBIDDING
SUCH DIRECT ACTION, PROVIDED THAT THE ACCIDENT OR INJURY OCCURRED
WITHIN THE STATE OF LOUISIANA.  THE SAID FOREIGN OR ALIEN INSURER SHALL
DELIVER TO THE SECRETARY OF STATE AS A CONDITION PRECEDENT TO THE
ISSUANCE OF SUCH AUTHORITY, AN INSTRUMENT EVIDENCING SUCH CONSENT." 
LA. REV. STAT., 1950, SEC. 22:983, AS AMENDED BY ACT 542 OF THE
LOUISIANA LEGISLATURE OF 1950. 

FN6  THE DISTRICT COURT RELIED IN PART ON ITS PRIOR OPINIONS IN MAYO
V. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., 106 F. SUPP. 579;
BAYARD V. TRADERS & GENERAL INS. CO., 99 F. SUPP. 343; BISH V.
EMPLOYERS' LIABILITY ASSURANCE CORP., 102 F. SUPP. 343. 

FN7  28 U.S.C. SEC. 1254 (2).  IN ADDITION TO NOTING PROBABLE
JURISDICTION OF THIS CAUSE, WE GRANTED CERTIORARI.  347 U.S. 958. 
SINCE THE CASE IS PROPERLY HERE ON APPEAL, THE CERTIORARI IS
DISMISSED. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

WHILE I AGREE WITH THE COURT'S RESULT, I FIND THE COURSE OF REASONING
BY WHICH IT IS REACHED NOT WITHOUT SERIOUS OBSTACLES.  SINCE THE
DIFFICULTIES INVOLVE CONSTITUTIONAL ISSUES, DECISION UPON THEM SHOULD
BE AVOIDED IF A LESS DOUBTFUL GROUND IS AVAILABLE.  IN MY OPINION THERE
IS A BASIS WHICH READILY INVITES TODAY'S DECISION.  WHETHER LOUISIANA
MAY REWRITE A CONTRACT, WHOSE OBLIGATIONS ARE DETERMINED BY
MASSACHUSETTS OR ILLINOIS, BY DELETING A SUBSTANTIAL FEATURE OF THAT
CONTRACT AND THEREBY ENLARGING THE OBLIGATION OF THE INSURANCE COMPANY,
SURELY RAISES A SERIOUS QUESTION AFFECTING THE CONSTITUTIONAL
RELATIONSHIPS OF THE STATES ONE TO ANOTHER.  CONTRARIWISE, WHETHER
LOUISIANA, FREE AS IT WAS TO EXCLUDE THE INSURANCE COMPANY FROM COMING
INTO THE STATE TO DO BUSINESS, WAS EMPOWERED TO CONDITION THE COMPANY'S
ENTRY BY AN UNDERTAKING TO OBSERVE A PUBLIC POLICY BINDING ON ALL LOCAL
INSURANCE COMPANIES AND STRICTLY RELATED TO THE PROTECTION OF SERIOUS
INTERESTS OF ITS OWN CITIZENS, SEEMS TO ME A QUESTION EASIER OF
SOLUTION.  ACCORDINGLY I WOULD REST THE DECISION ON THIS GROUND. 

THIS CONTROVERSY ARISES OUT OF A CONTRACT MADE BETWEEN EMPLOYERS'
LIABILITY ASSURANCE CORP., A BRITISH CORPORATION, AND THE TONI COMPANY,
A DIVISION OF THE GILLETTE SAFETY RAZOR CO., A DELAWARE CORPORATION
WITH PRINCIPAL OFFICES IN BOSTON, MASSACHUSETTS.  THE CONTRACT
CONTAINED THIS PROVISION:

"NO ACTION SHALL LIE AGAINST THE COMPANY UNLESS, AS A CONDITION
PRECEDENT THERETO, THE INSURED SHALL HAVE FULLY COMPLIED WITH ALL THE
TERMS OF THIS POLICY, NOR UNTIL THE AMOUNT OF THE INSURED'S OBLIGATION
TO PAY SHALL HAVE BEEN FINALLY DETERMINED EITHER BY JUDGMENT AGAINST
THE INSURED AFTER ACTUAL TRIAL OR BY WRITTEN AGREEMENT OF THE INSURED,
THE CLAIMANT AND THE COMPANY." 

IT WAS ISSUED AND DELIVERED IN MASSACHUSETTS TO GILLETTE AND A COPY
DELIVERED IN ILLINOIS TO TONI.   HAPPILY, IT IS NOT NECESSARY TO
DETERMINE WHETHER THE OBLIGATIONS FLOWING FROM THIS CONTRACT ARE
DETERMINED EXCLUSIVELY BY THE LAW OF MASSACHUSETTS OR BY THE LAW OF
ILLINOIS.  CONCEDEDLY, BOTH STATES RECOGNIZE THE RIGHT OF AN INSURANCE
COMPANY TO SAFEGUARD ITS TREASURY BY MAKING ITS INDIRECT LIABILITY TO A
THIRD PERSON CONTINGENT ON A JUDGMENT AGAINST THE INSURED OR COMPROMISE
SETTLEMENT PARTICIPATED IN BY THE INSURER.  HOWSOEVER THE FACT MAY BE
PHRASED OR EXPLAINED AWAY, TO ALLOW SUITS BY A THIRD-PARTY CLAIMANT
DIRECTLY AGAINST THE INSURANCE COMPANY PRIOR TO A JUDGMENT AGAINST THE
INSURED IS TO SUBJECT THE INSURANCE COMPANY TO AN OBLIGATION WHICH IT
HAD NOT UNDERTAKEN AND WHICH INDEED IT HAD EXPRESSLY REFUSED TO
ASSUME.  IN SANCTIONING THE PROTECTION OF INSURANCE FUNDS AFFORDED BY
THE "NO-ACTION" CLAUSE, MASSACHUSETTS AND ILLINOIS HAVE EXPRESSED STATE
POLICY OF THE SAME CONSTITUTIONAL AUTHORITY AS LOUISIANA ASSERTED IN
ITS LEGISLATION ALLOWING DIRECT ACTIONS.  MASSACHUSETTS IS DEEPLY
CONCERNED WITH THE FISCAL WELL-BEING OF INSURANCE COMPANIES WHOSE
ACTIVITIES CENTER IN THAT STATE; THIS IS OF CONSIDERABLE IMPORTANCE TO
ITS CITIZENS.  IN ADDITION, BOTH MASSACHUSETTS AND ILLINOIS SHARE
CONCERN FOR THE INTEREST OF THE INSURED IN THE SCOPE AND NATURE OF THE
OBLIGATIONS WHICH BIND AS WELL AS PROTECT HIM.  THE PREMIUMS PAYABLE BY
THE INSURED UNDER THIS POLICY VARIED DIRECTLY WITH THE LOSSES PAID BY
THE INSURER AND TO THAT EXTENT THE INSURED HAD A STAKE IN THE "NO
ACTION" CLAUSE.  TO TREAT THAT CLAUSE AS THOUGH IT WERE A REDUNDANT OR
AN INSUBSTANTIAL PART OF THE AGREEMENT IS TO FLOUT FAMILIAR EXPERIENCE
OF THE READINESS OF JURIES TO AMERCE INSURANCE COMPANIES.  (FN1) 

TO RESOLVE THESE CONFLICTING POLICIES SOLELY ON THE BASIS OF THE
PUBLIC POLICY OF LOUISIANA IS TO ASSUME THAT THERE IS ONLY ONE
PRINCIPLE INVOLVED IN A PROBLEM WHEN IN FACT THERE ARE CONFLICTING
PRINCIPLES OF EQUAL RELEVANCE.  THIS COURT HAS NOT HERETOFORE
DISREGARDED THE INTERESTS OF STATES IN THE POSITION OF MASSACHUSETTS
AND ILLINOIS BY EXCLUSIVE REGARD FOR THE POLICY OF A STATE IN THE
POSITION OF LOUISIANA WHEN REGARD FOR ITS INTEREST NECESSARILY TANGLES
WITH THE INTERESTS OF SISTER STATES.  TO BE SURE, A STATE MAY REFUSE TO
GIVE AFFIRMATIVE HELP IN ENFORCING A CONTRACT VALID IN A SISTER STATE
WHERE THE OBLIGATION WAS INCURRED, BUT AGAINST ITS OWN POLICY.  AT
LEAST IT MAY DO SO INSOFAR AS THE FULL FAITH AND CREDIT CLAUSE IS NO
BARRIER.  BUT TO DENY JUDICIAL ENFORCEMENT OF A CONTRACT THROUGH ITS
COURTS WHEN SUCH CONTRACT SUFFICIENTLY OFFENDS LOCAL POLICY IS A VERY
DIFFERENT THING FROM REWRITING A CONTRACT AND ENFORCING IT IN A MANNER
CONTRARY TO THE UNDERTAKING OF THE MAKERS. 

THAT LOUISIANA'S ATTEMPT TO CHANGE THE TERMS OF THE CONTRACT OF
INSURANCE IN THIS CASE PRESENTS A SERIOUS QUESTION, APART FROM THE
POWER OF LOUISIANA TO EXCLUDE A FOREIGN INSURANCE COMPANY OR ADMIT IT
ON CONDITION, IS EMPHATICALLY SHOWN BY HARTFORD ACCIDENT & INDEMNITY
CO. V. DELTA & PINE LANE CO., 292 U.S. 143.  IN THAT CASE AN ACTION WAS
BROUGHT IN MISSISSIPPI ON A FIDELITY BOND INSURING AGAINST EMPLOYEE
DEFALCATIONS "IN ANY POSITION ANYWHERE."  THE BOND HAS BEEN ISSUED
WHILE THE EXECUTIVE OFFICES OF THE INSURED WERE TEMPORARILY IN
TENNESSEE, AND WAS ISSUED AND DELIVERED IN THAT STATE.  AFTER THE
INSURED MOVED ITS MAIN OFFICES TO MISSISSIPPI, THE STATE OF ITS
INCORPORATION, SUIT WAS BROUGHT THERE FOR ITS TREASURER'S THIEVING IN
MISSISSIPPI.  THE POLICY CONTAINED A PROVISION THAT A CLAIM UNDER THE
CONTRACT MUST BE MADE WITHIN 15 MONTHS AFTER THE TERMINATION OF
SURETYSHIP FOR THE DEFAULTING EMPLOYEE.  THE CLAIM WAS NOT MADE WITHIN
THAT PERIOD, BUT THE MISSISSIPPI SUPREME COURT HELD THAT THIS CONDITION
WAS NOT ENFORCEABLE BECAUSE CONTRARY TO A MISSISSIPPI STATUTE.  THIS
COURT REVERSED THE MISSISSIPPI COURT, HOLDING THAT THE MISSISSIPPI
STATUTE COULD NOT DISREGARD THE LIMITING PROVISION OF THE CONTRACT. 
THE PRINCIPLE WAS LAID DOWN THAT A STATE MAY NOT "IN AN ACTION BASED
UPON SUCH A CONTRACT ENLARGE THE OBLIGATIONS OF THE PARTIES TO ACCORD
WITH EVERY LOCAL STATUTORY POLICY SOLELY UPON THE GROUND THAT ONE OF
THE PARTIES IS ITS OWN CITIZEN."  292 U.S., AT 149.  JOINING IN THIS
UNANIMOUS DECISION WERE TWO MEMBERS, MR. CHIEF JUSTICE HUGHES AND MR.
JUSTICE BRANDEIS, WHO PROBABLY HAD MORE SPECIALIZED KNOWLEDGE TO MAKE
THEM AWARE THAT "GOVERNMENT HAS ALWAYS HAD A SPECIAL RELATION TO
INSURANCE," OSBORN V. OZLIN, 310 U.S. 53, 65, THAN ANY OTHER JUSTICES
EVER TO SIT ON THIS COURT. 

IN THE HARTFORD INDEMNITY CASE, AS HERE, THE POLICY COVERED
TRANSITORY RISKS, WITHOUT A DEFINED SITUS, AND THE STATE OF THE FORUM
HAD A FORESEEABLE CONCERN WITH THE PROTECTION OF ASSETS WITHIN ITS
JURISDICTION AT THE TIME THE POLICY WAS ISSUED, FOR THE POLICY ISSUED
LISTED 21 EMPLOYEES WHO WERE THEN WORKING IN MISSISSIPPI. 
NEVERTHELESS, MISSISSIPPI, THE STATE OF THE FORUM, WAS NOT ALLOWED TO
ENLARGE THE OBLIGATIONS OF A CONTRACT ELSEWHERE VALIDLY CONSUMMATED. 

OUR MORE RECENT CASES HAVE NOT MADE INROAD ON THE GOVERNING
CONSIDERATION IN THE HARTFORD INDEMNITY CASE, THAT THE STATE WHICH
FIXES THE TERMS OF INSURANCE CONTRACTS HAS INTERESTS TO BE PROTECTED BY
THE CONSTITUTION NO LESS IMPORTANT THAN HAS A STATE WHICH SEEKS TO
EXCISE PROVISIONS OF SUCH A CONTRACT.  IN BOTH THE OSBORN CASE, SUPRA,
AND HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313, THE COURT WAS
CONCERNED MERELY WITH THE VALIDITY OF LEGISLATION OF A REGULATORY
NATURE.  IN NEITHER WAS THE COURT FACED WITH THE PROBLEM OF APPLYING TO
AN EXISTING VALID CONTRACT MADE OUTSIDE THE STATE LOCAL LAW MODIFYING
SUCH CONTRACT.  REALIZATION THAT THE LOUISIANA STATUTE, IN THE CONTEXT
OF THIS CASE, RAISES THE DELICATE PROBLEM OF BALANCING INTERESTS - THAT
REFRACTORY ASPECT OF DUE PROCESS - ADMONISHES ITS AVOIDANCE WHEN AN
EASIER SOLUTION LIES AT HAND. 

THESE, THEN, ARE THE FORMIDABLE CONSTITUTIONAL HURDLES THAT WOULD
HAVE TO BE CLEARED WERE THIS AN ACTION AGAINST AN INSURANCE COMPANY
WHICH, SOMEHOW OR OTHER, WAS DULY SERVED IN LOUISIANA BUT WHICH HAD NOT
EXERCISED THE PRIVILEGE OF DOING BUSINESS THERE SUBJECT TO THE
CONDITION OF AMENABILITY TO LOUISIANA DIRECT ACTION STATUTES.  I HAVE
NO DOUBT, HOWEVER,THAT LOUISIANA CAN EXACT FROM EMPLOYERS', AS IT DID,
VALID CONSENT TO DIRECT ACTION IN THE CASE OF INJURIES INFLICTED IN
LOUISIANA UPON ITS CITIZENS BY EMPLOYERS' POLICYHOLDERS.  IT CAN DO SO
AS PART OF THE FAIR BARGAIN BY WHICH IT GAVE HOSPITALITY TO EMPLOYERS'
FOR DOING BUSINESS IN LOUISIANA. 

AFTER THE GRAIN IS WINNOWED FROM THE CHAFF IN SOME HUNDRED OPINIONS
DEALING WITH SO-CALLED "UNCONSTITUTIONAL CONDITIONS," INSOFAR AS THEY
RELATE TO THE POWER OF A STATE TO EXCLUDE A FOREIGN CORPORATION OR
CONDITION ITS ENTRY, THE RESIDUUM IS CLEAR.  IN AN EARLY LEADING CASE
THE STATE'S AUTHORITY WAS ASSERTED IN ABSOLUTE TERMS: 

"HAVING NO ABSOLUTE RIGHT OF RECOGNITION IN OTHER STATES, BUT
DEPENDING FOR SUCH RECOGNITION AND THE ENFORCEMENT OF ITS CONTRACTS
UPON THEIR ASSENT, IT FOLLOWS, AS A MATTER OF COURSE, THAT SUCH ASSENT
MAY BE GRANTED UPON SUCH TERMS AND CONDITIONS AS THOSE STATES MAY THINK
PROPER TO IMPOSE.  THEY MAY EXCLUDE THE FOREIGN CORPORATION ENTIRELY;
THEY MAY RESTRICT ITS BUSINESS TO PARTICULAR LOCALITIES, OR THEY MAY
EXACT SUCH SECURITY FOR THE PERFORMANCE OF ITS CONTRACTS WITH THEIR
CITIZENS AS IN THEIR JUDGMENT WILL BEST PROMOTE THE PUBLIC INTEREST. 
THE WHOLE MATTER RESTS IN THEIR DISCRETION."  PAUL V. VIRGINIA, 8
WALL.  168, 181.  (FN2) 

AFTER A WHILE, SOME OBVIOUS, STRICTLY DEFINED QUALIFICATIONS WERE
MADE: 

"THE ONLY LIMITATION UPON THIS POWER OF THE STATE TO EXCLUDE A
FOREIGN CORPORATION FROM DOING BUSINESS WITHIN ITS LIMITS  ...  OR TO
EXACT CONDITIONS FOR ALLOWING THE CORPORATION TO DO BUSINESS OR HIRE
OFFICES THERE, ARISES WHERE THE CORPORATION IS IN THE EMPLOY OF THE
FEDERAL GOVERNMENT, OR WHERE ITS BUSINESS IS STRICTLY COMMERCE,
INTERSTATE OR FOREIGN.  THE CONTROL OF SUCH COMMERCE, BEING IN THE
FEDERAL GOVERNMENT, IS NOT TO BE RESTRICTED BY STATE AUTHORITY." 
PEMBINA CONSOLIDATED SILVER MINING & MILLING CO. V. PENNSYLVANIA, 125
U.S. 181, 190. 

AFTER CONSIDERABLE FURTHER JUDICIAL EXPERIENCE, THE MATTER WAS THUS
SUMMARIZED IN OUR OWN DAY BY MR. JUSTICE HOLMES: 

"  ...  WE ASSUME IN FAVOR OF THE DEFENDANTS THAT THE STATE HAS THE
POWER AND CONSTITUTIONAL RIGHT ARBITRARILY TO EXCLUDE THE PLAINTIFF
WITHOUT OTHER REASON THAN THAT SUCH IS ITS WILL.  BUT IT HAS BEEN HELD
A GREAT MANY TIMES THAT THE MOST ABSOLUTE SEEMING RIGHTS ARE QUALIFIED,
AND IN SOME CIRCUMSTANCES BECOME WRONG.  ONE OF THE MOST FREQUENTLY
RECURRING INSTANCES IS WHEN THE SO-CALLED RIGHT IS USED AS PART OF A
SCHEME TO ACCOMPLISH A FORBIDDEN RESULT.  FRICK V. PENNSYLVANIA, 268
U.S. 473.  AMERICAN BANK & TRUST CO. V. FEDERAL RESERVE BANK OF
ATLANTA, 256 U.S. 350, 358.  BADDERS V. UNITED STATES, 240 U.S. 391,
394.  UNITED STATES V. READING CO., 226 U.S. 324, 357.  THUS THE RIGHT
TO EXCLUDE A FOREIGN CORPORATION CANNOT BE USED TO PREVENT IT FROM
RESORTING TO A FEDERAL COURT, TERRAL V. BURKE CONSTRUCTION CO., 257
U.S. 529; OR TO TAX IT UPON PROPERTY THAT BY ESTABLISHED PRINCIPLES THE
STATE HAS NO POWER TO TAX, WESTERN UNION TELEGRAPH CO. V. KANSAS, 216
U.S. 1, AND OTHER CASES IN THE SAME VOLUME AND LATER THAT HAVE FOLLOWED
IT; OR TO INTERFERE WITH INTERSTATE COMMERCE, SIOUX REMEDY CO. V. COPE,
235 U.S. 107 (197), 203; LOONEY V. CRANE CO., 245 U.S. 178, 188. 
WESTERN UNION TELEGRAPH CO. V. FOSTER, 247 U.S. 105, 114.  A STATE
CANNOT REGULATE THE CONDUCT OF A FOREIGN RAILROAD CORPORATION IN
ANOTHER JURISDICTION, EVEN THOUGH THE COMPANY HAS TRACKS AND DOES
BUSINESS IN THE STATE MAKING THE ATTEMPT.  NEW YORK, LAKE ERIE &
WESTERN R.R. CO. V. PENNSYLVANIA, 153 U.S. 628, 646."  FIDELITY &
DEPOSIT CO. V. TAFOYA, 270 U.S. 426, 434-435. 

THIS WAS A PARTICULARIZATION OF HIS EARLIER GENERALIZATION IN DENVER
V. DENVER UNION WATER CO., 246 U.S. 178: 

"THE ORDINANCE OF THE CITY COULD MEAN NO MORE THAN THAT THE COMPANY
MUST ACCEPT THE CITY'S RATES OR STOP - AND AS IT COULD BE STOPPED BY
THE CITY OUT AND OUT, THE GENERAL PRINCIPLE IS THAT IT COULD BE STOPPED
UNLESS A CERTAIN PRICE SHOULD BE PAID  ...  .  IT IS TRUE THAT THIS
PRINCIPLE HAS NOT BEEN APPLIED IN CASES WHERE THE CONDITION TENDED TO
BRING ABOUT A STATE OF THINGS THAT THERE WAS A PREDOMINANT PUBLIC
INTEREST TO PREVENT, BUT I SEE NO GROUND FOR THE APPLICATION HERE OF
ANYTHING TO BE DEDUCED FROM WESTERN UNION TELEGRAPH CO. V. KANSAS, 216
U.S. 1; PULLMAN CO. V. KANSAS, 216 U.S. 56, OR MOTION PICTURE PATENTS
CO. V. UNIVERSAL FILM MANUFACTURING CO., 243 U.S. 502."  ID., AT 197. 
THE UPSHOT OF OUR DECISIONS WAS MOST RECENTLY THUS SUMMARIZED BY MR.
JUSTICE ROBERTS FOR THE COURT: 

"IT HAS REPEATEDLY BEEN SAID THAT QUALIFICATION OF A FOREIGN
CORPORATION IN ACCORDANCE WITH THE STATUTES PERMITTING ITS ENTRY INTO
THE STATE CONSTITUTES AN ASSENT ON ITS PART TO ALL THE REASONABLE
CONDITIONS IMPOSED.  LAFAYETTE INSURANCE CO. V. FRENCH, SUPRA (18 HOW. 
404), 408; ST. CLAIR V. COX, SUPRA (106 U.S. 350), 356; CONNECTICUT
MUTUAL LIFE INSURANCE CO. V. SPRATLEY, 172 U.S. 602, 614; OLD WAYNE
MUT. LIFE ASSN. V. MCDONOUGH, 204 U.S. 8, 22; COMMERCIAL MUTUAL
ACCIDENT CO. V. DAVIS, 213 U.S. 245, 254.  IT IS TRUE THAT THE
CORPORATION'S ENTRY MAY NOT BE CONDITIONED UPON SURRENDER OF
CONSTITUTIONAL RIGHTS, AS WAS ATTEMPTED IN THE CASES ON WHICH THE
APPELLANT RELIES.  TERRAL V. BURKE CONSTRUCTION CO., 257 U.S. 529;
FIDELITY & DEPOSIT CO. V. TAFOYA, 270 U.S. 426; FROST TRUCKING CO. V.
RAILROAD COMMISSION, 271 U.S. 583; HANOVER FIRE INSURANCE CO. V.
HARDING, 272 U.S. 494.  AND FOR THIS REASON A STATE MAY NOT EXACT
ARBITRARY AND UNREASONABLE TERMS RESPECTING SUITS AGAINST FOREIGN
CORPORATIONS AS THE PRICE OF ADMISSION, POWER MFG. CO. V. SAUNDERS, 274
U.S. 490  ...  . 

"THE POWER OF THE STATE ALTOGETHER TO EXCLUDE THE CORPORATION, AND
THE CONSEQUENT ABILITY TO CONDITION ITS ENTRANCE INTO THE STATE,
DISTINGUISHES THIS CASE FROM THOSE INVOLVING SUBSTITUTED SERVICE UPON
INDIVIDUALS  ...  ."  WASHINGTON V. SUPERIOR COURT, 289 U.S. 361, 364
365. 

THE STANDARD OF REASONABLENESS, AS EXPRESSED IN THE WASHINGTON CASE,
IMPOSED ON THE POWER OF A STATE TO ADMIT A FOREIGN CORPORATION ON
CONDITIONS, EMBRACES ALL PRIOR INSTANCES OF DENIAL OF STATE POWER.  IT
GIVES A RATIONAL BASIS FOR THE HOLDINGS THAT A STATE MAY NOT RESTRICT
FEDERAL JUDICIAL POWER OR BURDENSOMELY REGULATE OR TAX INTERSTATE
COMMERCE, OR, WITHOUT JUSTIFICATION OF AMPLE INTERESTS OF ITS OWN,
PROJECT ITS POWERS INTO THE DOMAIN OF ANOTHER STATE. 

WHAT LOUISIANA HAS DONE HERE FALLS OUTSIDE ANY OF THE SPECIFIC
INSTANCES OR THE GUIDING PRINCIPLES RECOGNIZED BY THIS COURT FROM TIME
TO TIME AS LIMITATIONS UPON WHAT STILL REMAINS THE PRACTICALLY
ARBITRARY POWER OF A STATE IN DEALING WITH THE DESIRE OF A FOREIGN
CORPORATION, NOT PRIVILEGED TO DO SO BY FEDERAL AUTHORITY, TO DO
BUSINESS WITHIN ITS BOUNDS.  (FN3)  HERE WE HAVE NO CLAIM OF
INTERFERENCE WITH INTERSTATE COMMERCE OR WITH THE OPERATIONS OF THE
FEDERAL GOVERNMENT.  THERE IS NO DISCRIMINATION BETWEEN FOREIGN AND
DOMESTIC INSURANCE COMPANIES.  AND THERE IS NO DENIAL OF DUE PROCESS
BECAUSE THE LOUISIANA CONDITION OF ADMISSION MEETS THE TEST OF
REASONABLENESS, A STANDARD TO BE APPLIED IN DIVERSE CONTEXTS IN THE
LIGHT OF ALL RELEVANT FACTORS, INCLUDING HERE THE RECOGNIZED POWER TO
EXCLUDE A FOREIGN CORPORATION.  IT MEETS THE TEST OF REASONABLENESS
BECAUSE THE CONDITIONS IMPOSED ARE FAIRLY RELATED TO THE INTERESTS
WHICH LOUISIANA MAY APPROPRIATELY PROTECT IN SURRENDERING ITS RIGHT TO
EXCLUDE A FOREIGN CORPORATION.  THE INTERESTS OF MASSACHUSETTS OR
ILLINOIS DO NOT SO OBVIOUSLY SUBORDINATE THOSE OF LOUISIANA THAT THE
LATTER MUST CONSTITUTIONALLY YIELD TO THE FORMER. 

SURELY IT WAS REASONABLE FOR LOUISIANA TO ADOPT THE METHOD IT DID OF
MEETING SOME OF THE DIFFICULTIES IN OBTAINING JURISDICTION OVER OUT-OF
STATE TORTFEASORS, TYPIFIED IN THE PRESENT CASE BY THE DISPUTE OVER THE
EFFICACY OF ATTEMPTED SERVICE UPON GILLETTE, THE INSURED.  EVEN WHERE
THE SPECIFIC PROBLEM IS NOT PRESENT, THE STATE MAY JUSTIFIABLY HAVE
FELT CONCERN OVER THE DELAYS IN SATISFACTION OF JUDGMENTS FOR INJURIES
SUSTAINED IN LOUISIANA BY LOUISIANA CITIZENS THAT ARE INHERENT UNDER
THE TRADITIONAL SYSTEM WHICH REQUIRES A SEPARATE ACTION BY THE VICTIM
OF AN INSURED TORTFEASOR TO REACH THE LATTER'S INSURANCE SHOULD HE
DEFAULT IN PAYMENT OF A JUDGMENT AGAINST HIM.  IT CANNOT BE SAID THAT
LOUISIANA WAS EXTORTING AN UNFAIR OR UNREASONABLE ADVANTAGE FOR ITS
CITIZENS AS THE PRICE OF ITS PERMISSION TO EMPLOYERS' TO TAP THE
LOUISIANA INSURANCE MARKET.  (FN4)  NOR CAN IT BE SAID THAT IN THUS
PROTECTING ITS OWN SERIOUS INTERESTS IT WAS SELFISHLY OR RUTHLESSLY
SEEKING TO INJECT ITSELF INTO MATTERS THAT WERE THE SOLE OR PREDOMINANT
CONCERN OF SISTER STATES.  (FN5) 

FN1  ADDITIONAL PROTECTIONS TO BOTH INSURER AND INSURED ARE SWEPT
ASIDE UNDER THE LOUISIANA DIRECT ACTION STATUTE.  THE INTEREST OF THE
INSURED IN THE OUTCOME OF THE LITIGATION DECREASES, WITH CONCOMITANT
REDUCTION IN THE LIKELIHOOD OF HIS VIGOROUS COOPERATION IN THE
INSURER'S DEFENSE.  THE BURDEN OF THIS SAME OBLIGATION OF COOPERATION
BECOMES INCREASINGLY OPPRESSIVE TO A CONSCIENTIOUS INSURED AS SERVICE
ON FAR-FLUNG AGENTS OF THE INSURER LEADS TO REMOTE JUDICIAL
PROCEEDINGS. 

FN2  AN EARLIER CASE EXPRESSED, IN A JUMBLE OF LOOSE GENERALIZATIONS,
THE ASSUMPTION THAT THERE WERE SOME INHERENT RESTRICTIONS ON A STATE'S
POWER TO DEAL WITH FOREIGN CORPORATIONS.  LAFAYETTE INSURANCE CO. V.
FRENCH, 18 HOW.  404, 407.  PHRASES LIKE "NATURAL JUSTICE" OR "NATURAL
REASON" OR "THE PRINCIPLES OF THE SOCIAL COMPACT" WERE IN FASHION AT
THAT TIME FOR STATING INTRINSIC LIMITATIONS ON THE EXERCISE OF ALL
POLITICAL POWER.  MORE RECENTLY, THE POWER OF THIS COURT TO STRIKE DOWN
LEGISLATION HAS BEEN MORE ACUTELY ANALYZED AND LESS LOOSELY EXPRESSED. 
RHETORICAL GENERALIZATIONS HAVE NOT BEEN DEEMED SUFFICIENT
JUSTIFICATION FOR INVALIDATING LEGISLATION. 

FN3  WHATEVER THE SURVIVAL VALUE OF FROST & FROST TRUCKING CO. V.
RAILROAD COMM'N, 271 U.S. 583, CF. STEPHENSON V. BINFORD, 287 U.S. 251,
IT IS SIGNIFICANT THAT, WHILE IT WAS THERE HELD THAT TO SUBJECT A
PRIVATE CARRIER TO A COMMON CARRIER'S LIABILITIES AS A CONDITION OF
PERMITTING A LOCAL TRUCKING COMPANY TO USE THE HIGHWAYS WAS VIOLATIVE
OF DUE PROCESS, THE OPINION DID NOT EVEN ADVERT TO THE EARLIER CASE OF
PIERCE OIL CORP. V. PHOENIX RFG.  CO., 259 U.S. 125, IN WHICH THE
IMPOSITION OF A COMMON CARRIER'S LIABILITIES ON A PRIVATE OIL CARRIER
WAS UPHELD AS A CONDITION ON THE ENTRY OF THE FOREIGN CORPORATION. 

FN4  THUS IT HAS BEEN HELD THAT A STATE MAY, AS A CONDITION OF
ADMISSION, REQUIRE COMPLIANCE WITH LOCAL ANTITRUST POLICY, WATERS
PIERCE OIL CO. V. TEXAS, 177 U.S. 28, EVEN AS TO THE OPERATIONS OF
FOREIGN CORPORATIONS IN ANOTHER STATE, HAMMOND PACKING CO. V. ARKANSAS,
212 U.S. 322.  IT MAY REQUIRE THE ASSUMPTION BY A PRIVATE CARRIER OF
SOME OF THE DUTIES OF A COMMON CARRIER, PIERCE OIL CORP. V. PHOENIX
RFG.  CO., 259 U.S. 125; AND IT MAY IMPOSE METHODS OF SUBSTITUTED
SERVICE ON FOREIGN CORPORATIONS WHICH, IF APPLIED TO INDIVIDUALS, WOULD
BE VIOLATIVE OF DUE PROCESS, WASHINGTON V. SUPERIOR COURT, 289 U.S.
361. 

FN5  SUCH CASES AS ST. LOUIS COTTON COMPRESS CO. V. ARKANSAS, 260
U.S. 346, AND FIDELITY & DEPOSIT CO. V. TAFOYA, 270 U.S. 426,
INVALIDATING STATE STATUTES WHICH ATTEMPTED TO PREVENT OR PENALIZE ACTS
OUTSIDE OF THE FORUM STATE ARE NOT PERTINENT.  IN THESE CASES A STATE
WAS SEEKING TO ASSERT ITS POWER OVER THE HAPPENINGS IN ANOTHER STATE. 
AND SO, LIKEWISE, A STATE MAY NOT TAX PROPERTY WITHIN THE TAXING
JURISDICTION OF ANOTHER STATE. 
..END :













OPPER V. UNITED STATES 348 U.S. 84 


NO. 49.  ARGUED OCTOBER 22, 1954 - DECIDED DECEMBER 6, 1954 - 211 F.2D
719, AFFIRMED. 


PETITIONER WAS CONVICTED OF VIOLATING 18 U.S.C. SECS. 2 AND 281, ON
CHARGES THAT HE HAD CONSPIRED WITH AND INDUCED A FEDERAL EMPLOYEE TO
ACCEPT OUTSIDE COMPENSATION FOR SERVICES IN A MATTER BEFORE A FEDERAL
AGENCY IN WHICH THE UNITED STATES HAD AN INTEREST.  THE GOVERNMENT
RELIED UPON VOLUNTARY ORAL AND WRITTEN STATEMENTS MADE BY PETITIONER TO
THE FEDERAL BUREAU OF INVESTIGATION AND UPON OTHER INDEPENDENT
EVIDENCE.  THE STATEMENTS MADE BY PETITIONER TO THE F.B.I. WERE
EXCULPATORY AND WERE NOT CONFESSIONS, BUT WERE ADMISSIONS OF FACT
ESSENTIAL TO PROVE THE CHARGE AGAINST PETITIONER AND OF AN ELEMENT OF
THE CRIME.  HELD: 

1.  AN ACCUSED'S EXTRAJUDICIAL ADMISSION OF ESSENTIAL FACTS OR
ELEMENTS OF THE CRIME, MADE SUBSEQUENT TO THE CRIME, ARE OF THE SAME
CHARACTER AS CONFESSIONS, AND CORROBORATION BY INDEPENDENT EVIDENCE IS
REQUIRED.  PP. 89-92. 

(A)  THE REQUIREMENT OF CORROBORATION APPLIES TO EXCULPATORY
STATEMENTS TO THE SAME EXTENT THAT IT APPLIES TO INCRIMINATORY
STATEMENTS.  PP. 91-92. 

2.  THE JURY'S FINDING IN THIS CASE, FROM THE ADMISSIONS OF ESSENTIAL
FACTS TOGETHER WITH ALL THE OTHER EVIDENCE, THAT THE GUILT OF
PETITIONER HAD BEEN ESTABLISHED BEYOND A REASONABLE DOUBT IS SUPPORTED
BY SUBSTANTIAL EVIDENCE.  PP. 92-94. 

(A)  THE CORROBORATIVE EVIDENCE NEED NOT BE SUFFICIENT, INDEPENDENT
OF THE STATEMENTS, TO ESTABLISH THE CORPUS DELICTI.  P. 93. 

(B)  IT IS SUFFICIENT IF THE CORROBORATION SUPPORTS THE ESSENTIAL
FACTS ADMITTED SUFFICIENTLY TO JUSTIFY A JURY INFERENCE OF THEIR TRUTH;
BUT THOSE FACTS PLUS THE OTHER EVIDENCE MUST BE SUFFICIENT TO FIND
GUILT BEYOND A REASONABLE DOUBT.  P. 93. 

3.  THERE IS NOTHING IN THE RECORD IN THIS CASE REQUIRING REVERSAL
BECAUSE OF ANY CONFUSION OF INJUSTICE ARISING FROM THE TRIAL OF
PETITIONER JOINTLY WITH A CODEFENDANT.  PP. 94-95. 

OPPER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER SEEKS REVIEW OF A CONVICTION UNDER CHARGES THAT HE
VIOLATED 18 U.S.C. SEC.  281, A SECTION WHICH PUNISHES EMPLOYEES OF THE
UNITED STATES WHO RECEIVE OUTSIDE COMPENSATION FOR ANY SERVICES TO BE
RENDERED IN ANY MATTER BEFORE A FEDERAL DEPARTMENT OR AGENCY IN WHICH
THE UNITED STATES IS A PARTY.  PETITIONER WAS NOT HIMSELF AN EMPLOYEE
BUT WAS CHARGED WITH INDUCING A FEDERAL EMPLOYEE TO ACCEPT COMPENSATION
FOR SUCH SERVICES THROUGH CONSPIRING WITH HIM FOR THAT PURPOSE.  SUCH
INDUCEMENT VIOLATES 18 U.S.C. SECS. 2 AND 281.  THE SECTIONS ARE SET
OUT IN THE MARGIN.  (FN1) 

COUNT 1 OF THE INDICTMENT CHARGED, IN SUBSTANCE, THAT ON OR ABOUT
OCTOBER 1, 1950, HOLLIFIELD, AN EMPLOYEE OF THE UNITED STATES, AGREED
TO RECEIVE $1,750 FROM THE PETITIONER FOR SERVICES TO BE RENDERED BY
HOLLIFIELD IN REGARD TO PURCHASE REQUESTS IN WHICH THE UNITED STATES
HAD A DIRECT INTEREST.  THE SERVICES CONSISTED OF HOLLIFIELD'S
RECOMMENDING APPROVAL AND PROCUREMENT BY THE DEPARTMENT OF THE AIR
FORCE OF CERTAIN TYPES OF SUN GOGGLES AND SKI GOGGLES WHICH WERE TO BE
USED IN AIR FORCE SURVIVAL KITS.  COUNT 4 CHARGED RECEIPT BY HOLLIFIELD
OF $200 ON OR ABOUT AUGUST 5, 1951.  EACH OF THESE TWO COUNTS CHARGED
THAT PETITIONER AIDED, ABETTED, INDUCED AND PROCURED HOLLIFIELD TO
UNLAWFULLY RECEIVE THE COMPENSATION. 

THE FIFTH COUNT CHARGED A CONSPIRACY BETWEEN HOLLIFIELD AND THE
PETITIONER FROM OCTOBER 1, 1950, UNTIL SEPTEMBER 26, 1951, TO PERFORM
THE UNLAWFUL ACTS ALLEGED.  CONVICTIONS ON OTHER COUNTS WERE REVERSED. 

HOLLIFIELD AND THE PETITIONER WERE TRIED JOINTLY AFTER THE
PETITIONER'S MOTION FOR SEVERANCE WAS DENIED.  THE JURY FOUND
PETITIONER GUILTY ON ALL COUNTS AND SENTENCE WAS DULY IMPOSED.  ON
APPEAL THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED THE
CONVICTION AS TO THE ABOVE COUNTS NOW BEFORE US.  211 F.2D 719. 

CERTIORARI WAS GRANTED, 347 U.S. 1010, BECAUSE OF ASSERTED VARIANCE
OR CONFLICT BETWEEN THE LEGAL CONCLUSION REACHED IN THIS CASE - THAT AN
EXTRAJUDICIAL, EXCULPATORY STATEMENT OF AN ACCUSED, SUBSEQUENT TO THE
ALLEGED CRIME, NEEDS NO CORROBORATION - AND OTHER CASES TO THE
CONTRARY.  (FN2) THIS COURT, IN GRANTING CERTIORARI, LIMITED REVIEW TO
THE THREE ISSUES RAISED BY THE PETITIONER WHICH WERE CONSIDERED
IMPORTANT TO THE ADMINISTRATION OF CRIMINAL LAW AND UPON WHICH THERE
APPEAR TO BE SOME DIVERGENCE OF OPINION AMONG THE COURTS OF APPEALS. 
(FN3) 

HOLLIFIELD WAS EMPLOYED BY THE UNITED STATES AIR FORCE AT THE AERO
MEDICAL LABORATORY AT WRIGHT FIELD, DAYTON, OHIO.  HIS JOB ENTAILED,
AMONG OTHER THINGS, PREPARING THE SPECIFICATIONS OF SURVIVAL KITS AND
DETERMINING WHETHER GOODS SUBMITTED FOR THOSE KITS, INCLUDING GOGGLES,
COMPLIED WITH THE SPECIFICATIONS.  PETITIONER RESIDED IN CHICAGO AND
WAS A SUBCONTRACTOR ON VARIOUS PROJECTS FOR EQUIPPING THESE KITS.  THE
PETITIONER SUPPLIED CERTAIN GOGGLES TO A PRIME CONTRACTOR WHO SUBMITTED
THEM FOR APPROVAL FOR USE IN THE KITS.  THE GOGGLES WERE REJECTED ON
JANUARY 23, 1951, BECAUSE OF "MARKED DEVIATIONS" FROM APPLICABLE
SPECIFICATIONS.  A SHORT TIME THEREAFTER HOLLIFLELD ARRANGED A
CONFERENCE WITH THE PROJECT ENGINEER WHO HAD MADE THE REJECTION.  AT
THE CONFERENCE HOLLIFIELD, ACCOMPANIED BY THE PETITIONER, STRONGLY
URGED ACCEPTANCE OF PETITIONER'S GOGGLES.  IT WAS CONCLUDED THAT
HOLLIFIELD SHOULD PREPARE A WRITTEN MEMORANDUM OF HIS REASONS FOR
ACCEPTANCE.  A WRITTEN MEMORANDUM DATED JANUARY 25, 1951, WAS
PREPARED.  (FN4)  THEREAFTER RECONSIDERATION WAS GRANTED AND ON
FEBRUARY 3, 1951, USE OF PETITIONER'S GOGGLES WAS RECOMMENDED. 

THE GOVERNMENT FURTHER ESTABLISHED BY VARIOUS RECORDS THAT ON APRIL
13, 1951, A LONG-DISTANCE CALL WAS MADE FROM HILLIFIELD'S RESIDENCE IN
DAYTON TO PETITIONER IN CHICAGO; THAT PETITIONER ON APRIL 16, 1951,
CASHED A CHECK FOR $1,000, WHICH CHECK WAS DATED APRIL 13, 1951; AND
THAT A ROUND-TRIP AIRLINE TICKET WAS ISSUED IN HOLLIFIELD'S NAME FOR
APRIL 14, 1951, FLIGHTS FROM DAYTON TO CHICAGO AND RETURN. 

THE EVIDENCE OF THE GOVERNMENT THUS FAR SUMMARIZED WAS ESTABLISHED BY
INDEPENDENT PROOF.  THE REMAINDER OF THE GOVERNMENT'S CASE DEPENDED
UPON A WRITTEN STATEMENT SUBMITTED BY THE PETITIONER TO THE FEDERAL
BUREAU OF INVESTIGATION AND VARIOUS ORAL STATEMENTS MADE BY THE
PETITIONER TO THE FBI IN SEVERAL INTERVIEWS. 

THE SUBSTANCE OF THESE STATEMENTS WAS THAT THE PETITIONER HAD FIRST
MET HOLLIFIELD IN OCTOBER 1950, AND HAD SEEN HIM SOME FIFTEEN TIMES
THEREAFTER AT WRIGHT FIELD AND IN CHICAGO AND THAT HE HAD DISCUSSED THE
REJECTION OF THE GOGGLES WITH HOLLIFIELD.  HE FURTHER STATED THAT
HOLLIFIELD, PURSUANT TO AN EARLIER PHONE CALL, CAME TO HIS OFFICE IN
CHICAGO ON SATURDAY, APRIL 14, 1951, AND HE HAD HANDED HOLLIFIELD
$1,000 WHICH HE HAD TAKEN FROM CASH HE HAD AT HOME AND WHICH CASH HE
HAD REPLENISHED ON MONDAY, APRIL 16, 1951, BY CASHING A CHECK DATED
APRIL 13, 1951, IN THAT AMOUNT.  PETITIONER ALSO ADMITTED GIVING
HOLLIFIELD ANOTHER $200 SOME TWO WEEKS LATER. 

IN BOTH HIS ORAL AND WRITTEN STATEMENTS PETITIONER INSISTED THAT HE
HAD NEVER REQUESTED ANYTHING OF HOLLIFIELD IN REGARD TO THE GOGGLES;
THAT THE MONEY WAS STRICTLY A LOAN TO HOLLIFIELD BASED UPON
HOLLIFIELD'S REQUEST TO HIM THAT HE NEEDED MONEY IN REGARD TO A
MORTGAGE ON HIS HOME; THAT NO SECURITY WAS GIVEN FOR THE LOAN; THAT HE
HAD NO RECEIPT OR AGREEMENT FOR INTEREST; THAT HE HAD NO PERSONAL
KNOWLEDGE AS TO WHETHER HOLLIFIELD OWNED A HOME OR NOT; AND THAT NONE
OF THE MONEY HAD BEEN REPAID.  PETITIONER CONSISTENTLY AND SPECIFICALLY
DENIED ANY GUILT OF THE OFFENSE CHARGED. 

THE PETITIONER MAKES NO CLAIM THAT ANY OF THE EXTRAJUDICIAL
STATEMENTS WERE ANYTHING BUT VOLUNTARY.  IN FACT THE RECORD DISCLOSES
THAT PETITIONER WAS COOPERATIVE WITH THE FBI IN FURNISHING INFORMATION
AND THAT PETITIONER HAD AMPLE OPPORTUNITY TO CONSULT COUNSEL IN
REFERENCE TO THE FBI INTERVIEWS AND STATEMENTS HE MADE.  PETITIONER'S
PRIME CONTENTION IS THAT HIS STATEMENTS MADE AFTER THE DATE OF THE
OFFENSE CHARGED ARE SO ANALOGOUS TO A CONFESSION THAT THE SAME RULES
APPLICABLE TO CONFESSIONS MUST BE APPLIED AND THAT IF SUCH RULES ARE
APPLIED THE CONVICTION CANNOT STAND. 

FIRST.  IT IS PETITIONER'S CONTENTION THAT WHERE EXTRAJUDICIAL
ADMISSIONS THAT POINT TO GUILT ARE MADE BY THE ACCUSED, AFTER THE DATE
OF THE ACTS CHARGED AS CRIME, TESTIMONY BY WITNESSES OTHER THAN THE
ACCUSED AS TO SUCH ORAL OR WRITTEN ADMISSIONS CANNOT BE ACCEPTED AS
EVIDENCE WITHOUT CORROBORATION OF THE FACTS STATED.  THAT CONCLUSION
DERIVES FROM PETITIONER'S POSITION THAT ADMISSIONS OF ESSENTIAL FACTS
TO PROVE A CRIME OR ADMISSIONS OF SOME OF ITS ELEMENTS ARE SO ANALOGOUS
TO CONFESSIONS OF GUILT THAT THE SAME RULE AS TO CORROBORATION SHOULD
BE APPLIED. 

IN THE UNITED STATES OUR CONCEPT OF JUSTICE THAT FINDS NO MAN GUILTY
UNTIL PROVEN HAS LED OUR STATE AND FEDERAL COURTS GENERALLY TO REFUSE
CONVICTION ON TESTIMONY CONCERNING CONFESSIONS OF THE ACCUSED NOT MADE
BY HIM AT THE TRIAL OF HIS CASE.  WIGMORE, EVIDENCE (3D ED.), SEC.
2071.  SEE WARSZOWER V. UNITED STATES, 312 U.S. 342, 345, NOTE 2.  WE
HAVE GONE FURTHER IN THAT DIRECTION THAN HAS THE COMMON LAW OF
ENGLAND.  THERE THE COURTS HAVE BEEN HESITANT TO LAY DOWN A RULE THAT
AN UNCORROBORATED EXTRAJUDICIAL CONFESSION MAY NOT SEND AN ACCUSED TO
PRISON OR TO DEATH.  (FN5)  IN OUR COUNTRY THE DOUBT PERSISTS THAT THE
ZEAL OF THE AGENCIES OF PROSECUTION TO PROTECT THE PEACE, THE SELF
INTEREST OF THE ACCOMPLICE, THE MALICIOUSNESS OF AN ENEMY OR THE
ABERRATION OF WEAKNESS OF THE ACCUSED UNDER THE STRAIN OF SUSPICION MAY
TINGE OR WARP THE FACTS OF THE CONFESSION.  ADMISSIONS, RETOLD AT A
TRIAL, ARE MUCH LIKE HEARSAY, THAT IS, STATEMENTS NOT MADE AT THE
PENDING TRIAL.  THEY HAD NEITHER THE COMPULSION OF THE OATH NOR THE
TEST OF CROSS-EXAMINATION.  (FN6)  THEY ARE COMPETENT AS AN ADMISSION
AGAINST INTEREST. 

THE ADMISSIONS DETAILED ABOVE ESTABLISH AN ACQUAINTANCE BETWEEN
PETITIONER AND THE EMPLOYEE, AND A MOTIVE BUT NOT A PURPOSE TO HAVE THE
FEDERAL EMPLOYEE AGREE TO RECEIVE PROHIBITED COMPENSATION FOR THE
SERVICES.  MORE IMPORTANTLY THEY ESTABLISH THE RECEIPT OF MONEY BY THE
EMPLOYEE AROUND THE TIME OF THE ALLEGED INDUCEMENT BY CONSPIRACY TO
SECURE THE EMPLOYEE'S SERVICES BEFORE A FEDERAL AGENCY CONCERNING A
CONTRACT IN WHICH THE UNITED STATES WAS INTERESTED.  WHILE THE ORAL AND
VERBAL STATEMENTS WERE NOT CONFESSIONS OF GUILT, THEY WERE ADMISSIONS
OF FACT ESSENTIAL TO PROVE THE CHARGE AGAINST PETITIONER AND INDEED OF
AN ELEMENT OF THE CRIME, INDUCEMENT TO RECEIVE THE PROHIBITED
COMPENSATION OR AN ILLEGAL ACCEPTANCE OF A PROMISE TO PAY. 

IN WARSZOWER V. UNITED STATES, 312 U.S. 342, 348, WE HELD THAT
ALTHOUGH THE ONLY PROOF OF AN ESSENTIAL ELEMENT OF MAKING A FALSE
STATEMENT WAS ADMISSIONS TO THE CONTRARY PRIOR TO THE CRIME CHARGED,
SUFFICIENT TO CONVICT IF FOUND TRUE, SUCH AN ADMISSION WOULD TAKE THE
CASE TO THE JURY.  WE SAID SUCH ADMISSIONS "CONTAIN NONE OF THE
INHERENT WEAKNESSES OF CONFESSIONS OR ADMISSIONS AFTER THE FACT."  WE
THINK THAT AN ACCUSED'S ADMISSIONS OF ESSENTIAL FACTS OR ELEMENTS OF
THE CRIME, SUBSEQUENT TO THE CRIME, ARE OF THE SAME CHARACTER AS
CONFESSIONS AND THAT CORROBORATION SHOULD BE REQUIRED.  SEE I
GREENLEAF, EVIDENCE (16TH ED.), SEC. 216; SMITH V. UNITED STATES, POST,
P. 147, DECIDED TODAY. 

THE NEED FOR CORROBORATION EXTENDS BEYOND COMPLETE AND CONSCIOUS
ADMISSION OF GUILT - A STRICT CONFESSION.  (FN7)  FACTS ADMITTED THAT
ARE IMMATERIAL AS TO GUILT OR INNOCENCE NEED NO DISCUSSION.  BUT
STATEMENTS OF THE ACCUSED OUT OF COURT THAT SHOW ESSENTIAL ELEMENTS OF
THE CRIME, HERE PAYMENT OF MONEY, NECESSARY TO SUPPLEMENT AN OTHERWISE
INADEQUATE BASIS FOR A VERDICT OF CONVICTION, STAND DIFFERENTLY.  SUCH
ADMISSIONS HAVE THE SAME POSSIBILITIES FOR ERROR AS CONFESSIONS.  THEY,
TOO, MUST BE CORROBORATED.  SEE WILSON V. UNITED STATES, 162 U.S. 613,
621. 

IT IS URGED BY THE GOVERNMENT, HOWEVER, THAT SUCH REQUIREMENT SHOULD
NOT APPLY TO EXCULPATORY STATEMENTS, THAT IS, THOSE THAT EXPLAIN
ACTIONS RATHER THAN ADMIT GUILT.  IT IS THOUGHT THAT EXCULPATORY
STATEMENTS DO NOT HAVE BEHIND THEM THE PRESSURE OF COERCION OR THE
INDUCEMENT OF ESCAPING THE CONSEQUENCES OF CRIME.  THIS ACCORDS WITH
PROFESSOR WIGMORE'S VIEW.  SEE NOTE 7, SUPRA. THE STATEMENTS HERE ARE
EXCULPATORY.  SEE SUMMARY, SUPRA.  THERE IS NO OPINION OF THIS COURT
DECLARING OR DECLINING SUCH AN EXCEPTION.  (FN8)  WE CONCLUDE THAT
EXCULPATORY STATEMENTS, HOWEVER, MAY NOT DIFFER FROM OTHER ADMISSIONS
OF INCRIMINATING FACTS.  GIVEN WHEN THE ACCUSED IS UNDER SUSPICION,
THEY BECOME QUESTIONABLE JUST AS TESTIMONY BY WITNESSES TO OTHER
EXTRAJUDICIAL STATEMENTS OF THE ACCUSED.  THEY CALL FOR CORROBORATION
TO THE SAME EXTENT AS OTHER STATEMENTS. 

SECOND.  WE NEXT CONSIDER THE EXTENT OF THE CORROBORATION OF
ADMISSIONS NECESSARY AS A MATTER OF LAW FOR A JUDGMENT OF CONVICTION. 
ON THIS POINT THE CASES IN THE FEDERAL COURTS SHOW DIVERGENCE.  ONE
LINE OF CASES FOLLOWS THE RULE SET OUT IN DAECHE V. UNITED STATES, 250
F. 566, THAT THE CORROBORATIVE EVIDENCE IS SUFFICIENT IF IT TOUCHES THE
CORPUS DELICTI "IN THE SENSE OF THE INJURY AGAINST WHOSE OCCURRENCE THE
LAW IS DIRECTED," 250 F., AT 571, AND IS OF A TYPE WHICH GOES TO
FORTIFY THE TRUTHFULNESS OF THE CONFESSION.  (FN9)  SOME CASES WOULD
SEEM ONLY TO REQUIRE THE LATTER HALF OF THE DAECHE RULE; THAT IS, PROOF
OF ANY CORROBORATING CIRCUMSTANCES IS ADEQUATE WHICH GOES TO FORTIFY
THE TRUTH OF THE CONFESSION OR TENDS TO PROVE FACTS EMBRACING IN THE
CONFESSION.  THERE IS NO NECESSITY THAT SUCH PROOF TOUCH THE CORPUS
DELICTI AT ALL, THOUGH, OF COURSE, THE FACTS OF THE ADMISSION PLUS THE
CORROBORATING EVIDENCE MUST ESTABLISH ALL ELEMENTS OF THE CRIME. 
(FN10) 

OTHER DECISIONS TEND TO FOLLOW THE RULE ENUNCIATED IN FORTE V. UNITED
STATES, 68 APP. D.C. 111, 115, 119, 94 F.2D 236, 240, 244, THAT THE
CORROBORATION MUST CONSIST OF SUBSTANTIAL EVIDENCE, INDEPENDENT OF THE
ACCUSED'S EXTRAJUDICIAL STATEMENTS, WHICH TENDS TO ESTABLISH THE WHOLE
OF THE CORPUS DELICTI.  (FN11) 

WHETHER THE DIFFERENCES IN QUANTUM AND TYPE OF INDEPENDENT PROOF ARE
IN PRINCIPLE OR OF EXPRESSION IS DIFFICULT TO DETERMINE.  EACH CASE HAS
ITS OWN FACTS ADMITTED AND ITS OWN CORROBORATIVE EVIDENCE, WHICH LEADS
TO PATENT INDIVIDUALIZATION OF THE OPINIONS.  HOWEVER, WE THINK THE
BETTER RULE TO BE THAT THE CORROBORATIVE EVIDENCE NEED NOT BE
SUFFICIENT, INDEPENDENT OF THE STATEMENTS, TO ESTABLISH THE CORPUS
DELICTI.  IT IS NECESSARY, THEREFORE, TO REQUIRE THE GOVERNMENT TO
INTRODUCE SUBSTANTIAL INDEPENDENT EVIDENCE WHICH WOULD TEND TO
ESTABLISH THE TRUSTWORTHINESS OF THE STATEMENT.  THUS, THE INDEPENDENT
EVIDENCE SERVES A DUAL FUNCTION.  IT TENDS TO MAKE THE ADMISSION
RELIABLE, THUS CORROBORATING IT WHILE ALSO ESTABLISHING INDEPENDENTLY
THE OTHER NECESSARY ELEMENTS OF THE OFFENSE.  SMITH V. UNITED STATES,
POST, P. 147.  IT IS SUFFICIENT IF THE CORROBORATION SUPPORTS THE
ESSENTIAL FACTS ADMITTED SUFFICIENTLY TO JUSTIFY A JURY INFERENCES OF
THEIR TRUTH.  THOSE FACTS PLUS THE OTHER EVIDENCE BESIDES THE ADMISSION
MUST, OF COURSE, BE SUFFICIENT TO FIND GUILT BEYOND A REASONABLE
DOUBT.    TURNING TO THE INSTANT CASE, IT IS CLEAR THAT THERE WAS
SUBSTANTIAL INDEPENDENT EVIDENCE TO ESTABLISH DIRECTLY THE TRUTHFULNESS
OF PETITIONER'S ADMISSION THAT HE PAID THE GOVERNMENT EMPLOYEE MONEY. 
(FN12)  BUT THIS DIRECT CORROBORATIVE EVIDENCE TENDING TO PROVE THE
TRUTHFULNESS OF PETITIONER'S STATEMENTS WOULD NOT ESTABLISH A CORPUS
DELICTI OF THE OFFENSE CHARGED.  RATHER IT TENDS TO ESTABLISH ONLY ONE
ELEMENT OF THE OFFENSE - PAYMENT OF MONEY.  THE GOVERNMENT THEREFORE
HAD TO PROVE THE OTHER ELEMENT OF THE CORPUS DELICTI - RENDERING OF
SERVICES BY THE GOVERNMENT EMPLOYEE - ENTIRELY BY INDEPENDENT
EVIDENCE.  (FN13)  THIS INDEPENDENT EVIDENCE OF SERVICES AND OF FACTS
WITHIN THE ADMISSIONS SEEMS ADEQUATE TO CONSTITUTE CORROBORATION OF
PETITIONER'S EXTRAJUDICIAL ADMISSIONS AND ALSO ESTABLISH THE CORPUS
DELICTI.  THE JURY WAS FREE THEREFORE TO CONSIDER THE ADMISSIONS IN
CONNECTION WITH ALL THE OTHER EVIDENCE IN THE CASE AND TO DECIDE
WHETHER THE GUILT OF THE PETITIONER HAD BEEN ESTABLISHED BEYOND A
REASONABLE DOUBT.  THEY FOUND THAT IT WAS AND WE FEEL THAT SUCH FINDING
IS SUPPORTED BY SUBSTANTIAL EVIDENCE. 

THIRD.  PETITIONER'S FINAL COMPLAINT ARISES OUT OF THE FACT THAT THE
CONSPIRATORS WERE TRIED JOINTLY.  THE PETITIONER FEELS THAT THE JURY
MIGHT HAVE BECOME CONFUSED AND IMPROPERLY CONSIDERED STATEMENTS OF
CODEFENDANT HOLLIFIELD IN REACHING ITS VERDICT AS TO PETITIONER.  OTHER
THAN THIS GENERAL POSSIBILITY OF CONFUSION, HE POINTS OUT NOTHING
SPECIFICALLY PREJUDICIAL RESULTING FROM THE JOINT TRIAL.  THE FACT THAT
THE COURT OF APPEALS BELOW REVERSED ON TWO COUNTS BECAUSE OF LACK OF
EVIDENCE INDEPENDENTLY OF STATEMENTS OF HOLLIFIELD IS EMPHASIZED TO
BOLSTER THIS CLAIM OF ERROR AS TO THE REMAINING COUNTS. 

IT WAS WITHIN THE SOUND DISCRETION OF THE TRIAL JUDGE AS TO WHETHER
THE DEFENDANTS SHOULD BE TRIED TOGETHER OR SEVERALLY AND THERE IS
NOTHING IN THE RECORD TO INDICATE AN ABUSE OF SUCH DISCRETION WHEN
PETITIONER'S MOTION FOR SEVERANCE WAS OVERRULED.  THE TRIAL JUDGE HERE
MADE CLEAR AND REPEATED ADMONITIONS TO THE JURY AT APPROPRIATE TIMES
THAT HOLLIFIELD'S INCRIMINATORY STATEMENTS WERE NOT TO BE CONSIDERED IN
ESTABLISHING THE GUILT OF THE PETITIONER.  (FN14)  TO SAY THAT THE JURY
MIGHT HAVE BEEN CONFUSED AMOUNTS TO NOTHING MORE THAN AN UNFOUNDED
SPECULATION THAT THE JURORS DISREGARDED CLEAR INSTRUCTIONS OF THE COURT
IN ARRIVING AT THEIR VERDICT.  OUR THEORY OF TRIAL RELIES UPON THE
ABILITY OF A JURY TO FOLLOW INSTRUCTIONS.  THERE IS NOTHING IN THIS
RECORD TO CALL FOR REVERSAL BECAUSE OF ANY CONFUSION OR INJUSTICE
ARISING FROM THE JOINT TRIAL.  THE RECORD CONTAINS SUBSTANTIAL
COMPETENT EVIDENCE UPON WHICH THE JURY COULD FIND PETITIONER GUILTY. 
THE JUDGMENT IS AFFIRMED. 

FN1  18 U.S.C. SEC. 281: 

"WHOEVER, BEING  ...  (AN) OFFICER OR EMPLOYEE OF THE UNITED STATES
OR ANY DEPARTMENT OR AGENCY THEREOF, DIRECTLY OR INDIRECTLY RECEIVES OR
AGREES TO RECEIVE, ANY COMPENSATION FOR ANY SERVICES RENDERED OR TO BE
RENDERED, EITHER BY HIMSELF OR ANOTHER, IN RELATION TO ANY PROCEEDING,
CONTRACT, CLAIM, CONTROVERSY, CHARGE, ACCUSATION, ARREST, OR OTHER
MATTER IN WHICH THE UNITED STATES IS A PARTY OR DIRECTLY OR INDIRECTLY
INTERESTED, BEFORE ANY DEPARTMENT, AGENCY, COURT MARTIAL, OFFICER, OR
ANY CIVIL, MILITARY, OR NAVAL COMMISSION, SHALL BE FINED NOT MORE THAN
$10,000 OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH; AND SHALL BE
INCAPABLE OF HOLDING ANY OFFICE OF HONOR, TRUST, OR PROFIT UNDER THE
UNITED STATES." 

ID., SEC. 2: 

"(A)  WHOEVER COMMITS AN OFFENSE AGAINST THE UNITED STATES OR AIDS,
ABETS, COUNSELS, COMMANDS, INDUCES OR PROCURES ITS COMMISSION, IS
PUNISHABLE AS A PRINCIPAL." 

FN2  WARSZOWER V. UNITED STATES, 312 U.S. 342; CALDERON V. UNITED
STATES, 207 F.2D 377; PINES V. UNITED STATES, 123 F.2D 825; GULOTTA V.
UNITED STATES, 113 F.2D 683. 

FN3  THE THREE QUESTIONS AS SET OUT BY THE PETITIONER UPON WHICH
CERTIORARI WAS GRANTED ARE:  "3.  WHETHER, WHERE AN ADMISSION IS MADE
TO LAW ENFORCEMENT OFFICERS AFTER THE DATE OF THE ACTS CHARGED AS
CRIMES, IT IS TO BE SO FAR TREATED AS A CONFESSION THAT, IN THE ABSENCE
OF CORROBORATION, IT IS INADMISSIBLE. 

"4.  WHETHER A CONVICTION CAN BE SUSTAINED WHERE THERE IS, APART FROM
AN ADMISSION MADE TO LAW ENFORCEMENT OFFICERS AFTER THE DATE OF THE
ACTS CHARGED AS CRIMES, NO PROOF OF THE CORPUS DELICTI. 

"5.  WHETHER, IN CONVICTING PETITIONER THE JURY, AND IN SUSTAINING
HIS CONVICTION THE COURT BELOW, IN FACT ADMITTED, AS AGAINST HIM,
STATEMENTS OF HIS CO-DEFENDANT WHICH, AS A MATTER OF LAW, WERE NOT
COMPETENT EVIDENCE AGAINST HIM."  347 U.S. 1010. 

FN4 THE MEMORANDUM, ALTHOUGH SIGNED BY ANOTHER, BORE HOLLIFIELD'S
INITIALS AND EMBODIED THE REASONS HE HAD ORALLY URGED AT THE
CONFERENCE. 

FN5  IN SOME CASES A PERSON MAY BE CONVICTED ON HIS OWN CONFESSION
WITHOUT ANY CORROBORATING EVIDENCE.  9 HALSBURY'S LAWS OF ENGLAND (2D
ED.)  SEC.  291, P. 207; SEC. 268, P. 183, NOTE G; I PHILLIPPS AND
ARNOLD, EVIDENCE (5TH AM. ED.), P. 441.  IN MANSLAUGHTER THIS
CONCLUSION IS CAUTIOUSLY APPLIED.  REGINA V. BURTON, DEARSLY'S CROWN
CASES (1852-1856) 282.  PROOF OF THE CORPUS DELICTI IS REQUIRED. 
HALSBURY, SUPRA, SEC. 768; R. V. DAVIDSON, 25 CR. APP.  R. 21. 

FN6  SEE AMERICAN LAW INSTITUTE MODEL CODE OF EVIDENCE, ADOPTED MAY
15, 1942, FOREWORD, PROFESSOR EDMUND M. MORGAN, 36, RULE 501; WIGMORE,
EVIDENCE (3D ED.), SEC. 1048. 

FN7  "A CONFESSION IS AN ACKNOWLEDGMENT IN EXPRESS WORDS, BY THE
ACCUSED IN A CRIMINAL CASE, OF THE TRUTH OF THE GUILTY FACT CHARGED OR
OF SOME ESSENTIAL PART OF IT."  PROFESSOR WIGMORE EXCLUDES FROM THE
RULE OF CORROBORATION EXCULPATORY STATEMENTS:  "EXCULPATORY STATEMENTS,
DENYING GUILT, CANNOT BE CONFESSIONS.  THIS OUGHT TO BE PLAIN ENOUGH,
IF LEGAL TERMS ARE TO HAVE ANY MEANING AND IF THE SPIRIT OF THE GENERAL
PRINCIPLE IS TO BE OBEYED."  ALSO, "ACKNOWLEDGMENTS OF SUBORDINATE
FACTS COLORLESS WITH REFERENCE TO ACTUAL GUILT." 

"AN ACKNOWLEDGMENT OF A SUBORDINATE FACT, NOT DIRECTLY INVOLVING
GUILT, OR, IN OTHER WORDS, NOT ESSENTIAL TO THE CRIME CHARGED, IS NOT A
CONFESSION; BECAUSE THE SUPPOSED GROUND OF UNTRUSTWORTHINESS OF
CONFESSIONS  ...  IS THAT A STRONG MOTIVE IMPELS THE ACCUSED TO EXPOSE
AND DECLARE HIS GUILT AS THE PRICE OF PURCHASING IMMUNITY FROM PRESENT
PAIN OR SUBSEQUENT PUNISHMENT; AND THUS, BY HYPOTHESIS, THERE MUST BE
SOME QUALITY OF GUILT IN THE FACT ACKNOWLEDGED.  CONFESSIONS ARE THUS
ONLY ONE SPECIES OF ADMISSIONS; AND ALL OTHER ADMISSIONS THAN THOSE
WHICH DIRECTLY TOUCH THE FACT OF GUILT ARE WITHOUT THE SCOPE OF THE
PECULIAR RULES AFFECTING THE USE OF CONFESSIONS."  WIGMORE, EVIDENCE
(3D ED.), SEC. 821. 

FN8  BRAM V. UNITED STATES, 168 U.S. 532, AN IMPORTANT CASE IN THE
FIELD OF ADMISSIONS, EXCLUDES SUCH A STATEMENT ON THE GROUND OF
COERCION, NOT EXCULPATION.  P. 562. 

FN9  E.G., JORDAN V. UNITED STATES, 60 F.2D 4; UNITED STATES V.
KERTESS, 139 F.2D 923; FORLINI V. UNITED STATES, 12 F.2D 631, 634. 

FN10  ACCORD, UNITED STATES V. WILLIAMS, 1 CLIFF.  5, 28 FED. CAS.,
NO. 16,707, PP. 636, 644; PEARLMAN V. UNITED STATES, 10 F.2D 460;
WYNKOOP V. UNITED STATES, 22 F.2D 799; BOLLAND V. UNITED STATES, 238 F.
529, 530. 

FN11  ERCOLI V. UNITED STATES, 76 U.S. APP. D.C. 360, 361, 362, 363,
131 F.2D 354, 355, 356, 357, FOLLOWING AND REAFFIRMING FORTE, STATES
THE RULE TO BE THAT CORROBORATION WHICH MERELY TENDS TO SUPPORT THE
CONFESSION IS INSUFFICIENT, AS IT MUST ALSO EMBRACE SUBSTANTIAL
EVIDENCE TOUCHING AND TENDING TO PROVE EACH OF THE MAIN ELEMENTS OR
CONSTITUENT PARTS OF THE CORPUS DELICTI.  ALSO FOLLOWING THIS RULE,
E.G., PINES V. UNITED STATES, 123 F.2D 825; RYAN V. UNITED STATES, 99
F.2D 864; UNITED STATES V. FENWICK, 177 F.2D 488. 

FN12  (1)  THE LONG-DISTANCE CALL FROM HOLLIFIELD'S HOME TO
PETITIONER'S HOME ON APRIL 13, 1951.  (2)  PETITIONER'S $1,000 CHECK
DATED APRIL 13, 1951.  (3)  THE AIRLINE TICKETS IN HOLLIFIELD'S NAME
FOR A FLIGHT TO CHICAGO ON APRIL 14, 1951. 

FN13  THIS WAS ACCOMPLISHED BY INTRODUCTION OF SUBSTANTIALLY
UNCONTROVERTED EVIDENCE OF HOLLIFIELD'S EFFORTS IN GAINING ACCEPTANCE
BY THE GOVERNMENT OF PETITIONER'S PREVIOUSLY REJECTED GOGGLES. 

FN14  RULE 14, FEDERAL RULES OF CRIMINAL PROCEDURE; UNITED STATES V.
BALL, 163 U.S. 662, 672; WALDECK V. UNITED STATES, 2 F.2D 243; OLMSTEAD
V. UNITED STATES, 19 F.2D 842; METCALF V. UNITED STATES, 195 F.2D 213,
217. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS, BELIEVING THAT FORTE V. UNITED STATES, 68 APP.
D.C. 111, 94 F.2D 236, STATES THE BETTER RULE ON CORROBORATION, WOULD
REVERSE THE JUDGMENT BELOW. 
..END :




















BROOKS V. NATIONAL LABOR RELATIONS BOARD 348 U.S. 96 


NO. 21.  ARGUED OCTOBER 18, 1954 - DECIDED DECEMBER 6, 1954 - 204 F.2D
899, AFFIRMED. 


IN A REPRESENTATION ELECTION CONDUCTED BY THE NATIONAL LABOR RELATIONS
BOARD AT PETITIONER'S PLACE OF BUSINESS IN APRIL 1951, A PARTICULAR
UNION WON BY A VOTE OF EIGHT TO FIVE, AND THE BOARD CERTIFIED IT AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE.  A WEEK AFTER THE ELECTION AND THE
DAY BEFORE THE CERTIFICATION, PETITIONER RECEIVED A HANDWRITTEN LETTER
SIGNED BY NINE OF THE 13 EMPLOYEES IN THE BARGAINING UNIT STATING THAT
THEY "ARE NOT IN FAVOR OF BEING REPRESENTED BY" THE UNION.  PETITIONER
THEREUPON REFUSED TO BARGAIN WITH THE UNION.  IN AN UNFAIR LABOR
PRACTICE PROCEEDING UNDER THE AMENDED NATIONAL LABOR RELATIONS ACT, THE
BOARD ORDERED PETITIONER TO BARGAIN.  HELD:  THE BOARD WAS ENTITLED TO
AN ORDER OF ENFORCEMENT FROM THE COURT OF APPEALS.  PP. 97-104. 

(A)  AN EMPLOYER WHO IS PRESENTED WITH EVIDENCE THAT HIS EMPLOYEES
HAVE DESERTED THEIR CERTIFIED UNION IS NOT ENTITLED FORTHWITH TO REFUSE
TO BARGAIN WITH THE UNION.  P. 103. 

(B)  THE FACT THAT A BARGAINING AGENCY MAY BE ASCERTAINED BY METHODS
LESS FORMAL THAN A SUPERVISED ELECTION DOES NOT WARRANT SANCTIONING
INFORMAL REPUDIATION WHERE DECERTIFICATION BY ANOTHER ELECTION IS
PRECLUDED.  PP. 103-104. 

(C)  IT IS NOT WITHIN THE POWER OF THIS COURT TO REQUIRE THE BOARD TO
RELIEVE A SMALL EMPLOYER, LIKE THE ONE INVOLVED IN THIS CASE, OF THE
DUTY THAT MAY BE EXACTED FROM AN ENTERPRISE WITH MANY EMPLOYEES.  P.
104. 

(D)  IT IS WITHIN THE BOARD'S DISCRETION IN CARRYING OUT
CONGRESSIONAL POLICY TO TREAT THE ONE-YEAR CERTIFICATION PERIOD AS
RUNNING FROM THE DATE OF CERTIFICATION RATHER THAN FROM THE DATE OF THE
ELECTION.  P. 104. 

(E)  THE BOARD'S RULE THAT ONE YEAR AFTER CERTIFICATION THE EMPLOYER
MAY ASK FOR AN ELECTION, OR, IF HE HAS FAIR DOUBTS ABOUT THE UNION'S
CONTINUING MAJORITY, HE MAY REFUSE TO BARGAIN FURTHER WITH IT, IS
WITHIN THE BOARD'S ADMINISTRATIVE AUTHORITY.  P. 104. 

BROOKS V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD CONDUCTED A REPRESENTATION
ELECTION IN PETITIONER'S CHRYSLER-PLYMOUTH AGENCY ON APRIL 12, 1951. 
DISTRICT LODGE NO. 727, INTERNATIONAL ASSOCIATION OF MACHINISTS, WON BY
A VOTE OF EIGHT TO FIVE, AND THE LABOR BOARD CERTIFIED IT AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE ON APRIL 20.  A WEEK AFTER THE
ELECTION AND THE DAY BEFORE THE CERTIFICATION, PETITIONER RECEIVED A
HANDWRITTEN LETTER SIGNED BY NINE OF THE 13 EMPLOYEES IN THE BARGAINING
UNIT STATING:  "WE, THE UNDERSIGNED MAJORITY OF THE EMPLOYEES  ...  ARE
NOT IN FAVOR OF BEING REPRESENTED BY UNION LOCAL NO. 727 AS A
BARGAINING AGENT." 

RELYING ON THIS LETTER AND THE DECISION OF THE COURT OF APPEALS FOR
THE SIXTH CIRCUIT IN LABOR BOARD V. VULCAN FORGING CO., 188 F.2D 927,
PETITIONER REFUSED TO BARGAIN WITH THE UNION.  THE LABOR BOARD FOUND,
98 N.L.R.B. 976, THAT PETITIONER HAD THEREBY COMMITTED AN UNFAIR LABOR
PRACTICE IN VIOLATION OF SECS. 8(A)(1) AND 8(A)(5) OF THE AMENDED
NATIONAL LABOR RELATIONS ACT, 61 STAT. 140-141, 29 U.S.C. SECS.
158(A)(1), (A)(5), AND THE COURT OF APPEALS FOR THE NINTH CIRCUIT
ENFORCED THE BOARD'S ORDER TO BARGAIN, 204 F.2D 899.  IN VIEW OF THE
CONFLICT BETWEEN THE CIRCUITS, WE GRANTED CERTIORARI, 347 U.S. 916. 

THE ISSUE BEFORE US IS THE DUTY OF AN EMPLOYER TOWARD A DULY
CERTIFIED BARGAINING AGENT IF, SHORTLY AFTER THE ELECTION WHICH
RESULTED IN THE CERTIFICATION, THE UNION HAS LOST, WITHOUT THE
EMPLOYER'S FAULT, A MAJORITY OF THE EMPLOYEES FROM ITS MEMBERSHIP. 

UNDER THE ORIGINAL WAGNER ACT, THE LABOR BOARD WAS GIVEN THE POWER TO
CERTIFY A UNION AS THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN A
BARGAINING UNIT WHEN IT HAD DETERMINED, BY ELECTION OR "ANY OTHER
SUITABLE METHOD," THAT THE UNION COMMANDED MAJORITY SUPPORT.  SEC.
9(C), 49 STAT. 453.   IN EXERCISING THIS AUTHORITY THE BOARD EVOLVED A
NUMBER OF WORKING RULES, OF WHICH THE FOLLOWING ARE RELEVANT TO OUR
PURPOSE: 

(A)  A CERTIFICATION, IF BASED ON A BOARD-CONDUCTED ELECTION, MUST BE
HONORED FOR A "REASONABLE" PERIOD, ORDINARILY "ONE YEAR," IN THE
ABSENCE OF "UNUSUAL CIRCUMSTANCES."  (FN1) 

(B)  "UNUSUAL CIRCUMSTANCES" WERE FOUND IN AT LEAST THREE SITUATIONS:
(FN2)  (1) THE CERTIFIED UNION DISSOLVED OR BECAME DEFUNCT; (FN3) (2)
AS A RESULT OF A SCHISM, SUBSTANTIALLY ALL THE MEMBERS AND OFFICERS OF
THE CERTIFIED UNION TRANSFERRED THEIR AFFLIATION TO A NEW LOCAL OR
INTERNATIONAL; (FN4) (3) THE SIZE OF THE BARGAINING UNIT FLUCTUATED
RADICALLY WITHIN A SHORT TIME.  (FN5) 

(C)  LOSS OF MAJORITY SUPPORT AFTER THE "REASONABLE" PERIOD COULD BE
QUESTIONED IN TWO WAYS:  (1) EMPLOYER'S REFUSAL TO BARGAIN, OR (2)
PETITION BY A RIVAL UNION FOR A NEW ELECTION.  (FN6) 

(D)  IF THE INITIAL ELECTION RESULTED IN A MAJORITY FOR "NO UNION,"
THE ELECTION - UNLIKE A CERTIFICATION - DID NOT BAR A SECOND ELECTION
WITHIN A YEAR. 

THE BOARD UNIFORMLY FOUND AN UNFAIR LABOR PRACTICE WHERE, DURING THE
SO-CALLED "CERTIFICATION YEAR," AN EMPLOYER REFUSED TO BARGAIN ON THE
GROUND THAT THE CERTIFIED UNION NO LONGER POSSESSED A MAJORITY.  WHILE
THE COURTS IN THE MAIN ENFORCED THE BOARD'S DECISIONS, (FN7) THEY DID
NOT COMMIT THEMSELVES TO ONE YEAR AS THE DETERMINATE CONTENT OF
REASONABLENESS.  THE BOARD AND THE COURTS PROCEEDED ALONG THIS LINE OF
REASONING: 

(A)  IN THE POLITICAL AND BUSINESS SPHERES, THE CHOICE OF THE VOTERS
IN AN ELECTION BINDS THEM FOR A FIXED TIME.  THIS PROMOTES A SENSE OF
RESPONSIBILITY IN THE ELECTORATE AND NEEDED COHERENCE IN
ADMINISTRATION.  THESE CONSIDERATIONS ARE EQUALLY RELEVANT TO HEALTHY
LABOR RELATIONS. 

(B)  SINCE AN ELECTION IS A SOLEMN AND COSTLY OCCASION, CONDUCTED
UNDER SAFEGUARDS TO VOLUNTARY CHOICE, REVOCATION OF AUTHORITY SHOULD
OCCUR BY A PROCEDURE NO LESS SOLEMN THAN THAT OF THE INITIAL
DESIGNATION.  A PETITION OR A PUBLIC MEETING - IN WHICH THOSE VOTING
FOR AND AGAINST UNIONISM ARE DISCLOSED TO MANAGEMENT, AND IN WHICH THE
INFLUENCES OF MASS PSYCHOLOGY ARE PRESENT - IS NOT COMPARABLE TO THE
PRIVACY AND INDEPENDENCE OF THE VOTING BOOTH. 

(C)  A UNION SHOULD BE GIVEN AMPLE TIME FOR CARRYING OUT ITS MANDATE
ON BEHALF OF ITS MEMBERS, AND SHOULD NOT BE UNDER EXIGENT PRESSURE TO
PRODUCE HOTHOUSE RESULTS OR BE TURNED OUT. 

(D)  IT IS SCARCELY CONDUCIVE TO BARGAINING IN GOOD FAITH FOR AN
EMPLOYER TO KNOW THAT, IF HE DILLYDALLIES OR SUBTLY UNDERMINES, UNION
STRENGTH MAY ERODE AND THEREBY RELIEVE HIM OF HIS STATUTORY DUTIES AT
ANY TIME, WHILE IF HE WORKS CONSCIENTIOUSLY TOWARD AGREEMENT, THE RANK
AND FILE MAY, AT THE LAST MOMENT, REPUDIATE THEIR AGENT. 

(E)  IN SITUATIONS, NOT WHOLLY RARE, WHERE UNIONS ARE COMPETING,
RAIDING AND STRIFE WILL BE MINIMIZED IF ELECTIONS ARE NOT AT THE HAZARD
OF INFORMAL AND SHORT-TERM RECALL. 

CERTAIN ASPECTS OF THE LABOR BOARD'S REPRESENTATION PROCEDURES CAME
UNDER SCRUTINY IN THE CONGRESS THAT ENACTED THE TAFT-HARTLEY ACT IN
1947, 61 STAT. 136.  CONGRESS WAS MINDFUL THAT, ONCE EMPLOYEES HAD
CHOSEN A UNION, THEY COULD NOT VOTE TO REVOKE ITS AUTHORITY AND REFRAIN
FROM UNION ACTIVITIES, WHILE IF THEY VOTED AGAINST HAVING A UNION IN
THE FIRST PLACE, THE UNION COULD BEGIN AT ONCE TO AGITATE FOR A NEW
ELECTION.  (FN8)  THE NATIONAL LABOR RELATIONS ACT WAS AMENDED TO
PROVIDE THAT (A) EMPLOYEES COULD PETITION THE BOARD FOR A
DECERTIFICATION ELECTION, AT WHICH THEY WOULD HAVE AN OPPORTUNITY TO
CHOOSE NO LONGER TO BE REPRESENTED BY A UNION, 61 STAT. 144, 29 U.S.C.
SEC. 159(C)(1)(A)(II); (B) AN EMPLOYER, IF IN DOUBT AS TO THE MAJORITY
CLAIMED BY A UNION WITHOUT FORMAL ELECTION OR BESET BY THE CONFLICTING
CLAIMS OF RIVAL UNIONS, COULD LIKEWISE PETITION THE BOARD FOR AN
ELECTION, 61 STAT. 144, 29 U.S.C. SEC. 159(C)(1)(B); (C) AFTER A VALID
CERTIFICATION OR DECERTIFICATION ELECTION HAD BEEN CONDUCTED, THE BOARD
COULD NOT HOLD A SECOND ELECTION IN THE SAME BARGAINING UNIT UNTIL A
YEAR HAD ELAPSED, 61 STAT. 144, 29 U.S.C. SEC. 159(C)(3); (D) BOARD
CERTIFICATION COULD ONLY BE GRANTED AS THE RESULT OF AN ELECTION, 61
STAT. 144, 29 U.S.C.  SEC. 159(C)(1), THOUGH AN EMPLOYER WOULD
PRESUMABLY STILL BE UNDER A DUTY TO BARGAIN WITH AN UNCERTIFIED UNION
THAT HAD A CLEAR MAJORITY, SEE LABOR BOARD V. KOBRITZ, 193 F.2D 8 (C.A.
1ST CIR.). 

THE BOARD CONTINUED TO APPLY ITS "ONE-YEAR CERTIFICATION" RULE AFTER
THE TAFT-HARTLEY ACT CAME INTO FORCE, (FN9) EXCEPT THAT EVEN "UNUSUAL
CIRCUMSTANCES" NO LONGER LEFT THE BOARD FREE TO ORDER AN ELECTION WHERE
ONE HAD TAKEN PLACE WITHIN THE PRECEDING 12 MONTHS.  (FN10)
CONFLICTING VIEWS BECAME MANIFEST IN THE COURTS OF APPEALS WHEN THE
BOARD SOUGHT TO ENFORCE ORDERS BASED ON REFUSAL TO BARGAIN IN VIOLATION
OF ITS RULE.  SOME CIRCUITS SANCTIONED THE BOARD'S POSITION.  (FN11)
THE COURT OF APPEALS FOR THE SIXTH CIRCUIT DENIED ENFORCEMENT.  (FN12)
THE COURT OF APPEALS FOR THE THIRD CIRCUIT HELD THAT A "REASONABLE"
PERIOD DEPENDED ON THE FACTS OF THE PARTICULAR CASE.  (FN13) 

THE ISSUE IS OPEN HERE.  NO CASE TOUCHING THE PROBLEM HAS DIRECTLY
PRESENTED IT.  IN FRANKS BROS. CO. V. LABOR BOARD, 321 U.S. 702, WE
HELD THAT WHERE A UNION'S MAJORITY WAS DISSIPATED AFTER AN EMPLOYER'S
UNFAIR LABOR PRACTICE IN REFUSING TO BARGAIN, THE BOARD COULD
APPROPRIATELY FIND THAT SUCH CONDUCT HAD UNDERMINED THE PRESTIGE OF THE
UNION AND REQUIRE THE EMPLOYER TO BARGAIN WITH IT FOR A REASONABLE
PERIOD DESPITE THE LOSS OF MAJORITY.  AND IN LABOR BOARD V. MEXIA
TEXTILE MILLS, INC., 339 U.S. 563, WE HELD THAT A CLAIM OF AN
INTERVENING LOSS OF MAJORITY WAS NO DEFENSE TO A PROCEEDING FOR
ENFORCEMENT OF AN ORDER TO CEASE AND DESIST FROM CERTAIN UNFAIR LABOR
PRACTICES. 

PETITIONER CONTENDS THAT WHENEVER AN EMPLOYER IS PRESENTED WITH
EVIDENCE THAT HIS EMPLOYEES HAVE DESERTED THEIR CERTIFIED UNION, HE MAY
FORTHWITH REFUSE TO BARGAIN.  IN EFFECT, HE SEEKS TO VINDICATE THE
RIGHTS OF HIS EMPLOYEES TO SELECT THEIR BARGAINING REPRESENTATIVE.  IF
THE EMPLOYEES ARE DISSATISFIED WITH THEIR CHOSEN UNION, THEY MAY SUBMIT
THEIR OWN GRIEVANCE TO THE BOARD.  (FN14) IF AN EMPLOYER HAS DOUBTS
ABOUT HIS DUTY TO CONTINUE BARGAINING, IT IS HIS RESPONSIBILITY TO
PETITION THE BOARD FOR RELIEF, WHILE CONTINUING TO BARGAIN IN GOOD
FAITH AT LEAST UNTIL THE BOARD HAS GIVEN SOME INDICATION THAT HIS CLAIM
HAS MERIT.  (FN15)  ALTHOUGH THE BOARD MAY, IF THE FACTS WARRANT,
REVOKE A CERTIFICATION OR AGREE NOT TO PURSUE A CHARGE OF AN UNFAIR
LABOR PRACTICE, THESE ARE MATTERS FOR THE BOARD; THEY DO NOT JUSTIFY
EMPLOYER SELF-HELP OR JUDICIAL INTERVENTION.  THE UNDERLYING PURPOSE OF
THIS STATUTE IS INDUSTRIAL PEACE.  TO ALLOW EMPLOYERS TO RELY ON
EMPLOYEES' RIGHTS IN REFUSING TO BARGAIN WITH THE FORMALLY DESIGNATED
UNION IS NOT CONDUCIVE TO THAT END, IT IS INIMICAL TO IT.  CONGRESS HAS
DEVISED A FORMAL MODE FOR SELECTION AND REJECTION OF BARGAINING AGENTS
AND HAS FIXED THE SPACING OF ELECTIONS, WITH A VIEW OF FURTHERING
INDUSTRIAL STABILITY AND WITH DUE REGARD TO ADMINISTRATIVE PRUDENCE. 

WE FIND WANTING THE ARGUMENTS AGAINST THESE CONTROLLING
CONSIDERATIONS.  IN PLACING A NONCONSENTING MINORITY UNDER THE
BARGAINING RESPONSIBILITY OF AN AGENCY SELECTED BY A MAJORITY OF THE
WORKERS, CONGRESS HAS DISCARDED COMMON-LAW DOCTRINES OF AGENCY.  IT IS
CONTENDED THAT SINCE A BARGAINING AGENCY MAY BE ASCERTAINED BY METHODS
LESS FORMAL THAN A SUPERVISED ELECTION, INFORMAL REPUDIATION SHOULD
ALSO BE SANCTIONED WHERE DECERTIFICATION BY ANOTHER ELECTION IS
PRECLUDED.  THIS IS TO MAKE SITUATIONS THAT ARE DIFFERENT APPEAR THE
SAME.  FINALLY, IT IS NOT WITHIN THE POWER OF THIS COURT TO REQUIRE THE
BOARD, AS IS SUGGESTED, TO RELIEVE A SMALL EMPLOYER, LIKE THE ONE
INVOLVED IN THIS CASE, OF THE DUTY THAT MAY BE EXACTED FROM AN
ENTERPRISE WITH MANY EMPLOYEES.  (FN16) 

TO BE SURE, WHAT WE HAVE SAID HAS SPECIAL PERTINENCE ONLY TO THE
PERIOD DURING WHICH A SECOND ELECTION IS IMPOSSIBLE.  BUT THE BOARD'S
VIEW THAT THE ONE-YEAR PERIOD SHOULD RUN FROM THE DATE OF CERTIFICATION
RATHER THAN THE DATE OF ELECTION SEEMS WITHIN THE ALLOWABLE AREA OF THE
BOARD'S DISCRETION IN CARRYING OUT CONGRESSIONAL POLICY.  SEE PHELPS
DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 192-197; LABOR BOARD V. SEVEN
UP BOTTLING CO., 344 U.S. 344.  OTHERWISE, ENCOURAGEMENT WOULD BE GIVEN
TO MANAGEMENT OR A RIVAL UNION TO DELAY CERTIFICATION BY SPURIOUS
OBJECTIONS TO THE CONDUCT OF AN ELECTION AND THEREBY DIMINISH THE
DURATION OF THE DUTY TO BARGAIN.  FURTHERMORE, THE BOARD HAS RULED THAT
ONE YEAR AFTER CERTIFICATION THE EMPLOYER CAN ASK FOR AN ELECTION
(FN17) OR, IF HE HAS FAIR DOUBTS ABOUT THE UNION'S CONTINUING MAJORITY,
HE MAY REFUSE TO BARGAIN FURTHER WITH IT.  (FN18)  THIS, TOO, IS A
MATTER APPROPRIATELY DETERMINED BY THE BOARD'S ADMINISTRATIVE
AUTHORITY. 

WE CONCLUDE THAT THE JUDGMENT OF THE COURT OF APPEALS ENFORCING THE
BOARD'S ORDER MUST BE AFFIRMED. 

FN1  E.G., KIMBERLY-CLARK CORP., 61 N.L.R.B. 90.  BUT SEE TRACKSON
CO., 56 N.L.R.B. 917. 

FN2  THE CASES IN WHICH THE BOARD FOUND THE "UNUSUAL CIRCUMSTANCES"
WERE ALL REPRESENTATION CASES IN WHICH A RIVAL UNION SOUGHT A NEW
ELECTION LESS THAN A YEAR AFTER CERTIFICATION. 

FN3  PUBLIC SERVICE ELECTRIC & GAS CO., 59 N.L.R.B. 325; CF.
NASHVILLE BRIDGE CO., 49 N.L.R.B. 629. 

FN4  BRIGHTWATER PAPER CO., 54 N.L.R.B. 1102; CARSON PIRIE SCOTT &
CO., 69 N.L.R.B. 935; CF. GREAT LAKES CARBON CORP., 44 N.L.R.B. 70. 

FN5  SEE WESTINGHOUSE ELECTRIC & MFG. CO., 38 N.L.R.B. 404, 409. 

FN6  IN TABARDREY MFG. CO., 51 N.L.R.B. 246, THE BOARD REFUSED TO
CONDUCT AN ELECTION WHERE THERE WAS NO RIVAL UNION AND THE EMPLOYEES
WERE DISSATISFIED WITH THEIR CERTIFIED AGENT. 

FN7  E.G., LABOR BOARD V. CENTURY OXFORD MFG. CORP., 140 F.2D 541
(C.A.2D CIR.)(SIX WEEKS); LABOR BOARD V. BOTANY WORSTED MILLS, 133 F.2D
876 (C.A. 3D CIR.)(REPUDIATION ONE WEEK AFTER ELECTION, REFUSAL TO
BARGAIN THREE MONTHS AFTER CERTIFICATION).  CONTRA:  LABOR BOARD V.
INTER-CITY ADVERTISING CO., 154 F.2D 244 (C.A. 4TH CIR.). 

FN8  COMMITTEE REPORTS AND CONTROLLING FLOOR STATEMENTS SHOW AN
AWARENESS OF THE BOARD'S PRIOR PRACTICE BUT AFFORD NO GUIDANCE FOR
SOLUTION OF OUR PROBLEM.  THE SENATE REPORT DECLARED:  "IN ORDER TO
IMPRESS UPON EMPLOYEES THE SOLEMNITY OF THEIR CHOICE, WHEN THE
GOVERNMENT GOES TO THE EXPENSE OF CONDUCTING A SECRET BALLOT, THE BILL
ALSO PROVIDES THAT ELECTIONS IN ANY GIVEN UNIT MAY NOT BE HELD MORE
FREQUENTLY THAN ONCE A YEAR."  S. REP.  NO. 105, 80TH CONG., 1ST SESS.
12.  AND FURTHER, "AT PRESENT, IF THE UNION LOSES, IT MAY ON
PRESENTATION OF ADDITIONAL MEMBERSHIP CARDS SECURE ANOTHER ELECTION
WITHIN A SHORT TIME, BUT IF IT WINS ITS MAJORITY CANNOT BE CHALLENGED
FOR A YEAR."  ID., AT 25. 

AND SENATOR TAFT, THE AUTHORITATIVE EXPOUNDER OF HIS MEASURE, DOES
NOT GIVE US MUCH MORE HELP: "THE BILL ALSO PROVIDES THAT ELECTIONS
SHALL BE HELD ONLY ONCE A YEAR, SO THAT THERE SHALL NOT BE A CONSTANT
STIRRING UP OF EXCITEMENT BY CONTINUAL ELECTIONS.  THE MEN CHOOSE A
BARGAINING AGENT FOR 1 YEAR.  HE REMAINS THE BARGAINING AGENT UNTIL THE
END OF THAT YEAR."  93 CONG. REC. 3838.    THE HOUSE DECIDED TO REVERSE
THE PRACTICE UNDER THE WAGNER ACT BY INSERTING A PROVISION WHICH WOULD
HAVE LIMITED REPRESENTATION ELECTIONS TO 12-MONTH INTERVALS BUT
PERMITTED DECERTIFICATION ELECTIONS AT ANY TIME.  IT DID SO AS AN
EXPRESSION OF THE PREVAILING CONGRESSIONAL MOOD TO ASSURE TO WORKERS
FREEDOM FROM UNION AFFILIATION AS WELL AS THE RIGHT TO JOIN ONE.  THIS
PROVISION WAS REJECTED IN CONFERENCE. 

FN9  E.G., GLOBE AUTOMATIC SPRINKLER CO., 95 N.L.R.B. 253; SEE
CELANESE CORP. OF AMERICA, 95 N.L.R.B. 664, 672-674.  BOTH BEFORE AND
AFTER THE TAFT-HARTLEY ACT, THE BOARD AND THE COURTS DID NOT APPLY THE
RULE TO A COLLECTIVE BARGAINING RELATIONSHIP ESTABLISHED OTHER THAN AS
THE RESULT OF A CERTIFICATION ELECTION.  E.G., JOE HEARIN, 66 N.L.R.B.
1276 (CARD-CHECK); LABOR BOARD V. MAYER, 196 F.2D 286 (C.A. 5TH
CIR.)(CARD-CHECK); SQUIRREL BRAND CO., 104 N.L.R.B. 289 (ORDER TO
BARGAIN). 

FN10  FOR EXAMPLE, IN SWIFT & CO., 94 N.L.R.B. 917, THE BOARD, WHILE
APPLYING THE EXCEPTION TO A SCHISM THAT OCCURRED WITHIN 7 MONTHS OF
CERTIFICATION, DID NOT IN FACT DIRECT AN ELECTION UNTIL 17 MONTHS HAD
PASSED.  SEE ALSO FEDDERS-QUIGAN CORP., 88 N.L.R.B.  512. 

FN11  E.G., LABOR BOARD V. BROOKS, 204 F.2D 899 (C.A. 9TH CIR.); CF.
LABOR BOARD V. SANSON HOSIERY MILLS, INC. 195 F.2D 350 (C.A. 5TH CIR.);
SEE LABOR BOARD V. GERALDINE NOVELTY CO., 173 F.2D 14, 16-17 (C.A.2D
CIR.). 

FN12  LABOR BOARD V. VULCAN FORGING CO., 188 F.2D 927 (FIVE WEEKS);
MID-CONTINENT PETROLEUM CORP. V. LABOR BOARD, 204 F.2D 613 (TWO
MONTHS). 

FN13  LABOR BOARD V. GLOBE AUTOMATIC SPRINKLER CO., 199 F.2D 64
(REFUSAL TO BARGAIN AFTER 49 WEEKS NOT AN UNFAIR LABOR PRACTICE). 

FN14  SEE HUGHES TOOL CO., 104 N.L.R.B. 318; CF. LABOR BOARD V.
CLAROSTAT MFG. CO., 216 F.2D 525 (C.A. 1ST CIR.). 

FN15  SEE HENRY HEIDE, INC., 107 N.L.R.B., NO. 258 (CLAIM OF LOSS OF
MAJORITY BUT NO ACTUAL EVIDENCE); CF. BORDEN CO., 108 N.L.R.B., NO.
116; TELEGRAPH PUBLISHING CO., 102 N.L.R.B. 1173. 

FN16  IN WILSON-OLDSMOBILE, 110 N.L.R.B., NO. 74, THE BOARD HAS
APPLIED NEW JURISDICTIONAL YARDSTICKS WHICH WOULD PLACE THIS CASE, IF
NOW BROUGHT, OUTSIDE THEM. 

FN17  SEE WHITNEY'S, 81 N.L.R.B. 75; CF. NY-LINT TOOL & MFG., CO., 77
N.L.R.B. 642. 

FN18  CELANESE CORP. OF AMERICA, 95 N.L.R.B. 664.  THE BOARD HAS ON
SEVERAL OCCASIONS INTIMATED THAT EVEN AFTER THE CERTIFICATION YEAR HAS
PASSED, THE BETTER PRACTICE IS FOR AN EMPLOYER WITH DOUBTS TO KEEP
BARGAINING AND PETITION THE BOARD FOR A NEW ELECTION OR OTHER RELIEF. 
ID., AT 674; UNITED STATES GYPSUM CO., 90 N.L.R.B. 964, 966-968; SEE
ALSO J.P.  O'NEIL LUMBER CO., 94 N.L.R.B. 1299. 
..END :






MASSEY V. MOORE 348 U.S. 105 


NO. 119.  ARGUED NOVEMBER 8, 1954 - DECIDED DECEMBER 6, 1954 - 205 F.2D
665, REVERSED. 


IN A HABEAS CORPUS PROCEEDING IN A FEDERAL COURT, PETITIONER SOUGHT
RELEASE FROM LIFE IMPRISONMENT FOR A NONCAPITAL OFFENSE OF WHICH HE HAD
BEEN CONVICTED IN A STATE COURT.  HE ALLEGED THAT HE WAS TRIED AND
CONVICTED WITHOUT COUNSEL WHILE HE WAS INSANE AND UNABLE TO DEFEND
HIMSELF.  THE STATE COURTS HAD DENIED HIM RELIEF BECAUSE UNDER STATE
LAW THE QUESTION WHETHER HE WAS INSANE AND THUS UNABLE TO DEFEND
HIMSELF COULD BE RAISED ONLY AT THE TRIAL OR ON APPEAL, NOT
COLLATERALLY.  THE QUESTION WHETHER, AT THE TIME OF THE TRIAL, HE WAS
MENTALLY COMPETENT TO DEFEND HIMSELF WITHOUT COUNSEL HAS NEVER BEEN
DETERMINED.  HELD:  PETITIONER IS ENTITLED TO A HEARING ON THIS
QUESTION, SINCE IT WOULD BE A DENIAL OF THE DUE PROCESS REQUIRED BY THE
FOURTEENTH AMENDMENT TO REQUIRE AN INSANE MAN TO STAND TRIAL IN A STATE
COURT WITHOUT COUNSEL.  PP. 106-109. 

(A)  ONE MIGHT NOT BE INSANE IN THE SENSE OF BEING INCAPABLE OF
STANDING TRIAL AND YET LACK THE CAPACITY TO STAND TRIAL WITHOUT BENEFIT
OF COUNSEL.  P. 108. 

(B)  AN INSANE MAN TRIED WITHOUT COUNSEL CANNOT BE HELD TO THE
REQUIREMENT OF TENDERING THE ISSUE OF HIS INSANITY AT THE TRIAL.  PP.
108-109. 

(C)  FAILURE OF AN INSANE MAN WITHOUT COUNSEL TO RAISE THE QUESTION
OF HIS INSANITY ON APPEAL DOES NOT WAIVE HIS CONSTITUTIONAL RIGHT.  P.
109. 

MASSEY V. MOORE, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, WHO IS IN A TEXAS PRISON UNDER A LIFE SENTENCE IMPOSED BY
A TEXAS COURT, BROUGHT THIS PETITION FOR WRIT OF HABEAS CORPUS IN THE
FEDERAL DISTRICT COURT.  HIS CLAIM IS THAT HE WAS DENIED THE DUE
PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT BECAUSE HE WAS
TRIED AND CONVICTED OF ROBBERY AT A TIME WHEN HE WAS OF UNSOUND MIND
AND UNASSISTED BY COUNSEL.  THE DISTRICT COURT DENIED THE PETITION
WITHOUT A HEARING.  THE COURT OF APPEALS AFFIRMED BY A DIVIDED VOTE. 
205 F.2D 665.  THE CASE IS HERE ON CERTIORARI.  347 U.S. 1011. 

PETITIONER'S TRIAL ON THE ROBBERY CHARGE STARTED AND ENDED THE SAME
DAY.  HE HAD BEEN CONFINED TO THE PSYCHOPATHIC HOSPITAL OF THE STATE
PRISON FOR SEVERAL MONTHS PRIOR TO THE TRIAL; AND FOR THE MOST PART OF
THAT TIME HE WAS KEPT IN A CELL BLOCK RESERVED FOR THE MOST VIOLENT
INMATES.  HE WAS REMOVED FROM A STRAIT JACKET MARCH 7, 1941, AND TRIED
MARCH 11, 1941.  HE STOOD TRIAL WITHOUT BENEFIT OF COUNSEL, THOUGH THE
CRIME WITH WHICH HE WAS CHARGED CARRIED A MANDATORY LIFE SENTENCE
BECAUSE PETITIONER HAD SUFFERED TWO PRIOR FELONY CONVICTIONS.  SEE TEX.
PEN.  CODE, ART. 63. 

PETITIONER DECLINED TO PLEAD GUILTY; HENCE A PLEA OF NOT GUILTY WAS
ENTERED.  SO FAR AS WE ARE ADVISED, PETITIONER TOOK NO PART IN THE
PROCEEDINGS AND MADE NO ATTEMPT TO CONDUCT ANY DEFENSE.  PETITIONER WAS
CONVICTED AND IMMEDIATELY SENTENCED.  SHORTLY THEREAFTER, HE TRIED TO
COMMIT SUICIDE; AND THEN HE WAS RECOMMITTED TO THE PSYCHOPATHIC WARD
WHERE HE WAS CONFINED FOR SEVERAL MONTHS MORE.  WHILE HE WAS SO
CONFINED, THE TIME FOR APPEAL FROM HIS JUDGMENT OF CONVICTION EXPIRED. 

SINCE HIS CONVICTION, PETITIONER HAS TRIED REPEATEDLY TO OBTAIN
RELIEF BY WAY OF HABEAS CORPUS BOTH IN THE STATE AND FEDERAL COURTS. 
HE REPEATEDLY CLAIMED THAT HE WAS TRIED AND CONVICTED WITHOUT COUNSEL
WHILE HE WAS INSANE AND UNABLE TO DEFEND HIMSELF.  UNTIL 1952, HE
FAILED,* BECAUSE THE RECORD OF HIS TRIAL ERRONEOUSLY STATED THAT HE WAS
REPRESENTED BY COUNSEL.  THE ERROR IN THAT RECORD WAS CORRECTED BY
AFFIDAVITS OF BOTH THE TRIAL JUDGE AND THE PROSECUTING ATTORNEY. 
THEREUPON PETITIONER RENEWED HIS EFFORTS TO GET A HEARING ON HIS
CLAIM.  FINALLY THE TEXAS COURTS DENIED HIM RELIEF BECAUSE UNDER TEXAS
LAW THE QUESTION WHETHER HE WAS INSANE AND THUS UNABLE TO DEFEND COULD
BE RAISED ONLY ON APPEAL, NOT COLLATERALLY.  EX PARTE MASSEY, 157 TEX.
CR. R. 491, 249 S.W.2D 599.  PETITIONER, HAVING EXHAUSTED HIS STATE
REMEDIES, SOUGHT THE PRESENT RELIEF IN THE DISTRICT COURT, WHICH RULED
AGAINST HIM.  THE COURT OF APPEALS AFFIRMED ON THE GROUNDS (1) THAT
PETITIONER NOW TENDERS AN ISSUE WHICH COULD AND SHOULD HAVE BEEN RAISED
DURING THE TRIAL; (2) THAT THE QUESTION OF PETITIONER'S INSANITY WAS
DETERMINED AGAINST HIM IN 1948 BY THE DISTRICT COURT; AND (3) THAT THE
ALLEGATIONS OF INSANITY AND LACK OF COUNSEL DO NOT PRESENT A
SUBSTANTIAL FEDERAL QUESTION. 

*FOR THE CHAPTERS, WHICH ARE REPORTED, IN PETITIONER'S UNSUCCESSFUL
ATTEMPTS TO OBTAIN A HEARING ON THE QUESTION, SEE IN RE MASSEY, 327
U.S. 770; EX PARTE MASSEY, 149 TEX. CR.  R. 172, 191 S.W.2D 877; MASSEY
V. MOORE, 173 F.2D 980. 

WE DISAGREE WITH THE COURT OF APPEALS AND CONCLUDE THAT PETITIONER IS
ENTITLED TO A HEARING ON THE QUESTION WHETHER HE WAS INSANE AT THE TIME
OF THE TRIAL.  HE HAS NOT HAD SUCH A HEARING.  IN 1948, THE DISTRICT
COURT, ACTING ON THE ERRONEOUS ASSUMPTION THAT PETITIONER HAD COUNSEL,
HELD THAT HE WAS COMPETENT TO STAND TRIAL. 

IN THE PRESENT CASE THE DISTRICT COURT MERELY RULED, "ON THIS
QUESTION OF WHETHER, SINCE HE WAS NOT REPRESENTED BY COUNSEL AT HIS
TRIAL, HE IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION, ETC. OF THE
UNITED STATES, I HAVE EXAMINED AGAIN ALL THE PROCEEDINGS IN THIS COURT
AND IN THE STATE COURTS AND HAVE REACHED THE CONCLUSION THAT HIS
CONTENTION THAT HIS TRIAL WAS NOT IN ACCORDANCE WITH THE CONSTITUTION
IS WITHOUT MERIT."  THAT MAY MEAN THAT THE EVIDENCE TO SUPPORT THE
FINDING THAT PETITIONER WAS COMPETENT TO STAND TRIAL WITH A LAWYER WAS
ALSO SUFFICIENT TO SUSTAIN THE CONCLUSION THAT HE WAS COMPETENT TO
STAND TRIAL WITHOUT A LAWYER.  IT MAY MEAN THAT IN THE VIEW OF THE
DISTRICT COURT THE TWO ISSUES ARE THE SAME.  THE PRESENT RECORD LEAVES
US IN DOUBT.  ONE MIGHT NOT BE INSANE IN THE SENSE OF BEING INCAPABLE
OF STANDING TRIAL AND YET LACK THE CAPACITY TO STAND TRIAL WITHOUT
BENEFIT OF COUNSEL.  THE DIFFERENCE IN THOSE ISSUES AND THE IMPORTANCE
OF THAT DIFFERENCE TO THE PETITIONER MAKE MANIFEST THAT GRAVE INJUSTICE
MIGHT BE DONE, IF THE FINDING IN THE EARLIER PROCEEDINGS WERE ALLOWED
TO DO SERVICE HERE.  ON THIS RECORD THE QUESTION OF PETITIONER'S
ABILITY TO REPRESENT HIMSELF WITHOUT COUNSEL REMAINS UNDETERMINED. 

ON THE PRESENT PLEADINGS WE MUST TAKE AS TRUE THE ALLEGATION OF
MENTAL INCAPACITY AT THE TIME OF THE TRIAL.  SEE SMITH V. O'GRADY, 312
U.S. 329; WHITE V. RAGEN, 324 U.S. 760, 763.  YET IF HE WERE THEN
INSANE AS CLAIMED, HE WAS EFFECTIVELY FORECLOSED FROM DEFENDING
HIMSELF.  WE CANNOT HOLD AN INSANE MAN TRIED WITHOUT COUNSEL TO THE
REQUIREMENT OF TENDERING THE ISSUE OF HIS INSANITY AT THE TRIAL.  IF HE
IS INSANE, HIS NEED OF A LAWYER TO TENDER THE DEFENSE IS TOO PLAIN FOR
ARGUMENT.  WE HAVE NOT ALLOWED CONVICTIONS TO STAND IF THE ACCUSED
STOOD TRIAL WITHOUT BENEFIT OF COUNSEL AND YET WAS SO UNSKILLED, SO
IGNORANT, OR SO MENTALLY DEFICIENT AS NOT TO BE ABLE TO COMPREHEND THE
LEGAL ISSUES INVOLVED IN HIS DEFENSE.  SEE WILLIAMS V. KAISER, 323 U.S.
471; WADE V. MAYO, 334 U.S. 672; PALMER V. ASHE, 342 U.S. 134.  THE
REQUIREMENT OF THE FOURTEENTH AMENDMENT IS FOR A FAIR TRIAL.  SEE BETTS
V. BRADY, 316 U.S. 455, 462.  NO TRIAL CAN BE FAIR THAT LEAVES THE
DEFENSE TO A MAN WHO IS INSANE, UNAIDED BY COUNSEL, AND WHO BY REASON
OF HIS MENTAL CONDITION STANDS HELPLESS AND ALONE BEFORE THE COURT. 
EVEN THE SANE LAYMAN MAY HAVE DIFFICULTY DISCOVERING IN A PARTICULAR
CASE THE DEFENSES WHICH THE LAW ALLOWS.  SEE GIBBS V. BURKE, 337 U.S.
773.  YET PROBLEMS DIFFICULT FOR HIM ARE IMPOSSIBLE FOR THE INSANE. 
ANY DEFENSE IS HOPELESSLY BEYOND REACH FOR AN ACCUSED WHO IS INSANE. 
HE STANDS CONVICTED ON A CHARGE WHICH HE COULD NOT CONTEST AND YET FOR
WHICH HE MAY WELL HAVE HAD A COMPLETE DEFENSE. 

FOR THE SAME REASONS, THE FAILURE OF AN INSANE MAN TO RAISE THE
QUESTION OF HIS INSANITY ON APPEAL EMPHASIZES ONLY HIS NEED FOR
COUNSEL, NOT HIS WAIVER OR LOSS OF HIS CONSTITUTIONAL RIGHT.  CF. SMITH
V. O'GRADY, SUPRA. 

WE DO NOT INTIMATE AN OPINION ON THE MERITS, FOR WE DO NOT KNOW WHAT
FACTS THE HEARING WILL PRODUCE.  WE ONLY RULE THAT IF THE ALLEGATIONS
CHARGED ARE PROVEN, PETITIONER HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT
DUE PROCESS OF LAW.  REVERSED. 
..END :














UNITED STATES V. BROWN 348 U.S. 110 


NO. 38.  ARGUED NOVEMBER 15, 1954 - DECIDED DECEMBER 6, 1954 - 209 F.2D
463, AFFIRMED. 


A DISCHARGED VETERAN MAY MAINTAIN AN ACTION AGAINST THE UNITED STATES
UNDER THE TORT CLAIMS ACT FOR AN INJURY SUFFERED, AFTER HIS DISCHARGE,
IN A VETERANS ADMINISTRATION HOSPITAL AS A RESULT OF NEGLIGENT
TREATMENT OF A SERVICE-CONNECTED DISABILITY, ALTHOUGH HIS COMPENSATION
UNDER THE VETERANS ACT HAS ALREADY BEEN INCREASED BECAUSE OF SUCH
INJURY.  BROOKS V. UNITED STATES, 337 U.S. 49, FOLLOWED; FERES V.
UNITED STATES, 340 U.S. 135, DISTINGUISHED.  PP. 110-113. 

UNITED STATES V. BROWN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SEC.
1346(B), BROUGHT BY RESPONDENT, A DISCHARGED VETERAN, FOR DAMAGES FOR
NEGLIGENCE IN THE TREATMENT OF HIS LEFT KNEE IN A VETERANS
ADMINISTRATION HOSPITAL.  THE INJURY TO THE KNEE OCCURRED WHILE
RESPONDENT WAS ON ACTIVE DUTY IN THE ARMED SERVICES.  THE INJURY LED TO
HIS HONORABLE DISCHARGE IN 1944.  IN 1950, THE VETERANS ADMINISTRATION
PERFORMED AN OPERATION ON THE KNEE; BUT THE KNEE CONTINUED TO DISLOCATE
FREQUENTLY.  SO ANOTHER OPERATION WAS PERFORMED BY THE VETERANS
ADMINISTRATION IN 1951.  IT WAS DURING THE LATTER OPERATION THAT AN
ALLEGEDLY DEFECTIVE TOURNIQUET WAS USED, AS A RESULT OF WHICH THE
NERVES IN RESPONDENT'S LEG WERE SERIOUSLY AND PERMANENTLY INJURED. 

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, 48 STAT. 526, 38
U.S.C. SEC. 501A, ALLOWS COMPENSATION BOTH WHERE THE VETERAN SUFFERS
INJURY DURING HOSPITALIZATION AND WHERE AN EXISTING INJURY IS
AGGRAVATED DURING THE TREATMENT.  EACH IS CONSIDERED AS THOUGH IT WERE
"SERVICE CONNECTED."  RESPONDENT RECEIVED A COMPENSATION AWARD FOR HIS
KNEE INJURY WHEN HE WAS HONORABLY DISCHARGED; AND THAT AWARD WAS
INCREASED AFTER THE 1951 OPERATION. 

THE DISTRICT COURT AGREED WITH THE CONTENTION OF PETITIONER THAT
RESPONDENT'S SOLE RELIEF WAS UNDER THE VETERANS ACT AND DISMISSED HIS
COMPLAINT UNDER THE TORT CLAIMS ACT.  THE COURT OF APPEALS REVERSED. 
209 F.2D 463.  THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE
GRANTED, 347 U.S. 951, BECAUSE OF DOUBTS AS TO WHETHER BROOKS V. UNITED
STATES, 337 U.S. 49, OR FERES V. UNITED STATES, 340 U.S. 135,
CONTROLLED THIS CASE. 

THE BROOKS CASE HELD THAT SERVICEMEN WERE COVERED BY THE TORT CLAIMS
ACT WHERE THE INJURY WAS NOT INCIDENT TO OR CAUSED BY THEIR MILITARY
SERVICE.  337 U.S. 49, 52.  IN THAT CASE, SERVICEMEN ON LEAVE WERE
NEGLIGENTLY INJURED ON A PUBLIC HIGHWAY BY A GOVERNMENT EMPLOYEE
DRIVING A TRUCK OF THE UNITED STATES.  THE FACT THAT COMPENSATION WAS
SOUGHT AND PAID UNDER THE VETERANS ACT* WAS HELD NOT TO BAR RECOVERY
UNDER THE TORT CLAIMS ACT.  WE REFUSED TO "PRONOUNCE A DOCTRINE OF
ELECTION OF REMEDIES, WHEN CONGRESS HAS NOT DONE SO."  ID., AT 53. 

*WE INDICATED THAT RECOVERY UNDER THE TORT CLAIMS ACT SHOULD BE
REDUCED BY THE AMOUNTS PAID BY THE UNITED STATES AS DISABILITY PAYMENTS
UNDER THE VETERANS ACT.  337 U.S. 52, 53-54.  SEE THE CASE ON REMAND,
UNITED STATES V. BROOKS, 176 F.2D 482, 484. 

THE FERES DECISION INVOLVED THREE CASES, IN EACH OF WHICH THE INJURY,
FOR WHICH COMPENSATION WAS SOUGHT UNDER THE TORT CLAIMS ACT, OCCURRED
WHILE THE SERVICEMAN WAS ON ACTIVE DUTY AND NOT ON FURLOUGH; AND THE
NEGLIGENCE ALLEGED IN EACH CASE WAS ON THE PART OF OTHER MEMBERS OF THE
ARMED FORCES.  THE FERES DECISION DID NOT DISAPPROVE OF THE BROOKS
CASE.  IT MERELY DISTINGUISHED IT, HOLDING THAT THE TORT CLAIMS ACT
DOES NOT COVER "INJURIES TO SERVICEMEN WHERE THE INJURIES ARISE OUT OF
OR ARE IN THE COURSE OF ACTIVITY INCIDENT TO SERVICE."  340 U.S. 135,
146.  THE PECULIAR AND SPECIAL RELATIONSHIP OF THE SOLDIER TO HIS
SUPERIORS, THE EFFECTS OF THE MAINTENANCE OF SUCH SUITS ON DISCIPLINE,
AND THE EXTREME RESULTS THAT MIGHT OBTAIN IF SUITS UNDER THE TORT
CLAIMS ACT WERE ALLOWED FOR NEGLIGENT ORDERS GIVEN OR NEGLIGENT ACTS
COMMITTED IN THE COURSE OF MILITARY DUTY, LED THE COURT TO READ THAT
ACT AS EXCLUDING CLAIMS OF THAT CHARACTER.  ID., AT 141-143. 

THE PRESENT CASE IS, IN OUR VIEW, GOVERNED BY BROOKS, NOT BY FERES. 
THE INJURY FOR WHICH SUIT WAS BROUGHT WAS NOT INCURRED WHILE RESPONDENT
WAS ON ACTIVE DUTY OR SUBJECT TO MILITARY DISCIPLINE.  THE INJURY
OCCURRED AFTER HIS DISCHARGE, WHILE HE ENJOYED A CIVILIAN STATUS.  THE
DAMAGES RESULTED FROM A DEFECTIVE TOURNIQUET APPLIED IN A VETERANS'
HOSPITAL.  RESPONDENT WAS THERE, OF COURSE, BECAUSE HE HAD BEEN IN THE
SERVICE AND BECAUSE HE HAD RECEIVED AN INJURY IN THE SERVICE.  AND THE
CAUSAL RELATION OF THE INJURY TO THE SERVICE WAS SUFFICIENT TO BRING
THE CLAIM UNDER THE VETERANS ACT.  BUT, UNLIKE THE CLAIMS IN THE FERES
CASE, THIS ONE IS NOT FOREIGN TO THE BROAD PATTERN OF LIABILITY WHICH
THE UNITED STATES UNDERTOOK BY THE TORT CLAIMS ACT. 

THAT ACT PROVIDES THAT, "THE UNITED STATES SHALL BE LIABLE  ...  IN
THE SAME MANNER AND TO THE SAME EXTENT AS A PRIVATE INDIVIDUAL UNDER
LIKE CIRCUMSTANCES  ...  ."  28 U.S.C.  SEC. 2674.  THE FERES CASE
EMPHASIZED HOW SHARP WOULD BE THE BREAK IN TRADITION IF THE CLAIMS
THERE ASSERTED WERE ALLOWED AGAINST THE UNITED STATES, THE COURT NOTING
THAT THE EFFECT OF THE TORT CLAIMS ACT IS "TO WAIVE IMMUNITY FROM
RECOGNIZED CAUSES OF ACTION," "NOT TO VISIT THE GOVERNMENT WITH NOVEL
AND UNPRECEDENTED LIABILITIES."  340 U.S. 135, 142.  BUT THAT CANNOT BE
SAID HERE.  CERTAINLY THIS CLAIM IS ONE WHICH MIGHT BE COGNIZABLE UNDER
LOCAL LAW, IF THE DEFENDANT WERE A PRIVATE PARTY.  RESPONSIBILITY OF
HOSPITALS TO PATIENTS FOR NEGLIGENCE MAY NOT BE AS NOTORIOUS AS THE
LIABILITY OF THE OWNERS OF AUTOMOBILES.  BUT THE DOCTRINE IS NOT NOVEL
OR WITHOUT SUPPORT.  SEE, FOR EXAMPLE, SHEEHAN V. NORTH COUNTRY
COMMUNITY HOSP., 273 N.Y. 163, 7 N.E.2D 28, AND THE CASES COLLECTED IN
25 A.L.R.2D 29. 

CONGRESS COULD, OF COURSE, MAKE THE COMPENSATION SYSTEM THE EXCLUSIVE
REMEDY.  THE COURT HELD IN JOHANSEN V. UNITED STATES, 343 U.S. 427,
THAT CONGRESS HAD DONE SO IN THE CASE OF THE FEDERAL EMPLOYEES
COMPENSATION ACT, WITH THE RESULT THAT A CIVILIAN EMPLOYEE COULD NOT
SUE THE UNITED STATES UNDER THE PUBLIC VESSELS ACT.  WE NOTED IN THE
BROOKS CASE, 337 U.S. 49, 53, THAT THE USUAL WORKMEN'S COMPENSATION
STATUTE WAS IN THIS RESPECT DIFFERENT FROM THOSE GOVERNING VETERANS,
THAT CONGRESS HAD GIVEN NO INDICATION THAT IT MADE THE RIGHT TO
COMPENSATION THE VETERAN'S EXCLUSIVE REMEDY, THAT THE RECEIPT OF
DISABILITY PAYMENTS UNDER THE VETERANS ACT WAS NOT AN ELECTION OF
REMEDIES AND DID NOT PRECLUDE RECOVERY UNDER THE TORT CLAIMS ACT BUT
ONLY REDUCED THE AMOUNT OF ANY JUDGMENT UNDER THE LATTER ACT.  WE
ADHERE TO THAT RESULT.  WE ADHERE ALSO TO THE LINE DRAWN IN THE FERES
CASE BETWEEN INJURIES THAT DID AND INJURIES THAT DID NOT ARISE OUT OF
OR IN THE COURSE OF MILITARY DUTY.  SINCE THE NEGLIGENT ACT GIVING RISE
TO THE INJURY IN THE PRESENT CASE WAS NOT INCIDENT TO THE MILITARY
SERVICE, THE BROOKS CASE GOVERNS AND THE JUDGMENT MUST BE AFFIRMED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

IN BROOKS V. UNITED STATES, 337 U.S. 49, WE HELD THAT ACTIONS FOR
DAMAGES COULD BE BROUGHT AGAINST THE GOVERNMENT FOR INJURIES TO ONE
SOLDIER AND THE DEATH OF ANOTHER DUE TO NEGLIGENT OPERATION OF AN ARMY
TRUCK.  BUT WE POINTED OUT THAT THE ACCIDENT THERE HAD NOTHING TO DO
WITH THE "ARMY CAREERS" OF THE SOLDIERS AND WAS NEITHER CAUSED BY NOR
INCIDENT TO THEIR MILITARY SERVICE.  WHEN INJURED THE TWO SOLDIERS WERE
OFF DUTY AND WERE RIDING ALONG A STATE HIGHWAY IN THEIR OWN CAR ON
THEIR OWN BUSINESS WHICH BORE NO RELATIONSHIP OF ANY KIND TO ANY PAST,
PRESENT OR FUTURE CONNECTION WITH THE ARMY.  THUS, THE TWO SOLDIERS
WOULD HAVE BEEN INJURED HAD THEY NEVER WORN A UNIFORM AT ALL.  IN THIS
CASE, HOWEVER, THE INJURY IS INSEPARABLY RELATED TO MILITARY SERVICE
AND THE BROOKS CASE SHOULD NOT BE HELD CONTROLLING.  BUT FOR HIS ARMY
SERVICE THIS VETERAN COULD NOT HAVE BEEN INJURED IN THE VETERANS
HOSPITAL AS HE WAS ELIGIBLE AND ADMITTED FOR TREATMENT THERE SOLELY
BECAUSE OF WAR SERVICE WHICH GAVE HIS VETERAN STATUS.  MOREOVER, HE WAS
ACTUALLY BEING TREATED FOR AN ARMY SERVICE INJURY. 

FOR A HOSPITAL INJURY A VETERAN IS ENTITLED TO PRECISELY THE SAME
DISABILITY BENEFITS AS IF THE INJURY HAD BEEN INFLICTED WHILE HE WAS A
SOLDIER.*  WE HAVE PREVIOUSLY HELD, I THINK CORRECTLY, THAT A SOLDIER
INJURED IN A HOSPITAL CANNOT ALSO SUE FOR DAMAGES UNDER THE TORT CLAIMS
ACT.  FERES V. UNITED STATES, 340 U.S. 135.  BUT THE COURT NOW HOLDS
THAT A VETERAN CAN.  TO PERMIT A VETERAN TO RECOVER DAMAGES FROM THE
GOVERNMENT IN CIRCUMSTANCES UNDER WHICH A SOLDIER ON ACTIVE DUTY CANNOT
RECOVER SEEMS LIKE AN UNJUSTIFIABLE DISCRIMINATION WHICH THE ACT DOES
NOT REQUIRE. 

*"WHERE ANY VETERAN SUFFERS  ...  AN INJURY, OR AN AGGRAVATION OF ANY
EXISTING INJURY, AS THE RESULT OF HOSPITALIZATION OR MEDICAL OR
SURGICAL TREATMENT  ...  BENEFITS  ...  SHALL BE AWARDED IN THE SAME
MANNER AS IF SUCH DISABILITY, AGGRAVATION, OR DEATH WERE SERVICE
CONNECTED  ...  ."  48 STAT. 526, 38 U.S.C. SEC. 501A. 
..END :



MOORE V. MEAD'S FINE BREAD CO. 348 U.S. 115 


NO. 121.  ARGUED NOVEMBER 17, 1954 - DECIDED DECEMBER 6, 1954 - 208 F.2D
777, REVERSED AND JUDGMENT OF DISTRICT COURT AFFIRMED. 


PETITIONER SUED RESPONDENT FOR TREBLE DAMAGES FOR VIOLATIONS OF SEC. 2
OF THE CLAYTON ACT AND SEC. 3 OF THE ROBINSON-PATMAN ACT.  PETITIONER
WAS ENGAGED IN A PURELY INTRASTATE BAKERY BUSINESS.  RESPONDENT SOLD
BREAD BOTH LOCALLY AND INTERSTATE, AND, IN THE COURSE OF SUCH BUSINESS,
MAINTAINED PRICES IN INTERSTATE TRANSACTIONS BUT CUT PRICES IN
INTRASTATE TRANSACTIONS IN PETITIONER'S LOCALITY, THUS DRIVING
PETITIONER OUT OF BUSINESS.  THERE WAS AMPLE EVIDENCE TO SUPPORT A
FINDING OF A PURPOSE TO ELIMINATE A COMPETITOR.  HELD:  SUCH PRACTICES
ARE INCLUDED IN THE SCOPE OF SEC. 2 OF THE CLAYTON ACT AND SEC. 3 OF
THE ROBINSON-PATMAN ACT, AND A JUDGMENT FOR PETITIONER IS SUSTAINED. 
PP. 115-120. 

(A)  CONGRESS HAS POWER UNDER THE COMMERCE CLAUSE TO PREVENT THE
OPPORTUNITIES AFFORDED BY INTERSTATE COMMERCE FROM BEING EMPLOYED TO
INJURE LOCAL TRADE.  PP. 119-120. 

(B)  BY THE CLAYTON ACT AND THE ROBINSON-PATMAN ACT, CONGRESS BARRED
THE USE OF INTERSTATE BUSINESS TO DESTROY LOCAL BUSINESS AND OUTLAWED
THE PRICE CUTTING EMPLOYED BY RESPONDENT.  P. 120. 

MOORE V. MEAD'S FINE BREAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR TREBLE DAMAGES, 38 STAT. 731, 15 U.S.C. SEC. 15,
BROUGHT FOR VIOLATIONS OF SEC. 2(A) OF THE CLAYTON ACT, AS AMENDED BY
THE ROBINSON-PATMAN ACT, 49 STAT. 1526, 15 U.S.C. SEC. 13(A), AND OF
SEC. 3 OF THE ROBINSON-PATMAN ACT, 15 U.S.C. SEC. 13A.  THE JURY FOUND
FOR PETITIONER; THE COURT OF APPEALS REVERSED, 208 F.2D 777; AND WE
GRANTED CERTIORARI, 347 U.S. 1012, BECAUSE OF THE IMPORTANCE OF THE
QUESTION OF LAW PRESENTED.  (FN1) 

PETITIONER WAS ENGAGED IN THE BAKERY BUSINESS AT SANTA ROSA, NEW
MEXICO, NONE OF HIS ACTIVITIES BEING INTERSTATE IN CHARACTER. 
RESPONDENT IS A CORPORATION IN THE BAKING BUSINESS AT CLOVIS, NEW
MEXICO.  IT IS ONE OF SEVERAL CORPORATIONS HAVING INTERLOCKING
OWNERSHIP AND MANAGEMENT, ALL IN THE MEAD FAMILY AND ASSOCIATES.  THESE
CORPORATIONS MAINTAIN PLANTS AT LUBBOCK AND BIG SPRING, TEXAS, AND AT
HOBBS, ROSWELL, AND CLOVIS, NEW MEXICO.  THEY ALL MARKET THEIR BREAD
UNDER THE NAME "MEAD'S FINE BREAD" AND PROMOTE THE PRODUCT THROUGH A
COMMON ADVERTISING PROGRAM.  THESE CORPORATIONS PURCHASE THEIR FLOUR
AND BREAD WRAPPERS AS A UNIT.  RESPONDENT SELLS BREAD IN FARWELL,
TEXAS, A TOWN WHICH IT SERVES WITH A BREAD TRUCK OPERATING OUT OF
CLOVIS, NEW MEXICO. 

FOR SOME MONTHS, PETITIONER AND RESPONDENT WERE IN COMPETITION IN
SANTA ROSA.  THERE IS EVIDENCE THAT, ON THE THREAT OF PETITIONER TO
MOVE HIS BAKERY TO ANOTHER TOWN, THE LOCAL SANTA ROSA MERCHANTS AGREED
TO PURCHASE PETITIONER'S PRODUCTS EXCLUSIVELY.  RESPONDENT, LABELING
THAT ACTION A BOYCOTT, CUT THE WHOLESALE PRICE OF BREAD IN SANTA ROSA
FROM 14 CENTS TO 7 CENTS FOR A POUND LOAF AND FROM 21 CENTS TO 11 CENTS
FOR A POUND-AND-A-HALF LOAF.  THE MEAD COMPANIES DID NOT CUT THE PRICES
OF BREAD IN ANY OTHER TOWN; AND RESPONDENT DID NOT CUT ITS PRICES OF
BREAD IN FARWELL, TEXAS. 

THE PRICE WAR CONTINUED FROM SEPTEMBER 1948 TO APRIL 1949, AND AS A
RESULT PETITIONER WAS FORCED TO CLOSE HIS BUSINESS. 

THE COURT OF APPEALS REVERSED THE JUDGMENT FOR PETITIONER ON THE
GROUND THAT THE INJURY RESULTING FROM THE PRICE CUTTING WAS TO A PURELY
LOCAL COMPETITOR WHOSE BUSINESS WAS IN NO WAY RELATED TO INTERSTATE
COMMERCE.  "IF COMPETITION WAS LESSENED OR A MONOPOLY CREATED," SAID
THE COURT OF APPEALS, "IT WAS PURELY LOCAL IN ITS SCOPE AND EFFECT AND
IN NO WAY RELATED TO OR AFFECTED INTERSTATE COMMERCE."  208 F.2D 777,
780. 

PROVIDES IN PART: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE
IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND
QUALITY, WHERE EITHER OR ANY OF THE PURCHASES INVOLVED IN SUCH
DISCRIMINATION ARE IN COMMERCE, WHERE SUCH COMMODITIES ARE SOLD FOR
USE, CONSUMPTION, OR RESALE WITHIN THE UNITED STATES ...  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  ...  ." 

PART: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN THE
COURSE OF SUCH COMMERCE,  ...  TO SELL  ...  GOODS IN ANY PART OF THE
UNITED STATES AT PRICES LOWER THAN THOSE EXACTED BY SAID PERSON
ELSEWHERE IN THE UNITED STATES FOR THE PURPOSE OF DESTROYING
COMPETITION, OR ELIMINATING A COMPETITOR IN SUCH PART OF THE UNITED
STATES; OR, TO SELL  ...  GOODS AT UNREASONABLY LOW PRICES FOR THE
PURPOSE OF DESTROYING COMPETITION OR ELIMINATING A COMPETITOR." 

THOSE SECTIONS ON THEIR FACE SEEM TO COVER THE INSTANT CASE. 
RESPONDENT IS ENGAGED IN COMMERCE, SELLING BREAD BOTH LOCALLY AND
INTERSTATE.  IN THE COURSE OF SUCH BUSINESS, IT MADE PRICE
DISCRIMINATIONS, MAINTAINING THE PRICE IN THE INTERSTATE TRANSACTIONS
AND CUTTING THE PRICE IN THE INTRASTATE SALES.  THE DESTRUCTION OF A
COMPETITOR WAS PLAINLY ESTABLISHED, AS REQUIRED BY THE AMENDED SEC.
2(A) OF THE CLAYTON ACT; AND THE EVIDENCE TO SUPPORT A FINDING OF
PURPOSE TO ELIMINATE A COMPETITOR, AS REQUIRED BY SEC. 3 OF THE
ROBINSON-PATMAN ACT, WAS AMPLE.  (FN2) 

THE COURT OF APPEALS READ THE ANTITRUST LAWS AS REACHING LOCAL
TRANSACTIONS ONLY WHERE: (1) THE LOCAL RESTRAINT HAS AN EFFECT ON THE
FREE FLOW OF INTERSTATE TRADE OR COMMERCE (E.G., WICKARD V. FILBURN,
317 U.S. 111); OR (2) THE RESTRAINT ON OR THE MONOPOLY OF LOCAL TRADE
IS EFFECTED THROUGH THE UTILIZATION OF INTERSTATE MECHANISMS (E.G.,
LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S. 143); OR (3) LOCAL PRICES
ARE FIXED BY THE USE OF INTERSTATE COMMERCIAL TRANSACTIONS (E.G.,
UNITED STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293); OR (4) THE
DISCRIMINATORY SALES ARE TO PURCHASERS WHO COMPETE IN INTERSTATE
COMMERCE (E.G., CORN PRODUCTS REFINING CO. V. FEDERAL TRADE COMMISSION,
324 U.S. 726); OR (5) INTERSTATE COMMERCE IS IN SOME OTHER WAY USED TO
DESTROY COMPETITION OR IS INJURED OR IMPAIRED AS A RESULT OF UNLAWFUL
ACTS. 

WE THINK THAT THE PRACTICES IN THE PRESENT CASE ARE ALSO INCLUDED
WITHIN THE SCOPE OF THE ANTITRUST LAWS.  WE HAVE HERE AN INTERSTATE
INDUSTRY INCREASING ITS DOMAIN THROUGH OUTLAWED COMPETITIVE PRACTICES. 
THE VICTIM, TO BE SURE, IS ONLY A LOCAL MERCHANT; AND NO INTERSTATE
TRANSACTIONS ARE USED TO DESTROY HIM.  BUT THE BENEFICIARY IS AN
INTERSTATE BUSINESS; THE TREASURY USED TO FINANCE THE WARFARE IS DRAWN
FROM INTERSTATE, AS WELL AS LOCAL, SOURCES WHICH INCLUDE NOT ONLY
RESPONDENT BUT ALSO A GROUP OF INTERLOCKED COMPANIES ENGAGED IN THE
SAME LINE OF BUSINESS; AND THE PRICES ON THE INTERSTATE SALES, BOTH BY
RESPONDENT AND BY THE OTHER MEAD COMPANIES, ARE KEPT HIGH WHILE THE
LOCAL PRICES ARE LOWERED.  IF THIS METHOD OF COMPETITION WERE APPROVED,
THE PATTERN FOR GROWTH OF MONOPOLY WOULD BE SIMPLE.  AS LONG AS THE
PRICE WARFARE WAS STRICTLY INTRASTATE, INTERSTATE BUSINESS COULD GROW
AND EXPAND WITH IMPUNITY AT THE EXPENSE OF LOCAL MERCHANTS.  THE
COMPETITIVE ADVANTAGE WOULD THEN BE WITH THE INTERSTATE COMBINES, NOT
BE REASON OF THEIR SKILLS OR EFFICIENCY BUT BECAUSE OF THEIR STRENGTH
AND ABILITY TO WAGE PRICE WARS.  THE PROFITS MADE IN INTERSTATE
ACTIVITIES WOULD UNDERWRITE THE LOSSES OF LOCAL PRICE-CUTTING
CAMPAIGNS.  NO INSTRUMENTALITY OF INTERSTATE COMMERCE WOULD BE USED TO
DESTROY THE LOCAL MERCHANT AND EXPAND THE DOMAIN OF THE COMBINE.  BUT
THE OPPORTUNITIES AFFORDED BY INTERSTATE COMMERCE WOULD BE EMPLOYED TO
INJURE LOCAL TRADE.  CONGRESS, AS GUARDIAN OF THE COMMERCE CLAUSE,
CERTAINLY HAS POWER TO SAY THAT THOSE ADVANTAGES SHALL NOT ATTACH TO
THE PRIVILEGE OF DOING AN INTERSTATE BUSINESS. 

THIS TYPE OF PRICE CUTTING WAS HELD TO BE "FOREIGN TO ANY LEGITIMATE
COMMERCIAL COMPETITION" EVEN PRIOR TO THE ROBINSON-PATMAN ACT.  SEE
PORTO RICAN AMERICAN TOBACCO CO. V. AMERICAN TOBACCO CO., 30 F.2D 234,
237.  IT SEEMS PLAIN TO US THAT CONGRESS WENT AT LEAST THAT FAR IN THE
ROBINSON-PATMAN ACT.  AS WE HAVE SHOWN, THE FACTS CHARGED AND FOUND
READ UPON THE WORDS OF THE STATUTE.  AND THE HISTORY OF THE ACT SHOWS
IT WAS DESIGNED TO HAVE THE REACH NOW CLAIMED FOR IT BY PETITIONER. 
CONGRESSMAN UTTERBACK, MANAGER OF THE BILL IN THE HOUSE, INCLUDED THIS
TYPE OF CASE IN THE PRICE CUTTING THAT HE CLAIMED WAS OUTLAWED: 

"WHERE, HOWEVER, A MANUFACTURER SELLS TO CUSTOMERS BOTH WITHIN THE
STATE AND BEYOND THE STATE, HE MAY NOT FAVOR EITHER TO THE DISADVANTAGE
OF THE OTHER; HE MAY NOT USE THE PRIVILEGE OF INTERSTATE COMMERCE TO
THE INJURY OF HIS LOCAL TRADE, NOR MAY HE FAVOR HIS LOCAL TRADE TO THE
INJURY OF HIS INTERSTATE TRADE.  THE FEDERAL POWER TO REGULATE
INTERSTATE COMMERCE IS THE POWER BOTH TO LIMIT ITS EMPLOYMENT TO THE
INJURY OF BUSINESS WITHIN THE STATE, AND TO PROTECT INTERSTATE COMMERCE
ITSELF FROM INJURY BY INFLUENCES WITHIN THE STATE."  80 CONG.  REC.
9417. 

IT IS, WE THINK, CLEAR THAT CONGRESS BY THE CLAYTON ACT AND ROBINSON
PATMAN ACT BARRED THE USE OF INTERSTATE BUSINESS TO DESTROY LOCAL
BUSINESS, OUTLAWING THE PRICE CUTTING EMPLOYED BY RESPONDENT. 

OTHER POINTS ARE PRESSED ON US BY RESPONDENT IN SUPPORT OF THE
JUDGMENT OF THE COURT OF APPEALS.  BUT WE HAVE EXAMINED THEM AND FOUND
THEM NOT SUBSTANTIAL.  WE THEREFORE REVERSE THE JUDGMENT OF THE COURT
OF APPEALS AND AFFIRM THE JUDGMENT OF THE DISTRICT COURT.  SO ORDERED. 

FN1  THE CASE FIRST REACHED THE COURT OF APPEALS ON APPEAL FROM A
DISMISSAL OF THE ACTION AT THE CLOSE OF PLAINTIFF'S CASE.  THE COURT OF
APPEALS AFFIRMED, HOLDING THAT THE SUIT WAS PRECLUDED BY PETITIONER'S
OWN ILLEGAL ACTS WHICH INITIATED THE ALLEGED PRICE DISCRIMINATION.  184
F.2D 338.  WE GRANTED A PETITION FOR CERTIORARI, VACATED THAT JUDGMENT,
AND REMANDED THE CASE TO THE COURT OF APPEALS FOR FURTHER CONSIDERATION
IN LIGHT OF KIEFER-STEWART CO. V. JOSEPH E. SEAGRAM & SONS, 340 U.S.
211.  SEE MOORE V. MEAD SERVICE CO., 340 U.S. 944.  ON RECONSIDERATION,
THE COURT OF APPEALS RECEDED FROM ITS FORMER POSITION, REVERSED THE
JUDGMENT DISMISSING THE COMPLAINT, AND REMANDED THE CASE FOR TRIAL. 
190 F.2D 540. 

FN2  RESPONDENT CONTENDS THAT THE SO-CALLED BOYCOTT JUSTIFIED ITS
PRICE CUTTING.  IN KIEFER-STEWART CO. V. SEAGRAM & SONS, 340 U.S. 211,
214, WE SAID, "IF PETITIONER AND OTHERS WERE GUILTY OF INFRACTIONS OF
THE ANTITRUST LAWS, THEY COULD BE HELD RESPONSIBLE IN APPROPRIATE
PROCEEDINGS BROUGHT AGAINST THEM BY THE GOVERNMENT OR BY INJURED
PRIVATE PERSONS.  THE ALLEGED ILLEGAL CONDUCT OF PETITIONER, HOWEVER,
COULD NOT LEGALIZE THE UNLAWFUL COMBINATION BY RESPONDENTS NOR IMMUNIZE
THEM AGAINST LIABILITY TO THOSE THEY INJURED."  WE NEED NOT PURSUE THE
MATTER, FOR RESPONDENT OBTAINED A CHARGE ON THIS PHASE OF THE CASE AS
TO WHICH IT CANNOT COMPLAIN.  THE DISTRICT COURT CHARGED THE JURY THAT
RESPONDENT WOULD NOT BE LIABLE IF THE PRICE CUTTING WAS "FOR THE
PURPOSE OF REGAINING ITS OWN MARKET OR OF RE-ESTABLISHING COMPETITION
AND NOT TO DESTROY COMPETITION OR TO ELIMINATE A COMPETITOR." 
..END :
























HOLLAND V. UNITED STATES 348 U.S. 121 


NO. 37.  ARGUED OCTOBER 20-21, 1954 - DECIDED DECEMBER 6, 1954 - 209
F.2D 516, AFFIRMED. 


WITH THE GOVERNMENT USING THE "NET WORTH" METHOD OF PROOF, PETITIONERS
WERE CONVICTED UNDER SEC. 145 OF THE INTERNAL REVENUE CODE OF A WILLFUL
ATTEMPT TO EVADE THEIR INCOME TAXES FOR THE YEAR 1948.   THE
GOVERNMENT'S COMPUTATION SHOWED AN INCREASE OF $32,000 IN THEIR NET
WORTH DURING 1948, FOR WHICH THEY REPORTED ONLY $10,211 AS TAXABLE
INCOME.  PETITIONERS CLAIMED THAT THE GOVERNMENT FAILED TO INCLUDE IN
ITS OPENING NET WORTH FIGURE $104,000 OF CURRENCY ACCUMULATED BEFORE
1933.  THE GOVERNMENT INTRODUCED NO DIRECT EVIDENCE TO DISPUTE THIS
CLAIM BUT RELIED ON THE INFERENCE THAT ANYONE WHO HAD $104,000 IN CASH
WOULD NOT HAVE UNDERGONE THE HARDSHIPS AND PRIVATIONS SHOWN TO HAVE
BEEN ENDURED BY PETITIONERS DURING THE 1926-1940 PERIOD.  THE EVIDENCE
FURTHER INDICATED THAT IMPROVEMENTS TO A HOTEL AND OTHER ASSETS
ACQUIRED DURING THE 1946-1948 PERIOD WERE BOUGHT IN INSTALLMENTS, AS IF
OUT OF EARNINGS RATHER THAN ACCUMULATED CASH; AND PETITIONERS' INCOME
TAX RETURNS AS FAR BACK AS 1913 SHOWED THAT THEIR INCOME WAS
INSUFFICIENT TO ENABLE THEM TO SAVE ANY APPRECIABLE AMOUNT OF MONEY. 
THERE WAS INDEPENDENT EVIDENCE OF A LIKELY SOURCE OF UNREPORTED TAXABLE
INCOME WHICH THE JURY COULD REASONABLY FIND TO BE THE SOURCE OF THE
INCREASE IN PETITIONERS' NET WORTH AND INDEPENDENT EVIDENCE FROM WHICH
THE JURY COULD REASONABLY INFER WILLFULNESS.  HELD: THE JUDGMENT IS
AFFIRMED.  PP. 124-141. 

1.  WHILE IT CANNOT BE SAID THAT THE DANGERS FOR THE INNOCENT
INHERENT IN THE NET WORTH METHOD OF PROOF (WHICH ARE SUMMARIZED IN THE
OPINION) FORECLOSE ITS USE, THEY DO REQUIRE THE EXERCISE OF GREAT CARE
AND RESTRAINT.  PP. 125-129. 

2.  TRIAL COURTS SHOULD APPROACH SUCH CASES IN THE FULL REALIZATION
THAT THE TAXPAYER MAY BE ENSNARED IN A SYSTEM WHICH, THOUGH DIFFICULT
FOR THE PROSECUTION TO UTILIZE, IS EQUALLY HARD FOR THE DEFENDANT TO
REFUTE.  P. 129. 

3.  CHARGES TO THE JURY SHOULD BE ESPECIALLY CLEAR AND SHOULD
INCLUDE, IN ADDITION TO THE FORMAL INSTRUCTIONS, A SUMMARY OF THE
NATURE OF THE NET WORTH METHOD, THE ASSUMPTIONS ON WHICH IT RESTS, AND
THE INFERENCES AVAILABLE BOTH FOR AND AGAINST THE ACCUSED.  P. 129 

4.  IN REVIEWING SUCH CASES, APPELLATE COURTS SHOULD BEAR CONSTANTLY
IN MIND THE DIFFICULTIES THAT ARISE WHEN CIRCUMSTANTIAL EVIDENCE AS TO
GUILT IS THE CHIEF WEAPON OF A METHOD THAT IS ITSELF ONLY AN
APPROXIMATION.  P. 129. 

5.  SECTION 41 OF THE INTERNAL REVENUE CODE, EXPRESSLY LIMITING THE
AUTHORITY OF THE GOVERNMENT TO DEVIATE FROM THE TAXPAYER'S METHOD OF
ACCOUNTING, DOES NOT CONFINE THE NET WORTH METHOD OF PROOF TO
SITUATIONS WHERE THE TAXPAYER HAS NO BOOKS OR WHERE HIS BOOKS ARE
INADEQUATE.  PP. 130-132. 

6.  THE NET WORTH TECHNIQUE USED IN THIS CASE WAS NOT A METHOD OF
ACCOUNTING DIFFERENT FROM THE ONE EMPLOYED BY PETITIONERS, AND ITS USE
DID NOT VIOLATE SEC. 41 OF THE INTERNAL REVENUE CODE.  PP. 131-132. 

7.  AN ESSENTIAL CONDITION IN SUCH CASES IS THE ESTABLISHMENT, WITH
REASONABLE CERTAINTY, OF AN OPENING NET WORTH, TO SERVE AS A STARTING
POINT FROM WHICH TO CALCULATE FUTURE INCREASES IN THE TAXPAYER'S
ASSETS.  P. 132. 

8.  IN THIS CASE, THE GOVERNMENT'S EVIDENCE FULLY JUSTIFIED THE
JURY'S CONCLUSION THAT PETITIONERS DID NOT HAVE THE $113,000 IN
CURRENCY AND STOCKS WHICH THEY CLAIMED TO HAVE HAD AT THE BEGINNING OF
1946.  PP. 132-135. 

9.  WHEN THE TAXPAYER OFFERS RELEVANT EXPLANATIONS INCONSISTENT WITH
GUILT, FAILURE OF THE GOVERNMENT TO INVESTIGATE THEM MIGHT RESULT IN
SERIOUS INJUSTICE; ITS FAILURE TO OFFER PROOF NEGATING THEM WOULD
ADVERSELY AFFECT THE COGENCY OF PROOF BASED ON THE CIRCUMSTANTIAL
INFERENCES OF THE NET WORTH COMPUTATION; AND THE TRIAL JUDGE MAY
CONSIDER THE TAXPAYER'S EXPLANATIONS AS TRUE AND THE GOVERNMENT'S CASE
INSUFFICIENT TO GO TO THE JURY.  PP. 135-136. 

10.  IN THIS CASE, THE DISTANT INCIDENTS RELIED ON BY PETITIONERS AND
NOT INVESTIGATED BY THE GOVERNMENT WERE SO REMOTE IN TIME AND IN THEIR
CONNECTION WITH SUBSEQUENT EVENTS PROVED BY THE GOVERNMENT THAT,
WHATEVER PETITIONER'S NET WORTH IN 1933, IT APPEARED BY CONVINCING
EVIDENCE THAT, ON JANUARY 1, 1946, THEY HAD ONLY SUCH ASSETS AS THE
GOVERNMENT CREDITED TO THEM IN ITS OPENING NET WORTH STATEMENT.  P.
136. 

11.  A REQUISITE TO THE USE OF THE NET WORTH METHOD OF PROOF IS
EVIDENCE SUPPORTING THE INFERENCE THAT THE INCREASES IN THE DEFENDANT'S
NET WORTH ARE ATTRIBUTABLE TO CURRENTLY TAXABLE INCOME.  P. 137. 

12.  WHERE THE TAXPAYER OFFERS NO RELEVANT EXPLANATION OF THE
INCREASES IN HIS NET WORTH, HOWEVER, THE GOVERNMENT IS NOT REQUIRED TO
NEGATE EVERY POSSIBLE SOURCE OF NONTAXABLE INCOME - A MATTER PECULIARLY
WITHIN THE KNOWLEDGE OF THE TAXPAYER.  P. 138. 

13.  IN THIS CASE, THERE WAS PROOF OF A LIKELY SOURCE OF UNREPORTED
TAXABLE INCOME, WHICH WAS ADEQUATE TO SUPPORT THE INFERENCE THAT THE
INCREASE IN NET WORTH WAS ATTRIBUTABLE TO CURRENTLY TAXABLE INCOME -
EVEN THOUGH THE GOVERNMENT'S PROOF DID NOT NEGATE ALL POSSIBLE
NONTAXABLE SOURCES OF THE ALLEGED NET WORTH INCREASE, SUCH AS GIFTS,
LOANS, INHERITANCES, ETC.  PP. 137-138. 

14.  THE SETTLED STANDARDS REGARDING THE BURDEN OF PROOF IN CRIMINAL
CASES ARE APPLICABLE TO NET WORTH CASES.  THE GOVERNMENT MUST PROVE
EVERY ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT, THOUGH NOT TO A
MATHEMATICAL CERTAINTY.  ONCE THE GOVERNMENT HAS ESTABLISHED ITS CASE,
THE DEFENDANT REMAINS QUIET AT HIS PERIL.  PP. 138-139. 

15.  IN NET WORTH CASES, WILLFULNESS IS A NECESSARY ELEMENT FOR
CONVICTION.  IT MUST BE PROVEN BY INDEPENDENT EVIDENCE AND IT CANNOT BE
INFERRED FROM A MERE UNDERSTATEMENT OF INCOME.  P. 139. 

16.  IN THIS CASE, THE GOVERNMENT'S EVIDENCE OF A CONSISTENT PATTERN
OF UNDERREPORTING LARGE AMOUNTS OF INCOME, AND OF PETITIONERS' FAILURE
TO INCLUDE ALL THEIR INCOME IN THEIR BOOKS AND RECORDS, WAS SUFFICIENT,
ON PROPER SUBMISSION, TO SUPPORT THE JURY'S INFERENCE OF WILLFULNESS. 
P. 139. 

17.  IN THIS CASE, THE INSTRUCTIONS TO THE JURY WERE NOT SO ERRONEOUS
AND MISLEADING AS TO CONSTITUTE GROUNDS FOR REVERSAL.  PP. 139-141. 

HOLLAND ET UX. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PETITIONERS WERE CONVICTED UNDER SEC. 145 OF THE INTERNAL REVENUE
CODE OF AN ATTEMPT TO EVADE THEIR INCOME TAXES.  THE COURT OF APPEALS
AFFIRMED.  209 F.2D 516.  THIS COURT GRANTED CERTIORARI.  347 U.S.
1008.  AFFIRMED, P. 141. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, HUSBAND AND WIFE, STAND CONVICTED UNDER SEC. 145 OF THE
INTERNAL REVENUE CODE (FN1) OF AN ATTEMPT TO EVADE AND DEFEAT THEIR
INCOME TAXES FOR THE YEAR 1948.  THE PROSECUTION WAS BASED ON THE NET
WORTH METHOD OF PROOF, ALSO IN ISSUE IN THREE COMPANION CASES (FN2) AND
A NUMBER OF OTHER DECISIONS HERE FROM THE COURTS OF APPEALS OF NINE
CIRCUITS.  DURING THE PAST TWO DECADES THIS COURT HAS BEEN ASKED TO
REVIEW AN INCREASING NUMBER OF CRIMINAL CASES IN WHICH PROOF OF TAX
EVASION RESTED ON THIS THEORY.  WE HAVE DENIED CERTIORARI BECAUSE THE
CASES INVOLVED ONLY QUESTIONS OF EVIDENCE AND, IN ISOLATION, PRESENTED
NO IMPORTANT QUESTIONS OF LAW.  IN 1943 THE COURT DID HAVE OCCASION TO
PASS UPON AN APPLICATION OF THE NET WORTH THEORY WHERE THE TAXPAYER HAD
NO RECORDS.  UNITED STATES V.  JOHNSON, 319 U.S. 503. 

IN RECENT YEARS, HOWEVER, TAX-EVASION CONVICTIONS OBTAINED UNDER THE
NET WORTH THEORY HAVE COME HERE WITH INCREASING FREQUENCY AND LEFT
IMPRESSIONS BEYOND THOSE OF THE PREVIOUSLY UNRELATED PETITIONS.  WE
CONCLUDED THAT THE METHOD INVOLVED SOMETHING MORE THAN THE ORDINARY USE
OF CIRCUMSTANTIAL EVIDENCE IN THE USUAL CRIMINAL CASE.  ITS BEARING,
THEREFORE, ON THE SAFEGUARDS TRADITIONALLY PROVIDED IN THE
ADMINISTRATION OF CRIMINAL JUSTICE CALLED FOR A CONSIDERATION OF THE
ENTIRE THEORY.  AT OUR LAST TERM A NUMBER OF CASES ARISING FROM THE
COURTS OF APPEALS BROUGHT TO OUR ATTENTION THE SERIOUS DOUBTS OF THOSE
COURTS REGARDING THE IMPLICATIONS OF THE NET WORTH METHOD. 
ACCORDINGLY, WE GRANTED CERTIORARI IN THESE FOUR CASES AND HAVE HELD
OTHERS TO AWAIT THEIR DECISION. 

IN A TYPICAL NET WORTH PROSECUTION, THE GOVERNMENT, HAVING CONCLUDED
THAT THE TAXPAYER'S RECORDS ARE INADEQUATE AS A BASIS FOR DETERMINING
INCOME TAX LIABILITY, ATTEMPTS TO ESTABLISH AN "OPENING NET WORTH" OR
TOTAL NET VALUE OF THE TAXPAYER'S ASSETS AT THE BEGINNING OF A GIVEN
YEAR.  IT THEN PROVES INCREASES IN THE TAXPAYER'S NET WORTH FOR EACH
SUCCEEDING YEAR DURING THE PERIOD UNDER EXAMINATION AND CALCULATES THE
DIFFERENCE BETWEEN THE ADJUSTED NET VALUES OF THE TAXPAYER'S ASSETS AT
THE BEGINNING AND END OF EACH OF THE YEARS INVOLVED.  THE TAXPAYER'S
NONDEDUCTIBLE EXPENDITURES, INCLUDING LIVING EXPENSES, ARE ADDED TO
THESE INCREASES, AND IF THE RESULTING FIGURE FOR ANY YEAR IS
SUBSTANTIALLY GREATER THAN THE TAXABLE INCOME REPORTED BY THE TAXPAYER
FOR THAT YEAR, THE GOVERNMENT CLAIMS THE EXCESS REPRESENTS UNREPORTED
TAXABLE INCOME.  IN ADDITION, IT ASKS THE JURY TO INFER WILLFULNESS
FROM THIS UNDERSTATEMENT, WHEN TAKEN IN CONNECTION WITH DIRECT EVIDENCE
OF "CONDUCT, THE LIKELY EFFECT OF WHICH WOULD BE TO MISLEAD OR TO
CONCEAL."  SPIES V. UNITED STATES, 317 U.S. 492, 499. 

BEFORE PROCEEDING WITH A DISCUSSION OF THESE CASES, WE BELIEVE IT
IMPORTANT TO OUTLINE THE GENERAL PROBLEMS IMPLICIT IN THIS TYPE OF
LITIGATION.  IN THIS CONSIDERATION WE ASSUME, AS WE MUST IN VIEW OF ITS
WIDESPREAD USE, THAT THE GOVERNMENT DEEMS THE NET WORTH METHOD USEFUL
IN THE ENFORCEMENT OF THE CRIMINAL SANCTIONS OF OUR INCOME TAX LAWS. 
NEVERTHELESS, CAREFUL STUDY INDICATES THAT IT IS SO FRAUGHT WITH DANGER
FOR THE INNOCENT THAT THE COURTS MUST CLOSELY SCRUTINIZE ITS USE. 

ONE BASIC ASSUMPTION IN ESTABLISHING GUILT BY THIS METHOD IS THAT
MOST ASSETS DERIVE FROM A TAXABLE SOURCE, AND THAT WHEN THIS IS NOT
TRUE THE TAXPAYER IS IN A POSITION TO EXPLAIN THE DISCREPANCY.  THE
APPLICATION OF SUCH AN ASSUMPTION RAISES SERIOUS LEGAL PROBLEMS IN THE
ADMINISTRATION OF THE CRIMINAL LAW.  UNLIKE CIVIL ACTIONS FOR THE
RECOVERY OF DEFICIENCIES, WHERE THE DETERMINATIONS OF THE COMMISSIONER
HAVE PRIMA FACIE VALIDITY, THE PROSECUTION MUST ALWAYS PROVE THE
CRIMINAL CHARGE BEYOND A REASONABLE DOUBT.  THIS HAS LED MANY OF OUR
COURTS TO BE DISTURBED BY THE USE OF THE NET WORTH METHOD, PARTICULARLY
IN ITS SCOPE AND THE LATITUDE WHICH IT ALLOWS PROSECUTORS.  E.G.,
DEMETREE V. UNITED STATES, 207 F.2D 892, 894 (1953); UNITED STATES V.
CASERTA, 199 F.2D 905, 907 (1952); UNITED STATES V. FENWICK, 177 F.2D
488. 

BUT THE NET WORTH METHOD HAS NOT GROWN UP OVERNIGHT.  IT WAS FIRST
UTILIZED IN SUCH CASES AS CAPONE V. UNITED STATES, 51 F.2D 609 (1931)
AND GUZIK V. UNITED STATES, 54 F.2D 618 (1931), TO CORROBORATE DIRECT
PROOF OF SPECIFIC UNREPORTED INCOME.  IN UNITED STATES V. JOHNSON,
SUPRA, THIS COURT APPROVED OF ITS USE TO SUPPORT THE INFERENCE THAT THE
TAXPAYER, OWNER OF A VAST AND ELABORATELY CONCEALED NETWORK OF GAMBLING
HOUSES UPON WHICH HE DECLARED NO INCOME, HAD INDEED RECEIVED UNREPORTED
INCOME IN A "SUBSTANTIAL AMOUNT."  IT WAS A POTENT WEAPON IN
ESTABLISHING TAXABLE INCOME FROM UNDISCLOSED SOURCES WHEN ALL OTHER
EFFORTS FAILED.  SINCE THE JOHNSON CASE, HOWEVER, ITS HORIZONS HAVE
BEEN WIDENED UNTIL NOW IT IS USED IN RUN-OF-THE-MINE CASES, REGARDLESS
OF THE AMOUNT OF TAX DEFICIENCY INVOLVED.  IN EACH OF THE FOUR CASES
DECIDED TODAY THE ALLEGEDLY UNREPORTED INCOME COMES FROM THE SAME
DISCLOSED SOURCES AS PRODUCED THE TAXPAYER'S REPORTED INCOME AND IN
NONE IS THE TAX DEFICIENCY ANYTHING LIKE THE DEFICIENCIES IN JOHNSON,
CAPONE OR GUZIK.  THE NET WORTH METHOD, IT SEEMS, HAS EVOLVED FROM THE
FINAL VOLLEY TO THE FIRST SHOT IN THE GOVERNMENT'S BATTLE FOR REVENUE,
AND ITS USE IN THE ORDINARY INCOME-BRACKET CASES GREATLY INCREASES THE
CHANCES FOR ERROR.  THIS LEADS US TO POINT OUT THE DANGERS THAT MUST BE
CONSCIOUSLY KEPT IN MIND IN ORDER TO ASSURE ADEQUATE APPRAISAL OF THE
SPECIFIC FACTS IN INDIVIDUAL CASES. 

1.  AMONG THE DEFENSES OFTEN ASSERTED IS THE TAXPAYER'S CLAIM THAT
THE NET WORTH INCREASE SHOWN BY THE GOVERNMENT'S STATEMENT IS IN
REALITY NOT AN INCREASE AT ALL BECAUSE OF THE EXISTENCE OF SUBSTANTIAL
CASH ON HAND AT THE STARTING POINT.  THIS FAVORITE DEFENSE ASSERTS THAT
THE CACHE IS MADE UP OF MANY YEARS' SAVINGS WHICH FOR VARIOUS REASONS
WERE HIDDEN AND NOT EXPENDED UNTIL THE PROSECUTION PERIOD.  OBVIOUSLY,
THE GOVERNMENT HAS GREAT DIFFICULTY IN REFUTING SUCH A CONTENTION. 
HOWEVER, TAXPAYERS TOO ENCOUNTER MANY OBSTACLES IN CONVINCING THE JURY
OF THE EXISTENCE OF SUCH HOARDS.  THIS IS PARTICULARLY SO WHEN THE
EMERGENCE OF THE HIDDEN SAVINGS ALSO UNCOVERS A FRAUD ON THE TAXPAYER'S
CREDITORS. 

IN THIS CONNECTION, THE TAXPAYER FREQUENTLY GIVES "LEADS" TO THE
GOVERNMENT AGENTS INDICATING THE SPECIFIC SOURCES FROM WHICH HIS CASH
ON HAND HAS COME, SUCH AS PRIOR EARNINGS, STOCK TRANSACTIONS, REAL
ESTATE PROFITS, INHERITANCES, GIFTS, ETC.  SOMETIMES THESE "LEADS"
POINT BACK TO OLD TRANSACTIONS FAR REMOVED FROM THE PROSECUTION
PERIOD.  WERE THE GOVERNMENT REQUIRED TO RUN DOWN ALL SUCH LEADS IT
WOULD FACE GRAVE INVESTIGATIVE DIFFICULTIES; STILL ITS FAILURE TO DO SO
MIGHT JEOPARDIZE THE POSITION OF THE TAXPAYER. 

2.  AS WE HAVE SAID, THE METHOD REQUIRES ASSUMPTIONS, AMONG WHICH IS
THE EQUATION OF UNEXPLAINED INCREASES IN NET WORTH WITH UNREPORTED
TAXABLE INCOME.  OBVIOUSLY SUCH AN ASSUMPTION HAS MANY WEAKNESSES.  IT
MAY BE THAT GIFTS, INHERITANCES, LOANS AND THE LIKE ACCOUNT FOR THE
NEWLY ACQUIRED WEALTH.  THERE IS GREAT DANGER THAT THE JURY MAY ASSUME
THAT ONCE THE GOVERNMENT HAS ESTABLISHED THE FIGURES IN ITS NET WORTH
COMPUTATIONS, THE CRIME OF TAX EVASION AUTOMATICALLY FOLLOWS.  THE
POSSIBILITY OF THIS INCREASES WHERE THE JURY, WITHOUT GUARDING
INSTRUCTIONS, IS ALLOWED TO TAKE INTO THE JURY ROOM THE VARIOUS CHARTS
SUMMARIZING THE COMPUTATIONS; BARE FIGURES HAVE A WAY OF ACQUIRING AN
EXISTENCE OF THEIR OWN, INDEPENDENT OF THE EVIDENCE WHICH GAVE RISE TO
THEM. 

3.  ALTHOUGH IT MAY SOUND FAIR TO SAY THAT THE TAXPAYER CAN EXPLAIN
THE "BULGE" IN HIS NET WORTH, HE MAY BE ENTIRELY HONEST AND YET UNABLE
TO RECOUNT HIS FINANCIAL HISTORY.  IN ADDITION, SUCH A RULE WOULD TEND
TO SHIFT THE BURDEN OF PROOF.  WERE THE TAXPAYER COMPELLED TO COME
FORWARD WITH EVIDENCE, HE MIGHT RISK LENDING SUPPORT TO THE
GOVERNMENT'S CASE BY SHOWING LOOSE BUSINESS METHODS OR LOSING THE JURY
THROUGH HIS APPARENT EVASIVENESS.  OF COURSE, IN OTHER CRIMINAL
PROSECUTIONS JURIES MAY DISBELIEVE AND CONVICT THE INNOCENT.  BUT THE
COURTS MUST MINIMIZE THIS DANGER. 

4.  WHEN THERE ARE NO BOOKS AND RECORDS, WILLFULNESS MAY BE INFERRED
BY THE JURY FROM THAT FACT COUPLED WITH PROOF OF AN UNDERSTATEMENT OF
INCOME.  BUT WHEN THE GOVERNMENT USES THE NET WORTH METHOD, AND THE
BOOKS AND RECORDS OF THE TAXPAYER APPEAR CORRECT ON THEIR FACE, AN
INFERENCE OF WILLFULNESS FROM NET WORTH INCREASES ALONE MIGHT BE
UNJUSTIFIED, ESPECIALLY WHERE THE CIRCUMSTANCES SURROUNDING THE
DEFICIENCY ARE AS CONSISTENT WITH INNOCENT MISTAKE AS WITH WILLFUL
VIOLATION.  ON THE OTHER HAND, THE VERY FAILURE OF THE BOOKS TO
DISCLOSE A PROVED DEFICIENCY MIGHT INDICATE DELIBERATE FALSIFICATION. 

5.  IN MANY CASES OF THIS TYPE, THE PROSECUTION RELIES ON THE
TAXPAYER'S STATEMENTS, MADE TO REVENUE AGENTS IN THE COURSE OF THEIR
INVESTIGATION, TO ESTABLISH VITAL LINKS IN THE GOVERNMENT'S PROOF.  BUT
WHEN A REVENUE AGENT CONFRONTS THE TAXPAYER WITH AN APPARENT
DEFICIENCY, THE LATTER MAY BE MORE CONCERNED WITH A QUICK SETTLEMENT
THAN AN HONEST SEARCH FOR THE TRUTH.  MOREOVER, THE PROSECUTION MAY
PICK AND CHOOSE FROM THE TAXPAYER'S STATEMENT, RELYING ON THE FAVORABLE
PORTION AND THROWING ASIDE THAT WHICH DOES NOT BOLSTER ITS POSITION. 
THE PROBLEM OF CORROBORATION, DEALT WITH IN THE COMPANION CASES OF
SMITH V. UNITED STATES, POST, P. 147, AND UNITED STATES V. CALDERON,
POST, P. 160, THEREFORE BECOMES CRUCIAL. 

6.  THE STATUTE DEFINES THE OFFENSE HERE INVOLVED BY INDIVIDUAL
YEARS.  WHILE THE GOVERNMENT MAY BE ABLE TO PROVE WITH REASONABLE
ACCURACY AN INCREASE IN NET WORTH OVER A PERIOD OF YEARS, IT OFTEN HAS
GREAT DIFFICULTY IN RELATING THAT INCOME SUFFICIENTLY TO ANY SPECIFIC
PROSECUTION YEAR.  WHILE A STEADILY INCREASING NET WORTH MAY JUSTIFY AN
INFERENCE OF ADDITIONAL EARNINGS, UNLESS THAT INCREASE CAN BE
REASONABLY ALLOCATED TO THE APPROPRIATE TAX YEAR THE TAXPAYER MAY BE
CONVICTED ON COUNTS OF WHICH HE IS INNOCENT. 

WHILE WE CANNOT SAY THAT THESE PITFALLS INHERENT IN THE NET WORTH
METHOD FORECLOSE ITS USE, THEY DO REQUIRE THE EXERCISE OF GREAT CARE
AND RESTRAINT.  THE COMPLEXITY OF THE PROBLEM IS SUCH THAT IT CANNOT BE
MET MERELY BY THE APPLICATION OF GENERAL RULES.  CF.  UNIVERSAL CAMERA
CORP. V. LABOR BOARD, 340 U.S. 474, 489.  TRIAL COURTS SHOULD APPROACH
THESE CASES IN THE FULL REALIZATION THAT THE TAXPAYER MAY BE ENSNARED
IN A SYSTEM WHICH, THOUGH DIFFICULT FOR THE PROSECUTION TO UTILIZE, IS
EQUALLY HAD FOR THE DEFENDANT TO REFUTE.  CHARGES SHOULD BE SPECIALLY
CLEAR, INCLUDING, IN ADDITION TO THE FORMAL INSTRUCTIONS, A SUMMARY OF
THE NATURE OF THE NET WORTH METHOD, THE ASSUMPTIONS ON WHICH IT RESTS,
AND THE INFERENCES AVAILABLE BOTH FOR AND AGAINST THE ACCUSED. 
APPELLATE COURTS SHOULD REVIEW THE CASES, BEARING CONSTANTLY IN MIND
THE DIFFICULTIES THAT ARISE WHEN CIRCUMSTANTIAL EVIDENCE AS TO GUILT IS
THE CHIEF WEAPON OF A METHOD THAT IS ITSELF ONLY AN APPROXIMATION. 

WITH THESE CONSIDERATIONS AS A GUIDE, WE TURN TO THE FACTS. 

THE INDICTMENT RETURNED AGAINST THE HOLLANDS EMBRACED THREE COUNTS. 
THE FIRST TWO CHARGED MARION L. HOLLAND, THE HUSBAND, WITH ATTEMPTED
EVASION OF HIS INCOME TAX FOR THE YEARS 1946 AND 1947.  HE WAS FOUND
NOT GUILTY BY THE JURY ON BOTH OF THESE COUNTS.  THE THIRD COUNT
CHARGED HOLLAND AND HIS WIFE WITH ATTEMPTED EVASION IN 1948 OF THE TAX
ON $19,736.74 NOT REPORTED BY THEM IN THEIR JOINT RETURN.  THE JURY
FOUND BOTH OF THEM GUILTY.  MRS. HOLLAND WAS FINED $5,000, WHILE HER
HUSBAND WAS SENTENCED TO TWO YEARS' IMPRISONMENT AND FINED $10,000. 

THE GOVERNMENT'S OPENING NET WORTH COMPUTATION SHOWS DEFENDANTS WITH
A NET WORTH OF $19,152.59 AT THE BEGINNING OF THE INDICTMENT PERIOD. 
SHORTLY THEREAFTER, DEFENDANTS PURCHASED A HOTEL, BAR AND RESTAURANT,
AND BEGAN OPERATING THEM AS THE HOLLAND HOUSE.  WITHIN THREE YEARS,
DURING WHICH THEY REPORTED $31,265.92 IN TAXABLE INCOME, THEIR APPARENT
NET WORTH INCREASED BY $113,185.32.  (FN3) THE GOVERNMENT'S EVIDENCE
INDICATED THAT, DURING 1948, THE YEAR FOR WHICH DEFENDANTS WERE
CONVICTED, THEIR NET WORTH INCREASED BY SOME $32,000, WHILE THE AMOUNT
OF TAXABLE INCOME REPORTED BY THEM TOTALED LESS THAN ONE-THIRD THAT
SUM. 

USE OF NET WORTH METHOD WHERE BOOKS ARE APPARENTLY ADEQUATE. 

AS WE HAVE PREVIOUSLY NOTED, THIS IS NOT THE FIRST NET WORTH CASE TO
REACH THIS COURT.  IN UNITED STATES V. JOHNSON, SUPRA, THE COURT
AFFIRMED A TAX-EVASION CONVICTION ON EVIDENCE SHOWING THAT THE
TAXPAYER'S EXPENDITURES HAD EXCEEDED HIS "AVAILABLE DECLARED
RESOURCES."  SINCE JOHNSON AND HIS CONCEALED ESTABLISHMENTS HAD
DESTROYED THE FEW RECORDS THEY HAD, THE GOVERNMENT WAS FORCED TO RESORT
TO THE NET WORTH METHOD OF PROOF.  THIS COURT APPROVED ON THE GROUND
THAT "TO REQUIRE MORE  ... WOULD BE TANTAMOUNT TO HOLDING THAT SKILFUL
CONCEALMENT IS AN INVINCIBLE BARRIER TO PROOF," 319 U.S., AT 517-518. 
PETITIONERS ASK THAT WE RESTRICT THE JOHNSON CASE TO SITUATIONS WHERE
THE TAXPAYER HAS KEPT NO BOOKS.  THEY CLAIM THAT SEC. 41 OF THE
INTERNAL REVENUE CODE, (FN4) EXPRESSLY LIMITING THE AUTHORITY OF THE
GOVERNMENT TO DEVIATE FROM THE TAXPAYER'S METHOD OF ACCOUNTING,
CONFINES THE NET WORTH METHOD TO SITUATIONS WHERE THE TAXPAYER HAS NO
BOOKS OR WHERE HIS BOOKS ARE INADEQUATE.  DESPITE SOME SUPPORT FOR THIS
VIEW AMONG THE LOWER COURTS (SEE UNITED STATES V. RIGANTO, 121 F. SUPP.
158, 161, 162; UNITED STATES V. WILLIAMS, 208 F.2D 437, 437-438; REMMER
V. UNITED STATES, 205 F.2D 277, 286, JUDGMENT VACATED ON OTHER GROUNDS,
347 U.S. 227), WE CONCLUDE THAT THIS ARGUMENT MUST FAIL.  THE PROVISION
THAT THE "NET INCOME SHALL BE COMPUTED  ...  IN ACCORDANCE WITH THE
METHOD OF ACCOUNTING REGULARLY EMPLOYED IN KEEPING THE BOOKS OF SUCH
TAXPAYER," REFERS TO METHODS SUCH AS THE CASH RECEIPTS OR THE ACCRUAL
METHOD, WHICH ALLOCATE INCOME AND EXPENSES BETWEEN YEARS.  UNITED
STATES V. AMERICAN CAN CO., 280 U.S. 412, 419.  THE NET WORTH
TECHNIQUE, AS USED IN THIS CASE, IS NOT A METHOD OF ACCOUNTING
DIFFERENT FROM THE ONE EMPLOYED BY DEFENDANTS.  IT IS NOT A METHOD OF
ACCOUNTING AT ALL, EXCEPT INSOFAR AS IT CALLS UPON TAXPAYERS TO ACCOUNT
FOR THEIR UNEXPLAINED INCOME.  PETITIONERS' ACCOUNTING SYSTEM WAS
APPROPRIATE FOR THEIR BUSINESS PURPOSES; AND, ADMITTEDLY, THE
GOVERNMENT DID NOT DETECT ANY SPECIFIC FALSE ENTRIES THEREIN. 
NEVERTHELESS, IF WE BELIEVE THE GOVERNMENT'S EVIDENCE, AS THE JURY DID,
WE MUST CONCLUDE THAT THE DEFENDANTS' BOOKS WERE MORE CONSISTENT THAN
TRUTHFUL, AND THAT MANY ITEMS OF INCOME HAD DISAPPEARED BEFORE THEY HAD
EVEN REACHED THE RECORDING STAGE.  CERTAINLY CONGRESS NEVER INTENDED TO
MAKE SEC. 41 A SET OF BLINDERS WHICH PREVENTS THE GOVERNMENT FROM
LOOKING BEYOND THE SELF-SERVING DECLARATIONS IN A TAXPAYER'S BOOKS. 
"THE UNITED STATES HAS RELIED FOR THE COLLECTION OF ITS INCOME TAX
LARGELY UPON THE TAXPAYER'S OWN DISCLOSURES  ...  .  THIS SYSTEM CAN
FUNCTION SUCCESSFULLY ONLY IF THOSE WITHIN AND NEAR TAXABLE INCOME KEEP
AND RENDER TRUE ACCOUNTS."  SPIES V. UNITED STATES, 317 U.S., AT 495. 
TO PROTECT THE REVENUE FROM THOSE WHO DO NOT "RENDER TRUE ACCOUNTS,"
THE GOVERNMENT MUST BE FREE TO USE ALL LEGAL EVIDENCE AVAILABLE TO IT
IN DETERMINING WHETHER THE STORY TOLD BY THE TAXPAYER'S BOOKS
ACCURATELY REFLECTS HIS FINANCIAL HISTORY. 

ESTABLISHING A DEFINITE OPENING NET WORTH. 

WE AGREE WITH PETITIONERS THAT AN ESSENTIAL CONDITION IN CASES OF
THIS TYPE IS THE ESTABLISHMENT, WITH REASONABLE CERTAINTY, OF AN
OPENING NET WORTH, TO SERVE AS A STARTING POINT FROM WHICH TO CALCULATE
FUTURE INCREASES IN THE TAXPAYER'S ASSETS.  THE IMPORTANCE OF ACCURACY
IN THIS FIGURE IS IMMEDIATELY APPARENT, AS THE CORRECTNESS OF THE
RESULT DEPENDS ENTIRELY UPON THE INCLUSION IN THIS SUM OF ALL ASSETS ON
HAND AT THE OUTSET.  THE GOVERNMENT'S NET WORTH STATEMENT INCLUDED AS
ASSETS AT THE STARTING POINT STOCK COSTING $29,650 AND $2,153.09 IN
CASH.  (FN5)  THE HOLLANDS CLAIM THAT THE GOVERNMENT FAILED TO INCLUDE
IN ITS OPENING NET WORTH FIGURE AN ACCUMULATION OF $113,000 IN CURRENCY
AND "HUNDREDS AND POSSIBLY THOUSANDS OF SHARES OF STOCK" WHICH THEY
OWNED AT THE BEGINNING OF THE PROSECUTION PERIOD.  THEY ASSERTED THAT
THE CASH HAD BEEN ACCUMULATED PRIOR TO THE OPENING DATE, $104,000 OF IT
BEFORE 1933, AND THE BALANCE BETWEEN 1933 AND 1945.  THEY HAD KEPT THE
MONEY, THEY CLAIMED, MOSTLY IN $100 BILLS AND AT VARIOUS TIMES IN A
CANVAS BAG, A SUITCASE, AND A METAL BOX.  THEY HAD NEVER DIPPED INTO IT
UNTIL 1946, WHEN IT BECAME THE SOURCE OF THE APPARENT INCREASE IN
WEALTH WHICH THE GOVERNMENT LATER FOUND IN THE FORM OF A HOME, A RANCH,
A HOTEL AND OTHER PROPERTIES.  THIS WAS THE MAIN ISSUE PRESENTED TO THE
JURY.  THE GOVERNMENT DID NOT INTRODUCE ANY DIRECT EVIDENCE TO DISPUTE
THIS CLAIM.  RATHER IT RELIED ON THE INFERENCE THAT ANYONE WHO HAD HAD
$104,000 IN CASH WOULD NOT HAVE UNDERGONE THE HARDSHIP AND PRIVATION
ENDURED BY THE HOLLANDS ALL DURING THE LATE 20'S AND THROUGHOUT THE
30'S.  DURING THIS PERIOD THEY LOST THEIR CAFE BUSINESS; ACCUMULATED
$35,000 IN DEBTS WHICH WERE NEVER PAID; LOST THEIR HOUSEHOLD FURNITURE
BECAUSE OF AN UNPAID BALANCE OF $92.20; SUFFERED A DEFAULT JUDGMENT FOR
$506.66; AND WERE FORCED TO SEPARATE FOR SOME EIGHT YEARS BECAUSE IT
WAS TO THEIR "ECONOMICAL ADVANTAGE."  DURING THE LATTER PART OF THIS
PERIOD, MRS. HOLLAND WAS OBLIGED TO SUPPORT HERSELF AND THEIR SON BY
WORKING AT A MOTION PICTURE HOUSE IN DENVER WHILE HER HUSBAND WAS IN
WYOMING.  THE EVIDENCE FURTHER INDICATED THAT IMPROVEMENTS TO THE
HOTEL, AND OTHER ASSETS ACQUIRED DURING THE PROSECUTION YEARS, WERE
BOUGHT IN INSTALLMENTS AND WITH BILLS OF SMALL DENOMINATIONS, AS IF OUT
OF EARNINGS RATHER THAN FROM AN ACCUMULATION OF $100 BILLS.  THE
GOVERNMENT ALSO NEGATIVED THE POSSIBILITY OF PETITIONERS' ACCUMULATING
SUCH A SUM BY CHECKING MR. HOLLAND'S INCOME TAX RETURNS AS FAR BACK AS
1913, SHOWING THAT THE INCOME DECLARED IN PREVIOUS YEARS WAS
INSUFFICIENT TO ENABLE DEFENDANTS TO SAVE ANY APPRECIABLE AMOUNT OF
MONEY.  THE JURY RESOLVED THIS QUESTION OF THE EXISTENCE OF A CACHE OF
CASH AGAINST THE HOLLANDS, AND WE BELIEVE THE VERDICT WAS FULLY
SUPPORTED. 

AS TO THE STOCK, MR. HOLLAND BEGAN DABBLING IN THE STOCK MARKET IN A
SMALL WAY IN 1937 AND 1938.  HIS PURCHASES APPEAR TO HAVE BEEN
NEGLIGIBLE AND ON BORROWED MONEY.  HIS ONLY REPORTED INCOME FROM STOCKS
WAS IN HIS TAX RETURNS FOR 1944 AND 1945 WHEN HE DISCLOSED DIVIDENDS OF
$1,600 AND $1,850 RESPECTIVELY.  WHILE THE RECORD IS UNCLEAR ON THIS
POINT, IT APPEARS THAT DURING THE PERIOD FROM 1942 TO 1945 HE PLEDGED
CONSIDERABLE STOCK AS COLLATERAL FOR LOANS.  THERE IS NO EVIDENCE,
HOWEVER, SHOWING WHAT PORTIONS OF THIS STOCK MR. HOLLAND ACTUALLY OWNED
AT ANY ONE TIME, SINCE HE WAS TRADING IN SHARES FROM DAY TO DAY.  AND,
EVEN IF WE ASSUME THAT HE OWNED ALL THE STOCK, SOME 4,550 SHARES, THERE
IS EVIDENCE THAT MR. HOLLAND'S STOCK TRANSACTIONS WERE USUALLY IN
"STOCK SELLING FOR ONLY A FEW DOLLARS PER SHARE."  IN THIS LIGHT, THE
GOVERNMENT'S FIGURE OF APPROXIMATELY $30,000 IS NOT OUT OF LINE.  IN
1946 HOLLAND REPORTED THE SALE OF ABOUT $50,000 IN STOCK, BUT NO
RECEIPT OF DIVIDENDS; NOR WERE DIVIDENDS REPORTED IN SUBSEQUENT YEARS. 
IT IS REASONABLE TO ASSUME THAT HE SOLD ALL OF HIS STOCK IN 1946.  IN
FACT, HOLLAND STATED TO THE REVENUE AGENTS THAT HE HAD NOT "FOOLED WITH
THE STOCK MARKET" SINCE THE BEGINNING OF 1946; THAT HE HAD NOT OWNED
ANY STOCKS FOR TWO OR THREE YEARS PRIOR TO 1949; THAT HE HAD SAVED
ABOUT $50,000 FROM 1933 TO 1946, AND THAT IN 1946 HE HAD $9,000 IN CASH
WITH THE BALANCE OF HIS SAVINGS IN STOCKS.  (FN6)  THE GOVERNMENT'S
EVIDENCE, BOLSTERED BY THE ADMISSIONS OF PETITIONERS, PROVIDED
CONVINCING PROOF THAT THEY HAD NO STOCK OTHER THAN THE AMOUNT INCLUDED
IN THE OPENING NET WORTH STATEMENT.  BY THE SAME TOKEN, THE
PETITIONERS' ARGUMENT THAT THE GOVERNMENT FAILED TO ACCOUNT FOR THE
PROCEEDS OF STOCK SOLD BY THEM BEFORE THE STARTING DATE MUST ALSO
FAIL.  THE GOVERNMENT'S EVIDENCE FULLY JUSTIFIED THE JURY'S CONCLUSION
THAT THERE WERE NO PROCEEDS OVER AND ABOVE THE AMOUNT CREDITED TO
PETITIONERS. 

THE GOVERNMENT'S INVESTIGATION OF LEADS. 

SO OVERWHELMING, INDEED, WAS THE GOVERNMENT'S PROOF ON THE ISSUE OF
CASH ON HAND THAT THE GOVERNMENT AGENTS DID NOT BOTHER TO CHECK
PETITIONERS' STORY THAT SOME OF THE CASH REPRESENTED PROCEEDS FROM THE
SALES OF TWO CAFES IN THE 20'S; AND THAT IN 1933 AN ADDITIONAL PORTION
OF THIS $113,000 IN CURRENCY WAS OBTAINED BY EXCHANGING SOME $12,000 IN
GOLD AT A NAMED BANK.  WHILE SOUND ADMINISTRATION OF THE CRIMINAL LAW
REQUIRES THAT THE NET WORTH APPROACH - A POWERFUL METHOD OF PROVING
OTHERWISE UNDETECTABLE OFFENSES - SHOULD NOT BE DENIED THE GOVERNMENT,
ITS FAILURE TO INVESTIGATE LEADS FURNISHED BY THE TAXPAYER MIGHT RESULT
IN SERIOUS INJUSTICE.  IT IS, OF COURSE, NOT FOR US TO PRESCRIBE
INVESTIGATIVE PROCEDURES, (FN7) BUT IT IS WITHIN THE PROVINCE OF THE
COURTS TO PASS UPON THE SUFFICIENCY OF THE EVIDENCE TO CONVICT.  WHEN
THE GOVERNMENT RESTS ITS CASE SOLELY ON THE APPROXIMATIONS AND
CIRCUMSTANTIAL INFERENCES OF A NET WORTH COMPUTATION, THE COGENCY OF
ITS PROOF DEPENDS UPON ITS EFFECTIVE NEGATION OF REASONABLE
EXPLANATIONS BY THE TAXPAYER INCONSISTENT WITH GUILT.  SUCH REFUTATION
MIGHT FAIL WHEN THE GOVERNMENT DOES NOT TRACK DOWN RELEVANT LEADS
FURNISHED BY THE TAXPAYER - LEADS REASONABLY SUSCEPTIBLE OF BEING
CHECKED, WHICH, IF TRUE, WOULD ESTABLISH THE TAXPAYER'S INNOCENCE. 
WHEN THE GOVERNMENT FAILS TO SHOW AN INVESTIGATION INTO THE VALIDITY OF
SUCH LEADS, THE TRIAL JUDGE MAY CONSIDER THEM AS TRUE AND THE
GOVERNMENT'S CASE INSUFFICIENT TO GO TO THE JURY.  THIS SHOULD AID IN
FORESTALLING UNJUST PROSECUTIONS, AND HAVE THE PRACTICAL ADVANTAGE OF
ELIMINATING THE DILEMMA, ESPECIALLY SERIOUS IN THIS TYPE OF CASE, OF
THE ACCUSED'S BEING FORCED BY THE RISK OF AN ADVERSE VERDICT TO COME
FORWARD TO SUBSTANTIATE LEADS WHICH HE HAD PREVIOUSLY FURNISHED THE
GOVERNMENT.  IT IS A PROCEDURE ENTIRELY CONSISTENT WITH THE POSITION
LONG ESPOUSED BY THE GOVERNMENT, THAT ITS DUTY IS NOT TO CONVICT BUT TO
SEE THAT JUSTICE IS DONE. 

IN THIS CASE, THE GOVERNMENT'S DETAILED INVESTIGATION WAS A COMPLETE
ANSWER TO THE PETITIONERS' EXPLANATIONS.  ADMITTING THAT IN CASES OF
THIS KIND IT "WOULD BE DESIRABLE TO TRACK TO ITS CONCLUSION EVERY
CONCEIVABLE LINE OF INQUIRY," THE GOVERNMENT CENTERED ITS INQUIRY ON
THE EXPLANATIONS OF THE HOLLANDS AND ENTERED UPON A DETAILED
INVESTIGATION OF THEIR LIVES COVERING SEVERAL STATES AND OVER A SCORE
OF YEARS.  THE JURY COULD HAVE BELIEVED THAT MR. HOLLAND HAD RECEIVED
MONEYS FROM THE SALE OF CAFES IN THE TWENTIES AND THAT HE HAD TURNED IN
GOLD IN 1933 AND STILL IT COULD REASONABLY HAVE CONCLUDED THAT THE
HOLLANDS LACKED THE CLAIMED CACHE OF CURRENCY IN 1946, THE CRUCIAL
YEAR.  EVEN IF THESE LEADS WERE ASSUMED TO BE TRUE, THE GOVERNMENT'S
EVIDENCE WAS SUFFICIENT TO CONVICT.  THE DISTANT INCIDENTS RELIED ON BY
PETITIONERS WERE SO REMOTE IN TIME AND IN THEIR CONNECTION WITH
SUBSEQUENT EVENTS PROVED BY THE GOVERNMENT THAT, WHATEVER PETITIONERS'
NET WORTH IN 1933, IT APPEARS BY CONVINCING EVIDENCE THAT ON JANUARY 1,
1946, THEY HAD ONLY SUCH ASSETS AS THE GOVERNMENT CREDITED TO THEM IN
ITS OPENING NET WORTH STATEMENT. 

NET WORTH INCREASES MUST BE ATTRIBUTABLE TO TAXABLE INCOME. 

ALSO REQUISITE TO THE USE OF THE NET WORTH METHOD IS EVIDENCE
SUPPORTING THE INFERENCE THAT THE DEFENDANT'S NET WORTH INCREASES ARE
ATTRIBUTABLE TO CURRENTLY TAXABLE INCOME. 

THE GOVERNMENT INTRODUCED EVIDENCE TENDING TO SHOW THAT ALTHOUGH THE
BUSINESS OF THE HOTEL APPARENTLY INCREASED DURING THE YEARS IN
QUESTION, THE REPORTED PROFITS FELL TO APPROXIMATELY ONE-QUARTER OF THE
AMOUNT DECLARED BY THE PREVIOUS MANAGEMENT IN A COMPARABLE PERIOD;
(FN8) THAT THE CASH REGISTER TAPES, ON WHICH THE BOOKS WERE BASED, WERE
DESTROYED BY THE PETITIONERS; AND THAT THE BOOKS DID NOT REFLECT THE
RECEIPT OF MONEY LATER WITHDRAWN FROM THE HOTEL'S CASH REGISTER FOR THE
PERSONAL LIVING EXPENSES OF THE PETITIONERS AND FOR PAYMENTS MADE FOR
RESTAURANT SUPPLIES.  THE UNRECORDED ITEMS IN THIS LATTER CATEGORY
TOTALED OVER $12,500 FOR 1948.  THUS THERE WAS AMPLE EVIDENCE THAT NOT
ALL THE INCOME FROM THE HOTEL HAD BEEN INCLUDED IN ITS BOOKS AND
RECORDS.  IN FACT, THE NET WORTH INCREASE CLAIMED BY THE GOVERNMENT FOR
1948 COULD HAVE COME ENTIRELY FROM THE UNREPORTED INCOME OF THE HOTEL
AND STILL THE HOTEL'S TOTAL EARNINGS FOR THE YEAR WOULD HAVE BEEN ONLY
73% OF THE SUM REPORTED BY THE PREVIOUS OWNER FOR THE COMPARABLE PERIOD
IN 1945. 

BUT PETITIONERS CLAIM THE GOVERNMENT FAILED TO ADDUCE ADEQUATE PROOF
BECAUSE IT DID NOT NEGATIVE ALL THE POSSIBLE NONTAXABLE SOURCES OF THE
ALLEGED NET WORTH INCREASES - GIFTS, LOANS, INHERITANCES, ETC.  WE
CANNOT AGREE.  THE GOVERNMENT'S PROOF, IN OUR VIEW, CARRIED WITH IT THE
NEGATIONS THE PETITIONERS URGE.  INCREASES IN NET WORTH, STANDING
ALONE, CANNOT BE ASSUMED TO BE ATTRIBUTABLE TO CURRENTLY TAXABLE
INCOME.  BUT PROOF OF A LIKELY SOURCE, FROM WHICH THE JURY COULD
REASONABLY FIND THAT THE NET WORTH INCREASES SPRANG, IS SUFFICIENT.  IN
THE JOHNSON CASE, WHERE THERE WAS NO DIRECT EVIDENCE OF THE SOURCE OF
THE TAXPAYER'S INCOME, THIS COURT'S CONCLUSION THAT THE TAXPAYER "HAD
LARGE, UNREPORTED INCOME WAS REINFORCED BY PROOF  ...  THAT FOR CERTAIN
YEARS HIS PRIVATE EXPENDITURES  ...  EXCEEDED HIS AVAILABLE DECLARED
RESOURCES."  THIS WAS SUFFICIENT TO SUPPORT "THE FINDING THAT HE HAD
SOME UNREPORTED INCOME WHICH WAS PROPERLY ATTRIBUTABLE TO HIS EARNINGS
...  ."  UNITED STATES V. JOHNSON, 319 U.S., AT 517.  THERE THE
TAXPAYER WAS THE OWNER OF AN UNDISCLOSED BUSINESS CAPABLE OF PRODUCING
TAXABLE INCOME; HERE THE DISCLOSED BUSINESS OF THE PETITIONERS WAS
PROVEN TO BE CAPABLE OF PRODUCING MUCH MORE INCOME THAN WAS REPORTED
AND IN A QUANTITY SUFFICIENT TO ACCOUNT FOR THE NET WORTH INCREASES. 
ANY OTHER RULE WOULD BURDEN THE GOVERNMENT WITH INVESTIGATING THE MANY
POSSIBLE NONTAXABLE SOURCES OF INCOME, EACH OF WHICH IS AS UNLIKELY AS
IT IS DIFFICULT TO DISPROVE.  THIS IS NOT TO SAY THAT THE GOVERNMENT
MAY DISREGARD EXPLANATIONS OF THE DEFENDANT REASONABLY SUSCEPTIBLE OF
BEING CHECKED.  BUT WHERE RELEVANT LEADS ARE NOT FORTHCOMING, THE
GOVERNMENT IS NOT REQUIRED TO NEGATE EVERY POSSIBLE SOURCE OF
NONTAXABLE INCOME, A MATTER PECULIARLY WITHIN THE KNOWLEDGE OF THE
DEFENDANT.  SEE ROSSI V. UNITED STATES, 289 U.S. 89, 91-92. 

THE BURDEN OF PROOF REMAINS ON THE GOVERNMENT. 

NOR DOES THIS RULE SHIFT THE BURDEN OF PROOF.  THE GOVERNMENT MUST
STILL PROVE EVERY ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT
THOUGH NOT TO A MATHEMATICAL CERTAINTY.  THE SETTLED STANDARDS OF THE
CRIMINAL LAW ARE APPLICABLE TO NET WORTH CASES JUST AS TO PROSECUTIONS
FOR OTHER CRIMES.  ONCE THE GOVERNMENT HAS ESTABLISHED ITS CASE, THE
DEFENDANT REMAINS QUIET AT HIS PERIL.  CF. YEE HEM V. UNITED STATES,
268 U.S. 178, 185.  THE PRACTICAL DISADVANTAGES TO THE TAXPAYER ARE
LESSENED BY THE PRESSURES ON THE GOVERNMENT TO CHECK AND NEGATE
RELEVANT LEADS.    WILLFULNESS MUST BE PRESENT. 

A FINAL ELEMENT NECESSARY FOR CONVICTION IS WILLFULNESS.  THE
PETITIONERS CONTEND THAT WILLFULNESS "INVOLVES A SPECIFIC INTENT WHICH
MUST BE PROVEN BY INDEPENDENT EVIDENCE AND WHICH CANNOT BE INFERRED
FROM THE MERE UNDERSTATEMENT OF INCOME."  THIS IS A FAIR STATEMENT OF
THE RULE.  HERE, HOWEVER, THERE WAS EVIDENCE OF A CONSISTENT PATTERN OF
UNDERREPORTING LARGE AMOUNTS OF INCOME, AND OF THE FAILURE ON
PETITIONERS' PART TO INCLUDE ALL OF THEIR INCOME IN THEIR BOOKS AND
RECORDS.  SINCE, ON PROPER SUBMISSION, THE JURY COULD HAVE FOUND THAT
THESE ACTS SUPPORTED AN INFERENCE OF WILLFULNESS, THEIR VERDICT MUST
STAND.  SPIES V. UNITED STATES, SUPRA, AT 499-500. 

THE CHARGE TO THE JURY. 

PETITIONERS PRESS UPON US, FINALLY, THE CONTENTION THAT THE
INSTRUCTIONS OF THE TRIAL COURT WERE SO ERRONEOUS AND MISLEADING AS TO
CONSTITUTE GROUNDS FOR REVERSAL.  WE HAVE CAREFULLY REVIEWED THE
INSTRUCTIONS AND CANNOT AGREE.  BUT SOME REQUIRE COMMENT.  THE
PETITIONERS ASSAIL THE REFUSAL OF THE TRIAL JUDGE TO INSTRUCT THAT
WHERE THE GOVERNMENT'S EVIDENCE IS CIRCUMSTANTIAL IT MUST BE SUCH AS TO
EXCLUDE EVERY REASONABLE HYPOTHESIS OTHER THAN THAT OF GUILT.  THERE IS
SOME SUPPORT FOR THIS TYPE OF INSTRUCTION IN THE LOWER COURT DECISIONS,
GARST V. UNITED STATES, 180 F. 339, 343; ANDERSON V. UNITED STATES, 30
F.2D 485-487; STUTZ V. UNITED STATES, 47 F.2D 1029, 1030; HANSON V.
UNITED STATES, 208 F.2D 914, 916, BUT THE BETTER RULE IS THAT WHERE THE
JURY IS PROPERLY INSTRUCTED ON THE STANDARDS FOR REASONABLE DOUBT, SUCH
AN ADDITIONAL INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE IS CONFUSING AND
INCORRECT, UNITED STATES V. AUSTIN-BAGLEY CORP., 31 F.2D 229, 234,
CERT. DENIED, 279 U.S. 863; UNITED STATES V. BECKER, 62 F.2D 1007,
1010; I WIGMORE, EVIDENCE (3D ED.), SECS. 25-26. 

CIRCUMSTANTIAL EVIDENCE IN THIS RESPECT IS INTRINSICALLY NO DIFFERENT
FROM TESTIMONIAL EVIDENCE.  ADMITTEDLY, CIRCUMSTANTIAL EVIDENCE MAY IN
SOME CASES POINT TO A WHOLLY INCORRECT RESULT.  YET THIS IS EQUALLY
TRUE OF TESTIMONIAL EVIDENCE.  IN BOTH INSTANCES, A JURY IS ASKED TO
WEIGH THE CHANCES THAT THE EVIDENCE CORRECTLY POINTS TO GUILT AGAINST
THE POSSIBILITY OF INACCURACY OR AMBIGUOUS INFERENCE.  IN BOTH, THE
JURY MUST USE ITS EXPERIENCE WITH PEOPLE AND EVENTS IN WEIGHING THE
PROBABILITIES.  IF THE JURY IS CONVINCED BEYOND A REASONABLE DOUBT, WE
CAN REQUIRE NO MORE. 

EVEN MORE INSISTENT IS THE PETITIONERS' ATTACK, NOT MADE BELOW, ON
THE CHARGE OF THE TRIAL JUDGE AS TO REASONABLE DOUBT.  HE DEFINED IT AS
"THE KIND OF DOUBT  ...  WHICH YOU FOLKS IN THE MORE SERIOUS AND
IMPORTANT AFFAIRS OF YOUR OWN LIVES MIGHT BE WILLING TO ACT UPON."  WE
THINK THIS SECTION OF THE CHARGE SHOULD HAVE BEEN IN TERMS OF THE KIND
OF DOUBT THAT WOULD MAKE A PERSON HESITATE TO ACT, SEE BISHOP V. UNITED
STATES, 71 APP. D.C.  132, 137-138, 107 F.2D 297, 303, RATHER THAN THE
KIND ON WHICH HE WOULD BE WILLING TO ACT.  BUT WE BELIEVE THAT THE
INSTRUCTION AS GIVEN WAS NOT OF THE TYPE THAT COULD MISLEAD THE JURY
INTO FINDING NO REASONABLE DOUBT WHEN IN FACT THERE WAS SOME.  A
DEFINITION OF A DOUBT AS SOMETHING THE JURY WOULD ACT UPON WOULD SEEM
TO CREATE CONFUSION RATHER THAN MISAPPREHENSION.  "ATTEMPTS TO EXPLAIN
THE TERM 'REASONABLE DOUBT' DO NOT USUALLY RESULT IN MAKING IT ANY
CLEARER TO THE MINDS OF THE JURY," MILES V. UNITED STATES, 103 U.S.
304, 312, AND WE FEEL THAT, TAKEN AS A WHOLE, THE INSTRUCTIONS
CORRECTLY CONVEYED THE CONCEPT OF REASONABLE DOUBT TO THE JURY. 

PETITIONERS ALSO ASSIGN AS ERROR THE REFUSAL OF THE TRIAL JUDGE TO
GIVE INSTRUCTIONS ON THE WORDING OF THE CRIMINAL STATUTE UNDER WHICH
THEY WERE INDICTED, EVEN THOUGH THE JUDGE FULLY AND CORRECTLY
INSTRUCTED THE JURY ON EVERY ELEMENT OF THE CRIME.  THE IMPOSSIBILITY
OF POINTING TO ANY WAY IN WHICH DEFENDANTS' RIGHTS WERE PREJUDICED BY
THIS, ASSUMING IT WAS ERROR, IS ENOUGH TO INDICATE THAT THE TRIAL JUDGE
WAS CORRECT, SEE UNITED STATES V. CENTER VEAL & BEEF CO., 162 F.2D 766,
771.  THERE IS HERE NO QUESTION OF THE JURY'S DUTY TO APPLY THE LAW TO
THE FACTS.  THAT OPERATION IMPLIES THE APPLICATION OF A GENERAL
STANDARD TO THE SPECIFIC PHYSICAL FACTS AS FOUND BY THE JURY.  THE
MEANINGS OF STANDARDS SUCH AS WILLFULNESS WERE PROPERLY EXPLAINED BY
THE TRIAL JUDGE IN NO GREATER PARTICULARITY THAN NECESSARY, AND THUS
THE JURY'S FUNCTION WAS NOT INVADED. 

IN THE LIGHT OF THESE CONSIDERATIONS THE JUDGMENT IS AFFIRMED. 

FN1  26 U.S.C. SEC. 145.  PENALTIES.  "(B) FAILURE TO COLLECT AND PAY
OVER TAX, OR ATTEMPT TO DEFEAT OR EVADE TAX.  ANY PERSON REQUIRED UNDER
THIS CHAPTER TO COLLECT, ACCOUNT FOR, AND PAY OVER ANY TAX IMPOSED BY
THIS CHAPTER, WHO WILLFULLY FAILS TO COLLECT OR TRUTHFULLY ACCOUNT FOR
AND PAY OVER SUCH TAX, AND ANY PERSON WHO WILLFULLY ATTEMPTS IN ANY
MANNER TO EVADE OR DEFEAT ANY TAX IMPOSED BY THIS CHAPTER OR THE
PAYMENT THEREOF, SHALL, IN ADDITION TO OTHER PENALTIES PROVIDED BY LAW,
BE GUILTY OF A FELONY  ...  ." 

FN2  FRIEDBERG V. UNITED STATES, POST, P. 142; UNITED STATES V.
CALDERONE, POST, P. 160; SMITH V. UNITED STATES, POST, P. 147.  BECAUSE
OF THE EXTENSIVE FACTUAL BACKGROUNDS THEY REQUIRE, AND THE SIGNIFICANT
DIFFERENCES IN THE PROBLEMS THEY PRESENT, THE CASES ARE TREATED IN
SEPARATE OPINIONS. 

FN3  THIS IS A CORRECTED FIGURE TAKING INTO ACCOUNT CERTAIN
NONTAXABLE INCOME AND NONDEDUCTIBLE EXPENSES OF DEFENDANTS. 

FN4  26 U.S.C. "PART IV. - ACCOUNTING PERIODS AND METHODS OF
ACCOUNTING.  SEC. 41.  GENERAL RULE. 

"THE NET INCOME SHALL BE COMPUTED UPON THE BASIS OF THE TAXPAYER'S
ANNUAL ACCOUNTING PERIOD (FISCAL YEAR OR CALENDAR YEAR, AS THE CASE MAY
BE) IN ACCORDANCE WITH THE METHOD OF ACCOUNTING REGULARLY EMPLOYED IN
KEEPING THE BOOKS OF SUCH TAXPAYER; ...  ." 

FN5  AS OF THIS TIME, PETITIONERS' LIABILITIES WERE LISTED AS
$12,650.50. 

FN6  "Q.  IN OTHER WORDS, TO SUMMARIZE THIS WHOLE THING:  YOU HAD A
NET WORTH OF $157,000 AT JANUARY 1, 1946, WHICH CONSISTED OF $104,000
WHICH YOU HAD SINCE DECEMBER 22, 1933, AND THE BALANCE OF $9,000 IN
CURRENCY, AND YOUR INVESTMENT IN SECURITIES - OR THE VALUE OF YOUR
SECURITIES. 

"A.  YES."  (R. 303.) 

FN7  THIS COURT WILL FORMULATE RULES OF EVIDENCE AND PROCEDURE TO BE
APPLIED IN FEDERAL PROSECUTIONS WHERE IT APPEARS NECESSARY TO MAINTAIN
"PROPER STANDARDS FOR THE ENFORCEMENT OF THE FEDERAL CRIMINAL LAW IN
THE FEDERAL COURTS."  MCNABB V. UNITED STATES, 318 U.S. 332, 341. 

FN8  THE RECORD INDICATES THAT THE INCOME OF THE HOTEL AS REPORTED
FOR 1946 WAS APPROXIMATELY 12 1/2% OF THAT REPORTED BY THE PREVIOUS
OWNER IN 1945; IN 1947 THE RATIO WAS 12%; AND IN 1948 IT WAS 26%.
..END :








FRIEDBERG V. UNITED STATES 348 U.S. 142 


NO. 18.  ARGUED OCTOBER 20, 1954 - DECIDED DECEMBER 6, 1954 - 207 F.2D
777, AFFIRMED. 


PETITIONER WAS CONVICTED UNDER SEC. 145 OF THE INTERNAL REVENUE CODE
OF WILLFULLY ATTEMPTING TO EVADE HIS INCOME TAXES FOR 1945, 1946 AND
1947.  THE GOVERNMENT RELIED ON THE NET WORTH METHOD OF PROOF
CONSIDERED IN HOLLAND V. UNITED STATES, ANTE, P. 121.  PETITIONER
CONTENDED THAT, AT THE OPENING OF THE COMPUTATION PERIOD, HE HAD CASH
ON HAND "FAR IN EXCESS" OF $60,000, WHICH WAS NOT INCLUDED IN THE
GOVERNMENT'S COMPUTATION.  THE GOVERNMENT'S EVIDENCE DID NOT DIRECTLY
DISPUTE THIS; BUT IT DID TRACE PETITIONER'S FINANCES FROM 1922 THROUGH
1947 AND PRESENTED DETAILED EVIDENCE OF PETITIONER'S FINANCIAL
DIFFICULTIES, FROM WHICH THE JURY COULD READILY CONCLUDE THAT
PETITIONER HAD ACCUMULATED NO SUCH FINANCIAL RESERVE.  HELD:  THE
CONVICTION IS AFFIRMED.  PP. 143-146. 

(A)  THE GOVERNMENT'S DETAILED EVIDENCE OF PETITIONER'S FINANCIAL
DIFFICULTIES PRIOR TO THE BEGINNING OF THE COMPUTATION PERIOD AMPLY
JUSTIFIED THE JURY'S CONCLUSION THAT HE HAD ACCUMULATED NO SUCH CASH
RESERVE AS HE CLAIMED.  PP. 143-144. 

(B)  TESTIMONY OF A GOVERNMENT WITNESS, ON CROSS-EXAMINATION, THAT HE
HAD NOT INCLUDED ANY CASH ON HAND IN COMPUTING PETITIONER'S NET WORTH
AT THE BEGINNING OF THE COMPUTATION PERIOD, BECAUSE HE FOUND NO
EVIDENCE THAT PETITIONER HAD ANY CASH ON HAND, WAS NOT A MERE
CONCLUSION WHICH INVADED THE PROVINCE OF THE JURY.  PP. 144-145. 

(C)  THERE WAS NO REVERSIBLE ERROR IN THE TRIAL JUDGE'S SUPPLEMENTAL
INSTRUCTIONS TO THE JURY.  PP. 145-146. 

FRIEDBERG V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PETITIONER WAS CONVICTED OF AN ATTEMPT TO EVADE HIS FEDERAL INCOME
TAXES.  THE COURT OF APPEALS AFFIRMED.  207 F.2D 777.  THIS COURT
GRANTED CERTIORARI.  347 U.S. 1006.  AFFIRMED, P. 146. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS THE SECOND IN THE GROUP OF FOUR CASES INVOLVING INCOME TAX
PROSECUTIONS UNDER THE NET WORTH METHOD OF PROOF.  IN THIS CASE
PETITIONER WAS INDICTED FOR THE YEARS 1944 THROUGH 1947, AND CONVICTED
ON ALL COUNTS EXCEPT THE FIRST, COVERING THE YEAR 1944. 

WHILE THE DISCUSSION IN HOLLAND V. UNITED STATES, ANTE, P. 121, IS
DISPOSITIVE OF SOME OF THE MORE GENERAL PROBLEMS RAISED BY THIS TYPE OF
PROSECUTION, PETITIONER HERE DIRECTS HIS FIRE SPECIFICALLY AT THE
SUFFICIENCY OF THE EVIDENCE AS TO HIS OPENING NET WORTH.  TO HIGHLIGHT
HIS CONTENTION THAT THE GOVERNMENT HAD NOT PROPERLY ACCOUNTED FOR AN
ALLEGED HOARD OF CASH AND BONDS ON HAND AT THE BEGINNING OF THE
INDICTMENT PERIOD, PETITIONER HAS STIPULATED VIRTUALLY EVERY OTHER NET
WORTH ISSUE OUT OF THE CASE. 

ALTHOUGH PETITIONER'S TESTIMONY AS TO THIS CASH ON HAND VACILLATED,
(FN1) WE CONCLUDE FROM A CAREFUL EXAMINATION OF THE TESTIMONY THAT THE
LARGEST AMOUNT CLAIMED AT THE STARTING POINT WAS "FAR IN EXCESS" OF
$60,000.  THE GOVERNMENT'S EVIDENCE, AS IN HOLLAND, DID NOT DIRECTLY
DISPUTE THIS, BUT IT DID PAINSTAKINGLY TRACE THE FRIEDBERGS' FINANCES
FROM 1922 THROUGH THE PROSECUTION YEARS.  IT POINTED UNMISTAKABLY TO
THE CONCLUSION THAT PETITIONER HAD NO SUCH HOARD OF CASH AT THE
STARTING POINT. 

THIS EVIDENCE, BRIEFLY OUTLINED, WAS AS FOLLOWS:  PETITIONER FILED NO
TAX RETURN FOR 1922, PAID NOMINAL TAXES FOR 1923, 1924 AND 1925, AND,
EXCEPT FOR 1926, 1927, 1930, AND 1937, WHEN HE FILED NONTAXABLE
RETURNS, HE FILED NO RETURNS FROM 1926 THROUGH 1937.  HE BORROWED SMALL
SUMS OF MONEY ON THREE OCCASIONS IN 1931.  IN 1934, WHEN HE FAILED TO
PAY $30 A MONTH ON A REAL ESTATE MORTGAGE, THE MORTGAGEE BROUGHT A
FORECLOSURE SUIT AND PETITIONER WAS UNABLE TO MEET THE MODEST
COMPROMISE TERMS OFFERED HIM BY THE COURT.  IN 1936 AND 1940, LEVIES ON
A JUDGMENT FOR $13.76 WERE RETURNED NULLA BONA.  A MORTGAGE ON HIS
FORMER HOME WAS FORECLOSED IN 1937, AND A DEFICIENCY JUDGMENT ENTERED
FOR OVER $3,500.  THE WRIT OF EXECUTION WAS RETURNED "NOTHING FOUND" IN
1939, AND PETITIONER THEN SETTLED THE JUDGMENT BY PAYING $100 TO THE
MORTGAGEE IN RETURN FOR RELEASE FROM LIABILITY.  IN 1939, PETITIONER
STATED IN AN APPLICATION FOR A LOAN THAT HIS TOTAL ASSETS WERE $9,200,
INCLUDING $150 CASH ON HAND, WHILE HIS LIABILITIES WERE $500.  THE
TAILORING BUSINESS IN WHICH PETITIONER HAD WORKED SINCE 1922 FOR AN
AVERAGE PAY OF $50 A WEEK WAS DISSOLVED IN 1941 BECAUSE IT COULD NOT
MEET ITS BILLS, AND PETITIONER BOUGHT ITS ASSETS FOR $650. 

YET IT WAS DURING THESE YEARS, FROM THE 1920'S UNTIL 1941, THAT
PETITIONER CLAIMED TO HAVE ACCUMULATED "FAR IN EXCESS" OF $60,000.  WE
THINK THE JURY COULD READILY HAVE CONCLUDED THAT PETITIONER HAD SAVED
NO SUCH RESERVE. 

PETITIONER'S OTHER OBJECTIONS CAN BE DISPOSED OF QUICKLY.  FIRST, HE
CONTENDS IT WAS ERROR FOR THE SPECIAL AGENT, A WITNESS FOR THE
GOVERNMENT, TO GIVE HIS "PERSONAL OPINION" THAT PETITIONER HAD NO CASH
ON HAND AT THE STARTING POINT.  BUT THIS DISTORTS WHAT ACTUALLY
HAPPENED.  THE AGENT WAS ASKED ON CROSS-EXAMINATION TO GIVE A "YES OR
NO" ANSWER TO WHETHER IN HIS NET WORTH STATEMENT HE HAD CREDITED
PETITIONER WITH ANY CASH ON HAND FOR 1941.  THE AGENT SAID "THERE WAS
NO EVIDENCE AVAILABLE TO SHOW THERE WAS CASH."  AFTER DEFENSE COUNSEL'S
INSISTENCE THAT THE WITNESS ANSWER "DID YOU OR DIDN'T YOU" GIVE CREDIT
FOR ANY CASH, THE COURT ALLOWED THE AGENT TO EXPLAIN HIS ANSWER.  HE
EXPLAINED THAT HIS INVESTIGATION DISCLOSED NO EVIDENCE WHICH WOULD
PERMIT HIM TO CREDIT PETITIONER WITH CASH ON HAND IN 1941 AND ON
REDIRECT EXAMINATION HE ELABORATED, POINTING OUT THE FORECLOSURES AND
THE OTHER EVIDENCE WHICH HAS BEEN DETAILED ABOVE.  FROM THIS, HE SAID,
HE "COULD SEE NO REASON WHY HE SHOULD  ...  INCLUDE" ANY CASH ON HAND
AT THE STARTING POINT. 

THIS WAS HARDLY A "CONCLUSION OF THE WITNESS," WHICH IS AN "ULTIMATE
ISSUE TO BE DECIDED BY THE JURY," AS PETITIONER CLAIMS.  THE AGENT,
UPON PETITIONER'S INSISTENCE, WAS TESTIFYING TO A NEGATIVE FACT: HE HAD
NOT INCLUDED CASH BECAUSE HE HAD FOUND NO EVIDENCE OF CASH.  THE
EVIDENCE WHICH HE THEN SUMMARIZED ON REDIRECT WAS ONLY THAT WHICH HAD
ALREADY BEEN INTRODUCED AT THE TRIAL.  IT IS DIFFICULT TO SEE HOW HE
INVADED THE PROVINCE OF THE JURY; NOR DO WE SEE HOW PETITIONER'S
QUESTION COULD HAVE BEEN ANSWERED OTHERWISE. 

FINALLY, ERROR IS ASSERTED IN THE TRIAL JUDGE'S FINAL INSTRUCTION TO
THE JURY, WHICH WAS GIVEN SOME THREE TO FOUR HOURS AFTER IT HAD BEGUN
ITS DELIBERATIONS.  PETITIONER CONTENDS THAT THE INSTRUCTION CALLED
UPON THE JURY TO COMPROMISE THE ISSUES.  (FN2)  IT MAY BE THAT
"COMPROMISE" IN ITS LITERAL SENSE, IF USED ALONE, WOULD LEAVE IMPROPER
CONNOTATIONS.  THOUGH ITS USE HERE WAS UNFORTUNATE, WE DO NOT THINK IT
MISLED THE JURY.  WE NOTE THAT NO OBJECTION WAS MADE TO ANY OF THE
INSTRUCTIONS, NOR WAS ANY OF PETITIONER'S ORAL ARGUMENT DEVOTED TO THEM
A WEEK LATER ON MOTION FOR A NEW TRIAL.  IN FACT, PETITIONER
SPECIFICALLY DISCLAIMED ANY INTENT TO MAKE THE INSTRUCTION NOW ATTACKED
A GROUND FOR A NEW TRIAL.  THIS IS PERSUASIVE EVIDENCE THAT HE DID NOT
ORIGINALLY CONSIDER THIS SECTION OF THE CHARGE PREJUDICIAL; AND SINCE
THE REMAINING INSTRUCTIONS WERE FAIR AND NEGATIVED ANY INFERENCE THAT A
COMPROMISE VERDICT WAS PERMISSIBLE, WE ARE INCLINED TO AGREE.  IN THE
FACE OF THIS RECORD, WE CAN HARDLY CONCLUDE THAT THIS ERROR IS
SUFFICIENT GROUND FOR REVERSAL.  AFFIRMED. 

FN1  BOTH FRIEDBERG AND HIS WIFE TESTIFIED THAT HE HAD "FAR IN
EXCESS" OF $50,000 BY 1936; AT ANOTHER POINT HE SWORE HE HAD BETWEEN
$50,000 AND $100,000 BY THAT TIME; BY 1938 HE CLAIMED "FAR IN EXCESS"
OF $60,000; AND FINALLY, HE STATED THAT HE HAD "SUBSTANTIALLY" $100,000
BY 1947. 

FN2  THE INSTRUCTION WAS: 

"THE COURT WILL STAND IN RECESS UNTIL ONE-THIRTY.  THE COURT MAY SAY
TO THE JURY AT THIS TIME THAT I WANT YOU TO MAKE AN HONEST AND SINCERE
EFFORT TO REACH AN AGREEMENT AS TO THE MERITS OF THIS CASE.   I DO NOT
WANT YOU TO SHIRK YOUR DUTY.  I WANT YOU TO BE FAIR TO THE GOVERNMENT,
THE UNITED STATES, AND THE DEFENDANT.  NEVERTHELESS, THIS CASE HAS
TAKEN MANY DAYS TO TRY, AND I HOPE YOU WILL MAKE A SINCERE EFFORT TO
COMPROMISE AND ADJUST YOUR DIFFERENCES AND REACH A VERDICT, IF
POSSIBLE." 
..END :












SMITH V. UNITED STATES 348 U.S. 147 


NO. 52.  ARGUED OCTOBER 21-22, 1954 - DECIDED DECEMBER 6, 1954 - 210
F.2D 496, AFFIRMED. 


PETITIONER WAS CONVICTED UNDER SEC. 145 OF THE INTERNAL REVENUE CODE
OF WILLFUL ATTEMPTS TO EVADE HIS INCOME TAXES FOR 1946 THROUGH 1949. 
IN ADDITION TO THE NET WORTH METHOD OF PROOF CONSIDERED IN HOLLAND V.
UNITED STATES, ANTE, P. 121, THE GOVERNMENT RELIED ON AN EXTRAJUDICIAL
WRITTEN NET WORTH STATEMENT SIGNED BY PETITIONER AND DELIVERED TO
GOVERNMENT AGENTS, PLUS INDEPENDENT EVIDENCE OF PETITIONER'S
EXPENDITURES, SAVINGS AND INVESTMENTS.  PETITIONER CONTENDED (A) THAT
HIS EXTRAJUDICIAL STATEMENT WAS NOT SUFFICIENTLY CORROBORATED BY OTHER
EVIDENCE, AND (B) THAT IT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE
BECAUSE IT WAS PROCURED PURSUANT TO AN UNDERSTANDING WITH A GOVERNMENT
AGENT THAT THE CASE WOULD BE CLOSED AND PETITIONER GRANTED IMMUNITY. 
AT A PRETRIAL HEARING, THE TRIAL JUDGE DENIED A MOTION TO SUPPRESS THIS
STATEMENT AS EVIDENCE.  AT THE TRIAL, HE REFUSED TO HOLD A HEARING
OUTSIDE THE PRESENCE OF THE JURY TO DETERMINE PRELIMINARILY THE
ADMISSIBILITY OF THE STATEMENT, AND HE SUBMITTED THE ISSUE TO THE JURY
WITH INSTRUCTIONS THAT THEY SHOULD REJECT THE STATEMENT AND ALL
EVIDENCE OBTAINED THROUGH IT, IF "TRICKERY, FRAUD OR DECEIT" WERE
PRACTICED ON PETITIONER OR HIS ACCOUNTANT.  HELD:  THE CONVICTION IS
AFFIRMED.  PP. 149-159. 

1.  THE ISSUE OF FRAUD OR DECEIT ON THE PART OF THE GOVERNMENT AGENT
WAS PROPERLY SUBMITTED TO THE JURY, AND THE JURY, IN ARRIVING AT ITS
GENERAL VERDICT, COULD HAVE FOUND FROM THE CONFLICTING EVIDENCE THAT NO
FRAUDULENT INDUCEMENTS HAD BEEN OFFERED PETITIONER OR HIS ACCOUNTANT. 
PP. 150-151. 

2.  DENIAL OF A VOIR DIRE DURING THE TRIAL, ON THE ISSUE OF FRAUD OR
DECEIT ON THE PART OF THE GOVERNMENT AGENT, DID NOT DEPRIVE PETITIONER
OF ANY SUBSTANTIAL RIGHT.  THE TRIAL JUDGE HAD ALREADY HELD A HEARING
ON THIS ISSUE IN PASSING ON THE PRETRIAL MOTION TO SUPPRESS EVIDENCE,
THE ONLY EVIDENCE OFFERED IN SEEKING A VOIR DIRE DURING THE TRIAL WAS
THAT WHICH HAD BEEN HEARD IN THE PRETRIAL HEARING, AND THAT EVIDENCE
WAS NARRATED AGAIN TO JUDGE AND JURY AFTER THE VOIR DIRE HAD BEEN
DENIED.  P. 151. 

3.  THERE WAS SUFFICIENT INDEPENDENT EVIDENCE TO CORROBORATE
PETITIONER'S EXTRAJUDICIAL ADMISSION THAT HE DID NOT HAVE SUFFICIENT
ASSETS AT THE BEGINNING OF THE COMPUTATION PERIOD TO ACCOUNT FOR THE
INCREASES IN NET WORTH ATTRIBUTED TO HIM.  PP. 151-159. 

(A)  THE REQUIREMENT OF CORROBORATION OF EXTRAJUDICIAL CONFESSIONS IS
APPLICABLE TO THE CRIME OF TAX EVASION.  PP. 153-154. 

(B)  THE RULE REQUIRING CORROBORATION OF EXTRAJUDICIAL CONFESSIONS IS
APPLICABLE TO THE STATEMENT INVOLVED IN THIS CASE, WHICH, THOUGH NOT A
CONFESSION ADMITTING ALL OF THE ELEMENTS OF THE OFFENSE, WAS MADE AFTER
THE FACT TO AN OFFICIAL CHARGED WITH INVESTIGATING THE POSSIBILITY OF
WRONGDOING AND WHICH EMBRACED AN ELEMENT VITAL TO THE GOVERNMENT'S
CASE.  PP. 154-156. 

(C)  CORROBORATION IS NECESSARY FOR ALL ELEMENTS OF THE OFFENSE
ESTABLISHED BY ADMISSIONS ALONE; BUT IT IS SUFFICIENT IF THE
CORROBORATION MERELY FORTIFIES THE TRUTH OF THE ADMISSION, WITHOUT
INDEPENDENTLY ESTABLISHING THE CRIME CHARGED.  P. 156. 

(D)  ALL ELEMENTS OF THE OFFENSE MUST BE ESTABLISHED BY INDEPENDENT
EVIDENCE OR CORROBORATED ADMISSIONS; BUT ONE AVAILABLE MODE OF
CORROBORATION IS FOR THE INDEPENDENT EVIDENCE TO BOLSTER THE CONFESSION
ITSELF AND THEREBY PROVE THE OFFENSE THROUGH THE STATEMENTS OF THE
ACCUSED.  P. 156. 

(E)  THE GOVERNMENT MAY PROVIDE THE NECESSARY CORROBORATION BY
INTRODUCING SUBSTANTIAL EVIDENCE, APART FROM THE TAXPAYER'S ADMISSIONS,
TENDING TO SHOW THAT HE WILLFULLY UNDERSTATED HIS TAXABLE INCOME.  P.
157. 

(F)  THIS MAY BE ACCOMPLISHED BY SUBSTANTIATING THE OPENING NET WORTH
COMPUTATION DIRECTLY, SINCE THAT FIGURE, TOGETHER WITH THE REMAINDER OF
THE NET WORTH COMPUTATION, AMPLY ESTABLISHES A CONSISTENT
UNDERSTATEMENT BY PETITIONER OF HIS TAXABLE INCOME; AND FROM THIS THE
JURY COULD INFER WILLFULNESS.  P. 157. 

(G)  IN THIS CASE, PETITIONER'S TAX RETURNS ADEQUATELY CORROBORATED
HIS EXTRAJUDICIAL STATEMENTS AS TO HIS FINANCIAL HISTORY, AND THE TWO
TOGETHER CORROBORATED THE GOVERNMENT'S COMPUTATION OF HIS NET WORTH. 
PP. 157-158. 

(H)  PETITIONER'S EXTRAJUDICIAL STATEMENTS WERE FURTHER CORROBORATED
BY INDEPENDENT EVIDENCE SHOWING SUBSTANTIAL EXPENDITURES, SAVINGS AND
INVESTMENTS DURING THE PERIOD INVOLVED.  PP. 158-159. 

SMITH V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS THE THIRD OF THE NET WORTH CASES AND THE FIRST DEALING WITH
THE GOVERNMENT'S USE OF EXTRAJUDICIAL STATEMENTS MADE BY THE ACCUSED. 
PETITIONER AND HIS WIFE WERE JOINTLY TRIED ON FIVE COUNTS CHARGING THEM
WITH WILLFUL ATTEMPTS TO EVADE AND DEFEAT THEIR INCOME TAXES FOR THE
YEARS 1946 THROUGH 1950.  A MOTION FOR ACQUITTAL WAS GRANTED AS TO THE
WIFE ON ALL FIVE COUNTS, AND AS TO PETITIONER ON THE FIFTH COUNT (FOR
THE YEAR 1950).  THE JURY FOUND PETITIONER GUILTY ON THE FIRST FOUR
COUNTS, AND THE CONVICTION WAS AFFIRMED BY THE COURT OF APPEALS.  210
F.2D 496.  WE GRANTED CERTIORARI IN ORDER TO PASS ON THE ISSUES RAISED
BY THE PROSECUTION'S USE OF DEFENDANT'S EXTRAJUDICIAL STATEMENTS.  347
U.S. 1010. 

THE GOVERNMENT'S THEORY WAS THAT THE INCREASES IN THE NET WORTH OF
PETITIONER AND HIS WIFE EXCEEDED THEIR REPORTED INCOME FOR EACH OF THE
PROSECUTION YEARS, AND THAT THESE INCREMENTS REPRESENTED TAXABLE
INCOME.  THE EVIDENCE TENDED TO SHOW THAT PETITIONER AND HIS WIFE WERE
PERSONS OF MODERATE MEANS PRIOR TO 1945, AND THAT TOWARD THE END OF
THAT YEAR PETITIONER ACQUIRED A RACING-NEWS SERVICE.  IN THE FOUR
SUCCEEDING YEARS, THE PROSECUTION YEARS HERE IN ISSUE, PETITIONER AND
HIS WIFE ACQUIRED A LARGE AMOUNT OF VISIBLE WEALTH IN THE FORM OF BANK
ACCOUNTS, REAL ESTATE, SECURITIES, AND OTHER ASSETS.  THE EVIDENCE,
TAKEN AS A WHOLE, TENDED TO PROVE THAT PETITIONER AND HIS WIFE HAD
UNDERSTATED THEIR INCOME FOR THE FOUR-YEAR PERIOD BY OVER $190,000. 

THE ISSUES IN THIS CASE STEM FROM A STATEMENT SIGNED BY THE
PETITIONER AND DELIVERED TO THE GOVERNMENT AGENTS ALONG WITH A CHECK,
THE LATTER SUPPOSEDLY REPRESENTING THE AMOUNT OF TAX HE THOUGHT DUE AND
OWING.  (FN1)  THE STATEMENT, A FIVE-PAGE DOCUMENT, INCLUDED TABLES ON
PETITIONER'S SECURITIES, PRIOR TAX RETURNS, LIVING EXPENSES, AND A
LISTING OF PETITIONER'S ASSETS FOR EACH OF THE YEARS 1945 THROUGH 1949,
SHOWING CHANGES IN HIS NET WORTH OVER THE PROSECUTION PERIOD.  WHILE
EACH OF THE PAGES WAS HEADED BY THE NAMES OF PETITIONER AND HIS WIFE,
THE STATEMENT WAS SIGNED ONLY BY THE PETITIONER.  HIS SIGNATURE
APPEARED AFTER A CLAUSE DESCRIBING THE LISTING OF ASSETS AS "MY TRUE
NET WORTH FOR THE PERIOD COVERED HEREIN." 

ADMISSIBILITY OF THE STATEMENT. 

PETITIONER CONTENDS THAT HIS NET WORTH STATEMENT SHOULD NOT HAVE BEEN
ADMITTED IN EVIDENCE BECAUSE IT WAS PROCURED PURSUANT TO AN
UNDERSTANDING BETWEEN PETITIONER AND A GOVERNMENT AGENT THAT THE CASE
WOULD BE CLOSED AND THE PETITIONER GRANTED IMMUNITY.  SEE WAN V. UNITED
STATES, 266 U.S. 1, 14; BRAM V. UNITED STATES, 168 U.S. 532, 542-543;
WILSON V. UNITED STATES, 162 U.S. 613, 622-623; SPARF AND HANSEN V.
UNITED STATES, 156 U.S. 51, 55.  PETITIONER'S ACCOUNTANT, WHO CARRIED
ON NEGOTIATIONS WITH THIS GOVERNMENT AGENT, TESTIFIED THAT THE AGENT
HAD PROMISED TO CLOSE THE CASE IF THE NET WORTH STATEMENT AND A CHECK
TO COVER THE TAX DEFICIENCY WERE FORTHCOMING, AND THAT HE, THE
ACCOUNTANT, WOULD NEVER HAVE SUBMITTED THE STATEMENT HAD HE NOT
BELIEVED THAT THE CASE WOULD BE CLOSED ON THIS BASIS.  THE GOVERNMENT
AGENT TESTIFIED THAT HE WAS AWARE OF NO SUCH UNDERSTANDING AND THAT HE
HAD MADE NO PROMISES TO CLOSE THE CASE.  AFTER A PRETRIAL HEARING ON
PETITIONER'S MOTION TO SUPPRESS EVIDENCE, THE TRIAL JUDGE REFUSED TO
SUPPRESS THE NET WORTH STATEMENT.  DURING THE COURSE OF THE TRIAL, HE
REFUSED TO HOLD A HEARING OUTSIDE THE PRESENCE OF THE JURY TO DETERMINE
PRELIMINARILY THE STATEMENT'S ADMISSIBILITY.  HE SUBMITTED THE ISSUE TO
THE JURY WITH THE INSTRUCTION THAT THEY WERE TO REJECT THE STATEMENT,
AND ALL EVIDENCE OBTAINED THROUGH IT, IF "TRICKERY, FRAUD OR DECEIT"
WERE PRACTICED ON PETITIONER OR HIS ACCOUNTANT. 

THE ISSUE OF FRAUD OR DECEIT ON THE PART OF THE GOVERNMENT AGENT WAS
PROPERLY SUBMITTED TO THE JURY, AND THE JURY, IN ARRIVING AT ITS
GENERAL VERDICT, COULD HAVE FOUND FROM THE CONFLICTING EVIDENCE THAT NO
FRAUDULENT INDUCEMENT HAD BEEN OFFERED PETITIONER OR HIS ACCOUNTANT. 
PETITIONER CANNOT COMPLAIN THAT HE WAS DENIED A VOIR DIRE, CF. UNITED
STATES V. CARIGNAN, 342 U.S. 36, SINCE THE TRIAL JUDGE HAD ALREADY HELD
A HEARING ON THIS ISSUE IN PASSING ON THE PRETRIAL MOTION TO SUPPRESS
EVIDENCE.  MOREOVER, THE ONLY EVIDENCE OFFERED BY PETITIONER IN SEEKING
THIS HEARING DURING THE TRIAL WAS THE TESTIMONY OF PETITIONER'S
ACCOUNTANT, EVIDENCE WHICH HAD BEEN HEARD IN THE PRETRIAL HEARING AND
WAS NARRATED AGAIN TO JUDGE AND JURY AFTER THE VOIR DIRE HAD BEEN
DENIED.  UNDER THESE CIRCUMSTANCES, IT CANNOT BE SAID THAT THE REFUSAL
TO HOLD A PRELIMINARY HEARING DEPRIVED PETITIONER OF ANY SUBSTANTIAL
RIGHT. 

CORROBORATION OF PETITIONER'S STATEMENT. 

PETITIONER'S SECOND MAJOR OBJECTION IS THAT HIS NET WORTH STATEMENT,
AS IT RELATED TO HIS OPENING NET WORTH, WAS NOT CORROBORATED - OR WAS
INSUFFICIENTLY CORROBORATED - BY INDEPENDENT EVIDENCE.  PETITIONER'S
STATEMENT LISTED HIS OPENING NET WORTH AS FOLLOWS: 

BANK ACCOUNT    $1,079.60 

RESIDENCE       12,000.00 

AUTOMOBILE       2,000.00 

TOTAL ASSETS   $15,079.60 

THE GOVERNMENT AGENTS CREDITED PETITIONER WITH A HIGHER OPENING NET
WORTH: 

CASH IN BANKS           $8,058.58 

DRUG STORE PARTNERSHIP   5,618.39 

REAL ESTATE             18,600.00 

FURNITURE                2,000.00 

AUTOMOBILE        2,000.00 

TOTAL                  $36,276.97 

IN DETERMINING THESE OPENING NET WORTH FIGURES, THE GOVERNMENT AGENTS
RELIED IN PART ON FIGURES FURNISHED BY PETITIONER IN HIS NET WORTH
STATEMENT AND IN OTHER OF HIS EXTRAJUDICIAL ADMISSIONS - FOR THE AUTOS,
THE FURNITURE, AND ONE PARCEL OF REAL ESTATE.  ANY VARIATION IN THESE
FIGURES WOULD NOT MATERIALLY AFFECT THE RESULT.  (FN2)  BUT PETITIONER
FURTHER COMPLAINS THAT THE GOVERNMENT DID NOT CORROBORATE THE NEGATIVE
IMPLICATIONS OF HIS NET WORTH STATEMENT, THAT HE DID NOT HAVE AT THE
END OF 1945 ANY SUBSTANTIAL ASSETS - FOR EXAMPLE, CASH ON HAND - WHICH
WERE NOT REFLECTED IN HIS OR THE GOVERNMENT'S NET WORTH COMPUTATION. 
THE QUESTION PRESENTED, THEREFORE, IS WHETHER THERE IS SUFFICIENT
INDEPENDENT EVIDENCE TO CORROBORATE PETITIONER'S EXTRAJUDICIAL
ADMISSION THAT HE DID NOT HAVE SUFFICIENT ASSETS AT THE STARTING POINT
TO ACCOUNT FOR THE INCREASES IN NET WORTH ATTRIBUTED TO HIM IN THE
PROSECUTION YEARS. 

THE GENERAL RULE THAT AN ACCUSED MAY NOT BE CONVICTED ON HIS OWN
UNCORROBORATED CONFESSION HAS PREVIOUSLY BEEN RECOGNIZED BY THIS COURT,
WARSZOWER V. UNITED STATES, 312 U.S. 342; ISAACS V. UNITED STATES, 159
U.S. 487; CF. MILES V. UNITED STATES, 103 U.S. 304, 311-312, AND HAS
BEEN CONSISTENTLY APPLIED IN THE LOWER FEDERAL COURTS AND IN THE
OVERWHELMING MAJORITY OF STATE COURTS, 127 A.L.R. 1130; 7 WIGMORE,
EVIDENCE, SECS. 2070-2072.  ITS PURPOSE IS TO PREVENT "ERRORS IN
CONVICTIONS BASED UPON UNTRUE CONFESSIONS ALONE," WARSZOWER V. UNITED
STATES, SUPRA, AT 347; ITS FOUNDATION LIES IN A LONG HISTORY OF
JUDICIAL EXPERIENCE WITH CONFESSIONS AND IN THE REALIZATION THAT SOUND
LAW ENFORCEMENT REQUIRES POLICE INVESTIGATIONS WHICH EXTEND BEYOND THE
WORDS OF THE ACCUSED.  CONFESSIONS MAY BE UNRELIABLE BECAUSE THEY ARE
COERCED OR INDUCED, AND ALTHOUGH SEPARATE DOCTRINES EXCLUDE INVOLUNTARY
CONFESSIONS FROM CONSIDERATION BY THE JURY, BRAM V. UNITED STATES,
SUPRA; WILSON V. UNITED STATES, SUPRA, FURTHER CAUTION IS WARRANTED
BECAUSE THE ACCUSED MAY BE UNABLE TO ESTABLISH THE INVOLUNTARY NATURE
OF HIS STATEMENTS.  MOREOVER, THOUGH A STATEMENT MAY NOT BE
"INVOLUNTARY" WITHIN THE MEANING OF THIS EXCLUSIONARY RULE, STILL ITS
RELIABILITY MAY BE SUSPECT IF IT IS EXTRACTED FROM ONE WHO IS UNDER THE
PRESSURE OF A POLICE INVESTIGATION - WHOSE WORDS MAY REFLECT THE STRAIN
AND CONFUSION ATTENDING HIS PREDICAMENT RATHER THAN A CLEAR REFLECTION
OF HIS PAST.  FINALLY, THE EXPERIENCE OF THE COURTS, THE POLICE AND THE
MEDICAL PROFESSION RECOUNTS A NUMBER OF FALSE CONFESSIONS VOLUNTARILY
MADE, NOTE, 28 IND. L.J. 374.  THESE ARE THE CONSIDERATIONS WHICH
JUSTIFY A RESTRICTION ON THE POWER OF THE JURY TO CONVICT, FOR THIS
EXPERIENCE WITH CONFESSIONS IS NOT SHARED BY THE AVERAGE JUROR. 
NEVERTHELESS, BECAUSE THIS RULE DOES INFRINGE ON THE PROVINCE OF THE
PRIMARY FINDER OF FACTS, ITS APPLICATION SHOULD BE SCRUTINIZED LEST THE
RESTRICTIONS IT IMPOSES SURPASS THE DANGERS WHICH GAVE RISE TO THEM. 

THE FIRST ISSUE IS WHETHER THE REQUIREMENT OF CORROBORATION MAY
PROPERLY BE APPLIED TO THE CRIME OF TAX EVASION.  THE CORROBORATION
RULE, AT ITS INCEPTION, SERVED AN EXTREMELY LIMITED FUNCTION.  IN ORDER
TO CONVICT OF SERIOUS CRIMES OF VIOLENCE, THEN CAPITAL OFFENSES,
INDEPENDENT PROOF WAS REQUIRED THAT SOMEONE HAD INDEED INFLICTED THE
VIOLENCE, THE SO-CALLED CORPUS DELICTI.  ONCE THE EXISTENCE OF THE
CRIME WAS ESTABLISHED, HOWEVER, THE GUILT OF THE ACCUSED COULD BE BASED
ON HIS OWN OTHERWISE UNCORROBORATED CONFESSION.  BUT IN A CRIME SUCH AS
TAX EVASION THERE IS NO TANGIBLE INJURY WHICH CAN BE ISOLATED AS A
CORPUS DELICTI.  AS TO THIS CRIME, IT CANNOT BE SHOWN THAT THE CRIME
HAS BEEN COMMITTED WITHOUT IDENTIFYING THE ACCUSED.  THUS WE ARE FACED
WITH THE CHOICE EITHER OF APPLYING THE CORROBORATION RULE TO THIS
OFFENSE AND ACCORDING THE ACCUSED EVEN GREATER PROTECTION THAN THE RULE
AFFORDS TO A DEFENDANT IN A HOMICIDE PROSECUTION, EVANS V. UNITED
STATES, 122 F.2D 461; MURRAY V. UNITED STATES, 53 APP. D.C. 119, 288 F.
1008, OR OF FINDING THE RULE WHOLLY INAPPLICABLE BECAUSE OF THE NATURE
OF THE OFFENSE, STRIPPING THE ACCUSED OF THIS GUARANTEE ALTOGETHER.  WE
CHOOSE TO APPLY THE RULE, WITH ITS BROADER GUARANTEE, TO CRIMES IN
WHICH THERE IS NO TANGIBLE CORPUS DELICTI, WHERE THE CORROBORATIVE
EVIDENCE MUST IMPLICATE THE ACCUSED IN ORDER TO SHOW THAT A CRIME HAS
BEEN COMMITTED.  SEE, E.G., TABOR V. UNITED STATES, 152 F.2D 254;
UNITED STATES V. KERTESS, 139 F.2D 923; ERCOLI V. UNITED STATES, 76
U.S. APP. D.C. 360, 131 F.2D 354; PINES V. UNITED STATES, 123 F.2D 825;
FORTE V. UNITED STATES, 68 APP. D.C. 111, 94 F.2D 236; TINGLE V. UNITED
STATES, 38 F.2D 573; WYNKOOP V. UNITED STATES, 22 F.2D 799; DAECHE V.
UNITED STATES, 250 F. 566. 

THE NEXT PROBLEM PRESENTED IS WHETHER THE STATEMENT HERE INVOLVED -
THE OPENING NET WORTH - MUST BE CORROBORATED.  ALTHOUGH THIS STATEMENT
WAS PART OF A DOCUMENT WHICH MAY HAVE ADMITTED AN UNDERSTATEMENT OF
TAXABLE INCOME, ONE OF THE ELEMENTS OF THE CRIME OF TAX EVASION, STILL
IT IS CLEAR THAT THE STATEMENT IS NOT A CONFESSION ADMITTING TO ALL THE
ELEMENTS OF THE OFFENSE.  THERE IS SOME UNCERTAINTY IN THE LOWER COURT
OPINIONS AS TO WHETHER THE CORROBORATION REQUIREMENT APPLIES TO MERE
ADMISSIONS, SEE UNITED STATES V. KERTESS, SUPRA, AT 929; ERCOLI V.
UNITED STATES, SUPRA, 76 U.S. APP. D.C., AT 362, 131 F.2D, AT 356.  BUT
SEE WARSZOWER V. UNITED STATES, SUPRA, AT 347.  WE HOLD THE RULE
APPLICABLE TO SUCH STATEMENTS, AT LEAST WHERE, AS IN THIS CASE, THE
ADMISSION IS MADE AFTER THE FACT TO AN OFFICIAL CHARGED WITH
INVESTIGATING THE POSSIBILITY OF WRONGDOING, AND THE STATEMENT EMBRACES
AN ELEMENT VITAL TO THE GOVERNMENT'S CASE.  (FN3)  CF. GULOTTA V.
UNITED STATES, 113 F.2D 683, ASSIMILATING ADMISSIONS TO CONFESSIONS BUT
FAILING TO DISTINGUISH BETWEEN ADMISSIONS BEFORE AND AFTER THE FACT AS
REQUIRED BY THE WARSZOWER CASE.  ACCORD, DUNCAN V. UNITED STATES, 68
F.2D 136; GORDNIER V. UNITED STATES, 261 F. 910. 

THE NEGATIVE IMPLICATIONS OF PETITIONER'S OPENING NET WORTH ADMISSION
FORMED THE CORNERSTONE OF THE GOVERNMENT'S THEORY OF GUILT.  WITHOUT
PROOF THAT ASSETS ON HAND AT THE BEGINNING OF THE PROSECUTION PERIOD
DID NOT ACCOUNT FOR THE ALLEGED NET WORTH INCREASES, THE GOVERNMENT
COULD NOT SUCCEED.  HOLLAND V. UNITED STATES, ANTE, P. 121.  AN
ADMISSION WHICH ASSUMES THIS IMPORTANCE IN THE PRESENTATION OF THE
PROSECUTION'S CASE SHOULD NOT GO UNCORROBORATED, AND THIS IS TRUE
WHETHER WE CONSIDER THE STATEMENT AN ADMISSION OF ONE OF THE FORMAL
"ELEMENTS" OF THE CRIME OR OF A FACT SUBSIDIARY TO THE PROOF OF THESE
"ELEMENTS."  IT IS THE PRACTICAL RELATION OF THE STATEMENT TO THE
GOVERNMENT'S CASE WHICH IS CRUCIAL, NOT ITS THEORETICAL RELATION TO THE
DEFINITION OF THE OFFENSE. 

ALTHOUGH WE ARE UNABLE TO HOLD ON THIS RECORD THAT PETITIONER'S
STATEMENT WAS INADMISSIBLE, THE EVIDENCE IS SUFFICIENT TO CAST DOUBT ON
THE ACCURACY OF HIS ADMISSIONS.  THE UNRELIABILITY OF THE STATEMENT IS
ILLUSTRATED BY THE GREAT VARIANCE BETWEEN ITS NET WORTH CALCULATION AND
THE GOVERNMENT'S COMPUTATION, ALTHOUGH PETITIONER'S CONSISTENT ERRING
IN HIS OWN FAVOR MADE IT NOT UNREASONABLE FOR THE GOVERNMENT TO HOLD
HIM TO HIS WORD WHERE IT WAS TO THE GOVERNMENT'S ADVANTAGE.  ON THE
WHOLE, THE STATEMENT IS ONE WHICH SHOULD BE CAREFULLY SCRUTINIZED IN
THE LIGHT OF THE AVAILABLE INDEPENDENT EVIDENCE. 

THERE HAS BEEN CONSIDERABLE DEBATE CONCERNING THE QUANTUM OF
CORROBORATION NECESSARY TO SUBSTANTIATE THE EXISTENCE OF THE CRIME
CHARGED.  IT IS AGREED THAT THE CORROBORATIVE EVIDENCE DOES NOT HAVE TO
PROVE THE OFFENSE BEYOND A REASONABLE DOUBT, OR EVEN BY A
PREPONDERANCE, AS LONG AS THERE IS SUBSTANTIAL INDEPENDENT EVIDENCE
THAT THE OFFENSE HAS BEEN COMMITTED, AND THE EVIDENCE AS A WHOLE PROVES
BEYOND A REASONABLE DOUBT THAT DEFENDANT IS GUILTY.  GREGG V. UNITED
STATES, 113 F.2D 687; JORDAN V. UNITED STATES, 60 F.2D 4; FORTE V.
UNITED STATES, SUPRA; DAECHE V. UNITED STATES, SUPRA.  BUT CF. UNITED
STATES V. FENWICK, 177 F.2D 488.  IN ADDITION TO DIFFERING VIEWS ON THE
SUBSTANTIALITY OF SPECIFIC INDEPENDENT EVIDENCE, THE DEBATE HAS
CENTERED LARGELY ABOUT TWO QUESTIONS:  (1) WHETHER CORROBORATION IS
NECESSARY FOR ALL ELEMENTS OF THE OFFENSE ESTABLISHED BY ADMISSIONS
ALONE, COMPARE ERCOLI V. UNITED STATES, SUPRA, AND PINES V. UNITED
STATES, SUPRA, WITH WYNKOOP V. UNITED STATES, SUPRA, AND PEARLMAN V.
UNITED STATES, 10 F.2D 460, AND (2) WHETHER IT IS SUFFICIENT IF THE
CORROBORATION MERELY FORTIFIES THE TRUTH OF THE CONFESSION, WITHOUT
INDEPENDENTLY ESTABLISHING THE CRIME CHARGED, COMPARE PEARLMAN V.
UNITED STATES, SUPRA, AND DAECHE V. UNITED STATES, SUPRA, WITH PINES V.
UNITED STATES, SUPRA, AND FORTE V. UNITED STATES, SUPRA.  WE ANSWER
BOTH IN THE AFFIRMATIVE.  ALL ELEMENTS OF THE OFFENSE MUST BE
ESTABLISHED BY INDEPENDENT EVIDENCE OR CORROBORATED ADMISSIONS, BUT ONE
AVAILABLE MODE OF CORROBORATION IS FOR THE INDEPENDENT EVIDENCE TO
BOLSTER THE CONFESSION ITSELF AND THEREBY PROVE THE OFFENSE "THROUGH"
THE STATEMENTS OF THE ACCUSED.   CF. PARKER V. STATE, 228 IND. 1, 88
N.E.2D 556. 

UNDER THE ABOVE STANDARD THE GOVERNMENT MAY PROVIDE THE NECESSARY
CORROBORATION BY INTRODUCING SUBSTANTIAL EVIDENCE, APART FROM
PETITIONER'S ADMISSIONS, TENDING TO SHOW THAT PETITIONER WILLFULLY
UNDERSTATED HIS TAXABLE INCOME.  THIS MAY BE ACCOMPLISHED BY
SUBSTANTIATING THE OPENING NET WORTH DIRECTLY, SINCE THAT FIGURE, TAKEN
TOGETHER WITH THE REMAINDER OF THE NET WORTH COMPUTATION, AMPLY
ESTABLISHES A CONSISTENT UNDERSTATEMENT BY PETITIONER OF HIS TAXABLE
INCOME; AND FROM THIS THE JURY COULD INFER WILLFULNESS.  TWO
SIGNIFICANT ITEMS OF EVIDENCE TEND TO SHOW THAT PETITIONER OWNED NO
ASSETS AT THE STARTING POINT IN EXCESS OF THOSE ATTRIBUTED TO HIM IN
THE GOVERNMENT'S STATEMENT.  FIRST, A GOVERNMENT OFFICIAL TESTIFIED
THAT PETITIONER HAD FILED NO INCOME TAX RETURNS IN THE YEARS 1936
THROUGH 1939, NONTAXABLE RETURNS FOR 1940 AND 1942, A NONASSESSABLE
RETURN FOR 1943, A REFUNDABLE RETURN FOR 1944, AND A TAXABLE RETURN FOR
1941.  SECOND, THE TESTIMONY OF A GOVERNMENT AGENT, TOUCHING UPON THE
ECONOMIC ACTIVITIES OF THE PETITIONER IN THE YEARS IMMEDIATELY
PRECEDING THE PROSECUTION PERIOD, DISCLOSED THAT PRIOR TO 1941
PETITIONER HAD BEEN EMPLOYED AS A MANAGER OF A RACING-NEWS SERVICE;
THAT FROM 1941 TO 1945 HE WORKED IN A PACKAGE STORE FOR $40 A WEEK; AND
THAT FOR A SHORT TIME DURING THIS LATTER PERIOD HIS WIFE WORKED AS A
HAIRDRESSER.  THE AGENT'S TESTIMONY, HOWEVER, WAS BASED SOLELY ON THE
EXTRAJUDICIAL STATEMENTS OF THE PETITIONER, AND UNDER THE STANDARD WE
HAVE ADOPTED THESE ADMISSIONS MUST BE CORROBORATED BY SUBSTANTIAL
INDEPENDENT EVIDENCE.  (FN4) THE TAX RETURNS ADEQUATELY CORROBORATE
PETITIONER'S STATEMENTS AS TO HIS FINANCIAL HISTORY, AND WE HOLD THAT
THE TWO TOGETHER CORROBORATE THE OPENING NET WORTH.  THE JURY COULD
FIND FROM THIS EVIDENCE THAT PETITIONER'S RESOURCES PRIOR TO THE
PROSECUTION YEARS WERE SUCH THAT HE COULD NOT HAVE AMASSED A GREATER
STORE OF WEALTH THAN THE AMOUNT CREDITED TO HIM IN THE GOVERNMENT'S NET
WORTH STATEMENT.  THIS PROOF IS BUTTRESSED SOMEWHAT BY INDEPENDENT
EVIDENCE THAT PETITIONER HAD BOUGHT A MODEST HOME IN 1943 FOR $9,600,
PAYING LESS THAN ONE-THIRD IN CASH AND THE BALANCE IN INSTALLMENTS, AND
BY THE FACT THAT PETITIONER'S WIFE, WHO HELD THE BULK OF THE FAMILY'S
ASSETS IN HER NAME, WAS A HOUSEWIFE THROUGH ALMOST ALL OF THE
PREPROSECUTION YEARS WITH NO SIGNIFICANT INDEPENDENT SOURCES OF
INCOME. 

BUT SUBSTANTIATING THE OPENING NET WORTH IS JUST ONE METHOD OF
CORROBORATING THESE EXTRAJUDICIAL STATEMENTS.  PETITIONER'S ADMISSIONS
MAY ALSO BE CORROBORATED BY AN ENTIRELY DIFFERENT LINE OF PROOF - BY
INDEPENDENT EVIDENCE CONCERNING PETITIONER'S CONDUCT DURING THE
PROSECUTION PERIOD, WHICH TENDS TO ESTABLISH THE CRIME OF TAX EVASION
WITHOUT RESORT TO THE NET WORTH COMPUTATIONS.  THE GOVERNMENT'S
EVIDENCE SHOWED THAT COINCIDENT WITH PETITIONER'S OPENING OF THE RACING
NEWS SERVICE, IN WHICH HE KEPT NO RECORDS, PETITIONER AND HIS WIFE
OPENED 9 NEW BANK ACCOUNTS, MAKING THEIR OVER-ALL TOTAL 14 ACCOUNTS IN
12 BANKS; THAT THE MONEY IN THESE ACCOUNTS, WHICH AMOUNTED TO ONLY
$8,000 AT THE BEGINNING OF THE PROSECUTION PERIOD, VARIED BETWEEN
$42,000 AND $80,000 DURING THE PROSECUTION YEARS; THAT BROKERAGE
ACCOUNTS, OPENED BY PETITIONER AND HIS WIFE IN 1947 AND 1948
RESPECTIVELY, WERE WORTH $9,000 IN 1947 AND OVER $41,000 IN 1948 AND
1949; THAT PETITIONER AND HIS WIFE MADE NEW INVESTMENTS IN REALTY
DURING THE PROSECUTION PERIOD, ABOUT $2,000 IN 1946, OVER $14,000 IN
1948, AND $35,000 IN 1949; THAT OTHER SUBSTANTIAL EXPENDITURES WERE
MADE DURING THE PROSECUTION YEARS, $3,750 IN U.S. SAVINGS BONDS IN
1946, A TOTAL INVESTMENT OF $4,768 IN NEW CARS IN 1947 AND 1948, AND A
$37,000 ANNUITY PAYMENT AND $3,750 MINK COAT IN 1949.  DURING THESE
SAME YEARS PETITIONER'S DECLARED INCOME EXCEEDED HIS LIVING EXPENSES BY
LESS THAN $3,000.  THESE SUBSTANTIAL EXPENDITURES, SAVINGS AND
INVESTMENTS MIGHT NOT, OF THEMSELVES, SUFFICE TO SUPPORT A CONVICTION
OF TAX EVASION WITHOUT EVIDENCE OF A STARTING POINT INDICATING A LACK
OF FUNDS FROM WHICH THESE PAYMENTS MIGHT HAVE COME.  BUT THIS CONDUCT
DOES CORROBORATE THE NET WORTH STATEMENT BY TENDING TO SHOW THAT THE
PETITIONER WAS UNDERSTATING HIS INCOME DURING THE PROSECUTION YEARS. 
WE CANNOT SAY THAT THERE IS SO LITTLE RELATION BETWEEN EXPENDITURES AND
INCOME THAT THE GOVERNMENT'S PROOF OF EXPENDITURES FAR IN EXCESS OF
REPORTED INCOME, COUPLED WITH PROOF OF A BUSINESS PRODUCING UNRECORDED
AMOUNTS OF INCOME, FAILS TO CORROBORATE THE CHARGE THAT PETITIONER'S
EARNINGS DURING THE PROSECUTION YEARS EXCEEDED HIS DECLARED INCOME. 

WE HOLD THAT UNDER EITHER OF THESE TWO LINES OF PROOF SUFFICIENT
CORROBORATION WAS SHOWN TO PERMIT THE CASE TO GO TO THE JURY.  THE
CIRCUMSTANCES LEADING UP TO PETITIONER'S STATEMENT, AND THE FAILURE OF
THE FACTS SHOWN THEREIN TO MESH WITH THE OTHER EVIDENCE ADDUCED BY THE
GOVERNMENT, IMPOSED ON THE TRIAL JUDGE AND THE REVIEWING COURTS A DUTY
OF CAREFUL SCRUTINY.  NEVERTHELESS, THE INDEPENDENT EVIDENCE WAS STRONG
ENOUGH, WE BELIEVE, TO OVERCOME THESE INDICIA OF UNRELIABILITY, AND WE
ACCORDINGLY AFFIRM. 

FN1  ALTHOUGH THERE HAD PREVIOUSLY BEEN DISCUSSION OF A CIVIL FRAUD
PENALTY, THIS CHECK WAS APPARENTLY MEANT TO COVER ONLY THE TAX
LIABILITY PROPER. 

FN2  THE GOVERNMENT ALSO RELIED ON PETITIONER'S ADMISSIONS IN
ESTABLISHING HIS LIVING EXPENSES DURING THE PROSECUTION YEARS.  BUT
THESE DO NOT BEAR ON OPENING NET WORTH AND ARE THEREFORE NOT FAIRLY
WITHIN THE QUESTION PRESENTED.  MOREOVER, THE VARIATION POSSIBLE IN
THESE FIGURES IS TOO SLIGHT TO AFFECT THE RESULT IN ANY SIGNIFICANT
RESPECT. 

FN3  ADMISSIONS GIVEN UNDER SPECIAL CIRCUMSTANCES, PROVIDING GROUNDS
FOR A STRONG INFERENCE OF RELIABILITY, MAY NOT HAVE TO BE
CORROBORATED.  CF. MILES V. UNITED STATES, SUPRA; STATE V. SALTZMAN,
241 IOWA 1373, 44 N.W.2D 24. 

FN4  THEY WERE MADE TO OFFICIALS AFTER THE OFFENSE HAD BEEN
COMMITTED.  IT MAY BE QUESTIONED, THOUGH, WHETHER THESE ADMISSIONS WERE
AS BASIC TO THE GOVERNMENT'S CASE AS THE STATEMENTS CONCERNING OPENING
NET WORTH, AND WHETHER THEY SHOULD THEREFORE BE EXEMPTED FROM THE
REQUIREMENT OF CORROBORATION.  BUT WHERE A FACT IS SUFFICIENTLY
IMPORTANT THAT THE GOVERNMENT ADDUCES EXTRAJUDICIAL STATEMENTS OF THE
ACCUSED BEARING ON ITS EXISTENCE, AND THEN RELIES ON ITS EXISTENCE TO
SUSTAIN THE DEFENDANT'S CONVICTION, THERE IS NEED FOR CORROBORATION. 
CF. UNITED STATES V. KERTESS, SUPRA, AT 930. 
..END :




UNITED STATES V. CALDERON 348 U.S. 160 


NO. 25.  ARGUED OCTOBER 21, 1954 - DECIDED DECEMBER 6, 1954 - 207 F.2D
377, REVERSED. 


RESPONDENT WAS CONVICTED UNDER SEC. 145 OF THE INTERNAL REVENUE CODE
OF WILLFUL ATTEMPTS TO EVADE FEDERAL INCOME TAXES FOR 1946 THROUGH
1949.  THE GOVERNMENT RELIED PRIMARILY UPON A "NET WORTH" COMPUTATION. 
(SEE HOLLAND V. UNITED STATES, ANTE, P. 121.)  AS TO THE "CASH ON HAND"
IN THE OPENING NET WORTH COMPUTATION, THE GOVERNMENT CREDITED
RESPONDENT WITH $500 ON THE BASIS OF ORAL AND WRITTEN EXTRAJUDICIAL
STATEMENTS MADE BY RESPONDENT.  CONTENDING THAT INDEPENDENT EVIDENCE OF
THE CORPUS DELICTI WAS LACKING, RESPONDENT CHALLENGED THE VALIDITY OF
HIS CONVICTION.  HELD:  THE CONVICTION IS AFFIRMED.  PP. 161-169. 

(A)  THE JURY COULD HAVE CONCLUDED, FROM THE EVIDENCE, THAT
RESPONDENT'S ORAL STATEMENT AS TO THE $500 REFERRED TO HIS TOTAL CASH
ON HAND AT THE STARTING POINT.  PP. 162-163. 

(B)  RESPONDENT'S SIGNED STATEMENT AS TO THE AMOUNT OF "CASH ON HAND"
WAS NOT INADMISSIBLE AS A MATTER OF LAW; THE WEIGHT TO BE GIVEN IT WAS
FOR THE JURY TO DETERMINE IN THE LIGHT OF ALL THE CIRCUMSTANCES.  P.
163. 

(C)  WHERE THE CIRCUMSTANCES SURROUNDING A DEFENDANT'S ADMISSIONS
CAST DOUBT ON THEIR RELIABILITY, THE TRIAL JUDGE AND REVIEWING COURTS
SHOULD EXERCISE GREAT CARE IN DETERMINING WHETHER THE ADMISSIONS WERE
CORROBORATED.  PP. 163-164. 

(D)  WHEN A DEFENDANT'S MOTION FOR ACQUITTAL HAS BEEN OVERRULED AND HE
INTRODUCES EVIDENCE IN HIS OWN BEHALF, THE REVIEWING COURTS MAY SEEK
CORROBORATIVE EVIDENCE IN THE PROOF OF BOTH PARTIES.  P. 164. 

(E)  IN THIS CASE, THERE WAS NOT SUFFICIENT EVIDENCE OF THE
TAXPAYER'S FINANCIAL HISTORY TO SUBSTANTIATE DIRECTLY THE GOVERNMENT'S
OPENING NET WORTH COMPUTATION.  PP. 164-165. 

(F)  UNCORROBORATED ADMISSIONS OF A TAXPAYER REGARDING HIS TAX
RETURNS FOR EARLIER YEARS CANNOT SERVE TO CORROBORATE HIS OTHER
ADMISSIONS.  P. 165. 

(G)  THE FINANCIAL HISTORY OF RESPONDENT AND HIS BUSINESS DURING THE
PROSECUTION YEARS PROVIDED SUFFICIENT INDEPENDENT EVIDENCE OF THE CRIME
OF TAX EVASION TO CORROBORATE HIS STATEMENTS CONCERNING CASH ON HAND. 
PP. 165-167. 

(H)  RESPONDENT'S EXTRAJUDICIAL STATEMENTS CONCERNING CASH ON HAND
WERE CORROBORATED ALSO BY HIS TESTIMONY AT THE TRIAL, WHICH, TAKEN
TOGETHER WITH THAT PART OF THE NET WORTH STATEMENT THAT WAS STIPULATED
OR INDEPENDENTLY PROVED, ESTABLISHED A $30,000 DEFICIENCY IN REPORTED
INCOME.  P. 167. 

(I)  WHILE THE EVIDENCE AS A WHOLE MUST SHOW A DEFICIENCY FOR EACH OF
THE PROSECUTION YEARS, THE CORROBORATIVE EVIDENCE SUFFICES IF IT SHOWS
A SUBSTANTIAL DEFICIENCY FOR THE OVER-ALL PROSECUTION PERIOD.  P. 168. 

(J)  INDEPENDENT EVIDENCE THAT RESPONDENT UNDERSTATED HIS INCOME BY
$30,000 IN THE SAME FOUR-YEAR PERIOD FOR WHICH HIS EXTRAJUDICIAL
ADMISSIONS TENDED TO SHOW A $46,000 DEFICIENCY IS ADEQUATE
CORROBORATION.  P. 168. 

(K)  THE CORROBORATION RULE REQUIRES NO MORE THAN SUBSTANTIAL
EVIDENCE THAT THE CRIME OF TAX EVASION HAS BEEN COMMITTED.  P. 168. 

(L) ALTHOUGH THE EVIDENCE IN THIS CASE WAS INSUFFICIENT TO
CORROBORATE THE OPENING NET WORTH DIRECTLY, THERE WAS ADEQUATE
INDEPENDENT EVIDENCE OF TAX EVASION.  PP. 168-169. 

UNITED STATES V. CALDERON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS SIMILAR TO THE QUESTION PRESENTED IN SMITH
V. UNITED STATES, ANTE, P. 147, ON THE CORROBORATION OF RESPONDENT'S
EXTRAJUDICIAL STATEMENTS CONCERNING HIS "OPENING NET WORTH."  THE
ADMISSIBILITY OF THESE STATEMENTS IS NOT QUESTIONED. 

RESPONDENT, AN OPERATOR OF A LEGITIMATE COIN-MACHINE BUSINESS, WAS
TRIED AND CONVICTED ON FOUR COUNTS CHARGING HIM WITH WILLFUL ATTEMPTS
TO EVADE AND DEFEAT HIS OWN AND HIS WIFE'S INCOME TAXES FOR THE YEARS
1946 THROUGH 1949.  THE GOVERNMENT'S CASE RESTED PRIMARILY ON A NET
WORTH COMPUTATION, WHICH SHOWED NET WORTH INCREASES AND NONDEDUCTIBLE
EXPENDITURES OF $62,993.47 FOR THE PROSECUTION PERIOD; DURING THESE
SAME FOUR YEARS RESPONDENT DECLARED ONLY $16,775.14 INCOME.  IT WAS
STIPULATED THAT THE COMPUTATION WAS CORRECT EXCEPT AS TO THE ITEMS
"CASH ON HAND" AND "CASH IN BANK."  RESPONDENT'S BANK BALANCES WERE
PROVED BY INTRODUCING THE BANK RECORDS, AND, WITH SOME MINOR
ADJUSTMENTS, THE GOVERNMENT'S NET WORTH COMPUTATION WAS AMPLY VERIFIED
IN THIS RESPECT.  AS TO "CASH ON HAND," PARTICULARLY THE AMOUNT
CREDITED TO THE TAXPAYER AS OF THE BEGINNING OF THE PROSECUTION PERIOD,
RESPONDENT CONTENDS THAT THE ONLY EVIDENCE TENDING TO SUBSTANTIATE THE
GOVERNMENT'S FIGURES IS THE UNCORROBORATED ADMISSIONS OF THE ACCUSED. 
HE ARGUES THAT LACKING INDEPENDENT EVIDENCE OF THE CORPUS DELICTI, THE
CONVICTION CANNOT STAND.  THE COURT OF APPEALS AGREED AND REVERSED THE
JUDGMENT OF CONVICTION, OBSERVING THAT, ABSENT A STARTING ITEM SUCH AS
CASH ON HAND, "THE REMAINDER OF THE STATEMENT PROVES NOTHING."  207
F.2D 377.  WE GRANTED THE GOVERNMENT'S PETITION FOR CERTIORARI.  347
U.S. 1008. 

THE GOVERNMENT CREDITED THE RESPONDENT WITH $500 CASH ON HAND AT THE
STARTING POINT.  ONE OF THE GOVERNMENT AGENTS TESTIFIED THAT THE $500
FIGURE WAS AN APPROXIMATION BASED ON RESPONDENT'S ORAL ANSWER TO A
REQUEST THAT HE ESTIMATE HIS YEAR-END BALANCES OF CASH ON HAND. 
ACCORDING TO THE AGENT'S NOTES, RESPONDENT REPLIED THAT HE HAD
"APPROXIMATELY $500.000 CASH IN HIS POCKET.  HE BELIEVES THAT BECAUSE
IT IS HIS HABIT TO CARRY ABOUT THAT MUCH MONEY IN HIS POCKET AT ALL
TIMES."  IT WAS ADMITTED THAT THE TAXPAYER MIGHT HAVE HAD MORE THAN
THIS AMOUNT ON HAND AT CERTAIN TIMES, SINCE HE HAD FREQUENTLY MADE
DEPOSITS IN HIS BANK ACCOUNTS IN SUMS OF $1,000 AND $2,000.  IT APPEARS
THAT THE AGENT DID NOT INQUIRE INTO HOW MUCH MONEY RESPONDENT HAD IN
HIS SAFE OR HIS BUSINESS, AS OPPOSED TO THE FUNDS IN HIS POCKET,
MAINTAINING THAT HE WAS JUSTIFIED IN TREATING THE TAXPAYER'S STATEMENT
REGARDING THE $500 AS COVERING HIS TOTAL CASH ON HAND.  RESPONDENT
CONTENDED THAT THIS FIGURE FAILED TO EMBRACE A SUBSTANTIAL SUM IN
CURRENCY IN HIS SAFE AT THE STARTING DATE.  BOTH THE GOVERNMENT AND THE
RESPONDENT ADDUCED A NUMBER OF CIRCUMSTANCES IN SUPPORT OF THEIR
RESPECTIVE POSITIONS, AND IN INTERPRETING THE MEANING OF RESPONDENT'S
STATEMENT THE JURY COULD READILY HAVE FOUND THE GOVERNMENT'S
CIRCUMSTANTIAL PROOF MORE PERSUASIVE.  IN OUR VIEW, IT COULD HAVE
CONCLUDED FROM THE EVIDENCE THAT RESPONDENT'S STATEMENT AS TO THE $500
REFERRED TO HIS TOTAL CASH ON HAND AT THE STARTING POINT. 

RESPONDENT ALSO SIGNED A WRITTEN STATEMENT ADMITTING TO THE SAME
OPENING CASH ON HAND.  THIS DOCUMENT CONTAINED THE OVER-ALL NET WORTH
COMPUTATION RELIED ON BY THE GOVERNMENT AT THE TRIAL.  THE GOVERNMENT'S
EVIDENCE TENDED TO SHOW THAT IT HAD BEEN SIGNED BY THE RESPONDENT AFTER
THE USUAL WARNING AND AFTER HE AND THE AGENTS HAD WORKED OVER THE
STATEMENT, ITEM BY ITEM, FOR SOME EIGHT HOURS.  THOUGH ADMITTING THAT
BOTH HE AND HIS ACCOUNTANT HAD READ THE STATEMENT, THE RESPONDENT
SOUGHT TO PROVE THAT HE HAD NOT UNDERSTOOD THE NET WORTH COMPUTATION AS
A WHOLE OR THE INDIVIDUAL ITEM OF "CASH ON HAND"; THAT BEFORE SIGNING
THE STATEMENT HE HAD ASKED HIS ACCOUNTANT WHETHER IT WAS CORRECT,
INTENDING TO RELY ON THE LATTER'S JUDGMENT; AND THAT THE ACCOUNTANT, IN
GIVING DEFENDANT THE GO-AHEAD, HAD MERELY APPROVED THE METHOD EMPLOYED
IN COMPILING THE STATEMENT WITHOUT PASSING ON THE ACCURACY OF THE
PARTICULAR FIGURES.  AGAIN IT WAS FOR THE JURY TO CONSIDER ALL THESE
CIRCUMSTANCES IN DETERMINING THE WEIGHT TO BE GIVEN THE SIGNED
STATEMENT; WE CANNOT SAY THAT THE DOCUMENT SHOULD HAVE BEEN REJECTED AS
A MATTER OF LAW. 

BUT ALL THESE FACTORS ARE RELEVANT IN DETERMINING WHETHER THE
INDEPENDENT EVIDENCE PROVIDED ADEQUATE CORROBORATION.  AS IN SMITH V.
UNITED STATES, THE CIRCUMSTANCES SURROUNDING DEFENDANT'S ADMISSIONS
CAST SOME DOUBT ON THEIR RELIABILITY.  THE STATEMENTS WERE MADE BY A
TAXPAYER ANXIOUS TO COOPERATE WITH THE GOVERNMENT IN THE HOPE OF
LIMITING CIVIL LIABILITY AND AVOIDING CRIMINAL PROSECUTION.  THE ORAL
STATEMENT, WITH ITS "IN THE POCKET" TERMINOLOGY, IS CERTAINLY NOT
CLEAR.  AND THE GOVERNMENT'S OWN WITNESS, THE RESPONDENT'S ACCOUNTANT,
TESTIFIED THAT HE HAD NOT VERIFIED THE PARTICULAR FIGURES IN THE
WRITTEN STATEMENT WHEN IT WAS REFERRED TO HIM BY RESPONDENT.  UNDER
THESE CIRCUMSTANCES, THE TRIAL JUDGE AND REVIEWING COURTS SHOULD
EXERCISE GREAT CARE IN DETERMINING WHETHER THE STATEMENTS OF THE
ACCUSED WERE CORROBORATED.  THE REVIEWING COURTS, HOWEVER, CAN SEEK
CORROBORATIVE EVIDENCE IN THE PROOF OF BOTH PARTIES WHERE, AS IN THIS
CASE, THE DEFENDANT INTRODUCES EVIDENCE IN HIS OWN BEHALF AFTER HIS
MOTION FOR ACQUITTAL HAS BEEN OVERRULED.  CF. BOGK V. GASSERT, 149 U.S.
17.  (FN1) 

UNLIKE SMITH, THERE IS NOT SUFFICIENT EVIDENCE HERE OF THE TAXPAYER'S
FINANCIAL HISTORY TO SUBSTANTIATE DIRECTLY THE OPENING NET WORTH. 
PROOF THAT THE TAXPAYER WAS IMPOVERISHED BY THE DEPRESSION, THAT HE WAS
WORKING FOR HIS MEALS AND $8 A WEEK IN 1935, IS TOO REMOTE, ABSENT
PROOF OF THE TAXPAYER'S FINANCIAL CIRCUMSTANCES IN THE INTERVENING
YEARS.  THE RESPONDENT ENTERED THE COIN-MACHINE BUSINESS IN A MODEST
WAY IN 1935; HE DISCONTINUED HIS LOW-PAYING JOB IN 1939; AND, EXCEPT
FOR A SHORT PERIOD DURING THE WAR, HE DEVOTED HIS ENTIRE EFFORTS TO HIS
COIN-MACHINE BUSINESS UNTIL 1945, WHEN HE BEGAN TO OPERATE A CAFE AS
WELL.  THE ONLY EVIDENCE OF DEFENDANT'S FORTUNES BETWEEN 1935 AND 1946,
THE FIRST PROSECUTION YEAR, CONSISTS OF HIS TAX RETURNS FOR 1944 AND
1945 AND SOME MEAGER EVIDENCE WITH REGARD TO HIS TAX RETURNS FOR 1941,
1942 AND 1943.  THE LATTER APPARENTLY WAS OBTAINED FROM THE RESPONDENT,
AND, STANDING UNCORROBORATED, CANNOT SERVE TO CORROBORATE RESPONDENT'S
OTHER ADMISSIONS.  THE 1944 AND 1945 RETURNS SHOW NET TAXABLE INCOME OF
$4,162 AND $7,328 RESPECTIVELY, WITH GROSS RECEIPTS FROM THE COIN
MACHINES OF $9,266 AND $10,302.  THIS SKETCHY BACKGROUND CAN HARDLY
GIVE RISE TO AN INFERENCE THAT DEFENDANT HAD NO MORE CASH AT THE
STARTING DATE THAN THE GOVERNMENT GAVE HIM CREDIT FOR. 

ACCORDINGLY, WE MUST SEARCH FOR INDEPENDENT EVIDENCE WHICH WILL TEND
TO ESTABLISH THE CRIME DIRECTLY, WITHOUT RESORT TO THE NET WORTH
METHOD.  THERE ARE SEVERAL EVIDENTIARY STRANDS WHICH MERIT INSPECTION,
THE FIRST OF WHICH IS VERY SIMILAR TO ONE EMPLOYED IN SMITH.  WE HELD
THERE THAN AN INFERENCE OF TAX EVASION COULD BE BASED ON THE FACT THAT
THE TAXPAYER'S VISIBLE ASSETS GREATLY INCREASED AT A TIME WHEN HE WAS
RECEIVING UNRECORDED AMOUNTS OF TAXABLE INCOME.  IN SMITH V. UNITED
STATES, THE TAXPAYER KEPT NO RECORDS.  HERE THE RECORDS WERE SHOWN TO
BE INCOMPLETE.  RECEIPTS FROM THE COIN MACHINES WERE TABULATED FROM A
NUMBER OF RECEIPT BOOKS COVERING VARIOUS LOCATIONS.  THE RECEIPT BOOKS
WERE NOT NUMBERED; THE TAXPAYER WAS UNSURE OF HOW MANY MACHINES HE HAD
IN OPERATION; AND THERE WAS CONSIDERABLE CONCERN ABOUT RECEIPT BOOKS
BEING LOST OR MISPLACED.  THE LOSS OF ONE RECEIPT BOOK WOULD MAKE A
DIFFERENCE OF FROM $1,000 TO $1,500 IN INCOME.  EVENTUALLY, ON THE
ADVICE OF HIS ACCOUNTANT, RESPONDENT BEGAN TO NUMBER THE BOOKS.  (FN2)
BUT, EVEN AFTER THIS SAFEGUARD WAS EMPLOYED, UNNUMBERED BOOKS CONTINUED
TO APPEAR - AND THEN DISAPPEAR; TWO WERE LOST, AND SUBSEQUENTLY
RECOVERED, IN A PERIOD OF THREE OR FOUR MONTHS.  A SYSTEM OF RECORDING
RECEIPTS WHICH RESTS ON SO UNFIRM A FOUNDATION HARDLY PLACES THE
RESPONDENT IN A VERY DIFFERENT CLASS - FOR THIS PURPOSE - THAN THE
TAXPAYER WHO KEEPS NO BOOKS AT ALL.  BOTH ARE RECEIVING UNRECORDED
AMOUNTS OF INCOME. 

THE INCREASE IN RESPONDENT'S VISIBLE ASSETS IS CONSIDERABLY LESS THAN
THE INCREASE PRESENTED IN THE SMITH CASE.  THERE THE INCREMENT OVER A
FOUR-YEAR PERIOD AMOUNTED TO MORE THAN $196,000; THE TAXPAYER'S
DECLARED INCOME WAS LESS THAN $17,000; AND HIS AVERAGE PERSONAL LIVING
EXPENSES WERE $3,500 A YEAR.  IN THIS CASE, ALSO OVER A FOUR-YEAR SPAN,
THE FIGURES ARE:  INCREASE IN VISIBLE ASSETS (EXCLUDING THE CASH ITEM),
$47,594; DECLARED INCOME, $16,775; LIVING EXPENSES, $3,000 YEARLY (PLUS
SOME $1,900 IN OTHER NONDEDUCTIBLE EXPENDITURES).  THE INCREASE, THOUGH
LESS THAN IN SMITH, IS FAR FROM INSUBSTANTIAL.  WHILE REPORTING INCOME
ONLY $4,775 IN EXCESS OF HIS LIVING EXPENSES, THE TAXPAYER INCREASED
HIS BANK BALANCES BY OVER $16,000; ADDED $1,000 TO HIS HOLDINGS OF
UNITED STATES SAVINGS BONDS; INCREASED HIS INVESTMENTS IN LAND AND
BUILDINGS BY OVER $9,000; AND POURED SOME $22,000 NET ADDITIONAL
CAPITAL INTO HIS BUSINESS.  THESE INCREMENTS, WHEN CONSIDERED IN THE
LIGHT OF RESPONDENT'S RECEIPT OF UNRECORDED AMOUNTS OF TAXABLE INCOME,
ARE SUFFICIENTLY AT VARIANCE WITH HIS REPORTED INCOME TO SUPPORT AN
INFERENCE OF TAX EVASION.  THE INFERENCE IS BUTTRESSED IN THIS CASE BY
THE PECULIAR RELATION BETWEEN THE REPORTED GAINS FROM RESPONDENT'S COIN
MACHINE BUSINESS AND HIS INVESTMENTS IN NEW EQUIPMENT.  IN THREE OF THE
FOUR PROSECUTION YEARS THE RESPONDENT REPORTED A NET LOSS ON HIS COIN
MACHINE OPERATION, AND IN THE FOURTH A NET GAIN OF ONLY $1,330.  DURING
THE SAME PERIOD HE MADE GROSS INVESTMENTS IN NEW EQUIPMENT TOTALING
$37,555.  THE JURY COULD READILY FIND DEFENDANT'S INVESTMENT POLICY
INCONSISTENT WITH HIS CLAIMED LOSSES.  FURTHERMORE, ALTHOUGH RESPONDENT
CONTENDS THAT THE WAR YEARS MARKED THE PEAK OF HIS BUSINESS ACTIVITY
AND THAT HIS APPARENT POSTWAR INCREASES CAME FROM PROFITS ACCUMULATED
DURING THAT PERIOD, IT WAS NOT UNTIL 1947, THE MIDDLE OF THE
PROSECUTION PERIOD, THAT HIS BUSINESS BECAME SUFFICIENTLY LARGE TO
REQUIRE THE FULL TIME OF HIS ACCOUNTANT.  WE HOLD THAT THE FINANCIAL
HISTORY OF RESPONDENT AND HIS BUSINESS DURING THE PROSECUTION YEARS
PROVIDES SUFFICIENT INDEPENDENT EVIDENCE OF THE CRIME OF TAX EVASION TO
CORROBORATE HIS STATEMENTS CONCERNING CASH ON HAND. 

EVEN MORE CONCLUSIVE CORROBORATION, HOWEVER, IS RESPONDENT'S
TESTIMONY AT THE TRIAL THAT HE HAD $16,000 OR $17,000 CASH ON HAND AT
THE STARTING POINT.  THIS CONFLICTED WITH THE STATEMENTS BEING
CORROBORATED ($500) AND RESPONDENT'S TESTIMONY AT A PRIOR TRIAL ($2,000
TO $9,000), BUT FOR THE PURPOSE OF INDEPENDENTLY ESTABLISHING THE CRIME
CHARGED THE JURY COULD ACCEPT THIS TESTIMONY.  RESPONDENT FURTHER
TESTIFIED THAT HE HAD $3,000 OR $4,000 IN CASH AT THE END OF THE
PROSECUTION PERIOD.  TAKEN TOGETHER WITH THE REMAINDER OF THE NET WORTH
STATEMENT, WHICH WAS STIPULATED OR INDEPENDENTLY ESTABLISHED, THIS
TESTIMONY ESTABLISHES A DEFICIENCY IN REPORTED INCOME OF MORE THAN
$30,000.  (FN3)  THERE COULD HARDLY BE MORE CONCLUSIVE INDEPENDENT
EVIDENCE OF THE CRIME. 

BUT ONE PROBLEM REMAINS.  THE $17,000 HOARD OF CASH COULD HAVE
ABSORBED THE COMPUTED INCOME DEFICIENCY FOR ONE OR MORE OF THE
PROSECUTION YEARS, (FN4) AND RESPONDENT WAS CONVICTED ON ALL FOUR
COUNTS.  IT MIGHT BE ARGUED THAT INDEPENDENT EVIDENCE SHOWING A $30,000
DEFICIENCY IS NOT ENOUGH - THAT THERE MUST BE EVIDENCE THAT THIS SUM
RESULTED IN A DEFICIENCY FOR EACH OF THE YEARS HERE IN ISSUE.  THERE IS
NO MERIT IN THIS CONTENTION.  IN THE FIRST PLACE, THIS EVIDENCE IS
MERELY CORROBORATING RESPONDENT'S CASH-ON-HAND ADMISSIONS AND NEED NOT
COMPLY WITH THE NICETIES OF THE ANNUAL ACCOUNTING CONCEPT.  WHILE THE
EVIDENCE AS A WHOLE MUST SHOW A DEFICIENCY FOR EACH OF THE PROSECUTION
YEARS, THE CORROBORATIVE EVIDENCE SUFFICES IF IT SHOWS A SUBSTANTIAL
DEFICIENCY FOR THE OVER-ALL PROSECUTION PERIOD.  INDEPENDENT EVIDENCE
THAT RESPONDENT UNDERSTATED HIS INCOME BY $30,000 IN THE SAME FOUR-YEAR
PERIOD FOR WHICH RESPONDENT'S EXTRAJUDICIAL ADMISSIONS TENDED TO SHOW A
$46,000 DEFICIENCY IS ADEQUATE CORROBORATION.  IT PROVIDES SUBSTANTIAL
EVIDENCE THAT THE CRIME OR CRIMES OF TAX EVASION HAVE BEEN COMMITTED;
THE CORROBORATION RULE REQUIRES NO MORE.  SECOND, THERE IS EVIDENCE IN
THIS CASE WHICH TENDS TO NEGATE THE POSSIBILITY THAT THE ALLEGED
$17,000 HOARD COULD HAVE ABSORBED THE DEFICIENCY FOR ANY OF THE
PROSECUTION YEARS.  THIS MONEY SUPPOSEDLY WENT TOWARD THE PURCHASE OF
EQUIPMENT IN 1946 AND EARLY 1947.  ALMOST $16,000 IN EQUIPMENT WAS
PURCHASED IN 1946; THIS ACCOUNTS FOR NEARLY ALL OF THE CASH HOARD AND
STILL LEAVES A DEFICIENCY IN 1946 OF OVER $5,000 IN UNREPORTED INCOME. 
(FN5)  THE FUNDS WHICH REMAIN ARE INSUFFICIENT TO ABSORB THE INCOME
DEFICIENCIES OF ANY SUBSEQUENT PROSECUTION YEARS.  (FN6) 

AS WE SAID, THE CIRCUMSTANCES SURROUNDING RESPONDENT'S ADMISSIONS
CREATE CONSIDERABLE DOUBT AS TO THEIR RELIABILITY.  WE HAVE THEREFORE
EXAMINED THE INDEPENDENT EVIDENCE WITH GREAT CARE TO INSURE THAT THE
ACCUSED WILL NOT BE CONVICTED ON THE BASIS OF A FALSE ADMISSION ALONE. 
ALTHOUGH THE EVIDENCE WAS INSUFFICIENT TO CORROBORATE THE OPENING NET
WORTH DIRECTLY, WE FIND THE INDEPENDENT PROOF OF TAX EVASION ENTIRELY
ADEQUATE.  ACCORDINGLY, THE DECISION OF THE COURT OF APPEALS SETTING
ASIDE THE CONVICTION IS REVERSED.    FN1  BY INTRODUCING EVIDENCE, THE
DEFENDANT WAIVES HIS OBJECTIONS TO THE DENIAL OF HIS MOTION TO ACQUIT. 
LII V. UNITED STATES, 198 F.2D 109; LEEBY V. UNITED STATES, 192 F.2D
331; GAUNT V. UNITED STATES, 184 F.2D 284; MOSCA V. UNITED STATES, 174
F.2D 448; HALL V. UNITED STATES, 83 U.S. APP. D.C. 166, 168 F.2D 161. 
HIS PROOF MAY LAY THE FOUNDATION FOR OTHERWISE INADMISSIBLE EVIDENCE IN
THE GOVERNMENT'S INITIAL PRESENTATION, LADREY V. UNITED STATES, 81 U.S.
APP. D.C. 127, 155 F.2D 417, OR PROVIDE CORROBORATION FOR ESSENTIAL
ELEMENTS OF THE GOVERNMENT'S CASE, UNITED STATES V. GOLDSTEIN, 168 F.2D
666; ERCOLI V. UNITED STATES, 76 U.S. APP. D.C. 360, 131 F.2D 354. 

FN2  IT IS NOT CLEAR FROM THE RECORD WHETHER THIS NUMBERING BEGAN
DURING OR AFTER THE PROSECUTION PERIOD.  COMPARE R. 130-131 WITH R. 177
178. 

FN3  THE GOVERNMENT'S NET WORTH COMPUTATION, BASED ON $500 CASH ON
HAND AT THE OUTSET AND $1,971.50 ON HAND AT THE CONCLUSION OF THE
PROSECUTION PERIOD, YIELDS A FOUR-YEAR NET WORTH INCREASE (WITH
EXPENDITURES) OF $62,993 - $46,218 IN EXCESS OF DECLARED INCOME. 
ELIMINATING THE CASH ITEMS FROM THE NET WORTH STATEMENT, THE DEFICIENCY
IS REDUCED BY $1,471 - TO $44,747.  IF THE DEFENDANT'S TESTIMONY IS
ACCEPTED, OF $17,000 CASH ON HAND AT THE BEGINNING AND $3,000 AT THE
END, THE DEFICIENCY MUST BE REDUCED BY ANOTHER $14,000, LEAVING
$30,747. 

FN4  THE COMPUTED DEFICIENCY FOR 1947 WAS $7,393, AND FOR 1948,
$3,284. 

FN5  THE COMPUTED DEFICIENCY FOR 1946 WAS $21,019. 

FN6  SEE NOTES 3 AND 4.  THE COMPUTED DEFICIENCY FOR 1949 WAS
$14,523. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :




















SULLIVAN V. UNITED STATES 348 U.S. 170 


NO. 64.  ARGUED NOVEMBER 8, 1954 - DECIDED DECEMBER 6, 1954 - 212 F.2D
125, AFFIRMED. 


1.  THE PROVISION OF 26 U.S.C. SEC. 3740 BARRING SUITS FOR THE
RECOVERY OF TAXES UNLESS THE ATTORNEY GENERAL DIRECTS THAT THE SUIT BE
COMMENCED APPLIES ONLY TO CIVIL SUITS AND NOT TO CRIMINAL PROCEEDINGS,
AND DOES NOT VITIATE INDICTMENTS BASED ON EVIDENCE WHICH A UNITED
STATES ATTORNEY PRESENTED TO THE GRAND JURY WITHOUT THE AUTHORIZATION
OF THE ATTORNEY GENERAL.  PP. 171-172. 

2.  SECTION 5 OF EXECUTIVE ORDER NO. 6166, AND CIRCULAR LETTER NO.
2431 OF THE DEPARTMENT OF JUSTICE, DID NOT LIMIT THE ACTION OF THE
GRAND JURY IN RESPECT TO CASES CONCERNING VIOLATIONS OF THE INTERNAL
REVENUE LAWS, AND THE GRAND JURY IN THIS CASE WAS FREE TO CONSIDER THE
EVIDENCE WHICH WAS PRESENTED TO IT BY THE UNITED STATES ATTORNEY
WITHOUT AUTHORIZATION OF THE ATTORNEY GENERAL.  PP. 172-174. 

3.  THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING
PETITIONER'S MOTION, AFTER SENTENCE, FOR LEAVE TO WITHDRAW HIS PLEAS OF
NOLO CONTENDERE, SINCE PETITIONER FAILED TO SHOW THE "MANIFEST
INJUSTICE" WHICH, UNDER RULE 32(D) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, WOULD WARRANT PERMITTING HIM TO WITHDRAW HIS PLEAS.  PP. 174
175. 

SULLIVAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

UPON PLEAS OF NOLO CONTENDERE, THE PETITIONER WAS FOUND GUILTY OF
VIOLATING THE INCOME TAX LAWS BY MAKING AND FILING FALSE AND FRAUDULENT
RETURNS.  THE DISTRICT COURT SENTENCED HIM TO THREE YEARS' IMPRISONMENT
AND FINED HIM $13,000.  THE COURT OF APPEALS AFFIRMED, 212 F.2D 125,
AND WE GRANTED CERTIORARI, 347 U.S. 1010. 

ON FEBRUARY 28, 1952, A DULY CONSTITUTED GRAND JURY FOR THE DISTRICT
OF KANSAS INDICTED THE PETITIONER ON FOUR COUNTS FOR FALSE AND
FRAUDULENT STATEMENTS IN HIS INDIVIDUAL TAX RETURNS AND ON TWO COUNTS
IN ANOTHER INDICTMENT FOR FALSE AND FRAUDULENT RETURNS OF THE CENTRAL
THEATRE CO., A CORPORATION OF WHICH HE WAS PRESIDENT.  TO THESE
INDICTMENTS THE PETITIONER ENTERED PLEAS OF NOT GUILTY.  HE LATER
WITHDREW THESE PLEAS, AND TO TWO COUNTS OF THE INDICTMENT ON HIS
INDIVIDUAL RETURNS AND TO ONE COUNT ON THE CORPORATION RETURNS, HE
ENTERED PLEAS OF NOLO CONTENDERE.  THE OTHER COUNTS WERE DISMISSED. 

BEFORE THE PLEAS OF NOLO CONTENDERE WERE ENTERED, PETITIONER HAD
FILED MOTIONS TO DISMISS THE INDICTMENTS BECAUSE THE EVIDENCE UPON
WHICH THEY WERE BASED WAS PRESENTED TO THE GRAND JURY BY THE DISTRICT
ATTORNEY WITHOUT DIRECTION TO DO SO BY THE ATTORNEY GENERAL'S OFFICE. 
THESE MOTIONS WERE OVERRULED AFTER ARGUMENT AND TIME FOR BRIEFING. 
THIS PRESENTS THE FIRST QUESTION, NAMELY, WERE THE INDICTMENTS FAULTY
BECAUSE, WITHOUT SANCTION BY THE ATTORNEY GENERAL'S OFFICE, THE
DISTRICT ATTORNEY OFFERED EVIDENCE TO THE GRAND JURY UPON WHICH THE
INDICTMENTS WERE RETURNED?  IT IS FIRST CONTENDED BY PETITIONER THAT,
PURSUANT TO 26 U.S.C. SEC. 3740, (FN1) THE INDICTMENTS COULD NOT BE
RETURNED WITHOUT AUTHORIZATION BY THAT OFFICE.  WE AGREE WITH THE COURT
OF APPEALS THAT THIS SECTION APPLIES ONLY TO CIVIL SUITS AND NOT TO
CRIMINAL PROCEEDINGS.  IN THE ABSENCE OF WORDS IN THEIR CONTEXT
REQUIRING A DIFFERENT CONCLUSION, THE PHRASE "SUITS FOR RECOVERY"
ORDINARILY MEANS CIVIL SUITS AND NOT CRIMINAL PROSECUTIONS.  HEPNER V.
UNITED STATES, 213 U.S. 103, 105-109; STOCKWELL V. UNITED STATES, 13
WALL.  531, 542-543.  ONE "RECOVERS" IN A CIVIL ACTION BUT PROSECUTES
AND PUNISHES IN A CRIMINAL PROCEEDING. 

THE FURTHER CONTENTION IS MADE THAT SEC. 5 OF EXECUTIVE ORDER NO.
6166, (FN2) AND CIRCULAR LETTER NO. 2431 OF THE DEPARTMENT OF JUSTICE,
(FN3) REQUIRED APPROVAL FROM THE ATTORNEY GENERAL'S OFFICE BEFORE ANY
EVIDENCE COULD BE PRESENTED TO THE GRAND JURY AND THAT SUCH DIRECTION
WAS NOT GIVEN.  IT IS ADMITTED THAT NO AUTHORIZATION WAS RECEIVED FROM
THE ATTORNEY GENERAL'S OFFICE TO PRESENT THE EVIDENCE TO THE GRAND JURY
IN THE INSTANT CASE; NOR DOES THE RECORD REVEAL CLEARLY THAT AN
EMERGENCY EXISTED.  APPARENTLY NONE WAS REPORTED TO THE DEPARTMENT OF
JUSTICE AS REQUIRED BY CIRCULAR LETTER NO. 2431. 

PRIOR TO EXECUTIVE ORDER NO. 6166, PROSECUTIONS FOR THE VIOLATION OF
INTERNAL REVENUE LAWS WERE OFTEN REFERRED DIRECTLY TO UNITED STATES
DISTRICT ATTORNEYS FOR PRESENTATION TO GRAND JURIES.  THE PURPOSE OF
SEC. 5 OF EXECUTIVE ORDER NO. 6166, AMONG OTHER THINGS, WAS TO TRANSFER
RESPONSIBILITY FOR THE PROSECUTION OF CRIMINAL PROCEEDINGS AND SUITS BY
OR AGAINST THE UNITED STATES IN CIVIL MATTERS TO THE DEPARTMENT OF
JUSTICE. 

IT WAS NOT THE PURPOSE OF THE EXECUTIVE ORDER TO DIRECT HOW THE
RESPONSIBILITY SHOULD BE EXERCISED BUT TO FIX IT IN THE DEPARTMENT OF
JUSTICE.  HOW THAT RESPONSIBILITY WAS TO BE DISCHARGED WAS A MATTER FOR
THE DEPARTMENT.  TO MAKE THE SYSTEM UNIFORM, CIRCULAR LETTER NO. 2431
WAS SENT TO ALL DISTRICT ATTORNEYS.  IT WAS NEVER PROMULGATED AS A
REGULATION OF THE DEPARTMENT AND PUBLISHED IN THE FEDERAL REGISTER.  IT
WAS SIMPLY A HOUSEKEEPING PROVISION OF THE DEPARTMENT AND WAS NOT
INTENDED TO CURTAIL OR LIMIT THE WELL-RECOGNIZED POWER OF THE GRAND
JURY TO CONSIDER AND INVESTIGATE ANY ALLEGED CRIME WITHIN ITS
JURISDICTION.  SEE UNITED STATES V. THOMPSON, 251 U.S. 407, 413-415;
BLAIR V. UNITED STATES, 250 U.S. 273, 282; HALE V. HENKEL, 201 U.S. 43,
61-66; FRISBIE V. UNITED STATES, 157 U.S. 160, 163. 

THEREFORE, IT IS NOT CONTENDED THAT, ASIDE FROM THE EXECUTIVE ORDER
AND THE DEPARTMENTAL LETTER, A GRAND JURY MAY NOT CONSIDER EVIDENCE OF
CRIME KNOWN TO THE GRAND JURORS OR REVEALED BY THEIR INVESTIGATION.  IT
IS ONLY URGED THAT THE EXECUTIVE ORDER AND THE DEPARTMENTAL LETTER
LIMITED THE ACTION OF THE GRAND JURY IN RESPECT TO CASES CONCERNING
VIOLATIONS OF INTERNAL REVENUE LAWS.  WE HOLD THAT THE ORDER AND THE
LETTER HAD NO SUCH RESTRICTIVE EFFECT, AND THAT THE GRAND JURY IN THIS
CASE WAS FREE TO CONSIDER THE EVIDENCE PUT BEFORE IT BY GOVERNMENT
COUNSEL WITHOUT AUTHORIZATION FROM THE ATTORNEY GENERAL'S OFFICE IN
WASHINGTON.  THE EVIDENCE WAS PRESENTED BY THE DISTRICT ATTORNEY, WHO
WAS A REPRESENTATIVE OF THE DEPARTMENT OF JUSTICE, NOTWITHSTANDING THAT
HE FAILED TO COMPLY WITH THE DEPARTMENTAL DIRECTIVE.  FOR THIS HE IS
ANSWERABLE TO THE DEPARTMENT, BUT HIS ACTION BEFORE THE GRAND JURY WAS
NOT SUBJECT TO ATTACK BY ONE INDICTED BY THE GRAND JURY ON SUCH
EVIDENCE.  THE MOTIONS TO DISMISS WERE PROPERLY OVERRULED. 

THREE DAYS AFTER JUDGMENT HAD BEEN PRONOUNCED FINDING THE PETITIONER
GUILTY UNDER HIS PLEAS OF NOLO CONTENDERE AND SENTENCES PASSED, THE
PETITIONER FILED A MOTION ASKING FOR LEAVE TO WITHDRAW HIS PLEAS. 
LATER HE FILED AN AMENDED MOTION TO WITHDRAW THE PLEAS AND A PETITION
FOR PROBATION.  IN HIS MOTION TO WITHDRAW THE PLEAS, HE GAVE THE
FOLLOWING REASONS, (1) BECAUSE OF MANIFEST INJUSTICE, (2) BECAUSE HE
HAD ENTERED HIS PLEAS UNDER THE MISTAKEN BELIEF, INDUCED BY THE ACTS
AND STATEMENTS OF GOVERNMENT COUNSEL, THAT HE WOULD BE PLACED ON
PROBATION, AND (3) BECAUSE OF MISCONDUCT OF THE DISTRICT ATTORNEY.  THE
DISTRICT COURT, AFTER HEARING ARGUMENT, DENIED THE MOTION AND THE
PETITION FOR PROBATION AND FILED ITS FINDINGS OF FACT, ALTHOUGH THERE
APPARENTLY WAS NO REQUEST FOR THEM.  (FN4)  UNDER RULE 32(D) (FN5) A
DEFENDANT MAY, AFTER SENTENCE, WITHDRAW A PLEA OF NOLO CONTENDERE TO
CORRECT MANIFEST INJUSTICE.  IT IS THIS PROVISION THAT PETITIONER
RELIES UPON.  HE CLAIMS HE WAS SOMEHOW MISLED BY GOVERNMENT COUNSEL TO
BELIEVE THAT IF HE ENTERED THE PLEAS OF NOLO CONTENDERE HE WOULD
RECEIVE PROBATION.  BY THE COURT'S FINDINGS, WHICH, IN LIGHT OF THE
EVIDENCE, RAISE NOT A DOUBT, IT IS SETTLED THAT THE COURT IN NO WAY
MISLED THE PETITIONER AND THAT GOVERNMENT COUNSEL MADE NO PROMISES OF
LENIENCY OR PROBATION.  (FN6) 

PETITIONER ARGUES THAT THE UNITED STATES ATTORNEY MISLED HIM BECAUSE
HIS STATEMENT TO THE COURT DURING THE HEARING FOR PROBATION WAS
STRONGER THAN PETITIONER AND HIS COUNSEL EXPECTED.  NO EXCEPTION WAS
TAKEN TO ANYTHING THE DISTRICT ATTORNEY SAID, NOR WAS ANY CONPLAINT
MADE ABOUT SUCH STATEMENT UNTIL AFTER SENTENCE WAS PRONOUNCED.  WE HAVE
READ THIS STATEMENT AND THE AFFIDAVITS OF BOTH COUNSEL.  THE STATEMENT
WAS FACTUAL, DISPASSIONATE AND FAIR.  THE PETITIONER HAS FAILED TO SHOW
ANY "MANIFEST INJUSTICE" AS REQUIRED BY RULE 32(D).  DURING ALL OF THE
PROCEEDINGS FROM ARRAIGNMENT TO DENIAL OF PETITION FOR PROBATION,
PETITIONER WAS REPRESENTED BY ABLE AND EXPERIENCED COUNSEL.  IN OUR
OPINION THEY WERE NOT AND COULD NOT HAVE BEEN MISLED BY THE ACTION AND
STATEMENTS OF GOVERNMENT COUNSEL.  THE JUDGMENT IS AFFIRMED. 

FN1  "NO SUIT FOR THE RECOVERY OF TAXES, OR OF ANY FINE, PENALTY, OR
FORFEITURE, SHALL BE COMMENCED UNLESS THE COMMISSIONER AUTHORIZES OR
SANCTIONS THE PROCEEDINGS AND THE ATTORNEY GENERAL DIRECTS THAT THE
SUIT BE COMMENCED." 

FN2  "THE FUNCTIONS OF PROSECUTING IN THE COURTS OF THE UNITED STATES
CLAIMS AND DEMANDS BY, AND OFFENSES AGAINST, THE GOVERNMENT OF THE
UNITED STATES AND OF DEFENDING CLAIMS AND DEMANDS AGAINST THE
GOVERNMENT, AND OF SUPERVISING THE WORK OF UNITED STATES ATTORNEYS,
MARSHALS, AND CLERKS IN CONNECTION THEREWITH, NOW EXERCISED BY ANY
AGENCY OR OFFICER, ARE TRANSFERRED TO THE DEPARTMENT OF JUSTICE. 

"AS TO ANY CASE REFERRED TO THE DEPARTMENT OF JUSTICE FOR PROSECUTION
OR DEFENSE IN THE COURTS, THE FUNCTION OF DECISION WHETHER AND IN WHAT
MANNER TO PROSECUTE, OR TO DEFEND, OR TO COMPROMISE, OR TO APPEAL, OR
TO ABANDON PROSECUTION OR DEFENSE, NOW EXERCISED BY ANY AGENCY OR
OFFICER, IS TRANSFERRED TO THE DEPARTMENT OF JUSTICE. 

"FOR THE EXERCISE OF SUCH OF HIS FUNCTIONS AS ARE NOT TRANSFERRED TO
THE DEPARTMENT OF JUSTICE BY THE FOREGOING TWO PARAGRAPHS, THE
SOLICITOR OF THE TREASURY IS TRANSFERRED FROM THE DEPARTMENT OF JUSTICE
TO THE TREASURY DEPARTMENT. 

"NOTHING IN THIS SECTION SHALL BE CONSTRUED TO AFFECT THE FUNCTION OF
ANY AGENCY OR OFFICER WITH RESPECT TO CASES AT ANY STAGE PRIOR TO
REFERENCE TO THE DEPARTMENT OF JUSTICE FOR PROSECUTION OR DEFENSE." 
PROMULGATED JUNE 10, 1933, 5 U.S.C. SECS. 124-132. 

FN3  "IN ACCORDANCE THEREWITH, ALL UNITED STATES ATTORNEYS ARE
DIRECTED TO PRESENT EVIDENCE TO A GRAND JURY CONCERNING VIOLATIONS OF
REVENUE LAWS OF THE UNITED STATES ONLY WHEN AUTHORIZED TO DO SO BY THIS
OFFICE, UNLESS AN EMERGENCY CALLS FOR IMMEDIATE ACTION, IN WHICH EVENT
A FULL REPORT SHOULD PROMPTLY BE SUBMITTED."  AUGUST 10, 1933. 

FN4  SEE RULE 23(C), FED. RULES CRIM. PROC. 

FN5  "WITHDRAWAL OF PLEA OF GUILTY.  A MOTION TO WITHDRAW A PLEA OF
GUILTY OR OF NOLO CONTENDERE MAY BE MADE ONLY BEFORE SENTENCE IS
IMPOSED OR IMPOSITION OF SENTENCE IS SUSPENDED; BUT TO CORRECT MANIFEST
INJUSTICE THE COURT AFTER SENTENCE MAY SET ASIDE THE JUDGMENT OF
CONVICTION AND PERMIT THE DEFENDANT TO WITHDRAW HIS PLEA."  RULE 32(D),
FED. RULES CRIM. PROC. 

FN6  "AT THE JUNE 23 HEARING, THE COURT SPECIFICALLY INQUIRED OF
DEFENDANT'S COUNSEL AS TO WHETHER ANY REMARK OR STATEMENT MADE BY THE
COURT TO DEFENDANT'S COUNSEL HAD INFLUENCED THEM IN ADVISING THE
DEFENDANT TO ENTER THE PLEAS ABOVE MENTIONED.  THE COURT WAS ASSURED BY
DEFENDANT'S COUNSEL AND NOW FINDS THAT NO STATEMENT OF THE COURT MADE
TO DEFENDANT'S COUNSEL OR IN THE PRESENCE OF DEFENDANT INFLUENCED THE
DEFENDANT'S ENTRANCE OF HIS PLEAS OF NOLO CONTENDERE. 

"THE COURT FURTHER FINDS NO PROMISE OF PROBATION OR LENIENCE WAS
MADE, EITHER TO THE DEFENDANT PERSONALLY OR TO HIS COUNSEL BY THE
UNITED STATES ATTORNEY OR HIS ASSISTANT WHO HANDLED THE PROSECUTION FOR
THE GOVERNMENT."  FINDINGS 9 AND 10, R. 91-92. 
..END :























BERMAN, EXECUTORS V. PARKER 348 U.S. 26 


NO. 22.  ARGUED OCTOBER 19, 1954 - DECIDED NOVEMBER 22, 1954 - 117 F.
SUPP. 705, MODIFIED AND AFFIRMED. 


THE DISTRICT OF COLUMBIA REDEVELOPMENT ACT OF 1945 IS CONSTITUTIONAL,
AS APPLIED TO THE TAKING OF APPELLANTS' BUILDING AND LAND (USED SOLELY
FOR COMMERCIAL PURPOSES) UNDER THE POWER OF EMINENT DOMAIN, PURSUANT TO
A COMPREHENSIVE PLAN PREPARED BY AN ADMINISTRATIVE AGENCY FOR THE
REDEVELOPMENT OF A LARGE AREA OF THE DISTRICT OF COLUMBIA SO AS TO
ELIMINATE AND PREVENT SLUM AND SUBSTANDARD HOUSING CONDITIONS - EVEN
THOUGH SUCH PROPERTY MAY LATER BE SOLD OR LEASED TO OTHER PRIVATE
INTERESTS SUBJECT TO CONDITIONS DESIGNED TO ACCOMPLISH THESE PURPOSES. 
PP. 28-36. 

(A)  THE POWER OF CONGRESS OVER THE DISTRICT OF COLUMBIA INCLUDES ALL
THE LEGISLATIVE POWERS WHICH A STATE MAY EXERCISE OVER ITS AFFAIRS. 
PP. 31-32. 

(B)  SUBJECT TO SPECIFIC CONSTITUTIONAL LIMITATIONS, THE LEGISLATURE,
NOT THE JUDICIARY, IS THE MAIN GUARDIAN OF THE PUBLIC NEEDS TO BE
SERVED BY SOCIAL LEGISLATION ENACTED IN THE EXERCISE OF THE POLICE
POWER; AND THIS PRINCIPLE ADMITS OF NO EXCEPTION MERELY BECAUSE THE
POWER OF EMINENT DOMAIN IS INVOLVED.  P. 32. 

(C)  THIS COURT DOES NOT SIT TO DETERMINE WHETHER OR NOT A PARTICULAR
HOUSING PROJECT IS DESIRABLE.  P. 33. 

(D)  IF CONGRESS DECIDES THAT THE NATION'S CAPITAL SHALL BE BEAUTIFUL
AS WELL AS SANITARY, THERE IS NOTHING IN THE FIFTH AMENDMENT THAT
STANDS IN THE WAY.  P. 33. 

(E)  ONCE THE OBJECT IS WITHIN THE AUTHORITY OF CONGRESS, THE RIGHT TO
REALIZE IT THROUGH THE EXERCISE OF EMINENT DOMAIN IS CLEAR.  P. 33. 

(F)  ONCE THE PUBLIC PURPOSE HAS BEEN ESTABLISHED, THE MEANS OF
EXECUTING THE PROJECT ARE FOR CONGRESS AND CONGRESS ALONE TO
DETERMINE.  P. 33. 

(G)  THIS COURT CANNOT SAY THAT PUBLIC OWNERSHIP IS THE SOLE METHOD
OF PROMOTING THE PUBLIC PURPOSES OF A COMMUNITY REDEVELOPMENT PROJECT;
AND IT IS NOT BEYOND THE POWER OF CONGRESS TO UTILIZE AN AGENCY OF
PRIVATE ENTERPRISE FOR THIS PURPOSE OR TO AUTHORIZE THE TAKING OF
PRIVATE PROPERTY AND ITS RESALE OR LEASE TO THE SAME OR OTHER PRIVATE
PARTIES AS PART OF SUCH A PROJECT.  P. 34. 

(H)  IT IS NOT BEYOND THE POWER OF CONGRESS OR ITS AUTHORIZED
AGENCIES TO ATTACK THE PROBLEM OF THE BLIGHTED PARTS OF THE COMMUNITY
ON AN AREA RATHER THAN ON A STRUCTURE-BY-STRUCTURE BASIS. 
REDEVELOPMENT OF AN ENTIRE AREA UNDER A BALANCED INTEGRATED PLAN SO AS
TO INCLUDE NOT ONLY NEW HOMES BUT ALSO SCHOOLS, CHURCHES, PARKS,
STREETS, AND SHOPPING CENTERS IS PLAINLY RELEVANT TO THE MAINTENANCE OF
THE DESIRED HOUSING STANDARDS AND THEREFORE WITHIN CONGRESSIONAL
POWER.  PP. 34-35. 

(I)  THE STANDARDS CONTAINED IN THE ACT ARE SUFFICIENTLY DEFINITE TO
SUSTAIN THE DELEGATION OF AUTHORITY TO ADMINISTRATIVE AGENCIES TO
EXECUTE THE PLAN TO ELIMINATE NOT ONLY SLUMS BUT ALSO THE BLIGHTED
AREAS THAT TEND TO PRODUCE SLUMS.  P. 35. 

(J)  ONCE THE PUBLIC PURPOSE IS ESTABLISHED, THE AMOUNT AND CHARACTER
OF THE LAND TO BE TAKEN FOR THE PROJECT AND THE NEED FOR A PARTICULAR
TRACT TO COMPLETE THE INTEGRATED PLAN RESTS IN THE DISCRETION OF THE
LEGISLATURE.  PP. 35-36. 

(K)  IF THE REDEVELOPMENT AGENCY CONSIDERS IT NECESSARY IN CARRYING
OUT A REDEVELOPMENT PROJECT TO TAKE FULL TITLE TO THE LAND, AS
DISTINGUISHED FROM THE OBJECTIONABLE BUILDINGS LOCATED THEREON, IT MAY
DO SO.  P. 36. 

(L)  THE RIGHTS OF THESE PROPERTY OWNERS ARE SATISFIED WHEN THEY
RECEIVE THE JUST COMPENSATION WHICH THE FIFTH AMENDMENT EXACTS AS THE
PRICE OF THE TAKING.  P. 36. 

BERMAN ET AL., EXECUTORS, V. PARKER ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL (28 U.S.C. SEC. 1253) FROM THE JUDGMENT OF A THREE
JUDGE DISTRICT COURT WHICH DISMISSED A COMPLAINT SEEKING TO ENJOIN THE
CONDEMNATION OF APPELLANTS' PROPERTY UNDER THE DISTRICT OF COLUMBIA
REDEVELOPMENT ACT OF 1945, 60 STAT. 790, D.C. CODE, 1951, SECS. 5-701-5
719.  THE CHALLENGE WAS TO THE CONSTITUTIONALITY OF THE ACT,
PARTICULARLY AS APPLIED TO THE TAKING OF APPELLANTS' PROPERTY.  THE
DISTRICT COURT SUSTAINED THE CONSTITUTIONALITY OF THE ACT.  117 F.
SUPP. 705. 

BY SEC. 2 OF THE ACT, CONGRESS MADE A "LEGISLATIVE DETERMINATION"
THAT "OWING TO TECHNOLOGICAL AND SOCIOLOGICAL CHANGES, OBSOLETE LAY
OUT, AND OTHER FACTORS, CONDITIONS EXISTING IN THE DISTRICT OF COLUMBIA
WITH RESPECT TO SUBSTANDARD HOUSING AND BLIGHTED AREAS, INCLUDING THE
USE OF BUILDINGS IN ALLEYS AS DWELLINGS FOR HUMAN HABITATION, ARE
INJURIOUS TO THE PUBLIC HEALTH, SAFETY, MORALS, AND WELFARE; AND IT IS
HEREBY DECLARED TO BE THE POLICY OF THE UNITED STATES TO PROTECT AND
PROMOTE THE WELFARE OF THE INHABITANTS OF THE SEAT OF THE GOVERNMENT BY
ELIMINATING ALL SUCH INJURIOUS CONDITIONS BY EMPLOYING ALL MEANS
NECESSARY AND APPROPRIATE FOR THE PURPOSE."* 

*THE ACT DOES NOT DEFINE EITHER "SLUMS" OR "BLIGHTED AREAS."  SECTION
3(R), HOWEVER, STATES: 

"'SUBSTANDARD HOUSING CONDITIONS' MEANS THE CONDITIONS OBTAINING IN
CONNECTION WITH THE EXISTENCE OF ANY DWELLING, OR DWELLINGS, OR HOUSING
ACCOMMODATIONS FOR HUMAN BEINGS, WHICH BECAUSE OF LACK OF SANITARY
FACILITIES, VENTILATION, OR LIGHT, OR BECAUSE OF DILAPIDATION,
OVERCROWDING, FAULTY INTERIOR ARRANGEMENT, OR ANY COMBINATION OF THESE
FACTORS, IS IN THE OPINION OF THE COMMISSIONERS DETRIMENTAL TO THE
SAFETY, HEALTH, MORALS, OR WELFARE OF THE INHABITANTS OF THE DISTRICT
OF COLUMBIA." 

NECESSARY TO ELIMINATE THESE HOUSING CONDITIONS. 

CONGRESS FURTHER FINDS IN SEC. 2 THAT THESE ENDS CANNOT BE ATTAINED
"BY THE ORDINARY OPERATIONS OF PRIVATE ENTERPRISE ALONE WITHOUT PUBLIC
PARTICIPATION"; THAT "THE SOUND REPLANNING AND REDEVELOPMENT OF AN
OBSOLESCENT OR OBSOLESCING PORTION" OF THE DISTRICT "CANNOT BE
ACCOMPLISHED UNLESS IT BE DONE IN THE LIGHT OF COMPREHENSIVE AND
COORDINATED PLANNING OF THE WHOLE OF THE TERRITORY OF THE DISTRICT OF
COLUMBIA AND ITS ENVIRONS"; AND THAT "THE ACQUISITION AND THE ASSEMBLY
OF REAL PROPERTY AND THE LEASING OR SALE THEREOF FOR REDEVELOPMENT
PURSUANT TO A PROJECT AREA REDEVELOPMENT PLAN  ... IS HEREBY DECLARED
TO BE A PUBLIC USE." 

(HEREINAFTER CALLED THE AGENCY), COMPOSED OF FIVE MEMBERS, WHICH IS
GRANTED POWER BY SEC. 5(A) TO ACQUIRE AND ASSEMBLE, BY EMINENT DOMAIN
AND OTHERWISE, REAL PROPERTY FOR "THE REDEVELOPMENT OF BLIGHTED
TERRITORY IN THE DISTRICT OF COLUMBIA AND THE PREVENTION, REDUCTION, OR
ELIMINATION OF BLIGHTING FACTORS OR CAUSES OF BLIGHT." 

COMMISSION (HEREINAFTER CALLED THE PLANNING COMMISSION) TO MAKE AND
DEVELOP "A COMPREHENSIVE OR GENERAL PLAN" OF THE DISTRICT, INCLUDING "A
LAND-USE PLAN" WHICH DESIGNATES LAND FOR USE FOR "HOUSING, BUSINESS,
INDUSTRY, RECREATION, EDUCATION, PUBLIC BUILDINGS, PUBLIC RESERVATIONS,
AND OTHER GENERAL CATEGORIES OF PUBLIC AND PRIVATE USES OF THE LAND." 
PLANS FOR SPECIFIC PROJECT AREAS.  THESE PLANS ARE SUBJECT TO THE
APPROVAL OF THE DISTRICT COMMISSIONERS AFTER A PUBLIC HEARING; AND THEY
PRESCRIBE THE VARIOUS PUBLIC AND PRIVATE LAND USES FOR THE RESPECTIVE
AREAS, THE "STANDARDS OF POPULATION DENSITY AND BUILDING INTENSITY,"
AND "THE AMOUNT OR CHARACTER OR CLASS OF ANY LOW-RENT HOUSING."  SEC.
6(B). 

ONCE THE PLANNING COMMISSION ADOPTS A PLAN AND THAT PLAN IS APPROVED
BY THE COMMISSIONERS, THE PLANNING COMMISSION CERTIFIES IT TO THE
AGENCY.  SEC. 6(D).  AT THAT POINT, THE AGENCY IS AUTHORIZED TO ACQUIRE
AND ASSEMBLE THE REAL PROPERTY IN THE AREA.  ID. 

AFTER THE REAL ESTATE HAS BEEN ASSEMBLED, THE AGENCY IS AUTHORIZED TO
TRANSFER TO PUBLIC AGENCIES THE LAND TO BE DEVOTED TO SUCH PUBLIC
PURPOSES AS STREETS, UTILITIES, RECREATIONAL FACILITIES, AND SCHOOLS,
SEC. 7(A), AND TO LEASE OR SELL THE REMAINDER AS AN ENTIRETY OR IN
PARTS TO A REDEVELOPMENT COMPANY, INDIVIDUAL, OR PARTNERSHIP.  SEC.
7(B), (F).  THE LEASES OR SALES MUST PROVIDE THAT THE LESSEES OR
PURCHASERS WILL CARRY OUT THE REDEVELOPMENT PLAN AND THAT "NO USE SHALL
BE MADE OF ANY LAND OR REAL PROPERTY INCLUDED IN THE LEASE OR SALE NOR
ANY BUILDING OR STRUCTURE ERECTED THEREON" WHICH DOES NOT CONFORM TO
THE PLAN, SECS. 7(D), 11.  PREFERENCE IS TO BE GIVEN TO PRIVATE
ENTERPRISE OVER PUBLIC AGENCIES IN EXECUTING THE REDEVELOPMENT PLAN. 
SEC. 7(G). 

THE FIRST PROJECT UNDERTAKEN UNDER THE ACT RELATES TO PROJECT AREA B
IN SOUTHWEST WASHINGTON, D.C. IN 1950 THE PLANNING COMMISSION PREPARED
AND PUBLISHED A COMPREHENSIVE PLAN FOR THE DISTRICT.  SURVEYS REVEALED
THAT IN AREA B, 64.3% OF THE DWELLINGS WERE BEYOND REPAIR, 18.4% NEEDED
MAJOR REPAIRS, ONLY 17.3% WERE SATISFACTORY; 57.8% OF THE DWELLINGS HAD
OUTSIDE TOILETS, 60.3% HAD NO BATHS, 29.3% LACKED ELECTRICITY, 82.2%
HAD NO WASH BASINS OR LAUNDRY TUBS, 83.8% LACKED CENTRAL HEATING.  IN
THE JUDGMENT OF THE DISTRICT'S DIRECTOR OF HEALTH IT WAS NECESSARY TO
REDEVELOP AREA B IN THE INTERESTS OF PUBLIC HEALTH.  THE POPULATION OF
AREA B AMOUNTED TO 5,012 PERSONS, OF WHOM 97.5% WERE NEGROES. 

THE PLAN FOR AREA B SPECIFIES THE BOUNDARIES AND ALLOCATES THE USE OF
THE LAND FOR VARIOUS PURPOSES.  IT MAKES DETAILED PROVISIONS FOR TYPES
OF DWELLING UNITS AND PROVIDES THAT AT LEAST ONE-THIRD OF THEM ARE TO
BE LOW-RENT HOUSING WITH A MAXIMUM RENTAL OF $17 PER ROOM PER MONTH. 

AFTER A PUBLIC HEARING, THE COMMISSIONERS APPROVED THE PLAN AND THE
PLANNING COMMISSION CERTIFIED IT TO THE AGENCY FOR EXECUTION.  THE
AGENCY UNDERTOOK THE PRELIMINARY STEPS FOR REDEVELOPMENT OF THE AREA
WHEN THIS SUIT WAS BROUGHT. 

APPELLANTS OWN PROPERTY IN AREA B AT 712 FOURTH STREET, S.W.  IT IS
NOT USED AS A DWELLING OR PLACE OF HABITATION.  A DEPARTMENT STORE IS
LOCATED ON IT.  APPELLANTS OBJECT TO THE APPROPRIATION OF THIS PROPERTY
FOR THE PURPOSES OF THE PROJECT.  THEY CLAIM THAT THEIR PROPERTY MAY
NOT BE TAKEN CONSTITUTIONALLY FOR THIS PROJECT.  IT IS COMMERCIAL, NOT
RESIDENTIAL PROPERTY; IT IS NOT SLUM HOUSING; IT WILL BE PUT INTO THE
PROJECT UNDER THE MANAGEMENT OF A PRIVATE, NOT A PUBLIC, AGENCY AND
REDEVELOPED FOR PRIVATE, NOT PUBLIC, USE.  THAT IS THE ARGUMENT; AND
THE CONTENTION IS THAT APPELLANTS' PRIVATE PROPERTY IS BEING TAKEN
CONTRARY TO TWO MANDATES OF THE FIFTH AMENDMENT - (1) "NO PERSON SHALL
...  BE DEPRIVED OF  ...  PROPERTY, WITHOUT DUE PROCESS OF LAW"; (2)
"NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST
COMPENSATION."  TO TAKE FOR THE PURPOSE OF RIDDING THE AREA OF SLUMS IS
ONE THING; IT IS QUITE ANOTHER, THE ARGUMENT GOES, TO TAKE A MAN'S
PROPERTY MERELY TO DEVELOP A BETTER BALANCED, MORE ATTRACTIVE
COMMUNITY.  THE DISTRICT COURT, WHILE AGREEING IN GENERAL WITH THAT
ARGUMENT, SAVED THE ACT BY CONSTRUING IT TO MEAN THAT THE AGENCY COULD
CONDEMN PROPERTY ONLY FOR THE REASONABLE NECESSITIES OF SLUM CLEARANCE
AND PREVENTION, ITS CONCEPT OF "SLUM" BEING THE EXISTENCE OF CONDITIONS
"INJURIOUS TO THE PUBLIC HEALTH, SAFETY, MORALS AND WELFARE."  117 F.
SUPP. 705, 724-725. 

THE POWER OF CONGRESS OVER THE DISTRICT OF COLUMBIA INCLUDES ALL THE
LEGISLATIVE POWERS WHICH A STATE MAY EXERCISE OVER ITS AFFAIRS.  SEE
DISTRICT OF COLUMBIA V. THOMPSON CO., 346 U.S. 100, 108.  WE DEAL, IN
OTHER WORDS, WITH WHAT TRADITIONALLY HAS BEEN KNOWN AS THE POLICE
POWER.  AN ATTEMPT TO DEFINE ITS REACH OR TRACE ITS OUTER LIMITS IS
FRUITLESS, FOR EACH CASE MUST TURN ON ITS OWN FACTS.  THE DEFINITION IS
ESSENTIALLY THE PRODUCT OF LEGISLATIVE DETERMINATIONS ADDRESSED TO THE
PURPOSES OF GOVERNMENT, PURPOSES NEITHER ABSTRACTLY NOR HISTORICALLY
CAPABLE OF COMPLETE DEFINITION.  SUBJECT TO SPECIFIC CONSTITUTIONAL
LIMITATIONS, WHEN THE LEGISLATURE HAS SPOKEN, THE PUBLIC INTEREST HAS
BEEN DECLARED IN TERMS WELL-NIGH CONCLUSIVE.  IN SUCH CASES THE
LEGISLATURE, NOT THE JUDICIARY, IS THE MAIN GUARDIAN OF THE PUBLIC
NEEDS TO BE SERVED BY SOCIAL LEGISLATION, WHETHER IT BE CONGRESS
LEGISLATING CONCERNING THE DISTRICT OF COLUMBIA (SEE BLOCK V. HIRSH,
256 U.S. 135) OR THE STATES LEGISLATING CONCERNING LOCAL AFFAIRS.  SEE
OLSEN V. NEBRASKA, 313 U.S. 236; LINCOLN UNION V. NORTHWESTERN CO., 335
U.S. 525; CALIFORNIA STATE ASSOCIATION V. MALONEY, 341 U.S. 105.  THIS
PRINCIPLE ADMITS OF NO EXCEPTION MERELY BECAUSE THE POWER OF EMINENT
DOMAIN IS INVOLVED.  THE ROLE OF THE JUDICIARY IN DETERMINING WHETHER
THAT POWER IS BEING EXERCISED FOR A PUBLIC PURPOSE IS AN EXTREMELY
NARROW ONE.  SEE OLD DOMINION CO. V. UNITED STATES, 269 U.S. 55, 66;
UNITED STATES EX REL. T.V.A. V. WELCH, 327 U.S. 546, 552. 

PUBLIC SAFETY, PUBLIC HEALTH, MORALITY, PEACE AND QUIET, LAW AND
ORDER - THESE ARE SOME OF THE MORE CONSPICUOUS EXAMPLES OF THE
TRADITIONAL APPLICATION OF THE POLICE POWER TO MUNICIPAL AFFAIRS.  YET
THEY MERELY ILLUSTRATE THE SCOPE OF THE POWER AND DO NOT DELIMIT IT.
SEE NOBLE STATE BANK V. HASKELL, 219 U.S. 104, 111.  MISERABLE AND
DISREPUTABLE HOUSING CONDITIONS MAY DO MORE THAN SPREAD DISEASE AND
CRIME AND IMMORALITY.  THEY MAY ALSO SUFFOCATE THE SPIRIT BY REDUCING
THE PEOPLE WHO LIVE THERE TO THE STATUS OF CATTLE.  THEY MAY INDEED
MAKE LIVING AN ALMOST INSUFFERABLE BURDEN.  THEY MAY ALSO BE AN UGLY
SORE, A BLIGHT ON THE COMMUNITY WHICH ROBS IT OF CHARM, WHICH MAKES IT
A PLACE FROM WHICH MEN TURN.  THE MISERY OF HOUSING MAY DESPOIL A
COMMUNITY AS AN OPEN SEWER MAY RUIN A RIVER. 

WE DO NOT SIT TO DETERMINE WHETHER A PARTICULAR HOUSING PROJECT IS OR
IS NOT DESIRABLE.  THE CONCEPT OF THE PUBLIC WELFARE IS BROAD AND
INCLUSIVE.  SEE DAY-BRITE LIGHTING, INC. V. MISSOURI, 342 U.S. 421,
424.  THE VALUES IT REPRESENTS ARE SPIRITUAL AS WELL AS PHYSICAL,
AESTHETIC AS WELL AS MONETARY.  IT IS WITHIN THE POWER OF THE
LEGISLATURE TO DETERMINE THAT THE COMMUNITY SHOULD BE BEAUTIFUL AS WELL
AS HEALTHY, SPACIOUS AS WELL AS CLEAN, WELL-BALANCED AS WELL AS
CAREFULLY PATROLLED.  IN THE PRESENT CASE, THE CONGRESS AND ITS
AUTHORIZED AGENCIES HAVE MADE DETERMINATIONS THAT TAKE INTO ACCOUNT A
WIDE VARIETY OF VALUES.  IT IS NOT FOR US TO REAPPRAISE THEM.  IF THOSE
WHO GOVERN THE DISTRICT OF COLUMBIA DECIDE THAT THE NATION'S CAPITAL
SHOULD BE BEAUTIFUL AS WELL AS SANITARY, THERE IS NOTHING IN THE FIFTH
AMENDMENT THAT STANDS IN THE WAY. 

ONCE THE OBJECT IS WITHIN THE AUTHORITY OF CONGRESS, THE RIGHT TO
REALIZE IT THROUGH THE EXERCISE OF EMINENT DOMAIN IS CLEAR.  FOR THE
POWER OF EMINENT DOMAIN IS MERELY THE MEANS TO THE END.  SEE LUXTON V.
NORTH RIVER BRIDGE CO., 153 U.S. 525, 529-530; UNITED STATES V.
GETTYSBURG ELECTRIC R. CO., 160 U.S. 668, 679.  ONCE THE OBJECT IS
WITHIN THE AUTHORITY OF CONGRESS, THE MEANS BY WHICH IT WILL BE
ATTAINED IS ALSO FOR CONGRESS TO DETERMINE.  HERE ONE OF THE MEANS
CHOSEN IS THE USE OF PRIVATE ENTERPRISE FOR REDEVELOPMENT OF THE AREA. 
APPELLANTS ARGUE THAT THIS MAKES THE PROJECT A TAKING FROM ONE
BUSINESSMAN FOR THE BENEFIT OF ANOTHER BUSINESSMAN.  BUT THE MEANS OF
EXECUTING THE PROJECT ARE FOR CONGRESS AND CONGRESS ALONE TO DETERMINE,
ONCE THE PUBLIC PURPOSE HAS BEEN ESTABLISHED.  SEE LUXTON V. NORTH
RIVER BRIDGE CO., SUPRA; CF. HIGHLAND V. RUSSELL CAR CO., 279 U.S.
253.  THE PUBLIC END MAY BE AS WELL OR BETTER SERVED THROUGH AN AGENCY
OF PRIVATE ENTERPRISE THAN THROUGH A DEPARTMENT OF GOVERNMENT - OR SO
THE CONGRESS MIGHT CONCLUDE.  WE CANNOT SAY THAT PUBLIC OWNERSHIP IS
THE SOLE METHOD OF PROMOTING THE PUBLIC PURPOSES OF COMMUNITY
REDEVELOPMENT PROJECTS.  WHAT WE HAVE SAID ALSO DISPOSES OF ANY
CONTENTION CONCERNING THE FACT THAT CERTAIN PROPERTY OWNERS IN THE AREA
MAY BE PERMITTED TO REPURCHASE THEIR PROPERTIES FOR REDEVELOPMENT IN
HARMONY WITH THE OVER-ALL PLAN.  THAT, TOO, IS A LEGITIMATE MEANS WHICH
CONGRESS AND ITS AGENCIES MAY ADOPT, IF THEY CHOOSE. 

IN THE PRESENT CASE, CONGRESS AND ITS AUTHORIZED AGENCIES ATTACK THE
PROBLEM OF THE BLIGHTED PARTS OF THE COMMUNITY ON AN AREA RATHER THAN
ON A STRUCTURE-BY-STRUCTURE BASIS.  THAT, TOO, IS OPPOSED BY
APPELLANTS.  THEY MAINTAIN THAT SINCE THEIR BUILDING DOES NOT IMPERIL
HEALTH OR SAFETY NOR CONTRIBUTE TO THE MAKING OF A SLUM OR A BLIGHTED
AREA, IT CANNOT BE SWEPT INTO A REDEVELOPMENT PLAN BY THE MERE DICTUM
OF THE PLANNING COMMISSION OR THE COMMISSIONERS.  THE PARTICULAR USES
TO BE MADE OF THE LAND IN THE PROJECT WERE DETERMINED WITH REGARD TO
THE NEEDS OF THE PARTICULAR COMMUNITY.  THE EXPERTS CONCLUDED THAT IF
THE COMMUNITY WERE TO BE HEALTHY, IF IT WERE NOT TO REVERT AGAIN TO A
BLIGHTED OR SLUM AREA, AS THOUGH POSSESSED OF A CONGENITAL DISEASE, THE
AREA MUST BE PLANNED AS A WHOLE.  IT WAS NOT ENOUGH, THEY BELIEVED, TO
REMOVE EXISTING BUILDINGS THAT WERE UNSANITARY OR UNSIGHTLY.  IT WAS
IMPORTANT TO REDESIGN THE WHOLE AREA SO AS TO ELIMINATE THE CONDITIONS
THAT CAUSE SLUMS - THE OVERCROWDING OF DWELLINGS, THE LACK OF PARKS,
THE LACK OF ADEQUATE STREETS AND ALLEYS, THE ABSENCE OF RECREATIONAL
AREAS, THE LACK OF LIGHT AND AIR, THE PRESENCE OF OUTMODED STREET
PATTERNS.  IT WAS BELIEVED THAT THE PIECEMEAL APPROACH, THE REMOVAL OF
INDIVIDUAL STRUCTURES THAT WERE OFFENSIVE, WOULD BE ONLY A PALLIATIVE. 
THE ENTIRE AREA NEEDED REDESIGNING SO THAT A BALANCED, INTEGRATED PLAN
COULD BE DEVELOPED FOR THE REGION, INCLUDING NOT ONLY NEW HOMES BUT
ALSO SCHOOLS, CHURCHES, PARKS, STREETS, AND SHOPPING CENTERS.  IN THIS
WAY IT WAS HOPED THAT THE CYCLE OF DECAY OF THE AREA COULD BE
CONTROLLED AND THE BIRTH OF FUTURE SLUMS PREVENTED.  CF. GOHLD REALTY
CO. V. HARTFORD, 141 CONN. 135, 141-144, 104 A.2D 365, 368-370; HUNTER
V. REDEVELOPMENT AUTHORITY, 195 VA. 326, 338-339, 78 S.E.2D 893, 900
901.  SUCH DIVERSIFICATION IN FUTURE USE IS PLAINLY RELEVANT TO THE
MAINTENANCE OF THE DESIRED HOUSING STANDARDS AND THEREFORE WITHIN
CONGRESSIONAL POWER. 

THE DISTRICT COURT BELOW SUGGESTED THAT, IF SUCH A BROAD SCOPE WERE
INTENDED FOR THE STATUTE, THE STANDARDS CONTAINED IN THE ACT WOULD NOT
BE SUFFICIENTLY DEFINITE TO SUSTAIN THE DELEGATION OF AUTHORITY.  117
F. SUPP. 705, 721.  WE DO NOT AGREE.  WE THINK THE STANDARDS PRESCRIBED
WERE ADEQUATE FOR EXECUTING THE PLAN TO ELIMINATE NOT ONLY SLUMS AS
NARROWLY DEFINED BY THE DISTRICT COURT BUT ALSO THE BLIGHTED AREAS THAT
TEND TO PRODUCE SLUMS.  PROPERTY MAY OF COURSE BE TAKEN FOR THIS
REDEVELOPMENT WHICH, STANDING BY ITSELF, IS INNOCUOUS AND UNOFFENDING. 
BUT WE HAVE SAID ENOUGH TO INDICATE THAT IT IS THE NEED OF THE AREA AS
A WHOLE WHICH CONGRESS AND ITS AGENCIES ARE EVALUATING.  IF OWNER AFTER
OWNER WERE PERMITTED TO RESIST THESE REDEVELOPMENT PROGRAMS ON THE
GROUND THAT HIS PARTICULAR PROPERTY WAS NOT BEING USED AGAINST THE
PUBLIC INTEREST, INTEGRATED PLANS FOR REDEVELOPMENT WOULD SUFFER
GREATLY.  THE ARGUMENT PRESSED ON US IS, INDEED, A PLEA TO SUBSTITUTE
THE LANDOWNER'S STANDARD OF THE PUBLIC NEED FOR THE STANDARD PRESCRIBED
BY CONGRESS.  BUT AS WE HAVE ALREADY STATED, COMMUNITY REDEVELOPMENT
PROGRAMS NEED NOT, BY FORCE OF THE CONSTITUTION, BE ON A PIECEMEAL
BASIS - LOT BY LOT, BUILDING BY BUILDING. 

IT IS NOT FOR THE COURTS TO OVERSEE THE CHOICE OF THE BOUNDARY LINE
NOR TO SIT IN REVIEW ON THE SIZE OF A PARTICULAR PROJECT AREA.  ONCE
THE QUESTION OF THE PUBLIC PURPOSE HAS BEEN DECIDED, THE AMOUNT AND
CHARACTER OF LAND TO BE TAKEN FOR THE PROJECT AND THE NEED FOR A
PARTICULAR TRACT TO COMPLETE THE INTEGRATED PLAN RESTS IN THE
DISCRETION OF THE LEGISLATIVE BRANCH.  SEE SHOEMAKER V. UNITED STATES,
147 U.S. 282, 298; UNITED STATES EX REL. T.V.A. V. WELCH, SUPRA, 554;
UNITED STATES V. CARMACK, 329 U.S. 230, 247. 

THE DISTRICT COURT INDICATED GRAVE DOUBTS CONCERNING THE AGENCY'S
RIGHT TO TAKE FULL TITLE TO THE LAND AS DISTINGUISHED FROM THE
OBJECTIONABLE BUILDINGS LOCATED ON IT.  117 F. SUPP. 705, 715-719.  WE
DO NOT SHARE THOSE DOUBTS.  IF THE AGENCY CONSIDERS IT NECESSARY IN
CARRYING OUT THE REDEVELOPMENT PROJECT TO TAKE FULL TITLE TO THE REAL
PROPERTY INVOLVED, IT MAY DO SO.  IT IS NOT FOR THE COURTS TO DETERMINE
WHETHER IT IS NECESSARY FOR SUCCESSFUL CONSUMMATION OF THE PROJECT THAT
UNSAFE, UNSIGHTLY, OR INSANITARY BUILDINGS ALONE BE TAKEN OR WHETHER
TITLE TO THE LAND BE INCLUDED, ANY MORE THAN IT IS THE FUNCTION OF THE
COURTS TO SORT AND CHOOSE AMONG THE VARIOUS PARCELS SELECTED FOR
CONDEMNATION. 

THE RIGHTS OF THESE PROPERTY OWNERS ARE SATISFIED WHEN THEY RECEIVE
THAT JUST COMPENSATION WHICH THE FIFTH AMENDMENT EXACTS AS THE PRICE OF
THE TAKING. 

THE JUDGMENT OF THE DISTRICT COURT, AS MODIFIED BY THIS OPINION, IS
AFFIRMED. 
..END :























NATIONAL UNION OF MARINE COOKS AND STEWARDS V. ARNOLD 348 U.S. 37 


NO. 19.  ARGUED OCTOBER 15, 1954 - DECIDED NOVEMBER 22, 1954 - JUDGMENT
AFFIRMED. 


THE DISMISSAL OF AN APPEAL FROM A MONEY JUDGMENT BY A STATE APPELLATE
COURT AS A REASONABLE MEASURE FOR SAFEGUARDING THE COLLECTIBILITY OF
THAT JUDGMENT DOES NOT VIOLATE THE DUE PROCESS CLAUSE OR THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT; AND, UPON THE FACTS IN
THIS CASE, THE STATE APPELLATE COURT'S DISMISSAL OF PETITIONER'S APPEAL
WAS SUCH A REASONABLE MEASURE.  PP. 38-45. 

1.  NO VIOLATION OF THE EQUAL PROTECTION CLAUSE HAS BEEN SHOWN IN
THIS CASE, BECAUSE THERE HAS BEEN NO SHOWING THAT ANYONE COMPARABLY
SITUATED HAS BEEN TREATED DIFFERENTLY FROM PETITIONER.  P. 41. 

2.  DISMISSAL OF THE APPEAL IN THIS CASE DID NOT VIOLATE THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 41-45. 

(A)  HOVEY V. ELLIOTT, 167 U.S. 409, DISTINGUISHED.  PP. 41-42. 

(B)  WHILE A STATUTORY REVIEW IS IMPORTANT AND MUST BE EXERCISED
WITHOUT DISCRIMINATION, SUCH A REVIEW IS NOT A REQUIREMENT OF DUE
PROCESS.  P. 43. 

(C)  WHERE THE EFFECTIVENESS OF A MONEY JUDGMENT IS JEOPARDIZED BY
THE JUDGMENT DEBTOR, HE HAS NO CONSTITUTIONAL RIGHT TO AN APPEAL
EXTENDING THAT FRUSTRATION.  PP. 43-44. 

3.  DISMISSAL OF PETITIONER'S APPEAL IS NOT REGARDED AS A PENALTY
IMPOSED AS A PUNISHMENT FOR CRIMINAL CONTEMPT.  IT WAS A REASONABLE
METHOD OF SUSTAINING THE EFFECTIVENESS OF THE STATE'S JUDICIAL PROCESS
AS AGAINST THE RIGHTS OF A JUDGMENT DEBTOR WHO APPEALED WITHOUT FILING
A SUPERSEDEAS BOND AND REFUSED TO COMPLY WITH REASONABLE ORDERS
DESIGNED TO SAFEGUARD THE VALUE OF THE JUDGMENT PENDING A DECISION ON
HIS APPEAL.  PP. 44-45. 

NATIONAL UNION OF MARINE COOKS AND STEWARDS V. ARNOLD ET AL. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER A STATE APPELLATE COURT VIOLATES
EITHER THE DUE PROCESS OR THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES WHEN IT DISMISSES AN
APPEAL FROM A MONEY JUDGMENT AS A REASONABLE MEASURE FOR SAFEGUARDING
THE COLLECTIBILITY OF THAT JUDGMENT.  FOR THE REASONS HEREAFTER STATED,
WE HOLD THAT IT DOES NOT AND THAT THE DISMISSAL OF THE APPEAL IN THE
INSTANT CASE WAS SUCH A REASONABLE MEASURE. 

THIS LITIGATION RESULTED FROM A "BLACKLISTING" LETTER WRITTEN BY
HARRIS AS AN AGENT OF PETITIONER, NATIONAL UNION OF MARINE COOKS AND
STEWARDS, IN 1949, TO PERSONS ABLE TO AFFECT THE EMPLOYMENT OF THE 95
RESPONDENTS WHOSE OCCUPATION WAS THAT OF STEWARDS IN THE ALASKA TRADE. 
(FN1) 

IT TOOK THE FOLLOWING COURSE: 

1949 - IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING
COUNTY, RESPONDENTS' LIBEL ACTION AGAINST PETITIONER AND HARRIS,
SEEKING $20,000 DAMAGES FOR EACH RESPONDENT, WAS DISMISSED ON
DEMURRER. 

JUNE 9, 1950 - ON APPEAL TO THE SUPREME COURT OF WASHINGTON, THE
LETTER WAS HELD LIBELOUS PER SE, THE JUDGMENT WAS REVERSED AND THE
CAUSE REMANDED FOR TRIAL.  36 WASH. 2D 557, 219 P.2D 121. 

SEPTEMBER 4, 1951 - IN THE SUPERIOR COURT, A TOTAL JUDGMENT OF
$475,000 WAS RENDERED AGAINST PETITIONER AND HARRIS, AWARDING $5,000 TO
EACH RESPONDENT. 

SEPTEMBER 5, 1951 - IN THE SUPERIOR COURT, PETITIONER AND HARRIS
FILED NOTICES OF APPEAL TO THE SUPREME COURT BUT OFFERED NO SUPERSEDEAS
BOND AND OBTAINED NO STAY OF PROCEEDINGS.  (FN2) 

OCTOBER 19, 1951 - IN THE SUPERIOR COURT, IN THE SAME CASE,
RESPONDENTS BEGAN A SUPPLEMENTAL PROCEEDING TO DISCOVER PETITIONER'S
AVAILABLE ASSETS. 

FEBRUARY 15, 1952 - IN THE SUPERIOR COURT SUPPLEMENTAL PROCEEDING,
THE EVIDENCE DISCLOSED NO SUBSTANTIAL ASSETS OF PETITIONER IN
WASHINGTON BUT SHOWED $298,000 OF UNITED STATES BONDS TO BE IN ITS
POSSESSION IN CALIFORNIA.  THE COURT ORDERED PETITIONER TO DELIVER
THESE BONDS TO THE COURT'S RECEIVER, FOR SAFEKEEPING, PENDING
DISPOSITION OF PETITIONER'S APPEAL. 

APRIL 4, 1952 - IN THE SUPERIOR COURT SUPPLEMENTAL PROCEEDING, UPON
PETITIONER'S FAILURE TO DELIVER THE BONDS, THE COURT ADJUDGED IT IN
CONTEMPT, STATING "THAT SAID CONTEMPTUOUS CONDUCT  ... FRUSTRATES THE
ENFORCEMENT OF THE JUDGMENT HEREIN  ...  AND FRUSTRATES THE
RECEIVERSHIP CREATED HEREIN BY ORDER OF THIS COURT  ...  ."  41 WASH.
2D 22, 24, 246 P.2D 1107, 1108. 

MAY 17, 1952 - THE SUPREME COURT STRUCK FROM ITS CALENDAR
PETITIONER'S APPEAL ON THE MERITS, PENDING ITS REVIEW OF THE
ADJUDICATION OF CONTEMPT "UNLESS THE SAID APPELLANT UNION SOONER PURGES
ITSELF OF THE CONTEMPT  ...  ." 

MAY 26, 1953 - THE SUPREME COURT HELD THAT THE "ADJUDICATION OF
CONTEMPT IS AFFIRMED, AND THE APPEAL PRESENTLY PENDING IN THE MAIN
ACTION SHALL BE DISMISSED UNLESS, WITHIN FIFTEEN DAYS FROM THE DATE OF
THE REMITTITUR HEREIN, THE APPELLANT UNION PURGES ITSELF OF THE ORDER
OF CONTEMPT, BY COMPLYING WITH THE TRIAL COURT'S ORDER REQUIRING
DELIVERY OF THE BONDS TO THE RECEIVER."  42 WASH. 2D 648, 654, 257 P.2D
629, 633. 

MAY 27, 1953 - IN THE SUPREME COURT, RESPONDENTS FILED AN AFFIDAVIT
SHOWING THAT PETITIONER'S DISBURSEMENTS, IN 1952, HAD BEEN $633,391.10,
AS OPPOSED TO ITS RECEIPTS OF $413,280.90, AND THAT ITS TOTAL CASH
ASSETS, AT THE END OF THAT YEAR, HAD SHRUNK TO $90,389.84. 

JUNE 12, 1953 - IN THE SUPREME COURT, RESPONDENTS RENEWED THEIR
MOTION TO DISMISS PETITIONER'S APPEAL IN THE MAIN ACTION.  THEY FILED A
SUPPORTING AFFIDAVIT STATING THAT "ALL OF  ... (PETITIONER'S) ASSETS OF
SUBSTANTIAL VALUE ARE IN CALIFORNIA AND TWO CALIFORNIA COURTS HAVE
REFUSED TO ENTERTAIN SUIT ON THE WASHINGTON JUDGMENT WHILE THIS APPEAL
IS PENDING." 

JULY 3, 1953 - THE SUPREME COURT ORDERED DISMISSAL OF PETITIONER'S
APPEAL UNLESS PETITIONER PURGED ITSELF OF CONTEMPT. 

AUGUST 19, 1953 - THE SUPREME COURT DENIED PETITIONER A REHEARING AND
ENTERED JUDGMENT DISMISSING ITS APPEAL IN THE MAIN ACTION. 

MARCH 8, 1954 - THIS COURT GRANTED CERTIORARI BECAUSE OF THE
SIGNIFICANT RELATION OF THE CONSTITUTIONAL ISSUE TO THE ENFORCEMENT OF
STATE JUDGMENTS.  347 U.S. 916.  (FN3) 

THERE IS NO QUESTION BEFORE US AS TO THE POWER OF THE STATE COURTS OF
WASHINGTON, UNDER ITS LAWS, (1) TO ORDER PETITIONER TO DELIVER THE
SPECIFIED BONDS TO THE RECEIVER, (2) TO ADJUDICATE PETITIONER IN
CONTEMPT FOR FAILURE TO DO SO, OR (3) TO DISMISS PETITIONER'S APPEAL
UPON FAILURE TO PURGE ITSELF OF CONTEMPT BY DELIVERY OF THE BONDS. 
THOSE QUESTIONS HAVE BEEN SETTLED BY THE SUPREME COURT OF WASHINGTON. 
THE QUESTION BEFORE US IS WHETHER THE PROCEDURE WHICH HAS CULMINATED IN
THE DISMISSAL OF PETITIONER'S APPEAL VIOLATES EITHER THE DUE PROCESS OR
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  (FN4) 

WE HAVE NO DIFFICULTY WITH THE EQUAL PROTECTION CLAUSE BECAUSE NO
SHOWING HAS BEEN MADE THAT ANYONE COMPARABLY SITUATED HAS BEEN TREATED
DIFFERENTLY FROM PETITIONER.  THE SIGNIFICANT ISSUE IS WHETHER THE
ACTION OF THE STATE VIOLATES DUE PROCESS OF LAW.  TO DECIDE THIS, WE
CONSIDER FIRST WHETHER, GENERALLY, THE DISMISSAL OF AN APPEAL FROM A
MONEY JUDGMENT AMOUNTS TO DUE PROCESS OF LAW WHERE IT CONSTITUTES A
REASONABLE MEANS OF SAFEGUARDING THE COLLECTIBILITY OF THAT JUDGMENT. 
IF SO, WE MAY THEN CONSIDER WHETHER THE DISMISSAL IN THE INSTANT CASE
CONSTITUTED SUCH A MEANS. 

THE CONSTITUTIONAL OBJECTION RAISED BY PETITIONER WAS LONG AGO
CONSIDERED IN HOVEY V. ELLIOTT, 167 U.S. 409.  IN THAT CASE, THE
SUPREME COURT OF THE DISTRICT OF COLUMBIA WENT FURTHER AND ATTEMPTED TO
DEPRIVE A DEFENDANT OF HIS RIGHT TO ANSWER THE SUIT BROUGHT AGAINST
HIM.  HAVING STRICKEN DEFENDANT'S ANSWER, THE COURT ENTERED JUDGMENT
AGAINST HIM AS A PUNISHMENT FOR HIS REFUSAL TO DELIVER TO A COURT
APPOINTED RECEIVER CERTAIN FUNDS WHICH WERE THE SUBJECT MATTER OF THE
LITIGATION.  WHEN THE STATE OF NEW YORK LATER REFUSED TO HONOR THAT
JUDGMENT, THIS COURT, IN AFFIRMING THE ACTION OF THE COURT OF APPEALS
OF NEW YORK, HELD THAT THE DISTRICT OF COLUMBIA HAD DEPRIVED DEFENDANT
OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW BY DENYING HIM HIS
CONSTITUTIONAL RIGHT TO A DAY IN COURT.  (FN5) 

THE INSTANT CASE DOES NOT GO SO FAR.  HERE THE PETITIONER HAS HAD ITS
DAY IN COURT.  THE DISMISSAL HAS CUT OFF ONLY A STATUTORY RIGHT OF
REVIEW AFTER A FULL TRIAL BY JUDGE AND JURY.  IN HOVEY V. ELLIOTT,
SUPRA, THIS DISTINCTION WAS ANTICIPATED AND ROOM WAS LEFT OPEN FOR A
LATER CONSIDERATION OF CASES LIKE THE ONE BEFORE US.  (FN6) 

WHILE A STATUTORY REVIEW IS IMPORTANT AND MUST BE EXERCISED WITHOUT
DISCRIMINATION, SUCH A REVIEW IS NOT A REQUIREMENT OF DUE PROCESS. 
DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617, 627; OHIO V. AKRON PARK
DISTRICT, 281 U.S. 74, 80; REETZ V. MICHIGAN, 188 U.S. 505, 508; MCKANE
V. DURSTON, 153 U.S. 684, 687-688. 

WHILE THIS COURT HAS NOT, UNTIL NOW, PASSED UPON THE
CONSTITUTIONALITY OF A STATE COURT'S DISMISSAL OF AN APPEAL IN A CASE
LIKE THE PRESENT, IT HAS DECIDED SOMEWHAT COMPARABLE ISSUES.  WHERE THE
SUBJECT MATTER OF LITIGATION HAS BEEN REMOVED OR HAS REMOVED ITSELF
FROM THE JURISDICTION OF A STATE COURT IN VIOLATION OF THAT COURT'S
ORDERS, THIS COURT HAS UPHELD A DISMISSAL OF THE OFFENDING LITIGANT'S
APPEAL.  FOR EXAMPLE, WHERE A PRISONER HAS ESCAPED FROM CUSTODY WHILE
HIS APPEAL IS PENDING, THIS COURT HAS UPHELD A DISMISSAL OF HIS
APPEAL.  CF. EISLER V. UNITED STATES, 338 U.S. 189, AND 883. 
SIMILARLY, AFTER A STATE PRISONER'S RECAPTURE, THIS COURT HAS SUSTAINED
A STATE COURT'S REFUSAL TO REVIVE HIS APPEAL.  ALLEN V. GEORGIA, 166
U.S. 138.  SEE ALSO, SMITH V. UNITED STATES, 94 U.S. 97; WASHINGTON V.
HANDY, 27 WASH. 469, 67 P. 1094; PEOPLE V. GENET, 59 N.Y. 80;
MASSACHUSETTS V. ANDREWS, 97 MASS. 543.  (FN7) 

THE CIRCUMSTANCES BEFORE US ARE, IN SOME DEGREE, COMPARABLE.  THE
ORDER HERE VIOLATED WAS ISSUED IN A SUPPLEMENTAL PROCEEDING TO DISCOVER
AND SAFEGUARD PROPERTY OF PETITIONER, WITHOUT WHICH THE JUDGMENT WOULD
HAVE LITTLE OR NO VALUE.  PETITIONER'S FAILURE TO DELIVER THE SPECIFIED
OUT-OF-STATE PROPERTY TO THE COURT'S RECEIVER FRUSTRATED THE STATE
COURT MUCH AS THE ESCAPE OF A PRISONER WOULD FRUSTRATE IT IN ATTEMPTING
TO REVIEW HIS CONVICTION.  WHERE THE EFFECTIVENESS OF A MONEY JUDGMENT
IS JEOPARDIZED BY THE JUDGMENT DEBTOR, HE HAS NO CONSTITUTIONAL RIGHT
TO AN APPEAL EXTENDING THAT FRUSTRATION. 

THE DISMISSAL HERE IS NOT REGARDED BY US AS A PENALTY IMPOSED AS A
PUNISHMENT FOR CRIMINAL CONTEMPT.  IT IS AN EXERCISE OF A STATE COURT'S
INHERENT POWER TO USE ITS PROCESSES TO INDUCE COMPLIANCE WITH A
SUPPLEMENTAL ORDER REASONABLY ISSUED IN AID OF EXECUTION.  FURTHERMORE,
THE APPEAL WAS NOT SUMMARILY DISMISSED.  PETITIONER WAS ALLOWED 15
DAYS, AFTER BEING ADJUDGED IN CONTEMPT, WITHIN WHICH TO PURGE ITSELF. 
THE PROPRIETY OF THE DISMISSAL AND ITS REMEDIAL NATURE ARE DEMONSTRATED
BY THE SITUATION IN CALIFORNIA.  TWO PROCEEDINGS BROUGHT THERE BY
RESPONDENTS TO REACH PETITIONER'S ASSETS IN CALIFORNIA EVIDENTLY WERE
FRUSTRATED BY THE INSISTENCE OF THE CALIFORNIA COURTS THAT THEY WOULD
NOT ENTERTAIN ANY SUIT ON THE WASHINGTON JUDGMENT WHILE AN APPEAL FROM
THAT JUDGMENT WAS PENDING IN WASHINGTON. 

THE SUPPLEMENTAL PROCEEDING INDICATED THAT THE $298,000 IN BONDS, TO
WHICH THE COURT DIRECTED ITS ORDER, CONSTITUTED THE ONLY SUBSTANTIAL
ASSET FROM WHICH PAYMENT OF RESPONDENTS' JUDGMENT MIGHT BE REALIZED AND
THAT THIS ASSET MIGHT BE DISSIPATED UNLESS PLACED IN PROTECTIVE
CUSTODY. 

IN APPRAISING THE REASONABLENESS OF THE STATE'S ORDER, IT IS
NOTEWORTHY THAT THE COURT DID NOT SEEK TO APPLY THE BONDS TO THE
SATISFACTION OF RESPONDENTS' JUDGMENT.  IT MERELY DIRECTED PETITIONER
TO DELIVER THEM TO THE COURT'S RECEIVER FOR SAFEKEEPING.  PETITIONER'S
APPEAL WAS NOT DISMISSED BECAUSE OF PETITIONER'S FAILURE TO SATISFY A
JUDGMENT PENDING AN APPEAL FROM IT.  IT WAS DISMISSED BECAUSE OF
PETITIONER'S FAILURE TO COMPLY WITH THE COURT'S ORDER TO SAFEGUARD
PETITIONER'S ASSETS FROM DISSIPATION PENDING SUCH APPEAL. 

VIEWING THE DISMISSAL OF PETITIONER'S APPEAL IN THE LIGHT OF ITS
REASONABLENESS IN SUSTAINING THE EFFECTIVENESS OF A STATE'S JUDICIAL
PROCESS, AS AGAINST THE RIGHTS OF A JUDGMENT DEBTOR, WITHOUT FILING A
SUPERSEDEAS BOND, TO REFUSE TO COMPLY WITH ORDERS SAFEGUARDING THE
VALUE OF THAT JUDGMENT, WE FIND NOTHING THAT VIOLATES DUE PROCESS OF
LAW. 

THE JUDGMENT OF THE SUPREME COURT OF THE STATE OF WASHINGTON,
ACCORDINGLY, IS AFFIRMED. 

FN1  IT STATED: 

"ENCLOSED IS A LIST OF FORMER MEMBERS OF THE NATIONAL UNION OF MARINE
COOKS AND STEWARDS, WHO DESERTED THIS UNION DURING THE 1948 MARITIME
STRIKE AND ATTEMPTED TO ORGANIZE A DUAL ORGANIZATION UNDER THE
LEADERSHIP OF THE SAILORS UNION OF THE PACIFIC FOR THE PURPOSE OF
BREAKING OUR STRIKE AND DESTROYING OUR UNION. 

"WHILE THESE RENEGADES HAVE BEEN COMPLETELY DISCREDITED AND DEFEATED,
THEY MAY ATTEMPT TO OBTAIN EMPLOYMENT IN OTHER SECTIONS OF THE
INDUSTRY, PARTICULARLY WHEN THE FISHING SEASON OPENS. 

"THIS INFORMATION IS ONLY FOR YOUR GUIDANCE AND FORMULATION TO YOUR
MEMBERSHIP AS TO THE CONSTRUCTIVE WAYS AND MEANS OF CARRYING ON A
PROGRESSIVE LABOR ORGANIZATION."  ARNOLD V. NATIONAL UNION, 36 WASH. 2D
557, 559, 219 P.2D 121, 122. 

FN2  TO STAY PROCEEDINGS ON APPEAL, A SUPERSEDEAS BOND FOR DOUBLE THE
AMOUNT OF THE DAMAGES AND COSTS WOULD HAVE BEEN REQUIRED.  WASH. REV.
CODE, 1951, SEC. 4.88.060. 

FN3  TWO CONFIRMATORY RULINGS HAD INTERVENED: 

NOVEMBER 16, 1953 - IN THIS COURT, PETITIONER'S APPEAL FROM THE
ADJUDICATION OF CONTEMPT IN THE SUPPLEMENTAL PROCEEDING WAS DISMISSED
FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION.  346 U.S. 881. 

FEBRUARY 2, 1954 - IN THE SUPREME COURT, HARRIS' SEPARATE APPEAL,
RAISING LARGELY THE SAME ISSUES ON THE MERITS AS PETITIONER'S APPEAL,
WAS HEARD AND THE JUDGMENT AGAINST HIM AFFIRMED.  44 WASH. 2D 183, 265
P.2D 1051. 

FN4  "  ...  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."  U.S. CONST.,
AMEND. XIV, SEC. 1. 

FN5  THE DEPRIVATION OF A LITIGANT'S RIGHT TO PRESENT A DEFENSE HAS
BEEN UPHELD, NOT AS A PUNISHMENT FOR CONTEMPT AS PROHIBITED IN HOVEY V.
ELLIOTT, SUPRA, BUT RATHER AS A RESULT OF THE LITIGANT'S FAILURE TO
PRODUCE EVIDENCE, HIS VIOLATION OF A RULE OF PROCEDURE, OR OTHER ACTION
JUSTIFYING A JUDGMENT OF DEFAULT AGAINST HIM.  HAMMOND PACKING CO. V.
ARKANSAS, 212 U.S. 322, 349-354; PEITZMAN V. ILLMO, 141 F.2D 956, 960
961.  SEE ALSO, BENNETT V. BENNETT, 208 U.S. 505, 514; YOUNG & HOLLAND
CO. V. BRANDE BROS., 162 F. 663; LAWSON V. BLACK DIAMOND COAL MINING
CO., 44 WASH. 26, 86 P. 1120. 

FN6  "  ...  THE DIFFERENCE BETWEEN THE WANT OF POWER, ON THE ONE
HAND, TO REFUSE TO ONE IN CONTEMPT THE RIGHT TO DEFEND IN THE PRINCIPAL
CASE ON THE MERITS, AND THE EXISTENCE OF THE AUTHORITY, ON THE OTHER,
TO REFUSE TO ACCORD A FAVOR TO ONE IN CONTEMPT, IS CLEARLY ILLUSTRATED
BY THE WHOLE LINE OF ADJUDICATED CASES.           *         *         *
   *         * 

"  ... IN AFFIRMING THE JUDGMENT OF THE SUPREME COURT OF GEORGIA
(ALLEN V. GEORGIA, 166 U.S. 138, 140), THE COURT CALLED ATTENTION TO
THE DISTINCTION BETWEEN THE INHERENT RIGHT OF DEFENCE SECURED BY THE
DUE PROCESS OF LAW CLAUSE OF THE CONSTITUTION AND THE MERE GRACE OR
FAVOR GIVING AUTHORITY TO REVIEW A JUDGMENT BY WAY OF ERROR OR APPEAL. 

     *         *         *         *         * 

"WHETHER IN THE EXERCISE OF ITS POWER TO PUNISH FOR A CONTEMPT A
COURT WOULD BE JUSTIFIED IN REFUSING TO PERMIT ONE IN CONTEMPT FROM
AVAILING HIMSELF OF A RIGHT GRANTED BY STATUTE, WHERE THE REFUSAL DID
NOT INVOLVE THE FUNDAMENTAL RIGHT OF ONE SUMMONED IN A CAUSE TO BE
HEARD IN HIS DEFENCE, AND WHERE THE ONE IN CONTEMPT WAS AN ACTOR
INVOKING THE RIGHT ALLOWED BY STATUTE, IS A QUESTION NOT INVOLVED IN
THIS SUIT."  167 U.S., AT 423-424, 443, 444. 

FN7  FOR A SIMILAR RULE IN CUSTODY CASES, SEE CASEBOLT V. BUTLER, 175
KY. 381, 194 S.W.  305; LINDSAY V. LINDSAY, 255 ILL. 442, 99 N.E. 608;
HENDERSON V. HENDERSON, 329 MASS.  257, 107 N.E.2D 773.  IN CIVIL
ACTIONS, WHERE THE PRESENCE OF A DEFENDANT WITHIN THE JURISDICTION OF A
COURT IS ESSENTIAL TO ENFORCEMENT OF ITS DECREE AND HE ABSENTS HIMSELF
FROM THAT JURISDICTION, DISMISSAL OF HIS APPEAL HAS BEEN UPHELD.  BRONK
V. BRONK, 46 FLA.  474, 35 SO. 870. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

IN HOVEY V. ELLIOTT, 167 U.S. 409, DECIDED IN 1897, THIS COURT HELD
THAT DUE PROCESS OF LAW WAS DENIED BY A TRIAL COURT WHICH HAD REFUSED
TO PERMIT A DEFENDANT TO TRY HIS CASE ON THE MERITS MERELY BECAUSE THE
DEFENDANT HAD DISOBEYED THE COURT'S ORDER TO PAY INTO THE COURT'S
REGISTRY MONEY WHICH WAS THE SUBJECT MATTER OF THE CONTROVERSY.  THIS
COURT SAID THAT SUCH A DENIAL OF ALL RIGHT TO DEFEND WOULD CONVERT THE
COURT INTO AN INSTRUMENT OF WRONG AND OPPRESSION.  THE APPEAL HERE WAS
DISMISSED BY THE WASHINGTON SUPREME COURT ON THE SINGLE GROUND THAT
PETITIONER HAD DISOBEYED A COURT ORDER TO TURN OVER CERTAIN BONDS WHICH
WERE NOT EVEN THE SUBJECT MATTER OF THIS LAWSUIT.  I THINK THE HOVEY V.
ELLIOTT DOCTRINE APPLIES WITH EQUAL FORCE TO THIS DISMISSAL.  TRUE THIS
COURT HAS SAID THAT A STATE IS NOT CONSTITUTIONALLY REQUIRED TO PROVIDE
A SYSTEM OF APPELLATE COURT REVIEW.  BUT SINCE WASHINGTON HAS DONE SO,
PROCEEDINGS IN ITS SUPREME COURT ARE MERELY THE FINAL STEP IN THE
JUDICIAL PROCESS IN TRYING CASES AND THEREFORE CANNOT BE CONDUCTED SO
AS TO DENY THAT "DUE PROCESS" WHICH THE FOURTEENTH AMENDMENT REQUIRES. 
COLE V. ARKANSAS, 333 U.S. 196, 201-202, AND CASES THERE CITED.  AND
WASHINGTON ALSO MUST ABIDE BY THE FOURTEENTH AMENDMENT'S EQUAL
PROTECTION COMMAND IN DECIDING WHO CAN AND WHO CANNOT APPEAL.  COCHRAN
V. KANSAS, 316 U.S. 255. 

STATE LEGISLATURES HAVE BROAD POWER TO FORBID VARIED TYPES OF CONDUCT
AND TO PROVIDE FOR PUNISHMENT BY COURTS.  BUT THE POWER TO PUNISH FOR
VIOLATION OF ADMITTEDLY VALID STATUTES IS NOT UNLIMITED.  STATE
PUNISHMENTS MUST NOT OBLITERATE CLEARLY GRANTED FEDERAL RIGHTS.  SEE,
E.G., HILL V. FLORIDA, 325 U.S. 538, 543.  I SUPPOSE NO ONE WOULD
CONTEND THAT A DEFENDANT CONVICTED OF SUCH CONVENTIONAL CRIMES AS
LARCENY OR EMBEZZLEMENT COULD BE PUNISHED BY COMPELLING HIM TO GIVE UP
HIS RELIGIOUS FAITH.  THE RIGHT OF A PERSON TO BE HEARD IN HIS OWN
DEFENSE STANDS ON AN EQUALLY FIRM CONSTITUTIONAL BASE.  IN MCVEIGH V.
UNITED STATES, 11 WALL.  259, 267, THIS COURT SAID THAT TO DENY AN
"ALIEN ENEMY" A RIGHT TO DEFEND HIMSELF "WOULD BE A BLOT UPON OUR
JURISPRUDENCE AND CIVILIZATION."  IT WAS THERE SAID THAT A
CONSTITUTIONAL RIGHT TO DEFEND IS INSEPARABLE FROM A LIABILITY TO BE
SUED.  AND I CAN SEE NO REASON WHY THE SAME PRINCIPLE IS NOT EQUALLY
APPLICABLE IN EACH COURT WHERE RIGHTS ARE PASSED UPON.  THE APPEAL HERE
WAS BUT A CONTINUATION OF PETITIONER'S DEFENSE WHICH BEGAN IN THE TRIAL
COURT.  BUT PETITIONER WAS DENIED ANY OPPORTUNITY TO DEFEND ITSELF IN
THE APPELLATE COURT BECAUSE IT HAD DISOBEYED A COURT ORDER.  BY
WHATEVER OTHER NAME IT MAY BE CALLED, THE DISMISSAL WAS PUNISHMENT.  I
DO NOT THINK THE WASHINGTON LEGISLATURE COULD PROVIDE THIS KIND OF
PUNISHMENT FOR DISOBEDIENCE OF A COURT ORDER OR FOR ANY OTHER CRIME,
AND CERTAINLY THE STATE COURT'S POWER TO DO SO IS NO GREATER THAN THAT
OF THE STATE'S LEGISLATURE.  HOVEY V. ELLIOTT, SUPRA, AT 417-418. 

IN SUMMARY, PETITIONER HAVING BEEN HALED INTO COURT AS A DEFENDANT
HAS BEEN DENIED AN OPPORTUNITY TO DEFEND ITSELF IN A COURT THAT HAD
POWER FINALLY TO DECIDE WHETHER PETITIONER SHOULD PAY MONEY TO
PLAINTIFFS WHO SUED.  THE PURPOSE WAS PUNISHMENT FOR AN OFFENSE HAVING
NO RELATION AT ALL TO THE MERITS OF THE PLAINTIFF'S CLAIM OR TO THE
PETITIONER'S DEFENSE.  FROM THE BEGINNING, DUE PROCESS AND EQUAL
PROTECTION HAVE MEANT THAT EVERY DEFENDANT MUST BE PERMITTED TO DEFEND
HIMSELF IN ANY COURT WHERE HIS ANTAGONIST CAN APPEAR AND PROSECUTE. 
THIS RIGHT OF DEFENSE BELONGS TO ALL - GOOD OR BAD, ONE WHO HAS
VIOLATED LAWS THE SAME AS ONE WHO HAS NOT.  I WOULD REVERSE THIS CASE. 

..END :







CHANDLER V. FRETAG 348 U.S. 3 


NO. 39.  ARGUED OCTOBER 18, 1954 - DECIDED NOVEMBER 8, 1954 - REVERSED. 


PETITIONER WAS INDICTED FOR HOUSEBREAKING AND LARCENY, WHICH WAS
PUNISHABLE BY IMPRISONMENT FOR THREE TO TEN YEARS.  AT HIS TRIAL IN A
STATE COURT, HE WAS ADVISED ORALLY FOR THE FIRST TIME THAT, BECAUSE OF
THREE PRIOR CONVICTIONS FOR FELONIES, HE WOULD BE TRIED ALSO AS AN
HABITUAL CRIMINAL AND IF CONVICTED WOULD BE SENTENCED TO LIFE
IMPRISONMENT.  HE ASKED FOR A CONTINUANCE TO ENABLE HIM TO OBTAIN
COUNSEL ON THE HABITUAL CRIMINAL ACCUSATION; BUT THIS WAS DENIED AND HE
WAS FORCED TO STAND TRIAL IMMEDIATELY AND WITHOUT COUNSEL.  HE PLEADED
GUILTY TO HOUSEBREAKING AND LARCENY, WAS CONVICTED ON BOTH THAT CHARGE
AND THE HABITUAL CRIMINAL ACCUSATION, AND WAS SENTENCED TO THREE YEARS
ON THE FORMER CHARGE AND TO LIFE IMPRISONMENT ON THE LATTER.  HELD:  BY
DENYING PETITIONER ANY OPPORTUNITY TO OBTAIN COUNSEL ON THE HABITUAL
CRIMINAL ACCUSATION, THE TRIAL COURT DEPRIVED HIM OF THE DUE PROCESS OF
LAW GUARANTEED BY THE FOURTEENTH AMENDMENT.  PP. 4-10. 

(A)  BY WAIVING COUNSEL ON THE HOUSEBREAKING AND LARCENY CHARGE,
PETITIONER DID NOT WAIVE ANY RIGHT TO COUNSEL ON THE HABITUAL CRIMINAL
ACCUSATION.  PP. 6-9. 

(B)  REGARDLESS OF WHETHER PETITIONER WOULD HAVE BEEN ENTITLED TO
HAVE COUNSEL APPOINTED BY THE COURT, HIS RIGHT TO BE HEARD THROUGH HIS
OWN COUNSEL WAS UNQUALIFIED.  BETTS V. BRADY, 316 U.S. 455,
DISTINGUISHED.  PP. 9-10. 

CHANDLER V. WARDEN FRETAG. 

CERTIORARI TO THE SUPREME COURT OF TENNESSEE. 

AFTER SERVING A SENTENCE OF THREE YEARS FOR HOUSEBREAKING AND
LARCENY, PETITIONER APPLIED TO A TENNESSEE CIRCUIT COURT FOR RELEASE ON
A WRIT OF HABEAS CORPUS FROM A LIFE SENTENCE AS AN HABITUAL CRIMINAL. 
THIS WAS DENIED AND THE SUPREME COURT OF TENNESSEE AFFIRMED.  THIS
COURT GRANTED CERTIORARI.  347 U.S. 933.  REVERSED, P. 10. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS HELD IN THE CUSTODY OF RESPONDENT, WARDEN OF THE
TENNESSEE STATE PENITENTIARY, UNDER A SENTENCE OF LIFE IMPRISONMENT AS
AN HABITUAL CRIMINAL.  CHALLENGING THE VALIDITY OF THAT SENTENCE UNDER
THE FOURTEENTH AMENDMENT, HE COMMENCED THIS ACTION IN THE TENNESSEE
COURTS TO OBTAIN HIS FREEDOM.  WE GRANTED CERTIORARI, 347 U.S. 933,
BECAUSE OF THE SUBSTANTIAL QUESTION PRESENTED BY HIS CONSTITUTIONAL
CLAIM. 

THE BASIC FACTS ARE UNDISPUTED.  PETITIONER IS A MIDDLE-AGED NEGRO OF
LITTLE EDUCATION.  HE WAS INDICTED ON MARCH 10, 1949, FOR THE OFFENSE
OF HOUSEBREAKING AND LARCENY, AN OFFENSE PUNISHABLE BY A TERM OF THREE
TO TEN YEARS.  THE INDICTMENT CHARGED HIM WITH BREAKING AND ENTERING A
BUSINESS HOUSE AND STEALING THEREFROM SUNDRY ITEMS OF THE AGGREGATE
VALUE OF $3.  FOLLOWING HIS ARREST, PETITIONER WAS RELEASED ON BOND
WHILE AWAITING TRIAL SET FOR MAY 17, 1949.  ON THAT DAY, WITHOUT AN
ATTORNEY AND WITHOUT NOTICE OF ANY HABITUAL CRIMINAL ACCUSATION AGAINST
HIM, PETITIONER APPEARED IN COURT INTENDING TO PLEAD GUILTY TO THE
INDICTMENT.  HE "FELT THAT AN ATTORNEY COULD DO HIM NO GOOD ON SAID
CHARGE (HOUSEBREAKING AND LARCENY)."  WHEN HIS CASE WAS CALLED FOR
TRIAL, HE WAS ORALLY ADVISED BY THE TRIAL JUDGE THAT HE WOULD ALSO BE
TRIED AS AN HABITUAL CRIMINAL BECAUSE OF THREE ALLEGED PRIOR FELONIES. 
(FN1)  HE WAS INFORMED THAT CONVICTION UNDER THE TENNESSEE HABITUAL
CRIMINAL ACT CARRIES A MANDATORY SENTENCE OF LIFE IMPRISONMENT WITH NO
POSSIBILITY OF PAROLE.  (FN2)  PETITIONER PROMPTLY ASKED FOR A
CONTINUANCE TO ENABLE HIM TO OBTAIN COUNSEL ON THE HABITUAL CRIMINAL
ACCUSATION.  HIS REQUEST WAS SUMMARILY DENIED, A JURY WAS IMPANELED,
AND THE CASE PROCEEDED IMMEDIATELY TO TRIAL.  PETITIONER ENTERED HIS
PLEA OF GUILTY TO THE HOUSEBREAKING AND LARCENY CHARGE, AND THE
PROSECUTION INTRODUCED EVIDENCE IN CORROBORATION OF THE PLEA.  AT THE
CONCLUSION OF THE TRIAL, THE JUDGE INSTRUCTED THE JURY TO RAISE THEIR
RIGHT HANDS IF THEY ACCEPTED PETITIONER'S GUILTY PLEA ON THE
HOUSEBREAKING AND LARCENY CHARGE AND IF THEY APPROVED OF A THREE-YEAR
SENTENCE ON THAT CHARGE.  THE JURY RESPONDED BY RAISING THEIR RIGHT
HANDS.  THE JUDGE THEN INSTRUCTED THE JURY TO RAISE THEIR RIGHT HANDS A
SECOND TIME IF THEY FOUND PETITIONER TO BE AN HABITUAL CRIMINAL.  ONCE
AGAIN THE JURY, WITHOUT EVER HAVING LEFT THE JURY BOX, RAISED THEIR
RIGHT HANDS.  THE ENTIRE PROCEEDING - FROM THE IMPANELING OF THE JURY
TO THE PASSING OF SENTENCE - CONSUMED BETWEEN FIVE AND TEN MINUTES. 

THREE YEARS LATER, HAVING SERVED HIS SENTENCE ON THE HOUSEBREAKING
AND LARCENY CHARGE, PETITIONER APPLIED TO THE CIRCUIT COURT OF KNOX
COUNTY FOR HABEAS CORPUS RELIEF.  (FN3)  HE ALLEGED THAT HIS SENTENCE
AS AN HABITUAL CRIMINAL WAS INVALID ON THE GROUND, AMONG OTHERS, THAT
HE HAD BEEN DENIED AN OPPORTUNITY TO OBTAIN COUNSEL IN HIS DEFENSE. 
(FN4)  AT A HEARING ON THE APPLICATION, PETITIONER, HIS WIFE, HIS
BROTHER, A JUROR, AND THE PROSECUTING ATTORNEY TESTIFIED AS TO THEIR
RECOLLECTION OF PETITIONER'S TRIAL.  (FN5)  ALL FIVE WITNESSES WERE IN
FULL ACCORD AS TO THE ABOVE-STATED FACTS.  THEY DIFFERED ONLY ON
WHETHER PETITIONER HAD PLEADED GUILTY TO THE HABITUAL CRIMINAL
ACCUSATION AND WHETHER THE PROSECUTION HAD INTRODUCED ANY EVIDENCE
CONCERNING PETITIONER'S PRIOR CONVICTIONS.  THE PROSECUTING ATTORNEY,
THE ONLY WITNESS FOR THE STATE, TESTIFIED THAT PETITIONER HAD PLEADED
GUILTY TO THE HABITUAL CRIMINAL ACCUSATION AS WELL AS THE HOUSEBREAKING
AND LARCENY CHARGE, AND THAT THE RECORD OF PETITIONER'S PRIOR
CONVICTIONS HAD BEEN READ TO THE JURY; THE OTHER FOUR WITNESSES DENIED
IT.  IN ALL OTHER RESPECTS, THE TESTIMONY OF THE PROSECUTING ATTORNEY
SUBSTANTIATED THE TESTIMONY OF THE OTHER FOUR WITNESSES.  THUS HE
CONCEDED THAT PETITIONER HAD NOT BEEN REPRESENTED BY COUNSEL, THAT
PETITIONER HAD NOT BEEN GIVEN ANY PRETRIAL NOTICE OF THE HABITUAL
CRIMINAL ACCUSATION, THAT PETITIONER "SAID HE WANTED THE CASE PUT OFF
AS HE WAS ADVISED BY THE COURT THAT HE WAS BEING TRIED AS AN HABITUAL
CRIMINAL IN ADDITION TO HOUSE BREAKING AND LARCENY.  HE ASKED THAT THE
CASE BE PUT OFF SO HE COULD GET A LAWYER AND THE TRIAL JUDGE TOLD HIM
HE HAD HAD SINCE JANUARY UP TO MAY TO GET A LAWYER." 

THE CIRCUIT COURT, AFTER HEARING THE CASE ON THE MERITS, ACCEPTED -
AS DOES THE RESPONDENT HERE - PETITIONER'S FACTUAL ALLEGATIONS AS TO
THE DENIAL OF COUNSEL.  THE CIRCUIT COURT NEVERTHELESS UPHELD THE
VALIDITY OF PETITIONER'S SENTENCE AND THE TENNESSEE SUPREME COURT
AFFIRMED.  BOTH COURTS EMPHASIZED THAT THE TENNESSEE HABITUAL CRIMINAL
ACT, LIKE SIMILAR LEGISLATION IN OTHER STATES, DOES NOT CREATE A
SEPARATE OFFENSE BUT ONLY ENHANCES A DEFENDANT'S PUNISHMENT ON BEING
CONVICTED OF HIS FOURTH FELONY.  TIPTON V. STATE, 160 TENN.  664, 672
678, 28 S.W.2D 635, 637-639.  SEE ALSO MCDONALD V. MASSACHUSETTS, 180
U.S. 311, 313; GRAHAM V. WEST VIRGINIA, 224 U.S. 616, 623-624.  FROM
THAT PREMISE, THE COURTS BELOW REASONED THAT PETITIONER HAD WAIVED ANY
RIGHT TO COUNSEL ON THE HABITUAL CRIMINAL ACCUSATION BY WAIVING COUNSEL
ON THE HOUSEBREAKING AND LARCENY CHARGE.  WITH THIS CONCLUSION, WE
CANNOT AGREE. 

DETAIL.  (FN6)  SECTION 7 PRESCRIBES STANDARDS FOR THE ADMISSIBILITY OF
THE RECORD OF THE PRIOR CONVICTIONS OF A DEFENDANT CHARGED WITH BEING A
HABITUAL CRIMINAL.  (FN7)  THIS SECTION, THE TENNESSEE SUPREME COURT
HAS HELD, CLEARLY AUTHORIZES "AN ISSUE OF FACT AS TO THE VERITY OF SUCH
RECORD, OR AS TO THE IDENTITY OF THE ACCUSED WITH THE PERSON NAMED IN
SUCH RECORD  ...  ."  TIPTON V. STATE, 160 TENN. 664, 678, 28 S.W.2D
635, 639.  PROOF OF THE DEFENDANT'S PRIOR CONVICTIONS IS "  ...  A
CONDITION PRECEDENT TO THE IMPOSITION OF THE INCREASED PUNISHMENT
PROVIDED."  TIPTON V. STATE, SUPRA.  SECTION 6 OF THE ACT, MOREOVER,
PROVIDES THAT THE INCREASED PUNISHMENT CANNOT BE IMPOSED UNLESS THE
JURY SPECIALLY FINDS THAT THE DEFENDANT IS AN HABITUAL CRIMINAL AS
CHARGED.  (FN8)  "UNDER SECTION 6 OF THE ACT," ACCORDING TO THE
TENNESSEE SUPREME COURT, "THE QUESTION AS TO WHETHER THE DEFENDANT IS
AN HABITUAL CRIMINAL IS ONE FOR THE JURY TO DECIDE."  MCCUMMINGS V.
STATE, 175 TENN. 309, 311, 134 S.W.2D 151, 152.  IN SHORT, EVEN THOUGH
THE ACT DOES NOT CREATE A SEPARATE OFFENSE, ITS APPLICABILITY TO ANY
DEFENDANT CHARGED WITH BEING AN HABITUAL CRIMINAL MUST BE DETERMINED BY
A JURY IN A JUDICIAL HEARING.  COMPARE WILLIAMS V. NEW YORK, 337 U.S.
241.  THAT HEARING AND THE TRIAL ON THE FELONY CHARGE, ALTHOUGH THEY
MAY BE CONDUCTED IN A SINGLE PROCEEDING, ARE ESSENTIALLY INDEPENDENT OF
EACH OTHER.  (FN9)  THUS, FOR EXAMPLE, IT IS POSSIBLE THAT THE JURY IN
THE INSTANT CASE MIGHT HAVE FOUND PETITIONER GUILTY ON THE
HOUSEBREAKING AND LARCENY CHARGE AND YET FOUND HIM INNOCENT OF BEING AN
HABITUAL CRIMINAL.  APPARENTLY RECOGNIZING THIS POSSIBILITY, PETITIONER
AT THE EARLIEST POSSIBLE MOMENT AFFIRMATIVELY SOUGHT AN OPPORTUNITY TO
OBTAIN COUNSEL ON THE HABITUAL CRIMINAL ACCUSATION.  IMMEDIATELY ON
BEING INFORMED OF THE ACCUSATION AND SUDDENLY FINDING HIMSELF IN DANGER
OF LIFE IMPRISONMENT, HE REQUESTED A CONTINUANCE SO THAT HE COULD
ENGAGE THE SERVICES OF AN ATTORNEY; BUT THE TRIAL COURT REFUSED THE
REQUEST AND FORCED HIM TO STAND IMMEDIATE TRIAL.  ON THESE UNDISPUTED
FACTS, IT IS CLEAR BEYOND QUESTION THAT PETITIONER DID NOT WAIVE
COUNSEL ON THE HABITUAL CRIMINAL ACCUSATION.  SEE RICE V. OLSON, 324
U.S. 786, 788-789. 

THE TENNESSEE ATTORNEY GENERAL DENIES, HOWEVER, THAT PETITIONER HAD
ANY FEDERAL CONSTITUTIONAL RIGHT TO COUNSEL.  HE RELIES ON THE DOCTRINE
ENUNCIATED IN BETTS V. BRADY, 316 U.S. 455.  BUT THAT DOCTRINE HAS NO
APPLICATION HERE.  PETITIONER DID NOT ASK THE TRIAL JUDGE TO FURNISH
HIM COUNSEL; RATHER, HE ASKED FOR A CONTINUANCE SO THAT HE COULD OBTAIN
HIS OWN.  THE DISTINCTION IS WELL ESTABLISHED IN THIS COURT'S
DECISIONS.  POWELL V. ALABAMA, 287 U.S. 45, 71; BETTS V. BRADY, 316
U.S. 455, 466, 468; HOUSE V. MAYO, 324 U.S. 42, 46.  REGARDLESS OF
WHETHER PETITIONER WOULD HAVE BEEN ENTITLED TO THE APPOINTMENT OF
COUNSEL, HIS RIGHT TO BE HEARD THROUGH HIS OWN COUNSEL WAS
UNQUALIFIED.  (FN10) SEE PALKO V. CONNECTICUT, 302 U.S. 319, 324-325. 
AS THIS COURT STATED OVER 20 YEARS AGO IN POWELL V. ALABAMA, SUPRA, AT
68-69: 

"WHAT, THEN, DOES A HEARING INCLUDE?  HISTORICALLY AND IN PRACTICE,
IN OUR OWN COUNTRY AT LEAST, IT HAS ALWAYS INCLUDED THE RIGHT TO THE
AID OF COUNSEL WHEN DESIRED AND PROVIDED BY THE PARTY ASSERTING THE
RIGHT.  THE RIGHT TO BE HEARD WOULD BE, IN MANY CASES, OF LITTLE AVAIL
IF IT DID NOT COMPREHEND THE RIGHT TO BE HEARD BY COUNSEL.  EVEN THE
INTELLIGENT AND EDUCATED LAYMAN HAS SMALL AND SOMETIMES NO SKILL IN THE
SCIENCE OF LAW.  IF CHARGED WITH CRIME, HE IS INCAPABLE, GENERALLY, OF
DETERMINING FOR HIMSELF WHETHER THE INDICTMENT IS GOOD OR BAD.  HE IS
UNFAMILIAR WITH THE RULES OF EVIDENCE.  LEFT WITHOUT THE AID OF COUNSEL
HE MAY BE PUT ON TRIAL WITHOUT A PROPER CHARGE, AND CONVICTED UPON
INCOMPETENT EVIDENCE, OR EVIDENCE IRRELEVANT TO THE ISSUE OR OTHERWISE
INADMISSIBLE.  HE LACKS BOTH THE SKILL AND KNOWLEDGE ADEQUATELY TO
PREPARE HIS DEFENSE, EVEN THOUGH HE HAVE A PERFECT ONE.  HE REQUIRES
THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE PROCEEDINGS AGAINST
HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE FACES THE DANGER OF
CONVICTION BECAUSE HE DOES NOT KNOW HOW TO ESTABLISH HIS INNOCENCE.  IF
THAT BE TRUE OF MEN OF INTELLIGENCE, HOW MUCH MORE TRUE IS IT OF THE
IGNORANT AND ILLITERATE, OR THOSE OF FEEBLE INTELLECT.  IF IN ANY CASE,
CIVIL OR CRIMINAL, A STATE OR FEDERAL COURT WERE ARBITRARILY TO REFUSE
TO HEAR A PARTY BY COUNSEL, EMPLOYED BY AND APPEARING FOR HIM, IT
REASONABLY MAY NOT BE DOUBTED THAT SUCH A REFUSAL WOULD BE A DENIAL OF
A HEARING, AND, THEREFORE, OF DUE PROCESS IN THE CONSTITUTIONAL
SENSE." 

A NECESSARY COROLLARY IS THAT A DEFENDANT MUST BE GIVEN A REASONABLE
OPPORTUNITY TO EMPLOY AND CONSULT WITH COUNSEL; OTHERWISE, THE RIGHT TO
BE HEARD BY COUNSEL WOULD BE OF LITTLE WORTH.  AVERY V. ALABAMA, 308
U.S. 444, 446; HOUSE V. MAYO, 324 U.S. 42, 46; WHITE V. RAGEN, 324 U.S.
760, 764; HAWK V. OLSON, 326 U.S. 271, 277-278.  BY DENYING PETITIONER
ANY OPPORTUNITY WHATEVER TO OBTAIN COUNSEL ON THE HABITUAL CRIMINAL
ACCUSATION, THE TRIAL COURT DEPRIVED HIM OF DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT. 

IT FOLLOWS THAT PETITIONER IS BEING HELD BY RESPONDENT UNDER AN
INVALID SENTENCE.  THE JUDGMENT BELOW, SUSTAINING THE DENIAL OF HABEAS
CORPUS RELIEF, IS ACCORDINGLY REVERSED.  JUDGMENT REVERSED. 

FN1  THE TENNESSEE HABITUAL CRIMINAL ACT, AT THE TIME OF PETITIONER'S
TRIAL, PERMITTED AN ORAL ACCUSATION.  WILLIAMS' TENN. CODE, 1934 (1949
SUPP.), SEC. 11863.5.  IT WAS SUBSEQUENTLY AMENDED TO REQUIRE THE
INCLUSION OF THE ACCUSATION IN THE INDICTMENT ON THE SUBSTANTIVE
OFFENSE.  TENN. CODE, 1932 (1950 SUPP.), SEC. 11863.5. 

FN2  WILLIAMS' TENN. CODE, 1934 (1949 SUPP.), SEC. 11863.2. 

FN3  UNDER TENNESSEE LAW, A DEFENDANT SENTENCED ON BOTH A FELONY
CHARGE AND AN HABITUAL CRIMINAL ACCUSATION MUST SERVE HIS TERM ON THE
FELONY CHARGE BEFORE HE CAN ATTACK THE VALIDITY OF HIS HABITUAL
CRIMINAL SENTENCE IN HABEAS CORPUS PROCEEDINGS.  SEE STATE EX REL.
GRANDSTAFF V. GORE, 182 TENN. 94, 98, 184 S.W.2D 366, 367. 

FN4  PETITIONER ALSO ALLEGED, WHOLLY APART FROM HIS CLAIM OF DENIAL
OF COUNSEL, THAT HE WAS DEPRIVED OF DUE PROCESS BY THE FAILURE OF THE
TRIAL COURT TO GIVE HIM ANY PRETRIAL NOTICE OF THE HABITUAL CRIMINAL
ACCUSATION.  WE FIND IT UNNECESSARY TO PASS ON THIS CONTENTION IN VIEW
OF OUR DISPOSITION OF THE CASE.  WE ALSO NOTE THAT IN 1950, SUBSEQUENT
TO PETITIONER'S TRIAL, THE TENNESSEE HABITUAL CRIMINAL ACT WAS AMENDED
TO REQUIRE PRETRIAL NOTICE.  TENN. CODE, 1932 (1950 SUPP.), SEC.
11863.5. 

FN5  THE RECORD OF PETITIONER'S TRIAL CONSISTS ONLY OF THE INDICTMENT
AND THE JUDGMENT OF CONVICTION.  THERE WAS NO STENOGRAPHIC TRANSCRIPT
OF THE PROCEEDINGS.  THE JUDGMENT RECITES THAT PETITIONER HAD "COUNSEL
PRESENT," BUT IT IS CONCEDED THAT THE RECITAL IS NOT TRUE. 

FN6  WILLIAMS' TENN. CODE, 1934 (1949 SUPP.), SEC. 11863.1: 

"ANY PERSON WHO HAS EITHER BEEN THREE TIMES CONVICTED WITHIN THIS
STATE OF FELONIES, TWO OF WHICH, UNDER SECTION 11762 OF THE CODE OF
TENNESSEE, RENDERED HIM INFAMOUS, OR WHICH WERE HAD UNDER SECTIONS
10777, 10778, 10788, 10790 AND 10797 OF SAID CODE, OR WHICH WERE FOR
MURDER IN THE FIRST DEGREE, RAPE, KIDNAPPING FOR RANSOM, TREASON OR
OTHER CRIME PUNISHABLE BY DEATH UNDER EXISTING LAWS, BUT FOR WHICH THE
DEATH PENALTY WAS NOT INFLICTED, OR WHO HAS BEEN THREE TIMES CONVICTED
UNDER THE LAWS OF ANY OTHER STATE, GOVERNMENT OR COUNTRY OF CRIMES, TWO
OF WHICH, IF THEY HAD BEEN COMMITTED IN THIS STATE, WOULD HAVE RENDERED
HIM INFAMOUS, OR WOULD HAVE BEEN PUNISHABLE UNDER SAID SECTIONS 10777,
10778, 10788, 10790 AND 10797 OF SAID CODE, OR WOULD HAVE BEEN MURDER
IN THE FIRST DEGREE, RAPE, KIDNAPPING FOR RANSOM, TREASON OR OTHER
CRIME PUNISHABLE BY DEATH UNDER EXISTING LAWS, BUT FOR WHICH THE DEATH
PENALTY WAS NOT INFLICTED, SHALL BE CONSIDERED FOR THE PURPOSES OF THIS
ACT, AND IS HEREBY DECLARED TO BE AN HABITUAL CRIMINAL, PROVIDED THAT
PETIT LARCENY SHALL NOT BE COUNTED AS ONE OF SUCH THREE CONVICTIONS,
BUT IS EXPRESSLY EXCLUDED, AND PROVIDED FURTHER THAT EACH OF SUCH THREE
CONVICTIONS SHALL BE FOR SEPARATE OFFENSES, COMMITTED AT DIFFERENT
TIMES, AND ON SEPARATE OCCASIONS."    FN7  WILLIAMS' TENN. CODE, 1934
(1949 SUPP.), SEC. 11863.7. 

FN8  WILLIAMS' TENN. CODE, 1934 (1949 SUPP.), SEC. 11863.6. 

FN9  COMPARE, E.G., THE WEST VIRGINIA PROCEDURE WHICH PROVIDES FOR A
SEPARATE HEARING ON THE HABITUAL CRIMINAL ISSUE.  SEE GRAHAM V. WEST
VIRGINIA, 224 U.S. 616. 

FN10  TENNESSEE STATUTES APPEAR TO CONFER BOTH RIGHTS ON A DEFENDANT
IN A CRIMINAL CASE.  TENN. CODE, 1932, SECS. 11733, 11734, 11547,
11548.  SEE ALSO ART. I, SEC. 9, OF THE DECLARATION OF RIGHTS IN THE
TENNESSEE CONSTITUTION. 
..END :




OFFUTT V. UNITED STATES 348 U.S. 11 


NO. 27.  ARGUED OCTOBER 22, 1954 - DECIDED NOVEMBER 8, 1954 - 93 U.S.
APP. D.C. 148, 208 F.2D 842, REVERSED. 


IN A CRIMINAL TRIAL IN A FEDERAL DISTRICT COURT, THE JUDGE BECAME
PERSONALLY EMBROILED WITH THE DEFENSE COUNSEL IN A PROTRACTED WRANGLE,
DURING WHICH THE JUDGE DISPLAYED PERSONAL ANIMOSITY AND A LACK OF
PROPER JUDICIAL RESTRAINT.  AT THE CLOSE OF THE TRIAL, ACTING UNDER
RULE 42(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, THE JUDGE
SUMMARILY FOUND THE DEFENSE COUNSEL GUILTY OF CRIMINAL CONTEMPT FOR
"CONTUMACIOUS, AND UNETHICAL CONDUCT  ...  DURING THE TRIAL" AND
ORDERED HIM COMMITTED FOR TEN DAYS.  THE COURT OF APPEALS, WHILE
AGREEING THAT COUNSEL WAS GUILTY OF REPREHENSIBLE MISCONDUCT, FOUND
THAT "APPELLANT'S CONDUCT CANNOT FAIRLY BE CONSIDERED APART FROM THAT
OF THE TRIAL JUDGE," AND REDUCED THE PUNISHMENT TO 48 HOURS IN
AFFIRMING THE CONVICTION.  HELD:  IN THE EXERCISE OF THIS COURT'S
SUPERVISORY AUTHORITY OVER THE ADMINISTRATION OF CRIMINAL JUSTICE IN
THE FEDERAL COURTS, THE CONTEMPT CONVICTION IS SET ASIDE AND THE CAUSE
IS REMANDED TO THE DISTRICT COURT WITH A DIRECTION THAT THE CONTEMPT
CHARGES BE RETRIED BEFORE A DIFFERENT JUDGE.  COOKE V. UNITED STATES,
267 U.S. 517.  PP. 11-18. 

OFFUTT V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON REVIEW OF A MODIFIED AFFIRMANCE BY THE COURT OF
APPEALS OF AN ORDER BY THE DISTRICT COURT SUMMARILY COMMITTING THE
PETITIONER FOR CRIMINAL CONTEMPT. 

THE PROCEEDING GREW OUT OF THE TRIAL OF ONE PECKHAM FOR ABORTION
UNDER D.C. CODE, 1951, SEC. 22-201, 31 STAT. 1322.  THE PETITIONER WAS
PECKHAM'S TRIAL COUNSEL.  ALMOST FROM THE OUTSET, A CLASH BETWEEN THE
PRESIDING JUDGE AND PETITIONER BECAME MANIFEST, WHICH, IT IS FAIR TO
SAY, COLORED THE COURSE OF THE TRIAL THROUGHOUT ITS 14 DAYS, AND WITH
INCREASING PERSONAL OVERTONES.  THE JUDGE AGAIN AND AGAIN ADMONISHED
PETITIONER FOR WHAT HE DEEMED DISREGARD FOR RULINGS AND OTHER BEHAVIOR
OUTSIDE THE ALLOWABLE LIMITS OF AGGRESSIVE ADVOCACY, AND WARNED HIM OF
THE CONSEQUENCES BY WAY OF PUNISHMENT FOR CONTEMPT WHICH SUCH CONDUCT
INVITED.  ON THE OTHER HAND, THESE INTERCHANGES BETWEEN COURT AND
COUNSEL WERE MARKED BY EXPRESSIONS AND REVEALED AN ATTITUDE WHICH
HARDLY REFLECTED THE RESTRAINTS OF CONVENTIONAL JUDICIAL DEMEANOR. 
SUCH CHARACTERIZATION OF NECESSITY DERIVES FROM AN ABIDING IMPRESSION
LEFT FROM A READING OF THE ENTIRE RECORD. 

AT THE CLOSE OF THE TRIAL, AFTER THE JURY HAD RETIRED FOR
DELIBERATION, THE JUDGE, ACTING UNDER THE PROCEDURE PRESCRIBED BY RULE
42(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE (FN1) AND INVOKING THE
AUTHORITY OF SACHER V. UNITED STATES, 343 U.S. 1, FOUND THE PETITIONER
GUILTY OF CRIMINAL CONTEMPT ON THE BASIS OF A CERTIFICATE FILED UNDER
THE RULE, CONTAINING 12 FINDINGS OF "CONTUMACIOUS, AND UNETHICAL
CONDUCT IN OPEN COURT DURING THE TRIAL," AND ORDERED HIM COMMITTED FOR
10 DAYS TO THE CUSTODY OF THE UNITED STATES MARSHAL FOR THE DISTRICT OF
COLUMBIA. 

THE COURT OF APPEALS FOUND THAT FOUR OF THE 12 FINDINGS AMPLY
SUPPORTED THE COMMITMENT, BUT REDUCED THE PUNISHMENT FROM 10 DAYS TO 48
HOURS.  IT CONCLUDED THAT "THE RECORD DOES NOT SUPPORT THE PENALTY
IMPOSED.  APPELLANT'S CONDUCT CANNOT FAIRLY BE CONSIDERED APART FROM
THAT OF THE TRIAL JUDGE.  EACH RESPONDED TO GREAT PROVOCATION FROM THE
OTHER.  THE JUDGE'S TREATMENT OF APPELLANT, EXAMPLES OF WHICH ARE
INCLUDED IN THE APPENDIX TO OUR OPINION IN PECKHAM V. UNITED STATES,
U.S. APP. D.C., - F.2D - , AND WHICH IS THE CHIEF FACTOR IN LEADING A
MAJORITY OF THIS COURT TO CONCLUDE THAT PECKHAM'S CONVICTION CANNOT
STAND, LEADS US ALL TO CONCLUDE THAT APPELLANT'S SENTENCE SHOULD BE
REDUCED FROM 10 DAYS TO 48 HOURS."  93 U.S. APP. D.C. 148, 150, 208
F.2D 842, 843-844.  AS INDICATED ABOVE, THE COURT OF APPEALS REVERSED
PECKHAM'S CONVICTION BECAUSE IT FOUND THAT THE JUDGE'S BEHAVIOR BARRED
THE COURT "FROM SUSTAINING THE JUDGMENT AS THE PRODUCT OF A FAIR AND
IMPARTIAL TRIAL."  PECKHAM V. UNITED STATES, 93 U.S. APP. D.C. 136,
145, 210 F.2D 693, 702. 

IN VIEW OF THIS COURT'S "SUPERVISORY AUTHORITY OVER THE
ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL COURTS," MCNABB V.
UNITED STATES, 318 U.S. 332, 341, AND THE IMPORTANCE OF ASSURING ALERT
SELF-RESTRAINT IN THE EXERCISE BY DISTRICT JUDGES OF THE SUMMARY POWER
FOR PUNISHING CONTEMPT, WE BROUGHT THE CASE HERE.  347 U.S. 932. 

WE SHALL NOT RETRACE THE GROUND SO RECENTLY COVERED IN THE SACHER
CASE, SUPRA.  IN ENFORCING RULE 42(A), THE COURT IN THAT CASE
EMPHASIZED ITS DUTY TO SAFEGUARD TWO INDISPENSABLE CONDITIONS TO THE
FAIR ADMINISTRATION OF CRIMINAL JUSTICE:  (1) COUNSEL MUST BE PROTECTED
IN THE RIGHT OF AN ACCUSED TO "FEARLESS, VIGOROUS AND EFFECTIVE"
ADVOCACY, NO MATTER HOW UNPOPULAR THE CAUSE IN WHICH IT IS EMPLOYED;
(2) EQUALLY SO WILL THIS COURT "PROTECT THE PROCESSES OF ORDERLY TRIAL,
WHICH IS THE SUPREME OBJECT OF THE LAWYER'S CALLING."  343 U.S., AT 13
14.  RULE 42(A) WAS NOT AN INNOVATION.  IT DID NOT CONFER POWER UPON
DISTRICT JUDGES NOT POSSESSED PRIOR TO MARCH 21, 1946.  327 U.S. 821. 
"THIS RULE," THE ADVISORY COMMITTEE ON THE RULES OF CRIMINAL PROCEDURE
STATED, "IS SUBSTANTIALLY A RESTATEMENT OF EXISTING LAW, EX PARTE
TERRY, 128 U.S. 289; COOKE V. UNITED STATES, 267 U.S. 517, 534."  THE
PITH OF THIS RATHER EXTRAORDINARY POWER TO PUNISH WITHOUT THE
FORMALITIES REQUIRED BY THE BILL OF RIGHTS FOR THE PROSECUTION OF
FEDERAL CRIMES GENERALLY, IS THAT THE NECESSITIES OF THE ADMINISTRATION
OF JUSTICE REQUIRE SUCH SUMMARY DEALING WITH OBSTRUCTIONS TO IT.  IT IS
A MODE OF VINDICATING THE MAJESTY OF LAW, IN ITS ACTIVE MANIFESTATION,
AGAINST OBSTRUCTIONS AND OUTRAGE.  THE POWER THUS ENTRUSTED TO A JUDGE
IS WHOLLY UNRELATED TO HIS PERSONAL SENSIBILITIES, BE THEY TENDER OR
RUGGED.  BUT JUDGES ALSO ARE HUMAN, AND MAY, IN A HUMAN WAY, QUITE
UNWITTINGLY IDENTIFY OFFENSE TO SELF WITH OBSTRUCTION TO LAW. 
ACCORDINGLY, THIS COURT HAS DEEMED IT IMPORTANT THAT DISTRICT JUDGES
GUARD AGAINST THIS EASY CONFUSION BY NOT SITTING THEMSELVES IN JUDGMENT
UPON MISCONDUCT OF COUNSEL WHERE THE CONTEMPT CHARGED IS ENTANGLED WITH
THE JUDGE'S PERSONAL FEELING AGAINST THE LAWYER. 

OF COURSE PERSONAL ATTACKS OR INNUENDOES BY A LAWYER AGAINST A JUDGE,
WITH A VIEW TO PROVOKING HIM, ONLY AGGRAVATE WHAT MAY BE AN OBSTRUCTION
TO THE TRIAL.  THE VITAL POINT IS THAT IN SITTING IN JUDGMENT ON SUCH A
MISBEHAVING LAWYER THE JUDGE SHOULD NOT HIMSELF GIVE VENT TO PERSONAL
SPLEEN OR RESPOND TO A PERSONAL GRIEVANCE.  THESE ARE SUBTLE MATTERS,
FOR THEY CONCERN THE INGREDIENTS OF WHAT CONSTITUTES JUSTICE. 
THEREFORE, JUSTICE MUST SATISFY THE APPEARANCE OF JUSTICE. 

DULY MINDFUL OF THE FACT THAT THE EXERCISE OF THE POWER OF SUMMARY
PUNISHMENT FOR CONTEMPT "IS A DELICATE ONE AND CARE IS NEEDED TO AVOID
ARBITRARY OR OPPRESSIVE CONCLUSIONS," THIS COURT IN COOKE V. UNITED
STATES, SUPRA, WITHOUT IN THE SLIGHTEST CONDONING CONTEMPTUOUS BEHAVIOR
ON THE PART OF A LAWYER, DEEMED IT DESIRABLE THAT "WHERE CONDITIONS DO
NOT MAKE IT IMPRACTICABLE, OR WHERE THE DELAY MAY NOT INJURE PUBLIC OR
PRIVATE RIGHT, A JUDGE CALLED UPON TO ACT IN A CASE OF CONTEMPT BY
PERSONAL ATTACK UPON HIM, MAY, WITHOUT FLINCHING FROM HIS DUTY,
PROPERLY ASK THAT ONE OF HIS FELLOW JUDGES TAKE HIS PLACE."  267 U.S.,
AT 539. 

THE GOVERNMENT HAS VIGOROUSLY PRESSED UPON US THE LEEWAY THAT MUST BE
ALLOWED TO A TRIAL JUDGE IN ASSESSING THE NECESSITIES OF SUCH A
SITUATION.  WE DO NOT MEAN TO IMPRISON THE DISCRETION OF JUDGES WITHIN
RIGID MECHANICAL RULES.  THE NATURE OF THE PROBLEM PRECLUDES IT.  NOR
ARE WE UNMINDFUL OF THE FACT THAT THE ULTIMATE FINDING OF REPREHENSIBLE
MISCONDUCT BY PETITIONER WAS SUSTAINED BY THE COURT OF APPEALS.  THAT
GREAT WEIGHT IS TO BE GIVEN TO THE FINDINGS OF FACT BY THE TWO LOWER
COURTS IS A RULE OF WISDOM IN THE EXERCISE OF THE REVIEWING POWER OF
THIS COURT.  BUT IN THE ENFORCEMENT OF THE RULE IT IS IMPORTANT TO
DISCRIMINATE BETWEEN MORE OR LESS SUBORDINATE FACTS LEADING TO A
JUDGMENT OF THEIR LEGAL SIGNIFICANCE, AND A CONCLUSION - THOUGH
CONCURRED IN BY TWO COURTS - THAT MAY IN FACT IMPLY A STANDARD OF LAW
ON WHICH JUDGMENT ON THE CASE IN ITS ENTIRETY IS BASED.  BAUMGARTNER V.
UNITED STATES, 322 U.S. 665, 670-671; UNITED STATES V. APPALACHIAN
ELEC.  POWER CO., 311 U.S. 377, 403-404.  WE ARE NOT INTIMATING THAT
THE COURT OF APPEALS WAS NOT JUSTIFIED IN FINDING AMPLE SUPPORT FOR ITS
CONCLUSION THAT THE TRIAL JUDGE WAS WARRANTED IN DEEMING PETITIONER'S
CONDUCT AS SUCH CONTEMPTUOUS.  THE REAL ISSUE IS WHETHER UNDER THE
DECISION OF THE COOKE CASE SUCH A RULING SHOULD HAVE BEEN MADE BY THE
TRIAL JUDGE, OR WHETHER FOR THE VERY PURPOSE OF VINDICATING JUSTICE FOR
WHICH THE POWER OF SUMMARY CONTEMPT IS AVAILABLE, THE DETERMINATION OF
PETITIONER'S GUILT AND THE PUNISHMENT PROPERLY TO BE METED OUT ON A
FINDING OF GUILT SHOULD HAVE BEEN MADE IN THE FIRST INSTANCE BY A JUDGE
NOT INVOLVED, AS WAS THIS TRIAL JUDGE, IN THE PETITIONER'S MISCONDUCT. 

THE FACT THAT THE COURT OF APPEALS REDUCED THE SENTENCE FROM 10 DAYS
TO 48 HOURS BECAUSE THE PETITIONER'S CONDUCT "CANNOT FAIRLY BE
CONSIDERED APART FROM THAT OF THE TRIAL JUDGE," IS COMPELLING PROOF
THAT THE LATTER FAILED TO REPRESENT THE IMPERSONAL AUTHORITY OF LAW. 
PLAINLY, THE COURT OF APPEALS THOUGHT THAT IN THE TRIAL COURT'S
DISPOSITION OF THE MISCONDUCT OF THE PETITIONER THERE WAS AN INFUSION
OF PERSONAL ANIMOSITY.  AND INDEED THAT COURT FOUND THAT SUCH WAS THE
FACT ON A FULL CONSIDERATION OF THE RECORD IN THE PECKHAM CASE AND FOR
THAT REASON REVERSED PECKHAM'S CONVICTION.  THAT COURT SPOKE OF "THE
EXCESSIVE INJECTION OF THE TRIAL JUDGE INTO THE EXAMINATION OF
WITNESSES, HIS NUMEROUS COMMENTS TO DEFENSE COUNSEL, INDICATING AT
TIMES HOSTILITY, THOUGH UNDER PROVOCATION," WHICH IT CONCLUDED
"DEMONSTRATED A BIAS AND LACK OF IMPARTIALITY."  PECKHAM V. UNITED
STATES, SUPRA, 93 U.S. APP. D.C., AT 145, 210 F.2D, AT 702. 

IT BEARS REPEATING THAT THE WHOLE RECORD AMPLY SUPPORTS THIS
CHARACTERIZATION OF THE TRIAL JUDGE BY THE COURT OF APPEALS.  (FN2)
AND HIS FEELING TOWARD THE LAWYER ON WHOM HE HAD TO PASS SENTENCE IS
REVEALED BY HIS STATEMENT TO THE JURY IN DISCHARGING THEM.  (FN3) 

THE QUESTION WITH WHICH WE ARE CONCERNED IS NOT THE REPREHENSIBILITY
OF PETITIONER'S CONDUCT AND THE CONSEQUENCES WHICH HE SHOULD SUFFER. 
OUR CONCERN IS WITH THE FAIR ADMINISTRATION OF JUSTICE.  THE RECORD
DISCLOSES NOT A RARE FLARE-UP, NOT A SHOW OF EVANESCENT IRRITATION - A
MODICUM OF QUICK TEMPER THAT MUST BE ALLOWED EVEN JUDGES.  THE RECORD
IS PERSUASIVE THAT INSTEAD OF REPRESENTING THE IMPERSONAL AUTHORITY OF
LAW, THE TRIAL JUDGE PERMITTED HIMSELF TO BECOME PERSONALLY EMBROILED
WITH THE PETITIONER.  THERE WAS AN INTERMITTENTLY CONTINUOUS WRANGLE ON
AN UNEDIFYING LEVEL BETWEEN THE TWO.  FOR ONE REASON OR ANOTHER THE
JUDGE FAILED TO IMPOSE HIS MORAL AUTHORITY UPON THE PROCEEDINGS.  HIS
BEHAVIOR PRECLUDED THAT ATMOSPHERE OF AUSTERITY WHICH SHOULD ESPECIALLY
DOMINATE A CRIMINAL TRIAL AND WHICH IS INDISPENSABLE FOR AN APPROPRIATE
SENSE OF RESPONSIBILITY ON THE PART OF COURT, COUNSEL AND JURY.  SUCH
AN ATMOSPHERE WILL ALSO MAKE FOR DISPATCH INSOFAR AS IS CONSONANT WITH
A FAIR TRIAL.  THE MANNER IN WHICH THIS TRIAL WAS CONDUCTED DOUBTLESS
CONTRIBUTED TO THE WASTEFULNESS OF 14 TRIAL DAYS FOR A CASE OF SUCH
LIMITED SCOPE AS WAS THE PECKHAM PROSECUTION. 

WE CONCLUDE THAT APPLICATION OF THE RULE PRONOUNCED IN COOKE V.
UNITED STATES IS CALLED FOR.  THE FACT THAT THE COURT OF APPEALS HERE
REDUCED THE SENTENCE IMPOSED BY THE TRIAL JUDGE DOES NOT TAKE THIS
SITUATION OUT OF THE MORAL AND JUDICIAL CONSIDERATIONS EXPOUNDED ON
BEHALF OF THE COURT BY MR. CHIEF JUSTICE TAFT.  TO SANCTION SUCH A
COURSE OF PROCEDURE WOULD GIVE IT ENCOURAGEMENT.  IN THE LANGUAGE OF
THE COOKE CASE, WITH ONE APPROPRIATE CHANGE, "WE THINK, THEREFORE, THAT
WHEN THIS CASE AGAIN REACHES THE DISTRICT COURT TO WHICH IT MUST BE
REMANDED, THE JUDGE WHO IMPOSED THE SENTENCE HEREIN SHOULD INVITE THE
CHIEF JUDGE OF THE DISTRICT COURT TO ASSIGN ANOTHER JUDGE TO SIT IN THE
SECOND HEARING OF THE CHARGE AGAINST THE PETITIONER."  SEE 267 U.S., AT
539.  REVERSED. 

FN1  "RULE 42.  CRIMINAL CONTEMPT. 

"(A)  SUMMARY DISPOSITION.  A CRIMINAL CONTEMPT MAY BE PUNISHED
SUMMARILY IF THE JUDGE CERTIFIES THAT HE SAW OR HEARD THE CONDUCT
CONSTITUTING THE CONTEMPT AND THAT IT WAS COMMITTED IN THE ACTUAL
PRESENCE OF THE COURT.  THE ORDER OF CONTEMPT SHALL RECITE THE FACTS
AND SHALL BE SIGNED BY THE JUDGE AND ENTERED OF RECORD." 

FN2  FOR OUR PURPOSES IT WILL BE SUFFICIENT TO QUOTE TWO SPECIFIC
INSTANCES: 

"THE COURT:  MOTION DENIED.  PROCEED. 

"MR. OFFUTT:  I OBJECT TO YOUR HONOR YELLING AT ME AND RAISING YOUR
VOICE LIKE THAT. 

"THE COURT:  JUST A MOMENT.  IF YOU SAY ANOTHER WORD I WILL HAVE THE
MARSHAL STICK A GAG IN YOUR MOUTH."  (R. 215.) 

"THE COURT:  DON'T ARGUE WITH THE COURT. 

"MR. OFFUTT:  I AM NOT ARGUING WITH THE COURT, YOUR HONOR. 

"THE COURT:  DON'T ANSWER BACK TO THE COURT, EITHER. 

"MR. OFFUTT:  OH, I THOUGHT YOUR HONOR - I AM MERELY TRYING TO
PRESENT MY POINT. 

"THE COURT:  PROCEED WITH THE NEXT QUESTION. 

"MR. OFFUTT:  THANK YOU, YOUR HONOR. 

"YOUR HONOR, I OBJECT TO YOUR RAISING YOUR VOICE LIKE THAT AND
SHOUTING AT ME, AND I URGE YOUR HONOR NOT TO DO IT. 

"THE COURT:  WELL, YOU ARE MISBEHAVING, MR. OFFUTT. 

"MR. OFFUTT:  AND I HAVE A RIGHT: 

"THE COURT:  AND IT IS MY FUNCTION TO HOLD THE REINS TIGHT AND
PRESERVE ORDER AND DECORUM IN THE COURTROOM. 

"MR. OFFUTT:  BUT DO NOT YELL AT ME, YOUR HONOR. 

"AND I SUBMIT I AM ENTITLED, AND MY DUTY IS TO MAKE OBJECTIONS AND TO
STATE FOR THE RECORD, AND I AM PUTTING MY OBJECTIONS ON THE RECORD. 

"THE COURT:  YOU HAVE FORFEITED YOUR RIGHT TO BE TREATED WITH THE
COURTESY THAT THIS COURT EXTENDS TO ALL MEMBERS OF THE BAR."  (R.
250.) 

FN3  "I ALSO REALIZE THAT YOU HAD A DIFFICULT AND DISAGREEABLE TASK
IN THIS CASE.  YOU HAVE BEEN COMPELLED TO SIT THROUGH A DISGRACEFUL AND
DISREPUTABLE PERFORMANCE ON THE PART OF A LAWYER WHO IS UNWORTHY OF
BEING A MEMBER OF THE PROFESSION; AND I, AS A MEMBER OF THE LEGAL
PROFESSION, BLUSH THAT WE SHOULD HAVE SUCH A SPECIMEN IN OUR MIDST." 
(R. 260.) 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS JOIN IN THE OPINION OF THE
COURT AND CONCUR IN THE REVERSAL AND REMAND OF THE CASE FOR HEARING
BEFORE ANOTHER JUDGE.  THEY WOULD GO FURTHER, HOWEVER, AND DIRECT THAT
PETITIONER BE ACCORDED A JURY TRIAL, FOR REASONS SET OUT IN THEIR
DISSENTS IN SACHER V. UNITED STATES, 343 U.S. 1, 14-23, AND ISSERMAN V.
ETHICS COMMITTEE, 345 U.S. 927.    MR. JUSTICE REED AND MR. JUSTICE
BURTON DISSENT.  THEY WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS
ON THE BASIS OF ITS OPINION. 

MR. JUSTICE MINTON, DISSENTING. 

THIS CASE GOES BACK TO THE DISTRICT COURT FOR HEARING BY ANOTHER
JUDGE ON CHARGES AS TO WHICH, ON THE RECORD, THIS COURT ADMITS
PETITIONER IS GUILTY.  IT IS ONLY A QUESTION OF HOW MUCH PUNISHMENT HE
SHALL RECEIVE.  TWO DAYS, UNDER ALL THE CIRCUMSTANCES, DID NOT SEEM TOO
MUCH TO THE COURT OF APPEALS THAT REVIEWED THE CONDUCT OF JUDGE AND
COUNSEL, NOR DOES IT TO ME.  I WOULD NOT, AFTER SACHER, APPLY THE COOKE
CASE TO THE CIRCUMSTANCES OF THIS PROCEEDING.  THE WRIT OF CERTIORARI
SHOULD BE DISMISSED AS IMPROVIDENTLY GRANTED. 
..END :












MCALLISTER V. UNITED STATES 348 U.S. 19 


NO. 23.  ARGUED OCTOBER 19, 1954 - DECIDED NOVEMBER 8, 1954 - 207 F.2D
952, REVERSED. 


1.  IN REVIEWING A JUDGMENT OF A FEDERAL DISTRICT COURT, SITTING
WITHOUT A JURY IN ADMIRALTY, AN APPELLATE COURT EXERCISES NO GREATER
SCOPE OF REVIEW THAN IT EXERCISES UNDER RULE 52(A) OF THE FEDERAL RULES
OF CIVIL PROCEDURE.  A REVIEWING COURT MAY NOT SET ASIDE THE JUDGMENT
BELOW UNLESS IT IS "CLEARLY ERRONEOUS."  PP. 20-21. 

2.  ON THE RECORD IN THIS CASE UNDER THE SUITS IN ADMIRALTY ACT, THE
EVIDENCE WAS SUFFICIENT TO SUSTAIN THE FINDING OF THE DISTRICT COURT
THAT PETITIONER CONTRACTED POLIO AS A RESULT OF THE NEGLIGENCE OF THE
MASTER OF HIS SHIP IN TAKING ABOARD, TRANSPORTING AND EXPOSING THE CREW
TO CONTACTS WITH, CHINESE SOLDIERS, TRUCK DRIVERS AND MECHANICS FROM
SHANGHAI, WHERE THE MASTER KNEW POLIO TO BE PREVALENT; AND THE DISTRICT
COURT'S JUDGMENT FOR PETITIONER WAS NOT "CLEARLY ERRONEOUS."   PP. 21
23. 

MCALLISTER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER BROUGHT SUIT AGAINST THE UNITED STATES UNDER THE SUITS
IN ADMIRALTY ACT, 46 U.S.C. SEC. 741 ET SEQ., TO RECOVER DAMAGES FOR
NEGLIGENCE IN CREATING CONDITIONS ABOARD SHIP WHEREBY HE CONTRACTED
POLIO AND FOR NEGLIGENCE IN THE TREATMENT THEREOF.  THE DISTRICT COURT,
SITTING WITHOUT A JURY, MADE FINDINGS OF FACT AND STATED ITS
CONCLUSIONS OF LAW THEREON (ADMIRALTY RULES, NO. 46 1/2) IN WHICH IT
FOUND THE RESPONDENT NOT GUILTY OF NEGLIGENCE IN THE TREATMENT OF THE
PETITIONER AFTER HE BECAME ILL, BUT FOUND IT GUILTY OF NEGLIGENCE IN
PERMITTING CONDITIONS TO EXIST ON BOARD SHIP WHICH WERE CONDUCIVE TO
THE TRANSMISSION OF POLIO WHEREBY THE PETITIONER WAS UNDULY EXPOSED AND
THEREBY CONTRACTED THE DISEASE.  JUDGMENT FOR DAMAGES WAS ENTERED
AGAINST RESPONDENT, AND ON APPEAL THE COURT OF APPEALS REVERSED ON THE
GROUND THAT NO PROXIMATE CASE WAS SHOWN BETWEEN THE NEGLIGENCE AND THE
CONTRACTION OF POLIO.  207 F.2D 952.  WE GRANTED CERTIORARI.  347 U.S.
932. 

THE FIRST QUESTION PRESENTED IS WHETHER THE COURT OF APPEALS IN
REVIEWING THE DISTRICT COURT'S FINDINGS APPLIED PROPER STANDARDS.  IN
REVIEWING A JUDGMENT OF A TRIAL COURT, SITTING WITHOUT A JURY IN
ADMIRALTY, THE COURT OF APPEALS MAY NOT SET ASIDE THE JUDGMENT BELOW
UNLESS IT IS CLEARLY ERRONEOUS.  NO GREATER SCOPE OF REVIEW IS
EXERCISED BY THE APPELLATE TRIBUNALS IN ADMIRALTY CASES THAN THEY
EXERCISE UNDER RULE 52(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE. 
BOSTON INS. CO. V. DEHYDRATING PROCESS CO., 204 F.2D 441, 444 (C.A. 1ST
CIR.); C.J. DICK TOWING CO. V. THE LEO, 202 F.2D 850, 854 (C.A. 5TH
CIR.); UNION CARBIDE & CARBON CORP. V. UNITED STATES, 200 F.2D 908, 910
(C.A.2D CIR.); KOEHLER V. UNITED STATES, 187 F.2D 933, 936 (C.A. 7TH
CIR.); WALTER G. HOUGLAND, INC. V. MUSCOVALLEY, 184 F.2D 530, 531 (C.A.
6TH CIR.), CERT. DENIED, 340 U.S. 935; PETTERSON LIGHTERAGE & TOWING
CORP. V. NEW YORK CENTRAL R. CO., 126 F.2D 992, 994-995 (C.A.2D CIR.).
A FINDING IS CLEARLY ERRONEOUS WHEN "ALTHOUGH THERE IS EVIDENCE TO
SUPPORT IT, THE REVIEWING COURT ON THE ENTIRE EVIDENCE IS LEFT WITH THE
DEFINITE AND FIRM CONVICTION THAT A MISTAKE HAS BEEN COMMITTED," UNITED
STATES V. OREGON MEDICAL SOCIETY, 343 U.S. 326, 339; UNITED STATES V.
UNITED STATES GYPSUM CO., 333 U.S. 364, 395.  WE DO NOT FIND THAT THE
COURT OF APPEALS DEPARTED FROM THIS STANDARD, ALTHOUGH WE DO DISAGREE
WITH THE RESULT REACHED UNDER THE APPLICATION OF THE STANDARD.  IN
RELATION TO THE DISTRICT COURT'S FINDINGS WE STAND IN REVIEW IN THE
SAME POSITION AS THE COURT OF APPEALS.  THE QUESTION, THEREFORE, IS
WHETHER THE FINDINGS OF THE DISTRICT COURT ARE CLEARLY ERRONEOUS. 

THE PETITIONER WAS SECOND ASSISTANT ENGINEER ON BOARD THE S.S. EDWARD
B. HAINES WHICH WAS IN CHINESE WATERS FROM SEPTEMBER 13, 1945, TO
DECEMBER 3, 1945.  DURING THIS TIME THE MASTER OF THE SHIP WAS INFORMED
THAT POLIO AND OTHER CONTAGIOUS DISEASES WERE PREVALENT IN SHANGHAI,
AND A BULLETIN WAS POSTED ON SHIP WARNING THE CREW THEREOF AND
DIRECTING THEM WHILE ASHORE TO EXERCISE CARE IN EATING AND DRINKING AND
TO AVOID ASSOCIATION WITH THE INHABITANTS ASHORE.  SO CONCERNED WAS THE
MASTER ABOUT THIS CONDITION THAT HE MUSTERED THE MEMBERS OF THE CREW ON
SEVERAL OCCASIONS AND WARNED THEM TO THE SAME EFFECT.  THE DISTRICT
COURT FOUND THAT THE PETITIONER OBEYED THESE WARNINGS, AND THERE WAS NO
EVIDENCE IN THE REPORT TO THE CONTRARY.  WHILE THE SHIP WAS IN PORT AT
SHANGHAI, NOVEMBER 11, 1945, THE RECORD DOES NOT SHOW THAT THE
PETITIONER WENT ASHORE.  THE LAST TIME HE WAS ASHORE WAS NOVEMBER 1. 
ON NOVEMBER 11, A NUMBER OF CHINESE STEVEDORES CAME ABOARD TO DO SOME
WORK, AND THERE WERE ALSO TAKEN ABOARD AT THAT TIME FORTY OR FIFTY
CHINESE SOLDIERS AND FIFTY TRUCK DRIVERS AND MECHANICS TO BE
TRANSPORTED TO TSINGTAO.  THESE SOLDIERS, TRUCK DRIVERS AND MECHANICS,
FRESH FROM SHANGHAI, THE AREA INFESTED BY POLIO, WERE PERMITTED WIDE
USE OF THE SHIP, INCLUDING TOILET FACILITIES AND THE ONLY DRINKING
FOUNTAIN, WHICH WAS LOCATED ON DECK.  TO SUPPLEMENT THE TOILET
FACILITIES AN OPEN WOODEN TROUGH WAS LAID ALONG THE DECK AND DISCHARGED
OVER THE SIDE OF THE SHIP.  A HOSE WAS PROVIDED FOR FLUSHING THE
TROUGH, AND ON SEVERAL OCCASIONS THE PETITIONER HAD TO GO ON DECK TO
TURN THE WATER ON TO FLUSH IT.  THERE WAS EXPERT TESTIMONY BY DOCTORS
THAT POLIO DERIVES FROM A VIRUS USUALLY SPREAD BY PEOPLE WHO ARE
CARRIERS OF THE DISEASE TO HEALTHY PERSONS WHO ARE SUSCEPTIBLE.  THE
VIRUS IS CARRIED BY HUMAN BEINGS WHO HAVE THE ORGANISM IN THEIR
INTESTINAL TRACT OR IN THEIR NOSE AND THROAT.  IT ENTERS THE
RESPIRATORY OR THE INTESTINAL TRACT OF THE SUSCEPTIBLE PERSON AND IS
CARRIED TO THE CENTRAL NERVOUS SYSTEM WHERE THE DISEASE PRODUCES
INJURY. 

THE PETITIONER FIRST REPORTED HIS SYMPTOMS ON NOVEMBER 24, 1945.  THE
USUAL PERIOD OF INCUBATION FOR THE VIRUS CAUSING POLIO IS BELIEVED TO
BE ABOUT TWO WEEKS, WITH A MAXIMUM OF TWO AND ONE-HALF WEEKS.  THERE
WAS EXPERT TESTIMONY THAT THE PRODUCING CAUSE OF POLIO IN THE
PETITIONER WAS CONTACT WITH THE CHINESE STEVEDORES, SOLDIERS, TRUCK
DRIVERS AND MECHANICS WHO CAME ABOARD THE SHIP.  ACCORDING TO THE
EXPERT TESTIMONY, POLIO USUALLY DOES NOT OCCUR UNLESS THERE HAVE BEEN
PREVIOUS CASES OF THE DISEASE OR CONTACT WITH PERSONS WHO HAVE IT.  THE
PETITIONER HAD AN UNEVENTFUL TRIP OF MONTHS BEFORE REACHING THE ORIENT
WITH INDIVIDUALS WHO HAD NO POLIO; THEN SUDDENLY HE IS THROWN IN
CONTACT WITH CHINESE FROM THE SHANGHAI AREA WHERE POLIO IS PREVALENT,
AND THEREAFTER, WITHIN THE NORMAL PERIOD OF INCUBATION, HE COMES DOWN
WITH THE DISEASE. 

ON EVIDENCE SHOWING THESE FACTS, INCLUDING THE OPINION OF THE
EXPERTS, WE THINK THERE WAS SUBSTANTIAL EVIDENCE FROM WHICH THE
DISTRICT COURT COULD AND DID FIND THAT RESPONDENT WAS NEGLIGENT IN
PERMITTING THESE CHINESE, FROM THE INFESTED AREA OF SHANGHAI, TO HAVE
THE RUN OF THE SHIP AND USE OF ITS FACILITIES, AND IN FURNISHING THE
CRUDE AND EXPOSED LATRINE PROVIDED ON THE DECK OF THE SHIP, BY REASON
WHEREOF THE PETITIONER CONTRACTED POLIO. 

OF COURSE NO ONE CAN SAY WITH CERTAINTY THAT THE CHINESE WERE THE
CARRIERS OF THE POLIO VIRUS AND THAT THEY COMMUNICATED IT TO THE
PETITIONER.  BUT UPON BALANCE OF THE PROBABILITIES IT SEEMS A
REASONABLE INFERENCE FOR THE DISTRICT COURT TO MAKE FROM THE FACTS
PROVED, SUPPORTED AS THEY WERE BY THE BEST JUDGMENT MEDICAL EXPERTS
HAVE UPON THE SUBJECT TODAY, THAT PETITIONER WAS CONTAMINATED BY THE
CHINESE WHO CAME ABOARD THE SHIP NOVEMBER 11, 1945, AT SHANGHAI. 
CERTAINLY WE CANNOT SAY ON REVIEW THAT A JUDGMENT BASED UPON SUCH
EVIDENCE IS CLEARLY ERRONEOUS.  MYERS V. READING CO., 331 U.S. 477, 485
486; TENNANT V. PEORIA & P.U.R.  CO., 321 U.S. 29.  WE THINK IT WAS AN
ALLOWABLE JUDGMENT OF THE DISTRICT COURT, AND THE JUDGMENT OF THE COURT
OF APPEALS IS REVERSED. 

MR. JUSTICE REED WOULD AFFIRM ON THE GROUNDS STATED BY THE COURT OF
APPEALS. 

MR. JUSTICE FRANKFURTER. 

THE PETITION ON THE BASIS OF WHICH A WRIT OF CERTIORARI WAS SOUGHT IN
THIS CASE PRESENTED TWO QUESTIONS OF LAW CLAIMED TO HAVE GENERAL
IMPORTANCE.  THE COURSE OF THE ARGUMENT AT THE BAR LEFT NO DOUBT THAT
THESE WERE NOT THE QUESTIONS WHICH WERE INVOLVED IN THE DECISION OF THE
COURT OF APPEALS UNDER REVIEW.  NEITHER IS THE QUESTION WHICH THIS
COURT IS NOW DECIDING.  BOTH COUNSEL AND THIS COURT HAVE VIEWED THE
CASE AS NO MORE THAN AN ORDINARY ACTION FOR NEGLIGENCE, GIVING RISE, AS
IS FREQUENTLY THE CASE, TO CONFLICT IN EVALUATION OF THE EVIDENCE.  IN
SHORT, THE COURT OF APPEALS READ THE EVIDENCE ONE WAY AND THIS COURT
ANOTHER.  IF THERE IS ANY CLASS OF CASES WHICH PLAINLY FALLS OUTSIDE
THE PROFESSED CONSIDERATIONS BY WHICH THIS COURT EXERCISES ITS
DISCRETIONARY JURISDICTION, IT IS CASES INVOLVING ONLY INTERPRETATION
OF FACTS BEARING ON THE ISSUE OF CAUSATION OR NEGLIGENCE.  THE
STANDARDS OF JUDGMENT IN THIS TYPE OF LITIGATION ARE WELL SETTLED.  THE
SIGNIFICANCE OF FACTS BECOMES THE BONE OF CONTENTION.  AND THE FACTS
STIR DIFFERENCES THAT DERIVE FROM THE VERY ELUSIVENESS OF THE MEANING
OF THE MYRIAD UNIQUE SETS OF CIRCUMSTANCES IN NEGLIGENCE CASES.  ONE'S
DEEP SYMPATHY IS OF COURSE AROUSED BY A VICTIM OF THE HAZARDS OF
NEGLIGENCE LITIGATION IN SITUATIONS LIKE THE ONE BEFORE US.  BUT THE
REMEDY FOR AN OBSOLETE AND UNCIVILIZED SYSTEM OF COMPENSATION FOR LOSS
OF LIFE OR LIMB OF CREWS ON SHIPS AND TRAINS IS NOT INTERMITTENT
DISREGARD OF THE CONSIDERATIONS WHICH LED CONGRESS TO ENTRUST THIS
COURT WITH THE DISCRETION OF CERTIORARI JURISDICTION.  THE REMEDY IS AN
ADEQUATE AND EFFECTIVE SYSTEM OF WORKMEN'S COMPENSATION. 

THE PRESENT CASE IS ONE OF THOSE INSTANCES WHEN A FULL APPRECIATION
BEFORE THE WRIT WAS GRANTED OF WHAT THE ARGUMENT DEVELOPED SHOULD HAVE
LED TO A DENIAL OF THE WRIT.  IF THIS COURT IS TO ENTERTAIN A
NEGLIGENCE CASE SOLELY BECAUSE WE STAND IN REVIEW IN THE SAME POSITION
AS THE COURT OF APPEALS WITH RELATION TO THE DISTRICT COURT AND
DISAGREE WITH THE RESULT WHICH THE COURT OF APPEALS REACHED IN THE
APPLICATION OF THE RIGHT STANDARDS, THE OPPORTUNITY THAT IS AFFORDED IN
THIS CASE FOR A REVIEW OF THE COURT OF APPEALS IS AN OPPORTUNITY THAT
SHOULD GENERALLY BE AFFORDED WHEN THE COURT OF APPEALS REVERSES A
DISTRICT COURT.  (INCIDENTALLY, THIS COURT IS NOT REVIEWING THE
DISTRICT COURT.  IT REVIEWS THE COURT OF APPEALS' REVIEW OF THE
DISTRICT COURT.*) 

*SEE LABOR BOARD V. PITTSBURGH S.S. CO., 340 U.S. 498, 503: 

"THIS IS NOT THE PLACE TO REVIEW A CONFLICT OF EVIDENCE NOR TO
REVERSE A COURT OF APPEALS BECAUSE WERE WE IN ITS PLACE WE WOULD FIND
THE RECORD TILTING ONE WAY RATHER THAN THE OTHER, THOUGH FAIR-MINDED
JUDGES COULD FIND IT TILTING EITHER WAY." 

AGAIN AND AGAIN AND AGAIN HAS IT BEEN AUTHORITATIVELY ANNOUNCED THAT
CONTROVERSIES SUCH AS THIS ARE NOT FOR THIS COURT.  NOR DOES IT FOLLOW
THAT BECAUSE THE CASE IN FACT WAS BROUGHT HERE AND HAS BEEN ARGUED, THE
MERITS SHOULD BE DECIDED.  THE SHORT ANSWER IS THAT TO ENTERTAIN THIS
KIND OF A CASE INEVITABLY WILL ENCOURAGE PETITIONS FOR CERTIORARI IN
OTHER LIKE CASES TENDERING AN ISSUE OF MORE GENERAL IMPORTANCE WHICH
CLOSE EXAMINATION PROVES WANTING.  THUS WILL AGAIN BEGIN DEMANDS ON THE
COURT WHICH IT WISELY CANNOT DISCHARGE AND FOR WHICH LEGISLATIVE RELIEF
HAD TO COME, OR A FEELING OF DISCRIMINATION WILL BE ENGENDERED IN
TAKING SOME CASES THAT OUGHT NOT TO BE TAKEN AND REJECTING OTHERS. 

THESE CONTROLLING CONSIDERATIONS WERE THUS PUT BY MR. CHIEF JUSTICE
TAFT ON BEHALF OF THE ENTIRE COURT: 

"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."  LAYNE & BOWLER CORP.
V. WESTERN WELL WORKS, INC., 261 U.S. 387, 393. 

WITH DUE REGARD TO THE COURT'S JURISDICTION ON WRIT OF CERTIORARI
(REVISED RULES OF THE SUPREME COURT, NO. 19) AND TO THE EFFECTIVE
ADJUDICATION OF THOSE CASES, INEVITABLY ABUNDANT, FOR WHICH THE COURT
SITS, THE COURT HAS AGAIN AND AGAIN DISMISSED THE WRIT AS IMPROVIDENTLY
GRANTED AFTER A PRELIMINARY AND NECESSARILY TENTATIVE CONSIDERATION OF
THE PETITION.  UNITED STATES V. RIMER, 220 U.S. 547; FURNESS, WITHY &
CO. V. YANG-TSZE INS. ASSN., 242 U.S. 430; TYRRELL V. DISTRICT OF
COLUMBIA, 243 U.S. 1; LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, INC.,
261 U.S. 387; SOUTHERN POWER CO. V. NORTH CAROLINA PUB. SERV. CO., 263
U.S. 508; KELLER V. ADAMS-CAMPBELL CO., 264 U.S. 314; WISCONSIN
ELECTRIC CO. V. DUMORE CO., 282 U.S. 813; SANCHEZ V. BORRAS, 283 U.S.
798; FRANKLIN-AMERICAN TRUST CO. V. ST. LOUIS UNION TRUST CO., 286 U.S.
533; MOOR V. TEXAS & N.O.R. CO., 297 U.S. 101; TEXAS & NEW ORLEANS R.
CO. V. NEILL, 302 U.S. 645; GOODMAN V. UNITED STATES, 305 U.S. 578;
GOINS V. UNITED STATES, 306 U.S. 622; MCCULLOUGH V. KAMMERER CORP., 323
U.S. 327; MCCARTHY V. BRUNER, 323 U.S. 673. 

I WOULD DISMISS THE WRIT AS IMPROVIDENTLY GRANTED. 
..END :





















IN RE DISBARMENT OF ISSERMAN 348 U.S. 1 


NO. 5, MISC., OCTOBER TERM, 1952 - DECIDED OCTOBER 14, 1954. 


SINCE A MAJORITY OF THE JUSTICES PARTICIPATING DO NOT FIND GROUND FOR
DISBARMENT AS REQUIRED BY RULE 8 OF THE PRESENT RULES OF THIS COURT,
THE ORDER OF DISBARMENT, 345 U.S. 286, IS SET ASIDE AND THE RULE TO
SHOW CAUSE IS DISCHARGED. 

IN RE DISBARMENT OF ISSERMAN. 

ON PETITION FOR REHEARING. 

PER CURIAM. 

APRIL 6, 1953, AN ORDER WAS ENTERED DISBARRING ISSERMAN FROM THE
PRACTICE OF LAW IN THIS COURT PURSUANT TO RULE 2, PAR. 5, OF THIS
COURT'S RULES THEN IN EFFECT.  SEE IN RE ISSERMAN, 345 U.S. 286.  THE
ORDER OF DISBARMENT IS NOW BEFORE US ON A PETITION FOR REHEARING.  RULE
8 OF OUR PRESENT RULES PROVIDES THAT "NO ORDER OF DISBARMENT WILL BE
ENTERED EXCEPT WITH THE CONCURRENCE OF A MAJORITY OF THE JUSTICES
PARTICIPATING."  THE PETITION FOR REHEARING IS GRANTED.  A MAJORITY OF
THE JUSTICES PARTICIPATING DO NOT FIND GROUND FOR DISBARMENT OF
ISSERMAN.  ACCORDINGLY, THE FORMER ORDER OF DISBARMENT IS SET ASIDE AND
THE RULE AGAINST ISSERMAN TO SHOW CAUSE IS DISCHARGED. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE MINTON
JOIN, DISSENTS FOR THE REASONS STATED IN THE OPINION ANNOUNCED BY MR.
CHIEF JUSTICE VINSON, APRIL 6, 1953, IN IN RE ISSERMAN, 345 U.S. 286. 

MR. JUSTICE REED ALSO CALLS ATTENTION TO HIS DISSENT IN SACHER V.
ASSOCIATION OF THE BAR, 347 U.S. 388, 390. 

THE CHIEF JUSTICE AND MR. JUSTICE CLARK DID NOT PARTICIPATE IN THE
CONSIDERATION OR DECISION OF THIS MATTER. 
..END :
















UNITED STATES V. HARRISS 347 U.S. 612 


NO. 32.  ARGUED OCTOBER 19, 1953 - DECIDED JUNE 7, 1954 - 109 F. SUPP.
641, REVERSED. 


1.  AS HERE CONSTRUED, SECS. 305, 307 AND 308 OF THE FEDERAL
REGULATION OF LOBBYING ACT ARE NOT TOO VAGUE AND INDEFINITE TO MEET THE
REQUIREMENTS OF DUE PROCESS.  PP. 617-624. 

(A)  IF THE GENERAL CLASS OF OFFENSES TO WHICH A STATUTE IS DIRECTED
IS PLAINLY WITHIN ITS TERMS, THE STATUTE WILL NOT BE STRUCK DOWN AS
VAGUE, EVEN THOUGH MARGINAL CASES COULD BE PUT WHERE DOUBTS MIGHT
ARISE.  P. 618. 

(B)  IF THIS GENERAL CLASS OF OFFENSES CAN BE MADE CONSTITUTIONALLY
DEFINITE BY A REASONABLE CONSTRUCTION OF THE STATUTE, THE COURT IS
UNDER A DUTY TO GIVE THE STATUTE THAT CONSTRUCTION.  P. 618. 

(C)  SECTION 307 LIMITS THE COVERAGE OF THE ACT TO THOSE "PERSONS"
(EXCEPT SPECIFIED POLITICAL COMMITTEES) WHO SOLICIT, COLLECT, OR
RECEIVE CONTRIBUTIONS OF MONEY OR OTHER THING OF VALUE, AND THEN ONLY
IF ONE OF THE MAIN PURPOSES OF EITHER THE PERSONS OR THE CONTRIBUTIONS
IS TO AID IN THE ACCOMPLISHMENT OF THE AIMS SET FORTH IN SEC. 307(A)
AND (B).  PP. 618-620, 621-623. 

(D)  THE PURPOSES SET FORTH IN SEC. 307(A) AND (B) ARE HERE CONSTRUED
TO REFER ONLY TO "LOBBYING IN ITS COMMONLY ACCEPTED SENSE" - TO DIRECT
COMMUNICATION WITH MEMBERS OF CONGRESS ON PENDING OR PROPOSED
LEGISLATION.  PP. 620-621. 

(E)  THE "PRINCIPAL PURPOSE" REQUIREMENT WAS ADOPTED MERELY TO
EXCLUDE FROM THE SCOPE OF SEC. 307 THOSE CONTRIBUTIONS AND PERSONS
HAVING ONLY AN "INCIDENTAL" PURPOSE OF INFLUENCING LEGISLATION.  IT
DOES NOT EXCLUDE A CONTRIBUTION WHICH IN SUBSTANTIAL PART IS TO BE USED
TO INFLUENCE LEGISLATION THROUGH DIRECT COMMUNICATION WITH CONGRESS OR
A PERSON WHOSE ACTIVITIES IN SUBSTANTIAL PART ARE DIRECTED TO
INFLUENCING LEGISLATION THROUGH DIRECT COMMUNICATION WITH CONGRESS. 
PP. 621-623. 

(F)  THERE ARE THREE PREREQUISITES TO COVERAGE UNDER SECS. 307, 305
AND 308:  (1) THE "PERSON" MUST HAVE SOLICITED, COLLECTED OR RECEIVED
CONTRIBUTIONS; (2) ONE OF THE MAIN PURPOSES OF SUCH "PERSON," OR ONE OF
THE MAIN PURPOSES OF SUCH CONTRIBUTIONS, MUST HAVE BEEN TO INFLUENCE
THE PASSAGE OR DEFEAT OF LEGISLATION BY CONGRESS; AND (3) THE INTENDED
METHOD OF ACCOMPLISHING THIS PURPOSE MUST HAVE BEEN THROUGH DIRECT
COMMUNICATION WITH MEMBERS OF CONGRESS.  P. 623. 

2.  AS THUS CONSTRUED, SECS. 305 AND 308 DO NOT VIOLATE THE FREEDOMS
GUARANTEED BY THE FIRST AMENDMENT - FREEDOM TO SPEAK, PUBLISH AND
PETITION THE GOVERNMENT.  PP. 625-626. 

3.  IN THIS CASE, IT IS UNNECESSARY FOR THE COURT TO PASS ON THE
CONTENTION THAT THE PENALTY PROVISION IN SEC. 310(B) VIOLATES THE FIRST
AMENDMENT.  PP. 626-627. 

(A)  SECTION 310(B) HAS NOT YET BEEN APPLIED TO APPELLEES, AND IT WILL
NEVER BE SO APPLIED IF APPELLEES ARE FOUND INNOCENT OF THE CHARGES
AGAINST THEM.  P. 627. 

(B)  THE ELIMINATION OF SEC. 310(B) WOULD STILL LEAVE A STATUTE
DEFINING SPECIFIC DUTIES AND PROVIDING A SPECIFIC PENALTY FOR VIOLATION
OF ANY SUCH DUTY, AND THE SEPARABILITY PROVISION OF THE ACT CAN BE
GIVEN EFFECT IF SEC. 310(B) SHOULD ULTIMATELY BE FOUND INVALID.  P.
627. 

UNITED STATES V. HARRISS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE APPELLEES WERE CHARGED BY INFORMATION WITH VIOLATION OF THE
FEDERAL REGULATION OF LOBBYING ACT, 60 STAT. 812, 839, 2 U.S.C. SECS.
261-270.  RELYING ON ITS PREVIOUS DECISION IN NATIONAL ASSOCIATION OF
MANUFACTURERS V. MCGRATH, 103 F. SUPP. 510, VACATED AS MOOT, 344 U.S.
804, THE DISTRICT COURT DISMISSED THE INFORMATION ON THE GROUND THAT
THE ACT IS UNCONSTITUTIONAL.  109 F. SUPP. 641.  THE CASE IS HERE ON
DIRECT APPEAL UNDER THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 3731. 

SEVEN COUNTS OF THE INFORMATION ARE LAID UNDER SEC. 305, WHICH
REQUIRES DESIGNATED REPORTS TO CONGRESS FROM EVERY PERSON "RECEIVING
ANY CONTRIBUTIONS OR EXPENDING ANY MONEY" FOR THE PURPOSE OF
INFLUENCING THE PASSAGE OR DEFEAT OF ANY LEGISLATION BY CONGRESS. 
(FN1)  ONE SUCH COUNT CHARGES THE NATIONAL FARM COMMITTEE, A TEXAS
CORPORATION, WITH FAILURE TO REPORT THE SOLICITATION AND RECEIPT OF
CONTRIBUTIONS TO INFLUENCE THE PASSAGE OF LEGISLATION WHICH WOULD CAUSE
A RISE IN THE PRICE OF AGRICULTURAL COMMODITIES AND COMMODITY FUTURES
AND THE DEFEAT OF LEGISLATION WHICH WOULD CAUSE A DECLINE IN THOSE
PRICES.  THE REMAINING SIX COUNTS UNDER SEC. 305 CHARGE DEFENDANTS
MOORE AND HARRISS WITH FAILURE TO REPORT EXPENDITURES HAVING THE SAME
SINGLE PURPOSE.  SOME OF THE ALLEGED EXPENDITURES CONSIST OF THE
PAYMENT OF COMPENSATION TO OTHERS TO COMMUNICATE FACE-TO-FACE WITH
MEMBERS OF CONGRESS, AT PUBLIC FUNCTIONS AND COMMITTEE HEARINGS,
CONCERNING LEGISLATION AFFECTING AGRICULTURAL PRICES; THE OTHER ALLEGED
EXPENDITURES RELATE LARGELY TO THE COSTS OF A CAMPAIGN TO INDUCE
VARIOUS INTERESTED GROUPS AND INDIVIDUALS TO COMMUNICATE BY LETTER WITH
MEMBERS OF CONGRESS ON SUCH LEGISLATION. 

THE OTHER TWO COUNTS IN THE INFORMATION ARE LAID UNDER SEC. 308,
WHICH REQUIRES ANY PERSON "WHO SHALL ENGAGE HIMSELF FOR PAY OR FOR ANY
CONSIDERATION FOR THE PURPOSE OF ATTEMPTING TO INFLUENCE THE PASSAGE OR
DEFEAT OF ANY LEGISLATION" TO REGISTER WITH CONGRESS AND TO MAKE
SPECIFIED DISCLOSURES.  (FN2)  THESE TWO COUNTS ALLEGE IN CONSIDERABLE
DETAIL THAT DEFENDANTS MOORE AND LINDER WERE HIRED TO EXPRESS CERTAIN
VIEWS TO CONGRESS AS TO AGRICULTURAL PRICES OR TO CAUSE OTHERS TO DO
SO, FOR THE PURPOSE OF ATTEMPTING TO INFLUENCE THE PASSAGE OF
LEGISLATION WHICH WOULD CAUSE A RISE IN THE PRICE OF AGRICULTURAL
COMMODITIES AND COMMODITY FUTURES AND A DEFEAT OF LEGISLATION WHICH
WOULD CAUSE A DECLINE IN SUCH PRICES; AND THAT PURSUANT TO THIS
UNDERTAKING, WITHOUT HAVING REGISTERED AS REQUIRED BY SEC. 308, THEY
ARRANGED TO HAVE MEMBERS OF CONGRESS CONTACTED ON BEHALF OF THESE
VIEWS, EITHER DIRECTLY BY THEIR OWN EMISSARIES OR THROUGH AN
ARTIFICIALLY STIMULATED LETTER CAMPAIGN.  (FN3) 

WE ARE NOT CONCERNED HERE WITH THE SUFFICIENCY OF THE INFORMATION AS
A CRIMINAL PLEADING.  OUR REVIEW UNDER THE CRIMINAL APPEALS ACT IS
LIMITED TO A DECISION ON THE ALLEGED "INVALIDITY" OF THE STATUTE ON
WHICH THE INFORMATION IS BASED.  (FN4)  IN MAKING THIS DECISION, WE
JUDGE THE STATUTE ON ITS FACE.  SEE UNITED STATES V. PETRILLO, 332 U.S.
1, 6, 12.  THE "INVALIDITY" OF THE LOBBYING ACT IS ASSERTED ON THREE
GROUNDS:  (1) THAT SECS. 305, 307, AND 308 ARE TOO VAGUE AND INDEFINITE
TO MEET THE REQUIREMENTS OF DUE PROCESS; (2) THAT SECS. 305 AND 308
VIOLATE THE FIRST AMENDMENT GUARANTEES OF FREEDOM OF SPEECH, FREEDOM OF
THE PRESS, AND THE RIGHT TO PETITION THE GOVERNMENT; (3) THAT THE
PENALTY PROVISION OF SEC. 310(B) VIOLATES THE RIGHT OF THE PEOPLE UNDER
THE FIRST AMENDMENT TO PETITION THE GOVERNMENT. 

                                        I. 

THE CONSTITUTIONAL REQUIREMENT OF DEFINITENESS IS VIOLATED BY A
CRIMINAL STATUTE THAT FAILS TO GIVE A PERSON OF ORDINARY INTELLIGENCE
FAIR NOTICE THAT HIS CONTEMPLATED CONDUCT IS FORBIDDEN BY THE STATUTE. 
THE UNDERLYING PRINCIPLE IS THAT NO MAN SHALL BE HELD CRIMINALLY
RESPONSIBLE FOR CONDUCT WHICH HE COULD NOT REASONABLY UNDERSTAND TO BE
PROSCRIBED.  (FN5) 

ON THE OTHER HAND, IF THE GENERAL CLASS OF OFFENSES TO WHICH THE
STATUTE IS DIRECTED IS PLAINLY WITHIN ITS TERMS, THE STATUTE WILL NOT
BE STRUCK DOWN AS VAGUE, EVEN THOUGH MARGINAL CASES COULD BE PUT WHERE
DOUBTS MIGHT ARISE.  UNITED STATES V. PETRILLO, 332 U.S. 1, 7.  CF.
JORDAN V. DE GEORGE, 341 U.S. 223, 231.  AND IF THIS GENERAL CLASS OF
OFFENSES CAN BE MADE CONSTITUTIONALLY DEFINITE BY A REASONABLE
CONSTRUCTION OF THE STATUTE, THIS COURT IS UNDER A DUTY TO GIVE THE
STATUTE THAT CONSTRUCTION.  THIS WAS THE COURSE ADOPTED IN SCREWS V.
UNITED STATES, 325 U.S. 91, UPHOLDING THE DEFINITENESS OF THE CIVIL
RIGHTS ACT.  (FN6) 

THE SAME COURSE IS APPROPRIATE HERE.  THE KEY SECTION OF THE LOBBYING
ACT IS SEC. 307, ENTITLED "PERSONS TO WHOM APPLICABLE."  SECTION 307
PROVIDES: 

"THE PROVISIONS OF THIS TITLE SHALL APPLY TO ANY PERSON (EXCEPT A
POLITICAL COMMITTEE AS DEFINED IN THE FEDERAL CORRUPT PRACTICES ACT,
AND DULY ORGANIZED STATE OR LOCAL COMMITTEES OF A POLITICAL PARTY), WHO
BY HIMSELF, OR THROUGH ANY AGENT OR EMPLOYEE OR OTHER PERSONS IN ANY
MANNER WHATSOEVER, DIRECTLY OR INDIRECTLY, SOLICITS, COLLECTS, OR
RECEIVES MONEY OR ANY OTHER THING OF VALUE TO BE USED PRINCIPALLY TO
AID, OR THE PRINCIPAL PURPOSE OF WHICH PERSON IS TO AID, IN THE
ACCOMPLISHMENT OF ANY OF THE FOLLOWING PURPOSES: 

"(A)  THE PASSAGE OR DEFEAT OF ANY LEGISLATION BY THE CONGRESS OF THE
UNITED STATES. 

"(B)  TO INFLUENCE, DIRECTLY OR INDIRECTLY, THE PASSAGE OR DEFEAT OF
ANY LEGISLATION BY THE CONGRESS OF THE UNITED STATES." 

THIS SECTION MODIFIES THE SUBSTANTIVE PROVISIONS OF THE ACT,
INCLUDING SEC. 305 AND SEC. 308.  IN OTHER WORDS, UNLESS A "PERSON"
FALLS WITHIN THE CATEGORY ESTABLISHED BY SEC. 307, THE DISCLOSURE
REQUIREMENTS OF SEC. 305 AND SEC. 308 ARE INAPPLICABLE.  (FN7)  THUS
COVERAGE UNDER THE ACT IS LIMITED TO THOSE PERSONS (EXCEPT FOR THE
SPECIFIED POLITICAL COMMITTEES) WHO SOLICIT, COLLECT, OR RECEIVE
CONTRIBUTIONS OF MONEY OR OTHER THING OF VALUE, AND THEN ONLY IF "THE
PRINCIPAL PURPOSE" OF EITHER THE PERSONS OR THE CONTRIBUTIONS IS TO AID
IN THE ACCOMPLISHMENT OF THE AIMS SET FORTH IN SEC. 307(A) AND (B).  IN
ANY EVENT, THE SOLICITATION, COLLECTION, OR RECEIPT OF MONEY OR OTHER
THING OF VALUE IS A PREREQUISITE TO COVERAGE UNDER THE ACT. 

THE GOVERNMENT URGES A MUCH BROADER CONSTRUCTION - NAMELY, THAT UNDER
SEC. 305 A PERSON MUST REPORT HIS EXPENDITURES TO INFLUENCE LEGISLATION
EVEN THOUGH HE DOES NOT SOLICIT, COLLECT, OR RECEIVE CONTRIBUTIONS AS
PROVIDED IN SEC. 307.  (FN8)  SUCH A CONSTRUCTION, WE BELIEVE, WOULD DO
VIOLENCE TO THE TITLE AND LANGUAGE OF SEC. 307 AS WELL AS ITS
LEGISLATIVE HISTORY.  (FN9)  IF THE CONSTRUCTION URGED BY THE
GOVERNMENT IS TO BECOME LAW, THAT IS FOR CONGRESS TO ACCOMPLISH BY
FURTHER LEGISLATION. 

WE NOW TURN TO THE ALLEGED VAGUENESS OF THE PURPOSES SET FORTH IN
SEC. 307(A) AND (B).  AS IN UNITED STATES V. RUMELY, 345 U.S. 41, 47,
WHICH INVOLVED THE INTERPRETATION OF SIMILAR LANGUAGE, WE BELIEVE THIS
LANGUAGE SHOULD BE CONSTRUED TO REFER ONLY TO "LOBBYING IN ITS COMMONLY
ACCEPTED SENSE" - TO DIRECT COMMUNICATION WITH MEMBERS OF CONGRESS ON
PENDING OR PROPOSED FEDERAL LEGISLATION.  THE LEGISLATIVE HISTORY OF
THE ACT MAKES CLEAR THAT, AT THE VERY LEAST, CONGRESS SOUGHT DISCLOSURE
OF SUCH DIRECT PRESSURES, EXERTED BY THE LOBBYISTS THEMSELVES OR
THROUGH THEIR HIRELINGS OR THROUGH AN ARTIFICIALLY STIMULATED LETTER
CAMPAIGN.  (FN10)  IT IS LIKEWISE CLEAR THAT CONGRESS WOULD HAVE
INTENDED THE ACT TO OPERATE ON THIS NARROWER BASIS, EVEN IF A BROADER
APPLICATION OR ORGANIZATIONS SEEKING TO PROPAGANDIZE THE GENERAL PUBLIC
WERE NOT PERMISSIBLE.  (FN11) 

THERE REMAINS FOR OUR CONSIDERATION THE MEANING OF "THE PRINCIPAL
PURPOSE" AND "TO BE USED PRINCIPALLY TO AID."  THE LEGISLATIVE HISTORY
OF THE ACT INDICATES THAT THE TERM "PRINCIPAL" WAS ADOPTED MERELY TO
EXCLUDE FROM THE SCOPE OF SEC. 307 THOSE CONTRIBUTIONS AND PERSONS
HAVING ONLY AN "INCIDENTAL" PURPOSE OF INFLUENCING LEGISLATION.  (FN12)
CONVERSELY, THE "PRINCIPAL PURPOSE" REQUIREMENT DOES NOT EXCLUDE A
CONTRIBUTION WHICH IN SUBSTANTIAL PART IS TO BE USED TO INFLUENCE
LEGISLATION THROUGH DIRECT COMMUNICATION WITH CONGRESS OR A PERSON
WHOSE ACTIVITIES IN SUBSTANTIAL PART ARE DIRECTED TO INFLUENCING
LEGISLATION THROUGH DIRECT COMMUNICATION WITH CONGRESS.  (FN13)  IF IT
WERE OTHERWISE - IF AN ORGANIZATION, FOR EXAMPLE, WERE EXEMPTED BECAUSE
LOBBYING WAS ONLY ONE OF ITS MAIN ACTIVITIES - THE ACT WOULD IN LARGE
MEASURE BE REDUCED TO A MERE EXHORTATION AGAINST ABUSE OF THE
LEGISLATIVE PROCESS.  IN CONSTRUING THE ACT NARROWLY TO AVOID
CONSTITUTIONAL DOUBTS, WE MUST ALSO AVOID A CONSTRUCTION THAT WOULD
SERIOUSLY IMPAIR THE EFFECTIVENESS OF THE ACT IN COPING WITH THE
PROBLEM IT WAS DESIGNED TO ALLEVIATE. 

TO SUMMARIZE, THEREFORE, THERE ARE THREE PREREQUISITES TO COVERAGE
UNDER SEC. 307:  (1) THE "PERSON" MUST HAVE SOLICITED, COLLECTED, OR
RECEIVED CONTRIBUTIONS; (2) ONE OF THE MAIN PURPOSES OF SUCH "PERSON,"
OR ONE OF THE MAIN PURPOSES OF SUCH CONTRIBUTIONS, MUST HAVE BEEN TO
INFLUENCE THE PASSAGE OR DEFEAT OF LEGISLATION BY CONGRESS; (3) THE
INTENDED METHOD OF ACCOMPLISHING THIS PURPOSE MUST HAVE BEEN THROUGH
DIRECT COMMUNICATION WITH MEMBERS OF CONGRESS.  AND SINCE SEC. 307
MODIFIES THE SUBSTANTIVE PROVISIONS OF THE ACT, OUR CONSTRUCTION OF
SEC. 307 WILL OF NECESSITY ALSO NARROW THE SCOPE OF SEC. 305 AND SEC.
308, THE SUBSTANTIVE PROVISIONS UNDERLYING THE INFORMATION IN THIS
CASE.  THUS SEC. 305 IS LIMITED TO THOSE PERSONS WHO ARE COVERED BY
SEC. 307; AND WHEN SO COVERED, THEY MUST REPORT ALL CONTRIBUTIONS AND
EXPENDITURES HAVING THE PURPOSE OF ATTEMPTING TO INFLUENCE LEGISLATION
THROUGH DIRECT COMMUNICATION WITH CONGRESS.  SIMILARLY, SEC. 308 IS
LIMITED TO THOSE PERSONS (WITH THE STATED EXCEPTIONS (FN14) ) WHO ARE
COVERED BY SEC. 307 AND WHO, IN ADDITION, ENGAGE THEMSELVES FOR PAY OR
FOR ANY OTHER VALUABLE CONSIDERATION FOR THE PURPOSE OF ATTEMPTING TO
INFLUENCE LEGISLATION THROUGH DIRECT COMMUNICATION WITH CONGRESS. 
CONSTRUED IN THIS WAY, THE LOBBYING ACT MEETS THE CONSTITUTIONAL
REQUIREMENT OF DEFINITENESS.  (FN15)

                  II. 

THUS CONSTRUED, SECS. 305 AND 308 ALSO DO NOT VIOLATE THE FREEDOMS
GUARANTEED BY THE FIRST AMENDMENT - FREEDOM TO SPEAK, PUBLISH, AND
PETITION THE GOVERNMENT. 

PRESENT-DAY LEGISLATIVE COMPLEXITIES ARE SUCH THAT INDIVIDUAL MEMBERS
OF CONGRESS CANNOT BE EXPECTED TO EXPLORE THE MYRIAD PRESSURES TO WHICH
THEY ARE REGULARLY SUBJECTED.  YET FULL REALIZATION OF THE AMERICAN
IDEAL OF GOVERNMENT BY ELECTED REPRESENTATIVES DEPENDS TO NO SMALL
EXTENT ON THEIR ABILITY TO PROPERLY EVALUATE SUCH PRESSURES.  OTHERWISE
THE VOICE OF THE PEOPLE MAY ALL TOO EASILY BE DROWNED OUT BY THE VOICE
OF SPECIAL INTEREST GROUPS SEEKING FAVORED TREATMENT WHILE MASQUERADING
AS PROPONENTS OF THE PUBLIC WEAL.  THIS IS THE EVIL WHICH THE LOBBYING
ACT WAS DESIGNED TO HELP PREVENT.  (FN16) 

TOWARD THAT END, CONGRESS HAS NOT SOUGHT TO PROHIBIT THESE
PRESSURES.  IT HAS MERELY PROVIDED FOR A MODICUM OF INFORMATION FROM
THOSE WHO FOR HIRE ATTEMPT TO INFLUENCE LEGISLATION OR WHO COLLECT OR
SPEND FUNDS FOR THAT PURPOSE.  IT WANTS ONLY TO KNOW WHO IS BEING
HIRED, WHO IS PUTTING UP THE MONEY, AND HOW MUCH.  IT ACTED IN THE SAME
SPIRIT AND FOR A SIMILAR PURPOSE IN PASSING THE FEDERAL CORRUPT
PRACTICES ACT - TO MAINTAIN THE INTEGRITY OF A BASIC GOVERNMENTAL
PROCESS.  SEE BURROUGHS AND CANNON V. UNITED STATES, 290 U.S. 534,
545. 

UNDER THESE CIRCUMSTANCES, WE BELIEVE THAT CONGRESS, AT LEAST WITHIN
THE BOUNDS OF THE ACT AS WE HAVE CONSTRUED IT, IS NOT CONSTITUTIONALLY
FORBIDDEN TO REQUIRE THE DISCLOSURE OF LOBBYING ACTIVITIES.  TO DO SO
WOULD BE TO DENY CONGRESS IN LARGE MEASURE THE POWER OF SELF
PROTECTION.  AND HERE CONGRESS HAS USED THAT POWER IN A MANNER
RESTRICTED TO ITS APPROPRIATE END.  WE CONCLUDE THAT SECS. 305 AND 308,
AS APPLIED TO PERSONS DEFINED IN SEC. 307, DO NOT OFFEND THE FIRST
AMENDMENT. 

IT IS SUGGESTED, HOWEVER, THAT THE LOBBYING ACT, WITH RESPECT TO
PERSONS OTHER THAN THOSE DEFINED IN SEC. 307, MAY AS A PRACTICAL MATTER
ACT AS A DETERRENT TO THEIR EXERCISE OF FIRST AMENDMENT RIGHTS. 
HYPOTHETICAL BORDERLINE SITUATIONS ARE CONJURED UP IN WHICH SUCH
PERSONS CHOOSE TO REMAIN SILENT BECAUSE OF FEAR OF POSSIBLE PROSECUTION
FOR FAILURE TO COMPLY WITH THE ACT.  OUR NARROW CONSTRUCTION OF THE
ACT, PRECLUDING AS IT DOES REASONABLE FEARS, IS CALCULATED TO AVOID
SUCH RESTRAINT.  BUT, EVEN ASSUMING SOME SUCH DETERRENT EFFECT, THE
RESTRAINT IS AT MOST AN INDIRECT ONE RESULTING FROM SELF-CENSORSHIP,
COMPARABLE IN MANY WAYS TO THE RESTRAINT RESULTING FROM CRIMINAL LIBEL
LAWS.  (FN17)  THE HAZARD OF SUCH RESTRAINT IS TOO REMOTE TO REQUIRE
STRIKING DOWN A STATUTE WHICH ON ITS FACE IS OTHERWISE PLAINLY WITHIN
THE AREA OF CONGRESSIONAL POWER AND IS DESIGNED TO SAFEGUARD A VITAL
NATIONAL INTEREST. 

            III. 

THE APPELLEES FURTHER ATTACK THE STATUTE ON THE GROUND THAT THE
PENALTY PROVIDED IN SEC. 310(B) IS UNCONSTITUTIONAL.  THAT SECTION
PROVIDES:    "(B)  IN ADDITION TO THE PENALTIES PROVIDED FOR IN
SUBSECTION (A), ANY PERSON CONVICTED OF THE MISDEMEANOR SPECIFIED
THEREIN IS PROHIBITED, FOR A PERIOD OF THREE YEARS FROM THE DATE OF
SUCH CONVICTION, FROM ATTEMPTING TO INFLUENCE, DIRECTLY OR INDIRECTLY,
THE PASSAGE OR DEFEAT OF ANY PROPOSED LEGISLATION OR FROM APPEARING
BEFORE A COMMITTEE OF THE CONGRESS IN SUPPORT OF OR OPPOSITION TO
PROPOSED LEGISLATION; AND ANY PERSON WHO VIOLATES ANY PROVISION OF THIS
SUBSECTION SHALL, UPON CONVICTION THEREOF, BE GUILTY OF A FELONY, AND
SHALL BE PUNISHED BY A FINE OF NOT MORE THAN $10,000, OR IMPRISONMENT
FOR NOT MORE THAN FIVE YEARS, OR BY BOTH SUCH FINE AND IMPRISONMENT." 
THIS SECTION, THE APPELLEES ARGUE, IS A PATENT VIOLATION OF THE FIRST
AMENDMENT GUARANTEES OF FREEDOM OF SPEECH AND THE RIGHT TO PETITION THE
GOVERNMENT. 

WE FIND IT UNNECESSARY TO PASS ON THIS CONTENTION.  UNLIKE SECS. 305,
307, AND 308 WHICH WE HAVE JUDGED ON THEIR FACE, SEC. 310(B) HAS NOT
YET BEEN APPLIED TO THE APPELLEES, AND IT WILL NEVER BE SO APPLIED IF
THE APPELLEES ARE FOUND INNOCENT OF THE CHARGES AGAINST THEM.  SEE
UNITED STATES V. WURZBACH, 280 U.S. 396, 399; UNITED STATES V.
PETRILLO, 332 U.S. 1, 9-12. 

MOREOVER, THE ACT PROVIDES FOR THE SEPARABILITY OF ANY PROVISION
FOUND INVALID.  (FN18)  IF SEC. 310(B) SHOULD ULTIMATELY BE DECLARED
UNCONSTITUTIONAL, ITS ELIMINATION WOULD STILL LEAVE A STATUTE DEFINING
SPECIFIC DUTIES AND PROVIDING A SPECIFIC PENALTY FOR VIOLATION OF ANY
SUCH DUTY.  THE PROHIBITION OF SEC. 310(B) IS EXPRESSLY STATED TO BE
"IN ADDITION TO THE PENALTIES PROVIDED FOR IN SUBSECTION (A)  ...  ";
SUBSECTION (A) MAKES A VIOLATION OF SEC. 305 OR SEC. 308 A MISDEMEANOR,
PUNISHABLE BY FINE OR IMPRISONMENT OR BOTH.  CONSEQUENTLY, THERE WOULD
SEEM TO BE NO OBSTACLE TO GIVING EFFECT TO THE SEPARABILITY CLAUSE AS
TO SEC. 310(B), IF THIS SHOULD EVER PROVE NECESSARY.  COMPARE ELECTRIC
BOND & SHARE CO. V. SECURITIES & EXCHANGE COMMISSION, 303 U.S. 419, 433
437. 

THE JUDGMENT BELOW IS REVERSED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

FN1  SECTION 305 PROVIDES: 

"(A)  EVERY PERSON RECEIVING ANY CONTRIBUTIONS OR EXPENDING ANY MONEY
FOR THE PURPOSES DESIGNATED IN SUBPARAGRAPH (A) OR (B) OF SECTION 307
SHALL FILE WITH THE CLERK BETWEEN THE FIRST AND TENTH DAY OF EACH
CALENDAR QUARTER, A STATEMENT CONTAINING COMPLETE AS OF THE DAY NEXT
PRECEDING THE DATE OF FILING: 

"(1)  THE NAME AND ADDRESS OF EACH PERSON WHO HAS MADE A CONTRIBUTION
OF $500 OR MORE NOT MENTIONED IN THE PRECEDING REPORT; EXCEPT THAT THE
FIRST REPORT FILED PURSUANT TO THIS TITLE SHALL CONTAIN THE NAME AND
ADDRESS OF EACH PERSON WHO HAS MADE ANY CONTRIBUTION OF $500 OR MORE TO
SUCH PERSON SINCE THE EFFECTIVE DATE OF THIS TITLE: 

"(2)  THE TOTAL SUM OF THE CONTRIBUTIONS MADE TO OR FOR SUCH PERSON
DURING THE CALENDAR YEAR AND NOT STATED UNDER PARAGRAPH (1): 

"(3)  THE TOTAL SUM OF ALL CONTRIBUTIONS MADE TO OR FOR SUCH PERSON
DURING THE CALENDAR YEAR: 

"(4)  THE NAME AND ADDRESS OF EACH PERSON TO WHOM AN EXPENDITURE IN
ONE OR MORE ITEMS OF THE AGGREGATE AMOUNT OR VALUE, WITHIN THE CALENDAR
YEAR, OF $10 OR MORE HAS BEEN MADE BY OR ON BEHALF OF SUCH PERSON, AND
THE AMOUNT, DATE, AND PURPOSE OF SUCH EXPENDITURE: 

"(5)  THE TOTAL SUM OF ALL EXPENDITURES MADE BY OR ON BEHALF OF SUCH
PERSON DURING THE CALENDAR YEAR AND NOT STATED UNDER PARAGRAPH (4): 

"(6)  THE TOTAL SUM OF EXPENDITURES MADE BY OR ON BEHALF OF SUCH
PERSON DURING THE CALENDAR YEAR. 

"(B)  THE STATEMENTS REQUIRED TO BE FILED BY SUBSECTION (A) SHALL BE
CUMULATIVE DURING THE CALENDAR YEAR TO WHICH THEY RELATE, BUT WHERE
THERE HAS BEEN NO CHANGE IN AN ITEM REPORTED IN A PREVIOUS STATEMENT
ONLY THE AMOUNT NEED BE CARRIED FORWARD." 

THE FOLLOWING ARE "THE PURPOSES DESIGNATED IN SUBPARAGRAPH (A) OR (B)
OF SECTION 307": 

"(A) THE PASSAGE OR DEFEAT OF ANY LEGISLATION BY THE CONGRESS OF THE
UNITED STATES. 

"(B)  TO INFLUENCE, DIRECTLY OR INDIRECTLY, THE PASSAGE OR DEFEAT OF
ANY LEGISLATION BY THE CONGRESS OF THE UNITED STATES." 

FN2  SECTION 308 PROVIDES: 

"(A)  ANY PERSON WHO SHALL ENGAGE HIMSELF FOR PAY OR FOR ANY
CONSIDERATION FOR THE PURPOSE OF ATTEMPTING TO INFLUENCE THE PASSAGE OR
DEFEAT OF ANY LEGISLATION BY THE CONGRESS OF THE UNITED STATES SHALL,
BEFORE DOING ANYTHING IN FURTHERANCE OF SUCH OBJECT, REGISTER WITH THE
CLERK OF THE HOUSE OF REPRESENTATIVES AND THE SECRETARY OF THE SENATE
AND SHALL GIVE TO THOSE OFFICERS IN WRITING AND UNDER OATH, HIS NAME
AND BUSINESS ADDRESS, THE NAME AND ADDRESS OF THE PERSON BY WHOM HE IS
EMPLOYED, AND IN WHOSE INTEREST HE APPEARS OR WORKS, THE DURATION OF
SUCH EMPLOYMENT, HOW MUCH HE IS PAID AND IS TO RECEIVE, BY WHOM HE IS
PAID OR IS TO BE PAID, HOW MUCH HE IS TO BE PAID FOR EXPENSES, AND WHAT
EXPENSES ARE TO BE INCLUDED.  EACH SUCH PERSON SO REGISTERING SHALL,
BETWEEN THE FIRST AND TENTH DAY OF EACH CALENDAR QUARTER, SO LONG AS
HIS ACTIVITY CONTINUES, FILE WITH THE CLERK AND SECRETARY A DETAILED
REPORT UNDER OATH OF ALL MONEY RECEIVED AND EXPENDED BY HIM DURING THE
PRECEDING CALENDAR QUARTER IN CARRYING ON HIS WORK; TO WHOM PAID; FOR
WHAT PURPOSES; AND THE NAMES OF ANY PAPERS, PERIODICALS, MAGAZINES, OR
OTHER PUBLICATIONS IN WHICH HE HAS CAUSED TO BE PUBLISHED ANY ARTICLES
OR EDITORIALS; AND THE PROPOSED LEGISLATION HE IS EMPLOYED TO SUPPORT
OR OPPOSE.  THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO ANY
PERSON WHO MERELY APPEARS BEFORE A COMMITTEE OF THE CONGRESS OF THE
UNITED STATES IN SUPPORT OF OR OPPOSITION TO LEGISLATION; NOR TO ANY
PUBLIC OFFICIAL ACTING IN HIS OFFICIAL CAPACITY; NOR IN THE CASE OF ANY
NEWSPAPER OR OTHER REGULARLY PUBLISHED PERIODICAL (INCLUDING ANY
INDIVIDUAL WHO OWNS, PUBLISHES, OR IS EMPLOYED BY ANY SUCH NEWSPAPER OR
PERIODICAL) WHICH IN THE ORDINARY COURSE OF BUSINESS PUBLISHES NEWS
ITEMS, EDITORIALS, OR OTHER COMMENTS, OR PAID ADVERTISEMENTS, WHICH
DIRECTLY OR INDIRECTLY URGE THE PASSAGE OR DEFEAT OF LEGISLATION, IF
SUCH NEWSPAPER, PERIODICAL, OR INDIVIDUAL, ENGAGES IN NO FURTHER OR
OTHER ACTIVITIES IN CONNECTION WITH THE PASSAGE OR DEFEAT OF SUCH
LEGISLATION, OTHER THAN TO APPEAR BEFORE A COMMITTEE OF THE CONGRESS OF
THE UNITED STATES IN SUPPORT OF OR IN OPPOSITION TO SUCH LEGISLATION. 

"(B)  ALL INFORMATION REQUIRED TO BE FILED UNDER THE PROVISIONS OF
THIS SECTION WITH THE CLERK OF THE HOUSE OF REPRESENTATIVES AND THE
SECRETARY OF THE SENATE SHALL BE COMPILED BY SAID CLERK AND SECRETARY,
ACTING JOINTLY, AS SOON AS PRACTICABLE AFTER THE CLOSE OF THE CALENDAR
QUARTER WITH RESPECT TO WHICH SUCH INFORMATION IS FILED AND SHALL BE
PRINTED IN THE CONGRESSIONAL RECORD." 

FN3  A THIRD COUNT UNDER SEC. 308 WAS ABATED ON THE DEATH OF THE
DEFENDANT AGAINST WHOM THE CHARGE WAS MADE. 

FN4  18 U.S.C. SEC. 3731.  SEE UNITED STATES V. PETRILLO, 332 U.S. 1,
5.  FOR "THE GOVERNMENT'S APPEAL DOES NOT OPEN THE WHOLE CASE."  UNITED
STATES V. BORDEN CO., 308 U.S. 188, 193. 

FN5 SEE JORDAN V. DE GEORGE, 341 U.S. 223, 230-232; QUARLES, SOME
STATUTORY CONSTRUCTION PROBLEMS AND APPROACHES IN CRIMINAL LAW, 3
VAND.  L. REV. 531, 539-543; NOTE, 62 HARV. L. REV. 77. 

FN6  CF. FOX V. WASHINGTON, 236 U.S. 273; MUSSER V. UTAH, 333 U.S.
95; WINTERS V. NEW YORK, 333 U.S. 507, 510. 

THIS RULE AS TO STATUTES CHARGED WITH VAGUENESS IS BUT ONE ASPECT OF
THE BROADER PRINCIPLE THAT THIS COURT, IF FAIRLY POSSIBLE, MUST
CONSTRUE CONGRESSIONAL ENACTMENTS SO AS TO AVOID A DANGER OF
UNCONSTITUTIONALITY.  UNITED STATES V. DELAWARE & HUDSON CO., 213 U.S.
366, 407-408; UNITED STATES V. CONGRESS OF INDUSTRIAL ORGANIZATIONS,
335 U.S. 106, 120-121; UNITED STATES V. RUMELY, 345 U.S. 41, 47.  THUS,
IN THE C.I.O. CASE, SUPRA, THIS COURT HELD THAT EXPENDITURES BY A LABOR
ORGANIZATION FOR THE PUBLICATION OF A WEEKLY PERIODICAL URGING SUPPORT
FOR A CERTAIN CANDIDATE IN A FORTHCOMING CONGRESSIONAL ELECTION WERE
NOT FORBIDDEN BY THE FEDERAL CORRUPT PRACTICES ACT, WHICH MAKES IT
UNLAWFUL FOR "  ...  ANY LABOR ORGANIZATION TO MAKE A CONTRIBUTION OR
EXPENDITURE IN CONNECTION WITH ANY CONGRESSIONAL ELECTION  ...  ." 
SIMILARLY, IN THE RUMELY CASE, SUPRA, THIS COURT CONSTRUED A HOUSE
RESOLUTION AUTHORIZING INVESTIGATION OF "ALL LOBBYING ACTIVITIES
INTENDED TO INFLUENCE, ENCOURAGE, PROMOTE, OR RETARD LEGISLATION" TO
COVER ONLY "'LOBBYING IN ITS COMMONLY ACCEPTED SENSE,' THAT IS,
'REPRESENTATIONS MADE DIRECTLY TO THE CONGRESS, ITS MEMBERS, OR ITS
COMMITTEES.'" 

FN7  SECTION 302(C) DEFINES THE TERM "PERSON" AS INCLUDING "AN
INDIVIDUAL, PARTNERSHIP, COMMITTEE, ASSOCIATION, CORPORATION, AND ANY
OTHER ORGANIZATION OR GROUP OF PERSONS." 

FN8  THE GOVERNMENT'S VIEW IS BASED ON A VARIANCE BETWEEN THE
LANGUAGE OF SEC. 307 AND THE LANGUAGE OF SEC. 305.  SECTION 307 REFERS
TO ANY PERSON WHO "SOLICITS, COLLECTS, OR RECEIVES" CONTRIBUTIONS; SEC.
305, HOWEVER, REFERS NOT ONLY TO "RECEIVING ANY CONTRIBUTIONS" BUT ALSO
TO "EXPENDING ANY MONEY."  IT IS APPARENTLY THE GOVERNMENT'S CONTENTION
THAT SEC. 307 - SINCE IT MAKES NO REFERENCE TO EXPENDITURES - IS
INAPPLICABLE TO THE EXPENDITURE PROVISIONS OF SEC. 305.  SECTION 307,
HOWEVER, LIMITS THE APPLICATION OF SEC. 305 AS A WHOLE, NOT MERELY A
PART OF IT. 

FN9  BOTH THE SENATE AND HOUSE REPORTS ON THE BILL STATE THAT "THIS
REP. NO. 1400, 79TH CONG., 2D SESS., P. 28; COMMITTEE PRINT, JULY 22,
1946, STATEMENT BY REPRESENTATIVE MONRONEY ON LEGISLATIVE
REORGANIZATION ACT OF 1946, 79TH CONG., 2D SESS., P. 34.  SEE ALSO THE
REMARKS OF REPRESENTATIVE DIRKSEN IN PRESENTING THE BILL TO THE HOUSE:
"THE GIST OF THE ANTILOBBYING PROVISION IS CONTAINED IN SECTION 307." 
92 CONG. REC. 10088. 

FN10  THE LOBBYING ACT WAS ENACTED AS TITLE III OF THE LEGISLATIVE
REORGANIZATION ACT OF 1946, WHICH WAS REPORTED TO CONGRESS BY THE JOINT
COMMITTEE ON THE ORGANIZATION OF CONGRESS.  THE SENATE AND HOUSE
REPORTS ACCOMPANYING THE BILL WERE IDENTICAL WITH RESPECT TO TITLE
III.  BOTH DECLARED THAT THE LOBBYING ACT APPLIES "CHIEFLY TO THREE
DISTINCT CLASSES OF SO-CALLED LOBBYISTS: 

"FIRST.  THOSE WHO DO NOT VISIT THE CAPITOL BUT INITIATE PROPAGANDA
FROM ALL OVER THE COUNTRY IN THE FORM OF LETTERS AND TELEGRAMS, MANY OF
WHICH HAVE BEEN BASED ENTIRELY UPON MISINFORMATION AS TO FACTS.  THIS
CLASS OF PERSONS AND ORGANIZATIONS WILL BE REQUIRED UNDER THE TITLE,
NOT TO CEASE OR CURTAIL THEIR ACTIVITIES IN ANY RESPECT, BUT MERELY TO
DISCLOSE THE SOURCES OF THEIR COLLECTIONS AND THE METHODS IN WHICH THEY
ARE DISBURSED. 

"SECOND.  THE SECOND CLASS OF LOBBYISTS ARE THOSE WHO ARE EMPLOYED TO
COME TO THE CAPITOL UNDER THE FALSE IMPRESSION THAT THEY EXERT SOME
POWERFUL INFLUENCE OVER MEMBERS OF CONGRESS.  THESE INDIVIDUALS SPEND
THEIR TIME IN WASHINGTON PRESUMABLY EXERTING SOME MYSTERIOUS INFLUENCE
WITH RESPECT TO THE LEGISLATION IN WHICH THEIR EMPLOYERS ARE
INTERESTED, BUT CAREFULLY CONCEAL FROM MEMBERS OF CONGRESS WHOM THEY
HAPPEN TO CONTACT THE PURPOSE OF THEIR PRESENCE.  THE TITLE IN NO WISE
PROHIBITS OR CURTAILS THEIR ACTIVITIES.  IT MERELY REQUIRES THAT THEY
SHALL REGISTER AND DISCLOSE THE SOURCES AND PURPOSES OF THEIR
EMPLOYMENT AND THE AMOUNT OF THEIR COMPENSATION. 

"THIRD.  THERE IS A THIRD CLASS OF ENTIRELY HONEST AND RESPECTABLE
REPRESENTATIVES OF BUSINESS, PROFESSIONAL, AND PHILANTHROPIC
ORGANIZATIONS WHO COME TO WASHINGTON OPENLY AND FRANKLY TO EXPRESS
THEIR VIEWS FOR OR AGAINST LEGISLATION, MANY OF WHOM SERVE A USEFUL AND
PERFECTLY LEGITIMATE PURPOSE IN EXPRESSING THE VIEWS AND
INTERPRETATIONS OF THEIR EMPLOYERS WITH RESPECT TO LEGISLATION WHICH
CONCERNS THEM.  THEY WILL LIKEWISE BE REQUIRED TO REGISTER AND STATE
THEIR COMPENSATION AND THE SOURCES OF THEIR EMPLOYMENT." 

S. REP. NO. 1400, 79TH CONG., 2D SESS., P. 27; COMMITTEE PRINT, JULY
22, 1946, STATEMENT BY REPRESENTATIVE MONRONEY ON LEGISLATIVE
REORGANIZATION ACT OF 1946, 79TH CONG., 2D SESS., PP. 32-33.  SEE ALSO
THE STATEMENT IN THE SENATE BY SENATOR LA FOLLETTE, WHO WAS CHAIRMAN OF
THE JOINT COMMITTEE, AT 92 CONG. REC. 6367-6368. 

FN11  SEE THE ACT'S SEPARABILITY CLAUSE, NOTE 18, INFRA, PROVIDING
THAT THE INVALIDITY OF ANY APPLICATION OF THE ACT SHOULD NOT AFFECT THE
VALIDITY OF ITS APPLICATION "TO OTHER PERSONS AND CIRCUMSTANCES." 

FN12  BOTH THE SENATE AND HOUSE REPORTS ACCOMPANYING THE BILL STATE
THAT THE ACT "  ...  DOES NOT APPLY TO ORGANIZATIONS FORMED FOR OTHER
PURPOSES WHOSE EFFORTS TO INFLUENCE LEGISLATION ARE MERELY INCIDENTAL
TO THE PURPOSES FOR WHICH FORMED."  S. REP. NO. 1400, 79TH CONG., 2D
SESS., P. 27; COMMITTEE PRINT, JULY 22, 1946, STATEMENT BY
REPRESENTATIVE MONRONEY ON LEGISLATIVE REORGANIZATION ACT OF 1946, 79TH
CONG., 2D SESS., P. 32.  IN THE SENATE DISCUSSION PRECEDING ENACTMENT,
SENATOR HAWKES ASKED SENATOR LA FOLLETTE, CHAIRMAN OF THE JOINT
COMMITTEE IN CHARGE OF THE BILL, FOR AN EXPLANATION OF THE "PRINCIPAL
PURPOSE" REQUIREMENT.  IN PARTICULAR, SENATOR HAWKES SOUGHT ASSURANCE
THAT MULTI-PURPOSED ORGANIZATIONS LIKE THE UNITED STATES CHAMBER OF
COMMERCE WOULD NOT BE SUBJECT TO THE ACT.  SENATOR LA FOLLETTE REFUSED
TO GIVE SUCH ASSURANCE, STATING:  "SO FAR AS ANY ORGANIZATIONS OR
INDIVIDUALS ARE CONCERNED, I WILL SAY TO THE SENATOR FROM NEW JERSEY,
IT WILL DEPEND ON THE TYPE AND CHARACTER OF ACTIVITY WHICH THEY
UNDERTAKE  ...  .  I CANNOT TELL THE SENATOR WHETHER THEY WILL COME
UNDER THE ACT.  IT WILL DEPEND ON THE TYPE OF ACTIVITY IN WHICH THEY
ENGAGE, SO FAR AS LEGISLATION IS CONCERNED  ...  .  IT (THE ACT)
AFFECTS ALL INDIVIDUALS AND ORGANIZATIONS ALIKE IF THEY ENGAGE IN A
COVERED ACTIVITY."  92 CONG. REC. 10151-10152.  SEE ALSO REPRESENTATIVE
DIRKSEN'S REMARKS IN THE HOUSE, 92 CONG. REC. 10088. 

FN13  SUCH A CRITERION IS NOT NOVEL IN FEDERAL LAW.  SEE INT. REV.
CODE, SEC. 23(O)(2) (INCOME TAX), SEC. 812(D) (ESTATE TAX), AND SEC.
1004(A)(2)(B) (GIFT TAX), PROVIDING TAX EXEMPTION FOR CONTRIBUTIONS TO
CHARITABLE AND EDUCATIONAL ORGANIZATIONS "NO SUBSTANTIAL PART OF THE
ACTIVITIES OF WHICH IS CARRYING ON PROPAGANDA, OR OTHERWISE ATTEMPTING,
TO INFLUENCE LEGISLATION."  FOR ILLUSTRATIVE CASES APPLYING THIS
CRITERION, SEE SHARPE'S ESTATE V. COMMISSIONER, 148 F.2D 179 (C.A. 3D
CIR.); MARSHALL V. COMMISSIONER, 147 F.2D 75 (C.A.2D CIR.); FAULKNER V.
COMMISSIONER, 112 F.2D 987 (C.A. 1ST CIR.); HUNTINGTON NATIONAL BANK V.
COMMISSIONER, 13 T.C. 760, 769.  CF. GIRARD TRUST CO. V. COMMISSIONER,
122 F.2D 108 (C.A. 3D CIR.); LEUBUSCHER V. COMMISSIONER, 54 F.2D 998
(C.A.2D CIR.); WEYL V. COMMISSIONER, 48 F.2D 811 (C.A.2D CIR.); SLEE V.
COMMISSIONER, 42 F.2D 184 (C.A.2D CIR.).  SEE ALSO ANNOTATION, 138
A.L.R. 456. 

FN14  FOR THE THREE EXCEPTIONS, SEE NOTE 2, SUPRA. 

FN15  UNDER THIS CONSTRUCTION, THE ACT IS AT LEAST AS DEFINITE AS
MANY OTHER CRIMINAL STATUTES WHICH THIS COURT HAS UPHELD AGAINST A
CHARGE OF VAGUENESS.  E.G., BOYCE MOTOR LINES V. UNITED STATES, 342
U.S. 337 (REGULATION PROVIDING THAT DRIVERS OF MOTOR VEHICLES CARRYING
EXPLOSIVES "SHALL AVOID, SO FAR AS PRACTICABLE, AND, WHERE FEASIBLE, BY
PREARRANGEMENT OF ROUTES, DRIVING INTO OR THROUGH CONGESTED
THOROUGHFARES, PLACES WHERE CROWDS ARE ASSEMBLED, STREET CAR TRACKS,
TUNNELS, VIADUCTS, AND DANGEROUS CROSSINGS"); DENNIS V. UNITED STATES,
341 U.S. 494 (SMITH ACT MAKING IT UNLAWFUL FOR ANY PERSON TO CONSPIRE
"TO KNOWINGLY OR WILLFULLY ADVOCATE, ABET, ADVISE, OR TEACH THE DUTY,
NECESSITY, DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR DESTROYING ANY
GOVERNMENT IN THE UNITED STATES BY FORCE OR VIOLENCE  ...  ."); UNITED
STATES V. PETRILLO, 332 U.S. 1 (STATUTE FORBIDDING COERCION OF RADIO
STATIONS TO EMPLOY PERSONS "IN EXCESS OF THE NUMBER OF EMPLOYEES NEEDED
...  TO PERFORM ACTUAL SERVICES"); SCREWS V. UNITED STATES, 325 U.S.
91, AND WILLIAMS V. UNITED STATES, 341 U.S. 97 (STATUTE FORBIDDING ACTS
WHICH WOULD DEPRIVE A PERSON OF "ANY RIGHTS, PRIVILEGES, OR IMMUNITIES
SECURED OR PROTECTED BY THE CONSTITUTION AND LAWS OF THE UNITED
STATES"); UNITED STATES V. WURZBACH, 280 U.S. 396 (STATUTE FORBIDDING
ANY CANDIDATE FOR CONGRESS OR ANY OFFICER OR EMPLOYEE OF THE UNITED
STATES TO SOLICIT OR RECEIVE A "CONTRIBUTION FOR ANY POLITICAL PURPOSE
WHATEVER" FROM ANY OTHER SUCH OFFICER OR EMPLOYEE); OMAECHEVARRIA V.
IDAHO, 246 U.S. 343 (STATUTE FORBIDDING PASTURING OF SHEEP "ON ANY
CATTLE RANGE PREVIOUSLY OCCUPIED BY CATTLE, OR UPON ANY RANGE USUALLY
OCCUPIED BY ANY CATTLE GROWER"); FOX V. WASHINGTON, 236 U.S. 273 (STATE
STATUTE IMPOSING CRIMINAL SANCTIONS ON "EVERY PERSON WHO SHALL WILFULLY
PRINT, PUBLISH, EDIT, ISSUE, OR KNOWINGLY CIRCULATE, SELL, DISTRIBUTE
OR DISPLAY ANY BOOK, PAPER, DOCUMENT, OR WRITTEN OR PRINTED MATTER, IN
ANY FORM, ADVOCATING, ENCOURAGING OR INCITING, OR HAVING A TENDENCY TO
ENCOURAGE OR INCITE THE COMMISSION OF ANY CRIME, BREACH OF THE PEACE OR
ACT OF VIOLENCE, OR WHICH SHALL TEND TO ENCOURAGE OR ADVOCATE
DISRESPECT FOR LAW OR FOR ANY COURT OR COURTS OF JUSTICE  ...  .");
NASH V. UNITED STATES, 229 U.S. 373 (SHERMAN ACT FORBIDDING "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").  CF. JORDAN V. DE GEORGE, 341 U.S. 223 (STATUTE
PROVIDING FOR DEPORTATION OF PERSONS WHO HAVE COMMITTED CRIMES
INVOLVING "MORAL TURPITUDE"). 

FN16  SIMILAR LEGISLATION HAS BEEN ENACTED IN OVER TWENTY STATES. 
SEE NOTES, 56 YALE L.J.  304, 313-316, AND 47 COL. L. REV. 98, 99-103. 

FN17  SIMILARLY, THE HATCH ACT PROBABLY DETERS SOME FEDERAL EMPLOYEES
FROM POLITICAL ACTIVITY PERMITTED BY THAT STATUTE, BUT YET WAS
SUSTAINED BECAUSE OF THE NATIONAL INTEREST IN A NONPOLITICAL CIVIL
SERVICE.  UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75. 

FN18  60 STAT. 812, 814: 

"IF ANY PROVISION OF THIS ACT OR THE APPLICATION THEREOF TO ANY
PERSON OR CIRCUMSTANCES IS HELD INVALID, THE VALIDITY OF THE REMAINDER
OF THE ACT AND OF THE APPLICATION OF SUCH PROVISION TO OTHER PERSONS
AND CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY." 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I AM IN SYMPATHY WITH THE EFFORT OF THE COURT TO SAVE THIS STATUTE
FROM THE CHARGE THAT IT IS SO VAGUE AND INDEFINITE AS TO BE
UNCONSTITUTIONAL.  MY INCLINATIONS WERE THAT WAY AT THE END OF THE ORAL
ARGUMENT.  BUT FURTHER STUDY CHANGED MY MIND.  I AM NOW CONVINCED THAT
THE FORMULA ADOPTED TO SAVE THIS ACT IS TOO DANGEROUS FOR USE.  IT CAN
EASILY ENSNARE PEOPLE WHO HAVE DONE NO MORE THAN EXERCISE THEIR
CONSTITUTIONAL RIGHTS OF SPEECH, ASSEMBLY, AND PRESS. 

WE DEAL HERE WITH THE VALIDITY OF A CRIMINAL STATUTE.  TO USE THE
TEST OF CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, 391, THE
QUESTION IS WHETHER THIS STATUTE "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."  IF
IT IS SO VAGUE, AS I THINK THIS ONE IS, THEN IT FAILS TO MEET THE
STANDARDS REQUIRED BY DUE PROCESS OF LAW.  SEE UNITED STATES V.
PETRILLO, 332 U.S. 1.  IN DETERMINING THAT QUESTION WE CONSIDER THE
STATUTE ON ITS FACE.  AS STATED IN LANZETTA V. NEW JERSEY, 306 U.S.
451, 453: 

"IF ON ITS FACE THE CHALLENGED PROVISION IS REPUGNANT TO THE DUE
PROCESS CLAUSE, SPECIFICATION OF DETAILS OF THE OFFENSE INTENDED TO BE
CHARGED WOULD NOT SERVE TO VALIDATE IT  ...  .  IT IS THE STATUTE, NOT
THE ACCUSATION UNDER IT, THAT PRESCRIBES THE RULE TO GOVERN CONDUCT AND
WARNS AGAINST TRANSGRESSION  ...  .  NO ONE MAY BE REQUIRED AT PERIL OF
LIFE, LIBERTY OR PROPERTY TO SPECULATE AS TO THE MEANING OF PENAL
STATUTES.  ALL ARE ENTITLED TO BE INFORMED AS TO WHAT THE STATE
COMMANDS OR FORBIDS." 

AND SEE WINTERS V. NEW YORK, 333 U.S. 507, 515. 

THE QUESTION THEREFORE IS NOT WHAT THE INFORMATION CHARGES NOR WHAT
THE PROOF MIGHT BE.  IT IS WHETHER THE STATUTE ITSELF IS SUFFICIENTLY
NARROW AND PRECISE AS TO GIVE FAIR WARNING. 

IT IS CONTENDED THAT THE ACT PLAINLY APPLIES. 

- TO PERSONS WHO PAY OTHERS TO PRESENT VIEWS TO CONGRESS EITHER IN
COMMITTEE HEARINGS OR BY LETTERS OR OTHER COMMUNICATIONS TO CONGRESS OR
CONGRESSMEN AND. 

- TO PERSONS WHO SPEND MONEY TO INDUCE OTHERS TO COMMUNICATE WITH
CONGRESS. 

THE COURT ADOPTS THAT VIEW, WITH ONE MINOR LIMITATION WHICH THE COURT
PLACES ON THE ACT - THAT ONLY PERSONS WHO SOLICIT, COLLECT, OR RECEIVE
MONEY ARE INCLUDED. 

THE DIFFICULTY IS THAT THE ACT HAS TO BE REWRITTEN AND WORDS ACTUALLY
ADDED AND SUBTRACTED TO PRODUCE THAT RESULT. 

INDIRECTLY" SOLICITS, COLLECTS, OR RECEIVES CONTRIBUTIONS "TO BE USED
PRINCIPALLY TO AID, OR THE PRINCIPAL PURPOSE OF WHICH PERSON IS TO AID"
IN EITHER. 

- THE "PASSAGE OR DEFEAT OF ANY LEGISLATION" BY CONGRESS, OR: 

- "TO INFLUENCE, DIRECTLY OR INDIRECTLY, THE PASSAGE OR DEFEAT OF ANY
LEGISLATION" BY CONGRESS. 

WE START WITH AN ALL-INCLUSIVE DEFINITION OF "LEGISLATION" CONTAINED
IN SEC. 302(E).  IT MEANS "BILLS, RESOLUTIONS, AMENDMENTS, NOMINATIONS,
AND OTHER MATTERS PENDING OR PROPOSED IN EITHER HOUSE OF CONGRESS, AND
INCLUDES ANY OTHER MATTER WHICH MAY BE THE SUBJECT OF ACTION BY EITHER
HOUSE."  WHAT IS THE SCOPE OF "ANY OTHER MATTER WHICH MAY BE THE
SUBJECT OF ACTION" BY CONGRESS?  IT WOULD SEEM TO INCLUDE NOT ONLY
PENDING OR PROPOSED LEGISLATION BUT ANY MATTER WITHIN THE LEGITIMATE
DOMAIN OF CONGRESS. 

WHAT CONTRIBUTIONS MIGHT BE USED "PRINCIPALLY TO AID" IN INFLUENCING
"DIRECTLY OR INDIRECTLY, THE PASSAGE OR DEFEAT" OF ANY SUCH MEASURE BY
CONGRESS?  WHEN IS ONE RETAINED FOR THE PURPOSE OF INFLUENCING THE
"PASSAGE OR DEFEAT OF ANY LEGISLATION"? 

(1)  ONE WHO ADDRESSES A TRADE UNION FOR REPEAL OF A LABOR LAW
CERTAINLY HOPES TO INFLUENCE LEGISLATION. 

(2)  SO DOES A MANUFACTURERS' ASSOCIATION WHICH RUNS ADS IN
NEWSPAPERS FOR A SALES TAX. 

(3)  SO DOES A FARM GROUP WHICH UNDERTAKES TO RAISE MONEY FOR AN
EDUCATIONAL PROGRAM TO BE CONDUCTED IN NEWSPAPERS, MAGAZINES, AND ON
RADIO AND TELEVISION, SHOWING THE NEED FOR REVISION OF OUR ATTITUDE ON
WORLD TRADE. 

(4)  SO DOES A GROUP OF OIL COMPANIES WHICH PUTS AGENTS IN THE
NATION'S CAPITAL TO SOUND THE ALARM AT HOSTILE LEGISLATION, TO EXERT
INFLUENCE ON CONGRESSMEN TO DEFEAT IT, TO WORK ON THE HILL FOR THE
PASSAGE OF LAWS FAVORABLE TO THE OIL INTERESTS. 

(5)  SO DOES A BUSINESS, LABOR, FARM, RELIGIOUS, SOCIAL, RACIAL, OR
OTHER GROUP WHICH RAISES MONEY TO CONTACT PEOPLE WITH THE REQUEST THAT
THEY WRITE THEIR CONGRESSMAN TO GET A LAW REPEALED OR MODIFIED, TO GET
A PROPOSED LAW PASSED, OR THEMSELVES TO PROPOSE A LAW. 

ARE ALL OF THESE ACTIVITIES COVERED BY THE ACT?  IF ONE IS INCLUDED
WHY ARE NOT THE OTHERS?  THE COURT APPARENTLY EXCLUDES THE KIND OF
ACTIVITIES LISTED IN CATEGORIES (1), (2), AND (3) AND INCLUDES PART OF
THE ACTIVITIES IN (4) AND (5) - THOSE WHICH ENTAIL CONTACTS WITH THE
CONGRESS. 

THERE IS, HOWEVER, DIFFICULTY IN THAT COURSE, A DIFFICULTY WHICH
SEEMS TO ME TO BE INSUPERABLE.  I FIND NO WARRANT IN THE ACT FOR
DRAWING THE LINE, AS THE COURT DOES, BETWEEN "DIRECT COMMUNICATION WITH
CONGRESS" AND OTHER PRESSURES ON CONGRESS.  THE ACT IS AS MUCH
CONCERNED WITH ONE AS WITH THE OTHER. 

THE WORDS "DIRECT COMMUNICATION WITH CONGRESS" ARE NOT IN THE ACT. 
CONGRESS WAS CONCERNED WITH THE RAISING OF MONEY TO AID IN THE PASSAGE
OR DEFEAT OF LEGISLATION, WHATEVER TACTICS WERE USED.  BUT THE COURT
NOT ONLY STRIKES OUT ONE WHOLE GROUP OF ACTIVITIES - TO INFLUENCE
"INDIRECTLY" - BUT SUBSTITUTES A NEW CONCEPT FOR THE REMAINING GROUP -
TO INFLUENCE "DIRECTLY."  TO INFLUENCE "DIRECTLY" THE PASSAGE OR DEFEAT
OF LEGISLATION INCLUDES ANY NUMBER OF METHODS - FOR EXAMPLE, NATIONWIDE
RADIO, TELEVISION OR ADVERTISING PROGRAMS PROMOTING A PARTICULAR
MEASURE, AS WELL AS THE "BUTTONHOLING" OF CONGRESSMEN.  TO INCLUDE THE
LATTER WHILE EXCLUDING THE FORMER IS TO REWRITE THE ACT. 

THIS IS NOT A CASE WHERE ONE OR MORE DISTINCT TYPES OF "LOBBYING" ARE
SPECIFICALLY PROSCRIBED AND ANOTHER AND DIFFERENT GROUP DEFINED IN SUCH
LOOSE, BROAD TERMS AS TO MAKE ITS DEFINITION VAGUE AND UNCERTAIN.  HERE
IF WE GIVE THE WORDS OF THE ACT THEIR ORDINARY MEANING, WE DO NOT KNOW
WHAT THE TERMINAL POINTS ARE.  JUDGING FROM THE WORDS CONGRESS USED,
ONE TYPE OF ACTIVITY WHICH I HAVE ENUMERATED IS AS MUCH PROSCRIBED AS
ANOTHER. 

THE IMPORTANCE OF THE PROBLEM IS EMPHASIZED BY REASON OF THE FACT
THAT THIS LEGISLATION IS IN THE DOMAIN OF THE FIRST AMENDMENT.  THAT
AMENDMENT PROVIDES THAT "CONGRESS SHALL MAKE NO LAW  ... ABRIDGING THE
FREEDOM OF SPEECH, OR OF THE PRESS; OR THE RIGHT OF THE PEOPLE  ...  TO
PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES." 

CAN CONGRESS REQUIRE ONE TO REGISTER BEFORE HE WRITES AN ARTICLE,
MAKES A SPEECH, FILES AN ADVERTISEMENT, APPEARS ON RADIO OR TELEVISION,
OR WRITES A LETTER SEEKING TO INFLUENCE EXISTING, PENDING, OR PROPOSED
LEGISLATION?  THAT WOULD POSE A CONSIDERABLE QUESTION UNDER THE FIRST
AMENDMENT, AS THOMAS V. COLLINS, 323 U.S. 516, INDICATES.  I DO NOT
MEAN TO INTIMATE THAT CONGRESS IS WITHOUT POWER TO REQUIRE DISCLOSURE
OF THE REAL PRINCIPALS BEHIND THOSE WHO COME TO CONGRESS (OR GET OTHERS
TO DO SO) AND SPEAK AS THOUGH THEY REPRESENT THE PUBLIC INTEREST, WHEN
IN FACT THEY ARE UNDISCLOSED AGENTS OF SPECIAL GROUPS.  I MENTION THE
FIRST AMENDMENT TO EMPHASIZE WHY STATUTES TOUCHING THIS FIELD SHOULD BE
"NARROWLY DRAWN TO PREVENT THE SUPPOSED EVIL" (SEE CANTWELL V.
CONNECTICUT, 310 U.S. 296, 307) AND NOT BE CAST IN SUCH VAGUE AND
INDEFINITE TERMS AS TO CAST A CLOUD ON THE EXERCISE OF CONSTITUTIONAL
RIGHTS.  CF. STROMBERG V. CALIFORNIA, 283 U.S. 359, 369; THORNHILL V.
ALABAMA, 310 U.S. 88, 97-98; WINTERS V. NEW YORK, 333 U.S. 507, 509;
JOSEPH BURSTYN, INC.  V. WILSON, 343 U.S. 495, 504-505. 

IF THAT RULE WERE RELAXED, IF CONGRESS COULD IMPOSE REGISTRATION
REQUIREMENTS ON THE EXERCISE OF FIRST AMENDMENT RIGHTS, SAVING TO THE
COURTS THE SALVAGE OF THE GOOD FROM THE BAD, AND MEANWHILE CAUSING ALL
WHO MIGHT POSSIBLY BE COVERED TO ACT AT THEIR PERIL, THE LAW WOULD IN
PRACTICAL EFFECT BE A DETERRENT TO THE EXERCISE OF FIRST AMENDMENT
RIGHTS.  THE COURT SEEKS TO AVOID THAT CONSEQUENCE BY CONSTRUING THE
LAW NARROWLY AS APPLYING ONLY TO THOSE WHO ARE PAID TO "BUTTONHOLE"
CONGRESSMEN OR WHO COLLECT AND EXPEND MONEYS TO GET OTHERS TO DO SO.
IT MAY BE APPROPRIATE IN SOME CASES TO READ A STATUTE WITH THE GLOSS A
COURT HAS PLACED ON IT IN ORDER TO SAVE IT FROM THE CHARGE OF
VAGUENESS.  SEE FOX V. WASHINGTON, 236 U.S. 273, 277.  BUT I DO NOT
THINK THAT COURSE IS APPROPRIATE HERE. 

THE LANGUAGE OF THE ACT IS SO BROAD THAT ONE WHO WRITES A LETTER OR
MAKES A SPEECH OR PUBLISHES AN ARTICLE OR DISTRIBUTES LITERATURE OR
DOES MANY OF THE OTHER THINGS WITH WHICH APPELLEES ARE CHARGED HAS NO
FAIR NOTICE WHEN HE IS CLOSE TO THE PROHIBITED LINE.  NO CONSTRUCTION
WE GIVE IT TODAY WILL MAKE CLEAR RETROACTIVELY THE VAGUE STANDARDS THAT
CONFRONTED APPELLEES WHEN THEY DID THE ACTS NOW CHARGED AGAINST THEM AS
CRIMINAL.  CF.  PIERCE V. UNITED STATES, 314 U.S. 306, 311.  SINCE THE
ACT TOUCHES ON THE EXERCISE OF FIRST AMENDMENT RIGHTS, AND IS NOT
NARROWLY DRAWN TO MEET PRECISE EVILS, ITS VAGUENESS HAS SOME OF THE
EVILS OF A CONTINUOUS AND EFFECTIVE RESTRAINT. 

MR. JUSTICE JACKSON, DISSENTING. 

SEVERAL REASONS LEAD ME TO WITHHOLD MY ASSENT FROM THIS DECISION. 

THE CLEAREST FEATURE OF THIS CASE IS THAT IT BEGINS WITH AN ACT SO
MISCHIEVOUSLY VAGUE THAT THE GOVERNMENT CHARGED WITH ITS ENFORCEMENT
DOES NOT UNDERSTAND IT, FOR SOME OF ITS IMPORTANT ASSUMPTIONS ARE
REJECTED BY THE COURT'S INTERPRETATION.  THE CLEAREST FEATURE OF THE
COURT'S DECISION IS THAT IT LEAVES THE COUNTRY UNDER AN ACT WHICH IS
NOT MUCH LIKE ANY ACT PASSED BY CONGRESS.  OF COURSE, WHEN SUCH A
QUESTION IS BEFORE US, IT IS EASY TO DIFFER AS TO WHETHER IT IS MORE
APPROPRIATE TO STRIKE OUT OR TO STRIKE DOWN.  BUT I RECALL FEW CASES IN
WHICH THE COURT HAS GONE SO FAR IN REWRITING AN ACT.    THE ACT PASSED
BY CONGRESS WOULD APPEAR TO APPLY TO ALL PERSONS WHO (1) SOLICIT OR
RECEIVE FUNDS FOR THE PURPOSE OF LOBBYING, (2) RECEIVE AND EXPEND FUNDS
FOR THE PURPOSE OF LOBBYING, OR (3) MERELY EXPEND FUNDS FOR THE PURPOSE
OF LOBBYING.  THE COURT AT LEAST ELIMINATES THIS LAST CATEGORY FROM
COVERAGE OF THE ACT, THOUGH I SHOULD SUPPOSE THAT MORE SERIOUS EVILS
AFFECTING THE PUBLIC INTEREST ARE TO BE FOUND IN THE WAY LOBBYISTS
SPEND THEIR MONEY THAN IN THE WAYS THEY OBTAIN IT.  IN THE PRESENT
INDICTMENTS, SIX COUNTS RELATE EXCLUSIVELY TO FAILURES TO REPORT
EXPENDITURES WHILE ONLY ONE APPEARS TO REST EXCLUSIVELY ON FAILURE TO
REPORT RECEIPTS. 

ALSO, CONGRESS ENACTED A STATUTE TO REACH THE RAISING AND SPENDING OF
FUNDS FOR THE PURPOSE OF INFLUENCING CONGRESSIONAL ACTION DIRECTLY OR
INDIRECTLY.  THE COURT ENTIRELY DELETES "INDIRECTLY" AND NARROWS
"DIRECTLY" TO MEAN "DIRECT COMMUNICATION WITH MEMBERS OF CONGRESS." 
THESE TWO CONSTRUCTIONS LEAVE THE ACT TOUCHING ONLY A PART OF THE
PRACTICES CONGRESS DEEMED SINISTER. 

FINALLY, AS IF TO COMPENSATE FOR ITS DELETIONS FROM THE ACT, THE
COURT EXPANDS THE PHRASE "THE PRINCIPAL PURPOSE" SO THAT IT NOW REFERS
TO ANY CONTRIBUTION WHICH "IN SUBSTANTIAL PART" IS USED TO INFLUENCE
LEGISLATION. 

I AGREE, OF COURSE, THAT WE SHOULD MAKE LIBERAL INTERPRETATIONS TO
SAVE LEGISLATIVE ACTS, INCLUDING PENAL STATUTES WHICH PUNISH CONDUCT
TRADITIONALLY RECOGNIZED AS MORALLY "WRONG."  WHOEVER KIDNAPS, STEALS,
KILLS, OR COMMITS SIMILAR ACTS OF VIOLENCE UPON ANOTHER IS BOUND TO
KNOW THAT HE IS INVITING RETRIBUTION BY SOCIETY, AND MANY OF THE
STATUTES WHICH DEFINE THESE LONG-ESTABLISHED CRIMES ARE TRADITIONALLY
AND PERHAPS NECESSARILY VAGUE.  BUT WE ARE DEALING WITH A NOVEL OFFENSE
THAT HAS NO ESTABLISHED BOUNDS AND NO SUCH MORAL BASIS.  THE
CRIMINALITY OF THE CONDUCT DEALT WITH HERE DEPENDS ENTIRELY UPON A
PURPOSE TO INFLUENCE LEGISLATION.  THOUGH THERE MAY BE MANY ABUSES IN
PURSUIT OF THIS PURPOSE, THIS ACT DOES NOT DEAL WITH CORRUPTION.  THESE
DEFENDANTS, FOR EXAMPLE, ARE INDICTED FOR FAILING TO REPORT THEIR
ACTIVITIES IN RAISING AND SPENDING MONEY TO INFLUENCE LEGISLATION IN
SUPPORT OF FARM PRICES, WITH NO CHARGE OF CORRUPTION, BRIBERY,
DECEPTION, OR OTHER IMPROPER ACTION.  THIS MAY BE A SELFISH BUSINESS
AND AGAINST THE BEST INTERESTS OF THE NATION AS A WHOLE, BUT IT IS IN
AN AREA WHERE LEGAL PENALTIES SHOULD BE APPLIED ONLY BY FORMULAE AS
PRECISE AND CLEAR AS OUR LANGUAGE WILL PERMIT. 

THE FIRST AMENDMENT FORBIDS CONGRESS TO ABRIDGE THE RIGHT OF THE
PEOPLE "TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES."  IF
THIS RIGHT IS TO HAVE AN INTERPRETATION CONSISTENT WITH THAT GIVEN TO
OTHER FIRST AMENDMENT RIGHTS, IT CONFERS A LARGE IMMUNITY UPON
ACTIVITIES OF PERSONS, ORGANIZATIONS, GROUPS AND CLASSES TO OBTAIN WHAT
THEY THINK IS DUE THEM FROM GOVERNMENT.  OF COURSE, THEIR CONFLICTING
CLAIMS AND PROPAGANDA ARE CONFUSING, ANNOYING AND AT TIMES, NO DOUBT,
DECEIVING AND CORRUPTING.  BUT WE MAY NOT FORGET THAT OUR
CONSTITUTIONAL SYSTEM IS TO ALLOW THE GREATEST FREEDOM OF ACCESS TO
CONGRESS, SO THAT THE PEOPLE MAY PRESS FOR THEIR SELFISH INTERESTS,
WITH CONGRESS ACTING AS ARBITER OF THEIR DEMANDS AND CONFLICTS. 

IN MATTERS OF THIS NATURE, IT DOES NOT SEEM WISE TO LEAVE THE SCOPE
OF A CRIMINAL ACT, CLOSE TO IMPINGING ON THE RIGHT OF PETITION,
DEPENDENT UPON JUDICIAL CONSTRUCTION FOR ITS LIMITATIONS.  JUDICIAL
CONSTRUCTION, CONSTITUTIONAL OR STATUTORY, ALWAYS IS SUBJECT TO HAZARDS
OF JUDICIAL RECONSTRUCTION.  ONE MAY RELY ON TODAY'S NARROW
INTERPRETATION ONLY AT HIS PERIL, FOR SOME LATER COURT MAY EXPAND THE
ACT TO INCLUDE, IN ACCORDANCE WITH ITS TERMS, WHAT TODAY THE COURT
EXCLUDES.  THIS RECENTLY HAPPENED WITH THE ANTI-TRUST LAWS, WHICH THE
COURT CITES AS BEING SIMILARLY VAGUE.  THIS COURT, IN A CRIMINAL CASE,
SUSTAINED AN INDICTMENT BY ADMITTEDLY CHANGING REPEATED AND LONG
ESTABLISHED CONSTITUTIONAL AND STATUTORY INTERPRETATIONS.  UNITED
STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533.  THE EX POST
FACTO PROVISION OF OUR CONSTITUTION HAS NOT BEEN HELD TO PROTECT THE
CITIZEN AGAINST A RETROACTIVE CHANGE IN DECISIONAL LAW, BUT IT DOES
AGAINST SUCH A PREJUDICIAL CHANGE IN LEGISLATION.  AS LONG AS THIS
STATUTE STANDS ON THE BOOKS, ITS VAGUENESS WILL BE A CONTINGENT THREAT
TO ACTIVITIES WHICH THE COURT TODAY RULES OUT, THE CONTINGENCY BEING A
CHANGE OF VIEWS BY THE COURT AS HEREAFTER CONSTITUTED. 

THE COURT'S OPINION PRESUPPOSES, AND I DO NOT DISAGREE, THAT CONGRESS
HAS POWER TO REGULATE LOBBYING FOR HIRE AS A BUSINESS OR PROFESSION AND
TO REQUIRE SUCH AGENTS TO DISCLOSE THEIR PRINCIPALS, THEIR ACTIVITIES,
AND THEIR RECEIPTS.  HOWEVER, TO REACH THE REAL EVILS OF LOBBYING
WITHOUT CUTTING INTO THE CONSTITUTIONAL RIGHT OF PETITION IS A
DIFFICULT AND DELICATE TASK FOR WHICH THE COURT'S ACTION TODAY GIVES
LITTLE GUIDANCE.  I AM IN DOUBT WHETHER THE ACT AS CONSTRUED DOES NOT
PERMIT APPLICATIONS WHICH WOULD ABRIDGE THE RIGHT OF PETITION, FOR
WHICH CLEAR, SAFE AND WORKABLE CHANNELS MUST BE MAINTAINED.  I THINK WE
SHOULD POINT OUT THE DEFECTS AND LIMITATIONS WHICH CONDEMN THIS ACT SO
CLEARLY THAT THE COURT CANNOT SUSTAIN IT AS WRITTEN, AND LEAVE ITS
REWRITING TO CONGRESS.  AFTER ALL, IT IS CONGRESS THAT SHOULD KNOW FROM
EXPERIENCE BOTH THE GOOD IN THE RIGHT OF PETITION AND THE EVILS OF
PROFESSIONAL LOBBYING. 
..END :

















BARBER V. GONZALES 347 U.S. 637 


NO. 431.  ARGUED MARCH 10, 1954 - DECIDED JUNE 7, 1954 - 207 F.2D 398,
AFFIRMED. 


RESPONDENT WAS BORN A NATIONAL OF THE UNITED STATES IN THE PHILIPPINE
ISLANDS, CAME TO THE CONTINENTAL UNITED STATES FROM THE PHILIPPINE
ISLANDS AS A NATIONAL PRIOR TO THE PHILIPPINE INDEPENDENCE ACT OF 1934,
HAS REMAINED WITHIN THIS COUNTRY EVER SINCE HIS ARRIVAL, AND WAS
SENTENCED TO IMPRISONMENT IN 1941 AND 1950 FOR TERMS OF ONE YEAR OR
MORE FOR CRIMES INVOLVING MORAL TURPITUDE.   HELD:  HE MAY NOT NOW BE
DEPORTED UNDER SEC. 19(A) OF THE IMMIGRATION ACT OF 1917 AS AN ALIEN
WHO HAD BEEN SO SENTENCED "AFTER ENTRY."  PP. 638-643. 

(A)  RESPONDENT IS NOT DEPORTABLE UNDER SEC. 19(A) OF THE IMMIGRATION
ACT OF 1917 UNLESS HE MADE AN "ENTRY" WITHIN THE MEANING OF THAT
PROVISION, NOTWITHSTANDING SEC. 8(A)(1) OF THE PHILIPPINE INDEPENDENCE
ACT WHICH PROVIDES THAT CITIZENS OF THE PHILIPPINE ISLANDS WHO ARE NOT
CITIZENS OF THE UNITED STATES SHALL BE CONSIDERED ALIENS FOR
IMMIGRATION PURPOSES.  PP. 639-640. 

(B)  WHEN RESPONDENT CAME TO THE UNITED STATES FROM THE PHILIPPINE
ISLANDS AS A NATIONAL PRIOR TO ENACTMENT OF THE PHILIPPINE INDEPENDENCE
ACT OF 1934, HE DID NOT MAKE AN "ENTRY" INTO THE UNITED STATES WITHIN
THE MEANING OF SEC. 19(A) OF THE IMMIGRATION ACT OF 1917, SINCE HE DID
NOT COME FROM SOME "FOREIGN PORT OR PLACE."  PP. 640-643. 

BARBER, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, V.
GONZALES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

RESPONDENT WAS BORN IN THE PHILIPPINE ISLANDS IN 1913 AND CAME
THEREFROM TO THE CONTINENTAL UNITED STATES IN 1930.  HE HAS LIVED HERE
EVER SINCE.  IN 1941, HE WAS CONVICTED IN THE STATE OF CALIFORNIA OF
ASSAULT WITH A DEADLY WEAPON AND WAS SENTENCED TO IMPRISONMENT FOR ONE
YEAR IN THE ALAMEDA COUNTY JAIL.  IN 1950, HE WAS CONVICTED IN THE
STATE OF WASHINGTON OF SECOND DEGREE BURGLARY AND WAS SENTENCED UNDER
THE INDETERMINATE SENTENCE LAW OF THAT STATE TO A MINIMUM TERM OF TWO
YEARS IN THE STATE PENITENTIARY.  IN 1951, AFTER AN ADMINISTRATIVE
HEARING, HE WAS ORDERED DEPORTED TO THE PHILIPPINE ISLANDS UNDER SEC.
19(A) OF THE IMMIGRATION ACT OF 1917 AS AN ALIEN WHO "AFTER ENTRY" HAD
BEEN SENTENCED MORE THAN ONCE TO IMPRISONMENT FOR TERMS OF ONE YEAR OR
MORE FOR CRIMES INVOLVING MORAL TURPITUDE.  39 STAT. 889, AS AMENDED,
FORMERLY 8 U.S.C. SEC. 155(A). 

AFTER RESPONDENT WAS TAKEN INTO CUSTODY, HE FILED A PETITION FOR A
WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA.  THE PETITION ATTACKED THE VALIDITY OF
THE DEPORTATION ORDER ON THE GROUND, AMONG OTHERS, THAT HE WAS NOT
SUBJECT TO DEPORTATION UNDER SEC. 19(A) SINCE HE HAD NOT MADE AN
"ENTRY" WITHIN THE MEANING OF THAT SECTION.  THE DISTRICT COURT
DISMISSED THE PETITION.  ON APPEAL, THE COURT OF APPEALS FOR THE NINTH
CIRCUIT, WITH ONE JUDGE DISSENTING, REVERSED THE DISTRICT COURT'S
JUDGMENT AND REMANDED THE CASE WITH DIRECTIONS TO ORDER RESPONDENT'S
RELEASE FROM CUSTODY.  207 F.2D 398.  WE GRANTED CERTIORARI.  346 U.S.
914. 

THE SOLE QUESTION PRESENTED IS WHETHER RESPONDENT - WHO WAS BORN A
NATIONAL OF THE UNITED STATES IN THE PHILIPPINE ISLANDS, WHO CAME TO
THE CONTINENTAL UNITED STATES AS A NATIONAL PRIOR TO THE PHILIPPINE
INDEPENDENCE ACT OF 1934, AND WHO WAS SENTENCED TO IMPRISONMENT IN 1941
AND 1950 FOR CRIMES INVOLVING MORAL TURPITUDE - MAY NOW BE DEPORTED
UNDER SEC. 19(A) OF THE IMMIGRATION ACT OF 1917. 

IT IS CONCEDED THAT RESPONDENT WAS BORN A NATIONAL OF THE UNITED
STATES; THAT AS SUCH HE OWED PERMANENT ALLEGIANCE TO THE UNITED STATES,
INCLUDING THE OBLIGATION OF MILITARY SERVICE; THAT HE RETAINED THIS
STATUS WHEN HE CAME TO THE CONTINENTAL UNITED STATES IN 1930 AND HENCE
WAS NOT THEN SUBJECT TO THE IMMIGRATION ACT OF 1917 OR ANY OTHER
FEDERAL STATUTE RELATING TO THE EXCLUSION OR DEPORTATION OF ALIENS. 
(FN1)  THE GOVERNMENT, HOWEVER, CONTENDS THAT RESPONDENT'S STATUS AS A
NATIONAL WAS CHANGED BY THE PHILIPPINE INDEPENDENCE ACT OF 1934, 48
STAT. 456, WHICH PROVIDED FOR THE EVENTUAL INDEPENDENCE OF THE
PHILIPPINES, SUBSEQUENTLY ACHIEVED IN 1946, 60 STAT. 1352.  SECTION
8(A)(1) OF THE 1934 ACT PROVIDES: 

"FOR THE PURPOSES OF THE IMMIGRATION ACT OF 1917,  ...  THIS SECTION,
AND ALL OTHER LAWS OF THE UNITED STATES RELATING TO THE IMMIGRATION,
EXCLUSION, OR EXPULSION OF ALIENS, CITIZENS OF THE PHILIPPINE ISLANDS
WHO ARE NOT CITIZENS OF THE UNITED STATES SHALL BE CONSIDERED AS IF
THEY WERE ALIENS.  FOR SUCH PURPOSES THE PHILIPPINE ISLANDS SHALL BE
CONSIDERED AS A SEPARATE COUNTRY AND SHALL HAVE FOR EACH FISCAL YEAR A
QUOTA OF FIFTY." 

THE GOVERNMENT URGES THAT THE REFERENCE IN SEC. 8(A)(1) TO "CITIZENS
OF THE PHILIPPINE ISLANDS" INCLUDES FILIPINOS THEN RESIDING IN THE
UNITED STATES; THAT BY VIRTUE OF THIS PROVISION THE RESPONDENT WAS
ASSIMILATED TO THE STATUS OF AN ALIEN FOR PURPOSES OF "IMMIGRATION,
EXCLUSION, OR EXPULSION"; AND THAT, HAVING BEEN TWICE CONVICTED
THEREAFTER OF CRIMES INVOLVING MORAL TURPITUDE, HE IS DEPORTABLE UNDER
SEC. 19(A) OF THE IMMIGRATION ACT OF 1917. 

THE GOVERNMENT'S ARGUMENT IS PREMISED ON THE ASSUMPTION THAT
RESPONDENT MADE AN "ENTRY" WITHIN THE MEANING OF SEC. 19(A).  IF HE DID
NOT MAKE SUCH AN "ENTRY," THEN HE IS NOT DEPORTABLE UNDER THAT SECTION,
EVEN ASSUMING THAT THE GOVERNMENT IS CORRECT IN ITS BROAD CONSTRUCTION
OF THE 1934 PHILIPPINE INDEPENDENCE ACT.  SECTION 19(A) PROVIDES: 

"  ...  EXCEPT AS HEREINAFTER PROVIDED, ANY ALIEN WHO IS HEREAFTER
SENTENCED TO IMPRISONMENT FOR A TERM OF ONE YEAR OR MORE BECAUSE OF
CONVICTION IN THIS COUNTRY OF A CRIME INVOLVING MORAL TURPITUDE,
COMMITTED WITHIN FIVE YEARS AFTER THE ENTRY OF THE ALIEN TO THE UNITED
STATES, OR WHO IS HEREAFTER SENTENCED MORE THAN ONCE TO SUCH A TERM OF
IMPRISONMENT BECAUSE OF CONVICTION IN THIS COUNTRY OF ANY CRIME
INVOLVING MORAL TURPITUDE, COMMMITTED AT ANY TIME AFTER ENTRY  ...
SHALL, UPON THE WARRANT OF THE ATTORNEY GENERAL, BE TAKEN INTO CUSTODY
AND DEPORTED  ...  ." 

THE COURT OF APPEALS SUSTAINED RESPONDENT'S CONTENTION THAT HE HAD
NEVER MADE THE REQUISITE "ENTRY."  WITH THIS CONCLUSION, WE AGREE. 

THE GOVERNMENT WOULD HAVE US INTERPRET "ENTRY" IN SEC. 19(A) IN ITS
"ORDINARY, EVERYDAY SENSE" OF A "COMING INTO THE UNITED STATES."  UNDER
THIS VIEW, RESPONDENT'S "COMING INTO THE UNITED STATES" FROM THE
PHILIPPINE ISLANDS IN 1930 WOULD SATISFY THE "ENTRY" REQUIREMENT. 
WHILE IT IS TRUE THAT STATUTORY LANGUAGE SHOULD BE INTERPRETED WHENEVER
POSSIBLE ACCORDING TO COMMON USAGE, SOME TERMS ACQUIRE A SPECIAL
TECHNICAL MEANING BY A PROCESS OF JUDICIAL CONSTRUCTION.  SO IT IS WITH
THE WORD "ENTRY" IN SEC. 19(A).  E.G., DELGADILLO V. CARMICHAEL, 332
U.S. 388; UNITED STATES EX REL. CLAUSSEN V. DAY, 279 U.S. 398; DI
PASQUALE V. KARNUTH, 158 F.2D 878; DEL GUERCIO V. GABOT, 161 F.2D 559. 
CF. UNITED STATES EX REL. VOLPE V. SMITH, 289 U.S. 422, 425.  (FN2)  IN
UNITED STATES EX REL. CLAUSSEN V. DAY, SUPRA, AT 401, THIS COURT STATED
THE APPLICABLE RULE: 

"THE WORD 'ENTRY' IN SEC. 19(A) BY ITS OWN FORCE IMPLIES A COMING
FROM OUTSIDE.  THE CONTEXT SHOWS THAT IN ORDER THAT THERE BE AN ENTRY
WITHIN THE MEANING OF THE ACT THERE MUST BE AN ARRIVAL FROM SOME
FOREIGN PORT OR PLACE.  THERE IS NO SUCH ENTRY WHERE ONE GOES TO SEA ON
BOARD AN AMERICAN VESSEL FROM A PORT OF THE UNITED STATES AND RETURNS
TO THE SAME OR ANOTHER PORT OF THIS COUNTRY WITHOUT HAVING BEEN IN ANY
FOREIGN PORT OR PLACE." 

SEE ALSO UNITED STATES EX REL. STAPF V. CORSI, 287 U.S. 129, 132;
CARMICHAEL V. DELANEY, 170 F.2D 239, 242-243.  THIS CONCEPT OF "ENTRY"
WAS CODIFIED BY CONGRESS IN THE IMMIGRATION AND NATIONALITY ACT OF
1952.  (FN3) 

AT THE TIME RESPONDENT CAME TO THE CONTINENTAL UNITED STATES, HE WAS
NOT ARRIVING "FROM SOME FOREIGN PORT OR PLACE."  ON THE CONTRARY, HE
WAS A UNITED STATES NATIONAL MOVING FROM ONE OF OUR INSULAR POSSESSIONS
TO THE MAINLAND.  IT WAS NOT UNTIL THE 1934 PHILIPPINE INDEPENDENCE ACT
THAT THE PHILIPPINES COULD BE REGARDED AS "FOREIGN" FOR IMMIGRATION
PURPOSES.  HAVING MADE NO "ENTRY," RESPONDENT IS NOT DEPORTABLE UNDER
SEC. 19(A) AS AN ALIEN WHO "AFTER ENTRY" COMMITTED CRIMES INVOLVING
MORAL TURPITUDE.  THE GOVERNMENT WARNS THAT THIS CONCLUSION IS
INCONSISTENT WITH A BROAD CONGRESSIONAL PURPOSE TO TERMINATE THE UNITED
STATES RESIDENCE OF ALIEN CRIMINALS.  BUT WE BELIEVE A DIFFERENT
CONCLUSION WOULD NOT BE PERMISSIBLE IN VIEW OF THE WELL-SETTLED MEANING
OF "ENTRY" IN SEC. 19(A).  ALTHOUGH NOT PENAL IN CHARACTER, DEPORTATION
STATUTES AS A PRACTICAL MATTER MAY INFLICT "THE EQUIVALENT OF
BANISHMENT OR EXILE," FONG HAW TAN V. PHELAN, 333 U.S. 6, 10, AND
SHOULD BE STRICTLY CONSTRUED.  SEE DELGADILLO V. CARMICHAEL, 332 U.S.
388, 391.  IN THE ABSENCE OF EXPLICIT LANGUAGE SHOWING A CONTRARY
CONGRESSIONAL INTENT, WE MUST GIVE TECHNICAL WORDS IN DEPORTATION
STATUTES THEIR USUAL TECHNICAL MEANING.  (FN4) 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  FROM THE SPANISH CESSION IN 1898 UNTIL FINAL INDEPENDENCE IN
1946, THE PHILIPPINE ISLANDS WERE AMERICAN TERRITORY SUBJECT TO THE
JURISDICTION OF THE UNITED STATES.  SEE HOOVEN & ALLISON CO. V. EVATT,
324 U.S. 652, 674-676.  PERSONS BORN IN THE PHILIPPINES DURING THIS
PERIOD WERE AMERICAN NATIONALS ENTITLED TO THE PROTECTION OF THE UNITED
STATES AND CONVERSELY OWING PERMANENT ALLEGIANCE TO THE UNITED STATES. 
THEY COULD NOT BE EXCLUDED FROM THIS COUNTRY UNDER A GENERAL STATUTE
RELATING TO THE EXCLUSION OF "ALIENS."  SEE GONZALES V. WILLIAMS, 192
U.S. 1, 12-13; TOYOTA V. UNITED STATES, 268 U.S. 402, 411.  BUT, UNTIL
1946, NEITHER COULD THEY BECOME UNITED STATES CITIZENS.  SEE TOYOTA V.
UNITED STATES, SUPRA; 60 STAT. 416. 

FN2  IN THE VOLPE CASE, THE COURT STATED: 

"WE ACCEPT THE VIEW THAT THE WORD 'ENTRY'  ...  IN SEC. 19(A)  ...
INCLUDES ANY COMING OF AN ALIEN FROM A FOREIGN COUNTRY INTO THE UNITED
STATES WHETHER SUCH COMING BE THE FIRST OR ANY SUBSEQUENT ONE.  AND
THIS REQUIRES AFFIRMANCE OF THE CHALLENGED JUDGMENT  ...  .  THAT THE
SECOND COMING OF AN ALIEN FROM A FOREIGN COUNTRY INTO THE UNITED STATES
IS AN ENTRY WITHIN THE USUAL ACCEPTATION OF THAT WORD IS CLEAR ENOUGH
FROM LEWIS V. FRICK, 233 U.S. 291; CLAUSSEN V. DAY, 279 U.S. 398.  AN
EXAMINATION OF THE IMMIGRATION ACT OF 1917, WE THINK, REVEALS NOTHING
SUFFICIENT TO INDICATE THAT CONGRESS DID NOT INTEND THE WORD 'ENTRY' IN
SEC. 19 SHOULD HAVE ITS ORDINARY MEANING." 

THE CONTEXT OF THE LATTER SENTENCE MAKES IT CLEAR THAT THE COURT
REGARDED THE WORD'S "ORDINARY MEANING" AS BEING "ANY COMING OF AN ALIEN
FROM A FOREIGN COUNTRY."  IN THE DELGADILLO CASE, SUPRA, THE COURT
NARROWED THIS DEFINITION EVEN FURTHER BY HOLDING THAT A RESIDENT ALIEN
DOES NOT MAKE AN "ENTRY" FROM A FOREIGN COUNTRY IF HIS ARRIVAL IN THE
FOREIGN COUNTRY WAS UNINTENTIONAL. 

FN3  SECTION 101(A)(13) OF THE 1952 ACT, 66 STAT. 167, 8 U.S.C. SEC.
1101(A)(13), PROVIDES IN PERTINENT PART: 

"THE TERM 'ENTRY' MEANS ANY COMING OF AN ALIEN INTO THE UNITED
STATES, FROM A FOREIGN PORT OR PLACE OR FROM AN OUTLYING POSSESSION
...  ." 

"OUTLYING POSSESSIONS" AS AMERICAN SAMOA AND SWAINS ISLAND.  BY A
SPECIAL PROVISION IN THE 1952 ACT, THE EXCLUSION PROCESS IS MADE
APPLICABLE TO ANY ALIEN COMING TO THE CONTINENTAL UNITED STATES FROM
HAWAII, ALASKA, GUAM, PUERTO RICO, OR THE VIRGIN ISLANDS.  66 STAT.
188, 8 U.S.C. SEC. 1182(D)(7). 

FN4  THE RESPONDENT ALSO ATTACKS THE VALIDITY OF THE DEPORTATION
ORDER ON THE GROUNDS: (1) THAT HE MADE NO "ENTRY" BECAUSE HE WAS NOT AN
ALIEN WHEN HE CAME TO THIS COUNTRY; (2) THAT SEC. 8(A)(1) OF THE 1934
PHILIPPINE INDEPENDENCE ACT DID NOT APPLY TO FILIPINOS ALREADY RESIDING
HERE AND THAT HENCE HE WAS NOT AN ALIEN IN 1941 WHEN HE WAS SENTENCED
FOR ONE OF THE TWO CRIMES INVOLVED IN THIS PROCEEDING; (3) THAT HE IS
NOT AN ALIEN TODAY BECAUSE CONGRESS LACKED THE POWER TO DEPRIVE HIM OF
HIS STATUS AS A NATIONAL.  OUR DISPOSITION OF THE CASE MAKES IT
UNNECESSARY TO CONSIDER THESE CONTENTIONS. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE BURTON
JOIN, DISSENTING. 

BUT FOR THIS COURT'S HOLDING THAT SEC. 19(A) OF THE IMMIGRATION ACT
OF 1917 MUST BE CONSTRUED STRICTLY AND THE WORD "ENTRY" GIVEN A SPECIAL
MEANING, I WOULD BE CONTENT WITH THE EXCELLENT DISSENT OF JUDGE BONE IN
THE COURT BELOW.  207 F.2D 398, 402. 

THE EFFECT OF THE COURT'S OPINION IS TO CONSTRUE THE ACT STRICTLY IN
FAVOR OF THE CONVICTED CRIMINAL SOUGHT TO BE DEPORTED FOR HIS CRIMINAL
ACTS, RATHER THAN IN FAVOR OF THE UNITED STATES IN PROTECTION OF ITS
CITIZENS.  I KNOW OF NO GOOD REASON WHY WE SHOULD BY STRAINED
CONSTRUCTION OF AN ACT COMPEL THE UNITED STATES TO CLING ONTO ALIEN
CRIMINALS.  IT IS NOT THE PUBLIC POLICY OF THIS COUNTRY TO CONSTRUE ITS
STATUTES STRICTLY IN FAVOR OF ALIEN CRIMINALS WHOSE CONVICTIONS HAVE
ALREADY BEEN ESTABLISHED OF RECORD.  WHY SHOULD WE GIVE A STRAINED
CONSTRUCTION TO THE WORD "ENTRY" IN THE INSTANT CASE?  THE LEAST WE
SHOULD DO IS TO GIVE THE WORD "ENTRY" ITS ORDINARY MEANING. 

IN CONSTRUING THIS VERY STATUTE, THIS COURT SAID IN UNITED STATES EX
REL. VOLPE V. SMITH, 289 U.S. 422, 425:

"AN EXAMINATION OF THE IMMIGRATION ACT OF 1917, WE THINK, REVEALS
NOTHING SUFFICIENT TO INDICATE THAT CONGRESS DID NOT INTEND THE WORD
'ENTRY' IN SEC. 19 SHOULD HAVE ITS ORDINARY MEANING." 

CF. EICHENLAUB V. SHAUGHNESSY, 338 U.S. 521. 

THE CASE OF DELGADILLO V. CARMICHAEL, 332 U.S. 388, LENDS NO
AUTHORITY TO THIS CASE.  IN THAT CASE, THE ALIEN HAD NEVER VOLUNTARILY
LEFT THE UNITED STATES FOR FOREIGN LAND.  HIS SHIP WAS TORPEDOED.  HE
WAS BLOWN INTO THE SEA.  HE WAS RESCUED AND TAKEN TO CUBA, FROM WHENCE
HE CAME BACK TO THE UNITED STATES BY WAY OF MIAMI, FLORIDA.  THIS COURT
SAID: 

"IN THIS CASE PETITIONER, OF COURSE, CHOSE TO RETURN TO THIS COUNTRY,
KNOWING HE WAS IN A FOREIGN PLACE.  BUT THE EXIGENCIES OF WAR, NOT HIS
VOLUNTARY ACT, PUT HIM ON FOREIGN SOIL.  IT WOULD INDEED BE HARSH TO
READ THE STATUTE SO AS TO ADD THE PERIL OF DEPORTATION TO SUCH PERILS
OF THE SEA.  WE MIGHT AS WELL HOLD THAT IF HE HAD BEEN KIDNAPPED AND
TAKEN TO CUBA, HE MADE A STATUTORY 'ENTRY' ON HIS VOLUNTARY RETURN. 
RESPECT FOR LAW DOES NOT THRIVE ON CAPTIOUS INTERPRETATIONS."  P. 391. 

THERE IS NOTHING CAPTIOUS OR FORTUITOUS ABOUT THIS PETITIONER'S
"ENTRY" INTO THE UNITED STATES.  HE CAME TO THIS COUNTRY FROM OUTSIDE,
AS ALL ALIENS DO.  NO CASE BY THIS COURT SUPPORTS THE SPECIAL
CONSTRUCTION GIVEN BY THE COURT TO THE WORD "ENTRY."    BECAUSE OF THE
COURT'S STRICT CONSTRUCTION OF THIS STATUTE, WHICH HAS THE EFFECT OF
PUTTING A LIBERAL CONSTRUCTION ON THE STATUTE IN FAVOR OF THE ALIEN
CRIMINAL, WHICH I BELIEVE TO BE CONTRARY TO THE PUBLIC POLICY OF THIS
COUNTRY, I DISSENT. 
..END :























SECRETARY OF AGRICULTURE V. UNITED STATES 347 U.S. 645 


NO. 480.  ARGUED APRIL 27-28, 1954 - DECIDED JUNE 7, 1954 - 114 F. SUPP.
420, JUDGMENT VACATED AND CASE REMANDED. 


THE INTERSTATE COMMERCE COMMISSION APPROVED SPECIAL CHARGES, IN
ADDITION TO THE EXISTING LINE-HAUL RATES, FOR UNLOADING SERVICES
PERFORMED BY RAILROADS TRANSPORTING FRUITS AND VEGETABLES INTO NEW YORK
AND PHILADELPHIA.  NORMALLY UNLOADING IS DONE BY THE CONSIGNEES, BUT AT
THESE POINTS, DUE TO SPECIAL CONDITIONS, THE UNLOADING IS PERFORMED BY
THE CARRIERS AT CONSIDERABLE EXPENSE.  THE PRODUCE IS NOT ACCESSIBLE TO
THE CONSIGNEES UNTIL AFTER IT HAS BEEN UNLOADED.  VARIOUS PROTESTANTS
CONTENDED THAT SINCE CIRCUMSTANCES HERE MAKE THE UNLOADING A PART OF
THE TRANSPORTATION SERVICE, THE COMMISSION COULD NOT ALLOW THESE
SPECIAL CHARGES WITHOUT FIRST EXAMINING THE SUFFICIENCY OF THE LINE
HAUL RATES TO COVER THESE UNLOADING COSTS.  ON APPEAL FROM A JUDGMENT
OF THE DISTRICT COURT UPHOLDING THE ORDER OF THE COMMISSION, HELD:  THE
JUDGMENT IS VACATED AND THE CASES ARE REMANDED TO THE COMMISSION
BECAUSE OF THE INADEQUACY OF ITS FINDINGS TO EXPLAIN THE LEGAL BASIS OF
ITS DECISION.   PP.  646-655. 

(A) IN DEALING WITH TECHNICAL AND COMPLEX MATTERS, THE COMMISSION
MUST NECESSARILY HAVE WIDE DISCRETION IN FORMULATING APPROPRIATE
SOLUTIONS.  BUT HERE THE COMMISSION HAS NOT ADEQUATELY EXPLAINED ITS
DEPARTURE FROM PRIOR NORMS.  A COURT MUST KNOW CLEARLY WHAT A
COMMISSION DECISION, WHEN CHALLENGED, MEANS BEFORE IT CAN SAY WHETHER
THAT DECISION CAN BE SUSTAINED.  PP. 650-654. 

(B)  IN RESPECT OF APPELLANTS' CONTENTION THAT TO PERMIT SEPARATE
CHARGES TO BE IMPOSED FOR THE UNLOADING OF FRUITS AND VEGETABLES, WHILE
NOT IMPOSING SIMILAR CHARGES ON OTHER COMMODITIES UNLOADED AT THESE
POINTS, VIOLATES SECS. 2 AND 3 OF THE INTERSTATE COMMERCE ACT, THE
COMMISSION ON REMAND SHOULD ALSO MAKE MORE EXPLICIT FINDINGS AS TO THE
DIFFERENCES AND SIMILARITIES IN THE TREATMENT ACCORDED OTHER
COMMODITIES UNLOADED AT THESE SAME POINTS.  PP. 654-655. 

(C)  THE COMMISSION SHOULD ALSO BE MORE EXPLICIT IN STATING THE
REASONS THAT LED IT TO ASSIMILATE, SO FAR AS THESE UNLOADING CHARGES
ARE CONCERNED, THE SITUATION AT PHILADELPHIA TO THAT AT NEW YORK.  P.
655. 

SECRETARY OF AGRICULTURE V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA.* 

*TOGETHER WITH NO. 481, FLORIDA CITRUS COMMISSION ET AL. V. UNITED
STATES ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

FIVE RAILROADS WHICH TRANSPORT FRUITS AND VEGETABLES INTO NEW YORK
AND PHILADELPHIA FILED WITH THE INTERSTATE COMMERCE COMMISSION
SCHEDULES OF CHARGES FOR UNLOADING SERVICES PERFORMED BY THEM AT THESE
POINTS.  VARIOUS SHIPPERS AND SHIPPER ORGANIZATIONS, STATE COMMISSIONS,
AND OTHER INTERESTED PARTIES, PROTESTED THE PROPOSED CHARGES.  THE
SECRETARY OF AGRICULTURE, ACTING ON BEHALF OF THE AFFECTED AGRICULTURAL
INTERESTS, INTERVENED.  (FN1)  THE COMMISSION IN DUE COURSE APPROVED
THE CHARGES, 272 I.C.C. 648.  ON FURTHER CONSIDERATION, THE APPROVED
CHARGES WERE CUT ROUGHLY IN HALF, 286 I.C.C. 119.  COMPLAINTS AGAINST
EVEN THESE REDUCED CHARGES WERE THEN FILED WITH THE COMMISSION, BUT
THESE WERE DISMISSED BY IT ON THE BASIS OF ITS PRIOR DECISION, AND THIS
LITIGATION TO ENJOIN AND SET ASIDE THE COMMISSION'S ORDER FOLLOWED.  28
U.S.C. SECS. 1336, 2325.  NUMEROUS PARTIES AGAIN INTERVENED - THE
SHIPPER AND CONSUMER INTERESTS ON THE SIDE OF THE PROTESTANTS, AND THE
CARRIERS INVOLVED ON THE SIDE OF THE COMMISSION.  THE THREE-JUDGE
DISTRICT COURT, WITH JUDGE DE VANE DISSENTING, UPHELD THE COMMISSION,
114 F. SUPP. 420.  DIRECT APPEALS UNDER 28 U.S.C. SEC. 1253 BROUGHT THE
CASES HERE.  347 U.S. 902. 

THE GENERAL RULE IS THAT IT IS THE RESPONSIBILITY OF THE CARRIER, AS
PART OF THE TRANSPORTATION SERVICE COVERED BY THE LINE-HAUL RATE, TO
"DELIVER" THE GOODS BY PLACING THEM IN SUCH A POSITION AS TO MAKE THEM
ACCESSIBLE TO THE CONSIGNEE.  NORMALLY UNLOADING IS NOT A PART OF THE
DELIVERY AND IS PERFORMED BY THE CONSIGNEE.  IN ACCORDANCE WITH THESE
PRINCIPLES, THE RAILROAD SPOTS THE CAR ON THE TEAM TRACK IN ITS YARDS
IN THE DESTINATION CITY, AND THE CONSIGNEE IS GIVEN APPROPRIATE FREE
TIME IN WHICH TO UNLOAD.  IN THE CASE OF PRIVATE SIDINGS, THE
RAILROAD'S JOB ENDS WHEN IT HAS PLACED THE CAR ON THE CONSIGNEE'S
SIDING. 

THESE ARE NOT INFLEXIBLE RULES.  THE LAW RECOGNIZES AND REFLECTS THE
PRACTICALITIES OF TRANSPORTATION BY RAIL AND THE DIVERSITIES TO WHICH
THEY GIVE RISE.  PRIOR TO 1925, THE RAILROADS, IN ORDER TO MEET THE
DEMANDS OF COMPETITIVE TRANSPORTATION INDUSTRIES, PERFORMED THE
UNLOADING WITHOUT ADDITIONAL CHARGE AT SPECIFIED POINTS.  IN THE CASE
OF LOADING AND UNLOADING CARLOAD FREIGHT, 101 I.C.C. 394, THE
COMMISSION APPROVED TARIFFS BY THE ROALROADS ABOLISHING FREE UNLOADING
AT MOST OF THESE POINTS, AND AUTHORIZED THE CARRIERS TO MAKE AN
ADDITIONAL CHARGE THEREAFTER FOR PERFORMING THE UNLOADING AT THE
CONSIGNEE'S REQUEST.  BY THE TIME THE PRESENT PROCEEDING WAS
INSTITUTED, PHILADELPHIA AND NEW YORK WERE THE ONLY POINTS WHERE THE
CARRIERS WERE STILL PERFORMING UNLOADING WITHOUT ANY CHARGE IN ADDITION
TO THE LINE-HAUL RATE. 

THE EXCEPTION OF THESE TWO CITIES WAS NO ABERRATION.  IT IS THE
RESULT OF SPECIAL CONDITIONS WHICH EXIST IN NEW YORK AND PHILADELPHIA. 
THE SIGNIFICANCE OF THESE SPECIAL CONDITIONS IS AT THE HEART OF THIS
CONTROVERSY. 

NO RAILROAD CARRYING FRUITS OR VEGETABLES INTO NEW YORK, EXCEPT THE
NEW YORK CENTRAL, HAS A DIRECT LINE INTO MANHATTAN.  THE ROADS
TRANSPORTING THE BULK OF THE PRODUCE INTO NEW YORK, THE PENNSYLVANIA
AND ERIE RAILROADS, TERMINATE THEIR LINES ON THE JERSEY SIDE OF THE
HUDSON RIVER.  THERE, THE CARS ARE PUT ON BARGES AND FLOATED ACROSS THE
RIVER, EITHER TO BE SWITCHED ONTO THE CARRIERS' MANHATTAN TEAM TRACKS
OR TO BE UNLOADED DIRECTLY AT THE DUANE STREET PIERS.  (FN2)  THESE
PIER TERMINALS ARE LEASED BY THE CITY OF NEW YORK TO THE VARIOUS
CARRIERS AND ARE STRATEGICALLY LOCATED ADJACENT TO WASHINGTON MARKET,
NEW YORK'S LARGEST FRUIT AND VEGETABLE MARKET.  AT THE TEAM TRACKS,
ACCORDING TO THE USUAL PRACTICE, THE CONSIGNEES DO THEIR OWN
UNLOADING.  HOWEVER, BECAUSE OF THE INADEQUACY OF THESE FACILITIES AND
BECAUSE OF THE MORE ADVANTAGEOUS LOCATION OF THE PIER TERMINALS,
APPROXIMATELY 75% OF THE FRUITS AND VEGETABLES COMING INTO NEW YORK ARE
DIRECTED TO THE PIER STATIONS. 

THE PROCEDURE AT THE PIER STATIONS IS AS FOLLOWS.  WHEN THE FLOATS
ARE DOCKED AT THE APPROPRIATE PIER - THIS USUALLY HAPPENS AT NIGHT -
WORK CREWS OF THE RAILROAD BEGIN TO UNLOAD THE CARS AND PLACE THE
CONTENTS ON THE PIER FLOOR.  (FN3)  THE CONSIGNEES ARE NOTIFIED IN
ADVANCE OF THE ARRIVAL OF THEIR GOODS, AND AT SPECIFIED TIMES THEIR
TRUCKS CAN COME ONTO THE PIER FLOOR TO PICK UP THEIR MERCHANDISE. 
SALES AND AUCTION FACILITIES ARE ALSO PROVIDED BY THE RAILROADS, AND
SOME OF THE PRODUCE IS IMMEDIATELY DISPOSED OF IN THIS MANNER.  IN NO
EVENT ARE THE CONSIGNEES ALLOWED TO UNLOAD THE CARS THEMSELVES; INDEED
THE COMMISSION HAS FOUND THAT THIS WOULD BE "IMPRACTICABLE."  (FN4) 

AT PHILADELPHIA, THE SITUATION IS SOMEWHAT DIFFERENT.  HERE THERE IS
NO PROBLEM OF WATER TRANSPORTATION, AND THE TEAM TRACK FACILITIES WHERE
CONSIGNEES CAN DO THEIR OWN UNLOADING ARE NOT SHOWN TO BE INADEQUATE. 
HOWEVER, IN 1927, THE PENNSYLVANIA AND THE BALTIMORE & OHIO BUILT
COMPETITIVE PRODUCE TERMINALS, (FN5) AND, BECAUSE OF THE SPECIAL
FACILITIES AVAILABLE THERE, 95% OF THE FRUITS AND VEGETABLES CONSIGNED
TO PHILADELPHIA ARE NOW RECEIVED AT THESE STATIONS.  EACH OF THESE
TERMINALS HAS TWO PLATFORMS, ONE FOR PRODUCE INTENDED FOR PRIVATE SALE,
ONE FOR PRODUCE INTENDED FOR AUCTION SALE.  THE UNLOADING OPERATIONS
HERE ARE CONSIDERABLY SIMPLER AND CHEAPER THAN AT THE NEW YORK PIERS;
BUT, AS IN NEW YORK, ALL THE UNLOADING HERE IS PERFORMED BY THE
CARRIERS.  (FN6) 

IT WAS IN THE LIGHT OF THIS BACKGROUND THAT THE CARRIERS, FACED BY
THE SHARPLY RISING COSTS OF THE UNLOADING OPERATION, SOUGHT THE
COMMISSION'S APPROVAL FOR SPECIAL UNLOADING CHARGES AT THESE TWO
CITIES.  SUCH CHARGES, THE CARRIERS URGED, WOULD SERVE TO BRING NEW
YORK AND PHILADELPHIA INTO LINE WITH THE GENERALLY PREVAILING PRACTICE
THAT CONSIGNEES MUST EITHER DO THEIR OWN UNLOADING OR, IF THEY WANT
THE CARRIER TO DO IT FOR THEM, THEY MUST BE PREPARED TO PAY FOR IT. 

THE PROTESTANTS, APPELLANTS HERE, DO NOT CHALLENGE THESE GENERAL
PRINCIPLES.  IT IS THEIR CONTENTION RATHER THAT AT THESE PARTICULAR
POINTS THE UNLOADING IS AN ESSENTIAL PART OF DELIVERY IN THAT WITHOUT
IT THE GOODS ARE NOT ACCESSIBLE TO THE CONSIGNEES; THAT THEREFORE THE
LINE-HAUL RATE ENCOMPASSES THE UNLOADING; AND, FINALLY, THAT A SERVICE
COVERED BY THE LINE-HAUL RATE CANNOT BE SEPARATELY COMPENSATED UNLESS
THE CARRIERS SHOW THAT THE LINE-HAUL RATE IS INADEQUATE TO COVER IT. 

THESE ARE CLAIMS THAT MUST BE MET, AND THE REAL QUESTION BEFORE US IS
WHETHER THE COMMISSION HAS MET THEM WITH AN ADEQUACY THAT SATISFIES THE
REQUIREMENTS OF JUDICIAL REVIEW, LIMITED THOUGH ITS SCOPE MAY BE.  WITH
RESPECT TO NEW YORK, THE COMMISSION'S FINDINGS CLEARLY SHOW THAT SINCE
THE CONSIGNEES WERE NOT PERMITTED TO DO THEIR OWN UNLOADING, THE GOODS
WERE NOT ACCESSIBLE TO THEM UNTIL UNLOADED BY THE CARRIERS.  (FN7)  CF.
UNITED STATES V. UNITED STATES SMELTING CO., 339 U.S. 186.  MOREOVER,
PRIOR CASES OF THE COMMISSION DEALING WITH THE NEW YORK TERMINAL HAVE
INDICATED THAT THE UNLOADING COST THERE IS AN INTEGRAL PART OF THE
THROUGH RATE.  SEE FRUITS AND VEGETABLES TO DUANE ST., N.Y., 66 I.C.C.
135, 139; ERIE R. CO. V. ALABAMA & V.R. CO., 98 I.C.C. 268, 272, 280
281.  YET THE COURT BELOW ATTRIBUTED TO THE COMMISSION FINDINGS THAT
"THE LINE HAUL SERVICE TERMINATED WEHN THE CARS REACHED THE PIER
STATION," AND THAT "UNLOADING IS AN ADDITIONAL SERVICE, WHOLLY DISTINCT
FROM DELIVERY."  114 F. SUPP., AT 424.  BUT THE FINDINGS OF THE
COMMISSION, TAKEN AS A WHOLE, DO NOT SUPPORT THESE STATEMENTS. 

PRIOR CASES WHERE THE COMMISSION HAD SUSTAINED THE IMPOSITION OF
UNLOADING CHARGES DO NOT SERVE AS USEFUL PRECEDENTS HERE.  E.G.,
LOADING AND UNLOADING CARLOAD FREIGHT, SUPRA.  IN THOSE CASES, THERE
WAS AN ABSENCE OF CIRCUMSTANCES TO JUSTIFY DEVIATION FROM THE NORMAL
RULE THAT UNLOADING IS NOT PART OF DELIVERY, AND THEREFORE THE
COMMISSION WAS WARRANTED IN CONCLUDING THAT THE CARRIER MIGHT IMPOSE A
SEPARATE CHARGE FOR THE UNLOADING WHERE THE CONSIGNEE REQUESTED IT.
HERE, HOWEVER, BECAUSE OF THE PECULIAR CONDITIONS PREVAILING AT THE NEW
YORK PIERS, THE UNLOADING IS AN ESSENTIAL PART OF THE DELIVERY AND
HENCE IS NECESSARILY ENCOMPASSED IN THE LINE HAUL.  INSTEAD OF TREATING
THIS SITUATION ON ITS OWN MERITS, THE COMMISSION APPEARS TO HAVE RELIED
TOO MUCH ON PRIOR DECISIONS DEALING WITH THE PROBLEM OF UNLOADING
CHARGES IN DIFFERENT CONTEXTS. 

WHILE THE NORMAL COURSE FOR THE COMMISSION IN DEALING WITH A
SITUATION LIKE THE PRESENT WOULD HAVE BEEN TO RE-EXAMINE THE
SUFFICIENCY OF THE LINE-HAUL RATE, OR TO INITIATE A NEW DIVISION OF THE
LINE-HAUL RATE, (FN8) THE COMMISSION WAS NOT PRECLUDED FROM FOLLOWING A
PROCEDURE FAIRLY ADAPTED TO THE UNIQUE CIRCUMSTANCES OF THIS CASE.  THE
COMMISSION MAY NOT UNNATURALLY HAVE FELT THAT IT WOULD BE UNDESIRABLE
TO REVISE THE LINE-HAUL RATE WITH ITS INEVITABLE EFFECT ON THE ENTIRE
TARIFF STRUCTURE, IN ORDER TO DEAL APPROPRIATELY WITH THE SPECIAL,
LOCALIZED SITUATION PRESENTED AT THE NEW YORK PIERS.  OR THE COMMISSION
MIGHT WELL HAVE THOUGHT THAT A REDIVISION OF THE LINE-HAUL RATE WOULD
NOT BE APPROPRIATE FOR THE SUBSTANTIAL ADDITIONAL COST HERE INVOLVED. 

IT IS NOT NECESSARY NOW TO CONSIDER THE COMMISSION'S POWER, UNDER
APPROPRIATE FINDINGS, TO APPROVE SUCH UNLOADING CHARGES WITHOUT
PURSUING ONE OF THESE COURSES.  IN DEALING WITH TECHNICAL AND COMPLEX
MATTERS LIKE THESE, THE COMMISSION MUST NECESSARILY HAVE WIDE
DISCRETION IN FORMULATING APPROPRIATE SOLUTIONS.  BUT WE DO SAY THAT
WHILE THE COMMISSION HAS ADUMBRATED THE REASONS THAT COMMENDED THESE
CHARGES TO ITS APPROVAL, (FN9) THE COMMISSION HAS NOT ADEQUATELY
EXPLAINED ITS DEPARTURE FROM PRIOR NORMS AND HAS NOT SUFFICIENTLY
SPELLED OUT THE LEGAL BASIS OF ITS DECISION.  WE DO NOT KNOW WHETHER
THE COMMISSION HAS DISREGARDED ITS OWN FINDINGS THAT THE UNLOADING HERE
IS A PREREQUISITE TO DELIVERY OF THE GOODS; OR WHETHER, IN ORDER TO
MEET AN UNUSUAL SITUATION, THE COMMISSION HAS MODIFIED THE NORMAL
DOCTRINE THAT DELIVERY IS THE RESPONSIBILITY OF THE CARRIER, SEE NEW
ENGLAND COAL & COKE CO. V. NORFOLK & W.R. CO., 33 I.C.C. 276; OR
WHETHER THE COMMISSION, FOR A REASON NOT MADE EXPLICIT, HAS HERE DEEMED
IRRELEVANT THE PREVAILING RULE OF ITS PRIOR CASES THAT A SERVICE
NECESSARILY ENCOMPASSED BY THE LINE-HAUL RATE CANNOT BE SEPARATELY
RESTATED WITHOUT EXAMINING THE SUFFICIENCY OF THE LINE-HAUL RATE TO
COVER IT.  SEE, E.G., TERMINAL CHARGES AT PACIFIC COAST PORTS, 255
I.C.C. 673; UNLOADING LUMBER TO NEW YORK HARBOR, 256 I.C.C. 463.  IN
SHORT, THE COMMISSION HAS NOT EXPLAINED ITS DECISION "WITH THE
SIMPLICITY AND CLEARNESS THROUGH WHICH A HALTING IMPRESSION RIPENS INTO
REASONABLE CERTITUDE.  IN THE END WE ARE LEFT TO SPELL OUT, TO ARGUE,
TO CHOOSE BETWEEN CONFLICTING INFERENCES.  SOMETHING MORE PRECISE IS
REQUISITE IN THE QUASI-JURISDICTIONAL FINDINGS OF AN ADMINISTRATIVE
AGENCY.  BEAUMONT, S.L.&W.R. CO. V. UNITED STATES, 282 U.S. 74, 86;
FLORIDA V. UNITED STATES, 282 U.S. 194, 215.  WE MUST KNOW 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. 

APPELLANTS ALSO CONTEND THAT TO PERMIT SEPARATE CHARGES TO BE IMPOSED
FOR THE UNLOADING OF FRUITS AND VEGETABLES, WHILE NOT IMPOSING SIMILAR
CHARGES ON OTHER COMMODITIES UNLOADED AT THESE POINTS, VIOLATES SECS. 2
AND 3 OF THE INTERSTATE COMMERCE ACT.  (FN10)  SINCE WE HAVE ALREADY
CONCLUDED THAT THE CASE SHOULD BE REMANDED TO THE COMMISSION, THE
COMMISSION ON REMAND SHOULD ALSO MAKE MORE EXPLICIT FINDINGS AS TO THE
DIFFERENCES AND SIMILARITIES IN THE TREATMENT ACCORDED OTHER
COMMODITIES UNLOADED AT THESE SAME POINTS.  IF SUCH COMMODITIES ARE
UNLOADED "UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES," THE ACT REQUIRES
THAT THE CHARGES IMPOSED BE THE SAME.  IF, ON THE OTHER HAND, THERE ARE
IMPORTANT DIFFERENCES IN TREATMENT JUSTIFYING THE IMPOSITION OF
DIFFERENT UNLOADING CHARGES OR OF NO UNLOADING CHARGES AT ALL, THE
COMMISSION OUGHT TO FIND NO DIFFICULTY IN DEFINING THE DIFFERENCES. 
(FN11) 

SIMILARLY, WE DEEM IT DESIRABLE THAT UPON RECONSIDERATION OF THIS
CONTROVERSY, THE COMMISSION SHOULD ALSO BE MORE EXPLICIT IN STATING THE
REASONS THAT LED IT TO ASSIMILATE, SO FAR AS THESE UNLOADING CHARGES
ARE CONCERNED, THE SITUATION AT PHILADELPHIA TO THAT AT NEW YORK. 

THE JUDGMENT IS VACATED, AND THE CASES ARE ORDERED TO BE REMANDED TO
THE COMMISSION FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  UNDER 7 U.S.C. SEC. 1291, THE SECRETARY OF AGRICULTURE IS
AUTHORIZED TO MAKE COMPLAINT TO THE COMMISSION AS WELL AS TO INTERVENE
BEFORE THE COMMISSION AND RESORT TO ORIGINAL AND APPELLATE JUDICIAL
REMEDIES IN CASES AFFECTING THE TRANSPORTATION OF FARM PRODUCTS. 

FN2  THE NEW YORK CENTRAL AND THE BALTIMORE & OHIO RAILROADS ALSO
PERFORM SUCH FLOATAGE. 

FN3  THE UNLOADING PRACTICES VARY SOMEWHAT FROM CARRIER TO CARRIER. 
FOR EXAMPLE, THE ERIE HAS A SPECIAL CONTRACTOR DO ITS UNLOADING; THE
PENNSYLVANIA USES AUTOMATIC EQUIPMENT INSTEAD OF MANUAL LABOR.    FN4
272 I.C.C., AT 655.  IN ITS LATER REPORT, THE COMMISSION ALSO MADE THE
SOMEWHAT INCONSISTENT FINDING THAT "AT THE ORIGINAL HEARING THE
RAILROADS OFFERED TO PERMIT CONSIGNEES TO UNLOAD THEIR FREIGHT FROM THE
CAR FLOAT."  286 I.C.C., AT 125.  BUT WHEN THE CALIFORNIA FRUIT GROWERS
EXCHANGE, AFTER THE COMMISSION'S INITIAL DECISION, REQUESTED THE
RAILROADS TO "PERMIT THE CONSIGNEES, AS A WHOLE, TO PERFORM THE
UNLOADING AT THE PIERS" THE RAILROADS REFUSED. 

FN5  THE B.&O. TERMINAL IS USED JOINTLY BY IT AND THE READING
RAILROAD.    FN6  AT PHILADELPHIA, TOO, THE CONSIGNEES REQUESTED THE
CARRIERS TO BE PERMITTED TO DO THEIR OWN UNLOADING, OR TO LET THE
AUCTION COMPANY WHICH WAS SELLING THE FRUIT ON THEIR ACCOUNT DO THE
UNLOADING.  THE PENNSYLVANIA REFUSED, ON THE GROUND THAT THE "TERMINAL
WAS A PUBLIC FACILITY AND THAT THE GRANTING OF SUCH PERMISSION MIGHT
GIVE RISE TO A DUAL METHOD OF UNLOADING, ONE TO BE CONDUCTED BY THE
FRUIT AND VEGETABLE TRADE, AND THE OTHER BY THE RAILROAD FOR THE
GENERAL PUBLIC."  286 I.C.C., AT 137.  IN THIS CONNECTION, IT SHOULD BE
NOTED THAT THE COMMISSION MADE NO FINDINGS THAT IT WOULD BE
"IMPRACTICABLE" FOR THE CONSIGNEES TO DO THE UNLOADING AT THE
PHILADELPHIA PRODUCE TERMINALS. 

FN7  272 I.C.C. 648, 654-655:  "DELIVERY TO THE CONSIGNEE IS NOT
EFFECTED UNTIL AFTER THE CARS ARE UNLOADED AND THE LADING PLACED AT A
CONVENIENT LOCATION ON THE PIER FLOOR."  286 I.C.C. 119, 125: "THE PIER
FLOOR IS THE FIRST PLACE WHERE, AFTER THE FREIGHT HAS BEEN UNLOADED,
DELIVERY CAN BE TAKEN."  286 I.C.C. 119, 127:  "AFTER THE VEGETABLES
ARE PLACED ON THE PIER PLATFORM THEY ARE ACCESSIBLE TO THE CONSIGNEE
...  ."  286 I.C.C. 119, 129: THE PROPOSED CHARGE, IN ADDITION TO THE
LINE-HAUL RATE, IS "FOR MAKING DELIVERY AT NEW YORK PIERS." 

THE RELATION BETWEEN THE UNLOADING CHARGES AND THE LINE HAUL WAS ALSO
ADVERTED TO IN THE COMMISSION'S EARLIER REPORT, 272 I.C.C., AT 662, BUT
NOT WITH SUFFICIENT CLARITY. 

FN8  UNDER 49 U.S.C. SECS. 15(6), THE COMMISSION MAY AUTHORIZE A NEW
DIVISION OF THE RATE AMONG THE PARTICIPATING CARRIERS IF IT FINDS THE
PRESENT DIVISION "UNJUST, UNREASONABLE, OR INEQUITABLE."  IN SUCH A
PROCEEDING SPECIAL TERMINAL COSTS CAN BE TAKEN INTO ACCOUNT PRIOR TO
ALLOCATING THE RATE AMONG THE LINE-HAUL CARRIERS.  SEE ERIE R. CO. V.
ALABAMA & V.R. CO., 98 I.C.C. 268, 280; ATLANTIC COAST LINE R. CO. V.
ARCADE & A.R. CORP., 194 I.C.C. 729, 745-747; OFFICIAL-SOUTHERN
DIVISIONS, 287 I.C.C. 497, 538-543; OFFICIAL-SOUTHWESTERN DIVISIONS,
287 I.C.C. 553, 584-593. 

FN9  AS THE COMMISSION STATED: 

"AN UNUSUAL SITUATION, ARISING PRIMARILY FROM THE TOPOGRAPHY OF THE
AREA, EXISTS ON LOWER MANHATTAN AS A RESULT OF WHICH THE PRESENT METHOD
OF HANDLING SHIPMENTS THROUGH THE PIER STATIONS IS OF BENEFIT TO BOTH
SHIPPERS (INCLUDING CONSIGNEES) AND CARRIERS.  IT IS ALSO HELPFUL IN
THE AVOIDANCE OF TRAFFIC CONGESTION.  THE ACQUISITION OF LAND IN THAT
AREA FOR ADDITIONAL TRACK FACILITIES WOULD BE IMPRACTICABLE IF NOT
IMPOSSIBLE  ...  .  PHYSICAL CONDITIONS IN AND AROUND NEW YORK WHICH
LIMIT AVAILABLE SPACE FOR THE ESTABLISHMENT AND OPERATION OF RAILROAD
TERMINAL FACILITIES IS A GENERAL COMMUNITY PROBLEM AND OBVIOUSLY THERE
SHOULD BE SOME SHARING BETWEEN THE CARRIERS AND THEIR PATRONS OF THE
BURDEN OF OVERCOMING THE EXISTING DIFFICULTIES IF THIS CONGESTED AREA
IS TO BE SERVED BY RAILROAD TRANSPORTATION."  286 I.C.C., AT 139-140. 

THE COMMISSION ALSO MADE REFERENCE TO FIGURES INTRODUCED BY THE
CARRIERS SHOWING THE CONSIDERABLE DISPARITY BETWEEN THE COST PER CAR OF
MAKING TEAM TRACK DELIVERY AND COST PER CAR OF MAKING TERMINAL
DELIVERY, INCLUDING UNLOADING (286 I.C.C., AT 131):

                                    NEW YORK

                                       MANHATTAN       PIER

                                          TEAM TRACKS
TERMINALS 

ERIE                  $45.44                  $83.87 

PENNSYLVANIA                                   73.57
122.73 

B.&O.                                          70.46
119.86

                                  PHILADELPHIA

                 PRODUCE

         TEAM TRACKS              TERMINALS 

PENNSYLVANIA                                  $39.64
$109.36 

B.&O.                                          27.66
75.94 

FN10  49 U.S.C. SEC. 2 PROHIBITS A CARRIER FROM CHARGING OR RECEIVING
"A GREATER OR LESS COMPENSATION FOR ANY SERVICE RENDERED  ...  THAN IT
CHARGES  ...  ANY OTHER PERSON  ...  FOR A LIKE AND CONTEMPORANEOUS
SERVICE IN THE TRANSPORTATION OF A LIKE KIND OF TRAFFIC UNDER
SUBSTANTIALLY SIMILAR CIRCUMSTANCES  ...  ." 

PARTICULAR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER  ...  ." 

FN11  IN ITS LATEST REPORT, THE COMMISSION STATED THAT "AS REGARDS
THE MOVEMENT OF FREIGHT, OTHER THAN FRUITS AND VEGETABLES  ...  THE
OPERATION IS IDENTICAL WITH THE MANNER IN WHICH FRUITS AND VEGETABLES
ARE CAR-FLOATED AND UNLOADED."  286 I.C.C., AT 123.  WITHOUT MORE, THE
COMMISSION THEN CONCLUDED THAT "THE RECORD DOES NOT WARRANT A FINDING
OF UNDUE PREFERENCE AND PREJUDICE OR UNJUST DISCRIMINATION IN VIOLATION
OF SECTIONS 2 OR 3 OF THE ACT."  286 I.C.C., AT 142. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, AND MR. JUSTICE DOUGLAS WOULD
HOLD THE COMMISSION'S ORDER INVALID AND ENJOIN ITS ENFORCEMENT ON THE
GROUND THAT THE COMMISSION FAILED TO DETERMINE THE REASONABLENESS OF
THE RAILROADS' LINE-HAUL RATES ON THE BASIS OF INCREASED UNLOADING
RATES ALLOWED BY THE COMMISSION. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :





















UNITED CONSTRUCTION WORKERS V. LABURNUM CONSTRUCTION CORP. 347 U.S. 656 



NO. 188.  ARGUED APRIL 5, 1954 - DECIDED JUNE 7, 1954 - 194 VA. 872, 75
S.E.2D 694, AFFIRMED. 


RESPONDENT CONSTRUCTION CORPORATION BROUGHT IN A VIRGINIA STATE COURT
AGAINST THREE LABOR ORGANIZATIONS A COMMON-LAW TORT ACTION FOR DAMAGES,
BASED UPON TORTIOUS CONDUCT WHICH CONSTITUTED ALSO AN UNFAIR LABOR
PRACTICE UNDER SEC. 8(B)(1)(A) OF THE LABOR MANAGEMENT RELATIONS ACT,
1947.  HELD:  THE ACT DID NOT GIVE TO THE NATIONAL LABOR RELATIONS
BOARD SUCH EXCLUSIVE JURISDICTION OVER THE SUBJECT MATTER OF THE ACTION
AS TO PRECLUDE THE STATE COURT FROM HEARING AND DETERMINING THE
ISSUES.  PP. 657-669. 

(A)  TO THE EXTENT THAT CONGRESS PRESCRIBED PREVENTIVE PROCEDURE
AGAINST UNFAIR LABOR PRACTICES, CONFLICTING STATE PROCEDURE TO THE SAME
END IS EXCLUDED.  BUT, TO THE EXTENT THAT CONGRESS HAS NOT PRESCRIBED
PROCEDURE FOR DEALING WITH THE CONSEQUENCES OF TORTIOUS CONDUCT ALREADY
COMMITTED, THERE IS NO GROUND FOR CONCLUDING THAT EXISTING CRIMINAL
PENALTIES OR LIABILITIES FOR TORTIOUS CONDUCT HAVE BEEN ELIMINATED. 
GARNER V. TEAMSTERS UNION, 346 U.S. 485, DISTINGUISHED.  PP. 663-666. 

(B)  THE FACT THAT THE 1947 ACT PRESCRIBED NEW PREVENTIVE PROCEDURE
AGAINST UNFAIR LABOR PRACTICES ON THE PART OF LABOR ORGANIZATIONS WAS
ADDITIONAL RECOGNITION OF CONGRESSIONAL DISAPPROVAL OF SUCH PRACTICES,
AND IS CONSISTENT WITH AN INCREASED INSISTENCE UPON THE LIABILITY OF
SUCH ORGANIZATIONS FOR TORTIOUS CONDUCT AND INCONSISTENT WITH THE
IMMUNIZATION FROM LIABILITY FOR DAMAGES CAUSED BY THEIR TORTIOUS
PRACTICES.  PP. 666-668. 

(C)  THE DENIAL OF JURISDICTION TO THE STATE COURT IN THIS CASE WOULD
MEAN THAT, WHERE THE FEDERAL PREVENTATIVE ADMINISTRATIVE PROCEDURES ARE
IMPOTENT OR INADEQUATE, THE OFFENDERS, BY COERCION OF THE TYPE FOUND
HERE, MAY DESTROY PROPERTY WITHOUT LIABILITY FOR THE DAMAGE DONE.  P.
669. 

(D)  THE FACT THAT PETITIONERS ARE LABOR ORGANIZATIONS, WITH NO
CONTRACTUAL RELATIONSHIP WITH RESPONDENT OR ITS EMPLOYEES, IS NO BASIS
FOR DEPRIVING THE STATE OF JURISDICTION OF THIS ACTION AGAINST THEM. 
P. 669. 

UNITED CONSTRUCTION WORKERS ET AL. V. LABURNUM CONSTRUCTION CORP. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER THE LABOR MANAGEMENT RELATIONS ACT,
1947, (FN1) HAS GIVEN THE NATIONAL LABOR RELATIONS BOARD SUCH EXCLUSIVE
JURISDICTION OVER THE SUBJECT MATTER OF A COMMON-LAW TORT ACTION FOR
DAMAGES AS TO PRECLUDE AN APPROPRIATE STATE COURT FROM HEARING AND
DETERMINING ITS ISSUES WHERE SUCH CONDUCT CONSTITUTES AN UNFAIR LABOR
PRACTICE UNDER THAT ACT.  FOR THE REASONS HEREAFTER STATED, WE HOLD
THAT IT HAS NOT. 

NOVEMBER 16, 1949, LABURNUM CONSTRUCTION CORPORATION, A VIRGINIA
CORPORATION, RESPONDENT HEREIN, FILED A NOTICE OF MOTION FOR JUDGMENT
IN THE CIRCUIT COURT OF THE CITY OF RICHMOND, VIRGINIA, AGAINST
PETITIONERS UNITED CONSTRUCTION WORKERS, AFFILIATED WITH UNITED MINE
WORKERS OF AMERICA; DISTRICT 50, UNITED MINE WORKERS OF AMERICA; AND
UNITED MINE WORKERS OF AMERICA.  THE PROCEEDING WAS A COMMON-LAW TORT
ACTION FOR COMPENSATORY AND PUNITIVE DAMAGES TOTALING $500,000.  THE
NOTICE CONTAINED SUBSTANTIALLY THE FOLLOWING ALLEGATIONS: WHILE
RESPONDENT WAS PERFORMING CONSTRUCTION WORK IN BREATHITT COUNTY,
KENTUCKY, UNDER CONTRACTS WITH POND CREEK POCAHONTAS COMPANY AND
OTHERS, JULY 26 - AUGUST 4, 1949, AGENTS OF THE RESPECTIVE PETITIONERS
CAME THERE.  THEY DEMANDED THAT RESPONDENT'S EMPLOYEES JOIN THE UNITED
CONSTRUCTION WORKERS AND THAT RESPONDENT RECOGNIZE THAT ORGANIZATION AS
THE SOLE BARGAINING AGENT FOR RESPONDENT'S EMPLOYEES ON THE PROJECT. 
THEY ADDED THAT, IF RESPONDENT WOULD NOT BE ALLOWED TO CONTINUE ITS
WORK.  UPON RESPONDENT'S REFUSAL AND THAT OF MANY OF ITS EMPLOYEES TO
YIELD TO SUCH DEMANDS, PETITIONERS' AGENTS THREATENED AND INTIMIDATED
RESPONDENT'S OFFICERS AND EMPLOYEES WITH VIOLENCE TO SUCH A DEGREE THAT
RESPONDENT WAS COMPELLED TO ABANDON ALL ITS PROJECTS IN THAT AREA.  THE
NOTICE FURTHER ALLEGED THAT, AS THE RESULT OF THIS CONDUCT OF
PETITIONERS' AGENTS, RESPONDENT WAS DEPRIVED OF SUBSTANTIAL PROFITS IT
OTHERWISE WOULD HAVE EARNED ON THOSE AND OTHER PROJECTS.  AFTER TRIAL,
A JURY FOUND PETITIONERS JOINTLY AND SEVERALLY LIABLE TO RESPONDENT FOR
$175,437.19 AS COMPENSATORY DAMAGES, AND $100,000 AS PUNITIVE DAMAGES,
MAKING A TOTAL OF $275,437.19. 

PETITIONERS MOVED FOR A NEW TRIAL CLAIMING NUMEROUS ERRORS OF LAW,
AND FOR A DISMISSAL ON THE GROUND THAT THE LABOR MANAGEMENT RELATIONS
ACT HAD DEPRIVED THE COURT OF ITS JURISDICTION OVER THE SUBJECT
MATTER.  BOTH MOTIONS WERE OVERRULED AND THE SUPREME COURT OF APPEALS
OF VIRGINIA GRANTED A WRIT OF ERROR AND SUPERSEDEAS.  AFTER ARGUMENT,
IT STRUCK OUT $146,111.10 OF THE COMPENSATORY DAMAGES AND AFFIRMED THE
JUDGMENT FOR THE REMAINING $129,326.09.  194 VA. 872, 75 S.E.2D 694. 
BECAUSE OF THE IMPORTANCE OF THE JURISDICTIONAL ISSUE TO THE
ENFORCEMENT OF COMMON-LAW RIGHTS AND TO THE ADMINISTRATION OF THE LABOR
MANAGEMENT RELATIONS ACT, WE GRANTED CERTIORARI LIMITED TO THE
FOLLOWING QUESTION: 

"'IN VIEW OF THE TYPE OF CONDUCT FOUND BY THE SUPREME COURT OF
APPEALS OF VIRGINIA TO HAVE BEEN CARRIED OUT BY PETITIONERS, DOES THE
NATIONAL LABOR RELATIONS BOARD HAVE EXCLUSIVE JURISDICTION OVER THE
SUBJECT MATTER SO AS TO PRECLUDE THE STATE COURT FROM HEARING AND
DETERMINING THE ISSUES IN A COMMON-LAW TORT ACTION BASED UPON THIS
CONDUCT?'"  346 U.S. 936.  (FN2) 

WE ARE CONCERNED ONLY WITH THE ABOVE-STATED JURISDICTIONAL QUESTION. 
WE ACCEPT THE VIEW OF THE NATIONAL LABOR RELATIONS BOARD THAT
RESPONDENT'S ACTIVITIES AFFECT INTERSTATE COMMERCE WITHIN THE MEANING
OF THE LABOR MANAGEMENT RELATIONS ACT.  (FN3)  THE "TYPE OF CONDUCT
FOUND BY THE SUPREME COURT OF APPEALS OF VIRGINIA" IS SET OUT IN THE
MARGIN.  (FN4)  ALTHOUGH THE NOTICE FOR JUDGMENT DOES NOT MENTION THE
LABOR MANAGEMENT RELATIONS ACT OR UNFAIR LABOR PRACTICES AS SUCH, WE
ASSUME THE CONDUCT BEFORE US ALSO CONSTITUTED AN UNFAIR LABOR PRACTICE
WITHIN THE FOLLOWING PROVISIONS OF THAT ACT: 

"SEC. 8  ...  . 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7: ...  ."  61 STAT. 140, 141, 29 U.S.C.
(1952 ED.)  SEC.  158(B)(1)(A). 

"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, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM
ANY OR ALL OF SUCH ACTIVITIES  ...  ."  61 STAT. 140, 29 U.S.C. (1952
ED.)  SEC.  157. 

PETITIONERS CONTEND THAT THE ACT OF 1947 HAS OCCUPIED THE LABOR
RELATIONS FIELD SO COMPLETELY THAT NO REGULATORY AGENCY OTHER THAN THE
NATIONAL LABOR RELATIONS BOARD AND NO COURT MAY ASSERT JURISDICTION
OVER UNFAIR LABOR PRACTICES AS DEFINED BY IT, UNLESS EXPRESSLY
AUTHORIZED BY CONGRESS TO DO SO.  THEY CLAIM THAT STATE COURTS
ACCORDINGLY ARE EXCLUDED NOT ONLY FROM ENJOINING FUTURE UNFAIR LABOR
PRACTICES AND THUS COLLIDING WITH THE BOARD, AS OCCURRED IN GARNER V.
TEAMSTERS UNION, 346 U.S. 485, BUT THAT STATE COURTS ARE EXCLUDED ALSO
FROM ENTERTAINING COMMON-LAW TORT ACTIONS FOR THE RECOVERY OF DAMAGES
CAUSED BY SUCH CONDUCT.  THE LATTER EXCLUSION IS THE ISSUE HERE.  IN
THE GARNER CASE, CONGRESS HAD PROVIDED A FEDERAL ADMINISTRATIVE REMEDY,
SUPPLEMENTED BY JUDICIAL PROCEDURE FOR ITS ENFORCEMENT, WITH WHICH THE
STATE INJUNCTIVE PROCEDURE CONFLICTED.  (FN5)  HERE CONGRESS HAS
NEITHER PROVIDED NOR SUGGESTED ANY SUBSTITUTE FOR THE TRADITIONAL STATE
COURT PROCEDURE FOR COLLECTING DAMAGES FOR INJURIES CAUSED BY TORTIOUS
CONDUCT.  FOR US TO CUT OFF THE INJURED RESPONDENT FROM THIS RIGHT OF
RECOVERY WILL DEPRIVE IT OF ITS PROPERTY WITHOUT RECOURSE OR
COMPENSATION.  TO DO SO WILL, IN EFFECT, GRANT PETITIONERS IMMUNITY
FROM LIABILITY FOR THEIR TORTIOUS CONDUCT.  WE SEE NO SUBSTANTIAL
REASON FOR REACHING SUCH A RESULT.  THE CONTRARY VIEW IS CONSISTENT
WITH THE LANGUAGE OF THE ACT AND THERE IS POSITIVE SUPPORT FOR IT IN
OUR DECISIONS AND IN THE LEGISLATIVE HISTORY OF THE ACT. 

IN THE GARNER CASE, WE SAID: 

"THE NATIONAL LABOR MANAGEMENT RELATIONS ACT, AS WE HAVE BEFORE
POINTED OUT, LEAVES MUCH TO THE STATES, THOUGH CONGRESS HAS REFRAINED
FROM TELLING US HOW MUCH.  WE MUST SPELL OUT FROM CONFLICTING
INDICATIONS OF CONGRESSIONAL WILL THE AREA IN WHICH STATE ACTION IS
STILL PERMISSIBLE. 

"THIS IS NOT AN INSTANCE OF INJURIOUS CONDUCT WHICH THE NATIONAL
LABOR RELATIONS BOARD IS WITHOUT EXPRESS POWER TO PREVENT AND WHICH
THEREFORE EITHER IS 'GOVERNABLE BY THE STATE OR IT IS ENTIRELY
UNGOVERNED.'  IN SUCH CASES WE HAVE DECLINED TO FIND AN IMPLIED
EXCLUSION OF STATE POWERS.  INTERNATIONAL UNION V. WISCONSIN BOARD, 336
U.S. 245, 254.  NOR IS THIS A CASE OF MASS PICKETING, THREATENING OF
EMPLOYEES, OBSTRUCTING STREETS AND HIGHWAYS, OR PICKETING HOMES.  WE
HAVE HELD THAT THE STATE STILL MAY EXERCISE 'ITS HISTORIC POWERS OVER
SUCH TRADITIONALLY LOCAL MATTERS AS PUBLIC SAFETY AND ORDER AND THE USE
OF STREETS AND HIGHWAYS.'  ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315
U.S. 740, 749."  346 U.S., AT 488. 

TO THE EXTENT THAT CONGRESS PRESCRIBED PREVENTIVE PROCEDURE AGAINST
UNFAIR LABOR PRACTICES, THAT CASE RECOGNIZED THAT THE ACT EXCLUDED
CONFLICTING STATE PROCEDURE TO THE SAME END.  TO THE EXTENT, HOWEVER,
THAT CONGRESS HAS NOT PRESCRIBED PROCEDURE FOR DEALING WITH THE
CONSEQUENCES OF TORTIOUS CONDUCT ALREADY COMMITTED, THERE IS NO GROUND
FOR CONCLUDING THAT EXISTING CRIMINAL PENALTIES OR LIABILITIES FOR
TORTIOUS CONDUCT HAVE BEEN ELIMINATED.  THE CARE WE TOOK IN THE GARNER
CASE TO DEMONSTRATE THE EXISTING CONFLICT BETWEEN STATE AND FEDERAL
ADMINISTRATIVE REMEDIES IN THAT CASE WAS, ITSELF, A RECOGNITION THAT IF
NO CONFLICT HAD EXISTED, THE STATE PROCEDURE WOULD HAVE SURVIVED.   THE
PRIMARILY PRIVATE NATURE OF CLAIMS FOR DAMAGES UNDER STATE LAW ALSO
DISTINGUISHES THEM IN A MEASURE FROM THE PUBLIC NATURE OF THE
REGULATION OF FUTURE LABOR RELATIONS UNDER FEDERAL LAW. 

THE LABOR MANAGEMENT RELATIONS ACT SETS UP NO GENERAL COMPENSATORY
PROCEDURE EXCEPT IN SUCH MINOR SUPPLEMENTARY WAYS AS THE REINSTATEMENT
OF WRONGFULLY DISCHARGED EMPLOYEES WITH BACK PAY.  61 STAT. 147, 29
U.S.C. (1952 ED.)  SEC.  160(C).  SEE ALSO, LABOR BOARD V. ELECTRICAL
WORKERS, 346 U.S. 464. 

ONE INSTANCE IN WHICH THE ACT PRESCRIBES JUDICIAL PROCEDURE FOR THE
RECOVERY OF DAMAGES CAUSED BY UNFAIR LABOR PRACTICES IS THAT WITH
REFERENCE TO THE JURISDICTION OF FEDERAL AND OTHER COURTS TO ADJUDICATE
CLAIMS FOR DAMAGES RESULTING FROM SECONDARY BOYCOTTS.  IN THAT INSTANCE
THE ACT EXPRESSLY AUTHORIZES A RECOVERY OF DAMAGES IN ANY FEDERAL
DISTRICT COURT AND "IN ANY OTHER COURT HAVING JURISDICTION OF THE
PARTIES."  (FN6)  BY THIS PROVISION, THE ACT ASSURES UNIFORMITY,
OTHERWISE LACKING, IN RIGHTS OF RECOVERY IN THE STATE COURTS AND GRANTS
JURISDICTION TO THE FEDERAL COURTS WITHOUT RESPECT TO THE AMOUNT IN
CONTROVERSY.  TO RECOVER DAMAGES UNDER THAT SECTION IS CONSISTENT WITH
THE EXISTENCE OF JURISDICTION IN STATE COURTS TO ENFORCE CRIMINAL
PENALTIES AND COMMON-LAW LIABILITIES GENERALLY.  ON THE OTHER HAND, IT
IS NOT CONSISTENT TO SAY THAT CONGRESS, IN THAT SECTION, AUTHORIZES
COURT ACTION FOR THE RECOVERY OF DAMAGES CAUSED BY TORTIOUS CONDUCT
RELATED TO SECONDARY BOYCOTTS AND YET, WITHOUT EXPRESS MENTION OF IT,
CONGRESS ABOLISHES ALL COMMON-LAW RIGHTS TO RECOVER DAMAGES CAUSED MORE
DIRECTLY AND FLAGRANTLY THROUGH SUCH CONDUCT AS IS BEFORE US. 

CONSIDERABLE LEGISLATIVE HISTORY SUPPORTS THIS INTERPRETATION.  UNDER
THE NATIONAL LABOR RELATIONS ACT, 1935, (FN7) THERE WERE NO
PROHIBITIONS OF UNFAIR LABOR PRACTICES ON THE PART OF LABOR
ORGANIZATIONS.  YET THERE IS NO DOUBT THAT IF AGENTS OF SUCH
ORGANIZATIONS AT THAT TIME HAD DAMAGED PROPERTY THROUGH THEIR TORTIOUS
CONDUCT, THE PERSONS RESPONSIBLE WOULD HAVE BEEN LIABLE TO A TORT
ACTION IN STATE COURTS FOR THE DAMAGE DONE.  SEE ALLEN-BRADLEY LOCAL V.
WISCONSIN BOARD, 315 U.S. 740. 

THE 1947 ACT HAS INCREASED, RATHER THAN DECREASED, THE LEGAL
RESPONSIBILITIES OF LABOR ORGANIZATIONS.  CERTAINLY THAT ACT DID NOT
EXPRESSLY RELIEVE LABOR ORGANIZATIONS FROM LIABILITY FOR UNLAWFUL
CONDUCT.  IT SOUGHT PRIMARILY TO EMPOWER A FEDERAL REGULATORY BODY,
THROUGH ADMINISTRATIVE PROCEDURE, TO FORESTALL UNFAIR LABOR PRACTICES
BY ANYONE IN CIRCUMSTANCES AFFECTING INTERSTATE COMMERCE.  THE FACT
THAT IT PRESCRIBED NEW PREVENTIVE PROCEDURE AGAINST UNFAIR LABOR
PRACTICES ON THE PART OF LABOR ORGANIZATIONS WAS AN ADDITIONAL
RECOGNITION OF CONGRESSIONAL DISAPPROVAL OF SUCH PRACTICES.  SUCH AN
EXPRESS RECOGNITION IS CONSISTENT WITH AN INCREASED INSISTENCE UPON THE
LIABILITY OF SUCH ORGANIZATIONS FOR TORTIOUS CONDUCT AND INCONSISTENT
WITH THEIR IMMUNIZATION FROM LIABILITY FOR DAMAGES CAUSED BY THEIR
TORTIOUS PRACTICES.  (FN8) 

THE LANGUAGE DECLARING THE CONGRESSIONAL POLICY AGAINST SUCH
PRACTICES IS PHRASED IN TERMS OF THEIR PREVENTION: 

"SEC. 10.  (A) THE BOARD IS EMPOWERED, AS HEREINAFTER PROVIDED, TO
PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED
IN SECTION 8) AFFECTING COMMERCE.  THIS POWER SHALL NOT BE AFFECTED BY
ANY OTHER MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN OR MAY BE
ESTABLISHED BY AGREEMENT, LAW, OR OTHERWISE:  ...  ."  61 STAT. 146, 29
U.S.C.  (1952 ED.)  SEC.  160(A).  (FN9) 

AFTER AN APPROPRIATE FINDING OF FACT.  THERE IS NO DECLARATION THAT
THIS PROCEDURE IS TO BE EXCLUSIVE. 

THE HISTORY OF THE ENACTMENT OF SEC. 8(B)(1)(A) LENDS FURTHER SUPPORT
TO THIS INTERPRETATION.  SENATE REPORT NO. 105, 80TH CONG., 1ST SESS.
50, AS TO S. 1126, SAID IN PART: 

"SINCE THIS BILL ESTABLISHES THE PRINCIPLE OF UNFAIR LABOR PRACTICES
ON THE PART OF UNIONS, WE CAN SEE NO REASON WHATEVER WHY THEY SHOULD
NOT BE SUBJECT TO THE SAME RULES AS THE EMPLOYERS.  THE COMMITTEE HEARD
MANY INSTANCES OF UNION COERCION OF EMPLOYEES SUCH AS THAT BROUGHT
ABOUT BY THREATS OF REPRISAL AGAINST EMPLOYEES AND THEIR FAMILIES IN
THE COURSE OR ORGANIZING CAMPAIGNS; ALSO DIRECT INTERFERENCE BY MASS
PICKETING AND OTHER VIOLENCE.  SOME OF THESE ACTS ARE ILLEGAL UNDER
STATE LAW, BUT WE SEE NO REASON WHY THEY SHOULD NOT ALSO CONSTITUTE
UNFAIR LABOR PRACTICES TO BE INVESTIGATED BY THE NATIONAL LABOR
RELATIONS BOARD, AND AT LEAST DEPRIVE THE VIOLATORS OF ANY PROTECTION
FURNISHED BY THE WAGNER ACT." 

SENATOR TAFT, ONE OF THE SPONSORS OF THE BILL, ADDED LATER: 

"BUT SUPPOSE THERE IS DUPLICATION IN EXTREME CASES; SUPPOSE THERE IS
A THREAT OF VIOLENCE CONSTITUTING VIOLATION OF THE LAW OF THE STATE. 
WHY SHOULD IT NOT BE AN UNFAIR LABOR PRACTICE?  IT IS ON THE PART OF
THE EMPLOYER.  IF AN EMPLOYER PROCEEDS TO USE VIOLENCE, AS EMPLOYERS
ONCE DID, IF THEY USE THE KIND OF GOON-SQUAD TACTICS LABOR UNIONS ARE
PERMITTED TO USE - AND THEY ONCE DID - IF THEY THREATEN MEN WITH
PHYSICAL VIOLENCE IF THEY JOIN A UNION, THEY ARE SUBJECT TO STATE LAW,
AND THEY ARE ALSO SUBJECT TO BE PROCEEDED AGAINST FOR VIOLATING THE
NATIONAL LABOR RELATIONS ACT.  THERE IS NO REASON IN THE WORLD WHY
THERE SHOULD NOT BE TWO REMEDIES FOR AN ACT OF THAT KIND."  93 CONG.
REC. 4024.  (FN10)    IF VIRGINIA IS DENIED JURISDICTION IN THIS CASE,
IT WILL MEAN THAT WHERE THE FEDERAL PREVENTIVE ADMINISTRATIVE
PROCEDURES ARE IMPOTENT OR INADEQUATE, THE OFFENDERS, BY COERCION OF
THE TYPE FOUND HERE, MAY DESTROY PROPERTY WITHOUT LIABILITY FOR THE
DAMAGE DONE.  IF PETITIONERS WERE UNORGANIZED PRIVATE PERSONS,
CONDUCTING THEMSELVES AS PETITIONERS DID HERE, VIRGINIA WOULD HAVE HAD
UNDOUBTED JURISDICTION OF THIS ACTION AGAINST THEM.  THE FACT THAT
PETITIONERS ARE LABOR ORGANIZATIONS, WITH NO CONTRACTUAL RELATIONSHIP
WITH RESPONDENT OR ITS EMPLOYEES, PROVIDES NO REASONABLE BASIS FOR A
DIFFERENT CONCLUSION.  (FN11) 

THE JURISDICTION OF THE SUPREME COURT OF APPEALS OF VIRGINIA IS,
THEREFORE, SUSTAINED AND ITS JUDGMENT AFFIRMED. 

FN1  61 STAT. 136 ET SEQ., 29 U.S.C. (1952 ED.)  SEC.  141 ET SEQ. 

FN2  OUR ORDER ALSO STATED THAT: 

"THE GOVERNMENT IS INVITED TO SUBMIT A MEMORANDUM SETTING FORTH THE
POLICY OF THE NATIONAL LABOR RELATIONS BOARD IN REGARD TO:  (1) THE
PROVISO IN SEC. 10(A), 61 STAT. 146, 29 U.S.C.  (SUPP. III) SEC.
160(A); AND (2) OTHER CASES, APART FROM THOSE IN SEC. 10(A), IN WHICH
THE BOARD DECLINES TO EXERCISE ITS STATUTORY JURISDICTION.  THE
MEMORANDUM SHOULD INDICATE BY WHAT STANDARDS THE BOARD DECLINES TO ACT
AND WHETHER THE STANDARDS ARE APPLIED BY RULE OR REGULATION OR ON A
CASE-BY-CASE METHOD." 

THE GOVERNMENT FILED A MEMORANDUM STATING THAT IT HAD FOUND IT "NOT
FEASIBLE UNDER THE LIMITATIONS PRESCRIBED BY THE ACT TO CONSUMATE
AGREEMENTS CEDING JURISDICTION" UNDER THE PROVISO IN SEC. 10(A).  IT
STATED ALSO THAT "UNDER THE STANDARDS WHICH THE BOARD IS CURRENTLY
CONTINUING TO APPLY, IT WOULD ASSERT JURISDICTION OVER AN ENTERPRISE
SIMILAR TO THAT OF RESPONDENT COMPANY HEREIN."  IT FOUND THAT
RESPONDENT'S ENTERPRISES CAME WITHIN AT LEAST THE FOLLOWING CATEGORIES
OF THE BOARD'S JURISDICTIONAL STANDARDS: 

"4.  ENTERPRISES PRODUCING OR HANDLING GOODS FOR OUT-OF-STATE
SHIPMENT, OR PERFORMING SERVICES OUTSIDE THE STATE IN WHICH THE FIRM IS
LOCATED, VALUED AT $25,000 A YEAR. 

"5.  ENTERPRISES FURNISHING GOODS OR SERVICES OF $50,000 A YEAR OR
MORE TO CONCERNS IN CATEGORIES 1, 2, OR 4 SUPRA." 

SEE ALSO, MIMEOGRAPH RELEASE OF NATIONAL LABOR RELATIONS BOARD, DATED
OCTOBER 6, 1950, ENTITLED "N.L.R.B. CLARIFIES AND DEFINES AREAS IN
WHICH IT WILL AND WILL NOT EXERCISE JURISDICTION"; LABOR BOARD V.
DENVER BUILDING COUNCIL, 341 U.S. 675, 684-685. 

FN3  SEE NOTE 2, SUPRA. 

FN4  "DURING THE PERIOD FROM SEPTEMBER 6, 1947 TO DECEMBER 1, 1949,
THE PLAINTIFF PERFORMED WORK IN WEST VIRGINIA AND KENTUCKY FOR POND
CREEK POCAHONTAS COMPANY, ISLAND CREEK COAL COMPANY, AND THEIR
SUBSIDIARY COMPANIES, UNDER TWELVE SEPARATE CONTRACTS AMOUNTING TO MORE
THAN $650,000, FROM WHICH IT DERIVED AN ANNUAL PROFIT SLIGHTLY OVER
$25,000  ...  . 

     *         *         *     *         * 

"IN OCTOBER, 1948, THE TWO COAL-PRODUCING COMPANIES DETERMINED TO
OPEN A MINE IN BREATHITT COUNTY, KENTUCKY, AND BRYAN (PRESIDENT OF
RESPONDENT) WAS ASKED TO UNDERTAKE THE BUILDING OF THE PREPARATION
PLANT THERE.  BECAUSE OF THE UNDEVELOPED CONDITION OF THE ROADS AND
LACK OF LIVING ACCOMMODATIONS FOR THE LABORERS, BRYAN WAS TOLD THAT IF
LABURNUM WOULD UNDERTAKE THE PROJECT IT WOULD BE AWARDED ADDITIONAL
WORK WHICH WOULD BE REQUIRED FOR THE OPERATION OF ANOTHER MINE IN
BREATHITT COUNTY, AMOUNTING TO MORE THAN $600,000, ON THE BASIS OF COST
PLUS A FEE OF FIVE PER CENT. 

"ON OCTOBER 28, 1948, POND CREEK POCAHONTAS COMPANY AWARDED THE
PLAINTIFF A CONTRACT FOR CONSTRUCTION OF THE PREPARATION PLANT ON THE
BASIS OF COST PLUS A FEE OF FIVE PER CENT, THE TOTAL FEE NOT TO EXCEED
THE SUM OF $12,000.  THE ESTIMATED COST OF THE PROJECT WAS $200,000. 
WORK ON THIS PROJECT WAS COMMENCED NOVEMBER 1, 1948, AND WAS
APPROXIMATELY NINETY-FIVE PER CENT COMPLETED WEHN IT WAS INTERRUPTED ON
JULY 26, 1949.  PURSUANT TO THEIR AGREEMENT THE COAL COMPANIES ALSO
AWARDED LABURNUM SEVERAL PROJECTS INCLUDED IN THE ADDITIONAL WORK TO
WHICH REFERENCE HAS BEEN MADE. 

"UPON COMMENCING THE WORK IN BREATHITT COUNTY, LABURNUM, IN
COMPLIANCE WITH ITS AGREEMENT WITH RICHMOND BUILDING & CONSTRUCTION
TRADES COUNCIL, PROCURED SKILLED LABORERS THROUGH THE NEAREST LOCAL
AFFILIATES OF THE AMERICAN FEDERATION OF LABOR.  WITH THE KNOWLEDGE AND
CONSENT OF THESE AFFILIATES IT EMPLOYED LOCAL UNSKILLED LABORERS WHO
WERE NOT MEMBERS OF ANY LABOR ORGANIZATION. 

"LABURNUM PROCEEDED WITH ITS WORK ON THESE SEVERAL PROJECTS WITHOUT
TROUBLE UNTIL JULY 14, 1949, WHEN WILLIAM O. HART, SPEAKING FROM
PIKEVILLE, KENTUCKY, TELEPHONED BRYAN WHO WAS IN RICHMOND.  ACCORDING
TO THE TESTIMONY OF BRYAN, WHICH WAS ACCEPTED BY THE JURY, HART
IDENTIFIED HIMSELF AS A 'FIELD REPRESENTATIVE OF THE UNITED
CONSTRUCTION WORKERS AND DISTRICT 50 OF THE UNITED MINE WORKERS OF
AMERICA,' WORKING UNDER DAVID HUNTER, 'REGIONAL DIRECTOR OF REGION 58
OF UNITED CONSTRUCTION WORKERS AND DISTRICT 50,' WITH HEADQUARTERS IN
PIKEVILLE.  HART TOLD BRYAN THAT HE WAS FAMILIAR WITH THE WORK WHICH
LABURNUM WAS DOING AND ABOUT TO DO IN BREATHITT COUNTY, THAT THE
PLAINTIFF WAS 'WORKING IN UNITED MINE WORKERS TERRITORY,' AND THAT HE
(HART) WOULD CLOSE DOWN THIS WORK UNLESS THE PLAINTIFF RECOGNIZED THE
UNITED CONSTRUCTION WORKERS IN THE EMPLOYMENT OF ITS WORKERS.  BRYAN
TOLD HART OF LABURNUM'S AGREEMENT WITH THE AMERICAN FEDERATION OF LABOR
AFFILIATE AT RICHMOND, UNDER WHICH IT WAS TO EMPLOY MEMBERS OF THAT
UNION, AND THAT CONSEQUENTLY IT WOULD NOT BE ABLE TO COMPLY WITH HART'S
DEMAND AND MAKE AN AGREEMENT WITH THE UNITED CONSTRUCTION WORKERS. 
HART REPLIED THAT HE WAS GOING 'TO TAKE OVER' THE PLAINTIFF'S WORK,
THAT HE INTENDED TO 'ORGANIZE' ALL OF ITS WORKERS, 'INCLUDING THE
CARPENTERS, ELECTRICIANS, PIPEFITTERS, IRONWORKERS, MILLWRIGHTS,
LABORERS, AND EVERYBODY ELSE,' AND THAT IF THE PLAINTIFF FAILED TO MAKE
AN AGREEMENT 'RECOGNIZING THE UNITED CONSTRUCTION WORKERS, HE (HART)
WOULD CLOSE DOWN' ALL OF THE PLAINTIFF'S WORK IN BREATHITT COUNTY, AS
HAD BEEN DONE IN OTHER INSTANCES WITHIN HIS (HART'S) TERRITORY. 

     *   *         *         *         * 

"ON MONDAY, JULY 25, ABOUT 7:30 P.M., DELINGER (IN RESPONDENT'S
EMPLOY) TELEPHONED BRYAN THAT HE HAD BEEN INFORMED THAT ON THE NEXT
DAY, AT NOON, THE UNITED CONSTRUCTION WORKERS WERE COMING TO THE JOB
SITE WITH A LARGE GROUP OF MEN, THAT THEY WOULD BE ARMED, AND WOULD
STOP THE PLAINTIFF'S EMPLOYEES FROM WORKING ON THE PROJECTS. 

*         *         *         *         * 

"  ...  WHEN HE (BRYAN) ARRIVED THERE (JULY 26) HE FOUND THAT ALL
WORK ON THE SEVERAL PROJECTS IN WHICH HIS MEN WERE ENGAGED HAD
STOPPED.  IT DEVELOPED THAT ABOUT NOON ON THAT DAY HART HAD ARRIVED AT
THE JOB SITE ACCOMPANIED BY A CROWD VARIOUSLY ESTIMATED AT FROM 40 TO
150 MEN.  THERE IS EVIDENCE THAT THIS WAS 'A VERY ROUGH, BOISTEROUS
CROWD,' THAT SOME OF THE MEN USED ABUSIVE LANGUAGE, THAT SOME WERE
DRUNK, AND THAT SOME CARRIED GUNS AND KNIVES. 

  *         *         *         *         * 

"HART AND HIS MEN WENT TO THE COAL PREPARATION PLANT AND TOLD THE
LABURNUM WORKERS THERE THAT HE WAS TAKING OVER THE JOB AND THAT THE
LABURNUM WORKERS WOULD HAVE TO 'JOIN UP WITH THE UNITED CONSTRUCTION
WORKERS.'  HE ACCOSTED OTHER EMPLOYEES OF THE PLAINTIFF AT ANOTHER SITE
WHERE HE REPEATED HIS THREATS THAT HE WOULD 'TAKE OVER' THE JOB UNLESS
THEY JOINED THE UNION WHICH HE REPRESENTED.  SOME OF THE PLAINTIFF'S
EMPLOYEES YIELDED TO THESE THREATS AND AGREED TO JOIN HART'S LABOR
ORGANIZATION, WHILE OTHERS REFUSED TO DO SO. 

     *         *         *         *         * 

"BRYAN TALKED WITH HART AGAIN AT THE JOB SITE ON AUGUST 1, AND, AS HE
SAYS, HART 'LEFT NO DOUBT IN ANYBODY'S MIND THAT HE WAS GOING TO HAVE
PEOPLE TO STOP ANY MEN FROM WORKING WHO TRIED.'  'HE CONTINUALLY
THREATENED TO BRING A LARGE CROWD OF PEOPLE THERE FROM BEAVER CREEK AND
OTHER PLACES TO STOP US FROM WORKING IF ANY OF OUR PEOPLE WENT TO
WORK.  HE SAID HE WOULD DO THAT UNLESS WE SIGNED A PAPER RECOGNIZING
HIS ORGANIZATION AS THE REPRESENTATIVE OF THE LABORERS.'  BRYAN REPLIED
THAT HE 'WOULDN'T DO IT AND COULDN'T DO IT' BECAUSE OF HIS PRIOR
OBLIGATION TO ANOTHER LABOR ORGANIZATION.  MOREOVER, HART THREATENED
THAT IF THE LABURNUM MEN 'WENT BACK TO WORK HE WAS GOING TO CLOSE DOWN
THE MINE OPERATIONS BY STOPPING THE UNITED MINE WORKERS FROM WORKING
FOR POND CREEK.' 

"  ...  CONSEQUENTLY, ON AUGUST 4, THE COAL COMPANIES, BECAUSE OF THE
DISPUTE IN WHICH THE PLAINTIFF HAD BECOME INVOLVED WITH REPRESENTATIVES
OF THESE LABOR ORGANIZATIONS, CANCELED THE CONSTRUCTION CONTRACTS WITH
LABURNUM WHICH WERE THEN IN PROGRESS. 

     *         *         *      *         * 

"AFTER THE VIOLENT EVENTS OF JULY, 1949, POND CREEK POCAHONTAS
COMPANY AND ISLAND CREEK COAL COMPANY ABANDONED THE AWARD OF THE
ADDITIONAL WORK UPON A COST PLUS FIVE PER CENT BASIS WHICH THEY HAD
PROMISED THE LABURNUM COMPANY.  THE COAL COMPANIES INVITED BIDS UPON
THIS PROPOSED CONSTRUCTION, BUT LABURNUM WAS UNSUCCESSFUL IN ALL OF ITS
BIDS FOR SUCH WORK.  THE OFFICIALS OF THE COAL COMPANIES EXPRESSED
THEIR HIGH REGARD AND SYMPATHY FOR BRYAN, BUT EXPLAINED THAT THEY COULD
NOT RUN THE RISK OF HAVING THE DEFENDANT UNIONS SHUT DOWN THE MINING
OPERATIONS BECAUSE OF THE UNIONS' DIFFERENCES WITH LABURNUM."  194 VA.
872, 880-881, 882, 883, 884-885, 75 S.E.2D 694, 700-701, 702, 703. 

FN5  THE CASES RELIED UPON TO EXCLUDE STATE JURISDICTION ARE THOSE
WHERE A CONFLICT WITH FEDERAL CONTROL HAS BEEN MADE CLEAR. 

"WHEN CONGRESS DOES EXERCISE IT PARAMOUNT AUTHORITY, IT IS OBVIOUS
THAT CONGRESS MAY DETERMINE HOW FAR ITS REGULATION SHALL GO.  THERE IS
NO CONSTITUTIONAL RULE WHICH COMPELS CONGRESS TO OCCUPY THE WHOLE
FIELD.  CONGRESS MAY CIRCUMSCRIBE ITS REGULATION AND OCCUPY ONLY A
LIMITED FIELD.  WHEN IT DOES SO, STATE REGULATION OUTSIDE THAT LIMITED
FIELD AND OTHERWISE ADMISSIBLE IS NOT FORBIDDEN OR DISPLACED.  THE
PRINCIPLE IS THOROUGHLY ESTABLISHED THAT THE EXERCISE BY THE STATE OF
ITS POLICE POWER, WHICH WOULD BE VALID IF NOT SUPERSEDED BY FEDERAL
ACTION, IS SUPERSEDED ONLY WHERE THE REPUGNANCE OR CONFLICT IS SO
'DIRECT AND POSITIVE' THAT THE TWO ACTS CANNOT 'BE RECONCILED OR
CONSISTENTLY STAND TOGETHER.'"  KELLY V. WASHINGTON, 302 U.S. 1, 10. 
SEE ALSO, AMALGAMATED ASSN. V. WISCONSIN BOARD, 340 U.S. 383; UNITED
AUTOMOBILE WORKERS V. O'BRIEN, 339 U.S. 454; PLANKINTON PACKING CO. V.
WISCONSIN BOARD, 338 U.S. 953; LA CROSSE TELEPHONE CORP. V. WISCONSIN
BOARD, 336 U.S. 18; BETHLEHEM STEEL CO. V. NEW YORK BOARD, 330 U.S.
767; HILL V. FLORIDA, 325 U.S. 538. 

FN6  "SEC.  303  ...  . 

"(B)  WHOEVER SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY REASON
OF ANY VIOLATION OF SUBSECTION (A) BOYCOTTS AND OTHER UNLAWFUL
COMBINATIONS MAY SUE THEREFOR IN ANY DISTRICT COURT OF THE UNITED
STATES SUBJECT TO THE LIMITATIONS AND PROVISIONS OF SECTION 301 HEREOF
WITHOUT RESPECT TO THE AMOUNT IN CONTROVERSY, OR IN ANY OTHER COURT
HAVING JURISDICTION OF THE PARTIES, AND SHALL RECOVER THE DAMAGES BY
HIM SUSTAINED AND THE COST OF THE SUIT."  61 STAT. 158, 159, 29 U.S.C.
(1952 ED.)  SEC.  187(B). 

FN7  49 STAT. 449 ET SEQ., 29 U.S.C. (1946 ED.)  SEC.  151 ET SEQ. 

FN8  "  ...  WHILE THE FEDERAL BOARD IS EMPOWERED TO FORBID A STRIKE,
WHEN AND BECAUSE ITS PURPOSE IS ONE THAT THE FEDERAL ACT MADE ILLEGAL,
IT HAS BEEN GIVEN NO POWER TO FORBID ONE BECAUSE ITS METHOD IS ILLEGAL
EVEN IF THE ILLEGALITY WERE TO CONSIST OF ACTUAL OR THREATENED
VIOLENCE TO PERSONS OR DESTRUCTION OF PROPERTY.  POLICING OF SUCH
CONDUCT IS LEFT WHOLLY TO THE STATES.  IN THIS CASE THERE WAS ALSO
EVIDENCE OF CONSIDERABLE INJURY TO PROPERTY AND INTIMIDATION OF OTHER
EMPLOYEES BY THREATS AND NO ONE QUESTIONS THE STATE'S POWER TO POLICE
COERCION BY THOSE METHODS."  INTERNATIONAL UNION V. WISCONSIN BOARD,
336 U.S. 245, 253.  SEE ALSO, PP. 255-258 DISTINGUISHING THE CONDUCT
THERE COMPLAINED OF FROM THAT PROTECTED BY SEC. 7 OF THE LABOR
MANAGEMENT RELATIONS ACT. 

FN9  "  ...  BY RETAINING THE LANGUAGE WHICH PROVIDES THE BOARD'S
POWERS UNDER SECTION 10 SHALL NOT BE AFFECTED BY OTHER MEANS OF
ADJUSTMENT, THE CONFERENCE AGREEMENT MAKES CLEAR THAT, WHEN TWO
REMEDIES EXIST, ONE BEFORE THE BOARD AND ONE BEFORE THE COURTS, THE
REMEDY BEFORE THE BOARD SHALL BE IN ADDITION TO, AND NOT IN LIEU OF,
OTHER REMEDIES."  CONFERENCE REPORT ON H.R. 3020, H.R. REP. NO. 510,
80TH CONG., 1ST SESS. 52. 

FN10  SIMILARLY, H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 8, SAID:

                       "EQUAL RESPONSIBILITY BEFORE THE LAW 

"WHEN EMPLOYERS VIOLATE RIGHTS THAT THE LABOR ACT GIVES TO EMPLOYEES
OR TO UNIONS, THE BOARD CAN ISSUE ORDERS AGAINST THEM.  WHEN EMPLOYERS
VIOLATE RIGHTS OF EMPLOYEES OR OF UNIONS UNDER OTHER LAWS, THEY MUST
ANSWER IN COURT FOR WHAT THEY DO.  UNDER THE BILL, WHEN UNIONS AND
THEIR MEMBERS VIOLATE RIGHTS GIVEN TO EMPLOYERS AND TO EMPLOYEES, THE
NEW BOARD CAN ISSUE ORDERS PROTECTING THE EMPLOYERS AND THE
EMPLOYEES." 

FN11  SEE GENERALLY, NOTE, LABOR LAW - FEDERAL AND STATE JURISDICTION
- COMMON LAW REMEDIES, 27 N.Y.U.L. REV. 468; COX AND SEIDMAN,
FEDERALISM AND LABOR RELATIONS, 64 HARV.  L. REV. 211, 326. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

IF THIS LABOR ORGANIZER HAD COMMITTED MURDER ON THE PICKET LINE, HE
WOULD, OF COURSE, BE SUBJECT TO PROSECUTION BY VIRGINIA.  FOR THE
FEDERAL ACT IN NO WAY DEALS WITH SUCH CONDUCT AND THERE MAY BE DOUBT IF
CONSTITUTIONALLY IT COULD DO SO, AT LEAST IN SUCH A WAY AS TO SUPERSEDE
LOCAL LAW. 

THE PRESENT CASE IS DIFFERENT.  THE LABOR ORGANIZER'S CONDUCT THAT
HAS LED TO THIS JUDGMENT FOR DAMAGES IS CONDUCT WITH WHICH THE FEDERAL
ACT SPECIFICALLY DEALS.  ON THE FACTS FOUND BY THE STATE COURT, THE
LABOR ORGANIZER AND THE UNION HAVE COMMITTED AN UNFAIR LABOR PRACTICE
UNDER SEC. 8(B)(1)(A), BY USING THREATS AND THE FORCE OF A PICKET LINE
TO MAKE EMPLOYEES JOIN A UNION, CONTRARY TO THEIR DESIRES.  A STATE
COURT OR A STATE LABOR BOARD COULD NOT ENJOIN THAT CONDUCT, AS GARNER
V. TEAMSTERS UNION, 346 U.S. 485, TEACHES.  AND I THINK LIKE REASONS
PRECLUDE A STATE FROM APPLYING OTHER SANCTIONS TO IT.    THIS CONDUCT
IS THE STUFF OUT OF WHICH LABOR-MANAGEMENT STRIFE HAS BEEN MADE, EVER
SINCE TRADE UNIONISM BEGAN ITS GROWTH.  FOR YEARS THE LAW OF THE JUNGLE
APPLIED, VICTORY GOING TO THE STRONGEST.   THE EMERGENCE OF MORE
CIVILIZED METHODS OF SETTLING THESE DISPUTES IS FAMILIAR HISTORY.  AT
FIRST, THE LAW WAS MOSTLY ON THE SIDE OF MANAGEMENT.  THE COURTS, AS
WELL AS THE LEGISLATURES, SHAPED THE RULES AGAINST THE INTERESTS OF
LABOR.  GRADUALLY THE HUMAN RIGHTS IN INDUSTRY WERE RECOGNIZED UNTIL
THEY FINALLY RECEIVED MORE GENEROUS RECOGNITION UNDER THE WAGNER ACT. 

THAT ACT SUBJECTED THESE INDUSTRIAL DISPUTES TO SETTLEMENT AND
ADJUDICATION IN ADMINISTRATIVE PROCEEDINGS.  FOR EXAMPLE, THE
ADMINISTRATIVE AGENCY WAS GRANTED POWER TO FORBID EMPLOYERS FROM
INTERFERING WITH TRADE-UNION ACTIVITIES.  MAY A UNION NOT ONLY
INSTITUTE PROCEEDINGS BEFORE THE NATIONAL LABOR RELATIONS BOARD BUT SUE
THE EMPLOYER AS WELL?  OR MAY IT HAVE A CHOICE OF REMEDIES?  I WOULD
THINK NOT.  BUT IF THE UNION MAY NOT SUE THE EMPLOYER FOR THE TORTIOUS
CONDUCT, WHY MAY THE EMPLOYER SUE THE UNION? 

I THINK THAT FOR EACH WRONG WHICH THE FEDERAL ACT RECOGNIZES THE
PARTIES HAVE ONLY THE REMEDY SUPPLIED BY THAT ACT - AND FOR A SIMPLE
REASON.  THE FEDERAL ACT WAS DESIGNED TO DECIDE LABOR-MANAGEMENT
CONTROVERSIES, TO BRING THEM TO A PEACEFUL, ORDERLY SETTLEMENT, TO PUT
THE PARTIES ON THE BASIS OF EQUALITY WHICH THE RULES DESIGNED BY
CONGRESS ENVISAGED.* IF THE PARTIES NOT ONLY HAVE THE REMEDY CONGRESS
PROVIDED BUT THE RIGHT TO SUE FOR DAMAGES AS WELL, THE CONTROVERSY IS
NOT SETTLED BY WHAT THE FEDERAL AGENCY DOES.  IT DRAGS ON AND ON IN THE
COURTS, KEEPING OLD WOUNDS OPEN, AND ROBBING THE ADMINISTRATIVE REMEDY
OF THE HEALING EFFECTS IT WAS INTENDED TO HAVE. 

*SECTION 1(B) OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, 61 STAT.
136, 29 U.S.C. SEC.  141(B), PROVIDES THAT: 

"IT IS THE PURPOSE AND POLICY OF THIS ACT, IN ORDER TO PROMOTE THE
FULL FLOW OF COMMERCE, TO PRESCRIBE THE LEGITIMATE RIGHTS OF BOTH
EMPLOYEES AND EMPLOYERS IN THEIR RELATIONS AFFECTING COMMERCE, TO
PROVIDE ORDERLY AND PEACEFUL PROCEDURES FOR PREVENTING THE INTERFERENCE
BY EITHER WITH THE LEGITIMATE RIGHTS OF THE OTHER, TO PROTECT THE
RIGHTS OF INDIVIDUAL EMPLOYEES IN THEIR RELATIONS WITH LABOR
ORGANIZATIONS WHOSE ACTIVITIES AFFECT COMMERCE, TO DEFINE AND PROSCRIBE
PRACTICES ON THE PART OF LABOR AND MANAGEMENT WHICH AFFECT COMMERCE AND
ARE INIMICAL TO THE GENERAL WELFARE, AND TO PROTECT THE RIGHTS OF THE
PUBLIC IN CONNECTION WITH LABOR DISPUTES AFFECTING COMMERCE." 
..END :





















PHILLIPS PETROLEUM CO. V. WISCONSIN 347 U.S. 672 


NO. 280.  ARGUED APRIL 6-7, 1954 - DECIDED JUNE 7, 1954 - 92 U.S. APP.
D.C. 284, 205 F.2D 706, AFFIRMED. 


THE COMPANY HERE INVOLVED ENGAGES IN THE PRODUCTION, GATHERING,
PROCESSING AND SALE OF NATURAL GAS.  IT DOES NOT ENGAGE IN THE
INTERSTATE TRANSMISSION OF GAS FROM THE PRODUCING FIELDS TO CONSUMER
MARKETS AND IS NOT AFFILIATED WITH ANY COMPANY THAT DOES SO; BUT IT
SELLS NATURAL GAS TO FIVE INTERSTATE PIPELINE COMPANIES WHICH TRANSPORT
AND RESELL THE GAS TO CONSUMERS AND LOCAL DISTRIBUTING COMPANIES IN 14
STATES.  THE GAS FLOWS FROM PRODUCING WELLS THROUGH A NETWORK OF
CONVERGING PIPELINES TO ONE OF 12 PROCESSING PLANTS, WHERE EXTRACTABLE
PRODUCTS AND IMPURITIES ARE REMOVED.  THENCE IT FLOWS A SHORT DISTANCE
TO A DELIVERY POINT WHERE IT IS SOLD AND DELIVERED TO AN INTERSTATE
PIPELINE COMPANY.  IT THEN CONTINUES ITS FLOW THROUGH AN INTERSTATE
PIPELINE SYSTEM UNTIL DELIVERED IN OTHER STATES.  HELD:  THIS COMPANY
IS A "NATURAL-GAS COMPANY" WITHIN THE MEANING OF THE NATURAL GAS ACT,
AND ITS SALES IN INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE ARE
SUBJECT TO THE JURISDICTION OF, AND RATE REGULATION BY, THE FEDERAL
POWER COMMISSION.  PP. 674-685. 

(A)  THE COMPANY ADMITTEDLY IS ENGAGED IN "THE SALE IN INTERSTATE
COMMERCE OF NATURAL GAS FOR RESALE" WITHIN THE MEANING OF THE ACT.  P.
677. 

(B)  THE SALES BY THIS COMPANY ARE NOT A PART OF THE "PRODUCTION OR
GATHERING OF NATURAL GAS," WHICH ARE EXCLUDED FROM THE COMMISSION'S
JURISDICTION UNDER SEC. 1(B), SINCE THE PRODUCTION AND GATHERING END
BEFORE THE SALES OCCUR.  INTERSTATE NATURAL GAS CO. V. FEDERAL POWER
COMM'N, 331 U.S. 682.  PP. 677-681. 

(C)  CONGRESS DID NOT INTEND TO REGULATE ONLY INTERSTATE PIPELINE
COMPANIES.  RATHER THE LEGISLATIVE HISTORY INDICATES A CONGRESSIONAL
INTENT TO GIVE THE COMMISSION JURISDICTION OVER THE RATES OF ALL
WHOLESALES OF NATURAL GAS IN INTERSTATE COMMERCE, WHETHER BY A PIPELINE
COMPANY OR NOT AND WHETHER OCCURRING BEFORE, DURING, OR AFTER
TRANSMISSION BY AN INTERSTATE PIPELINE COMPANY.  PP. 681-684. 

(D)  CITIES SERVICE GAS CO. V. PEERLESS OIL & GAS CO., 340 U.S. 179,
AND PHILLIPS PETROLEUM CO. V. OKLAHOMA, 340 U.S. 190, DO NOT REQUIRE A
DIFFERENT RESULT.  PP. 684-685. 

(E)  REGARDLESS OF SALES IN INTERSTATE COMMERCE FOR RESALE MADE BY A
SO-CALLED INDEPENDENT NATURAL-GAS PRODUCER IS NOT ESSENTIALLY DIFFERENT
FROM REGULATION OF SUCH SALES WHEN MADE BY AN AFFILIATE OF AN
INTERSTATE PIPELINE COMPANY.  P. 685. 

PHILLIPS PETROLEUM CO. V. WISCONSIN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 281, TEXAS ET AL. V. WISCONSIN ET AL.; AND NO.
418, FEDERAL POWER COMMISSION V. WISCONSIN ET AL., ALSO ON CERTIORARI
TO THE SAME COURT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT A COMMON QUESTION CONCERNING THE JURISDICTION OF
THE FEDERAL POWER COMMISSION OVER THE RATES CHARGED BY A NATURAL-GAS
PRODUCER AND GATHERER IN THE SALE IN INTERSTATE COMMERCE OF SUCH GAS
FOR RESALE.  ALL THREE CASES ARE AN OUTGROWTH OF THE SAME PROCEEDING
BEFORE THE POWER COMMISSION AND INVOLVE THE SAME FACTS AND ISSUES. 

THE PHILLIPS PETROLEUM COMPANY (FN1) IS A LARGE INTEGRATED OIL
COMPANY WHICH ALSO ENGAGES IN THE PRODUCTION, GATHERING, PROCESSING,
AND SALE OF NATURAL GAS.  WE ARE HERE CONCERNED ONLY WITH THE NATURAL
GAS OPERATIONS.  PHILLIPS IS KNOWN AS AN "INDEPENDENT" NATURAL-GAS
PRODUCER IN THAT IT DOES NOT ENGAGE IN THE INTERSTATE TRANSMISSION OF
GAS FROM THE PRODUCING FIELDS TO CONSUMER MARKETS AND IS NOT AFFILIATED
WITH ANY INTERSTATE NATURAL-GAS PIPELINE COMPANY.  AS REVEALED BY THE
RECORD BEFORE US, HOWEVER, PHILLIPS DOES SELL NATURAL GAS TO FIVE
INTERSTATE PIPELINE TRANSMISSION COMPANIES WHICH TRANSPORT AND RESELL
THE GAS TO CONSUMERS AND LOCAL DISTRIBUTING COMPANIES IN FOURTEEN
STATES. 

APPROXIMATELY 50% OF THIS GAS IS PRODUCED BY PHILLIPS, AND THE
REMAINDER IS PURCHASED FROM OTHER PRODUCERS.  A SUBSTANTIAL PART IS
CASINGHEAD GAS - I.E., PRODUCED IN CONNECTION WITH THE PRODUCTION OF
OIL.  THE GAS FLOWS FROM THE PRODUCING WELLS, IN MOST INSTANCES AT WELL
PRESSURE, THROUGH A NETWORK OF CONVERGING PIPELINES OF PROGRESSIVELY
LARGER SIZE TO ONE OF TWELVE PROCESSING PLANTS, WHERE EXTRACTABLE
PRODUCTS AND IMPURITIES ARE REMOVED.  OF THE NINE SUCH NETWORKS OF
PIPELINES INVOLVED IN THESE CASES, FIVE ARE LOCATED ENTIRELY IN TEXAS,
ONE IN OKLAHOMA, ONE IN NEW MEXICO, AND TWO EXTEND INTO BOTH TEXAS AND
OKLAHOMA.  AFTER PROCESSING IS COMPLETED, THE GAS FLOWS FROM THE
PROCESSING PLANT THROUGH AN OUTLET PIPE, OF VARYING LENGTHS UP TO A FEW
HUNDRED FEET, TO A DELIVERY POINT WHERE THE GAS IS SOLD AND DELIVERED
TO AN INTERSTATE PIPELINE COMPANY.  THE GAS THEN CONTINUES ITS FLOW
THROUGH THE INTERSTATE PIPELINE SYSTEM UNTIL DELIVERED IN OTHER
STATES. 

THE FEDERAL POWER COMMISSION, ON OCTOBER 28, 1948, INSTITUTED AN
INVESTIGATION TO DETERMINE WHETHER PHILLIPS IS A NATURAL-GAS COMPANY
WITHIN THE JURISDICTION OF THE COMMISSION, AND, IF SO, WHETHER ITS
NATURAL-GAS RATES ARE UNJUST OR UNREASONABLE.  IN EXTENSIVE HEARINGS
BEFORE AN EXAMINER, THE FACTS DESCRIBED ABOVE WERE DEVELOPED, AS WELL
AS MUCH ADDITIONAL INFORMATION.  AN INTERMEDIATE DECISION HAVING BEEN
DISPENSED WITH, THE COMMISSION ISSUED AN OPINION AND ORDER IN WHICH IT
HELD THAT PHILLIPS IS NOT A "NATURAL-GAS COMPANY" WITHIN THE MEANING OF
THAT TERM AS USED IN THE NATURAL GAS ACT, (FN2) AND THEREFORE IS NOT
WITHIN THE COMMISSION'S JURISDICTION OVER RATES.  (FN3) CONSEQUENTLY,
THE COMMISSION DID NOT PROCEED TO INVESTIGATE THE REASONABLENESS OF THE
RATES CHARGED BY PHILLIPS.  ON APPEALS, THE DECISION OF THE COMMISSION
WAS REVERSED BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT, ONE JUDGE DISSENTING.  92 U.S. APP. D.C. 284, 205
F.2D 706.  WE GRANTED CERTIORARI.  346 U.S. 934, 935. 

THE POWER COMMISSION IS AUTHORIZED BY SEC. 4 OF THE NATURAL GAS ACT
TO REGULATE THE "RATES AND CHARGES MADE, DEMANDED, OR RECEIVED BY ANY
NATURAL-GAS COMPANY FOR OR IN CONNECTION WITH THE TRANSPORTATION OR
SALE OF NATURAL GAS SUBJECT TO THE JURISDICTION OF THE COMMISSION  ...
."  "NATURAL-GAS COMPANY" IS DEFINED BY SEC. 2(6) OF THE ACT TO MEAN "A
PERSON ENGAGED IN THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE
COMMERCE, OR THE SALE IN INTERSTATE COMMERCE OF SUCH GAS FOR RESALE." 
THE JURISDICTION OF THE COMMISSION IS SET FORTH IN SEC. 1(B) AS
FOLLOWS: 

"THE PROVISIONS OF THIS ACT SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

PETITIONERS ADMIT THAT PHILLIPS ENGAGES IN "THE SALE IN INTERSTATE
COMMERCE OF NATURAL GAS FOR RESALE," AS, OF COURSE, THEY MUST. 
INTERSTATE NATURAL GAS CO. V. FEDERAL POWER COMMISSION, 331 U.S. 682,
687-689; CF. MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S. 157,
166-168.  THEY CONTEND, HOWEVER, THAT THE AFFIRMATIVE GRANT OF
JURISDICTION OVER SUCH SALES IN THE FIRST CLAUSE OF SEC. 1(B) IS
LIMITED BY THE NEGATIVE SECOND CLAUSE OF THE SECTION.  IN PARTICULAR,
THE CONTENTION IS MADE THAT THE SALES BY PHILLIPS ARE A PART OF THE
"PRODUCTION OR GATHERING OF NATURAL GAS" TO WHICH THE COMMISSION'S
JURISDICTION EXPRESSLY DOES NOT EXTEND. 

WE DO NOT AGREE.  IN OUR VIEW, THE STATUTORY LANGUAGE, THE PERTINENT
LEGISLATIVE HISTORY, AND THE PAST DECISIONS OF THIS COURT ALL SUPPORT
THE CONCLUSION OF THE COURT OF APPEALS THAT PHILLIPS IS A "NATURAL-GAS
COMPANY" WITHIN THE MEANING OF THAT TERM AS DEFINED IN THE NATURAL GAS
ACT, AND THAT ITS SALES IN INTERSTATE COMMERCE OF NATURAL GAS FOR
RESALE ARE SUBJECT TO THE JURISDICTION OF AND REGULATION BY THE FEDERAL
POWER COMMISSION. 

THE COMMISSION FOUND THAT PHILLIPS' SALES ARE PART OF THE PRODUCTION
AND GATHERING PROCESS, OR ARE "AT LEAST AN EXEMPT INCIDENT THEREOF." 
(FN4)  THIS DETERMINATION APPEARS TO HAVE BEEN BASED PRIMARILY ON THE
COMMISSION'S READING OF THE LEGISLATIVE HISTORY AND ITS INTERPRETATION
OF CERTAIN DECISIONS OF THIS COURT.  ALSO, THERE IS SOME TESTIMONY IN
THE RECORD TO THE EFFECT THAT THE MEANING OF "GATHERING" COMMONLY
ACCEPTED IN THE NATURAL-GAS INDUSTRY COMPREHENDS THE SALES INCIDENT TO
THE PHYSICAL ACTIVITY OF COLLECTING AND PROCESSING THE GAS. 
PETITIONERS CONTEND THAT THE COMMISSION'S FINDING HAS A REASONABLE
BASIS IN LAW AND IS SUPPORTED BY SUBSTANTIAL EVIDENCE OF RECORD AND
THEREFORE SHOULD BE ACCEPTED BY THE COURTS, PARTICULARLY SINCE THE
COMMISSION HAS "CONSISTENTLY" INTERPRETED THE ACT AS NOT CONFERRING
JURISDICTION OVER COMPANIES SUCH AS PHILLIPS.  (FN5)  SEE GRAY V.
POWELL, 314 U.S. 402; LABOR BOARD V. HEARST PUBLICATIONS, INC., 322
U.S. 111.  WE ARE OF THE OPINION, HOWEVER, THAT THE FINDING IS WITHOUT
ADEQUATE BASIS IN LAW, AND THAT PRODUCTION AND GATHERING, IN THE SENSE
THAT THOSE TERMS ARE USED IN SEC. 1(B), END BEFORE THE SALES BY
PHILLIPS OCCUR. 

IN FEDERAL POWER COMMISSION V. PANHANDLE EASTERN PIPE LINE CO., 337
U.S. 498, 505, WE OBSERVED THAT THE "NATURAL AND CLEAR MEANING" OF THE
PHRASE "PRODUCTION OR GATHERING OF NATURAL GAS" IS THAT IT ENCOMPASSES
"THE PRODUCING PROPERTIES AND GATHERING FACILITIES OF A NATURAL-GAS
COMPANY."  SIMILARLY, IN COLORADO INTERSTATE GAS CO. V. FEDERAL POWER
COMMISSION, 324 U.S. 581, 598, WE STATED THAT "TRANSPORTATION AND SALE
DO NOT INCLUDE PRODUCTION OR GATHERING," AND INDICATED THAT THE
"PRODUCTION OR GATHERING" EXEMPTION APPLIES TO THE PHYSICAL ACTIVITIES,
FACILITIES, AND PROPERTIES USED IN THE PRODUCTION AND GATHERING OF
NATURAL GAS.  ID., AT 602-603.  SEE ALSO FEDERAL POWER COMMISSION V.
HOPE NATURAL GAS CO., 320 U.S. 591, 612-615; PEOPLES NATURAL GAS CO. V.
FEDERAL POWER COMMISSION, 75 U.S. APP. D.C. 235, 127 F.2D 153; CF.
UNITED STATES V. PUBLIC UTILITIES COMMISSION, 345 U.S. 295, 307-311. 
(FN6) 

EVEN MORE DIRECTLY IN POINT IS OUR DECISION IN INTERSTATE NATURAL GAS
CO. V. FEDERAL POWER COMMISSION, 331 U.S. 682.  THE INTERSTATE COMPANY
PRODUCED OR PURCHASED NATURAL GAS WHICH IT IN TURN SOLD AND DELIVERED
TO THREE INTERSTATE PIPELINE COMPANIES, ALL THE ACTIVITIES OCCURRING
WITHIN THE SAME STATE.  WE NOTED THAT "EXCEPTIONS TO THE PRIMARY GRANT
OF JURISDICTION IN THE SECTION (1(B)) ARE TO BE STRICTLY CONSTRUED,"
(FN7) ID., AT 690-691, AND HELD THAT SEC. 1(B) CONFERRED JURISDICTION
OVER SUCH SALES ON THE FEDERAL POWER COMMISSION, STATING: 

"PETITIONER ASSERTS  ...  THAT THE SALES TO THE THREE PIPE-LINE
COMPANIES ARE A PART OF THE GATHERING PROCESS AND CONSEQUENTLY NOT
WITHIN THE COMMISSION'S POWER OF REGULATION.  THIS BASIC CONTENTION HAS
GIVEN RISE TO A GREAT MANY SUBSIDIARY QUESTIONS SUCH AS WHETHER THE
SALES WERE MADE FROM PETITIONER'S 'GATHERING' LINES OR FROM
PETITIONER'S 'TRANSMISSION' LINES AND WHETHER THE GATHERING PROCESS
CONTINUED TO THE POINTS OF SALE OR WAS, AS THE COMMISSION FOUND,
COMPLETED AT SOME POINT PRIOR TO SURRENDER OF CUSTODY AND PASSAGE OF
TITLE.  WE HAVE FOUND IT UNNECESSARY TO RESOLVE THOSE ISSUES.  THE GAS
MOVED BY PETITIONER TO THE POINTS OF SALE CONSISTED OF GAS PRODUCED
FROM PETITIONER'S WELLS COMMINGLED WITH THAT PRODUCED AND GATHERED BY
OTHER COMPANIES AND INTRODUCED INTO PETITIONER'S PIPE-LINE SYSTEM
DURING THE COURSE OF THE MOVEMENT.  BY THE TIME THE SALES ARE
CONSUMMATED, NOTHING FURTHER IN THE GATHERING PROCESS REMAINS TO BE
DONE.  WE HAVE HELD THAT THESE SALES ARE IN INTERSTATE COMMERCE.  IT
CANNOT BE DOUBTED THAT THEIR REGULATION IS PREDOMINANTLY A MATTER OF
NATIONAL, AS CONTRASTED TO LOCAL CONCERN.  ALL THE GAS SOLD IN THESE
TRANSACTIONS IS DESTINED FOR CONSUMPTION IN STATES OTHER THAN
LOUISIANA.  UNREASONABLE CHARGES EXACTED AT THIS STAGE OF THE
INTERSTATE MOVEMENT BECOME PERPETUATED IN LARGE PART IN FIXED ITEMS OF
COSTS WHICH MUST BE COVERED BY RATES CHARGED SUBSEQUENT PURCHASERS OF
THE GAS, INCLUDING THE ULTIMATE CONSUMER.  IT WAS TO AVOID SUCH
SITUATIONS THAT THE NATURAL GAS ACT WAS PASSED."  ID., AT 692-693. 

PETITIONERS ATTEMPT TO DISTINGUISH THE INTERSTATE CASE ON THE GROUNDS
THAT THE INTERSTATE COMPANY TRANSPORTED THE GAS IN ITS PIPELINES AFTER
COMPLETION OF GATHERING AND BEFORE SALE, AND THAT THE INTERSTATE
COMPANY WAS AFFILIATED WITH AN INTERSTATE PIPELINE COMPANY AND
THEREFORE SUBJECT TO COMMISSION JURISDICTION IN ANY EVENT.  THIS COURT,
HOWEVER, REFUSED TO RELY ON SUCH REFINEMENTS (FN8) AND INSTEAD BASED
ITS DECISION IN INTERSTATE ON THE BROADER GROUND THAT SALES IN
INTERSTATE COMMERCE FOR RESALE BY PRODUCERS TO INTERSTATE PIPELINE
COMPANIES DO NOT COME WITHIN THE "PRODUCTION OR GATHERING" EXEMPTION. 

THE INTERSTATE CASE IS ALSO SAID TO BE DISTINGUISHABLE IN THAT IT DID
NOT INVOLVE AN ASSERTED CONFLICT WITH STATE REGULATION, AND FEDERAL
CONTROL WAS NOT OPPOSED BY THE STATE AUTHORITIES, WHILE IN THE INSTANT
CASES THERE ARE SAID TO BE CONFLICTING STATE REGULATIONS, AND FEDERAL
JURISDICTION IS VIGOROUSLY OPPOSED BY THE PRODUCING STATES.  THE SHORT
ANSWER TO THIS CONTENTION IS THAT THE JURISDICTION OF THE FEDERAL POWER
COMMISSION WAS NOT INTENDED TO VARY FROM STATE TO STATE, DEPENDING UPON
THE DEGREE OF STATE REGULATION AND OF STATE OPPOSITION TO FEDERAL
CONTROL.  WE EXPRESSLY REJECTED ANY IMPLICATION TO THE CONTRARY, IN THE
INTERSTATE CASE.  331 U.S., AT 691-692.  SEE FEDERAL POWER COMMISSION
V. HOPE NATURAL GAS CO., SUPRA, AT 607-615. 

THE CASES DISCUSSED ABOVE SUPPLY A READY ANSWER TO THE DETERMINATION
OF THE COMMISSION AND ALSO TO PETITIONERS' SUGGESTION THAT "PRODUCTION
OR GATHERING" SHOULD BE CONSTRUED TO MEAN THE "BUSINESS" OF PRODUCTION
AND GATHERING, WITH THE SALE OF THE PRODUCT CONSIDERED AS AN INTEGRAL
PART OF SUCH "BUSINESS."  WE SEE NO REASON TO DEPART FROM OUR PREVIOUS
DECISIONS, ESPECIALLY SINCE THEY ARE CONSISTENT WITH THE LANGUAGE AND
LEGISLATIVE HISTORY OF THE NATURAL GAS ACT. 

IN GENERAL, PETITIONERS CONTEND THAT CONGRESS INTENDED TO REGULATE
ONLY THE INTERSTATE PIPELINE COMPANIES SINCE CERTAIN ALLEGED EXCESSES
OF THOSE COMPANIES WERE THE EVIL WHICH BROUGHT ABOUT THE LEGISLATION. 
IF SUCH WERE THE CASE, WE HAVE DIFFICULTY IN PERCEIVING WHY THE
COMMISSION'S JURISDICTION OVER THE TRANSPORTATION OR SALE FOR RESALE IN
INTERSTATE COMMERCE OF NATURAL GAS IS GRANTED IN THE DISJUNCTIVE.  IT
WOULD HAVE SUFFICED TO GIVE THE COMMISSION JURISDICTION OVER ONLY THOSE
NATURAL-GAS COMPANIES THAT ENGAGE IN "TRANSPORTATION" OR
"TRANSPORTATION AND SALE FOR RESALE" IN INTERSTATE COMMERCE, IF ONLY
INTERSTATE PIPELINE COMPANIES WERE INTENDED TO BE COVERED.  (FN9) SEE
FEDERAL POWER COMMISSION V. EAST OHIO GAS CO., 338 U.S. 464, 468. 

RATHER, WE BELIEVE THAT THE LEGISLATIVE HISTORY INDICATES A
CONGRESSIONAL INTENT TO GIVE THE COMMISSION JURISDICTION OVER THE RATES
OF ALL WHOLESALES OF NATURAL GAS IN INTERSTATE COMMERCE, WHETHER BY A
PIPELINE COMPANY OR NOT AND WHETHER OCCURRING BEFORE, DURING, OR AFTER
TRANSMISSION BY AN INTERSTATE PIPELINE COMPANY.  (FN10)  THERE CAN BE
NO DISPUTE THAT THE OVERRIDING CONGRESSIONAL PURPOSE WAS TO PLUG THE
"GAP" IN REGULATION OF NATURAL-GAS COMPANIES RESULTING FROM JUDICIAL
DECISIONS PROHIBITING, ON FEDERAL CONSTITUTIONAL GROUNDS, STATE
REGULATION OF MANY OF THE INTERSTATE COMMERCE ASPECTS OF THE NATURAL
GAS BUSINESS.  (FN11)  A SIGNIFICANT PART OF THIS GAP WAS CREATED BY
CASES (FN12) HOLDING THAT "THE REGULATION OF WHOLESALE RATES OF GAS AND
ELECTRICAL ENERGY MOVING IN INTERSTATE COMMERCE IS BEYOND THE
CONSTITUTIONAL POWERS OF THE STATES."  INTERSTATE NATURAL GAS CO. V.
FEDERAL POWER COMMISSION, SUPRA, AT 689.  THE COMMITTEE REPORTS ON THE
BILL THAT BECAME THE NATURAL GAS ACT SPECIFICALLY REFERRED TO TWO OF
THESE CASES AND TO THE NECESSITY OF FEDERAL REGULATION TO OCCUPY THE
HIATUS CREATED BY THEM.  (FN13)  THUS, WE ARE SATISFIED THAT CONGRESS
SOUGHT TO REGULATE WHOLESALES OF NATURAL GAS OCCURRING AT BOTH ENDS OF
THE INTERSTATE TRANSMISSION SYSTEMS.    PETITIONERS CITE OUR RECENT
DECISIONS IN CITIES SERVICE GAS CO. V. PEERLESS OIL & GAS CO., 340 U.S.
179, AND PHILLIPS PETROLEUM CO. V. OKLAHOMA, 340 U.S. 190, AS AUTHORITY
FOR THE PROPOSITION THAT THE STATES MAY REGULATE THE SALES IN QUESTION
HERE AND, HENCE, THAT SUCH SALES ARE NOT WITHIN THE GAP WHICH THE
NATURAL GAS ACT WAS INTENDED TO FILL.  THOSE CASES UPHELD AS
CONSTITUTIONAL STATE MINIMUM PRICE ORDERS, JUSTIFIED AS CONSERVATION
MEASURES, APPLYING TO SALES OF NATURAL GAS IN INTERSTATE COMMERCE.  BUT
IT IS WELL SETTLED THAT THE GAP REFERRED TO IS THAT THOUGHT TO EXIST AT
THE TIME THE NATURAL GAS ACT WAS PASSED, AND THE JURISDICTION OF THE
COMMISSION IS NOT AFFECTED BY SUBSEQUENT DECISIONS OF THIS COURT WHICH
HAVE SOMEWHAT LOOSENED THE CONSTITUTIONAL RESTRICTIONS ON STATE
ACTIVITIES AFFECTING INTERSTATE COMMERCE, IN THE ABSENCE OF CONFLICTING
FEDERAL REGULATION.  ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS
PUBLIC SERVICE CO., 314 U.S. 498, 508; FEDERAL POWER COMMISSION V. EAST
OHIO GAS CO., SUPRA, AT 472.  THE FEDERAL POWER COMMISSION DID NOT
PARTICIPATE IN THE CITIES SERVICE AND PHILLIPS PETROLEUM CASES, THE
APPELLANTS THERE DID NOT ASSERT A POSSIBLE CONFLICT WITH FEDERAL
AUTHORITY UNDER THE NATURAL GAS ACT, AND CONSEQUENTLY WE EXPRESSLY
REFUSED TO CONSIDER AT THAT TIME "WHETHER THE GAS ACT AUTHORIZES THE
POWER COMMISSION TO SET FIELD PRICES ON SALES BY INDEPENDENT PRODUCERS,
OR LEAVES THAT FUNCTION TO THE STATES  ...  ."  340 U.S., AT 188-189. 

REGULATION OF THE SALES IN INTERSTATE COMMERCE FOR RESALE MADE BY A
SO-CALLED INDEPENDENT NATURAL-GAS PRODUCER IS NOT ESSENTIALLY DIFFERENT
FROM REGULATION OF SUCH SALES WHEN MADE BY AN AFFILIATE OF AN
INTERSTATE PIPELINE COMPANY.  IN BOTH CASES, THE RATES CHARGED MAY HAVE
A DIRECT AND SUBSTANTIAL EFFECT ON THE PRICE PAID BY THE ULTIMATE
CONSUMERS.  PROTECTION OF CONSUMERS AGAINST EXPLOITATION AT THE HANDS
OF NATURAL-GAS COMPANIES WAS THE PRIMARY AIM OF THE NATURAL GAS ACT. 
FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO., SUPRA, AT 610. 
ATTEMPTS TO WEAKEN THIS PROTECTION BY AMENDATORY LEGISLATION EXEMPTING
INDEPENDENT NATURAL-GAS PRODUCERS FROM FEDERAL REGULATION HAVE
REPEATEDLY FAILED, (FN14) AND WE REFUSE TO ACHIEVE THE SAME RESULT BY A
STRAINED INTERPRETATION OF THE EXISTING STATUTORY LANGUAGE. 

THE JUDGMENT IS AFFIRMED. 

FN1  HEREINAFTER REFERRED TO AS PHILLIPS. 

FN2  52 STAT. 821, AS AMENDED, 15 U.S.C. SEC. 717 ET SEQ. 

FN3  10 F.P.C. 246.  ONE COMMISSIONER CONCURRED IN THE DECISION AND
ONE DISSENTED. 

FN4  10 F.P.C. 246, 278. 

FN5  THE CONSISTENCY OF THE COMMISSION IN THIS REGARD MAY BE
QUESTIONED.  COMPARE: COLUMBIAN FUEL CORP., 2 F.P.C. 200, WITH
INTERSTATE NATURAL GAS CO., 3 F.P.C. 416; BRIEF FOR FEDERAL POWER
COMMISSION, INTERSTATE NATURAL GAS CO. V. FEDERAL POWER COMMISSION, 156
F.2D 949, WITH BRIEF FOR FEDERAL POWER COMMISSION, INTERSTATE NATURAL
GAS CO. V. FEDERAL POWER COMMISSION, 331 U.S. 682; FEDERAL POWER
COMMISSION ORDER NO. 139, 12 FED.  REG. 5585, WITH FEDERAL POWER
COMMISSION ORDER NO. 154, 15 FED. REG. 4633.  SEE SCANLAN,
ADMINISTRATIVE ABNEGATION IN THE FACE OF CONGRESSIONAL COERCION:  THE
INTERSTATE NATURAL GAS COMPANY AFFAIR, 23 NOTRE DAME LAW.  173; NOTE,
59 YALE L.J. 1468, 1479-1484.  AND, FOR THAT MATTER, EVEN CONSISTENT
ERROR IS STILL ERROR. 

FN6  REFERRING TO THE TAKING OF NATURAL GAS BY PURCHASING INTERSTATE
PIPELINE COMPANIES AT THE OUTLET OF PROCESSING PLANTS, WE RECENTLY
OBSERVED THAT THE PIPELINE COMPANIES OBVIOUSLY "ARE NOT ENGAGED IN
'GATHERING GAS' WITHIN THE MEANING OF THAT TERM IN ITS ORDINARY USAGE
...  ."  MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S. 157,
164. 

FN7  THE COMMITTEE REPORTS ON THE BILL ENACTED AS THE NATURAL GAS
ACT, H.R. 6586, 75TH CONG., 1ST SESS., REVEAL THAT A CONSTRUCTION OF
THE "PRODUCTION OR GATHERING" EXEMPTION WHICH WOULD SUBSTANTIALLY LIMIT
THE AFFIRMATIVE GRANT OF JURISDICTION TO THE COMMISSION WAS NOT
CONTEMPLATED.  AFTER QUOTING THE EXEMPTIVE CLAUSE OF SEC. 1(B), THE
HOUSE REPORT STATES THAT: 

"THE QUOTED WORDS ARE NOT ACTUALLY NECESSARY, AS THE MATTERS
SPECIFIED THEREIN COULD NOT BE SAID FAIRLY TO BE COVERED BY THE
LANGUAGE AFFIRMATIVELY STATING THE JURISDICTION OF THE COMMISSION, BUT
SIMILAR LANGUAGE WAS IN PREVIOUS BILLS, AND, RATHER THAN INVITE THE
CONTENTION, HOWEVER UNFOUNDED, THAT THE ELIMINATION OF THE NEGATIVE
LANGUAGE WOULD BROADEN THE SCOPE OF THE ACT, THE COMMITTEE HAS INCLUDED
IT IN THIS BILL."  H.R. REP. NO. 709, 75TH CONG., 1ST SESS. 3. 

THE SENATE REPORT ADOPTED AND REPRINTED THE HOUSE REPORT ON THE
BILL.  S. REP. NO. 1162, 75TH CONG., 1ST SESS. 

FN8  DESPITE THE FACT THAT THEY WERE URGED BY THE COMMISSION AS A
BASIS FOR DECISION.  BRIEF FOR FEDERAL POWER COMMISSION, INTERSTATE
NATURAL GAS CO. V. FEDERAL POWER COMMISSION, 331 U.S. 682. 

FN9  JUST SUCH WORDING WAS SUGGESTED TO AND REJECTED BY THE HOUSE
COMMITTEE CONSIDERING ENACTMENT OF THE NATURAL GAS ACT, BY THE CHAIRMAN
OF THE STATE OF NEW YORK DEPARTMENT OF PUBLIC SERVICE, PUBLIC SERVICE
COMMISSION.  HEARINGS BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.R. 4008, 75TH CONG., 1ST SESS. 146-147. 

AN EARLIER BILL, H.R. 11662, 74TH CONG., 2D SESS., WOULD HAVE LIMITED
THE JURISDICTION OF THE POWER COMMISSION TO "THE TRANSPORTATION OF
NATURAL GAS IN HIGH-PRESSURE MAINS IN INTERSTATE COMMERCE AND TO
NATURAL-GAS COMPANIES ENGAGED IN SUCH TRANSPORTATION  ...  ."  MUCH OF
THE LEGISLATIVE HISTORY ADVANCED IN SUPPORT OF PETITIONERS' POSITION
WAS DEVELOPED IN CONNECTION WITH THIS BILL, INCLUDING THE TESTIMONY OF
DOZIER A. DEVANE, SOLICITOR OF THE FEDERAL POWER COMMISSION.  BECAUSE
OF THE MUCH DIFFERENT JURISDICTIONAL PROVISION OF H.R. 11662, SUCH
TESTIMONY HAS LITTLE RELEVANCE HERE. 

FN10  THE BILL ON WHICH WERE HELD THE HEARINGS LEADING TO THE PASSAGE
OF THE NATURAL GAS ACT, H.R. 4008, 75TH CONG., 1ST SESS., AS INTRODUCED
PROVIDED, IN SEC. 1(B), FOR COMMISSION JURISDICTION OVER THE SALE OF
NATURAL GAS IN INTERSTATE COMMERCE "FOR RESALE TO THE PUBLIC." 
SIMILARLY, "NATURAL-GAS COMPANY" WAS DEFINED, IN SEC. 2(5), AS
INCLUDING A PERSON ENGAGED IN THE SALE OF NATURAL GAS IN INTERSTATE
COMMERCE "FOR RESALE TO THE PUBLIC."  THE GENERAL SOLICITOR OF THE
NATURAL ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS SUGGESTED
THAT THE LANGUAGE BE CHANGED IN A MANNER ALMOST IDENTICAL TO THAT
CONTAINED IN THE NATURAL GAS ACT.  REFERRING TO THE PROPOSED CHANGES,
HE COMMENTED THAT: 

"ANOTHER IS DESIGNED TO MAKE CERTAIN THAT THE BILL WILL APPLY TO ALL
INTERCOMPANY SALES OF NATURAL GAS AT WHOLESALE, EVEN THOUGH THE SALE BE
FROM ONE COMPANY TO ANOTHER COMPANY WHICH WILL RESELL TO ANOTHER
CORPORATION BEFORE THE GAS IS FINALLY SOLD TO THE PUBLIC."  HEARINGS
BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 4008,
75TH CONG., 1ST SESS. 22. 

SEE ALSO ID., AT 141-143. 

FN11  FEDERAL POWER COMMISSION V. EAST OHIO GAS CO., 338 U.S. 464,
472-473; FEDERAL POWER COMMISSION V. PANHANDLE EASTERN PIPE LINE CO.,
337 U.S. 498, 502-504; PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC
SERVICE COMMISSION, 332 U.S. 507, 514-521; INTERSTATE NATURAL GAS CO.
V. FEDERAL POWER COMMISSION, 331 U.S. 682, 689-693; COLORADO INTERSTATE
GAS CO. V. FEDERAL POWER COMMISSION, 324 U.S. 581, 599-600; FEDERAL
POWER COMMISSION V. HOPE NATURAL GAS CO., 320 U.S. 591, 609-610;
ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC SERVICE CO., 314
U.S. 498, 506-508. 

FN12  MISSOURI V. KANSAS NATURAL GAS CO., 265 U.S. 298; PUBLIC
UTILITIES COMMISSION V. ATTLEBORO STEAM & ELECTRIC CO., 273 U.S. 83;
STATE CORPORATION COMMISSION V. WICHITA GAS CO., 290 U.S. 561.  CF.
DAHNKE-WALKER MILLING CO. V. BONDURANT, 257 U.S. 282; LEMKE V. FARMERS
GRAIN CO., 258 U.S. 50; SHAFER V. FARMERS GRAIN CO., 268 U.S. 189.  AND
SEE JERSEY CENTRAL POWER & LIGHT CO. V. FEDERAL POWER COMMISSION, 319
U.S. 61, 69. 

FN13  "THE STATES HAVE, OF COURSE, FOR MANY YEARS REGULATED SALES OF
NATURAL GAS TO CONSUMERS IN INTRASTATE TRANSACTIONS.  THE STATES HAVE
ALSO BEEN ABLE TO REGULATE SALES TO CONSUMERS EVEN THOUGH SUCH SALES
ARE IN INTERSTATE COMMERCE, SUCH SALES BEING CONSIDERED LOCAL IN
CHARACTER AND IN THE ABSENCE OF CONGRESSIONAL PROHIBITION SUBJECT TO
STATE REGULATION  ...  .  THERE IS NO INTENTION IN ENACTING THE PRESENT
LEGISLATION TO DISTURB THE STATES IN THEIR EXERCISE OF SUCH
JURISDICTION.  HOWEVER, IN THE CASE OF SALES FOR RESALE, OR SO-CALLED
WHOLESALE SALES, IN INTERSTATE COMMERCE (FOR EXAMPLE, SALES BY
PRODUCING COMPANIES TO DISTRIBUTING COMPANIES) THE LEGAL SITUATION IS
DIFFERENT.  SUCH TRANSACTIONS HAVE BEEN CONSIDERED TO BE NOT LOCAL IN
CHARACTER AND, EVEN IN THE ABSENCE OF CONGRESSIONAL ACTION, NOT SUBJECT
TO STATE REGULATION.  (SEE MISSOURI V. KANSAS GAS CO. (1924), 265 U.S.
298, AND PUBLIC SERVICE COMMISSION V. ATTLEBORO STEAM & ELECTRIC CO.
(1927) 273 U.S. 83.)  THE BASIC PURPOSE OF THE PRESENT LEGISLATION IS
TO OCCUPY THIS FIELD IN WHICH THE SUPREME COURT HAS HELD THAT THE
STATES MAY NOT ACT."  H.R. REP. NO. 709, 75TH CONG., 1ST SESS. 1-2; S.
REP.  NO. 1162, 75TH CONG., 1ST SESS. 1-2. 

FN14  AMONG THE BILLS INTRODUCED IN RECENT CONGRESSES TO RESTRICT THE
EXISTING JURISDICTION OF THE FEDERAL POWER COMMISSION OVER NATURAL-GAS
PRODUCERS ARE:  H.R. 4051, 80TH CONG., 1ST SESS.; H.R. 4099, 80TH
CONG., 1ST SESS.; H.R. 1758, 81ST CONG., 1ST SESS.; AND S. 1498, 81ST
CONG., 1ST SESS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

WHILE I JOIN THE OPINION OF THE COURT, ONE CONSIDERATION LEADING TO
THE COURT'S CONCLUSION IS FOR ME SO DECISIVE THAT I DEEM IT APPROPRIATE
TO GIVE IT EMPHASIS. 

AN AUTHORITATIVE GLOSS.  WE MUST CONSTRUE IT AS THOUGH CONGRESS HAD, IN
WORDS, ADDED TO THE PRESENT TEXT OF SEC. 1(B) SOME SUCH LANGUAGE AS THE
FOLLOWING: 

"HOWEVER, SINCE SALES FOR RESALE, OR SO-CALLED 'WHOLESALE SALES,' IN
INTERSTATE COMMERCE ARE NOT LOCAL IN CHARACTER AND ARE CONSTITUTIONALLY
NOT SUBJECT TO STATE REGULATION, SEE MISSOURI V. KANSAS GAS CO., 265
U.S. 298, AND PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM & ELECTRIC
CO., 273 U.S. 83, THE BASIC PURPOSE OF THE LEGISLATION IS TO OCCUPY
THIS FIELD IN WHICH THE STATES MAY NOT ACT." 

THE SECTION MUST BE READ WITH SUCH AN INTERPOLATION BECAUSE THE
COMMITTEES OF CONGRESS WHICH WERE RESPONSIBLE FOR THE LEGISLATION SAID
SPECIFICALLY THAT THE NATURAL GAS ACT WAS DESIGNED TO COVER THE
SITUATIONS WHICH THE TWO CITED CASES HELD TO BE OUTSIDE THE COMPETENCE
OF STATE REGULATION.  H.R. REP. NO. 709, 75TH CONG., 1ST SESS. 1-2; S.
REP. NO. 1162, 75TH CONG., 1ST SESS. 1-2.* 

*THE STATES HAVE, OF COURSE, FOR MANY YEARS REGULATED SALES OF
NATURAL GAS TO CONSUMERS IN INTRASTATE TRANSACTIONS.  THE STATES HAVE
ALSO BEEN ABLE TO REGULATE SALES TO CONSUMERS EVEN THOUGH SUCH SALES
ARE IN INTERSTATE COMMERCE, SUCH SALES BEING CONSIDERED LOCAL IN
CHARACTER AND IN THE ABSENCE OF CONGRESSIONAL PROHIBITION SUBJECT TO
STATE REGULATION.  (SEE PENNSYLVANIA GAS CO. V. PUBLIC SERVICE
COMMISSION (1920), 252 U.S. 23.)  THERE IS NO INTENTION IN ENACTING THE
PRESENT LEGISLATION TO DISTURB THE STATES IN THEIR EXERCISE OF SUCH
JURISDICTION.  HOWEVER, IN THE CASE OF SALES FOR RESALE, OR SO-CALLED
WHOLESALE SALES, IN INTERSTATE COMMERCE (FOR EXAMPLE, SALES BY
PRODUCING COMPANIES TO DISTRIBUTING COMPANIES) THE LEGAL SITUATION IS
DIFFERENT.  SUCH TRANSACTIONS HAVE BEEN CONSIDERED TO BE NOT LOCAL IN
CHARACTER AND, EVEN IN THE ABSENCE OF CONGRESSIONAL ACTION, NOT SUBJECT
TO STATE REGULATION.  (SEE MISSOURI V. KANSAS GAS CO. (1924), 265 U.S.
298, AND PUBLIC SERVICE COMMISSION V. ATTLEBORO STEAM & ELECTRIC CO.
(1927) 273 U.S. 83.)  THE BASIC PURPOSE OF THE PRESENT LEGISLATION IS
TO OCCUPY THIS FIELD IN WHICH THE SUPREME COURT HAS HELD THAT THE
STATES MAY NOT ACT."  H.R.  REP. NO. 709, 75TH CONG., 1ST SESS. 1-2. 

TO BE SURE, THE KANSAS GAS CASE EXCLUDED THE BUSINESS OF PIPING GAS
BY A SUPPLY COMPANY IN ONE STATE TO DISTRIBUTING COMPANIES IN ANOTHER;
AND THE ATTLEBORO CASE INVOLVED THE TRANSMISSION OF ELECTRIC CURRENT BY
A PRODUCING COMPANY WHICH TOOK IT FROM ONE STATE TO THE BOUNDARY OF
ANOTHER STATE AND THERE SOLD IT TO A DISTRIBUTING COMPANY FOR RESALE IN
THE OTHER STATE.  IN THIS CASE, THE SALE BY PHILLIPS WAS MADE IN TEXAS
TO INTERSTATE PIPELINE TRANSMISSION COMPANIES WHICH TRANSPORTED THE GAS
FOR RESALE TO DISTRIBUTING COMPANIES AND CONSUMERS IN OTHER STATES. 
BUT THIS FACT - THAT PHILLIPS ITSELF DID NOT PIPE THE GAS TO THE STATE
BOUNDARY OR DIRECTLY INTO ANOTHER STATE - DOES NOT IN THE SLIGHTEST
ALTER THE CONSTITUTIONAL APPLICABILITY OF THE ATTLEBORO DOCTRINE TO THE
SITUATION BEFORE US.  THE FACT THAT THE CONTINUOUS TRANSMISSION IS NOT
BY FACILITIES OF PHILLIPS BUT BY THE FACILITIES OF PHILLIPS CONNECTING
WITH PIPELINES TRANSMITTING GAS INTO OTHER STATES DOES NOT CHANGE THE
INTERSTATE CHARACTER OF THE TRANSACTION.  FOR THAT REASON, THE DECISION
IN ATTLEBORO, 273 U.S., AT 86, RELYING ON PEOPLES GAS CO. V. PUBLIC
SERVICE COMMISSION, 270 U.S. 550, BARRED STATE REGULATION. 

IT MAY WELL BE THAT IF THE PROBLEM IN THE ATTLEBORO CASE CAME BEFORE
THE COURT TODAY, THE CONSTITUTIONAL DOCTRINE THERE LAID DOWN WOULD NOT
BE FOUND COMPELLING.  THIS IS IMMATERIAL.  CONGRESS DID NOT LEAVE IT TO
THE DETERMINATION OF THIS COURT WHETHER AN ATTLEBORO SITUATION IS
SUBJECT TO STATE REGULATION.  IT WROTE THE DOCTRINE OF THE ATTLEBORO
CASE INTO THE NATURAL GAS ACT AND SAID IN EFFECT THAT AN ATTLEBORO
SITUATION WAS TO BE TAKEN OVER BY FEDERAL REGULATION AND WAS NOT TO BE
LEFT TO THE FLUCTUATION OF ADJUDICATIONS UNDER THE COMMERCE CLAUSE. 
MR. JUSTICE DOUGLAS, DISSENTING. 

THE QUESTION IS WHETHER SALES OF NATURAL GAS BY AN INDEPENDENT
PRODUCER AT THE MOUTH OF AN INTERSTATE PIPELINE ARE SUBJECT TO
REGULATION BY THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT OF
1938.  THIS IS A QUESTION THE COURT HAS NEVER DECIDED.  IT IS INDEED
ONE ON WHICH WE EXPRESSLY RESERVED DECISION IN INTERSTATE NATURAL GAS
CO. V. FEDERAL POWER COMMISSION, 331 U.S. 682, 690, N. 18. 

THERE IS MUCH TO BE SAID FROM THE NATIONAL POINT OF VIEW FOR
REGULATING SALES AT BOTH ENDS OF THESE INTERSTATE PIPELINES.  THE POWER
OF CONGRESS TO DO SO IS UNQUESTIONED.  WHETHER IT DID SO BY THE NATURAL
GAS ACT OF 1938 IS A POLITICAL AND LEGAL CONTROVERSY THAT HAS RAGED IN
THE COMMISSION AND IN THE CONGRESS FOR SOME YEARS.  THE QUESTION IS NOT
FREE FROM DOUBTS.  FOR WHILE SEC. 1(B) OF THE ACT MAKES THE REGULATORY
PROVISIONS APPLICABLE "TO THE SALE IN INTERSTATE COMMERCE OF NATURAL
GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION," IT ALSO MAKES THEM
INAPPLICABLE "TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

THE SALE BY THIS INDEPENDENT PRODUCER IS A "SALE IN INTERSTATE
COMMERCE ...  FOR RESALE."  IT IS ALSO AN INTEGRAL PART OF "THE
PRODUCTION OR GATHERING OF NATURAL GAS," AS MR. JUSTICE CLARK MAKES
CLEAR IN HIS OPINION, FOR IT IS THE END PHASE OF THE PRODUCING AND
GATHERING PROCESS.  SO WE MUST MAKE A CHOICE; AND THE CHOICE IS NOT AN
EASY ONE. 

THE LEGISLATIVE HISTORY IS NOT HELPFUL.  CONGRESS WAS CONCERNED WITH
INTERSTATE PIPELINES, NOT WITH INDEPENDENT PRODUCERS, AS THE THOUGHTFUL
COMMENT IN 59 YALE L.J. 1468 POINTS OUT.  IF ONE CAN JUDGE BY THE
REPORTS OF THE FEDERAL TRADE COMMISSION THAT PRECEDED THE ACT (S. DOC.
NO. 92, PT. 84-A, 70TH CONG., 1ST SESS.), AND THE HEARINGS AND DEBATES
IN CONGRESS ON THE BILLS THAT EVOLVED INTO THE ACT, LITTLE OR NO
CONSIDERATION WAS GIVEN TO THE NEED OF REGULATING THE SALES BY
INDEPENDENT PRODUCERS TO THE PIPELINES.  THE GAP TO BE FILLED WAS THAT
EXISTING BEFORE THE PIPELINES WERE BROUGHT UNDER REGULATION - SALES TO
DISTRIBUTORS ALONG THE PIPELINES, AS THE OPINION OF MR. JUSTICE CLARK
DEMONSTRATES. 

THAT WAS THE VIEW OF THE COMMISSION IN A DECISION THAT FOLLOWED ON
THE HEELS OF THE ACT.  COLUMBIAN FUEL CORP., 2 F.P.C. 200, 207.  THAT
DECISION EXEMPTED FROM REGULATION AN INDEPENDENT PRODUCER TO WHOM
PHILLIPS IS IN ALL MATERIAL RESPECTS COMPARABLE.  IT WAS A DECISION
MADE BY MEN INTIMATELY FAMILIAR WITH THE BACKGROUND AND HISTORY OF THE
ACT - LELAND OLDS, BASIL MANLY, CLAUDE L. DRAPER, AND CLYDE L. SEAVEY. 
ONE COMMISSIONER, JOHN W. SCOTT, DISSENTED.  THAT CONSTRUCTION OF THE
ACT BY THE COMMISSION HAS PERSISTED FROM THAT TIME (SEE BILLINGS GAS. 
CO., 2 F.P.C. 288; THE FIN-KER OIL & GAS PRODUCTION CO., 6 F.P.C. 92;
TENNESSEE GAS & TRANSMISSION CO., 6 F.P.C. 98) DOWN TO ITS DECISION IN
THE PRESENT CASE.  10 F.P.C. 246. 

THAT CONSTRUCTION BY THE COMMISSION, ESPECIALLY SINCE IT WAS
CONTEMPORANEOUS (UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S.
534, 539) AND LONG CONTINUED (FEDERAL POWER COMMISSION V. PANHANDLE
EASTERN PIPE LINE CO., 337 U.S. 498, 513), IS ENTITLED TO GREAT
WEIGHT.  OTHER OBTUSE QUESTIONS NO LESS LEGAL IN CHARACTER THAN THE
TERMS "PRODUCTION OR GATHERING" OF GAS HAVE BEEN ENTRUSTED TO THE
ADMINISTRATIVE AGENCY CHARGED WITH THE REGULATION.  SEE SHIELDS V. UTAH
IDAHO CENTRAL R. CO., 305 U.S. 177; SUNSHINE ANTHRACITE COAL CO. V.
ADKINS, 310 U.S. 381; GRAY V. POWELL, 314 U.S. 402. 

THERE ARE PRACTICAL CONSIDERATIONS WHICH BUTTRESS THAT POSITION AND
LEAD ME TO CONCLUDE THAT WE SHOULD NOT REVERSE THE COMMISSION IN THE
PRESENT CASE.  IF PHILLIPS' SALES CAN BE REGULATED, THEN THE COMMISSION
CAN SET A RATE BASE FOR PHILLIPS.  A RATE BASE FOR PHILLIPS MUST OF
NECESSITY INCLUDE ALL OF PHILLIPS' PRODUCING AND GATHERING PROPERTIES;
AND SUPERVISION OVER ITS OPERATING EXPENSES NECESSARILY INCLUDES
SUPERVISION OVER ITS PRODUCING AND GATHERING EXPENSES.  WE HELD IN
COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMMISSION, 324 U.S. 581,
THAT THE COMMISSION'S CONTROL EXTENDED THAT FAR IN THE CASE OF AN
INTERSTATE PIPELINE COMPANY WHICH OWNED PRODUCING AND GATHERING
PROPERTIES.  AND SO IT HAD TO BE, IF REGULATION OF THE PIPELINES THAT
OWNED THEIR OWN GAS SUPPLIES WAS TO BE EFFECTIVE.  BUT AN UNDERSTANDING
OF WHAT REGULATION ENTAILS SHOULD LEAD TO A DIFFERENT RESULT IN THIS
CASE.  THE FASTENING OF RATE REGULATION ON THIS INDEPENDENT PRODUCER
BRINGS "THE PRODUCTION OR GATHERING OF NATURAL GAS" UNDER EFFECTIVE
FEDERAL CONTROL, IN SPITE OF THE FACT THAT CONGRESS HAS MADE THAT PHASE
OF THE NATURAL GAS BUSINESS EXEMPT FROM REGULATION.  THE EFFECT IS
CERTAIN TO BE PROFOUND.  THE PRICE AT WHICH THE INDEPENDENT PRODUCER
CAN SELL HIS GAS DETERMINES THE PRICE HE IS ABLE OR WILLING TO PAY FOR
IT (IF HE BUYS FROM OTHER WELLS).  THE SALES PRICE DETERMINES HIS
PROFITS.  AND HIS PROFITS AND THE PROFITS OF ALL THE OTHER GATHERERS,
WHOSE GAS MOVES INTO THE INTERSTATE PIPELINES, HAVE PROFOUND EFFECTS ON
THE RATE OF PRODUCTION, THE METHODS OF PRODUCTION, THE OLD WELLS THAT
ARE CONTINUED IN PRODUCTION, THE NEW ONES EXPLORED, ETC.  REGULATING
THE PRICE AT WHICH THE INDEPENDENT PRODUCER CAN SELL HIS GAS REGULATES
HIS BUSINESS IN THE MOST VITAL WAY ANY BUSINESS CAN BE REGULATED.  THAT
REGULATION LARGELY NULLIFIES THE EXEMPTION GRANTED BY CONGRESS. 

THERE IS MUCH TO BE SAID IN TERMS OF POLICY FOR THE POSITION OF
COMMISSIONER SCOTT, WHO DISSENTED THE FIRST TIME THE COMMISSION RULED
IT HAD NO JURISDICTION OVER THESE SALES.  BUT THE HISTORY AND LANGUAGE
OF THE ACT ARE AGAINST IT.  IF THAT GROUND IS TO BE TAKEN, THE BATTLE
SHOULD BE WON IN CONGRESS, NOT HERE.  REGULATION OF THE BUSINESS OF
PRODUCING AND GATHERING NATURAL GAS INVOLVES CONSIDERATIONS OF WHICH WE
KNOW LITTLE AND WITH WHICH WE ARE NOT COMPETENT TO DEAL. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BURTON CONCURS, DISSENTING. 

PERHAPS CONGRESS SHOULD HAVE INCLUDED CONTROL OVER THE PRODUCTION AND
GATHERING OF NATURAL GAS AMONG THE POWERS IT GAVE THE FEDERAL POWER
COMMISSION IN THE NATURAL GAS ACT, BUT THIS CONGRESS DID NOT DO.  ON
THE CONTRARY, CONGRESS PROVIDED THAT THE ACT "SHALL NOT APPLY  ...  TO
THE PRODUCTION OR GATHERING OF NATURAL GAS."  LANGUAGE COULD NOT
EXPRESS A CLEARER COMMAND, BUT THE MAJORITY RENDERS THIS LANGUAGE
ALMOST ENTIRELY NUGATORY BY HOLDING THAT THE RATES CHARGED BY A WHOLLY
INDEPENDENT PRODUCER AND GATHERER MAY BE REGULATED BY THE FEDERAL POWER
COMMISSION.  NOR DOES THE COURT STOP THERE, FOR IN THE SWEEP OF THE
OPINION "THE RATES OF ALL WHOLESALES OF NATURAL GAS IN INTERSTATE
COMMERCE, WHETHER BY A PIPELINE COMPANY OR NOT AND WHETHER OCCURING
BEFORE, DURING, OR AFTER TRANSMISSION BY AN INTERSTATE PIPELINE
COMPANY" ARE COVERED UNDER THE ACT.  ANTE, P. 682.  ON ITS FACE, THIS
LANGUAGE BRINGS EVERY GAS OPERATOR, FROM THE SMALLEST PRODUCER TO THE
LARGEST PIPELINE, UNDER FEDERAL REGULATORY CONTROL.  IN SO DOING, THE
COURT ACTS CONTRARY TO THE INTENTION OF THE CONGRESS, THE UNDERSTANDING
OF THE STATES, AND THAT OF THE FEDERAL POWER COMMISSION ITSELF.  THE
FEDERAL POWER COMMISSION IS THEREBY THRUST INTO THE REGULATORY DOMAIN
TRADITIONALLY RESERVED TO THE STATES. 

THE NATURAL GAS INDUSTRY, LIKE ANCIENT GAUL, IS DIVIDED INTO THREE
PARTS.  THESE PARTS ARE PRODUCTION AND GATHERING, INTERSTATE
TRANSMISSION BY PIPELINE, AND DISTRIBUTION TO CONSUMERS BY LOCAL
DISTRIBUTION COMPANIES.  A BUSINESS UNIT MAY PERFORM MORE THAN ONE OF
THESE FUNCTIONS - TYPICALLY, PRODUCTION AND GATHERING IN ADDITION TO
INTERSTATE TRANSMISSION.  BUT PHILLIPS' NATURAL GAS OPERATIONS ARE
CONFINED EXCLUSIVELY TO THE FIRST PART - PRODUCTION AND GATHERING.  IT
HAS NO INTERSTATE TRANSMISSION OR HIGH-PRESSURE TRUNK LINES AND DOES
NOT SELL TO DISTRIBUTION COMPANIES; AND IT DOES NOT, OF COURSE,
DISTRIBUTE TO THE ULTIMATE CONSUMER.  ITS NINE GATHERING SYSTEMS MERELY
BRING THE GAS FROM ITS OWN AND OTHER PRODUCERS' WELLS TO ITS CENTRAL
PLANTS IN THE PRODUCING FIELDS SO IT CAN BE RENDERED USABLE AS FUEL. 
SINCE THERE ARE NO FACILITIES FOR STORAGE, THE AMOUNT OF GAS, OTHER
THAN CASINGHEAD,* PRODUCED AND GATHERED EACH DAY DEPENDS ON THE DAY-TO
DAY DEMANDS OF THE INTERSTATE PIPELINES, WHICH IN TURN DEPEND ON
WEATHER AND OTHER CONDITIONS IN CONSUMING AREAS.  GAS WELLS ARE CUT ON
AND OFF AS THE MARKET DEMAND FOR THE GAS REQUIRES.  GATHERING TAKES
PLACE BY WELL PRESSURE FORCING THE GAS THROUGH NUMEROUS SMALL PIPES
CONNECTING EACH WELL WITH THE CENTRAL GATHERING PLANT OR PROCESSING
STATION.  IT IS THERE THAT THE GAS FIRST COMES TO A COMMON "HEADER" AND
IS PROCESSED FOR USE AS FUEL.  THE PROCESSING OF THE GAS AT THIS
CENTRAL GATHERING PLANT IS NECESSARY TO REMOVE HYDROCARBONS, HYDROGEN
SULPHIDE AND OTHER FOREIGN ELEMENTS IN ORDER TO PERMIT ITS USE AS
FUEL.  THE PLANT OPERATES ONLY WHILE THE WELLS ARE PRODUCING.  ALL OF
PHILLIPS' OPERATIONS, INCLUDING THE ACREAGE FROM WHICH THE WELLS
PRODUCE THE GAS, THE WELLS THEMSELVES, THE LINES THAT CONNECT WITH EACH
OF THEM AND RUN TO THE CENTRAL PLANT, FORM A CLOSELY KNIT UNIT THAT IS
ENTIRELY LOCAL TO THE FIELD INVOLVED.  AFTER PROCESSING, THE GAS IS
IMMEDIATELY DELIVERED TO THE INTERSTATE PIPELINES UNDER LONG-TERM SALES
CONTRACTS. 

*CASINGHEAD GAS IS PRODUCED WITH OIL AND FURNISHES THE PRESSURE UNDER
WHICH THE LATTER IS BROUGHT TO THE SURFACE.  THE GAS CANNOT BE SHUT OFF
WITHOUT CLOSING DOWN THE OIL PRODUCTION AND IT THEREFORE IS PRODUCED,
REGARDLESS OF DEMAND, SINCE THE PRIMARY RECOVERY IS OIL.  IF THERE ARE
NO AVAILABLE PURCHASERS THE GAS IS FLARED (BURNED).  IN SOME FIELDS AS
MUCH AS ONE-THIRD OF THE CASINGHEAD GAS IS STILL FLARED SINCE NO MARKET
IS IMMEDIATELY AVAILABLE.  SOUND CONSERVATION PRACTICE DICTATES THAT,
WHENEVER POSSIBLE, CASINGHEAD GAS BE USED TO SATISFY DEMAND BEFORE
NATURAL GAS WELLS ARE TURNED ON. 

THE COMMISSION FOUND THAT "THOUGH TECHNICALLY CONSUMMATED IN
INTERSTATE COMMERCE, THESE SALES BY PHILLIPS TO THE PIPELINES ARE MADE
'DURING THE COURSE OF PRODUCTION AND GATHERING,'" AND THAT THE SALES
"ARE SO CLOSELY CONNECTED WITH THE LOCAL INCIDENTS OF PRODUCTION AND
GATHERING AS TO RENDER RATE REGULATION BY THIS COMMISSION INCONSISTENT
OR A SUBSTANTIAL INTERFERENCE WITH THE EXERCISE BY THE AFFECTED STATES
OF THEIR REGULATORY FUNCTIONS."  10 F.P.C., AT 278.  WE BELIEVE THAT
THIS FINDING IS CORRECT AND THAT IT SHOULD BE APPROVED BY THE COURT. 

IF THERE BE ANY DOUBT THAT CONGRESS THOUGHT THE "PRODUCTION AND
GATHERING" EXEMPTION SAVED PHILLIPS' SALES FROM FEDERAL POWER
COMMISSION REGULATION, THE ACT'S LEGISLATIVE HISTORY REMOVES IT. THE
SOLICITOR OF THE COMMISSION, MR. DOZIER DEVANE, AT HEARINGS IN
CONNECTION WITH A PREDECESSOR OF THE BILL THAT FINALLY BECAME THE
NATURAL GAS ACT, TESTIFIED THAT THE FEDERAL POWER COMMISSION WOULD HAVE
NO JURISDICTION OVER THE RATES FOR NATURAL GAS "THAT ARE PAID IN THE
GATHERING FIELD."  HEARINGS BEFORE SUBCOMMITTEE OF THE HOUSE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 11662, 74TH CONG., 2D SESS.,
P. 28 (1936).  THE BILL, HE SAID, "DOES NOT ATTEMPT TO REGULATE THE
GATHERING RATES OR THE GATHERING BUSINESS."  ID., 34.  SEE ALSO, ID.,
42-43.  THE BILL ABOUT WHICH MR. DEVANE TESTIFIED HAS BEEN DESCRIBED AS
"SUBSTANTIALLY SIMILAR TO THE NATURAL GAS ACT," AND HIS VIEWS HAVE BEEN
TREATED AS AUTHORITATIVE BY THIS COURT.  FEDERAL POWER COMMISSION V.
PANHANDLE EASTERN PIPE LINE CO., 337 U.S. 498, 505, N. 7 (1949).  SEE
ALSO FEDERAL POWER COMMISSION V. EAST OHIO GAS CO., 338 U.S. 464, 472,
N. 12 (1950).  IN THE FACE OF THIS AS WELL AS THE FEDERAL POWER
COMMISSION'S ADHERENCE TO THE DEVANE VIEWS EVER SINCE ITS FIRST CASES
ON THE SUBJECT, COLUMBIAN FUEL CORP, 2 F.P.C. 200 (1940), BILLINGS GAS
CO., 2 F.P.C. 288 (1940), AND IN THE ABSENCE OF ANY SPECIFIC MATTER IN
THE ACT'S LEGISLATIVE HISTORY REFUTING THE DEVANE VIEWS, THE COURT
TODAY ERRONEOUSLY FINDS THAT DEVANE'S "TESTIMONY HAS LITTLE RELEVANCE
HERE."  ANTE, P. 682, N. 9. 

THERE IS NO DISPUTE THAT CONGRESS INTENDED THE NATURAL GAS ACT TO
CLOSE THE "GAP" CREATED BY DECISIONS OF THIS COURT BARRING STATE
REGULATION OF CERTAIN INTERSTATE GAS SALES.  THE LEGISLATIVE HISTORY OF
THE ACT REFERS TO TWO DECISIONS:  MISSOURI V. KANSAS NATURAL GAS CO.,
265 U.S. 298 (1924); PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM &
ELECTRIC CO., 273 U.S. 83 (1927).  SEE H.R. REP. NO. 709, 75TH CONG.,
1ST SESS., PP. 1-2 (1937).  BUT THESE CASES HAD NOTHING TO DO WITH
SALES TO INTERSTATE PIPELINES BY WHOLLY INDEPENDENT, UNINTEGRATED, AND
UNAFFILIATED PRODUCERS AND GATHERERS, SUCH AS PHILLIPS.  NEITHER OF THE
COMPANIES INVOLVED IN THOSE CASES WAS ENGAGED EXCLUSIVELY IN PRODUCTION
AND GATHERING; BOTH WERE PRODUCING AND TRANSPORTATION COMPANIES, KANSAS
OF NATURAL GAS, ATTLEBORO OF ELECTRICITY; BOTH KANSAS AND ATTLEBORO
SOLD TO DISTRIBUTING COMPANIES IN THE COURSE OF INTERSTATE
TRANSMISSION.  THUS, WHEN THE HOUSE REPORT, ID., 1-2, EXPRESSED THE
ACT'S AIM TO REGULATE WHOLESALES SUCH AS "SALES BY PRODUCING COMPANIES
TO DISTRIBUTING COMPANIES," AND IMMEDIATELY THEREAFTER CITED THE KANSAS
AND ATTLEBORO CASES, THE REPORT'S UNMISTAKABLE REFERENCE WAS TO SALES
BY AN INTEGRATED "PRODUCER-PIPELINE" TO THE LOCAL DISTRIBUTOR.  IT
COULD NOT REFER TO AN INDEPENDENT PRODUCER AND GATHERER BECAUSE, FIRST,
SUCH AN INDEPENDENT NEVER SELLS TO LOCAL DISTRIBUTORS AND, SECONDLY,
THE TWO CITED CASES DO NOT SUPPORT A REFERENCE TO SUCH INDEPENDENTS. 
THAT CONGRESS AIMED AT ABUSES RESULTING IN THE "GAP" AT THE END OF THE
TRANSMISSION PROCESS BY INTEGRATED AND UNINTEGRATED PIPELINES AND NOT
AT ABUSES PRIOR TO TRANSMISSION IS CLEAR FROM THE FINAL REPORT OF THE
FEDERAL TRADE COMMISSION TO THE SENATE ON MALPRACTICES IN THE NATURAL
GAS INDUSTRY.  S. DOC. 92, 70TH CONG., 1ST SESS. (1935).  THIS REPORT
WAS THE STIMULUS FOR FEDERAL INTERVENTION IN THE INDUSTRY.  THE FEDERAL
TRADE COMMISSION OUTLINED THE ABUSES IN THE INDUSTRY WHICH THE "GAP"
MADE THE STATES POWERLESS TO PREVENT; THE ABUSES WERE BY
MONOPOLISTICALLY SITUATED PIPELINES WHICH GOUGED THE CONSUMER BY
CHARGING LOCAL DISTRIBUTION COMPANIES UNREASONABLE RATES.  THE FEDERAL
TRADE COMMISSION DID NOT FIND ABUSIVE PRICING BY INDEPENDENT PRODUCERS
AND GATHERERS; IF ANYTHING, THE INDEPENDENTS AT THE PRODUCING END OF
THE PIPELINES WERE LIKEWISE THE VICTIMS OF MONOPOLISTIC PRACTICES BY
THE PIPELINES.    AND OUR DECISIONS HAVE CERTAINLY INDICATED THAT THE
"GAP" WAS AT THE DISTRIBUTION END OF THE TRANSMISSION PROCESS.  THUS,
IN FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO., 320 U.S. 591
(1944), THE COURT OBSERVED THAT "THE FEDERAL POWER COMMISSION WAS GIVEN
NO AUTHORITY OVER 'THE PRODUCTION OR GATHERING OF NATURAL GAS'" AND
THAT THE PRODUCING STATES HAD THE POWER "TO PROTECT THE INTERESTS OF
THOSE WHO SELL THEIR GAS TO THE INTERSTATE OPERATOR."  ID., AT 612-613,
614.  FIVE YEARS LATER, IN FEDERAL POWER COMMISSION V. PANHANDLE
EASTERN PIPE LINE CO., SUPRA, THE COURT SAID ITS APPROVAL OF THE
COMMISSION'S INCLUSION OF THE COST OF PRODUCTION AND GATHERING
FACILITIES OF AN INTERSTATE PIPELINE IN THE LATTER'S RATE BASE "IS NOT
A PRECEDENT FOR REGULATION OF ANY PART OF PRODUCTION OR MARKETING." 
337 U.S., AT 506. 

BY TODAY'S DECISION, THE COURT RESTRICTS THE PHRASE "PRODUCTION AND
GATHERING" TO "THE PHYSICAL ACTIVITIES, FACILITIES, AND PROPERTIES"
USED IN PRODUCTION AND GATHERING.  SUCH A GLOSS STRIPS THE WORDS OF
THEIR SUBSTANCE.  IF THE CONGRESS SO INTENDED, THEN IT LEFT FOR STATE
REGULATION ONLY A MASS OF EMPTY PIPE, VACANT PROCESSING PLANTS AND
THOUSANDS OF HOLLOW WELLS WITH SCARECROW DERRICKS, MONUMENTS TO THIS
NEW EXTENSION OF FEDERAL POWER.  IT WAS NOT SO UNDERSTOOD.  THE STATES
HAVE BEEN FOR OVER 35 YEARS AND ARE NOW ENFORCING REGULATORY LAWS
COVERING PRODUCTION AND GATHERING, INCLUDING PRICING, PRORATION OF GAS,
RATABLE TAKING, UNITIZATION OF FIELDS, PROCESSING OF CASINGHEAD GAS
INCLUDING PRIORITY OVER OTHER GASES, WELL SPACING, REPRESSURING,
ABANDONMENT OF WELLS, MARGINAL AREA DEVELOPMENT, AND OTHER DEVICES. 
EVERYONE IS FULLY AWARE OF THE DIRECT RELATIONSHIP OF PRICE AND
CONSERVATION.  FEDERAL POWER COMMISSION V. PANHANDLE EASTERN PIPE LINE
CO., SUPRA, AT 507.  AND THE POWER OF THE STATES TO REGULATE THE
PRODUCERS' AND GATHERERS' PRICES HAS BEEN UPHELD IN THIS COURT.  CITIES
SERVICE GAS CO. V. PEERLESS OIL & GAS CO., 340 U.S. 179 (1950);
PHILLIPS PETROLEUM CO. V. OKLAHOMA, 340 U.S. 190 (1950).  THERE CAN BE
NO DOUBT, AS THE COMMISSION HAS FOUND, THAT FEDERAL REGULATION OF
PRODUCTION AND GATHERING WILL COLLIDE AND SUBSTANTIALLY INTERFERE WITH
AND HINDER THE ENFORCEMENT OF THESE STATE REGULATORY MEASURES.  WE
CANNOT SQUARE THIS RESULT WITH THE HOUSE REPORT ON THIS ACT WHICH
STATES THAT THE SUBSEQUENTLY ENACTED BILL "IS SO DRAWN AS TO COMPLEMENT
AND IN NO MANNER USURP STATE REGULATORY AUTHORITY."  H.R. REP. NO. 709,
SUPRA, AT 2. 

THE MAJORITY RELY HEAVILY ON INTERSTATE NATURAL GAS CO. V. FEDERAL
POWER COMMISSION, 331 U.S. 682 (1947), TO SUPPORT THEIR POSITION.  TO
BE SURE, THERE IS LANGUAGE IN THAT CASE WHICH ON ITS FACE SEEMS TO
GOVERN THE PRESENT CASE.  ID., AT 692-693.  BUT THAT CASE INVOLVED A
MATERIALLY DIFFERENT FACT SITUATION.  THE INTERSTATE GAS COMPANY WAS
ALREADY SUBJECT TO FEDERAL POWER COMMISSION JURISDICTION BECAUSE OF ITS
INTERSTATE PIPELINE OPERATIONS; AND THE COMPANY WAS AFFILIATED WITH ONE
OF THE PIPELINES TO WHICH IT SOLD.  IN ADDITION, THE COURT EMPHASIZED
THE FACT THAT IN INTERSTATE NO CLAIM TO STATE REGULATORY AUTHORITY WAS
MADE.  INDEED, THE INTERSTATE COMPANY HAD SUCCESSFULLY RESISTED STATE
ATTEMPTS TO REGULATE.  HENCE THERE WAS NO POSSIBILITY OF CONFLICT IN
THAT CASE; EITHER THE FEDERAL POWER COMMISSION MOVED IN OR INTERSTATE
WOULD HAVE REMAINED UNREGULATED.  BUT PERHAPS A MORE SIGNIFICANT
FACTUAL DISTINCTION IN TERMS OF THE COURT'S REASONING IN THAT CASE
RESTS IN THE FACT THAT OF THE TOTAL VOLUME OF GAS INTERSTATE SOLD,
ROUGHLY 42% HAD BEEN PURCHASED FROM OTHERS WHO HAD PRODUCED AND
GATHERED IT.  THIS 42% WAS ALMOST ENOUGH TO SUPPLY ALL THE NEEDS OF THE
THREE INTERSTATE PIPELINES TO WHICH INTERSTATE SOLD.  AND THE 42%,
ALREADY GATHERED AND PROCESSED, MOVED INTO AND THROUGH INTERSTATE'S
BRANCH, TRUNK, AND MAIN LINES.  IN SHORT, INTERSTATE WAS THE EQUIVALENT
OF A MIDDLEMAN BETWEEN GATHERERS AND THE PIPELINES FOR ALMOST ALL THE
GAS IT SOLD TO THE PIPELINES AND PERFORMED THE FUNCTION OF TRANSPORTING
THE GAS IT PURCHASED FROM OTHER GATHERERS THROUGH ITS BRANCH, TRUNK,
AND MAIN TRUNK LINES.  PHILLIPS PERFORMS NO SUCH MIDDLEMAN OR
TRANSMISSION FUNCTION.  IN ADDITION, THE LATE CHIEF JUSTICE VINSON IN
THAT CASE SPECIFICALLY STATED THAT:  "WE EXPRESS NO OPINION AS TO THE
VALIDITY OF THE JURISDICTIONAL TESTS EMPLOYED BY THE COMMISSION IN
THESE CASES (COLUMBIAN AND BILLINGS, SUPRA)."  331 U.S., AT 690-691, N.
18.  SINCE IT WAS IN THOSE CASES THAT THE FEDERAL POWER COMMISSION
ESTABLISHED THE POLICY OF DECLINING JURISDICTION OVER THE RATES CHARGED
BY WHOLLY INDEPENDENT PRODUCERS AND GATHERERS, IT IS DIFFICULT TO SEE
HOW INTERSTATE CAN CONTROL THE PRESENT CASE. 

IF WE LOOK TO INTERSTATE FOR GUIDANCE, WE WOULD DO BETTER TO FOCUS ON
THE FOLLOWING WORDS OF THE LATE CHIEF JUSTICE: 

"CLEARLY, AMONG THE POWERS THUS RESERVED TO THE STATES IS THE POWER
TO REGULATE THE PHYSICAL PRODUCTION AND GATHERING OF NATURAL GAS IN THE
INTERESTS OF CONSERVATION OR OF ANY OTHER CONSIDERATION OF LEGITIMATE
LOCAL CONCERN.  IT WAS THE INTENTION OF CONGRESS TO GIVE THE STATES
FULL FREEDOM IN THESE MATTERS.  THUS, WHERE SALES, THOUGH TECHNICALLY
CONSUMMATED IN INTERSTATE COMMERCE, ARE MADE DURING THE COURSE OF
PRODUCTION AND GATHERING AND ARE SO CLOSELY CONNECTED WITH THE LOCAL
INCIDENTS OF THAT PROCESS AS TO RENDER RATE REGULATION BY THE FEDERAL
POWER COMMISSION INCONSISTENT OR A SUBSTANTIAL INTERFERENCE WITH THE
EXERCISE BY THE STATE OF ITS REGULATORY FUNCTIONS, THE JURISDICTION OF
THE FEDERAL POWER COMMISSION DOES NOT ATTACH."  331 U.S., AT 690. 

EVEN A CURSORY EXAMINATION OF PHILLIPS' OPERATIONS REVEALS HOW
COMPLETELY LOCAL THEY ARE AND HOW INCIDENTAL TO THEM ARE ITS SALES TO
THE PIPELINES.  MOREOVER, FEDERAL REGULATION OF THESE SALES MEANS AN
INEVITABLE CLASH WITH A COMPLEX OF STATE REGULATORY ACTION, INCLUDING
MINIMUM PRICING.  THESE WERE MATTERS FOUND BY THE FEDERAL POWER
COMMISSION IN LANGUAGE OBVIOUSLY PATTERNED AFTER THE ABOVE QUOTATION. 
THE CLEAR IMPORT OF THE CITED WORDS IS THAT FEDERAL POWER COMMISSION
JURISDICTION "DOES NOT ATTACH" IN SUCH A SITUATION. 

IN THE WORDS OF MR. JUSTICE JACKSON, WE BELIEVE "THAT OBSERVANCE OF
GOOD FAITH WITH THE STATES REQUIRES THAT WE INTERPRET THIS ACT AS IT
WAS REPRESENTED AT THE TIME THEY URGED ITS ENACTMENT, AS ITS TERMS
READ, AND AS WE HAVE, UNTIL TODAY, DECLARED IT, VIZ., TO SUPPLEMENT BUT
NOT TO SUPPLANT STATE REGULATION."  FEDERAL POWER COMMISSION V. EAST
OHIO GAS CO., SUPRA, AT 490. 
..END :




















LEYRA V. DENNO 347 U.S. 556 


NO. 635.  ARGUED APRIL 28, 1954 - DECIDED JUNE 1, 1954 - 208 F.2D 605,
REVERSED. 


AFTER PETITIONER HAD BEEN SUBJECTED TO MANY HOURS OF DAY-AND-NIGHT
QUESTIONING BY POLICE OFFICERS AS A MURDER SUSPECT, A STATE-EMPLOYED
PSYCHIATRIST WITH CONSIDERABLE KNOWLEDGE OF HYPNOSIS WAS INTRODUCED TO
HIM AS A "DOCTOR" BROUGHT TO GIVE HIM MEDICAL RELIEF FROM A PAINFUL
SINUS.  BY SKILLFUL AND SUGGESTIVE QUESTIONING, THREATS AND PROMISES,
THE PSYCHIATRIST OBTAINED A CONFESSION.  AT PETITIONER'S FIRST TRIAL IN
A NEW YORK STATE COURT, THAT CONFESSION WAS ADMITTED IN EVIDENCE AND HE
WAS CONVICTED; BUT THE STATE COURT OF APPEALS REVERSED ON THE GROUND
THAT THE CONFESSION WAS COERCED.  AT PETITIONER'S SECOND TRIAL, THAT
CONFESSION WAS NOT USED TO CONVICT HIM; BUT OTHER CONFESSIONS MADE THE
SAME EVENING WERE USED.  THE ISSUE AS TO THE "VOLUNTARINESS" OF THESE
LATER CONFESSIONS WAS SUBMITTED TO THE JURY AND PETITIONER WAS AGAIN
CONVICTED.  HELD:  THE USE OF CONFESSIONS EXTRACTED IN SUCH A MANNER
FROM A LONE DEFENDANT UNPROTECTED BY COUNSEL IS NOT CONSISTENT WITH THE
DUE PROCESS OF LAW REQUIRED BY THE CONSTITUTION, AND A FEDERAL DISTRICT
COURT'S DENIAL OF A WRIT OF HABEAS CORPUS IS REVERSED.  PP. 556-562. 

LEYRA V. DENNO, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

CAMILO LEYRA, AGE 75, AND HIS WIFE, AGE 80 WERE FOUND DEAD IN THEIR
BROOKLYN APARTMENT.  SEVERAL DAYS LATER PETITIONER, THEIR SON, AGE 50
WAS INDICTED IN A STATE COURT CHARGED WITH HAVING MURDERED THEM WITH A
HAMMER.  HE WAS CONVICTED AND SENTENCED TO DEATH, CHIEFLY ON SEVERAL
ALLEGED CONFESSIONS OF GUILT.  THE NEW YORK COURT OF APPEALS REVERSED
ON THE GROUND THAT ONE OF THE CONFESSIONS, MADE TO A STATE-EMPLOYED
PSYCHIATRIST, HAD BEEN EXTORTED FROM PETITIONER BY COERCION AND
PROMISES OF LENIENCY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  (FN1)  302 N.Y. 353, 98 N.E.2D 553.  PETITIONER
WAS THEN TRIED AGAIN.  THIS TIME THE INVALIDATED CONFESSION WAS NOT
USED TO CONVICT HIM BUT SEVERAL OTHER CONFESSIONS THAT FOLLOWED IT THE
SAME DAY WERE USED.  PETITIONER OBJECTED TO THE ADMISSION OF THESE
OTHER CONFESSIONS ON THE GROUND THAT THEY WERE ALSO COERCED, BUT THE
TRIAL COURT SUBMITTED TO THE JURY THE QUESTION OF THEIR
"VOLUNTARINESS."  THE JURY CONVICTED AND THE DEATH SENTENCE NOW BEFORE
US WAS IMPOSED.  (FN2)  THE NEW YORK COURT OF APPEALS, HOLDING THAT
THERE WAS EVIDENCE TO SUPPORT A FINDING THAT THE CONFESSIONS USED WERE
FREE FROM THE COERCIVE INFLUENCES OF THE ONE PREVIOUSLY GIVEN THE
PSYCHIATRIST, AFFIRMED, JUDGE FULD AND THE LATE CHIEF JUDGE LOUGHRAN
DISSENTING.  304 N.Y. 468, 108 N.E.2D 673.  WE DENIED CERTIORARI.  345
U.S. 918.  PETITIONER THEN FILED THIS HABEAS CORPUS PROCEEDING IN A
UNITED STATES DISTRICT COURT, CHARGING THAT THE CONFESSIONS USED
AGAINST HIM HAD BEEN COERCED, DEPRIVING HIM OF DUE PROCESS OF LAW.  THE
DISTRICT COURT PROPERLY GAVE CONSIDERATION TO THE PETITION, BROWN V.
ALLEN, 344 U.S. 443, BUT DENIED IT.  113 F. SUPP. 556.  THE COURT OF
APPEALS FOR THE SECOND CIRCUIT AFFIRMED, JUDGE FRANK DISSENTING.  208
F.2D 605.  PETITIONER THEN SOUGHT REVIEW IN THIS COURT, AGAIN URGING
THAT HE WAS DENIED DUE PROCESS ON THE GROUND THAT HIS CONFESSIONS TO A
POLICE CAPTAIN AND TO TWO ASSISTANT STATE PROSECUTORS WERE FORCED.  WE
GRANTED CERTIORARI BECAUSE THE CONSTITUTIONAL QUESTION APPEARED
SUBSTANTIAL.  347 U.S. 926. 

THE USE IN A STATE CRIMINAL TRIAL OF A DEFENDANT'S CONFESSION
OBTAINED BY COERCION - WHETHER PHYSICAL OR MENTAL - IS FORBIDDEN BY THE
FOURTEENTH AMENDMENT.  (FN3)  THE QUESTION FOR OUR DECISION IS
THEREFORE WHETHER THE PRESENT CONFESSIONS WERE SO COERCED.  THIS
QUESTION CAN ONLY BE ANSWERED BY REVIEWING THE CIRCUMSTANCES
SURROUNDING THE CONFESSIONS.  WE THEREFORE EXAMINE THE CIRCUMSTANCES AS
SHOWN BY THE UNDISPUTED FACTS OF THIS CASE. 

WHEN THE FATHER FAILED TO APPEAR AT HIS PLACE OF BUSINESS ON TUESDAY,
JANUARY 10, 1950, PETITIONER, HIS BUSINESS PARTNER, AND OTHERS WENT TO
THE FATHER'S APARTMENT ABOUT 3 P.M.  AND FOUND THE BODIES OF THE AGED
PARENTS.  POLICE WERE CALLED.  ALTHOUGH THEY FIRST SUSPECTED A PROWLING
INTRUDER, THE PRESENCE ON THE COUPLE'S DISARRANGED BREAKFAST TABLE OF A
THIRD TEACUP LED THEM TO THINK THAT THE KILLER WAS A WELCOME GUEST. 
THIS AND OTHER CIRCUMSTANCES DREW SUSPICION TOWARD PETITIONER.  HE AND
OTHERS WERE QUESTIONED BY THE POLICE UNTIL ABOUT 11 P.M. ON THE EVENING
OF THE DAY THE BODIES WERE DISCOVERED.  ON WEDNESDAY, POLICE AGAIN
QUESTIONED PETITIONER FROM ABOUT 10 IN THE MORNING TO MIDNIGHT.  ONCE
MORE, BEGINNING ABOUT 9 THURSDAY MORNING PETITIONER WAS SUBJECTED TO
ALMOST CONSTANT POLICE QUESTIONING THROUGHOUT THE DAY AND MUCH OF THE
NIGHT UNTIL ABOUT 8:30 FRIDAY MORNING.  AT THAT TIME PETITIONER WAS
TAKEN BY POLICE TO HIS PARENTS' FUNERAL.  WHILE PETITIONER WAS AT THE
FUNERAL AND UNTIL HE RETURNED IN THE LATE AFTERNOON, CAPTAIN MEENAHAN,
HIS CHIEF POLICE QUESTIONER, WENT HOME TO GET SOME "REST."  AFTER THE
FUNERAL PETITIONER HIMSELF WAS PERMITTED TO GO TO A HOTEL AND SLEEP AN
HOUR AND A HALF.  HE WAS RETURNED TO THE POLICE STATION ABOUT 5 P.M. ON
THIS FRIDAY AFTERNOON.  DURING HIS ABSENCE A CONCEALED MICROPHONE HAS
BEEN INSTALLED WITH WIRE CONNECTIONS TO ANOTHER ROOM IN WHICH THE STATE
PROSECUTOR, THE POLICE, AND POSSIBLY SOME OTHERS WERE STATIONED TO
OVERHEAR WHAT PETITIONER MIGHT SAY.  UP TO THIS TIME HE HAD NOT
CONFESSED TO THE CRIME. 

THE PETITIONER HAD BEEN SUFFERING FROM AN ACUTELY PAINFUL ATTACK OF
SINUS AND CAPTAIN MEENAHAN HAD PROMISED TO GET A PHYSICIAN TO HELP
HIM.  WHEN PETITIONER RETURNED TO THE QUESTIONING ROOM AFTER THE
FUNERAL, CAPTAIN MEENAHAN INTRODUCED HIM TO "DR. HELFAND," SUPPOSEDLY
TO GIVE PETITIONER MEDICAL RELIEF.  DR. HELFAND, HOWEVER, WAS NOT A
GENERAL PRACTITIONER BUT A PSYCHIATRIST WITH CONSIDERABLE KNOWLEDGE OF
HYPNOSIS.  PETITIONER WAS LEFT WITH DR. HELFAND WHILE CAPTAIN MEENAHAN
JOINED THE STATE DISTRICT ATTORNEY IN THE NEARBY LISTENING ROOM. 
INSTEAD OF GIVING PETITIONER THE MEDICAL ADVICE AND TREATMENT HE
EXPECTED, THE PSYCHIATRIST BY SUBTLE AND SUGGESTIVE QUESTIONS SIMPLY
CONTINUED THE POLICE EFFORT OF THE PAST DAYS AND NIGHTS TO INDUCE
PETITIONER TO ADMIT HIS GUILT.  FOR AN HOUR AND A HALF OR MORE THE
TECHNIQUES OF A HIGHLY TRAINED PSYCHIATRIST WERE USED TO BREAK
PETITIONER'S WILL IN ORDER TO GET HIM TO SAY HE HAD MURDERED HIS
PARENTS.  TIME AND TIME AND TIME AGAIN THE PSYCHIATRIST TOLD PETITIONER
HOW MUCH HE WANTED TO AND COULD HELP HIM, HOW BAD IT WOULD BE FOR
PETITIONER IF HE DID NOT CONFESS, AND HOW MUCH BETTER HE WOULD FEEL,
AND HOW MUCH LIGHTER AND EASIER IT WOULD BE ON HIM IF HE WOULD JUST
UNBOSOM HIMSELF TO THE DOCTOR.  YET THE DOCTOR WAS AT THAT VERY TIME
THE PAID REPRESENTATIVE OF THE STATE WHOSE PROSECUTING OFFICIALS WERE
LISTENING IN ON EVERY THREAT MADE AND EVERY PROMISE OF LENIENCY GIVEN. 

A TAPE RECORDING OF THE PSYCHIATRIC EXAMINATION WAS MADE AND A
TRANSCRIPTION OF THE TAPE WAS READ INTO THE RECORD OF THIS CASE.  TO
SHOW EXACTLY WHAT TRANSPIRED WE ATTACH RATHER LENGTHY EXCERPTS FROM
THAT TRANSCRIPTION AS AN APPENDIX, POST, P. 562.  THE PETITIONER'S
ANSWERS INDICATE A MIND DAZED AND BEWILDERED.  TIME AFTER TIME THE
PETITIONER COMPLAINED ABOUT HOW TIRED AND HOW SLEEPY HE WAS AND HOW HE
COULD NOT THINK.  ON OCCASION AFTER OCCASION THE DOCTOR TOLD PETITIONER
EITHER TO OPEN HIS EYES OR TO SHUT HIS EYES.  APPARENTLY MANY OF
PETITIONER'S ANSWERS WERE BARELY AUDIBLE.  ON OCCASIONS THE DOCTOR
INFORMED PETITIONER THAT HIS LIPS WERE MOVING BUT NO SOUND BOULD BE
HEARD.  MANY TIMES PETITIONER WAS ASKED TO SPEAK LOUDER.  AS TIME WENT
ON, THE RECORD INDICATES THAT PETITIONER BEGAN TO ACCEPT SUGGESTIONS OF
THE PSYCHIATRIST.  FOR INSTANCE, DR. HELFAND SUGGESTED THAT PETITIONER
HAD HIT HIS PARENTS WITH A HAMMER AND AFTER SOME MINUTES PETITIONER
AGREED THAT MUST HAVE BEEN THE WEAPON. 

FINALLY, AFTER AN HOUR AND A HALF OR LONGER, PETITIONER, ENCOURAGED
BY THE DOCTOR'S ASSURANCES THAT HE HAD DONE NO MORAL WRONG AND WOULD BE
LET OFF EASILY, CALLED FOR CAPTAIN MEENAHAN.  THE CAPTAIN IMMEDIATELY
APPEARED.  IT WAS THEN THAT THE CONFESSION WAS GIVEN TO HIM WHICH WAS
ADMITTED AGAINST PETITIONER IN THIS TRIAL.  IMMEDIATELY FOLLOWING THIS
CONFESSION TO CAPTAIN MEENAHAN, PETITIONER'S BUSINESS PARTNER WAS
CALLED FROM AN ADJOINING ROOM.  THE POLICE HAD APPARENTLY BROUGHT THE
BUSINESS PARTNER THERE TO HAVE HIM TALK TO PETITIONER AT AN OPPORTUNE
MOMENT.  PETITIONER REPEATED TO HIS PARTNER IN A VERY BRIEF WAY SOME OF
THE THINGS HE HAD TOLD THE PSYCHIATRIST AND THE CAPTAIN.  FOLLOWING
THIS, PETITIONER WAS QUESTIONED BY THE TWO ASSISTANT STATE
PROSECUTORS.  WHAT PURPORTS TO BE HIS FORMAL CONFESSION WAS TAKEN DOWN
BY THEIR STENOGRAPHER, WITH A NOTATION THAT IT WAS GIVEN AT 10 P.M.,
SEVERAL HOURS AFTER THE PSYCHIATRIST TOOK PETITIONER IN CHARGE. 

ON THE FIRST APPEAL THE NEW YORK COURT OF APPEALS HELD THAT THE
ADMISSIONS PETITIONER MADE TO THE PSYCHIATRIST WERE SO CLEARLY THE
PRODUCT OF "MENTAL COERCION" THAT THEIR USE AS EVIDENCE WAS
INCONSISTENT WITH DUE PROCESS OF LAW.  ON THE SECOND APPEAL, HOWEVER,
THAT COURT HELD THAT THE SUBSEQUENT CONFESSIONS HERE CHALLENGED WERE
PROPERLY ADMITTED.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT HELD
THE SAME THING.  WITH THIS HOLDING WE CANNOT AGREE.  UNLIKE THE
CIRCUMSTANCES IN LYONS V. OKLAHOMA, 322 U.S. 596, 602, 603, THE
UNDISPUTED FACTS IN THIS CASE ARE IRRECONCILABLE WITH PETITIONER'S
MENTAL FREEDOM "TO CONFESS OR DENY A SUSPECTED PARTICIPATION IN A
CRIME," AND THE RELATION OF THE CONFESSIONS MADE TO THE PSYCHIATRIST,
THE POLICE CAPTAIN AND THE STATE PROSECUTORS IS "SO CLOSE THAT ONE MUST
SAY THE FACTS OF ONE CONTROL THE CHARACTER OF THE OTHER  ...  ."  ALL
WERE SIMPLY PARTS OF ONE CONTINUOUS PROCESS.  ALL WERE EXTRACTED IN THE
SAME PLACE WITHIN A PERIOD OF ABOUT FIVE HOURS AS THE CLIMAX OF DAYS
AND NIGHTS OF INTERMITTENT, INTENSIVE POLICE QUESTIONING.  FIRST, AN
ALREADY PHYSICALLY AND EMOTIONALLY EXHAUSTED SUSPECT'S ABILITY TO
RESIST INTERROGATION WAS BROKEN TO ALMOST TRANCE-LIKE SUBMISSION BY USE
OF THE ARTS OF A HIGHLY SKILLED PSYCHIATRIST.  THEN THE CONFESSION
PETITIONER BEGAN MAKING TO THE PSYCHIATRIST WAS FILLED IN AND PERFECTED
BY ADDITIONAL STATEMENTS GIVEN IN RAPID SUCCESSION TO A POLICE OFFICER,
A TRUSTED FRIEND, AND TWO STATE PROSECUTORS.  WE HOLD THAT USE OF
CONFESSIONS EXTRACTED IN SUCH A MANNER FROM A LONE DEFENDANT
UNPROTECTED BY COUNSEL IS NOT CONSISTENT WITH DUE PROCESS OF LAW AS
REQUIRED BY OUR CONSTITUTION. 

IT WAS ERROR FOR THE COURT BELOW TO AFFIRM THE DISTRICT COURT'S
DENIAL OF PETITIONER'S APPLICATION FOR HABEAS CORPUS.  REVERSED. 

FN1  THE CONFESSION WAS ALSO HELD TO HAVE BEEN IN VIOLATION OF STATE
LAW AND THE STATE'S DUE PROCESS CLAUSE. 

FN2  THE DEATH SENTENCE WAS IMPOSED UNDER A CONVICTION FOR FIRST
DEGREE MURDER OF THE FATHER.  AS TO THE DEATH OF HIS MOTHER THE JURY
FOUND PETITIONER GUILTY OF SECOND DEGREE MURDER WHICH DOES NOT CARRY
THE DEATH SENTENCE.  THIS SECOND DEGREE CONVICTION IS NOT BEFORE US. 

FN3  SEE, E.G., BROWN V. MISSISSIPPI, 297 U.S. 278; CHAMBERS V.
FLORIDA, 309 U.S. 227; LISENBA V. CALIFORNIA, 314 U.S. 219; ASHCRAFT V.
TENNESSEE, 322 U.S. 143; MALINSKI V. NEW YORK, 324 U.S. 401; HALEY V.
OHIO, 332 U.S. 596; WATTS V. INDIANA, 338 U.S. 49; STROBLE V.
CALIFORNIA, 343 U.S. 181; STEIN V. NEW YORK, 346 U.S. 156.  THE ABOVE
CASES ILLUSTRATE THE SETTLED VIEW OF THIS COURT THAT COERCED
CONFESSIONS CANNOT BE ADMITTED AS EVIDENCE IN CRIMINAL TRIALS.  SOME
MEMBERS OF THE COURT REACH THIS CONCLUSION BECAUSE OF THEIR BELIEF THAT
THE FOURTEENTH AMENDMENT MAKES APPLICABLE TO THE STATES THE FIFTH
AMENDMENT'S BAN AGAINST COMPULSORY SELF-INCRIMINATION. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR DISSENTING OPINION, SEE POST, P. 584. 

     APPENDIX TO OPINION OF THE COURT. 

           EXCERPTS FROM THE TRANSCRIPT OF THE QUESTIONING OF

           PETITIONER BY     DR. MAX HELFAND, A PSYCHIATRIST, AT

           THE 88TH PRECINCT                    ON JANUARY 13,

           1950. 

"Q.  WHAT DO THEY CALL YOU FOR SHORT?  A. BUDDY." 

"Q.  HOW OLD ARE YOU ABOUT?  A. FIFTY." 

"Q.  ARE YOU MARRIED?  A. YES, SIR." 

"Q.  BUDDY, WILL YOU TELL ME SOMETHING ABOUT YOURSELF.  I'LL TELL YOU
WHAT THE PURPOSE OF MY TALK TO YOU IS.  I WANT TO SEE IF I CAN HELP
YOU.  A. YES, DOCTOR." 

"Q.  I KNOW YOU ARE IN A LITTLE TROUBLE.  WE DO SOMETIMES THINGS THAT
ARE NOT RIGHT, BUT IN A FIT OF TEMPER OR ANGER WE SOMETIMES DO THINGS
THAT WE AREN'T REALLY RESPONSIBLE FOR.  I WANT TO SEE WHETHER OR NOT
YOU DID SOMETHING BUT WHICH YOU'VE DONE IN A FIT OF TEMPER OR ANGER. 
DO YOU UNDERSTAND ME?  A. YES." 

"Q.  WILL YOU TELL ME SOMETHING ABOUT YOURSELF.  WHAT KIND OF A BOY
ARE YOU?  DO YOU HAVE A LOT OF FRIENDS?  A. YES, I HAVE." 

"Q.  I CAN'T HEAR YOU.  A. YES, I HAVE; AND I AM VERY TIRED.  I HAD
TWO HOURS SLEEP.  JUST NOW THEY WOKE ME UP.  THAT'S SINCE TUESDAY. 
WELL, THERE WERE QUESTIONS, AFTER QUESTIONS, AFTER QUESTIONS, BY THE
THOUSANDS." 

"Q.  AREN'T YOU RESTED NOW AFTER TWO HOURS SLEEP.  YOU FEEL PRETTY
GOOD AND YOU LOOK GOOD.  A. WELL I WENT TO THE BARBER AND I FEEL CLEAN
AND EVERYTHING ELSE.  THE ONLY THING IS I AM VERY TIRED.  I DIDN'T FEEL
AS TIRED BEFORE I WENT TO BED AS I DO NOW.  YOU KNOW - (INTERRUPTION): 

"Q.  DO YOU KNOW WE SOMETIMES FEEL TIRED IF WE HAVE SOMETHING ON OUR
MIND.  IT'S WHAT WE CALL MENTAL TENSION." 

"Q.  DO YOU KNOW WE SOMETIMES FEEL TIRED IF WE HAVE SOMETHING ON OUR
MIND.  IT'S WHAT WE CALL MENTAL TENSION.  IF YOU TALK TO ME AND OPEN
UP, YOU'RE GOING TO FEEL RELIEVED.  SPEAK UP AND TELL ME.  DO YOU HAVE
A LOT OF FRIENDS?  A. YES, I HAVE A LOT OF FRIENDS." 

"Q.  DO YOU SOMETIMES GET INTO ARGUMENTS WITH THEM?  A. NO, NOT AS A
RULE.  THE FIRST TIME I WAS SURPRISED.  I ALWAYS CONSIDERED MYSELF AN
EVEN TEMPERED FELLOW - SOCIABLE.  IT'S MY SINUS.  IT'S BOTHERING ME
SOMETHING TERRIBLE.  IT GOT SO IN THE LAST YEAR OR SO.  IT GOT WORSE
AND WORSE AND WORSE." 

"Q.  THAT MADE YOU NERVOUS, DIDN'T IT?  A. I DIDN'T PARTICULARLY
NOTICE IT.  FOR THE PAST TWO YEARS, MY AVERAGE OF WORK HAS BEEN ABOUT
OVER A HUNDRED HOURS EACH WEEK OF WORK FOR TWO YEARS.  NO VACATION OR
ANYTHING LIKE THAT.  THE FIRST TIME WAS ANYBODY NOTICED IT WAS ABOUT -
LET'S SEE - IT'S ABOUT TWO WEEKS AGO I WENT TO THE DOCTOR WITH MY
FATHER." 

"Q.  I SEE.  A. MY SINUS WAS BOTHERING ME SO BAD I USE TO HAVE TO
STOP WORK DURING THE DAY." 

"Q.  WHAT WAS THE MATTER WITH YOUR FATHER?  A. DAD HAD A HEART ATTACK
A COUPLE OF YEARS AGO, BUT I WENT FOR MYSELF." 

"Q.  YOUR FATHER WAS A NERVOUS MAN TOO, WASN'T HE?  A. YES, BUT I
WENT FOR MYSELF.  I DIDN'T THINK I EVER WAS HIGH STRUNG.  I THOUGHT I
WAS THE OPPOSITE.  I THOUGHT I WAS PRETTY CALM." 

"Q.  YOUR FATHER WAS HIGH STRUNG?  A. YES." 

"Q.  FLY OFF THE HANDLE QUICKLY?  A. YES.  SO I WENT TO THE DOCTOR
AND HE EXAMINED MY SINUS.  HE TOOK THE BLOOD PRESSURE.  SO HE SAID TO
ME, "WHEN DID YOU GO TO YOUR DOCTOR?"  THAT WAS - TODAY IS FRIDAY - ONE
WEEK BACK.  THE TUESDAY OF THAT WEEK.  IT'S TEN OR 11 DAYS." 

"Q.  YOU WENT WITH YOUR FATHER?  A. WITH MY FATHER." 

"Q.  DID HE GIVE YOU ANY TREATMENTS?  A. YEAH, HE EXAMINED MY
SINUS." 

"Q.  DID HE TELL YOU TO COME BACK?  A. NO, HE SENT ME DOWN TO HAVE X
RAYS TAKEN.  WHEN HE EXAMINED ME, HE PUT THE LIGHTS UP HERE." 

"Q.  YOU DIDN'T HAVE ANY APPOINTMENT WITH THE DOCTOR AFTER YOUR
VISIT?  DID HE TELL YOU TO COME BACK?  A. OH, YES.  HE SENT ME DOWN TO
HAVE A SET OF X-RAYS MADE.  WE HAD THE X-RAYS MADE.  THEN I CALLED THE
DOCTOR AND HE SAID IT WAS A VERY BAD CASE OF SINUS.  IT WASN'T
SOMETHING NEW.  IT WAS FOR MANY YEARS BACK, AND HE SAID THERE WAS A LOT
OF SCAR TISSUE THERE, AND HE ASKED ME COULD I COME RIGHT OUT.  THAT WAS
LAST SATURDAY.  SO SATURDAY NIGHT, I WORKED.  THAT WAS MY BUSIEST NIGHT
OF THE WEEK.  SO I TOLD HIM I WOULDN'T LIKE TO COME ON SATURDAY, SO HE
SAID HE DOESN'T HAVE ANY PATIENTS ON SUNDAY, COULD I COME MONDAY. 
MONDAY, UNFORTUNATELY, I HAD TO WORK ALL ALONE, SO I TOLD HIM I'D MAKE
IT TUESDAY NIGHT.  SO HE SAID, "YOU COME OVER TUESDAY.  I'LL BE ABLE TO
DO SOMETHING TO STOP THOSE PAINS."  SO WE MADE THE APPOINTMENT FOR
TUESDAY NIGHT AT SIX O'CLOCK." 

"Q.  FOR YOU?  A. YES, AND HE WAS GOING TO OPEN THOSE." 

"Q.  NOT FOR YOUR FATHER?  A. NO, FOR MYSELF.  MY FATHER WAS WITH ME.
HE WAS TO GO WITH ME ON THIS TUESDAY ALSO." 

"Q.  WHY?  DID YOUR DOCTOR TELL YOU TO BRING YOUR FATHER?  A. NO, HE
DIDN'T TELL ME TO BRING HIM." 

"Q.  WHY WAS YOUR FATHER GOING WITH YOU?  A. HE WANTED TO GO WITH ME.
HE WANTED TO SEE IF SOMETHING COULDN'T BE DONE TO STOP THOSE PAINS. 
HE SAID, "LIE DOWN AND CLOSE MY EYES AND SEE IF I COULD STOP THE
BEATING UP THERE." 

"Q.  WHEN THE PAID GOT SO BAD, DIDN'T YOU GET NERVOUS?"  "A.  YES, I
GUESS I DID.  THAT WAS THE FIRST TIME ANYONE EVER TOLD ME THAT I WAS
ILL.  WHEN THE DOCTOR TOOK MY BLOOD PRESSURE, HE SAID, "YOU'RE VERY
IRRITABLE."  AND I SAID, "I DIDN'T THINK SO."  HE TOLD ME, HE SAID,
"YOU'RE GOING TO HAVE TO - YOU CAN'T WORK DAY AND NIGHT.  IT'S TOO
MUCH."  HE SAID, "YOU GOT TO SLOW DOWN." 

"Q.  I WANT YOU TO RECOLLECT AND TELL ME EVERYTHING.  I AM - ." 

"Q.  - (CONTINUED) - GOING TO MAKE YOU REMEMBER AND RECOLLECT BACK
AND BRING BACK THOUGHTS - THOUGHTS WHICH YOU THINK YOU MIGHT HAVE
FORGOTTEN.  I CAN MAKE YOU RECOLLECT THEM.  IT'S ENTIRELY TO YOUR
BENEFIT TO RECOLLECT THEM BECAUSE, YOU SEE, YOU'RE A NERVOUS BOY.  YOU
GOT IRRITABLE AND YOU MIGHT HAVE GOT IN A FIT OF TEMPER.  TELL ME, I AM
HERE TO HELP YOU.  A. I WISH YOU COULD, DOCTOR." 

"Q.  I AM GOING TO PUT MY HAND ON YOUR FOREHEAD, AND AS I PUT MY HAND
ON YOUR FOREHEAD, YOU ARE GOING TO BRING BACK ALL THESE THOUGHTS THAT
ARE COMING TO YOUR MIND.  I AM GOING TO KEEP MY HAND ON YOUR FOREHEAD
AND I AM GOING TO ASK YOU QUESTIONS, AND NOW YOU WILL BE ABLE TO TELL
ME.  WHAT HAPPENED MONDAY NIGHT?  WHERE DID YOU SLEEP?  A. LAST MONDAY
NIGHT?" 

"Q.  THAT'S RIGHT.  A. I WORKED MONDAY NIGHT." 

"Q.  AFTER YOU WORKED, WHERE DID YOU SLEEP?  WHERE DID YOU GO TO
SLEEP?  A. TO THE APARTMENT ON 10TH STREET." 

"Q.  WHAT TIME DID YOU SLEEP TO, OR GET UP IN THE MORNING?  A. SHE
GOT UP ABOUT 6:30." 

"Q.  WELL, AFTER SHE LEFT THE HOUSE, THEN YOU COULDN'T SLEEP.  THEN
YOU GOT DRESSED?  YOUR THOUGHTS ARE COMING BACK TO YOU.  ANSWER ME.
COME ON, YOU CAN ANSWER ME.  YOU COULDN'T GO BACK TO BED.  YOU DIDN'T
GO BACK TO BED.  AFTER SHE LEFT, YOU GOT DRESSED, DIDN'T YOU?  A. YES,
I GOT DRESSED. 

"Q.  WHAT DID YOU DO AFTER YOU GOT DRESSED?  COME ON, NOW.  YOUR
THOUGHTS ARE COMING BACK TO YOU.  COME ON.  COME ON, ANSWER ME.  A. I
WENT TO BROOKLYN." 

"Q.  YOU WENT TO BROOKLYN.  WHERE DID YOU GO TO BROOKLYN?  A. TO MY
MOTHER'S HOUSE." 

"Q.  TO YOUR MOTHER'S HOUSE.  WHEN YOU CAME TO YOUR MOTHER - NOW, ALL
YOUR THOUGHTS ARE BEGINNING TO CLEAR UP.  NOW, EVERTHING IS CLEAR IN
YOUR MIND.  YOU CAME TO YOUR MOTHER.  WHO OPENED THE DOOR?  A.  MY
MOTHER." 

"Q.  WHAT DID YOU SAY?  A. I SAID, "HELLO, TEDDY." 

   *         *         *         *         * 

"Q.  ALL RIGHT.  NOW, YOU ARE IN YOUR HOUSE.  YOUR THOUGHTS ARE
COMING BACK TO YOU RIGHT AWAY.  A.  DOCTOR, CAN I HAVE A DRINK OF
WATER, MY MOUTH IS VERY DRY." 

"Q.  A DRINK OF WATER?  I'LL GET YOU A DRINK OF WATER.  A. (PAUSE)." 

"Q.  ALL RIGHT.  O.K. NOW?  A. MY MOUTH IS DRY.  I'M NOT THIRSTY. 
JUST MY MOUTH IS DRY.  I'M NOT THIRSTY." 

"Q.  CONCENTRATE AND LOOK AT ME.  NOW YOU CAME HOME.  YOUR MOTHER MET
YOU AT THE DOOR.  YOU SAID, 'HELLO, TEDDY,' RIGHT?  A. THAT'S RIGHT." 

"Q.  WHAT DID SHE SAY TO YOU?  A. SHE SAID TAKE OFF MY COAT, IT'S ALL
WET." 

"Q. WHAT DID YOU DO?  A. I TOOK THE COAT OFF." 

"Q.  NOW, YOU ARE BACK IN YOUR APARTMENT, SEE.  YOUR THOUGHTS ARE
CLEAR NOW.  WHAT DID YOU DO AFTER YOU TOOK OFF YOUR RAINCOAT?  A. SHE
TOLD ME, "COME AND HAVE SOME TEA." 

"Q.  SHE TOLD YOU WHAT?  A. 'COME AND HAVE A CUP OF TEA.  IT WILL
WARM YOU UP.'" 

"Q.  WHAT DID YOU DO?  A. DAD WAS HAVING BREAKFAST." 

"Q.  WHERE WAS DAD SITTING?  A. AT THE END OF THE TABLE." 

"Q.  WHERE DID YOU SIT DOWN?  A. BETWEEN THEM." 

"Q.  BETWEEN WHOM?  A. MOM AND POP." 

"Q.  BETWEEN MOM AND POP?  A. THAT'S RIGHT." 

"Q.  WHERE WAS MOM SITTING?  A. NEXT TO THE KITCHEN SINK." 

"Q.  YOU WERE SITTING BETWEEN MOM AND POP, RIGHT?  A. THAT'S RIGHT." 

"Q.  WHAT DID YOU DO THEN?  A. I SAT DOWN." 

"Q.  YEAH, WHAT DID YOU DO?  WHAT DID YOU DO WHEN YOU SAT DOWN.  COME
ON, SPEAK UP.  DON'T BE AFRAID NOW.  WE'RE WITH YOU?  WE'RE GOING TO
HELP YOU.  YOU'RE GOING TO FEEL LOTS BETTER AFTER YOU TALK TO ME.  A.
GEE, I HOPE SO." 

"Q.  I CAN'T HEAR YOU?  A. THE ARGUMENT STARTED ALL OVER AGAIN." 

"Q.  THE ARGUMENT WITH YOUR FATHER?  A. YES." 

"Q.  DID YOUR MOTHER ARGUE WITH YOU, TOO?  A. NO." 

"Q.  WHAT WAS THE ARGUMENT ABOUT?  A. THE BUSINESS - HIS BUSINESS." 

"Q.  WHOSE BUSINESS?  A. OUR BUSINESS." 

"Q.  WHAT DID YOUR FATHER TELL YOU - SPEAK UP.  A. HE TOLD ME BOTH OF
US DIDN'T CARE WHETHER HIS BUSINESS WAS GOOD OR BAD.  I TOLD HIM OUR
BUSINESS WAS GETTING PROSPEROUS." 

"Q.  WHAT DID YOU SAY ABOUT THAT?  A. HE TOLD ME IT WASN'T SO." 

"Q.  WAS IT A VIOLENT ARGUMENT?  DID YOUR FATHER LOSE HIS TEMPER?  A.
YES, IT GOT MORE HEATED." 

"Q.  AS IT GOT MORE HEATED, WHAT HAPPENED THEN?  DON'T BE AFRAID,
SPEAK UP.  COME ON, WE'LL HELP YOU.  A. HE ARGUED MORE AND MORE." 

"Q.  YOU ARGUED MORE AND MORE.  THEN WHAT?  A. I TOLD HIM, 'POP, WHY
DON'T YOU STAY HOME?  BE SATISFIED.  OUR BUSINESS IS GETTING GOOD.  YOU
DON'T HAVE TO WORK THIS WAY.'" 

"Q.  YES.  A. HE SAYS, 'I'M GOING TO WORK.  I'M GOING TO HAVE MY OWN
BUSINESS.'  HE SAYS, "I'D RATHER MAKE A STINKING DOLLAR THAN MAKE IT
FROM SOMEBODY ELSE.'  SO MY MOTHER STARTED TO GET INTO THE ARGUMENT." 

"Q.  WHAT DID SHE SAY?  A. SHE TOLD HIM, 'WHY DON'T YOU STAY HOME. 
WHY DON'T YOU DO WHAT YOUR SON SAYS.'" 

"Q.  GO AHEAD, SPEAK UP.  A. I'M TRYING TO THINK, DOCTOR." 

"Q.  IT'S COMING ALL CLEAR TO YOU NOW.  I'VE GOT MY HAND ON YOU. 
I'LL MAKE YOU THINK BACK.  ALL YOUR THOUGHTS ARE COMING BACK TO YOU. 
DID YOUR FATHER HIT YOU?  A. NO." 

"Q.  WHAT HAPPENED NEXT?  SPEAK UP.  IT'S COMING CLEAR NOW.  YOU WILL
FEEL LOTS BETTER AFTER YOU TELL ME.  IT'S ALL IN A FIT OF ARGUMENT. 
SPEAK UP.  SPEAK UP.  IT'S COMING CLEAR TO YOU.  I HAVE MY HAND ON YOUR
HEAD.  WHAT DID YOU DO?  COME ON.  A. I TOLD HIM THAT WE WEREN'T GOING
TO LET HIM WORK ANYMORE." 

     *         *         *    *         * 

"Q.  THEN?  A. THAT HE WOULD BE SO MUCH BETTER OFF LETTING US TAKE
CARE OF IT.  TWENTY-FIVE PER CENT WE WOULD GIVE HIM FROM OUR BUSINESS
WOULD BE BETTER THAN HIS OWN." 

"Q.  THAT'S RIGHT.  GO AHEAD.  COME ON, YOU'RE GOING TO FEEL LOTS
BETTER.  WE'RE WITH YOU ONE HUNDRED PER CENT.  THEN WHAT HAPPENED?  A.
HE SAID HE WOULDN'T TAKE IT." 

"Q.  THAT'S RIGHT.  A. THAT WE WERE TRAITORS TO HIM.  HE SAID MY
PARTNER WAS A LOUSE; THAT HE TOOK HIS HUNDRED DOLLARS A WEEK AND HE
DIDN'T DO ANYTHING FOR IT." 

"Q.  YES.  A. IT WAS LIKE ROBBING HIM OF A HUNDRED A WEEK." 

"Q.  THAT'S RIGHT, SPEAK UP.  A. MY MOTHER INTERFERED AND SAID, 'BILL
WAS A NICE FELLOW AND A HARD WORKING FELLOW.'  HE SAID, 'I'M THE
BOSS.'  HE TOLD MY MOTHER, 'YOU SHUT UP.'  HE TOLD MY MOTHER, 'GO SIT
DOWN.'  HE PUSHED HER IN THE CHAIR." 

"Q.  HE PUSHED HER IN THE CHAIR?  A. YES." 

"Q.  THAT'S THE TIME YOU LOST YOUR TEMPER?  A. NO." 

"Q. GO AHEAD, WHAT HAPPENED?  A. I TOLD HIM 'POP, THINK IT OVER. 
WE'RE SILLY TO ARGUE.  IT WILL DO US NO GOOD.'  HE SAID, 'FINISH YOUR
DAMN TEA.  I'M GOING OUT AND GET MY PAPER.'" 

"Q.  YES.  A. HE SAYS, 'WE'LL GO TO THE BANK,' AND HE SAYS, 'I'LL GO
TO BROADWAY AND PICK UP THE BOX TOPS AND YOU'LL GO BACK AND YOU'LL ALL
GET OUT OF THIS PLACE;' AND HE SAYS, 'IF YOUR MOTHER AGREES WITH YOU,
SHE CAN GO WITH YOU.'" 

"Q.  YES.  A. SO HE WENT OUT." 

"Q.  DID HE PUT HIS COAT ON?  A. YES." 

"Q.  HE WENT OUT?  A. YES." 

"Q.  SO THEN WHAT HAPPENED?  A. MOM SAID, 'DON'T GET EXCITED.'" 

"Q.  YOU WERE VERY EXCITED?  A. YES." 

"Q.  GO AHEAD.  COME ON.  TELL ME WHAT HAPPENED THEN.  COME ON, NOW,
SPEAK UP.  YOU'RE GOING TO FEEL LOTS BETTER.  WE'RE WITH YOU A HUNDRED
PER CENT.  COME ON.  COME ON, WE'LL HELP YOU.  A. I CAN'T DOC." 

"Q.  YES, YOU CAN.  ALL THESE THOUGHTS ARE COMING BACK TO YOU.  I
HAVE MY HAND ON YOUR HEAD.  WHEN YOUR FATHER WENT OUT, YOUR MOTHER
TALKED TO YOU.  THEN WHAT HAPPENED?  WHAT DID YOU TO TO YOUR MOTHER. 
COME ON.  SPEAK UP.  COME ON.  ALL THESE THOUGHTS ARE COMING TO YOU
NOW.  A. I CAN'T THINK." 

"Q.  SURE YOU CAN.  LOOK AT ME.  OPEN YOUR EYES.  NOW YOU KNOW WHAT
HAPPENED.  LOOK AT ME.  I KNOW YOU KNOW WHAT HAPPENED.  A. I CAN'T
THINK." 

"Q.  SURE YOU CAN.  COME ON NOW.  DON'T BE AFRAID.  YOUR CONSCIENCE
WILL BE CLEAR.  GOD WILL BE WITH YOU, AND EVERYBODY WILL HELP YOU IF
YOU TELL THE TRUTH.  EVERYBODY WILL HELP YOU, BUT NOBODY LIKES A LIAR,
NOT EVEN GOD.  COME ON NOW.  TELL THE TRUTH.  A. I CAN'T THINK."    "Q.
YOUR FATHER WENT FOR THE PAPER; THEN YOU HIT YOUR MOTHER, DIDN'T YOU? 
WITH WHAT DID YOU HIT - WITH A HAMMER?  YOUR THOUGHTS ARE COMING BACK
TO YOU.  WHAT DID YOU USE TO HIT YOUR MOTHER WITH?  A.  I LOVED MY
MOTHER." 

"Q.  I KNOW YOU DID.  YOU LOST YOUR TEMPER.  DON'T BE AFRAID.  A LOT
OF PEOPLE DO THINGS THAT THEY ARE NOT RESPONSIBLE FOR WHILE IN A FIT OF
TEMPER.  YOU SEE?  A. MY MOTHER WAS THE ONLY THING IN THE WORLD." 

"Q.  THAT'S RIGHT.  WHAT DID YOU HIT HER WITH?  COME ON, NOW.  SPEAK
UP.  A. I WAS SO MAD." 

"Q.  YOU WERE VERY MAD.  A. I SAID HE'S NOT GOING TO TREAT MY MOTHER
THIS WAY.  HE KILLED MY BROTHER." 

"Q.  YES.  HE KILLED:  A. MY BROTHER WOULD HAVE LIVED MANY YEARS. 
THE WAY MY FATHER MADE HIM WORK - ." 

"Q.  THAT'S RIGHT.  A. I SAID HE'S NOT GOING TO KILL MY MOTHER AND
HE'S NOT GOING TO KILL ME. THE ONLY WAY WE CAN STOP HIM.  HE'S GOT TO
BE STOPPED.  HE CAN'T BE THE BOSS." 

"Q.  GO AHEAD.  HE'S GOT TO BE STOPPED, YOU SAID.  SO?  A. MY MOTHER
ALWAYS SAID SHE WANTED TO BE WITH HIM." 

"Q.  YES.  A. DOC, I CAN'T TAKE IT." 

"Q.  COME ON, YES, YOU CAN.  SPEAK UP.  SO YOU THOUGHT IT WOULD BE
THE RIGHT THING TO DO WHAT?  COME ON.  YOU STARTED - ." 

"Q.  (CONTINUED) NOW.  SPEAK UP.  EVERYBODY WILL HELP YOU.  YOU'RE A
NICE FELLOW.  YOU'RE A MAN NOW.  YOU DON'T WANT TO BE A COWARD. 
EVERYBODY WILL HELP YOU.  YOU WERE EXCITED.  YOU DID IT IN A FIT OF
ANGER.  A. I WAS NEVER A COWARD." 

"Q.  I CAN'T HEAR YOU.  A. I WAS NEVER A COWARD." 

"Q.  COME ON, SPEAK UP.  YOUR MOTHER SAID SHE WANTED TO BE WITH YOUR
FATHER.  SO WHAT DID YOU DO?  A.  I CAN'T REMEMBER." 

"Q.  SURE YOU CAN.  SPEAK UP NOW.  A. I CAN'T." 

"Q.  LOOK AT ME.  LOOK AT ME.  A. YES, DOC." 

"Q.  YOUR THOUGHTS ARE COMING INTO YOU.  DON'T BE AFRAID BUDDY. 
WE'RE ALL WITH YOU ONE HUNDRED PER CENT.  WE'LL HELP YOU.  WE'LL HELP
YOU EVERY WAY POSSIBLE.  I'M YOUR DOCTOR.  I'M GOING TO HELP YOU.  A. I
HOPE YOU CAN." 

"Q.  I KNOW I CAN.  IF YOU WILL BE HONEST WITH ME, I'LL HELP YOU. 
EVERYBODY THINKS A LOT OF YOU.  YOU'RE A NICE MAN.  A. DOCTOR, CAN I
HAVE SOME WATER, PLEASE." 

"Q.  SURE HAVE SOME WATER.  A. YES, SIR." 

"Q.  COME ON, TAKE SOME MORE WATER.  A. I'M NOT THIRSTY.  IT'S JUST
MY MOUTH IS DRY." 

"Q.  THAT'S BECAUSE YOU'RE NERVOUS, YOU SEE.  YOUR CONSCIENCE IS
BOTHERING YOU.  AFTER YOU TELL ME AND TELL ME THE TRUTH, THEN YOU WILL
FEEL RELIEVED.  WE'RE ALL WITH YOU ONE HUNDRED PER CENT.  THEN YOU WILL
BE FINE.  NOW, LET ME PUT MY HAND ON YOUR FOREHEAD AGAIN.  A. IT HURTS
SO." 

     *         *         *         *         * 

"Q.  SURE YOU CAN THINK.  ONLY COWARDS CAN'T THINK.  YOU AREN'T A
COWARD.  YOU CAN SPEAK UP.  YOU KNOW - YOU KNOW WHAT YOU DID.  COME ON
NOW.  COME ON.  I HAVE MY HAND ON YOUR FOREHEAD AND YOUR THOUGHTS ARE
COMING BACK TO YOU.  COME ON NOW.  NOW, YOUR THOUGHTS ARE COMING BACK
TO YOU?  A. NO, DOC, THEY DON'T. 

"Q.  THEY'RE COMING BACK TO YOU.  CONCENTRATE ON WHAT I SAY.  THEY'RE
COMING RIGHT IN AGAIN.  YOUR MOTHER SAID - YOU SAID HE HAD TO BE
STOPPED.  WHAT DID YOU DO?  A. I DON'T KNOW, DOC." 

"Q.  YOU KNOW YOU HIT YOUR MOTHER FIRST.  YOU HIT YOUR MOTHER ON THE
HEAD.  SPEAK UP.  WHAT DID YOU DO?  A. I DON'T KNOW, DOCTOR." 

"Q.  YES, YOU DO.  SPEAK UP, NOW.  SPEAK UP.  SEE, I CAN MAKE YOU
TALK VERY TRULY.  I CAN GIVE YOU AN INJECTION NOW.  IT'S MUCH BETTER IF
YOU TELL IT TO ME THIS WAY.  COME ON, NOW, SPEAK UP.  A. I CAN'T THINK,
DOCTOR." 

"Q. JUST RELAX AND CONCENTRATE AND LISTEN TO ME.  SPEAK UP.  WHAT DID
YOU SAY?  YOU HAD HIS WHAT?   YOU HAD HIS WHAT?  WHAT ABOUT YOUR HAND
BACK?  A. IT'S ALL CONFUSED." 

"Q.  SURE IT'S CONFUSED BECAUSE YOU DON'T WANT TO THINK.  YOU ARE
FIGHTING.  YOU HAVE A CONSCIENCE.  AS SOON AS YOU TALK TO ME YOUR
CONSCIENCE WILL BE RELIEVED.  SEE, YOU SHOW TENSION NOW.   YOU'RE PALE;
YOUR MOUTH IS DRY.  YOU HAVE A CONFLICT.  AS SOON AS YOU TALK TO ME
EVERYTHING WILL BE RELIEVED.  YOU ARE GOING TO FEEL LOTS BETTER.  COME
ON.  A. DOC, I'M TRYING TO THINK." 

"Q.  I'M TRYING TO HELP YOU IF YOU TELL ME THE TRUTH.  I AM ON YOUR
SIDE.  I AM GOING TO HELP YOU ALL I CAN.  COME ON, NOW, BUDDY.  BE A
NICE FELLOW.  PUT YOUR HAND HERE.  ALL RIGHT.  TELL ME WHAT HAPPENED. 
COME ON.  TELL ME WHAT HAPPENED.  YOUR FATHER WENT AWAY, AND YOU SAID
HE HAD TO BE STOPPED.  WHAT DID YOU TAKE.  WHAT DID YOU TAKE IN YOUR
HAND?  SPEAK UP, BUDDY.  I CAN'T HEAR YOU.  DON'T BE AFRAID NOW.  A.
I'M NOT AFRAID, DOC." 

"Q.  DON'T BE AFRAID.  WE'RE ALL WITH YOU.  WE WANT TO HELP YOU.  A.
I'M NOT AFRAID." 

"Q.  I CAN'T HEAR YOU.  SPEAK UP.  A. I'M NOT AFRAID, DOC.  I'M NOT
AFRAID, DOC.  I WANT YOU TO HELP ME." 

"Q.  DID YOU FINISH YOUR TEA?  A. I FINISHED THE TEA." 

"Q.  YOU FINISHED THE TEA.  SO WHAT HAPPENED THEN?  WHAT DID YOU DO
TO YOUR MOTHER?  CONCENTRATE - JUST CLOSE YOUR EYES AND CONCENTRATE. 
A. I CAN'T." 

"Q.  ALL RIGHT, BUDDY, YOU CAN THINK NOW.  YOUR HEAD IS ALL CLEAR
NOW.  TRY AND GET IT CLEAR.  A. IT'S NOT CLEAR." 

"Q.  JUST RELAX NOW AND EVERYTHING WILL COME BACK TO YOU.  YOU KNOW
WHAT HAPPENED.  EVERYBODY - I MEAN, THESE PEOPLE KNOW WHAT HAPPENED. 
IT'S MUCH BETTER FOR YOU TO COME CLEAN AND PLAY BALL.  EVERYBODY THINKS
YOU ARE TRYING TO HIDE SOMETHING."  "A.  I DON'T WANT TO HIDE
ANYTHING." 

"Q.  THEN SPEAK UP AND TELL ME.  YOU TOLD ME SO FAR - YOU KNOW YOU
DID IT - YOU WERE IN THERE.  DID YOUR MOTHER START A FIGHT WITH YOU? 
A. NO." 

"Q.  DID SHE CONTINUE THE ARGUMENT?  A. NO, MY MOTHER WAS IN
AGREEMENT WITH ME." 

"Q.  BUT YOU HAD A LITTLE ARGUMENT ABOUT GOING WITH YOUR FATHER, IS
THAT WHAT YOU SAID?  A. NO." 

"Q.  WHAT THEN?  A. I SAID, "MOM, IF HE DON'T STOP, I'LL KILL HIM." 

"Q.  I DIDN'T HEAR THAT.  WHAT DID YOU SAY?  A. I TOLD HER, I SAID,
"MOM, IF HE DON'T STOP THE ARGUMENTS WITH ME, I'LL KILL HIM." 

"Q.  WHAT DID SHE SAY?  A. SO SHE SAID, "CALM DOWN.  HERE, TAKE A
DRINK OF WATER."  SO I SAID, "JUST WAIT UNTIL HE COMES BACK.  WE'LL
FINISH THIS ONCE AND FOR ALL." 

"Q.  SO.  A. SO SHE SAID, "HERE, TAKE A DRINK OF WATER." 

"Q.  GO AHEAD.  I'M WITH YOU.  DON'T BE AFRAID.  SO.  SPEAK UP.  SO,
WHAT DID YOU DO THEN.  NOW, YOU KNOW WHAT YOU DID.  YOU'VE GOT A STORY
ON YOUR MIND.  COME ON.  YOU CAN SPEAK NOW.  COME ON, BUDDY, SPEAK." 
"A.  DOC, I'M TRYING SO HARD." 

"Q. I KNOW YOU'RE TRYING.  I'M TRYING WITH YOU BECAUSE YOU'RE A NICE
FELLOW.  A. I JUST CAN'T THINK." 

"Q.  ALL RIGHT, GET TO THE PART WHERE YOU SAID, "I'LL KILL HIM."  SO
THEN WHAT HAPPENED.  YOU WAITED UNTIL HE CAME BACK.  COME ON.  A. DOC,
I CAN'T." 

"Q.  SPEAK UP, I CAN'T HEAR YOU.  ALL RIGHT, WHAT DID YOUR MOTHER SAY
WHEN YOU SAID, "WHEN HE COMES BACK, I'LL KILL HIM."  WHAT DID YOUR
MOTHER SAY?  DID YOU TAKE A DRINK OF WATER?  I CAN'T HEAR YOU.  A. I
DON'T REMEMBER." 

"Q.  I SEE.  SO WHAT DID YOU DO THEN?  A. I DON'T KNOW." 

"Q.  NOW, YOU THINK.  ALL YOUR THOUGHTS WILL COME BACK TO YOU.  JUST
THINK.  JUST RELAX.  ALL YOUR THOUGHTS WILL COME BACK TO YOU.  I HAVE
MY HAND ON YOUR HEAD.  YOUR THOUGHTS ARE COMING BACK TO YOU.   IT'S
MUCH BETTER FOR YOU.  YOU WILL GET ALONG MUCH BETTER AND YOU WILL FEEL
BETTER.  I CAN'T HEAR YOU.  WHAT DID YOU SAY?  A. WILL I EVER FEEL
BETTER?" 

"Q.  YOU WILL IF YOU TELL ME THE TRUTH.  YOU WON'T IF YOU DON'T.  YOU
MAY AS WELL TELL US AND WE'LL WORK WITH YOU.  WE'LL PLAY BALL WITH
YOU.  WE'LL HELP YOU IF WE CAN.  IT WILL MAKE YOU FEEL BETTER.  COME
ON, NOW, SPEAK UP.  YOU TOLD YOUR MOTHER, "WAIT UNTIL HE COMES BACK. 
I'LL KILL HIM."  "A.  SHE SAID, 'HERE TAKE A DRINK OF WATER.'  DOC, I
CAN'T REMEMBER." 

"Q.  SURE YOU CAN.  OPEN YOUR EYES.  DON'T SAY YOU CAN'T.  JUST LOOK
AT ME.  A. I JUST DON'T REMEMBER." 

"Q.  SURE YOU CAN.  A. NO, I CAN'T THINK, DOCTOR." 

"Q.  BUDDY, IT DOESN'T HELP YOU IF YOU SAY YOU CAN'T THINK WHEN YOU
KNOW YOU DID IT, SO YOU MAY AS WELL TELL US AND GET OUR HELP.  IF YOU
DON'T TELL US AND GET OUR HELP, I'LL WASH MY HANDS OF YOU.  ALL RIGHT,
CLOSE YOUR EYES AND THINK HARD.  JUST CLOSE YOUR EYES NOW AND YOUR
THOUGHTS WILL COME BACK TO YOU.  ALL YOUR THOUGHTS ARE COMING BACK TO
YOU.  YOU'RE A NICE FELLOW AND YOUR'RE EXCITED; AND IN A FIT OF TEMPER
YOU SAID YOU WERE GOING TO KILL HIM WHEN HE COMES BACK.  WHAT DID YOUR
MOTHER DO?  DID SHE TRY TO HOLD YOU?  A. NO." 

"Q.  I CAN'T HEAR YOU.  DID SHE HOLD YOU?  A. NO." 

"Q.  WHAT DID SHE DO?  A. SHE WANTED TO GIVE ME A DRINK OF WATER. 
SHE TOOK THE CUP AND STARTED TO RUN THE WATER." 

"Q.  SHE STARTED WHAT?  A. SHE STARTED TO RUN THE WATER." 

"Q.  YES.  SHE WAS FACING THE SINK?  A. SHE WAS FACING THE SINK. 

"Q.  I CAN'T HEAR YOU?  A. SHE WAS FACING THE SINK." 

"Q.  SO WHAT DID YOU DO.  SPEAK UP.  I'LL POSITIVELY HELP YOU IF I
CAN.  I'M WITH YOU ONE HUNDRED PER CENT.  I'M GOING TO HELP YOU. 
YOU'RE GOING TO FEEL FINE.  YOUR CONSCIENCE WILL BE CLEAR AND
EVERYTHING WILL BE FINE.  DON'T HIDE ANYTHING.  YOU DID IT IN A FIT OF
TEMPER.  YOUR MOTHER WENT TO THE SINK TO GIVE YOU SOME WATER.  SO YOU
DID WHAT?  YOU WENT UP TO HER?  A. I WAS STANDING THERE WAITING FOR HIM
TO COME BACK.  I PICKED UP THE HAMMER." 

"Q.  YOU PICKED UP THE HAMMER?  A. YEAH." 

"Q. I DIDN'T HEAR THAT.  WHAT DID YOU SAY?  A. I PICKED UP THE
HAMMER." 

"Q.  YES  ...  SAY IT.  SAY IT.  A. I SAID, 'HE KILLED MY BROTHER,
HE'LL KILL MY MOTHER, AND HE'LL KILL ME.'" 

"Q.  YES.  YOU PICKED UP THE HAMMER.  WHERE WAS THE HAMMER?  A. IT
WAS ON THE DISH CLOSET." 

"Q.  ON THE DISH CLOSET?  A. YEAH." 

"Q.  IN WHAT ROOM?  A. IN THE KITCHEN." 

"Q.  WHAT KIND OF HAMMER WAS IT?  A. A BIG HAMMER." 

"Q.  WAS IT A CARPENTER'S HAMMER?  A. IT WAS A BIG HAMMER." 

"Q.  A BIG HAMMER.  YOU PICKED IT UP AND THEN WHAT?  DON'T BE
AFRAID.  SAY IT.  A. I CAN'T, DOC." 

"Q.  I KNOW YOU CAN'T.  I KNOW IT'S HARD, BUT SAY IT.  WE'RE WORKING
WITH YOU.  YOU'RE PALE AND DRY.  YOU'RE NERVOUS.  JUST LET ME PUT MY
HAND ON YOUR HEAD AND YOUR THOUGHTS WILL COME IN.  YOU PICKED UP THE
HAMMER AND YOUR MOTHER WAS STANDING NEAR THE SINK - FACING THE SINK -
LETTING THE WATER RUN; AND YOU PICKED UP THE HAMMER AND YOU SAID - YOU
SAID, YOUR FATHER, HE KILLED MY SON.  YOU SAID HE IS GOING TO KILL US
ALL.  YOU REMEMBER THAT, DON'T YOU?  COME ON, SAY IT.  SPEAK UP, COME
ON.  YOU MOVE YOUR LIPS.  YOU KNOW YOU WANT TO SAY IT.  SAY IT A LITTLE
LOUDER.  COME ON, BUDDY.  WE'LL HELP YOU.  DON'T BE AFRAID NOW.  A. I
CAN'T HELP YOU." 

?Q.  I'LL HELP YOU, BUDDY.  I AM WITH YOU ONE HUNDRED PER CENT, BUT
YOU GOT TO PLAY BALL WITH ME. YOU KNOW SHE WAS STANDING BY THE SINK. 
YOU GOT TO TELL ME THE TRUTH.  A. NO, SHE WASN'T STANDING." 

"Q.  WHAT WAS SHE DOING?  A. SHE WAS SITTING." 

     *         *        *         *         * 

"Q.  YOUR MOTHER WAS SITTING AT THE END OF THE TABLE; JOE YOU WILL
HAVE TO SPEAK LOUDLY, I CAN'T HEAR YOU?  A. I GOT UP FROM THE TABLE." 

"Q.  AND YOU TOOK A DRINK OF WATER AND YOU HELD THE HAMMER IN YOUR
HAND.  WHAT DID YOU DO THEN?  A.  I CAN'T THINK ANY MORE WHAT I DID." 

"Q.  IT WILL COME BACK TO YOU?  A. DOC, CAN I SEE THE RESULTS?" 

"Q.  I CAN'T TELL YOU HOW YOU THINK YOU KILLED HER?  A. I MUST HAVE;
WHO ELSE COULD HAVE." 

"Q.  I WANT YOU TO RECOLLECT YOUR THOUGHTS; TELL ME ALL THE DETAILS. 
I CAN MAKE YOU TALK?  A. I TRIED FOR TWO DAYS; THIS THING CAME LAST
NIGHT.  EVERYBODY WAS ASKING ME QUESTIONS.  IT DIDN'T DO ANY GOOD TO
ASK ME; I COULDN'T ANSWER THEM." 

"Q.  THAT'S RIGHT?  A. EVERYBODY WAS NICE TO ME." 

"Q.  EVERYBODY WAS NICE TO YOU?  A. YES." 

"Q.  NOBODY HURT YOU, DID THEY?  A. NO." 

"Q.  NOBODY FORCED YOU TO ANSWER ANYTHING?  A. NO, I JUST CAN'T
REMEMBER." 

     *         *         *         *         * 

"Q.  COME I AM HOLDING MY HAND ON YOUR FOREHEAD; I AM MAKING YOUR
THOUGHTS CLEAR.  YOU KNOW EXACTLY WHAT HAPPENED?  A. DOC.  I CAN'T
THINK.  I MUST HAVE DONE IT BUT HOW. 

"Q.  WHAT DID YOU SAY?  A. I SAID I MUST HAVE DONE IT BUT HOW. 

"Q.  YOU JUST TOLD ME, YOU HAD YOUR HAND ON YOUR HEAD?  A. I DON'T
REMEMBER.  FROM THEN ON, I CAN'T THINK OF ANYTHING. 

"Q.  ALRIGHT RELAX AND THINK.  YOU STAY HERE UNTIL YOUR THOUGHTS COME
BACK TO YOU.  DID YOU START ANY ARGUMENT WITH YOUR MOTHER?  WHEN YOUR
FATHER WENT DOWN FOR THE PAPER, DID YOU START AN ARGUMENT WITH YOUR
MOTHER, AFTER SHE GAVE YOU THE WATER?  A. NO, I ALWAYS BABIED MY
MOTHER.  (NOISE). 

"Q.  DID YOU HAVE IT IN MIND THAT YOUR MOTHER WOULD DIE WITH YOUR
FATHER BECAUSE YOU ALWAYS WANTED IT?  A. SHE ALWAYS SAID THAT. 

"Q.  SHE ALWAYS SAID WHAT?  A. THAT SHE WANTED TO DIE WITH HIM. 

"Q.  YOU HAD IT ON YOUR MIND, DIDN'T YOU?  A. I DON'T KNOW DOC. 

"Q.  THINK AND TELL ME; JUST THINK AND TELL ME.  A. SHE WAS JUST LIKE
A BABY TO ME. 

"Q.  JUST RELAX AND YOUR THOUGHTS WILL COME BACK TO YOU BECAUSE I
HAVE MY HAND ON YOUR FOREHEAD.  EVERYTHING WILL BE FINE.  IF YOU TELL
US ALL THE DETAILS WE WILL KNOW THE WHOLE STORY OF WHAT HAPPENED.  YOU
PICKED UP THE HAMMER AND YOUR MOTHER WAS SITTING ON THE CHAIR, YOU
SAID, AND YOU WERE STANDING AT THE SINK?  A. I WAS STANDING BY THE
STOVE. 

"Q.  YOU WERE STANDING BY THE STOVE, EXCUSE ME I MADE A MISTAKE. 
WHAT DID YOU DO WITH THE HAMMER, YOU SWUNG IT?  A. I MUST HAVE DOC.
NOBODY ELSE COULD HAVE DONE IT. 

"Q.  NOBODY ELSE COULD HAVE YOU SAY YOU MUST HAVE SWUNG IT?  A. I
MUST HAVE. 

"Q.  AND YOUR MOTHER FELL DOWN.  HOW MANY TIMES DID YOU SWING IT.
YOU MUST TELL ME THAT.  HOW MANY TIMES DID YOU SWING THE HAMMER?  A. I
DON'T KNOW DOCTOR. 

"Q.  WAS IT ONCE OR TWICE OR THREE TIMES?  A. I DON'T KNOW. 

"Q.  HOW MANY TIMES?  A. I WAS NEVER ANGRY WITH MY MOTHER. 

"Q.  WERE YOU ANGRY WITH YOUR FATHER?  A. I WAS VERY ANGRY WITH HIM. 

"Q.  AND YOU FELT THAT YOUR MOTHER SHOULD DIE AT THE SAME TIME WITH
YOUR FATHER?  A. I DON'T KNOW.    "Q.  WHAT DID YOU DO THEN, WHEN YOUR
FATHER CAME IN.  YOU HEARD HIM COME UP.  WHAT FLOOR DO YOU LIVE ON?  A.
STREET FLOOR; I WAS IN THE BACK. 

"Q.  AND YOUR FATHER OPENED THE DOOR TO THE APARTMENT, WHEN HE CAME
BACK WITH THE PAPER?  A. I DON'T KNOW, DOCTOR. 

"Q.  THINK, THINK.  A. I DON'T KNOW WHY, I CAN'T THINK. 

"Q.  I AM HELPING YOU TO THINK, IF YOU WANT TO YOU CAN.  THERE IS
ONLY A QUESTION OF WANTING.  A. I WANT TO SO BAD. 

"Q.  IF YOU WANT TO YOU CAN BECAUSE YOU KNOW EVERYTHING THAT
HAPPENED.  WE KNOW THAT YOU ARE A NICE MAN AND I AM TRYING TO HELP
YOU.  WHEN YOUR FATHER CAME BACK WITH THE PAPER; NOW HERE YOU ARE, YOU
ARE IN THE APARTMENT AND YOUR FATHER CAME BACK WITH THE PAPER?  A. I
CAN'T REMEMBER, DOCTOR. 

"Q.  SURE YOU CAN.  A. I DON'T REMEMBER, DOCTOR. 

"Q.  SURE YOU CAN; TRY HARD.  A. I THOUGHT SOMETIMES LAST NIGHT.  I
TOLD THE CAPTAIN LAST NIGHT I CAN'T REMEMBER.  THAT I WOULD HAVE TO
REMEMBER. 

"Q.  WHY DO YOU HAVE TO REMEMBER?  A. BECAUSE IF I CAN'T REMEMBER
THESE THINGS HERE, MY OWN CHILDREN MAY NOT BE SAFE.  I CAN'T REMEMBER
WHAT HAPPENED; I DON'T KNOW WHAT HAPPENED.  I CAN'T THINK. 

"Q.  WHAT DO YOU THINK WILL HAPPEN TO THE CHILDREN?  A. I DON'T KNOW;
IT WORRIES ME. 

"Q.  WHAT DO YOU THINK MIGHT HAPPEN TO THE CHILDREN?  A. I WAS THERE
WITH A HAMMER IN MY HAND I KNOW IT.  I REMEMBER HAVING A HAMMER IN MY
HAND. 

"Q.  TAKE YOUR TIME AND RELAX.  NOW OPEN YOUR EYES AND LOOK AT ME,
JUST OPEN YOUR EYES - LOOK AT ME YOUR THOUGHTS WILL COME BACK, LOOK AT
ME AND CONCENTRATE.  YOU SAID YOU WERE AT THE STOVE WITH THE HAMMER IN
YOUR RIGHT HAND.  YOU WERE VERY, VERY ANGRY YOU SAID, RIGHT?  A. I WAS
NEVER ANGRY AT MY MOTHER BUT MY FATHER ACCUSED ME. 

"Q.  ACCUSES YOU OF WHAT?  A. THAT I WAS TRYING TO PUT HIM OUT OF
BUSINESS.  THE FIRST DAY WE WENT INTO THE NEW BUSINESS WE GAVE HIM AN
EQUAL SHARE WITH US.  (NOISE).  I KNEW FOR YEARS THAT HE KILLED MY
BROTHER.  MY BROTHER DID THE WORK OF SIX MEN; HE GAVE HIM A MEASLY TEN
DOLLARS A WEEK.  HE'D SOONER LOSE HIS SON AND STAY IN BUSINESS SO HE
COULD SAVE THE MONEY AND LIVE WITH MY MOTHER. 

"Q.  EVERYBODY IS WITH YOU ONE HUNDRED PER CENT.  YOU WERE ANGRY WITH
YOUR FATHER; YOU WERE NEVER SO ANGRY LIKE THAT IN ALL YOUR LIFE?  A. I
CAN SEE WHAT HAPPENED DOC BUT I CAN'T REMEMBER. 

"Q.  JUST CONCENTRATE AND YOUR MEMORY WILL COME BACK TO YOU.  YOU
WANT TO SAY SOMETHING BECAUSE I CAN SEE YOUR LIPS MOVING.  YOU ARE A
NICE FELLOW.  EVERYBODY LIKES YOU, EVERYBODY CAN MAKE A MISTAKE.  NOW
SPEAK UP AND TELL US WHAT HAPPENED.  ALRIGHT, SPEAK UP; YOU KNOW SOME
THINGS.  WHAT HAPPENED NEXT?  YOUR FATHER CAME BACK WITH THE PAPER,
WHAT DID YOU DO? A. I CAN'T THINK DOC.  IT DOESN'T COME TO ME.
(NOISE). 

"Q.  I'VE GOT MY HAND ON YOUR FOREHEAD, YOUR THOUGHTS WILL COME BACK
TO YOU, EVERYTHING WILL BE CLEAR?  A. HOLD MY TEMPLES DOC. 

"Q.  YOU SAY YOU WANT ME TO HOLD YOUR TEMPLES.  NOW YOUR THOUGHTS ARE
COMING BACK, THAT'S RIGHT.  THE PAIN WAS ONLY A TENSION; IT'S
NERVOUSNESS.  I'M TRYING TO MAKE YOU SPEAK.  I WANT YOU TO SPEAK UP AND
I WANT YOU TO TELL ME EVERYTHING, NOW SPEAK UP.  A. DO I HAVE TO? 

"Q.  SURE YOU HAVE TO; IT WILL BE MUCH BETTER FOR YOU, NOW SPEAK UP.
A. I DON'T REMEMBER MUCH.  I PROMISED THE CAPTAIN I WOULD SPEAK UP. 

"Q.  WAS THE CAPTAIN GOOD TO YOU?  A. HE WAS WONDERFUL. 

"Q.  WAS I GOOD TO YOU?  A. EVERYBODY WAS GOOD TO ME. 

"Q.  WE ARE ALL TRYING TO HELP YOU, WE ARE ALL TRYING TO HELP YOU. 
YOUR THOUGHTS ARE COMING INTO YOU.  NOW WHAT HAPPENED NEXT.  YOU THINK
AND YOU TELL ME; WHERE WERE YOU STANDING? 

     *  *         *         *         * 

"Q.  JUST CLOSE YOUR EYES AND IT WILL ALL COME BACK TO YOU.  JUST
CLOSE YOUR EYES AND RELAX.  A. I'M TRYING TO DOC.  I CAME BACK FROM THE
CEMETERY TODAY.  ALL THE WAY DOWN FROM THE CEMETERY I TRIED TO FORCE
MYSELF TO REMEMBER.  I CAN'T.  (NOISE).  I'M TRYING TO REMEMBER, HOW
COULD I DO THIS TO MY MOTHER.  I'M TRYING TO REMEMBER. 

"Q.  I CAN UNDERSTAND THAT YOU LOVED YOUR MOTHER?  A. MY MOTHER YES. 
I CAN'T THINK.  IT'S AWFUL. 

"Q.  I CAN UNDERSTAND HOW YOU FEEL ABOUT YOUR MOTHER.  A. THEY TOLD
ME TO REST.  I TOOK A GOOD SHOWER AND I SLEPT.  I WAS VERY TIRED; I WAS
TIRED, WHEN I GOT UP. 

"Q.  I CAN UNDERSTAND HOW YOU FEEL ABOUT YOUR MOTHER.  (NOISE).  YOU
WERE NEVER SO ANGRY IN ALL YOUR LIFE AS YOU WERE AT THAT TIME.  YOU
TOLD YOUR MOTHER THAT YOU WERE WAITING TO KILL HIM.  YOU WERE WAITING
FOR HIM TO COME BACK WITH THE PAPER.  THAT IS WHAT YOU TOLD ME.  I CAN
UNDERSTAND THAT THE ANGER WAS SUFFICIENT TO KILL YOUR FATHER?  A. WHY
MY MOTHER? 

"Q. I DON'T KNOW ABOUT YOUR MOTHER BUT AS FAR AS YOUR FATHER WAS
CONCERNED YOUR THOUGHTS WERE PRETTY CLEAR, RIGHT?  A. WHEN HE CAME BACK
I SAID I WAS GOING TO SETTLE IT ONCE AND FOR ALL. 

"Q.  WHEN HE CAME BACK YOU SAID TO HIM YOU WERE GOING TO SETTLE THIS
THING ONCE AND FOR ALL?  A. I SAID I WAS GOING TO SETTLE THIS THING
ONCE AND FOR ALL.  I STOOD THERE STANDING WITH THE HAMMER WAITING FOR
HIM TO COME BACK. 

"Q.  JUST TAKE YOUR TIME NOW.  YOU WERE STANDING THERE WITH THE
HAMMER.  NOW YOUR FATHER CAME BACK AGAIN?  A. I DON'T REMEMBER. 

"Q.  CLOSE YOUR EYES AND YOUR THOUGHTS WILL COME BACK, RELAX.  I AM
GOING TO MAKE YOUR MIND RECOLLECT EVERYTHING.  YOUR MIND IS GETTING
CLEARER AND CLEARER; ALL YOUR THOUGHTS ARE COMING BACK NOW.  NOW
THEY'RE COMING BACK.  NOW YOUR FATHER WENT FOR THE PAPER; YOUR FATHER
CAME BACK.  NOW TALK TO ME.  NOW YOUR MIND IS CLEAR.  (NOISE).  SPEAK
UP AND TELL ME.  A. I CAN'T REMEMBER HIM COMING BACK. 

"Q.  YES YOU CAN CONCENTRATE, JUST CONCENTRATE AND YOU CAN SEE YOUR
FATHER COME BACK NOW.  HOW LONG DID IT TAKE FOR HIM TO GET THE PAPER? 
A. OH, JUST A FEW MINUTES. 

     * *         *         *         * 

"Q.  AND IN A FEW MINUTES, YOU HEARD HIM COME IN?  A. I DON'T
REMEMBER HIM COMING IN. 

"Q.  WHAT DID YOU DO TO YOUR MOTHER IN THE MEANTIME?  A. I DON'T
KNOW.  IF I COULD ONLY THINK. 

"Q.  WHAT DO YOU THINK?  COME, THINK, THINK.  I WANT TO TELL YOU
SOMETHING.  YOU ARE A SMART FELLOW.  I MAY AS WELL BE VERY FRANK WITH
YOU.  EVERYTHING DOES NOT ALTER THE CASE FOR YOU.  THEY ARE NOT GOING
TO WORK WITH YOU AND I AM NOT GOING TO WORK WITH YOU IF YOU DON'T HELP
YOURSELF.  A. I WANT TO HELP MYSELF. 

"Q.  NOW, YOU SEE ALL THE DETAILS ARE THERE.  YOU SAY YOURSELF, YOU
WERE THE ONLY ONE THERE.  YOU SAY YOU MUST HAVE DONE IT?  A. WE TALKED
THIS OVER FOR TWELVE HOURS. 

"Q.  BUT YOU DIDN'T REMEMBER ALL THE FACTS THAT YOU TOLD ME.  NOW
YOUR MIND IS CLEAR.  A. I CAN'T REMEMBER HOW THAT HAPPENED. 

"Q.  THE FACT THAT YOU REMEMBER OR DON'T REMEMBER DON'T HELP YOU, YOU
KNOW.  IF YOU REMEMBER AND COME ACROSS LIKE A GOOD MAN:  A. DOC, I WANT
TO HELP MYSELF.  I CAN'T REMEMBER. 

"Q.  IF YOU TELL US THE DETAILS AND COME ACROSS LIKE A GOOD MAN, THEN
WE CAN HELP YOU.  WE KNOW THAT MORALLY YOU WERE JUST IN ANGER. 
MORALLY, YOU ARE NOT TO BE CONDEMNED.  RIGHT?  A. RIGHT. 

"Q.  BUT YOU HAVE TO TELL US THE DETAILS, THEN WE WILL KNOW THAT YOU
ARE ABOVE BOARD AND ON THE LEVEL.  OTHERWISE, WE JUST DON'T DO NOTHING
TO YOU AND YOU WILL GET THE WORST OF IT.  A. I CAN'T REMEMBER.  I MUST
HAVE DONE IT.  I DON'T DENY THAT I DID IT. 

"Q.  YOU DON'T DENY WHAT?  A. I DON'T DENY THAT I DID IT.  I MUST
HAVE DONE IT. 

"Q.  YOU DON'T DENY THAT YOU DIDN'T DO IT, YOU MEAN?  A. NO, I DON'T
SAY I DIDN'T DO IT.  I KNOW I DID IT. 

"Q.  YOU KNOW YOU DID IT?  A. HERE IS THE PROOF OF IT. 

"Q.  DO YOU KNOW YOU DID IT?  A. I CAN'T REMEMBER DOING IT.  I KNOW
IT HAPPENED.  LOOK AT MY MOTHER, THE WOMAN THAT I LOVE MOST IN THE
WORLD.  LOOK.  HOW DID IT HAPPEN?  I CAN'T EVEN REMEMBER.  I CAN'T
REMEMBER HIM.  I CAN'T REMEMBER HIM COMING BACK.  DOCTOR, CAN ANYBODY
BE THIS CRAZY? 

"Q.  THAT IS NOT CRAZY, MY FRIEND.  THAT IS NOT CRAZY.  WHEN YOU
DON'T REMEMBER ANYTHING, THAT IS NOT CRAZY.  IF I FORGET THAT I OWE
SOMEBODY TEN DOLLARS, THAT DOESN'T MEAN THAT I AM CRAZY.  IF YOU FORGET
THE INCIDENTS OF THIS THING, THAT DOES NOT MEAN YOU ARE CRAZY.  A. I
DIDN'T SAY IT THAT WAY. 

"Q.  YOU SAID, 'CAN ANYBODY BE THAT CRAZY?'  YOU ARE NOT CRAZY.  A. I
WANT TO REMEMBER THIS THING.  I HAVE GOT TO REMEMBER IT. 

"Q.  THIS IS WHAT WE CALL AMNESIA AND IN OTHER WORDS, A WISH TO
FORGET BECAUSE IT IS NOT PLEASANT.   IT DOES NOT MEAN THAT YOU ARE
CRAZY.  A. I DIDN'T SAY THAT DOCTOR.  YOU MISUNDERSTOOD ME. 

"Q.  I MUST HAVE MISUNDERSTOOD YOU.  A. I DIDN'T SAY I WAS CRAZY. 

"Q.  YOU DON'T THINK YOU ARE CRAZY, DO YOU?  A. NO, I HOPE NOT. 

"Q.  DO YOU THINK YOU MIGHT BE CRAZY?  A. NO, I DON'T THINK SO. 

"Q.  OF COURSE NOT.  YOU ARE NOT CRAZY.  YOU ARE A NICE FELLOW.  I AM
WILLING TO STAY HERE WITH YOU AND HELP YOU BUT YOU HAVE GOT TO HELP
YOURSELF.  A. I HAVE TRIED TODAY FOR HOURS TO RECALL FROM HERE ON, FROM
THE TIME THAT MY MOTHER - I CAN RECALL EVERYTHING.  I DID IT LAST
NIGHT.  HERE, IT TOOK HOURS TO PIECE TOGETHER THINGS.  I SAT HERE.  I
WAS SO CONFUSED THAT I DIDN'T KNOW WHETHER I OWNED THIS SUIT.  I DIDN'T
KNOW WHETHER I HAD A PAIR OF SHOES. 

"Q.  EVERYTHING IS CLEAR UP TO THE POINT WHERE YOU HELD THE HAMMER IN
YOUR HAND?  A. THAT'S RIGHT BUT WHY CAN'T I REMEMBER FROM THERE ON? 

"Q.  IF YOU WILL JUST STOP FOR A MINUTE, YOU WILL REMEMBER.  AND YOUR
THOUGHTS WILL COME INTO YOU.   A. DOCTOR, I AM EXHAUSTED, SO PLEASE BE
PATIENT. 

"Q.  I AM PATIENT.  A. I APPRECIATE THAT. 

"Q.  I WILL STAY HERE WITH YOU ALL NIGHT, IF YOU WANT TO?  A. THE
CAPTAIN AND I LAST NIGHT, HE WAS SO PATIENT.  HE WAITED FOR HOURS UNTIL
THESE THINGS CAME HOME. 

"Q.  FOR HOURS?  A. I APPRECIATE IT. 

"Q.  DO YOU WANT ME TO WAIT?  A. I TOLD HIM THAT THE LAST TIME.  IT'S
GOT TO COME BACK.  I HAVE BEEN TRYING TO REMEMBER ALL DAY. 

"Q.  TAKE YOUR TIME.  JUST TAKE YOUR TIME.  A. I AM TRYING TO
REMEMBER. 

"Q.  YOU GOT A MUCH BETTER CHANCE TO PLAY BALL, (THEN NOISE) THAN IF
YOU SAY YOU DON'T REMEMBER. 

"Q.  IF YOU TELL ME THAT YOU WERE IN A FIT OF ANGER, THAT YOU WERE
ANGRY, THAT YOU JUST SWUNG THE HAMMER, BUT IF YOU TELL ME THAT YOU
DON'T REMEMBER, THEN YOU WILL BE WORKING AGAINST YOURSELF.  WHERE WILL
IT GET YOU?  A. AT THAT POINT THERE, I WAS SO MAD.  I WAS LIKE WHITE
HOT METAL.  I WAS SO MAD.  I WAS NEVER MAD AT ANYONE IN MY LIFE.  (THEN
NOISE). 

"Q. DO YOU FEEL BETTER?  (THEN NOISE).  DO YOU WANT COFFEE?  A. I
DRANK COFFEE ALL NIGHT LONG.  (THEN NOISE). 

"Q.  THESE PEOPLE ARE GOING TO THROW THE BOOK AT YOU UNLESS YOU CAN
SHOW THAT IN A FIT OF TEMPER, YOU GOT SO ANGRY THAT YOU DID IT.
OTHERWISE THEY TOSS PREMEDITATION IN AND IT'S PREMEDITATION.  SEE? 

"Q.  DRINK YOUR COFFEE.  TAKE YOUR TIME.  I GOT TIME.  YOU GOT TIME. 
JUST RELAX.  WANT SOME MORE COFFEE?  A. I WOULD LIKE SOME HOT COFFEE,
DOC.  I WOULD LIKE TO SPEAK TO THE CAPTAIN. 

"Q.  TO WHOM?  A. TO CAPTAIN MEENAHAN. 

"Q.  YOU WOULD LIKE TO SPEAK TO HIM?  YOU WANT ME TO CALL HIM?  A. I
WISH YOU WOULD. 

"Q.  DO YOU WANT ME TO COME BACK?  A. I DON'T KNOW.  HE WAS AWFUL
GOOD HUNK LAST NIGHT. 

"Q.  WELL, WE WERE GETTING ALONG VERY NICELY.  I AM TRYING TO
STRAIGHTEN HIM OUT WITH HIS TROUBLES.  HE SEEMED A LITTLE MIXED-UP.
HIS MIND IS CLEAR NOW.  I MADE HIM CONCENTRATE.  HIS MIND IS MUCH
CLEARER.  YOU CAN TAKE MY SEAT, CAPTAIN.  "Q.  CAN I SPEAK TO THE
CAPTAIN?" 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE BURTON
JOIN, DISSENTING. 

THIS PETITIONER WAS CHARGED WITH MURDERING HIS PARENTS BY BEATING THE
LIFE OUT OF THEM WITH A HAMMER.  NO ONE CLAIMS THAT HE HAS A DEFENSE TO
THE CHARGE.  IT IS CONTENDED, HOWEVER, THAT HIS CONVICTION WAS NOT
OBTAINED IN ACCORDANCE WITH DUE PROCESS OF LAW. 

HE HAS ALREADY HAD TWO TRIALS.  HIS FIRST CONVICTION WAS APPEALED AND
REVERSED.  THE SECOND ONE WAS APPEALED AND AFFIRMED, AND THIS COURT
DENIED CERTIORARI ON A PETITION THAT SET UP THE SAME CONSTITUTIONAL
QUESTIONS NOW RAISED.  THEN HABEAS CORPUS PROCEEDINGS WERE INSTITUTED
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK AND RELIEF WAS DENIED.  THAT JUDGMENT WAS AFFIRMED BY THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AND IS THE ONE NOW HERE
ON CERTIORARI. 

THE NEW YORK COURT OF APPEALS REVERSED THE FIRST CONVICTION ON THE
GROUND THAT A CONFESSION INTRODUCED IN EVIDENCE AT THE TRIAL WAS THE
RESULT OF MENTAL COERCION AND HENCE INVOLUNTARY.  THE THREATS,
CAJOLING, AND PROMISES OF LENIENCY, UTILIZED BY DR. HELFAND, A
PSYCHIATRIST CALLED IN BY THE DISTRICT ATTORNEY, TO INDUCE PETITIONER
TO CONFESS WERE SOUNDLY CONDEMNED BY THAT COURT.  THE CONFESSION THUS
OBTAINED WAS HELD INADMISSIBLE FOR THE PURPOSE OF PROVING PETITIONER'S
GUILT.  BUT PETITIONER'S SUBSEQUENT CONFESSIONS TO CAPTAIN MEENAHAN OF
THE POLICE, TO THE TWO ASSISTANT DISTRICT ATTORNEYS, AND TO HIS
BUSINESS ASSOCIATE, HERRSCHAFT, WERE NOT INVALIDATED AS A MATTER OF
LAW.  THE CASE WAS REMANDED TO THE TRIAL COURT WITH DIRECTIONS TO
SUBMIT TO A JURY UNDER PROPER INSTRUCTIONS THE QUESTION WHETHER THE
SUBSEQUENT CONFESSIONS RESULTED FROM OR WERE INFLUENCED BY THE MENTAL
COERCION WHICH PRODUCED THE HELFAND CONFESSION. 

THE CASE WAS TRIED A SECOND TIME, AND THE QUESTION OF THE
VOLUNTARINESS OF THE SUBSEQUENT CONFESSIONS WAS SUBMITTED TO THE JURY
UNDER CLEAR AND AMPLE INSTRUCTIONS AS TO WHICH PETITIONER RAISES NO
OBJECTION HERE.  THE JURY RETURNED A VERDICT OF GUILTY OF FIRST-DEGREE
MURDER OF THE FATHER, AND A SENTENCE OF DEATH WAS IMPOSED. 

WE ARE NOW ASKED TO HOLD THAT THE LATER CONFESSIONS WERE INVOLUNTARY
AS A MATTER OF LAW AND THAT PETITIONER WAS DENIED DUE PROCESS OF LAW
UNDER THE FOURTEENTH AMENDMENT BECAUSE THE JURY WAS ALLOWED TO CONSIDER
THE VOLUNTARINESS OF THE SUBSEQUENT CONFESSIONS.  IT SEEMS TO ME THE
VERY ESSENCE OF DUE PROCESS TO SUBMIT TO A JURY THE QUESTION OF WHETHER
THESE LATER CONFESSIONS WERE TAINTED BY THE PRIOR COERCION AND PROMISES
WHICH LED TO THE HELFANT CONFESSION.  I AM FAMILIAR WITH NO CASE IN
WHICH THIS COURT HAS EVER HELD THAT AN INVALID CONFESSION IPSO FACTO
INVALIDATES ALL SUBSEQUENT CONFESSIONS AS A MATTER OF LAW.  IT DOES NOT
SEEM TO ME A DENIAL OF DUE PROCESS FOR THE STATE TO ALLOW THE JURY TO
SAY, UNDER ALL THE FACTS AND CIRCUMSTANCES IN EVIDENCE AND UNDER PROPER
INSTRUCTIONS BY THE COURT, WHETHER THE SUBSEQUENT CONFESSIONS WERE
TAINTED OR WERE FREE AND VOLUNTARY.  THIS IS PRECISELY WHAT NEW YORK
DID.  IN LYONS V. OKLAHOMA, 322 U.S. 596, 603, IT WAS SAID:    "THE
FOURTEENTH AMENDMENT DOES NOT PROTECT ONE WHO HAS ADMITTED HIS GUILT
BECAUSE OF FORBIDDEN INDUCEMENTS AGAINST THE USE AT TRIAL OF HIS
SUBSEQUENT CONFESSIONS UNDER ALL POSSIBLE CIRCUMSTANCES.   THE
ADMISSIBILITY OF THE LATER CONFESSION DEPENDS UPON THE SAME TEST - IS
IT VOLUNTARY." 

THE ONLY QUESTION BEFORE US IS WHETHER THE EFFECTS OF THE COERCION
PRACTICED BY DR. HELFAND SO CLEARLY CONTINUED TO INFLUENCE PETITIONER'S
MIND AS TO MAKE UNREASONABLE ANY CONCLUSION OTHER THAN THAT THE LATER
CONFESSIONS WERE ALSO COERCED.  IF THERE WAS EVIDENCE TO SUPPORT
CONTRARY INFERENCES AS TO THE CONTINUING EFFECT OF THE COERCIVE
PRACTICES, THE CONVICTION SHOULD NOT BE DISTURBED.  IT IS NOT OUR
FUNCTION TO SET ASIDE STATE COURT CONVICTIONS ON THE GROUND THAT THE
VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.  STEIN V. NEW YORK, 346
U.S. 156, 180. 

THE EVIDENCE SHOWS AN INVOLUNTARY CONFESSION TO DR. HELFAND.*  IT WAS
FOLLOWED A FEW MINUTES LATER BY A CONFESSION TO CAPTAIN MEENAHAN.  SOME
HALF HOUR LATER PETITIONER CONFESSED TO A BUSINESS ASSOCIATE,
HERRSCHAFT, SAYING, "WELL, YOU KNOW WHAT IT'S ALL ABOUT; I DID IT." 
HERRSCHAFT ASKED, "DO YOU MEAN THAT YOU KILLED YOUR OWN MOTHER AND
FATHER?"  AND PETITIONER REPLIED, "I DID IT."  THIS CONFESSION WAS
ADMITTED IN THIS COURT TO HAVE BEEN VOLUNTARILY MADE, AND NO COMPLAINT
IS MADE OF ITS ADMISSION IN EVIDENCE.  SANDWICHED IN BETWEEN THE
MEENAHAN CONFESSION AND THE CONFESSION TO THE ASSISTANT DISTRICT
ATTORNEYS SOME TWO AND ONE-HALF HOURS LATER, THE HERRSCHAFT CONFESSION
PRESENTS ENOUGH EVIDENCE IN ITSELF TO GO TO THE JURY ON WHETHER THESE
THREE CONFESSIONS, ONE ADMITTED TO HAVE BEEN VALID, WERE ALL GIVEN BY
PETITIONER VOLUNTARILY WITH THE CONSIDERED PURPOSE OF MAKING A CLEAN
BREAST OF THE WHOLE THING. 

*THE RECORD DISCLOSES THAT PETITIONER WAS QUESTIONED BY CAPTAIN
MEENAHAN ON TUESDAY, THE DAY OF THE MURDER, FROM ABOUT 9 OR 10 IN THE
EVENING UNTIL 10:30 OR 10:45 AT HIS PARENTS' APARTMENT.  ON WEDNESDAY
AT ABOUT 10 IN THE MORNING, HE WAS MET AT HIS PLACE OF BUSINESS BY
DETECTIVES WHO QUESTIONED HIM OFF AND ON UNTIL 1:20 P.M., WHEN CAPTAIN
MEENAHAN BEGAN AN INTERROGATION WHICH WAS CONCLUDED AT 11:30 OR 12 THAT
NIGHT.  HE WAS THEN ALLOWED TO GO HOME.  IT WAS NOT UNTIL THURSDAY THAT
HE WAS TAKEN IN CUSTODY.  THAT MORNING HE WAS TAKEN OUT BY DETECTIVES
TO CHECK HIS ALIBI.  QUESTIONING BY CAPTAIN MEENAHAN BEGAN AGAIN ABOUT
2 THAT AFTERNOON.  HE WAS KEPT AT THE STATION UNTIL 8:30 O'CLOCK FRIDAY
MORNING, BUT THERE WAS LITTLE QUESTIONING AFTER 10 P.M. THURSDAY
EVENING.  ON FRIDAY MORNING, HE WAS TAKEN TO HIS PARENTS' FUNERAL AND
THEN PERMITTED TO SLEEP FOR AN HOUR AND A HALF.  HE WAS RETURNED TO THE
POLICE STATION, AND ABOUT 5 O'CLOCK FRIDAY AFTERNOON THE INTERVIEW WITH
DR. HELFAND BEGAN.  THE COERCION PRACTICED BY DR. HELFAND WAS
FORCEFULLY CONDEMNED BY THE NEW YORK COURT OF APPEALS AND CAUSED IT TO
DECLARE THE CONFESSION TO DR. HELFAND INVALID AS A MATTER OF LAW.  THE
VALIDITY OF THIS CONFESSION IS NOT INVOLVED. 

NOR WAS THIS THE ONLY EVIDENCE.  PETITIONER BOLDLY EXAMINED DR.
HELFAND, THE STATE'S WITNESS, FOR THE PURPOSE, AMONG OTHERS, OF LAYING
A FOUNDATION FOR THE INTRODUCTION OF EXPERT TESTIMONY BY PETITIONER'S
PSYCHIATRIST THAT THE EFFECT OF THE COERCION CARRIED OVER TO THE LATER
CONFESSIONS.  PETITIONER'S EXPERT TESTIFIED AS EXPECTED.  THE STATE
THEN PLACED ON THE STAND ANOTHER PSYCHIATRIST WHO GAVE THE OPPOSITE
OPINION, BASED ON EVIDENCE THAT PETITIONER IN HIS LATER CONFESSIONS
GAVE DETAILS OF THE CRIME KNOWN ONLY TO HIM AND GAVE THEM FREELY
WITHOUT URGING.  IF THIS DISAGREEMENT BETWEEN EXPERTS DID NOT UNDER NEW
YORK LAW CONSTITUTE A CONFLICT IN THE EVIDENCE SUFFICIENT STANDING
ALONE TO GO TO THE JURY, THERE WAS OTHER EVIDENCE, SUCH AS THE
HERRSCHAFT CONFESSION, TO BE CONSIDERED, TOGETHER WITH THE TESTIMONY OF
THE ASSISTANT DISTRICT ATTORNEYS THAT PETITIONER SEEMED QUITE NORMAL
AND RELAXED, AND RELIEVED TO TALK TO THEM.  AS I SAID BEFORE, IT IS NOT
OUR FUNCTION TO WEIGH THE EVIDENCE.  WHETHER THERE WAS ANY EVIDENCE TO
GO TO A JURY IS THE QUESTION.  IN MY OPINION, THERE WAS A QUESTION OF
FACT PRESENTED BY THE EVIDENCE. 

THIS COURT CONCLUDED ITS OPINION IN THE LYONS CASE IN THESE WORDS: 

"WE CANNOT SAY THAT AN INFERENCE OF GUILT BASED IN PART UPON LYONS'
(LATER) MCALESTER CONFESSION IS SO ILLOGICAL AND UNREASONABLE AS TO
DENY THE PETITIONER A FAIR TRIAL."  LYONS V. OKLAHOMA, SUPRA, AT 605. 

I CANNOT SAY HERE THAT THE SUBSEQUENT CONFESSIONS AS A MATTER OF LAW
WERE SO COMPLETELY UNDER THE INFLUENCE OF THE FIRST CONFESSION THAT TO
LET A JURY PASS UPON THAT INFLUENCE AS IT AFFECTED THE VOLUNTARINESS OF
THE LATER CONFESSIONS AMOUNTS TO A DENIAL OF DUE PROCESS OF LAW.  TO
LET THE JURY PASS UPON THIS QUESTION IS NOT SO UNFAIR TO PETITIONER AS
TO VIOLATE THE FUNDAMENTAL PRINCIPLES OF JUSTICE. 

IT IS CONTENDED THAT THE PROMISES OF LENIENCY MADE BY DR. HELFAND
STAND ON A DIFFERENT FOOTING; THAT ONCE A PROMISE IS MADE, ITS EFFECT
MUST BE PRESUMED TO CONTINUE UNTIL THE PROMISE IS CLEARLY WITHDRAWN. 
BUT SUCH HAS NEVER BEEN THE LAW.  SEE STATE V. WILLIS, 71 CONN. 293,
313, 41 A. 820, 826.  AS IN THE CASE OF OTHER FORMS OF COERCION AND
INDUCEMENT, ONCE A PROMISE OF LENIENCY IS MADE A PRESUMPTION ARISES
THAT IT CONTINUES TO OPERATE ON THE MIND OF THE ACCUSED.  BUT A SHOWING
OF A VARIETY OF CIRCUMSTANCES CAN OVERCOME THAT PRESUMPTION.  THE
LENGTH OF TIME ELAPSING BETWEEN THE PROMISE AND THE CONFESSION, THE
APPARENT AUTHORITY OF THE PERSON MAKING THE PROMISE, WHETHER THE
CONFESSION IS MADE TO THE SAME PERSON WHO OFFERED LENIENCY, AND THE
EXPLICITNESS AND PERSUASIVENESS OF THE INDUCEMENT ARE AMONG THE MANY
FACTORS TO BE WEIGHED. 

THERE ARE TWO PARTIES TO THIS CASE, THE STATE AND THE PETITIONER, AND
ON THE STATE RESTS THE HEAVY BURDEN OF PROVING GUILT.  AS MR. JUSTICE
CARDOZO SAID IN SNYDER V. MASSACHUSETTS, 291 U.S. 97, 122: 

"BUT JUSTICE, THOUGH DUE TO THE ACCUSED, IS DUE TO THE ACCUSER ALSO. 
THE CONCEPT OF FAIRNESS MUST NOT BE STRAINED TILL IT IS NARROWED TO A
FILAMENT.  WE ARE TO KEEP THE BALANCE TRUE." 

NEW YORK MUST BE MYSTIFIED IN ITS EFFORTS TO ENFORCE ITS LAW AGAINST
HOMICIDE TO HAVE US SAY IT MAY NOT SUBMIT A DISPUTED QUESTION OF FACT
TO A JURY.  THE COURT HOLDS THAT TO DO SO DENIES DUE PROCESS.  THE
ANSWER TO THAT QUESTION, WHICH DID NOT SEEM SUBSTANTIAL TO US WHEN
CERTIORARI WAS SOUGHT TO REVIEW THE DECISION OF THE NEW YORK COURT OF
APPEALS, NOW EMERGES CRYSTAL CLEAR WHEN  WE ARE REVIEWING THE DECISION
OF A FEDERAL COURT DEALING WITH IT IN A COLLATERAL HABEAS CORPUS
PROCEEDING.  AND YET THE JURY AND A MAJORITY OF THE JUDGES OF EVERY
COURT, STATE AND FEDERAL, THAT UNTIL NOW HAVE CONSIDERED THE MATTER
HAVE FOUND NO SUCH FAILURE TO OBSERVE CONSTITUTIONAL STANDARDS.   MR.
JUSTICE CARDOZO'S WORDS IN THE SNYDER CASE, SUPRA, AT PAGE 122, SEEM
ESPECIALLY PERTINENT HERE:

"THERE IS DANGER THAT THE CRIMINAL LAW WILL BE BROUGHT INTO CONTEMPT
THAT DISCREDIT WILL EVEN TOUCH THE GREAT IMMUNITIES ASSURED BY THE
FOURTEENTH AMENDMENT - IF GOSSAMER POSSIBILITIES OF PREJUDICE TO A
DEFENDANT ARE TO NULLIFY A SENTENCE PRONOUNCED BY A COURT OF COMPETENT
JURISDICTION IN OBEDIENCE TO LOCAL LAW, AND SET THE GUILTY FREE." 

THE CAREFUL, CONSIDERATE, FAIR TRIAL ACCORDED PETITIONER IS IN
KEEPING WITH THE FUNDAMENTAL ESSENTIALS OF JUSTICE WHICH ARE DUE
PROCESS, AND I WOULD AFFIRM. 
..END :






BRANIFF AIRWAYS, INC. V. NEBRASKA STATE BOARD OF EQUALIZATION AND
ASSESSMENT 347 U.S. 590 


NO. 476.  ARGUED MARCH 12, 1954- DECIDED JUNE 1, 1954 - 157 NEB. 425, 59
N.W.2D 746, AFFIRMED. 


PURSUANT TO A NEBRASKA TAX STATUTE, AN APPORTIONED AD VALOREM TAX WAS
LEVIED ON THE FLIGHT EQUIPMENT OF APPELLANT, AN INTERSTATE AIR
CARRIER.  APPELLANT IS NOT INCORPORATED IN NEBRASKA AND DOES NOT HAVE
ITS PRINCIPAL PLACE OF BUSINESS OR "HOME PORT" IN THAT STATE, BUT ITS
AIRCRAFT MAKE EIGHTEEN STOPS PER DAY REGULARLY IN NEBRASKA AND
APPROXIMATELY ONE-TENTH OF APPELLANT'S REVENUE IS DERIVED FROM THE
PICKUP AND DISCHARGE OF NEBRASKA FREIGHT AND PASSENGERS.  APPELLANT
CHALLENGED THE VALIDITY OF THE TAX UNDER THE FEDERAL CONSTITUTION, BUT
IT DID NOT CHALLENGE THE REASONABLENESS OF THE APPORTIONMENT TO ITS
PROPERTY.  HELD: APPELLANT'S FLIGHT EQUIPMENT IS NOT IMMUNE FROM
TAXATION BY NEBRASKA FOR WANT OF SITUS THERE OR BECAUSE REGULATION OF
AIR NAVIGATION BY THE FEDERAL GOVERNMENT PRECLUDES SUCH STATE
TAXATION.  PP. 591-602. 

1.  FEDERAL STATUTES GOVERNING AIR COMMERCE ENACTED UNDER THE
COMMERCE POWER DO NOT PRECLUDE THE CHALLENGED TAX.  PP. 594-597. 

2.  APPELLANT HAS NOT DEMONSTRATED THAT THE COMMERCE CLAUSE OTHERWISE
BARS THIS TAX AS A BURDEN ON INTERSTATE COMMERCE.  PP. 597-598. 

3.  WHETHER AN INSTRUMENTALITY OF COMMERCE HAS TAX SITUS IN A STATE
FOR THE PURPOSE OF SUBJECTION TO A PROPERTY TAX IS A QUESTION OF DUE
PROCESS; AND THAT QUESTION WAS SUFFICIENTLY PRESENTED BY APPELLANT IN
THIS CASE.  PP. 598-599. 

4.  EIGHTEEN STOPS PER DAY BY APPELLANT'S AIRCRAFT WAS SUFFICIENT
CONTACT WITH NEBRASKA TO SUSTAIN THAT STATE'S POWER TO LEVY AN
APPORTIONED AD VALOREM TAX ON SUCH AIRCRAFT, EVEN THOUGH THE SAME
AIRCRAFT DO NOT LAND EVERY DAY, AND EVEN THOUGH NONE OF THE AIRCRAFT IS
CONTINUOUSLY WITHIN THE STATE.  PP. 599-601. 

5.  THE POWER OF NEBRASKA TO LEVY THIS TAX IS NOT AFFECTED BY THE
FACT THAT THE ORIGINAL PLAINTIFF IN THIS CASE WAS DOMICILED IN
DELAWARE, THROUGH WHICH ITS PLANES DID NOT FLY, AND THAT APPELLANT
(WITH WHICH THE ORIGINAL PLAINTIFF WAS MERGED) IS DOMICILED IN
OKLAHOMA, THROUGH WHICH THE AIRCRAFT IN QUESTION MAKE REGULAR FLIGHTS. 
P. 601. 

6.  NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292, DOES NOT PRECLUDE
STATES OTHER THAN THOSE OF THE CORPORATE DOMICILE FROM TAXING
INSTRUMENTALITIES OF INTERSTATE COMMERCE ON THE APPORTIONMENT BASIS IN
ACCORDANCE WITH THEIR USE IN THE TAXING STATE.  PP. 601-602. 

BRANIFF AIRWAYS, INC. V. NEBRASKA STATE BOARD OF EQUALIZATION AND
ASSESSMENT ET AL. 

APPEAL FROM THE SUPREME COURT OF NEBRASKA. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS APPEAL FROM THE SUPREME COURT OF
NEBRASKA IS WHETHER THE CONSTITUTION BARS THE STATE OF NEBRASKA FROM
LEVYING AN APPORTIONED AD VALOREM TAX ON THE FLIGHT EQUIPMENT OF
APPELLANT, AN INTERSTATE AIR CARRIER.  APPELLANT IS NOT INCORPORATED IN
NEBRASKA AND DOES NOT HAVE ITS PRINCIPAL PLACE OF BUSINESS OR HOME PORT
REGISTERED UNDER THE CIVIL AERONAUTICS ACT, 52 STAT. 973, 977, 49
U.S.C. SECS. 401-705, IN THAT STATE.  SUCH FLIGHT EQUIPMENT IS EMPLOYED
AS A PART OF A SYSTEM OF INTERSTATE AIR COMMERCE OPERATING OVER FIXED
ROUTES AND LANDING ON AND DEPARTING FROM AIRPORTS WITHIN NEBRASKA ON
REGULAR SCHEDULES.  APPELLANT DOES NOT CHALLENGE THE REASONABLENESS OF
THE APPORTIONMENT PRESCRIBED BY THE TAXING STATUTE OR THE APPLICATION
OF SUCH APPORTIONMENT TO ITS PROPERTY.  IT CONTENDS ONLY THAT ITS
FLIGHT EQUIPMENT USED IN INTERSTATE COMMERCE IS IMMUNE FROM TAXATION BY
NEBRASKA BECAUSE WITHOUT SITUS IN THAT STATE AND BECAUSE REGULATION OF
AIR NAVIGATION BY THE FEDERAL GOVERNMENT PRECLUDES SUCH STATE
TAXATION. 

THIS PETITION FOR A DECLARATORY JUDGMENT OF THE INVALIDITY OF SECS.
77-1244 TO 77-1250 OF THE STATE TAX STATUTE (FN1) AND AN INJUNCTION
AGAINST THE COLLECTION OF TAXES ASSESSED UNDER SUCH PROVISIONS FOR
PREVIOUS YEARS WAS FILED AS AN ORIGINAL ACTION IN THE COURT BELOW BY
MID-CONTINENTAL AIRLINES, INC., AND TRIED UPON STIPULATED FACTS. 
SUBSEQUENT TO FILING, BUT BEFORE THE DECISION, MID-CONTINENTAL AND
APPELLANT WERE MERGED ON AUGUST 1, 1952, AND APPELLANT WAS SUBSTITUTED
AS THE PARTY PLAINTIFF.  MID-CONTINENT HAD BEEN INCORPORATED IN
DELAWARE WITH ITS CORPORATE PLACE OF BUSINESS IN WILMINGTON IN THAT
STATE, AND BRANIFF IS INCORPORATED IN OKLAHOMA AND HAS ITS CORPORATE
PLACE OF BUSINESS IN OKLAHOMA CITY.  PURSUANT TO THE MERGER MID
CONTINENT'S MAIN EXECUTIVE OFFICES WERE MOVED FROM KANSAS CITY,
MISSOURI, AND MERGED WITH APPELLANT'S IN DALLAS, TEXAS.  THE NUMBER OF
REGULARLY SCHEDULED STOPS IN NEBRASKA, FOURTEEN PER DAY AT OMAHA AND
FOUR AT LINCOLN, WAS NOT AFFECTED BY THE MERGER. 

THE HOME PORT REGISTERED WITH THE CIVIL AERONAUTICS AUTHORITY AND THE
OVERHAUL BASE FOR THE AIRCRAFT IN QUESTION IS THE MINNEAPOLIS-ST. PAUL
AIRPORT, MINNESOTA.  ALL OF THE AIRCRAFT NOT UNDERGOING OVERHAUL FLY
REGULAR SCHEDULES UPON A CIRCUIT RANGING FROM MINOT, NORTH DAKOTA, TO
NEW ORLEANS, LOUISIANA, WITH STOPS IN FOURTEEN STATES INCLUDING
MINNESOTA, NEBRASKA AND OKLAHOMA.  NO STOPS WERE MADE IN DELAWARE.  THE
NEBRASKA STOPS ARE OF SHORT DURATION SINCE UTILIZED ONLY FOR THE
DISCHARGE AND LOADING OF PASSENGERS, MAIL, EXPRESS, AND FREIGHT, AND
SOMETIMES FOR REFUELING.  APPELLANT NEITHER OWNS NOR MAINTAINS
FACILITIES FOR REPAIRING, RECONDITIONING, OR STORING ITS FLIGHT
EQUIPMENT IN NEBRASKA, BUT RENTS DEPOT SPACE AND HIRES OTHER SERVICES
AS REQUIRED.  THE SUPREME COURT OF NEBRASKA MADE NO DISTINCTION AS TO
TAXABILITY BETWEEN THOSE YEARS WHEN NO FLIGHTS WERE MADE INTO THE STATE
OF DOMICILE (DELAWARE) AND THOSE WHEN FLIGHTS DID ENTER THE STATE OF
NEW DOMICILE (OKLAHOMA). 

IT IS STIPULATED THAT THE TAX IN QUESTION IS ASSESSED ONLY AGAINST
REGULARLY SCHEDULED AIR CARRIERS AND IS NOT APPLIED TO CARRIERS WHO
OPERATE ONLY INTERMITTENTLY IN THE STATE.  THE STATUTE DEFINES "FLIGHT
EQUIPMENT" AS "AIRCRAFT FULLY EQUIPPED FOR FLIGHT," (FN2) AND PROVIDES
THAT "ANY TAX UPON OR MEASURED BY THE VALUE OF FLIGHT EQUIPMENT OF AIR
CARRIERS INCORPORATED OR DOING BUSINESS IN THIS STATE SHALL BE ASSESSED
AND COLLECTED BY THE TAX COMMISSIONER."  (FN3)  A FORMULA IS PRESCRIBED
FOR ARRIVING AT THE PROPORTION OF A CARRIER'S FLIGHT EQUIPMENT TO BE
ALLOCATED TO THE STATE.  (FN4) 

THE STATUTE USES THE ALLOCATION FORMULA OF THE "PROPOSED UNIFORM
STATUTE TO PROVIDE FOR AN EQUITABLE METHOD OF STATE TAXATION OF AIR
CARRIERS" ADOPTED BY THE COUNCIL OF STATE GOVERNMENTS UPON THE
RECOMMENDATION OF THE NATIONAL ASSOCIATION OF TAX ADMINISTRATORS IN
1947.  (FN5)  USE OF A UNIFORM ALLOCATION FORMULA TO APPORTION
AIRCARRIER TAXES AMONG THE STATES FOLLOWS THE RECOMMENDATION OF THE
CIVIL AERONAUTICS BOARD IN ITS REPORT TO CONGRESS.  (FN6)  THE NEBRASKA
STATUTE PROVIDES FOR REPORTS, LEVY, AND RATE OF TAX BY STATE AVERAGE. 
(FN7) 

REQUIRED REPORTS FILED BY MID-CONTINENTAL FOR 1950 SHOW THAT ABOUT 9%
OF ITS REVENUE AND 11 1/2% OF THE TOTAL SYSTEM TONNAGE ORIGINATED IN
NEBRASKA AND ABOUT 9% OF ITS TOTAL STOPS WERE MADE IN THAT STATE.  FROM
THESE FIGURES, USING THE STATUTORY FORMULA, THE TAX COMMISSIONER
ARRIVED AT A VALUATION OF $118,901 ALLOCABLE TO NEBRASKA, RESULTING IN
A TAX OF $4,280.44.  SINCE MID-CONTINENT FILED NO RETURN FOR 1951 THE
SAME VALUATION WAS USED AND AN INCREASED RATE RESULTED IN ASSESSMENT OF
$4,518.29.  THE SUPREME COURT OF NEBRASKA HELD THE STATUTE NOT
VIOLATIVE OF THE COMMERCE CLAUSE AND DISMISSED APPELLANT'S PETITION. 
(FN8) 

APPELLANT ARGUES THAT FEDERAL STATUTES GOVERNING AIR COMMERCE ENACTED
UNDER THE COMMERCE POWER PRE-EMPT THE FIELD OF REGULATION OF SUCH AIR
COMMERCE AND PRECLUDE THIS TAX.  CONGRESS, BY THE CIVIL AERONAUTICS ACT
OF 1938, 52 STAT. 973, 977, 1028, SEC. 1107(I)(3), 49 U.S.C.  SEC.
176(A), ENACTED: 

"THE UNITED STATES OF AMERICA IS DECLARED TO POSSESS AND EXERCISE
COMPLETE AND EXCLUSIVE NATIONAL SOVEREIGNTY IN THE AIR SPACE ABOVE THE
UNITED STATES, INCLUDING THE AIR SPACE ABOVE ALL INLAND WATERS AND THE
AIR SPACE ABOVE THOSE PORTIONS OF THE ADJACENT MARGINAL HIGH SEAS,
BAYS, AND LAKES, OVER WHICH BY INTERNATIONAL LAW OR TREATY OR
CONVENTION THE UNITED STATES EXERCISES NATIONAL JURISDICTION." 

THIS PROVISION ORIGINATED IN THE AIR COMMERCE ACT OF 1926, 44 STAT.
568, 572, SEC. 6.  THE 1938 ACT ALSO DECLARES "A PUBLIC RIGHT OF
FREEDOM OF TRANSIT" FOR AIR COMMERCE IN THE NAVIGABLE AIR SPACE TO
EXIST FOR ANY CITIZEN OF THE UNITED STATES.  52 STAT. 980, SEC. 3, 49
U.S.C. SEC. 403.  (FN9) 

THE PROVISION PERTINENT TO SOVEREIGNTY OVER THE NAVIGABLE AIR SPACE
IN THE AIR COMMERCE ACT OF 1926 WAS AN ASSERTION OF EXCLUSIVE NATIONAL
SOVEREIGNTY.  THE CONVENTION BETWEEN THE UNITED STATES AND OTHER
NATIONS RESPECTING INTERNATIONAL CIVIL AVIATION RATIFIED AUGUST 6,
1946, 61 STAT. 1180, ACCORDS.  THE ACT, HOWEVER, DID NOT EXPRESSLY
EXCLUDE THE SOVEREIGN POWERS OF THE STATES.  H.R. REP. NO. 572, 69TH
CONG., 1ST SESS., P. 10.  THE CIVIL AERONAUTICS ACT OF 1938 GIVES NO
SUPPORT TO A DIFFERENT VIEW.  (FN10)  AFTER THE ENACTMENT OF THE AIR
COMMERCE ACT, MORE THAN TWENTY STATES ADOPTED THE UNIFORM AERONAUTICS
ACT.  IT HAD THREE PROVISIONS INDICATING THAT THE STATES DID NOT
CONSIDER THEIR SOVEREIGNTY AFFECTED BY THE NATIONAL ACT EXCEPT TO THE
EXTENT THAT THE STATES HAD CEDED THAT SOVEREIGNTY BY CONSTITUTIONAL
GRANT.  (FN11)  THE RECOMMENDATION OF THE NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS TO THE STATES TO ENACT THIS ACT WAS
WITHDRAWN IN 1943.  (FN12)  WHERE ADOPTED, HOWEVER, IT CONTINUES IN
EFFECT.  SEE UNITED STATES V. PRAYLOU, 208 F.2D 291.  RECOGNIZING THIS
"EXCLUSIVE NATIONAL SOVEREIGNTY" AND RIGHT OF FREEDOM IN AIR TRANSIT,
THIS COURT IN UNITED STATES V. CAUSBY, 328 U.S. 256, 261, NEVERTHELESS
HELD THAT THE OWNER OF LAND MIGHT RECOVER FOR A TAKING BY NATIONAL USE
OF NAVIGABLE AIR SPACE, RESULTING IN DESTRUCTION IN WHOLE OR IN PART OF
THE USEFULNESS OF THE LAND PROPERTY. 

THESE FEDERAL ACTS REGULATING AIR COMMERCE ARE BOTTOMED ON THE
COMMERCE POWER OF CONGRESS, NOT ON NATIONAL OWNERSHIP OF THE NAVIGABLE
AIR SPACE, AS DISTINGUISHED FROM SOVEREIGNTY.  IN REPORTING THE BILL
WHICH BECAME THE AIR COMMERCE ACT, IT WAS SAID: 

"THE DECLARATION OF WHAT CONSTITUTES NAVIGABLE AIR SPACE IS AN
EXERCISE OF THE SAME SOURCE OF POWER, THE INTERSTATE COMMERCE CLAUSE,
AS THAT UNDER WHICH CONGRESS HAS LONG DECLARED IN MANY ACTS WHAT
CONSTITUTES NAVIGABLE OR NONNAVIGABLE WATERS.  THE PUBLIC RIGHT OF
FLIGHT IN THE NAVIGABLE AIR SPACE OWES ITS SOURCE TO THE SAME
CONSTITUTIONAL BASIS WHICH, UNDER DECISIONS OF THE SUPREME COURT, HAS
GIVEN RISE TO A PUBLIC EASEMENT OF NAVIGATION IN THE NAVIGABLE WATERS
OF THE ADJACENT OR SUBJACENT SOIL."  H.R. REP. NO. 572, 69TH CONG., 1ST
SESS., P. 10. 

THE COMMERCE POWER, SINCE GIBBONS V. OGDEN, 9 WHEAT.  1, 193, HAS
COMPREHENDED NAVIGATION OF STREAMS.  ITS BREADTH COVERS ALL COMMERCIAL
INTERCOURSE.  BUT THE FEDERAL COMMERCE POWER OVER NAVIGABLE STREAMS
DOES NOT PREVENT STATE ACTION CONSISTENT WITH THAT POWER.  GILMAN V.
PHILADELPHIA, 3 WALL.  713, 729.  SINCE, OVER STREAMS, CONGRESS ACTS BY
VIRTUE OF THE COMMERCE POWER, THE SOVEREIGNTY OF THE STATE IS NOT
IMPAIRED.  OKLAHOMA V. ATKINSON CO., 313 U.S. 508, 534.  THE TITLE TO
THE BEDS AND THE BANKS ARE IN THE STATES AND THE RIPARIAN OWNERS,
SUBJECT TO THE FEDERAL POWER OVER NAVIGATION.  (FN13)  FEDERAL
REGULATION OF INTERSTATE LAND AND WATER CARRIERS UNDER THE COMMERCE
POWER HAS NOT BEEN DEEMED TO DENY ALL STATE POWER TO TAX THE PROPERTY
OF SUCH CARRIERS.  WE CONCLUDE THAT EXISTENT FEDERAL AIR-CARRIER
REGULATION DOES NOT PRECLUDE THE NEBRASKA TAX CHALLENGED HERE. 

NOR HAS APPELLANT DEMONSTRATED THAT THE COMMERCE CLAUSE OTHERWISE
BARS THIS TAX AS A BURDEN ON INTERSTATE COMMERCE.  (FN14)  WE HAVE
FREQUENTLY REITERATED THAT THE COMMERCE CLAUSE DOES NOT IMMUNIZE
INTERSTATE INSTRUMENTALITIES FROM ALL STATE TAXATION, BUT THAT SUCH
COMMERCE MAY BE REQUIRED TO PAY A NONDISCRIMINATORY SHARE OF THE TAX
BURDEN.  (FN15)  AND APPELLANT DOES NOT ALLEGE THAT THIS NEBRASKA
STATUTE DISCRIMINATES AGAINST IT NOR, AS NOTED ABOVE, DOES IT CHALLENGE
THE REASONABLENESS OF THE APPORTIONMENT PRESCRIBED BY THE STATUTE. 
(FN16) 

THE ARGUMENT UPON WHICH APPELLANT DEPENDS ULTIMATELY, HOWEVER, IS
THAT ITS AIRCRAFT NEVER "ATTAINED A TAXABLE SITUS WITHIN NEBRASKA" FROM
WHICH IT ARGUES THAT THE NEBRASKA TAX IMPOSES A BURDEN ON INTERSTATE
COMMERCE.  IN RELYING UPON THE COMMERCE CLAUSE ON THIS ISSUE AND IN NOT
SPECIFICALLY CLAIMING PROTECTION UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, APPELLANT NAMES THE WRONG CONSTITUTIONAL CLAUSE
TO SUPPORT ITS POSITION.  WHILE THE QUESTION OF WHETHER A COMMODITY EN
ROUTE TO MARKET IS SUFFICIENTLY SETTLED IN A STATE FOR PURPOSE OF
SUBJECTION TO A PROPERTY TAX HAS BEEN DETERMINED BY THIS COURT AS A
COMMERCE CLAUSE QUESTION, (FN17) THE BARE QUESTION WHETHER AN
INSTRUMENTALITY OF COMMERCE HAS TAX SITUS IN A STATE FOR THE PURPOSE OF
SUBJECTION TO A PROPERTY TAX IS ONE OF DUE PROCESS.  (FN18)  HOWEVER,
APPELLANT TIMELY RAISED AND PRESERVED ITS CONTENTION THAT ITS PROPERTY
WAS NOT TAXABLE BECAUSE SUCH PROPERTY HAD ATTAINED NO TAXABLE SITUS IN
NEBRASKA.  THOUGH INEXPLICIT, WE CONSIDER THE DUE PROCESS ISSUE WITHIN
THE CLEAR INTENDMENT OF SUCH CONTENTION AND HOLD SUCH ISSUE
SUFFICIENTLY PRESENTED.  SEE NEW YORK EX REL. BRYANT V. ZIMMERMAN, 278
U.S. 63, 67, AND CASES CITED; ROBERTSON AND KIRKHAM, JURISDICTION OF
THE SUPREME COURT OF THE UNITED STATES (WOLFSON AND KURLAND ED.), 149
ET SEQ. 

APPELLANT RELIES UPON CASES INVOLVING OCEAN-GOING VESSELS TO SUPPORT
ITS CONTENTION THAT ITS AIRCRAFT ATTAINED NO TAX SITUS IN NEBRASKA. 
SEE, E.G., HAYS V. PACIFIC MAIL S.S. CO., 17 HOW.  596; MORGAN V.
PARHAM, 16 WALL.  471; SOUTHERN PACIFIC CO. V. KENTUCKY, 222 U.S. 63. 
THE FIRST TWO CASES WERE EFFORTS TO TAX THE ENTIRE VALUE OF THE SHIPS
AS OTHER LOCAL PROPERTY, WITHOUT APPORTIONMENT, WHEN THEY WERE USED TO
PLOW THE OPEN SEAS.  THE LAST CASE HOLDS THAT STATE OF CORPORATE
DOMICILE HAS POWER TO TAX VESSELS THAT ARE NOT TAXABLE ELSEWHERE.  A
CLOSER ANALOGY EXISTS BETWEEN PLANES FLYING INTERSTATE AND BOATS THAT
PLY THE INLAND WATERS.  WE PERCEIVE NO LOGICAL BASIS FOR DISTINGUISHING
THE CONSTITUTIONAL POWER TO IMPOSE A TAX ON SUCH AIRCRAFT FROM THE
POWER TO IMPOSE TAXES ON RIVER BOATS.  OTT V. MISSISSIPPI VALLEY BARGE
LINE CO., 336 U.S. 169; STANDARD OIL CO. V. PECK, 342 U.S. 382.  THE
LIMITATION IMPOSED BY THE DUE PROCESS CLAUSE UPON STATE POWER TO IMPOSE
TAXES UPON SUCH INSTRUMENTALITIES WAS SUCCINCTLY STATED IN THE OTT
CASE:  "SO FAR AS DUE PROCESS IS CONCERNED THE ONLY QUESTION IS WHETHER
THE TAX IN PRACTICAL OPERATION HAS RELATION TO OPPORTUNITIES, BENEFITS,
OR PROTECTION CONFERRED OR AFFORDED BY THE TAXING STATE."  336 U.S., AT
174.  IN CURRY V. MCCANLESS, 307 U.S. 357, THE EVOLUTION OF SUCH
RESTRICTION ON STATE POWER WAS REVIEWED AND THE RULE STATED THUSLY: 

"WHEN WE SPEAK OF THE JURISDICTION TO TAX LAND OR CHATTELS AS BEING
EXCLUSIVELY IN THE STATE WHERE THEY ARE PHYSICALLY LOCATED, WE MEAN NO
MORE THAN THAT THE BENEFIT AND PROTECTION OF LAWS ENABLING THE OWNER TO
ENJOY THE FRUITS OF HIS OWNERSHIP AND THE POWER TO REACH EFFECTIVELY
THE INTERESTS PROTECTED, FOR THE PURPOSE OF SUBJECTING THEM TO PAYMENT
OF A TAX, ARE SO NARROWLY RESTRICTED TO THE STATE IN WHOSE TERRITORY
THE PHYSICAL PROPERTY IS LOCATED AS TO SET PRACTICAL LIMITS TO TAXATION
BY OTHERS."  ID., AT 364. 

THUS THE SITUS ISSUE DEVOLVES INTO THE QUESTION OF WHETHER EIGHTEEN
STOPS PER DAY BY APPELLANT'S AIRCRAFT IS SUFFICIENT CONTACT WITH
NEBRASKA TO SUSTAIN THAT STATE'S POWER TO LEVY AN APPORTIONED AD
VALOREM TAX ON SUCH AIRCRAFT.  WE THINK SUCH REGULAR CONTACT IS
SUFFICIENT TO ESTABLISH NEBRASKA'S POWER TO TAX EVEN THOUGH THE SAME
AIRCRAFT DOES NOT LAND EVERY DAY AND EVEN THOUGH NONE OF THE AIRCRAFT
IS CONTINUOUSLY WITHIN THE STATE.  "THE BASIS OF THE JURISDICTION IS
THE HABITUAL EMPLOYMENT OF THE PROPERTY WITHIN THE STATE."  (FN19)
APPELLANT RENTS ITS GROUND FACILITIES AND PAYS FOR FUEL IT PURCHASES IN
NEBRASKA.  THIS LEAVES IT IN THE POSITION OF OTHER CARRIERS SUCH AS
RAILS, BOATS, AND MOTORS THAT PAY FOR THE USE OF LOCAL FACILITIES SO AS
TO HAVE THE OPPORTUNITY TO EXPLOIT THE COMMERCE, TRAFFIC, AND TRADE
THAT ORIGINATES IN OR REACHES NEBRASKA.  APPROXIMATELY ONE-TENTH OF
APPELLANT'S REVENUE IS PRODUCED BY THE PICKUP AND DISCHARGE OF NEBRASKA
FREIGHT AND PASSENGERS.  NEBRASKA CERTAINLY AFFORDS PROTECTION DURING
SUCH STOPS AND THESE REGULAR LANDINGS ARE CLEARLY A BENEFIT TO
APPELLANT. 

NOR DO WE THINK THE NEBRASKA'S POWER TO LEVY THIS TAX WAS AFFECTED BY
THE MERGER OF MID-CONTINENT WITH BRANIFF.  SINCE "THE RULE WHICH
PERMITS TAXATION BY TWO OR MORE STATES ON AN APPORTIONMENT BASIS
PRECLUDES TAXATION OF ALL OF THE PROPERTY BY THE STATE OF THE
DOMICILE," STANDARD OIL CO. V. PECK, SUPRA, AT 384, WE DEEM IT
IMMATERIAL THAT BEFORE THE MERGER MID-CONTINENT WAS DOMICILED IN
DELAWARE, A STATE THROUGH WHICH ITS PLANES DID NOT FLY, AND AFTER THE
MERGER BRANIFF IS DOMICILED IN OKLAHOMA, A STATE THROUGH WHICH THESE
AIRCRAFT MAKE REGULAR FLIGHTS. 

APPELLANT URGES THAT NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292,
PRECLUDES THIS TAX UNLESS THAT CASE IS TO BE OVERRULED.  IN THAT CASE
MINNESOTA, AS THE DOMICILE OF THE AIR CARRIER AND ITS "HOME PORT," WAS
PERMITTED TO TAX THE ENTIRE VALUE OF THE FLEET AD VALOREM ALTHOUGH IT
RANGED BY FIXED ROUTES THROUGH EIGHT STATES.  (FN20)  WHILE NO ONE VIEW
MUSTERED A MAJORITY OF THIS COURT, IT SEEMS FAIR TO SAY THAT WITHOUT
THE POSITION STATED IN THE CONCLUSION AND JUDGMENT WHICH ANNOUNCED THE
DECISION OF THIS COURT, THE RESULT WOULD HAVE BEEN THE REVERSE.  THAT
POSITION WAS THAT IT WAS NOT SHOWN "THAT A DEFINED PART OF THE
DOMICILIARY CORPUS HAD ACQUIRED A PERMANENT LOCATION, I.E., A TAXING
SITUS, ELSEWHERE."  P. 295.  THAT OPINION RECOGNIZED THE "DOCTRINE OF
TAX APPORTIONMENT FOR INSTRUMENTALITIES ENGAGED IN INTERSTATE
COMMERCE," P. 297, BUT HELD IT INAPPLICABLE BECAUSE NO "PROPERTY (OR A
PORTION OF FUNGIBLE UNITS) IS PERMANENTLY SITUATED IN A STATE OTHER
THAN THE DOMICILIARY STATE."  P. 298.  WHEN STANDARD OIL CO. V. PECK,
342 U.S. 382, 384, WAS HERE, THE COURT INTERPRETED THE NORTHWEST
AIRLINES CASE TO PERMIT STATES OTHER THAN THOSE OF THE CORPORATE
DOMICILE TO TAX BOATS IN INTERSTATE COMMERCE ON THE APPORTIONMENT BASIS
IN ACCORDANCE WITH THEIR USE IN THE TAXING STATE.  WE ADHERE TO THAT
INTERPRETATION.  AFFIRMED. 

FN1  NEB. REV. STAT., 1943, SEC. 77-1244 ET SEQ. 

FN2 ID., SEC. 77-1244(3). 

FN3  ID., SEC. 77-1245. 

FN4  IBID.  THIS SECTION PROVIDES THAT "THE PROPORTION OF FLIGHT
EQUIPMENT ALLOCATED TO THIS STATE FOR PURPOSES OF TAXATION SHALL BE THE
ARITHMETICAL AVERAGE OF THE FOLLOWING THREE RATIOS:  (1) THE RATIO
WHICH THE AIRCRAFT ARRIVALS AND DEPARTURES WITHIN THE STATE SCHEDULED
BY SUCH AIR CARRIER DURING THE PRECEDING CALENDAR YEAR BEARS TO THE
TOTAL AIRCRAFT ARRIVALS AND DEPARTURES WITHIN AND WITHOUT THE STATE
SCHEDULED BY SUCH CARRIER DURING THE SAME PERIOD; PROVIDED, THAT IN THE
CASE OF NONSCHEDULED OPERATIONS ALL ARRIVALS AND DEPARTURES SHALL BE
SUBSTITUTED FOR SCHEDULED ARRIVALS AND DEPARTURES; (2) THE RATIO WHICH
THE REVENUE TONS HANDLED BY SUCH AIR CARRIER AT AIRPORTS WITHIN THIS
STATE DURING THE PRECEDING CALENDAR YEAR BEARS TO THE TOTAL REVENUE
TONS HANDLED BY SUCH CARRIER AT AIRPORTS WITHIN AND WITHOUT THIS STATE
DURING THE SAME PERIOD; AND (3) THE RATIO WHICH SUCH AIR CARRIER'S
ORIGINATING REVENUE WITHIN THIS STATE FOR THE PRECEDING CALENDAR YEAR
BEARS TO THE TOTAL ORIGINATING REVENUE OF SUCH CARRIER WITHIN AND
WITHOUT THIS STATE FOR THE SAME PERIOD." 

FN5  RESOLUTIONS, THE EIGHTH GENERAL ASSEMBLY OF THE STATES, 20 STAT.
GOVERNMENT 95. 

FN6  MULTIPLE TAXATION OF AIR COMMERCE, H.R. DOC. NO. 141, 79TH
CONG., 1ST SESS.  RECOMMENDATIONS BY VARIOUS INTERESTED GROUPS AS TO
THE PROPER METHOD OF APPORTIONMENT ARE INCLUDED IN THAT REPORT AND ITS
APPENDICES.  SEE ALSO ARDITTO, STATE AND LOCAL TAXATION OF SCHEDULED
LOCAL AIRLINES, 16 J. AIR L. & COM. 162; KASSELL, INTERSTATE
COOPERATION AND AIRLINES, 25 TAXES 302.  MR. BULWINKLE INTRODUCED BILLS
IN ACCORDANCE WITH THE RECOMMENDATION OF THE C.A.B. REPORT THAT THE
NATIONAL GOVERNMENT SHOULD PRESCRIBE THE METHOD OF STATE TAXATION OF
AIR CARRIERS.  THE BILLS ADOPTED THE COUNCIL FORMULA UTILIZED BY
NEBRASKA.  NEITHER WAS ENACTED.  H.R. 3446, 79TH CONG., 1ST SESS.; H.R.
1241, 80TH CONG., 1ST SESS. 

FN7  NEB. REV. STAT., 1943, SECS. 77-1247, 77-1249. 

FN8  MID-CONTINENT AIRLINES, INC.V. NEBRASKA STATE BOARD OF
EQUALIZATION AND ASSESSMENT, 157 NEB. 425, 59 N.W.2D 746. 

FN9  THAT SPACE WAS DEFINED IN SEC. 10 OF THE AIR COMMERCE ACT AND
FREEDOM FOR ITS NAVIGATION DECLARED.  THIS WAS CONTINUED BY THE CIVIL
AERONAUTICS ACT, 49 U.S.C. SEC. 180, IN "AIRSPACE ABOVE THE MINIMUM
SAFE ALTITUDES OF FLIGHT PRESCRIBED BY THE CIVIL AERONAUTICS
AUTHORITY." 

FN10  S. REP. NO. 1661, 75TH CONG., 3D SESS.; H.R. REP. NO. 2254,
75TH CONG., 3D SESS.; H.R. CONF. REP. NO. 2635, 75TH CONG., 3D SESS.

FN11  11 UNIFORM LAWS ANNOTATED 159, 160: 

"SEC. 2.  SOVEREIGNTY IN SPACE.  - SOVEREIGNTY IN THE SPACE ABOVE THE
LANDS AND WATERS OF THIS STATE IS DECLARED TO REST IN THE STATE, EXCEPT
WHERE GRANTED TO AND ASSUMED BY THE UNITED STATES PURSUANT TO A
CONSTITUTIONAL GRANT FROM THE PEOPLE OF THIS STATE. 

"SEC. 3.  OWNERSHIP OF SPACE.  - THE OWNERSHIP OF THE SPACE ABOVE THE
LANDS AND WATERS OF THIS STATE IS DECLARED TO BE VESTED IN THE SEVERAL
OWNERS OF THE SURFACE BENEATH, SUBJECT TO THE RIGHT OF FLIGHT DESCRIBED
IN SECTION 4. 

"SEC. 4.  LAWFULNESS OF FLIGHT.  - FLIGHT IN AIRCRAFT OVER THE LANDS
AND WATERS OF THIS STATE IS LAWFUL, UNLESS AT SUCH A LOW ALTITUDE AS TO
INTERFERE WITH THE THEN EXISTING USE TO WHICH THE LAND OR WATER, OR THE
SPACE OVER THE LAND OR WATER, IS PUT BY THE OWNER, OR UNLESS SO
CONDUCTED AS TO BE IMMINENTLY DANGEROUS TO PERSONS OR PROPERTY LAWFULLY
ON THE LAND OR WATER BENEATH.  THE LANDING OF AN AIRCRAFT ON THE LANDS
OR WATERS OF ANOTHER, WITHOUT HIS CONSENT, IS UNLAWFUL, EXCEPT IN THE
CASE OF A FORCED LANDING.  FOR DAMAGES CAUSED BY A FORCED LANDING,
HOWEVER, THE OWNER OR LESSEE OF THE AIRCRAFT OR THE AERONAUT SHALL BE
LIABLE, AS PROVIDED IN SECTION 5." 

FN12  SEE CONFERENCE HANDBOOK, 1943, PP. 66-67.  EFFORTS CONTINUE TO
DRAFT AN ACCEPTABLE STATE UNIFORM AERONAUTICAL CODE.  SEE CONFERENCE
HANDBOOK, 1948, P. 147. 

FN13  UNITED STATES V. CHANDLER-DUNBAR WATER POWER CO., 229 U.S. 53,
60; UNITED STATES V. KANSAS CITY INS. CO., 339 U.S. 799, 808; FEDERAL
POWER COMM'N V. NIAGARA MOHAWK POWER CORP., 347 U.S. 239, 246 ET SEQ. 

FN14  IN ITS ORIGINAL PETITION APPELLANT ALSO ALLEGED THAT THE
NEBRASKA STATUTE IS INVALID UNDER SEC. 9, CL. 6, AND SEC. 10, CL. 3 OF
ART. I OF THE CONSTITUTION.  WHILE NOTING THAT SUCH CONTENTIONS WERE
APPARENTLY "ABANDONED IN THE BRIEF AND ORAL ARGUMENT," THE COURT BELOW
HELD SUCH PROVISIONS OF THE CONSTITUTION NOT VIOLATED.  SINCE APPELLANT
DID NOT PRESERVE SUCH CONTENTIONS IN ITS STATEMENT AS TO JURISDICTION,
WE DO NOT CONSIDER SUCH ISSUES. 

FN15  WESTERN LIVE STOCK V. BUREAU, 303 U.S. 250, 254; MICHIGAN
WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S. 157, 165. 

FN16  SEE PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141 U.S. 18; FORD
MOTOR CO. V. BEAUCHAMP, 308 U.S. 331; NASHVILLE, C. & ST. L.R. CO. V.
BROWNING, 310 U.S. 362; GREYHOUND LINES V. MEALEY, 334 U.S. 653, 654,
662, 663; OTT V. MISSISSIPPI VALLEY BARGE LINE CO., 336 U.S. 169, 174;
CANTON R. CO. V. ROGAN, 340 U.S. 511, 514-516; MULTIPLE TAXATION OF AIR
COMMERCE, H.R. DOC. NO. 141, 79TH CONG., 1ST SESS.; ARDITTO, STATE AND
LOCAL TAXATION OF SCHEDULED LOCAL AIRLINES, 16 J. AIR L. & COMM. 162;
HOWARD, STATE TAXATION OF AIRPLANES IN INTERSTATE COMMERCE, 10 MO. L.
REV. 195; WELCH, THE TAXATION OF AIR CARRIERS, 11 LAW & CONTEMP. 
PROB.  584; GREEN, THE WAR AGAINST THE STATES IN AVIATION, 31 VA. L.
REV. 835; SUTHERLAND AND VINCIGUERRA, THE OCTROI AND THE AIRPLANE, 32
CORNELL L.Q. 161; SAXE, FEDERAL CONTROL OF THE STATE TAXATION OF
AIRLINES, 31 CORNELL L.Q. 228; TERNES, AVIATION TAXATION, 25 MICH.
S.B.J. 23; NOTE, 57 HARV. L. REV. 1097. 

FN17  SEE, E.G., INDEPENDENT WAREHOUSES V. SCHEELE, 331 U.S. 70, 72;
CARSON PETROLEUM CO. V. VIAL, 279 U.S. 95; CHAMPLAIN REALTY CO. V.
BRATTLEBORO, 260 U.S. 366; GENERAL OIL CO. V. CRAIN, 209 U.S. 211; COE
V. ERROL, 116 U.S. 517; BROWN V. HOUSTON, 114 U.S. 622; POWELL,
TAXATION OF THINGS IN TRANSIT, 7 VA. L. REV. 167, 245, 429, 497. 

FN18  SEE, E.G., JOHNSON OIL RFG.  CO. V. OKLAHOMA, 290 U.S. 158;
FRICK V. PENNSYLVANIA, 268 U.S. 473; UNION REFRIGERATOR TRANSIT CO. V.
KENTUCKY, 199 U.S. 194; DELAWARE, L.&W.R.  CO. V. PENNSYLVANIA, 198
U.S. 341; 1 BEALE, CONFLICT OF LAWS, 533 ET SEQ.; MOORE, TAXATION OF
MOVABLES AND THE FOURTEENTH AMENDMENT, 7 COL. L. REV. 309; PAGE,
JURISDICTION TO TAX TANGIBLE MOVABLES, 1945 WIS. L. REV. 125. 

WHILE THE COMMON-LAW CONCEPT OF SITUS WAS RECOGNIZED BY THIS COURT AS
A LIMITATION ON STATE POWER TO TAX TANGIBLE PERSONAL PROPERTY PRIOR TO
INVOCATION OF THE FOURTEENTH AMENDMENT AS A DEFENSE TO SUCH TAXATION,
THE BASES FOR SUCH DECISIONS VARIED AND NO CONSISTENT CONSTITUTIONAL
PRINCIPLE WAS APPLIED.  COMPARE THE FOLLOWING CASES:  HAYS V. PACIFIC
MAIL S.S. CO., 17 HOW.  596; MORGAN V. PARHAM, 16 WALL.  471; ST. LOUIS
V. THE FERRY CO., 11 WALL.  423; MARYE V. BALTIMORE & O.R. CO., 127
U.S. 117; PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141 U.S. 18; ADAMS
EXPRESS CO. V. OHIO STATE AUDITOR, 165 U.S. 194.  SEE ALSO HARTMAN,
STATE TAXATION OF INTERSTATE COMMERCE, 13, 73 ET SEQ. 

A COLLECTION OF THIS COURT'S DECISIONS DEALING WITH POWER TO TAX MAY
BE FOUND IN AN APPENDIX TO MILLER BROS. CO. V. MARYLAND, 347 U.S. 340,
NOTES 8-20. 

FN19  JOHNSON OIL RFG.  CO. V. OKLAHOMA, SUPRA, AT 162.  SEE ALSO
PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, SUPRA; OTT V. MISSISSIPPI
VALLEY BARGE LINE CO., SUPRA. 

FN20  SUBSEQUENT TO THE NORTHWEST AIRLINES CASE, MINNESOTA ENACTED A
TAX STATUTE INCORPORATING AN APPORTIONMENT FORMULA FOR ALLOCATION OF
THE VALUATION OF PROPERTY OF AIR CARRIERS TO MINNESOTA.  MINN. STAT.,
1945, SECS. 270.071-270.079, AS AMENDED, MINN.  LAWS 1953, C. 672,
SECS. 2-3. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON DISSENTS FOR THE REASONS STATED IN HIS CONCURRING
OPINION IN NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292, 302. 

MR. JUSTICE DOUGLAS, CONCURRING. 

BRANIFF AIRWAYS, IN CHALLENGING THE POWER OF NEBRASKA TO LAY THIS AD
VALOREM TAX, CLAIMS ONLY THAT ITS PLANES HAVE NO TAXABLE SITUS IN THE
STATE.  IT DOES NOT CLAIM THAT NO FRACTION OF THE AIRCRAFT, ON AN
APPORTIONED BASIS, IS PERMANENTLY IN THE STATE.  NOR DOES IT ATTACK
THIS APPORTIONMENT FORMULA. 

MY UNDERSTANDING OF OUR DECISIONS IS THAT THE POWER TO LAY AN AD
VALOREM TAX TURNS ON THE PERMANENCY OF THE PROPERTY IN THE STATE.  ALL
PROPERTY MAY BE THERE OR ONLY A FRACTION OF IT. PROPERTY IN TRANSIT,
WHETHER A PLANE DISCHARGING PASSENGERS OR AN AUTOMOBILE REFUELING, IS
NOT SUBJECT TO AN AD VALOREM TAX.  PROPERTY IN TRANSIT MAY MOVE SO
REGULARLY AND SO CONTINUOUSLY THAT PART OF IT IS ALWAYS IN THE STATE. 
THEN THE FRACTION, BUT NO MORE, MAY BE TAXED AD VALOREM. 

I MENTION THESE ELEMENTAL POINTS TO RESERVE EXPLICITLY THE VALIDITY
OF THE APPORTIONMENT FORMULA THAT SERVES AS THE BASIS OF THIS AD
VALOREM TAX.  THE FORMULA USED PRESENTS SUBSTANTIAL QUESTIONS.  WHAT
MIGHT BE AN ADEQUATE FORMULA FOR A GROSS RECEIPTS TAX MIGHT BE
INADEQUATE FOR AN AD VALOREM TAX.  MOREOVER, WHEN WE ARE FACED WITH A
DUE PROCESS QUESTION, WE HAVE A PROBLEM WE MAY NOT DELEGATE TO
CONGRESS. 

I DO NOT THINK THE COURT TAKES A POSITION CONTRARY TO WHAT I HAVE
SAID.  BUT THERE ARE PASSAGES IN THE OPINION WHICH BLUR THE
CONSTITUTIONAL ISSUES AS THEY ARE BLURRED AND CONFUSED IN THE
INTERESTING REPORT OF THE CIVIL AERONAUTICS BOARD, H.R. DOC. NO. 141,
79TH CONG., 1ST SESS., ENTITLED MULTIPLE TAXATION OF AIR COMMERCE. 
HENCE I HAVE JOINED IN THE JUDGMENT OF THE COURT BUT NOT IN THE
OPINION. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

ONE OF THE MOST TREACHEROUS TENDENCIES IN LEGAL REASONING IS THE
TRANSFER OF GENERALIZATIONS DEVELOPED FOR ONE SET OF SITUATIONS TO
SEEMINGLY ANALOGOUS, YET ESSENTIALLY VERY DIFFERENT, SITUATIONS.  THE
DOCTRINES EVOLVED IN ADJUSTING RIGHTS AS BETWEEN THE STATES TO TAX
PROPERTY BEARING SOME RELATION TO A NUMBER OF STATES, AND THE TAXING
POWER OF THE STATES AS AGAINST THE FREEDOM FROM STATE INTERFERENCES
SECURED BY THE COMMERCE CLAUSE, BEAR, OF COURSE, A PRACTICAL RELATION
TO WHAT IT IS THAT IS TAXED.  IT TOOK A CONSIDERABLE TIME TO MAKE THIS
ADJUSTMENT IN REGARD TO TAXATION OF RAILROAD PROPERTY AND RAILROAD
INCOME - TO DECIDE WHEN THE STATES ARE WHOLLY EXCLUDED FROM LEVYING
CERTAIN TAXES, WHEN AN AD VALOREM TAX MAY BE LEVIED ON RAILROAD
PROPERTY REASONABLY DEEMED TO BE PERMANENTLY IN A GIVEN STATE, AND ON
WHAT BASIS INCOME FROM INTERSTATE RAILROAD BUSINESS MAY FAIRLY BE
APPORTIONED AMONG DIFFERENT STATES.  EVEN AS TO RAILROADS, NICE
DISTINCTIONS HAD TO BE MADE AND THE MAKING OF THEM HAS NOT BEEN
CONCLUDED. 

IT STANDS TO REASON THAT THE DRASTIC DIFFERENCES BETWEEN SLOW-MOVING
TRAINS AND THE BIRD-LIKE FLIGHT OF AIRPLANES WOULD BE REFLECTED IN THE
LAW'S RESPONSE TO THE CLAIMS OF THE DIFFERENT STATES AND THE
LIMITATIONS OF THE COMMERCE CLAUSE UPON THOSE CLAIMS.  THE DIFFERENCES
IN RESULT AND THE CONFLICT EVEN AMONG THOSE WHO AGREED IN RESULT IN
NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292, DEMONSTRATE NOT THE
CONTRARINESS OR CAPRICE OF DIFFERENT MINDS BUT THE INHERENT
PERPLEXITIES OF THE LAW'S ADJUSTMENT TO SUCH NOVEL PROBLEMS AS THE
EXERCISE OF THE TAXING POWER OVER COMMERCIAL AVIATION IN A FEDERAL
SYSTEM.  THE PROBLEMS CANVASSED IN THAT CASE WERE UNPRECEDENTED, AND
PERHAPS THE MOST IMPORTANT THING THAT WAS THERE DECIDED WAS THE REFUSAL
OF THE COURT TO APPLY TO AIR TRANSPORTATION THE DOCTRINES THAT HAD BEEN
ENUNCIATED WITH REGARD TO LAND AND WATER TRANSPORTATION.    THE PLAIN
INTIMATION OF THE CASE - THAT THESE NOVEL PROBLEMS, AFFECTING THE
TAXING POWER OF THE STATES AND THE NATION, CALL FOR THE COMPREHENSIVE
POWERS OF LEGISLATION POSSESSED BY CONGRESS - FOUND RESPONSE IN A
RESOLUTION OF CONGRESS DIRECTING THE CIVIL AERONAUTICS BOARD TO DEVELOP
THE "MEANS FOR ELIMINATING AND AVOIDING, AS FAR AS PRACTICABLE,
MULTIPLE TAXATION OF PERSONS ENGAGED IN AIR COMMERCE  ...  WHICH HAS
THE EFFECT OF UNDULY BURDENING OR UNDULY IMPEDING THE DEVELOPMENT OF
AIR COMMERCE."  58 STAT. 723.  THE INQUIRY THUS SET AFOOT PRODUCED AN
ILLUMINATING REPORT.  SEE H.R. DOC. NO. 141, 79TH CONG., 1ST SESS.,
WHICH ANALYZED THE DIFFICULTIES AND ALSO MADE CONCRETE PROPOSALS. 
(FN1)  THE GIST OF THESE PROPOSALS WAS THAT CONGRESS MAKE AN
APPORTIONMENT OF TAXES AMONG THE STATES OVER WHICH AIR CARRIERS FLY,
BASED UPON RELEVANT FACTORS AND IN APPROPRIATE RATIOS.   THE BASIS OF
TAXATION BY NEBRASKA, HERE UNDER REVIEW, SUBSTANTIALLY REFLECTS THE
FACTORS WHICH THE CIVIL AERONAUTICS BOARD RECOMMENDED TO THE CONGRESS. 
IT IS ONE THING, HOWEVER, FOR THE INDIVIDUAL STATES TO DETERMINE WHAT
FACTORS SHOULD BE TAKEN INTO ACCOUNT AND HOW THEY SHOULD BE WEIGHED. 
IT IS QUITE ANOTHER FOR CONGRESS TO DEVISE, AS THE CIVIL AERONAUTICS
BOARD RECOMMENDED IT SHOULD, A SCHEME OF APPORTIONMENT BINDING ON ALL
THE STATES.  UNTIL THAT TIME, NEBRASKA MAY RELY ON ONE SCHEME OF
APPORTIONMENT; OTHER STATES ON OTHER SCHEMES.  AND EACH STATE MAY, FROM
TIME TO TIME, MODIFY THE RELEVANT FACTORS.  (FN2) 

THE EXERCISE OF THE TAXING POWER BY ONE OF THE STATES BY MEANS OF A
FORMULA, BASED ON SUCH CRITERIA AS TONNAGE, REVENUE, AND ARRIVALS AND
DEPARTURES, MAY, IN ISOLATION, IMPOSE NO UNFAIR BURDEN ON COMMERCE. 
AND THE ADOPTION BY ALL THE STATES OF SUCH A BASIS FOR TAXATION, WHICH
ONLY CONGRESSIONAL ACTION COULD ENSURE, WOULD NOT OFFEND THE COMMERCE
CLAUSE.  IT IS THE DIVERSE AND FLUCTUATING EXERCISE OF POWER BY THE
VARIOUS STATES, EVEN WHERE BASED ON CONCEDEDLY RELEVANT FACTORS, WHICH
IMPOSES AN UNDUE BURDEN ON INTERSTATE COMMERCE.  (FN3) 

THE COMPLEXITY OF THE PROPOSALS OF THE BOARD'S REPORT - THE ITEMS TO
BE TAKEN INTO ACCOUNT, THE BALANCE TO BE STRUCK AMONG THEM, THE PROBLEM
OF GIVING THE STATES THEIR DUE WITHOUT UNFAIRLY BURDENING AN INDUSTRY
OF VITAL NATIONAL IMPORT - INDICATES HOW ILL-ADAPTED THE JUDICIAL
PROCESS IS, AS AGAINST THE CHOICES OPEN TO CONGRESS, FOR DEALING WITH
THESE PROBLEMS AND HOW WARILY THIS COURT SHOULD MOVE WITHIN THE LIMITS
OF ITS OWN INESCAPABLE DUTY TO ACT.  THE PROTECTION OF INTERSTATE
COMMERCE AGAINST THE BURDEN OF MULTIPLE TAXATION OUGHT NOT TO BE LEFT
TO LITIGATION GROWING OUT OF CHANGES IN THE METHODS OF TAXATION. 

"THE IMMUNITIES IMPLICIT IN THE COMMERCE CLAUSE AND THE POTENTIAL
TAXING POWER OF A STATE CAN HARDLY BE MADE TO DEPEND, IN THE WORLD OF
PRACTICAL AFFAIRS, ON THE SHIFTING INCIDENCE OF THE VARYING TAX LAWS OF
THE VARIOUS STATES AT A PARTICULAR MOMENT.  COURTS ARE NOT POSSESSED OF
INSTRUMENTS OF DETERMINATION SO DELICATE AS TO ENABLE THEM TO WEIGH THE
VARIOUS FACTORS IN A COMPLICATED ECONOMIC SETTING WHICH, AS TO AN
ISOLATED APPLICATION OF A STATE TAX, MIGHT MITIGATE THE OBVIOUS BURDEN
GENERALLY CREATED BY A DIRECT TAX ON COMMERCE."  FREEMAN V. HEWIT, 329
U.S. 249, 256. 

THIS WOULD NOT BE THE ONLY INSTANCE IN WHICH A CONSTRUCTIVE
ADJUSTMENT OF COMPETING CONSIDERATIONS REQUIRES CONGRESSIONAL
LEGISLATION AND IS BEYOND THE SCOPE OF THE JUDICIAL PROCESS.  SEE,
DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249, 259; UNITED STATES V.
STANDARD OIL CO., 332 U.S. 301; HALCYON LINES V. HAENN SHIP CEILING &
REFITTING CORP., 342 U.S. 282; UNITED STATES V. GILMAN, 347 U.S. 507. 

IT WAS NOT TOO DIFFICULT IN NORTHWEST AIRLINES TO ALLOW MINNESOTA TO
LEVY A PERSONAL PROPERTY TAX ON THE ENTIRE FLEET OF AIRPLANES OWNED BY
A CORPORATION OF ITS CREATION, THE PRINCIPAL PLACE OF BUSINESS OF WHICH
WAS ALSO MINNESOTA.  THE STATE OF MINNESOTA, AS WE SAID, WAS THE ONLY
STATE THAT HAD SUCH A HOLD ON THE PLANES.  IN THE CASE BEFORE US,
NEBRASKA HAS NO SUCH RELATION WITH THE AIRPLANES ON WHICH IT SEEKS TO
IMPOSE AN AD VALOREM TAX. 

THIS COURT HAS HELD THAT A STATE MAY LEVY AN AD VALOREM TAX  ON THE
BASIS OF A SHOWING THAT THE TOTAL TIME SPENT IN A STATE BY DIFFERENT
UNITS OF A CARRIER'S PROPERTY IS SUCH THAT A CERTAIN PROPORTION OF THAT
PROPERTY MAY BE SAID TO HAVE A PERMANENT LOCATION IN THAT STATE.  SUCH
A DOCTRINE OF APPORTIONMENT, AS THE BASIS OF PROPERTY TAXATION, WAS
ADOPTED BY THIS COURT IN PULLMAN'S CAR CO. V. PENNSYLVANIA, 141 U.S.
18, WITH RELATION TO RAILROAD CARS; AND IN OTT V. MISSISSIPPI BARGE
LINE CO., 336 U.S. 169, WITH RELATION TO BARGES.  BUT BOATS AND
RAILROAD CARS WHICH SPEND HOURS AND DAYS AT A TIME IN A STATE HAVE A
CLOSENESS AND DURATION OF RELATIONSHIP TO THAT STATE OBVIOUSLY NOT TRUE
OF PLANES WHICH MAKE BRIEF STOPOVERS FOR A FEW MINUTES. 

THE APPEALING PHRASE THAT "INTERSTATE BUSINESS MUST PAY ITS WAY" CAN
BE INVOKED ONLY WHEN WE KNOW WHAT THE "WAY" IS FOR WHICH INTERSTATE
BUSINESS MUST PAY.  OF COURSE, THE APPELLANT MUST PAY FOR THE USE OF
THE AIRPORTS AND OTHER SERVICES IT ENJOYS IN NEBRASKA.  IT MUST PAY A
TAX ON ALL ITS PROPERTY PERMANENTLY LOCATED IN NEBRASKA.  LIKE EVERYONE
ELSE IT MUST PAY A GASOLINE TAX.  IN FACT IT PAYS APPROXIMATELY $22,000
A YEAR FOR THE USE OF THE AIRPORT, $14,000 A YEAR IN GASOLINE TAXES,
AND APPROPRIATE PROPERTY TAXES ON OFFICE EQUIPMENT, TRUCKS AND OTHER
ITEMS PERMANENTLY IN NEBRASKA. 

BUT ONLY THOSE WHO HAVE A SUFFICIENTLY SUBSTANTIAL RELATION TO
NEBRASKA THAT THEY MAY FAIRLY BE SAID TO PARTAKE OF THE BENEFITS,
THOUGH IMPALPABLE AND UNSPECIFIC, IT GIVES AS AN ORDERED SOCIETY, MAY
BE TAXED BECAUSE THEY PARTAKE OF THOSE BENEFITS.  AND EVEN THEN, OF
COURSE, AN UNDUE BURDEN MUST NOT BE CAST ON COMMERCE.  NOT UNLESS
NEBRASKA CAN SHOW THAT APPELLANT HAS AIRPLANES THAT HAVE A
SUBSTANTIALLY PERMAMENT PRESENCE IN NEBRASKA CAN NEBRASKA EXERT ITS
TAXING POWER ON THEIR PRESENCE.  I DO NOT BELIEVE THAT PLANES WHICH
PAUSE FOR A FEW MOMENTS CAN BE MADE THE BASIS FOR THE EXERCISE OF SUCH
POWER.  (FN4)  IF NEBRASKA CAN TAX WITHOUT SUCH A TIE, EVERY OTHER
STATE THROUGH WHICH THE PLANES FLY OR IN WHICH THEY ALIGHT FOR A FEW
MINUTES CAN TAX.  SURELY THIS IS AN OBVIOUS INROAD UPON THE COMMERCE
CLAUSE AND AS SUCH BARRED BY THE CONSTITUTION. 

IT CANNOT BE SAID THAT FOR AIRPLANES, FLYING REGULARLY SCHEDULED
FLIGHTS, TO ALIGHT, STOP OVER FOR A SHORT TIME AND THEN TAKE OFF IS SO
TENUOUSLY RELATED TO NEBRASKA THAT IT WOULD DENY DUE PROCESS FOR THAT
STATE TO SEIZE ON THESE SHORT STOPOVERS AS THE BASIS OF AN AD VALOREM
TAX.  BUT THE INCIDENCE OF A TAX MAY OFFEND THE COMMERCE CLAUSE, EVEN
THOUGH IT MAY SATISFY THE DUE PROCESS CLAUSE. 

I AM NOT UNAWARE THAT THERE IS AN AIR OF IMPRECISION ABOUT WHAT I
HAVE WRITTEN.  SUCH IS THE INTENTION.  UNTIL CONGRESS ACTS, THE VITAL
THING FOR THE COURT IN THIS NEW AND SUBTLE FIELD IS TO FOCUS ON THE
PROCESS OF INTERSTATE COMMERCE AND PROTECT IT FROM INROADS OF TAXATION
BY A STATE BEYOND "OPPORTUNITIES WHICH IT HAS GIVEN,  ...  PROTECTION
WHICH IT HAS AFFORDED,  ...  BENEFITS WHICH IT HAS CONFERRED BY THE
FACT OF BEING AN ORDERLY, CIVILIZED SOCIETY."  WISCONSIN V. J.C. PENNEY
CO., 311 U.S. 435, 444. 

FN1  THE PROPOSAL OF THIS REPORT - THAT THERE BE A UNIFORM ALLOCATION
FORMULA TO APPORTION TAXES AMONG THE STATES - WAS ADOPTED BY THE
COUNCIL OF STATE GOVERNMENTS.  SEE 20 STATE GOVERNMENT 95.  HOWEVER NO
FEDERAL LEGISLATION HAS YET RESULTED. 

FN2  IN ADDITION TO THE PROBLEM OF CONFLICT BETWEEN APPORTIONMENT
SCHEMES OF VARIOUS STATES, IT MUST BE BORNE IN MIND THAT THESE SCHEMES
CANNOT BE REGARDED AS ABSTRACT MATHEMATICAL FORMULAS, AND HENCE THEY
MUST BE CLOSELY SCRUTINIZED TO ENSURE THEIR FAIRNESS AS APPLIED TO A
GIVEN SITUATION.  SEE WALLACE V. HINES, 253 U.S. 66. 

FN3  LEST IT BE THOUGHT ONE FORMULA OF APPORTIONMENT IS CLEARLY THE
APPROPRIATE ONE, IT SHOULD BE NOTED THAT THE BOARD'S REPORT SETS FORTH
THREE FORMULAS PROPOSED BY RESPONSIBLE GROUPS, IN ADDITION TO THAT
RECOMMENDED BY THE BOARD.  AND WHILE NEBRASKA ADOPTED THE FACTORS
RECOMMENDED BY THE BOARD, IT DID NOT GIVE THEM THE SAME WEIGHT WHICH
THE BOARD'S PROPOSED FORMULA DID.  SEE H.R. DOC. NO. 141, 79TH CONG.,
1ST SESS. 58. 

FN4  WITH THE EXCEPTION OF ONE PLANE WHICH REMAINS IN NEBRASKA
OVERNIGHT, ALL OF THE COMPANY'S PLANES REMAIN IN NEBRASKA FOR PERIODS
OF BETWEEN FIVE AND TWENTY MINUTES EACH DAY.  CONSIDERING THIS BRIEF
TIME SPENT ON THE GROUND BY PLANES WHICH STOP IN TRANSIT, MORE THAN A
BARE ASSERTION THAT FLIGHT EQUIPMENT IS "PERMANENTLY" IN NEBRASKA IS
CALLED FOR TO ESTABLISH THE REQUISITE PERMANENCE FOR TAXING PURPOSES. 
..END :













ALTON V. ALTON 347 U.S. 610 


NO. 531.  ARGUED APRIL 7, 1954 - DECIDED JUNE 1, 1954 - 207 F.2D 667,
JUDGMENT VACATED AND CAUSE REMANDED. 


AN ACTION FOR DIVORCE IN THE DISTRICT COURT OF THE VIRGIN ISLANDS BY
THE WIFE OF A CONNECTICUT DOMICILIARY WAS DISMISSED FOR WANT OF
JURISDICTION.  WHILE A REVIEW OF THAT DECISION WAS PENDING HERE, THE
HUSBAND OBTAINED A FINAL DIVORCE IN A CONNECTICUT STATE COURT.  HELD:
IN THE CIRCUMSTANCES STATED IN THE OPINION, THE JUDGMENT OF THE
DISTRICT COURT OF THE VIRGIN ISLANDS MUST BE VACATED AND THE CAUSE
DISMISSED AS MOOT. 

ALTON V. ALTON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

PETITIONER BROUGHT THIS ARGUMENT FOR DIVORCE IN THE VIRGIN ISLANDS. 
FOLLOWING ARGUMENT AND SUBMISSION OF THE CASE IN THIS COURT, WE WERE
AUTHORITATIVELY ADVISED THAT A FINAL DIVORCE DECREE HAD BEEN ENTERED ON
APRIL 28, 1954, IN THE STATE OF CONNECTICUT ON APPLICATION OF THE
RESPONDENT.  THE SUPERIOR COURT OF CONNECTICUT FOUND RESPONDENT TO BE A
DOMICILIARY OF THAT STATE AND PETITIONER HERE PERSONALLY APPEARED IN
THAT ACTION.  PETITIONER DOES NOT SUGGEST THAT SHE REPUDIATES HER
APPEARANCE IN THE CONNECTICUT ACTION, THAT THE CONNECTICUT DECREE IS
INVALID IN ANY WAY, OR, IN FACT, THAT THERE IS ANY COLORABLE BASIS FOR
CHALLENGING IT.  NOR DOES PETITIONER SEEK ANY ANCILLARY RELIEF IN THE
INSTANT DIVORCE ACTION THAT COULD NOT BE OBTAINED IN AN INDEPENDENT
ACTION IN THE VIRGIN ISLANDS. 

ON THE PREMISES, THIS CASE APPEARS TO BE MOOT.  THE JUDGMENT OF THE
COURT OF APPEALS IS VACATED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS TO VACATE ITS JUDGMENT AND TO DISMISS THE
PROCEEDING UPON THE GROUND THAT THE CAUSE IS MOOT. 

MR. JUSTICE BLACK DISSENTS.  HE IS OF THE OPINION THAT PETITIONER IS
ENTITLED TO HAVE HER DIVORCE CASE TRIED IN THE VIRGIN ISLANDS SINCE
UNDER THE HOLDING AND OPINION IN WILLIAMS V. NORTH CAROLINA, 325 U.S.
226, THE CONNECTICUT DIVORCE DECREE DOES NOT NECESSARILY PROTECT
PETITIONER FROM CONVICTION FOR BIGAMY IN THE VIRGIN ISLANDS OR ANYWHERE
ELSE. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :




GALVAN V. PRESS 347 U.S. 522 


NO. 407.  ARGUED JANUARY 11-12, 1954 - DECIDED MAY 24, 1954 - 201 F.2D
302, AFFIRMED. 


1.  SECTION 22 OF THE INTERNAL SECURITY ACT OF 1950, PROVIDING FOR THE
DEPORTATION OF ANY ALIEN WHO HAS BEEN A MEMBER OF THE COMMUNIST PARTY
AT ANY TIME AFTER ENTRY, IS CONSTITUTIONAL - AS HERE APPLIED TO A
RESIDENT ALIEN SHOWN TO HAVE BEEN WILLINGLY A MEMBER OF THE COMMUNIST
PARTY FROM 1944 TO 1946 ALTHOUGH NOT SHOWN TO HAVE BEEN AWARE OF ITS
ADVOCACY OF VIOLENT OVERTHROW OF THE GOVERNMENT.  PP. 523-532. 

(A)  IN THE LIGHT OF THE BROAD POWER OF CONGRESS OVER THE ADMISSION
AND DEPORTATION OF ALIENS, IT CANNOT BE SAID THAT THE CLASSIFICATION BY
CONGRESS CONTAINED IN SEC. 22 IS SO BASELESS AS TO BE VIOLATIVE OF DUE
PROCESS AND THEREFORE BEYOND THE POWER OF CONGRESS.  PP. 529-532. 

(B)  THE EXPOST FACTO CLAUSE OF THE CONSTITUTION HAS NO APPLICATION
TO DEPORTATION.  P. 531. 

2.  ON THE RECORD IN THIS CASE, THE EVIDENCE ADDUCED AT THE
ADMISINISTRATIVE HEARINGS WAS SUFFICIENT TO SUPPORT A FINDING THAT
PETITIONER, A RESIDENT ALIEN, HAD BEEN A "MEMBER" OF THE COMMUNIST
PARTY FROM 1944 TO 1946 AND, THEREFORE, WAS DEPORTABLE UNDER SEC. 22 OF
THE INTERNAL SECURITY ACT OF 1950, EVEN THOUGH HE MAY NOT HAVE KNOWN
THE FULL PURPOSES OR PROGRAM OF THE COMMUNIST PARTY.  PP. 523-529. 

(A)  THE WORD "MEMBER" IN SEC. 22 CANNOT BE CONSTRUED AS APPLYING
ONLY TO ALIENS WHO JOINED THE COMMUNIST PARTY FULLY CONSCIOUS OF ITS
ADVOCACY OF VIOLENCE.  PP. 525-529. 

(B)  IT IS ENOUGH THAT THE ALIEN JOINED THE PARTY, AWARE THAT HE WAS
JOINING AN ORGANIZATION KNOWN AS THE COMMUNIST PARTY WHICH OPERATES AS
A DISTINCT AND ACTIVE POLITICAL ORGANIZATION, AND THAT HE DID SO OF HIS
OWN FREE WILL.  P. 528. 

(C)  THE RECORD IN THIS CASE DOES NOT SHOW A RELATIONSHIP TO THE
PARTY SO NOMINAL AS NOT TO MAKE PETITIONER A "MEMBER" WITHIN THE TERMS
OF THE ACT.  PP. 528-529. 

GALVAN V. PRESS, OFFICER IN CHARGE, IMMIGRATION AND NATURALIZATION
SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AN ALIEN OF MEXICAN BIRTH, FIRST ENTERED THE UNITED
STATES IN 1918 AND HAS SINCE RESIDED HERE WITH ONLY OCCASIONAL BRIEF
VISITS TO HIS NATIVE COUNTRY.  IN THE COURSE OF TWO QUESTIONINGS, IN
MARCH 1948, BY THE IMMIGRATION AND NATURALIZATION SERVICE, HE INDICATED
THAT HE HAD BEEN A MEMBER OF THE COMMUNIST PARTY FROM 1944 TO 1946.  IN
MARCH OF 1949, THE PETITIONER WAS SERVED WITH A DEPORTATION WARRANT,
AND ON THE SAME DAY A PRELIMINARY DEPORTATION HEARING WAS HELD TO
ACQUAINT HIM WITH THE CHARGES AGAINST HIM - THAT AFTER ENTRY HE HAD
BECOME A MEMBER OF AN ORGANIZATION WHICH ADVOCATED THE VIOLENT
OVERTHROW OF THE UNITED STATES GOVERNMENT, AND OF AN ORGANIZATION WHICH
DISTRIBUTED MATERIAL SO ADVOCATING.  IN DECEMBER 1950, PETITIONER HAD A
DE NOVO HEARING AT WHICH THE TRANSCRIPTS OF ALL EARLIER PROCEEDINGS
WERE, BY AGREEMENT, MADE PART OF THE RECORD.  SHORTLY AFTER THE HEARING
COMMENCED, THE EXAMINING OFFICER LODGED THE ADDITIONAL CHARGE AGAINST
THE PETITIONER THAT AFTER ENTRY HE HAD BEEN A MEMBER OF THE COMMUNIST
PARTY, MEMBERSHIP IN WHICH HAD BEEN MADE A SPECIFIC GROUND FOR
DEPORTATION BY THE INTERNAL SECURITY ACT OF 1950, 64 STAT. 987, 1006,
1008. 

AT THIS FINAL HEARING THE EVIDENCE AGAINST THE PETITIONER WAS DERIVED
FROM TWO PRINCIPAL SOURCES.  THE FIRST WAS HIS OWN TESTIMONY DURING THE
TWO INTERROGATIONS BY IMMIGRATION AUTHORITIES IN 1948.  DURING THOSE
INTERROGATIONS, HE HAD TESTIFIED AS TO THE TIME AND PLACE HE HAD JOINED
THE COMMUNIST PARTY, TALKED FREELY ABOUT HIS MEMBERSHIP IN THE PARTY,
AND INDICATED GENERALLY THAT THE DISTINCTION BETWEEN THE PARTY AND
OTHER GROUPS WAS CLEAR IN HIS MIND; HE HAD EXPLAINED THAT THE REASON HE
HAD NOT APPLIED FOR NATURALIZATION WAS THAT HE FEARED HIS FORMER PARTY
MEMBERSHIP MIGHT BE REVEALED, AND HAD OFFERED TO MAKE AMENDS BY
REJOINING THE PARTY AS AN UNDERCOVER AGENT FOR THE GOVERNMENT.  AT THE
HEARING IN DECEMBER OF 1950, PETITIONER DENIED THAT IN HIS PRIOR
HEARING HE HAD ADMITTED JOINING THE PARTY, INSISTING THAT AT THE TIME
HE THOUGHT THE QUESTION RELATED TO LABOR UNION ACTIVITIES.  IN RESPONSE
TO A QUESTION WHETHER HE HAD EVER ATTENDED MEETINGS OF THE SPANISH
SPEAKING CLUB, AN ALLEGED COMMUNIST PARTY UNIT, HE REPLIED:  "THE ONLY
MEETINGS I ATTENDED WERE RELATING TO THE FAIR EMPLOYMENT PRACTICES
COMMITTEE." 

THE SECOND SOURCE OF INFORMATION WAS THE TESTIMONY OF A MRS. MEZA TO
THE EFFECT THAT SHE HAD BEEN PRESENT WHEN PETITIONER WAS ELECTED AN
OFFICER OF THE SPANISH SPEAKING CLUB.  PETITIONER DENIED THE TRUTH OF
THIS AND OTHER STATEMENTS OF MRS. MEZA CALCULATED TO ESTABLISH HIS
ACTIVE PARTICIPATION IN THE COMMUNIST PARTY AND SAID:  "SHE MUST HAVE
BEEN UNDER GREAT STRAIN TO IMAGINE ALL THOSE THINGS." 

THE HEARING OFFICER FOUND THAT PETITIONER HAD BEEN A MEMBER OF THE
COMMUNIST PARTY FROM 1944 TO 1946 AND ORDERED HIM DEPORTED ON THAT
SPECIFIC GROUND.  HE DID NOT DEEM IT NECESSARY TO MAKE FINDINGS ON THE
MORE GENERAL CHARGES CONTAINED IN THE ORIGINAL WARRANT.  THE HEARING
OFFICER'S DECISION WAS ADOPTED BY THE ASSISTANT COMMISSIONER AND AN
APPEAL WAS DISMISSED BY THE BOARD OF IMMIGRATION APPEALS.  A PETITION
FOR A WRIT OF HABEAS CORPUS WAS DENIED BY THE DISTRICT COURT, AND THE
DISMISSAL WAS AFFIRMED BY THE COURT OF APPEALS FOR THE NINTH CIRCUIT. 
201 F.2D 302. 

ON CERTIORARI, PETITIONER CHALLENGED THE SUFFICIENCY OF THE EVIDENCE
TO SUSTAIN DEPORTATION UNDER SEC. 22 OF THE INTERNAL SECURITY ACT OF
1950 AND ATTACKED THE VALIDITY OF THE ACT AS APPLIED TO HIM.   (FN1)
THESE ARE ISSUES THAT RAISE THE CONSTITUTIONALITY AND CONSTRUCTION OF
THE 1950 ACT FOR THE FIRST TIME AND SO WE GRANTED CERTIORARI.  346 U.S.
812. 

PETITIONER'S CONTENTION THAT THERE WAS NOT SUFFICIENT EVIDENCE TO
SUPPORT THE DEPORTATION ORDER BRINGS INTO QUESTION THE SCOPE OF THE
WORD "MEMBER" AS USED BY CONGRESS IN THE ENACTMENT OF 1950, WHEREBY IT
REQUIRED DEPORTATION OF ANY ALIEN WHO AT THE TIME OF ENTERING THE
UNITED STATES, OR AT ANY TIME THEREAFTER, WAS A "MEMBER" OF THE
COMMUNIST PARTY.  (FN2)  WE ARE URGED TO CONSTRUE THE ACT AS PROVIDING
FOR THE DEPORTATION ONLY OF THOSE ALIENS WHO JOINED THE COMMUNIST PARTY
FULLY CONSCIOUS OF ITS ADVOCACY OF VIOLENCE, AND WHO, BY SO JOINING,
THEREBY COMMITTED THEMSELVES TO THIS VIOLENT PURPOSE. 

BUT THE ACT ITSELF APPEARS TO PRECLUDE AN INTERPRETATION WHICH WOULD
REQUIRE PROOF THAT AN ALIEN HAD JOINED THE COMMUNIST PARTY WITH FULL
APPRECIATION OF ITS PURPOSES AND PROGRAM.  IN THE SAME SECTION UNDER
WHICH THE PETITIONER'S DEPORTATION IS SOUGHT HERE AS A FORMER COMMUNIST
PARTY MEMBER, THERE IS ANOTHER PROVISION, SUBSECTION (2)(E), WHICH
REQUIRES THE EXCLUSION OR DEPORTATION OF ALIENS WHO ARE "MEMBERS OF OR
AFFILIATED WITH" AN ORGANIZATION REQUIRED TO REGISTER UNDER THE
INTERNAL SECURITY ACT OF 1950, (FN3) "UNLESS SUCH ALIENS ESTABLISH THAT
THEY DID NOT KNOW OR HAVE REASON TO BELIEVE AT THE TIME THEY BECAME
MEMBERS OF OR AFFILIATED WITH SUCH AN ORGANIZATION  ... THAT SUCH
ORGANIZATION WAS A COMMUNIST ORGANIZATION."  64 STAT. 1007.  IN
DESCRIBING THE PURPOSE OF THIS CLAUSE, SENATOR MCCARRAN, THE ACT'S
SPONSOR, SAID:  "ALIENS WHO WERE INNOCENT DUPES WHEN THEY JOINED A
COMMUNIST-FRONT ORGANIZATION, AS DISTINGUISHED FROM A COMMUNIST
POLITICAL ORGANIZATION (SUCH AS THE COMMUNIST PARTY), WOULD LIKEWISE
NOT IPSO FACTO BE EXCLUDED OR DEPORTED."  96 CONG. REC. 14180.  IN VIEW
OF THIS SPECIFIC ESCAPE PROVISION FOR MEMBERS OF OTHER ORGANIZATIONS,
IT SEEMS CLEAR THAT CONGRESS DID NOT EXEMPT "INNOCENT" MEMBERS OF THE
COMMUNIST PARTY. 

WHILE THE LEGISLATIVE HISTORY OF THE 1950 ACT IS NOT ILLUMINATING ON
THE SCOPE OF "MEMBER," CONSIDERABLE LIGHT WAS SHED BY AUTHORITATIVE
COMMENT IN THE DEBATES ON THE STATUTE WHICH CONGRESS ENACTED IN 1951 TO
CORRECT WHAT IT REGARDED AS THE UNDULY EXPANDED INTERPRETATION BY THE
ATTORNEY GENERAL OF "MEMBER" UNDER THE 1950 ACT.  65 STAT. 28.  THE
AMENDATORY STATUTE DEALT WITH CERTAIN SPECIFIC SITUATIONS WHICH HAD
BEEN BROUGHT TO THE ATTENTION OF CONGRESS AND PROVIDED THAT WHERE
ALIENS HAD JOINED A PROSCRIBED ORGANIZATION (1) WHEN THEY WERE
CHILDREN, (2) BY OPERATION OF LAW, OR (3) TO OBTAIN THE NECESSITIES OF
LIFE, THEY WERE NOT TO BE DEEMED TO HAVE BEEN "MEMBERS."  IN EXPLAINING
THE MEASURE, ITS SPONSOR, SENATOR MCCARRAN, STATED REPEATEDLY AND
EMPHATICALLY THAT "MEMBER" WAS INTENDED TO HAVE THE SAME MEANING IN THE
1950 ACT AS HAD BEEN GIVEN IT BY THE COURTS AND ADMINISTRATIVE AGENCIES
SINCE 1918, 97 CONG. REC. 2368-2374.  SEE S. REP. NO. 111, 82D CONG.,
1ST SESS. 2; H.R. REP. NO. 118, 82D CONG., 1ST SESS. 2.  TO ILLUSTRATE
WHAT "MEMBER" DID NOT COVER HE INSERTED IN THE RECORD A MEMORANDUM
CONTAINING THE FOLLOWING LANGUAGE QUOTED FROM COLYER V. SKEFFINGTON,
265 F. 17, 72:  "CONGRESS COULD NOT HAVE INTENDED TO AUTHORIZE THE
WHOLESALE DEPORTATION OF ALIENS WHO, ACCIDENTALLY, ARTIFICIALLY, OR
UNCONSCIOUSLY IN APPEARANCE ONLY, ARE FOUND TO BE MEMBERS OF OR
AFFILIATED WITH AN ORGANIZATION OF WHOSE PLATFORM AND PURPOSES THEY
HAVE NO REAL KNOWLEDGE."  97 CONG. REC. 2373. 

THIS MEMORANDUM, AS A WEIGHTY GLOSS ON WHAT CONGRESS WROTE, INDICATES
THAT CONGRESS DID NOT PROVIDE THAT THE THREE TYPES OF SITUATIONS IT
ENUMERATED IN THE 1951 CORRECTIVE STATUTE SHOULD BE THE ONLY INSTANCES
WHERE MEMBERSHIP IS SO NOMINAL AS TO KEEP AN ALIEN OUT OF THE
DEPORTABLE CLASS.  FOR EXAMPLE, THE CIRCUMSTANCES UNDER WHICH THE
FINDING OF MEMBERSHIP WAS REJECTED IN COLYER V. SKEFFINGTON, SUPRA,
WOULD NOT HAVE BEEN COVERED BY THE SPECIFIC LANGUAGE IN THE 1951 ACT. 
IN THAT CASE, THE ALIENS PASSED "FROM ONE ORGANIZATION INTO ANOTHER,
SUPPOSING THE CHANGE TO BE A MERE CHANGE OF NAME, AND THAT BY ASSENTING
TO MEMBERSHIP IN THE NEW ORGANIZATION THEY HAD NOT REALLY CHANGED THEIR
AFFILIATIONS OR POLITICAL OR ECONOMIC ACTIVITIES."  265 F., AT 72. 

ON THE OTHER HAND, THE REPEATED STATEMENTS THAT "MEMBER"" WAS TO HAVE
THE SAME MEANING UNDER THE 1950 ACT AS PREVIOUSLY, PRECLUDE AN
INTERPRETATION LIMITED TO THOSE WHO WERE FULLY COGNIZANT OF THE PARTY'S
ADVOCACY OF VIOLENCE.  FOR THE JUDICIAL AND ADMINISTRATIVE DECISIONS
PRIOR TO 1950 DO NOT EXEMPT ALIENS WHO JOINED AN ORGANIZATION UNAWARE
OF ITS PROGRAM AND PURPOSES.  SEE KJAR V. DOAK, 61 F.2D 566; GRECO V.
HAFF, 63 F.2D 863; IN THE MATTER OF O - , 3 I.&N. DEC. 736. 

IT MUST BE CONCLUDED, THEREFORE, THAT SUPPORT, OR EVEN DEMONSTRATED
KNOWLEDGE, OF THE COMMUNIST PARTY'S ADVOCACY OF VIOLENCE WAS NOT
INTENDED TO BE A PREREQUISITE TO DEPORTATION.  IT IS ENOUGH THAT THE
ALIEN JOINED THE PARTY, AWARE THAT HE WAS JOINING AN ORGANIZATION KNOWN
AS THE COMMUNIST PARTY WHICH OPERATES AS A DISTINCT AND ACTIVE
POLITICAL ORGANIZATION, AND THAT HE DID SO OF HIS OWN FREE WILL.  A
FAIR READING OF THE LEGISLATION REQUIRES THAT THIS SCOPE BE GIVEN TO
WHAT CONGRESS ENACTED IN 1950, HOWEVER SEVERE THE CONSEQUENCES AND
WHATEVER VIEW ONE MAY HAVE OF THE WISDOM OF THE MEANS WHICH CONGRESS
EMPLOYED TO MEET ITS DESIRED END. 

ON THIS BASIS, THE HEARING OFFICER'S FINDING THAT PETITIONER HERE WAS
A "MEMBER" OF THE COMMUNIST PARTY MUST BE SUSTAINED.  PETITIONER DOES
NOT CLAIM THAT HE JOINED THE PARTY "ACCIDENTALLY, ARTIFICIALLY, OR
UNCONSCIOUSLY IN APPEARANCE ONLY," TO USE THE WORDS IN SENATOR
MCCARRAN'S MEMORANDUM.  THE TWO POINTS ON WHICH HE BASES HIS DEFENSE
AGAINST THE DEPORTATION ORDER ARE, FIRST, THAT HE DID NOT JOIN THE
PARTY AT ALL, AND THAT IF HE DID JOIN, HE WAS UNAWARE OF THE PARTY'S
TRUE PURPOSES AND PROGRAM.  THE EVIDENCE WHICH MUST HAVE BEEN BELIEVED
AND RELIED UPON FOR THE HEARING OFFICER'S FINDING THAT PETITIONER WAS A
"MEMBER" IS THAT PETITIONER WAS ASKED TO JOIN THE PARTY BY A MAN HE
ASSUMED TO BE AN ORGANIZER, THAT HE ATTENDED A NUMBER OF MEETINGS AND
THAT HE DID NOT APPLY FOR CITIZENSHIP BECAUSE HE FEARED HIS PARTY
MEMBERSHIP WOULD BECOME KNOWN TO THE AUTHORITIES.  IN ADDITION, ON THE
BASIS OF MRS. MEZA'S TESTIMONY, THE HEARING OFFICER WAS ENTITLED TO
CONCLUDE THAT PETITIONER HAD BEEN ACTIVE IN THE SPANISH SPEAKING CLUB,
AND, INDEED, ONE OF ITS OFFICERS.  CERTAINLY THERE WAS SUFFICIENT
EVIDENCE TO SUPPORT A FINDING OF MEMBERSHIP.  AND EVEN IF PETITIONER
WAS UNAWARE OF THE PARTY'S ADVOCACY OF VIOLENCE, AS HE ATTEMPTED TO
PROVE, THE RECORD DOES NOT SHOW A RELATIONSHIP TO THE PARTY SO NOMINAL
AS NOT TO MAKE HIM A "MEMBER" WITHIN THE TERMS OF THE ACT. 

THIS BRINGS US TO PETITIONER'S CONSTITUTIONAL ATTACK ON THE STATUTE. 
HARISIADES V. SHAUGHNESSY, 342 U.S. 580, SUSTAINED THE
CONSTITUTIONALITY OF THE ALIEN REGISTRATION ACT OF 1940.  54 STAT.
670.  THAT ACT MADE MEMBERSHIP IN AN ORGANIZATION WHICH ADVOCATES THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE A
GROUND FOR DEPORTATION, NOTWITHSTANDING THAT MEMBERSHIP IN SUCH
ORGANIZATION HAD TERMINATED BEFORE ENACTMENT OF THE STATUTE.  UNDER THE
1940 ACT, IT WAS NECESSARY TO PROVE IN EACH CASE, WHERE MEMBERSHIP IN
THE COMMUNIST PARTY WAS MADE THE BASIS OF DEPORTATION, THAT THE PARTY
DID, IN FACT, ADVOCATE THE VIOLENT OVERTHROW OF THE GOVERNMENT.  THE
INTERNAL SECURITY ACT OF 1950 DISPENSED WITH THE NEED FOR SUCH PROOF. 
ON THE BASIS OF EXTENSIVE INVESTIGATION CONGRESS MADE MANY FINDINGS,
INCLUDING THAT IN SEC. 2(1) OF THE ACT THAT THE "COMMUNIST MOVEMENT
...  IS A WORLD-WIDE REVOLUTIONARY MOVEMENT WHOSE PURPOSE IT IS, BY
TREACHERY, DECEIT, INFILTRATION INTO OTHER GROUPS (GOVERNMENTAL AND
OTHERWISE), ESPIONAGE, SABOTAGE, TERRORISM, AND ANY OTHER MEANS DEEMED
NECESSARY, TO ESTABLISH A COMMUNIST TOTALITARIAN DICTATORSHIP."  AND
MADE PRESENT OR FORMER MEMBERSHIP IN THE COMMUNIST PARTY, IN AND OF
ITSELF, A GROUND FOR DEPORTATION.  CERTAINLY, WE CANNOT SAY THAT THIS
CLASSIFICATION BY CONGRESS IS SO BASELESS AS TO BE VIOLATIVE OF DUE
PROCESS AND THEREFORE BEYOND THE POWER OF CONGRESS. 

IN THIS RESPECT - THE DISPENSATION WITH PROOF OF THE CHARACTER OF THE
COMMUNIST PARTY - THE PRESENT CASE GOES BEYOND HARISIADES.  BUT INSOFAR
AS PETITIONER'S CONSTITUTIONAL CLAIM IS BASED ON HIS IGNORANCE THAT THE
PARTY WAS COMMITTED TO VIOLENCE, THE SAME ISSUE WAS BEFORE THE COURT
WITH RESPECT TO AT LEAST ONE OF THE ALIENS IN HARISIADES. 

THE POWER OF CONGRESS OVER THE ADMISSION OF ALIENS AND THEIR RIGHT TO
REMAIN IS NECESSARILY VERY BROAD, TOUCHING AS IT DOES BASIC ASPECTS OF
NATIONAL SOVEREIGNTY, MORE PARTICULARLY OUR FOREIGN RELATIONS AND THE
NATIONAL SECURITY.  NEVERTHELESS, CONSIDERING WHAT IT MEANS TO DEPORT
AN ALIEN WHO LEGALLY BECAME PART OF THE AMERICAN COMMUNITY, AND THE
EXTENT TO WHICH, SINCE HE IS A "PERSON," AN ALIEN HAS THE SAME
PROTECTION FOR HIS LIFE, LIBERTY AND PROPERTY UNDER THE DUE PROCESS
CLAUSE AS IS AFFORDED TO A CITIZEN, DEPORTATION WITHOUT PERMITTING THE
ALIEN TO PROVE THAT HE WAS UNAWARE OF THE COMMUNIST PARTY'S ADVOCACY OF
VIOLENCE STRIKES ONE WITH A SENSE OF HARSH INCONGRUITY.  IF DUE PROCESS
BARS CONGRESS FROM ENACTMENTS THAT SHOCK THE SENSE OF FAIR PLAY - WHICH
IS THE ESSENCE OF DUE PROCESS - ONE IS ENTITLED TO ASK WHETHER IT IS
NOT BEYOND THE POWER OF CONGRESS TO DEPORT AN ALIEN WHO WAS DUPED INTO
JOINING THE COMMUNIST PARTY, PARTICULARLY WHEN HIS CONDUCT ANTEDATED
THE ENACTMENT OF THE LEGISLATION UNDER WHICH HIS DEPORTATION IS
SOUGHT.  AND THIS BECAUSE DEPORTATION MAY, AS THIS COURT HAS SAID IN NG
FUNG HO V. WHITE, 259 U.S. 276, 284, DEPRIVE A MAN "OF ALL THAT MAKES
LIFE WORTH LIVING"; AND, AS IT HAS SAID IN FONG HAW TAN V. PHELAN, 333
U.S. 6, 10, "DEPORTATION IS A DRASTIC MEASURE AND AT TIMES THE
EQUIVALENT OF BANISHMENT OR EXILE."    IN LIGHT OF THE EXPANSION OF THE
CONCEPT OF SUBSTANTIVE DUE PROCESS AS A LIMITATION UPON ALL POWERS OF
CONGRESS, EVEN THE WAR POWER, SEE HAMILTON V. KENTUCKY DISTILLERIES
CO., 251 U.S. 146, 155, MUCH COULD BE SAID FOR THE VIEW, WERE WE
WRITING ON A CLEAN SLATE, THAT THE DUE PROCESS CLAUSE QUALIFIES THE
SCOPE OF POLITICAL DISCRETION HERETOFORE RECOGNIZED AS AS BELONGING TO
CONGRESS IN REGULATING THE ENTRY AND DEPORTATION OF ALIENS.  AND SINCE
THE INTRINSIC CONSEQUENCES OF DEPORTATION ARE SO CLOSE TO PUNISHMENT
FOR CRIME, IT MIGHT FAIRLY BE SAID ALSO THAT THE EX POST FACTO CLAUSE,
EVEN THOUGH APPLICABLE ONLY TO PUNITIVE LEGISLATION, (FN4) SHOULD BE
APPLIED TO DEPORTATION. 

BUT THE SLATE IS NOT CLEAN.  AS TO THE EXTENT OF THE POWER OF
CONGRESS UNDER REVIEW, THERE IS NOT MERELY "A PAGE OF HISTORY," NEW
YORK TRUST CO. V. EISNER, 256 U.S. 345, 349, BUT A WHOLE VOLUME. 
POLICIES PERTAINING TO THE ENTRY OF ALIENS AND THEIR RIGHT TO REMAIN
HERE ARE PECULIARLY CONCERNED WITH THE POLITICAL CONDUCT OF
GOVERNMENT.  IN THE ENFORCEMENT OF THESE POLICIES, THE EXECUTIVE BRANCH
OF THE GOVERNMENT MUST RESPECT THE PROCEDURAL SAFEGUARDS OF DUE
PROCESS.  THE JAPANESE IMMIGRANT CASE, 189 U.S. 86, 101; WONG YANG SUNG
V. MCGRATH, 339 U.S. 33, 49.  BUT THAT THE FORMULATION OF THESE
POLICIES IS ENTRUSTED EXCLUSIVELY TO CONGRESS HAS BECOME ABOUT AS
FIRMLY IMBEDDED IN THE LEGISLATIVE AND JUDICIAL TISSUES OF OUR BODY
POLITIC AS ANY ASPECT OF OUR GOVERNMENT.  AND WHATEVER MIGHT HAVE BEEN
SAID AT AN EARLIER DATE FOR APPLYING THE EX POST FACTO CLAUSE, IT HAS
BEEN THE UNBROKEN RULE OF THIS COURT THAT IT HAS NO APPLICATION TO
DEPORTATION. 

WE ARE NOT PREPARED TO DEEM OURSELVES WISER OR MORE SENSITIVE TO
HUMAN RIGHTS THAN OUR PREDECESSORS, ESPECIALLY THOSE WHO HAVE BEEN MOST
ZEALOUS IN PROTECTING CIVIL LIBERTIES UNDER THE CONSTITUTION, AND MUST
THEREFORE UNDER OUR CONSTITUTIONAL SYSTEM RECOGNIZE CONGRESSIONAL POWER
IN DEALING WITH ALIENS, ON THE BASIS OF WHICH WE ARE UNABLE TO FIND THE
ACT OF 1950 UNCONSTITUTIONAL.  SEE BUGAJEWITZ V. ADAMS, 228 U.S. 585,
AND NG FUNG HO V. WHITE, 259 U.S. 276, 280.  JUDGMENT AFFIRMED. 

FN1  IN HIS PETITION, PETITIONER ALSO CONTENDED THAT THE PROCEDURE
USED AGAINST HIM WAS UNFAIR BECAUSE OF THE NEW CHARGE LODGED BY THE
EXAMINING OFFICER IN THE DECEMBER 1950 HEARING.  APART FROM THE FACT
THAT THIS CLAIM WAS NOT PRESSED IN THE ARGUMENT OR PETITIONER'S BRIEF,
IT IS SUFFICIENT TO NOTE THAT THERE WAS NO ELEMENT OF SURPRISE IN THE
ADDITIONAL CHARGE, SINCE IT WAS SIMPLY IN MORE SPECIFIC TERMS THE SAME
GROUND FOR DEPORTATION THAT PETITIONER ALREADY KNEW HE HAD TO DEFEND
AGAINST, NAMELY, MEMBERSHIP IN THE COMMUNIST PARTY.  FURTHERMORE,
PETITIONER DECLINED THE HEARING OFFICER'S OFFER OF A CONTINUANCE TO
MEET THE NEW CHARGE. 

FN2  SECTION 22 OF THE INTERNAL SECURITY ACT OF 1950 PROVIDES THAT
THE ATTORNEY GENERAL SHALL TAKE INTO CUSTODY AND DEPORT ANY ALIEN "WHO
WAS AT THE TIME OF ENTERING THE UNITED STATES, OR HAS BEEN AT ANY TIME
THEREAFTER,  ...  A MEMBER OF ANY ONE OF THE CLASSES OF ALIENS
UNUMERATED IN SECTION 1(2) OF THIS ACT ...  ." 

SUBPARAGRAPH (C) OF SEC. 1(2) LISTS "ALIENS WHO ARE MEMBERS OF OR
AFFILIATED WITH (I) THE COMMUNIST PARTY OF THE UNITED STATES  ...  ." 
THE SUBSTANCE OF THIS PROVISION WAS INCORPORATED IN THE IMMIGRATION AND
NATIONALITY ACT OF 1952, 66 STAT. 163, 205, 8 U.S.C. SEC.
1251(A)(6)(C). 

FN3  UNDER SEC. 7 OF THE INTERNAL SECURITY ACT OF 1950, "COMMUNIST
ACTION" AND "COMMUNIST-FRONT" ORGANIZATIONS ARE REQUIRED TO REGISTER AS
SUCH WITH THE ATTORNEY GENERAL.  SECTION 13 PROVIDES THAT WHERE SUCH AN
ORGANIZATION FAILS TO REGISTER THE ATTORNEY GENERAL MAY INSTITUTE
PROCEEDINGS REQUIRING SUCH REGISTRATION. 

FN4  FIRST IN OGDEN V. SAUNDERS, 12 WHEAT.  213, 271, AND AGAIN IN
SATTERLEE V. MATTHEWSON, 2 PET. 380, 681 (APPENDIX), A
CHARACTERISTICALLY PERSUASIVE ATTACK WAS MADE BY MR. JUSTICE JOHNSON ON
THE VIEW THAT THE EX POST FACTO CLAUSE APPLIES ONLY TO PROSECUTIONS FOR
CRIME.  THE COURT, HOWEVER, HAS UNDEVIATINGLY ENFORCED THE CONTRARY
POSITION, FIRST EXPRESSED IN CALDER V. BULL, 3 DALL.  386.  IT WOULD BE
AN UNJUSTIFIABLE REVERSAL TO OVERTURN A VIEW OF THE CONSTITUTION SO
DEEPLY ROOTED AND SO CONSISTENTLY ADHERED TO. 

MR. JUSTICE REED CONCURS IN THE JUDGMENT OF THE COURT AND IN THE
OPINION AS WRITTEN, EXCEPT AS TO THE DEDUCTIONS DRAWN FROM SENATOR
MCCARRAN'S CITATION OF COLYER V. SKEFFINGTON, 265 F. 17, 72. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

PETITIONER HAS LIVED IN THIS COUNTRY THIRTY-SIX YEARS, HAVING COME
HERE FROM MEXICO IN 1918 WHEN ONLY SEVEN YEARS OF AGE.  HE HAS AN
AMERICAN WIFE TO WHOM HE HAS BEEN MARRIED FOR TWENTY YEARS, FOUR
CHILDREN ALL BORN HERE, AND A STEPSON WHO SERVED THIS COUNTRY AS A
PARATROOPER.  SINCE 1940 PETITIONER HAS BEEN A LABORER AT THE VAN CAMP
SEA FOOD COMPANY IN SAN DIEGO, CALIFORNIA.  IN 1944 PETITIONER BECAME A
MEMBER OF THE COMMUNIST PARTY.  DECIDING THAT HE NO LONGER WANTED TO
BELONG TO THAT PARTY, HE GOT OUT SOMETIME AROUND 1946 OR 1947.  AS
POINTED OUT IN THE COURT'S OPINION, DURING THE PERIOD OF HIS MEMBERSHIP
THE COMMUNIST PARTY FUNCTIONED "AS A DISTINCT AND ACTIVE POLITICAL
ORGANIZATION."  SEE COMMUNIST PARTY V. PEEK, 20 CAL. 2D 536, 127 P.2D
889.  PARTY CANDIDATES APPEARED ON CALIFORNIA ELECTION BALLOTS, AND NO
FEDERAL LAW THEN FROWNED ON COMMUNIST PARTY POLITICAL ACTIVITIES.  NOW
IN 1954, HOWEVER, PETITIONER IS TO BE DEPORTED FROM THIS COUNTRY SOLELY
BECAUSE OF HIS PAST LAWFUL MEMBERSHIP IN THAT PARTY.  AND THIS IS TO BE
DONE WITHOUT PROOF OR FINDING THAT PETITIONER KNEW THAT THE PARTY HAD
ANY EVIL PURPOSES OR THAT HE AGREED WITH ANY SUCH PURPOSES THAT IT
MIGHT HAVE HAD.  ON THE CONTRARY, THERE IS STRONG EVIDENCE THAT HE WAS
A GOOD, LAW-ABIDING MAN, A STEADY WORKER AND A DEVOTED HUSBAND AND
FATHER LOYAL TO THIS COUNTRY AND ITS FORM OF GOVERNMENT. 

FOR JOINING A LAWFUL POLITICAL GROUP YEARS AGO - AN ACT WHICH HE HAD
NO POSSIBLE REASON TO BELIEVE WOULD SUBJECT HIM TO THE SLIGHTEST
PENALTY - PETITIONER NOW LOSES HIS JOB, HIS FRIENDS, HIS HOME, AND
MAYBE EVEN HIS CHILDREN, WHO MUST CHOOSE BETWEEN THEIR FATHER AND THEIR
NATIVE COUNTRY.  PERHAPS A LEGISLATIVE ACT PENALIZING POLITICAL
ACTIVITIES LEGAL WHEN ENGAGED IN IS NOT A BILL OF ATTAINDER.  BUT SEE
UNITED STATES V. LOVETT, 328 U.S. 303, 315-316.  CONCEIVABLY AN ACT
PRESCRIBING EXILE FOR PRIOR INNOCENT CONDUCT DOES NOT VIOLATE THE
CONSTITUTIONAL PROHIBITION OF EX POST FACTO LAWS.  CF. AMERICAN
COMMUNICATIONS ASSN.  V. DOUDS, 339 U.S. 382, 412-415.  IT MAY BE
POSSIBLE THAT THIS DEPORTATION ORDER FOR ENGAGING IN POLITICAL
ACTIVITIES DOES NOT VIOLATE THE FIRST AMENDMENT'S CLEAR BAN AGAINST
ABRIDGMENT OF POLITICAL SPEECH AND ASSEMBLY.  MAYBE IT IS NOT EVEN A
DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE LAWS.  BUT SEE
DISSENTING OPINIONS IN CARLSON V. LANDON, 342 U.S. 580.  I AM UNWILLING
TO SAY, HOWEVER, THAT DESPITE THESE CONSTITUTIONAL SAFEGUARDS THIS MAN
MAY BE DRIVEN FROM OUR LAND BECAUSE HE JOINED A POLITICAL PARTY THAT
CALIFORNIA AND THE NATION THEN RECOGNIZED AS PERFECTLY LEGAL. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

AS MR. JUSTICE BLACK STATES IN HIS DISSENT, THE ONLY CHARGE AGAINST
THIS ALIEN IS AN ACT THAT WAS LAWFUL WHEN DONE.  I AGREE THAT THERE IS,
THEREFORE, NO CONSTITUTIONAL BASIS FOR DEPORTATION, IF ALIENS, AS WELL
AS CITIZENS, ARE TO BE THE BENEFICIARIES OF DUE PROCESS OF LAW. 

THE CASE MIGHT, OF COURSE, BE DIFFERENT IF THE PAST AFFILIATION WITH
COMMUNISM NOW SEIZED UPON AS THE BASIS FOR DEPORTATION HAD CONTINUED
DOWN TO THIS DATE.  BUT SO FAR AS THIS RECORD SHOWS, THE ALIEN GALVAN
QUIT THE COMMUNIST PARTY AT LEAST SIX YEARS AGO.  THERE IS NOT A WORD
IN THE PRESENT RECORD TO SHOW THAT HE CONTINUED HIS AFFILIATIONS WITH
IT SUB ROSA OR ESPOUSED ITS CAUSES OR JOINED IN ANY OF ITS ACTIVITIES
SINCE HE CEASED TO BE A MEMBER OF IT. 

I CANNOT AGREE THAT BECAUSE A MAN WAS ONCE A COMMUNIST, HE ALWAYS
MUST CARRY THE CURSE.  EXPERIENCE TEACHES OTHERWISE.  IT IS COMMON
KNOWLEDGE THAT THOUGH SOME OF THE LEADING SOCIALISTS OF ASIA ONCE WERE
COMMUNISTS, THEY REPUDIATED THE MARXIST CREED WHEN THEY EXPERIENCED ITS
UGLY OPERATIONS, AND TODAY ARE THE MOST EFFECTIVE OPPONENTS THE
COMMUNISTS KNOW.  SO FAR AS THE PRESENT RECORD SHOWS, GALVAN MAY BE
SUCH A MAN.  OR HE MAY BE MERELY ONE WHO TRANSGRESSED AND THEN RETURNED
TO A MORE ORTHODOX POLITICAL FAITH.  THE RECORD IS WHOLLY SILENT ABOUT
GALVAN'S PRESENT POLITICAL ACTIVITIES.  ONLY ONE THING IS CLEAR:
GALVAN IS NOT BEING PUNISHED FOR WHAT HE PRESENTLY IS, NOR FOR AN
UNLAWFUL ACT, NOR FOR ESPIONAGE OR CONSPIRACY OR INTRIGUE AGAINST THIS
COUNTRY.  HE IS BEING PUNISHED FOR WHAT HE ONCE WAS, FOR A POLITICAL
FAITH HE BRIEFLY EXPRESSED OVER SIX YEARS AGO AND THEN REJECTED. 

THIS ACTION IS HOSTILE TO OUR CONSTITUTIONAL STANDARDS, AS I POINTED
OUT IN HARISIADES V. SHAUGHESSY, 342 U.S. 580, 598.  ALIENS WHO LIVE
HERE IN PEACE, WHO DO NOT ABUSE OUR HOSPITALITY, WHO ARE LAW-ABIDING
MEMBERS OF OUR COMMUNITIES, HAVE THE RIGHT TO DUE PROCESS OF LAW.  THEY
TOO ARE "PERSONS" WITHIN THE MEANING OF THE FIFTH AMENDMENT.  THEY CAN
BE MOLESTED BY THE GOVERNMENT IN TIMES OF PEACE ONLY WHEN THEIR
PRESENCE HERE IS HOSTILE TO THE SAFETY OR WELFARE OF THE NATION.  IF
THEY ARE TO BE DEPORTED, IT MUST BE FOR WHAT THEY ARE AND DO, NOT FOR
WHAT THEY ONCE BELIEVED
..END :




ALLEN V. GRAND CENTRAL AIRCRAFT CO. 347 U.S. 535 


NO. 450.  ARGUED MARCH 11-12, 1954 - DECIDED MAY 24, 1954 - 114 F. SUPP.
389, REVERSED. 


A COMPLAINT FILED NOVEMBER 4, 1952, BY THE WAGE STABILIZATION BOARD
WITH THE NATIONAL ENFORCEMENT COMMISSION ALLEGED IN SUBSTANCE THAT,
BETWEEN JANUARY 26, 1951 AND JANUARY 1, 1952, APPELLEE HAD PAID WAGE
INCREASES IN VIOLATION OF AN ORDER FREEZING WAGES AT THE LEVELS OF
JANUARY 25, 1951, UNDER THE DEFENSE PRODUCTION ACT OF 1950, THE
SUBSTANTIVE PROVISIONS OF WHICH EXPIRED APRIL 30, 1953.  ON JANUARY 14,
1953, THE NATIONAL ENFORCEMENT COMMISSION APPOINTED AN ENFORCEMENT
COMMISSIONER TO HEAR THE EVIDENCE AND RECOMMEND TO THE COMMISSION A
DETERMINATION OF THE ISSUES IN THE PROCEEDING.  THE COMMISSIONER SET
THE CASE FOR HEARING ON FEBRUARY 24, 1953, BUT, IN A SUIT FILED BY
APPELLEE, THE DISTRICT COURT ENJOINED FURTHER ACTION.  HELD:  THE
PENDING ADMINISTRATIVE PROCEEDING IS VALID, AND THE JUDGMENT OF THE
DISTRICT COURT ENJOINING THAT PROCEEDING IS REVERSED.  PP. 536-555. 

1.  ONCE THE RIGHT OF THE GOVERNMENT TO HOLD THESE ADMINISTRATIVE
HEARINGS IS ESTABLISHED, APPELLEE IS NOT ENTITLED TO ENJOIN THEM MERELY
BECAUSE THEY MIGHT JEOPARDIZE ITS BANK CREDIT OR OTHERWISE BE
INCONVENIENT OR EMBARRASSING.  PP. 539-540. 

2.  THE DEFENSE PRODUCTION ACT OF 1950 AUTHORIZED THE PRESIDENT TO
APPLY ADMINISTRATIVE ACTION TO THE ENFORCEMENT OF ITS WAGE
STABILIZATION PROVISIONS.  PP. 541-552. 

(A)  THE DEFENSE PRODUCTION ACT OF 1950 IS TO BE READ WITH REFERENCE
TO THE STABILIZATION ACT OF 1942, WHICH WAS A MODEL FOR THE 1950 ACT. 
P. 541. 

(B)  THE HISTORY OF ADMINISTRATIVE ENFORCEMENT UNDER THE 1942 ACT
SUPPORTS THE CONCLUSION THAT THE PRESIDENT HAD AUTHORITY UNDER THE 1950
ACT TO APPLY ADMINISTRATIVE ACTION TO THE ENFORCEMENT OF WAGE
STABILIZATION.  PP. 541-550. 

(C)  SECTION 706 OF THE 1950 ACT DID NOT VEST ENFORCEMENT OF THE ACT
EXCLUSIVELY IN THE DISTRICT COURTS AND LEAVE TO THE PRESIDENT ONLY
AUTHORITY TO PROMULGATE GENERAL REGULATIONS.  PP. 550-552. 

(D)  THE SPECIFIC LANGUAGE OF SEC. 405(B) OF THE 1950 ACT SHOULD
RECEIVE THE SAME CONSTRUCTION THAT WAS PLACED ON SIMILAR LANGUAGE IN
THE 1942 ACT.  THE "GENERAL PROVISIONS" OF SEC. 706 DO NOT RESTRICT THE
SPECIFIC PROVISIONS OF SEC. 405(B) NOW REENACTED.  PP. 550-552. 

(E)  IT WOULD BE PREMATURE FOR THIS COURT TO RULE UPON OTHER
QUESTIONS SUBMITTED BY APPELLEE CONCERNING THE INTERPRETATION AND
CONSTITUTIONALITY OF THE STATUTE UNTIL AFTER THE REQUIRED
ADMINISTRATIVE PROCEDURES HAVE BEEN EXHAUSTED.  P. 553. 

3.  SUCH ADMINISTRATIVE ENFORCEMENT MAY BE APPLIED EVEN AFTER THE
RESTRICTIONS PLACED ON WAGES UNDER TITLE IV OF THE ACT HAVE EXPIRED,
PROVIDED THE ENFORCEMENT IS LIMITED TO VIOLATIONS ANTEDATING SUCH
EXPIRATION.  PP. 553-555. 

(A)  THERE IS NO EXPRESS OR IMPLIED PROVISION IN THE 1950 ACT
CONTRARY TO THE POLICY OF 1 U.S.C. (1952 ED.)  SEC.  109, THE GENERAL
SAVINGS STATUTE.  PP. 553-554. 

(B)  THE PRECISE OBJECT OF THE GENERAL SAVINGS STATUTE IS TO PREVENT
THE EXPIRATION OF A TEMPORARY STATUTE FROM CUTTING OFF APPROPRIATE
MEASURES TO ENFORCE THE EXPIRED STATUTE IN RELATION TO VIOLATIONS OF
IT, OR OF REGULATIONS ISSUED UNDER IT, OCCURRING BEFORE ITS
EXPIRATION.  PP. 554-555. 

(C)  THE AUTHORITY OF THE PRESIDENT TO DELEGATE HIS POWERS WITH
RESPECT TO WAGE STABILIZATION ENFORCEMENT TO THE DIRECTOR OF THE OFFICE
OF DEFENSE MOBILIZATION DERIVES FROM SECS. 703 AND 705, AND, UNDER SEC.
717(A), SUCH AUTHORITY REMAINS EFFECTIVE UNTIL JUNE 30, 1955.  P. 555. 

ALLEN, CHAIRMAN, TWELFTH REGION WAGE STABILIZATION BOARD, ET AL. V.
GRAND CENTRAL AIRCRAFT CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION FOR DECISION IS WHETHER THE DEFENSE PRODUCTION
ACT OF 1950 (FN1) AUTHORIZED THE PRESIDENT TO APPLY ADMINISTRATIVE
ACTION TO THE ENFORCEMENT OF ITS WAGE STABILIZATION PROVISIONS.  FOR
THE REASONS HEREAFTER STATED, WE DECIDE THAT IT DID. 

THERE IS HERE ALSO THE QUESTION WHETHER SUCH ADMINISTRATIVE
ENFORCEMENT MAY BE APPLIED EVEN AFTER THE RESTRICTIONS PLACED ON WAGES
UNDER TITLE IV OF THE ACT (FN2) HAVE EXPIRED, PROVIDED THE ENFORCEMENT
IS LIMITED TO VIOLATIONS ANTEDATING SUCH EXPIRATION.  OUR ANSWER IS IN
THE AFFIRMATIVE. 

APPELLEE FURTHER CLAIMS THAT THE PENDING ADMINISTRATIVE PROCEEDING
SHOULD BE ENJOINED BECAUSE THE MERE CONDUCT OF THAT PROCEEDING MIGHT
CAUSE IT IRREPARABLE DAMAGE.  FOR THE REASONS GIVEN BELOW, WE FIND THAT
ARGUMENT UNTENABLE. 

APPELLEE, GRAND CENTRAL AIRCRAFT COMPANY, IS A CALIFORNIA CORPORATION
WHICH WAS ENGAGED, IN 1951, IN THE PRODUCTION AND REPAIR OF AIRCRAFT
EQUIPMENT IN GLENDALE, CALIFORNIA, AND TUCSON, ARIZONA.  NOVEMBER 4,
1952, THE WAGE STABILIZATION BOARD (FN3) FILED A COMPLAINT WITH THE
NATIONAL ENFORCEMENT COMMISSION (FN4) ALLEGING IN SUBSTANCE THAT
APPELLEE, BETWEEN JANUARY 26, 1951, AND JANUARY 1, 1952, HAD PAID WAGE
INCREASES IN VIOLATION OF AN ORDER FREEZING WAGES AT THE LEVELS OF
JANUARY 25, 1951.  (FN5)  THOSE PAYMENTS CONSISTED OF WAGES TOTALING
ABOUT $5,500,000, INCLUDING ABOUT $750,000 ALLEGED TO HAVE BEEN IN
EXCESS OF THE WAGE CEILINGS.  JANUARY 14, 1953, THE NATIONAL
ENFORCEMENT COMMISSION APPOINTED PHIL C. NEAL TO HEAR THE EVIDENCE AS
AN ENFORCEMENT COMMISSIONER AND TO RECOMMEND TO THE COMMISSION A
DETERMINATION OF THE ISSUES IN THE PROCEEDING.  HE SET THE CASE FOR
HEARING ON FEBRUARY 24 AT LOS ANGELES, CALIFORNIA, BUT FURTHER ACTION
WAS ENJOINED, AS STATED BELOW, SO THAT THE PROCEEDING IS STILL PENDING
AT THAT STAGE.  (FN6) 

FEBRUARY 13, 1953, APPELLEE FILED THE INSTANT SUIT IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN
DIVISION.  APPELLEE ASKED THE COURT TO RESTRAIN THE DEFENDANT MEMBERS
OF THE WAGE STABILIZATION BOARD, THE NATIONAL ENFORCEMENT COMMISSION,
OFFICIALS OF THE TWELFTH REGION WAGE STABILIZATION BOARD, AND THE
ENFORCEMENT COMMISSIONER, FROM PROCEEDING WITH THE ADMINISTRATIVE
HEARING.  ONLY THE REGIONAL OFFICIALS AND THE ENFORCEMENT COMMISSIONER
WERE SERVED.  IN ITS COMPLAINT, APPELLEE DENIED THAT IT HAD VIOLATED
THE DEFENSE PRODUCTION ACT OR ANY REGULATION OR ORDER UNDER IT.
APPELLEE CLAIMED ALSO THAT THE ADMINISTRATIVE PROCEDURE THEN BEING
FOLLOWED WAS UNAUTHORIZED BY THE CONSTITUTION OR ANY STATUTE AND THAT,
EVEN IF ORIGINALLY AUTHORIZED, THAT AUTHORIZATION HAD NOW EXPIRED. 
FINALLY, APPELLEE CLAIMED THE HEARING SHOULD BE ENJOINED BECAUSE THE
MERE CONDUCT OF THE PROCEEDING WOULD INFLICT IRREPARABLE DAMAGE UPON
IT.  A THREE-JUDGE DISTRICT COURT, CONVENED UNDER 28 U.S.C. (1952 ED.) 
SEC.  2282, GRANTED THE RESTRAINING ORDER AND INTERLOCUTORY INJUNCTION
SOUGHT BY APPELLEE AGAINST FURTHER CONDUCT OF THE ADMINISTRATIVE
PROCEEDING.  AFTER HEARING AND TRIAL, THE INJUNCTION WAS MADE
PERMANENT.  114 F. SUPP. 389.  THE ORDER WAS THEN APPEALED TO THIS
COURT UNDER 28 U.S.C. (1952 ED.)  SEC.  1253.  STAY OF THE INJUNCTION
WAS DENIED, TWO JUSTICES DISSENTING AND ONE NOT PARTICIPATING.  345
U.S. 988.  PROBABLE JURISDICTION OF THE APPEAL WAS NOTED.  346 U.S.
920. 

A SOMEWHAT COMPARABLE CASE WAS DECIDED BY A THREE-JUDGE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS IN FAVOR OF AN
EMPLOYER JUNE 14, 1953, IN JONCO AIRCRAFT CORP. V. FRANKLIN, 114 F.
SUPP. 392, WITH CHIEF CIRCUIT JUDGE HUTCHESON DISSENTING.  THAT
JUDGMENT WAS REVERSED BY THIS COURT, PER CURIAM, FOR FAILURE OF
APPELLEE TO EXHAUST ITS ADMINISTRATIVE REMEDY.  346 U.S. 868. 

I. 

WE CONSIDER FIRST THE CLAIM TO INJUNCTIVE RELIEF WHICH APPELLEE MADE
ON THE GROUND THAT THE CONDUCT OF THE PROPOSED ADMINISTRATIVE HEARINGS
WOULD CAUSE IT IRREPARABLE DAMAGE BY WEAKENING ITS BANK CREDIT AND
DEPRIVING IT OF ESSENTIAL WORKING CAPITAL.  ON THAT BASIS,
INTERLOCUTORY RELIEF WAS GRANTED PENDING THE COURT'S DETERMINATION OF
THE ULTIMATE ISSUE OF THE VALIDITY OF THE ADMINISTRATIVE PROCEDURE. 
THAT INJUNCTION HAD BEEN MADE PERMANENT BUT THE GOVERNMENT, ON BEHALF
OF APPELLANTS, CONTENDS THAT APPELLEE IS ACTING PREMATURELY IN SEEKING
SUCH RELIEF BEFORE CARRYING THE PRESCRIBED ADMINISTRATIVE PROCEDURE AT
LEAST TO THE POINT WHERE IT FACES SOME IMMEDIATE COMPULSION AND GREATER
PROBABILITY OF DAMAGE THAN IT HAS ESTABLISHED. 

THE PROPOSED HEARINGS ARE TO BE HELD BEFORE AN ENFORCEMENT
COMMISSIONER WITH AUTHORITY MERELY TO RECOMMEND FINDINGS TO A REGIONAL
ENFORCEMENT COMMISSION SUBJECT TO REVIEW BY THE NATIONAL ENFORCEMENT
COMMISSION.  THOSE FINDINGS MAY SHOW NO VIOLATION OF WAGE CEILINGS.  AT
MOST, THEY WILL BE CONCERNED WITH APPELLEE'S ALLEGED PAYMENT OF WAGES
IN EXCESS OF WAGE CEILINGS TO AN EXTENT OF ABOUT $750,000.  IF SUCH A
VIOLATION OF THE CEILINGS IS FOUND BY THE NATIONAL ENFORCEMENT
COMMISSION, IT MAY THEN, UNDER SEC. 405(B) OF THE DEFENSE PRODUCTION
ACT OF 1950 AND THE PRESIDENT'S DELEGATED AUTHORITY, CERTIFY TO
GOVERNMENTAL AGENCIES, INCLUDING THE BUREAU OF INTERNAL REVENUE FOR
INCOME-TAX PURPOSES, THE DISALLOWANCE OF ALL OR PART OF APPELLEE'S
ILLEGAL WAGE PAYMENTS.  APPELLEE ARGUES THAT SUCH PROCEEDINGS CARRY THE
POSSIBILITY OF THE DISALLOWANCE AS A BUSINES EXPENSE, FOR INCOME-TAX
PURPOSES, OF $750,000, MORE OR LESS, UP TO THE TOTAL WAGES PAID,
EXCEEDING $5,500,000.  APPELLEE CONTENDS ALSO THAT THE MERE THREAT OF
SUCH ACTION WOULD JEOPARDIZE THE BANK CREDIT UPON WHICH IT DEPENDS FOR
ESSENTIAL WORKING CAPITAL.  THERE IS GRAVE DOUBT OF THE RIGHT OF
APPELLEE THUS TO TEST THE VALIDITY OF ADMINISTRATIVE PROCEDURE BEFORE
EXHAUSTING IT OR BRINGING THE ISSUES CLOSER TO A FOCUS THAN IT HAS
DONE.  HOWEVER, IT IS CLEAR THAT ONCE THE RIGHT OF THE GOVERNMENT TO
HOLD ADMINISTRATIVE HEARINGS IS ESTABLISHED, A LITIGANT CANNOT ENJOIN
THEM MERELY BECAUSE THEY MIGHT JEOPARDIZE HIS BANK CREDIT OR OTHERWISE
BE INCONVENIENT OR EMBARRASSING.  AIRCRAFT & DIESEL CORP. V. HIRSCH,
331 U.S. 752, 777-779.  "THE EXPENSE AND ANNOYANCE OF LITIGATION IS
'PART OF THE SOCIAL BURDEN OF LIVING UNDER GOVERNMENT.'"  PETROLEUM
EXPLORATION, INC. V. PUBLIC SERVICE COMMISSION, 304 U.S. 209, 222.  SEE
ALSO, MYERS V. BETHLEHEM CORP., 303 U.S. 41, 47; CHICAGO & SOUTHERN AIR
LINES V. WATERMAN CORP., 333 U.S. 103, 112-113; FRANKLIN V. JONCO
AIRCRAFT CORP., PER CURIAM, 346 U.S. 868. 

IT IS APPELLEE'S PRINCIPAL CLAIM THAT THERE IS NO PROPERLY AUTHORIZED
ADMINISTRATIVE PROCEDURE FOR IT TO EXHAUST AND THAT THE ADMINISTRATIVE
AUTHORITIES WHO SEEK TO DETERMINE ITS CASE HAVE NO LAWFUL RIGHT TO DO
SO.  WE, THEREFORE, GO DIRECTLY TO THE HEART OF THIS CONTROVERSY, WHICH
IS THE QUESTION WHETHER THE ADMINISTRATIVE ENFORCEMENT OF THE 1950 WAGE
STABILIZATION PROGRAM HAS BEEN VALIDLY AUTHORIZED. 

         II. 

THE PROCEDURE IN QUESTION IS PRESCRIBED BY GENERAL PROCEDURAL
REGULATION 1, REVISED, ISSUED BY THE ECONOMIC STABILIZATION
ADMINISTRATOR, AUGUST 21, 1952, 17 FED. REG. 7737.  THE HEARINGS ARE TO
BE CONDUCTED REGIONALLY BY AN ENFORCEMENT COMMISSIONER AND PROVISION IS
MADE FOR APPEAL TO THE NATIONAL ENFORCEMENT COMMISSION.  THAT
COMMISSION (NEC) IS AUTHORIZED TO ISSUE A CERTIFICATE OF DISALLOWANCE
PRESCRIBING THE AMOUNT OF WAGES TO BE DISREGARDED BY THE EXECUTIVE
DEPARTMENTS AND OTHER GOVERNMENTAL AGENCIES IN DETERMINING THE COSTS
AND EXPENSES OF APPELLEE FOR THE PURPOSES OF ANY OTHER LAW OR
REGULATION.  ESA GEN. ORDER NO. 18, JULY 28, 1952, 17 FED. REG. 6925. 
STANDARDS OF ACTION ARE PRESCRIBED BY THE ECONOMIC STABILIZATION
ADMINISTRATOR IN HIS GENERAL ORDER NO. 15, APRIL 3, 1952, 17 FED. REG.
2994.  APPELLEE DOES NOT COMPLAIN OF NONCOMPLIANCE WITH THESE
REGULATIONS.  IT COMPLAINS RATHER THAT THEY ARE NOT AUTHORIZED BY
STATUTE OR THAT, IF PURPORTING TO BE SO AUTHORIZED, THE STATUTE
VIOLATES THE FEDERAL CONSTITUTION. 

THE GOVERNMENT FINDS AUTHORITY FOR THE CREATION OF THIS
ADMINISTRATIVE MACHINERY IN SEC. 405(B) OF THE DEFENSE PRODUCTION ACT
OF 1950, WHEN READ IN CONNECTION WITH THE ENTIRE ACT.  THAT SECTION IS
DERIVED FROM SEC. 5(A) OF THE STABILIZATION ACT OF 1942, 56 STAT. 767,
50 U.S.C. APP. (1946 ED.)  SEC. 965(A).  TO READ THE DEFENSE PRODUCTION
ACT OF 1950 WITHOUT REFERENCE TO THIS MODEL IS TO READ IT OUT OF THE
CONTEXT IN WHICH CONGRESS ENACTED IT. 

THE STABILIZATION ACT OF 1942 WAS A VITAL WARTIME MEASURE, ADOPTED
OCTOBER 2, 1942, DIRECTING THE PRESIDENT "ON OR BEFORE NOVEMBER 1,
1942, TO ISSUE A GENERAL ORDER STABILIZING PRICES, WAGES, AND SALARIES,
AFFECTING THE COST OF LIVING."  (FN7)  IN IT, CONGRESS RELIED UPON
PRESIDENTIAL ACTION GEARED TO THE CRITICAL NECESSITY FOR SPEEDY
COMPLIANCE.  ITS PURPOSE WAS TO CHECK INFLATION.  IT SUBORDINATED
INDIVIDUAL CONVENIENCE TO NATIONWIDE STANDARDS.  ITS SANCTIONS WERE
ENTRUSTED TO ADMINISTRATIVE AGENCIES CAPABLE OF PROMPT ACTION.  SECTION
5(A) PROVIDED THAT: 

"NO EMPLOYER SHALL PAY, AND NO EMPLOYEE SHALL RECEIVE, WAGES OR
SALARIES IN CONTRAVENTION OF THE REGULATIONS PROMULGATED BY THE
PRESIDENT UNDER THIS ACT.  THE PRESIDENT SHALL ALSO PRESCRIBE THE
EXTENT TO WHICH ANY WAGE OR SALARY PAYMENT MADE IN CONTRAVENTION OF
SUCH REGULATIONS SHALL BE DISREGARDED BY THE EXECUTIVE DEPARTMENTS AND
OTHER GOVERNMENTAL AGENCIES IN DETERMINING THE COSTS OR EXPENSES OF ANY
EMPLOYER FOR THE PURPOSES OF ANY OTHER LAW OR REGULATION."  56 STAT.
767, 50 U.S.C. APP. (1946 ED.)  SEC.  965(A). 

THE ACT GRANTED THE PRESIDENT BROAD POWERS TO PROMULGATE
REGULATIONS.  (FN8)  OCTOBER 3, 1942, HE ISSUED EXECUTIVE ORDER NO.
9250, 7 FED. REG. 7871, "TO CONTROL SO FAR AS POSSIBLE THE INFLATIONARY
TENDENCIES AND THE VAST DISLOCATIONS ATTENDANT THEREON WHICH THREATEN
OUR MILITARY EFFORT AND OUR DOMESTIC ECONOMIC STRUCTURE, AND FOR THE
MORE EFFECTIVE PROSECUTION OF THE WAR."  THAT ORDER ESTABLISHED AN
OFFICE OF ECONOMIC STABILIZATION, HEADED BY AN ECONOMIC STABILIZATION
DIRECTOR.  IN TITLE II IT ESTABLISHED A NATIONAL "WAGE AND SALARY
STABILIZATION POLICY."  THIS PLACED WAGE RATES UNDER THE CONTROL OF THE
NATIONAL WAR LABOR BOARD AND FROZE THEM GENERALLY AT THE LEVELS
PREVAILING SEPTEMBER 15, 1942.  IN TITLE III IT AUTHORIZED THE NATIONAL
WAR LABOR BOARD TO ISSUE RULES AND REGULATIONS "FOR THE SPEEDY
DETERMINATION OF THE PROPRIETY OF ANY WAGE INCREASES OR DECREASES IN
ACCORDANCE WITH THIS ORDER."  IT THUS ESTABLISHED ADMINISTRATIVE
PROCESSES FOR MAKING SPECIFIC DETERMINATIONS OF WAGES PAID IN
CONTRAVENTION OF THE ACT.  THE SAME PROCESSES ALSO ENABLED THE
GOVERNMENT, THROUGH OTHER AGENCIES, TO DISREGARD SUCH ILLEGAL PAYMENTS
WHEN COMPUTING TAXES, COMPENSATION UNDER COST-PLUS CONTRACTS AND OTHER
GOVERNMENTAL TRANSACTIONS. 

OCTOBER 27, 1942, JAMES F. BYRNES, THE ECONOMIC STABILIZATION
DIRECTOR, WITH THE PERSONAL APPROVAL OF THE PRESIDENT, ISSUED THE
REGULATIONS WHICH LATER WERE TO SERVE AS THE MODEL FOR THE REGULATIONS
NOW BEFORE US.  (FN9)  THEY DELEGATED TO THE NATIONAL WAR LABOR BOARD
AUTHORITY TO CERTIFY, TO ALL EXECUTIVE DEPARTMENTS AND OTHER AGENCIES
OF THE GOVERNMENT, DISALLOWANCES OF PAYMENTS OF WAGES BASED UPON THE
BOARD'S DETERMINATION OF THEIR VIOLATION OF THE ACT.  (FN10) 

JULY 30, 1943, THE BOARD ADOPTED RULES TO GOVERN ITS PROCEDURES AND
THOSE OF REGIONAL WAR LABOR BOARDS IN DEALING WITH VIOLATION OF THE
WAGE STABILIZATION PROGRAM.  THOSE REGULATIONS LIKEWISE ARE COMPARABLE
TO THE ONES INVOLVED IN THIS CASE.  9 FED. REG. 4681 ET SEQ. 

NEARLY 100,000 PROCEEDINGS WERE THUS HELD AND DISALLOWANCES OF NEARLY
$30,000,000 WERE MADE UP TO FEBRUARY 24, 1947.  (FN11)  THOSE
PROCEEDINGS WERE MATTERS OF GENERAL PUBLIC KNOWLEDGE AND WERE WELL
KNOWN TO CONGRESS.  (FN12)  THEY SUPPORT THE NATURAL PRESUMPTION THAT
CONGRESS, IN ITS SUBSEQUENT ACTIONS, ACCEPTED THEM AS LEGITIMATE
INTERPRETATIONS OF THE STABILIZATION ACT.  SHAPIRO V. UNITED STATES,
335 U.S. 1, 16; HELVERING V. WINMILL, 305 U.S. 79, 82-83; NORWEGIAN
NITROGEN CO. V. UNITED STATES, 288 U.S. 294, 310-315; HECHT V. MALLEY,
265 U.S. 144, 153. 

UNDER THE ACT OF 1942, THE PRESIDENT THUS DETERMINED, THROUGH HIS
ADMINISTRATIVE AGENCIES, MANY SPECIFIC VIOLATIONS OF THE PRESCRIBED
WAGE CEILINGS.  IT WAS THE PRACTICE OF THOSE ADMINISTRATIVE AGENCIES TO
CERTIFY TO OTHER DEPARTMENTS AND AGENCIES SPECIFIC DISALLOWANCES OF THE
WAGES PAID IN VIOLATION OF SUCH CEILINGS.  SEE TROY LAUNDRY CO. V.
WIRTZ, 155 F.2D 53; WOODWORTH CO. V. KAVANAGH, 102 F. SUPP. 9, AFF'D,
202 F.2D 154. 

A COMPARISON OF THE TERMS OF THE ACT OF 1942 WITH THOSE OF THE
DEFENSE PRODUCTION ACT OF SEPTEMBER 8, 1950, AND A COMPARISON OF THE
REGULATIONS AND PRACTICE UNDER THOSE ACTS IS IMPRESSIVE. 


"NO EMPLOYER SHALL PAY, AND NO EMPLOYEE SHALL RECEIVE, ANY WAGE,
SALARY, OR OTHER COMPENSATION IN CONTRAVENTION OF ANY REGULATION OR
ORDER PROMULGATED BY THE PRESIDENT UNDER THIS TITLE.  THE PRESIDENT
SHALL ALSO PRESCRIBE THE EXTENT TO WHICH ANY WAGE, SALARY, OR
COMPENSATION PAYMENT MADE IN CONTRAVENTION OF ANY SUCH REGULATION OR
ORDER SHALL BE DISREGARDED BY THE EXECUTIVE DEPARTMENTS AND OTHER
GOVERNMENTAL AGENCIES IN DETERMINING THE COSTS OR EXPENSES OF ANY
EMPLOYER FOR THE PURPOSES OF ANY OTHER LAW OR REGULATION."  64 STAT.
807, 50 U.S.C. APP. (1946 ED., SUPP. V) SEC. 2105(B).    IT FOLLOWS,
ALMOST WORD FOR WORD, THE LANGUAGE OF SEC. 5(A) OF THE EARLIER ACT,
SUPRA, AT 542.  WHILE IT SUBSTITUTES THE PHRASE "ANY WAGE, SALARY, OR
OTHER COMPENSATION" IN PLACE OF "WAGES OR SALARIES," AND THE PHRASE
"ANY REGULATION OR ORDER" IN PLACE OF "THE REGULATIONS," THE SUBSTANCE
OF THE TWO SECTIONS IS INESCAPABLY THE SAME. 

THE ACT OF 1950 GRANTED THE PRESIDENT BROAD POWERS TO MAKE
REGULATIONS UNDER IT AND TO DELEGATE THE AUTHORITY CONFERRED UPON HIM
BY IT.  (FN13)  HIS ORDERS AND REGULATIONS FOLLOW THE PATTERN OF THE
EARLIER ONES.  SEPTEMBER 9, 1950, HE ISSUED EXECUTIVE ORDER NO. 10161,
15 FED. REG. 6105, 6106, PART IV OF WHICH CREATED A NEW AGENCY KNOWN AS
THE ECONOMIC STABILIZATION AGENCY, HEADED BY AN ECONOMIC STABILIZATION
ADMINISTRATOR.  TO HIM THE PRESIDENT DELEGATED RESPONSIBILITY FOR WAGE
STABILIZATION.  HE ESTABLISHED, WITHIN SUCH AGENCY, A WAGE
STABILIZATION BOARD WITH FUNCTIONS TO BE DETERMINED BY THE
ADMINISTRATOR.  JANUARY 24, 1951, ERIC JOHNSTON, THEN THE
ADMINISTRATOR, DELEGATED TO THAT BOARD HIS FUNCTIONS OF WAGE
STABILIZATION.  ESA GEN. ORDER NO. 3, 16 FED. REG. 739.  JANUARY 26, HE
FROZE WAGES GENERALLY AT THE LEVELS PREVAILING JANUARY 25.  GEN. WAGE
STABILIZATION REGULATION NO. 1, 16 FED. REG. 816. 

ENFORCEMENT UNDER THE ACT OF 1950 THUS CLOSELY RESEMBLED ENFORCEMENT
UNDER THE ACT OF 1942.  JUNE 13, THE WAGE STABILIZATION BOARD
ESTABLISHED A NATIONAL ENFORCEMENT COMMISSION AND AUTHORIZED THE
ESTABLISHMENT OF REGIONAL ENFORCEMENT COMMISSIONS.  SUCH COMMISSIONS
WERE AUTHORIZED TO MAKE DETERMINATIONS OF WAGE VIOLATIONS AND THE
DISALLOWANCES OF SPECIFIC WAGE PAYMENTS UNDER SEC. 405(B).   THOSE
DETERMINATIONS WERE TO BE "CONCLUSIVE FOR THE PURPOSE THEREIN STATED. 
THE EXECUTIVE DEPARTMENTS AND OTHER AGENCIES OF THE GOVERNMENT WHICH
RECEIVE CERTIFICATIONS OF SUCH DETERMINATIONS SHALL DISREGARD AND
DISALLOW THE AMOUNT THUS CERTIFIED."  WSB ENFORCEMENT RESOLUTION NO. 1,
SEC. 1(C), 16 FED. REG. 6028, 6029.  JUNE 28, THIS PROCEDURE WAS
FURTHER DESCRIBED IN A RESOLUTION OF THE WAR STABILIZATION BOARD.  16
FED. REG. 7284. 

APRIL 3, 1952, THE ECONOMIC STABILIZATION ADMINISTRATOR, IN GENERAL
ORDER NO. 15, 17 FED. REG. 2994, PRESCRIBED THE STANDARDS TO BE
FOLLOWED IN MAKING DISALLOWANCES, INCLUDING A RECOGNITION OF
EXTENUATING AND MITIGATING CIRCUMSTANCES. 

EFFECTIVE JULY 30, 1952, SEC. 403(B) OF THE ACT WAS AMENDED TO
ESTABLISH A NEW WAGE STABILIZATION BOARD.  66 STAT. 300-301.  ITS
FUNCTIONS WERE DEFINED BY THE ECONOMIC STABILIZATION ADMINISTRATOR IN
ESA GENERAL ORDER NO. 16, 17 FED. REG. 6925.  ON THE SAME DAY, HE
ISSUED ESA GENERAL ORDER NO. 18, 17 FED. REG. 6925, DEFINING THE
FUNCTIONS OF THE NATIONAL ENFORCEMENT COMMISSION.  THE ORDER COVERED
THE COMMISSION'S AUTHORITY TO DETERMINE AND CERTIFY SPECIFIC
DISALLOWANCES IN ACCORDANCE WITH THE STANDARDS PRESCRIBED IN GENERAL
ORDER NO. 15, SUPRA.  THE LANGUAGE AND SUBSTANCE IS OBVIOUSLY
REMINISCENT OF THAT UNDER THE ACT OF 1942.  (FN14) 

THE LEGISLATIVE HISTORY CONFIRMS THE PARALLEL NATURE OF THE TWO
PROGRAMS.  THE OCCASION FOR THE ACT OF 1950 WAS THE RECURRING NEED TO
CHECK INFLATION.  THE MILITARY DEMANDS IN KOREA AND ELSEWHERE IN 1950
MADE IT NECESSARY TO MAINTAIN A LARGE PRODUCTION OF MILITARY GOODS
WHILE SEEKING ALSO TO MEET THE LONG-DENIED AND INCREASING NEEDS OF THE
NATION'S CIVIL ECONOMY.  THE 1950 ACT EXPRESSLY DECLARED ITS PURPOSE. 
(FN15)  CONGRESS REENACTED, ON A TEMPORARY BASIS, THE EMERGENCY POWERS
OF THE PRESIDENT WHICH HAD BEEN EFFECTIVE DURING WORLD WAR II.  (FN16) 

THE SENATE REPORT ON THE 1950 BILL EXPRESSLY SAID: 

"THIS SUBSECTION (405(B)) ADOPTS THE LANGUAGE OF THE STABILIZATION
ACT OF OCTOBER 2, 1942, RESPECTING THE PENALTIES TO BE APPLIED FOR
VIOLATIONS OF THE WAGE AND SALARY STABILIZATION PROGRAM.  THE COMMITTEE
FINDS THAT THE DISALLOWANCE OF ILLEGAL WAGE PAYMENTS AS A COST OF DOING
BUSINESS, FOR PURPOSES OF COMPUTING TAXES, GOVERNMENT CONTRACT
PAYMENTS, AND FOR PURPOSES OF ESTABLISHING PRICE CEILINGS, WAS AN
EFFECTIVE DETERRENT."  S. REP. NO. 2250, 81ST CONG., 2D SESS. 39. 

THE REGULATIONS, PROCEDURES AND PRACTICES COMPARABLE TO THOSE UNDER
THE ACT OF 1942 WERE FULLY REPORTED TO CONGRESS.  (FN17) 

DESPITE THIS HISTORY OF ADMINISTRATIVE ENFORCEMENT UNDER THE 1942
ACT, APPELLEE CLAIMS THAT, UNDER THE 1950 ACT, THE PRESIDENT HAD NO
AUTHORITY TO APPLY ADMINISTRATIVE ACTION TO THE ENFORCEMENT OF WAGE
STABILIZATION.  APPELLEE ARGUES THAT SEC. 706 OF THE LATER ACT, (FN18)
AS SET FORTH IN THE MARGIN, VESTED ENFORCEMENT OF THE ACT IN THE
DISTRICT COURTS AND THUS LEFT TO THE PRESIDENT ONLY AUTHORITY TO
PROMULGATE GENERAL REGULATIONS.  WE DO NOT AGREE.  SECTION 706 APPEARS
IN TITLE VII CONTAINING THE SO-CALLED "GENERAL PROVISIONS" OF THE ACT. 
APPELLEE READS THE SECTION AS SHARPLY RESTRICTING THE ADMINISTRATIVE
PROCEDURE WHICH WE HAVE JUST DESCRIBED.  SUCH AN INTERPRETATION,
HOWEVER, CANNOT BE GIVEN TO IT IN THE FACE OF SEC. 405(B).  INSTEAD OF
SHARPLY RESTRICTING THE REVIVAL OF ADMINISTRATIVE ENFORCEMENT OF WAGE
CEILINGS UNDER SEC. 405(B), WE READ SEC. 706 AS PRIMARILY APPLICABLE TO
OTHER ACTIVITIES UNDER THE ACT.  IT APPLIES NATURALLY ENOUGH TO PRICE
CONTROLS, CREDIT CONTROLS AND ALLOCATIONS OF MATERIAL.  WE HOLD THAT
THE SPECIFIC LANGUAGE OF SEC. 405(B) SHOULD RECEIVE THE SAME
CONSTRUCTION NOW THAT WAS PLACED ON SIMILAR LANGUAGE IN THE ACT OF
1942.  THE "GENERAL PROVISIONS" OF SEC. 706 DO NOT RESTRICT THE
SPECIFIC PROVISIONS OF SEC. 405(B) NOW REENACTED.  (FN19) 

THE CORRECTNESS OF THE ABOVE INTERPRETATION WAS UNDERSCORED JULY 31,
1951, WHEN CONGRESS INSERTED A NEW SEC. 405(A).  (FN20)  IN LANGUAGE
STRIKINGLY SIMILAR TO SEC. 405(B), THAT NEW SECTION INTRODUCED
ADMINISTRATIVE ENFORCEMENT FOR PRICE CONTROLS.  OBVIOUSLY IT WAS NOT TO
BE SUBSTANTIALLY ELIMINATED BY THE EXISTING PROVISIONS OF SEC. 706.  AS
THE SPECIFIC LANGUAGE OF SEC. 405(A) IS THUS CONTROLLING OVER THE
GENERAL PROVISIONS OF SEC. 706, SO THE SAME SPECIFIC LANGUAGE IN SEC.
405(B) IS CONTROLLING OVER THOSE SAME PROVISIONS.  (FN21) 

WE HAVE NOTED THE OTHER ARGUMENTS SUBMITTED BY APPELLEE CONCERNING
THE INTERPRETATION AND CONSTITUTIONALITY OF THE STATUTE BUT IT WOULD BE
PREMATURE ACTION ON OUR PART TO RULE UPON THESE UNTIL AFTER THE
REQUIRED ADMINISTRATIVE PROCEDURES HAVE BEEN EXHAUSTED.  (FN22)

                              III. 

FINALLY, APPELLEE CONTENDS THAT, BY THE TERMINATION OF THE
SUBSTANTIVE PROVISIONS OF THE DEFENSE PRODUCTION ACT OF 1950, ALL
AUTHORITY HAS NOW EXPIRED FOR DETERMINING OR DISALLOWING PAST, AS WELL
AS FUTURE, PAYMENTS MADE IN VIOLATION OF WAGE CEILINGS. 

AS THE ACT IS A TEMPORARY STATUTE, THE EFFECT OF ITS EXPIRATION IS
GOVERNED BY THE FOLLOWING GENERAL SAVINGS STATUTE: 

"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."  1 U.S.C. (1952
ED.)  SEC.  109. 

WE FIND NO EXPRESS, OR EVEN IMPLIED, PROVISION IN THE ACT CONTRARY TO
THE POLICY OF THE GENERAL SAVINGS STATUTE.  ALL OF THE ALLEGED
VIOLATIONS HERE INVOLVED OCCURRED IN 1951.  THE SUBSTANTIVE PROVISIONS
OF TITLE IV RELATING TO WAGE STABILIZATION AND THE SUPPORTING ORDERS
FIXING THE WAGE CEILINGS HERE AT ISSUE DID NOT EXPIRE UNTIL APRIL 30,
1953.  NEITHER THAT EXPIRATION DATE NOR THE SIX-MONTH EXTENSION OF IT
FOR LIQUIDATION PURPOSES RESTRICTS THE GENERAL PROVISION OF SEC. 109 AS
TO THE SURVIVAL OF ENFORCEMENT PROCEEDINGS.  (FN23) 

THE PRECISE OBJECT OF THE GENERAL SAVINGS STATUTE IS TO PREVENT THE
EXPIRATION OF A TEMPORARY STATUTE FROM CUTTING OFF APPROPRIATE MEASURES
TO ENFORCE THE EXPIRED STATUTE IN RELATION TO VIOLATIONS OF IT, OR OF
REGULATIONS ISSUED UNDER IT, OCCURRING BEFORE ITS EXPIRATION.  UNITED
STATES V. ALLIED OIL CORP., 341 U.S. 1, 5; FLEMING V. MOHAWK CO., 331
U.S. 111. 

A SIMILAR SITUATION FOLLOWED THE EXPIRATION, IN 1946, OF THE
SUBSTANTIVE PROVISIONS OF THE STABILIZATION ACT OF 1942, (FN24) AND WE
HAVE SEEN THAT THE ENFORCEMENT PROCEEDINGS CONTINUED UNDER IT UNTIL
1949.  SEE NOTE 11, SUPRA.  ON THAT OCCASION THE AUTHORITY TO MAKE
DISALLOWANCES WAS TRANSFERRED TO THE DEPARTMENT OF THE TREASURY.  EXEC.
ORDER NO. 9809, PARA. 10(B), 11 FED. REG. 14281, 14283.  IN THE PRESENT
INSTANCE, WAGE STABILIZATION ENFORCEMENT HAS BEEN TRANSFERRED TO THE
DIRECTOR OF THE OFFICE OF DEFENSE MOBILIZATION.  EXEC. ORDER NO. 10494,
OCTOBER 14, 1953, 18 FED. REG. 6585.  THE AUTHORITY OF THE PRESIDENT TO
MAKE SUCH A DELEGATION OF HIS POWERS APPEARS IN SECS. 703 AND 705, AND
SUCH AUTHORITY REMAINS EFFECTIVE UNTIL JUNE 30, 1955, SEC. 717(A), NOTE
23, SUPRA. 

THE VALIDITY OF THE PENDING ADMINISTRATIVE PROCEEDING BEING THUS
UPHELD, THE JUDGMENT OF THE DISTRICT COURT ENJOINING THAT PROCEEDING IS
REVERSED. 

FN1  64 STAT. 798, AS AMENDED, 65 STAT. 131, 66 STAT. 296, 67 STAT.
129, 50 U.S.C. APP.  (1946 ED., SUPP. V) SEC. 2061 ET SEQ. 

FN2  "TITLE IV-PRICE AND WAGE STABILIZATION" CONTAINING SECS. 401
412, 64 STAT. 803-812, 66 STAT. 304, AND SEE 50 U.S.C. APP. (1946 ED.,
SUPP. V) SECS. 2101-2110. 

FN3  CREATED, WITHIN THE ECONOMIC STABILIZATION AGENCY, BY SEC.
403(B) OF THE DEFENSE PRODUCTION ACT, JUNE 30, 1952, 66 STAT. 300-301. 
SEE ALSO, EXEC. ORDER NO. 10377, 17 FED. REG. 6891; ESA GEN. ORDER NO.
16, 17 FED. REG. 6925. 

FN4  ESA GEN. ORDER NO. 18, EFFECTIVE JULY 30, 1952, 17 FED. REG.
6925, AS AMENDED AT 9977, ESTABLISHED NEC WITHIN THE ESA AND DEFINED
THE FUNCTIONS OF NEC. 

FN5  GEN. WAGE STABILIZATION REGULATION 1, ISSUED BY ECONOMIC
STABILIZATION ADMINISTRATOR, JANUARY 26, 1951, 16 FED. REG. 816. 

FN6  THE GOVERNMENT STATES THAT NEAL, WHO IS ONE OF THE APPELLANTS,
IS NOW ON THE STAFF OF THE OFFICE OF DEFENSE MOBILIZATION AND IS
AUTHORIZED AND READY TO CONDUCT THE HEARING IF THE INJUNCTION IS
LIFTED. 

FN7  56 STAT. 765, 50 U.S.C. APP. (1946 ED.)  SEC.  961 ET SEQ. THE
STABILIZATION ACT ITSELF WAS AN AMENDMENT TO THE EMERGENCY PRICE
CONTROL ACT OF 1942, APPROVED JANUARY 30, 1942, 56 STAT. 23, 50 U.S.C.
APP. (1946 ED.)  SEC.  901 ET SEQ. FOR ITS TITLE, SEE 58 STAT. 643.  IT
WAS TEMPORARY LEGISLATION.  ITS TERMINATION DATE WAS JUNE 30, 1944, OR
"SUCH EARLIER DATE AS THE CONGRESS BY CONCURRENT RESOLUTION, OR THE
PRESIDENT BY PROCLAMATION, MAY PRESCRIBE."  56 STAT. 767.  THAT DATE
WAS POSTPONED, ONE YEAR AT A TIME, TO JUNE 30, 1947.  58 STAT. 643, 59
STAT. 306, 60 STAT. 664, 50 U.S.C. APP. (1946 ED.)  SEC.  966. 

FN8  "SEC.  2.  THE PRESIDENT MAY, FROM TIME TO TIME, PROMULGATE SUCH
REGULATIONS AS MAY BE NECESSARY AND PROPER TO CARRY OUT ANY OF THE
PROVISIONS OF THIS ACT; AND MAY EXERCISE ANY POWER OR AUTHORITY
CONFERRED UPON HIM BY THIS ACT THROUGH SUCH DEPARTMENT, AGENCY, OR
OFFICER AS HE SHALL DIRECT  ...  ."  56 STAT. 765, 50 U.S.C. APP. (1946
ED.)  SEC.  962. 

FN9  OFFICE OF ECONOMIC STABILIZATION - PT. 4001 - WAGES AND
SALARIES, 7 FED. REG. 8748 ET SEQ. SUBSEQUENT AMENDMENTS DID NOT CHANGE
THE PROVISIONS FOR MAKING TAX DISALLOWANCES BASED UPON SPECIFIC
ADMINISTRATIVE DETERMINATIONS. 

FN10  "SEC.  4001.2 AUTHORITY OF NATIONAL WAR LABOR BOARD.  THE BOARD
SHALL  ...  HAVE AUTHORITY TO DETERMINE WHETHER ANY: 

"(A)  WAGE PAYMENTS  ...  . 

     *         *         *         *         * "ARE MADE IN
CONTRAVENTION OF THE ACT, OR ANY RULINGS, ORDERS OR REGULATIONS
PROMULGATED THEREUNDER.  ANY SUCH DETERMINATION BY THE BOARD, MADE
UNDER RULINGS AND ORDERS ISSUED BY IT, THAT A PAYMENT IS IN
CONTRAVENTION OF THE ACT, OR ANY RULINGS, ORDERS, OR REGULATIONS
PROMULGATED THEREUNDER, SHALL BE CONCLUSIVE UPON ALL EXECUTIVE
DEPARTMENTS AND AGENCIES OF THE GOVERNMENT IN DETERMINING THE COSTS OR
EXPENSES OF ANY EMPLOYER FOR THE PURPOSE OF ANY LAW OR REGULATION,
EITHER HERETOFORE OR HEREAFTER ENACTED OR PROMULGATED, INCLUDING THE
EMERGENCY PRICE CONTROL ACT OF 1942 OR ANY MAXIMUM PRICE REGULATION
THEREOF, OR FOR THE PURPOSE OF CALCULATING DEDUCTIONS UNDER THE REVENUE
LAWS OF THE UNITED STATES, OR FOR THE PURPOSE OF DETERMINING COSTS OR
EXPENSES UNDER ANY CONTRACT MADE BY OR ON BEHALF OF THE UNITED STATES. 
ANY DETERMINATION OF THE BOARD MADE PURSUANT TO THE AUTHORITY CONFERRED
ON IT SHALL BE FINAL AND SHALL NOT BE SUBJECT TO REVIEW BY THE TAX
COURT OF THE UNITED STATES OR BY ANY COURT IN ANY CIVIL PROCEEDINGS." 
7 FED. REG., AT 8749. 

FN11  FROM OCTOBER 3, 1942, TO DECEMBER 29, 1945, 68,233 CASES,
RESULTING IN DISALLOWANCES OF $19,018,820.19, WERE HANDLED BY THE
NATIONAL WAR LABOR BOARD.  1 TERMINATION REPORT, NATIONAL WAR LABOR
BOARD, 428-441.  FROM JANUARY 1, 1946, TO JANUARY 30, 1947, 30,071
CASES, RESULTING IN DISALLOWANCES OF $11,822,609, WERE HANDLED BY THE
NATIONAL WAGE STABILIZATION BOARD.  NATIONAL WAGE STABILIZATION BOARD
(1946-1947) 223-235.  WHILE MANY CASES RESULTED IN FINDINGS OF NO
VIOLATION OR WERE CLOSED WITHOUT PENALTY OR DISALLOWANCE, MANY OTHERS
WERE TERMINATED WITH DISALLOWANCES, EITHER BY CONSENT OR AFTER
HEARINGS.  THERE WERE 282 APPEAL CASES PROCESSED BY THE NATIONAL
BOARDS, AND ALTHOUGH THE CONTROLS WERE TERMINATED IN NOVEMBER 1946 BY
EXECUTIVE ORDER NO. 9801, 11 FED. REG. 13435, THE ENFORCEMENT
ACTIVITIES, BASED ON EARLIER VIOLATIONS, WERE CARRIED ON BY THE
DEPARTMENT OF THE TREASURY UNTIL 1949.  SEE ANN. REPS.  OF THE
COMMISSIONER OF INTERNAL REVENUE 62-63 (1947); 33-34 (1948); 26-27
(1949).    FN12  NOT ONLY WAS THE LIFE OF THE ACT EXTENDED THREE TIMES
(SEE NOTE 7, SUPRA) BUT ITS ADMINISTRATION WAS REVIEWED DURING ANNUAL
APPROPRIATION HEARINGS.  SEE HEARINGS BEFORE THE HOUSE SUBCOMMITTEE ON
APPROPRIATIONS ON NATIONAL WAR AGENCIES APPROPRIATION BILLS FOR 1944,
PT. 2, 78TH CONG., 1ST SESS. 667-668; FOR 1945, PT. 1, 78TH CONG., 2D
SESS. 240-241, 303-304; FOR 1946, 79TH CONG., 1ST SESS. 12-13. 

FN13  "SEC.  403.  (A)  AT SUCH TIME AS THE PRESIDENT DETERMINES THAT
IT IS NECESSARY TO IMPOSE PRICE AND WAGE CONTROLS GENERALLY OVER A
SUBSTANTIAL PORTION OF THE NATIONAL ECONOMY, HE SHALL ADMINISTER SUCH
CONTROLS  ...  THROUGH A NEW INDEPENDENT AGENCY CREATED FOR SUCH
PURPOSE:  ...  . SUCH AGENCY MAY UTILIZE THE SERVICES, INFORMATION, AND
FACILITIES OF OTHER AGENCIES AND DEPARTMENTS OF THE GOVERNMENT, BUT
SUCH AGENCY SHALL NOT DELEGATE ENFORCEMENT OF ANY OF THE CONTROLS TO BE
ADMINISTERED BY IT UNDER THIS SECTION TO ANY OTHER AGENCY OR
DEPARTMENT."  64 STAT. 807, AS AMENDED, 65 STAT. 137, 66 STAT. 300. 
SEE 50 U.S.C. APP.  (1946 ED., SUPP. V) SEC. 2103.  (DELEGATIONS AS TO
THE ENFORCEMENT OF CONTROLS, ACCORDINGLY, WERE MADE ONLY TO OFFICIALS
WITHIN THE NEW INDEPENDENT AGENCY KNOWN AS THE ECONOMIC STABILIZATION
AGENCY.) 

"SEC. 703.  (A)  EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, THE
PRESIDENT MAY DELEGATE ANY POWER OR AUTHORITY CONFERRED UPON HIM BY
THIS ACT TO ANY OFFICER OR AGENCY OF THE GOVERNMENT, INCLUDING ANY NEW
AGENCY OR AGENCIES (AND THE PRESIDENT IS HEREBY AUTHORIZED TO CREATE
SUCH NEW AGENCIES, OTHER THAN CORPORATE AGENCIES, AS HE DEEMS
NECESSARY), AND HE MAY AUTHORIZE SUCH REDELEGATIONS BY THAT OFFICER OR
AGENCY AS THE PRESIDENT MAY DEEM APPROPRIATE  ...  ."  64 STAT. 816, 50
U.S.C. APP. (1946 ED., SUPP. V) SEC. 2153(A). 

"SEC. 704.  THE PRESIDENT MAY MAKE SUCH RULES, REGULATIONS, AND
ORDERS AS HE DEEMS NECESSARY OR APPROPRIATE TO CARRY OUT THE PROVISIONS
OF THIS ACT.  ANY REGULATION OR ORDER UNDER THIS ACT MAY BE ESTABLISHED
IN SUCH FORM AND MANNER, MAY CONTAIN SUCH CLASSIFICATIONS AND
DIFFERENTIATIONS, AND MAY PROVIDE FOR SUCH ADJUSTMENTS AND REASONABLE
EXCEPTIONS AS IN THE JUDGMENT OF THE PRESIDENT ARE NECESSARY OR PROPER
TO EFFECTUATE THE PURPOSES OF THIS ACT, OR TO PREVENT CIRCUMVENTION OR
EVASION, OR TO FACILITATE ENFORCEMENT OF THIS ACT, OR ANY RULE,
REGULATION, OR ORDER ISSUED UNDER THIS ACT."  64 STAT. 816, SEE 50
U.S.C. APP.  (1946 ED., SUPP. V) SEC. 2154. 

FN14  "SEC.  4.  FUNCTIONS OF THE NATIONAL ENFORCEMENT COMMISSION. 
(A)  THE FUNCTIONS OF THE NATIONAL ENFORCEMENT COMMISSION (HEREINAFTER
REFFERED TO AS THE COMMISSION) SHALL BE, WITH RESPECT TO PERSONS WITHIN
THE JURISDICTION OF THE WAGE STABILIZATION BOARD, THE SALARY
STABILIZATION BOARD AND THE OFFICE OF SALARY STABILIZATION, AND THE
RAILROAD AND AIRLINE WAGE BOARD, TO DETERMINE WHETHER ANY WAGE, SALARY,
OR OTHER COMPENSATION HAS BEEN PAID OR ACCRUED, AT ANY TIME, IN
VIOLATION OR CONTRAVENTION OF ANY PROVISION OF THE DEFENSE PRODUCTION
ACT OF 1950, AS AMENDED, OR ANY REGULATION OR ORDER OR DIRECTIVE
HERETOFORE OR HEREAFTER PROMULGATED UNDER THE ACT.  SUCH DETERMINATION
SHALL BE MADE BY THE COMMISSION AFTER ANY OF THE FOREGOING NAMED
CONSTITUENT ORGANIZATIONS OF THIS AGENCY HAVE INSTITUTED AN ENFORCEMENT
PROCEEDING BEFORE IT OR AFTER ANY SUCH ORGANIZATION HAS SUBMITTED A
SETTLEMENT PROPOSAL TO THE COMMISSION FOR ITS APPROVAL.  SUCH
DETERMINATION SHALL BE FINAL WITHIN THE ECONOMIC STABILIZATION AGENCY. 

"(B)  THE COMMISSION IS FURTHER AUTHORIZED TO CERTIFY AND TRANSMIT
SUCH DETERMINATIONS IN ACCORDANCE WITH THE POLICY AND PROCEDURE SET
FORTH IN ECONOMIC STABILIZATION AGENCY GENERAL ORDER NO. 15, AND OTHER
ORDERS, DIRECTIVES, GENERAL POLICIES OR GENERAL REGULATIONS OF THE
ECONOMIC STABILIZATION ADMINISTRATOR. 

"SEC. 5.  REDELEGATION OF AUTHORITY.  (A)  THE AUTHORITY DELEGATED TO
THE ECONOMIC STABILIZATION ADMINISTRATOR WITH RESPECT TO THE IMPOSITION
OF DISALLOWANCE SANCTIONS UNDER SECTION 405(B) OF THE DEFENSE
PRODUCTION ACT, AS AMENDED, FOR THE VIOLATION OR CONTRAVENTION OF ANY
PROVISIONS OF, OR ANY ORDERS OR ANY REGULATIONS ISSUED UNDER SAID ACT,
AS AMENDED, RELATING TO THE PAYMENT OF WAGES, SALARIES, OR OTHER
COMPENSATION, IS HEREBY REDELEGATED TO THE COMMISSION, IN ACCORDANCE
WITH THE FUNCTIONS DESCRIBED ABOVE."  17 FED. REG., AT 6926. 

FN15  "SEC.  2.  ...  THE UNITED STATES IS DETERMINED TO DEVELOP AND
MAINTAIN WHATEVER MILITARY AND ECONOMIC STRENGTH IS FOUND TO BE
NECESSARY TO CARRY OUT THIS PURPOSE.  UNDER PRESENT CIRCUMSTANCES, THIS
TASK REQUIRES DIVERSION OF CERTAIN MATERIALS AND FACILITIES FROM
CIVILIAN USE TO MILITARY AND RELATED PURPOSES.  IT REQUIRES EXPANSION
OF PRODUCTIVE FACILITIES BEYOND THE LEVELS NEEDED TO MEET THE CIVILIAN
DEMAND.  IN ORDER THAT THIS DIVERSION AND EXPANSION MAY PROCEED AT
ONCE, AND THAT THE NATIONAL ECONOMY MAY BE MAINTAINED WITH THE MAXIMUM
EFFECTIVENESS AND THE LEAST HARDSHIP, NORMAL CIVILIAN PRODUCTION AND
PURCHASES MUST BE CURTAILED AND REDIRECTED. 

"IT IS THE OBJECTIVE OF THIS ACT TO PROVIDE THE PRESIDENT WITH
AUTHORITY TO ACCOMPLISH THESE ADJUSTMENTS IN THE OPERATION OF THE
ECONOMY.  IT IS THE INTENTION OF THE CONGRESS THAT THE PRESIDENT SHALL
USE THE POWERS CONFERRED BY THIS ACT TO PROMOTE THE NATIONAL DEFENSE,
BY MEETING, PROMPTLY AND EFFECTIVELY, THE REQUIREMENTS OF MILITARY
PROGRAMS IN SUPPORT OF OUR NATIONAL SECURITY AND FOREIGN POLICY
OBJECTIVES, AND BY PREVENTING UNDUE STRAINS AND DISLOCATIONS UPON
WAGES, PRICES, AND PRODUCTION OR DISTRIBUTION OF MATERIALS FOR CIVILIAN
USE, WITHIN THE FRAMEWORK, AS FAR AS PRACTICABLE, OF THE AMERICAN
SYSTEM OF COMPETITIVE ENTERPRISE."  64 STAT. 798, 799, 50 U.S.C. APP.
(1946 ED., SUPP. V) SEC. 2062. 

SEE S. REP. NO. 2250, 81ST CONG., 2D SESS. 4-5, 20-40. 

FN16  THE 1950 ACT, GENERALLY, WAS TO TERMINATE JUNE 30, 1952.  TITLE
IV, AS TO PRICE AND WAGE STABILIZATION, WAS TO EXPIRE JUNE 30, 1951. 
64 STAT. 822.  THE LATTER DATE WAS EXTENDED TO APRIL 30, 1953.  66
STAT. 306, 67 STAT. 131.  THE SURVIVAL OF ENFORCEMENT PROCEDURE IN
RELATION TO PRIOR VIOLATIONS IS DISCUSSED IN SECTION III OF THIS
OPINION. 

FN17  FIRST ANN. REP. OF THE JOINT COMMITTEE ON DEFENSE PRODUCTION,
S. REP. NO. 1040, 82D CONG., 1ST SESS. 98-103 (1951); SECOND ANN. REP.
OF THE SAME COMMITTEE, S. REP. NO. 3, 83D CONG., 1ST SESS. 108-119
(1952). 

FN18  "SEC.  706.  (A)  WHENEVER IN THE JUDGMENT OF THE PRESIDENT ANY
PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY ACTS OR PRACTICES WHICH
CONSTITUTE OR WILL CONSTITUTE A VIOLATION OF ANY PROVISION OF THIS ACT,
HE MAY MAKE APPLICATION TO THE APPROPRIATE COURT FOR AN ORDER ENJOINING
SUCH ACTS OR PRACTICES, OR FOR AN ORDER ENFORCING COMPLIANCE WITH SUCH
PROVISION, AND UPON A SHOWING BY THE PRESIDENT THAT SUCH PERSON HAS
ENGAGED OR IS ABOUT TO ENGAGE IN ANY SUCH ACTS OR PRACTICES A PERMANENT
OR TEMPORARY INJUNCTION, RESTRAINING ORDER, OR OTHER ORDER, WITH OR
WITHOUT SUCH INJUNCTION OR RESTRAINING ORDER, SHALL BE GRANTED WITHOUT
BOND. 

"(B)  THE DISTRICT COURTS OF THE UNITED STATES AND THE UNITED STATES
COURTS OF ANY TERRITORY OR OTHER PLACE SUBJECT TO THE JURISDICTION OF
THE UNITED STATES SHALL HAVE JURISDICTION OF VIOLATIONS OF THIS ACT OR
ANY RULE, REGULATION, ORDER, OR SUBPENA THEREUNDER, AND OF ALL CIVIL
ACTIONS UNDER THIS ACT TO ENFORCE ANY LIABILITY OR DUTY CREATED BY, OR
TO ENJOIN ANY VIOLATION OF, THIS ACT OR ANY RULE, REGULATION, ORDER, OR
SUBPENA THEREUNDER.  ANY CRIMINAL PROCEEDING ON ACCOUNT OF ANY SUCH
VIOLATION MAY BE BROUGHT IN ANY DISTRICT IN WHICH ANY ACT, FAILURE TO
ACT, OR TRANSACTION CONSTITUTING THE VIOLATION OCCURRED.  ANY SUCH
CIVIL ACTION MAY BE BROUGHT IN ANY SUCH DISTRICT OR IN THE DISTRICT IN
WHICH THE DEFENDANT RESIDES OR TRANSACTS BUSINESS.  PROCESS IN SUCH
CASES, CRIMINAL OR CIVIL, MAY BE SERVED IN ANY DISTRICT WHEREIN THE
DEFENDANT RESIDES OR TRANSACTS BUSINESS OR WHEREVER THE DEFENDANT MAY
BE FOUND; THE SUBPENA FOR WITNESSES WHO ARE REQUIRED TO ATTEND A COURT
IN ANY DISTRICT IN SUCH CASE MAY RUN INTO ANY OTHER DISTRICT.  THE
TERMINATION OF THE AUTHORITY GRANTED IN ANY TITLE OR SECTION OF THIS
ACT, OR OF ANY RULE, REGULATION, OR ORDER ISSUED THEREUNDER, SHALL NOT
OPERATE TO DEFEAT ANY SUIT, ACTION, OR PROSECUTION, WHETHER THERETOFORE
OR THEREAFTER COMMENCED, WITH RESPECT TO ANY RIGHT, LIABILITY, OR
OFFENSE INCURRED OR COMMITTED PRIOR TO THE TERMINATION DATE OF SUCH
TITLE OR OF SUCH RULE, REGULATION, OR ORDER.  NO COSTS SHALL BE
ASSESSED AGAINST THE UNITED STATES IN ANY PROCEEDING UNDER THIS ACT. 
ALL LITIGATION ARISING UNDER THIS ACT OR THE REGULATIONS PROMULGATED
THEREUNDER SHALL BE UNDER THE SUPERVISION AND CONTROL OF THE ATTORNEY
GENERAL."  64 STAT. 817-818, AS AMENDED, 65 STAT. 139, 50 U.S.C. APP.
(1946 ED., SUPP. V) SEC. 2156. 

FN19  THAT THIS IS A LOGICAL INTERPRETATION OF SEC. 706 IS EMPHASIZED
BY THE FACT THAT THE BILLS WHICH BECAME THE ACT OF 1950 CONTAINED, WHEN
INTRODUCED, PROVISIONS FOR CREDIT AND COMMODITY CONTROLS BUT NO
PROVISIONS FOR WAGE STABILIZATION.  THUS THE SECTION THAT WAS TO BECOME
SEC. 706 ORIGINALLY HAD NO REFERENCE TO WAGE STABILIZATION.  TITLE IV,
INCLUDING SEC. 405(B) AS TO WAGE STABILIZATION, WAS INSERTED IN
COMMITTEE.  THE SEPARATE ORIGINS OF SECS. 405(B) AND 706 POINT TO THE
SEPARATE EFFECT WHICH SHOULD BE GIVEN TO THEM.  SEE S. REP. NO. 2250,
81ST CONG., 2D SESS. 5. 

FN20  "  ...  THE PRESIDENT SHALL ALSO PRESCRIBE THE EXTENT TO WHICH
ANY PAYMENT MADE, EITHER IN MONEY OR PROPERTY, BY ANY PERSON IN
VIOLATION OF ANY SUCH REGULATION, ORDER, OR REQUIREMENT (AS TO PRICE
CONTROL) SHALL BE DISREGARDED BY THE EXECUTIVE DEPARTMENTS AND OTHER
GOVERNMENTAL AGENCIES IN DETERMINING THE COSTS OR EXPENSES OF ANY SUCH
PERSON FOR THE PURPOSES OF ANY OTHER LAW OR REGULATION, INCLUDING BASES
IN DETERMINING GAIN FOR TAX PURPOSES."  65 STAT. 136, 50 U.S.C. APP.
(1946 ED., SUPP. V) SEC. 2105(A). 

FN21  THIS INTERPRETATION OF SEC. 405(A) AND (B) IS CONSISTENT,
LIKEWISE, WITH THE INTERPRETATION GIVEN TO SEC. 5 OF THE STABILIZATION
ACT OF 1942.  THE STABILIZATION ACT OF 1942 WAS SUPERIMPOSED ON THE
EMERGENCY PRICE CONTROL ACT OF 1942, 56 STAT. 23, WHICH ALREADY
CONTAINED GENERAL PROVISIONS FOR JUDICIAL ENFORCEMENT.  THE SOLUTION
REACHED WAS TO APPLY THOSE GENERAL PROVISIONS (SEC. 205(A)(B) AND (C))
WITHOUT RESTRICTING THE ADMINISTRATIVE PROCEDURE PRESCRIBED IN SEC. 5
FOR WAGE CONTROL.  56 STAT. 33, 50 U.S.C. APP. (1946 ED.)  SEC. 
925(A)(B)(C). 

FINALLY, THE TEXT OF SEC. 403 USES THE WORD "ENFORCEMENT" IN
REFERRING TO THE POWERS OF THE ADMINISTRATIVE AGENCIES IN CONNECTION
WITH WAGE CONTROLS.  IN REFERRING TO THE NEW AGENCY TO BE CREATED, IT
PROVIDES THAT "SUCH AGENCY SHALL NOT DELEGATE ENFORCEMENT OF ANY OF THE
CONTROLS TO BE ADMINISTERED BY IT UNDER THIS SECTION TO ANY OTHER
AGENCY OR DEPARTMENT."  64 STAT. 807, 50 U.S.C. APP. (1946 ED., SUPP.
V) SEC. 2103. 

SEE ALSO, THE CONFERENCE REPORT ON THE DEFENSE PRODUCTION ACT
AMENDMENTS OF 1952 WHICH SAID:  "THE CONFERENCE SUBSTITUTE IS NOT
INTENDED TO PRECLUDE THE WAGE STABILIZATION BOARD FROM, AS AT PRESENT,
ENFORCING WAGE STABILIZATION REGULATIONS AND POLICIES."  H.R. REP. NO.
2352, 82D CONG., 2D SESS. 24. 

FN22  THE CONSTITUTIONAL OBJECTIONS SUGGESTED ARE THAT THE ACT AND
PROCEEDINGS WHICH HAVE BEEN TAKEN AND ARE PROPOSED UNDER IT VIOLATE (1)
THE FIFTH AMENDMENT BY DEPRIVING APPELLEE OF PROPERTY WITHOUT DUE
PROCESS OF LAW; (2) THE SIXTH OR SEVENTH AMENDMENT BY DEPRIVING
APPELLEE OF THE RIGHT TO A JURY TRIAL; (3) THE EIGHTH AMENDMENT IN
AUTHORIZING EXCESSIVE FINES; (4) ARTICLE I, SEC. 9, BY AUTHORIZING AN
UNAPPORTIONED DIRECT TAX; (5) ARTICLE I, SEC. 1, BY IMPROPER DELEGATION
OF LEGISLATIVE POWER TO THE EXECUTIVE; AND (6) THE TENTH AMENDMENT BY
ATTEMPTING TO LEGISLATE ON MATTERS RESERVED TO THE STATES. 

FN23  "SEC.  717.  (A)  TITLE I PRIORITIES AND ALLOCATIONS  ...
TITLE III EXPANSION OF PRODUCTIVE CAPACITY AND SUPPLY, AND TITLE VII
GENERAL PROVISIONS  ...  OF THIS ACT, AND ALL AUTHORITY CONFERRED
THEREUNDER, SHALL TERMINATE AT THE CLOSE OF JUNE 30, 1955  ...  .
TITLES IV PRICE AND WAGE STABILIZATION AND V SETTLEMENT OF LABOR
DISPUTES OF THIS ACT, AND ALL AUTHORITY CONFERRED THEREUNDER, SHALL
TERMINATE AT THE CLOSE OF APRIL 30, 1953. 

"(B)  NOTWITHSTANDING THE FOREGOING: 

     *         *         *         *         * 

"(3) ANY AGENCY CREATED UNDER THIS ACT MAY BE CONTINUED IN EXISTENCE
FOR PURPOSES OF LIQUIDATION FOR NOT TO EXCEED SIX MONTHS AFTER THE
TERMINATION OF THE PROVISION AUTHORIZING THE CREATION OF SUCH AGENCY." 
64 STAT. 822, AS AMENDED, 65 STAT. 144, 66 STAT. 306, 67 STAT. 131. 

EXECUTIVE ORDER NO. 10434, FEBRUARY 6, 1953, 18 FED. REG. 809,
SUSPENDED THE WAGE STABILIZATION PROGRAM BUT PROVIDED THAT "THIS ORDER
SHALL NOT OPERATE TO DEFEAT ANY SUIT, ACTION, PROSECUTION, OR
ADMINISTRATIVE ENFORCEMENT PROCEEDING, WHETHER HERETOFORE OR HEREAFTER
COMMENCED, WITH RESPECT TO ANY RIGHT, LIABILITY, OR OFFENSE POSSESSED,
INCURRED, OR COMMITTED, PRIOR TO THIS DATE." 

SEE ALSO, HEARINGS BEFORE THE HOUSE SUBCOMMITTEES ON APPROPRIATIONS,
PT. 1, 83D CONG., 1ST SESS. 439-441, ON THE SUPPLEMENTAL APPROPRIATION
BILL, 1954, INTRODUCED IN THE HOUSE AS H.R. 6200, AND THOSE ON THE SAME
BILL BEFORE THE SENATE COMMITTEE ON APPROPRIATIONS, 83D CONG., 1ST
SESS. 423-431. 

FN24  "  ...  THOUGH MOST OF THE CONTROLS HAVE BEEN LIFTED, THE ACT
IS STILL IN EFFECT.  LIABILITIES INCURRED PRIOR TO THE LIFTING OF
CONTROLS ARE NOT THEREBY WASHED OUT.  UNITED STATES V. HARK, 320 U.S.
531, 536; UTAH JUNK CO. V. PORTER, 328 U.S. 39, 44; COLLINS V. PORTER,
328 U.S. 46, 49.  AND CONGRESS HAS EXPLICITLY PROVIDED THAT ACCRUED
RIGHTS AND LIABILITIES UNDER THE EMERGENCY PRICE CONTROL ACT ARE
PRESERVED WHETHER OR NOT SUIT IS STARTED PRIOR TO THE TERMINATION DATE
OF THE ACT.  IF INVESTIGATION WERE FORECLOSED AT THIS STAGE, SUCH
RIGHTS AS MAY EXIST WOULD BE DEFEATED, CONTRARY TO THE POLICY OF THE
ACT."  FLEMING V. MOHAWK CO., 331 U.S. 111, 119. 
..END :











BROWN V. BOARD OF EDUCATION OF TOPEKA 347 U.S. 483 


NO. 1.  ARGUED DECEMBER 9, 1952 - REARGUED DECEMBER 8, 1953 - DECIDED
MAY 17, 1954. 


SEGREGATION OF WHITE AND NEGRO CHILDREN IN THE PUBLIC SCHOOLS OF A
STATE SOLELY ON THE BASIS OF RACE, PURSUANT TO STATE LAWS PERMITTING OR
REQUIRING SUCH SEGREGATION, DENIES TO NEGRO CHILDREN THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT - EVEN
THOUGH THE PHYSICAL FACILITIES AND OTHER "TANGIBLE" FACTORS OF WHITE
AND NEGRO SCHOOLS MAY BE EQUAL.  PP. 486-496. 

(A)  THE HISTORY OF THE FOURTEENTH AMENDMENT IS INCONCLUSIVE AS TO
ITS INTENDED EFFECT ON PUBLIC EDUCATION.  PP. 489-490. 

(B)  THE QUESTION PRESENTED IN THESE CASES MUST BE DETERMINED, NOT ON
THE BASIS OF CONDITIONS EXISTING WHEN THE FOURTEENTH AMENDMENT WAS
ADOPTED, BUT IN THE LIGHT OF THE FULL DEVELOPMENT OF PUBLIC EDUCATION
AND ITS PRESENT PLACE IN AMERICAN LIFE THROUGHOUT THE NATION.  PP. 492
493. 

(C)  WHERE A STATE HAS UNDERTAKEN TO PROVIDE AN OPPORTUNITY FOR AN
EDUCATION IN ITS PUBLIC SCHOOLS, SUCH AN OPPORTUNITY IS A RIGHT WHICH
MUST BE MADE AVAILABLE TO ALL ON EQUAL TERMS.  P. 493. 

(D)  SEGREGATION OF CHILDREN IN PUBLIC SCHOOLS SOLELY ON THE BASIS OF
RACE DEPRIVES CHILDREN OF THE MINORITY GROUP OF EQUAL EDUCATIONAL
OPPORTUNITIES, EVEN THOUGH THE PHYSICAL FACILITIES AND OTHER "TANGIBLE"
FACTORS MAY BE EQUAL.  PP. 493-494. 

(E)  THE "SEPARATE BUT EQUAL" DOCTRINE ADOPTED IN PLESSY V. FERGUSON,
163 U.S. 537, HAS NO PLACE IN THE FIELD OF PUBLIC EDUCATION.  P. 495. 

(F)  THE CASES ARE RESTORED TO THE DOCKET FOR FURTHER ARGUMENT ON
SPECIFIED QUESTIONS RELATING TO THE FORMS OF THE DECREES.  PP. 495
496. 

BROWN ET AL. V. BOARD OF EDUCATION OF TOPEKA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS.* 

*TOGETHER WITH NO. 2, BRIGGS ET AL. V. ELLIOTT ET AL., ON APPEAL FROM
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF SOUTH
CAROLINA, ARGUED DECEMBER 9-10, 1952, REARGUED DECEMBER 7-8, 1953; NO.
4, DAVIS ET AL. V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY,
VIRGINIA, ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA, ARGUED DECEMBER 10, 1952, REARGUED
DECEMBER 7-8, 1953; AND NO. 10, GEBHART ET AL. V. BELTON ET AL., ON
CERTIORARI TO THE SUPREME COURT OF DELAWARE, ARGUED DECEMBER 11, 1952,
REARGUED DECEMBER 9, 1953. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THESE CASES COME TO US FROM THE STATE OF KANSAS, SOUTH CAROLINA,
VIRGINIA, AND DELAWARE.  THEY ARE PREMISED ON DIFFERENT FACTS AND
DIFFERENT LOCAL CONDITIONS, BUT A COMMON LEGAL QUESTION JUSTIFIES THEIR
CONSIDERATION TOGETHER IN THIS CONSOLIDATED OPINION.  (FN1) 

IN EACH OF THE CASES, MINORS OF THE NEGRO RACE, THROUGH THEIR LEGAL
REPRESENTATIVES, SEEK THE AID OF THE COURTS IN OBTAINING ADMISSION TO
THE PUBLIC SCHOOLS OF THEIR COMMUNITY ON A NONSEGREGATED BASIS.  IN
EACH INSTANCE, THEY HAD BEEN DENIED ADMISSION TO SCHOOLS ATTENDED BY
WHITE CHILDREN UNDER LAWS REQUIRING OR PERMITTING SEGREGATION ACCORDING
TO RACE.  THIS SEGREGATION WAS ALLEGED TO DEPRIVE THE PLAINTIFFS OF THE
EQUAL PROTECTION OF THE LAWS UNDER THE FOURTEENTH AMENDMENT.  IN EACH
OF THE CASES OTHER THAN THE DELAWARE CASE, A THREE-JUDGE FEDERAL
DISTRICT COURT DENIED RELIEF TO THE PLAINTIFFS ON THE SO-CALLED
"SEPARATE BUT EQUAL" DOCTRINE ANNOUNCED BY THIS COURT IN PLESSY V.
FERGUSON, 163 U.S. 537.  UNDER THAT DOCTRINE, EQUALITY OF TREATMENT IS
ACCORDED WHEN THE RACES ARE PROVIDED SUBSTANTIALLY EQUAL FACILITIES,
EVEN THOUGH THESE FACILITIES BE SEPARATE.  IN THE DELAWARE CASE, THE
SUPREME COURT OF DELAWARE ADHERED TO THAT DOCTRINE, BUT ORDERED THAT
THE PLAINTIFFS BE ADMITTED TO THE WHITE SCHOOLS BECAUSE OF THEIR
SUPERIORITY TO THE NEGRO SCHOOLS. 

THE PLAINTIFFS CONTEND THAT SEGREGATED PUBLIC SCHOOLS ARE NOT "EQUAL"
AND CANNOT BE MADE "EQUAL," AND THAT HENCE THEY ARE DEPRIVED OF THE
EQUAL PROTECTION OF THE LAWS.  BECAUSE OF THE OBVIOUS IMPORTANCE OF THE
QUESTION PRESENTED, THE COURT TOOK JURISDICTION.  (FN2)  ARGUMENT WAS
HEARD IN THE 1952 TERM, AND REARGUMENT WAS HEARD THIS TERM ON CERTAIN
QUESTIONS PROPOUNDED BY THE COURT.  (FN3) 

REARGUMENT WAS LARGELY DEVOTED TO THE CIRCUMSTANCES SURROUNDING THE
ADOPTION OF THE FOURTEENTH AMENDMENT IN 1868.  IT COVERED EXHAUSTIVELY
CONSIDERATION OF THE AMENDMENT IN CONGRESS, RATIFICATION BY THE STATES,
THEN EXISTING PRACTICES IN RACIAL SEGREGATION, AND THE VIEWS OF
PROPONENTS AND OPPONENTS OF THE AMENDMENT.  THIS DISCUSSION AND OUR OWN
INVESTIGATION CONVINCE US THAT, ALTHOUGH THESE SOURCES CAST SOME LIGHT,
IT IS NOT ENOUGH TO RESOLVE THE PROBLEM WITH WHICH WE ARE FACED.  AT
BEST, THEY ARE INCONCLUSIVE.  THE MOST AVID PROPONENTS OF THE POST-WAR
AMENDMENTS UNDOUBTEDLY INTENDED THEM TO REMOVE ALL LEGAL DISTINCTIONS
AMONG "ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES."  THEIR
OPPONENTS, JUST AS CERTAINLY, WERE ANTAGONISTIC TO BOTH THE LETTER AND
THE SPIRIT OF THE AMENDMENTS AND WISHED THEM TO HAVE THE MOST LIMITED
EFFECT.  WHAT OTHERS IN CONGRESS AND THE STATE LEGISLATURES HAD IN MIND
CANNOT BE DETERMINED WITH ANY DEGREE OF CERTAINTY. 

AN ADDITIONAL REASON FOR THE INCONCLUSIVE NATURE OF THE AMENDMENT'S
HISTORY, WITH RESPECT TO SEGREGATED SCHOOLS, IS THE STATUS OF PUBLIC
EDUCATION AT THAT TIME.  (FN4)  IN THE SOUTH, THE MOVEMENT TOWARD FREE
COMMON SCHOOLS, SUPPORTED BY GENERAL TAXATION, HAD NOT YET TAKEN HOLD. 
EDUCATION OF WHITE CHILDREN WAS LARGELY IN THE HANDS OF PRIVATE
GROUPS.  EDUCATION OF NEGROES WAS ALMOST NON-EXISTENT, AND PRACTICALLY
ALL OF THE RACE WERE ILLITERATE.  IN FACT, ANY EDUCATION OF NEGROES WAS
FORBIDDEN BY LAW IN SOME STATES.  TODAY, IN CONTRAST, MANY NEGROES HAVE
ACHIEVED OUTSTANDING SUCCESS IN THE ARTS AND SCIENCES AS WELL AS IN THE
BUSINESS AND PROFESSIONAL WORLD.  IT IS TRUE THAT PUBLIC SCHOOL
EDUCATION AT THE TIME OF THE AMENDMENT HAD ADVANCED FURTHER IN THE
NORTH, BUT THE EFFECT OF THE AMENDMENT ON NORTHERN STATES WAS GENERALLY
IGNORED IN THE CONGRESSIONAL DEBATES.  EVEN IN THE NORTH, THE
CONDITIONS OF PUBLIC EDUCATION DID NOT APPROXIMATE THOSE EXISTING
TODAY.  THE CURRICULUM WAS USUALLY RUDIMENTARY; UNGRADED SCHOOLS WERE
COMMON IN RURAL AREAS; THE SCHOOL TERM WAS BUT THREE MONTHS A YEAR IN
MANY STATES; AND COMPULSORY SCHOOL ATTENDANCE WAS VIRTUALLY UNKNOWN. 
AS A CONSEQUENCE, IT IS NOT SURPRISING THAT THERE SHOULD BE SO LITTLE
IN THE HISTORY OF THE FOURTEENTH AMENDMENT RELATING TO ITS INTENDED
EFFECT ON PUBLIC EDUCATION. 

IN THE FIRST CASES IN THIS COURT CONSTRUING THE FOURTEENTH AMENDMENT,
DECIDED SHORTLY AFTER ITS ADOPTION, THE COURT INTERPRETED IT AS
PROSCRIBING ALL STATE-IMPOSED DISCRIMINATIONS AGAINST THE NEGRO RACE. 
(FN5)  THE DOCTRINE OF "SEPARATE BUT EQUAL" DID NOT MAKE ITS APPEARANCE
IN THIS COURT UNTIL 1896 IN THE CASE OF PLESSY V. FERGUSON, SUPRA,
INVOLVING NOT EDUCATION BUT TRANSPORTATION.  (FN6)  AMERICAN COURTS
HAVE SINCE LABORED WITH THE DOCTRINE FOR OVER HALF A CENTURY.  IN THIS
COURT, THERE HAVE BEEN SIX CASES INVOLVING THE "SEPARATE BUT EQUAL"
DOCTRINE IN THE FIELD OF PUBLIC EDUCATION.  (FN7)  IN CUMMING V. COUNTY
BOARD OF EDUCATION, 175 U.S. 528, THE GONG LUM V. RICE, 275 U.S. 78,
THE VALIDITY OF THE DOCTRINE ITSELF WAS NOT CHALLENGED.  (FN8)  IN MORE
RECENT CASES, ALL ON THE GRADUATE SCHOOL LEVEL, INEQUALITY WAS FOUND IN
THAT SPECIFIC BENEFITS ENJOYED BY WHITE STUDENTS WERE DENIED TO NEGRO
STUDENTS OF THE SAME EDUCATIONAL QUALIFICATIONS.  MISSOURI EX REL.
GAINES V. CANADA, 305 U.S. 337; SIPUEL V. OKLAHOMA, 332 U.S. 631;
SWEATT V. PAINTER, 339 U.S. 629; MCLAURIN V. OKLAHOMA STATE REGENTS,
339 U.S. 637.  IN NONE OF THESE CASES WAS IT NECESSARY TO RE-EXAMINE
THE DOCTRINE TO GRANT RELIEF TO THE NEGRO PLAINTIFF.  AND IN SWEATT V.
PAINTER, SUPRA, THE COURT EXPRESSLY RESERVED DECISION ON THE QUESTION
WHETHER PLESSY V. FERGUSON SHOULD BE HELD INAPPLICABLE TO PUBLIC
EDUCATION. 

IN THE INSTANT CASES, THAT QUESTION IS DIRECTLY PRESENTED.  HERE,
UNLIKE SWEATT V. PAINTER, THERE ARE FINDINGS BELOW THAT THE NEGRO AND
WHITE SCHOOLS INVOLVED HAVE BEEN EQUALIZED, OR ARE BEING EQUALIZED,
WITH RESPECT TO BUILDINGS, CURRICULA, QUALIFICATIONS AND SALARIES OF
TEACHERS, AND OTHER "TANGIBLE" FACTORS.  (FN9)  OUR DECISION,
THEREFORE, CANNOT TURN ON MERELY A COMPARISON OF THESE TANGIBLE FACTORS
IN THE NEGRO AND WHITE SCHOOLS INVOLVED IN EACH OF THE CASES.  WE MUST
LOOK INSTEAD TO THE EFFECT OF SEGREGATION ITSELF ON PUBLIC EDUCATION. 

IN APPROACHING THIS PROBLEM, WE CANNOT TURN THE CLOCK BACK TO 1868
WHEN THE AMENDMENT WAS ADOPTED, OR EVEN TO 1896 WHEN PLESSY V. FERGUSON
WAS WRITTEN.  WE MUST CONSIDER PUBLIC EDUCATION IN THE LIGHT OF ITS
FULL DEVELOPMENT AND ITS PRESENT PLACE IN AMERICAN LIFE THROUGHOUT THE
NATION.  ONLY IN THIS WAY CAN IT BE DETERMINED IF SEGREGATION IN PUBLIC
SCHOOLS DEPRIVES THESE PLAINTIFFS OF THE EQUAL PROTECTION OF THE LAWS. 

TODAY, EDUCATION IS PERHAPS THE MOST IMPORTANT FUNCTION OF STATE AND
LOCAL GOVERNMENTS.  COMPULSORY SCHOOL ATTENDANCE LAWS AND THE GREAT
EXPENDITURES FOR EDUCATION BOTH DEMONSTRATE OUR RECOGNITION OF THE
IMPORTANCE OF EDUCATION TO OUR DEMOCRATIC SOCIETY.  IT IS REQUIRED IN
THE PERFORMANCE OF OUR MOST BASIC PUBLIC RESPONSIBILITIES, EVEN SERVICE
IN THE ARMED FORCES.  IT IS THE VERY FOUNDATION OF GOOD CITIZENSHIP. 
TODAY IT IS A PRINCIPAL INSTRUMENT IN AWAKENING THE CHILD TO CULTURAL
VALUES, IN PREPARING HIM FOR LATER PROFESSIONAL TRAINING, AND IN
HELPING HIM TO ADJUST NORMALLY TO HIS ENVIRONMENT.  IN THESE DAYS, IT
IS DOUBTFUL THAT ANY CHILD MAY REASONABLY BE EXPECTED TO SUCCEED IN
LIFE IF HE IS DENIED THE OPPORTUNITY OF AN EDUCATION.  SUCH AN
OPPORTUNITY, WHERE THE STATE HAS UNDERTAKEN TO PROVIDE IT, IS A RIGHT
WHICH MUST BE MADE AVAILABLE TO ALL ON EQUAL TERMS. 

WE COME THEN TO THE QUESTION PRESENTED:  DOES SEGREGATION OF CHILDREN
IN PUBLIC SCHOOLS SOLELY ON THE BASIS OF RACE, EVEN THOUGH THE PHYSICAL
FACILITIES AND OTHER "TANGIBLE" FACTORS MAY BE EQUAL, DEPRIVE THE
CHILDREN OF THE MINORITY GROUP OF EQUAL EDUCATIONAL OPPORTUNITIES?  WE
BELIEVE THAT IT DOES. 

IN SWEATT V. PAINTER, SUPRA, IN FINDING THAT A SEGREGATED LAW SCHOOL
FOR NEGROES COULD NOT PROVIDE THEM EQUAL EDUCATIONAL OPPORTUNITIES,
THIS COURT RELIED IN LARGE PART ON "THOSE QUALITIES WHICH ARE INCAPABLE
OF OBJECTIVE MEASUREMENT BUT WHICH MAKE FOR GREATNESS IN A LAW
SCHOOL."  IN MCLAURIN V. OKLAHOMA STATE REGENTS, SUPRA, THE COURT, IN
REQUIRING THAT A NEGRO ADMITTED TO A WHITE GRADUATE SCHOOL BE TREATED
LIKE ALL OTHER STUDENTS, AGAIN RESORTED TO INTANGIBLE CONSIDERATIONS:
"  ...  HIS ABILITY TO STUDY, TO ENGAGE IN DISCUSSIONS AND EXCHANGE
VIEWS WITH OTHER STUDENTS, AND, IN GENERAL, TO LEARN HIS PROFESSION." 
SUCH CONSIDERATIONS APPLY WITH ADDED FORCE TO CHILDREN IN GRADE AND
HIGH SCHOOLS.  TO SEPARATE THEM FROM OTHERS OF SIMILAR AGE AND
QUALIFICATIONS SOLELY BECAUSE OF THEIR RACE GENERATES A FEELING OF
INFERIORITY AS TO THEIR STATUS IN THE COMMUNITY THAT MAY AFFECT THEIR
HEARTS AND MINDS IN A WAY UNLIKELY EVER TO BE UNDONE.  THE EFFECT OF
THIS SEPARATION ON THEIR EDUCATIONAL OPPORTUNITIES WAS WELL STATED BY
THE FINDING IN THE KANSAS CASE BY A COURT WHICH NEVERTHELESS FELT
COMPELLED TO RULE AGAINST THE NEGRO PLAINTIFFS: 

"SEGREGATION OF WHITE AND COLORED CHILDREN IN PUBLIC SCHOOLS HAS A
DETRIMENTAL EFFECT UPON THE COLORED CHILDREN.  THE IMPACT IS GREATER
WHEN IT HAS THE SANCTION OF THE LAW; FOR THE POLICY OF SEPARATING THE
RACES IS USUALLY INTERPRETED AS DENOTING THE INFERIORITY OF THE NEGRO
GROUP.  A SENSE OF INFERIORITY AFFECTS THE MOTIVATION OF A CHILD TO
LEARN.  SEGREGATION WITH THE SANCTION OF LAW, THEREFORE, HAS A TENDENCY
TO (RETARD) THE EDUCATIONAL AND MENTAL DEVELOPMENT OF NEGRO CHILDREN
AND TO DEPRIVE THEM OF SOME OF THE BENEFITS THEY WOULD RECEIVE IN A
RACIALLY INTEGRATED SCHOOL SYSTEM."  (FN10) 

WHATEVER MAY HAVE BEEN THE EXTENT OF PSYCHOLOGICAL KNOWLEDGE AT THE
TIME OF PLESSY V. FERGUSON, THIS FINDING IS AMPLY SUPPORTED BY MODERN
AUTHORITY.  (FN11)  ANY LANGUAGE IN PLESSY V. FERGUSON CONTRARY TO THIS
FINDING IS REJECTED. 

WE CONCLUDE THAT IN THE FIELD OF PUBLIC EDUCATION THE DOCTRINE OF
"SEPARATE BUT EQUAL" HAS NO PLACE.  SEPARATE EDUCATIONAL FACILITIES ARE
INHERENTLY UNEQUAL.  THEREFORE, WE HOLD THAT THE PLAINTIFFS AND OTHERS
SIMILARLY SITUATED FOR WHOM THE ACTIONS HAVE BEEN BROUGHT ARE, BY
REASON OF THE SEGREGATION COMPLAINED OF, DEPRIVED OF THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT.  THIS
DISPOSITION MAKES UNNECESSARY ANY DISCUSSION WHETHER SUCH SEGREGATION
ALSO VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
(FN12) 

BECAUSE THESE ARE CLASS ACTIONS, BECAUSE OF THE WIDE APPLICABILITY OF
THIS DECISION, AND BECAUSE OF THE GREAT VARIETY OF LOCAL CONDITIONS,
THE FORMULATION OF DECREES IN THESE CASES PRESENTS PROBLEMS OF
CONSIDERABLE COMPLEXITY.  ON REARGUMENT, THE CONSIDERATION OF
APPROPRIATE RELIEF WAS NECESSARILY SUBORDINATED TO THE PRIMARY QUESTION
- THE CONSTITUTIONALITY OF SEGREGATION IN PUBLIC EDUCATION.  WE HAVE
NOW ANNOUNCED THAT SUCH SEGREGATION IS A DENIAL OF THE EQUAL PROTECTION
OF THE LAWS.  IN ORDER THAT WE MAY HAVE THE FULL ASSISTANCE OF THE
PARTIES IN FORMULATING DECREES, THE CASES WILL BE RESTORED TO THE
DOCKET, AND THE PARTIES ARE REQUESTED TO PRESENT FURTHER ARGUMENT ON
QUESTIONS 4 AND 5 PREVIOUSLY PROPOUNDED BY THE COURT FOR THE REARGUMENT
THIS TERM.  (FN13)  THE ATTORNEY GENERAL OF THE UNITED STATES IS AGAIN
INVITED TO PARTICIPATE.  THE ATTORNEYS GENERAL OF THE STATES REQUIRING
OR PERMITTING SEGREGATION IN PUBLIC EDUCATION WILL ALSO BE PERMITTED TO
APPEAR AS AMICI CURIAE UPON REQUEST TO DO SO BY SEPTEMBER 15, 1954, AND
SUBMISSION OF BRIEFS BY OCTOBER 1, 1954.  (FN14)  IT IS SO ORDERED. 

FN1  IN THE KANSAS CASE, BROWN V. BOARD OF EDUCATION, THE PLAINTIFFS
ARE NEGRO CHILDREN OF ELEMENTARY SCHOOL AGE RESIDING IN TOPEKA.  THEY
BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS TO ENJOIN ENFORCEMENT OF A KANSAS STATUTE WHICH
PERMITS, BUT DOES NOT REQUIRE, CITIES OF MORE THAN 15,000 POPULATION TO
MAINTAIN SEPARATE SCHOOL FACILITIES FOR NEGRO AND WHITE STUDENTS.  KAN.
GEN. STAT. SEC. 72-1724 (1949).  PERSUANT TO THAT AUTHORITY, THE TOPEKA
BOARD OF EDUCATION ELECTED TO ESTABLISH SEGREGATED ELEMENTARY SCHOOLS. 
OTHER PUBLIC SCHOOLS IN THE COMMUNITY, HOWEVER, ARE OPERATED ON A
NONSEGREGATED BASIS.  THE THREE-JUDGE DISTRICT COURT, CONVENED UNDER 28
U.S.C. SECS.  2281 AND 2284, FOUND THAT SEGREGATION IN PUBLIC EDUCATION
HAS A DETRIMENTAL EFFECT UPON NEGRO CHILDREN, BUT DENIED RELIEF ON THE
GROUND THAT THE NEGRO AND WHITE SCHOOLS WERE SUBSTANTIALLY EQUAL WITH
RESPECT TO BUILDINGS, TRANSPORTATION, CURRICULA, AND EDUCATIONAL
QUALIFICATIONS OF TEACHERS.  98 F. SUPP. 797.  THE CASE IS HERE ON
DIRECT APPEAL UNDER 28 U.S.C. SEC. 1253.   IN THE SOUTH CAROLINA CASE,
BRIGGS V. ELLIOTT, THE PLAINTIFFS ARE NEGRO CHILDREN OF BOTH ELEMENTARY
AND HIGH SCHOOL AGE RESIDING IN CLARENDON COUNTY.  THEY BROUGHT THIS
ACTION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
SOUTH CAROLINA TO ENJOIN ENFORCEMENT OF PROVISIONS IN THE STATE
CONSTITUTION AND STATUTORY CODE WHICH REQUIRE THE SEGREGATION OF
NEGROES AND WHITES IN PUBLIC SCHOOLS.  S.C. CONST., ART. XI, SEC. 7;
S.C. CODE SEC. 5377 (1942).  THE THREE-JUDGE DISTRICT COURT, CONVENED
UNDER 28 U.S.C. SECS. 2281 AND 2284, DENIED THE REQUESTED RELIEF.  THE
COURT FOUND THAT THE NEGRO SCHOOLS WERE INFERIOR TO THE WHITE SCHOOLS
AND ORDERED THE DEFENDANTS TO BEGIN IMMEDIATELY TO EQUALIZE THE
FACILITIES.  BUT THE COURT SUSTAINED THE VALIDITY OF THE CONTESTED
PROVISIONS AND DENIED THE PLAINTIFFS ADMISSION TO THE WHITE SCHOOLS
DURING THE EQUALIZATION PROGRAM.  98 F. SUPP. 529.  THIS COURT VACATED
THE DISTRICT COURT'S JUDGMENT AND REMANDED THE CASE FOR THE PURPOSE OF
OBTAINING THE COURT'S VIEWS ON A REPORT FILED BY THE DEFENDANTS
CONCERNING THE PROGRESS MADE IN THE EQUALIZATION PROGRAM.  342 U.S.
350.  ON REMAND, THE DISTRICT COURT FOUND THAT SUBSTANTIAL EQUALITY HAD
BEEN ACHIEVED EXCEPT FOR BUILDINGS AND THAT THE DEFENDANTS WERE
PROCEEDING TO RECTIFY THIS INEQUALITY AS WELL.  103 F. SUPP. 920.  THE
CASE IS AGAIN HERE ON DIRECT APPEAL UNDER 28 U.S.C. SEC. 1253. 

IN THE VIRGINIA CASE, DAVIS V. COUNTY SCHOOL BOARD, THE PLAINTIFFS
ARE NEGRO CHILDREN OF HIGH SCHOOL AGE RESIDING IN PRINCE EDWARD
COUNTY.  THEY BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA TO ENJOIN ENFORCEMENT OF
PROVISIONS IN THE STATE CONSTITUTION AND STATUTORY CODE WHICH REQUIRE
THE SEGREGATION OF NEGROES AND WHITES IN PUBLIC SCHOOLS.  VA. CONST.,
SEC. 140; VA. CODE SEC. 22-221 (1950).  THE THREE-JUDGE DISTRICT COURT,
CONVENED UNDER 28 U.S.C. SECS. 2281 AND 2284, DENIED THE REQUESTED
RELIEF.  THE COURT FOUND THE NEGRO SCHOOL INFERIOR IN PHYSICAL PLANT,
CURRICULA, AND TRANSPORTATION, AND ORDERED THE DEFENDANTS FORTHWITH TO
PROVIDE SUBSTANTIALLY EQUAL CURRICULA AND TRANSPORTATION AND TO
"PROCEED WITH ALL REASONABLE DILIGENCE AND DISPATCH TO REMOVE" THE
INEQUALITY IN PHYSICAL PLANT.  BUT, AS IN THE SOUTH CAROLINA CASE, THE
COURT SUSTAINED THE VALIDITY OF THE CONTESTED PROVISIONS AND DENIED THE
PLAINTIFF'S ADMISSION TO THE WHITE SCHOOLS DURING THE EQUALIZATION
PROGRAM.  103 F. SUPP. 337.  THE CASE IS HERE ON DIRECT APPEAL UNDER 28
U.S.C. SEC. 1253. 

IN THE DELAWARE CASE, GEBHART V. BELTON, THE PLAINTIFFS ARE NEGRO
CHILDREN OF BOTH ELEMENTARY AND HIGH SCHOOL AGE RESIDING IN NEW CASTLE
COUNTY.  THEY BROUGHT THIS ACTION IN THE DELAWARE COURT OF CHANCERY TO
ENJOIN ENFORCEMENT OF PROVISIONS IN THE STATE CONSTITUTION AND
STATUTORY CODE WHICH REQUIRE THE SEGREGATION OF NEGROES AND WHITES IN
PUBLIC SCHOOLS.  DEL. CONST., ART. X, SEC. 2; DEL. REV. CODE SEC. 2631
(1935).  THE CHANCELLOR GAVE JUDGMENT FOR THE PLAINTIFFS AND ORDERED
THEIR IMMEDIATE ADMISSION TO SCHOOLS PREVIOUSLY ATTENDED ONLY BY WHITE
CHILDREN, ON THE GROUND THAT THE NEGRO SCHOOLS WERE INFERIOR WITH
RESPECT TO TEACHER TRAINING, PUPIL-TEACHER RATIO, EXTRACURRICULAR
ACTIVITIES, PHYSICAL PLANT, AND TIME AND DISTANCE INVOLVED IN TRAVEL. 
87 A.2D 862.  THE CHANCELLOR ALSO FOUND THAT SEGREGATION ITSELF RESULTS
IN AN INFERIOR EDUCATION FOR NEGRO CHILDREN (SEE NOTE 10, INFRA), BUT
DID NOT REST HIS DECISION ON THAT GROUND.  ID., AT 865.  THE
CHANCELLOR'S DECREE WAS AFFIRMED BY THE SUPREME COURT OF DELAWARE,
WHICH INTIMATED, HOWEVER, THAT THE DEFENDANTS MIGHT BE ABLE TO OBTAIN A
MODIFICATION OF THE DECREE AFTER EQUALIZATION OF THE NEGRO AND WHITE
SCHOOLS HAD BEEN ACCOMPLISHED.  91 A.2D 137, 152.  THE DEFENDANTS,
CONTENDING ONLY THAT THE DELAWARE COURTS HAD ERRED IN ORDERING THE
IMMEDIATE ADMISSION OF THE NEGRO PLAINTIFFS TO THE WHITE SCHOOLS,
APPLIED TO THIS COURT FOR CERTIORARI.  THE WRIT WAS GRANTED, 344 U.S.
891.  THE PLAINTIFFS, WHO WERE SUCCESSFUL BELOW, DID NOT SUBMIT A CROSS
PETITION. 

FN2  344 U.S. 1, 141, 891. 

FN3  345 U.S. 972.  THE ATTORNEY GENERAL OF THE UNITED STATES
PARTICIPATED BOTH TERMS AS AMICUS CURIAE. 

FN4  FOR A GENERAL STUDY OF THE DEVELOPMENT OF PUBLIC EDUCATION PRIOR
TO THE AMENDMENT, SEE BUTTS AND CREMIN, A HISTORY OF EDUCATION IN
AMERICAN CULTURE (1953), PTS.  I, II; CUBBERLEY, PUBLIC EDUCATION IN
THE UNITED STATES (1934 ED.), CC. II-XII.  SCHOOL PRACTICES CURRENT AT
THE TIME OF THE ADOPTION OF THE FOURTEENTH AMENDMENT ARE DESCRIBED IN
BUTTS AND CREMIN, SUPRA, AT 269-275; CUBBERLEY, SUPRA, AT 288-339, 408
431; KNIGHT, PUBLIC EDUCATION IN THE SOUTH (1922), CC. VIII, IX. SEE
ALSO H. EX. DOC. NO. 315, 41ST CONG., 2D SESS. (1871).  ALTHOUGH THE
DEMAND FOR FREE PUBLIC SCHOOLS FOLLOWED SUBSTANTIALLY THE SAME PATTERN
IN BOTH THE NORTH AND THE SOUTH, THE DEVELOPMENT IN THE SOUTH DID NOT
BEGIN TO GAIN MOMENTUM UNTIL ABOUT 1850, SOME TWENTY YEARS AFTER THAT
IN THE NORTH.  THE REASONS FOR THE SOMEWHAT SLOWER DEVELOPMENT IN THE
SOUTH (E.G., THE RURAL CHARACTER OF THE SOUTH AND THE DIFFERENT
REGIONAL ATTITUDES TOWARD STATE ASSISTANCE) ARE WELL EXPLAINED IN
CUBBERLEY, SUPRA, AT 408-423.  IN THE COUNTRY AS A WHOLE, BUT
PARTICULARLY IN THE SOUTH, THE WAR VIRTUALLY STOPPED ALL PROGRESS IN
PUBLIC EDUCATION.  ID., AT 427-428.  THE LOW STATUS OF NEGRO EDUCATION
IN ALL SECTIONS OF THE COUNTRY, BOTH BEFORE AND IMMEDIATELY AFTER THE
WAR, IS DESCRIBED IN BEALE, A HISTORY OF FREEDOM OF TEACHING IN
AMERICAN SCHOOLS (1941), 112-132, 175-195.  COMPULSORY SCHOOL
ATTENDANCE LAWS WERE NOT GENERALLY ADOPTED UNTIL AFTER THE RATIFICATION
OF THE FOURTEENTH AMENDMENT, AND IT WAS NOT UNTIL 1918 THAT SUCH LAWS
WERE IN FORCE IN ALL THE STATES.  CUBBERLEY, SUPRA, AT 563-565. 

FN5  SLAUGHTER-HOUSE CASES, 16 WALL.  36, 67-72 (1873); STRAUDER V.
WEST VIRGINIA, 100 U.S. 303, 307-308 (1880): 

"IT ORDAINS THAT NO STATE SHALL DEPRIVE ANY PERSON OF LIFE, LIBERTY,
OR PROPERTY, WITHOUT DUE PROCESS OF LAW, OR DENY TO ANY PERSONS WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.  WHAT IS THIS BUT
DECLARING THAT THE LAW IN THE STATES SHALL BE THE SAME FOR THE BLACK AS
FOR THE WHITE; THAT ALL PERSONS, WHETHER COLORED OR WHITE, SHALL STAND
EQUAL BEFORE THE LAWS OF THE STATES, AND, IN REGARD TO THE COLORED
RACE, FOR WHOSE PROTECTION THE AMENDMENT WAS PRIMARILY DESIGNED, THAT
NO DISCRIMINATION SHALL BE MADE AGAINST THEM BY LAW BECAUSE OF THEIR
COLOR?  THE WORDS OF THE AMENDMENT, IT IS TRUE, ARE PROHIBITORY, BUT
THEY CONTAIN A NECESSARY IMPLICATION OF A POSITIVE IMMUNITY, OR RIGHT,
MOST VALUABLE TO THE COLORED RACE, - THE RIGHT TO EXEMPTION FROM
UNFRIENDLY LEGISLATION AGAINST THEM DISTINCTIVELY AS COLORED, -
EXEMPTION FROM LEGAL DISCRIMINATIONS WHICH ARE STEPS TOWARDS REDUCING
THEM TO THE CONDITION OF A SUBJECT RACE." 

SEE ALSO VIRGINIA V. RIVES, 100 U.S. 313, 318 (1880); EX PARTE
VIRGINIA, 100 U.S. 339, 344-345 (1880). 

FN6  THE DOCTRINE APPARENTLY ORIGINATED IN ROBERTS V. CITY OF BOSTON,
59 MASS 198, 206 (1850), UPHOLDING SCHOOL SEGREGATION AGAINST ATTACK AS
BEING VIOLATIVE OF A STATE CONSTITUTIONAL GUARANTEE OF EQUALITY. 
SEGREGATION IN BOSTON PUBLIC SCHOOLS WAS ELIMINATED IN 1855.  MASS.
ACTS 1855, C. 256.  BUT ELSEWHERE IN THE NORTH SEGREGATION IN PUBLIC
EDUCATION HAS PERSISTED IN SOME COMMUNITIES UNTIL RECENT YEARS.  IT IS
APPARENT THAT SUCH SEGREGATION HAS LONG BEEN A NATIONWIDE PROBLEM, NOT
MERELY ONE OF SECTIONAL CONCERN. 

FN7  SEE ALSO BEREA COLLEGE V. KENTUCKY, 211 U.S. 45 (1908). 

FN8  IN THE CUMMING CASE, NEGRO TAXPAYERS SOUGHT AN INJUNCTION
REQUIRING THE DEFENDANT SCHOOL BOARD TO DISCONTINUE THE OPERATION OF A
HIGH SCHOOL FOR WHITE CHILDREN UNTIL THE BOARD RESUMED OPERATION OF A
HIGH SCHOOL FOR NEGRO CHILDREN.  SIMILARLY, IN THE GONG LUM CASE, THE
PLAINTIFF, A CHILD OF CHINESE DESCENT, CONTENDED ONLY THAT STATE
AUTHORITIES HAD MISAPPLIED THE DOCTRINE BY CLASSIFYING HIM WITH NEGRO
CHILDREN AND REQUIRING HIM TO ATTEND A NEGRO SCHOOL. 

FN9  IN THE KANSAS CASE, THE COURT BELOW FOUND SUBSTANTIAL EQUALITY
AS TO ALL SUCH FACTORS.  98 F. SUPP. 797, 798.  IN THE SOUTH CAROLINA
CASE, THE COURT BELOW FOUND THAT THE DEFENDANTS WERE PROCEEDING
"PROMPTLY AND IN GOOD FAITH TO COMPLY WITH THE COURT'S DECREE."  103 F.
SUPP. 920, 921.  IN THE VIRGINIA CASE, THE COURT BELOW NOTED THAT THE
EQUALIZATION PROGRAM WAS ALREADY "AFOOT AND PROGRESSING" (103 F. SUPP.
337, 341); SINCE THEN, WE HAVE BEEN ADVISED, IN THE VIRGINIA ATTORNEY
GENERAL'S BRIEF ON REARGUMENT, THAT THE PROGRAM HAS NOW BEEN
COMPLETED.  IN THE DELAWARE CASE, THE COURT BELOW SIMILARLY NOTED THAT
THE STATE'S EQUALIZATION PROGRAM WAS WELL UNDER WAY.  91 A.2D 137,
149. 

FN10  A SIMILAR FINDING WAS MADE IN THE DELAWARE CASE:  "I CONCLUDE
FROM THE TESTIMONY THAT IN OUR DELAWARE SOCIETY, STATE-IMPOSED
SEGREGATION IN EDUCATION ITSELF RESULTS IN THE NEGRO CHILDREN, AS A
CLASS, RECEIVING EDUCATIONAL OPPORTUNITIES WHICH ARE SUBSTANTIALLY
INFERIOR TO THOSE AVAILABLE TO WHITE CHILDREN OTHERWISE SIMILARLY
SITUATED."  87 A.2D 862, 865. 

FN11  K.B. CLARK, EFFECT OF PREJUDICE AND DISCRIMINATION ON
PERSONALITY DEVELOPMENT (MIDCENTURY WHITE HOUSE CONFERENCE ON CHILDREN
AND YOUTH, 1950); WITMER AND KOTINSKY, PERSONALITY IN THE MAKING
(1952), C. VI; DEUTSCHER AND CHEIN, THE PSYCHOLOGICAL EFFECTS OF
ENFORCED SEGREGATION:  A SURVEY OF SOCIAL SCIENCE OPINION, 26 J.
PSYCHOL.  259 (1948); CHEIN, WHAT ARE THE PSYCHOLOGICAL EFFECTS OF
SEGREGATION UNDER CONDITIONS OF EQUAL FACILITIES?, 3 INT. J. OPINION
AND ATTITUDE RES. 229 (1949); BRAMELD, EDUCATIONAL COSTS, IN
DISCRIMINATION AND NATIONAL WELFARE (MACIVER, ED., 1949), 44-48;
FRAZIER, THE NEGRO IN THE UNITED STATES (1949), 674-681.  AND SEE
GENERALLY MYRDAL, AN AMERICAN DILEMMA (1944). 

FN12  SEE BOLLING V. SHARPE, POST, P. 497, CONCERNING THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT. 

FN13  "4.  ASSUMING IT IS DECIDED THAT SEGREGATION IN PUBLIC SCHOOLS
VIOLATES THE FOURTEENTH AMENDMENT: 

"(A)  WOULD A DECREE NECESSARILY FOLLOW PROVIDING THAT, WITHIN THE
LIMITS SET BY NORMAL GEOGRAPHIC SCHOOL DISTRICTING, NEGRO CHILDREN
SHOULD FORTHWITH BE ADMITTED TO SCHOOLS OF THEIR CHOICE, OR: 

"(B)  MAY THIS COURT, IN THE EXERCISE OF ITS EQUITY POWERS, PERMIT AN
EFFECTIVE GRADUAL ADJUSTMENT TO BE BROUGHT ABOUT FROM EXISTING
SEGREGATED SYSTEMS TO A SYSTEM NOT BASED ON COLOR DISTINCTIONS? 

"5.  ON THE ASSUMPTION ON WHICH QUESTIONS 4(A) AND (B) ARE BASED, AND
ASSUMING FURTHER THAT THIS COURT WILL EXERCISE ITS EQUITY POWERS TO THE
END DESCRIBED IN QUESTION 4(B): 

"(A)  SHOULD THIS COURT FORMULATE DETAILED DECREES IN THESE CASES: 

"(B)  IF SO, WHAT SPECIFIC ISSUES SHOULD THE DECREES REACH: 

"(C)  SHOULD THIS COURT APPOINT A SPECIAL MASTER TO HEAR EVIDENCE
WITH A VIEW TO RECOMMENDING SPECIFIC TERMS FOR SUCH DECREES: 

"(D)  SHOULD THIS COURT REMAND TO THE COURTS OF FIRST INSTANCE WITH
DIRECTIONS TO FRAME DECREES IN THESE CASES, AND IF SO WHAT GENERAL
DIRECTIONS SHOULD THE DECREES OF THIS COURT INCLUDE AND WHAT PROCEDURES
SHOULD THE COURTS OF FIRST INSTANCE FOLLOW IN ARRIVING AT THE SPECIFIC
TERMS OF MORE DETAILED DECREES?" 

FN14  SEE RULE 42, REVISED RULES OF THIS COURT (EFFECTIVE JULY 1,
1954). 
..END :




















BOLLING V. SHARPE 347 U.S. 497 


NO. 8.  ARGUED DECEMBER 10-11, 1952 - REARGUED DECEMBER 8-9, 1953 -
DECIDED MAY 17, 1954. 


RACIAL SEGREGATION IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA
IS A DENIAL TO NEGRO CHILDREN OF THE DUE PROCESS OF LAW GUARANTEED BY
THE FIFTH AMENDMENT.  PP. 498-500. 

(A)  THOUGH THE FIFTH AMENDMENT DOES NOT CONTAIN AN EQUAL PROTECTION
CLAUSE, AS DOES THE FOURTEENTH AMENDMENT WHICH APPLIES ONLY TO THE
STATES, THE CONCEPTS OF EQUAL PROTECTION AND DUE PROCESS ARE NOT
MUTUALLY EXCLUSIVE.  P. 499. 

(B)  DISCRIMINATION MAY BE SO UNJUSTIFIABLE AS TO BE VIOLATIVE OF DUE
PROCESS.  P. 499. 

(C)  SEGREGATION IN PUBLIC EDUCATION IS NOT REASONABLY RELATED TO ANY
PROPER GOVERNMENTAL OBJECTIVE, AND THUS IT IMPOSES ON NEGRO CHILDREN OF
THE DISTRICT OF COLUMBIA A BURDEN THAT CONSTITUTES AN ARBITRARY
DEPRIVATION OF THEIR LIBERTY IN VIOLATION OF THE DUE PROCESS CLAUSE. 
PP. 499-500. 

(D)  IN VIEW OF THIS COURT'S DECISION IN BROWN V. BOARD OF EDUCATION,
ANTE, P. 483, THAT THE CONSTITUTION PROHIBITS THE STATES FROM
MAINTAINING RACIALLY SEGREGATED PUBLIC SCHOOLS, IT WOULD BE UNTHINKABLE
THAT THE SAME CONSTITUTION WOULD IMPOSE A LESSER DUTY ON THE FEDERAL
GOVERNMENT.  P. 500. 

(E)  THE CASE IS RESTORED TO THE DOCKET FOR FURTHER ARGUMENT ON
SPECIFIED QUESTIONS RELATING TO THE FORM OF THE DECREE.  P. 500. 

BOLLING ET AL. V. SHARPE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE CHALLENGES THE VALIDITY OF SEGREGATION IN THE PUBLIC
SCHOOLS OF THE DISTRICT OF COLUMBIA.  THE PETITIONERS, MINORS OF THE
NEGRO RACE, ALLEGE THAT SUCH SEGREGATION DEPRIVES THEM OF DUE PROCESS
OF LAW UNDER THE FIFTH AMENDMENT.  THEY WERE REFUSED ADMISSION TO A
PUBLIC SCHOOL ATTENDED BY WHITE CHILDREN SOLELY BECAUSE OF THEIR RACE. 
THEY SOUGHT THE AID OF THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
IN OBTAINING ADMISSION.  THAT COURT DISMISSED THEIR COMPLAINT.  THE
COURT GRANTED A WRIT OF CERTIORARI BEFORE JUDGMENT IN THE COURT OF
APPEALS BECAUSE OF THE IMPORTANCE OF THE CONSTITUTIONAL QUESTION
PRESENTED.  344 U.S. 873. 

WE HAVE THIS DAY HELD THAT THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT PROHIBITS THE STATES FROM MAINTAINING RACIALLY
SEGREGATED PUBLIC SCHOOLS.  (FN1)  THE LEGAL PROBLEM IN THE DISTRICT OF
COLUMBIA IS SOMEWHAT DIFFERENT, HOWEVER.  THE FIFTH AMENDMENT, WHICH IS
APPLICABLE IN THE DISTRICT OF COLUMBIA, DOES NOT CONTAIN AN EQUAL
PROTECTION CLAUSE AS DOES THE FOURTEENTH AMENDMENT WHICH APPLIES ONLY
TO THE STATES.  BUT THE CONCEPTS OF EQUAL PROTECTION AND DUE PROCESS,
BOTH STEMMING FROM OUR AMERICAN IDEAL OF FAIRNESS, ARE NOT MUTUALLY
EXCLUSIVE.  THE "EQUAL PROTECTION OF THE LAWS" IS A MORE EXPLICIT
SAFEGUARD OF PROHIBITED UNFAIRNESS THAN "DUE PROCESS OF LAW," AND,
THEREFORE, WE DO NOT IMPLY THAT THE TWO ARE ALWAYS INTERCHANGEABLE
PHRASES.  BUT, AS THIS COURT HAS RECOGNIZED, DISCRIMINATION MAY BE SO
UNJUSTIFIABLE AS TO BE VIOLATIVE OF DUE PROCESS.  (FN2) 

CLASSIFICATIONS BASED SOLELY UPON RACE MUST BE SCRUTINIZED WITH
PARTICULAR CARE, SINCE THEY ARE CONTRARY TO OUR TRADITIONS AND HENCE
CONSTITUTIONALLY SUSPECT.  (FN3)  AS LONG AGO AS 1896, THIS COURT
DECLARED THE PRINCIPLE "THAT THE CONSTITUTION OF THE UNITED STATES, IN
ITS PRESENT FORM, FORBIDS, SO FAR AS CIVIL AND POLITICAL RIGHTS ARE
CONCERNED, DISCRIMINATION BY THE GENERAL GOVERNMENT, OR BY THE STATES,
AGAINST ANY CITIZEN BECAUSE OF HIS RACE."  (FN4)  AND IN BUCHANAN V.
WARLEY, 245 U.S. 60, THE COURT HELD THAT A STATUTE WHICH LIMITED THE
RIGHT OF A PROPERTY OWNER TO CONVEY HIS PROPERTY TO A PERSON OF ANOTHER
RACE WAS, AS AN UNREASONABLE DISCRIMINATION, A DENIAL OF DUE PROCESS OF
LAW. 

ALTHOUGH THE COURT HAS NOT ASSUMED TO DEFINE "LIBERTY" WITH ANY GREAT
PRECISION, THAT TERM IS NOT CONFINED TO MERE FREEDOM FROM BODILY
RESTRAINT.  LIBERTY UNDER LAW EXTENDS TO THE FULL RANGE OF CONDUCT
WHICH THE INDIVIDUAL IS FREE TO PURSUE, AND IT CANNOT BE RESTRICTED
EXCEPT FOR A PROPER GOVERNMENTAL OBJECTIVE.  SEGREGATION IN PUBLIC
EDUCATION IS NOT REASONABLY RELATED TO ANY PROPER GOVERNMENTAL
OBJECTIVE, AND THUS IT IMPOSES ON NEGRO CHILDREN OF THE DISTRICT OF
COLUMBIA A BURDEN THAT CONSTITUTES AN ARBITRARY DEPRIVATION OF THEIR
LIBERTY IN VIOLATION OF THE DUE PROCESS CLAUSE. 

IN VIEW OF OUR DECISION THAT THE CONSTITUTION PROHIBITS THE STATES
FROM MAINTAINING RACIALLY SEGREGATED PUBLIC SCHOOLS, IT WOULD BE
UNTHINKABLE THAT THE SAME CONSTITUTION WOULD IMPOSE A LESSER DUTY ON
THE FEDERAL GOVERNMENT.  (FN5)  WE HOLD THAT RACIAL SEGREGATION IN THE
PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA IS A DENIAL OF THE DUE
PROCESS OF LAW GUARANTEED BY THE FIFTH AMENDMENT TO THE CONSTITUTION. 

FOR THE REASONS SET OUT IN BROWN V. BOARD OF EDUCATION, THIS CASE
WILL BE RESTORED TO THE DOCKET FOR REARGUMENT ON QUESTIONS 4 AND 5
PREVIOUSLY PROPOUNDED BY THE COURT.  345 U.S. 972.  IT IS SO ORDERED. 

FN1  BROWN V. BOARD OF EDUCATION, ANTE, P. 483. 

FN2  DETROIT BANK V. UNITED STATES, 317 U.S. 329; CURRIN V. WALLACE,
306 U.S. 1, 13-14; STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 585. 

FN3  KOREMATSU V. UNITED STATES, 323 U.S. 214, 216; HIRABAYASHI V.
UNITED STATES, 320 U.S. 81, 100. 

FN4  GIBSON V. MISSISSIPPI, 162 U.S. 565, 591.  CF. STEELE V.
LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192, 198-199. 

FN5  CF. HURD V. HODGE, 334 U.S. 24. 
..END :








CAPITAL SERVICE, INC. V. NATIONAL LABOR RELATIONS BOARD 347 U.S. 501 


NO. 398.  ARGUED APRIL 6, 1954 - DECIDED MAY 17, 1954 - 204 F.2D 848,
AFFIRMED. 


PETITIONER, A MANUFACTURER AND DISTRIBUTOR OF BAKERY PRODUCTS,
OBTAINED A STATE COURT INJUNCTION AGAINST A UNION'S PICKETING OF RETAIL
STORES THAT HANDLED PETITIONER'S PRODUCTS.  SUBSEQUENTLY AN UNFAIR
LABOR PRACTICE COMPLAINT BASED ON THE SAME CONDUCT OF THE UNION WAS
ISSUED UNDER THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, AND THE
REGIONAL DIRECTOR OF THE BOARD PETITIONED A FEDERAL DISTRICT COURT
UNDER SEC. 10(1) OF THE ACT FOR AN INJUNCTION RESTRAINING THE PICKETING
BY THE UNION PENDING FINAL ADJUDICATION BY THE BOARD.  THE BOARD SUED
IN THE SAME COURT TO ENJOIN PETITIONER FROM ENFORCING THE STATE COURT
INJUNCTION.  HELD: 

1.  UNDER 28 U.S.C. SEC. 1337, THE DISTRICT COURT HAD JURISDICTION OF
THE SUBJECT MATTER OF THE BOARD'S SUIT AS A "CIVIL ACTION OR
PROCEEDING" ARISING UNDER AN ACT OF CONGRESS "REGULATING COMMERCE."  P.
504. 

2.  THE DISTRICT COURT'S INJUNCTION WAS "NECESSARY IN AID OF ITS
JURISDICTION," WITHIN THE MEANING OF 28 U.S.C. SEC. 2283, AND WAS
AUTHORIZED BY A SPECIFIC EXCEPTION TO THE PROHIBITION OF THAT SECTION
AGAINST FEDERAL COURTS STAYING STATE COURT PROCEEDINGS.  PP.  504-506. 

CAPITAL SERVICE, INC. ET AL. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER MANUFACTURES AND DISTRIBUTES BAKERY PRODUCTS IN
CALIFORNIA.  A UNION SOUGHT UNSUCCESSFULLY TO ORGANIZE ITS EMPLOYEES. 
THEREUPON, THE UNION SOUGHT TO ENLIST THE AID OF PURCHASERS AND
CONSUMERS OF PETITIONER'S PRODUCTS.  AGENTS OF THE UNION REQUESTED
RETAIL STORES NOT TO HANDLE PETITIONER'S PRODUCTS AND STATED THAT IF
THEY CONTINUED TO DO SO, A PICKET LINE WOULD BE SET UP.  SOME STORES
ACQUIESCED; OTHERS DID NOT.  THE UNION PLACED PICKETS AT THE ENTRANCES
OF THE LATTER STORES, WITH THE RESULT THAT MANY DELIVERIES WERE
INTERRUPTED AND SOME EMPLOYEES OF OTHER EMPLOYERS REFUSED TO CROSS THE
PICKET LINES. 

PETITIONER MADE TWO COUNTER MOVES.  FIRST, IT FILED SUIT FOR AN
INJUNCTION AGAINST THE UNION IN THE CALIFORNIA COURTS.  A FEW DAYS
LATER, IT FILED A CHARGE OF AN UNFAIR LABOR PRACTICE AGAINST THE UNION
WITH RESPONDENT.  EACH HAD AS A BASIS THE SAME CONDUCT OF THE UNION. 

ON APRIL 7, 1952, THE CALIFORNIA COURT ISSUED A PRELIMINARY
INJUNCTION AGAINST THE UNION, BANNING ALL PICKETING OF RETAIL STORES. 
ON MAY 14, 1952, THE REGIONAL DIRECTOR OF RESPONDENT CONCLUDED, AFTER
INVESTIGATION, THAT INSOFAR AS THE CONDUCT OF THE UNION INVOLVED MERELY
AN APPEAL TO CUSTOMERS AND TO THE PUBLIC IN GENERAL, IT WAS LAWFUL
UNDER THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, 49 STAT. 449, 61
STAT. 136, 29 U.S.C.  SEC. 151 ET SEQ.; BUT THAT IT WAS UNLAWFUL,
INSOFAR AS IT INDUCED OR ENCOURAGED EMPLOYEES OF EMPLOYERS OTHER THAN
PETITIONER TO REFUSE TO PERFORM SERVICES AT THE PICKETED PLACES.  THE
REGIONAL DIRECTOR, ACTING ON BEHALF OF THE GENERAL COUNSEL, ISSUED AN
UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE UNION ON THAT LIMITED
BASIS.  ON THE SAME DAY, HE PETITIONED THE FEDERAL DISTRICT COURT FOR
AN INJUNCTION RESTRAINING SUCH CONDUCT OF THE UNION, PENDING FINAL
ADJUDICATION BY THE BOARD, AS REQUIRED BY SEC. 10(1) OF THE ACT. 
(FN1) 

SIMULTANEOUSLY WITH THE FILING OF THE SEC. 10(1) PETITION AGAINST THE
UNION, THE BOARD FILED SUIT IN THE SAME DISTRICT COURT, ASKING THAT
PETITIONER BE ENJOINED FROM ENFORCING THE STATE COURT INJUNCTION.  THE
DISTRICT COURT CONCLUDED THAT THE CONDUCT OF THE UNION, IN THE RESPECTS
STATED, WAS SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE BOARD AND THAT
THE ACTION OF THE STATE COURT INVADED THE EXCLUSIVE JURISDICTION OF THE
BOARD AND THE DISTRICT COURT.  IT ACCORDINGLY GRANTED THE RELIEF PRAYED
FOR.  THE COURT OF APPEALS AFFIRMED.  204 F.2D 848.  THE CASE IS HERE
ON A PETITION FOR A WRIT OF CERTIORARI LIMITED TO THE FOLLOWING
QUESTION: 

"IN VIEW OF THE FACT THAT EXCLUSIVE JURISDICTION OVER THE SUBJECT
MATTER WAS IN THE NATIONAL LABOR RELATIONS BOARD (GARNER V. TEAMSTERS
UNION, 346 U.S. 485), COULD THE FEDERAL DISTRICT COURT, ON APPLICATION
OF THE BOARD, ENJOIN PETITIONERS FROM ENFORCING AN INJUNCTION ALREADY
OBTAINED FROM THE STATE COURT?"  346 U.S. 936. 

I. THE DISTRICT COURT HAD JURISDICTION OF THE SUBJECT MATTER, BECAUSE
THIS IS A "CIVIL ACTION OR PROCEEDING" ARISING UNDER AN ACT OF CONGRESS
"REGULATING COMMERCE."  28 U.S.C.  SEC. 1337.  THE NATIONAL LABOR
RELATIONS ACT IS A LAW "REGULATING COMMERCE" (LABOR BOARD V. JONES &
LAUGHLIN STEEL CORP., 310 U.S. 1); AND HERE, AS IN AMERICAN FEDERATION
OF LABOR V. WATSON, 327 U.S. 582, 591, THE RIGHTS ASSERTED ARISE UNDER
THAT LAW. 

II.  IN ABSENCE OF A COMMAND OF THE CONGRESS TO THE CONTRARY, THE
POWER OF THE DISTRICT COURT TO ISSUE THE INJUNCTION IS CLEAR.  FEDERAL
COURTS SEEK TO AVOID NEEDLESS CONFLICT WITH STATE AGENCIES AND WITHHOLD
RELIEF BY WAY OF INJUNCTION WHERE STATE REMEDIES ARE AVAILABLE AND
ADEQUATE.  SEE ALABAMA COMMISSION V. SOUTHERN R. CO., 341 U.S. 341. 
BUT WHERE CONGRESS, ACTING WITHIN ITS CONSTITUTIONAL AUTHORITY, HAS
VESTED A FEDERAL AGENCY WITH EXCLUSIVE JURISDICTION OVER A SUBJECT
MATTER AND THE INTRUSION OF A STATE WOULD RESULT IN CONFLICT OF
FUNCTIONS, THE FEDERAL COURT MAY ENJOIN THE STATE PROCEEDING IN ORDER
TO PRESERVE THE FEDERAL RIGHT.  SEE PUBLIC UTILITIES COMMISSION V. GAS
CO., 317 U.S. 456, 468-470; BOWLES V. WILLINGHAM, 321 U.S. 503, 521
511.  CF. AMERICAN FEDERATION OF LABOR V. WATSON, SUPRA, AT 593-595. 
CONGRESS, HOWEVER, HAS PROVIDED THAT "A COURT OF THE UNITED STATES MAY
NOT GRANT AN INJUNCTION TO STAY PROCEEDINGS IN A STATE COURT EXCEPT AS
EXPRESSLY AUTHORIZED BY ACT OF CONGRESS, OR WHERE NECESSARY IN AID OF
ITS JURISDICTION, OR TO PROTECT OR EFFECTUATE ITS JUDGMENTS."  28
U.S.C. SEC. 2283. 

WE DO NOT STOP TO CONSIDER THE MANY QUESTIONS WHICH HAVE BEEN
PROPOUNDED UNDER THIS NEWLY WORDED PROVISION OF THE CODE.  (FN2)  ONE
ALONE SUFFICES FOR THIS CASE.  FOR WE CONCLUDE THAT THE INJUNCTION
ISSUED BY THE DISTRICT COURT WAS "NECESSARY IN AID OF ITS JURISDICTION"
AND THUS PERMITTED UNDER THE EXCEPTIONS SPECIFICALLY ALLOWED BY
CONGRESS. 

THE STATE COURT INJUNCTION RESTRAINS CONDUCT WHICH THE DISTRICT COURT
WAS ASKED TO ENJOIN IN THE SEC. 10(1) PROCEEDING BROUGHT IN THE
DISTRICT COURT BY THE BOARD,S REGIONAL DIRECTOR AGAINST THE UNION.  IN
ORDER TO MAKE THE SEC. 10(1) POWER EFFECTIVE THE BOARD MUST HAVE
AUTHORITY TO TAKE ALL STEPS NECESSARY TO PRESERVE ITS CASE.  IF THE
STATE COURT DECREE WERE TO STAND, THE FEDERAL DISTRICT COURT WOULD BE
LIMITED IN THE ACTION IT MIGHT TAKE.  IF THE FEDERAL DISTRICT COURT
WERE TO HAVE UNFETTERED POWER TO DECIDE FOR OR AGAINST THE UNION, AND
TO WRITE SUCH DECREE AS IT DEEMED NECESSARY IN ORDER TO EFFECTUATE THE
POLICIES OF THE ACT, IT MUST BE FREED OF ALL RESTRAINTS FROM THE OTHER
TRIBUNAL.  TO EXERCISE ITS JURISDICTION FREELY AND FULLY IT MUST FIRST
REMOVE THE STATE DECREE.  WHEN IT DID SO, IT ACTED "WHERE NECESSARY IN
AID OF ITS JURISDICTION."  AFFIRMED. 

FN1  SECTION 10(1) READS AS FOLLOWS: 

"WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN AN UNFAIR
LABOR PRACTICE WITHIN THE MEANING OF PARAGRAPH (4)(A), (B), OR (C) OF
MADE FORTHWITH AND GIVEN PRIORITY OVER ALL OTHER CASES EXCEPT CASES OF
LIKE CHARACTER IN THE OFFICE WHERE IT IS FILED OR TO WHICH IT IS
REFERRED.  IF, AFTER SUCH INVESTIGATION, THE OFFICER OR REGIONAL
ATTORNEY TO WHOM THE MATTER MAY BE REFERRED HAS REASONABLE CAUSE TO
BELIEVE SUCH CHARGE IS TRUE AND THAT A COMPLAINT SHOULD ISSUE, HE
SHALL, ON BEHALF OF THE BOARD, PETITION ANY DISTRICT COURT OF THE
UNITED STATES (INCLUDING THE DISTRICT COURT OF THE UNITED STATES FOR
THE DISTRICT OF COLUMBIA) WITHIN ANY DISTRICT WHERE THE UNFAIR LABOR
PRACTICE IN QUESTION HAS OCCURRED, IS ALLEGED TO HAVE OCCURRED, OR
WHEREIN SUCH PERSON RESIDES OR TRANSACTS BUSINESS, FOR APPROPRIATE
INJUNCTIVE RELIEF PENDING THE FINAL ADJUDICATION OF THE BOARD WITH
RESPECT TO SUCH MATTER.  UPON THE FILING OF ANY SUCH PETITION THE
DISTRICT COURT SHALL HAVE JURISDICTION TO GRANT SUCH INJUNCTIVE RELIEF
OR TEMPORARY RESTRAINING ORDER AS IT DEEMS JUST AND PROPER,
NOTWITHSTANDING ANY OTHER PROVISION OF LAW:  PROVIDED FURTHER, THAT NO
TEMPORARY RESTRAINING ORDER SHALL BE ISSUED WITHOUT NOTICE UNLESS A
PETITION ALLEGES THAT SUBSTANTIAL AND IRREPARABLE INJURY TO THE
CHARGING PARTY WILL BE UNAVOIDABLE AND SUCH TEMPORARY RESTRAINING ORDER
SHALL BE EFFECTIVE FOR NO LONGER THAN FIVE DAYS AND WILL BECOME VOID AT
THE EXPIRATION OF SUCH PERIOD.  UPON FILING OF ANY SUCH PETITION THE
COURTS SHALL CAUSE NOTICE THEREOF TO BE SERVED UPON ANY PERSON INVOLVED
IN THE CHARGE AND SUCH PERSON, INCLUDING THE CHARGING PARTY, SHALL BE
GIVEN AN OPPORTUNITY TO APPEAR BY COUNSEL AND PRESENT ANY RELEVANT
TESTIMONY:  PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SUBSECTION
DISTRICT COURTS SHALL BE DEEMED TO HAVE JURISDICTION OF A LABOR
ORGANIZATION (1) IN THE DISTRICT IN WHICH SUCH ORGANIZATION MAINTAINS
ITS PRINCIPAL OFFICE, OR (2) IN ANY DISTRICT IN WHICH ITS DULY
AUTHORIZED OFFICERS OR AGENTS ARE ENGAGED IN PROMOTING OR PROTECTING
THE INTERESTS OF EMPLOYEE MEMBERS.  THE SERVICE OF LEGAL PROCESS UPON
SUCH OFFICER OR AGENT SHALL CONSTITUTE SERVICE UPON THE LABOR
ORGANIZATION AND MAKE SUCH ORGANIZATION A PARTY TO THE SUIT.  IN
SITUATIONS WHERE SUCH RELIEF IS APPROPRIATE THE PROCEDURE SPECIFIED
HEREIN SHALL APPLY TO CHARGES WITH RESPECT TO SECTION 8(B)(4)(D)."  61
STAT. 149, 29 U.S.C. SEC. 160(L). 

FN2  SECTION 2283 TOOK THE PLACE OF FORMER SEC. 265 OF THE JUDICIAL
CODE WHICH PROVIDED: 

"THE WRIT OF INJUNCTION SHALL NOT BE GRANTED BY ANY COURT OF THE
UNITED STATES TO STAY PROCEEDINGS IN ANY COURT OF A STATE, EXCEPT IN
CASES WHERE SUCH INJUNCTION MAY BE AUTHORIZED BY ANY LAW RELATING TO
PROCEEDINGS IN BANKRUPTCY." 

IN VIEW OF OUR RULING, WE FIND IT UNNECESSARY TO CONSIDER WHETHER,
APART FROM THE SPECIFIC EXCEPTIONS CONTAINED IN SEC. 2283, THE DISTRICT
COURT WAS JUSTIFIED IN ENJOINING THIS INTRUSION ON AN EXCLUSIVE FEDERAL
JURISDICTION.  CF. BOWLES V. WILLINGHAM, 321 U.S. 503, 510-511. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















UNITED STATES V. GILMAN 347 U.S. 507 


NO. 449.  ARGUED MARCH 10-11, 1954 - DECIDED MAY 17, 1954 - 206 F.2D
846, AFFIRMED. 


THE UNITED STATES IS NOT ENTITLED TO RECOVER INDEMNITY FROM ONE OF ITS
EMPLOYEES FOR WHOSE NEGLIGENCE IT HAS BEEN HELD LIABLE UNDER THE
FEDERAL TORT CLAIMS ACT.  PP. 507-513. 

UNITED STATES V. GILMAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SINGLE QUESTION IN THE CASE IS WHETHER THE UNITED STATES MAY
RECOVER INDEMNITY FROM ONE OF ITS EMPLOYEES AFTER IT HAS BEEN HELD
LIABLE UNDER THE FEDERAL TORT CLAIMS ACT, (FN1) 60 STAT. 842, 28 U.S.C.
SECS. 1346, 2671 ET SEQ., FOR THE NEGLIGENCE OF THE EMPLOYEE. 

RESPONDENT, AN EMPLOYEE OF THE UNITED STATES, HAD A COLLISION WITH
THE CAR OF ONE DARNELL, WHILE RESPONDENT WAS DRIVING A GOVERNMENT
AUTOMOBILE.  DARNELL SUED THE UNITED STATES UNDER THE TORT CLAIMS ACT. 
THE UNITED STATES FILED A THIRD-PARTY COMPLAINT AGAINST RESPONDENT,
ASKING THAT IF IT SHOULD BE HELD LIABLE TO DARNELL, IT HAVE INDEMNITY
FROM RESPONDENT.  THE DISTRICT COURT FOUND THAT DARNELL'S INJURIES WERE
CAUSED SOLELY BY THE NEGLIGENCE OF RESPONDENT, ACTING WITHIN THE SCOPE
OF HIS EMPLOYMENT.  IT ENTERED JUDGMENT AGAINST THE UNITED STATES FOR
$5,500 AND JUDGMENT OVER FOR THE UNITED STATES IN THE SAME AMOUNT.  THE
COURT OF APPEALS REVERSED THE JUDGMENT AGAINST RESPONDENT BY A DIVIDED
VOTE.  206 F.2D 846.  THE CASE IS HERE ON WRIT OF CERTIORARI.  346 U.S.
914. 

PETITIONER'S ARGUMENT IS THAT THE RIGHT OF INDEMNITY, THOUGH NOT
EXPRESSLY GRANTED BY THE TORT CLAIMS ACT, IS TO BE IMPLIED.  A PRIVATE
EMPLOYER, IT IS SAID, HAS A COMMON-LAW RIGHT OF INDEMNITY AGAINST AN
EMPLOYEE WHOSE NEGLIGENCE HAS MADE THE EMPLOYER LIABLE.  THE TORT
CLAIMS ACT, BY IMPOSING LIABILITY ON THE UNITED STATES FOR THE
NEGLIGENT ACTS OF ITS EMPLOYEES, HAS PLACED IT IN THE GENERAL POSITION
OF A PRIVATE EMPLOYER.  THEREFORE, IT SHOULD HAVE THE COMPARABLE RIGHT
OF INDEMNITY AGAINST THE NEGLIGENT EMPLOYEE WHICH PRIVATE EMPLOYERS
HAVE.  UNITED STATES V. YELLOW CAB CO., 340 U.S. 543, IS SAID TO SHOW
THE WAY.  FOR THERE WE HELD THAT THE UNITED STATES COULD BE SUED AS A
THIRD-PARTY DEFENDANT FOR CONTRIBUTIONS CLAIMED BY A JOINT TORT-FEASOR,
THOUGH NO SPECIFIC PROVISION OF THE TORT CLAIMS ACT PROVIDED FOR SUCH
SUITS. 

IN THAT CASE, HOWEVER, WE WERE DEALING WITH AN ESTABLISHED TYPE OF
LIABILITY, WHICH WAS WITHIN THE BROAD SWEEP OF THE CLAIMS FOR WHICH THE
UNITED STATES HAD AGREED TO STAND LIABLE.  SINCE THE CLAIM WAS WITHIN
THE CLASS COVERED BY THE WAIVER OF SOVEREIGN IMMUNITY, THE COURT
REFUSED TO RESTRICT ITS ENFORCEMENT TO SEPARATE ACTIONS FOR
CONTRIBUTION. 

THE PRESENT CASE IS QUITE DIFFERENT.  WE DEAL NOT WITH THE LIABILITY
OF THE UNITED STATES, BUT WITH THE LIABILITY OF ITS EMPLOYEES.  THE
TORT CLAIMS ACT DOES NOT TOUCH THE LIABILITY OF THE EMPLOYEES EXCEPT IN
ONE RESPECT:  BY 28 U.S.C. SEC. 2676 IT MAKES THE JUDGMENT AGAINST THE
UNITED STATES "A COMPLETE BAR" TO ANY ACTION BY THE CLAIMANT AGAINST
THE EMPLOYEE.  AND SEE SEC. 2672. 

THE RELATIONS BETWEEN THE UNITED STATES AND ITS EMPLOYEES HAVE
PRESENTED A MYRIAD OF PROBLEMS WITH WHICH THE CONGRESS OVER THE YEARS
HAS DEALT.  TENURE, RETIREMENT, DISCHARGE, VETERANS' PREFERENCES, THE
RESPONSIBILITY OF THE UNITED STATES TO SOME EMPLOYEES FOR NEGLIGENT
ACTS OF OTHER EMPLOYEES - THESE ARE A FEW OF THE ASPECTS OF THE PROBLEM
ON WHICH CONGRESS HAS LEGISLATED.  GOVERNMENT EMPLOYMENT GIVES RISE TO
POLICY QUESTIONS OF GREAT IMPORT, BOTH THE EMPLOYEES AND TO THE
EXECUTIVE AND LEGISLATIVE BRANCHES.  ON THE EMPLOYEE SIDE ARE QUESTIONS
OF CONSIDERABLE IMPORT.  DISCIPLINE OF THE EMPLOYEE, THE EXACTIONS
WHICH MAY BE MADE OF HIM, THE MERITS OR DEMERITS HE MAY SUFFER, THE
RATE OF HIS PROMOTION ARE OF GREAT CONSEQUENCE TO THOSE WHO MAKE
GOVERNMENT SERVICE THEIR CAREER.  THE RIGHT OF THE EMPLOYER TO SUE THE
EMPLOYEE IS A FORM OF DISCIPLINE.  PERHAPS THE SUITS WHICH WOULD BE
INSTITUTED UNDER THE RULE WHICH PETITIONER ASKS WOULD MOSTLY BE BROUGHT
ONLY WHEN THE EMPLOYEE CARRIED INSURANCE.  BUT THE DECISION WE COULD
FASHION COULD HAVE NO SUCH LIMITATIONS, SINCE WE DEAL ONLY WITH A RULE
OF INDEMNITY WHICH IS UTTERLY INDEPENDENT OF ANY UNDERWRITING OF THE
LIABILITY.  MOREOVER, THE SUITS THAT WOULD BE BROUGHT WOULD HAUL THE
EMPLOYEE TO COURT AND REQUIRE HIM TO FIND A LAWYER, TO FACE HIS
EMPLOYER'S CHARGE, AND TO SUBMIT TO THE ORDEAL OF A TRIAL.  THE TIME
OUT FOR THE TRIAL AND ITS PREPARATION, PLUS THE OUT-OF-POCKET EXPENSES,
MIGHT WELL IMPOSE ON THE EMPLOYEE A HEAVIER FINANCIAL BURDEN THAN THE
LOSS OF HIS SENIORTIY OR A DEMOTION IN RANK.  WHEN THE UNITED STATES
SUES AN EMPLOYEE AND TAKES HIM TO COURT, IT LAYS THE HEAVY HAND OF
DISCIPLINE ON HIM, AS ONEROUS TO THE EMPLOYEE PERHAPS AS ANY MEASURE
THE EMPLOYER MIGHT TAKE, EXCEPT DISCHARGE ITSELF. 

ON THE GOVERNMENT SIDE ARE QUESTIONS OF EMPLOYEE MORALE AND FISCAL
POLICY.  WE HAVE NO WAY OF KNOWING WHAT THE IMPACT OF THE RULE OF
INDEMNITY WE ARE ASKED TO CREATE MIGHT BE.  BUT WE DO KNOW THE QUESTION
HAS SERIOUS ASPECTS - CONSIDERATIONS THAT PERTAIN TO THE FINANCIAL
ABILITY OF EMPLOYEES, TO THEIR EFFICIENCY, TO THEIR MORALE.  THESE ARE
ALL IMPORTANT TO THE EXECUTIVE BRANCH.  THE FINANCIAL BURDEN PLACED ON
THE UNITED STATES BY THE TORT CLAIMS ACT ALSO RAISES IMPORTANT
QUESTIONS OF FISCAL POLICY.  A PART OF THAT FISCAL PROBLEM IS THE
QUESTION OF REIMBURSEMENT OF THE UNITED STATES FOR THE LOSSES IT
SUFFERS AS A RESULT OF THE WAIVER OF ITS SOVEREIGN IMMUNITY.  PERHAPS
THE LOSSES SUFFERED ARE SO GREAT THAT GOVERNMENT EMPLOYEES SHOULD BE
REQUIRED TO CARRY PART OF THE BURDEN.  PERHAPS THE COST IN THE MORALE
AND EFFICIENCY OF EMPLOYEES WOULD BE TOO HIGH A PRICE TO PAY FOR THE
RULE OF INDEMNITY THE PETITIONER NOW ASKS US TO WRITE INTO THE TORT
CLAIMS ACT. 

WE HAD AN ANALOGOUS PROBLEM BEFORE US IN UNITED STATES V. STANDARD
OIL CO., 332 U.S. 301, WHERE THE UNITED STATES SUED THE OWNER AND
DRIVER OF A TRUCK FOR THE NEGLIGENT INJURY OF A SOLDIER IN THE ARMY OF
THE UNITED STATES, CLAIMING DAMAGES FOR LOSS OF THE SOLDIER'S SERVICE
DURING THE PERIOD OF HIS DISABILITY.  WE WERE ASKED TO EXTEND THE
COMMON-LAW ACTION OF PER QUOD SERVITIUM AMISIT TO THE GOVERNMENT
SOLDIER RELATION.  WE DECLINED, STATING THAT THE PROBLEM INVOLVED
FEDERAL FISCAL AFFAIRS OVER WHICH CONGRESS, NOT THE COURT, SHOULD
FORMULATE THE POLICY. 

THE REASONS FOR FOLLOWING THAT COURSE IN THE PRESENT CASE ARE EVEN
MORE COMPELLING.  HERE A COMPLEX OF RELATIONS BETWEEN FEDERAL AGENCIES
AND THEIR STAFFS IS INVOLVED.  MOREOVER, THE CLAIM NOW ASSERTED, THOUGH
THE PRODUCT OF LAW CONGRESS PASSED, IS A MATTER ON WHICH CONGRESS HAS
NOT TAKEN A POSITION.  IT PRESENTS QUESTIONS OF POLICY ON WHICH
CONGRESS HAS NOT SPOKEN.  (FN2)  THE SELECTION OF THAT POLICY WHICH IS
MOST ADVANTAGEOUS TO THE WHOLE INVOLVES A HOST OF CONSIDERATIONS THAT
MUST BE WEIGHED AND APPRAISED.  THAT FUNCTION IS MORE APPROPRIATELY FOR
THOSE WHO WRITE THE LAWS, RATHER THAN FOR THOSE WHO INTERPRET THEM. 
AFFIRMED. 

FN1  THE ACT PROVIDES IN PERTINENT PART AS FOLLOWS: 

SEC. 1346.  (B) "SUBJECT TO THE PROVISIONS OF CHAPTER 171 OF THIS
TITLE, THE DISTRICT COURTS, TOGETHER WITH THE DISTRICT COURT FOR THE
TERRITORY OF ALASKA, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF THE CANAL ZONE AND THE DISTRICT COURT OF THE VIRGIN ISLANDS, SHALL
HAVE 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 OMMISSION OCCURRED." 

SEC. 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  ... ." 

SEC. 2676.  "THE JUDGMENT IN AN ACTION UNDER SECTION 1346(B) OF THIS
TITLE SHALL CONSTITUTE A COMPLETE BAR TO ANY ACTION BY THE CLAIMANT, BY
REASON OF THE SAME SUBJECT MATTER, AGAINST THE EMPLOYEE OF THE
GOVERNMENT WHOSE ACT OR OMISSION GAVE RISE TO THE CLAIM." 

FN2  THOUGH THE LEGISLATIVE HISTORY OF THE ACT IS NOT TOO HELPFUL ON
THIS ISSUE, SUCH INDICATIONS AS THERE ARE POINT TOWARD THE RESULT WE
REACH.  THE COURT RECENTLY MADE AN EXTENSIVE REVIEW OF THE HISTORY OF
THE TORT CLAIMS ACT IN DALEHITE V. UNITED STATES, 346 U.S. 15, 24-30. 
AS THERE EXPLAINED, MUCH OF ITS RELEVANT HISTORY APPEARS IN THE SEVENTY
SEVENTH CONGRESS, RATHER THAN IN THE SEVENTY-NINTH CONGRESS, WHICH
ENACTED IT.  IN THE SEVENTY-SEVENTH CONGRESS THE BILL TOOK
SUBSTANTIALLY THE FORM IN WHICH IT WAS FINALLY ENACTED BY THE SEVENTY
NINTH CONGRESS. 

AT THE HEARINGS BEFORE THE HOUSE JUDICIARY COMMITTEE OF THE SEVENTY
SEVENTH CONGRESS, THE QUESTION OF THE LIABILITY OF GOVERNMENT EMPLOYEES
AROSE.  MR. FRANCIS M. SHEA, THEN ASSISTANT ATTORNEY GENERAL, EXPLAINED
THE GOVERNMENT'S POSITION.  IN DISCUSSING THE PROVISION FOR
ADMINISTRATIVE SETTLEMENT OF SMALL CLAIMS (WHICH IS NOW 28 U.S.C. SEC.
2672), MR. SHEA WAS QUESTIONED CONCERNING THE CLAUSE UNDER WHICH
ACCEPTANCE OF AN AWARD BY THE CLAIMANT CONSTITUTES A RELEASE OF ALL
CLAIMS AGAINST THE EMPLOYEE, AS WELL AS AGAINST THE UNITED STATES.  THE
PRESENT SEC. 2672 HAS MUCH THE SAME EFFECT AS SEC. 2676, WHICH MAKES A
JUDGMENT AGAINST THE UNITED STATES A BAR TO ACTION AGAINST THE
EMPLOYEE.  SEE NOTE 1, SUPRA.  MR. SHEA'S STATEMENTS CONCERNING THE
ADMINISTRATIVE SETTLEMENT PROVISION THEREFORE HAVE SOME RELEVANCE TO
THE ISSUE IN THE PRESENT CASE. 

"MR. SPRINGER.  I WOULD LIKE TO DIRECT YOUR ATTENTION, MR. SHEA, TO
LINE 19.  WHY DO YOU PROVIDE THIS ACCEPTANCE OF THE AWARD AS
CONSTITUTING A BAR TO THE CLAIM AGAINST THE EMPLOYEE?  IS THAT THE
INTENTION OF THE PROVISION, AND WHAT IS THE ULTIMATE PURPOSE OF IT? 

"MR. SHEA  ...  .  IT HAS BEEN FOUND THAT THE GOVERNMENT, THROUGH THE
DEPARTMENT OF JUSTICE, IS CONSTANTLY BEING CALLED ON BY THE HEADS OF
THE VARIOUS AGENCIES TO GO IN AND DEFEND, WE WILL SAY, A PERSON WHO IS
DRIVING A MAIL TRUCK WHEN SUIT IS BROUGHT AGAINST HIM FOR DAMAGES OR
INJURIES CAUSED WHILE HE WAS OPERATING THE TRUCK WITHIN THE SCOPE OF
HIS DUTIES.  ALLEGATIONS OF NEGLIGENCE ARE USUALLY MADE.  IT HAS BEEN
FOUND, OVER LONG YEARS OF EXPERIENCE, THAT UNLESS THE GOVERNMENT IS
WILLING TO GO IN AND DEFEND SUCH PERSONS THE CONSEQUENCE IS A VERY REAL
ATTACK UPON THE MORALE OF THE SERVICES.  MOST OF THESE PERSONS ARE NOT
IN A POSITION TO STAND OR DEFEND LARGE DAMAGE SUITS, AND THEY ARE OF
COURSE NOT GENERALLY IN A POSITION TO SECURE THE KIND OF INSURANCE
WHICH ONE WOULD IF ONE WERE DRIVING FOR HIMSELF. 

"IF THE GOVERNMENT HAS SATISFIED A CLAIM WHICH IS MADE ON ACCOUNT OF
A COLLISION BETWEEN A TRUCK CARRYING MAIL AND A PRIVATE CAR, THAT
SHOULD, IN OUR JUDGMENT, BE THE END OF IT.  AFTER THE CLAIMANT HAS
OBTAINED SATISFACTION OF HIS CLAIM FROM THE GOVERNMENT, EITHER BY A
JUDGMENT OR BY AN ADMINISTRATIVE AWARD, HE SHOULD NOT BE ABLE TO TURN
AROUND AND SUE THE DRIVER OF THE TRUCK.  IF HE COULD SUE THE DRIVER OF
THE TRUCK, WE WOULD HAVE TO GO IN AND DEFEND THE DRIVER IN THE SUIT
BROUGHT AGAINST HIM, AND THERE WILL THUS BE CONTINUED A VERY
SUBSTANTIAL BURDEN WHICH THE GOVERNMENT HAS HAD TO BEAR IN CONDUCTING
THE DEFENSE OF POST-OFFICE DRIVERS AND OTHER GOVERNMENT EMPLOYEES. 

"MR. MCLAUGHLIN.  HAVE YOU CONSIDERED THE PRACTICE FOLLOWED BY LARGE
CORPORATIONS AND RAILWAY COMPANIES WITH RESPECT TO DEFENSE OF EMPLOYEES
WHO ARE JOINED AS DEFENDANTS IN NEGLIGENCE ACTIONS? 

"MR. SHEA.  I SHOULD THINK THAT WHAT ORDINARILY HAPPENS IN THE CASE
OF AN ACCIDENT CAUSED BY A DRIVER FOR A BIG CORPORATION IS THAT SUIT IS
BROUGHT JOINTLY AGAINST THE TWO, AND USUALLY IT IS SATISFIED BY THE
CORPORATION, AND THEN ORDINARILY THE CORPORATION'S REMEDY AGAINST THE
DRIVER IS TO FIRE HIM IF HE IS NEGLIGENT TOO OFTEN.  ORDINARILY THE
CORPORATIONS COVER SUCH RISKS BY INSURANCE, WHICH IS PAID FOR BY THE
EMPLOYER, I THINK. 

"THE CHAIRMAN.  MR. SHEA, YOU ARE DISCUSSING AND DIRECTING YOUR
REMARKS TO THE MATTER WHERE, IF A PERSON IS INJURED AND FILES A CLAIM
AGAINST THE GOVERNMENT AND THE GOVERNMENT SATISFIES THAT CLAIM, THAT IS
THE END OF THE CLAIM AGAINST ANYBODY? 

"MR. SHEA.  THAT IS RIGHT. 

"THE CHAIRMAN.  WHAT IS THE ARRANGEMENT WHEN THE GOVERNMENT HAS AN
EMPLOYEE WHO IS GUILTY OF GROSS NEGLIGENCE AND INJURY RESULTS?  IS
THERE ANY REQUIREMENT THAT THAT EMPLOYEE SHOULD IN ANY WAY RESPOND TO
THE GOVERNMENT IF IT HAS TO PAY FOR THE INJURY, IN THE EVENT OF GROSS
NEGLIGENCE? 

"MR. SHEA.  NOT IF HE IS A GOVERNMENT EMPLOYEE.  UNDER THOSE
CIRCUMSTANCES, THE REMEDY IS TO FIRE THE EMPLOYEE. 

"MR. MCLAUGHLIN.  NO RIGHT OF SUBROGATION IS SET UP? 

"MR. SHEA.  NOT AGAINST THE EMPLOYEE." 

SEE HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 5373
AND H.R. 6463, 77TH CONG., 2D SESS., PP. 9-10.  SEE ALSO S. REP. NO.
1196, 77TH CONG., 2D SESS., P. 5. 
..END :









UNITED STATES V. BORDEN COMPANY 347 U.S. 514 


NO. 464.  ARGUED APRIL 27, 1954 - DECIDED MAY 17, 1954 - 111 F. SUPP.
562, AFFIRMED IN PART AND REMANDED. 


IN A CIVIL PROCEEDING BROUGHT BY THE UNITED STATES AGAINST SEVERAL
CHICAGO DAIRIES, THE COMPLAINT CHARGED A CONSPIRACY TO RESTRAIN AND
MONOPOLIZE THE SALE OF FLUID MILK IN THE CHICAGO AREA, IN VIOLATION OF
THE SHERMAN ACT, AND PRICE DISCRIMINATION IN VIOLATION OF THE CLAYTON
ACT.  THE DISTRICT COURT DISMISSED THE COMPLAINT HOLDING THAT, AS TO
THE ALLEGED SHERMAN ACT VIOLATIONS, THE EVIDENCE FAILED TO ESTABLISH
THE EXISTENCE OF A CONSPIRACY; AND THAT, THOUGH THERE WAS PROOF OF
PRICE DISCRIMINATION VIOLATIVE OF THE CLAYTON ACT BY CERTAIN OF THE
DEFENDANTS, A PRIOR DECREE OF THAT COURT IN A PRIVATE ANTITRUST SUIT BY
A COMPETITOR ENJOINED THE CONDUCT IN QUESTION AND MADE IT "USELESS" TO
AWARD THE GOVERNMENT AN INJUNCTION.  HELD: 

1.  RULINGS BY THE DISTRICT JUDGE THAT CERTAIN EVIDENCE OFFERED BY
THE GOVERNMENT WAS INADMISSIBLE DID NOT AFFECT THE SUBSTANTIAL RIGHTS
OF THE PARTIES WITHIN THE MEANING OF 28 U.S.C. SEC. 2111, SINCE IT DOES
NOT APPEAR THAT ADMISSION OF THE EVIDENCE IN QUESTION WOULD HAVE BEEN
SUFFICIENT TO CHANGE THE CONCLUSION THAT THE GOVERNMENT HAD NOT
ESTABLISHED A CASE UNDER THE SHERMAN ACT; AND ON THAT BASIS THE
JUDGMENT OF DISMISSAL AS TO THE SHERMAN ACT ALLEGATIONS IS AFFIRMED. 
PP. 516-517. 

2.  IN VIEW OF THE DIFFERENCE IN THE RESPECTIVE INTERESTS SOUGHT TO
BE VINDICATED BY THE GOVERNMENT AND BY PRIVATE LITIGANTS IN CLAYTON ACT
PROCEEDINGS, THE DISTRICT JUDGE ABUSED HIS DISCRETION IN REFUSING THE
GOVERNMENT INJUNCTIVE RELIEF AGAINST PRICE DISCRIMINATION VIOLATIVE OF
THE CLAYTON ACT SOLELY BECAUSE OF THE EXISTENCE OF A PRIOR DECREE
ENTERED IN A PRIVATE ACTION.  PP. 517-520. 

UNITED STATES V. BORDEN COMPANY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES INSTITUTED THIS CIVIL PROCEEDING AGAINST TEN CHICAGO
DAIRIES, (FN1) CHARGING CONSPIRACY TO RESTRAIN AND MONOPOLIZE THE SALE
OF FLUID MILK TO WHOLESALE CUSTOMERS AND OTHERS IN THE CHICAGO AREA, IN
VIOLATION OF THE SHERMAN ACT, AND PRICE DISCRIMINATION IN VIOLATION OF
THE CLAYTON ACT.  PRIOR TO TRIAL A CONSENT DECREE WAS ENTERED AGAINST
FIVE OF THE SMALLER DEFENDANT COMPANIES, ENJOINING CONTINUATION OF THE
CONDUCT CHARGED IN THE COMPLAINT.  AT THE CLOSE OF THE GOVERNMENT'S
CASE AGAINST THE REMAINING FIVE DEFENDANTS, (FN2) THE DISTRICT COURT
DISMISSED THE COMPLAINT IN ITS ENTIRETY.  IT HELD THAT, AS TO THE
ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT, THE EVIDENCE
FAILED TO ESTABLISH THE EXISTENCE OF A CONSPIRACY OR COMBINATION; AND
THAT, THOUGH THERE WAS PROOF OF PRICE DISCRIMINATION VIOLATIVE OF SEC.
2(A) OF THE CLAYTON ACT BY FOUR OF THE DEFENDANTS, (FN3) A PRIOR DECREE
IN A PRIVATE ANTITRUST ACTION BROUGHT BY A COMPETITOR DAIRY COMPANY
ENJOINED THE CONDUCT IN QUESTION AND MADE IT "USELESS" TO AWARD THE
GOVERNMENT AN INJUNCTION.  111 F. SUPP. 562.  THE GOVERNMENT THEN
APPEALED DIRECTLY TO THIS COURT UNDER 15 U.S.C. SEC. 29, AND WE NOTED
PROBABLE JURISDICTION, 346 U.S. 914. 

THREE OF THE FOUR QUESTIONS PRESENTED ON THIS APPEAL DEAL WITH
RULINGS BY THE DISTRICT JUDGE THAT CERTAIN EVIDENCE WAS INADMISSIBLE. 
(FN4)  THE GOVERNMENT DOES NOT CHALLENGE THE COURT'S CONCLUSION THAT ON
THE RECORD CONSPIRACY WAS NOT SHOWN, BUT IT INSISTS THAT ERROR IN THESE
RULINGS PRECLUDED ESTABLISHMENT OF THE CONSPIRACY.  AFTER HEARING
ARGUMENT AND CONSIDERING AS MUCH OF THE RECORD AS IS BEFORE US,
INCLUDING THE GOVERNMENT'S OFFERS OF PROOF, WE ARE OF THE OPINION THAT,
EVEN ASSUMING ERROR IN EACH OF THE CHALLENGED RULINGS, IT DOES NOT
APPEAR THAT ADMISSION OF THE EVIDENCE IN QUESTION WOULD HAVE BEEN
SUFFICIENT TO CHANGE THE CONCLUSION THAT THE GOVERNMENT HAD NOT
ESTABLISHED A CASE UNDER THE SHERMAN ACT; HENCE THE RULINGS CANNOT BE
SAID TO HAVE AFFECTED SUBSTANTIAL RIGHTS OF THE PARTIES WITHIN THE
MEANING OF 28 U.S.C. SEC. 2111.  (FN5)  SINCE ON THIS BASIS WE AFFIRM
THE JUDGMENT OF DISMISSAL AS TO THE SHERMAN ACT ALLEGATIONS, IT IS
UNNECESSARY TO DISCUSS THE PROPRIETY OR IMPROPRIETY OF THE SEVERAL
RULINGS. 

THE FOURTH QUESTION CHALLENGES THE BASIS OF THE DISTRICT COURT'S
REFUSAL TO GRANT THE GOVERNMENT INJUNCTIVE RELIEF AGAINST PRICE
DISCRIMINATION BY FOUR OF THE DEFENDANTS.  (FN6)  THE DISTRICT JUDGE
FOUND THAT GOVERNMENT EVIDENCE TENDED TO PROVE THAT THESE DEFENDANT
COMPANIES HAVE SOLD AT PRICES WHICH DISCRIMINATE BETWEEN PURCHASERS OF
MILK OF LIKE GRADE AND QUALITY.  THIS, HE SAID, WOULD GIVE DEFENDANTS
THE BURDEN OF ESTABLISHING THAT THE DISCRIMINATIONS FALL WITHIN
STATUTORY EXCEPTIONS, WERE IT NOT THAT UNDER A CONSENT DECREE ENTERED
AGAINST DEFENDANTS IN A PRIVATE SUIT IN 1952 BY ANOTHER JUDGE OF THE
SAME COURT, (FN7) THEY ALREADY ARE ENJOINED FROM PERFORMING ALL ACTS
SPECIFIED BY THE GOVERNMENT IN ITS PRAYER FOR RELIEF.  IN THE OPINION
OF THE DISTRICT JUDGE: 

"A DECREE OF THIS COURT ENTERED AT THE INSTANCE OF PRIVATE LITIGANT
IS A BINDING UPON A DEFENDANT AS A DECREE ENTERED AT THE INSTANCE OF
THE GOVERNMENT; AND A CONSENT DECREE, ENTERED BY ANY JUDGE OF THIS
COURT WITHOUT HEARING EVIDENCE, IS AS BINDING AS A DECREE ENTERED BY
ANOTHER JUDGE AFTER A PROTRACTED TRIAL.  I CONCLUDE, THEREFORE, THAT
EACH OF THE REMAINING DEFENDANTS IS NOW EFFECTIVELY ENJOINED BY THIS
COURT FROM PERFORMING ANY OF THE ACTS SET FORTH IN THE GOVERNMENT'S
PRAYER FOR INJUNCTIVE RELIEF, INSOFAR AS THE CLAYTON ACT IS CONCERNED. 

""AS A COURT OF EQUITY, I WILL NOT PERFORM A USELESS TASK.  THE
VIOLATIONS OF THE CLAYTON ACT DESCRIBED IN THE COMPLAINT AND SHOWN AT
THE TRIAL ARE, FOR THE MOST PART, OLD VIOLATIONS.  AND TO THIS COURT,
THE DEAN DECREE ASSURES, AS COMPLETELY AS ANY DECREE CAN ASSURE, THAT
THERE WILL BE NO NEW VIOLATIONS."  111 F. SUPP., AT 581. 

ACCORDINGLY THE COURT DISMISSED THAT PART OF THE COMPLAINT WHICH
ALLEGED VIOLATIONS OF SEC. 2(A) OF THE CLAYTON ACT.  THUS IT APPEARS
THAT THE GOVERNMENT WAS REFUSED AN INJUNCTION SOLELY BECAUSE OF THE
EXISTENCE OF THE PRIOR DECREE ENTERED AGAINST DEFENDANTS IN THE COURSE
OF A PRIVATE ACTION.  WE THINK THAT REFUSAL ON THIS BASIS CONSTITUTED
AN ABUSE OF DISCRETION. 

STATES DISTRICT ATTORNEYS, UNDER SUPERVISION OF THE ATTORNEY GENERAL,
WITH THE DUTY OF INSTITUTING EQUITY PROCEEDINGS TO PREVENT AND RESTRAIN
VIOLATIONS OF CERTAIN OF THE ANTITRUST LAWS, INCLUDING PRICE
DISCRIMINATION.  UNDER SEC. 16 OF THE ACT, 15 U.S.C. SEC. 26, A PRIVATE
PLAINTIFF MAY OBTAIN INJUNCTIVE RELIEF AGAINST SUCH VIOLATIONS ONLY ON
A SHOWING OF "THREATENED LOSS OR DAMAGE"; AND THIS MUST BE OF A SORT
PERSONAL TO THE PLAINTIFF, BEEGLE V. THOMSON, 138 F.2D 875, 881
(1943).  THE PRIVATE-INJUNCTION ACTION, LIKE THE TREBLE-DAMAGE ACTION
UNDER SEC. 4 OF THE ACT, SUPPLEMENTS GOVERNMENT ENFORCEMENT OF THE
ANTITRUST LAWS; BUT IT IS THE ATTORNEY GENERAL AND THE UNITED STATES
DISTRICT ATTORNEYS WHO ARE PRIMARILY CHARGED BY CONGRESS WITH THE DUTY
OF PROTECTING THE PUBLIC INTEREST UNDER THESE LAWS.  THE GOVERNMENT
SEEKS ITS INJUNCTIVE REMEDIES ON BEHALF OF THE GENERAL PUBLIC; THE
PRIVATE PLAINTIFF, THROUGH HIS REMEDY IS MADE AVAILABLE PURSUANT TO
PUBLIC POLICY AS DETERMINED BY CONGRESS, MAY BE EXPECTED TO EXERCISE IT
ONLY WHEN HIS PERSONAL INTEREST WILL BE SERVED.  THESE PRIVATE AND
PUBLIC ACTIONS WERE DESIGNED TO BE CUMULATIVE, NOT MUTUALLY EXCLUSIVE. 
S. REP. NO. 698, 63D CONG., 2D SESS. 42; CF. FEDERAL TRADE COMM'N V.
CEMENT INSTITUTE, 333 U.S. 683, 694-695 (1948).  "  ...  THE SCHEME OF
THE STATUTE IS SHARPLY TO DISTINGUISH BETWEEN GOVERNMENT SUITS, EITHER
CRIMINAL OR CIVIL, AND PRIVATE SUITS FOR INJUNCTIVE RELIEF OR FOR
TREBLE DAMAGES.  DIFFERENT POLICY CONSIDERATIONS GOVERN EACH OF THESE. 
THEY MAY PROCEED SIMULTANEOUSLY OR IN DISREGARD OF EACH OTHER."  UNITED
STATES V. BENDIX HOME APPLIANCES, 10 F.R.D. 73, 77 (S.D.N.Y. 1949).  IN
SHORT, THE GOVERNMENT'S RIGHT AND DUTY TO SEEK AN INJUNCTION TO PROTECT
THE PUBLIC INTEREST EXIST WITHOUT REGARD TO ANY PRIVATE SUIT OR
DECREE. 

TO HOLD THAT A PRIVATE DECREE RENDERS UNNECESSARY AN INJUNCTION TO
WHICH THE GOVERNMENT IS OTHERWISE ENTITLED IS TO IGNORE THE PRIME
OBJECT OF CIVIL DECREES SECURED BY THE GOVERNMENT - THE CONTINUING
PROTECTION OF THE PUBLIC, BY MEANS OF CONTEMPT PROCEEDINGS, AGAINST A
RECURRENCE OF ANTITRUST VIOLATIONS.  SHOULD A PRIVATE DECREE BE
VIOLATED, THE GOVERNMENT WOULD HAVE NO RIGHT TO BRING CONTEMPT
PROCEEDINGS TO ENFORCE COMPLIANCE; IT MIGHT SUCCEED IN INTERVENING IN
THE PRIVATE ACTION BUT ONLY AT THE COURT'S DISCRETION.  THE PRIVATE
PLAINTIFF MIGHT FIND IT TO HIS ADVANTAGE TO REFRAIN FROM SEEKING
ENFORCEMENT OF A VIOLATED DECREE; FOR EXAMPLE, WHERE THE DEFENDANT'S
VIOLATION OPERATED PRIMARILY AGAINST PLAINTIFF'S COMPETITORS.  OR THE
PLAINTIFF MIGHT AGREE TO MODIFICATION OF THE DECREE, AGAIN LOOKING ONLY
TO HIS OWN INTEREST.  IN ANY OF THESE EVENTS IT IS LIKELY THAT THE
PUBLIC INTEREST WOULD NOT BE ADEQUATELY PROTECTED BY THE MERE EXISTENCE
OF THE PRIVATE DECREE.  IT IS ALSO CLEAR THAT CONGRESS DID NOT INTEND
THAT THE EFFORTS OF A PRIVATE LITIGANT SHOULD SUPERSEDE THE DUTIES OF
THE DEPARTMENT OF JUSTICE IN POLICING AN INDUSTRY.  YET THE EFFECT OF
THE DECISION BELOW IS TO PLACE ON A PRIVATE LITIGANT THE BURDEN OF
POLICING A MAJOR PART OF THE MILK INDUSTRY IN CHICAGO, A TASK BEYOND
ITS ABILITY, EVEN ASSUMING IT TO BE CONSISTENTLY SO INCLINED. 

WE AGREE WITH APPELLEES THAT THE STATUTE CONFERS ON THE GOVERNMENT NO
ABSOLUTE RIGHT TO AN INJUNCTION UPON A SHOWING OF PAST VIOLATION OF THE
ANTITRUST LAWS BY DEFENDANTS.  AS WE SAID IN UNITED STATES V. W.T.
GRANT CO., 345 U.S. 629, 633 (1953): 

"  ...  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." 

THE GOVERNMENT CONTENDS THAT IT HAS "AN INDEPENDENT RIGHT TO RELIEF
AGAINST VIOLATIONS OF THE CLAYTON ACT, WIHTOUT REGARD TO WHETHER SUCH
VIOLATIONS PREVIOUSLY HAVE BEEN ENJOINED BY A DECREE IN A PRIVATE
ANTITRUST SUIT."  BUT WE CANNOT SAY THAT THE EXISTENCE OF THE PRIVATE
DECREE WARRANTS NO CONSIDERATION BY THE CHANCELLOR IN ASSESSING THE
LIKELIHOOD OF RECURRING ILLEGAL ACTIVITY.  WE HOLD ONLY THAT, IN VIEW
OF THE DIFFERENCE IN THE RESPECTIVE INTERESTS SOUGHT TO BE VINDICATED
BY THE GOVERNMENT AND THE PRIVATE LITIGANT, THE DISTRICT JUDGE ABUSED
HIS DISCRETION IN REFUSING THE GOVERNMENT AN INJUNCTION SOLELY BECAUSE
OF THE EXISTENCE OF THE PRIVATE DECREE. 

THE JUDGMENT OF DISMISSAL AS TO THE SHERMAN ACT ALLEGATIONS IS
AFFIRMED; AS TO THE CLAYTON ACT ALLEGATIONS THE CASE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER CONSIDERATION, AND SUCH FURTHER PROCEEDINGS
AS MAY BE NECESSARY, IN ACCORDANCE WITH THIS OPINION. 

FN1  THE BORDEN COMPANY, BOWMAN DAIRY COMPANY, BELMONT DAIRY COMPANY,
RIDGEVIEW FARMS DAIRY, BELOIT DAIRY COMPANY, CAPITOL DAIRY COMPANY,
AMERICAN PROCESSING AND SALES COMPANY, HUNDING DAIRY COMPANY,
MEADOWMOOR DAIRIES AND WESTERN UNITED DAIRY COMPANY. 

FN2  BORDEN, BOWMAN, BELMONT, RIDGEVIEW AND BELOIT. 

FN3  BORDEN, BOWMAN, BELMONT AND RIDGEVIEW. 

FN4  THE TRIAL COURT REFUSED TO ALLOW THE GOVERNMENT TO USE FOR
IMPEACHMENT OF A HOSTILE WITNESS A DEPOSITION TAKEN IN ANOTHER CASE; TO
INTRODUCE IN EVIDENCE CERTAIN TAPE RECORDINGS MADE FOR USE IN THE PRIOR
CASE; AND TO INTRODUCE TESTIMONY AS TO A CONVERSATION WITH A DECEASED
AGENT OF ONE OF THE DEFENDANTS. 

FN5  "ON THE HEARING OF ANY APPEAL OR WRIT OF CERTIORARI IN ANY CASE,
THE COURT SHALL GIVE JUDGMENT AFTER AN EXAMINATION OF THE RECORD
WITHOUT REGARD TO ERRORS OR DEFECTS WHICH DO NOT AFFECT THE SUBSTANTIAL
RIGHTS OF THE PARTIES." 

FED. RULES CIV. PROC., 61:  "HARMLESS ERROR.  NO ERROR IN EITHER THE
ADMISSION OR THE EXCLUSION OF EVIDENCE AND NO ERROR OR DEFECT IN ANY
RULING OR ORDER OR IN ANYTHING DONE OR OMITTED BY THE COURT OR BY ANY
OF THE PARTIES IS GROUND FOR GRANTING A NEW TRIAL OR FOR SETTING ASIDE
A VERDICT OR FOR VACATING, MODIFYING, OR OTHERWISE DISTURBING A
JUDGMENT OR ORDER, UNLESS REFUSAL TO TAKE SUCH ACTION APPEARS TO THE
COURT INCONSISTENT WITH SUBSTANTIAL JUSTICE.  THE COURT AT EVERY STAGE
OF THE PROCEEDING MUST DISREGARD ANY ERROR OR DEFECT IN THE PROCEEDING
WHICH DOES NOT AFFECT THE SUBSTANTIAL RIGHTS OF THE PARTIES." 

FN6  SEE NOTE 3, SUPRA.  SINCE THE GOVERNMENT DOES NOT QUESTION THE
CORRECTNESS OF THE JUDGMENT OF DISMISSAL OF ITS CLAIM UNDER SEC. 2(A)
OF THE CLAYTON ACT AGAINST BELOIT, THE FIFTH DEFENDANT, IT IS NOT
BEFORE US. 

FN7  DEAN MILK CO. V. AMERICAN PROCESSING & SALES CO., U.S.D.C.N.D.
ILL. E.D., NO. 49 C 1159, DEC. 3, 1952. 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :



















UNITED SHOE MACHINERY CORP. V. U.S. 347 U.S. 521 


NO. 394.  ARGUED APRIL 26-27, 1954 - DECIDED MAY 17, 1954 - 110 F. SUPP.
295, AFFIRMED. 


THE CASE HAVING BEEN FULLY ARGUED AND THE COURT BEING SATISFIED THAT
THE FINDINGS OF THE DISTRICT COURT ARE JUSTIFIED BY THE EVIDENCE AND
SUPPORT THE DECREE, THE JUDGMENT IS AFFIRMED. 

UNITED SHOE MACHINERY CORP. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

PER CURIAM. 

THE CASE HAVING BEEN FULLY ARGUED AND THE COURT BEING SATISFIED THAT
THE FINDINGS ARE JUSTIFIED BY THE EVIDENCE AND SUPPORT THE DECREE, THE
JUDGMENT IS AFFIRMED. 

MR. JUSTICE JACKSON AND MR. JUSTICE CLARK DID NOT PARTICIPATE IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :







HERNANDEZ V. TEXAS 347 U.S. 475 


NO. 406.  ARGUED JANUARY 11, 1954 - DECIDED MAY 3, 1954 - TEX. CR. R. -
, 251 S.W.2D 531, REVERSED. 


THE SYSTEMATIC EXCLUSION OF PERSONS OF MEXICAN DESCENT FROM SERVICE AS
JURY COMMISSIONERS, GRANT JURORS, AND PETIT JURORS IN THE TEXAS COUNTY
IN WHICH PETITIONER WAS INDICTED AND TRIED FOR MURDER, ALTHOUGH THERE
WERE A SUBSTANTIAL NUMBER OF SUCH PERSONS IN THE COUNTY FULLY QUALIFIED
TO SERVE, DEPRIVED PETITIONER, A PERSON OF MEXICAN DESCENT, OF THE
EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT,
AND HIS CONVICTION IN A STATE COURT IS REVERSED.  PP. 476-482. 

(A)  THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION OF THE LAWS IS
NOT DIRECTED SOLELY AGAINST DISCRIMINATION BETWEEN WHITES AND NEGROES. 
PP. 477-478. 

(B)  WHEN THE EXISTENCE OF A DISTINCT CLASS IS DEMONSTRATED, AND IT
IS SHOWN THAT THE LAWS, AS WRITTEN OR AS APPLIED, SINGLE OUT THAT CLASS
FOR DIFFERENT TREATMENT NOT BASED ON SOME REASONABLE CLASSIFICATION,
THE GUARANTEES OF THE CONSTITUTION HAVE BEEN VIOLATED.  P. 478. 

(C)  THE EXCLUSION OF OTHERWISE ELIGIBLE PERSONS FROM JURY SERVICE
SOLELY BECAUSE OF THEIR ANCESTRY OR NATIONAL ORIGIN IS DISCRIMINATION
PROHIBITED BY THE FOURTEENTH AMENDMENT.  PP. 478-479. 

(D)  THE EVIDENCE IN THIS CASE WAS SUFFICIENT TO PROVE THAT, IN THE
COUNTY IN QUESTION, PERSONS OF MEXICAN DESCENT CONSTITUTE A SEPARATE
CLASS, DISTINCT FROM "WHITES."  PP. 479-480. 

(E)  A PRIMA FACIE CASE OF DENIAL OF THE EQUAL PROTECTION OF THE LAWS
WAS ESTABLISHED IN THIS CASE BY EVIDENCE THAT THERE WERE IN THE COUNTY
A SUBSTANTIAL NUMBER OF PERSONS OF MEXICAN DESCENT WITH THE
QUALIFICATIONS REQUIRED FOR JURY SERVICE BUT THAT NONE OF THEM HAD
SERVED ON A JURY COMMISSION, GRAND JURY OR PETIT JURY FOR 25 YEARS. 
PP. 480-481. 

(F)  THE TESTIMONY OF FIVE JURY COMMISSIONERS THAT THEY HAD NOT
DISCRIMINATED AGAINST PERSONS OF MEXICAN DESCENT IN SELECTING JURORS,
AND THAT THEIR ONLY OBJECTIVE HAD BEEN TO SELECT THOSE WHOM THEY
THOUGHT BEST QUALIFIED, WAS NOT ENOUGH TO OVERCOME PETITIONER'S PRIMA
FACIE CASE OF DENIAL OF EQUAL PROTECTION OF THE LAWS.  PP. 481-482. 

(G)  PETITIONER HAD THE CONSTITUTIONAL RIGHT TO BE INDICTED AND TRIED
BY JURIES FROM WHICH ALL MEMBERS OF HIS CLASS WERE NOT SYSTEMATICALLY
EXCLUDED.  P. 482. 

HERNANDEZ V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, PETE HERNANDEZ, WAS INDICTED FOR THE MURDER OF ONE
JOE ESPINOSA BY A GRAND JURY IN JACKSON COUNTY, TEXAS.  HE WAS
CONVICTED AND SENTENCED TO LIFE IMPRISONMENT.  THE TEXAS COURT OF
CRIMINAL APPEALS AFFIRMED THE JUDGMENT OF THE TRIAL COURT.  - TEX. CR.
R. - , 251 S.W.2D 531.  PRIOR TO THE TRIAL, THE PETITIONER, BY HIS
COUNSEL, OFFERED TIMELY MOTIONS TO QUASH THE INDICTMENT AND THE JURY
PANEL.  HE ALLEGED THAT PERSONS OF MEXICAN DESCENT WERE SYSTEMATICALLY
EXCLUDED FROM SERVICE AS JURY COMMISSIONERS, (FN1) GRAND JURORS, AND
PETIT JURORS, ALTHOUGH THERE WERE SUCH PERSONS FULLY QUALIFIED TO SERVE
RESIDING IN JACKSON COUNTY.  THE PETITIONER ASSERTED THAT EXCLUSION OF
THIS CLASS DEPRIVED HIM, AS A MEMBER OF THE CLASS, OF THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION.  AFTER A HEARING, THE TRIAL COURT DENIED THE MOTIONS.  AT
THE TRIAL, THE MOTIONS WERE RENEWED, FURTHER EVIDENCE TAKEN, AND THE
MOTIONS AGAIN DENIED.  AN ALLEGATION THAT THE TRIAL COURT ERRED IN
DENYING THE MOTIONS WAS THE SOLE BASIS OF PETITIONER'S APPEAL.  IN
AFFIRMING THE JUDGMENT OF THE TRIAL COURT, THE TEXAS COURT OF CRIMINAL
APPEALS CONSIDERED AND PASSED UPON THE SUBSTANTIAL FEDERAL QUESTION
RAISED BY THE PETITIONER.  WE GRANTED A WRIT OF CERTIORARI TO REVIEW
THAT DECISION.  346 U.S. 811. 

IN NUMEROUS DECISIONS, THIS COURT HAS HELD THAT IT IS A DENIAL OF THE
EQUAL PROTECTION OF THE LAWS TO TRY A DEFENDANT OF A PARTICULAR RACE OR
COLOR UNDER AN INDICTMENT ISSUED BY A GRAND JURY, OR BEFORE A PETIT
JURY, FROM WHICH ALL PERSONS OF HIS RACE OR COLOR HAVE, SOLELY BECAUSE
OF THAT RACE OR COLOR, BEEN EXCLUDED BY THE STATE, WHETHER ACTING
THROUGH ITS LEGISLATURE, ITS COURTS, OR ITS EXECUTIVE OF ADMINISTRATIVE
OFFICERS.  (FN2)  ALTHOUGH THE COURT HAS HAD LITTLE OCCASION TO RULE ON
THE QUESTION DIRECTLY, IT HAS BEEN RECOGNIZED SINCE STRAUDER V. WEST
VIRGINIA, 100 U.S. 303, THAT THE EXCLUSION OF A CLASS OF PERSONS FROM
JURY SERVICE ON GROUNDS OTHER THAN RACE OR COLOR MAY ALSO DEPRIVE A
DEFENDANT WHO IS A MEMBER OF THAT CLASS OF THE CONSTITUTIONAL GUARANTEE
OF EQUAL PROTECTION OF THE LAWS.  (FN3)  THE STATE OF TEXAS WOULD HAVE
US HOLD THAT THERE ARE ONLY TWO CLASSES - WHITE AND NEGRO - WITHIN THE
CONTEMPLATION OF THE FOURTEENTH AMENDMENT.  THE DECISIONS OF THIS COURT
DO NOT SUPPORT THAT VIEW.  (FN4)  AND, EXCEPT WHERE THE QUESTION
PRESENTED INVOLVES THE EXCLUSION OF PERSONS OF MEXICAN DESCENT FROM
JURIES, (FN5) TEXAS COURTS HAVE TAKEN A BROADER VIEW OF THE SCOPE OF
THE EQUAL PROTECTION CLAUSE.  (FN6) 

THROUGHOUT OUR HISTORY DIFFERENCES IN RACE AND COLOR HAVE DEFINED
EASILY IDENTIFIABLE GROUPS WHICH HAVE AT TIMES REQUIRED THE AID OF THE
COURTS IN SECURING EQUAL TREATMENT UNDER THE LAWS.  BUT COMMUNITY
PREJUDICES ARE NOT STATIC, AND FROM TIME TO TIME OTHER DIFFERENCES FROM
THE COMMUNITY NORM MAY DEFINE OTHER GROUPS WHICH NEED THE SAME
PROTECTION.  WHETHER SUCH A GROUP EXISTS WITHIN A COMMUNITY IS A
QUESTION OF FACT.  WHEN THE EXISTENCE OF A DISTINCT CLASS IS
DEMONSTRATED, AND IT IS FURTHER SHOWN THAT THE LAWS, AS WRITTEN OR AS
APPLIED, SINGLE OUT THAT CLASS FOR DIFFERENT TREATMENT NOT BASED ON
SOME REASONABLE CLASSIFICATION, THE GUARANTEES OF THE CONSTITUTION HAVE
BEEN VIOLATED.  THE FOURTEENTH AMENDMENT IS NOT DIRECTED SOLELY AGAINST
DISCRIMINATION DUE TO A "TWO-CLASS THEORY" - THAT IS, BASED UPON
DIFFERENCES BETWEEN "WHITE" AND NEGRO. 

AS THE PETITIONER ACKNOWLEDGES, THE TEXAS SYSTEM OF SELECTING GRAND
AND PETIT JURORS BY THE USE OF JURY COMMISSIONS IS FAIR ON ITS FACE AND
CAPABLE OF BEING UTILIZED WITHOUT DISCRIMINATION.  (FN7) BUT AS THIS
COURT HAS HELD, THE SYSTEM IS SUSCEPTIBLE TO ABUSE AND CAN BE EMPLOYED
IN A DISCRIMINATORY MANNER.  (FN8)  THE EXCLUSION OF OTHERWISE ELIGIBLE
PERSONS FROM JURY SERVICE SOLELY BECAUSE OF THEIR ANCESTRY OR NATIONAL
ORIGIN IS DISCRIMINATION PROHIBITED BY THE FOURTEENTH AMENDMENT.  THE
TEXAS STATUTE MAKES NO SUCH DISCRIMINATION, BUT THE PETITIONER ALLEGES
THAT THOSE ADMINISTERING THE LAW DO. 

THE PETITIONER'S INITIAL BURDEN IN SUBSTANTIATING HIS CHARGE OF GROUP
DISCRIMINATION WAS TO PROVE THAT PERSONS OF MEXICAN DESCENT CONSTITUTE
A SEPARATE CLASS IN JACKSON COUNTY, DISTINCT FROM "WHITES."  (FN9)  ONE
METHOD BY WHICH THIS MAY BE DEMONSTRATED IS BY SHOWING THE ATTITUDE OF
THE COMMUNITY.  HERE THE TESTIMONY OF RESPONSIBLE OFFICIALS AND
CITIZENS CONTAINED THE ADMISSION THAT RESIDENTS OF THE COMMUNITY
DISTINGUISHED BETWEEN "WHITE" AND "MEXICAN."  THE PARTICIPATION OF
PERSONS OF MEXICAN DESCENT IN BUSINESS AND COMMUNITY GROUPS WAS SHOWN
TO BE SLIGHT.  UNTIL VERY RECENT TIMES, CHILDREN OF MEXICAN DESCENT
WERE REQUIRED TO ATTEND A SEGREGATED SCHOOL FOR THE FIRST FOUR GRADES. 
(FN10)  AT LEAST ONE RESTAURANT IN TOWN PROMINENTLY DISPLAYED A SIGN
ANNOUNCING "NO MEXICANS SERVED."  ON THE COURTHOUSE GROUNDS AT THE TIME
OF THE HEARING, THERE WERE TWO MEN'S TOILETS, ONE UNMARKED, AND THE
OTHER MARKED "COLORED MEN" AND "HOMBRES AQUI" ("MEN HERE").  NO
SUBSTANTIAL EVIDENCE WAS OFFERED TO REBUT THE LOGICAL INFERENCE TO BE
DRAWN FROM THESE FACTS, AND IT MUST BE CONCLUDED THAT PETITIONER
SUCCEEDED IN HIS PROOF. 

HAVING ESTABLISHED THE EXISTENCE OF A CLASS, PETITIONER WAS THEN
CHARGED WITH THE BURDEN OF PROVING DISCRIMINATION.  TO DO SO, HE RELIED
ON THE PATTERN OF PROOF ESTABLISHED BY NORRIS V. ALABAMA, 294 U.S.
587.  IN THAT CASE, PROOF THAT NEGROES CONSTITUTED A SUBSTANTIAL
SEGMENT OF THE POPULATION OF THE JURISDICTION, THAT SOME NEGROES WERE
QUALIFIED TO SERVE AS JURORS, AND THAT NONE HAD BEEN CALLED FOR JURY
SERVICE OVER AN EXTENDED PERIOD OF TIME, WAS HELD TO CONSTITUTE PRIMA
FACIE PROOF OF THE SYSTEMATIC EXCLUSION OF NEGROES FROM JURY SERVICE. 
THIS HOLDING, SOMETIMES CALLED THE "RULE OF EXCLUSION," HAS BEEN
APPLIED IN OTHER CASES, (FN11) AND IT IS AVAILABLE IN SUPPLYING PROOF
OF DISCRIMINATION AGAINST ANY DELINEATED CLASS. 

THE PETITIONER ESTABLISHED THAT 14% OF THE POPULATION OF JACKSON
COUNTY WERE PERSONS WITH MEXICAN OR LATIN-AMERICAN SURNAMES, AND THAT
11% OF THE MALES OVER 21 BORE SUCH NAMES.  (FN12)  THE COUNTY TAX
ASSESSOR TESTIFIED THAT 6 OR 7 PERCENT OF THE FREEHOLDERS ON THE TAX
ROLLS OF THE COUNTY WERE PERSONS OF MEXICAN DESCENT.  THE STATE OF
TEXAS STIPULATED THAT "FOR THE LAST TWENTY-FIVE YEARS THERE IS NO
RECORD OF ANY PERSON WITH A MEXICAN OR LATIN AMERICAN NAME HAVING
SERVED ON A JURY COMMISSION, GRAND JURY OR PETIT JURY IN JACKSON
COUNTY."  (FN13)  THE PARTIES ALSO STIPULATED THAT "THERE ARE SOME MALE
PERSONS OF MEXICAN OR LATIN AMERICAN DESCENT IN JACKSON COUNTY WHO, BY
VIRTUE OF BEING CITIZENS, HOUSEHOLDERS, OR FREEHOLDERS, AND HAVING ALL
OTHER LEGAL PREREQUISITES TO JURY SERVICE, ARE ELIGIBLE TO SERVE AS
MEMBERS OF A JURY COMMISSION, GRAND JURY AND/OR PETIT JURY."  (FN14) 

THE PETITIONER MET THE BURDEN OF PROOF IMPOSED IN NORRIS V. ALABAMA,
SUPRA.  TO REBUT THE STRONG PRIMA FACIE CASE OF THE DENIAL OF THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE CONSTITUTION THUS ESTABLISHED,
THE STATE OFFERED THE TESTIMONY OF FIVE JURY COMMISSIONERS THAT THEY
HAD NOT DISCRIMINATED AGAINST PERSONS OF MEXICAN OR LATIN-AMERICAN
DESCENT IN SELECTING JURORS.  THEY STATED THAT THEIR ONLY OBJECTIVE HAD
BEEN TO SELECT THOSE WHOM THEY THOUGHT WERE BEST QUALIFIED.  THIS
TESTIMONY IS NOT ENOUGH TO OVERCOME THE PETITIONER'S CASE.  AS THE
COURT SAID IN NORRIS V. ALABAMA: 

"THAT SHOWING AS TO THE LONG-CONTINUED EXCLUSION OF NEGROES FROM JURY
SERVICE, AND AS TO THE MANY NEGROES QUALIFIED FOR THAT SERVICE, COULD
NOT BE MET BY MERE GENERALITIES.  IF, IN THE PRESENCE OF SUCH TESTIMONY
AS DEFENDANT ADDUCED, THE MERE GENERAL ASSERTIONS BY OFFICIALS OF THEIR
PERFORMANCE OF DUTY WERE TO BE ACCEPTED AS AN ADEQUATE JUSTIFICATION
FOR THE COMPLETE EXCLUSION OF NEGROES FROM JURY SERVICE, THE
CONSTITUTIONAL PROVISION  ...  WOULD BE BUT A VAIN AND ILLUSORY
REQUIREMENT."  (FN15) 

THE SAME REASONING IS APPLICABLE TO THESE FACTS. 

CIRCUMSTANCES OR CHANCE MAY WELL DICTATE THAT NO PERSONS IN A CERTAIN
CLASS WILL SERVE ON A PARTICULAR JURY OR DURING SOME PARTICULAR
PERIOD.  BUT IT TAXES OUR CREDULITY TO SAY THAT MERE CHANCE RESULTED IN
THERE BEING NO MEMBERS OF THIS CLASS AMONG THE OVER SIX THOUSAND JURORS
CALLED IN THE PAST 25 YEARS.  THE RESULT BESPEAKS DISCRIMINATION,
WHETHER OR NOT IT WAS A CONSCIOUS DECISION ON THE PART OF ANY
INDIVIDUAL JURY COMMISSIONER.  THE JUDGMENT OF CONVICTION MUST BE
REVERSED. 

TO SAY THAT THIS DECISION REVIVES THE REJECTED CONTENTION THAT THE
FOURTEENTH AMENDMENT REQUIRES PROPORTIONAL REPRESENTATION OF ALL THE
COMPONENT ETHNIC GROUPS OF THE COMMUNITY ON EVERY JURY (FN16) IGNORES
THE FACTS.  THE PETITIONER DID NOT SEEK PROPORTIONAL REPRESENTATION,
NOR DID HE CLAIM A RIGHT TO HAVE PERSONS OF MEXICAN DESCENT SIT ON THE
PARTICULAR JURIES WHICH HE FACED.  (FN17)  HIS ONLY CLAIM IS THE RIGHT
TO BE INDICTED AND TRIED BY JURIES FROM WHICH ALL MEMBERS OF HIS CLASS
ARE NOT SYSTEMATICALLY EXCLUDED - JURIES SELECTED FROM AMONG ALL
QUALIFIED PERSONS REGARDLESS OF NATIONAL ORIGIN OR DESCENT.  TO THIS
MUCH, HE IS ENTITLED BY THE CONSTITUTION.  REVERSED. 

FN1  TEXAS LAW PROVIDES THAT AT EACH TERM OF COURT, THE JUDGE SHALL
APPOINT THREE TO FIVE JURY COMMISSIONERS.  THE JUDGE INSTRUCTS THESE
COMMISSIONERS AS TO THEIR DUTIES.  AFTER TAKING AN OATH THAT THEY WILL
NOT KNOWINGLY SELECT A GRAND JUROR THEY BELIEVE UNFIT OR UNQUALIFIED,
THE COMMISSIONERS RETIRE TO A ROOM IN THE COURTHOUSE WHERE THEY SELECT
FROM THE COUNTY ASSESSMENT ROLL THE NAMES OF 16 GRAND JURORS FROM
DIFFERENT PARTS OF THE COUNTY.  THESE NAMES ARE PLACED IN A SEALED
ENVELOPE AND DELIVERED TO THE CLERK.  THIRTY DAYS BEFORE COURT MEETS,
THE CLERK DELIVERS A COPY OF THE LIST TO THE SHERIFF WHO SUMMONS THE
JURORS.  VERNON'S TEX. CODE CRIM. PROC., 1948, ARTS. 333-350. 

THE GENERAL JURY PANEL IS ALSO SELECTED BY THE JURY COMMISSION. 
VERNON'S TEX. REV. CIV.  STAT., 1948, ART. 2107.  IN CAPITAL CASES, A
SPECIAL VENIRE MAY BE SELECTED FROM THE LIST FURNISHED BY THE
COMMISSIONERS.  VERNON'S TEX. CODE CRIM. PROC., 1948, ART. 592. 

FN2  SEE CARTER V. TEXAS, 177 U.S. 442, 447. 

FN3  "NOR IF A LAW SHOULD BE PASSED EXCLUDING ALL NATURALIZED CELTIC
IRISHMEN (FROM JURY SERVICE), WOULD THERE BE ANY DOUBT OF ITS
INCONSISTENCY WITH THE SPIRIT OF THE AMENDMENT."  100 U.S., AT 308. 
CF. AMERICAN SUGAR REFINING CO. V. LOUISIANA, 179 U.S. 89, 92. 

FN4  SEE TRUAX V. RAICH, 239 U.S. 33; TAKAHASHI V. FISH & GAME
COMMISSION, 334 U.S. 410.  CF. HIRABAYASHI V. UNITED STATES, 320 U.S.
81, 100:  "DISTINCTIONS BETWEEN CITIZENS SOLELY BECAUSE OF THEIR
ANCESTRY ARE BY THEIR VERY NATURE ODIOUS TO A FREE PEOPLE WHOSE
INSTITUTIONS ARE FOUNDED UPON THE DOCTRINE OF EQUALITY." 

FN5  SANCHEZ V. STATE, 147 TEX. CR. R. 436, 181 S.W.2D 87; SALAZAR V.
STATE, 149 TEX.  CR. R. 260, 193 S.W.2D 211; SANCHEZ V. STATE, 243
S.W.2D 700. 

FN6  IN JUAREZ V. STATE, 102 TEX. CR. R. 297, 277 S.W. 1091, THE
TEXAS COURT HELD THAT THE SYSTEMATIC EXCLUSION OF ROMAN CATHOLICS FROM
JURIES WAS BARRED BY THE FOURTEENTH AMENDMENT.  IN CLIFTON V. PUENTE,
218 S.W.2D 272, THE TEXAS COURT RULED THAT RESTRICTIVE COVENANTS
PROHIBITING THE SALE OF LAND TO PERSONS OF MEXICAN DESCENT WERE
UNENFORCEABLE. 

FN7  SMITH V. TEXAS, 311 U.S. 128, 130. 

FN8  SMITH V. TEXAS, SUPRA, NOTE 7; HILL V. TEXAS, 316 U.S. 400;
CASSELL V. TEXAS, 339 U.S. 282; ROSS V. TEXAS, 341 U.S. 918. 

FN9  WE DO NOT HAVE BEFORE US THE QUESTION WHETHER OR NOT THE COURT
MIGHT TAKE JUDICIAL NOTICE THAT PERSONS OF MEXICAN DESCENT ARE THERE
CONSIDERED AS A SEPARATE CLASS.  SEE MARDEN, MINORITIES IN AMERICAN
SOCIETY; MCDONAGH & RICHARDS, ETHNIC RELATIONS IN THE UNITED STATES. 

FN10  THE REASON GIVEN BY THE SCHOOL SUPERINTENDENT FOR THIS
SEGREGATION WAS THAT THESE CHILDREN NEEDED SPECIAL HELP IN LEARNING
ENGLISH.  IN THIS SPECIAL SCHOOL, HOWEVER, EACH TEACHER TAUGHT TWO
GRADES, WHILE IN THE REGULAR SCHOOL EACH TAUGHT ONLY ONE IN MOST
INSTANCES.  MOST OF THE CHILDREN OF MEXICAN DESCENT LEFT SCHOOL BY THE
FIFTH OR SIXTH GRADE. 

FN11  SEE NOTE 8, SUPRA. 

FN12  THE 1950 CENSUS REPORT SHOWS THAT OF THE 12,916 RESIDENTS OF
JACKSON COUNTY, 1,865, OR ABOUT 14%, HAD MEXICAN OR LATIN-AMERICAN
SURNAMES.  U.S. CENSUS OF POPULATION, 1950, VOL. II, PT. 43, P. 180;
ID., VOL. IV, PT. 3, C. C, P. 45.  OF THESE 1,865, 1,738 WERE NATIVE
BORN AMERICAN CITIZENS AND 65 WERE NATURALIZED CITIZENS.  ID., VOL. IV,
PT. 3, C. C, P. 45.  OF THE 3,754 MALES OVER 21 YEARS OF AGE IN THE
COUNTY, 408, OR ABOUT 11%, HAD SPANISH SURNAMES.  ID., VOL. II, PT. 43,
P. 180; ID., VOL. IV, PT. 3, C. C, P. 67.  THE STATE CHALLENGES ANY
RELIANCE ON NAMES AS SHOWING THE DESCENT OF PERSONS IN THE COUNTY. 
HOWEVER, JUST AS PERSONS OF A DIFFERENT RACE ARE DISTINGUISHED BY
COLOR, THESE SPANISH NAMES PROVIDE READY IDENTIFICATION OF THE MEMBERS
OF THIS CLASS.  IN SELECTING JURORS, THE JURY COMMISSIONERS WORK FROM A
LIST OF NAMES. 

FN13  R. 34.    FN14  R. 55.  THE PARTIES ALSO STIPULATED THAT THERE
WERE NO PERSONS OF MEXICAN OR LATIN-AMERICAN DESCENT ON THE LIST OF
TALESMEN.  R. 83.  EACH ITEM OF EACH STIPULATION WAS AMPLY SUPPORTED BY
THE TESTIMONY ADDUCED AT THE HEARING. 

FN15  294 U.S., AT 598. 

FN16  SEE AKINS V. TEXAS, 325 U.S. 398, 403; CASSELL V. TEXAS, 339
U.S. 282, 286-287. 

FN17  SEE AKINS V. TEXAS, SUPRA, NOTE 16, AT 403. 
..END :







BARSKY V. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK
347 U.S. 442 


NO. 69.  ARGUED JANUARY 4, 1954 - DECIDED APRIL 26, 1954 - 305 N.Y. 89,
691, 111 N.E.2D 222, 112 N.E.2D 773, AFFIRMED. 


PURSUANT TO SECS. 6514 AND 6515 OF THE NEW YORK STATE EDUCATION LAW,
AUTHORIZING DISCIPLINARY ACTION AGAINST ANY PHYSICIAN "CONVICTED IN A
COURT OF COMPETENT JURISDICTION, EITHER WITHIN OR WITHOUT THIS STATE,
OF A CRIME," APPELLANT'S LICENSE TO PRACTICE AS A PHYSICIAN WAS
SUSPENDED FOR SIX MONTHS, BECAUSE HE HAD BEEN CONVICTED IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, UNDER 2 U.S.C. SEC.
192, OF FAILING TO PRODUCE BEFORE A CONGRESSIONAL COMMITTEE CERTAIN
PAPERS SUBPOENAED BY THAT COMMITTEE.  HELD:  THE NEW YORK LAW, ON ITS
FACE OR AS SO CONSTRUED AND APPLIED, DOES NOT VIOLATE THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 443-456. 

(A)  THE DECISION OF THE HIGHEST STATE COURT THAT A VIOLATION OF 2
U.S.C. SEC. 192, THOUGH NOT A CRIME UNDER NEW YORK LAW, WAS A "CRIME"
WITHIN THE MEANING OF SEC. 6514-2(B) OF THE STATE EDUCATION LAW, IS
CONCLUSIVE HERE.  P. 448. 

(B)  SECTION 6514-2(B) IS NOT UNCONSTITUTIONALLY VAGUE.  P. 448. 

(C)  THE SUBSEQUENT DESIGNATION OF CERTAIN OTHER CONTEMPTS OF
CONGRESS AS FEDERAL "CRIMES" (18 U.S.C. SEC. 402) DOES NOT PREVENT A
VIOLATION OF 2 U.S.C. SEC. 192 FROM BEING A "CRIME" WITHIN THE MEANING
OF THE NEW YORK LAW.  P. 449, N. 8. 

(D)  THE ESTABLISHMENT AND ENFORCEMENT OF STANDARDS OF CONDUCT WITHIN
ITS BORDERS RELATIVE TO THE HEALTH OF ITS PEOPLE IS A VITAL PART OF A
STATE'S POLICE POWER.  P. 449. 

(E)  THE PRACTICE OF MEDICINE IS A PRIVILEGE GRANTED BY THE STATE
UNDER ITS SUBSTANTIALLY PLENARY POWER TO FIX THE TERMS OF ADMISSION. 
P. 451. 

(F)  A STATE'S LEGITIMATE CONCERN FOR MAINTAINING HIGH STANDARDS OF
PROFESSIONAL CONDUCT EXTENDS BEYOND INITIAL LICENSING.  P. 451. 

(G)  THE SUSPENSION OF APPELLANT'S LICENSE BECAUSE OF HIS CONVICTION
IN A FOREIGN JURISDICTION, FOR AN OFFENSE NOT INVOLVING MORAL TURPITUDE
AND NOT CRIMINAL UNDER NEW YORK LAW, DOES NOT SO FAR TRANSCEND THE
STATE'S LEGITIMATE CONCERN IN PROFESSIONAL STANDARDS AS TO VIOLATE THE
FOURTEENTH AMENDMENT.  PP. 451-452. 

(H)  THE PROVISIONS OF SEC. 6515 OF THE STATE EDUCATION LAW
PRESCRIBING THE PROCEDURE FOR DISCIPLINARY ACTION ARE, ON THEIR FACE,
REASONABLE AND SATISFY THE REQUIREMENTS OF DUE PROCESS.  PP. 452-453. 

(I)  THE RECORD IN THIS CASE DOES NOT SUPPORT A CONCLUSION THAT THE
BOARD OF REGENTS, IN FIXING THE MEASURE OF DISCIPLINE AT A SIX MONTHS'
SUSPENSION OF APPELLANT'S LICENSE AS A PHYSICIAN, MADE AN ARBITRARY OR
CAPRICIOUS DECISION OR RELIED UPON IRRELEVANT EVIDENCE.  PP. 453-456. 

BARSKY V. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION HERE PRESENTED IS WHETHER THE NEW YORK STATE
EDUCATION LAW, (FN1) ON ITS FACE OR AS HERE CONSTRUED AND APPLIED,
VIOLATES THE CONSTITUTION OF THE UNITED STATES BY AUTHORIZING THE
SUSPENSION FROM PRACTICE, FOR SIX MONTHS, OF A PHYSICIAN BECAUSE HE HAS
BEEN CONVICTED, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA, OF FAILING TO PRODUCE, BEFORE A COMMITTEE OF THE UNITED
STATES HOUSE OF REPRESENTATIVES, CERTAIN PAPERS SUBPOENAED BY THAT
COMMITTEE.  (FN2) FOR THE REASONS HEREAFTER STATED, WE HOLD THAT IT
DOES NOT. 

IN 1945, THE COMMITTEE OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
KNOWN AS THE COMMITTEE ON UN-AMERICAN ACTIVITIES, WAS AUTHORIZED TO
MAKE INVESTIGATIONS OF "THE EXTENT, CHARACTER, AND OBJECTS OF UN
AMERICAN PROPAGANDA ACTIVITIES IN THE UNITED STATES."  (FN3)  IN 1946,
IN THE COURSE OF THAT INVESTIGATION, THE COMMITTEE SUBPOENAED DR.
EDWARD K. BARSKY, APPELLANT HEREIN, WHO WAS THEN THE NATIONAL CHAIRMAN
AND A MEMBER OF THE EXECUTIVE BOARD OF THE JOINT ANTI-FASCIST REFUGEE
COMMITTEE OR ANY SUBSIDIARY OR ANY SUBCOMMITTEE THEREOF, TOGETHER WITH
ALL CORRESPONDENCE AND MEMORANDA OF COMMUNICATIONS BY ANY MEANS
WHATSOEVER WITH PERSONS IN FOREIGN COUNTRIES FOR THE PERIOD FROM
JANUARY 1, 1945 TO MARCH 29, 1946."  (FN4)  SIMILAR SUBPOENAS WERE
SERVED ON THE EXECUTIVE SECRETARY AND THE OTHER MEMBERS OF THE
EXECUTIVE BOARD OF THE REFUGEE COMMITTEE.  APPELLANT APPEARED BEFORE
THE CONGRESSIONAL COMMITTEE BUT, PURSUANT TO ADVICE OF COUNSEL AND THE
ACTION OF HIS EXECUTIVE BOARD, HE AND THE OTHER OFFICERS OF THE REFUGEE
COMMITTEE FAILED AND REFUSED TO PRODUCE THE SUBPOENAED PAPERS. 

IN 1947, APPELLANT, THE EXECUTIVE SECRETARY AND SEVERAL MEMBERS OF
THE EXECUTIVE BOARD OF THE REFUGEE COMMITTEE WERE CONVICTED BY A JURY,
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, OF
VIOLATING R.S. SEC. 102, AS AMENDED, 2 U.S.C. SEC. 192, BY FAILING TO
PRODUCE THE SUBPOENAED PAPERS.  APPELLANT WAS SENTENCED TO SERVE SIX
MONTHS IN JAIL AND PAY $500.  SEE UNITED STATES V. BRYAN, 72 F. SUPP.
58; UNITED STATES V. BARSKY, 72 F. SUPP. 165.  IN 1948, THIS JUDGMENT
WAS AFFIRMED BY THE COURT OF APPEALS, BARSKY V. UNITED STATES, 83 U.S.
APP. D.C. 127, 167 F.2D 241, AND CERTIORARI WAS DENIED, 334 U.S. 843. 
IN 1950, A REHEARING WAS DENIED.  TWO JUSTICES NOTED THEIR DISSENTS,
AND TWO DID NOT PARTICIPATE.  339 U.S. 971.  APPELLANT SERVED HIS
SENTENCE, BEING ACTUALLY CONFINED FIVE MONTHS.  (FN5) 

APPELLANT WAS A PHYSICIAN WHO PRACTICED HIS PROFESSION IN NEW YORK
UNDER A LICENSE ISSUED IN 1919.  HOWEVER, IN 1948, FOLLOWING THE
AFFIRMANCE OF HIS ABOVE-MENTIONED CONVICTION, CHARGES WERE FILED
AGAINST HIM WITH THE DEPARTMENT OF EDUCATION OF THE STATE OF NEW YORK
BY AN INSPECTOR OF THAT DEPARTMENT.  THIS WAS DONE UNDER SEC. 6515 OF
THE EDUCATION LAW, SEEKING DISCIPLINARY ACTION PURSUANT TO SUBDIVISION
2(B) OF SEC. 6514 OF THAT LAW: 

"2.  THE LICENSE OR REGISTRATION OF A PRACTITIONER OF MEDICINE,
OSTEOPATHY OR PHYSIOTHERAPY MAY BE REVOKED, SUSPENDED OR ANNULLED OR
SUCH PRACTITIONER REPRIMANDED OR DISCIPLINED IN ACCORDANCE WITH THE
PROVISIONS AND PROCEDURE OF THIS ARTICLE UPON DECISION AFTER DUE
HEARING IN ANY OF THE FOLLOWING CASES: 

     *         *         *         *         * 

"(B)  THAT A PHYSICIAN, OSTEOPATH OR PHYSIOTHERAPIST HAS BEEN
CONVICTED IN A COURT OF COMPETENT JURISDICTION, EITHER WITHIN OR
WITHOUT THIS STATE, OF A CRIME; OR  ...  ." 

IN 1951, AFTER FILING AN AMENDED ANSWER, APPELLANT WAS GIVEN AN
EXTENDED HEARING BEFORE A SUBCOMMITTEE OF THE DEPARTMENT'S MEDICAL
COMMITTEE ON GRIEVANCES.  THE THREE DOCTORS CONSTITUTING THE
SUBCOMMITTEE MADE A WRITTEN REPORT OF THEIR FINDINGS, DETERMINATION AND
RECOMMENDATION, EXPRESSLY TAKING INTO CONSIDERATION THE FIVE MONTHS
DURING WHICH APPELLANT HAD BEEN SEPARATED FROM HIS PRACTICE WHILE
CONFINED IN JAIL, AND ALSO THE TESTIMONY AND LETTERS SUBMITTED IN
SUPPORT OF HIS CHARACTER.  THEY RECOMMENDED FINDING HIM GUILTY AS
CHARGED AND SUSPENDING HIM FROM PRACTICE FOR THREE MONTHS.  THE TEN
DOCTORS CONSTITUTING THE FULL GRIEVANCE COMMITTEE UNANIMOUSLY FOUND
APPELLANT GUILTY AS CHARGED.  THEY ALSO ADOPTED THE FINDINGS,
DETERMINATION AND RECOMMENDATION OF THEIR SUBCOMMITTEE, EXCEPT THAT, BY
A VOTE OF SIX TO FOUR, THEY FIXED APPELLANT'S SUSPENSION AT SIX
MONTHS.  PROMPTLY THEREAFTER, THE COMMITTEE ON DISCIPLINE OF THE BOARD
OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK HELD A FURTHER
HEARING AT WHICH APPELLANT APPEARED IN PERSON AND BY COUNSEL.  THIS
COMMITTEE CONSISTED OF TWO LAWYERS AND ONE DOCTOR.  AFTER REVIEWING THE
FACTS AND ISSUES, IT FILED A DETAILED REPORT RECOMMENDING THAT, WHILE
APPELLANT WAS GUILTY AS CHARGED, HIS LICENSE BE NOT SUSPENDED AND THAT
HE MERELY BE CENSURED AND REPRIMANDED.  (FN6)  THE BOARD OF REGENTS,
HOWEVER, RETURNED TO AND SUSTAINED THE DETERMINATION OF THE MEDICAL
COMMITTEE ON GRIEVANCES, AND SUSPENDED APPELLANT'S LICENSE FOR SIX
MONTHS.  (FN7) 

APPELLANT SOUGHT A REVIEW OF THIS DETERMINATION, UNDER SEC. 6515 OF
THE EDUCATION LAW, SUPRA, AND ARTICLE 78 OF THE NEW YORK CIVIL PRACTICE
ACT, GILBERT-BLISS' N.Y. CIV. PRAC., VOL. 6B, 1944, SECS. 1283-1306. 
THE PROCEEDING WAS INSTITUTED IN THE SUPREME COURT FOR THE COUNTY OF
ALBANY AND TRANSFERRED TO THE APPELLATE DIVISION, THIRD DEPARTMENT. 
THAT COURT CONFIRMED THE ORDER OF THE BOARD OF REGENTS.  IN RE BARSKY,
279 APP. DIV. 1117, 112 N.Y.S.2D 778, AND SEE 279 APP. DIV. 447, 111
N.Y.S.2D 393, AND 279 APP. DIV. 1101, 112 N.Y.S.2D 780, 781.  THE COURT
OF APPEALS, WITH ONE JUDGE DISSENTING, AFFIRMED.  305 N.Y.  89, 111
N.E.2D 222.  THAT COURT ALLOWED AN APPEAL TO THIS COURT AND AMENDED ITS
REMITTITUR BY ADDING THE FOLLOWING: 

"UPON THE APPEALS HEREIN THERE WERE PRESENTED AND NECESSARILY PASSED
UPON QUESTIONS UNDER THE FEDERAL CONSTITUTION, VIZ., WHETHER SECTIONS
6514 AND 6515 OF THE EDUCATION LAW, AS CONSTRUED AND APPLIED HERE, ARE
VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE
COURT OF APPEALS HELD THAT THE RIGHTS OF THE PETITIONERS UNDER THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES HAD NOT
BEEN VIOLATED OR DENIED."  305 N.Y. 691, 112 N.E.2D 773. 

WE NOTED PROBABLE JURISDICTION, THE CHIEF JUSTICE NOT PARTICIPATING
AT THAT TIME.  346 U.S. 807, 801. 

THE APPELLANT WAS CONVICTED OF A VIOLATION OF R.S. SEC. 102, AS
AMENDED, 2 U.S.C. SEC. 192, IN A COURT OF COMPETENT JURISDICTION IS
SETTLED.  IN THE NEW YORK COURTS, APPELLANT ARGUED THAT A VIOLATION OF
THAT SECTION OF THE FEDERAL STATUTES WAS NOT A CRIME UNDER THE LAW OF
NEW YORK AND THAT, ACCORDINGLY, IT WAS NOT A "CRIME" WITHIN THE MEANING
OF SEC. 6514-2(B) OF THE NEW YORK EDUCATION LAW.  HE ARGUED THAT HIS
CONVICTION, THEREFORE, DID NOT AFFORD THE NEW YORK BOARD OF REGENTS THE
REQUIRED BASIS FOR SUSPENDING HIS LICENSE.  THAT ISSUE WAS SETTLED
ADVERSELY TO HIM BY THE COURT OF APPEALS OF NEW YORK AND THAT COURT'S
INTERPRETATION OF THE STATE STATUTE IS CONCLUSIVE HERE. 

HE ARGUES THAT SEC. 6514-2(B) IS UNCONSTITUTIONALLY VAGUE.  AS
INTERPRETED BY THE NEW YORK COURTS, THE PROVISION IS EXTREMELY BROAD IN
THAT IT INCLUDES CONVICTIONS FOR ANY CRIME IN ANY COURT OF COMPETENT
JURISDICTION WITHIN OR WITHOUT NEW YORK STATE.  THIS MAY BE STRINGENT
AND HARSH BUT IT IS NOT VAGUE.  THE PROFESSIONAL STANDARD IS CLEAR. 
THE DISCRETION LEFT TO ENFORCING OFFICERS IS NOT ONE OF DEFINING THE
OFFENSE.  IT IS MERELY THAT OF MATCHING THE MEASURE OF THE DISCIPLINE
TO THE SPECIFIC CASE. 

A VIOLATION OF R.S. SEC. 102, AS AMENDED, 2 U.S.C. SEC. 192, IS
EXPRESSLY DECLARED BY CONGRESS TO BE A MISDEMEANOR.  IT IS PUNISHABLE
BY A FINE OF NOT MORE THAN $1,000 NOR LESS THAN $100 AND IMPRISONMENT
FOR NOT LESS THAN ONE MONTH NOR MORE THAN TWELVE MONTHS.  SEE NOTE 2,
SUPRA.  FOR ITS VIOLATION APPELLANT RECEIVED A SENTENCE OF ONE-HALF THE
MAXIMUM AND SERVED FIVE MONTHS IN JAIL.  THERE CAN BE NO DOUBT THAT
APPELLENT WAS CONVICTED IN A COURT OF COMPETENT JURISDICTION OF A CRIME
WITHIN THE MEANING OF THE NEW YORK STATUTE.  (FN8) IT IS ELEMENTAL THAT
A STATE HAS BROAD POWER TO ESTABLISH AND ENFORCE STANDARDS OF CONDUCT
WITHIN ITS BORDERS RELATIVE TO THE HEALTH OF EVERYONE THERE.  IT IS A
VITAL PART OF A STATE'S POLICE POWER.  THE STATE,S DISCRETION IN THAT
FIELD EXTENDS NATURALLY TO THE REGULATION OF ALL PROFESSIONS CONCERNED
WITH HEALTH.  IN TITLE VIII OF ITS EDUCATION LAW, THE STATE OF NEW YORK
REGULATES MANY FIELDS OF PROFESSIONAL PRACTICE, INCLUDING MEDICINE,
OSTEOPATHY, PHYSIOTHERAPY, DENTISTRY, VETERINARY MEDICINE, PHARMACY,
NURSING, PODIATRY AND OPTOMETRY.  NEW YORK HAS HAD LONG EXPERIENCE WITH
THE SUPERVISION OF STANDARDS OF MEDICAL PRACTICE BY REPRESENTATIVES OF
THAT PROFESSION EXERCISING WIDE DISCRETION AS TO THE DISCIPLINE TO BE
APPLIED.  IT HAS ESTABLISHED DETAILED PROCEDURES FOR INVESTIGATIONS,
HEARINGS AND REVIEWS WITH AMPLE OPPORTUNITY FOR THE ACCUSED
PRACTITIONER TO HAVE HIS CASE THOROUGHLY CONSIDERED AND REVIEWED. 

PROFESSIONAL CONDUCT SUPERVISED BY THE MEDICAL COMMITTEE ON GRIEVANCES
OF THE DEPARTMENT OF EDUCATION AND THE BOARD OF REGENTS OF THE
UNIVERSITY OF THE STATE OF NEW YORK.  IN THE PRESENT INSTANCE, THE
VIOLATION OF SEC. 514-2(B) IS OBVIOUS.  THE REAL PROBLEM FOR THE STATE
AGENCIES IS THAT OF THE APPROPRIATE DISCIPLINARY ACTION TO BE APPLIED. 

THE PRACTICE OF MEDICINE IN NEW YORK IS LAWFULLY PROHIBITED BY THE
STATE EXCEPT UPON THE CONDITIONS IT IMPOSES.  SUCH PRACTICE IS A
PRIVILEGE GRANTED BY THE STATE UNDER ITS SUBSTANTIALLY PLENARY POWER TO
FIX THE TERMS OF ADMISSION.  THE ISSUE IS NOT BEFORE US BUT IT HAS NOT
BEEN QUESTIONED THAT THE STATE COULD MAKE IT A CONDITION OF ADMISSION
TO PRACTICE THAT APPLICANTS SHALL NOT HAVE BEEN CONVICTED OF A CRIME IN
A COURT OF COMPETENT JURISDICTION EITHER WITHIN OR WITHOUT THE STATE OF
NEW YORK.  IT COULD AT LEAST REQUIRE A DISCLOSURE OF SUCH CONVICTIONS
AS A CONDITION OF ADMISSION AND LEAVE IT TO A COMPETENT BOARD TO
DETERMINE, AFTER OPPORTUNITY FOR A FAIR HEARING, WHETHER THE
CONVICTIONS, IF ANY, WERE OF SUCH A DATE AND NATURE AS TO JUSTIFY
DENIAL OF ADMISSION TO PRACTICE IN THE LIGHT OF ALL MATERIAL
CIRCUMSTANCES BEFORE THE BOARD. 

IT IS EQUALLY CLEAR THAT A STATE'S LEGITIMATE CONCERN FOR MAINTAINING
HIGH STANDARDS OF PROFESSIONAL CONDUCT EXTENDS BEYOND INITIAL
LICENSING.  WITHOUT CONTINUING SUPERVISION, INITIAL EXAMINATIONS AFFORD
LITTLE PROTECTION.  APPELLANT CONTENDS, HOWEVER, THAT THE STANDARD
WHICH NEW YORK HAS ADOPTED EXCEEDS REASONABLE SUPERVISION AND DEPRIVES
HIM OF PROPERTY RIGHTS IN HIS LICENSE AND HIS ESTABLISHED PRACTICE,
WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT. 

HE ARGUES THAT NEW YORK'S SUSPENSION OF HIS LICENSE BECAUSE OF HIS
CONVICTION IN A FOREIGN JURISDICTION, FOR AN OFFENSE NOT INVOLVING
MORAL TURPITUDE (FN10) AND NOT CRIMINAL UNDER THE LAW OF NEW YORK, SO
FAR TRANSCENDS THAT STATE'S LEGITIMATE CONCERN IN PROFESSIONAL
STANDARDS AS TO VIOLATE THE FOURTEENTH AMENDMENT.  WE DISAGREE AND HOLD
THAT NEW YORK'S GOVERNMENTAL DISCRETION IS NOT SO RESTRICTED. 

THIS STATUTE IS READILY DISTINGUISHABLE FROM ONE WHICH WOULD REQUIRE
THE AUTOMATIC TERMINATION OF A PROFESSIONAL LICENSE BECAUSE OF SOME
CRIMINAL CONVICTION OF ITS HOLDER.  (FN11)  REALIZING THE IMPORTANCE OF
HIGH STANDARDS OF CHARACTER AND LAW OBSERVANCE ON THE PART OF
PRACTICING PHYSICIANS, THE STATE HAS ADOPTED A FLEXIBLE PROCEDURE TO
PROTECT THE PUBLIC AGAINST THE PRACTICE OF MEDICINE BY THOSE CONVICTED
OF MANY MORE KINDS AND DEGREES OF CRIME THAN IT CAN WELL LIST
SPECIFICALLY.  IT ACCORDINGLY HAS SOUGHT TO ATTAIN ITS JUSTIFIABLE END
BY MAKING THE CONVICTION OF ANY CRIME A VIOLATION OF ITS PROFESSIONAL
MEDICAL STANDARDS, AND THEN LEAVING IT TO A QUALIFIED BOARD OF DOCTORS
TO DETERMINE INITIALLY THE MEASURE OF DISCIPLINE TO BE APPLIED TO THE
OFFENDING PRACTITIONER. 

UNREASONABLENESS.  ALL CHARGES ARE PASSED UPON BY A COMMITTEE ON
GRIEVANCES OF THE DEPARTMENT.  THAT COMMITTEE CONSISTS OF TEN LICENSED
PHYSICIANS, APPOINTED BY THE BOARD OF REGENTS.  THE TERM OF EACH MEMBER
IS FIVE YEARS.  THEY SERVE WITHOUT COMPENSATION.  THREE ARE "MEMBER OF
CONSPICUOUS PROFESSIONAL STANDING" APPOINTED UPON THE BOARD'S OWN
NOMINATION.  SEC. 6515-2.  THE OTHERS ARE APPOINTED FROM LISTS OF
NOMINEES SUBMITTED RESPECTIVELY BY THE NEW YORK STATE MEDICAL,
HOMEOPATHIC AND OSTEOPATHIC SOCIETIES.  CHARGES MUST BE FILED IN
WRITING AND A SUBCOMMITTEE OF THREE OR MORE MEMBERS HEARS AND REPORTS
ON THEM.  AT LEAST TEN DAYS' NOTICE OF A HEARING IS REQUIRED AND
OPPORTUNITY IS AFFORDED THE ACCUSED TO APPEAR PERSONALLY, OR BY
COUNSEL, WITH THE RIGHT TO PRODUCE WITNESSES AND EVIDENCE ON HIS OWN
BEHALF, TO CROSS-EXAMINE WITNESSES, TO EXAMINE EVIDENCE PRODUCED
AGAINST HIM AND TO HAVE SUBPOENAS ISSUED BY THE COMMITTEE.  THE
SUBCOMMITTEE TRANSMITS ITS REPORT, FINDINGS AND RECOMMENDATION,
TOGETHER WITH A TRANSCRIPT OF EVIDENCE, TO THE COMMITTEE ON
GRIEVANCES.  THAT COMMITTEE MAY TAKE FURTHER TESTIMONY.  IT DETERMINES
THE MERIT OF THE CHARGES AND, IF THE PRACTITIONER IS FOUND GUILTY BY A
UNANIMOUS VERDICT, THE RECORD, TOGETHER WITH THE FINDINGS AND
DETERMINATION OF THE COMMITTEE, IS TRANSMITTED TO THE BOARD OF
REGENTS.  THAT BOARD, "AFTER DUE HEARING," MAY ACCEPT OR MODIFY THE
COMMITTEE'S RECOMMENDATION, OR FIND THE PRACTITIONER NOT GUILTY AND
DISMISS THE CHARGES.  SEC. 6515-7.  "THE COMMITTEE ON GRIEVANCES SHALL
NOT BE BOUND BY THE LAWS OF EVIDENCE IN THE CONDUCT OF ITS PROCEEDINGS,
BUT THE DETERMINATION SHALL BE FOUNDED UPON SUFFICIENT LEGAL EVIDENCE
TO SUSTAIN THE SAME."  SEC.  6515-5.  IF THE ACCUSED IS FOUND GUILTY,
HE MAY INSTITUTE PROCEEDINGS FOR REVIEW UNDER ARTICLE 78 OF THE CIVIL
PRACTICE ACT, RETURNABLE BEFORE THE APPELLATE DIVISION OF THE THIRD
JUDICIAL DEPARTMENT. 

THE ABOVE PROVISIONS, ON THEIR FACE, ARE WELL WITHIN THE DEGREE OF
REASONABLENESS REQUIRED TO CONSTITUTE DUE PROCESS OF LAW IN A FIELD SO
PERMEATED WITH PUBLIC RESPONSIBILITY AS THAT OF HEALTH. 

THE STATUTORY PROCEDURE AS ABOVE OUTLINED HAS BEEN METICULOUSLY
FOLLOWED IN THIS CASE AND NO OBJECTION IS MADE ON THAT SCORE. 
APPELLANT, NEVERTHELESS, COMPLAINS THAT, AS CONSTRUED AND APPLIED BY
THE MEDICAL COMMITTEE ON GRIEVANCES AND ITS SUBCOMMITTEE, HIS HEARING
VIOLATED THE DUE PROCESS OF LAW REQUIRED BY THE FOURTEENTH AMENDMENT. 
HE CONTENDS THAT EVIDENCE WAS INTRODUCED WHICH WAS IMMATERIAL AND
PREJUDICIAL AND THAT THE COMMITTEE BASED ITS DETERMINATION UPON THAT
EVIDENCE.  HE CONTENDS, IN EFFECT, THAT THE COMMITTEE REACHED ITS
DETERMINATION WITHOUT "SUFFICIENT LEGAL EVIDENCE TO SUSTAIN THE SAME,"
THUS EXCEEDING ITS STATUTORY AUTHORITY.  HE CLAIMS FURTHER THAT THE
COMMITTEE ACTED CAPRICIOUSLY AND ARBITRARILY UPON IMMATERIAL AND
PREJUDICIAL EVIDENCE, THUS NOT ONLY EXCEEDING ITS STATUTORY AUTHORITY
BUT DEPRIVING HIM OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW. 

THE STATE COURTS HAVE DETERMINED THAT THE HEARING DID NOT VIOLATE THE
STATUTE AND, ACCORDINGLY, WE ARE CONCERNED ONLY WITH THE CONSTITUTIONAL
QUESTION.  THE CLAIM IS THAT IMMATERIAL AND PREJUDICIAL EVIDENCE OF THE
ALLEGED SUBVERSIVE ACTIVITIES OF THE REFUGEE COMMITTEE WAS INTRODUCED
AND RELIED UPON.  EMPHASIS IS GIVEN TO EVIDENCE THAT THE REFUGEE
COMMITTEE HAD BEEN PLACED ON THE ATTORNEY GENERAL'S LIST OF SUBVERSIVE
OR COMMUNISTIC ORGANIZATIONS.  TO EMPHASIZE THE PREJUDICIAL CHARACTER
OF THIS TESTIMONY, APPELLANT REFERS TO THE FACT THAT, AT THE TIME OF
THE SUBCOMMITTEE HEARING, LITIGATION INVOLVING SUCH LIST WAS PENDING IN
THE COURTS AND HAD RESULTED IN A DECISION ADVERSE TO APPELLANT, WHEREAS
THAT DECISION SUBSEQUENTLY WAS SET ASIDE BY THIS COURT.  (FN12)  THE
STATE'S ANSWER TO THESE CLAIMS IS THAT SUCH TESTIMONY WAS INVITED BY
APPELLANT'S OWN TESTIMONY AS TO THE ACTIVITIES OF THE REFUGEE
COMMITTEE.  (FN13)  THE STATE SHOWS ALSO THAT WHILE SUCH EVIDENCE WAS
NOT NECESSARY TO ESTABLISH APPELLANT'S VIOLATION OF THE FEDERAL STATUTE
AS TO THE SUBPOENAED PAPERS, IT WAS MATERIAL AND ADMISSIBLE TO ASSIST
THE COMMITTEE ON GRIEVANCES AND THE OTHER AGENCIES IN DETERMINING THE
APPROPRIATE DISCIPLINARY MEASURES TO BE APPLIED TO APPELLANT UNDER THE
STATE LAW.  APPELLANT RECOGNIZED THIS MATERIALITY BY ENDEAVORING TO USE
EVIDENCE AS TO THE REFUGEE COMMITTEE'S CHARITABLE ACTIVITIES TO JUSTIFY
AND EXCUSE HIS FAILURE TO PRODUCE THE SUBPOENAED PAPERS. 

WE FIND NOTHING SUFFICIENT TO SUSTAIN A CONCLUSION THAT THE BOARD OF
REGENTS OR THE RECOMMENDING COMMITTEES MADE AN ARBITRARY OR CAPRICIOUS
DECISION OR RELIED UPON IRRELEVANT EVIDENCE.  THE REPORT MADE BY THE
ORIGINAL SUBCOMMITTEE OF THREE THAT HEARD THE EVIDENCE INDICATES THAT
IT WAS NOT INFLUENCED BY THE CHARACTER OF THE REFUGEE COMMITTEE.  IT
SAID: 

"WE DO NOT FEEL THAT WE ARE NOW CONCERNED, NOR WOULD WE BE ABLE TO
DETERMINE, WHETHER THE BOOKS AND RECORDS OF THAT COMMITTEE WOULD
DISCLOSE WHETHER THE COMMITTEE WAS COMPLETELY PHILANTHROPIC IN
CHARACTER, OR WHETHER IT WAS ENGAGED IN SUBVERSIVE ACTIVITIES." 

THE PAINSTAKING COMPLETE REVIEW OF THE EVIDENCE AND THE ISSUES BY THE
COMMITTEE ON DISCIPLINE OF THE BOARD OF REGENTS DEMONSTRATES A HIGH
DEGREE OF UNBIASED OBJECTIVITY.  BEFORE THE FINAL ACTION OF THE BOARD
OF REGENTS, THE COMMITTEE ON DISCIPLINE IN ITS REPORT TO THAT BOARD
NOTED THAT: 

"AFTER THE HEARING BELOW AND THE DETERMINATION OF THE MEDICAL
COMMITTEE ON GRIEVANCES, THE SUPREME COURT OF THE UNITED STATES
REVERSED AN ORDER OF THE DISTRICT COURT DISMISSING A COMPLAINT BY THE
REFUGEE COMMITTEE IN AN ACTION BY IT FOR DECLARATORY AND INJUNCTIVE
RELIEF (JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, ATTORNEY
GENERAL, 341 U.S. 123), SOME OF THE MAJORITY JUSTICES GOING ON THE
GROUND THAT A DETERMINATION OF THIS KIND COULD NOT CONSTITUTIONALLY BE
MADE WITHOUT A HEARING AND OPPORTUNITY TO OFFER PROOF AND DISPROOF.  IN
VIEW OF THIS DECISION, NO EVIDENTIARY WEIGHT CAN BE GIVEN IN THE
PRESENT PROCEEDING TO THE LISTING BY THE ATTORNEY GENERAL." 

THAT COMMITTEE THUS RECOGNIZED THE EXISTENCE OF A VALID BASIS FOR
DISCIPLINARY ACTION BUT FOUND "NO VALID BASIS FOR DISCIPLINE BEYOND THE
STATUTORY MINIMUM OF CENSURE AND REPRIMAND."  WITH THIS RECOMMENDATION
BEFORE THE BOARD OF REGENTS, WE SEE NO REASON TO CONCLUDE THAT THE
BOARD DISREGARDED IT OR ACTED ARBITRARILY, CAPRICIOUSLY OR THROUGH
PREJUDICE AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW.  THE BOARD MADE
NO SPECIFIC FINDINGS.  IT ACCEPTED AND SUSTAINED THE UNANIMOUS
DETERMINATION OF THE MEDICAL COMMITTEE ON GRIEVANCES, WHICH WAS THAT
APPELLANT WAS GUILTY.  THEN, IN COMPLIANCE WITH THE RECOMMENDATION OF
THAT COMMITTEE, IT FIXED THE MEASURE OF DISCIPLINE AT A SIX MONTHS'
SUSPENSION OF APPELLANT'S REGISTRATION AS A PHYSICIAN. 

THE COURT HAS CONSIDERED THE OTHER POINTS RAISED BY APPELLANT BUT
FINDS NO SUBSTANTIAL FEDERAL CONSTITUTIONAL OBJECTION IN THEM, EVEN
ASSUMING THAT THEY ARE BEFORE US AS HAVING BEEN CONSIDERED BY THE COURT
OF APPEALS, ALTHOUGH NOT MENTIONED IN ITS OPINION OR THE AMENDMENT TO
ITS REMITTITUR. 

THE JUDGMENT OF THE COURT OF APPEALS OF THE STATE OF NEW YORK,
ACCORDINGLY, IS AFFIRMED. 

FN1  MCKINNEY'S N.Y. LAWS, EDUCATION LAW, SECS. 6514, 6515. 

FN2  THE CONVICTION WAS FOR VIOLATING R.S. SEC. 102, AS AMENDED, 52
STAT. 942, 2 U.S.C.  SEC. 192:

"SEC.  102.  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 JOINT COMMITTEE ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF
THE TWO HOUSES OF CONGRESS, 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 JAIL FOR NOT
LESS THAN ONE MONTH NOR MORE THAN TWELVE MONTHS." 

FN3  "THE COMMITTEE ON UN-AMERICAN ACTIVITIES, AS A WHOLE OR BY
SUBCOMMITTEE, IS AUTHORIZED TO MAKE FROM TIME TO TIME INVESTIGATIONS OF
(1) THE EXTENT, CHARACTER, AND OBJECTS OF UN-AMERICAN PROPAGANDA
ACTIVITIES IN THE UNITED STATES, (2) THE DIFFUSION WITHIN THE UNITED
STATES OF SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT IS INSTIGATED FROM
FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN AND ATTACKS THE PRINCIPLE OF
THE FORM OF GOVERNMENT AS GUARANTEED BY OUR CONSTITUTION, AND (3) ALL
OTHER QUESTIONS IN RELATION THERETO THAT WOULD AID CONGRESS IN ANY
NECESSARY REMEDIAL LEGISLATION."  91 CONG. REC. 10, 15.  THIS WAS
CARRIED INTO THE RULES OF THE HOUSE AS RULE XIQ)(2), 60 STAT. 823,
828. 

FN4  UNITED STATES V. BRYAN, 72 F. SUPP. 58, 60. 

FN5  FOR RELATED LITIGATION, SEE UNITED STATES V. BRYAN, 339 U.S.
323; UNITED STATES V. FLEISCHMAN, 339 U.S. 349; JOINT ANTI-FASCIST
REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123. 

FN6  THE COMMITTEE SAID: 

"SINCE VIOLATION OF THE FEDERAL STATUTE WHICH RESPONDENT HAS BEEN
CONVICTED OF VIOLATING INVOLVES INHERENTLY NO MORAL TURPITUDE, AND
SINCE THERE HAS BEEN NO IMPEACHMENT BY EVIDENCE OF RESPONDENT'S
EXPLANATION (SUFFICIENT IF UNIMPEACHED) OF HIS FAILURE TO PRODUCE THE
SUBPOENAED DOCUMENTS, WE FIND IN THE RECORD NO VALID BASIS FOR
DISCIPLINE BEYOND THE STATUTORY MINIMUM OF CENSURE AND REPRIMAND; AND
WE THEREFORE RECOMMEND THAT RESPONDENT'S LICENSE BE NOT SUSPENDED, AS
THE MEDICAL COMMITTEE ON GRIEVANCES HAS RECOMMENDED, BUT THAT HE BE
CENSURED AND REPRIMANDED." 

FN7  THE ORDER SUSPENDING APPELLANT'S LICENSE WAS ISSUED BY THE
COMMISSIONER OF EDUCATION IN 1951, BUT ITS EFFECT WAS STAYED BY THE NEW
YORK COURT OF APPEALS, PENDING AN APPEAL TO THIS COURT.  305 N.Y. 691,
112 N.E.2D 773. 

AT ABOUT THE SAME TIME, THE BOARD FIXED AT THREE MONTHS THE
SUSPENSION OF THE LICENSE OF ANOTHER DOCTOR WHO WAS A MEMBER OF THE
EXECUTIVE BOARD OF THE REFUGEE COMMITTEE AND WHO HAD BEEN CONVICTED
WITH APPELLANT.  IT ALSO DIRECTED THAT A THIRD DOCTOR, WHO WAS A MEMBER
OF THE SAME BOARD, BE CENSURED AND REPRIMANDED.  EACH SUCH
DETERMINATION WAS CONFIRMED BY THE NEW YORK COURTS SIMULTANEOUSLY WITH
THE CONFIRMATIONS RELATING TO APPELLANT.  SEE 279 APP. DIV. 447, 111
N.Y.S.2D 393; 279 APP. DIV. 1101, 112 N.Y.S.2D 780, 781; 279 APP. DIV.
1117, 112 N.Y.S.2D 778; AND 305 N.Y. 89, 111 N.E.2D 222. 

FN8  THE SUBSEQUENT DESIGNATION OF CERTAIN OTHER CONTEMPTS OF
CONGRESS AS FEDERAL "CRIMES" (18 U.S.C. SEC. 402) DOES NOT PREVENT THIS
MISDEMEANOR FROM BEING A CRIME WITHIN THE MEANING OF THE NEW YORK
STATUTE. 

FN9  "SEC.  6514.  REVOCATION OF CERTIFICATES; ANNULMENT OF
REGISTRATIONS: 

"1.  WHENEVER ANY PRACTITIONER OF MEDICINE, OSTEOPATHY OR
PHYSIOTHERAPY SHALL BE CONVICTED OF A FELONY, AS DEFINED IN SECTION
SIXTY-FIVE HUNDRED TWO OF THIS ARTICLE, THE REGISTRATION OF THE PERSON
SO CONVICTED MAY BE ANNULLED AND HIS LICENSE REVOKED BY THE
DEPARTMENT.  IT SHALL BE THE DUTY OF THE CLERK OF THE COURT WHEREIN
SUCH CONVICTION TAKES PLACE TO TRANSMIT A CERTIFICATE OF SUCH
CONVICTION TO THE DEPARTMENT.  UPON REVERSAL OF SUCH JUDGMENT BY A
COURT HAVING JURISDICTION, THE DEPARTMENT, UPON RECEIPT OF A CERTIFIED
COPY OF SUCH JUDGMENT OR ORDER OF REVERSAL, SHALL VACATE ITS ORDER OF
REVOCATION OR ANNULMENT. 

"2.  THE LICENSE OR REGISTRATION OF A PRACTITIONER OF MEDICINE,
OSTEOPATHY OR PHYSIOTHERAPY MAY BE REVOKED, SUSPENDED OR ANNULLED OR
SUCH PRACTITIONER REPRIMANDED OR DISCIPLINED IN ACCORDANCE WITH THE
PROVISIONS AND PROCEDURE OF THIS ARTICLE UPON DECISION AFTER DUE
HEARING IN ANY OF THE FOLLOWING CASES: 

"(A) THAT A PHYSICIAN, OSTEOPATH OR PHYSIOTHERAPIST IS GUILTY OF
FRAUD OR DECEIT IN THE PRACTICE OF MEDICINE, OSTEOPATHY OR
PHYSIOTHERAPY OR IN HIS ADMISSION TO THE PRACTICE OF MEDICINE,
OSTEOPATHY OR PHYSIOTHERAPY; OR: 

"(B)  THAT A PHYSICIAN, OSTEOPATH OR PHYSIOTHERAPIST HAS BEEN
CONVICTED IN A COURT OF COMPETENT JURISDICTION, EITHER WITHIN OR
WITHOUT THIS STATE, OF A CRIME; OR: 

"(C)  THAT A PHYSICIAN, OSTEOPATH OR PHYSIOTHERAPIST IS AN HABITUAL
DRUNKARD, OR IS OR HAS BEEN ADDICTED TO THE USE OF MORPHINE, COCAINE OR
OTHER DRUGS HAVING SIMILAR EFFECT, OR HAS BECOME INSANE; OR: 

"(D)  THAT A PHYSICIAN, OSTEOPATH OR PHYSIOTHERAPIST OFFERED,
UNDERTOOK OR AGREED TO CURE OR TREAT DISEASE BY A SECRET METHOD,
PROCEDURE, TREATMENT OR MEDICINE OR THAT HE CAN TREAT, OPERATE AND
PRESCRIBE FOR ANY HUMAN CONDITION BY A METHOD, MEANS OR PROCEDURE WHICH
HE REFUSES TO DIVULGE UPON DEMAND TO THE COMMITTEE ON GRIEVANCES; OR
THAT HE HAS ADVERTISED FOR PATRONAGE BY MEANS OF HANDBILLS, POSTERS,
CIRCULARS, LETTERS, STEREOPTICON SLIDES, MOTION PICTURES, RADIO, OR
MAGAZINES; OR: 

"(E)  THAT A PHYSICIAN, OSTEOPATH OR PHYSIOTHERAPIST DID UNDERTAKE OR
ENGAGE IN ANY MANNER OR BY ANY WAYS OR MEANS WHATSOEVER TO PERFORM ANY
CRIMINAL ABORTION OR TO PROCURE THE PERFORMANCE OF THE SAME BY ANOTHER
OR TO VIOLATE SECTION ELEVEN HUNDRED FORTY-TWO OF THE PENAL LAW, OR DID
GIVE INFORMATION AS TO WHERE OR BY WHOM SUCH A CRIMINAL ABORTION MIGHT
BE PERFORMED OR PROCURED. 

"(F)  THAT A PHYSICIAN, OSTEOPATH OR PHYSIOTHERAPIST HAS DIRECTLY OR
INDIRECTLY REQUESTED, RECEIVED OR PARTICIPATED IN THE DIVISION,
TRANSFERENCE, ASSIGNMENT, REBATE, SPLITTING OR REFUNDING OF A FEE FOR,
OR HAS DIRECTLY OR INDIRECTLY REQUESTED, RECEIVED OR PROFITED BY MEANS
OF A CREDIT OR OTHER VALUABLE CONSIDERATION AS A COMMISSION, DISCOUNT
OR GRATUITY IN CONNECTION WITH THE FURNISHING OF MEDICAL, SURGICAL OR
DENTAL CARE, DIAGNOSIS OR TREATMENT OR SERVICE, INCLUDING X-RAY
EXAMINATION AND TREATMENT, OR FOR OR IN CONNECTION WITH THE SALE,
RENTAL, SUPPLYING OR FURNISHING OF CLINICAL LABORATORY SERVICE OR
SUPPLIES, X-RAY LABORATORY SERVICES OR SUPPLIES, INHALATION THERAPY
SERVICE OR EQUIPMENT, AMBULANCE SERVICE, HOSPITAL OR MEDICAL SUPPLIES,
PHYSIOTHERAPY OR OTHER THERAPEUTIC SERVICE OR EQUIPMENT, ARTIFICIAL
LIMBS, TEETH OR EYES, ORTHOPEDIC OR SURGICAL APPLIANCES OR SUPPLIES,
OPTICAL APPLIANCES, SUPPLIES OR EQUIPMENT, DEVICES FOR AID OF HEARING,
DRUGS, MEDICATION OR MEDICAL SUPPLIES OR ANY OTHER GOODS, SERVICES OR
SUPPLIES PRESCRIBED FOR MEDICAL DIAGNOSIS, CARE OR TREATMENT UNDER THIS
CHAPTER, EXCEPT PAYMENT, NOT TO EXCEED THIRTY-THREE AND ONE-THIRD PER
CENTUM OF ANY FEE RECEIVED FOR X-RAY EXAMINATION, DIAGNOSIS OR
TREATMENT, TO ANY HOSPITAL FURNISHING FACILITIES FOR SUCH EXAMINATION,
DIAGNOSIS OR TREATMENT  ...  ." 

FN10  SEE SINCLAIR V. UNITED STATES, 279 U.S. 263, 299. 

FN11  A CONVICTION FOR A CRIME WHICH, UNDER THE LAW OF NEW YORK,
WOULD AMOUNT TO A FELONY HAS BEEN GIVEN SUCH AN AUTOMATIC EFFECT IN
SOME INSTANCES.  SEE MCKINNEY'S N.Y.  LAWS, EDUCATION LAW, SEC. 6613
12, AS TO DENTISTS; AND MCKINNEY'S N.Y. LAWS, JUDICIARY LAW, SEC. 90-4,
AS TO ATTORNEYS.  CF. SEC. 6514-1, NOTE 9, SUPRA, AS TO PHYSICIANS. 
SEE IN RE RAAB, 156 OHIO ST. 158, 101 N.E.2D 294. 

FN12  JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123. 
FN13  THE CHARACTER OF THE ACTIVITIES OF THE JOINT ANTI-FASCIST
REFUGEE COMMITTEE WAS PLACED IN ISSUE BY APPELLANT'S AMENDED ANSWER. 
HE VOLUNTEERED MUCH TESTIMONY AS TO THE BENEVOLENT AND CHARITABLE
PROGRAMS IN WHICH THE COMMITTEE PARTICIPATED AND HE INTRODUCED MANY
EXHIBITS ON THE SAME SUBJECT.  REFERENCE TO THE ATTORNEY GENERAL'S LIST
OF SUBVERSIVES DEVELOPED NATURALLY DURING THE RESULTING CROSS
EXAMINATION OF APPELLANT. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

DR. BARSKY HAS BEEN A PRACTICING PHYSICIAN AND SURGEON SINCE HIS
GRADUATION FROM THE MEDICAL COLLEGE OF COLUMBIA UNIVERSITY IN 1919,
EXCEPT FOR TIME SPENT DOING POSTGRADUATE WORK IN EUROPE.  BEGINNING
WITH HIS INTERNSHIP HE HAS BEEN ALMOST CONTINUOUSLY ON THE STAFF OF
BETH ISRAEL HOSPITAL IN NEW YORK, THE CITY OF HIS BIRTH.  DURING THE
SPANISH CIVIL WAR DR. BARSKY AND OTHERS BECAME ACTIVELY CONCERNED WITH
THE MEDICAL NEEDS OF LOYALIST SOLDIERS.  THE DOCTOR WENT OVER TO SPAIN
TO HEAD AN AMERICAN HOSPITAL FOR THE LOYALIST WOUNDED.  FOLLOWING HIS
RETURN TO PRACTICE IN NEW YORK DR. BARSKY BECAME CHAIRMAN OF THE JOINT
ANTI-FISCIST REFUGEE COMMITTEE, AN ORGANIZATION FOUNDED IN 1942 TO HELP
WITH PROBLEMS OF SPANISH REFUGEES FROM THE FRANCO GOVERNMENT.  IN 1945
THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES BEGAN AN INVESTIGATION OF
THE REFUGEE COMMITTEE TO SEE IF IT WAS SPREADING POLITICAL PROPAGANDA. 
DR. BARSKY AND OTHER MEMBERS OF THE ORGANIZATIONS'S EXECUTIVE BOARD
WERE SUMMONED BEFORE THE CONGRESSIONAL COMMITTEE AND ASKED TO PRODUCE
THE RECORDS OF CONTRIBUTIONS AND DISBURSEMENTS OF THE REFUGEE
COMMITTEE.  DR. BARSKY AND THE OTHERS REFUSED, EXPLAINING THAT MANY
CONTRIBUTORS HAD RELATIVES IN SPAIN WHOSE LIVES MIGHT BE ENDANGERED IF
THE CONTRIBUTORS' NAMES WERE GIVEN OUT PUBLICLY.  INSTEAD, THE
ORGANIZATION WAS WILLING TO GIVE THE REQUIRED INFORMATION TO THE
PRESIDENT'S WAR RELIEF CONTROL BOARD.  IN MAKING HIS REFUSAL, DR.
BARSKY HAD THE ADVICE OF ATTORNEYS THAT HIS ACTION WAS JUSTIFIED
BECAUSE THE CONGRESSIONAL COMMITTEE'S SUBPOENA TRANSCENDED ITS
CONSTITUTIONAL POWERS.  CONCEDEDLY THIS ADVICE WAS REASONABLE AND IN
ACCORD WITH THE LEGAL OPINION OF MANY LAWYERS AND JURISTS THROUGHOUT
THE COUNTRY.  (FN1)  MOREOVER, THE REFUGEE COMMITTEE WAS ADVISED THAT
THE ONLY WAY TO RAISE ITS CONSTITUTIONAL CLAIM AND TEST THE SUBPOENA'S
VALIDITY WAS FOR ITS EXECUTIVES TO RISK JAIL BY REFUSING TO PRODUCE THE
REQUESTED PAPERS.  DR. BARSKY WAS SENTENCED TO SIX MONTHS IN JAIL AS
PUNISHMENT FOR HIS DISOBEDIENCE OF THE ORDER TO PRODUCE, AND THE COURT
OF APPEALS AFFIRMED HIS SENTENCE, OVERRULING HIS CONSTITUTIONAL
ARGUMENTS.  THIS COURT DENIED CERTIORARI WITHOUT APPROVING OR
DISAPPROVING THE CONSTITUTIONAL CONTENTIONS.  334 U.S. 843. 

WHEN DR. BARSKY WAS RELEASED FROM JAIL AND READY TO RESUME HIS
PRACTICE, AN AGENT OF THE BOARD OF REGENTS OF THE UNIVERSITY OF THE
STATE OF NEW YORK (FN2) SERVED HIM WITH A COMPLAINT DEMANDING THAT HIS
LICENSE TO PRACTICE MEDICINE BE REVOKED.  THIS ACTION WAS NOT BASED ON
ANY ALLEGED FAILING OF DR. BARSKY IN HIS ABILITIES OR CONDUCT AS A
PHYSICIAN OR SURGEON.  THE SOLE ALLEGATION WAS THAT HE HAD BEEN
CONVICTED OF A CRIME - REFUSAL TO PRODUCE PAPERS BEFORE CONGRESS.  NEW
YORK LAW AUTHORIZES REVOCATION OR SUSPENSION OF A PHYSICIAN'S LICENSE
IF HE IS CONVICTED OF A CRIME.  HEARINGS WERE HELD BEFORE A GRIEVANCE
COMMITTEE OF PHYSICIANS APPOINTED BY THE REGENTS, AND THERE WAS MUCH
TESTIMONY TO THE EFFECT THAT DR. BARSKY WAS BOTH A SKILLFUL SURGEON AND
A GOOD CITIZEN.  NO WITNESS TESTIFIED TO ANY CONDUCT OF DR. BARSKY
WHICH IN ANY WAY REFLECTED ON HIS PERSONAL OR PROFESSIONAL CHARACTER. 
NOTHING WAS PROVEN AGAINST HIM EXCEPT THAT HE HAD REFUSED TO PRODUCE
PAPERS.  IN REVIEWING THE FINDINGS OF FACT, PURSUANT TO SEC. 211 OF THE
STATE'S EDUCATION LAW, THE REGENTS' DISCIPLINE COMMITTEE REPORTED THAT
DR. BARSKY'S REFUSAL TO PRODUCE THE REFUGEE COMMITTEE'S PAPERS WAS
SHOWN TO BE DUE TO A DESIRE TO PRESERVE THE CONSTITUTIONAL RIGHTS OF
HIS ORGANIZATION, THAT HIS OFFENSE INVOLVED NO MORAL TURPITUDE
WHATEVER, (FN3) AND THAT HE HAD ALREADY BEEN PUNISHED.  THE RIGHT TO
TEST THE CONSTITUTIONAL POWER OF A COMMITTEE IS ITSELF A
CONSTITUTIONALLY PROTECTED RIGHT IN THIS COUNTRY.  (FN4)  BUT DESPITE
ALL THESE THINGS THE REGENTS SUSPENDED DR. BARSKY'S MEDICAL LICENSE FOR
SIX MONTHS, GIVING NO REASON FOR THEIR ACTION. 

I HAVE NO DOUBT THAT NEW YORK HAS BROAD POWER TO REGULATE THE
PRACTICE OF MEDICINE.  BUT THE RIGHT TO PRACTICE IS, AS MR. JUSTICE
DOUGLAS SHOWS, A VERY PRECIOUS PART OF THE LIBERTY OF AN INDIVIDUAL
PHYSICIAN OR SURGEON.  IT MAY MEAN MORE THAN ANY PROPERTY.  SUCH A
RIGHT IS PROTECTED FROM ARBITRARY INFRINGEMENT BY OUR CONSTITUTION,
WHICH FORBIDS ANY STATE TO DEPRIVE A PERSON OF LIBERTY OR PROPERTY
WITHOUT DUE PROCESS OF LAW.  ACCORDINGLY, WE BROUGHT THIS CASE HERE TO
DETERMINE IF NEW YORK'S ACTION AGAINST DR. BARSKY VIOLATES THE
REQUIREMENTS OF THE FEDERAL CONSTITUTION. 

THIS RECORD REVEALS, IN MY OPINION, THAT NEW YORK HAS CONTRAVENED THE
CONSTITUTION IN AT LEAST ONE, AND POSSIBLY TWO RESPECTS.  FIRST, IT HAS
USED IN PLACE OF PROBATIVE EVIDENCE AGAINST DR. BARSKY AN ATTAINDER
PUBLISHED BY THE ATTORNEY GENERAL OF THE UNITED STATES IN VIOLATION OF
THE CONSTITUTION.  SECOND, IT HAS PERMITTED DR. BARSKY TO BE TRIED BY
AN AGENCY VESTED WITH INTERMINGLED LEGISLATIVE-EXECUTIVE-JUDICIAL
POWERS SO BROAD AND SO DEVOID OF LEGISLATIVE STANDARDS OR GUIDES THAT
IT IS IN EFFECT NOT A TRIBUNAL OPERATING WITHIN THE ORDINARY SAFEGUARDS
OF LAW BUT AN AGENCY WITH ARBITRARY POWER TO DECIDE, CONCEIVABLY ON THE
BASIS OF SUSPICION, WHIM OR CAPRICE, WHETHER OR NOT PHYSICIANS SHALL
LOSE THEIR LICENSES. 

FIRST.  AT THE HEARING BEFORE A SUBCOMMITTEE OF THE MEDICAL GRIEVANCE
COMMITTEE, APPOINTED BY THE REGENTS, THE LAWYER FOR THE REGENTS
INTRODUCED EVIDENCE THAT THE REFUGEE COMMITTEE HEADED BY DR. BARSKY HAD
BEEN LISTED BY THE ATTORNEY GENERAL OF THE UNITED STATES AS
SUBVERSIVE.  PAGES AND PAGES OF THE RECORD ARE DEVOTED TO THIS LISTING,
TO ARGUMENTS ABOUT ITS MEANING AND TO OTHER INNUENDOES OF SUSPECTED
COMMUNISTIC ASSOCIATIONS OF DR. BARSKY WITHOUT A SINGLE WORD OF LEGAL
OR CREDIBLE PROOF.  EXCERPTS FROM THE RECORD ARE PRINTED IN THE
APPENDIX TO THIS OPINION.  THE GRIEVANCE COMMITTEE MADE A FORMAL
FINDING OF FACT THAT THE REFUGEE COMMITTEE HAD BEEN LISTED AS
SUBVERSIVE.  THIS COURT, HOWEVER, HAS HELD THAT THE ATTORNEY GENERAL'S
LIST WAS UNLAWFUL, JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341
U.S. 123.  MY VIEW WAS AND IS THAT THE LIST WAS THE EQUIVALENT OF A
BILL OF ATTAINDER WHICH THE CONSTITUTION EXPRESSLY FORBIDS.  THE
REGENTS' OWN REVIEWING COMMITTEE ON DISCIPLINE RECOGNIZED THE
ILLEGALITY OF THE LIST AND ADVISED THE REGENTS THAT NO WEIGHT SHOULD BE
GIVEN TO IT.  THIS REVIEWING COMMITTEE ALSO RECOMMENDED THAT THE
REGENTS NOT ACCEPT THE GRIEVANCE COMMITTEE'S RECOMMENDATION OF A SIX
MONTHS' SUSPENSION BUT INSTEAD GIVE NO SUSPENSION AT ALL.  THE REGENTS,
HOWEVER, ACCEPTED AND SUSTAINED THE DETERMINATION OF THE GRIEVANCE
COMMITTEE.  DR. BARSKY SOUGHT REVIEW IN THE COURT OF APPEALS, BUT NEW
YORK'S HIGHEST COURT SAID IT WAS WITHOUT POWER TO REVIEW THE USE OF THE
ATTORNEY GENERAL'S LIST.  OUR RESPONSIBILITY IS, HOWEVER, BROADER.  WE
MUST PROTECT THOSE WHO COME BEFORE US FROM UNCONSTITUTIONAL DEPRIVATION
OF THEIR RIGHTS, WHETHER THE STATE COURT IS EMPOWERED TO DO SO OR NOT. 
THE RECORD SHOWS THAT THE GRIEVANCE COMMITTEE MADE A FINDING OF FACT
THAT "EVER SINCE 1947, THE REFUGEE COMMITTEE HAS BEEN LISTED AS
SUBVERSIVE BY THE ATTORNEY GENERAL OF THE UNITED STATES."  IT SEEMS
PERFECTLY NATURAL FOR THE GRIEVANCE COMMITTEE TO RELY ON THIS LIST, FOR
THE REGENTS ARE CHARGED WITH THE DUTY OF MAKING UP THEIR OWN LIST OF
"SUBVERSIVE" ORGANIZATIONS FOR THE PURPOSE OF DISMISSING TEACHERS, AND
NEW YORK LAW AUTHORIZES THE REGENTS TO MAKE USE OF THE ATTORNEY
GENERAL'S LIST.  (FN5)  DR. BARSKY HAD A CONSTITUTIONAL RIGHT TO BE
FREE OF ANY IMPUTATIONS ON ACCOUNT OF THIS ILLEGAL LIST.  THAT REASON
ALONE SHOULD IN MY JUDGMENT REQUIRE REVERSAL OF THIS CASE. 

SECOND.  EVEN IF THE EVIDENCE CONSIDERED BY THE REGENTS AND THE
GRIEVANCE COMMITTEE HAD BEEN PROPER, I WOULD STILL HAVE GRAVE DOUBTS
THAT DR. BARSKY WAS TRIED BY PROCEDURES MEETING CONSTITUTIONAL
REQUIREMENTS.  THE REGENTS WHO TRIED AND SUSPENDED HIM EXERCISE
EXECUTIVE, LEGISLATIVE AND JUDICIAL POWERS.  (FN6)  THE REGENTS HAVE
BROAD SUPERVISORY AND DISCIPLINARY CONTROLS OVER SCHOOLS, SCHOOL BOARDS
AND TEACHERS.  THEY ALSO HAVE POWERS OVER LIBRARIES AND LIBRARY BOOKS,
AND THEY CENSOR MOVIES.  (FN7)  DOCTORS, DENTISTS, VETERINARIANS,
ACCOUNTANTS, SURVEYORS, AND OTHER OCCUPATIONAL GROUPS ARE ALSO SUBJECT
TO DISCIPLINE BY THE REGENTS AND MUST OBEY THEIR RULES.  (FN8)  FOR
EXAMPLE THE DEPARTMENT OF EDUCATION, HEADED BY THE REGENTS, HAS ITS OWN
INVESTIGATORS, DETECTIVES AND LAWYERS TO GET EVIDENCE AND DEVELOP CASES
AGAINST DOCTORS.  (FN9)  PERSONS APPOINTED BY THE DEPARTMENT PREFER
CHARGES AND TESTIFY AGAINST AN ACCUSED BEFORE A COMMITTEE OF DOCTORS
APPOINTED BY THE REGENTS.  THIS COMMITTEE AFTER HEARING EVIDENCE
PRESENTED BY DEPARTMENTAL PROSECUTORS MAKES FINDINGS AND
RECOMMENDATIONS WHICH ARE REVIEWED BY ANOTHER REGENTS' COMMITTEE WITH
POWER TO MAKE ITS OWN FINDINGS AND RECOMMENDATIONS.  THEN THE REGENTS
THEMSELVES, APPARENTLY BOUND IN NO WAY BY THE RECOMMENDATIONS OF EITHER
OF THEIR COMMITTEES, MAKE THE FINAL DECISION AS TO DOCTORS'
PROFESSIONAL FATE. 

A DOCTOR IS SUBJECT TO DISCIPLINE BY THE REGENTS WHENEVER HE IS
CONVICTED OF A "CRIME" WITHIN OR WITHOUT THE STATE.  WHETHER HIS
"CRIME" IS THE MOST DEBASING OR THE MOST TRIVIAL, THE REGENTS HAVE
COMPLETE DISCRETION TO IMPOSE ANY MEASURE OF DISCIPLINE FROM MERE
REPRIMAND TO FULL REVOCATION OF THE DOCTOR'S LICENSE.  (FN10)  NO
LEGISLATIVE STANDARDS FETTER THE REGENTS IN THIS RESPECT.  AND NO COURT
IN NEW YORK CAN REVIEW THE EXERCISE OF THEIR "DISCRETION," IF IT IS
SHOWN THAT THE REGENTS HAD AUTHORITY TO IMPOSE ANY DISCIPLINE AT ALL. 
(FN11)  SHOULD THEY SEE FIT TO LET A DOCTOR REPEATEDLY GUILTY OF
SELLING NARCOTICS TO HIS PATIENTS CONTINUE TO PRACTICE, THEY COULD DO
SO AND AT THE SAME TIME BAR FOR LIFE A DOCTOR GUILTY OF A SINGLE MINOR
INFRACTION HAVING NO BEARING WHATEVER ON HIS MORAL OR PROFESSIONAL
CHARACTER.  THEY NEED GIVE NO REASONS.  INDEED THE REGENTS MIGHT
DISCIPLINE A DOCTOR FOR WHOLLY INDEFENSIBLE REASONS, SUCH AS HIS RACE,
RELIGION OR SUSPECTED POLITICAL BELIEFS, WITHOUT ANY EFFECTIVE CHECKS
ON THEIR DECISIONS. 

IN THIS CASE ONE CAN ONLY GUESS WHY THE REGENTS OVERRULED THEIR
DISCIPLINE COMMITTEE AND SUSPENDED DR. BARSKY.  OF COURSE IT MAY BE
POSSIBLE THAT THE REGENTS THOUGHT THAT EVERY DOCTOR WHO REFUSES TO
TESTIFY BEFORE A CONGRESSIONAL COMMITTEE SHOULD BE SUSPENDED FROM
PRACTICE.  (FN12) BUT SO FAR AS WE KNOW THE SUSPENSION MAY REST ON THE
BOARD'S UNPROVEN SUSPICIONS THAT DR. BARSKY HAD ASSOCIATED WITH
COMMUNISTS.  THIS LATTER GROUND, IF THE BASIS OF THE REGENTS' ACTION,
WOULD INDICATE THAT IN NEW YORK A DOCTOR'S RIGHT TO PRACTICE RESTS ON
NO MORE THAN THE WILL OF THE REGENTS.  THIS COURT, HOWEVER, SAID MANY
YEARS AGO THAT "THE NATURE AND THE THEORY OF OUR INSTITUTIONS OF
GOVERNMENT  ... DO NOT MEAN TO LEAVE ROOM FOR THE PLAY AND ACTION OF
PURELY PERSONAL AND ARBITRARY POWER  ...  . FOR, THE VERY IDEA THAT ONE
MAN MAY BE COMPELLED TO HOLD HIS LIFE, OR THE MEANS OF LIVING, OR ANY
MATERIAL RIGHT ESSENTIAL TO THE ENJOYMENT OF LIFE, AT THE MERE WILL OF
ANOTHER, SEEMS TO BE INTOLERABLE IN ANY COUNTRY WHERE FREEDOM PREVAILS
...  ."  YICK WO V. HOPKINS, 118 U.S. 356, 369-370.  (FN13) 

FN1  AND CERTAINLY SINCE OUR RECENT HOLDING IN UNITED STATES V.
RUMELY, 345 U.S. 41, IT CANNOT BE SAID THAT IT IS "FANCIFUL OR
FACTITIOUS" TO CLAIM THAT THE FIRST AMENDMENT BARS CONGRESSIONAL
COMMITTEES FROM SEEKING THE NAMES OF CONTRIBUTORS TO AN ORGANIZATION
ALLEGED TO BE ENGAGED IN "POLITICAL PROPAGANDA." 

FN2  THE UNIVERSITY OF THE STATE OF NEW YORK IS THE HISTORIC NAME OF
THE CORPORATE BODY WHICH THE REGENTS MAKE UP.  IT HAS NO FACULTY OR
STUDENTS OF ITS OWN.  SEE MCKINNEY'S N.Y.  LAWS, EDUCATION LAW, SEC.
201 ET SEQ. 

FN3  THIS COURT HAS AUTHORITATIVELY CONSTRUED THE FEDERAL OFFENSE OF
REFUSING TO COMPLY WITH A CONGRESSIONAL SUBPOENA AS INVOLVING NO MORAL
TURPITUDE.  SINCLAIR V. UNITED STATES, 279 U.S. 263, 299. 

FN4  SEE EX PARTE YOUNG, 209 U.S. 123, 148, AND OKLAHOMA OPERATING
CO. V. LOVE, 252 U.S. 331, 335-338. 

FN5  EDUCATION LAW, SEC. 3022.  SEE ADLER V. BOARD OF EDUCATION OF
THE CITY OF NEW YORK, 342 U.S. 485. 

FN6  THE NEW YORK CONSTITUTION, ART. V, SEC. 4, MAKES THE REGENTS
HEAD OF THE DEPARTMENT OF EDUCATION WITH POWER TO APPOINT AND REMOVE AT
PLEASURE A COMMISSIONER OF EDUCATION WHO IS THE DEPARTMENT'S CHIEF
ADMINISTRATIVE OFFICER.  THESE NONSALARIED REGENTS ARE ALMOST ENTIRELY
INDEPENDENT OF THE GOVERNOR, BEING ELECTED ON JOINT BALLOT OF THE TWO
HOUSES OF THE LEGISLATURE FOR THIRTEEN-YEAR TERMS.  EDUCATION LAW, SEC.
202.  EXECUTIVE POWER OVER THE STATE'S EDUCATIONAL SYSTEM IS VESTED IN
THE REGENTS BY SEC. 101 OF THE EDUCATION LAW.  SECTION 207 PROVIDES
THAT "THE REGENTS SHALL EXERCISE LEGISLATIVE FUNCTIONS CONCERNING THE
EDUCATIONAL SYSTEM OF THE STATE, DETERMINE ITS EDUCATIONAL POLICIES,
AND, EXCEPT, AS TO THE JUDICIAL FUNCTIONS OF THE COMMISSIONER OF
EDUCATION, ESTABLISH RULES FOR CARRYING INTO EFFECT THE LAWS AND
POLICIES OF THE STATE  ...  ." 

FN7  SEE EDUCATION LAW, SECS. 120 ET SEQ., 214, 215, 216, 219, 224,
245 ET SEQ., 704, 801 ET SEQ. ON MOTION PICTURE CENSORSHIP BY THE
REGENTS SEE JOSEPH BURSTYN, INC. V. WILSON, 343 U.S. 495. 

FN8  EDUCATION LAW, SECS. 211, 6501-7506.  THE PROFESSIONS OF
PHARMACY, OPTOMETRY, PODIATRY, NURSING, SHORTHAND REPORTING,
ARCHITECTURE AND ENGINEERING ARE ALSO UNDER THE REGENTS' JURISDICTION. 

FN9  FOR EXAMPLES OF ENTRAPMENT OF DOCTORS BY THE REGENTS'
INVESTIGATORS AND THE NARROWNESS OF JUDICIAL REVIEW AFFORDED ACCUSED
DOCTORS SEE WEINSTEIN V. BOARD OF REGENTS, 267 APP. DIV. 4, 44 N.Y.S.2D
917, REVERSED, 292 N.Y. 682, 56 N.E.2D 104; EPSTEIN V. BOARD OF
REGENTS, 267 APP. DIV. 27, 44 N.Y.S.2D 921, REVERSED, 295 N.Y. 154, 65
N.E.2D 756.    FN10  BARSKY V. BOARD OF REGENTS, 305 N.Y. 89, 99, 111
N.E.2D 222, 226. 

FN11  THE REGENTS, WITH THEIR MANY LAW-ENFORCEMENT DUTIES, ARE
PLAINLY NOT A JUDICIAL BODY IN THE ORDINARY SENSE, YET COURT REVIEW IS
VIRTUALLY PRECLUDED.  WHETHER DUE PROCESS OF LAW CAN BE SATISFIED IN
THIS TYPE OF CASE BY PROCEDURES FROM WHICH EFFECTIVE REVIEW BY THE
REGULAR JUDICIAL BRANCH OF THE GOVERNMENT IS BARRED IS CERTAINLY NOT
WHOLLY CLEAR.  COMPARE OHIO VALLEY WATER CO. V. BEN AVON BOROUGH, 253
U.S. 287, NG FUNG HO. V. WHITE, 259 U.S. 276 AND ST. JOSEPH STOCK YARDS
CO. V. UNITED STATES, 298 U.S. 38, WITH YAKUS V. UNITED STATES, 321
U.S. 414. 

FN12  BUT SEE NOTE 7 OF THE COURT'S OPINION. 

FN13  SEE DAVIS V. SCHNELL, 81 F. SUPP. 872, WHERE IN AN OPINION BY
MULLINS, D.J., A THREE-JUDGE DISTRICT COURT, FOLLOWING YICK WO V.
HOPKINS, STRUCK DOWN A STATE CONSTITUTIONAL PROVISION LIMITING VOTERS
TO THOSE WHO COULD "UNDERSTAND AND EXPLAIN" THE CONSTITUTION.  COUNTY
BOARDS OF REGISTRARS WERE BY STATUTE GIVEN DISCRETION TO DETERMINE
WHETHER PERSONS SEEKING TO VOTE HAD SATISFIED THE CONSTITUTIONAL
PROVISION.  JUDGE MULLINS SAID: 

"THE WORDS 'UNDERSTAND AND EXPLAIN' DO NOT PROVIDE A REASONABLE
STANDARD.  A SIMPLE TEST MAY BE GIVEN ONE APPLICANT; A LONG, TEDIOUS,
COMPLEX ONE TO ANOTHER; ONE APPLICANT MAY BE EXAMINED ON ONE ARTICLE OF
THE CONSTITUTION; ANOTHER MAY BE CALLED UPON TO 'UNDERSTAND AND
EXPLAIN' EVERY ARTICLE AND PROVISION OF THE ENTIRE INSTRUMENT. 

"TO STATE IT PLAINLY, THE SOLE TEST IS:   HAS THE APPLICANT BY ORAL
EXAMINATION OR OTHERWISE UNDERSTOOD AND EXPLAINED THE CONSTITUTION TO
THE SATISFACTION OF THE PARTICULAR BOARD?  TO STATE IT MORE PLAINLY,
THE BOARD HAS A RIGHT TO REJECT ONE APPLICANT AND ACCEPT ANOTHER,
DEPENDING SOLELY UPON WHETHER IT LIKES OR DISLIKES THE UNDERSTANDING
AND EXPLANATION OFFERED.  TO STATE IT EVEN MORE PLAINLY, THE BOARD, BY
THE USE OF THE WORDS 'UNDERSTAND AND EXPLAIN,' IS GIVEN THE ARBITRARY
POWER TO ACCEPT OR REJECT ANY PROSPECTIVE ELECTOR THAT MAY APPLY  ...
.  SUCH ARBITRARY POWER AMOUNTS TO A DENIAL OF EQUAL PROTECTION OF THE
LAW WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT  ...  ."  81 F.
SUPP., AT 878.  THIS COURT AFFIRMED WITHOUT WRITING AN OPINION OF ITS
OWN.  336 U.S. 933. 

       APPENDIX TO OPINION OF MR. JUSTICE BLACK. 

AT THE HEARING BEFORE THE SUBCOMMITTEE OF THE MEDICAL GRIEVANCE
COMMITTEE THERE WAS A GREAT DEAL OF TESTIMONY AS TO THE NATURE AND
PURPOSES OF THE JOINT ANTI-FASCIST REFUGEE COMMITTEE.  MR. TARTIKOFF,
ASSISTANT ATTORNEY GENERAL OF NEW YORK, REPRESENTING THE DEPARTMENT OF
EDUCATION, REPEATEDLY ATTEMPTED TO SHOW THAT THE COMMITTEE HAD ENGAGED
IN "SUBVERSIVE " OR "UN-AMERICAN" ACTIVITIES.  HOWEVER, HE PRESENTED NO
PROBATIVE EVIDENCE TENDING TO PROVE THIS ALLEGATION.  FINALLY, MR.
TARTIKOFF SOUGHT TO BRING OUT THAT THE COMMITTEE HAD BEEN LISTED BY THE
ATTORNEY GENERAL OF THE UNITED STATES AS "SUBVERSIVE."  EXCERPTS FROM
THE RECORD OF HIS QUESTIONING OF DR. BARSKY ON THIS POINT ARE QUOTED
BELOW. 

MR. TARTIKOFF:  RESUMING: 

"Q.  DOCTOR, IS IT NOT A FACT THAT ON OR ABOUT NOVEMBER 24, 1947, THE
ATTORNEY GENERAL OF THE UNITED STATES, IN PURSUANCE OF A DIRECTIVE
CONTAINED IN AN EXECUTIVE ORDER OF THE PRESIDENT OF THE UNITED STATES
LISTED AND PUBLISHED A CLASSIFICATION OF ORGANIZATIONS DEEMED TO BE
SUBVERSIVE AND UN-AMERICAN, AND THAT INCLUDED AMONGST THOSE
ORGANIZATIONS AT THAT TIME BY THE ATTORNEY GENERAL DEEMED TO BE
SUBVERSIVE AND UN-AMERICAN WAS THE JOINT ANTI-FASCIST REFUGEE
COMMITTEE?" 

AT THIS POINT MR. FISHBEIN, DR. BARSKY'S ATTORNEY, OBJECTED TO THE
QUESTION.  AFTER A BRIEF COLLOQUY BETWEEN COUNSEL THE RECORD
CONTINUES: 

"MR. TARTIKOFF:  I THINK THIS COMMITTEE IS ENTITLED TO KNOW WHETHER
THIS ORGANIZATION IS LISTED BY THE ATTORNEY GENERAL OF THE UNITED
STATES AS BEING SUBVERSIVE AND UN-AMERICAN, PARTICULARLY IN LIGHT OF
DR. BARSKY'S TESTIMONY THAT THE ACTIVITY OF THE ORGANIZATION SINCE ITS
INCEPTION IN 1942 DOWN TO AND INCLUDING THROUGH 1950 HAS BEEN
SUBSTANTIALLY THE SAME DURING THAT PERIOD OF TIME." 

AFTER FURTHER DISCUSSION: 

"MR. TARTIKOFF:  YOU HAVE INTRODUCED DOCUMENT AFTER DOCUMENT TO SHOW
THIS IS ONE OF THE FINEST ORGANIZATIONS IN THE WORLD.  I THINK I AM
ENTITLED TO COUNTER THAT WITH EVIDENCE THAT THE ATTORNEY GENERAL OF THE
UNITED STATES REVIEWED THE ACTIVITIES OF THIS ORGANIZATION IN WHATEVER
FASHION HE IS SUPPOSED TO REVIEW IT AND HAS COME TO AN OPPOSITE
CONCLUSION." 

SHORTLY AFTER, DR. SHEARER, THE SUBCOMMITTEE CHAIRMAN, OVERRULED MR.
FISHBEIN'S OBJECTION, AND THE HEARING PROCEEDED AS FOLLOWS: 

"MR. TARTIKOFF:  RESUMING: 

"Q.  WAS IT SO LISTED, DR. BARSKY? 

"A.  MR. TARTIKOFF, THE ATTORNEY: 

"Q.  QUESTION:  WAS IT SO LISTED?  THAT CAN TAKE A 'YES' OR 'NO'
ANSWER. 

"A.  I JUST WOULD LIKE TO BRING UP: 

"MR. TARTIKOFF: 

"I ASK THE COMMITTEE TO DIRECT HIM TO ANSWER THAT QUESTION 'YES' OR
'NO.' 

"CHAIRMAN SHEARER:  'YES' OR 'NO,' DOCTOR BARSKY. 

"A.  IF I MAY FOR A MOMENT, - OFF THE RECORD: 

"Q.  DOCTOR, WILL YOU PLEASE ANSWER THE QUESTION? 

"A.  THE ANSWER TO THE QUESTION IS 'YES.' 

"Q.  AND WAS IT NOT AGAIN SO LISTED BY THE ATTORNEY GENERAL OF THE
UNITED STATES IN A RELEASE MADE ON MAY 27, 1948? 

"A.  THE ANSWER IS I REALLY DON'T KNOW.  YOU HAVE THE STATEMENT. 

"Q.  IF I TELL YOU THAT THE STATEMENT SO INDICATES, WOULD YOU DISPUTE
IT? 

"A.  I CERTAINLY WOULD NOT, MR. TARTIKOFF. 

"Q.  AND ISN'T IT A FACT THAT IT WAS AGAIN SO LISTED ON APRIL 21,
1949, JULY 20, 1949, SEPTEMBER 26, 1949, AUGUST 24, 1950, AND SEPTEMBER
5, 1950? 

"A.  I THINK YOU BROUGHT OUT THE SAME LIST, MR. TARTIKOFF. 

"Q.  WELL, THERE MAY HAVE BEEN ADDITIONAL ONES ADDED, FOR YOUR
INFORMATION. 

"A.  I REALLY DON'T REMEMBER. 

"Q.  AND DOCTOR, DIDN'T YOU AS CHAIRMAN OF THE JOINT ANTI-FASCIST
REFUGEE BRING A PROCEEDING AGAINST THE ATTORNEY GENERAL IN THE UNITED
STATES COURTS? 

"A.  YES, SIR. 

"Q.  TO RESTRAIN HIM FROM LISTING YOUR ORGANIZATION AS SUBVERSIVE? 

"A.  YES, SIR. 

"Q.  AND ISN'T IT A FACT THAT THE CIRCUIT COURT RULED AGAINST YOU ON
THAT ON AUGUST 11, 1949? 

"A.  YES, SIR." 

LATER, AFTER DR. BARSKY HAD ASKED THE SUBCOMMITTEE NOT TO "LAY TOO
MUCH STRESS ON THE FACT THAT THIS LIST WAS MADE," MR. TARTIKOFF ASKED
HIM THESE QUESTIONS: 

"Q.  WASN'T THERE ALSO AN INVESTIGATION IN CALIFORNIA BY A COMMITTEE
ON UN-AMERICAN ACTIVITIES? 

"A.  THE HOUSE COMMITTEE? 

"Q.  THE LEGISLATIVE COMMITTEE IN CALIFORNIA.  A LEGISLATIVE
COMMITTEE OF THE STATE OF CALIFORNIA, AND DIDN'T THEY LIKEWISE LIST
YOUR ORGANIZATION AS COMMUNISTIC? 

"A.  WHAT DO YOU MEAN? 

"Q.  THE CALIFORNIA COMMITTEE ON UN-AMERICAN ACTIVITIES, THAT'S THE
TENNEY COMMITTEE, DID THEY LIST YOUR ORGANIZATION AS COMMUNISTIC? 

"A.  I REALLY DON'T KNOW.  IF YOU HAVE THE RECORD - ." 

MR. JUSTICE FRANKFURTER, DISSENTING. 

WHILE IN SUBSTANTIAL AGREEMENT WITH WHAT IS SAID IN THE COURT'S
OPINION, I AM CONSTRAINED TO DISSENT BECAUSE OF WHAT IS LEFT UNSAID. 

APPELLANT'S SUSPENSION FROM THE PRACTICE OF MEDICINE GREW OUT OF HIS
CONVICTION FOR REFUSING TO TURN OVER TO THE HOUSE UN-AMERICAN
ACTIVITIES COMMITTEE DOCUMENTS OF THE JOINT ANTI-FASCIST REFUGEE
COMMITTEE, AN ORGANIZATION OF WHICH APPELLANT WAS CHAIRMAN.  THE
MEDICAL SUBCOMMITTEE ON GRIEVANCES OF THE NEW YORK BOARD OF REGENTS,
WHICH HELD THE ORIGINAL HEARING IN THE DISCIPLINARY PROCEEDING NOW
BEFORE US, ALLOWED COUNSEL FOR THE REGENTS TO INTRODUCE EVIDENCE THAT
THIS JOINT ANTI-FASCIST REFUGEE COMMITTEE WAS IN 1947 LISTED BY THE
ATTORNEY GENERAL OF THE UNITED STATES AS A SUBVERSIVE ORGANIZATION, AND
THE SUBCOMMITTEE ACCORDINGLY MADE A SPECIFIC FINDING TO THIS EFFECT IN
ITS REPORT.  THIS EVIDENCE WAS OBVIOUSLY IRRELEVANT TO THE ISSUE BEFORE
THE COMMITTEE - WHETHER APPELLANT HAD BEEN CONVICTED OF A CRIME - AND
WAS ALSO OBVIOUSLY EXTREMELY PREJUDICIAL TO APPELLANT.  THE REGENTS'
COMMITTEE ON DISCIPLINE, REVIEWING THE GRIEVANCE COMMITTEE, COMMENTED
AS FOLLOWS ON THIS MATTER: 

"THERE IS, IT SHOULD BE NOTED, EVIDENCE IN THE RECORD, AND RELIANCE
ON THAT EVIDENCE IN THE FINDINGS OF THE MEDICAL COMMITTEE ON
GRIEVANCES, THAT THE REFUGEE COMMITTEE HAD BEEN LISTED AS COMMUNIST IN
THE LIST FURNISHED BY THE ATTORNEY GENERAL OF THE UNITED STATES  ...  .
IN VIEW OF THE DECISION IN JOINT ANTI-FASCIST REFUGEE COMMITTEE V.
MCGRATH, 341 U.S. 123, NO EVIDENTIARY WEIGHT CAN BE GIVEN IN THE
PRESENT PROCEEDING TO THE LISTING BY THE ATTORNEY GENERAL." 

THE COMMITTEE ON DISCIPLINE CONCLUDED THAT APPELLANT SHOULD NOT BE
SUSPENDED FOR SIX MONTHS, AS THE GRIEVANCE COMMITTEE HAD RECOMMENDED,
BUT SHOULD ONLY BE REPRIMANDED.  IN FACE OF THIS RECOMMENDATION, THE
BOARD OF REGENTS, WITHOUT STATING ANY REASONS, ACCEPTED THE DECISION OF
THE GRIEVANCE COMMITTEE AND ORDERED APPELLANT SUSPENDED FOR A PERIOD OF
SIX MONTHS FROM HIS RIGHT TO PRACTICE MEDICINE. 

WHEN THIS QUESTION CAME BEFORE THE NEW YORK COURT OF APPEALS, THAT
COURT DISPOSED OF THE ISSUE AS FOLLOWS: 

"AS TO THE ASSERTIONS, BY APPELLANTS  ...  THAT THE REGENTS, IN
DECIDING ON PUNISHMENT, IGNORED WEIGHTY CONSIDERATIONS AND ACTED ON
MATTERS NOT PROPER FOR CONSIDERATION, IT IS ENOUGH TO SAY THAT WE ARE
WHOLLY WITHOUT JURISDICTION TO REVIEW SUCH QUESTIONS  ...  ."  305 N.Y.
89, 99, 111 N.E.2D 222, 226. 

THUS THE HIGHEST COURT OF THE STATE OF NEW YORK TELLS US, IN EFFECT,
"YES, IT MAY BE THAT THE REGENTS ARBITRARILY DEPRIVED A DOCTOR OF HIS
LICENSE TO PRACTICE MEDICINE, BUT THE COURTS OF NEW YORK CAN DO NOTHING
ABOUT IT."  SUCH A RULE OF LAW, BY DENYING ALL RELIEF FROM ARBITRARY
ACTION, IMPLICITLY SANCTIONS IT; AND DEPRIVATION OF INTERESTS THAT ARE
PART OF A MAN'S LIBERTY AND PROPERTY, WHEN BASED ON SUCH ARBITRARY
GROUNDS, CONTRAVENES THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. 

OF COURSE A STATE MUST HAVE THE WIDEST LEEWAY IN DEALING WITH AN
INTEREST SO BASIC TO ITS WELL-BEING AS THE HEALTH OF ITS PEOPLE.  THIS
INCLUDES THE SETTING OF STANDARDS, NO MATTER HOW HIGH, FOR MEDICAL
PRACTITIONERS, AND THE LAYING DOWN OF PROCEDURES FOR ENFORCEMENT, NO
MATTER HOW STRICT.  THE GRANTING OF LICENSES TO PRACTICE MEDICINE AND
THE CURTAILMENT OR REVOCATION OF SUCH LICENSES MAY NATURALLY BE
ENTRUSTED TO THE SOUND DISCRETION OF AN ADMINISTRATIVE AGENCY.  AND
WHILE ORDINARY CONSIDERATIONS OF FAIRNESS AND GOOD SENSE MAY MAKE IT
DESIRABLE FOR A STATE TO REQUIRE THAT THE REVOCATION OR TEMPORARY
SUSPENSION OF A MEDICAL LICENCE BE JUSTIFIED BY STATED REASONS, THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT LAY UPON THE STATES
THE DUTY OF EXPLAINING PRESUMABLY CONSCIENTIOUS ACTION BY APPROPRIATE
STATE AUTHORITIES.  DOUGLAS V. NOBLE, 261 U.S. 165, 169-170.  RELIANCE
ON THE GOOD FAITH OF A STATE AGENCY ENTRUSTED WITH THE ENFORCEMENT OF
APPROPRIATE STANDARDS FOR THE PRACTICE OF MEDICINE IS NOT IN ITSELF AN
INVESTITURE OF ARBITRARY POWER OFFENSIVE TO DUE PROCESS.  LIKEWISE
THERE IS NOTHING IN THE UNITED STATES CONSTITUTION WHICH REQUIRES A
STATE TO PROVIDE FOR JUDICIAL REVIEW OF THE ACTION OF SUCH AGENCIES. 
FINALLY, WHEN A STATE DOES ESTABLISH SOME SORT OF JUDICIAL REVIEW, IT
CAN CERTAINLY PROVIDE THAT THERE BE NO REVIEW OF AN AGENCY'S
DISCRETION, SO LONG AS THAT DISCRETION WAS EXERCISED WITHIN THE GAMUT
OF CHOICES, HOWEVER EXTENSIVE, RELEVANT TO THE PURPOSE OF THE POWER
GIVEN THE ADMINISTRATIVE AGENCY.  SO FAR AS CONCERNS THE POWER TO GRANT
OR REVOKE A MEDICAL LICENSE, THAT MEANS THAT THE EXERCISE OF THE
AUTHORITY MUST HAVE SOME RATIONAL RELATION TO THE QUALIFICATIONS
REQUIRED OF A PRACTITIONER IN THAT PROFESSION. 

IT IS ONE THING THUS TO RECOGNIZE THE FREEDOM WHICH THE CONSTITUTION
WISELY LEAVES TO THE STATES IN REGULATING THE PROFESSIONS.  IT IS QUITE
ANOTHER THING, HOWEVER, TO SANCTION A STATE'S DEPRIVATION OR PARTIAL
DESTRUCTION OF A MAN'S PROFESSIONAL LIFE ON GROUNDS HAVING NO POSSIBLE
RELATION TO FITNESS, INTELLECTUAL OR MORAL, TO PURSUE HIS PROFESSION. 
IMPLICIT IN THE GRANT OF DISCRETION TO A STATE'S MEDICAL BOARD IS THE
QUALIFICATION THAT IT MUST NOT EXERCISE ITS SUPERVISORY POWERS ON
ARBITRARY, WHIMSICAL OR IRRATIONAL CONSIDERATIONS.  A LICENSE CANNOT BE
REVOKED BECAUSE A MAN IS REDHEADED OR BECAUSE HE WAS DIVORCED, EXCEPT
FOR A CALLING, IF SUCH THERE BE, FOR WHICH REDHEADEDNESS OR AN UNBROKEN
MARRIAGE MAY HAVE SOME RATIONAL BEARING.  IF A STATE LICENSING AGENCY
LAYS BARE ITS ARBITRARY ACTION, OR IF THE STATE LAW EXPLICITLY ALLOWS
IT TO ACT ARBITRARILY, THAT IS PRECISELY THE KIND OF STATE ACTION WHICH
THE DUE PROCESS CLAUSE FORBIDS.  SEE PERKINS V. ELG, 307 U.S. 325, 349
350; ALSO REX V. NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL, (1951) 1
K.B. 711.  THE LIMITATION AGAINST ARBITRARY ACTION RESTRICTS THE POWER
OF A STATE "NO MATTER BY WHAT ORGAN IT ACTS."  MISSOURI V. DOCKERY, 191
U.S. 165, 171. 

IF THE REGENTS HAD EXPLICITLY STATED THAT THEY SUSPENDED APPELLANT'S
LICENSE OR LENGTHENED THE TIME OF THE SUSPENSION BECAUSE HE WAS A
MEMBER OF AN ORGANIZATION ON THE SO-CALLED ATTORNEY GENERAL'S LIST, AND
THE NEW YORK COURT OF APPEALS HAD DECLARED THAT NEW YORK LAW ALLOWS
SUCH ACTION, IT IS NOT TOO MUCH TO BELIEVE THAT THIS COURT WOULD HAVE
FELT COMPELLED TO HOLD THAT THE DUE PROCESS CLAUSE DISALLOWS IT.  SEE
JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, 341 U.S. 123, 104 F.
SUPP. 567.  YET THAT IS PRECISELY WHAT WE MAY HAVE HERE.  IT BEARS
REPEATING THAT THE COURT OF APPEALS, THE ULTIMATE VOICE OF NEW YORK
LAW, FOUND ITSELF IMPOTENT TO GIVE RELIEF ON APPELLANT'S CLAIM THAT THE
REGENTS "IN DECIDING ON PUNISHMENT, IGNORED WEIGHTY CONSIDERATIONS AND
ACTED ON MATTERS NOT PROPER FOR CONSIDERATION."  305 N.Y. 89, 99, 111
N.E.2D 222, 226.  AT THE VERY LEAST, FOR ALL THAT APPEARS, THE COURT OF
APPEALS ASSUMED THAT THE REGENTS RELIED "ON MATTERS NOT PROPER FOR
CONSIDERATION."  THUS THE APPELLANT MAY HAVE BEEN DEPRIVED OF THE
LIBERTY TO PRACTICE HIS PROFESSION AND OF HIS PROPERTY INTERESTS IN HIS
PROFESSION IN CONTRAVENTION OF DUE PROCESS.  THIS IS NOT A MERELY
ABSTRACT POSSIBILITY.  THE "PUNISHMENT" - THE COURT OF APPEALS SO
CHARACTERIZED IT - RECOMMENDED BY THE GRIEVANCE COMMITTEE RESTED
CERTAINLY IN PART ON ARBITRARY CONSIDERATIONS, AND THE BOARD OF REGENTS
APPEARS TO HAVE ADOPTED THIS TAINTED "DETERMINATION."  SINCE THE
DECISION BELOW MAY REST ON A CONSTITUTIONALLY INADMISSIBLE GROUND, THE
JUDGMENT SHOULD NOT STAND.  STROMBERG V. CALIFORNIA, 283 U.S. 359, 368;
WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 292.    I WOULD RETURN THIS
CASE TO THE NEW YORK AUTHORITIES FOR RECONSIDERATION IN LIGHT OF THE
VIEWS HERE EXPRESSED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

MR. JUSTICE HOLMES, WHILE A MEMBER OF THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS, COINED A DICTUM THAT HAS PERNICIOUS IMPLICATIONS.  "THE
PETITIONER MAY HAVE A CONSTITUTIONAL RIGHT TO TALK POLITICS," HE SAID,
"BUT HE HAS NO CONSTITUTIONAL RIGHT TO BE A POLICEMAN."  SEE MCAULIFFE
V. NEW BEDFORD, 155 MASS. 216, 220, 29 N.E. 517.  BY THE SAME REASONING
A MAN HAS NO CONSTITUTIONAL RIGHT TO TEACH, TO WORK IN A FILLING
STATION, TO BE A GROCERY CLERK, TO MINE COAL, TO TEND A FURNACE, OR TO
BE ON THE ASSEMBLY LINE.  BY THAT REASONING A MAN HAS NO CONSTITUTIONAL
RIGHT TO WORK. 

THE RIGHT TO WORK, I HAD ASSUMED, WAS THE MOST PRECIOUS LIBERTY THAT
MAN POSSESSES.  MAN HAS INDEED AS MUCH RIGHT TO WORK AS HE HAS TO LIVE,
TO BE FREE, TO OWN PROPERTY.  THE AMERICAN IDEAL WAS STATED BY EMERSON
IN HIS ESSAY ON POLITICS, "A MAN HAS A RIGHT TO BE EMPLOYED, TO BE
TRUSTED, TO BE LOVED, TO BE REVERED."  IT DOES MANY MEN LITTLE GOOD TO
STAY ALIVE AND FREE AND PROPERTIED, IF THEY CANNOT WORK.  TO WORK MEANS
TO EAT.  IT ALSO MEANS TO LIVE.  FOR MANY IT WOULD BE BETTER TO WORK IN
JAIL, THAN TO SIT IDLE ON THE CURB.  THE GREAT VALUES OF FREEDOM ARE IN
THE OPPORTUNITIES AFFORDED MAN TO PRESS TO NEW HORIZONS, TO PIT HIS
STRENGTH AGAINST THE FORCES OF NATURE, TO MATCH SKILLS WITH HIS FELLOW
MAN. 

THE DICTUM OF HOLMES GIVES A DISTORTION TO THE BILL OF RIGHTS.  IT IS
NOT AN INSTRUMENT OF DISPENSATION BUT ONE OF DETERRENTS.  CERTAINLY A
MAN HAS NO AFFIRMATIVE RIGHT TO ANY PARTICULAR JOB OR SKILL OR
OCCUPATION.  THE BILL OF RIGHTS DOES NOT SAY WHO SHALL BE DOCTORS OR
LAWYERS OR POLICEMEN.  BUT IT DOES SAY THAT CERTAIN RIGHTS ARE
PROTECTED, THAT CERTAIN THINGS SHALL NOT BE DONE.  AND SO THE QUESTION
HERE IS NOT WHAT GOVERNMENT MUST GIVE, BUT RATHER WHAT IT MAY NOT TAKE
AWAY. 

THE BILL OF RIGHTS PREVENTS A PERSON FROM BEING DENIED EMPLOYMENT AS
A TEACHER WHO THOUGH A MEMBER OF A "SUBVERSIVE" ORGANIZATION IS WHOLLY
INNOCENT OF ANY UNLAWFUL PURPOSE OR ACTIVITY.  WIEMAN V. UPDEGRAFF, 344
U.S. 183.  IT PREVENTS A TEACHER FROM BEING PUT IN A LOWER SALARY SCALE
THAN WHITE TEACHERS SOLELY BECAUSE HE IS A NEGRO.  ALSTON V. SCHOOL
BOARD, 112 F.2D 992.  THOSE CASES ILLUSTRATE THE REAL SIGNIFICANCE OF
OUR BILL OF RIGHTS.  (FN1) 

SO FAR AS WE CAN TELL ON THE PRESENT RECORD, DR. BARSKY'S LICENSE TO
PRACTICE MEDICINE HAS BEEN SUSPENDED, NOT BECAUSE HE WAS A CRIMINAL,
NOT BECAUSE HE WAS A COMMUNIST, NOT BECAUSE HE WAS A "SUBVERSIVE," BUT
BECAUSE HE HAD CERTAIN UNPOPULAR IDEAS AND BELONGED TO AND WAS AN
OFFICER OF THE JOINT ANTI-FASCIST REFUGEE COMMITTEE, WHICH WAS INCLUDED
IN THE ATTORNEY GENERAL'S "LIST."  IF, FOR THE SAME REASON, NEW YORK
HAD ATTEMPTED TO PUT DR. BARSKY TO DEATH OR TO PUT HIM IN JAIL OR TO
TAKE HIS PROPERTY, THERE WOULD BE A FLAGRANT VIOLATION OF DUE PROCESS. 
I DO NOT UNDERSTAND THE REASONING WHICH HOLDS THAT THE STATE MAY NOT DO
THESE THINGS, BUT MAY NEVERTHELESS SUSPEND DR. BARSKY'S POWER TO
PRACTICE HIS PROFESSION.  I REPEAT, IT DOES A MAN LITTLE GOOD TO STAY
ALIVE AND FREE AND PROPERTIED, IF HE CANNOT WORK. 

THE DISTINCTION BETWEEN THE STATE'S POWER TO LICENSE DOCTORS AND TO
LICENSE STREET VENDORS IS ONE OF DEGREE.  THE FACT THAT A DOCTOR NEEDS
A GOOD KNOWLEDGE OF BIOLOGY IS NO EXCUSE FOR SUSPENDING HIS LICENSE
BECAUSE HE HAS LITTLE OR NO KNOWLEDGE OF CONSTITUTIONAL LAW.  IN THIS
CASE IT IS ADMITTED THAT DR. BARSKY'S "CRIME" CONSISTED OF NO MORE THAN
A JUSTIFIABLE MISTAKE CONCERNING HIS CONSTITUTIONAL RIGHTS.  (FN2)
SUCH CONDUCT IS NO CONSTITUTIONAL GROUND FOR TAKING AWAY A MAN'S RIGHT
TO WORK.  THE ERROR IS COMPOUNDED WHERE, AS HERE, THE SUSPENSION OF THE
RIGHT TO PRACTICE HAS BEEN BASED ON DR. BARSKY'S UNPOPULAR BELIEFS AND
ASSOCIATIONS.  AS JUDGE FULD, DISSENTING IN THE NEW YORK COURT OF
APPEALS, MAKES CLEAR, THIS RECORD IS "BARREN OF EVIDENCE REFLECTING
UPON APPELLANT AS MAN OR A CITIZEN, MUCH LESS ON HIS PROFESSIONAL
CAPACITY OR HIS PAST OR ANTICIPATED CONDUCT TOWARD HIS PATIENTS."  305
N.Y. 89, AT 102, 111 N.E.2D 222, AT 228-229. 

NEITHER THE SECURITY OF THE STATE NOR THE WELL-BEING OF HER CITIZENS
JUSTIFIES THIS INFRINGEMENT OF FUNDAMENTAL RIGHTS.  SO FAR AS I KNOW,
NOTHING IN A MAN'S POLITICAL BELIEFS DISABLES HIM FROM SETTING BROKEN
BONES OR REMOVING RUPTURED APPENDIXES, SAFELY AND EFFICIENTLY.  A
PRACTICING SURGEON IS UNLIKELY TO UNCOVER MANY STATE SECRETS IN THE
COURSE OF HIS PROFESSIONAL ACTIVITIES.  WHEN A DOCTOR CANNOT SAVE LIVES
IN AMERICA BECAUSE HE IS OPPOSED TO FRANCO IN SPAIN, IT IS TIME TO CALL
A HALT AND LOOK CRITICALLY AT THE NEUROSIS THAT HAS POSSESSED US. 

FN1  AS TO THE RIGHT TO WORK, SEE ALSO CUMMINGS V. MISSOURI, 4 WALL. 
277; EX PARTE GARLAND, 4 WALL.  333; YICK WO V. HOPKINS, 118 U.S. 356;
TRUAX V. RAICH, 239 U.S. 33; TAKAHASHI V. FISH AND GAME COMMISSION, 334
U.S. 410. 

FN2  DR. BARSKY WAS CONVICTED FOR FAILURE TO PRODUCE CERTAIN
DOCUMENTS SUBPOENAED BY A CONGRESSIONAL COMMITTEE.  AT A HEARING BEFORE
THE REGENTS' COMMITTEE ON DISCIPLINE, THE ASSISTANT ATTORNEY GENERAL
REPRESENTING THE STATE CONCEDED THAT DR. BARSKY HAD ACTED ON THE ADVICE
OF COUNSEL.   HE CONCEDED THAT "THE ADVICE GIVEN TO DR. BARSKY BY THE
ATTORNEY, MR. WOLF, WAS NOT AN OPINION WHICH HE HELD ALONE; NOR WAS IT
AT THAT TIME AN UNREASONABLE CONSTRUCTION OF LAW ON HIS PART."  THE
ADVICE GIVEN WAS THAT THE SUBPOENAS WERE UNCONSTITUTIONALLY ISSUED AND
THAT DR. BARSKY WAS NOT LEGALLY REQUIRED TO RESPOND.  THE ASSISTANT
ATTORNEY GENERAL ADMITTED THAT THIS OPINION WAS HELD BY MANY LAWYERS
AND BY SOME JUDGES.  THE COMMITTEE ON DISCIPLINE POINTED OUT THAT
REFUSAL TO PRODUCE THE SUBPOENAED RECORDS WAS "THE ONLY METHOD BY WHICH
THE LEGAL OBJECTIONS TO THE CONGRESSIONAL COMMITTEE'S COURSE COULD BE
JUDICIALLY DETERMINED." 
..END :




















MARYLAND CASUALTY CO. V. CUSHING 347 U.S. 409 


NO. 11.  ARGUED APRIL 27-28, 1953 - REARGUED NOVEMBER 10, 12, 1953 -
DECIDED APRIL 12, 1954 - 198 F.2D 536, JUDGMENT VACATED AND CAUSE
REMANDED. 


THE OWNER AND CHARTERER OF A VESSEL, WHICH COLLIDED WITH A PIER AND
CAPSIZED IN NAVIGABLE WATERS IN LOUISIANA, FILED CONSOLIDATED PETITIONS
IN ADMIRALTY IN THE FEDERAL DISTRICT COURT IN LOUISIANA TO LIMIT THEIR
LIABILITY UNDER THE PROVISIONS OF 46 U.S.C.  SECS. 183 AND 186. 
SUBSEQUENTLY, BASING JURISDICTION ON DIVERSITY OF CITIZENSHIP AND THE
JONES ACT, THE REPRESENTATIVES OF FIVE SEAMEN WHO HAD DROWNED BROUGHT
THIS CONSOLIDATED ACTION IN THE SAME DISTRICT COURT AGAINST THE
LIABILITY UNDERWRITERS OF THE OWNER AND CHARTERER OF THE VESSEL.  FOR
THEIR RIGHT TO PROCEED AGAINST THE INSURANCE COMPANIES, THE PLAINTIFFS
RELIED ON SEC. 655 OF THE LOUISIANA INSURANCE CODE WHICH AUTHORIZES
DIRECT SUIT "AGAINST THE INSURER WITHIN THE TERMS AND LIMITS OF THE
POLICY," AND ON THE MCCARRAN ACT, 15 U.S.C. SEC. 1012.  THE DISTRICT
COURT DISMISSED THE CONSOLIDATED SUIT AGAINST THE INSURERS.  THE COURT
OF APPEALS REVERSED.  HELD: THE JUDGMENT OF THE COURT OF APPEALS IS
VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT TO BE CONTINUED
UNTIL AFTER THE COMPLETION OF THE LIMITATION PROCEEDING.  PP. 410-427. 

MARYLAND CASUALTY CO. ET AL. V. CUSHING ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE DISTRICT COURT DISMISSED A CONSOLIDATED SUIT BROUGHT BY
RESPONDENTS AGAINST THE PETITIONER INSURANCE COMPANIES.  99 F. SUPP.
681.  THE COURT OF APPEALS REVERSED.  198 F.2D 536.  THIS COURT GRANTED
CERTIORARI.  345 U.S. 902.  JUDGMENT OF THE COURT OF APPEALS VACATED
AND CAUSE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS, P. 423. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE REED, MR. JUSTICE JACKSON AND MR. JUSTICE
BURTON JOIN. 

ON THE EVENING OF MAY 19, 1950, THE TOWBOAT JANE SMITH IN ATTEMPTING
TO PASS UNDER A BRIDGE OVER THE ATCHAFALAYA RIVER IN LOUISIANA COLLIDED
WITH A CONCRETE PIER AND CAPSIZED.  THE OWNER AND CHARTERER OF THE JANE
SMITH FILED CONSOLIDATED PETITIONS IN ADMIRALTY IN THE UNITED STATES
DISTRICT COURT IN LOUISIANA TO LIMIT THEIR LIABILITY UNDER THE
PROVISIONS OF 46 U.S.C. SECS. 183 AND 186.  (FN1)  THE OWNER AND
CHARTERER HAVING COMPLIED WITH THE PROCEDURAL REQUIREMENTS OF THE
LIMITATION ACT, THE DISTRICT COURT ISSUED AN INJUNCTION PROHIBITING
SUIT AGAINST THEM ELSEWHERE THAN IN THE LIMITATION PROCEEDING. 

SUBSEQUENTLY, IN THE SAME DISTRICT COURT, THE PLAINTIFFS BELOW, AS
REPRESENTATIVES OF FIVE SEAMEN WHO HAD BEEN DROWNED, BROUGHT THIS
CONSOLIDATED ACTION AGAINST THE OWNER OF THE BRIDGE AND THE LIABILITY
UNDERWRITERS OF THE OWNER AND CHARTERER OF THE SHIP.  (FN2)
JURISDICTION WAS BASED ON DIVERSITY OF CITIZENSHIP AND THE JONES ACT,
46 U.S.C. SEC. 688.  FOR THEIR RIGHT TO PROCEED AGAINST THE INSURANCE
COMPANIES, THE PLAINTIFFS RELIED ON SEC. 655 OF THE LOUISIANA INSURANCE
CODE WHICH AUTHORIZES DIRECT SUIT "AGAINST THE INSURER WITHIN THE TERMS
AND LIMITS OF THE POLICY." 

THE TWO POLICIES SUED UPON ARE (1) A WORKMEN'S COMPENSATION AND
EMPLOYER'S LIABILITY POLICY, IN THE AMOUNT OF $10,000, ISSUED BY THE
MARYLAND CASUALTY CO. IN WHICH THE CHARTERER ALONE IS NAMED AS THE
INSURED AND WHICH CONTAINS A SPECIAL ENDORSEMENT MAKING ITS TERMS
APPLICABLE TO MARITIME EMPLOYMENT; AND (2) A "PROTECTION AND INDEMNITY"
POLICY IN THE AMOUNT OF $170,000 ISSUED BY THE HOME INSURANCE COMPANY
OF NEW YORK IN WHICH BOTH THE OWNER AND THE CHARTERER ARE NAMED.  BOTH
POLICIES BY THEIR TERMS PRECLUDE PAYMENT TO ANYONE UNTIL THE INSURED
SHALL HAVE BEEN HELD LIABLE TO PAY DAMAGES.   (FN3) 

THE DISTRICT COURT GRANTED A MOTION FOR SUMMARY JUDGMENT DISMISSING
THE CONSOLIDATED SUIT AGAINST THE INSURERS ON THE GROUNDS THAT THE
LOUISIANA STATUTE WAS, BY ITS OWN TERMS, INAPPLICABLE TO POLICIES OF
MARINE INSURANCE, AND THAT IN ANY CASE APPLICATION OF THE STATUTE HERE
WOULD "NOT ONLY WORK MATERIAL PREJUDICE TO THE CHARACTERISTIC FEATURES
OF THE GENERAL MARITIME LAW BUT WOULD ALSO CONTRAVENE THE ESSENTIAL
PURPOSE EXPRESSED BY AN ACT OF CONGRESS IN A FIELD ALREADY COVERED BY
THAT ACT.  TITLE 46, SEC. 183, U.S.C.A."  99 F. SUPP. 681, 684. 

THE COURT OF APPEALS, RELYING SOLELY ON DIVERSITY JURISDICTION,
REVERSED, HOLDING THAT AS A MATTER OF LOCAL LAW THE DISTRICT COURT HAD
READ THE LOUISIANA STATUTE TOO RESTRICTIVELY, A QUESTION NOT OPEN HERE,
AND THAT THE STATUTE WAS NOTHING MORE THAN A PERMISSIBLE REGULATION OF
INSURANCE AUTHORIZED BY THE MCCARRAN ACT, 15 U.S.C. SEC. 1012, AND NOT
IN "CONFLICT WITH ANY FEATURE OF SUBSTANTIVE ADMIRALTY LAW, NOR WITH
ANY REMEDY PECULIAR TO ADMIRALTY JURISDICTION."  198 F.2D 536, 539. 
DEEMING THIS RULING IMPORTANT TO THE PROPER ENFORCEMENT OF THE
LIMITATION ACT, WE GRANTED CERTIORARI.  345 U.S. 902. 

THE ONLY QUESTION PRESENTED IN THE PETITION FOR CERTIORARI IS WHETHER
THE APPLICATION OF THE LOUISIANA STATUTE IN THIS CASE WOULD VIOLATE
"THE JONES ACT, THE LIMITED LIABILITY ACT AND THE CONSTITUTIONAL GRANT
TO THE FEDERAL GOVERNMENT OF EXCLUSIVE JURISDICTION IN MARITIME
MATTERS."  WE AGREE WITH THE COURT OF APPEALS THAT SINCE DIVERSITY
SUPPORTS FEDERAL JURISDICTION, THE JONES ACT NEED NOT BE DRAWN UPON FOR
JURISDICTION.  NOR NEED WE BE DETAINED BY PETITIONERS' CONTENTION THAT
AS APPLIED TO CLAIMS AGAINST PETITIONERS AS UNDERWRITERS OF THE
CHARTERER WHO EMPLOYED THE DECEDENTS, THE STATE STATUTE HERE CONFLICTS
WITH THE JONES ACT IN THAT IT WOULD PROVIDE AN ALTERNATIVE REMEDY WHERE
CONGRESS HAS PRESCRIBED THE MEANS OF RECOVERY.  SINCE THAT ACT ITSELF
MAKES ITS REMEDY AVAILABLE TO A SEAMAN "AT HIS ELECTION," WE PERCEIVE
NO CONFLICT BETWEEN THE JONES ACT AND THE LOUISIANA DIRECT ACTION
STATUTE. 

RESPONDENTS, ON THE OTHER HAND, SEEK TO DERIVE SUPPORT FOR RELIANCE
ON THE LOUISIANA STATUTE FROM THE MCCARRAN ACT WHICH PROVIDES "NO ACT
OF CONGRESS SHALL BE CONSTRUED TO INVALIDATE, IMPAIR, OR SUPERSEDE ANY
LAW ENACTED BY ANY STATE FOR THE PURPOSE OF REGULATING THE BUSINESS OF
INSURANCE  ... UNLESS SUCH ACT SPECIFICALLY RELATES TO THE BUSINESS OF
INSURANCE  ...  ."  15 U.S.C. SEC. 1012.  SUFFICE IT TO SAY THAT EVEN
THE MOST CURSORY READING OF THE LEGISLATIVE HISTORY OF THIS ENACTMENT
MAKES IT CLEAR THAT ITS EXCLUSIVE PURPOSE WAS TO COUNTERACT ANY ADVERSE
EFFECT THAT THIS COURT'S DECISION IN UNITED STATES V. SOUTH-EASTERN
UNDERWRITERS ASSOCIATION, 322 U.S. 533, MIGHT BE FOUND TO HAVE ON STATE
REGULATION OF INSURANCE.  THE HOUSE REPORT ON THE BILL AS ENACTED IS
DECISIVE: 

"IT IS NOT THE INTENTION OF CONGRESS IN THE ENACTMENT OF THIS
LEGISLATION TO CLOTHE THE STATES WITH ANY POWER TO REGULATE OR TAX THE
BUSINESS OF INSURANCE BEYOND THAT WHICH THEY HAD BEEN HELD TO POSSESS
PRIOR TO THE DECISION OF THE UNITED STATES SUPREME COURT IN THE
SOUTHEASTERN UNDERWRITERS ASSOCIATION CASE."  H.R. REP. NO. 143, 79TH
CONG., 1ST SESS. 3. 

THE QUESTION WHETHER APPLICATION OF THE DIRECT ACTION STATUTE
CONFLICTS WITH FEDERAL MARITIME LAW IS NOT TOUCHED BY THE SOUTH-EASTERN
UNDERWRITERS CASE.  IN THE FACE OF THIS UNEQUIVOCAL EXPRESSION OF
CONGRESSIONAL MEANING, THE STATUTE CANNOT BE READ AS DOING SOMETHING
THAT CONGRESS HAS TOLD US IT WAS NOT INTENDED TO DO.  THE MCCARRAN ACT
IS NOT RELEVANT HERE. 

THIS BRINGS US TO THE GOVERNING ISSUE:  DOES THE LOUISIANA STATUTE
ENTER AN AREA OF MARITIME JURISDICTION WITHDRAWN FROM THE STATES? 
SINCE CONGRESS HAS PROVIDED A COMPREHENSIVE LEGISLATIVE SYSTEM FOR
ADJUDICATING MARITIME CLAIMS, WE PASS DIRECTLY TO CONSIDERING WHETHER
THE OPERATION OF THE LOUISIANA STATUTE CONFLICTS WITH THAT SYSTEM,
PUTTING TO ONE SIDE THE QUESTION WHETHER IT ENCROACHES UPON THE GENERAL
BODY OF NON-STATUTORY MARITIME LAW.  CF. RED CROSS LINE V. ATLANTIC
FRUIT CO., 264 U.S. 109; JUST V. CHAMBERS, 312 U.S. 383. 

LEGISLATION LIMITING SHIPOWNERS' LIABILITY WAS FIRST ENACTED IN 1851
TO PROVIDE ASSISTANCE TO AMERICAN SHIPOWNERS AND THEREBY PLACE THEM IN
A FAVORABLE POSITION IN THE COMPETITION FOR WORLD TRADE.  9 STAT. 635. 
IT PROVIDES THAT IN EVENT OF A COLLISION OR OTHER MARITIME MISHAP,
OCCURRING "WITHOUT THE PRIVITY OR KNOWLEDGE" OF THE OWNER (INCLUDING
THEREIN A CHARTERER), LIABILITY WILL BE LIMITED TO THE VALUE OF THE
SHIP AND FREIGHT PENDING.  (FN4)  THE ACT ALSO PERMITS THE SHIPOWNER BY
INSTITUTING LIMITATION PROCEEDINGS TO HAVE ALL CLAIMS AGAINST HIM
BROUGHT INTO CONCOURSE IN AN ADMIRALTY TRIBUNAL. 

THE LEGISLATION WAS DESIGNED TO INDUCE THE HEAVY FINANCIAL
COMMITMENTS THE SHIPPING INDUSTRY REQUIRES BY MITIGATING THE THREAT OF
A MULTITUDE OF SUITS AND THE HAZARDS OF VAST, UNLIMITED LIABILITY AS A
RESULT OF A MARITIME DISASTER.  THIS COURT HAS BEEN FAITHFUL TO THIS
ULTIMATE PURPOSE AND HAS READ THE STATUTE'S WORDS "IN A BROAD AND
POPULAR SENSE IN ORDER NOT TO DEFEAT THE MANIFEST INTENT."  FLINK V.
PALADINI, 279 U.S. 59, 63.  PARTICULARLY IN VIEW OF THE FACT THAT
CONGRESS SUBJECTED THE WHOLE LIMITATION SCHEME TO SCRUTINY IN 1935 AND
1936 AS A RESULT OF ITS APPLICATION TO PERSONAL INJURY AND DEATH CLAIMS
RESULTING FROM THE SINKING OF THE MORRO CASTLE, AND DID NOT ALTER THOSE
PROVISIONS OF THE LEGISLATION INVOLVED HERE, WE MUST READ THE STATUTE
IN THE LIGHT OF ITS EXPRESSED PURPOSES.  IT IS NOT FOR US TO SIT IN
JUDGMENT ON THE POLICY OF CONGRESS IN HAVING ALL CLAIMS DISPOSED OF IN
ONE PROCEEDING OR IN APPORTIONING MARITIME LOSSES. 

THE DIRECT ACTION STATUTE CLASHES WITH THE FEDERAL SYSTEM FOR
MARSHALLING ALL CLAIMS ARISING FROM CERTAIN MARITIME CAUSES OF ACTION. 
SEE THE DETAILED PROVISIONS IN ADMIRALTY RULES 51-54, 334 U.S. 864. 
THE HEART OF THIS SYSTEM IS A CONCURSUS OF ALL CLAIMS TO ENSURE THE
PROMPT AND ECONOMICAL DISPOSITION OF CONTROVERSIES IN WHICH THERE ARE
OFTEN A MULTITUDE OF CLAIMANTS.  THE BENEFITS A CONCURSUS BESTOWS ON
THE SHIPPING INDUSTRY WERE THUS DESCRIBED IN THE HEARINGS ON THE 1936
AMENDMENTS TO THE LIMITATION ACT: 

"UNDER THE LIMITATION STATUTES, AS WE HAVE HAD THEM SINCE 1851, THEY
HAD TWO DIFFERENT PURPOSES TO SERVE; ONE WAS TO LIMIT THE LIABILITY OF
THE OWNER AND THE OTHER WAS TO DRAW INTO ONE COURT, IN THE CASE OF A
LARGE ACCIDENT, ALL OF THE CLAIMS, IN ORDER THAT THEY MIGHT BE HEARD BY
ONE JUDGE ON ONE STATE OF FACTS, IN ONE TRIAL, AND INTELLIGENTLY
DISPOSED OF.  SUPPOSE A BIG SEA COMES ABOARD A PASSENGER LINER AND 15
OR 20 PEOPLE ON THAT DECK ARE WASHED UP AGAINST THE STANCHIONS OR
SOMETHING ELSE, AND THE CLAIM IS THAT THE SHIP OUGHT TO HAVE SLOWED
DOWN, OUGHT TO HAVE KNOWN BY RADIO.  THOSE PASSENGERS MAY LIVE ANYWHERE
FROM MAINE TO TEXAS, AND IF YOU HAVE 20 SEPARATE LAWS IN 20 DIFFERENT
JURISDICTIONS, YOU JUST CANNOT HANDLE AN ACCIDENT OF THAT KIND IN ANY
POSSIBLY INTELLIGENT WAY.  ONE COURT WILL SAY THE LINE WAS NOT
NEGLIGENT; ANOTHER COURT WILL SAY IT WAS NEGLIGENT; A THIRD COURT WILL
SAY YOU ARE ENTITLED TO $1,500; THE NEXT ONE MAY SAY YOU ARE ENTITLED
TO $45,000; AND NOBODY KNOWS WHERE HE IS. 

"SO ONE OF THE MOST USEFUL PURPOSES OF THE LIMITATION STATUTE WAS
THAT IN A CASE LIKE THAT YOU COULD FILE A PETITION BRINGING INTO ONE
COURT ALL OF THE CLAIMANTS AND HAVE ONE TRIAL.  OTHERWISE YOU WOULD
HAVE TO KEEP THE CREW OFF OF THE SHIP TRAVELING AROUND THE COUNTRY FOR
2 OR 3 YEARS."  STATEMENT BY MR. CHARLES S. HAIGHT, REPRESENTING THE
FRENCH LINE, HEARINGS BEFORE HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES ON H.R. 9969, PART 4, 74TH CONG., 2D SESS. 69-70. 

AND COMMENTING ON THE LIMITATION OF LIABILITY SECTIONS OF THE
ADMIRALTY RULES OF THIS COURT, MR. JUSTICE BRADLEY THUS DESCRIBED THEIR
PURPOSE: 

"IN PROMULGATING THE RULES REFERRED TO, THIS COURT EXPRESSED ITS
DELIBERATE JUDGMENT AS TO THE PROPER MODE OF PROCEEDING ON THE PART OF
SHIPOWNERS FOR THE PURPOSE OF HAVING THEIR RIGHTS UNDER THE ACT
DECLARED AND SETTLED BY THE DEFINITIVE DECREE OF A COMPETENT COURT,
WHICH SHOULD BE BINDING ON ALL PARTIES INTERESTED, AND PROTECT THE SHIP
OWNERS FROM BEING HARASSED BY LITIGATION IN OTHER TRIBUNALS  ...  .
THE QUESTIONS TO BE SETTLED BY THE STATUTORY PROCEEDINGS BEING, FIRST,
WHETHER THE SHIP OR ITS OWNERS ARE LIABLE  ...  AND SECONDLY, IF
LIABLE, WHETHER THE OWNERS ARE ENTITLED TO A LIMITATION OF LIABILITY,
MUST NECESSARILY BE DECIDED BY THE DISTRICT COURT HAVING JURISDICTION
OF THE CASE; AND, TO RENDER ITS DECISION CONCLUSIVE, IT MUST HAVE
ENTIRE CONTROL OF THE SUBJECT TO THE EXCLUSION OF OTHER COURTS AND
JURISDICTIONS.  IF ANOTHER COURT MAY INVESTIGATE THE SAME QUESTIONS AT
THE SAME TIME, IT MAY COME TO A CONCLUSION CONTRARY TO THAT OF THE
DISTRICT COURT; AND IF IT DOES (AS HAPPENED IN THIS CASE), THE
PROCEEDINGS IN THE DISTRICT COURT WILL BE THWARTED AND RENDERED
INEFFECTIVE TO SECURE TO THE SHIP OWNERS THE BENEFIT OF THE STATUTE." 
PROVIDENCE & NEW YORK S.S. CO. V. HILL CO., 109 U.S. 578, 594-595. 

DIRECT ACTIONS AGAINST THE LIABILITY UNDERWRITER OF THE SHIPOWNER OR
CHARTERER WOULD DETRACT FROM THE BENEFIT OF A CONCURSUS AND UNDERMINE
THE OPERATION OF THE CONGRESSIONAL SCHEME FOR THE "COMPLETE AND JUST
DISPOSITION OF A MANY CORNERED CONTROVERSY."  HARTFORD ACCIDENT &
INDEMNITY CO. V. SO. PACIFIC CO., 273 U.S. 207, 216.  THE SHIP'S
COMPANY WOULD BE SUBJECT TO CALL AS WITNESSES IN MORE THAN ONE
PROCEEDING, PERHAPS IN DIVERSE FORUMS.  CONFLICTING JUDGMENTS MIGHT
RESULT.  ULTIMATE RECOVERIES MIGHT VARY FROM THE PROPORTIONS
CONTEMPLATED BY THE STATUTE.  MOREOVER, IT IS IMPORTANT TO BEAR IN MIND
THAT THE CONCURSUS IS NOT SOLELY FOR THE BENEFIT OF THE SHIPOWNER.  THE
ELABORATE NOTICE PROVISIONS OF THE ADMIRALTY RULES ARE DESIGNED TO
PROTECT INJURED CLAIMANTS.  THEY ENSURE THAT ALL CLAIMANTS, NOT JUST A
FAVORED FEW, WILL COME IN ON AN EQUAL FOOTING TO OBTAIN A PRO RATA
SHARE OF THEIR DAMAGES.  TO PERMIT DIRECT ACTIONS TO DRAIN AWAY PART OR
ALL OF THE INSURANCE PROCEEDS PREJUDICES THE RIGHTS OF THOSE VICTIMS
WHO RELY, AND HAVE EVERY REASON TO RELY, ON THE LIMITATION PROCEEDING
TO PRESENT THEIR CLAIMS.  (FN5) 

FURTHERMORE, INSURERS, UNABLE TO RELY ON THE LIMITATION OF LIABILITY
OF THEIR INSURED AND DENIED THE BENEFITS OF THE CONCURSUS, WOULD IN ALL
LIKELIHOOD REFLECT THE INCREASED COSTS IN THEIR PREMIUMS, THUS PASSING
ON TO THE VERY CLASS SOUGHT TO BE BENEFITED BY THE FEDERAL LEGISLATION
THE SHORT-CIRCUITING EFFECTS OF THE STATE STATUTE.  (FN6) 

IN ADDITION TO ENCROACHMENT UPON THE FEDERAL STATUTORY SYSTEM FOR
BRINGING ALL CLAIMS INTO CONCOURSE, THE DIRECT ACTION STATUTE IS IN
CONFLICT WITH THE CONGRESSIONAL POLICY OF LIMITED LIABILITY.  THE
COMPLAINTS IN THOSE TWO OF THE FIVE CONSOLIDATED SUITS WHICH ARE BY
AGREEMENT PART OF THE RECORD HERE TOTAL $600,000 IN ALLEGED DAMAGES. 
THUS, WE ARE CERTAINLY ON NOTICE THAT THE TOTAL DAMAGES OF THE
RESPONDENTS MAY EXCEED THE $180,000 SUM WHICH THE POLICIES WOULD
COVER.  IF THE PRESENT ACTIONS WERE TO RESULT IN JUDGMENTS EQUALING THE
FACE AMOUNT OF THE POLICIES, THE INSURERS WOULD BE EXONERATED OF ANY
FURTHER OBLIGATION TO INDEMNIFY THE OWNER AND CHARTERER UNDER THE
POLICIES.  THE SHIPOWNER AND CHARTERER WOULD THEN HAVE TO FACE WHATEVER
CLAIMS MAY BE PRESENTED STRIPPED OF THEIR INSURANCE PROTECTION.  HOW
THIS MAY COME ABOUT IS EASILY SEEN IF WE ASSUME THAT THE SALVAGED SHIP
WILL FINALLY BE VALUED AT $25,000 - THE AMOUNT FOR WHICH WE ARE ADVISED
A STIPULATION HAS BEEN FILED IN THE LIMITATION PROCEEDING.  IF THE FIVE
CLAIMANTS WERE TO SUCCEED IN OBTAINING JUDGMENTS OF $180,000 WITHOUT
EXHAUSTING ALL CLAIMS, THERE WOULD BE NO BAR TO AN ADDITIONAL $25,000
RECOVERY FROM THE SHIPOWNER AND THE CHARTERER IN THE LIMITATION
PROCEEDING BY OTHER CLAIMANTS, OR PERHAPS EVEN BY SOME OF THE
RESPONDENTS HERE.  YET IN THE ABSENCE OF THE DIRECT ACTION STATUTE, THE
LIABILITY POLICIES WOULD BE MORE THAN SUFFICIENT TO COVER ANY JUDGMENT
THAT MIGHT BE RENDERED IN THE LIMITATION ACTION.  UNDER THESE
CIRCUMSTANCES, THE EXTENT TO WHICH THE INSURED LOSE THE BENEFITS WHICH
CONGRESS INTENDED THEM TO HAVE IS MEASURED BY THE PROTECTIVE VALUE OF
THEIR INSURANCE.  (FN7)  WITHOUT HAVING BOUGHT ANY POLICIES THEY COULD
ONLY HAVE BEEN HELD FOR $25,000.  IF THEY BUY THE POLICIES, AND THE
LOUISIANA STATUTE IS APPLIED TO PERMIT THESE SUITS, THEIR LIABILITY IS
STILL $25,000. 

THUS, TO PERMIT DIRECT ACTIONS UNDER THE STATE STATUTE WOULD REQUIRE
THAT SHIPOWNERS BECOME SELF-INSURERS FOR LIABILITY RISKS IN ORDER TO BE
SURE OF GETTING THE FULL PROTECTION OF THE LIMITATION LEGISLATION.  IN
VIEW OF THE FACT THAT "SUBSTANTIALLY ALL MARITIME RISKS ARE INSURED,"
KEEN V. OVERSEAS TANKSHIP CORP., 194 F.2D 515, 518 (L. HAND, J.), THIS
SORT OF QUALIFICATION WOULD BE COMPLETELY INCONSISTENT WITH THE
LIMITATION ACT. 

IN 1886 THE COURT WAS CALLED UPON TO DECIDE WHETHER THE PROCEEDS FROM
A HULL INSURANCE POLICY ARE PART OF AN OWNER'S "INTEREST" IN A SHIP AND
AS SUCH MUST BE TURNED INTO THE LIMITATION PROCEEDING.  IN THE CITY OF
NORWICH, 118 U.S. 468, THE COURT HELD THAT INSURANCE PROCEEDS NEED NOT
BE TURNED IN. IN PART, THE DECISION WAS BASED ON A NARROW
INTERPRETATION OF "INTEREST."  BUT MR. JUSTICE BRADLEY, WHO HAD A
COMMANDING ROLE IN APPLYING THE LIMITATION ACT, REVIEWED THE HISTORY
AND POLICY OF LIMITED LIABILITY, AND THE LANGUAGE OF THAT OPINION IS AN
ILLUMINATING GUIDE HERE: 

"NOW, TO CONSTRUE THE LAW IN SUCH A MANNER AS TO PREVENT THE MERCHANT
FROM CONTRACTING WITH AN INSURANCE COMPANY FOR INDEMNITY AGAINST THE
LOSS OF HIS INVESTMENT IS CONTRARY TO THE SPIRIT OF COMMERCIAL
JURISPRUDENCE.  WHY SHOULD HE NOT BE ALLOWED TO PURCHASE SUCH AN
INDEMNITY?  IS IT AGAINST PUBLIC POLICY?  THAT CANNOT BE, FOR PUBLIC
POLICY WOULD EQUALLY CONDEMN ALL INSURANCE BY WHICH A MAN PROVIDES
INDEMNITY FOR HIMSELF AGAINST THE RISKS OF FIRE, LOSSES AT SEA, AND
OTHER CASUALTIES.  TO HOLD THAT THIS CANNOT BE DONE TENDS TO DISCOURAGE
THOSE WHO MIGHT OTHERWISE BE WILLING TO INVEST THEIR MONEY IN THE
SHIPPING BUSINESS."  118 U.S., AT 504-505. 

AND THE COURT, IN THE CITY OF NORWICH, FORESHADOWED THE CONSEQUENCES
OF PERMITTING DIRECT ACTIONS AGAINST LIABILITY INSURERS OF SHIPOWNERS:
"NO FORM OF AGREEMENT COULD BE FRAMED BY WHICH (SHIPOWNERS) COULD
PROTECT THEMSELVES.  THIS IS A RESULT ENTIRELY FOREIGN TO THE SPIRIT OF
OUR LEGISLATION."  118 U.S., AT 505. 

OF COURSE, WHOLLY APART FORM THE RESPECT TO BE ACCORDED STATE
LEGISLATION, THIS COURT SHOULD BE SLOW TO FIND THAT EVEN WHERE CONGRESS
HAS EXERCISED ITS LEGISLATIVE POWER IT HAS NOT LEFT ROOM FOR STATE
ACTION.  KELLY V. WASHINGTON, 302 U.S. 1.  BUT WHERE, AS IN THIS CASE,
THE EVIDENT DESIGN OF CONGRESS CAN ONLY BE CARRIED OUT BY BARRING STATE
ACTION, IT MUST BE BARRED. 

IT IS TRUE THAT THE RECORD BEFORE US DOES NOT ESTABLISH WITH
CERTAINTY THAT THE PRESENT SUITS WOULD IN FACT OPERATE TO LEAVE THE
SHIPOWNER AND CHARTERER TO FACE LIABILITY IN THE LIMITATION ACTION
WITHOUT INDEMNIFICATION.  JUDGMENTS IN THE PRESENT ACTIONS AGAINST THE
INSURERS MIGHT SATISFY ALL CLAIMS OR LEAVE ENOUGH INSURANCE MONEY TO
INDEMNIFY THE SHIPOWNER AND CHARTERER FOR LIABILITY IN THE LIMITATION
ACTION.  THE SALVAGED VESSEL MAY FINALLY BE VALUED AS WORTHLESS,
EXONERATING THE SHIPOWNER AND CHARTERER FROM ANY LIABILITY IN THE
LIMITATION ACTION.  OR THE RIGHT OF THE SHIPOWNER AND CHARTERER TO
LIMIT THEIR LIABILITY MIGHT BE SUCCESSFULLY CHALLENGED ON THE GROUNDS
THAT THE MISHAP DID NOT HAPPEN WITHOUT THEIR "PRIVITY OR KNOWLEDGE." 
(FN8) 

THESE ELEMENTS OF UNCERTAINTY PROVIDE A TEMPTATION TO LET THE PRESENT
ACTIONS PROCEED.  FURTHER SUPPORT FOR THIS VIEW MAY REASONABLY BE FOUND
IN THE FACT THAT IT IS THE INSURERS RATHER THAN THE SHIPOWNER AND
CHARTERER WHO ARE HERE SEEKING TO RELY ON THE LIMITATION ACT AS A
DEFENSE.  BUT THE CRUCIAL FACT WHICH REQUIRES THAT THE CONFLICT BETWEEN
STATE AND FEDERAL LAW BE FACED NOW IS THAT THE PRESENT ACTIONS ARE
BROUGHT COMPLETELY INDEPENDENTLY OF THE LIMITATION PROCEEDING.  IF THE
COURT KEEPS HANDS OFF THE DIRECT ACTIONS, THE DRAINING AWAY OF THE
INSURANCE PROCEEDS CANNOT BE CHALLENGED AT ANY TIME BY ANYONE. 

THIS IS NOT A CASE WHERE SOME FUTURE ACTION REMAINS TO BE TAKEN BY
ONE OF THE PARTIES TO A SUIT BEFORE THE CRITICAL ISSUE IS PRESENTED TO
THE COURT AS CLEARLY AS MAY BE.  SEE UNITED PUBLIC WORKERS V. MITCHELL,
330 U.S. 75.  NOR IS THIS A CASE WHERE WE CAN POSTPONE OUR REVIEW UNTIL
A STATE COURT GIVES MEANING TO A CHALLENGED STATE STATUTE.  ALBERTSON
V. MILLARD, 345 U.S. 242.  IN THE SUITS BEFORE US, THE COURT IS AT THE
POINT OF NO RETURN.  ONCE THE RESPONDENTS HAVE RECOVERED FROM THE
INSURERS THE FACE AMOUNT OF THE INSURANCE POLICIES IN THE PRESENT
ACTIONS, AND THEY OR OTHER CLAIMANTS ARE GOING AFTER THE SHIPOWNER AND
CHARTERER IN THE LIMITATION ACTION, IT WILL BE TOO LATE TO RELY ON THE
LIMITATION ACT TO PRESERVE THE INSURANCE PROCEEDS. 

THUS, IT IS CLEAR THAT IF THE PRESENT DIRECT ACTIONS ARE PERMITTED,
THEY INVOLVE SUBSTANTIAL HAZARD TO RIGHTS GRANTED BY AN ACT OF
CONGRESS, LEAVING NO WAY FOR SUCH IMPAIRMENT TO BE CHALLENGED. 
RESPECT FOR THE ACT PRECLUDES ALLOWANCE OF LITIGATION, BASED ON A STATE
STATUTE, WHICH CARRIES THE POTENTIALITY OF IRREPARABLE INFRINGEMENT
UPON FEDERAL LAW.  THE POINT OF INADMISSIBLE CONFLICT BETWEEN STATE AND
FEDERAL LEGISLATION IS REACHED AS SOON AS SUIT IS BROUGHT AGAINST THE
LIABILITY UNDERWRITERS TO GET AT PROCEEDS OF THE POLICIES.  AND IF THE
FEDERAL LEGISLATION BARS SUCH A SUIT, IT WOULD BE ANOMALOUS TO SAY THAT
THE UNDERWRITERS MAY NOT HERE CONTEST THE DIRECT ACTIONS. 

OF COURSE, LIABILITY UNDERWRITERS ARE NOT ENTITLED TO "LIMITATION OF
LIABILITY" AS THAT PHRASE IS USED AS A TERM OF ART IN ADMIRALTY.  TO
STATE THE ISSUE IN THESE TERMS IS TO MISCONCEIVE IT.  THE QUESTION IS
WHETHER THE COURT IS TO DISREGARD THE EFFECT OF A DIRECT ACTION ON THE
FEDERAL PROCEEDINGS.  THE LOUISIANA STATUTE, AS APPLIED TO AUTHORIZE
SUITS AGAINST THE INSURERS OF SHIPOWNERS AND CHARTERERS WHO HAVE
INSTITUTED LIMITATION PROCEEDINGS, IS A DISTURBING INTRUSION BY A STATE
ON THE HARMONY AND UNIFORMITY OF ONE ASPECT OF MARITIME LAW.  IT IS
ACCENTUATED BY THE FACT THAT THE FEDERAL LAW INVOLVED IS NOT A MORE OR
LESS ILL-DEFINED AREA OF MARITIME COMMON LAW, INCURSION UPON WHICH NEED
NOT BE HERE CONSIDERED, BUT AN ACT OF CONGRESS, WELL-DEFINED AND
CONSCIOUSLY DESIGNED, WITH DETAILED RULES FOR ITS EXECUTION ESTABLISHED
BY THIS COURT. 

"IF THE COURTS HAVING THE EXECUTION OF (THE LIMITATION ACT)
ADMINISTER IT IN A SPIRIT OF FAIRNESS, WITH THE VIEW OF GIVING TO SHIP
OWNERS THE FULL BENEFIT OF THE IMMUNITIES INTENDED TO BE SECURED BY IT,
THE ENCOURAGEMENT IT WILL AFFORD TO COMMERCIAL OPERATIONS (AS BEFORE
STATED) WILL BE OF THE LAST IMPORTANCE:  BUT IF IT IS ADMINISTERED WITH
A TIGHT AND GRUDGING HAND, CONSTRUING EVERY CLAUSE MOST UNFAVORABLY
AGAINST THE SHIP OWNER, AND ALLOWING AS LITTLE AS POSSIBLE TO OPERATE
IN HIS FAVOR, THE LAW WILL HARDLY BE WORTH THE TROUBLE OF ITS
ENACTMENT.  ITS VALUE AND EFFICIENCY WILL ALSO BE GREATLY DIMINISHED,
IF NOT ENTIRELY DESTROYED, BY ALLOWING ITS ADMINISTRATION TO BE
HAMPERED AND INTERFERED WITH BY VARIOUS AND CONFLICTING
JURISDICTIONS."  PROVIDENCE & NEW YORK S.S. CO. V. HILL CO., 109 U.S.
578, 588-589. 

ACCORDINGLY, MR. JUSTICE REED, MR. JUSTICE JACKSON, MR. JUSTICE
BURTON AND I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS AND
REINSTATE THAT OF THE DISTRICT COURT DISMISSING THE COMPLAINTS.  FOR
THE REASONS STATED IN HIS OPINION, MR. JUSTICE CLARK AGREES THAT THE
DIRECT ACTION SUITS SHOULD NOT BE PERMITTED TO IMPAIR THE SHIPOWNER'S
AND CHARTERER'S RIGHT TO INDEMNIFICATION, BUT HE WOULD ALLOW THE
DISTRICT COURT TO ADJUDICATE THE LIABILITY OF THE PETITIONERS TO THE
RESPONDENTS AFTER THE LIMITATION PROCEEDING HAS RUN ITS COURSE. 

IN ORDER TO BREAK THE DEADLOCK RESULTING FROM THE DIFFERENCES OF
OPINION WITHIN THE COURT AND TO ENABLE A MAJORITY TO DISPOSE OF THIS
LITIGATION, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND ORDER
THE CASE TO BE REMANDED TO THE DISTRICT COURT TO BE CONTINUED UNTIL
AFTER THE COMPLETION OF THE LIMITATION PROCEEDING.  IT IS SO ORDERED. 

FN1  46 U.S.C. SEC. 183: "(A) THE LIABILITY OF THE OWNER OF ANY
VESSEL, WHETHER AMERICAN OR FOREIGN  ...  FOR ANY LOSS, DAMAGE, OR
INJURY BY COLLISION, OR FOR ANY ACT, MATTER, OR THING, LOSS, DAMAGE, OR
FORFEITURE, DONE, OCCASIONED, OR INCURRED, WITHOUT THE PRIVITY OR
KNOWLEDGE OF SUCH OWNER OR OWNERS, SHALL NOT, EXCEPT IN THE CASES
PROVIDED FOR IN SUBSECTION (B) OF THIS SECTION, EXCEED THE AMOUNT OR
VALUE OF THE INTEREST OF SUCH OWNER IN SUCH VESSEL, AND HER FREIGHT
THEN PENDING." 

SEC. 186:  "THE CHARTERER OF ANY VESSEL, IN CASE HE SHALL MAN,
VICTUAL, AND NAVIGATE SUCH VESSEL AT HIS OWN EXPENSE, OR BY HIS OWN
PROCUREMENT, SHALL BE DEEMED THE OWNER OF SUCH VESSEL WITHIN THE
MEANING OF THE PROVISIONS OF THIS CHAPTER RELATING TO THE LIMITATION OF
THE LIABILITY OF THE OWNERS OF VESSELS; ...  ." 

FN2  PRIOR TO INSTITUTING THIS ACTION, ALL FIVE PLAINTIFFS HAD FILED
IN THE LIMITATION PROCEEDING PLEADINGS CHALLENGING THE SHIPOWNER'S AND
CHARTERER'S RIGHT TO LIMIT THEIR LIABILITY AND ASSERTING CLAIMS FOR
DAMAGES. 

FN3  THE PROTECTION AND INDEMNITY POLICY ISSUED BY THE HOME INSURANCE
COMPANY CONTAINED THE FOLLOWING CLAUSES.  "IT IS AGREED THAT IF THE
ASSURED, AS SHIPOWNERS, SHALL HAVE BECOME LIABLE TO PAY, AND SHALL HAVE
IN FACT PAID, ANY SUM OR SUMS IN RESPECT OF ANY RESPONSIBILITY, CLAIM,
DEMAND, DAMAGES AND/OR EXPENSES, OR SHALL BECOME LIABLE FOR AND SHALL
PAY ANY OTHER LOSS ARISING FROM OR OCCASIONED BY ANY OF THE FOLLOWING
MATTERS OR THINGS  ...  ."  THERE FOLLOWS THE TYPES OF INJURY AND LOSS
FOR WHICH THE COMPANY IS LIABLE.  A SUBSEQUENT PROVISO READS "LIABILITY
HEREUNDER SHALL IN NO EVENT EXCEED THAT WHICH WOULD BE IMPOSED ON THE
ASSURED BY LAW IN THE ABSENCE OF CONTRACT." 

CONDITION G OF THE POLICY ISSUED BY MARYLAND CASUALTY PROVIDES: "NO
ACTION SHALL LIE AGAINST THE COMPANY TO RECOVER UPON ANY CLAIM OR FOR
ANY LOSS UNDER PARAGRAPH IB) FOREGOING UNLESS BROUGHT AFTER THE AMOUNT
OF SUCH CLAIM OR LOSS SHALL HAVE BEEN FIXED AND RENDERED CERTAIN EITHER
BY FINAL JUDGMENT AGAINST THIS EMPLOYER AFTER TRIAL OF THE ISSUE OR BY
AGREEMENT BETWEEN THE PARTIES WITH THE WRITTEN CONSENT OF THE COMPANY,
NOR IN ANY EVENT UNLESS BROUGHT WITHIN TWO YEARS THEREAFTER." 

FN4  THIS COURT HAS INTERPRETED THIS AS MEANING THE VALUE AFTER THE
ACCIDENT.  NORWICH CO. V. WRIGHT, 13 WALL.  104. 

AFTER THE MORRO CASTLE DISASTER, IN WHICH 135 LIVES WERE LOST AND THE
OWNERS SOUGHT TO LIMIT THEIR LIABILITY TO $20,000, CONGRESS CHANGED THE
STATUTE TO PROVIDE THAT IF THE VALUE OF THE VESSEL AND FREIGHT PENDING
IS NOT ENOUGH TO COVER ALL CLAIMS, THAT PORTION OF THE TOTAL RECOVERY
APPLICABLE TO PERSONAL INJURY OR DEATH CLAIMS SHALL BE AT LEAST $60 PER
TON.  49 STAT. 960; 49 STAT. 1479.  46 U.S.C. SEC. 183(B)-(E).  THIS
PROVISION IS APPLICABLE, HOWEVER, ONLY TO "SEAGOING VESSELS," DEFINED
AS EXCLUDING TOWBOATS WHICH IS THE TYPE OF VESSEL INVOLVED HERE.  46
U.S.C. SEC. 183(F). 

FN5  FOR EXAMPLE, IN THIS CASE THE REPRESENTATIVES OF A SIXTH VICTIM
MAY BE RELYING ON THE LIMITATION ACTION TO PROVE "PRIVITY OR KNOWLEDGE"
AND THUS SEEK A JUDGMENT SUBSTANTIALLY IN EXCESS OF THE SHIP'S VALUE. 
THEY WILL BE PENALIZED FOR RELYING ON THE FEDERAL LEGISLATION AND THE
RULES IF THE DIRECT ACTIONS DRAIN AWAY THE INSURANCE PROCEEDS AND THE
SHIPOWNER AND CHARTERER ARE UNABLE TO MEET ADDITIONAL JUDGMENTS. 

FN6  THAT THE COST AND INDEED THE AVAILABILITY OF INSURANCE DEPENDS
ON LIMITED LIABILITY WAS BROUGHT TO THE ATTENTION OF CONGRESS IN THE
HEARINGS ON THE 1936 AMENDMENTS TO THE LIMITATION ACT.  SEE HEARINGS
BEFORE HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES ON H.R. 9969,
PART 4, 74TH CONG., 2D SESS. 66-67, 129. 

FN7  THIS IS EQUALLY TRUE WHATEVER THE VESSEL IS VALUED AT.  OF
COURSE, WE DO NOT KNOW NOW THAT THE VESSEL WILL FINALLY BE VALUED AT
$25,000.  THE FINAL VALUATION MAY BE MORE OR LESS.  CERTAINLY, ON THE
RECORD BEFORE US WE CANNOT ASSUME THAT THE SHIP IS VALUELESS, AND IT
MAY BE THAT SHIPOWNER AND CHARTERER WILL NEED THE FULL $180,000 FACE
VALUE OF THE POLICY TO INDEMNIFY THEM FOR A JUDGMENT IN THE LIMITATION
ACTION.  THE VERY REASON THAT THE PRESENT SUIT SHOULD NOT BE ALLOWED TO
PROCEED IS THAT IT IS FOR THE LIMITATION PROCEEDING TO DETERMINE
VALUE. 

FN8  THE ALLEGATION OF "PRIVITY" AND "KNOWLEDGE" IS NOT AN ASSUMPTION
ON THE BASIS OF WHICH THIS CASE COULD BE DISPOSED OF.  THE SHIPOWNER'S
AND CHARTERER'S RIGHT TO LIMITATION MUST BE DETERMINED, AS PROVIDED BY
THE ACT AND RULES OF THIS COURT, IN THE LIMITATION PROCEEDING ITSELF,
NOT IN THE PRESENT SUITS TO WHICH THEY ARE NOT PARTIES.    MR. JUSTICE
CLARK, CONCURRING. 

I SEE NO NECESSITY FOR INVALIDATING LOUISIANA'S LAW BY DISMISSING
THESE DIRECT ACTIONS.  IN ADMINISTERING THE LIMITED LIABILITY ACT THE
COURT CAN EASILY AVOID A CLEAR CONFLICT BETWEEN IT AND THE DIRECT
ACTION STATUTE. 

THE LIMITED LIABILITY ACT ADMITTEDLY WAS NOT DESIGNED FOR THE BENEFIT
OF INSURANCE COMPANIES; NOR DOES IT DEAL WITH THEIR LIABILITY.  THE
PURPOSE OF THE CONGRESS IN PASSING THE ACT IN 1851 WAS TO ENCOURAGE
INVESTMENT IN AMERICAN SHIPS BY PLACING A LIMITATION UPON THE PERSONAL
LIABILITY OF THE SHIPOWNER IN THE EVENT OF AN ACCIDENT WHERE THERE IS
NO "PRIVITY OR KNOWLEDGE."  THEREAFTER THIS COURT IN THE CITY OF
NORWICH, 118 U.S. 468 (1886), RECOGNIZED THE RIGHT OF A SHIPOWNER TO
BUY INSURANCE COVERAGE FOR DAMAGE TO HIS HULL IN ORDER TO PROTECT
AGAINST THE LOSS OF HIS INVESTMENT.  THE PROCEEDS OF SUCH "HULL
INSURANCE" WERE HELD, FOR PURPOSES OF A LIMITATION PROCEEDING, NOT A
PART OF "THE INTEREST" OF THE OWNER IN THE VESSEL.  THE BASIS OF THE
DECISION WAS THAT CONGRESS INTENDED THE ACT TO PROTECT THE INVESTMENT
OF SHIPOWNERS, AND IF THE LATTER WERE PREVENTED FROM INDEMNIFYING
THEMSELVES FROM LOSS OF THEIR INVESTMENT IN THE SHIP IT WOULD BE
CONTRARY TO THE PURPOSE OF CONGRESS AS WELL AS TO THE SPIRIT OF
COMMERCIAL JURISPRUDENCE.  HERE, THE DAMAGE CLAIMS WHICH MAY BE
SUSTAINED IN THE LIMITATION PROCEEDING WILL BE CHARGEABLE AGAINST THE
JANE SMITH AND THE OWNER MAY LOSE THE DAMAGED HULL OR ITS VALUE UNLESS
HE CAN RECOUP THROUGH THE INSURANCE WHICH IS INVOLVED IN THESE DIRECT
ACTIONS AND WHICH HE PURCHASED FOR HIS PROTECTION.  IF THE INSURANCE
PROCEEDS ARE EXHAUSTED IN THE DIRECT ACTIONS, THE OWNER'S RECOUPMENT
WILL BE IMPOSSIBLE.  THOUGH THE HOLDING IN THE CITY OF NORWICH DOES NOT
CONTROL, I THINK THAT THE REASONING OF THAT CASE IS PERTINENT; IN OTHER
WORDS, THE OWNER OF THE SHIP HAS THE SAME RIGHT TO PROTECT HIS
INVESTMENT IN THE SHIP BY INSURANCE AGAINST DAMAGE CLAIMS ARISING IN
ITS OPERATION AND WHICH ARE CHARGEABLE TO IT (FN1) AS HE HAS TO PROTECT
HIS INVESTMENT FROM DAMAGE TO THE SHIP ITSELF.  UNLESS THE OWNER IS
AFFORDED AN OPPORTUNITY TO PROVIDE FOR SUCH PROTECTION, THE PURPOSE OF
CONGRESS TO ENCOURAGE INVESTMENT IN AMERICAN SHIPS WILL BE JUST AS MUCH
THWARTED AS IT WOULD HAVE BEEN HAD THE OWNER'S RIGHT TO BUY INSURANCE
PROTECTION IN THE CITY OF NORWICH NOT BEEN RECOGNIZED. 

TO SAY THAT THIS VIEW BENEFITS THE SHIPOWNER "AT THE EXPENSE OF THE
FAMILIES OF THE DECEASED SEAMEN" IS TO IGNORE THE REALITIES OF THE
CASE.  HAD THE OWNER NOT PURCHASED LIABILITY INSURANCE THE CLAIMANTS
COULD NOT, UNDER ANY CONDITION, RECOVER MORE THAN THE VALUE OF THE
DAMAGED HULL IF THERE IS NO "PRIVITY OR KNOWLEDGE."  THE OWNER'S
LIABILITY INSURANCE IS THE SOLE SOURCE OF THE CLAIMANTS' HOPE FOR A
RECOVERY BEYOND THE VALUE OF THE DAMAGED HULL.  THE OWNER'S MOTIVE IN
PURCHASING INSURANCE CERTAINLY WAS NOT TO PROTECT HIS SEAMEN OR THE
PUBLIC, BUT TO PROTECT HIMSELF AGAINST DAMAGE CLAIMS.  AND IN SO DOING
HE HAS AIDED THE WIDOWS AND ORPHANS OF THE DECEASED SEAMEN BY CREATING
THE POSSIBILITY OF AN ADDITIONAL RECOVERY AGAINST THE INSURANCE
COMPANIES.  NOR CAN THE OWNER "PROFIT" FROM THE ACCIDENT.  THE AMOUNT
HE MAY RECOVER FROM THE INSURERS UNDER THE LIABILITY POLICIES COULD
NEVER EXCEED THE AMOUNT HE IS OBLIGATED TO PAY TO THE CLAIMANTS IN THE
LIMITATION PROCEEDINGS.  HE "PROFITS" ONLY IN THE SENSE THAT HE IS
PERMITTED TO RECEIVE THE PROTECTION FOR WHICH HE PAID. 

THIS IS NOT TO SAY THAT THE INSURANCE COMPANIES IN A DIRECT ACTION
ARE LIABLE TO DAMAGE CLAIMANTS.  THAT WOULD BE A QUESTION OF LOUISIANA
LAW.  OUR ONLY INTEREST IS TO MAKE CERTAIN THAT SUCH ACTIONS DO NOT
INTERFERE WITH THE FEDERAL LIMITATION PROCEEDING.  TO DO THIS WE NEED
ONLY REQUIRE THAT THE LIMITATION PROCEEDING BE CONCLUDED FIRST AND THE
OWNER'S LIABILITY SETTLED UNDER IT.  THE PETITIONERS COULD THEN
DISCHARGE THIS LIABILITY, TO THE EXTENT THEIR POLICIES COVERED IT, BY
PAYING INTO THE LIMITATION PROCEEDING THE PROPER SUM.  (FN2)  THE DOOR
WOULD THEN BE LEFT OPEN FOR PROSECUTION OF THE DIRECT ACTIONS AGAINST
THE INSURANCE COMPANIES ON THE REMAINING COVERAGE OF THE POLICIES. 
THUS, WHATEVER THE INSURERS' LIABILITY MAY BE UNDER LOUISIANA LAW IN
THE SUBSEQUENT DIRECT ACTIONS, THE OWNER'S PURSE CANNOT BE TOUCHED. 

MR. JUSTICE FRANKFURTER'S OPINION STATES THAT THE CASES MIGHT BE HELD
FOR THE LIMITATION PROCEEDING WERE IT NOT THAT CONGRESS INTENDED THAT
PROCEEDING TO BE, IN ADDITION TO A CONCURSUS OF ALL CLAIMS AGAINST THE
OWNER AND CHARTERER, THE EXCLUSIVE FORUM FOR LITIGATING ALL LIABILITY
RESULTING FROM THE ACCIDENT.  THIS IS CERTAINLY NOT AN UNREASONABLE
POSITION.  TO BE SURE, SOME OF THE ARGUMENTS FOR A CONCURSUS OF CLAIMS
AGAINST THE OWNER OR CHARTERER WOULD BE APPLICABLE TO CLAIMS AGAINST
THE INSURER.  BUT I DO NOT THINK THE ARGUMENTS FOR SUCH A HOLDING ARE
SO PERSUASIVE, AND THE CASE FOR AN OPPOSITE CONCLUSION SO FEEBLE, THAT
WE SHOULD PROCEED AT THIS JUNCTURE TO INVALIDATE A STATE LAW.  IT IS
ALSO REASONABLE TO READ THE LIMITED LIABILITY ACT AS AIMED AT
PROTECTING ONLY OWNERS AND CHARTERERS.  THE STATUTE DOES NOT SPEAK OF
SUITS AGAINST INSURERS.  AND WHEN THE ADMIRALTY RULES WERE ADOPTED WE
WERE CONCERNED SOLELY WITH THE PROBLEMS OF THE OWNER AND CHARTERER. 
FOR EXAMPLE, THE LIMITATION COURT IS EMPOWERED TO ENJOIN SUITS IN OTHER
COURTS ARISING OUT OF THE ACCIDENT ONLY IF THE SUITS ARE AGAINST THE
OWNER, CHARTERER OR VESSEL; NO MENTION WAS MADE OF ENJOINING SUITS
AGAINST ANY OTHER PARTY, E.G., INSURANCE COMPANIES.  SEE RULE 51.  IN
SUM, WE MUST READ BETWEEN THE LINES IN INTERPRETING THE ACT REGARDLESS
OF HOW WE HOLD.  WHEN THE ISSUE IS SO CLOSE, I WOULD RESOLVE IT IN
FAVOR OF UPHOLDING RATHER THAN INVALIDATING A STATE STATUTE.  WE ARE
NOT HERE CONFRONTED WITH A PICTURE OF LAWSUITS IN TWENTY-ODD STATES
UNDER TWENTY DIFFERENT STATE LAWS; IF THIS BE A VALID ARGUMENT AGAINST
UPHOLDING THE STATUTE IN ANOTHER SITUATION, IT HAS NO APPLICATION IN
THIS CASE.  THE TOWBOAT JANE SMITH, OWNED BY A LOUISIANA RESIDENT,
PLIED ONLY LOUISIANA WATERS OF THE ATCHAFALAYA RIVER; THE ACCIDENT
WHICH BEFELL THE VESSEL OCCURRED IN LOUISIANA; ALL THE PARTIES SAVE ONE
RESIDED IN THE STATE AND BOTH THE LIMITATION PROCEEDING AND THE DAMAGE
SUITS ARE PENDING IN THE SAME COURT BEFORE THE SAME JUDGE.  MOREOVER,
THE DAMAGE CLAIMANTS, PERHAPS SECONDARY BENEFICIARIES OF THE LIMITED
LIABILITY ACT, ARE ALSO THE BENEFICIARIES OF A HOLDING THAT THE LIMITED
LIABILITY ACT DOES NOT FORECLOSE THE POSSIBILITY OF DIRECT ACTIONS BY
THEM SUBSEQUENT TO THE LIMITATION PROCEEDING. 

FOR THESE REASONS, I WOULD DIRECT THE DISTRICT COURT TO FIRST
CONCLUDE THE LIMITATION PROCEEDING, AFTER WHICH THE LIABILITY, IF ANY,
OF THE PETITIONERS ON THEIR POLICIES IN THE DIRECT ACTIONS COULD BE
DETERMINED. 

FN1  THE BUSINESS PRACTICE OF PURCHASING MARINE PROTECTION AND
INDEMNITY INSURANCE, THE TYPE PRIMARILY INVOLVED HERE, TO PROTECT THE
SHIPOWNER AGAINST THIS CONTINGENCY HAS LONG BEEN RECOGNIZED.   SEE
TESTIMONY OF IRA A. CAMPBELL FOR AMERICAN STEAMSHIP OWNERS'
ASSOCIATION, AT HEARINGS BEFORE HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES ON H.R. 4550, 74TH CONG., 1ST SESS. 91, 125, 131. 

FN2  OF COURSE, IF THE SHIP IS A TOTAL LOSS, AND ASSUMING NO PRIVITY
OR KNOWLEDGE, THE OWNER'S LIABILITY WOULD BE NOTHING UNDER THE FEDERAL
ACT.  ALL THE INSURANCE WOULD THEN BE AVAILABLE TO CLAIMANTS IN THE
DIRECT ACTIONS, IF LIABILITY IS PRESENT UNDER LOUISIANA LAW. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE MINTON CONCUR, DISSENTING. 

THE TOWBOAT JANE SMITH HIT A RAILROAD BRIDGE AND SANK IN LOUISIANA
WATERS OF THE ATCHAFALAYA RIVER.  FIVE CREW MEMBERS WERE DROWNED. 
PETITIONERS, MARYLAND CASUALTY COMPANY AND HOME INSURANCE COMPANY, HAD
PREVIOUSLY SOLD INSURANCE POLICIES TO THE BOAT'S OWNER AND ITS
CHARTERER AGREEING TO REPAY THEM FOR ANY MONEY THEY HAD TO PAY ON
ACCOUNT OF INJURY OR DEATH CAUSED BY THE BOAT.  THESE POLICIES WERE
ISSUED AND DELIVERED IN LOUISIANA.  A LOUISIANA STATUTE AUTHORIZES
INJURED PERSONS OR THEIR HEIRS TO SUE INSURANCE COMPANIES DIRECTLY ON
SUCH POLICIES.  UNDER THIS LAW THE WIDOWS OF THE DROWNED CREWMEN
BROUGHT THESE DIVERSITY ACTIONS IN FEDERAL COURT AGAINST PETITIONERS. 
A MAJORITY OF THE COURT HOLD THAT PERMITTING THESE SUITS TO GO FORWARD
TO JUDGMENTS AGAINST THE INSURANCE COMPANIES PRIOR TO COMPLETION OF
LIMITATION OF LIABILITY PROCEEDINGS UNDER AN 1851 ACT OF CONGRESS WOULD
BRING THIS STATE STATUTE INTO CONFLICT WITH THAT ACT.  BUT THE 1851 ACT
WAS PASSED TO HELP SHIPOWNERS BY LIMITING THE DAMAGES THEY MUST PAY ON
ACCOUNT OF WRONGS INFLICTED BY THEIR AGENTS.  I SEE NO POSSIBLE REASON
FOR MAKING INSURANCE COMPANIES THE BENEFICIARIES OF THIS SHIPOWNERS'
RELIEF ACT.  NEITHER CAN I UNDERSTAND WHY THIS COURT SHOULD FEEL CALLED
ON TO RELIEVE SHIPOWNERS FROM EVEN THE LIGHT FINANCIAL BURDEN THAT THE
1851 ACT LEFT THEM TO BEAR.  NOR DO I THINK THE LOUISIANA ACT IS
SUBJECT TO ANY OF THE CONSTITUTIONAL OBJECTIONS THE INSURANCE COMPANIES
URGE AGAINST IT.  I AGREE WITH THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT THAT THE INSURANCE COMPANIES' CONTENTIONS "OVER-INFLATE A
RELATIVELY SIMPLE PROPOSITION WITH APPARENT, BUT UNREAL, TECHNICAL
PROBLEMS."  198 F.2D 536, 539.  FOR THAT REASON WITHOUT MORE I WOULD
AFFIRM THIS JUDGMENT.  BUT BECAUSE OF THE CONFUSED STATE IN WHICH THIS
CASE GOES BACK TO THE DISTRICT COURT I THINK IT DESIRABLE THAT ALL
QUESTIONS BE DISCUSSED.  I SHALL FIRST TAKE UP THE CONSTITUTIONAL
OBJECTIONS. 

                      I. 

(A)  THE INSURANCE COMPANIES ARGUE THAT THE LOUISIANA LAW IMPAIRS THE
OBLIGATION OF "MARITIME CONTRACTS."  THE IMPLICATION IS THAT MARITIME
CONTRACTS HAVE MORE CONSTITUTIONAL PROTECTION THAN OTHER KINDS OF
CONTRACTS.  BUT ART. I, SEC. 10 OF THE UNITED STATES CONSTITUTION,
WHICH FORBIDS STATES TO IMPAIR THE OBLIGATIONS OF CONTRACTS, DRAWS NO
SUCH DISTINCTION.  AND WHILE IN GENERAL THIS PROVISION PROTECTS VALID
CONTRACTS FROM IMPAIRMENT BY SUBSEQUENT LEGISLATION OF STATES, IT DOES
NOT FORBID STATES TO PASS LAWS REGULATING CONTRACTS THEREAFTER TO BE
MADE.  MUNDAY V. WISCONSIN TRUST CO., 252 U.S. 499, 503.  CF. HOME
BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398.  HENCE THE LOUISIANA
LAW, PASSED BEFORE THESE INSURANCE POLICIES WERE ISSUED, DOES NOT
VIOLATE THE IMPAIRMENT OF CONTRACT CLAUSE AND, UNLESS INVALID FOR SOME
OTHER REASON, THE STATE'S "DIRECT ACTION" STATUTE BECAME A PART OF THE
CONTRACT WHEN IT WAS MADE JUST AS THOUGH WRITTEN INTO EACH POLICY BY
THE COMPANIES.  NEW YORK LIFE INS. CO. V. CRAVENS, 178 U.S. 389, 395
400.  CF. FARMERS AND MERCHANTS BANK V. FEDERAL RESERVE BANK, 262 U.S.
649, 660. 

(B)  ARTICLE III, SEC. 2 OF THE CONSTITUTION PROVIDES THAT "THE
JUDICIAL POWER SHALL EXTEND  ... TO ALL CASES OF ADMIRALTY AND MARITIME
JURISDICTION  ...  ."  IT IS CONTENDED THAT THIS PROVISION NOT ONLY
GIVES THE FEDERAL GOVERNMENT SUPREME POWER OVER MARITIME AFFAIRS BUT
THAT IT ALSO DENIES ANY POWER IN STATES TO LEGISLATE IN THIS FIELD. 
THIS COMPLETE DENIAL OF STATE POWER IS SAID TO HAVE BEEN ESTABLISHED BY
SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, AND KNICKERBOCKER ICE CO.
V. STEWART, 253 U.S. 149.  THE OPINIONS IN THOSE CASES DID LEND SOME
SUPPORT TO A CONSTITUTIONAL DOCTRINE THAT THE ADMIRALTY CLAUSE REQUIRES
RIGID NATIONAL UNIFORMITY IN MARITIME LEGISLATION.  BUT THIS COURT
REJECTED THAT DOCTRINE IN RED CROSS LINE V. ATLANTIC FRUIT CO., 264
U.S. 109.  MR. JUSTICE BRANDEIS SPEAKING FOR THE COURT IN THAT CASE
MADE IT ABSOLUTELY CLEAR THAT THE ADMIRALTY CLAUSE DOES NOT DEPRIVE
STATES OF POWER TO MAKE DIFFERENT REGULATIONS IN REGARD TO MARITIME
AFFAIRS UNLESS A STATE ATTEMPTS TO MODIFY OR DISPLACE ESSENTIAL
FEATURES OF THE SUBSTANTIVE MARITIME LAW OR TO MODIFY THE REMEDIAL LAW
OF ADMIRALTY COURTS.  SEE ALSO STANDARD DREDGING CORP. V. MURPHY, 319
U.S. 306.  THESE CASES BUT REAFFIRMED A POWER THAT STATES HAVE ALWAYS
EXERCISED.  WHEN THE CONSTITUTION WAS ADOPTED THE GOVERNMENT FOUND
STATE REGULATORY SYSTEMS GOVERNING LOCAL MARITIME AFFAIRS THROUGHOUT
THE COUNTRY.  GIBBONS V. OGDEN, 9 WHEAT.  1, 207.  CONGRESS HAS NEVER
ATTEMPTED TO SUPPLANT ALL LOCAL MARITIME REGULATIONS BUT HAS LEFT MANY
IN EFFECT AS USEFUL AIDS IN CARRYING OUT NATIONAL MARITIME POLICIES. 
SEE COOLEY V. BOARD OF WARDENS, 12 HOW.  299; THE HAMILTON, 207 U.S.
398; KELLY V. WASHINGTON, 301 U.S. 1, 14-16.  FOR EXAMPLE, STATES CAN
EVEN CREATE LIENS ON VESSELS WHICH MAY BE ENFORCED EITHER IN STATE
COURTS OR IN COURTS OF ADMIRALTY, DESPITE THE LACK OF UNIFORMITY
BROUGHT ABOUT BY "INTRICATE AND CONFLICTING STATE LAWS CREATING SUCH
LIENS  ...  ."  THE LOTTAWANNA, 21 WALL.  558, 581.  IN DECLINING TO
INVALIDATE THESE STATE LIEN LAWS THIS COURT THERE POINTED OUT THAT
CONGRESS COULD TERMINATE THE EFFECTIVENESS OF SUCH STATE LEGISLATION AT
ANY TIME IT DESIRED TO ASSUME CONTROL. 

THE UNIFORMITY WHICH THE ADMIRALTY CLAUSE OF THE CONSTITUTION
REQUIRES IS LIMITED TO ONE INDEFINITELY DEFINED AREA - THAT INVOLVING
"THE ESSENTIAL FEATURES OF AN EXCLUSIVE FEDERAL JURISDICTION."  JUST V.
CHAMBERS, 312 U.S. 383, 391.  EXCEPT IN INSTANCES FALLING CLEARLY
WITHIN THIS AREA STATES ARE FREE TO MAKE LAWS RELATING TO MARITIME
AFFAIRS.  THUS, IN JUST V. CHAMBERS, FLORIDA WAS PERMITTED TO PROVIDE A
REMEDY FOR DEATH DUE TO MARITIME TORTS IN FLORIDA WATERS, EVEN THOUGH
SUCH A REMEDY WAS NOT PERMISSIBLE UNDER MARITIME LAW AND NOT AVAILABLE
IN OTHER STATES.  HERE LOUISIANA HAS PROVIDED A REMEDY FOR DEATH DUE TO
MARITIME TORTS IN LOUISIANA WATERS AND IT IS THEREFORE DIFFICULT FOR ME
TO SEE HOW THE PRESENT CASE CAN BE DISTINGUISHED FROM JUST V.
CHAMBERS.  NEITHER CONGRESS NOR THIS COURT HAS PROVIDED OR FORBIDDEN
SUITS AGAINST INSURANCE COMPANIES IN CASES LIKE THESE, OR ATTEMPTED TO
ESTABLISH UNIFORM RULES FOR THE REGULATION OF MARITIME INSURANCE TO THE
EXCLUSION OF THE STATES.  INDEED, IT WAS NOT UNTIL 1870 THAT THIS COURT
FINALLY DECIDED THAT THE REGULATION OF MARINE INSURANCE WAS WITHIN THE
JURISDICTION OF ADMIRALTY AT ALL.  INSURANCE CO. V. DUNHAM, 11 WALL. 
1.  PRIOR TO THAT TIME, THERE WAS STRONG SUPPORT FOR THE BELIEF THAT
THE STATES ALONE COULD REGULATE MARINE INSURANCE.  NO ACT OF CONGRESS
AND NOTHING THIS COURT HAS SAID SINCE THE DUNHAM DECISION IN 1871 HAS
TAKEN AWAY THE CONCURRENT JURISDICTION OF STATES OVER MARITIME
INSURANCE POLICIES.  (FN1)  NO REASON HAS BEEN ADVANCED WHY MARINE
INSURANCE, LONG THE PROVINCE OF THE STATES, SO IMPERATIVELY REQUIRES
UNIFORMITY THAT WE SHOULD NOW HOLD THAT CONGRESS ALONE CAN REGULATE IT.
(FN2)  CONSEQUENTLY, TO ENFORCE THE LOUISIANA LAW WOULD NOT IMPAIR THE
UNIFORMITY OF MARITIME LAW, BUT WOULD ONCE AGAIN "ILLUSTRATE THE
ALACRITY WITH WHICH ADMIRALTY COURTS ADOPT STATUTES GRANTING THE RIGHT
TO RELIEF WHERE OTHERWISE IT COULD NOT BE ADMINISTERED BY A MARITIME
COURT  ...  ."  WORKMAN V. NEW YORK CITY, 179 U.S. 552, 563.  SEE ALSO
THE HAMILTON, 207 U.S. 398. 

LOUISIANA'S STATUTE, AS SOUGHT TO BE APPLIED HERE, WOULD FURTHER THE
EQUITABLE AIMS OF ADMIRALTY BY PROVIDING RELIEF NOT OTHERWISE AVAILABLE
FOR MARITIME WRONGS.  FOR BEHIND THIS "DIRECT ACTION" STATUTE LIES A
LONG HISTORY OF STATE ATTEMPTS TO PROTECT THE PUBLIC INTEREST BY
ENSURING THAT LIABILITY POLICIES FURNISH ADEQUATE PROTECTION TO PERSONS
INJURED.  AT ONE TIME INSURANCE COMPANIES WERE COMMONLY ABLE TO AVOID
PAYMENT OF A SINGLE DOLLAR ON THEIR POLICIES WHENEVER THE INSURED WAS
INSOLVENT AND THEREFORE JUDGMENT-PROOF.  THE INSURANCE, ALTHOUGH BOUGHT
AND PAID FOR, WOULD REMAIN UNTOUCHED WHILE VALID CLAIMS WENT ENTIRELY
UNSATISFIED.  TO PREVENT THIS INJUSTICE MANY STATES PASSED LAWS OF ONE
KIND OR ANOTHER WHICH REQUIRED INSURANCE COMPANIES TO PAY INJURED
PERSONS EVEN THOUGH THE INSURED HAD PAID OUT NO MONEY.  THE
MASSACHUSETTS SUPREME JUDICIAL COURT TOOK THE LEAD IN SUSTAINING A LAW
OF THIS TYPE, CHIEF JUSTICE RUGG SUGGESTING ITS NEED TO PREVENT
LIABILITY INSURANCE FROM BECOMING A "SNARE TO THE INSURED AND A BARREN
HOPE TO THE INJURED."  LORANDO V. GETHRO, 228 MASS. 181, 189, 117 N.E.
185, 189.  AND, DESPITE THE FACT THAT THESE STATE STATUTES WROTE
COMPULSORY TERMS AND OBLIGATIONS INTO ALL INSURANCE CONTRACTS, THIS
COURT SUSTAINED SUCH A STATUTE APPLYING TO AUTOMOBILE INSURANCE.  CHIEF
JUSTICE TAFT SAID THAT "  ...  IT WOULD SEEM TO BE A REASONABLE
PROVISION BY THE STATE IN THE INTEREST OF THE PUBLIC, WHOSE LIVES AND
LIMBS ARE EXPOSED, TO REQUIRE THAT THE OWNER IN THE CONTRACT
INDEMNIFYING HIM AGAINST ANY RECOVERY FROM HIM SHOULD STIPULATE WITH
THE INSURANCE COMPANY THAT THE INDEMNITY BY WHICH HE SAVES HIMSELF
SHOULD CERTAINLY INURE TO THE BENEFIT OF THE PERSON WHO THEREAFTER IS
INJURED."  MERCHANTS MUTUAL AUTOMOBILE LIABILITY INS. CO. V. SMART, 267
U.S. 126, 129-130.  THE LOUISIANA STATUTE IS AN APPLICATION OF THIS
SAME PRINCIPLE.  IT EXPRESSES THE PUBLIC POLICY OF LOUISIANA THAT
LIABILITY INSURANCE EXISTS FOR THE PROTECTION AND BENEFIT OF THE
INJURED AS WELL AS THE INSURED.  DAVIES V. CONSOLIDATED UNDERWRITERS,
199 LA. 459, 475-476, 6 SO. 2D 351, 356-357.  UNDER LOUISIANA'S LAW AN
INDIVIDUAL PURCHASES LIABILITY INSURANCE NOT FOR HIMSELF ALONE BUT ALSO
FOR THOSE WHOM HE MAY INJURE.  THIS BARGAIN IS ADVANTAGEOUS TO THE
PURCHASER BECAUSE CLAIMS AGAINST HIM CAN BE SATISFIED IN SUITS AGAINST
THE INSURER. 

THERE CAN BE NO CONSTITUTIONAL BARRIER TO THIS LOUISIANA LAW PASSED
TO PROTECT PERSONS INJURED WITHIN ITS BORDERS.  CONSEQUENTLY, UNLESS
CONGRESS HAS SPECIFICALLY FORBIDDEN STATES TO PROTECT SEAMEN THIS WAY,
LOUISIANA'S STATUTE IS VALID AND SHOULD BE ENFORCED. 

                                       II. 

THE MAJORITY HOLD THAT THE LIMITED LIABILITY ACT OF 1851, AS AMENDED,
BESTOWS ON THE SHIPOWNER A RIGHT TO COLLECT ALL OR PART OF THE
INSURANCE MONEY FOR HIS PROFIT DESPITE LOUISIANA'S STATUTE REQUIRING
INSURANCE COMPANIES TO MAKE THEIR PAYMENTS DIRECTLY TO THE FAMILIES OF
PERSONS INJURED OR KILLED.  I THINK THIS CONSTRUCTION GIVES SHIPOWNERS
FAR MORE THAN CONGRESS INTENDED.  THE LIMITED LIABILITY ACT PROVIDES
THAT "THE LIABILITY OF THE OWNER OF ANY VESSEL  ...  FOR ANY ACT,
MATTER, OR THING, LOSS, DAMAGE, OR FORFEITURE, DONE, OCCASIONED, OR
INCURRED, WITHOUT THE PRIVITY OR KNOWLEDGE OF SUCH OWNER OR OWNERS,
SHALL NOT  ...  EXCEED THE AMOUNT OR VALUE OF THE INTEREST OF SUCH
OWNER IN SUCH VESSEL, AND HER FREIGHT THEN PENDING."  (FN3)  THIS ACT
RELIEVES SHIPOWNERS FROM A LARGE PART OF THE LIABILITY NORMALLY IMPOSED
ON EMPLOYERS FOR TORTS OF THEIR EMPLOYEES.  UNDER THE ACT, A SHIPOWNER
NEED PAY NOTHING TO TORT CLAIMANTS IF THE SHIP IS A TOTAL LOSS.  IF IT
IS NOT WHOLLY DESTROYED, THE SHIPOWNER CAN SIMPLY TURN A FUND EQUAL TO
THE VALUE OF HIS INTEREST IN THE DAMAGED SHIP OVER TO A COURT IN A
LIMITATION PROCEEDING.  ALL CLAIMS AGAINST THE SHIPOWNER MUST THEN BE
SATISFIED OUT OF THAT FUND, NO MATTER HOW LARGE THE CLAIMS OR HOW SMALL
THE FUND.  THE PURPOSE OF CONGRESS IN LIMITING THE LIABILITY OF
SHIPOWNERS WAS TO ENCOURAGE INVESTMENT IN AMERICAN SHIPS.  BUT NEITHER
THE ACT NOR ITS HISTORY INDICATES A PURPOSE TO ENCOURAGE INVESTMENT IN
INSURANCE COMPANIES BY LIMITING THEIR LIABILITIES.  THE INSURANCE
COMPANIES CONTEND, HOWEVER, THAT REQUIRING THEM TO PAY THEIR POLICY
OBLIGATIONS TO THESE CLAIMANTS WILL SOMEHOW COMPEL SHIPOWNERS TO PAY
OUT MONEY IN EXCESS OF THE LIABILITY PROVIDED BY THE ACT.  FOR THE
REASONS THAT FOLLOW I THINK THIS CONTENTION IS WITHOUT MERIT. 

(A)  THE MAJORITY APPEAR TO HOLD THAT IF THE INSURANCE COMPANIES PAY
OUT THE FULL AMOUNT OF THEIR POLICIES IN THESE ACTIONS AND SOME
RECOVERY IS ALSO HAD AGAINST THE SHIPOWNER IN LIMITATION PROCEEDINGS
THE SHIPOWNER WILL BE UNABLE TO GET REIMBURSEMENT FOR THAT RECOVERY
FROM THE INSURERS AND TO THAT EXTENT WILL BE "DEPRIVED OF HIS
INSURANCE."  IT WAS CONCEDED AT THE BAR, HOWEVER, THAT THE SHIP HERE IS
WITHOUT VALUE - A TOTAL LOSS.  IF THIS IS TRUE, THERE WOULD BE NO FUND
IN THE LIMITATION PROCEEDINGS AND NO POSSIBILITY OF ANY RECOVERY AT ALL
AGAINST THE SHIPOWNER.  UNDER THESE CIRCUMSTANCES, THE SHIPOWNER DOES
NOT STAND TO LOSE A DIME IF THE INSURANCE COMPANIES ARE HELD LIABLE FOR
THE FULL AMOUNT OF THEIR POLICIES, AND THERE IS NO REASON FOR DEFERRING
TRIAL OF THESE LAWSUITS. 

(B)  EVEN IF THE SHIP HAS SOME VALUE AND THERE SHOULD BE RECOVERIES
FROM THE LIMITATION FUND, LOUISIANA'S STATUTE WOULD NOT DEPRIVE THE
SHIPOWNER OF ANY RIGHT GIVEN BY THE LIMITED LIABILITY ACT.   THAT ACT
WAS PASSED TO HELP SHIPOWNERS BY PERMITTING THEM TO ESCAPE FULL
LIABILITY FOR WRONGS OF THEIR AGENTS.  BUT NOT A WORD IN IT SUGGESTS
THAT CONGRESS ALSO INTENDED TO GIVE SHIPOWNERS ADDITIONAL SPECIAL
PRIVILEGES WITH RESPECT TO LIABILITY INSURANCE OR TO INTERFERE WITH
STATE REGULATION OF ANY TYPE OF INSURANCE.  NOR WAS ANY SUCH EXPANDED
CONSTRUCTION OF THE ACT MADE BY THIS COURT IN THE CITY OF NORWICH, 118
U.S. 468.  THAT CASE RESTED ENTIRELY ON A HOLDING THAT MONEY FROM HULL
INSURANCE WAS NOT PART OF AN OWNER'S "INTEREST" IS HIS SHIP WHICH THE
LIMITED LIABILITY ACT REQUIRED HIM TO TURN OVER TO DAMAGE CLAIMANTS. 
THE COURT WAS CONCERNED ONLY WITH WHAT MADE UP THE LIMITATION FUND. 
THE CLAIMANTS HERE MAKE NO CONTENTION THAT LIABILITY INSURANCE IS PART
OF THE LIMITATION FUND.  THEY CONCEDE THAT THE SHIPOWNER CAN BE MADE TO
PAY OUT ONLY THE VALUE OF HIS "INTEREST" IN THE DAMAGED SHIP.  BUT THEY
INSIST THAT THE SHIPOWNER SHOULD NOT BE ALLOWED TO ESCAPE LOSS FROM
EVEN THE LIMITED LIABILITY WHICH CONGRESS PUT ON HIM, IF THE RESULT IS
TO DEPRIVE INJURED PERSONS OF INSURANCE BOUGHT TO PROTECT THEM.  THERE
IS A VITAL DIFFERENCE BETWEEN LIABILITY INSURANCE AND HULL INSURANCE
WITH WHICH THE CITY OF NORWICH DEALT.  THE LATTER PROVIDES RECOVERY FOR
LOSS OF THE SHIPOWNER'S PROPERTY.  BUT LIABILITY INSURANCE IS NOT
BOUGHT TO GUARANTEE REIMBURSEMENT FOR LOSS OF A SHIPOWNER'S PROPERTY. 
ITS PURPOSE IS TO PAY FOR DAMAGE DONE TO OTHERS BY THE SHIPOWNER OR HIS
AGENTS.  THE SHIPOWNER HAS AN INSURABLE "INTEREST" IN HIS SHIP; IF IT
IS LOST OR DAMAGED ANY INSURANCE MONEY COLLECTED IS HIS OWN.  I CANNOT
BELIEVE HE HAS AN INSURABLE "INTEREST" IN HIS SEAMEN WHICH COULD
POSSIBLY ENTITLE HIM TO REDUCE THE ALREADY LIMITED FINANCIAL
OBLIGATIONS THE ACT IMPOSES BY TAKING FOR HIMSELF INSURANCE MONEY WHICH
OTHERWISE WOULD GO TO COMPENSATE SEAMEN OR THEIR FAMILIES FOR INJURIES
HE INFLICTS.  THE RESULT OF HOLDING THAT THE ACT GIVES THE SHIPOWNER
THIS INSURANCE BENEFIT IS, AT LEAST IN SOME CIRCUMSTANCES, TO LEAVE HIM
WITH MORE MONEY AFTER A WRECK IF HE INJURES PEOPLE THAN IF HE DOES
NOT.  IT IS A FAR CRY FROM THE DECISION IN THE CITY OF NORWICH THAT A
SHIPOWNER IS ENTITLED TO KEEP THE INSURANCE COLLECTED FOR LOSS OF HIS
OWN SHIP TO TODAY'S HOLDING THAT STATES CANNOT ASSURE SEAMEN THAT THEY
INSTEAD OF THE SHIPOWNER CAN GET THE FULL BENEFIT OF LIABILITY POLICIES
BOUGHT IN ORDER TO PAY THEIR JUST CLAIMS FOR INJURIES CAUSED BY THE
SHIP. 

(C)  IT IS SAID, HOWEVER, THAT OTHER SHIPOWNERS MIGHT HAVE TO PAY
HIGHER PREMIUMS AND ALSO BUY MORE INSURANCE IF RECOVERIES ARE ALLOWED
HERE, AND THAT THIS WOULD DISCOURAGE INVESTMENT IN SHIPS.  HOW THE
LIMITED LIABILITY ACT MAY BE READ TO IMPOSE A CEILING ON PREMIUMS, OVER
WHICH THE STATES NORMALLY HAVE FULL POWER, IS DIFFICULT FOR ME TO
UNDERSTAND.  I HAVE SEARCHED THE ACT'S HISTORY IN VAIN FOR ANY SUPPORT
FOR THIS INTERPRETATION.  YET 103 YEARS AFTER THE ACT'S PASSAGE IT IS
DISCOVERED THAT CONGRESS INTENDED TO HELP SHIPOWNERS BY PREVENTING
STATES FROM MAKING REGULATIONS THAT MIGHT RAISE THE COST OF MARINE
INSURANCE.  BUT CONGRESS DECIDED TO HELP SHIPOWNERS BY REDUCING THEIR
OBLIGATIONS DUE TO WRECKS, NOT BY REDUCING THE PRICES THEY HAD TO PAY
FOR CARRYING ON THEIR BUSINESS EITHER BEFORE OR AFTER A WRECK. 
CONSTRUING THE ACT TO PROTECT SHIPOWNERS FROM HAVING TO PAY HIGHER
PRICES FOR OIL OR COAL WOULD BE NO LESS FARFETCHED THAN CONSTRUING IT
TO KEEP DOWN INSURANCE PREMIUMS.  THIS COURT OFTEN PROTESTS ITS DESIRE
TO INDULGE EVERY PRESUMPTION IN FAVOR OF THE VALIDITY OF STATE
LEGISLATION.  IT IS HARD TO RECONCILE THIS COMMENDABLE JUDICIAL
PHILOSOPHY WITH USE OF ATTENUATED INFERENCES ABOUT INCREASED PREMIUMS
AS AN EXCUSE FOR IMPAIRING THIS LOUISIANA LAW. 

(D)  DESPITE THE INSISTENCE OF PETITIONER INSURANCE COMPANIES THAT
THESE SUITS MUST BE WHOLLY BARRED TO SAVE SHIPOWNERS FROM INJURY, IT
SEEMS PLAIN THAT THE ONLY REAL BENEFICIARIES OF SUCH A HOLDING WOULD BE
THE COMPANIES THEMSELVES.  THEY, RATHER THAN THE SHIPOWNER, WOULD ENJOY
THE PROTECTION SOUGHT TO BE WRITTEN INTO THE LIMITED LIABILITY ACT. 
BUT EVEN THE MOST GENEROUS READING OF THE ACT GIVES NO GROUND FOR
BELIEVING THAT IT WAS INTENDED TO HELP INSURANCE COMPANIES, DIRECTLY OR
INDIRECTLY.  AND NOTHING IN THE RECORDS OF THE CONGRESSIONAL DEBATES OR
REPORTS SUPPORTS SUCH A STRAINED INTERPRETATION.  SHIPOWNERS, NOT
INSURANCE COMPANIES, WERE THE GROUP CONGRESS WANTED TO HELP. 

(E)  FOR THE ABOVE REASONS I THINK THE LIMITED LIABILITY ACT DOES NOT
REQUIRE DEFERRING THE PRESENT SUITS SO THAT THE SHIPOWNER CAN BE THE
DIRECT BENEFICIARY OF THESE INSURANCE POLICIES AT THE EXPENSE OF THE
FAMILIES OF THE DECEASED SEAMEN.  BUT QUITE APART FROM THESE REASONS,
THE SAME CONCLUSION IS REQUIRED BY SPECIFIC INSTRUCTIONS FROM
CONGRESS.  THE MCCARRAN ACT PROVIDES THAT "NO ACT OF CONGRESS SHALL BE
CONSTRUED TO INVALIDATE, IMPAIR, OR SUPERSEDE ANY LAW ENACTED BY ANY
STATE FOR THE PURPOSE OF REGULATING THE BUSINESS OF INSURANCE  ...
UNLESS SUCH ACT SPECIFICALLY RELATES TO THE BUSINESS OF INSURANCE  ...
."  15 U.S.C. SEC. 1012(B).  IT IS UNQUESTIONABLY TRUE THAT THE
MCCARRAN ACT WAS PASSED IN RESPONSE TO THIS COURT'S DECISION THAT
INSURANCE WAS SUBJECT TO THE FEDERAL COMMERCE POWER.  (FN4)  BUT THAT
IS NO REASON FOR GIVING THE LAW AN UNNATURALLY NARROW CONSTRUCTION
SQUARELY IN THE TEETH OF THE PLAIN, NORMAL, EVERYDAY MEANING OF THE
LANGUAGE USED.  THE ACT RATHER SHOWS THE STRONG PURPOSE OF CONGRESS TO
PERMIT STATES TO CONTINUE REGULATING INSURANCE AS THEY ALWAYS HAD. 
COURTS ARE POINTEDLY TOLD TO LEAVE STATES FREE TO REGULATE "THE
BUSINESS OF INSURANCE" IN THE ABSENCE OF SOME CONGRESSIONAL ACT THAT
"SPECIFICALLY RELATES" TO THE SAME SUBJECT.  THE "BUSINESS OF
INSURANCE" INCLUDES MARINE INSURANCE AND BY NO STRETCH OF IMAGINATION
CAN IT BE SAID THAT THE 1851 ACT "SPECIFICALLY RELATES" TO INSURANCE. 
THUS THE UNAMBIGUOUS LANGUAGE OF THE MCCARRAN ACT FORBIDS COURTS TO
CONSTRUE FEDERAL STATUTES SUCH AS THE LIMITED LIABILITY ACT SO AS TO
IMPAIR A STATE LAW LIKE LOUISIANA'S.  NO LEGISLATIVE HISTORY CAN
JUSTIFY JUDICIAL EMASCULATION OF THIS LANGUAGE.  I WOULD NOT DISREGARD
ITS MANDATE. 

                                       III. 

JUDICIAL EXPANSION OF THE LIMITED LIABILITY ACT AT THIS DATE SEEMS
ESPECIALLY INAPPROPRIATE.  MANY OF THE CONDITIONS IN THE SHIPPING
INDUSTRY WHICH INDUCED THE 1851 CONGRESS TO PASS THE ACT NO LONGER
PREVAIL.  AND LATER CONGRESSES, WHEN THEY WISHED TO AID SHIPPING,
PROVIDED SUBSIDIES PAID OUT OF THE PUBLIC TREASURY RATHER THAN
SUBSIDIES PAID BY INJURED PERSONS.  (FN5)  IF SHIPOWNERS REALLY NEED AN
ADDITIONAL SUBSIDY, CONGRESS CAN GIVE IT TO THEM WITHOUT MAKING INJURED
SEAMEN BEAR THE COST.  IT IS SIGNIFICANT THAT NO SHIPOWNER HAS ARGUED
HERE AGAINST DIRECT RECOVERIES FROM THE INSURANCE COMPANIES. 

TODAY'S DECISION CREATES UNNECESSARY DELAY AND DOUBT AS TO RECOVERY
BY THE FAMILIES OF THE JANE SMITH'S VICTIMS.  THE LOSS OF THEIR
BREADWINNERS IS NOT TO BE SHARED BY THE SHIPPING INDUSTRY THE SEAMEN
SERVED.  IT WAS SUCH RESULTS THAT LED TO EFFORTS TO SPREAD THE COST OF
INDUSTRIAL ACCIDENTS AND DISASTERS THROUGH INSURANCE AND WORKMEN'S
COMPENSATION LAWS.  ACTING CONSISTENTLY WITH THIS BROAD TREND IN THE
LAW, LOUISIANA HAS TRIED TO MAKE CERTAIN THAT ALL LIABILITY INSURANCE
WILL GET TO THOSE FOR WHOSE PROTECTION IT WAS PURCHASED.  AND
APPLICATION OF LOUISIANA'S STATUTE UNDER THE CIRCUMSTANCES HERE IS ALSO
IN HARMONY WITH THE HUMANE POLICY OF THE MARITIME LAW.  SEAMEN HAVE
TRADITIONALLY BEEN THE WARDS OF ADMIRALTY, AND ADMIRALTY HAS BEEN
INCREASINGLY SOLICITOUS TO PROVIDE COMPENSATION FOR ACCIDENTS OCCURRING
IN THEIR DANGEROUS WORK.  THUS BOTH THE GENERAL TREND OF THE LAW AND
THE SPECIFIC BENT OF ADMIRALTY SUPPORT THE POLICY OF THE PEOPLE OF
LOUISIANA WHICH PERMITS RECOVERY HERE.  NO LANGUAGE IN THE LIMITED
LIABILITY ACT FORBIDS IT; THE LANGUAGE OF THE MCCARRAN ACT SHOULD
COMPEL IT.    FN1  IN THE MERCHANT MARINE ACT OF 1920 CONGRESS
RECOGNIZED THAT "MARINE INSURANCE COMPANIES" WERE OPERATING UNDER STATE
LAWS.  SECTION 29 OF THE ACT DEFINES THAT TERM TO INCLUDE COMPANIES
"AUTHORIZED TO WRITE MARINE INSURANCE OR REINSURANCE UNDER THE LAWS OF
THE UNITED STATES OR OF A STATE  ...  ."  41 STAT. 988, 1000, 46 U.S.C.
SEC. 885(A)(2). 

FN2 IN 1935 WHEN CONGRESS WAS CONSIDERING AMENDMENTS TO THE LIMITED
LIABILITY ACT, COUNSEL FOR THE AMERICAN STEAMSHIP OWNERS' ASSOCIATION
STRONGLY CONTENDED FOR CONTINUED REGULATION OF MARINE INSURANCE BY THE
STATES AND AGAINST A FEDERAL REGULATION SYSTEM THAT WOULD HAVE BEEN
UNIFORM IN ALL THE STATES.  HEARINGS BEFORE HOUSE COMMITTEE ON MERCHANT
MARINE AND FISHERIES ON H.R. 4550, 74TH CONG., 1ST SESS. 91, 124. 

FN3  R.S. SEC. 4283, AS AMENDED, 49 STAT. 960, 49 STAT. 1479, 46
U.S.C. SEC. 183(A). 

FN4  UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S.
533. 

FN5  SEE SPRINGER, AMENDMENTS TO THE FEDERAL LAW LIMITING THE
LIABILITY OF SHIPOWNERS, 11 ST. JOHN'S L. REV. 14; NOTE, 35 COL. L.
REV. 246. 
..END :























LINEHAN V. WATERFRONT COMMISSION OF NEW YORK HARBOR 347 U.S. 439 


NO. 557.  DECIDED APRIL 12, 1954 - 116 F. SUPP. 683 AND 117 F. SUPP.
308, AFFIRMED. 


THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENTS ARE AFFIRMED. 

LINEHAN ET AL. V. WATERFRONT COMMISSION OF NEW YORK HARBOR ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK.* 

*TOGETHER WITH NO. 558, STATEN ISLAND LOADERS, INC. ET AL. V.
WATERFRONT COMMISSION OF NEW YORK HARBOR ET AL., ALSO ON APPEAL FROM
THE SAME COURT. 

PER CURIAM. 

THE MOTIONS TO AFFIRM ARE GRANTED AND THE JUDGMENTS ARE AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THIS CASE ILLUSTRATES WHAT I FEAR IS A GROWING PRACTICE OF THE COURT
OF DILUTING THE ACT OF CONGRESS WHICH GIVES US JURISDICTION OF
APPEALS.  28 U.S.C. SEC. 1253 ET AL. THE CONGRESS CARVED OUT A GROUP OF
CASES, OF WHICH THIS IS ONE, THAT COMES HERE AS OF RIGHT AND IS NOT
DEPENDENT, AS ARE PETITIONS FOR CERTIORARI, ON A VOTE OF FOUR JUSTICES
OUT OF NINE FOR AN ADJUDICATION BY THE COURT ON THE MERITS OF THE
CONTROVERSY.  IN RECENT YEARS THE COURT HAS MORE AND MORE DISMISSED OR
AFFIRMED APPEALS, WITH NO OPPORTUNITY OF COUNSEL TO MAKE ORAL ARGUMENT
AND WITHOUT ANY OPINION BY THE COURT. 

THESE APPEALS SHOULD NOT BE ADDED TO THAT GROWING LIST. 

NEW YORK AND NEW JERSEY MADE A COMPACT, APPROVED BY CONGRESS, FOR THE
REGULATION OF EMPLOYMENT ON THE WATERFRONT OF NEW YORK.*  THE AGENCY
THROUGH WHICH THE PLAN IS EFFECTED IS THE WATERFRONT COMMISSION,
COMPOSED OF ONE REPRESENTATIVE OF NEW YORK AND ONE OF NEW JERSEY.  IT
HAS CHARGE OF THE EMPLOYMENT OF ALL LONGSHOREMEN.  A LONGSHOREMEN'S
REGISTER IS ESTABLISHED; AND NO ONE CAN BE EMPLOYED UNLESS HE IS ON THE
REGISTER.  THE COMMISSION "MAY IN ITS DISCRETION" DENY AN APPLICANT THE
RIGHT TO REGISTER: 

*SEE MCKINNEY'S N.Y. UNCONSOLIDATED LAWS (CUM. PAMPH.  JAN.  1954),
SEC. 6700-AA ET SEQ.; N.J. STAT. ANN. SEC. 32:23; 67 STAT. 541. 

- IF HE HAS BEEN CONVICTED OF TREASON, MURDER, MANSLAUGHTER, ILLEGAL
POSSESSION OF FIREARMS, POSSESSING BURGLAR'S INSTRUMENTS, RECEIVING
STOLEN PROPERTY, UNLAWFUL ENTRY OF A BUILDING, AIDING AN ESCAPE FROM
PRISON, UNLAWFULLY POSSESSING OR DISTRIBUTING HABIT-FORMING DRUGS, OR: 

- IF HE IS A COMMUNIST OR TEACHES THE COMMUNIST CREED, OR: 

- IF IN THE JUDGMENT OF THE COMMISSION, HIS PRESENCE ON THE
WATERFRONT WOULD CONSTITUTE "A DANGER TO THE PUBLIC PEACE OR SAFETY." 

TWO MAIN QUESTIONS ARE AT ONCE SUGGESTED. 

FIRST, ARE THE STANDARDS BY WHICH MEN ARE DEPRIVED OF THE RIGHT TO
WORK CONSTITUTIONAL?  THIS IS A NEW QUESTION ON WHICH THE COURT HAS
NEVER RULED.  MAY A STATE PRESCRIBE STANDARDS FOR EMPLOYMENT THAT HAVE
NO RELEVANCY TO THE COMPETENCY OF THE MEN TO PERFORM THE WORK?  UNDER
THIS COMPACT A MAN WHO, IN A RECKLESS MOMENT, RUNS OVER A PERSON IN HIS
CAR AND KILLS HIM AND IS CONVICTED OF MANSLAUGHTER, APPARENTLY STANDS
DISQUALIFIED FOR EMPLOYMENT.  SO DOES A COMMUNIST, WHETHER HE BE OF THE
CLOAK-AND-DAGGER VARIETY OR A PALER TYPE.  ARE THOSE CRITERIA
CONSTITUTIONAL?  AN INDIVIDUAL WHO IS DEPRIVED OF EMPLOYMENT FOR SUCH A
REASON COULD RAISE THE QUESTION.  BUT IF THE STANDARD ITSELF HAS NO
RELEVANCY TO THE COMPETENCY OF MEN TO DO THE WORK, WHY MAY NOT THE
COMPACT BE TESTED AT THE VERY THRESHOLD? 

THIS IS A SUBSTANTIAL QUESTION WHICH OUR CASES DO NOT ANSWER.  WE
WRITE HERE ON A SLATE THAT IS FAIRLY CLEAN, EXCEPT FOR REMOTE
ANALOGIES. 

SECOND, ARE THESE PROVISIONS OF THE COMPACT WHICH DISQUALIFY MEN FROM
EMPLOYMENT UNCONSTITUTIONAL AS A BILL OF ATTAINDER?  A FEW YEARS AGO
CONGRESS STRUCK CERTAIN FEDERAL EMPLOYEES FROM THE PAYROLL BECAUSE
CONGRESS THOUGHT THEY WERE "SUBVERSIVES."  WE HELD THAT THAT
DISQUALIFICATION FOR EMPLOYMENT WITHOUT A JUDICIAL TRIAL WAS A BILL OF
ATTAINDER AND THEREFORE UNCONSTITUTIONAL.  UNITED STATES V. LOVETT, 328
U.S. 303.  HERE THE STATE LEGISLATURES, WITH THE APPROVAL OF CONGRESS,
HAVE NOT DONE PRECISELY THAT.  BUT THEY HAVE COME CLOSE TO IT BY
DEFINING A PROSCRIBED CLASS AND BARRING THEM FROM EMPLOYMENT - AGAIN
WITHOUT A JUDICIAL TRIAL.  CF. GARNER V. LOS ANGELES BOARD, 341 U.S.
716. 

PERHAPS A WAY COULD BE FOUND TO SUSTAIN ALL THE CHALLENGED PROVISIONS
OF THE COMPACT.  PERHAPS THEY COULD BE SO CONSTRUED AS TO SAVE ANY AND
ALL INDIVIDUAL RIGHTS.  BUT THE MOTION TO DISMISS OR AFFIRM (26 PAGES
LONG) AND THE REPLY TO IT (51 PAGES LONG) IN NO. 557 ONLY STIR THESE
PROFOUND QUESTIONS AND DO NOT PUT THEM AT REST. 

THE RIGHT TO WORK - WHICH GOES TO THE VERY HEART OF OUR WAY OF LIFE -
IS AT STAKE IN THESE APPEALS.  IF WE CONCLUDE THAT THE COMPACT IS
CONSTITUTIONAL, WE SHOULD GIVE OUR REASONS SO THAT ALL INTERESTS WILL
BE PROTECTED.  CONGRESS EXPECTED AS MUCH IN ALL BUT FRIVOLOUS CASES
COMING HERE BY APPEAL. 
..END :


















FEDERAL COMMUNICATIONS COMMISSION V. AMERICAN BROADCASTING CO., INC. 347
U.S. 284 


NO. 117.  ARGUED FEBRUARY 1, 1954 - DECIDED APRIL 5, 1954 - 110 F. SUPP.
374, AFFIRMED. 


REGULATIONS OF THE FEDERAL COMMUNICATIONS COMMISSION PROVIDING FOR THE
DENIAL OF LICENSES TO RADIO AND TELEVISION BROADCASTING STATIONS WHICH
BROADCAST SO-CALLED "GIVE-AWAY" PROGRAMS, IN WHICH PRIZES ARE GIVEN TO
PERSONS SELECTED BY CHANCE WHO ANSWER CERTAIN QUESTIONS CORRECTLY BUT
WHO ARE NOT REQUIRED TO CONTRIBUTE ANY MONEY OR OTHER VALUABLE
CONSIDERATION, HELD INVALID AS GOING BEYOND THE SCOPE OF 18 U.S.C. SEC.
1304 AND THUS EXCEEDING THE RULE-MAKING POWER OF THE COMMISSION.  PP.
285-297. 

(A)  UNLESS SUCH "GIVE-AWAY" PROGRAMS ARE ILLEGAL UNDER 18 U.S.C.
SEC. 1304, THE COMMISSION CANNOT EMPLOY THE STATUTE TO MAKE THEM SO BY
AGENCY ACTION.  PP. 289-290. 

(B)  THE CONTRIBUTION OF MONEY OR OTHER VALUABLE CONSIDERATION BY THE
CONTESTANTS IS AN ESSENTIAL ELEMENT OF THE OFFENSE PROSCRIBED BY 18
U.S.C. SEC. 1304, WHICH FORBIDS THE BROADCASTING OF "ANY LOTTERY, GIFT
ENTERPRISE, OR SIMILAR SCHEME, OFFERING PRIZES DEPENDENT IN WHOLE OR IN
PART UPON LOT OR CHANCE."  PP. 290-291. 

(C)  THE INCREASED ADVERTISING VALUE OF A "GIVE-AWAY" PROGRAM
RESULTING FROM THE REQUIREMENT, DIRECT OR INDIRECT, THAT HOME
CONTESTANTS LISTEN TO THE PROGRAM DOES NOT CONSTITUTE A VALUABLE
CONSIDERATION FOR PURPOSES OF 18 U.S.C. SEC. 1304.  PP. 291-295. 

(D)  SECTION 1304 OF 18 U.S.C. IS A PENAL STATUTE, AND IT MUST BE
CONSTRUED STRICTLY.  P. 296. 

FEDERAL COMMUNICATIONS COMMISSION V. AMERICAN BROADCASTING CO., INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK.* 

*TOGETHER WITH NO. 118, FEDERAL COMMUNICATIONS COMMISSION V. NATIONAL
BROADCASTING CO., INC., AND NO. 119, FEDERAL COMMUNICATIONS COMMISSION
V. COLUMBIA BROADCASTING SYSTEM, INC., ALSO ON APPEAL FROM THE SAME
COURT. 

THE DISTRICT COURT ENJOINED ENFORCEMENT OF CERTAIN PROVISIONS OF
REGULATIONS OF THE FEDERAL COMMUNICATIONS COMMISSION RELATING TO THE
BROADCASTING OF SO-CALLED "GIVE-AWAY" PROGRAMS.  110 F. SUPP. 374.  ON
DIRECT APPEAL TO THIS COURT UNDER 28 U.S.C. SECS. 1253 AND 2101(B),
AFFIRMED, P. 297. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARE BEFORE US ON DIRECT APPEAL FROM THE DECISION OF A
THREE-JUDGE DISTRICT COURT IN THE SOUTHERN DISTRICT OF NEW YORK,
ENJOINING THE FEDERAL COMMUNICATIONS COMMISSION FROM ENFORCING CERTAIN
PROVISIONS IN ITS RULES RELATING TO THE BROADCASTING OF SO-CALLED "GIVE
AWAY" PROGRAMS.  THE QUESTION PRESENTED IS WHETHER THE ENJOINED
PROVISIONS CORRECTLY INTERPRET SEC. 1304 OF THE UNITED STATES CRIMINAL
CODE, FORMERLY SEC. 316 OF THE COMMUNICATIONS ACT OF 1934.  THIS
STATUTE PROHIBITS THE BROADCASTING OF "  ...  ANY LOTTERY, GIFT
ENTERPRISE, OR SIMILAR SCHEME, OFFERING PRIZES DEPENDENT IN WHOLE OR IN
PART UPON LOT OR CHANCE  ...  ."  (FN1) 

THE APPELLEES ARE NATIONAL RADIO AND TELEVISION BROADCASTING
COMPANIES.  THEY ARE, IN ADDITION, THE OPERATORS OF RADIO AND
TELEVISION STATIONS LICENSED BY THE COMMISSION.  EACH OF THE APPELLEES
BROADCASTS, OVER ITS OWN AND AFFILIATED STATIONS, CERTAIN PROGRAMS
POPULARLY KNOWN AS "GIVE-AWAY" PROGRAMS.  GENERALLY CHARACTERISTIC OF
THIS TYPE OF PROGRAM IS THE DISTRIBUTION OF PRIZES TO HOME LISTENERS,
SELECTED WHOLLY OR IN PART ON THE BASIS OF CHANCE, AS AN AWARD FOR
CORRECTLY SOLVING A GIVEN PROBLEM OR ANSWERING A QUESTION.  (FN2) 

THE RULES CHALLENGED IN THIS PROCEEDING, SECS. 3.192, 3.292, AND
3.656 OF THE COMMISSION'S RULES AND REGULATIONS, WERE DESIGNED TO
PREVENT THE BROADCAST OF SUCH PROGRAMS.  (FN3)  THE RULES ARE
IDENTICALLY WORDED AND APPLY, RESPECTIVELY, TO STANDARD RADIO
BROADCASTING (AM), FM RADIO BROADCASTING, AND TELEVISION BROADCASTING. 
PARAGRAPH (A) OF EACH RULE PROVIDES THAT "AN APPLICATION FOR
CONSTRUCTION PERMIT, LICENSE, RENEWAL OF LICENSE, OR ANY OTHER
AUTHORIZATION FOR THE OPERATION OF A BROADCAST STATION, WILL NOT BE
GRANTED WHERE THE APPLICANT PROPOSES TO FOLLOW OR CONTINUE TO FOLLOW A
POLICY OR PRACTICE OF BROADCASTING  ...  ," PROGRAMS OF A SORT
FORBIDDEN BY SEC. 1304.  PARAGRAPH (B) PROVIDES THAT A PROGRAM WILL
FALL WITHIN THE BAN: 

"  ...  IF IN CONNECTION WITH SUCH PROGRAM A PRIZE CONSISTING OF
MONEY OR THING OF VALUE IS AWARDED TO ANY PERSON WHOSE SELECTION IS
DEPENDENT IN WHOLE OR IN PART UPON LOT OR CHANCE, IF AS A CONDITION OF
WINNING OR COMPETING FOR SUCH PRIZE: 

"(1)  SUCH WINNER OR WINNERS ARE REQUIRED TO FURNISH ANY MONEY OR
THING OF VALUE OR ARE REQUIRED TO HAVE IN THEIR POSSESSION ANY PRODUCT
SOLD, MANUFACTURED, FURNISHED OR DISTRIBUTED BY A SPONSOR OF A PROGRAM
BROADCAST ON THE STATION IN QUESTION; OR: 

"(2)  SUCH WINNER OR WINNERS ARE REQUIRED TO BE LISTENING TO OR
VIEWING THE PROGRAM IN QUESTION ON A RADIO OR TELEVISION RECEIVER; OR: 

"(3)  SUCH WINNER OR WINNERS ARE REQUIRED TO ANSWER CORRECTLY A
QUESTION, THE ANSWER TO WHICH IS GIVEN ON A PROGRAM BROADCAST OVER THE
STATION IN QUESTION OR WHERE AID TO ANSWERING THE QUESTION CORRECTLY IS
GIVEN ON A PROGRAM BROADCAST OVER THE STATION IN QUESTION.  FOR THE
PURPOSES OF THIS PROVISION THE BROADCASTING OF THE QUESTION TO BE
ANSWERED OVER THE RADIO STATION ON A PREVIOUS PROGRAM WILL BE
CONSIDERED AS AN AID IN ANSWERING THE QUESTION CORRECTLY; OR: 

"(4)  SUCH WINNER OR WINNERS ARE REQUIRED TO ANSWER THE PHONE IN A
PRESCRIBED MANNER OR WITH A PRESCRIBED PHRASE, OR ARE REQUIRED TO WRITE
A LETTER IN A PRESCRIBED MANNER OR CONTAINING A PRESCRIBED PHRASE, IF
THE PRESCRIBED MANNER OF ANSWERING THE PHONE OR WRITING THE LETTER OR
THE PRESCRIBED PHRASE TO BE USED OVER THE PHONE OR IN THE LETTER (OR AN
AID IN ASCERTAINING THE PRESCRIBED PHRASE OR THE PRESCRIBED MANNER OF
ANSWERING THE PHONE OR WRITING THE LETTER) IS, OR HAS BEEN, BROADCAST
OVER THE STATION IN QUESTION." 

AFTER PROMULGATION OF THE RULES, THE PRESENT ACTIONS WERE BROUGHT BY
THE APPELLEES.  (FN4)  THE DISTRICT COURT SUSTAINED THE COMMISSION'S
GENERAL AUTHORITY TO ADOPT SUCH RULES, AND SUSTAINED SUBDIVISION (1) OF
PARAGRAPH (B) AS A CORRECT INTERPRETATION OF SEC. 1304.  BUT, WITH ONE
DISSENT, THE COURT HELD THAT SUBDIVISIONS (2), (3), AND (4) WERE BEYOND
THE SCOPE OF SEC. 1304 AND HENCE INVALID.  THE COURT WAS OF THE VIEW
THAT SEC.  1304 APPLIED ONLY TO CONTEST PROGRAMS REQUIRING CONTESTANTS
TO CONTRIBUTE A "PRICE" OR "THING OF VALUE."  (FN5)  WE NOTED PROBABLE
JURISDICTION AND CONSOLIDATED THE CASES FOR ARGUMENT.  (FN6) 

LIKE THE COURT BELOW, WE HAVE NO DOUBT THAT THE COMMISSION,
CONCURRENTLY WITH THE DEPARTMENT OF JUSTICE, HAS POWER TO ENFORCE SEC.
1304.  INDEED, THE COMMISSION WOULD BE REMISS IN ITS DUTIES IF IT
FAILED, IN THE EXERCISE OF ITS LICENSING AUTHORITY, TO AID IN
IMPLEMENTING THE STATUTE, EITHER BY GENERAL RULE OR BY INDIVIDUAL
DECISIONS.  (FN7)  BUT THE COMMISSION'S POWER IN THIS RESPECT IS
LIMITED BY THE SCOPE OF THE STATUTE.  UNLESS THE "GIVE-AWAY" PROGRAMS
INVOLVED HERE ARE ILLEGAL UNDER SEC. 1304, THE COMMISSION CANNOT EMPLOY
THE STATUTE TO MAKE THEM SO BY AGENCY ACTION.  THUS, REDUCED TO ITS
SIMPLEST TERMS, THE ISSUE BEFORE US IS WHETHER THIS TYPE OF PROGRAM
CONSTITUTES A "LOTTERY, GIFT ENTERPRISE, OR SIMILAR SCHEME" PROSCRIBED
BY SEC. 1304. 

ALL THE PARTIES AGREE THAT THERE ARE THREE ESSENTIAL ELEMENTS OF A
"LOTTERY, GIFT ENTERPRISE, OR SIMILAR SCHEME":  (1) THE DISTRIBUTION OF
PRIZES; (2) ACCORDING TO CHANCE; (3) FOR A CONSIDERATION.  (FN8)  THEY
ALSO AGREE THAT PRIZES ON THE PROGRAMS UNDER REVIEW ARE DISTRIBUTED
ACCORDING TO CHANCE, BUT THEY FALL OUT ON THE QUESTION OF WHETHER THE
HOME CONTESTANT FURNISHES THE NECESSARY CONSIDERATION. 

THE COMMISSION CONTENDS THAT THERE IS SUCH CONSIDERATION; IN ITS
BRIEF, IT URGES THAT THESE PROGRAMS: 

"  ...  ARE NOTHING BUT AGE OLD LOTTERIES IN A SLIGHTLY NEW FORM. 
THE NEW FORM RESULTS FROM THE FACT THAT THE SCHEMES HERE ARE ILLICIT
APPENDAGES TO LEGITIMATE ADVERTISING.  THE CLASSIC LOTTERY LOOKED TO
ADVANCE CASH PAYMENTS BY THE PARTICIPANTS AS THE SOURCE OF PROFIT; THE
RADIO GIVE-AWAY LOOKS TO THE EQUALLY MATERIAL BENEFITS TO STATIONS AND
ADVERTISERS FROM AN INCREASED RADIO AUDIENCE TO BE EXPOSED TO
ADVERTISING." 

IT CONTENDS THAT CONSIDERATION IN THE FORM OF MONEY OR A THING OF
VALUE IS NOT ESSENTIAL, AND THAT A COMMERCIAL BENEFIT TO THE PROMOTER
SATISFIES THE CONSIDERATION REQUIREMENT: 

"  ...  WHERE A SCHEME OF CHANCE IS SUCCESSFULLY DESIGNED TO REAP
PROFITS FOR ITS PROMOTER, THERE WILL ULTIMATELY BE CONSIDERATION
FLOWING FROM THE PARTICIPANTS, AND IT IS OF NO CONSEQUENCE WHETHER SUCH
CONSIDERATION BE DIRECT OR INDIRECT.  IN EITHER EVENT, THE GAMBLING
SPIRIT - THE LURE OF OBTAINING SOMETHING FOR NOTHING OR ALMOST NOTHING
IS EXPLOITED FOR THE BENEFIT OF THE PROMOTER OF THE SCHEME." 

AS AGAINST THIS CLAIM THE APPELLEES INSIST THAT SOMETHING MORE IS
REQUIRED THAN JUST A BENEFIT TO THE PROMOTER; THAT THE PARTICIPATION OF
THE HOME AUDIENCE BY MERELY LISTENING TO A BROADCAST DOES NOT
CONSTITUTE THE NECESSARY CONSIDERATION. 

FOR A "LOTTERY, GIFT ENTERPRISE, OR SIMILAR SCHEME."  NOR DO THE POSTAL
LOTTERY STATUTES FROM WHICH THIS LANGUAGE WAS TAKEN.  (FN9)  THE
LEGISLATIVE HISTORY OF SEC. 1304 AND THE POSTAL STATUTES IS SIMILARLY
UNILLUMINATING.  (FN10)  FOR GUIDANCE, THEREFORE, WE MUST LOOK
PRIMARILY TO AMERICAN DECISIONS, BOTH JUDICIAL AND ADMINISTRATIVE,
CONSTRUING COMPARABLE ANTILOTTERY LEGISLATION. 

ENFORCING SUCH LEGISLATION HAS LONG BEEN A DIFFICULT TASK.  LAW
ENFORCEMENT OFFICERS, FEDERAL AND STATE, HAVE BEEN PLAGUED WITH AS MANY
TYPES OF LOTTERIES AS THE SEEMINGLY INEXHAUSTIBLE INGENUITY OF THEIR
PROMOTERS COULD DEVISE IN THEIR EFFORTS TO CIRCUMVENT THE LAW.  WHEN
THEIR SCHEMES REACHED THE COURTS, THE DECISION, OF NECESSITY, USUALLY
TURNED ON WHETHER THE SCHEME, ON ITS OWN PECULIAR FACTS, CONSTITUTED A
LOTTERY.  SO VARIED HAVE BEEN THE TECHNIQUES USED BY PROMOTERS TO
CONCEAL THE JOINT FACTORS OF PRIZE, CHANCE, AND CONSIDERATION, AND SO
CLEVER HAVE THEY BEEN IN APPLYING THESE TECHNIQUES TO FEIGNED AS WELL
AS LEGITIMATE BUSINESS ACTIVITIES, THAT IT HAS OFTEN BEEN DIFFICULT TO
APPLY THE DECISION OF ONE CASE TO THE FACTS OF ANOTHER. 

AND SO IT IS HERE.  WE FIND NO DECISIONS PRECISELY IN POINT ON THE
FACTS OF THE CASES BEFORE US. THE COURTS HAVE DEFINED CONSIDERATION IN
VARIOUS WAYS, BUT SO FAR AS WE ARE AWARE NONE HAS EVER HELD THAT A
CONTESTANT'S LISTENING AT HOME TO A RADIO OR TELEVISION PROGRAM
SATISFIES THE CONSIDERATION REQUIREMENT.  (FN11)  SOME COURTS - WITH
VIGOROUS PROTEST FROM OTHERS - HAVE HELD THAT THE REQUIREMENT IS
SATISFIED BY A "RAFFLE" SCHEME GIVING FREE CHANCES TO PERSONS WHO GO TO
A STORE TO REGISTER IN ORDER TO PARTICIPATE IN THE DRAWING OF A PRIZE,
(FN12) AND SIMILARLY BY A "BANK NIGHT" SCHEME GIVING FREE CHANCES TO
PERSONS WHO GATHER IN FRONT OF A MOTION PICTURE THEATRE IN ORDER TO
PARTICIPATE IN A DRAWING HELD FOR THE PRIMARY BENEFIT OF THE PAID
PATRONS OF THE THEATRE.  (FN13) BUT SUCH CASES DIFFER SUBSTANTIALLY
FROM THE CASES BEFORE US.  TO BE ELIGIBLE FOR A PRIZE ON THE "GIVE
AWAY" PROGRAMS INVOLVED HERE, NOT A SINGLE HOME CONTESTANT IS REQUIRED
TO PURCHASE ANYTHING OR PAY AN ADMISSION PRICE OR LEAVE HIS HOME TO
VISIT THE PROMOTER'S PLACE OF BUSINESS; THE ONLY EFFORT REQUIRED FOR
PARTICIPATION IS LISTENING.  (FN14) 

WE BELIEVE THAT IT WOULD BE STRETCHING THE STATUTE TO THE BREAKING
POINT TO GIVE IT AN INTERPRETATION THAT WOULD MAKE SUCH PROGRAMS A
CRIME.  PARTICULARLY IS THIS TRUE WHEN THROUGH THE YEARS THE POST
OFFICE DEPARTMENT AND THE DEPARTMENT OF JUSTICE HAVE CONSISTENTLY GIVEN
THE WORDS "LOTTERY, GIFT ENTERPRISE, OR SIMILAR SCHEME" A CONTRARY
ADMINISTRATIVE INTERPRETATION.  THUS THE SOLICITOR OF THE POST OFFICE
DEPARTMENT HAS REPEATEDLY RULED THAT THE POSTAL LOTTERY LAWS DO NOT
PRECLUDE THE MAILING OF CIRCULARS ADVERTISING THE TYPE OF "GIVE-AWAY"
PROGRAM HERE UNDER ATTACK.  (FN15)  SIMILARLY, THE ATTORNEY GENERAL -
CHARGED DIRECTLY WITH THE ENFORCEMENT OF FEDERAL CRIMINAL LAWS - HAS
REFUSED TO BRING CRIMINAL ACTION AGAINST BROADCASTERS OF SUCH
PROGRAMS.  (FN16)  AND IN THIS VERY ACTION, IT IS NOTEWORTHY THAT THE
DEPARTMENT OF JUSTICE HAS NOT JOINED THE COMMISSION IN APPEALING THE
DECISION BELOW.  IT IS TRUE, AS CONTENDED BY THE COMMISSION, THAT THESE
ARE NOT CRIMINAL CASES, BUT IT IS A CRIMINAL STATUTE THAT WE MUST
INTERPRET.  THERE CANNOT BE ONE CONSTRUCTION FOR THE FEDERAL
COMMUNICATIONS COMMISSION AND ANOTHER FOR THE DEPARTMENT OF JUSTICE. 
IF WE SHOULD GIVE SEC. 1304 THE BROAD CONSTRUCTION URGED BY THE
COMMISSION, THE SAME CONSTRUCTION WOULD LIKEWISE APPLY IN CRIMINAL
CASES.  WE DO NOT BELIEVE THIS CONSTRUCTION CAN BE SUSTAINED.  NOT ONLY
DOES IT LACK SUPPORT IN THE DECIDED CASES, JUDICIAL AND ADMINISTRATIVE,
BUT ALSO IT WOULD DO VIOLENCE TO THE WELL-ESTABLISHED PRINCIPLE THAT
PENAL STATUTES ARE TO BE CONSTRUED STRICTLY. 

IT IS APPARENT THAT THESE SO-CALLED "GIVE-AWAY" PROGRAMS HAVE LONG
BEEN A MATTER OF CONCERN TO THE FEDERAL COMMUNICATIONS COMMISSION; THAT
IT BELIEVES THESE PROGRAMS TO BE THE OLD LOTTERY EVIL UNDER A NEW
GUISE, AND THAT THEY SHOULD BE STRUCK DOWN AS ILLEGAL DEVICES APPEALING
TO CUPIDITY AND THE GAMBLING SPIRIT.  IT UNSUCCESSFULLY SOUGHT TO HAVE
THE DEPARTMENT OF JUSTICE TAKE CRIMINAL ACTION AGAINST THEM.  (FN17)
LIKEWISE, WITHOUT SUCCESS, IT URGED CONGRESS TO AMEND THE LAW TO
SPECIFICALLY PROHIBIT THEM.  (FN18)  THE COMMISSION NOW SEEKS TO
ACCOMPLISH THE SAME RESULT THROUGH AGENCY REGULATIONS.  IN DOING SO,
THE COMMISSION HAS OVERSTEPPED THE BOUNDARIES OF INTERPRETATION AND
HENCE HAS EXCEEDED ITS RULE-MAKING POWER.  REGARDLESS OF THE DOUBTS
HELD BY THE COMMISSION AND OTHERS AS TO THE SOCIAL VALUE OF THE
PROGRAMS HERE UNDER CONSIDERATION, SUCH ADMINISTRATIVE EXPANSION OF
SEC. 1304 DOES NOT PROVIDE THE REMEDY.  (FN19) 

THE JUDGMENTS ARE AFFIRMED. 

FN1  18 U.S.C. SEC. 1304 (DERIVED FROM FORMER SEC. 316 OF THE
COMMUNICATIONS ACT OF 1934, 48 STAT. 1088-1089, REPEALED BY 62 STAT.
862, 866):

"WHOEVER BROADCASTS BY MEANS OF ANY RADIO STATION FOR WHICH A LICENSE
IS REQUIRED BY ANY LAW OF THE UNITED STATES, OR WHOEVER, OPERATING ANY
SUCH STATION, KNOWINGLY PERMITS THE BROADCASTING OF, ANY ADVERTISEMENT
OF OR INFORMATION CONCERNING ANY LOTTERY, GIFT ENTERPRISE, OR SIMILAR
SCHEME, OFFERING PRIZES DEPENDENT IN WHOLE OR IN PART UPON LOT OR
CHANCE, OR ANY LIST OF THE PRIZES DRAWN OR AWARDED BY MEANS OF ANY SUCH
LOTTERY, GIFT ENTERPRISE, OR SCHEME, WHETHER SAID LIST CONTAINS ANY
PART OR ALL OF SUCH PRIZES, SHALL BE FINED NOT MORE THAN $1,000 OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH.    "EACH DAY'S BROADCASTING
SHALL CONSTITUTE A SEPARATE OFFENSE." 

FN2  EXAMPLES OF THE "GIVE-AWAY" PROGRAMS INVOLVED HERE ARE "STOP THE
MUSIC" (AMERICAN BROADCASTING COMPANY), "WHAT'S MY NAME" (NATIONAL
BROADCASTING COMPANY), AND "SING IT AGAIN" (COLUMBIA BROADCASTING
SYSTEM). 

"STOP THE MUSIC" IS DESCRIBED IN AMERICAN'S COMPLAINT IN NO. 117 AS
FOLLOWS:  THE HOME CONTESTANTS ARE CALLED ON THE TELEPHONE DURING THE
PROGRAM.  ON THE RADIO VERSION, HOME CONTESTANTS ARE SELECTED AT RANDOM
FROM TELEPHONE DIRECTORIES.  ON THE TELEVISION VERSION, HOME
CONTESTANTS ARE SELECTED BY LOT FROM AMONG THOSE LISTENERS WHO EXPRESS
IN ADVANCE, THROUGH POSTCARDS SENT TO THE NETWORK, THEIR DESIRE TO
PARTICIPATE.  ON BOTH THE RADIO AND TELEVISION VERSIONS, HOWEVER, THE
HOME CONTESTANT IS NOT REQUIRED TO BE LISTENING TO THE BROADCAST AT THE
TIME HE IS CALLED IN ORDER TO PARTICIPATE.  WHEN CALLED, THE HOME
CONTESTANT IS ASKED TO GIVE THE TITLE OF A MUSICAL SELECTION THAT HAS
JUST BEEN PLAYED.  IN THE EVENT HE WAS NOT LISTENING, OR FOR SOME OTHER
REASON DESIRES TO HAVE THE TUNE REPEATED, THE MASTER OF CEREMONIES HUMS
OR SINGS IT TO HIM OVER THE TELEPHONE.  IF HE ANSWERS CORRECTLY, HE
RECEIVES A MERCHANDISE PRIZE; IF NOT, HE GETS A LESS VALUABLE
"CONSOLATION" PRIZE AND A MEMBER OF THE STUDIO AUDIENCE IS THEN GIVEN
AN OPPORTUNITY TO WIN THE MERCHANDISE PRIZE BY IDENTIFYING THE SAME
TUNE.  IF THE HOME CONTESTANT ANSWERS CORRECTLY, HE RECEIVES, IN
ADDITION TO THE MERCHANDISE PRIZE, AN OPPORTUNITY TO IDENTIFY ANOTHER
TUNE, CALLED THE "MYSTERY MELODY."  IF HE IDENTIFIES THIS TUNE, HE WINS
THE "JACKPOT" PRIZE, USUALLY VALUED AT SEVERAL THOUSAND DOLLARS. 
SHOULD HE FAIL TO IDENTIFY THE "MYSTERY MELODY," ANOTHER HOME
CONTESTANT IS CALLED AND THE PROCESS IS REPEATED.  ADDITIONS TO THE
"JACKPOT" PRIZE ARE MADE EACH WEEK SO LONG AS THE "MYSTERY MELODY"
REMAINS UNIDENTIFIED. 

"WHAT'S MY NAME" IS DESCRIBED IN NATIONAL'S COMPLAINT IN NO. 118 AS
FOLLOWS:  PRIZES ARE AWARDED TO CONTESTANTS FOR CORRECTLY IDENTIFYING
FAMOUS PERSONS ON THE BASIS OF CLUES GIVEN BY THE MASTER OF CEREMONIES
AND IN A SHORT SKIT PERFORMED BY PROFESSIONAL ACTORS.  ALL BUT ONE OF
THE CONTESTANTS ON THE PROGRAM ARE CHOSEN FROM MEMBERS OF THE STUDIO
AUDIENCE.  THE REMAINING CONTESTANT IS CHOSEN AT RANDOM FROM POSTCARDS
SENT IN BY LISTENERS, AND IS CALLED ON THE TELEPHONE DURING THE
PROGRAM.  FOR ANSWERING THE TELEPHONE, HE IS AWARDED A WATCHBAND
MANUFACTURED BY THE SPONSOR OF THE PROGRAM AND IS ALSO GIVEN THE
OPPORTUNITY TO WIN A VALUABLE "JACKPOT" PRIZE IN GOVERNMENT BONDS BY
IDENTIFYING THE FAMOUS PERSON DESCRIBED IN THE "JACKPOT" CLUES.  IF THE
HOME CONTESTANT FAILS TO MAKE A CORRECT IDENTIFICATION, THE AMOUNT OF
THE "JACKPOT" IS ADDED TO THE "JACKPOT" FOR THE FOLLOWING WEEK'S
PROGRAM.  THE SUBJECT OF THE "JACKPOT" CLUES, HOWEVER, IS CHANGED EVERY
WEEK. 

"SING IT AGAIN" IS DESCRIBED IN COLUMBIA'S COMPLAINT IN NO. 119 AS
FOLLOWS:  PERFORMERS SING A POPULAR SONG AND THEN REPEAT IT BUT THIS
TIME WITH PARODY LYRICS DESCRIBING SOME PERSON, PLACE, OR EVENT. 
CONTESTANTS, SELECTED AT RANDOM FROM TELEPHONE DIRECTORIES, ARE CALLED
BY LONG DISTANCE TELEPHONE DURING THE PROGRAM.  IF THE CONTESTANT
CORRECTLY IDENTIFIES THE SUBJECT DESCRIBED BY THE PARODY LYRICS, HE
WINS A MERCHANDISE PRIZE AND AN OPPORTUNITY TO WIN A "JACKPOT" PRIZE BY
IDENTIFYING THE "PHANTOM VOICE," THE VOICE OF A FAMOUS BUT UNREVEALED
PERSON.  CLUES AS TO THE IDENTITY OF THE "PHANTOM VOICE" ARE GIVEN ON
THE PROGRAM AND ON OTHER PROGRAMS BROADCAST OVER THE SAME NETWORK.  THE
"JACKPOT" IS INCREASED WEEK BY WEEK UNTIL THE CORRECT IDENTIFICATION IS
MADE.  IF THE HOME CONTESTANT FAILS TO IDENTIFY THE SUBJECT OF THE
PARODY LYRICS, HE RECEIVES A "CONSOLATION PRIZE," AND A MEMBER OF THE
STUDIO AUDIENCE IS GIVEN THE OPPORTUNITY TO ANSWER AND WIN THE
MERCHANDISE PRIZE. 

FN3  47 CFR, 1952 CUM. SUPP., SECS. 3.192, 3.292, 3.656.  THE
LANGUAGE OF THE RULES IS BROAD ENOUGH TO COVER CONTEST PROGRAMS DRAWING
CONTESTANTS SOLELY FROM MEMBERS OF THE STUDIO AUDIENCE.  IN THE COURT
BELOW, HOWEVER, THE COMMISSION TOOK THE POSITION THAT SUCH COVERAGE WAS
NOT INTENDED, AND THE CONTROVERSY WAS DELIMITED TO PROGRAMS INVOLVING
THE DISTRIBUTION OF PRIZES TO CONTESTANTS PARTICIPATING FROM THEIR
HOMES.  110 F. SUPP. 374, 381. 

FN4  THE ACTIONS WERE BROUGHT UNDER SEC. 402(A) OF THE COMMUNICATIONS
ACT OF 1934, 48 STAT. 1093, 47 U.S.C. SEC. 402(A); 28 U.S.C. SECS.
1336, 1398, 2284, 2321-2325; AND SEC.  10 OF THE ADMINISTRATIVE
PROCEDURE ACT, 60 STAT. 243, 5 U.S.C. SEC. 1009.  PUB. L. NO. 901, 81ST
CONG., 2D SESS., 64 STAT. 1129, 5 U.S.C. SEC. 1031, HAS SINCE CHANGED
THE PROCEDURE UNDER SEC. 402(A), BUT IS INAPPLICABLE TO ACTIONS
COMMENCED PRIOR TO ITS ENACTMENT. 

FN5  110 F. SUPP. 374. 

FN6  346 U.S. 808. 

FN7  THE COMMISSION IS AUTHORIZED BY SEC. 4(I) OF THE COMMUNICATIONS
ACT TO "MAKE SUCH RULES AND REGULATIONS, AND ISSUE SUCH ORDERS, ...  AS
MAY BE NECESSARY IN THE EXECUTION OF ITS FUNCTIONS"; BY SEC. 303(R) TO
"MAKE SUCH RULES AND REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS AND
CONDITIONS, NOT INCONSISTENT WITH LAW, AS MAY BE NECESSARY TO CARRY OUT
THE PROVISIONS OF THIS CHAPTER"; BY SEC. 307(A) AND SEC. 309(A) TO
GRANT STATION LICENSES AND LICENSE RENEWALS "IF PUBLIC CONVENIENCE,
INTEREST, OR NECESSITY" WOULD THEREBY BE SERVED; BY SEC. 312(A) TO
REVOKE A LICENSE FOR A VIOLATION OF ANY REGULATION AUTHORIZED BY THE
ACT.  48 STAT. 1068, 47 U.S.C. SEC. 154(I),; 50 STAT. 191, 47 U.S.C.
SEC. 303(R); 48 STAT. 1083, 47 U.S.C. SEC. 307(A); 48 STAT. 1085, 47
U.S.C. SEC. 309(A); 48 STAT. 1086-1087, 47 U.S.C. SEC. 312(A).  THE
"PUBLIC INTEREST, CONVENIENCE, OR NECESSITY" STANDARD FOR THE ISSUANCE
OF LICENSES WOULD SEEM TO IMPLY A REQUIREMENT THAT THE APPLICANT BE LAW
ABIDING.  IN ANY EVENT, THE STANDARD IS SUFFICIENTLY BROAD TO PERMIT
THE COMMISSION TO CONSIDER THE APPLICANT'S PAST OR PROPOSED VIOLATION
OF A FEDERAL CRIMINAL STATUTE ESPECIALLY DESIGNED TO BAR CERTAIN
CONDUCT BY OPERATORS OF RADIO AND TELEVISION STATIONS.  AND IF THIS
CONSIDERATION IS A PROPER ONE IN INDIVIDUAL CASES, THERE IS NO REASON
WHY IT MAY NOT BE STATED IN ADVANCE BY THE COMMISSION IN INTERPRETATIVE
REGULATIONS DEFINING THE PROHIBITED CONDUCT WITH GREATER CLARITY.  SEE
NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 222-224; CF.
SOUTHERN STEAMSHIP CO. V. NATIONAL LABOR RELATIONS BOARD, 316 U.S. 31,
46-47. 

FN8  A TYPICAL "LOTTERY" IS A SCHEME IN WHICH TICKETS ARE SOLD AND
PRIZES ARE AWARDED AMONG THE TICKET HOLDERS BY LOT.  SEE STONE V.
MISSISSIPPI, 101 U.S. 814.  A TYPICAL "GIFT ENTERPRISE" DIFFERS FROM
THIS IN THAT IT INVOLVES THE PURCHASE OF MERCHANDISE OR OTHER PROPERTY;
THE PURCHASER RECEIVES, IN ADDITION TO THE MERCHANDISE OR OTHER
PROPERTY, A "FREE" CHANCE IN A DRAWING.  SEE HORNER V. UNITED STATES,
147 U.S. 449.  BUT WHATEVER MAY BE THE FACTUAL DIFFERENCES BETWEEN A
"LOTTERY," A "GIFT ENTERPRISE," AND A "SIMILAR SCHEME," THE TRADITIONAL
TESTS OF CHANCE, PRIZE, AND CONSIDERATION ARE APPLICABLE TO EACH.  WE
ARE AWARE OF NO DECISION, FEDERAL OR STATE, WHICH HAS DISTINGUISHED
AMONG THEM ON THE BASIS OF THEIR LEGAL ELEMENTS. 

FN9  SECTION 1304 IS ONE OF FIVE SECTIONS - SEC. 1301 THROUGH SEC.
1305 - WHICH CONSTITUTE "CHAPTER 61 - LOTTERIES" OF TITLE 18.  SECTION
1305, ADDED IN 1950, EXEMPTS CERTAIN "FISHING CONTESTS" FROM THE
OPERATION OF THE OTHER FOUR SECTIONS.  SECTION 1301 PROHIBITS THE
IMPORTING OR TRANSPORTING OF LOTTERY TICKETS; SEC. 1302, THE MAILING OF
LOTTERY TICKETS AND RELATED MATTER; SEC. 1303, THE PARTICIPATION IN
LOTTERY SCHEMES BY POSTMASTERS AND POSTAL EMPLOYEES; AND SEC. 1304, THE
BROADCASTING OF LOTTERY INFORMATION.  THESE FOUR SECTIONS USE THE SAME
TERMINOLOGY - "ANY LOTTERY, GIFT ENTERPRISE, OR SIMILAR SCHEME,
OFFERING PRIZES DEPENDENT IN WHOLE OR IN PART UPON LOT OR CHANCE." 
THIS LANGUAGE FIRST APPEARED IN THE 1909 AMENDMENTS TO THE FEDERAL
LOTTERY LAWS.  35 STAT. 1129, 1130, 1136.  IT WAS ADOPTED VERBATIM IN
SEC.  316 OF THE COMMUNICATIONS ACT OF 1934, WHICH WAS THE FIRST
FEDERAL STATUTE TO BAN THE BROADCASTING OF LOTTERIES.  WITH SLIGHT
MODIFICATIONS NOT MATERIAL HERE, SEC. 316 BECAME SEC. 1304 OF THE
CRIMINAL CODE IN THE 1948 REVISION OF TITLE 18. 

FOR THE EARLY HISTORY OF LOTTERIES IN THIS COUNTRY, SEE SPOFFORD,
LOTTERIES IN AMERICAN HISTORY, AT P. 171 OF 1892 REPORT OF AMERICAN
HISTORICAL ASSOCIATION, S. MISC. DOC. NO. 57, 52D CONG., 2D SESS. 

FN10  SEE S. REP. NO. 1620, 80TH CONG., 2D SESS. (1948); H.R. REP.
NO. 304, 80TH CONG., 1ST SESS., P. A99 (1947); S. REP. NO. 781, 73D
CONG., 2D SESS., P. 8 (1934); H.R. REP.  NO. 1850, 73D CONG., 2D SESS.
(1934); H.R. REP. NO. 1918, 73D CONG., 2D SESS., P. 49 (1934); S. REP.
NO. 564, 72D CONG., 1ST SESS., P. 10 (1932); H.R. REP. NO. 221, 72
CONG., 1ST SESS., P. 8 (1932); S. REP. NO. 10, PART 1, 60TH CONG., 1ST
SESS., P. 23 (1908); H.R. REP.  NO. 2, PART 1, 60TH CONG., 1ST SESS.,
P. 22 (1908). 

FN11  IN THE ONLY PREVIOUS DECISION ON THE LEGALITY OF A "GIVE-AWAY"
PROGRAM OF THE TYPE INVOLVED HERE, A STATE TRIAL COURT HELD THAT THE
PROGRAM DID NOT CONSTITUTE A LOTTERY BECAUSE THE CONSIDERATION ELEMENT
WAS LACKING.  CLEF, INC. V. PEORIA BROADCASTING CO., EQUITY NO. 21368,
CIRCUIT COURT OF PEORIA COUNTY, ILLINOIS (1939). 

SIMILARLY, CASES UNDER THE POSTAL LOTTERY LAWS (SEE NOTE 9, SUPRA)
APPEAR TO BE UNIFORM IN REQUIRING A "VALUABLE" CONSIDERATION FOR
"LOTTERY, GIFT ENTERPRISE, OR SIMILAR SCHEME."  SEE GARDEN CITY CHAMBER
OF COMMERCE, INC. V. WAGNER, 100 F. SUPP. 769 (E.D.N.Y.), STAY DENIED,
192 F.2D 240 (C.A.2D CIR.); POST PUBLISHING CO. V. MURRAY, 230 F. 773
(C.A. 1ST CIR.), CERT. DENIED, 241 U.S. 675.  BUT CF. DICTUM IN
BROOKLYN DAILY EAGLE V. VOORHIES, 181 F. 579, 581-582 (C.C.E.D.N.Y.). 

FN12  A LEADING CASE IS MAUGHS V. PORTER, 157 VA. 415, 161 S.E. 242;
SEE ALSO STATE EX REL. REGEZ V. BLUMER, 236 WIS. 129, 294 N.W. 491. 
CONTRA, CROSS V. PEOPLE, 18 COLO. 321, 32 P. 821; CF. GARDEN CITY
CHAMBER OF COMMERCE, INC. V. WAGNER, 100 F. SUPP. 769 (E.D.N.Y.), STAY
DENIED, 192 F.2D 240 (C.A.2D CIR.).  FOR CRITICAL COMMENTARY ON THE
MAUGHS DECISION, SUPRA, SEE NOTES, 18 VA. L. REV. 465 AND 80 U. OF PA.
L. REV. 744; PICKETT, CONTESTS AND THE LOTTERY LAWS, 45 HARV. L. REV.
1196, 1206. 

FN13  E.G., AFFILIATED ENTERPRISES, INC. V. WALLER, 40 DEL. 28, 5
A.2D 257; AFFILIATED ENTERPRISES, INC. V. GANTZ, 86 F.2D 597 (C.A. 10TH
CIR.).  CONTRA, E.G., DARLINGTON THEATRES, INC. V. COKER, 190 S.C. 282,
2 S.E.2D 782; AFFILIATED ENTERPRISES, INC. V. ROCK-OLA MFG. CORP., 23
F. SUPP. 3 (N.D. ILL.). 

FN14  SOME OF THE PROGRAMS INVOLVED HERE (E.G., "STOP THE MUSIC,"
DESCRIBED IN NOTE 2, SUPRA) DO NOT EVEN MAKE THIS REQUIREMENT.  AS A
PRACTICAL MATTER, HOWEVER, FEW HOME CONTESTANTS ON A "GIVE-AWAY"
PROGRAM WOULD BE IN A POSITION TO ANSWER CORRECTLY THE QUESTIONS ASKED
OF THEM UNLESS THEY LISTENED TO THE PROGRAM. 

FN15  IN 1949 THE SOLICITOR RULED THAT MATERIAL RELATING TO "STOP THE
MUSIC" (DESCRIBED IN NOTE 2, SUPRA) WOULD BE MAILABLE.  IN 1950 HE
RULED THAT MATERIAL RELATING TO A COMPARABLE CONTEST CONDUCTED ON THE
PROGRAM "TRUTH OR CONSEQUENCES" WOULD BE MAILABLE.  WHILE EARLIER
RULINGS ON A "GIVE-AWAY" PROGRAM CALLED "MU$ICO" HAD BEEN TO THE
CONTRARY, THE SOLICITOR IN 1949 INFORMALLY ADVISED THAT THE MATERIAL
RELATING TO THE PROGRAM WOULD BE MAILABLE.  THESE UNREPORTED RULINGS
WERE MADE PART OF THE RECORD BELOW. 

IN ACCORD WITH THESE RULINGS, THE SOLICITOR IN 1947 HAD INSTRUCTED
LOCAL POSTMASTERS THAT AT LEAST "AN EXPENDITURE OF SUBSTANTIAL EFFORT
OR TIME" WAS REQUIRED IN ORDER TO FIND AN ENTERPRISE TO BE A "LOTTERY,
GIFT ENTERPRISE, OR SIMILAR SCHEME."  THE INSTRUCTIONS PROVIDED: 

"IN ORDER FOR A PRIZE SCHEME TO BE HELD IN VIOLATION OF THIS SECTION,
IT IS NECESSARY TO SHOW (IN ADDITION TO THE FACT THAT THE PRIZES ARE
AWARDED BY MEANS OF LOT OR CHANCE) THAT THE 'CONSIDERATION' INVOLVES,
FOR EXAMPLE, THE PAYMENT OF MONEY FOR THE PURCHASE OF MERCHANDISE,
CHANCE OR ADMISSION TICKET, OR AS PAYMENT ON AN ACCOUNT, OR REQUIRES AN
EXPENDITURE OF SUBSTANTIAL EFFORT OR TIME.  ON THE OTHER HAND, IF IT IS
REQUIRED MERELY THAT ONE'S NAME BE REGISTERED AT A STORE IN ORDER TO BE
ELIGIBLE FOR THE PRIZE, CONSIDERATION IS NOT DEEMED TO BE PRESENT." 
POSTAL BULLETIN, FEB. 13, 1947.   THE ITALICIZED LANGUAGE, SUPRA, WAS
JUDICIALLY CONFIRMED IN GARDEN CITY CHAMBER OF COMMERCE, INC. V.
WAGNER, 100 F. SUPP. 769 (E.D.N.Y.), STAY DENIED, 192 F.2D 240 (C.A.2D
CIR.).  IN 1953, ON THE BASIS OF THE GARDEN CITY CASE AND THE DISTRICT
COURT DECISION IN THIS CASE, THE SOLICITOR ISSUED NEW INSTRUCTIONS
FURTHER NARROWING THE MEANING OF "AN EXPENDITURE OF SUBSTANTIAL EFFORT
OR TIME."  POSTAL BULLETIN, JUNE 4, 1953. 

FN16  APPARENTLY NO PROSECUTIONS HAVE EVER BEEN INSTITUTED UNDER
EITHER THE FORMER SEC.  316 OF THE COMMUNICATIONS ACT OR THE PRESENT
SEC. 1304 OF THE CRIMINAL CODE.  IN A SERIES OF LETTERS MADE PART OF
THE RECORD BELOW, THE CHAIRMAN OF THE COMMISSION IN 1940 URGED THE
ATTORNEY GENERAL TO INSTITUTE CRIMINAL PROCEEDINGS AGAINST A NUMBER OF
STATIONS BECAUSE OF THEIR BROADCASTING OF "GIVE-AWAY" PROGRAMS SIMILAR
TO THOSE INVOLVED HERE.  IN RESPONSE TO EACH LETTER, THE ATTORNEY
GENERAL ADVISED THAT "CAREFUL CONSIDERATION HAS BEEN GIVEN TO THIS
MATTER AND IT HAS BEEN CONCLUDED THAT NO ACTION IS WARRANTED BY THIS
DEPARTMENT." 

FN17  SEE NOTE 16, SUPRA. 

FN18  IN A LETTER MADE PART OF THE RECORD BELOW, THE CHAIRMAN OF THE
COMMISSION IN 1943 URGED THE SENATE INTERSTATE COMMERCE COMMITTEE TO
APPROVE A PROPOSED AMENDMENT TO SEC.  316 OF THE COMMUNICATIONS ACT,
LATER TO BECOME SEC. 1304 OF THE CRIMINAL CODE.  THE PROPOSED AMENDMENT
WOULD HAVE RETAINED THE EXISTING LANGUAGE AS TO "ANY LOTTERY, GIFT
ENTERPRISE, OR SIMILAR SCHEME," BUT WOULD HAVE EXTENDED THE PROHIBITION
TO "ANY PROGRAM WHICH OFFERS MONEY, PRIZES, OR OTHER GIFTS TO MEMBERS
OF THE RADIO AUDIENCE (AS DISTINGUISHED FROM THE STUDIO AUDIENCE)
SELECTED IN WHOLE OR IN PART BY LOT OR CHANCE."  NO ACTION WAS EVER
TAKEN ON THE PROPOSAL.    FN19  CF. UNITED STATES V. HALSETH, 342 U.S.
277, 280-281. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE DECISION OF THESE CASES. 
..END :








ST. JOE PAPER CO. V. ATLANTIC COAST LINE RAILROAD CO. 347 U.S. 298 


NO. 24.  ARGUED OCTOBER 15, 1953 - DECIDED APRIL 5, 1954 - 201 F.2D 325,
REVERSED. 


THE INTERSTATE COMMERCE COMMISSION DOES NOT HAVE THE POWER UNDER SEC.
77 OF THE BANKRUPTCY ACT TO INITIATE AND SUBMIT TO A DISTRICT COURT A
PLAN OF REORGANIZATION WHEREBY A DEBTOR RAILROAD WOULD BE COMPELLED TO
MERGE WITH ANOTHER RAILROAD HAVING NO PRIOR CONNECTION WITH THE
DEBTOR.  PP. 299-315. 

(A)  SUBSECTION (B)(5) OF SEC. 77 OF THE BANKRUPTCY ACT DOES NOT GIVE
TO THE COMMISSION A POWER WHICH CONGRESS HAS REPEATEDLY DENIED TO THE
COMMISSION UNDER THE INTERSTATE COMMERCE ACT - I.E., THE POWER TO
INITIATE THE MERGER OR CONSOLIDATION OF TWO INDEPENDENT RAILROADS.  PP.
303-306. 

(B)  THE "CONSISTENCY" CLAUSE OF SEC. 77(F) OF THE BANKRUPTCY ACT
INCORPORATES BY REFERENCE SEC. 5 OF THE INTERSTATE COMMERCE ACT, AS
AMENDED, UNDER WHICH A MERGER OF TWO INDEPENDENT CARRIERS MAY BE
APPROVED BY THE COMMISSION ONLY IF IT ORIGINATES AS A VOLUNTARY
PROPOSAL BY THE MERGING CARRIERS.  PP. 306-310. 

ST. JOE PAPER CO. ET AL. V. ATLANTIC COAST LINE RAILROAD CO. 

CERTIORARI TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.* 

*TOGETHER WITH NO. 33, LYNCH ET AL. V. ATLANTIC COAST LINE RAILROAD
CO.; NO. 36, AIRD ET AL., TRUSTEES, V. ATLANTIC COAST LINE RAILROAD
CO.; AND NO. 37, WELBON ET AL. V. ATLANTIC COAST LINE RAILROAD CO., ALL
ON CERTIORARI TO THE SAME COURT. 

IN A RAILROAD REORGANIZATION PROCEEDING UNDER SEC. 77 OF THE
BANKRUPTCY ACT, THE INTERSTATE COMMERCE COMMISSION FORMULATED A PLAN OF
REORGANIZATION WHICH PROVIDED FOR A FORCED MERGER OF THE DEBTOR
RAILROAD AND ANOTHER RAILROAD.  282 I.C.C. 81.  THE DISTRICT COURT SET
THE PLAN ASIDE.  103 F. SUPP. 825.  THE COURT OF APPEALS REVERSED.  201
F.2D 325.  THIS COURT GRANTED CERTIORARI.  345 U.S. 948.  REVERSED AND
REMANDED, P. 315. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION FOR DECISION IN THIS CASE IS WHETHER THE INTERSTATE
COMMERCE COMMISSION HAS THE POWER UNDER SEC. 77 OF THE BANKRUPTCY ACT
TO SUBMIT A PLAN OF REORGANIZATION TO A DISTRICT COURT WHEREBY A DEBTOR
RAILROAD WOULD BE COMPELLED TO MERGE WITH ANOTHER RAILROAD HAVING NO
PRIOR CONNECTION WITH THE DEBTOR.  ANSWER TO THIS PROBLEM DEPENDS ON
UNDERSTANDING OF A LONG LEGISLATIVE HISTORY.  FIRST, HOWEVER, IT IS
NECESSARY TO PUT THE PROBLEM INTO ITS RELEVANT CONTEXT. 

IN AUGUST OF 1931, THE FLORIDA EAST COAST RAILWAY WAS THROWN INTO
EQUITY RECEIVERSHIP.  IT OPERATED IN THIS MANNER UNTIL JANUARY OF 1941,
WHEN A COMMITTEE REPRESENTING THE OWNERS OF A SUBSTANTIAL PORTION OF
THE DEBTOR'S PRINCIPAL BOND ISSUE FILED A PETITION FOR REORGANIZATION
UNDER SEC. 77 OF THE BANKRUPTCY ACT IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA.  THE PETITION WAS APPROVED BY THE
COURT, AND, AS PROVIDED IN THE STATUTE, PROCEEDINGS WERE INITIATED
BEFORE THE INTERSTATE COMMERCE COMMISSION FOR HEARINGS ON A PLAN OF
REORGANIZATION FORMULATED BY THE BONDHOLDERS' COMMITTEE. 

IN THE COURSE OF THE NEXT TEN YEARS, MANY PROPOSALS HAVE BEEN
CONSIDERED BY THE COMMISSION.  MOST OF THEM WERE REJECTED FOR ONE
REASON OR ANOTHER, BUT THREE HAVE IN TURN BEEN CERTIFIED BY IT TO THE
DISTRICT COURT.  NONE HAS AS YET BEEN CONFIRMED BY THAT COURT.  THE
INITIAL PLAN PROVIDED FOR A SIMPLE INTERNAL REORGANIZATION.  IT WAS
REJECTED BY THE COURT, AND THE CASE WAS REMANDED TO THE COMMISSION WITH
DIRECTIONS TO TAKE ACCOUNT OF AN INTERVENING IMPROVEMENT IN THE
DEBTOR'S CASH POSITION.  52 F. SUPP. 420.  ATLANTIC COAST LINE
RAILROAD, THE PRESENT RESPONDENT, FIRST APPEARED ON THE SCENE IN
NOVEMBER 1944 WHEN, AFTER THE COMMISSIONS'S HEARINGS FOR THE PURPOSE OF
DEVISING A SECOND PLAN HAD BEEN CLOSED, ONE LYNCH, JOINED BY OTHER
BONDHOLDERS OF THE DEBTOR, SOUGHT TO REOPEN THE PROCEEDINGS FOR THE
PURPOSE OF PROPOSING A NEW PLAN WHEREBY EACH RECIPIENT OF STOCK IN THE
REORGANIZED DEBTOR WOULD BE REQUIRED TO SELL 60% OF HIS INTEREST AT PAR
TO ATLANTIC, A CONNECTING CARRIER, THEREBY GIVING THAT RAILROAD
OPERATING CONTROL OF THE DEBTOR.  ON NOVEMBER 30, 1944, ATLANTIC WAS
ALLOWED TO INTERVENE BEFORE THE COMMISSION IN SUPPORT OF THE LYNCH
PROPOSAL.  THE ST. JOE PAPER CO., ON THE OTHER HAND, WHICH HAD BY THAT
TIME ACQUIRED A MAJORITY INTEREST IN THE DEBTOR'S PRINCIPAL BOND ISSUE,
OPPOSED THE LYNCH PLAN.  THE COMMISSION REJECTED THE LYNCH PROPOSAL,
INDICATING THAT, IN VIEW OF ATLANTIC'S OPERATING DEFICITS OVER THE PAST
YEARS, COMBINING THE TWO RAILROADS WOULD NOT BE IN THE PUBLIC INTEREST
AT THAT TIME.  261 I.C.C. 151, 187. 

THE SUBSEQUENT STRUGGLE FOR CONTROL OF THE DEBTOR HAS BEEN LARGELY
BETWEEN THESE TWO INTERESTS - THE ST. JOE PAPER CO., OWNER OF THE MAJOR
INTEREST IN THE DEBTOR, AND ATLANTIC, A CONNECTING CARRIER ANXIOUS TO
ACQUIRE THE DEBTOR'S COVETED FLORIDA EAST COAST TRAFFIC FROM
JACKSONVILLE TO MIAMI.  SHORTLY AFTER THE COMMISSION'S REJECTION OF THE
LYNCH PLAN, ATLANTIC PROPOSED ITS OWN PLAN PROVIDING FOR THE MERGER OF
THE DEBTOR INTO ATLANTIC IN RETURN FOR THE DISTRIBUTION OF CASH AND
VARIOUS TYPES OF ATLANTIC'S SECURITIES TO THE DEBTOR'S BONDHOLDERS. 
ST. JOE AGAIN OPPOSED, AS DID VARIOUS OTHER BONDHOLDERS, TWO
COMPETITORS OF ATLANTIC, AN ASSOCIATION REPRESENTING THE DEBTOR'S
EMPLOYEES, AND OTHER INTERESTED PARTIES.  THE MATTER WAS REFERRED TO AN
EXAMINER WHO, AFTER A LENGTHY INVESTIGATION, FOUND THAT SUCH A MERGER
WOULD NOT BE IN THE PUBLIC INTEREST, AND THAT THE ATLANTIC PLAN WOULD
NOT CONSTITUTE "FAIR AND EQUITABLE" TREATMENT FOR ALL THE UNWILLING
BONDHOLDERS WHO WERE IN SUBSTANCE THE OWNERS OF THE DEBTOR RAILROAD. 
(FN1)  THE COMMISSION, HOWEVER, BY A SHARPLY DIVIDED DECISION OVERRULED
THE EXAMINER AND SANCTIONED A "FORCED MERGER."  (FN2) 267 I.C.C. 295. 
(FN3)  CIRCUIT JUDGE SIBLEY, SITTING IN THE DISTRICT COURT, SET THE
PLAN ASIDE ON THE GROUND THAT THE COMMISSION HAD NO POWER UNDER THE
STATUTE TO FORCE A MERGER; IN ADDITION, HE HELD THE PLAN NOT "FAIR AND
EQUITABLE."  81 F. SUPP. 926.  ON APPEAL TO THE COURT OF APPEALS FOR
THE FIFTH CIRCUIT, TWO JUDGES SUSTAINED THE COMMISSION'S AUTHORITY TO
PROPOSE SUCH A PLAN WHILE THE THIRD AGREED WITH JUDGE SIBLEY; BUT A
MAJORITY AGREED WITH THE DISTRICT COURT THAT THE PLAN WAS NOT "FAIR AND
EQUITABLE."  179 F.2D 538. 

THE COMMISSION THEN FORMULATED ANOTHER PLAN, WHICH LIKEWISE PROVIDED
FOR A FORCED MERGER OF THE DEBTOR AND ATLANTIC, 282 I.C.C. 81, AND
CIRCUIT JUDGE STRUM, SITTING IN THE DISTRICT COURT, WHILE BOUND ON THE
QUESTION OF THE COMMISSION'S POWER BY THE PRIOR COURT OF APPEALS
DECISION, AGAIN SET THE PLAN ASIDE AS UNFAIR AND INEQUITABLE.  103 F.
SUPP. 825.  THE COURT OF APPEALS WAS NOW CONVENED EN BANC.  THREE OF
ITS JUDGES, WITHOUT FURTHER CONSIDERATION OF THE COMMISSION'S POWER,
REVERSED THE DISTRICT COURT AND FOUND THE PLAN FAIR AND EQUITABLE.  THE
OTHER TWO JUDGES DISSENTED AND ADOPTED THE REASONING OF JUDGE SIBLEY IN
THE EARLIER CASE, I.E., THAT THE COMMISSION HAD NO POWER UNDER THE
STATUTE TO PROPOSE SUCH A COMPELLED MERGER PLAN.  (FN4)  201 F.2D 325. 
BECAUSE OF THE IMPORTANCE OF THIS QUESTION IN THE ADMINISTRATION OF
SEC. 77 OF THE BANKRUPTCY ACT, WE GRANTED CERTIORARI.  345 U.S. 948. 

THE PROCEDURE BY WHICH THE COMMISSION IS AUTHORIZED TO CONSIDER AND
APPROVE A PLAN OF REORGANIZATION AND THEN SUBMIT IT TO THE INTERESTED
PARTIES FOR ACCEPTANCE, AS WELL AS THE COURTS FOR JUDICIAL
CONFIRMATION, IS GOVERNED BY AN ELABORATE STATUTORY SCHEME.  SEE SEC.
77 OF THE BANKRUPTCY ACT, 47 STAT. 1474, AS AMENDED, 11 U.S.C. SEC.
205.  ANY QUESTION SUCH AS THE ONE NOW HERE MUST BE RESOLVED BY
REFERENCE TO THIS GOVERNING LAW AND ITS UNDERLYING PURPOSE, IMBEDDED AS
THAT IS NOT MERELY IN THE FORMAL WORDS OF THE STATUTE BUT IN THE
HISTORY WHICH GIVES THEM MEANING.  IF EVER A LONG COURSE OF LEGISLATION
IS TO BE TREATED AS AN ORGANIC WHOLE, WHOSE PARTS ARE NOT DISJECTA
MEMBRA, THIS IS TRUE OF SEC. 77. 

THE RESPONDENT RELIES ON SUBSECTION (B)(5) TO SUSTAIN THE
COMMISSION'S POWER TO SUBMIT A FORCED MERGER PLAN OF THE TYPE HERE
INVOLVED.  (FN5)  THIS WAS SUBSECTION (B)(3) OF THE ORIGINAL SEC. 77 OF
THE BANKRUPTCY ACT AS ENACTED IN 1933, 47 STAT. 1474, 1475.  IT THEN
READ, INSOFAR AS HERE MATERIAL:

"(B) A PLAN OF REORGANIZATION WITHIN THE MEANING OF THIS SECTION  ...
(3) SHALL PROVIDE ADEQUATE MEANS FOR THE EXECUTION OF THE PLAN, WHICH
MAY, SO FAR AS MAY BE CONSISTENT WITH THE PROVISIONS OF SECTIONS 1 AND
5 OF THE INTERSTATE COMMERCE ACT AS AMENDED, INCLUDE  ...  THE MERGER
OF THE DEBTOR WITH ANY OTHER RAILROAD CORPORATION  ...  ." 

THE PERMISSIVE MERGER PROVISION IN PLANS OF REORGANIZATION WAS THUS
MADE EXPRESSLY CONDITIONAL ON COMPLIANCE WITH THE REQUIREMENTS OF SECS.
1 AND 5 OF THE INTERSTATE COMMERCE ACT.  THE REASON FOR THIS PROVISO,
COMMONLY REFERRED TO AS THE "CONSISTENCY CLAUSE," WAS STATED AS FOLLOWS
BY COMMISSIONER JOSEPH EASTMAN, CHAIRMAN OF THE LEGISLATIVE COMMITTEE
OF THE INTERSTATE COMMERCE COMMISSION AND ONE OF THE WEIGHTIEST VOICES
BEFORE CONGRESS ON RAILROAD MATTERS:  (FN6) 

"EXPLANATION.  - THIS ACT OUGHT NOT TO AUTHORIZE RAILROAD MERGERS
...  WHICH ARE INCONSISTENT WITH THE APPLICABLE PROVISIONS OF THE
INTERSTATE COMMERCE ACT, PARTICULARLY THE CONSOLIDATION-PLAN
PROVISIONS.  THESE AMENDMENTS ARE INTENDED TO AVOID THAT POSSIBILITY." 

IN THE ENSUING FLOOR DEBATES IT WAS FURTHER MADE CLEAR THAT THE
PURPOSE OF THE CONSISTENCY CLAUSE WAS TO SUBJECT MERGERS UNDER SEC. 77
TO WHATEVER RESTRICTIONS OBTAINED FOR MERGERS UNDER THE INTERSTATE
COMMERCE ACT.  REPRESENTATIVE HATTON SUMNERS, CHAIRMAN OF THE JUDICIARY
COMMITTEE WHICH HAD REPORTED OUT THE BILL AND FLOOR MANAGER OF THE
BILL, GAVE THIS ASSURANCE: 

"MR. HORR.  MAY I INQUIRE WHETHER OR NOT, WHERE THE WORD
'REORGANIZATION' IS USED, THE GENTLEMAN IS OF THE OPINION THAT THIS
WOULD ENCOURAGE CONSOLIDATIONS OF RAILROADS? 

"MR. SUMNERS OF TEXAS.  THEY COULD NOT BE CONSOLIDATED IN VIOLATION
OF THE INTERSTATE COMMERCE ACT. 

"MR. HORR.  THEY WOULD FIRST HAVE TO GO THROUGH THAT? 

"MR. SUMNERS OF TEXAS.  THEY WOULD FIRST HAVE TO GO THROUGH THAT." 
76 CONG. REC. 2909. 

AND CONGRESSMAN RAYBURN, CHAIRMAN OF THE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, PUT IT THUS: 

"FEAR HAS BEEN EXPRESSED THAT WITH THE ENACTMENT OF THIS BILL THE
POWERS OF THE INTERSTATE COMMERCE COMMISSION AND THE COURTS OVER
CONSOLIDATIONS AND MERGERS WOULD BE EXPANDED.  IT IS MY FIRM CONVICTION
THAT THIS PROPOSAL IN SPECIFIC PROVISIONS SAFEGUARDS THE PRESENT
CONSOLIDATION AND MERGER PROVISIONS OF THE INTERSTATE COMMERCE ACT AND
GIVES NO ADDITIONAL AUTHORITY TO THE COMMISSION OR THE COURTS IN THESE
MATTERS."  76 CONG. REC. 2917-2918. 

IN VIEW OF THIS DELIBERATE AND EXPLICIT INCORPORATION OF THE
RESTRICTIONS ATTENDING MERGERS UNDER THE INTERSTATE COMMERCE ACT INTO
SEC. 77 OF THE BANKRUPTCY ACT, IT IS NECESSARY TO GIVE SOME
CONSIDERATION TO THE MERGER AND CONSOLIDATION PROVISIONS OF THE FORMER,
49 U.S.C. SEC. 5.  THE HISTORY OF THESE PROVISIONS IS LONG AND
TORTUOUS; ITS DETAILED SUMMARY IS RELEGATED TO AN APPENDIX, POST, P.
315.  SUFFICE IT TO SAY HERE THAT ONE CLEAR THREAD WHICH RUNS THROUGH A
COURSE OF LEGISLATION EXTENDING OVER A PERIOD OF TWENTY YEARS, AS WELL
AS THROUGH THE VARIOUS COMMENTARIES UPON IT, IS THAT ONLY MERGERS
VOLUNTARILY INITIATED BY THE PARTICIPATING CARRIERS ARE ENCOMPASSED BY
THAT STATUTE AND SANCTIONED BY IT.  FROM THE INITIAL ENACTMENT IN THE
TRANSPORTATION ACT OF 1920, 41 STAT. 456, 480, TO THE MOST RECENT
COMPREHENSIVE RE-EXAMINATION OF THESE PROVISIONS IN THE TRANSPORTATION
ACT OF 1940, 54 STAT. 898, 905, CONGRESS HAS CONSISTENTLY AND
INSISTENTLY DENIED THE INTERSTATE COMMERCE COMMISSION THE POWER TO TAKE
THE INITIATIVE IN GETTING ONE RAILROAD TO TURN OVER ITS PROPERTIES TO
ANOTHER RAILROAD IN RETURN FOR ASSORTED SECURITIES OF THE LATTER.  THE
ROLE OF THE COMMISSION IN THIS REGARD HAS TRADITIONALLY BEEN CONFINED
TO APPROVING OR DISAPPROVING MERGERS PROPOSED BY THE RAILROADS TO BE
MERGED.  AND THIS ADAMANT POSITION TAKEN BY CONGRESS HAS NOT BEEN FOR
WANT OF ATTEMPTS TO SECURE RELAXATION.  ADVOCACY OF GIVING THE
COMMISSION POWER TO PROPOSE AND ENFORCE MERGERS HAS BEEN STEADY AND, AT
TIMES, STRONG, BUT IT HAS CONSISTENTLY FAILED IN CONGRESS. 

THE REASONS FOR THIS HOSTILITY TO MERGERS IMPOSED BY THE COMMISSION
DERIVE LARGELY FROM THE DISADVANTAGES ATTRIBUTED BY CONGRESS TO SUCH
FAR-REACHING CORPORATE REVAMPINGS.  EMPLOYEES OF THE CONSTITUENT
RAILROADS WOULD, IT HAS BEEN FEARED, ALMOST CERTAINLY BE ADVERSELY
AFFECTED.  SHIPPERS AND COMMUNITIES ADEQUATELY SERVED BY RAILROAD A MAY
SUDDENLY FIND THEMSELVES UNFAVORABLY DEPENDENT UPON RAILROAD B.
INVESTORS IN ONE RAILROAD WOULD, CONTRARY TO THEIR EXPECTATIONS, FIND
THEIR HOLDINGS TRANSMUTED INTO SECURITIES OF A DIFFERENT RAILROAD.  AS
THE COMMISSION IN ITS 1938 ANNUAL REPORT SAID OF CONSOLIDATIONS: 

"PROJECTS OF THIS CHARACTER CANNOT BE CRAMMED DOWN THE THROATS OF
THOSE WHO MUST CARRY THEM OUT OR CONFORM TO THEM.  LEGAL COMPULSION CAN
BE USED WITH ADVANTAGE TO BRING RECALCITRANTS AND STRAGGLERS INTO LINE,
BUT NOT TO DRIVE HOSTILE MAJORITIES INTO ACTION."  (P. 23.)  (FN7) 

WE THEREFORE CONCLUDE THAT THE COMMISSION DOES NOT HAVE UNDER SEC. 77
OF THE BANKRUPTCY ACT A POWER WHICH CONGRESS HAS REPEATEDLY DENIED IT
UNDER THE INTERSTATE COMMERCE ACT, NAMELY TO INITIATE THE MERGER OR
CONSOLIDATION OF TWO RAILROADS.  IN LIGHT OF THE CONTINUOUSLY AND
VEHEMENTLY REITERATED POLICY AGAINST ENDOWING THE ICC WITH SUCH A POWER
UNDER SEC. 5 OF THE INTERSTATE COMMERCE ACT, IT IS INCONCEIVABLE,
WHOLLY APART FROM THE CONSISTENCY CLAUSE, THAT SUCH WAS THE SUB
SILENTIO EFFECT OF SEC. 77, AN EMERGENCY STATUTE HURRIEDLY ENACTED WITH
SCARCELY ANY DEBATE.  THE CONSISTENCY CLAUSE SERVES BUT TO STRENGTHEN
THIS NATURAL PRESUMPTION AGAINST SUCH A TACIT GRANT.  IT WOULD REQUIRE
UNAMBIGUOUS LANGUAGE INDEED TO ACCOMPLISH A CONTRARY RESULT; YET
NOWHERE IN THE COMMITTEE REPORTS AND THE DEBATES ON THE ORIGINAL SEC.
77, NOR IN ANY OF THE LEGISLATIVE MATERIALS RELATING TO THE THOROUGH RE
EXAMINATION OF THAT STATUTE IN 1935, (FN8) CAN WE FIND SO MUCH AS ONE
WORD WHICH CONVEYS THE IMPRESSION THAT AS TO MERGERS UNDER THE
BANKRUPTCY ACT, CONGRESS STEALTHILY DESIGNED TO JETTISON ITS LONG
STANDING AND OFT-REITERATED POLICY AGAINST COMPULSORY MERGERS.  ON THE
CONTRARY, AFTER THE ENACTMENT OF SEC. 77 IN 1933, THE COMMISSION IN ITS
ANNUAL REPORTS, AND THE FEDERAL COORDINATOR OF TRANSPORTATION IN HIS
SEVERAL REPORTS, HAD FREQUENT OCCASION TO DISCUSS SEC. 77 OF THE
BANKRUPTCY ACT AND SEC. 5 OF THE INTERSTATE COMMERCE ACT.  IT WOULD
INDEED BE STRANGE FOR THESE RAILROAD AUTHORITIES TO BEMOAN THE
COMMISSION'S INABILITY TO INITIATE MERGERS AND CONSOLIDATIONS (FN9) IF
IT HAD BEEN A FACT THAT AS TO THE SUBSTANTIAL PORTION OF THE NATION'S
RAILROAD MILEAGE THEN IN RECEIVERSHIP OR SEC. 77 PROCEEDINGS (FN10) THE
COMMISSION CLEARLY HAD THIS VERY POWER.  HAD IT BEEN THE DECLARED
INTENTION OF THE DRAFTERS OF SEC. 77 TO CONFER SUCH A POWER, IT IS FAIR
TO ASSUME THAT, IN VIEW OF THE PERSISTENT OPPOSITION OF ORGANIZED LABOR
AND OTHER GROUPS TO SUCH ATTEMPTS UNDER THE COMMERCE ACT, (FN11) THE
STATUTE WOULD NOT HAVE PASSED. 

ALL THIS OF COURSE IS NOT TO SAY THAT MERGERS CANNOT BE CARRIED OUT
IN THE COURSE OF A SEC. 77 REORGANIZATION.  IT MERELY MEANS THAT IF
THEY ARE, THEY MUST BE CONSUMMATED IN ACCORDANCE WITH ALL THE
REQUIREMENTS AND RESTRICTIONS APPLICABLE TO MERGERS UNDER THE ACT
PRIMARILY CONCERNED WITH RAILROAD AMALGAMATIONS, THE INTERSTATE
COMMERCE ACT.  SO FAR AS HERE RELEVANT, THAT MEANS THAT THE MERGER MUST
BE WORKED OUT AND PUT BEFORE THE COMMISSION BY THE MERGING CARRIERS. 
(FN12)  IT ALSO MEANS THAT ONE CARRIER CANNOT BE RAILROADED BY THE
COMMISSION INTO AN UNDESIRED MERGER WITH ANOTHER CARRIER. 

IN SHORT, THE CONSISTENCY CLAUSE OF SEC. 77 INCORPORATES BY REFERENCE
SEC. 5 OF THE INTERSTATE COMMERCE ACT, AS AMENDED.  AND THE VERY HEART
OF SEC. 5 IS THAT A MERGER OF TWO CARRIERS MAY BE APPROVED BY THE
INTERSTATE COMMERCE COMMISSION ONLY IF IT ORIGINATES AS A VOLUNTARY
PROPOSAL BY THE MERGING CARRIERS.  THIS ESSENTIAL PREREQUISITE FOR A
MERGER BETWEEN FLORIDA EAST COAST AND ATLANTIC COAST LINE - TWO
EXISTING CORPORATE ENTITIES - MUST BE COMPLIED WITH, FOR BY VIRTUE OF
THE CONSISTENCY CLAUSE THE COMMAND OF CONGRESS APPLIES EVEN IF ONE OF
THESE CARRIERS IS IN SEC. 77 PROCEEDINGS JUST AS MUCH AS IT WOULD IF
NEITHER OF THE CARRIERS WERE IN RECEIVERSHIP OR TRUSTEESHIP.   THE
LEGISLATIVE INCORPORATION OF SEC. 5 INTO SEC. 77 SHOULD NOT RESULT IN
ITS JUDICIAL MUTILATION. 

THE MOST RECENT OCCASION ON WHICH THE SENATE COMMITTEE ON INTERSTATE
COMMERCE COMPREHENSIVELY RE-EXAMINED THE SUBJECT OF RAILROAD
REORGANIZATION WAS THE REPORT SUBMITTED IN 1946 BY CHAIRMAN WHEELER,
THE GUIDING SPIRIT OF MOST OF THE LEGISLATION HERE UNDER
CONSIDERATION.  (FN13)  MUCH OF WHAT THE COMMITTEE SAYS THERE UNDER THE
HEADING OF "AVOIDANCE OF CONSOLIDATION STATUTE" IS HIGHLY RELEVANT
HERE: 

"IN VIEW OF THE MANY INTERESTS, IMMEDIATELY AND DIRECTLY AFFECTED BY
ANY PROPOSED CONSOLIDATION, CONGRESS HAS PROVIDED A SERIES OF
SAFEGUARDS AND PROCEDURAL STEPS, IN SECTION 5 OF THE INTERSTATE
COMMERCE ACT  ...  . 

     *         *        *         *         * 

"THIS STATUTE AND ITS STATUTORY PROCEDURE, STATUTORY SAFEGUARDS, AND
STATUTORY RIGHTS HAVE BEEN SET TO ONE SIDE IN THE PROCEEDINGS UNDER
AND THE COMMISSION, HAVE ASSUMED THAT THEY COULD EFFECT CONSOLIDATIONS,
NOT UNDER THE INTERSTATE COMMERCE ACT, BUT UNDER THE BANKRUPTCY ACT;
NOT UNDER A STATUTE DEALING WITH TRANSPORTATION, BUT UNDER A STATUTE
DEALING WITH FINANCIAL REORGANIZATION; NOT UNDER A SECTION WHICH
CONSIDERS AND SPECIFIES ONE SINGLE FINANCIAL QUESTION, THE EFFECT OF
CONSOLIDATION ON FIXED CHARGES, BUT UNDER A SECTION WHICH DEALS WITH
ALL SORTS OF FINANCIAL PROBLEMS, MOST OF THEM NOT RELATED TO
CONSOLIDATION.  THEY HAVE ASSUMED TO EFFECT CONSOLIDATIONS, NOT UNDER
LEGISLATION WHICH DEALS PRIMARILY WITH THE RIGHTS AND INTERESTS OF
STATES, LOCAL COMMUNITIES, AND EMPLOYEES, BUT UNDER A BANKRUPTCY LAW
WHICH DEALS PRIMARILY WITH THE INTERESTS OF SECURITYHOLDERS. 

     *         *      *         *         * 

"THOSE WHO ARE TRYING TO BYPASS THIS STATUTE AND TO CONSOLIDATE
RAILROADS AS PART OF A FINANCIAL REORGANIZATION PROCEEDING BRING
CONSOLIDATION INTO THE PROCEEDING AS SOMETHING SUBSIDIARY, A MERE TAIL
TO THE MAIN KITE.  WHEN GOVERNORS OF STATES AND REPRESENTATIVES OF
COMMUNITIES AND EMPLOYEES ORGANIZATIONS ARE INVITED TO THE PROCEEDINGS
BY THE COMMISSION, THEY FIND THE ISSUE WHICH PRIMARILY CONCERNS THEM
ENVELOPED IN ALL SORTS OF OTHER QUESTIONS OF A FINANCIAL AND TECHNICAL
NATURE.  IF THEY SHOULD WANT TO APPEAL TO A COURT FROM A CONSOLIDATION
DECISION IN THIS GRAB BAG OF PROCEEDINGS, THEIR TASK WOULD BE FAR MORE
COMPLICATED AND FAR MORE DIFFICULT THAN CONGRESS INTENDED WHEN IT
PASSED SECTION 5 OF THE INTERSTATE COMMERCE ACT.  THERE IS ALWAYS THE
AVAILABLE CRY - THE COURTS SHOULD NOT DISAPPROVE ANY PART OF THE
REORGANIZATION PLAN, EVEN THOUGH IT BE A CONSOLIDATION MATTER, LEST ALL
THE TIME AND LABOR AND EXPENSE WHICH HAS GONE INTO THE REORGANIZATION
PROCEEDING BE LOST. 

     *         *         *         *         * 

"THE COMMISSION JUSTIFIES ITS COURSE OF ACTION BY CITING TWO
SUBSECTIONS OF SECTION 77 OF THE BANKRUPTCY ACT.  SUBSECTION (B) LISTS
A NUMBER OF THE SUBSTANTIVE CHANGES WHICH CAN BE MADE THROUGH A PLAN OF
REORGANIZATION UNDER SECTION 77.  THEN IT LISTS A NUMBER OF 'MEANS FOR
THE EXECUTION OF THE PLAN,'  ...  .  AMONG THESE 'MEANS FOR THE
EXECUTION OF THE PLAN' IS INCLUDED 'THE MERGER OR CONSOLIDATION OF THE
DEBTOR WITH ANOTHER CORPORATION OR CORPORATIONS.'  SUBSECTION (F)
AUTHORIZES THE COMMISSION, AFTER THE COURT CONFIRMS THE PLAN, 'WITHOUT
FURTHER PROCEEDINGS' TO AUTHORIZE THE ISSUANCE OF SECURITIES, TRANSFER
OF PROPERTY, SALE, 'CONSOLIDATION OR MERGER OF THE DEBTOR'S PROPERTY,
OR POOLING OF TRAFFIC, TO THE EXTENT CONTEMPLATED BY THE PLAN AND NOT
INCONSISTENT WITH THE PROVISIONS AND PURPOSES OF THE INTERSTATE
COMMERCE ACT AS NOW OR HEREAFTER AMENDED.' 

"NOTE SHOULD BE TAKEN OF THE COMMISSION'S POSITION.  IT COULD, UNDER
ITS CONSTRUCTION OF THE STATUTE, AUTHORIZE NOT ONLY MERGERS, BUT ALSO
POOLING OF TRAFFIC, WITHOUT COMPLYING WITH THE REQUIREMENTS LAID DOWN
BY CONGRESS IN SECTION 5 OF THE INTERSTATE COMMERCE ACT. 
CONSOLIDATIONS, MERGERS, AND POOLING OF TRAFFIC HAVE LONG BEEN REGARDED
AS DANGEROUS, IF NOT CAREFULLY REGULATED AND SUPERVISED; CONGRESS HAS
LONG HAD THOSE EVILS IN MIND AND SOUGHT TO PREVENT EXCESSES, WHILE
SAVING WHAT IS GOOD IN SUCH TRANSACTIONS; TO THIS END CONGRESS
CAREFULLY ELABORATED A CONSIDERABLE NUMBER OF SAFEGUARDS IN SECTION 5
OF THAT ACT.  NONE OF THOSE SAFEGUARDS IS ELABORATED IN SECTION 77 OF
THE BANKRUPTCY ACT. 

"IT MAY NOT BE ASSUMED THAT CONGRESS INTENDED, IN SECTION 77, TO
PERMIT IT TO BYPASS THE SECTION 5 PROCEDURE AND PROCEEDINGS.  SECTION
77 WAS HURRIEDLY PASSED BY CONGRESS.  IT WAS NOT CONSIDERED BY EITHER A
SUBCOMMITTEE OR FULL COMMITTEE OF THE SENATE, BEFORE BEING TAKEN UP ON
THE FLOOR.  IT WAS PUSHED THROUGH IN THE FINAL DAYS OF THE SEVENTY
SECOND CONGRESS ON THE PLEA THAT IT WOULD PREVENT RECEIVERSHIPS. 
CONGRESS WOULD NOT, IN SUCH A MANNER, LEGISLATE OUT OF EXISTENCE, FOR
COMPANIES REQUIRING REORGANIZATIONS, ITS CAREFULLY ELABORATED
SAFEGUARDS WITH RESPECT TO CONSOLIDATIONS OR TRAFFIC POOLS.  IF THE
COMMISSION'S CONSTRUCTION OF SECTION 77 IS SOUND, THAT IT CAN AVOID THE
NECESSITY OF CONSIDERING CONSOLIDATIONS UNDER SECTION 5 OF THE
INTERSTATE COMMERCE ACT, IT IS OBVIOUS THAT THE LEGISLATION ENACTED AS
DANGEROUS PROPORTIONS. 

     *         *         *  *         * 

"THE MOST THAT THE COMMISSION MAY CLAIM UNDER SECTION 77 IS THAT, IF
IT HAS APPROVED A CONSOLIDATION BY AN ORDER UNDER SECTION 5 OF THE
TRANSPORTATION ACT, IT MAY PERHAPS BE ABLE TO GIVE EFFECT TO THAT
ACTION IN THE COURSE OF REORGANIZATION PROCEEDINGS. 

"THIS IS OF IMPORTANCE IN ADMINISTERING BOTH STATUTES.  THE PROCEDURE
AND SAFEGUARDS OF THE TRANSPORTATION ACT MUST BE PRESERVED AS A MATTER
OF LAW AND OF RIGHT; ...  ." 

THE CRUCIAL QUESTION, THEREFORE, IS WHETHER THIS MERGER PLAN MEETS
THE STATUTORY REQUIREMENTS.  SINCE IT DOES NOT, AS WE HAVE FOUND,
BECAUSE IT IS SOUGHT TO BE IMPOSED BY COMMISSION FIAT RATHER THAN
PROPOSED BY THE MERGING CARRIERS, IT MATTERS NOT THAT THE SECURITY
HOLDERS MIGHT ULTIMATELY ACCEPT IT IF IT WERE PUT TO THEM FOR A FORMAL
VOTE.  THE KIND OF HOBSON'S CHOICE, MORE OR LESS, TO WHICH SECURITY
HOLDERS ARE PUT WHEN VOTING ON A MERGER PLAN IS NOT TO BE PUT TO THEM
ON A PLAN INITIATED BY THE COMMISSION RATHER THAN BY THEIR OWN
CORPORATION.  AND SO, IF A PLAN DOES NOT SATISFY THE BASIC CONDITIONS
WHICH CIRCUMSCRIBE THE COMMISSION'S POWER, IT HAS A CONGENITAL DEFECT,
AND ANY INTERESTED PARTY CAN OBJECT TO ITS ATTEMPTED EFFECTUATION. 

LIKEWISE, THE SO-CALLED "CRAMDOWN" CLAUSE, MUCH RELIED ON BY
RESPONDENT, HAS NO BEARING ON THIS CASE.  THAT PROVISION WAS ADDED TO
SEC. 77 OF THE BANKRUPTCY ACT IN 1935, 49 STAT. 911, 919, 11 U.S.C.
SEC. 205(E), BECAUSE UNDER THE PRIOR LAW A PLAN HAD TO BE ACCEPTED BY
AT LEAST TWO-THIRDS (IN AMOUNT) OF EACH CLASS OF CREDITORS AND
STOCKHOLDERS AFFECTED BY THE PLAN.  THIS ENABLED A SMALL DISSENTIENT
MINORITY TO BLOCK ANY PLAN OF REORGANIZATION, NO MATTER HOW "FAIR AND
EQUITABLE," IN ORDER TO EXACT INEQUITABLE ADJUSTMENTS AS THE PRICE OF
ITS ACQUIESCENCE.  UNDER THE "CRAMDOWN" PROVISION THE DISTRICT COURT
MAY, UNDER THE APPROPRIATE CIRCUMSTANCES AND AFTER MAKING CERTAIN
REQUIRED FINDINGS, CONFIRM A PLAN DESPITE THE DISAPPROVAL OF MORE THAN
ONE-THIRD OF EACH CLASS AFFECTED.  FROM THE EXISTENCE OF THIS GENERAL
POWER IN THE DISTRICT COURT TO CONFIRM A PLAN DESPITE THE OPPOSITION OF
DISSENTIENT ELEMENTS, THE CONCLUSION IS SOUGHT TO BE DRAWN THAT THE
COMMISSION MUST THEREFORE HAVE INITIAL POWER TO SUBMIT A COMPULSORY
MERGER PLAN TO THE COURT.  OBVIOUSLY THIS DOES NOT FOLLOW.  SINCE THE
VAST MAJORITY OF SEC. 77 PROCEEDINGS INVOLVE INTERNAL REORGANIZATIONS,
THE "CRAMDOWN" PROVISION HAS A PURPOSE AND SCOPE OF APPLICATION WHOLLY
INDEPENDENT OF MERGERS, AND IT THEREFORE HAS NO BEARING ONE WAY OR THE
OTHER ON THE QUESTION AT ISSUE IN THIS CASE.  (FN14)  IT IS TRUE THAT
IN VIEW OF OUR HOLDING HERE THAT MERGER PLANS CANNOT BE PROPOSED BY THE
COMMISSION UNDER THE BANKRUPTCY ACT, THE "CRAMDOWN" PROVISION CAN NEVER
BE APPLIED TO SUCH INVOLUNTARY PLANS.  BUT THERE IS NOTHING
PARTICULARLY STARTLING ABOUT THIS.  ONCE ITS TERMS ARE FOUND TO BE
VALID, A PLAN MAY BE IMPOSED ON RECALCITRANT DISSENTERS.  BUT THE
VALIDITY OF A PLAN CANNOT BE DERIVED FROM THE EXISTENCE OF SUCH
"CRAMDOWN" POWER.  IT IS STILL TRUE THAT A HORSE-CHESTNUT IS NOT A
CHESTNUT HORSE. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  EXAMINER JEWELL STATED THAT UNDER THE PLAN PREVIOUSLY APPROVED
BY THE COMMISSION "CONTROL WOULD VEST IN THE ST. JOE COMPANY BY REASON
OF ITS OWNERSHIP OF A MAJORITY IN AMOUNT OF THE DEBTOR'S OUTSTANDING
FIRST AND REFUNDING MORTGAGE BONDS, THESE BONDS BEING THE ONLY
SECURITIES OF THE DEBTOR EXCHANGEABLE UNDER THE PLAN FOR THE NEW
SECURITIES OF THE REORGANIZED DEBTOR."  R., VI, P. 736.  THE ONLY OTHER
OUTSTANDING BOND ISSUE OF THE DEBTOR WAS, UNDER THAT PLAN, TO BE PAID
OFF OUT OF AVAILABLE CASH.  PREVIOUSLY THE COMMISSION HAD DECIDED THAT
THE CLAIMS OF UNSECURED CREDITORS AND THE EQUITY OF THE STOCKHOLDERS
COULD NOT BE RECOGNIZED, AND THAT THESE PARTIES WOULD THEREFORE BE
DENIED PARTICIPATION IN THE REORGANIZATION.  252 I.C.C. 423, 465. 

FN2  BY "FORCED MERGER" PLAN, OR "COMPULSORY MERGER" PLAN, IS MEANT A
MERGER PLAN FOISTED UPON ONE OF THE PARTIES BY THE COMMISSION, AS
DISTINGUISHED FROM A MERGER VOLUNTARILY INITIATED BY THE PARTICIPATING
CARRIERS. 

FN3  UNDER THE COMMISSION'S STATUTORY POWER TO REVISE AN APPROVED
PLAN UPON OBJECTIONS RECEIVED WITHIN SIXTY DAYS OF ITS PROMULGATION, 11
U.S.C. SEC. 205(D), THIS SECTION WAS SHORTLY THEREAFTER REAFFIRMED BY
ANOTHER CLOSE VOTE OF THE FULL COMMISSION MEMBERSHIP.  267 I.C.C. 729. 

FN4  THE CIRCUIT JUDGES OF THE FIFTH CIRCUIT WHO HAVE AT SOME STAGE
IN THESE PROCEEDINGS PASSED ON THIS QUESTION OF THE COMMISSION'S POWER
HAVE THUS DIVIDED EVENLY ON THE ISSUE.  JUDGES HUTCHESON, HOLMES AND
RIVES CONCLUDED THAT THE COMMISSION HAD SUCH POWER; JUDGES SIBLEY,
BORAH, AND RUSSELL CONCLUDED THAT IT DID NOT. 

FN5  "A PLAN OF REORGANIZATION  ...  (5) SHALL PROVIDE ADEQUATE MEANS
FOR THE EXECUTION OF THE PLAN, WHICH MAY INCLUDE  ...  THE MERGER OR
CONSOLIDATION OF THE DEBTOR WITH ANOTHER CORPORATION OR CORPORATIONS
...  ." 

FN6  LETTER FROM CHAIRMAN EASTMAN TO SENATOR HASTINGS, THE SPONSOR OF
SEC. 77, DATED JAN. 31, 1933, REPRODUCED IN HEARINGS BEFORE THE SENATE
COMMITTEE ON INTERSTATE COMMERCE ON S. 1869, 76TH CONG., 1ST SESS. 288,
300.  AS TO EASTMAN'S AUTHORITY IN THE FIELD OF RAILROAD REGULATION,
SEE FUESS, JOSEPH B. EASTMAN - SERVANT OF THE PEOPLE. 

FN7  SEE ALSO THE REMARKS OF SENATOR COUZENS, CHAIRMAN OF THE
COMMITTEE ON INTERSTATE COMMERCE, AT 74 CONG. REC. 6041 ET SEQ. 

FN8  IN THE COURSE OF THE 1935 REVISION OF SEC. 77, THE CONSISTENCY
CLAUSE WAS TAKEN OUT OF SUBSECTION (B)(3), COMBINED WITH A SIMILAR
CLAUSE IN SUBSECTION (E), AND, AS THUS COMBINED, PLACED IN SUBSECTION
(F) OF THE STATUTE, 49 STAT. 911, 920.  JUDGE SIBLEY INDICATED THAT HE
THOUGHT THE CONSISTENCY CLAUSE "BECAME ACCIDENTALLY MISPLACED IN
REDRAFTING THE ACT."  81 F. SUPP., AT 932.  HOWEVER THAT MAY BE, IT
SEEMS QUITE CLEAR THAT CONGRESS DID NOT INTEND TO ALTER THE
DELIBERATELY ESTABLISHED RELATIONSHIP BETWEEN SEC. 5 OF THE COMMERCE
ACT AND SEC. 77(B)(3) OF THE BANKRUPTCY ACT MERELY BY A CHANGE IN THE
POSITION OF THE CONSISTENCY CLAUSE, UNACCOMPANIED BY ANY EXPLANATORY
COMMENT.  IT WOULD BE A GROSS DISREGARD OF THE MEANING OF LEGISLATION
TO BE CONTROLLED BY THE BARE WORDS OF THE PRESENT MERGER PROVISION
DETACHED FROM, AND IN DEFIANCE OF, THE WHOLE HISTORY OF THE SECTION. 
IN THIS CONNECTION IT IS INTERESTING TO NOTE THAT IN THE COURSE OF A
PROPOSED COMPREHENSIVE REVISION OF SEC. 77 IN 1939, THE QUESTION HERE
IN ISSUE WOULD HAVE BEEN MADE ABSOLUTELY CLEAR BY THE ADDITION OF THE
FOLLOWING PROVISO TO THE MERGER SUBSECTION: 

"PROVIDED, THAT NOTHING IN THIS SECTION SHALL AUTHORIZE COMPULSORY
MERGER OR CONSOLIDATION  ... ."  S. 1869, 76TH CONG., 1ST SESS., MARCH
20, 1939, P. 19. 

AFTER EXTENSIVE HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE
COMMERCE, THE BILL WAS REPORTED OUT AND SUBSEQUENTLY PASSED BY THE
SENATE, 84 CONG. REC. 6257.  EVEN MORE EXTENSIVE HEARINGS WERE THEN
HELD BY THE HOUSE COMMITTEE, BUT THE BILL WAS NEVER REPORTED OUT,
PROBABLY BECAUSE OF THE CONTROVERSIAL PROVISION IN THE BILL
ESTABLISHING A SPECIAL REORGANIZATION COURT FOR SEC. 77 CASES. 

IN THE COURSE OF THE HOUSE HEARINGS, THE COMMISSION WAS REQUESTED TO
SUBMIT ITS VIEWS ON THE BILL.  AFTER COMMENTING IN DETAIL ON VARIOUS
COMMISSION SIMPLY ADDED THAT IT DEEMED IT "UNNECESSARY" TO COMMENT ON
THE OTHER "MINOR AMENDMENTS" INCLUDED IN THE BILL.  HEARINGS BEFORE
SPECIAL SUBCOMMITTEE ON BANKRUPTCY AND REORGANIZATION OF THE HOUSE
COMMITTEE ON THE JUDICIARY ON S. 1869, 76TH CONG., 1ST SESS., SERIAL
NO. 11, PT. 1, P. 571. 

CASSIUS M. CLAY, ASSISTANT GENERAL COUNSEL OF THE RFC AND INTIMATELY
ACQUAINTED WITH PROBLEMS OF RAILROAD REORGANIZATION, QUESTIONED THE
NEED FOR THE PROVISO ON THE GROUND THAT THE CONSISTENCY CLAUSE IN
SUBSECTION (F) ALREADY COVERED THE MATTER AND THAT THE PROVISO MIGHT BE
CONSTRUED TO PREVENT THE MERGER OF A PARENT AND ITS SUBSIDIARIES. 
HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 1869,
76TH CONG., 1ST SESS.  329. 

FN9  SEE, E.G., REPORT OF THE FEDERAL COORDINATOR OF TRANSPORTATION,
H.R. DOC. NO. 89, 74TH CONG., 1ST SESS. 41 (1935); 52 I.C.C. ANN. REP.
22 (1938). 

FN10  DURING THE YEARS 1933-1940 THE PERCENTAGE OF RAILROAD MILEAGE
REPRESENTING ROADS IN SEC. 77 PROCEEDINGS OR RECEIVERSHIP WAS AS
FOLLOWS: 

YEAR        PERCENT 

1933                  16 

1934        16 

1935                  27 

1936   28 

1937                  28 

1938                  31 

1939                  31 

1940                  31 

(FIGURES COMPUTED FROM TABLE 1 OF THE ICC'S ANNUAL REPORTS ON THE
STATISTICS OF RAILWAYS IN THE UNITED STATES FOR 1933-1940, AND THE
CUMULATIVE TABLE 151 IN THE 1940 VOLUME.) 

FN11  SEE APPENDIX, POST, P. 315. 

FN12  WE ARE NOT AWARE OF ANY CASE OTHER THAN THE PRESENT WHERE THIS
REQUIREMENT WAS NOT OBSERVED.  IN ALL THE REPORTED CASES OF
REORGANIZATIONS INVOLVING MERGERS, THE MERGER WAS EITHER PROPOSED BY
THE DEBTOR IN CONJUNCTION WITH THE OTHER PARTY, OR THE MERGER INVOLVED
A PARENT AND ITS SUBSIDIARIES, AND WAS TREATED ESSENTIALLY AS AN
INTERNAL REORGANIZATION.  IN ANY EVENT, WE ARE NOT NOW CALLED UPON TO
PASS ON THE VALIDITY OF THE LATTER TYPE OF MERGER. 

IN THIS CONNECTION IT IS IMPORTANT TO REMEMBER THAT A RAILROAD IN
SEC. 77 PROCEEDINGS IS NOT A DEFUNCT ORGANISM BUT REMAINS A LIVE AND
GOING CONCERN.  SEE THE REFERENCES THROUGHOUT SEC. 77 TO "THE DEBTOR"
AS AN ACTIVE ENTITY; ALSO VAN SCHAICK V. MCCARTHY, 116 F.2D 987, 992
993.  DURING THE ENTIRE PERIOD THAT THE FLORIDA EAST COAST HAS BEEN IN
RECEIVERSHIP OR TRUSTEESHIP THERE HAVE BEEN ANNUAL STOCKHOLDERS'
MEETINGS AT WHICH A BOARD OF DIRECTORS WAS ELECTED.  SEE THE FLORIDA
EAST COAST'S ANNUAL REPORTS ON FILE WITH THE INTERSTATE COMMERCE
COMMISSION.  INDEED THE DESIRE TO PROVIDE A READY REMEDY FOR THE
OVERHAULING OF A RAILROAD'S FINANCIAL STRUCTURE WITHOUT IMPAIRING ITS
PRIMARY RESPONSIBILITIES AS A REGULARLY FUNCTIONING CARRIER WAS ONE OF
THE PRINCIPAL REASONS FOR THE ENACTMENT OF SEC. 77.  SEE 5 COLLIER,
BANKRUPTCY, SEC. 77.02.  THUS IT FOLLOWS FROM THE CONSISTENCY CLAUSE,
WHEN VIEWED IN THE LIGHT OF THIS CORPORATE CONTINUITY OF A RAILROAD IN
REORGANIZATION, THAT THOSE WHO IN THE ABSENCE OF SEC. 77 WOULD WIELD
THE CORPORATE MERGER POWERS MUST INITIATE AND WORK OUT THE MERGER NOW. 
CF. SEC. 77(D), WHICH NOT ONLY PERMITS BUT REQUIRES THE DEBTOR RAILROAD
ITSELF TO FILE A PLAN OF REORGANIZATION ("THE DEBTOR  ...  SHALL FILE A
PLAN"; CERTAIN OTHER INTERESTED PARTIES "MAY" ALSO FILE A PLAN). 

FN13  S. REP. NO. 1170, 79TH CONG., 2D SESS. 80-85. 

FN14  THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THIS PROVISION
TO INDICATE THAT IT WAS INTENDED TO HAVE ANY EFFECT ON THE LAW
GOVERNING MERGERS IN REORGANIZATION PLANS. 

MR. JUSTICE BLACK AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

(FOR DISSENTING OPINION, SEE POST, P. 321.) 

  APPENDIX TO OPINION OF THE COURT. 

A BRIEF OUTLINE OF THE HISTORY OF THE CONSOLIDATION PROVISIONS OF THE
INTERSTATE COMMERCE ACT. 

PRIOR TO 1920, COMPETITION WAS THE DESIDERATUM OF OUR RAILROAD
ECONOMY.  SECTION 5 OF THE ORIGINAL INTERSTATE COMMERCE ACT OF 1887
FORBADE ANY AGREEMENTS FOR THE POOLING OF FREIGHTS OR REVENUES, (FN1)
AND THE POLICY OF THE ANTITRUST LEGISLATION WAS ALSO APPLIED TO THE
RAILROADS.  (FN2) 

IN 1919, WHEN THE GOVERNMENT WAS PLANNING TO RETURN THE RAILROADS TO
PRIVATE OWNERSHIP, MANY OF THE SMALLER RAILROADS WERE IN VERY WEAK
CONDITION AND THEIR CONTINUED SURVIVAL WAS IN JEOPARDY.  (FN3)  HENCE,
FOR THE FIRST TIME, GOVERNMENTAL ENCOURAGEMENT OF RAILROAD
CONSOLIDATION WAS DISCUSSED.  IT WAS AGREED THAT THE INTERSTATE
COMMERCE COMMISSION SHOULD BE DIRECTED TO PREPARE A PLAN FOR THE
CONSOLIDATION OF THE RAILROADS OF THE COUNTRY INTO A LIMITED NUMBER OF
SYSTEMS.  BUT THERE WAS SHARP DISAGREEMENT OVER WAYS AND MEANS FOR
CARRYING OUT THIS PROGRAM.  THE HOUSE COMMITTEE OPPOSED GRANT OF POWER
TO THE COMMISSION TO COMPEL CONSOLIDATIONS.  (FN4)  THE SENATE
COMMITTEE, HOWEVER, UNDER THE LEADERSHIP OF SENATOR CUMMINS, AN ARDENT
ADVOCATE OF COMPULSORY CONSOLIDATION, RECOMMENDED A BILL PROVIDING FOR
VOLUNTARY CONSOLIDATION IN ACCORDANCE WITH A MASTER PLAN FOR A PERIOD
OF SEVEN YEARS, BUT AUTHORIZING COMPULSORY CONSOLIDATIONS THEREAFTER. 
(FN5)  ALTHOUGH MANY GROUPS, INCLUDING VIRTUALLY ALL THE RAILROADS,
OPPOSED THE COMPULSORY PROVISIONS, (FN6) THE SENATE PASSED THE BILL, 59
CONG. REC. 952.  BUT IN CONFERENCE, "THE SENATE RECEDED FROM THE
PROVISIONS FOR COMPULSORY CONSOLIDATION" AND THE HOUSE VERSION WAS
ADOPTED.  (FN7) 

IN 1921, THE COMMISSION PROMULGATED A TENTATIVE CONSOLIDATION PLAN. 
(FN8)  STRONG OPPOSITION IMMEDIATELY DEVELOPED AND LONG HEARINGS BEFORE
THE COMMISSION ENSUED.  THE UPSHOT WAS THAT IN 1925, THE COMMISSION,
RECOGNIZING THE UNFEASIBILITY OF WORKING OUT A NATIONAL PLAN OF
CONSOLIDATION, ASKED CONGRESS TO BE RELIEVED OF THIS BURDEN.  (FN9)
THIS REQUEST WAS LEFT UNHEEDED UNTIL 1940, AND IN 1929 THE COMMISSION
ADOPTED ITS FINAL PLAN OF CONSOLIDATION.  (FN10) 

MEANWHILE SENATOR CUMMINS RENEWED HIS EFFORTS TO GIVE THE INTERSTATE
COMMERCE COMMISSION POWER TO COMPEL CONSOLIDATIONS IF AFTER A CERTAIN
NUMBER OF YEARS THE VOLUNTARY PROGRAM HAD MADE NO PROGRESS.   (FN11)
THIS BILL AGAIN MET WITH STRONG OPPOSITION, (FN12) BUT PRIOR TO HIS
DEFEAT IN 1926, SENATOR CUMMINS MADE TWO FURTHER ATTEMPTS TO ENDOW THE
COMMISSION WITH POWER TO FORCE CONSOLIDATIONS.  (FN13)  ALL THESE
LEGISLATIVE EFFORTS FAILED. 

IN FEBRUARY OF 1933, THE DRIVE FOR COMPULSORY CONSOLIDATION GAINED
NEW IMPETUS WHEN THE NATIONAL TRANSPORTATION COMMITTEE, HEADED BY EX
PRESIDENT COOLIDGE, ISSUED A REPORT RECOMMENDING LEGISLATION ALONG
THESE LINES.  (FN14)  AGAIN THE OPPOSITION WAS SO VIGOROUS (FN15) THAT
THE EMERGENCY RAILROAD TRANSPORTATION ACT OF 1933, PASSED SOME MONTHS
LATER, CONTAINED NO SUCH PROVISION; ON THE CONTRARY IT HAD A SPECIAL
EMPLOYMENT.  (FN16) 

THE 1933 ACT ALSO ESTABLISHED THE OFFICE OF A FEDERAL COORDINATOR OF
TRANSPORTATION TO INVESTIGATE THE ENTIRE TRANSPORTATION PROBLEM AND
MAKE APPROPRIATE RECOMMENDATIONS.  IN HIS FIRST REPORT, THE
COORDINATOR, COMMISSIONER JOSEPH EASTMAN, REVIEWED THE SUBJECT OF
RAILROAD CONSOLIDATIONS AND CONCLUDED THAT THE SWEEPING PROPOSAL OF HIS
LEGAL ADVISER, MR. LESLIE CRAVEN, FOR COMPULSORY CONSOLIDATION SHOULD
NOT BE FOLLOWED, BUT THAT THE REMEDY LAY ALONG LINES OF GREATER
COORDINATION AND POOLING, WITH SOME FORCED MERGERS ON A "TRIAL" BASIS. 
(FN17)  THE THIRD AND FOURTH REPORTS REITERATED THE COMMISSION'S
INABILITY TO COMPEL MERGERS.  (FN18)  AGAIN NO LEGISLATIVE ACTION
RESULTED.  (FN19) 

IN 1938, PRESIDENT ROOSEVELT APPOINTED COMMISSIONERS EASTMAN, SPLAWN,
AND MAHAFFIE OF THE INTERSTATE COMMERCE COMMISSION TO MAKE ANOTHER
COMPREHENSIVE STUDY OF THE RAILROAD PROBLEM.  THIS "COMMITTEE OF
THREE," AFTER POINTING OUT THAT "VOLUNTARY CONSOLIDATION OF RAILROAD
COMPANIES MAY NOW BE ACCOMPLISHED, SUBJECT TO CERTAIN LIMITATIONS, WITH
THE APPROVAL OF THE COMMISSION," RECOMMENDED NEW LEGISLATION, GIVING
THE COMMISSION "AUTHORITY  ...  TO REQUIRE A UNIFICATION, WHERE IT IS
SOUGHT BY AT LEAST ONE CARRIER."  (FN20)  SUBSEQUENTLY THE PRESIDENT
ALSO APPOINTED ANOTHER COMMITTEE CONSISTING OF THREE RAILROAD
EXECUTIVES AND THREE REPRESENTATIVES OF RAILWAY LABOR, KNOWN AS THE
"COMMITTEE OF SIX."  THIS COMMITTEE'S RECOMMENDATIONS WERE VASTLY
DIFFERENT:  (FN21) 

"WE DO NOT THINK THE COUNTRY IS READY FOR ANY COMPULSORY SYSTEM OF
CONSOLIDATIONS.  WHETHER ULTIMATE RESORT MUST BE HAD TO THE PRINCIPLE
OF COMPULSION IS A QUESTION WHICH WE THINK IT BETTER TO DEFER UNTIL
AFTER THERE HAS BEEN AN OPPORTUNITY TO SEE WHAT CAN BE ACCOMPLISHED IF
THE RAILROADS ARE RELIEVED FROM THESE LIMITATIONS AND RESTRICTIONS OF
THE CONSOLIDATION PLAN.  IN OUR OPINION THE BEST RESULTS WILL BE
ACHIEVED BY LEAVING ALL INITIATIVE IN THE MATTER TO THE RAILROADS
THEMSELVES, ... ." 

THE TRANSPORTATION ACT OF 1940 - CONGRESS' LAST WORD ON THE SUBJECT
OF CONSOLIDATION - ESSENTIALLY REJECTED THE RECOMMENDATIONS OF THE
COMMITTEE OF THREE AND ADOPTED THOSE OF THE COMMITTEE OF SIX.  THE
COMMISSION WAS FINALLY RELIEVED OF ITS DUTY TO PROMULGATE A NATIONAL
CONSOLIDATION PLAN, AND THE POWER TO INITIATE MERGERS AND
CONSOLIDATIONS WAS LEFT COMPLETELY IN THE HANDS OF THE CARRIERS. 
(FN22) 

PERHAPS THE BEST INSIGHT INTO THE PREVAILING ATTITUDE TOWARDS
COMPULSORY MERGERS CAN BE OBTAINED FROM THE FOLLOWING STATEMENTS OF
CHAIRMAN WHEELER OF THE SENATE COMMITTEE ON INTERSTATE COMMERCE DURING
THE HEARINGS ON S. 2009, WHICH ULTIMATELY BECAME THE TRANSPORTATION ACT
OF 1940.  IN RESPONSE TO SOME FEAR EXPRESSED BY THE GENERAL COUNSEL OF
THE BROTHERHOOD OF RAILROAD TRAINMEN THAT THE PENDING BILL WOULD
ENCOURAGE CONSOLIDATIONS, SENATOR WHEELER SAID:  (FN23) 

"OF COURSE, AS YOU WELL KNOW, SOME PEOPLE MAINTAIN THAT WE OUGHT TO
GIVE THE INTERSTATE COMMERCE COMMISSION THE POWER TO FORCE
CONSOLIDATIONS. 

"THERE IS A VERY STRONG SENTIMENT ON THE PART OF A GREAT MANY PEOPLE
THAT CONSOLIDATION SHOULD BE COMPELLED.  THEY SAY THAT NOTHING WILL BE
DONE UNTIL SUCH TIME AS THAT HAPPENS. 

"THE RAILROAD EXECUTIVES DO NOT WANT FORCED CONSOLIDATION; THEY ARE
OPPOSED TO IT.  THE RAILROAD MEN ARE OPPOSED TO IT, GENERALLY
SPEAKING. 

     *         * *         *         * 

"AFTER ALL, WHEN YOU SPEAK OF THAT (ENCOURAGING CONSOLIDATIONS), THE
INTERSTATE COMMERCE COMMISSION HAS STUDIED IT FOR YEARS, AND NO
CONSOLIDATION CAN TAKE PLACE UNDER THIS BILL UNTIL SUCH TIME AS IT IS A
VOLUNTARY CONSOLIDATION  ...  . 

     *         *         *         *         * 

"I CANNOT UNDERSTAND WHY YOU ARE TALKING ABOUT CONSOLIDATIONS BEFORE
THIS COMMITTEE, BECAUSE THERE IS NOTHING IN THIS BILL TO INDICATE THAT
WE HAVE TAKEN THE POSITION THAT WE ARE IN FAVOR OF FORCED
CONSOLIDATIONS.  THERE IS NOTHING IN THE BILL THAT WILL CHANGE THE
SITUATION AT ALL. 

     *         *     *         *         * 

"AS A MATTER OF FACT, MUCH OF THE OBJECTION TO THIS BILL ON THE PART
OF A NUMBER OF PEOPLE HAS BEEN THAT IT HAS NOT GOT SOME PROVISION IN IT
MAKING IT EASIER FOR CONSOLIDATIONS; AS A MATTER OF FACT, FORCING
CONSOLIDATIONS AND COORDINATIONS, OR AT LEAST SETTING UP IN THE
INTERSTATE COMMERCE COMMISSION A COMMITTEE THAT WILL GO AHEAD AND
SUGGEST HOW CONSOLIDATIONS OUGHT TO BE MADE. 

"WE HAVE TAKEN THAT OUT, AND I HAVE REFUSED TO ADHERE TO THAT OR TO
LISTEN TO ARGUMENTS ABOUT IT, BUT YOU ARE COMING IN HERE AND TELLING US
THAT THERE IS SOMETHING IN HERE ABOUT CONSOLIDATIONS THAT YOU DO NOT
WANT. 

     *         *         *         *         * 

"I HAVE REPEATEDLY SAID THAT YOU COULD NOT GET A BILL TO FORCE
CONSOLIDATIONS, OR TO HAVE IN HERE A PROVISION THAT THE COMMISSION
SHOULD HAVE AN OPPORTUNITY OF CARRYING ON INVESTIGATIONS OF THE SUBJECT
TO TRY TO FORCE CONSOLIDATIONS, AND SO FORTH.  SO, AS FAR AS THIS
COMMITTEE IS CONCERNED, WITH REFERENCE TO THIS BILL, YOU ARE JUST
WASTING OUR TIME IN TALKING ABOUT CONSOLIDATIONS, BECAUSE THAT SUBJECT
IS OUT THE WINDOW." 

THUS, HOSTILITY TO THE CONSOLIDATION OF RAILROADS EXCEPT BY THE
VOLUNTARY ACTION OF THE MERGING ROADS HAS BEEN THE UNDEVIATING POLICY
OF CONGRESS SINCE 1920.  IN ASSESSING THE FAILURE OF THE CONSOLIDATION
PROGRAM INITIATED BY THE TRANSPORTATION ACT OF 1920, MOST STUDENTS OF
TRANSPORTATION PROBLEMS AGREE THAT ONE DIFFICULTY WAS THIS PERSISTENT
REFUSAL ON THE PART OF CONGRESS TO GIVE THE COMMISSION POWER TO TAKE
THE INITIATIVE IN PROPOSING AND ENFORCING PARTICULAR MERGERS.  (FN24)
YET THAT IS THE POLICY DELIBERATELY AND EXPLICITLY FOLLOWED BY CONGRESS
EACH TIME IT CONSIDERED THIS PROBLEM. 

FN1  24 STAT. 379, 380. 

FN2  26 STAT. 209, UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166
U.S. 290; UNITED STATES V. JOINT TRAFFIC ASSN., 171 U.S. 505; 38 STAT.
730. 

FN3  SEE S. REP. NO. 1182, PT. 2, 76TH CONG., 3D SESS. 518-520; ALSO
VAN METRE, TRANSPORTATION IN THE UNITED STATES, 80.    FN4  H.R. REP.
NO. 456, 66TH CONG., 1ST SESS. 6:  "IN OUR OPINION, THE INTERESTS OF
THE PUBLIC WILL BE BETTER SERVED WHERE THE CONSOLIDATIONS ARE
VOLUNTARILY ENTERED INTO, UPON APPROVAL BY THE INTERSTATE COMMERCE
COMMISSION, AND WHERE SUCH CONSOLIDATION OR MERGER IS IN THE INTEREST
OF BETTER SERVICE TO THE PUBLIC, OR ECONOMY IN OPERATION, OR OTHERWISE
OF ADVANTAGE TO THE CONVENIENCE OR COMMERCE OF THE PEOPLE." 

FN5  S. REP. NO. 304, 66TH CONG., 1ST SESS. 15. 

FN6  SEE STATEMENT OF SENATOR CUMMINS AT 59 CONG. REC. 226; SEE ALSO
LEONARD, RAILROAD CONSOLIDATION UNDER THE TRANSPORTATION ACT OF 1920,
50, 61.    FN7  H.R. REP. NO. 650, 66TH CONG., 2D SESS. 64; SEE ALSO S.
REP. NO. 1182, PT. 2, 76TH CONG., 3D SESS. 524:  "IT WILL BE NOTED THAT
THE WHOLE PROGRAM OF CONSOLIDATION  ...  WAS VOLUNTARY.  ALTHOUGH THE
COMMISSION COULD PROMULGATE A PLAN, IT WAS GIVEN NO AFFIRMATIVE POWER
TO PUT THE PLAN INTO EFFECT.  IT WAS ENTITLED MERELY TO INSIST THAT ANY
CONSOLIDATIONS SUBMITTED TO IT FOR APPROVAL SHOULD CONFORM TO THE
PLAN.  THUS THE WHOLE PROBLEM OF INITIATING AND DEVELOPING ACTUAL
CONSOLIDATIONS WAS LEFT IN THE HANDS OF THE CARRIERS THEMSELVES  ...
." 

FN8  63 I.C.C. 455. 

FN9  FOR THE COMMISSION'S LETTER TO THE CHAIRMAN OF THE COMMITTEE ON
INTERSTATE COMMERCE, SEE EXHIBIT C-1814, S. REP. NO. 1182, PT. 3, 76TH
CONG., 3D SESS. 1578; SEE ALSO 39 I.C.C.  ANN. REP. 13 (1925). 

FN10  159 I.C.C. 522. 

FN11  S. 2224, 68TH CONG., 1ST SESS. 

FN12  SEE LEONARD, SUPRA, NOTE 6, AT 135, 175-179. 

FN13  S. 1870, 69TH CONG., 1ST SESS.; S. 3840, 69TH CONG., 1ST SESS. 

FN14  REPORT OF THE NATIONAL TRANSPORTATION COMMITTEE, FEBRUARY 13,
1933, P. 11. 

FN15  SEE, E.G., 77 CONG. REC. 4873 ET SEQ.; LEONARD, RAILROAD
CONSOLIDATION UNDER THE TRANSPORTATION ACT OF 1920, 221-222. 

FN16  48 STAT. 211, 214. 

FN17  S. DOC. NO. 119, 73D CONG., 2D SESS. 30-33, 36-37, 86-88. 

FN18  H.R. DOC. NO. 89, 74TH CONG., 1ST SESS. 41; H.R. DOC. NO. 394,
74TH CONG., 2D SESS.  45-47. 

FN19  SHORTLY BEFORE THE TERMINATION OF HIS OFFICE IN 1936, THE
FEDERAL COORDINATOR, DISTURBED BY THE LACK OF INITIATIVE AMONG THE
CARRIERS, ATTEMPTED TO ORDER THE UNIFICATION OF 11 TERMINAL
PROPERTIES.  THE ORDERS MET WITH CONSIDERABLE OBJECTION FROM RAILWAY
LABOR AND WERE IGNORED BY THE CARRIERS.  SEE LEONARD, SUPRA, NOTE 15,
AT 233. 

FN20  H.R. DOC. NO. 583, 75TH CONG., 3D SESS. 36, 39.  FOR THE
ADVERSE REACTION OF THE RAILROAD BROTHERHOODS TO THESE PROPOSALS, SEE
ID., AT 67, 70. 

FN21  REPORT OF COMMITTEE APPOINTED SEPT. 20, 1938, BY THE PRESIDENT
OF THE UNITED STATES TO SUBMIT RECOMMENDATIONS UPON THE GENERAL
TRANSPORTATION SITUATION, DEC. 23, 1938, P. 31. 

FN22  54 STAT. 898, 905. 

FN23  HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE ON
S. 1310, S. 2016, S. 1869 AND S. 2009, 76TH CONG., 1ST SESS. 391-395. 

FN24  LEONARD, RAILROAD CONSOLIDATION UNDER THE TRANSPORTATION ACT OF
1920, 267-269; VAN METRE, TRANSPORTATION IN THE UNITED STATES, 86;
MOULTON, THE AMERICAN TRANSPORTATION PROBLEM, 857-858; DEARING AND
OWEN, NATIONAL TRANSPORTATION POLICY, 322, 342-343, 376. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BURTON AND MR. JUSTICE
MINTON CONCUR, DISSENTING. 

THE COURT MISSTATES THE ISSUE IN THESE CASES.  THE SOLE QUESTION, THE
COURT SAYS, IS WHETHER THE INTERSTATE COMMERCE COMMISSION HAS THE
STATUTORY POWER TO SUBMIT A PLAN OF REORGANIZATION UNDER SEC. 77 OF THE
BANKRUPTCY ACT "WHEREBY A DEBTOR RAILROAD WOULD BE COMPELLED TO MERGE
WITH ANOTHER RAILROAD."  THAT IS NOT THE ISSUE.  NEITHER THE INTERSTATE
COMMERCE COMMISSION NOR THE REORGANIZATION COURT HAS ATTEMPTED TO FORCE
A MERGER OF THESE RAILROADS.  IF AT SOME FUTURE TIME ANY SUCH ATTEMPT
IS MADE, IT WILL BE TIME ENOUGH TO DEAL WITH IT.  HENCE IT IS
MISLEADING FOR THE COURT TO SAY THAT THE ISSUE IS WHETHER A MERGER MAY
BE "FOISTED UPON ONE OF THE PARTIES BY THE COMMISSION."  THE ONE AND
ONLY ISSUE BEFORE US AT THE PRESENT TIME IS WHETHER THE COMMISSION MAY
INCLUDE IN A PLAN OF REORGANIZATION A PROVISION THAT THE DEBTOR OR
BANKRUPT RAILROAD SHOULD BE MERGED WITH ANOTHER ROAD AND SUBMIT THAT
PLAN FOR APPROVAL OR DISAPPROVAL TO THE SECURITY HOLDERS WHO ARE
ENTITLED TO VOTE ON A PLAN.  TO UNDERSTAND THE ISSUE IN THESE CASES IT
IS NECESSARY TO HAVE AN UNDERSTANDING OF THE RESPECTIVE FUNCTIONS OF
THE COMMISSION AND THE REORGANIZATION COURT UNDER SEC. 77. 

FIRST.  UNDER SEC. 77 THE COMMISSION IS THE CHIEF ARCHITECT OF ANY
PLAN OF REORGANIZATION.  THE PLAN MUST ORIGINATE WITH THE COMMISSION. 
SEC. 77(D).  SECOND.  ONCE A PLAN IS CERTIFIED BY THE COMMISSION IT
GOES TO THE COURT FOR A HEARING.  SEC. 77(E).  THIRD.  AFTER THAT
HEARING THE JUDGE EITHER APPROVES OR DISAPPROVES THE PLAN.  SEC.
77(E).  FOURTH.  IF THE JUDGE DISAPPROVES THE PLAN, HE EITHER DISMISSES
THE PROCEEDINGS OR REFERS THE MATTER BACK TO THE COMMISSION.  SEC.
77(E).  FIFTH.  IF THE JUDGE APPROVES THE PLAN, HE SENDS A CERTIFIED
COPY OF HIS OPINION AND ORDER TO THE COMMISSION.  SEC. 77(E).  SIXTH. 
IN THAT CASE THE COMMISSION SUBMITS THE PLAN TO THE SECURITY HOLDERS
FOR A VOTE.  SEC. 77(E).  SEVENTH.  THE COMMISSION CERTIFIES THE
RESULTS OF THE SUBMISSION TO THE COURT.  SEC. 77(E).  EIGHTH.  THE
JUDGE THEN CONFIRMS THE PLAN, IF THE CREDITORS AND STOCKHOLDERS OF EACH
CLASS ENTITLED TO VOTE AND HOLDING "MORE THAN TWO-THIRDS" OF THE CLAIMS
IN EACH CLASS HAVE ACCEPTED THE PLAN.  SEC. 77(E).  NINTH.  IF THAT
PERCENTAGE OF CREDITORS AND STOCKHOLDERS DOES NOT APPROVE THE PLAN, THE
JUDGE, BY TERMS OF SEC. 77(E), MAY NEVERTHELESS APPROVE THE PLAN.  THIS
IS THE SO-CALLED "CRAM DOWN" PROVISION AND IT READS AS FOLLOWS: 

"IF THE PLAN HAS NOT BEEN SO ACCEPTED BY THE CREDITORS AND
STOCKHOLDERS, THE JUDGE MAY NEVERTHELESS CONFIRM THE PLAN IF HE IS
SATISFIED AND FINDS, AFTER HEARING, THAT IT MAKES ADEQUATE PROVISION
FOR FAIR AND EQUITABLE TREATMENT FOR THE INTERESTS OR CLAIMS OF THOSE
REJECTING IT; THAT SUCH REJECTION IS NOT REASONABLY JUSTIFIED IN THE
LIGHT OF THE RESPECTIVE RIGHTS AND INTERESTS OF THOSE REJECTING IT AND
ALL THE RELEVANT FACTS; AND THAT THE PLAN CONFORMS TO THE REQUIREMENTS
OF CLAUSES (1) TO (3), INCLUSIVE, OF THE FIRST PARAGRAPH OF THIS
SUBSECTION (E)."  (FN1) 

THE CASE HAS BEEN DISCUSSED AS IF WE ARE AT THE NINTH STAGE OF THE
REORGANIZATION.  RATHER, ONLY THE FIFTH STAGE HAS BEEN COMPLETED AND
THE SIXTH STAGE IS ABOUT TO START. 

THE CASE HAS BEEN DISCUSSED AS IF THE CREDITORS WILL VOTE THE PLAN
DOWN AND THE JUDGE, IN THE FACE OF THAT, WILL FORCE THE PLAN ON THE
CREDITORS THROUGH THE "CRAM DOWN" PROVISION. 

BUT AS YET NO VOTE HAS BEEN TAKEN.  PERHAPS THE POWERFUL INTERESTS
REPRESENTED BY THE PETITIONERS WILL VOTE SOLIDLY AND OVERWHELMINGLY
AGAINST THE PLAN.  PERHAPS NOT.  ELECTION CAMPAIGNS SOMETIMES CHANGE
VOTES.  PERHAPS THE CREDITORS WILL EVENTUALLY APPROVE THE PLAN. 

OUR PRESENT PROBLEM MUST BE WEIGHED IN LIGHT OF BOTH OF THOSE
CONTINGENCIES. 

IF THE CREDITORS APPROVE THE PLAN BY "MORE THAN TWO-THIRDS" VOTE BUT
LESS THAN 100 PERCENT, WOULD IT BE LAWFUL TO CONFIRM IT?  I THINK IT
PLAINLY WOULD BE FOR THE FOLLOWING REASONS: 

MERGERS.  SECTION 77(B)(5) SAYS THAT A PLAN "MAY INCLUDE THE TRANSFER
OF ANY INTEREST IN OR CONTROL OF ALL OR ANY PART OF THE PROPERTY OF THE
DEBTOR TO ANOTHER CORPORATION OR CORPORATIONS, THE MERGER OR
CONSOLIDATION OF THE DEBTOR WITH ANOTHER CORPORATION OR CORPORATIONS,"
ETC.  SO IT IS CLEAR THAT CONGRESS CONTEMPLATED THAT MERGERS OF
RAILROADS COULD BE EFFECTED BY A SEC. 77 PLAN OF REORGANIZATION.  (FN2)
SINCE MERGERS COULD BE ACCOMPLISHED THAT WAY, CONGRESS FELT - AS THE
LEGISLATIVE HISTORY ABUNDANTLY SHOWS - THAT THE COMMISSION MUST APPLY
IN THIS CLASS OF MERGERS THE SAME STANDARDS IT MUST APPLY IN OTHER
MERGERS.  ACCORDINGLY CONGRESS WROTE INTO SEC. 77(F) THE "CONSISTENCY
CLAUSE" - THAT ON CONFIRMATION OF A PLAN THE COMMISSION SHALL GRANT
AUTHORITY FOR THE "TRANSFER OF ANY PROPERTY, SALE, CONSOLIDATION OR
MERGER OF THE DEBTOR'S PROPERTY  ...  TO THE EXTENT CONTEMPLATED BY THE
PLAN AND NOT INCONSISTENT WITH THE PROVISIONS AND PURPOSES" OF THE
INTERSTATE COMMERCE ACT.  SECTION 5 OF THE INTERSTATE COMMERCE ACT
PRESCRIBES BOTH A PROCEDURE FOR THE COMMISSION TO FOLLOW IN THOSE CASES
AND THE STANDARDS WHICH THE COMMISSION MUST APPLY. 

THE PROCEDURE INCLUDES AMONG OTHER THINGS (A) NOTIFICATION TO THE
GOVERNORS OF EACH STATE IN WHICH THE PROPERTIES OF THE CARRIERS ARE
SITUATED; AND (B) A REASONABLE OPPORTUNITY FOR THE "INTERESTED PARTIES"
TO BE HEARD.  NO OBJECTION IS MADE IN THESE CASES (AND NO SHOWING IS
ATTEMPTED) THAT THAT PROCEDURE WAS NOT FOLLOWED. 

THE STANDARDS FOR THE COMMISSION'S ACTION ON MERGERS ARE DIFFERENT
FROM THOSE PRESCRIBED IN CASE OF REORGANIZATIONS.  IN REORGANIZATIONS
THE COMMISSION IS CONCERNED WITH MATTERS OF VALUATION, THE AMOUNT OF
FIXED CHARGES, THE RATIO OF BONDS TO STOCK, AND LIKE FINANCIAL
PROBLEMS.  SEE ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448. 
CONGRESS BY SEC. 5 OF THE INTERSTATE COMMERCE ACT HAS PRESCRIBED
SPECIAL STANDARDS FOR MERGERS.  SECTION 5(2)(C) STATES: 

"IN PASSING UPON ANY PROPOSED TRANSACTION UNDER THE PROVISIONS OF
THIS PARAGRAPH (2), THE COMMISSION SHALL GIVE WEIGHT TO THE FOLLOWING
CONSIDERATIONS, AMONG OTHERS:  (1) THE EFFECT OF THE PROPOSED
TRANSACTION UPON ADEQUATE TRANSPORTATION SERVICE TO THE PUBLIC; (2) THE
EFFECT UPON THE PUBLIC INTEREST OF THE INCLUSION, OR FAILURE TO
INCLUDE, OTHER RAILROADS IN THE TERRITORY INVOLVED IN THE PROPOSED
TRANSACTION; (3) THE TOTAL FIXED CHARGES RESULTING FROM THE PROPOSED
TRANSACTION; AND (4) THE INTEREST OF THE CARRIER EMPLOYEES AFFECTED." 

"THERE IS NO OBJECTION MADE NOR SHOWING ATTEMPTED THAT IN THESE CASES
THE COMMISSION FAILED TO MAKE FINDINGS ON THOSE ISSUES NOR THAT THE
FINDINGS AS MADE WERE INADEQUATE.  THE COMMISSION INDEED WAS MOST
EXPLICIT.  IT SAID THAT CONTROL OF FLORIDA EAST COAST BY THE PETITIONER
IN NO. 24, ST. JOE PAPER CO., WOULD BE "CONTRARY TO THE PUBLIC
INTEREST" SINCE THAT COMPANY, "PARTICULARLY BECAUSE OF ITS LARGE
BANKING INTERESTS," WOULD BE IN A POSITION TO INFLUENCE THE ROUTING OF
SHIPMENTS.  282 I.C.C., P. 187.  IT FOUND THAT THE MERGER OF THE
FLORIDA EAST COAST WITH ATLANTIC COAST LINE: 

- WOULD BE IN THE PUBLIC INTEREST.  (FN3)  ID., PP. 187, 188. 

- WOULD ADEQUATELY PROTECT THE INTERESTS OF EMPLOYEES.  (FN4)  ID.,
P. 187. 

- WOULD RESULT IN SAVINGS AS A RESULT OF UNIFICATION.  (FN5)  ID., P.
187. 

- WOULD RESULT IN A BETTERMENT OF SERVICE TO THE PUBLIC.  (FN6)  ID.,
P. 187. 

- WOULD NOT ADVERSELY AFFECT THE CITIZENS AND COMMUNITIES OF THE EAST
COAST OF FLORIDA.  (FN7) ID., PP. 187-188. 

- WOULD GIVE THE DEBTOR GREATER FINANCIAL STABILITY.  (FN8)  ID., P.
188. 

- WOULD GIVE A BETTER SERVICE THAN SERVICE UNDER AN OPERATION BY ST.
JOE PAPER CO., (FN9) PETITIONER IN NO. 24.  ID., P. 188. 

WE ARE NOT ASKED TO SET ASIDE THOSE FINDINGS.  THEY ARE INDEED NOT
CHALLENGED.  ON THEIR FACE THEY PLAINLY MEET THE STANDARDS OF SEC. 5 OF
THE INTERSTATE COMMERCE ACT.  WE CANNOT SAY ON THIS RECORD THAT THEY
ARE NOT CONSISTENT WITH SEC. 5 WITHIN THE MEANING OF THE CONSISTENCY
CLAUSE OF SEC. 77(F).  SO FAR AS THIS RECORD SHOWS, THE COMMISSION HAS
FAITHFULLY, PAINSTAKINGLY, AND CONSCIENTIOUSLY PERFORMED THE
OBLIGATIONS WHICH SEC. 5 OF THE INTERSTATE COMMERCE ACT IMPOSES ON IT.
IT WOULD SEEM OBVIOUS, THEREFORE, THAT THE COMMISSION SHOULD BE ALLOWED
TO SUBMIT THE PLAN, INCLUDING THE PROVISION FOR A MERGER, TO THE
SECURITY HOLDERS FOR THEIR APPROVAL OR DISAPPROVAL. 

THE COURT, HOWEVER, DISALLOWS THE SUBMISSION AND RESTS ITS ACTION ON
A CURIOUS REASON.  IT SAYS THAT CONSENT OF THE RAILROADS HAS NOT BEEN
OBTAINED AND WITHOUT THAT CONSENT NO MERGER CAN BE CONSUMMATED IN SEC.
77 PROCEEDINGS.  BUT THAT REASON IS WHOLLY AT WAR WITH THE STATUTORY
SCHEME OF RAILROAD REORGANIZATIONS. 

ONCE A PETITION FOR REORGANIZATION IS APPROVED, THE COURT APPOINTS
TRUSTEES WHO HAVE FULL MANAGEMENT OF THE BUSINESS UNDER THE COURT'S
SUPERVISION.  SEC. 77(C).  THE TRUSTEES TAKE OVER THE FUNCTIONS OF THE
OFFICERS AND BOARD OF DIRECTORS.  BUT APPARENTLY THE COURT, WHEN IT
REFERS TO "THE DEBTOR," DOES NOT MEAN THE TRUSTEES, FOR IT SPEAKS OF
"THOSE WHO IN THE ABSENCE OF SEC. 77 WOULD WIELD THE CORPORATE MERGER
POWERS."  THAT MUST MEAN EITHER THE OLD MANAGEMENT OR THE
STOCKHOLDERS.  YET SUCH A READING CANNOT SQUARE WITH SEC. 77.  ONE CAN
LOOK THROUGH SEC. 77 IN VAIN FOR ANY STATUS GRANTED THE OLD MANAGEMENT
TO APPROVE OR DISAPPROVE A PLAN.  "THE DEBTOR" COMMONLY IS IDENTIFIED
WITH THE STOCKHOLDERS, I.E., THE EQUITABLE OWNERS OF THE ROAD.  BUT THE
METHOD OF GETTING THEIR CONSENT TO ANY PLAN OF REORGANIZATION IS
PRESCRIBED IN SEC. 77.  THEY MAY OR MAY NOT BE ENTITLED TO VOTE,
DEPENDING ON WHETHER THEIR STOCK REPRESENTS A VALUE IN THE RAILROAD. 
IF THE STOCK HAS NO VALUE, THEY ARE NOT ENTITLED TO VOTE.  IF IT HAS
VALUE, THEY ARE ENTITLED TO VOTE.  SEC. 77(E).  IF THE SECURITY HOLDERS
WHO HAVE A VOTE APPROVE THE PLAN, THE CONSENT NECESSARY TO EFFECT BOTH
THE RECAPITALIZATION AND THE MERGER HAS BEEN GIVEN.  TO ALLOW THE OLD
MANAGEMENT OR THE STOCKHOLDERS A VETO POWER WHERE CONGRESS HAS PROVIDED
THEY SHALL NOT VOTE IS TO INDULGE IN AS BOLD A PIECE OF JUDICIAL
LEGISLATION AS ONE CAN FIND IN THE BOOKS. 

IT IS SAID THAT THE CONSISTENCY CLAUSE OF SEC. 77 INCORPORATES BY
REFERENCE SEC. 5 OF THE INTERSTATE COMMERCE ACT.  AND SO IT DOES.  BUT
THAT DOES NOT MEAN THAT BECAUSE THE INITIATION OF MERGER PLANS RESTED
WITH THE MANAGEMENT PRIOR TO BANKRUPTCY, IT RESTS WITH THE OLD
MANAGEMENT AFTER BANKRUPTCY.  THE CONCLUSION THAT IT DOES REVEALS A
BASIC MISUNDERSTANDING OF THE SYSTEM OF BANKRUPTCY REORGANIZATION
CONTAINED IN SEC. 77.  WHEN CONGRESS DESIGNED THAT LEGISLATION, IT
PRESCRIBED PRECISELY HOW THE CONSENT NECESSARY FOR EACH STEP IN THE
REORGANIZATION SHOULD BE OBTAINED.  SECTION 77 GIVES THE OLD MANAGEMENT
NO VOTE ON ANY MEASURE.  IF THE EQUITY VOTES, THE STOCKHOLDERS CAST THE
BALLOT.  AND A PROCEDURE IS DESIGNED TO DEPRIVE THEM OF A VOTE IF THEIR
SECURITIES NO LONGER REPRESENT ANY VALUE, AS IS THE CASE HERE.    NO
COMFORT CAN BE FOUND IN SEC. 77(D), WHICH GIVES THE DEBTOR, I.E., THE
OLD MANAGEMENT, STANDING TO PROPOSE A PLAN OF REORGANIZATION.  PLANS OF
REORGANIZATION MAY BE PROPOSED BY THE DEBTOR, BY THE TRUSTEES, BY 10
PERCENT OF ANY CLASS OF CREDITORS OR OF STOCKHOLDERS "OR WITH THE
CONSENT OF THE COMMISSION BY ANY PARTY IN INTEREST."  SEC. 77(D).  THE
PROPOSAL OF A PLAN EXPRESSES MERELY THE WISH.  IN LOGIC AND IN HISTORY
THERE IS NO REASON WHY A PLAN CONTAINING A MERGER MAY NOT BE PROPOSED
BY THE NEW MANAGEMENT AS WELL AS THE OLD, BY CREDITORS AS WELL AS
STOCKHOLDERS.  STANDING TO PRESENT A PLAN HAS NO RELEVANCY TO THE
FAIRNESS OR FEASIBILITY OF THE PLAN PRESENTED.  TO SAY THAT ONLY "THE
DEBTOR" MAY SUBMIT A PLAN THAT CONTAINS PROVISIONS FOR A MERGER IS TO
GIVE A WHIP HAND TO PEOPLE WHO DO NOT EVEN HAVE ENOUGH OF AN INTEREST
TO VOTE ON A PLAN.  THE DEBTOR COMMONLY REPRESENTS THE EQUITY; AND
WHEN, AS HERE, THE EQUITY IS SO FAR UNDER THAT IT CAN HAVE NO POSSIBLE
INTEREST IN THE REORGANIZATION (EXCEPT POSSIBLY A NUISANCE VALUE
CREATED BY LONG-DRAWN-OUT LITIGATION), IT VIOLATES ALL SENSE OF
FAIRNESS AND DISREGARDS THE MANDATE OF CONGRESS TO LET THE EQUITY HAVE
THE PREFERRED POSITION THE COURT NOW CREATES.  CONGRESS HAS SET THE
STANDARDS FOR THE PROTECTION OF THE "EQUITABLE OWNERS."  WHERE, AS
HERE, THEY HAVE NO VALUE IN THE ENTERPRISE, CONGRESS SAID THEY SHOULD
BE DISREGARDED. 

MUCH EMPHASIS IS PLACED BY THE COURT ON S. REP. NO. 1170, 79TH CONG.,
2D SESS. 80-85, A REPORT BY THE SENATE COMMITTEE ON INTERSTATE COMMERCE
HEADED BY CHAIRMAN WHEELER.  THERE ARE TWO REASONS WHY THAT REPORT IS
IRRELEVANT TO THE PRESENT ISSUE.  FIRST, THAT REPORT CONDEMNED THE USE
OF SEC. 77 "TO BYPASS" SEC. 5 OF THE INTERSTATE COMMERCE ACT.  AS I
HAVE SHOWN, SEC. 5 WAS NOT "BYPASSED" IN THE PRESENT CASE.  THE
PROCEDURES, SAFEGUARDS, AND STANDARDS IT PRESCRIBES WERE FULLY
SATISFIED BY THE COMMISSION.  SECOND, THAT REPORT COVERED A BILL WHICH
ENDEAVORED TO MAKE CHANGES IN THE EXISTING LAW AND PRACTICES.  BUT THAT
BILL NEVER WAS ENACTED.  IT IS, HOWEVER, NOW USED AS AN AUTHORITATIVE
INTERPRETATION OF A LAW WHICH IT SOUGHT TO CHANGE. 

AN UNJAUNDICED READING OF SEC. 5 OF THE INTERSTATE COMMERCE ACT AND
OF SEC. 77 OF THE BANKRUPTCY ACT RESULTS, I SUBMIT, IN THE FOLLOWING
CONCLUSIONS: 

ANY PERSON WITH STANDING TO SUBMIT A PLAN OF REORGANIZATION MAY
INCLUDE IN IT PROVISIONS FOR A MERGER. 

THE COMMISSION TO APPLY IN PASSING ON SUCH A PLAN AND THOSE STANDARDS
HAVE BEEN WHOLLY SATISFIED HERE. 

PLAN, INCLUDING A PLAN THAT PROVIDES FOR A MERGER. 

WHAT REASON THEN CAN THERE BE FOR NOT LETTING THE SECURITY HOLDERS
VOTE TO ADOPT OR REJECT THIS PLAN? 

IT IS SAID THAT IF THE SECURITY HOLDERS REJECT THE PLAN, THE
REORGANIZATION COURT MAY NONETHELESS FORCE IT ON THEM.  THERE ARE
SEVERAL ANSWERS TO THAT, AS I HAVE ALREADY SUGGESTED: 

(1)  THE SECURITY HOLDERS MAY NOT REJECT THE PLAN. 

(2)  EVEN IF THEY DO REJECT THE PLAN, THE REORGANIZATION COURT MAY
DECIDE NOT TO FORCE THE PLAN ON THEM.  TO FORCE IT ON THEM THE COURT
MUST HAVE A HEARING AND FIND, AMONG OTHER THINGS, THAT THE REJECTION
"IS NOT REASONABLY JUSTIFIED IN THE LIGHT OF THE RESPECTIVE RIGHTS AND
INTERESTS OF THOSE REJECTING IT AND ALL THE RELEVANT FACTS  ...  ." 
SEC. 77(E). 

(3)  EVEN IF THE REORGANIZATION COURT UNDERTOOK TO FORCE ANY PLAN ON
THE SECURITY HOLDERS, WE MIGHT WELL OVERRULE THAT ORDER.  IN THE ONLY
CASE OF THE "CRAM DOWN" PROVISION ON WHICH WE HAVE PASSED, R.F.C. V.
DENVER & R.G.W.R. CO., 328 U.S. 495 - ONE INVOLVING ISSUES DIFFERENT
FROM THOSE NOW TENDERED (FN10) - WE RESERVED DECISION ON THE POWER OF
THE REORGANIZATION COURT.  WE SAID, P. 535: 

"THIS DOES NOT MEAN THAT IF A PLAN IS APPROVED AS FAIR AND EQUITABLE
BY THE COMMISSION AND THE COURT, THERE CANNOT BE A REASONABLE
JUSTIFICATION FOR ITS REJECTION BY A CLASS OF CLAIMANTS ON SUBMISSION. 
REASONS TO MAKE THEIR REJECTION REASONABLE MAY ARISE  ...  ." 

I SAY WE MIGHT WELL STOP ANY ATTEMPT OF THE COURT TO INVOKE THE "CRAM
DOWN" PROVISION BECAUSE WE CANNOT TELL IN ADVANCE WHAT A PARTICULAR
SITUATION MIGHT DISCLOSE.  UNDER SEC. 77(E), IT WILL BE REMEMBERED,
"MORE THAN TWO-THIRDS" OF EACH CLASS ENTITLED TO VOTE CAN VOTE FOR A
PLAN AND FORCE IT ON THE MINORITY.  UNANIMOUS CONSENT IS NOT
NECESSARY. 

(1)  SUPPOSE THE ELECTION RETURNS BRING APPROVAL BY A BARE TWO
THIRDS.  SUPPOSE THE JUDGE IS SATISFIED THAT ONE BLOCK OF SECURITIES
VOTING AGAINST THE PLAN HAS A SPECIAL AX TO GRIND, AS THE COMMISSION
SUGGESTS IS TRUE IN THIS CASE OF THE ST. JOE PAPER CO., PETITIONER IN
NO. 24.  WOULD IT BE UNLAWFUL FOR THE COURT TO INVOKE THE "CRAM DOWN"
PROVISION IN THAT CASE?  "CONSENT" HAS NOT BEEN OBTAINED SINCE CONGRESS
PROVIDED THAT "MORE THAN TWO-THIRDS" SHOULD APPROVE A PLAN.  BUT THE
PUBLIC INTEREST MIGHT WELL JUSTIFY USE OF THE "CRAM DOWN" PROVISION IN
THAT CASE AS THE ONLY EFFECTIVE METHOD FOR DEALING WITH A RECALCITRANT
(OR EVEN BLACKMAILING) MINORITY.  IN LIGHT OF WHAT WE SAID IN THE
DENVER & RIO GRANDE CASE (328 U.S., AT 535) SUCH REJECTION BY THE ONE
THIRD MINORITY MIGHT WELL BE DEEMED TO HAVE NO "REASONABLE
JUSTIFICATION" IN LIGHT OF ALL THE FACTS AND CIRCUMSTANCES. 

(2)  SUPPOSE THE ELECTION RETURNS BRING APPROVAL FROM ONLY 1 PERCENT
OF THE SECURITY HOLDERS.  COULD THE "CRAM DOWN" PROVISION PROPERLY BE
INVOKED IN THAT CASE?  IT IS DIFFICULT EVEN TO IMAGINE A CASE WHERE IT
WOULD BE PROPER TO DO SO.  THE "CRAM DOWN" IS A HARSH REMEDY, THE USE
OF WHICH WOULD REQUIRE SPECIAL REASONS. 

BUT THE FACT THAT THE OCCASIONS FOR ITS USE SHOULD BE CLOSELY GUARDED
SHOULD NOT MEAN THAT IT CAN NEVER BE USED IN CONNECTION WITH A SEC. 77
PLAN OF REORGANIZATION INVOLVING A MERGER, UNLESS "THE DEBTOR" (HERE
REPRESENTING SECURITY HOLDERS NOT EVEN ENTITLED TO VOTE ON A PLAN)
PROPOSES THE MERGER.  UNDER SEC. 77 AND SEC. 5 OF THE INTERSTATE
COMMERCE ACT, READ TOGETHER, IT IS PLAIN THAT CONGRESS SUBJECTED PLANS
CONTAINING MERGERS TO THE SAME "CONSENT" REQUIREMENTS AS PLANS NOT
CONTAINING MERGERS.  THERE IS NOT A WORD IN THE STATUTE OR IN THE
LEGISLATIVE HISTORY TO INDICATE THAT THE OLD MANAGEMENT OR STOCKHOLDERS
NOT ENTITLED TO VOTE ON A PLAN NEVERTHELESS HAVE A VETO OVER IT. 

THE QUESTION OF THE APPLICATION OF THE "CRAM DOWN" PROVISION OF SEC.
77 TO PLANS INVOLVING MERGERS HAS NEVER BEEN PRESENTED TO US.  (FN11)
THAT QUESTION IS PREMATURE HERE, FOR IT MAY NEVER BE REACHED.  IT IS A
LARGE QUESTION OF GREAT IMPORTANCE AND ONE THAT SHOULD BE DECIDED, NOT
IN THE ABSTRACT, BUT ONLY ON THE SPECIFIC FACTS OF SPECIFIC CASES.  IN
THESE CASES WE SHOULD SPECIFICALLY RESERVE DECISION ON IT UNTIL IT IS
PRESENTED.  WE SHOULD AFFIRM THE JUDGMENT IN THESE CASES, ALLOWING THE
PLAN TO BE SUBMITTED FOR APPROVAL OR REJECTION, EXPLICITLY SAVING THE
RIGHTS OF ALL PARTIES IN CASE THE "CRAM DOWN" PROVISION IS USED AGAINST
THEM. 

FN1  CLAUSES (1) AND (2) REFERRED TO READ AS FOLLOWS: 

"THE JUDGE SHALL APPROVE THE PLAN IF SATISFIED THAT:  (1) IT COMPLIES
WITH THE PROVISIONS OF SUBSECTION (B) OF THIS SECTION, IS FAIR AND
EQUITABLE, AFFORDS DUE RECOGNITION TO THE RIGHTS OF EACH CLASS OF
CREDITORS AND STOCKHOLDERS, DOES NOT DISCRIMINATE UNFAIRLY IN FAVOR OF
ANY CLASS OF CREDITORS OR STOCKHOLDERS, AND WILL CONFORM TO THE
REQUIREMENTS OF THE LAW OF THE LAND REGARDING THE PARTICIPATION OF THE
VARIOUS CLASSES OF CREDITORS AND STOCKHOLDERS; (2) THE APPROXIMATE
AMOUNTS TO BE PAID BY THE DEBTOR, OR BY ANY CORPORATION OR CORPORATIONS
ACQUIRING THE DEBTOR'S ASSETS, FOR EXPENSES AND FEES INCIDENT TO THE
REORGANIZATION, HAVE BEEN FULLY DISCLOSED SO FAR AS THEY CAN BE
ASCERTAINED AT THE DATE OF SUCH HEARING, ARE REASONABLE, ARE WITHIN
SUCH MAXIMUM LIMITS AS ARE FIXED BY THE COMMISSION, AND ARE WITHIN SUCH
MAXIMUM LIMITS TO BE SUBJECT TO THE APPROVAL OF THE JUDGE; ...  ." 

FN2  THE COMMISSION HAS REPEATEDLY PROPOSED AND APPROVED
REORGANIZATION PLANS REQUIRING CONSOLIDATIONS OR MERGERS.  SEE, E.G.,
ALTON R. CO. REORGANIZATION, 261 I.C.C. 343; NEW YORK, N.H.&H.R. CO.
REORGANIZATION, 254 I.C.C. 63, 405; MISSOURI PAC. R. CO.
REORGANIZATION, 239 I.C.C. 7; DENVER & R.G.W.R. CO. REORGANIZATION, 233
I.C.C. 515, 239 I.C.C. 583, 254 I.C.C.  349.  AS A RESULT OF SOME OF
THESE PROCEEDINGS THE COMMISSION HAS BEEN CRITICIZED FOR MISAPPLYING OR
DISREGARDING THE STANDARDS SET UP FOR MERGERS BY SEC. 5 OF THE
INTERSTATE COMMERCE ACT.  S. REP. NO. 1170, 79TH CONG., 2D SESS. 80
85.  IN THE PRESENT CASE, HOWEVER, NO ARGUMENT IS MADE THAT THE PROPER
STANDARDS HAVE NOT BEEN APPLIED.  INDEED THAT QUESTION IS NOT BEFORE
US.  MOREOVER, NOT EVEN THE SENATE REPORT, SUPRA, SUGGESTS THAT THE
COMMISSION CANNOT EVER APPROVE REORGANIZATION MERGERS.  THAT REPORT
SAYS ONLY THAT THE "PROCEDURE AND SAFEGUARDS OF THE TRANSPORTATION ACT
MUST BE PRESERVED  ...  ."  AND, AS WE SHALL SEE, THE STANDARDS
PRESCRIBED IN SEC. 5 HAVE BEEN SATISFIED HERE, SO FAR AS THIS RECORD
REVEALS. 

FN3  "THE PUBLIC INTEREST IN ITS BROADER CONCEPT WILL BE BETTER
SERVED BY INTEGRATION OF THE DEBTOR INTO A LARGE RAILROAD SYSTEM THAN
BY ITS CONTINUED OPERATION AS AN INDEPENDENT RAILROAD. 

  *         *         *         *         * 

"THE EFFECT OF A MERGER UPON THE SOUTHERN RAILWAY SYSTEM AND SEABOARD
AIR LINE RAILROAD COMPANY, IF ANY, WILL NOT ADVERSELY AFFECT THE PUBLIC
INTEREST. 

     *         *         *         *   * 

"THE RECORD IS SUFFICIENT IN ALL RESPECTS FOR A DETERMINATION OF THE
ISSUE OF THE PUBLIC INTERESTS INVOLVED IN AN ACQUISITION OF THE
DEBTOR'S PROPERTIES BY THE COAST LINE. 

"IT WILL BE COMPATIBLE WITH THE PUBLIC INTEREST FOR THE COAST LINE TO
CONTROL THE DEBTOR'S PROPERTY. 

"WHILE THE PLAN PROPOSED BY THE COAST LINE IS INEQUITABLE IN THAT IT
DOES NOT PROVIDE FOR THE FULL EQUITABLE EQUIVALENT OF THE RIGHTS TO BE
SURRENDERED BY THE DEBTOR'S CREDITORS, THE PLAN AS HEREINABOVE MODIFIED
WILL COMPLY WITH SUCH REQUIREMENTS, WILL BE FAIR AND EQUITABLE, AND
OTHERWISE IN THE PUBLIC INTEREST." 

FN4  "THE INTERESTS OF THE RAILROAD EMPLOYEES AFFECTED BY THE MERGER
WILL BE ADEQUATELY PROTECTED." 

FN5  "THERE SHOULD EVENTUALLY RESULT SAVINGS THROUGH A UNIFICATION OF
THE TWO CARRIERS OF BETWEEN $850,000 AND $1,000,000 PER ANNUM, THROUGH
(A) EVENTUAL UNIFICATION OF THE EXECUTIVE AND SUPERVISORY FORCES OF THE
TWO CARRIERS; (B) CONSOLIDATION OF INTERCHANGE YARDS AND SHOP
FACILITIES AT JACKSONVILLE; (C) UNIFICATION OF OPERATIONS OF THE
FREIGHT STATIONS OF THE TWO CARRIERS AT JACKSONVILLE; AND (D)
COORDINATION AND CONSOLIDATION OF OFF-LINE TRAFFIC OFFICES OF THE TWO
CARRIERS." 

FN6  "THERE WOULD BE BETTERMENT OF SERVICE TO THE PUBLIC RESULTING
FROM A UNIFICATION OF THE DEBTOR'S LINE WITH THAT OF THE COAST LINE." 

FN7  "THE APPREHENSIONS OF THE CITIZENS AND COMMUNITIES OF THE EAST
COAST OF FLORIDA THAT A MERGER WOULD ADVERSELY AFFECT THEIR INTERESTS
ARE NOT JUSTIFIED SINCE (A) IT WOULD BE TO THE INTEREST OF THE COAST
LINE TO SERVE ALL ITS TERRITORY IMPARTIALLY, (B) EXISTING THROUGH
ROUTES VIA JACKSONVILLE WILL BE MAINTAINED, AND (C) WHILE THE COAST
LINE WOULD ATTEMPT TO RETAIN ITS LONG HAUL, ITS APPEAL TO THE PUBLIC
WOULD BE BASED PRIMARILY ON THE QUALITY OF ITS SERVICE, AND THE TRAFFIC
RELATIONSHIPS BETWEEN TRUNK-LINE CARRIERS WOULD PREVENT ANY ABUSE OF
POWER SUCH AS WOULD BE POSSIBLE UNDER CONTROL OF THE DEBTOR'S LINE BY
THE ST. JOE COMPANY." 

FN8  "THE MERGER OF THE DEBTOR WITH THE COAST LINE WILL BE OF
APPRECIABLE BENEFIT IN ASSURING GREATER FINANCIAL STABILITY FOR THE
DEBTOR." 

FN9  "IN GENERAL, THERE IS A SUBSTANTIAL PREPONDERANCE OF EVIDENCE
THAT A MERGER WILL INSURE A MORE ADEQUATE, ECONOMICAL, AND EFFICIENT
TRANSPORTATION SERVICE THAN WILL OPERATION OF THE DEBTOR BY THE ST. JOE
COMPANY." 

FN10  SEE NOTE 11, INFRA. 

FN11  WE HAVE CONSIDERED THE "CRAM DOWN" PROVISION OF SEC. 77(E) ONLY
ONCE.  SEE R.F.C. V. DENVER & R.G.W.R. CO., 328 U.S. 495, 531.  A
MERGER WAS INVOLVED IN THAT REORGANIZATION BUT IT WAS NOT AT ISSUE
BEFORE THIS COURT.  THE COMPLAINT THERE WAS BY JUNIOR CREDITORS ON
MATTERS THAT WERE PURELY FINANCIAL:  THAT THE VALUATION AND ALLOCATION
OF SECURITIES PROPOSED HAD LEFT THEM TOO SMALL A PARTICIPATION.  WE
DECIDED THAT THE "CRAM DOWN" PROVISION COULD BE AND WAS IN THAT CASE
CONSTITUTIONALLY AND PROPERLY APPLIED.  ON THE FACTS WE HELD THAT THE
OBJECTING CLASS WAS WITHOUT "REASONABLE JUSTIFICATION," SINCE IT
COMPLAINED ONLY OF FINANCIAL ASPECTS OF THE PLAN WHICH WERE FAIR AND
EQUITABLE.  WE MADE NO DECISION REGARDING MERGERS AND LAID DOWN NO RULE
OF LAW.  WE LEFT THE REORGANIZATION COURTS FREE TO CONFIRM OR REJECT
FUTURE PLANS AS THE FACTS, THE EQUITIES, AND THE VOTES REQUIRED. 
..END :


















THOMPSON V. LAWSON 347 U.S. 334 


NO. 352.  ARGUED MARCH 9, 1954 - DECIDED APRIL 5, 1954 - 205 F.2D 527,
AFFIRMED. 


OTIS AND JULIA THOMPSON WERE MARRIED IN 1921, AND LIVED TOGETHER AS
HUSBAND AND WIFE UNTIL 1925, WHEN OTIS DESERTED HER.  THEY WERE NEVER
DIVORCED BUT THEY NEVER LIVED TOGETHER AGAIN, AND HE NEVER CONTRIBUTED
ANYTHING TO HER SUPPORT OR THAT OF THEIR TWO CHILDREN, NOR DID SHE EVER
SEEK TO HAVE HIM DO SO.  OTIS "MARRIED" ANOTHER WOMAN IN 1929.  IN 1940
JULIA "MARRIED" ANOTHER MAN, AND THEREAFTER LIVED AND HELD HERSELF OUT
AS THE LATTER'S WIFE.  SHE WAS DIVORCED FROM HIM IN 1949.  SHORTLY
BEFORE OTIS' DEATH, HE ASKED JULIA TO "TAKE HIM BACK," BUT SHE REFUSED,
HAVING NO INTENTION OF EVER AGAIN LIVING WITH HIM AND RESUMING THE
RELATIONSHIP OF HUSBAND AND WIFE.  HELD:  AT THE TIME OF OTIS' DEATH IN
1951, JULIA WAS NOT HIS "WIDOW" WITHIN THE MEANING OF THE
LONGSHOREMEN'S AND HARBOR WORKERS' ACT, 33 U.S.C. SEC. 902(16), AND WAS
NOT ENTITLED UNDER THE ACT TO COMPENSATION FOR HIS DEATH.  PP. 335
337. 

(A)  SINCE, AT THE TIME OF THE DECEDENT'S DEATH, JULIA WAS NOT LIVING
APART FROM HIM "BY REASON OF HIS DISERTION," SHE WAS NOT HIS "WIDOW"
WITHIN THE SCOPE OF THE PROVISION.  P. 336. 

(B)  BY HER PURPORTED REMARRIAGE, JULIA SEVERED THE BOND WHICH WAS
THE BASIS OF HER RIGHT TO CLAIM A DEATH BENEFIT AS THE DECEDENT'S
STATUTORY DEPENDENT.  P. 337. 

THOMPSON V. LAWSON, DEPUTY COMMISSIONER OF THE UNITED STATES BUREAU OF
EMPLOYEES COMPENSATION, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON JUNE 15, 1951, OTIS THOMPSON DIED FROM INJURIES SUFFERED WHILE
LOADING A SHIP FOR HIS EMPLOYER.  TWO WOMEN SOUGHT A DEATH BENEFIT
UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, EACH
CLAIMING TO BE HIS "WIDOW."  THE DEPUTY COMMISSIONER DENIED BOTH
CLAIMS, THAT OF ONE WOMAN ON THE GROUND THAT SHE WAS NOT THE LAWFUL
WIFE OF DECEDENT, AND THAT OF THE OTHER BECAUSE AT THE TIME OF OTIS'
DEATH SHE WAS LIVING APART FROM HIM NOT "BY REASON OF HIS DESERTION,"
33 U.S.C. SEC. 902(16).  ON A REVIEW OF THE LATTER DISMISSAL, THE
DISTRICT COURT SUSTAINED THE DEPUTY COMMISSIONER'S ORDER, AND THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  205 F.2D 527.  IN DOING SO,
THAT COURT REJECTED CONTRARY DECISIONS OF THE COURT OF APPEALS FOR THE
SECOND AND NINTH CIRCUITS, ASSOCIATED OPERATING CO. V. LOWE, 138 F.2D
916, MOORE DRY DOCK CO. V. PILLSBURY, 169 F.2D 988.  WE GRANTED
CERTIORARI TO RESOLVE THIS CONFLICT.  346 U.S. 921. 

THE DEPUTY COMMISSIONER MADE THESE FINDINGS.  OTIS AND JULIA THOMPSON
WERE MARRIED IN 1921, AND LIVED TOGETHER AS HUSBAND AND WIFE UNTIL
NOVEMBER 1925, WHEN OTIS DESERTED HER.  THEY NEVER LIVED TOGETHER
AGAIN, AND HE NEVER CONTRIBUTED ANYTHING TO THE SUPPORT OF JULIA OR
THEIR TWO CHILDREN, NOR DID SHE EVER ENDEAVOR TO SECURE SUCH SUPPORT. 
MEAHWHILE OTIS HAD TAKEN UP WITH ONE SALLIE WILLIAMS, AND THEY WENT
THROUGH A MARRIAGE CEREMONY IN 1929.  JULIA, IN TURN, FOUND ANOTHER
MATE, ONE JIMMY FULLER, WHOM SHE "MARRIED" IN 1940.  THEREAFTER SHE WAS
KNOW AS JULIA FULLER.  SHE WAS FORMALLY DIVORCED FROM FULLER IN 1949. 
SHORTLY BEFORE OTIS' DEATH, HE ASKED JULIA TO "TAKE HIM BACK," BUT SHE
REFUSED, HAVING NO INTENTION OF EVER AGAIN LIVING WITH HIM AND RESUMING
THE RELATIONSHIP OF HUSBAND AND WIFE. 

THE SINGLE, UNENTANGLED QUESTION BEFORE US IS WHETHER, ON THESE
UNCHALLENGED FACTS, JULIA WAS AT THE TIME OF OTIS' DEATH IN 1951, HIS
STATUTORY "WIDOW," AS THAT TERM IS DESCRIBED BY CONGRESS IN THE
LONGSHOREMEN'S ACT:  "THE TERM 'WIDOW' INCLUDES ONLY THE DECEDENT'S
WIFE LIVING WITH OR DEPENDENT FOR SUPPORT UPON HIM AT THE TIME OF HIS
DEATH; OR LIVING APART FOR JUSTIFIABLE CAUSE OR BY REASON OF HIS
DESERTION AT SUCH TIME," 33 U.S.C. SEC. 902(16).  WE AGREE WITH THE
COURT BELOW THAT SINCE SHE WAS NOT AT THE TIME OF HER HUSBAND'S DEATH
LIVING APART FROM HIM "BY REASON OF HIS DISERTION," SHE WAS NOT A
"WIDOW" WITHIN THE SCOPE OF THIS PROVISION.*  WHATEVER MAY HAVE BEEN
THE SITUATION PRIOR TO HER "MARRIAGE" TO JIMMY FULLER IN 1940, IT IS
CLEAR THAT AFTER THAT DATE SHE LIVED AS THE WIFE OF JIMMY FULLER, HELD
HERSELF OUT AS HIS WIFE, AND HAD SEVERED ALL MEANINGFUL RELATIONSHIP
WITH THE DECEDENT. 

*IT WAS NOT CONTENDED BEFORE US THAT IN THE CIRCUMSTANCES OF THIS
CASE THE PHRASE "FOR JUSTIFIABLE CAUSE" HAS A DIFFERENT REACH THAN THE
PHRASE "BY REASON OF HIS DISERTION." 

WE DO NOT REACH THIS CONCLUSION BY ASSESSING THE MARITAL CONDUCT OF
THE PARTIES.  THAT IS AN INQUIRY WHICH MAY BE RELEVANT TO LEGAL ISSUES
ARISING UNDER STATE DOMESTIC RELATIONS LAW.  OUR CONCERN IS WITH THE
PROPER INTERPRETATION OF THE FEDERAL LONGSHOREMEN'S ACT.  CONGRESS
MIGHT HAVE PROVIDED IN THAT ACT THAT A WOMAN IS ENTITLED TO A
COMPENSATION SO LONG AS SHE IS STILL DEEMED TO BE THE LAWFUL WIFE OF
THE DECEDENT UNDER STATE LAW, AS, FOR EXAMPLE, WHERE A FOREIGN DIVORCE
OBTAINED BY HER IS WITHOUT CONSTITUTIONAL VALIDITY IN THE FORUM STATE. 
BUT CONGRESS DID NOT DO SO.  IT DEFINED THE REQUIREMENTS WHICH EVERY
CLAIMANT FOR COMPENSATION MUST MEET.  CONSIDERING THE PURPOSE OF THIS
FEDERAL LEGISLATION AND THE MANNER IN WHICH CONGRESS HAS EXPRESSED THAT
PURPOSE, THE ESSENTIAL REQUIREMENT IS A CONJUGAL NEXUS BETWEEN THE
CLAIMANT AND THE DECEDENT SUBSISTING AT THE TIME OF THE LATTER'S DEATH,
WHICH, FOR PRESENT PURPOSES, MEANS THAT SHE MUST CONTINUE TO LIVE AS
THE DESERTED WIFE OF THE LATTER.  THAT NEXUS IS WHOLLY ABSENT HERE. 
JULIA HERSELF, BY HER PURPORTED REMARRIAGE, SEVERED THE BOND WHICH WAS
THE BASIS OF HER RIGHT TO CLAIM A DEATH BENEFIT AS OTIS' STATUTORY
DEPENDENT.  THE VERY PRACTICAL CONSIDERATIONS OF THIS COMPENSATION ACT
SHOULD NOT BE SUBORDINATED TO THE EMPTY ABSTRACTION THAT ONCE A WIFE
HAS BEEN DESERTED, SHE ALWAYS REMAINS A DESERTED WIFE, NO MATTER WHAT -
THE NO MATTER WHAT IN THIS CASE BEING THE WIFE'S CONSCIOUS CHOICE TO
TERMINATE HER PRIOR CONJUGAL RELATIONSHIP BY EMBARKING UPON ANOTHER
PERMANENT RELATIONSHIP. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MINTON CONCUR, DISSENTING. 

PETITIONER'S HUSBAND, A LONGSHOREMAN, WAS KILLED IN 1951 ON A JOB
GOVERNED BY THE LONGSHOREMAN'S AND HARBOR WORKERS' COMPENSATION ACT. 
PETITIONER WAS NOT THEN LIVING WITH HER HUSBAND AND HAD NOT DONE SO
SINCE HE DESERTED HER AND THEIR TWO CHILDREN IN 1925.  PETITIONER WENT
THROUGH A MARRIAGE CEREMONY WITH ANOTHER MAN IN 1940 LIVING WITH HIM AS
HIS WIFE UNTIL 1949 WHEN THEY WERE DIVORCED.  OF COURSE THIS MARRIAGE
WAS INVALID AND PETITIONER REMAINED THE WIFE OF HER HUSBAND UNTIL HE
WAS KILLED.  THE COURT NOW HOLDS AS A MATTER OF LAW THAT PETITIONER'S
SECOND "MARRIAGE" AMOUNTS TO A FORFEITURE OF HER RIGHT TO RECOVER
COMPENSATION UNDER THE ACT AS A WIDOW.  IN SO HOLDING, THE COURT
FOLLOWS DECISIONS OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.  (FN1)
THE COURTS OF APPEALS FOR THE SECOND AND NINTH CIRCUITS HAVE HELD TO
THE CONTRARY.  (FN2)  I AGREE WITH THE SECOND AND NINTH CIRCUITS. 

NOT A WORD IN THE COMPENSATION ACT SUGGESTS THAT THE DESERTED WIDOW
OF A DECEASED LONGSHOREMAN AUTOMATICALLY FORFEITS ALL RIGHT TO
STATUTORY COMPENSATION BECAUSE SHE HAS LIVED WITH A MAN OTHER THAN HER
HUSBAND.  WHAT THE ACT ACTUALLY DOES IS TO ENTITLE A WIDOW TO
COMPENSATION IF AT THE TIME OF HER HUSBAND'S DEATH SHE IS EITHER:  (1)
LIVING WITH HIM; (2) DEPENDENT UPON HIM FOR SUPPORT; (3) LIVING APART
FROM HIM FOR JUSTIFIABLE CAUSE; (4) LIVING APART FROM HIM BY REASON OF
HIS DISERTION.  OBVIOUSLY THESE ISSUES CANNOT BE DECIDED WITHOUT
HEARING EVIDENCE AND DETERMINING FACTS.  THE ACT VESTS DEPUTY
COMMISSIONERS, NOT COURTS, WITH POWER "TO HEAR AND DETERMINE ALL
QUESTIONS IN RESPECT TO SUCH CLAIM."  33 U.S.C.  SEC. 919(A).  AND
THEIR FINDINGS OF FACT WHEN SUPPORTED BY SUBSTANTIAL EVIDENCE ARE
CONCLUSIVE ON COURTS.  (FN3) 

HERE THERE WERE ONLY TWO FACTUAL ISSUES PRESENTED TO THE DEPUTY
COMMISSIONER.  WAS THE WIFE LIVING APART FROM HER HUSBAND FOR
"JUSTIFIABLE CAUSE"?  WAS SHE LIVING APART FROM HIM BECAUSE OF HIS
"DESERTION"?  I THINK THERE WAS EVIDENCE BEFORE THE DEPUTY COMMISSIONER
ON WHICH HE COULD HAVE FAIRLY DECIDED THESE QUESTIONS OF FACT EITHER
WAY.  HE MADE FINDINGS AND ENTERED AN ORDER AGAINST THE PETITIONER, BUT
IT IS ADMITTED THAT HE DID SO BECAUSE HE FELT BOUND BY PRIOR HOLDINGS
OF THE FIFTH CIRCUIT THAT AN ATTEMPTED MARRIAGE BY A WIFE BARRED HER
RECOVERY OF COMPENSATION AS A MATTER OF LAW.  THE COURT NOW AFFIRMS THE
JUDGMENT ALTHOUGH THE DEPUTY COMMISSIONER HAS NEVER PASSED ON THE
FACTUAL ISSUES OF WHETHER THE WIFE'S LIVING APART FROM HER HUSBAND WAS
EITHER "JUSTIFIABLE" OR BY REASON OF HIS "DESERTION."  THAT THE COURT
TREATS ITS HOLDING AS ONE OF STATUTORY CONSTRUCTION CANNOT OBSCURE THE
ACTUAL EFFECT OF WHAT IT IS DOING.  THE COURT IS TAKING FROM THE DEPUTY
COMMISSIONERS THEIR CONGRESSIONALLY GRANTED POWER TO DETERMINE FROM ALL
THE FACTS AND CIRCUMSTANCES WHETHER A WIDOW IS ENTITLED TO
COMPENSATION. 

I WOULD REVERSE WITH DIRECTIONS TO REMAND THE CAUSE TO THE DEPUTY
COMMISSIONER TO DETERMINE, FREE FROM JUDICIAL COMPULSION, WHETHER, AS A
FACT, PETITIONER'S LIVING APART WAS FOR "JUSTIFIABLE CAUSE" OR ON
ACCOUNT OF HER HUSBAND'S "DESERTION."  IF EITHER OF THESE ISSUES SHOULD
BE DECIDED IN FAVOR OF THE PETITIONER, SHE IS ENTITLED TO
COMPENSATION. 

FN1  RYAN STEVEDORING CO. V. HENDERSON, 138 F.2D 348; AMERICAN MUTUAL
LIABILITY INS. CO. V. HENDERSON, 141 F.2D 813. 

FN2  ASSOCIATED OPERATING CO. V. LOWE, 138 F.2D 916, AFFIRMING 52 F.
SUPP. 550; MOORE DRY DOCK CO. V. PILLSBURY, 169 F.2D 988. 

FN3  VOEHL V. INDEMNITY INS. CO., 288 U.S. 162, 166; PARKER V. MOTOR
BOAT SALES, INC., 314 U.S. 244, 246; O'LEARY V. BROWN-PACIFIC-MAXON,
INC., 340 U.S. 504, 507-508. 
..END :









MILLER BROTHERS CO. V. MARYLAND 347 U.S. 340 


NO. 160.  ARGUED JANUARY 5, 1954 - DECIDED APRIL 5, 1954 - 201 MD. 535,
95 A.2D 286, REVERSED AND REMANDED. 


A DELAWARE MERCHANDISING CORPORATION SELLS DIRECTLY TO CUSTOMERS AT
ITS STORE IN DELAWARE.  IT DOES NOT ACCEPT MAIL OR TELEPHONE ORDERS,
AND MAKES NO SOLICITATION OF CUSTOMERS OTHER THAN BY NEWSPAPER, RADIO,
AND OCCASIONAL DIRECT MAIL ADVERTISING.  RESIDENTS OF NEARBY MARYLAND
COME TO THE STORE AND MAKE PURCHASES WHICH THEY TAKE AWAY OR WHICH ARE
DELIVERED TO THEM IN MARYLAND BY COMMON CARRIER OR BY THE STORE'S OWN
TRUCK.  MARYLAND LAYS UPON ITS RESIDENTS AN EXCISE TAX ON "THE USE,
STORAGE, OR CONSUMPTION" IN THE STATE OF SUCH ARTICLES, AND IT REQUIRES
EVERY VENDOR TO COLLECT AND REMIT THE TAX TO THE STATE.  THE DELAWARE
STORE DID NOT DO THIS, AND A TRUCK BELONGING TO IT WAS SEIZED IN
MARYLAND AND HELD LIABLE FOR THE USE TAX ON ALL GOODS SOLD TO MARYLAND
RESIDENTS, HOWEVER DELIVERED.  HELD:  THE MARYLAND TAXING ACT, AS
APPLIED TO THIS DELAWARE STORE, VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 341-347. 

(A)  SEIZURE OF PROPERTY BY A STATE UNDER PRETEXT OF TAXATION WHEN
THERE IS NO JURISDICTION OR POWER TO TAX IS CONFISCATION AND A DENIAL
OF DUE PROCESS OF LAW.  P. 342. 

(B)  THE DELAWARE CORPORATION, BY ITS ACTS OR COURSE OF DEALING, HAS
NOT SUBJECTED ITSELF TO THE TAXING POWER OF MARYLAND AND HAS NOT
AFFORDED TO THAT STATE A JURISDICTION OR POWER TO IMPOSE UPON IT A
LIABILITY FOR COLLECTION OF THE MARYLAND TAX.  PP. 344-346. 

(C)  DUE PROCESS REQUIRES SOME DEFINITE LINK, SOME MINIMUM
CONNECTION, BETWEEN A STATE AND THE PERSON, PROPERTY OR TRANSACTION IT
SEEKS TO TAX.  PP. 344-345. 

(D)  MARYLAND COULD NOT HAVE REACHED THIS DELAWARE VENDOR WITH A
SALES TAX ON THESE SALES, AND CANNOT MAKE THEM A BASIS FOR IMPOSING ON
THE VENDOR LIABILITY FOR USE TAXES DUE FROM MARYLAND RESIDENTS.  PP.
345-346. 

(E)  GENERAL TRADING CO. V. STATE TAX COMM'N, 322 U.S. 335,
DISTINGUISHED.  PP. 346-347. 

MILLER BROTHERS CO. V. MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

OPINION OF THE COURT BY MR. JUSTICE JACKSON, ANNOUNCED BY MR. JUSTICE
REED. 

APPELLANT IS A DELAWARE MERCHANDISING CORPORATION WHICH ONLY SELLS
DIRECTLY TO CUSTOMERS AT ITS STORE IN WILMINGTON, DELAWARE.  IT DOES
NOT TAKE ORDERS BY MAIL OR TELEPHONE.  RESIDENTS OF NEARBY MARYLAND
COME TO ITS STORE AND MAKE PURCHASES, SOME OF WHICH THEY CARRY AWAY,
SOME ARE DELIVERED TO THEM IN MARYLAND BY COMMON CARRIER, AND OTHERS BY
APPELLANT'S OWN TRUCK.  MARYLAND LAYS UPON ITS RESIDENTS AN EXCISE TAX
ON "THE USE, STORAGE OR CONSUMPTION" IN THE STATE OF SUCH ARTICLES,
(FN1) AND IT REQUIRES EVERY VENDOR TO COLLECT AND REMIT THE TAX TO THE
STATE.  (FN2)  THIS THE APPELLANT DID NOT DO.  FINDING APPELLANT'S
TRUCK IN MARYLAND, THE STATE SEIZED IT, AND THE STATE'S HIGHEST COURT
HAS HELD IT LIABLE FOR THE USE TAX ON ALL GOODS SOLD IN THE DELAWARE
STORE TO MARYLAND RESIDENTS, HOWEVER DELIVERED.  (FN3)  THIS WAS
AGAINST APPELLANT'S TIMELY CONTENTION THAT THE MARYLAND TAXING ACT, SO
CONSTRUED, CONFLICTS WITH THE FEDERAL COMMERCE POWER AND ATTEMPTS TO
EXTEND THE POWER OF THE STATE BEYOND ITS BORDERS IN VIOLATION OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE PARTIES HAVE
STIPULATED FACTS IN DETAIL, AND, SO FAR AS THEY SEEM IMPORTANT, WE SET
THEM FORTH IN THE APPENDIX.  (FN4) 

THE GROUNDS ADVANCED BY MARYLAND FOR HOLDING THE DELAWARE VENDOR
LIABLE COME TO THIS:  (1) THE VENDOR'S ADVERTISING WITH DELAWARE PAPERS
AND RADIO STATIONS, THOUGH NOT ESPECIALLY DIRECTED TO MARYLAND
INHABITANTS, REACHED, AND WAS KNOWN TO REACH, THEIR NOTICE; (2) ITS
OCCASIONAL SALES CIRCULARS MAILED TO ALL FORMER CUSTOMERS INCLUDED
CUSTOMERS IN MARYLAND; (3) IT DELIVERED SOME PURCHASES TO COMMON
CARRIERS CONSIGNED TO MARYLAND ADDRESSES; (4) IT DELIVERED OTHER
PURCHASES BY ITS OWN VEHICLES TO MARYLAND LOCATIONS.  THE QUESTION IS
WHETHER THESE FACTORS, SEPARATELY OR IN THE AGGREGATE, IN EACH OR ALL
OF THE ABOVE TYPES OF SALES, ESTABLISH A STATE'S POWER TO IMPOSE A DUTY
UPON SUCH AN OUT-OF-STATE MERCHANT TO COLLECT AND REMIT A PURCHASER'S
USE TAX. 

IT IS A VENERABLE IF TRITE OBSERVATION THAT SEIZURE OF PROPERTY BY
THE STATE UNDER PRETEXT OF TAXATION WHEN THERE IS NO JURISDICTION OR
POWER TO TAX IS SIMPLE CONFISCATION AND A DENIAL OF DUE PROCESS OF
LAW.  "NO PRINCIPLE IS BETTER SETTLED THAN THAT THE POWER OF A STATE,
EVEN ITS POWER OF TAXATION, IN RESPECT TO PROPERTY, IS LIMITED TO SUCH
AS IS WITHIN ITS JURISDICTION."  NEW YORK, L.E.&W.R. CO. V.
PENNSYLVANIA, 153 U.S. 628, 646.  "WHERE THERE IS JURISDICTION NEITHER
AS TO PERSON NOR PROPERTY, THE IMPOSITION OF A TAX WOULD BE ULTRA VIRES
AND VOID.  IF THE LEGISLATURE OF A STATE SHOULD ENACT THAT THE CITIZENS
OR PROPERTY OF ANOTHER STATE OR COUNTRY SHOULD BE TAXED IN THE SAME
MANNER AS THE PERSONS AND PROPERTY WITHIN ITS OWN LIMITS AND SUBJECT TO
ITS AUTHORITY, OR IN ANY OTHER MANNER WHATSOEVER, SUCH A LAW WOULD BE
AS MUCH A NULLITY AS IF IN CONFLICT WITH THE MOST EXPLICIT
CONSTITUTIONAL INHIBITION.  JURISDICTION IS AS NECESSARY TO VALID
LEGISLATIVE AS TO VALID JUDICIAL ACTION."  ST. LOUIS V. FERRY CO., 11
WALL.  423, 430. 

BUT VISIBLE TERRITORIAL BOUNDARIES DO NOT ALWAYS ESTABLISH THE LIMITS
OF A STATE'S TAXING POWER OR JURISDICTION.  IN THE LAST TWENTY YEARS,
REVENUE NEEDS HAVE COME TO EXCEED THE DEMANDS THAT LEGISLATURES FEEL IT
EXPEDIENT TO MAKE UPON ACCUMULATED WEALTH OR PROPERTY WITH FIXED
LOCATION WITHIN THE STATE.  THE STATES THEREFORE HAVE TURNED TO TAXING
ACTIVITIES CONNECTED WITH THE MOVEMENT OF COMMERCE, SUCH AS EXCHANGE
AND CONSUMPTION.  IF THERE IS SOME JURISDICTIONAL FACT OR EVENT TO
SERVE AS A CONDUCTOR, THE REACH OF THE STATE'S TAXING POWER MAY BE
CARRIED TO OBJECTS OF TAXATION BEYOND ITS BORDERS.  WHEN IT HAS THE
TAXPAYER WITHIN ITS POWER OR JURISDICTION, IT MAY SOMETIMES, THROUGH
HIM, REACH HIS EXTRATERRITORIAL INCOME OR TRANSACTIONS.  ON THE OTHER
HAND, IF IT HAS JURISDICTION OF HIS TAXABLE PROPERTY OR TRANSACTIONS,
IT MAY SOMETIMES, THROUGH THESE, REACH THE NONRESIDENT.  WHETHER THIS
IS ONE OF THESE CASES WE MUST INQUIRE. 

WE ARE DEALING WITH A RELATIVELY NEW AND EXPERIMENTAL FORM OF
TAXATION.  (FN5)  TAXATION OF SALES OR PURCHASES AND TAXATION OF USE OR
POSSESSION OF PURCHASES ARE COMPLEMENTARY AND RELATED BUT SERVE VERY
DIFFERENT PURPOSES.  THE FORMER, A FISCAL MEASURE OF CONSIDERABLE
IMPORTANCE, HAS THE EFFECT OF INCREASING THE COST TO THE CONSUMER OF
ACQUIRING SUPPLIES IN THE TAXING STATE.  THE USE TAX, NOT IN ITSELF A
RELATIVELY SIGNIFICANT REVENUE PRODUCER, (FN6) USUALLY APPEARS AS A
SUPPORT TO THE SALES TAX IN TWO RESPECTS.  ONE IS PROTECTION OF THE
STATE'S REVENUES BY TAKING AWAY FROM INHABITANTS THE ADVANTAGES OF
RESORT TO UNTAXED OUT-OF-STATE PURCHASES.  THE OTHER IS PROTECTION OF
LOCAL MERCHANTS AGAINST OUT-OF-STATE COMPETITION FROM THOSE WHO MAY BE
ENABLED BY LOWER TAX BURDENS TO OFFER LOWER PRICES.  IN THIS RESPECT,
THE USE TAX HAS THE SAME EFFECT AS A PROTECTIVE TARIFF BECOMING DUE NOT
ON PURCHASE OF THE GOODS BUT AT THE MOMENT OF BRINGING THEM INTO THE
TAXING STATES.  (FN7)  THE COLLECTION OF THE USE TAX FROM INHABITANTS
IS A DIFFICULT ADMINISTRATIVE PROBLEM, AND IF OUT-OF-STATE VENDORS CAN
BE COMPELLED TO COLLECT IT AND REMIT IT TO THE TAXING STATE, IT
SIMPLIFIES ADMINISTRATION.  BUT THIS RAISES QUESTIONS OF GREAT
IMPORTANCE TO PARTICULAR TAXPAYERS, TO THE COURSE OF COMMERCIAL DEALING
AMONG THE STATES AND AS TO APPROPRIATION BY OTHER STATES OF TAX
RESOURCES PROPERLY BELONGING TO THE STATE WHERE THE EVENT OCCURS. 

THE PRACTICAL AND LEGAL EFFECT OF THE MARYLAND STATUTE AS IT HAS BEEN
APPLIED TO THIS DELAWARE VENDOR IS TO MAKE THE VENDOR LIABLE FOR A USE
TAX DUE FROM THE PURCHASER.  IN ECONOMIC CONSEQUENCE, IT IS IDENTICAL
WITH MAKING HIM PAY A SALES TAX.  THE LIABILITY ARISES ONLY BECAUSE OF
A DELAWARE SALE AND IS MEASURED BY ITS PROCEEDS.  BUT AT THE TIME OF
THE SALE, NO ONE IS LIABLE FOR A MARYLAND USE TAX.  THE LIABILITY
ARISES ONLY UPON IMPORTATION OF THE MERCHANDISE TO THE TAXING STATE, AN
EVENT WHICH OCCURS AFTER THE SALE IS COMPLETE AND ONE AS TO WHICH THE
VENDOR MAY HAVE NO CONTROL OR EVEN KNOWLEDGE, AT LEAST AS TO
MERCHANDISE CARRIED AWAY BY THE BUYER.  THE CONSEQUENCE IS THAT
LIABILITY AGAINST THE DELAWARE VENDOR IS PREDICATED UPON USE OF THE
GOODS IN ANOTHER STATE AND BY ANOTHER PERSON.  WE DO NOT UNDERSTAND THE
STATE TO CONTEND THAT IT COULD LAY A USE TAX UPON MERE POSSESSION OF
GOODS IN TRANSIT BY A CARRIER OR VENDOR UPON ENTERING THE STATE, NOR DO
WE SEE HOW SUCH A TAX COULD BE CONSISTENT WITH THE COMMERCE CLAUSE. 

THE QUESTION HERE IS WHETHER THIS VENDOR, BY ITS ACTS OR COURSE OF
DEALING, HAS SUBJECTED ITSELF TO THE TAXING POWER OF MARYLAND OR
WHETHER IT HAS AFFORDED THAT STATE A JURISDICTION OR POWER TO CREATE
THIS COLLECTOR'S LIABILITY.  DESPITE THE INCREASING FREQUENCY WITH
WHICH THE QUESTION ARISES, LITTLE CONSTRUCTIVE DISCUSSION CAN BE FOUND
IN RESPONSIBLE COMMENTARY AS TO THE GROUNDS ON WHICH TO REST A STATE'S
POWER TO REACH EXTRATERRITORIAL TRANSACTIONS OR NONRESIDENTS WITH TAX
LIABILITIES.  OUR DECISIONS ARE NOT ALWAYS CLEAR AS TO THE GROUNDS ON
WHICH A TAX IS SUPPORTED, ESPECIALLY WHERE MORE THAN ONE EXISTS; NOR
ARE ALL OF OUR PRONOUNCEMENTS DURING THE EXPERIMENTAL PERIOD OF THIS
TYPE OF TAXATION CONSISTENT OR RECONCILABLE.  A FEW HAVE BEEN
SPECIFICALLY OVERRULED, WHILE OTHERS NO LONGER FULLY REPRESENT THE
PRESENT STATE OF THE LAW.  BUT THE COURSE OF DECISIONS DOES REFLECT AT
LEAST CONSISTENT ADHERENCE TO ONE TIME-HONORED CONCEPT:  THAT DUE
PROCESS REQUIRES SOME DEFINITE LINK, SOME MINIMUM CONNECTION, BETWEEN A
STATE AND THE PERSON, PROPERTY OR TRANSACTION IT SEEKS TO TAX. 

THUS, THE COURT HAS FREQUENTLY HELD THAT DOMICILE OR RESIDENCE, MORE
SUBSTANTIAL THAN MERE PRESENCE IN TRANSIT OR SOJOURN, IS AN ADEQUATE
BASIS FOR TAXATION, INCLUDING INCOME, (FN8) PROPERTY, (FN9) AND DEATH
(FN10) TAXES.  SINCE THE FOURTEENTH AMENDMENT MAKES ONE A CITIZEN OF
THE STATE WHEREIN HE RESIDES, THE FACT OF RESIDENCE CREATES UNIVERSALLY
RECOGNIZED RECIPROCAL DUTIES OF PROTECTION BY THE STATE AND OF
ALLEGIANCE AND SUPPORT BY THE CITIZEN.  THE LATTER OBVIOUSLY INCLUDES A
DUTY TO PAY TAXES, AND THEIR NATURE AND MEASURE IS LARGELY A POLITICAL
MATTER.  OF COURSE, THE SITUS OF PROPERTY MAY TAX IT REGARDLESS OF THE
CITIZENSHIP, DOMICILE OR RESIDENCE OF THE OWNER, THE MOST OBVIOUS
ILLUSTRATION BEING A TAX ON REALTY LAID BY THE STATE IN WHICH THE
REALTY IS LOCATED.  (FN11)  ALSO, THE KEEPING OF TANGIBLE (FN12) OR
INTANGIBLE (FN13) PERSONALTY WITHIN A STATE MAY GIVE IT A SIMILAR
TAXABLE SITUS THERE (SOMETIMES CALLED A BUSINESS OR COMMERCIAL SITUS OR
DOMICILE).  CERTAIN ACTIVITIES OR TRANSACTIONS CARRIED ON WITHIN A
STATE, SUCH AS THE USE (FN14) AND SALE (FN15) OF PROPERTY, MAY GIVE
JURISDICTION TO TAX WHOMSOEVER ENGAGES THEREIN, AND THE USE OF HIGHWAYS
MAY SUBJECT THE USE TO CERTAIN TYPES OF TAXATION.  (FN16)  THESE CASES
OVERLAP WITH THOSE IN WHICH INCORPORATION BY A STATE (FN17) OR
PERMISSION TO DO BUSINESS THERE (FN18) FORMS THE BASIS FOR
PROPORTIONATE TAXATION OF A COMPANY, INCLUDING ITS FRANCHISE, CAPITAL,
INCOME AND PROPERTY.  RECENT CASES IN WHICH A TAXABLE SALE DOES NOT
CLEARLY TAKE PLACE WITHIN THE TAXING STATE, ELEMENTS OF THE TRANSACTION
OCCURRING IN DIFFERENT STATES, HAVE PRESENTED PECULIAR DIFFICULTIES,
(FN19) AS HAVE THOSE WHERE THE PARTY LIABLE FOR A USE TAX DOES NOT USE
THE PRODUCT WITHIN THE TAXING STATE.  (FN20)

WE ARE UNABLE TO FIND IN ANY OF OUR CASES A PRECEDENT FOR SUSTAINING
THE LIABILITY ASSERTED BY MARYLAND HERE.  IN ACCORDANCE WITH THE
PRINCIPLES OF EARLIER CASES, IT WAS RECENTLY SETTLED THAT MARYLAND
COULD NOT HAVE REACHED THIS DELAWARE VENDOR WITH A SALES TAX ON THESE
SALES.  MCLEOD V. DILWORTH CO., 322 U.S. 327.  CAN SHE THEN MAKE THE
SAME DELAWARE SALES A BASIS FOR IMPOSING ON THE VENDOR LIABILITY FOR
USE TAXES DUE FROM HER OWN INHABITANTS?  IT WOULD BE A STRANGE LAW THAT
WOULD MAKE APPELLANT MORE VULNERABLE TO LIABILITY FOR ANOTHER'S TAX
THAN TO A TAX ON ITSELF. 

THE DECISIONS RELIED UPON BY MARYLAND DO NOT, IN OUR VIEW, SUPPORT
HER.  THIS IS NOT THE CASE OF A MERCHANT ENTERING A STATE TO MAINTAIN A
BRANCH AND ENGAGING IN ADMITTEDLY TAXABLE RETAIL BUSINESS BUT TRYING TO
ALLOCATE SOME PART OF HIS TOTAL SALES TO NONTAXABLE INTERSTATE
COMMERCE.  UNDER THESE CIRCUMSTANCES, THE STATE HAS JURISDICTION TO TAX
THE TAXPAYER, AND ALL THAT HE CAN QUESTION ON DUE PROCESS OR COMMERCE
CLAUSE GROUNDS IS THE VALIDITY OF THE ALLOCATION.  CF. NELSON V.
MONTGOMERY WARD & CO., 312 U.S. 373; NELSON V. SEARS, ROEBUCK & CO.,
312 U.S. 359; NORTON CO. V. DEPARTMENT OF REVENUE, 340 U.S. 534. 

THE NEAREST SUPPORT FOR MARYLAND'S POSITION IS GENERAL TRADING CO. V.
STATE TAX COMM'N, 322 U.S. 335.  THE WRITER OF THIS OPINION DISSENTED
IN THAT CASE AND, WHETHER OR NOT IN SO DOING HE MADE A CORRECT
APPLICATION OF PRINCIPLES OF JURISDICTION TO THE PARTICULAR FACTS, IT
IS CLEAR THAT CIRCUMSTANCES ABSENT HERE WERE THERE PRESENT TO JUSTIFY
THE COURT'S APPROVAL OF LIABILITY FOR COLLECTING THE TAX.  THAT WAS THE
CASE OF AN OUT-OF-STATE MERCHANT ENTERING THE TAXING STATE THROUGH
TRAVELING SALES AGENTS TO CONDUCT CONTINUOUS LOCAL SOLICITATION
FOLLOWED BY DELIVERY OF ORDERED GOODS TO THE CUSTOMERS, THE ONLY
NONLOCAL PHASE OF THE TOTAL SALE BEING ACCEPTANCE OF THE ORDER. 
PROBABLY, EXCEPT FOR CREDIT REASONS, ACCEPTANCE WAS A MERE FORMALITY,
SINCE ONE HARDLY INCURS THE COST OF SOLICITING ORDERS TO REJECT.  THE
COURT COULD PROPERLY APPROVE THE STATE'S DECISION TO REGARD SUCH A
RIVALRY WITH ITS LOCAL MERCHANTS AS EQUIVALENT TO BEING A LOCAL
MERCHANT.  BUT THERE IS A WIDE GULF BETWEEN THIS TYPE OF ACTIVE AND
AGGRESSIVE OPERATION WITHIN A TAXING STATE AND THE OCCASIONAL DELIVERY
OF GOODS SOLD AT AN OUT-OF-STATE STORE WITH NO SOLICITATION OTHER THAN
THE INCIDENTAL EFFECTS OF GENERAL ADVERTISING.  HERE WAS NO INVASION OR
EXPLOITATION OF THE CONSUMER MARKET IN MARYLAND.  ON THE CONTRARY,
THESE SALES RESULTED FROM PURCHASERS TRAVELING FROM MARYLAND TO
DELAWARE TO EXPLOIT ITS LESS TAX-BURDENED SELLING MARKET.  THAT THESE
INHABITANTS INCURRED A LIABILITY FOR THE USE TAX WHEN THEY USED, STORED
OR CONSUMED THE GOODS IN MARYLAND, NO ONE DOUBTS.  BUT THE BURDEN OF
COLLECTING OR PAYING THEIR TAX CANNOT BE SHIFTED TO A FOREIGN MERCHANT
IN THE ABSENCE OF SOME JURISDICTIONAL BASIS NOT PRESENT HERE. 

IN THIS VIEW OF THE CASE, WE NEED NOT CONSIDER WHETHER THE STATUTE
IMPOSES AN UNJUSTIFIABLE BURDEN UPON INTERSTATE COMMERCE. 

THE JUDGMENT APPEALED FROM IS REVERSED AND THE CASE REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT HEREWITH.  REVERSED AND REMANDED. 

FOR DISSENTING OPINION, SEE POST, P. 357. 

                        APPENDIX TO OPINION OF THE COURT. 

FN1  THE STATUTE READS:  "AN EXCISE TAX IS HEREBY LEVIED AND IMPOSED
ON THE USE, STORAGE OR CONSUMPTION IN THIS STATE OF TANGIBLE PERSONAL
PROPERTY PURCHASED FROM A VENDOR WITHIN OR WITHOUT THIS STATE ON OR
AFTER THE EFFECTIVE DATE OF THIS ACT, FOR USE, STORAGE OR CONSUMPTION
WITHIN THIS STATE.  THE TAX IMPOSED BY THIS SECTION SHALL BE PAID BY
THE PURCHASER AND SHALL BE COMPUTED AS FOLLOWS:  ...  ."  FLACK'S MD.
ANN. CODE, 1951, ART. 81, SEC. 369.    FN2  "EVERY VENDOR ENGAGING IN
BUSINESS IN THIS STATE AND MAKING SALES OF TANGIBLE PERSONAL PROPERTY
FOR USE, STORAGE, OR CONSUMPTION IN THIS STATE WHICH ARE TAXABLE UNDER
THE PROVISIONS OF THIS SUB-TITLE, AT THE TIME OF MAKING SUCH SALES, OR
IF THE USE, STORAGE OR CONSUMPTION IS NOT THEN TAXABLE HEREUNDER, AT
THE TIME WHEN SUCH USE, STORAGE OR CONSUMPTION BECOMES TAXABLE
HEREUNDER, SHALL COLLECT THE TAX IMPOSED BY THIS SUB-TITLE FROM THE
PURCHASER."  FLACK'S MD. ANN. CODE, 1951, ART. 81, SEC. 371. 

"AS USED IN THIS SUB-TITLE, THE FOLLOWING TERMS SHALL MEAN OR
INCLUDE:           *         *         *         *  * 

"(K)  'ENGAGED IN BUSINESS IN THIS STATE' MEANS THE SELLING OR
DELIVERING IN THIS STATE, OR ANY ACTIVITY IN THIS STATE IN CONNECTION
WITH THE SELLING OR DELIVERING IN THIS STATE, OF TANGIBLE PERSONAL
PROPERTY FOR USE, STORAGE OR CONSUMPTION WITHIN THIS STATE.  THIS TERM
SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO THE FOLLOWING ACTS OR
METHODS OF TRANSACTING BUSINESS. 

"(1)  THE MAINTAINING, OCCUPYING OR USING, PERMANENTLY OR
TEMPORARILY, DIRECTLY OR INDIRECTLY, OR THROUGH A SUBSIDIARY OR AGENT,
BY WHATEVER NAME CALLED, OR ANY OFFICE, PLACE OF DISTRIBUTION, SALES OR
SAMPLE ROOM OR PLACE, WAREHOUSE OR STORAGE PLACE, OR OTHER PLACE OF
BUSINESS. 

"(2)  THE HAVING OF ANY REPRESENTATIVE, AGENT, SALESMAN, CANVASSER,
OR SOLICITOR OPERATING IN THIS STATE FOR THE PURPOSE OF SELLING,
DELIVERING, OR THE TAKING OF ORDERS FOR ANY TANGIBLE PERSONAL
PROPERTY."  FLACK'S MD. ANN. CODE, ART. 81, SEC. 368. 

"EVERY VENDOR REQUIRED OR PERMITTED TO COLLECT THE TAX SHALL COLLECT
THE TAX IMPOSED BY THE PROVISION OF THIS SUB-TITLE, NOTWITHSTANDING THE
FOLLOWING: 

"(A)  THAT THE PURCHASER'S ORDER OR THE CONTRACT OF SALE IS
DELIVERED, MAILED, OR OTHERWISE TRANSMITTED BY THE PURCHASER TO THE
VENDOR AT A POINT OUTSIDE OF THIS STATE AS A RESULT OF SOLICITATION BY
THE VENDOR THROUGH THE MEDIUM OF A CATALOG OR OTHER WRITTEN
ADVERTISEMENT; OR: 

"(B)  THAT THE PURCHASER'S ORDER OR CONTRACT OF SALE MADE OR CLOSED
BY ACCEPTANCE OR APPROVAL OUTSIDE OF THIS STATE OR BEFORE SAID TANGIBLE
PERSONAL PROPERTY ENTERS THIS STATE; OR: 

"(C)  THAT THE PURCHASER'S ORDER OR CONTRACT OF SALE PROVIDES THAT
SAID PROPERTY SHALL BE, OR IT IS IN FACT, PROCURED OR MANUFACTURED AT A
POINT OUTSIDE OF THIS STATE AND SHIPPED DIRECTLY TO THE PURCHASER FROM
THE POINT OF ORIGIN; OR: 

"(D)  THAT SAID PROPERTY IS MAILED TO THE PURCHASER IN THIS STATE
FROM A POINT OUTSIDE THIS STATE OR DELIVERED TO A CARRIER AT A POINT
OUTSIDE THIS STATE, F.O.B., OR OTHERWISE, AND DIRECTED TO THE VENDOR IN
THIS STATE, REGARDLESS OF WHETHER THE COST OF TRANSPORTATION IS PAID BY
THE VENDOR OR BY THE PURCHASER; OR: 

"(E)  THAT SAID PROPERTY IS DELIVERED DIRECTLY TO THE PURCHASER AT A
POINT OUTSIDE THIS STATE, IF IT IS INTENDED TO BE BROUGHT TO THIS STATE
FOR USE, STORAGE OR CONSUMPTION IN THIS STATE."  FLACK'S MD. ANN. CODE,
ART. 81, SEC. 373. 

"THE VENDOR AND ANY OTHER OFFICER OF ANY CORPORATE VENDOR REQUIRED OR
PERMITTED TO COLLECT THE TAX IMPOSED BY THIS SUB-TITLE SHALL BE
PERSONALLY LIABLE FOR THE TAX COLLECTED, AND SUCH VENDOR SHALL HAVE THE
SAME RIGHT IN RESPECT TO COLLECTING THE TAX FROM THE PURCHASER, OR IN
RESPECT TO NON-PAYMENT OF THE TAX BY THE PURCHASER, AS IF THE TAX WERE
A PART OF THE PURCHASE PRICE OF THE PROPERTY AND PAYABLE AT THE TIME OF
THE SALE.  ANY VENDOR WHO FAILS TO COLLECT THE TAX PURSUANT TO THIS SUB
TITLE AND THE REGULATIONS PRESCRIBED HEREUNDER SHALL, IN ADDITION TO
ALL OTHER PENALTIES, BE PERSONALLY LIABLE TO THE STATE FOR THE AMOUNT
UNCOLLECTED."  FLACK'S MD. ANN. CODE, 1951, ART. 81, SEC. 375. 

FN3  MILLER BROTHERS CO. V. MARYLAND, 201 MD. 535, 95 A.2D 286. 

FN4  "IT IS HEREBY STIPULATED AND AGREED BY AND BETWEEN THE ATTORNEYS
FOR THE ABOVE NAMED PARTIES AND ON THEIR BEHALF THAT: 

"1.  DEFENDANT, MILLER BROTHERS COMPANY, IS A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE WITH ITS PRINCIPAL
PLACE OF BUSINESS AT NINTH AND KING STREETS, WILMINGTON, DELAWARE.  IT
HAS NO RESIDENT AGENT IN MARYLAND. 

"2.  DEFENDANT IS AND FOR ALL TIMES MATERIAL TO THIS SUIT HAS BEEN
ENGAGED IN THE RETAIL HOUSEHOLD FURNITURE BUSINESS BY SELLING ITS
MERCHANDISE FROM ITS ONLY RETAIL STORE LOCATED IN WILMINGTON,
DELAWARE. 

"3.  THE ONLY METHODS OF ADVERTISING USED BY THE DEFENDANT ARE THE
FOLLOWING: 

"(A)  RADIO AND TELEVISION.  THE DEFENDANT HAS ENGAGED IN NO RADIO OR
TELEVISION ADVERTISING OF ANY SORT, ANYWHERE, SINCE JANUARY 1, 1951. 
PRIOR TO THAT DATE, THE DEFENDANT HAD LIMITED RADIO ADVERTISING OVER
THE WILMINGTON, DELAWARE, STATIONS.  IN THE FALL OF 1950, FOR A PERIOD
OF ABOUT SIX WEEKS, THE DEFENDANT HAD A SMALL AMOUNT OF TELEVISION
ADVERTISING OVER STATION WDEL-TV IN CONNECTION WITH THE BROADCASTING OF
FOOTBALL SCORES.  THE FACILITIES OF THOSE STATIONS ARE LOCATED IN
DELAWARE ENTIRELY.  IN THE RADIO AND TELEVISION ADVERTISING THE
DEFENDANT HAS NEVER HAD ANY SCRIPT OR COPY WHICH MADE AN APPEAL FOR OUT
OF-STATE BUSINESS OR IN ANY WAY WAS DESIGNED DIRECTLY OR INDIRECTLY TO
APPEAL PARTICULARLY TO MARYLAND RESIDENTS.  THE RADIO SLOGAN ADOPTED BY
THE DEFENDANT WAS 'FURNITURE FASHION MAKERS FOR DELAWARE'. 

"(B)  NEWSPAPERS.  THE DEFENDANT ADVERTISES REGULARLY IN THE
WILMINGTON MORNING NEWS AND THE WILMINGTON JOURNAL EVERY EVENING.  IT
ALSO ADVERTISES OCCASIONALLY IN THE WILMINGTON SUNDAY STAR.  ALL OF
THESE NEWSPAPERS ARE PUBLISHED IN WILMINGTON AND UNDOUBTEDLY HAVE SOME
CIRCULATION IN SOME PORTIONS OF MARYLAND.  THE VOLUME OF SUCH
CIRCULATION IS UNKNOWN TO EITHER THE PLAINTIFF OR THE DEFENDANT.  IN
ITS NEWSPAPER ADVERTISING THE DEFENDANT HAS NEVER USED ADVERTISING COPY
WHICH MENTIONS MARYLAND CUSTOMERS OR IS PREPARED FOR THE PURPOSE OF
DIRECTLY OR INDIRECTLY MAKING ANY SPECIAL APPEAL TO THE MARYLAND
CUSTOMERS.  NO ADVERTISING HAS EVER BEEN DONE BY THE DEFENDANT IN ANY
NEWSPAPERS PUBLISHED IN MARYLAND. 

"(C)  USE OF THE MAILS.  THE DEFENDANT USES AN AUTOMATIC CARD MAILING
SYSTEM AND WITH THIS SYSTEM DISTRIBUTES ABOUT FOUR PIECES A YEAR. 
THESE MAILING PIECES GO OUT TO EVERYONE WHO HAS PURCHASED FROM THE
DEFENDANT AND WHOSE NAME AND ADDRESS IS ON THE DEFENDANT'S RECORDS. 
THIS MEANS THAT MARYLAND RESIDENTS DO RECEIVE THESE MAILING PIECES, BUT
NO SPECIFIC ADVERTISING COPY HAS EVER BEEN SENT THROUGH THE MAILS FOR
THE SPECIFIC PURPOSE OF ATTRACTING MARYLAND BUYERS.  NO ADVERTISING
COPY HAS BEEN SENT TO MARYLAND BUYERS ALONE AND THE ONLY ADVERTISING
COPY WHICH THESE MARYLAND BUYERS RECEIVE IS THAT WHICH IS SENT TO ALL
CUSTOMERS WHOSE NAMES AND ADDRESSES ARE ON THE RECORDS. 

"4.  DEFENDANT HAS MADE AND DOES MAKE CERTAIN SALES OF TANGIBLE
PERSONAL PROPERTY, SOME OF WHICH SALES BEING THE SUBJECT MATTER OF THIS
ACTION, TO RESIDENTS OF THE STATE OF MARYLAND, WHO HAVE USED, CONSUMED
OR STORED OR WILL USE, CONSUME OR STORE THE PURCHASED PERSONAL PROPERTY
IN THE STATE OF MARYLAND. 

"5.  THE TRANSACTIONS BETWEEN THE DEFENDANT AND THE SAID MARYLAND
PURCHASERS ARE AND HAVE BEEN AS FOLLOWS: 

"(A)  IT IS THE DEFENDANT'S POLICY NEVER TO ACCEPT TELEPHONE ORDERS. 
MOST OF THE MERCHANDISE SOLD BY THE DEFENDANT REQUIRES PERSONAL
INSPECTION AND SELECTION, AND IT IS FOR THIS REASON THAT TELEPHONE
ORDERS ARE REFUSED.  THE DEFENDANT MAINTAINS NO MAIL-ORDER BUSINESS AND
DOES NOT MAKE USE OF COUPONS IN CONNECTION WITH ITS NEWSPAPER
ADVERTISING. 

"(B)  THE PURCHASER APPEARS AT DEFENDANT'S RETAIL STORE, LOCATED IN
WILMINGTON, DELAWARE.  IN ABOUT THIRTY PER CENT (30%) OF THE SALES THE
EXACT ITEM SELECTED BY THE CUSTOMER IS TAGGED IN THE STORE AND THAT
SAME ITEM IS DELIVERED TO THE CUSTOMER FROM THE STORE, IN WILMINGTON,
DELAWARE.  IN THE REMAINDER OF THE SALES, AN ITEM IDENTICAL TO THAT
SELECTED BY THE CUSTOMER IS DELIVERED FROM THE DEFENDANT'S STOREROOM OR
WAREHOUSE IN WILMINGTON, DELAWARE. 

"(C)  DELIVERY IS MADE IN ONE OF THREE WAYS AND NO OTHER: 

"(1)  THE ARTICLE IS TAKEN AWAY BY THE PURCHASER.  WITHIN THE TAXABLE
PERIOD OF JULY 1, 1947, THROUGH DECEMBER 31, 1951, TANGIBLE PERSONAL
PROPERTY SOLD FOR AT LEAST $2,500 WAS DELIVERED IN THIS MANNER. 

"(2)  THE ARTICLE IS DELIVERED IN MARYLAND TO THE PURCHASER IN A
MOTOR VEHICLE OWNED AND OPERATED BY DEFENDANT, DIRECTLY FROM
DEFENDANT'S STORE IN WILMINGTON, DELAWARE, TO THE RESIDENCE OF THE
MARYLAND PURCHASER.  THE COST OF THE DELIVERY IN SUCH A CASE IS BORNE
BY DEFENDANT AND NO CHARGE THEREFOR IS MADE TO THE PURCHASER.  WITHIN
THE TAXABLE PERIOD JULY 1, 1947, THROUGH DECEMBER 31, 1951, TANGIBLE
PERSONAL PROPERTY SOLD FOR AT LEAST $8,000 WAS DELIVERED IN THIS
MANNER. 

"(3)  THE ARTICLE IS DELIVERED IN MARYLAND TO THE PURCHASER BY COMMON
CARRIER TO WHICH DELIVERY IS MADE BY DEFENDANT IN WILMINGTON,
DELAWARE.  SUCH COMMON CARRIER IS USUALLY AN INDEPENDENT TRUCKING LINE
AUTHORIZED TO DO BUSINESS AS A COMMERCIAL CARRIER BY THE INTERSTATE
COMMERCE COMMISSION.  THE COST OF THE DELIVERY IN SUCH A CASE IS BORNE
BY THE DEFENDANT AND NO CHARGE THEREFOR IS MADE TO THE PURCHASER. 
WITHIN THE TAXABLE PERIOD JULY 1, 1947, THROUGH DECEMBER 31, 1951,
TANGIBLE PERSONAL PROPERTY SOLD FOR AT LEAST $1,500 WAS DELIVERED IN
THIS MANNER. 

"6.  (A)  PAYMENT FOR SOME PURCHASES IS COMPLETED AT THE TIME THE
PURCHASER APPEARS AT THE DEFENDANT'S RETAIL STORE AND PRIOR TO THE
DELIVERY. 

"(B)  THE DEFENDANT DOES MAKE SALES TO SOME MARYLAND RESIDENTS ON
CREDIT IN EXACTLY THE SAME WAY AS IT SELLS TO DELAWARE RESIDENTS ON
CREDIT.  IN THE CASE OF MOST OF SUCH CREDIT SALES TO MARYLAND
CUSTOMERS, THE DEFENDANT ENTERS INTO CONDITIONAL SALES CONTRACTS WITH
ITS MARYLAND CUSTOMERS IN THE SAME DAY THAT IT ENTERS INTO CONDITIONAL
SALES CONTRACTS WITH ITS DELAWARE CUSTOMERS.  IN MANY OTHER INSTANCES,
THE DEFENDANT NOTES THE TERMS OF THE CREDIT TRANSACTION ON THE SALES
SLIP WITHOUT REQUIRING A CONDITIONAL SALES AGREEMENT, AND THIS METHOD
OF BUSINESS IS USED WITHOUT ANY DISTINCTION BETWEEN MARYLAND AND
DELAWARE CUSTOMERS.  THIS METHOD IS FREQUENTLY DESIGNATED AS A 60 OR 90
DAY CHARGE ACCOUNT.  AT NO TIME WITHIN THE PAST EIGHT YEARS HAS THE
DEFENDANT EVER RECORDED ITS CONDITIONAL SALES CONTRACTS IN MARYLAND. 

"(C)  THE DEFENDANT HAS NEVER REPOSSESSED BY LEGAL PROCESS ANY
FURNITURE OR OTHER MERCHANDISE FOR ANY CUSTOMERS IN MARYLAND OR
ELSEWHERE WITHIN THE LAST FIFTEEN YEARS.  THE DEFENDANT HAS ON OCCASION
ACCEPTED BACK MERCHANDISE WHICH HAS NOT BEEN SATISFACTORY TO THE
CUSTOMER.  IN THE EVENT OF DELINQUENCY IN PAYMENTS, THE DEFENDANT USES
COLLECTION LETTERS, WHICH ARE SENT THROUGH THE MAILS.  DURING THE PAST
TEN YEARS THE DEFENDANT HAS NEVER INSTITUTED LEGAL ACTION THROUGH A
MAGISTRATE'S OR OTHER COURT IN MARYLAND, NOR HAS IN THAT PERIOD USED A
COLLECTION AGENT IN MARYLAND.  THE DEFENDANT EMPLOYS NO COLLECTORS. 
THE MARYLAND CUSTOMERS MAKE PAYMENTS TO THE DEFENDANT PERSONALLY AT THE
STORE IN WILMINGTON, DELAWARE, OR BY CHECK, CASH OR MONEY ORDER SENT
THROUGH THE MAILS. 

"(D)  NO C.O.D. DELIVERIES ARE MADE. 

"7.  EXCEPT TO THE EXTENT, IF ANY, DISCLOSED ABOVE, DEFENDANT DOES
NOT MAINTAIN, OCCUPY OR USE, NOR HAS IT EVER IN THE PAST MAINTAINED,
OCCUPIED OR USED, PERMANENTLY OR TEMPORARILY, DIRECTLY OR INDIRECTLY,
OR THROUGH A SUBSIDIARY OR AGENT, BY WHATEVER NAME CALLED, ANY OFFICE,
BRANCH, PLACE OF DISTRIBUTION, SALES OR SAMPLE ROOMS OR PLACE,
WAREHOUSE OR STORAGE PLACE, OR OTHER PLACE OF BUSINESS IN THE STATE OF
MARYLAND. 

"8.  EXCEPT TO THE EXTENT, IF ANY, DISCLOSED ABOVE, DEFENDANT DOES
NOT HAVE, NOR HAS IT EVER HAD, ANY REPRESENTATIVE, AGENT, SALESMAN,
CANVASSER OR SOLICITOR OPERATING IN THE STATE OF MARYLAND FOR THE
PURPOSE OF SELLING OR TAKING ANY ORDERS FOR TANGIBLE PERSONAL PROPERTY,
OR DELIVERING THE SAME. 

"9.  DEFENDANT IS NOT, NOR HAS IT EVER BEEN, QUALIFIED OR REGISTERED
TO DO BUSINESS IN THE STATE OF MARYLAND. 

"10.  ON OR ABOUT MARCH 10, 1952, THE COMPTROLLER OF THE STATE OF
MARYLAND ASSESSED A DEFICIENCY IN USE TAX AGAINST THE DEFENDANT IN THE
AMOUNT OF $356.40, $240.00 THEREOF REPRESENTING THE USE TAX CLAIMED TO
BE DUE, $32.40 THEREOF AS INTEREST CLAIMED TO BE DUE AND $84.00 THEREOF
AS A PENALTY CLAIMED TO BE DUE FOR THE TAX PERIOD FROM JULY 1, 1947,
THROUGH DECEMBER 31, 1951, BASED UPON ALL THE SALES REFERRED TO IN
PARAGRAPH 5 ABOVE. 

"11.  DEFENDANT HAS NOT APPLIED FOR A PERMIT NOR BEEN AUTHORIZED BY
THE COMPTROLLER TO COLLECT ANY USE TAX UNDER SEC. 312 OF ARTICLE 81 OF
THE ANNOTATED CODE OF MARYLAND (1947 SUPP.). 

"12.  DEFENDANT HAS NOT APPLIED FOR, NOR PAID THE LICENSE FEE
REQUIRED TO OBTAIN, NOR HAS BEEN ISSUED, A LICENSE PURSUANT TO SECTIONS
331-333 TO ARTICLE 81 OF THE ANNOTATED CODE OF MARYLAND (1947 SUPP.). 

"13.  EXCEPT AS INDICATED ABOVE, DEFENDANT DOES NOT ENGAGE AND HAS
NOT ENGAGED IN ANY ACTIVITIES IN THE STATE OF MARYLAND." 

FN5  CRIZ, THE USE TAX, 1 (PUBLIC ADMINISTRATION SERVICE NO. 78,
1941); HELLERSTEIN, STATE AND LOCAL TAXATION (1952), 4-12, 338; HAIG
AND SHOUP, THE SALES TAX IN THE AMERICAN STATES (1934), 83. 

FN6  CRIZ, SUPRA, AT 3-4, 36-39.  FOR AN EXAMPLE OF THE REVENUE
FEATURES IN A PARTICULAR STATE, SEE MCLEES, THE USE TAX AFTER ONE YEAR,
4 ARK. L. REV. 337, 339 (1950). 

FN7  CRIZ, SUPRA, AT 1-2; HELLERSTEIN, SUPRA, AT 116, 408-409, 418;
JACOBY, RETAIL SALES TAXATION (1938), C. VI. 

FN8  MAGUIRE V. TREFRY, 253 U.S. 12; LAWRENCE V. STATE TAX COMM'N,
286 U.S. 276; NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308; GUARANTY
TRUST CO. V. VIRGINIA, 305 U.S. 19. 

THE COLLECTION OF CASES IN FOOTNOTES 8 THROUGH 20 IS NOT INTENDED AS
A GUIDE TO THEIR HOLDINGS BUT ONLY AS AN ILLUSTRATION OF THE TYPES OF
JURISDICTIONAL STANDARDS SANCTIONED AT ONE TIME OR ANOTHER BY THE
COURT.    FN9  MOST OF THESE CASES DEAL WITH INTANGIBLE PROPERTY AND
APPLY THE MAXIM MOBILIA SEQUUNTUR PERSONAM.  KIRTLAND V. HOTCHKISS, 100
U.S. 491; DARNELL V. INDIANA, 226 U.S. 390; HAWLEY V. CITY OF MALDEN,
232 U.S. 1; FIDELITY & COLUMBIA TRUST CO. V. LOUISVILLE, 245 U.S. 54;
CITIZENS NATIONAL BANK V. DURR, 257 U.S. 99; KLEIN V. BOARD OF TAX
SUPERVISORS, 282 U.S. 19;, 24; GREENOUGH V. TAX ASSESSORS OF NEWPORT,
331 U.S. 486.  SEE NEVADA BANK V. SEDGWICK, 104 U.S. 111; BONAPARTE V.
TAX COURT, 104 U.S. 592, 595; STURGES V. CARTER, 114 U.S. 511, 521;
DEWEY V. DES MOINES, 173 U.S. 193; KIDD V. ALABAMA, 188 U.S. 730, 731. 

FN10 BLACKSTONE V. MILLER, 188 U.S. 189; BULLEN V. WISCONSIN, 240
U.S. 625; BLODGETT V. SILBERMAN, 277 U.S. 1; FARMERS LOAN & TRUST CO.
V. MINNESOTA, 280 U.S. 204; BALDWIN V. MISSOURI, 281 U.S. 586; BEIDLER
V. SOUTH CAROLINA TAX COMM'N, 282 U.S. 1; FIRST NATIONAL BANK V. MAINE,
284 U.S. 312; CURRY V. MCCANLESS, 307 U.S. 357; GRAVES V. ELLIOTT, 307
U.S. 383; GRAVES V. SCHMIDLAPP, 315 U.S. 657; CENTRAL HANOVER BANK &
TRUST CO. V. KELLY, 319 U.S. 94.  SEE CARPENTER V. PENNSYLVANIA, 17
HOW.  456; WACHOVIA BANK & TRUST CO. V. DOUGHTON, 272 U.S. 567; BURNET
V. BROOKS, 288 U.S. 378, 400-405.  CF. WORCESTER COUNTY TRUST CO. V.
RILEY, 302 U.S. 292; PEARSON V. MCGRAW, 308 U.S. 313.  SEE ALSO KEENEY
V. COMPTROLLER OF NEW YORK, 222 U.S. 525, 537, WHICH INVOLVED AN EXCISE
TAX ON AN INTER VIVOS TRANSFER OF STOCKS AND BONDS. 

FN11  THE COURT HAS NEVER HAD A CASE IN WHICH A STATE ATTEMPTED A
DIRECT TAX ON LAND LOCATED IN ANOTHER STATE.  SEE UNION REFRIGERATOR
TRANSIT CO. V. KENTUCKY, 199 U.S. 194, 204.  INSTEAD, THE CASES IN
POINT SPEAK OF THE PROBLEM BY WAY OF DICTA OR DEAL WITH INTERESTS
ATTACHED TO THE REALTY, SUCH AS INCORPOREAL HEREDITAMENTS.  SEE
WITHERSPOON V. DUNCAN, 4 WALL.  210; STATE TAX ON FOREIGN-HELD BONDS,
15 WALL.  300, 319; SAVINGS & LOAN SOCIETY V. MULTNOMAH COUNTY, 169
U.S. 421; PADDELL V. CITY OF NEW YORK, 211 U.S. 446; FIRST NATIONAL
BANK V. MAINE, 284 U.S. 312, 326; SENIOR V. BRADEN, 295 U.S. 422.  CF.
LOUISVILLE & JEFFERSONVILLE FERRY CO. V. KENTUCKY, 188 U.S. 385;
CENTRAL R. CO. V. JERSEY CITY, 209 U.S. 473. 

FN12  COE V. ERROL, 116 U.S. 517, 524; ADAMS EXPRESS CO. V. OHIO
STATE AUDITOR, 165 U.S. 194, 226-227; AMERICAN REFRIGERATOR TRANSIT CO.
V. HALL, 174 U.S. 70; UNION REFRIGERATOR TRANSIT CO. V. LYNCH, 177 U.S.
149; CARSTAIRS V. COCHRAN, 193 U.S. 10; OLD DOMINION S.S. CO. V.
VIRGINIA, 198 U.S. 299; HANNIS DISTILLING CO. V. MAYOR AND CITY
COUNCIL, 216 U.S. 285; JOHNSON OIL REFINING CO. V. OKLAHOMA EX REL.
MITCHELL, 290 U.S. 158; CITY BANK FARMERS TRUST CO. V. SCHNADER, 293
U.S. 112; OTT V. MISSISSIPPI VALLEY BARGE LINE CO., 336 U.S. 169.  SEE
HAYS V. PACIFIC MAIL S.S. CO., 17 HOW.  596; ST. LOUIS V. FERRY CO., 11
WALL.  423; MORGAN V. PARHAM, 16 WALL.  471; GLOUCESTER FERRY CO. V.
PENNSYLVANIA, 114 U.S. 196, 210-211; MARYE V. BALTIMORE & O.R. CO., 127
U.S. 117, 123; PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141 U.S. 18,
22; PITTSBURGH, C., C. & ST. L.R. CO. V. BACKUS, 154 U.S. 421, 427-428;
HENDERSON BRIDGE CO. V. HENDERSON CITY, 173 U.S. 592, 609, 613, 622
(BRIDGE); DIAMOND MATCH CO. V. ONTONAGON, 188 U.S. 82; FARGO V. HART,
193 U.S. 490; DELAWARE L.&W.R. CO. V. PENNSYLVANIA, 198 U.S. 341; UNION
REFRIGERATOR TRANSIT CO. V. KENTUCKY, 199 U.S. 194; THOMPSON V.
KENTUCKY, 209 U.S. 340, 347; GROMER V. STANDARD DREDGING CO., 167;
UNION TANK LINE CO. V. WRIGHT, 249 U.S. 275; FRICK V. PENNSYLVANIA, 268
U.S. 473; TREICHLER V. WISCONSIN, 338 U.S. 251; STANDARD OIL CO. V.
PECK, 342 U.S. 382.  WHETHER THE PROPERTY IS SUFFICIENTLY SITUATED IN
THE STATE TO BECOME PART OF THE GENERAL MASS OF TAXABLE PROPERTY OR
WHETHER IT IS MERELY IN TRANSIT IS FREQUENTLY TREATED AS AN INTERSTATE
COMMERCE QUESTION RATHER THAN A JURISDICTIONAL ONE.  E.G., BROWN V.
HOUSTON, 114 U.S. 622, 632-633; PITTSBURG & SOUTHERN COAL CO. V. BATES,
156 U.S. 577, 588-589; KELLEY V. RHOADS, 188 U.S. 1; GENERAL OIL CO. V.
CRAIN, 209 U.S. 211; CHAMPLAIN REALTY CO. V. BRATTLEBORO, 260 U.S.
366.  AS TO THE SITUS OF PERSONALTY WITHIN VARIOUS COUNTIES OF A SINGLE
STATE, SEE COLUMBUS SOUTHERN R. CO. V. WRIGHT, 151 U.S. 470. 

FN13  TAPPAN V. MERCHANTS' NATIONAL BANK, 19 WALL.  490, 499-500;
ADAMS EXPRESS CO. V. OHIO STATE AUDITOR, 166 U.S. 185; NEW ORLEANS V.
STEMPEL, 175 U.S. 309; BRISTOL V. WASHINGTON COUNTY, 177 U.S. 133;
STATE BOARD OF ASSESSORS V. COMPTOIR NATIONAL D'ESCOMPTE, 191 U.S. 388;
METROPOLITAN LIFE INS. CO. V. NEW ORLEANS, 205 U.S. 395; LIVERPOOL &
LONDON & GLOBE INS. CO. V. BOARD OF ASSESSORS, 221 U.S. 346; ORIENT
INS. CO. V. BOARD OF ASSESSORS, 221 U.S. 358; WHEELER V. SOHMER, 233
U.S. 434; ROGERS V. HENNEPIN COUNTY, 240 U.S. 184; IOWA V. SLIMMER, 248
U.S. 115; SAFE DEPOSIT & TRUST CO. V. VIRGINIA, 280 U.S. 83; VIRGINIA
V. IMPERIAL COAL SALES CO., 293 U.S. 15; WHEELING STEEL CORP. V. FOX,
298 U.S. 193; NEW YORK EX REL. WHITNEY V. GRAVES, 299 U.S. 366; FIRST
BANK STOCK CORP. V. MINNESOTA, 301 U.S. 234.  SEE RAILROAD CO. V.
JACKSON, 7 WALL.  262; ADAMS EXPRESS CO. V. KENTUCKY, 166 U.S. 171;
SCOTTISH UNION & NATIONAL INS. CO. V. BOWLAND, 196 U.S. 611, 619-620;
BUCK V. BEACH, 206 U.S. 392; SELLIGER V. KENTUCKY, 213 U.S. 200; BROOKE
V. CITY OF NORFOLK, 277 U.S. 27.  CF. BOARD OF ASSESSORS V. NEW YORK
LIFE INS. CO., 216 U.S. 517, 523.  IN SOME OF THESE CASES, THE PROPERTY
WOULD APPEAR TO BE TANGIBLE AS WELL AS INTANGIBLE IN NATURE. 

FN14  THIS IS GENERALLY DISCUSSED AS AN INTERSTATE COMMERCE
QUESTION.  E.G., BOWMAN V. CONTINENTAL OIL CO., 256 U.S. 642; EASTERN
AIR TRANSPORT, INC. V. SOUTH CAROLINA TAX COMM'N, 285 U.S. 147; GREGG
DYEING CO. V. QUERY, 286 U.S. 472; NASHVILLE, C. & ST. L.R. CO. V.
WALLACE, 288 U.S. 249; EDELMAN V. BOEING AIR TRANSPORT, INC., 289 U.S.
249; MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86; HENNEFORD V. SILAS
MASON CO., 300 U.S. 577.  SEE ALSO FOOTNOTE 20. 

FN15  NEW YORK EX REL. HATCH V. REARDON, 204 U.S. 152, 158-159.  SEE
DEPARTMENT OF TREASURY V. WOOD PRESERVING CORP., 313 U.S. 62; MCLEOD V.
J.E. DILWORTH CO., 322 U.S. 327.  CF.  SONNEBORN BROS. V. CURETON, 262
U.S. 506; GRANITEVILLE MFG. CO. V. QUERY, 283 U.S. 376 (CREATION OF
PROMISSORY NOTES).  SEE ALSO FOOTNOTE 19. 

FN16  KANE V. NEW JERSEY, 242 U.S. 160; INTERSTATE BUSSES CORP. V.
BLODGETT, 276 U.S. 245; CONTINENTAL BAKING CO. V. WOODRING, 286 U.S.
352; HICKLIN V. CONEY, 290 U.S. 169.  SEE HENDRICK V. MARYLAND, 235
U.S. 610; CLARK V. POOR, 274 U.S. 554.  CF. SPROUT V. SOUTH BEND, 277
U.S. 163; INTERSTATE TRANSIT, INC. V. LINDSEY, 283 U.S. 183; CLARK V.
PAUL GRAY, INC., 306 U.S. 583; BODE V. BARRETT, 344 U.S. 583. 

FN17  SOCIETY FOR SAVINGS V. COITE, 6 WALL.  594, 607; DELAWARE
RAILROAD TAX, 18 WALL.  206, 231; HENDERSON BRIDGE CO. V. KENTUCKY, 166
U.S. 150; CORRY V. MAYOR AND COUNCIL OF BALTIMORE, 196 U.S. 466; AYER &
LORD TIE CO. V. KENTUCKY, 202 U.S. 584; SOUTHERN PACIFIC CO. V.
KENTUCKY, 222 U.S. 63; KANSAS CITY, F.S.&M.R. CO. V. BOTKIN, 240 U.S.
227, 232, 235; KANSAS CITY, M.&B.R. CO. V. STILES, 242 U.S. 111, 118
119; CREAM OF WHEAT CO. V. COUNTY OF GRAND FORKS, 253 U.S. 325; SCHWAB
V. RICHARDSON, 263 U.S. 88; MATSON NAVIGATION CO. V. STATE BOARD OF
EQUALIZATION, 297 U.S. 441; SCHUYLKILL TRUST CO. V. PENNSYLVANIA, 302
U.S. 506, 514-516; NEWARK FIRE INS. CO. V. STATE BOARD OF TAX APPEALS,
307 U.S. 313; NORTHWEST AIRLINES, INC. V. MINNESOTA, 322 U.S. 292.  SEE
BAKER V. BAKER, ECCLES & CO., 242 U.S. 394, 400-401; MAXWELL V. BUGBEE,
250 U.S. 525, 539-540; STATE TAX COMM'N V. ALDRICH, 316 U.S. 174.  IN
MANY OF THESE CASES THE COMPANY WAS ALSO DOING BUSINESS IN THE STATE OF
INCORPORATION. 

FN18  STATE RAILROAD TAX CASES, 92 U.S. 575, 603; HORN SILVER MINING
CO. V. NEW YORK, 143 U.S. 305; BALTIC MINING CO. V. MASSACHUSETTS, 231
U.S. 68; ST. LOUIS SOUTHWESTERN R. CO. V. ARKANSAS, 235 U.S. 350, 364;
EQUITABLE LIFE ASSURANCE SOCIETY V. PENNSYLVANIA, 238 U.S. 143;
UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, 254 U.S. 113; PULLMAN CO. V.
RICHARDSON, 261 U.S. 330; BASS, RATCLIFF & GRETTON, LTD. V. STATE TAX
COMM'N, 266 U.S. 271; GREAT NORTHERN R. CO. V. MINNESOTA, 278 U.S. 503;
GREAT ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S. 412, 424-427;
ATLANTIC REFINING CO. V. VIRGINIA, 302 U.S. 22, 29-31; ILLINOIS CENTRAL
R. CO. V. MINNESOTA, 309 U.S. 157; WISCONSIN V. J.C. PENNEY CO., 311
U.S. 435; INTERNATIONAL HARVESTER CO. V. WISCONSIN DEPARTMENT OF
TAXATION, 322 U.S. 435; INTERNATIONAL HARVESTER CO. V. EVATT, 329 U.S.
416, 420-421; INTERSTATE OIL PIPE LINE CO. V. STONE, 337 U.S. 662, 667
668.  SEE ERIE R. CO. V. PENNSYLVANIA, 21 WALL.  492; WESTERN UNION
TELEGRAPH CO. V. ATTORNEY GENERAL, 125 U.S. 530, 548; MAINE V. GRAND
TRUNK R. CO., 142 U.S. 217, 227-228; CENTRAL PACIFIC R. CO. V.
CALIFORNIA, 162 U.S. 91, 126; WESTERN UNION TELEGRAPH CO. V. MISSOURI
EX REL. GOTTLIEB, 190 U.S. 412; WESTERN UNION TELEGRAPH CO. V. KANSAS
EX REL.  COLEMAN, 216 U.S. 1, 30, 38; PULLMAN CO. V. KANSAS EX REL.
COLEMAN, 216 U.S. 56, 61-63; LUDWIG V. WESTERN UNION TELEGRAPH CO., 216
U.S. 146, 162-163; ATCHISON, T.&S.F.R. CO. V. O'CONNOR, 223 U.S. 280,
285; PROVIDENT SAVINGS LIFE ASSURANCE SOCIETY V. KENTUCKY, 239 U.S.
103; LOONEY V. CRANE CO., 245 U.S. 178, 187-188; INTERNATIONAL PAPER CO
V. MASSACHUSETTS, 246 U.S. 135; WALLACE V. HINES, 253 U.S. 66; SOUTHERN
R. CO. V. WATTS, 260 U.S. 519, 527; BAKER V. DRUESEDOW, 263 U.S. 137;
AIR-WAY ELECTRIC APPLIANCE CORP. V. DAY, 266 U.S. 71, 81-82; ALPHA
PORTLAND CEMENT CO. V. MASSACHUSETTS, 268 U.S. 203, 217-218; RHODE
ISLAND HOSPITAL TRUST CO. V. DOUGHTON, 270 U.S. 69; HANS REES' SONS,
INC. V. NORTH CAROLINA EX REL. MAXWELL, 283 U.S. 123; CONNECTICUT
GENERAL LIFE INS. CO. V. JOHNSON, 303 U.S. 77; WISCONSIN GAS & ELECTRIC
CO. V. UNITED STATES, 322 U.S. 526, 530-531.  CF.  ARMOUR & CO. V.
VIRGINIA, 246 U.S. 1; ST. LOUIS & E. ST. L.E.R. CO. V. MISSOURI, 256
U.S. 314, 318; ROWLEY V. CHICAGO & NORTHWESTERN R. CO., 293 U.S. 102;
JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 138-140; NIPPERT V.
RICHMOND, 327 U.S. 416, 423-424.  THE SAME PRINCIPLE APPLIES TO
INDIVIDUALS ENGAGED IN BUSINESS WITHIN THE STATE.  FICKLEN V. SHELBY
COUNTY TAXING DISTRICT, 145 U.S. 1; SHAFFER V. CARTER, 252 U.S. 37;
TRAVIS V. YALE & TOWNE MFG CO., 252 U.S. 60.  SEE ALSO HAAVIK V. ALASKA
PACKERS ASSN., 263 U.S. 510, WHERE LICENSE AND POLL TAXES WERE IMPOSED
ON AN INDIVIDUAL WHO WAS WORKING IN ALASKA BUT WAS NOT A RESIDENT OR
DOMICILIARY THERE. 

FN19  COMPARE NORTON CO. V. DEPARTMENT OF REVENUE, 340 U.S. 534, WITH
INTERNATIONAL HARVESTER CO. V. DEPARTMENT OF TREASURY, 322 U.S. 340;
MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S. 33, AND
MCGOLDRICK V. FELT & TARRANT MFG. CO., 309 U.S. 70. 

FN20  COMPARE SOUTHERN PACIFIC CO. V. GALLAGHER, 306 U.S. 167, 180
181, WITH GENERAL TRADING CO. V. STATE TAX COMM'N, 322 U.S. 335; NELSON
V. SEARS, ROEBUCK & CO., 312 U.S. 359; NELSON V. MONTGOMERY WARD & CO.,
312 U.S. 373, AND FELT & TARRANT MFG. CO. V. GALLAGHER, 306 U.S. 62. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE CLARK CONCUR, DISSENTING. 

THE STATES HAVE BEEN INCREASINGLY TURNING TO SALES AND USE TAXES TO
RAISE THE REVENUES THEY NEED TO EDUCATE, PROTECT, AND SERVE THEIR
GROWING NUMBER OF CITIZENS.  UNLESS THE STATES CAN COLLECT A SALES OR
USE TAX UPON GOODS BEING PURCHASED OUT-OF-STATE, THERE IS A FERTILE
OPPORTUNITY FOR THE CITIZEN WHO WANTS STATE BENEFITS WITHOUT PAYING
TAXES TO BUY OUT-OF-STATE.  AND THERE ARE JUST-ACROSS-THE-STATE-LINE
MERCHANTS WHO CAPITALIZE UPON THIS OPPORTUNITY.  AFTER TODAY'S DECISION
THERE WILL BE MORE. 

I SEE NO CONSTITUTIONAL DIFFICULTY IN MAKING APPELLANT A TAX
COLLECTOR FOR MARYLAND UNDER THE GENERAL PRINCIPLES ANNOUNCED IN
GENERAL TRADING CO. V. TAX COMMISSION, 322 U.S. 335.  WHEN APPELLANT'S
SALES CLERKS MAKE OUT THE SALES SLIPS AND ARRANGE FOR THE SHIPMENT OF
THE PURCHASED GOODS, THEY SURELY WILL KNOW WHICH ARE DESTINED FOR
MARYLAND, WHICH FOR SOME OTHER STATE.  HENCE TO MAKE APPELLANT ADD THE
MARYLAND USE TAX TO THE BILL WHEN THE PURCHASER REQUESTS THAT THE GOODS
BE SHIPPED TO MARYLAND IS ONLY A MINIMAL BURDEN.  APPELLANT WILL BE
PAID FOR ITS TROUBLE.  (FN1)  IF LIABILITY WERE SOUGHT TO BE IMPOSED
UNDER CIRCUMSTANCES INDICATING THAT APPELLANT HAD BEEN TAKEN BY SUPRISE
OR TREATED UNFAIRLY, DIFFERENT CONSIDERATIONS WOULD COME INTO PLAY. 
BUT APPELLANT IN THIS CASE PLEADS IMMUNITY, NOT IGNORANCE OF THE
MARYLAND LAW NOR HARSHNESS IN ITS APPLICATION. 

THIS IS NOT A CASE OF A MINIMAL CONTACT BETWEEN A VENDOR AND THE
COLLECTING STATE.  APPELLANT DID NOT SELL CASH-AND-CARRY WITHOUT
KNOWLEDGE OF THE DESTINATION OF THE GOODS; AND ITS DELIVERY TRUCK WAS
NOT IN MARYLAND UPON A CASUAL, NONRECURRING VISIT.  RATHER THERE HAS
BEEN A COURSE OF CONDUCT IN WHICH THE APPELLANT HAS REGULARLY INJECTED
ADVERTISING INTO MEDIA REACHING MARYLAND CONSUMERS AND REGULARLY
EFFECTED DELIVERIES WITHIN MARYLAND BY ITS OWN DELIVERY TRUCKS AND BY
COMMAN CARRIERS.  (FN2) 

JURISDICTION OVER APPELLANT IN THIS SUIT WAS OBTAINED WHEN ITS MOTOR
VEHICLE WAS ATTACHED WHILE IT WAS BEING USED IN MARYLAND.  PENNOYER V.
NEFF, 95 U.S. 714; OWNBEY V. MORGAN, 256 U.S. 94.  IF APPELLANT CHOOSES
TO KEEP OUT OF MARYLAND ENTIRELY, THEN THE MARYLAND COURTS WILL OF
COURSE HAVE NO JURISDICTION OVER IT.  BUT AS LONG AS APPELLANT CHOOSES
TO DO SOME BUSINESS THERE, I SEE NOTHING IN THE DUE PROCESS CLAUSE
WHICH WOULD PREVENT MARYLAND FROM MAKING IT A COLLECTOR FOR TAXES ON
SALES WHICH APPELLANT KNOWS ARE DESTINED FOR MARYLAND HOMES. 

FN1  THE MARYLAND STATUTE PROVIDES THAT THE VENDOR-COLLECTOR MAY
RETAIN 3 PERCENT OF THE GROSS TAX AS COMPENSATION FOR COLLECTION AND
REMITTANCE EXPENSES.  FLACK'S MD. ANN. CODE, 1951, ART. 81, SEC. 384. 

FN2  THE PARTIES STIPULATED THAT APPELLANT ADVERTISES IN MARYLAND,
BOTH BY DELAWARE NEWSPAPERS WHICH CIRCULATE ACROSS THE STATE LINE AND
BY DIRECT MAIL TO MARYLAND CUSTOMERS.  IT WAS ALSO STIPULATED THAT,
OVER A FOUR-AND-A-HALF-YEAR PERIOD, AT LEAST $12,000 WORTH OF
MERCHANDISE WAS SOLD BY APPELLANT TO MARYLAND PURCHASERS FOR MARYLAND
USE.  APPROXIMATELY TWO-THIRDS OF THIS MERCHANDISE WAS DELIVERED BY
APPELLANT TO ITS MARYLAND CUSTOMERS IN A MOTOR VEHICLE OWNED AND
OPERATED BY APPELLANT. 
..END :










RAILWAY EXPRESS AGENCY, INC. V. VIRGINIA 347 U.S. 359 


NO. 163.  ARGUED JANUARY 5, 1954 - DECIDED APRIL 5, 1954 - 194 VA. 757,
75 S.E.2D 61, REVERSED. 


A VIRGINIA STATUTE PROVIDES A SEPARATE AND DETAILED SYSTEM OF TAXATION
FOR EXPRESS COMPANIES.  IN ADDITION TO "TAXES ON PROPERTY OF EXPRESS
COMPANIES," IT PROVIDES THAT, "FOR THE PRIVILEGE OF DOING BUSINESS IN
THIS STATE," EXPRESS COMPANIES SHALL PAY AN "ANNUAL LICENSE TAX" UPON
GROSS RECEIPTS EARNED IN THE STATE "ON BUSINESS PASSING THROUGH, INTO
OR OUT OF THIS STATE."  HELD:  THE GROSS-RECEIPTS TAX IS IN FACT AND
EFFECT A PRIVILEGE TAX, AND ITS APPLICATION TO A FOREIGN CORPORATION
DOING AN EXCLUSIVELY INTERSTATE BUSINESS VIOLATES THE COMMERCE CLAUSE
OF THE FEDERAL CONSTITUTION.  PP. 360-369. 

(A)  IN A CASE INVOLVING THE LINE BETWEEN PERMISSIBLE STATE TAXATION
OF PROPERTY AT ITS FULL VALUE, INCLUDING GOING-CONCERN VALUE, AND
PROHIBITED TAXATION OF GROSS RECEIPTS FROM INTERSTATE COMMERCE, NEITHER
THE STATE COURTS NOR THE LEGISLATURE, BY GIVING THE TAX A PARTICULAR
NAME OR BY THE USE OF SOME FORM OF WORDS, CAN RELIEVE THIS COURT OF ITS
DUTY TO CONSIDER THE NATURE AND EFFECT OF THE TAX, IN WHICH INQUIRY
THIS COURT IS CONCERNED ONLY WITH THE PRACTICAL OPERATION OF THE TAX. 
P. 363. 

(B)  WHEN ASSESSING TANGIBLE PROPERTY, THE STATE HAS THE RIGHT TO USE
ANY FAIR FORMULA WHICH WILL GIVE EFFECT TO THE INTANGIBLE FACTORS WHICH
INFLUENCE REAL VALUES, BUT THAT IS NOT WHAT THE STATE DID HERE.  P.
364. 

(C)  THE PRACTICAL EFFECT OF THE CHALLENGED TAX CONFORMS TO ITS
STATUTORY DESCRIPTION AS ONE WHOSE IMPACT IS SQUARELY UPON GROSS
RECEIPTS WITHOUT CONSIDERATION OF THEIR RELATION TO THE VALUE OF ANY OF
THE CLASSES OF PROPERTY RECOGNIZED ELSEWHERE IN THE STATUTE.  PP. 364
369. 

(D)  LOCAL INCIDENTS SUCH AS GATHERING UP OR PUTTING DOWN INTERSTATE
COMMODITIES AS AN INTEGRAL PART OF THEIR INTERSTATE MOVEMENT ARE NOT
ADEQUATE GROUNDS FOR A STATE LICENSE, PRIVILEGE OR OCCUPATION TAX.  PP.
367-369. 

(E)  BALTIMORE STEAM PACKET CO. V. VIRGINIA, 343 U.S. 923, AND
NORFOLK, B.&.C. LINE V. VIRGINIA, 343 U.S. 923, DISTINGUISHED.  PP. 368
369. 

RAILWAY EXPRESS AGENCY, INC. V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

THE SUPREME COURT OF APPEALS OF VIRGINIA SUSTAINED THE
CONSTITUTIONALITY OF A STATE TAX AS APPLIED TO APPELLANT.  194 VA. 757,
75 S.E.2D 61.  ON APPEAL TO THIS COURT, REVERSED AND REMANDED, P. 369. 

OPINION OF THE COURT BY MR. JUSTICE JACKSON, ANNOUNCED BY MR. JUSTICE
REED. 

THIS APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA PRESENTS
ANOTHER VARIATION IN THE SEEMINGLY ENDLESS PROBLEMS RAISED BY EFFORTS
OF THE SEVERAL STATES TO TAX COMMERCE AS IT MOVES AMONG THEM. 

IN THE 1920'S THE RAILROADS OF THE COUNTRY TOOK OVER THE EXPRESS
BUSINESS THERETOFORE SEPARATELY HANDLED.  THEIR INSTRUMENTALITY WAS
THIS APPELLANT, A DELAWARE CORPORATION, CHARTERED FOR INTERSTATE AND
INTRASTATE OPERATION THROUGHOUT THE UNION AND ACTUALLY SO OPERATING IN
EVERY STATE EXCEPT VIRGINIA.  IT SOUGHT TO DO A GENERAL EXPRESS
BUSINESS THERE, BUT THE STATE HAS A CONSTITUTIONAL PROVISION WHICH
FORBIDS A FOREIGN CORPORATION TO EXERCISE ANY PUBLIC-SERVICE POWERS OR
FUNCTIONS THEREIN.  (FN1)  THIS PROHIBITION WAS INVOKED BY THE STATE
CORPORATION COMMISSION (2) TO DENY APPELLANT AUTHORITY TO DO ANY
INTRASTATE BUSINESS.  THIS EXCLUSION WAS SUSTAINED BY VIRGINIA'S
HIGHEST COURT (FN3) AND BY THIS COURT.  (FN4) 

AS A CONSEQUENCE OF THE STATE'S OWN POLICY, THIS APPELLANT DOES NO
BUSINESS IN VIRGINIA WHICH THE STATE HAS POWER TO PROHIBIT BUT DOES
ONLY SUCH AS IT CAN CONDUCT UNDER PROTECTION OF THE COMMERCE CLAUSE OF
THE FEDERAL CONSTITUTION.  TO HANDLE SUCH INTRASTATE EXPRESS AS FALLS
WITHIN THE POWER OF THE STATE TO CONTROL, A SEPARATE VIRGINIA
SUBSIDIARY NECESSARILY WAS ORGANIZED.  THAT LOCAL COMPANY ANNUALLY HAS
BEEN ASSESSED AND HAS PAID THE TYPE OF TAX HERE IN CONTROVERSY, BASED
UPON ITS TOTAL GROSS RECEIPTS.  THOSE PAYMENTS ARE NOT BEFORE US. 

VIRGINIA PROVIDES BY STATUTE (FN5) A SEPARATE AND DETAILED SYSTEM OF
TAXATION FOR EXPRESS COMPANIES.  IT ALLOCATES TO STATE TAXATION, FREE
OF ALL LOCAL LEVIES, TWO KINDS OF PROPERTY, VIZ., INTANGIBLE PERSONAL
PROPERTY AND MONEY.  IT SETS OFF REAL ESTATE AND TANGIBLE PERSONAL
PROPERTY FOR LOCAL LEVIES AT THE SAME RATES AS OTHER SIMILAR
PROPERTIES.  THESE, TAXABLE AT DIFFERENT RATES, ARE ALL INCLUDED IN THE
STATUTE UNDER THE RUBRIC "TAXES ON PROPERTY OF EXPRESS COMPANIES." 
THEN FOLLOWS A SECTION HEADED "ANNUAL LICENSE TAX" PROVIDING THAT "FOR
THE PRIVILEGE OF DOING BUSINESS IN THIS STATE" EXPRESS COMPANIES SHALL
PAY "IN ADDITION TO  ...  THE PROPERTY TAX AS HEREIN PROVIDED" AN
"ANNUAL LICENSE TAX" UPON GROSS RECEIPTS EARNED IN THE STATE "ON
BUSINESS PASSING THROUGH, INTO OR OUT OF THIS STATE." 

APPELLANT HAS PROTESTED THE GROSS-RECEIPTS TAX, AND FOR SOME YEARS
THE PROTESTING COMPANY AND THE STATE AUTHORITIES APPEAR TO HAVE COME
TOGETHER ON A COMPROMISE FORMULA, AS TO THE PORTION OF RECEIPTS
ATTRIBUTABLE TO VIRGINIA, THE DETAILS OF WHICH NEED NOT CONCERN US,
SINCE IT DOES NOT AFFECT THE ISSUE OF POWER NOW ADEQUATELY RAISED,
PASSED UPON BY THE STATE CORPORATION COMMISSION AND THE SUPREME COURT
OF APPEALS AND DULY BROUGHT BEFORE US. 

SINCE ADMITTEDLY THE STATE DID NOT GRANT ANY PRIVILEGE BUT ON THE
CONTRARY DENIED EVERY PRIVILEGE IN ITS POWER TO WITHHOLD, AND SINCE IT
CONCEDES THAT APPELLANT DOES NOTHING WITHIN THE STATE EXCEPT INTERSTATE
COMMERCE, APPELLANT CONTENDS THAT THE ASSESSMENT IS INVALID FOR
CONTRAVENTION OF THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION. 

THE STATE COUNTERS WITH THE CONTENTION THAT WE SHOULD REGARD THIS,
NOT AS A PRIVILEGE TAX, EVEN THOUGH IT WAS LABELED AS SUCH BY THE
STATUTE IMPOSING IT, BUT, INSTEAD, AS A PROPERTY TAX MEASURED BY GROSS
INCOME AND LAID ON THE INTANGIBLE VALUE OF GOOD-WILL OR GOING CONCERN
STATUS.  THE CORPORATION COMMISSION SAID THAT THE PHYSICAL PROPERTIES
WERE ASSESSED AT DEAD VALUE OR BARE-BONES VALUE FOR LOCAL TAXATION,
WHILE HERE THE "LIVE, OR GOING CONCERN VALUE" IS BEING SEPARATELY TAXED
BY THE STATE "FOR THE PROTECTION AND SERVICES RENDERED BY IT."  (FN6)
THE STATE'S HIGHEST COURT APPROVED.  WHILE GREAT RESPECT IS DUE THESE
CONCLUSIONS, IT HAS LONG BEEN HELD THAT IN A CASE INVOLVING THE LINE
BETWEEN PERMISSIBLE STATE TAXATION OF PROPERTY AT ITS FULL VALUE,
INCLUDING GOING-CONCERN VALUE, AND PROHIBITED TAXATION OF GROSS
RECEIPTS FROM INTERSTATE COMMERCE, "NEITHER THE STATE COURTS NOR THE
LEGISLATURES, BY GIVING THE TAX A PARTICULAR NAME OR BY THE USE OF SOME
FORM OF WORDS, CAN TAKE AWAY OUR DUTY TO CONSIDER ITS NATURE AND
EFFECT," GALVESTON, H.&S.A.R. CO. V. TEXAS, 210 U.S. 217, 227, IN WHICH
INQUIRY "WE ARE CONCERNED ONLY WITH ITS PRACTICAL OPERATION."  LAWRENCE
V. STATE TAX COMM'N, 286 U.S. 276, 280.  SEE WISCONSIN V. J.C. PENNY
CO., 311 U.S. 435, 443-444. 

WE START WITH THE TAXING STATUTE, IN WHICH THE LEGISLATURE GAVE A
TRINITY OF CHARACTERIZATIONS TO THE TAX.  IT WAS DECLARED TO BE IN
ADDITION TO THE "PROPERTY TAX," NOT AN ADDITIONAL PROPERTY TAX; IT WAS
NAMED "AN ANNUAL LICENSE TAX," AND IT WAS LAID "FOR THE PRIVILEGE OF
DOING BUSINESS IN THIS STATE."  IT IS NOT AN EASY CONCLUSION THAT THE
LEGISLATURE DID NOT KNOW THE ACTUAL CHARACTER OF THE TAX IT WAS LAYING
OR THAT IT MISCONCEIVED WHAT IT WAS TAXING.  IF THE TAX WAS IN PURPOSE
AND EFFECT ONE ON PROPERTY, TANGIBLE OR INTANGIBLE, NO REASON IS
APPARENT FOR CASTING IT IN THE MOLD OF A PRIVILEGE TAX.  INDEED, AS THE
CORPORATION COMMISSION FINALLY SAID, THE OPPOSITE IS TRUE, AND SOME
OTHER BASIS FOR THE TAX MUST BE FOUND IF IT IS TO BE SAVED AS VALID. 
THIS BOTH THE COMMISSION AND THE COURT BELOW SOUGHT TO DO. 

THE VIRGINIA COURT, IN THIS AND EARLIER CASES, CONSIDERED THAT GROSS
EARNINGS MEASURE THE VALUE OF A GOOD-WILL OR GOING-CONCERN ELEMENT
WHICH IS A SEPARATE INTANGIBLE PROPERTY OF THE COMPANY. 

OF COURSE, WE HAVE HELD, AND IT IS BUT COMMON SENSE TO HOLD, THAT A
PHYSICAL ASSET MAY FLUCTUATE IN VALUE ACCORDING TO THE INCOME IT CAN BE
MADE TO PRODUCE.  A LIVE HORSE IS WORTH MORE THAN A DEAD ONE, THOUGH
THE PHYSICAL OBJECT MAY BE THE SAME, AND A SMOOTH-GOING AUTOMOBILE IS
WORTH MORE THAN AN UNASSEMBLED COLLECTION OF ALL ITS PARTS.  THE
PHYSICAL FACILITIES USED IN CARRYING ON A PROSPEROUS BUSINESS ARE WORTH
MORE THAN THE SAME ASSETS IN BANKRUPTCY LIQUIDATION OR ON SALE BY THE
SHERIFF.  NO ONE DENIES THE RIGHT OF THE STATE, WHEN ASSESSING TANGIBLE
PROPERTY, TO USE ANY FAIR FORMULA WHICH WILL GIVE EFFECT TO THE
INTANGIBLE FACTORS WHICH INFLUENCE REAL VALUES.  ADAMS EXPRESS CO. V.
OHIO STATE AUDITOR, 166 U.S. 185.  BUT VIRGINIA HAS NOT DONE THIS. 

INSTEAD, THE PRACTICAL EFFECT OF THE TAX CONFORMS TO ITS STATUTORY
DESCRIPTION AS ONE WHOSE IMPACT IS SQUARELY UPON GROSS RECEIPTS WITHOUT
CONSIDERATION OF THEIR EFFECT ON THE VALUE OF ANY OF THE CLASSES OF
PROPERTY RECOGNIZED ELSEWHERE IN THE STATUTE.  A SUMMARY OF APPELLANT'S
TOTAL TAXATION FOR 1951 WILL ILLUSTRATE THIS POINT.  (FN7)  IT REPORTED
MONEY ON DEPOSIT IN VIRGINIA OF $109,906.38, ON WHICH IT PAID A TAX OF
$219.81 AT THE RATE OF TWENTY CENTS PER $100.  WE MAY DROP THIS ITEM
FROM CONSIDERATION OF ADDITIONAL GOING-CONCERN VALUE, FOR MONEY IS
MONEY AND IS A MEDIUM OF EXCHANGE WHICH DOES NOT DEFLATE OR INFLATE
ACCORDING TO THE OWNER'S USE OF IT.  A DOLLAR TO AN EXPRESS COMPANY IS
WORTH AS MUCH AS AND NO MORE THAN A DOLLAR TO ONE OF ITS EMPLOYEES. 
BUT THIS COMPANY HAD REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY,
ITEMS NO DOUBT POSSESSING A GOING-CONCERN AS WELL AS AN INTRINSIC
VALUE.  THESE PROPERTIES WERE ASSESSED AT $129,279, ON WHICH IT PAID
TAXES OF $3,389.65 AT LOCAL RATES, PROBABLY VARIED BUT AVERAGING 2.6
PER CENTUM. 

APPELLANT'S TAX, UNDER THE QUESTIONED PORTION OF THE STATUTE,
AMOUNTED TO $66,454.71, SO THAT ITS TAX ON A GROSS-RECEIPTS BASIS WAS
OVER FIFTY PERCENT OF THE TOTAL VALUE OF ITS REAL AND TANGIBLE PERSONAL
PROPERTY.  IT IS THIS TAX WHICH VIRGINIA SAYS IS REALLY A TAX ON THE
INTANGIBLE VALUE OF THIS TANGIBLE PROPERTY. 

NEITHER THE STATE COURT NOR THE COMMISSION HAS SEEN FIT TO STATE ANY
AMOUNT WHICH IT CONSIDERS TO BE THE GOING-CONCERN VALUATION.  WE KNOW
THE AMOUNT OF THE TAX, AND WE KNOW THE RATES OF TAXATION, AND FROM THAT
CAN COMPUTE A POSSIBLE VALUATION BASE.  IF THIS GOING-CONCERN VALUE BE
TREATED AS SEPARABLE "INTANGIBLE PROPERTY," THE STATUTORY RATE IS FIFTY
CENTS PER $100, AT WHICH RATE TANGIBLE PROPERTY WORTH ONLY $129,279
MUST BE DEEMED TO HAVE AN INTANGIBLE GOING-CONCERN VALUE OF
$13,290,942.  IN OTHER WORDS, EVERY DOLLAR INVESTED IN THE TANGIBLE
PROPERTY OF AN EXPRESS BUSINESS IS DEEMED WORTH OVER $100 FOR TAX
PURPOSES.  THIS MAY NOT OVERTAX THE EXPRESS COMPANY, BUT IT DOES
OVERTAX OUR CREDULITY, AND NEITHER THE COURT NOR THE COMMISSION, WHILE
TREATING THIS AS AN INTANGIBLE, EXPRESSLY TREATED IT AS ENTITLED TO THE
INTANGIBLE PROPERTY RATE OR CLASSIFICATION. 

BUT THE $66,454.71 OF TAX AND THE STATUTORY GROSS-EARNINGS TAX RATE
OF 2 3/20 PER CENTUM PRODUCE A BASE OF $3,090,916.55, WHICH IS EXACTLY
THE AMOUNT OF GROSS REVENUES REPORTED BY APPELLANT.  TO ASCRIBE A GOING
CONCERN VALUE OF OVER THREE MILLION DOLLARS TO TANGIBLE PROPERTY OF
$129,279 IS ON ITS FACE AN EXTREME ATTRIBUTION.  TO BASE THE VALUE ON
APPELLANT'S GROSS REVENUES IS TO ASSUME THAT EVERY DOLLAR OF ANNUAL
INTAKE ADDS A DOLLAR OF INTANGIBLE VALUE TO THE COMPANY'S ASSETS
REGARDLESS OF HOW MUCH IT COST IN LABOR, INTEREST AND OTHER EXPENSE,
INCLUDING OTHER TAXES, TO PRODUCE IT.  ON THE OTHER HAND, AS A
FORTHRIGHT TAX ON GROSS RECEIPTS, THE TAX INVOLVES NO IRRATIONAL OR
IMPRACTICAL ASSUMPTION. 

WE HAVE SUSTAINED AND WOULD NOW SUSTAIN THE POWER OF A STATE TO TAX,
WITHOUT DISCRIMINATION, ALL PROPERTY WITHIN ITS JURISDICTION AND TO
INCLUDE IN ITS ASSESSMENT, OR TO ASSESS SEPARATELY, THE VALUE ADDED BY
THE PROPERTY'S ASSEMBLAGE INTO A GOING BUSINESS, EVEN IF THAT BUSINESS
BE SOLELY INTERSTATE COMMERCE.  CF. MEYER V. WELLS, FARGO & CO., 223
U.S. 298; BAKER V. DRUESEDOW, 263 U.S. 137; ADAMS EXPRESS CO. V. OHIO
STATE AUDITOR, 166 U.S. 185.  THE IMPACT OF THE TAX IS THUS UPON THE
PROPORTIONATE TOTAL WORTH OF THE PROPERTY.  BUT THE TAX IN DISPUTE HERE
DOES NOT DEPEND ON OWNING ANY PHYSICAL PROPERTY, NOR UPON THE VALUE
THEREOF, BUT WOULD BE LEVIED ON GROSS REVENUES EVEN IF THE COMPANY
FOUND SOME WAY TO DISPENSE WITH ALL LOCAL, PHYSICAL PROPERTY.  THE FACT
THAT ITS MEASURE IS GROSS REVENUE IS CONSISTENT WITH A TAX ON THE
PRIVILEGE OF DOING A VOLUME OF BUSINESS WHICH WOULD YIELD THAT REVENUE,
JUST AS THE LEGISLATURE INDICATED.  BUT WE HAVE DECLINED TO REGARD MERE
GROSS RECEIPTS AS A SOUND MEASURE OF GOING-CONCERN VALUE IN A PRACTICAL
WORLD OF COMMERCE, WHERE VALUES DEPEND ON PROFITABLENESS OF A BUSINESS,
NOT MERELY ITS VOLUME.  CF. UNITED STATES GLUE CO. V. OAK CREEK, 247
U.S. 321, 328-329. 

HERE THE STATE EXCISES EVERY RECEIPT FROM MOVEMENT OF EXPRESS IN
INTERSTATE COMMERCE.  IT TAKES A PORTION OF GROSS REVENUE FROM "ALL
RECEIPTS EARNED IN THIS STATE ON BUSINESS PASSING THROUGH, INTO OR OUT
OF THIS STATE."  IT CONTENDS THAT THIS OBVIOUS BURDEN ON INTERSTATE
COMMERCE IS VALIDATED BY STATE PROTECTION OF A LOCALIZED INCIDENT IN
THE COURSE OF THE BUSINESS.  THE THREE INCIDENTS ARE ORIGINATING THE
INTERSTATE MOVEMENT, WHICH REQUIRES LOCAL PICKUP OF THE PARCELS;
TERMINATING THE MOVEMENT, WHICH REQUIRES DELIVERY, AND MOVEMEMT THROUGH
THE STATE.  IF EACH OF THESE INCIDENTS IS SUFFICIENT WARRANT FOR TAXING
GROSS REVENUES FROM WHOLLY INTERSTATE COMMERCE, A CONCERN DOING A
NATIONWIDE BUSINESS IS VULNERABLE TO A GROSS-REVENUE TAX IN EVERY ONE
OF THE FORTY-EIGHT STATES.  BUT IT IS ARGUED THAT THIS IS PERMISSIBLE,
PROVIDED THE STATES FORMULATE THEIR BURDEN SO AS EACH TO BURDEN IT
PROPORTIONATELY, NOT ENCROACHING ON THE OTHER'S RIGHT TO BURDEN.  IT IS
ENOUGH TO SAY THAT WE RECENTLY HAVE RULED THAT LOCAL INCIDENTS SUCH AS
GATHERING UP OR PUTTING DOWN INTERSTATE COMMODITIES AS AN INTEGRAL PART
OF THEIR INTERSTATE MOVEMENT ARE NOT ADEQUATE GROUNDS FOR A STATE
LICENSE, PRIVILEGE OR OCCUPATION TAX.  SPECTOR MOTOR SERVICE, INC. V.
O'CONNOR, 340 U.S. 602; MEMPHIS STEAM LAUNDRY CLEANER, INC. V. STONE,
342 U.S. 389; MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, 347 U.S.
157; NEW JERSEY BELL TELEPHONE CO. V. STATE BOARD, 280 U.S. 338. 

THE SUPREME COURT OF APPEALS PLACED RELIANCE UPON OUR DISMISSAL OF
THE APPEALS IN BALTIMORE STEAM PACKET CO. V. VIRGINIA, 343 U.S. 923,
AND NORFOLK, BALTIMORE & CAROLINA LINE V. VIRGINIA, 343 U.S. 923, AND
MAY WELL HAVE BEEN MISLED, SINCE WE ASSIGNED NO REASONS AND CITED NO
AUTHORITY.  IN THOSE CASES, THE VIRGINIA COURT HELD AN ALMOST IDENTICAL
TAX TO BE A PROPERTY TAX.  COMMONWEALTH V. BALTIMORE STEAM PACKET CO.,
193 VA. 55, 68 S.E.2D 137.  (FN8)  BUT A VITAL DISTINCTION, SO FAR AS
OUR JURISDICTION IS CONCERNED, WILL ACCOUNT FOR DISMISSAL OF THE
APPEALS.  ONE OF THOSE APPELLANTS WAS A VIRGINIA CORPORATION AND
DERIVED ITS PRIVILEGE TO EXIST FROM THAT STATE.  BOTH WERE ENGAGED IN
INTRASTATE AS WELL AS INTERSTATE COMMERCE AND WERE THEREFORE SUBJECT TO
SOME PRIVILEGE TAX FROM THE STATE.  FOR OUR PURPOSES, IT MATTERED NOT
WHETHER THE RIGHT TO TAX WAS BASED ON THOSE COMPANIES' PRIVILEGES OR ON
THEIR PROPERTY, SINCE THEY WERE TAXABLE ON EITHER BASIS.  THIS FACT
DISTINGUISHES THOSE DISMISSED CASES FROM THE ONE AT BAR AND FROM
SPECTOR MOTOR SERVICE, INC. V. O'CONNOR, SUPRA. THOSE APPEALS DID NOT
QUESTION THE FAIRNESS OF APPORTIONMENT OF REVENUES BETWEEN THE
INTERSTATE AND INTRASTATE BUSINESS SO AS TO REQUIRE SUCH CONSIDERATION
AS WE GAVE IN CENTRAL GREYHOUND LINES V. MEALEY, 334 U.S. 653.  IT WAS
THEREFORE A MISTAKE TO ASSUME THAT THIS COURT, BY DISMISSAL OF THE
APPEALS, APPROVED THE HOLDING OF THE VIRGINIA COURT THAT THIS STATUTE
IMPOSES WHAT IN REALITY IS A PROPERTY TAX THROUGH OTHERWISE NAMED AND
SHAPED.    WE THINK WE CAN ONLY REGARD THIS TAX AS BEING IN FACT AND
EFFECT JUST WHAT THE LEGISLATURE SAID IT WAS - A PRIVILEGE TAX, AND ONE
THAT CANNOT BE APPLIED TO AN EXCLUSIVELY INTERSTATE BUSINESS.    THE
JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR ANY FURTHER PROCEEDING
NOT INCONSISTENT HEREWITH.  REVERSED AND REMANDED. 

FN1  VA. CONST., ART. XII, SEC. 163. 

FN2  CASE NO. 3900, VIRGINIA CORPORATION COMMISSION REPORT (1929), P.
252. 

FN3  RAILWAY EXPRESS AGENCY, INC. V. COMMONWEALTH EX REL. STATE
CORPORATION COMM'N, 153 VA. 498, 150 S.E. 419. 

FN4 282 U.S. 440. 

FN5  THE TAX IN QUESTION IS LAID UNDER VA. CODE, 1950, SEC. 58-547. 
THIS SECTION AND THE SECTION IMMEDIATELY PRECEDING IT READS AS
FOLLOWS: 

"SEC. 58-546.  TAXES ON PROPERTY OF EXPRESS COMPANIES.  - EACH AND
EVERY ONE OF THE EXPRESS COMPANIES DOING BUSINESS IN THIS STATE SHALL,
ON OR BEFORE THE FIRST DAY OF OCTOBER OF EACH AND EVERY YEAR, PAY TO
THE STATE AND TO THE SEVERAL COUNTIES, CITIES AND TOWNS OF THE STATE
WHEREIN THEY MAY HAVE TAXABLE PROPERTIES LOCATED, THE TAXES LEVIED ON
SUCH PROPERTY AS FOLLOWS: 

"(1)  THE STATE TAX ON THE INTANGIBLE PERSONAL PROPERTY (OTHER THAN
SHARES OF STOCK, AND BONDS ISSUED BY COUNTIES, CITIES AND TOWNS OR
OTHER POLITICAL SUBDIVISIONS OF THIS STATE) OWNED BY EVERY SUCH COMPANY
SHALL BE AT THE RATE OF FIFTY CENTS ON EVERY ONE HUNDRED DOLLARS OF THE
ASSESSED VALUE THEREOF: 

"(2)  THE STATE TAX ON THE MONEY OF EVERY SUCH COMPANY SHALL BE
TWENTY CENTS ON EVERY ONE HUNDRED DOLLARS OF THE ASSESSED VALUE
THEREOF: 

"(3)  THERE SHALL BE NO LOCAL LEVIES ASSESSED ON SUCH INTANGIBLE
PERSONAL PROPERTY OR MONEY: 

"(4)  ON THE REAL ESTATE AND TANGIBLE PERSONAL PROPERTY OF EVERY SUCH
COMPANY THERE SHALL BE LOCAL LEVIES AT THE SAME RATE OR RATES AS ARE
ASSESSED UPON OTHER REAL ESTATE AND TANGIBLE PERSONAL PROPERTY LOCATED
IN SUCH LOCALITIES, THE PROCEEDS OF WHICH LOCAL LEVIES SHALL BE APPLIED
AS IS PROVIDED BY LAW. 

"THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE ASSESSMENT FOR THE
TAX YEAR NINETEEN HUNDRED FORTY-NINE AND ANNUALLY THEREAFTER, UNLESS
OTHERWISE PROVIDED BY LAW. 

"SEC. 58-547.  ANNUAL LICENSE TAX.  - EVERY SUCH COMPANY, FOR THE
PRIVILEGE OF DOING BUSINESS IN THIS STATE, IN ADDITION TO THE ANNUAL
REGISTRATION FEE AND THE PROPERTY TAX AS HEREIN PROVIDED, SHALL PAY AN
ANNUAL LICENSE TAX AS FOLLOWS: 

"THE TAX SHALL BE EQUAL TO TWO AND THREE-TWENTIETHS PER CENTUM UPON
THE GROSS RECEIPTS FROM OPERATIONS OF SUCH COMPANIES AND EACH OF THEM
WITHIN THIS STATE.  WHEN SUCH COMPANIES ARE OPERATING PARTLY WITHIN AND
PARTLY WITHOUT THIS STATE, THE GROSS RECEIPTS WITHIN THIS STATE SHALL
BE DEEMED TO BE ALL RECEIPTS ON BUSINESS BEGINNING AND ENDING WITHIN
THIS STATE AND ALL RECEIPTS EARNED IN THIS STATE ON BUSINESS PASSING
THROUGH, INTO OR OUT OF THIS STATE; PROVIDED, UNLESS OTHERWISE CLEARLY
SHOWN, SUCH LAST-MENTIONED RECEIPTS SHALL BE DEEMED TO BE THAT PORTION
OF THE TOTAL RECEIPTS FROM SUCH BUSINESS WHICH THE ENTIRE MILEAGE OVER
WHICH SUCH BUSINESS IS DONE BEARS TO THE MILEAGE OPERATED WITHIN THIS
STATE. 

"THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE ASSESSMENT FOR THE
TAX YEAR NINETEEN HUNDRED FORTY-NINE AND ANNUALLY THEREAFTER, UNLESS
OTHERWISE PROVIDED BY LAW." 

FN6  CASES NOS. 10,629 AND 10,767, VIRGINIA CORPORATION COMMISSION
REPORT (1952).  THE COMMISSION WAS QUOTING FROM THE OPINION OF THE
SUPREME COURT OF APPEALS IN COMMONWEALTH V. BALTIMORE STEAM PACKET CO.,
193 VA. 55, 70, 68 S.E.2D 137, 147. 

FN7  THE FIGURES DISCUSSED IN THE TEXT ARE SUMMARIZED IN THE
FOLLOWING CHART FOR THE YEAR 1951. 

TYPES OF PROPERTY            STATUTORY TAX       ASSESSED VALUE OF
TAXES PAID BY 

TAXED     RATE                APPELLANT'S PROPERTY     APPELLANT 

1.  INTANGIBLE PERSONAL      50 CENTS ON         UNKNOWN
($13,290,942.00  UNKNOWN ($66,454.71 

PROPERTY  EVERY $100          IF DISPUTED TAX          IF DISPUTED
TAX IS

                                               IS INTANGIBLE
INTANGIBLE

             PROPERTY TAX)            PROPERTY TAX) 

2. MONEY                    20 CENTS ON         $109,906.38
$219.81

                           EVERY $100 

3.  REAL ESTATE AND          LOCAL LEVIES        $129,279.00
$3,389.65 

TANGIBLE PERSONAL            (AVERAGE OF 2.6 

PROPERTY                     PER CENTUM) 

4.  GROSS RECEIPTS           2 3/20 PER CENTUM   $3,090,916.55
$66,454.71 

FN8  THE CORPORATION COMMISSION COMMENTED ON THE BALTIMORE STEAM
PACKET CASE IN THIS MANNER:  "SO, WHEN THE VIRGINIA SUPREME COURT OF
APPEALS HELD THAT THE LICENSE TAXES ON STEAMSHIP AND EXPRESS COMPANIES
WERE PROPERTY TAXES, ALL DANGER OF AN ADVERSE DECISION IN THE SUPREME
COURT OF THE UNITED STATES WAS AVERTED, AND THAT COURT DISMISSED THE
APPEAL WITHOUT COMMENT, PRESUMABLY ON THE GROUND THAT NO FEDERAL
QUESTION WORTH DISCUSSING WAS INVOLVED."  CASES NOS. 10,629 AND 10,767,
VIRGINIA CORPORATION COMMISSION REPORT (1952). 

MR. JUSTICE CLARK WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR.
JUSTICE DOUGLAS JOIN, DISSENTING. 

THE TAX IN QUESTION IS NONDISCRIMINATORY, FAIRLY APPORTIONED, AND NOT
EXCESSIVE.  THAT MUCH IS CONCEDED BY APPELLANT.  WHATEVER THE COURT'S
MATHEMATICS MAY PROVE, IT DOES NOT ESTABLISH THAT THE TAX IS UNFAIR IN
ANY RESPECT.  IN SPECTOR MOTOR SERVICE, INC. V. O'CONNOR, 340 U.S. 602,
610-615 (1951), I REASONED THAT A STATE TAX WITH SUCH ATTRIBUTES MAY
PROPERLY BE LEVIED AGAINST A CORPORATION WHICH OBVIOUSLY COULD NOT
ENGAGE IN INTERSTATE COMMERCE IN THE STATE WITHOUT USING THE FACILITIES
AND SERVICES OF THE STATE.  I WOULD UPHOLD THE TAX HERE ON THE SAME
GROUNDS.  BUT EVEN ACCEPTING THE COURT'S APPROACH IN SPECTOR, THE
INSTANT TAX IS VALID. 

SPECTOR HELD THAT A STATE TAX IMPOSED ON A FOREIGN CORPORATION
ENGAGED SOLELY IN INTERSTATE COMMERCE FOR "THE PRIVILEGE OF CARRYING ON
OR DOING BUSINESS IN THE STATE" VIOLATES THE COMMERCE CLAUSE OF THE
UNITED STATES CONSTITUTION.  THE "OPERATING INCIDENCE" OF THE TAX -
"THE PRIVILEGE OF CARRYING ON OR DOING BUSINESS IN THE STATE" - WAS
DETERMINED BY THE STATE COURT AND NOT QUESTIONED BY THIS COURT.  THAT
LABEL FORMED THE NUB OF THE COURT'S RATIONALE IN STRIKING DOWN THE
TAX.  THAT DECISION DID NOT PURPORT TO COVER A TAX BEARING A DIFFERENT
NAME.  IN FACT, THE COURT THERE SPECIFICALLY NOTED THAT THE TAX WAS NOT
"COLLECTED IN LIEU OF AN AD VALOREM PROPERTY TAX"; PRESUMABLY HAD SUCH
BEEN THE CASE THE TAX WOULD HAVE BEEN UPHELD.  ID., AT 607. 

THE SUPREME COURT OF APPEALS OF VIRGINIA HAS HELD THAT THE INSTANT
TAX IS AN AD VALOREM TAX ON INTANGIBLE PROPERTY; THE "OPERATING
INCIDENCE" OF THE TAX HAS BEEN LABELED THE "GOING CONCERN" VALUE OF
APPELLANT'S PHYSICAL ASSETS IN VIRGINIA.  THE STATE COURT SPECIFICALLY
HELD THAT THE TAX "IS NOT A TAX UPON THE PRIVILEGE OF CARRYING ON A
BUSINESS EXCLUSIVELY INTERSTATE IN CHARACTER  ...  ."  194 VA. 757, 760
761, 75 S.E.2D 61, 63.  HENCE, IF WE ACCEPT THE DETERMINATION OF THE
STATE COURT, THERE IS LITTLE QUESTION BUT THAT THE TAX IS VALID EVEN
UNDER SPECTOR. 

THIS COURT, HOWEVER, REFUSES TO ACCEPT THE VIRGINIA COURT'S
DETERMINATION AND ASSIGNS TO THE VIRGINIA TAX THE SAME "PRIVILEGE"
LABEL THAT CONDEMNED THE TAX IN SPECTOR.  ALTHOUGH THE COURT REFUSED TO
PIERCE THE LABEL IN SPECTOR, I DO NOT DISPUTE ITS RIGHT TO RE-EXAMINE A
LABEL AFFIXED BY A STATE COURT.  IN SOME CASES THE LABEL MAY BE WHOLLY
INCONSISTENT WITH THE STATE''S TAXING SCHEME; OR IT MAY BE TRUE -
THOUGH I DOUBT IT - THAT A STATE COURT MIGHT DELIBERATELY MISBRAND A
TAX TO AVOID DECISIONS OF THIS COURT.  BUT NEITHER FACT JUSTIFIES THE
COURT'S REFUSAL TO ACCEPT THE DETERMINATION OF THE STATE COURT IN THIS
CASE.  THE NAME GIVEN THE TAX BY THE VIRGINIA COURT MESHES WITH THE
STATE'S TAXING SCHEME.  AND I DO NOT BELIEVE THAT THE VIRGINIA COURT
DELIBERATELY MISLABELED THE TAX.  INDEED, THE HOLDING OF THE STATE
COURT IS PERFECTLY CONSISTENT WITH ITS EARLIER EXPRESSIONS ON THE
SUBJECT AND THOSE OF THE STATE CORPORATION COMMISSION, SOME ANTEDATING
SPECTOR.  COMMONWEALTH V. BALTIMORE STEAM PACKET CO., 193 VA. 55, 68
S.E.2D 137 (1951), APPEAL DISMISSED, 343 U.S. 923 (1952); CITY OF
RICHMOND V. COMMONWEALTH, 188 VA. 600, 50 S.E.2D 654 (1948).  MOREOVER,
THIS COURT DOES NOT QUESTION THE EXISTENCE OF A GOING-CONCERN VALUE
ASIDE FROM THE VALUE OF A BUSINESS UNIT'S PHYSICAL ASSETS.  NOR DOES
APPELLANT; IN ITS BRIEF APPELLANT "FREELY ADMITS THAT A GOING BUSINESS,
IF OPERATED AT A PROFIT OR IF THERE IS A REASONABLE EXPECTATION OF
EARNING A PROFIT ON FUTURE OPERATIONS, MAY HAVE A GOING CONCERN OR WHAT
IS SOMETIMES CALLED AN 'ORGANIZATION' VALUE."   SINCE APPELLANT DOES
NOT CONTEND THAT IT IS NOT OPERATING AT A PROFIT OR THAT IT HAS NO
REASONABLE EXPECTATION OF EARNING A PROFIT IN THE FUTURE, EVEN IT WOULD
BE FORCED TO ADMIT, AS MUST THE MAJORITY OF THIS COURT, THAT A
SUBSTANTIAL ELEMENT OF PROPERTY VALUES IS BEING IMMUNIZED FROM THE
REACH OF VIRGINIA'S CURRENT TAXES WHICH ARE NEITHER EXCESSIVE NOR
UNFAIR. 

FROM 1942 UNTIL SPECTOR, APPELLANT HAD RECOGNIZED THE VALIDITY OF THE
TAX AND PAID IT.  AS A RESULT OF THE IMMUNITY GIVEN BY TODAY'S
DECISION, APPELLANT AND OTHERS SIMILARLY SITUATED RECEIVE A WINDFALL IN
THE FORM OF A VALID CLAIM FOR TAX REFUNDS EXTENDING BACK AS FAR AS
LIMITATIONS WILL PERMIT.  THIS IS THE RESULT OF TODAY'S TWIST TO THE
SPECTOR DOCTRINE.  IF THE LABEL MAKES THE TAX INVALID, THE LABEL IS
ACCEPTED; IF THE LABEL VALIDATES THE TAX, THE COURT WILL PIERCE THE
LABEL.  THIS APPROACH IS RATHER HARD ON THE STATES AND CREATES
ADDITIONAL OBSTACLES FOR THEM IN THEIR CONTINUING EFFORT TO MAKE PURELY
INTERSTATE BUSINESS UNITS PAY A FAIR SHARE OF THE COST OF STATE
FACILITIES AND SERVICES ESSENTIAL TO THE FUNCTIONING OF THESE
ENTERPRISES. 

IN SUM, VIRGINIA'S TAX SHOULD NOT BE HELD UNCONSTITUTIONAL MERELY
BECAUSE OF THE NAME THE STATE'S LEGISLATURE GAVE IT.  SINCE NO ONE
ASSERTS THAT THE AMOUNT OF THE TAX IS UNFAIR OR DISCRIMINATORY,
PRESUMABLY THE SAME TAX ASSESSED UNDER A DIFFERENT NAME BY THE USE OF
DIFFERENT WORDS WOULD BE UPHELD.  THE CONSTITUTIONALITY OF A STATE'S
TAX LAWS SHOULD NOT DEPEND ON THE ABILITY OF STATE LEGISLATURES TO
FORESEE WHAT TAX LANGUAGE WOULD MOST LIKELY MEET THIS COURT'S
APPROVAL. 
..END :

















FRANKLIN NATIONAL BANK OF FRANKLIN SQUARE V. NEW YORK 347 U.S. 373 


NO. 427.  ARGUED MARCH 9-10, 1954 - DECIDED APRIL 5, 1954 - 305 N.Y.
453, 113 N.E.2D 796, REVERSED. 


INSOFAR AS IT FORBIDS NATIONAL BANKS TO USE THE WORD "SAVING" OR
"SAVINGS" IN THEIR BUSINESS OR ADVERTISING, THE NEW YORK STATUTE HERE
INVOLVED IS INVALID, BECAUSE IT CONFLICTS WITH FEDERAL LAW EXPRESSLY
AUTHORIZING NATIONAL BANKS TO RECEIVE SAVINGS DEPOSITS AND TO EXERCISE
INCIDENTAL POWERS.  PP. 374-379. 

(A)  THE PROVISION OF SEC. 24 OF THE FEDERAL RESERVE ACT AUTHORIZING
NATIONAL BANKS TO "CONTINUE HEREAFTER AS HERETOFORE TO RECEIVE TIME AND
SAVINGS DEPOSITS" IS DECLARATORY OF THE RIGHT OF NATIONAL BANKS TO
ENTER INTO OR REMAIN IN THAT TYPE OF BUSINESS, AND THEIR AUTHORITY TO
RECEIVE SAVINGS DEPOSITS IS NOT LIMITED OR QUALIFIED BY THE EXPRESSION
"CONTINUE HEREAFTER AS HERETOFORE."  P. 377. 

(B)  NOR ARE NATIONAL BANKS PRECLUDED FROM ADVERTISING FOR THE
SAVINGS DEPOSITS WHICH THEY ARE EXPRESSLY AUTHORIZED TO ACCEPT.  PP.
377-378. 

(C)  CONGRESS DID NOT INTEND TO MAKE THIS PHASE OF NATIONAL BANKING
SUBJECT TO LOCAL RESTRICTIONS BECAUSE OF THE SPECIAL SIGNIFICANCE
ATTACHED TO THE WORD "SAVINGS" IN SOME STATES.  P. 378. 

FRANKLIN NATIONAL BANK OF FRANKLIN SQUARE V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

OPINION OF THE COURT BY MR. JUSTICE JACKSON, ANNOUNCED BY MR. JUSTICE
FRANKFURTER. 

THIS APPEAL FROM THE COURT OF APPEALS OF NEW YORK PRESENTS THE NARROW
QUESTION WHETHER FEDERAL STATUTES WHICH AUTHORIZE NATIONAL BANKS TO
RECEIVE SAVINGS DEPOSITS CONFLICT WITH NEW YORK LEGISLATION WHICH
PROHIBITS THEM FROM USING THE WORD "SAVING" OR "SAVINGS" IN THEIR
ADVERTISING OR BUSINESS.  WE THINK THE FEDERAL AND STATE STATUTES ARE
INCOMPATIBLE, AND IN SUCH CIRCUMSTANCES THE POLICY OF THE STATE MUST
YIELD. 

IT IS THE POLICY OF NEW YORK TO CHARTER AND FOSTER THE MUTUAL SAVINGS
BANK, A NONPROFIT INSTITUTION WHOSE EARNINGS INURE TO THE BENEFIT OF
DEPOSITORS RATHER THAN TO STOCKHOLDERS.  THESE INSTITUTIONS HAVE A LONG
HISTORY AS RELATIVELY STABLE AND SAFE DEPOSITARIES FOR THE
ACCUMULATIONS OF THRIFTY NEW YORKERS AND AS A SOURCE OF CREDIT FOR
LIMITED USES.  THEY HAVE GROWN TO BE AN IMPORTANT PART OF NEW YORK'S
BANKING AND ECONOMIC STRUCTURE.  THAT STATE ALSO CHARTERS THE SAVINGS
AND LOAN ASSOCIATION, AN INSTITUTION OF A DIFFERENT TYPE, INTENDED TO
SERVE SOMEWHAT SIMILAR ENDS.  THE LEGISLATURE WAS CONCERNED LEST
COMMERCIAL BANKS, IN SEEKING TO INDUCE DEPOSITS OF THE SAME CHARACTER,
SO USE THE WORD "SAVINGS" AS TO LEAD UNINFORMED AND INDISCRIMINATING
PERSONS TO BELIEVE THAT THEY WERE DEALING WITH THE CHARTERED SAVINGS
INSTITUTIONS.  HENCE, BY ITS BANKING LAW, NEW YORK HAS FORBIDDEN USE OF
THE WORD "SAVINGS," OR ITS VARIANTS, BY ANY BANKS OTHER THAN ITS OWN
CHARTERED SAVINGS BANKS AND SAVINGS AND LOAN ASSOCIATIONS.  (FN1) 

HOWEVER, THE FEDERAL GOVERNMENT IS A RIVAL CHARTERING AUTHORITY FOR
BANKS.  SINCE MCCULLOCH V. MARYLAND, 4 WHEAT.  316, IT HAS NOT BEEN
OPEN TO QUESTION THAT THE FEDERAL GOVERNMENT MAY CONSTITUTIONALLY
CREATE AND GOVERN SUCH INSTITUTIONS WITHIN THE STATES.  THE UNITED
STATES HAS SET UP A SYSTEM OF NATIONAL BANKS AS FEDERAL
INSTRUMENTALITIES TO PERFORM VARIOUS FUNCTIONS SUCH AS PROVIDING
CIRCULATING MEDIUM AND GOVERNMENT CREDIT, AS WELL AS FINANCING COMMERCE
AND ACTING AS PRIVATE DEPOSITARIES.  SOME OF THEIR FUNCTIONS,
ESPECIALLY AS A SOURCE FOR FEDERAL CREDIT, DEPEND UPON THEIR SUCCESS IN
ATTRACTING PRIVATE DEPOSITS.  THAT THESE FEDERAL INSTITUTIONS MAY BE AT
NO DISADVANTAGE IN COMPETITION WITH STATE-CREATED INSTITUTIONS, THE
FEDERAL GOVERNMENT HAS FREQUENTLY EXPANDED THEIR FUNCTIONS AND
AUTHORITY.  OF SUCH NATURE ARE THE MEASURES NOW BEFORE US. 

THE FEDERAL RESERVE ACT PROVIDES THAT A NATIONAL BANK "MAY CONTINUE
HEREAFTER AS HERETOFORE TO RECEIVE TIME AND SAVINGS DEPOSITS AND TO PAY
INTEREST ON THE SAME, BUT THE RATE OF INTEREST WHICH SUCH ASSOCIATION
MAY PAY UPON SUCH TIME DEPOSITS OR UPON SAVINGS OR OTHER DEPOSITS SHALL
NOT EXCEED THE MAXIMUM RATE AUTHORIZED BY LAW TO BE PAID UPON SUCH
DEPOSITS BY STATE BANKS OR TRUST COMPANIES ORGANIZED UNDER THE LAWS OF
THE STATE IN WHICH SUCH ASSOCIATION IS LOCATED."  (FN2)  THE ACT
AUTHORIZES THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM TO MAKE
NECESSARY RULES AND REGULATIONS, (FN3) WHICH THE BOARD HAS DONE BY
DEFINING SUCH TERMS AS "TIME DEPOSITS" AND "SAVINGS DEPOSITS."  (FN4)
THE NATIONAL BANK ACT AUTHORIZES NATIONAL BANKS TO RECEIVE DEPOSITS
WITHOUT QUALIFICATION OR LIMITATION, AND IT PROVIDES THAT THEY SHALL
POSSESS "ALL SUCH INCIDENTAL POWERS AS SHALL BE NECESSARY TO CARRY ON
THE BUSINESS OF BANKING; BY DISCOUNTING AND NEGOTIATING PROMISSORY
NOTES, DRAFTS, BILLS OF EXCHANGE, AND OTHER EVIDENCES OF DEBT; BY
RECEIVING DEPOSITS; BY BUYING AND SELLING EXCHANGE, COIN, AND BULLION;
BY LOANING MONEY ON PERSONAL SECURITY; AND BY OBTAINING, ISSUING, AND
CIRCULATING NOTES ACCORDING TO THE PROVISIONS OF THIS CHAPTER."  (FN5) 

APPELLANT, BELIEVING IT WAS AUTHORIZED BY THE FEDERAL GOVERNMENT TO
DO SO, USED THE WORD "SAVING" AND "SAVINGS" IN ADVERTISING, IN SIGNS
DISPLAYED IN THE BANK, ON ITS DEPOSIT AND WITHDRAWAL SLIPS, AND IN ITS
ANNUAL REPORTS.  IT IS BEYOND QUESTION THAT APPELLANT VIOLATED THE
STATE'S PROHIBITION IF IT IS A VALID ONE. 

THE ATTORNEY GENERAL OF THE STATE INITIATED THIS CASE BY A COMPLAINT
ALLEGING SUCH VIOLATIONS, SEEKING A BROAD INJUNCTION.  THE TRIAL
ACCUMULATED A LARGE RECORD DEVOTED MAINLY TO THE MERITS AND DEMERITS OF
THE NEW YORK LEGISLATION AND ITS CONSEQUENCES UPON BANKS AND
DEPOSITORS.  THE TRIAL COURT FOUND NO PURPOSEFUL DECEPTION OF THE
PUBLIC.  IT HELD THAT THE ADVERTISING AND OTHER USE OF THE FORBIDDEN
TERMS WERE IN PURSUIT OF IMPLIED AND INCIDENTAL POWERS CONFERRED UPON
NATIONAL BANKS BY THE ACTS OF CONGRESS AND THAT THE NEW YORK STATUTE IN
CONFLICT WITH THEM MUST YIELD.  THE APPELLATE DIVISION DISAGREED AND
DIRECTED A PERMANENT INJUNCTION PROHIBITING THE USE OF THE TERM.  THE
COURT OF APPEALS AFFIRMED, AND WE NOTED PROBABLE JURISDICTION OF AN
APPEAL.  (FN6) 

WE ARE UNABLE TO SUPPORT THE CONTENTION THAT THE AUTHORIZATION FOR
NATIONAL BANKS TO RECEIVE SAVINGS DEPOSITS IS LIMITED OR QUALIFIED
BECAUSE OF THE EXPRESSION THAT THEY MAY "CONTINUE HEREAFTER AS
HERETOFORE" TO DO SO.  IT APPEARS THAT PREVIOUS TO THE ENACTMENT,
ACCEPTANCE OF SUCH ACCOUNTS BY NATIONAL BANKS HAD BEEN USUAL BUT WERE
NOT EXPRESSLY AUTHORIZED.  WE DO NOT THINK THE FEDERAL RESERVE ACT
SHOULD BE CONSTRUED TO FREEZE INDIVIDUAL BANKS OR THOSE LOCATED WITHIN
ANY STATE TO THE CUSTOMS AND PRACTICES PRECEDING THE STATUTE.  WE READ
THE ACT AS DECLARING THE RIGHT OF A NATIONAL BANK TO ENTER INTO OR
REMAIN IN THAT TYPE OF BUSINESS.  THAT HAS BEEN THE ADMINISTRATIVE
CONSTRUCTION, AND WE THINK IT IS CORRECT. 

NOR CAN WE CONSTRUE THE TWO FEDERAL ACTS AS PERMITTING ONLY A PASSIVE
ACCEPTANCE OF DEPOSITS THRUST UPON THEM.  MODERN COMPETITION FOR
BUSINESS FINDS ADVERTISING ONE OF THE MOST USUAL AND USEFUL OF
WEAPONS.  WE CANNOT BELIEVE THAT THE INCIDENTAL POWERS GRANTED TO
NATIONAL BANKS SHOULD BE CONSTRUED SO NARROWLY AS TO PRECLUDE THE USE
OF ADVERTISING IN ANY BRANCH OF THEIR AUTHORIZED BUSINESS.  IT WOULD
REQUIRE SOME AFFIRMATIVE INDICATION TO JUSTIFY AN INTERPRETATION THAT
WOULD PERMIT A NATIONAL BANK TO ENGAGE IN A BUSINESS BUT GAVE NO RIGHT
TO LET THE PUBLIC KNOW ABOUT IT. 

APPELLEE DOES NOT OBJECT TO NATIONAL BANKS TAKING SAVINGS DEPOSITS OR
EVEN TO THEIR ADVERTISING THAT FACT SO LONG AS THEY DO NOT USE THE WORD
"SAVINGS."  IT TAKES THE POSITION THAT THE WORD IS A MISNOMER IN NEW
YORK BECAUSE DEPOSITORS THERE, AS A RESULT OF THE STATE STATUTE, HAVE
COME TO THINK OF SAVINGS ACCOUNTS AS SOMETHING ENTIRELY DIFFERENT FROM
THOSE TO WHICH THE FEDERAL ACT IS REFERRING.  REGARDLESS OF WHETHER NEW
YORKERS ARE REALLY MISLED BY THE DESCRIPTION, THE FACT IS THAT CONGRESS
HAS GIVEN A PARTICULAR LABEL TO THIS TYPE OF ACCOUNT.  WHATEVER
PECULIAR MEANING THE WORD MAY HAVE IN NEW YORK, IT IS A WORD WHICH
APTLY DESCRIBES, IN A NATIONAL SENSE, THE TYPE OF BUSINESS CARRIED ON
BY THESE NATIONAL BANKS.  THEY DO ACCEPT AND PAY INTEREST ON TIME
DEPOSITS OF PEOPLE'S SAVINGS, AND THEY MUST BE DEEMED TO HAVE THE RIGHT
TO ADVERTISE THAT FACT BY USING THE COMMONLY UNDERSTOOD DESCRIPTION
WHICH CONGRESS HAS SPECIFICALLY SELECTED.  WE FIND NO INDICATION THAT
CONGRESS INTENDED TO MAKE THIS PHASE OF NATIONAL BANKING SUBJECT TO
LOCAL RESTRICTIONS, AS IT HAS DONE BY EXPRESS LANGUAGE IN SEVERAL OTHER
INSTANCES.  (FN7) 

THERE APPEARS TO BE A CLEAR CONFLICT BETWEEN THE LAW OF NEW YORK AND
THE LAW OF THE FEDERAL GOVERNMENT.  WE CANNOT RESOLVE CONFLICTS OF
AUTHORITY BY OUR JUDGMENT AS TO THE WISDOM OR NEED OF EITHER
CONFLICTING POLICY.  THE COMPACT BETWEEN THE STATES CREATING THE
FEDERAL GOVERNMENT RESOLVES THEM AS A MATTER OF SUPREMACY.  (FN8)
HOWEVER WISE OR NEEDFUL NEW YORK'S POLICY, A MATTER AS TO WHICH WE
EXPRESS NO JUDGMENT, IT MUST GIVE WAY TO THE CONTRARY FEDERAL POLICY. 

THE JUDGMENT OF THE NEW YORK COURT OF APPEALS IS REVERSED AND THE
CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  MCKINNEY'S N.Y. LAWS, BANKING LAW, SEC. 258(1), READS:  "NO
BANK, TRUST COMPANY, NATIONAL BANK, INDIVIDUAL, PARTNERSHIP,
UNINCORPORATED ASSOCIATION OR CORPORATION OTHER THAN A SAVINGS BANK OR
A SAVINGS AND LOAN ASSOCIATION SHALL MAKE USE OF THE WORD 'SAVING' OR
'SAVINGS' OR THEIR EQUIVALENT IN ITS BANKING OR FINANCIAL BUSINESS, OR
USE ANY ADVERTISEMENT CONTAINING THE WORD 'SAVING' OR 'SAVINGS,' OR
THEIR EQUIVALENT IN RELATION TO ITS BANKING OR FINANCIAL BUSINESS, NOR
SHALL ANY INDIVIDUAL OR CORPORATION OTHER THAN A SAVINGS BANK IN ANY
WAY SOLICIT OR RECEIVE DEPOSITS AS A SAVINGS BANK; BUT NOTHING HEREIN
SHALL BE CONSTRUED TO PROHIBIT THE USE OF THE WORD 'SAVINGS' IN THE
NAME OF THE SAVINGS AND LOAN BANK OF THE STATE OF NEW YORK OR IN THE
NAME OF A TRUST COMPANY ALL OF THE STOCK OF WHICH IS OWNED BY NOT LESS
THAN TWENTY SAVINGS BANKS.  ANY BANK, TRUST COMPANY, NATIONAL BANK,
INDIVIDUAL, PARTNERSHIP, UNINCORPORATED ASSOCIATION OR CORPORATION
VIOLATING THIS PROVISION SHALL FORFEIT TO THE PEOPLE OF THE STATE FOR
EVERY OFFENSE THE SUM OF ONE HUNDRED DOLLARS FOR EVERY DAY SUCH OFFENSE
SHALL BE CONTINUED." 

FN2  38 STAT. 273, 44 STAT. 1232, AS AMENDED, 12 U.S.C. (1952 ED.) 
SEC.  371. 

FN3  38 STAT. 262, 12 U.S.C. (1952 ED.)  SEC.  248(I).  SEE ALSO 49
STAT. 714, 12 U.S.C.  (1952 ED.) SEC. 461. 

FN4  12 CFR SECS. 204.1, 217.1. 

FN5  R.S. SEC. 5136, 12 U.S.C. (1952 ED.)  SEC.  24 (SEVENTH). 

FN6  200 MISC. 557, 105 N.Y.S.2D 81, REV'D, 281 APP. DIV. 757, 118
N.Y.S.2D 210, AFF'D, 305 N.Y. 453, 113 N.E.2D 796, PROBABLE
JURISDICTION NOTED, 346 U.S. 908.  APPELLEE INCLUDED IN ITS COMPLAINT A
CHARGE THAT APPELLANT SOLICITED BUSINESS AS A "SAVINGS BANK."  HOWEVER,
THE NEW YORK COURT OF APPEALS HELD THAT THERE WAS NO EVIDENCE OF SUCH
PRACTICE.  THEREFORE, THE SOLE QUESTION BEFORE THIS COURT RELATES TO
APPELLANT'S OTHER USE OF THE PROHIBITED WORDS IN ITS ADVERTISING OR
BUSINESS. 

FN7  E.G., R.S. SEC. 5155, 12 U.S.C. (1952 ED.)  SEC.  36(C)
(ESTABLISHMENT OF BRANCH BANKS); R.S. SEC. 5136, 12 U.S.C. (1952 ED.) 
SEC.  24(EIGHTH) (CONTRIBUTIONS TO CHARITABLE INSTRUMENTALITIES); R.S.
SEC. 5153, 12 U.S.C. (1952 ED.)  SEC.  90 (SECURITY FOR THE DEPOSIT OF
STATE FUNDS); R.S. SEC. 5197, 12 U.S.C. (1952 ED.)  SEC.  85, AND PART
OF THE SECTION INVOLVED IN THIS CASE, 38 STAT. 273, 44 STAT. 1232, AS
AMENDED, 12 U.S.C. (1952 ED.)  SEC.  371 (INTEREST RATES).  EVEN IN THE
ABSENCE OF SUCH EXPRESS LANGUAGE, NATIONAL BANKS MAY BE SUBJECT TO SOME
STATE LAWS IN THE NORMAL COURSE OF BUSINESS IF THERE IS NO CONFLICT
WITH FEDERAL LAW.  CF. ANDERSON NATIONAL BANK V. LUCKETT, 321 U.S. 233;
MCCLELLAN V. CHIPMAN, 164 U.S. 347. 

FN8  EASTON V. IOWA, 188 U.S. 220, 229-230; DAVIS V. ELMIRA SAVINGS
BANK, 161 U.S. 275, 283. 

MR. JUSTICE REED, DISSENTING. 

I DISSENT.  IT SHOULD BE NOTED THAT THE NEW YORK STATUTE, NOTE 1 OF
THE COURT'S OPINION, LIMITS THE USE OF THE WORDS "SAVING" OR "SAVINGS"
IN RELATION TO THEIR BANKING BUSINESS TO CERTAIN TYPES OF NEW YORK
FINANCIAL INSTITUTIONS.  THESE ARE THOSE THAT ARE MUTUAL IN CHARACTER
AS DISTINGUISHED FROM STOCKHOLDER-OWNED.  SUCH MUTUAL INSTITUTIONS CAN
AND DO PAY LARGER RETURNS ON DEPOSITS IN NEW YORK THAN THE COMMERCIAL
STOCK-TYPE BANKS, STATE OR NATIONAL, BOTH OF WHICH ARE BARRED BY THE
NEW YORK STATUTE FROM USING THE WORD "SAVINGS" "IN RELATION TO BANKING
OR FINANCIAL BUSINESS."  THE MUTUAL BANKS HAVE BEEN SUCCESSFUL IN
ATTRACTING A LARGE PROPORTION OF SAVINGS DEPOSITS FOR OVER A CENTURY. 
THEY HAVE A REMARKABLE RECORD FOR SOUNDNESS IN FINANCE AND PROFITABLE
OPERATION FOR THE BENEFIT OF THE DEPOSITORS.  THE PURPOSE OF THE NEW
YORK LAW IS TO RESERVE THE USE OF THE WORD "SAVINGS" TO IDENTIFY THE
MUTUAL TYPE OF BANK OPERATION FOR THE PUBLIC, JUST AS THE FEDERAL
BANKING LAWS RESERVE THE NAME "NATIONAL" FOR A CERTAIN TYPE OF BANK
ORGANIZED UNDER FEDERAL LAW. 

THE COURT'S OPINION PERMITS THE NATIONAL BANKS TO TRADE UPON THE GOOD
NAME OF THE SAVINGS BANKS TO SECURE DEPOSITS OF THAT TYPE.  NOW THEY
MAY ADVERTISE "A SAVINGS BANK" UNDER THEIR CORPORATE NAME; THEIR
DEPOSIT SLIPS MAY SAY "SAVINGS ACCOUNT."  AS NO FEDERAL STATUTE
EXPRESSLY AUTHORIZES THE NATIONAL BANKS TO USE THE WORDS "SAVING" OR
"SAVINGS" IN THEIR ADVERTISEMENTS, I THINK THEY MUST CONFORM TO THE NEW
YORK LAW FOR THE PROTECTION OF THE PUBLIC FROM MISUNDERSTANDING.  I
WOULD NOT IMPLY A FEDERAL PRIVILEGE TO USE "SAVINGS" IN ADVERTISING
FROM THE FACT THAT NATIONAL BANKS MAY ACCEPT SAVINGS DEPOSITS.  THE
CASES CITED BY THE COURT IN NOTE 7 SUSTAIN THAT VIEW.  I KNOW OF NO
PRECEDENTS THAT APPROVE SUCH A LIMITATION ON STATE POWER AS THE COURT
NOW ANNOUNCES. 
..END :





UNITED STATES V. DIXON 347 U.S. 381 


NO. 500.  ARGUED MARCH 12, 1954 - DECIDED APRIL 5, 1954 - REVERSED. 


POSSESS ANY PROPERTY INTENDED FOR USE IN VIOLATING THE PROVISIONS OF
"THIS PART" OR THE INTERNAL REVENUE LAWS AND PROVIDES FOR THE SEIZURE
AND FORFEITURE OF SUCH PROPERTY.  SECTION 3115 OF THE SAME "PART" MAKES
PUNISHABLE BY FINE OR IMPRISONMENT OR BOTH A VIOLATION OF "ANY OF THE
PROVISIONS OF THIS PART" FOR WHICH NO "SPECIAL PENALTY" IS PROVIDED. 
HELD:  READ TOGETHER, SECS. 3115 AND 3116 MAKE IT A CRIMINAL OFFENSE TO
POSSESS PROPERTY INTENDED FOR USE IN PRODUCING LIQUOR WITHOUT THE
PAYMENT OF TAXES THEREON IN VIOLATION OF THE CODE.  PP. 381-386. 

(A) A DIFFERENT RESULT IS NOT REQUIRED BY THE FACTS THAT SEC. 3115 IS
APPLICABLE ONLY WHERE NO "SPECIAL PENALTY" IS PROVIDED FOR THE OFFENSE
AND SEC. 3116 PROVIDES FOR THE SEIZURE AND FORFEITURE OF SUCH
PROPERTY.  P. 385. 

(B)  NOR IS A DIFFERENT RESULT REQUIRED BY THE FACT THAT SEC. 3116 IS
CAPTIONED "FORFEITURES AND SEIZURES."  PP. 385-386. 

UNITED STATES V. DIXON. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION HERE IS WHETHER SECS. 3116 AND 3115 OF THE INTERNAL
REVENUE CODE MAKE IT A CRIMINAL OFFENSE TO POSSESS PROPERTY INTENDED
FOR USE IN PRODUCING NONTAXPAID DISTILLED SPIRITS IN VIOLATION OF THE
CODE.  APPELLEE WAS INDICTED UNDER THESE SECTIONS FOR WILFULLY AND
KNOWINGLY POSSESSING 800 POUNDS OF SUGAR AND PARTS OF A STILL FOR THE
PROSCRIBED PURPOSE.  ON MOTION THE DISTRICT COURT, RELYING ON DICTUM IN
A COURT OF APPEALS DECISION, (FN1) DISMISSED THE INDICTMENT ON THE
GROUND THAT SEC. 3116 IS "PREVENTATIVE AND REMEDIAL RATHER THAN
CRIMINAL, AND THAT IT DOES NOT DEFINE A CRIMINAL OFFENSE."  THE
GOVERNMENT APPEALED DIRECTLY TO THIS COURT UNDER THE CRIMINAL APPEALS
ACT, 18 U.S.C. SEC. 3731.  346 U.S. 930. 

AND SEIZURES," AND PROVIDES IN PERTINENT PART:  "IT SHALL BE UNLAWFUL
TO HAVE OR POSSESS ANY LIQUOR OR PROPERTY INTENDED FOR USE IN VIOLATING
THE PROVISIONS OF THIS PART, OR THE INTERNAL-REVENUE LAWS  ...  AND NO
PROPERTY RIGHTS SHALL EXIST IN ANY SUCH LIQUOR OR PROPERTY  ...  .
NOTHING IN THIS SECTION SHALL IN ANY MANNER LIMIT OR AFFECT ANY
CRIMINAL OR FORFEITURE PROVISION OF THE INTERNAL-REVENUE LAWS, OR OF
ANY OTHER LAW  ...  ."  THIS SECTION ALSO PROVIDES FOR SEARCH WARRANTS
AND FOR PROCEDURE IN SEIZURE AND FORFEITURE.  SECTION 3115 BEARS THE
CAPTION "PENALTIES" AND PROVIDES THAT ANYONE VIOLATING ANY OF THE
PROVISIONS OF "THIS PART" FOR WHICH OFFENSE A SPECIAL PENALTY IS NOT
PRESCRIBED "SHALL BE LIABLE, FOR THE FIRST OFFENSE, TO A PENALTY OF NOT
EXCEEDING $1,000, OR IMPRISONMENT NOT EXCEEDING THIRTY DAYS, OR BOTH
...  ."  THE TWO SECTIONS ARE INCLUDED WITHIN THE SAME "PART" OF THE
CODE.  (FN2) 

THE APPELLANT'S POSITION IS THAT SEC. 3115 MAKES VIOLATION OF ANY OF
THE PROVISIONS OF "THIS PART" A CRIMINAL OFFENSE PUNISHABLE BY FINE AND
IMPRISONMENT; SEC. 3116 CONTAINS A PROVISION MAKING IT UNLAWFUL TO
POSSESS PROPERTY INTENDED FOR USE IN VIOLATING THE PROVISIONS OF THAT
PART OR THE INTERNAL REVENUE LAWS; HENCE THE INDICTMENT ALLEGING A
VIOLATION OF SECS. 3116 AND 3115 BY SUCH POSSESSION CHARGES A CRIME. 
WE AGREE AND SO HOLD.  WE THINK THE PLAIN LANGUAGE OF THE TWO SECTIONS
READ TOGETHER CAN LEAD ONLY TO THE CONCLUSION THAT THE ACTS PROSCRIBED
IN SEC. 3116 NOT ONLY MAY RESULT IN FORFEITURE BUT LIKEWISE ARE MADE
CRIMINAL AND PUNISHABLE UNDER THE GENERAL PENALTY PROVISIONS OF SEC.
3115. 

THE SECTIONS HERE INVOLVED WERE BORROWED, WITH CHANGES INSIGNIFICANT
FOR PRESENT PURPOSES, FROM THE NATIONAL PROHIBITION ACT OF 1919, 41
STAT. 305 ET SEQ. THERE THE SECTIONS APPEARED AS SECS. 25 (COMPARE SEC.
3116) AND 29 (COMPARE SEC. 3115) OF TITLE II, AND PRESENTED A STATUTORY
PATTERN VIRTUALLY IDENTICAL TO THE PRESENT ONE.  IT IS MOST PERSUASIVE
THAT THE COURTS CONSISTENTLY UPHELD CRIMINAL PROSECUTIONS BROUGHT UNDER
THESE SECTIONS FOR THE ANALOGOUS ACT OF POSSESSING PROPERTY DESIGNED
FOR THE MANUFACTURE OF LIQUOR INTENDED FOR USE IN VIOLATION OF TITLE II
OF THE PROHIBITION ACT.  (FN3) 

THIS CONSISTENCY OF INTERPRETATION, FOLLOWED BY CONGRESS' UTILIZATION
OF THE CODE OF THE SAME PROVISIONS, IS ALSO HELPFUL IN DEALING WITH THE
LIMITATION IN SEC. 3115 WHICH MAKES THE PENALTIES OF THAT SECTION
APPLICABLE ONLY WHERE NO "SPECIAL PENALTY" IS PROVIDED FOR THE
OFFENSE.  AS A DE NOVO PROPOSITION IT MIGHT BE ARGUED THAT IN SEC. 3116
A SPECIAL PENALTY, FORFEITURE, IS PROVIDED.  BUT THIS ARGUMENT WAS
AVAILABLE WITH EQUAL FORCE UNDER THE PROHIBITION ACT AND APPEARS TO
HAVE BARRED NO PROSECUTION.  MOREOVER, SEC. 3116 CONTAINS A PROVISION
THAT "NOTHING IN THIS SECTION SHALL IN ANY MANNER LIMIT OR AFFECT ANY
CRIMINAL ...  PROVISION OF THE INTERNAL-REVENUE LAWS."  THIS WOULD SEEM
TO SETTLE THE POINT. 

CLEARLY CONGRESS MAY IMPOSE BOTH A CRIMINAL AND A CIVIL SANCTION IN
RESPECT TO THE SAME ACT; THIS IS NEITHER UNUSUAL NOR CONSTITUTIONALLY
OBJECTIONABLE.  SEE HELVERING V. MITCHELL, 303 U.S. 391, 399-400
(1938).  LIKEWISE IT IS COMMON IN DRAFTING LEGISLATION TO DECLARE
CERTAIN ACTS UNLAWFUL IN ONE SECTION AND SET FORTH PENALTIES FOR THEIR
COMMISSION IN ANOTHER.  (FN4) 

THE ONLY SUGGESTION ON THE FACE OF THE STATUTE THAT SEC. 3116 WAS
MEANT TO BE REMEDIAL AND NOTHING MORE COMES FROM ITS CAPTION,
"FORFEITURES AND SEIZURES," SUPPLIED BY THE CODIFIERS IN 1939.  BUT, IN
ENACTING THE CODE, CONGRESS PROVIDED THAT "THE ARRANGEMENT AND
CLASSIFICATION OF THE SEVERAL PROVISIONS OF THE INTERNAL REVENUE TITLE
HAVE BEEN MADE FOR THE PURPOSE OF A MORE CONVENIENT AND ORDERLY
ARRANGEMENT OF THE SAME, AND, THEREFORE, NO INFERENCE, IMPLICATION OR
PRESUMPTION OF LEGISLATIVE CONSTRUCTION SHALL BE DRAWN OR MADE BY
REASON OF THE LOCATION OR GROUPING OF ANY PARTICULAR SECTION OR
PROVISION OR PORTION THEREOF, NOR SHALL ANY OUTLINE, ANALYSIS, CROSS
REFERENCE, OR DESCRIPTIVE MATTER RELATING TO THE CONTENTS OF SAID TITLE
BE GIVEN ANY LEGAL EFFECT."  53 STAT. 1A.  TO ACCOMPLISH ITS PRIMARY
PURPOSE OF BRINGING TOGETHER ALL OPERATIVE REVENUE LAWS AND MAKING THEM
MORE COMPREHENSIBLE, THE CODE MADE "LIBERAL USE OF CATCHWORDS."  (FN5)
TYPICALLY, SEC. 3116 IS INCLUDED IN A SUBCHAPTER ENTITLED "INDUSTRIAL
ALCOHOL" AND IN A PART ENTITLED "INDUSTRIAL ALCOHOL PLANTS"; YET EVEN
UNDER A MOST NARROW INTERPRETATION OF ITS TERMS THE SECTION IS IN NO
SENSE LIMITED TO INDUSTRIAL ALCOHOL. 

SO FAR AS LIGHT IS TO BE HAD FROM LEGISLATIVE HISTORY, IT IS MEAGER
AND INCONCLUSIVE, IN NO WAY MILITATING AGAINST THE MEANING WE ATTRIBUTE
TO THE STATUTE.  REVERSED. 

FN1  KENT V. UNITED STATES, 157 F.2D 1 (1946).  SEE ALSO UNITED
STATES V. WINDLE, 158 F.2D 196 (1946).  IN THOSE CASES THE GOVERNMENT
HAD INVOKED ONLY THE FORFEITURE PROVISIONS OF THE SECTION; AS APPLIED
TO SUCH A CIVIL PROCEEDING, CHARACTERIZATION OF THE SECTION AS
PREVENTATIVE AND REMEDIAL WAS OBVIOUSLY ACCURATE.  THE TWO REPORTED
CASES WHICH PREVIOUSLY HAVE FACED SQUARELY THE PRESENT QUESTION HAVE
UPHELD THE INDICTMENTS.  UNITED STATES V. BLAIR, 97 F. SUPP. 718
(1951); UNITED STATES V. HARVIN, 91 F. SUPP. 249 (1950).  SEE ALSO
GODETTE V. UNITED STATES, 199 F.2D 331 (1952), IN WHICH THE PRESENT
ISSUE APPARENTLY WAS NOT RAISED. 

FN2  PART II ("INDUSTRIAL ALCOHOL PLANTS") OF SUBCHAPTER C
("INDUSTRIAL ALCOHOL") OF CHAPTER 26 ("LIQUOR").  THE FULL TEXT OF THE
TWO SECTIONS IS AS FOLLOWS: 

"SEC. 3115.  PENALTIES - (A)  VIOLATIONS AS TO OPERATION OF PLANTS OR
UNLAWFUL WITHDRAWAL OF TAXABLE ALCOHOL. 

"WHOEVER OPERATES AN INDUSTRIAL ALCOHOL PLANT OR A DENATURING PLANT
WITHOUT COMPLYING WITH THE PROVISIONS OF THIS PART AND LAWFUL
REGULATIONS MADE THEREUNDER, OR WHOEVER WITHDRAWS OR ATTEMPTS TO
WITHDRAW OR SECURE TAX FREE ANY ALCOHOL SUBJECT TO TAX, OR WHOEVER
OTHERWISE VIOLATES ANY OF THE PROVISIONS OF THIS PART OR OF REGULATIONS
LAWFULLY MADE THEREUNDER SHALL BE LIABLE, FOR THE FIRST OFFENSE, TO A
PENALTY OF NOT EXCEEDING $1,000, OR IMPRISONMENT NOT EXCEEDING THIRTY
DAYS, OR BOTH, AND FOR A SECOND OR COGNATE OFFENSE TO A PENALTY OF NOT
LESS THAN $100 NOR MORE THAN $10,000, AND TO IMPRISONMENT OF NOT LESS
THAN THIRTY DAYS NOR MORE THAN ONE YEAR.  IT SHALL BE LAWFUL FOR THE
COMMISSIONER IN ALL CASES OF SECOND OR COGNATE OFFENSE TO REFUSE TO
ISSUE FOR A PERIOD OF ONE YEAR A PERMIT FOR THE MANUFACTURE OR USE OF
ALCOHOL UPON THE PREMISES OF ANY PERSON RESPONSIBLE IN ANY DEGREE FOR
THE VIOLATION. 

"(B)  VIOLATIONS IN GENERAL. 

"ANY PERSON VIOLATING THE PROVISIONS OF THIS PART OR OF ANY
REGULATIONS ISSUED THEREUNDER, FOR WHICH OFFENSE A SPECIAL PENALTY IS
NOT PRESCRIBED, SHALL BE LIABLE TO THE PENALTY OR PENALTIES PRESCRIBED
IN SUBSECTION (A).  IT SHALL BE THE DUTY OF THE PROSECUTING OFFICER TO
ASCERTAIN, IN THE CASE OF EVERY VIOLATION OF THIS PART OR THE
REGULATIONS MADE THEREUNDER, FOR WHICH OFFENSE A SPECIAL PENALTY IS NOT
PRESCRIBED, WHETHER THE DEFENDANT HAS BEEN PREVIOUSLY CONVICTED AND TO
PLEAD THE PRIOR CONVICTION IN THE AFFIDAVIT, INFORMATION, OR
INDICTMENT. 

"(C)  PREVIOUS CONVICTION. 

"IF ANY ACT OR OFFENSE IS A VIOLATION OF THIS PART, AND ALSO OF ANY
OTHER LAW IN REGARD TO THE MANUFACTURE OR TAXATION OF, OR TRAFFIC IN,
INTOXICATING LIQUOR, A CONVICTION FOR SUCH ACT OR OFFENSE UNDER THE ONE
SHALL BE A BAR TO PROSECUTION THEREFOR UNDER THE OTHER. 

"SEC. 3116.  FORFEITURES AND SEIZURES. 

"IT SHALL BE UNLAWFUL TO HAVE OR POSSESS ANY LIQUOR OR PROPERTY
INTENDED FOR USE IN VIOLATING THE PROVISIONS OF THIS PART, OR THE
INTERNAL-REVENUE LAWS, OR REGULATIONS PRESCRIBED UNDER SUCH PART OR
LAWS, OR WHICH HAS BEEN SO USED, AND NO PROPERTY RIGHTS SHALL EXIST IN
ANY SUCH LIQUOR OR PROPERTY.  A SEARCH WARRANT MAY ISSUE AS PROVIDED IN
TITLE XI OF THE ACT OF JUNE 15, 1917, 40 STAT. 228, FOR THE SEIZURE OF
SUCH LIQUOR OR PROPERTY.  NOTHING IN THIS SECTION SHALL IN ANY MANNER
LIMIT OR AFFECT ANY CRIMINAL OR FORFEITURE PROVISION OF THE INTERNAL
REVENUE LAWS, OR OF ANY OTHER LAW.  THE SEIZURE AND FORFEITURE OF ANY
LIQUOR OR PROPERTY UNDER THE PROVISIONS OF THIS PART, AND THE
DISPOSITION OF SUCH LIQUOR OR PROPERTY SUBSEQUENT TO SEIZURE AND
FORFEITURE, OR THE DISPOSITION OF THE PROCEEDS FROM THE SALE OF SUCH
LIQUOR OR PROPERTY, SHALL BE IN ACCORDANCE WITH EXISTING LAWS OR THOSE
HEREAFTER IN EXISTENCE RELATING TO SEIZURES, FORFEITURES, AND
DISPOSITION OF PROPERTY OR PROCEEDS, FOR VIOLATION OF THE INTERNAL
REVENUE LAWS." 

FN3  E.G., REYNOLDS V. UNITED STATES, 280 F. 1 (1922); ADAMSON V.
UNITED STATES, 296 F. 110 (1924); STAKER V. UNITED STATES, 5 F.2D 312
(1925); PATRILO V. UNITED STATES, 7 F.2D 804, 805 (1925).  COMPARE PAGE
V. UNITED STATES, 278 F. 41 (1922). 

FN4  E.G., FAIR LABOR STANDARDS ACT, 29 U.S.C. SECS. 215, 216;
INTERNAL REVENUE CODE (NARCOTICS), 26 U.S.C. SECS. 2553, 2554, 2557. 

FN5  H.R. REP. NO. 6, 76TH CONG., 1ST SESS. 3; S. REP. NO. 20, 76TH
CONG., 1ST SESS. 3. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE JACKSON
AND MR. JUSTICE MINTON CONCUR, DISSENTING. 

RESPONDENT WAS INDICTED FOR VIOLATING SECS. 3116 AND 3115 OF THE
INTERNAL REVENUE CODE BY HAVING IN HIS POSSESSION SUGAR, WOODEN
BARRELS, A METAL CAP, A HEATER BOX AND MASH PIPE, ALL "INTENDED FOR
USE" IN UNLAWFULLY EVADING LIQUOR TAXES.  THE DISTRICT COURT DISMISSED
THE INDICTMENT FOR FAILURE TO CHARGE A CRIME.  I AGREE.  THE INDICTMENT
DID CLEARLY CHARGE A VIOLATION OF SEC. 3116 WHICH MAKES IT "UNLAWFUL"
TO HOLD PROPERTY FOR SUCH AN INTENDED USE.  BUT SEC. 3116 DOES NOT MAKE
"UNLAWFUL" POSSESSION A CRIME; THE ONLY SANCTION IT CONTAINS IS
FORFEITURE.  THIS COURT NEVERTHELESS HOLDS THAT POSSESSION FOR SUCH AN
"UNLAWFUL" PURPOSE IS MADE A CRIME BY SEC. 3115(B).  THAT SECTION DOES
NOT OF ITSELF DEFINE A CRIME; IT MERELY AUTHORIZES FINE OR IMPRISONMENT
FOR VIOLATIONS OF OTHER PROVISIONS OF THE ACT WHICH DO NOT THEMSELVES
PRESCRIBE A "SPECIAL PENALTY."  HENCE THE GENERAL PENALTIES OF SEC.
3115 CANNOT APPLY TO VIOLATIONS OF SEC. 3116, BECAUSE THIS LATTER
OF PROPERTY.  THIS FORFEITURE IS PLAINLY A PENALTY SINCE THERE IS NO
PRACTICAL DIFFERENCE BETWEEN TAKING A MAN'S PROPERTY BY FORFEITURE AND
TAKING HIS MONEY BY A FINE.  AND WHERE CONGRESS HAS SPECIFICALLY
PROVIDED A PROPERTY PENALTY I CANNOT AGREE TO ADD A MONEY PENALTY BY
DUBIOUS IMPLICATION. 

THE ACCEPTED PRACTICE OF CONSTRUING CRIMINAL STATUTES NARROWLY SHOULD
BE ESPECIALLY APPROPRIATE HERE BECAUSE OF THE UNUSUAL NATURE OF THE
"CRIME" INVOLVED.  THE COURT'S INTERPRETATION OF SEC. 3115 MAKES
POSSESSION OF INNOCENT PROPERTY, SUCH AS AN AUTOMOBILE, A CRIME IF THE
POSSESSOR INTENDS TO USE IT ILLEGALLY, EVEN IF HE HAS NOT DONE SO.
GUILT IS MADE TO DEPEND WHOLLY ON WHAT IS WITHIN THE DEFENDANT'S MIND. 
CONGRESS MAY WELL HAVE BEEN UNWILLING TO APPLY SANCTIONS OTHER THAN
FORFEITURE TO AN UNEXPRESSED INTENTION TO DO SOMETHING THAT HAS NOT
EVEN BEEN ATTEMPTED. 
..END :













SACHER V. ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 347 U.S. 388 


NO. 307.  ARGUED MARCH 11, 1954 - DECIDED APRIL 5, 1954 - 206 F.2D 358,
REVERSED AND REMANDED. 


IN VIEW OF THE ENTIRE RECORD IN THIS CASE, AND THE FINDINGS OF THE
COURTS BELOW, PETITIONER'S PERMANENT DISBARMENT BY THE DISTRICT COURT
FOR HIS CONDUCT IN THE TRIAL OF THE DENNIS CASE IS SET ASIDE AS
UNNECESSARILY SEVERE, AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS.  PP. 388-389. 

SACHER V. ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PER CURIAM. 

THIS IS A PROCEEDING BROUGHT BY RESPONDENT BAR ASSOCIATIONS IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE DISBARMENT OF PETITIONER FROM PRACTICE IN THAT COURT.  PETITIONER
HAD PREVIOUSLY BEEN CONVICTED OF CONTEMPT IN THE SAME COURT.  SEE
SACHER V. UNITED STATES, 343 U.S. 1. 

THE DISTRICT COURT, AFTER DISALLOWING EIGHT OF THE SPECIFICATIONS IN
THE PETITION FOR DISBARMENT, FOUND AS TO THE OTHERS THAT THERE WAS NO
CONSPIRACY AS CHARGED THEREIN AND NO MORAL TERPITUDE INVOLVED, AND THAT
THE PROVEN CONTUMACIOUS CONDUCT OF PETITIONER STEMMED FROM AN EXCESS OF
ZEAL FOR HIS CLIENTS THAT OBSCURED HIS RECOGNITION OF RESPONSIBILITY AS
AN OFFICER OF THE COURT.  ALL OF THE CONDUCT COMPLAINED OF OCCURRED IN
ONE PROTRACTED TRIAL INVOLVING MANY DEFENDANTS AND COUNSEL.  SEE DENNIS
V. UNITED STATES, 341 U.S. 494.  THERE WAS NO ALLEGATION OR PROOF OF
PRIOR MISCONDUCT IN PETITIONER'S TWENTY-FOUR YEARS OF PRACTICE.  THE
COURT OF APPEALS DIVIDED UPON THE PROPRIETY OF PERMANENT DISBARMENT,
BUT UNANIMOUSLY QUESTIONED THE IMPORTANCE OF ONE OF THE TWO
SPECIFICATIONS PRINCIPALLY RELIED ON BY THE TRIAL COURT. 

AT THE TIME THE DISTRICT COURT MADE ITS DECISION IN THIS CASE, THE
CONTEMPT JUDGMENT WAS UNDER REVIEW ON APPEAL, AND IT DID NOT KNOW AND
COULD NOT KNOW THAT PETITIONER WOULD BE OBLIGED TO SERVE, AS HE DID, A
SIX MONTHS' SENTENCE FOR THE SAME CONDUCT FOR WHICH IT DISBARRED HIM. 

IN VIEW OF THIS ENTIRE RECORD AND OF THE FINDINGS OF THE COURTS
BELOW, WE ARE OF THE OPINION THAT PERMANENT DISBARMENT IN THIS CASE IS
UNNECESSARILY SEVERE.  THE JUDGMENT IS REVERSED AND THE CASE REMANDED
TO THE DISTRICT COURT FOR FURTHER CONSIDERATION AND APPROPRIATE ACTION
NOT INCONSISTENT WITH THIS OPINION. 

MR. JUSTICE BURTON WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, DISSENTING. 

THE CONCLUSION OF THE COURT THAT THE CONDUCT OF MR. SACHER IN THE
TRIAL OF DENNIS V. UNITED STATES, 341 U.S. 494, DID NOT JUSTIFY THE
ORDER OF DISBARMENT ENTERED AGAINST HIM BY THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SEEMS SO INIMICAL TO THE
ORDERLY ADMINISTRATION OF JUSTICE AS TO JUSTIFY THIS EXPRESSION OF
DISSENT.  WE TRUST THAT THE PURPOSE OF THE DISSENT WILL NOT BE
MISINTERPRETED AS AN IMPLIED CRITICISM OF THOSE MEMBERS OF THE BAR WHO
UNDERTAKE THE TASK OF THE REPRESENTATION OF UNPOPULAR CLIENTS.  THOSE
WHO PROVIDE SUCH COUNSEL IN THE SPIRIT OF JUSTICE AND IN ACCORDANCE
WITH THE DIGNITY OF THE COURTS ARE TO BE COMMENDED.  THEY ENHANCE THE
TRADITION OF AMERICAN LAWYERS OF SEEING THAT ALL DEFENDANTS HAVE PROPER
REPRESENTATION BEFORE THE COURTS.  THE PURPOSE OF THIS DISSENT IS TO
SHOW THAT IN REVERSING THE DISBARMENT OF MR. SACHER THIS COURT DEPARTS
FROM ITS PREVIOUS PRACTICE OF LEAVING EXCLUSIONS FROM THEIR BARS TO THE
DISTRICT COURTS EXCEPT WHEN THERE HAS BEEN AN ABUSE OF DISCRETION. 

IF NO PROTEST AGAINST SUCH ACTION WERE MADE HERE, WE THINK THE DANGER
OF THE ADOPTION OF TACTICS AKIN TO THOSE OF MR. SACHER BY OTHER LAWYERS
IN OTHER CASES OF INTENSE PARTISANSHIP OR INVOLVING DEEP FEELING WOULD
BE MATERIALLY ENLARGED.  THE CONTAGIOUSNESS OF UNETHICAL PRACTICES IS
SHOWN BY THE CONDUCT IN THE DENNIS CASE BY ANOTHER MEMBER OF THE BAR
THAT RESULTED IN HIS CONVICTION OF CONTEMPT, 343 U.S. 1, AND IN HIS
SUSPENSION FROM MEMBERSHIP IN THE DISTRICT COURT BAR FOR TWO YEARS. 
(FN1)  THE NEW JERSEY SUPREME COURT DISBARRED THIS OTHER LAWYER FROM
THE PRACTICE OF LAW IN THAT STATE ON THE BASIS OF SUCH CONTEMPT
CONVICTION.  9 N.J. 269, 316, 87 A.2D 903, 88 A.2D 199.  THAT ACTION
RESULTED IN HIS DISBARMENT FROM OUR BAR.  345 U.S. 286. 

THE MISCONDUCT CHARGED AGAINST MR. SACHER OCCURRED IN A LONG-DRAWN
OUT TRIAL LASTING FROM JANUARY 17, 1949, WITH OCCASIONAL INTERMISSIONS
UNTIL A VERDICT OF GUILTY, SUBSEQUENTLY AFFIRMED HERE, WAS REACHED ON
OCTOBER 21, 1949.  THE CHARGES AND FINDINGS AS TO IMPROPER CONDUCT DO
NOT REFER TO AN ISOLATED INSTANCE BUT TO A COURSE OF REPREHENSIBLE
CONDUCT THROUGHOUT THE TRIAL.  THE CHARGES WERE FILED BY THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK AND THE NEW YORK COUNTY
LAWYERS' ASSOCIATION AFTER THE VERDICT IN THE DENNIS CASE.  AT THAT
TIME THE TRIAL JUDGE IN THE DENNIS CASE HAD IMPOSED ON MR. SACHER AS
PUNISHMENT FOR HIS CONTEMPTUOUS CONDUCT A SENTENCE OF SIX MONTHS. 
(FN2)  THIS WAS UPHELD BY THIS COURT AFTER THE ORDER OF DISBARMENT AND
HAS BEEN SERVED.  THE SENTENCE WAS A PUNISHMENT FOR MR. SACHER'S
CONTEMPT OF COURT.  DISBARMENT IS NOT PUNISHMENT FOR CONTEMPT BUT A
CLEANSING OF THE BAR BY OUSTING.  (FN3)  PUNISHMENT FOR CONTEMPT SHOULD
NOT BE CONSIDERED AS A PROHIBITION OF OR IN MITIGATION OF DISCIPLINE IN
DISBARMENT PROCEEDINGS.  IN FACT, A PRIOR CONVICTION ADDS FORCE TO THE
NEED TO DISBAR.  THE COURT'S PER CURIAM OPINION IN THIS CASE SEEMS TO
INCLINE TO THE CONTRARY VIEW.  APPARENTLY IT LOOKS UPON THE AFFIRMANCE
OF THE CONTEMPT CONVICTION AS SOMETHING THAT MUST SOFTEN THE ATTITUDE
TOWARD DISBARMENT. 

COMING TO THE MERITS OF THIS DISBARMENT, WE LIMITED CONSIDERATION ON
CERTIORARI TO THE FOLLOWING QUESTION: 

"ACCEPTING THE FACTS AS FOUND IN THE MEMORANDUM DECISION OF CHIEF
JUDGE HINCKS, DOES PERMANENT DISBARMENT EXCEED THE BOUNDS OF FAIR
DISCRETION, PARTICULARLY IN VIEW OF THE PUNISHMENT OF PETITIONER'S
INDIVIDUAL MISCONDUCT AS A CONTEMPT AND THE FINDING THAT THE PROOF DOES
NOT ESTABLISH THAT HE SO BEHAVED PURSUANT TO A CONSPIRACY OR A
DELIBERATE AND CONCERTED EFFORT?"  (FN4) 

THAT LIMITATION ACCEPTED THE FOLLOWING FINDINGS MADE BY CHIEF JUDGE
HINCKS AS A VALID AND UNASSAILABLE FOUNDATION FOR DECISION: 

"AS TO MR. SACHER, I FIND AS CHARGED IN PAR. 14: 

"(1)  THAT WITH INTENT TO DELAY AND OBSTRUCT THE TRIAL, HE
DISREGARDED NUMEROUS WARNINGS OF THE COURT CONCERNING WILFUL, DELAYING
TACTICS AND PERSISTED IN MAKING LONG AND REPETITIOUS ARGUMENTS AND
PROTESTS,  ...  AND MADE NEEDLESS REITERATIONS OF OBJECTIONS OF OTHERS,
...  . 

"(2)  THAT FOR THE PURPOSE OF BRINGING THE COURT INTO GENERAL
DISCREDIT AND DISREPUTE, (A) HE INSINUATED THAT VARIOUS FINDINGS MADE
BY THE COURT WERE MADE FOR PURPOSES OF NEWSPAPER HEADLINES, ...  (B) HE
ACCUSED THE COURT OF PREJUDICE AND PARTIALITY,  ... AND (C) MADE
DISRESPECTFUL, INSOLENT AND SARCASTIC COMMENTS AND REMARKS TO THE
COURT, MANY OF WHICH WERE WITH INTENT TO PROVOKE THE COURT INTO
INTEMPERATE ACTION WHICH MIGHT BE AVAILED OF AS GROUND FOR MISTRIAL OR
LATER AS ERROR ON APPEAL,  ...  . 

"MR. SACHER'S PROVED MISCONDUCT, AS CHARGED IN THIS PARAGRAPH ...  IN
MY JUDGMENT REQUIRES DISBARMENT." 

(RECORD REFERENCES OMITTED.) 

"3.  BY PARAGRAPH 16 IT IS ALSO CHARGED THAT MR. SACHER 'MADE
INSOLENT, SARCASTIC, IMPERTINENT AND DISRESPECTFUL REMARKS TO THE COURT
AND CONDUCTED' HIMSELF 'IN A PROVOCATIVE MANNER.'  THIS CHARGE ALSO I
FIND ABUNDANTLY PROVED BY THE CITED REFERENCES TO THE RECORD." 

IT WOULD TAKE VOLUMINOUS QUOTATIONS FROM THE HUGE RECORD TO DOCUMENT
CHIEF JUDGE HINCKS' CONCLUSIONS.  OUR ORDER ON CERTIORARI ACCEPTS THEIR
TRUTH.  THE TRIAL COURT COMMENTED: 

"THAT SUCH CONDUCT WAS UNPROFESSIONAL NEEDS NO EXEGESIS:  I SO HOLD. 
EVEN MORE CLOSELY THAN THAT DEALT WITH IN THE PRECEDING SECTION IT
TOUCHES THE VITALS OF THE JUDICIAL PROCESS: EVEN GREATER IS ITS
TENDENCY TO OBSTRUCT THE ATTAINMENT OF PERSONAL JUSTICE.  AND THE
PROVEN VOLUME OF THIS MISCONDUCT ALSO WAS SUCH AS TO CONSTITUTE A
SERIOUS OBSTRUCTION TO THE PROPER CONDUCT OF THE TRIAL. 
OVERPERSISTENCE IN ARGUMENT, AS OBSERVED ABOVE, TENDS TO BREED
CONFUSION.  PROVOCATIVE CONDUCT TENDS TO BREED TURBULENCE.  INSOLENT
AND DISRESPECTFUL REMARKS TO THE COURT TEND TO UNDERMINE THE JUDICIAL
AUTHORITY INDISPENSABLE TO THE POWER EFFECTIVELY TO COPE WITH SUCH
INTRUSIONS WHICH BY THEIR VERY NATURE OBSTRUCT THE DEVELOPMENT OF THE
REAL MERITS OF THE CASE. 

"FOR PROVED MISCONDUCT FALLING WITHIN THIS BRANCH OF THE CHARGE, I
CONCLUDE THAT AN ORDER OF DISBARMENT IS REQUIRED." 

THE COURT, AS IT MUST BY ITS GRANT OF CERTIORARI, BASES ITS ACTION ON
THE FACTS OF DISRESPECT TO THE TRIAL COURT, WILFUL DELAY, AND A PURPOSE
TO DISCREDIT THE ADMINISTRATION OF JUSTICE.  IT DIFFERS FROM THE TRIAL
COURT ONLY AS TO THE MEASURE OF DISCIPLINE REQUIRED.  (FN5)  BY
REVERSING THE JUDGMENT BELOW, WITHOUT DISCUSSION OF THE ACCEPTED RULE
IN FEDERAL COURTS THAT THE EXERCISE OF JUDICIAL DISCRETION IN
DISBARMENT WILL NOT BE OVERTURNED ON REVIEW UNLESS THERE IS A CLEAR
ABUSE OF DISCRETION, (FN6) THIS COURT NOW SUMMARILY PLACES ITSELF IN
THE POSITION OF A TRIAL COURT.  IT ACTS, NOT UPON AN ABUSE OF
DISCRETION BY THE TRIAL COURT, BUT UPON A RECORD TO DETERMINE FOR
ITSELF THE PROPER EXTENT OF PUNISHMENT.  CERTAINLY THIS COURT DOES NOT
MEAN TO RULE THAT CONDUCT SUCH AS THE ACCEPTED FACTS DISCLOSE DOES NOT
SUPPORT THE DISCRETION OF THE TRIAL JUDGE IN DISBARRING MR. SACHER. 
(FN7) 

SUCH A CHANGE OF THE COURSE OF DECISION IS A DISSERVICE TO THE
ORDERLY PROGRESS OF TRIALS.  IT STIMULATES RATHER THAN DETERS THE
ADOPTION OF THE STRATEGY OF THE DENNIS CASE.  IT INTRUDES UNNECESSARILY
THIS COURT'S VIEWS OF THE PROPRIETIES INTO THE DISCIPLINE OF BARS OF
REGIONS AND COMMUNITIES WHOSE ATTITUDE TOWARD COURTROOM BEHAVIOR
DIVERGES FROM OUR OWN.  IT IS ENOUGH IF WE STAND READY TO SAY THAT AN
ABUSE OF DISCRETION BY A TRIAL COURT WILL NOT BE ALLOWED TO STAND.  WE
SHOULD NOT SUBSTITUTE OUR DISCRETION FOR THAT OF THE TRIAL JUDGE.  CALM
AND REASONED PRESENTATION OF FACTS AND LAW ARE NOT ONLY MORE EFFECTIVE
BUT ARE ESSENTIAL IF ADMINISTRATION OF JUSTICE BY THE COURTS IS NOT TO
BE DISRUPTED BY SUCH COURTROOM TACTICS AS WERE USED IN THE DENNIS
TRIAL.  WE DEMAND TOLERANCE FOR THOSE WHO DIFFER.  CONFORMITY IS NOT
EXPECTED OR DESIRED.  THERE IS ROOM FOR EVERY SHADE OF OPINION AND
EXPRESSION SHORT OF INCITEMENT TO CRIME.  BUT THERE IS NOT ROOM FOR
VIOLENCE, OFFENSIVE EXPLETIVES OR INTERFERENCE WITH ORDERLY PROCEDURE
IN A COURTROOM, AND SUCH AN ATTITUDE IS NOT TO EXALT ORDER OVER LIBERTY
BUT TO EXALT REASON OVER FORCE.  AN ATMOSPHERE FILLED WITH UNPROVEN
PERSONAL CHARGES OR INNUENDOES OF WRONGFUL ACTION IS NOT CONDUCIVE TO
DISPASSIONATE APPRAISAL OF THE TRUTH OF MATTERS UNDER JUDICIAL
INVESTIGATION.  I WOULD UPHOLD THE DISCIPLINE ADMINISTERED BY THE BAR
AND TRIAL JUDGE BY AFFIRMING THIS JUDGMENT. 

FN1  THE TRIAL JUDGE COMPARED THE CONDUCT OF THIS LAWYER AND MR.
SACHER (SEE NOTE 5, INFRA) THUS: 

"I FEEL THAT THE OTHER LAWYER'S CONDUCT AT THE TRIAL IS SUCH AS TO
REQUIRE FIRM DISCIPLINARY ACTION.  HOWEVER, HIS ATTITUDE AS DISCLOSED
ON THE RECORD AND ON HIS BRIEF HEREIN LEAVES ROOM FOR REASONABLE
EXPECTATION THAT THE EXPERIENCE OF DISCIPLINE MAY HAVE SUCH RESTRAINING
EFFECT ON HIS COURTROOM BEHAVIOR THAT IN THE FUTURE HE MAY BE SAFELY
EXPECTED TO EXERCISE WITHOUT ABUSE THE PRIVILEGES OF MEMBERSHIP IN THIS
BAR." 

FN2  THE SENTENCE WAS LATER AFFIRMED IN THE COURT OF APPEALS, 182
F.2D 416, AND WE DENIED CERTIORARI, 341 U.S. 952.  LATER CERTIORARI WAS
GRANTED, 342 U.S. 858.  DISBARMENT FOLLOWED.  THEREAFTER WE AFFIRMED
THE SENTENCE OF CONTEMPT, 343 U.S. 1.  THE DISBARMENT WAS SUBSEQUENTLY
AFFIRMED, 206 F.2D 358. 

FN3  EX PARTE WALL, 107 U.S. 265, 273: 

"'THE QUESTION IS,' SAID LORD MANSFIELD, 'WHETHER, AFTER THE CONDUCT
OF THIS MAN, IT IS PROPER THAT HE SHOULD CONTINUE A MEMBER OF A
PROFESSION WHICH SHOULD STAND FREE FROM ALL SUSPICION  ...  . IT IS NOT
BY WAY OF PUNISHMENT; BUT THE COURT IN SUCH CASES EXERCISE THEIR
DISCRETION, WHETHER A MAN WHOM THEY HAVE FORMERLY ADMITTED IS A PROPER
PERSON TO BE CONTINUED ON THE ROLL OR NOT.'"  SEE IN RE ISSERMAN, 345
U.S. 286, 289. 

FN4  346 U.S. 894. 

FN5  THE COURT REFERS TO THE LANGUAGE OF THE ORDER, "PERMANENTLY
DISBARRED."  THIS, OF COURSE, SHOULD BE READ AS A DISBARMENT SUBJECT TO
REINSTATEMENT.  SEE DRINKER, LEGAL ETHICS, 49, AND THE CASES COLLECTED
IN 7 C.J.S. 814; 5 AM. JUR.  443; 6 FED. DIG.  355; 48 A.L.R. 1236. 
REINSTATEMENT MAY FOLLOW "A SINCERE AND TIMELY CHANGE OF ATTITUDE." 
SUCH AN ATTITUDE ON THE PART OF MR. SACHER, CHIEF JUDGE HINCKS SAYS IN
HIS DECISION, DID NOT EXIST EVEN AT THE TIME OF THE HEARING OF THE
CHARGES. 

FN6  THE RULE AS TO REVIEW OF DISBARMENT OF EX PARTE BURR, 9 WHEAT. 
529, ANNOUNCED BY CHIEF JUSTICE MARSHALL, HAS BEEN THE GUIDE FOR UNITED
STATES COURTS: 

"THERE IS, THEN, NO IRREGULARITY IN THE MODE OF PROCEEDING WHICH
WOULD JUSTIFY THE INTERPOSITION OF THIS COURT.  IT COULD ONLY
INTERPOSE, ON THE GROUND THAT THE CIRCUIT COURT HAD CLEARLY EXCEEDED
ITS POWERS, OR HAD DECIDED ERRONEOUSLY ON THE TESTIMONY.  THE POWER IS
ONE WHICH OUGHT TO BE EXERCISED WITH GREAT CAUTION, BUT WHICH IS, WE
THINK, INCIDENTAL TO ALL COURTS, AND IS NECESSARY FOR THE PRESERVATION
OF DECORUM, AND FOR THE RESPECTABILITY OF THE PROFESSION.  UPON THE
TESTIMONY, THIS COURT WOULD NOT BE WILLING TO INTERPOSE WHERE ANY DOUBT
EXISTED."  ID., AT 531.  EX PARTE SECOMBE, 19 HOW.  9; EX PARTE
BRADLEY, 7 WALL.  364.  THESE EARLY CASES WERE UNDER MANDAMUS
PRACTICE.  WE NOW PROCEED BY APPEAL AND CERTIORARI.  SEE THATCHER V.
UNITED STATES, 212 F. 801, 804.  THE PRINCIPLES OF THE BURR CASE STILL
GOVERN AND THE WEIGHT ACCORDED THE CONCLUSION OF THE TRIAL COURT
REMAINS UNCHANGED.  IN RE SACHER, 206 F.2D 358, 361; IN RE CHOPAK, 160
F.2D 886, 887; IN RE SCHACHNE, 87 F.2D 887, 888; IN RE SPICER, 126 F.2D
288, 289, 292; IN RE PATTERSON 176 F.2D 966, N. 1.    FN7  BURNS V.
UNITED STATES, 287 U.S. 216, 222-223: 

"THE QUESTION IS SIMPLY WHETHER THERE HAS BEEN AN ABUSE OF
DISCRETION, AND IS TO BE DETERMINED IN ACCORDANCE WITH FAMILIAR
PRINCIPLES GOVERNING THE EXERCISE OF JUDICIAL DISCRETION.  THAT
EXERCISE IMPLIES CONSCIENTIOUS JUDGMENT, NOT ARBITRARY ACTION  ...  .
IT TAKES ACCOUNT OF THE LAW AND THE PARTICULAR CIRCUMSTANCES OF THE
CASE AND 'IS DIRECTED BY THE REASON AND CONSCIENCE OF THE JUDGE TO A
JUST RESULT.'  ...  WHILE PROBATION IS A MATTER OF GRACE, THE
PROBATIONER IS ENTITLED TO FAIR TREATMENT, AND IS NOT TO BE MADE THE
VICTIM OF WHIM OR CAPRICE."  SEE UNITED STATES V. MCWILLIAMS, 82 U.S.
APP. D.C. 259, 261, 163 F.2D 695, 697, AND CASES CITED. 
..END :





















ALASKA STEAMSHIP CO., INC. V. PETTERSON 347 U.S. 396 


NO. 287.  ARGUED MARCH 8-9, 1954.  - DECIDED APRIL 5, 1954.  - 205 F.2D
478, AFFIRMED. 


THE JUDGMENT BELOW IS AFFIRMED ON THE AUTHORITY OF THE CASES CITED. 

ALASKA STEAMSHIP CO., INC. V. PETTERSON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  SEAS SHIPPING CO. V. SIERACKI, 328 U.S.
85, 100; POPE & TALBOT V. HAWN, 346 U.S. 406. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
JACKSON JOIN, DISSENTING. 

THE SIERACKI (FN1) AND POPE & TALBOT (FN2) CASES CITED AS THE BASIS
FOR THE COURT'S DECISION DO NOT JUSTIFY THE RESULT ANNOUNCED.  THEY
EVIDENCE THIS COURT'S LATEST AND BROADEST STATEMENT OF A SHIPOWNER'S
LIABILITY FOR THE UNSEAWORTHINESS OF HIS SHIP AND ITS EQUIPMENT, BUT
THEY DO NOT REACH THE INSTANT CASE.  THEY ASSERT THE LIABILITY OF A
SHIPOWNER TO STEVEDORES AND CARPENTERS WHO, IN CONSEQUENCE OF THE
UNSEAWORTHINESS OF HIS SHIP OR ITS EQUIPMENT, ARE INJURED ON BOARD IN
NAVIGABLE WATERS WHILE ENGAGED IN WORK CONNECTED WITH LOADING OR
UNLOADING THE SHIP.  THOSE CASES ESTABLISH THAT SUCH LIABILITY FOR
UNSEAWORTHINESS EXISTS ALTHOUGH THE INJURED MARITIME WORKERS ARE NOT
EMPLOYEES OF THE SHIPOWNER BUT ARE EMPLOYEES OF A THIRD PARTY WHO IS
UNDER CONTRACT TO SUPPLY STEVEDORING SERVICES. 

THE QUESTION PRESENTED BY THE INSTANT CASE GOES FURTHER.  IT ASKS
WHETHER A SHIPOWNER IS LIABLE FOR INJURIES SUFFERED ON HIS SHIP BY A
STEVEDORE, EVEN WHEN THOSE INJURIES RESULT FROM UNSEAWORTHINESS OF
EQUIPMENT THAT DOES NOT BELONG TO THE SHIPOWNER AND IS NOT PART OF THE
SHIP'S EQUIPMENT, BUT BELONGS TO THE STEVEDORE'S INDEPENDENT EMPLOYER,
IS PART OF THAT EMPLOYER'S LOADING EQUIPMENT, AND IS BROUGHT ON BOARD
BY SUCH EMPLOYER.  THERE IS NO SUGGESTION IN THE CITED CASES THAT THE
SHIPOWNER'S RESPONSIBILITY EXTENDS BEYOND THE SEAWORTHINESS OF HIS SHIP
AND ITS EQUIPMENT, AND I SEE NO ADEQUATE REASON FOR JUDICIALLY
EXTENDING IT BEYOND THAT LIMIT. 

AS THE INSTANT CASE OFFERS A NEW PRECEDENT, IT IS IMPORTANT TO RECITE
ITS FACTS SO THAT ITS EFFECT MAY BE ACCURATELY MEASURED AND LIMITED IN
THE ABSENCE OF A SUPPORTING OPINION. 

THE COURT OF APPEALS STATED THE QUESTION WHICH IT DECIDED AS
FOLLOWS: 

"THE QUESTION PRESENTED IS WHETHER A VESSEL'S OWNER IS LIABLE FOR
INJURIES RECEIVED BY AN EMPLOYEE OF A STEVEDORING COMPANY (AN
INDEPENDENT CONTRACTOR) ON BOARD SHIP WHILE ENGAGED IN THE LOADING OF
THE SHIP WHERE THE INJURIES ARE CAUSED BY A BREAKING BLOCK BROUGHT ON
BOARD BY THE STEVEDORING COMPANY."  PETTERSON V. ALASKA S.S. CO., 205
F.2D 478. 

RESPONDENT PETTERSON WAS AN ABLE-BODIED STEVEDORE, 73 YEARS OLD,
EMPLOYED AS A LONGSHORE FOREMAN BY THE ALASKA TERMINAL AND STEVEDORING
COMPANY.  THAT COMPANY WAS ENGAGED BY PETITIONER ALASKA STEAMSHIP
COMPANY, INC., TO LOAD THE LATTER'S VESSEL, THE S.S. SUSITNA.  IN MAY
1950 RESPONDENT THUS BECAME ENGAGED IN LOADING THAT VESSEL WHILE IT WAS
DOCKED IN WHAT IS ASSUMED TO BE NAVIGABLE WATER IN THE STATE OF
WASHINGTON.  PETTERSON'S EMPLOYER, THE STEVEDORING COMPANY, WAS
AUTHORIZED BY THE SHIPOWNER TO USE, IN THE LOADING OPERATION, THE
CONTRACTOR'S OWN GEAR OR THE GEAR OF THE SHIP, AT THE CONTRACTOR'S
OPTION.  RESPONDENT AND HIS FELLOW EMPLOYEES RIGGED A SNATCH BLOCK
WHICH HAD BEEN STANDING OR LYING UNUSED UPON THE DECK OF THE VESSEL. 
IT WAS OF A TYPE OFTEN FOUND AS PART OF A SHIP'S GEAR ABOARD SUCH
VESSELS AND ALSO AS PART OF A STEVEDORING COMPANY'S GEAR.  THE BLOCK
WAS TREATED BY EACH COURT BELOW AS HAVING BEEN BROUGHT ON BOARD BY THE
STEVEDORING COMPANY AND AS BELONGING TO THAT COMPANY.  (FN3) 

WHILE BEING PUT TO A PROPER USE IN A PROPER MANNER, THE BLOCK BROKE,
THUS CAUSING SOME OF THE LOADING GEAR TO FALL AND CRUSH RESPONDENT'S
LEG AS HE WAS ENGAGED IN SUPERVISING THE WORK OF LONGSHOREMEN ABOARD
THE SHIP. 

PETTERSON FILED A LIBEL IN PERSONAM IN THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF WASHINGTON AGAINST THE SHIPOWNER
CLAIMING $35,000 DAMAGES RESULTING FROM THE UNSEAWORTHINESS OF THE
BLOCK.  AFTER TRIAL, THE LIBEL WAS DISMISSED WITHOUT A REPORTED
OPINION.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED THE
DECREE AND REMANDED THE CAUSE FOR DETERMINATION OF DAMAGES.  205 F.2D
478.  BECAUSE OF AN ALLEGED CONFLICT WITH LOPEZ V. AMERICAN-HAWAIIAN
S.S. CO., 201 F.2D 418, AND THE IMPORTANCE OF THE DECISION IN RELATION
TO A SHIPOWNER'S LIABILITY FOR UNSEAWORTHINESS, WE GRANTED CERTIORARI. 
346 U.S. 914. 

THE DOCTRINE OF SEAWORTHINESS WAS STATED AS A SETTLED PROPOSITION IN
THE OSCEOLA, 189 U.S. 158, 175, AS FOLLOWS: 

"THAT THE VESSEL AND HER OWNER ARE, BOTH BY ENGLISH AND AMERICAN LAW,
LIABLE TO AN INDEMNITY FOR INJURIES RECEIVED BY SEAMEN IN CONSEQUENCE
OF THE UNSEAWORTHINESS OF THE SHIP, OR A FAILURE TO SUPPLY AND KEEP IN
ORDER THE PROPER APPLIANCES APPURTENANT TO THE SHIP." 

THAT DOCTRINE WAS A NATURAL OUTGROWTH OF THE DEPENDENCE OF A SHIP'S
CREW UPON THE SEAWORTHINESS OF THE SHIP AND ITS EQUIPMENT.  SERVICES OF
A CREW MUST BE RENDERED WITH WHATEVER EQUIPMENT THE SHIPOWNER
SUPPLIES.  SUCH SEAMEN ARE NOT EXPECTED TO SUPPLY MARITIME OR LOADING
EQUIPMENT AND IT IS ONLY FAIR FOR THE LAW TO SUBJECT SHIPOWNERS TO AN
ABSOLUTE LIABILITY TO THEM FOR THE UNSEAWORTHINESS OF THE SHIPOWNER'S
SHIP OR EQUIPMENT. 

IN THE SIERACKI CASE, THIS COURT EXTENDED THE SHIPOWNER'S TRADITIONAL
OBLIGATION SO AS TO BRING WITHIN ITS PROTECTION STEVEDORES WHILE
ENGAGED IN LOADING OR UNLOADING THE SHIP.  THIS WAS LARGELY ON THE
PREMISE THAT THE STEVEDORES WERE THEN RENDERING SERVICES USUALLY AND
FORMERLY PERFORMED BY THE CREW.  THE DECISION ASSUMED THAT THE
STEVEDORES, LIKE THEIR PREDECESSORS, USED THE SHIP'S EQUIPMENT.  "FOR
THESE PURPOSES HE (THE STEVEDORE) IS, IN SHORT, A SEAMAN BECAUSE HE IS
DOING A SEAMAN'S WORK AND INCURRING A SEAMAN'S HAZARDS."  328 U.S., AT
99.  (FN4)  THE HISTORICAL ANALOGY DISAPPEARS IN THE INSTANT CASE.  THE
MODERN STEVEDORES, WHO SUPPLY SUBSTANTIAL LOADING EQUIPMENT, ARE A FAR
CRY FROM THE TRADITIONAL WARDS OF THE ADMIRALTY AROUND WHOM THE COURT
THREW ITS PROTECTION IN THE OSCEOLA CASE.  (FN5) 

WHILE THE DOCTRINE OF ABSOLUTE LIABILITY FOR UNSEAWORTHINESS,
EXPOUNDED IN MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96, IS REASONABLE
ENOUGH WHEN APPLIED TO A SHIPOWNER IN RELATION TO HIS OWN SHIP AND TO
ITS EQUIPMENT, THERE IS NO COMPARABLE JUSTIFICATION FOR APPLYING IT TO
EQUIPMENT OWNED BY OTHERS AND BROUGHT ON BOARD BY THEM.  THUS TO EXTEND
SUCH ABSOLUTE LIABILITY WOULD MAKE THE SHIPOWNER RESPONSIBLE FOR THE
RESULT OF LATENT DANGERS HE CANNOT PREVENT.  THE BURDEN SHOULD BE UPON
THOSE BEST ABLE TO ELIMINATE THE HAZARD - IN THIS CASE, THE STEVEDORING
CONTRACTOR.  (FN6) 

PETITIONER ALSO HAS EMPHASIZED THE FACT THAT PETTERSON WAS INJURED
WHILE WORKING IN A PART OF THE SHIP THAT WAS UNDER THE CONTROL OF THE
STEVEDORING CONTRACTOR RATHER THAN OF THE SHIPOWNER.  THIS DISTINCTION,
IN FAVOR OF THE SHIPOWNER, WAS RELIED UPON IN LOPEZ V. AMERICAN
HAWAIIAN S.S. CO., SUPRA, AND HAS BEEN CONSIDERED DECISIVE IN OTHER
CASES.  HOWEVER, IF THE UNSEAWORTHY EQUIPMENT IN THE INSTANT CASE HAD
BEEN A PART OF THE SHIP'S EQUIPMENT, THE PRINCIPLES UNDERLYING THE
SIERACKI AND POPE & TALBOT DECISIONS, SUPRA, MIGHT JUSTIFY THE
SHIPOWNER'S LIABILITY, REGARDLESS OF WHO WAS IN CONTROL OF THE PART OF
THE SHIP WHERE THAT EQUIPMENT CAUSED THE INJURY.  (FN7)  IT IS
PRECISELY BECAUSE THE EQUIPMENT IN THE INSTANT CASE WAS NOT THE SHIP'S
EQUIPMENT THAT THE GENERAL PRINCIPLES UNDERLYING THOSE CASES DO NOT
REACH THE ISSUE BEFORE US. 

FINALLY, THE EXTENSION OF A SHIPOWNER'S ABSOLUTE LIABILITY SO AS TO
INCLUDE THE UNSEAWORTHINESS OF EQUIPMENT OWNED AND BROUGHT ON BOARD BY
A STEVEDORING CONTRACTOR MAKES SUCH A MARKED CHANGE IN THE TRADITIONAL
RESPONSIBILITY OF A SHIPOWNER AS TO CALL FOR LEGISLATIVE AUTHORIZATION
RATHER THAN MERE JUDICIAL RECOGNITION.  "THE LEGISLATIVE PROCESS IS
PECULIARLY ADAPTED TO DETERMINE WHICH OF THE MANY POSSIBLE SOLUTIONS TO
THIS PROBLEM WOULD BE MOST BENEFICIAL IN THE LONG RUN."  HALCYON LINES
V. HAENN SHIP CORP., 342 U.S. 282, 286.  THAT STATEMENT WAS MADE WHEN
THIS COURT DECLINED TO RECOGNIZE JUDICIALLY THE DOCTRINE OF
CONTRIBUTION BETWEEN JOINT TORT-FEASORS AS A SHIPOWNER'S REMEDY AGAINST
A STEVEDORING CONTRACTOR.  THE STATEMENT IS EQUALLY APPROPRIATE HERE. 
IN FACT, CONGRESS ALREADY HAS DEMONSTRATED ITS INTEREST HERE THROUGH
THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 44 STAT. 1424,
33 U.S.C. SEC. 901 ET SEQ. THAT ACT INSURES COMPENSATION TO STEVEDORES
IN COMPARABLE CASES WITHOUT PROOF OF NEGLIGENCE.  IT SPECIFICALLY
EXCLUDES FROM ITS OPERATION MEMBERS OF THE SHIP'S CREW AND PERSONS
EMPLOYED BY THE MASTER TO LOAD, UNLOAD OR REPAIR "ANY SMALL VESSEL
UNDER EIGHTEEN TONS NET."  (FN8)  IT WAS THUS TAILORED, IN 1927, TO
PROVIDE PRECISELY THE KIND OF RELIEF THAT CONGRESS PREFERRED IN LIEU OF
THAT PROVIDED BY THIS COURT, IN 1926, THROUGH INTERNATIONAL STEVEDORING
CO. V. HAVERTY, 272 U.S. 50. 

FOR THE FOREGOING REASONS, THE JUDGMENT SHOULD BE REVERSED AND THE
EXTENSION OF LIABILITY WHICH IT INTRODUCED SHOULD BE LEFT TO
LEGISLATIVE INITIATIVE.  IN ANY EVENT, THE EFFECT OF IT SHOULD BE
RESTRICTED TO ITS FACTS. 

FN1  SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85. 

FN2  POPE & TALBOT V. HAWN, 346 U.S. 406. 

FN3  THE RECORD SHOWS THAT THE TRIAL COURT FOUND "THERE WAS NO PROOF
AS TO THE OWNERSHIP OF SAID BLOCK."  THE TRIAL COURT ALSO SAID THAT -
"THE SNATCH BLOCK IN QUESTION, AT THE TIME OF THE ACCIDENT, WAS NOT
UNDER THE CONTROL OR SUPERVISION OF THE RESPONDENT (SHIPOWNER) BUT WAS
UNDER THE EXCLUSIVE CONTROL AND SUPERVISION OF THE LIBELANT
(PETTERSON), HIS EMPLOYER AND HIS EMPLOYER'S AGENTS. 

     *         *         *  *         * 

"THE LIBELANT HAS FAILED TO ESTABLISH, THROUGH THE EVIDENCE
INTRODUCED, THAT THE SNATCH BLOCK INVOLVED, WHICH APPARENTLY CAUSED THE
ACCIDENT AND INJURY TO THE LIBELANT, BELONGED TO OR WAS PART OF THE
SHIP GEAR OF THE RESPONDENT (SHIPOWNER). 

"SUCH FINDING WAS CONCEDED, IN EFFECT, BY COUNSEL FOR LIBELANT IN HIS
ARGUMENT. 

"PROCEEDING ON THAT ASSUMPTION, COUNSEL FOR LIBELANT ARGUED THAT THE
LOGIC OR REASONING OF THE CASE OF SEAS SHIPPING COMPANY, INC., V.
SIERACKI, 328 U.S. 85, WOULD IMPOSE THE OBLIGATION OF SEAWORTHINESS OF
THE VESSEL UPON RESPONDENT (SHIPOWNER) AS TO GEAR - IN THIS CASE A
SNATCH BLOCK - NOT BELONGING TO RESPONDENT BUT BEING USED BY THE
STEVEDORE IN LOADING THE SHIP. 

"THE COURT CAN NOT AGREE THAT THE SUPREME COURT RULING IN THAT CASE
WOULD JUSTIFY SUCH A CONCLUSION." 

THE COURT OF APPEALS SAID: 

"IT IS NOT CLEAR WHETHER THE BLOCK BELONGED TO THE SHIP OR THE
STEVEDORING CO., IT BEING THE TYPE OF EQUIPMENT COMMONLY FOUND AS PART
OF THE GEAR OF BOTH SHIPS AND STEVEDORING FIRMS.  FOR THE PURPOSES OF
THIS APPEAL, IT WILL BE ASSUMED THAT IT WAS BROUGHT ON BOARD BY
STEVEDORING CO. ...  : 

"THE COURT BELOW GRANTED A DECREE FOR THE OWNER ON THE GROUND THAT IT
WAS NOT SHOWN THAT THE BLOCK BELONGED TO OR WAS A PART OF THE GEAR OF
THE SUSITNA.  PETTERSON'S ARGUMENT THAT LIABILITY SHOULD BE IMPOSED
EVEN IF THE GEAR BELONGED TO THE STEVEDORING CO. WAS REJECTED BY THE
COURT ON THE GROUND THAT SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85, 66
S. CT. 872, 90 L. ED. 1099, DID NOT GO SO FAR."  205 F.2D, AT 479. 

FN4  IN DISCUSSING THE STEVEDORE'S RELATION TO HIS IMMEDIATE
EMPLOYER, THE INDEPENDENT STEVEDORING CONTRACTOR, THE COURT ASSUMED
THAT IN THE USUAL CASE SUCH A CONTRACTOR LIKEWISE SUPPLIED NO
EQUIPMENT.  IT SAID:  "THE LATTER (CONTRACTOR) ORDINARILY HAS NEITHER
RIGHT NOR OPPORTUNITY TO DISCOVER OR REMOVE THE CAUSE OF THE PERIL AND
IT IS DOUBTFUL, THEREFORE, THAT HE OWES TO HIS EMPLOYEES, WITH RESPECT
TO THESE HAZARDS, THE EMPLOYER'S ORDINARY DUTY TO FURNISH A SAFE PLACE
TO WORK, UNLESS PERHAPS IN CASES WHERE THE PERILS ARE OBVIOUS OR HIS
OWN ACTION CREATES THEM."  328 U.S., AT 95.  THE INSTANT CASE IS AN
EXAMPLE OF THE LATTER CLASSIFICATION WHERE THE CONTRACTOR SUPPLIED THE
DEFECTIVE BLOCK AND IT WAS TAKEN ON BOARD BY HIS EMPLOYEES.  THE
IMPLICATION IS THAT, UNDER SUCH CIRCUMSTANCES, THE LIABILITY SHOULD
REST ON THE CONTRACTOR RATHER THAN UPON THE SHIPOWNER.  THE INJURY
WOULD THEN BE COVERED BY THE STEVEDORE'S ABSOLUTE RIGHT TO COMPENSATION
PROVIDED BY CONGRESS IN THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, 44 STAT. 1424, 33 U.S.C. SEC. 901 ET SEQ. 

FN5  FOR A STATEMENT OF THE CONTRAST BETWEEN THE TRADITIONAL WARDS OF
THE ADMIRALTY AND MODERN LONGSHOREMEN, SEE DISSENT IN POPE & TALBOT V.
HAWN, 346 U.S. 406, 423-426; ISBRANDTSEN CO. V. JOHNSON, 343 U.S. 779,
782-789; NORRIS, THE SEAMAN AS WARD OF THE ADMIRALTY, 52 MICH. L. REV.
479.  FOR A CONDENSED REVIEW OF THE DEVELOPMENT OF THE LAW IN THIS
GENERAL FIELD, SEE HOWE, RIGHTS OF MARITIME WORKERS, 5 NACCA L.J. 146,
AND 6 NACCA L.J. 131. 

FN6  SEE ROGERS V. UNITED STATES LINES, 205 F.2D 57, PENDING HERE ON
PETITION FOR CERTIORARI; 2 NORRIS, THE LAW OF SEAMEN (1952), 251-253;
ROBINSON ON ADMIRALTY (1939) 303-307; RECENT CASES, 102 U. OF PA. L.
REV. 402-404. 

FN7  SEE STRIKA V. NETHERLANDS MINISTRY OF TRAFFIC, 185 F.2D 555,
ALLOWING RECOVERY FROM A SHIPOWNER FOR AN INJURY SUFFERED BY A
LONGSHOREMAN WHILE ON SHORE, BUT CAUSED BY THE SHIP'S UNSEAWORTHY
TACKLE.   FN8  44 STAT. 1426, 33 U.S.C. SEC. 903. 
..END :





















BROWNELL V. SINGER 347 U.S. 403 


NO. 401.  ARGUED MARCH 8, 1954 - DECIDED APRIL 5, 1954. 


THE JUDGMENT BELOW IS REVERSED ON THE AUTHORITY OF ZITTMAN V. MCGRATH,
341 U.S. 471. 

BROWNELL, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN,
V. SINGER. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.* 

*TOGETHER WITH NO. 402, SUPERINTENDENT OF BANKS OF THE STATE OF NEW
YORK, LIQUIDATOR, V. SINGER, ALSO ON CERTIORARI TO THE SAME COURT. 

PER CURIAM. 

REVERSED.  ZITTMAN V. MCGRATH, 341 U.S. 471. 

THE CHIEF JUSTICE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE FRANKFURTER AND MR.
JUSTICE DOUGLAS JOIN, DISSENTING. 

THE COURT'S ONE-WORD DECISION REVERSES CONCURRING JUDGMENTS OF THREE
HIGHLY RESPECTED COURTS - THE COURT OF APPEALS OF NEW YORK, THE
APPELLATE DIVISION OF THE SUPREME COURT, FIRST DEPARTMENT, AND THE
SUPREME COURT, SPECIAL TERM, NEW YORK COUNTY.  IT CITES A SINGLE CASE,
THE IMPLICATION BEING THAT THE CITED AUTHORITY SETTLED THE QUESTION SO
FULLY AND PLAINLY THAT A CONTRARY RESULT COULD HAVE BEEN REACHED BY THE
THREE LOWER COURTS ONLY BY FAILURE TO READ OR HEED IT.  I THINK THIS
COURT OWES THOSE COURTS AND THE LEGAL PROFESSION SOMETHING MORE THAN A
REFERENCE TO AN INAPPLICABLE DECISION.  THE FACTS OF THIS CASE PRESENT
NOVEL QUESTIONS THAT THIS COURT SHOULD FACE AND ON WHICH IT SHOULD
RENDER A REASONED DECISION. 

THE YOKOHAMA SPECIE BANK ESTABLISHED ITS NEW YORK AGENCY, PURSUANT TO
THE STATE'S PERMISSION, UNDER A STATUTE WHICH PROVIDED THAT THE BANK'S
ASSETS IN THE STATE SHOULD BE SUBJECT TO THE CLAIMS OF CREDITORS
ARISING OUT OF TRANSACTIONS WITH THE NEW YORK AGENCY IN PREFERENCE TO
OTHER CLAIMS.  ON DECEMBER 8, 1941, WHEN WAR WAS DECLARED WITH JAPAN,
THIS AGENCY WAS IN THE POSSESSION OF THE UNITED STATES TREASURY, WHICH
WAS SUPERVISING FREEZING CONTROLS OVER JAPANESE NATIONALS.  THE AGENCY
WAS IMMEDIATELY SURRENDERED TO THE NEW YORK SUPERINTENDENT OF BANKS FOR
LIQUIDATION UNDER STATE LAW.  THIS RESPONDENT'S CLAIM WAS ESTABLISHED
THEREAFTER AS ENTITLED TO THE PREFERENCES OF THE NEW YORK LAW BUT WAS
PAYABLE ONLY AFTER A FEDERAL LICENSE THEREFOR, AND THAT POSITION WAS
CONFIRMED BY THIS COURT.  LYON V. SINGER, 339 U.S. 841. 

IN 1942, THE PRESIDENT, PURSUANT TO STATUTORY AUTHORITY, CREATED THE
OFFICE OF ALIEN PROPERTY CUSTODIAN.  AS TO PROPERTY IN THE PROCESS OF
ADMINISTRATION UNDER JUDICIAL SUPERVISION, THE CUSTODIAN WAS AUTHORIZED
TO SEIZE ONLY THAT "WHICH IS PAYABLE OR DELIVERABLE TO, OR CLAIMED BY,
A DESIGNATED ENEMY COUNTRY OR NATIONAL THEREOF."  THIS FUND, EARMARKED
FOR PAYMENT TO AN AMERICAN CREDITOR, IS NOT WITHIN THAT DESCRIPTION. 
NO OTHER AUTHORITY FOR DEMANDING ITS TURNOVER CAN BE FOUND. 

IN SEPTEMBER OF 1942, THE CUSTODIAN ASSERTED POWER OF SUPERVISION
OVER THE LIQUIDATION OF THE NEW YORK AGENCY BUT ADVISED THE
SUPERINTENDENT OF BANKS TO CONTINUE HIS LIQUIDATION OF THE BUSINESS AND
PROPERTY IN NEW YORK.  HE REQUESTED THE SUPERINTENDENT TO ADVISE HIM OF
ALL CLAIMS WHICH HE INTENDED TO ACCEPT AND TO NOTIFY HIM WHEN HE HAD
LIQUIDATED ASSETS SUFFICIENT TO PAY AND HAD PAID ALL ACCEPTED AND
ESTABLISHED CLAIMS AND EXPENSES OF LIQUIDATION IN ORDER THAT THE
CUSTODIAN MIGHT TAKE SUCH ACTION "AT THAT TIME WITH RESPECT TO THE
ASSETS REMAINING IN YOUR HANDS" AS HE MIGHT DEEM NECESSARY. 
THEREAFTER, AS VARIOUS CLAIMS WERE ALLOWED PAYABLE TO PREFERRED
CREDITORS WHO WERE ENEMY NATIONALS, THE CUSTODIAN ISSUED VESTING ORDERS
SEIZING SUCH FUNDS AS WERE SET ASIDE FOR THEIR PAYMENT.  OF COURSE, HE
CANNOT SEIZE THIS CLAIM ON SUCH A BASIS, FOR THE CLAIMANT IS NOT AN
ENEMY ALIEN. 

ON FEBRUARY 15, 1943, THE CUSTODIAN ISSUED VESTING ORDER NO. 915.  BY
IT, HE ONLY PURPORTED TO VEST IN HIMSELF THE EXCESS PROCEEDS OF THE
LIQUIDATION REMAINING AFTER THE PAYMENT OF CREDITORS HAVING CLAIMS
ACCEPTED OR ESTABLISHED IN ACCORDANCE WITH THE BANKING LAW OF NEW
YORK.  SINCE SUCH EXCESS FUNDS, UNDER THAT LAW, WERE PAYABLE TO THE
JAPANESE BANK, THIS WAS OBVIOUSLY A PROPER VESTING.  BUT THE LIMITATION
OF THE VESTING ORDER TO SUCH EXCESS WAS NO ACCIDENT OR OVERSIGHT.  IN
ANNUAL REPORTS TO THE PRESIDENT AND CONGRESS, THE CUSTODIAN REPEATEDLY
STATED, IN SUBSTANCE, THAT RIGHTS OF CREDITORS PREFERRED BY STATE LAWS
WOULD BE RESPECTED, AND ONLY THE EXCESS VESTED. 

THE TURNOVER ORDER NOW SUSTAINED BY THE COURT IS QUITE CONTRARY TO
THIS POLICY AND WAS NOT ISSUED UNTIL SEPTEMBER 5, 1950, OVER FIVE YEARS
AFTER THE CESSATION OF HOSTILITIES WITH JAPAN AND OVER EIGHT YEARS
AFTER THE TASK OF ADMINISTRATION WAS LEFT TO THE SUPERINTENDENT OF
BANKS. 

THE FUND OF OVER A HALF-MILLION DOLLARS WHICH THE ATTORNEY GENERAL AS
SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN NOW DEMANDS BE PAID OVER TO
HIM IS A FUND SPECIFICALLY HELD AND EARMARKED BY THE SUPERINTENDENT OF
BANKS FOR THE PAYMENT OF THE CLAIM WHICH WE HAVE PREVIOUSLY UPHELD AS
ENTITLED TO A PREFERENCE UNDER NEW YORK LAW.  LYON V. SINGER, SUPRA. 

ALL FUNDS IN THE HANDS OF THE SUPERINTENDENT IN EXCESS OF ALLOWED OR
ESTABLISHED CLAIMS HAVE BEEN DEMANDED BY THE CUSTODIAN, AND THE NEW
YORK SUPREME COURT HAS AUTHORIZED THEIR PAYMENT, AS UNDER NEW YORK LAW
SUCH EXCESS IS PAYABLE TO THE JAPANESE BANK.  THE NEW YORK COURTS,
HOWEVER, HAVE REFUSED TO ALLOW THE SUPERINTENDENT TO TURN OVER THE
FUNDS ALLOCATED TO THE SATISFACTION OF THE JUDGMENT IN FAVOR OF
RESPONDENT AND AFFIRMED BY US, TO BE PAID IF AND WHEN LICENSED BY THE
ATTORNEY GENERAL. 

ZITTMAN V. MCGRATH, 341 U.S. 471, CANNOT SERVE AS A SUPPORTING
AUTHORITY FOR THIS DECISION.  IN ZITTMAN THE CUSTODIAN DEMANDED
TRANSFER OF A CREDIT FROM A DEBTOR BANK WHICH HAD NO INTEREST IN THE
CREDIT EXCEPT THAT OF A STAKEHOLDER.  HERE THE CUSTODIAN WOULD SEIZE A
FUND FROM AN OFFICER OF THE STATE OF NEW YORK WHO IS ADMINISTERING IT
PURSUANT TO HIS STATUTORY DUTY AND UNDER THE SUPERVISION OF THE SUPREME
COURT OF THAT STATE.  IN ZITTMAN THE CLAIMS ADVERSE TO THE CUSTODIAN
RESTED ON AN ASSERTION OF PRIVATE RIGHTS AND IN NO OTHER WAY INVOLVING
THE PUBLIC INTEREST.  HERE THERE IS A CLASH BETWEEN TWO PUBLIC
INTERESTS.  NEW YORK, THROUGH ITS SUPERINTENDENT OF BANKS, TOOK
POSSESSION OF THE YOKOHAMA BANK ASSETS FOR ADMINISTRATION PURSUANT TO
ITS OWN PUBLIC POLICY OF PROTECTING CREDITORS OF INSTITUTIONS ALLOWED
TO DO BUSINESS IN THE STATE OF NEW YORK.  AFTER A LAPSE OF MANY YEARS,
THE ATTORNEY GENERAL NOW WOULD SEIZE IT FROM HIM TO APPLY A DIFFERENT
PUBLIC POLICY - THAT OF THE FEDERAL GOVERNMENT. 

MOREOVER, IN ZITTMAN THE VESTING ORDER SPECIFICALLY VESTED DEBTS OWED
TO A FOREIGN NATIONAL BY A NEW YORK DEBTOR BANK AND DEBTS EVIDENCED BY
INSTRUMENTS ENDORSED BY THE FOREIGN NATIONAL AND HELD BY A FEDERAL
RESERVE BANK.  THOSE DEBTS CONSTITUTED THE PRECISE FUNDS SOUGHT BY THE
LITIGANT.  IN THIS CASE, THE VESTING ORDER PURPORTED TO VEST ONLY SUCH
EXCESS PROCEEDS AS REMAINED AFTER PAYMENT OF ESTABLISHED CLAIMS, AND
RESPONDENT SHOWS THAT HIS IS SUCH A CLAIM.  HIS POSITION, THAT THE
FUNDS HE SEEKS WERE NEVER VESTED BY THE CUSTODIAN, IS NOT ANALOGOUS TO
THAT OF THE PETITIONER IN ZITTMAN. 

SOME EFFORT WAS MADE ON ARGUMENT TO RECONSIDER WHETHER THIS CLAIM IS
ENTITLED TO A PREFERENCE UNDER THE BANKING LAW OF NEW YORK.  THE CLAIM
AROSE OUT OF A FOREIGN EXCHANGE TRANSACTION.  PRIOR TO THE WAR, THE
STANDARD VACUUM OIL COMPANY WAS DELIVERING OIL TO JAPANESE PURCHASERS
WHO PAID IN YEN.  IT IS NOT QUESTIONED THAT SUCH SALES WERE IN
ACCORDANCE WITH THE NATIONAL POLICY OF THE UNITED STATES AT THAT TIME. 
STANDARD ENTERED INTO AN AGREEMENT WITH THE YOKOHAMA BANK UNDER WHICH
IT SOLD THE YEN TO THE BANK IN JAPAN AND WAS TO RECEIVE CREDIT IN
DOLLARS IN NEW YORK.  THIS MANNER OF REMITTING FUNDS WAS CONVENTIONAL
AND WAS THE FUNCTION WHICH THE NEW YORK BRANCH OF A FOREIGN BANK WOULD
BE EXPECTED TO FACILITATE.  THE NEW YORK COURTS HELD THAT CREDITORS
CREATED BY SUCH A FOREIGN EXCHANGE TRANSACTION, INCLUDING RESPONDENT,
WERE AMONG THOSE WHOM THE NEW YORK STATUTES SOUGHT TO PROTECT OUT OF
THE NEW YORK ASSETS.  IN THE SINGER CASE, SUPRA, WE APPROVED THAT
HOLDING.  UNLESS EVERY PRINCIPLE OF RES JUDICATA IS TO BE DISREGARDED
BY THIS COURT, IT IS BOUND BY ITS HOLDING THAT THIS IS A PREFERRED
CLAIM UNDER THE NEW YORK BANKING LAW. 

IT WAS INTIMATED IN ARGUMENT THAT THE PURPOSE OF SEIZURE OF THIS FUND
IS TO DEFEAT THE PREFERENCE FOR THIS CLAIM IN THE INTEREST OF OTHER
CREDITORS OUTSIDE OF NEW YORK WHO WILL NOT BE PAID IN FULL.  THIS WOULD
MEAN A DISTRIBUTION OF THE NEW YORK ASSETS AT ODDS WITH THE NEW YORK
BANKING LAW.  BUT IT IS APPARENT THAT A LARGE NUMBER OF NEW YORK
CREDITORS HAVE BEEN PAID IN FULL FROM THE NEW YORK ASSETS, AND JUST WHY
THIS CREDITOR, WHO STANDS ON AN EQUALITY WITH THEM, SHOULD BE DEPRIVED
OF HIS CLAIM OF PREFERENCE WHILE THE OTHERS RETAIN THEIRS IS HARD TO
UNDERSTAND. 

THIS COURT HAS BEEN RATHER INSISTENT THAT STATE COURTS DISCLOSE THE
REASONING BEHIND THEIR JUDGMENTS.*  I THINK THE COURT SHOULD
RECIPROCATE WHEN FACED WITH ISSUES AS SERIOUS AND AS DOUBTFUL AS THOSE
RAISED IN THIS CASE. 

*E.G., MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551; LOFTUS V.
ILLINOIS, 334 U.S. 804; CHICAGO V. WILLETT CO., 341 U.S. 913. 
..END :

















WALTERS V. CITY OF ST. LOUIS 347 U.S. 231 


NO. 389.  ARGUED FEBRUARY 2-3, 1954 - DECIDED MARCH 15, 1954 - 364 MO. -
, 259 S.W.2D 377, AFFIRMED. 


PURSUANT TO A STATE STATUTE, A CITY PROMULGATED AN ORDINANCE LEVYING
AN INCOME TAX ON THE GROSS SALARIES AND WAGES OF EMPLOYED PERSONS BUT
ONLY ON THE NET PROFITS OF SELF-EMPLOYED PERSONS, OF CORPORATIONS AND
OF BUSINESS ENTERPRISES AFTER DEDUCTING THE NECESSARY EXPENSES OF
OPERATION.  A FEW DAYS AFTER THE EFFECTIVE DATE OF THE ORDINANCE AND
BEFORE ITS ACTUAL APPLICATION COULD BE ASCERTAINED, CERTAIN WAGE
EARNERS SUED IN A STATE COURT FOR A DECLARATORY JUDGMENT THAT THE TAX
WAS VOID AND FOR AN INJUNCTION TO PREVENT THEIR EMPLOYER FROM
WITHHOLDING THE TAX AND THE CITY FROM COLLECTING IT.  THERE WAS NO
ISSUE AS TO EXTRATERRITORIAL APPLICATION OF THE TAX OR AS TO ANY BURDEN
ON INTERSTATE COMMERCE.  HELD:  ON ITS FACE, NEITHER THE STATUTE NOR
THE ORDINANCE VIOLATES THE DUE PROCESS CLAUSE OR THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 232-238. 

(A)  SINCE THE STATE SUPREME COURT DID NOT PASS ON THE INTERPRETATION
OR VALIDITY OF THE ADMINISTRATIVE REGULATIONS ISSUED UNDER THE
ORDINANCE, THIS COURT WILL NOT DO SO.  P. 233. 

(B)  IN VIEW OF WIDESPREAD TAXING PRACTICES, IT CANNOT BE SAID THAT
THE DIFFERENCE BETWEEN INCOME FROM SALARIES AND WAGES AND INCOME FROM
PROFITS OF BUSINESS IS INSIGNIFICANT OR FANCIFUL; AND A DIFFERENCE IN
TREATMENT OF TAXPAYERS BASED ON SUCH A CLASSIFICATION OF SOURCES OF
INCOME IS NOT PER SE A PROHIBITED DISCRIMINATION.  QUAKER CITY CAB CO.
V. PENNSYLVANIA, 277 U.S. 389, DISTINGUISHED.  PP. 236-237. 

(C)  EQUAL PROTECTION ONLY REQUIRES THAT CLASSIFICATION REST ON REAL
AND NOT FEIGNED DIFFERENCES, THAT THE DISTINCTION HAVE SOME RELEVANCE
TO THE PURPOSE FOR WHICH THE CLASSIFICATION IS MADE, AND THAT THE
DIFFERENT TREATMENTS BE NOT SO DISPARATE, RELATIVE TO THE DIFFERENCE IN
CLASSIFICATION, AS TO BE WHOLLY ARBITRARY.  PP. 237-238. 

WALTERS ET AL. V. CITY OF ST. LOUIS ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL CHALLENGES A MUNICIPAL INCOME TAX ORDINANCE WHICH EXCISES
GROSS SALARIES AND WAGES OF THE EMPLOYED BUT ONLY NET PROFITS OF THE
SELF-EMPLOYED, OF CORPORATIONS AND OF BUSINESS ENTERPRISES. 
APPELLANTS, WHO ARE WAGE EARNERS, SUED IN THE STATE COURTS FOR A
DECLARATORY JUDGMENT AND INJUNCTION TO PREVENT THEIR EMPLOYER FROM
WITHHOLDING THE TAX AND THE CITY FROM COLLECTING IT. THEIR CONTENTION
IS THAT THE DISCRIMINATION BETWEEN WAGES AND PROFITS WHICH RESULTS FROM
ALLOWING CERTAIN DEDUCTIONS ONLY TO PROFITS VIOLATES THE DUE PROCESS
AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.  IT HAS BEEN
OVERRULED BY THE STATE COURTS AND IS BROUGHT HERE FOR DETERMINATION. 

THE POWER OR JURISDICTION OF THE CITY TO TAX THESE APPELLANTS ON
THEIR EARNINGS IS NOT OPEN TO QUESTION ON FEDERAL GROUNDS.  THERE IS NO
ISSUE AS TO EXTRATERRITORIAL APPLICATION OF THE TAX OR AS TO BURDEN
UPON INTERSTATE COMMERCE.  THE TAXPAYERS, THE WITHHOLDING EMPLOYER, THE
TAXABLE INCOME EARNED, WERE ALL CLEARLY WITHIN THE TERRITORIAL
JURISDICTION AND POWER OF THE STATE AND OF THE MUNICIPALITY TO WHICH
ITS TAXING AUTHORITY WAS DELEGATED.  THE SOLE QUESTION HERE IS WHETHER
IN LEVYING A TAX ON THOSE WHOM IT HAS PLENARY POWER TO TAX, THE CITY
HAS INTRODUCED CLASSIFICATION AND DISCRIMINATIONS SO UNREASONABLE AS TO
DENY TO APPELLANTS DUE PROCESS OR EQUAL PROTECTION OF THE LAW. 

A WEAKNESS OF THE APPELLANTS' CASE IS THAT ITS ANTICIPATORY CHARACTER
PRECLUDES CONSIDERATION OF ANY CONTENTIONS INSOFAR AS THEY DEPEND UPON
ACTUAL APPLICATION OF THE TAX OR THE REGULATIONS PROMULGATED FOR ITS
ADMINISTRATION.  THIS ACTION WAS COMMENCED ALMOST IMMEDIATELY AFTER THE
ACT BECAME EFFECTIVE.  A PORTION OF APPELLANTS' WAGES HAS BEEN WITHHELD
BY THEIR EMPLOYER, BUT THE CITY HAS NOT YET COLLECTED THE TAX.  THERE
IS NO EVIDENCE AS TO HOW THE AMOUNT WITHHELD FROM APPELLANTS COMPARES
WITH TAXES COLLECTED FROM SELF-EMPLOYED PERSONS OR BUSINESSES.  THE
COMPLAINT ATTACKS ONLY THE STATE LEGISLATIVE ACT DELEGATING POWER TO
THE CITY OF ST. LOUIS AND THE TAXING ORDINANCE ENACTED BY THAT CITY. 

IN THE COURTS BELOW THE APPELLANTS ALSO ATTEMPTED TO RELY UPON CLAIMS
OF DISCRIMINATION RESULTING FROM REGULATIONS ADOPTED BY THE MUNICIPAL
TAXING AUTHORITIES.  BUT THE SUPREME COURT OF MISSOURI HELD THE
REGULATIONS WERE NOT BEFORE THE COURT, DECLINED TO CONSIDER THEM TO BE
A PART OF THE ORDINANCE, AND INTIMATED THAT THE REGULATIONS MIGHT BE
HELD VOID HEREAFTER WITHOUT INVALIDATING THE ORDINANCE.  364 MO. - ,
259 S.W.2D 377.  MISSOURI AUTHORIZES A PETITION FOR AMENDMENT OR REPEAL
OF REGULATIONS PROMULGATED BY AN ADMINISTRATIVE OFFICER AND GRANTS A
FULL JUDICIAL REVIEW OF HIS FINAL DECISION THEREON OR ANY OTHER ORDER
THAT AFFECTS PRIVATE RIGHTS.  (FN1)  APPELLANTS HAVE TAKEN NO STEPS TO
PROCURE SUCH RELIEF.  WE ARE UNINFORMED EITHER AS TO WHAT THE
ADMINISTRATIVE PRACTICE ACTUALLY IS OR WHETHER IT CONFORMS WITH
MISSOURI LAW.  OF COURSE, WE WILL NOT UNDERTAKE TO REVIEW WHAT THE
COURT BELOW DID NOT DECIDE.  THE STATE COURT HAS NOT PASSED ON ANY
QUESTION OF DISCRIMINATION ARISING FROM THE REGULATIONS OR ANY QUESTION
AS TO THE INTERPRETATION OR VALIDITY THEREOF.  WE HAVE HERE ONLY THE
VERY LIMITED ISSUE - DOES THE STATUTE OR THE ORDINANCE ON ITS FACE
VIOLATE THE FOURTEENTH AMENDMENT? 

THE ACT OF THE MISSOURI LEGISLATURE IS SIMPLY A GENERAL ENABLING ACT,
SO FAR AS RELEVANT, AUTHORIZING THE CITY TO LEVY "AN EARNINGS TAX ON
THE SALARIES, WAGES, COMMISSIONS AND OTHER COMPENSATION EARNED BY ITS
RESIDENTS; ...  ON THE NET PROFITS OF ASSOCIATIONS, BUSINESSES OR OTHER
ACTIVITIES CONDUCTED BY RESIDENTS; ...  AND ON THE NET PROFITS EARNED
BY ALL CORPORATIONS AS THE RESULT OF WORK DONE OR SERVICES PERFORMED OR
RENDERED AND BUSINESS OR OTHER ACTIVITIES CONDUCTED IN THE CITY." 
(FN2)  HOWEVER, IT AUTHORIZES THE MUNICIPALITY TO PROVIDE "FOR
DEDUCTIONS AND EXEMPTIONS FROM SALARIES, WAGES AND COMMISSIONS OF
EMPLOYEES  ...  ."  (FN3)  IT DIRECTS THAT NET PROFITS SHALL BE
ASCERTAINED "BY DEDUCTING THE NECESSARY EXPENSES OF OPERATION FROM THE
GROSS PROFITS OR EARNINGS."  (FN4)  IT DOES NOT LIMIT DEDUCTIONS
ALLOWABLE TO WAGE EARNERS OR DEFINE THE NECESSARY EXPENSES ALLOWABLE IN
ARRIVING AT NET PROFITS. 

AS TO THE MATTERS COMPLAINED OF, THE ORDINANCE IS ALMOST AS GENERAL. 
IT IMPOSES THE SAME RATE OF TAX ON SALARIES, WAGES, COMMISSIONS AND
OTHER EARNED COMPENSATION OF INDIVIDUALS AS IT DOES ON THE NET PROFITS
OF THE SELF-EMPLOYED, CORPORATIONS, ASSOCIATIONS AND BUSINESSES.  (FN5)
BUT IT DOES NOT MAKE ANY EXPRESS PROVISION FOR DEDUCTIONS FROM EARNED
INCOME BY WAGE EARNERS SUCH AS APPELLANTS.  AS TO THOSE IN BUSINESS, IT
PROVIDES GENERALLY FOR DEDUCTING "THE NECESSARY EXPENSES OF OPERATION
FROM THE GROSS PROFITS OR EARNINGS."  (FN6)  IT DOES NOT DEFINE
NECESSARY EXPENSES, BUT IT AUTHORIZES THE CITY COLLECTOR TO PROMULGATE
APPROPRIATE RULES AND REGULATIONS.  (FN7) 

APPELLANTS CLAIM THAT THE ORDINANCE WILL ALLOW SELF-EMPLOYED PERSONS
AND BUSINESSES TO DEDUCT SUCH ITEMS AS TAXES (WHICH APPELLANTS CLAIM
WILL INCLUDE FEDERAL INCOME TAXES) AND CHARITABLE CONTRIBUTIONS NOT IN
EXCESS OF FIVE PERCENT OF NET INCOME, WHICH DEDUCTIONS ARE NOT ALLOWED
TO THOSE WHO EARN WAGES OR SALARIES.  THIS MAY BE TRUE IF THE ORDINANCE
IS APPLIED AS THEY EXPECT.  WHETHER THIS WILL BE THE APPLICATION OF THE
TAX WE CANNOT TELL, FOR THE RECORD BEFORE US DOES NOT SHOW ITS ACTUAL
IMPACT ON CLASSES OF TAXPAYERS OR ITS METHODS OF ADMINISTRATION. 
THEREFORE, APPELLANTS' BASIC POSITION MUST BE THAT ANY LEGISLATIVE
CLASSIFICATION WHICH DISTINGUISHES ON ITS FACE BETWEEN WAGE EARNERS AND
THE SELF-EMPLOYED IS CONSTITUTIONALLY PROHIBITED. 

ON ITS FACE, THE ORDINANCE CLASSIFIES INCOMES FOR TAXATION ACCORDING
TO THEIR SOURCES, ONE CATEGORY CONSISTING OF SALARY AND WAGE INCOME AND
THE OTHER OF PROFITS FROM SELF-EMPLOYMENT OR BUSINESS ENTERPRISE. 
CLASSIFICATION OF EARNED INCOME AS AGAINST PROFITS IS NOT UNCOMMON,
SOMETIMES TO THE ADVANTAGE OF THE WAGE EARNER AND SOMETIMES TO HIS
DISADVANTAGE.  IT IS A CLASSIFICATION EMPLOYED EXTENSIVELY IN FEDERAL
TAXATION, WHICH UNDER APPROPRIATE CIRCUMSTANCES ALLOWS DEDUCTIONS TO
THE SELF-EMPLOYED NOT ALLOWED TO EMPLOYEES, (FN8) DISCRIMINATES SHARPLY
BETWEEN EARNED INCOME AND CAPITAL GAINS, (FN9) AND SETS APART CERTAIN
TYPES OF WAGE EARNINGS FOR SOCIAL SECURITY TAX AND FOR BENEFITS. 
(FN10)  WE CANNOT SAY THAT A DIFFERENCE IN TREATMENT OF THE TAXPAYERS
DERIVING INCOME FROM THESE DIFFERENT SOURCES IS PER SE A PROHIBITED
DISCRIMINATION.  THERE IS NOT SO MUCH SIMILARITY BETWEEN THEM THAT THEY
MUST BE PLACED IN PRECISELY THE SAME CLASSIFICATION FOR TAX PURPOSES. 

THE ASSERTION IS MADE THAT WAGE EARNERS AND SELF-EMPLOYED PERSONS ARE
IN COMPETITION ON THE SAME LEVEL OF ENDEAVOR, AND RELIANCE IS PLACED ON
SUCH CASES AS QUAKER CITY CAB CO. V. PENNSYLVANIA, 277 U.S. 389.  THERE
THE COURT FOUND DISCRIMINATION BETWEEN IDENTICAL SOURCES OF REVENUE
DEPENDING ONLY ON THE INCORPORATED OR UNINCORPORATED CHARACTER OF THE
TAXPAYER.  BUT HERE, VARYING TAXES ARE NOT LAID UPON TAXPAYERS ENGAGED
IN PRECISELY THE SAME FORM OF ACTIVITY.  INSTEAD, THIS IS A BROAD TAX
ON INCOME, AND THE INCOME SPRINGS FROM MANY ACTIVITIES CARRIED ON BY
MANY TYPES OF BUSINESS ENTITIES.  HERE THE CLASSIFICATION RESTS ON THE
STATE'S VIEW THAT WAGE OR SALARY INCOME IS RELATIVELY FIXED,
PREDICTABLE AND CERTAIN, WHILE PROFITS OF BUSINESS ARE FLUCTUATING AND
UNSTABLE.  IN VIEW OF WIDESPREAD TAXING PRACTICES, WE CANNOT SAY THAT
THIS DIFFERENCE IS INSIGNIFICANT OR FANCIFUL. 

THE POWER OF THE STATE TO CLASSIFY ACCORDING TO OCCUPATION FOR THE
PURPOSE OF TAXATION IS BROAD.  EQUAL PROTECTION DOES NOT REQUIRE
IDENTITY OF TREATMENT.  IT ONLY REQUIRES THAT CLASSIFICATION REST ON
REAL AND NOT FEIGNED DIFFERENCES, THAT THE DISTINCTION HAVE SOME
RELEVANCE TO THE PURPOSE FOR WHICH THE CLASSIFICATION IS MADE, AND THAT
THE DIFFERENT TREATMENTS BE NOT SO DISPARATE, RELATIVE TO THE
DIFFERENCE IN CLASSIFICATION, AS TO BE WHOLLY ARBITRARY.  CF. DOMINION
HOTEL, INC. V. ARIZONA, 249 U.S. 265; GREAT ATLANTIC & PACIFIC TEA CO.
V. GROSJEAN, 301 U.S. 412; NEW YORK RAPID TRANSIT CORP. V. CITY OF NEW
YORK, 303 U.S. 573; SKINNER V. OKLAHOMA EX REL. WILLIAMSON, 316 U.S.
535.  "IN ITS DISCRETION IT MAY TAX ALL, OR IT MAY TAX ONE OR SOME,
TAKING CARE TO ACCORD TO ALL IN THE SAME CLASS EQUALITY OF RIGHTS." 
SOUTHWESTERN OIL CO. V. TEXAS, 217 U.S. 114, 121.  IT MAY EVEN TAX
WHOLESALERS OF SPECIFIED ARTICLES ON ACCOUNT OF THEIR OCCUPATION
WITHOUT EXACTING A SIMILAR TAX ON THE OCCUPATIONS OF WHOLESALE DEALERS
IN OTHER ARTICLES.  OUR DISAPPROVAL OF THE WISDOM OR FAIRNESS OF SO
DOING IS NOT A GROUND FOR INTERFERENCE.  IBID.  "WHEN A STATE
LEGISLATURE ACTS WITHIN THE SCOPE OF ITS AUTHORITY IT IS RESPONSIBLE TO
THE PEOPLE, AND THEIR RIGHT TO CHANGE THE AGENTS TO WHOM THEY HAVE
ENTRUSTED THE POWER IS ORDINARILY DEEMED A SUFFICIENT CHECK UPON ITS
ABUSE.  WHEN THE CONSTITUTED AUTHORITY OF THE STATE UNDERTAKES TO EXERT
THE TAXING POWER, AND THE QUESTION OF THE VALIDITY OF ITS ACTION IS
BROUGHT BEFORE THIS COURT, EVERY PRESUMPTION IN ITS FAVOR IS INDULGED,
AND ONLY CLEAR AND DEMONSTRATED USURPATION OF POWER WILL AUTHORIZE
JUDICIAL INTERFERENCE WITH LEGISLATIVE ACTION."  GREEN V. FRAZIER, 253
U.S. 233, 239.  JUDGMENT AFFIRMED. 

FN1  MO. CONST., ART. 5, SEC. 22, PROVIDES:  "ALL FINAL DECISIONS,
FINDINGS, RULES AND ORDERS OF ANY ADMINISTRATIVE OFFICER OR BODY
EXISTING UNDER THE CONSTITUTION OR BY LAW, WHICH ARE JUDICIAL OR QUASI
JUDICIAL AND AFFECT PRIVATE RIGHTS, SHALL BE SUBJECT TO DIRECT REVIEW
BY THE COURTS AS PROVIDED BY LAW; AND SUCH REVIEW SHALL INCLUDE THE
DETERMINATION WHETHER THE SAME ARE AUTHORIZED BY LAW, AND IN CASES IN
WHICH A HEARING IS REQUIRED BY LAW, WHETHER THE SAME ARE SUPPORTED BY
COMPETENT AND SUBSTANTIAL EVIDENCE UPON THE WHOLE RECORD."  THIS
PROVISION IS SUPPLEMENTED BY MO. REV. STAT. ANN., 1949, SECS. 536.010
536.140. 

FN2  "ANY CONSTITUTIONAL CHARTER CITY IN THIS STATE WHICH NOW HAS OR
MAY HEREAFTER ACQUIRE A POPULATION IN EXCESS OF SEVEN HUNDRED THOUSAND
INHABITANTS, ACCORDING TO THE LAST FEDERAL DECENNIAL CENSUS, IS HEREBY
AUTHORIZED TO LEVY AND COLLECT, BY ORDINANCE FOR GENERAL REVENUE
PURPOSES, AN EARNINGS TAX ON THE SALARIES, WAGES, COMMISSIONS AND OTHER
COMPENSATION EARNED BY ITS RESIDENTS; ON THE SALARIES, WAGES,
COMMISSIONS AND OTHER COMPENSATION EARNED BY NONRESIDENTS OF THE CITY
FOR WORK DONE OR SERVICES PERFORMED OR RENDERED IN THE CITY; ON THE NET
PROFITS OF ASSOCIATIONS, BUSINESSES OR OTHER ACTIVITIES CONDUCTED BY
RESIDENTS; ON THE NET PROFITS OF ASSOCIATIONS, BUSINESSES OR OTHER
ACTIVITIES CONDUCTED IN THE CITY BY NONRESIDENTS; AND ON THE NET
PROFITS EARNED BY ALL CORPORATIONS AS THE RESULT OF WORK DONE OR
SERVICES PERFORMED OR RENDERED AND BUSINESS OR OTHER ACTIVITIES
CONDUCTED IN THE CITY."  MO. REV. STAT. ANN. (1953 SUPP.), SEC.
92.110. 

FN3  "THE MUNICIPAL ASSEMBLY OF ANY SUCH CITY MAY PROVIDE FOR
DEDUCTIONS AND EXEMPTIONS FROM SALARIES, WAGES AND COMMISSIONS OF
EMPLOYEES AND MAY PROVIDE FOR EXEMPTIONS ON ACCOUNT OF THE WIVES,
HUSBANDS AND DEPENDENTS OF SUCH EMPLOYEES."  MO. REV. STAT. ANN. (1953
SUPP.), SEC. 92.140. 

FN4  "THE NET PROFITS OR EARNINGS OF ASSOCIATIONS, BUSINESSES OR
OTHER ACTIVITIES, AND CORPORATIONS SHALL BE ASCERTAINED AND DETERMINED
BY DEDUCTING THE NECESSARY EXPENSES OF OPERATION FROM THE GROSS PROFITS
OR EARNINGS."  MO. REV. STAT. ANN. (1953 SUPP.), SEC.  92.150. 

FN5  THE PERTINENT PART OF THE ORDINANCE IS AS FOLLOWS:  "A TAX FOR
GENERAL REVENUE PURPOSES OF ONE-HALF OF ONE PER CENTUM IS HEREBY
IMPOSED ON (A) SALARIES, WAGES, COMMISSIONS AND OTHER COMPENSATION
EARNED AFTER AUGUST 31, 1952, BY RESIDENT INDIVIDUALS OF THE CITY,
INCLUDING THE ENTIRE DISTRIBUTIVE SHARE OF ANY MEMBER OF A PARTNERSHIP
OR ASSOCIATION, LESS THE AMOUNT THEREOF, IF ANY, WHICH MAY BE SHOWN TO
HAVE BEEN TAXED UNDER THE PROVISIONS HEREOF TO SAID ASSOCIATION OR
PARTNERSHIP; AND ON (B) SALARIES, WAGES, COMMISSIONS AND OTHER
COMPENSATION EARNED AFTER AUGUST 31, 1952, BY NON-RESIDENT INDIVIDUALS
OF THE CITY, FOR WORK DONE OR SERVICES PERFORMED OR RENDERED IN THE
CITY; AND ON (C) THE NET PROFITS EARNED AFTER AUGUST 31, 1952, OF
ASSOCIATIONS, BUSINESSES, OR OTHER ACTIVITIES CONDUCTED BY A RESIDENT
OR RESIDENTS, AND ON (D) THE NET PROFITS EARNED AFTER AUGUST 31, 1952,
OF ASSOCIATIONS, BUSINESSES, OR OTHER ACTIVITIES CONDUCTED IN THE CITY
BY A NON-RESIDENT OR NON-RESIDENTS; AND (E) ON THE NET PROFITS EARNED
AFTER AUGUST 31, 1952, BY ALL CORPORATIONS AS A RESULT OF WORK DONE OR
SERVICES PERFORMED OR RENDERED, AND BUSINESS OR OTHER ACTIVITIES
CONDUCTED IN THE CITY."  CITY OF ST. LOUIS ORDINANCE 46222, SEC. 2. 

FN6  SECTION 1 OF THE ORDINANCE DEFINES "NET PROFITS" AS USED IN SEC.
2 AS "THE NET INCOME OF ANY ASSOCIATION, BUSINESS OR CORPORATION
REMAINING AFTER DEDUCTING THE NECESSARY EXPENSES OF OPERATION FROM THE
GROSS PROFITS OR EARNINGS." 

FN7  SECTION 9 OF THE ORDINANCE.    FN8  E.G., I.R.C., SECS. 22(N),
23(AA). 

FN9  COMPARE I.R.C., SEC. 22(A), WITH I.R.C., SECS. 117(B), (C). 

FN10  E.G., I.R.C., SECS. 1400, 1426. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, CONCURRING IN
THE RESULT. 

I AM LESS CONFIDENT THAN MY BRETHREN THAT THE SUPREME COURT OF
MISSOURI DID NOT PASS ON THE REGULATIONS AS WELL AS THE ORDINANCE.  BUT
I BOW TO THEIR READING OF THE RECORD, SAVING FOR A FUTURE DAY THE
SERIOUS AND SUBSTANTIAL QUESTION UNDER THE EQUAL PROTECTION CLAUSE
RAISED BY THE REGULATIONS WHICH GRANT EMPLOYERS DEDUCTIONS FOR TAXES
PAID THE FEDERAL GOVERNMENT, YET DO NOT ALLOW EMPLOYEES A DEDUCTION FOR
THE SAME TAX. 
..END :




FEDERAL POWER COMMISSION V. NIAGARA MOHAWK POWER CORP. 347 U.S. 239 


NO. 28.  ARGUED OCTOBER 15-16, 1953 - DECIDED MARCH 15, 1954 - 91 U.S.
APP. D.C. 395, 202 F.2D 190, AFFIRMED. 


THE FEDERAL WATER POWER ACT OF 1920 HAS NOT ABOLISHED PRIVATE
PROPRIETARY RIGHTS, EXISTING UNDER STATE LAW, TO USE WATERS OF A
NAVIGABLE STREAM FOR POWER PURPOSES; AND, IN COMPUTING THE AMORTIZATION
RESERVE OF THE FEDERAL LICENSEE IN THIS CASE, WHICH IS REQUIRED UNDER
SEC.  10(D) OF THAT ACT, AS AMENDED, THE FEDERAL POWER COMMISSION WAS
NOT JUSTIFIED IN DISALLOWING THE EXPENSES PAID OR INCURRED BY THE
LICENSEE FOR THE USE OF SUCH RIGHTS ALONG THE NIAGARA RIVER.  PP. 240
256. 

(A)  THIS COURT ACCEPTS THE COURT OF APPEALS' CONCLUSION THAT THIS
LICENSEE'S WATER RIGHTS ARE VALID UNDER THE LAW OF NEW YORK.  PP. 245
246. 

(B)  THE WATER RIGHTS CLAIMED BY THIS LICENSEE ARE USUFRUCTUARY
RIGHTS TO USE THE WATER FOR THE GENERATION OF POWER, AS DISTINGUISHED
FROM CLAIMS TO THE LEGAL OWNERSHIP OF THE RUNNING WATER ITSELF; AND,
UNDER NEW YORK LAW, THEY CONSTITUTE A FORM OF REAL ESTATE KNOWN AS
CORPOREAL HEREDITAMENTS.  PP. 246-247. 

(C)  EVEN THOUGH THIS LICENSEE'S WATER RIGHTS ARE OF A KIND THAT IS
WITHIN THE SCOPE OF THE GOVERNMENT'S DOMINANT SERVITUDE, THE GOVERNMENT
HAS NOT EXERCISED ITS POWER TO ABOLISH THEM.  PP. 248-256. 

(D)  THERE IS A DOMINANT SERVITUDE, IN FAVOR OF THE UNITED STATES,
UNDER WHICH PRIVATE PERSONS HOLD PHYSICAL PROPERTIES OBSTRUCTING
NAVIGABLE WATERS OF THE UNITED STATES AND ALL RIGHTS TO USE THE WATERS
OF THOSE STREAMS; BUT THE EXERCISE OF THAT SERVITUDE, WITHOUT MAKING
ALLOWANCES FOR PREEXISTING RIGHTS UNDER STATE LAW, REQUIRES CLEAR
AUTHORIZATION.  PP. 249-252. 

(E)  THE PLAN OF THE FEDERAL WATER POWER ACT IS ONE OF REASONABLE
REGULATION OF THE USE OF NAVIGABLE WATERS, COUPLED WITH ENCOURAGEMENT
OF THEIR DEVELOPMENT AS POWER PROJECTS BY PRIVATE PARTIES.  P. 251. 

(F)  RIPARIAN WATER RIGHTS, LIKE OTHER REAL PROPERTY RIGHTS, ARE
DETERMINED BY STATE LAW.  THE FEDERAL WATER POWER ACT MERELY IMPOSES
UPON THEIR OWNERS THE ADDITIONAL OBLIGATION OF USING THEM IN COMPLIANCE
WITH THAT ACT.  P. 252. 

(G)  NEITHER THE UNITED STATES NOR THE STATE OF NEW YORK CLAIMS SUCH
AN EXCLUSIVE RIGHT TO THE WATERS HERE IN QUESTION AS TO ELIMINATE THE
LIMITED USE WHICH THE LICENSEE HERE SEEKS TO MAKE OF THEM.  P. 256. 

(H)  THE EXPENSES IN QUESTION, WHEREBY THIS LICENSEE ACQUIRED ITS
WATER RIGHTS, ARE NOT SHOWN ON THIS RECORD TO HAVE BEEN OTHERWISE
UNREASONABLE.  P. 256. 

FEDERAL POWER COMMISSION V. NIAGARA MOHAWK POWER CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

ON RESPONDENT'S PETITION TO REVIEW AN ORDER OF THE FEDERAL POWER
COMMISSION, 9 F.P.C.  228, THE COURT OF APPEALS REMANDED THE CASE TO
THE COMMISSION WITH INSTRUCTIONS TO MODIFY ITS ORDER.  91 U.S. APP.
D.C. 395, 202 F.2D 190.  THIS COURT GRANTED CERTIORARI.  345 U.S. 955. 
AFFIRMED, P. 256. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE MOST SIGNIFICANT ISSUE RAISED BY THIS CASE IS WHETHER THE FEDERAL
WATER POWER ACT OF 1920 (FN1) HAS ABOLISHED PRIVATE PROPRIETARY RIGHTS,
EXISTING UNDER STATE LAW, TO USE WATERS OF A NAVIGABLE STREAM FOR POWER
PURPOSES.  WE AGREE WITH THE COURT OF APPEALS THAT IT HAS NOT.  WE
AGREE ALSO THAT IN COMPUTING A FEDERAL LICENSEE'S AMORTIZATION RESERVE,
REQUIRED BY SEC. 10(D) OF THAT ACT, AS AMENDED, (FN2) THE FEDERAL POWER
COMMISSION WAS NOT JUSTIFIED IN DISALLOWING THE EXPENSES PAID OR
INCURRED BY THE LICENSEE IN THIS CASE FOR THE USE OF SUCH RIGHTS. 

MARCH 2, 1921, NIAGARA FALLS POWER COMPANY, A NEW YORK CORPORATION,
PREDECESSOR IN INTEREST OF NIAGARA MOHAWK POWER CORPORATION, A NEW YORK
CORPORATION, RESPONDENT HEREIN, SECURED FROM THE FEDERAL POWER
COMMISSION THE FEDERAL LICENSE WITH WHICH WE ARE CONCERNED.  IT WAS THE
FIRST SUCH LICENSE ISSUED UNDER THE FEDERAL WATER POWER ACT OF 1920. 
ITS TERM WAS 50 YEARS.  IT AUTHORIZED THE DIVERSION OF WATER FOR POWER
PURPOSES FROM THE NIAGARA RIVER, ABOVE THE FALLS, AND THE RETURN OF IT
BELOW THE FALLS, ALL IN NEW YORK.  THE DAILY DIVERSION, IN THE
AGGREGATE, COULD NOT EXCEED 19,500 CUBIC FEET PER SECOND (C.F.S.). 
(FN3) 

OPERATION UNDER SUCH A LICENSE, TO ESTABLISH AND MAINTAIN AMORTIZATION
RESERVES OUT OF ANY SURPLUS THEREAFTER EARNED AND ACCUMULATED IN EXCESS
OF A REASONABLE RETURN UPON THE LICENSEE'S NET INVESTMENT.  SECTION 14
MAKES SUCH NET INVESTMENT, PLUS SEVERANCE DAMAGES, A PRINCIPAL MEASURE
OF THE PRICE THE GOVERNMENT IS TO PAY WHEN AND IF IT TAKES OVER ALL OR
PART OF THE PROPERTY.  (FN4)  IN 1942, THE COMMISSION EXPRESSLY HELD
THAT SEC. 14 APPLIED TO THIS LICENSEE.  (FN5) 

IN 1947, ARTICLE 11 OF THE LICENSE WAS AMENDED SO AS TO SPECIFY A 6%
RATE OF RETURN AND TO REQUIRE 50% OF THE LICENSEE'S SURPLUS EARNINGS TO
BE PAID INTO ITS AMORTIZATION RESERVES.  AS SO AMENDED, THE ARTICLE
READ: 

"AFTER THE FIRST TWENTY (20) YEARS OF OPERATION OF THE PROJECT UNDER
THIS LICENSE, NAMELY AFTER MARCH 1, 1941, SIX (6) PER CENT PER ANNUM
SHALL BE THE SPECIFIED RATE OF RETURN ON THE NET INVESTMENT IN THE
PROJECT FOR DETERMINING SURPLUS EARNINGS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 10(D) OF THE ACT FOR THE ESTABLISHMENT AND
MAINTENANCE OF AMORTIZATION RESERVES TO BE HELD UNTIL TERMINATION OF
THE LICENSE, OR IN THE DISCRETION OF THE COMMISSION, TO BE APPLIED FROM
TIME TO TIME IN REDUCTION OF THE NET INVESTMENT IN THE PROJECT, AND ONE
HALF OF ALL SURPLUS EARNINGS IN EXCESS OF SIX (6) PER CENT PER ANNUM
RECEIVED IN ANY CALENDAR YEAR SHALL BE PAID INTO AND HELD IN SUCH
AMORTIZATION RESERVES."  (FN6) 

IN 1948, THE COMMISSION BEGAN THIS PROCEEDING TO DETERMINE THE
LICENSEE'S AMORTIZATION RESERVE LIABILITY.  IT WAS THE COMMISSION'S
FIRST SUCH EFFORT UNDER SEC. 10(D).  IN 1949, PURSUANT TO A REVISED
STAFF REPORT, THE COMMISSION DIRECTED THE HOLDER OF THIS LICENSE TO
SHOW CAUSE WHY ONE-HALF OF ITS SURPLUS EARNINGS FROM MARCH 2, 1941,
THROUGH DECEMBER 31, 1946, IN THE AMOUNT OF $994,521.33, SHOULD NOT BE
SET ASIDE IN AN AMORTIZATION RESERVE, AND WHY A LIKE PROPORTION OF ITS
SUBSEQUENT SURPLUS EARNINGS SHOULD NOT BE SET ASIDE ANNUALLY UPON A
COMPARABLE BASIS.  IN 1950, THE COMMISSION'S PRESIDING EXAMINER
RECOMMENDED THAT THE LICENSEE'S INITIAL RESERVE BE $914,432.04, AND THE
COMMISSION APPROVED THAT FIGURE IN PREFERENCE TO $515,432.04 PROPOSED
BY THE LICENSEE.  ONE COMMISSIONER FILED A CONCURRING STATEMENT AND ONE
DISSENTED.  9 F.P.C. 228.  HOWEVER, THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT, ONE JUDGE DISSENTING, UPHELD THE LICENSEE
AND REMANDED THE CASE TO THE COMMISSION WITH INSTRUCTIONS TO MODIFY ITS
ORDER ACCORDINGLY.  91 U.S. APP. D.C. 395, 202 F.2D 190.  (FN7)  THE
DECISION TURNED PRIMARILY UPON THE COURT'S CONCLUSION THAT NEITHER THE
FEDERAL WATER POWER ACT NOR THE ISSUANCE OF A LICENSE THEREUNDER HAD
ABOLISHED THE LICENSEE'S PRIVATE PROPRIETARY RIGHTS TO USE THE WATERS
OF NIAGARA RIVER FOR POWER PURPOSES.  THAT ISSUE WAS INESCAPABLE
BECAUSE THE COMMISSION, IN COMPUTING THE LICENSEE'S REQUIRED
AMORTIZATION RESERVE, HAD FOUND THAT CERTAIN ANNUAL PAYMENTS AND
DISCOUNTS MADE BY THE LICENSEE FOR ITS USE OF PRIVATE WATER RIGHTS,
EXISTING UNDER STATE LAW, ALONG THE NIAGARA RIVER, WERE NOT ALLOWABLE
EXPENSES FOR THE REASON THAT THE COMMISSION CONSIDERED THOSE RIGHTS NO
LONGER EXISTENT.  THE COURT OF APPEALS HELD PRECISELY THE CONTRARY AND
WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANT BEARING OF THE DECISION
UPON THE FEDERAL WATER POWER ACT.  345 U.S. 955. 

THE IMMEDIATE ISSUE THUS PRESENTED IS WHETHER THE LICENSEE'S
AMORTIZATION RESERVE UNDER SEC. 10(D), FOR THE PERIOD FROM MARCH 2,
1941, THROUGH DECEMBER 31, 1946, SHOULD BE $914,432.04 OR $515,432.04. 
(FN8)  THAT DIFFERENCE OF $399,000 IS ONE-HALF OF THE $798,000 WHICH
THE COMMISSION BELIEVES SHOULD BE INCLUDED IN THE SURPLUS EARNINGS OF
THE LICENSEE FOR THE PERIOD.  IT CONSISTS OF:

1.  $577,500 PAID BY THE LICENSEE, AT THE RATE OF $99,000 A YEAR, FOR
ITS USE, FOR POWER PURPOSES, OF 730 C.F.S. OF THE "INTERNATIONAL PAPER
WATER RIGHTS," AND: 

2.  $220,500 ALLOWED BY THE LICENSEE AS A DISCOUNT, AT THE RATE OF
$37,800 A YEAR, ON CERTAIN SALES OF ELECTRIC POWER IN CONSIDERATION OF
PERMISSION TO USE, FOR POWER PURPOSES, 262 C.F.S. OF THE "PETTEBONE
CATARACT WATER RIGHTS." 

THE COURT OF APPEALS HELD THAT ALTHOUGH RESPONDENT'S PREDECESSOR, IN
1921, HAD RECEIVED A FEDERAL LICENSE FOR THIS PROJECT, IT NEVERTHELESS
WAS JUSTIFIED IN CONTINUING TO MEET THE FINANCIAL OBLIGATIONS WHICH IT
HAD ASSUMED IN RETURN FOR PERMISSION TO USE WATER RIGHTS ORIGINALLY
GRANTED AND STILL EXISTING UNDER THE LAW OF NEW YORK.  THAT COURT,
ACCORDINGLY, APPROVED EACH OF THE FOREGOING ITEMS OF EXPENSE AND FIXED
THE LICENSEE'S INITIAL AMORTIZATION RESERVE AT $515,432.04. 

IT WAS NOT QUESTIONED IN THE COURT OF APPEALS OR HERE THAT THE
LICENSEE ORIGINALLY HAD ACQUIRED, IN RETURN FOR THE ABOVE-STATED
PAYMENTS AND DISCOUNTS, SOME KIND OR DEGREE OF PRIVATE PROPRIETARY
RIGHTS UNDER THE LAW OF NEW YORK TO USE WATER FROM THE NIAGARA RIVER
FOR POWER PURPOSES.  ACCORDINGLY, WE DO NOT CONSIDER IT NECESSARY TO
REVIEW HERE THE INTRICATE TRANSACTIONS WHICH RESULTED IN THE ABOVE
DESCRIBED PAYMENTS AND DISCOUNTS.  WE ACCEPT THE CONCLUSION OF THE
COURT OF APPEALS "THAT THE INTERNATIONAL PAPER AND PETTEBONE-CATARACT
WATER RIGHTS ARE VALID UNDER THE LAW OF NEW YORK."  91 U.S. APP. D.C.,
AT 406, 202 F.2D, AT 202.  (FN9)  FOR FURTHER RECOGNITION OF THESE
WATER RIGHTS UNDER STATE LAW, SEE WATER POWER & CONTROL COMMISSION V.
NIAGARA FALLS POWER CO., 262 APP. DIV. 460, 30 N.Y.S.2D 371, AFF'D, 289
N.Y. 353, 45 N.E.2D 907; NIAGARA FALLS POWER CO. V. DURYEA, 185 MISC.
696, 57 N.Y.S.2D 777. 

NEITHER IS IT NECESSARY FOR US TO DISCUSS THE LICENSEE'S EXPENSES IN
1947 OR THEREAFTER.  THEY MUST BE TREATED IN THE SAME WAY AS THOSE
ABOVE MENTIONED, EXCEPT TO NOTE THAT THE DISCOUNTS ALLOWED IN RETURN
FOR THE PETTEBONE-CATARACT WATER RIGHTS CEASED WITH THE LICENSEE'S
PURCHASE OF THOSE RIGHTS IN 1947.  SEE 91 U.S. APP. D.C., AT 400-401,
202 F.2D, AT 196. 

WE ARE NOT REQUIRED TO DETERMINE THE NATURE OF THE RIGHTS CLAIMED BY
RESPONDENT EXCEPT TO RECOGNIZE THAT THEY ARE USUFRUCTUARY RIGHTS TO USE
THE WATER FOR THE GENERATION OF POWER, AS DISTINGUISHED FROM CLAIMS TO
THE LEGAL OWNERSHIP OF THE RUNNING WATER ITSELF.  THEY ARE RIGHTS TO
USE THE FORCE OF THE FALL OF WATER, COUPLED WITH AN OBLIGATION TO
RETURN THE WATER TO THE RIVER UNDER SPECIFIED CONDITIONS.  (FN10)  THE
RIGHTS UNDER CONSIDERATION ORIGINALLY WERE ATTACHED TO RIPARIAN LANDS
ABOVE AND BELOW THE FALLS.  HOWEVER, THEY LONG HAVE BEEN SEPARATED FROM
SUCH LANDS AND, THUS SEPARATED, THEY HAVE BEEN TRANSFERRED OR LEASED TO
RESPONDENT.  UNDER THE LAW OF NEW YORK, THEY CONSTITUTE A FORM OF REAL
ESTATE KNOWN AS CORPOREAL HEREDITAMENTS.  (FN11)  THE COMMISSION DOES
NOT NOW CONTEST THE PURCHASE PRICES WHICH HAVE BEEN PAID FOR ANY OF
THESE RIGHTS.  THE COMMISSION'S PRESENT OBJECTION IS LIMITED TO
RESPONDENT'S DEDUCTION, IN THE COMPUTATION OF ITS AMORTIZATION
RESERVES, OF THE ANNUAL PAYMENTS AND DISCOUNTS IT HAS MADE AND WHICH IT
PROPOSES TO MAKE FOR THE USE OF SUCH RIGHTS.  THE COMMISSION CONTENDS
(1) THAT CONGRESS NOT ONLY MAY CONSTITUTIONALLY ABOLISH SUCH LOCAL
WATER RIGHTS WITHOUT COMPENSATION BUT THAT IT ALREADY HAS DONE SO, AND
(2) THAT, ALTHOUGH THE LICENSEE'S CONTESTED EXPENDITURES MAY BE LAWFUL,
OR EVEN OBLIGATORY, BETWEEN THE PARTIES, THEY MUST BE DISALLOWED IN
COMPUTING THE LICENSEE'S AMORTIZATION RESERVE UNDER SEC. 10(D). 

WE CONCLUDE, AS DID THE COURT OF APPEALS, THAT, EVEN THOUGH
RESPONDENT'S WATER RIGHTS ARE OF A KIND THAT IS WITHIN THE SCOPE OF THE
GOVERNMENT'S DOMINANT SERVITUDE, THE GOVERNMENT HAS NOT EXERCISED ITS
POWER TO ABOLISH THEM.  (FN12) 

WHILE WE RECOGNIZE THE DOMINANT SERVITUDE, IN FAVOR OF THE UNITED
STATES, UNDER WHICH PRIVATE PERSONS HOLD PHYSICAL PROPERTIES
OBSTRUCTING NAVIGABLE WATERS OF THE UNITED STATES AND ALL RIGHTS TO USE
THE WATERS OF THOSE STREAMS, (FN13) WE RECOGNIZE ALSO THAT THE EXERCISE
OF THAT SERVITUDE, WITHOUT MAKING ALLOWANCES FOR PREEXISTING RIGHTS
UNDER STATE LAW, REQUIRES CLEAR AUTHORIZATION.  A CLASSIC EXAMPLE OF
SUCH A CLEAR AUTHORIZATION APPEARS IN UNITED STATES V. CHANDLER-DUNBAR
CO., 229 U.S. 53.  THE ACT OF MARCH 3, 1909, THERE AUTHORIZED THE
EXERCISE OF THE DOMINANT RIGHT OF THE UNITED STATES TO TAKE ALL OF A
NAVIGABLE RIVER'S FLOW FOR PURPOSES OF INTERSTATE COMMERCE.  IT DID SO
IN EXPLICIT TERMS.  IT SAID: 

"SEC. 11.  ...  THE OWNERSHIP IN FEE SIMPLE ABSOLUTE BY THE UNITED
STATES OF ALL LANDS AND PROPERTY OF EVERY KIND AND DESCRIPTION NORTH OF
THE PRESENT SAINT MARYS FALLS SHIP CANAL THROUGHOUT ITS ENTIRE LENGTH
AND LYING BETWEEN SAID SHIP CANAL AND THE INTERNATIONAL BOUNDARY LINE
AT SAULT SAINTE MARIE, IN THE STATE OF MICHIGAN, IS NECESSARY FOR THE
PURPOSES OF NAVIGATION OF SAID WATERS AND THE WATERS CONNECTED
THEREWITH. 

"THE SECRETARY OF WAR IS HEREBY DIRECTED TO TAKE PROCEEDINGS
IMMEDIATELY FOR THE ACQUISITION BY CONDEMNATION OR OTHERWISE OF ALL OF
SAID LANDS AND PROPERTY OF EVERY KIND AND DESCRIPTION, IN FEE SIMPLE
ABSOLUTE  ...  . 

     *         *  *         *         * 

"EVERY PERMIT, LICENSE, OR AUTHORITY OF EVERY KIND, NATURE, AND
DESCRIPTION HERETOFORE ISSUED OR GRANTED BY THE UNITED STATES, OR ANY
OFFICIAL THEREOF, TO THE CHANDLER-DUNBAR WATER POWER COMPANY ...  SHALL
CEASE AND DETERMINE AND BECOME NULL AND VOID ON JANUARY FIRST, NINETEEN
HUNDRED AND ELEVEN  ...  ."  35 STAT. 820, 821. 

IN THAT CASE THE GOVERNMENT TOOK THE ENTIRE FLOW OF THE STREAM
EXCLUSIVELY FOR PURPOSES OF INTERSTATE COMMERCE.  THE COURT ACCORDINGLY
RECOGNIZED THE GOVERNMENT'S ABSOLUTE RIGHT, WITHIN THE BED OF THE
STREAM, TO USE ALL OF THE WATERS FLOWING IN THE STREAM, FOR PURPOSES OF
INTERSTATE COMMERCE, WITHOUT COMPENSATING ANYONE FOR THE USE OF THOSE
WATERS.  (FN14) 

THAT DECISION IS NOT APPLICABLE HERE.  THE ISSUE HERE IS WHETHER THE
MUCH MORE GENERAL AND REGULATORY LANGUAGE OF THE FEDERAL WATER POWER
ACT SHALL BE GIVEN THE SAME DRASTIC EFFECT AS WAS REQUIRED THERE BY THE
LANGUAGE OF THE ACT OF MARCH 3, 1909.  WE FIND NOTHING IN THE FEDERAL
WATER POWER ACT JUSTIFYING SUCH AN INTERPRETATION.  NEITHER IT, NOR THE
LICENSE ISSUED UNDER IT, EXPRESSLY ABOLISHES ANY EXISTING PROPRIETARY
RIGHTS TO USE WATERS OF THE NIAGARA RIVER.  UNLIKE THE STATUTE IN THE
CHANDLER-DUNBAR CASE, THE FEDERAL WATER POWER ACT MENTIONS NO SPECIFIC
PROPERTIES.  IT MAKES NO EXPRESS ASSERTION OF THE PARAMOUNT RIGHT OF
THE GOVERNMENT TO USE THE FLOW OF THE NIAGARA OR OF ANY OTHER NAVIGABLE
STREAM TO THE EXCLUSION OF EXISTING USERS.  ON THE CONTRARY, THE PLAN
OF THE ACT IS ONE OF REASONABLE REGULATION OF THE USE OF NAVIGABLE
WATERS, COUPLED WITH ENCOURAGEMENT OF THEIR DEVELOPMENT AS POWER
PROJECTS BY PRIVATE PARTIES.  (FN15) 

THE ACT: 

"DISCLOSES BOTH A VIGOROUS DETERMINATION OF CONGRESS TO MAKE PROGRESS
WITH THE DEVELOPMENT OF THE LONG IDLE WATER POWER RESOURCES OF THE
NATION AND A DETERMINATION TO AVOID UNCONSTITUTIONAL INVASION OF THE
JURISDICTION OF THE STATES  ...  . 

"THE ACT LEAVES TO THE STATES THEIR TRADITIONAL JURISDICTION SUBJECT
TO THE ADMITTEDLY SUPERIOR RIGHT OF THE FEDERAL GOVERNMENT, THROUGH
CONGRESS, TO REGULATE INTERSTATE AND FOREIGN COMMERCE  ... ."  FIRST
IOWA COOPERATIVE V. FEDERAL POWER COMMISSION, 328 U.S. 152, 171. 

THE ACT TREATS USUFRUCTUARY WATER RIGHTS LIKE OTHER PROPERTY RIGHTS. 
WHILE LEAVING THE WAY OPEN FOR THE EXERCISE OF THE FEDERAL SERVITUDE
AND OF FEDERAL RIGHTS OF PURCHASE OR CONDEMNATION, THERE IS NO PURPOSE
EXPRESSED TO SEIZE, ABOLISH OR ELIMINATE WATER RIGHTS WITHOUT
COMPENSATION MERELY BY FORCE OF THE ACT ITSELF.  (FN16)    THE
REFERENCES IN THE ACT TO PREEXISTING WATER RIGHTS CARRY A NATURAL
IMPLICATION THAT THOSE RIGHTS ARE TO SURVIVE, AT LEAST UNTIL TAKEN OVER
BY PURCHASE OR OTHERWISE.  (FN17)  RIPARIAN WATER RIGHTS, LIKE OTHER
REAL PROPERTY RIGHTS, ARE DETERMINED BY STATE LAW.  TITLE TO THEM IS
ACQUIRED IN CONFORMITY WITH THAT LAW.  THE FEDERAL WATER POWER ACT
MERELY IMPOSES UPON THEIR OWNERS THE ADDITIONAL OBLIGATION OF USING
THEM IN COMPLIANCE WITH THAT ACT. 

THE LEGISLATIVE HISTORY OF THE ACT DISCLOSES NO SUBSTANTIAL SUPPORT
FOR THE DRASTIC POLICY WHICH THE COMMISSION SEEKS TO READ INTO IT.  TO
CONVERT THIS ACT FROM A REGULATORY ACT TO ONE AUTOMATICALLY ABOLISHING
PREEXISTING WATER RIGHTS ON A NATIONWIDE SCALE CALLS FOR A CONVINCING
EXPLANATION OF THAT PURPOSE.  WE FIND NONE.  IN FACT, THE LEGISLATIVE
HISTORY POINTS THE OTHER WAY.  REPRESENTATIVE WILLIAM L. LA FOLLETTE,
OF WASHINGTON, A MEMBER OF THE HOUSE SPECIAL COMMITTEE ON WATER POWER
WHICH REPORTED SUBSTANTIALLY THE SAME BILL AS THAT WHICH IN 1920 BECAME
THE FEDERAL WATER POWER ACT, SAID OF IT IN 1918: 

"THIS BILL IS NOT BASED ON EITHER THE GOVERNMENT'S OWNERSHIP OR ITS
SOVEREIGN AUTHORITY, BUT ON THE HYPOTHESIS THAT WE AS REPRESENTATIVES
OF THE STATES HAVE AUTHORITY TO ACT FOR THE STATES IN MATTERS OF THIS
CHARACTER AND PASS LAWS FOR THE GENERAL GOOD, BY THE ESTABLISHMENT OF A
LIMITED TRUSTEESHIP OR COMMISSION COMPOSED OF OFFICIALS OF THE
GOVERNMENT, TO CARRY OUT AND ADMINISTER THIS LAW IN SUCH A WAY AS NOT
TO INFRINGE ANY OF THE RIGHTS OF THE STATES NOR TO IMPEDE OR RESTRICT
NAVIGATION, BUT RATHER TO BENEFIT IT  ...  .  UNDER THIS BILL WE ONLY
ALLOW THE COMMISSION A SUPERVISORY POWER OVER THOSE FUNCTIONS ENTIRELY
WITHIN THE STATE'S JURISDICTION FOR THE PERIOD COVERED BY ANY LICENSE,
THE STATE HAVING EXERCISED ITS RIGHTS IN ADVANCE OF ISSUE."  56 CONG.
REC. 9110. 

SHORTLY THEREAFTER HE ADDED: 

"IF WE PUT IN THIS LANGUAGE (OF SEC. 9(B)), WHICH IS PRACTICALLY
TAKEN FROM THAT SUPREME COURT DECISION (UNITED STATES V. CRESS, 243
U.S. 316), AS TO THE PROPERTY RIGHTS OF THE STATES AS TO THE BED AND
THE BANKS AND TO THE DIVERSION OF THE WATER, THEN IT IS SURE THAT WE
HAVE NOT INFRINGED ANY OF THE RIGHTS OF THE STATES IN THAT RESPECT, OR
ANY OF THEIR RULES OF PROPERTY  ...  .  WE ARE EARNESTLY TRYING NOT TO
INFRINGE THE RIGHTS OF THE STATES."  ID., AT 9810.  (FN18) 

IN 1930, THIS COURT PASSED UPON THE BASIC QUESTION NOW BEFORE US WHEN
IT CAME HERE IN A DIFFERENT CONNECTION.  IN FORD & SON V. LITTLE FALLS
CO., 280 U.S. 369, MR. JUSTICE STONE, WRITING FOR A UNANIMOUS COURT,
HELD THAT A RIPARIAN OWNER OF A RIGHT TO USE WATER FOR POWER PURPOSES
IN THE NAVIGABLE MOHAWK RIVER, IN NEW YORK STATE, WAS ENTITLED TO AN
INJUNCTION AGAINST THE UNCOMPENSATED DESTRUCTION OF THAT RIGHT BY A
SUBSEQUENT LICENSEE UNDER THE FEDERAL WATER POWER ACT.  THE NEW YORK
SUPREME COURT HAD GRANTED SUCH AN INJUNCTION AND AWARDED DAMAGES.  THIS
COURT AFFIRMED THAT DECISION, ALTHOUGH THE FEDERAL LICENSE THEN BEFORE
THE COURT HAD AUTHORIZED THE LICENSEE TO RAISE THE NAVIGABLE WATERS OF
THE HUDSON RIVER TO SUCH AN EXTENT THAT THEY WOULD DESTROY THE VALUE OF
THE RIPARIAN OWNER'S RIGHT, UNDER STATE LAW, TO USE THE FALL OF
TRIBUTARY WATERS OF THE MOHAWK FOR POWER PURPOSES.  IT WAS THUS HELD
THAT THE FEDERAL WATER POWER ACT HAD NOT ABOLISHED THE COMPLAINANT'S
PRIVATE PROPRIETARY WATER RIGHTS, EXISTING UNDER NEW YORK LAW, TO USE
NAVIGABLE WATERS FOR POWER PURPOSES.  (FN19) 

"EVEN THOUGH THE RIGHTS WHICH THE RESPONDENTS (THE RIPARIAN OWNERS)
HERE ASSERT BE DEEMED SUBORDINATE TO THE POWER OF THE NATIONAL
GOVERNMENT TO CONTROL NAVIGATION, THE PRESENT LEGISLATION DOES NOT
PURPORT TO AUTHORIZE A LICENSEE OF THE COMMISSION TO IMPAIR SUCH RIGHTS
RECOGNIZED BY STATE LAW WITHOUT COMPENSATION."  ID., AT 377. 

AFTER QUOTING FROM SECS. 10(C) (LIABILITY FOR DAMAGES CAUSED BY THE
LICENSED PROJECT), 27 (SAVING CLAUSE AS TO PROPRIETARY RIGHTS UNDER
STATE LAW), 21 (CONDEMNATION RIGHTS) AND 6 (LICENSEE'S ACCEPTANCE OF
THE CONDITIONS OF THE ACT), THE COURT ADDED: 

"WHILE THESE SECTIONS ARE CONSISTENT WITH THE RECOGNITION THAT STATE
LAWS AFFECTING THE DISTRIBUTION OR USE OF WATER IN NAVIGABLE WATERS AND
THE RIGHTS DERIVED FROM THOSE LAWS MAY BE SUBORDINATE TO THE POWER OF
THE NATIONAL GOVERNMENT TO REGULATE COMMERCE UPON THEM, THEY
NEVERTHELESS SO RESTRICT THE OPERATION OF THE ENTIRE ACT THAT THE
POWERS CONFERRED BY IT ON THE COMMISSION DO NOT EXTEND TO THE
IMPAIRMENT OF THE OPERATION OF THOSE LAWS OR TO THE EXTINGUISHMENT OF
RIGHTS ACQUIRED UNDER THEM WITHOUT REMUNERATION.  WE THINK THE INTEREST
HERE ASSERTED BY THE RESPONDENTS, SO FAR AS THE LAWS OF THE STATE ARE
CONCERNED, IS A VESTED RIGHT ACQUIRED UNDER THOSE LAWS AND SO IS ONE
EXPRESSLY SAVED BY SEC. 27 FROM DESTRUCTION OR APPROPRIATION BY
LICENSEES WITHOUT COMPENSATION, AND THAT IT IS ONE WHICH PETITIONER
(THE LICENSEE), BY ACCEPTANCE OF THE LICENSE UNDER THE PROVISIONS OF
SEC. 6, MUST BE DEEMED TO HAVE AGREED TO RECOGNIZE AND PROTECT."  ID.,
AT 378-379. 

PARALLEL REASONING HAS BEEN APPLIED IN A CASE INVOLVING A CONFLICT
BETWEEN A LICENSEE AND THE HOLDER OF STATE-RECOGNIZED RIGHTS TO USE
WATER FROM A NAVIGABLE STREAM FOR IRRIGATION PURPOSES.  UNITED STATES
V. GERLACH LIVE STOCK CO., 339 U.S. 725, 734.  SEE ALSO, AS TO STATE
CREATED WATER RIGHTS FOR POWER PURPOSES, GRAND RIVER DAM AUTHORITY V.
GRAND-HYDRO, 335 U.S. 359, 372; PIKE RAPIDS POWER CO. V. MINNEAPOLIS,
ST. P.&S.S.M.R. CO., 99 F.2D 902; UNITED STATES V. CENTRAL
STOCKHOLDERS' CORP., 52 F.2D 322; RANK V. KRUG, 90 F. SUPP. 773, 793;
GREAT NORTHERN R. CO. V. WASHINGTON ELECTRIC CO., 197 WASH. 627, 86
P.2D 208. 

IN FIRST IOWA COOPERATIVE V. FEDERAL POWER COMMISSION, 328 U.S. 152,
AT 175-176, SEC.  27 OF THE ACT WAS DISCUSSED IN RELATION TO CONDITIONS
CONTROLLING THE APPROVAL OF PROJECTS.  THE LANGUAGE THERE USED IS
APPLICABLE TO PROPRIETARY WATER RIGHTS FOR POWER PURPOSES AS WELL AS
THOSE FOR OTHER PROPRIETARY USES.  TO ANY EXTENT THAT STATEMENTS IN
ALABAMA POWER CO. V. GULF POWER CO., 283 F. 606, CITED IN THE FIRST
IOWA CASE, INDICATE A DIFFERENT INTERPRETATION, THEY ARE NOT
CONTROLLING. 

RESPONDENT'S PRIVATE PROPERTY RIGHTS ARE ROOTED IN STATE LAW, SUBJECT
TO THE PARAMOUNT RIGHTS OF THE STATE AND NATION.  IN THE INSTANT CASE,
BOTH THE STATE AND THE NATION HAVE MADE LIMITED ASSERTIONS OF THEIR
SUPERIOR RIGHTS.  NEW YORK HAS DONE SO THROUGH ITS RENTAL CHARGES AND
THE NATION THROUGH ITS LICENSE.  NEITHER, HOWEVER, HAS LAID CLAIM TO
SUCH AN EXCLUSIVE RIGHT TO THE WATERS AS ELIMINATES THE LIMITED USE
WHICH RESPONDENT HERE SEEKS TO MAKE OF THEM. 

THE FINDINGS OF THE COMMISSION AND THE ACTION OF THE COURT OF APPEALS
DISCLOSE NO SUFFICIENT ADDITIONAL CIRCUMSTANCES DEMONSTRATING THE
UNREASONABLENESS OF THE EXPENSES IN QUESTION.  (FN20) 

THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS AFFIRMED. 

FN1  THE FEDERAL WATER POWER ACT OF 1920, 41 STAT. 1063, AS AMENDED,
IS NOW PART I OF THE FEDERAL POWER ACT, 49 STAT. 838, 16 U.S.C. SECS.
791A-825R. 

FN2  "SEC.  10.  ALL LICENSES ISSUED UNDER THIS PART SHALL BE ON THE
FOLLOWING CONDITIONS: 

     * *         *         *         * 

"(D)  THAT AFTER THE FIRST TWENTY YEARS OF OPERATION, OUT OF SURPLUS
EARNED THEREAFTER, IF ANY, ACCUMULATED IN EXCESS OF A SPECIFIED
REASONABLE RATE OF RETURN UPON THE NET INVESTMENT OF A LICENSEE IN ANY
PROJECT OR PROJECTS UNDER LICENSE, THE LICENSEE SHALL ESTABLISH AND
MAINTAIN AMORTIZATION RESERVES, WHICH RESERVES SHALL, IN THE DISCRETION
OF THE COMMISSION, BE HELD UNTIL THE TERMINATION OF THE LICENSE OR BE
APPLIED FROM TIME TO TIME IN REDUCTION OF THE NET INVESTMENT.  SUCH
SPECIFIED RATE OF RETURN AND THE PROPORTION OF SUCH SURPLUS EARNINGS TO
BE PAID INTO AND HELD IN SUCH RESERVES SHALL BE SET FORTH IN THE
LICENSE  ...  ."  49 STAT. 842, 843, 16 U.S.C. SEC. 803(D). 

FN3  THIS LIMIT SOON WAS INCREASED TO 19,725 C.F.S., 6 F.P.C. 184,
185, AND LATER TO 20,000 C.F.S., SEE 9 F.P.C. 228, 244, N. 28.  THE
TREATY BETWEEN THE UNITED STATES AND GREAT BRITAIN RELATING TO BOUNDARY
WATERS BETWEEN THE UNITED STATES AND CANADA, PROCLAIMED MAY 13, 1910,
LIMITED THE DIVERSION FROM THE UNITED STATES SIDE TO 20,000 AND FROM
THE CANADIAN SIDE TO 36,000 C.F.S.  36 STAT. 2448, 2450.  AS TO
ADDITIONAL EMERGENCY AND TEMPORARY DIVERSIONS, SEE 55 STAT. 1276, 1380;
1 U.S. TREATIES AND OTHER INTERNATIONAL AGREEMENTS 694. 

FN4  49 STAT. 844-845, 16 U.S.C. SEC. 807.  SEE ALSO, SEC. 16 AS TO
COMPENSATION TO BE PAID FOR TEMPORARY USE OF THE PROPERTY BY THE
GOVERNMENT, 41 STAT. 1072, 16 U.S.C. SEC.  809; SEC. 20 AS TO RATE
FIXING, 41 STAT. 1073-1074, 16 U.S.C. SEC. 813; AND SEC. 26 AS TO A
PURCHASE BY THE GOVERNMENT AT A JUDICIAL SALE, 41 STAT. 1076, 16 U.S.C.
SEC. 820.  "NET INVESTMENT" IS DEFINED IN SEC. 3 AS FOLLOWS: 

"(13)  'NET INVESTMENT' IN A PROJECT MEANS THE ACTUAL LEGITIMATE
ORIGINAL COST THEREOF AS DEFINED AND INTERPRETED IN THE 'CLASSIFICATION
OF INVESTMENT IN ROAD AND EQUIPMENT OF STEAM ROADS, ISSUE OF 1914,
INTERSTATE COMMERCE COMMISSION,' PLUS SIMILAR COSTS OF ADDITIONS
THERETO AND BETTERMENTS THEREOF, MINUS THE SUM OF THE FOLLOWING ITEMS
PROPERLY ALLOCATED THERETO, IF AND TO THE EXTENT THAT SUCH ITEMS HAVE
BEEN ACCUMULATED DURING THE PERIOD OF THE LICENSE FROM EARNINGS IN
EXCESS OF A FAIR RETURN ON SUCH INVESTMENT:  (A) UNAPPROPRIATED
SURPLUS, (B) AGGREGATE CREDIT BALANCES OF CURRENT DEPRECIATION
ACCOUNTS, AND (C) AGGREGATE APPROPRIATIONS OF SURPLUS OR INCOME HELD IN
AMORTIZATION, SINKING FUND, OR SIMILAR RESERVES, OR EXPENDED FOR
ADDITIONS OR BETTERMENTS OR USED FOR THE PURPOSES FOR WHICH SUCH
RESERVES WERE CREATED  ...  ."  49 STAT. 839, 16 U.S.C. SEC. 796(13). 

IN THE INSTANT CASE THE COMMISSION EXPLAINS THAT: 

"SECTION 10(D) IS PART OF A LARGER PATTERN OF FAIRNESS SET UP BY THE
ACT TO INDUCE WATER-POWER DEVELOPMENT.  LICENSEES ARE ASSURED A 'FAIR
RETURN,' BUT THE PUBLIC IS SAFEGUARDED AGAINST PROFITEERING BY A
LICENSEE THROUGH PROFITS BEYOND A FAIR RETURN.  AT THE END OF THE
LICENSE PERIOD AND UPON 'RECAPTURE' BY THE FEDERAL GOVERNMENT, EARNINGS
THROUGHOUT THE LICENSE PERIOD ARE TO BE TESTED AGAINST A FAIR RETURN
STANDARD SET UP IN SECTION 3(13)."  9 F.P.C., AT 248. 

FN5  THIS RESULTED FROM THE DECISION THAT THE "FAIR VALUE" PROVISIONS
OF SEC. 23(A), 49 STAT. 846, 16 U.S.C. SEC. 816, APPLIED TO LICENSES TO
USE WATER RIGHTS PREVIOUSLY HELD UNDER PERMITS FROM THE FEDERAL
GOVERNMENT, WHEREAS THIS LICENSEE'S PRIOR WATER RIGHTS, IF ANY, ARISE
UNDER THE LAW OF NEW YORK.  IN RE NIAGARA FALLS POWER CO., 3 F.P.C.
206, AFF'D BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN NIAGARA
FALLS POWER CO. V. FEDERAL POWER COMMISSION, 137 F.2D 787. 

FN6  A PROCEEDING SEEKING THE COMMISSION'S APPROVAL OF A FURTHER
AMENDMENT TO ARTICLE 11 WAS CONSOLIDATED WITH THE SHOW-CAUSE
PROCEEDINGS IN THE INSTANT CASE.  IN RESPONSE, THE COMMISSION, IN 1950,
ORDERED THAT ARTICLE AMENDED TO READ: 

"AFTER THE FIRST 20 YEARS OF OPERATION OF THE PROJECT UNDER THIS
LICENSE, 6 PERCENT PER ANNUM SHALL BE THE SPECIFIED RATE OF RETURN ON
THE NET INVESTMENT IN THE PROJECT FOR DETERMINING SURPLUS EARNINGS AND
FOR THE ESTABLISHMENT AND MAINTENANCE OF AMORTIZATION RESERVES,
PURSUANT TO SECTION 10(D) OF THE ACT; ONE-HALF OF ALL EARNINGS IN
EXCESS OF 6 PERCENT PER ANNUM SHALL BE PAID INTO SUCH AMORTIZATION
RESERVES AND SUCH AMORTIZATION RESERVES SHALL BE ESTABLISHED,
MAINTAINED AND DISPOSED OF IN ACCORDANCE WITH THE TERMS OF THE ACT AND
SUCH RULES, REGULATIONS AND ORDERS OF THE COMMISSION AS MAY BE ADOPTED
PURSUANT THERETO."  9 F.P.C., AT 259. 

UNDER THE ABOVE AMENDMENT, THE METHOD OF SETTING ASIDE THE
AMORTIZATION RESERVES MAY BE PRESCRIBED BY THE COMMISSION.  9 F.P.C.,
AT 232-233, 239. 

FN7  PER CURIAM.  KIMBROUGH STONE, CIRCUIT JUDGE, RETIRED, FROM THE
EIGHTH CIRCUIT, SITTING BY DESIGNATION; WILBUR K. MILLER, CIRCUIT
JUDGE.  DISSENTING, BAZELON, CIRCUIT JUDGE. 

FN8  FOR COMPUTATIONS, SEE APPENDIX, INFRA, P. 257. 

FN9  RESPONDENT'S CORPORATE HISTORY AND THE DEVOLUTION OF THE TITLE
TO THE INTERNATIONAL PAPER AND THE PETTEBONE-CATARACT WATER RIGHTS ARE
DESCRIBED BY THE COURT OF APPEALS IN 91 U.S. APP. D.C. 395, AT 398-402,
402-407, 202 F.2D 190, AT 194-197, 198-202.  SEE ALSO, NIAGARA FALLS
POWER CO. V. FEDERAL POWER COMMISSION, 137 F.2D 787.  FOR A DETAILED
EXAMINATION OF THE FACTS AND ISSUES OF THE INSTANT CASE, SEE SCHWARTZ,
NIAGARA MOHAWK V. FPC:  HAVE PRIVATE WATER RIGHTS BEEN DESTROYED BY THE
FEDERAL POWER ACT?, 102 U. OF PA. L. REV. 31. 

FN10  "  ...  WHILE THE RIGHT TO ITS USE, AS IT FLOWS ALONG IN A
BODY, MAY BECOME A PROPERTY RIGHT, YET THE WATER ITSELF, THE CORPUS OF
THE STREAM, NEVER BECOMES OR, IN THE NATURE OF THINGS, CAN BECOME, THE
SUBJECT OF FIXED APPROPRIATION OR EXCLUSIVE DOMINION, IN THE SENSE THAT
PROPERTY IN THE WATER ITSELF CAN BE ACQUIRED, OR BECOME THE SUBJECT OF
TRANSMISSION FROM ONE TO ANOTHER.  NEITHER SOVEREIGN NOR SUBJECT CAN
ACQUIRE ANYTHING MORE THAN A MERE USUFRUCTUARY RIGHT THEREIN, AND IN
THIS CASE THE STATE NEVER ACQUIRED, OR COULD ACQUIRE, THE OWNERSHIP OF
THE AGGREGATED DROPS THAT COMPRISED THE MASS OF FLOWING WATER IN THE
LAKE AND OUTLET, THOUGH IT COULD AND DID ACQUIRE THE RIGHT TO ITS
USE."  SWEET V. SYRACUSE, 129 N.Y. 316, 335, 27 N.E. 1081, 1084. 

FN11  A RIPARIAN OWNER IN NEW YORK HAS A RIGHT TO USE THE WATERS OF
AN ABUTTING STREAM AS PART OF HIS ESTATE.  UNITED PAPER BOARD CO. V.
IROQUOIS PULP & PAPER CO., 226 N.Y. 38, 123 N.E. 200; WATERFORD
ELECTRIC LIGHT CO. V. NEW YORK, 208 APP. DIV. 273, 203 N.Y.S. 858,
AFF'D WITHOUT OPINION, 239 N.Y. 629, 147 N.E. 225. 

RECOVERY BY THE INTERNATIONAL PAPER COMPANY FOR THE DEPRIVATION OF
ITS USE OF THE INSTANT WATER RIGHTS IN 1917 WAS AUTHORIZED BY THIS
COURT IN 1931.  REFERRING TO THE 730 C.F.S.  NOW BEFORE US, MR. JUSTICE
HOLMES SAID FOR THE COURT:  "FROM THIS CANAL THE PETITIONER, THE
INTERNATIONAL PAPER COMPANY, WAS ENTITLED, BY CONVEYANCE AND LEASE, TO
DRAW AND WAS DRAWING 730 CUBIC FEET PER SECOND, - A RIGHT THAT BY THE
LAW OF NEW YORK WAS A CORPOREAL HEREDITAMENT AND REAL ESTATE." 
INTERNATIONAL PAPER CO. V. UNITED STATES, 282 U.S. 399, 405.  THE
GOVERNMENT WAS OBLIGED TO PAY FOR TAKING THOSE DIVERSIONARY RIGHTS BY
CONDEMNATION AND THEY ARE THE ONES FOR WHICH RESPONDENT IS NOW PAYING
AN ANNUAL RENTAL OF $99,000.  THE DEPRIVATION, THEREFORE, WAS NOT AN
EXERCISE OF THE GOVERNMENT'S DOMINANT SERVITUDE, BUT WAS A COMPENSABLE
TAKING BY CONDEMNATION OF THE PAPER COMPANY'S RECOGNIZED RIGHT TO USE
THE WATER.  "THE GOVERNMENT TOOK THE PROPERTY THAT THE PETITIONER OWNED
AS FULLY AS THE POWER COMPANY OWNED THE RESIDUE OF THE WATER POWER IN
THE CANAL."  ID., AT 408.  SEE ALSO, VAN ETTEN V. CITY OF NEW YORK, 226
N.Y. 483, 124 N.E. 201, AND PEOPLE EX REL. NIAGARA FALLS HYDRAULIC
POWER CO. V. SMITH, 70 APP. DIV. 543, 546, 75 N.Y.S. 1100, 1101, AFF'D
WITHOUT OPINION, 175 N.Y.  469, 67 N.E. 1088. 

FN12  THE EXISTENCE OF THE PETTEBONE-CATARACT WATER RIGHTS, UNDER THE
LAW OF NEW YORK PRIOR TO THE FEDERAL WATER POWER ACT, IS RECOGNIZED BY
THE COURTS OF THAT STATE.  HYDRAULIC POWER CO. V. PETTIBONE CATARACT
PAPER CO., 112 MISC. 528, 183 N.Y. SUPP. 373, AFF'D, 198 APP. DIV. 644,
191 N.Y. SUPP. 12. 

FURTHERMORE, ARTICLE 13 OF THE LICENSE RECOGNIZES AT LEAST THE
POSSIBILITY OF THE SURVIVAL OF THESE RIGHTS AFTER THE ISSUANCE OF THE
LICENSE.  IT PROVIDES THAT IN THE EVENT THE UNITED STATES OR A NEW
LICENSEE SHALL TAKE OVER THE PROJECT "SUCH TAKING OVER OF THE PROJECT
SHALL ALSO BE SUBJECT TO THE RIGHTS, IF ANY, OF PETTEBONE-CATARACT
PAPER COMPANY AND CATARACT CITY MILLING COMPANY TO WITHDRAW WATER AT A
RATE NOT EXCEEDING 265 CUBIC FEET PER SECOND FROM THE HYDRAULIC CANAL
OR BASIN OF LICENSEE, AND TO THE RIGHTS, IF ANY, OF INTERNATIONAL PAPER
COMPANY."  6 F.P.C. 184, 185. 

IN 1947, THE LICENSEE SECURED THE APPROVAL OF THE NEW YORK PUBLIC
SERVICE COMMISSION, AND OF THE SECURITIES & EXCHANGE COMMISSION (UNDER
SEC. 12(D) OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49 STAT.
824, 15 U.S.C. SEC. 79LD)), OF ITS PURCHASE OF THE PETTEBONE-CATARACT
RIGHTS FROM THE LICENSEE'S PARENT CORPORATION FOR $728,415.48.  HAVING
THUS COMPLETED THEIR PURCHASE, THE LICENSEE PETITIONED THE COMMISSION
TO AMEND ARTICLE 13 BY STRIKING FROM IT THE ABOVE ITALICIZED REFERENCE
TO THESE RIGHTS.  THE COMMISSION DECLINED AND, ACCORDINGLY, THE
ORIGINAL REFERENCE TO THE PETTEBONE-CATARACT RIGHTS, AS WELL AS THAT TO
THE RIGHTS OF THE INTERNATIONAL PAPER COMPANY, REMAINS IN THE LICENSE. 

THE COMMISSION'S DENIAL OF THE REQUESTED AMENDMENT WAS ON THE GROUND
THAT ITS CONSENT TO THE OMISSION OF THE ORIGINAL EQUIVOCAL REFERENCE TO
THE RIGHTS "MIGHT BE CONSTRUED AS RECOGNIZING OTHER ALLEGED WATER
RIGHTS CLAIMED BY ANOTHER COMPANY."  6 F.P.C., AT 188.  THE COMMISSION
TOOK THE POSITION THAT THE RIGHTS IN QUESTION HAD NO EXISTENCE AFTER
THE ENACTMENT OF THE FEDERAL WATER POWER ACT AND IT NOW REGARDS ITSELF
AS CONTROLLED BY THAT REASONING.  9 F.P.C., AT 252, 258-259.  ITS
ACTION, HOWEVER, WAS NOT CONSIDERED BY THE COURT OF APPEALS TO BE
DISPOSITIVE OF THE ISSUE AND IT IS NOT BINDING UPON US. 

FN13  UNITED STATES V. WILLOW RIVER POWER CO., 324 U.S. 499; UNITED
STATES V. CHICAGO, M., ST. P.&P.R. CO., 312 U.S. 592; UNITED STATES V.
APPALACHIAN POWER CO., 311 U.S. 377.  SEE ALSO, UNITED STATES V. KANSAS
CITY INS. CO., 339 U.S. 799. 

FN14  IT WAS IN THIS CONNECTION THAT THE COURT POINTED OUT THE
INCONCEIVABILITY OF PRIVATE OWNERSHIP IN THE RUNNING WATER OF NAVIGABLE
STREAMS AS DISTINGUISHED FROM PRIVATE PROPRIETARY RIGHTS TO THE USE OF
SUCH WATER FOR POWER AND OTHER PURPOSES.  UNITED STATES V. CHANDLER
DUNBAR CO., 229 U.S., AT 69-70. 

FN15  CHAPMAN V. FEDERAL POWER COMMISSION, 345 U.S. 153, 167-168;
FIRST IOWA COOPERATIVE V. FEDERAL POWER COMMISSION, 328 U.S. 152, 180
181.  THE ACT WAS DEDICATED TO "ENCOURAGING PRIVATE ENTERPRISE AND THE
INVESTMENT OF PRIVATE CAPITAL" IN POWER PROJECTS ON A BASIS CONSISTENT
WITH THE PUBLIC INTEREST.  H.R. REP. NO. 61, 66TH CONG., 1ST SESS. 3. 
THE BILL WAS TO PROVIDE "A METHOD BY WHICH THE WATER POWERS OF THE
COUNTRY, WHEREVER LOCATED, CAN BE DEVELOPED BY PUBLIC OR PRIVATE
AGENCIES UNDER CONDITIONS WHICH WILL GIVE THE NECESSARY SECURITY TO THE
CAPITAL INVESTED AND AT THE SAME TIME PROTECT AND PRESERVE EVERY
LIGITIMATE PUBLIC INTEREST."  STATEMENT OF DAVID F. HOUSTON, SECRETARY
OF AGRICULTURE.  ID., AT 5. 

FN16  SECTION 14 EVEN PROVIDES:  "NOR SHALL THE VALUES ALLOWED FOR
WATER RIGHTS, RIGHTS-OF-WAY, LANDS, OR INTEREST IN LANDS (USED IN
COMPUTING A LICENSEE'S NET INVESTMENT) BE IN EXCESS OF THE ACTUAL
REASONABLE COST THEREOF AT THE TIME OF ACQUISITION BY THE LICENSEE:
...  ."  49 STAT. 844-845, 16 U.S.C. SEC. 807. 

FN17  IN SEC. 3(11) "PROJECT" IS SAID TO INCLUDE "ALL WATER-RIGHTS
...  NECESSARY OR APPROPRIATE IN THE MAINTENANCE AND OPERATION OF SUCH
UNIT," 49 STAT. 838, 839; SEC. 4(B) EMPOWERS THE COMMISSION, IN
DETERMINING THE ORIGINAL COST OF A PROJECT AND THE NET INVESTMENT IN
IT, TO REQUIRE LICENSEES TO SHOW "THE PRICE PAID FOR WATER RIGHTS" AS
WELL AS FOR LANDS, 49 STAT. 839; SEC. 9(B) REQUIRES AN APPLICANT FOR A
LICENSE TO SUBMIT EVIDENCE OF WHATEVER COMPLIANCE HE HAS MADE WITH THE
REQUIREMENTS OF STATE LAW WITH RESPECT TO "THE APPROPRIATION,
DIVERSION, AND USE OF WATER FOR POWER PURPOSES," 41 STAT. 1068; SEC. 14
REQUIRES, WHEN TAKING OVER A LICENSED PROJECT, THAT THE "VALUES ALLOWED
FOR WATER RIGHTS" SHALL NOT BE "IN EXCESS OF THE ACTUAL REASONABLE COST
THEREOF AT THE TIME OF ACQUISITION BY THE LICENSEE" (COMMISSIONER SMITH
EMPHASIZED THE SIGNIFICANCE OF THIS CLAUSE, 9 F.P.C., AT 261), 49 STAT.
844-845; SEC. 23(B) RECOGNIZES THE APPLICATION OF STATE LAWS TO
PROJECTS WHERE INTERSTATE OR FOREIGN COMMERCE, PUBLIC LANDS AND
RESERVATIONS ARE NOT AFFECTED, 49 STAT. 846; SEC. 27 PROVIDES THAT
"NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS AFFECTING OR INTENDING
TO AFFECT OR IN ANY WAY TO INTERFERE WITH THE LAWS OF THE RESPECTIVE
STATES RELATING TO THE CONTROL, APPROPRIATION, USE, OR DISTRIBUTION OF
WATER USED IN IRRIGATION OR FOR MUNICIPAL OR OTHER USES, OR ANY VESTED
RIGHT ACQUIRED THEREIN," 41 STAT. 1077.  SEE 16 U.S.C. SECS. 796-821. 

FN18  IN 1917, THE SENATE COMMITTEE ON COMMERCE SAID: 

"THE BILL IS SO FRAMED AS TO PROTECT AND MAINTAIN THE CONSTITUTIONAL
POWER AND CONTROL OF THE FEDERAL GOVERNMENT OVER NAVIGABLE STREAMS, AS
WELL AS THE SOVEREIGNTY OF THE STATES AND THE RIGHTS OF RIPARIAN
PROPRIETORS OVER AND IN THE BEDS AND WATERS OF THOSE STREAMS, AND ALLOW
THE FULL EXERCISE AND ENJOYMENT OF THE LATTER, SUBJECT TO THE PARAMOUNT
AUTHORITY OF CONGRESS TO REGULATE THE SAME FOR NAVIGATION PURPOSES." 
S. REP. NO. 179, 65TH CONG., 2D SESS. 4, AS TO S. 1419. 

FOR A HISTORY OF THE CONGRESSIONAL DEBATES AND HEARINGS, SEE KERWIN,
FEDERAL WATER-POWER LEGISLATION (1926). 

FN19  THE COURT REFRAINED FROM DETERMINING WHETHER SEC. 21 OF THE
ACT, AS TO EMINENT DOMAIN, GAVE THE LICENSEE A FURTHER RIGHT TO CONDEMN
AND THUS PAY FOR THE PREEXISTING RIGHTS.  ID., AT 379. 

FN20  CLAIMS OF THE STATE OF NEW YORK, IN ITS OWN FAVOR, SUGGESTED IN
ITS BRIEF OR ORAL ARGUMENT AS AMICUS CURIAE, ARE NOT BEFORE US. 

APPENDIX TO OPINION OF THE COURT IS OMITTED. 

MR. JUSTICE REED WITHDREW FROM THE CONSIDERATION AND DECISION OF THIS
CASE. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

(FOR DISSENTING OPINION, SEE P. 258.) 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MINTON CONCUR, DISSENTING. 

U.S.C. SEC. 803(D), REQUIRES LICENSEES TO SET UP AMORTIZATION RESERVES
OUT OF THEIR SURPLUS EARNINGS.  THE COMMISSION ENFORCED THIS
REQUIREMENT BY ORDERING NIAGARA TO MAKE A BOOK TRANSFER OF SURPLUS
EARNINGS TO AN AMORTIZATION RESERVE ACCOUNT.  IN DETERMINING THE AMOUNT
OF EARNINGS AVAILABLE FOR AMORTIZATION THE COMMISSION REFUSED TO ALLOW
CERTAIN WATER-RIGHT PAYMENTS AS EXPENSES.  THE ONLY QUESTION BEFORE THE
COURT IS WHETHER THE COMMISSION COULD LAWFULLY DISREGARD THESE EXPENSES
IN COMPUTING NIAGARA'S EARNINGS FOR SEC. 10(D) PURPOSES. 

THE AMORTIZATION RESERVE REQUIRED BY SEC. 10(D) SERVES THE FUNCTION
OF REDUCING NIAGARA'S NET INVESTMENT.  SEC. 3(13).  NIAGARA'S NET
INVESTMENT IS THE MEASURE OF THE AMOUNT THE UNITED STATES MUST PAY IF
IT DECIDES TO RECAPTURE NIAGARA'S PLANT UNDER SEC. 14 OF THE ACT. 
(FN1)  BY ALLOWING THESE WATER-RIGHT PAYMENTS AS EXPENSES FOR THIS
PURPOSE THE COURT INCREASES THE ULTIMATE OBLIGATION OF THE UNITED
STATES. 

IT MAY BE THAT NIAGARA IS UNDER A LEGAL DUTY TO PAY FOR ITS WATER
RIGHTS UNDER STATE LAW.  AND I AGREE THAT THE FEDERAL POWER ACT WAS NOT
INTENDED TO INTERFERE WITH WATER RIGHTS CREATED BY STATE LAW.  BUT IT
IS NOT TRUE THAT THE UNITED STATES CAN BE MADE TO PAY, DIRECTLY OR
INDIRECTLY, FOR THE USE OF THE WATERS OF A NAVIGABLE STREAM.  THAT HAS
BEEN SETTLED AT LEAST SINCE UNITED STATES V. CHANDLER-DUNBAR CO., 229
U.S. 53.  (FN2)  "OWNERSHIP OF A PRIVATE STREAM WHOLLY UPON THE LANDS
OF AN INDIVIDUAL IS CONCEIVABLE; BUT THAT THE RUNNING WATER IN A GREAT
NAVIGABLE STREAM IS CAPABLE OF PRIVATE OWNERSHIP IS INCONCEIVABLE." 
ID., P. 69.  IF NIAGARA MUST PAY FOR ITS WATER RIGHTS WITHOUT BEING
REIMBURSED BY THE UNITED STATES, THAT IS THE PRICE NIAGARA MUST PAY FOR
ITS FEDERAL LICENSE.  SEE UNITED STATES V. APPALACHIAN POWER CO., 311
U.S. 377, CF. REGENTS V. CARROLL, 338 U.S. 586.  THE FEDERAL POWER ACT
SHOULD NOT BE CONSTRUED AS REQUIRING THE UNITED STATES TO PAY FOR
SOMETHING IT ALREADY OWNS.  (FN3)  BUT THAT IS PRECISELY WHAT THE COURT
DOES TODAY. 

FN1  THE SAME IS TRUE IN CASE THE UNITED STATES MOVES TO ACQUIRE THE
PROPERTIES UNDER SEC. 26 BY JUDICIAL SALE. 

FN2  SEE ALSO UNITED STATES V. CHICAGO, M., ST. P.&P.R. CO., 312 U.S.
592; UNITED STATES V. COMMODORE PARK, INC., 324 U.S. 386; UNITED STATES
V. WILLOW RIVER CO., 324 U.S. 499. 

FN3  THE COMMAND OF SEC. 14 IS OTHERWISE.  IT EXCLUDES FROM THE "NET
INVESTMENT," WHICH MUST BE PAID IF THE FEDERAL GOVERNMENT DECIDES TO
RECAPTURE THE PROJECT, "THE VALUE OF ANY LANDS, RIGHTS-OF-WAY, OR OTHER
PROPERTY OF THE UNITED STATES LICENSED BY THE COMMISSION UNDER THIS
ACT." 
..END :




















UNITED STATES, ACCARDI V. SHAUGHNESSY 347 U.S. 260 


NO. 366.  ARGUED FEBRUARY 2, 1954 - DECIDED MARCH 15, 1954 - 206 F.2D
897, REVERSED. 


BY A HABEAS CORPUS PROCEEDING IN A FEDERAL DISTRICT COURT, PETITIONER
CHALLENGED THE VALIDITY OF THE DENIAL OF HIS APPLICATION FOR SUSPENSION
OF DEPORTATION UNDER THE PROVISIONS OF SEC. 19(C) OF THE IMMIGRATION
ACT OF 1917.  ADMITTEDLY DEPORTABLE, PETITIONER ALLEGED, INTER ALIA,
THAT THE DENIAL OF HIS APPLICATION BY THE BOARD OF IMMIGRATION APPEALS
WAS PREJUDGED THROUGH THE ISSUANCE BY THE ATTORNEY GENERAL IN 1952,
PRIOR TO THE BOARD'S DECISION, OF A CONFIDENTIAL LIST OF "UNSAVORY
CHARACTERS" INCLUDING PETITIONER'S NAME, WHICH MADE IT IMPOSSIBLE FOR
PETITIONER "TO SECURE FAIR CONSIDERATION OF HIS CASE."  REGULATIONS
PROMULGATED BY THE ATTORNEY GENERAL AND HAVING THE FORCE AND EFFECT OF
LAW DELEGATED THE ATTORNEY GENERAL'S DISCRETIONARY POWER UNDER SEC.
19(C) IN SUCH CASES TO THE BOARD AND REQUIRED THE BOARD TO EXERCISE ITS
OWN DISCRETION WHEN CONSIDERING APPEALS.  HELD: PETITIONER IS ENTITLED
TO AN OPPORTUNITY IN THE DISTRICT COURT TO PROVE THE ALLEGATION; AND,
IF HE DOES PROVE IT, HE SHOULD RECEIVE A NEW HEARING BEFORE THE BOARD
WITHOUT THE BURDEN OF PREVIOUS PROSCRIPTION BY THE LIST.  PP. 261-268. 

(A)  AS LONG AS THE ATTORNEY GENERAL'S ADMINISTRATIVE REGULATION
CONFERRING "DISCRETION" ON THE BOARD REMAINS OPERATIVE, THE ATTORNEY
GENERAL DENIES HIMSELF THE RIGHT TO SIDESTEP THE BOARD OR DICTATE ITS
DECISION IN ANY MANNER.  PP. 265-267. 

(B)  THE ALLEGATIONS OF THE HABEAS CORPUS PETITION IN THIS CASE WERE
SUFFICIENT TO CHARGE THE ATTORNEY GENERAL WITH DICTATING THE BOARD'S
DECISION.  PP. 267-268. 

(C)  THIS COURT IS NOT HERE REVIEWING AND REVERSING THE MANNER IN
WHICH DISCRETION WAS EXERCISED BY THE BOARD, BUT RATHER REGARDS AS
ERROR THE BOARD'S ALLEGED FAILURE TO EXERCISE ITS OWN DISCRETION,
CONTRARY TO EXISTING VALID REGULATIONS.  P. 268. 

(D)  PETITIONER'S APPLICATION FOR SUSPENSION OF DEPORTATION HAVING
BEEN MADE IN 1948, THIS PROCEEDING IS GOVERNED BY SEC. 19(C) OF THE
1917 ACT RATHER THAN BY THE IMMIGRATION AND NATIONALITY ACT OF 1952. 
P. 261, N. 1. 

(E)  THE DOCTRINE OF RES JUDICATA IS INAPPLICABLE TO HABEAS CORPUS
PROCEEDINGS.  P. 263, N. 4. 

UNITED STATES EX REL. ACCARDI V. SHAUGHNESSY, DISTRICT DIRECTOR OF THE
IMMIGRATION AND NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS WAS DENIED BY
THE DISTRICT COURT.  THE COURT OF APPEALS AFFIRMED.  206 F.2D 897. 
THIS COURT GRANTED CERTIORARI.  346 U.S. 884.  REVERSED, P. 268. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A HABEAS CORPUS ACTION IN WHICH THE PETITIONER ATTACKS THE
VALIDITY OF THE DENIAL OF HIS APPLICATION FOR SUSPENSION OF DEPORTATION
UNDER THE PROVISIONS OF SEC. 19(C) OF THE IMMIGRATION ACT OF 1917. 
(FN1)  ADMITTEDLY DEPORTABLE, THE PETITIONER ALLEGED, AMONG OTHER
THINGS, THAT THE DENIAL OF HIS APPLICATION BY THE BOARD OF IMMIGRATION
APPEALS WAS PREJUDGED THROUGH THE ISSUANCE BY THE ATTORNEY GENERAL IN
1952, PRIOR TO THE BOARD'S DECISION, OF A CONFIDENTIAL LIST OF
"UNSAVORY CHARACTERS" INCLUDING PETITIONER'S NAME, WHICH MADE IT
IMPOSSIBLE FOR HIM "TO SECURE FAIR CONSIDERATION OF HIS CASE."  THE
DISTRICT JUDGE REFUSED THE OFFER OF PROOF, DENYING THE WRIT ON THE
ALLEGATIONS OF THE PETITIONER WITHOUT WRITTEN OPINION.  A DIVIDED PANEL
OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  206 F.2D
897.  WE GRANTED CERTIORARI.  346 U.S. 884. 

THE JUSTICE DEPARTMENT'S IMMIGRATION FILE ON PETITIONER REVEALS THE
FOLLOWING RELEVANT FACTS.  HE WAS BORN IN ITALY OF ITALIAN PARENTS IN
1909 AND ENTERED THE UNITED STATES BY TRAIN FROM CANADA IN 1932 WITHOUT
IMMIGRATION INSPECTION AND WITHOUT AN IMMIGRATION VISA.  THIS ENTRY
CLEARLY FALLS UNDER SEC. 14 OF THE IMMIGRATION ACT OF 1924 (FN2) AND IS
THE UNCONTESTED GROUND FOR DEPORTATION.  THE DEPORTATION PROCEEDINGS
AGAINST HIM BEGAN IN 1947.  IN 1948 HE APPLIED FOR SUSPENSION OF
DEPORTATION PURSUANT TO SEC. 19(C) OF THE IMMIGRATION ACT OF 1917. 
THIS SECTION AS AMENDED IN 1948 PROVIDES, IN PERTINENT PART, THAT: 

"IN THE CASE OF ANY ALIEN (OTHER THAN ONE TO WHOM SUBSECTION (D) OF
THIS SECTION IS APPLICABLE) 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 JULY 1, 1948."  8 U.S.C. (1946 ED.,
SUPP. V) SEC. 155(C). 

HEARINGS ON THE DEPORTATION CHARGE AND THE APPLICATION FOR SUSPENSION
OF DEPORTATION WERE HELD BEFORE OFFICERS OF THE IMMIGRATION AND
NATURALIZATION SERVICE AT VARIOUS TIMES FROM 1948 TO 1952.  A HEARING
OFFICER ULTIMATELY FOUND PETITIONER DEPORTABLE AND RECOMMENDED A DENIAL
OF DISCRETIONARY RELIEF.  ON JULY 7, 1952, THE ACTING COMMISSIONER OF
IMMIGRATION ADOPTED THE OFFICER'S FINDINGS AND RECOMMENDATION.  ALMOST
NINE MONTHS LATER, ON APRIL 3, 1953, THE BOARD OF IMMIGRATION APPEALS
AFFIRMED THE DECISION OF THE HEARING OFFICER.  A WARRANT OF DEPORTATION
WAS ISSUED THE SAME DAY AND ARRANGEMENTS WERE MADE FOR ACTUAL
DEPORTATION TO TAKE PLACE ON APRIL 24, 1953. 

THE SCENE OF ACTION THEN SHIFTED TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK.  ONE DAY BEFORE HIS SCHEDULED
DEPORTATION PETITIONER SUED OUT A WRIT OF HABEAS CORPUS.  DISTRICT
JUDGE NOONAN DISMISSED THE WRIT ON APRIL 30 AND HIS ORDER, FORMALLY
ENTERED ON MAY 5, WAS NEVER APPEALED.  ARRANGEMENTS WERE THEN MADE FOR
PETITIONER TO DEPART ON MAY 19.  (FN3)  HOWEVER, ON MAY 15, HIS WIFE
COMMENCED THIS ACTION BY FILING A PETITION FOR A SECOND WRIT OF HABEAS
CORPUS.  (FN4)  NEW GROUNDS WERE ALLEGED, ON INFORMATION AND BELIEF,
FOR ATTACKING THE ADMINISTRATIVE REFUSAL TO SUSPEND DEPORTATION.  (FN5)
THE PRINCIPAL GROUND IS THAT ON OCTOBER 2, 1952 - AFTER THE ACTING
COMMISSIONER'S DECISION IN THE CASE BUT BEFORE THE DECISION OF THE
BOARD OF IMMIGRATION APPEALS - THE ATTORNEY GENERAL ANNOUNCED AT A
PRESS CONFERENCE THAT HE PLANNED TO DEPORT CERTAIN "UNSAVORY
CHARACTERS"; ON OR ABOUT THAT DATE THE ATTORNEY GENERAL PREPARED A
CONFIDENTIAL LIST OF ONE HUNDRED INDIVIDUALS, INCLUDING PETITIONER,
WHOSE DEPORTATION HE WISHED; THE LIST WAS CIRCULATED BY THE DEPARTMENT
OF JUSTICE AMONG ALL EMPLOYEES IN THE IMMIGRATION SERVICE AND ON THE
BOARD OF IMMIGRATION APPEALS; AND THAT ISSUANCE OF THE LIST AND RELATED
PUBLICITY AMOUNTED TO PUBLIC PREJUDGMENT BY THE ATTORNEY GENERAL SO
THAT FAIR CONSIDERATION OF PETITIONER'S CASE BY THE BOARD OF
IMMIGRATION APPEALS WAS MADE IMPOSSIBLE.  ALTHOUGH AN OPPOSING
AFFIDAVIT SUBMITTED BY GOVERNMENT COUNSEL DENIED "THAT THE DECISION WAS
BASED ON INFORMATION OUTSIDE OF THE RECORD" AND CONTENDED THAT THE
ALLEGATION OF PREJUDGMENT WAS "FRIVOLOUS," THE SAME COUNSEL REPEATED IN
A COLLOQUY WITH THE COURT A STATEMENT HE HAD MADE AT THE FIRST HABEAS
CORPUS HEARING - "THAT THIS MAN WAS ON THE ATTORNEY GENERAL'S
PROSCRIBED LIST OF ALIEN DEPORTEES." 

DISTRICT JUDGE CLANCY DID NOT ORDER A HEARING ON THE ALLEGATIONS AND
SUMMARILY REFUSED TO ISSUE A WRIT OF HABEAS CORPUS.  AN APPEAL WAS
TAKEN TO THE COURT OF APPEALS FOR THE SECOND CIRCUIT WITH THE
CONTENTION THAT THE ALLEGATIONS REQUIRED A HEARING IN THE DISTRICT
COURT AND THAT THE WRIT SHOULD HAVE BEEN ISSUED IF THE ALLEGATIONS WERE
PROVED.  A MAJORITY OF THE COURT OF APPEALS' PANEL THOUGHT THE
ADMINISTRATIVE RECORD AMPLY SUPPORTED A REFUSAL TO SUSPEND DEPORTATION;
FOUND NOTHING IN THE RECORD TO INDICATE THAT THE ADMINISTRATIVE
OFFICIALS CONSIDERED ANYTHING BUT THAT RECORD IN ARRIVING AT A DECISION
IN THE CASE; AND RULED THAT THE ASSERTION OF MERE "SUSPICION AND
BELIEF" THAT EXTRANEOUS MATTERS WERE CONSIDERED DOES NOT REQUIRE A
HEARING.  JUDGE FRANK DISSENTED. 

THE SAME QUESTIONS PRESENTED TO THE COURT OF APPEALS WERE RAISED IN
THE PETITION FOR CERTIORARI AND ARE THUS PROPERLY BEFORE US. THE
CRUCIAL QUESTION IS WHETHER THE ALLEGED CONDUCT OF THE ATTORNEY GENERAL
DEPRIVED PETITIONER OF ANY OF THE RIGHTS GUARANTEED HIM BY THE STATUTE
OR BY THE REGULATIONS ISSUED PURSUANT THERETO. 

REGULATIONS (FN6) WITH THE FORCE AND EFFECT OF LAW (FN7) SUPPLEMENT
THE BARE BONES OF SEC. 19(C).  THE REGULATIONS PRESCRIBE THE PROCEDURE
TO BE FOLLOWED IN PROCESSING AN ALIEN'S APPLICATION FOR SUSPENSION OF
DEPORTATION.  UNTIL THE 1952 REVISION OF THE REGULATIONS, THE PROCEDURE
CALLED FOR DECISIONS AT THREE SEPARATE ADMINISTRATIVE LEVELS BELOW THE
ATTORNEY GENERAL - HEARING OFFICER, COMMISSIONER, AND THE BOARD OF
IMMIGRATION APPEALS.  THE BOARD IS APPOINTED BY THE ATTORNEY GENERAL,
SERVES AT HIS PLEASURE, AND OPERATES UNDER REGULATIONS PROVIDING THAT:
"IN CONSIDERING AND DETERMINING  ...  APPEALS, THE BOARD OF IMMIGRATION
APPEALS SHALL EXERCISE SUCH DISCRETION AND POWER CONFERRED UPON THE
ATTORNEY GENERAL BY LAW AS IS APPROPRIATE AND NECESSARY FOR THE
DISPOSITION OF THE CASE.  THE DECISION OF THE BOARD  ...  SHALL BE
FINAL EXCEPT IN THOSE CASES REVIEWED BY THE ATTORNEY GENERAL  ...  ." 
8 CFR, 1949, SEC. 90.3(C).  SEE 8 CFR, REV. 1952, SEC. 6.1(D)(1).  AND
THE BOARD WAS REQUIRED TO REFER TO THE ATTORNEY GENERAL FOR REVIEW ALL
CASES WHICH: 

"(A)  THE ATTORNEY GENERAL DIRECTS THE BOARD TO REFER TO HIM. 

"(B)  THE CHAIRMAN OR A MAJORITY OF THE BOARD BELIEVES SHOULD BE
REFERRED TO THE ATTORNEY GENERAL FOR REVIEW OF ITS DECISION. 

"(C)  THE COMMISSIONER REQUESTS BE REFERRED TO THE ATTORNEY GENERAL
BY THE BOARD AND IT AGREES."  8 CFR, 1949, SEC. 90.12.  SEE 8 CFR, REV.
1952, SEC. 6.1(H)(1). 

THE REGULATIONS JUST QUOTED PINPOINT THE DECISIVE FACT IN THIS CASE:
THE BOARD WAS REQUIRED, AS IT STILL IS, TO EXERCISE ITS OWN JUDGMENT
WHEN CONSIDERING APPEALS.  THE CLEAR IMPORT OF BROAD PROVISIONS FOR A
FINAL REVIEW BY THE ATTORNEY GENERAL HIMSELF WOULD BE MEANINGLESS IF
THE BOARD WERE NOT EXPECTED TO RENDER A DECISION IN ACCORD WITH ITS OWN
COLLECTIVE BELIEF.  IN UNEQUIVOCAL TERMS THE REGULATIONS DELEGATE TO
THE BOARD DISCRETIONARY AUTHORITY AS BROAD AS THE STATUTE CONFERS ON
THE ATTORNEY GENERAL; THE SCOPE OF THE ATTORNEY GENERAL'S DISCRETION
BECAME THE YARDSTICK OF THE BOARD'S.  AND IF THE WORD "DISCRETION"
MEANS ANYTHING IN A STATUTORY OR ADMINISTRATIVE GRANT OF POWER, IT
MEANS THAT THE RECIPIENT MUST EXERCISE HIS AUTHORITY ACCORDING TO HIS
OWN UNDERSTANDING AND CONSCIENCE.  THIS APPLIES WITH EQUAL FORCE TO THE
BOARD AND THE ATTORNEY GENERAL.  IN SHORT, AS LONG AS THE REGULATIONS
REMAIN OPERATIVE, THE ATTORNEY GENERAL DENIES HIMSELF THE RIGHT TO
SIDESTEP THE BOARD OR DICTATE ITS DECISION IN ANY MANNER. 

WE THINK THE PETITION FOR HABEAS CORPUS CHARGES THE ATTORNEY GENERAL
WITH PRECISELY WHAT THE REGULATIONS FORBID HIM TO DO:  DICTATING THE
BOARD'S DECISION.  THE PETITION ALLEGES THAT THE ATTORNEY GENERAL
INCLUDED THE NAME OF PETITIONER IN A CONFIDENTIAL LIST OF "UNSAVORY
CHARACTERS" WHOM HE WANTED DEPORTED; PUBLIC ANNOUNCEMENTS CLEARLY
REVEAL THAT THE ATTORNEY GENERAL DID NOT REGARD THE LISTING AS A MERE
PRELIMINARY TO INVESTIGATION AND DEPORTATION; TO THE CONTRARY, THOSE
LISTED WERE PERSONS WHOM THE ATTORNEY GENERAL "PLANNED TO DEPORT." 
AND, IT IS ALLEGED, THIS INTENTION WAS MADE QUITE CLEAR TO THE BOARD
WHEN THE LIST WAS CIRCULATED AMONG ITS MEMBERS.  IN FACT, THE ASSISTANT
DISTRICT ATTORNEY CHARACTERIZED IT AS THE "ATTORNEY GENERAL'S
PROSCRIBED LIST OF ALIEN DEPORTEES."  TO BE SURE, THE PETITION DOES NOT
ALLEGE THAT THE "ATTORNEY GENERAL ORDERED THE BOARD TO DENY
DISCRETIONARY RELIEF TO THE LISTED ALIENS."  IT WOULD BE NAIVE TO
EXPECT SUCH A HEAVY-HANDED WAY OF DOING THINGS.  HOWEVER, PROOF WAS
OFFERED AND REFUSED THAT THE COMMISSIONER OF IMMIGRATION TOLD PREVIOUS
COUNSEL OF PETITIONER, "WE CAN'T DO A THING IN YOUR CASE BECAUSE THE
ATTORNEY GENERAL HAS HIS (PETITIONER'S) NAME ON THAT LIST OF A
HUNDRED."  WE BELIEVE THE ALLEGATIONS ARE QUITE SUFFICIENT WHERE THE
BODY CHARGED WITH THE EXERCISE OF DISCRETION IS A NONSTATUTORY BOARD
COMPOSED OF SUBORDINATES WITHIN A DEPARTMENT HEADED BY THE INDIVIDUAL
WHO FORMULATED, ANNOUNCED, AND CIRCULATED SUCH VIEWS OF THE PENDING
PROCEEDING. 

IT IS IMPORTANT TO EMPHASIZE THAT WE ARE NOT HERE REVIEWING AND
REVERSING THE MANNER IN WHICH DISCRETION WAS EXERCISED.  IF SUCH WERE
THE CASE WE WOULD BE DISCUSSING THE EVIDENCE IN THE RECORD SUPPORTING
OR UNDERMINING THE ALIEN'S CLAIM TO DISCRETIONARY RELIEF.  RATHER, WE
OBJECT TO THE BOARD'S ALLEGED FAILURE TO EXERCISE ITS OWN DISCRETION,
CONTRARY TO EXISTING VALID REGULATIONS. 

IF PETITIONER CAN PROVE THE ALLEGATION, HE SHOULD RECEIVE A NEW
HEARING BEFORE THE BOARD WITHOUT THE BURDEN OF PREVIOUS PROSCRIPTION BY
THE LIST.  AFTER THE RECALL OR CANCELLATION OF THE LIST, THE BOARD MUST
RULE OUT ANY CONSIDERATION THEREOF AND IN ARRIVING AT ITS DECISION
EXERCISE ITS OWN INDEPENDENT DISCRETION, AFTER A FAIR HEARING, WHICH IS
NOTHING MORE THAN WHAT THE REGULATIONS ACCORD PETITIONER AS A RIGHT. 
(FN8)  OF COURSE, HE MAY BE UNABLE TO PROVE HIS ALLEGATION BEFORE THE
DISTRICT COURT; BUT HE IS ENTITLED TO THE OPPORTUNITY TO TRY.  IF
SUCCESSFUL, HE MAY STILL FAIL TO CONVINCE THE BOARD OR THE ATTORNEY
GENERAL, IN THE EXERCISE OF THEIR DISCRETION, THAT HE IS ENTITLED TO
SUSPENSION, BUT AT LEAST HE WILL HAVE BEEN AFFORDED THAT DUE PROCESS
REQUIRED BY THE REGULATIONS IN SUCH PROCEEDINGS.  REVERSED. 

FN1  39 STAT. 889, AS AMENDED, 8 U.S.C. (1946 ED., SUPP. V) SEC.
155(C).  SECTION 405 IS THE SAVINGS CLAUSE OF THE IMMIGRATION AND
NATIONALITY ACT OF 1952 AND ITS SUBSECTION (A) PROVIDES THAT: 

"NOTHING CONTAINED IN THIS ACT, UNLESS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, SHALL BE CONSTRUED TO AFFECT THE VALIDITY OF ANY  ...
PROCEEDING WHICH SHALL BE VALID AT THE TIME THIS ACT SHALL TAKE
EFFECT; OR TO AFFECT ANY ...  PROCEEDINGS  ...  BROUGHT  ...  AT THE
TIME THIS ACT SHALL TAKE EFFECT; BUT AS TO ALL SUCH  ...  PROCEEDINGS,
...  THE STATUTES OR PARTS OF STATUTES REPEALED BY THIS ACT ARE, UNLESS
OTHERWISE SPECIFICALLY PROVIDED THEREIN, HEREBY CONTINUED IN FORCE AND
EFFECT ...  .  AN APPLICATION FOR SUSPENSION OF DEPORTATION UNDER
PENDING ON THE DATE OF ENACTMENT OF THIS ACT (JUNE 27, 1952), SHALL BE
REGARDED AS A PROCEEDING WITHIN THE MEANING OF THIS SUBSECTION."  66
STAT. 280, 8 U.S.C. (1952 ED.), P. 734. 

SINCE ACCARDI'S APPLICATION FOR SUSPENSION OF DEPORTATION WAS MADE IN
1948, SEC. 19(C) OF THE 1917 ACT CONTINUES TO GOVERN THIS PROCEEDING
RATHER THAN ITS MORE STRINGENT EQUIVALENT IN THE 1952 ACT, SEC. 244, 66
STAT. 214, 8 U.S.C. (1952 ED.)  SEC.  1254. 

FN2  "ANY ALIEN WHO AT ANY TIME AFTER ENTERING THE UNITED STATES IS
FOUND TO HAVE BEEN AT THE TIME OF ENTRY NOT ENTITLED UNDER THIS ACT TO
ENTER THE UNITED STATES  ...  SHALL BE TAKEN INTO CUSTODY AND DEPORTED
IN THE SAME MANNER AS PROVIDED FOR IN SECTIONS 19 AND 20 OF THE
IMMIGRATION ACT OF 1917  ...  ."  43 STAT. 162, 8 U.S.C. (1946 ED.) 
SEC.  214.  THIS GROUND FOR DEPORTATION IS PERPETUATED BY SEC.
241(A)(1) AND (2) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952.  66
STAT. 204, 8 U.S.C. (1952 ED.)  SEC.  1251(A)(1) AND (2).    FN3
MEANWHILE, ACCARDI MOVED THE BOARD OF IMMIGRATION APPEALS TO RECONSIDER
HIS CASE.  THE MOTION WAS DENIED ON MAY 8. 

FN4  RES JUDICATA DOES NOT APPLY TO PROCEEDINGS FOR HABEAS CORPUS. 
SALINGER V. LOISEL, 265 U.S. 224 (1924); WONG DOO V. UNITED STATES, 265
U.S. 239 (1924). 

FN5  THE FIRST GROUND WAS THAT "IN ALL SIMILAR CASES THE BOARD OF
IMMIGRATION APPEALS HAS EXERCISED FAVORABLE DISCRETION AND ITS REFUSAL
TO DO SO HEREIN CONSTITUTES AN ABUSE OF DISCRETION."  THIS IS A WHOLLY
FRIVOLOUS CONTENTION, ADEQUATELY DISPOSED OF BY THE COURT OF APPEALS. 
206 F.2D 897, 901.  ANOTHER ALLEGATION CHARGED "THAT THE DEPARTMENT OF
JUSTICE MAINTAINS A CONFIDENTIAL FILE WITH RESPECT TO JOSEPH ACCARDI." 
BUT AT NO PLACE DOES THE PETITION ELABORATE ON THIS CHARGE, NOR DOES
THE PETITION ALLEGE THAT DISCRETIONARY RELIEF WAS DENIED BECAUSE OF
INFORMATION CONTAINED IN A CONFIDENTIAL FILE.  ALTHOUGH THE PETITION
DOES ALLEGE THAT "BECAUSE OF CONSIDERATION OF MATTERS OUTSIDE THE
RECORD OF HIS IMMIGRATION HEARING, DISCRETIONARY RELIEF HAS BEEN
DENIED," THIS ALLEGATION SEEMS TO REFER TO THE "CONFIDENTIAL LIST"
DISCUSSED IN THE BODY OF THE OPINION.  HENCE WE ASSUME THAT THE CHARGE
OF RELIANCE ON CONFIDENTIAL INFORMATION MERELY REPEATS THE PRINCIPAL
ALLEGATION THAT THE ATTORNEY GENERAL'S PREJUDGMENT OF ACCARDI'S CASE BY
ISSUANCE OF THE "CONFIDENTIAL LIST" CAUSED THE BOARD TO DENY
DISCRETIONARY RELIEF. 

FN6  THE APPLICABLE REGULATIONS IN EFFECT DURING MOST OF THIS
PROCEEDING APPEAR AT 8 CFR, 1949, PTS.  150 AND 90 AND 8 CFR, 1951
POCKET SUPP., PTS.  150, 151 AND 90.  THE CORRESPONDING SECTIONS IN THE
1952 REVISION OF THE REGULATIONS, PROMULGATED PURSUANT TO THE
IMMIGRATION AND NATIONALITY ACT OF 1952, MAY BE FOUND AT 8 CFR, REV.
1952, PTS.  242-244 AND 6; 8 CFR, 1954 POCKET SUPP., PTS.  242-244 AND
6; 19 FED. REG. 930. 

FN7  SEE BOSKE V. COMINGORE, 177 U.S. 459 (1900); UNITED STATES EX
REL. BILOKUMSKY V. TOD, 263 U.S. 149, 155 (1923); BRIDGES V. WIXON, 326
U.S. 135, 150-156 (1945). 

FN8  SEE THE BILOKUMSKY AND BRIDGES CASES CITED IN NOTE 7, SUPRA. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE REED, MR. JUSTICE BURTON, AND
MR. JUSTICE MINTON JOIN, DISSENTING. 

WE FEEL CONSTRAINED TO DISSENT FROM THE LEGAL DOCTRINE BEING
ANNOUNCED.  THE DOCTRINE SEEMS PROOF OF THE ADAGE THAT HARD CASES MAKE
BAD LAW. 

PECULIARITIES WHICH DISTINGUISH THIS ADMINISTRATIVE DECISION FROM
OTHERS WE HAVE HELD JUDICIALLY REVIEWABLE MUST BE BORNE IN MIND.  THE
HEARINGS QUESTIONED HERE AS TO THEIR FAIRNESS WERE NOT HEARINGS ON
WHICH AN ORDER OF DEPORTATION WAS BASED AND WHICH, UNDER SOME
LIMITATIONS, MAY BE TESTED BY HABEAS CORPUS.  EKIU V. UNITED STATES,
142 U.S. 651.  NEITHER IS THIS A CASE INVOLVING QUESTIONED PERSONAL
STATUS, AS WHETHER ONE IS ELIGIBLE FOR CITIZENSHIP, WHICH WE HAVE HELD
REVIEWABLE UNDER PROCEDURES FOR DECLARATORY JUDGMENT AND INJUNCTION. 
MCGRATH V. KRISTENSEN, 340 U.S. 162.  PETITIONER ADMITTEDLY IS IN THIS
COUNTRY ILLEGALLY AND DOES NOT QUESTION HIS DEPORTABILITY OR THE
VALIDITY OF THE ORDER TO DEPORT HIM.  THE HEARINGS IN QUESTION RELATE
ONLY TO WHETHER CARRYING OUT AN ENTIRELY LEGAL DEPORTATION ORDER IS TO
BE SUSPENDED. 

CONGRESS VESTED IN THE ATTORNEY GENERAL, AND IN HIM ALONE, DISCRETION
AS TO WHETHER TO SUSPEND DEPORTATION UNDER CERTAIN CIRCUMSTANCES.  WE
THINK A REFUSAL TO EXERCISE THAT DISCRETION IS NOT REVIEWABLE ON HABEAS
CORPUS, FIRST, BECAUSE THE NATURE OF THE POWER AND DISCRETION VESTED IN
THE ATTORNEY GENERAL IS ANALOGOUS TO THE POWER OF PARDON OR COMMUTATION
OF A SENTENCE, WHICH WE TRUST NO ONE THINKS IS SUBJECT TO JUDICIAL
CONTROL; AND SECOND, BECAUSE NO LEGAL RIGHT EXISTS IN PETITIONER BY
VIRTUE OF CONSTITUTION, STATUTE OR COMMON LAW TO HAVE A LAWFUL ORDER OF
DEPORTATION SUSPENDED.  EVEN IF PETITIONER PROVES HIMSELF ELIGIBLE FOR
SUSPENSION, THAT GIVES HIM NO RIGHT TO IT AS A MATTER OF LAW BUT MERELY
ESTABLISHES A CONDITION PRECEDENT TO EXERCISE OF DISCRETION BY THE
ATTORNEY GENERAL.  HABEAS CORPUS IS TO ENFORCE LEGAL RIGHTS, NOT TO
TRANSFER TO THE COURTS CONTROL OF EXECUTIVE DISCRETION. 

THE GROUND FOR JUDICIAL INTERFERENCE HERE SEEMS TO BE THAT THE BOARD
OF IMMIGRATION APPEALS DID FIND, OR MAY HAVE FOUND, AGAINST SUSPENSION
ON INSTRUCTIONS FROM THE ATTORNEY GENERAL.  EVEN SO, THIS BOARD IS
NEITHER A JUDICIAL BODY NOR AN INDEPENDENT AGENCY.  IT IS CREATED BY
THE ATTORNEY GENERAL AS PART OF HIS OFFICE, HE NAMES ITS MEMBERS, AND
THEY ARE RESPONSIBLE ONLY TO HIM.  IT OPERATES UNDER HIS SUPERVISION
AND DIRECTION, AND ITS EVERY DECISION IS SUBJECT TO HIS UNLIMITED
REVIEW AND REVISION.  THE REFUSAL TO SUSPEND DEPORTATION, NO MATTER
WHICH SUBORDINATE OFFICER ACTUALLY MAKES IT, IS IN LAW THE ATTORNEY
GENERAL'S DECISION.  WE DO NOT THINK ITS VALIDITY CAN BE IMPEACHED BY
SHOWING THAT HE OVERINFLUENCED MEMBERS OF HIS OWN STAFF WHOSE OPINION
IN ANY EVENT WOULD BE ONLY ADVISORY. 

THE COURT APPEARS TO BE OF THE BELIEF THAT HABEAS CORPUS WILL ISSUE
TO REVIEW A DECISION BY THE BOARD.  IT IS TREATING THE ATTORNEY
GENERAL'S REGULATIONS AS IF THEY VESTED IN THE BOARD FINAL AUTHORITY TO
EXERCISE HIS DISCRETION.  BUT, IN OUR VIEW, THE STATUTE NEITHER
CONTEMPLATES NOR TOLERATES A REDELEGATION OF HIS DISCRETION BY THE
ATTORNEY GENERAL SO AS TO MAKE THE DECISION OF THE BOARD, EVEN IF LEFT
STANDING BY HIM, FINAL IN THE SENSE OF BEING SUBJECT TO JUDICIAL REVIEW
AS THE BOARD'S OWN DECISION.  EVEN THE ATTORNEY GENERAL WAS NOT
ENTRUSTED WITH THIS DISCRETION FREE OF ALL CONGRESSIONAL CONTROL, FOR
CONGRESS SPECIFICALLY REVERSED TO ITSELF POWER TO OVERRULE HIS ACTS OF
GRACE.  54 STAT. 672, 8 U.S.C. (1946) SEC. 155(C), AS AMENDED, 8 U.S.C.
(SUPP. V) SEC. 155(C).  IT OVERTAXES OUR NAIVETE ABOUT POLITICS TO
BELIEVE CONGRESS WOULD ENTRUST THE POWER TO A BOARD WHICH IS NOT THE
CREATURE OF CONGRESS AND WHOSE MEMBERS ARE NOT SUBJECT TO SENATE
CONFIRMATION. 

CASES CHALLENGING DEPORTATION ORDERS, SUCH AS BRIDGES V. WIXON, 326
U.S. 135, WHATEVER THEIR MERITS OR DEMERITS, HAVE NO APPLICATION HERE. 
IN CASES WHERE THE QUESTION IS THE VALIDITY OF A DEPORTATION ORDER,
HABEAS CORPUS WILL ISSUE AT LEAST TO REVIEW JURISDICTIONAL QUESTIONS. 
IN THOSE CASES, ALSO, THE PETITIONER HAS A LEGAL RIGHT TO ASSERT, VIZ.,
A PRIVATE RIGHT NOT TO BE DEPORTED EXCEPT UPON GROUNDS PRESCRIBED BY
CONGRESS.  NEITHER THE VALIDITY OF DEPORTATION NOR A PRIVATE RIGHT IS
INVOLVED HERE. 

OF COURSE, IT MAY BE THOUGHT THAT IT WOULD BE BETTER GOVERNMENT IF
EVEN EXECUTIVE ACTS OF GRACE WERE SUBJECT TO JUDICIAL REVIEW.  BUT THE
PROCESS OF THE COURT SEEMS ADAPTED ONLY TO THE DETERMINATION OF LEGAL
RIGHTS, AND HERE THE DECISION IS THRUSTING UPON THE COURTS THE TASK OF
REVIEWING A DISCRETIONARY AND PURELY EXECUTIVE FUNCTION.  HABEAS
CORPUS, LIKE THE CURRENCY, CAN BE DEBASED BY OVER-ISSUE QUITE AS
CERTAINLY AS BY TOO NIGGARDLY USE.  WE WOULD AFFIRM AND LEAVE THE
RESPONSIBILITY FOR SUSPENSION OR EXECUTION OF THIS DEPORTATION SQUARELY
ON THE ATTORNEY GENERAL, WHERE CONGRESS HAS PUT IT.
..END :















ALABAMA V. TEXAS 347 U.S. 272 


NO. - , ORIGINAL.  ARGUED FEBRUARY 3-4, 1954 - DECIDED MARCH 15, 1954. 


THE MOTIONS OF THE STATES OF ALABAMA AND RHODE ISLAND FOR LEAVE TO
FILE COMPLAINTS CHALLENGING THE CONSTITUTIONALITY OF THE SUBMERGED
LANDS ACT OF 1953, ARE DENIED IN VIEW OF ART. IV, SEC. 3, CL. 2 OF THE
FEDERAL CONSTITUTION AND THE CASES CITED.  PP. 273-274. 

ALABAMA V. TEXAS ET AL. 

ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT.* 

*TOGETHER WITH NO. - , ORIGINAL, RHODE ISLAND V. LOUISIANA ET AL.,
ALSO ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT. 

PER CURIAM. 

THE MOTIONS FOR LEAVE TO FILE THESE COMPLAINTS ARE DENIED.  ARTICLE
IV, SEC. 3, CL. 2, UNITED STATES CONSTITUTION.  UNITED STATES V.
GRATIOT, 14 PET. 526, 537:  THE POWER OF CONGRESS TO DISPOSE OF ANY
KIND OF PROPERTY BELONGING TO THE UNITED STATES "IS VESTED IN CONGRESS
WITHOUT LIMITATION."  UNITED STATES V. MIDWEST OIL COMPANY, 236 U.S.
459, 474: "FOR IT MUST BE BORNE IN MIND THAT CONGRESS NOT ONLY HAS A
LEGISLATIVE POWER OVER THE PUBLIC DOMAIN, BUT IT ALSO EXERCISES THE
POWERS OF THE PROPRIETOR THEREIN.  CONGRESS 'MAY DEAL WITH SUCH LANDS
PRECISELY AS A PRIVATE INDIVIDUAL MAY DEAL WITH HIS FARMING PROPERTY. 
IT MAY SELL OR WITHHOLD THEM FROM SALE.'  CAMFIELD V. UNITED STATES,
167 U.S. 524; LIGHT V. UNITED STATES, 220 U.S. 536."  UNITED STATES V.
SAN FRANCISCO, 310 U.S. 16, 29-30: "ARTICLE 4, SEC. 3, CL. 2 OF THE
CONSTITUTION PROVIDES THAT 'THE CONGRESS SHALL HAVE POWER TO DISPOSE OF
AND MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY AND
OTHER PROPERTY BELONGING TO THE UNITED STATES.'  THE POWER OVER THE
PUBLIC LAND THUS ENTRUSTED TO CONGRESS IS WITHOUT LIMITATIONS.  'AND IT
IS NOT FOR THE COURTS TO SAY HOW THAT TRUST SHALL BE ADMINISTERED. 
THAT IS FOR CONGRESS TO DETERMINE.'"  UNITED STATES V. CALIFORNIA, 332
U.S. 19, 27:  "WE HAVE SAID THAT THE CONSTITUTIONAL POWER OF CONGRESS
(UNDER ARTICLE IV, SEC. 3, CL. 2) IS WITHOUT LIMITATION.  UNITED STATES
V. SAN FRANCISCO, 310 U.S. 16, 29-30." 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE REED, CONCURRING. 

THE PER CURIAM OPINION IN THESE CASES BASES ITS CONCLUSION THAT THE
SUBMERGED LANDS ACT OF 1953, 67 STAT. 29, IS CONSTITUTIONAL ON THE
LANGUAGE IN ART. IV, SEC. 3, OF THE CONSTITUTION:  "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; ...  ."  I AGREE WITH THAT RESULT.  NEITHER ALABAMA NOR RHODE
ISLAND HAS QUESTIONED OR WOULD QUESTION THAT POWER, IF THE
APPLICABILITY OF THAT CLAUSE WERE ACCEPTED. 

THOSE STATES, HOWEVER, DO NOT ACCEPT THE APPLICABILITY OF THE QUOTED
CLAUSE.  IT IS THEIR POSITION THAT THE RESOURCES UNDER THE MARGINAL SEA
DO NOT, UNDER UNITED STATES V. TEXAS, 339 U.S. 707, UNITED STATES V.
LOUISIANA, 339 U.S. 699, AND UNITED STATES V. CALIFORNIA, 332 U.S. 19,
CONSTITUTE PROPERTY EITHER OF THE UNITED STATES OR OF ANY STATE.  THE
COMPLAINANT STATES ASSERT THOSE CASES HELD THAT THE "PARAMOUNT RIGHTS"
IN THE UNITED STATES DECREED BY THIS COURT AROSE FROM THE SOVEREIGNTY
OF THE UNITED STATES AND THE DUTY TO PROVIDE FOR THE COMMON DEFENSE. 
FURTHER, THEY URGE THAT THE RIGHTS ARE HELD IN TRUST FOR ALL THE STATES
AS A FEDERAL RESPONSIBILITY AND TO CEDE THEM TO INDIVIDUAL STATES WOULD
TAKE AWAY THE "EQUAL FOOTING" AMONG STATES BY EXTENDING STATE POWER
INTO THE DOMAIN OF NATIONAL RESPONSIBILITY.  SEE UNITED STATES V.
TEXAS, SUPRA, AT 719, AND COYLE V. OKLAHOMA, 221 U.S. 559. 

THIS COURT IS THE ONLY COURT FOR THE TRIAL AND DISCUSSION OF THE
POINTS UPON WHICH ALABAMA AND RHODE ISLAND RELY.  WE HAVE HEARD
COMPLAINANTS ON ALL THESE POINTS AND I DESIRE TO STATE WHY I THINK THE
ARGUMENTS EXTRACTED BY THE STATES FROM THIS COURT'S RULING AUTHORITIES
ON THESE SAME RIGHTS DO NOT JUSTIFY A HEARING. 

THE FACT THAT ALABAMA AND THE DEFENDANT STATES WERE ADMITTED INTO THE
UNION "UPON THE SAME FOOTING WITH THE ORIGINAL STATES, IN ALL RESPECTS
WHATEVER," 2 STAT. 701, 3 STAT.  489, 5 STAT. 742, 797, 9 STAT. 452,
DOES NOT AFFECT CONGRESS' POWER TO DISPOSE OF FEDERAL PROPERTY.  THE
REQUIREMENT OF EQUAL FOOTING DOES NOT DEMAND THAT COURTS WIPE OUT
DIVERSITIES "IN THE ECONOMIC ASPECTS OF THE SEVERAL STATES," BUT CALLS
FOR "PARITY AS RESPECTS POLITICAL STANDING AND SOVEREIGNTY."  UNITED
STATES V. TEXAS, SUPRA, AT 716.  THE POWER OF CONGRESS TO CEDE PROPERTY
TO ONE STATE WITHOUT CORRESPONDING CESSION TO ALL STATES HAS BEEN
CONSISTENTLY RECOGNIZED.  SEE, E.G., UNITED STATES V. WYOMING, 335 U.S.
895, AND CASES CITED BY THE COURT. 

WHILE THIS COURT DID NOT HOLD IN EXPRESS TERMS IN THE TEXAS,
LOUISIANA AND CALIFORNIA CASES THAT THE AREA IN QUESTION BELONGED TO
THE UNITED STATES AS PROPRIETOR, IT DID HOLD THAT "THE FEDERAL
GOVERNMENT RATHER THAN THE STATE HAS PARAMOUNT RIGHTS IN AND POWER OVER
THAT BELT, AN INCIDENT TO WHICH IS FULL DOMINION OVER THE RESOURCES OF
THE SOIL UNDER THAT WATER AREA, INCLUDING OIL."  332 U.S., AT 38-39. 
THIS INCIDENT IS A PROPERTY RIGHT AND CONGRESS HAD UNLIMITED POWER TO
DISPOSE OF IT. 

IF THE MARGINAL LANDS WERE THUS DECLARED BY THE CALIFORNIA AND
FOLLOWING CASES TO BELONG TO THE UNITED STATES, THEY WERE CEDED TO THE
STATES THROUGH THE SUBSEQUENT SUBMERGED LANDS ACT OF 1953 BY THE
CLAUSE:  "TITLE TO AND OWNERSHIP OF THE LANDS BENEATH NAVIGABLE WATERS
WITHIN THE BOUNDARIES OF THE RESPECTIVE STATES, AND THE NATURAL
RESOURCES WITHIN SUCH LANDS AND WATERS  ...  ARE HEREBY  ...
RECOGNIZED, CONFIRMED, ESTABLISHED, AND VESTED IN AND ASSIGNED TO THE
RESPECTIVE STATES  ...  ."  SEC. 3(A).  IF, ON THE OTHER HAND, THE
MARGINAL LANDS WERE NOT DECLARED BY THOSE CASES TO BELONG TO THE UNITED
STATES, TITLE TO THEM REMAINED IN THE RESPECTIVE STATES.  EITHER BY
ORIGINAL OWNERSHIP OR BY THE CESSION OF THE ACT, THE LANDS ARE NOW THE
PROPERTY OF THE RESPECTIVE STATES.  THE USE OR CONTROL OF THE UNDERSEA
AREA AND ITS RESOURCES BY THE RESPECTIVE STATES CANNOT, THEREFORE, NOW
BE CHALLENGED BY ANY OTHER STATE ON THE GROUND OF LACK OF SOVEREIGNTY
IN THE CHALLENGED STATE. 

THE CESSION CHALLENGED HERE DOES NOT AFFECT THE POWER AND
RESPONSIBILITY OF THE UNITED STATES AS SOVEREIGN TO FOSTER AND PROTECT
AGAINST FOREIGN AND DOMESTIC ENEMIES THAT AREA OR RESOURCES CEDED TO
THE PROPRIETORSHIP OF THE RESPECTIVE STATES.  THE FEDERAL GOVERNMENT,
OF COURSE, OWES THE SAME DUTY TO THE UNDERSEA AREA THAT IT DOES TO THE
UPLANDS, THE TIDELANDS OR THE BEDS OF THE INLAND WATERS.  MOREOVER, THE
SUBMERGED LANDS ACT PURPORTS TO CONVEY TO THE STATES ONLY "THE LANDS
BENEATH NAVIGABLE WATERS" AND "THE NATURAL RESOURCES WITHIN SUCH LANDS
AND WATERS" AND EXPRESSLY PROVIDES THAT "THE UNITED STATES RETAINS ALL
ITS NAVIGATIONAL SERVITUDE AND RIGHTS IN AND POWERS OF REGULATION AND
CONTROL OF SAID LANDS AND NAVIGABLE WATERS FOR THE CONSTITUTIONAL
PURPOSES OF COMMERCE, NAVIGATION, NATIONAL DEFENSE, AND INTERNATIONAL
AFFAIRS, ALL OF WHICH SHALL BE PARAMOUNT TO, BUT SHALL NOT BE DEEMED TO
INCLUDE, PROPRIETARY RIGHTS OF OWNERSHIP, OR THE RIGHTS OF MANAGEMENT,
ADMINISTRATION, LEASING, USE, AND DEVELOPMENT OF THE LANDS AND NATURAL
RESOURCES WHICH ARE SPECIFICALLY RECOGNIZED, CONFIRMED, ESTABLISHED,
AND VESTED IN AND ASSIGNED TO THE RESPECTIVE STATES AND OTHERS BY
ANY CONTENTION THAT THE ACT EMPOWERS INDIVIDUAL STATES TO ALTER THE
HISTORIC RELATIONSHIP OF THE STATES RESPECTING NAVIGATION OF THE
OCEAN.  SEE KELLY V. WASHINGTON, 302 U.S. 1; CF. TOOMER V. WITSELL, 334
U.S. 385. 

THE UNITED STATES HOLDS RESOURCES AND TERRITORY IN TRUST FOR ITS
CITIZENS IN ONE SENSE, BUT NOT IN THE SENSE THAT A PRIVATE TRUSTEE
HOLDS FOR A CESTUI QUE TRUST.  THE RESPONSIBILITY OF CONGRESS IS TO
UTILIZE THE ASSETS THAT COME INTO ITS HANDS AS SOVEREIGN IN THE WAY
THAT IT DECIDES IS BEST FOR THE FUTURE OF THE NATION.  THAT IS WHAT IT
HAS DONE HERE.  SUCH CONGRESSIONAL DETERMINATION AS THE LEGISLATION
HERE IN QUESTION IS NOT SUBJECT TO JUDICIAL REVIEW. 

MR. JUSTICE BLACK, DISSENTING. 

ALABAMA AND RHODE ISLAND ASKED LEAVE TO FILE COMPLAINTS TO CHALLENGE
AN ACT OF CONGRESS WHICH PURPORTS TO CONVEY TO SOME OF THE STATES AN
INDEFEASIBLE TITLE TO AND OWNERSHIP OF SOIL UNDER THE GULF OF MEXICO
AND THE ATLANTIC AND PACIFIC OCEANS.  THE ACT INCLUDES A SIMILAR GIFT
OF ALL THE "NATURAL RESOURCES WITHIN SUCH LANDS AND WATERS."  SOME
STATES ARE GIVEN A THREE-MILE STRIP OF OCEAN; SOME STATES ARE GIVEN
ABOUT TEN MILES; MOST STATES ARE GIVEN NO OCEAN AT ALL.  SOME STATES
THAT ARE THUS RECEIVING GIFTS CLAIM EVEN MORE.  LOUISIANA BY LAW MAKES
CLAIMS EXTENDING 30 MILES INTO THE GULF OF MEXICO.  TEXAS, IT IS SAID,
CLAIMS THAT AT SOME POINTS ITS STATE BORDERS PROJECT AS FAR AS 150
MILES INTO THE GULF.  IF CONGRESS CAN CEDE THREE MILES OF OCEAN I SEE
NO REASON WHY IT COULD NOT LATER CEDE 150 MILES OR MORE. 

ALABAMA AND RHODE ISLAND DENY THAT CONGRESS HAS ANY POWER TO DISPOSE
OF THE NATIONAL INTEREST IN THE OCEAN OR ITS UNCAPTURED RESOURCES. 
THESE STATES ASSERT THAT WHATEVER POWER THE UNITED STATES HAS OVER THE
OCEAN IS AN INSEPARABLE PART OF NATIONAL SOVEREIGNTY WHICH CANNOT BE
IRREVOCABLY PARCELLED OUT OR DELEGATED TO STATES, INDIVIDUALS OR
PRIVATE BUSINESS GROUPS.  ADMITTING THE POWER OF CONGRESS TO CONTROL
AND REGULATE THE USE OF THE OCEAN AND THE CAPTURING OF ITS ASSETS,
ALABAMA AND RHODE ISLAND DENY THAT ANY PART OF THIS SOVEREIGN NATIONAL
CONTROL CAN BE VESTED IN ANY STATE.  SUCH AN UNAUTHORIZED ABDICATION OF
ESSENTIAL NATIONAL SOVEREIGNTY, SO THE TWO STATES URGE, IS PRECISELY
THE EFFECT OF THE CHALLENGED ACT.  IF TRUE, THIS SUBJECTION OF ALABAMA
AND RHODE ISLAND TO REGULATION BY OTHER STATES DEPRIVES THEM OF THAT
"EQUAL FOOTING" AS STATES WHICH IS THEIRS BY RIGHT.  UNITED STATES V.
TEXAS, 339 U.S. 707, 719.  THE COURT, HOWEVER, SUMMARILY DENIES ALABAMA
AND RHODE ISLAND A RIGHT EVEN TO FILE THEIR COMPLAINT.  THIS I ASSUME
MUST BE DONE ON THE GROUND THAT THE CLAIMS THEY PRESENT ARE SO CLEARLY
WITHOUT MERIT AS TO BE FRIVOLOUS.  I AM UNABLE TO AGREE TO THIS AND
WOULD GRANT LEAVE TO FILE IN ORDER THAT THE CASE MIGHT BE CONSIDERED IN
THE USUAL MANNER.  MY REASONS CAN BE BRIEFLY STATED. 

OCEAN WATERS ARE THE HIGHWAYS OF THE WORLD.  THEY ARE NO LESS SUCH
BECAUSE THEY HAPPEN TO LAP THE SHORES OF DIFFERENT NATIONS THAT BORDER
THEM.  FREEDOM OF THE SEAS EVERYWHERE IS ESSENTIAL TO TRADE, COMMERCE,
TRAVEL AND COMMUNICATION AMONG THE NATIONS.  THESE FAR-FLUNG
INTERNATIONAL ACTIVITIES HAVE FREQUENTLY LED TO CONFLICT AND WAR.  THE
WAR OF 1812 BEARS WITNESS TO THIS.  IN OCEAN WATERS BORDERING OUR
COUNTRY, IF NOWHERE ELSE, DAY-TO-DAY NATIONAL POWER - COMPLETE,
UNDIVIDED, FLEXIBLE, AND IMMEDIATELY AVAILABLE - IS AN ESSENTIAL
ATTRIBUTE OF FEDERAL SOVEREIGNTY.  THE PRESENT ACT MIGHT BE CONSTRUED
IN SUCH WAY THAT THIS POWER WOULD NOT BE SUBSTANTIALLY IMPAIRED,
WEAKENED OR MADE LESS EASILY AVAILABLE AT ALL TIMES.  BUT THE COURT IS
NOT CONSTRUING IT THAT WAY. 

THE ACT'S LANGUAGE PURPORTS TO CONVEY "ALL RIGHT, TITLE, AND INTEREST
OF THE UNITED STATES" TO IMMENSE OCEAN AREAS AS THOUGH THE OCEAN COULD
BE DIVIDED UP AND SOLD LIKE TOWN LOTS.  IF VALID, THE ACT GRANTS TO
STATES ALL "PROPRIETARY RIGHTS OF OWNERSHIP, OR THE RIGHTS OF
MANAGEMENT, ADMINISTRATION, LEASING, USE, AND DEVELOPMENT OF THE LANDS
AND NATURAL RESOURCES" OF THE OCEAN.  THE RESULT IS THAT SOME FAVORED
STATES CAN SAY HOW, WHEN, FOR WHAT PURPOSES AND TO WHAT EXTENT OTHER
STATES AND THEIR CITIZENS MAY USE THE OCEAN OR ITS RESOURCES.  THIS
RAISES SERIOUS AND DIFFICULT QUESTIONS WITH RESPECT TO THE AUTHORITY OF
CONGRESS TO RELINQUISH ELEMENTS OF NATIONAL SOVEREIGNTY OVER THE
OCEAN. 

ONCE PRIVATE PROPERTY RIGHTS IN OCEAN WATERS ARE RECOGNIZED, I AM
UNCERTAIN WHERE LINES CAN BE DRAWN.  THE COURT'S DECISION TODAY IN
FEDERAL POWER COMMISSION V. NIAGARA MOHAWK POWER CORP., ANTE, P. 239,
GOES A LONG WAY TOWARD PARTITIONING UP THE RUNNING RIVERS OF AMERICA
INTO CONCEPTUALISTIC SEGMENTS.  (FN1)  UNDER THAT CASE THE GOVERNMENT
IS LIKELY TO HAVE TO PAY LARGE SUMS IF IT WISHES TO USE ITS RIVERS. 
MR. JUSTICE DOUGLAS' DISSENT IN THE NIAGARA MOHAWK CASE SHOULD WARN US
TO BEWARE OF EXTENDING THE CONCEPT OF STATE OWNERSHIP OF LAND UNDER
INLAND STREAMS TO THE VAST OCEAN AREAS OF THE WORLD.  (FN2)  THE
RESULTS IN THAT CASE ARE IN MY VIEW BAD ENOUGH.  BUT IT COULD BE FAR
WORSE TO PERMIT AGENCIES OTHER THAN THE UNITED STATES TO CLUTTER UP THE
OCEAN WITH MULTITUDINOUS WELLS AND DERRICKS AND DEEDS AND LEASES AND
TIME-CONSUMING LAWSUITS.  ALL OF THESE THINGS SUGGEST SOME OF THE
DANGERS OF DEPRIVING THE UNITED STATES OF COMPLETE, UNHAMPERED CONTROL
OF THE OCEAN BORDERING OUR NATION.  WE SHOULD NOT FORGET THAT THE OCEAN
"BELONGS TO NO ONE NATION, BUT IS THE COMMON PROPERTY OF ALL."  LORD V.
STEAMSHIP CO., 102 U.S. 541, 544.  (FN3) 

THE CONSTITUTION DOES GIVE CONGRESS POWER TO DISPOSE OF AND REGULATE
"TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES."  THIS
POWER, WHERE IT APPLIES, HAS BEEN DECLARED TO BE UNLIMITED.  CONGRESS,
THE COURT HAS SAID, "MAY DEAL WITH SUCH LANDS PRECISELY AS A PRIVATE
INDIVIDUAL MAY DEAL WITH HIS FARMING PROPERTY."  CAMFIELD V. UNITED
STATES, 167 U.S. 518, 524.  OF COURSE, THIS AUTHORIZES CONGRESS AT WILL
TO SELL OR DISPOSE OF PROPERTY IT OWNS AS PROPERTY.  IT COULD PRODUCE
OIL FROM THE OCEAN AND SELL THAT PROPERTY.  IT COULD HAVE THAT OIL
PRODUCED BY ITS AGENTS.  BUT I HAVE DIFFICULTY IN BELIEVING THAT ANY
STATE CAN BE GRANTED POWER UNDER OUR CONSTITUTION TO EXACT TRIBUTE FROM
ANY OTHER STATE THAT WANTS TO TAKE OIL OR FISH FROM THE OCEAN WHICH IS
THE COMMON "PROPERTY" OF ALL.  AND I HAVE TROUBLE ALSO IN THINKING
CONGRESS COULD SELL OR GIVE AWAY THE ATLANTIC OR PACIFIC OCEAN.  IF IT
CAN TREAT THOSE OCEANS AS "TERRITORY" WITHIN THE CONSTITUTION'S
MEANING, WHY COULD IT NOT DEED AWAY THOUSANDS OF MILES OF THE ATLANTIC
OR PACIFIC AT WILL?  I SUPPOSE NO ONE WOULD SAY THAT THE CONSTITUTION
PERMITS CONGRESS TO CREATE NEW STATES AT LEAST IN PART OUT OF SUBMERGED
LANDS WITH STATE POWER TO GOVERN AND RULE OVER THE "TERRITORY" SO
DISPOSED OF. WOULD THIS COURT SUSTAIN THE POWER OF CONGRESS TO SELL THE
MISSISSIPPI OR ANY OF THE OTHER GREAT NAVIGABLE RIVERS OF THIS
COUNTRY?  THE COURT'S DECISIONS HERE AND IN THE NIAGARA MOHAWK CASE
LEAVE ME IN DOUBT. 

THE ISSUES PRESENTED ARE TOO GRAVE AND TOO DOUBTFUL FOR ME TO ASSENT
TO CLOSING THE DOORS OF THIS COURT TO THESE STATES WITHOUT A MORE
CAREFUL CONSIDERATION OF THE QUESTION THAN THE COURT HAS AFFORDED.  FOR
THERE IS A GREAT DEAL MORE INVOLVED THAN WHO GETS WHAT OIL.  CONGRESS
HAS HERE TRANSFERRED TO THE STATES SUBSTANTIAL POWER OVER THE OCEAN. 
THIS NECESSARILY MAKES LESS READILY AVAILABLE THE NATION'S POWER TO
PROTECT THE FREEDOM OF THE SEAS - A POWER ESSENTIAL TO KEEP PEACE AND
FRIENDSHIP AMONG THE NATIONS OF THE WORLD.  I CANNOT AGREE TO DENY
THESE STATES A FULL OPPORTUNITY TO CHALLENGE THE ACT. 

FN1  THIS COURT HAS REFERRED TO OWNERSHIP OF SUBMERGED LANDS UNDER
NAVIGABLE STREAMS AS "THEORETICAL OWNERSHIP AND DOMINION," "A QUALIFIED
TITLE," AND "A BARE TECHNICAL TITLE."  SCRANTON V. WHEELER, 179 U.S.
141, 160, 163.  SEE ALSO UNITED STATES V. COMMODORE PARK, INC., 324
U.S. 386, 390. 

FN2  SEE UNITED STATES V. CALIFORNIA, 332 U.S. 19, 36. 

FN3  IT IS TRUE THAT THE ACT DOES PURPORT TO RESERVE FOR THE UNITED
STATES "ALL ITS NAVIGATIONAL SERVITUDE AND RIGHTS IN AND POWERS OF
REGULATION AND CONTROL  ...  FOR THE CONSTITUTIONAL PURPOSES OF
COMMERCE, NAVIGATION, NATIONAL DEFENSE, AND INTERNATIONAL AFFAIRS  ...
."  BUT SURELY THIS RESERVES NOTHING THAT CONGRESS COULD GIVE AWAY. 
ANY ATTEMPT TO RELINQUISH THE NATIONAL GOVERNMENT'S POWER OVER THE
OCEAN TO THAT EXTENT WOULD IGNORE THE FACT THAT "NAVIGATION ON THE HIGH
SEAS IS NECESSARILY NATIONAL IN ITS CHARACTER.  SUCH NAVIGATION IS
CLEARLY A MATTER OF 'EXTERNAL CONCERN,' AFFECTING THE NATION AS A
NATION IN ITS EXTERNAL AFFAIRS.  IT MUST, THEREFORE, BE SUBJECT TO THE
NATIONAL GOVERNMENT."  LORD V. STEAMSHIP CO., 102 U.S. 541, 544. 

MR. JUSTICE DOUGLAS, DISSENTING. 

CALIFORNIA LOST HER CLAIM TO THE SEA BEYOND THE LOW-WATER MARK BY A
SIX-TO-TWO DECISION.  UNITED STATES V. CALIFORNIA, 332 U.S. 19.  THEN
CAME A CHANGE IN THE COURT'S MEMBERSHIP; AND TEXAS LOST HER CLAIM TO
THE MARGINAL SEA BY A FOUR-TO-THREE DECISION.  UNITED STATES V. TEXAS,
339 U.S. 707.  ONLY THREE OF THE MAJORITY THAT DECIDED THOSE CASES
SURVIVE.  IT WOULD THEREFORE BE QUITE UNDERSTANDABLE IF A MAJORITY OF
THE PRESENT COURT WERE TO TAKE THE POSITION OF THE EARLIER MINORITY AND
OVERRULE THOSE DECISIONS.  BUT IF THOSE DECISIONS ARE TO STAND, IT IS
INCONCEIVABLE TO ME THAT WE CAN DENY LEAVE TO FILE THE COMPLAINTS IN
THE PRESENT CASES.  TO DENY THESE MOTIONS WE MUST HOLD THAT THE ISSUES
TENDERED ARE FRIVOLOUS AND INSUBSTANTIAL.  BUT IF THE EARLIER DECISIONS
ARE TO STAND, CERTAINLY THAT CANNOT BE SAID. 

IF THE ISSUE BEFORE US WERE ONLY THE POWER OF CONGRESS TO DISPOSE OF
PUBLIC LANDS, THE CLAIMS OF ALABAMA AND RHODE ISLAND WOULD BE
FORECLOSED BY ART. IV, SEC. 3 OF THE CONSTITUTION.  BUT THE ENTIRE
POINT OF THE EARLIER LITIGATION IN THE CALIFORNIA AND TEXAS CASES WAS
THAT MORE THAN PROPERTY RIGHTS WAS INVOLVED.  AS WE SAID IN UNITED
STATES V. TEXAS, SUPRA, P. 719, "ONCE LOW-WATER MARK IS PASSED THE
INTERNATIONAL DOMAIN IS REACHED.  PROPERTY RIGHTS MUST THEN BE SO
SUBORDINATED TO POLITICAL RIGHTS AS IN SUBSTANCE TO COALESCE AND UNITE
IN THE NATIONAL SOVEREIGN."  ANY "PROPERTY INTERESTS" WHICH THE STATES
MAY EARLIER HAVE HELD IN THE BED OF THE MARGINAL SEA WERE "SO
SUBORDINATED TO THE RIGHTS OF SOVEREIGNTY AS TO FOLLOW SOVEREIGNTY." 
ID. 

THUS WE ARE DEALING HERE WITH INCIDENTS OF NATIONAL SOVEREIGNTY.  THE
MARGINAL SEA IS NOT AN OIL WELL; IT IS MORE THAN A MASS OF WATER; IT IS
A PROTECTIVE BELT FOR THE ENTIRE NATION OVER WHICH THE UNITED STATES
MUST EXERCISE EXCLUSIVE AND PARAMOUNT AUTHORITY.  THE AUTHORITY OVER IT
CAN NO MORE BE ABDICATED THAN ANY OF THE OTHER GREAT POWERS OF THE
FEDERAL GOVERNMENT.  IT IS TO BE EXERCISED FOR THE BENEFIT OF THE
WHOLE.  AS MR. JUSTICE BLACK APTLY STATES IN HIS DISSENT IN THESE
CASES, "IN OCEAN WATERS BORDERING OUR COUNTRY, IF NOWHERE ELSE, DAY-TO
DAY NATIONAL POWER - COMPLETE, UNDIVIDED, FLEXIBLE, AND IMMEDIATELY
AVAILABLE - IS AN ESSENTIAL ATTRIBUTE OF FEDERAL SOVEREIGNTY." 

COULD CONGRESS CEDE THE GREAT COLUMBIA RIVER OR THE MIGHTY
MISSISSIPPI TO A STATE OR A POWER COMPANY?  I SHOULD THINK NOT.  FOR
THEY ARE ARTERIES OF COMMERCE THAT ATTACH TO THE NATIONAL SOVEREIGNTY
AND REMAIN THERE UNTIL AND UNLESS THE CONSTITUTION IS CHANGED.  WHAT IS
TRUE OF A GREAT RIVER WOULD SEEM TO BE EVEN MORE OBVIOUSLY TRUE OF THE
MARGINAL SEA.  FOR IT IS NOT ONLY AN ARTERY OF COMMERCE AMONG THE
STATES BUT THE VAST BUFFER STANDING BETWEEN US AND THE WORLD.  IT
THEREFORE WOULD SEEM THAT UNLESS WE ARE TO CHANGE OUR FORM OF
GOVERNMENT, THAT DOMAIN MUST BY ITS VERY NATURE ATTACH TO THE NATIONAL
GOVERNMENT AND THE AUTHORITY OVER IT REMAIN NONDELEGABLE. 

IT IS SAID, HOWEVER, THAT THE INTERESTS IN THE MARGINAL SEA MAY BE
CHOPPED UP, THE STATES BEING GRANTED THE ECONOMIC ONES AND THE FEDERAL
GOVERNMENT KEEPING THE POLITICAL ONES.  WE REJECTED, HOWEVER, THAT
PRECISE CLAIM IN THE EARLIER CASES.  WE SAID, FOR EXAMPLE, THAT THE
"EQUAL FOOTING" CLAUSE IN THE JOINT RESOLUTION ADMITTING TEXAS TO THE
UNION PRECLUDED THE ARGUMENT THAT TEXAS SURRENDERED ONLY POLITICAL
RIGHTS OVER THE MARGINAL SEA AND RETAINED ALL PROPERTY RIGHTS IN IT.
339 U.S., AT 716-720. 

IF IT WERE NECESSARY FOR TEXAS TO SURRENDER ALL HER PROPERTY AND
POLITICAL RIGHTS IN THE MARGINAL SEA IN ORDER TO ENTER THE UNION ON AN
"EQUAL FOOTING" WITH THE OTHER STATES, PRAY HOW CAN SHE GET BACK SOME
OF THOSE RIGHTS AND STILL REMAIN ON AN "EQUAL FOOTING" WITH THE OTHER
STATES?  THAT IS THE UNRESOLVED QUESTION IN THESE CASES.  THAT IS THE
QUESTION WHICH POINTS UP THE GRIEVANCES OF ALABAMA AND RHODE ISLAND. 
FOR WHAT TEXAS (AND A FEW OTHER STATES) OBTAIN BY THE PRESENT ACT OF
CONGRESS IS WHAT WE HELD THE "EQUAL FOOTING" CLAUSE FORBADE THEM TO
RETAIN.  THE "EQUAL FOOTING" CLAUSE, IN OTHER WORDS, PREVENTS ONE STATE
FROM LAYING CLAIM TO A PART OF THE NATIONAL DOMAIN FROM WHICH THE OTHER
STATES ARE EXCLUDED.  339 U.S., AT 719-720.  TODAY WE PERMIT THAT
PRECISE "INEQUALITY AMONG THE STATES" WHICH WE EARLIER SAID WAS
PRECLUDED BY THE "EQUAL FOOTING" CLAUSE. 

ALABAMA AND RHODE ISLAND CAN JUSTLY COMPLAIN.  SO CAN THE OTHER
STATES.  OUR UNION IS ONE OF EQUAL SOVEREIGNS, NONE ENTITLED TO
PREFERMENT DENIED THE OTHERS.  THAT IS WHAT THE "EQUAL FOOTING"
STANDARD MEANS OR IT MEANS NOTHING.  TODAY POWERFUL POLITICAL FORCES
ARE MARSHALLED TO WIPE OUT OUR PRIOR DECISIONS FOR THE BENEFIT OF A
FAVORED FEW.  BUT THOSE DECISIONS WERE SOUND IN CONSTITUTIONAL THEORY
AND THEY SHOULD STAND.  IF THEY PRESENTED A QUESTION SUITABLE FOR
JUDICIAL REVIEW, SO DOES THE PRESENT CONTROVERSY. 
..END :





UNITED STATES V. BINGHAMTON CONSTRUCTION CO., INC. 347 U.S. 171 


NO. 65.  ARGUED DECEMBER 1, 1953 - DECIDED MARCH 8, 1954 - 123 CT. CL.
804, 107 F. SUPP. 712, REVERSED IN PART. 


THE SCHEDULE OF MINIMUM WAGE RATES INCLUDED IN A GOVERNMENT
CONSTRUCTION CONTRACT, AS REQUIRED BY THE DAVIS-BACON ACT, 40 U.S.C.
(1946 ED.)  SEC.  276A, IS NOT A REPRESENTATION OR WARRANTY BY THE
GOVERNMENT TO THE CONTRACTOR AS TO THE WAGE RATES PREVAILING IN THE
CONTRACT AREA; AND THE SECRETARY OF LABOR'S ACTION IN PRESCRIBING
MINIMUM WAGE RATES LOWER THAN THOSE ACTUALLY PREVAILING IN THE AREA
WHEN BIDS WERE INVITED ON A CONSTRUCTION PROJECT DOES NOT GIVE THE
CONTRACTOR A VALID CLAIM AGAINST THE GOVERNMENT.  PP. 172-178. 

(A)  THE PURPOSE OF THE ACT WAS NOT TO BENEFIT CONTRACTORS BUT TO
PROTECT THEIR EMPLOYEES FROM SUBSTANDARD EARNINGS BY FIXING A FLOOR
UNDER WAGES ON GOVERNMENT PROJECTS.  PP. 176-177. 

(B)  THE REQUIREMENT OF THE ACT AND THE CONTRACT THEREUNDER THAT THE
CONTRACTORS PAY WAGES AT RATES "NOT LESS THAN" THOSE SPECIFIED IS NO
ASSURANCE THAT THEY WILL NOT HAVE TO PAY MORE.  PP. 177-178. 

(C)  THAT THE ACT REQUIRES THE MINIMUM WAGE RATES SPECIFIED IN
GOVERNMENT CONTRACTS TO BE "BASED UPON  ...  THE WAGES  ...  DETERMINED
BY THE SECRETARY OF LABOR TO BE PREVAILING" IN THE AREA WHERE THE WORK
IS TO BE PERFORMED DOES NOT REQUIRE A DIFFERENT RESULT.  PP. 177-178. 

UNITED STATES V. BINGHAMTON CONSTRUCTION CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

THE COURT OF CLAIMS AWARDED RESPONDENT A RECOVERY BASED ON THE
DIFFERENCE BETWEEN THE MINIMUM WAGE RATES SPECIFIED UNDER 40 U.S.C.
(1946 ED.)  SEC.  276A IN RESPONDENT'S CONTRACT WITH THE GOVERNMENT AND
HIGHER RATES SPECIFIED IN A DETERMINATION BY THE SECRETARY OF LABOR FOR
THE FEDERAL WORKS AGENCY.  123 CT. CL. 804, 107 F. SUPP. 712.  THIS
COURT GRANTED CERTIORARI.  346 U.S. 809.  REVERSED AS TO THIS POINT, P.
178. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS BEFORE US ON WRIT OF CERTIORARI TO THE COURT OF CLAIMS. 
THE QUESTION PRESENTED IS WHETHER THE SCHEDULE OF MINIMUM WAGE RATES
INCLUDED IN A GOVERNMENT CONSTRUCTION CONTRACT, AS REQUIRED BY THE
DAVIS-BACON ACT, (FN1) IS A REPRESENTATION OR WARRANTY AS TO THE
PREVAILING WAGE RATES IN THE CONTRACT AREA.  WE HOLD THAT IT IS NOT. 

THE DAVIS-BACON ACT REQUIRES THAT THE WAGES OF WORKMEN ON A
GOVERNMENT CONSTRUCTION PROJECT SHALL BE "NOT LESS" THAN THE "MINIMUM
WAGES" SPECIFIED IN A SCHEDULE FURNISHED BY THE SECRETARY OF LABOR. 
THE SCHEDULE "SHALL BE BASED UPON THE WAGES THAT WILL BE DETERMINED BY
THE SECRETARY OF LABOR TO BE PREVAILING" FOR CORRESPONDING WORK ON
SIMILAR PROJECTS IN THE AREA.  (FN2)  THE ACT ALSO PROVIDES FOR
PENALTIES, INCLUDING TERMINATION OF THE CONTRACT, IF IT IS FOUND THAT
THE CONTRACTOR IS PAYING LESS THAN THE SCHEDULE RATE.  (FN3) 

THE RESPONDENT, A CONSTRUCTION COMPANY, WAS THE SUCCESSFUL BIDDER FOR
A GOVERNMENT FLOOD CONTROL PROJECT ON THE CHEMUNG RIVER AT ELMIRA, NEW
YORK.  ON JANUARY 31, 1941, AT THE REQUEST OF THE CORPS OF ENGINEERS,
THE SECRETARY OF LABOR SUBMITTED A SCHEDULE OF MINIMUM WAGES FOR THE
PROJECT.  THIS SCHEDULE SET THE MINIMUM HOURLY WAGE RATE AT $1.00 FOR
CARPENTERS AND $.50 FOR LABORERS.  ON MARCH 29, 1941, THE CORPS OF
ENGINEERS ISSUED AN INVITATION FOR BIDS.  (FN4)  PURSUANT TO THE DAVIS
BACON ACT, SUPRA, THE SECRETARY'S WAGE SCHEDULE WAS INCLUDED IN THE
CONTRACT SPECIFICATIONS FURNISHED TO RESPONDENT, PRIOR TO THE
COMPUTATION OF ITS BID.  (FN5)  ON MAY 14, 1941, RESPONDENT'S BID OF
$232,669.30 WAS ACCEPTED AND A WRITTEN CONTRACT WAS EXECUTED,
INCORPORATING THE SPECIFICATIONS AND SUBJECT ONLY TO FORMAL APPROVAL BY
THE GOVERNMENT.  THE CONTRACT PROVIDED THAT RESPONDENT WAS TO PAY WAGES
"NOT LESS THAN THOSE STATED IN THE SPECIFICATIONS  ...  "; FOR BREACH
OF THIS PROVISION, THE GOVERNMENT WAS AUTHORIZED TO TERMINATE THE
CONTRACT.  (FN6)  ON JUNE 3, 1941, THE CONTRACT WAS FORMALLY APPROVED;
AND ON JUNE 5, 1941, RESPONDENT RECEIVED NOTICE TO PROCEED WITH THE
WORK. 

ON OCTOBER 22, 1940, THE LOCAL CARPENTERS' UNION HAD NOTIFIED THE
CONTRACTING OFFICER THAT THE HOURLY WAGE SCALE FOR CARPENTERS WOULD BE
INCREASED FROM $1.00 TO $1.125 AS OF JANUARY 1, 1941.  ON MARCH 4,
1941, SOME THREE WEEKS PRIOR TO THE INVITATION FOR BIDS ON THE PROJECT
INVOLVED HERE, THE SECRETARY OF LABOR HAD FURNISHED ANOTHER GOVERNMENT
AGENCY, THE FEDERAL WORKS AGENCY, A SCHEDULE OF MINIMUM WAGES FOR
INCLUSION IN THE SPECIFICATIONS FOR A FEDERAL HOUSING PROJECT IN
ELMIRA.  THIS SCHEDULE SET THE MINIMUM HOURLY WAGE RATE AT $1.125 FOR
CARPENTERS AND $.55 FOR LABORERS.  ON APRIL 1, 1941, THE UNION HOURLY
RATE FOR LABORERS WAS INCREASED FROM $.55 TO $.625. 

IN THE PERFORMANCE OF THE CONTRACT, RESPONDENT PAID THE UNION RATES
THEN IN EFFECT - $1.125 FOR CARPENTERS AND $.625 FOR LABORERS.  ON JUNE
15, 1941, RESPONDENT PROTESTED TO THE CONTRACTING OFFICER THAT IT WAS
UNABLE TO OBTAIN WORKMEN AT THE RATES SPECIFIED IN THE CONTRACT
SCHEDULE AND DEMANDED AN ADJUSTMENT OF COMPENSATION, ON THE THEORY THAT
THE SCHEDULE WAS AN AFFIRMATIVE REPRESENTATION AS TO THE PREVAILING
WAGE RATES IN THE AREA AND THAT RESPONDENT WAS ENTITLED TO RELY ON THIS
REPRESENTATION IN THE COMPUTATION OF ITS BID.  THE CONTRACTING OFFICER
DENIED RELIEF AND THE CHIEF OF ENGINEERS DISMISSED RESPONDENT'S
APPEAL.  (FN7) 

RESPONDENT THEREUPON BROUGHT THIS ACTION IN THE COURT OF CLAIMS,
SEEKING DAMAGES FOR THE ALLEGED MISREPRESENTATION AS WELL AS OTHER
RELIEF.  THE COURT SPECIFICALLY FOUND THAT AN INVESTIGATION BY
RESPONDENT WOULD HAVE REVEALED THAT THE PREVAILING RATES WERE HIGHER
THAN THE RATES SPECIFIED IN THE SCHEDULE.  (FN8)  NEVERTHELESS, IT
ALLOWED RESPONDENT A RECOVERY OF $7,363.22, CONSISTING OF THE
DIFFERENCE BETWEEN THE RATES SPECIFIED IN THE CONTRACT SCHEDULE ($1.00
FOR CARPENTERS AND $.50 FOR LABORERS) AND THE RATES SPECIFIED IN THE
SECRETARY OF LABOR'S DETERMINATION FOR THE FEDERAL WORKS AGENCY ($1.125
FOR CARPENTERS AND $.55 FOR LABORERS).  (FN9)  THE COURT HELD THAT THE
CONTRACT SCHEDULE MISREPRESENTED - ALTHOUGH INADVERTENTLY - THE
PREVAILING WAGE RATE IN THE ELMIRA AREA, SINCE, PRIOR TO THE INVITATION
TO BID, THE SECRETARY OF LABOR HAD MADE A HIGHER DETERMINATION AND THE
CONTRACTING OFFICER COULD HAVE ASCERTAINED THAT FACT.  RESPONDENT, THE
COURT HELD, WAS ENTITLED TO RELY ON THE SCHEDULE "AS THE SECRETARY'S
LATEST DETERMIANTION - AS A REPRESENTATION OF THE WAGES IT WOULD HAVE
TO PAY WHEN THE WORK WAS TO BE DONE."  (FN10)  WE GRANTED REVIEW (FN11)
BECAUSE OF THE OBVIOUS IMPORTANCE OF THE DECISION IN THE ADMINISTRATION
OF THE DAVIS-BACON ACT. 

THE ACT ITSELF CONFERS NO LITIGABLE RIGHTS ON A BIDDER FOR A
GOVERNMENT CONSTRUCTION CONTRACT.  (FN12)  THE LANGUAGE OF THE ACT AND
ITS LEGISLATIVE HISTORY PLAINLY SHOW THAT IT WAS NOT ENACTED TO BENEFIT
CONTRACTORS, BUT RATHER TO PROTECT THEIR EMPLOYEES FROM SUBSTANDARD
EARNINGS BY FIXING A FLOOR UNDER WAGES ON GOVERNMENT PROJECTS.  (FN13)
CONGRESS SOUGHT TO ACCOMPLISH THIS RESULT BY DIRECTING THE SECRETARY OF
LABOR TO DETERMINE, ON THE BASIS OF PREVAILING RATES IN THE LOCALITY,
THE APPROPRIATE MINIMUM WAGES FOR EACH PROJECT.  THE CORRECTNESS OF THE
SECRETARY'S DETERMINATION IS NOT OPEN TO ATTACK ON JUDICIAL REVIEW. 
(FN14) 

THE COURT OF CLAIMS NEVERTHELESS AWARDED RESPONDENT DAMAGES ON THE
GROUND THAT THE GOVERNMENT, THROUGH THE CORPS OF ENGINEERS, HAD FALSELY
REPRESENTED THE PREVAILING RATES IN THE ELMIRA AREA.  THE SHORT ANSWER
TO THIS IS THAT THE GOVERNMENT MADE NO SUCH REPRESENTATION.  NEITHER
THE CONTRACT NOR THE SPECIFICATIONS REFERS TO "PREVAILING" RATES.  THE
CONTRACT SPEAKS ONLY OF "WAGE RATES NOT LESS THAN THOSE STATED IN THE
SPECIFICATIONS."  (FN15)  THE SPECIFICATIONS IN TURN SPEAK ONLY OF
"MINIMUM WAGE RATES APPLICABLE IN THE LOCALITY."  (FN16)  THE ONLY
REFERENCE TO "PREVAILING" RATES APPEARS IN THE STATUTE ITSELF, WHICH
PROVIDES THAT THE MINIMUM WAGE RATES ARE TO BE "BASED UPON  ...  THE
WAGES  ...  DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING." 
BUT THIS PROVISION IN THE ACT CANNOT CONVERT THE CONTRACTOR'S
OBLIGATION TO PAY NOT LESS THAN THE MIMIMUM INTO A GOVERNMENT
REPRESENTATION THAT THE CONTRACTOR WILL NOT HAVE TO PAY MORE.  ON ITS
FACE, THE ACT IS A MINIMUM WAGE LAW DESIGNED FOR THE BENEFIT OF
CONSTRUCTION WORKERS.  THE ACT DOES NOT AUTHORIZE OR CONTEMPLATE ANY
ASSURANCE TO A SUCCESSFUL BIDDER THAT THE SPECIFIED MINIMA WILL IN FACT
BE THE PREVAILING RATES.  INDEED, ITS REQUIREMENT THAT THE CONTRACTOR
PAY "NOT LESS" THAN THE SPECIFIED MINIMA PRESUPPOSES THE POSSIBILITY
THAT THE CONTRACTOR MAY HAVE TO PAY HIGHER RATES.  UNDER THESE
CIRCUMSTANCES, EVEN ASSUMING A REPRESENTATION BY THE GOVERNMENT AS TO
THE PREVAILING RATE, RESPONDENT'S RELIANCE ON THE REPRESENTATION IN
COMPUTING ITS BID CANNOT BE SAID TO HAVE BEEN JUSTIFIED. 

THE GOVERNMENT FURTHER CONTENDS THAT THE SECRETARY OF LABOR WAS
JUSTIFIED IN FIXING DIFFERENT MINIMUM RATES FOR THE HOUSING AND FLOOD
CONTROL PROJECTS ACCORDING TO THE DEGREE OF SKILL REQUIRED BY EACH
PROJECT, AND THAT RESPONDENT IS ESTOPPED TO CLAIM MISREPRESENTATION
BECAUSE OF ITS FAILURE TO MAKE AN INVESTIGATION OF LABOR COSTS BEFORE
SUBMITTING ITS BID.  BECAUSE OF OUR DISPOSITION OF THE CASE, WE FIND IT
UNNECESSARY TO REACH THESE ISSUES.  THE PORTION OF THE JUDGMENT ON
WHICH THE GOVERNMENT SOUGHT REVIEW IS REVERSED. 

FN1  ACT OF MARCH 3, 1931, C. 411, SEC. 1, 46 STAT. 1494, AS AMENDED
BY THE ACT OF AUGUST 30, 1935, C. 825, 49 STAT. 1011, 40 U.S.C. SECS.
276A-276A-5. 

FN2  49 STAT. 1011, 40 U.S.C. SEC. 276A: 

"  ...  THAT THE ADVERTISED SPECIFICATIONS FOR EVERY CONTRACT IN
EXCESS OF $2,000, TO WHICH THE UNITED STATES OR THE DISTRICT OF
COLUMBIA IS A PARTY, FOR CONSTRUCTION,  ...  OF PUBLIC BUILDINGS OR
PUBLIC WORKS OF THE UNITED STATES  ...  WHICH REQUIRES OR INVOLVES THE
EMPLOYMENT OF MECHANICS AND/OR LABORERS SHALL CONTAIN A PROVISION
STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND
MECHANICS WHICH SHALL BE BASED UPON THE WAGES THAT WILL BE DETERMINED
BY THE SECRETARY OF LABOR TO BE PREVAILING FOR THE CORRESPONDING
CLASSES OF LABORERS AND MECHANICS EMPLOYED ON PROJECTS OF A CHARACTER
SIMILAR TO THE CONTRACT WORK IN THE CITY, TOWN, VILLAGE, OR OTHER CIVIL
SUBDIVISION OF THE STATE IN WHICH THE WORK IS TO BE PERFORMED  ...  ;
AND EVERY CONTRACT BASED UPON THESE SPECIFICATIONS SHALL CONTAIN A
STIPULATION THAT THE CONTRACTOR OR HIS SUBCONTRACTOR SHALL PAY ALL
MECHANICS AND LABORERS EMPLOYED DIRECTLY UPON THE SITE OF THE WORK  ...
THE FULL AMOUNTS ACCRUED AT TIME OF PAYMENT, COMPUTED AT WAGE RATES
NOT LESS THAN THOSE STATED IN THE ADVERTISED SPECIFICATIONS  ...  ." 

FN3  49 STAT. 1011, 40 U.S.C. SEC. 276A-1. 

FN4  THE INVITATION PROVIDED IN PART: 

"INVESTIGATION OF CONDITIONS.  - BIDDERS ARE EXPECTED TO VISIT THE
LOCALITY OF THE WORK AND TO MAKE THEIR OWN ESTIMATES OF THE FACILITIES
NEEDED, THE DIFFICULTIES ATTENDING THE EXECUTION OF THE PROPOSED
CONTRACT, INCLUDING LOCAL CONDITIONS, AVAILABILITY OF LABOR,
UNCERTAINTIES OF WEATHER, AND OTHER CONTINGENCIES.  IN NO CASE WILL THE
GOVERNMENT ASSUME ANY RESPONSIBILITY WHATEVER FOR ANY INTERPRETATION,
DEDUCTION, OR CONCLUSION DRAWN FROM THE EXAMINATION OF THE SITE  ...  .
FAILURE TO ACQUAINT HIMSELF WITH ALL AVAILABLE INFORMATION CONCERNING
THESE CONDITIONS WILL NOT RELIEVE THE SUCCESSFUL BIDDER OF
RESPONSIBILITY FOR ESTIMATING THE DIFFICULTIES AND COSTS OF
SUCCESSFULLY PERFORMING THE COMPLETE WORK." 

FN5  THE SPECIFICATIONS CONTAINED THE FOLLOWING PROVISION: 

"1-31.  WAGE AND LABOR PROVISIONS.  (A)  THE SECRETARY OF LABOR HAS
DETERMINED THE MINIMUM WAGE RATES APPLICABLE IN THE LOCALITY FOR THE
LABOR CLASSIFICATIONS ANTICIPATED TO BE USED ON THE WORK.  IN
ACCORDANCE WITH ARTICLE 17 OF THE CONTRACT, EMPLOYEES AT THE SITE SHALL
BE PAID NOT LESS THAN THESE WAGES AS LISTED BELOW:

 "DESIGNATION                                      WAGE RATE -
HOURLY

 CARPENTERS, JOURNEYMEN            $1.00 

     *         *         *         *      *

 LABORERS, UNSKILLED               0.50

 LABORERS, CONCRETE PUDDLERS                           0.50" 

FN6  ARTICLE 17 OF THE CONTRACT READS IN PART AS FOLLOWS: 

"(A)  THE CONTRACTOR OR HIS SUBCONTRACTOR SHALL PAY ALL MECHANICS AND
LABORERS EMPLOYED DIRECTLY UPON THE SITE OF THE WORK  ...  THE FULL
AMOUNTS ACCRUED AT TIME OF PAYMENT, COMPUTED AT WAGE RATES NOT LESS
THAN THOSE STATED IN THE SPECIFICATIONS  ...  . 

"(B)  IN THE EVENT IT IS FOUND BY THE CONTRACTING OFFICER THAT ANY
LABORER OR MECHANIC EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR
DIRECTLY ON THE SITE OF THE WORK COVERED BY THE CONTRACT HAS BEEN OR IS
BEING PAID A RATE OF WAGES LESS THAN THE RATE OF WAGES REQUIRED BY THE
CONTRACT TO BE PAID AS AFORESAID, THE GOVERNMENT MAY, BY WRITTEN NOTICE
TO THE CONTRACTOR, TERMINATE HIS RIGHT TO PROCEED WITH THE WORK OR SUCH
PART OF THE WORK AS TO WHICH THERE HAS BEEN A FAILURE TO PAY SAID
REQUIRED WAGES AND PROSECUTE THE WORK TO COMPLETION BY CONTRACT OR
OTHERWISE, AND THE CONTRACTOR AND HIS SURETIES SHALL BE LIABLE TO THE
GOVERNMENT FOR ANY EXCESS COSTS OCCASIONED THE GOVERNMENT THEREBY." 

FN7  THE CHIEF OF ENGINEERS ADVISED RESPONDENT:  "THERE IS NO
AUTHORITY IN LAW FOR THIS OFFICE TO QUESTION THE CORRECTNESS OF ANY
DETERMINATION MADE BY THE SECRETARY OF LABOR PURSUANT TO THE PROVISIONS
OF THE ABOVE CITED ACT (THE DAVIS-BACON ACT)."  LATER, IN REFUSING TO
RECONSIDER RESPONDENT'S APPEAL, THE CHIEF OF ENGINEERS STATED:  "  ...
THE CONTRACT BY ARTICLE 17 AND BY PARAGRAPH 1-31 OF THE SPECIFICATIONS
PROVIDES THAT WAGES NOT LESS THAN THOSE SPECIFIED SHALL BE PAID.  THE
CONTRACT MAKES NO REPRESENTATION AS TO THE AVAILABILITY OF LABOR NOR AS
TO THE ACTUAL WAGE SCALES THAT WOULD BE IN EFFECT.  THE ALLEGED
INCREASED COSTS DID NOT RESULT FROM YOUR CONTRACT OBLIGATION BUT FROM
ECONOMIC CONDITIONS WHICH ARE ORDINARY CONTINGENCIES CONTEMPLATED UNDER
THE TERMS OF THE CONTRACT." 

FN8  123 CT. CL. 804, 810-811, 107 F. SUPP. 712, 716. 

"IF PLAINTIFF'S PRESIDENT HAD INVESTIGATED WAGE RATES, HE COULD HAVE
ASCERTAINED THAT THE PREVAILING RATE FOR CARPENTERS WAS $1.125 PER
HOUR, AND THAT THE PREVAILING RATE FOR UNSKILLED LABOR WAS $.55 PER
HOUR, WITH AN ADVANCE TO $.625 PER HOUR, EFFECTIVE AS OF APRIL 1,
1941.  ALSO, BEFORE INVITING BIDS ON THIS PROJECT, THE DISTRICT
ENGINEER COULD HAVE ASCERTAINED THAT THE SECRETARY OF LABOR HAD MADE A
NEW DETERMINATION OF THE PREVAILING WAGE RATES FOR ELMIRA ON MARCH 4,
1941."    FN9  ON ALL OTHER CLAIMS OF RESPONDENT, THE COURT OF CLAIMS
DENIED RECOVERY.  THAT PART OF THE COURT'S JUDGMENT IS THE SUBJECT OF
RESPONDENT'S PETITION FOR WRIT OF CERTIORARI IN NO. 78, THIS TERM. 
(CERTIORARI DENIED, POST, P. 926.) 

FN10  123 CT. CL. 804, 836-837, 107 F. SUPP. 712, 731, RELYING ON
ALBERT & HARRISON, INC. V. UNITED STATES, 107 CT. CL. 292, 308-309, 68
F. SUPP. 732, 734, CERT. DENIED, 331 U.S. 810. 

FN11  346 U.S. 809. 

FN12  COMPARE 49 STAT. 1011, 40 U.S.C. SEC. 276A-2(B), CONFERRING A
RIGHT OF ACTION ON EMPLOYEES DO RECOVER FROM THE CONTRACTOR THE AMOUNT
DUE THE EMPLOYEES UNDER THE MINIMUM WAGE SCHEDULE.    FN13  UNITED
STATES V. MORLEY CONST. CO., 98 F.2D 781, 788, CERT. DENIED, 305 U.S.
651; GILLIOZ V. WEBB, 99 F.2D 585; WINN-SENTER CONST. CO. V. UNITED
STATES, 110 CT. CL. 34, 61, 75 F. SUPP. 255, 257-258; CF. PERKINS V.
LUKENS STEEL CO., 310 U.S. 113, 128; ENDICOTT JOHNSON CORP. V. PERKINS,
317 U.S. 501, 507.  SEE ALSO H.R. REP. NO. 1756, 74TH CONG., 1ST SESS.;
S. REP. NO. 1155, 74TH CONG., 1ST SESS.; S. REP. NO. 1445, 71ST CONG.,
3D SESS. 

FN14  ALLIANCE CONST. CO. V. UNITED STATES, 79 CT. CL. 730.  CF.,
CONCERNING THE RELATED WALSH-HEALEY PUBLIC CONTRACTS ACT, PERKINS V.
LUKENS STEEL CO., 310 U.S. 113, AND ENDICOTT JOHNSON CORP. V. PERKINS,
317 U.S. 501. 

FN15  SEE NOTE 6, SUPRA. 

FN16  SEE NOTE 5, SUPRA.
..END :




ADAMS V. MARYLAND 347 U.S. 179 


NO. 271.  ARGUED JANUARY 7, 1954 - DECIDED MARCH 8, 1954 - 202 MD. 455,
97 A.2D 281, REVERSED. 


1.  IN RESPONSE TO A SUMMONS, PETITIONER APPEARED BEFORE A SENATE
COMMITTEE INVESTIGATING CRIME.  ANSWERING WITHOUT OBJECTION QUESTIONS
ASKED ON BEHALF OF THE COMMITTEE, HE CONFESSED TO HAVING RUN A GAMBLING
BUSINESS IN MARYLAND.  HELD:  UNDER 18 U.S.C. SEC. 3486, HIS TESTIMONY
BEFORE THE COMMITTEE WAS INADMISSIBLE IN HIS TRIAL IN A STATE COURT FOR
A GAMBLING OFFENSE, AND HIS CONVICTION BASED ON SUCH EVIDENCE IS
REVERSED.  PP. 179-183. 

(A)  PETITIONER'S FAILURE TO CLAIM A CONSTITUTIONAL PRIVILEGE AGAINST
SELF-INCRIMINATION DID NOT DEPRIVE HIM OF THE STATUTORY PROTECTION
AFFORDED BY SEC. 3486.  PP. 180-181. 

(B)  SECTION 3486 APPLIES TO CRIMINAL PROCEEDINGS IN STATE COURTS AS
WELL AS FEDERAL COURTS.  PP. 181-182. 

(C)  COUNSELMAN V. HITCHCOCK, 142 U.S. 547, IN NO WAY IMPAIRS THE
PROTECTION AFFORDED CONGRESSIONAL WITNESSES BY SEC. 3486.  PP. 182
183. 

2.  AS THUS CONSTRUED, SEC. 3486 DOES NOT EXCEED THE CONSTITUTIONAL
POWER OF CONGRESS.  P. 183. 

ADAMS V. MARYLAND. 

CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN RESPONSE TO A SUMMONS THE PETITIONER ADAMS APPEARED TO TESTIFY
BEFORE A SENATE COMMITTEE INVESTIGATING CRIME.  ANSWERING QUESTIONS HE
CONFESSED TO HAVING RUN A GAMBLING BUSINESS IN MARYLAND.  THAT
CONFESSION HAS BEEN USED IN THIS CASE TO CONVICT ADAMS OF CONSPIRING TO
VIOLATE MARYLAND'S ANTILOTTERY LAWS.  THE TRIAL COURT SENTENCED ADAMS
TO PAY A FINE OF $2,000 AND SERVE SEVEN YEARS IN THE STATE
PENITENTIARY.  THE COURT OF APPEALS OF MARYLAND AFFIRMED, REJECTING
ADAMS' CONTENTION THAT USE OF THE COMMITTEE TESTIMONY AGAINST HIM WAS
FORBIDDEN BY A PROVISION IN A FEDERAL STATUTE.  202 MD. 455, 97 A.2D
281.  THAT PROVISION, NOW 18 U.S.C. SEC. 3486, SET OUT IN FULL BELOW,
PROVIDES THAT NO TESTIMONY GIVEN BY A WITNESS IN CONGRESSIONAL
INQUIRIES "SHALL BE USED AS EVIDENCE IN ANY CRIMINAL PROCEEDING AGAINST
HIM IN ANY COURT  ...  ."  (FN1)  THE MARYLAND COURT OF APPEALS HELD
THAT ADAMS HAD TESTIFIED BEFORE THE COMMITTEE "VOLUNTARILY" AND WAS
THEREFORE NOT PROTECTED BY SEC. 3486.  WE GRANTED CERTIORARI BECAUSE A
PROPER UNDERSTANDING OF THE SCOPE OF THIS SECTION IS OF IMPORTANCE TO
THE NATIONAL GOVERNMENT, TO THE STATES AND TO WITNESSES SUMMONED BEFORE
CONGRESSIONAL COMMITTEES.  346 U.S. 864.  IN THIS COURT MARYLAND
CONTENDS THAT THE SECTION DOES NOT BAR USE OF ADAMS' TESTIMONY BECAUSE:
(1) HE WAIVED THE STATUTORY "PRIVILEGE" BY TESTIFYING "VOLUNTARILY,"
MEANING THAT ADAMS FAILED TO OBJECT TO EACH COMMITTEE QUESTION ON THE
GROUND OF ITS TENDENCY TO INCRIMINATE HIM; (2) THE SECTION SHOULD BE
CONSTRUED SO AS TO APPLY TO UNITED STATES COURTS ONLY.  IF THESE TWO
STATUTORY CONTENTIONS ARE REJECTED, WE ARE URGED TO HOLD THAT CONGRESS
IS WITHOUT CONSTITUTIONAL POWER TO BAR THE USE OF CONGRESSIONAL
COMMITTEE TESTIMONY IN STATE COURTS. 

(1)  CIRCUMSTANCES MAY BE CONCEIVABLE UNDER WHICH STATEMENTS MADE IN
THE PRESENCE OF A CONGRESSIONAL COMMITTEE MIGHT NOT BE PROTECTED BY
SEC. 3486.  FOR EXAMPLE, A PERSON MIGHT VOLUNTARILY APPEAR AND OBTAIN
PERMISSION TO MAKE A STATEMENT IN A COMMITTEE'S PRESENCE, WHOLLY FOR
HIS OWN ADVANTAGE, AND WITHOUT EVER BEING QUESTIONED BY THE COMMITTEE
AT ALL.  BUT ADAMS DID NOT TESTIFY BEFORE THE SENATE COMMITTEE UNDER
ANY SUCH CIRCUMSTANCES.  HE WAS NOT A VOLUNTEER.  HE WAS SUMMONED.  HAD
HE NOT APPEARED HE COULD HAVE BEEN FINED AND SENT TO JAIL.  2 U.S.C.
SEC. 192.  NOR DOES THE RECORD SHOW ANY SPONTANEOUS OUTPOURING OF
TESTIMONY FROM HIM.  THE TESTIMONY MARYLAND USED TO CONVICT HIM WAS
BROUGHT OUT BY REPEATED COMMITTEE QUESTIONS.  IT IS TRUE THAT ADAMS DID
NOT ATTEMPT TO ESCAPE ANSWERING THESE QUESTIONS BY CLAIMING A
CONSTITUTIONAL PRIVILEGE TO REFUSE TO INCRIMINATE HIMSELF.  BUT NO
LANGUAGE OF THE ACT REQUIRES SUCH A CLAIM IN ORDER FOR A WITNESS TO
FEEL SECURE THAT HIS TESTIMONY WILL NOT BE USED TO CONVICT HIM OF
CRIME.  INDEED, A WITNESS DOES NOT NEED ANY STATUTE TO PROTECT HIM FROM
THE USE OF SELF-INCRIMINATING TESTIMONY HE IS COMPELLED TO GIVE OVER
HIS OBJECTION.  THE FIFTH AMENDMENT TAKES CARE OF THAT WITHOUT A
STATUTE.  CONSEQUENTLY, THE CONSTRUCTION OF SEC. 3486 HERE URGED WOULD
LIMIT ITS PROTECTION TO THAT ALREADY AFFORDED BY THE FIFTH AMENDMENT,
LEAVING THE SECTION WITH NO EFFECT WHATEVER.  WE REJECT THE CONTENTION
THAT ADAMS' FAILURE TO CLAIM A CONSTITUTIONAL PRIVILEGE DEPRIVED HIM OF
THE STATUTORY PROTECTION OF SEC. 3486. 

(2)  NOR CAN WE HOLD THAT THE ACT BARS USE OF COMMITTEE TESTIMONY IN
UNITED STATES COURTS BUT NOT IN STATE COURTS.  THE ACT FORBIDS USE OF
SUCH EVIDENCE "IN ANY CRIMINAL PROCEEDING  ...  IN ANY COURT." 
LANGUAGE COULD BE NO PLAINER.  EVEN IF THERE COULD BE LEGISLATIVE
HISTORY SUFFICIENTLY STRONG TO MAKE "ANY COURT" MEAN UNITED STATES
COURTS ONLY, THERE IS NO SUCH HISTORY.  THE FEW SCRAPS OF LEGISLATIVE
HISTORY POINTED OUT TEND TO INDICATE THAT CONGRESS WAS WELL AWARE THAT
AN ORDINARY PERSON WOULD READ THE PHRASE "IN ANY COURT" TO INCLUDE
STATE COURTS.  TO CONSTRUE THIS PHRASE AS HAVING ANY OTHER MEANING
WOULD MAKE THE ACT A TRAP FOR THE UNWARY. 

IT IS SUGGESTED, HOWEVER, THAT REGARDLESS OF THE PLAIN MEANING OF
SEC. 3486 AS ORIGINALLY PASSED AN EVENT SINCE ITS PASSAGE SHOULD CAUSE
US TO GIVE IT AN ENTIRELY DIFFERENT MEANING.  THE SECTION STEMS FROM AN
1857 ACT OF CONGRESS DESIGNED TO GRANT COMMITTEE WITNESSES IMMUNITY
FROM PROSECUTION IN ORDER TO COMPEL THEM TO GIVE SELF-INCRIMINATING
TESTIMONY DESPITE THE FIFTH AMENDMENT.  (FN2) THIRTY-FIVE YEARS LATER
IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, THIS COURT HELD THAT AN ACT
NOT PROVIDING "COMPLETE" IMMUNITY FROM PROSECUTION WAS NOT BROAD ENOUGH
TO PERMIT A FEDERAL GRAND JURY TO COMPEL WITNESSES TO GIVE
INCRIMINATING TESTIMONY.  SECTION 3486 DOES NOT PROVIDE "COMPLETE"
IMMUNITY.  THE ORIGINAL PURPOSE OF CONGRESS TO COMPEL INCRIMINATING
TESTIMONY HAS THUS BEEN FRUSTRATED.  (FN3)  IT IS ARGUED THAT CONGRESS
COULD NOT HAVE INTENDED TO AFFORD ANY IMMUNITY TO CRIMINALS UNLESS IT
WAS THEREBY ENABLED TO COMPEL THEM TO TESTIFY ABOUT THEIR CRIMES. 
THEREFORE, IT IS SAID, SEC. 3486 SHOULD NOW BE GIVEN THE NARROWEST
POSSIBLE CONSTRUCTION - MADE EFFECTIVE ONLY WHEN THE FIFTH AMENDMENT
PRIVILEGE IS CLAIMED, AND HELD APPLICABLE ONLY TO UNITED STATES
COURTS.  BECAUSE CONGRESS DID NOT GET ALL IT HOPED, WE ARE URGED TO
DENY WITNESSES THE PROTECTION THE STATUTE PROMISES.  BUT A COURT
DECISION SUBSEQUENT TO AN ACT'S PASSAGE DOES NOT USUALLY ALTER ITS
ORIGINAL MEANING.  AND WE REJECT THE IMPLICATION THAT A GENERAL ACT OF
CONGRESS IS LIKE A PRIVATE CONTRACT WHICH COURTS SHOULD NULLIFY UPON A
SHOWING OF PARTIAL OR TOTAL FAILURE OF CONSIDERATION.  MOREOVER,
CONGRESS HAS KEPT THE STATUTE IN FORCE MORE THAN SIXTY YEARS SINCE THE
COUNSELMAN DECISION.  AND IN 1938 CONGRESS REENACTED THE STATUTE MAKING
CHANGES DEEMED DESIRABLE TO INSURE ITS CONTINUED USEFULNESS.  52 STAT.
943.  OUR HOLDING IS THAT COUNSELMAN V. HITCHCOCK IN NO WAY IMPAIRS THE
PROTECTION AFFORDED CONGRESSIONAL WITNESSES BY SEC. 3486. 

(3)  LITTLE NEED BE SAID ABOUT THE CONTENTION THAT CONGRESS LACKS
POWER TO BAR STATE COURTS FROM CONVICTING A PERSON FOR CRIME ON THE
BASIS OF EVIDENCE HE HAS GIVEN TO HELP THE NATIONAL LEGISLATIVE BODIES
CARRY ON THEIR GOVERNMENTAL FUNCTIONS.  CONGRESS HAS POWER TO SUMMON
WITNESSES BEFORE EITHER HOUSE OR BEFORE THEIR COMMITTEES.  MCGRAIN V.
DAUGHERTY, 273 U.S. 135.  ARTICLE I OF THE CONSTITUTION PERMITS
CONGRESS TO PASS LAWS "NECESSARY AND PROPER" TO CARRY INTO EFFECT ITS
POWER TO GET TESTIMONY.  WE ARE UNABLE TO SAY THAT THE MEANS CONGRESS
HAS HERE ADOPTED TO INDUCE WITNESSES TO TESTIFY IS NOT "APPROPRIATE"
AND "PLAINLY ADAPTED TO THAT END."  MCCULLOCH V. MARYLAND, 4 WHEAT. 
316, 421.  AND, SINCE CONGRESS IN THE LEGITIMATE EXERCISE OF ITS POWER
ENACTS "THE SUPREME LAW OF THE LAND," STATE COURTS ARE BOUND BY SEC.
3486, EVEN THOUGH IT AFFECTS THEIR RULES OF PRACTICE.  BROWN V. WALKER,
161 U.S. 591, 606-608.  CF. TESTA V. KATT, 330 U.S. 386. 

THE JUDGMENT OF THE MARYLAND COURT OF APPEALS AFFIRMING THIS
CONVICTION IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  "NO TESTIMONY GIVEN BY A WITNESS BEFORE EITHER HOUSE, OR BEFORE
ANY COMMITTEE OF EITHER HOUSE, OR BEFORE ANY JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, SHALL BE USED AS EVIDENCE IN ANY CRIMINAL PROCEEDING AGAINST
HIM IN ANY COURT, EXCEPT IN A PROSECUTION FOR PERJURY COMMITTED IN
GIVING SUCH TESTIMONY.  BUT AN OFFICIAL PAPER OR RECORD PRODUCED BY HIM
IS NOT WITHIN THE SAID PRIVILEGE."  11 STAT. 156, 12 STAT. 333, 52
STAT. 943, 62 STAT. 833, 18 U.S.C. SEC. 3486. 

FN2  ACT OF JAN. 24, 1857, 11 STAT. 156. 

FN3  SEE UNITED STATES V. BRYAN, 339 U.S. 323, 335-337. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON, CONCURRING. 

I AM IN SUBSTANTIAL AGREEMENT WITH THE COURT'S OPINION BUT DIFFER IN
EMPHASIS. 

THE ONLY CONTROLLING FACT FOR ME IS THAT THIS ACT IS ON THE FEDERAL
STATUTE BOOKS.  WHAT SOMEONE INTENDED ALMOST A CENTURY AGO WHEN IT WAS
PASSED, OR IN THE 1890'S WHEN COUNSELMAN V. HITCHCOCK, 142 U.S. 547,
WAS DECIDED, I DO NOT KNOW.  SINCE THE LAST EVENT, SOME THIRTY
CONGRESSES HAVE COME AND GONE, SOMETHING NEAR 15,000 CONGRESSMEN HAVE
BEEN ELECTED, NOT ALLOWING FOR REELECTION.  HOW MANY OF THEM KNEW OF
COUNSELMAN V. HITCHCOCK, HOW MANY FELT FRUSTRATED BY IT, AND HOW MANY
WOULD HAVE VENTED THEIR FRUSTRATION BY REPEAL, I DO NOT KNOW OR CARE. 
CONGRESS LEFT THE ACT ON THE BOOKS, AND IT WAS THERE WHEN THIS
PETITIONER TESTIFIED.  THE ONLY QUESTION IS WHAT IT WOULD MEAN TO A
REASONABLY WELL-INFORMED LAWYER READING IT. 

I DO NOT THINK IT IMPORTANT WHETHER PETITIONER WAS A "VOLUNTARY" OR
"INVOLUNTARY" WITNESS BEFORE THE CONGRESSIONAL COMMITTEE OR WHETHER HE
RAISED THE QUESTION OF HIS IMMUNITY UNDER THE FIFTH AMENDMENT.  NO SUCH
QUALIFICATION APPEARS IN THE ACT.  THE WHOLE OBJECT AND USEFULNESS OF
THE STATUTE IS TO RELIEVE THE WITNESS OF THE RISKS WHICH MIGHT INDUCE
HIM TO WITHHOLD TESTIMONY FROM CONGRESS.  IT IS VERY CUSTOMARY FOR ONE
WHO IS ASKED FOR INFORMATION TO APPEAR BEFORE A COMMITTEE WITHOUT
REQUIRING THE FORMALITY OF A SUBPOENA.  THE ACT DOES NOT STRIP ONE OF
ITS PROTECTION BECAUSE HE MAY BE A COOPERATIVE, OR EVEN INTERESTED,
WITNESS; INDEED, ITS PURPOSE IS TO PROTECT AND THEREBY ENCOURAGE
COOPERATION INSTEAD OF HESITATION OR RESISTANCE. 

THE STATUTE SEEMS AS UNAMBIGUOUS AS LANGUAGE CAN BE.  IF WORDS MEAN
ANYTHING, THE STATUTE EXTENDS ITS PROTECTION TO ALL WITNESSES, TO ALL
TESTIMONY, AND IN ALL COURTS.  IT IS EASY TO SEE, AS THIS CASE
ILLUSTRATES, THE HAZARD A WITNESS WOULD RUN OTHERWISE.  A LAWYER WOULD
BE WARRANTED FROM THE FACE OF THIS ACT IN ADVISING THE WITNESS THAT HE
HAD NOTHING TO FEAR FROM FRANK AND COMPLETE DISCLOSURE TO CONGRESS. 
THUS THE ACT WOULD HAVE ACCOMPLISHED ITS OBVIOUS PURPOSE OF
FACILITATING DISCLOSURE. 

I CANNOT SEE THE SLIGHTEST DOUBT THAT CONGRESS HAS POWER TO ENACT THE
STATUTE FOR THAT PURPOSE.  IT DOES NOT TAKE ANYTHING FROM MARYLAND.  IT
DOES NOT SAY MARYLAND CANNOT PROSECUTE PETITIONER; IT JUST SAYS SHE
SHALL NOT PUT HIM TO DISADVANTAGE ON THE TRIAL BY REASON OF HIS
COOPERATION WITH CONGRESS.  IT LEAVES MARYLAND WITH COMPLETE FREEDOM TO
PROSECUTE - SHE JUST HAS TO WORK UP HER OWN EVIDENCE AND CANNOT USE
THAT WORKED UP BY CONGRESS.  THE PROTECTION TO THE WITNESS DOES NOT
EXTEND BEYOND THE TESTIMONY ACTUALLY RECEIVED.  IN THIS CASE,
PETITIONER WAS CONVICTED BY THE STATE ON THE ADMISSIONS HE MADE BEFORE
THE SENATE COMMITTEE.  SECTION 3486 WAS THEREBY VIOLATED, AND THE
CONVICTION SHOULD BE REVERSED. 
..END :




















UNITED STATES V. EMPLOYING PLASTERERS ASSOCIATION OF CHICAGO 347 U.S.
186 


NO. 440.  ARGUED FEBRUARY 3, 1954 - DECIDED MARCH 8, 1954 - 118 F. SUPP.
387, REVERSED. 


THE UNITED STATES BROUGHT A CIVIL ACTION IN A FEDERAL DISTRICT COURT
CHARGING A VIOLATION OF SEC. 1 OF THE SHERMAN ACT BY A CHICAGO TRADE
ASSOCIATION OF PLASTERING CONTRACTORS, A LOCAL LABOR UNION OF
PLASTERERS, AND THE UNION'S PRESIDENT.  THE COMPLAINT ALLEGED A
COMBINATION AND CONSPIRACY TO RESTRAIN COMPETITION AMONG CHICAGO
PLASTERING CONTRACTORS, AND CHARGED THAT THE EFFECT WAS TO RESTRAIN
INTERSTATE COMMERCE.  HELD:  THE COMPLAINT STATED A CAUSE OF ACTION ON
WHICH RELIEF COULD BE GRANTED ON PROPER PROOF.  PP. 187-190. 

(A)  THE CONTENTION THAT THE SHERMAN ACT WAS INAPPLICABLE HERE
BECAUSE THE INTERSTATE BUYING, SELLING AND MOVEMENT OF PLASTERING
MATERIALS HAD ENDED BEFORE THE LOCAL RESTRAINTS BECAME EFFECTIVE,
CANNOT BE SUSTAINED.  P. 189. 

(B)  WHOLLY LOCAL BUSINESS RESTRAINTS CAN PRODUCE EFFECTS CONDEMNED
BY THE SHERMAN ACT.  P. 189. 

(C)  WHERE A COMPLAINT FILED BY THE GOVERNMENT UNDER THE SHERMAN ACT
CHARGES EVERY ELEMENT NECESSARY TO RELIEF, A DEFENDANT WHO DESIRES MORE
EVIDENTIAL FACTS MAY CALL FOR THEM UNDER RULE 12(E) OF THE FEDERAL
RULES OF CIVIL PROCEDURE; AND IF THE GOVERNMENT'S CLAIM IS FRIVOLOUS, A
FULL-DRESS TRIAL CAN BE AVOIDED BY INVOKING THE SUMMARY JUDGMENT
PROCEDURE UNDER RULE 56.  P. 189. 

(D)  SECTION 20 OF THE CLAYTON ACT DOES NOT RENDER A LABOR UNION
IMMUNE FROM PROSECUTION FOR VIOLATION OF THE SHERMAN ACT UPON A CHARGE
THAT THE UNION AND ITS PRESIDENT HAVE COMBINED WITH BUSINESS
CONTRACTORS TO SUPPRESS COMPETITION AMONG THEM.  P. 190. 

UNITED STATES V. EMPLOYING PLASTERERS ASSOCIATION OF CHICAGO ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS CIVIL ACTION IN A FEDERAL DISTRICT
COURT CHARGING THE DEFENDANTS (APPELLEES HERE) WITH HAVING VIOLATED
SEC. 1 OF THE SHERMAN ACT WHICH FORBIDS COMBINATIONS OR CONSPIRACIES IN
RESTRAINT OF INTERSTATE TRADE OR COMMERCE.*  HOLDING THAT THE COMPLAINT
FAILED TO STATE A CAUSE OF ACTION ON WHICH RELIEF COULD BE GRANTED
UNDER THE ACT, THE DISTRICT COURT DISMISSED.  THE CASE IS BEFORE US ON
DIRECT APPEAL, 15 U.S.C.  SEC. 29, AND THE ONLY QUESTION WE MUST DECIDE
IS WHETHER THE DISTRICT COURT'S DISMISSAL WAS ERROR.  WE HOLD IT WAS. 

*26 STAT. 209, AS AMENDED BY 50 STAT. 693, 15 U.S.C. SEC. 1, SO FAR
AS HERE RELEVANT READS: 

"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  ... ."  THE
COMPLAINT HERE ALSO CHARGED A VIOLATION OF SEC. 2 OF THE SHERMAN ACT,
BUT THE GOVERNMENT HAS NOT PRESSED THAT CLAIM HERE.  CF. STANDARD OIL
CO. V. UNITED STATES, 337 U.S. 293, 314. 

IN SUMMARY THE GOVERNMENT'S COMPLAINT ALLEGES: 

DEFENDANTS ARE (1) A CHICAGO TRADE ASSOCIATION OF PLASTERING
CONTRACTORS; (2) A LOCAL LABOR UNION OF PLASTERERS AND THEIR
APPRENTICES; (3) THE UNION'S PRESIDENT.  THESE CONTRACTORS AND UNION
MEMBERS EMPLOYED BY THEM DO APPROXIMATELY 60% OF THE PLASTERING
CONTRACTING BUSINESS IN THE CHICAGO AREA OF ILLINOIS.  MATERIALS USED
IN THE PLASTERING, SUCH AS GYPSUM, LATH, CEMENT, LIME, ETC., ARE
FURNISHED BY THE CONTRACTORS.  SUBSTANTIAL QUANTITIES OF THIS MATERIAL
ARE PRODUCED IN OTHER STATES, BOUGHT BY ILLINOIS BUILDING MATERIALS
DEALERS AND SHIPPED INTO ILLINOIS, SOMETIMES GOING DIRECTLY TO THE
PLACE OF BUSINESS OF THE DEALERS AND SOMETIMES DIRECTLY TO JOB SITES
FOR USE BY THE PLASTERING CONTRACTORS UNDER ARRANGEMENTS WITH THE
DEALERS.  THE PRACTICAL EFFECT OF ALL THIS IS A CONTINUOUS AND ALMOST
UNINTERRUPTED FLOW OF PLASTERING MATERIALS FROM OUT-OF-STATE ORIGINS TO
ILLINOIS JOB SITES FOR USE THERE BY PLASTERING CONTRACTORS.  RESTRAINT
OR DISRUPTION OF PLASTERING WORK IN THE CHICAGO AREA THUS NECESSARILY
AFFECTS THIS INTERSTATE FLOW OF PLASTERING MATERIALS ADVERSELY.  SINCE
1938 THE CHICAGO DEFENDANTS HAVE ACTED IN CONCERT TO SUPPRESS
COMPETITION AMONG LOCAL PLASTERING CONTRACTORS, TO PREVENT OUT-OF-STATE
CONTRACTORS FROM DOING ANY BUSINESS IN THE CHICAGO AREA AND TO BAR
ENTRY OF NEW LOCAL CONTRACTORS WITHOUT APPROVAL BY A PRIVATE EXAMINING
BOARD SET UP BY THE UNION.  THE EFFECT OF ALL THIS HAS BEEN AN UNLAWFUL
AND UNREASONABLE RESTRAINT OF THE FLOW IN INTERSTATE COMMERCE OF
MATERIALS USED IN THE CHICAGO PLASTERING INDUSTRY. 

THE DISTRICT COURT DID NOT QUESTION THAT THE FOREGOING AND OTHER
FACTUAL ALLEGATIONS SHOWED A COMBINATION TO RESTRAIN COMPETITION AMONG
CHICAGO PLASTERING CONTRACTORS.  BUT THE COURT CONSIDERED THESE
ALLEGATIONS TO BE "WHOLLY A CHARGE OF LOCAL RESTRAINT AND MONOPOLY,"
NOT REACHED BY THE SHERMAN ACT.  AND THE COURT HELD THAT THERE WAS NO
ALLEGATION OF FACT WHICH SHOWED THAT THESE POWERFUL LOCAL RESTRAINTS
HAD A SUFFICIENTLY ADVERSE EFFECT ON THE FLOW OF PLASTERING MATERIALS
INTO ILLINOIS.  AT THIS POINT WE DISAGREE.  THE COMPLAINT PLAINLY
CHARGED SEVERAL TIMES THAT THE EFFECT OF ALL THESE LOCAL RESTRAINTS WAS
TO RESTRAIN INTERSTATE COMMERCE.  WHETHER THESE CHARGES BE CALLED
"ALLEGATIONS OF FACT" OR "MERE CONCLUSIONS OF THE PLEADER," WE HOLD
THAT THEY MUST BE TAKEN INTO ACCOUNT IN DECIDING WHETHER THE GOVERNMENT
IS ENTITLED TO HAVE ITS CASE TRIED. 

WE ARE NOT IMPRESSED BY THE ARGUMENT THAT THE SHERMAN ACT COULD NOT
POSSIBLY APPLY HERE BECAUSE THE INTERSTATE BUYING, SELLING AND MOVEMENT
OF PLASTERING MATERIALS HAD ENDED BEFORE THE LOCAL RESTRAINTS BECAME
EFFECTIVE.  WHERE INTERSTATE COMMERCE ENDS AND LOCAL COMMERCE BEGINS IS
NOT ALWAYS EASY TO DECIDE AND IS NOT DECISIVE IN SHERMAN ACT CASES. 
SEE MANDEVILLE ISLAND FARMS V. AMERICAN CRYSTAL SUGAR CO., 334 U.S.
219, 232.  HOWEVER THIS MAY BE, THE COMPLAINT ALLEGED THAT CONTINUOUSLY
SINCE 1938 A LOCAL GROUP OF PEOPLE WERE TO A LARGE EXTENT ABLE TO
DICTATE WHO COULD AND WHO COULD NOT BUY PLASTERING MATERIALS THAT HAD
TO REACH ILLINOIS THROUGH INTERSTATE TRADE IF THEY REACHED THERE AT
ALL.  UNDER SUCH CIRCUMSTANCES IT GOES TOO FAR TO SAY THAT THE
GOVERNMENT COULD NOT POSSIBLY PRODUCE ENOUGH EVIDENCE TO SHOW THAT
THESE LOCAL RESTRAINTS CAUSED UNREASONABLE BURDENS ON THE FREE AND
UNINTERRUPTED FLOW OF PLASTERING MATERIALS INTO ILLINOIS.  THAT WHOLLY
LOCAL BUSINESS RESTRAINTS CAN PRODUCE THE EFFECTS CONDEMNED BY THE
SHERMAN ACT IS NO LONGER OPEN TO QUESTION.  SEE, E.G., UNITED STATES V.
WOMEN'S SPORTSWEAR MANUFACTURERS ASSN., 336 U.S. 460, 464. 

THE GOVERNMENT'S COMPLAINT MAY BE TOO LONG AND TOO DETAILED IN VIEW
OF THE MODERN PRACTICE LOOKING TO SIMPLICITY AND REASONABLE BREVITY IN
PLEADING.  IT DOES NOT CHARGE TOO LITTLE.  IT INCLUDES EVERY ESSENTIAL
TO SHOW A VIOLATION OF THE SHERMAN ACT.  AND WHERE A BONA FIDE
COMPLAINT IS FILED THAT CHARGES EVERY ELEMENT NECESSARY TO RECOVER,
SUMMARY DISMISSAL OF A CIVIL CASE FOR FAILURE TO SET OUT EVIDENTIAL
FACTS CAN SELDOM BE JUSTIFIED.  IF A PARTY NEEDS MORE FACTS, IT HAS A
RIGHT TO CALL FOR THEM UNDER RULE 12(E) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  AND ANY TIME A CLAIM IS FRIVOLOUS AN EXPENSIVE FULL DRESS
TRIAL CAN BE AVOIDED BY INVOKING THE SUMMARY JUDGMENT PROCEDURE UNDER
RULE 56. 

WE HOLD IT WAS ERROR TO DISMISS THE GOVERNMENT'S COMPLAINT FOR
FAILURE TO STATE A CAUSE OF ACTION. 

THIS LEAVES THE SEPARATE CONTENTION OF THE UNION THAT IT IS IMMUNE
FROM PROSECUTION FOR VIOLATION OF THE SHERMAN ACT BECAUSE OF SEC. 20 OF
THE CLAYTON ACT.  THIS CONTENTION HAS NO MERIT UNDER THE ALLEGATIONS OF
THE COMPLAINT HERE BECAUSE THEY SHOW, IF TRUE, THAT THE UNION AND ITS
PRESIDENT HAVE COMBINED WITH BUSINESS CONTRACTORS TO SUPPRESS
COMPETITION AMONG THEM.  ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, 325
U.S. 797.  REVERSED. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING.* 

*THIS OPINION APPLIES ALSO TO NO. 439, UNITED STATES V. EMPLOYING
LATHERS ASSN. ET AL., POST, P. 198. 

THAT, ACCEPTING THE PLEADINGS AS TRUE, THERE ARE AND WERE
CONSPIRACIES TO RESTRAIN IS NOT OPEN TO QUESTION.  THE QUESTION IS
WHETHER THE SHERMAN ACT APPLIES, AND THAT DEPENDS UPON WHETHER THE
CONSPIRACIES ARE TO RESTRAIN INTERSTATE COMMERCE.  IN MY OPINION, THE
ACTIVITIES HERE COMPLAINED OF ARE WHOLLY INTRASTATE, AND THE RESTRAINT
UPON INTERSTATE COMMERCE, IF ANY, IS SO INDIRECT, REMOTE AND
INCONSEQUENTIAL AS TO BE WITHOUT EFFECT AND WHOLLY FOREIGN TO AN INTENT
OR PURPOSE TO CONSPIRE TO RESTRAIN INTERSTATE COMMERCE. 

THERE IS NO INTERFERENCE WITH INTERSTATE COMMERCE.  THAT COMMERCE
ENDS WHEN THE PLASTER AND LATH REACH THE BUILDING SITE, WHETHER THEY
COME FIRST TO MATERIAL SUPPLIERS AND AT REST IN THEIR WAREHOUSES AND
AFTERWARDS ON ORDER DELIVERED TO THE CONTRACTORS ON THE JOB, AS MOST OF
THE TRANSACTIONS ARE ALLEGED TO BE HANDLED, OR ARE DELIVERED DIRECTLY
TO THE JOB.  THE CONSTRUCTION OF A BUILDING AND THE INCORPORATION
THEREIN OF PLASTER AND LATH ARE PURELY LOCAL TRANSACTIONS. 

"NOR IS BUILDING COMMERCE; AND THE FACT THAT THE MATERIALS TO BE USED
ARE SHIPPED IN FROM OTHER STATES DOES NOT MAKE BUILDING A PART OF SUCH
INTERSTATE COMMERCE."  ANDERSON V. SHIPOWNERS ASSN., 272 U.S. 359,
364. 

THE GOVERNMENT DOES NOT AND COULD NOT CONTEND THAT BUILDING IS
COMMERCE.  IT CONTENDS THAT THE APPELLEES' ACTS AFFECT COMMERCE,
RELYING UPON SUCH CASES AS LABOR BOARD V. DENVER BUILDING COUNCIL, 341
U.S. 675, AND WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564.  BUT
THOSE CASES AROSE UNDER DIFFERENT STATUTES, THE SWEEP OF WHICH IS
BROADER THAN THAT OF SEC. 1 OF THE SHERMAN ACT, WHICH DECLARES ILLEGAL
ONLY THOSE CONTRACTS, COMBINATIONS AND CONSPIRACIES "IN RESTRAINT OF
TRADE OR COMMERCE AMONG THE SEVERAL STATES."  THE DENVER COUNCIL CASE
AROSE UNDER THE LABOR MANAGEMENT RELATIONS ACT, WHICH PROVIDES: 

"SEC. 10.  (A) THE BOARD IS EMPOWERED, AS HEREINAFTER PROVIDED, TO
PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED
IN SECTION 8) AFFECTING COMMERCE  ...  ."  61 STAT. 146, 29 U.S.C. SEC.
160(A). 


"(7)  THE TERM 'AFFECTING COMMERCE' MEANS IN COMMERCE, OR BURDENING
OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE, OR HAVING LED OR
TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE OR
THE FREE FLOW OF COMMERCE."  61 STAT. 138, 29 U.S.C. SEC. 152(7). 

THE JACKSONVILLE PAPER CASE AROSE UNDER THE FAIR LABOR STANDARDS ACT,
WHICH IS APPLICABLE TO "EMPLOYEES WHO ARE ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE  ...  ."  52 STAT. 1062, 29 U.S.C.
SEC. 206.  FURTHERMORE, THAT CASE DEALT WITH TRANSACTIONS THAT TOOK
PLACE IN THE STREAM OF COMMERCE.  COMPARE HIGGINS V. CARR BROS. CO.,
317 U.S. 572.  IN THE INSTANT CASES, THE STREAM OF COMMERCE STOPS AT
THE BUILDING SITE. 

INSOFAR AS THE FACTUAL ALLEGATIONS IN THESE COMPLAINTS ARE CONCERNED,
THE APPELLEES ARE ESSENTIALLY CHARGED WITH CONSPIRING TO DIVIDE THE
PLASTERING AND LATHING BUSINESS IN THE CHICAGO AREA AMONG THEMSELVES,
LIMITING THE NUMBER AND CLASSES OF PERSONS WHO MAY BECOME CONTRACTORS
OR UNION MEMBERS AND REDUCING COMPETITION AMONG THE CONTRACTORS,
PRIMARILY BY MEANS OF UNION CONTROL OVER THOSE WHO MAY ENGAGE IN THE
BUSINESS EITHER AS CONTRACTORS OR AS UNION MEMBERS.  THE ACTS OF THE
APPELLEES HERE COMPLAINED OF THUS ARE ALL RELATED TO LOCAL BUILDING
CONSTRUCTION AND THOSE PERMITTED TO ENGAGE IN SUCH CONSTRUCTION.  THE
ALLEGATIONS DO NOT ESTABLISH ANY INTERFERENCE WITH THE FLOW OF
COMMERCE, AT ITS BEGINNING OR END OR IN THE COURSE OF ITS FLOW, OR THAT
ANYTHING IS DONE TO INFLUENCE THE PLACE FROM WHENCE OR TO WHICH THE
MATERIALS COME OR GO, OR THEIR PRICE.  TO BE SURE, THE COMPLAINTS
CONTAIN BALD STATEMENTS TO THE EFFECT THAT THE ALLEGED CONSPIRACIES ARE
IN RESTRAINT OF INTERSTATE COMMERCE.  HOWEVER, THESE CONCLUSIONAL
ALLEGATIONS ADD NOTHING AND DO NOT CONCEAL THE FAILURE TO SET FORTH
FACTS SHOWING ANY DIRECT OR SUBSTANTIAL RESTRAINT ON INTERSTATE
COMMERCE OR A PURPOSE OR INTENT TO DO SO.  WHAT IS CHARGED IN THESE
CASES MAY CONSTITUTE A RESTRAINT UNDER STATE JURISDICTION AND MAY
REMOTELY OR INDIRECTLY AFFECT INTERSTATE COMMERCE.  BUT THAT HAS BEEN
CONSISTENTLY HELD TO BE NO VIOLATION OF THE SHERMAN ACT.  APEX HOSIERY
CO. V. LEADER, 310 U.S. 469, 495; LEVERING & GARRIGUES CO. V. MORRIN,
289 U.S. 103, 107. 

INDUSTRIAL ASSOCIATION OF SAN FRANCISCO V. UNITED STATES, 268 U.S.
64, WAS A CASE INVOLVING FAR MORE OFFENSIVE ACTION THAN THE INSTANT
CASES.  IN THAT CASE, CONTRACTORS AND SUPPLIERS, IN ORDER TO FORCE AN
"OPEN SHOP," REQUIRED BUILDERS TO SECURE PERMITS FOR CERTAIN MATERIALS
FROM A BUILDERS' EXCHANGE, REFUSING SUCH PERMITS TO THOSE WHO DID NOT
MAINTAIN AN OPEN SHOP.  SOME OF THE MATERIALS CAME FROM OTHER STATES,
AND THE PERMITS WERE SO HANDLED AS TO CONTROL MATERIALS, SUCH AS
PLUMBERS' SUPPLIES, THAT CAME ALTOGETHER FROM OUT-OF-STATE SOURCES. 
THIS COURT, COMMENTING ON THE "ESTABLISHED GENERAL FACTS" OF THE PLAN,
SAID: 

"INTERFERENCE WITH INTERSTATE TRADE WAS NEITHER DESIRED NOR
INTENDED.  ON THE CONTRARY, THE DESIRE AND INTENTION WAS TO AVOID ANY
SUCH INTERFERENCE, AND, TO THIS END, THE SELECTION OF MATERIALS SUBJECT
TO THE PERMIT SYSTEM WAS SUBSTANTIALLY CONFINED TO CALIFORNIA
PRODUCTIONS.  THE THING AIMED AT AND SOUGHT TO BE ATTAINED WAS NOT
RESTRAINT OF THE INTERSTATE SALE OR SHIPMENT OF COMMODITIES, BUT WAS A
PURELY LOCAL MATTER, NAMELY, REGULATION OF BUILDING OPERATIONS WITHIN A
LIMITED LOCAL AREA, SO AS TO PREVENT THEIR DOMINATION BY THE LABOR
UNIONS.  INTERSTATE COMMERCE, INDEED COMMERCE OF ANY DESCRIPTION, WAS
NOT THE OBJECT OF ATTACK, 'FOR THE SAKE OF WHICH THE SEVERAL SPECIFIC
ACTS AND COURSES OF CONDUCT WERE DONE AND ADOPTED.'  SWIFT AND COMPANY
V. UNITED STATES, 196 U.S. 375, 397.  THE FACTS AND CIRCUMSTANCES WHICH
LED TO AND ACCOMPANIED THE CREATION OF THE COMBINATION AND THE CONCERT
OF ACTION COMPLAINED OF, WHICH WE HAVE BRIEFLY SET FORTH, APART FROM
OTHER AND MORE DIRECT EVIDENCE, ARE 'AMPLE TO SUPPLY A FULL LOCAL
MOTIVE FOR THE CONSPIRACY.'  UNITED MINE WORKERS V. CORONADO CO., 259
U.S. 344, 411."  268 U.S., AT 77. 

IN LANGUAGE PROPHETIC, THIS COURT FURTHER SAID: 

"BUT HERE, THE DELIVERY OF THE PLASTER TO THE LOCAL REPRESENTATIVE OR
DEALER WAS THE CLOSING INCIDENT OF THE INTERSTATE MOVEMENT AND ENDED
THE AUTHORITY OF THE FEDERAL GOVERNMENT UNDER THE COMMERCE CLAUSE OF
THE CONSTITUTION.  WHAT NEXT WAS DONE WITH IT, WAS THE RESULT OF NEW
AND INDEPENDENT ARRANGEMENTS."  268 U.S., AT 79. 

ALTHOUGH THE PERMITS WERE USED SO AS TO INTERFERE WITH THE FREE
MOVEMENT OF MATERIALS AND SUPPLIES FROM OTHER STATES, THIS COURT SAID: 

"IT WAS, HOWEVER, AN INTERFERENCE NOT WITHIN THE DESIGN OF THE
APPELLANTS, BUT PURELY INCIDENTAL TO THE ACCOMPLISHMENT OF A DIFFERENT
PURPOSE.  THE COURT BELOW LAID ESPECIAL STRESS UPON THE POINT THAT
PLUMBERS' SUPPLIES, WHICH FOR THE MOST PART WERE MANUFACTURED OUTSIDE
THE STATE, THOUGH NOT INCLUDED UNDER THE PERMIT SYSTEM, WERE PREVENTED
FROM ENTERING THE STATE BY THE PROCESS OF REFUSING A PERMIT TO PURCHASE
OTHER MATERIALS, WHICH WERE UNDER THE SYSTEM, TO ANYONE WHO EMPLOYED A
PLUMBER WHO WAS NOT OBSERVING THE 'AMERICAN PLAN.'  THIS IS TO SAY, IN
EFFECT, THAT THE BUILDING CONTRACTOR, BEING UNABLE TO PURCHASE THE
PERMIT MATERIALS, AND CONSEQUENTLY UNABLE TO GO ON WITH THE JOB, WOULD
HAVE NO NEED FOR PLUMBING SUPPLIES, WITH THE RESULT THAT THE TRADE IN
THEM, TO THAT EXTENT, WOULD BE DIMINISHED.  BUT THIS IGNORES THE ALL
IMPORTANT FACT THAT THERE WAS NO INTERFERENCE WITH THE FREEDOM OF THE
OUTSIDE MANUFACTURER TO SELL AND SHIP OR OF THE LOCAL CONTRACTOR TO
BUY.  THE PROCESS WENT NO FURTHER THAN TO TAKE AWAY THE LATTER'S
OPPORTUNITY TO USE, AND, THEREFORE, HIS INCENTIVE TO PURCHASE  ...  ." 

     *         *         *         *       * 

"THE ALLEGED CONSPIRACY AND THE ACTS HERE COMPLAINED OF, SPENT THEIR
INTENDED AND DIRECT FORCE UPON A LOCAL SITUATION, - FOR BUILDING IS AS
ESSENTIALLY LOCAL AS MINING, MANUFACTURING OR GROWING CROPS, - AND IF,
BY A RESULTING DIMINUTION OF THE COMMERCIAL DEMAND, INTERSTATE TRADE
WAS CURTAILED EITHER GENERALLY OR IN SPECIFIC INSTANCES, THAT WAS A
FORTUITOUS CONSEQUENCE SO REMOTE AND INDIRECT AS PLAINLY TO CAUSE IT TO
FALL OUTSIDE THE REACH OF THE SHERMAN ACT."  268 U.S., AT 80, 82. 

AS I SEE IT, THAT IS ALL THAT HAPPENS HERE.  INTERSTATE COMMERCE HAS
ENDED.  THERE IS NO INTENT OR PURPOSE TO RESTRAIN INTERSTATE COMMERCE. 
THE EFFECT UPON COMMERCE IS INCIDENTAL, REMOTE AND INDIRECT.  IT IS A
RESTRAINT THAT SPENDS ITSELF ON A PURELY LOCAL INCIDENT.  IF
CONTRACTORS OF MATERIALS AND SUPPLIES MAY COMBINE TO COMPEL AN OPEN
SHOP BY FAR MORE DRASTIC MEASURES, AS IN THE INDUSTRIAL ASSOCIATION
CASE, THEN SURELY THE WORKERS AND CONTRACTORS MAY COMBINE TO PROMOTE A
CLOSED SYSTEM BY AN AGREEMENT LOCAL IN ITS NATURE. 

THE CASE OF LEVERING & GARRIGUES CO. V. MORRIN, 289 U.S. 103, WHICH
FOLLOWED THE INDUSTRIAL ASSOCIATION CASE, IS IN POINT HERE.  IN THAT
CASE, THE COMPANIES, ENGAGED IN THE BUILDING OF STEEL BRIDGES, OPERATED
OPEN SHOPS.  THE UNIONS BY STRIKE AND OTHER TECHNIQUES SOUGHT TO FORCE
CLOSED SHOPS.  THE COMPANIES SOUGHT AN INJUNCTION UNDER THE SHERMAN
ACT.  THE COMPLAINT WAS DISMISSED FOR FAILURE TO STATE A CAUSE OF
ACTION.  THIS COURT SAID: 

"ACCEPTING THE ALLEGATIONS OF THE BILL AT THEIR FULL VALUE, IT
RESULTS THAT THE SOLE AIM OF THE CONSPIRACY WAS TO HALT OR SUPPRESS
LOCAL BUILDING OPERATIONS AS A MEANS OF COMPELLING THE EMPLOYMENT OF
UNION LABOR, NOT FOR THE PURPOSE OF AFFECTING THE SALE OR TRANSIT OF
MATERIALS IN INTERSTATE COMMERCE.  USE OF THE MATERIALS WAS PURELY A
LOCAL MATTER, AND THE SUPPRESSION THEREOF THE RESULT OF THE PURSUIT OF
A PURELY LOCAL AIM.  RESTRAINT OF INTERSTATE COMMERCE WAS NOT AN OBJECT
OF THE CONSPIRACY.  PREVENTION OF THE LOCAL USE WAS IN NO SENSE A MEANS
ADOPTED TO EFFECT SUCH A RESTRAINT.   IT IS THIS EXCLUSIVELY LOCAL AIM,
AND NOT THE FORTUITOUS AND INCIDENTAL EFFECT UPON INTERSTATE COMMERCE,
WHICH GIVES CHARACTER TO THE CONSPIRACY  ...  .  IF THEREBY THE
SHIPMENT OF STEEL IN INTERSTATE COMMERCE WAS CURTAILED, THAT RESULT WAS
INCIDENTAL, INDIRECT AND REMOTE, AND, THEREFORE, NOT WITHIN THE ANTI
TRUST ACTS, AS THIS COURT, PRIOR TO THE FILING OF THE PRESENT BILL, HAD
ALREADY HELD  ...  ."  268 U.S., AT 107. 

IF A UNION MAY STRIKE AND OBTAIN ITS OBJECTIVE OF A CLOSED SHOP
WITHOUT INTERFERING WITH INTERSTATE COMMERCE, AS IN THE LEVERING CASE,
THE UNIONS IN THE INSTANT CASES COULD CERTAINLY BARGAIN AND AGREE WITH
THE EMPLOYERS TO REACH THE SAME RESULT.  SEE ALSO UNITED LEATHER
WORKERS V. HERKERT & MEISEL TRUNK CO., 265 U.S. 457, AND SEE UNITED
STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293, 297, WHERE THE CASES
DISCUSSED ABOVE ARE DISTINGUISHED. 

THE GOVERNMENT HAS RELIED HEAVILY UPON MANDEVILLE FARMS V. AMERICAN
CRYSTAL SUGAR CO., 334 U.S. 219.  BUT THAT DECISION, AS DID THE
FRANKFORT DISTILLERIES CASE, RECOGNIZED THE DISTINCT LINE OF CASES I
RELY UPON HERE AS DISTINGUISHABLE FROM THE HOLDING THEREIN.  PAGE 234. 

IN NO. 440, IT IS ALLEGED THAT THE APPELLEES HAVE PREVENTED AND
DISCOURAGED OUT-OF-STATE PLASTERING CONTRACTORS FROM DOING BUSINESS IN
THE CHICAGO AREA BY SLOWDOWNS, FINES ON UNION LABOR, INTIMIDATION, AND
OTHER MEANS.  ASSUME THAT SUCH TACTICS ARE EFFECTIVE TO KEEP OUTSTATE
CONTRACTORS FROM SEEKING CONTRACTS IN THE CHICAGO AREA.  CONTRACTING TO
PLASTER A BUILDING IN CHICAGO BY AN OUTSTATE CONTRACTOR IS NOT
COMMERCE, EVEN IF THE CONTRACTOR DID INTEND TO BRING HIS MEN FROM
OUTSTATE, ANY MORE THAN BRINGING MEN FROM ONE STATE INTO ANOTHER TO
PLAY BASEBALL IS COMMERCE.  TOOLSON V. NEW YORK YANKEES, 346 U.S. 356;
FEDERAL BASEBALL CLUB OF BALTIMORE V. NATIONAL LEAGUE OF PROFESSIONAL
BASEBALL CLUBS, 259 U.S. 200, 208.  THE MATERIALS TO PLASTER THE
BUILDING FLOW WITHOUT INTERRUPTION TO THE BUILDING SITE.  THERE A LOCAL
LABOR SITUATION ARISES THAT HAS NOTHING TO DO WITH COMMERCE OR ANY
CONSPIRACY TO RESTRAIN IT.  THAT IS ALL THAT IS INVOLVED HERE, AND
THEREFORE COMMERCE IN THE SENSE OF THAT TERM AS USED IN THE SHERMAN ACT
IS NOT INVOLVED. 

I WOULD AFFIRM. 
..END :




UNITED STATES V. EMPLOYING LATHERS ASSOCIATION OF CHICAGO AND VICINITY
347 U.S. 198 


NO. 439.  ARGUED FEBRUARY 3, 1954 - DECIDED MARCH 8, 1954 - 118 F. SUPP.
387, REVERSED. 


THE UNITED STATES BROUGHT A CIVIL ACTION IN THE FEDERAL DISTRICT COURT
CHARGING A VIOLATION OF SEC. 1 OF THE SHERMAN ACT BY A TRADE
ASSOCIATION OF CHICAGO LATHING CONTRACTORS, TWO OF ITS MEMBER
CONTRACTORS, AND A LOCAL LABOR UNION COMPOSED OF LATHERS.  THE
COMPLAINT ALLEGED A COMBINATION AND CONSPIRACY TO RESTRAIN COMPETITION
IN THE LATHING BUSINESS, AND CHARGED THAT AN EFFECT OF THE COMBINATION
AND CONSPIRACY WAS THAT INTERSTATE TRADE AND COMMERCE IN LATHING AND
RELATED BUILDING MATERIALS HAD BEEN UNLAWFULLY RESTRAINED.  HELD:  THE
COMPLAINT STATED A CAUSE OF ACTION ON WHICH RELIEF CAN BE GRANTED ON
PROPER PROOF.  UNITED STATES V. EMPLOYING PLASTERERS ASSN., ANTE, P.
186.  PP. 198-200. 

UNITED STATES V. EMPLOYING LATHERS ASSOCIATION OF CHICAGO AND VICINITY
ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CIVIL ACTION WAS BROUGHT BY THE GOVERNMENT IN A FEDERAL DISTRICT
COURT OF ILLINOIS AGAINST APPELLEES, A TRADE ASSOCIATION OF CHICAGO
LATHING CONTRACTORS, TWO OF ITS MEMBER CONTRACTORS, AND A LOCAL LABOR
UNION COMPOSED OF LATHERS.  THE COMPLAINT CHARGED A VIOLATION OF SEC. 1
OF THE SHERMAN ACT WHICH FORBIDS COMBINATIONS OR CONSPIRACIES IN
RESTRAINT OF TRADE OR COMMERCE AMONG THE STATES.  15 U.S.C. SEC. 1.*
THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND THAT IT FAILED
TO STATE A CAUSE OF ACTION ON WHICH RELIEF COULD BE GRANTED.  AT THE
SAME TIME AND FOR THE SAME REASON IT DISMISSED A SIMILAR COMPLAINT
CHARGING A CHICAGO PLASTERERS' ASSOCIATION AND A LOCAL PLASTERERS'
UNION WITH VIOLATING SEC. 1 OF THE SHERMAN ACT.  BOTH CASES WERE
BROUGHT HERE ON DIRECT APPEAL BY THE GOVERNMENT UNDER AUTHORITY OF 15
U.S.C. SEC. 29.  WE HAVE JUST REVERSED THE DISTRICT COURT'S DISMISSAL
OF THE COMPLAINT AGAINST THE PLASTERING GROUP, UNITED STATES V.
EMPLOYING PLASTERERS ASSN. OF CHICAGO, ANTE, P. 186.  DESPITE SOME
DIFFERENCES IN THE TWO COMPLAINTS, THE REASONS FOR REVERSING THE
PLASTERERS' CASE ARE EQUALLY APPLICABLE HERE. 

*THE GOVERNMENT COMPLAINT ALSO CHARGED A VIOLATION OF SEC. 2 OF THE
SHERMAN ACT BUT THAT CLAIM IS NOT PRESSED HERE. 

THIS COMPLAINT SHOWS: 

A SUBSTANTIAL QUANTITY OF LATHING MATERIAL USED ON CHICAGO JOBS IS
PRODUCED IN STATES OTHER THAN ILLINOIS, SOLD BY THE PRODUCERS TO
CHICAGO BUILDING MATERIAL DEALERS, SHIPPED INTERSTATE EITHER TO THE
CHICAGO DEALERS OR TO THEIR PLASTERING CONTRACTOR CUSTOMERS, AND
FINALLY DELIVERED BY THE PLASTERING CONTRACTOR TO HIS LATHING
CONTRACTOR FOR USE ON LOCAL BUILDING JOBS.  THE ALLEGED CONSPIRACY HERE
IS AMONG THESE LATHING CONTRACTORS AND THE UNION WHOSE MEMBERS DO THE
ACTUAL LATHING.  THIS COMBINATION, ACCORDING TO THE COMPLAINT, HAS
ACHIEVED ALMOST COMPLETE MASTERY OVER THE LATHING BUSINESS IN THE
CHICAGO AREA.  IT LIMITS THE NUMBER OF LATHING CONTRACTORS, PRESCRIBES
THEIR QUALIFICATIONS, DECIDES WHO MEETS THE STANDARDS PRESCRIBED,
EXCLUDES PERSONS FROM THE BUSINESS ON VARIED GROUNDS, INCLUDING
ARBITRARY RACIAL STANDARDS, AND ASSIGNS PLASTERING CONTRACTORS TO EACH
LATHING CONTRACTOR.  ALL OF THESE ALLEGATIONS AND MORE SHOW A
SUBSTANTIAL SUPPRESSION OF COMPETITION IN THE LATHING BUSINESS. 

THE COMPLAINT CHARGES THAT AN EFFECT OF THE ALLEGED COMBINATION AND
CONSPIRACY HAS BEEN THAT "INTERSTATE TRADE AND COMMERCE IN LATHING AND
RELATED BUILDING MATERIALS HAS BEEN UNLAWFULLY RESTRAINED."  OTHER
ALLEGATIONS EMPHASIZE THIS CHARGE BY ASSERTING THAT ANY RESTRAINT UPON
LATHING WORK IN CHICAGO "NECESSARILY AND DIRECTLY RESTRAINS AND AFFECTS
THE INTERSTATE FLOW OF LATHING MATERIALS, AND  ...  BUILDING MATERIALS
...  ." 

THE COMPLAINT DOES STATE A CAUSE OF ACTION ON WHICH RELIEF CAN BE
GRANTED ON PROPER PROOF.  REVERSED. 

FOR DISSENTING OPINION OF MR. JUSTICE MINTON, JOINED BY MR. JUSTICE
DOUGLAS, SEE ANTE, P. 190. 
..END :

















MAZER, D.B.A. JUNE LAMP MANUFACTURING CO. V. STEIN, D.B.A. REGLOR OF
CALIFORNIA 347 U.S. 201 


NO. 228.  ARGUED DECEMBER 3, 1953 - DECIDED MARCH 8, 1954 - 204 F.2D
472, AFFIRMED. 


RESPONDENTS ARE ENGAGED IN THE MANUFACTURE AND SALE OF ELECTRIC
LAMPS.  ONE OF THE RESPONDENTS CREATED ORIGINAL WORKS OF SCULPTURE,
FROM THE MODELS OF WHICH CHINA STATUETTES WERE MADE.  THE STATUETTES
WERE USED AS BASES FOR FULLY EQUIPPED ELECTRIC LAMPS, WHICH RESPONDENTS
SOLD.  RESPONDENTS SUBMITTED THE STATUETTES, WITHOUT ANY LAMP
COMPONENTS ADDED, FOR REGISTRATION UNDER THE COPYRIGHT LAW AS "WORKS OF
ART" OR REPRODUCTIONS THEREOF.  HELD:  THE STATUETTES WERE
COPYRIGHTABLE.   PP. 202-219. 

(A)  THE SUCCESSIVE COPYRIGHT ACTS, THE LEGISLATIVE HISTORY OF THE
1909 ACT, AND THE PRACTICE OF THE COPYRIGHT OFFICE SHOW THAT "WORKS OF
ART" AND "REPRODUCTIONS OF WORKS OF ART" WERE INTENDED BY CONGRESS TO
INCLUDE THE AUTHORITY TO COPYRIGHT SUCH STATUETTES.  PP. 208-214. 

(B)  THAT THE STATUETTES, FITTED AS LAMPS OR UNFITTED, MAY BE
PATENTABLE DOES NOT BAR THEIR COPYRIGHT AS WORKS OF ART. PP. 215-217. 

(C)  THE INTENDED OR ACTUAL USE IN INDUSTRY OF AN ARTICLE ELIGIBLE
FOR COPYRIGHT DOES NOT BAR OR INVALIDATE ITS REGISTRATION.  P. 218. 

(D)  THE SUBSEQUENT REGISTRATION OF A WORK OF ART PUBLISHED AS AN
ELEMENT IN A MANUFACTURED ARTICLE IS NOT A MISUSE OF THE COPYRIGHT. 
PP. 218-219. 

MAZER ET AL., DOING BUSINESS AS JUNE LAMP MANUFACTURING CO., V. STEIN ET
AL., DOING BUSINESS AS REGLOR OF CALIFORNIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

RESPONDENTS SUED PETITIONERS FOR COPYRIGHT INFRINGEMENT, AND THE
DISTRICT COURT DISMISSED THE COMPLAINT.  111 F. SUPP. 359.  THE COURT
OF APPEALS REVERSED.  204 F.2D 472.  THIS COURT GRANTED CERTIORARI. 
346 U.S. 811.  AFFIRMED, P. 219. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE VALIDITY OF COPYRIGHTS OBTAINED BY RESPONDENTS
FOR STATUETTES OF MALE AND FEMALE DANCING FIGURES MADE OF SEMIVITREOUS
CHINA.  THE CONTROVERSY CENTERS AROUND THE FACT THAT ALTHOUGH
COPYRIGHTED AS "WORKS OF ART," THE STATUETTES WERE INTENDED FOR USE AND
USED AS BASES FOR TABLE LAMPS, WITH ELECTRIC WIRING, SOCKETS AND LAMP
SHADES ATTACHED. 

RESPONDENTS ARE PARTNERS IN THE MANUFACTURE AND SALE OF ELECTRIC
LAMPS.  ONE OF THE RESPONDENTS CREATED ORIGINAL WORKS OF SCULPTURE IN
THE FORM OF HUMAN FIGURES BY TRADITIONAL CLAY-MODEL TECHNIQUE.  FROM
THIS MODEL, A PRODUCTION MOLD FOR CASTING COPIES WAS MADE.  THE
RESULTING STATUETTES, WITHOUT ANY LAMP COMPONENTS ADDED, WERE SUBMITTED
BY THE RESPONDENTS TO THE COPYRIGHT OFFICE FOR REGISTRATION AS "WORKS
OF ART" OR REPRODUCTIONS THEREOF UNDER SEC. 5(G) OR SEC. 5(H) OF THE
COPYRIGHT LAW, (FN1) AND CERTIFICATES OF REGISTRATION ISSUED.  SALES
(PUBLICATION IN ACCORDANCE WITH THE STATUTE) AS FULLY EQUIPPED LAMPS
PRECEDED THE APPLICATIONS FOR COPYRIGHT REGISTRATION OF THE
STATUETTES.  17 U.S.C.  (SUPP. V, 1952) SECS. 10, 11, 13, 209; RULES
AND REGULATIONS, 37 CFR, 1949, SECS. 202.8 AND 202.9.  THEREAFTER, THE
STATUETTES WERE SOLD IN QUANTITY THROUGHOUT THE COUNTRY BOTH AS LAMP
BASES AND AS STATUETTES.  THE SALES IN LAMP FORM ACCOUNTED FOR ALL BUT
AN INSIGNIFICANT PORTION OF RESPONDENTS' SALES. 

PETITIONERS ARE PARTNERS AND, LIKE RESPONDENTS, MAKE AND SELL LAMPS. 
WITHOUT AUTHORIZATION, THEY COPIED THE STATUETTES, EMBODIED THEM IN
LAMPS AND SOLD THEM. 

THE INSTANT CASE IS ONE IN A SERIES OF REPORTED SUITS BROUGHT BY
RESPONDENTS AGAINST VARIOUS ALLEGED INFRINGERS OF THE COPYRIGHTS, ALL
PRESENTING THE SAME OR A SIMILAR QUESTION.  (FN2)  BECAUSE OF
CONFLICTING DECISIONS, (FN3) WE GRANTED CERTIORARI.  346 U.S. 811.  IN
THE PRESENT CASE RESPONDENTS SUED PETITIONERS FOR INFRINGEMENT IN
MARYLAND.  STEIN V. MAZER, 111 F. SUPP. 359.  FOLLOWING THE EXPERT
DECISION AND REJECTING THE REASONING OF THE DISTRICT COURT IN THE
ROSENTHAL OPINION, BOTH REFERRED TO IN THE PRECEDING NOTE, THE DISTRICT
COURT DISMISSED THE COMPLAINT.  THE COURT OF APPEALS REVERSED AND HELD
THE COPYRIGHTS VALID.  STEIN V. MAZER, 204 F.2D 472.  (FN4)  IT SAID:
"A SUBSEQUENT UTILIZATION OF A WORK OF ART IN AN ARTICLE OF MANUFACTURE
IN NO WAY AFFECTS THE RIGHT OF THE COPYRIGHT OWNER TO BE PROTECTED
AGAINST INFRINGEMENT OF THE WORK OF ART ITSELF."  ID., AT 477. 

PETITIONERS, CHARGED BY THE PRESENT COMPLAINT WITH INFRINGEMENT OF
RESPONDENTS' COPYRIGHTS OF REPRODUCTIONS OF THEIR WORKS OF ART, SEEK
HERE A REVERSAL OF THE COURT OF APPEALS DECREE UPHOLDING THE
COPYRIGHTS.  PETITIONERS IN THEIR PETITION FOR CERTIORARI PRESENT A
SINGLE QUESTION: 

"CAN STATUETTES BE PROTECTED IN THE UNITED STATES BY COPYRIGHT WHEN
THE COPYRIGHT APPLICANT INTENDED PRIMARILY TO USE THE STATUETTES IN THE
FORM OF LAMP BASES TO BE MADE AND SOLD IN QUANTITY AND CARRIED THE
INTENTIONS INTO EFFECT? 

"STRIPPED DOWN TO ITS ESSENTIALS, THE QUESTION PRESENTED IS:  CAN A
LAMP MANUFACTURER COPYRIGHT HIS LAMP BASES?" 

THE FIRST PARAGRAPH ACCURATELY SUMMARIZES THE ISSUE.  THE LAST GIVES
IT A QUIRK THAT UNJUSTIFIABLY, WE THINK, BROADENS THE CONTROVERSY.  THE
CASE REQUIRES AN ANSWER, NOT AS TO A MANUFACTURER'S RIGHT TO REGISTER A
LAMP BASE BUT AS TO AN ARTIST'S RIGHT TO COPYRIGHT A WORK OF ART
INTENDED TO BE REPRODUCED FOR LAMP BASES.  AS PETITIONERS SAY IN THEIR
BRIEF, THEIR CONTENTION "QUESTIONS THE VALIDITY OF THE COPYRIGHT BASED
UPON THE ACTIONS OF THE RESPONDENTS."  PETITIONERS QUESTION THE
VALIDITY OF A COPYRIGHT OF A WORK OF ART FOR "MASS" PRODUCTION. 
"REPRODUCTION OF A WORK OF ART" DOES NOT MEAN TO THEM UNLIMITED
REPRODUCTION.  THEIR POSITION IS THAT A COPYRIGHT DOES NOT COVER
INDUSTRIAL REPRODUCTION OF THE PROTECTED ARTICLE.  THUS THEIR REPLY
BRIEF STATES:  "WHEN AN ARTIST BECOMES A MANUFACTURER OR A DESIGNER FOR
A MANUFACTURER HE IS SUBJECT TO THE LIMITATIONS OF DESIGN PATENTS AND
DESERVES NO MORE CONSIDERATION THAN ANY OTHER MANUFACTURER OR
DESIGNER." 

IT IS NOT THE RIGHT TO COPYRIGHT AN ARTICLE THAT COULD HAVE UTILITY
UNDER SECS. 5(G) AND (H), NOTE 1, SUPRA, THAT PETITIONERS OPPOSE. 
THEIR BRIEF ACCEPTS THE COPYRIGHTABILITY OF THE GREAT CARVED GOLDEN
SALTCELLAR OF CELLINI BUT ADDS: 

"IF, HOWEVER, CELLINI DESIGNED AND MANUFACTURED THIS ITEM IN QUANTITY
SO THAT THE GENERAL PUBLIC COULD HAVE SALT CELLARS, THEN AN ENTIRELY
DIFFERENT CONCLUSION WOULD BE REACHED.  IN SUCH CASE, THE SALT CELLAR
BECOMES AN ARTICLE OF MANUFACTURE HAVING UTILITY IN ADDITION TO ITS
ORNAMENTAL VALUE AND WOULD THEREFORE HAVE TO BE PROTECTED BY DESIGN
PATENT."  IT IS PUBLICATION AS A LAMP AND REGISTRATION AS A STATUE TO
GAIN A MONOPOLY IN MANUFACTURE THAT THEY ASSERT IS SUCH A MISUSE OF
COPYRIGHT AS TO MAKE THE REGISTRATION INVALID. 

NO UNFAIR COMPETITION QUESTION IS PRESENTED.  THE CONSTITUTIONAL
POWER OF CONGRESS TO CONFER COPYRIGHT PROTECTION ON WORKS OF ART OR
THEIR REPRODUCTIONS IS NOT QUESTIONED.  (FN5)  PETITIONERS ASSUME, AS
CONGRESS HAS IN ITS ENACTMENTS AND AS DO WE, THAT THE CONSTITUTIONAL
CLAUSE EMPOWERING LEGISLATION "TO PROMOTE THE PROGRESS OF SCIENCE AND
USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO AUTHORS AND INVENTORS THE
EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS AND DISCOVERIES," ART. I,
SEC. 8, CL. 8, INCLUDES WITHIN THE TERM "AUTHORS" THE CREATOR OF A
PICTURE OR A STATUE.  THE COURT'S CONSIDERATION WILL BE LIMITED TO THE
QUESTION PRESENTED BY THE PETITION FOR THE WRIT OF CERTIORARI.  (FN6)
IN RECENT YEARS THE QUESTION AS TO UTILITARIAN USE OF COPYRIGHTED
ARTICLES HAS BEEN MUCH DISCUSSED.  (FN7) 

IN ANSWERING THAT ISSUE, A REVIEW OF THE DEVELOPMENT OF COPYRIGHT
COVERAGE WILL MAKE CLEAR THE PURPOSE OF THE CONGRESS IN ITS COPYRIGHT
LEGISLATION.  IN 1790 THE FIRST CONGRESS CONFERRED A COPYRIGHT
LEGISLATION.  IN 1790 THE FIRST CONGRESS CONFERRED A COPYRIGHT ON
"AUTHORS OF ANY MAP, CHART, BOOK OR BOOKS ALREADY PRINTED."  (FN8)
LATER, DESIGNING, ENGRAVING AND ETCHING WERE INCLUDED; (FN9) IN 1831
MUSICAL COMPOSITIONS; (FN10) DRAMATIC COMPOSITIONS IN 1856; (FN11) AND
PHOTOGRAPHS AND NEGATIVES THEREOF IN 1865.  (FN12) 

THE ACT OF 1870 DEFINED COPYRIGHTABLE SUBJECT MATTER AS: 

"  ...  ANY BOOK, MAP, CHART, DRAMATIC OR MUSICAL COMPOSITION,
ENGRAVING, CUT, PRINT, OR PHOTOGRAPH OR NEGATIVE THEREOF, OR OF A
PAINTING, DRAWING, CHROMO, STATUE, STATUARY, AND OF MODELS OR DESIGNS
INTENDED TO BE PERFECTED AS WORKS OF THE FINE ARTS."  (FN13) 

THE ITALICIZED PART ADDED THREE-DIMENSIONAL WORK OF ART TO WHAT HAD
BEEN PROTECTED PREVIOUSLY.  (FN14)  IN 1909 CONGRESS AGAIN ENLARGED THE
SCOPE OF THE COPYRIGHT STATUTE.  (FN15)  THE NEW ACT PROVIDED IN SEC.
4: 

"THAT THE WORKS FOR WHICH COPYRIGHT MAY BE SECURED UNDER THIS ACT
SHALL INCLUDE ALL THE WRITINGS OF AN AUTHOR."  (FN16) 

SOME WRITERS INTERPRET THIS SECTION AS BEING COEXTENSIVE WITH THE
CONSTITUTIONAL GRANT, (FN17) BUT THE HOUSE REPORT, WHILE INCONCLUSIVE,
INDICATES THAT IT WAS "DECLARATORY OF EXISTING LAW" ONLY.  (FN18)
MARGIN WITH SUBSEQUENT ADDITIONS NOT MATERIAL TO THIS DECISION.  (FN19)
SIGNIFICANT FOR OUR PURPOSES WAS THE DELETION OF THE FINE-ARTS CLAUSE
OF THE 1870 ACT.  (FN20)  VERBAL DISTINCTIONS BETWEEN PURELY AESTHETIC
ARTICLES AND USEFUL WORKS OF ART ENDED INSOFAR AS THE STATUTORY
COPYRIGHT LANGUAGE IS CONCERNED.  (FN21) 

THE PRACTICE OF THE COPYRIGHT OFFICE, UNDER THE 1870 AND 1874 ACTS
AND BEFORE THE 1909 ACT, WAS TO ALLOW REGISTRATION "AS WORKS OF THE
FINE ARTS" OF ARTICLES OF THE SAME CHARACTER AS THOSE OF RESPONDENTS
NOW UNDER CHALLENGE.  SEVEN EXAMPLES APPEAR IN THE GOVERNMENT'S BRIEF
AMICUS CURIAE.  (FN22)  IN 1910, INTERPRETING THE 1909 ACT, THE
PERTINENT COPYRIGHT REGULATIONS READ AS SHOWN IN THE MARGIN.  (FN23)
BECAUSE, AS EXPLAINED BY THE GOVERNMENT, THIS REGULATION "MADE NO
REFERENCE TO ARTICLES WHICH MIGHT FAIRLY BE CONSIDERED WORKS OF ART
ALTHOUGH THEY MIGHT ALSO SERVE A USEFUL PURPOSE," IT WAS REWORDED IN
1917 AS SHOWN BELOW.  (FN24)  THE AMICUS BRIEF GIVES SIXTY EXAMPLES
SELECTED AT FIVE-YEAR INTERVALS, 1912-1952, SAID TO BE TYPICAL OF
REGISTRATIONS OF WORKS OF ART POSSESSING UTILITARIAN ASPECTS.  (FN25)
THE CURRENT PERTINENT REGULATION, PUBLISHED IN 37 CFR , 1949, SEC.
202.8, READS THUS: 

"WORKS OF ART (CLASS G) - (A) IN GENERAL.  THIS CLASS INCLUDES WORKS
OF ARTISTIC CRAFTSMANSHIP, IN SO FAR AS THEIR FORM BUT NOT THEIR
MECHANICAL OR UTILITARIAN ASPECTS ARE CONCERNED, SUCH AS ARTISTIC
JEWELRY, ENAMELS, GLASSWARE, AND TAPESTRIES, AS WELL AS ALL WORKS
BELONGING TO THE FINE ARTS, SUCH AS PAINTINGS, DRAWINGS AND SCULPTURE
...  ." 

SO WE HAVE A CONTEMPORANEOUS AND LONG-CONTINUED CONSTRUCTION OF THE
STATUTES BY THE AGENCY CHARGED TO ADMINISTER THEM THAT WOULD ALLOW THE
REGISTRATION OF SUCH A STATUETTE AS IS IN QUESTION HERE.  (FN26) 

THIS COURT ONCE ESSAYED TO FIX THE LIMITS OF THE FINE ARTS.  (FN27)
THAT EFFORT NEED NOT BE APPRAISED IN RELATION TO THIS COPYRIGHT ISSUE. 
IT IS CLEAR CONGRESS INTENDED THE SCOPE OF THE COPYRIGHT STATUTE TO
INCLUDE MORE THAN THE TRADITIONAL FINE ARTS.  HERBERT PUTNAM, ESQ.,
THEN LIBRARIAN OF CONGRESS AND ACTIVE IN THE MOVEMENT TO AMEND THE
COPYRIGHT LAWS, TOLD THE JOINT MEETING OF THE HOUSE AND SENATE
COMMITTEES: 

"THE TERM 'WORKS OF ART' IS DELIBERATELY INTENDED AS A BROADER
SPECIFICATION THAN 'WORKS OF THE FINE ARTS' IN THE PRESENT STATUTE WITH
THE IDEA THAT THERE IS SUBJECT-MATTER (FOR INSTANCE, OF APPLIED DESIGN,
NOT YET WITHIN THE PROVINCE OF DESIGN PATENTS), WHICH MAY PROPERLY BE
ENTITLED TO PROTECTION UNDER THE COPYRIGHT LAW."  (FN28) 

THE SUCCESSIVE ACTS, THE LEGISLATIVE HISTORY OF THE 1909 ACT AND THE
PRACTICE OF THE COPYRIGHT OFFICE UNITE TO SHOW THAT "WORKS OF ART" AND
"REPRODUCTIONS OF WORKS OF ART" ARE TERMS THAT WERE INTENDED BY
CONGRESS TO INCLUDE THE AUTHORITY TO COPYRIGHT THESE STATUETTES. 
INDIVIDUAL PERCEPTION OF THE BEAUTIFUL IS TOO VARIED A POWER TO PERMIT
A NARROW OR RIGID CONCEPT OF ART. AS A STANDARD WE CAN HARDLY DO BETTER
THAN THE WORDS OF THE PRESENT REGULATION, SEC. 202.8, SUPRA, NAMING THE
THINGS THAT APPERTAIN TO THE ARTS.  THEY MUST BE ORIGINAL, THAT IS, THE
AUTHOR'S TANGIBLE EXPRESSION OF HIS IDEAS.  COMPARE BURROW-GILES
LITHOGRAPHIC CO. V. SARONY, 111 U.S. 53, 59-60.  SUCH EXPRESSION,
WHETHER METICULOUSLY DELINEATING THE MODEL OR MENTAL IMAGE OR CONVEYING
THE MEANING BY MODERNISTIC FORM OR COLOR, IS COPYRIGHTABLE.  (FN29)
WHAT CASES THERE ARE CONFIRM THIS COVERAGE OF THE STATUTE.   (FN30) 

THE CONCLUSION THAT THE STATUTES HERE IN ISSUE MAY BE COPYRIGHTED
GOES FAR TO SOLVE THE QUESTION WHETHER THEIR INTENDED REPRODUCITON AS
LAMP STANDS BARS OR INVALIDATES THEIR REGISTRATION.  THIS DEPENDS
SOLELY ON STATUTORY INTERPRETATION.  CONGRESS MAY AFTER PUBLICATION
PROTECT BY COPYRIGHT ANY WRITING OF AN AUTHOR.  ITS STATUTE CREATES THE
COPYRIGHT.  (FN31)  IT DID NOT EXIST AT COMMON LAW EVEN THOUGH HE HAD A
PROPERTY RIGHT IN HIS UNPUBLISHED WORK.  (FN32) 

BUT PETITIONERS ASSERT THAT CONGRESSIONAL ENACTMENT OF THE DESIGN
PATENT LAWS SHOULD BE INTERPRETED AS DENYING PROTECTION TO ARTISTIC
ARTICLES EMBODIED OR REPRODUCED IN MANUFACTURED ARTICLES.  (FN33)  THEY
SAY: 

"FUNDAMENTALLY AND HISTORICALLY, THE COPYRIGHT OFFICE IS THE
REPOSITORY OF WHAT EACH CLAIMANT CONSIDERS TO BE A CULTURAL TREASURE,
WHEREAS THE PATENT OFFICE IS THE REPOSITORY OF WHAT EACH APPLICANT
CONSIDERS TO BE EVIDENCE OF THE ADVANCE IN INDUSTRIAL AND TECHNOLOGICAL
FIELDS." 

THEIR ARGUMENT IS THAT DESIGN PATENTS REQUIRE THE CRITICAL
EXAMINATION GIVEN PATENTS TO PROTECT THE PUBLIC AGAINST MONOPOLY. 
ATTENTION IS CALLED TO GORHAM CO. V. WHITE, 14 WALL.  511, INTERPRETING
THE DESIGN PATENT LAW OF 1842, 5 STAT. 544, GRANTING A PATENT TO ANYONE
WHO BY "THEIR OWN INDUSTRY, GENIUS, EFFORTS, AND EXPENSE, MAY HAVE
INVENTED OR PRODUCED ANY NEW AND ORIGINAL DESIGN FOR A MANUFACTURE  ...
."  A PATTERN FOR FLAT SILVER WAS THERE UPHELD.  (FN34)  THE
INTERMEDIATE AND PRESENT LAW DIFFERS LITTLE.  "WHOEVER INVENTS ANY NEW,
ORIGINAL AND ORNAMENTAL DESIGN FOR AN ARTICLE OF MANUFACTURE MAY OBTAIN
A PATENT THEREFOR,  ...  " SUBJECT GENERALLY TO THE PROVISIONS
CONCERNING PATENTS FOR INVENTION.  SEC. 171, 66 STAT. 805.  AS
PETITIONER SEES THE EFFECT OF THE DESIGN PATENT LAW: 

"IF AN INDUSTRIAL DESIGNER CAN NOT SATISFY THE NOVELTY REQUIREMENTS
OF THE DESIGN PATENT LAWS, THEN HIS DESIGN AS USED ON ARTICLES OF
MANUFACTURE CAN BE COPIED BY ANYONE." 

PETITIONER HAS FURNISHED THE COURT A BOOKLET OF NUMEROUS DESIGN
PATENTS FOR STATUETTES, BASES FOR TABLE LAMPS AND SIMILAR ARTICLES FOR
MANUFACTURE, QUITE INDISTINGUISHABLE IN TYPE FROM THE COPYRIGHTED
STATUETTES HERE IN ISSUE.  (FN35)  PETITIONER URGES THAT OVERLAPPING OF
PATENT AND COPYRIGHT LEGISLATION SO AS TO GIVE AN AUTHOR OR INVENTOR A
CHOICE BETWEEN PATENTS AND COPYRIGHTS SHOULD NOT BE PERMITTED.  WE
ASSUME PETITIONER TAKES THE POSITION THAT PROTECTION FOR A STATUETTE
FOR INDUSTRIAL USE CAN ONLY BE OBTAINED BY PATENT, IF ANY PROTECTION
CAN BE GIVEN.  (FN36)    AS WE HAVE HELD THE STATUETTES HERE INVOLVED
COPYRIGHTABLE, WE NEED NOT DECIDE THE QUESTION OF THEIR PATENTABILITY. 
THOUGH OTHER COURTS HAVE PASSED UPON THE ISSUE AS TO WHETHER ALLOWANCE
BY THE ELECTION OF THE AUTHOR OR PATENTEE OF ONE BARS A GRANT OF THE
OTHER, WE DO NOT.  (FN37)  WE DO HOLD THAT THE PATENTABILITY OF THE
STATUETTES, FITTED AS LAMPS OR UNFITTED, DOES NOT BAR COPYRIGHT AS
WORKS OF ART. NEITHER THE COPYRIGHT STATUTE NOR ANY OTHER SAYS THAT
BECAUSE A THINK IS PATENTABLE IT MAY NOT BE COPYRIGHTED.  WE SHOULD NOT
SO HOLD.  (FN38) 

UNLIKE A PATENT, A COPYRIGHT GIVES NO EXCLUSIVE RIGHT TO THE ART
DISCLOSED; PROTECTION IS GIVEN ONLY TO THE EXPRESSION OF THE IDEA - NOT
THE IDEA ITSELF.  (FN39)  THUS, IN BAKER V. SELDEN, 101 U.S. 99, THE
COURT HELD THAT A COPYRIGHTED BOOK ON A PECULIAR SYSTEM OF BOOKKEEPING
WAS NOT INFRINGED BY A SIMILAR BOOK USING A SIMILAR PLAN WHICH ACHIEVED
SIMILAR RESULTS WHERE THE ALLEGED INFRINGER MADE A DIFFERENT
ARRANGEMENT OF THE COLUMNS AND USED DIFFERENT HEADINGS.  THE
DISTINCTION IS ILLUSTRATED IN FRED FISHER, INC. V. DILLINGHAM, 298 F.
145, 151, WHEN THE COURT SPEAKS OF TWO MEN, EACH A PERFECTIONIST,
INDEPENDENTLY MAKING MAPS OF THE SAME TERRITORY.  THOUGH THE MAPS ARE
IDENTICAL, EACH MAY OBTAIN THE EXCLUSIVE RIGHT TO MAKE COPIES OF HIS
OWN PARTICULAR MAP, AND YET NEITHER WILL INFRINGE THE OTHER'S
COPYRIGHT.  LIKEWISE A COPYRIGHTED DIRECTORY IS NOT INFRINGED BY A
SIMILAR DIRECTORY WHICH IS THE PRODUCT OF INDEPENDENT WORK.  (FN40)
THE COPYRIGHT PROTECTS ORIGINALITY RATHER THAN NOVELTY OR INVENTION -
CONFERRING ONLY "THE SOLE RIGHT OF MULTIPLYING COPIES."  (FN41)  ABSENT
COPYING THERE CAN BE NO INFRINGEMENT OF COPYRIGHT.  (FN42) THUS,
RESPONDENTS MAY NOT EXCLUDE OTHERS FROM USING STATUETTES OF HUMAN
FIGURES IN TABLE LAMPS; THEY MAY ONLY PREVENT USE OF COPIES OF THEIR
STATUETTES AS SUCH OR AS INCORPORATED IN SOME OTHER ARTICLE. 
REGULATION SEC. 202.8, SUPRA, MAKES CLEAR THAT ARTISTIC ARTICLES ARE
PROTECTED IN "FORM BUT NOT THEIR MECHANICAL OR UTILITARIAN ASPECTS." 
SEE STEIN V. ROSENTHAL, 103 F. SUPP. 227, 231.  THE DICHOTOMY OF
PROTECTION FOR THE AESTHETIC IS NOT BEAUTY AND UTILITY BUT ART FOR THE
COPYRIGHT AND THE INVENTION OF ORIGINAL AND ORNAMENTAL DESIGN FOR
DESIGN PATENTS.  WE FIND NOTHING IN THE COPYRIGHT STATUTE TO SUPPORT
THE ARGUMENT THAT THE INTENDED USE OR USE IN INDUSTRY OF AN ARTICLE
ELIGIBLE FOR COPYRIGHT BARS OR INVALIDATES ITS REGISTRATION.  WE DO NOT
READ SUCH A LIMITATION INTO THE COPYRIGHT LAW. 

NOR DO WE THINK THE SUBSEQUENT REGISTRATION OF A WORK OF ART
PUBLISHED AS AN ELEMENT IN A MANUFACTURED ARTICLE, IS A MISUSE OF THE
COPYRIGHT.  THIS IS NOT DIFFERENT FROM THE REGISTRATION OF A STATUETTE
AND ITS LATER EMBODIMENT IN AN INDUSTRIAL ARTICLE. 

"THE COPYRIGHT LAW, LIKE THE PATENT STATUTES, MAKES REWARD TO THE
OWNER A SECONDARY CONSIDERATION."  UNITED STATES V. PARAMOUNT PICTURES,
334 U.S. 131, 158.  HOWEVER, IT IS "INTENDED DEFINITELY TO GRANT
VALUABLE, ENFORCEABLE RIGHTS TO AUTHORS, PUBLISHERS, ETC., WITHOUT
BURDENSOME REQUIREMENTS; 'TO AFFORD GREATER ENCOURAGEMENT TO THE
PRODUCTION OF LITERARY OR ARTISTIC WORKS OF LASTING BENEFIT TO THE
WORLD.'"  WASHINGTONIAN CO. V. PEARSON, 306 U.S. 30, 36. 

THE ECONOMIC PHILOSOPHY BEHIND THE CLAUSE EMPOWERING CONGRESS TO
GRANT PATENTS AND COPYRIGHTS IS THE CONVICTION THAT ENCOURAGEMENT OF
INDIVIDUAL EFFORT BY PERSONAL GAIN IS THE BEST WAY TO ADVANCE PUBLIC
WELFARE THROUGH THE TALENTS OF AUTHORS AND INVENTORS IN "SCIENCE AND
USEFUL ARTS." SACRIFICIAL DAYS DEVOTED TO SUCH CREATIVE ACTIVITIES
DESERVE REWARDS COMMENSURATE WITH THE SERVICES RENDERED.  AFFIRMED. 

FN1  17 U.S.C. (SUPP. V, 1952) SEC. 4: 

"THE WORKS FOR WHICH COPYRIGHT MAY BE SECURED UNDER THIS TITLE SHALL
INCLUDE ALL THE WRITINGS OF AN AUTHOR." 

ID., SEC. 5: 

"THE APPLICATION FOR REGISTRATION SHALL SPECIFY TO WHICH OF THE
FOLLOWING CLASSES THE WORK IN WHICH COPYRIGHT IS CLAIMED BELONGS: 

     *         *  *         *         * 

"(G)  WORKS OF ART; MODELS OR DESIGNS FOR WORKS OF ART. 

"(H)  REPRODUCTIONS OF A WORK OF ART." 

ERRORS OF CLASSIFICATION ARE IMMATERIAL.  SEE NOTE 19, INFRA. 

FN2  AN UNREPORTED ACTION, STEIN V. ZUCKERMAN AND DUBESHTER, WAS
PENDING IN THE EASTERN DISTRICT OF NEW YORK.  NOTE, 66 HARV. L. REV.
877, 878, N. 8.  WE ARE ADVISED THAT IT WAS DISMISSED BY CONSENT
FEBRUARY 24, 1953. 

FN3  STEIN V. EXPERT LAMP CO., 188 F.2D 611.  STEIN V. EXPERT LAMP
CO., 96 F. SUPP. 97, WAS THE FIRST ACTION BROUGHT.  THROUGH AN ACCIDENT
IN PRESENTATION, THE TRIAL COURT DETERMINED THE CASE AS THOUGH THE
COPYRIGHT WAS ON A STATUETTE WITH LAMP ATTACHMENTS.  IT HELD THE
STATUETTES NOT COPYRIGHTABLE BECAUSE THIS "WAS EVIDENCE OF THE
PRACTICAL USE" INTENDED.  ID., AT 98.  ON PETITION FOR RECONSIDERATION,
IT HELD THE PRESENCE OR ABSENCE OF THE ATTACHMENTS IMMATERIAL.  STEIN
V. MAZER, 111 F. SUPP. 359, 361; ROSENTHAL V. STEIN, 205 F.2D 633,
634.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED ON THE
GROUND THAT THE COPYRIGHT ACT "DOES NOT REFER TO ARTICLES OF
MANUFACTURE HAVING A UTILITARIAN PURPOSE NOR DOES IT PROVIDE FOR A
PREVIOUS EXAMINATION BY A PROPER TRIBUNAL AS TO THE ORIGINALITY OF THE
MATTER OFFERED FOR COPYRIGHT  ...  ."  STEIN V. EXPERT LAMP CO., 188
F.2D 611, 613. 

STEIN V. ROSENTHAL, 103 F. SUPP. 227, WAS A SECOND INFRINGEMENT
CASE.  IT WAS THERE HELD "PROTECTION IS NOT DISSIPATED BY TAKING AN
UNADULTERATED OBJECT OF ART AS COPYRIGHTED AND INTEGRATING IT INTO
COMMERCIALLY VALUABLE MERCHANDISE."  ID., AT 230.  ON APPEAL, THE COURT
OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED, SAYING "THE THEORY THAT THE
USE OF A COPYRIGHTED WORK OF ART LOSES ITS STATUS AS A WORK OF ART IF
AND WHEN IT IS PUT TO A FUNCTIONAL USE HAS NO BASIS IN THE WORDING OF
THE COPYRIGHT LAWS AND THERE IS NOTHING IN THE DESIGN-PATENT LAWS WHICH
EXCLUDES A WORK OF ART FROM THE OPERATION OF THE COPYRIGHT LAWS." 
ROSENTHAL V. STEIN, 205 F.2D 633-635. 

IN STEIN V. BENADERET, 109 F. SUPP. 364, 365, A DISTRICT COURT OF
MICHIGAN HELD THAT IT IS THE "INTENT AND PURPOSE" OF THE DESIGNER WHICH
DETERMINES WHETHER AN OBJECT IS COPYRIGHTABLE AS A WORK OF ART. THE
COURT SAID PLAINTIFFS SHOULD HAVE APPLIED FOR A DESIGN PATENT AND HELD
FOR DEFENDANTS.  AN APPEAL IS PENDING NOW IN THE COURT OF APPEALS FOR
THE SIXTH CIRCUIT. 

THE OPINIONS IN THE ABOVE CASES AND THOSE OF THE DISTRICT COURT AND
THE COURT OF APPEALS IN THE PRESENT LITIGATION DESERVE CAREFUL
READING. 

FN4  IN THIS CASE THE REGISTER OF COPYRIGHTS PARTICIPATED AS AMICUS
CURIAE AND SUPPORTED RESPONDENTS.  THROUGH THE SOLICITOR GENERAL HE HAS
ALSO FILED A BRIEF IN THIS COURT, AND PARTICIPATED IN THE ORAL
ARGUMENT.  346 U.S. 882. 

FN5  WE DO NOT REACH FOR CONSTITUTIONAL QUESTIONS NOT RAISED BY THE
PARTIES.  CHICAGO & G.T.R. CO. V. WELLMAN, 143 U.S. 339, 345; NEW YORK
EX REL. ROSEVALE REALTY CO. V. KLEINERT, 268 U.S. 646, 651; C.I.O. V.
MCADORY, 325 U.S. 472, 475.  THE FACT THAT THE ISSUE WAS MENTIONED IN
ARGUMENT DOES NOT BRING THE QUESTION PROPERLY BEFORE US.  HERBRING V.
LEE, 280 U.S. 111, 117. 

NO QUESTION OF OUR JURISDICTION EMERGES.  CHICOT COUNTY DIST. V.
BANK, 308 U.S. 371.  COMPARE KALB V. FEUERSTEIN, 308 U.S. 433, AND
CONTINENTAL ILLINOIS NAT. BANK & TRUST CO. V. CHICAGO, R.I.&P.R. CO.,
294 U.S. 648, 667. 

COMPARE ON THE CONSTITUTIONAL QUESTION THE FOLLOWING:  BURROW-GILES
LITHOGRAPHIC CO. V. SARONY, 111 U.S. 53, UPHELD THE COPYRIGHT OF A
PHOTOGRAPH UNANIMOUSLY.  IT WAS SAID:  "BY WRITINGS IN THAT CLAUSE IS
MEANT THE LITERARY PRODUCTIONS OF THOSE AUTHORS, AND CONGRESS VERY
PROPERLY HAS DECLARED THESE TO INCLUDE ALL FORMS OF WRITING, PRINTING,
ENGRAVING, ETCHING, & C., BY WHICH THE IDEAS IN THE MIND OF THE AUTHOR
ARE GIVEN VISIBLE EXPRESSION."  ID., AT 58. 

"THESE FINDINGS, WE THINK, SHOW THIS PHOTOGRAPH TO BE AN ORIGINAL
WORK OF ART, THE PRODUCT OF PLAINTIFF'S INTELLECTUAL INVENTION, OF
WHICH PLAINTIFF IS THE AUTHOR, AND OF A CLASS OF INVENTIONS FOR WHICH
THE CONSTITUTION INTENDED THAT CONGRESS SHOULD SECURE TO HIM THE
EXCLUSIVE RIGHT TO USE, PUBLISH AND SELL, AS IT HAS DONE BY SECTION
4952 OF THE REVISED STATUTES."  ID., AT 60. 

BLEISTEIN V. DONALDSON LITHOGRAPHING CO., 188 U.S. 239, 249-250,
UPHELD A COPYRIGHT ON CIRCUS POSTERS.  THE COURT SAID: 

"WE SHALL DO NO MORE THAN MENTION THE SUGGESTION THAT PAINTING AND
ENGRAVING UNLESS FOR A MECHANICAL END ARE NOT AMONG THE USEFUL ARTS,
THE PROGRESS OF WHICH CONGRESS IS EMPOWERED BY THE CONSTITUTION TO
PROMOTE.  THE  CONSTITUTION DOES NOT LIMIT THE USEFUL TO THAT WHICH
SATISFIES IMMEDIATE BODILY NEEDS  ...  .  PERSONALITY ALWAYS CONTAINS
SOMETHING UNIQUE.  IT EXPRESSES ITS SINGULARITY EVEN IN HANDWRITING,
AND A VERY MODEST GRADE OF ART HAS IN IT SOMETHING IRREDUCIBLE, WHICH
IS ONE MAN'S ALONE.  THAT SOMETHING HE MAY COPYRIGHT UNLESS THERE IS A
RESTRICTION IN THE WORDS OF THE ACT." 

KALEM CO. V. HARPER BROS., 222 U.S. 55, 63, INVOLVED PIRATING BY
MOTION PICTURES OF THE COPYRIGHTED DRAMATIC RIGHTS OF A BOOK.  THIS
COURT SAID: 

"IT IS ARGUED THAT THE LAW CONSTRUED AS WE HAVE CONSTRUED IT GOES
BEYOND THE POWER CONFERRED UPON CONGRESS BY THE CONSTITUTION, TO SECURE
TO AUTHORS FOR A LIMITED TIME THE EXCLUSIVE RIGHT TO THEIR WRITINGS. 
ART. I, SEC. 8, CL. 8.  IT IS SUGGESTED THAT TO EXTEND THE COPYRIGHT TO
A CASE LIKE THIS IS TO EXTEND IT TO THE IDEAS AS DISTINGUISHED FROM THE
WORDS IN WHICH THOSE IDEAS ARE CLOTHED.  BUT THERE IS NO ATTEMPT TO
MAKE A MONOPOLY OF THE IDEAS EXPRESSED.  THE LAW CONFINES ITSELF TO A
PARTICULAR, COGNATE AND WELL KNOWN FORM OF REPRODUCTION.  IF TO THAT
EXTENT A GRANT OF MONOPOLY IS THOUGHT A PROPER WAY TO SECURE THE RIGHT
TO THE WRITINGS THIS COURT CANNOT SAY THAT CONGRESS WAS WRONG." 

SEE ALSO SCHREIBER V. THORNTON, 17 F. 603, REVERSED ON OTHER GROUNDS,
THORNTON V. SCHREIBER, 124 U.S. 612. 

SEE FENNING, THE ORIGIN OF THE PATENT AND COPYRIGHT CLAUSE OF THE
CONSTITUTION, 17 GEO.  L.J. 109; 2 STORY, CONSTITUTION (5TH ED.), C.
XIX. 

TRADE-MARK CASES, 100 U.S. 82, 94.  CONGRESS HAD PASSED A TRADE-MARK
ACT UNDER THE PATENT AND COPYRIGHT CLAUSE.  A UNANIMOUS COURT HELD THIS
EFFORT TO PROTECT TRADE-MARKS WAS UNCONSTITUTIONAL: 

"THE ORDINARY TRADE-MARK HAS NO NECESSARY RELATION TO INVENTION OR
DISCOVERY  ...  .  IF WE SHOULD ENDEAVOR TO CLASSIFY IT UNDER THE HEAD
OF WRITINGS OF AUTHORS, THE OBJECTIONS ARE EQUALLY STRONG.  IN THIS, AS
IN REGARD TO INVENTIONS, ORIGINALITY IS REQUIRED.  AND WHILE THE WORD
WRITINGS MAY BE LIBERALLY CONSTRUED, AS IT HAS BEEN, TO INCLUDE
ORIGINAL DESIGNS FOR ENGRAVINGS, PRINTS, & C., IT IS ONLY SUCH AS ARE
ORIGINAL, AND ARE FOUNDED IN THE CREATIVE POWERS OF THE MIND.  THE
WRITINGS WHICH ARE TO BE PROTECTED ARE THE FRUITS OF INTELLECTUAL
LABOR, EMBODIED IN THE FORM OF BOOKS, PRINTS, ENGRAVINGS, AND THE
LIKE."  THE TRADE-MARK DOES NOT "DEPEND UPON NOVELTY, INVENTION,
DISCOVERY, OR ANY WORK OF THE BRAIN.  IT REQUIRES NO FANCY OR
IMAGINATION, NO GENIUS, NO LABORIOUS THOUGHT.  IT IS SIMPLY FOUNDED ON
PRIORITY OF APPROPRIATION. 

SEE AS TO COMMERCE, ID., AT 95-98; ROBERT, COMMENTARY ON THE LANHAM
TRADE-MARK ACT, 15 U.S.C.A. (SECS. 81-1113, 1948) P. 265. 

FN6  NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350, 357, N. 2;
GENERAL TALKING PICTURES CORP. V. WESTERN ELECTRIC CO., 304 U.S. 175;
CROWN C.&S. CO. V. FERDINAND GUTMANN CO., 304 U.S. 159, AND CASES
CITED; GUNNING V. COOLEY, 281 U.S. 90.  THE POLICY IS INCORPORATED IN
RULE 38(2), REVISED RULES OF THE SUPREME COURT OF THE UNITED STATES,
AND THE PRACTICE OF BRINGING "ADDITIONAL QUESTIONS INTO A CASE" HAS
BEEN CONDEMNED RECENTLY IN IRVINE V. CALIFORNIA, 347 U.S. 128, 129. 

FN7  BALL, LAW OF COPYRIGHT AND LITERARY PROPERTY (1944), 390;
HOWELL, COPYRIGHT LAW (1952), 130; 1 LADAS, THE INTERNATIONAL
PROTECTION OF LITERARY AND ARTISTIC PROPERTY (1938), 247; WEIL,
COPYRIGHT LAW (1917), 227; DERENBERG, COPYRIGHT NO-MAN'S LAND:  FRINGE
RIGHTS IN LITERARY AND ARTISTIC PROPERTY, 1953 COPYRIGHT PROBLEMS
ANALYZED (CCH), 215; POGUE, BORDERLAND - WHERE COPYRIGHT AND DESIGN
PATENT MEET, 52 MICH. L. REV. 33; NOTES, 21 GEO WASH. L. REV. 353; 66
HARV. L. REV. 877; 27 IND. L.J. 130.  SEE REPORT OF THE COPYRIGHT
COMMITTEE, BOARD OF TRADE (LONDON, OCTOBER 1952), ARTISTIC COPYRIGHT
AND INDUSTRIAL DESIGNS, 82 ET SEQ. 

FN8  1 STAT. 124. 

FN9  2 STAT. 171. 

FN10  4 STAT. 436. 

FN11  11 STAT. 139. 

FN12  13 STAT. 540.  BETWEEN 1789 AND 1904, THERE WERE IN ALL SOME
TWENTY-FIVE LAWS DEALING WITH COPYRIGHTS.  SOLBERG, COPYRIGHT IN
CONGRESS (1905), 89-93. 

FN13  SEC. 86, 16 STAT. 212.  THIS ACT ALSO VESTED CONTROL OF RECORDS
RELATING TO COPYRIGHTS IN THE LIBRARIAN OF CONGRESS AND PROVIDED HE
SHOULD ADMINISTER THE LAW.  ID., SEC. 85. 

FN14  IN CONNECTION WITH THE PHRASE IN THE 1870 ACT "INTENDED TO BE
PERFECTED AS WORKS OF THE FINE ARTS," SEE THE 1874 AMENDATORY ACT, 18
STAT. 78, AND BLEISTEIN V. DONALDSON LITHOGRAPHING CO., 188 U.S. 239. 
OF THIS ACT, THE WORDS 'ENGRAVING,' 'CUT' AND 'PRINT' SHALL BE APPLIED
ONLY TO PICTORIAL ILLUSTRATIONS OR WORKS CONNECTED WITH THE FINE ARTS,
AND NO PRINTS OR LABELS DESIGNED TO BE USED FOR ANY OTHER ARTICLES OF
MANUFACTURE SHALL BE ENTERED UNDER THE COPYRIGHT LAW, BUT MAY BE
REGISTERED IN THE PATENT OFFICE." 

THIS WAS REPEALED IN 1939 AND THE FOLLOWING ENACTED: 

"SEC. 2.  SECTION 5(K) OF THE ACT ENTITLED 'AN ACT TO AMEND AND
CONSOLIDATE THE ACTS RESPECTING COPYRIGHT' APPROVED MARCH 4, 1909, IS
HEREBY AMENDED TO READ:  '(K) PRINTS AND PICTORIAL ILLUSTRATIONS
INCLUDING PRINTS OR LABELS USED FOR ARTICLES OF MERCHANDISE.'"  53
STAT. 1142.  THIS WAS AN AMENDMENT TO SEC. 5(K) OF THE ACT OF 1909, 35
STAT. 1077.  IT IS TO BE NOTED, HOWEVER, THAT THE 1909 ACT DID NOT
CONFORM TO THE 1874 LANGUAGE, BUT THE PRESENT ACT, 17 U.S.C. (SUPP. V,
1952) SEC. 5(K), DOES CONTAIN THE AMENDATORY LANGUAGE OF THE 1939 ACT. 
FN15  S. REP. NO. 6187, 59TH CONG., 2D SESS. 4: 

"THE EXISTING STATUTES ATTEMPT SPECIFICATIONS WHICH ARE UNFORTUNATE
BECAUSE NECESSARILY IMPERFECT AND REQUIRING FREQUENT ADDITIONS TO COVER
NEW FORMS OR NEW PROCESSES.  THE BILL IN ITS GENERAL DEFINITION
SUBSTITUTES A GENERAL TERM, 'ALL THE WORKS OF AN AUTHOR.'  THE TERM
USED IN THE CONSTITUTION IS 'WRITINGS.'  BUT CONGRESS HAS ALWAYS
CONSTRUED THIS TERM BROADLY, AND IN DOING SO HAS BEEN UNIFORMLY
SUPPORTED BY JUDICIAL DECISION.  IT HAS, FOR INSTANCE, INTERPRETED IT
AS AUTHORIZING SUBJECT-MATTER SO REMOTE FROM ITS POPULAR SIGNIFICANCE
AS PHOTOGRAPHS, PAINTINGS, STATUARY, AND DRAMAS, EVEN IF UNWRITTEN. 

"AS THUS INTERPRETED, THE WORD 'WRITINGS' WOULD TO-DAY IN POPULAR
PARLANCE BE MORE NEARLY REPRESENTED BY THE WORD WORKS;' AND THIS THE
BILL ADOPTS; REFERRING BACK, HOWEVER, TO THE WORD 'WRITINGS' BY WAY OF
SAFE ANCHORAGE, BUT REGARDING THIS AS INCLUDING 'ALL FORMS OF RECORD IN
WHICH THE THOUGHT OF AN AUTHOR MAY BE RECORDED AND FROM WHICH IT MAY BE
READ OR REPRODUCED.'" 

BURROW-GILES LITHOGRAPHIC CO. V. SARONY, 111 U.S. 53 (1884), HAS HELD
THAT PHOTOGRAPHS WERE COPYRIGHTABLE IN SPITE OF THE ARGUMENT THAT THE
CONSTITUTION ONLY SPECIFIED PROTECTION FOR "WRITINGS" OF AN "AUTHOR." 
THIS DECISION MADE CLEAR THAT "WRITINGS" WAS NOT LIMITED TO CHIROGRAPHY
AND TYPOGRAPHY. 

FN16  35 STAT. 1076. 

FN17  WEIL, COPYRIGHT LAW (1917), 214; HOWELL, THE COPYRIGHT LAW (3D
ED. 1952), 8. 

FN18  H.R. REP. NO. 2222, 60TH CONG., 2D SESS. 10.  THE REPORT IS NOT
VERY CLEAR ON THE POINT, HOWEVER. 

FN19  "THE APPLICATION FOR REGISTRATION SHALL SPECIFY TO WHICH OF THE
FOLLOWING CLASSES THE WORK IN WHICH COPYRIGHT IS CLAIMED BELONGS: 

"(A)  BOOKS INCLUDING COMPOSITE AND CYCLOPAEDIC WORKS, DIRECTORIES,
GAZETTERS, AND OTHER COMPILATIONS: 

"(B)  PERIODICALS, INCLUDING NEWSPAPERS: 

"(C)  LECTURES, SERMONS, ADDRESSES, PREPARED FOR ORAL DELIVERY: 

"(D)  DRAMATIC OR DRAMATICO-MUSICAL COMPOSITIONS: 

"(E)  MUSICAL COMPOSITIONS: 

"(F)  MAPS: 

"(G)  WORKS OF ART; MODELS OR DESIGNS FOR WORKS OF ART: 

"(H)  REPRODUCTIONS OF A WORK OF ART: 

"(I)  DRAWINGS OR PLASTIC WORKS OF A SCIENTIFIC OR TECHNICAL
CHARACTER: 

"(J)  PHOTOGRAPHS: 

"(K)  PRINTS AND PICTORIAL ILLUSTRATIONS: 

"PROVIDED, NEVERTHELESS, THAT THE ABOVE SPECIFICATIONS SHALL NOT BE
HELD TO LIMIT THE SUBJECT-MATTER OF COPYRIGHT AS DEFINED IN SECTION
FOUR OF THIS ACT, NOR SHALL ANY ERROR IN CLASSIFICATION INVALIDATE OR
IMPAIR THE COPYRIGHT PROTECTION SECURED UNDER THIS ACT."  35 STAT.
1076. 

SUBSECTION (K) WAS AMENDED BY THE ADDITION OF THE WORDS "INCLUDING
PRINTS OR LABELS USED FOR ARTICLES OF MERCHANDISE" IN 1939.  53 STAT.
1142.  SEE NOTE 14, SUPRA.  TWO MORE CLASSES "(1) MOTION-PICTURE
PHOTOPLAYS" AND "(M) MOTION PICTURES OTHER THAN PHOTOPLAYS" WERE ADDED
IN 1912.  37 STAT. 488. 

FN20  SEE NOTE 14, SUPRA, FOR REPEAL OF CLAUSE DEFINING ENGRAVING
CUTS AND PRINTS IN TERMS OF "FINE ART." 

FN21  TITLE 17 OF THE U.S.C. ENTITLED "COPYRIGHTS" WAS CODIFIED INTO
POSITIVE LAW IN 1947 WITHOUT CHANGE IN THE PERTINENT PROVISIONS.  61
STAT. 652, 17 U.S.C. (SUPP. V, 1952) SECS. 4, 5. 

FN22  E.G., "A FEMALE FIGURE BEARING AN URN IN FRONT PARTLY SUPPORTED
BY DRAPERY AROUND THE HEAD.  THE FIGURE NUDE FROM THE WAIST UP AND
BELOW THIS THE FORM CONCEALED BY CONVENTIONALIZED SKIRT DRAPERIES WHICH
FLOW DOWN AND FORWARD FORMING A TRAY AT THE BASE.  SIDES AND BACK OF
SKIRT IN FLUTED FORM.  THE WHOLE BEING DESIGNED AS A CANDLESTICK WITH
MATCH TRAY.  THE FIGURE STANDING AND BENT FORWARD FROM HIPS AND
WAIST." 

FN23  "WORKS OF ART. - THIS TERM INCLUDES ALL WORKS BELONGING FAIRLY
TO THE SO-CALLED FINE ARTS. (PAINTINGS, DRAWINGS, AND SCULPTURE.) 

"PRODUCTIONS OF THE INDUSTRIAL ARTS UTILITARIAN IN PURPOSE AND
CHARACTER ARE NOT SUBJECT TO COPYRIGHT REGISTRATION, EVEN IF
ARTISTICALLY MADE OR ORNAMENTED."  RULES AND REGULATIONS FOR THE
REGISTRATION OF CLAIMS TO COPYRIGHT, BULLETIN NO. 15 (1910), 8. 

FN24  "WORKS OF ART AND MODELS OR DESIGNS FOR WORKS OF ART. THIS TERM
INCLUDES ALL WORKS BELONGING FAIRLY TO THE SO-CALLED FINE ARTS.
(PAINTINGS, DRAWINGS, AND SCULPTURE.) 

"THE PROTECTION OF PRODUCTIONS OF THE INDUSTRIAL ARTS UTILITARIAN IN
PURPOSE AND CHARACTER EVEN IF ARTISTICALLY MADE OR ORNAMENTED DEPENDS
UPON ACTION UNDER THE PATENT LAW; BUT REGISTRATION IN THE COPYWRIGHT
OFFICE HAS BEEN MADE TO PROTECT ARTISTIC DRAWINGS NOTWITHSTANDING THEY
MAY AFTERWARDS BE UTILIZED FOR ARTICLES OF MANUFACTURE."  37 CFR, 1939,
SEC. 201.4(7). 

FN25  E.G., "LIGHTING FIXTURE DESIGN.  BY F.E. GUITINI.  (BOWL-SHAPED
BRACKET EMBELLISHED WITH FIGURE OF HALF-NUDE WOMAN STANDING IN BUNCH OF
FLOWERS.)  COPYRIGHT DECEMBER 28, 1912.  REGISTRATION NUMBER G42645. 
COPYRIGHT CLAIMANT:  KATHODION BRONZE WORKS, NEW YORK." 

FN26  GREAT NORTHERN R. CO. V. UNITED STATES, 315 U.S. 262, 275. 

FN27  UNITED STATES V. PERRY, 146 U.S. 71, 74. 

FN28  ARGUMENTS BEFORE THE COMMITTEES ON PATENTS OF THE SENATE AND
HOUSE OF REPRESENTATIVES, CONJOINTLY, ON S. 6330 AND H.R. 19853, TO
AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT, 59TH CONG., 1ST
SESS., JUNE 6-9, 1906, P. 11.  THE STATEMENT IS APPLICABLE TO THE 1909
ACT SINCE SECS. 5(G) AND (H) OF THE 1909 ACT ARE IDENTICAL WITH THE
SAME SECTIONS OF S. 6330 AND H.R. 19853.  ALTHOUGH THERE WERE OTHER
HEARINGS AND REPORTS (SEE 51 HOUSE COMMITTEE HEARINGS BEFORE COMMITTEE
ON PATENTS (1906-1912), ON CONSOLIDATING AND REVISING THE COPYRIGHT
LAWS; H.R. REP. NO. 2222, 60TH CONG., 2D SESS. 3), THIS STATEMENT OF
MR. PUTNAM IS THE ONLY EXPLANATION OF THE CHANGE IN STATUTORY LANGUAGE,
THOUGH S. REP. NO. 6187, 59TH CONG., 2D SESS., P. 11, REFERS TO "WORKS
OF ART" AS A NEW DESIGNATION AND MENTIONED THE DELETION OF "FINE" FROM
THE CATEGORY. 

FN29  CF. H.C. WHITE CO. V. MORTON E. CONVERSE & SON CO., 20 F.2D
311. 

FN30  BURROW-GILES LITHOGRAPHIC CO. V. SARONY, 111 U.S. 53, 60;
BLEISTEIN V. DONALDSON LITHOGRAPHING CO., 188 U.S. 239, 250; LOUIS DE
JONGE & CO. V. BREUKER & KESSLER CO., 182 F. 150, 152; F.W. WOOLWORTH
CO. V. CONTEMPORARY ARTS, 193 F.2D 162, 164; SEE SAME CASE, 344 U.S.
228; YUENGLING V. SCHILE, 12 F. 97, 100; SCHUMACHER V. SCHWENCKE, 25 F.
466; PELLEGRINI V. ALLEGRINI, 2 F.2D 610. 

FN31  WHEATON AND DONALDSON V. PETERS AND GRIGG, 8 PET. 591, 661; FOX
FILM CORP. V. DOYAL, 286 U.S. 123, 127. 

FN32  LORD BROUGHAM AND LORD ST. LEONARDS IN JEFFERYS V. BOOSEY, IV
H.L.C. 815, 968, 979, 10 ENG. REP. 681, 741, 745. 

FN33  TWO CASES ARE RELIED UPON TO SUPPORT THE POSITION OF THE
PETITIONERS.  TAYLOR INSTRUMENT COMPANIES V. FAWLEY-BROST, 139 F.2D 98,
AND BROWN INSTRUMENT CO. V. WARNER, 82 U.S. APP. D.C.  232, 161 F.2D
910.  THESE CASES HOLD THAT THE MECHANICAL PATENT LAW AND COPYRIGHT
LAWS ARE MUTUALLY EXCLUSIVE.  AS TO OVERLAPPING OF DESIGN PATENT AND
COPYRIGHT LAWS, HOWEVER, A DIFFERENT ANSWER HAS BEEN GIVEN BY THE
COURTS.  LOUIS DE JONGE & CO. V. BREUKER & KESSLER CO., 182 F. 150,
AFFIRMED ON OTHER GROUNDS IN 191 F. 35, AND 235 U.S. 33; SEE ALSO CASES
CITED IN NOTE 37, INFRA. 

FN34  THIS COURT SAID, P. 525:  "IT IS A NEW AND ORIGINAL DESIGN FOR
A MANUFACTURE, WHETHER OF METAL OR OTHER MATERIAL; ...  TO BE EITHER
WORKED INTO, OR ON, ANY ARTICLE OF MANUFACTURE; OR A NEW AND ORIGINAL
SHAPE OR CONFIGURATION OF ANY ARTICLE OF MANUFACTURE - IT IS ONE OR ALL
OF THESE THAT THE LAW HAS IN VIEW.  AND THE THING INVENTED OR PRODUCED,
FOR WHICH A PATENT IS GIVEN, IS THAT WHICH GIVES A PECULIAR OR
DISTINCTIVE APPEARANCE TO THE MANUFACTURE, OR ARTICLE TO WHICH IT MAY
BE APPLIED, OR TO WHICH IT GIVES FORM  ...  .  IT THEREFORE PROPOSES TO
SECURE FOR A LIMITED TIME TO THE INGENIOUS PRODUCER OF THOSE
APPEARANCES THE ADVANTAGES FLOWING FROM THEM  ...  .  IT IS THE
APPEARANCE ITSELF, THEREFORE, NO MATTER BY WHAT AGENCY CAUSED, THAT
CONSTITUTES MAINLY, IF NOT ENTIRELY, THE CONTRIBUTION TO THE PUBLIC
WHICH THE LAW DEEMS WORTHY OF RECOMPENSE." 

FN35  E.G., DESIGN PATENT 170.445 BASE FOR TABLE LAMPS, A FANCIFUL
STATUETTE OF A GIRL STANDING IN FRONT OF A HIGH ROCK IN BATHING
COSTUME. 

FN36  THE ENGLISH COPYRIGHT ACT, 1911, SEC. 22, 4 HALSBURY'S STATUTES
OF ENGLAND (2D ED.), P. 800, DOES NOT PROTECT DESIGNS REGISTRABLE UNDER
THE PATENTS AND DESIGNS ACT (NOW THE REGISTERED DESIGNS ACT, 1949, 17
HALSBURY'S STATUTES OF ENGLAND (2D ED.))  UNLESS SUCH DESIGNS ARE NOT
USED OR INTENDED TO BE USED AS MODELS OR PATTERNS TO BE MULTIPLIED BY
ANY INDUSTRIAL PROCESS.  THE BOARD OF TRADE HAS RULED THAT A DESIGN
SHALL BE DEEMED TO BE USED AS A MODEL OR PATTERN TO BE MULTIPLIED BY
INDUSTRIAL PROCESS WITHIN THE MEANING OF SEC. 22 WHEN THE DESIGN IS
REPRODUCED OR INTENDED TO BE REPRODUCED IN MORE THAN FIFTY SINGLE
ARTICLES.  THE COPYRIGHT (INDUSTRIAL DESIGNS) RULES, 1949, NO. 2367, 1
STATUTORY INSTRUMENTS 1949, P. 1453. 

FN37  SEE ROSENTHAL V. STEIN, NOTE 3, SUPRA; IN RE BLOOD, 57 APP.
D.C. 351, 23 F.2D 772; KORZYBSKI V. UNDERWOOD & UNDERWOOD, INC., 36
F.2D 727; WILLIAM A. MEIER GLASS CO. V. ANCHOR HOCKING GLASS CORP., 95
F. SUPP. 264, 267; JONES BROS. CO. V. UNDERKOFFLER, 16 F. SUPP. 729;
LOUIS DE JONGE & CO. V. BREUKER & KESSLER CO., 182 F. 150; 66 HARV. L.
REV. 884; 52 MICH. L. REV. 33; CF. TAYLOR INSTRUMENT COMPANIES V.
FAWLEY-BROST, 139 F.2D 98. 

FN38  SEE, POGUE, BORDERLAND - WHERE COPYRIGHT AND DESIGN PATENT
MEET, 52 MICH. L. REV. 33, 58. 

FN39  F.W. WOOLWORTH CO. V. CONTEMPORARY ARTS, 193 F.2D 162; ANSEHL
V. PURITAN PHARMACEUTICAL CO., 61 F.2D 131; FULMER V. UNITED STATES,
122 CT. CL. 195, 103 F. SUPP. 1021; MULLER V. TRIBOROUGH BRIDGE
AUTHORITY, 43 F. SUPP. 298. 

FN40  SAMPSON & MURDOCK CO. V. SEAVER-RADFORD CO., 140 F. 539.  SEE,
ANNO.  26 A.L.R. 585. 

FN41  JEWELER'S CIRCULAR PUB. CO. V. KEYSTONE PUBLISHING CO., 281 F.
83, 94. 

FN42  WHITE-SMITH MUSIC PUB. CO. V. APOLLO CO., 209 U.S. 1; BLEISTEIN
V. DONALDSON LITHOGRAPHING CO., 188 U.S. 239, 249; ARNSTEIN V. PORTER,
154 F.2D 464, 468-469; ALFRED BELL & CO., LTD. V. CATALDA FINE ARTS,
INC., 191 F.2D 99, 103; ANSEHL V. PURITAN PHARMACEUTICAL CO., SUPRA;
CHRISTIE V. COHAN, 154 F.2D 827. 

OPINION OF MR. JUSTICE DOUGLAS, IN WHICH MR. JUSTICE BLACK CONCURS. 

AN IMPORTANT CONSTITUTIONAL QUESTION UNDERLIES THIS CASE - A QUESTION
WHICH WAS STIRRED ON ORAL ARGUMENT BUT NOT TREATED IN THE BRIEFS.  IT
IS WHETHER THESE STATUETTES OF DANCING FIGURES MAY BE COPYRIGHTED. 
CONGRESS HAS PROVIDED THAT "WORKS OF ART," "MODELS OR DESIGNS FOR WORKS
OF ART," AND "REPRODUCTIONS OF A WORK OF ART" MAY BE COPYRIGHTED (17
U.S.C. SEC. 5); AND THE COURT HOLDS THAT THESE STATUETTES ARE INCLUDED
IN THE WORDS "WORKS OF ART."  BUT MAY STATUETTES BE GRANTED THE
MONOPOLY OF THE COPYRIGHT? 

ARTICLE I, SEC. 8 OF THE CONSTITUTION GRANTS CONGRESS THE POWER "TO
PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR
LIMITED TIMES TO AUTHORS  ...  THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE
WRITINGS  ...  ."  THE POWER IS THUS CIRCUMSCRIBED:  IT ALLOWS A
MONOPOLY TO BE GRANTED ONLY TO "AUTHORS" FOR THEIR "WRITINGS."  IS A
SCULPTOR AN "AUTHOR" AND IS HIS STATUTE A "WRITING" WITHIN THE MEANING
OF THE CONSTITUTION?  WE HAVE NEVER DECIDED THE QUESTION. 

BURROW-GILES LITHOGRAPHIC CO. V. SARONY, 111 U.S. 53, HELD THAT A
PHOTOGRAPH COULD BE COPYRIGHTED. 

BLEISTEIN V. DONALDSON LITHOGRAPHING CO., 188 U.S. 239, HELD THAT
CHROMOLITHOGRAPHS TO BE USED AS ADVESTISEMENTS FOR A CIRCUS WERE
"PICTORIAL ILLUSTRATIONS" WITHIN THE MEANING OF THE COPYRIGHT LAWS. 
BROAD LANGUAGE WAS USED IN THE LATTER CASE, "  ...  A VERY MODEST GRADE
OF ART HAS IN IT SOMETHING IRREDUCIBLE, WHICH IS ONE MAN'S ALONE.  THAT
SOMETHING HE MAY COPYRIGHT UNLESS THERE IS A RESTRICTION IN THE WORDS
OF THE ACT."  188 U.S., AT 250.  BUT THE CONSTITUTIONAL RANGE OF THE
MEANING OF "WRITINGS" IN THE FIELD OF ART WAS NOT IN ISSUE EITHER IN
THE BLEISTEIN CASE NOR IN WOOLWORTH CO. V. CONTEMPORARY ARTS, 344 U.S.
228, RECENTLY HERE ON A WRIT OF CERTIORARI LIMITED TO A QUESTION OF
DAMAGES. 

AT TIMES THE COURT HAS ON ITS OWN INITIATIVE CONSIDERED AND DECIDED
CONSTITUTIONAL ISSUES NOT RAISED, ARGUED, OR BRIEFED BY THE PARTIES. 
SUCH, FOR EXAMPLE, WAS THE CASE OF CONTINENTAL BANK V. ROCK ISLAND R.
CO., 294 U.S. 648, 667, IN WHICH THE COURT DECIDED THE
CONSTITUTIONALITY OF SEC. 77 OF THE BANKRUPTCY ACT THOUGH THE QUESTION
WAS NOT NOTICED BY ANY PARTY.  WE COULD DO THE SAME HERE AND DECIDE THE
QUESTION HERE AND NOW.  THIS CASE, HOWEVER, IS NOT A PRESSING ONE,
THERE BEING NO URGENCY FOR A DECISION.  MOREOVER, THE CONSTITUTIONAL
MATERIALS ARE QUITE MEAGER (SEE FENNING, THE ORIGIN OF THE PATENT AND
COPYRIGHT CLAUSE OF THE CONSTITUTION, 17 GEO. L.J. 109 (1929)); AND
MUCH RESEARCH IS NEEDED. 

THE INTERESTS INVOLVED IN THE CATEGORY OF "WORKS OF ART," AS USED IN
THE COPYRIGHT LAW, ARE CONSIDERABLE.  THE COPYRIGHT OFFICE HAS SUPPLIED
US WITH A LONG LIST OF SUCH ARTICLES WHICH HAVE BEEN COPYRIGHTED -
STATUETTES, BOOK ENDS, CLOCKS, LAMPS, DOOR KNOCKERS, CANDLESTICKS,
INKSTANDS, CHANDELIERS, PIGGY BANKS, SUNDIALS, SALT AND PEPPER SHAKERS,
FISH BOWLS, CASSEROLES, AND ASH TRAYS.  PERHAPS THESE ARE ALL
"WRITINGS" IN THE CONSTITUTIONAL SENSE.  BUT TO ME, AT LEAST, THEY ARE
NOT OBVIOUSLY SO.  IT IS TIME THAT WE CAME TO THE PROBLEM FULL FACE.  I
WOULD ACCORDINGLY PUT THE CASE DOWN FOR REARGUMENT. 
..END :

















INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 37 V. BOYD
347 U.S. 222 


NO. 195.  ARGUED JANUARY 6, 1954 - DECIDED MARCH 8, 1954 - 111 F. SUPP.
802, JUDGMENT VACATED AND CAUSE REMANDED. 


A LABOR UNION AND SOME OF ITS ALIEN MEMBERS SUED TO ENJOIN A DISTRICT
DIRECTOR OF IMMIGRATION AND NATURALIZATION FROM SO CONSTRUING SEC.
212(D)(7) OF THE IMMIGRATION AND NATIONALITY ACT OF 1952 AS TO TREAT
ALIENS DOMICILED IN THE CONTINENTAL UNITED STATES RETURNING FROM
TEMPORARY WORK IN ALASKA AS IF THEY WERE ALIENS ENTERING THE UNITED
STATES FOR THE FIRST TIME.  THEY ALSO PRAYED FOR A DECLARATORY JUDGMENT
THAT, IF SO CONSTRUED, SEC. 212(D)(7) IS UNCONSTITUTIONAL.  THE RECORD
DID NOT SHOW THAT ANY SANCTIONS UNDER THE SECTION HAD BEEN SET IN
MOTION AGAINST INDIVIDUALS ON WHOSE BEHALF RELIEF WAS SOUGHT, OR THAT
ANY OCCASION FOR DOING SO HAD ARISEN.  HELD:  THE COMPLAINT MUST BE
DISMISSED AS NOT PRESENTING A "CASE OR CONTROVERSY" APPROPRIATE FOR
ADJUDICATION.  PP. 222-224. 

INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 37, ET AL.
V. BOYD, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF WASHINGTON. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BY LOCAL 37 OF THE INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION AND SEVERAL OF ITS ALIEN MEMBERS TO ENJOIN THE
DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION AT SEATTLE FROM SO
CONSTRUING SEC. 212(D)(7) OF THE IMMIGRATION AND NATIONALITY ACT OF
1952* AS TO TREAT ALIENS DOMICILED IN THE CONTINENTAL UNITED STATES
RETURNING FROM TEMPORARY WORK IN ALASKA AS IF THEY WERE ALIENS ENTERING
THE UNITED STATES FOR THE FIRST TIME.  DECLARATORY RELIEF TO THE SAME
EFFECT IS ALSO SOUGHT.  SINCE PETITIONERS ASSERTED IN THE ALTERNATIVE
THAT SUCH A CONSTRUCTION OF THE CHALLENGED STATUTE WOULD BE
UNCONSTITUTIONAL, A THREE-JUDGE DISTRICT COURT WAS CONVENED.  THE CASE
CAME BEFORE IT ON STIPULATED FACTS AND ISSUES OF LAW, FROM WHICH IT
APPEARED THAT THE UNION HAS OVER THREE THOUSAND MEMBERS WHO WORK EVERY
SUMMER IN THE HERRING AND SALMON CANNERIES OF ALASKA, THAT SOME OF
THESE ARE ALIENS, AND THAT IF ALIEN WORKERS GOING TO ALASKA FOR THE
1953 CANNING SEASON WERE EXCLUDED ON THEIR RETURN, THEIR "CONTRACT AND
PROPERTY RIGHTS (WOULD) BE JEOPARDIZED AND FORFEITED."  THE DISTRICT
COURT ENTERTAINED THE SUIT BUT DISMISSED IT ON THE MERITS.  111 F.
SUPP. 802.  IN OUR ORDER OF OCTOBER 12, 1953, WE POSTPONED THE QUESTION
OF JURISDICTION TO THE HEARING ON THE MERITS.  346 U.S. 804. 

*THIS SECTION STATES THAT THE EXCLUSIONARY PROVISIONS OF SEC. 212(A)
SHALL, WITH EXCEPTIONS NOT HERE RELEVANT, "BE APPLICABLE TO ANY ALIEN
WHO SHALL LEAVE HAWAII, ALASKA, GUAM, PUERTO RICO, OR THE VIRGIN
ISLANDS OF THE UNITED STATES, AND WHO SEEKS TO ENTER THE CONTINENTAL
UNITED STATES  ...  ."  8 U.S.C. SEC. 1182(D)(7). 

ON THIS APPEAL, APPELLEE CONTENDS THAT THE DISTRICT COURT SHOULD NOT
HAVE REACHED THE STATUTORY AND CONSTITUTIONAL QUESTIONS - THAT IT
SHOULD HAVE DISMISSED THE SUIT FOR WANT OF A "CASE OR CONTROVERSY," FOR
LACK OF STANDING ON THE UNION'S PART TO BRING THIS ACTION, BECAUSE THE
ATTORNEY GENERAL WAS AN INDISPENSABLE PARTY, AND BECAUSE HABEAS CORPUS
IS THE EXCLUSIVE METHOD FOR JUDICIAL INQUIRY IN DEPORTATION CASES. 
SINCE THE FIRST OBJECTION IS CONCLUSIVE, THERE IS AN END OF THE
MATTER. 

APPELLANTS IN EFFECT ASKED THE DISTRICT COURT TO RULE THAT A STATUTE
THE SANCTIONS OF WHICH HAD NOT BEEN SET IN MOTION AGAINST INDIVIDUALS
ON WHOSE BEHALF RELIEF WAS SOUGHT, BECAUSE AN OCCASION FOR DOING SO HAD
NOT ARISEN, WOULD NOT BE APPLIED TO THEM IF IN THE FUTURE SUCH A
CONTINGENCY SHOULD ARISE.  THAT IS NOT A LAWSUIT TO ENFORCE A RIGHT; IT
IS AN ENDEAVOR TO OBTAIN A COURT'S ASSURANCE THAT A STATUTE DOES NOT
GOVERN HYPOTHETICAL SITUATIONS THAT MAY OR MAY NOT MAKE THE CHALLENGED
STATUTE APPLICABLE.  DETERMINATION OF THE SCOPE AND CONSTITUTIONALITY
OF LEGISLATION IN ADVANCE OF ITS IMMEDIATE ADVERSE EFFECT IN THE
CONTEXT OF A CONCRETE CASE INVOLVES TOO REMOTE AND ABSTRACT AN INQUIRY
FOR THE PROPER EXERCISE OF THE JUDICIAL FUNCTION.  UNITED PUBLIC
WORKERS V. MITCHELL, 330 U.S. 75; SEE MUSKRAT V. UNITED STATES, 219
U.S. 346, AND ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S.
450.  SINCE WE DO NOT HAVE ON THE RECORD BEFORE US A CONTROVERSY
APPROPRIATE FOR ADJUDICATION, THE JUDGMENT OF THE DISTRICT COURT MUST
BE VACATED, WITH DIRECTIONS TO DISMISS THE COMPLAINT.  IT IS SO
ORDERED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

THIS LOOKS TO ME LIKE THE VERY KIND OF "CASE OR CONTROVERSY" COURTS
SHOULD DECIDE.  WITH THE ABSTRACT PRINCIPLES OF LAW RELIED ON BY THE
MAJORITY FOR DISMISSING THE CASE, I AM NOT IN DISAGREEMENT.  OF COURSE
FEDERAL COURTS DO NOT PASS ON THE MEANING OR CONSTITUTIONALITY OF
STATUTES AS THEY MIGHT BE THOUGHT TO GOVERN MERE "HYPOTHETICAL
SITUATIONS  ...  ."  NOR SHOULD COURTS ENTERTAIN SUCH STATUTORY
CHALLENGES ON BEHALF OF PERSONS UPON WHOM ADVERSE STATUTORY EFFECTS ARE
"TOO REMOTE AND ABSTRACT AN INQUIRY FOR THE PROPER EXERCISE OF THE
JUDICIAL FUNCTION."  BUT AS I READ THE RECORD IT SHOWS THAT JUDICIAL
ACTION IS ABSOLUTELY ESSENTIAL TO SAVE A LARGE GROUP OF WAGE EARNERS ON
WHOSE BEHALF THIS ACTION IS BROUGHT FROM IRREPARABLE HARM DUE TO
ALLEGED LAWLESS ENFORCEMENT OF A FEDERAL STATUTE.  MY VIEW MAKES IT
NECESSARY FOR ME TO SET OUT THE FACTS WITH A LITTLE MORE DETAIL THAN
THEY APPEAR IN THE COURT'S OPINION. 

EVERY SUMMER MEMBERS OF THE APPELLANT UNION GO FROM THE WEST COAST OF
CONTINENTAL UNITED STATES TO ALASKA TO WORK IN SALMON AND HERRING
CANNERIES UNDER COLLECTIVE-BARGAINING AGREEMENTS.  AS THE 1953 CANNING
SEASON APPROACHED THE UNION AND ITS MEMBERS LOOKED FORWARD TO THIS
ALASKA EMPLOYMENT.  A TROUBLESOME QUESTION AROSE, HOWEVER, ON ACCOUNT
OF THE IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 163.  SECTION
212(D)(7) OF THIS NEW ACT HAS LANGUAGE THAT GIVEN ONE CONSTRUCTION
PROVIDES THAT ALL ALIENS SEEKING ADMISSION TO CONTINENTAL UNITED STATES
FROM ALASKA, EVEN THOSE PREVIOUSLY ACCEPTED AS PERMANENT UNITED STATES
RESIDENTS, SHALL BE EXAMINED AS IF ENTERING FROM A FOREIGN COUNTRY WITH
A VIEW TO EXCLUDING THEM ON ANY OF THE MANY GROUNDS APPLICABLE TO
ALIENS GENERALLY.  THIS NEW LAW CREATED AN ACUTE PROBLEM FOR THE UNION
AND ITS NUMEROUS MEMBERS WHO WERE LAWFUL ALIEN RESIDENTS, SINCE ALIENS
GENERALLY CAN BE EXCLUDED FROM THIS COUNTRY FOR MANY REASONS WHICH
WOULD NOT JUSTIFY DEPORTING ALIENS LAWFULLY RESIDING HERE.  THE UNION
AND ITS MEMBERS INSISTED ON ANOTHER CONSTRUCTION.  THEY DENIED THAT
CONGRESS INTENDED TO REQUIRE ALIEN WORKERS TO FORFEIT THEIR RIGHT TO
LIVE IN THIS COUNTRY FOR NO REASON AT ALL EXCEPT THAT THEY WENT TO
ALASKA, TERRITORY OF THE UNITED STATES, TO ENGAGE IN LAWFUL WORK UNDER
A LAWFULLY AUTHORIZED COLLECTIVE-BARGAINING CONTRACT.  THE DEFENDANT
IMMIGRATION OFFICER ANNOUNCED THAT THE UNION'S INTERPRETATION WAS WRONG
AND THAT WORKERS GOING TO ALASKA WOULD BE SUBJECT TO EXAMINATION AND
EXCLUSION.  THIS IS THE CONTROVERSY. 

IT WAS TO TEST THE RIGHT OF THE IMMIGRATION OFFICER TO APPLY SEC.
212(D)(7) TO MAKE THESE WORKERS SUBJECT TO EXCLUSION THAT THIS SUIT WAS
FILED BY THE UNION AND TWO OF ITS OFFICERS ON BEHALF OF THEMSELVES AND
ALL UNION MEMBERS WHO ARE ALIENS AND PERMANENT RESIDENTS.  TRUE, THE
ACTION WAS BEGUN BEFORE THE UNION MEMBERS WENT TO ALASKA FOR THE 1953
CANNING SEASON.  BUT IT IS NOT ONLY ADMITTED THAT THE IMMIGRATION
OFFICIAL INTENDED TO ENFORCE SEC. 212(D)(7) AS THE UNION AND THESE
WORKERS FEARED.  IT IS ADMITTED HERE THAT HE HAS SINCE DONE PRECISELY
THAT.  ALL 1953 ALIEN CANNERY WORKERS HAVE ACTUALLY BEEN SUBJECTED TO
THE WEARISOME ROUTINE OF IMMIGRATION PROCEDURE AS THOUGH THEY HAD NEVER
LIVED HERE.  AND SOME OF THE UNION MEMBERS ARE EVIDENTLY ABOUT TO BE
DENIED THE RIGHT EVER TO RETURN TO THEIR HOMES ON GROUNDS THAT COULD
NOT HAVE BEEN LEGALLY APPLIED TO THEM HAD THEY STAYED IN CALIFORNIA OR
WASHINGTON INSTEAD OF GOING TO ALASKA TO WORK FOR AN IMPORTANT AMERICAN
INDUSTRY. 

THUS THE THREATENED INJURY WHICH THE COURT DISMISSES AS "REMOTE" AND
"HYPOTHETICAL" HAS COME ABOUT.  FOR GOING TO ALASKA TO ENGAGE IN HONEST
EMPLOYMENT MANY OF THESE WORKERS MAY LOSE THE HOME THIS COUNTRY ONCE
AFFORDED THEM.  THIS IS A STRANGE PENALTY TO PUT ON PRODUCTIVE WORK. 
MAYBE THIS IS WHAT CONGRESS MEANT BY PASSING SEC. 212(D)(7).  AND MAYBE
IN THESE TIMES SUCH A LAW WOULD BE HELD CONSTITUTIONAL.  BUT EVEN SO,
CAN IT BE THAT A CHALLENGE TO THIS LAW ON BEHALF OF THOSE WHOM IT HITS
THE HARDEST IS SO FRIVOLOUS THAT IT SHOULD BE DISMISSED FOR WANT OF A
CONTROVERSY THAT COURTS SHOULD DECIDE?  WORKERS THREATENED WITH
IRREPARABLE DAMAGES, LIKE OTHERS, SHOULD HAVE THEIR CASES TRIED. 
..END :













REMMER V. UNITED STATES 347 U.S. 227 


NO. 304.  ARGUED FEBRUARY 1-2, 1954 - DECIDED MARCH 8, 1954 - 205 F.2D
277, JUDGMENT VACATED. 


DURING THE TRIAL OF PETITIONER IN A FEDERAL DISTRICT COURT ON CHARGES
OF WILLFUL EVASION OF FEDERAL INCOME TAXES, AN UNNAMED PERSON
COMMUNICATED WITH A JUROR WHO AFTERWARDS BECAME THE JURY FOREMAN, AND
REMARKED TO HIM THAT HE COULD PROFIT BY BRINGING IN A VERDICT FAVORABLE
TO PETITIONER.  THE JUROR REPORTED THE INCIDENT TO THE JUDGE, WHO
INFORMED THE PROSECUTING ATTORNEYS AND ADVISED WITH THEM.  AS A RESULT,
THE FEDERAL BUREAU OF INVESTIGATION MADE AN INVESTIGATION AND REPORT,
WHICH WAS CONSIDERED BY THE JUDGE AND PROSECUTORS ALONE, BUT NOTHING
FURTHER WAS SAID OR DONE.  PETITIONER AND HIS COUNSEL FIRST LEARNED OF
THE MATTER AFTER A VERDICT OF GUILTY HAD BEEN RENDERED, AND PETITIONER
THEREUPON MOVED FOR A NEW TRIAL, WHICH WAS DENIED.  HELD:  THE CASE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO HOLD A HEARING TO
DETERMINE WHETHER THE INCIDENT COMPLAINED OF WAS HARMFUL TO PETITIONER,
AND IF FOUND TO HAVE BEEN HARMFUL, TO GRANT A NEW TRIAL.  PP. 228-230. 

(A)  IN A CRIMINAL CASE, ANY PRIVATE COMMUNICATION, CONTACT, OR
TAMPERING, DIRECTLY OR INDIRECTLY, WITH A JUROR DURING A TRIAL ABOUT
THE MATTER PENDING BEFORE THE JURY IS PRESUMPTIVELY PREJUDICIAL, IF NOT
MADE IN PURSUANCE OF KNOWN RULES OF THE COURT AND THE INSTRUCTIONS AND
DIRECTIONS OF THE COURT MADE DURING THE TRIAL, WITH FULL KNOWLEDGE OF
THE PARTIES.  P. 229. 

(B)  THE PRESUMPTION IS NOT CONCLUSIVE, BUT THE BURDEN RESTS HEAVILY
UPON THE GOVERNMENT TO ESTABLISH, AFTER NOTICE TO AND HEARING OF THE
DEFENDANT, THAT SUCH CONTACT WITH THE JUROR WAS HARMLESS TO THE
DEFENDANT.  P. 229. 

REMMER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED BY A JURY ON SEVERAL COUNTS CHARGING
WILLFUL EVASION OF THE PAYMENT OF FEDERAL INCOME TAXES.  A MATTER
ADMITTED BY THE GOVERNMENT TO HAVE BEEN HANDLED BY THE TRIAL COURT IN A
MANNER THAT MAY HAVE BEEN PREJUDICIAL TO THE PETITIONER, AND THEREFORE
CONFESSED AS ERROR, IS PRESENTED AT THE THRESHOLD AND MUST BE DISPOSED
OF FIRST. 

AFTER THE JURY HAD RETURNED ITS VERDICT, THE PETITIONER LEARNED FOR
THE FIRST TIME THAT DURING THE TRIAL A PERSON UNNAMED HAD COMMUNICATED
WITH A CERTAIN JUROR, WHO AFTERWARDS BECAME THE JURY FOREMAN, AND
REMARKED TO HIM THAT HE COULD PROFIT BY BRINGING IN A VERDICT FAVORABLE
TO THE PETITIONER.  THE JUROR REPORTED THE INCIDENT TO THE JUDGE, WHO
INFORMED THE PROSECUTING ATTORNEYS AND ADVISED WITH THEM.  AS A RESULT,
THE FEDERAL BUREAU OF INVESTIGATION WAS REQUESTED TO MAKE AN
INVESTIGATION AND REPORT, WHICH WAS ACCORDINGLY DONE.  THE F.B.I.
REPORT WAS CONSIDERED BY THE JUDGE AND PROSECUTORS ALONE, AND THEY
APPARENTLY CONCLUDED THAT THE STATEMENT TO THE JUROR WAS MADE IN JEST,
AND NOTHING FURTHER WAS DONE OR SAID ABOUT THE MATTER.  NEITHER THE
JUDGE NOR THE PROSECUTORS INFORMED THE PETITIONER OF THE INCIDENT, AND
HE AND HIS COUNSEL FIRST LEARNED OF THE MATTER BY READING OF IT IN THE
NEWSPAPERS AFTER THE VERDICT. 

THE ABOVE-STATED FACTS WERE ALLEGED IN A MOTION FOR A NEW TRIAL,
TOGETHER WITH AN ALLEGATION THAT THE PETITIONER WAS SUBSTANTIALLY
PREJUDICED, THEREBY DEPRIVING HIM OF A FAIR TRIAL, AND A REQUEST FOR A
HEARING TO DETERMINE THE CIRCUMSTANCES SURROUNDING THE INCIDENT AND ITS
EFFECT ON THE JURY.* A SUPPORTING AFFIDAVIT OF THE PETITIONER'S
ATTORNEYS RECITED THE ALLEGED OCCURRENCES AND STATED THAT IF THEY HAD
KNOWN OF THE INCIDENT THEY WOULD HAVE MOVED FOR A MISTRIAL AND
REQUESTED THAT THE JUROR IN QUESTION BE REPLACED BY AN ALTERNATE
JUROR.  TWO NEWSPAPER ARTICLES REPORTING THE INCIDENT WERE ATTACHED TO
THE AFFIDAVIT.  THE GOVERNMENT DID NOT FILE ANSWERING AFFIDAVITS.  THE
DISTRICT COURT, WITHOUT HOLDING THE REQUESTED HEARING, DENIED THE
MOTION FOR A NEW TRIAL.  THE COURT OF APPEALS HELD THAT THE DISTRICT
COURT HAD NOT ABUSED ITS DISCRETION, SINCE THE PETITIONER HAD SHOWN NO
PREJUDICE TO HIM.  205 F.2D 277, 291.  THE CASE IS HERE ON WRIT OF
CERTIORARI.  346 U.S. 884. 

*THE MOTION FOR A NEW TRIAL WAS ALSO GROUNDED ON MANY OTHER
CONTENTIONS, SEVERAL OF WHICH HAVE ALSO BEEN PRESENTED TO THIS COURT. 
BECAUSE OF OUR DISPOSITION OF THE CASE ON THE ISSUE TREATED HEREIN, WE
DO NOT PASS UPON THESE ADDITIONAL QUESTIONS. 

IN A CRIMINAL CASE, ANY PRIVATE COMMUNICATION, CONTACT, OR TAMPERING,
DIRECTLY OR INDIRECTLY, WITH A JUROR DURING A TRIAL ABOUT THE MATTER
PENDING BEFORE THE JURY IS, FOR OBVIOUS REASONS, DEEMED PRESUMPTIVELY
PREJUDICIAL, IF NOT MADE IN PURSUANCE OF KNOWN RULES OF THE COURT AND
THE INSTRUCTIONS AND DIRECTIONS OF THE COURT MADE DURING THE TRIAL,
WITH FULL KNOWLEDGE OF THE PARTIES.  THE PRESUMPTION IS NOT CONCLUSIVE,
BUT THE BURDEN RESTS HEAVILY UPON THE GOVERNMENT TO ESTABLISH, AFTER
NOTICE TO AND HEARING OF THE DEFENDANT, THAT SUCH CONTACT WITH THE
JUROR WAS HARMLESS TO THE DEFENDANT.  MATTOX V. UNITED STATES, 146 U.S.
140, 148-150; WHEATON V. UNITED STATES, 133 F.2D 522, 527. 

WE DO NOT KNOW FROM THIS RECORD, NOR DOES THE PETITIONER KNOW, WHAT
ACTUALLY TRANSPIRED, OR WHETHER THE INCIDENTS THAT MAY HAVE OCCURRED
WERE HARMFUL OR HARMLESS.  THE SENDING OF AN F.B.I. AGENT IN THE MIDST
OF A TRIAL TO INVESTIGATE A JUROR AS TO HIS CONDUCT IS BOUND TO IMPRESS
THE JUROR AND IS VERY APT TO DO SO UNDULY.  A JUROR MUST FEEL FREE TO
EXERCISE HIS FUNCTIONS WITHOUT THE F.B.I. OR ANYONE ELSE LOOKING OVER
HIS SHOULDER.  THE INTEGRITY OF JURY PROCEEDINGS MUST NOT BE
JEOPARDIZED BY UNAUTHORIZED INVASIONS.  THE TRIAL COURT SHOULD NOT
DECIDE AND TAKE FINAL ACTION EX PARTE ON INFORMATION SUCH AS WAS
RECEIVED IN THIS CASE, BUT SHOULD DETERMINE THE CIRCUMSTANCES, THE
IMPACT THEREOF UPON THE JUROR, AND WHETHER OR NOT IT WAS PREJUDICIAL,
IN A HEARING WITH ALL INTERESTED PARTIES PERMITTED TO PARTICIPATE. 

WE THEREFORE VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND
THE CASE TO THE DISTRICT COURT WITH DIRECTIONS TO HOLD A HEARING TO
DETERMINE WHETHER THE INCIDENT COMPLAINED OF WAS HARMFUL TO THE
PETITIONER, AND IF AFTER HEARING IT IS FOUND TO HAVE BEEN HARMFUL, TO
GRANT A NEW TRIAL.  JUDGMENT VACATED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



PARTMAR CORPORATION V. PARAMOUNT PICTURES THEATRES CORP. 347 U.S. 89 


NO. 17.  ARGUED OCTOBER 13, 1953 - DECIDED FEBRUARY 8, 1954 - 200 F.2D
561, AFFIRMED. 


PARAMOUNT LEASED A THEATRE AND GRANTED A FRANCHISE TO PARTMAR TO
EXHIBIT FIRST-RUN FILMS OF PARAMOUNT PICTURES, BOTH FOR TERMS OF TEN
YEARS.  THE LEASE PROVIDED THAT IT WAS TERMINABLE AT PARAMOUNT'S OPTION
IF THE FRANCHISE AGREEMENT "BE CANCELLED OR TERMINATED FOR ANY REASON
WHATSOEVER."  IN AN ANTITRUST SUIT BY THE GOVERNMENT AGAINST PARAMOUNT
AND OTHERS, A FEDERAL DISTRICT COURT HELD THAT SUCH FRANCHISE
AGREEMENTS WERE THE PRODUCT OF AN ILLEGAL CONSPIRACY AND ENJOINED THEIR
ENFORCEMENT.  PARAMOUNT THEN NOTIFIED PARTMAR THAT IT WAS TERMINATING
THE FRANCHISE AGREEMENT BECAUSE OF THE INJUNCTION AND THAT IT WAS
TERMINATING THE LEASE BECAUSE OF TERMINATION OF THE FRANCHISE
AGREEMENT.  PARTMAR REFUSED TO VACATE THE THEATRE, AND PARAMOUNT SUED
IN A FEDERAL DISTRICT COURT TO OBTAIN POSSESSION AND FOR A DECLARATORY
JUDGMENT THAT THE LEASE HAD BEEN PROPERLY TERMINATED.  PARTMAR
ANSWERED, SETTING UP VARIOUS DEFENSES, AND FILED COUNTERCLAIMS SEEKING
TREBLE DAMAGES RESULTING FROM A CONSPIRACY RESPECTING THE FRANCHISE
AGREEMENT IN VIOLATION OF THE SHERMAN ACT.  PARAMOUNT'S SUIT AND THE
COUNTERCLAIMS WERE SEPARATED FOR TRIAL.  AFTER THIS COURT HAD OVERRULED
THE DISTRICT COURT'S FINDING THAT SUCH FRANCHISE AGREEMENTS VIOLATED
THE SHERMAN ACT, THE EVICTION SUIT WAS TRIED AND THE DISTRICT COURT
FOUND NO SUBSTANTIAL EVIDENCE OF A CONSPIRACY RESPECTING THE FRANCHISE
AGREEMENT AND ENTERED JUDGMENT FOR PARTMAR; BUT IT ALSO DISMISSED
PARTMAR'S TREBLE-DAMAGE COUNTERCLAIMS, WITH PREJUDICE AND WITHOUT
TRIAL.  PARTMAR TOOK NO APPEAL FROM THE DISTRICT COURT'S JUDGMENT IN
THE EVICTION SUIT; BUT IT APPEALED FROM THE JUDGMENT DISMISSING THE
TREBLE-DAMAGE COUNTERCLAIMS.  HELD:  COLLATERAL ESTOPPEL BARS FURTHER
LITIGATION BY THE PARTIES OF THE ISSUE OF CONSPIRACY IN VIOLATION OF
THE SHERMAN ACT, AND THE JUDGMENT DISMISSING THE COUNTERCLAIMS WITH
PREJUDICE IS SUSTAINED.  PP. 90-103. 

(A)  A PRIOR JUDGMENT BETWEEN PARTIES OPERATES AS AN ESTOPPEL IN A
SUIT ON A CAUSE OF ACTION DIFFERENT FROM THAT FORMING THE BASIS FOR THE
ORIGINAL SUIT ONLY AS TO THOSE MATTERS IN ISSUE OR POINTS CONTROVERTED,
UPON THE DETERMINATION OF WHICH THE FINDING OR VERDICT WAS RENDERED. 
P. 91. 

(B)  THE DISTRICT COURT DID NOT ERR IN DISMISSING PARTMAR'S
COUNTERCLAIMS WITH PREJUDICE AND WITHOUT A SEPARATE TRIAL AS TO THEIR
MERITS, AND SUCH DISMISSAL DID NOT DEPRIVE PARTMAR OF DUE PROCESS OF
LAW.  PP. 100-103. 

(C)  THE POWER REMAINED IN THE TRIAL COURT UNTIL ENTRY OF ITS FINAL
JUDGMENT TO SET ASIDE, FOR APPROPRIATE REASONS, THE FORMER ORDER FOR
THE SEPARATE TRIAL OF THE COUNTERCLAIMS.  P. 100. 

(D)  A SEPARATE TRIAL ON THE COUNTERCLAIMS WOULD HAVE BEEN AN
IMPROPER PROCEDURE, AS THE JUDGMENT ENTERED IN PARAMOUNT'S SUIT WAS A
FINAL DISPOSITION OF THE DETERMINATIVE ISSUE ON THE COUNTERCLAIMS -
WHETHER OR NOT THE TERMS OF THE LEASE WERE THE PRODUCT OF AN ILLEGAL
CONSPIRACY.  PP. 100-101. 

(E)  PARTMAR WAS NOT PREJUDICED BY THE FAILURE OF THE DISTRICT COURT
TO CONSIDER EITHER THE JUDGMENT OR THE DECREE IN THE GOVERNMENT'S
ANTITRUST SUIT AS EVIDENCE OF THE CONSPIRACY ALLEGED IN THE
COUNTERCLAIMS.  PP. 102-103. 

PARTMAR CORPORATION ET AL. V. PARAMOUNT PICTURES THEATRES CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

IN A SUIT BY RESPONDENTS TO DECLARE A LEASE PROPERLY TERMINATED AND
TO REGAIN POSSESSION OF A THEATRE, THE DISTRICT COURT DECIDED THAT
ISSUE IN FAVOR OF PETITIONERS BUT DISMISSED PETITIONERS' COUNTERCLAIMS
FOR TREBLE DAMAGES UNDER THE ANTITRUST LAWS.  97 F. SUPP. 552.  THE
COURT OF APPEALS AFFIRMED.  200 F.2D 561.  THIS COURT GRANTED
CERTIORARI.  345 U.S. 963.  AFFIRMED, P. 103. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A MATTER OF FEDERAL PRACTICE INVOLVING
INCONSISTENT POSITIONS BY LITIGANTS IN COURT PROCEEDINGS.  WE HAVE
OFTEN HELD THAT UNDER THE DOCTRINE OF RES JUDICATA A JUDGMENT ENTERED
IN AN ACTION CONCLUSIVELY SETTLES THAT ACTION AS TO ALL MATTERS THAT
WERE OR MIGHT HAVE BEEN LITIGATED OR ADJUDGED THEREIN.  (FN1)  BUT A
PRIOR JUDGMENT BETWEEN THE PARTIES HAS BEEN HELD TO OPERATE AS AN
ESTOPPEL IN A SUIT ON A CAUSE OF ACTION DIFFERENT FROM THAT FORMING THE
BASIS FOR THE ORIGINAL SUIT "ONLY AS TO THOSE MATTERS IN ISSUE OR
POINTS CONTROVERTED, UPON THE DETERMINATION OF WHICH THE FINDING OR
VERDICT WAS RENDERED."  (FN2)  THIS LATTER ASPECT OF RES JUDICATA IS
THE DOCTRINE OF COLLATERAL ESTOPPEL BY JUDGMENT, ESTABLISHED AS A
PROCEDURE FOR CARRYING OUT THE PUBLIC POLICY OF AVOIDING REPETITIOUS
LITIGATION. 

PETITIONERS ENTERED COUNTERCLAIMS IN A SUIT AGAINST THEM BY
RESPONDENT.  THESE COUNTERCLAIMS WERE DISMISSED BY THE TRIAL COURT UPON
DETERMINATION OF THE ORIGINAL SUIT FOR PETITIONERS AND AGAINST
RESPONDENTS.  THE CAUSE OF ACTION STATED IN PETITIONERS' COUNTERCLAIMS
IS BASED UPON A CONTROVERTED PERSONAL RIGHT THAT HAD NOT BEEN ADJUDGED
AND THEREFORE RES JUDICATA IS NO BAR TO THE CLAIMED RIGHT OF RECOVERY. 
RESPONDENT, HOWEVER, IN ITS ORIGINAL SUIT HAD RAISED AN ISSUE,
DETERMINATIVE OF ITS CAUSE OF ACTION, WHICH HAD BEEN THEREIN
SUCCESSFULLY CONTROVERTED BY PETITIONERS TO FINAL JUDGMENT ON THE
MERITS.  COLLATERAL ESTOPPEL STANDS AS A BAR TO FURTHER LITIGATION BY
THE PARTIES OF THIS ISSUE, AND THIS ISSUE WAS HELD BY THE TRIAL COURT
TO BE DETERMINATIVE OF PETITIONERS' COUNTERCLAIMS.   PETITIONERS'
ARGUMENT THAT THE DISMISSAL DENIED A HEARING OF ISSUES THAT MIGHT HAVE
BEEN BUT WERE NOT DETERMINED BY THE JUDGMENT ON THE MERITS OF THE
ORIGINAL ACTION MOVED US TO GRANT CERTIORARI, LIMITED TO THE ISSUE OF
THE COUNTERCLAIMS.  345 U.S. 963. 

ALTHOUGH FEDERAL JURISDICTION WAS SOUGHT ONLY ON THE GROUND OF
DIVERSITY, THE COMPLAINT RELIED UPON A BREACH OF THE SHERMAN ACT, AND
THE COUNTERCLAIMS WERE SIMILARLY BOTTOMED ON THAT FEDERAL LAW. 
THEREFORE OUR CONCLUSION IS REACHED ON A CONSIDERATION OF FEDERAL LAW
AND PROCEDURE.  IT WILL DEPEND UPON WHETHER OR NOT ANY ISSUE OF FACT OR
LAW REMAINED FOR DECISION AFTER THE PRIMARY ACTION WAS DECIDED.  (FN3)
THE ISSUE REACHES US UNDER THE FOLLOWING CIRCUMSTANCES. 

PARAMOUNT PICTURES THEATRES CORP., A SUBSIDIARY OF PARAMOUNT
PRODUCTIONS, INC., AND SUCCESSOR TO PARAMOUNT PICTURES, INC., IS A NEW
YORK CORPORATION ENGAGED IN THE BUSINESS OF OPERATING MOTION PICTURE
THEATRES THROUGHOUT THE UNITED STATES.  THESE THREE CORPORATIONS WILL
HEREINAFTER BE REFERRED TO JOINTLY AS "PARAMOUNT."  ON AUGUST 31, 1939,
PARAMOUNT LEASED THE PARAMOUNT DOWNTOWN THEATRE IN LOS ANGELES,
CALIFORNIA, FOR TEN YEARS TO PARTMAR CORP., A CALIFORNIA CORPORATION,
PETITIONER HERE, WHOLLY OWNED BY FANCHON & MARCO, INC. THIS LEASE WAS
SUBSEQUENTLY AMENDED IN 1942 AND EXTENDED TO MARCH 18, 1952.  A "FILM
FRANCHISE AGREEMENT" WAS EXECUTED IN CONJUNCTION WITH, AND FOR THE SAME
PERIOD AS, THE LEASE.  IT LICENSED PARTMAR TO EXHIBIT PARAMOUNT
PICTURES AT THE THEATRE AS FIRST "RUNS" OF THE FILMS, REQUIRED PARTMAR
TO EXHIBIT SUCH PICTURES NOT LESS THAN FORTY-SIX WEEKS EACH YEAR, AND
SET A SCALE OF LICENSE FEES.  THE LEASE EXPRESSLY PROVIDED THAT IT WAS
TERMINABLE AT THE OPTION OF PARAMOUNT IF THE FRANCHISE AGREEMENT "BE
CANCELLED OR TERMINATED FOR ANY REASON WHATSOEVER."  OTHER PROVISIONS
OF THE LEASE AND AGREEMENT ARE NOT GERMANE TO THE ISSUE BEFORE THIS
COURT. 

ON DECEMBER 31, 1946, A DECREE WAS ENTERED IN THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK IN AN EQUITY ACTION BROUGHT BY THE
UNITED STATES AGAINST PARAMOUNT AND OTHER MAJOR COMPANIES OF THE MOTION
PICTURE INDUSTRY ALLEGING A CONSPIRACY TO VIOLATE THE SHERMAN ACT, 26
STAT. 209, 15 U.S.C. SECS. 1-2.  UNITED STATES V. PARAMOUNT PICTURES,
INC., 70 F. SUPP. 53.  ONE PROVISION OF THAT DECREE DEFINED A
"FRANCHISE" TO BE A LICENSING AGREEMENT "IN EFFECT FOR MORE THAN ONE
MOTION PICTURE SEASON AND COVERING THE EXHIBITION OF PICTURES RELEASED
BY ONE DISTRIBUTOR DURING THE ENTIRE PERIOD OF AGREEMENT" AND ENJOINED
EACH OF THE DEFENDANTS IN THAT ACTION "FROM FURTHER PERFORMING ANY
EXISTING FRANCHISE TO WHICH IT IS A PARTY AND FROM MAKING ANY
FRANCHISES IN THE FUTURE."  ID., AT 73, DECREE, SEC. II, 5. 

ON MARCH 26, 1947, PARAMOUNT NOTIFIED PARTMAR THAT IT WAS CNACELLING
AND TERMINATING THE FRANCHISE AGREEMENT BECAUSE OF THE INJUNCTION, AND
ON APRIL 2, 1947, NOTIFIED PARTMAR THAT IT WAS TERMINATING THE LEASE BY
REASON OF THE TERMINATION OF THE FRANCHISE AGREEMENT.  PARTMAR REFUSED
TO VACATE THE THEATRE UPON DEMAND, AND PARAMOUNT INSTITUTED THIS ACTION
ON MAY 1, 1947, IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CALIFORNIA, ALLEGING DIVERSITY AND UNLAWFUL DETAINER OF THE THEATRE. 
THE COMPLAINT SOUGHT, SO FAR AS IS MATERIAL HERE, RESTITUTION OF
POSSESSION BASED ON ILLEGALITY OF THE FRANCHISE UNDER THE SHERMAN ACT
AS CONSTRUED IN THE DECREE IN THE SOUTHERN DISTRICT OF NEW YORK, SUPRA,
AND A DECLARATORY JUDGMENT THAT THE LEASE HAD BEEN PROPERLY
TERMINATED. 

PARTMAR AND FANCHON & MARCO, INC., ANSWERED SETTING UP VARIOUS
DEFENSES AND FILED THREE COUNTERCLAIMS SEEKING TREBLE DAMAGES UNDER 38
STAT. 731, 15 U.S.C. SEC. 15, RESULTING FROM A CONSPIRACY BETWEEN
PARAMOUNT AND OTHER MOTION PICTURE COMPANIES IN VIOLATION OF THE
SHERMAN ACT.  THE CONSPIRACY WAS ALLEGED TO HAVE RESULTED IN THE
IMPOSITION OF EXCESSIVE TERMS AND CONDITIONS ON PARTMAR BY THE LEASE
AND FRANCHISE AGREEMENT.  (FN4) 

BY ORDER DATED APRIL 26, 1948, THE DISTRICT COURT, UPON PARAMOUNT'S
MOTION, ORDERED PARAMOUNT'S CAUSES OF ACTION FOR UNLAWFUL DETAINER AND
DECLARATORY JUDGMENT TRIED SEPARATELY FROM PARTMAR'S COUNTERCLAIMS. 
PRIOR TO TRIAL ON MAY 3, 1948, WE HANDED DOWN OUR DECISION ON
PARAMOUNT'S AND THE OTHER DEFENDANTS' APPEALS FROM THE DECREE OF THE
SOUTHERN DISTRICT OF NEW YORK.  UNITED STATES V. PARAMOUNT PICTURES,
INC., 334 U.S. 131.  WE HELD INTER ALIA THAT "WE CANNOT SAY ON THIS
RECORD THAT FRANCHISES ARE ILLEGAL PER SE WHEN EXTENDED TO ANY THEATRE
OR CIRCUIT NO MATTER HOW SMALL" AND SET ASIDE THE DISTRICT COURT'S
FINDING RELATIVE TO SUCH FRANCHISES.  ID., AT 156.  RELYING ON THAT
DECISION PARTMAR AND FANCHON & MARCO, INC., MOVED IN THE SOUTHERN
DISTRICT OF CALIFORNIA FOR DISMISSAL OF PARAMOUNT'S ACTION AGAINST
THEM.  THEIR MOTION WAS DENIED AND THE CASE WENT TO TRIAL WITHOUT
AMENDMENT OF THE PLEADINGS IN NOVEMBER 1950, ON TWO ISSUES:  WHETER
PARAMOUNT WAS JUSTIFIED IN TERMINATING THE FRANCHISE AGREEMENT BECAUSE
OF THE DECREE IN THE NEW YORK PARAMOUNT CASE, SUPRA; WHETHER THE LEASE
AND CONTRACT WERE ILLEGAL CONTRACTS UNDER THE FEDERAL ANTITRUST
STATUTES JUSTIFYING REPOSSESSION OF THE THEATRE BY PARAMOUNT UNDER
CALIFORNIA LAW.  SEE, E.G., GLOS V. MCBRIDE, 47 CAL. APP. 688, 191 P.
67.  THUS ISSUE WAS JOINED AS TO THE LEGALITY OF THE ACTIONS OF
PARAMOUNT AND ITS ALLEGED CO-CONSPIRATORS RELATIVE TO THE LEASE AND
FRANCHISE AGREEMENT, WHOLLY APART FROM THE NEW YORK INJUNCTION, AND
PARAMOUNT WAS IN THE ANOMALOUS POSITION OF ATTEMPTING TO PROVE THAT ITS
AGREEMENTS WITH PARTMAR VIOLATED THE ANTITRUST LAWS.  PARAMOUNT DID NOT
LIMIT ITS CONTENTION OF ILLEGALITY OF THE AGREEMENT TO
NONCONSPIRATORIAL ASPECTS OF THE ANTITRUST LAWS, BUT ARGUED THAT IF THE
AGREEMENTS WERE ILLEGAL IN ANY WAY IT HAD THE RIGHT TO POSSESSION. 
THAT PARTMAR RECOGNIZED THIS POSITION IS CLEARLY SHOWN BY ITS STATEMENT
IN ITS BRIEF TO THE TRIAL COURT THAT "AFTER THE REVERSAL OF THAT
JUDGMENT (IN THE NEW YORK CASE), THE PLAINTIFF (PARAMOUNT) TOOK THE
POSITION THAT THE QUESTION PRESENTED WAS WHETHER THE FRANCHISE WAS
VIOLATIVE OF THE SHERMAN ACT, WHOLLY APART FROM ANY JUDGMENT OR THE
DECISIONS OF THE DISTRICT AND SUPREME COURTS."  PARTMAR VIGOROUSLY
CONTENDED IN BRIEF AND IN ARGUMENT THAT THE LEASE OF THE THEATRE AND
THE FRANCHISE FOR "FIRST-RUN" EXHIBITIONS DID NOT IN ANY WAY VIOLATE
THE SHERMAN ACT.  IT CLEARLY RECOGNIZED THAT ONE WAY THE FRANCHISE
MIGHT BE ILLEGAL WOULD BE IF IT WERE THE RESULT OF A CONSPIRACY, FOR IT
ARGUED IN ITS BRIEF THAT: 

"THERE WAS NO ALLEGATION OR PROOF OF CONSPIRACY.  THERE BEING NO
SHOWING OF INTERSTATE COMMERCE, IT IS IMMATERIAL WHETHER THERE WAS
CONSPIRACY, UNREASONABLE CLEARANCE, FIXED ADMISSION PRICES, BLOCK
BOOKING, OR UNREASONABLE RESTRAINT.  IN THE ABSENCE OF INTERSTATE
COMMERCE, ALL ELSE WAS ENTIRELY BEYOND THE PURVIEW OF THE SHERMAN ACT. 
BUT, ASSUMING THAT THERE HAD BEEN NO FAILURE TO PROVE INTERSTATE
COMMERCE, THE ABSENCE OF CONSPIRACY IS EQUALLY FATAL.  PROBABLY THE
ONLY EVIDENCE RELATIVE TO CONSPIRACY WAS THE STATEMENT OF Y. FRANK
FREEMAN, A WITNESS FOR PARAMOUNT, THAT THERE WERE NO CONSPIRATORIAL
ARRANGEMENTS BETWEEN PARAMOUNT AND FOX WEST COAST  ...  .  EVEN IN A
SETTING OF CONSPIRACY, IT IS DOUBTFUL THAT THE FRANCHISE WOULD BE
UNLAWFUL  ...  .  ON THE EVIDENCE IN THIS CASE THE PARTMAR FRANCHISE IS
NEITHER ONE OF A SYSTEM, OR MADE BY ONE HOLDING A DOMINANT POSITION, OR
PURSUANT TO A CONSPIRACY  ...  ." 

IT THUS INSISTED THAT THE REMUNERATIVE LEASE AND FRANCHISE AGREEMENTS
WERE STILL VALID AND SUBSISTING, AND THAT PARAMOUNT HAD NO RIGHT TO
POSSESSION. 

AFTER EIGHTEEN DAYS OF TRIAL THE DISTRICT JUDGE ON MAY 2, 1951, FILED
A MEMORANDUM OPINION, 97 F. SUPP. 552, IN WHICH HE CONCLUDED THAT THE
TERMINATION "FOR ANY REASON" CLAUSE IN THE LEASE MEANT FOR ANY "LEGAL
OR SUBSTANTIAL REASON," AND THAT THE 1946 DECREE OF THE SOUTHERN
DISTRICT OF NEW YORK "WAS NOT A LEGAL CAUSE OR REASON FOR TERMINATING
THE FRANCHISE AGREEMENT."  HE CONTINUED, "THERE IS NO EVIDENCE TO
INDICATE THAT ANY THIRD PARTY CONSPIRED WITH EITHER PARAMOUNT OR
PARTMAR TO BRING INTO EXISTENCE THE FRANCHISE AGREEMENT," THAT "A
SINGLE CONTRACT BETWEEN ONE FILM COMPANY AND ONE EXHIBITOR IS NOT
VIOLATIVE OF THE SHERMAN ACT," AND THAT, SINCE THE FRANCHISE AGREEMENT
WAS "NOT IN ITSELF AN ILLEGAL AGREEMENT," PARAMOUNT "HAD NO RIGHT TO
CANCEL OR TERMINATE IT BECAUSE OF ILLEGALITY."  THE COURT WENT ON TO
HOLD THAT "AS WE FIND NO SUBSTANTIAL EVIDENCE OF A CONSPIRACY IN THIS
CASE ON THE PART OF PARTMAR OR PARAMOUNT, WE ARE OF THE OPINION THAT
THE COUNTER-CLAIMANT CANNOT RECOVER" ON THE COUNTS SEEKING TREBLE
DAMAGES ON THE BASIS OF AN ALLEGED CONSPIRACY.  THE OPINION DIRECTED
PARTMAR TO SUBMIT PROPOSED FINDINGS OF FACT; BOTH PARTIES SUBMITTED
SUCH FINDINGS AND PROPOSED CONCLUSIONS; AND A HEARING, UPON NOTICE, WAS
HELD ON JUNE 18, 1951.  PARAMOUNT THEREUPON SUBMITTED FINDING NO. 20
AND CONCLUSION NO. 11, INFRA, THUS FORMALIZING ITS CONTENTION THAT THE
JUDGMENT DENYING PLAINTIFF'S PETITION ESTOPPED DEFENDANT FROM
RECOVERING ON ITS COUNTERCLAIMS FOR VIOLATION OF THE SHERMAN ACT.  AT
THIS HEARING PARTMAR APPEARED AND EXPRESSLY OBJECTED TO THE ADOPTION OF
THE PROPOSED FINDING AND CONCLUSION WHICH REQUIRED THE DISMISSAL OF ITS
TREBLE-DAMAGE COUNTERCLAIMS.  ARGUMENT WAS HEARD ON PARTMAR'S
OBJECTION, BUT THE COURT ADHERED TO ITS POSITION AND ADOPTED AMONG ITS
FINDINGS NO. 20 WHICH PROVIDES: 

"PARAMOUNT, NOT IN CONJUNCTION WITH ANY OTHER MAJOR STUDIO, ENTERED
INTO THE FRANCHISE AGREEMENT WHICH GAVE TO PARTMAR THE RIGHT TO EXHIBIT
THE FIRST-RUN FEATURE PICTURES OF PARAMOUNT IN THE CITY OF LOS
ANGELES.  NEITHER SAID FRANCHISE AGREEMENT, NOR SAID LEASE, NOR ANY
AMENDMENT TO EITHER OF THEM CONSTITUTED ANY PART OF, NOR WERE THEY OR
ANY OF THEM ENTERED INTO AS A RESULT OF ANY AGREEMENT, COMBINATION OR
CONSPIRACY OF ANY KIND WHATSOEVER BETWEEN PARAMOUNT AND ANY OTHER
PERSON OR PERSONS, NOR BETWEEN PARTMAR AND ANY OTHER PERSON OR
PERSONS." 

AND CONCLUSION NO. 11 WHICH PROVIDES: 

"INASMUCH AS THE SAID LEASE AND SAID FRANCHISE AGREEMENT AND ALL
AMENDMENTS TO EACH OF THEM WERE IN ALL RESPECTS LAWFUL AND WERE NOT
ENTERED INTO NOR PERFORMED AS A RESULT OF ANY COMBINATION OR CONSPIRACY
OF ANY KIND WHATSOEVER ON THE PART OF EITHER PLAINTIFFS, DEFENDANTS,
THIRD PARTY PLAINTIFF OR THIRD PARTY DEFENDANTS, WITH ANY PERSON OR
PERSONS; INASMUCH AS SAID LEASE, SAID AGREEMENT AND AMENDMENTS THERETO
HAVE NEITHER THE PURPOSE OR EFFECT OF RESTRAINING OR MONOPOLIZING TRADE
OR COMMERCE AMONG THE SEVERAL STATES IN THE PRODUCTION, DISTRIBUTION,
TRANSPORTATION, SALE OR EXHIBITION OF MOTION PICTURES; AND INASMUCH AS
EACH WAS AN AGREEMENT SOLELY BETWEEN PLAINTIFF AND DEFENDANTS, OR
DEFENDANTS AND THIRD PARTY PLAINTIFFS AND THIRD PARTY DEFENDANTS
DEALING SOLELY WITH THE PARAMOUNT THEATRE LOS ANGELES ALONE AND THE
EXHIBITION OF PICTURES THEREAT; THIRD PARTY PLAINTIFFS, AND EACH OF
THEM, CANNOT RECOVER UPON THE FIRST, SECOND AND FOURTH COUNTERCLAIM, OR
ANY OF THEM."  (FN5)    THE COURT SIMULTANEOUSLY ENTERED AN ORDER
GIVING JUDGMENT FOR PARTMAR ON PARAMOUNT'S TWO COUNTS OF UNLAWFUL
DETAINER, DECLARING THE RIGHTS AND DUTIES OF THE PARTIES UNDER THE
FRANCHISE AND THE LEASE, AND DISMISSING WITH PREJUDICE PARTMAR'S THREE
TREBLE-DAMAGE COUNTERCLAIMS. 

PARTMAR, APPARENTLY NOT WISHING TO JEOPARDIZE ITS VALUABLE LEASE AND
FRANCHISE, TOOK NO APPEAL FROM PARTS OF THE DISTRICT COURT'S JUDGMENT
DECLARING THE LEASE AND FRANCHISE TO BE VALID AND SUBSISTING AND THE
THEATRE NOT TO BE UNLAWFULLY DETAINED.  (FN6)  THEREFORE THOSE PARTS OF
THE JUDGMENT MUST BE ACCEPTED AS VALID AND BINDING ON THE PARTIES. 
PARTMAR DID, HOWEVER, SERVE TIMELY NOTICE OF APPEAL TO THE COURT OF
APPEALS FOR THE NINTH CIRCUIT FROM SO MUCH OF THE DISTRICT COURT
JUDGMENT AS DISMISSED WITH PREJUDICE THE TREBLE-DAMAGE COUNTERCLAIMS. 
THE COURT OF APPEALS FOR THE NINTH CIRCUIT, IN A PER CURIAM OPINION ON
DECEMBER 16, 1952, 200 F.2D 561, NOTED AGREEMENT WITH THE OPINION OF
THE DISTRICT COURT AND AFFIRMED THE DISTRICT COURT JUDGMENT.  AS
HERETOFORE INDICATED, OUR CONSIDERATION IS "LIMITED TO THE ISSUE OF THE
COUNTERCLAIMS." 

PARTMAR CONTENDS THAT THE DISTRICT COURT ERRED IN DISMISSING ITS
COUNTERCLAIMS WITH PREJUDICE WITHOUT A SEPARATE TRIAL AS TO THEIR
MERITS, WHICH THE TRIAL COURT HAD PREVIOUSLY ORDERED, AND THAT SUCH
DISMISSAL DEPRIVED IT OF DUE PROCESS OF LAW.  IN PARTICULAR, IT ARGUES
THAT IT WAS DENIED THE VALUABLE PROPERTY RIGHT OF HAVING ADMITTED IN
EVIDENCE DURING A TRIAL THE JUDGMENT IN THE CASE OF UNITED STATES V.
PARAMOUNT PICTURES, INC., 334 U.S. 131, WHICH, IT ARGUES, WOULD
PROVIDE, UNDER SEC. 5 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. SEC.
16, PRIMA FACIE EVIDENCE OF THE CONSPIRACY ON WHICH THE COUNTERCLAIMS
WERE BASED.  WE THINK THESE CONTENTIONS ARE WITHOUT MERIT.  THE POWER
REMAINED IN THE TRIAL COURT UNTIL THE ENTRY OF HIS FINAL JUDGMENT TO
SET ASIDE, FOR APPROPRIATE REASONS, THE FORMER ORDER FOR SEPARATE TRIAL
OF THE COUNTERCLAIMS. 

EACH OF PARTMAR'S COUNTERCLAIMS FOR TREBLE DAMAGES WAS PREDICATED
UPON ALLEGATIONS THAT PARAMOUNT AND ITS ALLEGED CO-CONSPIRATORS ENGAGED
IN A CONSPIRACY IN RESTRAINT OF TRADE AND COMMERCE, AND THAT THE
ALLEGEDLY "EXCESSIVE TERMS, CONDITIONS AND CHARGES FOR THE PHOTOPLAYS
MADE AND RELEASED BY THEM" AND THE EXACTION OF FIFTY PERCENT OF THE NET
RECEIPTS, IMPOSED BY THE LEASE AND FRANCHISE AGREEMENT, WERE PART OF
SUCH CONSPIRACY.  THE DISTRICT COURT FOUND IN THE PRINCIPAL ACTION,
WHICH DECISION WAS NOT APPEALED AND IS NOT BEFORE US, THAT NEITHER THE
LEASE NOR THE FRANCHISE WAS THE RESULT "OF ANY AGREEMENT, COMBINATION
OR CONSPIRACY OF ANY KIND WHATSOEVER."  OF COURSE, IF THIS FINDING WERE
NOT MATERIAL TO THE PRINCIPAL ACTION, THE DOCTRINE OF COLLATERAL
ESTOPPEL WOULD NOT APPLY.  BUT THIS FINDING WAS OBVIOUSLY NECESSARY TO
THE COURT'S JUDGMENT THAT THE AGREEMENTS WERE NOT ILLEGAL.  PARTMAR HAD
AMPLE OPPORTUNITY UPON TRIAL TO PRESENT EVIDENCE AND TO CONTEST THE
CONSPIRACY FINDING, AND ARGUMENT WAS HEARD PRIOR TO ADOPTION OF THE
FINDINGS.  THIS FINDING, BINDING ALL OF THE PARTIES, DETERMINED THE KEY
INGREDIENT OF PARTMAR'S COUNTERCLAIMS CONTRARY TO ITS ALLEGATIONS AND
THUS PRECLUDED RECOVERY UPON SUCH CLAIMS.  A SEPARATE TRIAL ON THE
COUNTERCLAIMS WOULD HAVE BEEN IMPROPER PROCEDURE, AS THE JUDGMENT
ENTERED ON THE COMPLAINT WAS A FINAL DISPOSITION OF THE DETERMINATIVE
ISSUE ON THE COUNTERCLAIMS - WHETHER OR NOT THE TERMS OF THE LEASE WERE
A PRODUCT OF AN ILLEGAL CONSPIRACY.  (FN7) 

THE ALLEGATIONS OF THE COUNTERCLAIMS CHARGE THAT AS A RESULT OF "THE
SAME CONSPIRACY STATED IN THE COMPLAINT" IN UNITED STATES V. PARAMOUNT
PICTURES, INC., 334 U.S. 131, PARTMAR WAS DAMAGED IN THE TERMS OF ITS
LEASE FROM PARAMOUNT.  YET THIS VERY LEASE WAS SUSTAINED BY THE
JUDGMENT IN THIS CASE ON THE GROUND THAT IT WAS NOT VIOLATIVE OF THE
SHERMAN ACT.  PARTMAR MOVED TO DISMISS THE COMPLAINT IN THIS CASE AFTER
THIS COURT'S DECISION IN THE PARAMOUNT PICTURES CASE ON THE GROUND THAT
IT "HAD BECOME MOOT BY THE DEMONSTRATED NONEXISTENCE OF THE BASIC
FACT," I.E., THE ILLEGALITY OF THE LEASE.  IN ITS BRIEF IN THE TRIAL
COURT, PETITIONER STATED ITS POSITION CLEARLY: 

"THE EFFECT OF THE OPINION SEEMS TO BE THAT FRANCHISES ARE NOT
UNLAWFUL PER SE, THAT IS, APART FROM CONSPIRACY, AND THAT ON THE RECORD
IN THAT CASE THEY WERE NOT SHOWN TO HAVE BEEN PARTS OF THE CONSPIRACY. 

     *         *         *         *    * 

"THE SUPREME COURT SEEMS AT LEAST TO HAVE CLEARLY INDICATED THAT A
FRANCHISE WITH ONE EXHIBITOR FOR ONE THEATRE, LIKE THAT WITH PARTMAR,
WAS NOT INVOLVED IN THE CASE.  IT SAID IN EFFECT THAT ONLY FRANCHISES
WITH DEFENDANTS AND FRANCHISES FOR THEATRES IN A CIRCUIT WERE
INVOLVED." 

NOR WOULD UNLIMITED ADMISSION IN EVIDENCE OF THE FINAL DECREE IN
UNITED STATES V. PARAMOUNT PICTURES, INC., SUPRA, HAVE AIDED PARTMAR. 
WE HAD REVERSED THE ONLY FINDING IN THAT CASE PERTAINING TO THE
ILLEGALITY UNDER THE SHERMAN ACT OF FRANCHISE AGREEMENTS BETWEEN
EXHIBITORS AND PRODUCERS, AND THE FINAL CONSENT DECREE AS TO PARAMOUNT
ENTERED ON MARCH 4, 1949, CONTAINS NO FINDINGS ON SUCH SUBJECT.  CF.
UNITED STATES V. PARAMOUNT PICTURES, INC., 85 F. SUPP. 881, 897.  SINCE
FINAL JUDGMENTS OR DECREES IN GOVERNMENT ANTITRUST ACTIONS ARE
ADMISSIBLE UNDER SEC. 5 OF THE CLAYTON ACT AS PRIMA FACIE EVIDENCE ONLY
OF ISSUES ACTUALLY DETERMINED IN THE PRIOR ADJUDICATION, (FN8) THE
GOVERNMENT JUDGMENTS PROVIDE NO PROOF OF THE INDISPENSABLE ELEMENT TO
PARTMAR'S COUNTERCLAIMS, THAT THE LEASE AND FRANCHISE WERE PART OF OR
THE RESULT OF A CONSPIRACY.  FROM THE DECREE THERE WOULD HAVE BEEN
PRIMA FACIE EVIDENCE OF A CONSPIRACY BUT NO EVIDENCE THAT THE PARTMAR
LEASE WAS A RESULT OF THAT CONSPIRACY SO AS TO OVERTURN THE TRIAL
COURT'S FINDING IN THIS VERY PROCEEDING THAT NO ILLEGALITY TAINTED THE
LEASE.  PARTMAR, THEREFORE, WAS NOT PREJUDICED BY THE FACT THAT THE
DISTRICT COURT DID NOT CONSIDER EITHER THE JUDGMENT OR THE DECREE AS
EVIDENCE OF THE CONSPIRACY ALLEGED IN THE COUNTERCLAIMS.  AS WE HAVE
POINTED OUT, THE CONCLUSION OF THE TRIAL COURT WENT BEYOND THE
LAWFULNESS OF THE "FRANCHISE," AS DISTINGUISHED FROM THE LEASE OF WHICH
IT WAS A PART, AND HELD THAT THE LEASE WAS NOT SECURED BY CONSPIRACY. 
SEE P. 96, SUPRA.  THIS WAS RES JUDICATA OF THAT FACT, IF IT BE
CONSIDERED A FACT, AND NONETHELESS RES JUDICATA IF IT IS A DECISION ON
THE LAW, BINDING IN ANOTHER CAUSE OF ACTION ARISING FROM THE SAME
CONTROVERSY OR CLAIM.  (FN9)  AFFIRMED. 

FN1  CROMWELL V. COUNTY OF SAC, 94 U.S. 351, 352; FAYERWEATHER V.
RITCH, 195 U.S. 276, 300, 308; GUNTER V. ATLANTIC COAST LINE R. CO.,
200 U.S. 273, 290; STOLL V. GOTTLIEB, 305 U.S. 165. 

FN2  CROMWELL V. COUNTY OF SAC, SUPRA, AT 353; UNITED STATES V.
MOSER, 266 U.S. 236, 241; TREINIES V. SUNSHINE MINING CO., 308 U.S. 66,
74; COMMISSIONER V. SUNNEN, 333 U.S. 591, 597-601.  CF. FEDERAL TRADE
COMMISSION V. CEMENT INSTITUTE, 333 U.S. 683, 706, WHERE THE RULE IS
RECOGNIZED BUT ITS APPLICATION DENIED BECAUSE THE ISSUES DIFFERED. 

FN3  SEE SCOTT, COLLATERAL ESTOPPEL BY JUDGMENT, 56 HARV. L. REV. 1;
NOTE, COLLATERAL ESTOPPEL BY JUDGMENT, 52 COL. L. REV. 647. 

FN4  PETITIONER'S FIRST COUNTERCLAIM ALLEGED: 

"27.  PARAMOUNT PICTURES THEATRES CORPORATION, PARAMOUNT PICTURES,
INC., PARAMOUNT FILM DISTRIBUTING CORPORATION,  ...  AND THE DEFENDANTS
IN UNITED STATES OF AMERICA V. PARAMOUNT PICTURES, INC., ET AL., EQUITY
NO. 87-273, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND OTHER PERSONS TO THE DEFENDANTS UNKNOWN,
WERE, AT THE TIME OF THE ACTS AND TRANSACTIONS STATED IN THE COMPLAINT
HEREIN, AND THEY NOW ARE, ENGAGED IN A CONSPIRACY IN RESTRAINT OF TRADE
AND COMMERCE AMONG THE STATES, IN THE DISTRIBUTION AND EXHIBITION OF
MOTION PICTURES, IN VIOLATION OF THE ACT OF JULY 2, 1890, THAT IS TO
SAY, THE SAME CONSPIRACY STATED IN THE COMPLAINT IN THAT CASE. 

     *       *         *         *         * 

"32.  THIS ACTION HAS BEEN BROUGHT BY THE PLAINTIFF IN PURSUANCE OF
THE AFORESAID CONSPIRACY, ARRANGEMENTS AND AGREEMENTS, AND TO EVADE AND
DEFEAT THE PURPOSE TO END THE AFORESAID CONSPIRACY AND RESTRAINT OF
TRADE FOR WHICH UNITED STATES OF AMERICA V. PARAMOUNT PICTURES, INC.,
ET AL., EQUITY NO. 87-273, WAS INSTITUTED. 

"33.  AS PART OF THE AFORESAID CONSPIRACY, THE PLAINTIFF AND THE
THIRD-PARTY DEFENDANTS ARRANGED AND AGREED AMONG THEMSELVES, TO REQUIRE
PARTMAR CORPORATION TO LICENSE FOR EXHIBITION AT THE PARAMOUNT THEATRE
FOR 46 WEEKS OF EACH YEAR, ONLY PHOTOPLAYS MADE AND RELEASED BY
PARAMOUNT PICTURES, INC., AND, FOR ANY FAILURE UPON THE PART OF PARTMAR
CORPORATION TO OBEY THAT REQUIREMENT, TO EVICT IT FROM PARAMOUNT
THEATRE.  THE PLAINTIFF, AND THE THIRD-PARTY DEFENDANTS HAVE BEEN ABLE
TO IMPOSE, AND THEY HAVE IN FACT IMPOSED, UPON PARTMAR CORPORATION,
EXCESSIVE TERMS, CONDITIONS AND CHARGES FOR THE PHOTOPLAYS MADE AND
RELEASED BY THEM AND EXHIBITED AT THE PARAMOUNT THEATRE, FROM MARCH 2,
1933, TO THE PRESENT TIME." 

IN THE SECOND COUNTERCLAIM, THE THIRD-PARTY PLAINTIFFS (PETITIONERS)
REITERATED THEIR ALLEGATIONS OF CONSPIRACY AND BASED THEIR CLAIM FOR
DAMAGES ON AN ADDITION TO THE LEASE THAT REQUIRED PARTMAR "TO PAY AN
ADDITIONAL SUM; THAT IS TO SAY, FIFTY PER CENT OF THE NET RECEIPTS OF
PARTMAR CORPORATION AT THE PARAMOUNT THEATRE." 

THE OTHER COUNTERCLAIM IS NOT IN THE RECORD BUT THE BRIEFS INDICATE
THAT IT CONTAINED SUBSTANTIALLY THE SAME ALLEGATION AS NUMBERS ONE AND
TWO. 

FN5  PARTMAR HAD BROUGHT IN OTHER PARTIES AS THIRD-PARTY DEFENDANTS
UNDER FED. RULES CIV. PROC. 14.  THEIR PRESENCE IS NOT IMPORTANT IN
THIS PHASE OF THE CONTROVERSY. 

FN6  WHILE PARTMAR DID NOT APPEAL, IT MIGHT HAVE.  THE FINDING AND
CONCLUSION OF LAW JUST QUOTED WERE ESSENTIAL TO THE DETERMINATION OF
PARAMOUNT'S CLAIM FOR POSSESSION OF THE THEATRE.  PARAMOUNT'S POSITION
AFTER THIS COURT'S REVERSAL OF THE FRANCHISE PORTION OF THE NEW YORK
DECREE, WAS THAT THE AGREEMENTS WERE INVALID UNDER THE FEDERAL
ANTITRUST STATUTES AS THE PRODUCT OF AN ILLEGAL CONSPIRACY.  IT IS ONLY
WHEN A FINDING OF LAW OR FACT IS NOT NECESSARY FOR A DECREE THAT THE
PREVAILING PARTY MAY NOT APPEAL AND THE FINDING DOES NOT FORM THE BASIS
FOR COLLATERAL ESTOPPEL.  THIS IS SHOWN BY THE CASE CITED TO SUPPORT
THE STATEMENT AS TO APPEAL IN LINDHEIMER V. ILLINOIS BELL TELEPHONE
CO., 292 U.S. 151, 176.  SEE NEW YORK TELEPHONE CO. V. MALTBIE, 291
U.S. 645, AND CASES CITED.  ELECTRICAL FITTINGS CORP. V. THOMAS & BETTS
CO., 307 U.S. 241, STATED THE PRACTICE NEGATIVELY.  "A PARTY MAY NOT
APPEAL  ...  FINDINGS  ...  NOT NECESSARY TO SUPPORT THE DECREE." 
PROFESSOR SCOTT, NOTE 3, SUPRA, AT 12, CONCURS IN THIS VIEW. 
RESTATEMENT, JUDGMENTS, SEC. 68 READS:  "(1) WHERE A QUESTION OF FACT
ESSENTIAL TO THE JUDGMENT IS ACTUALLY LITIGATED AND DETERMINED BY A
VALID AND FINAL JUDGMENT, THE DETERMINATION IS CONCLUSIVE BETWEEN THE
PARTIES IN A SUBSEQUENT ACTION ON A DIFFERENT CAUSE OF ACTION, EXCEPT
AS STATED IN SECS. 69, 71 AND 72."  SECTION 69(2) ("WHERE A PARTY TO A
JUDGMENT CANNOT OBTAIN THE DECISION OF AN APPELLATE COURT BECAUSE THE
MATTER DETERMINED AGAINST HIM IS IMMATERIAL OR MOOT, THE JUDGMENT IS
NOT CONCLUSIVE AGAINST HIM IN A SUBSEQUENT ACTION ON A DIFFERENT CAUSE
OF ACTION.")  IS IMMATERIAL BECAUSE THE CONSPIRACY DETERMINATION WAS
ESSENTIAL FOR PARTMAR'S DEFENSE TO PARAMOUNT'S CLAIM.  SEE GALLOWAY V.
GENERAL MOTORS ACCEPTANCE CORP., 106 F.2D 466.  THE PAUCITY OF CASES IN
THIS FIELD IS EXPLAINABLE BY THE INFREQUENT HAPPENING OF A NEED OF A
PREVAILING PARTY TO SET ASIDE A DETERMINATION NECESSARY TO A JUDGMENT
IN HIS FAVOR. 

FN7  SOUTHERN PACIFIC R. CO. V. UNITED STATES, 168 U.S. 1, 48-49: 

"THE GENERAL PRINCIPLE ANNOUNCED IN NUMEROUS CASES IS THAT A RIGHT,
QUESTION OR FACT DISTINCTLY PUT IN ISSUE AND DIRECTLY DETERMINED BY A
COURT OF COMPETENT JURISDICTION, AS A GROUND OF RECOVERY, CANNOT BE
DISPUTED IN A SUBSEQUENT SUIT BETWEEN THE SAME PARTIES OR THEIR
PRIVIES; AND EVEN IF THE SECOND SUIT IS FOR A DIFFERENT CAUSE OF
ACTION, THE RIGHT, QUESTION OR FACT ONCE SO DETERMINED MUST, AS BETWEEN
THE SAME PARTIES OR THEIR PRIVIES, BE TAKEN AS CONCLUSIVELY
ESTABLISHED, SO LONG AS THE JUDGMENT IN THE FIRST SUIT REMAINS
UNMODIFIED." 

FN8  EMICH MOTORS CORP. V. GENERAL MOTORS CORP., 340 U.S. 558, 568
569: 

"WE THINK THAT CONGRESS INTENDED TO CONFER, SUBJECT ONLY TO A
DEFENDANT'S ENJOYMENT OF ITS DAY IN COURT AGAINST A NEW PARTY, AS LARGE
AN ADVANTAGE AS THE ESTOPPEL DOCTRINE WOULD AFFORD HAD THE GOVERNMENT
BROUGHT SUIT. 

"THE EVIDENTIARY USE WHICH MAY BE MADE UNDER SEC. 5 OF THE PRIOR
CONVICTION OF RESPONDENTS IS THUS TO BE DETERMINED BY REFERENCE TO THE
GENERAL DOCTRINE OF ESTOPPEL  ...  .  ACCORDINGLY, WE THINK PLAINTIFFS
ARE ENTITLED TO INTRODUCE THE PRIOR JUDGMENT TO ESTABLISH PRIMA FACIE
ALL MATTERS OF FACT AND LAW NECESSARILY DECIDED BY THE CONVICTION AND
THE VERDICT ON WHICH IT WAS BASED." 

SEE THEATRE ENTERPRISES V. PARAMOUNT CORP., 346 U.S. 537; MONTICELLO
TOBACCO CO., INC. V. AMERICAN TOBACCO CO., 197 F.2D 629. 

FN9  UNITED STATES V. MOSER, 266 U.S. 236, 242: 

"THE CONTENTION OF THE GOVERNMENT SEEMS TO BE THAT THE DOCTRINE OF
RES JUDICATA DOES NOT APPLY TO QUESTIONS OF LAW; AND, IN A SENSE, THAT
IS TRUE.  IT DOES NOT APPLY TO UNMIXED QUESTIONS OF LAW.  WHERE, FOR
EXAMPLE, A COURT IN DECIDING A CASE HAS ENUNCIATED A RULE OF LAW, THE
PARTIES IN A SUBSEQUENT ACTION UPON A DIFFERENT DEMAND ARE NOT ESTOPPED
FROM INSISTING THAT THE LAW IS OTHERWISE, MERELY BECAUSE THE PARTIES
ARE THE SAME IN BOTH CASES.  BUT A FACT, QUESTION OR RIGHT DISTINCTLY
ADJUDGED IN THE ORIGINAL ACTION CANNOT BE DISPUTED IN A SUBSEQUENT
ACTION, EVEN THOUGH THE DETERMINATION WAS REACHED UPON AN ERRONEOUS
VIEW OR BY AN ERRONEOUS APPLICATION OF THE LAW." 

EMICH MOTORS CORP. V. GENERAL MOTORS CORP., 340 U.S. 558, 569; CF.
UNITED STATES V. STONE & DOWNER CO., 274 U.S. 225, 230.    MR. JUSTICE
JACKSON AND MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

(FOR DISSENTING OPINION OF MR. CHIEF JUSTICE WARREN, JOINED BY MR.
JUSTICE BLACK, SEE P. 104.) 

MR. CHIEF JUSTICE WARREN, WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

I CANNOT JOIN IN THE COURT'S DECISION.  RELYING ON THE DOCTRINE OF
COLLATERAL ESTOPPEL, IT AFFIRMS THE TRIAL JUDGE'S DISMISSAL OF
PETITIONER'S TREBLE-DAMAGE COUNTERCLAIMS WITHOUT A TRIAL.  THE
DOCTRINE, I BELIEVE, IS INAPPLICABLE TO THE FACTS OF THIS CASE.    THE
COURT CORRECTLY STATES THE WELL-SETTLED RULE THAT A PRIOR JUDGMENT ON A
DIFFERENT CAUSE OF ACTION IS NOT CONCLUSIVE AS TO QUESTIONS WHICH MIGHT
HAVE BEEN BUT WERE NOT ACTUALLY LITIGATED IN THE ORIGINAL ACTION. 
(FN1)  THE INQUIRY, THEREFORE, MUST BE WHETHER THE CONSPIRACY ISSUE WAS
ACTUALLY LITIGATED IN THE EVICTION SUIT; IF IT WAS NOT SO LITIGATED,
THE DISTRICT COURT'S FINDING AS TO THE ABSENCE OF EVIDENCE OF
CONSPIRACY CANNOT PRECLUDE PETITIONER ON ITS COUNTERCLAIMS.  THE COURT
RESTS ITS DECISION ON THE ASSUMPTIONS (1) THAT THE CONSPIRACY ISSUE WAS
LITIGATED IN THE EVICTION SUIT AND (2) THAT IN ANY EVENT PETITIONER HAD
A FULL OPPORTUNITY TO LITIGATE THE ISSUE.  NEITHER ASSUMPTION, IT SEEMS
TO ME, IS WARRANTED BY THE FACTS.  TO THOSE FACTS I NOW TURN. 

THE RESPONDENT, PARAMOUNT, SOUGHT TO TAKE ADVANTAGE OF ITS OWN
VIOLATION OF THE FEDERAL ANTITRUST LAWS BY BRINGING AN EVICTION SUIT TO
CANCEL A VALUABLE LEASE HELD BY ITS TENANT, THE PETITIONER, ON A LOS
ANGELES THEATRE.  THE LEASE PROVIDED THAT IT WAS TERMINABLE IF, "FOR
ANY REASON WHATSOEVER," PETITIONER'S FRANCHISE FOR THE SHOWING OF
PARAMOUNT'S PICTURES SHOULD BE "CANCELLED OR TERMINATED."  PARAMOUNT,
IN ITS COMPLAINT CHARGING UNLAWFUL DETAINER, DID NOT ALLEGE IN ANY
RESPECT THAT THE FRANCHISE WAS INVALID BECAUSE PART OF A CONSPIRACY;
RATHER, THE CRUX OF THE COMPLAINT WAS THAT THE FRANCHISE HAD BEEN
TERMINATED BY THE DISTRICT COURT DECREE IN THE GOVERNMENT ANTITRUST
ACTION AGAINST PARAMOUNT AND OTHERS.  UNITED STATES V. PARAMOUNT
PICTURES, INC., 66 F. SUPP. 323, 70 F. SUPP. 53.  AFTER THE EVICTION
COMPLAINT HAD BEEN FILED, THE DECREE IN THE GOVERNMENT ACTION WAS
REVIEWED HERE; THE COURT SUSTAINED THE DECREE AS TO THE EXISTENCE OF A
NATIONWIDE CONSPIRACY AMONG THE DEFENDANTS, BUT REVERSED THAT PORTION
OF THE DECREE WHICH HELD THAT FRANCHISES WERE ILLEGAL PER SE.  334 U.S.
131, 155-156.  PETITIONER MOVED TO DISMISS, CONTENDING THAT THE BASIS
OF THE EVICTION COMPLAINT HAD BEEN SWEPT AWAY BY THIS COURT'S
DECISION.  IN OPPOSING THE MOTION TO DISMISS, PARAMOUNT MADE AN ABOUT
FACE AND URGED THE ILLEGALITY OF THE FRANCHISE ON OTHER GROUNDS:  ITS
MINIMUM PRICE REQUIREMENTS, BLOCK BOOKING, AND RESTRICTIONS ON RUNS AND
CLEARANCES.  PARAMOUNT ALLEGED THAT THESE PROVISIONS OF THE FRANCHISE
AGREEMENT, APART FORM ANY CONSPIRACY AND INDEPENDENT OF THE DECREE IN
THE GOVERNMENT ACTION, RENDERED THE AGREEMENT AN ILLEGAL "CONTRACT  ...
IN RESTRAINT OF TRADE" UNDER THE SHERMAN ACT.  THIS NEW THEORY OF THE
CASE WAS ACCEPTED BY THE TRIAL COURT WITHOUT ANY CHANGE IN THE
PLEADINGS, AND THE MOTION WAS DENIED. 

IN ITS ANSWER, PETITIONER SET UP AS A DEFENSE THAT PARAMOUNT WAS
SEEKING TO EVICT PETITIONER IN PURSUANCE OF THE CONSPIRACY ENJOINED IN
UNITED STATES V. PARAMOUNT PICTURES, INC., SUPRA, AND THAT THE EFFECT
OF AN EVICTION WOULD BE TO DRIVE PETITIONER OUT OF BUSINESS AND THUS
ENABLE PARAMOUNT TO EXTEND AN UNLAWFUL MONOPOLY OVER MOTION PICTURE
THEATRES.  ON PARAMOUNT'S MOTION, THE DEFENSE WAS STRICKEN AS AN
IMPROPER COLLATERAL ATTACK ON THE RIGHT OF THE LESSOR TO RECOVER
POSSESSION OF THE THEATRE. 

THE ANSWER ALSO CONTAINED PETITIONER'S COUNTERCLAIMS, ALLEGING THAT
PARAMOUNT AND OTHERS NAMED AS CROSS-DEFENDANTS HAD ENGAGED IN THE
CONSPIRACY ENJOINED IN UNITED STATES V. PARAMOUNT PICTURES, INC.,
SUPRA, AND THAT BY REASON OF THIS MARKET CONTROL PARAMOUNT HAD BEEN
ABLE TO EXACT FROM PETITIONER MONOPOLY PROFITS IN THE FORM OF
OVERCHARGES FOR THEATRE AND FILM RENTALS.  TREBLE DAMAGES AND
INJUNCTIVE RELIEF WERE SOUGHT.  ON PARAMOUNT'S MOTION TO DISMISS THE
COUNTERCLAIMS, THEY WERE SUSTAINED AS VALID ACTIONS UNDER THE ANTITRUST
LAWS.  (FN2) 

BOTH ACTIONS - THE EVICTION SUIT AND THE COUNTERCLAIMS - WERE THEN
READY FOR TRIAL.  PARAMOUNT MOVED THAT THE TWO ACTIONS BE TRIED
SEPARATELY.  PETITIONER CONSENTED AND THE COURT SO ORDERED, THE
EVICTION SUIT TO BE TRIED FIRST. 

THROUGHOUT THE LENGTHY TRIAL OF THE EVICTION SUIT, THE TRIAL JUDGE
REPEATEDLY COMPLAINED OF THE TOTAL ABSENCE OF ANY EVIDENCE SHOWING THAT
THE FRANCHISE WAS PART OF A CONSPIRACY.  HIS COMPLAINT WENT UNHEEDED. 
PARAMOUNT, WHICH HAD THE BURDEN OF PROOF IN THE EVICTION SUIT, NOT ONLY
FAILED TO INTRODUCE SUCH EVIDENCE BUT NEVER EVEN ALLEGED SUCH A
CONSPIRACY.  PETITIONER, ON THE OTHER HAND, NEVER DENIED THE EXISTENCE
OF THE CONSPIRACY, BUT ARGUED THAT THE FRANCHISE IN ITSELF WAS NOT
INVALID.  (FN3)  AND BOTH TIMES THAT PETITIONER SOUGHT TO INJECT THE
CONSPIRACY ISSUE INTO THE CASE, IT WAS PREVENTED FROM DOING SO.  AS I
HAVE ALREADY NOTED, PETITIONER'S ANSWER ALLEGED THAT THE EVICTION SUIT
WAS BROUGHT IN PURSUANCE OF THE CONSPIRACY; ON PARAMOUNT'S MOTION, THE
DEFENSE WAS STRICKEN.  LATER WHEN PARAMOUNT OFFERED INTO EVIDENCE THE
DECREE IN THE GOVERNMENT ACTION FOR THE LIMITED PURPOSE OF SHOWING
PARAMOUNT AS BEING SUBJECT TO THE INJUNCTIVE FEATURES OF THE DECREE,
PETITIONER OBJECTED ON THE GROUND THAT THE DECREE "SHOULD GO IN AS A
DOCUMENT IN TOTO - NO PART OF IT BUT THE WHOLE THING."  IN SUPPORT OF
THE OBJECTION, PETITIONER ARGUED THAT SEC. 5 OF THE CLAYTON ACT (FN4)
MADE THE DECREE PRIMA FACIE EVIDENCE OF THE CONSPIRACY ESTABLISHED IN
THE GOVERNMENT ACTION.  AGAIN PETITIONER WAS OVERRULED. 

AT THE CONSLUSION OF THE EVICTION TRIAL, THE COURT GAVE JUDGMENT FOR
PETITIONER BECAUSE OF PARAMOUNT'S FAILURE TO SHOW THE ILLEGALITY OF THE
FRANCHISE BY EVIDENCE OF CONSPIRACY.  AS TO THE COUNTERCLAIMS, THE
COURT STATED:  (FN5) 

"AT THE TIME OF TRIAL IT WAS AGREED THAT ACTION ON THE COUNTER-CLAIMS
SHOULD BE POSTPONED UNTIL AFTER THE TRIAL OF THE MAIN ISSUE INVOLVED,
AND NO EVIDENCE WAS OFFERED BY EITHER PLAINTIFF OR DEFENDANT ON THE
COUNTER-CLAIMS." 

NEVERTHELESS, THE COURT DISMISSED THE COUNTERCLAIMS WITHOUT TRIAL ON
THE GROUND THAT THERE WAS " ...  NO SUBSTANTIAL EVIDENCE OF A
CONSPIRACY IN THIS CASE ON THE PART OF PARTMAR OR PARAMOUNT  ... ."
(FN6)  THE COURT THUS DISPOSED OF BOTH THE EVICTION SUIT AND THE
COUNTERCLAIMS ON THE SAME GROUND - THE ABSENCE OF ANY EVIDENCE OF
CONSPIRACY. 

I SUBMIT THAT ON THESE FACTS THE COURT'S TWO ASSUMPTIONS ARE
UNWARRANTED.  THE ISSUE OF CONSPIRACY WAS NOT LITIGATED; NOR DID
PETITIONER HAVE A FAIR OPPORTUNITY TO LITIGATE THE ISSUE.  INDEED,
WHETHER PETITIONER HAD AN OPPORTUNITY TO DO SO IS IMMATERIAL UNDER THE
DOCTRINE OF COLLATERAL ESTOPPEL.  IF THE COUNTERCLAIMS HAD BEEN BASED
ON THE SAME CAUSE OF ACTION AS THE EVICTION SUIT, SUCH AN OPPORTUNITY
MIGHT HAVE BARRED PETITIONER UNDER THE MORE SWEEPING DOCTRINE OF RES
JUDICATA.  BUT HERE, WHERE THE SECOND SUIT IS BASED ON A DIFFERENT
CAUSE OF ACTION, A NEGLECTED OPPORTUNITY IN THE FIRST ACTION TO
LITIGATE AN ISSUE IS WITHOUT LEGAL SIGNIFICANCE.  (FN7) 

UNDER THESE CIRCUMSTANCES, SHOULD THE DOCTRINE OF COLLATERAL ESTOPPEL
BE INVOKED AGAINST PETITIONER TO BAR A TRIAL ON ITS COUNTERCLAIMS?  I
BELIEVE NOT.  THE DOCTRINE PRESUPPOSES, AND THE CONSTITUTION REQUIRES,
THAT THE PARTY WHO IS ESTOPPED HAD HIS DAY IN COURT IN A PRIOR ACTION
AND THAT HE THEN HAD A FAIR HEARING IN WHICH TO PROVE HIS POINT BUT
FAILED.  SURELY THE DOCTRINE WAS NEVER INTENDED TO ESTOP A PARTY WHO IN
THE PRIOR ACTION WAS DENIED SUCH A HEARING. 

THAT, AS I SEE IT, IS PRECISELY THE SITUATION HERE.  THE EVICTION
SUIT AND COUNTERCLAIMS HAD BEEN SEVERED FOR TRIAL PURPOSES.  DURING THE
TRIAL OF THE EVICTION SUIT, PARAMOUNT WAS THE ONLY PARTY WITH ANY
REASON OR JUSTIFICATION FOR PROVING THAT THE FRANCHISE WAS PART OF A
CONSPIRACY.  BECAUSE OF PARAMOUNT'S FAILURE TO PRESENT SUCH PROOF, THE
COURT HELD THE LEASE TO BE VALID, BUT AT THE SAME TIME GAVE JUDGMENT
AGAINST PETITIONER ON ITS COUNTERCLAIMS BECAUSE OF THE SAME SHORTCOMING
OF PARAMOUNT'S PROOF.  THIS COURT NOW AFFIRMS.  THE ANOMALOUS RESULT IS
TO PENALIZE PETITIONER FOR REFUSING TO HELP PARAMOUNT WIN THE EVICTION
SUIT. 

I BELIEVE THAT PETITIONER HAS BEEN DENIED ITS DAY IN COURT, AND THAT
THE CASE SHOULD BE REVERSED WITH INSTRUCTIONS TO THE TRIAL COURT TO
HEAR THE COUNTERCLAIMS.  (FN8) 

FN1  CROMWELL V. COUNTY OF SAC, 94 U.S. 351, 353.  SEE ALSO
RESTATEMENT, JUDGMENTS, SEC. 68; SCOTT, COLLATERAL ESTOPPEL BY
JUDGMENT, 56 HARV. L. REV. 1, 2-3, 5-6; NOTE, COLLATERAL ESTOPPEL, 52
COL. L. REV. 647, 652-657; DEVELOPMENTS IN THE LAW, RES JUDICATA, 65
HARV. L. REV. 818, 840-841; VON MOSCHZISKER, RES JUDICATA, 38 YALE L.J.
299, 311-312; CLEARY, RES JUDICATA REEXAMINED, 57 YALE L.J. 339, 342
343; FREEMAN, JUDGMENTS (5TH ED.), SECS. 674-676. 

FN2  38 STAT. 731, 15 U.S.C. SEC. 15. 

FN3  THE COURT'S OPINION, APPARENTLY FOR THE PURPOSE OF SHOWING THAT
THE CONSPIRACY ISSUE WAS ACTUALLY LITIGATED, POINTS TO STATEMENTS IN
PETITIONER'S TRIAL BRIEF TO THE EFFECT THAT PARAMOUNT HAD FAILED TO
ESTABLISH A CONSPIRACY IN RESTRAINT OF INTERSTATE COMMERCE.  IT IS
DIFFICULT TO UNDERSTAND HOW PETITIONER'S ARGUMENT AT THE TRIAL THAT THE
CONSPIRACY ISSUE WAS NOT LITIGATED CAN NOW BE CONVERTED INTO PROOF THAT
THE ISSUE WAS LITIGATED.  PETITIONER'S STATEMENTS IN ITS BRIEF AMOUNTED
TO NOTHING MORE THAN A WHOLLY JUSTIFIABLE CONTENTION THAT PARAMOUNT HAD
FAILED IN ITS BURDEN OF PROOF IN THE EVICTION SUIT; THE STATEMENTS
MERELY POINTED OUT THAT THE FRANCHISE WAS VALID IN THE ABSENCE OF
EVIDENCE OF CONSPIRACY AND THAT PARAMOUNT HAD NOT EVEN ALLEGED A
CONSPIRACY - BY PLEADINGS, EVIDENCE, OR ORAL ARGUMENT. 

FN4  38 STAT. 731, 15 U.S.C. SEC. 16. 

FN5  97 F. SUPP. 552, 561. 

FN6  IBID. 

FN7  SEE NOTE 1, SUPRA. 

FN8  THERE IS YET AN ADDITIONAL REASON FOR NOT APPLYING THE DOCTRINE
OF COLLATERAL ESTOPPEL HERE.  PETITIONER, AS THE SUCCESSFUL PARTY IN
THE EVICTION SUIT, COULD NOT APPEAL THE DISTRICT COURT'S FINDING THAT
THERE WAS NO EVIDENCE OF CONSPIRACY.  LINDHEIMER V. ILLINOIS BELL
TELEPHONE CO., 292 U.S. 151, 176; NEW YORK TELEPHONE CO. V. MALTBIE,
291 U.S. 645.  THE ADVERSE FINDING WAS NOT INCLUDED IN THE COURT'S
DECREE, AS IN ELECTRICAL FITTINGS CORP. V. THOMAS & BETTS CO., 307 U.S.
241.   BECAUSE OF THIS INABILITY TO APPEAL, THE FINDING CANNOT BIND
PETITIONER IN A SUBSEQUENT ACTION BETWEEN THE PARTIES BASED UPON A
DIFFERENT CAUSE OF ACTION.  SEE RESTATEMENT, JUDGMENTS, SEC. 69(2);
SCOTT, COLLATERAL ESTOPPEL BY JUDGMENT, 56 HARV. L. REV. 1, 15-18. 

THE COURT'S OPINION (FOOTNOTE 6) CONCEDES THAT INABILITY TO APPEAL
PRECLUDES A SUBSEQUENT APPLICATION OF COLLATERAL ESTOPPEL, BUT CONTENDS
THAT PETITIONER COULD HAVE APPEALED HERE BECAUSE THE TRIAL COURT'S
FINDING IN THE EVICTION SUIT (AS TO THE ABSENCE OF PROOF OF CONSPIRACY)
WAS MATERIAL TO THE DECREE IN THE EVICTION SUIT.  THE COURT'S OPINION
CITES NO CASE, IN THIS COURT OR ANY OTHER, HOLDING THAT A SUCCESSFUL
PARTY CAN APPEAL FINDINGS WHICH ARE NOT INSERTED AS PART OF THE
DECREE.  INDEED, THE OPINION OVERLOOKS THE VERY HOLDINGS OF THIS COURT
ON WHICH IT RELIES FOR SUPPORT.  IN BOTH LINDHEIMER V. ILLINOIS BELL
TELEPHONE CO., SUPRA, AND NEW YORK TELEPHONE CO. V. MALTBIE, SUPRA, THE
FINDINGS WHICH THE PUBLIC UTILITY SOUGHT TO APPEAL RELATED TO THE VALUE
OF ITS PROPERTY FOR RATE-MAKING PURPOSES; IN EACH CASE, THE TRIAL COURT
HAD HELD THAT THE RATES FIXED BY A STATE COMMISSION WERE CONFISCATORY
ON THE BASIS OF THOSE FINDINGS.  YET THIS COURT HELD THAT THE PUBLIC
UTILITY, AS THE SUCCESSFUL PARTY, COULD NOT APPEAL THOSE FINDINGS. 
SURELY IN THIS CASE THE TRIAL JUDGE'S FINDING AS TO CONSPIRACY WAS NO
MORE "MATERIAL" THAN THE FINDINGS WHICH THIS COURT REFUSED TO REVIEW IN
LINDHEIMER AND MALTBIE. 
..END :





KERN-LIMERICK, INC. V. SCURLOCK 347 U.S. 110 


NO. 115.  ARGUED JANUARY 4, 1954 - DECIDED FEBRUARY 8, 1954 - 221 ARK.
439, 254 S.W.2D 454, REVERSED. 


THE ARKANSAS GROSS RECEIPTS TAX LAW OF 1941, WHICH LEVIES ON SELLERS
AN EXCISE TAX OF 2% ON THE GROSS RECEIPTS FROM ALL SALES IN THE STATE,
HELD UNCONSTITUTIONAL AS APPLIED TO THE TRANSACTIONS HERE INVOLVED,
WHEREBY PRIVATE CONTRACTORS PROCURED IN ARKANSAS TWO TRACTORS FOR USE
IN CONSTRUCTING A NAVAL AMMUNITION DEPOT FOR THE UNITED STATES UNDER A
COST-PLUS-FIXED-FEE CONTRACT ENTERED INTO WITH THE NAVY DEPARTMENT
UNDER SECS. 2(C)(10) AND 4(B) OF THE ARMED SERVICES PROCUREMENT ACT OF
1947 AND PROVIDING THAT, IN PROCURING ARTICLES REQUIRED FOR
ACCOMPLISHMENT OF THE WORK, THE CONTRACTOR SHOULD ACT AS PURCHASING
AGENT FOR THE GOVERNMENT, TITLE TO THE ARTICLES PURCHASES SHOULD PASS
DIRECTLY FROM THE VENDOR TO THE GOVERNMENT AND THE GOVERNMENT SHOULD BE
DIRECTLY LIABLE TO THE VENDOR FOR PAYMENT OF THE PURCHASE PRICE.  PP.
111-123. 

(A)  THE PROCUREMENT ACT AUTHORIZED THE PURCHASE OF THIS MACHINERY BY
THE NAVY FOR THE CONSTRUCTION OF AN AMMUNITION DEPOT.  P. 114. 

(B)  UNDER THE PROCUREMENT ACT, THE NAVY DEPARTMENT HAS POWER TO
NEGOTIATE CONTRACTS WHICH PROVIDE FOR PRIVATE PURCHASING AGENTS FOR
SUPPLIES AND MATERIALS.  PP. 114-116. 

(C)  THE RESTRICTIONS IN SEC. 7(B) ON DELEGATIONS OF AUTHORITY ARE
NOT APPLICABLE TO ACTIONS UNDER SEC. 2(C)(10).  PP. 115-116. 

(D)  UNDER THE CONTRACT HERE INVOLVED, THE UNITED STATES WAS THE REAL
PURCHASER; THE NAMING OF THE GOVERNMENT AS PURCHASER WAS NOT MERELY
COLORABLE AND DID NOT LEAVE THE CONTRACTOR THE REAL PURCHASER.  ALABAMA
V. KING & BOOZER, 314 U.S. 1, DISTINGUISHED.  PP. 116-122. 

(E)  THE DRAFTING OF THE CONTRACT BY THE NAVY DEPARTMENT TO CONSERVE
GOVERNMENT FUNDS, IF THAT WAS THE PURPOSE, DOES NOT CHANGE THE
CHARACTER OF THE TRANSACTION.  PP. 122-123. 

KERN-LIMERICK, INC. ET AL. V. SCURLOCK, COMMISSIONER OF REVENUES FOR
ARKANSAS. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

THE SUPREME COURT OF ARKANSAS HELD THE ARKANSAS GROSS RECEIPTS TAX
LAW OF 1941, ARK. STAT., 1947, SEC. 84-1901 ET SEQ., APPLICABLE TO THE
SALE OF CERTAIN MACHINERY IN ARKANSAS FOR USE IN THE CONSTRUCTION OF A
NAVAL AMMUNITION DEPOT FOR THE UNITED STATES.  221 ARK. 439, 254 S.W.2D
454.  ON APPEAL TO THIS COURT, REVERSED, P. 123. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL BRINGS HERE THE LEGALITY OF THE APPLICATION OF THE
ARKANSAS GROSS RECEIPTS TAX LAW OF 1941, ARK. STAT., 1947, SEC. 84-1901
ET SEQ., TO A TRANSACTION BY WHICH CERTAIN PRIVATE CONTRACTORS ENGAGED
IN A JOINT VENTURE, ABBREVIATED WHMS, PROCURED IN ARKANSAS TWO DIESEL
TRACTORS COSTING $17,146, FOR USE IN THE CONSTRUCTION THERE FOR THE
UNITED STATES OF A NAVAL AMMUNITION DEPOT ESTIMATED TO COST OVER THIRTY
MILLION DOLLARS.  THE TRACTORS WERE PROCURED FROM KERN-LIMERICK, INC.,
A LOCAL DEALER.  THE CIRCUMSTANCES OF THE TRANSACTION WOULD CONCEDEDLY
MAKE KERN-LIMERICK LIABLE FOR THE TAX IF THE REAL PURCHASER WERE NOT
THE UNITED STATES. 

THE APPLICABLE SECTIONS OF THE GROSS RECEIPTS TAX LAW LEVY AN "EXCISE
TAX OF TWO (2%) PER CENTUM UPON THE GROSS PROCEEDS OR GROSS RECEIPTS
DERIVED FROM ALL SALES TO ANY PERSON."  SEC.  84-1903.  THIS IS A SALES
TAX, NOT A USE TAX.  (FN1)  IT IS TO BE PAID TO THE TAX COMMISSIONER BY
THE SELLER, SEC. 84-1908.  HE IS THE TAXPAYER, SEC. 84-1902(E), AND
"SHALL COLLECT THE TAX LEVIED HEREBY FROM THE PURCHASER."  SEC. 84
1908.  GROSS RECEIPTS DERIVED FROM SALES TO THE UNITED STATES
GOVERNMENT ARE EXEMPT.  SEC. 84-1904. 

THE CONSTRUCTION CONTRACT HAD, SO FAR AS PERTINENT HERE, THE
PROVISIONS AS TO "MATERIALS - PURCHASES" WHICH ARE SET OUT IN THE
MARGIN.  (FN2)  IT WAS ENTERED INTO BY THE DEPARTMENT OF THE NAVY
"UNDER AUTHORITY OF SECTIONS 2(C)(10) AND 4(B)" OF THE ARMED SERVICES
PROCUREMENT ACT OF 1947.  62 STAT. 21, 41 U.S.C. (SUPP. V) SEC. 157 ET
SEQ. THESE SECTIONS AUTHORIZED THIS COST-PLUS-A-FIXED-FEE CONTRACT BY
NEGOTIATION WITHOUT ADVERTISING.  (FN3) 

KERN-LIMERICK, INC., THE SELLER, UPON DEMAND BY THE COMMISSIONER PAID
UNDER PROTEST THE AMOUNT OF THE SALES TAX AND BROUGHT THIS ACTION FOR A
REFUND IN ACCORDANCE WITH STATE LAW.  THE UNITED STATES INTERVENED, AS
UNDER THE CONTRACT ANY STATE TAXES THE CONTRACTOR WAS REQUIRED TO PAY
WERE REIMBURSABLE TO IT BY THE GOVERNMENT.  THE SUPREME COURT OF
ARKANSAS HELD WHMS WAS THE PURCHASER AND THE CLAIMED TAX PAYABLE BY
KERN-LIMERICK AS THE "SELLER."  IT DENIED THE CONTENTION OF THE UNITED
STATES THAT THE GOVERNMENT WAS THE PURCHASER.  IT HELD THAT THE ARMED
SERVICES PROCUREMENT ACT AUTHORIZED THE NAVY DEPARTMENT "TO PURCHASE
...  SUPPLIES OR SERVICES FOR ITS OWN USE," BUT DID NOT AUTHORIZE THE
DEPARTMENT "TO BUY NAILS, LUMBER, CEMENT, TRACTORS, ETC., WHICH WERE
NOT TO BE USED BY THE NAVY BUT BY WHMS (IN THIS INSTANCE) TO CONSTRUCT,
AS INDEPENDENT CONTRACTORS, THE AMMUNITION DUMP."  THE STATE COURT
FURTHER HELD THAT, EVEN IF THE DEPARTMENT HAD THE AUTHORITY TO BUY THE
TRACTORS, IT COULD NOT, UNDER THE PROCUREMENT ACT OF 1947, DELEGATE
THIS POWER TO WHMS.  221 ARK. 439, 254 S.W.2D 454. 

APPELLANTS SEEK REVERSAL OF THE DECISION ON THE GROUNDS THAT THE
PROCUREMENT ACT AUTHORIZES THIS CONTRACT AND THAT THE ARKANSAS TAX
CANNOT BY STATUTE OR CONSTITUTIONALLY BE APPLIED TO A PURCHASE BY THE
UNITED STATES. 

THE STATE COURT'S INTERPRETATION OF THE PROCUREMENT ACT TO DENY THE
NAVY AUTHORITY TO BUY SUPPLIES OR EQUIPMENT FOR THE CONSTRUCTION OF AN
AMMUNITION DUMP IS, WE THINK, TOO RESTRICTIVE.  THE ACT GIVES BROAD
POWERS TO THE ARMED SERVICES FOR OBTAINING AS CHEAPLY AND PROMPTLY AS
POSSIBLE "PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES  ...  FOR
THE USE OF ANY SUCH AGENCY OR OTHERWISE," SEC. 2(A), AND PROVIDES: 

SEC. 9.  "(B) THE TERM 'SUPPLIES' SHALL MEAN ALL PROPERTY EXCEPT
LAND, AND SHALL INCLUDE, BY WAY OF DESCRIPTION AND WITHOUT LIMITATION,
PUBLIC WORKS, BUILDINGS, FACILITIES, SHIPS, FLOATING EQUIPMENT, AND
VESSELS OF EVERY CHARACTER, TYPE AND DESCRIPTION, AIRCRAFT, PARTS,
ACCESSORIES, EQUIPMENT, MACHINE TOOLS AND ALTERATION OR INSTALLATION
THEREOF."  (FN4) 

WE HOLD THAT THE ACT ALLOWS THE PURCHASE OF THIS MACHINERY. 

IT SEEMS TO US, ALSO, THAT UNDER THE PROCUREMENT ACT THE ARMED
SERVICES MAY USE AGENTS, OTHER THAN ITS OWN OFFICIAL PERSONNEL, TO
HANDLE FOR IT THE DETAIL OF PURCHASE.  THE CONTENTION OF ARKANSAS WHICH
WAS ACCEPTED BY ITS SUPREME COURT IS, AS WE UNDERSTAND IT, THAT THE
PROCUREMENT ACT DOES NOT PERMIT A DELEGATION TO PRIVATE CONTRACTORS OF
ANY AUTHORITY TO PURCHASE FOR OR PLEDGE THE CREDIT OF THE UNITED STATES
EVEN THOUGH THESE CONTRACTORS HAVE CONTRACTS FOR CONSTRUCTION OR
SUPPLIES ON A COST-PLUS BASIS.  FURTHER, IT FOLLOWS FROM THE ARKANSAS
CONTENTION, THAT WITHOUT SUCH STATUTORY AUTHORITY THE PURCHASE BY THE
CONTRACTOR WAS NOT FOR THE UNITED STATES BUT FOR ITSELF.  THIS
CONTENTION IS BASED ON THE LANGUAGE OF THE PROCUREMENT ACT, SECS. 7(A)
AND (B).  (FN5)  PURSUANT TO SEC. 7(A), THE SECRETARY OF THE NAVY,
SOMEWHAT OBSCURELY, APPEARS TO HAVE DELEGATED HIS AUTHORITY TO
DETERMINE THE NECESSITY FOR A NEGOTIATED CONTRACT TO A NAVY CONTRACTING
OFFICER ASSERTED IN THE CONTRACT, WITHOUT EXCEPTION, TO BE THE CHIEF OF
THE BUREAU OF YARDS AND DOCKS.  SEE 32 CFR SECS. 400.201-5 AND 402
101.  THAT OFFICIAL NEGOTIATED THE CONTRACT, AS IT STATED AND AS IS
ADMITTED BY STIPULATION, UNDER THE AUTHORITY OF SEC. 2(C)(10) OF THE
PROCUREMENT ACT - "FOR SUPPLIES OR SERVICES FOR WHICH IT IS
IMPRACTICABLE TO SECURE COMPETITION." 

ARKANSAS CALLS ATTENTION TO THE RESTRICTIONS ON DELEGATION IN SEC.
7(B) UPON WHICH THE STATE COURT COMMENTED.  BUT THE PROVISIONS OF SEC.
7(B), AS THE WORDS SHOW, DO NOT COVER ACTIONS UNDER SEC. 2(C)(10), AND
THE SECTION'S PROHIBITION OF DELEGATION IN CERTAIN INSTANCES IS
INAPPLICABLE.  WE FIND NOTHING IN THE PROCUREMENT ACT THAT BARS A
CONTRACT FOR PURCHASE FOR THE UNITED STATES OF SUPPLIES OR SERVICES BY
PRIVATE PERSONS. 

THE GOVERNMENT ASSERTS THAT SECS. 4(A) AND (B) AUTHORIZE THIS
CONTRACT.  UNDER THEM, NEGOTIATED CONTRACTS SUCH AS THIS "MAY BE OF ANY
TYPE WHICH  ...  WILL PROMOTE THE BEST INTERESTS OF THE GOVERNMENT." 
UNDER SUCH A PROVISION, IT SEEMS THAT THE DETERMINATION TO USE
PURCHASING AGENTS IS PERMISSIBLE.  WHERE THERE IS NO PROHIBITION OF A
PARTICULAR TYPE OF CONTRACT AND NO DIRECTION TO USE A PARTICULAR TYPE,
THE CONTRACTING OFFICERS ARE FREE TO FOLLOW BUSINESS PRACTICES.  (FN6)
WE CONCLUDE THAT THE NAVY DEPARTMENT HAS POWER TO NEGOTIATE CONTRACTS
WHICH PROVIDE FOR PRIVATE PURCHASING AGENTS FOR SUPPLIES AND
MATERIALS. 

WITH THIS DETERMINATION THAT THE PROVISIONS OF THE CONTRACT ARE
WITHIN THE AUTHORITY OF THE PROCUREMENT ACT, WE TURN TO EXAMINE THE
VALIDITY OF THE ARGUMENT THAT THE NAMING OF THE GOVERNMENT AS PURCHASER
WAS ONLY COLORABLE AND LEFT THE CONTRACTOR THE REAL PURCHASER AND THE
TRANSACTION SUBJECT TO THE ARKANSAS TAX.  ALABAMA V. KING & BOOZER, 314
U.S. 1, IS RELIED UPON PRIMARILY.  WE CONSIDER THIS ARGUMENT UNDER THE
ASSUMPTION, MADE BY THE SUPREME COURT OF ARKANSAS, THAT THE CONTRACT
WAS DESIGNED TO AVOID THE NECESSITY IN THIS COST-PLUS CONTRACT OF THE
ULTIMATE PAYMENT OF A STATE TAX BY THE UNITED STATES. 

WE ARE MINDFUL, TOO, OF THE CAREFUL ATTENTION CONGRESS HAS GIVEN IN
RECENT YEARS TO A PROPER ADJUSTMENT OF TAX LIABILITIES BETWEEN THE
FEDERAL AND THE STATE SOVEREIGNTIES.  CONGRESS HAS BEEN SOLICITOUS TO
SEE THAT STATES AND THEIR SUBDIVISIONS ARE NOT UNDULY BURDENED BY
FEDERAL ACQUISITION OF PROPERTY TAXABLE BY THE STATES WHEN OTHERWISE
HELD.  IT UNDERSTANDS THE BURDENS ON LOCAL PUBLIC AGENCIES FROM THE NEW
FEDERAL INSTALLATIONS AND THEIR ACCOMPANYING PERSONNEL.  PROVISIONS
DEEMED SUITABLE HAVE BEEN MADE.  (FN7)  THESE INCLUDE RECENT
LEGISLATION DESIGNED TO MAKE INDEPENDENT CONTRACTORS CARRYING ON
ACTIVITIES OF THE ATOMIC ENERGY COMMISSION SUBJECT TO STATE SALES
TAXES.  (FN8)  BUT IN RECOMMENDING THE LEGISLATION THE JOINT COMMITTEE
ON ATOMIC ENERGY, WHILE PROVIDING FOR VOLUNTARY CONTRIBUTIONS, DID NOT
PROPOSE TO SUBJECT GOVERNMENT PROPERTY AND PURCHASES TO STATE TAXES. 
THE ENACTMENT LEFT THEM FREE.  (FN9)  THIS RECOGNITION OF THE
CONSTITUTIONAL IMMUNITY OF THE FEDERAL GOVERNMENT FROM STATE EXACTIONS
RESTS, OF COURSE, UPON UNQUESTIONED AUTHORITY.  FROM MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, THROUGH GILLESPIE V. OKLAHOMA, 257 U.S. 501,
AND NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S. 401, A HOST OF CASES
UPHELD FREEDOM FROM STATE TAXATION NOT ONLY FOR GOVERNMENT ACTIVITIES
BUT ALSO FOR THE AGENCIES AND SALARIES OF PERSONS THAT CARRIED ON THE
WORK.  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, REVIEWED THIS
JUDICIAL HISTORY, ADOPTED FOR FEDERAL CONTRACTORS AND STATE TAXATION
THE REASONING THAT SUBJECTED A STATE CONTRACTOR'S EARNINGS TO FEDERAL
INCOME TAX AND UPHELD THE STATE'S GROSS RECEIPTS TAX UPON A FEDERAL
CONTRACTOR'S EARNINGS ON THE GROUND THAT IT DID NOT INTERFERE "IN ANY
SUBSTANTIAL WAY WITH THE PERFORMANCE OF FEDERAL FUNCTIONS."   ID., AT
161.  THE QUESTION OF THE IMMUNITY OF GOVERNMENT IN RELATION TO ITS
PURCHASES OF COMMODITIES WAS LEFT OPEN.  ID., AT 153.  GRAVES V. NEW
YORK EX REL.  O'KEEFE, 306 U.S. 466, OVERRULED NEW YORK EX REL. ROGERS
V. GRAVES, SUPRA, AND GILLESPIE, SUPRA, FELL IN OKLAHOMA TAX COMM'N V.
TEXAS CO., 336 U.S. 342, 365. 

A PHASE OF THE QUESTION RESERVED IN THE DRAVO CASE CAME UP IN ALABAMA
V. KING & BOOZER, 314 U.S. 1.  WE DECLARED THAT FEDERAL SOVEREIGNTY
"DOES NOT SPELL IMMUNITY FROM PAYING THE ADDED COSTS, ATTRIBUTABLE TO
THE TAXATION OF THOSE WHO FURNISH SUPPLIES TO THE GOVERNMENT AND WHO
HAVE BEEN GRANTED NO TAX IMMUNITY."  ID., AT 9.  THAT CASE INVOLVED THE
USUAL TYPE SALES TAX ON THE SELLER, COLLECTIBLE BY HIM FROM THE BUYER. 
THERE WAS THERE, TOO, A COST-PLUS-A-FIXED-FEE CONTRACT WITH THE UNITED
STATES.  WE HELD THE STATE TAX COLLECTIBLE FROM THE SELLERS,
NOTWITHSTANDING THE GOVERNMENT BORE THE ECONOMIC BURDEN.  A FEW
EXCERPTS WILL MAKE CLEAR THE PURPORT OF THE RULING: 

"AS THE SALE OF THE LUMBER BY KING AND BOOZER WAS NOT FOR CASH, THE
PRECISE QUESTION IS WHETHER THE GOVERNMENT BECAME OBLIGATED TO PAY FOR
THE LUMBER AND SO WAS THE PURCHASER WHOM THE STATUTE TAXES, BUT FOR THE
CLAIMED IMMUNITY  ...  .  THE CONTRACT PROVIDED THAT THE TITLE TO ALL
MATERIALS AND SUPPLIES FOR WHICH THE CONTRACTORS WERE 'ENTITLED TO BE
REIMBURSED' SHOULD VEST IN THE GOVERNMENT 'UPON DELIVERY AT THE SITE OF
THE WORK OR AT AN APPROVED STORAGE SITE AND UPON INSPECTION AND
ACCEPTANCE IN WRITING BY THE CONTRACTING OFFICER.'"  ID., AT 10. 

"  ...  WE THINK ALL THE PROVISIONS WHICH WE HAVE MENTIONED, READ
TOGETHER, PLAINLY CONTEMPLATE THAT THE CONTRACTORS WERE TO PURCHASE IN
THEIR OWN NAMES AND ON THEIR OWN CREDIT ALL THE MATERIALS REQUIRED,
UNLESS THE GOVERNMENT SHOULD ELECT TO FURNISH THEM; THAT THE GOVERNMENT
WAS NOT TO BE BOUND BY THEIR PURCHASE CONTRACTS, BUT WAS OBLIGATED ONLY
TO REIMBURSE THE CONTRACTORS WHEN THE MATERIALS PURCHASED SHOULD BE
DELIVERED, INSPECTED AND ACCEPTED AT THE SITE."  ID., AT 11. 

"BUT HOWEVER EXTENSIVELY THE GOVERNMENT MAY HAVE RESERVED THE RIGHT
TO RESTRICT OR CONTROL THE ACTION OF THE CONTRACTORS IN OTHER RESPECTS,
NEITHER THE RESERVATION NOR THE EXERCISE OF THAT POWER GAVE TO THE
CONTRACTORS THE STATUS OF AGENTS OF THE GOVERNMENT TO ENTER INTO
CONTRACTS OR TO PLEDGE ITS CREDIT."  ID., AT 13. 

THE CONTRACT HERE IN ISSUE DIFFERS IN FORM BUT NOT IN ECONOMIC EFFECT
ON THE UNITED STATES.  THE NATION BEARS THE BURDEN OF THE ARKANSAS TAX
AS IT DID THAT OF ALABAMA.  THE SIGNIFICANT DIFFERENCE LIES IN THIS. 
BOTH THE REQUEST FOR BIDS AND THE PURCHASE ORDER, IN ACCORDANCE WITH
THE CONTRACT ARRANGEMENTS MAKING THE CONTRACTORS PURCHASING AGENTS FOR
THE GOVERNMENT, NOTE 2, SUPRA, CONTAIN THIS IDENTICAL, SPECIFIC
PROVISION: 

"3.  THIS PURCHASE IS MADE BY THE GOVERNMENT.  THE GOVERNMENT SHALL
BE OBLIGATED TO THE VENDOR FOR THE PURCHASE PRICE, BUT THE CONTRACTOR
SHALL HANDLE ALL PAYMENTS HEREUNDER ON BEHALF OF THE GOVERNMENT.  THE
VENDOR AGREES TO MAKE DEMAND OR CLAIM FOR PAYMENT OF THE PURCHASE PRICE
FROM THE GOVERNMENT BY SUBMITTING AN INVOICE TO THE CONTRACTOR.  TITLE
TO ALL MATERIALS AND SUPPLIES PURCHASED HEREUNDER SHALL VEST IN THE
GOVERNMENT DIRECTLY FROM THE VENDOR.  THE CONTRACTOR SHALL NOT ACQUIRE
TITLE TO ANY THEREOF." 

THE PURCHASE ORDER IS HEADED NAVY DEPARTMENT BUREAU OF YARDS AND
DOCKS, IS SIGNED BY THE CONTRACTOR AS PURCHASING AGENT, AND REQUIRES
THE SELLER TO MAKE THIS CERTIFICATION ON THE CLAIM FOR PAYMENT: 

"'I CERTIFY THAT THE ABOVE BILL IS CORRECT AND JUST; THAT PAYMENT
THEREFOR HAS NOT BEEN RECEIVED; THAT ALL STATUTORY REQUIREMENTS AS TO
AMERICAN PRODUCTION AND LABOR STANDARDS, AND ALL CONDITIONS OF PURCHASE
APPLICABLE TO THE TRANSACTIONS HAVE BEEN COMPLIED WITH; AND THAT THE
STATE OR LOCAL SALES TAXES ARE NOT INCLUDED IN THE AMOUNTS BILLED.' 

     *         *         *         *         * 

"IN THE EVENT THE CONTRACTOR IS REQUIRED TO PAY AND DOES PAY STATE OR
LOCAL SALES TAXES, THE WORDS 'AND THAT STATE OR LOCAL SALES TAXES ARE
NOT INCLUDED IN THE AMOUNTS BILLED' SHOULD BE STRUCK FROM THE
CERTIFICATION AND THE FOLLOWING ADDITIONAL CERTIFICATION ADDED: 
"'THE AMOUNT OF STATE OR LOCAL SALES, USE, OCCUPATIONAL, GROSS
RECEIPTS, OR OTHER SIMILAR TAXES OR LICENSE FEES IMPOSED ON THE VENDOR
OR VENDEE BY REASON OF THIS TRANSACTION IS $ - .  THE VENDOR, OR
VENDEE, AS THE CASE MAY BE, AGREES UPON DIRECTION OF THE UNITED STATES
TO MAKE APPROPRIATE CLAIM FOR REFUND AND IN THE EVENT OF ANY REFUND, TO
PAY THE AMOUNT THEREOF TO THE UNITED STATES.'" 

THE STIPULATION OF FACTS SHOWS IN DETAIL THE COURSE OF BUSINESS UNDER
THIS CONTRACT IN THE PURCHASE OF SUPPLIES AND THE FORM OF THIS
PURCHASE.  BOTH CONFORM TO THE LANGUAGE OF THE CONTRACT IN REQUIRING
SPECIFIC GOVERNMENT APPROVAL TO THE PURCHASING AGENT FOR EACH REQUEST
FOR BID AND EACH PURCHASE.  UNDER THESE CIRCUMSTANCES, IT IS CLEAR THAT
THE GOVERNMENT IS THE DISCLOSED PURCHASER AND THAT NO LIABILITY OF THE
PURCHASING AGENT TO THE SELLER ARISES FROM THE TRANSACTION.  (FN10) 

A COMMENT SHOULD BE MADE ABOUT ANOTHER EXCERPT FROM KING & BOOZER.  IT
WAS REFERRED TO IN THE ARKANSAS OPINION AS THOUGH IT WERE EFFECTIVE FOR
THE DETERMINATION OF THIS CASE.  THE QUOTATION IS THIS: 

"THE SOUNDNESS OF THIS CONCLUSION TURNS ON THE TERMS OF THE CONTRACT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER IT.  THE TAXING
STATUTE, AS THE ALABAMA COURTS HAVE HELD, MAKES THE 'PURCHASER' LIABLE
FOR THE TAX TO THE SELLER, WHO IS REQUIRED 'TO ADD TO THE SALES PRICE'
THE AMOUNT OF THE TAX AND COLLECT IT WHEN THE SALES PRICE IS COLLECTED,
WHETHER THE SALE IS FOR CASH OR ON CREDIT.  WHO, IN ANY PARTICULAR
TRANSACTION LIKE THE PRESENT, IS A 'PURCHASER' WITHIN THE MEANING OF
THE STATUTE, IS A QUESTION OF STATE LAW ON WHICH ONLY THE SUPREME COURT
OF ALABAMA CAN SPEAK WITH FINAL AUTHORITY."  ID., AT 9-10. 

READ LITERALLY, ONE MIGHT CONCLUDE THIS COURT WAS SAYING THAT A STATE
COURT MIGHT INTERPRET ITS TAX STATUTE SO AS TO THROW TAX LIABILITY
WHERE IT CHOSE, EVEN THOUGH IT ARBITRARILY ELIMINATED AN EXEMPT
SOVEREIGN.  SUCH A CONCLUSION AS TO THE MEANING OF THE QUOTED WORDS
WOULD DENY THE LONG COURSE OF JUDICIAL CONSTRUCTION WHICH ESTABLISHES
AS A PRINCIPLE THAT THE DUTY RESTS ON THIS COURT TO DECIDE FOR ITSELF
FACTS OR CONSTRUCTIONS UPON WHICH FEDERAL CONSTITUTIONAL ISSUES REST. 
(FN11) THE QUOTATION REFERS, WE THINK, ONLY TO THE POWER OF THE STATE
COURT TO DETERMINE WHO IS RESPONSIBLE UNDER ITS LAW FOR PAYMENT TO THE
STATE OF THE EXACTION.  THE FORMULATION OF THE "PRECISE QUESTION" AT
THE FIRST OF THE QUOTATION FROM KING & BOOZER, P. 118, SUPRA, INDICATES
THIS. 

WE FIND THAT THE PURCHASER UNDER THIS CONTRACT WAS THE UNITED
STATES.  THUS, KING & BOOZER IS NOT CONTROLLING FOR, THOUGH THE
GOVERNMENT ALSO BORE THE ECONOMIC BURDEN OF THE STATE TAX IN THAT CASE,
THE LEGAL INCIDENCE OF THAT TAX WAS HELD TO FALL ON THE INDEPENDENT
CONTRACTOR AND NOT UPON THE UNITED STATES.  (FN12)  THE DOCTRINE OF
SOVEREIGN IMMUNITY IS SO EMBEDDED IN CONSTITUTIONAL HISTORY AND
PRACTICE THAT THIS COURT CANNOT SUBJECT THE GOVERNMENT OR ITS OFFICIAL
AGENCIES TO STATE TAXATION WITHOUT A CLEAR CONGRESSIONAL MANDATE.  NO
INSTANCE OF SUCH SUBMISSION IS SHOWN. 

NOR DO WE THINK THAT THE DRAFTING OF THE CONTRACT BY THE NAVY
DEPARTMENT TO CONSERVE GOVERNMENT FUNDS, IF THAT WAS THE PURPOSE,
CHANGES THE CHARACTER OF THE TRANSACTION.  AS WE HAVE INDICATED, THE
INTERGOVERNMENTAL SUBMISSION TO TAXATION IS PRIMARILY A PROBLEM OF
FINANCE AND LEGISLATION.  BUT SINCE PURCHASES BY INDEPENDENT
CONTRACTORS OF SUPPLIES FOR GOVERNMENT CONSTRUCTION OR OTHER ACTIVITIES
DO NOT HAVE FEDERAL IMMUNITY FROM TAXATION, THE FORMS OF CONTRACTS,
WHEN GOVERNMENTAL IMMUNITY IS NOT WAIVED BY CONGRESS, MAY DETERMINE THE
EFFECT OF STATE TAXATION ON FEDERAL AGENCIES, (FN13) FOR DECISIONS
CONSISTENTLY PROHIBIT TAXES LEVIED ON THE PROPERTY OR PURCHASES OF THE
GOVERNMENT ITSELF.  (FN14)  REVERSED. 

FN1  COOK V. SOUTHEAST ARKANSAS TRANSPORTATION CO., 211 ARK. 831, 202
S.W.2D 772. 

FN2  MATERIALS - PURCHASES.  ARTICLE 8 - (A) "EXCEPT WHERE PROVISION
IS OTHERWISE MADE BY THE OFFICER-IN-CHARGE, ALL MATERIALS, ARTICLES,
SUPPLIES, AND EQUIPMENT REQUIRED FOR THE ACCOMPLISHMENT OF THE WORK
UNDER THIS CONTRACT SHALL BE FURNISHED BY THE CONTRACTOR.  THE
CONTRACTOR SHALL ACT AS THE PURCHASING AGENT OF THE GOVERNMENT IN
EFFECTING SUCH PROCUREMENT AND THE GOVERNMENT SHALL BE DIRECTLY LIABLE
TO THE VENDORS FOR THE PURCHASE PRICE.  THE EXERCISE OF THIS AGENCY IS
SUBJECT TO THE OBTAINING OF APPROVAL IN THE INSTANCES AND IN THE MANNER
REQUIRED BY SUBPARAGRAPH (C) OF THIS ARTICLE.  THE CONTRACTOR SHALL
NEGOTIATE AND ADMINISTER ALL SUCH PURCHASES AND SHALL ADVANCE ALL
PAYMENTS THEREFOR UNLESS THE OFFICER-IN-CHARGE SHALL OTHERWISE DIRECT. 

"(B)  TITLE TO ALL SUCH MATERIALS, ARTICLES, SUPPLIES AND EQUIPMENT,
THE COST OF WHICH IS REIMBURSABLE TO THE CONTRACTOR HEREUNDER, SHALL
PASS DIRECTLY FROM THE VENDOR TO THE GOVERNMENT WITHOUT VESTING IN THE
CONTRACTOR, AND SUCH TITLE (EXCEPT AS TO PROPERTY TO WHICH THE
GOVERNMENT HAS OBTAINED TITLE AT AN EARLIER DATE) SHALL VEST IN THE
GOVERNMENT AT THE TIME PAYMENT IS MADE THEREFOR BY THE GOVERNMENT OR BY
THE CONTRACTOR OR UPON DELIVERY THEREOF TO THE GOVERNMENT OR THE
CONTRACTOR, WHICHEVER OF SAID EVENTS SHALL FIRST OCCUR.  THIS PROVISION
FOR PASSAGE OF TITLE SHALL NOT RELIEVE THE CONTRACTOR OF ANY OF ITS
DUTIES OR OBLIGATIONS UNDER THIS CONTRACT OR CONSTITUTE ANY WAIVER OF
THE GOVERNMENT'S RIGHT TO ABSOLUTE FULFILLMENT OF ALL OF THE TERMS
HEREOF. 

"(C)  NO PURCHASE IN EXCESS OF $500 SHALL BE MADE HEREUNDER WITHOUT
THE PRIOR WRITTEN APPROVAL OF THE OFFICER-IN-CHARGE, EXCEPT THAT THE
OFFICER-IN-CHARGE MAY, IN HIS DISCRETION, EITHER REDUCE THE LIMITATION
ON THE AMOUNT OF ANY PURCHASE WHICH MAY BE MADE WITHOUT SUCH PRIOR
APPROVAL OR AUTHORIZE THE CONTRACTOR TO MAKE PURCHASES IN AMOUNTS NOT
IN EXCESS OF $2500 FOR ANY ONE PURCHASE WITHOUT OBTAINING SUCH PRIOR
APPROVAL." 

THESE PROVISIONS WERE ALSO APPLICABLE TO SUBCONTRACTORS. 

FN3  SECTION 2(C) PROVIDES: 

"ALL PURCHASES AND CONTRACTS FOR SUPPLIES AND SERVICES SHALL BE MADE
BY ADVERTISING, AS PROVIDED IN SECTION 3, EXCEPT THAT SUCH PURCHASES
AND CONTRACTS MAY BE NEGOTIATED BY THE AGENCY HEAD WITHOUT ADVERTISING
IF: 

     *         *         *         *         * 

"(10) FOR SUPPLIES OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO
SECURE COMPETITION; ...  ." 

CONTRACTS AND PRESCRIBES OTHER OPERATIVE LIMITATIONS NOT PERTINENT
HERE.  ALL PROVISIONS REQUIRED BY THOSE SECTIONS WERE INCLUDED IN THE
CONTRACT. 

FN4  S. REP. NO. 571, 80TH CONG., 1ST SESS., P. 21, HAD THIS TO SAY
OF THIS LANGUAGE: 

"TO MAKE IT CLEAR THAT THE BILL RELATES TO ALL PROCUREMENT BY THE
SERVICES, EXCEPT PURCHASES WITH NONAPPROPRIATED FUNDS, SUBSECTION (B)
OF THIS SECTION DEFINES 'SUPPLIES' TO INCLUDE ALL PROPERTY EXCEPT LAND,
AND SHALL INCLUDE, BUT WITHOUT LIMITATION, PUBLIC WORKS, BUILDINGS,
FACILITIES, SHIPS, FLOATING EQUIPMENT, AND VESSELS OF EVERY CHARACTER,
TYPE AND DESCRIPTION, AIRCRAFT, PARTS, ACCESSORIES, EQUIPMENT, MACHINE
TOOLS, AND ALTERATION OR INSTALLATION THEREOF.  THESE ARE REALLY
EXAMPLES AND THIS SECTION IS TO BE CONSTRUED IN THE BROADEST MANNER
POSSIBLE." 

THE CORRESPONDING HOUSE REPORT, NO. 109, P. 23.  OMITTED ONLY THE
LAST SENTENCE. 

FN5  "SEC.  7.  (A)  ...  EXCEPT AS PROVIDED IN SUBSECTION (B) OF
THIS SECTION, THE AGENCY HEAD IS AUTHORIZED TO DELEGATE HIS POWERS
PROVIDED BY THIS ACT, INCLUDING THE MAKING OF SUCH DETERMINATIONS AND
DECISIONS, IN HIS DISCRETION AND SUBJECT TO HIS DIRECTION, TO ANY OTHER
OFFICER OR OFFICERS OR OFFICIALS OF THE AGENCY. 

"(B)  THE POWER OF THE AGENCY HEAD TO MAKE THE DETERMINATIONS OR
DECISIONS SPECIFIED IN PARAGRAPHS (12), (13), (14), (15), AND (16) OF
TO MAKE THE DETERMINATIONS OR DECISIONS SPECIFIED IN PARAGRAPH (11) OF
PROCUREMENT AND ONLY WITH RESPECT TO CONTRACTS WHICH WILL NOT REQUIRE
THE EXPENDITURE OF MORE THAN $25,000." 

APPELLEE ALSO REFERS TO SEC. 10.  AS THAT PROVIDES ONLY FOR
INTERSERVICE PROCUREMENT, WE DO NOT THINK IT PERTINENT. 

FN6  UNITED STATES V. LINN, 15 PET. 290, 316; MUSCHANY V. UNITED
STATES, 324 U.S. 49, 63. 

FN7  E.G., T.V.A., 16 U.S.C. SEC. 831L; R.F.C., 15 U.S.C. SEC. 607. 
CF. DAMERON V. BRODHEAD, 345 U.S. 322. 

FN8  67 STAT. 575.  SEE S. REP. NO. 694, 83D CONG., 1ST SESS. 

FN9  SECTION 9 OF THE ATOMIC ENERGY ACT OF 1946, 60 STAT. 765, 42
U.S.C. SEC. 1809(B), AS AMENDED, PROVIDES:  "IN ORDER TO RENDER
FINANCIAL ASSISTANCE TO THOSE STATES AND LOCALITIES IN WHICH THE
ACTIVITIES OF THE COMMISSION ARE CARRIED ON AND IN WHICH THE COMMISSION
HAS ACQUIRED PROPERTY PREVIOUSLY SUBJECT TO STATE AND LOCAL TAXATION,
THE COMMISSION IS AUTHORIZED TO MAKE PAYMENTS TO STATE AND LOCAL
GOVERNMENTS IN LIEU OF PROPERTY TAXES.  SUCH PAYMENTS MAY BE IN THE
AMOUNTS, AT THE TIMES, AND UPON THE TERMS THE COMMISSION DEEMS
APPROPRIATE, BUT THE COMMISSION SHALL BE GUIDED BY THE POLICY OF NOT
MAKING PAYMENTS IN EXCESS OF THE TAXES WHICH WOULD HAVE BEEN PAYABLE
FOR SUCH PROPERTY IN THE CONDITION IN WHICH IT WAS ACQUIRED, EXCEPT IN
CASES WHERE SPECIAL BURDENS HAVE BEEN CASE UPON THE STATE OR LOCAL
GOVERNMENT BY ACTIVITIES OF THE COMMISSION, THE MANHATTAN ENGINEER
DISTRICT OR THEIR AGENTS.  IN ANY SUCH CASE, ANY BENEFIT ACCRUING TO
THE STATE OR LOCAL GOVERNMENT BY REASON OF SUCH ACTIVITIES SHALL BE
CONSIDERED IN DETERMINING THE AMOUNT OF THE PAYMENT." 

FN10  SEE HODGSON V. DEXTER, 1 CRANCH 345, 362; LARSON V. DOMESTIC &
FOREIGN CORP., 337 U.S. 682, 703; RESTATEMENT, AGENCY, SEC. 320;
WILLISTON, CONTRACTS, SEC. 281.  CF.  MERCHANT FLEET CORP. V. HARWOOD,
281 U.S. 519, 525. 

FN11  NEW JERSEY INS. CO. V. DIVISION OF TAX APPEALS, 338 U.S. 665,
674; RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69, 83; UNITED STATES
V. ALLEGHENY COUNTY, 322 U.S. 174, 182; UNION PACIFIC R. CO. V. PUBLIC
SERVICE COMM'N, 248 U.S. 67, 69.  CF. DYER V. SIMS, 341 U.S. 22, 29. 

THIS PRINCIPLE COVERS THE QUESTION OF WHO IS THE "PURCHASER." 
S.R.A., INC. V. MINNESOTA, 327 U.S. 558, 564; METROPOLITAN BANK V.
UNITED STATES, 323 U.S. 454, 456; STANDARD OIL CO. V. JOHNSON, 316 U.S.
481, 483. 

FN12  SEE OKLAHOMA TAX COMM'N V. TEXAS CO., 336 U.S. 342, 365:  "TRUE
INTERGOVERNMENTAL IMMUNITY REMAINS FOR THE MOST PART.  BUT, SO FAR AS
CONCERNS PRIVATE PERSONS CLAIMING IMMUNITY FOR THEIR ORDINARY BUSINESS
OPERATIONS (EVEN THOUGH IN CONNECTION WITH GOVERNMENTAL ACTIVITIES), NO
IMPLIED CONSTITUTIONAL IMMUNITY CAN REST ON THE MERELY HYPOTHETICAL
INTERFERENCES WITH GOVERNMENTAL FUNCTIONS HERE ASSERTED TO SUSTAIN
EXEMPTION." 

FN13  ALABAMA V. KING & BOOZER, 314 U.S. 1; CARSON V. ROANE-ANDERSON
CO., 342 U.S. 232; ESSO STANDARD OIL CO. V. EVANS, 345 U.S. 495. 

FN14  UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174; MAYO V. UNITED
STATES, 319 U.S. 441; PITTMAN V. HOME OWNERS' CORP., 308 U.S. 21, 31. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

THE COURT HOLDS THAT GOVERNMENT PURCHASING AGENTS CAN DELEGATE TO
THEIR SUBORDINATES AUTHORITY TO DELEGATE TO PRIVATE PERSONS POWER TO
BUY GOODS FOR THE GOVERNMENT AND PLEDGE ITS CREDIT TO PAY FOR THEM. 
ALABAMA V. KING & BOOZER, 314 U.S. 1, 13, REJECTED A SIMILAR
CONTENTION.  THE COURT POINTS TO NO STATUTE WHICH EITHER EXPRESSLY OR
BY FAIR IMPLICATION GRANTS ANY SUCH BROAD DELEGATION AUTHORITY TO
GOVERNMENT AGENTS. 

EXPERIENCES THROUGH THE YEARS HAVE CAUSED CONGRESS TO HEDGE IN
GOVERNMENT PURCHASES BY MANY DETAILED SAFEGUARDS SUCH AS COMPETITIVE
BIDDING AFTER PUBLIC ADVERTISING.*  DUE TO A SUPPOSED NECESSITY FOR
HASTE, CHOSEN GOVERNMENT OFFICIALS HAVE SOMETIMES BEEN GRANTED
TEMPORARY POWERS TO BUY SUPPLIES AT THEIR DISCRETION.  BUT THESE
OCCASIONS, PERHAPS FORTUNATELY, HAVE BEEN RARE, AND HAVE USUALLY BEEN
LIMITED TO ITEMS COSTING LITTLE.  THE COURT HERE, HOWEVER, WITHOUT ANY
CLEAR STATUTORY AUTHORITY, MAKES A TREMENDOUS BREAK WITH LONG
ESTABLISHED BUYING PRACTICES WHICH EMBODIED SAFEGUARDS WISELY ADOPTED
TO PREVENT NEEDLESS WASTE OF GOVERNMENT MONEY.  MAYBE CONGRESS HAS
POWER, THOUGH I AM NOT SURE IT HAS, TO DELEGATE GOVERNMENT SPENDING TO
PRIVATE CONTRACTORS.  EVEN SO, A PURPOSE TO HAVE GOVERNMENT BUSINESS
HANDLED IN SUCH A LOOSE MANNER SHOULD NOT BE ATTRIBUTED TO CONGRESS IN
THE ABSENCE OF MUCH MORE EXPLICIT STATUTORY LANGUAGE THAN THE COURT IS
ABLE TO CITE HERE. 

*FOR ILLUSTRATIONS OF EXPERIENCE WITH ABUSE OF WARTIME GOVERNMENT
CONTRACTING AND PURCHASING, SEE HEARINGS BEFORE HOUSE COMMITTEE ON
MILITARY AFFAIRS, 74TH CONG., 1ST SESS., ON H.R. 3 AND H.R. 5293, PP.
590-616, DISCUSSING PROFITEERING DURING THE REVOLUTION, THE CIVIL WAR,
THE WAR WITH SPAIN, AND WORLD WAR I. THE HEARINGS WERE HELD ON A BILL
TO END PROFITEERING IN WARTIME. 

I THINK THE SUPREME COURT OF ARKANSAS WAS RIGHT IN SUSTAINING THE
STATE'S TAX ON AUTHORITY OF ALABAMA V. KING & BOOZER, SUPRA.  THE COURT
IN EFFECT OVERRULES THAT CASE.  IN DOING SO IT MOVES BACK IN THE
DIRECTION OF DISCREDITED TAX IMMUNITIES LIKE THAT SUSTAINED IN THE CASE
OF GILLESPIE V. OKLAHOMA, 257 U.S. 501, LATER DISAPPROVED.  I WOULD NOT
DO THAT, BUT WOULD SUSTAIN APPLICATION OF THIS ARKANSAS TAX TO
PURCHASES OF THE COST-PLUS-A-FIXED-FEE CONTRACTOR AND AFFIRM THE STATE
SUPREME COURT'S JUDGMENT. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK JOIN, DISSENTING. 

THE ARKANSAS GROSS RECEIPTS TAX IS LAID, AS THE MAJORITY OPINION
POINTS OUT, ON THE GROSS RECEIPTS FROM ALL SALES TO ANY PERSON.  ARK.
STAT., 1947, SEC. 84-1903.  THE ACT, HOWEVER, SPELLS OUT THE INCIDENCE
OF THE TAX IN DETAIL.  "SALES OF SERVICE AND TANGIBLE PERSONAL PROPERTY
INCLUDING MATERIALS, SUPPLIES AND EQUIPMENT MADE TO CONTRACTORS WHO USE
SAME IN THE PERFORMANCE OF ANY CONTRACT ARE HEREBY DECLARED TO BE SALES
TO CONSUMERS OR USERS AND NOT SALES FOR RESALE."  SEC. 84-1903(E). 
"THE TERM 'CONSUMER' OR 'USER' MEANS THE PERSON TO WHOM THE TAXABLE
SALE IS MADE  ... .  ALL CONTRACTORS ARE DEEMED TO BE CONSUMERS OR
USERS OF ALL TANGIBLE PERSONAL PROPERTY INCLUDING MATERIALS, SUPPLIES
AND EQUIPMENT USED OR CONSUMED BY THEM IN PERFORMING ANY CONTRACT AND
THE SALES OF ALL SUCH PROPERTY TO CONTRACTORS ARE TAXABLE SALES WITHIN
THE MEANING OF THIS ACT."  SEC.  84-1902(I).    ON THE BASIS OF THIS
STATUTORY LANGUAGE THE SUPREME COURT OF ARKANSAS HELD THAT THE
CONTRACTOR WAS THE "PURCHASER" OF THE TRACTORS AND THAT THE SALE
INVOLVED WAS TAXABLE.  IT SEEMS CLEAR THAT, AS A MATTER OF STATE LAW,
THE CONTRACTOR WAS THE "CONSUMER" AND "USER" OF THESE TRACTORS, WHETHER
OR NOT THE CONTRACTOR WOULD HAVE BEEN A PURCHASER IN THE COMMON-LAW
VIEW.  OF COURSE ARKANSAS COULD NOT IMPOSE ITS TAX ON THE CONTRACTOR IN
SUCH A WAY AS TO DISCRIMINATE AGAINST THE UNITED STATES.  BUT THAT HAS
NOT BEEN ATTEMPTED HERE. 

WHAT ARKANSAS HAS DONE IS TO DEFINE AN INDEPENDENT CONTRACTOR AS THE
"CONSUMER" OR "PURCHASER" OF TRACTORS WHICH THE CONTRACTOR USES. 
OBVIOUSLY THE CONTRACTOR COULD BE MADE LIABLE FOR THE TAX, IF ITS
CONTRACT WERE WITH A PRIVATE CORPORATION RATHER THAN WITH THE FEDERAL
GOVERNMENT.  ARKANSAS HAS NOT TRIED TO COLLECT THE TAX FROM THE UNITED
STATES, AND IT CLEARLY COULD NOT DO SO.  SEE MAYO V. UNITED STATES, 319
U.S. 441.  ARKANSAS HAS COLLECTED THE TAX FROM THE "PURCHASER" AS THAT
WORD IS DEFINED BY THE TAXING STATUTE.  THAT IS WHERE THE LEGAL
INCIDENCE OF THE TAX FALLS.  IF THE ECONOMIC BURDEN OF THE TAX FALLS ON
THE FEDERAL GOVERNMENT, IT FALLS THERE BECAUSE THE GOVERNMENT ASSUMED
IT BY CONTRACT, NOT BECAUSE ARKANSAS PLACED IT THERE.  SEE CURRY V.
UNITED STATES, 314 U.S. 14, 18. 

THE CONSTITUTIONAL PROBLEM, OF COURSE, IS TO DETERMINE WHETHER THE
LEGAL INCIDENCE OF A TAX WILL BE DISREGARDED BECAUSE THE ECONOMIC
BURDEN OF THE TAX IS ON THE UNITED STATES.  WHEN CONGRESS HAS NOT
SPOKEN, THAT DETERMINATION MUST BE MADE BY THE COURT. 

IN ALABAMA V. KING & BOOZER, 314 U.S. 1, WE ALLOWED A SALES TAX TO BE
EXACTED FROM AN INDEPENDENT CONTRACTOR ACTING FOR THE GOVERNMENT ON A
COST-PLUS-A-FIXED-FEE BASIS.  THAT TAX WAS MEASURED BY THE VALUE OF
LUMBER USED BY THE CONTRACTOR IN PERFORMING ITS CONTRACT.  THE
GOVERNMENT EXERCISED MUCH THE SAME SORT OF DETAILED CONTROL OVER THAT
TRANSACTION AS IT DID OVER THE PRESENT ONE.  THE COURT WAS CAREFUL TO
POINT OUT, IN REJECTING THE CLAIM OF IMMUNITY, THAT "WHO, IN ANY
PARTICULAR TRANSACTION LIKE THE PRESENT, IS A 'PURCHASER' WITHIN THE
MEANING OF THE STATUTE, IS A QUESTION OF STATE LAW ON WHICH ONLY THE
SUPREME COURT OF (THE STATE) CAN SPEAK WITH FINAL AUTHORITY."  314
U.S., AT 9-10. 

IN THAT CASE, HOWEVER, THE SUPREME COURT OF ALABAMA HAD HELD THE
TRANSACTION IMMUNE FROM THE TAX.  THERE WAS NO AUTHORITATIVE STATE
DETERMINATION OF THE LEGAL INCIDENCE OF THE TAX.  THE COURT THEREFORE
ASSUMED, 314 U.S., AT 10, THAT THE TAX FELL ON THE "PURCHASER" OF THE
LUMBER IN THE COMMON-LAW SENSE.  THE COURT THEN WENT ON TO SHOW, IN
ANSWER TO THE SAME ARGUMENTS WHICH THE GOVERNMENT HAS MADE IN THIS
CASE, THAT THE UNITED STATES WAS NOT A PURCHASER OF THE LUMBER EVEN
UNDER COMMON-LAW RULES.  IT IS THIS SEGMENT OF THE OPINION WHICH THE
COURT NOW USES PRACTICALLY TO OVERRULE THE DECISION ITSELF.  NO DOUBT
THE UNITED STATES WAS, UNDER SOME OF THE LANGUAGE USED IN KING &
BOOZER, THE "PURCHASER" OF THESE TWO TRACTORS.  BUT THE UNITED STATES
IS NOT THE "PURCHASER" UNDER THE LANGUAGE USED IN THE ARKANSAS STATUTE,
AND IT IS THE ARKANSAS STATUTE THAT CONTROLS THIS CASE.  WHAT WAS
IMPORTANT IN KING & BOOZER WAS THE SUBSTANCE OF THE TRANSACTION AND THE
NATURE OF THE ECONOMIC BURDEN ON THE UNITED STATES.  ON THESE TWO
PARAMOUNT ISSUES IT IS IMPOSSIBLE TO DISTINGUISH THE PRESENT CASE. 

THE CONCEPTS "TITLE," "AGENCY," AND "OBLIGATION TO PAY" ARE NO BASIS
FOR THIS CONSTITUTIONAL ADJUDICATION.  TODAY THEY ARE USED TO PERMIT
ANY GOVERNMENT FUNCTIONARY TO DRAW THE CONSTITUTIONAL LINE BY CHANGING
A FEW WORDS IN A CONTRACT.  WHEN THE CONGRESS DELIBERATES OVER THIS
PROBLEM, AS IT OFTEN HAS, (FN1) IT DOES NOT WORRY ABOUT THE PASSING OF
TITLE OR OTHER LEGAL TECHNICALITIES.  THE CONGRESS DEBATES WHETHER AS A
MATTER OF POLICY, INCLUDING THE NEED OF THE STATES FOR REVENUE, THE
HOLDER OF A COST-PLUS GOVERNMENT CONTRACT SHOULD BE IMMUNE FROM STATE
TAXATION. 

ALABAMA V. KING & BOOZER AND THE CASES IT FOLLOWED (FN2) WERE A LONG
STEP FORWARD FROM THE TIME WHEN A STATE'S POWER TO TAX WAS NULLIFIED
WHENEVER THE FEDERAL TREASURY WAS EVEN REMOTELY AFFECTED.  WE SHOULD
NOT TAKE THIS EQUALLY LONG STEP BACKWARDS.  WE SHOULD HOLD THAT, UNTIL
THE CONGRESS SAYS DIFFERENTLY, THE STATES ARE FREE TO TAX ALL SALES TO
COST-PLUS GOVERNMENT CONTRACTORS.  WE SHOULD DISPENSE WITH FRUITLESS
TALK OF AGENCY, TITLES, AND OBLIGATIONS TO PAY.  THE LEGAL INCIDENCE OF
A TAX IS A MATTER FOR THE STATES TO DETERMINE.  WE SHOULD DECIDE TODAY,
AS WE DID MORE THAN A DECADE AGO, THAT A TAX ON A CONTRACTOR FOR GOODS
HE USES IS CONSTITUTIONAL, EVEN THOUGH THE ECONOMIC BURDEN FALLS ON THE
FEDERAL GOVERNMENT. 

FN1  SEE, FOR EXAMPLE, 86 CONG. REC. 7528, 7532-7535; 88 CONG. REC.
2835, 3464-3466, 4814; HEARINGS BEFORE HOUSE COMMITTEE ON WAYS AND
MEANS ON H.R. 6617, 77TH CONG., 2D SESS. (1942). 

FN2  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134; GRAVES V. NEW YORK
EX REL. O'KEEFE, 306 U.S. 466. 
..END :








IRVINE V. CALIFORNIA 347 U.S. 128 


NO. 12.  ARGUED NOVEMBER 30, 1953 - DECIDED FEBRUARY 8, 1954 - 113 CAL.
APP. 2D 460, 248 P.2D 502, AFFIRMED. 


AFTER ADMISSION OF EVIDENCE OBTAINED BY ILLEGAL ENTRIES INTO HIS HOME,
PETITIONER WAS CONVICTED IN A CALIFORNIA STATE COURT ON CHARGES OF
HORSE-RACE BOOKMAKING AND RELATED OFFENSES UNDER THE STATE ANTI
GAMBLING LAWS.  PRIOR TO PETITIONER'S ARREST, AND WHILE HE AND HIS WIFE
WERE ABSENT FROM THEIR HOME, A POLICE OFFICER ARRANGED WITH A LOCKSMITH
TO GO THERE AND MAKE A KEY TO THE DOOR.  ON THREE DIFFERENT OCCASIONS,
WITHOUT A SEARCH WARRANT OR OTHER PROCESS, OFFICERS AND A TECHNICIAN
ENTERED THE HOME BY MEANS OF THIS KEY AND INSTALLED A CONCEALED
MICROPHONE IN THE HALL AND LATER MOVED IT TO PETITIONER'S BEDROOM AND
THENCE TO A CLOSET.  AT PETITIONER'S TRIAL, OFFICERS WERE ALLOWED TO
TESTIFY, OVER OBJECTION, TO INCRIMINATING CONVERSATIONS HEARD THROUGH
THE LISTENING APPARATUS.  ALSO ADMITTED IN EVIDENCE WERE A FEDERAL
WAGERING TAX STAMP, WHICH PETITIONER HAD ON HIS PERSON WHEN ARRESTED,
AND DOCUMENTS FROM THE OFFICE OF THE UNITED STATES COLLECTOR OF
INTERNAL REVENUE SHOWING HIS APPLICATION FOR THE STAMP AND HIS RETURN
TO THE COLLECTOR.  HELD:  THE CONVICTION IS SUSTAINED AS NOT VIOLATIVE
OF THE FOURTEENTH AMENDMENT OR OF FEDERAL LAW.  PP. 129-139. 

IRVINE V. CALIFORNIA. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PETITIONER'S CONVICTION IN A CALIFORNIA STATE COURT OF OFFENSES UNDER
THE STATE ANTIGAMBLING LAWS WAS AFFIRMED ON APPEAL.  113 CAL. APP. 2D
460, 248 P.2D 502.  THE STATE SUPREME COURT DENIED A PETITION FOR
HEARING.  THIS COURT GRANTED CERTIORARI.  345 U.S. 903.  AFFIRMED, P.
138. 

MR. JUSTICE JACKSON ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE
MINTON JOIN. 

THIS CASE INVOLVES CONSTITUTIONAL QUESTIONS GROWING OUT OF METHODS
EMPLOYED TO CONVICT PETITIONER ON CHARGES OF HORSE-RACE BOOKMAKING AND
RELATED OFFENSES (FN1) AGAINST THE ANTIGAMBLING LAWS OF CALIFORNIA. 
(FN2)  PETITIONER EXHAUSTED ALL AVENUES TO RELIEF UNDER STATE
PROCEDURES AND THEN SOUGHT REVIEW HERE OF DULY RAISED FEDERAL ISSUES. 

WE GRANTED CERTIORARI (FN3) ON A PETITION WHICH TENDERED FOUR
QUESTIONS.  HOWEVER, PETITIONER'S COUNSEL HAS NOW PRESENTED TWO
ADDITIONAL QUESTIONS, ONE CONCERNING THE APPLICATION OF AN IMMUNITY
STATUTE OF CALIFORNIA AND ANOTHER ATTACKING CERTAIN INSTRUCTIONS GIVEN
TO THE JURY BY THE TRIAL COURT.  NEITHER OF THESE WAS MENTIONED IN THE
PETITION.  WE DISAPPROVE THE PRACTICE OF SMUGGLING ADDITIONAL QUESTIONS
INTO A CASE AFTER WE GRANT CERTIORARI.  THE ISSUES HERE ARE FIXED BY
THE PETITION UNLESS WE LIMIT THE GRANT, AS FREQUENTLY WE DO TO AVOID
SETTLED, FRIVOLOUS OR STATE LAW QUESTIONS.  WE DO NOT TAKE UP THE
QUESTIONS NUMBERED 3 AND 6 OF PETITIONER'S BRIEF BECAUSE THEY ARE
IMPROPERLY PRESENTED. 

UPON HIS ARREST, PETITIONER HAD ON HIS PERSON A FEDERAL WAGERING TAX
STAMP BEARING HIS NAME, HOME ADDRESS AND THE DATE, NOVEMBER 5, 1951. 
AGAINST OBJECTION, IT AND OTHER DOCUMENTARY EVIDENCE FROM THE OFFICE OF
THE UNITED STATES COLLECTOR OF INTERNAL REVENUE WAS RECEIVED TO SHOW
PETITIONER'S APPLICATION FOR THE WAGERING TAX STAMP AND HIS RETURN TO
THE COLLECTOR UNDER THE FEDERAL LAW.  THESE DOCUMENTS WERE MADE
PURSUANT TO THE FEDERAL ACT IMPOSING WAGERING TAXES, 65 STAT. 529, 26
U.S.C. (SUPP. V) SEC. 3285 ET SEQ., HELD CONSTITUTIONAL BY THIS COURT
IN UNITED STATES V. KAHRIGER, 345 U.S. 22.  THE CLAIM IS MADE THAT IT
WAS ERROR AS A MATTER OF FEDERAL LAW TO ADMIT THIS EVIDENCE AND ALSO
THAT PAYMENT OF THE FEDERAL TAX RESULTED IN A FEDERAL LICENSE TO
CONDUCT THE WAGERING BUSINESS.   THIS STATUTE DOES DOES NOT MAKE SUCH
RECORDS OR STAMPS CONFIDENTIAL OR PRIVILEGED BUT, ON THE CONTRARY,
EXPRESSLY REQUIRES THE NAME AND PLACE OF BUSINESS OF EACH SUCH TAXPAYER
TO BE MADE PUBLIC.   53 STAT. 395, 26 U.S.C. SEC. 3275.  PETITIONER'S
CONTENTIONS ARE WITHOUT SUBSTANCE OR MERIT IN VIEW OF THE EXPRESS
PROVISION OF THE STATUTE THAT PAYMENT OF THE TAX DOES NOT EXEMPT ANY
PERSON FROM PENALTY OR PUNISHMENT BY STATE LAW AND DOES NOT AUTHORIZE
COMMENCEMENT OR CONTINUANCE OF SUCH BUSINESS.  53 STAT. 395, 26 U.S.C.
SEC. 3276; 65 STAT. 531, 26 U.S.C. (SUPP. V) SEC. 3292.  (FN4) 

BUT THE QUESTIONS RAISED BY THE OFFICERS' CONDUCT WHILE INVESTIGATING
THIS CASE ARE SERIOUS.  THE POLICE STRONGLY SUSPECTED PETITIONER OF
ILLEGAL BOOKMAKING BUT WERE WITHOUT PROOF OF IT.  ON DECEMBER 1, 1951,
WHILE IRVINE AND HIS WIFE WERE ABSENT FROM THEIR HOME, AN OFFICER
ARRANGED TO HAVE A LOCKSMITH GO THERE AND MAKE A DOOR KEY.  TWO DAYS
LATER, AGAIN IN THE ABSENCE OF OCCUPANTS, OFFICERS AND A TECHNICIAN
MADE ENTRY INTO THE HOME BY THE USE OF THIS KEY AND INSTALLED A
CONCEALED MICROPHONE IN THE HALL.  A HOLE WAS BORED IN THE ROOF OF THE
HOUSE AND WIRES WERE STRUNG TO TRANSMIT TO A NEIGHBORING GARAGE
WHATEVER SOUNDS THE MICROPHONE MIGHT PICK UP.  OFFICERS WERE POSTED IN
THE GARAGE TO LISTEN.  ON DECEMBER 8, POLICE AGAIN MADE SURREPTITIOUS
ENTRY AND MOVED THE MICROPHONE, THIS TIME HIDING IT IN THE BEDROOM. 
TWENTY DAYS LATER, THEY AGAIN ENTERED AND PLACED THE MICROPHONE IN A
CLOSET, WHERE THE DEVICE REMAINED UNTIL ITS PURPOSE OF ENABLING THE
OFFICERS TO OVERHEAR INCRIMINATING STATEMENTS WAS ACCOMPLISHED. 

WE SHOULD NOTE THAT THIS IS NOT A CONVENTIONAL INSTANCE OF "WIRE
TAPPING."  HERE THE APPARATUS OF THE OFFICERS WAS NOT IN ANY WAY
CONNECTED WITH THE TELEPHONE FACILITIES, THERE WAS NO INTERFERENCE WITH
THE COMMUNICATIONS SYSTEM, THERE WAS NO INTERCEPTION OF ANY MESSAGE. 
ALL THAT WAS HEARD THROUGH THE MICROPHONE WAS WHAT AN EAVESDROPPER,
HIDDEN IN THE HALL, THE BEDROOM, OR THE CLOSET, MIGHT HAVE HEARD.  WE
DO NOT SUPPOSE IT IS ILLEGAL TO TESTIFY TO WHAT ANOTHER PERSON IS HEARD
TO SAY MERELY BECAUSE HE IS SAYING IT INTO A TELEPHONE.  WE CANNOT
SUSTAIN THE CONTENTION THAT THE CONDUCT OR RECEPTION OF THE EVIDENCE
VIOLATED THE FEDERAL COMMUNICATIONS ACT.  48 STAT. 1103, 47 U.S.C. SEC.
605.  CF. NARDONE V. UNITED STATES, 308 U.S. 338; GOLDMAN V. UNITED
STATES, 316 U.S. 129; SCHWARTZ V. TEXAS, 344 U.S. 199. 

AT THE TRIAL, OFFICERS WERE ALLOWED TO TESTIFY TO CONVERSATIONS HEARD
THROUGH THEIR LISTENING INSTALLATIONS.  THE SNATCHES OF CONVERSATION
WHICH THE PROSECUTION THOUGHT USEFUL WERE RECEIVED IN EVIDENCE.  THEY
WERE IN THE LINGO OF THE RACE TRACK AND NEED NOT BE RECITED, BUT THE
JURY MIGHT WELL HAVE REGARDED THEM AS INCRIMINATING.  THE TESTIMONY WAS
RECEIVED UNDER OBJECTION, PROPERLY RAISING THE QUESTION THAT IT WAS
CONSTITUTIONALLY INADMISSIBLE SINCE OBTAINED BY METHODS WHICH VIOLATE
THE FOURTEENTH AMENDMENT. 

EACH OF THESE REPEATED ENTRIES OF PETITIONER'S HOME WITHOUT A SEARCH
WARRANT OR OTHER PROCESS WAS A TRESPASS, AND PROBABLY A BURGLARY, FOR
WHICH ANY UNOFFICIAL PERSON SHOULD BE, AND PROBABLY WOULD BE, SEVERELY
PUNISHED.  SCIENCE HAS PERFECTED AMPLIFYING AND RECORDING DEVICES TO
BECOME FRIGHTENING INSTRUMENTS OF SURVEILLANCE AND INVASION OF PRIVACY,
WHETHER BY THE POLICEMAN, THE BLACKMAILER, OR THE BUSYBODY.  THAT
OFFICERS OF THE LAW WOULD BREAK AND ENTER A HOME, SECRETE SUCH A
DEVICE, EVEN IN A BEDROOM, AND LISTEN TO THE CONVERSATION OF THE
OCCUPANTS FOR OVER A MONTH WOULD BE ALMOST INCREDIBLE IF IT WERE NOT
ADMITTED.  FEW POLICE MEASURES HAVE COME TO OUR ATTENTION THAT MORE
FLAGRANTLY, DELIBERATELY, AND PERSISTENTLY VIOLATED THE FUNDAMENTAL
PRINCIPLE DECLARED BY THE FOURTH AMENDMENT AS A RESTRICTION ON THE
FEDERAL GOVERNMENT THAT "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR
PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON
PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED."  THE DECISION IN WOLF V. COLORADO, 338 U.S. 25, 27, FOR THE
FIRST TIME ESTABLISHED THAT "THE SECURITY OF ONE'S PRIVACY AGAINST
ARBITRARY INTRUSION BY THE POLICE" IS EMBODIED IN THE CONCEPT OF DUE
PROCESS FOUND IN THE FOURTEENTH AMENDMENT. 

BUT WOLF, FOR REASONS SET FORTH THEREIN, DECLINED TO MAKE THE
SUBSIDIARY PROCEDURAL AND EVIDENTIARY DOCTRINES DEVELOPED BY THE
FEDERAL COURTS LIMITATIONS ON THE STATES.  ON THE CONTRARY, IT
DECLARED, "WE HOLD, THEREFORE, THAT IN A PROSECUTION IN A STATE COURT
FOR A STATE CRIME THE FOURTEENTH AMENDMENT DOES NOT FORBID THE
ADMISSION OF EVIDENCE OBTAINED BY AN UNREASONABLE SEARCH AND SEIZURE." 
338 U.S. 25, 33.  SEE STEFANELLI V. MINARD, 342 U.S. 117, 119, 122. 
THAT HOLDING WOULD SEEM TO CONTROL HERE. 

AN EFFORT IS MADE, HOWEVER, TO BRING THIS CASE UNDER THE SWAY OF
ROCHIN V. CALIFORNIA, 342 U.S. 165.  THAT CASE INVOLVED, AMONG OTHER
THINGS, AN ILLEGAL SEARCH OF THE DEFENDANT'S PERSON.  BUT IT ALSO
PRESENTED AN ELEMENT TOTALLY LACKING HERE - COERCION (AS THE COURT
NOTED, P. 173), APPLIED BY A PHYSICAL ASSAULT UPON HIS PERSON TO COMPEL
SUBMISSION TO THE USE OF A STOMACH PUMP.  THIS WAS THE FEATURE WHICH
LED TO A RESULT IN ROCHIN CONTRARY TO THAT IN WOLF.  ALTHOUGH ROCHIN
RAISED THE SEARCH-AND-SEIZURE QUESTION, THIS COURT STUDIOUSLY AVOIDED
IT AND NEVER ONCE MENTIONED THE WOLF CASE.  OBVIOUSLY, IT THOUGHT THAT
ILLEGAL SEARCH AND SEIZURE ALONE DID NOT CALL FOR REVERSAL.  HOWEVER
OBNOXIOUS ARE THE FACTS IN THE CASE BEFORE US, THEY DO NOT INVOLVE
COERCION, VIOLENCE OR BRUTALITY TO THE PERSON, BUT RATHER A TRESPASS TO
PROPERTY, PLUS EAVESDROPPING. 

IT IS SUGGESTED, HOWEVER, THAT ALTHOUGH WE AFFIRMED THE CONVICTION IN
WOLF, WE SHOULD REVERSE HERE BECAUSE THIS INVASION OF PRIVACY IS MORE
SHOCKING, MORE OFFENSIVE, THAN THE ONE INVOLVED THERE.  THE OPINIONS IN
WOLF WERE WRITTEN ENTIRELY IN THE ABSTRACT AND DID NOT DISCLOSE THE
DETAILS OF THE CONSTITUTIONAL VIOLATION.  ACTUALLY, THE SEARCH WAS
OFFENSIVE TO THE LAW IN THE SAME RESPECT, IF NOT THE SAME DEGREE, AS
HERE.  A DEPUTY SHERIFF AND OTHERS WENT TO A DOCTOR'S OFFICE WITHOUT A
WARRANT AND SEIZED HIS APPOINTMENT BOOK, SEARCHED THROUGH IT TO LEARN
THE NAMES OF ALL HIS PATIENTS, LOOKED UP AND INTERROGATED CERTAIN OF
THEM, AND FILED AN INFORMATION AGAINST THE DOCTOR ON THE INFORMATION
THAT THE DISTRICT ATTORNEY HAD OBTAINED FROM THE BOOKS.  THE BOOKS ALSO
WERE INTRODUCED IN EVIDENCE AGAINST THE DOCTOR AT HIS TRIAL. 

WE ARE URGED TO MAKE INROADS UPON WOLF BY HOLDING THAT IT APPLIES
ONLY TO SEARCHES AND SEIZURES WHICH PRODUCE ON OUR MINDS A MILD SHOCK,
WHILE IF THE SHOCK IS MORE SERIOUS, THE STATES MUST EXCLUDE THE
EVIDENCE OR WE WILL REVERSE THE CONVICTION.  WE THINK THAT THE WOLF
DECISION SHOULD NOT BE OVERRULED, FOR THE REASONS SO PERSUASIVELY
STATED THEREIN.  WE THINK, TOO, THAT A DISTINCTION OF THE KIND URGED
WOULD LEAVE THE RULE SO INDEFINITE THAT NO STATE COURT COULD KNOW WHAT
IT SHOULD RULE IN ORDER TO KEEP ITS PROCESSES ON SOLID CONSTITUTIONAL
GROUND. 

EVEN AS TO THE SUBSTANTIVE RULE GOVERNING FEDERAL SEARCHES IN
VIOLATION OF THE FOURTH AMENDMENT, BOTH THE COURT AND INDIVIDUAL
JUSTICES HAVE WAVERED CONSIDERABLY.  COMPARE HARRIS V. UNITED STATES,
331 U.S. 145; TRUPIANO V. UNITED STATES, 334 U.S. 699; UNITED STATES V.
RABINOWITZ, 339 U.S. 56; BRINEGAR V. UNITED STATES, 338 U.S. 160;
GOLDMAN V. UNITED STATES, 316 U.S. 129; ON LEE V. UNITED STATES, 343
U.S. 747.  NEVER UNTIL JUNE OF 1949 DID THIS COURT HOLD THE BASIC
SEARCH-AND-SEIZURE PROHIBITION IN ANY WAY APPLICABLE TO THE STATES
UNDER THE FOURTEENTH AMENDMENT.  AT THAT TIME, AS WE POINTED OUT,
THIRTY-ONE STATES WERE NOT FOLLOWING THE FEDERAL RULE EXCLUDING
ILLEGALLY OBTAINED EVIDENCE, WHILE SIXTEEN WERE IN AGREEMENT WITH IT.
NOW THAT THE WOLF DOCTRINE IS KNOWN TO THEM, STATE COURTS MAY WISH
FURTHER TO RECONSIDER THEIR EVIDENTIARY RULES.  BUT TO UPSET STATE
CONVICTIONS EVEN BEFORE THE STATES HAVE HAD ADEQUATE OPPORTUNITY TO
ADOPT OR REJECT THE RULE WOULD BE AN UNWARRANTED USE OF FEDERAL POWER. 
THE CHIEF BURDEN OF ADMINISTERING CRIMINAL JUSTICE RESTS UPON STATE
COURTS.  TO IMPOSE UPON THEM THE HAZARD OF FEDERAL REVERSAL FOR
NONCOMPLIANCE WITH STANDARDS AS TO WHICH THIS COURT AND ITS MEMBERS
HAVE BEEN SO INCONSTANT AND INCONSISTENT WOULD NOT BE JUSTIFIED.  WE
ADHERE TO WOLF AS STATING THE LAW OF SEARCH-AND-SEIZURE CASES AND
DECLINE TO INTRODUCE VAGUE AND SUBJECTIVE DISTINCTIONS. 

WHETHER TO EXCLUDE ILLEGALLY OBTAINED EVIDENCE IN FEDERAL TRIALS IS
LEFT LARGELY TO OUR DISCRETION, FOR ADMISSIBILITY OF EVIDENCE IS
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."  FED. RULES CRIM. PROC., 26.  AS WE HAVE POINTED OUT,
REASON HAS LED STATE COURTS TO DIFFERING CONCLUSIONS, BUT ABOUT TWO
THIRDS OF THEM TO ACCEPTANCE OF THE ILLEGALLY OBTAINED EVIDENCE.  WHAT
ACTUAL EXPERIENCE TEACHES WE REALLY DO NOT KNOW.  OUR CASES EVIDENCE
THE FACT THAT THE FEDERAL RULE OF EXCLUSION AND OUR REVERSAL OF
CONVICTION FOR ITS VIOLATION ARE NOT SANCTIONS WHICH PUT AN END TO
ILLEGAL SEARCH AND SEIZURE BY FEDERAL OFFICERS.  THE RULE WAS ANNOUNCED
IN 1914 IN WEEKS V. UNITED STATES, 232 U.S. 383.  THE EXTENT TO WHICH
THE PRACTICE WAS CURTAILED, IF AT ALL, IS DOUBTFUL.  THE LOWER FEDERAL
COURTS, AND EVEN THIS COURT, (FN5) HAVE REPEATEDLY BEEN CONSTRAINED TO
ENFORCE THE RULE AFTER ITS VIOLATION.  THERE IS NO RELIABLE EVIDENCE
KNOWN TO US THAT INHABITANTS OF THOSE STATES WHICH EXCLUDE THE EVIDENCE
SUFFER LESS FROM LAWLESS SEARCHES AND SEIZURES THAN THOSE OF STATES
THAT ADMIT IT.  EVEN THIS COURT HAS NOT SEEN FIT TO EXCLUDE ILLEGALLY
SEIZED EVIDENCE IN FEDERAL CASES UNLESS A FEDERAL OFFICER PERPRETRATED
THE WRONG.  PRIVATE DETECTIVES MAY USE METHODS TO OBTAIN EVIDENCE NOT
OPEN TO OFFICERS OF THE LAW.  BURDEAU V. MCDOWELL, 256 U.S. 465; SEE
MCGUIRE V. UNITED STATES, 273 U.S. 95, 99; CF. FELDMAN V. UNITED
STATES, 322 U.S. 487; LUSTIG V. UNITED STATES, 338 U.S. 74.  AND THE
LOWER FEDERAL COURTS, TREATING THE FOURTH AMENDMENT RIGHT AS PERSONAL
TO THE ONE ASSERTING IT, HAVE HELD THAT HE WHO OBJECTS MUST CLAIM SOME
PROPRIETARY OR POSSESSORY INTEREST IN THAT WHICH WAS UNLAWFULLY
SEARCHED OR SEIZED.  E.G., CONNOLLY V. MEDALIE, 58 F.2D 629; STEEBER V.
UNITED STATES, 198 F.2D 615, 617.  SEE GOLDSTEIN V. UNITED STATES, 316
U.S. 114, 121; WOLF V. COLORADO, SUPRA, AT 30-31.  CF. UNITED STATES V.
JEFFERS, 342 U.S. 48. 

IT MUST BE REMEMBERED THAT PETITIONER IS NOT INVOKING THE
CONSTITUTION TO PREVENT OR PUNISH A VIOLATION OF HIS FEDERAL RIGHT
RECOGNIZED IN WOLF OR TO RECOVER REPARATIONS FOR THE VIOLATION.  HE IS
INVOKING IT ONLY TO SET ASIDE HIS OWN CONVICTION OF CRIME.  THAT THE
RULE OF EXCLUSION AND REVERSAL RESULTS IN THE ESCAPE OF GUILTY PERSONS
IS MORE CAPABLE OF DEMONSTRATION THAN THAT IT DETERS INVASIONS OF RIGHT
BY THE POLICE.  THE CASE IS MADE, SO FAR AS THE POLICE ARE CONCERNED,
WHEN THEY ANNOUNCE THAT THEY HAVE ARRESTED THEIR MAN.  REJECTION OF THE
EVIDENCE DOES NOTHING TO PUNISH THE WRONG-DOING OFFICIAL, WHILE IT MAY,
AND LIKELY WILL, RELEASE THE WRONG-DOING DEFENDANT.  IT DEPRIVES
SOCIETY OF ITS REMEDY AGAINST ONE LAWBREAKER BECAUSE HE HAS BEEN
PURSUED BY ANOTHER.  IT PROTECTS ONE AGAINST WHOM INCRIMINATING
EVIDENCE IS DISCOVERED, BUT DOES NOTHING TO PROTECT INNOCENT PERSONS
WHO ARE THE VICTIMS OF ILLEGAL BUT FRUITLESS SEARCHES.  THE
DISCIPLINARY OR EDUCATIONAL EFFECT OF THE COURT'S RELEASING THE
DEFENDANT FOR POLICE MISBEHAVIOR IS SO INDIRECT AS TO BE NO MORE THAN A
MILD DETERRENT AT BEST.  SOME DISCRETION IS STILL LEFT TO THE STATES IN
CRIMINAL CASES, FOR WHICH THEY ARE LARGELY RESPONSIBLE, AND WE THINK IT
IS FOR THEM TO DETERMINE WHICH RULE BEST SERVES THEM. 

BUT ADMISSION OF THE EVIDENCE DOES NOT EXONERATE THE OFFICERS AND
THEIR AIDES IF THEY HAVE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS. 
IT WAS POINTED OUT IN WOLF V. COLORADO, SUPRA, THAT OTHER REMEDIES ARE
AVAILABLE FOR OFFICIAL LAWLESSNESS, ALTHOUGH TOO OFTEN THOSE REMEDIES
ARE OF NO PRACTICAL AVAIL.  THE DIFFICULTY WITH THEM IS IN PART DUE TO
THE FAILURE OF INTERESTED PARTIES TO INFORM OF THE OFFENSE.  NO MATTER
WHAT AN ILLEGAL RAID TURNS UP, POLICE ARE UNLIKELY TO INFORM ON
THEMSELVES OR EACH OTHER.  IF IT TURNS UP NOTHING INCRIMINATING, THE
INNOCENT VICTIM USUALLY DOES NOT CARE TO TAKE STEPS WHICH WILL AIR THE
FACT THAT HE HAS BEEN UNDER SUSPICION.  AND THE PROSPECT THAT THE
GUILTY MAY CAPITALIZE ON THE OFFICIAL WRONGDOING IN HIS DEFENSE, OR TO
OBTAIN REVERSAL FROM A HIGHER COURT, REMOVES ANY MOTIVE HE MIGHT HAVE
TO INFORM. 

IT APPEARS TO THE WRITER, IN WHICH VIEW HE IS SUPPORTED BY THE CHIEF
JUSTICE, THAT THERE IS NO LACK OF REMEDY IF AN UNCONSTITUTIONAL WRONG
HAS BEEN DONE IN THIS INSTANCE WITHOUT UPSETTING A JUSTIFIABLE
CONVICTION OF THIS COMMON GAMBLER.  IF THE OFFICIALS HAVE WILLFULLY
DEPRIVED A CITIZEN OF THE UNITED STATES OF A RIGHT OR PRIVILEGE SECURED
TO HIM BY THE FOURTEENTH AMENDMENT, THAT BEING THE RIGHT TO BE SECURE
IN HIS HOME AGAINST UNREASONABLE SEARCHES, AS DEFINED IN WOLF V.
COLORADO, SUPRA, THEIR CONDUCT MAY CONSTITUTE A FEDERAL CRIME UNDER 62
STAT. 696, 18 U.S.C. (SUPP. III) SEC. 242.  THIS SECTION PROVIDES THAT
WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION OR
CUSTOM, WILLFULLY SUBJECTS ANY INHABITANT OF ANY STATE TO THE
DEPRIVATION OF ANY RIGHTS, PRIVILEGES OR IMMUNITIES SECURED OR
PROTECTED BY THE CONSTITUTION OF THE UNITED STATES SHALL BE FINED OR
IMPRISONED.  SEE WILLIAMS V. UNITED STATES, 341 U.S. 97; SCREWS V.
UNITED STATES, 325 U.S. 91.  IT DOES NOT APPEAR THAT THE STATUTE OF
LIMITATIONS YET BARS PROSECUTIONS.  45 STAT. 51, 18 U.S.C. SEC. 582. 
WE BELIEVE THE CLERK OF THIS COURT SHOULD BE DIRECTED TO FORWARD A COPY
OF THE RECORD IN THIS CASE, TOGETHER WITH A COPY OF THIS OPINION, FOR
ATTENTION OF THE ATTORNEY GENERAL OF THE UNITED STATES.  HOWEVER, MR.
JUSTICE REED AND MR. JUSTICE MINTON DO NOT JOIN IN THIS PARAGRAPH. 
JUDGMENT AFFIRMED. 

FN1  KEEPING PREMISES WITH PARAPHERNALIA FOR THE PURPOSE OF RECORDING
AND REGISTERING BETS ON HORSE RACING, RECEIVING MONEY AND THE
EQUIVALENT THEREOF WHICH HAD BEEN OR WAS TO BE WAGERED ON HORSE RACES,
AND RECORDING AND REGISTERING BETS ON HORSE RACES. 

FN2  DEERING'S CAL. PENAL CODE, 1949, SECS. 337A(1), (2), (3), AND
(4). 

FN3  345 U.S. 903. 

FN4  PETITIONER'S QUESTION NUMBER 2, WHICH CHALLENGES THE STATE'S USE
OF "COMPELLED EVIDENCE" OBTAINED UNDER THE FEDERAL WAGERING STATUTE, IS
ANSWERED IN UNITED STATES V. KAHRIGER, SUPRA, AT 32. 

FN5  E.G., SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385;
GOULED V. UNITED STATES, 255 U.S. 298; AMOS V. UNITED STATES, 255 U.S.
313; AGNELLO V. UNITED STATES, 269 U.S. 20; BYARS V. UNITED STATES, 273
U.S. 28; GAMBINO V. UNITED STATES, 275 U.S. 310; GO-BART IMPORTING CO.
V. UNITED STATES, 282 U.S. 344; UNITED STATES V. LEFKOWITZ, 285 U.S.
452; TAYLOR V. UNITED STATES, 286 U.S. 1; GRAU V. UNITED STATES, 287
U.S. 124; NATHANSON V. UNITED STATES, 290 U.S. 41; UNITED STATES V. DI
RE, 332 U.S. 581; JOHNSON V. UNITED STATES, 333 U.S. 10; TRUPIANO V.
UNITED STATES, 334 U.S. 699; MCDONALD V. UNITED STATES, 335 U.S. 451;
LUSTIG V. UNITED STATES, 338 U.S. 74; UNITED STATES V. JEFFERS, 342
U.S. 48.  THE COURT HAS ALSO CITED THE DOCTRINE WITH APPROVAL IN MANY
RELATED CASES.  E.G., PERLMAN V. UNITED STATES, 247 U.S. 7; BURDEAU V.
MCDOWELL, 256 U.S. 465; CARROLL V. UNITED STATES, 267 U.S. 132; MCGUIRE
V. UNITED STATES, 273 U.S. 95; MARRON V. UNITED STATES, 275 U.S. 192;
OLMSTEAD V. UNITED STATES, 277 U.S. 438; PALKO V. CONNECTICUT, 302 U.S.
319; GOLDSTEIN V. UNITED STATES, 316 U.S. 114; MCNABB V. UNITED STATES,
318 U.S. 332; FELDMAN V. UNITED STATES, 322 U.S. 487; DAVIS V. UNITED
STATES, 328 U.S. 582; ZAP V. UNITED STATES, 328 U.S. 624; HARRIS V.
UNITED STATES, 331 U.S. 145; UNITED STATES V. WALLACE & TIERNAN CO.,
336 U.S. 793; UNITED STATES V. RABINOWITZ, 339 U.S. 56; ON LEE V.
UNITED STATES, 343 U.S. 747.  SEE APPENDIX TO DISSENTING OPINION OF MR.
JUSTICE FRANKFURTER IN HARRIS V. UNITED STATES, SUPRA, AT 175. 

MR. JUSTICE CLARK, CONCURRING. 

HAD I BEEN HERE IN 1949 WHEN WOLF WAS DECIDED, I WOULD HAVE APPLIED
THE DOCTRINE OF WEEKS V. UNITED STATES, 232 U.S. 383 (1914), TO THE
STATES.  BUT THE COURT REFUSED TO DO SO THEN, AND IT STILL REFUSES
TODAY.  THUS WOLF REMAINS THE LAW AND, AS SUCH, IS ENTITLED TO THE
RESPECT OF THIS COURT'S MEMBERSHIP. 

OF COURSE, WE COULD STERILIZE THE RULE ANNOUNCED IN WOLF BY ADOPTING
A CASE-BY-CASE APPROACH TO DUE PROCESS, IN WHICH INCHOATE NOTIONS OF
PROPRIETY CONCERNING LOCAL POLICE CONDUCT GUIDE OUR DECISIONS.  BUT
THIS MAKES FOR SUCH UNCERTAINTY AND UNPREDICTABILITY THAT IT WOULD BE
IMPOSSIBLE TO FORETELL - OTHER THAN BY GUESSWORK - JUST HOW BRAZEN THE
INVASION OF THE INTIMATE PRIVACIES OF ONE'S HOME MUST BE IN ORDER TO
SHOCK ITSELF INTO THE PROTECTIVE ARMS OF THE CONSTITUTION.  IN TRUTH,
THE PRACTICAL RESULT OF THIS AD HOC APPROACH IS SIMPLY THAT WHEN FIVE
JUSTICES ARE SUFFICIENTLY REVOLTED BY LOCAL POLICE ACTION, A CONVICTION
IS OVERTURNED AND A GUILTY MAN MAY GO FREE.  ROCHIN BEARS WITNESS TO
THIS.  WE MAY THUS VINDICATE THE ABSTRACT PRINCIPLE OF DUE PROCESS, BUT
WE DO NOT SHAPE THE CONDUCT OF LOCAL POLICE ONE WHIT; UNPREDICTABLE
REVERSALS ON DISSIMILAR FACT SITUATIONS ARE NOT LIKELY TO CURB THE ZEAL
OF THOSE POLICE AND PROSECUTORS WHO MAY BE INTENT ON RACKING UP A HIGH
PERCENTAGE OF SUCCESSFUL PROSECUTIONS.  I DO NOT BELIEVE THAT THE
EXTENSION OF SUCH A VACILLATING COURSE BEYOND THE CLEAR CASES OF
PHYSICAL COERCION AND BRUTALITY, SUCH AS ROCHIN, WOULD SERVE A USEFUL
PURPOSE. 

IN LIGHT OF THE "INCREDIBLE" ACTIVITY OF THE POLICE HERE, IT IS WITH
GREAT RELUCTANCE THAT I FOLLOW WOLF.  PERHAPS STRICT ADHERENCE TO THE
TENOR OF THAT DECISION MAY PRODUCE NEEDED CONVERTS FOR ITS EXTINCTION. 
THUS I MERELY CONCUR IN THE JUDGMENT OF AFFIRMANCE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

I WOULD REVERSE THIS CONVICTION BECAUSE THE PETITIONER IRVINE WAS
FOUND GUILTY OF A CRIME AND SENTENCED TO PRISON ON EVIDENCE EXTORTED
FROM HIM BY THE FEDERAL GOVERNMENT IN VIOLATION OF THE FIFTH
AMENDMENT. 

FEDERAL LAW MAKES IT A CRIME PUNISHABLE BY FINE, IMPRISONMENT, OR
BOTH, FOR A PERSON TO RUN A GAMBLING BUSINESS WITHOUT MAKING A REPORT
TO THE GOVERNMENT AND BUYING A FEDERAL WAGERING TAX STAMP, BOTH OF
WHICH REVEAL HIS GAMBLING OPERATIONS.  (FN1)  PETITIONER MADE THE
NECESSARY REPORT OF HIS GAMBLING ACTIVITIES IN CALIFORNIA AND BOUGHT
THE REQUIRED TAX STAMP.  THE INFORMATION HE GAVE AND THE STAMP HE
BOUGHT WERE USED IN THIS CASE TO CONVICT AND SENTENCE HIM TO PRISON FOR
VIOLATING CALIFORNIA'S ANTIGAMBLING LAW.  FOR REASONS GIVEN IN MY
DISSENT IN UNITED STATES V. KAHRIGER, 345 U.S. 22, 36, I BELIEVE THE
FEDERAL LAW THAT EXTRACTED THE DISCLOSURES AND REQUIRED THE TAX STAMP
VIOLATES THE FIFTH AMENDMENT'S COMMAND THAT A PERSON SHALL NOT BE
COMPELLED TO BE A WITNESS AGAINST HIMSELF.  BUT EVEN THOUGH THE LAW IS
VALID, AS THE COURT HELD, USE OF SUCH FORCED CONFESSIONS TO CONVICT THE
CONFESSORS STILL AMOUNTS TO COMPELLING A PERSON TO TESTIFY AGAINST
HIMSELF IN VIOLATION OF THE FIFTH AMENDMENT. 

I CANNOT AGREE THAT THE AMENDMENT'S GUARANTEE AGAINST SELF
INCRIMINATION TESTIMONY CAN BE SPIRITED AWAY BY THE INGENIOUS
CONTRIVANCE OF USING FEDERALLY EXTORTED CONFESSIONS TO CONVICT OF STATE
CRIMES AND VICE VERSA.  (FN2)  LICENSING SUCH EASY EVASION OF THE
AMENDMENT HAS PROVEN A HEAVY DRAIN ON ITS VITALITY ALTHOUGH NO SUCH
DEBILITATING INTERPRETATION WAS GIVEN THE AMENDMENT BY THIS COURT UNTIL
IT DECIDED UNITED STATES V. MURDOCK IN 1931, ONE HUNDRED AND FORTY
YEARS AFTER THE BILL OF RIGHTS WAS ADOPTED.  (FN3)  THAT CONSTRUCTION
WAS RESTED ON THE PREMISE THAT A STATE AND THE UNITED STATES ARE SO
SEPARATE AND FOREIGN TO ONE ANOTHER THAT NEITHER OF THEM NEED PROTECT
WITNESSES AGAINST BEING FORCED TO ADMIT OFFENSES AGAINST THE LAWS OF
THE OTHER.  (FN4)  THIS TREATMENT OF THE STATES AND THE FEDERAL
GOVERNMENT AS THOUGH THEY WERE ENTIRELY FOREIGN TO EACH OTHER IS WHOLLY
CONCEPTUALISTIC AND CANNOT JUSTIFY SUCH A NARROW INTERPRETATION OF THE
FIFTH AMENDMENT'S LANGUAGE AND THE RESULTING FRUSTRATION OF ITS
PURPOSE. 

I THINK THE FIFTH AMENDMENT OF ITSELF FORBIDS ALL FEDERAL AGENTS,
LEGISLATIVE, EXECUTIVE AND JUDICIAL, TO FORCE A PERSON TO CONFESS A
CRIME; FORBIDS THE USE OF SUCH A FEDERALLY COERCED CONFESSION IN ANY
COURT, STATE OR FEDERAL; AND FORBIDS ALL FEDERAL COURTS TO USE A
CONFESSION WHICH A PERSON HAS BEEN COMPELLED TO MAKE AGAINST HIS WILL. 

THE FIFTH AMENDMENT FORBIDS THE FEDERAL GOVERNMENT AND THE AGENTS
THROUGH WHICH IT ACTS - COURTS, GRAND JURIES, PROSECUTORS, MARSHALS OR
OTHER OFFICERS - TO USE PHYSICAL TORTURE, PSYCHOLOGICAL PRESSURE,
THREATS OF FINES, IMPRISONMENT OR PROSECUTION, OR OTHER GOVERNMENTAL
PRESSURE TO FORCE A PERSON TO TESTIFY AGAINST HIMSELF.  AND IF THE
FEDERAL GOVERNMENT DOES EXTRACT INCRIMINATING TESTIMONY, AS THE COURT
HAS HELD IT MAY IN COMPELLING GAMBLERS TO CONFESS, THE IMMUNITY
PROVIDED BY THE AMENDMENT SHOULD AT THE VERY LEAST PREVENT THE USE OF
SUCH TESTIMONY IN ANY COURT, FEDERAL OR STATE.  (FN5)  THE USE OF SUCH
TESTIMONY IS BARRED, EVEN THOUGH THE FIFTH AMENDMENT MAY NOT OF ITSELF
PROHIBIT THE STATES OR THEIR AGENTS FROM EXTORTING INCRIMINATING
TESTIMONY.  (FN6)  THE AMENDMENT DOES PLAINLY PROHIBIT ALL FEDERAL
AGENCIES FROM USING THEIR POWER TO FORCE SELF-INCRIMINATORY
STATEMENTS.  CONSEQUENTLY, SINCE THE AMENDMENT IS THE SUPREME LAW OF
THE LAND AND IS BINDING ON ALL AMERICAN JUDGES, THE USE OF FEDERALLY
COERCED TESTIMONY TO CONVICT A PERSON OF CRIME IN ANY COURT, STATE OR
FEDERAL, IS FORBIDDEN. 

THE FIFTH AMENDMENT NOT ONLY FORBIDS AGENTS OF THE FEDERAL GOVERNMENT
TO COMPEL A PERSON TO BE A WITNESS AGAINST HIMSELF; IT FORBIDS FEDERAL
COURTS TO CONVICT PERSONS ON THEIR OWN FORCED TESTIMONY, WHATEVER
"SOVEREIGN" - FEDERAL OR STATE - MAY HAVE COMPELLED IT.  OTHERWISE, THE
CONSTITUTIONAL MANDATE AGAINST SELF-INCRIMINATION IS AN ILLUSORY
SAFEGUARD THAT COLLAPSES WHENEVER A CONFESSION IS EXTORTED BY ANYONE
OTHER THAN THE FEDERAL GOVERNMENT. 

THOUGH NOT ESSENTIAL TO DISPOSITION OF THIS CASE, IT SEEMS
APPROPRIATE TO ADD THAT I THINK THE FOURTEENTH AMENDMENT MAKES THE
FIFTH AMENDMENT APPLICABLE TO STATES AND THAT STATE COURTS LIKE FEDERAL
COURTS ARE THEREFORE BARRED FROM CONVICTING A PERSON FOR CRIME ON
TESTIMONY WHICH EITHER STATE OR FEDERAL OFFICERS HAVE COMPELLED HIM TO
GIVE AGAINST HIMSELF.  (FN7)  THE CONSTRUCTION I GIVE TO THE FIFTH AND
FOURTEENTH AMENDMENTS MAKES IT POSSIBLE FOR ME TO ADHERE TO WHAT WE
SAID IN ASHCRAFT V. TENNESSEE, 322 U.S. 143, 155, THAT "THE
CONSTITUTION OF THE UNITED STATES STANDS AS A BAR AGAINST THE
CONVICTION OF ANY INDIVIDUAL IN AN AMERICAN COURT BY MEANS OF A COERCED
CONFESSION." 

SO FAR AS THIS CASE IS CONCERNED IT IS ENOUGH FOR ME THAT IRVINE WAS
CONVICTED IN A STATE COURT ON A CONFESSION COERCED BY THE FEDERAL
GOVERNMENT.  I BELIEVE THIS FRUSTRATES A BASIC PURPOSE OF THE FIFTH
AMENDMENT - TO FREE AMERICANS FROM FEAR THAT FEDERAL POWER COULD BE
USED TO COMPEL THEM TO CONFESS CONDUCT OR BELIEFS IN ORDER TO TAKE AWAY
THEIR LIFE, LIBERTY OR PROPERTY.  FOR THIS REASON I WOULD REVERSE
IRVINE'S CONVICTION. 

IT HAS BEEN SUGGESTED THAT THE COURT SHOULD CALL ON THE ATTORNEY
GENERAL TO INVESTIGATE THIS RECORD IN ORDER TO START CRIMINAL
PROSECUTIONS AGAINST CERTAIN CALIFORNIA OFFICERS.  I WOULD STRONGLY
OBJECT TO ANY SUCH ACTION BY THIS COURT.  IT IS INCONSISTENT WITH MY
OWN VIEW OF THE JUDICIAL FUNCTION IN OUR GOVERNMENT.  PROSECUTION, OR
ANYTHING APPROACHING IT, SHOULD, I THINK, BE LEFT TO GOVERNMENT
OFFICERS WHOSE DUTY THAT IS. 

FN1  65 STAT. 529, 26 U.S.C. (SUPP. V) SECS. 3285, 3287. 

FN2  SEE MY DISSENT IN FELDMAN V. UNITED STATES, 322 U.S. 487, 494. 

FN3  284 U.S. 141, AND SEE UNITED STATES V. THE SALINE BANK OF
VIRGINIA, 1 PET. 100; BROWN V. WALKER, 161 U.S. 591, 606, 608; BALLMANN
V. FAGIN, 200 U.S. 186; VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273
U.S. 103; UNITED STATES V. MURDOCK, 290 U.S. 389, 396. 

FN4  RELIANCE FOR THIS VIEW WAS PLACED MAINLY ON TWO ENGLISH CASES,
KING OF THE TWO SICILIES V. WILLCOX, 7 STATE TRIALS (N.S.)  1049, AND
QUEEN V. BOYES, 1 B.&S. 311.  284 U.S., AT 149.  SEE DISCUSSION OF
THESE TWO CASES AS RELATED TO THE FIFTH AMENDMENT PRIVILEGE AGAINST
SELF-INCRIMINATION IN GRANT, IMMUNITY FROM COMPULSORY SELF
INCRIMINATION, 9 TEMP.  L.Q. 57-70 AND 194-212, PARTICULARLY 59-62 AND
196-204.    FN5  COUNSELMAN V. HITCHCOCK, 142 U.S. 547. 

FN6  SEE BARRON V. BALTIMORE, 7 PET. 243. 

FN7  ADAMSON V. CALIFORNIA, 332 U.S. 46, 68 (DISSENTING OPINION);
ROCHIN V. CALIFORNIA, 342 U.S. 165, 174 (CONCURRING OPINION). 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

MERE FAILURE TO HAVE AN APPROPRIATE WARRANT FOR ARREST OR SEARCH,
WITHOUT AGGRAVATING CIRCUMSTANCES OF MISCONDUCT IN OBTAINING EVIDENCE,
INVALIDATES A FEDERAL CONVICTION HELPED BY SUCH AN UNREASONABLE SEARCH
AND SEIZURE.  SUCH WAS THE CONSTRUCTION PLACED UPON THE FOURTH
AMENDMENT BY WEEKS V. UNITED STATES, 232 U.S. 383.  BUT WOLF V.
COLORADO, 338 U.S. 25, HELD THAT THE RULE OF THE WEEKS CASE WAS NOT TO
BE DEEMED PART OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
AND HENCE WAS NOT BINDING UPON THE STATES.  STILL MORE RECENTLY,
HOWEVER, IN ROCHIN V. CALIFORNIA, 342 U.S. 165, THE COURT HELD THAT
"STOMACH PUMPING" TO OBTAIN MORPHINE CAPSULES, LATER USED AS EVIDENCE
IN A TRIAL, WAS OFFENSIVE TO PREVAILING NOTIONS OF FAIRNESS IN THE
CONDUCT OF A PROSECUTION AND THEREFORE INVALIDATED A RESULTING
CONVICTION AS CONTRARY TO THE DUE PROCESS CLAUSE. 

THE COMPREHENDING PRINCIPLE OF THESE TWO CASES IS AT THE HEART OF
"DUE PROCESS."  THE JUDICIAL ENFORCEMENT OF THE DUE PROCESS CLAUSE IS
THE VERY ANTITHESIS OF A PROCRUSTEAN RULE.  IN ITS FIRST FULL-DRESS
DISCUSSION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THE
COURT DEFINED THE NATURE OF THE PROBLEM AS A "GRADUAL PROCESS OF
JUDICIAL INCLUSION AND EXCLUSION, AS THE CASES PRESENTED FOR DECISION
SHALL REQUIRE, WITH THE REASONING ON WHICH SUCH DECISIONS MAY BE
FOUNDED."  DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 104.  THE SERIES OF
CASES WHEREBY, IN THE LIGHT OF THIS ATTITUDE, THE SCOPE OF THE DUE
PROCESS CLAUSE HAS BEEN UNFOLDED IS THE MOST STRIKING, BECAUSE THE
LIVELIEST, MANIFESTATION OF THE WIDE AND DEEP AREAS OF LAW IN WHICH
ADJUDICATION "DEPENDS UPON DIFFERENCES OF DEGREE.  THE WHOLE LAW DOES
SO AS SOON AS IT IS CIVILIZED."  HOLMES, J., CONCURRING IN LEROY FIBRE
CO. V. CHICAGO, M. & ST. P.R. CO., 232 U.S. 340, 354.  IT IS ESPECIALLY
TRUE OF THE CONCEPT OF DUE PROCESS THAT BETWEEN THE DIFFERENCES OF
DEGREE WHICH THAT INHERENTLY UNDEFINABLE CONCEPT ENTAILS "AND THE
SIMPLE UNIVERSALITY OF THE RULES IN THE TWELVE TABLES OR THE LEGES
BARBARORUM, THERE LIES THE CULTURE OF TWO THOUSAND YEARS."  IBID. 

IN THE WOLF CASE, THE COURT REJECTED ONE ABSOLUTE.  IN ROCHIN, IT
REJECTED ANOTHER. 

IN HOLDING THAT NOT ALL CONDUCT WHICH BY FEDERAL LAW IS AN
UNREASONABLE SEARCH AND SEIZURE VITIATES A CONVICTION IN CONNECTION
WITH WHICH IT TRANSPIRES, WOLF DID NOT AND COULD NOT DECIDE THAT AS
LONG AS RELEVANT EVIDENCE ADEQUATELY SUPPORTS A CONVICTION, IT IS
IMMATERIAL HOW SUCH EVIDENCE WAS ACQUIRED.  FOR THE EXACT HOLDING OF
THAT CASE IS DEFINED BY THE QUESTION TO WHICH THE OPINION ADDRESSED
ITSELF:  "DOES A CONVICTION BY A STATE COURT FOR A STATE OFFENSE DENY
THE 'DUE PROCESS OF LAW' REQUIRED BY THE FOURTEENTH AMENDMENT, SOLELY
BECAUSE EVIDENCE THAT WAS ADMITTED AT THE TRIAL WAS OBTAINED UNDER
CIRCUMSTANCES WHICH WOULD HAVE RENDERED IT INADMISSIBLE IN A
PROSECUTION FOR VIOLATION OF A FEDERAL LAW IN A COURT OF THE UNITED
STATES BECAUSE THERE DEEMED TO BE AN INFRACTION OF THE FOURTH AMENDMENT
AS APPLIED IN WEEKS V. UNITED STATES, 232 U.S. 383?"  THUS, WOLF DID
NOT CHANGE PRIOR APPLICATIONS OF THE REQUIREMENTS OF DUE PROCESS,
WHEREBY THIS COURT CONSIDERED THE WHOLE COURSE OF EVENTS BY WHICH A
CONVICTION WAS OBTAINED AND WAS NOT RESTRICTED TO CONSIDERATION OF THE
TRUSTWORTHINESS OF THE EVIDENCE. 

ROCHIN DECIDED THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT DOES NOT LEAVE STATES FREE IN THEIR PROSECUTIONS FOR CRIME. 
THE CLAUSE PUTS LIMITS ON THE WIDE DISCRETION OF A STATE IN THE PROCESS
OF ENFORCING ITS CRIMINAL LAW.  THE HOLDING OF THE CASE IS THAT A STATE
CANNOT RESORT TO METHODS THAT OFFEND CIVILIZED STANDARDS OF DECENCY AND
FAIRNESS.  THE CONVICTION IN THE ROCHIN CASE WAS FOUND TO OFFEND DUE
PROCESS NOT BECAUSE EVIDENCE HAD BEEN OBTAINED THROUGH AN UNAUTHORIZED
SEARCH AND SEIZURE OR WAS THE FRUIT OF COMPULSORY SELF-INCRIMINATION. 
NEITHER OF THESE CONCEPTS, RELEVANT TO FEDERAL PROSECUTIONS, WAS
INVOKED BY THE COURT IN ROCHIN, SO OF COURSE THE WOLF CASE WAS NOT
MENTIONED.  WHILE THERE IS IN THE CASE BEFORE US, AS THERE WAS IN
ROCHIN, AN ELEMENT OF UNREASONABLE SEARCH AND SEIZURE, WHAT IS DECISIVE
HERE, AS IN ROCHIN, IS ADDITIONAL AGGRAVATING CONDUCT WHICH THE COURT
FINDS REPULSIVE. 

THUS, THE BASIS ON WHICH THIS CASE SHOULD BE ADJUDICATED IS LAID DOWN
IN ROCHIN:  "REGARD FOR THE REQUIREMENTS OF THE DUE PROCESS CLAUSE
'INESCAPABLY IMPOSES UPON THIS COURT AN EXERCISE OF JUDGMENT UPON THE
WHOLE COURSE OF THE PROCEEDINGS RESULTING IN A CONVICTION IN ORDER TO
ASCERTAIN WHETHER THEY OFFEND THOSE CANONS OF DECENCY AND FAIRNESS
WHICH EXPRESS THE NOTIONS OF JUSTICE OF ENGLISH-SPEAKING PEOPLES EVEN
TOWARD THOSE CHARGED WITH THE MOST HEINOUS OFFENSES.'"  342 U.S., AT
169, QUOTING FROM MALINSKI V. NEW YORK, 324 U.S. 401, AT 416-417. 

THIS BRINGS US TO THE SPECIFIC CIRCUMSTANCES OF THIS CASE.  THIS IS A
SUMMARY OF THE CONDUCT OF THE POLICE: 

(1)  THEY SECRETLY MADE A KEY TO THE IRVINES' FRONT DOOR. 

(2)  BY BORING A HOLE IN THE ROOF OF THE HOUSE AND USING THE KEY THEY
HAD MADE TO ENTER, THEY INSTALLED A SECRET MICROPHONE IN THE IRVINE
HOUSE WITH A LISTENING POST IN A NEIGHBORING GARAGE WHERE OFFICERS
LISTENED IN RELAYS. 

(3)  USING THEIR KEY, THEY ENTERED THE HOUSE TWICE AGAIN TO MOVE THE
MICROPHONE IN ORDER TO CUT OUT INTERFERENCE FROM A FLUORESCENT LAMP. 
THE FIRST TIME THEY MOVED IT INTO MR. AND MRS. IRVINE'S BEDROOM, AND
LATER INTO THEIR BEDROOM CLOSET. 

(4)  USING THEIR KEY, THEY ENTERED THE HOUSE ON THE NIGHT OF THE
ARREST AND IN THE COURSE OF THE ARREST MADE A SEARCH FOR WHICH THEY HAD
NO WARRANT. 

THERE WAS LACKING HERE PHYSICAL VIOLENCE, EVEN TO THE RESTRICTED
EXTENT EMPLOYED IN ROCHIN.  WE HAVE HERE, HOWEVER, A MORE POWERFUL AND
OFFENSIVE CONTROL OVER THE IRVINES' LIFE THAN A SINGLE, LIMITED
PHYSICAL TRESPASS.  CERTAINLY THE CONDUCT OF THE POLICE HERE WENT FAR
BEYOND A BARE SEARCH AND SEIZURE.  THE POLICE DEVISED MEANS TO HEAR
EVERY WORD THAT WAS SAID IN THE IRVINE HOUSEHOLD FOR MORE THAN A
MONTH.  THOSE AFFIRMING THE CONVICTION FIND THAT THIS CONDUCT, IN ITS
ENTIRETY, IS "ALMOST INCREDIBLE IF IT WERE NOT ADMITTED."  SURELY THE
COURT DOES NOT PROPOSE TO ANNOUNCE A NEW ABSOLUTE, NAMELY, THAT EVEN
THE MOST REPREHENSIBLE MEANS FOR SECURING A CONVICTION WILL NOT TAINT A
VERDICT SO LONG AS THE BODY OF THE ACCUSED WAS NOT TOUCHED BY STATE
OFFICIALS.  CONSIDERING THE PROGRESS THAT SCIENTIFIC DEVICES ARE MAKING
IN EXTRACTING EVIDENCE WITHOUT VIOLENCE OR BODILY HARM, SATISFACTION OF
DUE PROCESS WOULD DEPEND ON THE ASTUTENESS AND SUBTLETY WITH WHICH THE
POLICE ENGAGE IN OFFENSIVE PRACTICES AND DRASTICALLY INVADE PRIVACY
WITHOUT AUTHORITY OF LAW.  IN WORDS THAT SEEM TOO PROPHETIC OF THIS
CASE, IT HAS BEEN SAID THAT "DISCOVERY AND INVENTION HAVE MADE IT
POSSIBLE FOR THE GOVERNMENT, BY MEANS FAR MORE EFFECTIVE THAN
STRETCHING UPON THE RACK, TO OBTAIN DISCLOSURE IN COURT OF WHAT IS
WHISPERED IN THE CLOSET."  BRANDEIS, J., DISSENTING IN OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 473. 

THE UNDERLYING REASONING OF ROCHIN REJECTED THE NOTION THAT STATES
MAY SECURE A CONVICTION BY ANY FORM OF SKULDUGGERY SO LONG AS IT DOES
NOT INVOLVE PHYSICAL VIOLENCE.  THE CASES IN WHICH COERCIVE OR PHYSICAL
INFRINGEMENTS OF THE DIGNITY AND PRIVACY OF THE INDIVIDUAL WERE
INVOLVED WERE NOT DEEMED "SPORTS IN OUR CONSTITUTIONAL LAW BUT
APPLICATIONS OF A GENERAL PRINCIPLE.  THEY ARE ONLY INSTANCES OF THE
GENERAL REQUIREMENT THAT STATES IN THEIR PROSECUTIONS RESPECT CERTAIN
DECENCIES OF CIVILIZED CONDUCT.  DUE PROCESS OF LAW, AS A HISTORIC AND
GENERATIVE PRINCIPLE, PRECLUDES DEFINING, AND THEREBY CONFINING, THESE
STANDARDS OF CONDUCT MORE PRECISELY THAN TO SAY THAT CONVICTIONS CANNOT
BE BROUGHT ABOUT BY METHODS THAT OFFEND 'A SENSE OF JUSTICE.'"  342
U.S., AT 173. 

SINCE DUE PROCESS IS NOT A MECHANICAL YARDSTICK, IT DOES NOT AFFORD
MECHANICAL ANSWERS.  IN APPLYING THE DUE PROCESS CLAUSE JUDICIAL
JUDGMENT IS INVOLVED IN AN EMPIRIC PROCESS IN THE SENSE THAT RESULTS
ARE NOT PREDETERMINED OR MECHANICALLY ASCERTAINABLE.  BUT THAT IS A
VERY DIFFERENT THING FROM CONCEIVING THE RESULTS AS AD HOC DECISIONS IN
THE OPPROBRIOUS SENSE OF AD HOC.  EMPIRICISM IMPLIES JUDGMENT UPON
VARIANT SITUATIONS BY THE WISDOM OF EXPERIENCE.  AD HOCNESS IN
ADJUDICATION MEANS TREATING A PARTICULAR CASE BY ITSELF AND NOT IN
RELATION TO THE MEANING OF A COURSE OF DECISIONS AND THE GUIDES THEY
SERVE FOR THE FUTURE.  THERE IS ALL THE DIFFERENCE IN THE WORLD BETWEEN
DISPOSING OF A CASE AS THOUGH IT WERE A DISCRETE INSTANCE AND
RECOGNIZING IT AS PART OF THE PROCESS OF JUDGMENT, TAKING ITS PLACE IN
RELATION TO WHAT WENT BEFORE AND FURTHER CUTTING A CHANNEL FOR WHAT IS
TO COME. 

THE EFFORT TO IMPRISON DUE PROCESS WITHIN TIDY CATEGORIES
MISCONCEIVES ITS NATURE AND IS A FUTILE ENDEAVOR TO SAVE THE JUDICIAL
FUNCTION FROM THE PAINS OF JUDICIAL JUDGMENT.  IT IS PERTINENT TO
RECALL HOW THE COURT DEALT WITH THIS CRAVING FOR UNATTAINABLE CERTAINTY
IN THE ROCHIN CASE: 

"THE VAGUE CONTOURS OF THE DUE PROCESS CLAUSE DO NOT LEAVE JUDGES AT
LARGE.  WE MAY NOT DRAW ON OUR MERELY PERSONAL AND PRIVATE NOTIONS AND
DISREGARD THE LIMITS THAT BIND JUDGES IN THEIR JUDICIAL FUNCTION.  EVEN
THOUGH THE CONCEPT OF DUE PROCESS OF LAW IS NOT FINAL AND FIXED, THESE
LIMITS ARE DERIVED FROM CONSIDERATIONS THAT ARE FUSED IN THE WHOLE
NATURE OF OUR JUDICIAL PROCESS.  SEE CARDOZO, THE NATURE OF THE
JUDICIAL PROCESS; THE GROWTH OF THE LAW; THE PARADOXES OF LEGAL
SCIENCE.  THESE ARE CONSIDERATIONS DEEPLY ROOTED IN REASON AND IN THE
COMPELLING TRADITIONS OF THE LEGAL PROFESSION.  THE DUE PROCESS CLAUSE
PLACES UPON THIS COURT THE DUTY OF EXERCISING A JUDGMENT, WITHIN THE
NARROW CONFINES OF JUDICIAL POWER IN REVIEWING STATE CONVICTIONS, UPON
INTERESTS OF SOCIETY PUSHING IN OPPOSITE DIRECTIONS."  342 U.S., AT 170
171. 

NOR CAN WE DISPOSE OF THIS CASE BY SATISFYING OURSELVES THAT THE
DEFENDANT'S GUILT WAS PROVEN BY TRUSTWORTHY EVIDENCE AND THEN FINDING,
OR DEVISING, OTHER MEANS WHEREBY THE POLICE MAY BE DISCOURAGED FROM
USING ILLEGAL METHODS TO ACQUIRE SUCH EVIDENCE. 

THIS COURT HAS REJECTED THE NOTION THAT BECAUSE A CONVICTION IS
ESTABLISHED ON INCONTESTABLE PROOF OF GUILT IT MAY STAND, NO MATTER HOW
THE PROOF WAS SECURED.  OBSERVANCE OF DUE PROCESS HAS TO DO NOT WITH
QUESTIONS OF GUILT OR INNOCENCE BUT THE MODE BY WHICH GUILT IS
ASCERTAINED.  MERE ERRORS OF LAW IN THE CONDUCT OF STATE TRIALS AFFORD
NO BASIS FOR RELIEF UNDER THE FOURTEENTH AMENDMENT, AND A WIDE SWATH OF
DISCRETION MUST BE LEFT TO THE STATE COURTS IN SUCH MATTERS.  BUT WHEN
A CONVICTION IS SECURED BY METHODS WHICH OFFEND ELEMENTARY STANDARDS OF
JUSTICE, THE VICTIM OF SUCH METHODS MAY INVOKE THE PROTECTION OF THE
FOURTEENTH AMENDMENT BECAUSE THAT AMENDMENT GUARANTEES HIM A TRIAL
FUNDAMENTALLY FAIR IN THE SENSE IN WHICH THAT IDEA IS INCORPORATED IN
DUE PROCESS.  IF, AS IN ROCHIN, "ON THE FACTS OF THIS CASE THE
CONVICTION OF THE PETITIONER HAS BEEN OBTAINED BY METHODS THAT OFFEND
THE DUE PROCESS CLAUSE," 342 U.S., AT 174, IT IS NO ANSWER TO SAY THAT
THE OFFENDING POLICEMEN AND PROSECUTORS WHO UTILIZE OUTRAGEOUS METHODS
SHOULD BE PUNISHED FOR THEIR MISCONDUCT.  (FN1) 

OF COURSE IT IS A LOSS TO THE COMMUNITY WHEN A CONVICTION IS
OVERTURNED BECAUSE THE INDEFENSIBLE MEANS BY WHICH IT WAS OBTAINED
CANNOT BE SQUARED WITH THE COMMANDS OF DUE PROCESS.  A NEW TRIAL IS
NECESSITATED, AND BY REASON OF THE EXCLUSION OF EVIDENCE DERIVED FROM
THE UNFAIR ASPECTS OF THE PRIOR PROSECUTION A GUILTY DEFENDANT MAY
ESCAPE.  BUT THE PEOPLE CAN AVOID SUCH MISCARRIAGES OF JUSTICE.  A
STURDY, SELF-RESPECTING DEMOCRATIC COMMUNITY SHOULD NOT PUT UP WITH
LAWLESS POLICE AND PROSECUTORS.  "OUR PEOPLE MAY TOLERATE MANY MISTAKES
OF BOTH INTENT AND PERFORMANCE, BUT, WITH UNERRING INSTINCT, THEY KNOW
THAT WHEN ANY PERSON IS INTENTIONALLY DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS THOSE RESPONSIBLE HAVE COMMITTED NO ORDINARY OFFENSE.  A CRIME
OF THIS NATURE, IF SUBTLY ENCOURAGED BY FAILURE TO CONDEMN AND PUNISH,
CERTAINLY LEADS DOWN THE ROAD TO TOTALITARIANISM."  (FN2) 

FN1  THAT THE PROSECUTION IN THIS CASE, WITH THE SANCTION OF THE
COURTS, FLOUTED A LEGISLATIVELY DECLARED PHILOSOPHY AGAINST SUCH
MISCREANT CONDUCT AND MADE IT A POLICY MERELY ON PAPER, DOES NOT MAKE
THE CONDUCT ANY THE LESS A DISREGARD OF DUE PROCESS.  CF.  ROCHIN V.
CALIFORNIA, SUPRA, AT 167. 

FN2  STATEMENT BY DIRECTOR J. EDGAR HOOVER OF THE FEDERAL BUREAU OF
INVESTIGATION IN FBI LAW ENFORCEMENT BULLETIN, SEPTEMBER 1952, P. 1. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE SEARCH AND SEIZURE CONDUCTED IN THIS CASE SMACK OF THE POLICE
STATE, NOT THE FREE AMERICA THE BILL OF RIGHTS ENVISAGED. 

THE POLICE AND THEIR AGENTS FIRST MADE A KEY TO THE HOME OF A
SUSPECT.  THEN THEY BORED A HOLE IN THE ROOF OF HIS HOUSE.  USING THE
KEY THEY ENTERED THE HOUSE, INSTALLED A MICROPHONE, AND ATTACHED IT TO
A WIRE WHICH RAN THROUGH THE HOLE IN THE ROOF TO A NEARBY GARAGE WHERE
OFFICERS LISTENED IN RELAYS.  TWICE MORE THEY USED THE KEY TO ENTER THE
HOUSE IN ORDER TO ADJUST THE MICROPHONE.  FIRST THEY MOVED IT INTO THE
BEDROOM WHERE THE SUSPECT AND HIS WIFE SLEPT.  NEXT, THEY PUT THE
MICROPHONE INTO THE BEDROOM CLOSET.  THEN THEY USED THE KEY TO ENTER
THE HOUSE TO ARREST THE SUSPECT.  THEY HAD NO SEARCH WARRANT; BUT THEY
RANSACKED THE HOUSE.  MOREOVER, THEY EXAMINED THE SUSPECT'S HANDS UNDER
AN ULTRAVIOLET LAMP TO SEE IF HE HAD HANDLED BETTING SLIPS WHICH THEY
HAD EARLIER IMPREGNATED WITH FLUORESCENT POWDER.    THE EVIDENCE SO
OBTAINED WAS USED BY CALIFORNIA TO SEND THE SUSPECT, PETITIONER HERE,
TO PRISON. 

WHAT TRANSPIRED HERE WAS AS REVOLTING AS THE ABUSES ARISING OUT OF
THE WRITS OF ASSISTANCE AGAINST WHICH JAMES OTIS COMPLAINED.  OTIS IN
HIS SPEECH AGAINST THE WRITS (FN1) HAD THIS TO SAY: 

"NOW ONE OF THE MOST ESSENTIAL BRANCHES OF ENGLISH LIBERTY IS THE
FREEDOM OF ONE'S HOUSE.  A MAN'S HOUSE IS HIS CASTLE; AND WHILST HE IS
QUIET, HE IS AS WELL GUARDED AS A PRINCE IN HIS CASTLE.  THIS WRIT, IF
IT SHOULD BE DECLARED LEGAL, WOULD TOTALLY ANNIHILATE THIS PRIVILEGE. 
CUSTOM-HOUSE OFFICERS MAY ENTER OUR HOUSES WHEN THEY PLEASE; WE ARE
COMMANDED TO PERMIT THEIR ENTRY.  THEIR MENIAL SERVANTS MAY ENTER, MAY
BREAK LOCKS, BARS, AND EVERY THING IN THEIR WAY:  AND WHETHER THEY
BREAK THROUGH MALICE OR REVENGE, NO MAN, NO COURT, CAN INQUIRE.  BARE
SUSPICION WITHOUT OATH IS SUFFICIENT." 

IN THOSE DAYS COURTS PUT THEIR SANCTION BEHIND THE UNLAWFUL INVASION
OF PRIVACY BY ISSUING THE GENERAL WARRANT THAT PERMITTED UNLIMITED
SEARCHES.  THERE IS NO ESSENTIAL DIFFERENCE BETWEEN THAT AND THE ACTION
WE TAKE TODAY.  TODAY WE THROW THE WEIGHT OF THE GOVERNMENT ON THE SIDE
OF THE LAWLESS SEARCH BY AFFIRMING A CONVICTION BASED ON EVIDENCE
OBTAINED BY IT.  TODAY WE COMPOUND THE GRIEVANCE AGAINST WHICH OTIS
COMPLAINED.  NOT ONLY IS PRIVACY INVADED.  THE LAWLESS INVASION IS
OFFICIALLY APPROVED AS THE MEANS OF SENDING A MAN TO PRISON. 

I PROTEST AGAINST THIS USE OF UNCONSTITUTIONAL EVIDENCE.  IT IS NO
ANSWER THAT THE MAN IS DOUBTLESS GUILTY.  THE BILL OF RIGHTS WAS
DESIGNED TO PROTECT EVERY ACCUSED AGAINST PRACTICES OF THE POLICE WHICH
HISTORY SHOWED WERE OPPRESSIVE OF LIBERTY.  THE GUARANTEE AGAINST
UNREASONABLE SEARCHES AND SEIZURES CONTAINED IN THE FOURTH AMENDMENT
WAS ONE OF THOSE SAFEGUARDS.  IN 1914 A UNANIMOUS COURT DECIDED THAT
OFFICERS WHO OBTAINED EVIDENCE IN VIOLATION OF THAT GUARANTEE COULD NOT
USE IT IN PROSECUTIONS IN THE FEDERAL COURTS.  WEEKS V. UNITED STATES,
232 U.S. 383.  LAWLESS ACTION OF THE FEDERAL POLICE, IT SAID, "SHOULD
FIND NO SANCTION IN THE JUDGMENTS OF THE COURTS  ...  ."  ID., P. 392. 

THE DEPARTURE FROM THAT PRINCIPLE WHICH THE COURT MADE IN 1949 IN
WOLF V. COLORADO, 338 U.S. 25, IS PART OF THE DETERIORATION WHICH CIVIL
LIBERTIES HAVE SUFFERED IN RECENT YEARS.  IN THAT CASE THE COURT HELD
THAT EVIDENCE OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT, THOUGH
INADMISSIBLE IN FEDERAL PROSECUTIONS, COULD BE USED IN PROSECUTIONS IN
THE STATE COURTS.  MR. JUSTICE MURPHY, DISSENTING, POINTED OUT THE
PERIL OF THAT STEP, ID., P. 44: 

"THE CONCLUSION IS INESCAPABLE THAT BUT ONE REMEDY EXISTS TO DETER
VIOLATIONS OF THE SEARCH AND SEIZURE CLAUSE.  THAT IS THE RULE WHICH
EXCLUDES ILLEGALLY OBTAINED EVIDENCE.  ONLY BY EXCLUSION CAN WE IMPRESS
UPON THE ZEALOUS PROSECUTOR THAT VIOLATION OF THE CONSTITUTION WILL DO
HIM NO GOOD.  AND ONLY WHEN THAT POINT IS DRIVEN HOME CAN THE
PROSECUTOR BE EXPECTED TO EMPHASIZE THE IMPORTANCE OF OBSERVING
CONSTITUTIONAL DEMANDS IN HIS INSTRUCTIONS TO THE POLICE." 

EXCLUSION OF EVIDENCE IS INDEED THE ONLY EFFECTIVE SANCTION.  IF THE
EVIDENCE CAN BE USED, NO MATTER HOW LAWLESS THE SEARCH, THE PROTECTION
OF THE FOURTH AMENDMENT, TO USE THE WORDS OF THE COURT IN THE WEEKS
CASE, "MIGHT AS WELL BE STRICKEN FROM THE CONSTITUTION."  232 U.S., AT
393. 

THE SUGGESTION THAT THE REMEDY FOR LAWLESS CONDUCT BY THE LOCAL
POLICE IS THROUGH FEDERAL PROSECUTION UNDER THE CIVIL RIGHTS LAWS
RELEGATES CONSTITUTIONAL RIGHTS UNDER THE FOURTH AMENDMENT TO A LOWLY
STATUS.  AN ALREADY OVERBURDENED DEPARTMENT OF JUSTICE, BUSILY ENGAGED
IN LAW ENFORCEMENT, CANNOT BE EXPECTED TO DEVOTE ITS ENERGIES TO
SUPERVISING LOCAL POLICE ACTIVITIES AND PROSECUTING POLICE OFFICERS,
EXCEPT IN RARE AND OCCASIONAL INSTANCES.  (FN2)  AND THE HOSTILITY
WHICH SUCH PROSECUTIONS HAVE RECEIVED HERE (SEE SCREWS V. UNITED
STATES, 325 U.S. 91, ESPECIALLY PP. 138 ET SEQ.) HARDLY ENCOURAGES
PUTTING THE FEDERAL PROSECUTOR ON THE TRACK OF STATE OFFICIALS WHO TAKE
UNCONSTITUTIONAL SHORT CUTS IN ENFORCING STATE LAWS.  (FN3) 

IF UNREASONABLE SEARCHES AND SEIZURES THAT VIOLATE THE PRIVACY WHICH
THE FOURTH AMENDMENT PROTECTS ARE TO BE OUTLAWED, THIS IS THE TIME AND
THE OCCASION TO DO IT.  IF POLICE OFFICERS KNOW THAT EVIDENCE OBTAINED
BY THEIR UNLAWFUL ACTS CANNOT BE USED IN THE COURTS, THEY WILL CLEAN
THEIR OWN HOUSES AND PUT AN END TO THIS KIND OF ACTION.  BUT AS LONG AS
COURTS WILL RECEIVE THE EVIDENCE, THE POLICE WILL ACT LAWLESSLY AND THE
RIGHTS OF THE INDIVIDUAL WILL SUFFER.  WE SHOULD THROW OUR WEIGHT ON
THE SIDE OF THE CITIZEN AND AGAINST THE LAWLESS POLICE.  WE SHOULD BE
ALERT TO SEE THAT NO UNCONSTITUTIONAL EVIDENCE IS USED TO CONVICT ANY
PERSON IN AMERICA. 

FN1  TUDOR, LIFE OF JAMES OTIS (1823), PP. 66-67. 

FN2  FOR AN ANALYSIS OF THE CIVIL RIGHTS SUITS INSTITUTED BY THE
DEPARTMENT OF JUSTICE, SEE THE APPENDIX TO THIS OPINION. 

FN3  THE CURRENT HOSTILITY TOWARDS FEDERAL ACTIONS - BOTH CRIMINAL
AND CIVIL - UNDER THE CIVIL RIGHTS LAWS IS FURTHER EVIDENCED BY UNITED
STATES V. WILLIAMS, 341 U.S. 70; TENNEY V. BRANDHOVE, 341 U.S. 367;
COLLINS V. HARDYMAN, 341 U.S. 651; WHITTINGTON V. JOHNSTON, 201 F.2D
810, CERT. DENIED, 346 U.S. 867; FRANCIS V. CRAFTS, 203 F.2D 809, CERT.
DENIED, 346 U.S. 835. 

         APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. 

MR. JUSTICE MURPHY, WHEN ATTORNEY GENERAL, WAS RESPONSIBLE FOR THE
CREATION OF THE CIVIL RIGHTS SECTION IN THE DEPARTMENT OF JUSTICE. 
THAT WAS ON FEBRUARY 3, 1939.  IN 1947 MR. JUSTICE CLARK, THEN ATTORNEY
GENERAL, REPORTED THAT THE SECTION HAD IN THE EIGHT YEARS OF ITS
EXISTENCE INVESTIGATED NEARLY 850 COMPLAINTS, INSTITUTED PROSECUTIONS
IN 178 CASES, AND OBTAINED THE CONVICTION OF MORE THAN 130 DEFENDANTS. 
CLARK, A FEDERAL PROSECUTOR LOOKS AT THE CIVIL RIGHTS STATUTES, 47 COL.
L. REV. 175, 181.  SEE ALSO REPORT OF THE PRESIDENT'S COMMITTEE ON
CIVIL RIGHTS: TO SECURE THESE RIGHTS (1947), PP. 114 ET SEQ. 

A MORE RECENT ACCOUNT OF THE WORK OF THE CIVIL RIGHTS SECTION WILL BE
FOUND IN PUTZEL, FEDERAL CIVIL RIGHTS ENFORCEMENT:  A CURRENT
APPRAISAL, 99 U. OF PA. L. REV. 439 (1951).  IT IS THERE STATED THAT ON
THE AVERAGE 20 CIVIL RIGHTS CASES ARE PROSECUTED A YEAR, ACQUITTALS AND
CONVICTIONS BEING ABOUT EQUALLY DIVIDED.  ID., P. 449, N. 43.  THESE
FIGURES ARE CONFIRMED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS.  RECORDS AVAILABLE IN THAT OFFICE SHOW THE FOLLOWING NUMBER OF
CIVIL RIGHTS PROSECUTIONS FILED IN THE DISTRICT COURTS IN THE YEARS
SINCE 1947: 

FISCAL YEAR            1947     1948     1949     1950     1951
1952     1953 

TOTAL CASES             10       13       22  18       16       15
29 

TOTAL DEFENDANTS        26      53       66       72       69
49       92 

MORE DETAILED FIGURES ARE AVAILABLE FOR THE PAST THREE FISCAL YEARS. 
THE FOLLOWING TABLE SHOWS THE NUMBER OF DEFENDANTS WHO ACTUALLY WENT TO
TRIAL, THE DISPOSITION OF THEIR CASES, AND THE SENTENCES IMPOSED ON
THOSE WHO WERE CONVICTED: 

FISCAL YEAR                            1951     1952     1953 

TOTAL DEFENDANTS                              22       50       54 

NOT CONVICTED:  TOTAL                         11       20 45 

DISMISSED                                      4 2       18 

ACQUITTED BY COURT                  1 

ACQUITTED BY JURY        7       18       26 

CONVICTED:  TOTAL               11       30        9 

PLEAS OF GUILTY OR NOLO CONTENDERE             3       21        1 

CONVICTED BY COURT                                      5 

CONVICTED BY JURY                              8        4        8 

TYPE OF SENTENCE:  IMPRISONMENT TOTAL          7        4        8 

1-6 MONTHS  1 

6 MONTHS TO 1 YEAR, 1 DAY                      7          7 

MORE THAN 1 YEAR, 1 DAY         4 

TYPE OF SENTENCE:  PROBATION AND 

SUSPENDED SENTENCE                             2       20 

TYPE OF SENTENCE:  FINE ONLY                   2        6        1 

AVERAGE SENTENCE OF IMPRISONMENT 

(MONTHS)              10.9     16.5      9.4 

NOTE:  THESE FIGURES FROM THE ADMINISTRATIVE OFFICE INCLUDE ALL
PROSECUTIONS FILED AND CONDUCTED UNDER ALL OF THE SECTIONS OF THE
CRIMINAL CODE WHICH ARE USUALLY CALLED CIVIL RIGHTS SECTIONS, THAT IS,
18 U.S.C. SECS. 241-244.  USE OF SECS. 243 AND 244, HOWEVER, HAS BEEN
VERY RARE, SO THAT MOST OF THE FIGURES QUOTED INVOLVE PROSECUTIONS
UNDER EITHER SEC.  241 OR SEC. 242.  THE FIGURES SET OUT IN THE SECOND
TABLE DO NOT TAKE INTO ACCOUNT SUCH APPELLATE REVERSALS AS MAY HAVE
BEEN ENTERED, AND THEY INCLUDE ONLY THOSE POST-JUDGMENT MOTIONS IN THE
DISTRICT COURT WHICH WERE DISPOSED OF BEFORE THE END OF THE FISCAL YEAR
IN QUESTION. 

THE CODE PROVISIONS IN QUESTION READ AS FOLLOWS: 

"SEC. 241.  CONSPIRACY AGAINST RIGHTS OF CITIZENS. 

"IF TWO OR MORE PERSONS CONSPIRE TO INJURE, OPPRESS, THREATEN, OR
INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT
OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES, OR BECAUSE OF HIS HAVING SO EXERCISED THE SAME; OR: 

"IF TWO OR MORE PERSONS GO IN DISGUISE ON THE HIGHWAY, OR ON THE
PREMISES OF ANOTHER, WITH INTENT TO PREVENT OR HINDER HIS FREE EXERCISE
OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SO SECURED: 

"THEY SHALL BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN
TEN YEARS, OR BOTH. 

"SEC. 242.  DEPRIVATION OF RIGHTS UNDER COLOR OF LAW. 

"WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM, WILLFULLY SUBJECTS ANY INHABITANT OF ANY STATE, TERRITORY, OR
DISTRICT TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES
SECURED OR PROTECTED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES,
OR TO DIFFERENT PUNISHMENTS, PAINS, OR PENALTIES, ON ACCOUNT OF SUCH
INHABITANT BEING AN ALIEN, OR BY REASON OF HIS COLOR, OR RACE, THAN ARE
PRESCRIBED FOR THE PUNISHMENT OF CITIZENS, SHALL BE FINED NOT MORE THAN
$1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH. 

"SEC. 243.  EXCLUSION OF JURORS ON ACCOUNT OF RACE OR COLOR. 

"NO CITIZEN POSSESSING ALL OTHER QUALIFICATIONS WHICH ARE OR MAY BE
PRESCRIBED BY LAW SHALL BE DISQUALIFIED FOR SERVICE AS GRAND OR PETIT
JUROR IN ANY COURT OF THE UNITED STATES, OR OF ANY STATE ON ACCOUNT OF
RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE; AND WHOEVER, BEING AN
OFFICER OR OTHER PERSON CHARGED WITH ANY DUTY IN THE SELECTION OR
SUMMONING OF JURORS, EXCLUDES OR FAILS TO SUMMON ANY CITIZEN FOR SUCH
CAUSE, SHALL BE FINED NOT MORE THAN $5,000. 

"SEC. 244.  DISCRIMINATION AGAINST PERSON WEARING UNIFORM OF ARMED
FORCES. 

"WHOEVER, BEING A PROPRIETOR, MANAGER, OR EMPLOYEE OF A THEATER OR
OTHER PUBLIC PLACE OF ENTERTAINMENT OR AMUSEMENT IN THE DISTRICT OF
COLUMBIA, OR IN ANY TERRITORY, OR POSSESSION OF THE UNITED STATES,
CAUSES ANY PERSON WEARING THE UNIFORM OF ANY OF THE ARMED FORCES OF THE
UNITED STATES TO BE DISCRIMINATED AGAINST BECAUSE OF THAT UNIFORM,
SHALL BE FINED NOT MORE THAN $500." 
..END :













MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT 347 U.S. 157 


NO. 198.  ARGUED JANUARY 5-6, 1954 - DECIDED FEBRUARY 8, 1954 - 255
S.W.2D 535, REVERSED. 


1.  A TEXAS TAX ON THE OCCUPATION OF "GATHERING GAS," MEASURED BY THE
ENTIRE VOLUME OF GAS "TAKEN," AS APPLIED TO AN INTERSTATE NATURAL GAS
PIPELINE COMPANY, WHERE THE TAXABLE INCIDENCE IS THE TAKING OF GAS FROM
THE OUTLET OF AN INDEPENDENT GASOLINE PLANT WITHIN THE STATE FOR THE
PURPOSE OF IMMEDIATE INTERSTATE TRANSMISSION, HELD INVALID UNDER THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 161-170. 

(A)  THE VALIDITY OF THE TAX UNDER THE COMMERCE CLAUSE DEPENDS UPON
CONSIDERATIONS OF CONSTITUTIONAL POLICY HAVING REFERENCE TO THE
SUBSTANTIAL EFFECTS, ACTUAL OR POTENTIAL, OF THE TAX IN SUPPRESSING OR
UNDULY BURDENING INTERSTATE COMMERCE.  P. 164. 

(B)  A TAX IMPOSED ON A LOCAL ACTIVITY RELATED TO INTERSTATE COMMERCE
IS VALID ONLY IF THE LOCAL ACTIVITY IS NOT SUCH AN INTEGRAL PART OF THE
FLOW OF INTERSTATE COMMERCE THAT IT CANNOT REALISTICALLY BE SEPARATED
FROM IT.  P. 166. 

(C)  AS HERE APPLIED, THE STATE HAS DELAYED THE INCIDENCE OF THE TAX
BEYOND THE STEP WHERE PRODUCTION AND PROCESSING HAVE CEASED AND
TRANSMISSION IN INTERSTATE COMMERCE HAS BEGUN; SO THAT THE TAX HERE IS
NOT LEVIED ON THE CAPTURE OR PRODUCTION OF THE GAS, BUT RATHER ON ITS
TAKING INTO INTERSTATE COMMERCE AFTER PRODUCTION, GATHERING AND
PROCESSING.  UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165,
DISTINGUISHED.  PP. 166-169. 

(D)  VALIDATION OF THIS TAX WOULD PERMIT A MULTIPLE BURDEN UPON
INTERSTATE COMMERCE, FOR IF TEXAS MAY IMPOSE THIS "FIRST TAKING" TAX
MEASURED BY THE TOTAL VOLUME OF GAS SO TAKEN, THEN THE OTHER RECIPIENT
STATES WOULD HAVE AT LEAST EQUAL RIGHT TO TAX THE FIRST TAKING OR
"UNLOADING" FROM THE PIPELINE OF THE SAME GAS WHEN IT ARRIVES FOR
DISTRIBUTION; AND THUS IN EFFECT WOULD BE RESURRECTED THE CUSTOMS
BARRIERS THAT THE COMMERCE CLAUSE WAS DESIGNED TO ELIMINATE.  P. 170. 

2.  THE SUPREME COURT OF TEXAS "REFUSED" APPLICATIONS FOR WRITS OF
ERROR TO REVIEW A DECISION OF THE COURT OF CIVIL APPEALS WHICH UPHELD
THE VALIDITY OF A STATE STATUTE CHALLENGED AS VIOLATIVE OF THE FEDERAL
CONSTITUTION.  BY STATE STATUTE AND PROCEDURAL RULE, THE REFUSAL
SIGNIFIED THAT THE STATE SUPREME COURT DEEMED THE JUDGMENT OF THE COURT
OF CIVIL APPEALS CORRECT AND THAT THE PRINCIPLES OF LAW HAD BEEN
CORRECTLY DETERMINED.  HELD:  THE COURT OF CIVIL APPEALS WAS "THE
HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE HAD," WITHIN THE
MEANING OF 28 U.S.C. SEC. 1257, AND THE APPEALS TO THIS COURT WERE
PROPERLY FROM THE COURT OF CIVIL APPEALS AND NOT FROM THE SUPREME COURT
OF TEXAS.  PP. 159-160. 

3.  THE ISSUE OF THE VALIDITY OF THE TAX WAS PROPERLY RAISED IN THIS
CASE.  P. 165, N. 4. 

MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, COMPTROLLER OF PUBLIC
ACCOUNTS, ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, THIRD SUPREME
JUDICIAL DISTRICT.* 

*TOGETHER WITH NO. 200, PANHANDLE EASTERN PIPE LINE CO. V. CALVERT,
COMPTROLLER OF PUBLIC ACCOUNTS, ET AL., ON APPEAL FROM THE SAME COURT;
AND NO. 199, MICHIGAN-WISCONSIN PIPE LINE CO. V. CALVERT, COMPTROLLER
OF PUBLIC ACCOUNTS, ET AL., AND NO. 201, PANHANDLE EASTERN PIPE LINE
CO. V. CALVERT, COMPTROLLER OF PUBLIC ACCOUNTS, ET AL., BOTH ON APPEAL
FROM THE SUPREME COURT OF TEXAS. 

THE TEXAS COURT OF CIVIL APPEALS SUSTAINED THE VALIDITY OF A STATE
STATUTE CHALLENGED AS VIOLATIVE OF THE FEDERAL CONSTITUTION.  255
S.W.2D 535.  THE STATE SUPREME COURT REFUSED WRITS OF ERROR.  THE TWO
APPELLANTS EACH TOOK APPEALS FROM BOTH THE COURT OF CIVIL APPEALS AND
THE STATE SUPREME COURT.  HERE THE APPEALS FROM THE STATE SUPREME COURT
ARE DISMISSED AND THE JUDGMENTS OF THE COURT OF CIVIL APPEALS ARE
REVERSED, PP. 160, 170. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS, TWO NATURAL GAS PIPELINE COMPANIES, BROUGHT SEPARATE
SUITS AGAINST TEXAS STATE OFFICIALS, APPELLEES HERE, IN A STATE
DISTRICT COURT, SEEKING A DETERMINATION THAT A TEXAS TAX STATUTE AS
APPLIED TO APPELLANTS VIOLATES THE COMMERCE CLAUSE OF THE CONSTITUTION
OF THE UNITED STATES, AND SEEKING RECOVERY OF MONEY PAID UNDER PROTEST
IN COMPLIANCE WITH THE STATUTE.  THE DISTRICT COURT SUSTAINED
APPELLANTS' CONTENTIONS AND ENTERED JUDGMENT IN THEIR FAVOR.  THE COURT
OF CIVIL APPEALS REVERSED, HOLDING THAT THE TAX STATUTE AS APPLIED IS
CONSTITUTIONAL.  255 S.W.2D 535.  THE SUPREME COURT OF TEXAS "REFUSED"
APPELLANTS' APPLICATIONS FOR WRITS OF ERROR. 

BY STATE STATUTE AND PROCEDURAL RULE, THE DOCKET NOTATION "REFUSED"
IN DENYING APPLICATION FOR WRIT OF ERROR SIGNIFIES THAT THE STATE
SUPREME COURT DEEMS THE JUDGMENT OF THE COURT OF CIVIL APPEALS A
CORRECT ONE AND THE PRINCIPLES OF LAW DECLARED IN THE OPINION CORRECTLY
DETERMINED.  APPELLANTS WERE UNCERTAIN WHETHER APPEAL TO THIS COURT WAS
PROPERLY FROM THE COURT OF CIVIL APPEALS OR THE SUPREME COURT OF TEXAS,
AS "THE HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE HAD"
WITHIN THE MEANING OF 28 U.S.C. SEC.  1257.  HENCE EACH APPELLANT
APPEALED FROM EACH OF THE COURTS.  (FN1)  WE POSTPONED TO THE HEARING
OF THE CASES ON THE MERITS A DETERMINATION OF THE JURISDICTIONAL
QUESTION.  346 U.S. 805. 

WE THINK THAT APPEALS IN THESE CASES WERE PROPERLY FROM THE COURT OF
CIVIL APPEALS.  IN AMERICAN RAILWAY EXPRESS CO. V. LEVEE, 263 U.S. 19
(1923), THE SUPREME COURT OF LOUISIANA HAD REFUSED A WRIT OF CERTIORARI
TO THE STATE COURT OF APPEAL "FOR THE REASON THAT THE JUDGMENT IS
CORRECT."  MR. JUSTICE HOLMES, SPEAKING FOR A UNANIMOUS COURT, SAID: 

"  ...  UNDER THE CONSTITUTION OF THE STATE THE JURISDICTION OF THE
SUPREME COURT IS DISCRETIONARY  ...  AND ALTHOUGH IT WAS NECESSARY FOR
THE PETITIONER TO INVOKE THAT JURISDICTION IN ORDER TO MAKE IT CERTAIN
THAT THE CASE COULD GO NO FARTHER,  ...  WHEN THE JURISDICTION WAS
DECLINED THE COURT OF APPEAL WAS SHOWN TO BE THE HIGHEST COURT OF THE
STATE IN WHICH A DECISION COULD BE HAD.  ANOTHER SECTION OF THE ARTICLE
CITED REQUIRED THE SUPREME COURT TO GIVE ITS REASONS FOR REFUSING THE
WRIT, AND THEREFORE THE FACT THAT THE REASON HAPPENED TO BE AN OPINION
UPON THE MERITS RATHER THAN SOME MORE TECHNICAL CONSIDERATION, DID NOT
TAKE FROM THE REFUSAL ITS OSTENSIBLE CHARACTER OF DECLINING
JURISDICTION.  WESTERN UNION TELEGRAPH CO. V. CROVO, 220 U.S. 364,
366.  NORFOLK & SUBURBAN TURNPIKE CO. V. VIRGINIA, 225 U.S. 264, 269. 
OF COURSE THE LIMIT OF TIME FOR APPLYING TO THIS COURT WAS FROM THE
DATE WHEN THE WRIT OF CERTIORARI WAS REFUSED."  263 U.S., AT 20-21. 

IN LONE STAR GAS CO. V. TEXAS, 304 U.S. 224 (1938), WITH THE PRESENT
TEXAS PROCEDURAL PROVISIONS IN EFFECT, THIS COURT'S MANDATE ISSUED TO
THE COURT OF CIVIL APPEALS IN A CASE WHERE THE STATE SUPREME COURT HAD
"REFUSED" WRIT OF ERROR.  SEE ALSO UNITED PUBLIC SERVICE CO. V. TEXAS,
301 U.S. 667 (1937). 

ACCORDINGLY THE APPEALS IN NOS. 199 AND 201, FROM THE SUPREME COURT
OF TEXAS, ARE DISMISSED.  WE PROCEED TO CONSIDER NOS. 198 AND 200. 

THE QUESTION PRESENTED IS WHETHER THE COMMERCE CLAUSE IS INFRINGED BY
A TEXAS TAX ON THE OCCUPATION OF "GATHERING GAS," MEASURED BY THE
ENTIRE VOLUME OF GAS "TAKEN," AS APPLIED TO AN INTERSTATE NATURAL GAS
PIPELINE COMPANY, WHERE THE TAXABLE INCIDENCE IS THE TAKING OF GAS FROM
THE OUTLET OF AN INDEPENDENT GASOLINE PLANT WITHIN THE STATE FOR THE
PURPOSE OF IMMEDIATE INTERSTATE TRANSMISSION.  IN RELEVANT PART THE TAX
STATUTE (FN2) PROVIDES THAT "IN ADDITION TO ALL OTHER LICENSES AND
TAXES LEVIED AND ASSESSED IN THE STATE OF TEXAS, THERE IS HEREBY LEVIED
UPON EVERY PERSON ENGAGED IN GATHERING GAS PRODUCED IN THIS STATE, AN
OCCUPATION TAX FOR THE PRIVILEGE OF ENGAGING IN SUCH BUSINESS, AT THE
RATE OF 9/20 OF ONE CENT PER THOUSAND (1,000) CUBIC FEET OF GAS
GATHERED."  USING A BEGGARED DEFINITION OF THE TERM "GATHERING GAS,"
THE ACT FURTHER PROVIDES THAT "IN THE CASE OF GAS CONTAINING GASOLINE
OR LIQUID HYDROCARBONS THAT ARE REMOVED OR EXTRACTED AT A PLANT WITHIN
THE STATE BY SCRUBBING, ABSORPTION, COMPRESSION OR ANY OTHER PROCESS,
THE TERM 'GATHERING GAS' MEANS THE FIRST TAKING OR THE FIRST RETAINING
OF POSSESSION OF SUCH GAS FOR OTHER PROCESSING OR TRANSMISSION WHETHER
THROUGH A PIPELINE, EITHER COMMON CARRIER OR PRIVATE, OR OTHERWISE
AFTER SUCH GAS HAS PASSED THROUGH THE OUTLET OF SUCH PLANT."  IT ALSO
PROHIBITS THE "GATHERER" AS THEREIN DEFINED FROM SHIFTING THE BURDEN OF
THE TAX TO THE PRODUCER OF THE GAS, AND PROVIDES THAT THE TAX SHALL NOT
BE LEVIED AS TO GAS GATHERED FOR LOCAL CONSUMPTION IF DECLARED
UNCONSTITUTIONAL AS TO THAT GATHERED FOR INTERSTATE TRANSMISSION. 

MICHIGAN-WISCONSIN PIPE LINE COMPANY AND PANHANDLE EASTERN PIPE LINE
COMPANY, APPELLANTS, ARE DELAWARE CORPORATIONS AND ARE NATURAL GAS
COMPANIES HOLDING CERTIFICATES OF CONVENIENCE AND NECESSITY UNDER THE
NATURAL GAS ACT OF 1938 FOR THE TRANSPORTATION AND SALE IN INTERSTATE
COMMERCE OF NATURAL GAS.  THE NATURE OF THEIR ACTIVITIES HAS BEEN
STIPULATED. 

MICHIGAN-WISCONSIN HAS CONSTRUCTED A PIPELINE EXTENDING FROM TEXAS TO
MICHIGAN AND WISCONSIN.  AT POINTS IN THESE TWO STATES AND IN MISSOURI
AND IOWA IT SELLS GAS TO DISTRIBUTION COMPANIES WHICH SERVE MARKETS IN
THOSE AREAS.  (FN3)  IT SELLS NO GAS IN TEXAS.  THE COMPANY PRODUCES NO
GAS; IT PURCHASES ITS SUPPLY FROM PHILLIPS PETROLEUM COMPANY IN TEXAS,
UNDER A LONG-TERM CONTRACT.  PHILLIPS COLLECTS THE GAS FROM THE WELLS
AND PIPES IT TO A GASOLINE PLANT, WHERE CERTAIN LIQUEFIABLE
HYDROCARBONS, OXYGEN, SULPHUR, HYDROGEN SULPHIDE, DUST AND FOREIGN
SUBSTANCES ARE REMOVED PREPARATORY TO THE TRANSMISSION OF THE RESIDUE. 
AS THIS RESIDUE GAS LEAVES THE ABSORBERS, IT FLOWS THROUGH PIPES OWNED
BY PHILLIPS FOR A DISTANCE OF 300 YARDS TO THE OUTLET OF ITS GASOLINE
PLANT, AT THE BOUNDARY BETWEEN PROPERTY OF PHILLIPS AND PROPERTY OF
MICHIGAN-WISCONSIN.  PHILLIPS HAS INSTALLED GAS METERS IN ITS PIPES AT
THIS POINT.  THE GAS EMERGING FROM THE OUTLET FLOWS DIRECTLY INTO TWO
26-INCH PIPELINES OF MICHIGAN-WISCONSIN.  IT IS THIS "TAKING" THAT IS
MADE THE TAXABLE INCIDENCE OF THE STATUTE.  AFTER THE GAS HAS BEEN
TAKEN INTO THE MICHIGAN-WISCONSIN PIPES, IT FLOWS A DISTANCE OF
APPROXIMATELY 1,215 FEET TO A COMPRESSOR STATION OWNED AND OPERATED BY
MICHIGAN-WISCONSIN, AT WHICH STATION THE PRESSURE OF THE GAS IS RAISED
FROM ABOUT 200 POUNDS TO SOME 975 POUNDS TO FACILITATE MOVEMENT TO
DISTANT MARKETS.  IN THE COURSE OF ITS FLOW THROUGH THIS STATION THE
GAS IS COMPRESSED, COOLED, SCRUBBED AND DEHYDRATED AND THEN PASSES INTO
A 24-INCH PIPELINE AND THENCE TO MARKETS OUTSIDE TEXAS.  ADDITIONAL
MOTIVE POWER IS FURNISHED BY 15 OTHER COMPRESSOR STATIONS IN OTHER
STATES THROUGH WHICH THE GAS IS TRANSPORTED. 

THE ENTIRE MOVEMENT OF THE GAS, FROM PRODUCING WELLS THROUGH THE
PHILLIPS GASOLINE PLANT AND INTO THE MICHIGAN-WISCONSIN PIPELINE TO
CONSUMERS OUTSIDE TEXAS, IS A STEADY AND CONTINUOUS FLOW.  ALL OF
MICHIGAN-WISCONSIN'S GAS IS PURCHASED FROM PHILLIPS FOR TRANSPORTATION
TO POINTS OUTSIDE TEXAS, AND IS IN FACT SO TRANSPORTED. 

EXCLUSIVE OF THE TAX IN QUESTION, MICHIGAN-WISCONSIN PAYS AN AD
VALOREM TAX ON THE VALUE OF ALL ITS FACILITIES AND LEASES WITHIN THE
STATE.  THE STATE ALSO LEVIES ON PRODUCERS A TAX OF 5.72% OF THE VALUE
AT THE WELL OF ALL GAS PRODUCED IN THE STATE AND A SPECIAL TAX TO COVER
EXPENSES IN ENFORCING THE CONSERVATION AND PRORATION LAWS. 

THE APPELLEES PLACE MUCH EMPHASIS UPON THE FACT THAT TEXAS THROUGH
THESE CONSERVATION AND PRORATION MEASURES HAS AFFORDED GREAT BENEFITS
AND PROTECTION TO PIPELINE COMPANIES.  IT IS BEYOND QUESTION THAT THE
ENFORCEMENT OF THESE LAWS HAS BEEN NOT ONLY IN THE PUBLIC INTEREST BUT
TO THE COMMERCIAL ADVANTAGE OF THE INDUSTRY.  BUT, THOUGH THIS BE AN
APPEALING TRUTH, THESE BENEFITS ARE RELEVANT HERE ONLY TO SHOW THAT
ESSENTIAL REQUIREMENTS OF DUE PROCESS HAVE BEEN MET SUFFICIENTLY TO
JUSTIFY THE IMPOSITION OF ANY TAX ON THE INTERSTATE ACTIVITY.  NO
CHALLENGE IS MADE OF THE VALIDITY OF THE TAX UNDER THE DUE PROCESS
CLAUSE, THE APPELLANTS BASING THEIR OBJECTIONS ONLY ON THE COMMERCE
CLAUSE, AND WHEN WE PROCEED TO EXAMINE THE TAX UNDER THE LATTER ITS
VALIDITY "DEPENDS UPON OTHER CONSIDERATIONS OF CONSTITUTIONAL POLICY
HAVING REFERENCE TO THE SUBSTANTIAL EFFECTS, ACTUAL OR POTENTIAL, OF
THE PARTICULAR TAX IN SUPPRESSING OR BURDENING UNDULY THE COMMERCE." 
NIPPERT V. RICHMOND, 327 U.S. 416, 424 (1946).  WE PROCEED, THEREFORE,
TO DISCUSS ONLY THOSE RELEVANT FACTORS INVOLVED IN THE TESTING OF THE
TAX UNDER THE COMMERCE CLAUSE. 

THE TAX HERE ASSAILED APPLIES EQUALLY TO GAS MOVING IN INTRASTATE AND
INTERSTATE COMMERCE.  IT IS LEVIED IN ADDITION TO ALL OTHER LICENSES
AND TAXES AND IS DENOMINATED AN OCCUPATION TAX FOR THE PRIVILEGE OF
ENGAGING IN THE "GATHERING OF GAS."  OBVIOUSLY APPELLANTS ARE NOT
ENGAGED IN "GATHERING GAS" WITHIN THE MEANING OF THAT TERM IN ITS
ORDINARY USAGE; BUT THE TAX STATUTE GIVES THE TERM A TRANSCENDENT
SCOPE; AS TO APPELLANTS' OPERATIONS IT IS DEFINED AS "THE FIRST TAKING
...  OF POSSESSION OF SUCH GAS FOR OTHER PROCESSING  OR TRANSMISSION
...  AFTER SUCH GAS HAS PASSED THROUGH THE OUTLET" OF A GASOLINE
PLANT.  THE STATE APPELLATE COURT REALISTICALLY FOUND "THE TAXABLE
EVENT DESCRIBED BY THE STATUTE" TO BE "THE TAKING OR RETAINING OF THE
GAS AT THE GASOLINE PLANT OUTLET ... ."  IT THOUGHT THAT SINCE THIS
LOCAL ACTIVITY WAS NOT SUBJECT TO REPETITION ELSEWHERE, "THE SOLE
QUESTION IS WHETHER SUCH LOCAL ACTIVITIES ARE SO CLOSELY RELATED TO AND
SUCH AN INTEGRAL PART OF THE INTERSTATE BUSINESS OF APPELLANTS WHO
TRANSPORT GAS IN INTERSTATE COMMERCE AS TO BE WITHIN THE SCOPE OF THE
COMMERCE CLAUSE OF THE CONSTITUTION."  THE COURT CONCLUDED THAT SUCH
TAKING "IS JUST AS LOCAL IN NATURE AS THE PRODUCTION ITSELF IS LOCAL,"
AND HELD THE TAX VALID PRINCIPALLY ON THE AUTHORITY OF UTAH POWER &
LIGHT CO. V. PFOST, 286 U.S. 165 (1932), AND HOPE NATURAL GAS CO. V.
HALL, 274 U.S. 284 (1927).  (FN4) 

WE ACCEPT THE STATE COURT'S DETERMINATION OF THE OPERATING INCIDENCE
OF THE TAX, AND WE THINK THE COURT HAS CORRECTLY STATED THE ESSENTIAL
QUESTION PRESENTED.  BUT WE ARE UNABLE TO AGREE WITH ITS ANSWER THERETO
OR WITH ITS CONCLUSION OF CONSTITUTIONALITY. 

APPELLANTS' BUSINESS IS THE INTERSTATE TRANSPORTATION AND SALE OF
NATURAL GAS.  UNDER THE COMMERCE CLAUSE INTERSTATE COMMERCE AND ITS
INSTRUMENTALITIES ARE NOT TOTALLY IMMUNE FROM STATE TAXATION, ABSENT
ACTION BY CONGRESS.  FREQUENTLY IT HAS BEEN SAID THAT INTERSTATE
BUSINESS MUST PAY ITS WAY, POSTAL TELEGRAPH-CABLE CO. V. RICHMOND, 249
U.S. 252, 259 (1919); WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S.
250, 254 (1938); AND THE COURT HAS DONE MORE THAN PAY LIP SERVICE TO
THIS IDEA.  NUMEROUS CASES HAVE UPHELD STATE LEVIES WHERE IT IS THOUGHT
THAT THE TAX DOES NOT OPERATE TO DISCRIMINATE AGAINST COMMERCE OR
UNDULY BURDEN IT EITHER DIRECTLY OR BY THE POSSIBILITY OF MULTIPLE
TAXATION RESULTING FROM OTHER TAXES OF THE SAME SORT BEING IMPOSED BY
OTHER STATES.  THE RECURRING PROBLEM IS TO RESOLVE A CONFLICT BETWEEN
THE CONSTITUTION'S MANDATE THAT TRADE BETWEEN THE STATES BE PERMITTED
TO FLOW FREELY WITHOUT UNNECESSARY OBSTRUCTION FROM ANY SOURCE, AND THE
STATE'S RIGHTFUL DESIRE TO REQUIRE THAT INTERSTATE BUSINESS BEAR ITS
PROPER SHARE OF THE COSTS OF LOCAL GOVERNMENT IN RETURN FOR BENEFITS
RECEIVED.  SOME HAVE THOUGHT THAT THE WISEST COURSE WOULD BE FOR THIS
COURT TO UPHOLD ALL STATE TAXES NOT PATENTLY DISCRIMINATORY, AND WAIT
FOR CONGRESS TO ADJUST CONFLICTS WHEN AND AS IT WISHED.  BUT THIS VIEW
HAS NOT PREVAILED, AND THE COURT HAS THEREFORE BEEN FORCED TO DECIDE IN
MANY VARIED FACTUAL SITUATIONS WHETHER THE APPLICATION OF A GIVEN STATE
TAX TO A GIVEN ASPECT OF INTERSTATE ACTIVITY VIOLATES THE COMMERCE
CLAUSE.  IT IS NOW WELL SETTLED THAT A TAX IMPOSED ON A LOCAL ACTIVITY
RELATED TO INTERSTATE COMMERCE IS VALID IF, AND ONLY IF, THE LOCAL
ACTIVITY IS NOT SUCH AN INTEGRAL PART OF THE INTERSTATE PROCESS, THE
FLOW OF COMMERCE, THAT IT CANNOT REALISTICALLY BE SEPARATED FROM IT.
MEMPHIS NATURAL GAS CO. V. STONE, 335 U.S. 80, 87 (1948); WESTERN LIVE
STOCK V. BUREAU OF REVENUE, SUPRA, AT 258.  AND IF A GENUINE SEPARATION
OF THE TAXED LOCAL ACTIVITY FROM THE INTERSTATE PROCESS IS IMPOSSIBLE,
IT IS MORE LIKELY THAT OTHER STATES THROUGH WHICH THE COMMERCE PASSES
OR INTO WHICH IT FLOWS CAN WITH EQUAL RIGHT IMPOSE A SIMILAR LEVY ON
THE GOODS, WITH THE NET EFFECT OF PREJUDICING OR UNDULY BURDENING
COMMERCE.    THE PROBLEM IN THIS CASE IS NOT WHETHER THE STATE COULD
TAX THE ACTUAL GATHERING OF ALL GAS WHETHER TRANSMITTED IN INTERSTATE
COMMERCE OR NOT, CF. HOPE NATURAL GAS CO. V. HALL, SUPRA, BUT WHETHER
THERE THE STATE HAS DELAYED THE INCIDENCE OF THE TAX BEYOND THE STEP
WHERE PRODUCTION AND PROCESSING HAVE CEASED AND TRANSMISSION IN
INTERSTATE COMMERCE HAS BEGUN.  CF. UTAH POWER & LIGHT CO. V. PFOST,
SUPRA.  THE INCIDENCE OF THE TAX HERE AT ISSUE, AS STATED BY THE TEXAS
APPELLATE COURT, IS APPELLANTS'"TAKING" OF GAS FROM PHILLIPS' GASOLINE
PLANT.  THIS EVENT, AS STIPULATED, OCCURS AFTER THE GAS HAS BEEN
PRODUCED, GATHERED AND PROCESSED BY OTHERS THAN APPELLANTS.  THE
"TAKING" INTO APPELLANTS' PIPELINES IS SOLELY FOR INTERSTATE
TRANSMISSION AND THE GAS AT THAT TIME IS NOT ONLY ACTUALLY COMMITTED TO
BUT IS MOVING IN INTERSTATE COMMERCE.  WHAT TEXAS SEEKS TO TAX IS,
THEREFORE, MORE THAN MERELY THE LOADING OF AN INTERSTATE CARRIER, WHICH
WAS CONDEMNED IN JOSEPH V. CARTER & WEEKES STEVEDORING CO., 330 U.S.
422, 427 (1947), FOR THE GAS HERE SIMULTANEOUSLY ENTERS THE PIPELINE
CARRIER AND MOVES ON CONTINUOUSLY TO ITS OUTSIDE MARKET.  "THERE IS NO
BREAK, NO PERIOD OF DELIBERATION, BUT A STEADY FLOW ENDING AS
CONTEMPLATED FROM THE BEGINNING BEYOND THE STATE LINE."   UNITED FUEL
GAS CO. V. HALLANAN, 257 U.S. 277, 281 (1921).  AS EARLY AS GLOUCESTER
FERRY CO. V. PENNSYLVANIA, 114 U.S. 196, 213 (1885), THIS COURT SAID,
"RECEIVING AND LANDING PASSENGERS AND FREIGHT IS INCIDENT TO THEIR
TRANSPORTATION."  BUT RECEIPT OF THE GAS IN THE PIPELINE IS MORE THAN
ITS "TAKING"; FROM A PRACTICAL STANDPOINT IT IS ITS "TAKING OFF" IN
APPELLANTS' CARRIER INTO COMMERCE; IN REALITY THE TAX IS, THEREFORE, ON
THE EXIT OF THE GAS FROM THE STATE.  THIS ECONOMIC PROCESS IS
INHERENTLY UNSUSCEPTIBLE OF DIVISION INTO A DISTINCT LOCAL ACTIVITY
CAPABLE OF FORMING THE BASIS FOR THE TAX HERE IMPOSED, ON THE ONE HAND,
AND A SEPARATE MOVEMENT IN COMMERCE, ON THE OTHER.  IT IS DIFFICULT TO
CONCEIVE OF A FACTUAL SITUATION WHERE THE INCIDENCE OF TAKING OR
LOADING FOR TRANSMISSION IS MORE CLOSELY RELATED TO THE TRANSMISSION
ITSELF.  THIS COURT HAS HELD THAT MUCH LESS INTEGRATED ACTIVITY IS "SO
CLOSELY RELATED TO INTERSTATE TRANSPORTATION AS TO BE PRACTICALLY A
PART OF IT."  (FN5)  WE ARE THEREFORE OF THE OPINION THAT THE TAKING OF
THE GAS HERE IS ESSENTIALLY A PART OF INTERSTATE COMMERCE ITSELF. 

THE COURT OF CIVIL APPEALS, AS WE HAVE STATED, RELIED LARGELY ON UTAH
POWER & LIGHT CO. V. PFOST, SUPRA.  BUT THAT CASE INVOLVED A LICENSE
TAX ON THE GENERATION OF ELECTRICITY PRODUCED IN A HYDRAULIC POWER
PLANT WITHIN THE STATE OF IDAHO AND TRANSMITTED TO UTAH.  THE QUESTION
THE COURT WAS CALLED UPON TO SOLVE WAS WHETHER "THE GENERATION OF
ELECTRICAL ENERGY, LIKE MANUFACTURE OR PRODUCTION GENERALLY, IS A
PROCESS ESSENTIALLY LOCAL IN CHARACTER AND COMPLETE IN ITSELF; OR IS IT
SO LINKED WITH THE TRANSMISSION AS TO MAKE IT AN INSEPARABLE PART OF A
TRANSACTION IN INTERSTATE COMMERCE?"  THE COURT THOUGHT IT INACCURATE
TO SAY THAT THE ENTIRE SYSTEM WAS PURELY A TRANSFERRING DEVICE.  "ON
THE CONTRARY," IT SAID, "THE GENERATOR AND THE TRANSMISSION LINES
PERFORM DIFFERENT FUNCTIONS, WITH A RESULT COMPARABLE, SO FAR AS THE
QUESTION HERE UNDER CONSIDERATION IS CONCERNED, TO THE MANUFACTURE OF
PHYSICAL ARTICLES OF TRADE AND THEIR SUBSEQUENT SHIPMENT AND
TRANSPORTATION IN COMMERCE."  (FN6)  CITED TO SUPPORT THIS PRINCIPLE
WAS OLIVER IRON MINING CO. V. LORD, 262 U.S. 172 (1923), WHERE A STATE
TAX LEVIED ON ALL "ENGAGED IN THE BUSINESS OF MINING OR PRODUCING IRON
ORE OR OTHER ORES" WAS UPHELD SINCE THE "ORE DOES NOT ENTER INTERSTATE
COMMERCE UNTIL AFTER THE MINING IS DONE, AND THE TAX IS IMPOSED ONLY IN
RESPECT OF THE MINING" (AT 179); AND HOPE NATURAL GAS CO. V. HALL,
SUPRA, WHICH UPHELD A TAX ON "PRODUCERS OF NATURAL GAS RECKONED
ACCORDING TO THE VALUE OF THAT COMMODITY AT THE WELL."  BUT THE TAX
HERE IS NOT LEVIED ON THE CAPTURE OR PRODUCTION OF THE GAS, BUT RATHER
ON ITS TAKING INTO INTERSTATE COMMERCE AFTER PRODUCTION, GATHERING AND
PROCESSING. 

THE STATE APPELLATE COURT RECOGNIZED THAT NOTHING WAS DONE TO THE GAS
AT THE POINT OF "TAKING"; ITS FORM WAS NOT CHANGED IN ANY WAY; IT
MERELY CONTINUED ITS JOURNEY.  HOWEVER, THE COURT THOUGHT THAT IT WOULD
BE UNFAIR TO BASE A DECISION ON THE FLUID NATURE OF NATURAL GAS, AND
THAT THERE WAS IN FACT A TWO-STEP PROCESS, TAKING AND TRANSMISSION,
WITH INTERFERENCE IN BETWEEN FOUND IN TITLE PASSING AND PROCESSING. 
BUT THE PROCESSING, ON WHICH THIS TAX IS NOT IMPOSED, WAS DONE BY
PHILLIPS AND TOOK PLACE PRIOR TO THE TAXABLE EVENT OF "TAKING."  AS FOR
THE INTERFERENCE OF TITLE PASSING, APPELLEES READILY ADMIT THIS LEVY
WAS DESIGNED TO AVOID TAXING THE SALE; AND WE THINK THAT, AS A BASIS
FOR FINDING A SEPARATE LOCAL ACTIVITY, THE INCIDENCE MUST BE A MORE
SUBSTANTIAL ECONOMIC FACTOR THAN THE MOVEMENT OF THE GAS FROM A LOCAL
OUTLET OF ONE OWNER INTO THE CONNECTING INTERSTATE PIPELINE OF
ANOTHER.  SUCH AN ASPECT OF INTERSTATE TRANSPORTATION CANNOT BE "CARVED
OUT FROM WHAT IS AN ENTIRE OR INTEGRAL ECONOMIC PROCESS," NIPPERT V.
RICHMOND, SUPRA, AT 423, BY LEGISLATIVE WHIMSY AND SEGREGATED AS A
BASIS FOR THE TAX.  THE SEPARATION MUST BE REALISTIC.  (FN7) 

HERE IT IS PERHAPS SUFFICIENT THAT THE PRIVILEGE TAXED, NAMELY THE
TAKING OF THE GAS, IS NOT SO SEPARATE AND DISTINCT FROM INTERSTATE
TRANSPORTATION AS TO SUPPORT THE TAX.  BUT ADDITIONAL OBJECTION IS
PRESENT IF THE TAX BE UPHELD.  IT WOULD "PERMIT A MULTIPLE BURDEN UPON
THAT COMMERCE," JOSEPH V. CARTER & WEEKES STEVEDORING CO., SUPRA, AT
429, FOR IF TEXAS MAY IMPOSE THIS "FIRST TAKING" TAX MEASURED BY THE
TOTAL VOLUME OF GAS SO TAKEN, THEN MICHIGAN AND THE OTHER RECIPIENT
STATES HAVE AT LEAST EQUAL RIGHT TO TAX THE FIRST TAKING OR "UNLOADING"
FROM THE PIPELINE OF THE SAME GAS WHEN IT ARRIVES FOR DISTRIBUTION. 
OKLAHOMA MIGHT THEN SEEK TO TAX THE FIRST TAKING OF THE GAS AS IT
CROSSED INTO THAT STATE.  THE NET EFFECT WOULD BE SUBSTANTIALLY TO
RESURRECT THE CUSTOMS BARRIERS WHICH THE COMMERCE CLAUSE WAS DESIGNED
TO ELIMINATE.  "THE VERY PURPOSE OF THE COMMERCE CLAUSE WAS TO CREATE
AN AREA OF FREE TRADE AMONG THE SEVERAL STATES.  THAT CLAUSE VESTED THE
POWER OF TAXING A TRANSACTION FORMING AN UNBROKEN PROCESS OF INTERSTATE
COMMERCE IN THE CONGRESS, NOT IN THE STATES."  MCLEOD V. DILWORTH CO.,
322 U.S. 327, 330-331 (1944).  REVERSED. 

FN1  CF. WESTERN UNION TELEGRAPH CO. V. PRIESTER, 276 U.S. 252
(1928). 

FN2  TEX. LAWS 1951, C. 402, SEC. XXIII. 

FN3  THE TWO APPELLANTS, THROUGH THE DISTRIBUTION COMPANIES, SUPPLY
GAS FOR CONSUMER MARKETS WITH A POPULATION OF ABOUT 12,000,000 PEOPLE. 
AS NOTED BY THE COURT BELOW, "EXCEPT FOR MINOR VARIATIONS PANHANDLE
CONDUCTS ITS ACTIVITIES IN THE SAME MANNER AS MICHIGAN-WISCONSIN. 
PANHANDLE LOADS ITS INTERSTATE PIPELINE WITH GAS FROM THE OUTLETS OF
THREE GASOLINE PLANTS, RATHER THAN WITH GAS FROM ONLY ONE PLANT; IT
PRODUCES A PORTION OF THE GAS WHICH IT TAKES AT THE OUTLET OF ONE OF
SUCH PLANTS; AND IT MAKES SALES IN TEXAS TO THREE SMALL CUSTOMERS,
RATHER THAN SENDING ALL OF ITS GAS OUTSIDE THE STATE."  WE AGREE WITH
THAT COURT THAT FOR PURPOSES OF THIS DECISION PANHANDLE'S OPERATIONS
ARE NOT SIGNIFICANTLY DIFFERENT FROM THOSE OF MICHIGAN-WISCONSIN.  ONLY
THE INTERSTATE ASPECTS OF THE ENTERPRISE ARE IN QUESTION.  THE
OPERATIONS OF MICHIGAN-WISCONSIN, WHICH TRANSMITS ALL OF ITS GAS OUT OF
TEXAS, MOST CLEARLY PRESENT THE QUESTION TO BE DECIDED AND WILL BE THE
BASIS OF OUR DISCUSSION.  THIS APPROACH WAS UTILIZED BY THE STATE
COURT; AND APPELLEES DO NOT SUGGEST THAT THE SITUATIONS OF THE TWO
APPELLANTS ARE DIFFERENT FOR PURPOSES OF DECISION HERE. 

FN4  APPELLEES CHALLENGE AT THE OUTSET OF THEIR ARGUMENT THIS COURT'S
JURISDICTION TO CONSIDER THESE APPEALS, ON THE GROUND THAT APPELLANTS
PRESENT NO QUESTION, FEDERAL OR OTHERWISE, FOR THE COURT'S
DETERMINATION.  THE ARGUMENT IS IN SUBSTANCE THAT APPELLANTS' GROUNDS
OF PROTEST IN THE STATE COURTS SET FORTH A NUMBEER OF ALLEGED OPERATING
INCIDENCES OF THE TAX, NONE OF WHICH COINCIDED WITH THE OPERATING
INCIDENCE FOUND BY THE COURT OF CIVIL APPEALS; THAT THE STATE COURT'S
FINDING ON THIS SUBJECT IS CONCLUSIVE AND BINDING ON THIS COURT; THAT
APPELLANTS, IN URGING THAT THE TAX IS A BURDEN ON AND DISCRIMINATORY
AGAINST INTERSTATE COMMERCE, ARE ADVANCING NEW GROUNDS NOT CONSIDERED
BY THE STATE COURTS AND HENCE WAIVED UNDER THE TEXAS PROTEST STATUTE;
IN SHORT, THAT THE ISSUE OF THE VALIDITY OF THE TAX WAS NOT PROPERLY
RAISED.  WE THINK THERE IS NO SUBSTANCE TO THIS CONTENTION.  IN THEIR
COMPLAINTS AND CONTINUOUSLY THEREAFTER APPELLANTS SPECIFICALLY
CHALLENGED THE VALIDITY OF THE TAX STATUTE UNDER THE COMMERCE CLAUSE. 
THE TRIAL COURT HELD THE TAX INVALID AS VIOLATING THE COMMERCE CLAUSE. 
THE COURT OF CIVIL APPEALS EXPRESSLY STATED THAT THE QUESTION FOR ITS
DECISION WAS WHETHER THE STATUTE AS APPLIED TO APPELLANTS "VIOLATES THE
COMMERCE CLAUSE OF THE CONSTITUTION OF THE UNITED STATES.  IF SO IT IS
VOID, IF NOT IT IS VALID."  SINCE THE STATE COURTS HAVE CLEARLY TREATED
THE SINGLE ISSUE HERE PRESENTED AS PROPERLY RAISED AND PRESERVED, AND
SINCE APPELLEES FIRST SUGGESTED THE CONTRARY IN THEIR BRIEF ON ARGUMENT
IN THIS COURT, WE THINK THE OBJECTIONS TO JURISDICTION ARE NOT WELL
TAKEN. 

FN5  BALTIMORE & OHIO S.W.R. CO. V. BURTCH, 263 U.S. 540, 544
(1924)("LOADING OR UNLOADING OF A SHIPMENT"); ALSO SEE TELEGRAPH CO. V.
TEXAS, 105 U.S. 460, 466 (1882)(TAX ON "SENDING" OF MESSAGES OUTSIDE
STATE IS A REGULATION OF INTERSTATE COMMERCE); PUGET SOUND STEVEDORING
CO. V. STATE TAX COMMISSION, 302 U.S. 90, 92 (1937)("LOADING AND
DISCHARGE OF CARGOES" IS INTERSTATE OPERATION); RICHFIELD OIL CORP. V.
STATE BOARD, 329 U.S. 69, 83 (1946)(COMMERCE BEGINS "NO LATER THAN THE
DELIVERY OF THE OIL INTO THE VESSEL"). 

FN6  286 U.S., AT 180-181.  THE COURT FOUND THAT IN THE OPERATION
THERE INVOLVED IT WAS NECESSARY TO CONVERT THE MECHANICAL ENERGY INTO
ELECTRICAL ENERGY BEFORE IT COULD BE TRANSMITTED AND THAT THIS
TRANSFORMATION WAS COMPLETED AT THE GENERATOR WHERE THE INTERSTATE
MOVEMENT BEGAN.  THIS IS ANALOGOUS TO THE SITUATION HERE WHERE THE GAS
IS PREPARED BY PHILLIPS FOR TRANSMISSION AND IS THEN FED INTO
APPELLANTS' LINES. 

FN7  APPELLEES ALSO RELY ON MEMPHIS NATURAL GAS CO. V. STONE, SUPRA;
WESTERN LIVE STOCK V. BUREAU OF REVENUE, SUPRA; EDELMAN V. BOEING AIR
TRANSPORT, 289 U.S. 249 (1933); CHASSANIOL V. GREENWOOD, 291 U.S. 584
(1934); COVERDALE V. ARKANSAS-LOUISIANA PIPE LINE CO., 303 U.S. 604
(1938).  WE THINK THESE CASES ARE DISTINGUISHABLE FROM THE PRESENT ONE
IN THAT IN EACH OF THEM THE TAX WAS IMPOSED ON A LESS INTEGRAL PART OF
THE COMMERCE PROCESS INVOLVED.  ALSO DISTINGUISHABLE IS MCGOLDRICK V.
BERWIND-WHITE COAL MINING CO., 309 U.S. 33 (1940), INVOLVING A TAX ON
THE SALE OF GOODS FOR CONSUMPTION, IMPOSED BY THE CITY IN WHICH THE
GOODS HAD COME TO REST.  THE COURT THERE FOUND THAT COMMERCE, AS TO THE
GOODS, HAD ENDED PRIOR TO THE TAXABLE EVENT, AND LIKENED THE TAX TO AN
AD VALOREM ONE ON PROPERTY. 
..END :



















PEREIRA V. UNITED STATES 347 U.S. 1 


NO. 50.  ARGUED OCTOBER 20, 1953 - DECIDED FEBRUARY 1, 1954 - 202 F.2D
830, AFFIRMED. 


PETITIONERS WERE CONVICTED IN A FEDERAL COURT OF (1) VIOLATING THE
MAIL FRAUD STATUTE, 18 U.S.C. SEC. 1341, BY CAUSING A LETTER TO BE
MAILED BY A BANK PURSUANT TO A SCHEME TO DEFRAUD, (2) VIOLATING THE
NATIONAL STOLEN PROPERTY ACT, 18 U.S.C. SEC. 2314, BY CAUSING A CHECK
OBTAINED BY FRAUD TO BE TRANSPORTED BY A BANK IN TEXAS TO A BANK IN
CALIFORNIA FOR COLLECTION, AND (3) A CONSPIRACY TO COMMIT THE TWO
SUBSTANTIVE OFFENSES IN VIOLATION OF 18 U.S.C. SEC. 371.  THE CHARGES
AROSE OUT OF A SCHEME TO DEFRAUD A WEALTHY WIDOW OF HER PROPERTY. 
PETITIONER PEREIRA MARRIED HER AND ABSCONDED SHORTLY THEREAFTER.  SHE
DIVORCED HIM BEFORE THE TRIAL AND WAS PERMITTED TO TESTIFY AGAINST BOTH
PETITIONERS OVER THEIR OBJECTIONS.  HELD:  THE CONVICTIONS ARE
AFFIRMED.  PP. 3-13. 

1.  THERE WAS NO ERROR IN THE ADMISSION OF THE VICTIM'S TESTIMONY
OVER THE OBJECTION THAT IT VIOLATED THE PRIVILEGE FOR CONFIDENTIAL
MARITAL COMMUNICATIONS; BECAUSE IT RELATED PRIMARILY TO STATEMENTS MADE
BEFORE THE MARRIAGE OR IN THE PRESENCE OF THIRD PERSONS OR ACTS WHICH
DID NOT AMOUNT TO CONFIDENTIAL MARITAL COMMUNICATIONS, AND ANY RESIDUUM
WHICH MAY HAVE BEEN INTENDED TO BE CONFIDENTIAL WAS SO SLIGHT AS TO BE
IMMATERIAL.  PP. 6-7. 

2.  EVIDENCE THAT, PURSUANT TO A SCHEME TO DEFRAUD, PEREIRA DELIVERED
TO A BANK IN ONE CITY FOR COLLECTION A CHECK DRAWN ON A BANK IN ANOTHER
CITY AND THAT IT WAS MAILED TO THE DRAWEE BANK IN THE ORDINARY COURSE
OF BUSINESS WAS SUFFICIENT TO SUSTAIN HIS CONVICTION OF THE SUBSTANTIVE
OFFENSE OF USING THE MAILS TO DEFRAUD, IN VIOLATION OF 18 U.S.C. SEC.
1341.  PP. 7-9. 

(A)  IN VIEW OF 18 U.S.C. SEC. 2(B), IT WAS NOT NECESSARY TO SHOW
THAT PETITIONER ACTUALLY MAILED OR TRANSPORTED ANYTHING HIMSELF; IT WAS
SUFFICIENT TO SHOW THAT HE CAUSED IT TO BE DONE.  P. 8. 

(B)  WHERE ONE DOES AN ACT WITH KNOWLEDGE THAT THE USE OF THE MAILS
WILL FOLLOW IN THE ORDINARY COURSE OF BUSINESS, OR WHERE SUCH USE CAN
REASONABLY BE FORESEEN, EVEN THOUGH NOT ACTUALLY INTENDED, THEN HE
"CAUSES" THE MAILS TO BE USED.  PP. 8-9. 

3.  EVIDENCE THAT PEREIRA DELIVERED TO A TEXAS BANK FOR COLLECTION A
CHECK OBTAINED BY FRAUD AND DRAWN ON A BANK IN CALIFORNIA AND THAT IT
WAS SENT TO THE DRAWEE BANK WAS SUFFICIENT TO SUSTAIN HIS CONVICTION OF
THE SUBSTANTIVE OFFENSE OF CAUSING PROPERTY OBTAINED BY FRAUD TO BE
TRANSPORTED IN INTERSTATE COMMERCE IN VIOLATION OF 18 U.S.C. SEC.
2314.  P. 9. 

4.  SECTIONS 1341 AND 2314 CONSTITUTE TWO SEPARATE OFFENSES, AND A
DEFENDANT MAY BE CONVICTED OF BOTH, EVEN THOUGH THE CHARGES ARISE FROM
A SINGLE ACT OR SERIES OF ACTS, SINCE EACH REQUIRES PROOF OF A FACT NOT
ESSENTIAL TO THE OTHER.  P. 9. 

5.  IN VIEW OF 18 U.S.C. SEC. 2(A) AND THE TRIAL COURT'S CHARGE TO
THE JURY, THE EVIDENCE PRESENTED BY THE GOVERNMENT THAT PETITIONER
BRADING WAS A PARTICIPANT IN THE FRAUD FROM BEGINNING TO END AND
ACTIVELY AIDED AND ABETTED PEREIRA IN ITS PERPETRATION WAS SUFFICIENT
TO SUSTAIN BRADING'S CONVICTION OF THE SUBSTANTIVE OFFENSES.  PP. 9
11. 

6.  PETITIONERS' CONVICTIONS ON BOTH THE SUBSTANTIVE COUNTS AND OF A
CONSPIRACY TO COMMIT THE CRIMES CHARGED IN THE SUBSTANTIVE COUNTS DID
NOT CONSTITUTE DOUBLE JEOPARDY.  PP. 11-12. 

7.  THE EVIDENCE WAS SUFFICIENT TO SUSTAIN PETITIONERS' CONVICTIONS
ON THE CHARGE OF CONSPIRACY.  PP. 12-13. 

PEREIRA ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS, PEREIRA AND BRADING, WERE CONVICTED IN THE DISTRICT
COURT FOR THE WESTERN DISTRICT OF TEXAS UNDER THREE COUNTS OF AN
INDICTMENT CHARGING VIOLATION OF THE MAIL FRAUD STATUTE, 18 U.S.C.
(SUPP. V) SEC. 1341, VIOLATION OF THE NATIONAL STOLEN PROPERTY ACT, 18
U.S.C.  (SUPP. V) SEC. 2314, AND A CONSPIRACY TO COMMIT THE AFORESAID
SUBSTANTIVE OFFENSES, 18 U.S.C.  (SUPP. V) SEC. 371.  THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  202 F.2D 830.  THIS COURT
GRANTED CERTIORARI TO CONSIDER QUESTIONS WHICH ARE IMPORTANT TO THE
PROPER ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL COURTS.  345
U.S. 990. 

ON APRIL 19, 1951, MRS. GERTRUDE JOYCE, A WEALTHY WIDOW, FIFTY-SIX
YEARS OLD, AND HER YOUNGER HALF-SISTER, MISS KATHERINE JOYNER, WERE
ACCOSTED BY THE PETITIONER BRADING AS THEY WERE ABOUT TO ENTER A HOTEL
IN EL PASO, TEXAS.  MRS. JOYCE AND HER SISTER HAD JUST ARRIVED FROM
THEIR HOME IN ROSWELL, NEW MEXICO, AND WERE PREPARING TO REGISTER AT
THE HOTEL.  BRADING IDENTIFIED HIMSELF, ASSISTED THEM IN PARKING THEIR
CAR, AND INVITED THEM INTO THE HOTEL BAR TO MEET A FRIEND OF HIS.  THEY
ACCEPTED.  THE FRIEND WAS PETITIONER PEREIRA, THIRTY-THREE YEARS OF
AGE.  AFTER A FEW DRINKS, THE MEN SUGGESTED THAT THEY ALL GO TO JUAREZ
FOR DINNER.  THE WOMEN ACCEPTED, AND AFTER DINNER VISITED SOME NIGHT
CLUBS WITH THE PETITIONERS.  PEREIRA DEVOTED HIMSELF TO MRS. JOYCE,
TELLING HER THAT THEIR MEETING WAS AN "EPOCH" IN HIS LIFE.  HE
MENTIONED THAT HE WAS GETTING A DIVORCE.  THIS SAME PERFORMANCE WAS
REPEATED THE FOLLOWING NIGHT.  WHEN PEREIRA SAID THAT HE WOULD LIKE TO
RETURN TO ROSWELL WITH THE WOMEN, MRS. JOYCE INVITED THE TWO MEN TO BE
HER HOUSE GUESTS, AND THEY ACCEPTED.   PEREIRA COMMENCED TO MAKE LOVE
TO MRS. JOYCE, AND SHE RESPONDED TO HIS ATTENTIONS.  ON MAY 3, PEREIRA
EXHIBITED A TELEGRAM TO MRS. JOYCE, IN THE PRESENCE OF BRADING AND MISS
JOYNER, STATING THAT HIS DIVORCE WOULD BE GRANTED ON MAY 27, BUT THAT
HE WOULD NOT RECEIVE HIS SHARE OF THE PROPERTY SETTLEMENT, SOME
$48,000, FOR A MONTH. 

BRADING REPRESENTED HIMSELF AS A PROSPEROUS OIL MAN, DEALING IN
LEASES, AND PEREIRA AS THE OWNER AND OPERATOR OF SEVERAL PROFITABLE
HOTELS.  BRADING THEN TOLD MRS. JOYCE THAT PEREIRA WAS ABOUT TO LOSE AN
OPPORTUNITY TO SHARE IN THE PROFITS OF SOME EXCELLENT OIL LEASES
BECAUSE OF THE DELAY IN THE DIVORCE PROPERTY SETTLEMENT, AND PERSUADED
HER TO LEND PEREIRA $5,000. 

PEREIRA SUGGESTED THAT HE AND MRS. JOYCE TAKE A TRIP TOGETHER TO
"BECOME BETTER ACQUAINTED."  HE BORROWED $1,000 FROM HER TO FINANCE THE
TRIP.  BRADING JOINED THEM AT WICHITA FALLS, AND THE THREE OF THEM
CONTINUED THE TRIP TOGETHER AS FAR AS DALLAS.  PEREIRA DISCUSSED HIS
PURPORTED HOTEL BUSINESS IN DENVER DURING THIS PART OF THE TRIP.  HE
STATED THAT HE WAS GIVING TWO HOTELS TO HIS DIVORCED WIFE, BUT INTENDED
TO RE-ENTER THE HOTEL BUSINESS IN THE FALL.  IN THE MEANTIME, HE WAS
GOING TO "PLAY A LITTLE OIL" WITH BRADING.  IN HOT SPRINGS, ARKANSAS,
PEREIRA PROPOSED MARRIAGE AND WAS ACCEPTED.  BRADING REAPPEARED ON THE
SCENE, EXPRESSING GREAT JOY AT THE IMPENDING MARRIAGE.  PEREIRA THEN
TOLD BRADING, IN THE PRESENCE OF MRS. JOYCE, THAT HE WOULD HAVE TO
WITHDRAW FROM FURTHER OIL DEALS AND GET A HOTEL TO ASSURE HIMSELF OF A
STEADY INCOME. 

PEREIRA AND MRS. JOYCE WERE MARRIED MAY 25, 1951, IN KANSAS CITY,
MISSOURI.  WHILE THERE, PEREIRA PERSUADED MRS. JOYCE TO PROCURE FUNDS
TO ENABLE HIM TO COMPLETE AN ARRANGEMENT TO PURCHASE A CADILLAC THROUGH
A FRIEND.  SHE SECURED A CHECK FOR $6,956.55 FROM HER LOS ANGELES
BROKER, AND DRAWN ON A CALIFORNIA BANK, WHICH SHE ENDORSED OVER TO
PEREIRA.  THE PRICE OF THE CAR WAS $4,750, AND SHE INSTRUCTED PEREIRA
TO RETURN THE BALANCE OF THE PROCEEDS OF THE CHECK TO HER.  HE KEPT THE
CHANGE. 

FROM THAT TIME ON, PEREIRA AND BRADING, IN THE PRESENCE OF MRS.
JOYCE, DISCUSSED A HOTEL WHICH BY WORDS AND CONDUCT THEY REPRESENTED
THAT PEREIRA WAS TO BUY IN GREENVILLE, TEXAS.  THEY TOOK MRS. JOYCE -
BY THIS TIME MRS. PEREIRA - TO SEE IT, AND EXHIBITED AN OPTION FOR ITS
PURCHASE FOR $78,000 THROUGH A SUPPOSED BROKER, "E.J. WILSON."  PEREIRA
ASKED HIS THEN WIFE IF SHE WOULD JOIN HIM IN THE HOTEL VENTURE AND
ADVANCE $35,000 TOWARD THE PURCHASE PRICE OF $78,000.  SHE AGREED.  IT
WAS THEN AGREED, BETWEEN HER AND PEREIRA, THAT SHE WOULD SELL SOME
SECURITIES THAT SHE POSSESSED IN LOS ANGELES, AND BANK THE MONEY IN A
BANK OF HIS CHOOSING IN EL PASO.  ON JUNE 15, SHE RECEIVED THE CHECK
FOR $35,000 ON THE CITIZENS NATIONAL BANK OF LOS ANGELES FROM HER
BROKERS IN LOS ANGELES, AND GAVE IT TO PEREIRA, WHO ENDORSED IT FOR
COLLECTION TO THE STATE NATIONAL BANK OF EL PASO.  THE CHECK CLEARED,
AND ON JUNE 18, A CASHIER'S CHECK FOR $35,000 WAS DRAWN IN FAVOR OF
PEREIRA. 

AT FIVE O'CLOCK IN THE MORNING OF JUNE 19, PEREIRA AND BRADING, AFTER
TELLING THEIR VICTIM THAT THEY WERE DRIVING THE CADILLAC TO A
NEIGHBORING TOWN TO SIGN SOME OIL LEASES, LEFT HER AT HOME IN ROSWELL,
NEW MEXICO, PROMISING TO RETURN BY NOON.  INSTEAD PEREIRA PICKED UP THE
CHECK FOR $35,000 AT THE EL PASO BANK, CASHED IT THERE, AND WITH
BRADING LEFT WITH THE MONEY AND THE CADILLAC. 

THAT WAS THE LAST MRS. JOYCE SAW OF EITHER PETITIONER, OR OF HER
MONEY, UNTIL THE TRIAL SOME SEVEN MONTHS LATER.  SHE DIVORCED PEREIRA
ON NOVEMBER 16, 1951. 

THE RECORD CLEARLY SHOWS THAT BRADING WAS NOT AN OIL MAN; THAT
PEREIRA WAS NOT A HOTEL OWNER; THAT THERE WAS NO DIVORCE OR PROPERTY
SETTLEMENT PENDING IN DENVER; THAT PEREIRA ARRANGED TO HAVE THE
TELEGRAM CONCERNING THE DIVORCE SENT TO HIM BY A FRIEND IN DENVER; THAT
THERE WERE NO OIL LEASES; THAT THE HOTEL DEAL WAS WHOLLY FICTITIOUS;
AND THAT "E.J. WILSON" WAS THE PETITIONER BRADING.  THE ONLY TRUE
STATEMENTS WHICH THE PETITIONERS MADE CONCERNED THE PURCHASE OF THE
CADILLAC, AND THEY TOOK THAT WITH THEM.  PEREIRA AND BRADING CONTRIVED
ALL OF THE PAPERS USED TO LEND AN AIR OF AUTHENTICITY TO THEIR DEALS. 
IN SHORT, THEIR ACTIVITIES FOLLOWED THE FAMILIAR PATTERN OF THE
"CONFIDENCE GAME." 

THE PETITIONERS CHALLENGE THE ADMISSIBILITY OF MRS. JOYCE'S TESTIMONY
AS BEING BASED ON CONFIDENTIAL COMMUNICATIONS BETWEEN MRS. JOYCE AND
PEREIRA DURING THE MARRIAGE.  PETITIONERS DO NOT NOW CONTEND THAT MRS.
JOYCE WAS NOT A COMPETENT WITNESS AGAINST HER EX-HUSBAND.  THEY CONCEDE
THAT THE DIVORCE REMOVED ANY BAR OF INCOMPETENCY.  THAT IS THE
GENERALLY ACCEPTED RULE.  WIGMORE, EVIDENCE, SEC. 2237; 58 AM. JUR.,
WITNESSES, SEC. 204.  PETITIONERS RELY ON THE PROPOSITION THAT WHILE
DIVORCE REMOVES THE BAR OF INCOMPETENCY, IT DOES NOT TERMINATE THE
PRIVILEGE FOR CONFIDENTIAL MARITAL COMMUNICATIONS.  WIGMORE, EVIDENCE,
SEC. 2341(2); 58 AM. JUR., WITNESSES, SEC. 379.  THIS IS A CORRECT
STATEMENT OF THE RULE, BUT IT IS INAPPLICABLE TO BAR THE COMMUNICATIONS
INVOLVED IN THIS CASE, SINCE UNDER THE FACTS OF THE CASE, IT CANNOT BE
SAID THAT THESE COMMUNICATIONS WERE CONFIDENTIAL.  ALTHOUGH MARITAL
COMMUNICATIONS ARE PRESUMED TO BE CONFIDENTIAL, THAT PRESUMPTION MAY BE
OVERCOME BY PROOF OF FACTS SHOWING THAT THEY WERE NOT INTENDED TO BE
PRIVATE.  BLAU V. UNITED STATES, 340 U.S. 332; WOLFLE V. UNITED STATES,
291 U.S. 7.  THE PRESENCE OF A THIRD PARTY NEGATIVES THE PRESUMPTION OF
PRIVACY.  WIGMORE, EVIDENCE, SEC. 2336.  SO TOO, THE INTENTION THAT THE
INFORMATION CONVEYED BE TRANSMITTED TO A THIRD PERSON.  ID., SEC.
2336.  THE PRIVILEGE, GENERALLY, EXTENDS ONLY TO UTTERANCES, AND NOT TO
ACTS.  ID., SEC. 2337.  A REVIEW OF MRS. JOYCE'S TESTIMONY REVEALS THAT
IT INVOLVED PRIMARILY STATEMENTS MADE IN THE PRESENCE OF BRADING OR
MISS JOYNER, OR BOTH, ACTS OF PEREIRA WHICH DID NOT AMOUNT TO
COMMUNICATIONS, TRIPS TAKEN WITH THIRD PARTIES, AND HER OWN ACTS.  MUCH
OF HER TESTIMONY RELATED TO MATTERS OCCURRING PRIOR TO THE MARRIAGE. 
ANY RESIDUUM WHICH MAY HAVE BEEN INTENDED TO BE CONFIDENTIAL WAS SO
SLIGHT AS TO BE IMMATERIAL.  CF. UNITED STATES V. MITCHELL, 137 F.2D
1006, 1009. 

THE COURT BELOW WAS NOT IN ERROR IN ADMITTING MRS. JOYCE'S
TESTIMONY. 

THE PETITIONERS CHALLENGE THEIR CONVICTION ON THE SUBSTANTIVE COUNTS
ON THE GROUND THAT THERE WAS NO EVIDENCE OF ANY MAILING OR OF
TRANSPORTING STOLEN PROPERTY INTERSTATE, THE GIST OF THE RESPECTIVE
OFFENSES.  THESE CONTENTIONS ARE WITHOUT MERIT. 

THE MAIL FRAUD STATUTE PROVIDES: 

"SEC. 1341.  FRAUDS AND SWINDLES. 

"WHOEVER, HAVING DEVISED OR INTENDING TO DEVISE ANY SCHEME OR
ARTIFICE TO DEFRAUD, OR FOR OBTAINING MONEY OR PROPERTY BY MEANS OF
FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS, OR PROMISES, OR TO
SELL, DISPOSE OF, LOAN, EXCHANGE, ALTER, GIVE AWAY, DISTRIBUTE, SUPPLY,
OR FURNISH OR PROCURE FOR UNLAWFUL USE ANY COUNTERFEIT OR SPURIOUS
COIN, OBLIGATION, SECURITY, OR OTHER ARTICLE, OR ANYTHING REPRESENTED
TO BE OR INTIMATED OR HELD OUT TO BE SUCH COUNTERFEIT OR SPURIOUS
ARTICLE, FOR THE PURPOSE OF EXECUTING SUCH SCHEME OR ARTIFICE OR
ATTEMPTING SO TO DO, PLACES IN ANY POST OFFICE OR AUTHORIZED DEPOSITORY
FOR MAIL MATTER, ANY MATTER OR THING WHATEVER TO BE SENT OR DELIVERED
BY THE POST OFFICE DEPARTMENT, OR TAKES OR RECEIVES THEREFROM, ANY SUCH
MATTER OR THING, OR KNOWINGLY CAUSES TO BE DELIVERED BY MAIL ACCORDING
TO THE DIRECTION THEREON, OR AT THE PLACE AT WHICH IT IS DIRECTED TO BE
DELIVERED BY THE PERSON TO WHOM IT IS ADDRESSED, ANY SUCH MATTER OR
THING, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN
FIVE YEARS, OR BOTH."  18 U.S.C. (SUPP. V) SEC. 1341. 

THE NATIONAL STOLEN PROPERTY ACT PROVIDES: 

"SEC. 2314.  TRANSPORTATION OF STOLEN GOODS, SECURITIES, MONIES, OR
ARTICLES USED IN COUNTERFEITING. 

"WHOEVER TRANSPORTS IN INTERSTATE OR FOREIGN COMMERCE ANY GOODS,
WARES, MERCHANDISE, SECURITIES OR MONEY, OF THE VALUE OF $5,000 OR
MORE, KNOWING THE SAME TO HAVE BEEN STOLEN, CONVERTED OR TAKEN BY FRAUD
...  . 

"SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH  ...  ."  18 U.S.C. (SUPP. V) SEC. 2314. 

TO CONSTITUTE A VIOLATION OF THESE PROVISIONS, IT IS NOT NECESSARY TO
SHOW THAT PETITIONERS ACTUALLY MAILED OR TRANSPORTED ANYTHING
THEMSELVES; IT IS SUFFICIENT IF THEY CAUSED IT TO BE DONE.  18 U.S.C.
(SUPP. V) SEC. 2(B). 

PETITIONERS DO NOT DENY THAT THE PROOF OFFERED ESTABLISHES THAT THEY
PLANNED TO DEFRAUD MRS. JOYCE.  COLLECTING THE PROCEEDS OF THE CHECK
WAS AN ESSENTIAL PART OF THAT SCHEME.  FOR THIS PURPOSE, PEREIRA
DELIVERED THE CHECK DRAWN ON A LOS ANGELES BANK TO THE EL PASO BANK. 
THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT THE CHECK WAS MAILED FROM
TEXAS TO CALIFORNIA, IN THE ORDINARY COURSE OF BUSINESS. 

THE ELEMENTS OF THE OFFENSE OF MAIL FRAUD UNDER 18 U.S.C. (SUPP. V)
SEC. 1341 ARE (1) A SCHEME TO DEFRAUD, AND (2) THE MAILING OF A LETTER,
ETC., FOR THE PURPOSE OF EXECUTING THE SCHEME.  IT IS NOT NECESSARY
THAT THE SCHEME CONTEMPLATE THE USE OF THE MAILS AS AN ESSENTIAL
ELEMENT.  UNITED STATES V. YOUNG, 232 U.S. 155.  HERE, THE SCHEME TO
DEFRAUD IS ESTABLISHED, AND THE MAILING OF THE CHECK BY THE BANK,
INCIDENT TO AN ESSENTIAL PART OF THE SCHEME, IS ESTABLISHED.  THERE
REMAINS ONLY THE QUESTION WHETHER PEREIRA "CAUSED" THE MAILING.  THAT
QUESTION IS EASILY ANSWERED.  WHERE ONE DOES AN ACT WITH KNOWLEDGE THAT
THE USE OF THE MAILS WILL FOLLOW IN THE ORDINARY COURSE OF BUSINESS, OR
WHERE SUCH USE CAN REASONABLY BE FORESEEN, EVEN THOUGH NOT ACTUALLY
INTENDED, THEN HE "CAUSES" THE MAILS TO BE USED.  UNITED STATES V.
KENOFSKEY, 243 U.S. 440.  THE CONCLUSION THAT PEREIRA'S CONVICTION
UNDER THIS COUNT WAS PROPER FOLLOWS NATURALLY FROM THESE FACTORS. 

AS TO THE CHARGE OF CAUSING STOLEN PROPERTY TO BE TRANSPORTED IN
INTERSTATE COMMERCE, THE VALIDITY OF PEREIRA'S CONVICTION IS EVEN MORE
APPARENT.  SECTIONS 1341 AND 2314 OF TITLE 18 CONSTITUTE TWO SEPARATE
OFFENSES, AND A DEFENDANT MAY BE CONVICTED OF BOTH EVEN THOUGH THE
CHARGES ARISE FROM A SINGLE ACT OR SERIES OF ACTS, SO LONG AS EACH
REQUIRES THE PROOF OF A FACT NOT ESSENTIAL TO THE OTHER.  GAVIERES V.
UNITED STATES, 220 U.S. 338; BLOCKBURGER V. UNITED STATES, 284 U.S.
299.  18 U.S.C. (SUPP. V) SEC. 2314 REQUIRES (1) KNOWLEDGE THAT CERTAIN
PROPERTY HAS BEEN STOLEN OR OBTAINED BY FRAUD, AND (2) TRANSPORTING IT,
OR CAUSING IT TO BE TRANSPORTED, IN INTERSTATE COMMERCE.  IT IS OBVIOUS
THAT THE MAIL FRAUD OFFENSE REQUIRES DIFFERENT PROOF.  THE TRANSPORTING
CHARGE DOES NOT REQUIRE PROOF THAT ANY SPECIFIC MEANS OF TRANSPORTING
WERE USED, OR THAT THE ACTS WERE DONE PURSUANT TO A SCHEME TO DEFRAUD,
AS IS REQUIRED FOR THE MAIL FRAUD CHARGE.  UNITED STATES V. SHERIDAN,
329 U.S. 379.  WHEN PEREIRA DELIVERED THE CHECK, DRAWN ON AN OUT-OF
STATE BANK, TO THE EL PASO BANK FOR COLLECTION, HE "CAUSED" IT TO BE
TRANSPORTED IN INTERSTATE COMMERCE.  IT IS COMMON KNOWLEDGE THAT SUCH
CHECKS MUST BE SENT TO THE DRAWEE BANK FOR COLLECTION, AND IT FOLLOWS
THAT PEREIRA INTENDED THE EL PASO BANK TO SEND THIS CHECK ACROSS STATE
LINES.  UNITED STATES V. SHERIDAN, SUPRA, AT 391.  THE TRIAL COURT
CHARGED THE JURY THAT ONE WHO "AIDS, ABETS, COUNSELS, COMMANDS, INDUCES
OR PROCURES" THE COMMISSION OF AN ACT IS AS RESPONSIBLE FOR THAT ACT AS
IF HE HAD DIRECTLY COMMITTED THE ACT HIMSELF.   SEE 18 U.S.C. (SUPP. V)
SEC. 2(A).  NYE & NISSEN V. UNITED STATES, 336 U.S. 613.  THE JURY
FOUND BRADING GUILTY IN THE LIGHT OF THIS INSTRUCTION.  THE COURT OF
APPEALS AFFIRMED ON THE GROUND THAT THE EVIDENCE SUPPORTED CONVICTION
UNDER THIS CHARGE.*    *THE GOVERNMENT ARGUES THAT BRADING'S CONVICTION
ON THE SUBSTANTIVE OFFENSES CAN BE AFFIRMED ON THE BASIS OF PINKERTON
V. UNITED STATES, 328 U.S. 640, SINCE THE RECORD DEMONSTRATES THAT HE
CONSPIRED TO DEFRAUD MRS. JOYCE AND THE ACTS CHARGED IN THE SUBSTANTIVE
OFFENSES WERE ACTS IN FURTHERANCE OF THAT DESIGN.  THE PINKERTON CASE,
HOWEVER, IS INAPPLICABLE HERE SINCE THE JURY WAS NOT INSTRUCTED IN
TERMS OF THAT THEORY.  NYE & NISSEN V. UNITED STATES, 336 U.S. 613. 

THE EVIDENCE IS CLEAR AND CONVINCING THAT BRADING WAS A PARTICIPANT
IN THE FRAUD FROM BEGINNING TO END.  BRADING MADE THE INITIAL CONTACT
WITH THE VICTIM.  HE PERSUADED HER TO PART WITH $5,000, AS A LOAN TO
PEREIRA FOR INVESTMENT IN SOME NONEXISTENT OIL LEASES.  HE WAS PRESENT
AND PARTICIPATED IN CONVERSATIONS ABOUT BUYING THE HOTEL LEASE.  HE
ENGAGED A TELEPHONE-ANSWERING SERVICE UNDER THE NAME OF "E.J. WILSON,"
THE NAME OF PEREIRA'S PURPORTED BROKER.  THE EVIDENCE ESTABLISHED THAT
HE SENT A TELEGRAM TO PEREIRA AUTHORIZING AN EXTENSION OF THE SUPPOSED
OPTION TO PURCHASE THE HOTEL, SIGNING IT "E.J. WILSON."  HE SUPPLIED
THE FALSE EXCUSE FOR PEREIRA'S DEPARTURE FROM THE VICTIM, AND WENT WITH
PEREIRA TO COLLECT THE PROCEEDS OF THE CHECK.  HE AND PEREIRA FLED
TOGETHER WITH THE MONEY. 

THE "AIDING AND ABETTING" INSTRUCTION ENTITLED THE JURY TO DRAW
INFERENCES SUPPLYING ANY LACK OF EVIDENCE DIRECTLY CONNECTING THE
PETITIONER BRADING WITH THE SPECIFIC ACTS CHARGED IN THE INDICTMENT
FROM THE ABUNDANT CIRCUMSTANTIAL EVIDENCE OFFERED.  THE JURY WAS
PROPERLY CHARGED ON THIS THEORY.  THERE IS AMPLE EVIDENCE OF THE
PETITIONERS' COLLABORATION AND CLOSE COOPERATION IN THE FRAUD FROM
WHICH THE JURY COULD CONCLUDE THAT BRADING AIDED, ABETTED, OR COUNSELED
PEREIRA IN THE COMMISSION OF THE SPECIFIC ACTS CHARGED.  SEE NYE &
NISSON V. UNITED STATES, SUPRA, AT 619.  THE COURT OF APPEALS HAS
PASSED ON THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN BRADING'S
CONVICTION ON THIS THEORY.  WE SEE NO REASON TO UPSET THE FINDINGS OF
THE COURTS BELOW. 

THE PETITIONERS ALLEGE THAT THEIR CONVICTION ON BOTH THE SUBSTANTIVE
COUNTS AND A CONSPIRACY TO COMMIT THE CRIMES CHARGED IN THE SUBSTANTIVE
COUNTS CONSTITUTES DOUBLE JEOPARDY.  IT IS SETTLED LAW IN THIS COUNTRY
THAT THE COMMISSION OF A SUBSTANTIVE OFFENSE AND A CONSPIRACY TO COMMIT
IT ARE SEPARATE AND DISTINCT CRIMES, AND A PLEA OF DOUBLE JEOPARDY IS
NO DEFENSE TO A CONVICTION FOR BOTH.  SEE PINKERTON V. UNITED STATES,
328 U.S. 640, 643-644, AND CASES CITED THEREIN.  ONLY IF THE
SUBSTANTIVE OFFENSE AND THE CONSPIRACY ARE IDENTICAL DOES A CONVICTION
FOR BOTH CONSTITUTE DOUBLE JEOPARDY.  CF. GAVIERES V. UNITED STATES,
220 U.S. 338.  THE SUBSTANTIVE OFFENSES WITH WHICH PETITIONERS WERE
CHARGED DO NOT REQUIRE MORE THAN ONE PERSON FOR THEIR COMMISSION;
EITHER COULD BE ACCOMPLISHED BY A SINGLE INDIVIDUAL.  THE ESSENCE OF
THE CONSPIRACY CHARGE IS AN AGREEMENT TO USE THE MAILS TO DEFRAUD
AND/OR TO TRANSPORT IN INTERSTATE COMMERCE PROPERTY KNOWN TO HAVE BEEN
OBTAINED BY FRAUD.  PEREIRA'S CONVICTION ON THE SUBSTANTIVE COUNTS DOES
NOT DEPEND ON ANY AGREEMENT, HE BEING THE PRINCIPAL ACTOR.  SIMILARLY,
BRADING'S CONVICTION DOES NOT TURN ON THE AGREEMENT.  AIDING, ABETTING,
AND COUNSELING ARE NOT TERMS WHICH PRESUPPOSE THE EXISTENCE OF AN
AGREEMENT.  THOSE TERMS HAVE A BROADER APPLICATION, MAKING THE
DEFENDANT A PRINCIPAL WHEN HE CONSCIOUSLY SHARES IN A CRIMINAL ACT,
REGARDLESS OF THE EXISTENCE OF A CONSPIRACY.  NYE & NISSEN V. UNITED
STATES, SUPRA, AT 620.  THUS, THE CHARGE OF CONSPIRACY REQUIRES PROOF
NOT ESSENTIAL TO THE CONVICTIONS ON THE SUBSTANTIVE OFFENSES - PROOF OF
AN AGREEMENT TO COMMIT AN OFFENSE AGAINST THE UNITED STATES - AND IT
CANNOT BE SAID THAT THE SUBSTANTIVE OFFENSES AND THE CONSPIRACY ARE
IDENTICAL, ANY MORE THAN THAT THE TWO SUBSTANTIVE OFFENSES ARE
IDENTICAL. 

PETITIONERS FURTHER CONTEND THAT THERE WAS NO EVIDENCE THAT THEY
AGREED TO USE THE MAILS IN FURTHERANCE OF THE SCHEME TO DEFRAUD MRS.
JOYCE OR THAT THEY AGREED TO TRANSPORT STOLEN PROPERTY IN INTERSTATE
COMMERCE.  IT IS NOT NECESSARY THAT AN AGREEMENT TO USE THE MAILS OR
TRANSPORT STOLEN PROPERTY EXIST FROM THE INCEPTION OF THE SCHEME TO
DEFRAUD.  IF THERE WAS SUCH AN AGREEMENT AT ANY TIME, IT IS
SUFFICIENT.  THE EXISTENCE OF A CONSPIRACY TO DEFRAUD MRS. JOYCE IS NOT
DENIED.  PEREIRA OBTAINED A CHECK FROM THE VICTIM FOR THE PURCHASE OF
AN AUTOMOBILE.  THAT CHECK WAS DRAWN ON A LOS ANGELES BANK BY MRS.
JOYCE'S BROKERS.  WHEN THE SUBJECT OF PURCHASING THE HOTEL WAS
BROACHED, MRS. JOYCE TOLD PEREIRA THAT SHE WOULD HAVE TO HAVE HER
CALIFORNIA BROKER SELL SOME STOCKS TO OBTAIN THE FUNDS FOR THE
PURCHASE.  WHEN THERE WAS A DELAY IN CONTACTING THE BROKER, BRADING, AS
"E.J. WILSON," SENT A TELEGRAM EXTENDING THE SPURIOUS OPTION FOR THE
PURCHASE OF THE HOTEL.  THERE IS NO DOUBT ABOUT PEREIRA'S KNOWLEDGE
THAT A CHECK ON AN OUT-OF-STATE BANK WOULD BE INVOLVED.  FROM WHAT WE
HAVE SAID WITH REGARD TO THE SUBSTANTIVE OFFENSES, IT IS ALSO CLEAR
THAT AN INTENT TO COLLECT ON THE CHECK WOULD INCLUDE AN INTENT TO USE
THE MAILS OR TO TRANSPORT THE CHECK IN INTERSTATE COMMERCE.  IT WAS
CERTAINLY NOT IMPROPER TO ALLOW THE JURY TO DETERMINE FROM THE
CIRCUMSTANCES WHETHER BRADING SHARED PEREIRA'S KNOWLEDGE AND AGREED
WITH HIM AS TO THE USE OF THE ONLY APPROPRIATE MEANS OF COLLECTING THE
MONEY.  IT WOULD BE UNREASONABLE TO SUPPOSE THAT BRADING WOULD BE SO
CLOSELY ASSOCIATED WITH PEREIRA IN THE SCHEME TO DEFRAUD WITHOUT
KNOWING THE DETAILS RELATED TO THE REALIZATION OF THEIR COMMON GOAL. 
THERE IS NO REASON FOR THIS COURT TO UPSET THE JURY'S FINDING OF
CONSPIRACY. 

FOR THE FOREGOING REASONS, THE JUDGMENT BELOW IS AFFIRMED. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, CONCURRING IN PART AND DISSENTING IN PART. 

THAT A MONUMENTAL FRAUD WAS PERPETRATED BY THE PETITIONERS ON MRS.
JOYCE IN THE TRUE FASHION OF A CONFIDENCE GAME CANNOT BE DISPUTED. 
SUCH FRAUD COULD BE PUNISHED BY THE STATES.  FOR THE UNITED STATES TO
TAKE COGNIZANCE OF THE OFFENSES, THE MAILS HAD TO BE USED TO CARRY OUT
THE FRAUD OR THE CHECK FRAUDULENTLY OBTAINED MUST HAVE BEEN CARRIED
ACROSS STATE LINES.  THAT IS WHAT THE GOVERNMENT CHARGED.  COUNT ONE
CHARGED THAT THEY CAUSED A LETTER TO BE MAILED FROM EL PASO, TEXAS, TO
LOS ANGELES, CALIFORNIA, ON JUNE 15, 1951.  COUNT TEN CHARGED THAT ON
OR ABOUT THE SAME DATE THEY CAUSED THE CHECK, IN THE AMOUNT OF
$35,286.78, TO BE TRANSPORTED IN INTERSTATE COMMERCE FROM EL PASO TO
LOS ANGELES, KNOWING IT WAS OBTAINED BY FRAUD.  COUNT 11 CHARGED A
CONSPIRACY TO COMMIT THE SUBSTANTIVE OFFENSES.   I WOULD AFFIRM THE
CONVICTIONS EXCEPT AS TO BRADING ON THE SUBSTANTIVE COUNTS.  TO CONVICT
ON THE SUBSTANTIVE COUNTS, THE PETITIONERS MUST HAVE ACTUALLY USED THE
MAILS TO TRANSPORT THE CHECK FROM EL PASO TO LOS ANGELES.  THE USE MAY
BE PROVED BY DIRECT OR CIRCUMSTANTIAL EVIDENCE, BUT IT MUST BE PROVED. 
BRADING MUST HAVE USED, OR MUST HAVE KNOWN OR FROM THE FACTS AND
CIRCUMSTANCES BE REASONABLY EXPECTED TO HAVE KNOWN, THAT PEREIRA
ACTUALLY WOULD USE THE MAILS.  UNITED STATES V. PEONI, 100 F.2D 401,
402.  TO BE GUILTY OF THE CONSPIRACY, BRADING HAD ONLY TO REASONABLY
ANTICIPATE THAT PEREIRA MIGHT USE THE MAILS, AND IF HE DID SUBSEQUENTLY
USE THEM, THEN BRADING IS BOUND. 

THE ELEMENTS OF THE OFFENSE UNDER THE MAIL FRAUD STATUTE ARE (1) A
SCHEME TO DEFRAUD WHICH (2) REASONABLY CONTEMPLATES THE USE OF THE
MAILS, AND (3) USE OF THE MAILS IN FURTHERANCE OF THE PLAN.  THE
NATIONAL STOLEN PROPERTY ACT IS VIOLATED IF (1) ONE TRANSPORTS
SECURITIES OR MONEY OF THE VALUE OF $5,000 OR MORE IN INTERSTATE
COMMERCE AND (2) DOES SO KNOWING THEY HAVE BEEN TAKEN BY FRAUD. 

CONCEDEDLY, BRADING DID NOT PARTICIPATE DIRECTLY IN THE USE OF THE
MAILS TO TRANSPORT THE THIRTY-FIVE THOUSAND DOLLAR CHECK FROM EL PASO
TO LOS ANGELES.  HE CAN BE CONVICTED, IF AT ALL, ONLY AS AN AIDER AND
ABETTOR.  NYE & NISSEN V. UNITED STATES, 336 U.S. 613, 618.  THERE IS
NO EVIDENCE TO ESTABLISH THAT HE COULD REASONABLY HAVE EXPECTED THAT
THE MAILS WOULD BE USED IN CARRYING OUT THE SCHEME. 

THREE FINANCIAL TRANSACTIONS ARE MENTIONED BY THE COURT IN ITS
OPINION.  FIRST, THE $5,000 TRANSACTION.  THAT ALL TOOK PLACE IN
ROSWELL, NEW MEXICO, WHERE MRS. JOYCE CASHED A CHECK ON A ROSWELL BANK
AND GAVE THE PROCEEDS TO PEREIRA.  NO FEDERAL OFFENSE THERE.  THE
CADILLAC TRANSACTION WAS LIQUIDATED BY A CHECK RECEIVED FROM LOS
ANGELES BY MRS. JOYCE AND TURNED OVER TO PEREIRA, WHO CASHED IT IN
KANSAS CITY, MISSOURI.  BRADING WAS NOT SHOWN TO HAVE KNOWN WHERE THIS
MONEY CAME FROM, AND, MORE IMPORTANT, IT WAS NOT PROVED THAT THAT CHECK
WAS MAILED, AS WAS DONE IN THE CASE OF THE THIRD CHECK, FOR
$35,286.78. 

MRS. JOYCE ARRANGED FOR THIS CHECK, THE ONLY TRANSACTION UPON WHICH
THE CONVICTIONS ARE BASED, BY SELLING SECURITIES IN LOS ANGELES.  SHE
RECEIVED THE CHECK AND TURNED IT OVER TO PEREIRA IN ROSWELL, NEW
MEXICO, FROM WHENCE HE TOOK IT TO EL PASO, AND THERE, ON JUNE 15, 1951,
AFTER SECURING MRS. JOYCE'S ENDORSEMENT, CAUSED IT TO BE SENT THROUGH
THE MAILS FOR COLLECTION.  THE EVIDENCE DOES NOT SHOW WHERE BRADING WAS
AT THE TIME THESE EVENTS OCCURRED.  HE NEXT APPEARED AT MRS. JOYCE'S
HOME IN ROSWELL AFTER THE COMPLETION OF THE ACTS CONSTITUTING THE
FEDERAL CRIMES, AND ON JUNE 19, 1951, LEFT WITH PEREIRA, OSTENSIBLY TO
SEE ABOUT SOME OIL LEASES IN TEXAS.  THE SAME DAY PEREIRA COLLECTED THE
MONEY AT THE EL PASO BANK.  THERE IS NO DIRECT EVIDENCE THAT BRADING
ACTUALLY KNEW OR HAD REASON TO BELIEVE THAT A CHECK WOULD BE RECEIVED
OR THAT THE CHECK WOULD BE DRAWN ON AN OUT-OF-TOWN BANK, NECESSITATING
ITS BEING PLACED IN THE MAILS FOR COLLECTION. 

LACKING SUCH PROOF, AN IMPORTANT ELEMENT OF EACH CRIME CHARGED,
NAMELY, THAT BRADING HAD REASON TO FORESEE THE USE OF THE MAILS OR
INTERSTATE COMMERCE, HAS NOT BEEN ESTABLISHED.  IT IS TRUE THAT THE USE
OF THE MAILS NEED NOT HAVE BEEN ORIGINALLY INTENDED AS A PART OF THE
PLAN, BUT ITS USE MUST HAVE BEEN A NATURAL, REASONABLY FORESEEABLE
MEANS OF EXECUTING THE PLAN.  BRADING MIGHT WELL HAVE ASSUMED THAT CASH
WOULD BE GIVEN TO PEREIRA, OR, IF A CHECK, ONE DRAWN ON A LOCAL BANK. 

IT MAY WELL BE REASONABLE TO INFER THAT ONE RECEIVING A CHECK DRAWN ON
AN OUT-OF-TOWN BANK WOULD KNOW THAT IT WOULD BE MAILED IN THE PROCESS
OF COLLECTION, BUT TO THAT INFERENCE MUST BE ADDED THE INFERENCE THAT
BRADING HAD REASON TO KNOW THAT A CHECK WOULD BE RECEIVED AND ALSO THAT
THE CHECK WOULD BE ON AN OUT-OF-TOWN BANK.  THIS IS PILING INFERENCE
UPON INFERENCE, IN THE ABSENCE OF DIRECT PROOF.  IN SHORT, THIS IS
SIMPLY GUESSING BRADING INTO THE FEDERAL PENITENTIARY.  IT MAY BE GOOD
GUESSING, BUT IT IS NOT PROOF.   BRADING IS CLEARLY AN AIDER AND
ABETTOR OF THE SCHEME TO DEFRAUD, WHICH A STATE MAY PUNISH, BUT IS HE
AN AIDER AND ABETTOR OF THE FEDERAL OFFENSES OF USING THE MAILS TO
DEFRAUD AND CAUSING THE FRAUDULENT CHECK TO BE CARRIED ACROSS STATE
LINES?  I THINK NOT, UNLESS WE ARE WILLING TO SAY THAT AIDING AND
ABETTING THE SCHEME TO DEFRAUD IS AIDING AND ABETTING ANY MEANS USED
FOR THE CONSUMMATION OF THE FRAUD.  BRADING MUST AID AND ABET THE
FEDERAL CRIMES, NOT JUST THE FRAUDULENT SCHEME.  THERE IS NOT A
SCINTILLA OF EVIDENCE THAT BRADING AIDED AND ABETTED ANYTHING MORE THAN
THE SCHEME TO GET THE MONEY FROM MRS. JOYCE. 

IN BOLLENBACH V. UNITED STATES, 326 U.S. 607, THE DEFENDANT WAS
CHARGED WITH TRANSPORTING SECURITIES IN INTERSTATE COMMERCE KNOWING
THEM TO HAVE BEEN STOLEN, AND WITH CONSPIRACY TO COMMIT THE OFFENSE. 
HE WAS CONVICTED OF CONSPIRACY.  THE COURT HAD INSTRUCTED THE JURY THAT
POSSESSION OF THE SECURITIES BY THE DEFENDANT IN NEW YORK SOON AFTER
THEIR THEFT IN MINNESOTA WAS SUFFICIENT TO WARRANT THE JURY IN FINDING
THAT THE DEFENDANT KNEW THE SECURITIES HAD BEEN STOLEN, AND THIS WOULD
SUPPORT THE FURTHER "PRESUMPTION" THAT THE DEFENDANT WAS THE THIEF AND
TRANSPORTED THE SECURITIES IN INTERSTATE COMMERCE.  THIS COURT SET THE
CONVICTION ASIDE.  THE LATTER INFERENCE WAS SAID TO BE UNTENABLE. 

IN THIS CASE, I THINK IT UNTENABLE TO INFER THAT BRADING HAD REASON
TO KNOW THAT PEREIRA WOULD GET A FOREIGN CHECK THAT MUST BE SENT
THROUGH THE MAILS AND IN ITS HANDLING MUST BE CARRIED ACROSS STATE
LINES, THEREBY MAKING OUT THE FEDERAL CRIMES.  IT IS UNTENABLE BECAUSE
IT IS UNREASONABLE TO INFER ONE OR MORE FACTS FROM THE INFERENCE OF
ANOTHER FACT.  LOONEY V. METROPOLITAN R. CO., 200 U.S. 480, 488; UNITED
STATES V. ROSS, 92 U.S. 281. 
..END :







RADIO OFFICERS' UNION OF THE COMMERCIAL TELEGRAPHERS UNION, AFL, V.
NATIONAL LABOR RELATIONS BOARD 347 U.S. 17 


NO. 5.  ARGUED JANUARY 8, 1953 - REARGUED NOVEMBER 9, 1953 - DECIDED
FEBRUARY 1, 1954 - 196 F.2D 960, AFFIRMED.  196 F.2D 1, REVERSED.  197
F.2D 719, AFFIRMED. 


1.  A COMPLAINT FILED WITH THE NATIONAL LABOR RELATIONS BOARD AT THE
INSTANCE OF A UNION TRUCK DRIVER CHARGED HIS UNION WITH VIOLATING SECS.
8(B)(1)(A) AND 8(B)(2) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
BY CAUSING HIS EMPLOYER TO DISCRIMINATE AGAINST HIM, BECAUSE OF HIS
DELINQUENCY IN PAYING UNION DUES, BY REDUCING HIS SENIORITY STANDING
AND CAUSING HIM TO LOSE TRUCK-DRIVING ASSIGNMENTS WHICH HE OTHERWISE
WOULD HAVE RECEIVED.  THE BOARD FOUND, INTER ALIA, THAT THE UNION'S
EXCLUSIVE COLLECTIVE-BARGAINING AGREEMENT WITH THE EMPLOYER REQUIRED
ESTABLISHMENT OF A SENIORITY SYSTEM AND GAVE THE UNION AUTHORITY TO
SETTLE DISPUTES OVER THE SENIORITY STATUS OF ANY EMPLOYEE; THAT ITS
UNION-SECURITY PROVISIONS WERE NOT EFFECTIVE, DUE TO LACK OF THE
AUTHORIZATION THEN REQUIRED BY SEC. 8(A)(3); THAT THE UNION'S REDUCTION
OF THE EMPLOYEE'S SENIORITY RESTRAINED AND COERCED HIM IN THE EXERCISE
OF HIS RIGHT TO REFRAIN FROM ASSISTING THE UNION, IN VIOLATION OF SEC.
8(B)(1)(A); AND THAT IT HAD CAUSED THE EMPLOYER TO DISCRIMINATE AGAINST
THE EMPLOYEE, THUS TENDING TO ENCOURAGE MEMBERSHIP IN THE UNION, IN
VIOLATION OF SEC. 8(B)(2).  THE BOARD ORDERED THE UNION TO CEASE AND
DESIST FROM SUCH VIOLATIONS, TO REIMBURSE THE EMPLOYEE FOR LOSS OF PAY
RESULTING FROM SUCH DISCRIMINATION, TO REQUEST HIS EMPLOYER TO RESTORE
HIM TO HIS FORMER STATUS, AND TO POST APPROPRIATE NOTICES.  HELD:  THE
BOARD'S ORDER IS SUSTAINED.  PP. 24-28, 39-42, 55. 

2.  A COMPLAINT FILED WITH THE BOARD AT THE INSTANCE OF A RADIO
OFFICER CHARGED HIS UNION WITH VIOLATING THE SAME SECTIONS BY CAUSING A
STEAMSHIP COMPANY DISCRIMINATORILY TO REFUSE TO EMPLOY HIM.   THE BOARD
FOUND THAT THE UNION HAD A CONTRACT WITH THE COMPANY REQUIRING IT TO
EMPLOY UNION MEMBERS IN GOOD STANDING, WHEN AVAILABLE; THAT IT DID NOT
PROVIDE FOR A HIRING HALL GIVING THE UNION COMPLETE CONTROL OVER THE
SELECTION OF RADIO OFFICERS; THAT THE COMPANY OFFERED THE RADIO OFFICER
A JOB AND HE WAS WILLING TO ACCEPT IT; THAT THE COMPANY WAS PREVENTED
FROM EMPLOYING HIM BY THE WRONGFUL REFUSAL OF A UNION OFFICER TO
CERTIFY HIS GOOD STANDING, BECAUSE OF HIS ALLEGED VIOLATION OF UNION
RULES; THAT THIS RESTRAINED AND COERCED HIM IN HIS STATUTORY RIGHT TO
REFRAIN FROM OBSERVANCE OF UNION RULES, IN VIOLATION OF SEC.
8(B)(1)(A); THAT IT CAUSED THE COMPANY TO DISCRIMINATE AGAINST HIM BY
DENYING HIM EMPLOYMENT; AND THAT THE NORMAL EFFECT OF SUCH
DISCRIMINATION WAS TO ENCOURAGE MEMBERSHIP IN THE UNION, IN VIOLATION
OF SEC. 8(B)(2).  THE BOARD ORDERED THE UNION TO WITHDRAW OBJECTION TO
HIS EMPLOYMENT, TO REIMBURSE HIM FOR LOSS OF PAY AND TO TAKE OTHER
CORRECTIVE ACTIONS.  HELD:  THE BOARD'S ORDER IS SUSTAINED.  PP. 28-33,
39-42, 55. 

3.  A COMPLAINT FILED WITH THE BOARD CHARGED AN EMPLOYER WITH
DISCRIMINATION AGAINST NONUNION EMPLOYEES IN VIOLATION OF SEC. 8(A)(1),
(2) AND (3), BY GRANTING RETROACTIVE PAY INCREASES AND VACATION
PAYMENTS TO UNION EMPLOYEES AND REFUSING SUCH BENEFITS TO OTHER
EMPLOYEES SOLELY BECAUSE THEY WERE NOT UNION MEMBERS.  THE BOARD FOUND
THAT THIS HAD BEEN DONE; THAT THE UNION WAS THE EXCLUSIVE BARGAINING
AGENT OF ALL EMPLOYEES IN THE EMPLOYER'S DELIVERY DEPARTMENT; THAT THE
UNION-SECURITY CLAUSE IN THE UNION'S CONTRACT WITH THE EMPLOYER WAS
INVALID; THAT NOTHING IN THE CONTRACT WITH THE UNION PROHIBITED EQUAL
PAYMENT TO NONUNION EMPLOYEES; AND THAT THE NATURAL AND PROBABLE EFFECT
OF THE DISCRIMINATION WAS TO ENCOURAGE MEMBERSHIP IN THE UNION.  THE
BOARD ISSUED AN ORDER REQUIRING THE EMPLOYER TO CEASE AND DESIST FROM
SUCH PRACTICES, TO REIMBURSE THE NONUNION EMPLOYEES FOR THE LOSSES
SUSTAINED BY REASON OF THE DISCRIMINATION AGAINST THEM, AND TO POST
APPROPRIATE NOTICES.  HELD:  THE BOARD'S ORDER IS SUSTAINED.  PP. 34
38, 46-48, 55. 

4.  THE POLICY OF THE ACT IS TO INSULATE EMPLOYEES' JOBS FROM THEIR
ORGANIZATIONAL RIGHTS.  P. 40. 

5.  SECTIONS 8(A)(3) AND 8(B)(2) WERE DESIGNED TO ALLOW EMPLOYEES TO
EXERCISE FREELY THEIR RIGHT TO JOIN OR TO ABSTAIN FROM JOINING UNIONS,
THE ONLY LIMITATION BEING IN THE PROVISO TO SEC. 8(A)(3) WHICH
AUTHORIZES EMPLOYERS TO ENTER INTO CERTAIN UNION-SECURITY CONTRACTS. 
P. 40. 

6.  CONGRESS INTENDED TO PREVENT UTILIZATION OF UNION-SECURITY
AGREEMENTS FOR ANY PURPOSE OTHER THAN TO COMPEL PAYMENT OF UNION DUES
AND FEES.  PP. 40-41. 

7.  UNDER THE ACT, AN EMPLOYER MAY DISCHARGE AN EMPLOYEE FOR
NONMEMBERSHIP IN A UNION IF THE EMPLOYER HAS ENTERED INTO A VALID UNION
SECURITY CONTRACT AND IF THE OTHER REQUIREMENTS OF THE PROVISO ARE MET;
BUT NO OTHER DISCRIMINATION AIMED AT ENCOURAGING EMPLOYEES TO JOIN,
RETAIN MEMBERSHIP IN, OR STAY IN GOOD STANDING IN, A UNION IS
CONDONED.  PP. 41-42. 

8.  ALTHOUGH IT IS ESSENTIAL TO A VIOLATION OF SEC. 8(A)(3) THAT THE
EMPLOYER'S MOTIVE IN DISCRIMINATING AGAINST THE EMPLOYEE BE TO
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION, SPECIFIC
EVIDENCE OF INTENT TO ENCOURAGE OR DISCOURAGE IS NOT AN INDISPENSABLE
ELEMENT OF THE PROOF.  PP. 42-48. 

(A)  THE RECOGNITION THAT SPECIFIC PROOF OF INTENT IS UNNECESSARY
WHERE THE CONDUCT OF THE EMPLOYER INHERENTLY ENCOURAGES OR DISCOURAGES
UNION MEMBERSHIP IS BUT AN APPLICATION OF THE COMMONLAW RULE THAT A MAN
IS HELD TO INTEND THE FORESEEABLE CONSEQUENCES OF HIS CONDUCT.  PP. 44
46. 

(B)  DISCRIMINATION BY AN EMPLOYER SOLELY ON THE BASIS OF UNION
MEMBERSHIP STATUS SO FORESEEABLY CAUSES EMPLOYEE RESPONSE AS TO OBVIATE
NEED FOR ANY OTHER PROOF OF INTENT.  PP. 45-46. 

(C)  ENCOURAGEMENT OF UNION MEMBERSHIP IS A NATURAL AND FORESEEABLE
CONSEQUENCE OF ANY EMPLOYER DISCRIMINATION AT THE REQUEST OF A UNION. 
P. 52. 

9.  TO ESTABLISH A VIOLATION OF SEC. 8(A)(3) IT IS NOT ESSENTIAL THAT
THERE BE EVIDENCE OF ACTUAL ENCOURAGEMENT OF UNION MEMBERSHIP; A
TENDENCY TO ENCOURAGE IS SUFFICIENT, AND SUCH TENDENCY IS SUFFICIENTLY
ESTABLISHED IF ITS EXISTENCE MAY REASONABLY BE INFERRED FROM THE NATURE
OF THE DISCRIMINATION.  PP. 48-52. 

(A)  INSOFAR AS THE POWER OF THE BOARD TO DRAW REASONABLE INFERENCES
IS CONCERNED, THE 1947 AMENDMENTS OF THE ACT DID NOT ALTER THE PRIOR
LAW.  PP. 49-51. 

(B)  WHERE AN EMPLOYER DISCRIMINATED AGAINST AN EMPLOYEE UPON THE
INSTIGATION OF A UNION, AND THE PURPOSE OF THE UNION IN CAUSING SUCH
DISCRIMINATION WAS CLEARLY TO ENCOURAGE MEMBERS TO PERFORM OBLIGATIONS
OR SUPPOSED OBLIGATIONS OF MEMBERSHIP, IT WAS REASONABLE FOR THE BOARD
TO INFER ENCOURAGEMENT OF UNION MEMBERSHIP.  P. 52. 

(C)  THE ACT DOES NOT REQUIRE, FOR THE PURPOSES OF VIOLATIONS OF SEC.
8(A)(3), THAT THE EMPLOYEES DISCRIMINATED AGAINST BE THE ONES
ENCOURAGED; NOR THAT THE CHANGE IN THE EMPLOYEES'"QUANTUM OF DESIRE" TO
JOIN A UNION HAVE IMMEDIATE MANIFESTATIONS.  P. 51. 

10.  IT WAS WITHIN THE AUTHORITY OF THE BOARD TO PROCEED AGAINST A
UNION FOR A VIOLATION OF SEC. 8(B)(2) AND TO ORDER THE UNION TO PAY
BACK-PAY TO AN EMPLOYEE, WITHOUT JOINING THE EMPLOYER, FINDING HIM
GUILTY OF A VIOLATION OF SEC. 8(A)(3), OR REQUIRING REINSTATEMENT BY
THE EMPLOYER.  PP. 52-55. 

11.  THE 6-MONTH PERIOD OF LIMITATIONS PRESCRIBED IN SEC. 10(B) OF
THE ACT DID NOT BAR THE AMENDMENT OF AN INDIVIDUAL EMPLOYEE'S CHARGE OF
DISCRIMINATION SO AS TO CHARGE THAT THE DISCRIMINATORY TREATMENT
EXTENDED TO ALL NONUNION EMPLOYEES, SINCE THE EMPLOYER HAD ADEQUATE
NOTICE AND WAS NOT PREJUDICED BY THE AMENDMENT.  P. 34, N. 30. 

12.  A QUESTION WHICH WAS NOT PRESENTED IN THE PETITION FOR
CERTIORARI IS NOT PROPERLY BEFORE THE COURT.  P. 37, N. 35. 

RADIO OFFICERS' UNION OF THE COMMERCIAL TELEGRAPHERS UNION, AFL, V.
NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT.* 

*TOGETHER WITH NO. 6, NATIONAL LABOR RELATIONS BOARD V. INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA
ET AL., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT, ARGUED JANUARY 8-9, 1953, REARGUED NOVEMBER 9-10, 1953;
AND NO. 7, GAYNOR NEWS CO., INC. V. NATIONAL LABOR RELATIONS BOARD, ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT, ARGUED APRIL 27, 1953, REARGUED NOVEMBER 10, 1953. 

NO 5.  ON A PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD, 93 N.L.R.B. 1523, THE COURT OF APPEALS GRANTED
ENFORCEMENT.  196 F.2D 960.  THIS COURT GRANTED CERTIORARI.  344 U.S.
852.  AFFIRMED, P. 55. 

NO. 6.  ON A PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD, 94 N.L.R.B. 1494, THE COURT OF APPEALS DENIED
ENFORCEMENT.  196 F.2D 1.  THIS COURT GRANTED CERTIORARI.   344 U.S.
853.  REVERSED, P. 55. 

NO. 7.  ON A PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD, 93 N.L.R.B. 299, THE COURT OF APPEALS GRANTED
ENFORCEMENT.  197 F.2D 719.  THIS COURT GRANTED CERTIORARI.  345 U.S.
902.  AFFIRMED, P. 55. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE NECESSITY FOR RESOLUTION OF CONFLICTING INTERPRETATIONS BY COURTS
OF APPEALS OF SEC. 8(A)(3) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, 61 STAT. 136, 65 STAT. 601, 29 U.S.C. (SUPP. V) SEC.
158(A)(3), IMPELLED US TO GRANT CERTIORARI IN THESE THREE CASES.  THAT
EMPLOYER  ...  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:  ...  ."  (FN1)  THE
COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN NO. 6 (HEREINAFTER REFERRED
TO AS TEAMSTERS), (FN2) FOLLOWING A DECISION OF THE THIRD CIRCUIT,
(FN3) HELD THAT EXPRESS PROOF THAT EMPLOYER DISCRIMINATION HAD THE
EFFECT OF ENCOURAGING OR DISCOURAGING EMPLOYEES IN THEIR ATTITUDE
TOWARD UNION MEMBERSHIP IS AN ESSENTIAL ELEMENT TO ESTABLISH VIOLATION
OF THIS SECTION.  THAT HOLDING CONFLICTS WITH THE HOLDINGS OF THE
SECOND CIRCUIT IN NO. 5 (HEREINAFTER REFERRED TO AS RADIO OFFICERS)
(FN4) AND NO. 7 (HEREINAFTER REFERRED TO AS GAYNOR), (FN5) WITH WHICH
DECISIONS OF THE FIRST (FN6) AND NINTH CIRCUITS (FN7) ACCORD, THAT SUCH
EMPLOYEE ENCOURAGEMENT OR DISCOURAGEMENT MAY BE INFERRED FROM THE
NATURE OF THE DISCRIMINATION.  (SEE PART III, P. 48, INFRA.)  IN
REACHING ITS DECISION IN GAYNOR, THE SECOND CIRCUIT ALSO REJECTED THE
CONTENTION, WHICH CONTENTION IS SUPPORTED BY MANY DECISIONS OF THE
COURTS OF APPEALS, (FN8) THAT THERE CAN BE NO VIOLATION OF SEC. 8(A)(3)
UNLESS IT IS SHOWN BY SPECIFIC EVIDENCE THAT THE EMPLOYER INTENDED HIS
DISCRIMINATORY ACTION TO ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP.  THE
SECOND CIRCUIT DETERMINED THAT THE EMPLOYER INTENDED THE NATURAL RESULT
OF HIS DISCRIMINATORY ACTION.  (SEE PART II, P. 42, INFRA.)  MOREOVER,
RADIO OFFICERS AND TEAMSTERS PRESENT CONFLICTING VIEWS BY COURTS OF
APPEALS AS TO THE SCOPE OF THE PHRASE "MEMBERSHIP IN ANY LABOR
ORGANIZATION" IN SEC. 8(A)(3).  THE EIGHTH CIRCUIT RESTRICTS THIS
PHRASE TO "ADHESION TO MEMBERSHIP," I.E., JOINING OR REMAINING ON A
UNION'S MEMBERSHIP ROSTER; THE SECOND CIRCUIT, ON THE OTHER HAND,
INTERPRETS IT TO INCLUDE OBLIGATIONS OF MEMBERSHIP, I.E., BEING A GOOD
UNION MEMBER.  (FN9)  (SEE PART I, P. 39, INFRA.)  RADIO OFFICERS ALSO
RAISES SUBSIDIARY QUESTIONS REGARDING THE INTERRELATIONSHIP OF SEC.
8(A)(3) WITH SEC. 8(B)(2) OF THE ACT WHICH MAKES IT AN UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS "TO CAUSE OR ATTEMPT TO
CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN EMPLOYEE IN VIOLATION OF
SUBSECTION 8(A)(3)  ...  ."  (FN10)  (SEE PART IV, P. 52, INFRA.) 
THESE CASES WERE ARGUED LAST TERM, AND, UPON OUR ORDER, (FN11) REARGUED
THIS TERM.  THEY REACHED US IN THE FOLLOWING MANNER.  (FN12) 

TEAMSTERS.  UPON THE BASIS OF A CHARGE FILED BY FRANK BOSTON, A TRUCK
DRIVER EMPLOYED BY BYERS TRANSPORTATION COMPANY AND A MEMBER OF LOCAL
UNION NO. 41, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, A.F.L., THE
GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD ISSUED A
COMPLAINT AGAINST THE UNION ALLEGING VIOLATION OF SECS. 8(B)(1)(A)
(FN13) AND 8(B)(2) OF THE NATIONAL LABOR RELATIONS ACT BY CAUSING THE
COMPANY TO DISCRIMINATE AGAINST BOSTON BY REDUCING HIS SENIORITY
STANDING BECAUSE OF BOSTON'S DELINQUENCY IN PAYING HIS UNION DUES.  A
HEARING WAS HAD BEFORE A TRIAL EXAMINER, WHOSE INTERMEDIATE REPORT WAS
LARGELY ADOPTED BY THE BOARD (FN14) WITH ONE MEMBER DISSENTING. 

THE BOARD FOUND THAT THE UNION, AS EXCLUSIVE BARGAINING
REPRESENTATIVE OF THE TEAMSTERS IN THE COMPANY'S EMPLOY, HAD IN 1949
NEGOTIATED A COLLECTIVE-BARGAINING AGREEMENT WITH THE COMPANY WHICH
GOVERNED WORKING CONDITIONS ON ALL OVER-THE-ROAD OPERATIONS OF THE
COMPANY.  (FN15)  THIS AGREEMENT ESTABLISHED A SENIORITY SYSTEM UNDER
WHICH THE UNION WAS TO FURNISH PERIODICALLY TO THE COMPANY A SENIORITY
LIST AND PROVIDED THAT "ANY CONTROVERSY OVER THE SENIORITY STANDING OF
ANY EMPLOYEE ON THIS LIST SHALL BE REFERRED TO THE UNION FOR
SETTLEMENT."  UNION SECURITY PROVISIONS OF THE AGREEMENT WERE NOT
EFFECTIVE DUE TO LACK OF THE AUTHORIZATION THEN REQUIRED BY SEC.
8(A)(3) OF THE ACT.  (FN16)  THE SENIORITY LIST THEREFORE INCLUDED BOTH
UNION MEMBERS AND NONMEMBERS.  EACH NEW EMPLOYEE OF THE COMPANY, AFTER
A THIRTY-DAY TRIAL PERIOD, WAS PLACED AT THE BOTTOM OF THIS LIST, AND
SUCH EMPLOYEE WOULD GRADUALLY ADVANCE IN POSITION AS SENIOR MEMBERS
WERE EITHER REMOVED FROM THE LIST OR REDUCED IN THEIR POSITION ON IT.
POSITION UPON THE SENIORITY LIST GOVERNED THE ORDER OF TRUCK-DRIVING
ASSIGNMENTS, THE QUALITY OF SUCH ASSIGNMENTS, AND THE ORDER OF LAYOFF. 

THE BYLAWS OF TEAMSTERS LOCAL UNION NO. 41 PROVIDED THAT "ANY MEMBER,
UNDER CONTRACT, ONE MONTH IN ARREARS FOR DUES SHALL FORFEIT ALL
SENIORITY RIGHTS  ...  ."  (FN17)  A MEMBER'S DUES WERE PAYABLE ON THE
FIRST DAY OF EACH MONTH, AND HE WAS DEEMED "IN ARREARS" FOR ANY MONTH'S
DUES ON THE SECOND DAY OF THE FOLLOWING MONTH.  BOSTON DID NOT PAY HIS
DUES FOR JUNE 1950 UNTIL JULY 5, 1950.  WHEN THE UNION TRANSMITTED A
NEW SENIORITY LIST TO THE COMPANY ON THE FOLLOWING JULY 15, BOSTON, WHO
HAD PREVIOUSLY BEEN EIGHTEENTH ON THE LIST, WAS REDUCED TO FIFTY
FOURTH, THE BOTTOM POSITION ON THE LIST.  AS A RESULT OF SUCH REDUCTION
BOSTON WAS DENIED DRIVING ASSIGNMENTS HE WOULD OTHERWISE HAVE OBTAINED
AND FOR WHICH HE WOULD HAVE RECEIVED COMPENSATION. 

UPON THESE FACTS A MAJORITY OF THE BOARD FOUND THAT THE UNION HAD
VIOLATED SECS. 8(B)(1)(A) AND 8(B)(2) OF THE ACT.  AS TO THE FORMER,
THE BOARD HELD THAT THE UNION'S REDUCTION OF BOSTON'S SENIORITY
RESTRAINED AND COERCED HIM IN THE EXERCISE OF HIS RIGHT TO REFRAIN FROM
ASSISTING A LABOR ORGANIZATION GUARANTEED BY SEC. 7.  (FN18)  THE BOARD
HELD THAT, "ABSENT A VALID CONTRACTUAL UNION-SECURITY PROVISION, BOSTON
HAD THE ABSOLUTE PROTECTED RIGHT UNDER THE ACT TO DETERMINE HOW HE
WOULD HANDLE HIS UNION AFFAIRS WITHOUT RISKING ANY IMPAIRMENT OF HIS
EMPLOYMENT RIGHTS AND THAT THE UNION HAD NO RIGHT AT ANY TIME WHETHER
BOSTON WAS A MEMBER OR NOT A MEMBER TO MAKE HIS EMPLOYMENT STATUS TO
ANY DEGREE CONDITIONAL UPON THE PAYMENT OF DUES  ...  ."  AS TO THE
LATTER, THE BOARD CONCLUDED THAT THE UNION HAD CAUSED THE COMPANY TO
DISCRIMINATE AGAINST BOSTON AND ADOPTED THE TRIAL EXAMINER'S FINDING
THAT "THE NORMAL EFFECT OF THE DISCRIMINATION AGAINST BOSTON WAS TO
ENCOURAGE NONMEMBERS TO JOIN THE UNION, AS WELL AS MEMBERS TO RETAIN
THEIR GOOD STANDING IN THE UNION, A POTENT ORGANIZATION WHOSE
ASSISTANCE IS TO BE SOUGHT AND WHOSE OPPOSITION IS TO BE AVOIDED.  THE
EMPLOYER'S CONDUCT TENDED TO ENCOURAGE MEMBERSHIP IN THE UNION.  (FN19)
ITS DISCRIMINATION AGAINST BOSTON HAD THE FURTHER EFFECT OF ENFORCING
RULES PRESCRIBED BY THE UNION, THEREBY STRENGTHENING THE UNION IN ITS
CONTROL OVER ITS MEMBERS AND ITS DEALINGS WITH THEIR EMPLOYERS AND WAS
THUS CALCULATED TO ENCOURAGE ALL MEMBERS TO RETAIN THEIR MEMBERSHIP AND
GOOD STANDING EITHER THROUGH FEAR OF THE CONSEQUENCES OF LOSING
MEMBERSHIP OR SENIORITY PRIVILEGES OR THROUGH HOPE OF ADVANTAGE IN
STAYING IN  ...  ."  THE BOARD ENTERED AN ORDER REQUIRING THE UNION TO
CEASE AND DESIST FROM THE UNFAIR LABOR PRACTICES FOUND AND FROM RELATED
CONDUCT; TO NOTIFY BOSTON AND THE COMPANY THAT THE UNION WITHDRAWS ITS
REQUEST FOR THE REDUCTION OF BOSTON'S SENIORITY AND THAT IT REQUESTS
THE COMPANY TO OFFER TO RESTORE BOSTON TO HIS FORMER STATUS; TO MAKE
BOSTON WHOLE FOR ANY LOSSES OF PAY RESULTING FROM THE DISCRIMINATION;
AND TO POST APPROPRIATE NOTICES OF COMPLIANCE. 

THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT DENIED THE BOARD'S
PETITION TO ENFORCE ITS ORDER.  (FN20)  THE COURT HELD THAT "THE
EVIDENCE HERE ABUNDANTLY SUPPORTS THE FINDING OF THE BOARD THAT THE
RESPONDENT CAUSED OR ATTEMPTED TO CAUSE THE EMPLOYER TO DISCRIMINATE
AGAINST BOSTON IN REGARD TO 'TENURE  ...  OR CONDITION OF EMPLOYMENT,'"
BUT "DISCRIMINATION ALONE IS NOT SUFFICIENT" AND "WE CAN FIND NO
SUBSTANTIAL EVIDENCE TO SUPPORT THE CONCLUSION THAT THE DISCRIMINATION
...  DID OR WOULD ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR
ORGANIZATION."  THIS CONCLUSION WAS REACHED BECAUSE "THE TESTIMONY OF
BOSTON  ...  SHOWS CLEARLY THAT THIS ACT NEITHER ENCOURAGED NOR
DISCOURAGED HIS ADHESION TO MEMBERSHIP IN THE RESPONDENT UNION" (FN21)
AND BECAUSE, ASSUMING THE EFFECT OF THE DISCRIMINATION ON OTHER
EMPLOYEES WAS RELEVANT, THE COURT FOUND NO EVIDENCE TO SUPPORT A
CONCLUSION THAT SUCH EMPLOYEES WERE SO ENCOURAGED OR DISCOURAGED.  WE
GRANTED THE BOARD'S PETITION FOR CERTIORARI.  (FN22) 

RADIO OFFICERS.  UPON THE BASIS OF A CHARGE FILED BY WILLIAM
CHRISTIAN FOWLER, A MEMBER OF THE RADIO OFFICERS' UNION OF THE
COMMERCIAL TELEGRAPHERS UNION, A.F.L., THE GENERAL COUNSEL OF THE
NATIONAL LABOR RELATIONS BOARD ISSUED A COMPLAINT AGAINST THE UNION
ALLEGING VIOLATION OF SECS. 8(B)(1)(A) AND 8(B)(2) OF THE ACT BY
CAUSING THE A.H. BULL STEAMSHIP COMPANY TO DISCRIMINATORILY REFUSE ON
TWO OCCASIONS TO EMPLOY FOWLER.  NO COMPLAINT WAS ISSUED AGAINST THE
COMPANY BECAUSE FOWLER FILED NO CHARGE AGAINST IT.  FOLLOWING THE USUAL
PROCEEDINGS UNDER THE ACT, A HEARING WAS HAD BEFORE A TRIAL EXAMINER,
WHOSE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS WITH CERTAIN ADDITIONS
WERE ADOPTED BY THE BOARD.  (FN23) 

THE BOARD FOUND THAT AT THE TIME THE TRANSACTIONS GIVING RISE TO THIS
CASE OCCURRED THE UNION HAD A COLLECTIVE-BARGAINING CONTRACT WITH A
NUMBER OF STEAMSHIP CONCERNS INCLUDING THE BULL STEAMSHIP COMPANY
COVERING THE EMPLOYMENT OF RADIO OFFICERS ON SHIPS OF THE CONTRACTING
COMPANIES.  PERTINENT PROVISIONS IN THIS CONTRACT ARE: 

"SECTION 1.  THE COMPANY AGREES WHEN VACANCIES OCCUR NECESSITATING
THE EMPLOYMENT OF RADIO OFFICERS, TO SELECT SUCH RADIO OFFICERS WHO ARE
MEMBERS OF THE UNION IN GOOD STANDING, WHEN AVAILABLE, ON VESSELS
COVERED BY THIS AGREEMENT, PROVIDED SUCH MEMBERS ARE IN THE OPINION OF
THE COMPANY QUALIFIED TO FILL SUCH VACANCIES." 

"SECTION 6.  THE COMPANY SHALL HAVE THE RIGHT OF FREE SELECTION OF
ALL ITS RADIO OFFICERS AND WHEN MEMBERS OF THE UNION ARE TRANSFERRED,
PROMOTED, OR HIRED THE COMPANY AGREES TO TAKE APPROPRIATE MEASURES TO
ASSURE THAT SUCH MEMBERS ARE IN GOOD STANDING, AND THE UNION AGREES TO
GRANT ALL MEMBERS OF THE UNION IN GOOD STANDING THE NECESSARY
'CLEARANCE' FOR THE POSITION TO WHICH THE RADIO OFFICER HAS BEEN
ASSIGNED.  IF A MEMBER IS NOT IN GOOD STANDING, THE UNION WILL SO
NOTIFY THE COMPANY IN WRITING." 

THE UNION'S CONTENTION THAT THIS CONTRACT PROVIDED FOR A HIRING HALL
UNDER WHICH COMPLETE CONTROL OVER SELECTION OF RADIO OFFICERS TO BE
HIRED BY ANY COMPANY WAS GIVEN TO THE UNION WAS REJECTED BY THE TRIAL
EXAMINER AND BY A MAJORITY OF THE BOARD.  SUCH AN AGREEMENT WOULD HAVE
LEGALIZED THE ACTIONS OF THE UNION IN THIS CASE.  (FN24)  BUT THE BOARD
CONCLUDED, PRIMARILY FROM THE LAST SENTENCE OF SEC. 6 OF THE CONTRACT,
THAT THE CONTRACT "WAS CLEAR ON ITS FACE AND DID NOT PROVIDE FOR ANY
HIRING HALL ARRANGEMENT" AND THAT IT THEREFORE WAS NOT IMPROPER FOR THE
TRIAL EXAMINER TO EXCLUDE EVIDENCE THAT GENERAL, ALTHOUGH NOT
UNIVERSAL, PRACTICE HAD BEEN FOR RADIO OFFICERS TO BE ASSIGNED TO
EMPLOYERS BY THE UNION. 

THE BOARD ALSO FOUND THAT:  ON FEBRUARY 24, 1948, THE COMPANY
TELEGRAPHED AN OFFER OF A JOB AS RADIO OFFICER ON THE COMPANY'S SHIP
S.S. FRANCES TO FOWLER, WHO HAD OFTEN PREVIOUSLY BEEN EMPLOYED BY THE
COMPANY; FOWLER HAD NOTIFIED THE COMPANY THAT HE WOULD ACCEPT THE JOB;
THE COMPANY THEN INFORMED KOZEL, THE RADIO OFFICER ON THE PREVIOUS
VOYAGE OF THE SHIP, THAT HE WAS BEING REPLACED BY "A MAN WITH SENIOR
SERVICE IN THE COMPANY"; FOWLER REPORTED TO THE FRANCES WITHOUT SEEKING
CLEARANCE FROM THE UNION AND KOZEL REPORTED SUCH ACTION TO THE UNION;
THE UNION SECRETARY WIRED FOWLER THAT HE HAD BEEN SUSPENDED FROM
MEMBERSHIP FOR "BUMPING" ANOTHER MEMBER AND TAKING A JOB WITHOUT
CLEARANCE AND NOTIFIED THE COMPANY THAT FOWLER WAS NOT IN GOOD STANDING
IN THE UNION; THE UNION SECRETARY HAD NO AUTHORITY TO EFFECT SUCH A
SUSPENSION, THE SUSPENSION WAS VOID AND FOWLER WAS IN GOOD STANDING IN
THE UNION AT ALL TIMES MATERIAL IN THIS CASE; (FN25) EXPRESS REQUESTS
TO THE UNION FOR CLEARANCE OF FOWLER FOR EMPLOYMENT ON THE FRANCES BY
THE COMPANY AND BY FOWLER WERE SUBSEQUENTLY REFUSED, THE UNION
SECRETARY STATING THAT HE WOULD NEVER AGAIN CLEAR FOWLER FOR A POSITION
WITH THAT COMPANY ALTHOUGH FOWLER WOULD BE CLEARED FOR JOBS WITH OTHER
EMPLOYERS; UNABLE TO OBTAIN CLEARANCE FOR FOWLER, THE COMPANY GAVE THE
JOB TO ANOTHER MAN SUPPLIED BY THE UNION, AND FOWLER RETURNED TO HIS
HOME IN FLORIDA; ON APRIL 22, 1948, FOWLER RETURNED TO NEW YORK AND
AGAIN ADVISED THE COMPANY THAT HE WAS AVAILABLE FOR WORK BEFORE
REPORTING TO THE UNION; THE UNION SECRETARY TOLD FOWLER HE WAS BEING
MADE "A COMPANY STIFF" AND ADHERED TO HIS POSITION THAT HE WOULD NOT
CLEAR FOWLER FOR WORK WITH THAT COMPANY; CLEARANCE SOUGHT BY THE
COMPANY FOR FOWLER FOR A JOB ON THE S.S. EVELYN WAS SUBSEQUENTLY
REFUSED, AND ANOTHER MAN WAS DISPATCHED TO THE JOB BY THE UNION. 

UPON THESE FACTS A MAJORITY OF THE BOARD FOUND THAT THE UNION HAD
VIOLATED SECS. 8(B)(1)(A) AND 8(B)(2).  THE BOARD REJECTED THE UNION'S
DEFENSE THAT THE UNION SECURITY PROVISION OF THE CONTRACT, PREFERENTIAL
HIRING FOR MEMBERS IN GOOD STANDING, IMMUNIZED THE UNION'S ACTION. 
THEY FOUND THAT FOWLER WAS IN GOOD STANDING AT ALL TIMES
NOTWITHSTANDING HIS SUSPENSION BY THE UNION SECRETARY, AND THAT
CONFORMITY WITH THE UNION'S HIRING-HALL RULES AND PROCEDURES WAS NOT
ALSO REQUIRED BY THE CONTRACT.  THUS THE BOARD CONCLUDED THAT THE
UNION, BY REFUSING TO CLEAR FOWLER IN BOTH FEBRUARY AND APRIL,
RESTRAINED AND COERCED FOWLER IN HIS STATUTORY RIGHT TO REFRAIN FROM
OBSERVANCE OF THE UNION'S RULES, AND CAUSED THE COMPANY TO DISCRIMINATE
AGAINST FOWLER BY DENYING HIM EMPLOYMENT.  THE BOARD ADOPTED THE TRIAL
EXAMINER'S FINDING THAT "THE NORMAL EFFECT OF THE DISCRIMINATION
AGAINST FOWLER WAS TO ENFORCE NOT ONLY HIS OBEDIENCE AS A MEMBER, OF
SUCH RULES AS THE RESPONDENT MIGHT PRESCRIBE, BUT ALSO THE OBEDIENCE OF
ALL HIS FELLOW MEMBERS.  IT THEREBY STRENGTHENED THE RESPONDENT BOTH IN
ITS CONTROL OF ITS MEMBERS FOR THEIR GENERAL, MUTUAL ADVANTAGE, AND IN
ITS DEALINGS WITH THEIR EMPLOYERS AS THEIR REPRESENTATIVE.  IT THUS
ENCOURAGED NON-MEMBERS TO JOIN IT AS A STRONG ORGANIZATION WHOSE FAVOR
AND HELP WAS TO BE SOUGHT AND WHOSE OPPOSITION WAS TO BE AVOIDED.  IN
ITS EFFECT UPON NONMEMBERS ALONE, IT MUST THEREFORE BE REGARDED AS
ENCOURAGING MEMBERSHIP IN THE RESPONDENT.  FINALLY, BY ITS
DEMONSTRATION OF THE RESPONDENT'S STRENGTH, THE DISCRIMINATION IN THE
PRESENT CASE ALSO HAD THE NORMAL EFFECT OF ENCOURAGING FOWLER AND OTHER
MEMBERS TO RETAIN THEIR MEMBERSHIP IN THE RESPONDENT EITHER THROUGH
FEAR OF THE CONSEQUENCES OF DROPPING OUT OF MEMBERSHIP OR THROUGH HOPE
OF ADVANTAGE IN STAYING IN." 

THE BOARD ENTERED AN ORDER REQUIRING THE UNION TO CEASE AND DESIST
FROM THE UNFAIR LABOR PRACTICES FOUND AND FROM RELATED CONDUCT; TO
NOTIFY FOWLER AND THE COMPANY THAT IT WITHDRAWS OBJECTION TO HIS
EMPLOYMENT AND REQUESTS THE COMPANY TO OFFER HIM EMPLOYMENT AS A RADIO
OFFICER; TO MAKE FOWLER WHOLE FOR ANY LOSSES OF PAY RESULTING FROM THE
DISCRIMINATION, AND TO POST APPROPRIATE NOTICES OF COMPLIANCE. 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED THE BOARD'S
FINDINGS AND CONCLUSIONS AND GRANTED THE BOARD'S PETITION FOR
ENFORCEMENT OF ITS ORDER.  (FN26)  THE COURT AGREED THAT THE PROVISIONS
OF THE CONTRACT "PLAINLY GIVE THE COMPANY THE RIGHT TO SELECT THE MAN
IT DESIRES TO HIRE, AND REQUIRE THE UNION TO GRANT 'CLEARANCE' IF THE
MAN THE COMPANY WANTS IS A MEMBER IN GOOD STANDING," THAT "SUCH
PROCEDURE IS NOT A 'HIRING HALL' ARRANGEMENT," (FN27) AND THAT FOWLER
WAS IN GOOD STANDING AT THE TIME OF REFUSAL OF CLEARANCE.  IT REJECTED
THE UNION'S CONTENTION THAT ITS REFUSAL TO CLEAR WAS MERELY A STATEMENT
OF VIEWS CONCERNING BREACH OF ITS RULES AND AS SUCH WAS WITHIN THE
PROTECTION OF SEC. 8(C).  (FN28)  WE AGREE THAT, VIEWING THE RECORD AS
A WHOLE, EACH OF THESE FINDINGS IS SUPPORTED BY SUBSTANTIAL EVIDENCE. 
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS V. LABOR BOARD, 341
U.S. 694; UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474.  AS TO
SECS. 8(B)(2) AND 8(A)(3), THE COURT HELD THAT "REFUSAL OF CLEARANCE
CAUSED THE COMPANY TO DISCRIMINATE AGAINST FOWLER IN REGARD TO HIRE. 
WITHOUT THE NECESSARY CLEARANCE IT COULD NOT ACCEPT HIM AS AN
EMPLOYEE.  THE RESULT WAS TO ENCOURAGE MEMBERSHIP IN THE UNION.  NO
THREATS OR PROMISES TO THE COMPANY WERE NECESSARY  ...  .  WHETHER THE
UNION'S MOTIVE WAS, AS IT ARGUES, TO ENFORCE THE CONTRACT PROVISIONS
AGAINST DISCHARGING SATISFACTORY RADIO OFFICERS SUCH AS KOZEL, IS
IMMATERIAL ...  .  SUCH CONDUCT DISPLAYED TO ALL NON-MEMBERS THE
UNION'S POWER AND THE STRONG MEASURE IT WAS PREPARED TO TAKE TO PROTECT
UNION MEMBERS  ...  ."  THE COURT ALSO HELD THAT "A FINDING THAT THE
UNION HAS VIOLATED SEC. 8(B)(2) CAN BE MADE WITHOUT JOINING THE
EMPLOYER AND FINDING A SEC. 8(A)(3) VIOLATION," AND THAT IT WAS PROPER
TO ENTER A BACK-PAY ORDER AGAINST THE UNION WITHOUT ORDERING
REINSTATEMENT BY THE EMPLOYER.  WE GRANTED THE UNION'S PETITION FOR
CERTIORARI.  (FN29) 

GAYNOR.  UPON THE BASIS OF CHARGES FILED BY SHELDON LONER, A NONUNION
EMPLOYEE OF GAYNOR NEWS COMPANY, THE GENERAL COUNSEL OF THE BOARD
ISSUED A COMPLAINT AGAINST THE COMPANY ALLEGING INTER ALIA VIOLATION OF
SECS. 8(A)(1), (2) AND (3) (FN30) OF THE ACT BY GRANTING RETROACTIVE
WAGE INCREASES AND VACATION PAYMENTS TO EMPLOYEES WHO WERE MEMBERS OF
THE NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY AND
REFUSING SUCH BENEFITS TO OTHER EMPLOYEES BECAUSE THEY WERE NOT UNION
MEMBERS.   THE BOARD ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE TRIAL EXAMINER WITH CERTAIN ADDITIONS.  (FN31) 

THE BOARD FOUND THAT IN 1946 THE COMPANY, ENGAGED IN THE WHOLESALE
DISTRIBUTION AND DELIVERY OF NEWSPAPERS AND PERIODICALS, ENTERED INTO A
COLLECTIVE-BARGAINING AGREEMENT RESPECTING DELIVERY-DEPARTMENT
EMPLOYEES WITH THE UNION.  THIS AGREEMENT PROVIDED FOR SPECIFIED WAGES
AND PAID VACATIONS, AND ALSO PROVIDED FOR A CLOSED SHOP, I.E.,
RESTRICTING EMPLOYMENT BY THE COMPANY TO MEMBERS OF THE UNION.  THE
AGREEMENT, HOWEVER, PERMITTED THE EMPLOYMENT BY THE COMPANY OF NONUNION
EMPLOYEES PENDING SUCH TIME AS THE UNION COULD SUPPLY UNION EMPLOYEES. 
THIS PROVISION WAS NECESSARY BECAUSE THE UNION WAS CLOSED, ORDINARILY
ADMITTING TO MEMBERSHIP ONLY FIRST-BORN LEGITIMATE SONS OF MEMBERS. 
THE COMPANY AT ALL PERTINENT TIMES HAD NONUNION AS WELL AS UNION
EMPLOYEES IN ITS DELIVERY DEPARTMENT.  THIS ORIGINAL AGREEMENT WAS
SUBSEQUENTLY EXTENDED TO 1948 AND A SUPPLEMENTARY AGREEMENT WAS
EXECUTED BY THE PARTIES IN 1947 PROVIDING THAT IN THE EVENT THE PARTIES
NEGOTIATED A NEW CONTRACT, THE WAGE RATES SET THEREIN WOULD BE
RETROACTIVE FOR THREE MONTHS.  IN OCTOBER 1948 THE COMPANY AND THE
UNION ENTERED INTO SUCH A NEW CONTRACT WHICH INCLUDED AN INVALID UNION
SECURITY CLAUSE (FN32) AND PROVIDED FOR INCREASED WAGE AND VACATION
BENEFITS.  IN THIS AGREEMENT THE COMPANY EXPRESSLY RECOGNIZED THE UNION
AS EXCLUSIVE BARGAINING AGENT OF ALL EMPLOYEES IN THE DELIVERY
DEPARTMENT.  IN COMPLIANCE WITH THE 1947 SUPPLEMENTARY AGREEMENT, THE
COMPANY IN NOVEMBER 1948 MADE LUMP-SUM PAYMENTS TO ITS UNION EMPLOYEES
OF THE DIFFERENTIAL BETWEEN THE OLD AND NEW WAGE RATES FOR THE THREE
MONTHS' RETROACTIVE PERIOD.  FURTHER PAYMENTS WERE SUBSEQUENTLY MADE TO
UNION MEMBERS TO COMPENSATE FOR DIFFERENCES IN VACATION BENEFITS UNDER
THE TWO CONTRACTS EVEN THOUGH THE SUPPLEMENTARY AGREEMENT MADE NO
REFERENCE TO SUCH BENEFITS.  THE COMPANY REFUSED TO MAKE SIMILAR
PAYMENTS TO ANY OF ITS NONUNION EMPLOYEES ON THE GROUNDS THAT IT WAS
NOT CONTRACTUALLY BOUND TO DO SO, (FN33) AND, IN ITS BUSINESS JUDGMENT,
DID NOT CHOOSE TO DO SO.   THE BOARD CONCLUDED THAT, SINCE NOTHING IN
THE SUPPLEMENTARY AGREEMENT PROHIBITED EQUAL PAYMENT TO NONUNION
EMPLOYEES, "THE CONTRACT AFFORDS NO DEFENSE TO THE ALLEGATION THAT THE
RESPONDENT UNLAWFULLY ENGAGED IN DISPARATE TREATMENT OF EMPLOYEES ON
THE BASIS OF UNION MEMBERSHIP OR LACK OF IT  ...  ," (FN34) AND HELD
THAT THE COMPANY HAD VIOLATED THE ACT AS ALLEGED.  THE COMPANY'S
ARGUMENTS THAT ITS ACTIONS HAD NOT VIOLATED SEC. 8(A)(3) BECAUSE "THE
RECORD IS BARREN OF ANY EVIDENCE THAT THE DISCRIMINATORY TREATMENT OF
NON-UNION EMPLOYES ENCOURAGED THEM TO JOIN THE UNION" OR HAD SUCH
PURPOSE, AND THAT THERE COULD BE NO SUCH EVIDENCE BECAUSE ALL THE
NONUNION EMPLOYEES HAD PREVIOUSLY SOUGHT MEMBERSHIP IN THE UNION AND
BEEN DENIED BECAUSE OF THE UNION'S CLOSED POLICY, WERE REJECTED.  THE
BOARD ADOPTED THE TRIAL EXAMINER'S FINDING THAT "IT IS OBVIOUS THAT THE
DISCRIMINATION WITH RESPECT TO RETROACTIVE WAGES AND VACATION BENEFITS
HAD THE NATURAL AND PROBABLE EFFECT NOT ONLY OF ENCOURAGING NONUNION
EMPLOYEES TO JOIN THE UNION, BUT ALSO OF ENCOURAGING UNION EMPLOYEES TO
RETAIN THEIR UNION MEMBERSHIP."  WE ASSUME THIS CONCEDES THAT THE
EMPLOYER ACTED FROM SELF-INTEREST AND NOT TO ENCOURAGE UNIONISM.  AN
ORDER WAS ENTERED REQUIRING THE COMPANY TO CEASE AND DESIST FROM THE
UNFAIR LABOR PRACTICES FOUND AND FROM RELATED CONDUCT; TO MAKE WHOLE
LONER AND ALL OTHER NONUNION EMPLOYEES SIMILARLY SITUATED FOR ANY LOSS
OF PAY THEY HAVE SUFFERED BY REASON OF THE COMPANY'S DISCRIMINATION
AGAINST THEM; AND TO POST APPROPRIATE NOTICES OF COMPLIANCE. 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT, UPON THE BOARD'S
PETITION, GRANTED ENFORCEMENT OF ALL PARTS OF THE ORDER PERTINENT
HERE.  (FN35)  ON THE ISSUE OF THE LEGALITY OF THE DISCRIMINATION, THE
COURT DISTINGUISHED LABOR BOARD V. RELIABLE NEWSPAPER DELIVERY, INC.,
187 F.2D 547, INVOLVING ACTIONS CLOSELY PARALLELING THE COMPANY'S HERE
BY ANOTHER COMPANY DEALING WITH THE SAME UNION, STATING, "THERE
DISCRIMINATION RESULTED FROM WHAT THE COURT CONSIDERED THE ENTIRELY
LEGAL ACTION OF THE MINORITY UNION IN ASKING SPECIAL BENEFITS FOR ITS
MEMBERS ONLY.  THE UNION MADE NO PRETENSE OF REPRESENTING THE MAJORITY
OF EMPLOYEES OR OF BEING THE EXCLUSIVE BARGAINING AGENT IN THE PLANT. 
THE OTHER NON-UNION EMPLOYEES, REASONED THE COURT, WERE QUITE ABLE TO
ELECT THEIR OWN REPRESENTATIVE AND ASK FOR SIMILAR BENEFITS.  NOT SO
HERE.  THE UNION HERE REPRESENTED THE MAJORITY OF EMPLOYEES AND WAS THE
EXCLUSIVE BARGAINING AGENT FOR THE PLANT.  ACCORDINGLY, IT COULD NOT
BETRAY THE TRUST OF NON-UNION MEMBERS, BY BARGAINING FOR SPECIAL
BENEFITS TO UNION-MEMBERS ONLY, THUS LEAVING THE NON-UNION MEMBERS WITH
NO MEANS OF EQUALIZING THE SITUATION."  197 F.2D, AT 722.  THE COURT
CONTINUED, IN ANSWER TO THE COMPANY'S CONTENTION THAT ITS ACTION "HAD
NEITHER THE PURPOSE NOR THE EFFECT REQUIRED BY SEC. 8(A)(3)":
"DISCRIMINATORY CONDUCT, SUCH AS THAT PRACTICED HERE, IS INHERENTLY
CONDUCIVE TO INCREASED UNION MEMBERSHIP.  IN THIS RESPECT, THERE CAN BE
LITTLE DOUBT THAT IT 'ENCOURAGES' UNION MEMBERSHIP, BY INCREASING THE
NUMBER OF WORKERS WHO WOULD LIKE TO JOIN AND/OR THEIR QUANTUM OF
DESIRE.  IT MAY WELL BE THAT THE UNION, FOR REASONS OF ITS OWN, DOES
NOT WANT NEW MEMBERS AT THE TIME OF THE EMPLOYER'S VIOLATIONS AND WILL
REJECT ALL APPLICANTS.  BUT THE FACT REMAINS THAT THESE REJECTED
APPLICANTS HAVE BEEN, AND WILL CONTINUE TO BE, 'ENCOURAGED,' BY THE
DISCRIMINATORY BENEFITS, IN THEIR DESIRE FOR MEMBERSHIP.  THIS BACKLOG
OF DESIRE MAY WELL, AS THE BOARD ARGUES, RESULT IN ACTION BY NON
MEMBERS TO 'SEEK TO BREAK DOWN MEMBERSHIP BARRIERS BY ANY ONE OF A
NUMBER OF STEPS, RANGING FROM BRIBERY TO LEGAL ACTION.'  A UNION'S
INTERNAL POLITICS ARE BY NO MEANS STATIC; CHANGES IN UNION ENTRANCE
RULES MAY COME AT ANY TIME.  IF AND WHEN THE BARRIERS ARE LET DOWN,
AMONG THE NEW AND NOW SUCCESSFUL APPLICANTS WILL ALMOST SURELY BE LARGE
GROUPS OF WORKERS PREVIOUSLY 'ENCOURAGED' BY THE EMPLOYER'S ILLEGAL
DISCRIMINATION.  WE DO NOT BELIEVE THAT, IF THE UNION-ENCOURAGING
EFFECT OF DISCRIMINATORY TREATMENT IS NOT FELT IMMEDIATELY, THE
EMPLOYER MUST BE ALLOWED TO ESCAPE ALTOGETHER.  IF THERE IS A
REASONABLE LIKELIHOOD THAT THE EFFECTS MAY BE FELT YEARS LATER, THEN A
REASONABLE INTERPRETATION OF THE ACT DEMANDS THAT THE EMPLOYER BE
DEEMED A VIOLATOR."  197 F.2D, AT 722-723.  WE GRANTED THE COMPANY'S
PETITION FOR CERTIORARI.  (FN36)

                                 I. MEANING OF "MEMBERSHIP." 

THE LANGUAGE EMPLOYED BY CONGRESS IN ENACTING THE HEART OF SEC.
8(A)(3) IS IDENTICAL WITH THAT OF THE PREDECESSOR SECTION IN THE WAGNER
ACT, SEC. 8(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  ...  ."  49 STAT.
452.  THESE ARE THE FIRST CASES TO REACH US INVOLVING APPLICATION OF
THIS SECTION OR ITS PREDECESSOR TO THE PROBLEM OF ENCOURAGEMENT OF
UNION MEMBERSHIP BY EMPLOYERS.  WE HAVE ON MANY OCCASIONS CONSIDERED
ASPECTS OF THE APPLICATION OF THESE SECTIONS TO ACTIONS BY EMPLOYERS
AIMED AT DISCOURAGEMENT OF UNION MEMBERSHIP.  (FN37)  THE PRINCIPLES
INVOKED IN THOSE CASES ARE, OF COURSE, EQUALLY APPLICABLE TO BOTH
ASPECTS OF EMPLOYER DISCRIMINATION, BUT MOST OF THE ISSUES OF STATUTORY
CONSTRUCTION RAISED HERE HAVE NOT PREVIOUSLY BEEN CONSIDERED BY THIS
COURT. 

IN PAST CASES WE HAVE BEEN CALLED UPON TO CLARIFY THE TERMS
"DISCRIMINATION" AND "MEMBERSHIP IN ANY LABOR ORGANIZATION." 
DISCRIMINATION IS NOT CONTESTED IN THESE CASES:  INVOLUNTARY REDUCTION
OF SENIORITY, REFUSAL TO HIRE FOR AN AVAILABLE JOB, AND DISPARATE WAGE
TREATMENT ARE CLEARLY DISCRIMINATORY.  BUT THE SCOPE OF THE PHRASE
"MEMBERSHIP IN ANY LABOR ORGANIZATION" IS IN ISSUE HERE.  SUBJECT TO
LIMITATIONS, (FN38) WE HAVE HELD THAT PHRASE TO INCLUDE DISCRIMINATION
TO DISCOURAGE PARTICIPATION IN UNION ACTIVITIES AS WELL AS TO
DISCOURAGE ADHESION TO UNION MEMBERSHIP.  (FN39)    SIMILAR PRINCIPLES
GOVERN THE INTERPRETATION OF UNION MEMBERSHIP WHERE ENCOURAGEMENT IS
ALLEGED.  THE POLICY OF THE ACT IS TO INSULATE EMPLOYEES' JOBS FROM
THEIR ORGANIZATIONAL RIGHTS.  (FN40)  THUS SECS. 8(A)(3) AND 8(B)(2)
WERE DESIGNED TO ALLOW EMPLOYEES TO FREELY EXERCISE THEIR RIGHT TO JOIN
UNIONS, BE GOOD, BAD, OR INDIFFERENT MEMBERS, OR ABSTAIN FROM JOINING
ANY UNION WITHOUT IMPERILING THEIR LIVELIHOOD.  THE ONLY LIMITATION
CONGRESS HAS CHOSEN TO IMPOSE ON THIS RIGHT IS SPECIFIED IN THE PROVISO
TO SEC. 8(A)(3) WHICH AUTHORIZES EMPLOYERS TO ENTER INTO CERTAIN UNION
SECURITY CONTRACTS, BUT PROHIBITS DISCHARGE UNDER SUCH CONTRACTS IF
MEMBERSHIP "WAS NOT AVAILABLE TO THE EMPLOYEE ON THE SAME TERMS AND
CONDITIONS GENERALLY APPLICABLE TO OTHER MEMBERS" OR IF "MEMBERSHIP WAS
DENIED OR TERMINATED FOR REASONS OTHER THAN THE FAILURE OF THE EMPLOYEE
TO TENDER THE PERIODIC DUES AND THE INITIATION FEES UNIFORMLY REQUIRED
AS A CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP."  (FN41)  LENGTHY
LEGISLATIVE DEBATE PRECEDED THE 1947 AMENDMENT TO THE ACT WHICH THUS
LIMITED PERMISSIBLE EMPLOYER DISCRIMINATION.  (FN42)  THIS LEGISLATIVE
HISTORY CLEARLY INDICATES THAT CONGRESS INTENDED TO PREVENT UTILIZATION
OF UNION SECURITY AGREEMENTS FOR ANY PURPOSE OTHER THAN TO COMPEL
PAYMENT OF UNION DOES AND FEES.  THUS CONGRESS RECOGNIZED THE VALIDITY
OF UNIONS' CONCERN ABOUT "FREE RIDERS," I.E., EMPLOYEES WHO RECEIVE THE
BENEFITS OF UNION REPRESENTATION BUT ARE UNWILLING TO CONTRIBUTE THEIR
SHARE OF FINANCIAL SUPPORT TO SUCH UNION, AND GAVE UNIONS THE POWER TO
CONTRACT TO MEET THAT PROBLEM WHILE WITHHOLDING FROM UNIONS THE POWER
TO CAUSE THE DISCHARGE OF EMPLOYEES FOR ANY OTHER REASON.  (FN43)  THUS
AN EMPLOYER CAN DISCHARGE AN EMPLOYEE FOR NONMEMBERSHIP IN A UNION IF
THE EMPLOYER HAS ENTERED A UNION SECURITY CONTRACT VALID UNDER THE ACT
WITH SUCH UNION, AND IF THE OTHER REQUIREMENTS OF THE PROVISO ARE MET. 
NO OTHER DISCRIMINATION AIMED AT ENCOURAGING EMPLOYEES TO JOIN, RETAIN
MEMBERSHIP, OR STAY IN GOOD STANDING IN A UNION IS CONDONED.  (FN44) 

FROM THE FOREGOING IT IS CLEAR THAT THE EIGHTH CIRCUIT TOO
RESTRICTIVELY INTERPRETED THE TERM "MEMBERSHIP" IN TEAMSTERS.  BOSTON
WAS DISCRIMINATED AGAINST BY HIS EMPLOYER BECAUSE HE WAS DELINQUENT IN
A UNION OBLIGATION.  THUS HE WAS DENIED EMPLOYMENT TO WHICH HE WAS
OTHERWISE ENTITLED, FOR NO REASON OTHER THAN HIS TARDY PAYMENT OF UNION
DUES.  THE UNION CAUSED THIS DISCRIMINATION BY APPLYING A RULE
APPARENTLY AIMED AT ENCOURAGING PROMPT PAYMENT OF DUES.  THE UNION'S
ACTION WAS NOT SANCTIONED BY A VALID UNION SECURITY CONTRACT, AND, IN
ANY EVENT, THE UNION DID NOT CHOOSE TO TERMINATE BOSTON'S MEMBERSHIP
FOR HIS DELINQUENCY.  THUS THE UNION BY REQUESTING SUCH DISCRIMINATION,
AND THE EMPLOYER BY SUBMITTING TO SUCH AN ILLEGAL REQUEST, DEPRIVED
BOSTON OF THE RIGHT GUARANTEED BY THE ACT TO JOIN IN OR ABSTAIN FROM
UNION ACTIVITIES WITHOUT THEREBY AFFECTING HIS JOB.  A FORTIORI THE
SECOND CIRCUIT CORRECTLY CONCLUDED IN RADIO OFFICERS THAT SUCH
ENCOURAGEMENT TO REMAIN IN GOOD STANDING IN A UNION IS PROSCRIBED. 
THUS THAT UNION IN CAUSING THE EMPLOYER TO DISCRIMINATE AGAINST FOWLER
BY DENYING HIM EMPLOYMENT IN ORDER TO COERCE FOWLER INTO FOLLOWING THE
UNION'S DESIRED HIRING PRACTICES DEPRIVED FOWLER OF A PROTECTED RIGHT. 

                II.  A. - NECESSITY FOR PROVING EMPLOYER'S MOTIVE. 

THE LANGUAGE OF SEC. 8(A)(3) IS NOT AMBIGUOUS.  THE UNFAIR LABOR
PRACTICE IS FOR AN EMPLOYER TO ENCOURAGE OR DISCOURAGE MEMBERSHIP BY
MEANS OF DISCRIMINATION.  THUS THIS SECTION DOES NOT OUTLAW ALL
ENCOURAGEMENT OR DISCOURAGEMENT OF MEMBERSHIP IN LABOR ORGANIZATIONS;
ONLY SUCH AS IS ACCOMPLISHED BY DISCRIMINATION IS PROHIBITED.  NOR DOES
THIS SECTION OUTLAW DISCRIMINATION IN EMPLOYMENT AS SUCH; ONLY SUCH
DISCRIMINATION AS ENCOURAGES OR DISCOURAGES MEMBERSHIP IN A LABOR
ORGANIZATION IS PROSCRIBED. 

THE RELEVANCE OF THE MOTIVATION OF THE EMPLOYER IN SUCH
DISCRIMINATION HAS BEEN CONSISTENTLY RECOGNIZED UNDER BOTH SEC. 8(A)(3)
AND ITS PREDECESSOR.  IN THE FIRST CASE TO REACH THE COURT UNDER THE
NATIONAL LABOR RELATIONS ACT, LABOR BOARD V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1, IN WHICH WE UPHELD THE CONSTITUTIONALITY OF SEC.
8(3), WE SAID WITH RESPECT TO LIMITATIONS PLACED UPON EMPLOYERS' RIGHT
TO DISCHARGE BY THAT SECTION THAT "THE EMPLOYER'S TRUE PURPOSE IS THE
SUBJECT OF INVESTIGATION WITH FULL OPPORTUNITY TO SHOW THE FACTS." 
ID., AT 46.  IN ANOTHER CASE THE SAME DAY WE FOUND THE EMPLOYER'S "REAL
MOTIVE" TO BE DECISIVE AND STATED THAT "THE ACT PERMITS A DISCHARGE FOR
ANY REASON OTHER THAN UNION ACTIVITY OR AGITATION FOR COLLECTIVE
BARGAINING WITH EMPLOYEES."  (FN45)  COURTS OF APPEALS HAVE UNIFORMLY
APPLIED THIS CRITERIA, (FN46) AND WRITERS IN THE FIELD OF LABOR LAW
EMPHASIZE THE IMPORTANCE OF THE EMPLOYER'S MOTIVATION TO A FINDING OF
VIOLATION OF THIS SECTION.  (FN47)  MOREOVER, THE NATIONAL LABOR
RELATIONS BOARD IN ITS ANNUAL REPORTS REGULARLY REITERATES THIS
REQUIREMENT IN ITS DISCUSSION OF SEC. 8(A)(3).  FOR EXAMPLE, A RECENT
REPORT STATES THAT "UPON SCRUTINY OF ALL THE FACTS IN A PARTICULAR
CASE, THE BOARD MUST DETERMINE WHETHER OR NOT THE EMPLOYER'S TREATMENT
OF THE EMPLOYEE WAS MOTIVATED BY A DESIRE TO ENCOURAGE OR DISCOURAGE
UNION MEMBERSHIP OR OTHER ACTIVITIES PROTECTED BY THE STATUTE." 
(FN48) 

THAT CONGRESS INTENDED THE EMPLOYER'S PURPOSE IN DISCRIMINATING TO BE
CONTROLLING IS CLEAR.  THE SENATE REPORT ON THE WAGNER ACT SAID:  "OF
COURSE NOTHING IN THE BILL PREVENTS AN EMPLOYER FROM DISCHARGING A MAN
FOR INCOMPETENCE; FROM ADVANCING HIM FOR SPECIAL APTITUDE; OR FROM
DEMOTING HIM FOR FAILURE TO PERFORM."  (FN49)  SENATOR WAGNER SPOKE OF
SEC. 8(3) AS REACHING "THOSE VERY CASES WHERE THE EMPLOYER IS STRONG
ENOUGH TO IMPRESS HIS WILL WITHOUT THE AID OF THE LAW."  (FN50)  WITH
THIS CONSISTENT INTERPRETATION OF THAT SECTION BEFORE IT, CONGRESS, AS
NOTED ABOVE, CHOSE TO RETAIN THE IDENTICAL LANGUAGE IN ITS 1947
AMENDMENTS.  NO SUGGESTION IS FOUND IN EITHER THE REPORTS OR HEARINGS
ON THOSE AMENDMENTS THAT THE SECTION HAD BEEN TOO NARROWLY CONSTRUED,
AND THE HOUSE CONFERENCE REPORT STATES THAT SEC. 8(A)(3) "PROHIBITS AN
EMPLOYER FROM DISCRIMINATING AGAINST AN EMPLOYEE BY REASON OF HIS
MEMBERSHIP OR NONMEMBERSHIP IN A LABOR ORGANIZATION, EXCEPT TO THE
EXTENT THAT HE OBLIGATES HIMSELF TO DO SO UNDER THE TERMS OF A
PERMITTED UNION SHOP OR MAINTENANCE OF MEMBERSHIP CONTRACT."  (FN51)

                        B. - PROOF OF MOTIVE. 

BUT IT IS ALSO CLEAR THAT SPECIFIC EVIDENCE OF INTENT TO ENCOURAGE OR
DISCOURAGE IS NOT AN INDISPENSABLE ELEMENT OF PROOF OF VIOLATION OF
SEC. 8(A)(3).  THIS FACT WAS RECOGNIZED IN THE HOUSE REPORT ON THE
WAGNER ACT WHEN IT WAS STATED THAT UNDER SEC. 8(3) "AGREEMENTS MORE
FAVORABLE TO THE MAJORITY THAN TO THE MINORITY ARE IMPOSSIBLE  ...  ." 
(FN52)  BOTH THE BOARD AND THE COURTS HAVE RECOGNIZED THAT PROOF OF
CERTAIN TYPES OF DISCRIMINATION SATISFIES THE INTENT REQUIREMENT. 
(FN53) THIS RECOGNITION THAT SPECIFIC PROOF OF INTENT IS UNNECESSARY
WHERE EMPLOYER CONDUCT INHERENTLY ENCOURAGES OR DISCOURAGES UNION
MEMBERSHIP IS BUT AN APPLICATION OF THE COMMON-LAW RULE THAT A MAN IS
HELD TO INTEND THE FORESEEABLE CONSEQUENCES OF HIS CONDUCT.  CRAMER V.
UNITED STATES, 325 U.S. 1, 31; NASH V. UNITED STATES, 229 U.S. 373,
376; UNITED STATES V. PATTEN, 226 U.S. 525, 539; AGNEW V. UNITED
STATES, 165 U.S. 36, 50.  THUS AN EMPLOYER'S PROTESTATION THAT HE DID
NOT INTEND TO ENCOURAGE OR DISCOURAGE MUST BE UNAVAILING WHERE A
NATURAL CONSEQUENCE OF HIS ACTION WAS SUCH ENCOURAGEMENT OR
DISCOURAGEMENT.  CONCLUDING THAT ENCOURAGEMENT OR DISCOURAGEMENT WILL
RESULT, IT IS PRESUMED THAT HE INTENDED SUCH CONSEQUENCE.  IN SUCH
CIRCUMSTANCES INTENT TO ENCOURAGE IS SUFFICIENTLY ESTABLISHED.  OUR
DECISION IN REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793,
RELIED UPON BY THE BOARD TO SUPPORT ITS CONTENTION THAT EMPLOYERS'
MOTIVES ARE IRRELEVANT UNDER SEC. 8(A)(3), APPLIED THIS PRINCIPLE. 
THAT DECISION DEALT PRIMARILY WITH THE RIGHT OF THE BOARD TO INFER
DISCOURAGEMENT FROM FACTS PROVEN FOR PURPOSES OF PROOF OF VIOLATION OF
SEC. 8(3).  IN HOLDING THAT DISCHARGES AND SUSPENSIONS OF EMPLOYEES
UNDER COMPANY "NO SOLICITATION" RULES FOR SOLICITING UNION MEMBERSHIP,
IN THE CIRCUMSTANCES DISCLOSED, VIOLATED SEC. 8(3), WE NOTED THAT SUCH
EMPLOYER ACTION WAS NOT "MOTIVATED BY OPPOSITION TO THE PARTICULAR
UNION OR, WE DEDUCE, TO UNIONISM" AND THAT "THERE WAS NO UNION BIAS OR
DISCRIMINATION BY THE COMPANY IN ENFORCING THE RULE."  BUT WE AFFIRMED
THE BOARD'S HOLDING THAT THE RULES INVOLVED WERE INVALID WHEN APPLIED
TO UNION SOLICITATION SINCE THEY INTERFERED WITH THE EMPLOYEES' RIGHT
TO ORGANIZE.  SINCE THE RULES WERE NO DEFENSE AND THE EMPLOYERS
INTENDED TO DISCRIMINATE SOLELY ON THE GROUND OF SUCH PROTECTED UNION
ACTIVITY, IT DID NOT MATTER THAT THEY DID NOT INTEND TO DISCOURAGE
MEMBERSHIP SINCE SUCH WAS A FORESEEABLE RESULT. 

IN GAYNOR, THE SECOND CIRCUIT ALSO PROPERLY APPLIED THIS PRINCIPLE. 
THE COURT THERE HELD THAT DISPARATE WAGE TREATMENT OF EMPLOYEES BASED
SOLELY ON UNION MEMBERSHIP STATUS IS "INHERENTLY CONDUCIVE TO INCREASED
UNION MEMBERSHIP."  IN HOLDING THAT A NATURAL CONSEQUENCE OF
DISCRIMINATION, BASED SOLELY ON UNION MEMBERSHIP OR LACK THEREOF, IS
DISCOURAGEMENT OR ENCOURAGEMENT OF MEMBERSHIP IN SUCH UNION, THE COURT
MERELY RECOGNIZED A FACT OF COMMON EXPERIENCE - THAT THE DESIRE OF
EMPLOYEES TO UNIONIZE IS DIRECTLY PROPORTIONAL TO THE ADVANTAGES
THOUGHT TO BE OBTAINED FROM SUCH ACTION.  NO MORE STRIKING EXAMPLE OF
DISCRIMINATION SO FORESEEABLY CAUSING EMPLOYEE RESPONSE AS TO OBVIATE
THE NEED FOR ANY OTHER PROOF OF INTENT IS APPARENT THAN THE PAYMENT OF
DIFFERENT WAGES TO UNION EMPLOYEES DOING A JOB THAN TO NONUNION
EMPLOYEES DOING THE SAME JOB.  AS NOTED ABOVE, THE HOUSE REPORT ON SEC.
8(3) OF THE WAGNER ACT EMPHASIZED THAT SUCH DISPARATE TREATMENT WAS
IMPOSSIBLE UNDER THE ACT. 

IN GAYNOR IT WAS CONCEDED THAT THE SOLE CRITERION FOR EXTRA PAYMENTS
WAS UNION MEMBERSHIP, AND THE VACATION PAYMENTS WERE ADMITTEDLY
GRATUITOUS.  THE WAGE DIFFERENTIAL PAYMENTS, ON THE OTHER HAND, WERE
BASED UPON THE 1947 SUPPLEMENTARY AGREEMENT WHICH THE COMPANY BELOW
CONTENDED WAS NEGOTIATED SOLELY IN BEHALF OF UNION MEMBERS.  HOWEVER,
THE COURT BELOW HELD THAT THE UNION WAS EXCLUSIVE BARGAINING AGENT FOR
BOTH UNION AND NONUNION EMPLOYEES.  THE COMPANY HAS NOT CHALLENGED THIS
HOLDING, ASSERTING ONLY THAT, EVEN THOUGH THE UNION REPRESENTED ALL
EMPLOYEES, THE COMPANY'S ONLY LIABILITY TO THE NONUNION EMPLOYEES CAN
BE FOR BREACH OF CONTRACT. 

THE UNION'S REPRESENTATIVE STATUS OBVIOUSLY DOES NOT EFFECT THE
LEGALITY OF THE GRATUITOUS PAYMENT.  ACCORDING TO THE REASONING OF THE
SECOND CIRCUIT, HOWEVER, DISPARATE PAYMENTS BASED ON CONTRACT ARE
ILLEGAL ONLY WHEN THE UNION, AS BARGAINING AGENT FOR BOTH UNION AND
NONUNION EMPLOYEES, BETRAYS ITS TRUST AND OBTAINS SPECIAL BENEFITS FOR
THE UNION MEMBERS.  THAT COURT CONSIDERED SUCH ACTION UNFAIR BECAUSE
SUCH EMPLOYEES ARE NOT IN A POSITION TO PROTECT THEIR OWN INTERESTS. 
THUS, IT REASONED, IF A UNION BARGAINS ONLY FOR ITS OWN MEMBERS, IT IS
LEGAL FOR SUCH UNION TO CAUSE AN EMPLOYER TO GIVE, AND FOR SUCH
EMPLOYER TO GIVE, SPECIAL BENEFITS TO THE MEMBERS OF THE UNION FOR IF
NONMEMBERS ARE AGGRIEVED THEY ARE FREE TO BARGAIN FOR SIMILAR BENEFITS
FOR THEMSELVES. 

WE EXPRESS NO OPINION AS TO THE LEGALITY OF DISPARATE PAYMENTS WHERE
THE UNION IS NOT EXCLUSIVE BARGAINING AGENT, SINCE THAT CASE IS NOT
BEFORE US.  WE DO HOLD THAT IN THE CIRCUMSTANCES OF THIS CASE, THE
UNION BEING EXCLUSIVE BARGAINING AGENT FOR BOTH MEMBER AND NONMEMBER
EMPLOYEES, THE EMPLOYER COULD NOT, WITHOUT VIOLATING SEC. 8(A)(3),
DISCRIMINATE IN WAGES SOLELY ON THE BASIS OF SUCH MEMBERSHIP EVEN
THOUGH IT HAD EXECUTED A CONTRACT WITH THE UNION PRESCRIBING SUCH
ACTION.  STATEMENTS THROUGHOUT THE LEGISLATIVE HISTORY OF THE NATIONAL
LABOR RELATIONS ACT EMPHASIZE THAT EXCLUSIVE BARGAINING AGENTS ARE
POWERLESS "TO MAKE AGREEMENTS MORE FAVORABLE TO THE MAJORITY THAN TO
THE MINORITY."  (FN54)  SUCH DISCRIMINATORY CONTRACTS ARE ILLEGAL AND
PROVIDE NO DEFENSE TO AN ACTION UNDER SEC. 8(A)(3).  SEE STEELE V.
LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192; WALLACE CORP. V. LABOR
BOARD, 323 U.S. 248; J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332; ORDER
OF RAILROAD TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, 321 U.S. 342.  CF.
FORD MOTOR CO. V. HUFFMAN, 345 U.S. 330. 

                 III.  POWER OF BOARD TO DRAW INFERENCES. 

PETITIONERS IN GAYNOR AND RADIO OFFICERS CONTEND THAT THE BOARD'S
ORDERS IN THESE CASES SHOULD NOT HAVE BEEN ENFORCED BY THE SECOND
CIRCUIT BECAUSE THE RECORDS DO NOT INCLUDE "INDEPENDENT PROOF THAT
ENCOURAGEMENT OF UNION MEMBERSHIP ACTUALLY OCCURRED."  THE EIGHTH
CIRCUIT SUBSCRIBED TO THIS VIEW THAT SUCH INDEPENDENT PROOF IS REQUIRED
IN TEAMSTERS WHEN IT DENIED ENFORCEMENT OF THE BOARD'S ORDER IN THAT
PROCEEDING ON THE GROUND THAT IT WAS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE OF ENCOURAGEMENT.   THE BOARD ARGUES THAT ACTUAL ENCOURAGEMENT
NEED NOT BE PROVED BUT THAT A TENDENCY TO ENCOURAGE IS SUFFICIENT, AND
"SUCH TENDENCY IS SUFFICIENTLY ESTABLISHED IF ITS EXISTENCE MAY
REASONABLY BE INFERRED FROM THE CHARACTER OF THE DISCRIMINATION." 

WE CONSIDERED THIS PROBLEM IN THE REPUBLIC AVIATION CASE.  TO THE
CONTENTION THAT "THERE MUST BE EVIDENCE BEFORE THE BOARD TO SHOW THAT
THE RULES AND ORDERS OF THE EMPLOYERS INTERFERED WITH AND DISCOURAGED
UNION ORGANIZATION IN THE CIRCUMSTANCES AND SITUATION OF EACH COMPANY,"
WE REPLIED THAT THE STATUTORY PLAN FOR AN ADVERSARY PROCEEDING "DOES
NOT GO BEYOND THE NECESSITY FOR THE PRODUCTION OF EVIDENTIAL FACTS,
HOWEVER, AND COMPEL EVIDENCE AS TO THE RESULTS WHICH MAY FLOW FROM SUCH
FACTS ...  .  AN ADMINISTRATIVE AGENCY WITH POWER AFTER HEARINGS TO
DETERMINE ON THE EVIDENCE IN ADVERSARY PROCEEDINGS WHETHER VIOLATIONS
OF STATUTORY COMMANDS HAVE OCCURRED MAY INFER WITHIN THE LIMITS OF THE
INQUIRY FROM THE PROVEN FACTS SUCH CONCLUSIONS AS REASONABLY MAY BE
BASED UPON THE FACTS PROVEN.  ONE OF THE PURPOSES WHICH LEAD TO THE
CREATION OF SUCH BOARDS IS TO HAVE DECISIONS BASED UPON EVIDENTIAL
FACTS UNDER THE PARTICULAR STATUTE MADE BY EXPERIENCED OFFICIALS WITH
AN ADEQUATE APPRECIATION OF THE COMPLEXITIES OF THE SUBJECT WHICH IS
ENTRUSTED TO THEIR ADMINISTRATION  ...  ."  324 U.S., AT 798, 800.  SEE
ALSO LABOR BOARD V. NEVADA CONSOLIDATED COPPER CORP., 316 U.S. 105;
LABOR BOARD V. LINK-BELT CO., 311 U.S. 584.  IN THESE CASES WE BUT
RESTATED A RULE FAMILIAR TO THE LAW AND FOLLOWED BY ALL FACT-FINDING
TRIBUNALS - THAT IT IS PERMISSIBLE TO DRAW ON EXPERIENCE IN FACTUAL
INQUIRIES.    IT IS ARGUED, HOWEVER, THAT THESE CASES CEASED TO BE GOOD
LAW UNDER THE TAFT-HARTLEY AMENDMENTS.  THE HOUSE REPORT ON THEIR
VERSION OF SEC. 10 OF THE AMENDMENTS, IN DISCUSSING "SHOCKING
INJUSTICES" RESULTING FROM LIMITED COURT REVIEW OF BOARD RULINGS,
STATED THAT "REQUIRING THE BOARD TO REST ITS RULINGS UPON FACTS, NOT
INFERENCES, CONJECTURES, BACKGROUND, IMPONDERABLES, AND PRESUMED
EXPERTNESS WILL CORRECT ABUSES UNDER THE ACT."  (FN55)  WE DO NOT READ
THAT STATEMENT NOR STATEMENTS IN THE HOUSE CONFERENCE REPORT, UPON
WHICH PETITIONERS RELY TO SUPPORT THEIR CONTENTION, TO HOLD THAT THE
BOARD MAY NOT DRAW REASONABLE INFERENCES FROM PROVEN FACTS.  THE HOUSE
CONFERENCE REPORT STATED THAT, UNDER THE WAGNER ACT STANDARD OF REVIEW,
COURTS HAD "ABDICATED" TO THE BOARD AND "IN MANY INSTANCES DEFERENCE ON
THE PART OF THE COURTS TO SPECIALIZED KNOWLEDGE THAT IS SUPPOSED TO
INHERE IN ADMINISTRATIVE AGENCIES HAS LED THE COURTS TO ACQUIESCE IN
DECISIONS OF THE BOARD, EVEN WHEN THE FINDINGS CONCERNED MIXED ISSUES
OF LAW AND OF FACT (CITING CASES), OR WHEN THEY RESTED ONLY ON
INFERENCES THAT WERE NOT, IN TURN, SUPPORTED BY FACTS IN THE RECORD
(CITING THE REPUBLIC AVIATION CASE)."  (FN56)  THE REPORT CONCLUDED
THAT THE AMENDMENT TO SEC. 10(E), REQUIRING BOARD FINDINGS TO BE
"SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A
WHOLE," "WILL BE ADEQUATE TO PRECLUDE SUCH DECISIONS AS THOSE IN" INTER
ALIA THE NEVADA COPPER CORP. AND REPUBLIC AVIATION CASES. 

IN UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, WE CAREFULLY
CONSIDERED THIS LEGISLATIVE HISTORY AND INTERPRETED IT TO EXPRESS
DISSATISFACTION WITH TOO RESTRICTED APPLICATION OF THE "SUBSTANTIAL
EVIDENCE" TEST OF THE WAGNER ACT.  WE NOTED, HOWEVER, THAT SUFFICIENCY
OF EVIDENCE TO SUPPORT FINDINGS OF FACT WAS NOT INVOLVED IN THE
REPUBLIC AVIATION CASE, AND STATED THAT THE AMENDMENT WAS NOT "INTENDED
TO NEGATIVE THE FUNCTION OF THE LABOR BOARD AS ONE OF THOSE AGENCIES
PRESUMABLY EQUIPPED OR INFORMED BY EXPERIENCE TO DEAL WITH A
SPECIALIZED FIELD OF KNOWLEDGE, WHOSE FINDINGS WITHIN THAT FIELD CARRY
THE AUTHORITY OF AN EXPERTNESS WHICH COURTS DO NOT POSSESS AND
THEREFORE MUST RESPECT."  THERE IS NOTHING IN THE LANGUAGE OF THE
AMENDMENT ITSELF THAT SUGGESTS DENIAL TO THE BOARD OF POWER TO DRAW
REASONABLE INFERENCES.  IT IS INCONCEIVABLE THAT THE AUTHORS OF THE
REPORTS INTENDED SUCH A RESULT, FOR A FACT-FINDING BODY MUST HAVE SOME
POWER TO DECIDE WHICH INFERENCES TO DRAW AND WHICH TO REJECT.  WE
THEREFORE CONCLUDE THAT INSOFAR AS THE POWER TO DRAW REASONABLE
INFERENCES IS CONCERNED, TAFT-HARTLEY DID NOT ALTER PRIOR LAW. 

THE BOARD RELIES HEAVILY UPON THE HOUSE REPORT ON SEC. 8(3), WHICH
STATED THAT THE SECTION OUTLAWED DISCRIMINATION "WHICH TENDS TO
'ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION,'" (FN57)
FOR ITS CONCLUSION THAT ONLY A TENDENCY TO ENCOURAGE OR DISCOURAGE
MEMBERSHIP IS REQUIRED BY SEC. 8(A)(3).  WE READ THIS LANGUAGE TO MEAN
THAT SUBJECTIVE EVIDENCE OF EMPLOYEE RESPONSE WAS NOT CONTEMPLATED BY
THE DRAFTERS, AND TO ACCORD WITH OUR HOLDING THAT SUCH PROOF IS NOT
REQUIRED WHERE ENCOURAGEMENT OR DISCOURAGEMENT CAN BE REASONABLY
INFERRED FROM THE NATURE OF THE DISCRIMINATION. 

ENCOURAGEMENT AND DISCOURAGEMENT ARE "SUBTLE THINGS" REQUIRING "A
HIGH DEGREE OF INTROSPECTIVE PERCEPTION."  CF. LABOR BOARD V. DONNELLY
GARMENT CO., 330 U.S. 219, 231.  BUT, AS NOTED ABOVE, IT IS COMMON
EXPERIENCE THAT THE DESIRE OF EMPLOYEES TO UNIONIZE IS RAISED OR
LOWERED BY THE ADVANTAGES THOUGHT TO BE ATTAINED BY SUCH ACTION. 
MOREOVER, THE ACT DOES NOT REQUIRE THAT THE EMPLOYEES DISCRIMINATED
AGAINST BE THE ONES ENCOURAGED FOR PURPOSES OF VIOLATIONS OF SEC.
8(A)(3).  NOR DOES THE ACT REQUIRE THAT THIS CHANGE IN
EMPLOYEES'"QUANTUM OF DESIRE" TO JOIN A UNION HAVE IMMEDIATE
MANIFESTATIONS. 

OBVIOUSLY, IT WOULD BE GROSS INCONSISTENCY TO HOLD THAT AN INHERENT
EFFECT OF CERTAIN DISCRIMINATION IS ENCOURAGEMENT OF UNION MEMBERSHIP,
BUT THAT THE BOARD MAY NOT REASONABLY INFER SUCH ENCOURAGEMENT.  WE
HAVE HELD THAT A NATURAL RESULT OF THE DISPARATE WAGE TREATMENT IN
GAYNOR WAS ENCOURAGEMENT OF UNION MEMBERSHIP; THUS IT WOULD BE
UNREASONABLE TO DRAW ANY INFERENCE OTHER THAN THAT ENCOURAGEMENT WOULD
RESULT FROM SUCH ACTION.  THE COMPANY COMPLAINS THAT IT COULD HAVE
DISPROVED THIS NATURAL RESULT IF ALLOWED TO PROVE THAT LONER, THE
EMPLOYEE WHO FILED THE CHARGES AGAINST IT, HAD PREVIOUSLY APPLIED FOR
AND BEEN DENIED MEMBERSHIP IN THE UNION.  BUT IT IS CLEAR THAT SUCH
EVIDENCE WOULD NOT HAVE REBUTTED THE INFERENCE:  NOT ONLY WOULD IT HAVE
FAILED TO DISPROVE AN INCREASE IN DESIRE ON THE PART OF OTHER
EMPLOYEES, UNION MEMBERS OR NONMEMBERS, TO JOIN OR RETAIN GOOD STANDING
IN THE UNION, BUT IT WOULD NOT HAVE SHOWN LACK OF ENCOURAGEMENT OF
LONER.  IN REJECTING THIS ARGUMENT THE SECOND CIRCUIT NOTED THAT UNION
ADMISSION POLICIES ARE NOT NECESSARILY STATIC AND THAT EMPLOYEES MAY BE
ENCOURAGED TO JOIN WHEN CONDITIONS CHANGE.  THIS PROVED TO BE AN
ACCURATE PROPHECY REGARDING THE NEWSPAPER AND MAIL DELIVERERS' UNION,
INVOLVED IN THIS CASE, FOR IN 1952 IT ALTERED ITS ADMISSION POLICY TO
ALLOW MEMBERSHIP OF "ALL STEADY SITUATION HOLDERS," THUS ADMITTING MANY
EMPLOYEES NOT PREVIOUSLY ELIGIBLE. 

THE CIRCUMSTANCES IN RADIO OFFICERS AND TEAMSTERS ARE NEARLY
IDENTICAL.  IN EACH CASE THE EMPLOYER DISCRIMINATED UPON THE
INSTIGATION OF THE UNION.  THE PURPOSES OF THE UNIONS IN CAUSING SUCH
DISCRIMINATION CLEARLY WERE TO ENCOURAGE MEMBERS TO PERFORM OBLIGATIONS
OR SUPPOSED OBLIGATIONS OF MEMBERSHIP.  OBVIOUSLY, THE UNIONS WOULD NOT
HAVE INVOKED SUCH A SANCTION HAD THEY NOT CONSIDERED IT AN EFFECTIVE
METHOD OF COERCING COMPLIANCE WITH UNION OBLIGATIONS OR PRACTICES. 
BOTH BOSTON AND FOWLER WERE DENIED JOBS BY EMPLOYERS SOLELY BECAUSE OF
THE UNIONS' ACTIONS.  SINCE ENCOURAGEMENT OF UNION MEMBERSHIP IS
OBVIOUSLY A NATURAL AND FORESEEABLE CONSEQUENCE OF ANY EMPLOYER
DISCRIMINATION AT THE REQUEST OF A UNION, THOSE EMPLOYERS MUST BE
PRESUMED TO HAVE INTENDED SUCH ENCOURAGEMENT.  IT FOLLOWS THAT IT WAS
EMINENTLY REASONABLE FOR THE BOARD TO INFER ENCOURAGEMENT OF UNION
MEMBERSHIP, AND THE EIGHTH CIRCUIT ERRED IN HOLDING ENCOURAGEMENT NOT
PROVED. 

        IV.  SANCTION AGAINST UNION UNDER SEC. 8(B)(2). 

TAFT-HARTLEY AMENDMENTS IN 1947.  IT PROVIDES THAT "IT SHALL BE AN
UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS  ...  TO
CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN
EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3) OR TO DISCRIMINATE AGAINST
AN EMPLOYEE WITH RESPECT TO WHOM MEMBERSHIP IN SUCH ORGANIZATION HAS
BEEN DENIED OR TERMINATED ON SOME GROUND OTHER THAN HIS FAILURE TO
TENDER THE PERIODIC DUES AND THE INITIATION FEES UNIFORMLY REQUIRED AS
A CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP."  61 STAT. 141. 
PETITIONER IN RADIO OFFICERS CONTENDS THAT IT WAS FATAL ERROR FOR THE
BOARD TO PROCEED AGAINST IT, A UNION, WITHOUT JOINING THE EMPLOYER, AND
THAT ABSENT A FINDING OF VIOLATION OF SEC. 8(A)(3) BY AND A
REINSTATEMENT ORDER AGAINST SUCH EMPLOYER, THE BOARD COULD NOT ORDER
THE UNION TO PAY BACK-PAY UNDER SEC. 8(B)(2). 

WE FIND NO SUPPORT FOR THESE ARGUMENTS IN THE ACT.  NO SUCH
LIMITATION IS CONTAINED IN THE LANGUAGE OF SEC. 8(B)(2).  THAT SECTION
MAKES IT CLEAR THAT THERE ARE CIRCUMSTANCES UNDER WHICH CHARGES AGAINST
A UNION FOR VIOLATING THE SECTION MUST BE BROUGHT WITHOUT JOINING A
CHARGE AGAINST THE EMPLOYER UNDER SEC. 8(A)(3), FOR ATTEMPTS TO CAUSE
EMPLOYERS TO DISCRIMINATE ARE PROSCRIBED.  THUS A LITERAL READING OF
THE SECTION REQUIRES ONLY A SHOWING THAT THE UNION CAUSED OR ATTEMPTED
TO CAUSE THE EMPLOYER TO ENGAGE IN CONDUCT WHICH, IF COMMITTED, WOULD
VIOLATE SEC. 8(A)(3).  (FN58)  NO CHARGE WAS FILED AGAINST THE COMPANY
BY FOWLER WHEN HE FILED HIS CHARGE AGAINST THE UNION.  THE GENERAL
COUNSEL IS ENTRUSTED WITH "FINAL AUTHORITY, ON BEHALF OF THE BOARD, IN
RESPECT OF THE INVESTIGATION OF CHARGES AND ISSUANCE OF COMPLAINTS,"
(FN59) BUT WITHOUT A CHARGE HE HAS NO AUTHORITY TO ISSUE A COMPLAINT. 
(FN60)  EVEN WHEN A CHARGE IS FILED, MANY FACTORS MUST INFLUENCE
EXERCISE BY THE GENERAL COUNSEL OF THIS DISCRETION RELATIVE TO
PROSECUTION OF UNFAIR LABOR PRACTICES.  ABUSE OF DISCRETION HAS NOT
BEEN SHOWN, AND, WHEN A COMPLAINT IS PROSECUTED, THE BOARD IS EMPOWERED
BY SEC. 10(A) "TO PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR LABOR
PRACTICE  ... ."  IT, THEREFORE, HAD THE POWER TO FIND THAT THE UNION
HAD VIOLATED SEC. 8(B)(2). 

NOR DOES THE ABSENCE OF JOINDER OF THE EMPLOYER PRECLUDE ENTRY OF A
BACK-PAY ORDER AGAINST THE UNION.  THE UNION CITES IN SUPPORT OF ITS
POSITION THE LANGUAGE OF SEC.  10(C) (FN61) WHICH EMPOWERS THE BOARD TO
ISSUE ORDERS REQUIRING "SUCH AFFIRMATIVE ACTION INCLUDING REINSTATEMENT
OF EMPLOYEES WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES
OF THIS ACT:  PROVIDED, THAT WHERE AN ORDER DIRECTS REINSTATEMENT OF AN
EMPLOYEE, BACK PAY MAY BE REQUIRED OF THE EMPLOYER OR LABOR
ORGANIZATION, AS THE CASE MAY BE, RESPONSIBLE FOR THE DISCRIMINATION
SUFFERED BY HIM:  ...  ."  61 STAT. 147.  IN PHELPS DODGE CORP. V.
LABOR BOARD, 313 U.S. 177, 189, WE INTERPRETED THE PHRASE GIVING THE
BOARD POWER TO ORDER "REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK
PAY" NOT TO LIMIT, BUT MERELY TO ILLUSTRATE, THE GENERAL GRANT OF POWER
TO AWARD AFFIRMATIVE RELIEF.  THUS WE HELD THAT THE BOARD COULD ORDER
BACK PAY WITHOUT ORDERING REINSTATEMENT.  THE PROVISO IN SEC. 10(C) WAS
ADDED BY THE 1947 AMENDMENTS.  THE PURPOSE OF CONGRESS IN ENACTING THIS
PROVISION WAS NOT TO LIMIT THE POWER OF THE BOARD TO ORDER BACK PAY
WITHOUT ORDERING REINSTATEMENT BUT TO GIVE THE BOARD POWER TO REMEDY
UNION UNFAIR LABOR PRACTICES COMPARABLE TO THE POWER IT POSSESSED TO
REMEDY UNFAIR LABOR PRACTICES BY EMPLOYERS.  (FN62)  PETITIONER ARGUES,
HOWEVER, THAT IT WILL NOT "EFFECTUATE THE POLICIES OF THIS ACT" TO
REQUIRE IT TO REIMBURSE BACK PAY IF THE EMPLOYER IS NOT MADE TO SHARE
THIS BURDEN, BUT, ON THE CONTRARY, WILL FRUSTRATE THE ACT'S PURPOSES. 
WE DO NOT AGREE.  IT DOES NOT FOLLOW THAT BECAUSE ONE FORM OF REMEDY IS
NOT AVAILABLE OR APPROPRIATE IN A CASE, AS HERE, THAT NO REMEDY SHOULD
BE GRANTED.  IT IS CLEAR THAT PETITIONER COMMITTED AN UNFAIR LABOR
PRACTICE AND THE POLICY OF THE ACT IS TO MAKE WHOLE EMPLOYEES THUS
DISCRIMINATED AGAINST.  WE THEREFORE HOLD THAT THE BOARD PROPERLY
EXERCISED ITS POWER IN ORDERING PETITIONER TO PAY SUCH BACK PAY TO
FOWLER. 

FROM THE FOREGOING IT FOLLOWS THAT: 

THE RADIO OFFICERS' UNION V. LABOR BOARD IS AFFIRMED. 

LABOR BOARD V. INTERNATIONAL BROTHERHOOD OF TEAMSTERS IS REVERSED. 

GAYNOR NEWS CO. V. LABOR BOARD IS AFFIRMED.  NO. 5, AFFIRMED.  NO. 6,
REVERSED.  NO. 7, AFFIRMED. 

FN1  "SEC.  8.  (A)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER: 

     *         *        *         *         * 

"(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, THAT NOTHING IN THIS
ACT, OR IN ANY OTHER STATUTE OF THE UNITED STATES, SHALL PRECLUDE AN
EMPLOYER FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION (NOT
ESTABLISHED, MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN SECTION
8(A) OF THIS ACT AS AN UNFAIR LABOR PRACTICE) TO REQUIRE AS A CONDITION
OF EMPLOYMENT MEMBERSHIP THEREIN ON OR AFTER THE THIRTIETH DAY
FOLLOWING THE BEGINNING OF SUCH EMPLOYMENT OR THE EFFECTIVE DATE OF
SUCH AGREEMENT, WHICHEVER IS THE LATER, (I) IF SUCH LABOR ORGANIZATION
IS THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED IN SECTION 9(A), IN
THE APPROPRIATE COLLECTIVE-BARGAINING UNIT COVERED BY SUCH AGREEMENT
WHEN MADE; AND (II) IF, FOLLOWING THE MOST RECENT ELECTION HELD AS
PROVIDED IN SECTION 9(E) THE BOARD SHALL HAVE CERTIFIED THAT AT LEAST A
MAJORITY OF THE EMPLOYEES ELIGIBLE TO VOTE IN SUCH ELECTION HAVE VOTED
TO AUTHORIZE SUCH LABOR ORGANIZATION TO MAKE SUCH AN AGREEMENT:  AND
HAS AT THE TIME THE AGREEMENT WAS MADE OR WITHIN THE PRECEDING TWELVE
MONTHS RECEIVED FROM THE BOARD A NOTICE OF COMPLIANCE WITH SECTIONS
9(F), (G), (H), AND (II) UNLESS FOLLOWING AN ELECTION HELD AS PROVIDED
IN SECTION 9(E) WITHIN ONE YEAR PRECEDING THE EFFECTIVE DATE OF SUCH
AGREEMENT, THE BOARD SHALL HAVE CERTIFIED THAT AT LEAST A MAJORITY OF
THE EMPLOYEES ELIGIBLE TO VOTE IN SUCH ELECTION HAVE VOTED TO RESCIND
THE AUTHORITY OF SUCH LABOR ORGANIZATION TO MAKE SUCH AN AGREEMENT:
PROVIDED FURTHER, THAT NO EMPLOYER SHALL JUSTIFY ANY DISCRIMINATION
AGAINST AN EMPLOYEE FOR NONMEMBERSHIP IN A LABOR ORGANIZATION (A) IF HE
HAS REASONABLE GROUNDS FOR BELIEVING THAT SUCH MEMBERSHIP WAS NOT
AVAILABLE TO THE EMPLOYEE ON THE SAME TERMS AND CONDITIONS GENERALLY
APPLICABLE TO OTHER MEMBERS, OR (B) IF HE HAS REASONABLE GROUNDS FOR
BELIEVING THAT MEMBERSHIP WAS DENIED OR TERMINATED FOR REASONS OTHER
THAN THE FAILURE OF THE EMPLOYEE TO TENDER THE PERIODIC DUES AND THE
INITIATION FEES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR
RETAINING MEMBERSHIP; ...  ."    SECTION 8(A)(3) WAS ENACTED AS PART OF
THE TAFT-HARTLEY ACT, 61 STAT. 136, IN 1947, AND AMENDED IN 1951, 65
STAT. 601.  PROVISIONS ADDED BY THE 1951 AMENDMENT ARE IN ITALICS;
PROVISIONS ELIMINATED IN 1951 ARE IN BRACKETS.  THIS SECTION DERIVED
FROM SEC. 8(3) OF THE 1935 WAGNER ACT, 49 STAT. 452, 29 U.S.C. SEC.
158(3), WITH THE PROVISO AMENDED.  SEE NOTE 42, INFRA. 

FN2 LABOR BOARD V. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 196 F.2D
1, CERTIORARI GRANTED, 344 U.S. 853.  SEE ALSO LABOR BOARD V. DEL E.
WEBB CONSTRUCTION CO., 196 F.2D 702. 

FN3  LABOR BOARD V. RELIABLE NEWSPAPER DELIVERY, INC., 187 F.2D 547. 
SEE ALSO WESTERN CARTRIDGE CO. V. LABOR BOARD, 139 F.2D 855.    FN4
RADIO OFFICERS' UNION V. LABOR BOARD, 196 F.2D 960, CERTIORARI GRANTED,
344 U.S. 852. 

FN5  LABOR BOARD V. GAYNOR NEWS CO., INC., 197 F.2D 719, CERTIORARI
GRANTED, 345 U.S. 902.  BUT CF. LABOR BOARD V. AIR ASSOCIATES, INC.,
121 F.2D 586. 

FN6  LABOR BOARD V. WHITIN MACHINE WORKS, 204 F.2D 883. 

FN7  LABOR BOARD V. WALT DISNEY PRODUCTIONS, 146 F.2D 44. 

FN8  SEE, E.G., LABOR BOARD V. RELIABLE NEWSPAPER DELIVERY, INC., 187
F.2D 547; WELLS, INC. V. LABOR BOARD, 162 F.2D 457; LABOR BOARD V.
REYNOLDS INTERNATIONAL P. CO., 162 F.2D 680; LABOR BOARD V. DRAPER
CORP., 145 F.2D 199; LABOR BOARD V. AIR ASSOCIATES, INC., 121 F.2D
586. 

FN9  SEE ALSO UNION STARCH & REFINING CO. V. LABOR BOARD, 186 F.2D
1008; COLONIE FIBRE CO. V. LABOR BOARD, 163 F.2D 65; LABOR BOARD V.
WALT DISNEY PRODUCTIONS, 146 F.2D 44; SPERRY GYROSCOPE CO., INC. V.
LABOR BOARD, 129 F.2D 922; FIRESTONE TIRE & RUBBER CO., 93 N.L.R.B.
981. 

FN10  29 U.S.C. (SUPP. V) SEC. 158(B)(2): 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

     *     *         *         *         * 

"(2)  TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE
AGAINST AN EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3) OF THIS SECTION
OR TO DISCRIMINATE AGAINST AN EMPLOYEE WITH RESPECT TO WHOM MEMBERSHIP
IN SUCH ORGANIZATION HAS BEEN DENIED OR TERMINATED ON SOME GROUND OTHER
THAN HIS FAILURE TO TENDER THE PERIODIC DUES AND THE INITIATION FEES
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP;
...  ." 

FN11  345 U.S. 962. 

FN12  REQUISITE ENGAGEMENT IN COMMERCE FOR PURPOSES OF THE NATIONAL
LABOR RELATIONS ACT IS ADMITTED IN ALL THREE CASES. 

FN13  29 U.S.C. (SUPP. V) SEC. 158(B)(1)(A).  THIS SECTION MAKES IT
AN UNFAIR LABOR PRACTICE FOR A UNION "TO RESTRAIN OR COERCE (A)
EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION 157 OF
THIS TITLE."  SECTION 157 PROVIDES:  "EMPLOYEES SHALL HAVE THE RIGHT TO
SELF-ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, TO
BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, AND
TO ENGAGE IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION, AND SHALL ALSO HAVE THE
RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES EXCEPT TO THE
EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN AGREEMENT REQUIRING
MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT AS
AUTHORIZED IN SECTION 158(A)(3)." 

FN14  94 N.L.R.B. 1494. 

FN15  THIS AGREEMENT, KNOWN AS THE "CENTRAL STATES AREA OVER-THE-ROAD
AGREEMENT," HAS BEEN EXECUTED WITH EMPLOYERS BY MORE THAN 300 LOCALS OF
THE TEAMSTERS UNION IN 12 DIFFERENT STATES. 

FN16  SEE NOTE 1, SUPRA. 

FN17  "SEC.  45.  ANY MEMBER, UNDER CONTRACT, ONE MONTH IN ARREARS
FOR DUES SHALL FORFEIT ALL SENIORITY RIGHTS. 

"(A)  CLARIFICATION OF THE ABOVE PARAGRAPH:  ON THE SECOND DAY OF THE
SECOND MONTH A MEMBER BECOMES IN ARREARS WITH HIS DUES." 

FN18  SEE NOTE 13, SUPRA. 

FN19  (TRIAL EXAMINER'S FOOTNOTE.)  "IF, AS RESPONDENT APPEARS TO
SUGGEST, ITS CONDUCT DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION, IT
COULD BE ARGUED THAT FROM THE PLAIN MEANING OF SECTION 8(A)(3), A UNION
WOULD EQUALLY VIOLATE THE ACT BY CAUSING AN EMPLOYER TO DISCRIMINATE
AGAINST AN EMPLOYEE IN ORDER TO RID ITSELF OF SLOW-PAYING OR OTHERWISE
RECALCITRANT MEMBERS." 

FN20  196 F.2D 1. 

FN21  IN THIS CONNECTION, THE COURT POINTED OUT THAT BOSTON WAS A
MEMBER OF THE UNION PRIOR TO THE DISCRIMINATION AND RETAINED HIS STATUS
AS A MEMBER THEREAFTER, AND THAT BOSTON HAD TESTIFIED THAT THE
DISCRIMINATION NEITHER ENCOURAGED NOR DISCOURAGED HIM TO REMAIN IN THE
UNION. 

FN22  344 U.S. 853. 

FN23  93 N.L.R.B. 1523. 

FN24  SUCH AN AGREEMENT WAS PERMISSIBLE UNDER SEC. 8(3) OF THE
NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 29 U.S.C. SEC. 158(3).  THE
AGREEMENT IN THIS CASE WAS SIGNED ON JANUARY 11, 1947, AND WAS EXTENDED
FOR A PERIOD OF ONE YEAR ON AUGUST 16, 1947.  UNDER SEC. 102 OF THE
1947 AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT, 61 STAT. 152, ACTS
PERFORMED UNDER SUCH AGREEMENT WHICH WOULD NOT HAVE BEEN UNFAIR LABOR
PRACTICES UNDER SEC. 8(3) WERE NOT UNFAIR PRACTICES UNDER THE AMENDED
ACT. 

FN25  THE BOARD FOUND THAT THE UNION SECRETARY'S "HASTY ATTEMPT TO
SUSPEND" FOWLER WAS "IN DISREGARD OF FOWLER'S RIGHTS UNDER THE UNION
BYLAWS AND CONSTITUTION.  ...  IN NO EVENT COULD HOWE'S AUTHORITY
EXCEED THAT OF THE GENERAL CHAIRMAN, WHO IN ALL INSTANCES WAS REQUIRED
BY SPECIFIC PROVISIONS OF THE BYLAWS TO ADVISE FOWLER OF HIS OFFENSE
AND TO AFFORD HIM AN OPPORTUNITY TO CONFORM WITH UNION RULES BEFORE
SUSPENDING HIM.  IT IS CLEAR THAT FOWLER WAS NOT GIVEN SUCH
OPPORTUNITY; HIS PURPORTED SUSPENSION WAS THEREFORE INEFFECTUAL  ...
." 

THE POWER OF THE BOARD TO MAKE THIS FINDING IS NOT CHALLENGED HERE. 

FN26  196 F.2D 960. 

FN27  JUDGE CLARK DISSENTED AS TO THIS INTERPRETATION OF THE
CONTRACT. 

FN28  SECTION 8(C) PROVIDES:  "THE EXPRESSING OF ANY VIEWS, ARGUMENT,
OR OPINION, OR THE DISSEMINATION THEREOF, WHETHER IN WRITTEN, PRINTED,
GRAPHIC, OR VISUAL FORM, SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN
UNFAIR LABOR PRACTICE UNDER ANY OF THE PROVISIONS OF THIS SUBCHAPTER,
IF SUCH EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE
OF BENEFIT."  29 U.S.C. (SUPP. V) SEC. 158(C). 

FN29  344 U.S. 852. 

FN30  SECTION 8(A)(1) MAKES IT AN UNFAIR LABOR PRACTICE FOR AN
EMPLOYER "TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE
EXERCISE OF THE RIGHTS GUARANTEED IN SECTION 157 OF THIS TITLE" AND
SEC. 8(A)(2) MAKES IT AN UNFAIR PRACTICE FOR AN EMPLOYER "TO DOMINATE
OR INTERFERE WITH THE FORMATION OR ADMINISTRATION OF ANY LABOR
ORGANIZATION OR CONTRIBUTE FINANCIAL OR OTHER SUPPORT TO IT  ...  ." 

THE ORIGINAL CHARGE FILED ON FEBRUARY 3, 1949, ALLEGED VIOLATION ONLY
OF SECS. 8(A)(1) AND (3) BY THE ABOVE ACTION RELATIVE TO LONER BETWEEN
JULY AND OCTOBER 1948.  THIS CHARGE WAS AMENDED ON JUNE 13, 1950, TO
ALLEGE VIOLATION OF SECS. 8(A)(1) AND (2) BY EXECUTING THE OCTOBER 1948
CONTRACT WITH THE ILLEGAL UNION SECURITY CLAUSE.  THE COMPLAINT ISSUED
BY THE GENERAL COUNSEL ON THE SAME DAY CONTAINED ALL OF THESE
ALLEGATIONS AND ALLEGED THAT THE DISCRIMINATORY TREATMENT EXTENDED TO
ALL NONUNION EMPLOYEES.  THE COMPANY CONTENDS THAT INCLUSION OF SUCH
EMPLOYEES WHO DID NOT FILE CHARGES IS PROHIBITED BY THE SIX-MONTH
STATUTE OF LIMITATIONS PERIOD PROVIDED IN SEC. 10(B) OF THE ACT.  WE
AGREE WITH THE TRIAL EXAMINER, THE BOARD, AND THE COURT BELOW THAT THIS
CHARGE RELATES BACK TO THE CHARGES TIMELY FILED AND THUS THE COMPANY
WAS GIVEN ADEQUATE NOTICE AND WAS NOT PREJUDICED BY THE AMENDMENT. 
LABOR BOARD V. KOBRITZ, 193 F.2D 8, 14; LABOR BOARD V. BRADLEY
WASHFOUNTAIN CO., 192 F.2D 144, 149; LABOR BOARD V. KINGSTON CAKE CO.,
191 F.2D 563, 567; CF. CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S.
197, 225, 238. 

FN31  93 N.L.R.B. 299. 

FN32  THIS CLAUSE REQUIRING ALL NEW EMPLOYEES TO BECOME UNION MEMBERS
WITHIN THIRTY DAYS WAS NOT AUTHORIZED AS THEN REQUIRED BY SEC.
8(A)(3).  SEE NOTE 1, SUPRA. 

FN33  THE 1946 CONTRACT STATED THAT THE UNION WAS CONTRACTING "FOR
AND IN BEHALF OF THE UNION AND FOR AND IN BEHALF OF THE MEMBERS THEREOF
NOW EMPLOYED AND HEREAFTER TO BE EMPLOYED BY THE EMPLOYER."   THE
PRESIDENT OF THE COMPANY TESTIFIED BEFORE THE TRIAL EXAMINER THAT HE
BELIEVED THE 1946 CONTRACT AND THE SUPPLEMENTARY AGREEMENT APPLIED TO
UNION MEMBERS ONLY. 

FN34  THE BOARD REJECTED THE COMPANY'S CONTENTION THAT SINCE THE
CLOSED-SHOP PROVISION IN THE 1946 CONTRACT WAS VALID UNDER SEC. 8(3),
SEE NOTE 24, SUPRA, AND IT THUS COULD HAVE LEGALLY DISCHARGED THE
NONUNION EMPLOYEES DURING THE LIFE OF THAT CONTRACT, IT COULD LEGALLY
RETAIN SUCH EMPLOYEES AND CONTRACT TO DISCRIMINATE AS TO THEIR WAGES. 

THE BOARD FOUND, HOWEVER, THAT THE "EVIDENCE INDICATES THAT THE
RESPONDENT HAD CONTRACTED TO MAKE RETROACTIVE WAGE PAYMENTS TO THE
EMPLOYEES COVERED BY THE ORIGINAL CONTRACT  ...  ."  THE BOARD ALSO
ADOPTED THE TRIAL EXAMINER'S FINDING THAT, REGARDLESS OF THE STATUS OF
THE WAGE PAYMENT, THE RETROACTIVE VACATION PAYMENTS WERE ENTIRELY
VOLUNTARY. 

FN35  197 F.2D 719.  THE COURT MODIFIED PARTS OF THE ORDER CONCERNING
THE ILLEGALITY OF THE 1948 CONTRACT.  JUDGE CHASE DISSENTED AS TO SUCH
MODIFICATION. 

IN ITS BRIEF THE COMPANY SEEKS TO RAISE THE ISSUE OF THE ILLEGALITY
OF THAT CONTRACT.  THIS QUESTION WAS NOT PRESENTED IN THE PETITION FOR
CERTIORARI AND IS, THEREFORE, NOT PROPERLY BEFORE THE COURT.  GENERAL
TALKING PICTURES CORP. V. WESTERN ELEC.  CO., 304 U.S. 175. 

FN36  345 U.S. 902. 

FN37  SEE, E.G., LABOR BOARD V. GULLETT GIN CO., INC., 340 U.S. 361;
UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474; PHELPS DODGE CORP.
V. LABOR BOARD, 313 U.S. 177; REPUBLIC STEEL CORP. V. LABOR BOARD, 311
U.S. 7; LABOR BOARD V. SANDS MFG. CO., 306 U.S. 332; LABOR BOARD V.
FANSTEEL METALLURGICAL CORP., 306 U.S. 240; LABOR BOARD V. MACKAY RADIO
& TELEGRAPH CO., 304 U.S. 333; LABOR BOARD V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1. 

FN38  LABOR BOARD V. FANSTEEL METALLURGICAL CORP., SUPRA; LABOR BOARD
V. SANDS MFG. CO., SUPRA; SOUTHERN STEAMSHIP CO. V. LABOR BOARD, 316
U.S. 31.  CF. LABOR BOARD V. ELECTRICAL WORKERS, 346 U.S. 464. 

FN39  ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103.  CF. LABOR BOARD
V. KENNAMETAL, INC., 182 F.2D 817; LABOR BOARD V. PETER CAILLER KOHLER
SWISS CHOCOLATES CO., 130 F.2D 503. 

FN40  SEE SEC. 7, 29 U.S.C. (SUPP. V) SEC. 157, NOTE 13, SUPRA. 

FN41  THE FULL TEXT OF THE PROVISO TO SEC. 8(A)(3) IS SET OUT IN NOTE
1, SUPRA.  THAT CONGRESS INTENDED SEC. 8(A)(3) TO PROSCRIBE ALL
DISCRIMINATION TO ENCOURAGE UNION MEMBERSHIP NOT EXCEPTED BY THE
PROVISO, SEE H. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 44, WHERE IT
IS STATED THAT SEC. 8(A)(3) "PROHIBITS AN EMPLOYER FROM DISCRIMINATING
AGAINST AN EMPLOYEE BY REASON OF HIS MEMBERSHIP OR NONMEMBERSHIP IN A
LABOR ORGANIZATION, EXCEPT TO THE EXTENT THAT HE OBLIGATES HIMSELF TO
DO SO UNDER THE TERMS OF A PERMITTED UNION SHOP OR MAINTENANCE OF
MEMBERSHIP CONTRACT." 

FN42  UNDER THE WAGNER ACT THE PROVISO READ:  "PROVIDED, THAT NOTHING
IN SECTIONS 151-166 OF THIS TITLE OR IN ANY OTHER STATUTE OF THE UNITED
STATES, SHALL PRECLUDE AN EMPLOYER FROM MAKING AN AGREEMENT WITH A
LABOR ORGANIZATION (NOT ESTABLISHED, MAINTAINED, OR ASSISTED BY ANY
ACTION DEFINED IN SAID SECTIONS AS AN UNFAIR LABOR PRACTICE) TO REQUIRE
AS A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN, IF SUCH LABOR
ORGANIZATION IS THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED IN
UNIT COVERED BY SUCH AGREEMENT WHEN MADE."  29 U.S.C.  (1946 ED.) 
SEC.  158(3).  SEE COLGATE-PALMOLIVE-PEET CO. V. LABOR BOARD, 338 U.S.
355. 

FN43  FOR EXAMPLE, SENATOR TAFT SAID:  "IT IS CONTENDED THAT THE
EMPLOYER SHOULD BE OBLIGED TO DISCHARGE THE MAN BECAUSE THE UNION DOES
NOT LIKE HIM.  THAT IS WHAT WE ARE TRYING TO PREVENT.  I DO NOT SEE WHY
A UNION SHOULD HAVE SUCH POWER OVER A MAN IN THAT SITUATION."  93 CONG.
REC. 4191. 

IN H.R. REP. NO. 245, 80TH CONG., 1ST SESS., P. 33, IT WAS STATED
THAT "THE BILL PROHIBITS WHAT IS COMMONLY KNOWN AS THE CLOSED SHOP, OR
ANY FORM OF COMPULSORY UNIONISM THAT REQUIRES A PERSON TO BE A MEMBER
OF A UNION IN GOOD STANDING WHEN THE EMPLOYER HIRES HIM." 

SEE ALSO 93 CONG. REC. 4135, 4193, 4272, 4275, 4432; S. REP. NO. 105,
80TH CONG., 1ST SESS. 6 ET SEQ.; H.R. 3020, 80TH CONG., 1ST SESS. 27
28; H. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 41. 

FN44  SEE LABOR BOARD V. ECLIPSE LUMBER CO., 199 F.2D 684; UNION
STARCH & REFINING CO. V. LABOR BOARD, 186 F.2D 1008. 

FN45  ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103, 132. 

FN46  SEE CASES CITED, NOTE 8, SUPRA. 

FN47  E.G., MANOFF, LABOR RELATIONS LAW, 82; CCH, GUIDEBOOK TO LABOR
RELATIONS LAW, 142; WOLLETT, LABOR RELATIONS AND FEDERAL LAW, 62;
MILLIS & BROWN, FROM THE WAGNER ACT TO TAFT-HARTLEY, 428; COX, SOME
ASPECTS OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 HARV. L. REV.
1, 20; WARD, "DISCRIMINATION" UNDER THE NATIONAL LABOR RELATIONS ACT,
48 YALE L.J. 1152, 1158. 

FN48  N.L.R.B., 16TH ANNUAL REPORT 162. 

FN49  S. REP. NO. 573, 74TH CONG., 1ST SESS. 11. 

FN50  HEARINGS BEFORE THE SENATE COMMITTEE ON EDUCATION AND LABOR ON
S. 1958, 74TH CONG., 1ST SESS. 38. 

FN51  H. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 44. 

FN52  H.R. REP. NO. 1147, 74TH CONG., 1ST SESS. 21; SEE ALSO WARD,
NOTE 47, SUPRA, AT 1166. 

FN53  SEE, E.G., LABOR BOARD V. INDUSTRIAL COTTON MILLS, 208 F.2D 87;
CUSANO V. LABOR BOARD, 190 F.2D 898; ALLIS-CHALMERS MFG. CO., 70
N.L.R.B. 348, ENFORCED, 162 F.2D 435; LABOR BOARD V. GLUEK BREWING CO.,
144 F.2D 847. 

FN54  S. REP. NO. 573, 74TH CONG., 1ST SESS. 13.  DURING A DEBATE ON
THE ACT, SENATOR WAGNER STATED:  "UNDER THIS PROPOSED LEGISLATION,
ASSUMING AN AGREEMENT HAS BEEN CONSUMMATED BY THE AGENCY ELECTED BY THE
MAJORITY OF THE EMPLOYEES, THERE WILL BE NO ADVANTAGE WHICH A MAJORITY
CAN HAVE UNDER AN AGREEMENT TO WHICH THE MINORITY IS NOT ALSO ENTITLED,
AND IN ORDER TO HAVE THAT ADVANTAGE THE MINORITY NEED NOT JOIN ANY
ORGANIZATION.  IT CAN JOIN OR NOT JOIN, EITHER WAY.  IT CANNOT BE
DISCRIMINATED AGAINST UNDER ANY OTHER PROVISION OF THE LAW."  79 CONG.
REC. 7673.  SEE ALSO NOTE 52, SUPRA.    FN55  H.R. REP. NO. 245, 80TH
CONG., 1ST SESS. 41. 

FN56 H. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 55.  SEE COX, OP.
CIT. SUPRA, NOTE 47, AT 39 ET SEQ. 

FN57  H.R. REP. NO. 1147, 74TH CONG., 1ST SESS. 21. 

FN58  SEE LABOR BOARD V. NEWSPAPER & MAIL DELIVERERS' UNION, 192 F.2D
654.  CF. KATZ V. LABOR BOARD, 196 F.2D 411. 

FN59 29 U.S.C. (SUPP. V) SEC. 153(D). 

FN60  ID., SEC. 160(B).  BUT SEE LABOR BOARD V. INDIANA & MICHIGAN
ELECTRIC CO., 318 U.S. 9, 17. 

FN61  29 U.S.C. (SUPP. V) SEC. 160(C). 

FN62  SEE LABOR BOARD V. J.I. CASE CO., 198 F.2D 919, 924; H.N.
NEWMAN, 85 N.L.R.B.  725, ENFORCED, 187 F.2D 488; UNION STARCH &
REFINING CO. V. LABOR BOARD, 186 F.2D 1008, 1014. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IN CONSTRUING AN AMBIGUOUS PROVISION OF A REGULATORY MEASURE LIKE THE
TAFT-HARTLEY ACT, A DECISION CAN SELDOM AVOID LEAVING MORE OR LESS
DISCRETION TO THE AGENCY PRIMARILY CHARGED WITH ADMINISTERING THE
STATUTE.  SINCE GUIDANCE IN THE EXERCISE OF THIS DISCRETION BY THE
LABOR BOARD, AND NOT MERELY GUIDANCE FOR LITIGANTS, THUS BECOMES A
FUNCTION OF THE COURT'S OPINION, IT IS DOUBLY NECESSARY TO DEFINE THE
SCOPE OF OUR RULING AS EXPLICITLY AS POSSIBLE. 

THE LOWER COURTS HAVE GIVEN CONFLICTING INTERPRETATIONS TO THE
PHRASE, "BY DISCRIMINATION  ...  TO ENCOURAGE OR DISCOURAGE MEMBERSHIP
IN ANY LABOR ORGANIZATION," CONTAINED IN SEC. 8(A)(3).  WE SHOULD
SETTLE THIS CONFLICT WITHOUT GIVING RISE TO AVOIDABLE NEW
CONTROVERSIES. 

THE PHRASE IN ITS RELEVANT SETTING IS SUSCEPTIBLE OF ALTERNATIVE
CONSTRUCTIONS OF DECISIVELY DIFFERENT SCOPE: 

(A)  ON THE BASIS OF THE EMPLOYER'S DISPARATE TREATMENT OF HIS
EMPLOYEES STANDING ALONE, OR AS SUPPLEMENTED BY EVIDENCE OF THE
PARTICULAR CIRCUMSTANCES UNDER WHICH THE EMPLOYER ACTED, IT IS OPEN FOR
THE BOARD TO CONCLUDE THAT THE CONDUCT OF THE EMPLOYER TENDS TO
ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP, THEREBY ESTABLISHING A
VIOLATION OF THE STATUTE. 

(B)  EVEN THOUGH THE EVIDENCE OF DISPARATE TREATMENT IS SUFFICIENT TO
WARRANT THE BOARD'S CONCLUSION SET FORTH IN (A), THERE MUST BE A
SPECIFIC FINDING BY THE BOARD IN ALL CASES THAT THE ACTUAL AIM OF THE
EMPLOYER WAS TO ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP. 

I THINK (A) IS THE CORRECT INTERPRETATION.  IN MANY CASES A
CONCLUSION BY THE BOARD THAT THE EMPLOYER'S ACTS ARE LIKELY TO HELP OR
HURT A UNION WILL BE SO COMPELLING THAT A FURTHER AND SEPARATE FINDING
CHARACTERIZING THE EMPLOYER'S STATE OF MIND WOULD BE AN UNNECESSARY AND
FICTIVE FORMALITY.  IN SUCH A CASE THE EMPLOYER MAY FAIRLY BE JUDGED BY
HIS ACTS AND THE INFERENCES TO BE DRAWN FROM THEM. 

OF COURSE, THERE WILL BE CASES IN WHICH THE CIRCUMSTANCES UNDER WHICH
THE EMPLOYER ACTED SERVE TO REBUT ANY INFERENCE THAT MIGHT BE DRAWN
FROM HIS ACTS OF ALLEGED DISCRIMINATION STANDING ALONE.  FOR EXAMPLE,
CONCEDEDLY A RAISE GIVEN ONLY TO UNION MEMBERS IS PRIMA FACIE SUSPECT;
BUT THE EMPLOYER, BY INTRODUCING OTHER FACTS, MAY BE ABLE TO SHOW THAT
THE RAISE WAS SO PATENTLY REFERABLE TO OTHER CONSIDERATIONS, UNRELATED
TO HIS VIEWS ON UNIONS AND WITHIN HIS ALLOWABLE FREEDOM OF ACTION, THAT
THE BOARD COULD NOT REASONABLY HAVE CONCLUDED THAT HIS CONDUCT WOULD
ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP. 

IN SUM, ANY INFERENCE THAT MAY BE DRAWN FROM THE EMPLOYER'S ALLEGED
DISCRIMINATORY ACTS IS JUST ONE ELEMENT OF EVIDENCE WHICH MAY OR MAY
NOT BE SUFFICIENT, WITHOUT MORE, TO SHOW A VIOLATION.  BUT THAT SHOULD
NOT OBSCURE THE FACT THAT THIS INFERENCE MAY BE BOLSTERED OR REBUTTED
BY OTHER EVIDENCE WHICH MAY BE ADDUCED, AND WHICH THE BOARD MUST TAKE
INTO CONSIDERATION.  THE BOARD'S TASK IS TO WEIGH EVERYTHING BEFORE IT,
INCLUDING THOSE INFERENCES WHICH, WITH ITS SPECIALIZED EXPERIENCE, IT
BELIEVES CAN FAIRLY BE DRAWN.  ON THE BASIS OF THIS PROCESS, IT MUST
DETERMINE WHETHER THE ALLEGED DISCRIMINATORY ACTS OF THE EMPLOYER WERE
SUCH THAT HE SHOULD HAVE REASONABLY ANTICIPATED THAT THEY WOULD
ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP. 

SINCE THE ISSUE WHICH THE BOARD THUS HAS TO DECIDE INVOLVES PRE
EMINENTLY AN EXERCISE OF JUDGMENT ON MATTERS PECULIARLY WITHIN ITS
SPECIAL COMPETENCE, LITTLE ROOM WILL BE LEFT FOR JUDICIAL REVIEW.  SEE
UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 488.   WHAT I HAVE
WRITTEN AND THE COURT'S OPINION, AS I READ IT, ARE NOT IN
DISAGREEMENT.  IN ANY EVENT, I CONCUR IN ITS JUDGMENT. 

MR. JUSTICE BURTON AND MR. JUSTICE MINTON, HAVING JOINED IN THE
OPINION OF THE COURT, ALSO JOIN THIS OPINION. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

                                             I. 

NO. 7 - THE GAYNOR CASE.  - EIGHTEEN YEARS AGO THE LANGUAGE
CONSIDERED HERE BECAME A PART OF WHAT IS NOW KNOWN AS SEC. 8(A)(3) OF
THE LABOR ACT.  THE COURT TODAY GIVES THAT LANGUAGE AN ENTIRELY NEW
INTERPRETATION.  I DISSENT.  THE SECTION MAKES IT AN UNFAIR LABOR
PRACTICE FOR AN EMPLOYER "BY DISCRIMINATION IN REGARD TO  ...  ANY TERM
OR CONDITION OF EMPLOYMENT TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY
LABOR ORGANIZATION  ...  ."  UNQUESTIONABLY PAYMENT OF DISPARATE WAGES
TO UNION AND NONUNION EMPLOYEES IS "DISCRIMINATION" AS THAT TERM IS
USED IN SEC. 8(A)(3).  BUT THE SECTION DOES NOT FORBID ALL
"DISCRIMINATION."  IT CAREFULLY LIMITS THE CONDITIONS UNDER WHICH
"DISCRIMINATION" IS "UNFAIR."  THE PLAIN AND LONG ACCEPTED MEANING OF
SEC. 8(A)(3) IS THAT IT FORBIDS AN EMPLOYER TO DISCRIMINATE ONLY WHEN
HE DOES SO IN ORDER TO "ENCOURAGE OR DISCOURAGE" UNION MEMBERSHIP. 
LABOR BOARD V. WATERMAN S.S. CO., 309 U.S. 206, 219.  RECENTLY,
HOWEVER, THE LABOR BOARD HAS ADOPTED THE VIEW THAT THE SECTION OUTLAWS
DISCRIMINATION MERELY HAVING A "TENDENCY TO ENCOURAGE  ...  " OR "THE
NATURAL AND PROBABLE EFFECT" OF WHICH WOULD BE TO ENCOURAGE UNION
MEMBERSHIP.  THE COURT APPARENTLY NOW ACCEPTS THIS INTERPRETATION, FOR
HERE THERE IS NO FINDING THAT GAYNOR ACTED IN ORDER TO ENCOURAGE UNION
MEMBERSHIP.  INDEED, THE BOARD CONCEDES THAT GAYNOR HAD NO SUCH
PURPOSE, AND THIS CONCESSION IS FULLY SUPPORTED BY THE EVIDENCE. 
GAYNOR HAD NO DESIRE TO MAKE RETROACTIVE PAYMENTS TO ANY EMPLOYEES.  IT
YIELDED TO THE UNION NOT BECAUSE IT WANTED TO BUT BECAUSE IT WAS
COMPELLED TO BY A COLLECTIVE BARGAINING CONTRACT. 

I THINK THE COURT'S NEW INTERPRETATION OF SEC. 8(A)(3) IMPUTES GUILT
TO AN EMPLOYER FOR CONDUCT WHICH CONGRESS DID NOT WISH TO OUTLAW. 
BEHIND THE LABOR ACT WAS A LONG HISTORY OF EMPLOYER HOSTILITY TO STRONG
UNIONS AND AFFECTION FOR WEAK ONES.  POWER OVER WAGES, HOURS AND OTHER
WORKING CONDITIONS PERMITTED EMPLOYERS TO HELP UNIONS THEY LIKED AND
HURT UNIONS THEY DISLIKED.  TO ENABLE WORKERS TO JOIN OR NOT JOIN
UNIONS WITHOUT FEAR OF REPRISAL, CONGRESS PASSED THE LABOR ACT
PROHIBITING SUCH EMPLOYER DISCRIMINATION.  BUT ASIDE FROM THIS
LIMITATION ON THE EMPLOYER'S POWERS, CONGRESS DID NOT MEAN TO INVADE
HIS NORMAL RIGHT TO FIX DIFFERENT WAGES, HOURS AND OTHER WORKING
CONDITIONS FOR DIFFERENT EMPLOYEES ACCORDING TO HIS BEST BUSINESS
JUDGMENT.  (FN1)  SECTION 8(A)(3) IS APTLY PHRASED TO ACCOMPLISH BOTH
THESE PURPOSES. 

THE BOARD HAS BEEN CAREFUL IN SEC. 8(A)(3) CASES TO MAKE FINDINGS
THAT EMPLOYER DISCRIMINATION WAS MOTIVATED BY HOSTILITY OR FAVORITISM
TOWARD UNION MEMBERSHIP.  (FN2)  EVEN NOW TRIAL EXAMINERS AND THE BOARD
CONTINUE TO MAKE FINDINGS AS TO THE EMPLOYER'S PURPOSE.  (FN3)  THE
COURTS HAVE REGULARLY HELD THAT SEC. 8(A)(3) REQUIRES SUCH FINDINGS,
AND HAVE BEEN CALLED ON TO DETERMINE IF THEY WERE SUPPORTED BY
SUBSTANTIAL EVIDENCE.  (FN4)  I THINK THE SECTION SHOULD NOT AT THIS
LATE DATE BE HELD TO PENALIZE AN EMPLOYER FOR USING HIS JUDGMENT IN
FIXING WORKING CONDITIONS UNLESS HE DISCRIMINATES AMONG EMPLOYEES IN
ORDER TO STRENGTHEN OR WEAKEN A UNION FOR HIS OWN ADVANTAGE.  FOR THIS
REASON, I WOULD NOT SUSTAIN THE BOARD'S HOLDING THAT GAYNOR VIOLATED
SEC. 8(A)(3). 

                                            II. 

NOS. 5 AND 6 - THE RADIO OFFICERS AND TEAMSTERS CASES.  - IN THESE
CASES THE BOARD FOUND THAT THE RADIO OFFICERS AND TEAMSTERS UNIONS HAD
VIOLATED SEC. 8(B)(2) OF THE TAFT-HARTLEY ACT WHICH MAKES IT AN "UNFAIR
LABOR PRACTICE" FOR A UNION "TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER
TO DISCRIMINATE AGAINST AN EMPLOYEE IN VIOLATION" OF SEC.  8(A)(3). 
THE BOARD FOUND ON SUFFICIENT EVIDENCE THAT EACH OF THE TWO UNIONS HERE
"CAUSED" AN EMPLOYER TO TREAT AN EMPLOYEE DIFFERENTLY FROM THE WAY IT
TREATED OTHER EMPLOYEES, THAT IS, THE EMPLOYER WAS CAUSED "TO
DISCRIMINATE" WITHIN THE MEANING OF SEC. 8(A)(3).  THE BOARD ALSO FOUND
THAT THIS "DISCRIMINATION" HAD A TENDENCY TO ENCOURAGE UNION
MEMBERSHIP.  BUT THERE WAS NO FINDING THAT EITHER EMPLOYER'S
DISCRIMINATION OCCURRED IN ORDER TO ENCOURAGE UNION MEMBERSHIP.  FOR
THE REASONS SET OUT IN MY DISCUSSION OF SEC. 8(A)(3) IN THE GAYNOR
CASE, I THINK THESE FINDINGS FALL SHORT OF SHOWING AN EMPLOYER
"VIOLATION OF SEC. 8(A)(3)."  A UNION DOES NOT VIOLATE SEC. 8(B)(2) BY
CAUSING AN EMPLOYER TO DISCRIMINATE UNLESS THAT EMPLOYER DISCRIMINATION
IS "IN VIOLATION OF SEC.  8(A)(3)."  FOR THIS REASON I WOULD REVERSE
NO. 5 AND AFFIRM NO. 6. 

FN1  LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 45-46
(1937); PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 182-183
(1941). 

FN2  SEE, E.G., FRUEHAUF TRAILER CO., 1 N.L.R.B. 68, 74-77 (1935),
SUSTAINED, 301 U.S. 49, 55-57 (1937); UNION PACIFIC STAGES, INC., 2
N.L.R.B. 471, 486 (1936), ENFORCED AS MODIFIED, 99 F.2D 153, 168, 176
177 (C.A. 9TH CIR. 1938); KANSAS CITY POWER & LIGHT CO., 12 N.L.R.B.
1414, 1436-1453 (1939), ENFORCED AS MODIFIED, 111 F.2D 340, 349-351
(C.A. 8TH CIR. 1940); MARTEL MILLS CORP., 20 N.L.R.B. 712, 724, 733
(1940), ENFORCEMENT DENIED, 114 F.2D 624, 630-633 (C.A. 4TH CIR. 1940);
AIR ASSOCIATES, INC., 20 N.L.R.B.  356 (1940), ENFORCED AS MODIFIED,
121 F.2D 586, 591-592 (C.A.2D CIR. 1941); STONEWALL COTTON MILLS, 36
N.L.R.B. 240 (1941), ENFORCED AS MODIFIED, 129 F.2D 629, 632-633 (C.A.
5TH CIR. 1942); WESTERN CARTRIDGE CO., 48 N.L.R.B. 434 (1943), ENFORCED
AS MODIFIED, 139 F.2D 855, 858-860 (C.A. 7TH CIR. 1943); ROBBINS TIRE
AND RUBBER CO., 69 N.L.R.B. 440, 441 (1946), ENFORCED, 161 F.2D 798,
801 (C.A. 5TH CIR. 1947); WELLS, INC., 68 N.L.R.B. 545, 546-547 (1946),
ENFORCED AS MODIFIED, 162 F.2D 457, 459-460 (C.A. 9TH CIR. 1947);
VICTOR MFG. & GASKET CO., 79 N.L.R.B. 234, 235 (1948), ENFORCED, 174
F.2D 867, 868 (C.A. 7TH CIR. 1949); B&Z HOSIERY PRODUCTS CO., 85
N.L.R.B. 633 (1949), ENFORCED, BOCHNER V. LABOR BOARD, 180 F.2D 1021
(C.A. 3D CIR. 1950).  TO SUPPORT ITS POSITION HERE THAN AN EMPLOYER'S
PURPOSE IS IRRELEVANT UNDER SEC. 8(A)(3) THE BOARD RELIES ON ITS
DECISIONS IN GENERAL MOTORS CORP., 59 N.L.R.B. 1143, 1145 (1944),
ENFORCED AS MODIFIED, 150 F.2D 201 (C.A. 3D CIR. 1945); ALLIS-CHALMERS
MFG. CO., 70 N.L.R.B. 348, 349-350 (1946), ENFORCED, 162 F.2D 435 (C.A.
7TH CIR. 1947); AND RELIABLE NEWSPAPER DELIVERY, INC., 88 N.L.R.B.
659, 669-670 (1950), ENFORCEMENT DENIED, 187 F.2D 547 (C.A. 3D CIR.
1951).  IN THE FIRST TWO DECISIONS SPECIFIC FINDINGS OF EMPLOYER
PURPOSE WERE MADE, AND IN THE LATTER THE FACTS ARE SUBSTANTIALLY
IDENTICAL TO THE CASE HERE. 

FN3  E.G., IN MARATHON ELECTRIC MFG. CORP., 106 N.L.R.B. NO. 199
(SEPTEMBER 29, 1953), THE TRIAL EXAMINER FOUND THAT NUMEROUS ACTS OF AN
EMPLOYER VIOLATED SEC. 8(A)(3) BECAUSE THE EMPLOYER "DISCRIMINATED  ...
TO DISCOURAGE MEMBERSHIP IN UE  ...  ."  IN SUSTAINING THE EXAMINER AS
TO SOME OF THE ACTS AND OVERRULING HIM AS TO OTHERS THE BOARD'S
DECISION RESTED ON SUCH FINDINGS AS:  "THE DISCHARGES WERE NOT ONLY
CALCULATED TO DISCOURAGE CONCERTED ACTIVITIES  ...  BUT ALSO TO DETER
... FROM JOINING, OR GIVING SUPPORT IN THE FUTURE TO, UE OR ANY OTHER
LABOR ORGANIZATION"; THE RECORD DID NOT SHOW "THAT THE FAILURE TO
RECALL THEM (CERTAIN EMPLOYEES) WAS BECAUSE OF THEIR ACTUAL OR SUPPOSED
CONNECTION WITH UE"; AND THERE WAS "NO EVIDENCE IN THE RECORD TO REBUT
THE RESPONDENT'S (EMPLOYER'S) CONTENTION THAT ITS ONLY REASON FOR NOT
RECALLING THESE EMPLOYEES WAS THE CANCELLATION OF THE CONTRACT."  SEE
ALSO NEW MEXICO TRANSPORTATION CO., 107 N.L.R.B. NO. 8 (NOVEMBER 13,
1953); TERRI LEE, INC., 107 N.L.R.B. NO. 141 (DECEMBER 28, 1953). 

FN4  SEE COURT DECISIONS CITED IN NOTE 2, SUPRA.  SEE ALSO LABOR
BOARD V. WATERMAN S.S.  CO., 309 U.S. 206, 218, 220-226 (1940), WHERE
THIS COURT REVIEWED THE RECORD AND HELD THAT A FINDING OF
DISCRIMINATION BY AN EMPLOYER "BECAUSE OF" UNION MEMBERSHIP WAS
SUSTAINED BY SUBSTANTIAL EVIDENCE.  REPUBLIC AVIATION CORP. V. LABOR
BOARD, 324 U.S. 793 (1945), INDICATED NO INTENT TO REPUDIATE THE
INTERPRETATION OF SEC. 8(A)(3) ACCEPTED IN THE WATERMAN CASE, SUPRA.
THE BOARD ALSO RELIES ON SUCH CASES AS:  LABOR BOARD V. HUDSON MOTOR
CAR CO., 128 F.2D 528, 532-533 (C.A. 6TH CIR. 1942), ENFORCING 34
N.L.R.B. 815, 826-827 (1941); LABOR BOARD V. GLUEK BREWING CO., 144
F.2D 847, 853 (C.A. 8TH CIR. 1944), MODIFYING AND ENFORCING 47 N.L.R.B.
1079, 1095 (1943); AND LABOR BOARD V. INDUSTRIAL COTTON MILLS, 208 F.2D
87 (C.A. 4TH CIR. 1953), MODIFYING AND ENFORCING 102 N.L.R.B. 1265
(1953).  HOWEVER, NONE OF THESE CASES IS IN POINT HERE, SINCE IN EACH
THE BOARD MADE FINDINGS OF THE EMPLOYER'S PURPOSE. 
..END :



WALDER V. UNITED STATES 347 U.S. 62 


NO. 121.  ARGUED NOVEMBER 30, 1953 - DECIDED FEBRUARY 1, 1954 - 201 F.2D
715, AFFIRMED. 


BECAUSE HEROIN HAD BEEN OBTAINED FROM PETITIONER THROUGH UNLAWFUL
SEARCH AND SEIZURE, ITS USE IN EVIDENCE WAS SUPPRESSED ON PETITIONER'S
MOTION; AND AN INDICTMENT AGAINST HIM FOR ITS POSSESSION WAS DISMISSED
ON THE GOVERNMENT'S MOTION.  IN HIS SUBSEQUENT TRIAL FOR OTHER ILLICIT
TRANSACTIONS IN NARCOTICS, PETITIONER TESTIFIED ON DIRECT EXAMINATION
THAT HE HAD NEVER PURCHASED, SOLD OR POSSESSED ANY NARCOTICS.  IN ORDER
TO IMPEACH THIS TESTIMONY, THE GOVERNMENT INTRODUCED THE TESTIMONY OF
AN OFFICER WHO HAD PARTICIPATED IN THE UNLAWFUL SEARCH AND SEIZURE OF
THE HEROIN INVOLVED IN THE EARLIER PROCEEDING AND THE CHEMIST WHO HAD
ANALYZED IT.  HELD:  PETITIONER'S ASSERTION ON DIRECT EXAMINATION THAT
HE HAD NEVER POSSESSED ANY NARCOTICS OPENED THE DOOR, SOLELY FOR THE
PURPOSE OF ATTACKING PETITIONER'S CREDIBILITY, TO EVIDENCE OF THE
HEROIN UNLAWFULLY SEIZED IN CONNECTION WITH THE EARLIER PROCEEDING. 
WEEKS V. UNITED STATES, 232 U.S. 383, AND AGNELLO V. UNITED STATES, 269
U.S. 20, DISTINGUISHED.  PP. 62-66. 

WALDER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN MAY 1950, PETITIONER WAS INDICTED IN THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF MISSOURI FOR PURCHASING AND
POSSESSING ONE GRAIN OF HEROIN.  CLAIMING THAT THE HEROIN CAPSULE HAD
BEEN OBTAINED THROUGH AN UNLAWFUL SEARCH AND SEIZURE, PETITIONER MOVED
TO SUPPRESS IT.  THE MOTION WAS GRANTED, AND SHORTLY THEREAFTER, ON THE
GOVERNMENT'S MOTION, THE CASE AGAINST PETITIONER WAS DISMISSED. 

IN JANUARY OF 1952, PETITIONER WAS AGAIN INDICTED, THIS TIME FOR FOUR
OTHER ILLICIT TRANSACTIONS IN NARCOTICS.  THE GOVERNMENT'S CASE
CONSISTED PRINCIPALLY OF THE TESTIMONY OF TWO DRUG ADDICTS WHO CLAIMED
TO HAVE PROCURED THE ILLICIT STUFF FROM PETITIONER UNDER THE DIRECTION
OF FEDERAL AGENTS.  THE ONLY WITNESS FOR THE DEFENSE WAS THE DEFENDANT
HIMSELF, PETITIONER HERE.  HE DENIED ANY NARCOTICS DEALINGS WITH THE
TWO GOVERNMENT INFORMERS AND ATTRIBUTED THE TESTIMONY AGAINST HIM TO
PERSONAL HOSTILITY. 

EARLY ON HIS DIRECT EXAMINATION PETITIONER TESTIFIED AS FOLLOWS: 

"Q.  NOW, FIRST, MR. WALDER, BEFORE WE GO FURTHER IN YOUR TESTIMONY,
I WANT YOU TO TELL THE COURT AND JURY WHETHER, NOT REFERRING TO THESE
INFORMERS IN THIS CASE, BUT WHETHER YOU HAVE EVER SOLD ANY NARCOTICS TO
ANYONE. 

"A. I HAVE NEVER SOLD ANY NARCOTICS TO ANYONE IN MY LIFE. 

"Q. HAVE YOU EVER HAD ANY NARCOTICS IN YOUR POSSESSION, OTHER THAN
WHAT MAY HAVE BEEN GIVEN TO YOU BY A PHYSICIAN FOR AN AILMENT? 

"A.  NO. 

"Q.  NOW, I WILL ASK YOU ONE MORE THING.  HAVE YOU EVER HANDED OR
GIVEN ANY NARCOTICS TO ANYONE AS A GIFT OR IN ANY OTHER MANNER WITHOUT
THE RECEIPT OF ANY MONEY OR ANY OTHER COMPENSATION? 

"A.  I HAVE NOT. 

"Q.  HAVE YOU EVER EVEN ACTED AS, SAY, HAVE YOU ACTED AS A CONDUIT
FOR THE PURPOSE OF HANDLING WHAT YOU KNEW TO BE A NARCOTIC FROM ONE
PERSON TO ANOTHER? 

"A.  NO, SIR." 

ON CROSS-EXAMINATION, IN RESPONSE TO A QUESTION BY GOVERNMENT COUNSEL
MAKING REFERENCE TO THIS DIRECT TESTIMONY, PETITIONER REITERATED HIS
ASSERTION THAT HE HAD NEVER PURCHASED, SOLD OR POSSESSED ANY
NARCOTICS.  OVER THE DEFENDANT'S OBJECTION, THE GOVERNMENT THEN
QUESTIONED HIM ABOUT THE HEROIN CAPSULE UNLAWFULLY SEIZED FROM HIS HOME
IN HIS PRESENCE BACK IN FEBRUARY 1950.  THE DEFENDANT STOUTLY DENIED
THAT ANY NARCOTICS WERE TAKEN FROM HIM AT THAT TIME.  (FN1)  THE
GOVERNMENT THEN PUT ON THE STAND ONE OF THE OFFICERS WHO HAD
PARTICIPATED IN THE UNLAWFUL SEARCH AND SEIZURE AND ALSO THE CHEMIST
WHO HAD ANALYZED THE HEROIN CAPSULE THERE SEIZED.  THE TRIAL JUDGE
ADMITTED THIS EVIDENCE, BUT CAREFULLY CHARGED THE JURY THAT IT WAS NOT
TO BE USED TO DETERMINE WHETHER THE DEFENDANT HAD COMMITTED THE CRIMES
HERE CHARGED, BUT SOLELY FOR THE PURPOSE OF IMPEACHING THE DEFENDANT'S
CREDIBILITY.  THE DEFENDANT WAS CONVICTED, AND THE COURT OF APPEALS FOR
THE EIGHTH CIRCUIT AFFIRMED, ONE JUDGE DISSENTING.  201 F.2D 715.  THE
QUESTION WHICH DIVIDED THAT COURT, AND THE SOLE ISSUE HERE, IS WHETHER
THE DEFENDANT'S ASSERTION ON DIRECT EXAMINATION THAT HE HAD NEVER
POSSESSED ANY NARCOTICS OPENED THE DOOR, SOLELY FOR THE PURPOSE OF
ATTACKING THE DEFENDANT'S CREDIBILITY, TO EVIDENCE OF THE HEROIN
UNLAWFULLY SEIZED IN CONNECTION WITH THE EARLIER PROCEEDING.  BECAUSE
THIS QUESTION PRESENTS A NOVEL ASPECT OF THE SCOPE OF THE DOCTRINE OF
WEEKS V. UNITED STATES, 232 U.S. 383, WE GRANTED CERTIORARI.  345 U.S.
992. 

THE GOVERNMENT CANNOT VIOLATE THE FOURTH AMENDMENT (FN2) - IN THE
ONLY WAY IN WHICH THE GOVERNMENT CAN DO ANYTHING, NAMELY THROUGH ITS
AGENTS - AND USE THE FRUITS OF SUCH UNLAWFUL CONDUCT TO SECURE A
CONVICTION.  WEEKS V. UNITED STATES, SUPRA.  NOR CAN THE GOVERNMENT
MAKE INDIRECT USE OF SUCH EVIDENCE FOR ITS CASE, SILVERTHORNE LUMBER
CO. V. UNITED STATES, 251 U.S. 385, OR SUPPORT A CONVICTION ON EVIDENCE
OBTAINED THROUGH LEADS FROM THE UNLAWFULLY OBTAINED EVIDENCE, CF.
NARDONE V. UNITED STATES, 308 U.S. 338.  ALL THESE METHODS ARE
OUTLAWED, AND CONVICTIONS OBTAINED BY MEANS OF THEM ARE INVALIDATED,
BECAUSE THEY ENCOURAGE THE KIND OF SOCIETY THAT IS OBNOXIOUS TO FREE
MEN. 

IT IS ONE THING TO SAY THAT THE GOVERNMENT CANNOT MAKE AN AFFIRMATIVE
USE OF EVIDENCE UNLAWFULLY OBTAINED.  IT IS QUITE ANOTHER TO SAY THAT
THE DEFENDANT CAN TURN THE ILLEGAL METHOD BY WHICH EVIDENCE IN THE
GOVERNMENT'S POSSESSION WAS OBTAINED TO HIS OWN ADVANTAGE, AND PROVIDE
HIMSELF WITH A SHIELD AGAINST CONTRADICTION OF HIS UNTRUTHS.  SUCH AN
EXTENSION OF THE WEEKS DOCTRINE WOULD BE A PERVERSION OF THE FOURTH
AMENDMENT. 

TAKE THE PRESENT SITUATION.  OF HIS OWN ACCORD, THE DEFENDANT WENT
BEYOND A MERE DENIAL OF COMPLICITY IN THE CRIMES OF WHICH HE WAS
CHARGED AND MADE THE SWEEPING CLAIM THAT HE HAD NEVER DEALT IN OR
POSSESSED ANY NARCOTICS.  OF COURSE, THE CONSTITUTION GUARANTEES A
DEFENDANT THE FULLEST OPPORTUNITY TO MEET THE ACCUSATION AGAINST HIM. 
HE MUST BE FREE TO DENY ALL THE ELEMENTS OF THE CASE AGAINST HIM
WITHOUT THEREBY GIVING LEAVE TO THE GOVERNMENT TO INTRODUCE BY WAY OF
REBUTTAL EVIDENCE ILLEGALLY SECURED BY IT, AND THEREFORE NOT AVAILABLE
FOR ITS CASE IN CHIEF.  BEYOND THAT, HOWEVER, THERE IS HARDLY
JUSTIFICATION FOR LETTING THE DEFENDANT AFFIRMATIVELY RESORT TO
PERJURIOUS TESTIMONY IN RELIANCE ON THE GOVERNMENT'S DISABILITY TO
CHALLENGE HIS CREDIBILITY.  (FN3) 

THE SITUATION HERE INVOLVED IS TO BE SHARPLY CONTRASTED WITH THAT
PRESENTED BY AGNELLO V. UNITED STATES, 269 U.S. 20.  THERE THE
GOVERNMENT, AFTER HAVING FAILED IN ITS EFFORTS TO INTRODUCE THE TAINTED
EVIDENCE IN ITS CASE IN CHIEF, TRIED TO SMUGGLE IT IN ON CROSS
EXAMINATION BY ASKING THE ACCUSED THE BROAD QUESTION "DID YOU EVER SEE
NARCOTICS BEFORE?"  (FN4)  AFTER ELICITING THE EXPECTED DENIAL, IT
SOUGHT TO INTRODUCE EVIDENCE OF NARCOTICS LOCATED IN THE DEFENDANT'S
HOME BY MEANS OF AN UNLAWFUL SEARCH AND SEIZURE, IN ORDER TO DISCREDIT
THE DEFENDANT.  IN HOLDING THAT THE GOVERNMENT COULD NO MORE WORK IN
THIS EVIDENCE ON CROSS-EXAMINATION THAN IT COULD IN ITS CASE IN CHIEF,
THE COURT FORESHADOWED, PERHAPS UNWITTINGLY, THE RESULT WE REACH
TODAY: 

"AND THE CONTENTION THAT THE EVIDENCE OF THE SEARCH AND SEIZURE WAS
ADMISSIBLE IN REBUTTAL IS WITHOUT MERIT.  IN HIS DIRECT EXAMINATION,
AGNELLO WAS NOT ASKED AND DID NOT TESTIFY CONCERNING THE CAN OF
COCAINE.  IN CROSS-EXAMINATION, IN ANSWER TO A QUESTION PERMITTED OVER
HIS OBJECTION, HE SAID HE HAD NEVER SEEN IT.  HE DID NOTHING TO WAIVE
HIS CONSTITUTIONAL PROTECTION OR TO JUSTIFY CROSS-EXAMINATION IN
RESPECT OF THE EVIDENCE CLAIMED TO HAVE BEEN OBTAINED BY THE SEARCH
...  ."  269 U.S., AT 35. 

THE JUDGMENT IS AFFIRMED. 

FN1  THIS DENIAL SQUARELY CONTRADICTED THE AFFIDAVIT FILED BY THE
DEFENDANT IN THE EARLIER PROCEEDING, IN CONNECTION WITH HIS MOTION
UNDER RULE 41(E) TO SUPPRESS THE EVIDENCE UNLAWFULLY SEIZED. 

FN2  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED  ...  ." 

FN3  CF. MICHELSON V. UNITED STATES, 335 U.S. 469, 479:  "THE PRICE A
DEFENDANT MUST PAY FOR ATTEMPTING TO PROVE HIS GOOD NAME IS TO THROW
OPEN THE ENTIRE SUBJECT WHICH THE LAW HAS KEPT CLOSED FOR HIS BENEFIT
AND TO MAKE HIMSELF VULNERABLE WHERE THE LAW OTHERWISE SHIELDS HIM." 

THE UNDERLYING RATIONALE OF THE MICHELSON CASE ALSO DISPOSES OF THE
EVIDENTIARY QUESTION RAISED BY PETITIONER, TO WIT, "WHETHER DEFENDANT'S
ACTUAL GUILT UNDER A FORMER INDICTMENT WHICH WAS DISMISSED MAY BE
PROVED BY EXTRINSIC EVIDENCE INTRODUCED TO IMPEACH HIM IN A PROSECUTION
FOR A SUBSEQUENT OFFENSE." 

FN4  TRANSCRIPT OF RECORD, P. 476, AGNELLO V. UNITED STATES, 269 U.S.
20. 
..END :











WESTERN AIR LINES, INC. V. CIVIL AERONAUTICS BOARD 347 U.S. 67 


NO. 225.  ARGUED DECEMBER 9-10, 1953 - DECIDED FEBRUARY 1, 1954 - 92
U.S. APP. D.C. 248, 207 F.2D 200, AFFIRMED. 


CIVIL AERONAUTICS BOARD, IN FIXING MAIL-PAY SUBSIDY FOR AIR CARRIERS,
TO "TAKE INTO CONSIDERATION  ...  THE NEED OF EACH SUCH AIR CARRIER FOR
COMPENSATION  ...  SUFFICIENT  ...  TOGETHER WITH ALL OTHER REVENUE OF
THE AIR CARRIER, TO ENABLE SUCH AIR CARRIER  ...  TO MAINTAIN AND
CONTINUE THE DEVELOPMENT" OF A NATIONAL AIR-TRANSPORTATION SYSTEM. 
HELD:  IN FIXING MAIL-PAY SUBSIDY FOR THE AIR CARRIER IN THIS CASE, THE
BOARD WAS REQUIRED TO TAKE INTO CONSIDERATION THE CARRIER'S PROFITS
DERIVED FROM (1) THE OPERATION OF RESTAURANTS AND OTHER CONCESSIONS AT
AIRPORTS, (2) THE SALE OF TANGIBLE ASSETS TO ANOTHER AIR CARRIER, AND
(3) THE SALE OF A ROUTE TO ANOTHER AIR CARRIER.  PP. 68-73. 

(A)  THE "NEED" OF THE CARRIER WHICH THE BOARD IS REQUIRED TO
CONSIDER IN FIXING A SUBSIDY RATE IS "THE NEED" OF THE CARRIER AS A
WHOLE.  P. 71. 

(B)  THE "ALL OTHER REVENUE" WHICH THE BOARD IS REQUIRED TO CONSIDER
INCLUDES NONFLIGHT INCOME FROM INCIDENTAL CARRIER ACTIVITIES, NOT
TRANSPORTATION REVENUE ALONE.  P. 71. 

(C)  THE PROFIT DERIVED BY A CARRIER FROM THE SALE OF A ROUTE TO
ANOTHER CARRIER IS ALSO "OTHER REVENUE" WITHIN THE MEANING OF SEC.
406(B).  PP. 71-72. 

(D)  THE STANDARD PRESCRIBED BY CONGRESS TO GUIDE THE BOARD IN FIXING
MAIL-PAY SUBSIDY IS "THE NEED" OF THE CARRIER; AND THE BOARD WAS NOT
JUSTIFIED, ON THE RECORD IN THIS CASE, IN DISREGARDING PROFITS DERIVED
FROM THE SALE OF A ROUTE TO ANOTHER CARRIER, IN ORDER "TO SAFEGUARD THE
INCENTIVE FOR VOLUNTARY ROUTE TRANSFERS."  PP. 72-73. 

WESTERN AIR LINES, INC. V. CIVIL AERONAUTICS BOARD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 224, CIVIL AERONAUTICS BOARD V. SUMMERFIELD,
POSTMASTER GENERAL, ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

THE CIVIL AERONAUTICS BOARD ISSUED AN ORDER FIXING MAIL-PAY SUBSIDY
FOR AN AIR CARRIER.  14 C.A.B. 201.  BOTH THE POSTMASTER GENERAL AND
THE CARRIER SOUGHT REVIEW OF THE BOARD'S ORDER IN THE COURT OF APPEALS,
WHICH SUSTAINED THE ORDER IN PART AND REVERSED IT IN PART.  92 U.S.
APP. D.C. 248, 207 F.2D 200.  THIS COURT GRANTED CERTIORARI.  346 U.S.
811.  AFFIRMED, P. 73. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES, HERE ON WRITS OF CERTIORARI TO THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA, PRESENT AN IMPORTANT QUESTION IN THE
CONSTRUCTION OF SEC. 406(B) OF THE CIVIL AERONAUTICS ACT OF 1938, 52
STAT. 973, AS AMENDED, 49 U.S.C. SEC. 401 ET SEQ. SECTION 406(A)
AUTHORIZES THE CIVIL AERONAUTICS BOARD TO FIX "FAIR AND REASONABLE
RATES OF COMPENSATION FOR THE TRANSPORTATION OF MAIL BY AIRCRAFT." 
(FN1)  SECTION 406(B) REQUIRES THE BOARD TO TAKE INTO CONSIDERATION,
INTER ALIA, "THE NEED OF EACH SUCH AIR CARRIER FOR COMPENSATION FOR THE
TRANSPORTATION OF MAIL SUFFICIENT TO INSURE THE PERFORMANCE OF SUCH
SERVICE, AND, TOGETHER WITH ALL OTHER REVENUE OF THE AIR CARRIER, TO
ENABLE SUCH AIR CARRIER UNDER HONEST, ECONOMICAL, AND EFFICIENT
MANAGEMENT, TO MAINTAIN AND CONTINUE THE DEVELOPMENT OF AIR
TRANSPORTATION TO THE EXTENT AND OF THE CHARACTER AND QUALITY REQUIRED
FOR THE COMMERCE OF THE UNITED STATES, THE POSTAL SERVICE, AND THE
NATIONAL DEFENSE."  (FN2)  THE CONTROVERSY IN THE PRESENT CASES TURNS
ON THE MEANING OF THE WORDS "THE NEED OF EACH SUCH AIR CARRIER" AND
"ALL OTHER REVENUE OF THE AIR CARRIER." 

WESTERN AIR LINES FILED A PETITION FOR A RATE ORDER APRIL 26, 1944. 
IN 1951 THE BOARD FINALLY DETERMINED THE RATE APPLICABLE BETWEEN MAY 1,
1944, AND DECEMBER 31, 1948.  DURING THIS OPEN-RATE PERIOD WESTERN
REALIZED SOME $88,000 IN PROFITS FROM THE OPERATION OF RESTAURANTS AND
OTHER CONCESSIONS AT AIRPORT TERMINALS.  THE BOARD DETERMINED THAT THIS
INCOME WAS "OTHER REVENUE" AVAILABLE TO REDUCE MAIL PAY.  DURING THE
OPEN-RATE PERIOD WESTERN WITH APPROVAL OF THE BOARD (FN3) SOLD TO
UNITED AIR LINES ITS CERTIFICATE AND PROPERTIES FOR AIR OPERATIONS
(ROUTE 68) BETWEEN LOS ANGELES AND DENVER, AT A PROFIT IN EXCESS OF
$1,000,000.  THE BOARD TREATED THE PROFIT DERIVED FROM THE SALE OF THE
TANGIBLE ASSETS (APPROXIMATELY $650,000) AS "OTHER REVENUE" AND REDUCED
THE MAIL CONPENSATION BY THAT AMOUNT.  BUT IT DECLINED TO REDUCE THE
MAIL-PAY ALLOWANCE BY THE PROFIT REALIZED FROM THE SALE OF THE
"INTANGIBLE VALUE" OF THE ROUTE.  THE BOARD CONCLUDED THAT THAT AMOUNT
SHOULD NOT BE USED IN OFFSET BECAUSE IT WANTED "TO ENCOURAGE
IMPROVEMENT OF THE AIR ROUTE PATTERN THROUGH VOLUNTARY ROUTE TRANSFERS
BY OTHER AIR CARRIERS."  14 C.A.B., AT 246. 

ON REVIEW, WESTERN CHALLENGED THE INCLUSION IN "OTHER REVENUE" OF THE
AMOUNTS RECEIVED FROM THE CONCESSIONS AND THE PROFIT FROM THE SALE OF
THE TANGIBLE ASSETS.  THE POSTMASTER GENERAL (FN4) CHALLENGED THE
EXCLUSION FROM THE OFFSETS OF THE PROFIT WESTERN MADE ON THE SALE OF
THE INTANGIBLES.   THE COURT OF APPEALS SUSTAINED THE BOARD IN
WESTERN'S PETITION AND REVERSED IT IN THE OTHER PETITION AND REMANDED
THE CASE TO THE BOARD FOR THE FIXING OF A NEW RATE AFTER DEDUCTING THE
ENTIRE PROFIT FROM THE SALE OF WESTERN'S ROUTE 68.  92 U.S. APP. D.C.
248, 207 F.2D 200. 

SOME AIR-MAIL RATES ARE SERVICE RATES, BASED ON MAIL-MILES FLOWN;
(FN5) OTHERS ARE SUBSIDY RATES BASED ON "NEED."  WE ARE HERE CONCERNED
WITH A SUBSIDY RATE WHICH IN WESTERN'S CASE WAS FIXED SO AS TO PRODUCE
A 7-PERCENT RETURN ON INVESTMENT AFTER TAXES FOR THE PERIOD IN
QUESTION.  IN OTHER WORDS, THE END PROBLEM CONCERNS NOT THE AMOUNT OF
MONEY PROVIDED FOR OPERATION AND DEVELOPMENT BUT THE AMOUNT OF PROFIT
OVER AND ABOVE ALL SUCH SUMS. 

WE READ THE ACT AS MEANING THAT "THE NEED" OF THE CARRIER WHICH
CONGRESS HAS DIRECTED THE BOARD TO CONSIDER IN FIXING A SUBSIDY RATE IS
"THE NEED" OF THE CARRIER AS A WHOLE.  THE NEED SPECIFIED IN SEC.
406(B) IS MEASURED BY "COMPENSATION FOR THE TRANSPORTATION OF MAIL
SUFFICIENT TO INSURE THE PERFORMANCE OF SUCH SERVICE, AND, TOGETHER
WITH ALL OTHER REVENUE OF THE AIR CARRIER, TO ENABLE" IT TO DEVELOP AIR
TRANSPORTATION, ETC.  THE "COMPENSATION FOR THE TRANSPORTATION OF MAIL"
IS FLIGHT INCOME.  IT SEEMS TOO CLEAR FOR ARGUMENT THAT "ALL OTHER
REVENUE" WOULD INCLUDE NONFLIGHT INCOME FROM INCIDENTAL AIR-CARRIER
ACTIVITIES.  WE HAVE FOUND NOTHING PERSUASIVE AS INDICATING THAT "ALL
OTHER REVENUE" MEANS TRANSPORTATION REVENUE.  THE INCLUSIVE NATURE OF
THE CATEGORY PRECLUDES A NARROW READING.  IF THE CARRIER'S TREASURY IS
LUSH, "THE NEED" FOR SUBSIDY DECREASES WHETHER THE OPULENCE IS DUE TO
TRANSPORTATION ACTIVITIES OR TO ACTIVITIES INCIDENTAL THERETO. 

BY THE SAME REASONING THE PROFIT MADE BY WESTERN ON THE SALE OF ROUTE
68 IS ALSO "OTHER REVENUE" WITHIN THE MEANING OF SEC. 406(B).  THE
BOARD AGREES; BUT IT GOES ON TO SAY THAT THAT IS NOT THE END OF THE
MATTER, SINCE THE REDUCTION OF THE SUBSIDY BY THE ENTIRE AMOUNT OF THE
PROFIT IS NOT MANDATORY.  THE ACT, IT IS TRUE, MERELY SAYS THAT THE
BOARD IN DETERMINING THE RATE "SHALL TAKE INTO CONSIDERATION" VARIOUS
FACTORS, INCLUDING "THE NEED" OF THE CARRIER (SEC. 406(B)); AND THE
"NEED," AS WE HAVE NOTED, IS NOT MERELY FOR COMPENSATION TO INSURE THE
TRANSPORTATION OF MAIL BUT COMPENSATION FOR "THE DEVELOPMENT OF AIR
TRANSPORTATION" UNDER THE PRESCRIBED STANDARDS.  BY THAT STANDARD THE
"NEED" IN A GIVEN CASE MAY BE SO GREAT THAT PROFITS FROM OTHER
TRANSACTIONS SHOULD BE ALLOWED IN ADDITION TO THE NORMAL RATE.  OR, ON
THE OTHER HAND, THE TOTAL REVENUES OF THE CARRIER AS AGAINST ITS
OPERATING COSTS AND DEVELOPMENTAL PROGRAM MAY BE SO GREAT THAT "THE
NEED" FOR SUBSIDY DISAPPEARS AND THE CARRIER IS TRANSFERRED TO THE
SERVICE RATE FOR MAIL PAY.  THE DIFFICULTY HERE IS THAT THE BOARD, IN
CONCLUDING THAT A PART OF THE PROFITS FROM THE SALE TO UNITED SHOULD
NOT BE USED AS AN OFFSET, FORSOOK THE STANDARD OF "NEED" AND ADOPTED A
DIFFERENT ONE.  THE BOARD WANTED "TO SAFEGUARD THE INCENTIVE FOR
VOLUNTARY ROUTE TRANSFERS."  IT THOUGHT IT COULD NOT KEEP THIS
INCENTIVE ALIVE IN THE INDUSTRY UNLESS THE PROFIT WERE ALLOWED IN
ADDITION TO THE SUBSIDY.  THE BOARD THOUGHT IT IMPORTANT TO KEEP THAT
INCENTIVE ALIVE IN ORDER TO PROMOTE ROUTE TRANSFERS AND MERGERS WHICH
THE BOARD COULD NOT COMPEL.  THE BOARD THEREFORE ARGUES THAT ALLOWANCE
OF THE PROFIT OVER AND ABOVE A SUBSIDY ENABLES WESTERN "TO MAINTAIN AND
CONTINUE THE DEVELOPMENT OF AIR TRANSPORTATION" WITHIN THE MEANING OF
SEC. 406(B), SINCE THE SALE OF ROUTE 68 WAS CONSISTENT WITH THE
DEVELOPMENT PROGRAM WHICH THE BOARD DEEMED DESIRABLE. 

THE ACT, HOWEVER, SPEAKS OF "THE NEED" OF THE CARRIER FOR THE
SUBSIDY, NOT THE EFFECT OF A POLICY ON CARRIERS IN GENERAL.  THIS IS
NOT A CASE OF RECAPTURE OF EARNINGS.  WESTERN KEEPS THE ENTIRE AMOUNT
OF THE PROFIT.  THE ISSUE IS HOW MUCH ADDITIONAL MONEY WESTERN IS TO
RECEIVE IN THE FORM OF A SUBSIDY.  WESTERN'S "NEED" IS THE MEASURE OF
THE AMOUNT AUTHORIZED BY CONGRESS.  NO FINDING WAS MADE THAT THERE WAS
"NEED" FOR THE ADDITIONAL SUBSIDY, IN THE SENSE THAT OTHERWISE WESTERN
WOULD NOT HAVE BEEN WILLING OR ABLE TO MAKE THE TRANSFER OF ROUTE 68 IN
ACCORDANCE WITH THE DEVELOPMENT PROGRAM WHICH THE BOARD DEEMS
ADVISABLE.  WHETHER SUCH A FINDING WOULD HAVE SATISFIED THE STATUTORY
REQUIREMENT IS A QUESTION WE DO NOT REACH, SINCE THE OPINION OF THE
BOARD MAKES PLAIN THAT OTHER CONSIDERATIONS WERE CONTROLLING: 

"  ...  OUR DECISION NOT TO INCLUDE THE NET PROFIT FROM THE SALE OF
INTANGIBLES WAS REACHED SOLELY BECAUSE WE ARE THUS SEEKING TO ENCOURAGE
IMPROVEMENT OF THE AIR ROUTE PATTERN THROUGH VOLUNTARY ROUTE TRANSFERS
BY OTHER AIR CARRIERS."  14 C.A.B., AT 246. 

THE STANDARD PRESCRIBED BY CONGRESS, HOWEVER, IS "THE NEED" OF THE
AIR CARRIER WHOSE SUBSIDY RATES ARE BEING FIXED.  AFFIRMED. 

FN1  "THE BOARD IS EMPOWERED AND DIRECTED, UPON ITS OWN INITIATIVE OR
UPON PETITION OF THE POSTMASTER GENERAL OR AN AIR CARRIER, (1) TO FIX
AND DETERMINE FROM TIME TO TIME, AFTER NOTICE AND HEARING, THE FAIR AND
REASONABLE RATES OF COMPENSATION FOR THE TRANSPORTATION OF MAIL BY
AIRCRAFT, THE FACILITIES USED AND USEFUL THEREFOR, AND THE SERVICES
CONNECTED THEREWITH (INCLUDING THE TRANSPORTATION OF MAIL BY AN AIR
CARRIER BY OTHER MEANS THAN AIRCRAFT WHENEVER SUCH TRANSPORTATION IS
INCIDENTAL TO THE TRANSPORTATION OF MAIL BY AIRCRAFT OR IS MADE
NECESSARY BY CONDITIONS OF EMERGENCY ARISING FROM AIRCRAFT OPERATION),
BY EACH HOLDER OF A CERTIFICATE AUTHORIZING THE TRANSPORTATION OF MAIL
BY AIRCRAFT, AND TO MAKE SUCH RATES EFFECTIVE FROM SUCH DATE AS IT
SHALL DETERMINE TO BE PROPER; (2) TO PRESCRIBE THE METHOD OR METHODS,
BY AIRCRAFT-MILE, POUND-MILE, WEIGHT, SPACE, OR ANY COMBINATION
THEREOF, OR OTHERWISE, FOR ASCERTAINING SUCH RATES OF COMPENSATION FOR
EACH AIR CARRIER OR CLASS OF AIR CARRIERS; AND (3) TO PUBLISH THE SAME;
AND THE RATES SO FIXED AND DETERMINED SHALL BE PAID BY THE POSTMASTER
GENERAL FROM APPROPRIATIONS FOR THE TRANSPORTATION OF MAIL BY
AIRCRAFT." 

FN2  "IN FIXING AND DETERMINING FAIR AND REASONABLE RATES OF
COMPENSATION UNDER THIS SECTION, THE BOARD, CONSIDERING THE CONDITIONS
PECULIAR TO TRANSPORTATION BY AIRCRAFT AND TO THE PARTICULAR AIR
CARRIER OR CLASS OF AIR CARRIERS, MAY FIX DIFFERENT RATES FOR DIFFERENT
AIR CARRIERS OR CLASSES OF AIR CARRIERS, AND DIFFERENT CLASSES OF
SERVICE.  IN DETERMINING THE RATE IN EACH CASE, THE BOARD SHALL TAKE
INTO CONSIDERATION, AMONG OTHER FACTORS, THE CONDITION THAT SUCH AIR
CARRIERS MAY HOLD AND OPERATE UNDER CERTIFICATES AUTHORIZING THE
CARRIAGE OF MAIL ONLY BY PROVIDING NECESSARY AND ADEQUATE FACILITIES
AND SERVICE FOR THE TRANSPORTATION OF MAIL; SUCH STANDARDS RESPECTING
THE CHARACTER AND QUALITY OF SERVICE TO BE RENDERED BY AIR CARRIERS AS
MAY BE PRESCRIBED BY OR PURSUANT TO LAW; AND THE NEED OF EACH SUCH AIR
CARRIER FOR COMPENSATION FOR THE TRANSPORTATION OF MAIL SUFFICIENT TO
INSURE THE PERFORMANCE OF SUCH SERVICE, AND, TOGETHER WITH ALL OTHER
REVENUE OF THE AIR CARRIER, TO ENABLE SUCH AIR CARRIER UNDER HONEST,
ECONOMICAL, AND EFFICIENT MANAGEMENT, TO MAINTAIN AND CONTINUE THE
DEVELOPMENT OF AIR TRANSPORTATION TO THE EXTENT AND OF THE CHARACTER
AND QUALITY REQUIRED FOR THE COMMERCE OF THE UNITED STATES, THE POSTAL
SERVICE, AND THE NATIONAL DEFENSE." 

FN3  UNITED-WESTERN, ACQUISITION OF AIR CARRIER PROPERTY, 8 C.A.B.
298 (1947). 

FN4  THE POSTMASTER GENERAL HAS NOT ONLY THE DUTY TO PAY THE MAIL
RATES FROM APPROPRIATIONS FOR THE TRANSPORTATION OF MAIL BY AIRCRAFT
BUT ALSO IS GIVEN STANDING BY SEC. 406(A) TO PETITION THE BOARD TO FIX
AND DETERMINE THE RATES.  A CHANGE IN THE FUNCTION OF THE POSTMASTER
GENERAL WAS MADE BY REORGANIZATION PLAN NO. 10 OF 1953, EFFECTIVE
OCTOBER 1, 1953, 67 STAT. 644. 

FN5  SEE, FOR EXAMPLE, EASTERN AIR LINES, MAIL RATES, 3 C.A.B. 733
(1942). 
..END :





DELTA AIR LINES, INC. V. SUMMERFIELD POSTMASTER GENERAL 347 U.S. 74 


NO. 223.  ARGUED DECEMBER 9-10, 1953 - DECIDED FEBRUARY 1, 1954 - 92
U.S. APP. D.C. 256, 207 F.2D 207, AFFIRMED. 


CIVIL AERONAUTICS BOARD, IN FIXING MAIL-PAY SUBSIDY FOR AIR CARRIERS,
TO "TAKE INTO CONSIDERATION  ...  THE NEED OF EACH SUCH AIR CARRIER FOR
COMPENSATION  ...  SUFFICIENT  ...  TOGETHER WITH ALL OTHER REVENUE OF
THE AIR CARRIER, TO ENABLE SUCH AIR CARRIER  ...  TO MAINTAIN AND
CONTINUE THE DEVELOPMENT" OF A NATIONAL AIR-TRANSPORTATION SYSTEM. 
HELD:  IN FIXING THE MAIL-PAY SUBSIDY FOR THE FOREIGN OPERATIONS OF THE
CARRIER HERE INVOLVED DURING A PAST PERIOD, THE BOARD ERRED IN REFUSING
TO OFFSET AGAINST THE CARRIER'S NEED FOR FOREIGN OPERATIONS EXCESS
EARNINGS DURING THE SAME PERIOD ON ITS DOMESTIC OPERATIONS.  PP. 75
80. 

(A)  AN AIR-MAIL SUBSIDY MAY NOT EXCEED THE CARRIER'S "NEED," WHICH
IS TO BE MEASURED BY THE ENTIRETY OF THE CARRIER'S OPERATIONS, NOT BY
THE LOSSES OF ONE DIVISION OR DEPARTMENT, EVEN WHEN A RATE IS FIXED FOR
A CLASS OF SERVICE, AS AUTHORIZED BY SEC. 406(B).  PP. 78-79. 

(B)  ARGUMENTS OF POLICY AGAINST THIS CONCLUSION ARE FOR CONGRESS,
NOT THE COURTS.  PP. 79-80. 

DELTA AIR LINES, INC. V. SUMMERFIELD, POSTMASTER GENERAL, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 222, CIVIL AERONAUTICS BOARD V. SUMMERFIELD,
POSTMASTER GENERAL, ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

THE CIVIL AERONAUTICS BOARD ISSUED AN ORDER FIXING MAIL-PAY SUBSIDY
FOR AN AIR CARRIER.  14 C.A.B. 681.  ON THE POSTMASTER GENERAL'S
PETITION FOR REVIEW, THE COURT OF APPEALS REVERSED.  92 U.S. APP. D.C.
256, 207 F.2D 207.  THIS COURT GRANTED CERTIORARI.  346 U.S. 811. 
AFFIRMED, P. 80. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

DELTA AIR LINES, PETITIONER IN NO. 223, IS THE SUCCESSOR BY MERGER TO
CHICAGO AND SOUTHERN AIR LINES (C&S).  C&S WAS AN AIR CARRIER WHICH
CONDUCTED BOTH DOMESTIC AND FOREIGN OPERATIONS PRIOR TO THE MERGER. 
THE PRESENT CASE INVOLVES SUBSIDY MAIL PAY FOR ITS FOREIGN OPERATIONS
FROM 1946 THROUGH 1950. 

IN 1948 THE BOARD, ON APPLICATIONS MADE BY C&S IN 1944 AND 1945,
FIXED A PROSPECTIVE ANNUAL SUBSIDY FOR ITS DOMESTIC OPERATIONS
BEGINNING JANUARY 1, 1948, WHICH THE BOARD ESTIMATED WOULD YIELD A NET
RETURN AFTER TAXES OF 7.4 PERCENT ON THAT PART OF ITS INVESTMENT
ALLOCABLE TO THOSE OPERATIONS.  9 C.A.B. 786.  THE FOLLOWING THREE
YEARS - 1948, 1949, AND 1950 - THE RATES IN OPERATION PRODUCED A
SUBSIDY OF MORE THAN $654,000 IN EXCESS OF A 7.4-PERCENT RETURN. 

IN 1946 C&S APPLIED FOR SUBSIDY MAIL PAY ON ITS LATIN-AMERICAN
ROUTES.  ON OCTOBER 18, 1951, THE BOARD ISSUED ITS OPINION AND ORDER. 
RATES WERE FIXED RETROACTIVELY FROM NOVEMBER 1, 1946, TO DECEMBER 15,
1950, AND PROSPECTIVELY FROM DECEMBER 16, 1950.  THE SUBSIDY AWARDED
WAS DESIGNED TO GIVE THE CARRIER A 7-PERCENT RETURN, ON THE PROPERTY
ALLOCABLE TO FOREIGN OPERATIONS, AFTER TAXES FOR THE PAST PERIOD, AND
10 PERCENT FOR THE FUTURE.  14 C.A.B. 681. 

IN FIXING THE SUBSIDY FOR THE PAST PERIOD, THE BOARD REFUSED TO
OFFSET AGAINST THE CARRIER'S NEED FOR FOREIGN OPERATIONS THE EXCESS
EARNINGS ON ITS DOMESTIC FLIGHTS.  IT GAVE TWO "CONSIDERATIONS OF
ECONOMIC POLICY" FOR THAT POSITION.  (FN1)  FIRST, THE BOARD SAID IT
WOULD PUT AN "UNJUSTIFIABLE STRAIN" ON DOMESTIC OPERATIONS IF THE
LATTER WERE REQUIRED TO CARRY THE INTERNATIONAL OPERATIONS.  SECOND, IT
CONCLUDED THAT REGULATORY ENDS WOULD BE BETTER SERVED BY MAINTAINING
"THE COMPARATIVE STATUS BETWEEN THOSE DOMESTIC OPERATORS WHICH HAVE
FOREIGN ROUTES AS AGAINST THOSE WHICH DO NOT HAVE FOREIGN ROUTES." 

ON THE POSTMASTER GENERAL'S POSITION FOR REVIEW THE COURT OF APPEALS
REVERSED THE BOARD.  92 U.S. APP. D.C. 256, 207 F.2D 207.  THE CASES
ARE HERE ON CERTIORARI, 346 U.S. 811, AND WERE ARGUED WITH NOS. 224 AND
225, DECIDED THIS DAY, ANTE, P. 67. 

AS WE HAVE ALREADY NOTED IN THE COMPANION CASES, SEC. 406(A) OF THE
CIVIL AERONAUTICS ACT, 52 STAT. 998, 49 U.S.C. SEC. 486(A), DIRECTS THE
BOARD TO FIX "FAIR AND REASONABLE RATES OF COMPENSATION FOR THE
TRANSPORTATION OF MAIL BY AIRCRAFT."  SECTION 406(B) PROVIDES THAT THE
BOARD IN DETERMINING THOSE RATES: 

"SHALL TAKE INTO CONSIDERATION, AMONG OTHER FACTORS,  ...  THE NEED
OF EACH SUCH AIR CARRIER FOR COMPENSATION FOR THE TRANSPORTATION OF
MAIL SUFFICIENT TO INSURE THE PERFORMANCE OF SUCH SERVICE, AND,
TOGETHER WITH ALL OTHER REVENUE OF THE AIR CARRIER, TO ENABLE SUCH AIR
CARRIER UNDER HONEST, ECONOMICAL, AND EFFICIENT MANAGEMENT, TO MAINTAIN
AND CONTINUE THE DEVELOPMENT OF AIR TRANSPORTATION TO THE EXTENT AND OF
THE CHARACTER AND QUALITY REQUIRED FOR THE COMMERCE OF THE UNITED
STATES, THE POSTAL SERVICE, AND THE NATIONAL DEFENSE." 

THE MANDATE IS THAT THE BOARD "SHALL TAKE INTO CONSIDERATION" WHAT
"THE NEED" OF THE CARRIER IS. THE ACT THUS POSES AS THE INITIAL
QUESTION FOR THE BOARD WHETHER THE FINANCIAL CONDITION OF THE CARRIER
IS SUCH THAT IT NEEDS A SUBSIDY OR HAS NO NEED FOR ONE.  THE BOARD DID
NOT FIND THAT DELTA HAD A "NEED" FOR AN ADDITIONAL $654,000.  IT MERELY
CONCLUDED THAT THOSE EXCESS DOMESTIC PROFITS SHOULD NOT "AS A MATTER OF
ECONOMIC POLICY" BE TAKEN INTO ACCOUNT IN COMPUTING A SUBSIDY FOR
INTERNATIONAL OPERATIONS.  IN THAT POSTURE THE DECISION OF THE BOARD
SEEMS NOT IN CONFORMITY WITH THE LAW. 

THE BOARD ANSWERS TO THE EFFECT THAT UNDER SEC. 406(B) IT "MAY FIX
DIFFERENT RATES FOR DIFFERENT AIR CARRIERS OR CLASSES OF AIR CARRIERS,
AND DIFFERENT CLASSES OF SERVICE."  IT MAY, THEREFORE, FIX A RATE FOR
INTERNATIONAL SERVICE.  SINCE IT MAY DO THAT, IT MAY, CONSISTENTLY WITH
RATE-MAKING DECISIONS (SEE, E.G., AMERICAN TOLL BRIDGE CO. V. RAILROAD
COMMISSION, 307 U.S. 486, 494), FIX THE RATE AT A LEVEL WHICH WILL
SUSTAIN THE PARTICULAR UNIT.  THEREFORE THE BOARD NEED DO NO MORE UNDER
SEC. 406(B) WHEN IT FIXES A RATE FOR INTERNATIONAL SERVICE THAN OFFSET
REVENUE ATTRIBUTABLE TO THE CLASS OF SERVICE FOR WHICH THE RATE IS
MADE.  THAT IS THE ARGUMENT. 

THERE ARE ASPECTS OF TRADITIONAL RATE-MAKING THAT ARE CARRIED OVER
INTO THE ACT.  THUS WE HELD IN T.W.A. V. CIVIL AERONAUTICS BOARD, 336
U.S. 601, THAT RATES UNDER THE ACT ARE MADE RETROACTIVE ONLY TO THE
DATE OF THE APPLICATION.  WE ALSO NOTED IN THAT CASE THAT THE "NEED"
CLAUSE IN SEC. 406(B) IS NOT WHOLLY AT WAR WITH TRADITIONAL RATE-MAKING
FUNCTIONS.  ID., P. 604.  BUT THE APPLICATION OF THE "NEED" CLAUSE
WHICH THE BOARD HAS MADE IN THIS CASE IS AT WAR WITH THE LANGUAGE OF
SEC. 406(B).  THE STANDARD IS "THE NEED OF EACH SUCH AIR CARRIER."  THE
"NEED" OF THE CARRIER IS MEASURED BY THE ENTIRETY OF ITS OPERATIONS,
NOT BY THE LOSSES OF ONE DIVISION OR DEPARTMENT.  THE MEASURE OF "THE
NEED" IS AN AMOUNT OF COMPENSATION NECESSARY TO CARRY THE MAIL AND
"TOGETHER WITH ALL OTHER REVENUE OF THE AIR CARRIER" ADEQUATE FOR
MAINTENANCE AND DEVELOPMENT.  AND THE ACT DEFINES "AIR CARRIER" AS "ANY
CITIZEN OF THE UNITED STATES WHO UNDERTAKES  ...  TO ENGAGE IN AIR
TRANSPORTATION  ...  ."  SEC. 1(2).  THUS THE WORDING OF THE ACT
PRECLUDES MEASURING "THE NEED" OF THE CARRIER BY ANY OTHER UNIT THAN
THE CARRIER AS AN ENTITY. 

AS WE READ THE ACT, CONGRESS HAS ESTABLISHED A SPECIAL FORMULA FOR
THE FIXING OF A SUBSIDY RATE.  WHILE THE RATE MAY BE FOR A CLASS OF
SERVICE, THE RETURN IN FORM OF A SUBSIDY MUST BE COMPUTED WITH
REFERENCE TO THE ENTIRE OPERATIONS OF THE CARRIER.  THE REQUIREMENT IS
THAT THE BOARD OFFSET ALL OF A CARRIER'S REVENUES IN DETERMINING THE
SUBSIDY; THERE IS NO DISCRETION IN THE BOARD TO DISREGARD ANY PORTION
OF THE REVENUE BECAUSE OF ECONOMIC OR OTHER POLICY CONSIDERATIONS.  IN
OTHER WORDS, AN AIR CARRIER'S SUBSIDY NEED IS AN AMOUNT WHICH,
"TOGETHER WITH ALL OTHER REVENUE" OF THE CARRIER, WILL ENABLE IT TO
MEET AND MAINTAIN THE OBJECTIVES OF THE ACT.  THE CARRIER'S "NEED" IS
THEREFORE A LIMITING FACTOR IN THE SENSE THAT THE SUBSIDY MAY NOT
EXCEED IT.  SINCE THE BOARD DID NOT CONSTRUE AND APPLY THE ACT IN THAT
MANNER, THE COURT OF APPEALS WAS CORRECT IN REVERSING THE RATE ORDER. 

THE BOARD MAKES AN EXTENDED ARGUMENT OF POLICY AGAINST THAT POSITION
IN ELABORATION OF THE REASONS IT ADVANCED FOR NOT OFFSETTING THE EXCESS
EARNINGS FROM DOMESTIC OPERATIONS AGAINST THE INTERNATIONAL SUBSIDY
RATE.  (FN2)  IT MAINTAINS THAT MAXIMUM OPERATING EFFICIENCY ON THE
PART OF AIR CARRIERS AND THE DEVELOPMENT OF AIR TRANSPORTATION -
PROMINENT OBJECTIVES OF THE ACT (FN3) - WILL BE BETTER SERVED BY
SETTING SUBSIDY RATES ON A DIVISIONAL RATHER THAN ON A SYSTEM BASIS. 
THIS MAY BE SO.  BUT THAT IS A MATTER OF POLICY FOR CONGRESS TO
DECIDE.  AS WE READ SEC. 406(B), CONGRESS ADOPTED IN THE PRESENT ACT A
RATE FORMULA BASED ON "THE NEED" OF THE CARRIER AS MEASURED BY ITS
ENTIRE OPERATIONS, EVEN WHEN A RATE WAS BEING FIXED FOR A CLASS OF
SERVICE.  AFFIRMED. 

FN1  THE BOARD SAID: 

"IF AN OFFSET POLICY WERE ADOPTED, THE ALMOST INVARIABLE RESULT WOULD
BE THAT, AS IN THE INSTANT CASE, THE PROFITS FROM A CARRIER'S DOMESTIC
OPERATION WOULD BE USED TO SUSTAIN ANY INTERNATIONAL OPERATIONS IT
MIGHT HAVE.  RECOGNIZING THIS LIKELIHOOD, WE HESITATE TO BURDEN THE
MORE ROBUST SEGMENT OF THE INDUSTRY WITH THE OBLIGATIONS OF THE
ECONOMICALLY WEAKER PART.  FOR IF THE DOMESTIC AIR TRANSPORT SYSTEM CAN
BE KEPT FINANCIALLY SOUND, THE PUBLIC MUST ULTIMATELY BENEFIT, PUTTING
ASIDE ANY CONSIDERATION OF THE OBVIOUS ADVANTAGE OF REDUCED RATES OF
MAIL COMPENSATION.  THUS, WE ANTICIPATE THAT IF THE CARRIERS' EARNING
POSITION CONTINUES STRONG, REDUCTIONS IN THE DOMESTIC FARE LEVEL WILL
BE POSSIBLE, THEREBY GIVING IMPETUS TO THE FURTHER DEVELOPMENT OF THE
INDUSTRY.  IN ADDITION, WITH IMPROVED EARNINGS, THE DOMESTIC OPERATORS
SHOULD BE ABLE TO BENEFIT THE PUBLIC AND THEMSELVES WITH MORE MODERN
AIRCRAFT, AND WITH IMPROVED METHODS AFFORDING SAFER AND MORE EFFICIENT
OPERATIONS.  WE CANNOT ESCAPE THE THOUGHT THAT IF WE ALLOW
INTERNATIONAL OPERATIONS TO BE CARRIED ON THE BACK OF DOMESTIC
OPERATIONS, WE SHALL BE SUBJECTING THE LATTER TO AN UNJUSTIFIABLE
STRAIN.  MANY OF THE DOMESTIC OPERATORS ARE WELL ALONG THE ROAD TO SELF
SUFFICIENCY.  IT IS OUR DUTY TO SPEED THEM ON THEIR WAY, NOT THWART
THEM. 

"IT ALSO APPEARS DESIRABLE TO MAINTAIN THE COMPARATIVE STATUS BETWEEN
THOSE DOMESTIC OPERATORS WHICH HAVE FOREIGN ROUTES AS AGAINST THOSE
WHICH DO NOT HAVE FOREIGN ROUTES.  SINCE CARRIERS FALL INTO FAIRLY WELL
DEFINED CLASSES, THE BOARD IS ENABLED TO FIX UNIFORM DOMESTIC MAIL
RATES FOR GROUPS OF CARRIERS PROVIDED, OF COURSE, THAT THEIR
COMPARATIVE STATUS IS PRESERVED BY EXCLUDING CONSIDERATION OF ANY
INTERNATIONAL OPERATIONS.  A CARRIER OPERATING UNDER A CLASS RATE HAS
EVERY INCENTIVE TO OPERATE EFFICIENTLY BECAUSE IT MAY RETAIN ANY
PROFITS IT EARNS IN EXCESS OF THE ESTIMATED RETURN TO BE AFFORDED BY
THE UNIFORM RATE.  IT IS ALSO ADMINISTRATIVELY DESIRABLE TO PRESERVE A
COMPARATIVE STATUS BETWEEN CARRIERS BECAUSE THE BOARD HAS BEEN ABLE TO
ANALYZE THE OPERATIONS OF EACH CARRIER WITHIN A CLASS IN THE LIGHT OF
THE RESULTS ACHIEVED BY OTHERS WITHIN THE SAME CLASS.  THE COMPARISON
TECHNIQUE OF RATE-MAKING HAS PROVED TO BE THE MOST SATISFACTORY AND
PRACTICABLE AVAILABLE TO THE BOARD.  IF WE WERE REQUIRED TO FIX RATES
FOR BOTH DOMESTIC AND INTERNATIONAL OPERATIONS AT THE SAME TIME, IT
WOULD BE DIFFICULT, IF NOT IMPOSSIBLE, TO FIND A SUITABLE BASIS FOR A
COMPARISON TECHNIQUE OF ANALYSIS. 

"IN VIEW OF THE FOREGOING, WE FIND THAT THE EARNINGS FROM C&S'
DOMESTIC ROUTES SHOULD NOT BE USED TO OFFSET THE 'NEED' RESULTING FROM
THE CARRIER'S INTERNATIONAL ROUTES.  THIS CONCLUSION STEMS FROM
CONSIDERATIONS OF ECONOMIC POLICY; WE ARE NOT DECIDING THE QUESTION OF
OUR LEGAL POWER TO MAKE SUCH AN OFFSET."  14 C.A.B., AT 683. 

FN2  SEE NOTE 1, SUPRA. 

FN3  SECTION 2 OF THE ACT PROVIDES: 

"IN THE EXERCISE AND PERFORMANCE OF ITS POWERS AND DUTIES UNDER THIS
ACT, THE BOARD SHALL CONSIDER THE FOLLOWING, AMONG OTHER THINGS, AS
BEING IN THE PUBLIC INTEREST, AND IN ACCORDANCE WITH THE PUBLIC
CONVENIENCE AND NECESSITY: 

"(A)  THE ENCOURAGEMENT AND DEVELOPMENT OF AN AIR-TRANSPORTATION
SYSTEM PROPERLY ADAPTED TO THE PRESENT AND FUTURE NEEDS OF THE FOREIGN
AND DOMESTIC COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND
OF THE NATIONAL DEFENSE: 

"(B)  THE REGULATION OF AIR TRANSPORTATION IN SUCH MANNER AS TO
RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF, ASSURE THE HIGHEST
DEGREE OF SAFETY IN, AND FOSTER SOUND ECONOMIC CONDITIONS IN, SUCH
TRANSPORTATION, AND TO IMPROVE THE RELATIONS BETWEEN, AND COORDINATE
TRANSPORTATION BY, AIR CARRIERS: 

"(C)  THE PROMOTION OF ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE BY
AIR CARRIERS AT REASONABLE CHARGES, WITHOUT UNJUST DISCRIMINATIONS,
UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR DESTRUCTIVE COMPETITIVE
PRACTICES: 

"(D)  COMPETITION TO THE EXTENT NECESSARY TO ASSURE THE SOUND
DEVELOPMENT OF AN AIR-TRANSPORTATION SYSTEM PROPERLY ADAPTED TO THE
NEEDS OF THE FOREIGN AND DOMESTIC COMMERCE OF THE UNITED STATES, OF THE
POSTAL SERVICE, AND OF THE NATIONAL DEFENSE: 

"(E)  THE REGULATION OF AIR COMMERCE IN SUCH MANNER AS TO BEST
PROMOTE ITS DEVELOPMENT AND SAFETY; AND: 

"(F)  THE ENCOURAGEMENT AND DEVELOPMENT OF CIVIL AERONAUTICS." 
..END :








UNITED STATES V. CITY OF NEW BRITAIN 347 U.S. 81 


NO. 92.  ARGUED DECEMBER 1, 1953 - DECIDED FEBRUARY 1, 1954 - 139 CONN.
363, 94 A.2D 10, JUDGMENT VACATED AND CAUSE REMANDED. 


FORECLOSURE SALES UNDER TWO MORTGAGES ON REAL ESTATE OF A DELINQUENT
TAXPAYER IN CONNECTICUT PRODUCED LESS THAN ENOUGH TO SATISFY ALL
CLAIMS, WHICH INCLUDED A FEDERAL LIEN CREATED BY SEC. 3670 OF THE
INTERNAL REVENUE CODE FOR UNPAID WITHHOLDING AND UNEMPLOYMENT TAXES AND
INSURANCE CONTRIBUTIONS AND A CITY'S LIENS FOR DELINQUENT REAL-ESTATE
TAXES AND WATER RENT.  CONNECTICUT LAWS PROVIDE THAT REAL-ESTATE TAX
LIENS "SHALL TAKE PRECEDENCE OF ALL TRANSFERS AND INCUMBRANCES" IN ANY
MANNER AFFECTING THE PROPERTY SUBJECT TO THE LIEN AND THAT WATER-RENT
LIENS TAKE "PRECEDENCE OVER ALL OTHER LIENS OR INCUMBRANCES EXCEPT
TAXES" ON THE PROPERTY SUBJECT TO THE LIENS.  THE RECORD DID NOT
ESTABLISH THAT THE TAXPAYER WAS INSOLVENT.  HELD:  SINCE SEC. 3670 OF
THE INTERNAL REVENUE CODE DOES NOT IN TERMS CONFER PRIORITY UPON THE
LIEN CREATED THEREBY AND NO OTHER FEDERAL STATUTE DOES SO IN THE
CIRCUMSTANCES OF THIS CASE, THE PRIORITY OF EACH STATUTORY LIEN HERE
INVOLVED MUST DEPEND ON THE TIME IT ATTACHED TO THE PROPERTY IN
QUESTION AND BECAME CHOATE.  PP. 82-88. 

(A)  THE CITY GAINS NO PRIORITY BY THE FACT THAT ITS LIENS ARE
SPECIFIC WHILE THE FEDERAL LIENS ARE GENERAL.  P. 84. 

(B)  UNITED STATES V. SECURITY TRUST & SAVINGS BANK, 340 U.S. 47, AND
UNITED STATES V. GILBERT ASSOCIATES, 345 U.S. 361, DISTINGUISHED.  PP.
86-87. 

(C)  THAT SEC. 3672 OF THE INTERNAL REVENUE CODE MAKES THE FEDERAL
LIEN INVALID AS TO THE PRIOR RECORDED MORTGAGES AND THE JUDGMENT IN
THIS CASE, AND THAT THE MORTGAGEE COULD HAVE PAID THE DELINQUENT REAL
ESTATE TAXES AND WATER RENT WITH THE AMOUNT SO PAID BECOMING PART OF
THE MORTGAGE DEBT COVERED BY THE MORTGAGE LIEN, DOES NOT REQUIRE A
DIFFERENT RESULT.  PP. 87-88. 

UNITED STATES V. CITY OF NEW BRITIAN ET AL. 

CERTIORARI TO THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

A CONNECTICUT STATE COURT DIRECTED THAT, IN THE DISTRIBUTION OF THE
PROCEEDS OF CERTAIN MORTGAGE FORECLOSURE SALES OF REAL ESTATE, CERTAIN
MUNICIPAL TAX AND WATER-RENT LIENS SHOULD TAKE PRIORITY OVER CERTAIN
FEDERAL TAX LIENS.  THE SUPREME COURT OF ERRORS AFFIRMED.  139 CONN.
363, 94 A.2D 10.  THIS COURT GRANTED CERTIORARI.  346 U.S. 809. 
JUDGMENT VACATED AND CAUSE REMANDED, P. 88. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS WRIT INVOLVES THE RELATIVE PRIORITY OF
STATUTORY FEDERAL AND MUNICIPAL LIENS TO THE PROCEEDS OF A MORTGAGE
FORECLOSURE SALE OF THE PROPERTY TO WHICH THE LIENS ATTACHED. 

TWO MORTGAGES ON THE REAL PROPERTY OF A CORPORATION LOCATED IN THE
CITY OF NEW BRITAIN, CONNECTICUT, WERE FORECLOSED BY JUDGMENT SALE IN
THE SUPERIOR COURT OF HARTFORD COUNTY, AND A GROSS SUM OF $28,071.24
WAS REALIZED.  AGAINST THIS FUND, THERE WERE CLAIMS OF SOME $31,000,
INCLUDING EXPENSES OF THE SALE, THE TWO MORTGAGES, A JUDGMENT OF
RECORD, AND VARIOUS STATUTORY LIENS ASSERTED BY THE CITY AND BY THE
UNITED STATES.  THE FEDERAL LIENS, SECURING UNPAID WITHHOLDING AND
UNEMPLOYMENT TAXES AND INSURANCE CONTRIBUTIONS TOTALING $8,475.13, WERE
CREATED BY SEC. 3670 OF THE INTERNAL REVENUE CODE.  (FN1)  THEY AROSE
AT THE TIMES THE ASSESSMENT LISTS WERE RECEIVED IN THE OFFICE OF THE
COLLECTOR OF INTERNAL REVENUE FOR CONNECTICUT (FN2) ON VARIOUS DATES
BETWEEN APRIL 26, 1948, AND SEPTEMBER 21, 1950.  THE CITY'S LIENS,
WHICH ATTACHED TO THE SPECIFIC REAL ESTATE SOLD IN THE TOTAL SUM OF
$3,587.71, ARE FOR DELINQUENT REAL-ESTATE TAXES AND WATER RENT.  THE
REAL-ESTATE TAXES BECAME DUE ON VARIOUS DATES IN 1947 THROUGH 1951, THE
LIENS ATTACHING IN EACH CASE AS OF OCTOBER 1 OR OTHER ASSESSMENT DATE
OF THE PRIOR YEAR; (FN3) THE WATER-RENT LIENS AROSE UPON FAILURE TO PAY
(FN4) AND DATE FROM DECEMBER 1, 1947, TO JUNE 1, 1951. 

A CONNECTICUT STATUTE PROVIDES THAT REAL-ESTATE TAX LIENS "SHALL TAKE
PRECEDENCE OF ALL TRANSFERS AND INCUMBRANCES" IN ANY MANNER AFFECTING
THE PROPERTY SUBJECT TO THE LIEN.  (FN5)  ANOTHER STATE LAW GIVES THE
WATER-RENT LIENS "PRECEDENCE OVER ALL OTHER LIENS OR INCUMBRANCES
EXCEPT TAXES" ON THE PROPERTY SUBJECT TO THE LIENS.  (FN6) THE FUNDS
AVAILABLE FOR DISTRIBUTION BEING INSUFFICIENT TO PAY ALL CLAIMANTS IN
FULL, THE SUPERIOR COURT DIRECTED THAT THE EXPENSES, THE CITY'S LIENS,
THE MORTGAGES, THE JUDGMENT LIEN, AND THE UNITED STATES' LIENS BE PAID
IN THAT ORDER.  THE UNITED STATES APPEALED FROM THE JUDGMENT INSOFAR AS
THE STATUTORY LIENS OF THE CITY WERE GIVEN PRIORITY OVER THOSE OF THE
UNITED STATES.  THE SUPREME COURT OF ERRORS OF CONNECTICUT AFFIRMED,
139 CONN. 363, 94 A.2D 10, AND WE GRANTED CERTIORARI, 346 U.S. 809. 

WE ARE HERE DEALING WITH SEVERAL STATUTORY LIENS, SOME OWNED BY THE
CITY AND SOME BY THE FEDERAL GOVERNMENT, ON REAL ESTATE.  THE SUPREME
COURT OF ERRORS STATED THAT THE CITY'S LIENS WERE SPECIFIC AND
PERFECTED.  SUCH CHARACTERIZATION OF A LIEN BY THE STATE IS NOT, OF
COURSE, CONCLUSIVE AGAINST THE FEDERAL GOVERNMENT.  UNITED STATES V.
SECURITY TRUST & SAVINGS BANK, 340 U.S. 47, 49; ILLINOIS V. CAMPBELL,
329 U.S. 362, 371.  HOWEVER, WE ACCEPT THE HOLDING AS TO THE
SPECIFICITY OF THE CITY'S LIENS SINCE THEY ATTACHED TO SPECIFIC PIECES
OF REAL PROPERTY FOR THE TAXES ASSESSED AND WATER RENT DUE.  THE LIENS
MAY ALSO BE PERFECTED IN THE SENSE THAT THERE IS NOTHING MORE TO BE
DONE TO HAVE A CHOATE LIEN - WHEN THE IDENTITY OF THE LIENOR, THE
PROPERTY SUBJECT TO THE LIEN, AND THE AMOUNT OF THE LIEN ARE
ESTABLISHED.  THE FEDERAL TAX LIENS ARE GENERAL AND, IN THE SENSE ABOVE
INDICATED, PERFECTED.  BUT THE FACT THAT ONE GROUP OF LIENS IS SPECIFIC
AND THE OTHER GENERAL IN AND OF ITSELF IS OF NO SIGNIFICANCE IN THESE
CASES INVOLVING STATUTORY LIENS ON REAL ESTATE ONLY.  UNITED STATES V.
CITY OF GREENVILLE, 118 F.2D 963, 964.  A MORTGAGE IS A SPECIFIC LIEN,
YET "A STATUTORY LIEN IS AS BINDING AS A MORTGAGE, AND HAS THE SAME
CAPACITY TO HOLD THE LAND SO LONG AS THE STATUTE PRESERVES IT IN
FORCE."  RANKIN V. SCOTT, 12 WHEAT.  177, 179. 

THUS, THE GENERAL STATUTORY LIENS OF THE UNITED STATES ARE AS BINDING
AS THE SPECIFIC STATUTORY LIENS OF THE CITY.  THE CITY GAINS NO
PRIORITY BY THE FACT THAT ITS LIENS ARE SPECIFIC WHILE THE UNITED
STATES' LIENS ARE GENERAL.  OBVIOUSLY, THE STATE CANNOT ON BEHALF OF
THE CITY IMPAIR THE STANDING OF THE FEDERAL LIENS, WITHOUT THE CONSENT
OF CONGRESS.  MICHIGAN V. UNITED STATES, 317 U.S. 338, 340; UNITED
STATES V. OKLAHOMA, 261 U.S. 253, 260; UNITED STATES V. SNYDER, 149
U.S. 210, 214.  ON THE OTHER HAND, THE FEDERAL STATUTES DO NOT ATTEMPT
TO GIVE PRIORITY IN ALL CASES TO LIENS CREATED UNDER THE PARAMOUNT
AUTHORITY OF THE UNITED STATES.  THE STATUTE CREATING THE FEDERAL LIENS
HERE INVOLVED, I.R.C., SEC.  3670, DOES NOT IN TERMS CONFER PRIORITY
UPON THEM. 

WHEN THE DEBTOR IS INSOLVENT, CONGRESS HAS EXPRESSLY GIVEN PRIORITY
TO THE PAYMENT OF INDEBTEDNESS OWING THE UNITED STATES, WHETHER SECURED
BY LIENS OR OTHERWISE, BY SEC. 3466 OF THE REVISED STATUTES, 31 U.S.C.
(1946 ED.)  SEC.  191.  IN THAT CIRCUMSTANCE, WHERE ALL THE PROPERTY OF
THE DEBTOR IS INVOLVED, CONGRESS HAS PROTECTED THE FEDERAL REVENUES BY
IMPOSING AN ABSOLUTE PRIORITY.  (FN7) WHERE THE DEBTOR IS NOT
INSOLVENT, CONGRESS HAS FAILED TO EXPRESSLY PROVIDE FOR FEDERAL
PRIORITY, WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE, (FN8) ALTHOUGH THE
UNITED STATES IS FREE TO PURSUE THE WHOLE OF THE DEBTOR'S PROPERTY
WHEREVER SITUATED.  THE STATE, HAVING A LIEN ONLY UPON PROPERTY WITHIN
ITS BOUNDARIES, MAY NOT REACH BEYOND THE STATE LINE TO FASTEN ITS LIEN
UPON THE OTHER PROPERTY.  THE RECORD DOES NOT ESTABLISH THAT THE
TAXPAYER IN THIS CASE WAS INSOLVENT. 

IT DOES NOT FOLLOW, HOWEVER, THAT THE CITY'S LIENS MUST RECEIVE
PRIORITY AS A WHOLE.  WE BELIEVE THAT PRIORITY OF THESE STATUTORY LIENS
IS DETERMINED BY ANOTHER PRINCIPLE OF LAW, NAMELY, "THE FIRST IN TIME
IS THE FIRST IN RIGHT."  AS STATED BY CHIEF JUSTICE MARSHALL IN RANKIN
V. SCOTT, SUPRA: 

"THE PRINCIPLE IS BELIEVED TO BE UNIVERSAL, THAT A PRIOR LIEN GIVES A
PRIOR CLAIM, WHICH IS ENTITLED TO PRIOR SATISFACTION, OUT OF THE
SUBJECT IT BINDS, UNLESS THE LIEN BE INTRINSICALLY DEFECTIVE, OR BE
DISPLACED BY SOME ACT OF THE PARTY HOLDING IT, WHICH SHALL POSTPONE HIM
IN A COURT OF LAW OR EQUITY TO A SUBSEQUENT CLAIMANT."  12 WHEAT., AT
179. 

THIS PRINCIPLE IS WIDELY ACCEPTED AND APPLIED, IN THE ABSENCE OF
LEGISLATION TO THE CONTRARY.  33 AM. JUR., LIENS, SEC. 33; 53 C.J.S.,
LIENS, SEC. 10B.  WE THINK THAT CONGRESS HAD THIS CARDINAL RULE IN MIND
WHEN IT ENACTED SEC. 3670, A SCHEDULE OF PRIORITY NOT BEING SET FORTH
THEREIN.  THUS, THE PRIORITY OF EACH STATUTORY LIEN CONTESTED HERE MUST
DEPEND ON THE TIME IT ATTACHED TO THE PROPERTY IN QUESTION AND BECAME
CHOATE. 

THE UNITED STATES IN CLAIMING PRIORITY FOR ALL ITS LIENS RELIES
HEAVILY ON TWO RECENT CASES FROM THIS COURT, UNITED STATES V. SECURITY
TRUST & SAVINGS BANK, SUPRA, AND UNITED STATES V. GILBERT ASSOCIATES,
345 U.S. 361.  WE DO NOT THINK THEY ARE INCONSISTENT WITH OUR DECISION
IN THIS CASE. 

THE SECURITY TRUST CASE INVOLVED AN INCHOATE ATTACHMENT LIEN THAT HAD
NOT RIPENED INTO A JUDGMENT AT THE TIME THE FEDERAL TAX LIENS
ATTACHED.  WE NOTED THAT "NUMEROUS CONTINGENCIES MIGHT ARISE THAT WOULD
PREVENT THE ATTACHMENT LIEN FROM EVER BECOMING PERFECTED BY A JUDGMENT
AWARDED AND RECORDED."  340 U.S., AT 50.  THUS, THE ATTACHMENT LIEN WAS
"MERELY A LIS PENDENS NOTICE THAT A RIGHT TO PERFECT A LIEN EXISTS." 
IBID.  SUCH INCHOATE LIENS MAY BECOME CERTAIN AS TO AMOUNT, IDENTITY OF
THE LIENOR, OR THE PROPERTY SUBJECT THERETO ONLY AT SOME TIME
SUBSEQUENT TO THE DATE THE FEDERAL LIENS ATTACH AND CANNOT THEN BE
PERMITTED TO DISPLACE SUCH FEDERAL LIENS.  OTHERWISE, A STATE COULD
AFFECT THE STANDING OF FEDERAL LIENS, CONTRARY TO THE ESTABLISHED
DOCTRINE, SIMPLY BY CAUSING AN INCHOATE LIEN TO ATTACH AT SOME
ARBITRARY TIME EVEN BEFORE THE AMOUNT OF THE TAX, ASSESSMENT, ETC., IS
DETERMINED.   (FN9)  ACCORDINGLY, WE CONCLUDED IN SECURITY TRUST "THAT
THE TAX LIENS OF THE UNITED STATES ARE SUPERIOR TO THE INCHOATE
ATTACHMENT LIEN  ...  ."  ID., AT 51.  IN THE INSTANT CASE, CERTAIN OF
THE CITY'S TAX AND WATER-RENT LIENS APPARENTLY ATTACHED TO THE SPECIFIC
PROPERTY AND BECAME CHOATE PRIOR TO THE ATTACHMENT OF THE FEDERAL TAX
LIENS. 

THE STATE AND THE UNITED STATES WERE BOTH HOLDERS OF GENERAL
STATUTORY LIENS IN THE GILBERT ASSOCIATES CASE.  BUT THE QUESTION WE
HAVE HERE DID NOT ARISE THERE BECAUSE THAT WAS A CASE INVOLVING
PERSONAL PROPERTY AND INSOLVENCY OF THE TAXPAYER.  WE SAID IN THAT
CASE: 

"WHERE THE LIEN OF THE TOWN AND THAT OF THE FEDERAL GOVERNMENT ARE
BOTH GENERAL, AND THE TAXPAYER IS INSOLVENT, SEC. 3466 (REVISED
STATUTES) CLEARLY AWARDS PRIORITY TO THE UNITED STATES."  345 U.S., AT
366. 

HERE THE CONTEST IS BETWEEN TWO GROUPS OF STATUTORY LIENS, ONE
SPECIFIC AND ONE GENERAL, ATTACHED TO THE SAME REAL ESTATE, WITH NO
QUESTION OF INSOLVENCY INVOLVED; THEREFORE, "THE FIRST IN TIME IS THE
FIRST IN RIGHT." 

THE STATE FINDS THE RULE OF "FIRST IN TIME, FIRST IN RIGHT" NOT
APPLICABLE BECAUSE OF SEC. 3672 OF THE INTERNAL REVENUE CODE, (FN10)
WHICH MAKES THE LIEN OF THE UNITED STATES INVALID AS TO THE PRIOR
RECORDED MORTGAGES AND THE JUDGMENT IN THIS CASE.  IT POINTS OUT THAT
THE MORTGAGEE COULD HAVE PAID THE DELINQUENT REAL-ESTATE TAXES AND
WATER RENT, WITH THE AMOUNT SO PAID BECOMING PART OF THE MORTGAGE DEBT
COVERED BY THE MORTGAGE LIEN, (FN11) AND SUGGESTS THAT THE FEDERAL TAX
LIEN WOULD THEREFORE BE INVALID AS TO SUCH AMOUNT BY VIRTUE OF SEC.
3672.  (FN12)  FROM THIS AND A BELIEF THAT CONGRESS DID NOT INTEND, BY
GIVING MORTGAGES AND JUDGMENTS PRIORITY OVER FEDERAL TAX LIENS, TO
SUPERSEDE STATE LAWS MAKING CERTAIN INTERESTS SUPERIOR TO MORTGAGES AND
JUDGMENTS, THE SUPREME COURT OF ERRORS CONCLUDED THAT BY ENACTING SEC.
3672 CONGRESS "EXPRESSED THE INTENTION THAT FEDERAL LIENS SHOULD BE
SUBORDINATED TO SUCH MORTGAGES AND JUDGMENT LIENS AS ARE DESCRIBED
THEREIN AND, CONSEQUENTLY, SUBORDINATED TO SUCH OTHER INCUMBRANCES AS
HAVE PRIORITY OVER THOSE MORTGAGES AND JUDGMENT LIENS."  (FN13) 

WE DO NOT AGREE.  THE UNITED STATES IS NOT INTERESTED IN WHETHER THE
STATE RECEIVES ITS TAXES AND WATER RENTS PRIOR TO MORTGAGEES AND
JUDGMENT CREDITORS.  THAT IS A MATTER OF STATE LAW.  BUT AS TO ANY
FUNDS IN EXCESS OF THE AMOUNT NECESSARY TO PAY THE MORTGAGE AND
JUDGMENT CREDITORS, CONGRESS INTENDED TO ASSERT THE FEDERAL LIEN. 
THERE IS NOTHING IN THE LANGUAGE OF SEC. 3672 TO SHOW THAT CONGRESS
INTENDED ANTECEDENT FEDERAL TAX LIENS TO RANK BEHIND ANY BUT THE
SPECIFIC CATEGORIES OF INTERESTS SET OUT THEREIN, AND THE LEGISLATIVE
HISTORY LENDS SUPPORT TO THIS IMPRESSION.  (FN14) 

UNDER THE CIRCUMSTANCES, WE VACATE THE JUDGMENT OF THE SUPREME COURT
OF ERRORS OF CONNECTICUT AND REMAND THE CASE TO THAT COURT TO HAVE
DETERMINED THE ORDER OF PRIORITY OF THE VARIOUS LIENS ASSERTED, IN
ACCORDANCE WITH THIS OPINION.  JUDGMENT VACATED. 

FN1  "SEC.  3670.  PROPERTY SUBJECT TO LIEN. 

"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT (INCLUDING ANY INTEREST, PENALTY,
ADDITIONAL AMOUNT, OR ADDITION TO SUCH TAX, TOGETHER WITH ANY COSTS
THAT MAY ACCRUE IN ADDITION THERETO) SHALL BE A LIEN IN FAVOR OF THE
UNITED STATES UPON ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR
PERSONAL, BELONGING TO SUCH PERSON."  I.R.C. SEC. 3670, 26 U.S.C. (1946
ED.)  SEC.  3670. 

FN2  I.R.C., SEC. 3671, 26 U.S.C. (1946 ED.)  SEC.  3671. 

FN3  CONN. GEN. STAT., 1949, C. 88, SEC. 1853. 

FN4  CONN. GEN. STAT., 1949, C. 34, SEC. 758. 

FN5  CONN. GEN. STAT., 1949, C. 88, SEC. 1853. 

FN6  CONN. GEN. STAT., 1949, C. 34, SEC. 758.  AS CONSTRUED BY THE
SUPREME COURT OF ERRORS OF CONNECTICUT IN THIS CASE, THE TERM "TAXES"
IN SEC. 758 INCLUDES "ONLY THOSE TAXES WHICH MAY BE ASSESSED IN FAVOR
OF THE STATE OR SOME SUBDIVISION THEREOF AND WHICH, UNDER THE LAW, ARE
SECURED BY SPECIFIC LIENS UPON REAL PROPERTY."  139 CONN. 363, 367, 94
A.2D 10, 12. 

FN7  UNITED STATES V. GILBERT ASSOCIATES, 345 U.S. 361; UNITED STATES
V. WADDILL, HOLLAND & FLINN, 323 U.S. 353. 

FN8  E.G., I.R.C., SEC. 2800(E), 26 U.S.C. (1946 ED.)  SEC.  2800(E)
(DISTILLED SPIRITS TAX LIEN). 

FN9  SEE SARNER, CORRELATION OF PRIORITY AND LIEN RIGHTS IN THE
COLLECTION OF FEDERAL TAXES, 95 U. OF PA. L. REV. 739, 755-761. 

FN10  "SEC.  3672.  VALIDITY AGAINST MORTGAGEES, PLEDGEES,
PURCHASERS, AND JUDGMENT CREDITORS. 

"(A)  INVALIDITY OF LIEN WITHOUT NOTICE.  - SUCH LIEN SHALL NOT BE
VALID AS AGAINST ANY MORTGAGEE, PLEDGEE, PURCHASER, OR JUDGMENT
CREDITOR UNTIL NOTICE THEREOF HAS BEEN FILED BY THE COLLECTOR  ... ."
I.R.C., SEC. 3672, AS AMENDED, 53 STAT. 882, 26 U.S.C. (1946 ED.) 
SEC.  3672. 

FN11  CONN. GEN. STAT., 1949, C. 361, SEC. 7192. 

FN12  WE NEED NOT NOW PASS UPON THE MERITS OF THIS SUGGESTION SINCE
THE SITUATION IS NOT PRESENTED BY THE RECORD IN THIS CASE.    FN13  139
CONN. 363, 373, 94 A.2D 10, 15. 

FN14  SEE UNITED STATES V. GILBERT ASSOCIATES, 345 U.S. 361, 364;
UNITED STATES V. SECURITY TRUST & SAVINGS BANK, 340 U.S. 47, 51
(CONCURRING OPINION). 
..END :













MADRUGA V. SUPERIOR COURT OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN
DIEGO 346 U.S. 556 


NO. 35.  ARGUED OCTOBER 19-20, 1953 - DECIDED JANUARY 18, 1954 - 40 CAL.
2D 65, 251 P.2D 1, AFFIRMED. 


EIGHT INDIVIDUALS WHO OWNED UNDIVIDED INTERESTS AGGREGATING 85% IN A
SHIP WHICH WAS CERTIFICATED UNDER THE MARITIME LAWS OF THE UNITED
STATES, INSTITUTED A PROCEEDING IN A CALIFORNIA STATE COURT AT SAN
DIEGO, THE HOME PORT OF THE VESSEL, FOR SALE OF THE VESSEL AND
PARTITION OF THE PROCEEDS PURSUANT TO A CALIFORNIA STATUTE.  THE
DEFENDANT WAS AN INDIVIDUAL WHO OWNED A 15% INTEREST IN THE VESSEL, AND
PERSONAL SERVICE WAS HAD UPON HIM BY SUMMONS.  THE STATE COURT'S
DECISION THAT IT HAD JURISDICTION WAS UPHELD BY THE STATE SUPREME COURT
WHICH DECLINED TO ISSUE A WRIT OF PROHIBITION.  HELD: 

1.  UNDER THE FEDERAL ADMIRALTY POWER, UNITED STATES DISTRICT COURTS
HAVE JURISDICTION TO ORDER VESSELS SOLD FOR PARTITION.  PP. 557-560. 

2.  THE JURISDICTION OF THE FEDERAL COURTS WAS NOT EXCLUSIVE; AND THE
CALIFORNIA COURT WAS "COMPETENT" TO GIVE THIS PARTITION REMEDY AND HAD
JURISDICTION OF THE CAUSE OF ACTION.  PP. 560-561. 

(A)  THE FEDERAL ADMIRALTY JURISDICTION IS "EXCLUSIVE" ONLY AS TO
THOSE MARITIME CAUSES OF ACTION BEGUN AND CARRIED ON AS PROCEEDINGS IN
REM; AND THE PROCEEDINGS IN THIS PARTITION CASE WERE NOT IN REM IN THE
ADMIRALTY SENSE.  PP. 560-561. 

(B)  THE STATE COURT IN THIS PROCEEDING ACTS ONLY UPON THE INTERESTS
OF THE PARTIES OVER WHOM IT HAS JURISDICTION IN PERSONAM, AND IT DOES
NOT AFFECT THE INTERESTS OF OTHERS IN THE WORLD AT LARGE, AS IT WOULD
IF THIS WERE A PROCEEDING TO ENFORCE A LIEN.  P. 561. 

3.  THE CALIFORNIA COURT'S TAKING OF JURISDICTION OF THIS PARTITION
SUIT AT THE INSTANCE OF THE MAJORITY SHIPOWNERS DOES NOT RUN COUNTER TO
ANY ESTABLISHED RULE OF ADMIRALTY; NOR DO THE CIRCUMSTANCES JUSTIFY THE
ESTABLISHMENT OF A NATIONAL JUDICIAL RULE CONTROLLING PARTITION OF
SHIPS.  PP. 561-564. 

4.  THE STATE SUPREME COURT'S REFUSAL TO ISSUE A WRIT OF PROHIBITION
WAS A FINAL JUDGMENT REVIEWABLE HERE UNDER 28 U.S.C. SEC. 1257.  P.
557, N. 1. 

MADRUGA V. SUPERIOR COURT OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN
DIEGO. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE FOR SALE OF A VESSEL AND PARTITION OF THE PROCEEDS PURSUANT
TO A CALIFORNIA STATUTE BEGAN IN THE SUPERIOR COURT OF SAN DIEGO, THE
HOME PORT OF THE VESSEL.  THE PLAINTIFFS WERE EIGHT INDIVIDUALS
INCLUDING EDWARD, ANTHONY, AND JOSEPH MADRUGA.  THE DEFENDANT WAS
MANUEL MADRUGA ON WHOM PERSONAL SERVICE WAS HAD BY SUMMONS.  THE
DEFENDANT OWNED A 15% INTEREST AND THE EIGHT PLAINTIFFS OWNED UNDIVIDED
INTERESTS AGGREGATING 85% IN A SHIP CERTIFICATED UNDER THE MARITIME
LAWS OF THE UNITED STATES.  THE DEFENDANT 15% OWNER CHALLENGED THE
JURISDICTION OF THE SAN DIEGO COURT ON THE GROUND THAT ONLY THE UNITED
STATES DISTRICT COURT SITTING IN ADMIRALTY COULD TAKE JURISDICTION TO
CONSIDER SUCH A CASE.  THE SAN DIEGO COURT DECIDED IT HAD JURISDICTION
AND WAS UPHELD BY THE STATE SUPREME COURT WHICH DECLINED TO ISSUE A
WRIT OF PROHIBITION.  (FN1)  40 CAL. 2D 65, 251 P.2D 1.  CERTIORARI WAS
GRANTED TO CONSIDER THE STATE COURT'S JURISDICTION.  345 U.S. 963. 

FIRST.  ARTICLE III, SEC. 2, OF THE CONSTITUTION EXTENDS THE JUDICIAL
POWER TO "ALL CASES OF ADMIRALTY AND MARITIME JURISDICTION  ...  ." 
AND SINCE THE FIRST JUDICIARY ACT, UNITED STATES DISTRICT COURTS HAVE
HAD JURISDICTION OF ALL CIVIL CASES OF "ADMIRALTY OR MARITIME
JURISDICTION  ...  ." 28 U.S.C. SEC. 1333.  WHETHER THIS GRANTS UNITED
STATES DISTRICT COURTS POWER TO SELL SHIPS FOR PARTITION OF THE
PROCEEDS HAS NEVER BEEN SQUARELY DECIDED BY THIS COURT.  THE PARTITION
POWER OF ADMIRALTY WAS DISCUSSED BUT LEFT IN DOUBT BY MR. JUSTICE STORY
IN THE STEAMBOAT ORLEANS V. PHOEBUS, 11 PET. 175, 183 (1837).  (FN2)
SOME CASES IN LOWER FEDERAL COURTS APPEAR TO SUPPORT THE JURISDICTION
OF DISTRICT ADMIRALTY COURTS TO ORDER SALES FOR PARTITION, AT LEAST
WHERE THERE IS A DISPUTE AS TO USE OF THE SHIP BETWEEN PART OWNERS
HAVING EQUAL INTERESTS AND SHARES.  (FN3)  OTHER CASES INDICATE THAT
ADMIRALTY SHOULD NOT EXERCISE JURISDICTION TO ORDER PARTITION OF SHIPS
AT THE INSTANCE EITHER OF MINORITY OR MAJORITY INTERESTS.  (FN4)  THE
REASONING IN ALL THE CASES APPEARS TO HAVE BEEN THAT MAJORITY CONTROL
OF THE SHIP'S OPERATIONS WAS IN THE PUBLIC INTEREST AND ADMIRALTY
SHOULD INTERFERE ONLY TO PROTECT MINORITY INTERESTS BY SUCH SPECIAL
INDEMNITIES OR BONDS AS THE COURT MIGHT REQUIRE OF THE CONTROLLING
MAJORITY.  OTHER CASES HAVE INDICATED THAT EITHER A MAJORITY OR A
MINORITY COULD OBTAIN PARTITION FROM ADMIRALTY ON A PROPER SHOWING. 
(FN5)  SOME STATE COURTS HAVE SOLD SHIPS FOR PARTITION, (FN6) AND EVEN
AT THE BEHEST OF MINORITY INTERESTS; (FN7) OTHERS HAVE REFUSED TO DO
SO.  (FN8)  HOWEVER THE DIVERSE HOLDINGS IN THE CASES MAY BE VIEWED,
(FN9) THERE CAN BE NO DOUBT TODAY THAT UNITED STATES DISTRICT COURTS
HAVE BROAD POWER OVER SHIPS THAT PLY NAVIGABLE WATERS AND ARE REQUIRED
TO BE REGISTERED OR ENROLLED UNDER A SERIES OF ACTS OF CONGRESS THAT
HAVE BEEN IN EFFECT SINCE THE FIRST ONE WAS PASSED SEPTEMBER 1, 1789. 
(FN10)  1 STAT. 55.  THIS COURT HAS SAID THAT ADMIRALTY'S BROAD POWER
CAN UNDER SOME CIRCUMSTANCES BE EXTENDED TO PROTECT THE RIGHTS AND
TITLE OF PERSONS DEALING IN SUCH SHIPS.  WHITE'S BANK V. SMITH, 7
WALL.  646, 656.  ON THE OTHER HAND, THE COURT HAS HELD THAT ADMIRALTY
CANNOT EXERCISE JURISDICTION OVER A VARIETY OF ACTIONS WHICH MAY CHANGE
OR OTHERWISE AFFECT POSSESSION OF OR TITLE TO VESSELS.  THE STEAMER
ECLIPSE, 135 U.S. 599, 608.  (FN11)  WE THINK, HOWEVER, THAT THE POWER
OF ADMIRALTY, AS CONGRESS AND THE COURTS HAVE DEVELOPED IT OVER THE
YEARS, IS BROAD ENOUGH FOR UNITED STATES DISTRICT COURTS TO ORDER
VESSELS SOLD FOR PARTITION.  THIS BRINGS US TO THE CONTENTION THAT THIS
FEDERAL ADMIRALTY POWER IS EXCLUSIVE. 

SECOND.  HAD CONGRESS SIMPLY GRANTED DISTRICT COURTS "ADMIRALTY OR
MARITIME JURISDICTION EXCLUSIVE OF THE STATES" CALIFORNIA MIGHT NOT
HAVE POWER TO ORDER PARTITION OF A SHIP.  BUT CONGRESS DID NOT STOP
THERE.  IT WENT ON IN THE FIRST JUDICIARY ACT TO SAY "SAVING TO
SUITORS, IN ALL CASES, THE RIGHT OF A COMMON LAW REMEDY, WHERE THE
COMMON LAW IS COMPETENT TO GIVE IT."  1 STAT. 73, 77.  (FN12)  VIEWED
SUPERFICIALLY THE CLAUSE GIVING UNITED STATES DISTRICT COURTS EXCLUSIVE
ADMIRALTY OR MARITIME JURISDICTION APPEARS INCONSISTENT WITH THE CLAUSE
WHICH PERMITS PERSONS TO SUE ON MARITIME CLAIMS IN COMMON LAW COURTS. 
BUT FORMER DECISIONS OF THIS COURT HAVE CLARIFIED THIS SEEMING
CONFLICT.  ADMIRALTY'S JURISDICTION IS "EXCLUSIVE" ONLY AS TO THOSE
MARITIME CAUSES OF ACTION BEGUN AND CARRIED ON AS PROCEEDINGS IN REM,
THAT IS, WHERE A VESSEL OR THING IS ITSELF TREATED AS THE OFFENDER AND
MADE THE DEFENDANT BY NAME OR DESCRIPTION IN ORDER TO ENFORCE A LIEN. 
SEE, E.G., THE MOSES TAYLOR, 4 WALL.  411, 427; THE RESOLUTE, 168 U.S.
437, 440-441.  IT IS THIS KIND OF IN REM PROCEEDING WHICH STATE COURTS
CANNOT ENTERTAIN.  BUT THE JURISDICTIONAL ACT DOES LEAVE STATE COURTS
"COMPETENT" TO ADJUDICATE MARITIME CAUSES OF ACTION IN PROCEEDINGS "IN
PERSONAM," THAT IS, WHERE THE DEFENDANT IS A PERSON, NOT A SHIP OR SOME
OTHER INSTRUMENT OF NAVIGATION.  ROUNDS V. CLOVERPORT FOUNDRY & MACHINE
CO., 237 U.S. 303, 306-309.  ASIDE FROM ITS INABILITY TO PROVIDE A
REMEDY IN REM FOR A MARITIME CAUSE OF ACTION, THIS COURT HAS SAID THAT
A STATE, "HAVING CONCURRENT JURISDICTION, IS FREE TO ADOPT SUCH
REMEDIES, AND TO ATTACH TO THEM SUCH INCIDENTS, AS IT SEES FIT" SO LONG
AS IT DOES NOT ATTEMPT TO MAKE CHANGES IN THE "SUBSTANTIVE MARITIME
LAW."  RED CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109, 124. 

THE PROCEEDINGS IN THIS CALIFORNIA PARTITION CASE WERE NOT IN REM IN
THE ADMIRALTY SENSE.  THE PLAINTIFFS' QUARREL WAS WITH THEIR CO-OWNER,
NOT WITH THE SHIP.  MANUEL MADRUGA, NOT THE SHIP, WAS MADE DEFENDANT. 
THUS THE STATE COURT IN THIS PROCEEDING ACTS ONLY UPON THE INTERESTS OF
THE PARTIES OVER WHOM IT HAS JURISDICTION IN PERSONAM, AND IT DOES NOT
AFFECT THE INTERESTS OF OTHERS IN THE WORLD AT LARGE, AS IT WOULD IF
THIS WERE A PROCEEDING IN REM TO ENFORCE A LIEN.  THE CALIFORNIA COURT
IS "COMPETENT" TO GIVE THIS PARTITION REMEDY AND IT THEREFORE HAS
JURISDICTION OF THE CAUSE OF ACTION. 

THIRD.  PETITIONER CONTENDS THAT FOR THE CALIFORNIA COURT TO
ENTERTAIN THIS PARTITION SUIT AT THE INSTANCE OF THE MAJORITY
SHIPOWNERS WOULD RUN COUNTER TO AN ADMIRALTY RULE WHICH IS SAID TO
PERMIT SALES FOR PARTITION ONLY AS BETWEEN EQUAL INTERESTS.  SUCH A
NATIONAL ADMIRALTY RULE WOULD BIND THE CALIFORNIA COURT HERE, EVEN
THOUGH IT HAS CONCURRENT JURISDICTION TO GRANT PARTITION.  SEE GARRETT
V. MOORE-MCCORMACK CO., 317 U.S. 239; BUTLER V. BOSTON S.S. CO., 130
U.S. 527, 557-558.  CONGRESS HAS PASSED DETAILED LAWS REGULATING THE
SHIPPING INDUSTRY WITH RESPECT TO OWNERSHIP, SALES, MORTGAGES AND
TRANSFERS OF VESSELS.  (FN13)  IT HAS EVEN PRESCRIBED SPECIAL RULES FOR
SHIP REGISTRATION AFTER THEIR JUDICIAL SALE.  (FN14)  BUT CONGRESS HAS
NEVER SEEN FIT TO BAR STATES FROM MAKING SUCH SALES, OR TO ADOPT A
NATIONAL PARTITION RULE.  (FN15)  NOR HAS ANY SUCH RULE BEEN
ESTABLISHED BY DECISIONS OF THIS COURT.  AND AS POINTED OUT ABOVE,
DECISIONS OF LOWER FEDERAL COURTS AND OF STATE COURTS SHOW VARYING
IDEAS AS TO WHAT KIND OF PARTITION RULE SHOULD BE ADOPTED IF ANY.  WE
DO NOT THINK THE CIRCUMSTANCES CALL ON US TO ADD TO CONGRESSIONAL
REGULATION BY ATTEMPTING ESTABLISHMENT OF A NATIONAL JUDICIAL RULE
CONTROLLING PARTITION OF SHIPS.  SEE KELLY V. WASHINGTON, 302 U.S. 1, 9
14.  CF. COOLEY V. BOARD OF WARDENS, 12 HOW.  299. 

THE SCARCITY OF REPORTED CASES INVOLVING SUCH PARTITION SINCE THE
CONSTITUTION WAS ADOPTED INDICATES THAT ESTABLISHMENT OF A NATIONAL
PARTITION RULE IS NOT OF MAJOR IMPORTANCE TO THE SHIPPING WORLD.  WE
CAN FORESEE AT THIS TIME NO POSSIBLE INJURY TO COMMERCE OR NAVIGATION
IF STATES CONTINUE TO BE FREE TO FOLLOW THEIR OWN CUSTOMARY PARTITION
PROCEDURES.  EASILY ACCESSIBLE LOCAL COURTS ARE WELL EQUIPPED TO HANDLE
THESE ESSENTIALLY LOCAL DISPUTES.  ORDERING THE SALE OF PROPERTY FOR
PARTITION IS PART OF THEIR EVERYDAY WORK.  LONG EXPERIENCE HAS ENABLED
STATES TO DEVELOP SIMPLE LEGISLATIVE AND JUDICIAL PARTITION PROCEDURES
WITH WHICH LOCAL JUDGES AND COUNSEL ARE FAMILIAR.  FEDERAL COURTS HAVE
RARELY BEEN CALLED ON TO TRY SUCH DISPUTES AND HAVE ESTABLISHED NO
SETTLED RULES FOR PARTITION.  IN SOME PARTS OF THE COUNTRY THE
INACCESSIBILITY OF FEDERAL COURTS AS COMPARED WITH STATE COURTS WOULD
CAUSE NEEDLESS EXPENSE AND INCONVENIENCE TO PARTIES.  WE HAVE NO REASON
TO BELIEVE FEDERAL PROCEDURE IF APPLIED TO PARTITION CASES WOULD BE
SIMPLER, SPEEDIER, LESS EXPENSIVE OR FAIRER THAN THE PROCEDURES OF
STATE COURTS.  NOR ARE WE CONVINCED THAT ANY THEORETICAL BENEFITS TO
SHIPPING WOULD JUSTIFY US IN RESTRICTING THE PARTITION JURISDICTION OF
STATE COURTS BY FASHIONING AN EXCLUSIVE NATIONAL RULE TO GOVERN
QUARRELING SHIPOWNERS.  CF.  HALCYON LINES V. HAENN SHIP CEILING CORP.,
342 U.S. 282, 285-287.  STATE LAWS MAKING PARTITION EASILY AVAILABLE,
LIKE STATE PILOTAGE LAWS, SEE COOLEY V. BOARD OF WARDENS, 12 HOW.  299,
MAY WELL HELP FILL THE NEEDS OF A VIGOROUS COMMERCE AND NAVIGATION. 
(FN16)  SINCE THE ABSENCE OF SUCH A NATIONAL RULE HAS PRODUCED FEW
DIFFICULTIES OVER THE YEARS, IT APPEARS TO US THAT IT WOULD BE BETTER
TO LET WELL ENOUGH ALONE.  AFFIRMED. 

FN1  THE STATE SUPREME COURT'S JUDGMENT FINALLY DISPOSING OF THE WRIT
OF PROHIBITION IS A FINAL JUDGMENT REVIEWABLE HERE UNDER 28 U.S.C. SEC.
1257. 

FN2  "THE JURISDICTION OF COURTS OF ADMIRALTY IN CASES OF PART
OWNERS, HAVING UNEQUAL INTERESTS AND SHARES, IS NOT, AND NEVER HAS BEEN
APPLIED TO DIRECT A SALE, UPON ANY DISPUTE BETWEEN THEM AS TO THE TRADE
AND NAVIGATION OF A SHIP ENGAGED IN MARITIME VOYAGES, PROPERLY SO
CALLED.  THE MAJORITY OF THE OWNERS HAVE A RIGHT TO EMPLOY THE SHIP IN
SUCH VOYAGES AS THEY MAY PLEASE; GIVING A STIPULATION TO THE DISSENTING
OWNERS FOR THE SAFE RETURN OF THE SHIP; IF THE LATTER, UPON A PROPER
LIBEL FILED IN THE ADMIRALTY, REQUIRE IT.  AND THE MINORITY OF THE
OWNERS MAY EMPLOY THE SHIP IN THE LIKE MANNER, IF THE MAJORITY DECLINE
TO EMPLOY HER AT ALL.  SO THE LAW IS LAID DOWN IN LORD TENTERDEN'S
EXCELLENT TREATISE ON SHIPPING.  ABBOTT ON SHIP.  PART 1, CHAP. 3, SEC.
4 TO SEC. 7.  IF, THEREFORE, THIS WERE A VESSEL ENGAGED IN MARITIME
NAVIGATION, THE LIBEL FOR A SALE COULD NOT BE MAINTAINED." 

SOME HAVE THOUGHT THAT MR. JUSTICE STORY HERE REJECTED THE IDEA OF
ADMIRALTY JURISDICTION TO SELL SHIPS FOR PARTITION.  BUT, HOWEVER THAT
MAY BE, HE MADE IT CLEAR IN HIS BOOK ON PARTNERSHIP THAT HE BELIEVED
ADMIRALTY COURTS DID HAVE SUCH JURISDICTION.  STORY, PARTNERSHIP (1ST
ED. 1841), SEC. 439, N. 1. 

FN3  E.G., THE SENECA, FED. CAS. NO. 12,670 (C.C.E.D. PA. 1829); THE
EMMA B., 140 F. 771 (D.C.D.N.J. 1906).  COMPARE DISCUSSION IN DAVIS V.
THE SENECA, FED. CAS. NO. 3,650 (D.C.E.D.  PA. 1828) REV'D, THE SENECA,
SUPRA. 

FN4  E.G., LEWIS V. KINNEY, FED. CAS. NO. 8,325 (C.C.E.D. MO. 1879);
THE RED WING, 10 F.2D 389 (D.C.S.D. CAL. 1925); SEE COYNE V. CAPLES, 8
F. 638, 639-640 (D.C.D. ORE.  1881); FISCHER V. CAREY, 173 CAL. 185,
189-192, 159 P. 577, 578-580 (1916). 

FN5  TUNNO V. THE BETSINA, FED. CAS. NO. 14,236 (D.C.D.S.C. 1857). 

FN6  E.G., ANDREWS V. BETTS, 8 HUN (N.Y.)  332 (1876); FRANCIS V.
LAVINE, 26 LA. ANN.  311 (1874). 

FN7  SWAIN V. KNAPP, 32 MINN. 429, 21 N.W. 414 (1884); REYNOLDS V.
NIELSON, 116 WIS.  483, 93 N.W. 455 (1903). 

FN8  E.G., FISCHER V. CAREY, 173 CAL. 185, 159 P. 577 (1916); CLINE
V. PRICE, 39 WASH.  2D 816, 239 P.2D 322 (1951). 

FN9  CITATIONS TO CASES WITH THESE VARIED HOLDINGS ARE COLLECTED IN
NOTE 302, 28 U.S.C.A. SEC. 1333, 90 AM. ST. REP. 378-380 AND IN L.R.A.
1917A, 1114-1116. 

FN10  IN ENGLAND KING'S BENCH PROHIBITED ADMIRALTY'S EXERCISE OF
PARTITION JURISDICTION IN OUSTON V. HEBDEN, 1 WILS.  K.B. 101, 95 ENG.
REP. 515 (1745).  HOWEVER, JURISDICTION, WHICH EXTENDED EVEN TO
MINORITY SHARE OWNERS, WAS LATER GIVEN TO ADMIRALTY BY STATUTE.  THE
ADMIRALTY COURT ACT, 1861, 24 VICT., C. 10, SEC. 8. 

FN11  FOR APPLICATIONS OF THIS DECISION, SEE, E.G., THE GUAYAQUIL, 29
F. SUPP. 578 (D.C.E.D.N.Y. 1939); HIRSCH V. THE SAN PABLO, 81 F. SUPP.
292 (D.C.S.C. FLA. 1948). 

FN12  THE 1948 AND 1949 REVISIONS OF 28 U.S.C. SEC. 1333 AMENDED THE
ABOVE CLAUSE.  IT NOW READS: "  ...  SAVING TO SUITORS IN ALL CASES ALL
OTHER REMEDIES TO WHICH THEY ARE OTHERWISE ENTITLED."  WE TAKE IT THAT
THIS CHANGE IN NO WAY NARROWED THE JURISDICTION OF THE STATE COURTS
UNDER THE ORIGINAL 1789 ACT. 

FN13  TITLE 46 U.S.C.  IN PARTICULAR SEE:  SEC. 11, LIMITING UNITED
STATES SHIP REGISTRATION TO SHIPS OWNED BY UNITED STATES CITIZENS OR
UNITED STATES CORPORATIONS HAVING ONLY CITIZENS AS OFFICERS (FROM ACT
OF DEC. 31, 1792, C. 1, SEC. 2, 1 STAT. 288); SEC. 25, PRESCRIBING A
FORM FOR REGISTRATION WHICH REQUIRES DETAILED INFORMATION AS TO THE
SHIP'S DESCRIPTION, ITS BUILDERS, AND THE IDENTITY AND PROPORTION OF
OWNERSHIP OF ALL ITS OWNERS (FROM ACT OF DEC. 31, 1792, C. 1, SEC. 9, 1
STAT. 291); SEC. 39, REQUIRING NEW REGISTRATION UPON ANY SALE OR
ALTERATION OF A SHIP (FROM ACT OF DEC. 31, 1792, C. 1, SEC. 14, 1 STAT.
294); SEC. 808, PLACING RESTRICTIONS ON THE SALE TO ALIENS OF VESSELS
OWNED BY A UNITED STATES CITIZEN OR CORPORATION (FROM ACT OF SEPT. 7,
1916, C. 451, SEC. 9, 39 STAT. 730, AS AMENDED BY ACT OF JULY 15, 1918,
C. 152, SEC. 3, 40 STAT. 900); SEC. 921, PROVIDING THAT NO SALE,
CONVEYANCE OR MORTGAGE OF A VESSEL OF THE UNITED STATES SHALL BE VALID
AGAINST ONE OTHER THAN THE GRANTOR OR MORTGAGOR, HIS HEIRS OR PERSONS
WITH NOTICE, UNTIL RECORDED (FROM ACT OF JUNE 5, 1920, C. 250, SEC. 30,
41 STAT. 1000).    FN14  46 U.S.C. SEC. 34 PROVIDES FOR REGISTRATION OF
VESSELS SOLD UNDER PROCESS OF LAW WHERE THE FORMER OWNERS RETAINS THE
SHIP'S REGISTRATION, UPON THE NEW OWNER'S MEETING THE LEGAL
REQUIREMENTS FOR REGISTRY (FROM ACT OF MAR. 2, 1797, C. 7, 1 STAT.
498). 

FN15  IT IS NOTEWORTHY THAT CONGRESS HAS EXPLICITLY PLACED PARTITION
ACTIONS UNDER FEDERAL JURISDICTION ONLY WHERE THE UNITED STATES IS A
TENANT, 28 U.S.C. SECS. 1347, 2409.  PARTITION OF REAL ESTATE BELONGING
TO OKLAHOMA INDIANS HAS BEEN MADE SUBJECT TO STATE LAWS.  25 U.S.C.
SEC. 355. 

FN16  "THE RULE OF THE CIVIL AS OF THE COMMON LAW, THAT NO ONE SHOULD
BE COMPELLED TO HOLD PROPERTY IN COMMON WITH ANOTHER, GREW OUT OF A
PURPOSE TO PREVENT STRIFE AND DISAGREEMENT: STORY'S EQ. SEC. 648; AND
ADDITIONAL REASONS ARE FOUND IN THE MORE MODERN POLICY OF FACILITATING
THE TRANSMISSION OF TITLES AND IN THE INCONVENIENCE OF JOINT HOLDING." 
CALDWELL V. SNYDER, 178 PA. 420, 422, 35 A. 996.  "  ...  PARTITION IS
A RIGHT MUCH FAVORED, UPON THE GROUND THAT IT NOT ONLY SECURES PEACE,
BUT PROMOTES INDUSTRY AND ENTERPRISE, THAT EACH SHOULD HAVE HIS OWN." 
CANNON V. LOMAX, 29 S.C. 369, 371, 7 S.E. 529, 530. 

MR. JUSTICE REED CONCURS IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

FOR ONE REASON OR ANOTHER, EIGHT CO-OWNERS HAVING EIGHTY-FIVE PERCENT
INTEREST IN A VESSEL WISHED TO TERMINATE THE ENTERPRISE BUT FOUND THE
PRESENT PETITIONER, OWNER OF THE REMAINING FIFTEEN PERCENT, OPPOSED TO
SALE.  ACCORDINGLY THEY ASKED A CALIFORNIA STATE COURT FOR JUDICIAL
SALE OF THE VESSEL AND APPROPRIATE DISTRIBUTION OF THE PROCEEDS AMONG
ALL THE OWNERS.  THIS IS THE ONLY CLAIM THE PLAINTIFFS MADE.  THERE WAS
NO CLAIM TO ENFORCE A PERSONAL RIGHT AGAINST THE PETITIONER; NO CLAIM
OF ANY SORT FOR WHICH THE LEVY ON THE SHIP AS SECURITY WAS SOUGHT FOR
SOME PERSONAL OBLIGATION OWING FROM THE PETITIONER.  THE JURISDICTION
OF THE STATE COURT WAS INVOKED EXCLUSIVELY FOR THE SALE OF A VESSEL. 

IF THIS IS NOT AN ACTION AGAINST THE THING, IN THE SENSE IN WHICH
THAT HAS MEANING IN THE LAW, THEN THE CONCEPTS OF A RES AND AN IN REM
PROCEEDING HAVE AN ESOTERIC MEANING WHICH I DO NOT UNDERSTAND.  FROM
THE TERMS OF THE COMPLAINT FOR PARTITION THROUGH THE OPINION OF THIS
COURT AUTHORIZING THE STATE COURT TO GRANT IT, THERE IS NOT THE
REMOTEST SUGGESTION THAT WE ARE DEALING WITH A REMEDY TO ENFORCE A
SEPARATE UNDERLYING PERSONAL CLAIM.  HERE THE SHIP'S THE THING - NOT A
CLAIM OUTSIDE THE SHIP FOR WHICH AN ANCILLARY REMEDY AGAINST THE SHIP
IS SOUGHT.  CF. KNAPP, STOUT & CO. V. MCCAFFREY, 177 U.S. 638.  IS IT
TO BE DOUBTED THAT IF CALIFORNIA PROCEDURE REQUIRED THE PROCEEDING TO
BE BROUGHT BY NAME AGAINST THE OIL SCREW VESSEL LIBERTY, OFFICIAL NO.
256332, OR IF THE ACTION HAD IN FACT BEEN SO ENTITLED, IT WOULD
INESCAPABLY BE DEEMED AN ACTION IN REM?  TO MAKE THE EXISTENCE OF STATE
POWER DEPEND ON SUCH TENUOUS FORMALITIES IS TO MAKE QUESTIONS OF
JURISDICTION IN MATTERS MARITIME, AS BETWEEN FEDERAL AND STATE COURTS,
TURN ON DISTINCTIONS MUCH TOO FRAIL. 

OF COURSE STATE COURTS ARE FREE TO GIVE THE RELIEF HERE SOUGHT, IF
ADMIRALTY HAS NOT JURISDICTION OF A LIBEL FOR PARTITION.  STATE LAW
WOULD THEN NOT BE ENCROACHING UPON THE ADMIRALTY JURISDICTION OF THE
FEDERAL COURTS.  WHETHER ADMIRALTY HAS SUCH JURISDICTION, EXCEPT WHEN
THE CONTEST OVER THE USE OF THE VESSEL IS BETWEEN OWNERS WHOSE INTEREST
IS EQUALLY DIVIDED, HAS NOT BEEN ADJUDICATED BY THIS COURT, AND THE
LEARNING ON THE SUBJECT IS NOT COMPELLING.  THE PROBLEM HAS RECEIVED
ITS FULLEST CONSIDERATION IN FISCHER V. CAREY, 173 CAL. 185, 159 P. 577
(1916), AND SUBSTANTIALLY ON THE BASIS OF ARGUMENTS THERE ELABORATED, I
CONCLUDE THAT ADMIRALTY DOES HAVE JURISDICTION IN THE CIRCUMSTANCES OF
THIS CASE.  THE NUB OF THE HOLDING OF THAT CASE IS THAT "THE
JURISDICTION OF THE COURTS OF THE UNITED STATES IN ADMIRALTY IS FULL
AND COMPLETE TOUCHING THE MATTER OF SALE UNDER THE CIRCUMSTANCES HERE
INDICATED, THAT IS TO SAY, WHERE DISSENTIENT OWNERS ARE AT STRIFE OVER
THE USE TO BE MADE OF THE SHIP; FOR IT MUST, FROM THE NATURE OF
ADMIRALTY JURISDICTION, BE A FUNDAMENTAL PART OF THAT JURISDICTION TO
EXERCISE CONTROL OVER THE REM - THE SHIP ITSELF."  173 CAL., AT 198,
159 P., AT 582.   (FN1) 

THE SUPREME COURT OF CALIFORNIA IN SUSTAINING THE STATE'S POWER WHICH
IT HAD DENIED IN FISCHER V. CAREY DID NOT OVERRULE THAT CASE.  IT
REACHED THE RESULT IT DID, BECAUSE IT FOUND THAT THE "SAVING CLAUSE,"
DESCENDED FROM THE FIRST JUDICIARY ACT, 1 STAT. 73, 77, HAD BEEN
DRASTICALLY MODIFIED BY THE 1948 REVISION OF THE JUDICIAL CODE.  28
U.S.C. SEC.  1333.  (FN2)  THE REVISER'S NOTES COMPLETELY REFUTE THIS
VIEW.  AND SINCE THIS COURT DOES NOT ADOPT THE CONSTRUCTION GIVEN SEC.
1333 BY THE CALIFORNIA SUPREME COURT, THE ARGUMENT AGAINST IT NEED NOT
BE ELABORATED. 

ONCE IT IS ESTABLISHED THAT THE FEDERAL COURTS HAVE JURISDICTION AND
THAT THE REMEDY HERE SOUGHT IN A STATE COURT HAS "ALL THE ESSENTIAL
FEATURES OF AN ADMIRALTY PROCEEDING IN REM," THE HINE V. TREVOR, 4
WALL.  555, 571, THE DISPOSITION OF THIS CASE IS CLEARLY CONTROLLED BY
DECISIONS OF THIS COURT.  THEY WERE THUS SUMMARIZED IN AN OPINION FOR
THE COURT BY MR. JUSTICE BRANDEIS, THAN WHOM NO MEMBER OF THIS COURT
GAVE WIDER SCOPE TO CONCURRENT STATE JURISDICTION IN MARITIME MATTERS:
"A STATE MAY NOT PROVIDE A REMEDY IN REM FOR ANY CAUSE OF ACTION WITHIN
THE ADMIRALTY JURISDICTION."  RED CROSS LINE V. ATLANTIC FRUIT CO., 264
U.S. 109, 124. 

FROM THE ADMIRALTY CLAUSE OF THE CONSTITUTION, THIS COURT HAS DRAWN
PROBABLY GREATER SUBSTANTIVE LAW-MAKING POWERS THAN IT EXERCISES IN ANY
OTHER AREA OF THE LAW.  SEE, E.G., THE OSCEOLA, 189 U.S. 158.  BROAD AS
ARE THE IMPLICATIONS OF THIS CLAUSE, IT DOES NOT AUTHORIZE THIS COURT
TO DECIDE AS A MATTER OF POLICY, WHOLLY UNTRAMMELED BY THE HISTORIC
ROOTS OF ADMIRALTY, WHAT RELIEF MAY BE SOUGHT EXCLUSIVELY IN THE
FEDERAL ADMIRALTY COURTS AND WHAT MAY BE CONCURRENTLY GIVEN BY THE
STATE COURTS.  IT IS SIGNIFICANT THAT THE NEED FOR A BODY OF MARITIME
LAW, APPLICABLE THROUGHOUT THE NATION AND NOT LEFT TO THE DIVERSITY OF
THE SEVERAL STATES, WAS THE ONE BASIS FOR THE CREATION OF A SYSTEM OF
INFERIOR FEDERAL COURTS, AUTHORIZED BY THE CONSTITUTION, WHICH WAS
RECOGNIZED BY EVERY SHADE OF OPINION AT THE PHILADELPHIA CONVENTION. 

WERE CONGRESS TO AUTHORIZE THE STATES TO EXERCISE JURISDICTION FOR
THE PARTITION OF VESSELS, WE WOULD OF COURSE HAVE A VERY DIFFERENT
QUESTION THAN THE ONE NOW BEFORE US, THE MORE SO BECAUSE ONE MAY ASSUME
THAT SUCH A STATUTE WOULD DIFFERENTIATE BETWEEN SMALL CRAFT PLYING
WITHIN A LIMITED AREA AND OCEAN-GOING VESSELS.  THIS COURT CANNOT ON
ITS OWN INITIATIVE MAKE SUCH DIFFERENTIATIONS, REGARDING THE POWER OF
STATE COURTS, AS BETWEEN SMALL VESSELS AND LARGE.  WHATEVER POWER MAY
BE EXERCISED BY CONGRESS IN CEDING NATIONAL MARITIME JURISDICTION TO
THE STATES, IT IS NOT FOR THIS COURT TO ALLOW STATE COURTS TO HAVE
CONCURRENT JURISDICTION IN REM, SOLELY BECAUSE THE "ESTABLISHMENT OF A
NATIONAL PARTITION RULE IS NOT OF MAJOR IMPORTANCE TO THE SHIPPING
WORLD." 

FN1  FISCHER V. CAREY WAS RECENTLY FOLLOWED IN CLINE V. PRICE, 39
WASH. 2D, 816, 239 P.2D 322 (1951). 

FN2  THE ORIGINAL "SAVING CLAUSE" READ: "SAVING TO SUITORS, IN ALL
CASES, THE RIGHT OF A COMMON LAW REMEDY, WHERE THE COMMON LAW IS
COMPETENT TO GIVE IT."  28 U.S.C. SEC.  1333 NOW READS:  "SAVING TO
SUITORS IN ALL CASES ALL OTHER REMEDIES TO WHICH THEY ARE OTHERWISE
ENTITLED." 
..END :




UNITED STATES V. LINDSAY 346 U.S. 568 


NO. 94.  ARGUED DECEMBER 1-2, 1953 - DECIDED JANUARY 18, 1954 - 202 F.2D
239, AFFIRMED. 


29, 1948, AS AMENDED, 15 U.S.C. SEC. 714BC), BARS SUITS BY OR AGAINST
THE CORPORATION UNLESS BROUGHT "WITHIN SIX YEARS AFTER THE RIGHT
ACCRUED ON WHICH SUIT IS BROUGHT."  THE GOVERNMENT SUED THESE PRIVATE
PARTIES IN 1952 TO RECOVER ON A CLAIM GROWING OUT OF THE ALLEGED
DELIVERY OF DAMAGED WOOL TO THE CORPORATION IN 1945.  HELD:  THE
GOVERNMENT'S CLAIM "ACCRUED" ON THE DATE A RIGHT TO SUE CAME INTO
EXISTENCE, RATHER THAN ON THE DATE THE ACT BECAME EFFECTIVE, AND THE
SUIT IS BARRED.  PP. 568-571. 

UNITED STATES V. LINDSAY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ON FEBRUARY 29, 1952, THE UNITED STATES FILED THE COMPLAINT IN THIS
CASE AGAINST LINDSAY AND THE OTHER RESPONDENTS ALLEGING THAT ON
FEBRUARY 26, 1945, LINDSAY HAD DELIVERED DAMAGED WOOL TO THE GOVERNMENT
IN VIOLATION OF AN AGREEMENT WITH THE COMMODITY CREDIT CORPORATION, A
WHOLLY OWNED CORPORATE AGENCY OF THE UNITED STATES.  THE DEFENDANTS
MOVED TO DISMISS ON THE GROUND THAT THE GOVERNMENT'S SEVEN YEAR OLD
CLAIM WAS BARRED BY THE SIX YEAR TIME LIMIT IN SEC. 4(C) OF A 1948 ACT
AS AMENDED.  (FN1)  THAT SECTION PROVIDES THAT "NO SUIT BY OR AGAINST
THE CORPORATION SHALL BE ALLOWED UNLESS  ...  IT SHALL HAVE BEEN
BROUGHT WITHIN SIX YEARS AFTER THE RIGHT ACCRUED ON WHICH SUIT IS
BROUGHT  ...  ."  HOLDING THAT THE 1952 SUIT WAS BARRED BECAUSE THE
RIGHT TO SUE HAD "ACCRUED" IN 1945 WHEN THE DAMAGED WOOL WAS DELIVERED,
THE DISTRICT COURT DISMISSED THE CASE.  105 F. SUPP. 467.  THE COURT OF
APPEALS FOR THE FIRST CIRCUIT AFFIRMED ON THE SAME GROUND.  202 F.2D
239.  HOWEVER, THE COURT OF APPEALS FOR THE SIXTH CIRCUIT HAS HELD THAT
A GOVERNMENT CLAIM ARISING PRIOR TO THE 1948 ACT "ACCRUED" NOT WHEN THE
SUIT AROSE BUT WHEN THE ACT BECAME EFFECTIVE.  FIELD PACKING CO. V.
UNITED STATES, 197 F.2D 329.  THIS CONFLICT AMONG THE CIRCUITS AS TO
THE STATUTORY MEANING OF "ACCRUED" LED US TO GRANT CERTIORARI.  346
U.S. 810.  THE QUESTION HERE IS WHETHER GOVERNMENT CLAIMS GROWING OUT
OF THE CORPORATION'S TRANSACTIONS PRIOR TO THE ACT "ACCRUED" ON THE
DATE A RIGHT TO SUE CAME INTO EXISTENCE OR ON THE DATE THE ACT BECAME
EFFECTIVE. 

IN COMMON PARLANCE A RIGHT ACCRUES WHEN IT COMES INTO EXISTENCE AS
THE GOVERNMENT'S CLAIM AGAINST LINDSAY DID IN 1945.  GIVING "ACCRUED"
ITS NORMAL MEANING WOULD THEREFORE BAR ALL CLAIMS NOT SUED ON WITHIN
SIX YEARS FROM THE DATE THEY AROSE WHETHER THEY CAME INTO EXISTENCE
BEFORE OR AFTER PASSAGE OF THE ACT.  THE GOVERNMENT ADMITS THAT THE
NORMAL MEANING OF "ACCRUED" CONTROLS WHEN THE 1948 ACT IS APPLIED
PROSPECTIVELY, THAT IS, TO CLAIMS ARISING AFTER THE ACT'S EFFECTIVE
DATE.  BUT CONSTRUING THE ACT IN A WAY THAT REQUIRES ITS SIX YEAR
LIMITATION PERIOD TO BEGIN BEFORE 1948 GIVES THE LAW A RETROACTIVE
EFFECT, SHORTENING THE TIME FOR SUIT ON SOME PRIOR CLAIMS AND SUMMARILY
CUTTING OFF OTHERS.  TO PREVENT RETROACTIVITY WE ARE URGED TO DEPART
FROM THE NORMAL MEANING OF "ACCRUED" WHEN SEC. 4(C) IS APPLIED TO
PREEXISTING CLAIMS.  THIS SUGGESTED DEPARTURE IS NO MINOR ONE.  WE ARE
ASKED TO READ THE WORDS "SIX YEARS AFTER THE RIGHT ACCRUED" AS THOUGH
CONGRESS INTENDED TO SAY "SIX YEARS AFTER THE EFFECTIVE DATE OF THE ACT
WHEN IT IS APPLIED TO PRE-EXISTING CAUSES OF ACTION."  PRECEDENTS ARE
CITED IN WHICH, TO AVOID RETROACTIVE BARRING OF SUITS COURTS HAVE
REFUSED TO GIVE "ACCRUED" ITS NORMAL MEANING AND HAVE INSTEAD GIVEN IT
A SPECIAL MEANING - THE DATE A NEW STATUTE OF LIMITATIONS BECOMES
EFFECTIVE.  IN EFFECT, IT IS ARGUED THAT THESE COURT DECISIONS HAVE
MADE "ACCRUED" A WORD OF ART WHEN USED IN SUCH STATUTES.  THEREFORE, WE
ARE ASKED TO HOLD THAT CONGRESS USED "ACCRUED" IN SEC. 4(C) WITH THIS
SPECIAL MEANING. 

IT IS TRUE THAT COURTS HAVE SOMETIMES GIVEN "ACCRUED" THE MEANING THE
GOVERNMENT HERE SUGGESTS, BUT WE ARE UNABLE TO AGREE THAT THE WORD HAS
THEREBY TAKEN ON AN ESTABLISHED TECHNICAL MEANING WHICH CONGRESS MUST
HAVE HAD IN MIND WHEN IT USED "ACCRUED" IN THIS ACT.  THE LEGISLATIVE
HISTORY FAILS TO SHOW THAT SUCH A MEANING WAS SUGGESTED TO CONGRESS
BEFORE THE ACT WAS PASSED.  MOREOVER, MANY OF THE DECISIONS THAT GAVE
"ACCRUED" THIS SPECIAL MEANING DID SO TO AVOID POSSIBLE CONSTITUTIONAL
QUESTIONS SHOULD THE STATUTES BE INTERPRETED IN A WAY THAT WOULD
DESTROY PRIVATE RIGHTS.  SEE, E.G., SOHN V. WATERSON, 17 WALL.  596. 
BUT NO CONSTITUTIONAL QUESTION IS RAISED BY APPLYING THIS SIX YEAR TIME
LIMIT TO PRE-EXISTING CLAIMS OF THE GOVERNMENT.  CONGRESS HAS
UNQUESTIONED POWER TO BAR RECOVERY ON GOVERNMENT CLAIMS IF IT SEES
FIT.  AND WE AGREE WITH THE COURT BELOW THAT WE NEED NOT NOW DECIDE
WHETHER SEC. 4(C) CAN BE APPLIED TO PREEXISTING CLAIMS BROUGHT BY
PRIVATE PERSONS AGAINST THE GOVERNMENT.  BUT SEE LYNCH V. UNITED
STATES, 292 U.S. 571, 581; CUMMINGS V. DEUTSCHE BANK, 300 U.S. 115,
119; ADDISON V. HURON STEVEDORING CORP., 204 F.2D 88, 91-92. 

THE GOVERNMENT ALSO URGES THAT QUITE APART FROM CONSTITUTIONAL
CONSIDERATIONS THERE ARE STRONG REASONS WHY COURTS SHOULD, WHENEVER
POSSIBLE, CONSTRUE STATUTES SO AS TO AVOID RETROACTIVITY.  CASES ARE
CITED IN WHICH PARTICULAR PROVISIONS HAVE BEEN DEEMED SO INEQUITABLE
AND UNFAIR WHEN APPLIED RETROSPECTIVELY THAT THIS COURT HAS REFUSED TO
IMPUTE TO LAW-MAKING BODIES A PURPOSE TO BRING ABOUT SUCH RESULTS. 
(FN2)  BUT WE CANNOT SAY THAT ANY CONSEQUENCES OF RETROACTIVE
APPLICATION OF THE TIME LIMIT HERE CALL ON US TO HOLD THAT CONGRESS DID
NOT INTEND THIS STATUTE TO TAKE EFFECT ACCORDING TO THE NATURAL MEANING
OF ITS WORDS.  THE GOVERNMENT HAS USED THE COMMODITY CREDIT CORPORATION
IN BUSINESS TRANSACTIONS SINCE 1933.  PROBABLY MANY CLAIMS HAVE ACCRUED
IN THE INTERVENING YEARS.  MAYBE OTHERS, LIKE THIS ONE, ARE FOR
COMPARATIVELY SMALL AMOUNTS.  ALL, WHETHER LARGE OR SMALL, COULD HAVE
BEEN SUED ON AS THEY AROSE.  WE THINK THAT CONGRESS MIGHT WELL HAVE
BELIEVED IT WISE TO BAR ALL STALE CLAIMS BY THE GOVERNMENT AGAINST ITS
AGENTS AND OTHERS WHO DEALT WITH IT IN THE PAST.  FOR AND AGAINST SUCH
A VIEW ARGUMENTS CAN BE MADE THAT ARE BASED ON COMMON NOTIONS OF
FAIRNESS AND JUSTICE.  IN THIS SITUATION IT SEEMS BETTER TO LEAVE THIS
STATUTORY PROBLEM WITH CONGRESS RATHER THAN FOR US TO STRETCH THE WORD
"ACCRUED" BEYOND ITS ORDINARY MEANING.  CF. CHASE SECURITIES CORP. V.
DONALDSON, 325 U.S. 304, 316.  AFFIRMED. 

FN1  62 STAT. 1070, AS AMENDED, 63 STAT. 154, 156; 15 U.S.C. (SUPP.
V) SEC. 714BC). 

FN2  UNITED STATES V. HETH, 3 CRANCH 399; CLARIDGE APARTMENTS CO. V.
COMMISSIONER, 323 U.S. 141; HASSETT V. WELCH, 303 U.S. 303; BREWSTER V.
GAGE, 280 U.S. 327; UNITED STATES V. MAGNOLIA CO., 276 U.S. 160; UNITED
STATES V. ST. LOUIS, S.F.&T.R. CO., 270 U.S. 1; SHWAB V. DOYLE, 258
U.S. 529; UNION PACIFIC R. CO. V. LARAMIE STOCK YARDS CO., 231 U.S.
190; UNITED STATES FIDELITY & GUARANTY CO. V. STRUTHERS WELLS CO., 209
U.S. 306; LEWIS V. LEWIS, 7 HOW.  776. 

MR. JUSTICE REED, DISSENTING. 

AN EMPHASIS BY DISSENT UPON THE COURT'S DEPARTURE FROM PRECEDENTS OF
STATUTORY CONSTRUCTION WILL NOT BE USELESS IF IT AROUSES THE ATTENTION
OF STATUTORY DRAFTSMEN TO THE NECESSITY OF MORE EXPLICIT LANGUAGE TO
PROTECT GOVERNMENT CLAIMS. 

PRIOR TO THE PASSAGE OF THE ACT IN QUESTION, A DELAWARE CORPORATION
OF THE SAME NAME AS THE FEDERAL AGENCY CREATED BY THE COMMODITY CREDIT
CORPORATION CHARTER ACT OF 1948 EXISTED AND OPERATED.   15 U.S.C.
(SUPP. III) SEC. 713.  IT HAD CLAIMS AND OBLIGATIONS WHICH WERE
UNAFFECTED BY THEIR TRANSFER TO THE PRESENT CORPORATION BY THE CHARTER
ACT.  THE EARLIER DELAWARE CORPORATION WAS A WHOLLY OWNED AGENCY OF THE
UNITED STATES WITHOUT STATUTORY LIMITATION, STATE OR FEDERAL, ON ITS
RIGHT TO SUE UPON ITS CLAIMS.  UNITED STATES V. SUMMERLIN, 310 U.S.
414, AND CASES CITED.  THEREFORE, UP TO THE TIME OF THE ENACTMENT OF
SEC. 4(C), 15 U.S.C. (SUPP. III) SEC. 714BC), THERE WAS NO COMPELLING
REASON, BEYOND THE DESIRE FOR PROMPT AND PROPER ADMINISTRATION, FOR THE
UNITED STATES TO FILE ITS SUITS. 

AS THE CORPORATION HAD PLAYED A MAJOR PART SINCE ITS ORGANIZATION IN
1933 IN THE PURCHASE, STORAGE AND FINANCING OF AMERICAN AGRICULTURAL
PRODUCTS, LARGE CLAIMS HAD ACCUMULATED IN ITS FAVOR AND AGAINST IT OVER
THE YEARS.  S. REP. NO. 1022, 80TH CONG., 2D SESS.  IF THE PROBLEM HERE
PRESENTED WAS RES INTEGRA, THE EXISTENCE OF OLD CLAIMS, NOT THEN BARRED
BY LIMITATION, WOULD LEAD ME TO INTERPRET THE WORDS, "BROUGHT WITHIN
SIX YEARS AFTER THE RIGHT ACCRUED,"* AS PROSPECTIVE ONLY TO AVOID
IMPUTING TO CONGRESS UNREASONABLE AND ARBITRARY DESTRUCTION OF VALID
CLAIMS FOR AND AGAINST THE CORPORATION.  THIS CONCLUSION WOULD FOLLOW
FROM THE PRINCIPLE THAT STATUTES OF LIMITATION "MUST RECEIVE A STRICT
CONSTRUCTION IN FAVOR OF THE GOVERNMENT."  DUPONTE DE NEMOURS & CO. V.
DAVIS, 264 U.S. 456, 462; INDEPENDENT COAL CO. V. UNITED STATES, 274
U.S. 640, 650. 

*IT WAS FOUR YEARS IN THE 1948 ACT, 62 STAT. 1070. 

OTHER PRINCIPLES, IT SEEMS TO ME, NECESSITATE THIS CONCLUSION. 
SENATOR AIKEN, CHAIRMAN OF THE SUBCOMMITTEE IN CHARGE OF THE BILL, ITS
FLOOR MANAGER AND THE SENIOR SENATE CONFEREE RECORDED HIS VIEW IN A
STATEMENT PUBLISHED AFTER THE CONGRESS ADJOURNED. 

"WITH RESPECT TO CLAIMS BY THE CORPORATION, THE 4-YEAR PERIOD OF
LIMITATIONS WILL NOT BEGIN TO RUN ON CLAIMS OF THE DELAWARE CORPORATION
TRANSFERRED TO THE FEDERAL CORPORATION UNTIL JUNE 30, 1948, THE
EFFECTIVE DATE OF THE NEW CHARTER."  94 CONG. REC. A4409. 

THE PRECEDENTS IN THIS COURT ON THE INTERPRETATION OF STATUTES
EATABLISHING LIMITATIONS BY THE DEFINITION OF "ACCRUED" WITHOUT
EXCEPTION GIVE THE WORD PROSPECTIVE MEANING.  SEE E.G., UNITED STATES
V. ST. LOUIS, S.F.&T.R. CO., 270 U.S. 1; FULLERTON-KRUEGER CO. V.
NORTHERN PACIFIC R. CO., 266 U.S. 435; SOHN V. WATERSON, 17 WALL.  596;
LEWIS V. LEWIS, 7 HOW.  776. 

IN THE LIGHT OF THESE PURPOSES AND PRECEDENTS, VIEWED IN THE SETTING
OF DAMAGE TO AND PILFERAGE OF STORED CROPS, THE JUDGMENT OF THE COURT
OF APPEALS SHOULD BE REVERSED. 
..END :






CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. V. STUDE 346 U.S. 574 


NO. 209.  ARGUED DECEMBER 2-3, 1953 - DECIDED JANUARY 18, 1954 - 204
F.2D 116, 954, AFFIRMED. 


AN ADMINISTRATIVE CONDEMNATION PROCEEDING INSTITUTED BY PETITIONER
UNDER AN IOWA STATUTE RESULTED IN A COMMISSION'S AWARD OF $23,000
DAMAGES TO THE LANDOWNER.  THE STATUTE PROVIDES FOR AN APPEAL FROM THE
COMMISSION'S AWARD TO A STATE COURT.  PETITIONER FILED A COMPLAINT IN
THE FEDERAL DISTRICT COURT, ALLEGING DIVERSITY OF CITIZENSHIP, AND
PRAYING THAT THE DAMAGES FOR THE TAKING OF THE LAND BE FIXED AT NOT
MORE THAN $10,000.  PETITIONER ALSO FILED AN APPEAL IN THE STATE COURT,
WHERE, AS REQUIRED BY IOWA LAW, THE CASE WAS DOCKETED WITH THE
LANDOWNER AS PLAINTIFF AND THE PETITIONER AS DEFENDANT.  THEREAFTER
PETITIONER FILED A PETITION TO REMOVE THE STATE COURT PROCEEDING TO THE
FEDERAL COURT.  RESPONDENTS FILED IN THE FEDERAL DISTRICT COURT A
MOTION TO DISMISS THE COMPLAINT FILED THEREIN AND A MOTION TO REMAND
THE CASE REMOVED FROM THE STATE COURT.  HELD: 

1.  THE CASE REMOVED FROM THE STATE COURT WAS PROPERLY ORDERED
REMANDED TO THAT COURT.  PP. 578-580. 

(A)  IN THE CIRCUMSTANCES OF THIS CASE, AN ORDER DENYING A MOTION TO
REMAND IS REVIEWED, ALTHOUGH THE ORDER WOULD NOT BE APPEALABLE IF IT
STOOD ALONE.  P. 578. 

(B)  WITHIN THE MEANING OF 28 U.S.C. SEC. 1441(A), PETITIONER WAS
PLAINTIFF AND NOT "DEFENDANT" IN THE STATE COURT PROCEEDING, AND
THEREFORE WAS NOT AUTHORIZED TO REMOVE THAT PROCEEDING TO THE FEDERAL
DISTRICT COURT.  PP. 578-580. 

(C)  FOR THE PURPOSE OF REMOVAL, THE FEDERAL LAW DETERMINES WHO IS
PLAINTIFF AND WHO IS DEFENDANT; AND THE PROCEDURAL PROVISIONS OF THE
STATE LAW ARE NOT CONTROLLING.  P. 580. 

2.  THE ORIGINAL COMPLAINT IN THE FEDERAL DISTRICT COURT WAS PROPERLY
DISMISSED.  PP.  580-582. 

(A)  PETITIONER'S COMPLAINT IN THE FEDERAL DISTRICT COURT WAS AN
ATTEMPT TO HAVE THAT COURT REVIEW THE STATE PROCEEDINGS ON APPEAL. 
IOWA LAW DOES NOT PURPORT TO AUTHORIZE SUCH AN APPEAL, CONGRESS HAS
PROVIDED NONE BY STATUTE, AND THE FEDERAL RULES OF CIVIL PROCEDURE MAKE
NO SUCH PROVISION.  P. 580-582. 

(B)  THE COMPLAINT IN THE FEDERAL DISTRICT COURT DID NOT INVOKE THE
JURISDICTION OF THAT COURT IN AN EMINENT DOMAIN PROCEEDING.  P. 582. 

(C)  THE QUESTION WHETHER PETITIONER COULD PROCEED BY WAY OF AN
ORIGINAL ACTION IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF IOWA IS NOT HERE PRESENTED OR DECIDED.  P. 582. 

CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. V. STUDE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, A DELAWARE CORPORATION, OWNS AND OPERATES ITS
RAILROAD THROUGH POTTAWATTAMIE COUNTY, IOWA.  IT WAS AUTHORIZED BY THE
INTERSTATE COMMERCE COMMISSION TO IMPROVE ITS LINE OF RAILWAY IN THAT
COUNTY AND BY THE IOWA STATE COMMERCE COMMISSION TO ACQUIRE BY
CONDEMNATION ANY LAND NECESSARY FOR THE IMPROVEMENT. 

ON JANUARY 18, 1952, PURSUANT TO THE IOWA CODE, (FN1) THE PETITIONER
FILED WITH THE SHERIFF OF THE COUNTY ITS APPLICATION TO CONDEMN CERTAIN
LANDS IN THE COUNTY OWNED BY RESPONDENT STUDE.  THE SHERIFF APPOINTED A
COMMISSION OF SIX RESIDENT FREEHOLDERS TO ASSESS DAMAGES.  NOTICE WAS
GIVEN BY THE SHERIFF TO THE RESPONDENT OWNER AND OTHERS INTERESTED IN
THE LAND, AND AN AWARD OF DAMAGES IN THE SUM OF $23,888.60 WAS ALLOWED
TO THE OWNER AND $1,000 TO THE TENANT.  THE AMOUNT OF THE ASSESSMENT
WAS PAID BY THE PETITIONER TO THE SHERIFF AND THE PETITIONER TOOK
POSSESSION OF THE LAND.   (FN2)  SUCH APPRAISAL BECAME FINAL UNLESS
APPEALED FROM. 

ON MARCH 6, 1952, THE PETITIONER FILED WITH THE SHERIFF OF THE COUNTY
A NOTICE OF APPEAL FROM THE COMMISSION'S AWARD.  THE IOWA CODE PROVIDES
FOR APPEAL AS FOLLOWS: 

"472.18 APPEAL.  ANY PARTY INTERESTED MAY, WITHIN THIRTY DAYS AFTER
THE ASSESSMENT IS MADE, APPEAL THEREFROM TO THE DISTRICT COURT, BY
GIVING THE ADVERSE PARTY, HIS AGENT OR ATTORNEY, AND THE SHERIFF,
WRITTEN NOTICE THAT SUCH APPEAL HAS BEEN TAKEN. 

     *         *         *         * * 

"472.21 APPEALS - HOW DOCKETED AND TRIED.  THE APPEAL SHALL BE
DOCKETED IN THE NAME OF THE OWNER OF THE LAND, OR OF THE PARTY
OTHERWISE INTERESTED AND APPEALING, AS PLAINTIFF, AND IN THE NAME OF
THE APPLICANT FOR CONDEMNATION AS DEFENDANT, AND BE TRIED AS IN AN
ACTION BY ORDINARY PROCEEDINGS."  CODE OF IOWA, 1950. 

THE PETITIONER THEN FILED A COMPLAINT IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF IOWA AGAINST THE RESPONDENTS IN
WHICH IT ALLEGED DIVERSITY OF CITIZENSHIP, JURISDICTIONAL AMOUNT,
AUTHORITY TO MAKE IMPROVEMENTS AND TO CONDEMN THEREFOR, TOGETHER WITH A
DESCRIPTION OF THE LAND AND THAT RESPONDENT STUDE WAS THE OWNER, AND
THAT THE ASSESSMENT PROCEEDINGS HAD BEEN INSTITUTED IN THE SHERIFF'S
OFFICE, RESULTING IN THE ASSESSMENT OF DAMAGES OF $23,888.60, WHICH WAS
ALLEGED TO BE EXCESSIVE, AND THAT APPEAL WAS TAKEN BY NOTICE DULY
GIVEN.  THIS NOTICE WAS REFERRED TO AS EXHIBIT A TO THE COMPLAINT,
WHICH EXHIBIT RECITED THAT THE APPEAL WAS TAKEN TO THE FEDERAL DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF IOWA, AND A TRANSCRIPT OF THE
SHERIFF'S PROCEEDING WAS FILED IN THAT COURT.  THE PRAYER WAS THAT THE
DAMAGES FOR THE TAKING OF THE LAND BE FIXED AT NOT MORE THAN $10,000. 
ON THIS COMPLAINT, A SUMMONS WAS ISSUED AND SERVED UPON THE
RESPONDENTS. 

THE PETITIONER ALSO FILED AN APPEAL FROM THIS ASSESSMENT IN THE STATE
COURT, THE DISTRICT COURT FOR POTTAWATTAMIE COUNTY.  THE CASE WAS
DOCKETED THERE WITH THE LANDOWNER AS THE PLAINTIFF AND THE PETITIONER
CONDEMNOR AS DEFENDANT, AS REQUIRED BY THE IOWA CODE.  THEREAFTER, A
PETITION TO REMOVE THE CAUSE TO THE FEDERAL COURT WAS FILED BY THE
PETITIONER.  THE RESPONDENTS FILED IN THE FEDERAL DISTRICT COURT A
MOTION TO REMAND THE CASE REMOVED FROM THE STATE COURT. 

THE FEDERAL COURT GRANTED THE MOTION TO DISMISS AND DISMISSED THE
COMPLAINT BUT DENIED THE MOTION TO REMAND.  THE PETITIONER APPEALED
FROM THE JUDGMENT DISMISSING ITS COMPLAINT.  THE RESPONDENTS GAVE
NOTICE OF APPEAL FROM THE ORDER OF THE DISTRICT COURT DENYING THE
MOTION TO REMAND.  THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S
JUDGMENT DISMISSING THE COMPLAINT AND REVERSED THE DISTRICT COURT'S
DENIAL OF THE MOTION TO REMAND, AND ORDERED THE CAUSE REMANDED TO THE
STATE COURT.  204 F.2D 116, 204 F.2D 954.  WE GRANTED CERTIORARI, 346
U.S. 810. 

THE ORDER DENYING THE MOTION TO REMAND.  OBVIOUSLY, SUCH AN ORDER IS
NOT FINAL AND APPEALABLE IF STANDING ALONE.  REED V. LEHMAN, 91 F.2D
919; MILLER V. PYRITES CO., 71 F.2D 804.  WHILE THESE TWO CASES WERE
SEPARATE ACTIONS PENDING ON THE DOCKET OF THE FEDERAL DISTRICT COURT,
THEY BOTH INVOLVE THE SAME SUBJECT AND THEY WERE TREATED BY THE
PARTIES, THE DISTRICT COURT AND THE COURT OF APPEALS AS IF THE
DISMISSAL APPEALED FROM AND THE ORDER IN THE REMOVAL CASES WERE MADE IN
ONE CASE.  TREATING THEM AS ONE CASE, THE CROSS-ERROR, CHALLENGING THE
ORDER DENYING THE MOTION TO REMAND, MAY BE CONSIDERED AS ASSIGNED IN A
CASE INVOLVING AN APPEALABLE ORDER, THE ORDER DISMISSING THE COMPLAINT
AND THE ACTION.  THIS IS TRUE DESPITE THE FACT THAT THE ORDER DENYING
THE MOTION TO REMAND STANDING ALONE WOULD NOT BE APPEALABLE.  DECKERT
V. INDEPENDENCE SHARES CORP., 311 U.S. 282, 287. 

WE COME THEREFORE TO THE MERITS OF THE MOTION TO REMAND.  THE
QUESTION ON THIS MOTION IS WHETHER THE PETITIONER WAS A DEFENDANT
NONRESIDENT OF IOWA AND THEREFORE AUTHORIZED TO REMOVE TO THE FEDERAL
DISTRICT COURT AS PROVIDED BY STATUTE, 28 U.S.C. SEC. 1441(A). 

THE PROCEEDING BEFORE THE SHERIFF IS ADMINISTRATIVE UNTIL THE APPEAL
HAS BEEN TAKEN TO THE DISTRICT COURT OF THE COUNTY.  THEN THE
PROCEEDING BECOMES A CIVIL ACTION PENDING BEFORE "THOSE EXERCISING
JUDICIAL FUNCTIONS" FOR THE PURPOSE OF REVIEWING THE QUESTION OF
DAMAGES.  MYERS V. CHICAGO & N.W.R. CO., 118 IOWA 312, 315-316, 91 N.W.
1076, 1078.  WHEN THE PROCEEDING HAS REACHED THE STAGE OF A PERFECTED
APPEAL AND THE JURISDICTION OF THE STATE DISTRICT COURT IS INVOKED, IT
THEN BECOMES IN ITS NATURE A CIVIL ACTION AND SUBJECT TO REMOVAL BY THE
DEFENDANT TO THE UNITED STATES DISTRICT COURT.  BOOM CO. V. PATTERSON,
98 U.S. 403, 407.  (FN3) 

IS THE PETITIONER SUCH A DEFENDANT?  THE PETITIONER CONTENDS IT IS
BECAUSE THE CODE OF IOWA, SEC. 472.21, PROVIDES THAT ON APPEAL, THE
CASE SHALL BE DOCKETED IN THE DISTRICT COURT WITH THE LANDOWNER AS THE
PLAINTIFF AND THE CONDEMNOR AS THE DEFENDANT AND THEREAFTER TRIED AS IN
AN ORIGINAL PROCEEDING.  THE SUPREME COURT OF IOWA HAS CONSTRUED THIS
STATUTE TO MEAN THAT IN SUCH PROCEEDINGS ON APPEAL, THE CONDEMNOR IS
THE DEFENDANT.  MYERS V. CHICAGO & N.W.R. CO., SUPRA, AT 324, 91 N.W.,
AT 1081.  THIS COURT WAS URGED IN MASON CITY R. CO. V. BOYNTON, 204
U.S. 570, TO FOLLOW THAT CONSTRUCTION PUT UPON THIS IDENTICAL PROVISION
OF THE IOWA STATUTE BY THE SUPREME COURT OF IOWA.  THIS COURT DECLINED
TO DO SO, SAYING: 

"IT IS SAID THAT THIS COURT IS BOUND BY THE CONSTRUCTION GIVEN TO THE
STATE LAW BY THE STATE COURT.  INDEED THE ABOVE SEC. 2009 DOES NOT NEED
CONSTRUCTION; IT ENACTS, IN TERMS, THAT THE LANDOWNER SHALL BE
PLAINTIFF.  AS THE RIGHT TO REMOVE A SUIT IS GIVEN ONLY TO THE
DEFENDANTS THEREIN, BEING NON-RESIDENTS OF THE STATE, IT IS ARGUED THAT
THE STATE DECISION ENDS THE CASE. 

"BUT THIS COURT MUST CONSTRUE THE ACT OF CONGRESS REGARDING REMOVAL. 
AND IT IS OBVIOUS THAT THE WORD DEFENDANT AS THERE USED IS DIRECTED
TOWARD MORE IMPORTANT MATTERS THAN THE BURDEN OF PROOF OR THE RIGHT TO
OPEN AND CLOSE.  IT IS QUITE CONCEIVABLE THAT A STATE ENACTMENT MIGHT
REVERSE THE NAMES WHICH FOR THE PURPOSES OF REMOVAL THIS COURT MIGHT
THINK THE PROPER ONES TO BE APPLIED.  IN CONDEMNATION PROCEEDINGS THE
WORDS PLAINTIFF AND DEFENDANT CAN BE USED ONLY IN AN UNCOMMON AND
LIBERAL SENSE.  THE PLAINTIFF COMPLAINS OF NOTHING.  THE DEFENDANT
DENIES NO PAST OR THREATENED WRONG.  BOTH PARTIES ARE ACTORS: ONE TO
ACQUIRE TITLE, THE OTHER TO GET AS LARGE PAY AS HE CAN.  IT IS NOT
NECESSARY IN ORDER TO DECIDE THAT THE PRESENT REMOVAL WAS RIGHT TO SAY
THAT THE STATE DECISION WAS WRONG.  WE LEAVE THE LATTER QUESTION WHERE
WE FIND IT  ...  . 

     *         *         *         *        * 

"THEREFORE, IN A BROAD SENSE, THE RAILROAD IS THE PLAINTIFF, AS THE
INSTITUTION AND CONTINUANCE OF THE PROCEEDINGS DEPEND UPON ITS WILL
...  ."  204 U.S. 570, AT 579-580. 

FOR THE PURPOSE OF REMOVAL, THE FEDERAL LAW DETERMINES WHO IS
PLAINTIFF AND WHO IS DEFENDANT.  IT IS A QUESTION OF THE CONSTRUCTION
OF THE FEDERAL STATUTE ON REMOVAL, AND NOT THE STATE STATUTE.  THE
LATTER'S PROCEDURAL PROVISIONS CANNOT CONTROL THE PRIVILEGE OF REMOVAL
GRANTED BY THE FEDERAL STATUTE.  SHAMROCK OIL CORP. V. SHEETS, 313 U.S.
100, 104.  HERE THE RAILROAD IS THE PLAINTIFF UNDER 28 U.S.C. SEC.
1441(A) AND CANNOT REMOVE.  THE REMAND WAS PROPER. 

THE MOTION TO DISMISS.  WE THINK IT WAS PROPERLY GRANTED, AND THE
ORIGINAL COMPLAINT IN THE FEDERAL DISTRICT CORRECTLY DISMISSED.  THE
STEPS TAKEN BY THE PETITIONER WERE THOSE TO PERFECT AN APPEAL TO THE
FEDERAL DISTRICT COURT.  THE NOTICE SAID IT WAS THE INTENTION OF THE
PETITIONER TO DOCKET THE APPEAL IN THE FEDERAL COURT.  THE TRANSCRIPT
ON APPEAL WAS FILED IN THE FEDERAL COURT, AND THE COMPLAINT FILED
SOUGHT A REVIEW OF THE COMMISSION'S ASSESSMENT OF DAMAGES.  THE
PROCEEDING MAKES NO SENSE ON ANY OTHER BASIS, FOR THE ACTION IS BROUGHT
NOT BY THE PERSON INJURED, NAMELY, THE LANDOWNER, BUT BY THE RAILROAD
THAT INFLICTED THE DAMAGE.  IT WILL BE NOTICED FURTHER THAT THERE IS NO
PRAYER FOR DAMAGES BUT ONLY FOR A REVIEW OF THE ASSESSMENT, IN KEEPING
WITH THE IOWA CODE, SEC. 472.23, WHICH PROVIDES "NO JUDGMENT SHALL BE
RENDERED EXCEPT FOR COSTS  ...  ."  IN SHORT, IT WAS AN ATTEMPT OF THE
PETITIONER TO REVIEW THE STATE PROCEEDINGS ON APPEAL TO THE FEDERAL
DISTRICT COURT. 

THE PETITIONER, AFTER GIVING NOTICE OF APPEAL BY FILING NOTICE WITH
THE SHERIFF, ETC., COULD NOT PERFECT THAT APPEAL TO ANY COURT BUT THE
COURT WHICH THE STATUTE OF IOWA DIRECTED, WHICH WAS THE DISTRICT COURT
OF THAT STATE FOR THE COUNTY OF POTTAWATTAMIE.  THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA DOES NOT SIT TO REVIEW
ON APPEAL ACTION TAKEN ADMINISTRATIVELY OR JUDICIALLY IN A STATE
PROCEEDING.  A STATE "LEGISLATURE MAY NOT MAKE A FEDERAL DISTRICT
COURT, A COURT OF ORIGINAL JURISDICTION, INTO AN APPELLATE TRIBUNAL OR
OTHERWISE EXPAND ITS JURISDICTION  ...  ."  BURFORD V. SUN OIL CO., 319
U.S. 315, 317.  THE IOWA CODE DOES NOT PURPORT TO AUTHORIZE SUCH AN
APPEAL, CONGRESS HAS PROVIDED NONE BY STATUTE, AND THE FEDERAL RULES OF
CIVIL PROCEDURE MAKE NO SUCH PROVISION. 

WE CANNOT IGNORE THIS PLAIN ATTEMPT TO APPEAL AND TREAT THE COMPLAINT
AS INITIATING AN ORIGINAL ACTION, AS IF THE PARTIES HAD AGREED THAT THE
PETITIONER COULD TAKE THE LAND, LEAVING ONLY A CONTROVERSY AS TO THE
AMOUNT OF COMPENSATION.  IN THAT INSTANCE, THERE WOULD BE AN IMPLIED
AGREEMENT THAT THE PETITIONER WOULD PAY THE LANDOWNER THE FAIR VALUE OF
THE LAND.  EITHER PARTY MIGHT IN THAT POSTURE OF THE CASE ASK FOR A
DECLARATION AS TO THE AMOUNT OF COMPENSATION OWING.  THE CLAIM FOR
DAMAGES WOULD ARISE IN THAT CASE FROM THE SUBSTANTIVE RIGHTS GIVEN BY
THE IMPLIED CONTRACT, AND THE SUIT WOULD BE ONE TO ENFORCE THAT
CONTRACT.  WE HAVE NO SUCH CASE HERE.  THE RIGHT TO TAKE THE LAND AND
THE ENSUING RIGHT TO DAMAGES HERE SPRING FROM THE EXERCISE OF THE POWER
OF EMINENT DOMAIN.  THE PETITIONER HERE SEEMS TO IGNORE THE MEANS BY
WHICH IT OBTAINED THE LAND AND SEEKS TO REVIEW ONLY THE QUESTION OF
DAMAGES.  IT MAY NOT SEPARATE THE QUESTION OF DAMAGES AND TRY IT APART
FROM THE SUBSTANTIVE RIGHT FROM WHICH THE CLAIM FOR DAMAGES AROSE.  NOR
CAN IT BE SAID THAT PETITIONER HAS FULLY EXERCISED ITS POWER OF EMINENT
DOMAIN, LEAVING NOTHING TO BE DETERMINED BUT THE QUESTION OF DAMAGES. 
PETITIONER HAS POSSESSION BUT NOT TITLE TO THE LAND.  THE LAND DOES NOT
BELONG TO THE PETITIONER UNTIL THE DAMAGES ARE PAID.  THE SHERIFF, OR
THE CLERK OF THE STATE DISTRICT COURT IN CASE OF APPEAL, MUST FILE IN
THE COUNTY RECORDER'S OFFICE ALL THE PAPERS FILED IN THE PROCEEDING. 
CODE OF IOWA, 1950, SECS. 472.35, 472.36.  THE IOWA CODE, SEC. 472.41,
MAKES THIS RECORD PRESUMPTIVE EVIDENCE OF TITLE IN THE CONDEMNOR. 
PETITIONER IS STILL IN THE PROCESS OF TRYING TO GET THE LAND BY VIRTUE
OF ITS POWER OF EMINENT DOMAIN.  BUT OBVIOUSLY THE COMPLAINT HERE WAS
NOT FILED TO INVOKE THE JURISDICTION OF THE FEDERAL COURT IN AN EMINENT
DOMAIN PROCEEDING. 

THE FEDERAL RULES OF CIVIL PROCEDURE DO HAVE ELABORATE PROVISIONS FOR
PROCEDURE IN THE FEDERAL COURT IN CONDEMNATION PROCEEDINGS.  IT IS
OBVIOUS THAT THE PETITIONER WAS NOT PROCEEDING UNDER THESE RULES. 
WHETHER IT COULD SO PROCEED AS AN ORIGINAL ACTION IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA IS NOT BEFORE US. 

THE JUDGMENT IS AFFIRMED. 

FN1  "471.6 RAILWAYS.  ANY RAILWAY, INCORPORATED UNDER THE LAWS OF
THE UNITED STATES OR OF ANY STATE THEREOF, MAY ACQUIRE BY CONDEMNATION
OR OTHERWISE SO MUCH REAL ESTATE AS MAY BE NECESSARY FOR THE LOCATION,
CONSTRUCTION, AND CONVENIENT USE OF ITS RAILWAY  ...  . 

     *         *         *         *   * 

"472.3  APPLICATION FOR CONDEMNATION.  SUCH PROCEEDINGS SHALL BE
INSTITUTED BY A WRITTEN APPLICATION FILED WITH THE SHERIFF OF THE
COUNTY IN WHICH THE LAND SOUGHT TO BE CONDEMNED IS LOCATED  ...  . 

     *         *         *         *      * 

"472.4 COMMISSION TO ASSESS DAMAGES.  THE SHERIFF SHALL THEREUPON,
EXCEPT AS OTHERWISE PROVIDED, APPOINT SIX RESIDENT FREEHOLDERS OF HIS
COUNTY, NONE OF WHOM SHALL BE INTERESTED IN THE SAME OR A LIKE
QUESTION, WHO SHALL CONSTITUTE A COMMISSION TO ASSESS THE DAMAGES TO
ALL REAL ESTATE DESIRED BY THE APPLICANT AND LOCATED IN THE COUNTY." 
CODE OF IOWA, 1950.    FN2  "472.25 RIGHT TO TAKE POSSESSION OF LANDS. 
UPON THE FILING OF THE COMMISSIONERS' REPORT WITH THE SHERIFF, THE
APPLICANT MAY DEPOSIT WITH THE SHERIFF THE AMOUNT ASSESSED IN FAVOR OF
A CLAIMANT, AND THEREUPON THE APPLICANT SHALL, EXCEPT AS OTHERWISE
PROVIDED, HAVE THE RIGHT TO TAKE POSSESSION OF THE LAND CONDEMNED AND
PROCEED WITH THE IMPROVEMENT.  NO APPEAL FROM SAID ASSESSMENT SHALL
AFFECT SUCH RIGHT, EXCEPT AS OTHERWISE PROVIDED."  CODE OF IOWA, 1950. 

FN3  IN THAT CASE, THE POWER OF EMINENT DOMAIN WAS RELIED UPON FROM
BEGINNING TO END.    MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE BLACK, DISSENTING. 

I THINK THE RAILROAD HAS A RIGHT TO HAVE ITS CASE TRIED IN THE UNITED
STATES DISTRICT COURT.  CONGRESS HAS GIVEN SUCH COURTS POWER TO TRY ANY
CASE THAT IS (1) A "CIVIL" ACTION, (2) BETWEEN "CITIZENS OF DIFFERENT
STATES," (3) A "CONTROVERSY," AND (4) INVOLVES A MATTER WHICH "EXCEEDS
THE SUM OR VALUE OF $3,000 EXCLUSIVE OF INTEREST AND COSTS."  28 U.S.C.
SEC. 1332.  IF A COMPLAINT ALLEGES THESE FOUR THINGS A DISTRICT COURT
HAS JURISDICTION.  HERE THE RAILROAD'S COMPLAINT SHOWS ALL FOUR.  THE
CASE IS PLAINLY A "CIVIL" ACTION, NOT A CRIMINAL ONE.  THE RAILROAD IS
A "CITIZEN" OF DELAWARE AND THE OTHER PARTIES ARE "CITIZENS" OF IOWA. 
THERE IS A "CONTROVERSY" ABOUT TRANSFERRING TITLE TO PROPERTY AND HOW
MUCH THE RAILROAD MUST PAY FOR IT.  AND THE DISPUTE CONCERNS MORE THAN
$3,000 - THE OWNERS WANT $23,888.60, THE RAILROAD IS WILLING TO PAY
ONLY $10,000.  THE FOREGOING ALLEGATIONS WERE SUFFICIENT TO ESTABLISH
AND DID ESTABLISH DISTRICT COURT JURISDICTION.  OTHER FACTS WERE ALSO
ALLEGED.  IF THESE FACTS WERE RELEVANT TO NONJURISDICTIONAL ISSUES THEY
WERE PROPERLY ALLEGED; IF IMMATERIAL THEY COULD HAVE BEEN STRICKEN.  IN
ANY EVENT, A COURT CANNOT LOSE ITS POWER TO ACT MERELY BECAUSE OF
UNNECESSARY WORDS.  A POINT IS MADE OF THE RAILROAD'S REFERENCE TO
CERTAIN PRIOR STATE PROCEEDINGS AS THOUGH IT HAD A RIGHT TO "APPEAL" TO
THE FEDERAL COURT FROM THESE PROCEEDINGS.  BUT ASSUMING THAT THE
RAILROAD CONFIDENTLY BELIEVED IT HAD A RIGHT TO APPEAL FROM THE STATE
COMMISSION, AND THEREFORE PUT A WRONG LABEL ON ITS CIVIL ACTION, THE
DISTRICT COURT WAS STILL UNDER A DUTY TO TRY THE CASE.  AFTER ALL, THE
RAILROAD SIMPLY ASKED THE COURT TO FIX DAMAGES FOR THE PROPERTY TAKEN
AT "NOT TO EXCEED $10,000," AND FOR "SUCH FURTHER RELIEF AS MAY BE JUST
AND PROPER UNDER THE CIRCUMSTANCES."  AND THE PENDENCY OF A SIMILAR
CONDEMNATION PROCEEDING IN THE STATE COURT CERTAINLY DID NOT DESTROY
THE FEDERAL COURT'S JURISDICTION.  NOR DID THE DISTRICT COURT LOSE ITS
JURISDICTION BECAUSE THE RAILROAD FAILED TO INVOKE RULE 71A OR TO
OBSERVE ITS PROCEDURE.  IN TRYING THE CASE, THE COURT SHOULD OF COURSE
REQUIRE OBSERVANCE OF THE RULE, IF APPLICABLE, BUT FAILURE OF THE
RAILROAD TO COMPLY WITH IT IS NO SUFFICIENT REASON FOR THE COURT'S
REFUSAL TO SETTLE THE CONTROVERSY.  ALL OF THE ALLEGED PROCEDURAL
MISTAKES ATTRIBUTED TO THE RAILROAD COULD EASILY HAVE BEEN CURED; NONE
COULD POSSIBLY JUSTIFY A FINAL, UNCONDITIONAL DIMISSAL OF ITS CAUSE OF
ACTION.  SEE BELL V. HOOD, 327 U.S. 678; BROWN V. WESTERN R. OF
ALABAMA, 338 U.S. 294, 298-299, 303. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

STRIPPED OF IRRELEVANT AND BECLOUDING ELEMENTS, THIS IS A SUIT
BROUGHT IN A FEDERAL COURT FOR THE ASCERTAINMENT OF THE VALUE OF LAND,
ACQUIRED BY EMINENT DOMAIN UNDER THE PRESCRIBED IOWA PROCEDURE. 

IF THE ROCK ISLAND HAD DECIDED TO INITIATE THIS SUIT IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA, AS IT WAS
UNQUESTIONABLY ENTITLED TO DO SINCE THERE WAS DIVERSITY OF CITIZENSHIP,
MADISONVILLE TRACTION CO. V. MINING CO., 196 U.S. 239, THE PROCEDURE
DEFINED BY THE IOWA CODE WOULD, UNDER RULE 71AK) OF THE RULES OF CIVIL
PROCEDURE, HAVE HAD TO BE FOLLOWED.  FOR THAT RULE PROVIDES THAT IN AN
EMINENT DOMAIN PROCEEDING THE STATE PROCEDURE FOR DETERMINATION OF THE
VALUE OF THE CONDEMNED LAND BY A JURY OR COMMISSION, OR BOTH, MUST BE
FOLLOWED.  (FN1)  THE SOLE DIFFERENCE, THEREFORE, BETWEEN THE
INITIATION OF SUCH AN ORIGINAL CONDEMNATION PROCEEDING IN THE FEDERAL
COURT, REGARDING WHICH NO JURISDICTIONAL QUESTION COULD HAVE BEEN
RAISED, AND WHAT WAS DONE HERE IS THAT THE RAILROAD WENT DIRECTLY TO
THE SHERIFF'S COMMISSIONERS INSTEAD OF HAVING THE DISTRICT COURT SEND
IT THERE, OR ITSELF EMPLOY THE SAME KIND OF FACT-FINDING PROCEDURE. 

ONCE THE SHERIFF'S COMMISSIONERS HAD FOUND THE VALUE OF THE LAND,
THERE CAME INTO OPERATION THE IOWA LAW AUTHORIZING RECONSIDERATION OF
THE AMOUNT BY A COURT.  THIS MARKS THE BEGINNING OF THE JUDICIAL PHASE
OF THE PROCEEDINGS, "APPEAL" THOUGH IT LOOSELY BE CALLED.  (FN2)  ONE
IS ENTITLED TO ASK WHAT CONSIDERATIONS BAR ACCESS AT THIS POINT TO THE
FEDERAL DISTRICT COURT IN IOWA "SITTING  ... AS A COURT OF THAT STATE,"
MADISONVILLE TRACTION CO. V. MINING CO., SUPRA, AT 255, WHEN ALL THE
STATUTORY REQUIREMENTS FOR DIVERSITY JURISDICTION ARE PRESENT.  CAN IT
BE THAT THERE IS SOMETHING INEXORABLE ABOUT THE IOWA EMINENT DOMAIN
PROCEDURE WHEREBY IT MUST RUN ITS FULL COURSE IN THE IOWA COURTS, THUS
PREVENTING THE RAILROAD FROM PURSUING ITS FIRST JUDICIAL REMEDY IN THE
FEDERAL COURT OF THE STATE?  BUT THERE IS NOTHING IN THE IOWA CODE OR
IN THE UNITED STATES JUDICIAL CODE WHICH OUSTS THE FEDERAL COURT OF ITS
STATUTORY JURISDICTION SIMPLY BECAUSE THE ROCK ISLAND COMPLIED
LITERALLY WITH THE IOWA CONDEMNATION PROCEDURE. 

LOOKED AT FROM ANOTHER ASPECT, THIS CASE MAY BE SEEN SIMPLY AS A SUIT
FOR A DECLARATION OF MONEY OWED, SATISFYING THE REQUIREMENTS OF
DIVERSITY JURISDICTION.  "THE POINT IN ISSUE," IN THE LANGUAGE OF BOOM
CO. V. PATTERSON, 98 U.S. 403, 407, IS "THE COMPENSATION TO BE MADE TO
THE OWNER OF THE LAND; IN OTHER WORDS, THE VALUE OF THE PROPERTY
TAKEN.  NO OTHER QUESTION WAS OPEN TO CONTESTATION IN THE DISTRICT
COURT."  AS IS SPELLED OUT IN MR. JUSTICE BLACK'S OPINION, WITH WHICH I
SUBSTANTIALLY AGREE, THIS CASE PRESENTS A DISPUTE OVER SOME $13,000 -
ONLY THAT AND NOTHING MORE - AND AS SUCH IS WITHIN THE SCOPE OF 28
U.S.C. SEC. 1332. 

I AM NOT ASTUTE TO FIND GROUNDS FOR SUSTAINING DIVERSITY
JURISDICTION.  BUT WHILE EXERCISES IN PROCEDURAL DIALECTICS SO RAMPANT
IN THE EARLY NINETEENTH CENTURY STILL HOLD FOR ME INTELLECTUAL
INTEREST, I DO NOT THINK THEY SHOULD DETERMINE LITIGATION IN THE MIDDLE
OF THE TWENTIETH, EVEN WHEN BASED MERELY ON DIVERSITY OF CITIZENSHIP. 
I HAD SUPPOSED THAT THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT
COURTS WERE TO A CONSIDERABLE DEGREE DESIGNED AS A LIBERATION FROM
THESE WASTEFUL AND FETTERING NICETIES.  THE HISTORY OF THIS LITIGATION
AND ITS DISPOSITION WILL HARDLY BE CITED AS AN ILLUSTRATION OF THE
FULFILLMENT OF THE HOPE WITH WHICH CONGRESS ALLOWED THESE RULES TO TAKE
EFFECT: "IT IS CONFIDENTLY EXPECTED THAT THE ADOPTION OF THE NEW RULES
WILL MATERIALLY REDUCE THE UNCERTAINTY, DELAY, EXPENSE, AND THE
LIKELIHOOD THAT CASES MAY BE DECIDED ON TECHNICAL POINTS OF PROCEDURE
WHICH HAD NO RELATION TO THE JUST DETERMINATION OF THE CONTROVERSY ON
ITS MERITS."  H.R. REP. NO. 2743, 75TH CONG., 3D SESS. 3. 

FN1  "(K)  CONDEMNATION UNDER A STATE'S POWER OF EMINENT DOMAIN.  THE
PRACTICE AS HEREIN PRESCRIBED GOVERNS IN ACTIONS INVOLVING THE EXERCISE
OF THE POWER OF EMINENT DOMAIN UNDER THE LAW OF A STATE, PROVIDED THAT
IF THE STATE LAW MAKES PROVISION FOR TRIAL OF ANY ISSUE BY JURY, OR FOR
TRIAL OF THE ISSUE OF COMPENSATION BY JURY OR COMMISSION OR BOTH, THAT
PROVISION SHALL BE FOLLOWED." 

FN2  AS CHIEF JUDGE GARDNER, DISSENTING ON THE REHEARING BELOW,
POINTED OUT, THE FACT THAT THE ROCK ISLAND FILED A "NOTICE OF APPEAL"
AS REQUIRED BY THE IOWA CODE DOES NOT AFFECT THIS CASE.  "THE MERE FACT
THAT THE ATTEMPTED APPEAL FROM THE COMMISSIONERS' AWARD WAS NOT
WARRANTED AND DID NOT IN ITSELF CONFER JURISDICTION, DID NOT PRECLUDE
THE ROCK ISLAND FROM INVOKING THE ORIGINAL JURISDICTION OF THE FEDERAL
COURT ON THE GROUNDS SET OUT IN ITS ORIGINAL COMPLAINT."  204 F.2D 954,
956. 
..END :









SUPERIOR FILMS, INC. V. DEPARTMENT OF EDUCATION OF OHIO 346 U.S. 587 


NO. 217.  ARGUED JANUARY 6, 1954 - DECIDED JANUARY 18, 1954 - 159 OHIO
ST. 315, 112 N.E.2D 311, REVERSED.  305 N.Y. 336, 113 N.E.2D 502,
REVERSED. 


THE JUDGMENTS IN THESE CASES ARE REVERSED ON THE AUTHORITY OF JOSEPH
BURSTYN, INC. V. WILSON, 343 U.S. 495.  P. 588. 

SUPERIOR FILMS, INC. V. DEPARTMENT OF EDUCATION OF OHIO, DIVISION OF
FILM CENSORSHIP, HISSONG, SUPERINTENDENT. 

APPEAL FROM THE SUPREME COURT OF OHIO.* 

*TOGETHER WITH NO. 274, COMMERCIAL PICTURES CORP. V. REGENTS OF THE
UNIVERSITY OF THE STATE OF NEW YORK, ON APPEAL FROM THE COURT OF
APPEALS OF NEW YORK, ARGUED JANUARY 7, 1954. 

PER CURIAM. 

THE JUDGMENTS ARE REVERSED.  JOSEPH BURSTYN, INC. V. WILSON, 343 U.S.
495. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AGREES, CONCURRING. 

THE ARGUMENT OF OHIO AND NEW YORK THAT THE GOVERNMENT MAY ESTABLISH
CENSORSHIP OVER MOVING PICTURES IS ONE I CANNOT ACCEPT.  IN 1925
MINNESOTA PASSED A LAW AIMED AT SUPPRESSING BEFORE PUBLICATION ANY
"MALICIOUS, SCANDALOUS AND DEFAMATORY NEWSPAPER."  THE COURT, SPEAKING
THROUGH CHIEF JUSTICE HUGHES, STRUCK DOWN THAT LAW AS VIOLATING THE
FOURTEENTH AMENDMENT, WHICH HAS MADE THE FIRST AMENDMENT APPLICABLE TO
THE STATES.  NEAR V. MINNESOTA, 283 U.S. 697.  THE "CHIEF PURPOSE" OF
THE CONSTITUTIONAL GUARANTY OF LIBERTY OF THE PRESS, SAID THE COURT,
WAS "TO PREVENT PREVIOUS RESTRAINTS UPON PUBLICATION."  ID., P. 713. 

THE HISTORY OF CENSORSHIP IS SO WELL KNOWN IT NEED NOT BE SUMMARIZED
HERE.  CERTAINLY A SYSTEM, STILL IN FORCE IN SOME NATIONS, WHICH
REQUIRED A NEWSPAPER TO SUBMIT TO A BOARD ITS NEWS ITEMS, EDITORIALS,
AND CARTOONS BEFORE IT PUBLISHED THEM COULD NOT BE SUSTAINED.  NOR
COULD BOOK PUBLISHERS BE REQUIRED TO SUBMIT THEIR NOVELS, POEMS, AND
TRACTS TO CENSORS FOR CLEARANCE BEFORE PUBLICATION.  ANY SUCH SCHEME OF
CENSORSHIP WOULD BE IN IRRECONCILABLE CONFLICT WITH THE LANGUAGE AND
PURPOSE OF THE FIRST AMENDMENT. 

NOR IS IT CONCEIVABLE TO ME THAT PRODUCERS OF PLAYS FOR THE
LEGITIMATE THEATRE OR FOR TELEVISION COULD BE REQUIRED TO SUBMIT THEIR
MANUSCRIPTS TO CENSORS ON PAIN OF PENALTY FOR PRODUCING THEM WITHOUT
APPROVAL.  CERTAINLY THE SPOKEN WORD IS AS FREELY PROTECTED AGAINST
PRIOR RESTRAINTS AS THAT WHICH IS WRITTEN.  SUCH INDEED IS THE FORCE OF
OUR DECISION IN THOMAS V. COLLINS, 323 U.S. 516, 540.   THE FREEDOM OF
THE PLATFORM WHICH IT ESPOUSES CARRIES WITH IT FREEDOM OF THE STAGE. 

THE SAME RESULT IN THE CASE OF MOTION PICTURES NECESSARILY FOLLOWS AS
A CONSEQUENCE OF OUR HOLDING IN JOSEPH BURSTYN, INC. V. WILSON, 343
U.S. 495, 502, THAT MOTION PICTURES ARE "WITHIN THE FREE SPEECH AND
FREE PRESS GUARANTY OF THE FIRST AND FOURTEENTH AMENDMENTS." 

MOTION PICTURES ARE OF COURSE A DIFFERENT MEDIUM OF EXPRESSION THAN
THE PUBLIC SPEECH, THE RADIO, THE STAGE, THE NOVEL, OR THE MAGAZINE. 
BUT THE FIRST AMENDMENT DRAWS NO DISTINCTION BETWEEN THE VARIOUS
METHODS OF COMMUNICATING IDEAS.  ON OCCASION ONE MAY BE MORE POWERFUL
OR EFFECTIVE THAN ANOTHER.  THE MOVIE, LIKE THE PUBLIC SPEECH, RADIO,
OR TELEVISION, IS TRANSITORY - HERE NOW AND GONE IN AN INSTANT.  THE
NOVEL, THE SHORT STORY, THE POEM IN PRINTED FORM ARE PERMANENTLY AT
HAND TO REENACT THE DRAMA OR TO RETELL THE STORY OVER AND AGAIN.  WHICH
MEDIUM WILL GIVE THE MOST EXCITEMENT AND HAVE THE MOST ENDURING EFFECT
WILL VARY WITH THT THEME AND THE ACTORS.  IT IS NOT FOR THE CENSOR TO
DETERMINE IN ANY CASE.  THE FIRST AND FOURTEENTH AMENDMENTS SAY THAT
CONGRESS AND THE STATES SHALL MAKE "NO LAW" WHICH ABRIDGES FREEDOM OF
SPEECH OR OF THE PRESS.  IN ORDER TO SANCTION A SYSTEM OF CENSORSHIP I
WOULD HAVE TO SAY THAT "NO LAW" DOES NOT MEAN WHAT IT SAYS, THAT "NO
LAW" IS QUALIFIED TO MEAN "SOME" LAWS.  I CANNOT TAKE THAT STEP. 

IN THIS NATION EVERY WRITER, ACTOR, OR PRODUCER, NO MATTER WHAT
MEDIUM OF EXPRESSION HE MAY USE, SHOULD BE FREED FROM THE CENSOR. 
..END :




















SALSBURG V. MARYLAND 346 U.S. 545 


NO. 38.  ARGUED OCTOBER 20, 1953 - DECIDED JANUARY 11, 1954 - 201 MD.
212, 94 A.2D 280, AFFIRMED. 


THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT IS NOT
VIOLATED BY THE MARYLAND STATUTE HERE INVOLVED, WHICH MAKES EVIDENCE
OBTAINED BY ILLEGAL SEARCH OR SEIZURE GENERALLY INADMISSIBLE IN
PROSECUTIONS IN STATE COURTS FOR MISDEMEANORS BUT PERMITS THE ADMISSION
OF SUCH EVIDENCE IN PROSECUTIONS IN ANNE ARUNDEL COUNTY FOR CERTAIN
GAMBLING MISDEMEANORS.  PP. 546-554. 

(A)  THE STATUTE IS WITHIN THE LIBERAL LEGISLATIVE LICENSE ALLOWED A
STATE IN PRESCRIBING RULES OF PRACTICE RELATING TO ITS POLICE POWER. 
PP. 549-550. 

(B)  THE STATUTE IS NOT RENDERED INVALID BY THE FACT THAT ILLEGALLY
OBTAINED EVIDENCE IS NOT ADMISSIBLE IN PROSECUTIONS FOR LOTTERY
MISDEMEANORS THOUGH ADMISSIBLE IN PROSECUTIONS FOR OPERATING GAMBLING
POOLS; NOR BY THE FACT THAT SUCH EVIDENCE IS NOT ADMISSIBLE IN
PROSECUTIONS FOR VIOLATIONS OF COUNTY GAMBLING RESTRICTIONS THOUGH
ADMISSIBLE IN PROSECUTIONS FOR VIOLATIONS OF COMPARABLE STATE GAMBLING
RESTRICTIONS.  P. 550. 

(C)  DISTINCTIONS BASED ON COUNTY AREAS ARE NOT NECESSARILY SO
UNREASONABLE AS TO VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 550-554. 

(D)  THE STATUTE DOES NOT AFFIRMATIVELY SANCTION ILLEGAL SEARCHES AND
SEIZURES IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  P. 554. 

SALSBURG V. MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

APPELLANT'S CONVICTION OF A GAMBLING MISDEMEANOR WAS AFFIRMED BY THE
MARYLAND COURT OF APPEALS OVER HIS OBJECTION THAT EVIDENCE HAD BEEN
ADMITTED UNDER A MARYLAND STATUTE WHICH VIOLATED THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  201 MD. 212, 94 A.2D 280.  ON
APPEAL TO THIS COURT UNDER 28 U.S.C. SEC. 1257(2), AFFIRMED, P. 554. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE ISSUE HERE IS WHETHER MARYLAND HAS VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT BY AUTHORIZING ITS
COURTS, IN PROSECUTIONS IN ANNE ARUNDEL COUNTY FOR CERTAIN GAMBLING
MISDEMEANORS, TO ADMIT EVIDENCE PROCURED BY ILLEGAL SEARCH OR SEIZURE. 
THE VIOLATION IS CHARGED BECAUSE MARYLAND, AT THE SAME TIME, PROHIBITS
THE ADMISSION OF SUCH EVIDENCE IN LIKE PROSECUTIONS IN OTHER COUNTIES,
AND, EVEN IN ANNE ARUNDEL COUNTY, PROHIBITS ITS ADMISSION IN
PROSECUTIONS FOR MANY OTHER MISDEMEANORS.  FOR THE REASONS HEREAFTER
STATED, WE HOLD THAT MARYLAND'S ACTION IS VALID. 

IN 1952, POLICE OFFICERS OF ANNE ARUNDEL COUNTY ARRESTED THE
APPELLANT, SALSBURG, AND TWO OTHER MEN, IN A TWO-ROOM BUILDING IN THE
REAR OF A GARAGE ON THE GOVERNOR RITCHIE HIGHWAY IN THAT COUNTY.  THE
OFFICERS HAD NO WARRANT BUT, WHEN THEY RECEIVED NO ANSWER TO THEIR
KNOCK ON THE LOCKED DOOR OF THE REAR ROOM, THEY BROKE IT OPEN WITH AN
AX.  UPON ENTERING, THEY FOUND APPELLANT AND TWO COMPANIONS, APPARENTLY
ENGAGED IN OPERATING A BETTING POOL ON HORSE RACES, AND ARRESTED THEM. 
THE OFFICERS SEIZED THREE TELEPHONES, TWO ADDING MACHINES, SEVERAL
RACING FORMS AND MUCH PARAPHERNALIA COMMONLY USED IN OPERATING SUCH A
BETTING POOL.  THE STATE CONCEDES THAT THE ENTRY, SEARCH AND SEIZURE
WERE ILLEGAL. 

SALSBURG AND HIS COMPANIONS WERE BROUGHT TO TRIAL IN THE CIRCUIT
COURT OF ANNE ARUNDEL COUNTY CHARGED WITH MAKING OR SELLING A BOOK OR
POOL ON THE RESULT OF A RUNNING RACE OF HORSES IN VIOLATION OF FLACK'S
MD. ANN. CODE, 1951, ART. 27, SEC. 306.  (FN1)  BEFORE TRIAL EACH OF
THE ACCUSED MOVED TO QUASH THE WARRANT, SUPPRESS AND RETURN THE SEIZED
EVIDENCE, AND DISMISS THE PROCEEDING AGAINST HIM, ALL ON THE GROUND
THAT THE PROCEEDING DEPENDED UPON ILLEGALLY SEIZED EVIDENCE.  EACH
CLAIMED THAT THE ADMISSION OF SUCH EVIDENCE WAS PROHIBITED BY A
MARYLAND STATUTE, KNOWN AS THE BOUSE ACT, AND THAT A 1951 AMENDMENT TO
THAT ACT WHICH PURPORTED TO ALLOW THE ADMISSION OF SUCH EVIDENCE, IN
SUCH A PROSECUTION IN ANNE ARUNDEL COUNTY, WAS INVALID BECAUSE IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  (FN2) THE TRIAL COURT ADMITTED
THE EVIDENCE.  EACH OF THE ACCUSED WAS CONVICTED AND SENTENCED TO SERVE
SIX MONTHS IN THE MARYLAND HOUSE OF CORRECTION AS WELL AS TO PAY $1,000
PLUS COSTS.  THE COURT OF APPEALS OF MARYLAND AFFIRMED THE CONVICTIONS
OF SALSBURG'S COMPANIONS ON THE GROUND THAT NEITHER OF THEM COULD
COMPLAIN OF THE ILLEGALITY OF THE SEARCH OR SEIZURE BECAUSE THEY HAD NO
TITLE TO OR INTEREST IN THE PREMISES SEARCHED.  RIZZO V. MARYLAND, 201
MD. 206, 93 A.2D 280.  AS TO SALSBURG, THE TENANT OF THE PREMISES, THE
COURT OF APPEALS HEARD FURTHER ARGUMENT ON THE CONSTITUTIONALITY OF THE
1951 AMENDMENT AND THEN AFFIRMED THE TRIAL COURT.  201 MD. 212, 94 A.2D
280.  HIS CASE IS HERE ON APPEAL.  28 U.S.C. (SUPP. V) SEC. 1257(2). 

THE HISTORY OF THE BOUSE ACT IS ENLIGHTENING.  ORIGINALLY MARYLAND
COURTS FOLLOWED THE COMMON-LAW PRACTICE OF ADMITTING EVIDENCE IN
CRIMINAL PROSECUTIONS WITHOUT REGARD TO THE LEGALITY OF ITS OBTENTION. 
LAWRENCE V. MARYLAND, 103 MD. 17, 32-37, 63 A. 96, 102-104.  IN 1914,
THE DECISION IN WEEKS V. UNITED STATES, 232 U.S. 383, ANNOUNCED A
CONTRARY RULE OF PRACTICE IN THE FEDERAL COURTS.  IT HELD THAT EVIDENCE
ILLEGALLY SEIZED BY FEDERAL OFFICERS IS NOT ADMISSIBLE IN FEDERAL
PROSECUTIONS.  IN 1928, THE COURT OF APPEALS OF MARYLAND DECLINED TO
ADOPT THAT PRACTICE AND REAFFIRMED THE MARYLAND COMMON-LAW PRACTICE. 
MEISINGER V. MARYLAND, 155 MD. 195, 141 A. 536.  IN 1929, THE GENERAL
ASSEMBLY OF MARYLAND PASSED THE BOUSE ACT SUBSTANTIALLY ADOPTING THE
FEDERAL PRACTICE FOR PROSECUTIONS OF MISDEMEANORS IN THE STATE COURTS. 
(FN3)  THIS LEFT THE COMMON-LAW PRACTICE IN EFFECT IN FELONY CASES. 
MARSHALL V. MARYLAND, 182 MD. 379, 384, 35 A.2D 115, 118; DELNEGRO V.
MARYLAND, 198 MD. 80, 86, 81 A.2D 241, 244. 

IN 1935, PROSECUTIONS UNDER THE "HEALTH-NARCOTIC DRUGS" SUBTITLE OF
THE GENERAL TITLE "CRIMES AND PUNISHMENTS" WERE EXEMPTED FROM THE BOUSE
ACT.  (FN4)  IN 1947, A PROVISO WAS ADDED EXEMPTING, IN BALTIMORE
COUNTY, PROSECUTIONS FOR UNLAWFULLY CARRYING A CONCEALED WEAPON.  MD.
LAWS 1947, C. 752.  IN 1951, THAT PROVISO WAS EXTENDED TO BALTIMORE
CITY AND 13 COUNTIES, INCLUDING ANNE ARUNDEL.  MD. LAWS 1951, C. 145. 
IN THE SAME YEAR THE AMENDMENT NOW BEFORE US EXEMPTED PROSECUTIONS IN
ANNE ARUNDEL COUNTY "FOR A VIOLATION OF THE GAMBLING LAWS AS CONTAINED
IN SECTIONS 288 TO 307, INCLUSIVE, OF ARTICLE 27 OF THE ANNOTATED CODE
OF MARYLAND (1939 EDITION) NOW SECS. 303-329 OF THE 1951 EDITION, SUB
TITLE 'GAMING,' OR IN ANY LAWS AMENDING OR SUPPLEMENTING SAID SUB
TITLE."  ID., C. 704.   ALSO IN 1951 THIS EXEMPTION WAS EXTENDED TO
WICOMICO AND PRINCE GEORGE'S COUNTIES.  ID., C. 710.  (FN5) 

APPELLANT CONCEDES THAT THE STATE HAS THE LEGISLATIVE "POWER" TO
CHOOSE EITHER THE RULE WHICH EXCLUDES OR THAT WHICH ADMITS ILLEGALLY
SEIZED EVIDENCE.  HE DOES NOT ATTACK THE VALIDITY OF THE APPLICATION OF
ONE TO FELONIES AND OF THE OTHER TO MISDEMEANORS.  HE CONTENDS,
HOWEVER, THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
IS VIOLATED WHEN MARYLAND ADMITS THE ILLEGALLY SEIZED EVIDENCE IN
PROSECUTIONS FOR CERTAIN MISDEMEANORS IN CERTAIN COUNTIES, BUT EXCLUDES
IT IN PROSECUTIONS FOR THE SAME TYPE OF MISDEMEANORS IN OTHER COUNTIES
AND FOR SOMEWHAT COMPARABLE MISDEMEANORS IN THE SAME AND OTHER
COUNTIES.  HE SEES NO RATIONAL BASIS FOR THE CLASSIFICATIONS MADE IN
THE 1951 AMENDMENT. 

WHATEVER MAY BE OUR VIEW AS TO THE DESIRABILITY OF THE
CLASSIFICATIONS, WE CONCLUDE THAT THE 1951 AMENDMENT IS WITHIN THE
LIBERAL LEGISLATIVE LICENSE ALLOWED A STATE IN PRESCRIBING RULES OF
PRACTICE.  A STATE HAS ESPECIALLY WIDE DISCRETION IN PRESCRIBING
PRACTICE RELATING TO ITS POLICE POWER, AS IS THE CASE HERE. 

THE 1951 AMENDMENT ESTABLISHES NO ADDITIONAL OR DIFFERENT OFFENSES IN
ANNE ARUNDEL COUNTY.  IT DEALS ONLY WITH THE ADMISSIBILITY OF EVIDENCE
IN THE PROSECUTION OF CERTAIN MISDEMEANORS OTHERWISE ESTABLISHED BY
LAW.  RULES OF EVIDENCE, BEING PROCEDURAL IN THEIR NATURE, ARE
PECULIARLY DISCRETIONARY WITH THE LAW-MAKING AUTHORITY, ONE OF WHOSE
PRIMARY RESPONSIBILITIES IS TO PRESCRIBE PROCEDURES FOR ENFORCING ITS
LAWS.  SEVERAL STATES HAVE FOLLOWED DIAMETRICALLY OPPOSITE POLICIES AS
TO THE ADMISSION OF ILLEGALLY SEIZED EVIDENCE.  SEE APPENDIX, WOLF V.
COLORADO, 338 U.S. 25, 33-39.   SEE ALSO, ADAMS V. NEW YORK, 192 U.S.
585, 594-596.  MARYLAND SEEKS TO DERIVE SOME BENEFIT FROM EACH OF THE
POLICIES. 

APPELLANT COMPLAINS FURTHER THAT PROSECUTIONS FOR LOTTERY
MISDEMEANORS ARE SUBJECT TO THE RULE OF EXCLUSION OF THE BOUSE ACT,
WHILE THOSE FOR OPERATING GAMBLING POOLS ARE EXEMPT.  HE COMPLAINS ALSO
THAT PROSECUTIONS FOR VIOLATIONS OF COUNTY GAMBLING RESTRICTIONS ARE
SUBJECT TO THE ACT, WHILE VIOLATIONS OF COMPARABLE STATE GAMBLING
RESTRICTIONS ARE NOT.  IN OUR OPINION SUCH DIFFERENCES ARE NOT FATAL TO
THE LEGISLATIVE SCHEME.  WE DO NOT SIT AS A SUPERLEGISLATURE OR A
CENSOR.  "TO BE ABLE TO FIND FAULT WITH A LAW IS NOT TO DEMONSTRATE ITS
INVALIDITY.  IT MAY SEEM UNJUST AND OPPRESSIVE, YET BE FREE FROM
JUDICIAL INTERFERENCE.  THE PROBLEMS OF GOVERNMENT ARE PRACTICAL ONES
AND MAY JUSTIFY, IF THEY DO NOT REQUIRE, ROUGH ACCOMMODATIONS -
ILLOGICAL, IT MAY BE, AND UNSCIENTIFIC."  METROPOLIS THEATRE CO. V.
CHICAGO, 228 U.S. 61, 69-70.  SEE ALSO, DOMINION HOTEL V. ARIZONA, 249
U.S. 265, 268.  CF.  JOHNSON V. MARYLAND, 193 MD. 136, 66 A.2D 504. 

WE FIND LITTLE SUBSTANCE TO APPELLANT'S CLAIM THAT DISTINCTIONS BASED
ON COUNTY AREAS ARE NECESSARILY SO UNREASONABLE AS TO DEPRIVE HIM OF
THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FEDERAL
CONSTITUTION.  THE EQUAL PROTECTION CLAUSE RELATES TO EQUALITY BETWEEN
PERSONS AS SUCH RATHER THAN BETWEEN AREAS.  THIS WAS ESTABLISHED LONG
AGO IN A DECISION WHICH UPHELD A STATUTE OF MISSOURI REQUIRING THAT, IN
THE CITY OF ST. LOUIS AND FOUR COUNTIES, APPEALS BE MADE TO THE ST.
LOUIS COURT OF APPEALS, WHEREAS APPEALS MADE ELSEWHERE IN THAT STATE
MUST BE DIRECTED TO THE SUPREME COURT OF MISSOURI.  SPEAKING FOR THE
COURT, JUSTICE BRADLEY SAID: 

"THERE IS NOTHING IN THE CONSTITUTION TO PREVENT ANY STATE FROM
ADOPTING ANY SYSTEM OF LAWS OR JUDICATURE IT SEES FIT FOR ALL OR ANY
PART OF ITS TERRITORY.  IF THE STATE OF NEW YORK, FOR EXAMPLE, SHOULD
SEE FIT TO ADOPT THE CIVIL LAW AND ITS METHOD OF PROCEDURE FOR NEW YORK
CITY AND THE SURROUNDING COUNTIES, AND THE COMMON LAW AND ITS METHOD OF
PROCEDURE FOR THE REST OF THE STATE, THERE IS NOTHING IN THE
CONSTITUTION OF THE UNITED STATES TO PREVENT ITS DOING SO.  THIS WOULD
NOT, OF ITSELF, WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT, BE A
DENIAL TO ANY PERSON OF THE EQUAL PROTECTION OF THE LAWS  ...  .  IT
MEANS THAT NO PERSON OR CLASS OF PERSONS SHALL BE DENIED THE SAME
PROTECTION OF THE LAWS WHICH IS ENJOYED BY OTHER PERSONS OR OTHER
CLASSES IN THE SAME PLACE AND UNDER LIKE CIRCUMSTANCES."  MISSOURI V.
LEWIS, 101 U.S. 22, 31.  (FN6) 

THERE SEEMS TO BE NO DOUBT THAT MARYLAND COULD VALIDLY GRANT HOME
RULE TO EACH OF ITS 23 COUNTIES AND TO THE CITY OF BALTIMORE TO
DETERMINE THIS RULE OF EVIDENCE BY LOCAL OPTION.  (FN7)  IT IS EQUALLY
CLEAR, ALTHOUGH LESS USUAL, THAT A STATE LEGISLATURE MAY ITSELF
DETERMINE SUCH AN ISSUE FOR EACH OF ITS LOCAL SUBDIVISIONS, HAVING IN
MIND THE NEEDS AND DESIRES OF EACH.  TERRITORIAL UNIFORMITY IS NOT A
CONSTITUTIONAL REQUISITE.  OCAMPO V. UNITED STATES, 234 U.S. 91, 98
99. 

MARYLAND HAS FOLLOWED A POLICY OF THUS LEGISLATING, THROUGH ITS
GENERAL ASSEMBLY, UPON MANY MATTERS OF LOCAL CONCERN, INCLUDING THE
PRESCRIPTION OF DIFFERENT SUBSTANTIVE OFFENSES IN DIFFERENT COUNTIES. 
(FN8)  THE CUMBERSOMENESS OF SUCH CENTRALLY ENACTED LEGISLATION AS
COMPARED WITH THE VARIATIONS WHICH MAY RESULT FROM HOME RULE IS A
MATTER FOR LEGISLATIVE DISCRETION, NOT JUDICIAL SUPERVISION, EXCEPT
WHERE THERE IS A CLEAR CONFLICT WITH CONSTITUTIONAL LIMITATIONS.  WE
FIND NO SUCH CONFLICT HERE. 

THE PRESUMPTION OF REASONABLENESS IS WITH THE STATE.  (FN9)  WHILE
THE BURDEN OF ESTABLISHING THE REASONABLENESS OF THE LEGISLATION WAS
NOT ON HIM, THE ATTORNEY GENERAL OF MARYLAND HAS SUGGESTED HERE SEVERAL
CONSIDERATIONS BEARING APPROPRIATELY UPON THE ACTION OF THE GENERAL
ASSEMBLY.  MARYLAND LIES LARGELY BETWEEN THE METROPOLITAN CENTERS OF
BALTIMORE, IN MARYLAND, AND OF WASHINGTON, IN THE DISTRICT OF
COLUMBIA.  BETWEEN THEM ARE ANNE ARUNDEL COUNTY, ADJOINING BALTIMORE,
AND PRINCE GEORGE'S COUNTY, ADJOINING WASHINGTON.  IN ANNE ARUNDEL LIES
ANNAPOLIS, THE CAPITAL OF THE STATE, AND CONSIDERABLE RURAL TERRITORY. 
THOSE LOCATIONS SUGGEST THAT, IN MATTERS RELATED TO CONCENTRATIONS OF
POPULATION, THE STATE GOVERNMENT MIGHT WELL FIND REASON TO PRESCRIBE,
AT LEAST ON AN EXPERIMENTAL BASIS, SUBSTANTIVE RESTRICTIONS AND
VARIATIONS IN PROCEDURE THAT WOULD DIFFER FROM THOSE ELSEWHERE IN THE
STATE.  CRIMINAL LAW PROVIDES A LONG-ESTABLISHED FIELD FOR SUCH
LEGISLATIVE DISCRETION.  (FN10)  IN THIS CONNECTION, THE ATTORNEY
GENERAL REFERRED SPECIFICALLY TO AN INCREASE IN GAMBLING ACTIVITY IN
ANNE ARUNDEL COUNTY WHICH HE ATTRIBUTED IN PART TO A POLICY ADOPTED BY
THE CRIMINAL COURT OF BALTIMORE IN IMPOSING MAXIMUM PRISON SENTENCES
FOR GAMBLING OFFENSES, THUS TENDING TO DRIVE GAMBLING OPERATIONS INTO
ADJOINING AREAS.  HE SUGGESTED, AS A JUSTIFICATION FOR A LEGISLATIVE
DISTINCTION BETWEEN PROSECUTIONS FOR VIOLATIONS OF STATE LOTTERY LAWS
AND OF THE GAMBLING LAWS HERE SPECIFIED, THAT THE FORMER WERE OF A MORE
READILY DETECTED AND EASILY PROVED CHARACTER THAN THE LATTER. 

WE FIND NO MERIT IN THE SUGGESTION OF APPELLANT THAT THE 1951
AMENDMENT TO THE BOUSE ACT AFFIRMATIVELY SANCTIONS ILLEGAL SEARCHES AND
SEIZURES IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  IF THE STATUTE WERE SO INTERPRETED SUCH A QUESTION MIGHT
ARISE.  (FN11) HOWEVER, THE COURT OF APPEALS OF MARYLAND HAS NOT SO
INTERPRETED IT AND NOTHING IN ITS TEXT SUGGESTS APPROVAL OF ILLEGAL
SEARCHES AND SEIZURES.  THE ACT OFFERS TO OFFENDING SEARCHERS AND
SEIZURES NO PROTECTION OR IMMUNITY FROM ANYTHING - BE IT CIVIL
LIABILITY, CRIMINAL LIABILITY OR DISCIPLINARY ACTION. 

WE SUSTAIN THE VALIDITY OF THE 1951 AMENDMENT TO THE BOUSE ACT AND
THE JUDGMENT OF THE COURT OF APPEALS OF MARYLAND, ACCORDINGLY, IS
AFFIRMED. 

FN1  IN THE WARRANT WHICH STARTED THIS PROCEEDING BEFORE A JUSTICE OF
THE PEACE, THE SECTION WAS IDENTIFIED AS ART. 27, SEC. 291, FLACK'S MD.
ANN. CODE, 1939. 

FN2  AT THE TIME OF THE TRIAL, THE BOUSE ACT, INCLUDING AMENDMENTS,
APPEARED AS FOLLOWS IN ART. 35, SEC. 5, FLACK'S MD. ANN. CODE, 1951: 
"NO EVIDENCE IN THE TRIAL OF MISDEMEANORS SHALL BE DEEMED ADMISSIBLE
WHERE THE SAME SHALL HAVE BEEN PROCURED BY, THROUGH, OR IN CONSEQUENCE
OF ANY ILLEGAL SEARCH OR SEIZURE OR OF ANY SEARCH AND SEIZURE
PROHIBITED BY THE DECLARATION OF RIGHTS OF THIS STATE; NOR SHALL ANY
EVIDENCE IN SUCH CASES BE ADMISSIBLE IF PROCURED BY, THROUGH OR IN
CONSEQUENCE OF A SEARCH AND SEIZURE, THE EFFECT OF THE ADMISSION OF
WHICH WOULD BE TO COMPEL ONE TO GIVE EVIDENCE AGAINST HIMSELF IN A
CRIMINAL CASE; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION SHALL
PROHIBIT THE USE OF SUCH EVIDENCE IN BALTIMORE COUNTY, BALTIMORE CITY,
ANNE ARUNDEL, CAROLINE, CARROLL, CECIL, FREDERICK, HARFORD, KENT,
PRINCE GEORGE'S, QUEEN ANNE'S, TALBOT, WASHINGTON, WICOMICO AND
WORCESTER COUNTIES, IN THE PROSECUTION OF ANY PERSON FOR UNLAWFULLY
CARRYING A CONCEALED WEAPON.  PROVIDED, FURTHER, THAT NOTHING IN THIS
WICOMICO AND PRINCE GEORGE'S COUNTIES IN THE PROSECUTION OF ANY PERSON
FOR A VIOLATION OF THE GAMBLING LAWS AS CONTAINED IN SECTIONS 303-329,
INCLUSIVE, OF ARTICLE 27, SUB-TITLE 'GAMING,' OR IN ANY LAWS AMENDING
OR SUPPLEMENTING SAID SUB-TITLE." 

FN3  THE ORIGINAL BOUSE ACT, MD. LAWS 1929, C. 194, CONSISTED OF ONLY
THAT PART OF THE FIRST SENTENCE WHICH PROCEDES THE FIRST PROVISO IN
ART. 35, SEC. 5, FLACK'S MD. ANN. CODE, 1951.  SEE NOTE 2, SUPRA. 

FN4  MD. LAWS 1935, C. 59, NOW ART. 27, SEC. 368, OF FLACK'S MD. ANN.
CODE, 1951. 

FN5  THIS TREND HAS CONTINUED.  IN 1952, THE EXEMPTION AS TO
PROSECUTIONS FOR UNLAWFULLY CARRYING A CONCEALED WEAPON WAS MADE
STATEWIDE.  MD. LAWS 1952, C. 59.  IN 1953, THE EXEMPTION AS TO
PROSECUTIONS UNDER THE ABOVE-SPECIFIED GAMBLING LAWS HAS BEEN EXTENDED
TO WORCESTER, HOWARD AND CECIL COUNTIES.  MD. LAWS 1953, CC. 84, 419. 
FINALLY, PROSECUTIONS IN WICOMICO COUNTY, UNDER CERTAIN ALCOHOLIC
BEVERAGE LAWS, HAVE BEEN EXEMPTED.  ID., C. 581. 

FN6  "THE FOURTEENTH AMENDMENT DOES NOT PROFESS TO SECURE TO ALL
PERSONS IN THE UNITED STATES THE BENEFIT OF THE SAME LAWS AND THE SAME
REMEDIES.  GREAT DIVERSITIES IN THESE RESPECTS MAY EXIST IN TWO STATES
SEPARATED ONLY BY AN IMAGINARY LINE.  ON ONE SIDE OF THIS LINE THERE
MAY BE A RIGHT OF TRIAL BY JURY, AND ON THE OTHER SIDE NO SUCH RIGHT. 
EACH STATE PRESCRIBES ITS OWN MODES OF JUDICIAL PROCEEDING.  IF
DIVERSITIES OF LAWS AND JUDICIAL PROCEEDINGS MAY EXIST IN THE SEVERAL
STATES WITHOUT VIOLATING THE EQUALITY CLAUSE IN THE FOURTEENTH
AMENDMENT, THERE IS NO SOLID REASON WHY THERE MAY NOT BE SUCH
DIVERSITIES IN DIFFERENT PARTS OF THE SAME STATE."  ID., AT 31.  SEE
ALSO, MALLETT V. NORTH CAROLINA, 181 U.S. 589, 597-599; HAYES V.
MISSOURI, 120 U.S. 68, 72. 

FN7  E.G., AS TO LOCAL OPTION IN RELATION TO INTOXICATING LIQUOR, SEE
LLOYD V. DOLLISON, 194 U.S. 445; RIPPEY V. TEXAS, 193 U.S. 504; AND SEE
FT. SMITH LIGHT CO. V. BOARD OF IMPROVEMENT, 274 U.S. 387, 391. 

FN8  WITHOUT APPRAISING THEIR VALIDITY, BUT AS ILLUSTRATING MARYLAND
PRACTICE, WE FIND FLACK'S MD. ANN. CODE, 1951, FULL OF SUCH EXAMPLES. 
ART. 2B - DIFFERING REQUIREMENTS AS TO SALES OF ALCOHOLIC BEVERAGES IN
VARIOUS COUNTIES AND CITIES; ART. 27, SEC. 136 - ONE COUNTY IS EXEMPTED
FROM A GENERAL PROHIBITION AGAINST INTERFERENCE WITH WATER SUPPLY; SEC.
146 - DEALS WITH THE EFFECT OF DISORDERLY CONDUCT IN THREE COUNTIES;
SEC. 545 - EXEMPTS TWO COUNTIES FROM CERTAIN PROVISIONS AGAINST PLACING
TACKS, BROKEN GLASS, ETC., ON HIGHWAYS; SEC. 566 - MAKES SPECIAL
PROVISIONS AS TO JUNK YARDS IN FIVE COUNTIES; SECS. 578-610B -
PRESCRIBE A VARIETY OF SABBATH-BREAKING PROVISIONS FOR SEVERAL COUNTIES
AND MUNICIPALITIES; ART. 51, SEC. 7 - GRANTS A RIGHT OF JURY SERVICE TO
WOMEN, EXCEPT IN TEN COUNTIES; SEC. 9 - PROVIDES VARYING METHODS OF
SELECTING JURY PANELS IN SEVERAL COUNTIES.  "IT HAS LONG BEEN THE
PRACTICE OF THE MARYLAND LEGISLATURE EITHER TO ENACT LOCAL LAWS OR TO
EXEMPT PARTICULAR COUNTIES FROM THE OPERATION OF GENERAL LAWS." 
NEUENSCHWANDER V. WASHINGTON SUBURBAN SANITARY COMMISSION, 187 MD. 67,
80, 48 A.2D 593, 600; STEVENS V. MARYLAND, 89 MD. 669, 674, 43 A. 929,
931.  CF. MARYLAND COAL & REALTY CO. V. BUREAU OF MINES, 193 MD. 627,
69 A.2D 471. 

FN9  "  ...  IT IS  ...  A MAXIM OF CONSTITUTIONAL LAW THAT A
LEGISLATURE IS PRESUMED TO HAVE ACTED WITHIN CONSTITUTIONAL LIMITS,
UPON FULL KNOWLEDGE OF THE FACTS, AND WITH THE PURPOSE OF PROMOTING THE
INTERESTS OF THE PEOPLE AS A WHOLE, AND COURTS WILL NOT LIGHTLY HOLD
THAT AN ACT DULY PASSED BY THE LEGISLATURE WAS ONE IN THE ENACTMENT OF
WHICH IT HAS TRANSCENDED ITS POWER."  ATCHISON, T.&S.F.R. CO. V.
MATTHEWS, 174 U.S. 96, 104.  "A STATUTORY DISCRIMINATION WILL NOT BE
SET ASIDE AS THE DENIAL OF EQUAL PROTECTION OF THE LAWS IF ANY STATE OF
FACTS REASONABLY MAY BE CONCEIVED TO JUSTIFY IT."  METROPOLITAN
CASUALTY INS. CO. V. BROWNELL, 294 U.S. 580, 584.  SEE ALSO, MIDDLETON
V. TEXAS POWER & LIGHT CO., 249 U.S. 152, 157-158; LINDSLEY V. NATURAL
CARBONIC GAS CO., 220 U.S. 61, 78-79. 

FN10  METROPOLITAN CASUALTY INS. CO. V. BROWNELL, SUPRA.  THE STATE
IS NOT BOUND "TO STRIKE AT ALL EVILS AT THE SAME TIME OR IN THE SAME
WAY."  SEMLER V. OREGON DENTAL EXAMINERS, 294 U.S. 608, 610. 

FN11  "  ...  WE HAVE NO HESITATION IN SAYING THAT WERE A STATE
AFFIRMATIVELY TO SANCTION SUCH POLICE INCURSION INTO PRIVACY IT WOULD
RUN COUNTER TO THE GUARANTY OF THE FOURTEENTH AMENDMENT."  WOLF V.
COLORADO, 338 U.S. 25, 28. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AM STILL OF THE VIEW, EXPRESSED ON OTHER OCCASIONS (SEE WOLF V.
COLORADO, 338 U.S. 25, 40-41; SCHWARTZ V. TEXAS, 344 U.S. 199, 205),
THAT THE FOURTEENTH AND THE FOURTH AMENDMENTS PRECLUDE THE USE IN ANY
CRIMINAL PROSECUTION OF EVIDENCE OBTAINED BY THE LAWLESS ACTION OF
POLICE OFFICERS WHO, IN DISREGARD OF CONSTITUTIONAL SAFEGUARDS, RANSACK
HOUSES OR PLACES OF BUSINESS WITHOUT SEARCH WARRANTS ISSUED UNDER THE
STRICT SURVEILLANCE WHICH THE CONSTITUTION COMMANDS. 
..END :



UNITED STATES V. MORGAN 346 U.S. 502 


NO. 31.  ARGUED OCTOBER 19, 1953 - DECIDED JANUARY 4, 1954 - 202 F.2D
67, AFFIRMED. 


BY A PROCEEDING IN THE NATURE OF CORAM NOBIS, RESPONDENT SOUGHT TO
HAVE A FEDERAL DISTRICT COURT SET ASIDE HIS CONVICTION AND SENTENCE IN
THAT COURT FOR A FEDERAL CRIME, THOUGH HE HAD SERVED THE FULL TERM FOR
WHICH HE HAD BEEN SENTENCED.  HE CLAIMED THAT HIS CONVICTION WAS
INVALID BECAUSE OF DENIAL OF HIS CONSTITUTIONAL RIGHT TO COUNSEL AT HIS
TRIAL.  HE HAD SINCE BEEN CONVICTED IN A STATE COURT OF ANOTHER CRIME,
HAD BEEN SENTENCED TO A LONGER TERM AS A SECOND OFFENDER BECAUSE OF HIS
PRIOR FEDERAL CONVICTION, AND WAS STILL SERVING THE STATE SENTENCE. 
HELD: UNDER THE ALL-WRITS SECTION, 28 U.S.C. SEC. 1651(A), THE FEDERAL
DISTRICT COURT HAD POWER TO ISSUE A WRIT OF ERROR CORAM NOBIS; IT HAD
POWER TO VACATE ITS JUDGMENT OF CONVICTION AND SENTENCE; AND RESPONDENT
IS ENTITLED TO AN OPPORTUNITY TO SHOW THAT HIS FEDERAL CONVICTION WAS
INVALID.  PP. 503-513. 

1.  THOUGH RESPONDENT'S PAPERS DISCLOSE SOME UNCERTAINTY AS TO HIS
CHOICE OF A REMEDY, THIS COURT TREATS THEM AS ADEQUATELY PRESENTING A
MOTION IN THE NATURE OF A WRIT OF ERROR CORAM NOBIS ENABLING THE TRIAL
COURT TO PROPERLY EXERCISE ITS JURISDICTION.  P. 505. 

2.  ISSUANCE BY A FEDERAL DISTRICT COURT OF A WRIT OF ERROR CORAM
NOBIS IS AUTHORIZED BY THE ALL-WRITS SECTION, 28 U.S.C. SEC. 1651(A);
AND POWER TO ISSUE THE WRIT COMPREHENDS THE POWER OF THE DISTRICT COURT
TO GRANT THIS MOTION IN THE NATURE OF CORAM NOBIS.  PP. 506-510. 

3.  SUCH A MOTION IS A STEP IN THE CRIMINAL CASE; AND RULE 60(B) OF
THE FEDERAL RULES OF CIVIL PROCEDURE, EXPRESSLY ABOLISHING THE WRIT OF
ERROR CORAM NOBIS IN CIVIL CASES, IS INAPPLICABLE.  P. 505, N. 4. 

4.  RULE 35 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, ALLOWING
CORRECTION OF "AN ILLEGAL SENTENCE AT ANY TIME," IS INAPPLICABLE.  PP.
505-506. 

5.  THE PROVISION OF 28 U.S.C. SEC. 2255 THAT A PRISONER "IN CUSTODY"
MAY AT ANY TIME MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE IT,
IF "IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE UNITED STATES,"
DOES NOT SUPERSEDE ALL OTHER REMEDIES IN THE NATURE OF CORAM NOBIS. 
PP. 510-511. 

6.  CONTINUATION OF LITIGATION, AFTER FINAL JUDGMENT AND AFTER
EXHAUSTION OR WAIVER OF ANY STATUTORY RIGHT OF REVIEW, SHOULD BE
ALLOWED THROUGH THE EXTRAORDINARY REMEDY OF CORAM NOBIS ONLY UNDER
CIRCUMSTANCES COMPELLING SUCH ACTION TO ACHIEVE JUSTICE.  P. 511. 

7.  WHERE IT CANNOT BE DEDUCED FROM THE RECORD WHETHER COUNSEL WAS
PROPERLY WAIVED, WHERE NO OTHER REMEDY IS AVAILABLE, AND WHERE SOUND
REASONS EXIST FOR FAILURE TO SEEK APPROPRIATE EARLIER RELIEF, A MOTION
IN THE NATURE OF A WRIT OF CORAM NOBIS MUST BE HEARD BY THE FEDERAL
TRIAL COURT.  PP. 511-512. 

8.  SINCE THE RESULTS OF THE CONVICTION MAY PERSIST THOUGH THE
SENTENCE HAS BEEN SERVED AND THE POWER TO REMEDY AN INVALID SENTENCE
EXISTS, RESPONDENT IS ENTITLED TO AN OPPORTUNITY TO ATTEMPT TO SHOW
THAT HIS CONVICTION WAS INVALID.  PP. 512-513. 

UNITED STATES V. MORGAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN RESPONDENT'S PROCEEDING IN THE NATURE OF CORAM NOBIS TO SET ASIDE
HIS CONVICTION AND SENTENCE, THE FEDERAL DISTRICT COURT DENIED RELIEF. 
THE COURT OF APPEALS REVERSED.  202 F.2D 67.  THIS COURT GRANTED
CERTIORARI.  345 U.S. 974.  AFFIRMED, P. 513. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS REVIEW ON CERTIORARI REQUIRES US TO DECIDE WHETHER A UNITED
STATES DISTRICT COURT HAS POWER TO VACATE ITS JUDGMENT OF CONVICTION
AND SENTENCE AFTER THE EXPIRATION OF THE FULL TERM OF SERVICE. 

ON DECEMBER 18, 1939, RESPONDENT PLEADED GUILTY ON A FEDERAL CHARGE,
IN THE NORTHERN DISTRICT OF NEW YORK, AND WAS GIVEN A FOUR-YEAR
SENTENCE WHICH HE SERVED.  THEREAFTER, IN 1950, HE WAS CONVICTED BY A
NEW YORK COURT ON A STATE CHARGE, SENTENCED TO A LONGER TERM AS A
SECOND OFFENDER BECAUSE OF THE PRIOR FEDERAL CONVICTION, (FN1) AND IS
NOW INCARCERATED IN A STATE PRISON. 

AS COURTS OF NEW YORK STATE WILL NOT REVIEW THE JUDGMENTS OF OTHER
JURISDICTIONS ON HABEAS CORPUS OR CORAM NOBIS, PEOPLE V. MCCULLOUGH,
300 N.Y. 107, 110, 89 N.E.2D 335, 336-337, RESPONDENT FILED AN
APPLICATION FOR A WRIT OF ERROR CORAM NOBIS AND GAVE NOTICE OF A MOTION
FOR THE WRIT IN THE UNITED STATES DISTRICT COURT WHERE HIS FIRST
SENTENCE WAS RECEIVED.  BOTH SOUGHT AN ORDER VOIDING THE JUDGMENT OF
CONVICTION.  THE GROUND WAS VIOLATION OF HIS CONSTITUTIONAL RIGHTS
THROUGH FAILURE, WITHOUT HIS COMPETENT WAIVER, TO FURNISH HIM COUNSEL. 
JOHNSON V. ZERBST, 304 U.S. 458.  THE DISTRICT COURT IN AN UNREPORTED
DECISION TREATED THE PROCEEDING AS A MOTION UNDER 28 U.S.C.  SEC. 2255
(FN2) AND REFUSED RELIEF BECAUSE IT HAD NO JURISDICTION AS THE
APPLICANT WAS NO LONGER IN CUSTODY UNDER ITS SENTENCE, CITING UNITED
STATES V. LAVELLE, 194 F.2D 202, A CONTROLLING AUTHORITY ON THAT
POINT.  ON APPEAL, THE COURT OF APPEALS REVERSED.  IT HELD THAT 28
U.S.C. SEC. 2255 DID NOT SUPERSEDE "ALL OTHER REMEDIES WHICH COULD BE
INVOKED IN THE NATURE OF THE COMMON LAW WRIT OF ERROR CORAM NOBIS."  AS
IT CONSIDERED THAT THE REMEDY SOUGHT WAS OF THAT KIND AND THE
APPLICATION JUSTIFIED A HEARING BECAUSE THE ERROR ALLEGED WAS "OF
FUNDAMENTAL CHARACTER," THE COURT OF APPEALS REVERSED AND, WITHOUT
PASSING UPON THE SUFFICIENCY OF THE ALLEGATIONS, DIRECTED REMAND FOR
FURTHER PROCEEDINGS.  UNITED STATES V. MORGAN, 202 F.2D 67.  DEEMING
THE DECISION TO CONFLICT WITH UNITED STATES V. KERSCHMAN, 201 F.2D 682,
WE GRANTED CERTIORARI.  345 U.S. 974. 

THE FOREGOING SUMMARY OF STEPS DISCLOSES RESPONDENT'S UNCERTAINTY IN
RESPECT TO CHOICE OF REMEDY.  THE PAPERS ARE LABELED AS THOUGH THEY
SOUGHT A COMMON-LAW WRIT OF ERROR CORAM NOBIS BUT THE NOTICE OF THE
MOTION INDICATES THAT AN ORDER VOIDING THE JUDGMENT IS SOUGHT.  IN
BEHALF OF THE UNFORTUNATES, FEDERAL COURTS SHOULD ACT IN DOING JUSTICE
IF THE RECORD MAKES PLAIN A RIGHT TO RELIEF.  (FN3)  WE THINK A BELATED
EFFORT TO SET ASIDE THE CONVICTION AND SENTENCE IN THE FEDERAL CRIMINAL
CASE IS SHOWN.  WE THEREFORE TREAT THE RECORD AS ADEQUATELY PRESENTING
A MOTION IN THE NATURE OF A WRIT OF ERROR CORAM NOBIS ENABLING THE
TRIAL COURT TO PROPERLY EXERCISE ITS JURISDICTION.  ADAMS V. MCCANN,
317 U.S. 269, 272.  (FN4)  SO TREATING THE MOTION, RULE 35, FED. RULES
CRIM.  PROC., ALLOWING THE CORRECTION OF "AN ILLEGAL SENTENCE AT ANY
TIME" IS INAPPLICABLE.  SENTENCES SUBJECT TO CORRECTION UNDER THAT RULE
ARE THOSE THAT THE JUDGMENT OF CONVICTION DID NOT AUTHORIZE.  (FN5) 

SINCE THIS MOTION IN THE NATURE OF THE ANCIENT WRIT OF CORAM NOBIS IS
NOT SPECIFICALLY AUTHORIZED BY ANY STATUTE ENACTED BY CONGRESS, THE
POWER TO GRANT SUCH RELIEF, IF IT EXISTS, MUST COME FROM THE ALL-WRITS
JUDICIARY ACT OF 1789 (FN7) AND ITS SUBSTANCE PERSISTED THROUGH THE
REVISED STATUTES, SEC. 716, AND THE JUDICIAL CODE, SEC. 262, TO ITS
PRESENT FORM UPHOLDING THE JUDICIAL POWER TO ATTAIN JUSTICE FOR SUITORS
THROUGH PROCEDURAL FORMS "AGREEABLE TO THE USAGES AND PRINCIPLES OF
LAW."  (FN8)  IF THERE IS POWER GRANTED TO ISSUE WRITS OF CORAM NOBIS
BY THE ALL-WRITS SECTION, WE HOLD IT WOULD COMPREHEND THE POWER FOR THE
DISTRICT COURT TO TAKE COGNIZANCE OF THIS MOTION IN THE NATURE OF A
CORAM NOBIS.  SEE NOTE 4, SUPRA.  TO MOVE BY MOTION INSTEAD OF BY WRIT
IS PURELY PROCEDURAL.  THE QUESTION THEN IS WHETHER THE ALL-WRITS

THE WRIT OF CORAM NOBIS WAS AVAILABLE AT COMMON LAW TO CORRECT ERRORS
OF FACT.  (FN9)  IT WAS ALLOWED WITHOUT LIMITATION OF TIME FOR FACTS
THAT AFFECT THE "VALIDITY AND REGULARITY" OF THE JUDGMENT, (FN10) AND
WAS USED IN BOTH CIVIL AND CRIMINAL CASES.  (FN11)  WHILE THE OCCASIONS
FOR ITS USE WERE INFREQUENT, NO ONE DOUBTS ITS AVAILABILITY AT COMMON
LAW.  (FN12)  CORAM NOBIS HAS HAD A CONTINUOUS ALTHOUGH LIMITED USE
ALSO IN OUR STATES.  (FN13)  ALTHOUGH THE SCOPE OF THE REMEDY AT COMMON
LAW IS OFTEN DESCRIBED BY REFERENCES TO THE INSTANCES SPECIFIED BY
TIDD'S PRACTICE, SEE NOTE 9, SUPRA, ITS USE HAS BEEN BY NO MEANS SO
LIMITED.  THE HOUSE OF LORDS IN 1844 TOOK COGNIZANCE OF AN OBJECTION
THROUGH THE WRIT BASED ON A FAILURE PROPERLY TO SWEAR WITNESSES.  SEE
THE O'CONNELL CASE, NOTE 11, SUPRA.  IT HAS BEEN USED, IN THE UNITED
STATES, WITH AND WITHOUT STATUTORY AUTHORITY BUT ALWAYS WITH REFERENCE
TO ITS COMMON-LAW SCOPE - FOR EXAMPLE, TO INQUIRE AS TO THE
IMPRISONMENT OF A SLAVE NOT SUBJECT TO IMPRISONMENT, INSANITY OF A
DEFENDANT, A CONVICTION ON A GUILTY PLEA THROUGH THE COERCION OF FEAR
OF MOB VIOLENCE, FAILURE TO ADVISE OF RIGHT TO COUNSEL.  (FN14)  AN
INTERESTING INSTANCE OF THE USE OF CORAM NOBIS BY THE COURT OF ERRORS
OF NEW YORK IS FOUND IN DAVIS V. PACKARD, 8 PET. 312.  IT WAS USED BY
THE COURT OF ERRORS, AND APPROVED BY THIS COURT, TO CORRECT AN ERROR
"OF FACT NOT APPARENT ON THE FACE OF THE RECORD" IN THE TRIAL COURT, TO
WIT, THE FACT THAT MR. DAVIS WAS CONSUL-GENERAL OF THE KING OF SAXONY
AND THEREFORE EXEMPT FROM SUIT IN THE STATE COURT. 

THIS COURT DISCUSSED THE APPLICABILITY OF A MOTION IN FEDERAL COURTS
IN THE NATURE OF CORAM NOBIS IN UNITED STATES V. MAYER, 235 U.S. 55,
67.  THERE A CONVICTED DEFENDANT ALLEGED HE DISCOVERED THROUGH NO FAULT
OF HIS, ONLY AFTER THE END OF THE TERM IN WHICH HE WAS CONVICTED,
MISCONDUCT OF AN ASSISTANT UNITED STATES ATTORNEY AND CONCEALED BIAS OF
A JUROR AGAINST HIM, THE DEFENDANT.  THIS COURT REFUSED TO DIRECT
CONSIDERATION OF THE MOTION AFTER THE TERM EXPIRED BECAUSE THE REMEDY,
IF ANY, WAS BY WRIT OF ERROR OR MOTION FOR NEW TRIAL.  AS IT WAS NOT
APPLICABLE IN THE CIRCUMSTANCES OF THE MAYER CASE, THIS COURT REFUSED
TO SAY WHETHER A MOTION CORAM NOBIS WOULD EVER LIE IN FEDERAL COURTS. 
(FN15)  THIS COURT HAS APPROVED CORRECTION OF CLERICAL ERRORS AFTER THE
TERM.  WETMORE V. KARRICK, 205 U.S. 141, 154.  HOWEVER, WE HAVE NOT
HELD THAT THE WRIT OF CORAM NOBIS OR A MOTION OF THAT NATURE WAS
AVAILABLE IN THE FEDERAL COURTS. 

IN OTHER FEDERAL COURTS THAN OURS, THERE HAS BEEN A DIFFERENCE OF
OPINION AS TO THE AVAILABILITY OF THE REMEDY.  CHIEF JUSTICE MARSHALL
IN STRODE V. THE STAFFORD JUSTICES, 1 BROCK.  162, 23 FED. CAS. 236,
OVERRULED AN OBJECTION TO A WRIT OF ERROR CORAM NOBIS TO SET ASIDE A
FOURTEEN-YEAR-OLD JUDGMENT BECAUSE OF THE DEATH OF ONE PARTY PRIOR TO
ITS RENDITION.  IN EXPLICATION, THE CHIEF JUSTICE POINTED OUT THAT THE
JUDICIARY ACT OF 1789, 1 STAT. 84, SEC. 22, LIMITED TO FIVE YEARS THE
BRINGING OF ANY WRIT OF ERROR AND FORBADE IT "FOR ANY ERROR IN FACT." 
IN ALLOWING THE CORAM NOBIS, HE HELD THAT THE SECTION SHOWED THE WRIT
OF ERROR REFERRED TO WAS A WRIT ON APPEAL AND THEREFORE THE ERROR IN
FACT COULD NOT BE EXAMINED EXCEPT BY CORAM NOBIS.  THE COURTS OF
APPEALS FOR THE SIXTH AND NINTH CIRCUITS HAVE HELD THE MOTION AVAILABLE
FOR CLAIMS OF INSANITY.  (FN16)  THE THIRD AND FOURTH CIRCUITS HAVE
MADE SIMILAR RULINGS IN CASES SIMILAR TO THIS.  (FN17)  THE FIFTH
CIRCUIT REMANDED FOR INQUIRY INTO A MOVANT'S ALLEGATION UPON A SIMILAR
MOTION THAT WITNESSES AGAINST HIM HAD BEEN COERCED BY OFFICERS TO
COMMIT PERJURY IN TESTIFYING AGAINST HIM.  (FN18)  IN MANY OTHER CASES
FEDERAL COURTS HAVE TAKEN COGNIZANCE OF MOTIONS IN THE NATURE OF CORAM
NOBIS BUT DENIED THEM BECAUSE THE CIRCUMSTANCES DID NOT MAKE CORAM
NOBIS AVAILABLE.  (FN19)  THERE ARE FEW CASES WHERE THE POWER TO
CONSIDER A MOTION FOR CORAM NOBIS RELIEF HAS BEEN DENIED.  (FN20) 

THE CONTENTION IS MADE THAT SEC. 2255 OF TITLE 28, U.S.C., PROVIDING
THAT A PRISONER "IN CUSTODY" MAY AT ANY TIME MOVE THE COURT WHICH
IMPOSED THE SENTENCE TO VACATE IT, IF "IN VIOLATION OF THE CONSTITUTION
OR LAWS OF THE UNITED STATES," SHOULD BE CONSTRUED TO COVER THE ENTIRE
FIELD OF REMEDIES IN THE NATURE OF CORAM NOBIS IN FEDERAL COURTS.  WE
SEE NO COMPELLING REASON TO REACH THAT CONCLUSION.  IN UNITED STATES V.
HAYMAN, 342 U.S. 205, 219, WE STATED THE PURPOSE OF SEC. 2255 WAS "TO
MEET PRACTICAL DIFFICULTIES" IN THE ADMINISTRATION OF FEDERAL HABEAS
CORPUS JURISDICTION.  WE ADDED:  "NOWHERE IN THE HISTORY OF SECTION
2255 DO WE FIND ANY PURPOSE TO IMPINGE UPON PRISONERS' RIGHTS OF
COLLATERAL ATTACK UPON THEIR CONVICTIONS."  WE KNOW OF NOTHING IN THE
LEGISLATIVE HISTORY THAT INDICATES A DIFFERENT CONCLUSION.  WE DO NOT
THINK THAT THE ENACTMENT OF SEC. 2255 IS A BAR TO THIS MOTION, AND WE
HOLD THAT THE DISTRICT COURT HAS POWER TO GRANT SUCH A MOTION. 

CONTINUATION OF LITIGATION AFTER FINAL JUDGMENT AND EXHAUSTION OR
WAIVER OF ANY STATUTORY RIGHT OF REVIEW SHOULD BE ALLOWED THROUGH THIS
EXTRAORDINARY REMEDY ONLY UNDER CIRCUMSTANCES COMPELLING SUCH ACTION TO
ACHIEVE JUSTICE.  THERE ARE SUGGESTIONS IN THE GOVERNMENT'S BRIEF THAT
THE FACTS THAT JUSTIFY CORAM NOBIS PROCEDURE MUST HAVE BEEN UNKNOWN TO
THE JUDGE.  SINCE RESPONDENT'S YOUTH AND LACK OF COUNSEL WERE SO KNOWN,
IT IS ARGUED, THE REMEDY OF CORAM NOBIS IS UNAVAILABLE.  ONE FINDS
SIMILAR STATEMENTS AS TO THE KNOWLEDGE OF THE JUDGE OCCASIONALLY IN THE
LITERATURE AND CASES OF CORAM NOBIS.  (FN21)  SUCH AN ATTITUDE MAY
REFLECT THE RULE THAT DELIBERATE FAILURE TO USE A KNOWN REMEDY AT THE
TIME OF TRIAL MAY BE A BAR TO SUBSEQUENT RELIANCE ON THE DEFAULTED
RIGHT.  (FN22)  THE TRIAL RECORD APPARENTLY SHOWS MORGAN WAS WITHOUT
COUNSEL.  UNITED STATES V. MORGAN, 202 F.2D 67, 69.   HE ALLEGES HE WAS
NINETEEN, WITHOUT KNOWLEDGE OF LAW AND NOT ADVISED AS TO HIS RIGHTS. 
THE RECORD IS BARREN OF THE REASONS THAT BROUGHT ABOUT A TRIAL WITHOUT
LEGAL REPRESENTATION FOR THE ACCUSED.  (FN23)  AS THE PLEA WAS "GUILTY"
NO DETAILS OF THE HEARING APPEAR.  CF.  DE MEERLEER V. MICHIGAN, 329
U.S. 663.  IN THIS STATE OF THE RECORD WE CANNOT KNOW THE FACTS AND
THUS WE MUST RELY ON RESPONDENT'S ALLEGATIONS. 

IN THE MAYER CASE THIS COURT SAID THAT CORAM NOBIS INCLUDED ERRORS
"OF THE MOST FUNDAMENTAL CHARACTER."  (FN24)  UNDER THE RULE OF JOHNSON
V. ZERBST, 304 U.S. 458, 468, DECIDED PRIOR TO RESPONDENT'S CONVICTION,
A FEDERAL TRIAL WITHOUT COMPETENT AND INTELLIGENT WAIVER OF COUNSEL
BARS A CONVICTION OF THE ACCUSED.  (FN25)  WHERE IT CANNOT BE DEDUCED
FROM THE RECORD WHETHER COUNSEL WAS PROPERLY WAIVED, WE THINK, NO OTHER
REMEDY BEING THEN AVAILABLE AND SOUND REASONS EXISTING FOR FAILURE TO
SEEK APPROPRIATE EARLIER RELIEF, THIS MOTION IN THE NATURE OF THE
EXTRAORDINARY WRIT OF CORAM NOBIS MUST BE HEARD BY THE FEDERAL TRIAL
COURT.  (FN26)  OTHERWISE A WRONG MAY STAND UNCORRECTED WHICH THE
AVAILABLE REMEDY WOULD RIGHT.  OF COURSE, THE ABSENCE OF A SHOWING OF
WAIVER FROM THE RECORD DOES NOT OF ITSELF INVALIDATE THE JUDGMENT.  IT
IS PRESUMED THE PROCEEDINGS WERE CORRECT AND THE BURDEN RESTS ON THE
ACCUSED TO SHOW OTHERWISE.  JOHNSON V. ZERBST, SUPRA, AT 468; ADAMS V.
MCCANN, SUPRA, AT 281; CF. DARR V. BURFORD, 339 U.S. 200, 218. 

ALTHOUGH THE TERM HAS BEEN SERVED, THE RESULTS OF THE CONVICTION MAY
PERSIST.  SUBSEQUENT CONVICTIONS MAY CARRY HEAVIER PENALTIES, CIVIL
RIGHTS MAY BE AFFECTED.  (FN27)  AS THE POWER TO REMEDY AN INVALID
SENTENCE EXISTS, WE THINK, RESPONDENT IS ENTITLED TO AN OPPORTUNITY TO
ATTEMPT TO SHOW THAT THIS CONVICTION WAS INVALID.  AFFIRMED. 

FN1  NEW YORK PENAL LAW, SEC. 1941. 

FN2  28 U.S.C. SEC. 2255: 

"A PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED BY ACT
OF CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND THAT THE
SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE
UNITED STATES, OR THAT THE COURT WAS WITHOUT JURISDICTION TO IMPOSE
SUCH SENTENCE, OR THAT THE SENTENCE WAS IN EXCESS OF THE MAXIMUM
AUTHORIZED BY LAW, OR IS OTHERWISE SUBJECT TO COLLATERAL ATTACK, MAY
MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE." 

FN3  DARR V. BURFORD, 339 U.S. 200, 203-204: 

"THE WRIT OF HABEAS CORPUS COMMANDS GENERAL RECOGNITION AS THE
ESSENTIAL REMEDY TO SAFEGUARD A CITIZEN AGAINST IMPRISONMENT BY STATE
OR NATION IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.  TO MAKE THIS
PROTECTION EFFECTIVE FOR UNLETTERED PRISONERS WITHOUT FRIENDS OR FUNDS,
FEDERAL COURTS HAVE LONG DISREGARDED LEGALISTIC REQUIREMENTS IN
EXAMINING APPLICATIONS FOR THE WRIT AND JUDGED THE PAPERS BY THE SIMPLE
STATUTORY TEST OF WHETHER FACTS ARE ALLEGED THAT ENTITLE THE APPLICANT
TO RELIEF."    FN4  SUCH A MOTION IS A STEP IN THE CRIMINAL CASE AND
NOT, LIKE HABEAS CORPUS WHERE RELIEF IS SOUGHT IN A SEPARATE CASE AND
RECORD, THE BEGINNING OF A SEPARATE CIVIL PROCEEDING.  KURTZ V.
MOFFITT, 115 U.S. 487, 494.  WHILE AT COMMON LAW THE WRIT OF ERROR
CORAM NOBIS WAS ISSUED OUT OF CHANCERY LIKE OTHER WRITS, STEPHENS,
PRINCIPLES OF PLEADING (3D AMER.  ED.), 142, THE PROCEDURE BY MOTION IN
THE CASE IS NOW THE ACCEPTED AMERICAN PRACTICE.  PICKETT'S HEIRS V.
LEGERWOOD, 7 PET. 144, 147; WETMORE V. KARRICK, 205 U.S. 141, 151;
UNITED STATES V. MAYER, 235 U.S. 55, 67.  AS IT IS SUCH A STEP, WE DO
NOT THINK THAT RULE 60(B), FED. RULES CIV. PROC., EXPRESSLY ABOLISHING
THE WRIT OF ERROR CORAM NOBIS IN CIVIL CASES, APPLIES.  THIS MOTION IS
OF THE SAME GENERAL CHARACTER AS ONE UNDER 28 U.S.C. SEC. 2255.  SEE
REVISER'S NOTE.  CF. UNITED STATES V. KERSCHMAN, 201 F.2D 682, 684. 
AND SEE CONTRA TO THE ABOVE NOTE, PEOPLE V. KEMNETZ, 296 ILL. APP.
119, 15 N.E.2D 883. 

FN5  UNITED STATES V. BRADFORD, 194 F.2D 197, 201; SEE ALSO TINDER V.
UNITED STATES, 345 U.S. 565. 

FN6  28 U.S.C. SEC. 1651(A):  "THE SUPREME COURT AND ALL COURTS
ESTABLISHED BY ACT OF CONGRESS MAY ISSUE ALL WRITS NECESSARY OR
APPROPRIATE IN AID OF THEIR RESPECTIVE JURISDICTIONS AND AGREEABLE TO
THE USAGES AND PRINCIPLES OF LAW." 

REVISER'S NOTE: 

"THE REVISED SECTION EXTENDS THE POWER TO ISSUE WRITS IN AID OF
JURISDICTION, TO ALL COURTS ESTABLISHED BY ACT OF CONGRESS, THUS MAKING
EXPLICIT THE RIGHT TO EXERCISE POWERS IMPLIED FROM THE CREATION OF SUCH
COURTS." 

FN7  1 STAT. 81-82: 

"THAT ALL THE BEFORE-MENTIONED COURTS OF THE UNITED STATES, SHALL
HAVE POWER TO ISSUE WRITS OF SCIRE FACIAS, HABEAS CORPUS, AND ALL OTHER
WRITS NOT SPECIALLY PROVIDED FOR BY STATUTE, WHICH MAY BE NECESSARY FOR
THE EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND AGREEABLE TO THE
PRINCIPLES AND USAGES OF LAW  ...  ." 

FN8  SEE UNITED STATES ALKALI ASSN. V. UNITED STATES, 325 U.S. 196,
201; CF. UNITED STATES V. BEATTY, 232 U.S. 463, 467. 

FN9  2 TIDD'S PRACTICE (4TH AMER.  ED.)  1136-1137: 

"IF A JUDGMENT IN THE KING'S BENCH BE ERRONEOUS IN MATTER OF FACT
ONLY, AND NOT IN POINT OF LAW, IT MAY BE REVERSED IN THE SAME COURT, BY
WRIT OF ERROR CORAM NOBIS, OR QUAE CORAM NOBIS RESIDENT; SO CALLED,
FROM ITS BEING FOUNDED ON THE RECORD AND PROCESS, WHICH ARE STATED IN
THE WRIT TO REMAIN IN THE COURT OF THE LORD THE KING, BEFORE THE KING
HIMSELF; AS WHERE THE DEFENDANT, BEING UNDER AGE, APPEARED BY ATTORNEY,
OR THE PLAINTIFF OR DEFENDANT WAS A MARRIED WOMAN AT THE TIME OF
COMMENCING THE SUIT, OR DIED BEFORE VERDICT, OR INTERLOCUTORY JUDGMENT:
FOR ERROR IN FACT IS NOT THE ERROR OF THE JUDGES, AND REVERSING IT IS
NOT REVERSING THEIR OWN JUDGMENT.  SO, UPON A JUDGMENT IN THE KING'S
BENCH, IF THERE BE ERROR IN THE PROCESS, OR THROUGH THE DEFAULT OF THE
CLERKS, IT MAY BE REVERSED IN THE SAME COURT, BY WRIT OF ERROR CORAM
NOBIS:  ...  ." 

FN10  STEPHENS, PRINCIPLES OF PLEADING (3D AMER.  ED.), 143; 2
BISHOP, NEW CRIMINAL PROCEDURE (2D ED.), 1181. 

FN11  SEE CITATIONS IN N. 10, AND UNITED STATES V. PLUMER, 27 FED.
CAS. 561, 572, MR. JUSTICE CLIFFORD; O'CONNELL V. THE QUEEN, 11 CL. &
FIN.  (H.L. REP.) 155, 233, 252. 

FN12  ARCHBOLD (7TH ED., CHITTY, 1840) 350, 389; 1 HOLDSWORTH,
HISTORY OF ENGLISH LAW (1927), 224. 

FN13  A COLLECTION OF THESE CASES APPEARS IN AN ARTICLE BY ABRAHAM L.
FREEDMAN, ESQ., 3 TEMPLE L.Q. 365, 372.  SEE BRONSON V. SCHULTEN, 104
U.S. 410, 416. 

FN14  EX PARTE TONEY, 11 MO. 661; ADLER V. STATE, 35 ARK. 517;
SANDERS V. STATE, 85 IND. 318; MATTER OF HOGAN V. COURT, 296 N.Y. 1, 9,
68 N.E.2D 849, 852-853.  SEE ALSO A DISCUSSION OF THE NEW YORK CASES BY
JUDGE STANLEY H. FULD, THE WRIT OF ERROR CORAM NOBIS, 117 NEW YORK L.J.
2212, 2230, 2248, ISSUES OF JUNE 5, 6, 7, 1947; NOTE, 34 CORNELL L.Q.
596.  SPENCE V. DOWD, 145 F.2D 451; CF. HYSLER V. FLORIDA, 315 U.S.
411; TAYLOR V. ALABAMA, 335 U.S. 252; PEOPLE V. GREEN, 355 ILL. 468,
189 N.E. 500. 

FN15  "  ...  AND EVEN IF IT BE ASSUMED THAT IN THE CASE OF ERRORS IN
CERTAIN MATTERS OF FACT, THE DISTRICT COURT MAY EXERCISE IN CRIMINAL
CASES - AS AN INCIDENT TO THEIR POWERS EXPRESSLY GRANTED - A
CORRECTIONAL JURISDICTION AT SUBSEQUENT TERMS ANALOGOUS TO THAT
EXERCISED AT COMMON LAW ON WRITS OF ERROR CORAM NOBIS (SEE BISHOP, NEW
CRIM.  PRO., 2D ED., SEC. 1369), AS TO WHICH WE EXPRESS NO OPINION,
THAT AUTHORITY WOULD NOT REACH THE PRESENT CASE.  THIS JURISDICTION WAS
OF LIMITED SCOPE; THE POWER OF THE COURT THUS TO VACATE ITS JUDGMENTS
FOR ERRORS OF FACT EXISTED, AS ALREADY STATED, IN THOSE CASES WHERE THE
ERRORS WERE OF THE MOST FUNDAMENTAL CHARACTER, THAT IS, SUCH AS
RENDERED THE PROCEEDING ITSELF IRREGULAR AND INVALID."  ID., P. 69. 
SEE ALSO BRONSON V. SCHULTEN, 104 U.S. 410, 416; PHILLIPS V. NEGLEY,
117 U.S. 665, 673. 

IN UNITED STATES V. SMITH, 331 U.S. 469, 475, NOTE 4, WE REFERRED TO
THE SLIGHT NEED FOR A REMEDY LIKE CORAM NOBIS IN VIEW OF THE MODERN
SUBSTITUTES. 

FN16  ALLEN V. UNITED STATES, 162 F.2D 193; ROBINSON V. JOHNSTON, 118
F.2D 998, 1001, VACATED AND REMANDED FOR FURTHER PROCEEDINGS, 316 U.S.
649. 

FN17  ROBERTS V. UNITED STATES, 158 F.2D 150; UNITED STATES V.
STEESE, 144 F.2D 439.  SEE ALSO UNITED STATES V. MONJAR, 64 F. SUPP.
746. 

FN18  GARRISON V. UNITED STATES, 154 F.2D 106; CF. PIERCE V. UNITED
STATES, 157 F.2D 848. 

FN19  TINKOFF V. UNITED STATES, 129 F.2D 21; BARBER V. UNITED STATES,
142 F.2D 805; SPAULDING V. UNITED STATES, 155 F.2D 919; UNITED STATES
V. MOORE, 166 F.2D 102; CROWE V. UNITED STATES, 169 F.2D 1022; BICE V.
UNITED STATES, 177 F.2D 843; UNITED STATES V. ROCKOWER, 171 F.2D 423;
FARNSWORTH V. UNITED STATES, 91 U.S. APP. D.C. 121, 198 F.2D 600.  CF.
STRANG V. UNITED STATES, 53 F.2D 820. 

FN20  UNITED STATES V. KERSCHMAN, 201 F.2D 682; GILMORE V. UNITED
STATES, 129 F.2D 199. 

FN21  56 YALE L.J. 197, 233; 34 CORNELL L.Q. 598; ROBINSON V.
JOHNSTON, 118 F.2D 998, 1001, VACATED AND REMANDED FOR FURTHER
PROCEEDINGS, 316 U.S. 649. 

FN22  BROWN V. ALLEN, 344 U.S. 443, 486; SEE GAYES V. NEW YORK, 332
U.S. 145, 149, NOTE 3; NOTE, 58 A.L.R. 1286. 

FN23  UNTIL JOHNSON V. ZERBST, 304 U.S. 458, THERE WAS NO UNIFORM
PRACTICE IN THE FEDERAL COURTS TO HAVE THE ORDERS SHOW THE JUDGES'
CONCLUSION THAT THERE HAD BEEN A COMPETENT WAIVER OF COUNSEL.  CF.
UNITED STATES V. STEESE, 144 F.2D 439, 443. 

FN24  SEE NOTE 15, SUPRA.  BARBER V. UNITED STATES, 142 F.2D 805,
807; BRONSON V. SCHULTEN, 104 U.S. 410, 416; POWELL, APPELLATE
PROCEEDINGS (1872), 108; BLACK, JUDGMENTS (2D ED.), 460. 

FN25  SEE ALSO WALKER V. JOHNSTON, 312 U.S. 275; GLASSER V. UNITED
STATES, 315 U.S. 60; FED. RULE CRIM. PROC. 44. 

FN26  CF. BROWN V. ALLEN, SUPRA, AT 485-486. 

FN27  FISWICK V. UNITED STATES, 329 U.S. 211; NOTE, 59 YALE L.J.
786. 

MR. JUSTICE MINTON, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE JACKSON
AND MR. JUSTICE CLARK JOIN, DISSENTING. 

I AM UNABLE TO AGREE WITH THE DECISION OF THE COURT RESURRECTING THE
ANCIENT WRIT OF ERROR CORAM NOBIS FROM THE LIMBO TO WHICH IT PRESUMABLY
HAD BEEN RELEGATED BY RULE 60(B) F.R. CIV. P. AND 28 U.S.C. SEC. 2255,
ASSUMING THAT THE WRIT HAS EVER BEEN AVAILABLE IN THE FEDERAL COURTS TO
REVIEW CRIMINAL PROCEEDINGS.  A BRIEF REFERENCE TO THE RECORD WILL
EMPHASIZE MY REASONS FOR DOUBTING THE WISDOM OF THIS ACTION. 

ON DECEMBER 18, 1939, RESPONDENT, UPON A PLEA OF GUILTY, WAS
SENTENCED IN A FEDERAL DISTRICT COURT TO FOUR YEARS' IMPRISONMENT ON
EACH OF EIGHT COUNTS CHARGING DIVERS VIOLATIONS OF 18 U.S.C. SEC. 317
(NOW 18 U.S.C. SECS. 1702, 1708) AND 18 U.S.C. SEC. 347 (NOW 18 U.S.C.
SEC. 500).  THE SENTENCES RAN CONCURRENTLY AND WERE FULLY SERVED BY
RESPONDENT, DURING WHICH TIME HE NEVER QUESTIONED THEIR VALIDITY.  IN
1950, RESPONDENT WAS CONVICTED OF A STATE CRIME, APPARENTLY ATTEMPTED
BURGLARY IN THE THIRD DEGREE, BY A NEW YORK COURT AND SENTENCED UNDER
THAT STATE'S MULTIPLE OFFENDERS LAW.  (FN1) THE 1939 FEDERAL CONVICTION
WAS RELIED UPON TO BRING RESPONDENT WITHIN THE MULTIPLE OFFENDERS
STATUTE, MAKING POSSIBLE AN INCREASED SENTENCE FOR THE STATE OFFENSE. 
RESPONDENT IS NOW IMPRISONED BY NEW YORK PURSUANT TO THAT SENTENCE. 

APPROXIMATELY FOURTEEN MONTHS AFTER THE NEW YORK CONVICTION, MORE
THAN TWELVE YEARS AFTER BEING SENTENCED ON THE FEDERAL CONVICTION, AND
MORE THAN EIGHT YEARS AFTER THE FEDERAL SENTENCE WAS COMPLETED,
RESPONDENT FILED THIS "APPLICATION FOR A WRIT OF ERROR CORAM NOBIS" IN
THE FEDERAL DISTRICT COURT IN WHICH HE HAD BEEN CONVICTED.  HE
REQUESTED THAT THE FEDERAL JUDGMENT OF CONVICTION "BE SET ASIDE,
VACATED, AND BE DECLARED NULL AND VOID" SINCE AT THE TIME OF THE
CONVICTION, HE NEITHER HAD THE ASSISTANCE OF COUNSEL NOR WAS INFORMED
OF HIS CONSTITUTIONAL RIGHT TO COUNSEL, AND AT THE TIME WAS ONLY
NINETEEN YEARS OF AGE AND WITHOUT KNOWLEDGE OF THE LAW.  RESPONDENT DID
NOT ALLEGE HIS INNOCENCE OF THE FEDERAL CHARGES OR SET FORTH ANY FACTS
FROM WHICH INNOCENCE COULD BE INFERRED.  AND RESPONDENT HAS ATTEMPTED
NO EXPLANATION OF HIS PROLONGED DELAY IN SEEKING TO REMEDY THE ASSERTED
VIOLATION OF HIS CONSTITUTIONAL RIGHTS, NOR INTIMATED THAT HE IS NOW
SUFFERING SOME FEDERAL DISABILITY AS A RESULT OF THE CONVICTION. 

THE COURT NOW HOLDS THAT THE VALIDITY OF A CONVICTION BY A FEDERAL
COURT FOR A FEDERAL OFFENSE MAY BE INQUIRED INTO, LONG AFTER THE
PUNISHMENT IMPOSED FOR SUCH OFFENSE HAS BEEN SATISFIED, BY A "MOTION IN
THE NATURE OF A WRIT OF ERROR CORAM NOBIS" WHENEVER THE FEDERAL
CONVICTION IS TAKEN INTO ACCOUNT BY A STATE COURT IN IMPOSING SENTENCE
FOR A STATE CRIME.  THE BASIS FOR THIS HIGHLY UNUSUAL PROCEDURE IS SAID
TO BE THE ALL-WRITS SECTION OF THE JUDICIAL CODE, 28 U.S.C. SEC.
1651(A), WHICH PROVIDES 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." 
(FN2) 

I AGREE WITH THE MAJORITY FOR THE REASONS GIVEN THAT PROCEDURES OTHER
THAN UNDER THE ALL-WRITS SECTION ARE NOT OPEN TO RESPONDENT UNDER THE
CIRCUMSTANCES OF THIS CASE.  BUT I AM ALSO CONVINCED THAT THE ALL-WRITS
PREREQUISITES TO THE ISSUANCE OF A WRIT PURSUANT TO THAT STATUTE ARE
LACKING:  (1) THE WRIT HERE AUTHORIZED IS NOT IN AID OF THE
JURISDICTION OF THE DISTRICT COURT, AND (2) THE WRIT IS NOT "AGREEABLE
TO THE USAGES AND PRINCIPLES" OF PRESENT-DAY LAW. 

THAT THE WRIT DOES NOT ISSUE IN AID OF THE JURISDICTION OF THE
DISTRICT COURT APPEARS OBVIOUS.  RESPONDENT HAS RECEIVED A FINAL
JUDGMENT OF CONVICTION, HAS SATISFIED THE SENTENCE IMPOSED THEREUNDER,
AND IS NO LONGER SUBJECT TO PUNISHMENT OR CONTROL BY THE COURT BECAUSE
OF THE CONVICTION.  THEREFORE, I BELIEVE THAT THE JURISDICTION OF THE
DISTRICT COURT HAS BEEN EXHAUSTED, THE JUDGMENT IS FUNCTUS OFFICIO, AND
WE SHOULD HOLD THAT IT IS NO LONGER SUBJECT TO COLLATERAL ATTACK, JUST
AS THE COURTS GENERALLY HAVE HELD THAT AN APPEAL WILL NOT LIE FROM A
JUDGMENT OF CONVICTION WHEN THE JUDGMENT HAS BEEN SATISFIED.  GILLEN V.
UNITED STATES, 199 F.2D 454; BERGDOLL V. UNITED STATES, 279 F. 404. 
(FN3)  INSOFAR AS IS SHOWN HERE, ALL FEDERAL CONSEQUENCES OF THE
PROCEEDINGS HAVE ENDED AND HENCE THE JURISDICTION OF THE DISTRICT COURT
SHOULD BE HELD TO HAVE ENDED ALSO.  CF. EX PARTE LANGE, 18 WALL.  163;
UNITED STATES V. PLUMER, 27 FED. CAS. 561, 573-574.  SEE TINKOFF V.
UNITED STATES, 129 F.2D 21, 23.  WRITS MAY BE ISSUED UNDER THE ALL
WRITS SECTION IN AID OF A JURISDICTION THAT ALREADY EXISTS, NOT TO
REGAIN A JURISDICTION THAT HAS BEEN EXHAUSTED.  CF. ADAMS V. UNITED
STATES EX REL. MCCANN, 317 U.S. 269; WHITNEY V. DICK, 202 U.S. 132;
M'CLUNG V. SILLIMAN, 6 WHEAT.  598.  IF ANYTHING, THE PURPOSE OF THIS
WRIT WOULD APPEAR TO BE TO AID THE JURISDICTION OF THE NEW YORK COURTS
BECAUSE OF THEIR PROFESSED INABILITY TO INQUIRE INTO THE VALIDITY OF A
FEDERAL CONVICTION SERVING AS A BASIS FOR AN INCREASED SENTENCE UNDER
THE MULTIPLE OFFENDERS LAW.  (FN4) 

AS TO THE SECOND PREREQUISITE - THAT THE WRIT BE AGREEABLE TO THE
USAGES AND PRINCIPLES OF LAW - I AM OF THE VIEW THAT RESORT TO THE
COMMON-LAW WRIT OF CORAM NOBIS HAS BEEN PRECLUDED, IF IT WAS EVER
AVAILABLE IN THE FEDERAL COURTS TO REACH MATTERS SUCH AS ARE INVOLVED
HERE.  SEE UNITED STATES V. SMITH, 331 U.S. 469, 475, NOTE 4; UNITED
STATES V. MAYER, 235 U.S. 55; UNITED STATES V. PORT WASHINGTON BREWING
CO., 277 F. 306.  THE WRIT ISSUED AT COMMON LAW TO CORRECT ERRORS OF
FACT UNKNOWN TO THE COURT AT THE TIME OF THE JUDGMENT, WITHOUT FAULT OF
THE DEFENDANT, WHICH, IF KNOWN, WOULD PROBABLY HAVE PREVENTED THE
JUDGMENT.  (FN5)  THE PROBABILITY OF A DIFFERENT RESULT IF THE FACTS
HAD BEEN KNOWN IS A PRIME REQUISITE TO THE SUCCESS OF THE WRIT.  THE
SENTENCING COURT HERE MUST HAVE KNOWN THAT RESPONDENT DID NOT HAVE AN
ATTORNEY AND WAS NOT ADVISED OF HIS RIGHT TO COUNSEL, IF SUCH ARE THE
FACTS.  WHAT THEN WAS IT THAT THE COURT DIDN'T KNOW WHICH IF IT HAD
KNOWN WOULD PROBABLY HAVE PRODUCED A DIFFERENT RESULT?  THE RESPONDENT
DOESN'T SAY, NOR DOES HE SUGGEST HOW A LAWYER MIGHT HAVE HELPED HIM
UNLESS HE PICKED THE LOCK ON THE JAILHOUSE DOOR.  (FN6) 

PROCEEDINGS TO OBTAIN THE WRIT ARE GENERALLY CONSIDERED TO BE CIVIL
IN NATURE, (FN7) JUST AS HABEAS CORPUS IS A CIVIL PROCEEDING ALTHOUGH
MOST OFTEN USED TO OBTAIN RELIEF FROM CRIMINAL JUDGMENTS.  (FN8)  RULE
60(B) OF THE CIVIL RULES EXPRESSLY ABOLISHES WRITS OF ERROR CORAM NOBIS
AND PRESCRIBES THAT CIVIL PROCEEDINGS FOR ATTACKING A FINAL JUDGMENT
SHALL BE BY MOTION AS PROVIDED IN THE RULES OR BY AN INDEPENDENT
ACTION.  SIX GROUNDS FOR SUCH RELIEF ARE SET FORTH IN RULE 60(B), (FN9)
WHICH ALSO REQUIRES THAT A MOTION THEREUNDER SHALL BE MADE WITHIN A
YEAR AFTER THE JUDGMENT IF BASED ON MISTAKE, NEWLY-DISCOVERED EVIDENCE,
OR FRAUD, AND "WITHIN A REASONABLE TIME" IF BOTTOMED ON OTHER GROUNDS. 
LEAVING OPEN THE QUESTION OF WHETHER RESPONDENT HAS ADVANCED
SUFFICIENT REASONS FOR RELIEF PURSUANT TO RULE 60(B) IF THE PROCEEDINGS
HAD BEEN TIMELY COMMENCED, HE HAS NOT ESTABLISHED THAT THESE
PROCEEDINGS WERE INSTITUTED WITHIN A REASONABLE TIME AFTER ENTRY OF THE
JUDGMENT OF CONVICTION, EVEN IF THE ONE-YEAR PERIOD OF LIMITATION IS
NOT APPLICABLE.  RESPONDENT HAS NOT SOUGHT TO EXPLAIN HIS LONG DELAY IN
SEEKING TO SET ASIDE THE FEDERAL JUDGMENT, AND TWELVE YEARS' DELAY
WOULD APPEAR TO BE UNREASONABLE ON ITS FACE, ABSENT UNUSUAL
CIRCUMSTANCES WHICH ARE NOT SHOWN TO BE PRESENT HERE.  UNITED STATES V.
MOORE, 166 F.2D 102, 105; FARNSWORTH V. UNITED STATES, 91 U.S. APP.
D.C. 121, 198 F.2D 600; UNITED STATES V. BICE, 84 F. SUPP. 290, AFF'D,
117 F.2D 843. 

APPARENTLY, HAVING ONCE ABOLISHED THE COMMON-LAW WRIT OF CORAM NOBIS,
THE COURT NOW UNDERTAKES TO REESTABLISH IT UNDER THE NAME OF "A MOTION
IN THE NATURE OF CORAM NOBIS" IN ORDER TO ESCAPE THE LIMITATIONS LAID
DOWN IN RULE 60(B).  RULE 60(B) IS SAID TO BE INAPPLICABLE BECAUSE
CORAM NOBIS MAY BE SOUGHT BY A MOTION IN THE CRIMINAL CASE RATHER THAN
IN A SEPARATE, INDEPENDENT PROCEEDING.  THERE IS NO INDICATION THAT
THIS "APPLICATION" WAS INTENDED AS A MOTION IN THE CASE RATHER THAN AN
INDEPENDENT PROCEEDING TO SET ASIDE THE PRIOR JUDGMENT, AND SEVERAL
COURTS HAVE STATED THAT CORAM NOBIS PROCEEDINGS RETAIN THEIR CIVIL
CHARACTER UNDER THE MODERN PRACTICE.  (FN10) 

BUT ASSUMING THE CIVIL RULES TO BE INAPPOSITE, I BELIEVE THAT
CONGRESS SUPERSEDED THE COMMON-LAW WRIT OF CORAM NOBIS IN ENACTING 28
U.S.C. SEC. 2255.  (FN11)  AS THE REVISER'S NOTE MAKES CLEAR, THAT
OF THE ANCIENT WRIT OF ERROR CORAM NOBIS."  (FN12)  H.R. REP. NO. 308,
80TH CONG., 1ST SESS. A-180.  SEE UNITED STATES V. HAYMAN, 342 U.S.
205, 214-219.  IN ENACTING THIS COMPREHENSIVE PROCEDURE FOR COLLATERAL
ATTACKS ON FEDERAL CRIMINAL JUDGMENTS, CONGRESS HAS SUPPLIED THE REMEDY
TO WHICH RESORT MUST BE HAD.  SINCE CONGRESS DID NOT SEE FIT IN SEC.
2255 TO EXTEND THE REMEDY THERE PROVIDED TO PERSONS NOT IN FEDERAL
CUSTODY UNDER THE JUDGMENT ATTACKED, I DO NOT FEEL FREE TO DO SO. 

IT MAY BE SAID THAT THE FEDERAL CONVICTION IS STILL BEING USED
AGAINST RESPONDENT AND, THEREFORE, SOME RELIEF OUGHT TO BE AVAILABLE. 
OF COURSE THE RECORD OF A CONVICTION FOR A SERIOUS CRIME IS OFTEN A
LIFELONG HANDICAP.  THERE ARE A DOZEN WAYS IN WHICH EVEN A PERSON WHO
HAS REFORMED, NEVER OFFENDED AGAIN, AND CONSTANTLY ENDEAVORED TO LEAD
AN UPRIGHT LIFE MAY BE PREJUDICED THEREBY.  THE STAIN ON HIS REPUTATION
MAY AT ANY TIME THREATEN HIS SOCIAL STANDING OR AFFECT HIS JOB
OPPORTUNITIES, FOR EXAMPLE.  IS CORAM NOBIS ALSO TO BE AVAILABLE IN
SUCH CASES?  THE RELIEF BEING DEVISED HERE IS EITHER WIDE OPEN TO EVERY
EX-CONVICT AS LONG AS HE LIVES OR ELSE IT IS LIMITED TO THOSE WHO HAVE
RETURNED TO CRIME AND WANT THE RECORD EXPUNGED TO LESSEN A SUBSEQUENT
SENTENCE.  EITHER ALTERNATIVE SEEMS UNWARRANTED TO ME. 

THE IMPORTANT PRINCIPLE THAT MEANS FOR REDRESSING DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS SHOULD BE AVAILABLE OFTEN CLASHES WITH THE ALSO
IMPORTANT PRINCIPLE THAT AT SOME POINT A JUDGMENT SHOULD BECOME FINAL -
THAT LITIGATION MUST EVENTUALLY COME TO AN END.  THESE CONFLICTING
PRINCIPLES HAVE TRADITIONALLY BEEN ACCOMMODATED IN FEDERAL CRIMINAL
CASES BY PERMITTING COLLATERAL ATTACK ON A JUDGMENT ONLY DURING THE
TIME THAT PUNISHMENT UNDER THE JUDGMENT IS BEING IMPOSED, AND CONGRESS
HAS SO LIMITED THE USE OF PROCEEDINGS BY MOTION UNDER 28 U.S.C. SEC.
2255.  IF THAT IS TO BE CHANGED, CONGRESS SHOULD DO IT. 

FN1  NEW YORK PENAL LAW, SEC. 1941. 

FN2  EMPHASIS ADDED. 

FN3  DECISIONS OF STATE COURTS ON THE POINT ARE COLLECTED IN 24
C.J.S., CRIMINAL LAW, SEC. 1668; 17 C.J., CRIMINAL LAW, SECS. 3326,
3327. 

FN4  WE DO NOT KNOW, MOREOVER, THAT NEW YORK WILL MODIFY ITS SECOND
OFFENDER SENTENCE, IMPOSED AT A TIME WHEN THE FEDERAL CONVICTION HAD
NOT BEEN QUESTIONED, EVEN IF THE FEDERAL CONVICTION IS LATER VACATED. 

FN5  UNITED STATES V. MAYER, 235 U.S. 55, 67-69; ROBINSON V.
JOHNSTON, 118 F.2D 998, 1001, VACATED, 316 U.S. 649, REV'D ON OTHER
GROUNDS, 130 F.2D 202; FREEDMAN, THE WRIT OF ERROR CORAM NOBIS, 3
TEMP.  L.Q. 365.  THE SCOPE OF THE WRIT HAS BEEN EXPANDED BY SOME
STATES TO PROVIDE A VEHICLE OR COLLATERAL REDRESS OF DENIALS OF
CONSTITUTIONAL RIGHTS, USUALLY BECAUSE THE TRADITIONAL PROCEDURES FOR
AFFORDING SUCH RELIEF ARE FOR SOME REASON INADEQUATE.  HYSLER V.
FLORIDA, 315 U.S. 411, 415; FULD, THE WRIT OF ERROR CORAM NOBIS, 117
N.Y.L.J. 2212, 2230, 2248; NOTE, 26 IND. L.J. 529; NOTE, 39 KY. L.J.
440. 

FN6  SEE UNITED STATES V. MOORE, 166 F.2D 102. 

FN7  PEOPLE V. KEMNETZ, 296 ILL. APP. 119, 15 N.E.2D 883; STATE V.
YOUNGBLOOD, 221 IND.  408, 48 N.E.2D 55; STATE V. SPENCER, 219 IND.
148, 41 N.E.2D 601; STATE V. RAY, 111 KAN.  350, 207 P. 192; ELLIOTT V.
COMMONWEALTH, 292 KY. 614, 167 S.W.2D 703; CF. UNITED STATES V.
KERSCHMAN, 201 F.2D 682.  SEE ALSO CASES COLLECTED IN 24 C.J.S.,
CRIMINAL LAW, SEC. 1606(A). 

FN8  EX PARTE TOM TONG, 108 U.S. 556. 

FN9  "MISTAKES; INADVERTENCE; EXCUSABLE NEGLECT; NEWLY DISCOVERED
EVIDENCE; FRAUD, ETC.  ON MOTION AND UPON SUCH TERMS AS ARE JUST, THE
COURT MAY RELIEVE A PARTY OR HIS LEGAL REPRESENTATIVE FROM A FINAL
JUDGMENT, ORDER, OR PROCEEDING FOR THE FOLLOWING REASONS: (1) MISTAKE,
INADVERTENCE, SURPRISE, OR EXCUSABLE NEGLECT; (2) NEWLY DISCOVERED
EVIDENCE WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME
TO MOVE FOR A NEW TRIAL UNDER RULE 59(B); (3) FRAUD (WHETHER HERETOFORE
DENOMINATED INTRINSIC OR EXTRINSIC), MISREPRESENTATION, OR OTHER
MISCONDUCT OF AN ADVERSE PARTY; (4) THE JUDGMENT IS VOID; (5) THE
JUDGMENT HAS BEEN SATISFIED, RELEASED, OR DISCHARGED, OR A PRIOR
JUDGMENT UPON WHICH IT IS BASED HAS BEEN REVERSED OR OTHERWISE VACATED,
OR IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE
APPLICATION; OR (6) ANY OTHER REASON JUSTIFYING RELIEF FROM THE
OPERATION OF THE JUDGMENT  ...  ." 

FN10  SEE CASES CITED IN NOTE 7, SUPRA. 

FN11  "A PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED BY
ACT OF CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND THAT
THE SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR LAWS OF
THE UNITED STATES, OR THAT THE COURT WAS WITHOUT JURISDICTION TO IMPOSE
SUCH SENTENCE, OR THAT THE SENTENCE WAS IN EXCESS OF THE MAXIMUM
AUTHORIZED BY LAW, OR IS OTHERWISE SUBJECT TO COLLATERAL ATTACK, MAY
MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE." 

FN12  EMPHASIS ADDED. 
..END :













GENERAL PROTECTIVE COMMITTEE FOR THE HOLDERS OF OPTION WARRANTS OF THE
UNITED CORPORATION V. SECURITIES AND EXCHANGE COMMISSION 346 U.S. 521 


NO. 184.  ARGUED DECEMBER 2, 1953 - DECIDED JANUARY 4, 1954 - 92 U.S.
APP. D.C. 172, 203 F.2D 611, AFFIRMED IN PART AND REVERSED IN PART. 


A VOLUNTARY PLAN OF REORGANIZATION SUBMITTED TO THE SECURITIES AND
EXCHANGE COMMISSION UNDER SEC. 11(E) OF THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, WHICH WOULD ENABLE A REGISTERED HOLDING COMPANY TO
COMPLY WITH SEC. 11(B) OF THE ACT BY CONVERTING ITSELF INTO AN
INVESTMENT COMPANY, WAS APPROVED BY THE COMMISSION.  THE COMMISSION
EXPRESSLY PROVIDED IN ITS ORDER OF APPROVAL THAT CERTAIN PROVISIONS OF
THE PLAN WOULD NOT BE OPERATIVE "UNTIL AN APPROPRIATE UNITED STATES
DISTRICT COURT SHALL, UPON APPLICATION THERETO, ENTER AN ORDER
ENFORCING SAID PROVISIONS"; BUT THE COMMISSION HAD NOT YET APPLIED TO
THE DISTRICT COURT FOR ENFORCEMENT UNDER SEC. 11(E).  HELD:  ON A
PETITION FOR REVIEW UNDER SEC. 24(A) OF THE ACT, THE COURT OF APPEALS
WAS WITHOUT JURISDICTION OVER THOSE PROVISIONS OF THE PLAN WHICH THE
COMMISSION HAD MADE OPERATIVE ON ENFORCEMENT BY THE DISTRICT COURT, BUT
HAD JURISDICTION OF THE CONTROVERSY SO FAR AS IT RELATED TO OTHER
PROVISIONS OF THE PLAN.  PP. 522-536. 

GENERAL PROTECTIVE COMMITTEE FOR THE HOLDERS OF OPTION WARRANTS OF THE
UNITED CORPORATION V. SECURITIES AND EXCHANGE COMMISSION ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE SECURITIES AND EXCHANGE COMMISSION APPROVED A REORGANIZATION PLAN
UNDER SEC. 11(E) OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935. 
HOLDING COMPANY ACT RELEASES NOS. 10614, 10643.  ON REVIEW IN THE COURT
OF APPEALS, THE PETITIONER HERE WAS ALLOWED TO INTERVENE, AND THE COURT
OF APPEALS AFFIRMED THE COMMISSION'S ORDER.  92 U.S. APP. D.C. 172, 203
F.2D 611.  THIS COURT GRANTED CERTIORARI LIMITED TO THE QUESTION OF
JURISDICTION.  346 U.S. 810.  AFFIRMED IN PART AND REVERSED IN PART, P.
536. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE UNITED CORPORATION IS A HOLDING COMPANY REGISTERED UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49 STAT. 803, 15 U.S.C.
SEC. 79 ET SEQ. SECTION 11(B) OF THAT ACT REQUIRES EACH HOLDING
COMPANY, WITH EXCEPTIONS NOT MATERIAL HERE, TO LIMIT THE OPERATIONS OF
THE HOLDING-COMPANY SYSTEM OF WHICH IT IS A PART TO A SINGLE INTEGRATED
PUBLIC-UTILITY SYSTEM AND TO BUSINESSES REASONABLY INCIDENTAL OR
ECONOMICALLY NECESSARY OR APPROPRIATE TO THAT SYSTEM.  SECTION 11(E)
ALLOWS A REGISTERED HOLDING COMPANY TO SUBMIT A PLAN TO THE COMMISSION
WHICH WILL ENABLE IT TO COMPLY WITH SEC. 11(B). 

UNITED CONTROLLED, DIRECTLY OR INDIRECTLY, VARIOUS GAS AND ELECTRIC
UTILITY COMPANIES IN THE EAST.   IT SUBMITTED A PLAN TO THE COMMISSION
WHICH, IT CLAIMED, WOULD COMPLETE ITS COMPLIANCE WITH SEC. 11(B).  THE
COMMISSION REJECTED UNITED'S PLAN.  13 S.E.C. 854, 898-899.  THE
COMMISSION, HOWEVER, WITHHELD ISSUANCE OF A DISSOLUTION ORDER SO AS TO
AFFORD UNITED AN OPPORTUNITY TO COMPLY WITH THE ACT BY DIVESTING ITSELF
OF CONTROL OVER ITS SUBSIDIARIES AND BY TRANSFORMING ITSELF INTO AN
INVESTMENT COMPANY.  ID., P. 899.  THE COMMISSION ACCORDINGLY DIRECTED
THAT UNITED CEASE TO BE A HOLDING COMPANY AND LIMIT ITS CORPORATE
STRUCTURE TO A SINGLE CLASS OF STOCK, NAMELY, COMMON STOCK.  (FN1) 

NO REVIEW OF THAT ORDER WAS SOUGHT.  THEREAFTER UNITED RETIRED ITS
PREFERENCE STOCK BY EXCHANGING IT FOR UNDERLYING PORTFOLIO SECURITIES
AND FOR CASH.  OTHER PORTFOLIO SECURITIES WERE DISPOSED OF THROUGH
MARKET SALES AND DIVIDEND DISTRIBUTIONS. 

AS OF DECEMBER 31, 1950, UNITED HAD OUTSTANDING 14,529,491.5 SHARES
OF COMMON STOCK, AND OPTION WARRANTS ENTITLING THE HOLDERS TO PURCHASE
3,732,059 SHARES OF COMMON STOCK AT ANY TIME AT A PRICE OF $27.50 PER
SHARE.  AS OF DECEMBER 31, 1950, UNITED'S ASSETS CONSISTED
APPROXIMATELY OF $57,000,000 OF SECURITIES AND $2,000,000 IN CASH AND
GOVERNMENT BONDS, WHICH WAS EQUIVALENT TO $4.12 PER SHARE OF COMMON
STOCK.  THE SECURITIES, WHICH CONSISTED OF COMMON STOCKS OF UTILITY
OPERATING AND HOLDING COMPANIES, INCLUDED 11.9 PERCENT OF THE VOTING
STOCK OF NIAGARA MOHAWK POWER CORP., 28.3 PERCENT OF SOUTH JERSEY GAS
CO., 5.8 PERCENT OF THE UNITED GAS IMPROVEMENT CO., 5.5 PERCENT OF THE
COLUMBIA GAS SYSTEM, INC., AND VOTING STOCKS OF OTHER COMPANIES IN
AMOUNTS LESS THAN 5 PERCENT OF THE TOTAL OUTSTANDING. 

UNITED SUBMITTED A FURTHER PLAN WHICH PROVIDED IN ESSENTIAL PART AS
FOLLOWS: 

FIRST.  THE SALE BY UNITED OF ALL OF ITS SOUTH JERSEY COMMON STOCK
AND OF SUFFICIENT AMOUNTS OF ITS STOCKHOLDINGS IN THE OTHER UTILITY
COMPANIES SO THAT WITHIN ONE YEAR ITS RESULTANT HOLDINGS WOULD NOT
EXCEED 4.9 PERCENT OF THE VOTING STOCK OF ANY OF THOSE COMPANIES. 

SECOND.  AN OFFER TO UNITED'S STOCKHOLDERS WHO WANTED TO WITHDRAW
FROM THE COMPANY.  HOLDERS OF 100 OR MORE SHARES OF UNITED'S COMMON
STOCK WERE OFFERED COMMON STOCK OF NIAGARA MOHAWK THAT UNITED HAD IN
ITS PORTFOLIO; HOLDERS OF SMALLER BLOCKS OF UNITED'S COMMON STOCK WERE
OFFERED CASH.  THESE OFFERS WERE ON A VOLUNTARY BASIS. 

THIRD.  CANCELLATION OF THE OPTION WARRANTS WITHOUT ANY COMPENSATION
TO THE HOLDERS. 

FOURTH.  AMENDMENTS TO THE CHARTER AND BYLAWS OF UNITED (WITHOUT A
VOTE OF STOCKHOLDERS) TO PROVIDE FOR CUMULATIVE VOTING IN THE ELECTION
OF DIRECTORS AND A 50 PERCENT QUORUM AT STOCKHOLDERS MEETINGS. 

THE COMMISSION APPROVED THE PLAN WITH MODIFICATIONS NOT MATERIAL TO
THE ISSUES PRESENTED IN THIS CASE.  HOLDING COMPANY ACT RELEASES NOS.
10614, 10643. 

FIRST.  THE METHOD OF TRANSFORMING UNITED FROM A HOLDING COMPANY INTO
AN INVESTMENT COMPANY WAS APPROVED. 

SECOND.  OFFERS TO THOSE STOCKHOLDERS WHO WANTED TO WITHDRAW FROM THE
ENTERPRISE WERE HELD TO BE FAIR BOTH TO THEM AND TO THOSE WHO CHOSE TO
REMAIN AS INVESTORS IN UNITED. 

THIRD.  THE HOLDERS OF THE OPTION WARRANTS WERE DENIED ANY
PARTICIPATION IN THE REORGANIZATION ON THE GROUND THAT THERE WAS NO
REASONABLE EXPECTATION THAT THE MARKET PRICE OF THE COMMON STOCK WOULD
INCREASE TO THE EXTENT NEEDED TO GIVE THE WARRANTS A RECOGNIZABLE VALUE
AND THAT CONTINUANCE OF THE WARRANTS WOULD BE INHERENTLY DECEPTIVE TO
INVESTORS AND PERPETUATE USELESS AND UNNECESSARY COMPLEXITIES IN THE
CORPORATE STRUCTURE. 

FOURTH.  THE CHANGES AS RESPECTS CUMULATIVE VOTING AND QUORUM
REQUIREMENTS WERE APPROVED. 

THE COMMISSION IN ITS ORDER OF APPROVAL STATED THAT THE PROVISIONS OF
THE PLAN RELATING TO THE CANCELLATION OF THE WARRANTS AND THE AMENDMENT
OF THE CHARTER AND BYLAWS WOULD NOT BE OPERATIVE "UNTIL AN APPROPRIATE
UNITED STATES DISTRICT COURT SHALL, UPON APPLICATION THERETO, ENTER AN
ORDER ENFORCING SAID PROVISIONS."  HOLDING COMPANY ACT RELEASE NO.
10643, P. 3.  NO SUCH PROVISION WAS MADE AS RESECTS THE OTHER
PROVISIONS OF THE PLAN. 

SOME OF THE COMMON STOCKHOLDERS THEREUPON FILED A PETITION FOR REVIEW
IN THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA UNDER SEC. 24(A)
OF THE ACT.  (FN2)  THEY CHALLENGED THE FIRST AND SECOND PROVISIONS OF
THE PLAN, WHICH WE HAVE DESCRIBED ABOVE.  THEY ALSO ASKED THAT THE
THIRD AND FOURTH PROVISIONS, THE ONES WHICH WERE MADE SUBJECT TO
APPROVAL BY THE DISTRICT COURT, BE APPROVED BY THE COURT OF APPEALS. 
THE PETITIONER IN THIS COURT IS A PROTECTIVE COMMITTEE REPRESENTING
HOLDERS OF THE OPTION WARRANTS.  IT MOVED TO INTERVENE IN THE REVIEW
PROCEEDINGS IN THE COURT OF APPEALS, CLAIMING THAT FORFEITURE OF THE
WARRANTS WAS NOT JUSTIFIED.  THE COMMISSION AND UNITED OPPOSED THE
INTERVENTION ON THE GROUND THAT BY REASON OF THE COMMISSION'S ORDER AND
SEC. 11(E) OF THE ACT (FN3) ONLY THE DISTRICT COURT HAD JURISDICTION TO
REVIEW THE PROVISIONS OF THE PLAN RESPECTING THE ELIMINATION OF THE
WARRANTS AND THE AMENDMENTS TO THE CHARTER AND BYLAWS. 

THE COURT OF APPEALS ALLOWED PETITIONER TO INTERVENE.  IT HELD THAT
SO LONG AS THE COMMISSION HAD NOT APPLIED TO A DISTRICT COURT UNDER
SEC. 11(E) TO ENFORCE A PLAN, THE COURT OF APPEALS HAD EXCLUSIVE
JURISDICTION ON PETITION OF AN AGGRIEVED PERSON UNDER SEC. 24(A) TO
REVIEW THE ENTIRE PLAN, INCLUDING THOSE PROVISIONS WHICH THE COMMISSION
MADE ENFORCEABLE BY THE DISTRICT COURT.  THE COURT OF APPEALS FURTHER
HELD THAT IF IT AFFIRMED OR MODIFIED AN ORDER OF THE COMMISSION
APPROVING A PLAN AND THE COMMISSION THEREAFTER APPLIED TO THE DISTRICT
COURT TO OBTAIN ENFORCEMENT, THE DISTRICT COURT WOULD HAVE NO FUNCTION
EXCEPT TO ENFORCE, SINCE THE RULING BY THE COURT OF APPEALS ON THE
FAIRNESS OF THE PLAN WOULD BE BINDING ON THE DISTRICT COURT. 
ACCORDINGLY THE COURT OF APPEALS REVIEWED THE ENTIRE PLAN, FOUND IT
FAIR AND EQUITABLE IN ALL RESPECTS, AND AFFIRMED THE COMMISSION'S
ORDER.  92 U.S. APP. D.C. 172, 203 F.2D 611.  THE CASE IS HERE ON
CERTIORARI LIMITED TO THE QUESTION OF JURISDICTION.  346 U.S. 810. 

THE QUESTION IS NOT WHETHER THERE IS JUDICIAL REVIEW OF ORDERS OF THE
COMMISSION.  THE QUESTION IS WHICH ORDERS ARE REVIEWABLE IN THE
DISTRICT COURT, WHICH IN THE COURT OF APPEALS.  THE FIRST READING OF
THE ACT MAY LEAVE THE IMPRESSION THAT THERE IS CONFLICT BETWEEN SEC.
24(A) AND SEC. 11(E).  SECTION 24(A) GIVES REVIEW IN THE COURT OF
APPEALS OF "AN ORDER" OF THE COMMISSION AND GRANTS THE COURT OF APPEALS
"EXCLUSIVE JURISDICTION TO AFFIRM, MODIFY, OR SET ASIDE SUCH ORDER, IN
WHOLE OR IN PART."  THIS IS CLEARLY BROAD ENOUGH TO INCLUDE AN ORDER OF
THE COMMISSION UNDER SEC. 11 RESPECTING A PLAN OF A HOLDING COMPANY
SEEKING COMPLIANCE WITH SEC. 11(B).  SECTION 11(E), HOWEVER, PROVIDES
IN SOME INSTANCES FOR REVIEW OF SUCH PLANS ON APPLICATION BY THE
COMMISSION TO THE DISTRICT COURT.  MOREOVER, THE COMMISSION BY VIRTUE
OF SEC. 18(F) (FN4) MAY APPLY TO THE DISTRICT COURT FOR ENFORCEMENT OF
ANY OF ITS ORDERS WHERE IT APPEARS THAT SOMEONE IS ABOUT TO COMMIT A
VIOLATION. 

WE ARE TENDERED SEVERAL ALTERNATIVES: 

1.  THAT THE COURT OF APPEALS HAVING FIRST ACQUIRED JURISDICTION CAN
AND SHOULD REVIEW THE ENTIRE PLAN. 

2.  THAT THE DISTRICT COURT CAN AND SHOULD REVIEW ALL PHASES OF THE
PLAN IN AN ENFORCEMENT PROCEEDING AND, PENDING APPLICATION FOR
ENFORCEMENT, NO REVIEW OF ANY PHASE OF THE PLAN SHOULD BE ENTERTAINED
BY THE COURT OF APPEALS. 

3.  THAT A SO-CALLED SPLIT REVIEW IS PERMISSIBLE WHERE AS HERE THE
COMMISSION HAS RESERVED FOR ENFORCEMENT PROCEEDINGS IN THE DISTRICT
COURT ONLY CERTAIN PROVISIONS OF THE PLAN, THE COURT OF APPEALS BEING
RESTRICTED UNDER SEC. 24(A) TO THOSE NOT SO RESERVED. 

WE HAVE CONCLUDED THAT THE SO-CALLED SPLIT REVIEW IS PERMISSIBLE
UNDER THE CIRCUMSTANCES HERE PRESENT AND THAT THE COURT OF APPEALS HAD
JURISDICTION UNDER SEC. 24(A) TO REVIEW ALL QUESTIONS TENDERED IT,
EXCEPT THOSE PERTAINING TO THE ELIMINATION OF THE OPTION WARRANTS AND
THE AMENDMENTS TO THE CHARTER AND BYLAWS.  IN RESULT WE AFFIRM IN PART
AND REVERSE IN PART THE COURT OF APPEALS ON THE JURISDICTIONAL QUESTION
TO WHICH WE RESTRICTED THE GRANT OF THE PETITION FOR CERTIORARI. 

IT SHOULD BE NOTED TO BEGIN WITH THAT THE ACT MARKS OUT TWO PATHS TO
COMPLIANCE BY A REGISTERED HOLDING COMPANY WITH THE REQUIREMENTS OF THE
ACT.  ONE IS THE PROCEDURE UNDER SEC. 11(B) WHEREBY THE COMMISSION BY
ORDER MAY REQUIRE THAT DESIGNATED STEPS BE TAKEN BY THE HOLDING
COMPANY.  FAILING THAT, THE COMMISSION MAY APPLY TO A DISTRICT COURT
FOR ENFORCEMENT OF ITS ORDERS UNDER SEC. 11(D).  SEE COMMONWEALTH &
SOUTHERN CORP. V. SECURITIES & EXCHANGE COMMISSION, 134 F.2D 747.  WE
ARE NOT CONCERNED HERE WITH THAT METHOD OF BRINGING HOLDING COMPANIES
INTO COMPLIANCE WITH THE ACT.  WE DEAL HERE WITH THE SECOND METHOD OF
COMPLIANCE - THE VOLUNTARY REORGANIZATION WHICH THE COMPANY ITSELF
SUBMITS UNDER THE BROAD DISCRETION CONGRESS LEFT TO MANAGEMENT TO
DETERMINE HOW TO BRING THEIR SYSTEMS INTO COMPLIANCE WITH THE ACT.  OUR
PROBLEM STARTS UNDER SEC. 11(E) WITH THE PROVISION THAT A HOLDING
COMPANY "MAY  ...  SUBMIT A PLAN TO THE COMMISSION FOR THE DIVESTMENT
OF CONTROL, SECURITIES, OR OTHER ASSETS, OR FOR OTHER ACTION  ...
ENABLING SUCH COMPANY  ...  TO COMPLY WITH THE PROVISIONS OF SUBSECTION
(B)." 

WE TURN THEN TO PROBLEMS INVOLVED IN THE EFFORTS OF REGISTERED
HOLDING COMPANIES VOLUNTARILY TO MEET THE REQUIREMENTS OF THE ACT. 

THE CONGRESS CONTEMPLATED THAT UNDER THIS ACT SOME HOLDING COMPANIES
MIGHT SATISFY THE REQUIREMENTS OF SEC. 11 BY DIVESTING THEMSELVES OF
CONTROL AND CONVERTING THEMSELVES INTO INVESTMENT COMPANIES.  SEE S.
REP. NO. 621, 74TH CONG., 1ST SESS., P. 13.  IF IN ANTICIPATION OF THAT
STEP A HOLDING COMPANY DESIRED TO GIVE ITS SECURITY HOLDERS AN
OPPORTUNITY TO WITHDRAW FROM THE ENTERPRISE AND WITH THE APPROVAL OF
THE COMMISSION MADE THEM AN OFFER TO EXCHANGE THEIR SECURITIES FOR
SECURITIES IN ITS PORTFOLIO, THERE WOULD BE NO DOUBT THAT THE FAIRNESS
OF THAT OFFER WOULD BE REVIEWABLE BY THE COURT OF APPEALS UNDER SEC.
24(A) ON PETITION OF A SECURITY HOLDER.  TWO CASES DRAWN FROM UNITED'S
PROGRAM OF COMPLIANCE WITH THE ACT ARE ILLUSTRATIVE. 

AFTER THE COMMISSION ORDERED UNITED TO SIMPLIFY ITS CAPITAL STRUCTURE
AND CEASE TO BE A HOLDING COMPANY, UNITED PROPOSED A PLAN FOR
ELIMINATING ITS PREFERENCE STOCK BY MAKING AN OFFER TO EXCHANGE ON A
VOLUNTARY BASIS SECURITIES OF SUBSIDIARIES AND CASH FOR THE PREFERENCE
STOCK.  THE COMMISSION APPROVED; AND REVIEW OF THAT PLAN WAS HAD IN THE
COURT OF APPEALS UNDER THE PROCEDURE OF SEC. 24(A) OF THE ACT. 
PHILLIPS V. SECURITIES & EXCHANGE COMMISSION, 153 F.2D 27.  LATER
UNITED PROPOSED THE PRO RATA DISTRIBUTION OF SHARES OF A SUBSIDIARY TO
HOLDERS OF ITS COMMON STOCK.  THE COMMISSION APPROVED; AND REVIEW OF
THAT PLAN WAS HAD UNDER SEC. 24(A) IN THE COURT OF APPEALS.  PHILLIPS
V. SECURITIES & EXCHANGE COMMISSION, 87 U.S. APP. D.C. 380, 185 F.2D
746. 

IF, THEREFORE, UNITED HAD OFFERED ITS COMMON STOCKHOLDERS CASH OR
PORTFOLIO SECURITIES FOR THEIR COMMON STOCK AND HAD PUT THE OFFER IN A
SEPARATE PLAN, NOT MAKING IT PHYSICALLY A PART OF A MORE COMPREHENSIVE
PLAN, AND THE COMMISSION HAD APPROVED THE EXCHANGE, THERE CAN BE NO
DOUBT THAT THAT PLAN COULD HAVE BEEN REVIEWED BY THE COURT OF APPEALS
UNDER SEC. 24(A).  WE ARE UNABLE TO SEE WHY THE MERE FACT THAT THE
OFFER IS NOT IN ISOLATION BUT ONE OF SEVERAL PROPOSALS JOINED TOGETHER
FOR PRESENTATION TO THE COMMISSION AND APPROVED BY THE COMMISSION AT
THE TIME IT APPROVES THE OTHER PROPOSALS SHOULD MAKE A DIFFERENCE FOR
PURPOSES OF JUDICIAL REVIEW. 

MR. JUSTICE RUTLEDGE WRITING FOR THE COURT IN SECURITIES & EXCHANGE
COMMISSION V. CENTRAL-ILLINOIS CORP., 338 U.S. 96, POINTED OUT THAT THE
DIFFERENCE BETWEEN SEC. 11(E) AND SEC. 24(A) IS NOT ESSENTIALLY IN THE
SCOPE OF JUDICIAL REVIEW.  RATHER, IT IS IN THE FUNCTION WHICH THE TWO
SYSTEMS OF REVIEW PERFORM.  AS HE SAID, SEC. 11(E) SERVES "TO MOBILIZE
THE JUDICIAL AUTHORITY IN CARRYING OUT THE POLICIES OF THE ACT."  ID.,
P. 125.  THE FULL IMPORT OF THAT STATEMENT CAN BE UNDERSTOOD ONLY IF
SEC. 11(E) AND THE FUNCTIONS IT PERFORMS ARE APPRECIATED.  SECTION
11(E) APPLIES TO A PLAN WHICH A HOLDING COMPANY SUBMITS TO THE
COMMISSION FOR PURPOSES OF COMPLYING WITH THE ACT.  IN OTHER WORDS, IT
APPLIES TO WHAT TRADITIONALLY HAS BEEN KNOWN IN THE FIELD OF BUSINESS
AND FINANCE AS VOLUNTARY REORGANIZATIONS, THAT IS TO SAY,
REORGANIZATIONS DESIGNED BY THE MANAGEMENT, NOT THOSE IMPOSED ON A
COMPANY FROM WITHOUT.  THE HOLDING COMPANY PROPOSES THE VOLUNTARY
REORGANIZATION; THE COMMISSION, AFTER HEARING, APPROVES, IF IT FINDS
THE PLAN "NECESSARY TO EFFECTUATE THE PROVISIONS OF SUBSECTION (B) AND
FAIR AND EQUITABLE TO THE PERSONS AFFECTED BY SUCH PLAN."  IF SEC.
11(E) ENDED THERE, IT WOULD BE PLAIN THAT JUDICIAL REVIEW WOULD BE HAD
EITHER UNDER SEC. 24(A) ON A PETITION BY AN "AGGRIEVED" PERSON OR UNDER
SEC. 18(F) IF AND WHEN THE COMMISSION BROUGHT AN ACTION TO ENFORCE
COMPLIANCE WITH ITS ORDER APPROVING A PLAN.  SECTION 11(E), HOWEVER,
HAS ITS OWN ENFORCEMENT PROCEDURE, SOMEWHAT PECULIARLY WORDED.  IT
GIVES A REGISTERED HOLDING COMPANY THE STANDING TO ASK THAT THE
ENFORCEMENT MACHINERY OF THE ACT BE PLACED BEHIND ITS VOLUNTARY PLAN OF
REORGANIZATION.  (FN5)  SECTION 11(E) PROVIDES, "THE COMMISSION, AT THE
REQUEST OF THE COMPANY, MAY APPLY TO A COURT, IN ACCORDANCE WITH THE
PROVISIONS OF SUBSECTION (F) OF SECTION 18, TO ENFORCE AND CARRY OUT
THE TERMS AND PROVISIONS OF SUCH PLAN." 

THE COMMISSION MAY OR MAY NOT ACCEDE TO THE COMPANY'S SUGGESTION. 
IT ONLY SAYS THAT THE COMMISSION "MAY" DO SO.  THAT IMPLIES THE
EXERCISE OF DISCRETION.  THE COMPANY MIGHT REQUEST, AS HERE, THAT ONLY
SOME OF THE TERMS AND PROVISIONS OF A PLAN BE SUBMITTED TO THE
ENFORCEMENT PROCEEDINGS OF THE ACT; OR IT MIGHT ASK THAT EACH AND EVERY
PROPOSAL BE SO TREATED.  THE COMMISSION MIGHT REFUSE THE REQUEST OR IT
MIGHT GRANT IT IN WHOLE OR IN PART.  THE CONSIDERATIONS GOVERNING THE
EXERCISE OF THE COMMISSION'S DISCRETION WOULD EMBRACE A VARIETY OF
FACTORS. 

IT MAY BE NECESSARY TO ELIMINATE ONE CLASS OF STOCK; AN EXCHANGE ON A
VOLUNTARY BASIS MAY NOT BE POSSIBLE BECAUSE SOME SECURITY HOLDERS
OBJECT.  THEREFORE A COMPULSORY RETIREMENT OF THE STOCK MAY BE
NECESSARY.  ONE STEP IN UNITED'S PROGRAM OF COMPLIANCE INVOLVED THAT
PROCEDURE, AS IS SHOWN BY IN RE UNITED CORP., 82 F. SUPP. 196.  UNITED
PROPOSED A PLAN FOR THE COMPULSORY RETIREMENT OF PREFERENCE STOCK; THE
COMMISSION APPROVED AND APPLIED TO THE DISTRICT COURT FOR ENFORCEMENT. 

AN ENFORCEMENT DECREE ON ONE PHASE OF A VOLUNTARY PLAN OF
REORGANIZATION MAY BE AN APPROPRIATE AND CONVENIENT MEANS (IF NOT A
NECESSARY ONE) TO MODIFY A CERTIFICATE OF INCORPORATION.  THUS IN
DELAWARE THE CORPORATION STATUTE DIRECTS THE SECRETARY OF STATE TO
ACCEPT A DECREE OF A FEDERAL COURT ENFORCING A PROVISION OF A PLAN
WHICH MODIFIES, ALTERS, OR REPEALS THE BYLAWS OF A DELAWARE CORPORATION
OR AMENDS ITS CERTIFICATE OF INCORPORATION.  8 DEL. CODE ANN., 1953,
SEC. 245. 

ILLUSTRATIONS COULD BE MULTIPLIED.  BUT THOSE WE HAVE GIVEN INDICATE
THAT A HOLDING COMPANY MAY NOT BE ABLE TO CARRY THROUGH WITHOUT SOME
DEGREE OF COMPULSION ALL PHASES OF THE VOLUNTARY PLAN IT SUBMITS, THAT
IT MAY NEED THE FORCE OF A JUDICIAL DECREE BEHIND THE COMMISSION'S
ORDER IN ORDER TO PUT THROUGH ITS REORGANIZATION. 

ON THE OTHER HAND, THE HOLDING COMPANY MIGHT CONCLUDE THAT MARKET
CONDITIONS WERE SO FAVORABLE, ITS OWN FINANCIAL SITUATION SO STRONG,
THE TERMS OF THE VOLUNTARY REORGANIZATION SO ATTRACTIVE THAT IT WOULD
NEED NO HELP FROM ANY SOURCE TO EFFECTUATE THE PLAN, ONCE THE
COMMISSION APPROVED. 

THAT IS THE REASON CONGRESS LEFT THE CHOICE - THE RIGHT TO ASK FOR
ENFORCEMENT HELP - TO THE HOLDING COMPANY. 

CONCEIVABLY THE COMMISSION MIGHT REFUSE TO GIVE THE HELP REQUESTED
UNLESS OTHER PHASES OF THE PLAN WERE ALSO PUT THROUGH ENFORCEMENT
PROCEEDINGS.  THAT CONCLUSION MIGHT BE REACHED WHERE THE SEVERAL
ASPECTS OF THE PLAN WERE SO CLOSELY AND INTIMATELY RELATED ONE TO THE
OTHER THAT THE FAIRNESS OF ONE TURNED ON THE FAIRNESS OF THE OTHER.  NO
SUCH ISSUES ARISES HERE, FOR THE QUESTION WHETHER THE COMMON
STOCKHOLDERS WHO WANT TO WITHDRAW FROM UNITED HAVE BEEN OFFERED ENOUGH
NIAGARA MOHAWK STOCK OR ENOUGH CASH HAS NOTHING TO DO EITHER WITH THE
ELIMINATION OF THE OPTION WARRANTS OR THE CHANGES IN THE CHARTER AND
BYLAWS TO GOVERN STOCKHOLDERS WHO DO NOT WITHDRAW FROM THE ENTERPRISE. 

WE HAVE SAID ENOUGH TO INDICATE SOME OF THE CONSIDERATIONS
CONFRONTING THE COMMISSION WHEN IT DECIDES, IN CONNECTION WITH A
VOLUNTARY REORGANIZATION PLAN UNDER SEC. 11(E), WHETHER IT WILL
"MOBILIZE THE JUDICIAL AUTHORITY IN CARRYING OUT THE POLICIES OF THE
ACT," TO USE THE WORDS OF MR. JUSTICE RUTLEDGE IN THE CENTRAL-ILLINOIS
CORP. CASE, SUPRA.  THE COMMISSION MAY SEND ONLY ONE PROVISION OF A
PLAN OF VOLUNTARY REORGANIZATION INTO ENFORCEMENT PROCEEDINGS AND LET
ALL OTHERS GO THE ROUTE OF SEC. 24(A) SHOULD AN AGGRIEVED PERSON DESIRE
TO TAKE THEM THERE.  HERE AS IN OTHER FIELDS (PHELPS DODGE CORP. V.
LABOR BOARD, 313 U.S. 177, 194) THE RELATION OF REMEDY TO POLICY IS
PECULIARLY FOR THE ADMINISTRATIVE AGENCY.  SEE AMERICAN POWER CO. V.
SECURITIES & EXCHANGE COMMISSION, 329 U.S. 90, 112.  WE CANNOT SAY THAT
THE COMMISSION ABUSED ITS DISCRETION IN THE PRESENT CASE, FOR, AS WE
HAVE ALREADY OBSERVED, THE AMENDMENTS OF THE CHARTER AND BYLAWS AND THE
FAIRNESS OF THE ELIMINATION OF THE OPTION WARRANTS HAVE NO APPARENT
RELEVANCY TO THE MANNER IN WHICH THE COMMON STOCKHOLDERS, WHO SOUGHT
REVIEW IN THE CIRCUIT COURT UNDER SEC. 24(A), SAY THEY HAVE BEEN
TREATED. 

IT MAY BE, AS SOME ARGUE, THAT IT WOULD BE A BETTER SCHEME TO HAVE
ALL OR NONE OF A PLAN GO INTO ENFORCEMENT PROCEEDINGS UNDER SEC.
11(E).  IF THE ENTIRE PLAN WERE PRESENTED IN THE ENFORCEMENT
PROCEEDINGS, ALL PARTIES WOULD BE NOTIFIED AND HEARD AT ONE TIME.  BUT
CONGRESS IN ITS WISDOM HAS PROVIDED DIFFERENTLY.  THE PROBLEM RELATES,
AS WE HAVE SAID, ONLY TO VOLUNTARY REORGANIZATIONS, THAT IS TO PLANS
SUBMITTED BY THE COMPANIES THEMSELVES TO BRING THEIR OPERATIONS INTO
COMPLIANCE WITH THE ACT.  THE HISTORY OF VOLUNTARY RECAPITALIZATIONS,
READJUSTMENTS, AND REORGANIZATIONS MAY WELL HAVE SUGGESTED THAT THE
LITIGIOUS ISSUES WOULD NOT BE NUMEROUS, THAT OVERALL JUDICIAL REVIEW OF
THE TOTAL PLAN NEED NOT BE MADE MANDATORY, THAT ONLY SELECT PHASES AND
ASPECTS OF VOLUNTARY REORGANIZATION NEED BE PUT THROUGH ENFORCEMENT
PROCEEDINGS.  CERTAINLY ONE WHO HAS AN ISOLATED POINT OF OBJECTION,
WHOSE PROTEST RELATES ONLY TO A SINGLE PHASE OF A PLAN HAS AN ADVANTAGE
IN THE REVIEW ACCORDED HIM BY SEC. 24(A).  HE CAN BRING SUIT IN THE
COURT OF APPEALS IN THE CIRCUIT WHERE HE RESIDES OR HAS HIS PRINCIPAL
PLACE OF BUSINESS, OR IN THE DISTRICT OF COLUMBIA.  HE CAN SUE AT ONCE
IN HIS OWN BAILIWICK AND NOT HAVE TO AWAIT INSTITUTION OF AN
ENFORCEMENT PROCEEDING PERHAPS IN SOME FARAWAY PLACE.  HE CAN HAVE A
HEARING ON HIS OWN PERSONAL GRIEVANCE WITHOUT RUNNING THE RISK THAT HIS
CASE MAY BE LOST IN THE LARGE SHUFFLE OF AN ENFORCEMENT PROCEEDING
WHERE MANY PARTIES AND MANY INTERESTS ARE INVOLVED. 

THERE IS NOTHING STRANGE OR IRRATIONAL IN ROUTING THE COMMON
STOCKHOLDERS IN THIS CASE TO THE COURT OF APPEALS AND THE OPTION
WARRANT HOLDERS TO THE DISTRICT COURT.  EACH WILL HAVE HIS DAY IN
COURT.  NOTHING THAT ONE COURT DOES WILL IMPINGE ON THE OTHER.  EACH
COURT WILL BE PERFORMING A DIFFERENT FUNCTION.  WHETHER A BETTER
PROCEDURE COULD BE DEVISED IS NOT FOR US TO DETERMINE.  IT IS
SUFFICIENT THAT THE PROCEDURE INDICATED IS PERMISSIBLE UNDER THE ACT,
AND THAT THE COMMISSION IN SELECTING CERTAIN PHASES OF A PLAN FOR
SUBMISSION TO ENFORCEMENT PROCEEDINGS DID NOT, TO BORROW A PHRASE FROM
THE COURT OF APPEALS FOR THE THIRD CIRCUIT, LOSE "SIGHT OF THE LAW." 
(FN6) 

WE ACCORDINGLY AFFIRM THE COURT OF APPEALS IN TAKING JURISDICTION
OVER THE CONTROVERSY INSOFAR AS IT RELATED (1) TO THE SALE BY UNITED OF
ITS HOLDINGS AND (2) TO THE OFFERS IT MADE TO ITS STOCKHOLDERS WHO
WANTED TO WITHDRAW.  WE REVERSE THE COURT OF APPEALS IN TAKING
JURISDICTION OVER THE PROVISIONS OF THE VOLUNTARY PLAN OF
REORGANIZATION WHICH THE COMMISSION IN ITS ORDER MADE OPERATIVE ON
ENFORCEMENT BY THE DISTRICT COURT.  SO ORDERED. 

FN1  SECTION 11(B) PLACES ON THE COMMISSION THE DUTY TO REQUIRE
REGISTERED HOLDING COMPANIES AND THEIR SUBSIDIARIES NOT ONLY TO LIMIT,
WITH SPECIFIC EXCEPTIONS, THEIR OPERATIONS TO A SINGLE INTEGRATED
PUBLIC-UTILITY SYSTEM BUT ALSO TO SIMPLIFY THEIR CAPITAL STRUCTURES. 

FN2  SECTION 24(A) PROVIDES: 

"ANY PERSON OR PARTY AGGRIEVED BY AN ORDER ISSUED BY THE COMMISSION
UNDER THIS TITLE MAY OBTAIN A REVIEW OF SUCH ORDER IN THE CIRCUIT COURT
OF APPEALS OF THE UNITED STATES WITHIN ANY CIRCUIT WHEREIN SUCH PERSON
RESIDES OR HAS HIS PRINCIPAL PLACE OF BUSINESS, OR IN THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, BY FILING IN SUCH COURT,
WITHIN SIXTY DAYS AFTER THE ENTRY OF SUCH ORDER, A WRITTEN PETITION
PRAYING THAT THE ORDER OF THE COMMISSION BE MODIFIED OR SET ASIDE IN
WHOLE OR IN PART.  A COPY OF SUCH PETITION SHALL BE FORTHWITH SERVED
UPON ANY MEMBER OF THE COMMISSION, OR UPON ANY OFFICER THEREOF
DESIGNATED BY THE COMMISSION FOR THAT PURPOSE, AND THEREUPON THE
COMMISSION SHALL CERTIFY AND FILE IN THE COURT A TRANSCRIPT OF THE
RECORD UPON WHICH THE ORDER COMPLAINED OF WAS ENTERED.  UPON THE FILING
OF SUCH TRANSCRIPT SUCH COURT SHALL HAVE EXCLUSIVE JURISDICTION TO
AFFIRM, MODIFY, OR SET ASIDE SUCH ORDER, IN WHOLE OR IN PART.  NO
OBJECTION TO THE ORDER OF THE COMMISSION SHALL BE CONSIDERED BY THE
COURT UNLESS SUCH OBJECTION SHALL HAVE BEEN URGED BEFORE THE COMMISSION
OR UNLESS THERE WERE REASONABLE GROUNDS FOR FAILURE SO TO DO.  THE
FINDINGS OF THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL
EVIDENCE, SHALL BE CONCLUSIVE.  IF APPLICATION IS MADE TO THE COURT FOR
LEAVE TO ADDUCE ADDITIONAL EVIDENCE, AND IT IS SHOWN TO THE
SATISFACTION OF THE COURT THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND
THAT THERE WERE REASONABLE GROUNDS FOR FAILURE TO ADDUCE SUCH EVIDENCE
IN THE PROCEEDING BEFORE THE COMMISSION, THE COURT MAY ORDER SUCH
ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE COMMISSION AND TO BE ADDUCED
UPON THE HEARING IN SUCH MANNER AND UPON SUCH TERMS AND CONDITIONS AS
TO THE COURT MAY SEEM PROPER.  THE COMMISSION MAY MODIFY ITS FINDINGS
AS TO THE FACTS BY REASON OF THE ADDITIONAL EVIDENCE SO TAKEN, AND IT
SHALL FILE WITH THE COURT SUCH MODIFIED OR NEW FINDINGS, WHICH, IF
SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE, AND ITS
RECOMMENDATION, IF ANY, FOR THE MODIFICATION OR SETTING ASIDE OF THE
ORIGINAL ORDER.  THE JUDGMENT AND DECREE OF THE COURT AFFIRMING,
MODIFYING, OR SETTING ASIDE, IN WHOLE OR IN PART, ANY SUCH ORDER OF THE
COMMISSION SHALL BE FINAL, SUBJECT TO REVIEW BY THE SUPREME COURT OF
THE UNITED STATES UPON CERTIORARI OR CERTIFICATION AS PROVIDED IN
28, SECS. 346 AND 347)." 

FN3  SECTION 11(E) PROVIDES: 

"IN ACCORDANCE WITH SUCH RULES AND REGULATIONS OR ORDER AS THE
COMMISSION MAY DEEM NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR
FOR THE PROTECTION OF INVESTORS OR CONSUMERS, ANY REGISTERED HOLDING
COMPANY OR ANY SUBSIDIARY COMPANY OF A REGISTERED HOLDING COMPANY MAY,
AT ANY TIME AFTER JANUARY 1, 1936, SUBMIT A PLAN TO THE COMMISSION FOR
THE DIVESTMENT OF CONTROL, SECURITIES, OR OTHER ASSETS, OR FOR OTHER
ACTION BY SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF FOR THE
PURPOSE OF ENABLING SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF TO
COMPLY WITH THE PROVISIONS OF SUBSECTION (B).  IF, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, THE COMMISSION SHALL FIND SUCH PLAN, AS
SUBMITTED OR AS MODIFIED, NECESSARY TO EFFECTUATE THE PROVISIONS OF
SUBSECTION (B) AND FAIR AND EQUITABLE TO THE PERSONS AFFECTED BY SUCH
PLAN, THE COMMISSION SHALL MAKE AN ORDER APPROVING SUCH PLAN; AND THE
COMMISSION, AT THE REQUEST OF THE COMPANY, MAY APPLY TO A COURT, IN
ACCORDANCE WITH THE PROVISIONS OF SUBSECTION (F) OF SECTION 18, TO
ENFORCE AND CARRY OUT THE TERMS AND PROVISIONS OF SUCH PLAN.  IF, UPON
ANY SUCH APPLICATION, THE COURT, AFTER NOTICE AND OPPORTUNITY FOR
HEARING, SHALL APPROVE SUCH PLAN AS FAIR AND EQUITABLE AND AS
APPROPRIATE TO EFFECTUATE THE PROVISIONS OF SECTION 11, THE COURT AS A
COURT OF EQUITY MAY, TO SUCH EXTENT AS IT DEEMS NECESSARY FOR THE
PURPOSE OF CARRYING OUT THE TERMS AND PROVISIONS OF SUCH PLAN, TAKE
EXCLUSIVE JURISDICTION AND POSSESSION OF THE COMPANY OR COMPANIES AND
THE ASSETS THEREOF, WHEREVER LOCATED; AND THE COURT SHALL HAVE
JURISDICTION TO APPOINT A TRUSTEE, AND THE COURT MAY CONSTITUTE AND
APPOINT THE COMMISSION AS SOLE TRUSTEE, TO HOLD OR ADMINISTER, UNDER
THE DIRECTION OF THE COURT AND IN ACCORDANCE WITH THE PLAN THERETOFORE
APPROVED BY THE COURT AND THE COMMISSION, THE ASSETS SO POSSESSED." 

FN4  SECTION 18(F) PROVIDES: 

"WHENEVER IT SHALL APPEAR TO THE COMMISSION THAT ANY PERSON IS
ENGAGED OR ABOUT TO ENGAGE IN ANY ACTS OR PRACTICES WHICH CONSTITUTE OR
WILL CONSTITUTE A VIOLATION OF THE PROVISIONS OF THIS TITLE, OR OF ANY
RULE, REGULATION, OR ORDER THEREUNDER, IT MAY IN ITS DISCRETION BRING
AN ACTION IN THE PROPER DISTRICT COURT OF THE UNITED STATES, THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, OR
THE UNITED STATES COURTS OF ANY TERRITORY OR OTHER PLACE SUBJECT TO THE
JURISDICTION OF THE UNITED STATES, TO ENJOIN SUCH ACTS OR PRACTICES AND
TO ENFORCE COMPLIANCE WITH THIS TITLE OR ANY RULE, REGULATION, OR ORDER
THEREUNDER, AND UPON A PROPER SHOWING A PERMANENT OR TEMPORARY
INJUNCTION OR DECREE OR RESTRAINING ORDER SHALL BE GRANTED WITHOUT
BOND.  THE COMMISSION MAY TRANSMIT SUCH EVIDENCE AS MAY BE AVAILABLE
CONCERNING SUCH ACTS OR PRACTICES TO THE ATTORNEY GENERAL, WHO, IN HIS
DISCRETION, MAY INSTITUTE THE APPROPRIATE CRIMINAL PROCEEDINGS UNDER
THIS TITLE."    FN5  IN SPEAKING OF PLANS OF VOLUNTARY REORGANIZATION
UNDER SEC. 11(E) THE COURT IN COMMONWEALTH & SOUTHERN CORP. V.
SECURITIES & EXCHANGE COMMISSION, 134 F.2D 747, 751, SAID: 

"IF THE PLAN IS ONE WHICH CAN BE CARRIED OUT BY THE SOLE ACTION OF
THE PARTIES THERETO NO FURTHER PROCEEDINGS ARE NEEDED.  IF NOT, THE
SUBSECTION AUTHORIZES THE COMMISSION, AT THE REQUEST OF THE COMPANY
PROPOSING THE PLAN, TO MAKE APPLICATION TO A DISTRICT COURT TO ENFORCE
AND CARRY OUT THE PLAN.  IN THIS PROCEEDING THE COURT, IF IT FINDS THE
PLAN FAIR, EQUITABLE AND APPROPRIATE, MAY DIRECT IT TO BE CARRIED OUT,
TAKING POSSESSION OF THE COMPANY AND ITS ASSETS IF NECESSARY TO THAT
END  ...  . 

"IT WILL THUS BE SEEN THAT THE CONGRESSIONAL PURPOSE IS TO LEAVE OPEN
TO THE HOLDING COMPANIES A BROAD AREA OF DISCRETION IN DETERMINING JUST
HOW THEY ARE TO BRING THEIR SYSTEMS INTO COMPLIANCE WITH THE REQUIRED
STANDARDS  ...  . 

"IT IS OBVIOUS THAT IN MANY CASES THE DESIRED RESULT MAY BE REACHED
IN MORE THAN ONE WAY.  CONGRESS EVIDENTLY INTENDED TO PERMIT THE
COMMISSION TO LEAVE TO THE COMPANY INVOLVED THE INITIATIVE IN
SUGGESTING FROM AMONG THE AVAILABLE ALTERNATIVE METHODS THAT ONE WHICH
IT DEEMS MOST APPROPRIATE.   THIS SEEMS CLEAR IN THE LIGHT OF THE FACT
THAT UNDER SECTION 11(E) THE COMPANY IS NOT RESTRICTED TO PROPOSING A
PLAN OF COMPLIANCE WHICH IT IS IN A POSITION TO CARRY OUT ITSELF BUT IT
MAY ALSO PROPOSE A PLAN AFFECTING THE RIGHTS OF THIRD PERSONS WHICH IT
MAY, THROUGH THE COMMISSION, REQUEST A COURT TO ENFORCE AGAINST THE
OPPOSITION OF THOSE THIRD PERSONS.  IT IS ONLY IF THE COMPANY DOES NOT
PROPOSE A PLAN WHICH THE COMMISSION AND THE COURT APPROVE THAT THE
COMMISSION UNDER SECTION 11(D) ITSELF MAY PROPOSE AND SEEK ENFORCEMENT
OF A PLAN AGAINST THE OPPOSITION OF THE COMPANY." 

FN6  SEE IN RE STANDARD GAS & ELECTRIC CO., 151 F.2D 326, 331. 
..END :











THEATRE ENTERPRISES, INC. V. PARAMOUNT FILM DISTRIBUTING CORP. 346 U.S.
537 


NO. 19.  ARGUED NOVEMBER 30, DECEMBER 1, 1953 - DECIDED JANUARY 4, 1954
201 F.2D 306, AFFIRMED. 


PETITIONER BROUGHT SUIT IN A FEDERAL DISTRICT COURT UNDER THE CLAYTON
ACT FOR TREBLE DAMAGES AND AN INJUNCTION, ALLEGING THAT RESPONDENT
MOTION PICTURE PRODUCERS AND DISTRIBUTORS HAD VIOLATED THE ANTITRUST
LAWS BY CONSPIRING TO RESTRICT "FIRST-RUN" PICTURES TO DOWNTOWN
BALTIMORE THEATRES, THUS CONFINING PETITIONER'S SUBURBAN THEATRE TO
SUBSEQUENT RUNS AND UNREASONABLE "CLEARANCES."  THERE WAS NO DIRECT
EVIDENCE OF ILLEGAL AGREEMENT BETWEEN RESPONDENTS; AND THE JURY
RETURNED A GENERAL VERDICT FOR RESPONDENTS.  HELD: 

1.  UPON THE EVIDENCE IN THE CASE, THE TRIAL JUDGE PROPERLY REFUSED
TO DIRECT A VERDICT FOR PETITIONER AND PROPERLY SUBMITTED THE ISSUE OF
CONSPIRACY TO THE JURY.  PP. 539-542. 

(A)  PROOF OF PARALLEL BUSINESS BEHAVIOR DOES NOT CONCLUSIVELY
ESTABLISH AGREEMENT, NOR DOES SUCH BEHAVIOR ITSELF CONSTITUTE A SHERMAN
ACT OFFENSE.  PP. 540-541. 

(B)  THE DECREES IN UNITED STATES V. PARAMOUNT PICTURES, INC., 334
U.S. 131, ALONE OR IN CONJUNCTION WITH PETITIONER'S OTHER PROOF, FORMED
NO BASIS FOR A DIRECTED VERDICT FOR PETITIONER, SINCE THOSE DECREES
WERE ONLY PRIMA FACIE EVIDENCE OF A CONSPIRACY COVERING THE AREA AND
EXISTING DURING THE PERIOD THERE INVOLVED, AND SINCE PETITIONER'S
ALLEGATION OF CONSPIRACY WAS FACTUALLY CONTESTED.  PP. 541-542. 

2.  IN HIS INSTRUCTIONS TO THE JURY, THE TRIAL JUDGE DID NOT FAIL TO
GIVE SUFFICIENT WEIGHT TO THE DECREES IN THE PARAMOUNT CASE.  PP. 542
544. 

(A)  THE INSTRUCTIONS IN THIS CONNECTION WERE NOT SO SUPERFICIAL AND
SO LIMITED AS TO DEPRIVE PETITIONER OF ANY OF THE BENEFITS CONFERRED
UPON IT BY SEC. 5 OF THE CLAYTON ACT.  PP. 542-543. 

(B)  IT WAS NOT ERROR FOR THE TRIAL JUDGE TO INSTRUCT THE JURY, IN
EFFECT, THAT THE PARAMOUNT DECREES ALONE COULD NOT SUPPORT A RECOVERY
BY PETITIONER AND THAT ADDITIONAL EVIDENCE WAS REQUIRED TO RELATE THE
PRIOR PARAMOUNT CONSPIRACY TO BALTIMORE AND TO THE CLAIMED DAMAGE
PERIOD.  PP. 543-544. 

THEATRE ENTERPRISES, INC. V. PARAMOUNT FILM DISTRIBUTING CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS SUIT FOR TREBLE DAMAGES AND AN INJUNCTION
UNDER SECS. 4 AND 16 OF THE CLAYTON ACT, (FN1) ALLEGING THAT RESPONDENT
MOTION PICTURE PRODUCERS AND DISTRIBUTORS (FN2) HAD VIOLATED THE
ANTITRUST LAWS (FN3) BY CONSPIRING TO RESTRICT "FIRST-RUN" (FN4)
PICTURES TO DOWNTOWN BALTIMORE THEATRES, THUS CONFINING ITS SUBURBAN
THEATRE TO SUBSEQUENT RUNS AND UNREASONABLE "CLEARANCES."  (FN5)  AFTER
HEARING THE EVIDENCE A JURY RETURNED A GENERAL VERDICT FOR
RESPONDENTS.  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT AFFIRMED THE
JUDGMENT BASED ON THE VERDICT.  201 F.2D 306.  WE GRANTED CERTIORARI. 
345 U.S. 963. 

PETITIONER NOW URGES, AS IT DID IN THE COURT OF APPEALS, THAT THE
TRIAL JUDGE SHOULD HAVE DIRECTED A VERDICT IN ITS FAVOR AND SUBMITTED
TO THE JURY ONLY THE QUESTION OF THE AMOUNT OF DAMAGES.  ALTERNATIVELY,
PETITIONER CLAIMS THAT THE TRIAL JUDGE ERRED BY INADEQUATELY
INSTRUCTING THE JURY AS TO THE SCOPE AND EFFECT OF THE DECREES IN
UNITED STATES V. PARAMOUNT PICTURES, INC., THE GOVERNMENT'S PRIOR
EQUITY SUIT AGAINST RESPONDENTS.  (FN6)  WE THINK BOTH CONTENTIONS ARE
UNTENABLE. 

THE OPINION OF THE COURT OF APPEALS CONTAINS A COMPLETE SUMMARY OF
THE EVIDENCE PRESENTED TO THE JURY.  WE NEED NOT RECITE THAT EVIDENCE
AGAIN.  IT IS SUFFICIENT TO NOTE THAT PETITIONER OWNS AND OPERATES THE
CREST THEATRE, LOCATED IN A NEIGHBORHOOD SHOPPING DISTRICT SOME SIX
MILES FROM THE DOWNTOWN SHOPPING CENTER IN BALTIMORE, MARYLAND.  THE
CREST, POSSESSING THE MOST MODERN IMPROVEMENTS AND APPOINTMENTS, OPENED
ON FEBRUARY 26, 1949.  BEFORE AND AFTER THE OPENING, PETITIONER,
THROUGH ITS PRESIDENT, REPEATEDLY SOUGHT TO OBTAIN FIRST-RUN FEATURES
FOR THE THEATRE.  PETITIONER APPROACHED EACH RESPONDENT SEPARATELY,
INITIALLY REQUESTING EXCLUSIVE FIRST-RUNS, LATER ASKING FOR FIRST-RUNS
ON A "DAY AND DATE" BASIS.  (FN7)  BUT RESPONDENTS UNIFORMLY REBUFFED
PETITIONER'S EFFORTS AND ADHERED TO AN ESTABLISHED POLICY OF
RESTRICTING FIRST-RUNS IN BALTIMORE TO THE EIGHT DOWNTOWN THEATRES. 
ADMITTEDLY THERE IS NO DIRECT EVIDENCE OF ILLEGAL AGREEMENT BETWEEN THE
RESPONDENTS AND NO CONSPIRACY IS CHARGED AS TO THE INDEPENDENT
EXHIBITORS IN BALTIMORE, WHO ACCOUNT FOR 63% OF FIRST-RUN EXHIBITIONS. 
THE VARIOUS RESPONDENTS ADVANCED MUCH THE SAME REASONS FOR DENYING
PETITIONER'S OFFERS.  AMONG OTHER REASONS, THEY ASSERTED THAT DAY-AND
DATE FIRST-RUNS ARE NORMALLY GRANTED ONLY TO NONCOMPETING THEATRES. 
SINCE THE CREST IS IN "SUBSTANTIAL COMPETITION" WITH THE DOWNTOWN
THEATRES, A DAY-AND-DATE ARRANGEMENT WOULD BE ECONOMICALLY UNFEASIBLE. 
AND EVEN IF RESPONDENTS WISHED TO GRANT PETITIONER SUCH A LICENSE, NO
DOWNTOWN EXHIBITOR WOULD WAIVE HIS CLEARANCE RIGHTS OVER THE CREST AND
AGREE TO A SIMULTANEOUS SHOWING.  AS A RESULT, IF PETITIONER WERE TO
RECEIVE FIRST-RUNS, THE LICENSE WOULD HAVE TO BE AN EXCLUSIVE ONE. 
HOWEVER, AN EXCLUSIVE LICENSE WOULD BE ECONOMICALLY UNSOUND BECAUSE THE
CREST IS A SUBURBAN THEATRE, LOCATED IN A SMALL SHOPPING CENTER, AND
SERVED BY LIMITED PUBLIC TRANSPORTATION FACILITIES; AND, WITH A DRAWING
AREA OF LESS THAN ONE-TENTH THAT OF A DOWNTOWN THEATRE, IT CANNOT
COMPARE WITH THOSE EASILY ACCESSIBLE THEATRES IN THE POWER TO DRAW
PATRONS.  HENCE THE DOWNTOWN THEATRES OFFER FAR GREATER OPPORTUNITIES
FOR THE WIDESPREAD ADVERTISEMENT AND EXPLOITATION OF NEWLY RELEASED
FEATURES, WHICH IS THOUGHT NECESSARY TO MAXIMIZE THE OVER-ALL RETURN
FROM SUBSEQUENT RUNS AS WELL AS FIRST-RUNS.  THE RESPONDENTS, IN THE
LIGHT OF THESE CONDITIONS, ATTACKED THE GUARANTEED OFFERS OF
PETITIONER, ONE OF WHICH OCCURRED DURING THE TRIAL, AS NOT BEING MADE
IN GOOD FAITH.  RESPONDENTS LOEW'S AND WARNER REFUSED PETITIONER AN
EXCLUSIVE LICENSE BECAUSE THEY OWNED THE THREE DOWNTOWN THEATRES
RECEIVING THEIR FIRST-RUN PRODUCT. 

THE CRUCIAL QUESTION IS WHETHER RESPONDENTS' CONDUCT TOWARD PETITIONER
STEMMED FROM INDEPENDENT DECISION OR FROM AN AGREEMENT, TACIT OR
EXPRESS.  TO BE SURE, BUSINESS BEHAVIOR IS ADMISSIBLE CIRCUMSTANTIAL
EVIDENCE FROM WHICH THE FACT FINDER MAY INFER AGREEMENT.  INTERSTATE
CIRCUIT, INC. V. UNITED STATES, 306 U.S. 208 (1939); UNITED STATES V.
MASONITE CORP., 316 U.S. 265 (1942); UNITED STATES V. BAUSCH & LOMB
OPTICAL CO., 321 U.S. 707 (1944); AMERICAN TOBACCO CO. V. UNITED
STATES, 328 U.S. 781 (1946); UNITED STATES V. PARAMOUNT PICTURES, INC.,
334 U.S. 131 (1948).  BUT THIS COURT HAS NEVER HELD THAT PROOF OF
PARALLEL BUSINESS BEHAVIOR CONCLUSIVELY ESTABLISHES AGREEMENT OR,
PHRASED DIFFERENTLY, THAT SUCH BEHAVIOR ITSELF CONSTITUTES A SHERMAN
ACT OFFENSE.  CIRCUMSTANTIAL EVIDENCE OF CONSCIOUSLY PARALLEL BEHAVIOR
MAY HAVE MADE HEAVY INROADS INTO THE TRADITIONAL JUDICIAL ATTITUDE
TOWARD CONSPIRACY; (FN8) BUT "CONSCIOUS PARALLELISM" HAS NOT YET READ
CONSPIRACY OUT OF THE SHERMAN ACT ENTIRELY.  REALIZING THIS, PETITIONER
ATTEMPTS TO BOLSTER ITS ARGUMENT FOR A DIRECTED VERDICT BY URGING THAT
THE CONSCIOUS UNANIMITY OF ACTION BY RESPONDENTS SHOULD BE "MEASURED
AGAINST THE BACKGROUND AND FINDINGS IN THE PARAMOUNT CASE."  IN OTHER
WORDS, SINCE THE SAME RESPONDENTS HAD CONSPIRED IN THE PARAMOUNT CASE
TO IMPOSE A UNIFORM SYSTEM OF RUNS AND CLEARANCES WITHOUT ADEQUATE
EXPLANATION TO SUSTAIN THEM AS REASONABLE RESTRAINTS OF TRADE, USE OF
THE SAME DEVICE IN THE PRESENT CASE SHOULD BE LEGALLY EQUATED TO
CONSPIRACY.  BUT THE PARAMOUNT DECREES, EVEN IF ADMISSIBLE, WERE ONLY
PRIMA FACIE EVIDENCE OF A CONSPIRACY COVERING THE AREA AND EXISTING
DURING THE PERIOD THERE INVOLVED.  ALONE OR IN CONJUNCTION WITH THE
OTHER PROOF OF THE PETITIONER, THEY WOULD FORM NO BASIS FOR A DIRECTED
VERDICT.  HERE EACH OF THE RESPONDENTS HAD DENIED THE EXISTENCE OF ANY
COLLABORATION AND IN ADDITION HAD INTRODUCED EVIDENCE OF THE LOCAL
CONDITIONS SURROUNDING THE CREST OPERATION WHICH, THEY CONTENDED,
PRECLUDED IT FROM BEING A SUCCESSFUL FIRST-RUN HOUSE.  THEY ALSO
ATTACKED THE GOOD FAITH OF THE GUARANTEED OFFERS OF THE PETITIONER FOR
FIRST-RUN PICTURES AND ATTRIBUTED UNIFORM ACTION TO INDIVIDUAL BUSINESS
JUDGMENT MOTIVATED BY THE DESIRE FOR MAXIMUM REVENUE.  THIS EVIDENCE,
TOGETHER WITH OTHER TESTIMONY OF AN EXPLANATORY NATURE, RAISED FACT
ISSUES REQUIRING THE TRIAL JUDGE TO SUBMIT THE ISSUE OF CONSPIRACY TO
THE JURY. 

PETITIONER NEXT CONTENDS THAT THE TRIAL JUDGE, WHEN INSTRUCTING THE
JURY, FAILED TO GIVE SUFFICIENT WEIGHT TO THE PARAMOUNT DECREES.  THE
DECREES WERE ADMITTED IN EVIDENCE PURSUANT TO SEC. 5 OF THE CLAYTON
ACT, (FN9) WHICH PROVIDES THAT A FINAL JUDGMENT OR DECREE RENDERED
AGAINST A DEFENDANT IN AN EQUITY SUIT BROUGHT BY THE UNITED STATES
UNDER THE ANTITRUST LAWS "SHALL BE PRIMA FACIE EVIDENCE AGAINST SUCH
DEFENDANT IN ANY SUIT OR PROCEEDING BROUGHT BY ANY OTHER PARTY AGAINST
SUCH DEFENDANT UNDER SAID LAWS AS TO ALL MATTERS RESPECTING WHICH SAID
JUDGMENT OR DECREE WOULD BE AN ESTOPPEL AS BETWEEN THE PARTIES THERETO
...  ."  EXERCISING HIS DISCRETION TO CHOOSE THE PRECISE MANNER OF
EXPLAINING A DECREE TO THE JURY, (FN10) THE TRIAL JUDGE INSTRUCTED
THAT: 

"  ...  THESE SAME DEFENDANTS HAD, AT A TIME PREVIOUS TO THE OPENING
OF THE CREST THEATRE, CONSPIRED TOGETHER IN RESTRAINT OF TRADE IN
VIOLATION OF THESE SAME ANTI-TRUST LAWS, IN RESTRICTING TO THEMSELVES
FIRST RUN AND IN ESTABLISHING CERTAIN CLEARANCES IN NUMEROUS PLACES
THROUGHOUT THE UNITED STATES.  THUS, THESE PROVEN FACTS, I INSTRUCT
YOU, BECOME PRIMA FACIE EVIDENCE IN THE PRESENT CASE, WHICH THE
PLAINTIFF MAY USE IN SUPPORT OF ITS CLAIM THAT WHAT THE DEFENDANTS HAVE
DONE SINCE THOSE DECREES, IN THE PRESENT CASE IN BALTIMORE, IS WITHIN
THE PROHIBITION OF THOSE EARLIER DECREES.   HOWEVER, THIS IS ONLY PRIMA
FACIE EVIDENCE.  THERE WAS NOT BEFORE THE COURT IN THE PRIOR CASE THE
PRESENT FACTUAL SITUATION WHICH IS BEFORE YOU NOW WITH RESPECT TO
BALTIMORE THEATRES.  THEREFORE, IT IS STILL NECESSARY IN THE PRESENT
CASE, IN ORDER FOR THE PLAINTIFF TO RECOVER, FOR IT TO PROVE TO YOUR
SATISFACTION, BY THE WEIGHT OF THE CREDIBLE EVIDENCE, THAT THESE
DEFENDANTS, OR SOME OF THEM, HAVE CONSPIRED IN AN UNREASONABLE MANNER
TO KEEP FIRST RUN EXHIBITIONS FROM THE PLAINTIFF, OR HAVE CONSPIRED TO
RESTRICT PLAINTIFF TO CLEARANCES WHICH ARE UNREASONABLE." 

THESE INSTRUCTIONS, PETITIONER ARGUES, WERE "SO SUPERFICIAL AND SO
LIMITED AS TO DEPRIVE PETITIONER OF ANY OF THE BENEFITS CONFERRED UPON
IT" BY SEC. 5. 

WE CANNOT AGREE.  THE TRIAL JUDGE INSTRUCTED, IN EFFECT, THAT THE
PARAMOUNT DECREES ALONE COULD NOT SUPPORT A RECOVERY BY PETITIONER;
ADDITIONAL EVIDENCE WAS REQUIRED TO RELATE THE PRESUMED PARAMOUNT
CONSPIRACY TO BALTIMORE AND TO THE CLAIMED DAMAGE PERIOD.  THE REASONS
FOR THIS ARE CLEAR.   THE PARAMOUNT DECREES DID NOT REST ON FINDINGS,
NOR WERE THE FINDINGS BASED ON EVIDENCE, OF A PARTICULAR CONSPIRACY
CONCERNING RESTRICTIONS ON RUNS AND CLEARANCES IN BALTIMORE THEATRES;
YET SUCH A CONSPIRACY IS THE NUB OF PLAINTIFF'S CLAIM.  THE PARAMOUNT
CASE INVOLVED A CONSPIRACY FOUND TO EXIST AS OF 1945, WHICH WAS
ENJOINED NO LATER THAN JUNE 25, 1948; (FN11) BUT THE CONSPIRACY ALLEGED
HERE INVOLVES A CLAIMED DAMAGE PERIOD RUNNING FROM FEBRUARY 1949 TO
MARCH 1950.  INDEED, THE RELEVANCY OF PARAMOUNT TO THE INSTANT CASE IS
SLIGHT.  WE NEED NOT PASS ON RESPONDENTS' CONTENTION THAT PETITIONER
WAS ENTITLED TO NO BENEFIT AT ALL FROM THE EARLIER DECREES.  WE MERELY
HOLD THAT PETITIONER WAS ENTITLED TO NO GREATER BENEFIT THAN THE TRIAL
JUDGE GAVE IT.  AFFIRMED. 

FN1  38 STAT. 731, 737, 15 U.S.C. SECS. 15, 26. 

FN2  RESPONDENTS ARE:  PARAMOUNT FILM DISTRIBUTING CORP., LOEW'S
INC., RKO RADIO PICTURES, INC., TWENTIETH CENTURY-FOX FILM CORP.,
UNIVERSAL FILM EXCHANGES, INC., UNITED ARTISTS CORP., WARNER BROS.
PICTURES DISTRIBUTING CORP., WARNER BROS. CIRCUIT MANAGEMENT CORP.,
COLUMBIA PICTURES CORP.

FN3  SECTIONS 1 AND 2 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED,
15 U.S.C. SECS. 1, 2, AND SEC. 2 OF THE CLAYTON ACT, 38 STAT. 730, AS
AMENDED, 15 U.S.C. SEC. 13.  PETITIONER HAS DROPPED THE ALLEGATION OF A
CLAYTON ACT VIOLATION. 

FN4  "RUNS ARE SUCCESSIVE EXHIBITIONS OF A FEATURE IN A GIVEN AREA,
FIRST-RUN BEING THE FIRST EXHIBITION IN THAT AREA, SECOND-RUN BEING THE
NEXT SUBSEQUENT, AND SO ON  ...  ."  UNITED STATES V. PARAMOUNT
PICTURES, INC., 334 U.S. 131, 144-145, N. 6 (1948). 

FN5  "A CLEARANCE IS THE PERIOD OF TIME, USUALLY STIPULATED IN
LICENSE CONTRACTS, WHICH MUST ELAPSE BETWEEN RUNS OF THE SAME FEATURE
WITHIN A PARTICULAR AREA OR IN SPECIFIED THEATRES."  UNITED STATES V.
PARAMOUNT PICTURES, INC., 334 U.S. 131, 144, N. 6 (1948). 

FN6  66 F. SUPP. 323 (1946), 70 F. SUPP. 53 (1946), REVERSED AND
REMANDED IN PART, 334 U.S. 131 (1948), 85 F. SUPP. 881 (1949),
AFFIRMED, 339 U.S. 974 (1950). 

FN7  A FIRST-RUN "DAY AND DATE" MEANS THAT TWO THEATRES EXHIBIT A
FIRST-RUN AT THE SAME TIME.  HAD PETITIONER'S REQUEST FOR A DAY-AND
DATE FIRST-RUN BEEN GRANTED, THE CREST AND A DOWNTOWN THEATRE WOULD
HAVE EXHIBITED THE SAME FEATURES SIMULTANEOUSLY. 

FN8  RAHL, CONSPIRACY AND THE ANTI-TRUST LAWS, 44 ILL. L. REV. 743
(1950). 

FN9 38 STAT. 731, 15 U.S.C. SEC. 16; NOTE, 65 HARV. L. REV. 1400
(1952). 

FN10  EMICH MOTORS CORP. V. GENERAL MOTORS CORP., 340 U.S. 558
(1951), 61 YALE L.J. 417 (1952). 

FN11  THE 1946 DECREE OF THE THREE-JUDGE DISTRICT COURT ENJOINED THE
DEFENDANTS, INTER ALIA, FROM CONSPIRING WITH RESPECT TO RUNS AND
CLEARANCES.  THE DECREE WAS STAYED BY MR. JUSTICE REED PENDING THE
APPEAL TO THIS COURT.  THE STAY EXPIRED, BY ITS OWN TERMS, WHEN THE
COURT RENDERED ITS DECISION ON MAY 3, 1948.  BUT THIS DECISION,
REMANDING THE CASE TO THE DISTRICT COURT FOR FURTHER CONSIDERATION, IN
NO WAY ALTERED THE LOWER COURT'S FINDINGS AS TO RUNS AND CLEARANCES. 
334 U.S. 131, 144-148; 85 F. SUPP. 881, 885, 897.  HENCE, THE
INJUNCTIVE PROVISIONS OF THE 1946 DECREE CONCERNING RUNS AND CLEARANCES
WERE LEFT INTACT.  FOLLOWING THIS COURT'S DECISION, THE ORDER ON
MANDATE WAS ENTERED IN THE DISTRICT COURT ON JUNE 25, 1948. 

MR. JUSTICE BLACK WOULD REVERSE, BEING OF OPINION THAT THE TRIAL
JUDGE'S CHARGE TO THE JURY AS TO THE BURDEN OF PROOF RESTING ON
PETITIONER DEPRIVED IT OF A LARGE PART OF THE BENEFITS INTENDED TO BE
AFFORDED BY THE PRIMA FACIE EVIDENCE PROVISION OF SEC. 5 OF THE CLAYTON
ACT. 

MR. JUSTICE DOUGLAS WITHDREW FROM THE CASE AFTER ITS SUBMISSION AND
TOOK NO PART IN THIS DECISION. 
..END :










HOWELL CHEVROLET CO. V. NATIONAL LABOR RELATIONS BOARD 346 U.S. 482 


NO. 34.  ARGUED NOVEMBER 12, 1953 - DECIDED DECEMBER 14, 1953 - 204 F.2D
79, AFFIRMED. 


ON THE FACTS IN THIS CASE, THE NATIONAL LABOR RELATIONS ACT HELD
APPLICABLE TO A LOCAL RETAIL AUTOMOBILE DEALER OPERATING AS AN INTEGRAL
PART OF THE MANUFACTURER'S NATIONAL SYSTEM OF DISTRIBUTION.  PP. 482
484. 

HOWELL CHEVROLET CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
REED. 

THE PETITIONER HOWELL CHEVROLET COMPANY RETAILS CHEVROLET AUTOMOBILES
AND PARTS IN GLENDALE, CALIFORNIA.  AFTER HEARINGS, THE NATIONAL LABOR
RELATIONS BOARD FOUND HOWELL GUILTY OF UNFAIR LABOR PRACTICES IN
REFUSING TO BARGAIN WITH ITS EMPLOYEES AND INTIMIDATING THEM IN VARIOUS
WAYS IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT AS AMENDED.*  AN
APPROPRIATE ORDER WAS ISSUED.  95 N.L.R.B. 410.  THE COURT OF APPEALS
FOR THE NINTH CIRCUIT ENFORCED THE BOARD'S ORDER, 204 F.2D 79,
REJECTING THE CONTENTION THAT THE ACT COULD NOT BE APPLIED TO HOWELL. 
ON SIMILAR FACTS THE SIXTH CIRCUIT HELD THAT THE LABOR BOARD HAD NO
JURISDICTION OVER A LOCAL FORD AUTOMOBILE DEALER.  LABOR BOARD V. BILL
DANIELS, INC., 202 F.2D 579.  WE GRANTED CERTIORARI TO CONSIDER THE
SINGLE QUESTION PRESENTED BY PETITIONER - WHETHER THE ACT IS APPLICABLE
TO RETAIL AUTOMOBILE DEALERS LIKE HOWELL.  345 U.S. 955. 

*61 STAT. 136, 29 U.S.C. (SUPP. V) SEC. 151 ET SEQ. 

"ANY PERSON" FROM ADVERSELY "AFFECTING COMMERCE" BY UNFAIR LABOR
PRACTICES "TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING
COMMERCE OR THE FREE FLOW OF COMMERCE."  THE BOARD FOUND THAT HOWELL'S
UNFAIR LABOR PRACTICES TENDED TO DO THIS.  AMONG OTHERS, THE FOLLOWING
FACTS UNDERLIE THAT FINDING: 

HOWELL BOUGHT ITS NEW CHEVROLETS FROM A GENERAL MOTORS ASSEMBLY PLANT
LOCATED IN CALIFORNIA AND ITS SPARE PARTS AND ACCESSORIES WERE
DELIVERED TO IT FROM GENERAL MOTORS WAREHOUSES IN CALIFORNIA.  FORTY
THREE PERCENT OF ALL THIS MERCHANDISE WAS MANUFACTURED IN OTHER STATES
AND SHIPPED INTO CALIFORNIA FOR ASSEMBLY OR DISTRIBUTION.  DURING 1949
HOWELL'S PURCHASES FROM GENERAL MOTORS EXCEEDED $1,000,000. 

HOWELL'S LOCAL RETAIL ESTABLISHMENT WAS CLOSELY SUPERVISED BY GENERAL
MOTORS.  SWEEPING CONTROL OF THE BUSINESS WAS RESERVED BY GENERAL
MOTORS IN A "DIRECT DEALER SELLING AGREEMENT."  HOWELL HAD TO SIGN THIS
AGREEMENT TO GET HIS "NON-EXCLUSIVE PRIVILEGE OF SELLING NEW CHEVROLET
MOTOR VEHICLES AND CHASSIS" AND "PARTS AND ACCESSORIES."  THE AGREEMENT
REQUIRED HOWELL TO MAKE VARIED AND DETAILED REPORTS ABOUT HIS BUSINESS
AFFAIRS, TO DEVOTE FULL TIME TO CHEVROLET SALES, TO KEEP HIS SALES
FACILITIES AT A LOCATION AND CONDUCT THE BUSINESS IN A MANNER THAT
SATISFIED GENERAL MOTORS, TO PERMIT GENERAL MOTORS TO INSPECT HOWELL'S
BOOKS, ACCOUNTS, FACILITIES, STOCKS AND ACCESSORIES AND TO KEEP SUCH
UNIFORM ACCOUNTING SYSTEMS AS GENERAL MOTORS MIGHT PRESCRIBE.  MANY
OTHER TERMS OF THE AGENCY AGREEMENT ALSO EMPHASIZED THE INTERDEPENDENCE
OF HOWELL'S LOCAL AND GENERAL MOTORS' NATIONAL ACTIVITIES. 

ALL THIS EVIDENCE CAUSED THE BOARD TO CONCLUDE THAT HOWELL WAS "AN
INTEGRAL PART" OF GENERAL MOTORS' NATIONAL SYSTEM OF DISTRIBUTION. 
UNDER THESE CIRCUMSTANCES THE BOARD WAS JUSTIFIED IN FINDING THAT
HOWELL'S REPEATED UNFAIR LABOR PRACTICES TENDED TO LEAD TO DISPUTES
BURDENING OR OBSTRUCTING COMMERCE AMONG THE STATES.  IT FOLLOWS THAT
THE BOARD HAD JURISDICTION TO ACT UNDER THE FACTS IT FOUND.  AFFIRMED. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :



GARNER, TRADING AS CENTRAL STORAGE & TRANSFER CO. V. TEAMSTERS,
CHAUFFEURS AND HELPERS LOCAL UNION NO. 776 (A.F.L.) 346 U.S. 485 


NO. 56.  ARGUED OCTOBER 20-21, 1953 - DECIDED DECEMBER 14, 1953 - 373
PA. 19, 94 A.2D 893, AFFIRMED. 


PETITIONERS WERE ENGAGED IN PENNSYLVANIA IN AN INTERSTATE TRUCKING
BUSINESS.  ONLY A SMALL MINORITY OF ITS EMPLOYEES WERE MEMBERS OF
RESPONDENT UNION.  NO LABOR DISPUTE OR STRIKE WAS IN PROGRESS, AND
PETITIONERS HAD NOT OBJECTED TO THEIR EMPLOYEES JOINING THE UNION. 
RESPONDENTS KEPT TWO PICKETS AT PETITIONERS' LOADING PLATFORM, TO
COERCE PETITIONERS INTO COMPELLING OR INFLUENCING THEIR EMPLOYEES TO
JOIN THE UNION.  THE PICKETING WAS PEACEFUL, BUT PETITIONERS' BUSINESS
FELL OFF 95% BECAUSE EMPLOYEES OF OTHER CARRIERS REFUSED TO CROSS THE
PICKET LINE.  HELD: PETITIONERS' GRIEVANCE WAS WITHIN THE JURISDICTION
OF THE NATIONAL LABOR RELATIONS BOARD TO PREVENT UNFAIR LABOR PRACTICES
UNDER THE LABOR MANAGEMENT RELATIONS ACT, AND WAS NOT SUBJECT TO RELIEF
BY INJUNCTION IN THE STATE COURTS.  PP. 486-491. 

(A)  THE NATIONAL LABOR RELATIONS BOARD WAS VESTED WITH POWER TO
ENTERTAIN PETITIONERS' GRIEVANCE, TO ISSUE ITS OWN COMPLAINT AGAINST
RESPONDENTS, AND, PENDING FINAL HEARING, TO SEEK FROM A FEDERAL
DISTRICT COURT AN INJUNCTION TO PREVENT IRREPARABLE INJURY TO
PETITIONERS.  PP. 488-491. 

(B)  THE SAME CONSIDERATIONS WHICH PROHIBIT FEDERAL COURTS FROM
INTERVENING IN SUCH CASES, ESCEPT BY WAY OF REVIEW OR ON APPLICATION OF
THE NATIONAL LABOR RELATIONS BOARD, AND WHICH EXCLUDE STATE
ADMINISTRATIVE BODIES FROM ASSUMING CONTROL OF SUCH MATTERS, PRECLUDE
STATE COURTS FROM DOING SO. PP. 490-491. 

(C)  WHEN FEDERAL POWER CONSTITUTIONALLY IS EXERTED FOR THE
PROTECTION OF PUBLIC OR PRIVATE INTERESTS, OR BOTH, IT BECOMES THE
SUPREME LAW OF THE LAND AND CANNOT BE CURTAILED, CIRCUMVENTED OR
EXTENDED BY A STATE PROCEDURE MERELY BECAUSE SUCH PROCEDURE WILL APPLY
SOME DOCTRINE OF PRIVATE RIGHT.  PP. 492-501. 

(D)  CONGRESS, IN ENACTING SUCH LEGISLATION AS THE LABOR MANAGEMENT
RELATIONS ACT, CAN SAVE ALTERNATIVE OR SUPPLEMENTAL STATE REMEDIES BY
EXPRESS TERMS, OR BY SOME CLEAR IMPLICATION, IF IT SEES FIT.  P. 501. 

GARNER ET AL., TRADING AS CENTRAL STORAGE & TRANSFER CO., V. TEAMSTERS,
CHAUFFEURS AND HELPERS LOCAL UNION NO. 776 (A.F.L.)  ET AL. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

A DECISION OF THE SUPREME COURT OF PENNSYLVANIA HAS DEPRIVED
PETITIONERS OF AN INJUNCTION WHICH A LOWER EQUITY COURT OF THE STATE
HAD GRANTED TO PROHIBIT CERTAIN PICKETING BY RESPONDENT LABOR UNION. 
(FN1)  THE COURT BELOW REVIEWED THE NATIONAL LABOR MANAGEMENT RELATIONS
ACT AND OUR APPLICABLE DECISIONS, AND CONCLUDED:  "IN OUR OPINION SUCH
PROVISIONS FOR A COMPREHENSIVE REMEDY PRECLUDED ANY STATE ACTION BY WAY
OF A DIFFERENT OR ADDITIONAL REMEDY FOR THE CORRECTION OF THE IDENTICAL
GRIEVANCE."  THE CORRECTNESS OF THIS RULING IS THE SOLE ISSUE HERE.  WE
GRANTED CERTIORARI.  (FN2) 

PETITIONERS WERE ENGAGED IN THE TRUCKING BUSINESS AND HAD TWENTY-FOUR
EMPLOYEES, FOUR OF WHOM WERE MEMBERS OF RESPONDENT UNION.  THE TRUCKING
OPERATIONS FORMED A LINK TO AN INTERSTATE RAILROAD.  NO CONTROVERSY,
LABOR DISPUTE OR STRIKE WAS IN PROGRESS, AND AT NO TIME HAD PETITIONERS
OBJECTED TO THEIR EMPLOYEES JOINING THE UNION.  RESPONDENTS, HOWEVER,
PLACED ROTATING PICKETS, TWO AT A TIME, AT PETITIONERS' LOADING
PLATFORM.  NONE WERE EMPLOYEES OF PETITIONERS.  THEY CARRIED SIGNS
READING "LOCAL 776 TEAMSTERS UNION (A.F. OF L.)  WANTS EMPLOYEES OF
CENTRAL STORAGE & TRANSFER CO. TO JOIN THEM TO GAIN UNION WAGES, HOURS
AND WORKING CONDITIONS."  PICKETING WAS ORDERLY AND PEACEFUL, BUT
DRIVERS FOR OTHER CARRIERS REFUSED TO CROSS THIS PICKET LINE AND, AS
MOST OF PETITIONERS' INTERCHANGE OF FREIGHT WAS WITH UNIONIZED
CONCERNS, THEIR BUSINESS FELL OFF AS MUCH AS 95%.  THE COURTS BELOW
FOUND THAT RESPONDENTS' PURPOSE IN PICKETING WAS TO COERCE PETITIONERS
INTO COMPELLING OR INFLUENCING THEIR EMPLOYEES TO JOIN THE UNION. 

THE EQUITY COURT HELD THAT RESPONDENTS' CONDUCT VIOLATED THE
PENNSYLVANIA LABOR RELATIONS ACT.  (FN3)  THE SUPREME COURT OF THE
COMMONWEALTH HELD, QUITE CORRECTLY, WE THINK, THAT PETITIONERS'
GRIEVANCE FELL WITHIN THE JURISDICTION OF THE NATIONAL LABOR RELATIONS
BOARD TO PREVENT UNFAIR LABOR PRACTICES.  IT THEREFORE INFERRED THAT
STATE REMEDIES WERE PRECLUDED.  THE DISSENTING JUDGE THOUGHT THE
FEDERAL REMEDY INADEQUATE, AS A PRACTICAL MATTER, BECAUSE THE SLOW
ADMINISTRATIVE PROCESSES OF THE NATIONAL LABOR RELATIONS BOARD COULD
NOT PREVENT IMMINENT AND IRREPARABLE DAMAGE TO PETITIONERS.   SINCE OUR
DECISIONS HAVE NOT SPECIFICALLY DENIED THE POWER OF STATE COURTS TO
ENJOIN SUCH INJURY, HE THOUGHT THE INJUNCTION SHOULD BE SUSTAINED. 

THE NATIONAL LABOR MANAGEMENT RELATIONS ACT, AS WE HAVE BEFORE
POINTED OUT, (FN4) LEAVES MUCH TO THE STATES, THOUGH CONGRESS HAS
REFRAINED FROM TELLING US HOW MUCH.  WE MUST SPELL OUT FROM CONFLICTING
INDICATIONS OF CONGRESSIONAL WILL THE AREA IN WHICH STATE ACTION IS
STILL PERMISSIBLE. 

THIS IS NOT AN INSTANCE OF INJURIOUS CONDUCT WHICH THE NATIONAL LABOR
RELATIONS BOARD IS WITHOUT EXPRESS POWER TO PREVENT AND WHICH THEREFORE
EITHER IS "GOVERNABLE BY THE STATE OR IT IS ENTIRELY UNGOVERNED."  IN
SUCH CASES WE HAVE DECLINED TO FIND AN IMPLIED EXCLUSION OF STATE
POWERS.  INTERNATIONAL UNION V. WISCONSIN BOARD, 336 U.S. 245, 254. 
NOR IS THIS A CASE OF MASS PICKETING, THREATENING OF EMPLOYEES,
OBSTRUCTING STREETS AND HIGHWAYS, OR PICKETING HOMES.  WE HAVE HELD
THAT THE STATE STILL MAY EXERCISE "ITS HISTORIC POWERS OVER SUCH
TRADITIONALLY LOCAL MATTERS AS PUBLIC SAFETY AND ORDER AND THE USE OF
STREETS AND HIGHWAYS."  ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315
U.S. 740, 749.  NOTHING SUGGESTS THAT THE ACTIVITY ENJOINED THREATENED
A PROBABLE BREACH OF THE STATE'S PEACE OR WOULD CALL FOR EXTRAORDINARY
POLICE MEASURES BY STATE OR CITY AUTHORITY.  NOR IS THERE ANY
SUGGESTION THAT RESPONDENTS' PLEA OF FEDERAL JURISDICTION AND PRE
EMPTION WAS FRIVOLOUS AND DILATORY, OR THAT THE FEDERAL BOARD WOULD
DECLINE TO EXERCISE ITS POWERS ONCE ITS JURISDICTION WAS INVOKED. 

CONGRESS HAS TAKEN IN HAND THIS PARTICULAR TYPE OF CONTROVERSY WHERE
IT AFFECTS INTERSTATE COMMERCE.  IN LANGUAGE ALMOST IDENTICAL TO PARTS
OF THE PENNSYLVANIA STATUTE, IT HAS FORBIDDEN LABOR UNIONS TO EXERT
CERTAIN TYPES OF COERCION ON EMPLOYEES THROUGH THE MEDIUM OF THE
EMPLOYER.  (FN5) IT IS NOT NECESSARY OR APPROPRIATE FOR US TO SURMISE
HOW THE NATIONAL LABOR RELATIONS BOARD MIGHT HAVE DECIDED THIS
CONTROVERSY HAD PETITIONERS PRESENTED IT TO THAT BODY.  THE POWER AND
DUTY OF PRIMARY DECISION LIES WITH THE BOARD, NOT WITH US.  BUT IT IS
CLEAR THAT THE BOARD WAS VESTED WITH POWER TO ENTERTAIN PETITIONERS'
GRIEVANCE, TO ISSUE ITS OWN COMPLAINT AGAINST RESPONDENTS AND, PENDING
FINAL HEARING, TO SEEK FROM THE UNITED STATES DISTRICT COURT AN
INJUNCTION TO PREVENT IRREPARABLE INJURY TO PETITIONERS WHILE THEIR
CASE WAS BEING CONSIDERED.  (FN6)  THE QUESTION THEN IS WHETHER THE
STATE, THROUGH ITS COURTS, MAY ADJUDGE THE SAME CONTROVERSY AND EXTEND
ITS OWN FORM OF RELIEF. 

CONGRESS DID NOT MERELY LAY DOWN A SUBSTANTIVE RULE OF LAW TO BE
ENFORCED BY ANY TRIBUNAL COMPETENT TO APPLY LAW GENERALLY TO THE
PARTIES.  IT WENT ON TO CONFIDE PRIMARY INTERPRETATION AND APPLICATION
OF ITS RULES TO A SPECIFIC AND SPECIALLY CONSTITUTED TRIBUNAL AND
PRESCRIBED A PARTICULAR PROCEDURE FOR INVESTIGATION, COMPLAINT AND
NOTICE, AND HEARING AND DECISION, INCLUDING JUDICIAL RELIEF PENDING A
FINAL ADMINISTRATIVE ORDER.  CONGRESS EVIDENTLY CONSIDERED THAT
CENTRALIZED ADMINISTRATION OF SPECIALLY DESIGNED PROCEDURES WAS
NECESSARY TO OBTAIN UNIFORM APPLICATION OF ITS SUBSTANTIVE RULES AND TO
AVOID THESE DIVERSITIES AND CONFLICTS LIKELY TO RESULT FROM A VARIETY
OF LOCAL PROCEDURES AND ATTITUDES TOWARD LABOR CONTROVERSIES.  INDEED,
PENNSYLVANIA PASSED A STATUTE THE SAME YEAR AS ITS LABOR RELATIONS ACT
RECITING ABUSES OF THE INJUNCTION IN LABOR LITIGATIONS ATTRIBUTABLE
MORE TO PROCEDURE AND USAGE THAN TO SUBSTANTIVE RULES.  (FN7)  A
MULTIPLICITY OF TRIBUNALS AND A DIVERSITY OF PROCEDURES ARE QUITE AS
APT TO PRODUCE INCOMPATIBLE OR CONFLICTING ADJUDICATIONS AS ARE
DIFFERENT RULES OF SUBSTANTIVE LAW.  THE SAME REASONING WHICH PROHIBITS
FEDERAL COURTS FROM INTERVENING IN SUCH CASES, EXCEPT BY WAY OF REVIEW
OR ON APPLICATION OF THE FEDERAL BOARD, PRECLUDES STATE COURTS FROM
DOING SO.  CF. MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41;
AMALGAMATED UTILITY WORKERS V. CONSOLIDATED EDISON CO., 309 U.S. 261. 
AND THE REASONS FOR EXCLUDING STATE ADMINISTRATIVE BODIES FROM ASSUMING
CONTROL OF MATTERS EXPRESSLY PLACED WITHIN THE COMPETENCE OF THE
FEDERAL BOARD ALSO EXCLUDE STATE COURTS FROM LIKE ACTION.  CF.
BETHLEHEM STEEL CO. V. NEW YORK BOARD, 330 U.S. 767. 

THIS CASE WOULD WARRANT LITTLE FURTHER DISCUSSION EXCEPT FOR A
PERSUASIVELY PRESENTED ARGUMENT THAT THE NATIONAL LABOR RELATIONS BOARD
ENFORCES ONLY A PUBLIC RIGHT ON BEHALF OF THE PUBLIC INTEREST, WHILE
STATE EQUITY POWERS ARE INVOKED BY A PRIVATE PARTY TO PROTECT A PRIVATE
RIGHT.  THE PUBLIC RIGHT, IT IS SAID, IS TO DISTINCT AND DISSIMILAR
FROM THE PRIVATE RIGHT THAT FEDERAL OCCUPANCY OF ONE FIELD DOES NOT
DEBAR A STATE FROM CONTINUING TO EXERCISE ITS CONVENTIONAL EQUITY
POWERS OVER THE OTHER.  SUPPORT FOR THIS VIEW IS ACCUMULATED FROM THE
ACT ITSELF, ITS LEGISLATIVE HISTORY, SOME JUDICIAL EXPRESSION, AND
PROFESSIONAL COMMENTARY.  (FN8) 

IT IS TRUE THAT THE ACT'S PREAMBLE EMPHASIZES THE PREDOMINANCE OF A
PUBLIC INTEREST OVER PRIVATE RIGHTS OF EITHER PARTY TO INDUSTRIAL
STRIFE, AND DECLARES ITS PURPOSE TO PROSCRIBE PRACTICES ON THE PART OF
LABOR AND MANAGEMENT WHICH ARE INIMICAL TO THE GENERAL WELFARE, AND TO
PROTECT THE RIGHTS OF THE PUBLIC IN CONNECTION WITH LABOR DISPUTES
AFFECTING COMMERCE.  (FN9)  AND SOME LANGUAGE OF THE ACT SEEMS TO
CONTEMPLATE A REMEDY TO SUPPLEMENT, RATHER THAN TO SUBSTITUTE FOR,
EXISTING ONES.  (FN10) 

ALSO, THE SENATE COMMITTEE, REPORTING THE BILL, SAID: 

"AFTER A CAREFUL CONSIDERATION OF THE EVIDENCE AND PROPOSALS BEFORE
US, THE COMMITTEE HAS CONCLUDED THAT FIVE SPECIFIC PRACTICES BY LABOR
ORGANIZATIONS AND THEIR AGENTS, AFFECTING COMMERCE, SHOULD BE DEFINED
AS UNFAIR LABOR PRACTICES.  BECAUSE OF THE NATURE OF CERTAIN OF THESE
PRACTICES, ESPECIALLY JURISDICTIONAL DISPUTES, AND SECONDARY BOYCOTTS
AND STRIKES FOR SPECIFICALLY DEFINED OBJECTIVES, THE COMMITTEE IS
CONVINCED THAT ADDITIONAL PROCEDURES MUST BE MADE AVAILABLE UNDER THE
NATIONAL LABOR RELATIONS ACT IN ORDER ADEQUATELY TO PROTECT THE PUBLIC
WELFARE WHICH IS INEXTRICABLY INVOLVED IN LABOR DISPUTES. 

"  ...  HENCE WE HAVE PROVIDED THAT THE BOARD, ACTING IN THE PUBLIC
INTEREST AND NOT IN VINDICATION OF PURELY PRIVATE RIGHTS, MAY SEEK
INJUNCTIVE RELIEF IN THE CASE OF ALL TYPES OF UNFAIR LABOR PRACTICES
AND THAT IT SHALL ALSO SEEK SUCH RELIEF IN THE CASE OF STRIKES AND
BOYCOTTS DEFINED AS UNFAIR LABOR PRACTICES  ...  ."  (FN11) 

WE ARE ALSO REMINDED THAT THIS COURT, IN AMALGAMATED UTILITY WORKERS
V. CONSOLIDATED EDISON CO., SUPRA, AT 265, RECOGNIZED THIS DISTINCTION
BY SAYING, "THE BOARD AS A PUBLIC AGENCY ACTING IN THE PUBLIC INTEREST,
NOT ANY PRIVATE PERSON OR GROUP, NOT ANY EMPLOYEE OR GROUP OF
EMPLOYEES, IS CHOSEN AS THE INSTRUMENT TO ASSURE PROTECTION FROM THE
DESCRIBED UNFAIR CONDUCT IN ORDER TO REMOVE OBSTRUCTIONS TO INTERSTATE
COMMERCE."  (FN12)  VARIOUS STATEMENTS MAY ALSO BE CITED IN WHICH THE
BOARD WOULD APPEAR TO HAVE RECOGNIZED A DISTINCTION BETWEEN PUBLIC AND
PRIVATE RIGHTS OR INTEREST IN LABOR CONTROVERSIES.  (FN13) 

IT OFTEN IS CONVENIENT TO DESCRIBE PARTICULAR CLAIMS AS INVOKING
PUBLIC OR PRIVATE RIGHTS, AND THIS HANDY CLASSIFICATION IS DOUBTLESS
VALID FOR SOME PURPOSES.  BUT USUALLY THE REAL SIGNIFICANCE AND LEGAL
CONSEQUENCE OF EACH TERM WILL DEPEND UPON ITS CONTEXT AND THE NATURE OF
THE INTERESTS IT IS INVOKED TO DISTINGUISH. 

STATUTES MAY BE CALLED PUBLIC BECAUSE THE RIGHTS CONFERRED ARE OF
GENERAL APPLICATION, WHILE LAWS KNOWN AS PRIVATE AFFECT FEW OR SELECTED
INDIVIDUALS OR LOCALITIES.  (FN14)  OR PUBLIC RIGHTS MAY MEAN THOSE
ASSERTED BY THE STATE AS A PARTY EITHER IN CRIMINAL OR CIVIL
PROCEEDINGS.  (FN15)  AGAIN, THE BODY OF LEARNING WE CALL CONFLICT OF
LAWS ELSEWHERE IS CALLED PRIVATE INTERNATIONAL LAW BECAUSE IT IS
APPLIED TO ADJUSTMENT OF PRIVATE INTERESTS, WHILE PUBLIC INTERNATIONAL
LAW IS APPLICABLE TO THE RELATIONS BETWEEN STATES.  (FN16)  AT OTHER
TIMES, RIGHTS WILL BE CHARACTERIZED BY THE BODY OF LAW FROM WHICH THEY
ARE DERIVED; BUT SUCH DISTINCTION BETWEEN PUBLIC AND PRIVATE LAW IS
LESS SHARP AND SIGNIFICANT IN THIS COUNTRY, WHERE ONE SYSTEM OF LAW
COURTS APPLIES BOTH, THAN IN THE CONTINENTAL PRACTICE WHICH ADMINISTERS
PUBLIC LAW THROUGH A SYSTEM OF COURTS SEPARATE FROM THAT WHICH DEALS
WITH PRIVATE LAW QUESTIONS.  (FN17)  PERHAPS IN THIS COUNTRY THE MOST
USUAL DIFFERENTIATION IS BETWEEN THE LEGAL RIGHTS OR DUTIES ENFORCED
THROUGH THE ADMINISTRATIVE PROCESS AND THOSE LEFT TO ENFORCEMENT ON
PRIVATE INITIATIVE IN THE LAW COURTS.  (FN18) 

FEDERAL LAW HAS LARGELY DEVELOPED AND EXPANDED AS PUBLIC LAW IN THIS
LATTER SENSE.  IT CONSISTS OF SUBSTITUTING FEDERAL STATUTE LAW APPLIED
BY ADMINISTRATIVE PROCEDURES IN THE PUBLIC INTEREST IN THE PLACE OF
INDIVIDUAL SUITS IN COURTS TO ENFORCE COMMON-LAW DOCTRINES OF PRIVATE
RIGHT.  THIS EVOLUTION, SHARPLY CONTESTED, AND PRESENTING MANY
PROBLEMS, HAS TAKEN PLACE IN MANY OTHER FIELDS AS WELL AS IN LABOR
LAW.  FOR EXAMPLE, THE COMMON LAW RECOGNIZED A SHIPPER'S RIGHT TO HAVE
A COMMON CARRIER TRANSPORT HIS GOODS FOR REASONABLE RATES, AND THE
RIGHT WAS ENFORCEABLE IN THE COURTS.  (FN19)  BUT THIS PRIVATE RIGHT
PROVED TOO COSTLY AND SPORADIC TO BE EFFECTIVE AS TRANSPORT BECAME A
VAST ENTERPRISE.  AS TO INTERSTATE COMMERCE, THIS RIGHT WAS SUPERSEDED
BY THE INTERSTATE COMMERCE ACT, WHICH, IN THE PUBLIC INTEREST,
AUTHORIZED A PUBLIC TRIBUNAL TO PRESCRIBE REASONABLE RATES AND TO AWARD
REPARATIONS FOR EXCESSIVE ONES.  (FN20)  OF COURSE, THIS PUT AN END TO
PRIVATE LITIGATION IN STATE AND FEDERAL COURTS TO DETERMINE, IN THE
FIRST INSTANCE, WHAT RATE FOR CARRIAGE IS REASONABLE, ALTHOUGH THAT ACT
DID NOT EXPRESSLY ABOLISH THE PRE-EXISTING PRIVATE RIGHTS.  (FN21) 

EVEN IF WE WERE TO ACCEPT AS SIGNIFICANT THE DISTINCTION BETWEEN
PUBLIC AND PRIVATE RIGHTS AND REGARD THE NATIONAL LABOR MANAGEMENT
RELATIONS ACT AS ENFORCING ONLY PUBLIC RIGHTS, THE SAME REASONING WOULD
PREVENT US FROM ASSUMING THAT THE PENNSYLVANIA LABOR STATUTE DECLARES
RIGHTS OF ANY DIFFERENT CATEGORY.  IT IS TRUE THAT PETITIONERS SOUGHT
AN INJUNCTION TO RESTRAIN DAMAGE TO THEIR OWN BUSINESS.  BUT THE
INJUNCTION APPEARS TO HAVE BEEN GRANTED BECAUSE THE PICKETING VIOLATED
THE STATE STATUTE, AND NEITHER THE STATUTORY LANGUAGE NOR THE OPINION
OF THE PENNSYLVANIA SUPREME COURT WARRANTS A CONCLUSION THAT THE
STATUTE PROTECTS PRIVATE RIGHTS, AS MOST AUTHORITIES WOULD DEFINE THE
TERM.  PASSED IN 1937, THE STATUTE RECITES THAT THE GROWING INEQUALITY
OF BARGAINING POWER BETWEEN EMPLOYERS AND EMPLOYEES "SUBSTANTIALLY AND
ADVERSELY AFFECTS THE GENERAL WELFARE OF THE STATE" AND THAT CERTAIN
PRACTICES TEND TO CREATE "INDUSTRIAL STRIFE AND UNREST, WHICH ARE
INIMICAL TO THE PUBLIC SAFETY AND WELFARE, AND FREQUENTLY ENDANGER THE
PUBLIC HEALTH."  ENCOURAGEMENT OF COLLECTIVE BARGAINING IS DECLARED
"THE PUBLIC POLICY OF THE STATE."  AND ONE SUBSECTION READS:  "THIS ACT
SHALL BE DEEMED AN EXERCISE OF THE POLICE POWER OF THE COMMONWEALTH OF
PENNSYLVANIA FOR THE PROTECTION OF THE PUBLIC WELFARE, PROSPERITY,
HEALTH, AND PEACE OF THE PEOPLE OF THE COMMONWEALTH."  (FN22)    THIS
LANGUAGE IS COMPARABLE, ON THE STATE LEVEL, TO THE LANGUAGE IN THE
FEDERAL ACT.  IF CONGRESS WAS PROTECTING A PUBLIC, AS OPPOSED TO A
PURELY PRIVATE, INTEREST, THE SAME COULD BE SAID OF THE PENNSYLVANIA
LEGISLATURE.  THE STATE SUPREME COURT HAS NOT SAID OTHERWISE.  (FN23)
THE COURT OPINION, OF COURSE, DID NOT ANALYZE IN DETAIL THE STATE LAW
BASIS FOR INJUNCTION IN THIS CASE BECAUSE IT FOUND LACK OF STATE
JURISDICTION, AND THE DISSENTING OPINION DISCUSSED THE JURISDICTIONAL
ASPECT OF THE CASE AND DID NOT REACH THE MERITS.  BUT WE FIND NO BASIS
AT ALL FOR PETITIONERS' ARGUMENT THAT THE EQUITY COURTS, WHICH IN
PENNSYLVANIA ENFORCE THE LABOR RELATIONS STATUTE, WOULD ENFORCE RIGHTS
OF ANY DIFFERENT CATEGORY, OR OF ANY LESS PUBLIC OR MORE PRIVATE
CHARACTER, THAN THOSE ENFORCED BY THE NATIONAL LABOR RELATIONS BOARD. 

FURTHER, EVEN IF WE WERE TO ASSUME, WITH PETITIONERS, THAT DISTINCTLY
PRIVATE RIGHTS WERE ENFORCED BY THE STATE AUTHORITIES, IT DOES NOT
FOLLOW THAT THE STATE AND FEDERAL AUTHORITIES MAY SUPPLEMENT EACH OTHER
IN CASES OF THIS TYPE.  THE CONFLICT LIES IN REMEDIES, NOT RIGHTS.  THE
SAME PICKETING MAY INJURE BOTH PUBLIC AND PRIVATE RIGHTS.  BUT WHEN TWO
SEPARATE REMEDIES ARE BROUGHT TO BEAR ON THE SAME ACTIVITY, A CONFLICT
IS IMMINENT.  IT MUST BE REMEMBERED THAT PETITIONERS' STATE REMEDY WAS
A SUIT FOR AN INJUNCTION PROHIBITING THE PICKETING.  THE FEDERAL BOARD,
IF IT SHOULD FIND A VIOLATION OF THE NATIONAL LABOR MANAGEMENT
RELATIONS ACT, WOULD ISSUE A CEASE-AND-DESIST ORDER AND PERHAPS OBTAIN
A TEMPORARY INJUNCTION TO PRESERVE THE STATUS QUO.  OR IF IT FOUND NO
VIOLATION, IT WOULD DISMISS THE COMPLAINT, THEREBY SANCTIONING THE
PICKETING.  TO AVOID FACING A CONFLICT BETWEEN THE STATE AND FEDERAL
REMEDIES, WE WOULD HAVE TO ASSUME EITHER THAT BOTH AUTHORITIES WILL
ALWAYS AGREE AS TO WHETHER THE PICKETING SHOULD CONTINUE, OR THAT THE
STATE'S TEMPORARY INJUNCTION WILL BE DISSOLVED AS SOON AS THE FEDERAL
BOARD ACTS.  (FN24)  BUT EXPERIENCE GIVES NO ASSURANCE OF EITHER
ALTERNATIVE, AND THERE IS NO INDICATION THAT THE STATUTE LEFT IT OPEN
FOR SUCH CONFLICTS TO ARISE. 

THE DETAILED PRESCRIPTION OF A PROCEDURE FOR RESTRAINT OF SPECIFIED
TYPES OF PICKETING WOULD SEEM TO IMPLY THAT OTHER PICKETING IS TO BE
FREE OF OTHER METHODS AND SOURCES OF RESTRAINT.  FOR THE POLICY OF THE
NATIONAL LABOR MANAGEMENT RELATIONS ACT IS NOT TO CONDEMN ALL PICKETING
BUT ONLY THAT ASCERTAINED BY ITS PRESCRIBED PROCESSES TO FALL WITHIN
ITS PROHIBITIONS.  OTHERWISE, IT IS IMPLICIT IN THE ACT THAT THE PUBLIC
INTEREST IS SERVED BY FREEDOM OF LABOR TO USE THE WEAPON OF PICKETING. 
FOR A STATE TO IMPINGE ON THE AREA OF LABOR COMBAT DESIGNED TO BE FREE
IS QUITE AS MUCH AN OBSTRUCTION OF FEDERAL POLICY AS IF THE STATE WERE
TO DECLARE PICKETING FREE FOR PURPOSES OR BY METHODS WHICH THE FEDERAL
ACT PROHIBITS. 

WHATEVER PURPOSE A CLASSIFICATION OF RIGHTS AS PUBLIC OR PRIVATE MAY
SERVE, IT IS TOO UNSETTLED AND AMBIGUOUS TO INTRODUCE INTO
CONSTITUTIONAL LAW AS A DIVIDING LINE BETWEEN FEDERAL AND STATE POWER
OR JURISDICTION.  PERHAPS THE CLEAREST THING TO EMERGE FROM THE BEST
CONSIDERED LITERATURE ON THIS SUBJECT IS THAT THE TWO TERMS ARE NOT
MUTUALLY EXCLUSIVE, THAT THE TWO CLASSIFICATIONS OVERLAP, (FN25) AND
THAT THEY ARE OF LITTLE HELP IN CASES SUCH AS WE HAVE HERE.  IN THOSE
CASES WHERE THIS COURT HAS EMPLOYED THE TERM, IT HAS BEEN CHIEFLY AS AN
AID IN STATUTORY CONSTRUCTION.  CF. FEDERAL TRADE COMMISSION V.
KLESNER, 280 U.S. 19. 

OUR DECISIONS DEALING WITH INJUNCTIONS HAVE BEEN MUCH CONCERNED WITH
THE EXISTENCE AND NATURE OF PRIVATE PROPERTY RIGHTS, BUT NO CASE IS
CITED OR RECALLED IN WHICH THIS COURT HAS RECOGNIZED THE DISTINCTION
BETWEEN PRIVATE AND PUBLIC RIGHTS TO REACH SUCH CONSEQUENCES AS ARE
URGED HERE.  MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41; FROST
V. CORPORATION COMMISSION, 278 U.S. 515; CAVANAUGH V. LOONEY, 248 U.S.
453; INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS, 248 U.S. 215; IN
RE DEBS, 158 U.S. 564; IN RE SAWYER, 124 U.S. 200. 

WE CONCLUDE THAT WHEN FEDERAL POWER CONSTITUTIONALLY IS EXERTED FOR
THE PROTECTION OF PUBLIC OR PRIVATE INTERESTS, OR BOTH, IT BECOMES THE
SUPREME LAW OF THE LAND AND CANNOT BE CURTAILED, CIRCUMVENTED OR
EXTENDED BY A STATE PROCEDURE MERELY BECAUSE IT WILL APPLY SOME
DOCTRINE OF PRIVATE RIGHT.  TO THE EXTENT THAT THE PRIVATE RIGHT MAY
CONFLICT WITH THE PUBLIC ONE, THE FORMER IS SUPERSEDED.  TO THE EXTENT
THAT PUBLIC INTEREST IS FOUND TO REQUIRE OFFICIAL ENFORCEMENT INSTEAD
OF PRIVATE INITIATIVE, THE LATTER WILL ORDINARILY BE EXCLUDED.  OF
COURSE, CONGRESS, IN ENACTING SUCH LEGISLATION AS WE HAVE HERE, CAN
SAVE ALTERNATIVE OR SUPPLEMENTAL STATE REMEDIES BY EXPRESS TERMS, OR BY
SOME CLEAR IMPLICATION, IF IT SEES FIT. 

ON THE BASIS OF THE ALLEGATIONS, THE PETITIONERS COULD HAVE PRESENTED
THIS GRIEVANCE TO THE NATIONAL LABOR RELATIONS BOARD.  THE RESPONDENTS
WERE SUBJECT TO BEING SUMMONED BEFORE THAT BODY TO JUSTIFY THEIR
CONDUCT.  WE THINK THE GRIEVANCE WAS NOT SUBJECT TO LITIGATION IN THE
TRIBUNALS OF THE STATE.  JUDGMENT AFFIRMED. 

FN1  373 PA. 19, 94 A.2D 893.  THE EQUITY COURT'S OPINION IS REPORTED
AT 62 DAUPHIN COUNTY REP. 339. 

FN2  345 U.S. 991. 

FN3  THE PENNSYLVANIA STATUTE DOES NOT SPECIFICALLY PROHIBIT THE TYPE
OF UNION CONDUCT CHARGED IN THE COMPLAINT.  HOWEVER, THE COURT REASONED
THAT THE UNION WAS ATTEMPTING TO FORCE PETITIONERS TO VIOLATE SEC. 6(C)
OF THE STATUTE, WHICH PROVIDES THAT "IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN EMPLOYER  ...  .  (C) 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  ...  ." 
PA. LAWS 1937, 1172, PURDON'S PA. STAT. ANN., 1952, TIT. 43, SEC.
211.6. 

FN4  E.G., ALGOMA PLYWOOD CO. V. WISCONSIN BOARD, 336 U.S. 301, 313;
BETHLEHEM STEEL CO. V. NEW YORK BOARD, 330 U.S. 767, 773; HILL V.
FLORIDA EX REL. WATSON, 325 U.S. 538, 539 (AND SEE CONCURRING AND
DISSENTING OPINIONS, PP. 544, 547); ALLEN-BRADLEY LOCAL V. WISCONSIN
BOARD, 315 U.S. 740, 748-751. 

FN5  "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS -  ...  (2) TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO
DISCRIMINATE AGAINST AN EMPLOYEE IN VIOLATION OF SUBSECTION (A)(3) OR
TO DISCRIMINATE AGAINST AN EMPLOYEE WITH RESPECT TO WHOM MEMBERSHIP IN
SUCH ORGANIZATION HAS BEEN DENIED OR TERMINATED ON SOME GROUND OTHER
THAN HIS FAILURE TO TENDER THE PERIODIC DUES AND THE INITIATION FEES
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING OR RETAINING MEMBERSHIP
...  ."  SEC. 8(B), 61 STAT. 141, 29 U.S.C. (SUPP. III) SEC. 158(B). 

SUBSECTION (A)(3) READS IN PART:  "IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN EMPLOYER -  ... (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  ...  ." 
61 STAT. 140, 29 U.S.C. (SUPP. III) SEC. 158(A). 

FN6  "THE BOARD SHALL HAVE POWER, UPON ISSUANCE OF A COMPLAINT AS
PROVIDED IN SUBSECTION (B) CHARGING THAT ANY PERSON HAS ENGAGED IN OR
IS ENGAGING IN AN UNFAIR LABOR PRACTICE, TO PETITION ANY DISTRICT COURT
OF THE UNITED STATES (INCLUDING THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF COLUMBIA), WITHIN ANY DISTRICT WHEREIN THE UNFAIR
LABOR PRACTICE IN QUESTION IS ALLEGED TO  HAVE OCCURRED OR WHEREIN SUCH
PERSON RESIDES OR TRANSACTS BUSINESS, FOR APPROPRIATE TEMPORARY RELIEF
OR RESTRAINING ORDER.  UPON THE FILING OF ANY SUCH PETITION THE COURT
SHALL CAUSE NOTICE THEREOF TO BE SERVED UPON SUCH PERSON, AND THEREUPON
SHALL HAVE JURISDICTION TO GRANT TO THE BOARD SUCH TEMPORARY RELIEF OR
RESTRAINING ORDER AS IT DEEMS JUST AND PROPER."  SEC. 10(J), 61 STAT.
149, 29 U.S.C. (SUPP. III) SEC. 160(J).  TEMPORARY INJUNCTIONS HAVE
BEEN GRANTED BY THE DISTRICT COURTS UPON APPLICATION BY THE BOARD
FOLLOWING ISSUANCE OF COMPLAINTS CHARGING VIOLATIONS OF SEC. 8(B)(2),
BROWN V. NATIONAL UNION, 104 F. SUPP. 685; DOUDS V. ANHEUSER-BUSCH,
INC., 99 F. SUPP. 474; JAFFEE V. NEWSPAPER & MAIL DELIVERERS' UNION, 97
F. SUPP. 443; PENELLO V. INTERNATIONAL UNION, 88 F. SUPP. 935, AND OF
OTHER SECTIONS OF THE ACT.  CURRY V. UNION DE TRABAJADORES DE LA
INDUSTRIA, 86 F. SUPP. 707; MADDEN V. INTERNATIONAL UNION, 79 F. SUPP.
616; DOUDS V. LOCAL 294, 75 F. SUPP. 414.  SEE LABOR BOARD V. DENVER
BUILDING & CONSTRUCTION TRADES COUNCIL, 341 U.S. 675, 682; HERZOG V.
PARSONS, 86 U.S. APP. D.C. 198, 203, 181 F.2D 781, 786.  SEE ALSO 61
STAT. 155, 29 U.S.C. (SUPP. V) SEC. 178, GRANTING SIMILAR INITIATIVE
POWERS TO THE ATTORNEY GENERAL WHEN STRIKES OR LOCKOUTS IMPERIL THE
NATIONAL HEALTH OR SAFETY. 

FN7  "(A)  UNDER PREVAILING ECONOMIC CONDITIONS DEVELOPED WITH THE
AID OF GOVERNMENTAL AUTHORITY FOR OWNERS OF PROPERTY TO ORGANIZE IN THE
CORPORATE AND OTHER FORMS OF OWNERSHIP ASSOCIATION, THE INDIVIDUAL
UNORGANIZED WORKER IS COMMONLY HELPLESS TO EXERCISE ACTUAL LIBERTY OF
CONTRACT AND TO PROTECT HIS FREEDOM OF LABOR, AND THEREBY TO OBTAIN
ACCEPTABLE TERMS AND CONDITIONS OF EMPLOYMENT, WHEREFORE, THOUGH HE
SHOULD BE FREE TO DECLINE TO ASSOCIATE WITH HIS FELLOWS, IT IS
NECESSARY THAT HE HAVE FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION,
AND DESIGNATION OF REPRESENTATIVES OF HIS OWN CHOOSING TO NEGOTIATE THE
TERMS AND CONDITIONS OF HIS EMPLOYMENT, AND THAT HE SHALL BE FREE FROM
THE INTERFERENCE, RESTRAINT OR COERCION OF EMPLOYERS OF LABOR OR THEIR
AGENTS IN THE DESIGNATION OF SUCH REPRESENTATIVES OR IN SELF
ORGANIZATION OR IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION. 

"(B)  EQUITY PROCEDURE THAT PERMITS A COMPLAINING PARTY TO OBTAIN
SWEEPING INJUNCTIVE RELIEF THAT IS NOT PRECEDED BY OR CONDITIONED UPON
NOTICE TO AND HEARING OF THE RESPONDING PARTY OR PARTIES OR THAT
PERMITS SWEEPING INJUNCTIONS TO ISSUE AFTER HEARING BASED UPON WRITTEN
AFFIDAVITS ALONE AND NOT WHOLLY OR IN PART UPON EXAMINATION,
CONFRONTATION AND CROSS-EXAMINATION OF WITNESSES IN OPEN COURT IS
PECULIARLY SUBJECT TO ABUSE IN LABOR LITIGATION FOR THE REASONS THAT: 

"(1)  THE STATUS QUO CANNOT BE MAINTAINED, BUT IS NECESSARILY ALTERED
BY THE INJUNCTION. 

"(2)  DETERMINATION OF ISSUES OF VERACITY AND OF PROBABILITY OF FACT
FROM AFFIDAVITS OF THE OPPOSING PARTIES THAT ARE CONTRADICTORY AND
UNDER THE CIRCUMSTANCES UNTRUSTWORTHY RATHER THAN FROM ORAL EXAMINATION
IN OPEN COURT IS SUBJECT TO GRAVE ERROR. 

"(3)  ERROR IN ISSUING THE INJUNCTIVE RELIEF IS USUALLY IRREPARABLE
TO THE OPPOSING PARTY; AND: 

"(4)  DELAY INCIDENT TO THE NORMAL COURSE OF APPELLATE PRACTICE
FREQUENTLY MAKES ULTIMATE CORRECTION OF ERROR IN LAW OR IN FACT
UNAVAILING IN THE PARTICULAR CASE."  PA. LAWS 1937, 1198, PURDON'S PA.
STAT. ANN., 1952, TIT. 43, SEC. 206B. 

FN8  ROSE, THE LABOR MANAGEMENT RELATIONS ACT AND THE STATE'S POWER
TO GRANT RELIEF, 39 VA. L. REV. 765 (1953); HALL, THE TAFT-HARTLEY ACT
V. STATE REGULATION, 1 JOURNAL OF PUBLIC LAW 97 (1952). 

FN9  "INDUSTRIAL STRIFE WHICH INTERFERES WITH THE NORMAL FLOW OF
COMMERCE AND WITH THE FULL PRODUCTION OF ARTICLES AND COMMODITIES FOR
COMMERCE, CAN BE AVOIDED OR SUBSTANTIALLY MINIMIZED IF EMPLOYERS,
EMPLOYEES, AND LABOR ORGANIZATIONS EACH RECOGNIZE UNDER LAW ONE
ANOTHER'S LEGITIMATE RIGHTS IN THEIR RELATIONS WITH EACH OTHER, AND
ABOVE ALL RECOGNIZE UNDER LAW THAT NEITHER PARTY HAS ANY RIGHT IN ITS
RELATIONS WITH ANY OTHER TO ENGAGE IN ACTS OR PRACTICES WHICH
JEOPARDIZE THE PUBLIC HEALTH, SAFETY, OR INTEREST. 

"IT IS THE PURPOSE AND POLICY OF THIS ACT, IN ORDER TO PROMOTE THE
FULL FLOW OF COMMERCE, TO PRESCRIBE THE LEGITIMATE RIGHTS OF BOTH
EMPLOYEES AND EMPLOYERS IN THEIR RELATIONS AFFECTING COMMERCE, TO
PROVIDE ORDERLY AND PEACEFUL PROCEDURES FOR PREVENTING THE INTERFERENCE
BY EITHER WITH THE LEGITIMATE RIGHTS OF THE OTHER, TO PROTECT THE
RIGHTS OF INDIVIDUAL EMPLOYEES IN THEIR RELATIONS WITH LABOR
ORGANIZATIONS WHOSE ACTIVITIES AFFECT COMMERCE, TO DEFINE AND PROSCRIBE
PRACTICES ON THE PART OF LABOR AND MANAGEMENT WHICH AFFECT COMMERCE AND
ARE INIMICAL TO THE GENERAL WELFARE, AND TO PROTECT THE RIGHTS OF THE
PUBLIC IN CONNECTION WITH LABOR DISPUTES AFFECTING COMMERCE."  SEC.
1(B), 61 STAT. 136, 29 U.S.C. (SUPP. III) SEC. 141(B). 

FN10  "  ...  THIS POWER SHALL NOT BE AFFECTED BY ANY OTHER MEANS OF
ADJUSTMENT OR PREVENTION THAT HAS BEEN OR MAY BE ESTABLISHED BY
AGREEMENT, LAW, OR OTHERWISE  ...  ."  SEC.  10(A), 61 STAT. 146, 29
U.S.C. (SUPP. III) SEC. 160(A). 

FN11  S. REP. NO. 105, 80TH CONG., 1ST SESS. 8. 

FN12  CF. REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7, 10:  "THE
ACT DOES NOT PRESCRIBE PENALTIES OR FINES IN VINDICATION OF PUBLIC
RIGHTS OR PROVIDE INDEMNITY AGAINST COMMUNITY LOSSES AS DISTINGUISHED
FROM THE PROTECTION AND COMPENSATION OF EMPLOYEES." 

FN13  SEE, E.G., BRIEF FOR THE BOARD, PP. 14, 43, MONTGOMERY BUILDING
& CONSTRUCTION TRADES COUNCIL V. LEDBETTER ERECTION CO., 344 U.S. 178. 

FN14  SEE UNITY V. BURRAGE, 103 U.S. 447.  BLACKSTONE NOTED THAT "THE
COURTS OF LAW ARE BOUND TO TAKE NOTICE JUDICIALLY AND EX OFFICIO" OF
PUBLIC LAWS, AS CONTRASTED WITH PRIVATE LAWS.  1 COMMENTARIES (15TH ED.
1809), 85.  THE ACTS OF CONGRESS ARE CLASSIFIED IN PUBLICATION
ACCORDING TO THEIR PUBLIC OR PRIVATE NATURE.  SOME STATE CONSTITUTIONS
MAKE SPECIAL PROVISIONS FOR PRIVATE OR LOCAL BILLS.  SEE CLOE AND
MARCUS, SPECIAL AND LOCAL LEGISLATION, 24 KY. L.J. 351 (1936), FOR A
TABULATION OF THESE PROVISIONS.  THE DIFFERENCE IN CLASSIFICATION IS
PARTICULARLY STRIKING IN THE FIELD OF DIVORCE, WHICH WAS FORMERLY BESET
BY PRIVATE AND LOCAL BILLS.  SEE MAYNARD V. HILL, 125 U.S. 190.  MANY
STATE CONSTITUTIONS NOW SPECIFICALLY PROHIBIT PRIVATE LAWS IN THE FIELD
OF DIVORCE.  E.G., ALA. CONST., ART. 4, SEC. 104(1); WYO. CONST., ART.
3, SEC. 27.    FN15  HOLLAND, ELEMENTS OF JURISPRUDENCE (6TH ED. 1893),
112, DECLARES THIS TO BE "  ...  THE RADICAL DISTINCTION BETWEEN
RIGHTS, AND CONSEQUENTLY BETWEEN THE DEPARTMENTS OF LAW." 

FN16  GOODRICH, CONFLICT OF LAWS (3D ED. 1949), SECS. 1, 5; CHESHIRE,
PRIVATE INTERNATIONAL LAW (4TH ED. 1952), 16. 

FN17  "SINCE THE WORK OF DICEY, THE CONTRAST BETWEEN CONTINENTAL
SYSTEMS, WHICH DISTINGUISH BETWEEN ADMINISTRATIVE LAW AND PRIVATE LAW
AND HAVE A SEPARATE SYSTEM OF LAW COURTS FOR EACH, AND THE ANGLO
AMERICAN SYSTEM, WHICH ONLY KNOWS ONE LAW AND ONE SYSTEM OF LAW, IS
FAMILIAR TO ANGLO-AMERICAN LAWYERS.  NO DOUBT AT ONE TIME THIS GAVE
EXPRESSION TO A PROFOUND DIVERSITY IN THE ATTITUDE TAKEN BY THE TWO
GROUPS OF LEGAL SYSTEMS TOWARDS THE RELATIONS BETWEEN AUTHORITY AND
INDIVIDUAL  ...  .  BUT IT IS COMMONPLACE TODAY THAT THIS DIFFERENCE,
SO ELOQUENTLY STATED BY DICEY, IS IN SUBSTANCE ESSENTIALLY A MATTER OF
THE PAST, AND THAT EVEN IN HIS OWN TIME IT WAS ONLY PARTLY TRUE  ...  .
THERE IS TODAY A VAST BODY OF ADMINISTRATIVE LAW BOTH IN BRITAIN AND
THE UNITED STATES, BUT IT HAS NOT YET BEEN GIVEN A DEFINITE PLACE IN
THE LEGAL SYSTEM AS HAS BEEN DONE WITH ADMINISTRATIVE LAW IN MANY
CONTINENTAL COUNTRIES  ...  .  SUCH BODIES AS THE BRITISH BROADCASTING
CORPORATION, THE AGRICULTURAL MARKETING BOARDS OR, IN THE UNITED
STATES, THE INTERSTATE COMMERCE COMMISSION, THE NATIONAL LABOUR
RELATIONS BOARD, THE FEDERAL POWER COMMISSION AND HUNDREDS OF OTHERS
ARE, IN FACT, BODIES WHOSE STATUS IS GOVERNED BY PUBLIC LAW AND WHICH
WOULD ON THE CONTINENT COME UNDER ADMINISTRATIVE JURISDICTION  ...  ." 
FRIEDMANN, LEGAL THEORY (2D ED. 1949), 345. 

FN18  POLLOCK, A FIRST BOOK OF JURISPRUDENCE (6TH ED. 1929), 95-98,
GIVES AN ILLUMINATING DISCUSSION.  HE STATES IN PART:  "RULES OF
PRIVATE LAW MAY BE SAID TO HAVE REMAINED IN A STAGE WHERE ALL RULES OF
LAW PROBABLY WERE IN REMOTE TIMES:  THAT IS TO SAY, THE STATE PROVIDES
JUDGMENT AND JUSTICE, BUT ONLY ON THE REQUEST AND ACTION OF THE
INDIVIDUAL CITIZEN:  THOSE WHO DESIRE JUDGMENT MUST COME AND ASK FOR
IT.  ACCORDINGLY THE SPECIAL FIELD OF SUCH RULES IS THAT PART OF HUMAN
AFFAIRS IN WHICH INDIVIDUAL INTERESTS PREDOMINATE, AND ARE LIKELY TO BE
ASSERTED ON THE WHOLE WITH SUFFICIENT VIGOUR, AND MOREOVER NO PUBLIC
HARM IS AN OBVIOUS OR NECESSARY CONSEQUENCE OF PARTIES NOT CARING TO
ASSERT THEIR RIGHTS IN PARTICULAR CASES  ...  .  THERE FALL MORE
SPECIALLY UNDER RULES OF PUBLIC LAW THE DUTIES AND POWERS OF DIFFERENT
AUTHORITIES IN THE STATE, MAKING UP WHAT IS USUALLY KNOWN AS THE LAW OF
THE CONSTITUTION; ALSO THE SPECIAL BODIES OF LAW GOVERNING THE ARMED
FORCES OF THE STATE, AND THE ADMINISTRATION OF ITS OTHER DEPARTMENTS;
LAWS REGULATING PARTICULAR TRADES AND UNDERTAKINGS IN THE INTEREST OF
PUBLIC HEALTH OR SAFETY; AND IN SHORT ALL STATE ENTERPRISE AND ALL
ACTIVE INTERFERENCE OF THE STATE WITH THE ENTERPRISES OF PRIVATE MEN
...  ."  PP. 96-97. 

FN19  2 KENT, COMMENTARIES (14TH ED. 1896), *598-599; STORY,
COMMENTARIES ON THE LAW OF BAILMENTS (3D ED. 1843), SECS. 508, 549;
LOUGH V. OUTERBRIDGE, 143 N.Y. 271, 38 N.E. 292; CHICAGO, B.&Q.R. CO.
V. JONES, 149 ILL. 361, 374, 37 N.E. 247, 250; SEE MUNN V. ILLINOIS, 94
U.S. 113, 133-134. 

FN20  SECS. 11, 15, 16, 24 STAT. 383, 384; SEC. 216, 49 STAT. 558, AS
AMENDED, 49 U.S.C. SECS. 11, 15, 16, 316. 

FN21  TEXAS & P.R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, 443
444; LEWIS-SIMAS-JONES CO. V. SOUTHERN PACIFIC CO., 283 U.S. 654, 661. 

FN22  SECS. 2(A), (C), (E), PA. LAWS 1937, 1169, 1170, PURDON'S PA.
STAT. ANN., 1952, TIT. 43, SECS. 211.2(A), (C), (E). 

FN23  THE SAME COURT HAS SAID OF THE ACT IN A DIFFERENT FACTUAL
CONTEXT:  "IT IS INIMICAL TO THE PUBLIC INTERESTS, AS DECLARED IN THE
PREAMBLE TO OUR ACT, THAT THOSE DEPRIVED OF A PARTICULAR EMPLOYMENT,
WHERE SUCH STATUS IS DUE TO WHAT IS DETERMINED TO BE UNLAWFUL CONDUCT
ON THE PART OF THE EMPLOYER, SHOULD BE DEPRIVED OF COMPENSATION OR
WAGES WHEN THE EMPLOYEE BY A REASONABLE EFFORT COULD HAVE SECURED
EMPLOYMENT WHICH HE WAS PHYSICALLY AND MENTALLY FITTED TO PERFORM.  IF
THIS RULE IS NOT FOLLOWED THE PURPOSES OF THE ACT WILL NOT BE FULFILLED
AND THE COMMUNITY WILL SUFFER."  W.T. GRANT CO. V. UNITED RETAIL
EMPLOYEES, 347 PA. 224, 226, 31 A.2D 900, 901. 

FN24  INTERNATIONAL UNION V. WILLIAM D. BAKER CO., 100 F. SUPP. 773,
ILLUSTRATES THE POTENTIALITIES OF CONFLICT.  A DISAGREEMENT AROSE
BETWEEN A UNION AND SEVERAL CONTRACTING ASSOCIATIONS OVER A COLLECTIVE
BARGAINING AGREEMENT.  THE AGREEMENT CONTAINED A NO-STRIKE PROVISION. 
THE UNION, CONTENDING THAT THE AGREEMENT HAD COME TO AN END, THREATENED
TO STRIKE.  THE ASSOCIATION OBTAINED AN INJUNCTION IN THE PENNSYLVANIA
COURTS RESTRAINING THE MEMBERS OF THE UNION FROM STRIKING.  THE UNION
PRAYED FOR AN INJUNCTION IN FEDERAL DISTRICT COURT TO PREVENT THE
ASSOCIATIONS FROM ENFORCING THEIR STATE DECREE.  THE FEDERAL COURT HELD
THAT, EVEN IF EXCLUSIVE JURISDICTION OVER THE SUBJECT MATTER WAS IN THE
FEDERAL COURTS, IT HAD NO POWER TO ENJOIN ENFORCEMENT OF THE STATE
INJUNCTION.  WHETHER THIS CONCLUSION BE CORRECT OR NOT (FOR A CRITICAL
COMMENT SEE NOTE, 48 NORTHWESTERN U.L. REV. 383 (1953)), THE CASE
EXEMPLIFIES THE TYPE OF DIFFICULTY INHERENT IN RECOGNIZING STATE
SUPPLEMENTAL RELIEF IN AN OTHERWISE EXCLUSIVE FEDERAL FIELD. 

FN25  POLLOCK, N. 18, SUPRA, AT 99, SAYS, "IT WILL BE SEEN,
THEREFORE, THAT THE TOPICS OF PUBLIC AND PRIVATE LAW ARE BY NO MEANS
MUTUALLY EXCLUSIVE.  ON THE CONTRARY THEIR APPLICATION OVERLAPS WITH
REGARD TO A LARGE PROPORTION OF THE WHOLE MASS OF ACTS AND EVENTS
CAPABLE OF HAVING LEGAL CONSEQUENCES." 
..END :









POPE & TALBOT, INC. V. HAWN 346 U.S. 406 


NO. 13.  ARGUED OCTOBER 12, 1953 - DECIDED DECEMBER 7, 1953 - 198 F.2D
800, AFFIRMED. 


PLAINTIFF, A CARPENTER EMPLOYED BY AN INDEPENDENT CONTRACTOR, WAS
INJURED WHILE WORKING ON A SHIP BERTHED ON NAVIGABLE WATERS IN
PENNSYLVANIA.  BASING JURISDICTION OR DIVERSITY OF CITIZENSHIP, HE
BROUGHT A CIVIL ACTION FOR DAMAGES AGAINST THE SHIPOWNER IN A FEDERAL
DISTRICT COURT IN PENNSYLVANIA, ALLEGING NEGLIGENCE AND THE SHIP'S
UNSEAWORTHINESS.  THE SHIPOWNER PLEADED CONTRIBUTORY NEGLIGENCE AS A
DEFENSE AND BROUGHT IN THE CONTRACTOR AS A THIRD-PARTY DEFENDANT,
ALLEGING THAT THE INJURY RESULTED FROM THE CONTRACTOR'S NEGLIGENCE AND
CLAIMING RECOVERY AGAINST THE CONTRACTOR BY WAY OF CONTRIBUTION OR
INDEMNITY.  A JURY FOUND THAT THE SHIP WAS UNSEAWORTHY, THAT BOTH THE
SHIPOWNER AND THE CONTRACTOR WERE NEGLIGENT AND THAT THE PLAINTIFF'S
OWN NEGLIGENCE HAD CONTRIBUTED TO HIS DAMAGES.  HELD:  PLAINTIFF'S
JUDGMENT AGAINST THE SHIPOWNER IS AFFIRMED, AND THE SHIPOWNER IS NOT
ENTITLED TO A JUDGMENT AGAINST THE CONTRACTOR FOR CONTRIBUTION.  PP.
407-414. 

1.  PLAINTIFF'S CONTRIBUTORY NEGLIGENCE WAS NOT A COMPLETE BAR TO HIS
RECOVERY.  PP. 408-411. 

(A)  IN ADMIRALTY, CONTRIBUTORY NEGLIGENCE MAY MITIGATE, BUT DOES NOT
BAR, RECOVERY FOR PERSONAL INJURIES.  PP. 408-409. 

(B)  SINCE PLAINTIFF WAS INJURED ON NAVIGABLE WATERS WHILE WORKING ON
A SHIP, THE BASIS OF HIS ACTION IS A MARITIME TORT; AND HIS RIGHTS ARE
NOT DETERMINED BY PENNSYLVANIA LAW.  PP. 409-411. 

(C)  ERIE R. CO. V. TOMPKINS, 304 U.S. 64, DOES NOT REQUIRE A
DIFFERENT RESULT.  PP. 410-411. 

2.  PLAINTIFF'S JUDGMENT AGAINST THE SHIPOWNER SHOULD NOT BE REDUCED
BY THE AMOUNT OF COMPENSATION PAYMENTS PLAINTIFF HAS RECEIVED FROM HIS
EMPLOYER UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT.  PP. 411-412. 

3.  THIS COURT DECLINES TO OVERRULE OR DISTINGUISH SEAS SHIPPING CO.
V. SIERACKI, 328 U.S. 85.  PP. 412-413. 

4.  THE PLAINTIFF, NOT BEING A SEAMAN, IS NOT BARRED BY THE OSCEOLA,
189 U.S. 158, FROM MAINTAINING A NEGLIGENCE ACTION AGAINST THE
SHIPOWNER.  PP. 413-414. 

5.  A JUDGMENT FOR THE SHIPOWNER AGAINST THE CONTRACTOR FOR
CONTRIBUTION IS BARRED BY HALCYON LINES V. HAENN SHIP CEILING &
REFITTING CORP., 342 U.S. 282.  P. 408. 

POPE & TALBOT, INC. V. HAWN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

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 THE 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 VESSELS'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 HAENN 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 AFFIRMED
HAWN'S JUDGMENT AGAINST POPE & TALBOT.  IT REVERSED THE JUDGMENT OF
CONTRIBUTION AGAINST HAENN.  198 F.2D 800.  THIS COURT GRANTED
CERTIORARI.  345 U.S. 990. 

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.  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. 

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. 

(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. 
(FN1)  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. 

(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, (FN2) A TYPE OF ACTION WHICH THE
CONSTITUTION HAS 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.  AND HAWN'S COMPLAINT ASSERTED NO CLAIM
CREATED BY OR ARISING OUT OF PENNSYLVANIA LAW.  HIS RIGHT OF 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, (FN3) A STATE MAY NOT
DEPRIVE A PERSON OF ANY SUBSTANTIAL ADMIRALTY RIGHTS AS DEFINED IN
CONTROLLING ACTS OF CONGRESS OR BY INTERPRETATIVE DECISIONS OF THE
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,
AND CASES THERE CITED.  CALDAROLA V. ECKERT, 332 U.S. 155, 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. 

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. SEC. 1332.  (FN4)  FOR THIS CONTENTION THE
PRINCIPLE ESTABLISHED IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, 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 LONG-STANDING 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.  (FN5)  THE DISTRICT COURT AND COURT OF APPEALS
CORRECTLY REFUSED TO DENY HAWN'S FEDERAL RIGHT OF RECOVERY BY APPLYING
THE PENNSYLVANIA CONTRIBUTORY NEGLIGENCE RULE. 

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. SEC. 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 SEC. 33 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
SUBJECT 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. 

THIRD.  WE ARE ASKED TO REVERSE THIS JUDGMENT BY OVERRULING OUR
HOLDING IN SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85.  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 SEIRACKI.  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. 

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, 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.  (FN6)
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. 
AFFIRMED. 

FN1  E.G., THE MAX MORRIS, 137 U.S. 1; THE ARIZONA V. ANELICH, 298
U.S. 110, 122, AND CASES CITED; SOCONY-VACUUM OIL CO. V. SMITH, 305
U.S. 424, 428-429; JACOB V. NEW YORK CITY, 315 U.S. 752, 755; AND
COMPARE GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239, 244-245, WITH
BELDEN V. CHASE, 150 U.S. 674. 

FN2  ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52, 61-63. 

FN3  SEE E.G., JUST V. CHAMBERS, 312 U.S. 383, 387-392; KELLY V.
WASHINGTON, 302 U.S. 1, 13. 

FN4  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. SEC. 1331 AS ARISING "UNDER THE CONSTITUTION, LAWS OR
TREATIES OF THE UNITED STATES."  SEE DOUCETTE V. VINCENT, 194 F.2D 834,
AND JANSSON V. SWEDISH AMERICAN LINE, 185 F.2D 212.  CF. JORDINE V.
WALLING, 185 F.2D 662. 

FN5  OF A SOMEWHAT SIMILAR CONTENTION THIS COURT SAID THAT IT DID NOT
REGARD CERTAIN WORDS IN THE JONES ACT, 41 STAT. 1007, 46 U.S.C. SEC.
688, "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.    FN6  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, 105 U.S. 626 (1882); THE MAX MORRIS, 137 U.S. 1
(1890); GERRITY V. THE BARK KATE CANN, 2 F. 241 (1880); THE HELIOS, 12
F. 732 (1882), DECISION BY JUDGE ADDISON BROWN; GRAYS HARBOR STEVEDORE
CO. V. FOUNTAIN, 5 F.2D 385 (1925); TIDE WATER ASSOCIATED OIL CO. V.
RICHARDSON, 169 F.2D 802 (1948); BRADY V. ROOSEVELT S.S. CO., 317 U.S.
575, 577 (1943).  SEE ALSO CASES COLLECTED IN 44 A.L.R. 1025-1034. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

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. 

IN 1903, THIS COURT IN THE OSCEOLA, 189 U.S. 158, 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. SEC. 688, WERE SEAMEN GIVEN THE ALTERNATIVES OF SUING FOR
NEGLIGENCE OR UNSEAWORTHINESS.  SEE PACIFIC S.S. CO. V. PETERSON, 278
U.S. 130, 138.  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.  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. SEC. 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, 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. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS, BECAUSE THE
SEPARATE FINDING THAT THE SHIP WAS UNSEAWORTHY SUPPORTS RECOVERY. 
(FN1)  THIS, OF COURSE, ASSUMES HAWN WAS THE KIND OF WORKER WHO WE HELD
IN SIERACKI COULD RECOVER FOR UNSEAWORTHINESS. 

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, 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. 

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. 

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, WITH THE MAX MORRIS, 137 U.S. 1.  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. 

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.  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.  (FN2) DID SIERACKI, IN HOLDING
THAT LONGSHOREMEN LABORING LIKE SEAMEN OF OLD IN THE "SERVICE OF THE
SHIP" WERE ENTITLED TO RECOVER FOR UNSEAWORTHINESS, LEAVE THEM ALSO
WITH THE NEGLIGENCE CAUSE OF ACTION WHICH THE OSCEOLA DENIED TO
SEAMEN?  (FN3) 

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. 

SINCE UNSEAWORTHINESS AFFORDS LONGSHOREMEN RECOVERY WITHOUT FAULT AND
HAS BEEN BROADLY CONSTRUED BY THE COURTS, E.G., MAHNICH V. SO. 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. 

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. 

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. 

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.   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. 

FN1  NO OBJECTION WAS RAISED AT ANY POINT IN THIS CASE TO THE TRIAL
BY THE 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. 

FN2  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.
SO. S.S. CO., 321 U.S. 96, AND CHELENTIS V. LUCKENBACH S.S. CO., 247
U.S. 372. 

FN3  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. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

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 IS 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. 

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. 

             1.  DIVERSITY OF CITIZENSHIP AND PENNSYLVANIA STATE
LAW. 

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 SEC. 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. 

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. 

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, 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. 

              2.  ACTION FOR NEGLIGENCE. 

THE FAILURE OF MARITIME LAW TO AFFORD A REMEDY FOR NEGLIGENCE, THE
OSCEOLA, 189 U.S. 158, WAS OVERCOME BY THE FEDERAL JONES ACT, 46 U.S.C.
SEC. 688 ET SEQ., 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.    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, 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. 

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 OF 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 CASE. 

                        3.  INDEMNITY FOR UNSEAWORTHINESS. 

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. 

AS WAS EXPLAINED IN THE OSCEOLA, SUPRA, AT 171, 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.  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. 

THE PRINCIPAL RELIANCE OF THE COURT IS ON SEAS SHIPPING CO. V.
SIERACKI, 328 U.S. 85.  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 LONGSHOREMEN 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. 

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 SHIPSHAPE, HE WOULD NOT NEED THE SERVICES OF THE REPAIRMEN. 

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. 

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 AMERLIORATED, 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. 

THAT THE SHARP DIFFERENTIATION CONGRESS MADE IN THE RIGHTS OF 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, WHICH GOVERNS MERCHANT SEAMEN.  I POINT OUT SOME OF THE MOST
OBVIOUS RESPECTS IN WHICH THIS CLAIMANT'S POSITION AS A LAND-BASED
LABOROR, 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. 

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.  SECS. 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.  SECS. 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.  SEC. 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  ...  ." 
SEC. 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.  SEC. 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.  SEC.
602. 

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.  SECS. 653,
655.  SO DEPENDENT ARE THEY THAT THE GOVERNMENT PROVIDES INSPECTION OF
THE CREW QUARTERS, WHICH MUST COMPLY WITH STANDARDS, SECS. 660-1, 660A,
AND THE SEAMEN MAY COMPLAIN AS TO THE PROVISIONS OR WATER AND OBTAIN AN
EXAMINATION.  SEC. 662. 

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. 
SEC.  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. 

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. 
..END :














WILKO V. SWAN, DBA HAYDEN, STONE & CO. 346 U.S. 427 


NO. 39.  ARGUED OCTOBER 21, 1953 - DECIDED DECEMBER 7, 1953 - 201 F.2D
439, REVERSED. 


IN AN ACTION BROUGHT BY A CUSTOMER AGAINST A SECURITIES BROKERAGE FIRM
TO RECOVER DAMAGES, UNDER THE CIVIL LIABILITIES PROVISIONS OF SEC.
12(2) OF THE SECURITIES ACT OF 1933, FOR ALLEGED MISREPRESENTATION IN
THE SALE OF SECURITIES, HELD THAT AN AGREEMENT FOR ARBITRATION OF ANY
CONTROVERSY ARISING IN THE FUTURE BETWEEN THE PARTIES WAS VOID UNDER
SEC. 14, NOTWITHSTANDING THE PROVISIONS OF THE UNITED STATES
ARBITRATION ACT.  PP. 428-438. 

(A)  THE AGREEMENT TO ARBITRATE FUTURE CONTROVERSIES WAS VOID UNDER
SEC. 14 OF THE SECURITIES ACT AS A "STIPULATION" BINDING THE CUSTOMER
TO "WAIVE COMPLIANCE" WITH A "PROVISIONS" OF THE ACT.  PP. 432-435. 

(B)  THE RIGHT OF AN AGGRIEVED PERSON UNDER SEC. 22(A) TO SELECT THE
JUDICIAL FORUM IS A "PROVISION" OF THE SECURITIES ACT THAT CANNOT BE
WAIVED UNDER SEC. 14 THEREOF.  PP. 434-438. 

(C)  AS THE PROTECTIVE PROVISIONS OF THE SECURITIES ACT REQUIRE THE
EXERCISE OF JUDICIAL DIRECTION TO FAIRLY ASSURE THEIR EFFECTIVENESS,
CONGRESS MUST HAVE INTENDED SEC. 14 TO APPLY TO WAIVER OF JUDICIAL
TRIAL AND REVIEW.  P. 437. 

WILKO V. SWAN ET AL., DOING BUSINESS AS HAYDEN, STONE & CO., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PETITIONER SUED RESPONDENTS TO RECOVER DAMAGES UNDER THE SECURITIES
ACT OF 1933.  RESPONDENTS' MOTION TO STAY THE ACTION, PURSUANT TO SEC.
3 OF THE UNITED STATES ARBITRATION ACT, WAS DENIED BY THE DISTRICT
COURT.  107 F. SUPP. 75.  THE COURT OF APPEALS REVERSED.  201 F.2D
439.  THIS COURT GRANTED CERTIORARI.  345 U.S. 969.  REVERSED, P. 438. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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 SEC. 12(2) OF THE SECURITIES ACT OF 1933.  (FN1)  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 REVIEW (FN2)),
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 PRUCHASE, 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. 

*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. 

WITHOUT ANSWERING THE COMPLAINT, THE RESPONDENT MOVED TO STAY THE
TRIAL OF THE ACTION PURSUANT TO SEC. 3 OF THE UNITED STATES ARBITRATION
ACT (FN3) 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. 

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.  (FN4)  A DIVIDED COURT OF APPEALS CONCLUDED THAT THE ACT DID
NOT PROHIBIT THE AGREEMENT TO REFER FUTURE CONTROVERSIES TO
ARBITRATION, AND REVERSED.  (FN5) 

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 COMPLAINCE WITH ANY PROVISION"
OF THE SECURITIES ACT WHICH SEC. 14 (FN6) DECLARES "VOID."  WE GRANTED
CERTIORARI, 345 U.S. 969, 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. 

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)
SEC. 2.  CF. TEJAS DEVELOPMENT CO. V. MCGOUGH BROS., 165 F.2D 276, 278,
WITH AGOSTINI BROS. BLDG. CORP. V. UNITED STATES, 142 F.2D 854.  SEE
STURGES AND MURPHY, SOME CONFUSING MATTERS RELATING TO ARBITRATION, 17
LAW & CONTEMP.  PROB.  580. 

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," (FN7) CONGRESS PASSED THE SECURITIES ACT OF 1933. 
DESIGNED TO PROTECT INVESTORS, (FN8) 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.  (FN9)  TO EFFECTUATE THIS POLICY, SEC.
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.  (FN10)  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.  (FN11) 

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, (FN12) AND PRACTICE UNDER
ITS TERMS RAISES HOPE FOR ITS USEFULNESS BOTH IN CONTROVERSIES BASED ON
STATUTES (FN13) OR ON STANDARDS OTHERWISE CREATED.  (FN14)  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. 
(FN15) 

PETITIONER ARGUES THAT SEC. 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
WIAVES "COMPLIANCE WITH" THE PROVISION OF THE SECURITIES ACT, SET OUT
IN THE MARGIN, CONFERRING JURISDICTION OF SUITS AND SPECIAL POWERS. 
(FN16) 

RESPONDENT ASSERTS THAT ARBITRATION IS MERELY A FORM OF TRIAL TO BE
USED IN LIEU OF A TRIAL AT LAW, (FN17) 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. 

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.  (FN18)  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.  (FN19)  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  ...  ." 

THE WORDS OF SEC. 14, NOTE 6, SUPRA, VOID ANY "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 SEC. 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. 

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. 

EVEN THOUGH THE PROVISIONS OF THE SECURITIES ACT, ADVANTAGEOUS TO THE
BUYER, APPLY, THEIR EFFECTIVENESS IN APPLICATION IS LESSENED IN
ABITRATION AS COMPARED TO JUDICIAL PROCEEDINGS.  DETERMINATION OF THE
QUALITY OF A COMMODITY (FN20) OR THE AMOUNT OF MONEY DUE UNDER A
CONTRACT IS NOT THE TYPE OF ISSUE HERE INVOLVED.  (FN21)  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.  (FN22)  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," (FN23) THAT
FAILURE WOULD NEED TO BE MADE CLEARLY TO APPEAR.  IN UNRESTRICTED
SUBMISSIONS, 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.  (FN24)  THE UNITED STATES ARBITRATION ACT
CONTAINS NO PROVISION FOR JUDICIAL DETERMINATION OF LEGAL ISSUES SUCH
AS IS FOUND IN THE ENGLISH LAW.  (FN25)  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 SEC. 14, NOTE 6, SUPRA, TO APPLY TO WAIVER OF JUDICIAL
TRIAL AND REVIEW.  (FN26) 

THIS ACCORDS WITH BOYD V. GRAND TRUNK WESTERN R. CO. 338 U.S. 263. 
(FN27)  WE THERE HELD INVALID A STIPULATION RESTRICTING AN EMPLOYEE'S
CHOICE OF VENUE IN AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT.  SECTION 6 OF THAT ACT PERMITTED SUIT IN ANY ONE OF SEVERAL
LOCALITIES AND SEC. 5 FORBADE A COMMON CARRIER'S EXEMPTING ITSELF FROM
ANY LIABILITY UNDER THE ACT.  (FN28) SECTION 5 HAD BEEN ADOPTED TO
AVOID CONTRACTS WAIVING EMPLOYERS' LIABILITY.  (FN29)  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, (FN30) A WAIVER IN ADVANCE OF A
CONTROVERSY STANDS UPON A DIFFERENT FOOTING.  (FN31) 

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.  (FN32)  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.  REVERSED. 

FN1  48 STAT. 74, 15 U.S.C. SEC. 77A ET SEQ. SEC. 12(2), 48 STAT. 84,
15 U.S.C. SEC.  77L(2), PROVIDES:  "ANY PERSON WHO -  ...  . 

"(2)  SELLS A SECURITY (WHETHER OR NOT EXEMPTED BY THE PROVISIONS OF
OF SAID SECTION 77C), BY THE USE OF ANY MEANS OR INSTRUMENTS OF
TRANSPORTATION OR COMMUNICATION IN INTERSTATE COMMERCE OR OF THE MAILS,
BY MEANS IF A PROSPECTUS OR ORAL CUMMUNICATION, 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." 

FN2  SEE WILKO V. SWAN, 201 F.2D 439, 445. 

FN3  9 U.S.C. (SUPP. V, 1952) SEC. 1 ET SEQ. SEC. 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." 

FN4  WILKO V. SWAN, 107 F. SUPP. 75. 

FN5  WILKO V. SWAN, 201 F.2D 439. 

FN6 48 STAT. 84, 15 U.S.C. SEC. 77N.  SEC. 14 PROVIDES: 

"ANY CONDITION, STIPULATION, OR PROVISION BINDING ANY PERSON
ACQUIRING ANY SECURITY TO WAIVE COMPLIANCE WITH ANY PROVISON OF THIS
SUBCHAPTER OR OF THE RULES AND REGULATIONS OF THE COMMISSION SHALL BE
VOID." 

FN7  H.R. REP. NO. 85, 73D CONG., 1ST SESS. 2. 

FN8  S. REP. NO. 47, 73D CONG., 1ST SESS. 1.  SEE OKLAHOMA-TEXAS
TRUST V. S.E.C., 100 F.2D 888, 891. 

FN9  STAT. 74, PREAMBLE; 48 STAT. 77, 15 U.S.C. SEC. 77D.  SEE FROST
& CO. V. COEUR D'ALENE MINES CORP., 312 U.S. 38, 40. 

FN10  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. 

FN11  SEC. 22(A), 48 STAT. 86, AS AMENDED 49 STAT. 1921, 15 U.S.C.
SEC. 77VA).  SEE DECKERT V. INDEPENDENCE SHARES CORP., 311 U.S. 282,
289.  EXISTING REMEDIES AT LAW AND EQUITY ARE RETAINED.  SEC. 16, 48
STAT. 84, 15 U.S.C. SEC. 77P. 

FN12  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. 

FN13  AGOSTINI BROS BLDG. CORP. V. UNITED STATES, 142 F.2D 854;
WATKINS V. HUDSON COAL CO., 151 F.2D 311; DONHAUE V. SUSQUEHANNA
COLLIERIES CO., 138 F.2D 3; DONAHUE V. SUSQUEHANNA COLLIERIES CO., 160
F.2D 661; EVANS V. HUDSON COAL CO., 165 F.2D 970. 

FN14  MARINE TRANSIT CORP. V. DREYFUS, 284 U.S. 263; KENTUCKY RIVER
MILLS V. JACKSON, 206 F.2D 111; CAMPBELL V. AMERICAN FABRICS CO., 168
F.2D 959; COLUMBIAN FUEL CORP. V. UNITED FUEL GAS CO., 72 F. SUPP. 843,
AFFIRMED, 165 F.2D 746; MATTER OF SPRINGS COTTON MILLS (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 ORE.  528,
163 P. 600; STURGES, COMMERCIAL ARBITRATIONS AND AWARDS, PP. 502, 793
798. 

FN15  "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." 

FN16  48 STAT. 86, AS AMENDED, 49 STAT. 1921, 15 U.S.C. SEC. 77VA). 
SEC. 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. 

FN17  SEE MURRAY OIL PRODUCTS CO. V. MITSUI & CO., 146 F.2D 381, 383;
AMERICAN LOCOMOTIVE CO. V. CHEMICAL RESEARCH CORP., 171 F.2D 115, 120. 

FN18  "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. SEC. 78A ET SEQ.).'  IT CONTAINS NO EXPRESS MENTION OF THE
SECURITIES ACT OF 1933.  IN 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 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  ...  ." 

FN19  SEE STURGES, COMMERCIAL ARBITRATIONS AND AWARDS, P. 500. 

FN20  CAMPE CORP. V. PACIFIC MILLS, 87 N.Y.S.2D 16, REVERSED, 275
APP. DIV. 634, 92 N.Y.S.2D 347. 

FN21  EVANS V. HUDSON COAL CO., 165 F.2D 970; DONAHUE V. SUSQUEHANNA
COLLIERIES CO., 160 F.2D 661; WATKINS V. HUDSON COAL CO., 151 F.2D 311;
DONAHUE V. SUSQUEHANNA COLLIERIES CO., 138 F.2D 3; AGOSTINI BROS. BLDG.
CORP. V. UNITED STATES, 142 F.2D 854; AMERICAN ALMOND PROD.  CO. V.
CONSOLIDATED PECAN S. CO., 144 F.2D 448. 

FN22  9 U.S.C. (SUPP. V, 1952) SEC. 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." 

FN23  WILKO V. SWAN, 201 F.2D 439, 445. 

FN24  BURCHELL V. MARSH, 17 HOW.  344, 349; UNITED STATES V.
FARRAGUT, 22 WALL.  406, 413, 419-421 (NOTE THE RIGHT OF REVIEW);
KLEINE V. CATARA, 14 FED. CAS. 732, NO. 7,869; TEXAS & P.R. CO. V. ST.
LOUIS SOUTHWESTERN R. CO., 158 F.2D 251, 256; THE HARTBRIDGE, 62 F.2D
72, 73.  IN MUTUAL BENEFIT HEALTH & ACC.  ASSN.  V. UNITED CAS. CO.,
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. 

FN25  ARBITRATION ACT, 1950, 14 GEO. VI, C. 27, SEC. 21, 29
HALSBURY'S STATUTES OF ENGLAND (2D ED.)  P. 106. 

FN26  CF. NOTES 66 HARV. L. REV. 1326; 53 COL. L. REV. 735; 41
GEORGETOWN L.J. 565; 62 YALE L.J. 985. 

FN27  SEE ALSO, KRENGER V. PENNSYLVANIA R. CO., 174 F.2D 556; AKERLY
V. NEW YORK CENT.  R. CO., 168 F.2D 812. 

FN28  SEC. 5 OF THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 66, 45
U.S.C. SEC. 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  ...  ." 

FN29  SEE H.R. REP. NO. 1386, 60TH CONG., 1ST SESS. 6.  COMPARE
B.&O.S.R. CO. V. VOIGT, 176 U.S. 498. 

FN30  CF. CALLEN V. PENNSYLVANIA R. CO., 332 U.S. 625, 631. 

FN31  BROOKLYN SAVINGS BANK V. O'NEIL, 324 U.S. 697, 707, 714. 

FN32  CF. WILKO V. SWAN, 201 F.2D, AT 444. 

MR. JUSTICE JACKSON, CONCURRING. 

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. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE MINTON JOINS, DISSENTING. 

IF ARBITRATION INHERENTLY PRECLUDED FULL PROTECTION OF THE RIGHTS
SEC. 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 SEC. 14, THE ANTI
WAIVER PROVISION, OF THAT ACT. 

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.* 

*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. 

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. 

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. 

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.    ON THE STATE OF THE RECORD BEFORE
US, I WOULD AFFIRM THE DECISION OF THE COURT OF APPEALS. 
..END :





















UNITED STATES V. FIVE GAMBLING DEVICES ETC. 346 U.S. 441 


NO. 14.  ARGUED OCTOBER 12, 1953 - DECIDED DECEMBER 7, 1953 - AFFIRMED. 


THE ACT OF JANUARY 2, 1951, FORBIDS THE INTERSTATE SHIPMENT OF
GAMBLING DEVICES, REQUIRES EVERY DEALER IN GAMBLING DEVICES TO REGISTER
HIS PLACES OF BUSINESS "IN SUCH DISTRICT" WITH THE ATTORNEY GENERAL AND
REPORT TO HIM ALL SALES AND DELIVERIES OF GAMBLING DEVICES "IN THE
DISTRICT," AND PROVIDES FOR THE SEIZURE AND FORFEITURE OF GAMBLING
DEVICES POSSESSED IN VIOLATION OF THE ACT.  CERTAIN DEALERS IN GAMBLING
DEVICES WERE INDICTED FOR VIOLATIONS OF THE REGISTRATION AND REPORTING
REQUIREMENTS OF THE ACT, WITHOUT ANY ALLEGATION THAT THE DEVICES THEY
SOLD HAD MOVED OR WOULD MOVE IN INTERSTATE COMMERCE; AND A LIBEL TO
FORFEIT CERTAIN GAMBLING DEVICES WAS FILED, WITHOUT ALLEGING THAT THEY
EVER WERE TRANSPORTED IN OR IN ANY WAY AFFECTED INTERSTATE COMMERCE. 
HELD:  JUDGMENTS DISMISSING THE INDICTMENTS AND THE LIBEL ARE
AFFIRMED.  PP. 442-454. 

FOR OPINION OF MR. JUSTICE JACKSON, IN WHICH MR. JUSTICE FRANKFURTER
AND MR. JUSTICE MINTON JOIN, SEE P. 442. 

FOR OPINION OF MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS
JOINS, SEE P. 452. 

FOR DISSENTING OPINION OF MR. JUSTICE CLARK, WITH WHOM THE CHIEF
JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON CONCUR, SEE P. 454. 

UNITED STATES V. FIVE GAMBLING DEVICES ETC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF TENNESSEE.* 

*TOGETHER WITH NO. 40, UNITED STATES V. DENMARK, AND NO. 41, UNITED
STATES V. BRAUN, ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA. 

MR. JUSTICE JACKSON ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE FRANKFURTER AND MR. JUSTICE MINTON JOIN. 

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, (FN1) 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. 

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
INTERSTATE COMMERCE. 

INTERSTATE COMMERCE EXCEPT TO ANY STATE WHICH EXEMPTS ITSELF OR ITS
SUBDIVISION BY STATE LAW.  (FN2)  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.  (FN3)  SECTION 6 PROVIDES
CRIMINAL PENALTIES FOR FAILURE TO REGISTER OR FOR VIOLATION OF THE
TRANSPORTATION SECTION, (FN4) AND SEC. 7 AUTHORIZES FORFEITURE OF
DEVICES SOLD IN VIOLATION OF THE ACT.  (FN5) 

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. 

APPELLEES CONTEND, FIRST, THAT THE ACT SHOULD NOT BE CONSTRUED TO
REACH DEALERS, TRANSACTIONS OR MACHINES UNLESS SHOWN TO HAVE SOME
RELATION TO INTERSTATE 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. 

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 CONFUSED 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.  (FN6) 

WE DO NOT INTIMATE ANY ULTIMATE ANSWER TO THE APPELLEES'
CONSTITUTIONAL QUESTIONS OTHER THAN TO OBSERVE THAT THEY CANNOT BE
DISMISSED AS FRIVOLOUS, NOR AS UNIMPORTANT TO THE 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.  (FN7)  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. 

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.  (FN8)  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.  (FN9)  OF COURSE, DECISIONS UPHOLDING
LEGISLATION REQUIRING INFORMATION IN AID OF THE TAXING POWER (FN10)
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. 

THE PRINCIPLE IS OLD AND DEEPLY IMBEDDED IN OUR JURISPRUDENCE 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.  UNITED STATES V. RUMELY, 345 U.S.
41.  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 NO
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. 

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.  (FN11) 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. 

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.  (FN12)
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. 

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.  (FN13)
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." 
(FN14)  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."  (FN15) 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. 

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."  (FN16)  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. 

AS WE HAVE INDICATED, THE PRESENT INDICTMENTS AND LIBEL ARE SO FRAMED
AS TO APPLY IN 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.  JUDGMENTS AFFIRMED. 

FN1  64 STAT. 1134, 15 U.S.C. (SUPP. V) SECS. 1171-1177. 

FN2  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, OR POSSESSION: PROVIDED, THAT THIS
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) SEC. 1172. 

FN3  "UPON FIRST ENGAGING IN BUSINESS, AND THEREAFTER ON OR BEFORE
THE 1ST 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 IS 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) SEC. 1173. 

FN4  "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)
SEC. 1176. 

FN5  "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 FORFEITURES; 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 OF 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)
SEC. 1177. 

FN6  THE AMBIGUITY OF THE STATUTE AROSE FROM THE FOLLOWING FACTS:  IN
THE BILL ORIGINALLY SUBMITTED TO THE SENATE, S. 3357, SEC. 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.)  ...  ."  SEE
96 CONG. REC. 13649; HEARINGS BEFORE THE 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., SEC. 3.  HE
CLAIMED AUTHORITY TO ISSUE SUCH A REGULATION UNDER R.S. SEC. 161, 5
U.S.C. SEC. 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." 

FN7  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. SEC. 390. 
SEE BLUMENTHAL V. UNITED STATES, 88 F.2D 522, 524-525; ARNOLD V. UNITED
STATES, 115 F.2D 523, 524.  THE MARKING AND LABELING SECTION OF THE
AMHURST-SUMNERS ACT, 49 STAT. 494, 18 U.S.C. SEC. 396C, SPECIFICALLY
PROVIDED THAT PRISON-MADE GOODS MUST BE MARKED "WHEN SHIPPED OR
TRANSPORTED IN INTERSTATE OR FOREIGN COMMERCE."  SEE KENTUCKY SHIP &
COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299 U.S. 334, 344, 352-353,
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) SEC. 1762(A).  THE LACEY ACT OF 1900, 31 STAT. 188, REQUIRED
PACKAGES CONTAINING DEAD ANIMALS TO BE PLAINLY MARKED "WHEN SHIPPED BY
INTERSTATE COMMERCE."  SEE RUPERT V. UNITED STATES, 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) SEC. 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)
SECS. 2311-2317. 

FN8  INTERSTATE COMMERCE ACT, 36 STAT. 550, AS AMENDED, 41 STAT. 484,
49 U.S.C. SEC.  13(4), HOUSTON, E.&W.T.R. CO. V. UNITED STATES, 234
U.S. 342, 357-359; FLORIDA V. UNITED STATES, 282 U.S. 194; NORTH
CAROLINA V. UNITED STATES, 325 U.S. 507, 511; KING V. UNITED STATES,
344 U.S. 254, 267-276.  NATIONAL LABOR RELATIONS ACT, 49 STAT. 450,
452, 453, 454, 455, 29 U.S.C. SECS. 152(6), (7), 155, 160(A), (E), (F),
AS AMENDED, 61 STAT. 138, 140, 146, 147-148, 29 U.S.C. (SUPP. III)
SECS. 152(6), (7), 155, 160(A), (E), (F), LABOR BOARD V. JONES &
LAUGHLIN STEEL CORP., 310 U.S. 1, 31, 47; MYERS V. BETHLEHEM
SHIPBUILDING CORP., 303 U.S. 41, 49-50; NEWPORT NEWS SHIPBUILDING & DRY
DOCK CO. V. SCHAUFFLER, 303 U.S. 54, 57-58; SANTA CRUZ FRUIT PACKING
CO. V. LABOR BOARD, 303 U.S. 453, 466-468; CONSOLIDATED EDISON CO. V.
LABOR BOARD, 305 U.S. 197, 223-224; LABOR BOARD V. DENBER BUILDING &
CONSTRUCTION TRADES COUNCIL, 341 U.S. 675, 683-684. 

FN9  HOURS OF SERVICE ACTS (RAILROADS), 34 STAT. 1415, 45 U.S.C.
SECS. 61-64, BALTIMORE & O.R. CO. V. I.C.C., 221 U.S. 612; INTERSTATE
COMMERCE ACT, 34 STAT. 584, 49 U.S.C. SEC.  1 ET SEQ., INTERSTATE
COMMERCE COMM'N V. GOODRICH TRANSIT CO., 224 U.S. 194; GRAIN FUTURES
ACT, 42 STAT. 998, AS AMENDED, COMMODITY EXCHANGE ACT, 49 STAT. 1491, 7
U.S.C. SEC. 1 ET SEQ., BOARD OF TRADE OF CHICAGO V. OLSEN, 262 U.S. 1;
ASHURST-SUMNERS ACT (CONVICT-MADE GOODS), 49 STAT. 494, 18 U.S.C. SECS.
396B, 396C, KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299
U.S. 334; TOBACCO INSPECTION ACT, 49 STAT. 731, 7 U.S.C. SECS. 511A
511Q, CURRIN V. WALLACE, 306 U.S. 1; AGRICULTURAL ADJUSTMENT ACT OF
1938, 52 STAT. 31, AS AMENDED, 7 U.S.C. SEC. 1281 ET SEQ., MULFORD V.
SMITH, 307 U.S. 38; AS AMENDED, 55 STAT. 203, 7 U.S.C. SEC. 1340,
WICKARD V. FILBURN, 317 U.S. 111; FAIR LABOR STANDARDS ACT OF 1938, 52
STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ., UNITED STATES V. DARBY, 312
U.S. 100; OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186;
AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, 50 STAT. 246, 7 U.S.C.
SEC. 608C, UNITED STATES V. WRIGHTWOOD DAIRY CO., 315 U.S. 110; FEDERAL
FOOD, DRUG, AND COSMETIC ACT, 52 STAT. 1040, 21 U.S.C. SEC. 301 ET
SEQ., UNITED STATES V. WALSH, 331 U.S. 432; UNITED STATES V. SULLIVAN,
332 U.S. 689. 

FN10  UNITED STATES V. DOREMUS, 249 U.S. 86; NIGRO V. UNITED STATES,
276 U.S. 332; SONZINSKY V. UNITED STATES, 300 U.S. 506; UNITED STATES
V. KAHRIGER, 345 U.S. 22. 

FN11  CF. UNITED STATES V. BEKINS, 304 U.S. 27, WITH ASHTON V.
CAMERON COUNTY WATER IMPROVEMENT DISTRICT, 298 U.S. 513. 

FN12  UNITED STATES V. DENMARK, 119 F. SUPP. 647; UNITED STATES V.
BRAUN, 119 F. SUPP.  646; UNITED STATES V. FIVE GAMBLING DEVICES, 119
F. SUPP. 641; UNITED STATES V. 15 MILLS BLUE BELL GAMBLING MACHINES,
119 F. SUPP. 74; UNITED STATES V. 178 GAMBLING DEVICES, 107 F. SUPP.
394. 

FN13  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
MANUFACTURERS 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. 

FN14  96 CONG. REC. 15107.  FOR SIMILAR STATEMENTS BY SENATOR
JOHNSON, SEE 96 CONG. REC.  15103, 15105. 

FN15  H.R. REP. NO. 2769, SUPRA, AT 5. 

FN16  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. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

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 SEC. 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.* 

*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." 

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."  THEREAFTER DEALERS MUST MAKE DETAILED MONTHLY REPORTS OF
INVENTORIES, SALES AND DELIVERIES FOR THE "PLACE 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. 

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
REASONABLE ACCESSIBLE PLACES DESIGNATED BY THE ATTORNEY GENERAL.  CF.
UNITED STATES V. EATON, 144 U.S. 677.  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. SEC. 161, 5
U.S.C. SEC. 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. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE REED AND
MR. JUSTICE BURTON CONCUR, DISSENTING. 

                        I. 

I AGREE WITH MR. JUSTICE BLACK ON THE QUESTIONS OF STATUTORY
CONSTRUCTION, THAT SEC. 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, 332 U.S.
689 (1948), 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 693.    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 CO. V. UNITED STATES, 278 U.S. 41, 48 (1928).  BUT I
THINK THE LEGISLATIVE HISTORY ON THIS ISSUE IS ALMOST TOTALLY
UNENLIGHTENING.  (FN1)  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 SEC. 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."  (FN2)  THE BILL WAS DRAFTED SHORTLY THEREAFTER BY
THE JUSTICE DEPARTMENT, WITH SEC. 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. 

CONCEDEDLY, 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.  (FN3) 

FOR THESE REASONS I AM UNABLE TO AGREE WITH THE SOLUTION OF THESE
CASES OFFERED BY MR. JUSTICE JACKSON. 

                                       II. 

I AM ALSO UNABLE TO AGREE THAT THE STATUTE IS UNCONSTITUTIONALLY
VAGUE. 

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." 

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. 

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. NEW JERSEY, 306 U.S. 451, 453
(1939).  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. 

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. SEC. 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.
SEC. 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. 

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. 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. UTAH, 333 U.S. 95, 97
(1948).  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. 

THE ULTIMATE QUESTION PRESENTED BY THESE CASES IS WHETHER CONGRESS
HAS EXCEEDED ITS CONSTITUTIONAL POWER.  I THINK IT HAS NOT. 

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 ARE 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, COVERUP 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," (FN4) 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 BE 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. 

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 SUGGEST ITS
UNCONSTITUTIONALITY. 

IN THE BODY OF DECISIONAL LAW DEFINING THE SCOPE OF CONGRESS' POWER
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.  (FN5)  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. 

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."  (FN6)  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. 

THE CONSTITUTION EMPOWERS CONGRESS "TO MAKE ALL LAWS WHICH SHALL BE
NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS
...  ."  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 421 (1819), CITED IN THE
FOREGOING CASES, INTERPRETS THIS AS FOLLOWS: 

"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." 

THE COURT IN THAT CASE ADDED THAT MUCH LEEWAY IS TO BE GIVEN CONGRESS
IN DETERMINING WHAT MEANS ARE APPROPRIATE.  4.  WHEAT., AT 423. 

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.  (FN7) 

IF CONGRESS BY SEC. 3 HAD SOUGHT TO REGULATE LOCAL ACTIVITIES, 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., 224 U.S. 194, 211 (1912).  (FN8) 

IN MY VIEW CONGRESS HAS POWER TO REQUIRE THE INFORMATION DESCRIBED IN
SEC. 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.  (FN9) 
FN1  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 SEC. 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
WAS 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 SEC. 3. 

FN2  96 CONG. REC. 15102. 

FN3  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.  MANUFACTURERS 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 APPELLEES IN NOS. 40 AND 41,
P. 8.  THIS CONSTRUCTION WOULD SEEM TO CIRCUMVENT THE POSSIBLE SELF
INCRIMINATION ASPECTS SUGGESTED BY MR. JUSTICE BLACK; IT WOULD ALSO
UNDULY STRAIN STATUTORY CONSTRUCTION. 

FN4  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. 

FN5  E.G., UNITED STATES V. DARBY, 312 U.S. 100 (1941); WICKARD V.
FILBURN, 317 U.S. 111 (1942); CURRIN V. WALLACE, 306 U.S. 1 (1939);
UNITED STATES V. SULLIVAN, 332 U.S. 689 (1948).  IN UNITED STATES V.
DARBY, SUPRA, AT 121, 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; EVERARD'S BREWERIES V. DAY, 265 U.S. 545, 560;
WESTFALL V. UNITED STATES, 274 U.S. 256, 259  ...  .  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  ... .  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), AND SEE TO THE
LIKE EFFECT UNITED STATES V. ROCK ROYAL CO-OP. (307 U.S. 533)." 

FN6  UNITED STATES V. DARBY, SUPRA, AT 118; UNITED STATES V.
WRIGHTWOOD DAIRY CO., 315 U.S. 110, 119 (1942); WICKARD V. FILBURN,
SUPRA, AT 124. 

FN7  COMPARE LINDER V. UNITED STATES, 268 U.S. 5, 17 (1925). 

FN8  COMPARE OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186
(1946), 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. 

FN9  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, 133 U.S. 1
(1890). 
..END :





NATIONAL LABOR RELATIONS BOARD V. LOCAL UNION NO. 1229, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS 346 U.S. 464 


NO. 15.  ARGUED OCTOBER 12, 1953 - DECIDED DECEMBER 7, 1953 - 91 U.S.
APP. D.C. 333, 202 F.2D 186, SET ASIDE. 


UPON THE FACTS OF THIS CASE, THE DISCHARGE OF CERTAIN EMPLOYEES BY
THEIR EMPLOYER DID NOT CONSTITUTE AN UNFAIR LABOR PRACTICE WITHIN THE
MEANING OF SECS. 8(A)(1) AND 7 OF THE TAFT-HARTLEY ACT; THEIR DISCHARGE
WAS "FOR CAUSE" WITHIN THE MEANING OF SEC. 10(C) OF THAT ACT, AND THE
ACTION OF THE LABOR BOARD IN NOT REQUIRING THEIR REINSTATEMENT IS HERE
SUSTAINED.  PP. 465-478. 

(A)  IN THE CIRCUMSTANCES OF THIS CASE, IN WHICH THE EMPLOYER WAS AN
OPERATOR OF A RADIO AND TELEVISION STATION, THE DISTRIBUTION BY THE
EMPLOYEES IN QUESTION OF HANDBILLS WHICH MADE PUBLIC A DISPARAGING
ATTACK UPON THE QUALITY OF THE EMPLOYER'S TELEVISION BROADCASTS, BUT
WHICH HAD NO DISCERNIBLE RELATION TO A PENDING LABOR CONTROVERSY, WAS
ADEQUATE CAUSE FOR THE DISCHARGE OF THESE EMPLOYEES.  PP. 467-477. 

(B)  THE FORTUITY OF THE COEXISTENCE OF A LABOR DISPUTE AFFORDS THESE
EMPLOYEES NO SUBSTANTIAL DEFENSE.  PP. 476-477. 

(C)  THERE IS NO OCCASION TO REMAND THIS CAUSE TO THE BOARD FOR
FURTHER SPECIFICITY OF FINDINGS, FOR EVEN IF THE EMPLOYEES' ATTACK WERE
TREATED AS A CONCERTED ACTIVITY WITHIN SEC. 7 OF THE ACT, THE MEANS
USED BY THEM IN CONDUCTING THE ATTACK DEPRIVED THEM OF THE PROTECTION
OF THAT SECTION, WHEN READ IN THE LIGHT AND CONTEXT OF THE PURPOSE OF
THE ACT.  PP. 477-478. 

NATIONAL LABOR RELATIONS BOARD V. LOCAL UNION NO. 1229, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

UPON REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 94
N.L.R.B. 1507, THE COURT OF APPEALS REMANDED THE CAUSE TO THE BOARD FOR
FURTHER FINDINGS.  91 U.S. APP. D.C. 333, 202 F.2D 186.  THIS COURT
GRANTED CERTIORARI.  345 U.S. 947.  ORDER OF COURT OF APPEALS SET
ASIDE, AND CAUSE REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS,
P. 478. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE ISSUE BEFORE US IS WHETHER THE DISCHARGE OF CERTAIN EMPLOYEES BY
THEIR EMPLOYER CONSTITUTED AN UNFAIR LABOR PRACTICE, WITHIN THE MEANING
OF SECS. 8(A)(1) AND 7 OF THE TAFT-HARTLEY ACT, (FN1) JUSTIFYING THEIR
REINSTATEMENT BY THE NATIONAL LABOR RELATIONS BOARD.  FOR THE REASON
THAT THEIR DISCHARGE WAS "FOR CAUSE" WITHIN THE MEANING OF SEC. 10(C)
OF THAT ACT, (FN2) WE SUSTAIN THE BOARD IN NOT REQUIRING THEIR
REINSTATEMENT. 

IN 1949, THE JEFFERSON STANDARD BROADCASTING COMPANY (HERE CALLED THE
COMPANY) WAS A NORTH CAROLINA CORPORATION ENGAGED IN INTERSTATE
COMMERCE.  UNDER A LICENSE FROM THE FEDERAL COMMUNICATIONS COMMISSION,
IT OPERATED, AT CHARLOTTE, NORTH CAROLINA, A 50,000-WATT RADIO STATION,
WITH CALL LETTERS WBT.  IT BROADCAST 10 TO 12 HOURS DAILY BY RADIO AND
TELEVISION.  THE TELEVISION SERVICE, WHICH IT STARTED JULY 14, 1949,
REPRESENTING AN INVESTMENT OF ABOUT $500,000, WAS THE ONLY SUCH SERVICE
IN THE AREA.  LESS THAN 50% OF THE STATION'S PROGRAMS ORIGINATED IN
CHARLOTTE.  THE OTHERS WERE PIPED IN OVER LEASED WIRES, GENERALLY FROM
NEW YORK, CALIFORNIA OR ILLINOIS FROM SEVERAL DIFFERENT NETWORKS.  ITS
ANNUAL GROSS REVENUE FROM BROADCASTING OPERATIONS EXCEEDED $100,000 BUT
ITS TELEVISION ENTERPRISE CAUSED IT A MONTHLY LOSS OF ABOUT $10,000
DURING THE FIRST FOUR MONTHS OF THAT OPERATION, INCLUDING THE PERIOD
HERE INVOLVED.  ITS RATES FOR TELEVISION ADVERTISING WERE GEARED TO THE
NUMBER OF RECEIVING SETS IN THE AREA.  LOCAL DEALERS HAD LARGE
INVENTORIES OF SUCH SETS READY TO MEET ANTICIPATED DEMANDS. 

THE COMPANY EMPLOYED 22 TECHNICIANS.  IN DECEMBER 1948, NEGOTIATIONS
TO SETTLE THE TERMS OF THEIR EMPLOYMENT AFTER JANUARY 31, 1949, WERE
BEGUN BETWEEN REPRESENTATIVES OF THE COMPANY AND OF THE RESPONDENT
LOCAL UNION NO. 1229, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AMERICAN FEDERATION OF LABOR (HERE CALLED THE UNION).  THE NEGOTIATIONS
REACHED AN IMPASSE IN JANUARY 1949, AND THE EXISTING CONTRACT OF
EMPLOYMENT EXPIRED JANUARY 31.  THE TECHNICIANS, NEVERTHELESS,
CONTINUED TO WORK FOR THE COMPANY AND THEIR COLLECTIVE-BARGAINING
NEGOTIATIONS WERE RESUMED IN JULY, (FN3) ONLY TO BREAK DOWN AGAIN JULY
8.  THE MAIN POINT OF DISAGREEMENT AROSE FROM THE UNION'S DEMAND FOR
THE RENEWAL OF A PROVISION THAT ALL DISCHARGES FROM EMPLOYMENT BE
SUBJECT TO ARBITRATION AND THE COMPANY'S COUNTERPROPOSAL THAT SUCH
ARBITRATION BE LIMITED TO THE FACTS MATERIAL TO EACH DISCHARGE, LEAVING
IT TO THE COMPANY TO DETERMINE WHETHER THOSE FACTS GAVE ADEQUATE CAUSE
FOR DISCHARGE. 

JULY 9, 1949, THE UNION BEGAN DAILY PEACEFUL PICKETING OF THE
COMPANY'S STATION.  PLACARDS AND HANDBILLS ON THE PICKET LINE CHARGED
THE COMPANY WITH UNFAIRNESS TO ITS TECHNICIANS AND EMPHASIZED THE
COMPANY'S REFUSAL TO RENEW THE PROVISION FOR ARBITRATION OF
DISCHARGES.  THE PLACARDS AND HANDBILLS NAMED THE UNION AS THE
REPRESENTATIVE OF THE WBT TECHNICIANS.  THE EMPLOYEES DID NOT STRIKE. 
THEY CONFINED THEIR RESPECTIVE TOURS OF PICKETING TO THEIR OFF-DUTY
HOURS AND CONTINUED TO DRAW FULL PAY.  THERE WAS NO VIOLENCE OR THREAT
OF VIOLENCE AND NO ONE HAS TAKEN EXCEPTION TO ANY OF THE ABOVE
CONDUCT. 

BUT ON AUGUST 24, 1949, A NEW PROCEDURE MADE ITS APPEARANCE.  WITHOUT
WARNING, SEVERAL OF ITS TECHNICIANS LAUNCHED A VITRIOLIC ATTACK ON THE
QUALITY OF THE COMPANY'S TELEVISION BROADCASTS.  FIVE THOUSAND
HANDBILLS WERE PRINTED OVER THE DESIGNATION "WBT TECHNICIANS."  THESE
WERE DISTRIBUTED ON THE PICKET LINE, ON THE PUBLIC SQUARE TWO OR THREE
BLOCKS FROM THE COMPANY'S PREMISES, IN BARBER SHOPS, RESTAURANTS AND
BUSSES.  SOME WERE MAILED TO LOCAL BUSINESSMEN.  THE HANDBILLS MADE NO
REFERENCE TO THE UNION, TO A LABOR CONTROVERSY OR TO COLLECTIVE
BARGAINING.  THEY READ:

                       "IS CHARLOTTE A SECOND-CLASS CITY? 

"YOU MIGHT THINK SO FROM THE KIND OF TELEVISION PROGRAMS BEING
PRESENTED BY THE JEFFERSON STANDARD BROADCASTING CO. OVER WBTV.  HAVE
YOU SEEN ONE OF THEIR TELEVISION PROGRAMS LATELY?  DID YOU KNOW THAT
ALL THE PROGRAMS PRESENTED OVER WBTV ARE ON FILM AND MAY BE FROM ONE
DAY TO FIVE YEARS OLD.  THERE ARE NO LOCAL PROGRAMS PRESENTED BY WBTV. 
YOU CANNOT RECEIVE THE LOCAL BASEBALL GAMES, FOOTBALL GAMES OR OTHER
LOCAL EVENTS BECAUSE WBTV DOES NOT HAVE THE PROPER EQUIPMENT TO MAKE
THESE PICKUPS.  CITIES LIKE NEW YORK, BOSTON, PHILADELPHIA, WASHINGTON
RECEIVE SUCH PROGRAMS NIGHTLY.  WHY DOESN'T THE JEFFERSON STANDARD
BROADCASTING COMPANY PURCHASE THE NEEDED EQUIPMENT TO BRING YOU THE
SAME TYPE OF PROGRAMS ENJOYED BY OTHER LEADING AMERICAN CITIES?  COULD
IT BE THAT THEY CONSIDER CHARLOTTE A SECOND-CLASS COMMUNITY AND ONLY
ENTITLED TO THE PICTURES NOW BEING PRESENTED TO THEM? 

 "WBT TECHNICIANS" 

THIS ATTACK CONTINUED UNTIL SEPTEMBER 3, 1949, WHEN THE COMPANY
DISCHARGED TEN OF ITS TECHNICIANS, WHOM IT CHARGED WITH SPONSORING OR
DISTRIBUTING THESE HANDBILLS.  THE COMPANY'S LETTER DISCHARGING THEM
TELLS ITS SIDE OF THE STORY.  (FN4) 

SEPTEMBER 4, THE UNION'S PICKETING RESUMED ITS ORIGINAL TENOR AND,
SEPTEMBER 13, THE UNION FILED WITH THE BOARD A CHARGE THAT THE COMPANY,
BY DISCHARGING THE ABOVE-MENTIONED TEN TECHNICIANS, HAD ENGAGED IN AN
UNFAIR LABOR PRACTICE.  THE GENERAL COUNSEL FOR THE BOARD FILED A
COMPLAINT BASED ON THOSE CHARGES AND, AFTER HEARING, A TRIAL EXAMINER
MADE DETAILED FINDINGS AND A RECOMMENDATION THAT ALL OF THOSE
DISCHARGED BE REINSTATED WITH BACK PAY.  (FN5)  94 N.L.R.B. 1507,
1527.  THE BOARD FOUND THAT ONE OF THE DISCHARGED MEN HAD NEITHER
SPONSORED NOR DISTRIBUTED THE "SECOND-CLASS CITY" HANDBILL AND ORDERED
HIS REINSTATEMENT WITH BACK PAY.  IT THEN FOUND THAT THE OTHER NINE HAD
SPONSORED OR DISTRIBUTED THE HANDBILL AND HELD THAT THE COMPANY, BY
DISCHARGING THEM FOR SUCH CONDUCT, HAD NOT ENGAGED IN AN UNFAIR LABOR
PRACTICE.  THE BOARD, ACCORDINGLY, DID NOT ORDER THEIR REINSTATEMENT. 
ONE MEMBER DISSENTED.  ID., AT 1507 ET SEQ. UNDER SEC. 10(F) OF THE
TAFT-HARTLEY ACT, (FN6) THE UNION PETITIONED THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT FOR A REVIEW OF THE BOARD'S ORDER AND
FOR SUCH A MODIFICATION OF IT AS WOULD REINSTATE ALL TEN OF THE
DISCHARGED TECHNICIANS WITH BACK PAY.  THAT COURT REMANDED THE CAUSE TO
THE BOARD FOR FURTHER CONSIDERATION AND FOR A FINDING AS TO THE
"UNLAWFULNESS" OF THE CONDUCT OF THE EMPLOYEES WHICH HAD LED TO THEIR
DISCHARGE.  91 U.S. APP. D.C. 333, 202 F.2D 186.  (FN7)  WE GRANTED
CERTIORARI BECAUSE OF THE IMPORTANCE OF THE CASE IN THE ADMINISTRATION
OF THE TAFT-HARTLEY ACT.  345 U.S. 947. 

IN ITS ESSENCE, THE ISSUE IS SIMPLE.  IT IS WHETHER THESE EMPLOYEES,
WHOSE CONTRACTS OF EMPLOYMENT HAD EXPIRED, WERE DISCHARGED "FOR
CAUSE."  THEY WERE DISCHARGED SOLELY BECAUSE, AT A CRITICAL TIME IN THE
INITIATION OF THE COMPANY'S TELEVISION SERVICE, THEY SPONSORED OR
DISTRIBUTED 5,000 HANDBILLS MAKING A SHARP, PUBLIC, DISPARAGING ATTACK
UPON THE QUALITY OF THE COMPANY'S PRODUCT AND ITS BUSINESS POLICIES, IN
A MANNER REASONABLY CALCULATED TO HARM THE COMPANY'S REPUTATION AND
REDUCE ITS INCOME.  THE ATTACK WAS MADE BY THEM EXPRESSLY AS "WBT
TECHNICIANS."  IT CONTINUED TEN DAYS WITHOUT INDICATION OF ABATEMENT. 
THE BOARD FOUND THAT: 

"IT (THE HANDBILL) OCCASIONED WIDESPREAD COMMENT IN THE COMMUNITY,
AND CAUSED RESPONDENT TO APPREHEND A LOSS OF ADVERTISING REVENUE DUE TO
DISSATISFACTION WITH ITS TELEVISION BROADCASTING SERVICE. 

"IN SHORT, THE EMPLOYEES IN THIS CASE DELIBERATELY UNDERTOOK TO
ALIENATE THEIR EMPLOYER'S CUSTOMERS BY IMPUGNING THE TECHNICAL QUALITY
OF HIS PRODUCT.  AS THE TRIAL EXAMINER FOUND, THEY DID NOT
MISREPRESENT, AT LEAST WILFULLY, THE FACTS THEY CITED TO SUPPORT THEIR
DISPARAGING REPORT.  AND THEIR ULTIMATE PURPOSE - TO EXTRACT A
CONCESSION FROM THE EMPLOYER WITH RESPECT TO THE TERMS OF THEIR
EMPLOYMENT - WAS LAWFUL.  THAT PURPOSE, HOWEVER, WAS UNDISCLOSED; THE
EMPLOYEES PURPORTED TO SPEAK AS EXPERTS, IN THE INTEREST OF CONSUMERS
AND THE PUBLIC AT LARGE.  THEY DID NOT INDICATE THAT THEY SOUGHT TO
SECURE ANY BENEFIT FOR THEMSELVES, AS EMPLOYEES, BY CASTING DISCREDIT
UPON THEIR EMPLOYER."  94 N.L.R.B., AT 1511. 

THE COMPANY'S LETTER SHOWS THAT IT INTERPRETED THE HANDBILL AS A
DEMONSTRATION OF SUCH DETRIMENTAL DISLOYALTY AS TO PROVIDE "CAUSE" FOR
ITS REFUSAL TO CONTINUE IN ITS EMPLOY THE PERPETRATORS OF THE ATTACK. 
WE AGREE. 

ORDER OF THE BOARD SHALL REQUIRE THE REINSTATEMENT OF ANY INDIVIDUAL AS
AN EMPLOYEE WHO HAS BEEN SUSPENDED OR DISCHARGED, OR THE PAYMENT TO HIM
OF ANY BACK PAY, IF SUCH INDIVIDUAL WAS SUSPENDED OR DISCHARGED FOR
CAUSE."  (FN8) THERE IS NO MORE ELEMENTAL CAUSE FOR DISCHARGE OF AN
EMPLOYEE THAN DISLOYALTY TO HIS EMPLOYER.  IT IS EQUALLY ELEMENTAL THAT
THE TAFT-HARTLEY ACT SEEKS TO STRENGTHEN, RATHER THAN TO WEAKEN, THAT
COOPERATION, CONTINUITY OF SERVICE AND CORDIAL CONTRACTUAL RELATION
BETWEEN EMPLOYER AND EMPLOYEE THAT IS BORN OF LOYALTY TO THEIR COMMON
ENTERPRISE.  (FN9) 

CONGRESS, WHILE SAFEGUARDING, IN SEC. 7, THE RIGHT OF EMPLOYEES TO
ENGAGE IN "CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION," (FN10) DID NOT WEAKEN
THE UNDERLYING CONTRACTUAL BONDS AND LOYALTIES OF EMPLOYER AND
EMPLOYEE.  THE CONFERENCE REPORT THAT LED TO THE ENACTMENT OF THE LAW
SAID: 

"THE COURTS HAVE FIRMLY ESTABLISHED THE RULE THAT UNDER THE EXISTING
PROVISIONS OF SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT, EMPLOYEES
ARE NOT GIVEN ANY RIGHT TO ENGAGE IN UNLAWFUL OR OTHER IMPROPER CONDUCT
...  . 

     *         *         *         *         * 

"  ...  FURTHERMORE, IN SECTION 10(C) OF THE AMENDED ACT, AS PROPOSED
IN THE CONFERENCE AGREEMENT, IT IS SPECIFICALLY PROVIDED THAT NO ORDER
OF THE BOARD SHALL REQUIRE THE REINSTATEMENT OF ANY INDIVIDUAL OR THE
PAYMENT TO HIM OF ANY BACK PAY IF SUCH INDIVIDUAL WAS SUSPENDED OR
DISCHARGED FOR CAUSE, AND THIS, OF COURSE, APPLIES WITH EQUAL FORCE
WHETHER OR NOT THE ACTS CONSTITUTING THE CAUSE FOR DISCHARGE WERE
COMMITTED IN CONNECTION WITH A CONCERTED ACTIVITY."  H.R. REP. NO. 510,
80TH CONG., 1ST SESS. 38-39. 

THIS HAS BEEN CLEAR SINCE THE EARLY DAYS OF THE WAGNER ACT.  (FN11)
IN 1937, CHIEF JUSTICE HUGHES, WRITING FOR THE COURT, SAID: 

"THE ACT DOES NOT INTERFERE WITH THE NORMAL EXERCISE OF THE RIGHT OF
THE EMPLOYER TO SELECT ITS EMPLOYEES OR TO DISCHARGE THEM.  THE
EMPLOYER MAY NOT, UNDER COVER OF THAT RIGHT, INTIMIDATE OR COERCE ITS
EMPLOYEES WITH RESPECT TO THEIR SELF-ORGANIZATION AND REPRESENTATION,
AND, ON THE OTHER HAND, THE BOARD IS NOT ENTITLED TO MAKE ITS AUTHORITY
A PRETEXT FOR INTERFERENCE WITH THE RIGHT OF DISCHARGE WHEN THAT RIGHT
IS EXERCISED FOR OTHER REASONS THAN SUCH INTIMIDATION AND COERCION." 
LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1, 45-46.  SEE ALSO, LABOR
BOARD V. FANSTEEL CORP., 306 U.S. 240, 252-258; AUTO.  WORKERS V.
WISCONSIN BOARD, 336 U.S. 245, 260-263. 

MANY CASES REACHING THEIR FINAL DISPOSITION IN THE COURTS OF APPEALS
FURNISH EXAMPLES EMPHASIZING THE IMPORTANCE OF ENFORCING INDUSTRIAL
PLANT DISCIPLINE AND OF MAINTAINING LOYALTY AS WELL AS THE RIGHTS OF
CONCERTED ACTIVITIES.  THE COURTS HAVE REFUSED TO REINSTATE EMPLOYEES
DISCHARGED FOR "CAUSE" CONSISTING OF INSUBORDINATION, DISOBEDIENCE OR
DISLOYALTY.  IN SUCH CASES, IT OFTEN HAS BEEN NECESSARY TO IDENTIFY
INDIVIDUAL EMPLOYEES, SOMEWHAT COMPARABLE TO THE NINE DISCHARGED IN
THIS CASE, AND TO RECOGNIZE THAT THEIR DISCHARGES WERE FOR CAUSES WHICH
WERE SEPARABLE FROM THE CONCERTED ACTIVITIES OF OTHERS WHOSE ACTS MIGHT
COME WITHIN THE PROTECTION OF SEC. 7.  IT HAS BEEN EQUALLY IMPORTANT TO
IDENTIFY EMPLOYEES, COMPARABLE TO THE TENTH MAN IN THE INSTANT CASE,
WHO PARTICIPATED IN SIMULTANEOUS CONCERTED ACTIVITIES FOR THE PURPOSE
OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION BUT WHO
REFRAINED FROM JOINING THE OTHERS IN SEPARABLE ACTS OF INSUBORDINATION,
DISOBEDIENCE OR DISLOYALTY.  IN THE LATTER INSTANCES, THIS SOMETIMES
LED TO A FURTHER INQUIRY TO DETERMINE WHETHER THEIR CONCERTED
ACTIVITIES WERE CARRIED ON IN SUCH A MANNER AS TO COME WITHIN THE
PROTECTION OF SEC. 7.  SEE, E.G., HOOVER CO. V. LABOR BOARD, 191 F.2D
380; MARYLAND DRYDOCK CO. V. LABOR BOARD, 183 F.2D 538; ALBRECHT V.
LABOR BOARD, 181 F.2D 652; LABOR BOARD V. KELCO CORP., 178 F.2D 578;
JOANNA COTTON MILLS CO. V. LABOR BOARD, 176 F.2D 749; LABOR BOARD V.
REYNOLDS PEN CO., 162 F.2D 680; HOME BENEFICIAL LIFE INS. CO. V. LABOR
BOARD, 159 F.2D 280; LABOR BOARD V. MONTGOMERY WARD & CO., 157 F.2D
486; LABOR BOARD V. DRAPER CORP., 145 F.2D 199; LABOR BOARD V. AINTREE
CORP., 135 F.2D 395; UNITED BISCUIT CO. V. LABOR BOARD, 128 F.2D 771;
LABOR BOARD V. CONDENSER CORP., 128 F.2D 67; HAZEL-ATLAS GLASS CO. V.
LABOR BOARD, 127 F.2D 109; CONN, LTD. V. LABOR BOARD, 108 F.2D 390. 
THE ABOVE CASES ILLUSTRATE THE RESPONSIBILITY THAT FALLS UPON THE BOARD
TO FIND THE FACTS MATERIAL TO SUCH DECISIONS.  THE LEGAL PRINCIPLE THAT
INSUBORDINATION, DISOBEDIENCE OR DISLOYALTY IS ADEQUATE CAUSE FOR
DISCHARGE IS PLAIN ENOUGH.  THE DIFFICULTY ARISES IN DETERMINING
WHETHER, IN FACT, THE DISCHARGES ARE MADE BECAUSE OF SUCH A SEPARABLE
CAUSE OR BECAUSE OF SOME OTHER CONCERTED ACTIVITIES ENGAGED IN FOR THE
PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION
WHICH MAY NOT BE ADEQUATE CAUSE FOR DISCHARGE.  CF. LABOR BOARD V.
PETER CAILLER KOHLER CO., 130 F.2D 503.    IN THE INSTANT CASE THE
BOARD FOUND THAT THE COMPANY'S DISCHARGE OF THE NINE OFFENDERS RESULTED
FROM THEIR SPONSORING AND DISTRIBUTING THE "SECOND-CLASS CITY"
HANDBILLS OF AUGUST 24 - SEPTEMBER 3, ISSUED IN THEIR NAME AS THE "WBT
TECHNICIANS."  ASSUMING THAT THERE HAD BEEN NO PENDING LABOR
CONTROVERSY, THE CONDUCT OF THE "WBT TECHNICIANS" FROM AUGUST 24
THROUGH SEPTEMBER 3 UNQUESTIONABLY WOULD HAVE PROVIDED ADEQUATE CAUSE
FOR THEIR DISCIPLINARY DISCHARGE WITHIN THE MEANING OF SEC. 10(C). 
THEIR ATTACK RELATED ITSELF TO NO LABOR PRACTICE OF THE COMPANY.  IT
MADE NO REFERENCE TO WAGES, HOURS OR WORKING CONDITIONS.  THE POLICIES
ATTACKED WERE THOSE OF FINANCE AND PUBLIC RELATIONS FOR WHICH
MANAGEMENT, NOT TECHNICIANS, MUST BE RESPONSIBLE.  THE ATTACK ASKED FOR
NO PUBLIC SYMPATHY OR SUPPORT.  IT WAS A CONTINUING ATTACK, INITIATED
WHILE OFF DUTY, UPON THE VERY INTERESTS WHICH THE ATTACKERS WERE BEING
PAID TO CONSERVE AND DEVELOP.  NOTHING COULD BE FURTHER FROM THE
PURPOSE OF THE ACT THAN TO REQUIRE AN EMPLOYER TO FINANCE SUCH
ACTIVITIES.  NOTHING WOULD CONTRIBUTE LESS TO THE ACT'S DECLARED
PURPOSE OF PROMOTING INDUSTRIAL PEACE AND STABILITY.  (FN12) 

THE FORTUITY OF THE COEXISTENCE OF A LABOR DISPUTE AFFORDS THESE
TECHNICIANS NO SUBSTANTIAL DEFENSE.  WHILE THEY WERE ALSO UNION MEN AND
LEADERS IN THE LABOR CONTROVERSY, THEY TOOK PAINS TO SEPARATE THOSE
CATEGORIES.  IN CONTRAST TO THEIR CLAIMS ON THE PICKET LINE AS TO THE
LABOR CONTROVERSY, THEIR HANDBILL OF AUGUST 24 OMITTED ALL REFERENCE TO
IT.  THE HANDBILL DIVERTED ATTENTION FROM THE LABOR CONTROVERSY.  IT
ATTACKED PUBLIC POLICIES OF THE COMPANY WHICH HAD NO DISCERNIBLE
RELATION TO THAT CONTROVERSY.  THE ONLY CONNECTION BETWEEN THE HANDBILL
AND THE LABOR CONTROVERSY WAS AN ULTIMATE AND UNDISCLOSED PURPOSE OR
MOTIVE ON THE PART OF SOME OF THE SPONSORS THAT, BY THE HOPED-FOR
FINANCIAL PRESSURE, THE ATTACK MIGHT EXTRACT FROM THE COMPANY SOME
FUTURE CONCESSION.  A DISCLOSURE OF THAT MOTIVE MIGHT HAVE LOST MORE
PUBLIC SUPPORT FOR THE EMPLOYEES THAN IT WOULD HAVE GAINED, FOR IT
WOULD HAVE GIVEN THE HANDBILL MORE THE CHARACTER OF COERCION THAN OF
COLLECTIVE BARGAINING.  REFERRING TO THE ATTACK, THE BOARD SAID "IN OUR
JUDGMENT, THESE TACTICS, IN THE CIRCUMSTANCES OF THIS CASE, WERE HARDLY
LESS 'INDEFENSIBLE' THAN ACTS OF PHYSICAL SABOTAGE."  94 N.L.R.B., AT
1511.  IN ANY EVENT, THE FINDINGS OF THE BOARD EFFECTIVELY SEPARATE THE
ATTACK FROM THE LABOR CONTROVERSY AND TREAT IT SOLELY AS ONE MADE BY
THE COMPANY'S TECHNICAL EXPERTS UPON THE QUALITY OF THE COMPANY'S
PRODUCT.  AS SUCH, IT WAS AS ADEQUATE A CAUSE FOR THE DISCHARGE OF ITS
SPONSORS AS IF THE LABOR CONTROVERSY HAD NOT BEEN PENDING.  THE
TECHNICIANS, THEMSELVES, SO HANDLED THEIR ATTACK AS THUS TO BRING THEIR
DISCHARGE UNDER SEC. 10(C). 

THE BOARD STATED "WE  ...  DO NOT DECIDE WHETHER THE DISPARAGEMENT OF
PRODUCT INVOLVED HERE WOULD HAVE JUSTIFIED THE EMPLOYER IN DISCHARGING
THE EMPLOYEES RESPONSIBLE FOR IT, HAD IT BEEN UTTERED IN THE CONTEXT OF
A CONVENTIONAL APPEAL FOR SUPPORT OF THE UNION IN THE LABOR DISPUTE." 
ID., AT 1512, N. 18.  THIS UNDERSCORED THE BOARD'S FACTUAL CONCLUSION
THAT THE ATTACK OF AUGUST 24 WAS NOT PART OF AN APPEAL FOR SUPPORT IN
THE PENDING DISPUTE.  IT WAS A CONCERTED SEPARABLE ATTACK PURPORTING TO
BE MADE IN THE INTEREST OF THE PUBLIC RATHER THAN IN THAT OF THE
EMPLOYEES. 

WE FIND NO OCCASION TO REMAND THIS CAUSE TO THE BOARD FOR FURTHER
SPECIFICITY OF FINDINGS.  EVEN IF THE ATTACK WERE TO BE TREATED, AS THE
BOARD HAS NOT TREATED IT, AS A CONCERTED ACTIVITY WHOLLY OR PARTLY
WITHIN THE SCOPE OF THOSE MENTIONED IN SEC. 7, THE MEANS USED BY THE
TECHNICIANS IN CONDUCTING THE ATTACK HAVE DEPRIVED THE ATTACKERS OF THE
PROTECTION OF THAT SECTION, WHEN READ IN THE LIGHT AND CONTEXT OF THE
PURPOSE OF THE ACT.  (FN13) 

ACCORDINGLY, THE ORDER OF THE COURT OF APPEALS REMANDING THE CAUSE TO
THE NATIONAL LABOR RELATIONS BOARD IS SET ASIDE, AND THE CAUSE IS
REMANDED TO THE COURT OF APPEALS WITH INSTRUCTIONS TO DISMISS
RESPONDENT'S PETITION TO MODIFY THE ORDER OF THE BOARD.  IT IS SO
ORDERED. 

FN1  "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, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM
ANY OR ALL OF SUCH ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY
BE AFFECTED BY AN AGREEMENT REQUIRING MEMBERSHIP IN A LABOR
ORGANIZATION AS A CONDITION OF EMPLOYMENT AS AUTHORIZED IN SECTION
8(A)(3). 

"SEC. 8.  (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 7  ...  ."  NATIONAL LABOR
RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947,
61 STAT. 140, 29 U.S.C. (SUPP. V) SECS. 157, 158(A)(1). 

FN2  "SEC.  10  ...  . 

     *         *         *         *         * 

"(C) ...  IF UPON THE PREPONDERANCE OF THE TESTIMONY TAKEN THE BOARD
SHALL BE OF THE OPINION THAT ANY PERSON NAMED IN THE COMPLAINT HAS
ENGAGED IN OR IS ENGAGING IN ANY SUCH UNFAIR LABOR PRACTICE, THEN THE
BOARD SHALL STATE ITS FINDINGS OF FACT AND SHALL ISSUE AND CAUSE TO BE
SERVED ON SUCH PERSON AN ORDER REQUIRING SUCH PERSON TO CEASE AND
DESIST FROM SUCH UNFAIR LABOR PRACTICE, AND TO TAKE SUCH AFFIRMATIVE
ACTION INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY,
AS WILL EFFECTUATE THE POLICIES OF THIS ACT:  PROVIDED, THAT WHERE AN
ORDER DIRECTS REINSTATEMENT OF AN EMPLOYEE, BACK PAY MAY BE REQUIRED OF
THE EMPLOYER OR LABOR ORGANIZATION, AS THE CASE MAY BE, RESPONSIBLE FOR
THE DISCRIMINATION SUFFERED BY HIM:  ...  .  IF UPON THE PREPONDERANCE
OF THE TESTIMONY TAKEN THE BOARD SHALL NOT BE OF THE OPINION THAT THE
PERSON NAMED IN THE COMPLAINT HAS ENGAGED IN OR IS ENGAGING IN ANY SUCH
UNFAIR LABOR PRACTICE, THEN THE BOARD SHALL STATE ITS FINDINGS OF FACT
AND SHALL ISSUE AN ORDER DISMISSING THE SAID COMPLAINT.  NO ORDER OF
THE BOARD SHALL REQUIRE THE REINSTATEMENT OF ANY INDIVIDUAL AS AN
EMPLOYEE WHO HAS BEEN SUSPENDED OR DISCHARGED, OR THE PAYMENT TO HIM OF
ANY BACK PAY, IF SUCH INDIVIDUAL WAS SUSPENDED OR DISCHARGED FOR CAUSE
...  ."  61 STAT. 146, 147, 29 U.S.C. (SUPP. V) SEC. 160(C). 

FN3  PURSUANT TO PROCEEDINGS BEGUN IN OCTOBER 1948, AND TO AN
ELECTION IN MAY 1949, UNDER THE SUPERVISION OF THE BOARD, THE UNION (BY
A VOTE OF 12 TO 2 OF THE 14 TECHNICIANS PARTICIPATING) WAS CHOSEN AS
THE EXCLUSIVE COLLECTIVE-BARGAINING REPRESENTATIVE OF THE COMPANY'S
TECHNICIANS.  MAY 9, 1949, THE UNION WAS SO CERTIFIED BY THE BOARD.  94
N.L.R.B. 1507, 1529. 

FN4  "DEAR MR. ...  , 

"WHEN YOU AND SOME OF OUR OTHER TECHNICIANS COMMENCED EARLY IN JULY
TO PICKET AGAINST THIS COMPANY, WE FELT THAT YOUR ACTION WAS VERY ILL
CONSIDERED.  WE WERE PAYING YOU A SALARY OF  ...  PER WEEK, TO SAY
NOTHING OF OTHER BENEFITS WHICH YOU RECEIVE AS AN EMPLOYEE OF OUR
COMPANY, SUCH AS TIME-AND-A-HALF PAY FOR ALL WORK BEYOND EIGHT HOURS IN
ANY ONE DAY, THREE WEEKS VACATION EACH YEAR WITH FULL PAY, UNLIMITED
SICK LEAVE WITH FULL PAY, LIBERAL LIFE INSURANCE AND HOSPITALIZATION,
FOR YOU AND YOUR FAMILY, AND RETIREMENT AND PENSION BENEFITS UNEXCELLED
ANYWHERE.  YET WHEN WE WERE UNABLE TO AGREE UPON THE TERMS OF A
CONTRACT WITH YOUR UNION, YOU BEGAN TO DENOUNCE US PUBLICLY AS
'UNFAIR.' 

"AND EVER SINCE EARLY JULY WHILE YOU HAVE BEEN WALKING UP AND DOWN
THE STREET WITH PLACARDS AND LITERATURE ATTACKING US, YOU HAVE
CONTINUED TO HOLD YOUR JOB AND RECEIVE YOUR PAY AND ALL THE OTHER
BENEFITS REFERRED TO ABOVE. 

"EVEN WHEN YOU BEGAN TO PUT OUT PROPAGANDA WHICH CONTAINED MANY
UNTRUTHS ABOUT OUR COMPANY AND GREAT DEAL OF PERSONAL ABUSE AND
SLANDER, WE STILL CONTINUED TO TREAT YOU EXACTLY AS BEFORE.  FOR IT HAS
BEEN OUR UNDERSTANDING THAT UNDER OUR LABOR LAWS, YOU HAVE A VERY GREAT
LATITUDE IN TRYING TO MAKE THE PUBLIC BELIEVE THAT YOUR EMPLOYER IS
UNFAIR TO YOU. 

"NOW, HOWEVER, YOU HAVE TURNED FROM TRYING TO PERSUADE THE PUBLIC
THAT WE ARE UNFAIR TO YOU AND ARE TRYING TO PERSUADE THE PUBLIC THAT WE
GIVE INFERIOR SERVICE TO THEM.  WHILE WE ARE STRUGGLING TO EXPAND INTO
AND DEVELOP A NEW FIELD, AND INCIDENTALLY LOSING LARGE SUMS OF MONEY IN
THE PROCESS, YOU ARE BUSY TRYING TO TURN CUSTOMERS AND THE PUBLIC
AGAINST US IN EVERY POSSIBLE WAY, EVEN HANDING OUT LEAFLETS ON THE
PUBLIC STREETS ADVERTISING THAT OUR OPERATIONS ARE 'SECOND-CLASS,' AND
ENDEAVORING IN VARIOUS WAYS TO HAMPER AND TOTALLY DESTROY OUR
BUSINESS.  CERTAINLY WE ARE NOT REQUIRED BY LAW OR COMMON SENSE TO KEEP
YOU IN OUR EMPLOYMENT AND PAY YOU A SUBSTANTIAL SALARY WHILE YOU THUS
DO YOUR BEST TO TEAR DOWN AND BANKRUPT OUR BUSINESS. 

"YOU ARE HEREBY DISCHARGED FROM OUR EMPLOYMENT.  ALTHOUGH THERE IS
NOTHING REQUIRING US TO DO SO, AND THE CIRCUMSTANCES CERTAINLY DO NOT
CALL FOR OUR DOING SO, WE ARE ENCLOSING A CHECK PAYABLE TO YOUR ORDER
FOR TWO WEEKS' ADVANCE OR SEVERANCE PAY. 

                               "VERY TRULY YOURS,

                    "JEFFERSON STANDARD BROADCASTING COMPANY

                                    "BY: CHARLES H. CRUTCHFIELD

                "VICE PRESIDENT "ENCLOSURE" 

FN5  ALLEGATIONS BASED ON THE SAME FACTS AND CHARGING VIOLATIONS OF
SEC. 8(A)(3) AND (5) OF THE TAFT-HARTLEY ACT DO NOT REQUIRE DISCUSSION
HERE. 

FN6  61 STAT. 148-149, 29 U.S.C. (SUPP. V) SEC. 160(F). 

FN7  THE COURT OF APPEALS SAID: 

"PROTECTION UNDER SEC. 7 OF THE ACT  ...  IS WITHDRAWN ONLY FROM
THOSE CONCERTED ACTIVITIES WHICH CONTRAVENE EITHER (A) SPECIFIC
PROVISIONS OR BASIC POLICIES OF THE ACT OR OF RELATED FEDERAL STATUTES,
OR (B) SPECIFIC RULES OF OTHER FEDERAL OR LOCAL LAW THAT IS NOT
INCOMPATIBLE WITH THE BOARD'S GOVERNING STATUTE  ...  . 

     *         *         *         *         * 

"WE THINK THE BOARD FAILED TO MAKE THE FINDING ESSENTIAL TO ITS
CONCLUSION THAT THE CONCERTED ACTIVITY WAS UNPROTECTED.  SOUND PRACTICE
IN JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS PRECLUDES THIS COURT FROM
DETERMINING 'UNLAWFULNESS' WITHOUT A PRIOR CONSIDERATION AND FINDING BY
THE BOARD."  91 U.S. APP. D.C., AT 335, 336, 202 F.2D, AT 188, 189. 

FN8  SEE NOTE 2, SUPRA. 

FN9  THE ACT'S DECLARATION OF THE POLICY SAYS: 

"SECTION 1  ...  . 

"(B)  INDUSTRIAL STRIFE WHICH INTERFERES WITH THE NORMAL FLOW OF
COMMERCE AND WITH THE FULL PRODUCTION OF ARTICLES AND COMMODITIES FOR
COMMERCE, CAN BE AVOIDED OR SUBSTANTIALLY MINIMIZED IF EMPLOYERS,
EMPLOYEES, AND LABOR ORGANIZATIONS EACH RECOGNIZE UNDER LAW ONE
ANOTHER'S LEGITIMATE RIGHTS IN THEIR RELATIONS WITH EACH OTHER, AND
ABOVE ALL RECOGNIZE UNDER LAW THAT NEITHER PARTY HAS ANY RIGHT IN ITS
RELATIONS WITH ANY OTHER TO ENGAGE IN ACTS OR PRACTICES WHICH
JEOPARDIZE THE PUBLIC HEALTH, SAFETY, OR INTEREST. 

"IT IS THE PURPOSE AND POLICY OF THIS ACT, IN ORDER TO PROMOTE THE
FULL FLOW OF COMMERCE, TO PRESCRIBE THE LEGITIMATE RIGHTS OF BOTH
EMPLOYEES AND EMPLOYERS IN THEIR RELATIONS AFFECTING COMMERCE, TO
PROVIDE ORDERLY AND PEACEFUL PROCEDURES FOR PREVENTING THE INTERFERENCE
BY EITHER WITH THE LEGITIMATE RIGHTS OF THE OTHER, TO PROTECT THE
RIGHTS OF INDIVIDUAL EMPLOYEES IN THEIR RELATIONS WITH LABOR
ORGANIZATIONS WHOSE ACTIVITIES AFFECT COMMERCE, TO DEFINE AND PROSCRIBE
PRACTICES ON THE PART OF LABOR AND MANAGEMENT WHICH AFFECT COMMERCE AND
ARE INIMICAL TO THE GENERAL WELFARE, AND TO PROTECT THE RIGHTS OF THE
PUBLIC IN CONNECTION WITH LABOR DISPUTES AFFECTING COMMERCE."  61 STAT.
136, 29 U.S.C. (SUPP. V) SEC. 141(B). 

FN10  SEE NOTE 1, SUPRA. 

FN11  NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935, 49 STAT. 449, 29
U.S.C. SEC. 151 ET SEQ. 

FN12  "  ...  AN EMPLOYEE CAN NOT WORK AND STRIKE AT THE SAME TIME. 
HE CAN NOT CONTINUE IN HIS EMPLOYMENT AND OPENLY OR SECRETLY REFUSE TO
DO HIS WORK.  HE CAN NOT COLLECT WAGES FOR HIS EMPLOYMENT, AND, AT THE
SAME TIME, ENGAGE IN ACTIVITIES TO INJURE OR DESTROY HIS EMPLOYER'S
BUSINESS."  HOOVER CO. V. LABOR BOARD, 191 F.2D 380, 389, AND SEE LABOR
BOARD V. MONTGOMERY WARD & CO., 157 F.2D 486, 496; UNITED BISCUIT CO.
V. LABOR BOARD, 128 F.2D 771. 

FN13  SEE LABOR BOARD V. ROCKAWAY NEWS CO., 345 U.S. 71 (DISCHARGE,
FOR VIOLATION OF AN OBLIGATION TO MAKE DELIVERIES, EVEN THOUGH CROSSING
A PICKET LINE, SUSTAINED); AUTO.  WORKERS V. WISCONSIN BOARD, 336 U.S.
245, 255-263 (ARBITRARY UNANNOUNCED INTERRUPTIONS OF WORK, NOT
PROTECTED BY SEC. 7); SOUTHERN S.S. CO. V. LABOR BOARD, 316 U.S. 31
(DISCHARGE OF SEAMEN, FOR DISOBEDIENCE ON SHIPBOARD WHILE AWAY FROM
HOME PORT, SUSTAINED); ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S.
740 (MASS PICKETING, UNPROTECTED); HOTEL EMPLOYEES' LOCAL V. WISCONSIN
BOARD, 315 U.S. 437 (VIOLENCE, WHILE PICKETING, UNPROTECTED); LABOR
BOARD V. SANDS MANUFACTURING CO., 306 U.S. 332 (DISCHARGE, FOR
REPUDIATION OF EMPLOYEE'S AGREEMENT, SUSTAINED); LABOR BOARD V.
FANSTEEL CORP., 306 U.S. 240 (DISCHARGE, FOR TORTIOUS CONDUCT, VIOLENCE
OR SIT-DOWN STRIKE, SUSTAINED); AND SEE ASSOCIATED PRESS V. LABOR
BOARD, 301 U.S. 103, 132; LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1,
45-46.  SEE ALSO, COX, THE RIGHT TO ENGAGE IN CONCERTED ACTIVITIES, 26
IND. L.J. 319 (1951); RECENT CASES, 66 HARV. L. REV. 1321 (1953). 
MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS
JOIN, DISSENTING. 

THE ISSUE BEFORE US IS NOT WHETHER THIS COURT WOULD HAVE SUSTAINED
THE BOARD'S ORDER IN THIS CASE HAD WE BEEN CHARGED BY CONGRESS, AS WE
COULD NOT HAVE BEEN, "WITH THE NORMAL AND PRIMARY RESPONSIBILITY FOR
GRANTING OR DENYING ENFORCEMENT OF LABOR BOARD ORDERS."  LABOR BOARD V.
PITTSBURGH S.S. CO., 340 U.S. 498, 502.  THE ISSUE IS WHETHER WE SHOULD
REVERSE THE COURT OF APPEALS, WHICH IS SO CHARGED, BECAUSE THAT COURT
WITHHELD IMMEDIATE DECISION ON THE BOARD'S ORDER AND ASKED THE BOARD
FOR FURTHER LIGHT.  THAT COURT FOUND THAT THE BOARD EMPLOYED AN
IMPROPER STANDARD AS THE BASIS FOR ITS DECISION.  THE BOARD JUDGED THE
CONDUCT IN CONTROVERSY BY FINDING IT "INDEFENSIBLE."  THE COURT OF
APPEALS HELD THAT BY "GIVING 'INDEFENSIBLE' A VAGUE CONTENT DIFFERENT
FROM 'UNLAWFUL,' THE BOARD MISCONCEIVED THE SCOPE OF THE ESTABLISHED
RULE."  91 U.S. APP. D.C. 333, 335, 202 F.2D 186, 188.  WITHIN
"UNLAWFUL" THAT COURT INCLUDED ACTIVITIES WHICH "CONTRAVENE  ...  BASIC
POLICIES OF THE ACT."   THE COURT OF APPEALS REMANDED THE CASE FOR THE
BOARD'S JUDGMENT WHETHER THE CONDUCT OF THE EMPLOYEES WAS PROTECTED BY
SEC. 7 UNDER WHAT IT DEEMED "THE ESTABLISHED RULE." 

ON THIS CENTRAL ISSUE - WHETHER THE COURT OF APPEALS RIGHTLY OR
WRONGLY FOUND THAT THE BOARD APPLIED AN IMPROPER CRITERION - THIS COURT
IS SILENT.  IT DOES NOT SUPPORT THE BOARD IN USING "INDEFENSIBLE" AS
THE LEGAL LITMUS NOR DOES IT REJECT THE COURT OF APPEALS' REJECTION OF
THAT TEST.  THIS COURT PRESUMABLY DOES NOT DISAGREE WITH THE ASSUMPTION
OF THE COURT OF APPEALS THAT CONDUCT MAY BE "INDEFENSIBLE" IN THE
COLLOQUIAL MEANING OF THAT LOOSE ADJECTIVE, AND YET BE WITHIN THE
PROTECTION OF SEC. 7. 

INSTEAD, THE COURT, RELYING ON SEC. 10(C) WHICH PERMITS DISCHARGES
"FOR CAUSE," POINTS TO THE "DISLOYALTY" OF THE EMPLOYEES AND FINDS
SUFFICIENT "CAUSE" REGARDLESS OF WHETHER THE HANDBILL WAS A "CONCERTED
ACTIVITY" WITHIN SEC. 7.  SECTION 10(C) DOES NOT SPEAK OF DISCHARGE
"FOR DISLOYALTY."  IF CONGRESS HAD SO WRITTEN THAT SECTION, IT WOULD
HAVE OVERTURNED MUCH OF THE LAW THAT HAD BEEN DEVELOPED BY THE BOARD
AND THE COURTS IN THE TWELVE YEARS PRECEDING THE TAFT-HARTLEY ACT.  THE
LEGISLATIVE HISTORY MAKES CLEAR THAT CONGRESS HAD NO SUCH PURPOSE BUT
WAS RATHER EXPRESSING APPROVAL OF THE CONSTRUCTION OF "CONCERTED
ACTIVITIES" ADOPTED BY THE BOARD AND THE COURTS.  (FN1)  MANY OF THE
LEGALLY RECOGNIZED TACTICS AND WEAPONS OF LABOR WOULD READILY BE
CONDEMNED FOR "DISLOYALTY" WERE THEY EMPLOYED BETWEEN MAN AND MAN IN
FRIENDLY PERSONAL RELATIONS.  IN THIS CONNECTION IT IS SIGNIFICANT THAT
THE GROUND NOW TAKEN BY THE COURT, INSOFAR AS IT IS DERIVED FROM THE
PROVISION OF SEC. 10(C) RELATING TO DISCHARGE "FOR CAUSE," WAS NOT
INVOKED BY THE BOARD IN JUSTIFICATION OF ITS ORDER. 

TO SUGGEST THAT ALL ACTIONS WHICH IN THE ABSENCE OF A LABOR
CONTROVERSY MIGHT BE "CAUSE" - OR, TO USE THE WORDS COMMONLY FOUND IN
LABOR AGREEMENTS, "JUST CAUSE" - FOR DISCHARGE SHOULD BE UNPROTECTED,
EVEN WHEN SUCH ACTIONS WERE UNDERTAKEN AS "CONCERTED ACTIVITIES, FOR
THE PURPOSE OF COLLECTIVE BARGAINING," IS TO MISCONSTRUE LEGISLATION
DESIGNED TO PUT LABOR ON A FAIR FOOTING WITH MANAGEMENT.  FURTHERMORE,
IT WOULD DISREGARD THE ROUGH AND TUMBLE OF STRIKES, IN THE COURSE OF
WHICH LOOSE AND EVEN RECKLESS LANGUAGE IS PROPERLY DISCOUNTED. 

"CONCERTED ACTIVITIES" BY EMPLOYEES AND DISMISSAL "FOR CAUSE" BY
EMPLOYERS ARE NOT DISSOCIATED LEGAL CRITERIA UNDER THE ACT.  THEY ARE
LIKE THE TWO HALVES OF A PAIR OF SHEARS.  OF COURSE, AS THE CONFERENCE
REPORT ON THE TAFT-HARTLEY ACT SAID, MEN ON STRIKE MAY BE GUILTY OF
CONDUCT "IN CONNECTION WITH A CONCERTED ACTIVITY" WHICH PROPERLY
CONSTITUTES "CAUSE" FOR DISMISSAL AND BARS REINSTATEMENT.  (FN2)  BUT
SEC. 10(C) DOES NOT OBVIATE THE NECESSITY FOR A DETERMINATION WHETHER
THE DISTRIBUTION OF THE HANDBILL HERE WAS A LEGITIMATE TOOL IN A LABOR
DISPUTE OR WAS SO "IMPROPER," AS THE CONFERENCE REPORT PUT IT, AS TO BE
DENIED THE PROTECTION OF SEC. 7 AND TO CONSTITUTE A DISCHARGE "FOR
CAUSE."  IT IS FOR THE BOARD, IN THE FIRST INSTANCE, TO MAKE THESE
EVALUATIONS, AND A COURT OF APPEALS DOES NOT TRAVEL BEYOND ITS PROPER
BOUNDS IN ASKING THE BOARD FOR GREATER EXPLICITNESS IN LIGHT OF THE
CORRECT LEGAL STANDARDS FOR JUDGMENT. 

THE BOARD AND THE COURTS OF APPEALS WILL HARDLY FIND GUIDANCE FOR
FUTURE CASES FROM THIS COURT'S REVERSAL OF THE COURT OF APPEALS, BEYOND
THAT WHICH THE SPECIFIC FACTS OF THIS CASE MAY AFFORD.  MORE THAN THAT,
TO FLOAT SUCH IMPRECISE NOTIONS AS "DISCIPLINE" AND "LOYALTY" IN THE
CONTEXT OF LABOR CONTROVERSIES, AS THE BASIS OF THE RIGHT TO DISCHARGE,
IS TO OPEN THE DOOR WIDE TO INDIVIDUAL JUDGMENT BY BOARD MEMBERS AND
JUDGES.  ONE MAY ANTICIPATE THAT THE COURT'S OPINION WILL NEEDLESSLY
STIMULATE LITIGATION. 

COURSE OF PROMOTING LEGITIMATE INTERESTS OF LABOR.  BUT TO TREAT THE
OFFENSIVE HANDBILLS HERE AS THOUGH THEY WERE CIRCULATED BY THE
TECHNICIANS AS INTERLOPING OUTSIDERS TO THE SUSTAINED DISPUTE BETWEEN
THEM AND THEIR EMPLOYER IS A VERY UNREAL WAY OF LOOKING AT THE
CIRCUMSTANCES OF A LABOR CONTROVERSY.  CERTAINLY THERE IS NOTHING IN
THE LANGUAGE OF THE ACT OR IN THE LEGISLATIVE HISTORY TO INDICATE THAT
ONLY CONVENTIONAL PLACARDS AND HANDBILLS, HEADED BY A TRITE PHRASE SUCH
AS "UNFAIR TO LABOR," ARE PROTECTED.  IN ANY EVENT, ON A REMAND THE
BOARD COULD PROPERLY BE ASKED TO LEAVE NO DOUBT WHETHER THE
TECHNICIANS, IN DISTRIBUTING THE HANDBILLS, WERE, SO FAR AS THE PUBLIC
COULD TELL, ON A FROLIC OF THEIR OWN OR WHETHER THIS TACTIC, HOWEVER
UNORTHODOX, WAS NO MORE UNLAWFUL THAN OTHER UNION BEHAVIOR PREVIOUSLY
FOUND TO BE ENTITLED TO PROTECTION. 

IT FOLLOWS THAT THE COURT OF APPEALS SHOULD NOT BE REVERSED. 

FN1  H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 27-28; H.R. REP. NO.
510, 80TH CONG., 1ST SESS. 38-39. 

FN2  H.R. REP. NO. 510, 80TH CONG., 1ST SESS. 39. 
..END :








BANKERS LIFE & CASUALTY CO. V. HOLLAND 346 U.S. 379 


NO. 16.  ARGUED OCTOBER 12-13, 1953 - DECIDED NOVEMBER 30, 1953 - 199
F.2D 593, AFFIRMED. 


IN THE CIRCUMSTANCES OF THIS CASE, MANDAMUS AGAINST A FEDERAL DISTRICT
JUDGE WAS NOT AN APPROPRIATE REMEDY TO VACATE A SEVERANCE AND TRANSFER
ORDER ENTERED BY HIM UNDER 28 U.S.C. SEC. 1406(A) ON THE GROUND OF
IMPROPER VENUE.  PP. 379-385. 

(A)  THE SUPPLEMENTARY REVIEW POWER CONFERRED ON FEDERAL COURTS BY
THE ALL WRITS ACT IS MEANT TO BE USED ONLY IN EXCEPTIONAL CASES WHERE
THERE IS A CLEAR ABUSE OF DISCRETION OR USURPATION OF JUDICIAL POWER;
AND THIS IS NOT SUCH A CASE.  PP. 382-383. 

(B) USE OF THE WRIT OF MANDAMUS WAS NOT APPROPRIATE IN THIS CASE TO
PREVENT ALLEGED INCONVENIENCE AND HARDSHIP OCCASIONED BY AN APPEAL
BEING DELAYED UNTIL AFTER FINAL JUDGMENT.  PP. 383-384. 

(C)  PETITIONER HAS NOT MET THE BURDEN OF SHOWING THAT ITS RIGHT TO
ISSUANCE OF THE WRIT IS "CLEAR AND INDISPUTABLE."  P. 384. 

BANKERS LIFE & CASUALTY CO. V. HOLLAND, CHIEF JUDGE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

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. SEC. 1406(A).  (FN1) 

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. 
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. 

THE APPLICABLE VENUE STATUTE FOR PRIVATE TREBLE DAMAGE ACTIONS
BROUGHT UNDER THE ANTITRUST LAWS, 15 U.S.C. SEC. 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, 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. SEC. 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.  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. 

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.  (FN2)  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. 

WE ARE OF THE OPINION THAT IN THE CIRCUMSTANCES OF THIS CASE THE WRIT
WAS INAPPROPRIATE. 

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. SEC. 1651(A).  AS WAS POINTED OUT IN ROCHE V. EVAPORATED MILK
ASSN., 319 U.S. 21, 26 (1943), 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., 230 U.S. 35, 45-46 (1913); EX PARTE ROE, 234 U.S. 70, 73
(1914).  ITS DECISION AGAINST PETITIONER, EVEN IF ERRONEOUS - WHICH WE
DO NOT PASS UPON - INVOLVED NO ABUSE OF JUDICIAL POWER, ROCHE V.
EVAPORATED MILK ASSN., SUPRA, AND IS REVIEWABLE UPON APPEAL AFTER FINAL
JUDGMENT.  (FN3)  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, (FN4) 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, 325 U.S. 212, 217 (1945).  THIS IS NOT SUCH A CASE. 

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, 332 U.S. 258, 259-260 (1947),
EVEN THOUGH HARDSHIP MAY RESULT FROM DELAY AND PERHAPS UNNECESSARY
TRIAL, UNITED STATES ALKALI EXPORT ASSN. V. UNITED STATES, 325 U. S.
196, 202-203 (1945); ROCHE V. EVAPORATED MILK ASSN., SUPRA, AT 31; AND
WHATEVER MAY BE DONE WITHOUT THE WRIT MAY NOT BE DONE WITH IT.  EX
PARTE ROWLAND, 104 U.S. 604, 617 (1882).  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 A 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.  (FN5)  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. 

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, 172 U.S. 576, 582 (1899). 
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, (FN6) CONGRESS BY 15 U.S.C.
SEC. 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. 

WE ADHERE TO THE LANGUAGE OF THIS COURT IN EX PARTE FAHEY, SUPRA, AT
259-260: 

"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."  AFFIRMED. 

FN1  "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." 

FN2  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." 

FN3  SEE GULF RESEARCH & DEVELOPMENT CO. V. LEAHY, 193 F.2D 302
(1951). 

FN4  28 U.S.C. SECS. 1291, 1292. 

FN5  EX PARTE SIMONS, 247 U.S. 231 (1918); UNITED STATES ALKALI
EXPORT ASSN. V. UNITED STATES, SUPRA; DE BEERS CONSOLIDATED MINES V.
UNITED STATES, SUPRA.  SEE ALSO EX PARTE UNITED STATES, 287 U.S. 241
(1932); MARYLAND V. SOPER, 270 U.S. 9 (1926). 

FN6  UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392, 402-403
(1927); UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 252-253
(1940). 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON AND MR. JUSTICE
MINTON JOIN, DISSENTING. 

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. 

1.  WHATEVER VIEW ONE MAY TAKE OF THE SCOPE OF THE VENUE REQUIREMENT
OF SEC. 4 OF THE CLAYTON ACT, 15 U.S.C. SEC. 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. 

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. 

2.  THE ONLY BASIS, ON THE RECORD BEFORE US, FOR THE CLAIM THAT SEC.
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 SEC. 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.  (FN1)  345 U.S. 933. 

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. SEC. 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. 

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.  (FN2)    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 MR. CHIEF JUSTICE TAFT ON BEHALF OF THE WHOLE COURT IN LAYNE &
BOWLER CORP. V. WESTERN WELL WORKS, INC., 261 U.S. 387, 393. 

"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."  (FN3) 

THE CASE BEFORE US IS MORE COMPELLING FOR DISMISSAL, SINCE THE
QUESTION ON WHICH WE GRANTED CERTIORARI DOES NOT HERE ARISE. 

6.  DISCUSSION OF MANDAMUS IN THIS CASE IS NOT EVEN USEFUL AS DICTA
FOR FUTURE GUIDANCE ON AN IMPORTANT ISSUE.  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, WITH EX PARTE CHICAGO, R.I.&P.R. CO., 255
U.S. 273.  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. 

FN1  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. SEC. 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. SEC. 1406(A)? 

"3.  IS A NON-RESIDENT CONSPIRATOR 'FOUND' FOR VENUE PURPOSES WITHIN
THE MEANING OF 15 U.S.C. SEC. 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. SEC. 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?" 

FN2  IT SHOULD BE NOTED THAT DURING THE LAST TERM THE COURT DISPOSED
OF 1,286 CASES. 

FN3  THE CASE OF HAMMERSTEIN V. SUPERIOR COURT, 341 U.S. 491, 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. 
..END :














DICKINSON V. UNITED STATES 346 U.S. 389 


NO. 57.  ARGUED OCTOBER 21, 1953 - DECIDED NOVEMBER 30, 1953 - 203 F.2D
336, REVERSED. 


THERE WAS NO BASIS IN FACT FOR DENYING PETITIONER'S CLAIM TO
MINISTERIAL EXEMPTION UNDER SEC. 6(G) OF THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT, AND HIS CONVICTION FOR REFUSING TO SUBMIT TO
HIS LOCAL BOARD'S INDUCTION ORDER IS REVERSED.  PP. 390-397. 

(A)  THE PROVISION OF THE ACT THAT CLASSIFICATION ORDERS BY SELECTIVE
SERVICE AUTHORITIES SHALL BE "FINAL" DOES NOT PRECLUDE JUDICIAL INQUIRY
INTO THE QUESTION OF JURISDICTION WHERE THERE IS NO BASIS IN FACT FOR
THE CLASSIFICATION ORDER.  P. 394. 

(B)  THE MINISTERIAL EXEMPTION BEING A MATTER OF LEGISLATIVE GRACE,
THE REGISTRANT BEARS THE BURDEN OF CLEARLY ESTABLISHING A RIGHT TO THE
EXEMPTION.  PP. 394-395. 

(C)  PETITIONER MADE OUT A PRIMA FACIE CASE WITHIN THE STATUTORY
EXEMPTION BY UNCONTROVERTED EVIDENCE THAT HE WAS ORDAINED IN ACCORDANCE
WITH THE RITUAL OF HIS SECT (JEHOVAH'S WITNESSES) AND THAT HE WAS
REGULARLY ENGAGED, AS A VOCATION, IN TEACHING AND PREACHING THE
PRINCIPLES OF HIS SECT AND CONDUCTING PUBLIC WORSHIP IN THE TRADITION
OF HIS RELIGION.  P. 395. 

(D)  THAT PETITIONER WORKED FIVE HOURS A WEEK AS A RADIO REPAIRMAN
DID NOT SUPPLY A FACTUAL BASIS FOR DENIAL OF THE MINISTERIAL EXEMPTION
TO WHICH HE WAS OTHERWISE ENTITLED.  PP.  395-396. 

(E)  THERE IS NO AFFIRMATIVE EVIDENCE IN THE RECORD IN THIS CASE TO
SUPPORT THE LOCAL BOARD'S OVERT OR IMPLICIT FINDING THAT PETITIONER HAD
NOT PAINTED A COMPLETE OR ACCURATE PICTURE OF HIS ACTIVITIES.  P. 396. 

(F)  WHEN THE UNCONTROVERTED EVIDENCE SUPPORTING A REGISTRANT'S CLAIM
PLACES HIM PRIMA FACIE WITHIN THE STATUTORY EXEMPTION, THE CLAIM MAY
NOT BE DISMISSED SOLELY ON THE BASIS OF SUSPICION AND SPECULATION.  PP.
396-397. 

DICKINSON V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

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 SEC. 6(G) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 62
STAT. 611, 50 U.S.C. APP. SEC. 456(G).  (FN1)  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, (FN2) OF VIOLATING SEC. 12(A) (FN3) 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. 

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." 
ORDAINED MINISTER OF RELIGION." 

"(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. 

"(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. 

"(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.  SEC. 1622.43.  (FN4) 

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. 

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. 

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.  (FN5)  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. 

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. 

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, (FN6) THAT CLASSIFICATION ORDERS BY SELECTIVE SERVICE
AUTHORITIES SHALL BE "FINAL."  HOWEVER, IN ESTEP V. UNITED STATES, 327
U.S. 114 (1946), A CASE ARISING UNDER THE 1940 ACT, THIS COURT SAID, AT
122-123:  "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." 

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, 332 U.S. 442 (1947).  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 SEC. 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.  (FN7) 

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
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. 

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. 

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. 

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.  (FN8)  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. SEC.
1621.15.  THE BOARD IS AUTHORIZED TO OBTAIN INFORMATION FROM LOCAL,
STATE, AND NATIONAL WELFARE AND GOVERNMENTAL AGENCIES.  32 C.F.R. SEC.
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.  REVERSED. 

FN1  THE TITLE WAS CHANGED FROM THE "SELECTIVE SERVICE ACT OF 1948"
TO THE "UNIVERSAL MILITARY TRAINING AND SERVICE ACT" BY 65 STAT. 75. 

FN2  PETITIONER WAIVED TRIAL BY JURY IN ACCORDANCE WITH RULE 23 OF
THE RULES OF CRIMINAL PROCEDURE. 

FN3  "ANY  ...  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. 

FN4 FORMERLY THIS REGULATION WAS NUMBERED SEC. 1622.19, 32 C.F.R.
SEC. 1622.19 (1949). 

FN5  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. 

FN6  40 STAT. 80 (1917), 54 STAT. 893 (1940). 

FN7  SEE 32 C.F.R. SEC. 1622.1(C). 

FN8  32 C.F.R. SEC. 1622.1(C).  SEE LEHR V. UNITED STATES, 139 F.2D
919, 922 (1944). 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE BURTON AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

THIS COURT HELD IN ESTEP V. UNITED STATES, 327 U.S. 114, THAT IN A
CRIMINAL PROSECUTION UNDER SEC. 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."  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.  (FN1)  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. 

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
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. 

NO ALLEGATION HAS BEEN 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. 

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. 

THERE IS NOTHING IN THE ACT WHICH REQUIRES THIS RESULT.  (FN2)  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. APP. SECS. 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. APP. SEC.
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. APP. SEC. 460(B)(3). 

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. 

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 LAW,
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. 

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. 

FN1  EAGLES V. UNITED STATES EX REL. SAMUELS, 329 U.S. 304, 316-317;
GIBSON V. UNITED STATES, 329 U.S. 338; SUNAL V. LARGE, 332 U.S. 174,
176; COX V. UNITED STATES, 332 U.S. 442, 448, 451-455. 

FN2  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., SEC. 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. 
..END :





















PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED AIR LINES, INC. 346
U.S. 402 


NO. 87.  ARGUED NOVEMBER 12-13, 1953 - DECIDED NOVEMBER 30, 1953 - 109
F. SUPP. 13, REVERSED. 


THE JUDGMENT IN THIS CASE IS REVERSED ON THE AUTHORITY OF PUBLIC
SERVICE COMM'N V. WYCOFF CO., 344 U.S. 237. 

PUBLIC UTILITIES COMMISSION OF CALIFORNIA ET AL. V. UNITED AIR LINES,
INC. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

PER CURIAM. 

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 V. WYCOFF CO.,
344 U.S. 237.  REVERSED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED CONCURS, DISSENTING. 

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. SEC. 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. 

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. 

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 SOMETIMES 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 INTERESTS 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. 

THE DECLARATORY JUDGMENT ACT, 28 U.S.C. SEC. 2201, WHICH OPERATES
WITHIN THE CONFINES OF THE "CASE" AND "CONTROVERSY" STANDARDS OF THE
CONSTITUTION (SEE AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227), 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. 

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-DRAWN-OUT
LITIGATION. 

DECLARATORY RELIEF IS PECULIARLY APPROPRIATE IN CASE OF A
JURISDICTIONAL CONTROVERSY WHICH CAN BE SETTLED BY A RULING OF LAW. 
SEE ORDER OF CONDUCTORS V. SWAN, 329 U.S. 520.  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 PRE
EMPTED THE FIELD.  RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218.  BY
THE SAME TOKEN WE SHOULD SETTLE THIS CONTROVERSY AT THIS EARLY STAGE. 
BY DENYING RELIEF WE ADVANCE NO CAUSE EXCEPT THAT OF LITIGATION. 
..END :

















ARKANSAS V. TEXAS 346 U.S. 368 


NO. - , ORIGINAL.  ARGUED OCTOBER 21, 1953 - DECIDED NOVEMBER 16, 1953. 


INVOKING THE ORIGINAL JURISDICTION OF THIS COURT UNDER ART. III, SEC.
2, OF THE CONSTITUTION, ARKANSAS FILED A MOTION FOR LEAVE TO FILE A
COMPLAINT AGAINST TEXAS.  THE COMPLAINT ALLEGED THAT THE UNIVERSITY OF
ARKANSAS ENTERED INTO A CONTRACT WITH A TEXAS CHARITABLE CORPORATION
WHEREBY THE CORPORATION AGREED TO CONTRIBUTE MONEY TO THE CONSTRUCTION
OF A FLOOR IN A NEW HOSPITAL IN THE ARKANSAS STATE MEDICAL CENTER;
THAT, THOUGH THE CORPORATION IS WILLING TO PERFORM, TEXAS HAS FILED
SUIT IN THE TEXAS COURTS TO ENJOIN IT ON THE GROUND THAT UNDER TEXAS
LAW ITS FUNDS MUST BE EXPENDED FOR THE BENEFIT OF RESIDENTS OF TEXAS;
AND THAT THE UNIVERSITY HAS LET CONTRACTS FOR THE CONSTRUCTION OF THE
HOSPITAL, NOW PARTIALLY COMPLETED, BUT IS WITHOUT FUNDS TO PROCEED
FURTHER UNLESS TEXAS IS ENJOINED FROM INTERFERING.  HELD: 

1.  THE CORPORATION IS NOT AN INDISPENSABLE PARTY TO THE SUIT.  PP.
369-370. 

2.  THE CONTROVERSY IS BETWEEN TWO STATES, SINCE THE STATE OF
ARKANSAS IS THE REAL PARTY IN INTEREST IN THE CONTRACT WITH THE TEXAS
CORPORATION AND THE COMPLAINT ALLEGES THAT TEXAS IS UNLAWFULLY
INTERFERING WITH ITS PERFORMANCE.  PP. 370-371. 

3.  THE QUESTION WHETHER THE CORPORATION HAS AUTHORITY TO EXPEND ITS
FUNDS IN FURTHERANCE OF THE ARKANSAS PROJECT IS A QUESTION OF TEXAS
LAW.  HENCE THE PRESENT MOTION IS CONTINUED, WITHOUT ANY EXPRESSION OF
OPINION ON THE MERITS, UNTIL THE LITIGATION IN THE TEXAS COURTS HAS
BEEN CONCLUDED.  P. 371. 

ARKANSAS V. TEXAS ET AL. 

ON MOTION FOR LEAVE TO FILE A COMPLAINT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A MOTION BY ARKANSAS TO FILE A COMPLAINT AGAINST TEXAS AND
INVOKE OUR ORIGINAL JURISDICTION GRANTED BY ART. III, SEC. 2, OF THE
CONSTITUTION. 

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 GROUND 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. 

WE ISSUED A RULE TO SHOW CAUSE WHY LEAVE TO FILE THE COMPLAINT SHOULD
NOT BE GRANTED, 345 U.S. 954.  TEXAS HAS MADE RETURN TO THE RULE AND
THE CASE HAS BEEN ARGUED. 

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; BITTERMAN V. LOUISVILLE & N.R.
CO., 207 U.S. 205, 222-223.  HOWEVER APPROPRIATE IT MIGHT BE TO JOIN
THE FOUNDATION AS A DEFENDANT IN THE CASE (SEE TEXAS V. FLORIDA, 306
U.S. 398, 405), THE CONTROVERSY IS BETWEEN ARKANSAS AND TEXAS - THE
ISSUE BEING WHETHER TEXAS IS INTERFERING UNLAWFULLY WITH ARKANSAS'
CONTRACT. 

THE CONTENTION THAT THE CONTROVERSY IS BETWEEN TWO STATES 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 OR CORPORATIONS.  OKLAHOMA V. COOK, 304 U.S. 387.  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. 

THE UNIVERSITY, WHICH WAS CREATED BY THE ARKANSAS LEGISLATURE, (FN1)
IS GOVERNED BY A BOARD OF TRUSTEES APPOINTED BY THE GOVERNOR WITH
CONSENT OF THE SENATE.  (FN2)  THE BOARD, TO BE SURE, IS "A BODY
POLITIC AND CORPORATE" (FN3) WITH POWER TO ISSUE BONDS WHICH DO NOT
PLEDGE THE CREDIT OF THE STATE.  (FN4)  BUT THE BOARD MUST REPORT ALL
OF ITS EXPENDITURES TO THE LEGISLATURE, (FN5) AND THE STATE OWNS ALL
THE PROPERTY USED BY THE UNIVERSITY.  (FN6)  THE BOARD OF TRUSTEES IS
DENOMINATED "A PUBLIC AGENCY" OF THE STATE, (FN7) THE UNIVERSITY IS
REFERRED TO AS "AN INSTRUMENT OF THE STATE IN THE PERFORMANCE OF A
GOVERNMENTAL WORK," (FN8) AND A SUIT AGAINST THE UNIVERSITY IS A SUIT
AGAINST THE STATE.  (FN9) 

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. 
OKLAHOMA V. COOK, SUPRA, PP. 392-396.  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. 

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 POWER 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; HERB V.
PITCAIRN, 324 U.S. 117) 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. 

FN1  SEE ARK. ACTS 1871, NO. 44; ARK. STAT., 1947, SEC. 80-2801,
COMPILER'S NOTES. 

FN2  ARK. STAT., 1947, SEC. 80-2802. 

FN3  ARK. STAT., 1947, SEC. 80-2804. 

FN4  JACOBS V. SHARP, 211 ARK. 865, 202 S.W.2D 964. 

FN5  ARK. STAT., 1947, SEC. 80-2817. 

FN6  ID., SECS. 80-2849 FF.; 80-2905; 80-3311. 

FN7  JACOBS V. SHARP, 211 ARK., AT 866, 202 S.W.2D 964. 

FN8  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. 

FN9  SEE ALLEN ENGINEERING CO. V. KAYS, 106 ARK. 174, 152 S.W. 992. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK
AND MR. JUSTICE MINTON JOIN, DISSENTING. 

WE WOULD DENY THIS MOTION OUTRIGHT, BECAUSE WE THINK NO CASE IS
PRESENTED APPROPRIATE FOR ORIGINAL ACTION HERE. 

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. 

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
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. 

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. 

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 TO THE ORIGINAL CONCEPTION OF STATE POWER.  THIS COURT
SEEMS TO AGREE THAT SOME VESTIGE, AT LEAST, OF SUCH POWER REMAINS. 

IF A CONTROVERSY BETWEEN TWO STATES CONCERNS THE CONSTRUCTION OF A
COMPACT, DYER V. SIMS, 341 U.S. 22, OR PRESENTS "A QUESTION OF 'FEDERAL
COMMON LAW' UPON WHICH NEITHER THE STATUTES NOR THE DECISIONS OF EITHER
STATE CAN BE CONCLUSIVE," HINDERLIDER V. LAPLATA CO., 304 U.S. 92, 110,
THIS COURT MUST, OF COURSE, DETERMINE THEIR RIGHTS INTER SESE. 

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 KENTUCKY V. INDIANA, 281 U.S. 163, 177. 

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. 

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. 
..END :


















UNITED STATES V. DEBROW 346 U.S. 374 


NO. 51.  ARGUED OCTOBER 20, 1953 - DECIDED NOVEMBER 16, 1953 - 203 F.2D
699, REVERSED. 


THE INDICTMENTS OF RESPONDENTS UNDER 18 U.S.C. SEC. 1621 FOR PERJURY
IN WILFULLY TESTIFYING FALSELY TO MATERIAL FACTS, AFTER EACH HAD "DULY
TAKEN AN OATH," BEFORE A SENATORIAL SUBCOMMITTEE DULY CREATED AND DULY
AUTHORIZED TO ADMINISTER OATHS, COMPLIED WITH RULE 7(C) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE; AND THEY SHOULD NOT HAVE BEEN DISMISSED
FOR FAILURE TO ALLEGE THE NAME OF THE PERSON WHO ADMINISTERED THE OATHS
OR HIS AUTHORITY TO DO SO.  PP. 375-378. 

(A)  THE NAME OF THE PERSON WHO ADMINISTERED THE OATH IS NOT AN
ESSENTIAL ELEMENT OF THE CRIME OF PERJURY.  PP. 376-377. 

(B)  R.S. SEC. 5396, WHICH REQUIRED THAT AN INDICTMENT FOR PERJURY
AVER THE NAME AND AUTHORITY OF THE PERSON WHO ADMINISTERED THE OATH,
WAS REPEALED BY THE ACT OF JUNE 25, 1948, 62 STAT. 862, REVISING THE
CRIMINAL CODE.  P. 377. 

UNITED STATES V. DEBROW. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT.* 

*TOGETHER WITH NO. 52, UNITED STATES V. WILKINSON; NO. 53, UNITED
STATES V. BRASHIER; NO. 54, UNITED STATES V. ROGERS; AND NO. 55, UNITED
STATES V. JACKSON, ALL ON CERTIORARI TO THE SAME COURT. 

THE DISTRICT COURT DISMISSED INDICTMENTS OF THE RESPONDENTS FOR
PERJURY.  THE COURT OF APPEALS AFFIRMED.  203 F.2D 699.  THIS COURT
GRANTED CERTIORARI.  345 U.S. 991.  REVERSED, P. 378. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS HERE, DEFENDANTS BELOW, WERE CHARGED BY SEPARATE
INDICTMENTS WITH THE CRIME OF PERJURY, AS DEFINED IN 18 U.S.C. SEC.
1621.  (FN1)  EACH INDICTMENT READ IN MATERIAL PART AS FOLLOWS: 

"THE 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 ...
." 

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.  (FN2) THE COURT OF
APPEALS AFFIRMED, ONE JUDGE DISSENTING, 203 F.2D 699, AND WE GRANTED
CERTIORARI, 345 U.S. 991, BECAUSE OF THE IMPORTANCE OF THE QUESTION IN
THE ADMINISTRATION OF FEDERAL CRIMINAL LAW. 

AN INDICTMENT IS REQUIRED TO SET FORTH THE ELEMENTS OF THE OFFENSE
SOUGHT TO BE CHARGED. 

"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 OFFENCE,
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; ROSEN V. UNITED STATES, 161 U.S. 29, 34."  HAGNER V.
UNITED STATES, 285 U.S. 427, 431. 

THE FEDERAL RULES OF CRIMINAL PROCEDURE 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: 

"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  ...  ." 

THE ESSENTIAL ELEMENT OF THE CRIME OF PERJURY AS DEFINED IN 18 U.S.C.
SEC. 1621 ARE (1) AN OATH AUTHORIZED BY A 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. 

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.  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. 

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. SEC. 5396, 18 U.S.C. (1940 ED.)  SEC.  558.  IT MAY
BE WORTHY TO 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. SEC. 5396 WAS REPEALED BECAUSE
"COVERED BY RULE 7 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE."  ID.,
AT A214. 

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. 

THE INDICTMENTS WERE SUFFICIENT, AND THE DISMISSAL THEREOF WAS
ERROR.  THE JUDGMENTS ARE REVERSED. 

FN1  "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." 

FN2  UNITED STATES V. DEBROW ET AL., U.S.D.C.S.D. MISS., FEB. 11,
1952 (UNREPORTED). 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :










VORIS V. EIKEL, DBA SOUTHERN STEVEDORING & CONTRACTING CO. 346 U.S. 328 



NO. 20.  ARGUED OCTOBER 14, 1953 - DECIDED NOVEMBER 9, 1953 - 200 F.2D
724, REVERSED. 


PETITIONER, A STEVEDORE SUBJECT TO THE PROVISIONS OF THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, SUFFERED AN INJURY
IN THE COURSE OF HIS EMPLOYMENT THAT NECESSITATED REMOVING HIM FROM HIS
JOB TO HIS HOME.  WRITTEN NOTICE OF THE INJURY WAS NOT GIVEN TO THE
EMPLOYER UNTIL SIX MONTHS LATER; BUT THE FOREMAN OF THE GANG IN WHICH
PETITIONER WORKED AND THE WALKING FOREMAN WHO HAD EMPLOYED PETITIONER
AND WHO SUPERVISED HIS WORK HAD ACTUAL NOTICE ON THE DAY OF THE
ACCIDENT, AND THE LATTER REPORTED IT TO THE TIMEKEEPER.  IT WAS
CUSTOMARY FOR AN INJURED EMPLOYEE TO REPORT TO HIS IMMEDIATE
SUPERVISOR, WHO WOULD SEND OR TAKE HIM TO THE TIMEKEEPER.  BOTH THE
SUPERVISOR AND THE TIMEKEEPER WERE INSTRUCTED TO REPORT INJURIES TO THE
EMPLOYER OR AGENT IN CHARGE; BUT IT WAS NOT SHOWN THAT THEY DID SO IN
THIS CASE.  HELD:  ON THE RECORD IN THIS CASE, THE DEUPTY COMMISSIONER
WAS JUSTIFIED IN FINDING THAT THE EMPLOYER HAD NOTICE OF THE INJURY
WITHIN THE MEANING OF SEC. 12(D) OF THE ACT.  PP. 329-334. 

(A)  IT WOULD BE INDEFENSIBLE TO HOLD THAT THE REQUIREMENTS OF SEC.
12(D) ARE NOT SATISFIED UNLESS THE CLAIMANT CAN DEMONSTRATE THAT THE
EMPLOYER OR THE PERSON HE SELECTS TO BE IN CHARGE HAD ACTUAL PERSONAL
KNOWLEDGE OF THE INJURY - ESPECIALLY IN THIS CASE IN WHICH THE EMPLOYER
CLAIMED THAT A GEARMAN WAS TEMPORARILY IN CHARGE AND IT WAS NOT SHOWN
THAT THE FOREMEN OR WORKMEN HAD NOTICE OF HIS DESIGNATION.   P. 332. 

(B)  WHERE THE EMPLOYEE FOLLOWS THE PRACTICE PRESCRIBED BY THE
EMPLOYER IN REPORTING INJURIES, THE BURDEN OF ANY FAILURE OF THE AGENTS
OF THE EMPLOYER DESIGNATED TO RECEIVE SUCH INFORMATION TO REPORT IT TO
HIM MUST FALL ON THE EMPLOYER, AND NOT ON THE EMPLOYEE.  PP. 332-333. 

VORIS, DEPUTY COMMISSIONER, V. EIKEL ET AL., DOING BUSINESS AS SOUTHERN
STEVEDORING & CONTRACTING CO., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

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. SEC. 901 ET SEQ.) BY A DEPUTY COMMISSIONER TO THE
CLAIM OF AN EMPLOYEE ADMITTEDLY SUBJECT TO THE PROVISIONS OF THE ACT. 

"(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. 

"(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. 

     *         *         *     *         * 

"(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. SEC. 912. 

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. 

THE FACTS AS DISCLOSED BY THE RECORD AND FOUND BY THE DEPUTY
COMMISSIONER ARE AS FOLLOWS: 

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. 

SEVERAL WORKMEN IN THE STEVEDORING GANG SAW THE CLAIMANT INJURED. 
OTHERS, INCLUDING LESLIE LOVELY, FOREMAN OF THE GANG IN 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. 

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 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. 

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. 

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. 

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 SEC. 12(D) OF THE ACT. 

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. 

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 SEC. 12(D) ARE NOT SATISFIED.  SUCH AN INTERPRETATION WOULD BE
INDEFENSIBLE. 

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 SEC. 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. 

THIS ACT MUST BE LIBERALLY CONSTRUED IN CONFORMANCE WITH ITS PURPOSE,
AND IN A WAY WHICH AVOIDS HARSH AND INCONGRUOUS RESULTS.  BALTIMORE &
P.S.B. CO. V. NORTON, 284 U.S. 408, 414.  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. SEC. 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. SEC. 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.  OTHERWISE,
REVERSAL MUST REST ON AN ERROR OF LAW, SUCH AS A MISCONSTRUCTION OF THE
ACT.  NORTON V. WARNER CO., 321 U.S. 565.  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. 

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.  REVERSED. 
..END :













LOBER V. UNITED STATES 346 U.S. 335 


NO. 30.  ARGUED OCTOBER 16, 1953 - DECIDED NOVEMBER 9, 1953 - 124 CT.
CL. 44, 108 F. SUPP. 731, AFFIRMED. 


DECEDENT HAD TRANSFERRED PROPERTY TO HIMSELF AS TRUSTEE FOR HIS MINOR
CHILDREN, RESERVING DISCRETIONARY POWER TO INVEST AND REINVEST THE
PRINCIPAL AND INCOME, WHICH WERE TO BE PAID TO THE CHILDREN WHEN THEY
ATTAINED CERTAIN AGES.  THE TRUSTS WERE DECLARED IRREVOCABLE; BUT
DECEDENT RESERVED THE RIGHT TO PAY OVER TO THE CHILDREN AT ANY TIME ANY
OR ALL OF THE TRUST ASSETS.  HELD: THE VALUE OF THE TRUST ASSETS WAS
INCLUDABLE IN DECEDENT'S ESTATE FOR ESTATE TAX PURPOSES, UNDER SEC.
811(D)(2) OF THE INTERNAL REVENUE CODE.  PP. 335-337. 

LOBER ET AL., EXECUTORS, V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

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 OF 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. 

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 SEC. 811(D)(2) OF THE
INTERNAL REVENUE CODE, 26 U.S.C. SEC. 811 (1946 ED.).  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 V. HOLMES, 326
U.S. 480, 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.  124 CT.
CL. 44, 108 F. SUPP. 731.  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, 181 F.2D 169,
172-174.  BECAUSE OF THIS CONFLICT, WE GRANTED CERTIORARI.  345 U.S.
969. 

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. 

WE POINTED OUT IN THE HOLMES CASE THAT SEC. 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
"VESTED" 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 SEC. 811(D)(2)
REQUIRES IN ORDER TO AVOID THE TAX."  COMMISSIONER V. HOLMES, SUPRA, AT
487.  AFFIRMED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON DISSENT. 
..END :






















OLBERDING, DBA VESS TRANSFER CO. V. ILLINOIS CENTRAL RAILROAD CO., INC.
346 U.S. 338 


NO. 27.  ARGUED OCTOBER 15, 1953 - DECIDED NOVEMBER 9, 1953 - 201 F.2D
582, REVERSED. 


BASING JURISDICTION SOLELY ON DIVERSITY OF CITIZENSHIP, AN ILLINOIS
RAILRAOD CORPORATION BROUGHT SUIT IN A FEDERAL DISTRICT COURT IN
KENTUCKY AGAINST AN INDIANA OWNER OF A TRUCK WHICH, WHILE ON TEMPORARY
BUSINESS IN KENTUCKY, COLLIDED WITH AN OVERPASS OF THE RAILROAD,
CAUSING A DERAILMENT.  THE DEFENDANT WAS APPRISED OF THE ACTION THROUGH
SERVICE OF PROCESS ON THE SECRETARY OF STATE OF KENTUCKY, IN ACCORDANCE
WITH A KENTUCKY STATUTE.  THE KENTUCKY STATUTE DID NOT REQUIRE THE
DESIGNATION OF AN AGENT FOR THE SERVICE OF PROCESS, AND THE DEFENDANT
HAD MADE NO SUCH DESIGNATION.  HELD:  UNDER 28 U.S.C. SEC. 1391(A), THE
DEFENDANT'S MOTION THAT THE CASE BE DISMISSED ON THE GROUND OF IMPROPER
VENUE SHOULD HAVE BEEN GRANTED.  PP. 339-342. 

(A)  THE DEFENDANT DID NOT IMPLIEDLY CONSENT TO BE SUED IN A FEDERAL
COURT IN KENTUCKY SIMPLY BY DRIVING HIS MOTOR VEHICLE ON THE HIGHWAYS
OF THAT STATE.  PP. 340-341. 

(B)  THE FACT THAT A NONRESIDENT MOTORIST WHO COMES INTO KENTUCKY
CAN, CONSISTENT WITH THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, BE SUBJECTED TO SUIT IN THE APPROPRIATE KENTUCKY STATE COURT
IS IRRELEVANT TO HIS RIGHTS UNDER 28 U.S.C. SEC. 1391(A).  P. 341. 

(C)  NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165, DISTINGUISHED.  PP.
341-342. 

OLBERDING, DOING BUSINESS AS VESS TRANSFER CO., ET AL. V. ILLINOIS
CENTRAL RAILROAD CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

IN A SUIT IN A FEDERAL DISTRICT COURT BASED SOLELY ON DIVERSITY OF
CITIZENSHIP, THE DEFENDANT'S MOTION THAT THE CASE BE DISMISSED ON THE
GROUND OF IMPROPER VENUE WAS OVERRULED AND THERE WAS A VERDICT FOR THE
PLAINTIFF.  THE COURT OF APPEALS AFFIRMED.  201 F.2D 582.  THIS COURT
GRANTED CERTIORARI.  345 U.S. 950.  REVERSED, P. 342. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

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.*  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. FISCHBACH 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. 

*KY. REV. STAT., 1953, SECS. 188.020-188.030.  THE KENTUCKY STATUTE,
LIKE THE ONE UPHELD IN HESS V. PAWLOSKI, 274 U.S. 352, 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. NEW
JERSEY, 242 U.S. 160, SPECIFICALLY REQUIRED THE NON-RESIDENT 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. 

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.
SEC. 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 SUED 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. 

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. 

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,
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.  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 APPROPRIATE KENTUCKY STATE COURT HAS NOTHING WHATEVER TO
DO WITH HIS RIGHTS UNDER 28 U.S.C. SEC. 1391(A). 

THIS CONCLUSION IS ENTIRELY LOYAL TO THE DECISION AND REASONING OF
NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165.  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. SEC. 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 175.  WE HELD THAT THIS CONSTITUTED AN "ACTUAL CONSENT" TO BE SUED
IN NEW YORK, NOT THE LESS 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, 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.  BUT HERE NO
SUCH DESIGNATION WAS REQUIRED OR MADE, AND HENCE THE NEIRBO CASE HAS NO
APPLICABILITY. 

THE JUDGMENT IS REVERSED. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE MINTON JOINS, DISSENTING. 

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, 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 NONRESIDENT 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. 

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 OUT-OF-STATE WRONGDOERS BY MOTOR
OPERATION, AND IS NOT SUBJECT TO ATTACK FOR LACK OF DUE PROCESS.  (FN1)
THE SINGLE ISSUE DECIDED BY THE COURT IS THAT SUCH PROCESS DOES NOT
WAIVE VENUE UNDER 28 U.S.C. SEC. 1391(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." 

THE PROVISION WAS SUBSTANTIALLY THE SAME WHEN THE NEIRBO CASE WAS
DECIDED.  THE CLAUSE THEN READ: 

"  ...  BUT WHERE THE JURISDICTION IS FOUNDED ONLY ON THE FACT THAT
THE ACTION IS BETWEEN CITIZENS OF DIFFERENT STATES, SUITS SHALL BE
BROUGHT ONLY IN THE DISTRICT OF THE RESIDENCE OF EITHER THE PLAINTIFF
OR THE DEFENDANT."  28 U.S.C. (1946 ED.)  SEC.  112. 

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 171, 175.  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. 
(FN2) 

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 BETHLEHEM 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 357.  (FN3)
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. 

I WOULD AFFIRM THE JUDGMENT. 

FN1  HESS V. PAWLOSKI, 274 U.S. 352.  THE STATUTE THERE INVOLVED SO
FAR AS PERTINENT READ: 

"THE ACCEPTANCE BY A NON-RESIDENT OF THE RIGHTS AND PRIVILEGES
CONFERRED BY SECTION THREE OR FOUR, AS EVIDENCED BY HIS OPERATING A
MOTOR VEHICLE THEREUNDER, OR THE OPERATION BY A NON-RESIDENT OF A MOTOR
VEHICLE ON A PUBLIC WAY IN THE COMMONWEALTH OTHER THAN UNDER SAID
RESIDENT 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 NON-RESIDENT 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, SEC. 2. 

IN NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165, 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. LAWS, GEN. CORP. LAW,
SEC. 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., 1953, SEC. 188.020. 
FN2  FALTER V. SOUTHWEST WHEEL CO., 109 F. SUPP. 556; ARCHAMBEAU V.
EMERSON, 108 F. SUPP. 28; JACOBSON V. SCHUMAN, 105 F. SUPP. 483;
KOSTAMO V. BRORBY 95 F. SUPP. 806; BURNETT V. SWENSON, 95 F. SUPP. 524;
THURMAN V. CONSOLIDATED SCHOOL DIST., 94 F. SUPP. 616; URSO V. SCALES,
90 F. SUPP. 653; STEELE V. DENNIS, 62 F. SUPP. 73; KRUEGER V. HIDER, 48
F. SUPP. 708.  CONTRA:  WATERS V. PLYBORN, 93 F. SUPP. 651. 

FN3  CF. KNOTT CORP. V. FURMAN, 163 F.2D 109.  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 BY 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, SEC. 3846A. 

THE LANGUAGE OF THIS STATUTE IS CERTAINLY ANALOGOUS TO THAT OF THE
KENTUCKY STATUTE, N. 1, SUPRA.
..END :





ATCHISON, TOPEKA & SANTA FE RAILWAY CO. V. PUBLIC UTILITIES COMMISSION
OF CALIFORNIA 346 U.S. 346 


NO. 22.  ARGUED OCTOBER 14, 1953 - DECIDED NOVEMBER 9, 1953 - AFFIRMED. 


THE PUBLIC UTILITIES COMMISSION OF CALIFORNIA ENTERED ORDERS, PURSUANT
TO A STATE STATUTE, AUTHORIZING CERTAIN GRADE SEPARATION IMPROVEMENTS,
AND REQUIRING IN EACH CASE THAT 50% OF THE COSTS BE BORNE BY THE
RAILROAD.  THE IMPROVEMENTS WERE DESIGNED TO MEET LOCAL TRANSPORTATION
NEEDS AND TO PROMOTE PUBLIC SAFETY AND CONVENIENCE, AND WERE MADE
NECESSARY BY THE GROWTH OF THE COMMUNITIES AFFECTED.  THERE WAS NO
SHOWING ON THE RECORD IN EITHER CASE OF ARBITRARINESS OR
UNREASONABLENESS IN THE COMMISSION'S ORDERS, AND NONE WAS CLAIMED
EXCEPT THAT THE COMMISSION REFUSED TO ALLOCATE COSTS ON THE BASIS OF
BENEFITS TO THE RAILROADS.  HELD:  THE ORDERS OF THE COMMISSION ARE NOT
ARBITRARY OR UNREASONABLE AND DO NOT DEPRIVE THE RAILROADS OF THEIR
PROPERTY WITHOUT DUE PROCESS OF LAW, NOR DO THEY INTERFERE UNREASONABLY
WITH INTERSTATE COMMERCE.  PP. 347-355. 

(A)  IN SUSTAINING THE COMMISSION'S ORDERS BY DENYING WRITS OF
REVIEW, THE STATE SUPREME COURT UPHELD THE STATUTE AS APPLIED BY THE
COMMISSION, AND THE CASES ARE PROPERLY HERE ON APPEAL UNDER 28 U.S.C.
SEC. 1257(2).  PP. 348-349. 

(B)  THE RAILROADS WERE NOT ENTITLED TO HAVE THE COSTS OF THE
IMPROVEMENTS ALLOCATED ONLY ON THE BASIS OF BENEFITS WHICH WILL ACCRUE
TO THEIR PROPERTY.  PP. 352-354. 

(C)  NASHVILLE, C. & ST. L.R. CO. V. WALTERS, 294 U.S. 405,
DISTINGUISHED.  PP. 353-354. 

(D)  THE ALLOCATION OF COSTS AGAINST THE RAILROADS IN EXCESS OF
BENEFITS RECEIVED DID NOT CONSTITUTE AN UNDUE BURDEN ON INTERSTATE
COMMERCE.  P. 355. 

ATCHISON, TOPEKA & SANTA FE RAILWAY CO. V. PUBLIC UTILITIES COMMISSION
OF CALIFORNIA ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA.* 

*TOGETHER WITH NO. 43, SOUTHERN PACIFIC CO. V. PUBLIC UTILITIES
COMMISSION OF CALIFORNIA ET AL., ARGUED OCTOBER 14-15, 1953, ALSO ON
APPEAL FROM THE SAME COURT. 

IN EACH OF THESE CASES THE PUBLIC UTILITIES COMMISSION OF CALIFORNIA
ENTERED ORDERS AUTHORIZING CERTAIN GRADE SEPARATION IMPROVEMENTS AND
ALLOCATING A SHARE OF THE COST TO THE RAILROAD.  51 CAL. P.U.C. 771,
788.  THE STATE SUPREME COURT DENIED REVIEW.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 355. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT THE SAME QUESTIONS OF LAW AND WILL BE DISPOSED OF
TOGETHER.  THE PUBLIC UTILITIES COMMISSION OF CALIFORNIA ENTERED ORDERS
(FN1) AUTHORIZING THE CONSTRUCTION OF CERTAIN GRADE SEPARATION
IMPROVEMENTS AND ALLOCATING THE COSTS THEREFOR, PURSUANT TO SEC. 1202
OF THE PUBLIC UTILITIES CODE OF CALIFORNIA.  (FN2)  ON PETITIONS TO THE
SUPREME COURT OF CALIFORNIA, THAT COURT DENIED REVIEW OF THE
COMMISSION'S ORDERS, (FN3) AND THESE APPEALS FOLLOWED.  WE POSTPONED
JURISDICTION UNTIL A HEARING ON THE MERITS. 

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. SEC. 1257(2).  LIVE OAK WATERS USERS' ASSN. V. RAILROAD
COMMISSION, 269 U.S. 354, 356; LAKE ERIE & WESTERN R. CO. V. PUBLIC
UTILITIES COMMISSION, 249 U.S. 422, 424.  THE COMMISSION HAS CONSTRUED
SEC. 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 S.R. CO. V. ROAD IMPROVEMENT DISTRICT, 256 U.S. 658, 659
660. 

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. 

                                       NO. 22. 

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. 

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," (FN4) 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."  (FN5)  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%.

                       NO. 43. 

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  ...  ."  (FN6) 

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. 

WE 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 DIST., 306 U.S. 459; VALLEY
FARMS CO. V. WESTCHESTER, 261 U.S. 155; KANSAS CITY S.R. CO. V. ROAD
IMPROVEMENT DISTRICT, SUPRA; GAST REALTY & INVESTMENT CO. V. SCHNEIDER
GRANITE CO., 240 U.S. 55. 

RATHER, IN THE CASES AT BAR, THE IMPROVEMENTS WERE INSTITUTED BY THE
STATE OR ITS SUBDIVISIONS TO MEET LOCAL TRANSPORATION 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, 254 U.S.
394, 409-411; MISSOURI PACIFIC R. CO. V. OMAHA, 235 U.S. 121, 127;
CHICAGO, M. & ST. P.R. CO. V. MINNEAPOLIS, 232 U.S. 430, 441;
CINCINNATI, I.&W.R. CO. V. CONNERSVILLE, 218 U.S. 336, 344.  THERE IS
THE PROPER LIMITATION THAT SUCH ALLOCATION OF COSTS MUST BE FAIR AND
REASONABLE.  NASHVILLE, C. & ST. L.R. CO. V. WALTERS, 294 U.S. 405,
415, 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 ALLEVIATING IT IS NOT BASED SOLELY
ON THE SPECIAL BENEFITS ACCRUING TO THEM FROM THE IMPROVEMENTS. 

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."  P. 413.  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. 

AS STATED BY THIS COURT, "THE 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."  P. 413. 
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."  PP. 432-433. 

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 ALLOCATED COSTS ON THE
BASIS OF BENEFITS RECEIVED, WHICH WE HOLD IT WAS NOT REQUIRED TO DO. 
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. NEW YORK, 336 U.S. 106, 111;
SOUTH CAROLINA V. BARNWELL BROS., 303 U.S. 177, 187.  NO CONFLICT WITH
FEDERAL REGULATION IS INVOLVED HERE.  SEE LEHIGH VALLEY R. CO. V.
BOARD, 278 U.S. 24, 35. 

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. 

"TO ENGAGE IN INTERSTATE COMMERCE THE RAILROAD MUST GET ON TO THE
LAND AND TO GET ON TO IT MUST COMPLY WITH THE CONDITIONS IMPOSED BY THE
STATE FOR THE SAFETY OF ITS CITIZENS."  ERIE R. CO. V. BOARD, SUPRA, P.
411. 

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. 

THE JUDGMENTS OF THE SUPREME COURT OF CALIFORNIA ARE AFFIRMED. 

FN1  THE FINAL ORDERS MAY BE FOUND AT 51 CAL. P.U.C. 771 AND 51 CAL.
P.U.C. 788. 

FN2  "SEC.  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. 

FN3  40 ADV.  CAL., NO. 2, MINUTES, 1; 40 ADV.  CAL., NO. 15,
MINUTES, 1. 

FN4  51 CAL. P.U.C. 771, 779. 

FN5  IBID. 

FN6  51 CAL. P.U.C. 788, 795. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :






TOOLSON V. NEW YORK YANKEES, INC. 346 U.S. 356 


NO. 18.  ARGUED OCTOBER 13, 1953 - DECIDED NOVEMBER 9, 1953 - 200 F.2D
198, 202 F.2D 413, 428, AFFIRMED. 


THE JUDGMENTS IN THESE CASES ARE AFFIRMED ON THE AUTHORITY OF FEDERAL
BASEBALL CLUB OF BALTIMORE V. NATIONAL LEAGUE OF PROFESSIONAL BASEBALL
CLUBS, 259 U.S. 200, 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.  PP. 356-357. 

TOOLSON V. NEW YORK YANKEES, INC. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT.* 

*TOGETHER WITH NO. 23, KOWALSKI V. CHANDLER, COMMISSIONER OF
BASEBALL, ET AL., ARGUED OCTOBER 13-14, 1953, AND NO. 25, CORBETT ET
AL. V. CHANDLER, COMMISSIONER OF BASEBALL, ET AL., ARGUED OCTOBER 14,
1953, BOTH ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT. 

PER CURIAM. 

IN FEDERAL BASEBALL CLUB OF BALTIMORE V. NATIONAL LEAGUE OF
PROFESSIONAL BASEBALL CLUBS, 259 U.S. 200 (1922), 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.  AFFIRMED. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE REED CONCURS, DISSENTING. 

WHATEVER MAY HAVE BEEN THE SITUATION WHEN THE FEDERAL BASEBALL CLUB
CASE (FN1) 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.  (FN2) 

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: 

"'ORGANIZED BASEBALL' IS A COMBINATION OF APPROXIMATELY 380 SEPARATE
BASEBALL CLUBS, OPERATING IN 42 DIFFERENT STATES, THE DISTRICT OF
COLUMBIA, CANADA, CUBA, AND MEXICO  ...  . 

"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. 

     *         *         *         *         * 

"OF THE 52 LEAGUES ASSOCIATED WITHIN ORGANIZED BASEBALL IN 1951, 39
WERE INTERSTATE IN NATURE."  (FN3) 

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 1920, DESCRIBED A MAJOR LEAGUE BASEBALL GAME
AS "LOCAL IN ITS BEGINNING AND IN ITS END."  (FN4)  THIS COURT STATED
THAT "THE BUSINESS IS GIVING EXHIBITIONS OF BASE BALL, WHICH ARE PURELY
STATE AFFAIRS," AND THE TRANSPORTATION OF PLAYERS AND EQUIPMENT BETWEEN
STATES "IS A MERE INCIDENT  ...  ."  (FN5)  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.  (FN6)
ALTHOUGH COUNSEL DID ARGUE THAT THE ACTIVITIES OF ORGANIZED BASEBALL,
EVEN IF AMOUNTING TO INTERSTATE COMMERCE, DID NOT VIOLATE THE SHERMAN
ACT, (FN7) THE COURT SIGNIFICANTLY REFRAINED FROM EXPRESSING ITS
OPINION ON THAT ISSUE. 

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 BASE BALL 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."  (FN8) 

THE 1952 REPORT OF THE CONGRESSIONAL SUBCOMMITTEE PREVIOUSLY
MENTIONED ALSO SAID: 

"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. 

     *         *   *         *         * 

"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.  (FN9) 

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.  (FN10)  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
BASEBALL PLAYERS.  THE PLAINTIFFS ALSO ALLEGE THAT THE DEFENDANTS HAVE
ENTERED INTO A CONBINATION, CONSPIRACY AND MONOPOLY OR AN ATTEMPT TO
MONOPOLIZE PROFESSIONAL BASEBALL IN THE UNITED STATES TO THE
SUBSTANTIAL DAMAGE OF THE PLAINTIFFS. 

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.  (FN11)
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 CASES
TO THE RESPECTIVE DISTRICT COURTS FOR A CONSIDERATION OF THE MERITS OF
THE ALLEGED VIOLATIONS OF THE SHERMAN ACT. 

FN1  FEDERAL BASEBALL CLUB V. NATIONAL LEAGUE, 259 U.S. 200. 

FN2 COMPARE PAUL V. VIRGINIA, 8 WALL.  168, AND HOOPER V. CALIFORNIA,
155 U.S. 648, WITH UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN.,
322 U.S. 533, AND LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S. 143. 
SEE ALSO, TIMES-PICAYUNE PUBLISHING CO. V. UNITED STATES, 345 U.S. 594;
UNITED STATES V. NATIONAL ASSN. OF REAL ESTATE BOARDS, 339 U.S. 485;
UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173; AMERICAN MEDICAL
ASSN. V. UNITED STATES, 317 U.S. 519. 

FN3  H.R. REP. NO. 2002, 82D CONG., 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             1929 (FN1)              1939
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 

"FN1  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. 

FN4  NATIONAL LEAGUE V. FEDERAL BASEBALL CLUB, 50 APP. D.C. 165, 169,
269 F. 681, 685. 

FN5  259 U.S., AT 208, 209. 

FN6  SEE BRIEF FOR APPELLANTS IN THE COURT OF APPEALS, PP. 45-67;
BRIEF FOR DEFENDANTS IN ERROR IN THIS COURT, PP. 45-66. 

FN7  SEE BRIEF FOR APPELLANTS IN COURT OF APPEALS, PP. 68-72; BRIEF
FOR DEFENDANTS IN ERROR IN THIS COURT, PP. 66-72. 

FN8  HART V. KEITH VAUDEVILLE EXCHANGE, 262 U.S. 271, 274, AND SEE
NORTH AMERICAN CO. V. S.E.C., 327 U.S. 686, 694. 

FN9  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.    FN10
"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, 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 HE 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. 

FN11  E.G., CONGRESS HAS EXPRESSLY EXEMPTED CERTAIN SPECIFIC
ACTIVITIES FROM THE SHERMAN ACT, AS IN SEC. 6 OF THE CLAYTON ACT, 38
STAT. 731, 15 U.S.C. SEC. 17 (LABOR ORGANIZATIONS), IN THE CAPPER
VOLSTEAD ACT, 42 STAT. 388-389, 7 U.S.C. SECS. 291, 292 (FARM
COOPERATIVES), AND IN THE MCCARRAN-FERGUSON ACT, 59 STAT. 34, 61 STAT.
448, 15 U.S.C. (SUPP. V) SEC. 1013 (INSURANCE).  AND SEE APEX HOSIERY
CO. V. LEADER, 310 U.S. 469, 501, 512. 
..END :












AVONDALE MARINE WAYS, INC. V. HENDERSON 346 U.S. 366 


NO. 44.  ARGUED OCTOBER 20, 1953 - DECIDED NOVEMBER 9, 1953 - 201 F.2D
437, AFFIRMED. 


THE JUDGMENT IN THIS CASE IS AFFIRMED ON THE AUTHORITY OF THE CASES
CITED. 

AVONDALE MARINE WAYS, INC. V. HENDERSON, DEPUTY COMMISSIONER, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PER CURIAM. 

THE JUDGMENT IS AFFIRMED.  DAVIS V. DEPARTMENT OF LABOR, 317 U.S.
249; KAISER CO. V. BASKIN, 340 U.S. 886; BASKIN V. INDUSTRIAL ACCIDENT
COMMISSION, 338 U.S. 854; BETHLEHEM STEEL CO. V. MOORES, 335 U.S. 874. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

I DO NOT THINK THIS CASE BELONGS IN THE "TWILIGHT ZONE" OF DAVIS V.
DEPARTMENT OF LABOR, 317 U.S. 249, 256.  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., 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." 

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. 

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. SEC. 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, 201 F.2D 437, FOLLOWING MARYLAND
CASUALTY CO. V. LAWSON, 101 F.2D 732, AND CONTINENTAL CASUALTY CO. V.
LAWSON, 64 F.2D 802. 
..END :














LEMKE V. UNITED STATES 346 U.S. 325 


NO. 109.  DECIDED OCTOBER 12, 1953 - 203 F.2D 406, REVERSED. 


PETITIONER WAS CONVICTED OF A CRIME AND SENTENCED TO IMPRISONMENT.  HE
FILED HIS NOTICE OF APPEAL THE NEXT DAY; BUT JUDGMENT WAS NOT ENTERED
UNTIL SEVERAL DAYS LATER.  HELD: THOUGH RULE 37(A)(2) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE PROVIDES THAT SUCH APPEALS MAY BE TAKEN
"WITHIN 10 DAYS AFTER ENTRY OF THE JUDGMENT," THE IRREGULARITY IN
NOTING THE APPEAL PREMATURELY SHOULD HAVE BEEN DISREGARDED UNDER RULE
52(A), AS IT DID NOT "AFFECT SUBSTANTIAL RIGHTS," AND THE APPEAL SHOULD
NOT HAVE BEEN DISMISSED.  PP. 325-326. 

LEMKE V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

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 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 SEC. 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. 

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." 

ACCORDINGLY WE GRANT THE PETITION FOR CERTIORARI, REVERSE THE
JUDGMENT BELOW, AND REMAND THE CASE FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





FEDERAL TRADE COMMISSION V. CARTER PRODUCTS, INC. 346 U.S. 327 


NO. 114.  DECIDED OCTOBER 12, 1953 - 201 F.2D 446, JUDGMENT VACATED AND
CAUSE REMANDED. 


THE JUDGMENT OF THE COURT OF APPEALS SETTING ASIDE A CEASE AND DESIST
ORDER OF THE FEDERAL TRADE COMMISSION IS VACATED, AND THE CAUSE IS
REMANDED TO THE COURT OF APPEALS WITH DIRECTIONS TO REINSTATE ITS PRIOR
JUDGMENT AFTER AMENDING IT SO AS SPECIFICALLY TO AUTHORIZE THE
COMMISSION TO OPEN THIS PROCEEDING FOR FURTHER EVIDENCE AND A NEW ORDER
CONSISTENT WITH THE OPINION OF THE COURT OF APPEALS. 

FEDERAL TRADE COMMISSION V. CARTER PRODUCTS, INC. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PER CURIAM. 

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; LABOR BOARD V. DONNELLY GARMENT CO., 330 U.S. 219, 224-228. 

MR. JUSTICE DOUGLAS DISSENTS. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















ROSENBERG V. UNITED STATES 346 U.S. 322 


NO. - , JUNE 18 SPECIAL TERM, 1953.  - DECIDED JUNE 19, 1953. 


AFTER THE STAY GRANTED BY MR. JUSTICE DOUGLAS HAD BEEN VACATED BY THE
COURT, ANTE, P. 273, COUNSEL FOR THE ROSENBERGS MOVED FOR A FURTHER
STAY PENDING ACTION BY THE PRESIDENT ON A PETITION FOR EXECUTIVE
CLEMENCY.  HELD:  FURTHER STAY DENIED. 

ROSENBERG ET AL. V. UNITED STATES. 

MOTION TO VACATE A STAY. 

PER CURIAM. 

MOTION OF THE PETITIONERS FOR A FURTHER STAY OF THE EXECUTION, AS SET
FORTH IN THE WRITTEN MOTION, IS DENIED. 

MR. JUSTICE BLACK DISSENTS. 

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, 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. 
..END :









ROSENBERG V. UNITED STATES 346 U.S. 324 


NO. - , JUNE 18 SPECIAL TERM, 1953.  - DECIDED JUNE 19, 1953. 


AFTER THE STAY GRANTED BY MR. JUSTICE DOUGLAS HAD BEEN VACATED BY THE
COURT, ANTE, P. 273, A MOTION WAS MADE FOR RECONSIDERATION OF THE
QUESTION OF THE COURT'S POWER TO VACATE THAT STAY AND THAT THE COURT
HEAR ORAL ARGUMENT.  HELD:  MOTION DENIED. 

ROSENBERG ET AL. V. UNITED STATES. 

MOTION TO VACATE A STAY. 

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. 

MR. JUSTICE BLACK DISSENTS. 

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
PERU, 318 U.S. 578, 590, IN CONNECTION WITH LAMBERT V. BARRETT, 157
U.S. 697, AND CARPER V. FITZGERALD, 121 U.S. 87. 
..END :
























ROSENBERG V. UNITED STATES 346 U.S. 273 


NO. - , JUNE 18 SPECIAL TERM, 1953.  ARGUED JUNE 18, 1953.  - DECIDED
JUNE 19, 1953.  - STAY VACATED. 


THE ROSENBERGS WERE CONVICTED AND SENTENCED TO DEATH FOR CONSPIRING TO
VIOLATE THE ESPIONAGE ACT OF 1917 BY COMMUNICATING TO A FOREIGN
GOVERNMENT, IN WARTIME, SECRET ATOMIC AND OTHER MILITARY INFORMATION. 
THE OVERT ACTS RELATING TO ATOMIC SECRETS OCCURRED BEFORE ENACTMENT OF
THE ATOMIC ENERGY ACT OF 1946; BUT OTHER ASPECTS OF THE CONSPIRACY
CONTINUED INTO 1950.  THE COURT OF APPEALS AFFIRMED THE CONVICTIONS,
AND THIS COURT DENIED CERTIORARI AND REHEARING.  THEREAFTER, SEVERAL
UNSUCCESSFUL COLLATERAL ATTACKS ON THE SENTENCES WERE MADE IN THE LOWER
COURTS, AND REVIEWS OF THE DECISIONS THEREON WERE SOUGHT IN THIS
COURT.  AFTER DISPOSING, IN EFFECT, OF ALL SUCH COLLATERAL ATTACKS THEN
PENDING IN THE COURTS AND DENYING A FURTHER STAY, THIS COURT ADJOURNED
THE OCTOBER TERM, 1952.  AT A SPECIAL TERM ON JUNE 15, 1953, THE COURT
DENIED A MOTION FOR LEAVE TO FILE AN ORIGINAL PETITION FOR A WRIT OF
HABEAS CORPUS AND FOR A STAY, AND AGAIN ADJOURNED.  THEREAFTER, COUNSEL
FOR THE ROSENBERGS APPLIED TO MR. JUSTICE DOUGLAS FOR A STAY; BUT HE
DENIED IT, SINCE THEY RAISED QUESTIONS ALREADY CONSIDERED BY THE
COURT.  COUNSEL WHO HAD NOT BEEN RETAINED BY THE ROSENBERGS BUT WHO
REPRESENTED A "NEXT FRIEND" APPLIED TO MR. JUSTICE DOUGLAS FOR A STAY
AND A WRIT OF HABEAS CORPUS, CONTENDING THAT THE ATOMIC ENERGY ACT OF
1946 RENDERED THE DISTRICT COURT POWERLESS IN THIS CASE TO IMPOSE THE
DEATH PENALTY UNDER THE ESPIONAGE ACT OF 1917.  ON JUNE 17, 1953, MR.
JUSTICE DOUGLAS DENIED A WRIT OF HABEAS CORPUS BUT GRANTED A STAY,
EFFECTIVE UNTIL THE APPLICABILITY OF THE ATOMIC ENERGY ACT COULD BE
DETERMINED IN THE LOWER COURTS.  THE ATTORNEY GENERAL PETITIONED THIS
COURT TO CONVENE IN SPECIAL TERM AND TO VACATE THE STAY.  HELD:  THE
STAY GRANTED BY MR. JUSTICE DOUGLAS IS VACATED.  PP. 277-296. 

1.  MR. JUSTICE DOUGLAS HAD POWER TO ISSUE THE STAY.  PP. 285, 288,
294. 

2.  THIS COURT HAS POWER TO DECIDE, IN THIS PROCEEDING, THE QUESTION
PRESERVED BY THE STAY GRANTED BY MR. JUSTICE DOUGLAS, AND TO VACATE
THAT STAY.  PP. 286-287. 

(A)  THAT THE FULL COURT HAS MADE NO PRACTICE OF VACATING STAYS
ISSUED BY SINGLE JUSTICES 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.  P. 286. 

(B)  THE POWER EXERCISED IN THIS CASE DERIVES FROM THE COURT'S ROLE
AS THE FINAL FORUM TO RENDER THE ULTIMATE ANSWER TO THE QUESTION WHICH
WAS PRESERVED BY THE STAY.  P. 286. 

(C)  IN THE UNUSUAL CIRCUMSTANCES OF THIS CASE, THIS COURT DEEMED IT
PROPER AND NECESSARY TO CONVENE IN SPECIAL TERM TO CONSIDER AND ACT
UPON THE ATTORNEY GENERAL'S URGENT APPLICATION.  PP. 286-287. 

(D)  THIS COURT'S RESPONSIBILITY TO SUPERVISE THE ADMINISTRATION OF
CRIMINAL JUSTICE BY THE FEDERAL JUDICIARY INCLUDES THE DUTY TO SEE NOT
ONLY THAT THE LAWS ARE ENFORCED BY FAIR PROCEEDINGS BUT ALSO THAT THE
PUNISHMENTS PRESCRIBED BY THE LAWS ARE ENFORCED WITH A REASONABLE
DEGREE OF PROMPTNESS AND CERTAINTY.  P. 287. 

3.  THE STAY GRANTED BY MR. JUSTICE DOUGLAS IS VACATED.  PP. 288
289. 

(A)  A STAY SHOULD ISSUE ONLY IF THERE IS A SUBSTANTIAL QUESTION TO
BE PRESERVED FOR FURTHER PROCEEDINGS IN THE COURTS.  P. 288. 

(B)  THE QUESTION WHETHER THE ATOMIC ENERGY ACT OF 1946 RENDERED THE
DISTRICT COURT POWERLESS IN THIS CASE TO IMPOSE THE DEATH PENALTY UNDER
THE ESPIONAGE ACT OF 1917 IS NOT SUBSTANTIAL, AND FURTHER PROCEEDINGS
TO LITIGATE IT ARE UNWARRANTED.  PP. 285-286, 289, 289-290, 294-296. 

4.  THE ATOMIC ENERGY ACT DID NOT REPEAL OR LIMIT THE PENALTY
PROVISIONS OF THE ESPIONAGE ACT.  PP. 287, 289, 290, 294-296. 

(A)  AT LEAST WHERE DIFFERENT PROOF IS REQUIRED FOR EACH OFFENSE, A
SINGLE ACT OR TRANSACTION MAY VIOLATE MORE THAN ONE CRIMINAL STATUTE. 
P. 294. 

(B)  THE PARTIAL OVERLAP OF TWO STATUTES DOES NOT WORK A PRO TANTO
REPEAL OF THE EARLIER ACT, UNLESS THE INTENTION OF THE LEGISLATURE TO
REPEAL THE EARLIER STATUTE IS CLEAR AND MANIFEST.  PP. 294-295. 

(C)  INSTEAD OF REPEALING THE PENALTY PROVISIONS OF THE ESPIONAGE ACT
OF 1917, THE ATOMIC ENERGY ACT, BY SEC. 10(B)(6), PRESERVES THEM IN
UNDIMINISHED FORCE.  P. 295. 

(D)  SINCE THE CRUX OF THE CHARGE ALLEGED OVERT ACTS COMMITTED BEFORE
THE ATOMIC ENERGY ACT WAS ENACTED, THAT ACT CANNOT COVER THE OFFENSES
CHARGED, AND THE ALLEGED INCONSISTENCY OF ITS PENALTY PROVISIONS WITH
THOSE OF THE ESPIONAGE ACT CANNOT BE SUSTAINED.  PP. 295-296. 

5.  ALTHOUGH THE QUESTION NOW URGED AS BEING SUBSTANTIAL 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.  THE COURT DOES NOT HOLD IN THIS CASE THAT A WAIVER OF THIS
CLAIM PRECLUDED ITS CONSIDERATION.  PP. 282-283, 288-289. 

6.  IN THE CIRCUMSTANCES OF THIS CASE, IN WHICH THE ROSENBERGS WERE
REPRESENTED AT THEIR TRIAL AND IN ALL SUBSEQUENT PROCEEDINGS BY ABLE
AND ZEALOUS COUNSEL OF THEIR OWN CHOICE, INTERVENTION BY A STRANGER AS
"NEXT FRIEND," WITHOUT AUTHORIZATION BY THE ROSENBERGS AND THROUGH
COUNSEL WHO HAD NEVER BEEN RETAINED BY THEM, IS TO BE DISCOUNTENANCED. 
PP. 291-292. 

FOR OPINION OF THE COURT, DELIVERED BY THE CHIEF JUSTICE, SEE POST,
P. 277. 

FOR PER CURIAM OPINION, SEE POST, P. 288. 

FOR CONCURRING OPINION OF MR. JUSTICE JACKSON, JOINED BY THE CHIEF
JUSTICE, MR. JUSTICE REED, MR. JUSTICE BURTON, MR. JUSTICE CLARK AND
MR. JUSTICE MINTON, SEE POST, P. 289. 

FOR CONCURRING OPINION OF MR. JUSTICE CLARK, JOINED BY THE CHIEF
JUSTICE, MR. JUSTICE REED, MR. JUSTICE JACKSON, MR. JUSTICE BURTON AND
MR. JUSTICE MINTON, SEE POST, P. 293. 

FOR DISSENTING OPINION OF MR. JUSTICE BLACK, SEE POST, P. 296. 

FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P. 301. 

FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 310. 

FOR APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS CONTAINING HIS OPINION
GRANTING THE STAY, SEE POST, P. 313. 

ROSENBERG ET AL. V. UNITED STATES. 

MOTION TO VACATE A STAY. 

THE HISTORY OF THE PROCEEDINGS IN THIS UNUSUAL CASE IS RECITED IN THE
OPINION OF THE COURT, POST, PP. 277-285. 

THE COURT'S JOURNAL FOR JUNE 18, 1953 (P. 257), CONTAINS THE
FOLLOWING ENTRIES: 

"THE COURT MET IN SPECIAL TERM PURSUANT TO A CALL BY THE CHIEF
JUSTICE. 

"PRESENT:  MR. CHIEF JUSTICE VINSON, MR. JUSTICE BLACK, MR. JUSTICE
REED, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE
JACKSON, MR. JUSTICE BURTON, MR. JUSTICE CLARK, AND MR. JUSTICE
MINTON. 

"THE CHIEF JUSTICE SAID: 

"'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. 

"'THE SPECIAL TERM CONVENES WITH THE APPROVAL OF ALL THE ASSOCIATE
JUSTICES EXCEPT MR. JUSTICE BLACK, WHO OBJECTS.'" 

THE CHIEF JUSTICE AND ALL ASSOCIATE JUSTICES WERE PRESENT WHEN THE
DECISION WAS ANNOUNCED ON JUNE 19, 1953. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT.* 

*NOTE:  THIS OPINION WAS FILED JULY 16, 1953. 

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. 

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. 

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. SECS. 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.  (FN1)  A PETITION FOR REHEARING
WAS DENIED. 

A PETITION FOR CERTIORARI WAS FILED HERE.  IT WAS DENIED ON OCTOBER
13, 1952.  (FN2)  A PETITION FOR REHEARING WAS FILED OCTOBER 28, 1952. 
IT WAS DENIED ON NOVEMBER 17, 1952.  (FN3) 

ONE WEEK THEREAFTER, A MOTION WAS FILED IN THE DISTRICT COURT UNDER
SEC. 2255 OF THE JUDICIAL CODE (28 U.S.C. SEC. 2255) TO VACATE THE
JUDGMENT AND SENTENCE.  THAT MOTION (HEREAFTER CALLED THE FIRST SEC.
2255 MOTION) DID NOT CHALLENGE THE POWER OF THE DISTRICT COURT TO
IMPOSE THE DEATH SENTENCE.  IT WAS DENIED.  (FN4)  THE COURT OF APPEALS
AFFIRMED.  (FN5)  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.  (FN6)  ON THE NEXT DAY, A PETITION FOR A STAY,
PENDING THE CONSIDERATION 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. 

IN THE MEANTIME, EXECUTION OF THE SENTENCE WAS SET FOR THE WEEK OF
JUNE 15TH BY THE DISTRICT JUDGE, AND TWO FURTHER MOTIONS UNDER SEC.
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. 

IN ADDITION TO THOSE TWO MOTIONS UNDER SEC. 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 IN 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 SEC. 2255. 

ON JUNE 12, 1953, AN APPLICATION FOR A STAY OF 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.  (FN7)  THE PENDING
PETITION FOR REHEARING AS TO THE MAY 25, 1953, DENIAL OF CERTIORARI,
WAS ALSO DENIED.  (FN8)  THUS THE COURT HAD IN EFFECT, DISPOSED OF ALL
COLLATERAL ATTACKS UPON THE SENTENCE THEN PENDING IN THE COURTS - AS TO
THE FIRST SEC.  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. 

JUST A MOMENT BEFORE ADJOURNMENT OF THE 1952 TERM, ON JUNE 15, 1953,
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.  (FN9)  THE SPECIAL TERM WAS THEN ADJOURNED. 

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.  (FN10)  IN THIS RECITATION OF
FACTS, WE DO NOT HOLD IN THIS CASE THAT A WAIVER OF THIS CLAIM
PRECLUDED ITS CONSIDERATION. 

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. 

EDELMAN'S COUNSEL RAISED THE CLAIM THAT THE ATOMIC ENERGY ACT OF
1946, 42 U.S.C. SEC.  1810(B)(2) AND (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. 

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. 

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. 

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. 
(FN11) 

THE SPECIAL TERM WAS ADJOURNED.  THEREAFTER EXECUTIVE CLEMENCY WAS
DENIED.  THE SENTENCE OF DEATH WAS CARRIED OUT. 

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. 

MR. JUSTICE DOUGLAS HAD POWER TO ISSUE THE STAY.  NO ONE HAS DISPUTED
THIS, AND WE THINK THE PROPOSITION IS INDISPUTABLE. 

STAYS ARE PART OF THE "TRADITIONAL EQUIPMENT FOR THE ADMINISTRATION
OF JUSTICE."  SCRIPPS-HOWARD RADIO, INC. V. FEDERAL COMMUNICATIONS
COMMISSION, 316 U.S. 4, 9-10 (1942).  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. 

CONFRONTED WITH THE QUESTION OF THE APPLICABILITY OF THE ATOMIC
ENERGY ACT, MR. JUSTICE DOUGLAS WROTE: 

"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. 

"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 SEC. 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."  (SEE POST, P. 321.) 

AFTER HEARING ARGUMENT ON THIS QUESTION, WE DID NOT ENTERTAIN THE
SERIOUS DOUBTS WHICH MR. JUSTICE DOUGLAS HAD. 

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.  (FN12)
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. 

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. 

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. 

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. 

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. 

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. 

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. 
THIS BROUGHT US TO THE MERITS.  OUR DECISION WAS SUMMARIZED IN OUR PER
CURIAM OPINION.  (FN13)  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 AS 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. 

MORE COMPLETE STATEMENTS OF THE REASONS FOR OUR DECISION ARE SET
FORTH IN THE OPINIONS OF MR. JUSTICE JACKSON (FN14) AND MR. JUSTICE
CLARK.  (FN15)  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. 

PER CURIAM.* 

*NOTE:  THIS OPINION WAS DELIVERED JUNE 19, 1953. 

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., JUNE 15 SPECIAL TERM, 1953, JULIUS ROSENBERG AND
ETHEL ROSENBERG, PETITIONERS, V. WILFORD L. DENNO, WARDEN OF SING SING
PRISON, DENYING A STAY, ANTE, P. 271. 

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. 

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. SEC.
1810(B)(2), (3), RENDERED THE DISTRICT COURT POWERLESS TO IMPOSE THE
DEATH SENTENCE UNDER THE ESPIONAGE ACT OF 1917, 50 U.S.C. SECS. 32(A),
34, UNDER WHICH STATUTE THE INDICTMENT WAS LAID. 

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. 

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. 

WE ARE ENTERING THIS ORDER IN ADVANCE OF THE PREPARATION OF FULL
OPINIONS WHICH WILL BE FILED WITH THE CLERK.  STAY GRANTED BY MR.
JUSTICE DOUGLAS VACATED. 

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.* 

*SEE POST, P. 301. 

BY MR. JUSTICE JACKSON, WHOM THE CHIEF JUSTICE, MR. JUSTICE REED, MR.
JUSTICE BURTON, MR. JUSTICE CLARK, AND MR. JUSTICE MINTON JOIN.* 

*NOTE:  THIS OPINION WAS DELIVERED JUNE 19, 1953. 

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. 

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. 

THE CONSTITUTION, ART. I, SEC. 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. 

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. 

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, AND REHEARING LATER DENIED, 344 U.S. 889. 

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. 

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. 

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 SUCH AN APPEARANCE, UNDER CIRCUMSTANCES SUCH AS INCAPACITY OF
THE PRISONER 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 STANDING FURTHER TO LITIGATE THIS CASE
IN THE LOWER COURTS CANNOT BE JUSTIFIED. 

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. CALIFORNIA, 344 U.S.
357. 

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. 

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. 

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. 

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,
890. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE REED, MR.
JUSTICE JACKSON, MR. JUSTICE BURTON, AND MR. JUSTICE MINTON JOIN.* 

*NOTE:  THIS OPINION WAS DELIVERED JUNE 19, 1953. 

SEVEN TIMES NOW HAVE THE DEFENDANTS BEEN BEFORE THIS COURT.  IN
ADDITION, THE CHIEF JUSTICE, AS WELL AS INDIVIDUAL JUSTICES, HAS
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. 

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 HAS 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, 317 U.S. 1 (1942). 

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 SEC. 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.  60 STAT. 755, 766, 42 U.S.C. SEC. 1810(B)(2), (3).  (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., 344 U.S. 43, 45 (1952); SEE ALSO UNITED STATES V. NOVECK, 273 U.S.
202, 206 (1927); GAVIERES V. UNITED STATES, 220 U.S. 338 (1911).  NOR
DOES THE PARTIAL OVERLAP OF TWO STATUTES NECESSARILY WORK A PRO TANTO
REPEALER OF THE EARLIER ACT.  IBID.  "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., 308 U.S. 188, 198 (1939).  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 SEC. 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.    *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 SEC. 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 SEC. 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  ...  ." 

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. 

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 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. 

MR. JUSTICE BLACK, DISSENTING.* 

*NOTE:  THIS OPINION WAS DELIVERED JUNE 19, 1953. 

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. 

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. 

*THE GOVERNMENT CITES 28 U.S.C. SEC. 2106 AND 28 U.S.C. SEC. 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 SEC. 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. 

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,
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. 

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. SEC. 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. SEC. 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. 

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. 

THIRD.  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.  AFTER HAVING SEEN THE COURT'S ORDER I
FIND THAT IT APPEARS TO AGREE WITH THIS VIEW. 

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. 

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. 

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. 

MR. JUSTICE FRANKFURTER, DISSENTING.* 

*NOTE:  THIS OPINION WAS FILED JUNE 22, 1953. 

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. 

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; (FN1) 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. 

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
WERE 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.    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: 

"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 TO 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." 

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. 

THE BASIS ON WHICH A 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: 

"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. 

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.  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 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. 

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 OVERT ACTS.  (FN2)  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. 

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. 

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 SEC. 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. 

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.  (FN3)  SEE WILLIAMS V. UNITED
STATES, 168 U.S. 382, 389. 

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. 

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; UNITED STATES V. SINGER, 323 U.S. 338; UNITED STATES V.
PETRILLO, 332 U.S. 1; UNITED STATES V. C.I.O., 335 U.S. 106; UNITED
STATES V. WILLIAMS, 341 U.S. 70; UNITED STATES V. HOOD, 343 U.S. 148. 

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.  (FN4) NEWMAN,
CONTROL OF INFORMATION RELATING TO ATOMIC ENERGY, 56 YALE L.J. 769. 

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? 

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. 

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. 

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. 

FN1  NATURALLY ENOUGH THE GOVERNMENT AND THE COURT "DO NOT DOUBT THAT
MR. JUSTICE DOUGLAS HAD POWER TO ISSUE THE STAY IN THESE PROCEEDINGS." 
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. 

FN2  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.  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. 

FN3  "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.  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.    FN4  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. 

MR. JUSTICE DOUGLAS, DISSENTING.* 

*NOTE:  THIS OPINION WAS DELIVERED JUNE 19, 1953. 

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. 

*ATTACHED HERETO AS AN APPENDIX, POST, P. 313. 

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. 

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. 

THE CRIME OF THE ROSENBERGS WAS A CONSPIRACY THAT STARTED PRIOR TO
THE ATOMIC ENERGY ACT AND CONTINUED ALMOST FOUR 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, 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
FOUR YEARS AFTER THE ATOMIC ENERGY ACT BECAME EFFECTIVE. 

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: 

"I BELIEVE YOUR CONDUCT IN PUTTING INTO THE HANDS OF THE RUSSIANS THE
A-BOMB 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." 

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. 

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. 

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 MR. CHIEF JUSTICE HUGHES FOR A UNANIMOUS COURT IN BOWEN
V. JOHNSTON, 306 U.S. 19, 26-27: 

"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).  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." 

HERE THE TRIAL COURT WAS WITHOUT JURISDICTION TO IMPOSE THE DEATH
PENALTY, SINCE THE JURY HAD NOT RECOMMENDED IT. 

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. 

                   APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. 

JULIUS ROSENBERG AND ETHEL 

ROSENBERG, PETITIONERS,

         V.                   APPLICATION FOR A STAY. 

THE UNITED STATES OF AMERICA. 

                 JUNE 17, 1953. 

MR. JUSTICE DOUGLAS. 

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. 

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, SEC. 2(A), 40 STAT.
217, 218 (50 U.S.C. SEC. 32(A)) PROVIDES: 

"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
FOR NOT MORE THAN THIRTY YEARS  ...  ." 


"IF TWO OR MORE PERSONS CONSPIRE TO VIOLATE THE PROVISIONS OF
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."  40 STAT. 219, 50 U.S.C. SEC. 34. 

THE INDICTMENT, WHICH WAS RETURNED IN 1951, CHARGED A CONSPIRACY TO
VIOLATE SEC. 32(A) WITH AN INTENT TO COMMUNICATE INFORMATION THAT WOULD
BE USED TO THE ADVANTAGE OF A FOREIGN NATION, 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. 

ON AUGUST 1, 1946, THE ATOMIC ENERGY ACT BECAME EFFECTIVE.  SECTIONS
10(B)(2) AND (3) PROVIDE: 

"(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:  (FN1) 

(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:" 

"(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. 

"(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); OR BY A FINE OF NOT MORE THAN $20,000 OR
IMPRISONMENT FOR NOT MORE THAN TWENTY YEARS, OR BOTH."  60 STAT. 755,
766, 42 U.S.C. SEC. 1810(B)(2), (3). 

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

                                        AND

   - WHERE THE OFFENSE WAS COMMITTED WITH AN INTENT TO INJURE THE
UNITED STATES. 

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. 

THE DEPARTMENT OF JUSTICE MAINTAINS THAT THE ESPIONAGE ACT IS
APPLICABLE TO THE INDICTMENT BECAUSE ALL OF THE OVERT ACTS ALLEGED TOOK
PLACE BEFORE THE PASSAGE OF THE ATOMIC ENERGY ACT OF 1946.  PETITIONERS
MAINTAIN 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. 

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 SEC. 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." 

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. 

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.  IT MAY BE THAT NOT EVERY DEATH PENALTY IMPOSED FOR
DIVULGING ATOMIC SECRETS NEED FOLLOW THE PROCEDURE PRESCRIBED IN SEC.
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.  (FN2)  THIRD, THE OVERT ACTS OF THE CO-CONSPIRATOR, 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.  (FN3)  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. 

I DO NOT DECIDE THAT THE DEATH PENALTY COULD HAVE BEEN IMPOSED ON THE
ROSENBERGS ONLY IF THE PROVISIONS OF SEC. 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. 

IT IS IMPORTANT THAT THE COUNTRY BE PROTECTED AGAINST THE NEFARIOUS
PLANS OF SPIES WHO WOULD DESTROY US. 

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. 

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. 

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 SEC. 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.  SO ORDERED. 

FN1  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." 

FN2  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 FUCHS'
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)." 

FN3  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).** 

"*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)." 

"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 A 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 THOUGHT 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)." 
..END :







BURNS V. WILSON 346 U.S. 137 


NO. 422.  ARGUED FEBRUARY 5, 1953 - DECIDED JUNE 15, 1953 - 91 U.S. APP.
D.C. 208, 202 F.2D 335, AFFIRMED. 


TRIED SEPARATELY BY COURTS-MARTIAL, PETITIONERS WERE FOUND GUILTY OF
MURDER AND RAPE AND SENTENCED TO DEATH.  AFTER EXHAUSTING ALL REMEDIES
AVAILABLE TO THEM UNDER THE REVISED ARTICLES OF WAR, 62 STAT. 627,
PETITIONERS APPLIED TO A FEDERAL DISTRICT COURT FOR WRITS OF HABEAS
CORPUS, ALLEGING THAT THEY HAD BEEN DENIED DUE PROCESS OF LAW IN THE
PROCEEDINGS LEADING TO THEIR CONVICTIONS BY THE COURTS-MARTIAL. 
RESPONDENTS DENIED THESE ALLEGATIONS AND ATTACHED TO THEIR ANSWER
COPIES OF THE RECORDS OF THE TRIALS AND OF ALL PROCEEDINGS BY THE
MILITARY REVIEWING AUTHORITIES, WHICH SHOWED PLAINLY THAT THE MILITARY
COURTS HAD HEARD PETITIONERS ON EVERY SIGNIFICANT ALLEGATION URGED
BEFORE THE DISTRICT COURT.  AFTER SATISFYING ITSELF THAT THE COURTS
MARTIAL HAD COMPLETE JURISDICTION, THE DISTRICT COURT DISMISSED THE
APPLICATIONS WITHOUT HEARING EVIDENCE AND WITHOUT FURTHER REVIEW.  THE
COURT OF APPEALS GAVE PETITIONERS' ALLEGATIONS FULL CONSIDERATION ON
THEIR MERITS, REVIEWED THE EVIDENCE IN THE RECORD OF THE TRIAL AND
OTHER PROCEEDINGS BEFORE THE MILITARY COURTS, AND AFFIRMED.  HELD:
JUDGMENT AFFIRMED.  PP. 138-146. 

BURNS ET AL. V. WILSON, SECRETARY OF DEFENSE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE DISTRICT COURT DISMISSED PETITIONERS' APPLICATIONS FOR WRITS OF
HABEAS CORPUS.  104 F. SUPP. 310, 312.  THE COURT OF APPEALS AFFIRMED. 
91 U.S. APP. D.C. 208, 202 F.2D 335.  THIS COURT GRANTED CERTIORARI. 
344 U.S. 903.  AT THE TIME OF THE ARGUMENT, FEBRUARY 5, 1953, WILSON,
PRESENT SECRETARY OF DEFENSE, WAS SUBSTITUTED FOR LOVETT, FORMER
SECRETARY OF DEFENSE.  AFFIRMED, P. 146. 

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. 

TRIED SEPARATELY BY AIR FORCE 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. 

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. 

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.  104 F. SUPP. 310, 312.  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.  91 U.S. APP. D.C. 208, 202 F.2D 335. 

WE GRANTED CERTIORARI, 344 U.S. 903.  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. 

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.  (FN1) 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. 

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, 339 U.S.
103 (1950).  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. 

MILITARY LAW, LIKE STATE LAW, IS A JURISPRUDENCE WHICH EXISTS
SEPARATE AND APART FROM THE LAW WHICH GOVERNS IN OUR FEDERAL JUDICIAL
ESTABLISHMENT.  (FN2)  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.  (FN3)  THE FRAMERS
EXPRESSLY ENTRUSTED THAT TASK TO CONGRESS. 

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.  (FN4)  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.  (FN5) 

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.  (FN6)  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.  (FN7)  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.  (FN8) 

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 HABEAS 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.  (FN9)  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, 340
U.S. 128 (1950).  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, 340 U.S. 122
(1950). 

WE TURN, THEN, TO THIS CASE. 

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 DISPENSING 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. 

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 PETITIONER DENNIS' 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.  (FN10) 

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. 

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. 

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; (FN11) 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.  (FN12)  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.  (FN13) 

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. 

FN1  28 U.S.C. SEC. 2241.  SEE IN RE YAMASHITA, 327 U.S. 1, 8
(1946). 

FN2  SEE DYNES V. HOOVER, 20 HOW.  65, 82 (1858); CF. IN RE VIDAL,
179 U.S. 126 (1900); REAVES V. AINSWORTH, 219 U.S. 296 (1911); EX PARTE
QUIRIN, 317 U.S. 1 (1942).    FN3  SEE, E.G., IN RE GRIMLEY, 137 U.S.
147 (1890); HIATT V. BROWN, 339 U.S. 103 (1950). 

FN4  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. 

FN5  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). 

FN6  FOR PROVISIONS TO THIS EFFECT IN THE REVISED ARTICLES OF WAR,
SEE, E.G., 10 U.S.C.  (SUPP. II) SECS. 1482, 1493, 1495, 1542, 1560. 
FOR PROVISIONS IN THE UNIFORM CODE OF MILITARY JUSTICE, SEE, E.G., 50
U.S.C. (SUPP. V) SECS. 564, 567, 591, 602, 612, 621. 

FN7  10 U.S.C. (SUPP. II) SEC. 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) SEC. 654.  SEE WALKER AND
NIEBANK, THE COURT OF MILITARY APPEALS - ITS HISTORY, ORGANIZATION AND
OPERATION, 6 VAND.  L. REV. 228 (1953). 

FN8  62 STAT. 639, 10 U.S.C. (SUPP. III) SEC. 1525.  SEE GUSIK V.
SCHILDER, 340 U.S. 128 (1950).  THIS PROVISION WAS ALSO MADE A PART OF
THE UNIFORM CODE OF MILITARY JUSTICE.  64 STAT. 132, 50 U.S.C. (SUPP.
V) SEC. 660; 64 STAT. 147, 50 U.S.C. (SUPP. V) SEC. 740. 

FN9  THE REVISIONS OF THE ARTICLES OF WAR, 10 U.S.C. (SUPP. II) SEC.
1521(H), AND THE UNIFORM CODE OF MILITARY JUSTICE, 50 U.S.C. (SUPP. V)
SEC. 663, BOTH PROVIDED THAT THE DECISIONS OF THE APPELLATE MILITARY
TRIBUNALS SHOULD BE "FINAL" AND SHOULD BE "BINDING" UPON THE COURTS. 

FN10  PETITIONERS SUBMITTED THE AFFIDAVITS OF PETITIONER DENNIS, AN
AIR FORCE CHAPLAIN, A FORMER 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. 

FN11  SEE HIATT V. BROWN, 339 U.S. 103 (1950).  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. 

FN12  WE REJECT PETITIONERS' CONTENTIONS THAT THE RULE OF MCNABB V.
UNITED STATES, 318 U.S. 332 (1943), 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 340; CF. GALLEGOS V.
NEBRASKA, 342 U.S. 55 (1951).  WE HAVE OF COURSE NO SUCH SUPERVISORY
POWER OVER THE ADMISSIBILITY OF EVIDENCE IN COURTS-MARTIAL. 

FN13  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) SEC.
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. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE MINTON, CONCURRING IN THE AFFIRMANCE OF THE JUDGMENT. 

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 CONSTITUTION
(FN1) AND BY CONGRESS ACTING IN PURSUANCE THEREOF (FN2) 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. 

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) SEC. 581. 

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. 

THE RULE WAS CLEARLY STATED IN THE EARLY CASE OF IN RE GRIMLEY, 137
U.S. 147, 150, IN THESE WORDS:

"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  ...  ." 

THIS CASE WAS CITED AND AN EXCERPT FROM THE ABOVE QUOTED WITH
APPROVAL IN HIATT V. BROWN, 339 U.S. 103, 111.  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: 

"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  ...  ." 

WITH THIS UNDERSTANDING, I CONCUR IN AFFIRMING THE JUDGMENT. 

FN1  ART. I, SEC. 8, CL. 14. 

FN2  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) SEC. 551 ET SEQ. 

MR. JUSTICE FRANKFURTER. 

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. 

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.  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 CO., 251 U.S. 146, 156.  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."  91
U.S. APP. D.C. 208, AT 225, 202 F.2D 335, AT 352. 

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. 

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.* 

*SEE ALSO FURTHER OPINION OF MR. JUSTICE FRANKFURTER, POST, P. 844. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

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. 

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 INTERMITTENTLY 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. 

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. 

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.    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.    THOSE ARE THE UNDISPUTED FACTS
CONCERNING THE CONFESSIONS. 

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 AND 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. 

I THINK PETITIONERS ARE ENTITLED TO A JUDICIAL HEARING ON THE
CIRCUMSTANCES SURROUNDING THEIR CONFESSIONS. 

CONGRESS HAS POWER BY ART. I, SEC. 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. SEC. 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. 

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; WHELCHEL V. MCDONALD, 340 U.S. 122; GUSIK V.
SCHILDER, 340 U.S. 128.  BUT IT IS ALSO CLEAR THAT THIS REVIEW IS NOT
LIMITED TO QUESTIONS OF "JURISDICTION" IN THE HISTORIC SENSE. 

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, 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, P. 124.  BUT NEVER HAVE WE HELD THAT ALL THE RIGHTS
COVERED BY THE FIFTH AND THE SIXTH AMENDMENTS WERE ABROGATED BY ART. I,
SEC. 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: 

"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." 

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? 

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, THAT COURT-MARTIAL 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. 

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 SOLDIER 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; JOHNSON V. ZERBST, 304 U.S.
458; WALKER V. JOHNSTON, 312 U.S. 275; PYLE V. KANSAS, 317 U.S. 213;
VON MOLTKE V. GILLIES, 332 U.S. 708), HE SHOULD HAVE RELIEF BY WAY OF
HABEAS CORPUS. 

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. 

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. 

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,
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: 

"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; LISENBA V. CALIFORNIA, 314 U.S.
219).  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, 104 F.2D 892; ACM 3597, MADDLE, 4
COURT-MARTIAL REPORTS (AF) 573)." 

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. 
..END :




















STEIN V. NEW YORK 346 U.S. 156 


NO. 391.  ARGUED DECEMBER 18, 1952 - DECIDED JUNE 15, 1953 - 303 N.Y.
856, 104 N.E.2D 917, AFFIRMED. 


IN A NEW YORK STATE COURT, A JURY FOUND THE THREE PETITIONERS GUILTY
OF MURDER, AND THEY WERE SENTENCED TO DEATH.  THE MURDER ALLEGEDLY WAS
COMMITTED WHILE PETITIONERS, AND AN ACCOMPLICE WHO TURNED STATE'S
EVIDENCE, WERE ENGAGED IN AN ARMED HOLDUP.  THE EVIDENCE AT THE TRIAL
INCLUDED SEPARATE WRITTEN CONFESSIONS BY TWO OF THE PETITIONERS.  EACH
WRITTEN CONFESSION IMPLICATED ALL THREE PETITIONERS AND ALL OBJECTED TO
INTRODUCTION OF EACH CONFESSION ON THE GROUND THAT IT WAS COERCED.  THE
TRIAL COURT DENIED A MOTION BY THE THIRD PETITIONER THAT, IF THE
CONFESSIONS WERE ADMITTED, ALL REFERENCE TO HIM BE STRICKEN FROM THEM. 
THE COURT HEARD EVIDENCE IN THE PRESENCE OF THE JURY AS TO THE ISSUE OF
COERCION AND LEFT DETERMINATION OF THAT ISSUE TO THE JURY, WHICH
RENDERED A GENERAL VERDICT OF GUILTY.  THE NEW YORK COURT OF APPEALS
AFFIRMED WITHOUT OPINION.  HELD:  THERE WAS NO VIOLATION OF THE
FOURTEENTH AMENDMENT IN THE PROCEEDINGS, AND THE JUDGMENTS ARE
AFFIRMED.  PP. 159-197. 

1.  PETITIONERS WERE NOT DENIED A FAIR HEARING ON THE COERCION
ISSUE.  PP. 170-179. 

(A)  THE FOURTEENTH AMENDMENT CANNOT BE CONSTRUED AS ALLOWING
PETITIONERS TO TESTIFY TO THEIR COERCION BY THE POLICE WITHOUT BECOMING
SUBJECT TO ANY CROSS-EXAMINATION.  PP. 174-176. 

(B)  IN THE 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. 
P. 177. 

(C)  THE FOURTEENTH AMENDMENT DOES NOT FORBID JURY TRIAL OF THE ISSUE
WHETHER A CONFESSION WAS COERCED; NOR DOES IT FORBID ITS SUBMISSION TO
A JURY TENTATIVELY AND WITH PROPER INSTRUCTIONS ALONG WITH THE ISSUE OF
GUILT, ALTHOUGH A GENERAL VERDICT OF GUILTY DOES NOT DISCLOSE THE
JURY'S DECISION ON THE ISSUE OF COERCION.  PP. 177-179. 

2.  ON THE RECORD IN THIS CASE, IT DID NOT VIOLATE THE FOURTEENTH
AMENDMENT IF THE JURY RESOLVED THAT THE CONFESSIONS WERE ADMISSIBLE AS
A BASIS FOR CONVICTION.  PP. 179-188. 

(A)  WHEN THE ISSUE AS TO WHETHER CONFESSIONS WERE COERCED HAS BEEN
FAIRLY TRIED AND REVIEWED BY THE COURTS OF A STATE, AND THERE IS NO
INDICATION THAT CONSTITUTIONAL STANDARDS OF JUDGMENT HAVE BEEN
DISREGARDED, THIS COURT WILL ACCEPT THE STATE'S DETERMINATION OF THE
ISSUE, IN THE ABSENCE OF IMPEACHMENT BY CONCEDED FACTS.  PP. 180-182. 

(B)  UPON THE EVIDENCE IN THIS CASE, THE STATE COURTS COULD PROPERLY
FIND THAT THE CONFESSIONS WERE NOT OBTAINED BY PHYSICAL FORCE OR
THREATS.  PP. 182-184. 

(C)  UPON THE EVIDENCE IN THIS CASE, THE STATE COURTS COULD PROPERLY
FIND THAT THE CONFESSIONS WERE NOT OBTAINED BY PSYCHOLOGICAL COERCION. 
PP. 184-186. 

(D)  THE ILLEGAL DELAY IN THE ARRAIGNMENT OF PETITIONERS DID NOT
ALONE REQUIRE REJECTION OF THE CONFESSIONS UNDER THE FOURTEENTH
AMENDMENT.  PP. 186-188. 

3.  IF THE JURY REJECTED THE CONFESSIONS, IT COULD CONSTITUTIONALLY
BASE A CONVICTION ON OTHER SUFFICIENT EVIDENCE.  PP. 188-194. 

(A) THERE WAS NO CONSTITUTIONAL ERROR IN THE TRIAL COURT'S REFUSAL OF
PETITIONER'S REQUEST FOR INSTRUCTION TO THE JURY THAT, IF IT FOUND THE
CONFESSIONS TO HAVE BEEN COERCED, IT MUST RETURN A VERDICT OF
ACQUITTAL.  PP. 188-193. 

(B)  THE SUBMISSION OF A CONFESSION TO A STATE JURY TENTATIVELY AND
UNDER PROPER INSTRUCTIONS FOR JUDGMENT OF THE COERCION ISSUE DOES NOT
PRECLUDE A CONVICTION ON OTHER SUFFICIENT EVIDENCE IF IT REJECTS THE
CONFESSION.  P. 190. 

(C)  THE OTHER EVIDENCE OF PETITIONERS' GUILT, CONSISTING OF DIRECT
TESTIMONY OF THE SURVIVING VICTIM AND OF A WELL-CORROBORATED
ACCOMPLICE, AS WELL AS INCRIMINATING CIRCUMSTANCES UNEXPLAINED, IS SUCH
THAT, APART FROM THE CONFESSIONS, IT COULD NOT BE HELD CONSTITUTIONALLY
OR LEGALLY INSUFFICIENT TO WARRANT THE JURY VERDICT.  PP. 190-192. 

(D)  THE FOURTEENTH AMENDMENT DOES NOT ENACT A RIGID EXCLUSIONARY
RULE OF EVIDENCE RATHER THAN A GUARANTEE AGAINST CONVICTION ON
INHERENTLY UNTRUSTWORTHY EVIDENCE.  PP. 192-193. 

(E)  WHATEVER MAY HAVE BEEN THE GROUNDS OF THE NEW YORK COURT OF
APPEALS' AFFIRMANCE OF THE JUDGMENTS IN THIS CASE, THE DECISION HERE IS
BASED, NOT UPON THE GROUND OF HARMLESS ERROR, BUT UPON THE GROUND THAT
THERE WAS NO CONSTITUTIONAL ERROR.  PP. 193-194. 

4.  AS TO THE THIRD PETITIONER'S OBJECTIONS RELATING TO THE
ADMISSIBILITY OF THE CONFESSIONS TO WHICH HE WAS NOT A PARTY, THERE WAS
NO CONSTITUTIONAL ERROR SUCH AS WOULD JUSTIFY SETTING ASIDE HIS
CONVICTION.  PP. 194-196. 

(A)  THE HOLDING THAT IT WAS PERMISSIBLE FOR THE STATE COURTS TO FIND
THAT THE CONFESSIONS WERE VOLUNTARY TAKES AWAY THE SUPPORT FOR THIS
OBJECTION IN THIS COURT.  P. 194. 

(B)  IN THE LIGHT OF THE OTHER TESTIMONY IN THE CASE, THE DELETION OF
THIS PETITIONER'S NAME FROM THE CONFESSIONS WOULD NOT HAVE HELPED HIM. 
P. 194. 

(C)  THIS PETITIONER'S RIGHTS UNDER THE FOURTEENTH AMENDMENT WERE NOT
INFRINGED BY THE FACT THAT HE WAS UNABLE TO CROSS-EXAMINE THE
CONFESSORS.  P. 195. 

(D)  THE HEARSAY-EVIDENCE RULE, WITH ALL ITS SUBTLETIES, ANOMALIES
AND RAMIFICATIONS, IS NOT EMBRACED BY THE FOURTEENTH AMENDMENT.  P.
196. 

(E)  THAT THE METHODS ADOPTED BY THE NEW YORK COURTS TO PROTECT THIS
PETITIONER AGAINST ANY DISADVANTAGE FROM THE USE OF THE CONFESSIONS MAY
NOT HAVE BEEN THE MOST EFFECTIVE CONCEIVABLE, DOES NOT RENDER THEM
VIOLATIVE OF THE FOURTEENTH AMENDMENT.  P. 196. 

5.  ON THE RECORD IN THIS CASE, THERE IS NO JUSTIFICATION FOR READING
THE FOURTEENTH AMENDMENT TO DENY THE STATE THE POWER TO HOLD THESE
PETITIONERS GUILTY.  PP. 196-197. 

STEIN V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.* 

*TOGETHER WITH NO. 392, WISSNER V. NEW YORK, AND NO. 393, COOPER V.
NEW YORK, ALSO ON CERTIORARI TO THE SAME COURT. 

IN A PROSECUTION IN A NEW YORK STATE COURT FOR MURDER, PETITIONERS
WERE CONVICTED BY A JURY AND SENTENCED TO DEATH.  THE NEW YORK COURT OF
APPEALS AFFIRMED.  303 N.Y.  856, 104 N.E.2D 917.  THIS COURT GRANTED
CERTIORARI, LIMITED TO THE QUESTION OF THE ADMISSIBILITY OF THE
CONFESSIONS.  344 U.S. 815.  AFFIRMED, P. 197. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE FOUND GUILTY OF FELONY MURDER (FN1) BY A JURY IN
WESTCHESTER COUNTY, NEW YORK, AND SENTENCED TO DEATH.  THE NEW YORK
COURT OF APPEALS AFFIRMED WITHOUT OPINION.  (FN2)  WE GRANTED
CERTIORARI, BECAUSE OF QUESTIONS RAISED BY USE OF TWO CONFESSIONS. 
(FN3) 

THE TRIAL LASTED OVER SEVEN WEEKS AND THE RECORD RUNS TO MORE THAN
3,000 PAGES.  EVIDENCE PROFFERED AND HEARD, SUBJECT TO REJECTION OR
ACCPETANCE 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 STRIKEN 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. 

I. FACTS ABOUT THE CRIME. 

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. 

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. 

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. 

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 GIVE 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. 

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. 

ALL FOUR WERE INDICTED FOR MURDER.  WHEN THE TIME CAME FOR TRIAL, THE
CASE AGAINST DORFMAN, 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. 

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. 

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. 

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.  (FN4)  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.  (FN5)  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.  (FN6) 

JEPPESON TESTIFIED THAT THE RENTAL TRUCK HAD BEEN LET TO COOPER ON
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. 

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
SHOT 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. 

UNDER NEW YORK LAW, DORFMAN'S TESTIMONY, SINCE HE WAS AN ACCOMPLICE,
REQUIRED CORROBORATION.  (FN7)  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 IN 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 3 (FN8)
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.  (FN9)  (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. 

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: 

"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  ...  . 

"  ...  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." 

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. 

AGAINST THIS BACKGROUND, WE COME TO THE CONTROVERSY OVER THE
CONFESSIONS.  UNCONTROVERTED EVIDENCE ESTABLISHES THE FOLLOWING: 

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. 

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. 

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 HAWTHORNE; 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 "CO-OPERATED."  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. 

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 WAS POSSESSED OF AMAZING POWERS OF DIVINATION. 

THE FOLLOWING DAY, STEIN WENT TO PLEASANTVILLE WITH TWO OFFICERS AND
EXPLAINED ON THE GROUND HOW THE CRIME HAD BEEN COMMITTED. 

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. 

THERE IS NO DIRECT TESTIMONY THAT PETITIONERS WERE SUBJECTED TO
PHYSICAL VIOLENCE OR THE THREAT OF IT DURING THEIR DETENTION.  (FN10)
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. 

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. 

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 THE INJURIES
SUSTAINED BY EACH WERE MORE EXTENSIVE THAN THOSE DESCRIBED IN THE
DOCTOR'S TESTIMONY. 

THE RECORD STANDS THAT THE INJURIES WERE OF SUCH NATURE THAT THEY
MIGHT HAVE BEEN RECEIVED PRIOR TO ARREST; (FN11) 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.  (FN12)

           III.  CONSTITUTIONALITY OF PROCEDURES EMPLOYED BELOW. 

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. 

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 WHEHTER 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.  (FN13) 

THE NEW YORK PROCEDURES IN THIS CASE THEREFORE MUST BE EXAMINED, NOT
ONLY AS TO THEIR OWN CONSTITUTIONALITY, BUT AS TO THEIR CONSEQUENCES IF
VALID, AND THE WEIGHT TO BE GIVEN TO CONCLUSIONS SO REACHED. 

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, (FN14) AND
STATUTE LAW HAS PROVIDED FOR EXCLUSION FROM EVIDENCE OF COERCED
CONFESSIONS SINCE 1881.  (FN15)  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. 

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."  (FN16)  EVEN WHERE IT FINDS THAT THE
JURY COULD 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, 401, 403, 180 N.E. 94, 97, 98. 

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. 

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. 

THE TRIAL COURT HELD A PRELIMINARY HEARING AS TO ADMISSIBILITY OF
THESE CONFESSIONS BEFORE THE JURY.  NO DEFENDANT OBJECTED OR REQUESTED
A 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.  (FN17) 

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.  (FN18) PETITIONERS SUBMITTED SUCH A MOTION, WHICH THE
JUDGE DENIED, THUS ADDING THE WEIGHT OF HIS OWN APPROVAL TO THE JURY
VERDICT. 

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.  (FN19)  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 ITS POSITION. 

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 PREVENT ABUSE AND INJUSTICE.  BUT HERE THE DEFENDANTS
TOOK NO STEP WHICH WOULD CALL FOR OR PERMIT AN EXERCISE OF SUCH
DISCRETION.  THEY MAD 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.  (FN20)  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. 

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 APPLIED 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. 
(FN21)  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. 

THE STATE DID NOT SEEK TO DRAW ANY INFERENCE ADVERSE TO DEFENDANTS
FROM THEIR CHOICE OF SILENCE, CF. ADAMSON V. CALIFORNIA, 332 U.S. 46,
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.    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. 

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. 

IN CIVIL CASES, CERTAINTY AND EXPOSURE OF THE PROCESS IS SOMETIMES
SOUGHT BY THE SPECIAL VERDICT OR BY SUBMISSION OF INTERROGATORIES. 
E.G., FED. RULES CIV. PROC., 49.  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; STATE V. BOGGS, 87 W.VA.  738, 106 S.E. 47,
WHICH USUALLY IMPLIES ONE SIMPLE GENERAL VERDICT THAT CONVICTS OR FREES
THE ACCUSED. 

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.  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.  "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, AT 267-268. 

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. 

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; MINNEAPOLIS & ST.
L.R. CO. V. BOMBOLIS, 241 U.S. 211.  MANY STATES EMULATE THE NEW YORK
PRACTICE, (FN22) WHILE OTHERS HOLD THAT PRESENCE OF THE JURY DURING
PRELIMINARY HEARING IS NOT ERROR.  (FN23) 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. 

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 DISCUSSED SEPARATELY. 

IV.  WAS IT UNCONSTITUTIONAL IF THESE CONFESSIONS

       WERE USED AS THE BASIS OF CONVICTION? 

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. 

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. CALIFORNIA, 314 U.S. 219,
236.  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? 

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 SUPER-JURY, 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.  (FN24) 

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. MILWAUKEE, 252 U.S. 100, 106.  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. 

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. 

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. NEBRASKA, 342 U.S. 55,
60; LYONS V. OKLAHOMA, 322 U.S. 596, 602-602; LISENBA V. CALIFORNIA,
314 U.S. 219. 

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. 

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. 

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.  (FN25)  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. 

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 TELLS US WHAT DEFENDATS 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. 

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. 

WE DETERMINE THAT THE STATE COURT COULD PROPERLY FIND THAT THE
CONFESSIONS WERE NOT OBTAINED BY PHYSICAL FORCE OR THREATS. 

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. 

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.  (FN26)  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. 

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. 

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," (FN27) WE HAVE ALSO SUSTAINED
CONVICTION WHEN, UNDER DIFFERENT CIRCUMSTANCES, THE RELAY TECHNIQUE WAS
EMPLOYED.  (FN28)  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. 

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. 

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 DICTATE 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.  (FN29)  BOTH CONFESSIONS WERE
"VOLUNTARY," IN THE ONLY SENSE IN WHICH CONFESSIONS TO THE POLICE BY
ONE UNDER ARREST AND SUSPICION EVER ARE.  THE STATE COURTS COULD
PROPERLY FIND AN ABSENCE OF PSYCHOLOGICAL COERCION. 

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.  (FN30)  HOWEVER,
SUCH DELAY DOES NOT MAKE A CONFESSION SECURED DURING SUCH PERIOD OF
ILLEGAL DETENTION NECESSARILY INADMISSIBLE AS A MATTER OF NEW YORK
LAW.  (FN31) 

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. 

PETITIONERS CONFUSE THE MORE RIGID RULE OF EXCLUSION WHICH, IN THE
EXERCISE OF OUR SUPERVISORY POWER, (FN32) WE HAVE PROMULGATED FOR
FEDERAL COURTS WITH THE MORE LIMITED REQUIREMENTS OF THE FOURTEENTH
AMENDMENT.  (FN33)  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. CALIFORNIA, 343 U.S.
181, 197; LISENBA V. CALIFORNIA, 314 U.S. 219. 

FROM THE FOREGOING CONSIDERATIONS, WE CONCLUDE THAT IF THE JURY
RESOLVED THAT THE CONFESSIONS WERE ADMISSIBLE AS A BASIS FOR CONVICTION
IT WAS NOT CONSTITUTIONAL ERROR. 

      V. IF THE JURY REJECTED THE CONFESSIONS, COULD IT

              CONSTITUTIONALLY BASE A CONVICTION ON

             OTHER SUFFICIENT EVIDENCE? 

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. NEW YORK, 324 U.S.
401, 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 (P. 404):  "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. 

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. 

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.  (FN34)  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. 

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. 

IT IS NOT DENIABLE THAT APART FROM THE MALINSKI STATEMENT THERE HAVE
BEEN OTHER SIMILAR UTTERANCES.  LYONS V. OKLAHOMA, 322 U.S. 596, 597
(FOOTNOTE); STROBLE V. CALIFORNIA, 343 U.S. 181, 190; GALLEGOS V.
NEBRASKA, 342 U.S. 55, 63.  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. 

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. MISSISSIPPI, 297 U.S. 278, 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. TENNESSEE, 322 U.S. 143, 145, AND WARD V. TEXAS,
316 U.S. 547, 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" (P. 60) AND THIS COURT THEREFORE ASSUMED THAT THE JURY
FOUND THE STATEMENTS VOLUNTARY. 

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.  (FN35)
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 CONFESSIONS HAD BEEN OMITTED AND THE CONVICTIONS RESTED
ON THE OTHER EVIDENCE ALONE, WE WOULD FIND NO GROUNDS TO REVIEW, NOT TO
MENTION TO REVERSE THEM. 

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. 

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 CONFESSIONS.  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 CONFESSIONS FINALLY WERE REJECTED AS THE FREE CHOICE OF THE
JURY. 

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. COLORADO, 338 U.S. 25; SCHWARTZ
V. TEXAS, 334 U.S. 199; SNYDER V. MASSACHUSETTS, 291 U.S. 97.  SEE
ADAMSON V. CALIFORNIA, 332 U.S. 46; UNITED STATES V. CARIGNAN, 342 U.S.
36.  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 FORCED 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. 

WE FIND NO ERROR IN REFUSING THE INSTRUCTION ASKED IN THIS CASE. 

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, (FN36) LIKE THE FEDERAL RULES OF CRIMINAL PROCEDURE,
(FN37) 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. 

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. 

                           VI.  WISSNER'S CASE. 

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. 

HOWEVER, WE FIND AS REGARDS WISSNER NO CONSTITUTIONAL ERROR SUCH AS
WOULD JUSTIFY OUR SETTING ASIDE HIS CONVICTION. 

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. NEW YORK, 324 U.S. 401, 410-412.  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."  P. 430.  ON REMAND, THE NEW YORK COURT OF
APPEALS ON ITS OWN INITIATIVE ORDERED A NEW TRIAL FOR RUDISH AS WELL AS
MALINSKI.  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. 

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. MASSACHUSETTS, 291 U.S. 97, 107.  (FN38)  HOWEVER, THE WORDS CITED
WERE QUOTED VERBATIM FROM DOWDELL V. UNITED STATES, 221 U.S. 325, 330,
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 AT
HIS OWN TRIAL.  (FN39)  THE COURT IN SNYDER SPECIFICALLY REFRAINED FROM
HOLDING THAT THERE WAS ANY RIGHT OF CONFRONTATION UNDER THE FOURTEENTH
AMENDMENT, (FN40) AND CLEARLY HELD TO THE CONTRARY IN WEST V.
LOUISIANA, 194 U.S. 258, IN WHICH IT WAS DECIDED THAT THE FEDERAL
CONSTITUTION DID NOT PRECLUDE LOUISIANA FROM USING AFFIDAVITS ON A
CRIMINAL TRIAL. 

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. LOUISIANA, SUPRA. 

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.
MASSACHUSETTS, SUPRA, AT 105. 

         VII. 

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; KOEHLER V. UNITED STATES, 189
F.2D 711, 342 U.S. 852. 

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.  (FN41) 

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.  AFFIRMED. 

FN1  A HOMICIDE COMMITED 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, SECS. 1044(2), 1045, 1045-A.  NO SUCH RECOMMENDATION WAS MADE
HERE. 

FN2  PEOPLE V. COOPER, 303 N.Y. 856, 104 N.E.2D 917. 

FN3  344 U.S. 815. 

FN4  THE DEFENSE ARGUED THAT WATERBURY'S RECOLLECTION WAS INACCURATE
AND THAT HE HAD ONLY 25% VISION IN ONE EYE. 

FN5  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, AFF'D, 224 N.Y. 90, 120 N.E. 113, SUCH
UTTERANCES ARE NOT USUALLY SUBJECT TO THE SAME RESTRICTIONS ON
ADMISSIBILITY AS ARE CONFESSIONS.  SEE 3 WIGMORE ON EVIDENCE (3D ED.) 
SEC.  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. 

FN6  THE DEFENSE POINTS 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. 

FN7  N.Y. CODE CRIM. PROC., SEC. 399.  PEOPLE V. GOLDSTEIN, 285 N.Y.
376, 34 N.E.2D 362. 

FN8  THERE IS CONFLICT BETWEEN THE TESTIMONY OF HOMISHAK AND DORFMAN,
THE FORMER PLACING THE FOUR CONSPIRATORS ON APRIL 3 AT A PLACE
DIFFERENT FROM THAT WHERE DORFMAN SAYS THEY WERE. 

FN9  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. 

FN10  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. 

FN11  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 HAVE BEEN SUSTAINED PRIOR TO ARREST. 

FN12  THIS EVIDENCE WAS HEARSAY, BUT WAS NOT OBJECTED TO BY THE
DEFENDANTS. 

FN13  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.  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. 

FN14  N.Y. CONST., ART. I, SEC. 6. 

FN15  N.Y. CODE CRIM. PROC., SEC. 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. 

FN16  N.Y. CODE CRIM. PROC., SEC. 528. 

FN17  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. 

FN18  N.Y. CODE CRIM. PROC., SEC. 465. 

FN19  SEE PEOPLE V. TRYBUS, 219 N.Y. 18, 113 N.E. 538. 

FN20  AS WAS DONE, WITHOUT SUCCESS, IN WITT V. UNITED STATES, 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. 

FN21  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    ATTEMPTED GRAND                        3
YEARS

                   LARCENY. 
(SUSPENDED). 

1934     BROOKLYN, N.Y         MURDER   SING SING          20 YEARS
TO LIFE. 

1948     U.S. COURT,           DYER ACT            LEWISBURG
3 YEARS. 

         N.Y.C.                             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,    PERJURY             LEWISBURG          2
YEARS. 

N.Y.C.                                  WISSNER 

1928 BROOKLYN, N.Y         ATTEMPTED           REFORM SCHOOL,

                         ROBBERY.            ELMIRA, N.Y. 

1934     WESTCHESTER CO        ROBBERY             SING SING
15 YEARS. 

FN22  SEE CASES CITED IN 3 WIGMORE ON EVIDENCE (3D ED.)  SEC.  861. 

FN23  SEE ANNOTATION IN 148 A.L.R. 546.  CF. UNITED STATES V.
CARIGNAN, 342 U.S. 36, 38, FOR THE RULE IN FEDERAL COURTS. 

FN24  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 THE TIME HE CONFESSES IS
IN POSSESSION OF 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. 

   *         *         *         *         * 

"  ...  THERE 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; 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." 

FN25  SEE PEOPLE V. BARBATO, 254 N.Y. 170, 172 N.E. 458. 

FN26  N.Y. CODE CRIM. PROC., SEC. 618-B; CF. FED. RULES CRIM. PROC.,
46(B). 

FN27  MALINSKI V. NEW YORK, 324 U.S. 401; WATTS V. INDIANA, 338 U.S.
49; TURNER V. PENNSYLVANIA, 338 U.S. 62; HARRIS V. SOUTH CAROLINA, 338
U.S. 68; ASHCRAFT V. TENNESSEE, 322 U.S. 143. 

FN28  LISENBA V. CALIFORNIA, SUPRA, AT 229, 239. 

FN29  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." 

FN30  UNDER NEW YORK LAW, A DEFENDANT MUST BE PROMPTLY TAKEN BEFORE A
MAGISTRATE, CODE OF CRIMINAL PROCEDURE, SEC. 165, AND FAILURE TO DO SO
RENDERS THE ARRESTING OFFICER LIABLE TO CRIMINAL PROSECUTION.  N.Y.
PENAL LAW, SEC. 1844. 

FN31  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. 

FN32  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. 

FN33  COMPARE MCNABB V. UNITED STATES, 318 U.S. 332, WITH STROBLE V.
CALIFORNIA, 343 U.S. 181, 197; WEEKS V. UNITED STATES, 232 U.S. 383,
WITH WOLF V. COLORADO, 338 U.S. 25; NARDONE V. UNITED STATES, 302 U.S.
379, AND WEISS V. UNITED STATES, 308 U.S. 321, 329, WITH SCHWARTZ V.
TEXAS, 344 U.S. 199.  SEE ALSO UNITED STATES V. CARIGNAN, 342 U.S. 36. 

FN34  N.Y. CONST., ART. I, SEC. 6. 

FN35  BRAM V. UNITED STATES, 168 U.S. 532, HAS BEEN CITED AS
AUTHORITY, FOR THE PROPOSITION THAT AN INADMISSIBLE CONFESSION
AUTOMATICALLY REQUIRES REVERSAL, BECAUSE OF THIS LANGUAGE (P. 541):
"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 CONSEQUENCES 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
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
BRING 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. TEXAS, 310 U.S. 530. 

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. 

FN36  N.Y. CODE CRIM. PROC., SEC. 542. 

FN37  FED. RULES CRIM. PROC., SEC. 52(A). 

FN38  "'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. 

FN39  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. 

FN40  "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. LOUISIANA.)" 
291 U.S., AT 106. 

FN41  SEE HALL, POLICE AND LAW 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. 

MR. JUSTICE BLACK, DISSENTING. 

I CONCUR IN MR. JUSTICE DOUGLAS' OPINION. 

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. FLORIDA, 309 U.S. 227, 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.*
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, 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  ...
." 

*I DO NOT UNDERSTAND THAT WEST V. LOUISIANA, 194 U.S. 258, HELD THE
CONTRARY.  IT DID HOLD AT PP. 263-264 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 NON-RESIDENT AND IS PERMANENTLY BEYOND THE JURISDICTION OF
THE STATE  ...  ." 

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. FLORIDA, SUPRA, AND ASHCRAFT V. TENNESSEE, 322 U.S. 143,
327 U.S. 274 (ALLEGED CONFESSIONS EXTRACTED WITHOUT VIOLENCE WHILE
SUSPECTS HELD INCOMMUNICADO AT THE MERCY OF POLICE OFFICERS); IN RE
OLIVER, 333 U.S. 257 (SECRET CONVICTION BASED ON INCOMMUNICADO
QUESTIONING BY THREE JUDGES WHERE THE ACCUSED HAD NEITHER RELATIVE,
FRIEND NOR COUNSEL PRESENT); JOINT ANTI-FASCIST REFUGEE COMMITTEE V.
MCGRATH, 341 U.S. 123, 142 (ATTORNEY GENERAL'S PUBLIC CONDEMNATION OF
GROUPS AS TREASONABLE AND SUBVERSIVE BASED ON SECRET INFORMATION
WITHOUT NOTICE OR HEARING); DISSENTING OPINIONS, GALLEGOS V. NEBRASKA,
342 U.S. 55, 73 (ARBITRARY ARREST, SECRET IMPRISONMENT AND SYSTEMATIC
QUESTIONING TO OBTAIN AN ALLEGED CONFESSION); CARLSON V. LANDON, 342
U.S. 524, 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 (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 (ATTORNEY GENERAL'S JUDICIALLY
UNREVIEWABLE IMPRISONMENT AND DENIAL OF BAIL TO AN ALIEN BASED ON
SECRET UNDISCLOSED INFORMATION AND WITHOUT A HEARING). 

I JOIN MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS IN PROTESTING
THE COURT'S ACTION IN THESE CASES. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

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.    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. 

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. NEW YORK, 324 U.S. 401, 412;
HALEY V. OHIO, 332 U.S. 596, 601.  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. 

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. 

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. 

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. 

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 THIRY
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).* 

*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. 

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. 

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
COMTEMPLATED BY THE COURT.  BUT IT WILL NOT BE THE FIRST TIME THAT
RESULTS NEITHER DESIRED NOR FORESEEN BY AN OPINION HAVE FOLLOWED. 

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. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

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 BE SENT TO HIS DEATH. 

IN TAKING THAT COURSE THE COURT CHOOSES A SHORT CUT WHICH DOES
VIOLENCE TO OUR CONSTITUTIONAL SCHEME. 

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. 

POWELL V. ALABAMA, 287 U.S. 45, 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; WILLIAMS V. KAISER,
323 U.S. 471; TOMKINS V. MISSOURI, 323 U.S. 485; DE MEERLEER V.
MICHIGAN, 329 U.S. 663.  IN HAWK V. OLSON, 326 U.S. 271, AT 278, WE
SAID: 

"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 ARRAIGNEMTN IS TOO LARGE TO PERMIT SPECULATION ON ITS EFFECT  ...
. 

"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." 

A SIMILAR RULE PREVAILS WHERE THE PROSECUTION HAS MADE KNOWING USE OF
PERJURED TESTIMONY TO CONVICT AN ACCUSED.  MOONEY V. HOLOHAN, 294 U.S.
103, 112; HYSLER V. FLORIDA, 315 U.S. 411; PYLE V. KANSAS, 317 U.S.
213.  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. 

IN IN RE OLIVER, 333 U.S. 257, 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. 

IN MOORE V. DEMPSEY, 261 U.S. 86, 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: 

"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." 

ANOTHER ILLUSTRATION IS THE PRACTICE OF DISCRIMINATING AGAINST
NEGROES IN THE SELECTION OF JURIES.   IN NONE OF THE CASES FROM NEAL V.
DELAWARE, 103 U.S. 370, AND CARTER V. TEXAS, 177 U.S. 442, DOWN TO
AVERY V. GEORGIA, 345 U.S. 559, DECIDED MAY 25, 1953, 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." 
345 U.S., AT 561.  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? 

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. 

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. NEW YORK, 324 U.S. 401, 404; STROBLE V.
CALIFORNIA, 343 U.S. 181, 190; LYONS V. OKALHOMA, 322 U.S. 596, 597;
HALEY V. OHIO, 332 U.S. 596, 599; AND GALLEGOS V. NEBRASKA, 342 U.S.
55, 63. 

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 598) 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 HAVE BEEN DIFFERENT IF THE
CONFESSION HAD BEEN EXCLUDED.  343 U.S., AT 189.  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., AT 190-191.    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. 

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. 

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. CALIFORNIA, 314 U.S. 219, 236, MR. JUSTICE ROBERTS, SPEAKING
FOR THE COURT CONCERNING THE INADMISSIBILITY OF COERCED CONFESSIONS,
SAID: 

"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." 

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. 

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. MISSISSIPPI, 297 U.S. 278, 286; CHAMBERS V. FLORIDA, 309
U.S. 227, 238), 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. 

*FROM THE UNDISPUTED FACTS IT SEEMS CLEAR THAT THESE CONFESSIONS
WOULD BE CONDEMNED IF THE CONSTITUTIONAL SCHOOL OF THOUGHT WHICH
PREVAILED WHEN HALEY V. OHIO, 332 U.S. 596, WATTS V. INDIANA, 338 U.S.
49, TURNER V. PENNSYLVANIA, 338 U.S. 62, AND HARRIS V. SOUTH CAROLINA,
338 U.S. 68, WERE DECIDED STILL WAS THE DOMINANT ONE. 
..END :



















BRIDGES V. UNITED STATES 346 U.S. 209 


NO. 548.  ARGUED MAY 4, 1953 - DECIDED JUNE 15, 1953 - 199 F.2D 811,
REVERSED. 


IN 1945, PETITIONERS TESTIFIED IN A NATURALIZATION HEARING WHICH
RESULTED IN PETITIONER BRIDGES' ADMISSION TO CITIZENSHIP.  IN 1949, ALL
THREE WERE INDICTED UNDER SEC. 37 OF THE OLD CRIMINAL CODE, 35 STAT.
1096, NOW 18 U.S.C. (SUPP. V) SEC. 371, FOR CONSPIRING TO DEFRAUD THE
UNITED STATES BY OBSTRUCTING THE PROPER ADMINISTRATION OF ITS
NATURALIZATION LAWS, BRIDGES WAS INDICTED UNDER SEC. 346(A)(1) OF THE
NATIONALITY ACT OF 1940 FOR TESTIFYING FALSELY IN THE NATURALIZATION
PROCEEDING THAT HE WAS NOT AND HAD NOT BEEN A MEMBER OF THE COMMUNIST
PARTY, AND PETITIONERS SCHMIDT AND ROBERTSON WERE INDICTED UNDER SEC.
346(A)(5) OF THE SAME ACT FOR WILFULLY AND KNOWINGLY AIDING BRIDGES TO
OBTAIN A CERTIFICATE OF NATURALIZATION BY FALSE AND FRAUDULENT
STATEMENTS.  HELD:  THE GENERAL THREE-YEAR STATUTE OF LIMITATIONS, 18
U.S.C. (SUPP. V), SEC. 3282, IS APPLICABLE TO EACH OF THE OFFENSES
CHARGED, AND THE INDICTMENT CAME TOO LATE.  PP. 210-228. 

1.  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.  PP. 215-224. 

(A)  THE WARTIME SUSPENSION OF LIMITATIONS ACT APPLIES TO OFFENSES
INVOLVING THE DEFRAUDING OF THE UNITED STATES IN ANY MANNER, BUT ONLY
WHEN THE FRAUD IS OF A PECUNIARY NATURE OR AT LEAST OF A NATURE
CONCERNING PROPERTY; AND NONE OF THE OFFENSES HERE CHARGED WERE OF SUCH
A NATURE.  PP. 215-221. 

(B)  THE WARTIME SUSPENSION OF LIMITATIONS AUTHORIZED BY CONGRESS IN
THE LANGUAGE OF THIS ACT, OR SIMILAR LANGUAGE IN COMPARABLE ACTS, IS
LIMITED STRICTLY TO OFFENSES IN WHICH DEFRAUDING OR ATTEMPTING TO
DEFRAUD THE UNITED STATES IS AN ESSENTIAL INGREDIENT OF THE OFFENSE
CHARGED.  P. 221. 

(C)  NOTHING IN SEC. 346(A)(1) MAKES FRAUD AN ESSENTIAL INGREDIENT OF
THE OFFENSE OF MAKING A FALSE MATERIAL STATEMENT UNDER OATH IN A
NATURALIZATION PROCEEDING.  P. 222. 

(D)  NOTHING IN SEC. 346(A)(5) MAKES FRAUD AN ESSENTIAL INGREDIENT OF
THE OFFENSE OF AIDING SOMEONE TO COMMIT A VIOLATION OF SEC. 346(A)(1),
AND THE INSERTION IN THE INDICTMENT OF THE WORDS "PROCURED BY FRAUD"
DOES NOT CHANGE THE RESULT.  PP. 222-223. 

(E)  A CHARGE OF CONSPIRACY TO COMMIT A CERTAIN SUBSTANTIVE OFFENSE
IS NOT ENTITLED TO A LONGER STATUTE OF LIMITATIONS THAN THE CHARGE OF
COMMITTING THE OFFENSE ITSELF.  P. 223. 

(F)  THAT SEC. 37 OF THE OLD CRIMINAL CODE, NOW 18 U.S.C. (SUPP. V)
SEC. 371, ALSO APPLIES TO CONSPIRACIES TO DEFRAUD THE UNITED STATES "IN
ANY MANNER OR FOR ANY PURPOSE" DOES NOT REQUIRE A DIFFERENT RESULT AS
TO THE CHARGE THEREUNDER IN THIS CASE.  PP. 223-224. 

2.  THE SAVING CLAUSE IN SEC. 21 OF THE ACT OF JUNE 25, 1948,
CODIFYING THE CRIMINAL CODE, DOES NOT "SAVE" THE SPECIAL FIVE-YEAR
STATUTE OF LIMITATIONS OF SEC. 346(G) OF THE NATIONALITY ACT OF 1940 SO
AS TO APPLY IT TO THE VIOLATIONS OF THE LATTER ACT CHARGED IN THE
INDICTMENT.  PP. 224-227. 

BRIDGES ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

THE DISTRICT COURT DENIED PETITIONERS' MOTIONS TO DISMISS THEIR
INDICTMENTS, 86 F. SUPP.  922, AND THEY WERE CONVICTED.  THE COURT OF
APPEALS AFFIRMED, 199 F.2D 811, AND DENIED REHEARING EN BANC, 201 F.2D
254.  THIS COURT GRANTED CERTIORARI.  345 U.S. 904.  REVERSED AND
REMANDED, P. 228. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

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. 

THE ISSUES RAISED BY THE FIRST QUESTION ARE: 

1.  WHETHER THE WARTIME SUSPENSION OF LIMITATIONS ACT (FN1) HAS
SUSPENDED THE RUNNING OF THE GENERAL THREE-YEAR STATUTE OF LIMITATIONS
(FN2) IN RELATION TO THE OFFENSES CHARGED IN. 

COUNT I, UNDER THE GENERAL CONSPIRACY STATUTE.  (FN3) 

COUNT II, UNDER SEC. 346(A)(1) OF THE NATIONALITY ACT OF 1940; (FN4)
OR. 

COUNT III, UNDER SEC. 346(A)(5) OF THE NATIONALITY ACT OF 1940; (FN5)
AND. 

2.  WHETHER THE SAVING CLAUSE IN SEC. 21 OF THE ACT OF JUNE 25, 1948,
WHICH ENACTED THE PRESENT CRIMINAL CODE INTO LAW, (FN6) CONTINUED IN
EFFECT THE SPECIAL FIVE-YEAR STATUTE OF LIMITATIONS OF SEC. 346(G) OF
THE NATIONALITY ACT OF 1940 (FN7) IN RELATION TO VIOLATIONS OF SEC.
346(A) OF THAT ACT. 

FOR THE REASONS SET FORTH, WE REACH A NEGATIVE CONCLUSION ON EACH OF
THE ABOVE ISSUES. 

PETITIONER HARRY BRIDGES ENTERED THE UNITED STATES IN 1920 AS AN
IMMIGRANT SEAMAN FROM AUSTRALIA.  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. 

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. 

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: 

"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. 

"Q.  DO YOU NOW, OR HAVE YOU EVER, BELONGED TO THE COMMUNIST PARTY IN
THE UNITED STATES? 

"A.  I HAVE NOT, I DO NOT." 

HE WAS THEN ADMITTED TO CITIZENSHIP. 

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. 

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. 

THAT COUNT IS LAID UNDER THE FOLLOWING GENERAL CONSPIRACY STATUTE: 

"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."  SEC. 37 OF THE OLD CRIMINAL CODE, 35 STAT.
1096, 18 U.S.C. SEC. 88, NOW 18 U.S.C. (SUPP.  V) SEC. 371. 

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 SEC. 346(A)(1) OF THE NATIONALITY ACT OF 1940,
54 STAT. 1163, 8 U.S.C. SEC. 746(A)(1), WHICH MAKES IT A FELONY FOR ANY
PERSON: 

"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."  (FN8) 

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 SEC. 346(A)(5) OF THE NATIONALITY ACT OF 1940, 54 STAT.  1164, 8
U.S.C. SEC. 746(A)(5), WHICH MAKES IT A FELONY: 

"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: 

"A.  KNOWING THE SAME TO HAVE BEEN PROCURED BY FRAUD; ...  ."  (FN9) 

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.  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.  199 F.2D 811.  REHEARING EN BANC WAS DENIED.  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, 336
U.S. 922, AS WELL AS ITS CONFLICT IN PART WITH UNITED STATES V.
OBERMEIER, 186 F.2D 243 (C.A.2D CIR.), AND BECAUSE OF THE IMPORTANCE OF
THE ISSUES, WE GRANTED CERTIORARI, 345 U.S. 904.  (FN10) 

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. 
(FN11) 

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. 

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. 

THE WARTIME SUSPENSION OF LIMITATIONS ACT CREATES AN EXCEPTION TO A
LONG-STANDING 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.  (FN12)  IN RELATION TO A COMPARABLE
EXCEPTION STATED IN SEC. 1110(A) AS THE LIMITATION APPLICABLE UNDER THE
REVENUE ACT OF 1926, (FN13) MR. JUSTICE ROBERTS, SPEAKING FOR THE
COURT, SAID: 

"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.  (FN14)  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. 

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. 

THE PRESENT SUSPENSION ACT HAD ITS ORIGIN IN THE ACT OF AUGUST 24,
1942.  (FN15)  SEE UNITED STATES V. SMITH, 342 U.S. 225, 226-227.  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. (FN16) 

THE COMMITTEE REPORTS SHOW THAT IN 1921 CONGRESS AIMED THE PROVISO AT
THE PECUNIARY FRAUDS GROWING OUT OF WAR CONTRACTS.  (FN17)  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. 
(FN18) 

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,
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, THE COURT OF APPEALS SAID: 

"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. 

"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 81, 168 F.2D, AT 136. 

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, 336 U.S. 922.  SEE ALSO, UNITED STATES V.
COHN, 270 U.S. 339.  (FN19) 

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. 

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; UNITED STATES V. MCELVAIN, 272
U.S. 633; UNITED STATES V. NOVECK, 271 U.S. 201.  SEE ALSO, BRAVERMAN
V. UNITED STATES, 317 U.S. 49, 54-55, AND UNITED STATES V. COHN, 270
U.S. 339. 

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 SEC. 346(A)(1) MAKES
FRAUD AN ESSENTIAL INGREDIENT OF THE OFFENSE OF MAKING A FALSE MATERIAL
STATEMENT UNDER OATH IN A NATURALIZATION PROCEEDING. 

LIKEWISE, IN COUNT III, THE AIDING OF SOMEONE TO COMMIT THAT OFFENSE,
IN VIOLATION OF SEC. 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. 

SO IT IS WITH COUNT I. A CHARGE OF CONSPIRACY TO COMMIT A CERTAIN
SUBSTANTIVE OFFENSE IS NOT ENTITLED TO A LONGER STATUTE OF LIMITATIONS
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. 

"THE LANGUAGE OF THE PROVISO CANNOT REASONABLY BE READ TO INCLUDE ALL
CONSPIRACIES AS DEFINED BY SEC. 37.  THE GENERAL CONSPIRACY SECTION OF
THE OLD CRIMINAL CODE, NOW 18 U.S.C. (SUPP. V) SEC. 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. 

THE GOVERNMENT CONTENDS THAT THE GENERAL CONSPIRACY ACT (FN20) 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
SEC. 346(A)(1) OR SEC. 346(A)(5) AS CHARGED IN COUNTS II AND III. 
COUNT I ACTUALLY CHARGES THAT PETITIONERS 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. 

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, 186 F.2D 243, 256-257, WITH RESPECT TO OFFENSES UNDER THE
STATUTE INVOLVED IN COUNT II OF THE INSTANT INDICTMENT. 

II.  THE SAVING CLAUSE IN SEC. 21 OF THE ACT OF JUNE 25, 1948, DOES
NOT "SAVE" THE SPECIAL FIVE-YEAR STATUTE OF LIMITATIONS OF THE
NATIONALITY ACT OF 1940 SO AS TO APPLY IT TO THE VIOLATIONS OF THAT ACT
CHARGED IN COUNTS II AND III. 

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 SEC.
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 SEC. 346(G) OF THAT ACT.  (FN21)  IT APPEARS, HOWEVER,
THAT SEC. 346(A-H) WAS EXPRESSLY REPEALED, AS OF SEPTEMBER 1, 1948, BY
SEC. 21 OF THE ACT CLAUSE, THAT REPEALING SECTION READS AS FOLLOWS:
CLAUSE, THAT REPEALING SECTION READS AS FOLLOWS; 

"SEC. 21.  THE SECTIONS OR PARTS THEREOF OF THE REVISED STATUTES OR
STATUTES AT LARGE ENUMERATED IN THE FOLLOWING SCHEDULE ARE HEREBY
REPEALED.  (FN22)  ANY RIGHTS OR LIABILITIES NOW EXISTING UNDER SUCH
STAT. 862. 

BY SUCH REPEAL OF SEC. 346(G), THE GENERAL THREE-YEAR STATUTE OF
LIMITATIONS BECAME APPLICABLE.  18 U.S.C. (SUPP. V) SEC. 3282.  (FN23)
THREE YEARS HAVING EXPIRED BEFORE THE INDICTMENT WAS FOUND, SEC. 3282
BARS THE INSTANT INDICTMENT.  THE GOVERNMENT, HOWEVER, CONTENDS THAT
THE ABOVE-QUOTED SAVING CLAUSE IN SEC. 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 SEC. 346(G).  THIS ISSUE WAS PRESENTED TO THE COURT OF
APPEALS IN THE INSTANT CASE AND WAS DECIDED AGAINST THE GOVERNMENT. 
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 SEC. 21 DID NOT KEEP THE
SPECIAL FIVE-YEAR LIMITATION ALIVE AFTER SEPTEMBER 1, 1948.  (FN24) 

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) SEC. 3282 WHICH SAYS:

"IN THE CONSOLIDATION OF THESE SECTIONS THE 5-YEAR PERIOD OF
LIMITATION FOR VIOLATIONS OF THE NATIONALITY CODE, PROVIDED FOR IN SAID
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." 

TO ADOPT THE INTERPRETATION PROPOSED BY THE GOVERNMENT WOULD PRODUCE
THE SITUATION THAT OFFENSES COMMITTED IN AUGUST, 1948, WOULD BE
INDICTABLE UNTIL AUGUST, 1953, WHEREAS 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. 

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,
SEC. 5598 PRESERVED "ALL OFFENSES COMMITTED, AND ALL PENALTIES OR
FORFEITURES" BUT, NEVERTHELESS, SEC. 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  ...  ."  (FN25)  THE 1909 CRIMINAL CODE CONTAINED SIMILAR
PROVISIONS IN SECS.  343 AND 344.  35 STAT. 1159.  IN 1933, WHEN THE
REVISED STATUTES WERE REEXAMINED AND OBSOLETE SECTIONS (INCLUDING SEC.
5598) WERE REPEALED, SEC. 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. 

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 SEC. 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.  REVERSED AND
REMANDED. 

FN1  18 U.S.C. (SUPP. V) SEC. 3287. 

FN2  18 U.S.C. (SUPP. V) SEC. 3282. 

FN3  SEC. 37 OF THE CRIMINAL CODE, 35 STAT. 1096, 18 U.S.C. SEC. 88,
NOW 18 U.S.C.  (SUPP. V) SEC. 371. 

FN4  54 STAT. 1163, 8 U.S.C. SEC. 746(A)(1), NOW 18 U.S.C. (SUPP. V)
SEC. 1015(A). 

FN5  54 STAT. 1164, 8 U.S.C. SEC. 746(A)(5), NOW 18 U.S.C. (SUPP. V)
SEC. 1425. 

FN6  62 STAT. 862. 

FN7  54 STAT. 1167, 8 U.S.C. SEC. 746(G). 

FN8  SECTION 346(A) WAS REPEALED BY SEC. 21 OF THE ACT OF JUNE 25,
1948, 62 STAT. 862, 868.  SIMULTANEOUSLY, SEC. 346(A)(1) WAS
SUBSTANTIALLY REENACTED IN 18 U.S.C. (SUPP. V) SEC. 1015(A).  FOR THE
EFFECT, IF ANY, OF THE SAVING CLAUSE IN SEC. 21 UPON THE STATUTE OF
LIMITATIONS RELATING TO SEC. 346(A), SEE PP. 224-227, INFRA. 

FN9  SEE NOTE 8, SUPRA, AS TO REPEAL OF SEC. 346(A).  SIMULTANEOUSLY,
SEC. 346(A)(5) WAS SUBSTANTIALLY REENACTED IN 18 U.S.C. (SUPP. V) SEC.
1425. 

FN10  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), 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." 

FN11  "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) SEC. 3282. 

FN12  1 STAT. 119; R.S. SEC. 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. SEC. 1043; 53 STAT. 1198; 18
U.S.C. (SUPP. V) SEC. 3281. 

FN13  44 STAT. 114-115, 18 U.S.C. (1925 ED., SUPP. V) SEC. 585. 

FN14  "  ...  THE PURPOSE 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. 

FN15  "  ...  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) SEC. 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. 

FN16  "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. 

FN17  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 AS 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. 

FN18  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. 

FN19  HAAS V. HENKEL, 216 U.S. 462, AND HAMMERSCHMIDT V. UNITED
STATES, 265 U.S. 182, 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 SEC. 37 OF THE OLD CRIMINAL CODE, 35 STAT.
1096, NOW SEC. 371 OF THE NEW CRIMINAL CODE, 18 U.S.C. (SUPP. V).  SEE
ALSO, UNITED STATES V. GILLILAND, 312 U.S. 86.  THEY DO NOT CONTROL THE
INTERPRETATION OF THE PROVISIONS IN THE WARTIME SUSPENSION OF
LIMITATIONS ACT DISCUSSED IN THIS OPINION. 

FN20  SEC. 37 OF THE OLD CRIMINAL CODE, 35 STAT. 1096, 18 U.S.C. SEC.
88, NOW 18 U.S.C.  (SUPP. V) SEC. 371, SEE P. 213, SUPRA. 

FN21  "(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. SEC. 746(G). 

FN22  IN THAT SCHEDULE OF REPEALED SECTIONS, AT 62 STAT. 868, ARE
SECS. 346(A-H), (1), AND 347 OF THE NATIONALITY ACT OF 1940, ALSO
IDENTIFIED AS FROM CHAPTER 876, 54 STAT. 1163-1168, APPROVED OCTOBER
14, 1940. 

FN23  SEE NOTE 11, SUPRA. 

FN24  IN UNITED STATES V. SMITH, 342 U.S. 225, 226-227, N. 1, WE
ASSUMED, WITHOUT DECIDING, THAT THIS RESERVATION HAD NO EFFECT ON THE
RUNNING OF A STATUTE OF LIMITATIONS. 

FN25  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) SEC. 109; HALLOWELL V. COMMONS, 239 U.S. 506;
HERTZ V. WOODMAN, 218 U.S. 205, 218; GREAT NORTHERN R. CO. V. UNITED
STATES, 208 U.S. 452. 

MR. JUSTICE JACKSON AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

THE LIMITATION FOR PROSECUTIONS UNDER THE SECOND CLAUSE OF 18 U.S.C.
SEC. 371, CONSPIRACY TO DEFRAUD THE UNITED STATES, FORMERLY FIXED AT
THREE YEARS BY 18 U.S.C. SEC. 3282, LIMITATION FOR OFFENSES NOT
CAPITAL, IS SUSPENDED FOR US BY THE WARTIME SUSPENSION OF LIMITATIONS
ACT, 18 U.S.C. SEC. 3287.  THE CODE SECTIONS SO FAR AS APPLICABLE
APPEAR BELOW.  (FN1)  AS STATED IN THE COURT'S OPINION, THE INDICTMENT
UNDER SEC. 371 WAS BROUGHT MORE THAN THREE YEARS AFTER THE ALLEGED
OFFENSE BUT WITHIN TIME IF THE WARTIME SUSPENSION APPLIES.  THE
APPLICABILITY OF THAT SECTION, SEC. 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 SEC. 3287. 

AN INDICTMENT UNDER SEC. 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.  (FN2) 

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, SEC.  3287,
"INVOLVING FRAUD" "BY CONSPIRACY." 

WE SEE NOTHING IN THE LEGISLATIVE HISTORY OF SEC. 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, (FN3) ALIEN PROPERTY, (FN4)
ADMINISTRATION OF PRICES AND WAGES (FN5) AND THE ALLOTMENT OF SCARCE
MATERIAL, (FN6) AS WELL AS THE IMMIGRATION AND NATIONALITY ACTS, 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. 

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 "LONGSTANDING CONGRESSIONAL 'POLICY OF REPOSE.'"  OF
COURSE, STATUTES OF LIMITATION ARE STATUTES OF REPOSE.  BUT OUR PUBLIC
POLICY IS FIXED BY CONGRESS, NOT BY THE COURTS.  (FN7)  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. 

NOR CAN WE ACCEPT THE COURT'S RELIANCE ON MARZANI V. UNITED STATES,
83 U.S. APP. D.C.  78, 82, 168 F.2D 133, 137, AS A SOUND PRECEDENT FOR
CONSTRUING THE WARTIME SUSPENSION 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 "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 81, 168 F.2D.  AT 136. 
MARZANI WAS INDICTED UNDER THE FALSE CLAIMS ACT.  (FN8) 

THE CASES RELIED UPON FOR THE FIRST POINT ARE UNITED STATES V.
NOVECK, 271 U.S. 201; UNITED STATES V. MCELVAIN, 272 U.S. 633; AND
UNITED STATES V. SCHARTON, 285 U.S. 518.  NOVECK'S CASE HELD THAT AN
INDICTMENT FOR PERJURY IN AN INCOME TAX RETURN WAS BARRED, DESPITE A
SUSPENSION STATUTE MUCH LIKE SEC. 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'S AND HELD THAT FRAUD ON THE UNITED
STATES WAS NOT AN INGREDIENT OF EVADING A TAX BY FALSE STATEMENTS. 

UNDER THE SECOND POINT, THE COURT OF APPEALS RELIED UPON UNITED
STATES V. GILLILAND, 312 U.S. 86.  THERE THIS COURT HELD THAT THE 1934
AMENDMENT TO CRIMINAL CODE SEC. 35, 48 STAT. 996, ENLARGED SEC. 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 90.  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, 347, WAS MADE INAPPLICABLE TO THE
GILLILAND DECISION MEANT THAT DEFRAUDING THE UNITED STATES IN A
FINANCIAL SENSE IS NOT AN ESSENTIAL INGREDIENT UNDER THE FALSE CLAIMS
ACT.  THEREFORE THE SUSPENSION ACT DID NOT APPLY.  CF. UNITED STATES V.
GOTTFRIED, 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 NOT 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 SEC. 371.  WE
DO NOT THINK MARZANI ADDS STRENGTH TO THE COURT'S POSITION THAT THE
SUSPENSION ACT APPLIES ONLY TO FINANCIAL FRAUD.    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.    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 SEC. 371,
COVERS NONPECUNIARY OR NONPROPERTY FRAUDS.  THIS HAS BEEN TRUE SINCE
HAAS V. HENKEL, 216 U.S. 462, 479.  (FN9)  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.

AS COUNT I DESCRIBES THE SUBSTANTIVE OFFENSE OF CONSPIRACY TO DEFRAUD
THE UNITED STATES, WE DO NOT AGREE WITH THE COURT'S STATEMENT THAT:

"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." 

TO PROVE THE SUBSTANTIVE OFFENSE OF CONSPIRACY UNDER SEC. 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."  P.
479. 

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, 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.  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.)  SECS.  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.A. SEC. 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.  CF. CARLSON V. LANDON,
342 U.S. 524, 536, N. 22. 

AS OUR VIEWS HAVE NOT PREVAILED AS TO COUNT I, WE FORBEAR TO EXPRESS
ANY VIEWS AS TO COUNTS II AND III. 

FN1  18 U.S.C. SEC. 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., SEC. 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., SEC. 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." 

FN2  FALTER V. UNITED STATES, 23 F.2D 420, 423-424; MILLER V. UNITED
STATES, 24 F.2D 353, 360; UNITED STATES V. HOLT, 108 F.2D 365, 368. 
CF. UNITED STATES V. MANTON, 107 F.2D 834, 838-839, A CASE IN WHICH TWO
JUSTICES OF THIS COURT SAT AS CIRCUIT JUSTICES. 

FN3  SELECTIVE SERVICE ACT OF 1948, 62 STAT. 604, 50 U.S.C. APP.
SECS. 321, 451-470, 1001-1017. 

FN4  TRADING WITH THE ENEMY ACT, 40 STAT. 411, AS AMENDED, 55 STAT.
839, 50 U.S.C. APP.  SEC. 1 ET SEQ. 

FN5  DEFENSE PRODUCTION ACT OF 1950, 64 STAT. 798, AS AMENDED, 65
STAT. 131, 66 STAT. 298, 50 U.S.C. APP. SEC. 2061 ET SEQ., SECS. 2101
2110. 

FN6  IBID., SECS. 1912, 2072, 2073. 

FN7  HURD V. HODGE, 334 U.S. 24, 34-35. 

FN8  18 U.S.C. (1946 ED.)  SEC.  80, SUBSTANTIALLY REENACTED, 18
U.S.C. SEC. 287. 

FN9  SEE ALSO UNITED STATES V. COHN, 270 U.S. 339, 346; HAMMERSCHMIDT
V. UNITED STATES, 265 U.S. 182, 188; CF. UNITED STATES V. LEPOWITCH,
318 U.S. 702. 
..END :






















UNITED STATES V. GRAINGER 346 U.S. 235 


NO. 634.  ARGUED MAY 4-5, 1953 - DECIDED JUNE 15, 1953 - REVERSED AND
REMANDED. 


1.  THE RUNNING OF THE GENERAL THREE-YEAR STATUTE OF LIMITATIONS ON
FEDERAL PROSECUTIONS FOR CRIMES, NOW 18 U.S.C. (SUPP. V) SEC. 3282, WAS
SUSPENDED BY THE WARTIME SUSPENSION OF LIMITATIONS ACT, 18 U.S.C.
(SUPP. V) SEC. 3287, AS TO VIOLATIONS, IN 1945 AND 1946, OF THE FALSE
CLAIMS CLAUSE OF THE FALSE CLAIMS ACT, NOW 18 U.S.C. (SUPP. V) SEC.
287.  PP. 240-244. 

(A)  THE OFFENSES CHARGED HERE OF ATTEMPTING 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,
ARE OFFENSES OF A PECUNIARY NATURE.  PP. 240-241. 

(B)  OFFENSES WHICH OCCURRED IN 1945 OR 1946, PRECEDING THE
PRESIDENT'S PROCLAMATION OF DECEMBER 31, 1946, DECLARING THAT THE
HOSTILITIES OF WORLD WAR II TERMINATED ON THAT DAY, COME WITHIN THE
PERIOD TO WHICH THE SUSPENSION ACT APPLIES.  P. 241. 

(C)  FRAUD UPON THE UNITED STATES IS AN ESSENTIAL INGREDIENT OF
VIOLATIONS OF THE FALSE CLAIMS CLAUSE OF THE FALSE CLAIMS ACT, 18
U.S.C. (SUPP. V) SEC. 287.  PP. 241-243. 

(D)  IN THE WARTIME SUSPENSION OF LIMITATIONS ACT, THE PHRASE
"INVOLVING FRAUD  ...  IN ANY MANNER" MAKES THE ACT APPLICABLE TO
OFFENSES WHICH ARE FAIRLY IDENTIFIABLE AS THOSE IN WHICH FRAUD IS AN
ESSENTIAL INGREDIENT, BY WHATEVER WORDS THEY BE DEFINED; IT DOES NOT
LIMIT THE APPLICATION OF THE ACT TO SUCH OFFENSES AS CONGRESS HAS
DENOMINATED AS "FRAUDS" BY USING THAT VERY WORD OR ONE OF ITS
DERIVATIVES.  THE SAME REASONING APPLIES TO CONSPIRACIES TO COMMIT SUCH
OFFENSES.  PP. 243-244. 

2.  THE WARTIME SUSPENSION OF LIMITATIONS ACT HAD THE EFFECT OF
EXTENDING THROUGH 1952 THE TIME FOR THE PROSECUTION OF THE OFFENSES TO
WHICH IT APPLIED.  PP. 244-246. 

3.  IN RELATION TO THOSE OFFENSES HERE INVOLVED WHICH WERE COMMITTED
IN 1945 AND 1946, DURING THE PERIOD OF SUSPENSION, THE GENERAL THREE
YEAR LIMITATION PRESCRIBED BY 18 U.S.C.  (SUPP. V) SEC. 3282 BEGAN TO
RUN FOR THE FIRST TIME ON JANUARY 1, 1950, AND EXPIRED DECEMBER 31,
1952.  PP. 246-247. 

4.  THE CODIFICATION OF THE CRIMINAL CODE, JUNE 25, 1948, EFFECTIVE
SEPTEMBER 1, 1948, DID NOT CHANGE THE SITUATION RESPECTING THE
EXTENSION THROUGH 1952 OF THE TIME FOR PROSECUTING THE OFFENSES TO
WHICH THE WARTIME SUSPENSION OF LIMITATIONS ACT APPLIED.  PP. 247-248. 

5.  THE WARTIME SUSPENSION OF LIMITATIONS ACT IS APPLICABLE TO THE
INDICTMENTS HERE INVOLVED FOR OFFENSES COMMITTED IN 1945 AND 1946 AND
THE UNITED STATES COULD THUS PROSECUTE THEM IN 1952, EXCEPT THAT (1)
THIS CONCLUSION DOES NOT APPLY TO ANY OVERT ACT ALLEGED IN NO. 636 TO
HAVE BEEN COMMITTED IN 1947, AND (2) THIS CONCLUSION DOES NOT APPLY TO
OVERT ACTS SET FORTH IN PARAGRAPHS 2, 3, AND 4, UNDER COUNT TWO OF THE
INDICTMENT IN NO. 636, WHICH ARE NOT EXPLICIT ENOUGH TO SHOW THAT THE
ISSUANCE OR ENDORSEMENT OF CERTAIN CHECKS THERE DESCRIBED CONSTITUTED
AN ATTEMPT TO DEFRAUD THE UNITED STATES.  PP. 236-248; P. 237, N. 1. 

UNITED STATES V. GRAINGER. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA.* 

*TOGETHER WITH NO. 635, UNITED STATES V. CLAVERE ET AL., AND NO. 636,
UNITED STATES V. CLAVERE ET AL., BOTH ALSO ON APPEAL FROM THE SAME
COURT. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THESE CASES WERE ARGUED IMMEDIATELY FOLLOWING NO. 548, BRIDGES V.
UNITED STATES, ANTE, P. 209.  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.  (FN1) 

THE PRINCIPAL QUESTIONS HERE ARE:  (1) WHETHER THE WARTIME SUSPENSION
OF LIMITATIONS ACT (FN2) SUSPENDED THE RUNNING OF THE GENERAL THREE
YEAR STATUTE OF LIMITATIONS (FN3) AS TO VIOLATIONS OF THE FALSE CLAIMS
CLAUSE OF THE FALSE CLAIMS ACT, (FN4) 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. 

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.  (FN5) 

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. 

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 CORPORATION (FN6) 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.  (FN7) 

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: 

"ACCORDINGLY, THE COURT HOLDS THAT, AS TO ALL THREE INDICTMENTS, THE
THREE-YEAR STATUTE OF LIMITATIONS FIXED BY 18 U.S.C. SECTION 582 AND
ITS SUCCESSOR, 18 U.S.C. 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." 

THE UNITED STATES APPEALED DIRECTLY TO THIS COURT, UNDER 18 U.S.C.
(SUPP. V) SEC. 3731.  (FN8) 

1.  THE RUNNING OF THE GENERAL THREE-YEAR STATUTE OF LIMITATIONS
(FN9) WAS SUSPENDED BY THE WARTIME SUSPENSION OF LIMITATIONS ACT (FN10)
AS TO VIOLATIONS, IN 1945 AND 1946, OF THE FALSE CLAIMS CLAUSE OF THE
FALSE CLAIMS ACT.  (FN11) 

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. 

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.  (FN12)  THE
OFFENSES THUS COME WITHIN THE PERIOD TO WHICH THE SUSPENSION ACT
APPLIES.  UNITED STATES V. SMITH, 342 U.S. 225. 

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: 

"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. SEC. 80, NOW 18 U.S.C. (SUPP. V)
SEC. 287. 

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 SUSPENSION
ACT IS DIRECTED. 

THE SUSPENSION ACT PROVIDES 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  ...  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) SEC.
3287. 

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.  (FN13)  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.  (FN14)
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 SEC. 287 AND THE LATTER IN SEC. 1001 OF 18 U.S.C.
(SUPP. V). 

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. 

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: 

"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.  AND AS THE
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." 

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. 

WE BELIEVE THAT CONGRESS SOUGHT BY ITS PHRASE "INVOLVING FRAUD  ...
IN ANY MANNER" (FN15) TO MAKE THE SUSPENSION ACT APPLICABLE TO 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  ...  ."  (FN16)  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. 

2.  THE WARTIME SUSPENSION OF LIMITATIONS ACT EXTENDED THE TIME FOR
FINDING THE INDICTMENTS THROUGH 1952. 

A. THE SUSPENSION ACT HAD THE EFFECT OF EXTENDING THROUGH 1952 THE
TIME FOR THE PROSECUTION OF THE OFFENSES TO WHICH IT APPLIED. 

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: 

"  ...  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. 

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. 

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: 

"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  ...  ."  58 STAT.
667. 

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. 

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.
SEC. 590A. 

WHEN THE PRESIDENT, DECEMBER 31, 1946, PROCLAIMED THE TERMINATION OF
HOSTILITIES OF WORLD WAR II, 3 CFR, 1946 SUPP., 77-78, THIS
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) SEC. 3282 BEGAN TO RUN FOR THE FIRST TIME ON JANUARY 1, 1950,
AND EXPIRED DECEMBER 31, 1952.   UNITED STATES V. SMITH, 342 U.S. 225,
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: 

"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."  P.
231. 

THIS ISSUE WAS BEFORE THE COURT IN NO. 527, UNITED STATES V. KLINGER,
WHICH THIS DAY IS AFFIRMED BY AN EVENLY DIVIDED COURT, 345 U.S. 979. 
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. 

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 SEC.
28 OF CHAPTER 479, 58 STAT. 781, AND AS 18 U.S.C. SEC. 590A.  62 STAT.
862, 868.  AT THE SAME TIME, CONGRESS SUBSTANTIALLY REENACTED THE
SUSPENSION ACT AS 18 U.S.C. (SUPP. V) SEC. 3287.  62 STAT. 828.  THE
APPELLEES POINT OUT THAT THE SAVING CLAUSE IN SEC. 21 OF THE ACT OF
JUNE 25, 1948, 62 STAT. 862, 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
SEC. 3287, JUNE 25, 1948, EFFECTIVE SEPTEMBER 1, 1948, LIKE THE
REENACTMENT OF THE GENERAL THREE-YEAR STATUTE OF LIMITATIONS AS SEC.
3282, CARRIED WITH IT THE PURPOSE OF THE CODIFICATION.  THAT PURPOSE
MAKES SECS. 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. 

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. 
REVERSED AND REMANDED. 

FN1  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, 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. 

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 OR 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. 

FN2  18 U.S.C. (SUPP. V) SEC. 3287. 

FN3  18 U.S.C. (SUPP. V) SEC. 3282. 

FN4  SEC. 35(A) OF THE CRIMINAL CODE, 52 STAT. 197, 18 U.S.C. SEC.
80, NOW 18 U.S.C. (SUPP. V) SEC. 287. 

FN5  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.
SECS. 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) SECS. 714-714O. 

FN6  SEC. 37 OF THE CRIMINAL CODE, 35 STAT. 1096, 18 U.S.C. SEC. 88,
NOW 18 U.S.C. (SUPP. V) SEC. 371.  SEE ALSO, 52 STAT. 197, 18 U.S.C.
SEC. 83, NOW 18 U.S.C. (SUPP. V) SEC. 286. 

FN7  SEE NOTE 1, SUPRA. 

FN8  "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)
SEC. 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; UNITED STATES V. CURTISS-WRIGHT
CORP., 299 U.S. 304.  SEE ALSO, UNITED STATES V. HARK, 320 U.S. 531,
536; UNITED STATES V. GOLDMAN, 277 U.S. 229, 236-237; UNITED STATES V.
BARBER, 219 U.S. 72, 78; AND UNITED STATES V. KISSEL, 218 U.S. 601,
606. 

FN9  "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) SEC. 3282. 

FN10  "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) SEC. 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. SEC. 590A. 

FN11  52 STAT. 197, 18 U.S.C. SECS. 80, 83, 84, 85.  IN THE
CODIFICATION OF 1948, SEC. 80 WAS SUBDIVIDED BY PLACING ITS FALSE
CLAIMS CLAUSE IN SEC. 287, AND ITS FALSE STATEMENT CLAUSE IN SEC. 1001,
OF 18 U.S.C. (SUPP. V).  THE SPECIAL CONSPIRACY CLAUSE, FOUND IN SEC.
83, BECAME SEC. 286 IN SUPP. V. 

FN12  3 CFR, 1946 SUPP., 77-78. 

FN13  UNITED STATES V. SCHARTON, 285 U.S. 518; UNITED STATES V.
MCELVAIN, 272 U.S. 633; UNITED STATES V. NOVECK, 271 U.S. 201. 

FN14  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, 336 U.S. 922,
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. SEC. 80, NOW 18 U.S.C. (SUPP.
V) SEC. 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. 

FN15  18 U.S.C. (SUPP. V) SEC. 3287. 

FN16  52 STAT. 197. 

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, 199 F.2D 645, WOULD AFFIRM THE DISTRICT COURT IN
DISMISSING THESE INDICTMENTS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











BARROWS V. JACKSON 346 U.S. 249 


NO. 517.  ARGUED APRIL 28-29, 1953 - DECIDED JUNE 15, 1953 - 112 CAL.
APP. 2D 534, 247 P.2D 99, AFFIRMED. 


THE ENFORCEMENT OF A COVENANT FORBIDDING USE AND OCCUPANCY OF REAL
ESTATE BY NON-CAUCASIANS, BY AN ACTION AT LAW IN A STATE COURT TO
RECOVER DAMAGES FROM A CO-COVENANTOR FOR A BREACH OF THE COVENANT, IS
BARRED BY THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION.  PP.
251-260. 

(A)  THE ACTION OF A STATE COURT IN THUS SANCTIONING A RACIAL
RESTRICTIVE COVENANT WOULD CONSTITUTE STATE ACTION WITHIN THE
PROHIBITION OF THE FOURTEENTH AMENDMENT.  P. 254. 

(B)  STATE ACTION IN ALLOWING DAMAGES FOR BREACH OF A COVENANT NOT TO
PERMIT NON-CAUCASIANS TO USE AND OCCUPY THEIR PROPERTY WOULD DEPRIVE
SUCH NON-CAUCASIANS, UNIDENTIFIED BUT IDENTIFIABLE, OF EQUAL PROTECTION
OF THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT.  P. 254. 

(C)  THE PRINCIPLE THAT A PERSON CANNOT CHALLENGE THE
CONSTITUTIONALITY OF A STATUTE UNLESS HE SHOWS THAT HE HIMSELF IS
INJURED BY ITS OPERATION 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.  PP. 254-256. 

(D)  UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE, THE REASONS WHICH
UNDERLIE THE RULE DENYING STANDING TO RAISE ANOTHER'S CONSTITUTIONAL
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.  P. 257. 

(E)  THE PRINCIPLE THAT THE RIGHT TO EQUAL PROTECTION OF THE LAWS IS
A "PERSONAL" RIGHT, GUARANTEED TO THE INDIVIDUAL RATHER THAN TO GROUPS
OR CLASSES, IS NOT HERE VIOLATED, SINCE IT IS NOT NON-CAUCASIANS AS A
GROUP WHOSE RIGHTS ARE ASSERTED BY THE DEFENDANT IN THE DAMAGES ACTION,
BUT THE RIGHTS OF PARTICULAR NON-CAUCASIAN WOULD-BE USERS OF RESTRICTED
LAND.  PP. 259-260. 

(F)  THE PROVISION OF ART. I, SEC. 10 OF THE FEDERAL CONSTITUTION,
THAT "NO STATE SHALL  ...  PASS ANY  ...  LAW IMPAIRING THE OBLIGATION
OF CONTRACTS," IS NOT VIOLATED BY THE REFUSAL OF A STATE COURT TO
ENFORCE A RACIAL RESTRICTIVE COVENANT, SINCE THAT PROVISION IS DIRECTED
AGAINST LEGISLATIVE ACTION ONLY, NOT AGAINST THE JUDGMENTS OF COURTS. 
P. 260. 

(G)  THE PLAINTIFFS IN AN ACTION FOR DAMAGES FOR BREACH OF A RACIAL
RESTRICTIVE COVENANT ARE NOT DENIED DUE PROCESS AND EQUAL PROTECTION OF
THE LAWS BY THE STATE COURT'S REFUSAL TO ENFORCE THE COVENANT, SINCE
THE CONSTITUTION CONFERS UPON NO INDIVIDUAL THE RIGHT TO DEMAND ACTION
BY THE STATE WHICH WOULD RESULT IN THE DENIAL OF EQUAL PROTECTION OF
THE LAWS TO OTHERS.  P. 260. 

BARROWS ET AL. V. JACKSON. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

PETITIONERS SUED RESPONDENT IN A CALIFORNIA STATE COURT TO RECOVER
DAMAGES FOR AN ALLEGED BREACH OF A RACIAL RESTRICTIVE COVENANT.  THE
TRIAL COURT SUSTAINED A DEMURRER TO THE COMPLAINT.  THE DISTRICT COURT
OF APPEAL AFFIRMED.  112 CAL. APP. 2D 534, 247 P.2D 99.  THE STATE
SUPREME COURT DENIED A HEARING.  THIS COURT GRANTED CERTIORARI.  345
U.S. 902.  AFFIRMED, P. 260. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THIS COURT HELD IN SHELLEY V. KRAEMER, 334 U.S. 1, 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? 

PETITIONERS (FN1) 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: 

"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." 

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 APPEAL 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, 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, 93 F. SUPP.
604 (DIST. COL.).  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 OKLA. 366, 237 P.2D 1017. 

THE TRIAL COURT IN THE CASE HERE HELD THAT A PARTY TO A COVENANT
RESTRICTING USE AND OCCUPANCY (FN2) 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: 

"WE CONCLUDE, THEREFORE, THAT THE RESTRICTIVE AGREEMENTS STANDING
ALONE CANNOT BE REGARDED AS VIOLATIVE 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. 

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 OUT 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. 

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. 

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? 

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 (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 (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 (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.  (FN3) 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. 

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; JEFFREY MFG.
CO. V. BLAGG, 235 U.S. 571, 576; NEW YORK EX REL. HATCH V. REARDON, 204
U.S. 152, 160-161; SEE ALSO TENNESSEE ELEC.  POWER CO. V. TENNESSEE
VALLEY AUTHORITY, 306 U.S. 118, 144.  (FN4)  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.  NEW
YORK EX REL. HATCH V. REARDON, SUPRA, AT 160-161; WUCHTER V. PIZZUTTI,
276 U.S. 13, 26-28 (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. 

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'N, 184 CAL. 26, 192 P. 1021. 

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, 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, AT 534-535.  IN SHORT, THE SCHOOLS
WERE PERMITTED TO ASSERT IN DEFENSE OF THEIR PROPERTY RIGHTS THE
CONSTITUTIONAL RIGHTS OF THE PARENTS AND GUARDIANS.  SEE ALSO JOINT
ANTI-FASCIST REFUGEE COMM. V. MCGRATH, SUPRA, AT 141, 153-154; COLUMBIA
BROADCASTING SYSTEM V. UNITED STATES, 316 U.S. 407, 422-423; HELVERING
V. GERHARDT, 304 U.S. 405; TRUAX V. RAICH, 239 U.S. 33; UNITED STATES
V. RAILROAD CO., 17 WALL.  322; QUONG HAM WAH CO. V. INDUSTRIAL ACC. 
COMM'N, SUPRA; CF. UNITED STATES V. JEFFERS, 342 U.S. 48, 52; FEDERAL
COMMUNICATIONS COMM'N V. SANDERS BROTHERS RADIO STATION, 309 U.S. 470;
WUCHTER V. PIZZUTTI, SUPRA. 

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; OR THAT COULD NOT BE ENFORCED IN A
FEDERAL JURISDICTION BECAUSE SUCH A COVENANT WOULD BE CONTRARY TO
PUBLIC POLICY: 

"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,
334 U.S. 24, 35-36.  SEE ALSO ROBERTS V. CURTIS, SUPRA.    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. 

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-CAR 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.  SEE
SWEATT V. PAINTER, 339 U.S. 629, 635.  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, AT 535.  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. 

IT IS CONTENDED BY PETITIONERS THAT FOR CALIFORNIA COURTS TO REFUSE
TO ENFORCE THIS COVENANT IS TO IMPAIR THE OBLIGATION OF THEIR
CONTRACTS.  ARTICLE I, SEC. 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. 

"IT HAS BEEN SETTLED BY A LONG LINE OF DECISIONS, THAT THE PROVISION
OF SEC. 10, ARTICLE I, 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. 

IT IS FINALLY CONTENDED THAT PETITIONERS ARE DENIED DUE PROCESS AND
EQUAL PROTECTION OF THE LAWS BY THE FAILURE TO ENFORCE THE COVENANT. 
THE ANSWER TO THAT PROPOSITION IS STATED BY THE COURT IN SHELLEY,
SUPRA, IN THESE WORDS: 

"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. 

THE JUDGMENT IS AFFIRMED. 

FN1  PETITIONER PIKAAR WAS NOT A SIGNER OF THE COVENANT BUT IS
SUCCESSOR IN INTEREST OF A SIGNER. 

FN2  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. 

FN3  SEE FROTHINGHAM V. MELLON, 262 U.S. 447, 486-489 (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 (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 (DOCTOR SOUGHT A DECLARATORY JUDGMENT THAT A STATE STATUTE
WOULD DEPRIVE CERTAIN OF HIS PATIENTS OF THEIR LIVES WITHOUT DUE
PROCESS OF LAW); TYLER V. JUDGES OF THE COURT OF REGISTRATION, 179 U.S.
405, 410 (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; ALABAMA POWER CO. V. ICKES, 302 U.S. 464, 478-480; CF.
MCCABE V. ATCHISON, T.&S.F.R. CO., 235 U.S. 151, 162-164 (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. 

FN4  CF. GOLDSTEIN V. UNITED STATES, 316 U.S. 114; HALE V. HENKEL,
201 U.S. 43, 69-70, 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. 

MR. JUSTICE REED AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. CHIEF JUSTICE VINSON, DISSENTING. 

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. 

THE MAJORITY SEEMS TO RECOGNIZE, ALBEIT IGNORES, A PROPOSITION WHICH
I THOUGHT WAS MADE PLAIN IN THE SHELLEY CASE.  (FN1)  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. 

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."  (FN2) 

THIS CASE IS DIFFERENT. 

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. 

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. 

I TURN, FIRST, TO THE MATTER OF OUR POWER TO DECIDE THIS CASE.  THE
MAJORITY STATES THE ISSUE: 

"  ...  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?" 

LOGICALLY THIS ISSUE SHOULD BE MET WHERE SUCH AN ISSUE IS USUALLY MET
- AT THE "THRESHOLD"; (FN3) 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. 

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 PRINCIPLE (FN4) 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 WHO HAS STANDING TO RAISE THE ISSUE.  (FN5)  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.  (FN6) 

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-CAUCASIONS - 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.   (FN7) 

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 CARRIES 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. 

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.    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. 

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. 

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. 

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.  (FN8) 

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. 

FN1  SHELLEY V. KRAEMER, 334 U.S. 1 (1948). 

FN2  THE STATE ACTION WHICH WE STRUCK DOWN WAS EPITOMIZED IN THIS
LANGUAGE, 334 U.S., AT 19: 

"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  ...  ." 

FN3  COMPARE MONTGOMERY BUILDING & CONSTRUCTION TRADES COUNCIL V.
LEDBETTER ERECTION CO., 344 U.S. 178, 179 (1952); UNITED PUBLIC WORKERS
V. MITCHELL, 330 U.S. 75, 86 (1947). 

FN4  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, MR. 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, 6 WHEAT.  264,
405 (1821). 

AND SEE THE DISCUSSION OF THIS PRINCIPLE AND ITS RAMIFICATIONS IN MR.
JUSTICE BRANDEIS' CONCURRING OPINION IN ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 341 (1936). 

FN5  MR. JUSTICE FRANKFURTER, CONCURRING IN COLEMAN V. MILLER, 307
U.S. 433, 460 (1939), 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;
FAIRCHILD V. HUGHES, 258 U.S. 126. 

     *         *         * *         * 

"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 ...  ." 

FN6  TYLER V. JUDGES OF THE COURT OF REGISTRATION, 179 U.S. 405
(1900), 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 DEFENCE 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 406. 

THIS HISTORIC VIEW HAS BEEN VOICED AGAIN AND AGAIN AND APPLIED IN
VARIOUS SITUATIONS DOWN THROUGH THE DECADES.  SEE, E.G., LAMPASAS V.
BELL, 180 U.S. 276 (1901); CRONIN V. ADAMS, 192 U.S. 108 (1904); THE
WINNEBAGO, 205 U.S. 354 (1907); ROSENTHAL V. NEW YORK, 226 U.S. 260
(1912); MCCABE V. ATCHISON, T.&S.F.R. CO., 235 U.S. 151 (1914); JEFFREY
MANUFACTURING CO. V. BLAGG, 235 U.S. 571 (1915); SPROUT V. CITY OF
SOUTH BEND, 277 U.S. 163 (1928); TILESTON V. ULLMAN, 318 U.S. 44
(1943); GANGE LUMBER CO. V. ROWLEY, 326 U.S. 295 (1945); BODE V.
BARRETT, 344 U.S. 583 (1953). 

FN7  SIMILARLY, I THINK THAT RESPONDENT'S RELIANCE, IN HER BRIEF, ON
BUCHANAN V. WARLEY, 245 U.S. 60 (1917), 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, 268 U.S. 510 (1925), 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. 

FN8  SEE MR. JUSTICE STONE DISSENTING IN UNITED STATES V. BUTLER, 297
U.S. 1, 78-79 (1936). 
..END :

















SHELTON V. UNITED STATES 346 U.S. 270 


NO. 235, MISC. - DECIDED JUNE 15, 1953 - 197 F.2D 827, JUDGMENTS VACATED
AND CASE REMANDED. 


CLAIMING ILLEGAL SEARCH AND SEIZURE, A FEDERAL PRISONER PETITIONED A
FEDERAL DISTRICT COURT UNDER RULE 41(E) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE FOR THE RETURN OF PROPERTY SEIZED BY FEDERAL
OFFICERS AND FOR THE SUPPRESSION OF ITS USE IN EVIDENCE.  THE DISTRICT
COURT DENIED SUCH RELIEF.  THE COURT OF APPEALS AFFIRMED.  THE PRISONER
PETITIONED THIS COURT FOR A WRIT OF CERTIORARI.  CONFESSING THAT THE
LEGALITY OF PART OF THE SEARCH AND SEIZURE WAS DOUBTFUL, THE GOVERNMENT
TOOK THE POSITION THAT EVERYTHING EXCEPT STOLEN PROPERTY SHOULD BE
RETURNED TO THE PRISONER AND SUGGESTED THAT THE JUDGMENTS BELOW BE
VACATED AND THE CASE BE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS.  HELD: CERTIORARI GRANTED.  UPON CONSIDERATION OF THE
GOVERNMENT'S CONFESSION OF ERROR AND AFTER A REVIEW OF THE RECORD IN
THE CASE, BOTH JUDGMENTS ARE VACATED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS. 

SHELTON V. UNITED STATES. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

PER CURIAM. 

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. 
..END :



















ROSENBERG V. DENNO 346 U.S. 271 


NO. 1, MISC., JUNE 15 SPECIAL TERM, 1953.  - DECIDED JUNE 15, 1953. 


THE ROSENBERGS HAD BEEN SENTENCED TO DEATH FOR CONSPIRACY TO VIOLATE
THE ESPIONAGE ACT OF 1917, AND THE TIME OF EXECUTION HAD BEEN FIXED FOR
THE WEEK OF JUNE 15, 1953.  AS THE COURT WAS ABOUT TO ADJOURN THE
OCTOBER TERM, 1952, ON JUNE 15, 1953, THEIR COUNSEL SUBMITTED A MOTION
FOR LEAVE TO FILE A PETITION FOR AN ORIGINAL WRIT OF HABEAS CORPUS AND
STAY OF EXECUTION.  LATER THAT AFTERNOON, THE COURT MET IN SPECIAL TERM
PURSUANT TO A CALL BY THE CHIEF JUSTICE HAVING THE APPROVAL OF ALL THE
ASSOCIATE JUSTICES.  ALL MEMBERS OF THE COURT WERE PRESENT.  HELD:
LEAVE TO FILE PETITION FOR AN ORIGINAL WRIT OF HABEAS CORPUS DENIED. 

ROSENBERG ET AL. V. DENNO, WARDEN. 

ON MOTION FOR LEAVE TO FILE PETITION FOR ORIGINAL WRIT OF HABEAS
CORPUS AND STAY OF EXECUTION. 

PER CURIAM. 

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. SEC. 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. 
..END :












UNITED STATES V. NUGENT 346 U.S. 1 


NO. 540.  ARGUED MAY 1, 4, 1953 - DECIDED JUNE 8, 1953 - 200 F.2D 46 AND
200 F.2D 540, REVERSED. 


UNDER SEC. 6(J) OF THE SELECTIVE SERVICE ACT OF 1948, A PERSON WHOSE
CLAIM FOR EXEMPTION AS A CONSCIENTIOUS OBJECTOR HAS BEEN REJECTED BY
HIS LOCAL DRAFT BOARD MAY APPEAL TO AN APPEAL BOARD, WHICH IS REQUIRED
TO REFER THE CLAIM TO THE DEPARTMENT OF JUSTICE FOR A RECOMMENDATION,
WHICH THE APPEAL BOARD IS REQUIRED TO CONSIDER BUT IS NOT BOUND TO
FOLLOW.  BEFORE MAKING ITS RECOMMENDATION, THE DEPARTMENT IS REQUIRED
TO MAKE AN "APPROPRIATE INQUIRY" AND TO HOLD A "HEARING."  AFTER
INVESTIGATING THE APPELLANT'S BACKGROUND AND REPUTATION FOR SINCERITY,
THE DEPARTMENT CONDUCTS A HEARING, AT WHICH THE APPELLANT IS ALLOWED TO
APPEAR IN PERSON, ACCOMPANIED BY AN ADVISOR AND WITNESSES TO TESTIFY IN
HIS BEHALF.  UPON REQUEST, HE IS ENTITLED TO BE INSTRUCTED "AS TO THE
GENERAL NATURE AND CHARACTER" OF ANY "UNFAVORABLE" EVIDENCE DEVELOPED
BY THE INVESTIGATION; BUT HE IS NOT PERMITTED TO SEE THE INVESTIGATOR'S
REPORT, NOR IS HE INFORMED OF THE NAMES OF PERSONS INTERVIEWED BY THE
INVESTIGATOR.  HELD: 

1.  THIS PROCEDURE SATISFIES THE REQUIREMENTS OF THE ACT.  PP. 2-9. 

(A)  THE STATUTORY SCHEME FOR REVIEW OF EXEMPTIONS CLAIMED BY
CONSCIENTIOUS OBJECTORS DOES NOT ENTITLE THEM TO HAVE THE
INVESTIGATOR'S REPORTS PRODUCED FOR THEIR INSPECTION.  PP. 5-6. 

(B)  THE DEPARTMENT SATISFIES ITS DUTIES UNDER SEC. 6(J) WHEN IT
ACCORDS THE REGISTRANT A FAIR OPPORTUNITY TO PRESENT HIS VIEWS BEFORE
AN IMPARTIAL HEARING OFFICER, PERMITS HIM TO PRODUCE ALL RELEVANT
EVIDENCE IN HIS OWN BEHALF AND SUPPLIES HIM WITH A FAIR RESUME OF ANY
ADVERSE EVIDENCE IN THE INVESTIGATOR'S REPORT.  P. 6. 

(C)  THE REQUIREMENT OF SEC. 6(J), THAT THE DEPARTMENT AFFORD THE
REGISTRANT A "HEARING," DOES NOT REQUIRE IT TO ENTERTAIN AN ALL-OUT
COLLATERAL ATTACK ON THE TESTIMONY OBTAINED IN THE PREHEARING
INVESTIGATION.  PP. 6-9. 

2.  AS THUS CONSTRUED AND APPLIED, THE ACT DOES NOT VIOLATE THE FIFTH
AMENDMENT.  PP. 9-10. 

3.  IN NEITHER OF THESE CASES CAN THE REGISTRANT COMPLAIN OF ANY
FAILURE OF THE DEPARTMENT TO SUPPLY HIM WITH A FAIR RESUME OF THE
INVESTIGATOR'S REPORT, BECAUSE ONE OF THEM DID NOT REQUEST IT AND IN
NEITHER CASE WAS THE INVESTIGATOR'S REPORT TRANSMITTED TO THE APPEAL
BOARD OR REPRESENTED TO IT AS BEING UNFAVORABLE.  P. 6, NOTE 10. 

UNITED STATES V. NUGENT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT.* 

*TOGETHER WITH NO. 573, UNITED STATES V. PACKER, ON CERTIORARI TO THE
SAME COURT. 

RESPONDENTS WERE CONVICTED OF VIOLATING SEC. 12 OF THE SELECTIVE
SERVICE ACT OF 1948, 50 U.S.C. APP. (SUPP. V) SEC. 462, BY WILLFULLY
REFUSING TO SUBMIT TO INDUCTION INTO THE ARMED FORCES OF THE UNITED
STATES.  THE COURT OF APPEALS REVERSED.  200 F.2D 46, 540.  THIS COURT
GRANTED CERTIORARI.  345 U.S. 915.  REVERSED, P. 10. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

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
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. 

THESE TWO CASES ARE CONCERNED WITH THE PROCEDURE, ESTABLISHED BY
REGULATION AND PRACTICE, (FN2) 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.  (FN3)  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.  (FN4)  BUT HE IS NOT PERMITTED TO SEE THE FBI REPORT,
NOR IS HE INFORMED OF THE NAMES OF PERSONS INTERVIEWED BY THE
INVESTIGATORS. 

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.  (FN5)  WE GRANTED CERTIORARI,
345 U.S. 915, BECAUSE THAT DETERMINATION SEEMED IN CONFLICT WITH THE
DECISIONS OF OTHER COURTS OF APPEALS (FN6) AND BECAUSE IT DEALT WITH AN
IMPORTANT PROBLEM IN THE ADMINISTRATION OF THE SELECTIVE SERVICE ACT. 

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.  (FN7)  AT THEIR TRIALS, RESPONDENTS
CHALLENGED THE VALIDITY OF THEIR SELECTIVE SERVICE CLASSIFICATIONS,
CLAIMING THAT THEY WERE FIXED WITHOUT BASIS IN FACT (FN8) AND WITHOUT
ADHERENCE TO THE PROCEDURES PRESCRIBED BY SEC. 6(J) OF THE ACT; (FN9)
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. 

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 SEC. 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 RESUME OF ANY ADVERSE EVIDENCE IN THE INVESTIGATOR'S
REPORT.  (FN10) 

RESPONDENTS URGE THAT THIS IS NOT ENOUGH.  THE ARGUMENT RIDES HARD
UPON THE WORD "HEARING" IN SEC. 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.  (FN11)  IN SUM, RESPONDENTS
ASSIMILATE THE "HEARING" IN SEC. 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. 

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 SEC. 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 SEC. 6(J).  (FN12) 

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; (FN13) 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.  (FN14) 

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.  OBSERVERS 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. 
(FN15)  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. 

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. 

RESPONDENTS URGE THAT THEY HAVE A RIGHT TO SUCH A PROCEDURE UNDER THE
FIFTH AMENDMENT.  WE CANNOT AGREE. 

THE SELECTIVE SERVICE ACT IS A COMPREHENSIVE STATUTE DESIGNED TO
PROVIDE AN ORDERLY, EFFICIENT AND FAIR PROCEDURE TO 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. 

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 INTERRUPTION."  FALBO V. UNITED STATES, 320 U.S. 549, 554
(1944).  UNDER THE CIRCUMSTANCES PRESENTED, WE CANNOT HOLD THAT THE
STATUTE, AS WE CONSTRUE IT, VIOLATES THE CONSTITUTION.  (FN16). 

THE JUDGMENTS ARE REVERSED. 

FN1  SECTION 6(J) APPEARED IN THE 1940 SELECTIVE SERVICE ACT AS SEC.
5(G), 54 STAT.  885, 889.  IT WAS REENACTED AS SEC. 6(J) OF THE
SELECTIVE SERVICE ACT OF 1948.  62 STAT.  604, 613, 50 U.S.C. SEC.
456(J).  THE ACT WAS AMENDED IN 1951, 65 STAT. 75, 86, 50 U.S.C.  APP.
(SUPP. V) SEC. 456(J), AND THE PRESENT LANGUAGE OF SEC. 6(J) DIFFERS IN
IMMATERIAL RESPECTS FORM THE LANGUAGE IN THE EARLIER STATUTES. 

THE FULL TEXT OF SEC. 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 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. 

FN2  SEE 32 CFR SEC. 1626.25 (1949 ED.); SEE ALSO 17 FED. REG. 5449,
JUNE 18, 1952. 

FN3  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 P. 54. 

FN4  IBID. 

FN5  UNITED STATES V. NUGENT, 200 F.2D 46, AND UNITED STATES V.
PACKER, 200 F.2D 540. 

FN6  SEE E.G., IMBODEN V. UNITED STATES, 194 F.2D 508 (C.A. 6TH CIR.
1952); ELDER V. UNITED STATES, 202 F.2D 465 (C.A. 9TH CIR. 1953). 
FN7  50 U.S.C. APP. (SUPP. V) SEC. 462. 

FN8  COX V. UNITED STATES, 332 U.S. 442 (1947). 

FN9  ESTEP V. UNITED STATES, 327 U.S. 114 (1946). 

FN10  AS TO WHAT CONSTITUTES A "FAIR RESUME" SEE IMBODEN V. UNITED
STATES, SUPRA.  COMPARE UNITED STATES V. OLLER, 107 F. SUPP. 54 (D.
CONN. 1952), AND UNITED STATES V. BOUZIDEN, 108 F. SUPP. 395 (W.D.
OKLA. 1952). 

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 SEC. 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 HIS 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. 

FN11  SEE UNITED STATES V. GEYER, 108 F. SUPP. 70 (D. CONN. 1952), AN
OPINION HEAVILY RELIED UPON BY THE COURT OF APPEALS IN ITS OPINION IN
THE NUGENT CASE. 

FN12  NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, 288 U.S. 294
(1933). 

FN13  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. 

FN14  32 CFR (1949 ED.)  PART 1624. 

FN15  SEE SIBLEY AND JACOB, CONSCRIPTION OF CONSCIENCE (1952), 71
76. 

FN16  CF. NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, SUPRA;
WILLIAMS V. NEW YORK, 337 U.S. 241 (1949). 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

THAT SO STRONG A COURT AND ONE SO STRONG IN LITERARY ENDOWMENT -
SWAN, C.J., LEARNED HAND AND FRANK, JJ. - SHOULD RELY, AS DID THE COURT
OF APPEALS IN THIS CASE, 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. 

"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. 

"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  ...  . 

     *         *         *  *         * 

"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, 108 F.
SUPP. 70, 71-72. 

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 RELIGIOUS 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. 

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. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

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 WITHER UNDER THE
CROSS-EXAMINATION. 
..END :
















DALEHITE V. UNITED STATES 346 U.S. 15 


NO. 308.  ARGUED APRIL 6-8, 1953 - DECIDED JUNE 8, 1953 - 197 F.2D 771,
AFFIRMED. 


IN THIS ACTION AGAINST THE UNITED STATES UNDER THE TORT CLAIMS ACT TO
RECOVER DAMAGES FOR A DEATH RESULTING FROM THE DISASTROUS EXPLOSION AT
TEXAS CITY, TEX., OF AMMONIUM NITRATE FERTILIZER PRODUCED AT THE
INSTANCE, ACCORDING TO THE SPECIFICATIONS AND UNDER THE CONTROL OF THE
UNITED STATES, FOR EXPORT TO INCREASE THE FOOD SUPPLY IN AREAS UNDER
MILITARY OCCUPATION FOLLOWING WORLD WAR II, THE DISTRICT COURT FOUND
THAT THE EXPLOSION RESULTED FROM NEGLIGENCE ON THE PART OF THE
GOVERNMENT IN ADOPTING THE FERTILIZER EXPORT PROGRAM AS A WHOLE, IN ITS
CONTROL OF VARIOUS PHASES OF MANUFACTURING, PACKAGING, LABELING AND
SHIPPING THE PRODUCT, IN FAILING TO GIVE NOTICE OF ITS DANGEROUS NATURE
TO PERSONS HANDLING IT AND IN FAILING TO POLICE ITS LOADING ON
SHIPBOARD.  HELD: AS A MATTER OF LAW, THE FACTS FOUND BY THE DISTRICT
COURT CANNOT GIVE IT JURISDICTION OF THE CAUSE UNDER THE ACT, BECAUSE
THE CLAIM IS "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," WITHIN THE MEANING OF
28 U.S.C. SEC. 2680(A), WHICH MAKES THE ACT INAPPLICABLE TO SUCH
CLAIMS.  PP. 17-45. 

(A)  THE LEGISLATIVE HISTORY OF THE ACT DISCLOSES THAT SEC. 2680(A)
WAS INCLUDED TO ASSURE PROTECTION FOR THE GOVERNMENT AGAINST TORT
LIABILITY FOR ERRORS IN ADMINISTRATION OR IN THE EXERCISE OF
DISCRETIONARY FUNCTIONS.  PP. 24-30. 

(B)  THE "DISCRETIONARY FUNCTION OR DUTY" THAT CANNOT FORM A BASIS
FOR SUIT UNDER THE 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.  ACTS OF SUBORDINATES IN CARRYING OUT THE OPERATIONS OF
GOVERNMENT IN ACCORDANCE WITH OFFICIAL DIRECTIONS CANNOT BE
ACTIONABLE.  PP. 30-36. 

(C)  THE ACTS OF "NEGLIGENCE" FOUND BY THE DISTRICT COURT DO NOT
SUBJECT THE GOVERNMENT TO LIABILITY, BECAUSE THE DECISIONS FOUND
CULPABLE WERE ALL RESPONSIBLY MADE IN THE EXERCISE OF JUDGMENT AT A
PLANNING RATHER THAN AN OPERATIONAL LEVEL AND INVOLVED CONSIDERATIONS
MORE OR LESS IMPORTANT TO THE PRACTICABILITY OF THE GOVERNMENT'S
FERTILIZER PROGRAM.  PP. 37-42. 

(D)  THE DISTRICT COURT'S FINDING THAT THE COAST GUARD AND OTHER
AGENCIES WERE NEGLIGENT IN FAILING TO PREVENT THE FIRE BY REGULATING
STORAGE OR LOADING OF THE FERTILIZER IS CLASSICALLY WITHIN THE
EXCEPTION RELATING TO ACTS BASED ON LEGISLATIVE JUDGMENT.  PP. 42-43. 

(E)  THE ALLEGED FAILURE IN FIGHTING THE FIRE IS ALSO OUTSIDE THE
COVERAGE OF THE ACT, FOR THE ACT DID NOT CHANGE THE NORMAL RULE THAT AN
ALLEGED FAILURE OR CARELESSNESS OF PUBLIC FIREMEN DOES NOT CREATE
PRIVATE ACTIONABLE RIGHTS.  PP. 43-44. 

(F)  SINCE THE ACT MAY BE INVOKED ONLY ON A "NEGLIGENT OR WRONGFUL
ACT OR OMISSION" OF AN EMPLOYEE, IT CREATED NO ABSOLUTE LIABILITY OF
THE GOVERNMENT BY VIRTUE OF ITS OWNERSHIP OF AN "INHERENTLY DANGEROUS
COMMODITY" OR PROPERTY, OR OF ITS ENGAGING IN AN "EXTRA-HAZARDOUS"
ACTIVITY.  PP. 44-45. 

DALEHITE ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

IN THIS ACTION AGAINST THE UNITED STATES UNDER THE TORT CLAIMS ACT,
THE DISTRICT COURT AWARDED A JUDGMENT TO PLAINTIFFS.  THE COURT OF
APPEALS REVERSED.  197 F.2D 771.  THIS COURT GRANTED CERTIORARI.  344
U.S. 873.  AFFIRMED, P. 45. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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, 344 U.S. 873, BECAUSE THE CASE PRESENTED AN IMPORTANT
PROBLEM OF FEDERAL STATUTORY INTERPRETATION. 

THE SUITS WERE FILED UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C.
SECS. 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. 

THE ACT PROVIDES THAT THE FEDERAL DISTRICT COURTS, "SUBJECT TO THE
PROVISIONS OF (THE ACT)," ARE TO HAVE: 

"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."  SEC. 1346(B). 

THERE IS AN EXCEPTION FROM THE SCOPE OF THIS PROVISION.  SECTION 2680
READS: 

"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." 

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. 

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. SEC. 831D, FIRST BEGAN PRODUCTION FOR COMMERCIAL PURPOSES. 
(FN1)  TVA USED PLANT 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, 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. 

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, (FN2) 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,
1949, 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.  (FN3)  THE DIRECTOR OF THE
OFFICE OF WAR MOBILIZATION AND RECONVERSION, 58 STAT.  785, 50 U.S.C.
APP. SEC. 1651 ET SEQ. (1946 ED.), ACTING UNDER THE POWER DELEGATED BY
THE PRESIDENT IN EXEC. ORDER 9347, MAY 27, 1943, 8 FED. REG. 7207, AND
EXEC. ORDER 9488, OCTOBER 3, 1944, 9 FED. REG. 12145, 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.  (FN4)  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-FEE
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 INSTALLATION  ...
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.  (FN5) 

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)." 

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.  THEREAFTER THE PRIVATE PRODUCERS COULD
REPLENISH THEIR SUPPLY FOR PRIVATE SALE BY PURCHASING GOVERNMENT
PRODUCED FGAN, IF THEY SO DESIRED. 

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." 

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.  (FN6)  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.  (FN7)  BOTH SHIPS EXPLODED AND MUCH OF
THE CITY WAS LEVELED AND MANY PEOPLE KILLED. 

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
AMMONIUM 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.  LABOR BOARD V. PITTSBURGH STEAMSHIP CO., 340 U.S.
498, 503; UNITED STATES V. UNITED STATES GYPSUM CO., 333 U.S. 364,
395.  EVEN ASSUMING THEIR CORRECTNESS ARGUENDO, THOUGH, IT IS OUR
JUDGMENT THAT THEY DO NOT ESTABLISH A CASE WITHIN THE ACT.  (FN8)  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. 

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. 
(FN9)  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. 
(FN10)    THE MEANING OF THE GOVERNMENTAL REGULATORY FUNCTION EXCEPTION
FROM SUITS, SEC. 2680(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 RELEVANT HEARINGS.  INSTEAD, IT INTEGRATED THE
LANGUAGE OF THE SEVENTY-SEVENTH CONGRESS, WHICH HAD FIRST CONSIDERED
THE EXCEPTION, INTO THE LEGISLATIVE REORGANIZATION ACT AS TITLE IV. 

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.  (FN11)  IN 1942,
HOWEVER, THE SEVENTY-SEVENTH CONGRESS DRAFTED A TWOFOLD 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 SEC. 2680(A) AS ADOPTED.  (FN12)  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.  (FN13) AN ASSISTANT ATTORNEY
GENERAL, APPEARING BEFORE THE COMMITTEE ESPECIALLY FOR THAT PURPOSE,
(FN14) 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."  (FN15)  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."  (FN16) 

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, (FN17) IT WAS NOT CONTEMPLATED THAT THE
GOVERNMENT SHOULD BE SUBJECT TO LIABILITY ARISING FROM ACTS OF A
GOVERNMENTAL NATURE OR FUNCTION.  (FN18)  SECTION 2680(A) DRAWS THIS
DISTINCTION.  UPPERMOST IN THE COLLECTIVE MIND OF CONGRESS WERE THE
ORDINARY COMMON-LAW TORTS.  (FN19)  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."  (FN20)  ON THE OTHER HAND THE COMMITTEE'S REPORTS EXPLAIN
THE BOUNDARIES OF THE SOVEREIGN IMMUNITY WAIVED, AS DEFINED BY THIS
SEC. 2680 EXCEPTION, WITH ONE PARAGRAPH WHICH APPEARS TIME AND AGAIN
AFTER 1942, AND IN THE HOUSE REPORT OF THE CONGRESS THAT ADOPTED IN
SEC. 2680(A) THE LIMITATION IN THE LANGUAGE PROPOSED FOR THE 77TH
CONGRESS.  (FN21)  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 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  ...  .  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." 

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.  (FN22)  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.
SEC. 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, (FN23) 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.  (FN24) THEY CANNOT DO LESS SINCE PETITIONERS
OBTAIN THEIR "RIGHT TO SUE FROM CONGRESS AND THEY NECESSARILY MUST TAKE
IT SUBJECT TO SUCH RESTRICTIONS AS HAVE BEEN IMPOSED."  FEDERAL HOUSING
ADMINISTRATION V. BURR, 309 U.S. 242, 251. 

SO, OUR DECISIONS HAVE INTERPRETED THE ACT TO REQUIRE CLEAR
RELINQUISHMENT OF SOVEREIGN IMMUNITY TO GIVE JURISDICTION FOR TORT
ACTIONS.  (FN25)  WHERE JURISDICTION WAS CLEAR, THOUGH, WE HAVE ALLOWED
RECOVERY DESPITE ARGUABLE PROCEDURAL OBJECTIONS.  (FN26) 

ONE ONLY NEED READ SEC. 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 IN ESTABLISHING
A QUARANTINE, ASSAULT, LIBEL, FISCAL OPERATIONS, ETC., WAS BARRED.  AN
ANALYSIS OF SEC. 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.  (FN27)  IT WILL BE NOTED
FROM THE FORM OF THE SECTION, SEE P. 18, 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. 
(FN28)  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. SEC.
1346(B).  THE EXERCISE OF DISCRETION COULD NOT BE ABUSED WITHOUT
NEGLIGENCE OR A WRONGFUL ACT.  THE COMMITTEE REPORTS, NOTE 21, SUPRA,
SHOW THIS.  THEY SAY SEC. 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."  (FN29) 

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 P. 28, 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.  (FN30) 

THIS CONTENTION IS MET BY PETITIONERS WITH THESE ARGUMENTS: 

"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. 

"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." 

"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. 

     *         *       *         *         * 

"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." 

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.  (FN31)  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 SEC. 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.  (FN32) 

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, WERE 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, PP. 18-20, 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. 

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 AMMUNITION PLANTS IN JUNE, 1946, PRIOR TO BEGINNING
PRODUCTION.  (FN33)  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. 
(FN34)  THIS PLAN WAS DISTRIBUTED TO THE VARIOUS PLANTS AT THE
INCEPTION OF THE PROGRAM. 

BESIDES ITS GENERAL CONDEMNATION OF THE MANUFACTURE OF FGAN, THE
DISTRICT COURT CITED FOUR SPECIFIC ACTS OF NEGLIGENCE IN MANUFACTURE. 
(FN35)  EACH OF THESE ACTS LOOKED UPON AS NEGLIGENCE WAS DIRECTED BY
THIS PLAN.  APPLICABLE EXCERPTS FOLLOW.  BAGGING TEMPERATURE WAS
FIXED.  (FN36)  THE TYPE OF BAGGING (FN37) AND THE LABELING THEREOF
(FN38) WERE ALSO ESTABLISHED.  THE PRP COATING, TOO, WAS INCLUDED IN
THE SPECIFICATIONS.  (FN39)  THE ACTS FOUND TO HAVE BEEN NEGLIGENT 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, P. 20, CLEARLY REQUIRED THE EXERCISE OF
EXPERT JUDGMENT.    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. 

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 BOXCAR 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 DEGREES.  BOTH, HOWEVER,
RECOMMENDED THAT REDUCED TEMPERATURES WOULD BE INADVISABLE.  IT WOULD
BE POSSIBLE TO KEEP THE PRODUCT IN GRAINING KETTLES FOR 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.  (FN40) 

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. 

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 SEC. 2680(A). 

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. 

"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.  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. 

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, AT 777, 780, 781.  WE DO NOT ENTER INTO AN EXAMINATION OF
THESE FACTUAL FINDINGS.  WE PREFER, AGAIN, TO REST OUR DECISION ON THE
ACT. 

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 CLASICALLY
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. 
THE COURTS HAVE TRADITIONALLY REFUSED TO QUESTION THE JUDGMENTS ON
WHICH THEY ARE BASED.  ZYWICKI V. JOS.  R. FOARD CO., 206 F. 975;
GUTOWSKI V. MAYOR OF BALTIMORE, 127 MD. 502, 96 A. 630; STATE V.
GENERAL STEVEDORING CO., 213 F. 51. 

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. 

"  ...  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. 

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. SECS. 1346 AND 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. SEC. 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.  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. 

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 PETITIONERS 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, 195 F.2D 64, 67. 

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, SEE E.G., THE SUITS IN ADMIRALTY
ACT, 41 STAT. 525, 46 U.S.C. SEC. 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. 
AFFIRMED. 

FN1  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 INSULATOR.  SEE P. 21, INFRA. 

FN2  THE HAGUE CONVENTIONS OF 1899 (II) AND 1907 (IV) RESPECTING THE
LAWS AND CUSTOMS OF WAR ON LAND, ARTICLE 43. 

FN3  THESE WERE CAPABLE OF PRODUCING 70,000 TONS A MONTH. 

FN4  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. 

FN5  BY 1946, AT LEAST TWO COMPANIES IN ADDITION TO HERCULES WERE
PRODUCING FGAN COMMERCIALLY. 

FN6  SEVENTY-FIVE THOUSAND TONS OF FGAN HAD BEEN SHIPPED THROUGH
TEXAS CITY DURING THE PREVIOUS SIX MONTHS. 

FN7  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. 

FN8  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),
IN TERMS, CONTEMPLATES A SYSTEM OF FINDINGS WHICH ARE "OF FACT" AND
WHICH ARE "CONCISE."  THE WELL-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, 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, OF COURSE THEY ARE NOT BINDING
ON APPEAL.  E.G., GREAT ATLANTIC & PACIFIC TEA CO. V. SUPERMARKET
EQUIPMENT CORP., 340 U.S. 147, 153-154, AND CONCURRING OPINION AT 155
156. 

FN9  "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. 
FN10  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
EMPLOYEES, THE ORDINARY "COMMON LAW" TYPE OF TORT, SUCH AS PERSONAL
INJURY OR PROPERTY DAMAGE CAUSED BY THE NEGLIGENT OPERATION OF AN
AUTOMOBILE.  HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON
H.R. 5373 AND H.R. 6463, 77TH CONG., 2D SESS., P. 24. 

FN11  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. 

FN12  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 "ANY 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." 

FN13  HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R.
5373 AND H.R. 6463, 77TH CONG., 2D SESS., PP. 1, 4. 

FN14  HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY, 77TH
CONG., 2D SESS., ON H.R. 5373 AND H.R. 6463, P. 6. 

FN15  IBID., PP. 25, 33. 

FN16  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. 

FN17  HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
CLAIMS, 72D CONG., 1ST SESS., ON A GENERAL TORT BILL, P. 17; HEARINGS
BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON THE JUDICIARY ON
H.R. 7236, 76TH CONG., 3D SESS., PP. 5, 16; HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY ON S. 2690, 76TH
CONG., 3D SESS., P. 27; HEARINGS BEFORE THE HOUSE COMMITTEE ON THE
JUDICIARY 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., 1ST
SESS., P. 5; S. REP. NO. 1400, 79TH CONG., 2D SESS., P. 31. 

FN18  H.R. REP. NO. 2800, 71ST CONG., 3D 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., 1ST SESS., P. 5; 86 CONG. REC. 12021-12022. 

FN19  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. 

FN20  H.R. REP. NO. 2428, 76TH CONG., 3D SESS., P. 3; 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. 

FN21  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 HOUSE 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." 

FN22  FERES V. UNITED STATES, 340 U.S. 135, 139; UNITED STATES V.
SHAW, 309 U.S. 495; UNITED STATES V. ECKFORD, 6 WALL.  484.  CF.
BLACKSTONE, BOOK I, C. 7 (SOVEREIGNTY). 

FN23  UNITED STATES V. YELLOW CAB CO., 340 U.S. 543, 555; KEIFER &
KEIFER V. RECONSTRUCTION FINANCE CORPORATION, 306 U.S. 381. 

FN24  UNITED STATES V. DICKSON, 15 PET. 141, 165; WALLING V.
JACKSONVILLE PAPER CO., 317 U.S. 564, 571; A.H. PHILLIPS, INC. V.
WALLING, 324 U.S. 490, 493. 

FN25  IN FERES V. UNITED STATES, 340 U.S. 135, 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. 

IN UNITED STATES V. SPELAR, 338 U.S. 217, 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,
SEC. 2680(K), OF "ANY CLAIM ARISING IN A FOREIGN COUNTRY."  THE
SOVEREIGNTY OF THE UNITED STATES DID NOT EXTEND OVER THE BASE. 

FN26  UNITED STATES V. AETNA CASUALTY & SURETY CO., 338 U.S. 366. 
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.  UNITED STATES MAY BE
SUED FOR CONTRIBUTION, AND ALSO BE IMPLEADED AS A THIRD PARTY
DEFENDANT. 

FN27  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 SEC. 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 DEPARTMENTS," 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 REVIEW 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 THE RESULT
WOULD INTERFERE SERIOUSLY WITH THE ORDINARY ADMINISTRATIVE WORK OF THE
GOVERNMENT  ...  ."  ENEVER V. THE KING, 3 COM. L.R. 969, 988 (1906);
SEE ALSO DAVIDSON V. WALKER, 1 N.S.W. ST. R. 196, 208-213 (1901), 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 FAIRLY BE REQUIRED, THE
PARTICULAR LAND IN QUESTION IS TO BE APPROPRIATED.  IT IS NOT FOR THE
JUDGE TO SAY THAT THEY HAVE MADE A BAD SELECTION.'"  1 N.S.W. ST. R.
211. 

FN28  "'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. SEC.
2671. 

FN29  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, 93 F. SUPP. 866;
COATES V. UNITED STATES, 181 F.2D 816; DENNY V. UNITED STATES, 171 F.2D
365; OLSON V. UNITED STATES, 93 F. SUPP. 150; TOLEDO V. UNITED STATES,
95 F. SUPP. 838; THOMAS V. UNITED STATES, 81 F. SUPP. 881. 

FN30  IT SEEMS SUFFICIENT TO CITE MARBURY V. MADISON, 1 CRANCH 137,
170; SPALDING V. VILAS, 161 U.S. 483, 498; ALZUA V. JOHNSON, 231 U.S.
106; LOUISIANA V. MCADOO, 234 U.S. 627, 633; PERKINS V. LUKENS STEEL
CO., 310 U.S. 113, 131. 

FN31  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; GOLDSTEIN V. STATE OF NEW YORK, 281 N.Y. 396, 24
N.E.2D 97.  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 SHEPPARD 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. 

FN32  THE COURTS THAT HAVE PASSED UPON THE APPLICATION OF SEC.
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, 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, 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, 94 F. SUPP. 824.  THERE THE
PLAINTIFF WAS DENIED RECOVERY FOR INJURY TO HIS CELLAR AND CESSPOOL
OCCASIONED BY A GOVERNMENT DAM HAVING RAISED THE LEVEL OF THE LOCAL
GROUND WATER.  A LIKE RESULT OBTAINED IN LAUTERBACH V. UNITED STATES,
95 F. SUPP. 479, WHERE CLAIMANT SUED TO RECOVER DAMAGES RESULTING FROM
RELEASE OF FLOOD WATERS AT BONNEVILLE DAM. 

OLSON V. UNITED STATES, 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 FLOOD
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 151, 152-153.  SICKMAN V.
UNITED STATES, 184 F.2D 616, ALSO INVOKED SEC. 2680(A).  THERE
PLAINTIFF UNSUCCESSFULLY SOUGHT RECOVERY FOR CROP DEPREDATIONS BY WILD
BIRDS INDUCED TO FEED ON HIS LAND BY A NEARBY GOVERNMENTAL GAME
PRESERVE. 

IN TOLEDO V. UNITED STATES, 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 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, WERE
"PECULIARLY WITHIN THE DISCRETION OF THE APPROPRIATE EMPLOYEES OF THE
STATION," BUT THAT NEGLIGENT REMOVAL WOULD NOT HAVE BEEN.  95 F. SUPP.,
AT 841. 

FN33  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." 

FN34  "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. SEC. 2680(L). 

FN35  SEE APPENDIX, P. 45, THIS OPINION. 

FN36  "WATER SHALL BE TURNED OFF AND DISCHARGING OF KETTLE COMMENCED
WHEN TEMPERATURE REACHES 200 DEGREES F." 

THE RELEVANCE OF THE BAGGING TEMPERATURE APPARENTLY STEMMED FROM
CERTAIN TESTIMONY THAT LARGE MASSES OF FGAN, IF MAINTAINED AT
TEMPERATURES OF AROUND 300 DEGREES 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 TEMPERATURE AT WHICH IT WAS LOADED ON THE SHIPS. 

FN37  "PACKAGING.  AMMONIUM NITRATE FOR FERTILIZER SHALL BE PACKED
100 LBS. 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. 

FN38  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. 

FN39  "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." 

FN40  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
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 DEGREES 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. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

                       APPENDIX TO OPINION OF THE COURT. 

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
...  . 

"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 REASONABLE 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  ...  ." 

"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,  ...  ." 

"  ...  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 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 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 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." 

"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  ...  . 

     *         *        *         *         * 

"  ...  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, IF
POSSIBLE PROTECT THEMSELVES AND THE PUBLIC AGAINST THE DANGER OF FIRES
FROM AND EXPLOSIONS OF SUCH FERTILIZER." 

THE DISTRICT COURT CONCLUDED: 

"CLEARLY SUCH FERTILIZER OUGHT NEVER TO HAVE BEEN MANUFACTURED.  FROM
THE BEGINNING ON DOWN, IT WAS A DANGEROUS COMMODITY AND A DANGEROUS
NUISANCE." 

MR. JUSTICE JACKSON, JOINED BY MR. JUSTICE BLACK AND MR. JUSTICE
FRANKFURTER, DISSENTING. 

ALL DAY, APRIL 15, 1947, LONGSHOREMEN LOADED BAGS OF AMMONIUM 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. 

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. 

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.  (FN1)  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.  (FN2) 

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."  (FN3) 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.    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. 

UNTIL RECENTLY, THE INFLUENCE OF THE FEDERAL GOVERNMENT HAS BEEN
EXERTED IN THE FIELD OF TORT LAW TO TIGHTEN LIABILITY AND LIBERALIZE
REMEDIES.  (FN4)  CONGRESS HAS EVEN IMPOSED CRIMINAL LIABILITY WITHOUT
REGARD TO KNOWLEDGE OF DANGER OR INTENT WHERE POTENTIALLY DANGEROUS
ARTICLES ARE INTRODUCED INTO INTERSTATE COMMERCE.  (FN5)  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. 

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 EVERYDAY 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. 

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. 

FORWARD-LOOKING COURTS, SLOWLY BUT STEADILY, HAVE BEEN ADAPTING THE
LAW OF NEGLIGENCE TO THESE CONDITIONS.  (FN6)  THE LAW WHICH BY STATUTE
DETERMINES THE GOVERNMENT'S LIABILITY IS THAT OF THE PLACE WHERE THE
NEGLIGENT ACT OR OMISSION OCCURRED.  (FN7)  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.  (FN8)  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. 

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. 

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. 

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.  (FN9)  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. 

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. 

THE EVIDENCE SHOWED THAT THIS TYPE OF FERTILIZER HAD BEEN
MANUFACTURED FOR ABOUT FOUR YEARS AT THE TIME OF THE EXPLOSION IN TEXAS
CITY.  PETITIONERS' 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
PETITIONERS' 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. 

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
CARE.  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. 

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.  (FN10)  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 LIBAILITY 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.  (FN11) 

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 PAPER
BAGGING MATERIAL, ABSENCE OF LABELING AND WARNING - INVOLVED A
CONSCIOUS WEIGHING OF EXPEDIENCY AGAINST CAUTION AND WAS 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. 

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 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. 

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.  (FN12) 

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.  (FN13)  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 UPKEEP.  (FN14) 
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, (FN15) AND SUCH CASES COULD BE MULTIPLIED.  (FN16) 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. 

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. 

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." 

FN1  IN RE TEXAS CITY DISASTER LITIGATION, 197 F.2D 771. 

FN2  28 U.S.C. SEC. 2680. 

FN3  CARDOZO, THE GROWTH OF THE LAW, P. 102.  (EMPHASIS HIS OWN.) 

FN4  SEE, E.G., THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SEC.
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.  SEC. 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. SEC. 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. SEC. 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. 

FN5  BOYCE MOTOR LINES V. UNITED STATES, 342 U.S. 337. 

FN6  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.  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.  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, 192 F.2D 265 (ABSENCE OF SAFETY
DEVICE ON GASOLINE VAPOR PRESSING IRON); ROETTIG V. WESTINGHOUSE MFG.
CO., 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., 363 MO. 406, 251 S.W.2D 635 (DEFECT 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., 135 W. VA. 795, 65 S.E.2D 205 (EXPLODING GLASS 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. 

FN7  28 U.S.C. SEC. 1346. 

FN8  MCAFEE V. TRAVIS GAS CORP., 137 TEX. 314, 153 S.W.2D 442; TEXAS
DRUG CO. V. CALDWELL (TEX. CIV. APP.), WRIT DISMISSED, 237 S.W. 968;
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, 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. 

FN9  RULE 52(A), FED. RULES CIV. PROC. 

FN10  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 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
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 THE INJURIES OF WHICH PLAINTIFFS COMPLAIN. 

FN11  28 U.S.C. SEC. 2680:  "THE PROVISIONS OF THIS CHAPTER AND

"(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  ...  ." 

FN12  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. 

FN13  SEE PATTERSON, MINISTERIAL AND DISCRETIONARY OFFICIAL ACTS, 20
MICH. L. REV. 848. 

FN14  E.G., KEELEY V. PORTLAND, 100 ME. 260, 262, 61 A. 180, 181-182;
CUMBERLAND V. TURNEY, 177 MD. 297, 311, 9 A.2D 561, 567; GALLAGHER V.
TIPTON, 133 MO. APP. 557, 113 S.W. 674. 

FN15  GREGOIRE V. BIDDLE, 177 F.2D 579. 

FN16  SPALDING V. VILAS, 161 U.S. 483 (POSTMASTER GENERAL); WILKES V.
DINSMAN, 7 HOW.  89 (OFFICER OF MARINE CORPS); OTIS V. WATKINS, 9
CRANCH 339 (DEPUTY COLLECTOR OF CUSTOMS); YASELLI V. GOFF, 12 F.2D 396,
AFF'D 275 U.S. 503 (SPECIAL ASSISTANT TO THE ATTORNEY GENERAL).  THE
OVERWHELMING WEIGHT OF AUTHORITY IN THE STATES IS TO THE SAME EFFECT. 
SEE 42 AM.  JUR.  SEC.  257.
..END :













AUTOMATIC CANTEEN COMPANY OF AMERICA V. FEDERAL TRADE COMMISSION 346
U.S. 61 


NO. 89.  ARGUED DECEMBER 12, 15, 1952 - DECIDED JUNE 8, 1953 - 194 F.2D
433, REVERSED. 


ENGAGED IN INTERSTATE COMMERCE "KNOWINGLY TO INDUCE OR RECEIVE A
DISCRIMINATION IN PRICE WHICH IS PROHIBITED" BY THE ACT, BUT THE ACT
DOES NOT PROHIBIT A PRICE DIFFERENTIAL WHICH MAKES ONLY DUE ALLOWANCE
FOR COST DIFFERENCES.  THE FEDERAL TRADE COMMISSION ISSUED A COMPLAINT
CHARGING VIOLATION OF SEC. 2(F) BY PETITIONER, A LARGE BUYER OF CANDY
AND CONFECTIONS FOR RESALE THROUGH AUTOMATIC VENDING MACHINES OPERATED
IN MANY STATES.  AT THE HEARING, THE COMMISSION INTRODUCED EVIDENCE
THAT PETITIONER RECEIVED, AND IN SOME INSTANCES SOLICITED, PRICES THAT
PETITIONER KNEW WERE AS MUCH AS 33% LOWER THAN THE PRICES TO OTHER
BUYERS.  PETITIONER'S MOTION TO DISMISS THE COMPLAINT ON THE GROUND
THAT THE COMMISSION HAD NOT MADE A PRIMA FACIE CASE WAS DENIED; AND, ON
PETITIONER'S FAILURE TO INTRODUCE EVIDENCE, THE COMMISSION ENTERED A
CEASE AND DESIST ORDER.  HELD: 

1.  A BUYER DOES NOT VIOLATE SEC. 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.  PP. 69-74. 

2.  PROOF THAT THE BUYER KNEW THAT THE PRICE HE INDUCED OR RECEIVED
WAS LOWER THAN THAT OFFERED OTHER BUYERS IS NOT SUFFICIENT TO SHIFT TO
THE BUYER THE BURDEN OF INTRODUCING EVIDENCE TO SHOW JUSTIFICATION. 
PP. 74-81. 

AUTOMATIC CANTEEN COMPANY OF AMERICA V. FEDERAL TRADE COMMISSION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN A PROCEEDING AGAINST PETITIONER UNDER SEC. 2(F) OF THE ROBINSON
PATMAN ACT, 15 U.S.C.  SEC. 13, THE FEDERAL TRADE COMMISSION ENTERED A
CEASE AND DESIST ORDER.  46 F.T.C. 861.  ON A PETITION FOR REVIEW, THE
COURT OF APPEALS AFFIRMED.  194 F.2D 433.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 809.   REVERSED AND REMANDED, P. 82. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE ROBINSON-PATMAN ACT, 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, SEC. 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. 

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, (FN1) HOLDING THAT THE
COMMISSION'S PRIMA FACIE CASE UNDER SEC. 2(F) DOES NOT REQUIRE SHOWING
ABSENCE OF A COST JUSTIFICATION.  194 F.2D 433. 

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, SEC. 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. 

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. SEC. 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., 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.  (FN2)  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." 

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. 

WE ARE HERE ASKED TO SETTLE A CONTROVERSY INVOLVING SIMPLY THE BURDEN
OF COMING FORWARD WITH EVIDENCE UNDER SEC. 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, (FN3) 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.  (FN4) 

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 WRITEEN 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. 

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. 

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.  (FN5)  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. 
(FN6)  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.  (FN7) 

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 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.  (FN8)  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. 

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 SEC. 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.  (FN9)  IT IS THEREFORE APPARENT
THAT THE DISCRIMINATORY PRICE THAT BUYERS ARE FORBIDDEN BY SEC. 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"; (FN10) THE
"DISCRIMINATION IN PRICE" IN SEC.  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," SEC. 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
SECS. 2(A) AND 2(B).    THIS IS NOT TO SAY, HOWEVER, THAT THE CONVERSE
FOLLOWS, FOR SEC. 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 SEC. 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 SEC. 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." 

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.  (FN11) 

THE COMMISSION ALSO URGES, FROM LEGISLATIVE EXPLANATION OF SIMILAR
LANGUAGE IN SEC.  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.  (FN12)
WHILE WE NEED NOT DECIDE WHETHER SYSTEMATIC RECEIPT OF PRICES IN
ITSELF COULD EVER BE SUFFICIENT TO GIVE THE BUYER THE REQUISITE
KNOWLEDGE, (FN13) WE THINK, AS THE ARGUMENT ITSELF RECOGNIZES, THAT THE
INQUIRY MUST BE INTO THE BUYER'S KNOWLEDGE OF THE ILLEGALITY. 

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 SEC. 2(F) MAKING IT
UNLAWFUL ONLY TO INDUCE OR RECEIVE PRICES KNOWN TO BE PROHIBITED
DISCRIMINATIONS.  (FN14) FOR SEC. 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.   (FN15)  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.  (FN16)  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 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 US TO ACCEPT ITS CONCLUSION.  CF. EASTERN-CENTRAL MOTOR
CARRIERS ASSN. V. UNITED STATES, 321 U.S. 194, 211-212. 

WE THEREFORE CONCLUDE THAT A BUYER IS NOT LIABLE UNDER SEC. 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 US 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. 

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 SEC. 2(B) OF
THE ROBINSON-PATMAN ACT WHICH ATTEMPTS TO LAY DOWN THE RULES OF
EVIDENCE UNDER THE ACT.  (FN17)  THAT SECTION PROVIDES, "UPON PROOF
BEING MADE ...  THAT THERE HAS BEEN DISCRIMINATION IN 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
THAT WE HELD IN THE MORTON SALT CASE THAT THE BURDEN OF SHOWING A COST
JUSTIFICATION IS ON THE SELLER IN A SEC. 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 SEC. 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 SEC.  2(F)
DIFFERS FROM SEC. 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 SEC. 2(F) IS MADE OUT WITH A SHOWING OF THE PRIMA FACIE CASE
OF SEC. 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)." 

WE NEED NOT CONCERN OURSELVES WITH THE COMMISSION'S INTERPRETATION OF
THE WORDS "PRIMA-FACIE CASE THUS MADE" IN SEC. 2(B) AND THE RESULTING
CONCLUSION THAT IF SEC. 2(A) AND SEC. 2(F) ARE TO BE READ AS
COUNTERPARTS, THE ELEMENTS NECESSARY FOR A PRIMA FACIE CASE UNDER SEC.
2(A) ARE SUFFICIENT FOR A PRIMA FACIE SHOWING OF THE "DISCRIMINATION IN
PRICE WHICH IS PROHIBITED BY THIS SECTION" IN SEC. 2(F).  HOWEVER THAT
MAY BE, THE COMMISSION RECOGNIZES THAT THERE IS AN "ADDITIONAL ELEMENT"
RESULTING FROM THE WORD "KNOWINGLY" IN SEC. 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 SEC. 2(A) AND SEC. 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 SEC. 2(F) ABOVE
AND BEYOND THAT OF SEC. 2(A). 

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 SEC. 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, (FN18) THE BURDEN OF
INTRODUCING EVIDENCE SHIFTS TO THE BUYER.  THE COMMISSION'S MAIN
RELIANCE IN THIS ARGUMENT IS SEC. 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. 

TO THIS IT IS ANSWERED THAT ALTHOUGH SEC. 2(B) DOES SPEAK NOT OF THE
SELLER BUT OF THE "PERSON CHARGED WITH A VIOLATION OF THIS SECTION,"
OTHER LANGUAGE IN SEC. 2(B) AND ITS PROVISO SEEMS DIRECTED MAINLY TO
SELLERS, (FN19) THAT THE LEGISLATIVE CHRONOLOGY OF THE VARIOUS
PROVISIONS ULTIMATELY RESULTING IN THE ROBINSON-PATMAN ACT INDICATES
THAT SEC.  2(B) WAS DRAFTED WITH SELLERS IN MIND, AND THAT THE FEW
CASES SO FAR DECIDED HAVE DEALT ONLY WITH SELLERS. 

A CONFIDENT ANSWER CANNOT BE GIVEN; SOME ANSWER MUST BE GIVEN.  WE
THINK WE MUST READ THE INFELICITOUS LANGUAGE OF SEC. 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. 
(FN20)  IF SEC. 2(B) IS TO APPLY TO SEC. 2(F), ALTHOUGH WE DO NOT
DECIDE THAT IT DOES BECAUSE WE REACH THE SAME RESULT WITHOUT IT, WE
THINK IT MUST BE SO READ.  CONSIDERATIONS OF FAIRNESS AND CONVENIENCE
OPERATIVE IN OTHER PROCEEDINGS MUST, WE THINK, HAVE BEEN CONTROLLING IN
THE DRAFTING OF SEC. 2(B), FOR IT WOULD REQUIRE FAR CLEARER LANGUAGE
THAN WE HAVE HERE TO REACH A CONTRARY RESULT.  CF. ADDISON V. HOLLY
HILL CO., 322 U.S. 607, 617-618.  IF THAT IS SO, HOWEVER, DECISIONS
STRIKING THE BALANCE OF CONVENIENCE FOR COMMISSION PROCEEDINGS AGAINST
SELLERS ARE BESIDE THE POINT.  (FN21)  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 SEC. 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."  (FN22)  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 SEC. 2(B) TO SAY THAT THE
BURDEN OF COMING FORWARD WITH EVIDENCE AS TO COSTS (FN23) 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. 

IF THE REQUIREMENT OF KNOWLEDGE IN SEC. 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
SEC. 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 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.    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; (FN24) 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. 

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.  CF. NOTE, EDMUND M. MORGAN, 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. 

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. 

FN1  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, 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. 

FN2  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 COMMERCE, EITHER DIRECTLY OR
INDIRECTLY, TO DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF
COMMODITIES OF LIKE GRADE AND QUALITY, WHERE EITHER OR ANY OF THE
PURCHASES INVOLVED IN SUCH DISCRIMINATION ARE IN COMMERCE, WHERE SUCH
COMMODITIES ARE SOLD FOR USE, CONSUMPTION, OR RESALE WITHIN THE UNITED
STATES OR ANY TERRITORY THEREOF OR THE DISTRICT OF COLUMBIA OR ANY
INSULAR POSSESSION OR OTHER PLACE UNDER THE JURISDICTION OF THE UNITED
STATES, AND WHERE THE EFFECT OF SUCH DISCRIMINATION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY
LINE OF COMMERCE, OR TO INJURE, DESTROY, OR PREVENT COMPETITION WITH
ANY PERSON WHO EITHER GRANTS OR KNOWINGLY RECEIVES THE BENEFIT OF SUCH
DISCRIMINATION, OR WITH CUSTOMERS OF EITHER OF THEM: 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 SEC. 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." 

FN3  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 SEC. 2(F) SUCH AS THAT HERE, WHERE DISCRIMINATORY
SALES WERE ALLEGED TO HAVE BEEN MADE BY ABOUT 80 OF THE BUYER'S 115
SUPPLIERS. 

FN4  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 BUSINESSMAN.  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 OF
INDUCEMENT OF A PREFERENCE JUSTIFIED AN INFERENCE OF KNOWLEDGE AS TO
COSTS. 

FN5  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-PATMAN ACT OF 1936, 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, DEFENSES 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. 

FN6  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 THAAT SUCH MATERIALS LACK THE OBJECTIVITY AND
RELEVANCE OF THE APPROVED METHOD OF ANALYSIS."  NOTE, 65 HARV. L. REV.
1011, 1013-1014.  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. 

FN7  SEE, E.G., WARMACK, SUPRA, NOTE 5, AT 107, 110. 

FN8  CF. LONGMAN, DISTRIBUTION COST ANALYSIS, 250, AND ARTICLES CITED
SUPRA, NOTE 5. 

FN9  SEE, E.G., 80 CONG. REC. 6428, 9419; H.R. REP. NO. 2951, 74TH
CONG., 2D SESS. 8. 

FN10  WERE THAT THE CASE, IT MIGHT STRICTLY BE ARGUED THAT THE
SELLER'S "DEFENSES" ARE NOT RELEVANT IN A SEC. 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 & COMTEMP.  PROB.  273, 291.  IN ANY EVENT, CONTROVERSY
OVER THE MEANING OF THE ISOLATED PHRASE "DISCRIMINATION IN PRICE" IS
BESIDE THE POINT HERE. 

FN11  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. 

FN12  SEE H.R. REP. NO. 2951, 74TH CONG., 2D SESS. 5-6, EXPLAINING
THE LANGUAGE IN SEC.  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 SEC. 2(F) THAT THIS INTERPRETATION DOES NOT PRESENT A
CONTRADICTION BETWEEN IT AND OUR READING OF SEC. 2(F). 

FN13  SEE PP. 80-81, POST. 

FN14  WE OF COURSE DO NOT, IN SO READING SEC. 2(F), PURPORT TO PASS
ON THE QUESTION WHETHER A "DISCRIMINATION IN PRICE" INCLUDES THE
PROHIBITIONS IN SUCH OTHER SECTIONS OF THE ACT AS SECS. 2(D) AND 2(E). 

FN15  CONGRESSMAN UTTERBACK, IN PRESENTING THE CONFERENCE REPORT TO
THE HOUSE, SPOKE QUITE CLEARLY IN TERMS INDICATING THAT THE PROVISIONS
OF SEC. 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. 

FN16  CF. ADELMAN, EFFECTIVE COMPETITION AND THE ANTITRUST LAWS, 61
HARV. L. REV. 1289, 1331; EDWARDS, MAINTAINING COMPETITION, 161. 

FN17  FEDERAL TRADE COMMISSION V. MORTON SALT CO., 334 U.S. 37, 44
45.  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 SEC. 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'N, 340 U.S. 231, IS REFERRED
TO ONLY WHEN WE SPEAK OF THE "PROVISO OF SEC. 2(B)." 

FN18  IN THIS CONNECTION, SEE SUPRA, NOTE 4, AND POST, NOTE 24. 

FN19  FOR EXAMPLE, THE LANGUAGE OF THE PROVISO OF SEC. 2(B)
CONCERNING PRICE DIFFERENTIALS MADE TO MEET COMPETITION REFERS ONLY TO
"A SELLER"; FURTHER, THE AUTHORITY GIVEN THE COMMISSION UNDER SEC. 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.    FN20  CONGRESSMAN PATMAN,
DESCRIBING THE SEC. 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. 

FN21  IT DOES NOT AID UNDERSTANDING TO SUGGEST THAT SEC. 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 SEC. 2(F), BECOME A BUYER'S BURDEN TO SHOW THE SELLER'S
COST.  NOR HAS FEDERAL TRADE COMMISSION V. STALEY MFG. CO., 324 U.S.
746, 759-760, ANY 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 SEC. 2(B). 

FN22  80 CONG. REC. 3599.  SAMUEL H. MOSS, INC. V. FEDERAL TRADE
COMMISSION, 148 F.2D 378, 379; 80 CONG. REC. 8241. 

FN23  OUR VIEW THAT SEC. 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 SEC. 2(F) MIGHT BE AVAILABLE TO A BUYER
MORE READILY EVEN THAN TO A SELLER. 

FN24  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, P. 67.  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. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE REED
CONCUR, DISSENTING. 

THIS DECISION IS A GRAPHIC ILLUSTRATION OF THE WAY IN WHICH A STATUTE
CAN BE READ WITH ENERVATING EFFECT. 

ROBINSON-PATMAN ACT, 49 STAT. 1526, 15 U.S.C. SEC. 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  ...  ." 

"KNOWINGLY TO INDUCE OR RECEIVE A DISCRIMINATION IN PRICE WHICH IS
PROHIBITED BY THIS SECTION." 

THE WORDS "THE PERSON CHARGED" AS USED IN SEC. 2(B) AND THE WORDS
"ANY PERSON" USED IN SEC. 2(F) PLAINLY INCLUDE BUYERS AS WELL AS
SELLERS. 

THE NATURE OF THE DISCRIMINATION CONDEMNED IS MADE CLEAR IN SEC.
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. 

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 SEC. 2(B)
REQUIRES THE PERSON SHOWN TO HAVE PRACTICED 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. STALEY
MFG. CO., 324 U.S. 746, 759-760, APPROVED IN STANDARD OIL CO. V.
FEDERAL TRADE COMMISSION, 340 U.S. 231, ARE ON A KNOWING SELLER WHO
GRANTS THEM. 

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: 

"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 

"         ALLEGED SAVINGS        CO.          CORP. 

(1)  FREIGHT SAVINGS OF           6%         5% TO 7% 

(2)  SALES COST SAVINGS OF               7%               7% 

(3)  24-COUNT CARTONS SAVINGS OF           5%               5% 

(4)  RETURN AND ALLOWANCES SAVINGS OF      1%         1% TO 2% 

(5)  FREE DEALS AND SAMPLES SAVINGS OF     8%         2% TO X% 

(6)  SHIPPING AND CONTAINERS SAVINGS OF               1% TO 2% 

TOTAL DEDUCTIONS                          27%        21% TO 25% 

"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 TO IT." 

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.  THE CONGRESS PLAINLY ENDEAVORED TO CURB THE BUYER OF 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. 

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. 

*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. 
..END :







FEDERAL COMMUNICATIONS COMMISSION V. RCA COMMUNICATIONS, INC. 346 U.S.
86 


NO. 567.  ARGUED APRIL 29-30, 1953 - DECIDED JUNE 8, 1953 - 91 U.S. APP.
D.C. 289, 201 F.2D 694, VACATED AND REMANDED. 


UNDER THE FEDERAL COMMUNICATIONS ACT OF 1934, THE COMMISSION
AUTHORIZED A RADIOTELEGRAPH COMPANY, WHICH WAS THEN SERVING 39 OVERSEAS
POINTS, TO OPEN TWO NEW CIRCUITS, TO PORTUGAL AND THE NETHERLANDS.  THE
AUTHORIZATION WAS OPPOSED BY ANOTHER COMPANY WHICH PROVIDED SIMILAR
SERVICE BY MEANS OF 65 CIRCUITS, INCLUDING CIRCUITS TO EACH OF THOSE
COUNTRIES.  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,
WHERE COMPETITION IS "REASONABLY FEASIBLE," IT IS IN THE PUBLIC
INTEREST.  HELD: 

1.  ON THE RECORD IN THIS CASE, THE COMMISSION'S AUTHORIZATION CANNOT
BE SUSTAINED.  PP.  87-97. 

(A)  IN REVIEWING SUCH A DECISION OF THE COMMISSION, CONGRESS HAS
CHARGED THE COURTS WITH THE RESPONSIBILITY OF DETERMINING WHETHER THE
COMMISSION HAS FAIRLY EXERCISED ITS DISCRETION WITHIN THE BOUNDS
EXPRESSED BY THE STANDARD OF "PUBLIC INTEREST" AND WHETHER THE
COMMISSION HAS BEEN GUIDED BY PROPER CONSIDERATIONS IN BRINGING ITS
EXPERIENCE AND EXPERT JUDGMENT TO BEAR ON APPLICATIONS FOR LICENSES IN
THE PUBLIC INTEREST.  PP. 90-91. 

(B)  ENCOURAGEMENT OF COMPETITION AS SUCH IS NOT THE SINGLE OR
CONTROLLING RELIANCE FOR SAFEGUARDING THE PUBLIC INTEREST IN THE FIELD
OF RADIOTELEGRAPH COMMUNICATION; AND THIS CONSIDERATION, STANDING
ALONE, IS NOT SUFFICIENT TO JUSTIFY AN AUTHORIZATION TO DUPLICATE
EXISTING SERVICES WHENEVER COMPETITION IS REASONABLY FEASIBLE.  PP. 89
95. 

(C)  IN GRANTING THE AUTHORIZATION IN THIS CASE, THE COMMISSION DID
NOT PROPERLY DISCHARGE ITS RESPONSIBILITY, BECAUSE ITS ACTION WAS NOT
BASED ON ITS OWN JUDGMENT AS TO WHAT WAS IN THE PUBLIC INTEREST BUT ON
ITS UNJUSTIFIED ASSUMPTION THAT CONGRESS THOUGHT AUTHORIZATIONS FOR THE
SOLE PURPOSE OF ENCOURAGING COMPETITION WERE DESIRABLE.  PP. 95-96. 

(D)  IF THE COMMISSION, IN THE EXERCISE OF ITS OWN JUDGMENT, REACHES
A CONCLUSION THAT DUPLICATING AUTHORIZATIONS ARE IN THE PUBLIC INTEREST
WHEREVER COMPETITION IS REASONABLY FEASIBLE, IT NEED NOT MAKE SPECIFIC
FINDINGS OF TANGIBLE BENEFIT; BUT THERE MUST BE GROUND FOR REASONABLE
EXPECTATION THAT COMPETITION MAY HAVE SOME BENEFICIAL EFFECT.  PP. 96
97. 

2.  THE COMMISSION'S AUTHORIZATION IN THIS CASE DOES NOT VIOLATE SEC.
314 OF THE COMMUNICATIONS ACT BY REASON OF THE CORPORATE AFFILIATION OF
THE RADIOTELEGRAPH COMPANY WITH THE CABLE COMPANY IN QUESTION - THE
COMMISSION HAVING DETERMINED, UPON ADEQUATE FINDINGS, THAT THE GRANT OF
SUCH AUTHORIZATION WOULD NOT DECREASE COMPETITION.  PP. 97-98. 

FEDERAL COMMUNICATIONS COMMISSION V. RCA COMMUNICATIONS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 568, MACKAY RADIO & TELEGRAPH CO., INC. V. RCA
COMMUNICATIONS, INC., ALSO ON CERTIORARI TO THE SAME COURT. 

ON REVIEW BY THE COURT OF APPEALS, AN ORDER OF THE FEDERAL
COMMUNICATIONS COMMISSION WAS REVERSED.   91 U.S. APP. D.C. 289, 201
F.2D 694.  THIS COURT GRANTED CERTIORARI.  345 U.S. 902.  JUDGMENT
VACATED AND CASE REMANDED, P. 98. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

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 SEC. 314 OF THE
FEDERAL COMMUNICATIONS ACT. 

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, 294, 201 F.2D 694, 699,
PRETTYMAN, J., DISSENTING. 

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. 

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.  (FN1)  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. 
(FN2)  SEE NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190,
212.  CONGRESS THEREUPON, IN THE RADIO ACT OF 1927, CREATED THE FEDERAL
RADIO COMMISSION WITH WIDE LICENSING AND REGULATORY POWERS OVER
INTERSTATE AND FOREIGN COMMERCE. 

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.  THE STATUTORY STANDARD NO DOUBT LEAVES
WIDE DISCRETION AND CALLS FOR IMAGINATIVE INTERPRETATION.  NOT A
STANDARD THAT LENDS ITSELF TO APPLICATION WITH EXACTITUDE, IT EXPRESSES
A POLICY, BORN OF YEARS OF UNHAPPY TRIAL AND ERROR, THAT IS "AS
CONCRETE AS THE COMPLICATED FACTORS FOR JUDGMENT IN SUCH A FIELD OF
DELEGATED AUTHORITY PERMIT."  FEDERAL COMMUNICATIONS COMM'N V.
POTTSVILLE BROADCASTING CO., 309 U.S. 134, 138. 

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. SEC.
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. 

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., DUPLICATION 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. 

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'N V. NELSON BROS. CO.,
289 U.S. 266, 276. 

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, THIS COURT HAS NOT HELD THAT
COMPETITION IS AN ABSOLUTE.  SEE CHICAGO BOARD OF TRADE V. UNITED
STATES, 246 U.S. 231; CF. MASON, MONOPOLY IN LAW AND ECONOMICS, 47 YALE
L.J. 34. 

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 ASSN., 166 U.S. 290, AND
UNITED STATES V. JOINT TRAFFIC ASSN., 171 U.S. 505, WITH THE
TRANSPORTATION ACT OF 1920, 41 STAT. 456, 480; CONSOLIDATION OF
RAILROADS, 63 I.C.C. 455. 

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.  (FN3)  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.  (FN4) 

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. 
(FN5)  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.  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.  (FN6)  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. 

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 USE 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.  (FN7)  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. 

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 CONF. V. UNITED STATES, 342 U.S. 570, 575.  IN THE NATURE OF
THINGS, THE POSSIBLE BENEFITS OF COMPETITION DO NOT LEND THEMSELVES TO
DETAILED FORECAST, CF. LABOR BOARD V. SEVEN-UP CO., 344 U.S. 344, 348,
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. 

RCAC ASKS US TO UPHOLD THE COURT OF APPEALS DECISION ON ANOTHER
GROUND, THAT THE GRANT OF AUTHORIZATION TO MACKAY WOULD VIOLATE SEC.
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 SEC. 314. 

RCAC'S ARGUMENTS BASED ON COMPARABLE LANGUAGE IN THE CLAYTON ACT 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 SEC. 314. 

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. 

FN1  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). 

FN2  SEE HOOVER V. INTERCITY RADIO CO., 52 APP. D.C. 339, 286 F.
1003; UNITED STATES V. ZENITH RADIO CORP., 12 F.2D 614; 35 OP. ATTY.
GEN. 126. 

FN3  SEE DONOVAN, THE ORIGIN AND DEVELOPMENT OF RADIO LAW, 21-26. 

FN4  WE NEED NOT IN THIS CASE ATTEMPT TO SUGGEST WITH ANY PRECISION
WHERE THE BALANCE IS STRUCK.  CERTAINLY THE PRESENCE OF SECS. 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." 

FN5  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.) 

FN6  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. 

FN7  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 & TEL. 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 337, 97
F.2D, AT 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 339, 97 F.2D, AT 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 294,
295, 201 F.2D, 699, 700. 

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. 

MR. JUSTICE REED AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

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: 

- EXISTING FACILITIES ARE IN EXCESS OF THOSE REQUIRED TO HANDLE
PRESENT AND EXPECTED TRAFFIC. 

- THE PROPOSED OPERATIONS WILL REDISTRIBUTE PRESENT TRAFFIC RATHER
THAN GENERATE NEW TRAFFIC. 

- THE PROPOSED SERVICE WILL NOT LOWER RATES NOR SPEED UP TRANSMISSION
NOR IMPROVE THE EXISTING SERVICE IN ANY RESPECT. 

- THE PROPOSED SERVICE WILL AID MACKAY FINANCIALLY AND BE DETRIMENTAL
TO RCA. 

- THIS IS A FIELD WHERE WITHOUT THE PROPOSED SERVICE THERE IS ACTIVE
COMPETITION AND AN EXCESS OF FACILITIES TO MEET PRESENT OR EXPECTED
NEEDS. 

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. 
..END :



















DISTRICT OF COLUMBIA V. JOHN R. THOMPSON CO., INC. 346 U.S. 100 


NO. 617.  ARGUED APRIL 30, MAY 1, 1953 - DECIDED JUNE 8, 1953 - 92 U.S.
APP. D.C. 34, 203 F.2D 579, REVERSED. 


1.  UNDER ART. I, SEC. 8, CL. 17 OF THE FEDERAL CONSTITUTION, CONGRESS
HAD POWER TO DELEGATE ITS LAWMAKING AUTHORITY TO THE LEGISLATIVE
ASSEMBLY OF THE MUNICIPAL CORPORATION CREATED BY THE ORGANIC ACT OF
1871 FOR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA.  PP. 104-110. 

(A)  THE POWER OF CONGRESS UNDER ART. I, SEC. 8, CL. 17 OF THE
CONSTITUTION TO GRANT SELF-GOVERNMENT TO THE DISTRICT OF COLUMBIA IS AS
GREAT AS ITS AUTHORITY TO DO SO IN THE CASE OF TERRITORIES.  PP. 106
107. 

(B)  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.  P. 108. 

(C)  THE CONSTITUTION DOES NOT PRECLUDE DELEGATION BY CONGRESS TO THE
DISTRICT OF COLUMBIA OF FULL LEGISLATIVE POWER, SUBJECT TO
CONSTITUTIONAL LIMITATIONS TO WHICH ALL LAWMAKING IS SUBSERVIENT AND TO
THE POWER OF CONGRESS AT ANY TIME TO REVISE, ALTER, OR REVOKE THE
AUTHORITY GRANTED.  PP. 108-109. 

(D)  IN THE PROVISION OF ART. I, SEC. 8, CL. 17 OF THE CONSTITUTION,
EMPOWERING CONGRESS "TO EXERCISE EXCLUSIVE LEGISLATION" OVER THE
DISTRICT OF COLUMBIA, THE WORD "EXCLUSIVE" WAS EMPLOYED TO ELIMINATE
ANY POSSIBILITY THAT THE LEGISLATIVE POWER OF CONGRESS OVER THE
DISTRICT WOULD BE DEEMED CONCURRENT WITH THAT OF THE CEDING STATES; AND
IT DOES NOT MAKE THE POWER NONDELEGABLE.  PP. 109-110. 

2.  WITHIN THE MEANING OF SEC. 18 OF THE ORGANIC ACT OF 1871, THE
"RIGHTFUL SUBJECTS OF LEGISLATION" TO WHICH THE LEGISLATIVE POWER OF
THE DISTRICT OF COLUMBIA GOVERNMENT EXTENDED WAS AS BROAD AS THE POLICE
POWER OF A STATE, AND INCLUDED A LAW PROHIBITING DISCRIMINATIONS
AGAINST NEGROES BY RESTAURANTS IN THE DISTRICT OF COLUMBIA.  P. 110. 

3.  IN A CRIMINAL PROCEEDING IN THE DISTRICT OF COLUMBIA, RESPONDENT
WAS PROSECUTED FOR REFUSAL TO SERVE CERTAIN MEMBERS OF THE NEGRO RACE
AT ONE OF ITS RESTAURANTS IN THE DISTRICT OF COLUMBIA SOLELY ON ACCOUNT
OF THE RACE AND COLOR OF THOSE PERSONS.  THE INFORMATION WAS IN FOUR
COUNTS, THE FIRST CHARGING A VIOLATION OF THE ACT OF THE LEGISLATIVE
ASSEMBLY OF THE DISTRICT OF COLUMBIA, JUNE 20, 1872, AND THE OTHERS
CHARGING VIOLATIONS OF THE ACT OF THE LEGISLATIVE ASSEMBLY OF THE
DISTRICT OF COLUMBIA, JUNE 26, 1873.  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.  HELD:  THE ACTS OF 1872 AND 1873
SURVIVED SUBSEQUENT CHANGES IN THE GOVERNMENT OF THE DISTRICT OF
COLUMBIA AND ARE PRESENTLY ENFORCEABLE, EXCEPT THAT THE COURT DOES NOT
REACH THE QUESTION WHETHER THE 1872 ACT WAS REPEALED BY THE 1873 ACT
AND LEAVES THAT QUESTION OPEN ON REMAND OF THE CAUSE TO THE COURT OF
APPEALS.  PP. 110-118. 

(A)  THE ACTS OF 1872 AND 1873 ARE NOT INCONSISTENT WITH THE ACTS OF
CONGRESS OF 1874 AND 1878, AND THEY SURVIVED THE LATTER ACTS.  PP. 110
111. 

(B)  THE ACTS OF 1872 AND 1873 WERE NOT REPEALED BY THE CODE OF 1901,
SINCE, AS ANTI-DISCRIMINATION LAWS GOVERNING RESTAURANTS IN THE
DISTRICT, THEY ARE "POLICE REGULATIONS" AND ACTS "RELATING TO MUNICIPAL
AFFAIRS" WITHIN THE MEANING OF THE THIRD EXCEPTION IN SEC.  1636 OF THE
CODE.  PP. 112-113. 

(C)  THE ACTS OF 1872 AND 1873 WERE NOT ABANDONED OR REPEALED AS A
RESULT OF NON-USE AND ADMINISTRATIVE PRACTICE.  THE FAILURE OF THE
EXECUTIVE BRANCH TO ENFORCE A LAW DOES NOT RESULT IN ITS MODIFICATION
OR REPEAL.  PP. 113-115. 

(D)  THE ACTS OF 1872 AND 1873 MERELY REGULATE A LICENSED BUSINESS,
AND (WITH THE POSSIBLE EXCEPTION OF THE PROVISION MAKING MANDATORY THE
FORFEITURE OF THE LICENSE TO OPERATE A RESTAURANT) COULD NOT BE
MODIFIED, ALTERED, OR REPEALED BY THE EXERCISE OF THE LICENSING
AUTHORITY OF THE COMMISSIONERS.  PP. 115-117. 

(E)  CASES OF HARDSHIP WHERE CRIMINAL LAWS SO LONG IN DISUSE AS TO BE
NO LONGER KNOWN TO EXIST ARE ENFORCED AGAINST INNOCENT PARTIES, DO NOT
BEAR ON THE CONTINUING VALIDITY OF THE LAW; THAT IS ONLY AN
AMELIORATING FACTOR IN ENFORCEMENT.  P. 117. 

DISTRICT OF COLUMBIA V. JOHN R. THOMPSON CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

IN A CRIMINAL PROSECUTION IN THE DISTRICT OF COLUMBIA, ON AN
INFORMATION CHARGING RESPONDENT WITH VIOLATIONS OF ACTS OF 1872 AND
1873 OF THE LEGISLATIVE ASSEMBLY OF THE DISTRICT OF COLUMBIA, THE COURT
OF APPEALS HELD THE ACTS UNENFORCEABLE AND ORDERED DISMISSAL OF THE
INFORMATION.  92 U.S. APP. D.C. 34, 203 F.2D 579.  THIS COURT GRANTED
CERTIORARI.  345 U.S. 921.  REVERSED AND REMANDED, P. 118. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CRIMINAL PROCEEDING PROSECUTED BY INFORMATION AGAINST
RESPONDENT FOR REFUSAL TO SERVE CERTAIN MEMBERS OF THE NEGRO RACE AT
ONE OF 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, (FN1) JUNE 20, 1872, AND THE
OTHERS CHARGING VIOLATIONS OF THE ACT OF THE LEGISLATIVE ASSEMBLY OF
THE DISTRICT OF COLUMBIA, (FN2) JUNE 26, 1873, DIST. COL.  LAWS 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. 

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. 34, 203
F.2D 579.  THE CASE IS HERE ON CERTIORARI.  345 U.S. 921. 

                          I. 

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. 

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.  SEC. 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.  SECS. 5, 7.  THE ACT PROVIDED, WITH EXCEPTIONS NOT MATERIAL
HERE, (FN3) 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."  SEC. 18.  ALL ACTS OF THE LEGISLATIVE ASSEMBLY WERE MADE SUBJECT
AT ALL TIMES "TO REPEAL OR MODIFICATION" BY CONGRESS.  SEC. 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."  SEC. 18.  EXECUTIVE POWER
WAS VESTED IN A GOVERNOR APPOINTED BY THE PRESIDENT BY AND WITH THE
ADVICE OF THE SENATE.  SEC. 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.  SEC. 34. 

THIS GOVERNMENT (WHICH WAS SHORT-LIVED (FN4) ) WAS CHARACTERIZED BY
THE COURT AS A "TERRITORIAL GOVERNMENT."  ECKLOFF V. DISTRICT OF
COLUMBIA, 135 U.S. 240, 241.  THE ANALOGY IS AN APT ONE.  THE GRANT TO
THE LEGISLATIVE ASSEMBLY BY SEC. 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. SEC. 1851. 

THE POWER OF CONGRESS OVER THE DISTRICT AND ITS POWER OVER THE
TERRITORIES ARE PHRASED IN VERY SIMILAR LANGUAGE IN THE CONSTITUTION. 
ARTICLE I, SEC. 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, SEC. 3, CL. 2 OF THE CONSTITUTION GRANTS CONGRESS AUTHORITY
OVER TERRITORIES IN THE FOLLOWING WORDS: 

"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  ...  ." 

THE POWER OF CONGRESS TO DELEGATE LEGISLATIVE POWER TO A TERRITORY IS
WELL SETTLED.  SIMMS V. SIMMS, 175 U.S. 162, 168; BINNS V. UNITED
STATES, 194 U.S. 486, 491; CHRISTIANSON V. KING COUNTY, 239 U.S. 356,
365.  THE POWER WHICH CONGRESS CONSTITUTIONALLY MAY DELEGATE TO A
TERRITORY (SUBJECT OF COURSE TO "THE RIGHT OF CONGRESS TO REVISE,
ALTER, AND REVOKE," HORNBUCKLE V. TOOMBS, 18 WALL.  648, 655) COVERS
ALL MATTERS "WHICH, WITHIN THE LIMITS OF A STATE, ARE REGULATED BY THE
LAWS OF THE STATE ONLY."  (FN5)  SIMMS V. SIMMS, SUPRA, P. 168. 

THE POWER OF CONGRESS TO GRANT SELF-GOVERNMENT TO THE DISTRICT OF
COLUMBIA UNDER ART. I, SEC. 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, AND METROPOLITAN R. CO. V. DISTRICT OF COLUMBIA,
132 U.S. 1.  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.
SHELBY COUNTY, 120 U.S. 489, 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. 

THE SECOND OF THESE CASES, METROPOLITAN R. CO. V. DISTRICT OF
COLUMBIA, 132 U.S. 1, 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,
WHILST THE DISTRICT MAY, IN A SENSE, BE CALLED A STATE, IT IS SUCH IN A
VERY QUALIFIED SENSE."  P. 9.  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. 

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.  AND SEE STOUTENBURGH V.
HENNICK, SUPRA, P. 147.  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, IN CONSTRUING THE ORGANIC ACT
OF FEBRUARY 21, 1871, THE ONE WITH WHICH WE ARE PRESENTLY CONCERNED,
STATED: 

"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." 

THIS IS THE THEORY WHICH UNDERLIES THE CONSTITUTIONAL PROVISIONS OF
SOME STATES ALLOWING CITIES TO HAVE HOME RULE.  (FN6)  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), SEC. 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 ASSN. V. CORSI, 326 U.S. 88, 93-94; BOB-LO EXCURSION
CO. V. MICHIGAN, 333 U.S. 28, 34.  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. 

THERE IS, HOWEVER, A SUGGESTION THAT THE POWER OF CONGRESS "TO
EXERCISE EXCLUSIVE LEGISLATION" GRANTED BY ART. I, SEC. 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; 3 ELLIOT'S DEBATES (2D ED. 1876),
PP. 432-433; 2 STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES (4TH ED. 1873), SEC. 1218.  MADISON SUMMED UP THE NEED FOR AN
"EXCLUSIVE" POWER IN THE CONGRESS AS FOLLOWS: 

"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.  HOW COULD THE GENERAL GOVERNMENT BE
GUARDED FROM THE UNDUE INFLUENCE OF PARTICULAR STATES, OR FROM INSULTS,
WITHOUT SUCH EXCLUSIVE POWER?"  ELLIOT'S OP. CIT., SUPRA, P. 433. 

WE CONCLUDE THAT THE CONGRESS HAD THE AUTHORITY UNDER ART. I, SEC. 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 SEC. 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. 

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.  SEC. 2.  THE REVISED STATUTES RELATING TO THE DISTRICT OF
COLUMBIA, APPROVED JUNE 20, 1874, (FN7) 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."  SEC. 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."  SEC. 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, AT P.
7, SAYS, THE "LEGISLATIVE POWERS" OF THE DISTRICT CEASED WITH THE
ORGANIC ACT AND THEREAFTER MUNICIPAL GOVERNMENT WAS CONFINED "TO MERE
ADMINISTRATION." 

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."  (FN8)  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. 

"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: 

"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  ...  ." 

THE COURT OF APPEALS HELD THAT THESE ANTI-DISCRIMINATION LAWS WERE
"GENERAL AND PERMANENT" LEGISLATION WITHIN THE MEANING OF SEC. 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 SEC. 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. 

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 SEC.
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: 

"A MUNICIPAL ORDINANCE OR POLICE REGULATION IS PECULIARLY APPLICABLE
TO THE INHABITANTS OF A PARTICULAR PLACE; IN OTHER WORDS, IT IS LOCAL
IN CHARACTER." 

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 SEC. 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."  P.
522.  REGULATION OF PUBLIC EATING AND DRINKING ESTABLISHMENTS IN THE
DISTRICT HAS BEEN DELEGATED BY CONGRESS TO THE MUNICIPAL GOVERNMENT
FROM THE VERY BEGINNING.  (FN9)  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. 

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; UNITED STATES V. MORTON SALT CO., 338
U.S. 632, 647, 648.  THE REPEAL OF LAWS IS AS MUCH A LEGISLATIVE
FUNCTION AS THEIR ENACTMENT.  (FN10) 

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. 

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."  (FN11)  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, REGULATION OF
RESTAURANTS IS A MATTER PLAINLY WITHIN THE SCOPE OF POLICE
REGULATIONS.  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; (FN12) AND FROM THAT THE
CONCLUSION IS DRAWN THAT ONLY CONGRESS COULD THEREAFTER AMEND OR REPEAL
THESE ENACTMENTS OF THE LEGISLATIVE ASSEMBLY. 

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. 

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.  (FN13)  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. 

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, (FN14) 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, (FN15) 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.  (FN16)
NOR CAN WE DISCOVER ANY OTHER LEGISLATIVE FORCE WHICH HAS REMOVED THEM
FROM THE EXISTING BODY OF LAW. 

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. 

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 TO 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.   REVERSED. 

FN1  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." 

FN2  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." 

THE LICENSE AND A PROHIBITION AGAINST ITS REISSUANCE FOR A PERIOD OF
ONE YEAR AFTER THE FORFEITURE. 

FN3  THE LIMITATIONS IMPOSED ON THE STATES BY ART. I, SEC. 10 OF THE
CONSTITUTION WERE MADE APPLICABLE TO THE DISTRICT.  SEC. 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.  SEC. 17. 

FN4 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 PROCTOR,
WASHINGTON PAST AND PRESENT - A HISTORY (1930), VOL. I, PP. 130-141. 

FN5  THIS COURT HAS SUSTAINED THE VALIDITY OF TERRITORIAL STATUTES
DEALING WITH A VARIETY OF SUBJECTS:  CLINTON V. ENGLEBRECHT, 13 WALL. 
434 (REGULATION OF THE METHODS OF OBTAINING JURY PANELS); SNOW V.
UNITED STATES, 18 WALL.  317 (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 (REGULATION OF CIVIL PROCEDURE IN THE COURTS); MAYNARD V. HILL, 125
U.S. 190 (STATUTE GRANTING DIVORCE); COPE V. COPE, 137 U.S. 682
(REGULATION OF INTESTATE SUCCESSION OF PROPERTY); ATCHISON, T.&S.F.R.
CO. V. SOWERS, 213 U.S. 55 (LIMITATION ON THE RIGHT TO SUE FOR PERSONAL
INJURIES); CHRISTIANSON V. KING COUNTY, 239 U.S. 356 (PROVISION FOR
ESCHEAT). 

FN6  SEE ARIZ. CONST., ART. XIII, SEC. 2; CALIF. CONST., ART. XI,
SEC. 11; COLO. CONST., ART. XX, SEC. 6; MICH. CONST., ART. VIII, SEC.
21; MINN. CONST., ART. IV, SEC. 36; MO.  CONST., ART. VI, SEC. 19; NEB.
CONST., ART. XI, SECS. 2-4; NEW YORK CONST., ART. IX, SEC.  12; OHIO
CONST., ART. XVIII, SEC. 3; OKLA. CONST., ART. XVIII, SEC. 3(A); ORE. 
CONST., ART. XI, SEC. 2; TEX. CONST., ART. XI, SEC. 5; WASH. CONST.,
ART. XI, SEC. 10; W.VA. CONST., ART. VI, SEC. 39(A); WIS. CONST., ART.
XI, SEC. 3.  AND SEE FORDHAM AND ASHER, HOME RULE POWERS IN THEORY AND
PRACTICE, 9 OHIO ST. L.J. 18; MCGOLDRICK, THE LAW AND PRACTICE OF
MUNICIPAL HOME RULE (1933).    FN7  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, 43D CONGRESS, FIRST SESS., PP. 1286-1287.    FN8  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. 

FN9  SEE ACT OF MAY 3, 1802, 2 STAT. 195, 197 (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, 255 (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, 587 (AUTHORIZING THE
COUNCIL OF THE CITY OF WASHINGTON TO PROVIDE "FOR LICENSING, TAXING,
AND REGULATING, AUCTIONS, RETAILERS, ORDINARIES"). 

FN10  SEE SNOWDEN V. SNOWDEN, 1 BLAND (MD.)  550, 556; PEARSON V.
INTERNATIONAL DISTILLERY, 72 IOWA 348, 357, 34 N.W. 1, 5-6. 

WE ARE NOT CONCERNED HERE WITH THE TYPE OF PROBLEM PRESENTED BY
FEDERAL TRADE COMMISSION V. BUNTE BROS., 312 U.S. 349, 352, 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. 

FN11  SEE NOTE 8, SUPRA. 

FN12  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, SEC. 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." 

FN13  CONGRESS HAS GRANTED TO THE COMMISSIONERS AUTHORITY TO LICENSE
CERTAIN BUSINESSES, INCLUDING RESTAURANTS.  D.C. CODE (1951) SECS. 47
2301, 47-2327.  THE COMMISSIONERS ARE AUTHORIZED TO PROMULGATE
REGULATIONS GOVERNING THE ISSUANCE AND REVOCATION OF SUCH LICENSES. 
ID., SEC. 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, SEC.
19; REGULATION PERTAINING TO GARBAGE DISPOSAL, ART. XXI, SECS. 2, 3; A
REQUIREMENT THAT DRAPERIES AND DECORATIONS IN RESTAURANTS BE FIREPROOF,
ART. XVII, SEC.  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) SEC. 33-101 ET SEQ.; SEC. 22-3416
ET SEQ. RESTAURANTS WHICH SELL ALCOHOLIC BEVERAGES ARE REGULATED UNDER
D.C. CODE (1951) SEC. 25-101 ET SEQ. 

FN14  SEE NOTE 13, SUPRA. 

FN15  SEE NOTE 13, SUPRA. 

FN16  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) SECS. 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) SECS. 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. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















SECURITIES & EXCHANGE COMMISSION V. RALSTON PURINA CO. 346 U.S. 119 


NO. 512.  ARGUED APRIL 28, 1953 - DECIDED JUNE 8, 1953 - 200 F.2D 85,
REVERSED. 


WITHOUT COMPLYING WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OF 1933, A CORPORATION OFFERED SHARES OF ITS STOCK TO A NUMBER OF
ITS "KEY EMPLOYEES."  THESE EMPLOYEES WERE NOT SHOWN TO HAVE HAD ACCESS
TO THE KIND OF INFORMATION WHICH REGISTRATION UNDER THE ACT WOULD
DISCLOSE.  HELD: THESE TRANSACTIONS WERE NOT EXEMPTED UNDER SEC. 4(1)
OF THE ACT AS TRANSACTIONS "NOT INVOLVING ANY PUBLIC OFFERING."  PP.
120-127. 

(A)  A TRANSACTION "NOT INVOLVING ANY PUBLIC OFFERING," WITHIN THE
MEANING OF SEC. 4(1), IS ONE WITH PERSONS WHO DO NOT NEED THE
PROTECTION OF THE ACT.  PP. 124-125. 

(B)  THE NUMBER OF OFFEREES INVOLVED IS NOT DETERMINATIVE OF WHETHER
AN OFFERING IS "PUBLIC" WITHIN THE MEANING OF SEC. 4(1).  P. 125. 

(C)  THE SEC. 4(1) EXEMPTION DOES NOT DEPRIVE CORPORATE EMPLOYEES, AS
A CLASS, OF THE SAFEGUARDS OF THE ACT.  PP. 125-126. 

(D)  IN VIEW OF THE BROADLY REMEDIAL PURPOSES OF THE ACT, IT IS
REASONABLE TO PLACE ON AN ISSUER WHO PLEADS THE SEC. 4(1) EXEMPTION THE
BURDEN OF PROVING THAT THE PURCHASERS HAD ACCESS TO THE KIND OF
INFORMATION WHICH REGISTRATION UNDER THE ACT WOULD DISCLOSE.  PP. 126
127. 

SECURITIES & EXCHANGE COMMISSION V. RALSTON PURINA CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

ON A COMPLAINT BROUGHT BY THE SECURITIES AND EXCHANGE COMMISSION
UNDER SEC. 20(B) OF THE SECURITIES ACT OF 1933, SEEKING TO ENJOIN
RESPONDENT'S UNREGISTERED OFFERINGS OF ITS STOCK TO ITS EMPLOYEES, THE
DISTRICT COURT HELD THE EXEMPTION OF SEC. 4(1) APPLICABLE AND DISMISSED
THE SUIT.  102 F. SUPP. 964.  THE COURT OF APPEALS AFFIRMED.  200 F.2D
85.  THIS COURT GRANTED CERTIORARI.  345 U.S. 903.  REVERSED, P. 127. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

AN ISSUER NOT INVOLVING ANY PUBLIC OFFERING" (FN1) FROM THE
REGISTRATION REQUIREMENTS OF SEC. 5.  (FN2)  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
SEC. 20(B) OF THE ACT SEEKING TO ENJOIN RESPONDENT'S UNREGISTERED
OFFERINGS, THE DISTRICT COURT HELD THE EXEMPTION APPLICABLE AND
DISMISSED THE SUIT.  (FN3)  THE COURT OF APPEALS AFFIRMED.  (FN4)  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. 

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. 

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. 

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. 

THE SECURITIES ACT NOWHERE DEFINES THE SCOPE OF SEC. 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 SEC.
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.  (FN5)  THE EXEMPTION AS THUS DELIMITED
BECAME LAW.  (FN6)  IT ASSUMED ITS PRESENT SHAPE WITH THE DELETION OF
"NOT WITH OR THROUGH AN UNDERWRITER" BY SEC. 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. 

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.  (FN7)  IN SECURITIES AND
EXCHANGE COMM'N V. SUNBEAM GOLD MINES CO., 95 F.2D 699 (C.A. 9TH CIR.
1938), THIS POINT WAS MADE IN DEALING WITH AN OFFERING TO THE
STOCKHOLDERS OF TWO CORPORATIONS ABOUT TO BE MERGED.  JUDGE DENMAN
OBSERVED THAT: 

"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 RED-HEADED 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."  95 F.2D, AT 701. 

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."  (FN8)  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."  (FN9) 

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.  (FN10)  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 SEC. 4(1) SHOULD TURN ON
WHETHER THE PARTICULAR CLASS OF PERSONS AFFECTED NEEDS 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." 

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
SEC. 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.  (FN11)  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. 

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 SEC. 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.  (FN12) 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. 
(FN13) 

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., 205 U.S. 1, 10 (1907).  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 SEC. 5.  REVERSED. 

FN1  48 STAT. 77, AS AMENDED, 48 STAT. 906, 15 U.S.C. SEC. 77D. 

FN2  "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. SEC. 77E. 

FN3  102 F. SUPP. 964 (D.C.E.D. MO. 1952). 

FN4  200 F.2D 85 (C.A. 8TH CIR. 1952). 

FN5  "  ...  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 THAT TRANSACTION SHALL COME WITHIN THE
PURVIEW OF THE ACT."  ID., AT 15, 16. 

FN6  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. 

FN7  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, 280 MICH. 610, 274 N.W. 347 (1937); IN RE LEACH,
215 CAL. 536, 12 P.2D 3 (1932); MARY PICKFORD CO. V. BAYLY BROS., 68
P.2D 239 (1937), MODIFIED, 12 CAL. 2D 501, 86 P.2D 102 (1939). 

FN8  102 F. SUPP., AT 968, 969. 

FN9  200 F.2D, AT 91.    FN10  A.C. FROST & CO. V. COEUR D'ALENE
MINES CORP., 312 U.S. 38, 40 (1941).  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. 

FN11  SEE VISCOUNT SUMNER'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.    FN12  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. 

FN13  A STATEMENT ENTITLED TO MORE WEIGHT THAN DIFFERENT VIEWS
EXPRESSED BY ONE OF THE CONFEREES IN SENATE DEBATE.  SEE 78 CONG. REC.
10181, 10182. 

THE CHIEF JUSTICE AND MR. JUSTICE BURTON DISSENT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. V. NOTHNAGLE 346 U.S. 128 


NO. 525.  ARGUED APRIL 29, 1953 - DECIDED JUNE 8, 1953 - 139 CONN. 278,
93 A.2D 165, AFFIRMED. 


A PASSENGER BOUGHT FROM A RAILROAD A TICKET FOR A JOURNEY FROM
MERIDEN, CONN., TO FALL RIVER, MASS., VIA NEW HAVEN, CONN.  ON ARRIVING
AT NEW HAVEN, SHE ALIGHTED TO TRANSFER TO ANOTHER TRAIN LEAVING ABOUT
AN HOUR LATER.  AT THE STATION, HER SUITCASE WAS SOLICITED BY A REDCAP
EMPLOYEE OF THE RAILROAD, TO WHOM SHE HANDED IT WITH INSTRUCTIONS TO
RETURN IT AT THE FALL RIVER TRAIN.  NO BAGGAGE CHECK WAS GIVEN AND NO
MONEY PAID.  THE SUITCASE WAS LOST, AND THE PASSENGER SUED IN A STATE
COURT.  THE RAILROAD COMPANY CLAIMED THAT ITS LIABILITY WAS LIMITED TO
$25 BY A TARIFF FILED WITH THE INTERSTATE COMMERCE COMMISSION.  THE
STATE COURT RENDERED JUDGMENT FOR $615, THE ACTUAL VALUE OF THE LOST
BAGGAGE.  HELD:  JUDGMENT AFFIRMED.  PP. 129-136. 

(A)  THE TRANSACTION WAS INCIDENT TO AN INTERSTATE JOURNEY, AND THE
INTERSTATE COMMERCE ACT CONTROLS, TO WHATEVER EXTENT ITS PROVISIONS
APPLY.  PP. 130-131. 

(B)  THE SUITCASE IN QUESTION WAS NOT "BAGGAGE CARRIED ON PASSENGER
TRAINS" WITHIN THE MEANING OF THE FIRST EXCEPTION ADDED IN 1916 TO THE
CARMACK AMENDMENT, 39 STAT. 442, 49 U.S.C. SEC. 20(11).  PP. 131-135. 

(C)  NOR DID THE TARIFF FILED WITH THE INTERSTATE COMMERCE COMMISSION
CONTROL, SINCE THERE WAS NO "VALUE DECLARED IN WRITING BY THE SHIPPER
OR AGREED UPON IN WRITING," WITHIN THE MEANING OF THE SECOND EXCEPTION
TO THE CARMACK AMENDMENT.  P. 135. 

(D)  ONLY BY GRANTING ITS CUSTOMERS A FAIR OPPORTUNITY TO CHOOSE
BETWEEN HIGHER AND 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.  PP. 135-136. 

NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. V. NOTHNAGLE ET AL. 

CERTIORARI TO THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

A CONNECTICUT STATE COURT AWARDED RESPONDENT A JUDGMENT AGAINST A
RAILROAD FOR THE LOSS OF A SUITCASE ENTRUSTED TO A REDCAP.  THE STATE
SUPREME COURT AFFIRMED.  139 CONN. 278, 93 A.2D 165.  THIS COURT
GRANTED CERTIORARI.  345 U.S. 903.  AFFIRMED, P. 136. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

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 ARRIVED
SHORTLY AFTER 11:30 A.M. IN NEW HAVEN WHERE SHE ALIGHTED FOR TRANSFER
TO ANOTHER TRAIN.  ON THE STATION PLATFORM HER 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. 

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.  (FN1)  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.  (FN2)  ACCORDINGLY, THAT COURT
DEEMED THE CASE GOVERNED BY CONNECTICUT LAW UNDER WHICH PETITIONER WAS
HELD LIABLE FOR $615.  (FN3)  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. 

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. SOUTH BEND, 277 U.S. 163, 168 (1928).  AND SEE BALTIMORE &
OHIO S.W.R. CO. V. SETTLE, 260 U.S. 166, 171 (1922); GALVESTON,
H.&S.A.R. CO. V. WOODBURY, 254 U.S. 357 (1920).  IN THIS CASE
RESPONDENT UNDERTOOK A JOURNEY 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.,
315 U.S. 386, 394, 397 (1942); STOPHER V. CINCINNATI UNION TERMINAL
CO., 246 I.C.C. 41 (1941).  (FN4)  THE INTERSTATE COMMERCE ACT,
THEREFORE, MUST CONTROL TO WHATEVER EXTENT ITS PROVISIONS APPLY. 

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, 226 U.S. 491, 504-505 (1913); KANSAS
CITY S.R. CO. V. CARL, 227 U.S. 639, 648-649 (1913).  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."  (FN5)  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."  (FN6)
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  ...  ."  (FN7) 

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.  (FN8)  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, 260 U.S. 584, 588-589 (1923).  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." 

CLEARLY THAT LIMITATION OF LIABILITY IS VOIDED BY THE ACT UNLESS
SAVED BY THE STATUTORY PROVISO.  ADAMS EXPRESS CO. V. DARDEN, 265 U.S.
265 (1924); CHICAGO, M. & ST. P.R. CO. V. MCCAULL-DINSMORE CO., 253
U.S. 97 (1920).  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, 233 U.S. 97, 117 (1914). 
(FN9)  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).  (FN10)
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, 241 U.S. 319, 327 (1916). 

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.  (FN11)  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, 246 U.S. 439, 444-445
(1918); UNION PACIFIC R. CO. V. BURKE, 255 U.S. 317, 321-323 (1921);
CF. THE ANSALDO SAN GIORGIO I V. RHEINSTROM BROS. CO., 294 U.S. 494,
497-498 (1935).  BINDING RESPONDENT BY A LIMITATION WHICH SHE HAD NO
REASONABLE OPPORTUNITY TO DISCOVER WOULD EFFECTIVELY DEPRIVE HER OF THE
REQUISITE CHOICE; (FN12) 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
CO., 193 F.2D 283, 286 (1951).  "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.'  "  SANTE FE, P.&P.R. CO. V. GRANT BROS.
CONSTRUCTION CO., 228 U.S. 177, 184-185 (1913).  IN SUM, RESPONDENT
CANNOT BE HELD BOUND BY PETITIONER'S LIMITATION, AND THE JUDGMENT OF
THE CONNECTICUT SUPREME COURT OF ERRORS MUST BE AFFIRMED. 

FN1  R. 7-9.  THE DECISION OF THE MERIDEN CITY COURT IS NOT
REPORTED. 

FN2  139 CONN. 278, 282, 93 A.2D 165, 167 (1952). 

FN3  139 CONN., AT 283, 93 A.2D, AT 167. 

FN4  NEITHER HERE NOR IN WILLIAMS WAS THE COMMISSION'S RULING IN THE
STOPHER CASE CHALLENGED. 

FN5  34 STAT. 595, 49 U.S.C. SEC. 20(11). 

FN6  38 STAT. 1197, 49 U.S.C. SEC. 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. 

FN7  39 STAT. 442, 49 U.S.C. SEC. 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 HAS
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."  S. REP. NO. 394, 64TH CONG., 1ST SESS., P. 2. 

FN8  SEE 49 U.S.C. SECS. 1(1), 1(3), 1(5)(A), 6(1). 

FN9  CF. 49 U.S.C. SEC. 22, REFERRING TO "FREE BAGGAGE" CARRIED ON
PASSENGER TICKETS.  SEE ALSO NOTES 7, SUPRA, AND 10, INFRA. 

FN10  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 OR 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). 

FN11  SEE CATEN V. SALT CITY MOVERS & STORAGE CO., 149 F.2D 428, 432
(1945).  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, 260 U.S. 584, 590-591
(1923), OR WHETHER A CARRIER'S REFUSAL TO HANDLE PROPERTY ABOVE A
CERTAIN VALUE IS PERMISSIBLE AT ALL. 

FN12  BOSTON & MAINE R. CO. V. HOOKER, 233 U.S. 97 (1914), AND NEW
YORK CENTRAL R. CO. V. BEAHAM, 242 U.S. 148 (1916), 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,
254 U.S. 357 (1920), THE SOLE ISSUE RAISED OR CONSIDERED RELATED TO THE
INTERSTATE NATURE OF THE PASSENGER'S JOURNEY. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















CENTRAL BANK V. UNITED STATES 345 U.S. 639 


NO. 521.  ARGUED APRIL 29, 1953 - DECIDED JUNE 1, 1953 - 123 CT. CL.
237, 105 F. SUPP. 992, REVERSED. 


PURSUANT TO THE ASSIGNMENT OF CLAIMS ACT OF 1940, A GOVERNMENT
CONTRACTOR IN 1945 ASSIGNED TO A BANK THE PROCEEDS OF ITS CONTRACT WITH
THE NAVY.  AS AUTHORIZED BY THE ACT, THE CONTRACT PROVIDED THAT
PAYMENTS TO THE ASSIGNEE SHOULD NOT BE SUBJECT TO SETOFF FOR ANY
INDEBTEDNESS OF THE CONTRACTOR ARISING INDEPENDENTLY OF THE CONTRACT. 
THE CONTRACTOR FAILED TO PAY OVER FEDERAL INCOME AND SOCIAL SECURITY
TAXES WITHHELD BY IT FROM THE WAGES OF ITS EMPLOYEES PERFORMING WORK
UNDER THE CONTRACT.  HELD:  WITHIN THE MEANING OF THE ACT, THE
CONTRACTOR'S TAX INDEBTEDNESS AROSE "INDEPENDENTLY OF" THE CONTRACT AND
COULD NOT BE SET OFF AGAINST MONEY OWED BY THE GOVERNMENT ON THE
CONTRACT TO THE ASSIGNEE.  PP. 640-647. 

(A)  THE CONTRACTOR'S TAX INDEBTEDNESS WAS IMPOSED BY SECS. 1401 AND
1622 OF THE INTERNAL REVENUE CODE.  IT WAS THUS AN INDEBTEDNESS
"ARISING INDEPENDENTLY OF" THE CONTRACT WITHIN THE MEANING OF THE
ASSIGNMENT OF CLAIMS ACT OF 1940.  PP. 645-646. 

(B)  TO PERMIT THE GOVERNMENT TO SET OFF THE TAX INDEBTEDNESS AGAINST
THE AMOUNT DUE UNDER THE CONTRACT IN THE CIRCUMSTANCES OF THIS CASE
WOULD DEFEAT THE PURPOSE OF THE ASSIGNMENT OF CLAIMS ACT OF 1940 TO
ENCOURAGE THE PRIVATE FINANCING OF GOVERNMENT CONTRACTS.  PP. 646-647. 

CENTRAL BANK V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS. 

THE COURT OF CLAIMS DENIED A CLAIM BY A BANK AS ASSIGNEE OF THE
PROCEEDS OF A NAVY CONTRACT, ON THE GROUND THAT THE GOVERNMENT WAS
ENTITLED TO SET OFF THE CONTRACTOR'S TAX INDEBTEDNESS AGAINST THE
AMOUNT DUE UNDER THE CONTRACT.  123 CT. CL. 237, 105 F. SUPP. 992. 
THIS COURT GRANTED CERTIORARI.  345 U.S. 903.  REVERSED, P. 647. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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. SEC. 203,
WHICH PROVIDES: 

"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."  (FN1) 

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." 

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. 

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 SECS. 1401 AND 1622 OF THE INTERNAL REVENUE CODE, 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. 

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. 

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. 

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, 123 CT. CL. 237, 105 F.
SUPP. 992, 994, AND THAT PETITIONER WAS THEREFORE NOT ENTITLED TO
RECOVER UNDER THE ASSIGNMENT. 

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. SECS. 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), 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. 

THE ASSIGNMENT OF CLAIMS ACT OF 1940, AMENDING THE ANTI-ASSIGNMENT
STATUTES, (FN2) 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. SECS.
3477, 3737, AS AMENDED.  IT PROVIDED, SEE 31 U.S.C. SEC. 203, P. 640,
SUPRA, "THAT PAYMENTS TO AN ASSIGNEE OF ANY CLAIM ARISING UNDER SUCH
CONTRACT SHALL NOT BE SUBJECT TO REDUCTION OR SET-OFF." 

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.  (FN3)  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. 

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.  (FN4)  IN PROPOSING THE AMENDMENT, THE
SENATOR STATED: 

"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
...  ." 

OTHERWISE: 

"  ...  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: 

"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. 

     *         *         *         *         * 

"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."  (FN5) 

TO SUPPORT ITS POSITION, THE WORDS OF UNITED STATES V. MUNSEY TRUST
CO. WERE RELIED UPON: 

"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. 

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. 

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
SECS. 1401 AND 1622 OF THE INTERNAL REVENUE CODE.  (FN6)  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 SEC. 3661 OF
THE CODE.  (FN7)  ASSIGNOR GRAHAM'S INDEBTEDNESS TO THE UNITED STATES
AROSE, WE THINK, "INDEPENDENTLY" OF THE CONTRACT. 

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.  (FN8)  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.  REVERSED. 

FN1  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) SEC.
203. 

FN2  THE ISSUE BEFORE US HAS BEEN PROSPECTIVELY SETTLED FOR OTHERS BY
THE 1951 ASSIGNMENT OF CLAIMS ACT (65 STAT. 41, 31 U.S.C. (SUPP. V)
SEC. 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. 

FN3  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. 

FN4  86 CONG. REC. 12803. 

FN5  CENTRAL BANK V. UNITED STATES, 123 CT. CL. 237, 244, 245, 105 F.
SUPP. 992, 994. 

FN6  "SEC.  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 ...  . 

"SEC. 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. 

     *         *         *         *         * 

"SEC. 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:  ...  ." 

FN7  "SEC.  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." 
FN8  UNITED STATES V. GUARANTY TRUST CO., 280 U.S. 478, 483.  IN THE
GUARANTY TRUST CASE THE UNITED STATES SOUGHT PRIORITY UNDER R.S. SEC.
3466 FOR ITS DEBTS FROM EMBARRASSED RAILROADS.  TRANSPORTATION ACT OF
1920, TIT. II, SECS. 207, 209, 210, 41 STAT. 456, 457-469.  ALTHOUGH
THERE WAS NO SPECIFIC WAIVER OF SEC. 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
II, WOULD HAVE DEFEATED THE PURPOSE OF CONGRESS.  IT NOT ONLY WOULD
HAVE PREVENTED THE REESTABLISHMENT 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 SEC. 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 485. 

THE CHIEF JUSTICE, MR. JUSTICE BURTON AND MR. JUSTICE CLARK DISSENT. 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :




















LEVINSON V. DEUPREE 345 U.S. 648 


NO. 439.  ARGUED FEBRUARY 5-6, 1953 - DECIDED JUNE 1, 1953 - 199 F.2D
760, AFFIRMED. 


A NEW YORK GIRL WAS KILLED IN A COLLISION BETWEEN TWO MOTORBOATS ON
THE OHIO RIVER IN KENTUCKY.  RESPONDENT OBTAINED A DEFECTIVE
APPOINTMENT AS ANCILLARY ADMINISTRATOR OF HER ESTATE AND FILED A TIMELY
LIBEL IN PERSONAM IN A FEDERAL DISTRICT COURT IN KENTUCKY AGAINST THE
OWNERS AND OPERATORS OF THE MOTORBOATS FOR DAMAGES UNDER THE KENTUCKY
WRONGFUL DEATH STATUTE, WHICH PRESCRIBED A ONE-YEAR STATUTE OF
LIMITATIONS.  RESPONDENT LATER OBTAINED AN UNDOUBTEDLY VALID
APPOINTMENT AND, MORE THAN A YEAR AFTER THE DEATH, MOVED TO AMEND HIS
LIBEL TO ALLEGE HIS NEW APPOINTMENT.  THIS WAS NOT PERMITTED UNDER
KENTUCKY LAW, BECAUSE A NEW SUIT WOULD HAVE BEEN BARRED BY THE STATUTE
OF LIMITATIONS.  HELD:  THE SUIT BEING IN ADMIRALTY, FEDERAL PRACTICE
CONTROLS.  THE ADMINISTRATOR, HOLDING AN EFFECTIVE APPOINTMENT UNDER
KENTUCKY LAW, SHOULD BE PERMITTED TO AMEND HIS LIBEL SO AS TO ALLEGE
THAT APPOINTMENT, EVEN THOUGH THE APPLICABLE STATUTE OF LIMITATIONS
WOULD BAR A NEW SUIT.  PP. 649-652. 

LEVINSON ET AL. V. DEUPREE, ANCILLARY ADMINISTRATOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

A FEDERAL DISTRICT COURT DISMISSED AN ADMINISTRATOR'S LIBEL TO
RECOVER FOR A WRONGFUL DEATH OCCURRING ON A NAVIGABLE RIVER.  THE COURT
OF APPEALS REVERSED.  186 F.2D 297.  THIS COURT DENIED CERTIORARI.  341
U.S. 915.  ON REMAND, THE DISTRICT COURT AWARDED A DECREE TO THE
ADMINISTRATOR.  THE COURT OF APPEALS AFFIRMED.  199 F.2D 760.  THIS
COURT GRANTED CERTIORARI.  344 U.S. 903.  AFFIRMED, P. 652. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

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, WHERE 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. 

THE DISTRICT COURT SUSTAINED BOTH THE GENERAL AND SPECIAL DEMURRERS. 
IT HELD THAT THE KENTON COUNTY APPOINTMENT OF DEUPREE AS ADMINISTRATOR
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. 

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.  186 F.2D 297.  WE DENIED A PETITION FOR CERTIORARI
TO REVIEW THIS JUDGMENT, 341 U.S. 915, BUT, AFTER A DECREE HAD BEEN
AWARDED TO THE ADMINISTRATOR AND THE COURT OF APPEALS HAD AFFIRMED, 199
F.2D 760, WE GRANTED THE PRESENT PETITION.  344 U.S. 903.  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. 

THE MARITIME LAW DOES NOT ALLOW RECOVERY FOR WRONGFUL DEATH.  THE
HARRISBURG, 119 U.S. 199; BUTLER V. BOSTON & SAVANNAH STEAMSHIP CO.,
130 U.S. 527, 555.  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.
SEC. 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.  LIKE THE GARCIA SUIT, THE PRESENT LIBEL WAS BROUGHT UNDER A STATE
WRONGFUL DEATH STATUTE.  KY. REV. STAT., 1946, SEC. 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 214.  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. 

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, IS IRRELEVANT.  THE COURT IN THIS
CASE WAS NOT "IN EFFECT, ONLY ANOTHER COURT OF THE STATE," GUARANTY
TRUST CO. V. YORK, 326 U.S. 99, 108.  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; THE HAMILTON, 207 U.S.
398, 405.  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. V. YORK, SUPRA, 326 U.S.,
AT 108.  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. 

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;
CF. NEW YORK CENTRAL R. CO. V. KINNEY, 260 U.S. 340, 346.  AFFIRMED. 
..END :













TRANSCONTINENTAL & WESTERN AIR, INC. V. KOPPAL 345 U.S. 653 


NO. 509.  ARGUED APRIL 8-9, 1953 - DECIDED JUNE 1, 1953 - 199 F.2D 117,
REVERSED. 


A DISCHARGED EMPLOYEE OF A CARRIER THAT WAS SUBJECT TO THE RAILWAY
LABOR ACT, CLAIMING DIVERSITY OF CITIZENSHIP AND THE REQUISITE
JURISDICTIONAL AMOUNT, BROUGHT IN A FEDERAL DISTRICT COURT IN MISSOURI
AN ACTION UNDER MISSOURI LAW FOR WRONGFUL DISCHARGE.  HE FAILED TO SHOW
THAT HE HAD EXHAUSTED THE ADMINISTRATIVE REMEDIES PRESCRIBED BY HIS
EMPLOYMENT CONTRACT.  THE EMPLOYMENT CONTRACT WAS A MISSOURI CONTRACT
AND THE ADMINISTRATIVE REMEDIES PRESCRIBED THEREIN WERE CONSISTENT WITH
THE RAILWAY LABOR ACT.  HELD:  THE DISTRICT COURT PROPERLY DISMISSED
THE COMPLAINT.  PP. 654-662. 

(A)  A DISCHARGED EMPLOYEE OF A CARRIER THAT IS SUBJECT TO THE
RAILWAY LABOR ACT IS NOT PRECLUDED BY THAT ACT FROM RESORTING TO A
STATE-RECOGNIZED CAUSE OF ACTION FOR WRONGFUL DISCHARGE.  PP. 660-662. 

(B)  IN AN ACTION UNDER STATE LAW FOR WRONGFUL DISCHARGE, BROUGHT BY
A DISCHARGED EMPLOYEE OF A CARRIER THAT IS SUBJECT TO THE RAILWAY LABOR
ACT, THE EMPLOYEE MUST SHOW THAT HE HAS EXHAUSTED HIS ADMINISTRATIVE
REMEDIES UNDER HIS CONTRACT OF EMPLOYMENT, IF THE APPLICABLE STATE LAW
SO REQUIRES.  PP. 654-657, 660-662. 

(C)  UNDER THE LAW OF MISSOURI, A DISCHARGED EMPLOYEE WHO BRINGS AN
ACTION AGAINST HIS EMPLOYER FOR WRONGFUL DISCHARGE MUST SHOW EXHAUSTION
OF ADMINISTRATIVE REMEDIES UNDER HIS EMPLOYMENT CONTRACT IN ORDER TO
SUSTAIN HIS CAUSE OF ACTION.  PP. 657-660. 

TRANSCONTINENTAL & WESTERN AIR, INC. V. KOPPAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

IN AN ACTION BROUGHT BY RESPONDENT AGAINST PETITIONER, BASED ON
DIVERSITY OF CITIZENSHIP, THE DISTRICT COURT SET ASIDE A VERDICT FOR
RESPONDENT AND DISMISSED THE COMPLAINT.  THE COURT OF APPEALS REVERSED
AND REMANDED THE CASE FOR FURTHER PROCEEDINGS.  199 F.2D 117.  THIS
COURT GRANTED A LIMITED CERTIORARI.  344 U.S. 933.  REVERSED AND
REMANDED, P. 662. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

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. 

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.  (FN1)  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. 

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 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. 

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. 

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.  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, AND SLOCUM
V. DELAWARE, L.&W.R. CO., 339 U.S. 239, AND DUE TO THE IMPORTANCE OF
THE CASE IN RELATION TO THE RAILWAY LABOR ACT, WE GRANTED CERTIORARI. 
344 U.S. 933.  (FN2) 

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; KLAXON CO. V. STENTOR
ELECTRIC MFG. CO., 313 U.S. 487. 

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. 

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: 

"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."  ID., AT 827. 

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.  (FN3) 

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: 

"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." 

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.
SECS. 184, 185. 

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. 

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. 

"WE 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. 

WE AMPLIFIED THE FOREGOING STATEMENT IN SLOCUM V. DELAWARE, L.&W.R.
CO., 339 U.S. 239, 244, AS FOLLOWS: 

"MOORE IN 312 U.S. 630 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." 

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.  (FN4)    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. 

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.  REVERSED AND REMANDED. 

FN1  49 STAT. 1189 ET SEQ., 45 U.S.C. SECS. 181-188. 

FN2  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, AND SLOCUM V. DELAWARE, L.&W.R. CO., 339 U.S.
239, 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." 

FN3  "  ...  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."  ID., AT 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, 83 S.W.2D
796, 802 (TEX. CIV. APP.).  SEE ALSO, BELL V. WESTERN R. CO., 228 ALA.
328, 153 SO. 434.  THIS QUOTATION AND CITATION ARE RELIED ON IN THE
REED CASE, AT 889. 

FN4  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; 24
F. SUPP.  731; 112 F.2D 959; 136 F.2D 412.  SEE ALSO, TEXAS & N.O.R.
CO. V. MCCOMBS, 143 TEX. 257, 183 S.W.2D 716. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















POLIZZI V. COWLES MAGAZINES, INC. 345 U.S. 663 


NO. 287.  ARGUED MARCH 10, 1953 - DECIDED JUNE 1, 1953 - 197 F.2D 74,
REVERSED. 


RESPONDENT, AN IOWA CORPORATION WHICH PUBLISHES A NATIONAL MAGAZINE,
MAINTAINS NO OFFICES IN FLORIDA, BUT SELLS THE MAGAZINE TO TWO
INDEPENDENT WHOLESALE COMPANIES WHICH DISTRIBUTE IT TO RETAILERS IN
FLORIDA.  PETITIONER, A RESIDENT OF FLORIDA, SUED RESPONDENT IN A
FLORIDA STATE COURT FOR ALLEGEDLY LIBELOUS MATTER PUBLISHED IN THE
MAGAZINE.  RESPONDENT REMOVED THE ACTION TO THE FEDERAL DISTRICT COURT
FOR THE DISTRICT IN WHICH THE STATE COURT WAS LOCATED.  THE DISTRICT
COURT DISMISSED THE ACTION FOR WANT OF JURISDICTION UNDER 28 U.S.C.
SEC. 1391(C).  HELD:  THE DISTRICT COURT IMPROPERLY DISMISSED THE
ACTION FOR WANT OF JURISDICTION.  THE CAUSE IS REMANDED TO THAT COURT
TO TAKE JURISDICTION OF THE ACTION AND DETERMINE WHETHER IT ACQUIRED
JURISDICTION OF RESPONDENT BY PROPER SERVICE.  PP. 664-667. 

(A)  28 U.S.C. SEC. 1391(C) IS INAPPLICABLE TO AN ACTION WHICH HAS
BEEN REMOVED FROM A STATE COURT TO A FEDERAL DISTRICT COURT, AND THE
QUESTION WHETHER RESPONDENT WAS "DOING BUSINESS" IN FLORIDA, WITHIN THE
MEANING OF THAT SECTION, IS IRRELEVANT.  PP. 665-666. 

(B)  THE VENUE OF REMOVED ACTIONS IS GOVERNED BY 28 U.S.C. SEC.
1441(A).  UNDER THAT SECTION VENUE IN THIS CASE WAS PROPERLY LAID.  PP.
665-666. 

POLIZZI V. COWLES MAGAZINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

IN A SUIT BROUGHT BY PETITIONER IN A STATE COURT, AND REMOVED BY
RESPONDENT TO A FEDERAL DISTRICT COURT, THE DISTRICT COURT DISMISSED
THE COMPLAINT FOR WANT OF JURISDICTION.  THE COURT OF APPEALS
AFFIRMED.  197 F.2D 74.  THIS COURT GRANTED CERTIORARI.  344 U.S. 853. 
REVERSED AND REMANDED TO THE DISTRICT COURT, P. 667. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

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)
SECS. 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) SEC. 1448; FED. RULES CIV.
PROC., 4(D)(3), (7); FLA. STAT. ANN., 1943, SEC. 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
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. 

THE ONLY QUESTION IN THIS CASE ON THE RECORD BEFORE US IS WHETHER THE
DISTRICT COURT CORRECTLY DISMISSED THE ACTION FOR WANT OF
JURISDICTION. 

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)
SEC. 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) SEC. 1406.  BUT EVEN ON THE QUESTION OF VENUE, SEC.
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) SEC.
1441(A), AND UNDER THAT SECTION VENUE WAS PROPERLY LAID IN THE SOUTHERN
DISTRICT OF FLORIDA.  LEE V. CHESAPEAKE & O.R. CO., 260 U.S. 653;
GENERAL INVESTMENT CO. V. LAKE SHORE & M.S.R. CO., 260 U.S. 261, 270
279; MOSS V. ATLANTIC COAST LINE R. CO., 157 F.2D 1005.  (FN1)  THE
PERTINENT PROVISIONS OF THE TWO STATUTES ARE SET FORTH IN THE MARGIN. 
(FN2)  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) SEC. 89. 

THEREFORE, THE QUESTION WHETHER RESPONDENT WAS "DOING BUSINESS" IN
FLORIDA WITHIN THE MEANING OF SEC. 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. 

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. WASHINGTON, 326 U.S. 310, BECAUSE RESPONDENT
HAS NOT CONTENDED THAT THE INTERNATIONAL SHOE TEST IS NOT MET.  (FN3)
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.  REVERSED. 

FN1  SEE ALSO 1 BARRON AND HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE,
SEC. 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. 

FN2  "SEC.  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." 

"SEC. 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." 

FN3  "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. 

MR. JUSTICE FRANKFURTER, NOT HAVING HEARD THE ARGUMENT, TOOK NO PART
IN THE CONSIDERATION AND DISPOSITION OF THIS CASE. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE JACKSON JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

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. 

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. SEC. 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.  (FN1)  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. 

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 BUSINESS.  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 CONCEPTS (FN2)
ABOUT "DOING BUSINESS."  WHETHER CASES ARE TO BE TRIED IN ONE LOCALITY
OR ANOTHER IS NOW TO BE TESTED BY BASIC PRINCIPLES OF FAIRNESS, (FN3)
UNLESS, AS SEEMS POSSIBLE, THIS CASE REPRESENTS A THROWBACK TO WHAT I
CONSIDER LESS ENLIGHTENED PRACTICES. 

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. 

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. SEC. 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."  (FN4)  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.  (FN5)    FN1  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. SEC. 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."  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. WASHINGTON, 326 U.S.
310, 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." 

FN2  CF. VON JHERING, IN THE HEAVEN OF LEGAL CONCEPTS, TRANSLATED IN
COHEN AND COHEN, READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY, 678
689. 

FN3  SEE ON THIS POINT INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S.
310; TRAVELERS HEALTH ASSN. V. VIRGINIA, 339 U.S. 643; UNITED STATES V.
SCOPHONY CORP. OF AMERICA, 333 U.S. 795. 

FN4  28 U.S.C. SEC. 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. SEC. 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." 

FN5  28 U.S.C. SEC. 2106 PROVIDES THAT THIS COURT IN REVERSING
JUDGMENTS MAY DIRECT THE DISTRICT COURT TO ENTER SUCH ORDERS AS ARE
"JUST UNDER THE CIRCUMSTANCES." 

MR. JUSTICE BURTON, CONCURRING IN PART AND DISSENTING IN PART. 

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. WASHINGTON, 326 U.S. 310, 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. 
..END :











AVERY V. GEORGIA 345 U.S. 559 


NO. 648.  ARGUED APRIL 30, 1953 - DECIDED MAY 25, 1953 - 209 GA. 116, 70
S.E.2D 716, REVERSED. 


NOTWITHSTANDING A TIMELY CHALLENGE, ON THE GROUND OF RACIAL
DISCRIMINATION CONTRARY TO THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT, OF THE ARRAY OF PETIT JURORS SELECTED TO TRY HIS
CASE IN A STATE COURT, PETITIONER, A NEGRO, WAS CONVICTED OF RAPE. 
AFTER THE NAMES OF PROSPECTIVE JURORS HAD BEEN SELECTED BY JURY
COMMISSIONERS, THE NAMES OF WHITE PERSONS WERE PRINTED ON WHITE TICKETS
AND THE NAMES OF NEGROES ON YELLOW TICKETS, WHICH WERE PLACED TOGETHER
IN A JURY BOX.  A JUDGE THEN DREW A NUMBER OF TICKETS FROM THE BOX; AND
HE TESTIFIED, WITHOUT CONTRADICTION, THAT HE HAD NOT DISCRIMINATED IN
THE DRAWING.  THE TICKETS DRAWN WERE HANDED TO A SHERIFF, WHO ENTRUSTED
THEM TO A CLERK, WHOSE DUTY IT WAS TO "ARRANGE" THE TICKETS AND TO TYPE
IN FINAL FORM THE LIST OF PERSONS TO BE CALLED TO SERVE ON THE PANEL. 
ABOUT 60 PERSONS WERE ON THE PANEL FROM WHICH THE JURY WAS SELECTED AND
NONE OF THEM WAS A NEGRO, ALTHOUGH MANY NEGROES WERE AVAILABLE FOR
SERVICE.  HELD:  THE CONVICTION IS REVERSED.  PP. 560-563. 

(A)  ON THE RECORD IN THIS CASE, PETITIONER MADE A PRIMA FACIE
SHOWING OF DISCRIMINATION IN THE ORGANIZATION OF THIS PARTICULAR JURY
PANEL.  PP. 561-562. 

(B)  PETITIONER HAVING PROVED A PRIMA FACIE CASE OF DISCRIMINATION IN
THE SELECTION OF THE JURY, THE BURDEN WAS UPON THE STATE TO OVERCOME
THIS PRIMA FACIE CASE, AND IT FAILED TO DO SO.  PP. 562-563. 

AVERY V. GEORGIA. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

IN A GEORGIA TRIAL COURT, PETITIONER WAS CONVICTED OF RAPE AND
SENTENCED TO DEATH.  THE SUPREME COURT OF GEORGIA AFFIRMED.  209 GA.
116, 70 S.E.2D 716.  THIS COURT GRANTED CERTIORARI.  345 U.S. 903. 
REVERSED, P. 563. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

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.  (FN1)  WE GRANTED
CERTIORARI TO REVIEW THIS CLAIM.  345 U.S. 903. 

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. 

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. 

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, (FN2) IS
WHETHER PETITIONER HAS MADE A SUFFICIENT SHOWING OF DISCRIMINATION IN
THE ORGANIZATION OF THIS PARTICULAR PANEL.  WE THINK HE HAS. 

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.
TEXAS, 316 U.S. 400, 404 (1942).  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."  (FN3) 

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
...  ."  (FN4)  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." 

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. 

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, (FN5) AND THE GEORGIA
SUPREME COURT, ITSELF, RECENTLY FOLLOWED THESE DECISIONS, (FN6) 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.  REVERSED. 

FN1  AVERY V. STATE, 209 GA. 116, 70 S.E.2D 716 (1952). 

FN2  NORRIS V. ALABAMA, 294 U.S. 587 (1935). 

FN3  E.G., NEAL V. DELAWARE, 103 U.S. 370 (1881); ROGERS V. ALABAMA,
192 U.S. 226 (1904); NORRIS V. ALABAMA, SUPRA; PIERRE V. LOUISIANA, 306
U.S. 354 (1939); CASSELL V. TEXAS, 339 U.S. 282 (1950). 

FN4  GA. CODE ANN. SEC. 59-106.  SEE CRUMB V. STATE, 205 GA. 547, 54
S.E.2D 639 (1949). 

FN5  NORRIS V. ALABAMA, SUPRA, 294 U.S., AT 594-595, 598; HILL V.
TEXAS, 316 U.S. 400, 405-406 (1942); PATTON V. MISSISSIPPI, 332 U.S.
463 (1947). 

FN6 CRUMB V. STATE, SUPRA. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, CONCURRING. 

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. 

THESE FACTS ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION WHICH THE
RECORD DOES NOT REBUT. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

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. 

ACCORDINGLY, I CONCUR IN THE JUDGMENT. 
..END :















TINDER V. UNITED STATES 345 U.S. 565 


NO. 113.  ARGUED APRIL 9-10, 1953 - DECIDED MAY 25, 1953 - 193 F.2D 720,
REVERSED. 


AS IT EXISTED IN 1950, 18 U.S.C. SEC. 1708 MADE IT AN OFFENSE TO STEAL
FROM A MAILBOX ANY MAIL, LETTER, OR "ANY ARTICLE OR THING CONTAINED
THEREIN."  IT PROVIDED THAT AN OFFENDER SHALL BE FINED NOT MORE THAN
$2,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH; AND PROVIDED
FURTHER THAT IF THE VALUE OF "ANY SUCH ARTICLE OR THING" DOES NOT
EXCEED $100, THE OFFENDER SHALL BE FINED NOT MORE THAN $1,000 OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH.  HELD:  A DEFENDANT
CONVICTED IN 1950 OF THEFT FROM A MAILBOX OF A LETTER NOT SHOWN TO HAVE
HAD A VALUE OF MORE THAN $100 WAS IMPROPERLY SENTENCED TO IMPRISONMENT
FOR MORE THAN ONE YEAR.  PP. 566-570. 

(A)  THE WORDS "ARTICLE OR THING" IN THE CONCLUDING PROVISO INCLUDED
LETTERS; THE SECTION DOES NOT DISTINGUISH BETWEEN THEFT OF MAIL AND
THEFT OF AN ARTICLE OR THING CONTAINED IN A PIECE OF MAIL.  PP. 567
569. 

(B)  THE ELIMINATION OF THE CONCLUDING PROVISION OF SEC. 1708 BY THE
ACT OF JULY 1, 1952, 66 STAT. 314, IS INAPPLICABLE TO A PRIOR
CONVICTION UNDER THAT SECTION.  P. 569. 

TINDER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

PETITIONER WAS CONVICTED OF MAIL THEFT IN VIOLATION OF 18 U.S.C. SEC.
1708, AND SUBSEQUENTLY MOVED TO VACATE OR CORRECT THE SENTENCE.  THE
DISTRICT COURT DENIED PETITIONER'S MOTION.  THE COURT OF APPEALS
AFFIRMED.  193 F.2D 720.  THIS COURT GRANTED CERTIORARI.  343 U.S.
976.  REVERSED AND REMANDED TO THE DISTRICT COURT FOR CORRECTION OF
SENTENCE, P. 570. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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. SEC. 1708. 
PETITIONER WAS SENTENCED TO THREE YEARS' IMPRISONMENT ON EACH COUNT,
THE SENTENCES TO RUN CONCURRENTLY.  193 F.2D 720.  AFTER SERVING ALMOST
A YEAR OF HIS TERM, PETITIONER, ON AUGUST 3, 1951, FILED A MOTION UNDER
28 U.S.C. SEC. 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 SEC. 1708, THE MAXIMUM PENALTY FOR EACH OF
WHICH WAS ONE YEAR, INSTEAD OF FELONIES FOR WHICH THE MAXIMUM PENALTY
WAS FIVE YEARS.  THE DISTRICT COURT DENIED PETITIONER'S MOTION AND THE
COURT OF APPEALS FOR THE FOURTH CIRCUIT AFFIRMED.  BOTH OF THE COURTS
BELOW HELD THAT THE MISDEMEANOR PROVISION OF SEC. 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. 
THE STATUTE IN QUESTION APPEARS IN THE MARGIN.  (FN1) 

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. 

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-ALL MAXIMUM OF FIVE YEARS WAS CARRIED OVER IN THE 1909 ACT
(35 STAT. 1125) AND IN 18 U.S.C. SEC. 317, THE ANTECEDENT PROVISION OF
18 U.S.C. SEC. 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 "THE SMALLER PENALTY
FOR AN OFFENSE INVOLVING $100 OR LESS WAS ADDED."  (18 U.S.C. SEC.
1708.)  THIS NOTE ALSO CALLED ATTENTION TO SIMILAR ADJUSTMENTS OF
PENALTIES IN SECS. 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.  (FN2) 

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. 

FOLLOWING THE ARMSTRONG DECISION, THE POSTMASTER GENERAL AND THE
ATTORNEY GENERAL ASKED CONGRESS TO ELIMINATE THE MISDEMEANOR PROVISION
FROM SEC. 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. 304;
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 SEC. 1708, AND ITS PURPOSE AS SHOWN BY THE REVISER'S NOTES,
PETITIONER WAS IMPROPERLY CONVICTED OF A FELONY. 

THIS COURT HAS POWER TO DO JUSTICE AS THE CASE REQUIRES.  (FN3)  28
U.S.C. SEC. 2106.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND
THE CAUSE IS REMANDED TO THE DISTRICT COURT TO CORRECT THE SENTENCE. 
IT IS SO ORDERED. 

FN1  "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 $1,000 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." 

FN2  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 PUNISHMENTS 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. 

FN3  PATTERSON V. ALABAMA, 294 U.S. 600, 607; MINNESOTA V. NATIONAL
TEA CO., 309 U.S. 551, 555; WALLING V. JAMES V. REUTER, INC., 321 U.S.
671, 676. 

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. 

THE CHIEF JUSTICE, NOT HAVING HEARD ALL OF THE ORAL ARGUMENT, TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :

















LAURITZEN V. LARSEN 345 U.S. 571 


NO. 226.  ARGUED JANUARY 6, 1953 - DECIDED MAY 25, 1953 - 196 F.2D 220,
REVERSED. 


1.  IN THIS SUIT IN PERSONAM UNDER THE JONES ACT, 46 U.S.C. SEC. 688,
IN A FEDERAL DISTRICT COURT IN NEW YORK, BY A FOREIGN SEAMAN AGAINST A
FOREIGN SHIPOWNER FOR AN INJURY SUSTAINED IN A FOREIGN PORT, PROCESS
WAS SERVED ON DEFENDANT IN NEW YORK AND DEFENDANT APPEARED GENERALLY
AND ANSWERED.  HELD:  THE COURT HAD JURISDICTION TO DETERMINE WHETHER
THE ASSERTED CAUSE OF ACTION WAS WELL FOUNDED.  PP. 574-575. 

2.  WHILE TEMPORARILY IN NEW YORK, A DANISH SEAMAN JOINED THE CREW OF
A SHIP OF DANISH FLAG AND REGISTRY OWNED BY A DANISH CITIZEN.  THE
SEAMAN SIGNED SHIP'S ARTICLES 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 THE SEAMAN WAS A MEMBER.  HE WAS
NEGLIGENTLY INJURED ABOARD THE SHIP, IN THE COURSE OF HIS EMPLOYMENT,
WHILE IN HAVANA HARBOR.  HE SUED THE SHIP'S OWNER IN A FEDERAL DISTRICT
COURT IN NEW YORK FOR DAMAGES UNDER THE JONES ACT.  HELD:  THE JONES
ACT WAS INAPPLICABLE.  PP. 573-593. 

(A)  ALLOWANCE OF AN ADDITIONAL REMEDY UNDER THE JONES ACT WOULD
CONFLICT SHARPLY WITH THE POLICY AND LETTER OF DANISH LAW.  PP. 575
576. 

(B)  BY USAGE AS OLD AS THE NATION, SHIPPING LAWS OF THE UNITED
STATES WRITTEN IN ALL-INCLUSIVE GENERAL TERMS HAVE BEEN CONSTRUED TO
APPLY ONLY TO AREAS AND TRANSACTIONS IN WHICH AMERICAN LAW WOULD BE
CONSIDERED OPERATIVE UNDER PREVALENT DOCTRINES OF INTERNATIONAL LAW. 
PP. 576-579. 

(C)  THE LOCALITY TEST AFFORDS NO SUPPORT FOR THE APPLICATION OF
AMERICAN LAW IN THIS CASE, SINCE THE INJURY OCCURRED ON A DANISH SHIP
IN CUBAN WATERS.  PP. 583-584. 

(D)  IT IS SETTLED AMERICAN DOCTRINE THAT THE LAW OF THE FLAG GOVERNS
ALL MATTERS OF DISCIPLINE ON A SHIP AND ALL THINGS DONE ON BOARD WHICH
AFFECT ONLY THE SHIP AND THOSE BELONGING TO HER, AND WHICH DO NOT
INVOLVE THE PEACE AND DIGNITY OF THE COUNTRY OR THE TRANQUILLITY OF THE
PORT.  PP. 584-586. 

(E)  THE SEAMAN'S PRESENCE IN NEW YORK WAS TRANSITORY AND CREATED NO
SUCH NATIONAL INTEREST IN, OR DUTY TOWARD, HIM AS TO JUSTIFY
APPLICATION OF THE JONES ACT.  PP. 586-587. 

(F)  THE UTMOST LIBERALITY IN DISREGARDING THE FORMALITY OF A SHIP'S
REGISTRATION IN A COUNTRY OTHER THAN THAT OF THE ALLEGIANCE OF ITS
OWNER DOES NOT SUPPORT APPLICATION OF AMERICAN LAW IN THIS CASE.  PP.
587-588. 

(G)  THAT THE CONTRACT OF EMPLOYMENT WAS MADE IN NEW YORK DOES NOT
REQUIRE A DIFFERENT RESULT, SINCE THE PLACE OF CONTRACT IS NOT A
SUBSTANTIAL INFLUENCE IN THE CHOICE BETWEEN COMPETING LAWS TO GOVERN A
MARITIME TORT, AND THE CONTRACT ITSELF VALIDLY PROVIDED FOR APPLICATION
OF DANISH LAW.  PP. 588-589. 

(H)  JUSTICE DOES NOT REQUIRE ADJUDICATION OF THIS CASE UNDER
AMERICAN LAW TO SAVE THIS SEAMAN EXPENSE AND LOSS OF TIME IN RETURNING
TO A FOREIGN FORUM.  PP. 589-590. 

(I)  THAT AN AMERICAN FORUM HAS PERFECTED ITS JURISDICTION OVER THE
PARTIES AND THAT THE DEFENDANT DOES FREQUENT AND REGULAR BUSINESS IN
THE FORUM STATE DOES NOT JUSTIFY APPLICATION OF THE LAW OF THE FORUM IN
THIS CASE.  PP. 590-593. 

LAURITZEN V. LARSEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

A FEDERAL DISTRICT COURT AWARDED RESPONDENT A JUDGMENT AGAINST
PETITIONER FOR DAMAGES UNDER THE JONES ACT, 46 U.S.C. SEC. 688.  THE
COURT OF APPEALS AFFIRMED.  196 F.2D 220.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 810.  REVERSED AND REMANDED, P. 593. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

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. 

RESPONDENT BROUGHT SUIT UNDER THE JONES ACT (FN1) 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.  (FN2)  ITS DECISION, AT
LEAST SUPERFICIALLY, IS AT VARIANCE WITH ITS OWN EARLIER ONES (FN3) AND
CONFLICTS WITH ONE BY THE NEW YORK COURT OF APPEALS.  (FN4)  WE GRANTED
CERTIORARI.  (FN5) 

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.  (FN6)  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 CO. V.
PUBLIC SERVICE CO., 341 U.S. 246, 249. 

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. 

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, 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. 

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. 

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. 

THE SHIPPING LAWS OF THE UNITED STATES, SET FORTH IN TITLE 46 OF THE
U.S.C.  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, 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"
(P. 631) AND THEREFORE WOULD NOT REACH A PERSON PERFORMING THE
PROSCRIBED ACTS ABOARD THE SHIP OF A FOREIGN STATE ON THE HIGH SEAS. 

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 BETSY, 2 CRANCH
64, 118.  SEE THE NEREIDE, 9 CRANCH 388, 423; MACLEOD V. UNITED STATES,
229 U.S. 416, 434; SANDBERG V. MCDONALD, 248 U.S. 185, 195.  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.  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.  (FN7) 

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.  (FN8)
THREE SECTIONS WERE MADE SPECIFICALLY APPLICABLE TO FOREIGN VESSELS,
(FN9) AND THESE PROVOKED CONSIDERABLE DOUBT AND DEBATE.  (FN10)  OTHERS
WERE PHRASED IN TERMS WHICH ON THEIR FACE MIGHT APPLY TO THE WORLD OR
TO ANYTHING LESS.  IN THIS CATEGORY FELL SEC. 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.  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, 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.  AND IT DID NOT GIVE THE SEAMAN THE ONE REALLY
EFFECTIVE SECURITY FOR A CLAIM AGAINST A FOREIGN OWNER, A MARITIME
LIEN.  (FN11) 

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. 

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. 
(FN12)  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. 

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. 

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. 

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.  (FN13)  THIS RULE OF LOCALITY, OFTEN
APPLIED TO MARITIME TORTS, (FN14) 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.  (FN15) 

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.  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.  (FN16)  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. 

2.  LAW OF THE FLAG.  - PERHAPS THE MOST VENERABLE AND UNIVERSAL 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.  (FN17) 

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, AND CASES
CITED.  SOME AUTHORITIES REJECT, AS A RATHER MISCHIEVOUS FICTION, THE
DOCTRINE THAT A SHIP IS CONSTRUCTIVELY A FLOATING PART OF THE FLAG
STATE, (FN18) 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. 

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, AT 158, AND
ITERATED IN CUNARD STEAMSHIP CO. V. MELLON, SUPRA, AT 123: 

"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  ...  ." 

THIS WAS BUT A REPETITION OF SETTLED AMERICAN DOCTRINE.  (FN19) 

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. 

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.  (FN20)  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. 
(FN21)  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 OR 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. 

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. FLORIDA, 313 U.S. 69, 73.  STEELE V. BULOVA WATCH CO., 344
U.S. 280, 282.  UNTIL RECENT TIMES THIS FACTOR WAS NOT A FREQUENT
OCCASION OF CONFLICT, FOR THE NATIONALITY OF THE SHIP WAS THAT OF ITS
OWNERS.  (FN22)  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.  (FN23)  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.  (FN24)  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. 

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.  DE ZON V.
AMERICAN PRESIDENT LINES, 318 U.S. 660, 667; CALMAR S.S. CORP. V.
TAYLOR, 303 U.S. 525, 527.  BUT THIS ACTION DOES NOT SEEK TO RECOVER
ANYTHING DUE UNDER THE CONTRACT OR DAMAGES FOR ITS BREACH. 

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. 

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.  (FN25)  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; THE HANNA NIELSEN, 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. 

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, 261 F. 414, AFF'D 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, 14 F. 427; THE ELSWICK TOWER, 241 F. 706.  THE CONTENTION
IS WITHOUT MERIT. 

WE DO NOT THINK THE PLACE OF CONTRACT IS A SUBSTANTIAL INFLUENCE IN
THE CHOICE BETWEEN COMPETING LAWS TO GOVERN A MARITIME TORT. 

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. 

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. 

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; HOME INSURANCE CO. V. DICK, 281 U.S. 397.  THE
PURPOSE OF A CONFLICT-OF-LAWS DOCTRINE IS TO ASSURE THAT A CASE WILL BE
TREATED IN 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. 

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.  (FN26)  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.  (FN27)  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,
(FN28) WHILE THE APPLICATION OF THE JONES ACT HERE ADVOCATED WOULD
BRING US INTO CONFLICT WITH THE MARITIME WORLD. 

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. 

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.
(FN29) 

THE JUDGMENT BELOW IS REVERSED AND THE CAUSE REMANDED TO DISTRICT
COURT FOR PROCEEDINGS CONSISTENT HEREWITH.  REVERSED AND REMANDED. 

FN1  "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.  SEC. 688. 

FN2  196 F.2D 220. 

FN3  IN THE PAULA, 91 F.2D 1001, 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, 273 F. 171; THE PINAR DEL RIO, 16
F.2D 984, AFF'D 277 U.S. 151.  A FEW YEARS LATER, IN GAMBERA V.
BERGOTY, 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, 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, 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., 179 F.2D 597, 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. 

FN4  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. 

FN5  344 U.S. 810. 

FN6  SEE PLAMALS V. PINAR DEL RIO, 277 U.S. 151. 

FN7  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." 

FN8  SECTION 1, 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 PROVIDED
CERTAIN REGULATIONS AFFECTING THE DUTIES OF CREW MEMBERS ABOARD "ALL
MERCHANT VESSELS OF THE UNITED STATES."  SECTION 5 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 SET FORTH CERTAIN
SANITATION REQUIREMENTS FOR "MERCHANT VESSELS OF THE UNITED STATES." 
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. 

FN9  SECS. 4, 11, AND 14.  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; SANDBERG V. MCDONALD, 248 U.S. 185, AND STRATHEARN S.S.
CO. V. DILLON, 252 U.S. 348. 

SHOULD ALSO BE APPLICABLE TO FOREIGN VESSELS LEAVING UNITED STATES
PORTS. 

FN10  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. 

FN11  PLAMALS V. PINAR DEL RIO, N. 6, SUPRA. 

FN12  SEE THE FAMOUS OPINION OF MR. JUSTICE STORY IN DE LOVIO V.
BOIT, FED. CAS. NO. 3,776, 2 GALL.  398; THE SALLY, 8 CRANCH 382 AND 2
CRANCH 406; THE SCOTIA, 14 WALL.  170; DICKINSON, 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. 

FN13  SEE SLATER V. MEXICAN NATIONAL R. CO., 194 U.S. 120; NEW YORK
CENTRAL R. CO. V. CHISHOLM, 268 U.S. 29; RHEINSTEIN, THE PLACE OF
WRONG, 19 TULANE L. REV. 4, 165; CF.  SANDBERG V. MCDONALD, 248 U.S.
185, 195. 

FN14  CARR V. FRACIS TIMES & CO., (1902) A.C. 176; CF. URAVIC V.
JARKA CO., 282 U.S. 234.  SEE RESTATEMENT, CONFLICT OF LAWS, SEC. 404. 

FN15  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. 

FN16  SEE CUBA WORKMEN'S COMPENSATION LAW, DECREE NO. 2687, NOVEMBER
15, 1933, ARTS. XI, XL. 

FN17  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 &
COLOMBOS, INTERNATIONAL LAW OF THE SEA (2D ED.), 201. 

FN18  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 COLUMBOS, 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. 

FN19  WILDENHUS'S CASE, 120 U.S. 1; BROWN V. DUCHESNE, 19 HOW.  183. 
FOR APPLICATION OF THIS DOCTRINE IN TORT CASES SEE BONSALEM V. BYRON
S.S. CO., 50 F.2D 114; CAIN V. ALPHA S.S. CORP., 35 F.2D 717; GRAND
TRUNK R. CO. V. WRIGHT, 21 F.2D 814; RESTATEMENT, CONFLICT OF LAWS,
SEC. 405. 

FN20  SEE ALSO RAINEY V. NEW YORK & P.S.S. CO., 216 F. 449. 

FN21  SEE URAVIC V. JARKA CO., SUPRA; SHORTER V. BERMUDA & WEST
INDIES S.S. CO., 57 F.2D 313; GAMBERA V. BERGOTY, 132 F.2D 414.  BUT
SEE THE ORISKANY, 3 F. SUPP. 805; CLARK V. MONTEZUMA TRANSPORTATION
CO., 217 APP. DIV. 172, 216 N.Y. SUPP. 295. 

FN22  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. SECS. 11, 808;
DENMARK, MARITIME LAW OF MAY 7, 1937, SEC. 1. 

FN23  MCFEE, THE LAW OF THE SEA, 152-154.  SEE MERCHANT MARINE STUDY
AND INVESTIGATION (TRANSFER OF AMERICAN SHIPS TO FOREIGN REGISTRY),
HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE, 81ST CONG., 1ST SESS. 

FN24  SEE GERRADIN V. UNITED FRUIT CO., 60 F.2D 927; CF. CENTRAL
VERMONT CO. V. DURNING, 294 U.S. 33. 

FN25  SEE YNTEMA, "AUTONOMY" IN CHOICE OF LAW, 1 AM. J. COMP. L.
341. 

FN26  THE SCOTLAND, 105 U.S. 24; THE TITANIC, 233 U.S. 718.  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. 

FN27  "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.  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.  DICEY, CONFLICT OF LAWS, 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 STEAMSHIP CO., 130 U.S. 527.  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?  ...  .  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, AT 732-733 (PER HOLMES, J.). 

FN28  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. 

FN29  CF. THE PETERHOFF, 5 WALL.  28, 57:  "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." 

MR. JUSTICE BLACK AGREES WITH THE COURT OF APPEALS AND WOULD AFFIRM
ITS JUDGMENT. 

MR. JUSTICE CLARK, NOT HAVING HEARD ORAL ARGUMENT, TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :
























TIMES-PICAYUNE PUBLISHING CO. V. UNITED STATES 345 U.S. 594 


NO. 374.  ARGUED MARCH 11, 1953 - DECIDED MAY 25, 1953 - 105 F. SUPP.
670, REVERSED. 


A PUBLISHING COMPANY OWNS AND PUBLISHES IN NEW ORLEANS A MORNING AND
EVENING NEWSPAPER.  ITS SOLE COMPETITOR IS THE DAILY NEWSPAPER FIELD IS
AN INDEPENDENT EVENING NEWSPAPER.  CLASSIFIED AND GENERAL DISPLAY
ADVERTISERS IN THE COMPANY'S PUBLICATIONS MAY PURCHASE ONLY COMBINED
INSERTIONS APPEARING IN BOTH ITS MORNING AND EVENING PAPERS, NOT IN
EITHER SEPARATELY.  THE UNITED STATES BROUGHT A CIVIL SUIT AGAINST THE
COMPANY UNDER THE SHERMAN ACT, CHALLENGING THE USE OF THESE "UNIT"
CONTRACTS AS AN UNREASONABLE RESTRAINT OF TRADE IN VIOLATION OF SEC. 1,
AND AS AN ATTEMPT TO MONOPOLIZE TRADE IN VIOLATION OF SEC. 2.  HELD:
THE RECORD IN THIS CASE DOES NOT ESTABLISH THE CHARGED VIOLATIONS OF
SEC. 1 AND SEC. 2 OF THE SHERMAN ACT.  PP. 596-628. 

(A) THE CHALLENGED ACTIVITIES OF THE COMPANY CONSTITUTE INTERSTATE
COMMERCE WITHIN THE MEANING OF THE SHERMAN ACT.  P. 602, N. 11. 

(B)  A "TYING" ARRANGEMENT VIOLATES SEC. 1 OF THE SHERMAN ACT WHEN A
SELLER ENJOYS A MONOPOLISTIC POSITION IN THE MARKET FOR THE "TYING" A
PRODUCT AND A SUBSTANTIAL VOLUME OF COMMERCE IN THE "TIED" PRODUCT IS
RESTRAINED.  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392. 
PP. 608-609. 

(C)  SINCE THE CHARGE AGAINST THE COMPANY WAS NOT OF TYING SALES TO
ITS READERS BUT ONLY TO BUYERS OF GENERAL AND CLASSIFIED SPACE IN ITS
PAPERS, DOMINANCE IN THE NEW ORLEANS NEWSPAPER ADVERTISING MARKET, NOT
IN THE READERSHIP, IS THE DECISIVE FACTOR IN DETERMINING THE LEGALITY
OF THE COMPANY'S UNIT PLAN.  P. 610. 

(D)  SECTION 2 OF THE SHERMAN ACT OUTLAWS MONOPOLIZATION OF ANY
"APPRECIABLE PART" OF INTERSTATE COMMERCE, AND SEC. 1 BANS UNREASONABLE
RESTRAINTS IRRESPECTIVE OF THE AMOUNT OF COMMERCE INVOLVED.  P. 611. 

(E)  THE ESSENCE OF ILLEGALITY IN TYING AGREEMENTS IS THE WIELDING OF
MONOPOLISTIC LEVERAGE; A SELLER EXPLOITS HIS DOMINANT POSITION IN ONE
MARKET AND EXPAND INTO ANOTHER.  SOLELY FOR TESTING THE STRENGTH OF
THAT LEVER, THE WHOLE AND NOT PART OF A RELEVANT MARKET MUST BE
ASSIGNED CONTROLLING WEIGHT.  P. 611. 

(F)  THE COMPANY'S MORNING NEWSPAPER DID NOT ENJOY IN THE NEWSPAPER
ADVERTISING MARKET IN NEW ORLEANS THAT POSITION OF "DOMINANCE" WHICH,
TOGETHER WITH A "NOT INSUBSTANTIAL" VOLUME OF TRADE IN THE "TIED"
PRODUCT, WOULD RESULT IN A SHERMAN ACT OFFENSE UNDER THE RULE OF
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392.  PP. 608-613. 

(G)  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.  PP. 613-614. 

(H)  IN THE ABSENCE OF EVIDENCE DEMONSTRATING TWO DISTINCT
COMMODITIES SOLD BY THE PUBLISHING COMPANY, NEITHER THE RATIONALE NOR
THE DOCTRINES OF THE "TYING" CASES CAN DISPOSE OF THE COMPANY'S
ADVERTISING CONTRACTS CHALLENGED HERE.  THEY MUST THEREFORE BE TESTED
UNDER THE SHERMAN ACT'S GENERAL PROHIBITION ON UNREASONABLE RESTRAINTS
OF TRADE.  PP. 613-615. 

(I)  THE INQUIRY TO DETERMINE REASONABLENESS UNDER SEC. 1 IN THIS
CASE MUST FOCUS ON THE PERCENTAGE OF BUSINESS CONTROLLED, THE STRENGTH
OF THE COMPETITION, AND WHETHER THE CHALLENGED ACTIVITY SPRINGS FROM
BUSINESS REQUIREMENTS OR FROM PURPOSE TO MONOPOLIZE.  P. 615. 

(J)  THE FACTUAL DATA IN THE RECORD IN THIS CASE DO NOT DEMONSTRATE
THAT THE COMPANY'S ADVERTISING CONTRACTS UNDULY HANDICAPPED THE
EXISTING COMPETING NEWSPAPER.  PP. 615-622. 

(K)  THE GOVERNMENT HAS PROVED IN THIS CASE NEITHER ACTUAL UNLAWFUL
EFFECTS NOR FACTS WHICH RADIATE A POTENTIAL FOR FUTURE HARM.  P. 622. 

(L)  WHILE EVEN OTHERWISE REASONABLE TRADE ARRANGEMENTS MUST FALL IF
CONCEIVED TO ACHIEVE FORBIDDEN ENDS, THE COMPANY'S ADOPTION OF THE UNIT
PLAN IN THIS CASE WAS PREDOMINANTLY MOTIVATED BY LEGITIMATE BUSINESS
AIMS.  P. 622. 

(M)  ALTHOUGH EMULATION OF THE COMPETITOR'S ILLEGAL PLAN DOES NOT
JUSTIFY AN UNLAWFUL TRADE PRACTICE, THAT FACTOR IS RELEVANT IN
DETERMINING INTENT, PARTICULARLY WHEN PLANNED INJURY TO THAT COMPETITOR
IS THE CRUX OF THE CHARGE OF SHERMAN ACT VIOLATION.  P. 623. 

(N)  ALTHOUGH LONG-TOLERATED TRADE ARRANGEMENTS ACQUIRE NO VESTED
IMMUNITY UNDER THE SHERMAN ACT, THAT CONSIDERATION IS RELEVANT WHEN
MONOPOLISTIC PURPOSE RATHER THAN EFFECT IS TO BE GAUGED.  PP. 623-624. 

(O)  THE RECORD IN THIS CASE SHOWS NEITHER UNLAWFUL EFFECTS NOR
AIMS.  PP. 615-624. 

(P)  THE COMPANY'S REFUSAL TO SELL ADVERTISING SPACE EXCEPT EN BLOC,
VIEWED ALONE, IN THE CIRCUMSTANCES OF THIS CASE, DOES NOT CONSTITUTE A
VIOLATION OF THE SHERMAN ACT.  PP. 624-626. 

(Q)  A SPECIFIC INTENT TO DESTROY COMPETITION OR TO BUILD MONOPOLY IS
ESSENTIAL TO GUILT OF AN ATTEMPT TO MONOPOLIZE IN VIOLATION OF SEC. 2
OF THE SHERMAN ACT, AND SUCH INTENT IS NOT ESTABLISHED BY THE RECORD IN
THIS CASE.  PP. 626-627. 

TIMES-PICAYUNE PUBLISHING CO. ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA.* 

*TOGETHER WITH NO. 375, UNITED STATES V. TIMES-PICAYUNE PUBLISHING
CO. ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

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.  (FN1)
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 SEC. 1, AND AS TOOLS IN AN
ATTEMPT TO MONOPOLIZE A SEGMENT OF INTERSTATE COMMERCE, IN VIOLATION OF
SEC. 2.  (FN2) 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.  (FN3)  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.  (FN4) 

TESTIMONY IN A VOLUMINOUS RECORD RETRACES A HISTORY OF OVER TWENTY
FIVE YEARS.  (FN5)  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 RESIDENT OF NEW ORLEANS. 

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
188,402 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. 

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
SECS. 1 AND 2 OF THE SHERMAN ACT. 

AFTER THE DISTRICT COURT AT THE OUTSET DENIED THE GOVERNMENT'S MOTION
FOR PARTIAL SUMMARY JUDGMENT HOLDING THE UNIT CONTRACTS PER SE
VIOLATIONS OF SEC. 1, THE CASE WENT TO TRIAL AND EVENTUATED IN
COMPREHENSIVE AND DETAILED FINDINGS OF FACT:  (FN6)  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." 
(FN7) 

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.  (FN8)
POSTULATING THAT CONTRACTS FORECLOSING COMPETITORS FROM A SUBSTANTIAL
PART OF THE MARKET RESTRAIN TRADE WITHIN THE MEANING OF SEC. 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."  (FN9)
FURTHER, A VIOLATION OF SEC. 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 BUDEGETARY LIMITATIONS OR FINANCIAL
INABILITY PURCHASE SPACE IN BOTH AFTERNOON NEWSPAPERS."  (FN10) 

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 PURCHASES OR 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.  (FN11) 

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, 326
U.S. 1, 20 (1945); CF. WIEMAN V. UPDEGRAFF, 344 U.S. 183, 191 (1952);
BURSTYN, INC. V. WILSON, 343 U.S. 495, 501 (1952).  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., 297 U.S. 233, 250 (1936); NEAR V.
MINNESOTA, 283 U.S. 697, 716-718 (1931).  THE PRESS, IN FACT, "SERVES
ONE OF THE MOST VITAL OF ALL GENERAL INTERESTS:  THE DISSEMINATION OF
NEWS FROM AS MANY 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."  (FN12)  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.  (FN13)
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.  (FN14)  CONCURRENTLY, DAILY NEWSPAPER
COMPETITION WITHIN INDIVIDUAL CITIES HAS BROWN 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.  (FN15)  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. 

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.  (FN16)  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%.  (FN17)  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. 
(FN18)  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.  (FN19)  THUS A
NEWCOMER IN THE DAILY NEWSPAPER BUSINESS COULD CALCULATE 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. 

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 "TYING
AGREEMENTS SERVE HARDLY ANY PURPOSE BEYOND THE SUPPRESSION OF
COMPETITION."  STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, 337
U.S. 293, 305 (1949).  (FN20)  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 "IN 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., AT 306. 
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. 

FOR THAT REASON, TYING AGREEMENTS FARE HARSHLY UNDER THE LAWS
FORBIDDING RESTRAINTS OF TRADE.  FEDERAL TRADE COMMISSION V. GRATZ, 253
U.S. 421 (1920), 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 SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT.  (FN21)  UNITED
SHOE MACHINERY CORP. V. UNITED STATES, 258 U.S. 451 (1922), (FN22)
HELD, HOWEVER, THAT A SELLER OCCUPYING A "DOMINANT POSITION" IN THE
SHOE MACHINERY INDUSTRY, WITHOUT MORE, VIOLATED SEC. 3 OF THE CLAYTON
ACT BY CONTRACTS TYING TO THE LEASE OF HIS MACHINES THE PURCHASE OF
OTHER TYPES OF MACHINERY AND INCIDENTAL SUPPLIES.  (FN23)  POTENTIAL
LESSENING OF COMPETITION, REQUISITE TO ILLEGALITY UNDER SEC. 3, WAS
AUTOMATICALLY INFERRED FROM THE SELLER'S "DOMINATING POSITION."  ID.,
AT 457-458.  FEDERAL TRADE COMMISSION V. SINCLAIR REFINING CO., 261
U.S. 463 (1923), 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., AT
474-475.   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., 299 U.S.
3 (1936).  (FN24)  THE BOUNDS OF THAT DOCTRINE WERE DRAWN BY
INTERNATIONAL BUSINESS MACHINES CORP. V. UNITED STATES.  298 U.S. 131
(1936).  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, SEC. 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., AT 136, 139.  (FN25) 

WITH ITS DECISION IN INTERNATIONAL SALT CO. V. UNITED STATES, 332
U.S. 392 (1947), 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 SEC. 3 OF THE CLAYTON ACT
AND SEC. 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., AT 396.  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, NN. 7-8.  AND SINCE THE COURT DEEMED IT "UNREASONABLE,
PER SE, TO FORECLOSE COMPETITORS FROM ANY SUBSTANTIAL MARKET," NEITHER
COULD THE TYING ARRANGEMENT SURVIVE SEC. 1 OF THE SHERMAN ACT.  332
U.S., AT 396.  THAT PRINCIPLE UNDERPINNED THE DECISIONS IN THE MOVIE
CASES, HOLDING UNLAWFUL THE "BLOCKBOOKING" OF COPYRIGHTED FILMS BY
LESSORS, UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131, 156-159
(1948), 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, 334 U.S. 100, 106-108 (1948). 
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 SEC. 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 SEC. 1 OF THE SHERMAN ACT WHENEVER BOTH
CONDITIONS ARE MET.  (FN26)  IN EITHER CASE, THE ARRANGEMENT
TRANSGRESSES SEC. 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., 344 U.S. 392, 395 (1953); FEDERAL TRADE COMMISSION V. CEMENT
INSTITUTE, 333 U.S. 683, 690-694 (1948); FASHION ORIGINATORS' GUILD V.
FEDERAL TRADE COMMISSION, 312 U.S. 457, 463 (1941). 

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.  (FN27) 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., 334 U.S. 495, 507, N. 7 (1948); FASHION
ORIGINATORS' GUILD V. FEDERAL TRADE COMMISSION, 312 U.S. 457, 463
(1941), THE GOVERNMENT HERE MUST MEASURE UP TO THE CRITERIA OF THE MORE
STRINGENT LAW.  SEE STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES,
337 U.S. 293, 297, 311-314 (1949); UNITED SHOE MACHINERY CORP. V.
UNITED STATES, 258 U.S. 451, 459-460 (1922). 

ONCE GRANTED THAT THE VOLUME OF COMMERCE AFFECTED WAS NOT
"INSIGNIFICANT OR INSUBSTANTIAL," (FN28) 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 V. UNITED
STATES, 342 U.S. 143, 149-150, 152-153 (1951); UNITED STATES V.
PARAMOUNT PICTURES, SUPRA, AT 166-167; INDIANA FARMER'S GUIDE PUB. CO.
V. PRAIRIE FARMER PUB. CO., 293 U.S. 268, 278-279 (1934). 

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
SEC. 1 UNREASONABLE RESTRAINTS ARE BANNED IRRESPECTIVE OF THE AMOUNT OF
INVOLVED.  LORAIN JOURNAL V. UNITED STATES, SUPRA, AT 151, N. 6; UNITED
STATES V. PARAMOUNT PICTURES, SUPRA, AT 173; UNITED STATES V. YELLOW
CAB CO., 332 U.S. 218, 225-226 (1947).  (FN29)  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, AT 524. 

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.  (FN30)  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,
(FN31) THE TIMES-PICAYUNE'S SALES OF BOTH GENERAL AND CLASSIFIED LINAGE
OVER THE YEARS HOVERED AROUND 40%.  (FN32)  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, AT 528; CF. UNITED STATES V. NATIONAL
LEAD CO., 332 U.S. 319, 352-353 (1947).  IF EACH OF THE NEW ORLEANS
PUBLICATIONS SHARED EQUALLY IN THE TOTAL VOLUME OF LINAGE, THE TIMES
PICAYUNE WOULD HAVE SOLD 33 1/3%; IN THE ABSENCE OF PATENT OR COPYRIGHT
CONTROL, THE SMALL EXISTING INCREMENT IN THE CIRCUMSTANCES HERE
DISCLOSED (FN33) 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. 

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.  (FN34)  WE MUST ASSUME, THEREFORE, THAT READERSHIP "BOUGHT"
BY ADVERTISERS IN THE TIMES-PICAYUNE WAS THE SELFSAME "PRODUCT" SOLD BY
THE STATES AND, FOR THAT MATTER, THE ITEM. 

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 SELLER IN THE SECOND, BECAUSE FOR
PRESENT PURPOSES THE PRODUCTS ARE IDENTICAL AND THE MARKET THE SAME. 
CF. STANDARD OIL CO. (INDIANA) V. UNITED STATES, 283 U.S. 163, 176-178
(1931); UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 424
(1945); COMPARE INDIANA FARMER'S GUIDE PUB. CO. V. PRAIRIE FARMER PUB.
CO., 293 U.S. 268, 278-280 (1934).  IN SHORT, NEITHER THE RATIONALE NOR
THE DOCTRINES EVOLVED BY THE "TYING" CASES CAN DISPOSE OF THE
PUBLISHING COMPANY'S ARRANGEMENTS CHALLENGED HERE. 

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 SEC. 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., 334 U.S. 495, 522 (1948).  SINCE THE REQUISITE
INTENT IS INFERRED WHENEVER UNLAWFUL EFFECTS ARE FOUND, UNITED STATES
V. GRIFFITH, 334 U.S. 100, 105, 108 (1948); UNITED STATES V. PATTEN,
226 U.S. 525, 543 (1913), AND THE RULE OF INTERNATIONAL SALT IS OUT OF
THE WAY, THE CONTRACTS MAY YET BE BANNED BY SEC. 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, NOW WORDS.  UNITED STATES V. MASONITE CORP., 316
U.S. 265, 280 (1942).  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, 332
U.S. 392, 397 (1947); SEE UNITED STATES V. PARAMOUNT PICTURES, 334 U.S.
131, 156-158 (1948), (FN35) THE "OPEN END" FEATURE OF THE CONTRACTS
HERE MINIMIZES THE RESTRAINT.  FOR OUR INQUIRY TO DETERMINE
REASONABLENESS UNDER SEC. 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 527; COMPARE STANDARD OIL CO. OF CALIFORNIA V. UNITED
STATES, 337 U.S. 293, 312-313 (1949).    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, (FN36) IS THUS
ELIMINATED FROM CONSIDERATION.  CONSEQUENTLY, ONLY CLASSIFIED AND
DISPLAY LINAGE DATA CAN BE SCRUTINIZED FOR POSSIBLE FORBIDDEN EFFECTS. 

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.  (FN37)  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. 

AT THE END OF THAT YEAR THE ITEM COMPANY'S MORNING TRIBUNE SUSPENDED
PUBLICATION; (FN38) 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%. 

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. 
(FN39)  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%. 

IN THAT YEAR, A REALLOCATION OF ADVERTISING ACCOUNTS ALSO TOOK
PLACE.  (FN40)  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. 

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. 
(FN41)  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. 

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.  (FN42)
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
32% 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%. (FN43)  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 NEW 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. 

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; (FN44) 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, 334 U.S.
100, 107 (1948); AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781,
814 (1946); ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 13 (1945). 
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, 337 U.S. 293, 311-313
(1949).  AND THE CASE HAS NOT MET THE PER SE CRITERIA OF SHERMAN ACT
SEC. 1 FROM WHICH PROSCRIBED EFFECT AUTOMATICALLY MUST BE INFERRED. 
CF. INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392 (1947). 
UNDER THE BROAD GENERAL POLICY DIRECTED BY SEC. 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. 

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., 310 U.S. 150, 224, N. 59 (1940);
UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392, 402 (1927).  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. STALEY MFG. CO., 324 U.S. 746, 753-754 (1945).  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.  (FN45) 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. 

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,
AT 225-228.  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 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.  (FN46)  IN SUMMARY, NEITHER UNLAWFUL EFFECTS NOR
AIMS ARE SHOWN BY THE RECORD.  (FN47) 

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.  (FN48)  THOUGH GROUP BOYCOTTS,
OR CONCERTED REFUSALS TO DEAL, CLEARLY RUN AFOUL OF SEC. 1, KIEFER
STEWART CO. V. SEAGRAM & SONS, 340 U.S. 211, 214 (1951); ASSOCIATED
PRESS V. UNITED STATES, 326 U.S. 1 (1945); SEE UNITED STATES V.
COLUMBIA STEEL CO., 334 U.S. 495, 522 (1948), DIFFERENT CRITERIA HAVE
LONG APPLIED TO QUALIFY THE RIGHTS OF AN INDIVIDUAL SELLER.  BEGINNING
WITH UNITED STATES V. COLGATE & CO., 250 U.S. 300 (1919), THIS COURT'S
DECISIONS HAVE RECOGNIZED INDIVIDUAL REFUSALS TO SELL AS A GENERAL
RIGHT, THOUGH "NEITHER ABSOLUTE NOR EXEMPT FROM REGULATION."  LORAIN
JOURNAL V. UNITED STATES, 342 U.S. 143, 155 (1951).  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 V. UNITED STATES, SUPRA; UNITED
STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707, 721-723 (1944);
EASTMAN KODAK CO. V. SOUTHERN PHOTO MATERIALS CO., 273 U.S. 359, 375
(1927); UNITED STATES V. SCHRADER'S SON, INC., 252 U.S. 85, 99 (1920);
CF. AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 808 (1946);
FEDERAL TRADE COMMISSION V. BEECH-NUT PACKING CO., 257 U.S. 441, 453
455 (1922).  (FN49)  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.    IN OUR VIEW, HOWEVER, NO ADDITIONAL
CIRCUMSTANCES BRING THIS CASE WITHIN SEC. 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.  (FN50)  WITH THE ADVERTISING
CONTRACTS IN THIS PROCEEDING VIEWED AS IN THEMSELVES LAWFUL AND NO
FURTHER ELEMENTS OF COMBINATION APPARENT IN THE CASE, SEC. 2 CRITERIA
MUST BECOME DISPOSITIVE HERE.    AN INSUFFICIENT SHOWING OF SPECIFIC
INTENT VITIATES THIS PART OF THE GOVERNMENT'S CASE.  WHILE THE
COMPLETED OFFENSE OF MONOPOLIZATION UNDER SEC. 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, 148 F.2D 416, 431-432 (1945);
UNITED STATES V. GRIFFITH, 334 U.S. 100, 105 (1948); AMERICAN TOBACCO
CO. V. UNITED STATES, 328 U.S. 781, 814 (1946); SWIFT & CO. V. UNITED
STATES, 196 U.S. 375, 396 (1905).  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 V. UNITED STATES, 342 U.S. 143 (1951), 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., AT 149, 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.  (FN51)  BECAUSE THESE PILLARS OF
THE GOVERNMENT'S SEC. 2 CASE THUS COLLAPSED IN THE DISTRICT COURT, ONLY
THE ADOPTION OF THE UNIT RATES REMAINS TO SUPPORT THE ALLEGED VIOLATION
OF SEC. 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 SEC. 2. 

WE CONCLUDE, THEREFORE, THAT THIS RECORD DOES NOT ESTABLISH THE
CHARGED VIOLATIONS OF SEC. 1 AND SEC. 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. 

FN1  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. 

FN2  "EVERY CONTRACT, COMBINATION IN THE FORM OF TRUST OR OTHERWISE,
OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE AMONT THE SEVERAL
STATES, OR WITH FOREIGN NATIONS, IS DECLARED TO BE ILLEGAL: ...  ."  15
U.S.C. SEC. 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.
SEC. 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. SEC. 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." 

FN3  105 F. SUPP. 670 (D.C.E.D. LA. 1952). 

FN4  15 U.S.C. (SUPP. V) SEC. 29.  PROBABLE JURISDICTION WAS NOTED ON
NOVEMBER 10, 1952. 

FN5  THE PRINTED RECORD HERE COMPRISES 1,644 PAGES OF TESTIMONY AND
EXHIBITS OF VARIOUS DEGREES OF PERTINENCE TO THE ISSUES. 

FN6  SEE R. 1252-1261. 

FN7  FDG.  31; CF. 105 F. SUPP., AT 678. 

FN8  IBID. 

FN9  ID., AT 678-679. 

FN10  ID., AT 681. 

FN11  IN THE LIGHT OF THIS COURT'S BROAD INTERPREATIONS 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 V. UNITED STATES, 342 U.S. 143 (1951);
UNITED STATES V. NATIONAL ASSN. OF REAL ESTATE BOARDS, 339 U.S. 485
(1950); MANDEVILLE ISLAND FARMS V. AMERICAN CRYSTAL SUGAR CO., 334 U.S.
219 (1948); UNITED STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293
(1945); UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533
(1944); WICKARD V. FILBURN, 317 U.S. 111 (1942); INDIANA FARMER'S GUIDE
PUB. CO. V. PRAIRIE FARMER PUB. CO., 293 U.S. 268 (1934). 

FN12  LEARNED HAND, J., IN UNITED STATES V. ASSOCIATED PRESS, 52 F.
SUPP. 362, 372 (D.C.S.D.N.Y. 1943), AFF'D, 326 U.S. 1 (1945). 

FN13  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 DAILY 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). 

FN14  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. 

FN15  61 YALE L.J., AT 950. 

FN16  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. 

FN17  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). 

FN18  FDG.  26. 

FN19  COMPARISON BETWEEN BULLETIN, NOTE 14, SUPRA, AT TABLES 2 AND 3,
AND EDITOR & PUBLISHER INTERNATIONAL YEARBOOK NUMBERS 1929 TO 1953. 

FN20  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 HAR. 
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). 

FN21  "UNFAIR METHODS OF COMPETITION IN COMMERCE  ...  ARE HEREBY
DECLARED UNLAWFUL."  15 U.S.C. SEC. 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 428.  "ALL QUESTION OF MONOPOLY OR COMBINATION," THEREFORE,
WAS "OUT OF THE WAY."  IBID. 

FN22  UNITED STATES V. UNITED SHOE MACHINERY CO., 247 U.S. 32 (1918),
IS NOT RELIED ON BY THE PARTIES. 

FN23  "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. SEC. 14. 

THAT SECTION RELATES TO SIMPLE EXCLUSIVE DEALING ARRANGEMENTS, CF.,
E.G., STANDARD OIL CO. OF CALIFORNIA V. UNITED STATES, 337 U.S. 293
(1949), 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, 298 U.S. 131, 135 (1936); THOMSON MFG. CO. V. FEDERAL TRADE
COMMISSION, 150 F.2D 952, 956 (1945); SIGNODE STEEL STRAPPING CO. V.
FEDERAL TRADE COMMISSION, 132 F.2D 48, 52 (1942); LORD V. RADIO CORP.
OF AMERICA, 24 F.2D 565, 568 (1928).  CF. FEDERAL TRADE COMMISSION V.
SINCLAIR REFINING CO., 261 U.S. 463, 473-474 (1923). 

FN24  AFFIRMING, PER CURIAM, 80 F.2D 641 (1935). 

FN25  SEE ALSO SIGNODE STEEL STRAPPING CO. V. FEDERAL TRADE
COMMISSION, 132 F.2D 48, 54 (1942); THOMSON MFG. CO. V. FEDERAL TRADE
COMMISSION, 150 F.2D 952, 958 (1945). 

FN26  DEALING WITH THE MONOPOLIZATION OFFENSE UNDER SHERMAN ACT SEC.
2, A CHARGE NOT RAISED OR CONSIDERED HERE, THE COURT IN UNITED STATES
V. GRIFFITH, 334 U.S. 100, 106-108 (1948), 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 SEC. 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 SEC. 1  ...  .  THE 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 BEGET 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). 

FN27  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 SEC. 2 OF
THE CLAYTON ACT (CF. NOTE 23, SUPRA).  81 CONG. REC. APP. 2336-2337. 
CF. FLEETWAY, INC. V. PUBLIC SERVICE INTERSTATE TRANSP.  CO., 72 F.2D
761 (1934); UNITED STATES V. INVESTORS DIVERSIFIED SERVICES, 102 F.
SUPP. 645 (1951).  WE EXPRESS NO VIEWS ON THAT STATUTORY
INTERPRETATION.  COMPARE NOTE 11, SUPRA. 

FN28  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. 

FN29  SEE ALSO UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150,
224, N. 59 (1940); GAMCO, INC. V. PROVIDENCE FRUIT & PRODUCE BLDG., 194
F.2D 484 (1952); WHITE BEAR THEATRE CORP. V. STATE THEATRE CORP., 129
F.2D 600 (1942). 

FN30  "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,
337 U.S. 293, 307 (1949).  CF. ID., AT 303; OXFORD VARNISH CORP. V.
AULT & WIBORG CORP., 83 F.2D 764, 766 (1936); MILLER, UNFAIR
COMPETITION (1941), 199; LOCKHART AND SACKS, NOTE 20, SUPRA, AT 943
944; NOTE, 49 COL. L. REV. 241, 243 (1949).    FN31  FOR EVERY PRODUCT,
SUBSTITUTES EXIST.  BUT A RELEVANT MARKET CANNOT MEANINGFULLY
EONCOMPASS 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. 

FN32  SEE TABLES, NOTES 37 AND 39, INFRA. 

FN33  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., 344 U.S. 392
(1953); SIGNODE STEEL STRAPPING CO. V. FEDERAL TRADE COMMISSION, 132
F.2D 48, 54 (1942).  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., 332 U.S. 319, 346-348, 352-353 (1947);
UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495, 527-528 (1948). 
FEWNESS OF SELLERS, ON THE OTHER HAND, MAY FACILITATE CONCERTED
ACTION.  SEE FELLNER, COMPETITION AMONG THE FEW (1949), PASSIM;
STIGLER, THE THEORY OF PRICE, 228 ET SEQ. (REV. ED. 1952). 

FN34  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. 

FN35  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 397.  AND THE "BLOCKBOOKING" 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. 

FN36  SEE 61 YALE L.J., AT 977, N. 162; NOTE 43, INFRA. 

FN37  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-              STATES              ITEM
  TRIBUNE

               PICAYUNE           EVENING             EVENING
  MORNING

  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             3,245,566           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). 

FN38  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. 

FN39  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-              STATES         ITEM

           PICAYUNE            EVENING             EVENING

           MORNING           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. 

FN40  DATA ARE DERIVED FROM TABLES AND GRAPHS AT R. 1453-1456. 

FN41  SEE TABLE AT NOTE 39, SUPRA. 

FN42  MEDIA RECORDS, 11 (1950). 

FN43  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., 334 U.S. 37 (1948), 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., AT 49. 

FN44 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. 

FN45  R. 1127-1129.  CF. BORDEN, TAYLOR AND HOVDE, NATIONAL
ADVERTISING IN NEWSPAPERS, 461-462 (1946).  OBVIOUSLY, EQUIVALENT
ECONOMIES FLOW FROM VOLUNTARY UNIT INSERTIONS. 

FN46  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. 

FN47  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 OR 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 675-676.  THAT EXPLANATION ACCORDS WITH
PREVAILING AGENCY PRACTICES AND ATTITUDES.  SEE BORDEN, TAYLOR AND
HOVDE, NATIONAL ADVERTISING IN NEWSPAPERS, 207-212 (1946). 

FN48  SEE, GENERALLY, COMMENT, REFUSALS TO SELL AND PUBLIC CONTROL OF
COMPETITION, 58 YALE L.J. 1121 (1949). 

FN49  AND SEE UNITED STATES V. KLEARFLAX LINEN LOOMS, 63 F. SUPP. 32
(1945).  "IF 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 SECS. 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
SEC. 2 WHEN IT USES ITS MONOPOLY TO DESTROY THREATENED COMPETITION." 
LORAIN JOURNAL V. UNITED STATES, 342 U.S. 143, 154 (1951). 

FN50  COMPARE TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S.
593, 598, 606 (1951); NELSON RADIO & SUPPLY CO. V. MOTOROLA, 200 F.2D
911, 914 (1952); UNITED STATES V. LORAIN JOURNAL, 92 F. SUPP. 794,799
800 (1950). 

FN51  105 F. SUPP., AT 676-677, 680. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS,
AND MR. JUSTICE MINTON JOIN, DISSENTING. 

THE MAJORITY OPINION SEEKS TO AVOID THE EFFECT OF UNITED STATES V.
GRIFFITH, 334 U.S. 100, AND OF INTERNATIONAL SALT CO. V. UNITED STATES,
332 U.S. 392, 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. 

THE COMPLAINT IS THAT THE TIMES-PICAYUNE ENJOYS A DISTINCT, CONCEDED
AND COMPLETE MONOPOLY OF ACCESS 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), "FINDINGS OF FACT SHALL NOT BE SET ASIDE
UNLESS CLEARLY ERRONEOUS  ...  "  AND LORAIN JOURNAL CO. V. UNITED
STATES, 342 U.S. 143.  IN VIEW OF THE DISPOSITION MADE OF THIS CASE BY
THE MAJORITY, IT IS NOT NECESSARY TO DISCUSS THE TERMS OF THE DECREE. 
..END :









UNITED STATES V. W.T. GRANT CO. 345 U.S. 629 


NO. 532.  ARGUED APRIL 9, 1953 - DECIDED MAY 25, 1953 - 112 F. SUPP.
336, AFFIRMED. 


UNDER SEC. 15 OF THE CLAYTON ACT, THE UNITED STATES SUED IN A FEDERAL
DISTRICT COURT TO ENJOIN AN INDIVIDUAL AND SIX CORPORATIONS FROM
VIOLATING SEC. 8 THROUGH THE HOLDING BY THE INDIVIDUAL OF INTERLOCKING
DIRECTORATES IN THREE PAIRS OF COMPETING CORPORATIONS.  THEREAFTER, THE
INDIVIDUAL RESIGNED HIS DIRECTORSHIP IN ONE OUT OF EACH PAIR OF
CORPORATIONS AND FILED AFFIDAVITS DISCLAIMING ANY INTENTION OF RESUMING
SUCH DIRECTORATES.  ON MOTION OF THE DEFENDANTS, THE COURT THEN GRANTED
SUMMARY JUDGMENT DISMISSING THE SUIT.  HELD: 

1.  THE POWER OF THE FEDERAL TRADE COMMISSION UNDER SEC. 11 TO
ENFORCE SEC. 8 IS NOT EXCLUSIVE, AND THE COURT HAD JURISDICTION UNDER
SEC. 15 TO ENTERTAIN THE SUIT.  PP. 631-632. 

2.  THE TERMINATION OF THE INTERLOCKING DIRECTORATES DID NOT RENDER
THE CASE MOOT.  PP.  632-633. 

3.  THE COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO GRANT
INJUNCTIVE RELIEF.  PP. 633-636. 

UNITED STATES V. W.T. GRANT CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

THE DISTRICT COURT DISMISSED THE GOVERNMENT'S SUIT TO ENJOIN
VIOLATIONS OF SEC. 8 OF THE CLAYTON ACT, 15 U.S.C. SEC. 19.  112 F.
SUPP. 336.  ON DIRECT APPEAL TO THIS COURT UNDER 15 U.S.C. SEC. 29,
AFFIRMED, P. 636. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

FOR THE FIRST TIME SINCE THE ENACTMENT OF THE CLAYTON ACT IN 1914 THE
COURT IS CALLED UPON TO CONSIDER SEC. 8'S PROHIBITIONS AGAINST
INTERLOCKING CORPORATE DIRECTORATES.  (FN1)  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 SEC. 8, THE COMPLAINTS ASKED THE COURT
TO ORDER THE PARTICULAR INTERLOCKS TERMINATED AND TO ENJOIN FUTURE
VIOLATIONS OF SEC. 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, (FN2) THEY WERE GRANTED BY THE
DISTRICT JUDGE.  HE CONCLUDED THAT THERE IS NOT "THE SLIGHTEST THREAT
THAT THE DEFENDANTS WILL ATTEMPT ANY FUTURE ACTIVITY IN VIOLATION OF
336, 338.  THE GOVERNMENT BROUGHT THIS DIRECT APPEAL UNDER SEC. 2 OF
THE EXPEDITING ACT, 32 STAT. 823, AS AMENDED, 62 STAT. 989, 15 U.S.C.
(SUPP. V) SEC. 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. 

APPELLEES SUGGEST, WITHOUT ARGUING THE POINT IN EXTENSO, THAT THE
JUDGMENT SHOULD BE AFFIRMED BECAUSE SEC. 11 OF THE CLAYTON ACT VESTS
EXCLUSIVE SEC. 8 ENFORCEMENT POWERS IN THE FEDERAL TRADE COMMISSION. 
(FN3)  SECTION 11 DOES AUTHORIZE THE COMMISSION TO ENFORCE SEC. 8.  BUT
ANY INFERENCE THAT ADMINISTRATIVE JURISDICTION WAS INTENDED TO BE
EXCLUSIVE FALLS BEFORE THE PLAIN WORDS OF SEC. 15:  "THE SEVERAL
DISTRICT COURTS OF THE UNITED STATES ARE HEREBY INVESTED WITH
JURISDICTION TO PREVENT AND RESTRAIN VIOLATIONS OF THIS ACT  ...  ." 
38 STAT. 736, 15 U.S.C. SEC. 25.  AND THE CASES HAVE SPOKEN OF
CONGRESS' DESIGN TO PROVIDE A SCHEME OF DUAL ENFORCEMENT FOR THE
CLAYTON ACT.  UNITED STATES ALKALI EXPORT ASSN. V. UNITED STATES, 325
U.S. 196, 208 (1945); STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293,
310, NOTE 13 (1949).  APPELLEES' FAILURE TO PRESS THE POINT DENOTES ITS
MERITS.  THE DISTRICT COURT PROPERLY ENTERTAINED THE SUITS. 

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 ASSN., 166 U.S. 290 (1897); WALLING V.
HELMERICH & PAYNE, INC., 323 U.S. 37 (1944); HECHT CO. V. BOWLES, 321
U.S. 321 (1944).  A CONTROVERSY MAY REMAIN TO BE SETTLED IN SUCH
CIRCUMSTANCES, UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416,
448 (1945), E.G., A DISPUTE OVER THE LEGALITY OF THE CHALLENGED
PRACTICES.  WALLING V. HELMERICH & PAYNE, INC., SUPRA; CARPENTERS UNION
V. LABOR BOARD, 341 U.S. 707, 715 (1951).  THE DEFENDANT IS FREE TO
RETURN TO HIS OLD WAYS.  (FN4)  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 ASSN.,
SUPRA, AT 309, 310.  FOR TO SAY THAT THE CASE HAS BECOME MOOT MEANS
THAT THE DEFENDANT IS ENTITLED TO A DISMISSAL AS A MATTER OF RIGHT,
LABOR BOARD V. GENERAL MOTORS CORP., 179 F.2D 221 (1950).  THE COURTS
HAVE RIGHTLY REFUSED TO GRANT DEFENDANTS SUCH A POWERFUL WEAPON AGAINST
PUBLIC LAW ENFORCEMENT.  (FN5) 

THE CASE MAY NEVERTHELESS BE MOOT IF THE DEFENDANT CAN DEMONSTRATE
THAT "THERE IS NO REASONABLE EXPECTATION THAT THE WRONG WILL BE
REPEATED."  (FN6)  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. 

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. MYERS MFG. CO., 242 U.S.
202 (1916).  THE PURPOSE OF AN INJUNCTION IS TO PREVENT FUTURE
VIOLATIONS, SWIFT & CO. V. UNITED STATES, 276 U.S. 311, 326 (1928),
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. 

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. 

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.  (FN7)  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 SEC. 8.  (FN8)  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. 

ASSUMING WITH THE GOVERNMENT THAT THE CORPORATIONS WERE PROPERLY
JOINED AS DEFENDANTS, (FN9) 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. 

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
GRANTED."  "THE AFORESAID VIOLATIONS," 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 SEC. 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. 

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. 

FN1  "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. SEC. 19. 

FN2  FED. RULES CIV. PROC. 12(B)(6), 56. 

FN3  "SEC.  11.  THAT AUTHORITY TO ENFORCE COMPLIANCE WITH SECTIONS
2, 3, 7, AND 8 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
2, 3, 7, AND 8 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 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 ON 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
THE TIME FIXED BY SAID ORDER  ...  ."  64 STAT. 1126, 15 U.S.C., SUPP.
V, SEC. 21. 

FN4  CF. UNITED STATES V. HAMBURG-AMERIKANISCHE PACKETFAHRT-ACTIEN
GESELLSCHAFT, 239 U.S. 466 (1916). 

FN5  "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, 343 U.S. 326, 333 (1952). 

FN6  UNITED STATES V. ALUMINUM CO. OF AMERICA, SUPRA, AT P. 448. 

FN7  CF. UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 89
(1950), ON REVIEW OF PARTICULAR ANTITRUST DECREE PROVISIONS. 

FN8  SEE KRAMER, INTERLOCKING DIRECTORSHIPS AND THE CLAYTON ACT AFTER
35 YEARS, 59 YALE L.J. 1266. 

FN9  WE SHOULD NOT BE UNDERSTOOD AS DECIDING WHETHER CORPORATIONS CAN
VIOLATE SEC. 8 OR, FOR OTHER REASONS, BE ENJOINED UNDER THE STATUTE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS, DISSENTING. 

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.  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."  (FN1)  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:  (FN2)    "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." 

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. 

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.  (FN3) 

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. 

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. 

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 SEC. 8 OF THE
CLAYTON ACT.  (FN4)  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 SEC. 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. 

FN1  SEE BRANDEIS, THE ENDLESS CHAIN, HARPER'S WEEKLY, DEC. 6, 1913,
P. 13, QUOTED IN LIEF, THE BRANDEIS GUIDE TO THE MODERN WORLD, P. 111. 

FN2  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. 

FN3  HEARINGS, TEMPORARY NATIONAL ECONOMIC COMMITTEE, 76TH CONG., 3D
SESS., PT. 24, P. 12400. 

FN4  IN UNITED STATES V. SEARS, ROEBUCK & CO., 111 F. SUPP. 614, 616,
DECIDED APRIL 28, 1953, THE COURT RULED THAT CONGRESS INTENDED BY SEC.
8 "TO NIP IN THE BUD INCIPIENT VIOLATIONS OF THE ANTITRUST LAWS BY
REMOVING THE OPPORTUNITY OR TEMPTATION TO SUCH VIOLATIONS THROUGH
INTERLOCKING DIRECTORATES." 
..END :



WELLS V. SIMONDS ABRASIVE CO. 345 U.S. 514 


NO. 394.  ARGUED JANUARY 7, 1953 - DECIDED MAY 18, 1953 - 195 F.2D 814,
AFFIRMED. 


PETITIONER'S DECEDENT WAS KILLED IN ALABAMA BY THE BURSTING OF A
GRINDING WHEEL MANUFACTURED BY RESPONDENT, A CORPORATION WITH ITS
PRINCIPAL PLACE OF BUSINESS IN PENNSYLVANIA.  MORE THAN ONE YEAR BUT
LESS THAN TWO YEARS LATER, PETITIONER SUED FOR DAMAGES IN A FEDERAL
COURT IN PENNSYLVANIA, BASING JURISDICTION ON DIVERSITY OF
CITIZENSHIP.  THE ALABAMA WRONGFUL-DEATH STATUTE PERMITTED SUIT WITHIN
TWO YEARS, BUT THE PENNSYLVANIA STATUTE OUTLAWED SUCH SUITS AFTER ONE
YEAR.  HOLDING THAT THE PENNSYLVANIA RULE GOVERNING CONFLICTS OF LAWS
REQUIRED APPLICATION OF THE PENNSYLVANIA LIMITATION, THE COURT GRANTED
SUMMARY JUDGMENT FOR RESPONDENT.  HELD:  THE PENNSYLVANIA RULE
GOVERNING CONFLICTS OF LAWS DOES NOT VIOLATE THE FULL FAITH AND CREDIT
CLAUSE OF THE CONSTITUTION; AND THE JUDGMENT IS SUSTAINED.  PP. 515
519. 

(A)  APPLYING THE STATUTE OF LIMITATIONS OF THE FORUM TO A FOREIGN
SUBSTANTIVE RIGHT DOES NOT DENY FULL FAITH AND CREDIT.  P. 516. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED MERELY BECAUSE A DIFFERENT
STATUTE OF LIMITATIONS IS INCLUDED IN A FOREIGN STATUTE CREATING A
SUBSTANTIVE RIGHT UNKNOWN TO THE COMMON LAW.  PP. 517-518. 

(C)  ENGEL V. DAVENPORT, 271 U.S. 33; HUGHES V. FETTER, 341 U.S. 609;
AND FIRST NAT. BANK V. UNITED AIR LINES, 342 U.S. 396, DISTINGUISHED. 
PP. 518-519. 

WELLS, ADMINISTRATRIX, V. SIMONDS ABRASIVE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN PETITIONER'S SUIT FOR WRONGFUL DEATH, A FEDERAL DISTRICT COURT
GRANTED SUMMARY JUDGMENT FOR RESPONDENT.  102 F. SUPP. 519.  THE COURT
OF APPEALS AFFIRMED.  195 F.2D 814.  THIS COURT GRANTED CERTIORARI. 
344 U.S. 815.  AFFIRMED, P. 519. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

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. 

THE SECTION OF THE ALABAMA CODE (FN1) 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. 
(FN2)  IN AN OPINION (FN3) 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.  (FN4) 

WE GRANTED CERTIORARI (FN5) LIMITED TO THE QUESTION WHETHER THIS
PENNSYLVANIA CONFLICTS RULE VIOLATES THE FULL FAITH AND CREDIT CLAUSE
(FN6) OF THE FEDERAL CONSTITUTION. 

THE STATES ARE FREE TO ADOPT SUCH RULES OF CONFLICT OF LAWS AS THEY
CHOOSE, KRYGER V. WILSON, 242 U.S. 171 (1916), 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. 

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, 13 PET. 312 (1839); TOWNSEND V. JEMISON, 9
HOW.  407 (1850); BACON V. HOWARD, 20 HOW.  22 (1857).  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 SEC.
603 (1934)."  ORDER OF UNITED COMMERCIAL TRAVELERS V. WOLFE, 331 U.S.
586, 607 (1947).  (FN7) 

THE RULE THAT THE LIMITATIONS OF THE FORUM APPLY (WHICH THIS COURT
HAS SAID MEETS THE REQUIREMENTS OF FULL FAITH AND CREDIT) IS THE USUAL
CONFLICTS RULE OF THE STATES.  (FN8)  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.  (FN9) 

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. 

WE AGREE WITH THE RESPONDENT THAT ENGEL V. DAVENPORT, 271 U.S. 33
(1926), 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. 
(FN10) 

OUR DECISIONS IN HUGHES V. FETTER, 341 U.S. 609 (1951), AND FIRST
NATIONAL BANK V. UNITED AIR LINES, 342 U.S. 396 (1952), 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. 

FN1  "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, SEC. 123. 

FN2  PURDON'S PA. STAT. ANN., 1931, TIT. 12, SEC. 1603. 

FN3  102 F. SUPP. 519 (1951). 

FN4  195 F.2D 814 (1952).  SEE ALSO QUINN V. SIMONDS ABRASIVE CO.,
199 F.2D 416 (1952). 

FN5  344 U.S. 815 (1952). 

FN6  "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, SEC. 1, CL. 1. 

FN7  CF. DISSENTING OPINION BY MR. JUSTICE BLACK, ORDER OF UNITED
COMMERCIAL TRAVELERS V. WOLFE, 331 U.S. 625 (1947). 

FN8  RESTATEMENT, CONFLICT OF LAWS, SEC. 603 (1934). 

FN9  CRISTILLY V. WARNER, 87 CONN. 461, 88 A. 711 (1913), OVERRULED
ON ANOTHER GROUND, DAURY V. FERRARO, 108 CONN. 386, 143 A. 630 (1928);
LOUISVILLE & NASHVILLE R. CO. V. BURKHART, 154 KY. 92, 157 S.W. 18
(1913) (DICTUM); NEGAUBAUER V. GREAT NORTHERN R. CO., 92 MINN. 184, 99
N.W. 620 (1904).  CONTRA:  WHITE V. GOVATOS, 40 DEL. 349, 10 A.2D 524
(1939); TIEFFENBRUN V. FLANNERY, 198 N.C. 397, 151 S.E. 857 (1930);
ROSENZWEIG V. HELLER, 302 PA. 279, 153 A. 346 (1931).  SEE ALSO
RESTATEMENT, CONFLICT OF LAWS, SEC. 397, COMMENT B, AND SEC. 605
(1934). 

FN10  "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. 

MR. JUSTICE CLARK, NOT HAVING HEARD ORAL ARGUMENT, TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MINTON JOIN, DISSENTING. 

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. 

THE RESPONDENT RELIES UPON THE LINE OF CASES THAT BEGAN WITH ERIE R.
CO. V. TOMPKINS, 304 U.S. 64.   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. 

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:  "
...  IT 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.  SEE ALSO SLATER V. MEXICAN
NATIONAL R. CO., 194 U.S. 120, 126; 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. 

KLAXON CO. V. STENTOR CO., 313 U.S. 487, 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.   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 CO., SUPRA, AT 496, 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." 

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.    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. 

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. SEC. 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.  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.  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 109, 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, EVER HELD. 

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, SEEMS TO ME APPLICABLE
HERE.  I HAD SUPPOSED, BEFORE HUGHES V. FETTER, 341 U.S. 609, 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, NOR RAGAN V. MERCHANTS TRANSFER & WAREHOUSE CO., 337 U.S. 530,
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. 

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. 

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.

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, AT 533.   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. 

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 TWELVE 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. 

SUBSEQUENTLY, MR. JUSTICE HOLMES TWICE WROTE FOR THE COURT TO THE
SAME EFFECT.  IN DAVIS V. MILLS, 194 U.S. 451, AT 454, HE SAID: 

"  ...  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.  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  ...  ." 

AND IN ATLANTIC COAST LINE R. CO. V. BURNETTE, 239 U.S. 199, AT 201,
HE WROTE:  "  ...  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  ...  ." 

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, 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." 

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.* 

*SEE GOODRICH, CONFLICT OF LAWS (3D ED.), SEC. 86, FOR DISCUSSION AND
CITATIONS; BLUME AND GEORGE, LIMITATIONS AND THE FEDERAL COURTS, 49
MICH. L. REV. 937. 

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, 340, 177
F.2D 654, 655.  CF. YOUNG V. UNITED STATES, 87 U.S. APP. D.C. 145, 184
F.2D 587.  SEE ALSO WILSON V. MASSENGILL, 124 F.2D 666, CERT. DENIED
316 U.S. 686; MAKI V. COOKE CO., 124 F.2D 663, CERT. DENIED 316 U.S.
686. 

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. 
..END :











MAY V. ANDERSON 345 U.S. 528 


NO. 244.  ARGUED JANUARY 6, 1953 - DECIDED MAY 18, 1953 - 157 OHIO ST.
436, 105 N.E.2D 648, REVERSED. 


IN A HABEAS CORPUS PROCEEDING ATTACKING THE RIGHT OF A MOTHER TO
RETAIN POSSESSION OF HER MINOR CHILDREN, AN OHIO COURT IS NOT BOUND BY
THE FULL FAITH AND CREDIT CLAUSE OF THE FEDERAL CONSTITUTION TO GIVE
EFFECT TO A WISCONSIN DECREE AWARDING CUSTODY OF THE CHILDREN TO THEIR
FATHER, WHEN THAT DECREE WAS OBTAINED BY THE FATHER IN AN EX PARTE
DIVORCE ACTION IN A WISCONSIN COURT THAT HAD NO PERSONAL JURISDICTION
OVER THE MOTHER.  PP. 528-535. 

MAY V. ANDERSON. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

IN A HABEAS CORPUS PROCEEDING TO TEST THE RIGHT AS BETWEEN A FATHER
AND MOTHER TO IMMEDIATE POSSESSION OF THEIR MINOR CHILDREN, THE OHIO
TRIAL COURT ORDERED THE CHILDREN DISCHARGED FROM FURTHER RESTRAINT BY
THE MOTHER.  THE STATE COURT OF APPEALS AFFIRMED.  91 OHIO APP. 557,
107 N.E.2D 358.  THE STATE SUPREME COURT DISMISSED AN APPEAL.  157 OHIO
ST. 436, 105 N.E.2D 648.  ON APPEAL TO THIS COURT, THE APPEAL IS
TREATED AS A PETITION FOR A WRIT OF CERTIORARI, CERTIORARI IS GRANTED,
AND THE JUDGMENT IS REVERSED AND REMANDED, P. 535. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

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. 

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. 

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 STATES (FN1) 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, 25 OHIO BAR 199. 

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) SEC. 2103, WHILE CONTINUING, FOR
CONVENIENCE, TO REFER TO THE PARTIES AS APPELLANT AND APPELLEE.  (FN2) 

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. 

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.  (FN3)  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, AND KREIGER V. KREIGER, 334 U.S. 555,
RECOGNIZING THE DIVISIBILITY OF DECREES OF DIVORCE FROM THOSE FOR
PAYMENT OF ALIMONY. 

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. 

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. 

"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. 

"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.  (FN4) 

THE NARROW ISSUE THUS PRESENTED WAS NOTED BUT NOT DECIDED IN HALVEY
V. HALVEY, 330 U.S. 610, 615-616.  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., AT 615.  WE WERE NOT
COMPELLED TO ANSWER IT THERE AND A DECISION ON IT WAS EXPRESSLY
RESERVED. 

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. 

"IT 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 IT (FN5) DO NOT ENTITLE A JUDGMENT IN PERSONAM TO EXTRA-TERRITORIAL
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; THOMPSON V. WHITMAN, 18
WALL.  457; D'ARCY V. KETCHUM, 11 HOW.  165. 

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.  (FN6)  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. 

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. 
(FN7)  WE FIND IT UNNECESSARY TO DETERMINE THE CHILDREN'S LEGAL
DOMICILE BECAUSE, EVEN IT 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.  (FN8) 

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.  REVERSED AND REMANDED. 

FN1  "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, SEC. 1. 

FN2  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 SEC. 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. 

FN3  "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. 

FN4  THIS LIMITATION CONTRASTS WITH THE PROCEDURE IN STATES WHERE A
COURT, UPON SECURING THE PRESENCE BEFORE IT 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., HALVEY V. HALVEY, 330 U.S.
610 (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. 

FN5  SEE 28 U.S.C. (SUPP. V) SEC. 1738, AS DEVELOPED FROM THE ACT OF
MAY 26, 1970, 1 STAT.  122. 

FN6  "  ...  THE FACT THAT THE REQUIREMENTS OF FULL FAITH AND CREDIT,
SO FAR AS JUDGMENT ARE CONCERNED, ARE EXACTING, IF NOT INEXORABLE
(SHERRER V. SHERRER, SUPRA (334 U.S. 343)), 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 546,
549. 

FN7  BY STIPULATION, THE PARTIES RECOGNIZED HER DOMICILE IN OHIO. 
SEE ALSO, ESTIN V. ESTIN, SUPRA; KREIGER V. KREIGER, SUPRA; WILLIAMS V.
NORTH CAROLINA, 317 U.S. 287. 

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), SECS. 32 AND 146, ILLUSTRATIONS 1 AND 2. 

FN8  "  ...  THE WEIGHT OF AUTHORITY IS IN FAVOR OF CONFINING THE
JURISDICTION OF THE COURT IN AN ACTION FOR DIVORCE, WHERE THE DEFENDANT
IS A NON-RESIDENT 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. 

MR. JUSTICE CLARK, NOT HAVING HEARD ORAL ARGUMENT, TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

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. 

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. 

PROPERTY, PERSONAL CLAIMS, AND EVEN THE MARRIAGE STATUS (SEE, E.G.,
SHERRER V. SHERRER, 334 U.S. 343), 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 IF
UNCRITICALLY TRANSFERRED TO DETERMINATION OF A STATE'S DUTY TOWARDS
CHILDREN.  THERE ARE, OF COURSE, ADJUDICATIONS OTHER THAN THOSE
PERTAINING TO CHILDREN, AS FOR INSTANCES 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 RESPONSIBLITY
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. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE REED JOINS, DISSENTING. 

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; ESENWEIN V. COMMONWEALTH, 325
U.S. 279, 281. 

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. SEC. 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."  (FN1)  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. 

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.
NORTH CAROLINA, 317 U.S. 287, 302.  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. 

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.  (FN2)  CF.
YARBOROUGH V. YARBOROUGH, 290 U.S. 202, 210. 

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.  (FN3)
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 TO THIS ANCIENT DOCTRINE WOULD LEAVE PARTIAL
VACUUMS IN MANY BRANCHES OF THE LAW.  IT SEEMS TO BE ABANDONED HERE. 

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. 

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.  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. NORTH CAROLINA, SUPRA, AT 311;
RICE V. RICE, 336 U.S. 674, 676.  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 HERE LITIGATED THAN HAVE MANY OF THE
DIVORCE-MILL FORUMS WHOSE JUDGMENTS WE HAVE COMMANDED THEIR SISTER
STATES TO RECOGNIZE. 

IN SPITE OF THE FACT THAT JUDGES AND LAW WRITERS LONG HAVE RECOGNIZED
THE SIMILARITY BETWEEN THE JURISDICTIONAL REQUIREMENTS FOR DIVORCE AND
FOR CUSTODY, (FN4) 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.  (FN5)  ONLY WHEN THEY SEEK TO
RENDER A PARTY LIABLE TO SOME PERSONAL PERFORMANCE MUST THEY ACQUIRE
PERSONAL JURISDICTION.  (FN6) 

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. 

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.  HALVEY V. HALVEY, 330 U.S. 610; CF. LYNDE V. LYNDE, 181 U.S.
183.  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. 

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. 

FN1  NONE OF THE CASES INVOLVING EXCEPTIONS TO THIS RULE ARE IN POINT
HERE.  SEE, E.G., FALL V. EASTIN, 215 U.S. 1.    FN2  AMERICAN LAW
INSTITUTE, RESTATEMENT, CONFLICT OF LAWS (1934), SECS. 117, 144-147. 

FN3  CF. CURRY V. MCCANLESS, 307 U.S. 357; STATE TAX COMMISSION V.
ALDRICH, 316 U.S. 174; THE DORRANCE LITIGATION, 298 U.S. 678, 115 N.J.
EQ. 268, 170 A. 601, 309 PA. 151, 163 A. 303. 

FN4  SEE GOODRICH, CUSTODY OF CHILDREN IN DIVORCE SUITS, 7 CORN. 
L.Q. 1. 

FN5  HARRIS V. BALK, 198 U.S. 215; THOMPSON V. WHITMAN, 18 WALL. 
457. 

FN6  PENNOYER V. NEFF, 95 U.S. 714. 

MR. JUSTICE MINTON, DISSENTING. 

THE OPINION OF THE COURT AND THE DISSENT OF MR. JUSTICE JACKSON DEAL
WITH A JURISDICTIONAL QUESTION NOT RAISED ON THE RECORD. 

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. 

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. 

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, SEC. 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. 

I WOULD THEREFORE AFFIRM. 
..END :






















WATSON V. COMMISSIONER OF INTERNAL REVENUE 345 U.S. 544 


NO. 290.  ARGUED FEBRUARY 2, 1953 - DECIDED MAY 18, 1953 - 197 F.2D 56,
AFFIRMED. 


FOR SEVERAL YEARS, A TAXPAYER 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. 
HELD:  FOR FEDERAL INCOME TAX PURPOSES, UNDER SEC. 117(J) OF THE
INTERNAL REVENUE CODE, AS IN EFFECT IN 1944, SHE MUST TREAT THAT PART
OF HER PROFIT FROM THE SALE WHICH IS ATTRIBUTABLE TO THE UNMATURED CROP
AS ORDINARY INCOME - NOT AS A CAPITAL GAIN.  PP. 545-553. 

(A)  IT IS IMMATERIAL THAT, UNDER THE LAW OF THE STATE WHERE THE LAND
IS SITUATED, AN UNMATURED, UNHARVESTED CROP IS TREATED AS REAL PROPERTY
FOR MANY PURPOSES.  P. 551. 

(B)  IN THE CIRCUMSTANCES OF THIS CASE, THE PROCEEDS OF THE SALE
FAIRLY ATTRIBUTABLE TO THE CROP WERE DERIVED FROM PROPERTY "HELD BY THE
TAXPAYER PRIMARILY FOR SALE TO CUSTOMERS IN THE ORDINARY COURSE OF HIS
TRADE OR BUSINESS," WITHIN THE MEANING OF SEC. 117(J), AS IT EXISTED IN
1944.  PP. 551-552. 

WATSON ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

THE TAX COURT SUSTAINED A DEFICIENCY ASSESSED BY THE COMMISSIONER OF
INTERNAL REVENUE AGAINST PETITIONERS, BUT REDUCED THE AMOUNT.  15 T.C.
800.  THE COURT OF APPEALS AFFIRMED.  197 F.2D 56.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 895.  AFFIRMED, P. 553. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

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. 

IN 1944, MRS. M. GLADYS WATSON, ONE OF THE PETITIONERS HERE, AND HER
TWO BROTHERS, EACH OWNED AN INDIVIDUAL 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.  (FN1)  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. 

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 $197,000 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. 

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.  (FN2) 

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 TC MEMO,
PARA. 50,300, EACH OF WHICH WAS REVERSED ON APPEAL, 192 F.2D 486 (C.A.
10TH CIR.), AND 192 F.2D 1006 (C.A. 5TH CIR.).  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.  (FN3)  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. 

THE ISSUE BEFORE US TURNS UPON THE ACTS OF CONGRESS.  IN 1951,
CONGRESS, FOR THE FIRST TIME, DEALT EXPRESSLY AND SPECIFICALLY WITH
THIS SUBJECT.  (FN4)  WHILE THAT ACTION WAS PROSPECTIVE ONLY, ITS TERMS
THROW LIGHT ON THE PROBLEMS OF PRIOR YEARS.  (FN5)  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.  (FN6) 

IN THE INSTANT CASE, WE ARE DEPENDENT UPON SEC. 117(J) OF THE
INTERNAL REVENUE CODE, AS IN EFFECT IN 1944.  (FN7)  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. 

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. 

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 SEC. 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. 

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. 

THE COMMISSIONER URGES TWO GROUNDS IN SUPPORT OF HIS POSITION THAT
SEC. 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. 

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, 152 F.2D 570, 572, 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 SEC. 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."  (FN8) 

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, 70 F.2D 806; CAMP MANUFACTURING CO. V.
COMMISSIONER, 3 T.C. 467. 

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. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  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. 

FN2  SEC. 117(B) AND (C)(2), I.R.C., AS AMENDED BY SEC. 150(C) OF THE
REVENUE ACT OF 1942, C. 619, 56 STAT. 843-844, 26 U.S.C. (1940 ED.,
SUPP. V) SEC. 117(B) AND (C)(2). 

FN3  65 STAT. 500-501, 26 U.S.C. (SUPP. V) SECS. 117(J), 24(F),
113(B)(1). 

FN4  THE REVENUE ACT OF 1951 ADDED TO SEC. 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) SEC. 117(J)(3). 

AND EQUALLY IMPORTANT, IT ADDED TO SEC. 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) SEC. 24(F). 

FN5  THE PURPOSE OF CONGRESS TO MAKE THIS AMENDMENT PROSPECTIVE,
RATHER THAN RETROACTIVE, IS EMPHASIZED IN THE VERY NEXT SECTION OF THE
1951 ACT.  THAT SECTION MADE RETROACTIVE TO 1942 ANOTHER AMENDMENT TO
SEC. 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.    FN6  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. 

FN7  INTERNAL REVENUE CODE, AS AMENDED, 56 STAT. 846: 

"SEC. 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(1), 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  ...  ."  SEE 26 U.S.C. SEC. 117(J). 

FN8  "THE PRODUCTION OF FRUIT FROM ORCHARDS OR GROVES CONSTITUTES A
BUSINESS, AND SECTION 117(J) OF THE CODE, SUPRA, IS APPLICABLE TO THE
SALES 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 CUM. BULL.  31. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING FROM THE COURT'S OPINION AND JUDGMENT. 

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? 

THE PERTINENT PROVISIONS OF THE STATUTE ARE SET FORTH IN THE MARGIN. 
(FN1)  MRS. WATSON DOES NOT CONTEND THAT THE GROWING ORANGES WERE
CAPITAL ASSETS AS DEFINED IN SEC. 117(A), BUT INSTEAD SHE CLAIMS THAT
THEY WERE "PROPERTY USED IN THE TRADE OR BUSINESS" AS DEFINED IN SEC.
117(J) AND THAT SHE IS ENTITLED TO CAPITAL GAINS TREATMENT UNDER THAT
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. 

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.  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. 

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." 

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 SEC. 117(J). 

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: 

"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 A,CURATELY DETERMINED  ...  ."  (FN2) 

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. 

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, 192 F.2D 486 (C.A. 10TH CIR.),
THE COURT WAS DEALING WITH THE SALE OF LAND WITH A GROWING CROP OF
WHEAT UPON IT.  IN OWEN V. COMMISSIONER, 192 F.2D 1006 (C.A. 5TH CIR.),
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, 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. 

IN AMENDING THE REVENUE ACT OF 1951, CONGRESS TOOK COGNIZANCE OF THE
CONSTRUCTION PLACED ON SEC. 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) SEC. 117(J)(3). 

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: 

"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  ...  ."  (FN3) 

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. 

I WOULD REVERSE THE JUDGMENT. 

FN1  "SEC.  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(1)  ...  OR REAL PROPERTY USED IN
THE TRADE OR BUSINESS OF THE TAXPAYER  ...  ."  53 STAT. 50, AS
AMENDED, 26 U.S.C.  SEC. 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(1), 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  ...  ."  56 STAT. 846, 26 U.S.C.  SEC. 117(J). 

FN2  I-1 CUM. BULL.  72.    FN3  S. REP. NO. 781, 82D CONG., 1ST
SESS. 47. 
..END :







TERRY V. ADAMS 345 U.S. 461 


NO. 52.  ARGUED JANUARY 16, 1953 - DECIDED MAY 4, 1953 - 193 F.2D 600,
REVERSED. 


PETITIONERS, QUALIFIED NEGRO VOTERS IN A TEXAS COUNTY, SUED TO
DETERMINE THE LEGALITY OF THEIR BEING EXCLUDED, SOLELY BECAUSE OF THEIR
RACE AND COLOR, FROM VOTING IN ELECTIONS HELD BY AN ASSOCIATION
CONSISTING OF ALL QUALIFIED WHITE VOTERS IN THE COUNTY.  THE
ASSOCIATION HELD AN ELECTION IN EACH ELECTION YEAR TO SELECT CANDIDATES
FOR COUNTY OFFICES TO RUN FOR NOMINATION IN THE OFFICIAL DEMOCRATIC
PRIMARY.  THE ASSOCIATION'S ELECTIONS WERE NOT GOVERNED BY STATE LAWS
AND DID NOT UTILIZE STATE ELECTIVE MACHINERY OR FUNDS.  CANDIDATES
ELECTED BY THE ASSOCIATION WERE NOT CERTIFIED BY THE ASSOCIATION AS ITS
CANDIDATES IN THE DEMOCRATIC PRIMARY, BUT FILED THEIR OWN NAMES AS
CANDIDATES.  HOWEVER, FOR MORE THAN 60 YEARS, THE ASSOCIATION'S COUNTY
WIDE CANDIDATES HAD INVARIABLY BEEN NOMINATED IN THE DEMOCRATIC
PRIMARIES AND ELECTED TO OFFICE.  THE DISTRICT COURT FOUND THAT THE
ASSOCIATION WAS A POLITICAL ORGANIZATION OR PARTY AND THAT ITS CHIEF
OBJECT HAD ALWAYS BEEN TO DENY NEGROES ANY VOICE OR PART IN THE
ELECTION OF COUNTY OFFICIALS.  HELD: 

1.  THE COMBINED ELECTION MACHINERY OF THE ASSOCIATION AND THE
DEMOCRATIC PARTY DEPRIVES PETITIONERS OF THEIR RIGHT TO VOTE ON ACCOUNT
OF THEIR RACE AND COLOR, CONTRARY TO THE FIFTEENTH AMENDMENT.  P. 470. 

2.  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. SEC. 2202.  P. 470. 

3.  IN EXERCISING THIS JURISDICTION, THE DISTRICT COURT IS LEFT FREE
TO HOLD HEARINGS TO CONSIDER AND DETERMINE WHAT PROVISIONS ARE
ESSENTIAL TO AFFORD NEGRO CITIZENS OF THE COUNTY FULL PROTECTION FROM
SUCH FUTURE DISCRIMINATORY ELECTION PRACTICES WHICH DEPRIVE CITIZENS OF
VOTING RIGHTS BECAUSE OF THEIR COLOR.  P. 470. 

FOR OPINION OF MR. JUSTICE BLACK, JOINED BY MR. JUSTICE DOUGLAS AND
MR. JUSTICE BURTON, SEE POST, P. 462. 

FOR OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P. 470. 

FOR CONCURRING OPINION OF MR. JUSTICE CLARK, JOINED BY THE CHIEF
JUSTICE, MR. JUSTICE REED AND MR. JUSTICE JACKSON, SEE POST, P. 477. 

FOR DISSENTING OPINION OF MR. JUSTICE MINTON, SEE POST, P. 484. 

TERRY ET AL. V. ADAMS ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE DISTRICT COURT ISSUED A DECLARATORY JUDGMENT HOLDING INVALID
RACIAL DISCRIMINATIONS IN A PRE-PRIMARY ELECTION IN A TEXAS COUNTY,
DECLINED TO ISSUE AN INJUNCTION, BUT RETAINED JURISDICTION TO GRANT
FURTHER APPROPRIATE RELIEF.  90 F. SUPP. 595.  THE COURT OF APPEALS
REVERSED.  193 F.2D 600.  THIS COURT GRANTED CERTIORARI.  344 U.S.
883.  JUDGMENT OF THE COURT OF APPEALS REVERSED AND CAUSE REMANDED TO
THE DISTRICT COURT FOR FUTHER PROCEEDINGS, P. 470. 

MR. JUSTICE BLACK ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH MR. JUSTICE DOUGLAS AND MR. JUSTICE BURTON JOIN. 

IN SMITH V. ALLWRIGHT, 321 U.S. 649, 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 JAYBIRDS 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. 

THERE WAS EVIDENCE THAT: 

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. 

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: 

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. 

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. 

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. 

Q. AND THAT IS YOUR POLICY? 

A. YES. 

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. 

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. 

Q. AND IF YOU HELD YOURS AT THAT TIME THEY WOULD HAVE TO VOTE TOO,
WOULDN'T THEY? 

A. WHY SURE. 

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. 

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. 

Q. AND THAT IS YOUR PURPOSE? 

A. YES. 

Q. AND YOUR INTENTION? 

A. YES. 

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. 

Q. THAT IS THE WHOLE POLICY OF YOUR ASSOCIATION? 

A. YES. 

Q. AND THAT IS ITS PURPOSE? 

A. YES. 

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. 

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, 165 F.2D 387, AND BASKIN V. BROWN, 174
F.2D 391.  (FN1)  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, AT 664, 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." 

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: 

"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: 

"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. 

OTHER CASES HAVE REEMPHASIZED THE FIFTEENTH AMENDMENT'S SPECIFIC
GRANT OF THIS NEW CONSTITUTIONAL RIGHT.  (FN2)  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 SEC. 2, READING: 

"THE CONGRESS SHALL HAVE POWER TO ENFORCE THIS ARTICLE BY APPROPRIATE
LEGISLATION." 

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.  SEE ALSO UNITED
STATES V. REESE, SUPRA, AT 218.  AND SEE MR. JUSTICE BRADLEY'S OPINION
ON CIRCUIT IN UNITED STATES V. CRUIKSHANK, 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: 

"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. SEC. 31. 

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.   (FN3)  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. 

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. 

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. 

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. 

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. SEC. 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.  REVERSED AND REMANDED. 

FN1  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, AT 661, 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."  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.    FN2  "IN UNITED
STATES V. REESE, ET AL., SUPRA, P. 214, WE HOLD THAT THE FIFTEENTH
AMENDMENT HAS VESTED 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.  TO
THE SAME EFFECT, SEE EX PARTE YARBROUGH, 110 U.S. 651, 664-665; LOGAN
V. UNITED STATES, 144 U.S. 263, 286.  THE AMENDMENT HAS BEEN HELD "SELF
EXECUTING."  SEE GUINN V. UNITED STATES, 238 U.S. 347, 362-363. 

FN3  "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 A 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. 

MR. JUSTICE FRANKFURTER. 

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" PRACTICES, THE ACTION OF THE
ASSOCIATION WAS NOT "ACTION UNDER COLOR OF STATE LAW" AND THEREFORE NOT
IN VIOLATION OF FEDERAL LAW. 

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. 

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. 

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. 

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. 

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, SEC. 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. 

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. 

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. 

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, 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., AT 663. 
ALTERNATIVE ROUTES HAVE BEEN SUGGESTED FOR CONCLUDING THAT THE JAYBIRD
PRIMARY IS "SO SLIGHT A CHANGE IN FORM," ID., AT 661, 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. 

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.  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. 

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. 

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.  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 ONE INDIVIDUAL OR CLASS OVER ANOTHER NOT TO BE INFERRED FROM THE
ACTION ITSELF," SNOWDEN V. HUGHES, 321 U.S. 1, 8; 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. 

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  ...  .  THEY
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.    THE STATE
HERE DEVISED A PROCESS FOR PRIMARY ELECTIONS.  THE RIGHT OF ALL
CITIZENS TO SHARE IN IT, AND NOT TO BE EXCLUDED 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. 

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. SEC. 2004, 8 U.S.C. SEC. 31, IN THIS
CASE ASSERTS ITSELF. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE REED, AND
MR. JUSTICE JACKSON JOIN, CONCURRING. 

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.  (FN1)  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, (FN2)
PETITIONERS SOUGHT DECLARATORY AND INJUNCTIVE RELIEF.  (FN3)
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.  (FN4)  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.  (FN5)  THE
COURT OF APPEALS REVERSED; IN ITS VIEW THE DISCRIMINATORY EXCLUSIONS
WERE NOT REACHED BY THE TERMS OF THE CONSTITUTION AND CONGRESSIONAL
ENACTMENTS.  (FN6) 

AN OLD PATTERN IN NEW GUISE IS REVEALED BY THE RECORD.  (FN7)  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
OFFICEHOLDERS, 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. 

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,  ...  THAT IT WAS NOT AGAINST
INDIVIDUAL, BUT AGAINST STATE, ACTION THAT THE FOURTEENTH AND FIFTEENTH
AMENDMENTS AND 8 U.S.C.A. SECS. 43 AND 47 WERE, AND ARE, DIRECTED." 
(FN8)  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 662.  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.  (FN9) 

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, 321 U.S.
649 (1944), 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., AT 664.  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. 

WE AGREE WITH CHIEF DISTRICT JUDGE KENNERLY THAT THE JAYBIRD
DEMOCRATIC ASSOCIATION IS A POLITICAL PARTY (FN10) WHOSE ACTIVITIES
FALL WITHIN THE FIFTEENTH AMENDMENT'S SELF-EXECUTING BAN.  SEE GUINN V.
UNITED STATES, 238 U.S. 347, 363 (1915); MYERS V. ANDERSON, 238 U.S.
368, 379-380 (1915).  (FN11)  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. 

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.  (FN12)  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, (FN13) RAN UNOPPOSED AND INVARIABLY WON IN THE DEMOCRATIC
JULY PRIMARY AND THE SUBSEQUENT GENERAL ELECTIONS FOR COUNTY-WIDE
OFFICE. 

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
CAST 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. 

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 TO THE LOCAL
DEMOCRATIC PARTY, THE JAYBIRD DEMOCRATIC ASSOCIATION IS THE DECISIVE
POWER IN THE COUNTRY'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. KRAEMER, 334 U.S. 1, 20 (1948).  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
INTO PLAY.  SMITH V. ALLWRIGHT, SUPRA, AT 664; CF. UNITED STATES V.
CLASSIC, 313 U.S. 299, 324 (1941); LANE V. WILSON, 307 U.S. 268, 275
(1939). 

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. 

FN1  SEE FED. RULES CIV. PROC. 23. 

FN2  PETITIONERS MAINLY RESTED THEIR CLAIMS ON THE FOURTEENTH AND
FIFTEENTH AMENDMENTS, AND 8 U.S.C. SEC. 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. SEC. 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." 

FN3  28 U.S.C. (SUPP. V) SECS. 1331, 2201.  PETITIONERS ABANDONED A
CLAIM TO MONEY DAMAGES, APPARENTLY GROUNDED ON 8 U.S.C. SECS. 43, 47. 

FN4  90 F. SUPP. 595 (D.C.S.D. TEX. 1950).  THE DISTRICT JUDGE
SUPPORTED HIS CONCLUSIONS BY REFERENCE TO ART. 3163, VERNON'S TEXAS
CIVIL STATUTES (1925): 

"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).    FN5  "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) SEC.
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. 

FN6  193 F.2D 600 (C.A. 5TH CIR. 1952). 

FN7  CF. NIXON V. HERNDON, 273 U.S. 536 (1927); NIXON V. CONDON, 286
U.S. 73 (1932); SMITH V. ALLWRIGHT, 321 U.S. 649 (1944). 

FN8  193 F.2D, AT 602.  AND SEE ID., AT 605. 

FN9  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. SEC. 31 NEED NOT BE
CONSIDERED NOW.  SEE UNITED STATES V. REESE, 92 U.S. 214, 218 (1876);
UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 555-556 (1876).  CF. JAMES V.
BOWMAN, 190 U.S. 127 (1903), WITH EX PARTE YARBROUGH, 110 U.S. 651
(1884), AND MYERS V. ANDERSON, 238 U.S. 368, 379 (1915). 

FN10  SEE SMITH V. ALLWRIGHT, 321 U.S. 649, 662 (1944); NIXON V.
CONDON, 286 U.S. 73, 88-89 (1932).  SEE NOTE 4, SUPRA. 

FN11  SEE ALSO NEAL V. DELAWARE, 103 U.S. 370, 389-390 (1881); EX
PARTE YARBROUGH, 110 U.S. 651, 665 (1884). 

FN12  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. 

FN13  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. 

MR. JUSTICE MINTON, DISSENTING. 

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, STATED THE LAW AS FOLLOWS: 

"SINCE THE DECISION OF THIS COURT IN THE CIVIL RIGHTS CASES, 109 U.S.
3 (1883), 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."* 

*THE FIFTEENTH AMENDMENT AS HERE INVOLVED IS ALSO DIRECTED AT STATE
ACTION ONLY. 

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 PRAISE-WORTHY POSITION, BUT IT SEEMS TO ME IT IS NOT IN
ACCORD WITH THE CONSTITUTION.  STATE ACTION MUST BE SHOWN. 

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. 

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: 

"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.  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. 

"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. 

"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." 

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: 

"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. 

     *         *         *         *         * 

"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 STATEWIDE ORGANIZATION. 

     *         *         *         *         * 

"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. 

     *         *         *         *         * 

"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. 

"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." 

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. 

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. 

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. 

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. 

RICE V. ELMORE, 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 BALLOT 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." 

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. 

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 SUCESSFUL 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. 

SMITH V. ALLWRIGHT, 321 U.S. 649, 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: 

"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  ...  . 

     *         *         *        *         * 

"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. 

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. 

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. 

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. 

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. 

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. 

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. 
..END :























ESSO STANDARD OIL CO. V. EVANS 345 U.S. 495 


NO. 330.  ARGUED MARCH 10, 1953 - DECIDED MAY 4, 1953 - 194 TENN. 377,
250 S.W.2D 659, AFFIRMED. 


APPELLANT, A PRIVATE CORPORATION, ENTERED INTO A CONTRACT WITH THE
FEDERAL GOVERNMENT, UNDER WHICH, FOR A FEE, APPELLANT STORED GOVERNMENT
OWNED GASOLINE IN TANKS IN TENNESSEE OWNED BY APPELLANT OR LEASED BY
APPELLANT FROM ANOTHER PRIVATE CORPORATION.  THE GOVERNMENT AGREED TO
ASSUME LIABILITY FOR ALL STATE TAXES.  TENNESSEE LEVIED ON APPELLANT A
"SPECIAL PRIVILEGE TAX" OF SIX CENTS PER GALLON "FOR ENGAGING IN AND
CARRYING ON SUCH BUSINESS" IN THE STATE.  HELD:  SOVEREIGN IMMUNITY
DOES NOT PROHIBIT THIS TAX.  PP. 496-501. 

(A)  UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, DISTINGUISHED. 
PP. 498-499. 

(B)  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 OR
BECAUSE THE TAX WOULD BURDEN THE GOVERNMENT FINANCIALLY.  P. 500. 

(C)  TENNESSEE HAS NOT DISCRIMINATED AGAINST THE FEDERAL GOVERNMENT
BY DENYING IMMUNITY IN THIS CASE AFTER RECOGNIZING THE IMMUNITY OF A
PUBLIC BODY FROM THE SAME TAX IN TENNESSEE OIL CO. V. MCCANLESS, 178
TENN. 683, 157 S.W.2D 267, WHERE THE FACTS WERE DIFFERENT.  PP. 500
501. 

ESSO STANDARD OIL CO. V. EVANS, COMMISSIONER OF FINANCE AND TAXATION, ET
AL. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE.* 

*TOGETHER WITH NO. 378, UNITED STATES V. EVANS, COMMISSIONER OF
FINANCE AND TAXATION, ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

THE SUPREME COURT OF TENNESSEE SUSTAINED THE VALIDITY OF A TAX LEVIED
ON APPELLANT UNDER 2 WILLIAMS TENN. CODE SECS. 1126-1147, FOR THE
PRIVILEGE OF STORING GOVERNMENT-OWNED GASOLINE IN THE STATE FOR THE
GOVERNMENT.  194 TENN. 377, 250 S.W.2D 659.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 501. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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 IS 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. 

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. 

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 AIRFIELDS ON ORDER OF THE AIR
FORCE.  THE OPERATIONS CONTINUED FROM 1943 THROUGH 1946 UNDER SEVERAL
CONTRACTS OF SIMILAR IMPORT. 

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 SECS. 1126-1147.  THIS STATUTE, IN
MATERIAL PART, PROVIDED: 

"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; ...  ."  SEC. 1127. 

AND SEC. 1126 DEFINES DISTRIBUTION AS: 

"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." 

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 OF GASOLINE OWNED BY THE
UNITED STATES MAKES IT REPUGNANT TO THE CONSTITUTION AND VOID.  BOTH
THE CHANCERY COURT AND THE COURT OF APPEALS REJECTED THE CLAIMED
IMMUNITY AND HELD THE STATUTE VALID AS APPLIED.  194 TENN. 377, 250
S.W.2D 659.  WE NOTED OUR PROBABLE JURISDICTION ON APPEAL.  28 U.S.C.
SEC. 1257(2). 

THE APPELLANTS TAKE A FIRM STAND ON UNITED STATES V. ALLEGHENY
COUNTY, 322 U.S. 174, 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 THE PROPERTY OF THE UNITED STATES," IT IS CLAIMED,
IS PRECISELY THE SAME AS THAT IN ALLEGHENY COUNTY. 

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., AT 179-180, 186.  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., AT 185, AND THEREFORE
INVALID.  OUR HOLDING WAS NOT "DEPENDENT UPON THE ULTIMATE RESTING
PLACE OF THE ECONOMIC BURDEN OF THE TAX."  ID., AT 189. 

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, 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, (FN1) OR ONE ARISING BY IMPLICATION FROM OUR
CONSTITUTIONAL SYSTEM OF DUAL GOVERNMENT.  (FN2)  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. 

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, 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.  AFFIRMED. 

FN1  PITTMAN V. HOME OWNERS' LOAN CORPORATION, 308 U.S. 21; CARSON V.
ROANE-ANDERSON CO., 342 U.S. 232; DAMERON V. BRODHEAD, 345 U.S. 322. 

FN2  MAYO V. UNITED STATES, 319 U.S. 441, 447; UNITED STATES V.
ALLEGHENY COUNTY, SUPRA. 

THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE JACKSON
DISSENT. 

MR. JUSTICE FRANKFURTER, NOT HAVING HEARD THE ARGUMENT, TOOK NO PART
IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :









UNITED STATES V. INTERNATIONAL BUILDING CO. 345 U.S. 502 


NO. 508.  ARGUED APRIL 8, 1953 - DECIDED MAY 4, 1953 - 199 F.2D 12,
REVERSED. 


IN 1942 THE COMMISSIONER OF INTERNAL REVENUE ASSESSED DEFICIENCIES
AGAINST RESPONDENT FOR THE TAXABLE YEARS 1933, 1938 AND 1939,
DETERMINING THAT THE PROPER BASIS FOR DEPRECIATION OF RESPONDENT'S
LEASEHOLD WAS $385,000, NOT $860,000 AS CLAIMED BY RESPONDENT. 
RESPONDENT PETITIONED THE TAX COURT FOR REVIEW.  THEREAFTER, PURSUANT
TO A STIPULATION FILED BY RESPONDENT AND THE COMMISSIONER, AND WITHOUT
A HEARING, THE TAX COURT ENTERED FORMAL DECISIONS THAT THERE WERE NO
DEFICIENCIES FOR THE TAXABLE YEARS IN QUESTION.  IN 1948 THE
COMMISSIONER ASSESSED DEFICIENCIES AGAINST RESPONDENT FOR THE YEARS
1943, 1944 AND 1945, AGAIN CHALLENGING RESPONDENT'S CLAIMED BASIS FOR
DEPRECIATION.  HELD: UPON THIS RECORD, THE DECISIONS OF THE TAX COURT
FOR THE YEARS 1933, 1938 AND 1939 WERE NOT RES JUDICATA OF THE FACT
THAT THE BASIS FOR DEPRECIATION WAS $860,000.  PP. 503-506. 

(A)  IN A SUBSEQUENT ACTION BETWEEN THE SAME PARTIES ON A DIFFERENT
CLAIM, A JUDGMENT IS CONCLUSIVE ONLY AS TO THE POINT OR QUESTION
ACTUALLY LITIGATED AND DETERMINED IN THE ORIGINAL ACTION, NOT AS TO
WHAT MIGHT HAVE BEEN LITIGATED AND DETERMINED.  PP. 504-505. 

(B)  THE DECISIONS ENTERED BY THE TAX COURT FOR THE YEARS 1933, 1938
AND 1939 WERE ONLY PRO FORMA ACCEPTANCE BY THE TAX COURT OF AN
AGREEMENT BETWEEN THE PARTIES TO SETTLE THEIR CONTROVERSY FOR REASONS
UNDISCLOSED.  P. 505. 

UNITED STATES V. INTERNATIONAL BUILDING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

IN A SUIT BY RESPONDENT TO RECOVER ALLEGED OVERPAYMENT OF FEDERAL
INCOME TAXES, THE DISTRICT COURT HELD AGAINST RESPONDENT.  97 F. SUPP.
595.  THE COURT OF APPEALS REVERSED.  199 F.2D 12.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 927.  REVERSED, P. 506. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

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 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.*  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.  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.  344 U.S. 927. 

*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" 

THE GOVERNING PRINCIPLE IS STATED IN CROMWELL V. COUNTY OF SAC, 94
U.S. 351, 352-353.  A JUDGMENT IS AN ABSOLUTE BAR TO A SUBSEQUENT
ACTION ON THE SAME CLAIM. 

"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." 

AND SEE TAIT V. WESTERN MD. R. CO., 289 U.S. 620, 623; MERCOID CORP.
V. MID-CONTINENT CO., 320 U.S. 661, 671; COMMISSIONER V. SUNNEN, 333
U.S. 591, 597-598.  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, AT 624; COMMISSIONER V. SUNNEN, SUPRA, AT
598. 

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) 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, AT 598.  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.  REVERSED. 
..END :


















CALLANAN ROAD IMPROVEMENT CO. V. UNITED STATES 345 U.S. 507 


NO. 488.  ARGUED APRIL 8, 1953 - DECIDED MAY 4, 1953 - 107 F. SUPP. 184,
AFFIRMED. 


A CERTIFICATE OF CONVENIENCE AND NECESSITY TO OPERATE AS A COMMON
CARRIER BY WATER, ISSUED BY THE INTERSTATE COMMERCE COMMISSION UNDER
SEC. 309 OF PART III OF THE INTERSTATE COMMERCE ACT, WAS SUBSEQUENTLY
AMENDED BY AN ORDER OF THE COMMISSION RESTRICTING THE CARRIER'S
OPERATIONS TO FREIGHTAGE AS DISTINGUISHED FROM TOWAGE, AND THE AMENDED
CERTIFICATE WAS ACCEPTED BY THE CARRIER.  APPELLANT SOUGHT AND OBTAINED
COMMISSION APPROVAL OF A TRANSFER OF THE AMENDED CERTIFICATE TO
APPELLANT.  THEREAFTER APPELLANT CLAIMED THE RIGHT UNDER THE
CERTIFICATE TO ENGAGE IN TOWAGE OPERATIONS.  THE COMMISSION DENIED THE
RIGHT, AND APPELLANT SUED TO SET ASIDE ITS ORDER.  HELD: 

1.  APPELLANT HAD NO STANDING TO RAISE, IN THIS COLLATERAL
PROCEEDING, THE QUESTION OF THE POWER OF THE COMMISSION TO MODIFY THE
ORIGINAL CERTIFICATE.  PP. 508-512.   2.  HAVING INVOKED THE POWER OF
THE COMMISSION TO APPROVE THE TRANSFER OF THE AMENDED CERTIFICATE,
APPELLANT WAS ESTOPPED TO DENY THE COMMISSION'S POWER TO ISSUE THE
CERTIFICATE IN THE FORM IN WHICH IT WAS WHEN APPELLANT SOUGHT ITS
TRANSFER.  P. 513. 

CALLANAN ROAD IMPROVEMENT CO. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF NEW YORK. 

IN A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION, 285 I.C.C. 75, A THREE-JUDGE DISTRICT COURT HELD AGAINST
APPELLANT.  107 F. SUPP. 184.  ON DIRECT APPEAL TO THIS COURT,
AFFIRMED, P. 513. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

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 SEC. 309 OF
PART III, WATER CARRIERS, OF THE INTERSTATE COMMERCE ACT, 54 STAT. 941,
49 U.S.C. (1946 ED.)  SEC.  909. 

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 "HE 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 SEC. 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: 

"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 IF 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
REQUIREMENTS OF PART III OF THE ACT AND THE ORDERS, RULES, AND
REGULATIONS OF THE COMMISSION THEREUNDER." 

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. 

THUS IT WILL BE SEEN THAT THE COMMISSION FOUND THE OPERATIONS OF
HUTTON TO BE THOSE OF ACOMMON 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. 

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: 

"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  ...  ." 

THIS AMENDED CERTIFICATE, WHICH LIMITED HUTTON TO THE IDENTICAL
OPERATIONS HE HAD LONG CARRIED ON AND UPON WHICH HIS SEC. 309 RIGHTS
WERE AUTHORIZED, WAS ACCEPTED BY HIM WITHOUT QUESTION, AND HE CONTINUED
TO OPERATE UNDER IT UNTIL HIS DEATH SEVERAL MONTHS LATER. 

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 SEC.
312 OF THE INTERSTATE COMMERCE ACT, 54 STAT. 944, 49 U.S.C. (1946 ED.) 
SEC.  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 ADMINISTRATRIX.  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: 

"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." 

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. 

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. 

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. 

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 COMMISSION'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. 

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.  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'N V. CENTRAL-ILLINOIS SEC. CORP., 338 U.S.
96, 143; STANLEY V. SUPERVISORS, 121 U.S. 535, 550; RECONSTRUCTION
FINANCE CORP. V. LIGHTSEY, 185 F.2D 167; CITY OF TULSA V. MIDLAND
VALLEY R. CO., 168 F.2D 252, 254; BROWN CO. V. ATLANTIC PIPE LINE, 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. 

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'N, 278 U.S.
300, 307-308; ST. LOUIS MALLEABLE CASTING CO. V. PRENDERGAST
CONSTRUCTION CO., 260 U.S. 469.  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. 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :















POPE V. ATLANTIC COAST LINE RAILROAD COMPANY 345 U.S. 379 


NO. 322.  ARGUED JANUARY 16, 1953 - DECIDED APRIL 27, 1953 - 209 GA.
187, 71 S.E.2D 243, REVERSED. 


1.  A GEORGIA TRIAL COURT SUSTAINED A GENERAL DEMURRER TO RESPONDENT'S
SUIT TO ENJOIN PETITIONER FROM PROSECUTING A SUIT AGAINST RESPONDENT IN
AN ALABAMA STATE COURT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  THE
STATE SUPREME COURT REVERSED, HOLDING THAT GEORGIA LAW GAVE GEORGIA
COURTS POWER TO ENJOIN GEORGIA RESIDENTS FROM BRINGING VEXATIOUS SUITS
IN FOREIGN JURISDICTIONS.  UNDER GEORGIA PROCEDURE, PETITIONER COULD
HAVE RETURNED TO THE GEORGIA TRIAL COURT AND INTERPOSED SOME OTHER
DEFENSE TO RESPONDENT'S SUIT FOR INJUNCTION; BUT PETITIONER CONCEDED
THAT HIS CASE RESTED SOLELY UPON HIS FEDERAL CLAIM AND THAT HE HAD NO
OTHER DEFENSE TO INTERPOSE.  HELD:  UNDER THESE PARTICULAR
CIRCUMSTANCES, THE DECISION OF THE GEORGIA SUPREME COURT WAS "FINAL,"
WITHIN THE MEANING OF 28 U.S.C. SEC. 1257, AND THIS COURT HAS
JURISDICTION OVER THIS CASE.  PP. 380-383. 

2.  UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, PETITIONER SUED
RESPONDENT, AN INTERSTATE RAILROAD, IN AN ALABAMA STATE COURT FOR
INJURIES SUSTAINED DURING THE COURSE OF HIS EMPLOYMENT - ALTHOUGH THE
INJURY OCCURRED IN GEORGIA, WHICH WAS ALSO THE PLACE OF PETITIONER'S
EMPLOYMENT AND RESIDENCE.  RESPONDENT SUED IN A GEORGIA STATE COURT TO
ENJOIN PETITIONER FROM PROSECUTING HIS SUIT IN ALABAMA, ALLEGING THAT
PETITIONER DELIBERATELY SOUGHT TO "HARASS" RESPONDENT BY SUBJECTING IT
TO THE BURDEN AND EXPENSE OF DEFENDING THE CLAIM IN A DISTANT FORUM. 
HELD:  UNDER SEC. 6 OF THE ACT, PETITIONER HAD A RIGHT TO SUE IN
ALABAMA, WHERE RESPONDENT WAS DOING BUSINESS, AND THE GEORGIA COURT WAS
WITHOUT POWER TO ENJOIN PROSECUTION OF THE SUIT IN AN ALABAMA STATE
COURT.  PP. 383-387. 

(A)  SECTION 6 DISPLACES THE TRADITIONAL POWER OF A STATE COURT TO
ENJOIN ITS CITIZENS, ON THE GROUND OF OPPRESSIVENESS, FROM SUING UNDER
THE ACT IN THE COURTS OF ANOTHER STATE.  MILES V. ILLINOIS CENTRAL R.
CO., 315 U.S. 698.  P. 383. 

(B)  THE PROVISIONS OF 28 U.S.C. SEC. 1404(A) THAT, "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" IS APPLICABLE ONLY TO CASES
BROUGHT IN FEDERAL COURTS AND DOES NOT GRANT TO A STATE COURT ANY
AUTHORITY TO ENJOIN A CITIZEN OF ITS STATE FROM PROSECUTING IN A COURT
OF ANOTHER STATE A SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  EX
PARTE COLLETT, 337 U.S. 55, DISTINGUISHED.  PP. 383-384. 

(C)  THE REVISER'S NOTE TO SEC. 1404(A), CITING BALTIMORE & OHIO R.
CO. V. KEPNER, 314 U.S. 44, AS "AN EXAMPLE OF THE NEED" FOR ITS
ENACTMENT, DOES NOT REQUIRE A DIFFERENT RESULT IN THIS CASE.  PP. 384
387. 

POPE ET AL V. ATLANTIC COAST LINE RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

A GEORGIA TRIAL COURT SUSTAINED A GENERAL DEMURRER TO A SUIT BY
RESPONDENT TO ENJOIN PETITIONER FROM PROSECUTING IN AN ALABAMA COURT A
SUIT AGAINST RESPONDENT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 
THE SUPREME COURT OF GEORGIA REVERSED.  209 GA. 187, 71 S.E.2D 243. 
THIS COURT GRANTED CERTIORARI.  344 U.S. 863.  REVERSED, P. 387. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

INVOKING THE FEDERAL EMPLOYERS' LIABILITY ACT, (FN1) 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 SEC.
6 OF THE ACT.  (FN2) 

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. 

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 SEC.
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, 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., 315
U.S. 698 (1942), AND BALTIMORE & O.R. CO. V. KEPNER, 314 U.S. 44
(1941). 

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. SEC. 1257.  THE CASE AT BAR CLEARLY MET THE
FIRST REQUIREMENT, BUT WE WERE IN DOUBT AS TO WHETHER IT SATISFIED THE
SECOND. 

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.  (FN3)  ORDINARILY, THEN, THE OVERRULING
OF A DEMURRER, LIKE THE ISSUANCE OF A TEMPORARY INJUNCTION, (FN4) IS
NOT A "FINAL" JUDGMENT. 

YET WE ARE NOT BOUND TO DETERMINE THE PRESENCE OR ABSENCE OF FINALITY
FROM A MERE EXAMINATION OF THE "FACE OF THE JUDGMENT."  (FN5)  WE HAVE
NOT INTERPRETED SEC. 1257 SO AS TO PRECLUDE REVIEW OF FEDERAL QUESTIONS
WHICH ARE IN FACT RIPE FOR ADJUDICATION WHEN TESTED AGAINST THE POLICY
OF SEC. 1257.  (FN6) 

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."  (FN7)
UNDER THESE PARTICULAR CIRCUMSTANCES, WE HAVE JURISDICTION OVER THE
CAUSE, RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69 (1946); 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. 

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 SEC. 6
DISPLACES THE TRADITIONAL "POWER OF A STATE COURT TO ENJOIN ITS
CITIZENS, ON THE GROUND OF OPPRESSIVENESS  ...  FROM SUING  ...  IN THE
STATE COURTS OF ANOTHER STATE ...  ."  MILES V. ILLINOIS CENTRAL R.
CO., SUPRA, 315 U.S., AT 699.  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 SEC. 1404(A) OF THE JUDICIAL CODE IN
1948.  (FN8)  SECTION 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." 

WE HAVE HERETOFORE HELD THAT SEC. 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 CONVENIENT FORUM.  EX PARTE COLLETT, 337 U.S. 55 (1949). 
RESPONDENT WOULD HAVE US EXTEND THAT DECISION, TO HOLD THAT SEC.
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. 

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 SEC.
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." 

ALTHOUGH THE STATUTORY LANGUAGE OF SEC. 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

BASING ITS ARGUMENT UPON THE TEXT OF THE REVISER'S NOTE TO SEC.
1404(A), RESPONDENT ARGUES THAT IT MUST HAVE BEEN THE INTENT OF
CONGRESS, IF NOT ITS EXPRESSED PURPOSE, THAT SEC. 1404(A) BE CONSTRUED
AS RESPONDENT WOULD CONSTRUE IT. 

THE REVISER'S NOTE TO SEC. 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 SEC. 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. 

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
SEC. 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 NOTE (FN10) 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 WROUGHT BY SEC. 6 IN THE KEPNER CASE. 

THUS, WITH THE EXCEPTION OF THE TRANSFER POWERS CONFERRED UPON THE
FEDERAL COURTS BY SEC. 1404(A), CONGRESS DELIBERATELY CHOSE TO LEAVE
THIS COURT'S DECISION IN THE KEPNER CASE INTACT.  INDEED, WE HAVE SAID
AS MUCH BEFORE: 

"SECTION 6 OF THE LIABILITY ACT DEFINES THE PROPER FORUM; SEC.
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 SEC. 6 OF THE LIABILITY ACT OR ELSEWHERE TO BRING SUIT IN A
PARTICULAR DISTRICT  ...  ."  EX PARTE COLLETT, SUPRA, 337 U.S., AT
60. 

CONGRESS MIGHT HAVE GONE FURTHER; IT MIGHT HAVE VESTED STATE COURTS
WITH THE POWER ASSERTED HERE.  IN FACT, THE SAME CONGRESS WHICH ENACTED
SEC. 1404(A) REFUSED TO ENACT A BILL WHICH WOULD HAVE AMENDED SEC. 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. 

THIS PROPOSED AMENDMENT - THE JENNINGS BILL (FN11) - 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 SEC. 6 AND "HARASS" THEIR EMPLOYERS IN DISTANT FORUMS
WITHOUT RESTRICTION.  THEY INSISTED THAT THESE ABUSES BE CURTAILED. 
(FN12)  THESE ARGUMENTS PREVAILED IN THE HOUSE, WHICH PASSED THE
JENNINGS BILL, (FN13) BUT THE PROPOSED AMENDMENT DIED IN THE SENATE
JUDICIARY COMMITTEE, AND SEC. 6 OF THE FEDERAL EMPLOYERS' LIABILITY ACT
WAS LEFT JUST AS THIS COURT HAD CONSTRUED IT.  (FN14) 

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. 

FN1  45 U.S.C. SEC. 51. 

FN2  45 U.S.C. SEC. 56. 

FN3  SEE RADIO STATION WOW V. JOHNSON, 326 U.S. 120, 123-124 (1945);
GOSPEL ARMY V. LOS ANGELES, 331 U.S. 543 (1947).  CF. HERB V. PITCAIRN,
324 U.S. 117, 125-126 (1945). 

FN4  CF. MONTGOMERY BUILDING & CONSTRUCTION TRADES COUNCIL V.
LEDBETTER CO., 344 U.S. 178 (1952). 

FN5  SEE GOSPEL ARMY V. LOS ANGELES, SUPRA, 331 U.S., AT 546. 

FN6  SEE RADIO STATION WOW V. JOHNSON, SUPRA. 

FN7  CLARK V. WILLARD, 292 U.S. 112, 118 (1934). 

FN8  28 U.S.C. SEC. 1404(A). 

FN9  EX PARTE COLLETT, SUPRA, 337 U.S., AT 65-70. 

FN10  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, 62 S. CT. 6,
314 U.S. 44, 86 L. ED. 28, WHICH WAS PROSECUTED UNDER THE FEDERAL
EMPLOYERS' 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." 

FN11  H.R. 1639, 80TH CONG., 1ST SESS. 

FN12  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.    FN13  93 CONG.
REC. 9194. 

FN14  SEE EX PARTE COLLETT, SUPRA, 337 U.S., AT 62-65. 

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. 

MR. JUSTICE REED, CONCURRING.  I AM OF THE OPINION THAT THE GEORGIA
JUDGMENT IS NOT FINAL.  COMPARE CLARK V. WILLARD, 292 U.S. 112.  AS
THIS VIEW DOES NOT PREVAIL, I JOIN IN THE REST OF THE OPINION AND THE
JUDGMENT OF THE COURT. 

MR. JUSTICE FRANKFURTER, DISSENTING.    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.  "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 196,
71 S.E.2D, AT 249. 

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, AND MILES V. ILLINOIS CENTRAL R. CO., 315 U.S. 698, IN
LIGHT OF THEIR BASIS AND OF THE CONGRESSIONAL RESPONSE TO THEM IN SEC.
1404(A) OF TITLE 28 OF THE U.S.C.  AS REVISED IN 1948, RESTRICT THE
EXERCISE OF SUCH GENERAL EQUITY POWERS BY GEORGIA? 

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. 

THE COURT FOUND IN THOSE TWO CASES THAT CONGRESS, BY SEC. 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 SEC. 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.  IN
EX PARTE COLLETT, 337 U.S. 55, WE HELD THAT SEC. 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 SEC.
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 61. 

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 SEC. 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 SEC. 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
SEC. 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. 

SUCH TREATMENT OF LEGISLATION SEEMS TO ME THE OPPOSITE OF OBEDIENCE
TO A STATUTORY COMMAND.  IT IS BESIDE THE POINT TO URGE THAT SEC.
1404(A) SPEAKS ONLY OF FORUM NON CONVENIENS IN THE FEDERAL COURTS AND
NOT OF STATE COURT INJUNCTIONS AGAINST OUT-OF-STATE SUITS.  IF SEC.
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? 

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. 

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.  (FN1)  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. 

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.  (FN2) 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. 

THE DOCTRINE ENUNCIATED BY KEPNER AND MILES AT LEAST MADE FOR
UNIFORMITY IN THE OPERATION OF SEC. 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.  (FN3)  NOW, UNDER SEC. 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. 
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 SEC.
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. 

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? 

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 INTEREST OF JUSTICE.  WE HAVE SANCTIONED ITS USE
IN OTHER APPROPRIATE INSTANCES, SEE COLE V. CUNNINGHAM, 133 U.S. 107,
AND SHOULD NOT DENY ITS USE TO GEORGIA IN EFFECTUATING AN END WHOSE
DESIRABILITY IS NO LONGER OPEN TO QUESTION. 

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; DAVIS V. WECHSLER, 263 U.S. 22.  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. 

FN1  NO SUGGESTION OF A POLICY INCONSISTENT WITH THAT EXPRESSED BY
SEC. 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 FEDERAL
EMPLOYERS' LIABILITY ACT BY REMOVING FROM SECTION 6 (45 U.S.C. 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 SEC. 1404(A),
THE POLICY, THAT IS, WHICH THE COURT DISREGARDS. 

FN2  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.    FN3  TO BE SURE, DOUGLAS V. NEW YORK, N.H.&H.R.
CO., 279 U.S. 377, 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. 
..END :









POULOS V. NEW HAMPSHIRE 345 U.S. 395 


NO. 341.  ARGUED FEBRUARY 3, 1953 - DECIDED APRIL 27, 1953 - 97 N.H.
352, 88 A.2D 860, AFFIRMED. 


1.  A CITY ORDINANCE FORBADE THE HOLDING OF A RELIGIOUS MEETING IN A
PUBLIC PARK WITHOUT A LICENSE.  THE STATE SUPREME COURT CONSTRUED IT AS
LEAVING TO THE LICENSING OFFICIALS NO DISCRETION AS TO THE GRANTING OF
LICENSES, NO POWER TO DISCRIMINATE, AND NO CONTROL OVER SPEECH, AND AS
CALLING MERELY FOR THE ADJUSTMENT OF THE UNRESTRAINED EXERCISE OF
RELIGIOUS WITH THE REASONABLE COMFORT AND CONVENIENCE OF THE WHOLE
CITY.  HELD:  AS THUS CONSTRUED, THE ORDINANCE DOES NOT VIOLATE THE
PRINCIPLES OF THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT.  PP. 402-408. 

(A)  APPELLANT'S ATTACK ON THE ORDINANCE AS APPLIED TO HIM, ON THE
GROUND THAT IT WAS REPUGNANT TO THE PRINCIPLES OF THE FIRST AMENDMENT,
AND A DETERMINATION OF ITS VALIDITY BY THE STATE SUPREME COURT,
REQUIRED THIS COURT TO TAKE JURISDICTION ON APPEAL UNDER 28 U.S.C. SEC.
1257(2).  P. 402. 

(B)  THE PRINCIPLES OF THE 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.  P. 405. 

(C)  KUNZ V. NEW YORK, 340 U.S. 290, AND SAIA V. NEW YORK, 334 U.S.
558, DISTINGUISHED.  PP. 406-408. 

2.  HAVING BEEN ARBITRARILY AND UNLAWFULLY DENIED A LICENSE,
APPELLANT PROCEEDED TO HOLD A RELIGIOUS MEETING IN A PUBLIC PARK
WITHOUT A LICENSE AND WAS CONVICTED AND FINED FOR A VIOLATION OF THE
ORDINANCE.  THE STATE SUPREME COURT HELD THAT THE PROPER STATE REMEDY
FOR WRONGFUL DENIAL OF THE LICENSE WAS BY CERTIORARI TO REVIEW THE
UNLAWFUL ACTION OF THE LICENSING OFFICIALS, NOT BY HOLDING PUBLIC
RELIGIOUS SERVICES IN THE PARK WITHOUT A LICENSE AND THEN DEFENDING
BECAUSE THE REFUSAL OF THE LICENSE WAS ARBITRARY.  HELD:  THE
CONVICTION DID NOT VIOLATE APPELLANT'S RIGHTS UNDER THE FIRST
AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT. 
PP. 408-414. 

(A)  IT CANNOT BE SAID THAT FAILURE OF OFFICIALS TO ACT IN ACCORDANCE
WITH STATE LAW, REDRESSABLE BY STATE JUDICIAL PROCEDURES, ARE STATE
ACTS VIOLATIVE OF THE FEDERAL CONSTITUTION.  P. 409. 

(B)  NOR CAN IT BE SAID THAT A STATE'S REQUIREMENT THAT REDRESS FOR
UNLAWFUL DENIAL OF THE LICENSE BE SOUGHT THROUGH APPROPRIATE JUDICIAL
PROCEDURE VIOLATES DUE PROCESS.  P. 409. 

(C)  ROYALL V. VIRGINIA, 116 U.S. 572; CANTWELL V. CONNECTICUT, 310
U.S. 296; AND THOMAS V. COLLINS, 323 U.S. 516, DISTINGUISHED.  PP. 410
414. 

(D)  THE CONSTITUTION DOES NOT REQUIRE APPROVAL OF THE VIOLATION OF A
REASONABLE REQUIREMENT FOR A LICENSE TO SPEAK IN PUBLIC PARKS BECAUSE
AN OFFICIAL ERROR OCCURRED IN REFUSING A PROPER APPLICATION.  P. 414. 

POULOS V. NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

APPELLANT'S CONVICTION OF A VIOLATION OF A CITY ORDINANCE FORBIDDING
THE HOLDING OF A RELIGIOUS MEETING IN A PUBLIC PARK WITHOUT A LICENSE
WAS SUSTAINED BY THE SUPREME COURT OF NEW HAMPSHIRE.  97 N.H. 352, 88
A.2D 860.  ON APPEAL TO THIS COURT, AFFIRMED, P. 414. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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.  (FN1) 

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 SEC. 22 OF THE
CITY ORDINANCE SET OUT BELOW.  (FN2)  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, 513, THAT: 

"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, 93, 81 A.2D 312, 313. 

IN COX V. NEW HAMPSHIRE, 312 U.S. 569, WE AFFIRMED ON APPEAL FROM THE
NEW HAMPSHIRE CONVICTION OF COX, ACKNOWLEDGING THE USEFULNESS, P. 576,
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: 

"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."  97 N.H., AT
95, 81 A.2D, AT 315. 

THEREUPON IT DISCHARGED THE CASE. 

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.  (FN3)  THE SUPERIOR COURT PASSED UPON THE ISSUES RAISED.  IT
HELD THAT COX V. NEW HAMPSHIRE, 312 U.S. 569, 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: 

"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." 

ON APPEAL, THE SUPREME COURT OF NEW HAMPSHIRE AFFIRMED.  (FN4)  IT
HELD THE ORDINANCE VALID ON ITS FACE UNDER COX V. NEW HAMPSHIRE, 312
U.S. 569.  WHILE THE COX CASE INVOLVED THE CLAUSE OF THE ORDINANCE,
SEC. 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 143, 16 A.2D, AT 513; COX
V. NEW HAMPSHIRE, 312 U.S., AT 573.  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. 

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.  (FN5)  IN HIS BRIEF, HE
PHRASES THE ISSUE DIFFERENTLY AS INDICATED BELOW.  (FN6)  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.  (FN7) 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. 

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 STATE V. COX, QUOTED AT P. 398 OF
THIS OPINION.  THIS STATE INTERPRETATION IS AS THOUGH WRITTEN INTO THE
ORDINANCE ITSELF.  WINTERS V. NEW YORK, 333 U.S. 507, 514.  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.  (FN8)  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.  (FN9)  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 CO. V. BONDURANT, 257 U.S.
282, 287; CHARLESTON ASSN. V. ALDERSON, 324 U.S. 182, 185-186.  (FN10)
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 PORTSMOUTH 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: 

"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." 

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. 

THE PRINCIPLES OF THE 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 NON SEQUITUR 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.  (FN11)  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. NEW YORK, 340 U.S.
290, 293-294; SAIA V. NEW YORK, 334 U.S. 558, 562.  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 560.  "WE 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 294. 

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, (FN12) 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.    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? 

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. 

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. 
(FN13) 

IT IS SAID THAT ROYALL V. VIRGINIA, 116 U.S. 572; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 306, AND THOMAS V. COLLINS, 323 U.S. 516,
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: 

"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 WILFUL 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  ...  . 

"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 582-583. 

IN CANTWELL V. 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: 

"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 302. 

WE SAID, SPEAKING OF THE SECRETARY: 

"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., AT 305. 

IN THE THOMAS CASE, A STATUTE OF TEXAS WAS INVOLVED THAT REQUIRED
LABOR UNION ORGANIZERS TO OBTAIN AN ORGANIZER'S CARD BEFORE SOLICITING
MEMBERSHIP.  SEC. 5, 323 U.S., AT 519, NOTE 1.  HE WAS ENJOINED FROM
SOLICITING MEMBERSHIP WITHOUT THE CARD AND VIOLATED THE INJUNCTION. 
ID., AT 518.  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.  ID., AT 532 ET SEQ. 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: 

"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.,
AT 540. 

THE COURT ALLOWED THE UNCONSTITUTIONALITY OF THE STATUTE TO BE USED
AS A COMPLETE DEFENSE TO CONTEMPT OF THE INJUNCTION. 

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 306.  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 SEC. 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.  AFFIRMED. 

FN1  SCHNEIDER V. STATE, 308 U.S. 147, 160. 

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." 

FN2  "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." 

FN3  "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." 

FN4  STATE V. POULOS, 97 N.H. 352, 88 A.2D 860. 

FN5  "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?" 

FN6  "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?" 
FN7  KING MFG. CO. V. AUGUSTA, 277 U.S. 100; JAMISON V. TEXAS, 318 U.S.
413.  WHEN THE APPEAL WAS DOCKETED WE POSTPONED DETERMINATION OF
JURISDICTION OF THE APPEAL TO THE HEARING ON THE MERITS.  28 U.S.C.
SEC. 1257(2); RULES OF THE SUPREME COURT, NO. 12(5).    FN8  STATE V.
DERRICKSON, 97 N.H. 91, 94, 81 A.2D 312, 314. 

FN9  NIEMOTKO V. MARYLAND, 340 U.S. 268, CONCURRENCE AT 282:  "A
LICENSING STANDARD WHICH GIVES AN OFFICIAL AUTHORITY TO CENSOR THE
CONTENT OF A SPEECH DIFFERS TOTO CAELO FROM ONE LIMITED BY ITS TERMS,
OR BY NONDISCRIMINATORY PRACTICE, TO CONSIDERATIONS OF PUBLIC SAFETY
AND THE LIKE." 

FN10  "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, WHICH WAS AFFIRMED IN COX V. NEW HAMPSHIRE,
312 U.S. 569.  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."  97 N.H. 352, 354, 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."  97 N.H.,
AT 356, 88 A.2D, AT 862-863. 

DISTINGUISHING HAGUE V. C.I.O., 307 U.S. 496, 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."  97
N.H., AT 356-357, 88 A.2D, AT 863. 

"THE REMEDY OF THE DEFENDANT POULOS FOR ANY ARBITRARY AND
UNREASONABLE CONDUCT OF THE CITY COUNCIL WAS ACCORDINGLY IN CERTIORARI
OR OTHER APPROPRIATE CIVIL PROCEEDINGS."  97 N.H., AT 357, 88 A.2D, AT
863. 

THIS CONCLUSION FOLLOWS THE RULE IN STATE V. STEVENS, 78 N.H. 268,
269-270, 99 A. 723, 724-725, THAT WHERE A LICENSE STATUTE IS VALID AN
ERRONEOUS REFUSAL OF THE LICENSE CANNOT BE ATTACKED COLLATERALLY ON
PROSECUTION FOR ACTING WITHOUT A LICENSE. 

FN11  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.
ALEXANDRIA, 341 U.S. 622, 641. 

LOVELL V. GRIFFIN, 303 U.S. 444, 451: 

"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,
MR. JUSTICE ROBERTS, IN CONSIDERING AN ORDINANCE THAT GAVE THE DIRECTOR
OF PUBLIC SAFETY DISCRETION AS TO ISSUE OF PARK PERMITS, P. 502,
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."  PP. 515-516. 

SCHNEIDER V. STATE, 308 U.S. 147, 160-161: 

"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. CONNECTICUT, 310 U.S. 296, 306-307: 

"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. NEW HAMPSHIRE, 312 U.S. 569,
574. 

"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 ANY CONSTITUTIONAL
RIGHT."  ID., AT 576. 

FN12  NEAR V. MINNESOTA, 283 U.S. 697, 712; BREARD V. ALEXANDRIA, 341
U.S. 622, 641; FIRST AMENDMENT. 

FN13  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; 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; 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, 48 F.
SUPP. 913, 917.  SEE CASES CITED, PARTICULARLY HALL V. GEIGER-JONES
CO., 242 U.S. 539, 554. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT. 

I AM CONSTRAINED TO PROTEST AGAINST THE COURT'S DISCUSSION UNDER
FIRST BECAUSE IT DEALS WITH AN ISSUE THAT IS NOT HERE. 

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. 

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: 

"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." 

IF LUCID ENGLISH MEANS WHAT IS 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.  (FN1)  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. NEW
HAMPSHIRE, 312 U.S. 569.  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.    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 SEC. 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. 

THE MATTER WAS PUT WITH ENTIRE ACCURACY IN THE RULING OF THE SUPERIOR
COURT, WHICH THE SUPREME COURT FOUND UNEXCEPTIONABLE: 

"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 353, 88 A.2D, AT 861. 

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: 

"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, WHICH
WAS AFFIRMED IN COX V. NEW HAMPSHIRE, 312 U.S. 569.  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 354, 88 A.2D, AT
861. 

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. 

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. 

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. 

THAT IS PRECISELY WHAT IS CORRECTLY DEFINED BY THE COURT AS THE
"SECOND" CONTENTION: 

"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." 

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.  (FN2)  AND THIS IS THE CONTENTION - THE STATUTE "AS
APPLIED" IN THIS SENSE - THAT THE COURT TREATS IN ITS DISCUSSION UNDER
SECOND. 

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 REMEDY (FN3) 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. 

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 354, 88 A.2D, AT 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, 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. 

FN1  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. 

FN2  SEE NOTE 1, SUPRA. 

FN3  SEE, E.G., NELSON V. MORSE, 91 N.H. 177, 178, 16 A.2D 61, 62. 

MR. JUSTICE BLACK, DISSENTING. 

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. 

I AGREE WITH THE COURT THAT THE VALIDITY OF THE SPEECH LICENSING
PHASE OF THIS NEW HAMPSHIRE LAW WAS NOT UPHELD IN COX V. NEW HAMPSHIRE,
312 U.S. 569.  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.   (FN1)  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.  (FN2)  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. 

FN1  "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. NEW HAMPSHIRE, 312
U.S. 569, 573. 

FN2  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. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE COURT CONCEDES, AS INDEED IT MUST UNDER OUR DECISIONS (SEE ROYALL
V. VIRGINIA, 116 U.S. 572; THOMAS V. COLLINS, 323 U.S. 516), 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. BANK, 308
U.S. 371.  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. OREGON, 299
U.S. 353, 365. 

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, P. 530; MURDOCK V.
PENNSYLVANIA, 319 U.S. 105, 115.  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. 

A LEGISLATURE THAT UNDERTAKES TO LICENSE OR CENSOR THE RIGHT OF FREE
SPEECH IS IMPOSING A PRIOR RESTRAINT (SEE NEAR V. MINNESOTA, 283 U.S.
697), 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.    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 THE CONSTITUTION SAYS NO GOVERNMENT SHALL DENY. 

IT WAS SAID BY WAY OF DICTUM IN ROYALL V. VIRGINIA, SUPRA, P. 582,
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: 

"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. 

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.  (FN1)  OF COURSE, A STATE COULD 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.  (FN2)  IT HAS NO PLACE
THERE.  IT IS A DOCTRINE DANGEROUS TO LIBERTY AND DESTRUCTIVE OF THE
GREAT RIGHTS GUARANTEED BY THE FIRST AMENDMENT. 

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. 

THERE IS ANOTHER ANSWER WHICH IS FOUND IN CANTWELL V. CONNECTICUT,
310 U.S. 296.  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
306): 

"  ...  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." 

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. 

FN1 THIS MARKS A DISTINCTION BETWEEN THE PRESENT CASE AND COX V. NEW
HAMPSHIRE, 312 U.S. 569.  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, P. 573: 

"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." 

FN2  BEAUHARNAIS V. ILLINOIS, 343 U.S. 250; DENNIS V. UNITED STATES,
341 U.S. 494; FEINER V. NEW YORK, 340 U.S. 315.  CF. BREARD V.
ALEXANDRIA, 341 U.S. 622; AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339
U.S. 382; OSMAN V. DOUDS, 339 U.S. 846. 
..END :





CALMAR STEAMSHIP CORP. V. SCOTT 345 U.S. 427 


NO. 303.  ARGUED JANUARY 15, 1953 - DECIDED APRIL 27, 1953 - 197 F.2D
795, JUDGMENT VACATED AND CAUSE REMANDED. 


PETITIONER CHARTERED A VESSEL TO THE UNITED STATES FOR A VOYAGE IN THE
WINTER OF 1941-42 TO A PORT OR PORTS IN THE PHILIPPINES AND RETURN, AND
BRITISH UNDERWRITERS ISSUED A POLICY OF WAR-RISK INSURANCE ON THE
VESSEL FOR THE VOYAGE.  AFTER THE VOYAGE HAD COMMENCED, AUSTRALIA WAS
DULY SUBSTITUTED FOR THE PHILIPPINES AS THE OUTBOUND DESTINATION.  IN
AUSTRALIA THE VESSEL WAS REQUISITIONED BY ALLIED AUTHORITIES AND
EMPLOYED FOR MILITARY PURPOSES.  IT WAS DAMAGED BY ENEMY AIRCRAFT AND
ABANDONED.  A WARRANTY IN THE POLICY PROVIDED:  "FREE OF CLAIMS ARISING
FROM (BRITISH OR ALLIED) CAPTURE OR  ...  REQUISITION  ...  BUT UNLESS
THE INSURED VESSEL IS CONDEMNED THIS WARRANTY SHALL NOT EXCLUDE LOSSES
...  CAUSED BY  ...  IMPLEMENTS OF WAR  ...  ."  HELD:  THIS POLICY
INSURED AGAINST THE LOSS IN THIS CASE, AND IT WAS IN FORCE WHEN THAT
LOSS OCCURRED, SINCE NO EXPLICIT DECISION HAD BEEN REACHED BY THE
REQUISITIONING AUTHORITIES TO PREVENT THE VESSEL FROM COMPLETING,
WITHIN A REASONABLE TIME, THE VOYAGE FOR WHICH THE INSURANCE WAS
ISSUED.  PP. 428-444. 

CALMAR STEAMSHIP CORP. V. SCOTT ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUIT IN ADMIRALTY TO RECOVER UPON A POLICY OF WAR-RISK INSURANCE
ISSUED TO COVER A VOYAGE BY PETITIONER'S VESSEL, THE DISTRICT COURT
HELD THE UNDERWRITERS LIABLE.  103 F. SUPP. 243.  THE COURT OF APPEALS
REVERSED.  197 F.2D 795.  THIS COURT GRANTED CERTIORARI.  344 U.S.
853.  JUDGMENT OF THE COURT OF APPEALS VACATED AND CAUSE REMANDED TO
THAT COURT, P. 444. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

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 POST, 446.  THE
DISTRICT COURT HELD THE UNDERWRITERS LIABLE FOR A CONSTRUCTIVE TOTAL
LOSS OF THE VESSEL.  103 F. SUPP. 243.  THE COURT OF APPEALS REVERSED. 
197 F.2D 795.  WE GRANTED CERTIORARI, 344 U.S. 853, 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. 

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. 

ON DECEMBER 30, THE PORTMAR ARRIVED AT SYDNEY, AUSTRALIA.  (FN1)
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. 

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. 

"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: 

"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. 

"THIS INSURANCE IS ALSO SUBJECT, HOWEVER, TO THE FOLLOWING WARRANTIES
AND ADDITIONAL CLAUSES: 

"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." 

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: 

"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." 

BUT A SAVING CLAUSE, FOLLOWING IMMEDIATELY, PROVIDES THAT: 

"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, (1953) 1 ALL E.R. 893,
899.  (FN2)  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," (FN3) 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. 

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. V. UNITED STATES, 267 U.S. 76.  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 ADVENTURE 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."  (FN4)  THE
FREE 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.  (FN5) 

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.  (FN6)  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. 

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 MEANT (FN7) - 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. 

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 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. 

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 OCEAN-GOING 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 VESSELS SIMILAR TO THE PORTMAR WERE SO HELD.  THE WITNESS -
THE ARMY COLONEL IN CHARGE - SPOKE OF "SOME 21 SMALL DUTCH VESSELS." 

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."  (FN8)  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.  361, WITH TASKER V. CUNNINGHAME, 1 BLIGH 87, AND
WOOLDRIDGE V. BOYDELL, 1 DOUG.  16; SEE 1 ARNOULD, MARINE INSURANCE
(13TH ED., BY LORD CHORLEY 1950), SECS. 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.
FORESTAL LAND, TIMBER AND RAILWAYS CO., (1942) A.C. 50, 80. 

THE KOEPANG EXPEDITION WAS UNDOUBTEDLY A VENTURE INCONSISTENT WITH
THE VOYAGE SPECIFIED IN THE PORTMAR'S INSURANCE.  (FN9)  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. V. UNITED STATES, 340 U.S. 54,
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. 

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 UNDERTAIN, 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, (FN10) 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. 

THE PROVISIONS OF THE POLICY CONTAIN NO TIME LIMITATIONS ON THE
DETAINMENTS AGAINST WHICH THEY INSURE.  THE DISTRICT COURT
CONSEQUENTLY, ALTHOUGH RECOGNIZING THAT "INDEED, 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. FORESTAL LAND, TIMBER AND RAILWAYS
CO., (1942) A.C. 50, MAY SUPPORT THE POSITION OF THE DISTRICT COURT. 
(FN11)  IT IS PERSUASIVE AUTHORITY, SINCE "THERE 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 INS.
CO., 263 U.S. 487, 493.  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. 

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. 

THE JUDGMENT OF THE COURT OF APPEALS MUST BE VACATED AND THE CAUSE
REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  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. 

FN2  "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 A 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 FORESTAL LAND, TIMBER AND RAILWAYS CO. V. RICKARDS,
(1941) 1 K.B. 225, 246-247. 

FN3  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. 

FN4  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 DETAINMENTS 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 NON-OPERATIVE CLAUSE?    FN5  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. 

FN6  SEE N. 5, SUPRA. 

FN7  THE WITNESS, WILLIAM D. WINTER, 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  ...  .  GOING 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. WINTER'S TESTIMONY WAS
INADMISSIBLE. 

FN8  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. 

FN9  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, SEC. 435.  BUT CF. AKTIEBOLAGET M. BANK V. AMERICAN
MERCHANT MARINE INS. CO., 241 N.Y. 197, 149 N.E. 830.  NOT UNLESS THE
KOEPANG TRIP MARKET 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. 

FN10  SEE N. 7, SUPRA. 

FN11  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 ATTEMPTED 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 ADVENTURE 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 SEVERLY 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, I.D., AT 106, AND OF MACKINNON,
L.J., (1941) 1 K.B., AT 252. 

MR. JUSTICE MINTON DISSENTS FOR THE REASONS STATED IN THE OPINION OF
CIRCUIT JUDGE LEARNED HAND, 197 F.2D 795. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

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,* 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: 

"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." 

*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. 

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. 
..END :













CALMAR STEAMSHIP CORP. V. UNITED STATES 345 U.S. 446 


NO. 262.  ARGUED JANUARY 15, 1953 - DECIDED APRIL 27, 1953 - 197 F.2D
795, JUDGMENT VACATED AND CAUSE REMANDED. 


UNDER THE SUITS IN ADMIRALTY ACT, WHICH AUTHORIZES THE FILING AGAINST
THE UNITED STATES IN THE DISTRICT COURTS OF LIBELS IN PERSONAM
CONCERNING VESSELS "OPERATED BY OR FOR THE UNITED STATES" AND "EMPLOYED
AS MERCHANT VESSELS," A PRIVATELY OWNED VESSEL OPERATED FOR HIRE FOR
THE UNITED STATES IS "EMPLOYED AS A MERCHANT VESSEL" ALTHOUGH THE
VESSEL BE ENGAGED ON A WAR MISSION.  PP. 446-456. 

CALMAR STEAMSHIP CORP. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE DISTRICT COURT ASSUMED JURISDICTION OF A LIBEL UNDER THE SUITS IN
ADMIRALTY ACT AND AWARDED A DECREE AGAINST THE UNITED STATES ON PART OF
THE LIBELLANT'S CLAIM.  103 F. SUPP. 243.  THE COURT OF APPEALS
REVERSED.  197 F.2D 795.  THIS COURT GRANTED CERTIORARI.  344 U.S.
853.  JUDGMENT OF THE COURT OF APPEALS VACATED AND CAUSE REMANDED TO
THAT COURT, P. 456. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

BY THE SUITS IN ADMIRALTY ACT (FN1) 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,
ON A PETITION WHICH THE GOVERNMENT DID NOT OPPOSE. 

THE VESSEL HERE, THE S.S. PORTMAR, AND THE VOYAGE ARE THOSE INVOLVED
IN NO. 303, CALMAR STEAMSHIP CORP V. SCOTT, ANTE, P. 427, 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 CHARTER
(FN2) DOES NOT COVER THE LOSS.  THE UNITED STATES IS ALSO LIABLE,
CALMAR 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 CHARTER
(FN3) TO HOLD THE OWNERS HARMLESS FROM ALL CONSEQUENCES OF SUCH
COMPLIANCE. 

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 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 PERTAINED 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
"NOTHING HEREIN STATED IS TO BE CONSTRUED AS A DEMISE OF THE VESSEL TO
THE CHARTERER." 

THE DISTRICT COURT FOUND THAT THE PORTMAR: 

"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. 

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.  (FN4)  BUT THE
COURT HELD AGAINST CALMAR ON THE MERITS OF THE LATTER'S CLAIM FOR
CHARTER HIRE FOR THE PERIOD FOLLOWING THAT DATE.  IT HELD ALSO THAT THE
UNITED STATES WAS NOT ON ANY THEORY LIABLE FOR THE LOSS OF THE VESSEL. 
ID., AT 269. 

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, AND BY BRADEY V. UNITED
STATES, 151 F.2D 742, UNITED STATES V. CITY OF NEW YORK, 8 F.2D 270,
AND THE NORMAN BRIDGE, 290 F. 575, AND TO HAVE BEEN "AT LEAST
RECOGNIZED" IN UNITED STATES GRAIN CORPORATION V. PHILLIPS, 261 U.S.
106.  197 F.2D 795, 801-802. 

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."  THE CASES 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 AS ITS SISTER STATUTE, THE PUBLIC VESSELS ACT, 43 STAT.
1112, 46 U.S.C. SEC. 781, WHICH PERMITS SUITS "FOR DAMAGES CAUSED BY A
PUBLIC VESSEL OF THE UNITED STATES," (FN5) 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 THE 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. 

THE WESTERN MAID, SUPRA, DEALT WITH ATTEMPTS TO BRING IN THE DISTRICT
COURTS "PROCEEDINGS IN REM FOR COLLISIONS THAT OCCURRED WHILE THE
VESSELS LIBELED WERE OWNED, ABSOLUTELY OR PRO HAC VICE, BY THE UNITED
STATES, AND EMPLOYED IN THE PUBLIC SERVICE."  257 U.S., AT 429.  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, "THE ONLY QUESTION REALLY OPEN TO
DEBATE," ID., AT 432, 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 IT
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.  (FN6)  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."  IDEM. 

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. 

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 SEC. 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) SEC. 1346, TO THE COURT OF
CLAIMS.  (FN7)  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 DISCRETE 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.  (FN8) 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. 
(FN9)  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.    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. 

THE JUDGMENT OF THE COURT OF APPEALS MUST BE VACATED AND THE CAUSE
REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  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.  SEC. 741. 


"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. SEC.  742. 

FN2  "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." 

FN3  "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." 

FN4  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. 

FN5  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."  46 U.S.C. SEC. 781. 

FN6  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. SEC. 808, PROVIDES IN PART:

"EVERY VESSEL PURCHASED, CHARTERED, OR LEASED FROM THE UNITED STATES
MARITIME COMMISSION 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, 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 248.  WE HAVE SAID THAT
THE SUITS IN ADMIRALTY ACT "WAS PASSED TO AVOID THE ENBARRASSMENT 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." 
BLAMBERG BROS. V. UNITED STATES, 260 U.S. 452, 458.  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 SEC. 1 OF THE SUITS IN ADMIRALTY
ACT WITH THE WAIVER OF IMMUNITY IN SEC. 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, N. 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 SEC. 1 AND THE WAIVER OF
SEC. 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. 

FN7  28 U.S.C. (SUPP. III) SEC. 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) SEC. 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.  SEC. 745, AND SIX YEARS IN
THE LATTER, 28 U.S.C. (SUPP. III) SEC. 2501.  THE STARTING POINTS FOR
ACCRUAL OF INTEREST VARY AS WELL.  COMPARE 41 STAT. 526, 46 U.S.C. SEC.
745, WITH 28 U.S.C. (SUPP. III) SEC. 2516; SEE DE LA RAMA S.S. CO. V.
UNITED STATES, 344 U.S. 386, 390. 

FN8  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, 184 F.2D 105; UNITED STATES V. LOYOLA, 161 F.2D 126. 
BUT CF. EASTERN S.S. LINES V. UNITED STATES, 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. 

FN9  SUIT WOULD LIE IN MOST INSTANCES UNDER THE TORT CLAIMS ACT, 60
STAT. 842. 
..END :






















UNITED STATES V. CARROLL 345 U.S. 457 


NO. 442.  ARGUED MARCH 11-12, 1953 - DECIDED APRIL 27, 1953 - AFFIRMED. 


1.  APPELLEE WAS INDICTED ON 101 COUNTS UNDER SEC. 145(A) OF THE
INTERNAL REVENUE CODE, AS AMENDED, FOR WILLFUL FAILURE TO FILE
"RETURNS" ON TREASURY FORM 1099 COVERING 101 PAYMENTS IN EXCESS OF $600
MADE TO A NAMED INDIVIDUAL.  UNDER TREASURY REGULATIONS 111, SEC.
29.147-1, SUCH FORMS ARE NOT REQUIRED TO BE SIGNED BUT ARE TO BE FILED
"WITH RETURN FORM 1096" SIGNED BY THE PAYOR.  HELD: THE "RETURN"
SPECIFIED IN SEC. 145(A) IS THAT PROVIDED IN FORM 1096, NOT THE ONE
PROVIDED IN FORM 1099; AND, SINCE THE ONLY OFFENSES CHARGED IN THE 101
COUNTS WERE FAILURES TO FILE FORM 1099, THE INDICTMENT WAS PROPERLY
DISMISSED.  PP. 458-460. 

2.  THIS DIRECT APPEAL UNDER 18 U.S.C. SEC. 3731 FROM A DECISION OF A
FEDERAL DISTRICT COURT DISMISSING THE INDICTMENT, IS PROPERLY BEFORE
THIS COURT, BECAUSE THE DISTRICT COURT RESTED ITS DECISION ON THE
"CONSTRUCTION OF THE STATUTE."  WHETHER THERE ARE OTHER OBJECTIONS TO
THE INDICTMENT, SUCH AS QUESTIONS OF VENUE, WHICH MIGHT ALSO LEAD TO
DISMISSAL IS NOT PROPERLY BEFORE THIS COURT ON THIS APPEAL.  P. 459,
FOOTNOTE. 

UNITED STATES V. CARROLL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

THE DISTRICT COURT DISMISSED AN INDICTMENT OF APPELLEE ON 101 COUNTS
UNDER SEC. 145 OF THE INTERNAL REVENUE CODE.  ON DIRECT APPEAL TO THIS
COURT UNDER 18 U.S.C. SEC. 3731, AFFIRMED, P. 460. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL UNDER THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC.
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 SEC. 145(A) OF THE INTERNAL REVENUE
CODE, AS AMENDED, SEC. 5(C), CURRENT TAX PAYMENT ACT OF 1943, 57 STAT.
126, 26 U.S.C. SEC. 145(A). 

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." 

TREASURY REGULATIONS 111, SEC. 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."  FROM 1099 CONTAINS NO
FORMAL DECLARATION BY THE PAYOR NOR ANY SIGNATURE BY HIM.  THOSE ARE
PROVIDED IN FORM 1096. 

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. 

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. 

THE DISTRICT COURT RULED THAT THE "RETURN" SPECIFIED IN SEC. 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.* 

*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. SEC.
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. 

THE QUESTION IS NOT WITHOUT DIFFICULTY.  BUT WE CONCLUDE THAT THE
DISTRICT COURT REACHED THE CORRECT RESULT. 

THE "RETURN" REQUIRED BY SEC. 147(A) IS TO BE MADE "IN SUCH FORM AND
MANNER" AS ARE PRESCRIBED IN THE REGULATIONS.  THE REGULATIONS PROVIDE
IN SEC. 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 SEC. 147(A).  THE VARIOUS FORMS 1099 SEEM TO HAVE THE
SAME RELATION TO FORM 1096 AS SCHEDULES HAVE TO AN ORDINARY INCOME TAX
RETURN.  FORM 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. 

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 SEC. 145(A) SEEMS TO US TO BE FULFILLED WHEN THE
SANCTION IS APPLIED ONLY TO A FAILURE TO FILE FORM 1096.  AFFIRMED. 
..END :













UNITED STATES V. JONES 345 U.S. 377 


NO. 556.  DECIDED APRIL 13, 1953 - 108 F. SUPP. 266, REMANDED TO THE
COURT OF APPEALS. 


INVOKING THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 3731, THE GOVERNMENT
APPEALED DIRECTLY TO THIS COURT FROM THE DISTRICT COURT'S DISMISSAL OF
AN INFORMATION CHARGING APPELLEE WITH VIOLATIONS OF THE CIVIL RIGHTS
ACT, 18 U.S.C. SEC. 242.  THE INITIAL ISSUE - AND A CRITICAL ISSUE -
RAISED BY THE GOVERNMENT'S APPEAL INVOLVED QUESTIONS RELATING TO THE
DISTRICT COURT'S CONSTRUCTION OF THE INFORMATION AND NOT TO THAT
COURT'S INTERPRETATION OF THE SCOPE OF THE CIVIL RIGHTS ACT.  HELD:
THIS COURT IS OF THE OPINION THAT THE APPEAL SHOULD HAVE BEEN TAKEN TO
A COURT OF APPEALS; AND, IN EXERCISE OF THE POWER CONFERRED UPON IT IN
SUCH CIRCUMSTANCES BY 18 U.S.C. SEC. 3731, THIS COURT REMANDS THE
APPEAL TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS IN THAT COURT. 
PP. 377-378. 

UNITED STATES V. JONES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

PER CURIAM. 

INVOKING THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 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. SEC. 242. 

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.  108 F. SUPP.
266. 

ON APPEAL, THE GOVERNMENT PREDICATES ITS ARGUMENT FOR REVERSAL UPON
THE ASSUMPTION THAT THE INFORMATION CHARGES FAR 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. 

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., 308 U.S. 188
(1939). 

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. SEC. 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
RESOLVED 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. 
..END :




WESTERN PACIFIC RAILROAD CORP. V. WESTERN PACIFIC RAILROAD CO. 345 U.S.
247 


NO. 150.  ARGUED DECEMBER 15-16, 1952 - DECIDED APRIL 6, 1953 - 197 F.2D
1012, 1013, ORDERS VACATED AND CAUSE REMANDED. 


1.  REFERRING TO A UNITED STATES COURT OF APPEALS, 28 U.S.C. SEC.
46(C) PROVIDES THAT, "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."  HELD: 

(A)  THIS 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.  PP. 250-259, 267. 

(B)  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.  PP. 256-259, 267. 

(C)  THE STATUTE DOES NOT COMPEL THE COURT TO ADOPT ANY PARTICULAR
PROCEDURE GOVERNING THE EXERCISE OF THE POWER; BUT, WHATEVER PROCEDURE
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.  PP. 259-261, 267. 

(D)  WHATEVER PROCEDURE 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.  PP.
261-262, 268. 

2.  HAVING LOST THEIR CASE IN A THREE-JUDGE DIVISION OF A COURT OF
APPEALS, PETITIONERS APPLIED FOR A REHEARING BEFORE THE COURT OF
APPEALS EN BANC.  THE DIVISION OF THREE JUDGES DENIED REHEARING AND
STRUCK AS UNAUTHORIZED BY LAW OR PRACTICE THE REQUEST THAT THE
REHEARING BE EN BANC.  PETITIONERS THEN APPLIED FOR LEAVE TO FILE A
MOTION TO REINSTATE THEIR PETITION FOR REHEARING EN BANC, CLAIMING THAT
SUCH A REQUEST WAS AUTHORIZED BY STATUTE AND REQUIRED THE ATTENTION OF
THE FULL COURT.  THE COURT OF APPEALS, EN BANC, DECLINED TO ENTERTAIN
THIS SECOND APPLICATION AND ANNOUNCED THAT THEREAFTER EACH PETITION FOR
REHEARING EN BANC IN A CASE DETERMINED BY A DIVISION OF THREE JUDGES
WOULD BE CONSIDERED AND DISPOSED OF BY SUCH DIVISION OF THREE JUDGES AS
AN ORDINARY PETITION FOR REHEARING.  HELD: 

(A)  THE ORDER OF THE DIVISION DENYING PETITIONERS A REHEARING AND
THE ORDER OF THE FULL COURT DENYING PETITIONERS LEAVE TO FILE A MOTION
TO REINSTATE THEIR PETITION FOR REHEARING EN BANC ARE VACATED; AND THE
CASE IS REMANDED TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS.  PP.
263-267. 

(B)  ON REMAND, AND IN THE LIGHT OF THIS COURT'S INTERPRETATION OF
THE STATUTE AND THE BASIC REQUIREMENTS NECESSARY FOR ITS EFFICIENT
ADMINISTRATION, THE COURT OF APPEALS SHOULD DETERMINE AND CLEARLY SET
FORTH THE PARTICULAR PROCEDURE IT WILL FOLLOW, HENCEFORTH, IN
EXERCISING ITS EN BANC POWER.  P. 268. 

(C)  IF THE COURT OF APPEALS 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.  P. 268. 

WESTERN PACIFIC RAILROAD CORP. ET AL. V. WESTERN PACIFIC RAILROAD CO. ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT.* 

*TOGETHER WITH NO. 160, METZGER ET AL. V. WESTERN PACIFIC RAILROAD
CO. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

IN PETITIONERS' SUIT FOR AN ACCOUNTING, RELIEF WAS DENIED BY THE
DISTRICT COURT.  85 F. SUPP. 868.  A DIVISION OF THE COURT OF APPEALS
AFFIRMED, 197 F.2D 994, AND DENIED REHEARING AND STRUCK A PETITION THAT
REHEARING BE EN BANC.  197 F.2D 1012.  SITTING EN BANC, THE COURT OF
APPEALS DECLINED TO ENTERTAIN A PETITION FOR LEAVE TO FILE A MOTION TO
REINSTATE THE PETITION FOR REHEARING EN BANC.  197 F.2D 1013.  THIS
COURT GRANTED CERTIORARI.  344 U.S. 809.  ORDERS VACATED AND CAUSE
REMANDED, PP. 267-268. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

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. 

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. 

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. 

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. 

THE ISSUES STEM FROM 28 U.S.C. SEC. 46(C).  IT READS: 

"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." 

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. 

OBVIOUSLY, THE CLAIM CALLS FOR CLOSE ANALYSIS OF SEC. 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? 

IN OUR VIEW, SEC. 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. 

THE STATUTE, ENACTED IN 1948, IS BUT A LEGISLATIVE RATIFICATION OF
TEXTILE MILLS SECURITIES CORP. V. COMMISSIONER, 314 U.S. 326 (1941) - 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. 

AS EARLY AS 1938, THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES
(FN1) 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."  (FN2) THE RECOMMENDATION
WAS RENEWED IN 1939 AND AGAIN IN 1940.  (FN3) THEREAFTER, IN 1941, WHEN
A CONFLICT DEVELOPED BETWEEN CIRCUITS (FN4) 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 SEC. 117: 

"  ...  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. 

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."  (FN5)

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. 

SUBSEQUENT HISTORY OF LATER PROPOSALS - DRAFTED IN SUBSTANTIALLY
SIMILAR LANGUAGE - DISCLOSES NO CHANGE IN PURPOSE.  THE AMENDMENT TO
SEC. 117 OF THE OLD JUDICIAL CODE PASSED THE HOUSE, BUT IT WAS NEVER
ACTED UPON BY THE SENATE.  (FN6)  IT MAY HAVE DIED BECAUSE THIS COURT'S
DECISION IN TEXTILE MILLS INTERVENED. 

THE INTER-CIRCUIT CONFLICT WHICH BROUGHT ON THE PROPOSED AMENDMENT TO
SEC. 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, 97 F.2D 867 (1938), THE
NINTH CIRCUIT HAD HELD THAT UNDER SEC. 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, (FN7) REACHED
A CONTRARY CONCLUSION: 

"  ...  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. 

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. 

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."  (FN8)  THIS PROPOSAL WAS THE GENESIS OF THE PRESENT SEC.
46(C).  (FN9)  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. 

THE FIRST LEGISLATIVE DRAFT OF SEC. 46(C) DID NOT DIFFER IN ANY
MATERIAL RESPECT FROM ITS PRESENT FORM, (FN10) 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
SEC. 46(C).  WE HAVE THE REVISER'S NOTES, WHICH ARE ENTITLED TO GREAT
WEIGHT.  (FN11)  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."  (FN12) 

THE REVISER'S NOTES TELL US THAT THEIR PURPOSE WAS TWO-FOLD:  TO
"AUTHORIZE THE ESTABLISHMENT OF DIVISIONS OF THE COURT," AND TO
"PROVIDE FOR THE ASSIGNMENT OF CIRCUIT JUDGES FOR HEARINGS" EN BANC. 
(FN13)  REFERRING TO THE LATTER PURPOSE, THE NOTES QUOTE EXTENSIVELY
FROM THIS COURT'S OPINION IN TEXTILE MILLS.  (FN14)  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 SEC. 46(C). 

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.  (FN15)  AN INTERPRETATION OF SEC. 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."  (FN16)  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."  (FN17) 

A FIRST READING OF SEC. 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 SEC. 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. 

THIS INTERPRETATION MAKES FOR AN HARMONIOUS READING OF THE WHOLE OF
SEC. 46.  (FN18)  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.    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. 

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 SEC.
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 SEC. 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. 

ACCORDINGLY, WE HOLD THAT SEC. 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 SEC. 46(C) WHICH REQUIRES THE FULL BENCH TO ADHERE
TO A RULE WHICH DELEGATES THAT RESPONSIBILITY TO THE DIVISION.  BECAUSE
SEC. 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.  (FN19) 

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 SEC. 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. 
(FN20)  IF SEC. 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," (FN21) THE RESPONSIBILITY LIES WITH
THIS COURT TO DEFINE THESE REQUIREMENTS AND INSURE THEIR OBSERVANCE. 

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 SEC. 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 SEC. 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. 

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.  (FN22)  IF, IN THE EXERCISE OF ITS DISCRETION
UNDER SEC. 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.  (FN23)
AND OF COURSE TO HOLD THAT COUNSEL ARE ENTITLED TO SPEAK 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. 

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. 

THE FOREGOING SHOULD MAKE IT CLEAR THAT REJECTION OF PETITIONERS'
INTERPRETATION OF SEC. 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. 

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: 

"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."  197 F.2D,
AT 1012. 

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. 

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.  (FN24)  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.  (FN25)
INDEED, AT THAT TIME, IT WAS BY NO MEANS CLEAR JUST WHAT PROCEDURE THE
COURT FOLLOWED TO CONVENE ITSELF EN BANC.  (FN26) 

FOLLOWING THE SECOND DECISION OF THE DIVISION, PETITIONERS REVEWED
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 SEC. 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 SEC.
46(C) THE COURT SAID, 197 F.2D, AT 1015: 

"THE STATUTE, IT WILL BE RECALLED, COMMITS TO A 'COURT OR DIVISION OF
NOT MORE THAN 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. SEC. 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 SEC. 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. 

"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 BANC IN CASES DETERMINED BY DIVISIONS OF THREE JUDGES WILL
BE CONSIDERED AND DISPOSED OF BY THE LATTER AS ORDINARY PETITIONS FOR
REHEARING." 

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 APPARENTLY ACTED ON THE THEORY THAT IT WAS "WITHOUT
AUTHORITY IN LAW" TO CONSIDER THE EN BANC REQUEST. 

THIS LANGUAGE ALSO SUGGESTS THAT THE COURT THOUGHT THAT IT HAD NO
DISCRETION IN ADMINISTERING THE EN BANC POWER, THAT SEC. 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 OPINION (FN27) 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 SEC. 46(C). 

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 SEC.
46(C). 

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. 

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. 

FN1  NOW THE JUDICIAL CONFERENCE OF THE UNITED STATES. 

FN2  ANNUAL 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. 

FN3  ANNUAL REPORT OF THE ATTORNEY GENERAL (1939) PP. 15, 16.  REPORT
OF THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES (1940) P. 7. 

FN4  LANG'S ESTATE V. COMMISSIONER, 97 F.2D 867 (C.A. 9TH CIR. 1938);
COMMISSIONER V. TEXTILE MILLS SECURITIES CORP., 117 F.2D 62 (C.A. 3D
CIR. 1940), DISCUSSED IN TEXT INFRA. 

FN5  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. 

FN6  87 CONG. REC. 8117.  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. 

FN7  SUPRA, NOTE 4. 

FN8  MEMORANDUM OF AUGUST 18, 1944, SUBMITTED TO THE COMMITTEE ON
REVISION OF LAWS ON AUGUST 21, 1944.  SEE NOTE 9, INFRA. 

FN9  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 SEC. 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." 

FN10  H.R. 3498, 79TH CONG., 1ST SESS. SEC. 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 CAME INTO ITS PRESENT FORM IN THE NEXT DRAFT, H.R. 7124,
79TH CONG., 2D SESS.  SEC. 46(C). 

FN11  EX PARTE COLLETT, 337 U.S. 55, 68-71 (1949). 

FN12  S. REP. NO. 1559, 80TH CONG., 2D SESS., P. 2. 

FN13  THE FULL TEXT OF THE REVISER'S NOTE (6 U.S. CONG. SERV. '48,
PP. 1707-1708) READS: 

"BASED IN PART ON TITLE 28, U.S.C., 1940 ED., SEC. 212 (MAR. 3, 1911,
CH. 231, SEC. 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 LANGS ESTATE V. COMMISSIONER OF INTERNAL REVENUE, 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., SEC. 219); THE MAKING OF RULES AND REGULATIONS
(28 U.S.C., SEC. 219); THE APPOINTMENT OF A CLERK (28 U.S.C., SEC. 221)
AND THE APPROVAL OF THE APPOINTMENT AND REMOVAL OF DEPUTY CLERKS (28
U.S.C., SEC. 222); AND THE FIXING OF THE "TIMES" WHEN COURT SHALL BE
HELD (28 U.S.C., SEC. 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." 

FN14  314 U.S., AT 332. 

FN15  SEE THE NEXT TO FINAL PARAGRAPH QUOTED IN NOTE 13, SUPRA. 

FN16  S. REP. NO. 1559, 80TH CONG., 2D SESS., P. 2. 

FN17  HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE COMMITTEE ON THE
JUDICIARY OF THE HOUSE OF REPRESENTATIVES ON H.R. 1600 AND H.R. 2055,
80TH CONG., 1ST SESS. 19. 

FN18  THE FULL TEXT OF 28 U.S.C. SEC. 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." 

FN19  HAVING WIDE DISCRETION THE COURT MAY PROVIDE THAT THE POWER MAY
BE CALLED INTO 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. 

FN20  SEE 314 U.S., AT 334-336.  FOR FURTHER DISCUSSION ON THE
UTILITY AND IMPORTANCE OF PERMITTING COURTS OF APPEALS TO SIT EN BANC,
REFLECTING THE PURPOSE BEHIND SEC. 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, 316 U.S. 649 (1942), AND CIVIL AERONAUTICS BOARD V. AMERICAN
AIR TRANSPORT, INC., 344 U.S. 4 (1952).  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.  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 5. 

FN21  SEE UNITED STATES V. NATIONAL CITY LINES, 334 U.S. 573, 589
(1948). 

FN22  CF. UNITED STATES EX REL. ROBINSON V. JOHNSTON, 316 U.S. 649
(1942); CIVIL AERONAUTICS BOARD V. AMERICAN AIR TRANSPORT, INC., 344
U.S. 4 (1952). 

FN23  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. 

FN24  THAT A COURT OF APPEALS MAY BE SO CONSTITUTED IS, OF COURSE,
CLEAR.  SEE 28 U.S.C. SEC. 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. 

FN25  THE DISSENTING JUDGE WROTE, 197 F.2D, AT 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." 

FN26  COMPARE CRUTCHFIELD V. UNITED STATES, 142 F.2D 170, 178, NOTE
3, (1943); INDEPENDENCE LEAD MINES CO. V. KINGSBURY, 175 F.2D 983, 992
(1949); AND KRONBERG V. HALE, 181 F.2D 767 (1950).  SEE 63 HARV. L.
REV. 1449 (1950). 

FN27  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."  197 F.2D, AT 1016. 

IN BRADLEY MINING CO. V. BOICE, 198 F.2D 790 (C.A. 9TH CIR. 1952),
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, 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 SEC. 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 792, NOTE 2. 

MR. JUSTICE FRANKFURTER. 

WE HELD IN TEXTILE MILLS SECURITIES CORP. V. COMMISSIONER, 314 U.S.
326, 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. SEC. 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. 

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 (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.    THE LANGUAGE OF 28 U.S.C. SEC. 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 SEC.
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.  THERE 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 SEC. 46(C). 

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. 

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. SEC. 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. 

REHEARINGS EN BANC BY THESE COURTS, WHICH SIT IN PANELS, 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 SEC. 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. 

THE ENDS OF SEC. 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 SEC. 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 NON-SITTING OR OF A SITTING JUDGE, TO A
DETERMINATION BY THE ENTIRE COURT OF WHETHER OR NOT A REHEARING EN BANC
IS CALLED FOR. 

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 SEC. 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 PETITIONS FOR REHEARING EN BANC - IF
THERE ARE TO BE SUCH PETITIONS AND IF THROUGH THEM ALONE SEC. 46(C) IS
TO BE IMPLEMENTED - WOULD CONSTITUTE ADOPTION OF A PERMISSIBLE
PROCEDURE FOR THE EXERCISE OF THE POWER CONFERRED BY SEC. 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 SEC. 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. 

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. SEC. 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. 

MR. JUSTICE JACKSON, DISSENTING. 

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. 

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.  (FN1)  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 LITIGANT SHOULD NOT BE GIVEN
STANDING TO RAISE. 

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 A 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. 

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, (FN2) 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. 
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. 

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. 

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, 784-785, OR AS A WAIVER OF A TORT AND SUIT IN
ASSUMPSIT, BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSN. 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.    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. 
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. 

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. 

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. 

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? 

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. 

I WOULD REVERSE AND REMAND TO THE DISTRICT COURT FOR FINDINGS IN
ACCORDANCE WITH THIS SKETCHILY STATED DOCTRINE OF UNJUST ENRICHMENT. 

FN1  THE NINTH CIRCUIT HAS FOLLOWED THIS PROCEDURE ON SEVERAL
OCCASIONS.  SOUTHERN PACIFIC CO. V. GUTHRIE, 186 F.2D 926; HOPPER V.
UNITED STATES, 142 F.2D 181; PACIFIC GAS & ELECTRIC CO. V. SECURITIES
AND EXCHANGE COMMISSION, 139 F.2D 298; EVAPORATED MILK ASSOCIATION V.
ROCHE, 130 F.2D 843. 

FN2  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. 
..END :













HEALY V. COMMISSIONER OF INTERNAL REVENUE 345 U.S. 278 


NO. 76.  ARGUED DECEMBER 12, 1952 - DECIDED APRIL 6, 1953 - 194 F.2D
662, AFFIRMED - 194 F.2D 536, REVERSED. 


AN INDIVIDUAL TAXPAYER RECEIVED A SALARY FROM A CLOSELY HELD
CORPORATION AND REPORTED IT IN FULL IN HIS INCOME TAX RETURN FOR THE
YEAR IN WHICH IT WAS RECEIVED.  IN A SUBSEQUENT YEAR, IT WAS DETERMINED
THAT THE SALARY WAS EXCESSIVE AND THE TAXPAYER WAS REQUIRED AS
TRANSFEREE TO MAKE PAYMENTS ON TAX DEFICIENCIES OF THE CORPORATION FOR
PRIOR YEARS.  HELD:  THE TAXPAYER'S INCOME TAX FOR THE YEAR IN WHICH HE
RECEIVED THE EXCESSIVE SALARY MAY NOT BE RECOMPUTED SO AS TO EXCLUDE
FROM HIS INCOME FOR THAT YEAR THAT PART OF HIS SALARY HELD TO BE
EXCESSIVE AND WHICH RESULTED IN HIS TRANSFEREE LIABILITY.  PP. 279
285. 

(A)  HAVING RECEIVED THE SALARY UNDER A "CLAIM OF RIGHT," THE
TAXPAYER WAS REQUIRED TO REPORT IT AS INCOME AND TO PAY A TAX THEREON. 
PP. 281-282. 

(B)  FUNDS ARE HELD UNDER A "CLAIM OF RIGHT" WITHIN THE MEANING OF
NORTH AMERICAN OIL V. BURNET, 286 U.S. 417, WHEN RECEIVED AND TREATED
BY A TAXPAYER AS BELONGING TO HIM, EVEN THOUGH THE CLAIM MAY
SUBSEQUENTLY BE FOUND INVALID.  P. 282. 

(C)  THAT THE RECEIPT OF THE EXCESSIVE PORTION OF THE SALARY RESULTED
IN TRANSFEREE LIABILITY AS A "CONSTRUCTIVE TRUSTEE" DOES NOT PREVENT
APPLICATION OF THE "CLAIM OF RIGHT" DOCTRINE.  PP. 282-283. 

(D)  NOR CAN THE SALARY BE TREATED AS MONEY RECEIVED SUBJECT TO A
"RESTRICTION ON ITS USE" WITHIN THE SCOPE OF THE "CLAIM OF RIGHT"
DOCTRINE, EVEN THOUGH THE FACTS WHICH ULTIMATELY GAVE RISE TO THE
TRANSFEREE LIABILITY WERE IN EXISTENCE AT THE END OF THE TAXABLE YEAR. 
PP. 283-284. 

(E)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT, IN THIS
PARTICULAR CASE, AN INEQUITY MIGHT RESULT FROM REQUIRING THE TAXPAYER
TO TREAT AS INCOME AN AMOUNT WHICH EVENTUALLY TURNED OUT NOT TO BE
INCOME.  PP. 284-285. 

HEALY ET AL. V. COMMISSIONER OF INTERNAL REVENUE 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT.* 

*TOGETHER WITH NO. 138, COMMISSIONER OF INTERNAL REVENUE V. SMITH, ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

NO. 76.  THE TAX COURT HELD THAT THE PETITIONERS' INCOME FOR A PRIOR
YEAR SHOULD BE RECOMPUTED TO THEIR ADVANTAGE.  16 T.C. 200.  THE COURT
OF APPEALS REVERSED.  194 F.2D 662.  THIS COURT GRANTED CERTIORARI. 
344 U.S. 811.  AFFIRMED, P. 285. 

NO. 138.  THE TAX COURT HELD THAT RESPONDENT'S INCOME FOR A PRIOR
YEAR SHOULD BE RECOMPUTED TO HIS ADVANTAGE.  11 T.C. 174.  THE COURT OF
APPEALS AFFIRMED.  194 F.2D 536.  THIS COURT GRANTED CERTIORARI.  344
U.S. 813.  REVERSED, P. 285. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

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.  (FN1)  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, (FN2) WHILE THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT TOOK A CONTRARY VIEW OF THE
LAW.  (FN3)  WE GRANTED CERTIORARI TO RESOLVE THE CONFLICT.  (FN4) 

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 SEC. 311 OF THE
INTERNAL REVENUE CODE FOR THE CORPORATE DEFICIENCIES.  THE RECEIPT OF
EXCESSIVE SALARY WAS THE TRANSFER UPON WHICH THE TRANSFEREE LIABILITY
WAS PREDICATED.  AS A RESULT OF EITHER LITIGATION (FN5) 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. 

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. 

ONE OF THE BASIC ASPECTS OF THE FEDERAL INCOME TAX IS THAT THERE BE
AN ANNUAL ACCOUNTING OF INCOME.  (FN6)  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.  (FN7) 

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 V. BURNET, 286 U.S. 417 (1932), 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."  (FN8)
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 424. 

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.  (FN9)  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, 340 U.S. 590 (1951). 

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, 252 U.S. 189, 211 (1920). 

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.  (FN10) 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.  (FN11)  IT LACKS THE ATTRIBUTES OF A TRUE 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" (FN12) AND PRACTICAL "USE AND
BENEFIT" (FN13) WHICH THESE TAXPAYERS ENJOYED DURING A PRIOR ANNUAL
ACCOUNTING PERIOD, ANTECEDENT TO THE DECLARATION OF THE CONSTRUCTIVE
TRUST. 

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.  (FN14)  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; (FN15) OR, THROUGH SUBSEQUENT PROFITABLE OPERATIONS, THE
CORPORATIONS MIGHT HAVE BEEN ABLE TO HAVE PAID THEIR TAXES OBVIATING
THE NECESSITY OF RESORT TO THE TRANSFEREES.  (FN16) 

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. 

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.  (FN17)  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.  (FN18)  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. 

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. 

FN1  GORDON W. HARTFIELD AND EDWIN E. HEALY, 16 T.C. 200
(1951)(CONSOLIDATED PROCEEDINGS); HALL C. SMITH, 11 T.C. 174 (1948). 

FN2  COMMISSIONER V. HARTFIELD, 194 F.2D 662 (1952). 

FN3  COMMISSIONER V. SMITH, 194 F.2D 536 (1952). 

FN4  344 U.S. 811, 813 (1952). 

FN5  CHARLES E. SMITH & SONS CO. V. COMMISSIONER, 184 F.2D 1011
(1950). 

FN6  REO MOTORS V. COMMISSIONER, 338 U.S. 442 (1950); HEINER V.
MELLON, 304 U.S. 271 (1938); BURNET V. SANFORD & BROOKS CO., 282 U.S.
359 (1931).  SEE I.R.C., SEC. 41. 

FN7  I.R.C., SEC. 42(A).  OTHER PERMISSIVE METHODS OF ACCOUNTING FOR
TAX PURPOSES ARE THE ACCRUAL BASIS, I.R.C., SECS. 41 AND 42, AND THE
INSTALLMENT BASIS, I.R.C., SEC. 44. 

FN8  UNITED STATES V. LEWIS, 340 U.S. 590, 592 (1951). 

FN9  4 TIFFANY, REAL PROPERTY, SEC. 1147. 

FN10  15A FLETCHER, CYCLOPEDIA CORPORATIONS, SECS. 7369-7389. 

FN11  3 SCOTT ON TRUSTS, SEC. 462.1; 3 BOGERT, TRUSTS AND TRUSTEES,
SEC. 471. 

FN12  RUTKIN V. UNITED STATES, 343 U.S. 130, 137 (1952). 

FN13  EISNER V. MACOMBER, 252 U.S. 189, 211 (1920). 

FN14  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. 

FN15  I.R.C., SEC. 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., SEC. 1111; RULE 32, TAX
COURT OF UNITED STATES. 

FN16  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, SEC. 53.29. 

FN17  G.C.M. 16730, XV-1 CUM. BULL.  179 (1936). 

FN18  I.R.C., SEC. 322(B).  SEE ALSO I.R.C., SECS. 275 AND 311(B). 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :











IN RE DISBARMENT OF ISSERMAN 345 U.S. 286 


NO. 5, MISC.  DECIDED APRIL 6, 1953. 


AT THE CONCLUSION OF THE NINE-MONTHS' TRIAL OF THE ELEVEN DEFENDANTS
WHOSE CONVICTIONS WERE AFFIRMED BY THIS COURT IN DENNIS V. UNITED
STATES, 341 U.S. 494, THE FEDERAL DISTRICT JUDGE SENTENCED THE DEFENSE
ATTORNEYS, INCLUDING RESPONDENT, TO JAIL FOR CONTEMPT.  THE
CONTEMPTUOUS ACTS CONSISTED MAINLY OF REPETITIOUS AND INSOLENT
OBJECTIONS AND ARGUMENTS AFTER THE TRIAL JUDGE MADE RULINGS AND ORDERED
A HALT TO FURTHER ARGUMENTS ON THE POINTS INVOLVED.  FOLLOWING
AFFIRMANCE OF THE CONTEMPT SENTENCE HERE, 343 U.S. 1, THE SUPREME COURT
OF NEW JERSEY ORDERED RESPONDENT DISBARRED.  IN ACCORDANCE WITH RULE 2,
PAR. 5, OF THE RULES OF THIS COURT, AN ORDER WAS THEN ISSUED BY THIS
COURT REQUIRING RESPONDENT TO SHOW CAUSE WHY HE SHOULD NOT BE DISBARRED
HERE.  UPON THE RETURN TO THE RULE TO SHOW CAUSE, HELD:  RESPONDENT HAS
FAILED TO MEET THE BURDEN WHICH WAS UPON HIM TO SHOW GOOD CAUSE WHY HE
SHOULD NOT BE DISBARRED, AND IT IS ORDERED THAT HE BE DISBARRED FROM
PRACTICE IN THIS COURT.  PP. 286-290. 

IN RE DISBARMENT OF ISSERMAN. 

ON RETURN TO RULE TO SHOW CAUSE. 

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. 

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, 341 U.S. 494 (1951).  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, 182
F.2D 416 (1950).  UPON A LIMITED GRANT OF CERTIORARI, THIS COURT ALSO
AFFIRMED, SACHER V. UNITED STATES, 343 U.S. 1 (1952). 

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.  (FN1) 

WE THEN ISSUED A RULE FOR THE RESPONDENT TO SHOW GOOD CAUSE WHY HE
SHOULD NOT BE DISBARRED HERE.  (FN2)  THIS WAS DONE IN ACCORDANCE WITH
RULE 2, PAR. 5, OF THIS COURT: 

"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." 

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.  (FN3)  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. 

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, 243 U.S. 46
(1917).  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.  (FN4) 

THE CONTEMPTUOUS ACTS HAVE BEEN CATALOGUED ELSEWHERE AND NEED NOT BE
DETAILED HERE AGAIN.  (FN5) 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."  (FN6)  NOW WE HAVE
ADDITIONAL JUDICIAL VOICES CONDEMNING SUCH CONDUCT - THE UNANIMOUS
OPINION OF THE NEW JERSEY SUPREME COURT, SPEAKING THROUGH CHIEF JUSTICE
VANDERBILT. 

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; (FN7) RATHER WE HAVE CONSIDERED THE BASIC
NATURE OF THE ACTIONS WHICH WERE CONTEMPTUOUS AND THEIR RELATIONSHIP TO
THE FUNCTIONING OF THE JUDICIARY. 

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. 

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 RULES (FN8) AS A
RESULT OF RESPONDENT'S DISBARMENT IN NEW JERSEY. 

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. 
(FN9)  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."  (FN10)  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, (FN11) SO THAT WE
DID NOT SANCTION THAT CONDUCT IN GRANTING HIM ADMISSION. 

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. 

FN1  IN RE ISSERMAN, 9 N.J. 269, 87 A.2D 903 (1952). 

FN2 JOURNAL OF THE SUPREME COURT OF THE UNITED STATES, JUNE 2, 1952,
P. 222. 

FN3  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." 

FN4  IN RE VAN BEVER, 55 ARIZ. 368, 101 P.2D 790 (1940); IN RE
LEVERSON, 195 MINN. 42, 261 N.W. 480 (1935); COPREN V. STATE BAR, 64
NEV. 364, 183 P.2D 833 (1947); IN RE BROWN, 60 S.D. 628, 245 N.W. 824
(1932); STATE BOARD OF LAW EXAMINERS V. BROWN, 53 WYO. 42, 77 P.2D 626
(1938). 

FN5  THE CONTEMPT CERTIFICATE IN FULL IS SET FORTH IN UNITED STATES
V. SACHER, 182 F.2D 416, AT 430 (1950). 

FN6  SACHER V. UNITED STATES, 343 U.S. 1, 13 (1952). 

FN7  SEE EX PARTE TILLINGHAST, 4 PET. 108 (1830). 

FN8  "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. 

FN9  IN RE ISSERMAN, 9 N.J. 269, 279, 87 A.2D 903, 907 (1952). 

FN10  IBID. 

FN11  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. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION IN
THIS PROCEEDING. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER
AND MR. JUSTICE DOUGLAS JOIN, DELIVERED THE FOLLOWING OPINION. 

THIS PROCEEDING TO DISBAR ABRAHAM J. ISSERMAN RESULTS FROM HIS BEING
ADJUDGED GUILTY OF CONTEMPTUOUS CONDUCT IN THE TRIAL OF UNITED STATES
V. DENNIS, 183 F.2D 201, 341 U.S. 494.  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, 182
F.2D 416.  THIS COURT LIMITED ITS REVIEW TO QUESTIONS OF LAW AND
AFFIRMED.  SACHER V. UNITED STATES, 343 U.S. 1. 

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.  (FN1) 

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. 

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.  (FN2)  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
DERELICTION. 

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 AUTHORIZED
TO PUNISH HERE FOR CONTEMPTS WHICH MAY HAVE BEEN COMMITTED IN THAT
COURT."  EX PARTE TILLINGHAST, 4 PET. 108, 109.  THE REMEDY FOR
COURTROOM CONTEMPT SHOULD BE PROMPT AND DIRECT PUNISHMENT PROPORTIONED
TO THE OFFENSE.  ISSERMAN HAS BEEN SEVERELY PUNISHED.  HIS PENALTY HAS
INCLUDED WHAT IS RARE IN THE PUNISHMENT OF LAWYERS' CONTEMPTS - A
SUBSTANTIAL JAIL SENTENCE. 

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.  (FN3)  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 ETHICS, ON THE GROUND OF
YOUTH AND DOMINATION BY THEIR SENIORS - A REBUKE PERHAPS MORE
HUMILIATING THAN A SENTENCE.  (FN4)  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.  (FN5) 

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.    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. 

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. 

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. 

FN1  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." 

FN2  IN RE ISSERMAN, 6 N.J. MISC. 146. 

FN3  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,
686. 

FN4 JESSUP, ELIHU ROOT, 80-93. 

FN5  ROGERS, AMERICAN BAR LEADERS, 50. 
..END :














UNITED STATES V. PUBLIC UTILITIES COMMISSION OF CALIFORNIA 345 U.S. 295 



NO. 205.  ARGUED JANUARY 14, 1953 - DECIDED APRIL 6, 1953 - REVERSED. 


RESPONDENT POWER COMPANY PRODUCES ELECTRICITY IN CALIFORNIA, PARTIALLY
BY HYDROELECTRIC PROJECTS LICENSED UNDER PART I OF THE FEDERAL POWER
ACT, AS AMENDED BY TITLE II OF THE PUBLIC UTILITY ACT OF 1935, AND
SELLS A PORTION OF IT TO THE NAVY DEPARTMENT AND TO A NEVADA COUNTY FOR
CONSUMPTION IN NEVADA.  THE POWER IS TRANSMITTED AT HIGH VOLTAGE TO THE
COMPANY'S SUBSTATION IN CALIFORNIA, WHENCE IT IS TRANSMITTED OVER LINES
OWNED BY THE NAVY AND BY THE COUNTY INTO NEVADA, WHERE IT IS STEPPED
DOWN FOR LOCAL DISTRIBUTION AND CONSUMPTION.  THE POWER SOLD TO THE
NAVY IS USED LARGELY IN OFFICIAL OPERATIONS AT A NAVY DEPOT, THOUGH
PART IS DISTRIBUTED FOR PRIVATE CONSUMPTION AT A NEARBY NAVY HOUSING
PROJECT.  THE  POWER SOLD TO THE COUNTY IS PRACTICALLY ALL RESOLD TO
LOCAL CONSUMERS.  HELD:  THE RATES FOR SUCH SALES OF POWER FOR RESALE
ARE SUBJECT TO REGULATION BY THE FEDERAL POWER COMMISSION UNDER PART II
OF THE FEDERAL POWER ACT.  PP. 299-318. 

1.  THE FEDERAL POWER COMMISSION HAS JURISDICTION UNDER SEC. 201(B)
OF THE ACT, WHICH EXTENDS "TO THE TRANSMISSION OF ELECTRIC ENERGY IN
INTERSTATE COMMERCE AND TO THE SALE OF ELECTRIC ENERGY AT WHOLESALE IN
INTERSTATE COMMERCE"; AND REGULATION OF THE RATES OF SUCH SALES IS
AUTHORIZED BY SECS. 205(A) AND 206(A).  PP. 299-300. 

(A)  THE OPERATIONS IN QUESTION ARE IN INTERSTATE COMMERCE WITHIN THE
MEANING OF SEC. 201(B) OF THE ACT; AND THE FACT THAT THE ELECTRICITY IS
TRANSMITTED ACROSS THE STATE BOUNDARY OVER LINES OWNED BY THE NAVY AND
BY THE COUNTY, AS PURCHASERS, IS IRRELEVANT.  PP. 299-300. 

(B)  THE LIMITATION IN PART II OF THE ACT THAT FEDERAL REGULATION
SHALL "EXTEND ONLY TO THOSE MATTERS WHICH ARE NOT SUBJECT TO REGULATION
BY THE STATES" DOES NOT APPLY TO THE FACTS OF THIS CASE; AND SEC. 20 OF
PART I OF THE ACT DOES NOT REQUIRE A DIFFERENT RESULT.  PP. 300-311. 

(C)  FEDERAL RATE JURISDICTION UNDER PART II IS NOT EXCLUDED BY THE
FACT THAT SOME PORTION OF THE POWER SOLD ORIGINATED IN HYDROELECTRIC
PROJECTS FEDERALLY LICENSED UNDER PART I. P. 302. 

(D)  BY SEC. 20 OF PART I, CONGRESS DID NOT CONFER ON THE STATES
JURISDICTION OVER HYDROELECTRIC ENERGY TRANSMITTED ACROSS STATE LINES
FOR RESALE.  PP. 303-305. 

(E)  CONGRESS IN SEC. 20 OF PART I DID NOT CHARGE THE STATES WITH THE
RESPONSIBILITY OF REGULATING RATES OF INTERSTATE SALES OF ELECTRICITY
THROUGH THE USE OF THE FEDERAL POWER OVER GOVERNMENT PROPERTY.  P.
305. 

(F)  THE LIMITATIONS OF SEC. 201(A) ON FEDERAL REGULATION CANNOT, AND
WERE NOT INTENDED TO, PRESERVE AN EXCLUSIVE STATE REGULATION OF
WHOLESALE HYDROELECTRIC SALES ACROSS STATE BORDERS.  PP. 310-311. 

2.  THE FEDERAL POWER COMMISSION HAS AUTHORITY OVER THE SALES TO THE
COUNTY AND TO THE NAVY.  PP. 312-316. 

(A)  THE PROVISION OF SUBSECTION (C) OF SEC. 201 THAT "SALE OF
ELECTRIC ENERGY AT WHOLESALE" MEANS A SALE TO ANY "PERSON" FOR RESALE,
IS NOT TO BE CONSTRUED AS EXCLUDING SALES TO A MUNICIPALITY OR TO THE
NAVY.  PP. 312-316. 

(B)  THE ADDITION OF THE WORD "PERSON" IN THE DEFINITIONS IN SEC.
201(D) WAS NOT INTENDED AS A LIMITATION ON THE JURISDICTION OF THE
COMMISSION.  P. 313. 

3.  THE SALES HERE WERE NOT EXEMPT FROM COMMISSION JURISDICTION UNDER
SEC. 201(B) AS SALES OVER "LOCAL DISTRIBUTION" FACILITIES, AND THEY
WERE "FOR RESALE" THOUGH THE CONTRACTS DID NOT SO SPECIFY.   P. 316. 

4.  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 IS A QUESTION WHICH IS NOT RIPE FOR CONSIDERATION BY THIS
COURT ON THE INSTANT RECORD.  PP. 316-318. 

UNITED STATES V. PUBLIC UTILITIES COMMISSION OF CALIFORNIA ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.* 

*TOGETHER WITH NO. 206, COUNTY OF MINERAL, NEVADA, V. PUBLIC
UTILITIES COMMISSION OF CALIFORNIA ET AL., ALSO ON CERTIORARI TO THE
SAME COURT. 

ORDERS OF THE CALIFORNIA PUBLIC UTILITIES COMMISSION ASSERTED
JURISDICTION OVER RATES FOR CERTAIN SALES OF ELECTRIC POWER BY THE
RESPONDENT POWER COMPANY.  50 CAL. P.U.C. 749; 89 P.U.R.(N.S.)  359. 
THE STATE SUPREME COURT DENIED REVIEW, THUS AFFIRMING THE ORDERS.  THIS
COURT GRANTED CERTIORARI.  344 U.S. 810.  REVERSED, P. 318. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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. SEC. 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. 

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.  (FN1)  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, TO
BRING THE RECORD HERE FROM THE STATE PROCEEDINGS UNDER 28 U.S.C. SEC.
1257(3). 

                                        I. 

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."  SEC. 201(B).  REGULATION
OF THE RATES OF SUCH SALES - OTHER TYPES OF AUTHORITY IN CONNECTION
WITH SUCH INTERSTATE TRANSMISSION OPERATIONS ARE GRANTED IN OTHER
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, 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, AND ILLINOIS GAS CO. V.
PUBLIC SERVICE CO., 314 U.S. 498. 

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."  (FN4)  SO RESPONDENTS CONTEND THAT POWER COMMISSION
JURISDICTION ONLY BEGINS WHERE THE LOCAL REGULATORY POWER ENDS, AND
POINT TO PART I, SEC. 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: 

"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 ...  RATES  ...  THEREFOR AS CONSTITUTE INTERSTATE OR FOREIGN
COMMERCE  ...  ."  41 STAT. 1073, 16 U.S.C. SEC. 813. 

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.  (FN5)  RESPONDENTS POINT TO THIS AS SATISFYING SEC. 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. 

ADMITTEDLY, SEC. 20 CONTEMPLATED STATE REGULATION.  AND IT MAY WELL
BE, AS INDICATED BY THE CONGRESSIONAL HEARINGS, (FN6) 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. 
(FN7)  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. 

BUT THERE IS NO EVIDENCE THAT THIS WAS DONE WITH ANY FIRM INTENT TO
SETTLE WITH THE STATES A POWER ESSENTIALLY NATIONAL.  FOR WHATEVER
VIEWS OF THE DRAFTSMEN OF SEC. 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.  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.S., AT 89.  ATTLEBORO
REITERATED AND ACCEPTED THE HOLDING OF PENNSYLVANIA GAS CO. V. PUBLIC
SERVICE COMMISSION, 252 U.S. 23, 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. 

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 SEC. 20 OF THAT
PART, THE LATER PART II AUTHORITY WOULD APPLY EXCLUSIVELY AND DETERMINE
THE RESULT.  BUT, THEY SAY, SEC. 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 SEC. 20 "CONFERRED
JURISDICTION" ON THE STATES. 

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 RAHRER, 140 U.S. 545, 560-562.  (FN8) 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, CLARK
DISTILLING CO. V. WESTERN MARYLAND R. CO., 242 U.S. 311, 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.  (FN9)  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. 

NOR CAN IT SOUNDLY BE SAID THAT CONGRESS IN SEC. 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, SEC. 3, CL. 2.  AS INDICATED IN OUR
DISCUSSION OF THE COMMERCE POWER, THERE WAS IN 1920 WHEN SEC. 20 WAS
ENACTED NO FULL APPRECIATION OF THE LIMITS OF STATE POWER OVER SALES OF
ELECTRICITY FOR EXPORT OR IMPORT FOR RESALE.  SO THE LANGUAGE OF SEC.
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.  (FN10)  WE DO
NOT THINK SUCH AN ARRANGEMENT FOR WATER POWER ELECTRICITY AS PART I,
SEC. 20, PROVIDES CAN BE HELD TO BLOCK THE GENERAL AUTHORITY OF PART
II.  SEE NOTE 13, INFRA. 

THE ACTIONS OF THE CONGRESS FOLLOWING THE ATTLEBORO DECISION DO NOT
REFLECT ANY DIFFERENT INTERPRETATION OF SEC. 20.  WE NOTE SOME INTEREST
IN THE APPLICATION OF THAT SECTION IN THE LIGHT OF THE OPINION, BUT
NOTHING THAT IS DECISIVE OF RESPONDENTS' 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, SEC. 47 ET SEQ., WOULD HAVE ESTABLISHED A FEDERAL RATE
AUTHORITY OVER ALL INTERSTATE POWER SALES.  "POWER" WAS DEFINED, SEC.
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.  (FN11)  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.  (FN12)  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 SEC. 20 AGREEMENT OF THE INTERESTED STATES WHICH
RECEIVED CONGRESSIONAL APPROVAL AS A COMPACT.  (FN13)    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 SEC. 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.  (FN14) 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.  (FN15) 

THIS WOULD LARGELY DETERMINE OUR INTERPRETATION OF THE AMBIGUOUS
REFERENCE TO "MATTERS  ... SUBJECT TO REGULATION BY THE STATES," SEC.
201(A), IF NOTHING MORE WERE AVAILABLE TO WORK WITH.  HOWEVER, THERE IS
OTHER PROOF THAT CONGRESS DID NOT HAVE IN MIND SEC. 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.  (FN16)  THE PHRASE IS NOT ONCE MENTIONED AS THE DISTINCT
AFFIRMATION OF STATE POWER OVER INTERSTATE SALES FOR RESALE UNDER SEC.
20 THAT RESPONDENTS APPARENTLY WOULD RECOGNIZE IT TO BE. THERE ARE
INDEED FURTHER REASONS FOR REJECTING RESPONDENTS' CONSTRUCTION OF SEC.
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.  (FN17)  WE
CANNOT ASSUME THAT CONGRESS ENACTED PART II WITH THE PURPOSE OF
PERMITTING THE STATES TO REGULATE HYDROELECTRIC ENERGY THROUGH SEC.
20.  THIS IS ESPECIALLY SO IN VIEW OF THE DEARTH OF LEGISLATIVE
DISCUSSION OF THE MATTER.  (FN18) 

SO WE CONCLUDE THAT THE LIMITATIONS OF SEC. 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 SEC. 201(A), OUR STATEMENT THAT "EXCEPTIONS
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, WOULD BE AS APPLICABLE HERE AS TO SEC. 1(B) OF THE
NATURAL GAS ACT.  "PRODUCTION" AND "DISTRIBUTION" ARE ELSEWHERE
SPECIFICALLY EXCLUDED FROM COMMISSION JURISDICTION, SEC. 201(B); THE
PHRASE RELIED ON IN SEC. 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, 76, REFERRING TO H.R. REP. NO. 1318, 74TH
CONG., 1ST SESS. 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.  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. 

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 SUPPORTS 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; PANHANDLE PIPE LINE CO. V. PUBLIC SERVICE
COMMISSION, 332 U.S. 507, 514-515; INTERSTATE NATURAL GAS CO. V.
FEDERAL POWER COMMISSION, 331 U.S. 682, 690-691; ILLINOIS NATURAL GAS
CO. V. PUBLIC SERVICE CO., 314 U.S. 498, 506.  (FN19)

       II. 

WE TURN NEXT TO A DEFINITIONAL PROBLEM RAISED BY RESPONDENTS,
RELATING TO THE SALES TO MINERAL COUNTY.  IN SHORT, IT IS THIS:  SEC.
201 EXTENDS COMMISSION JURISDICTION TO "SALE OF ELECTRIC ENERGY AT
WHOLESALE IN INTERSTATE COMMERCE."  SUBSECTION (D) OF THAT SECTION
STATES: 

"THE TERM 'SALE OF ELECTRIC ENERGY AT WHOLESALE' WHEN USED IN THIS
PART MEANS A SALE OF ELECTRIC ENERGY TO ANY PERSON FOR RESALE." 

AND SEC. 3(4) (FN20) EQUATES "PERSON" WITH "INDIVIDUAL OR A
CORPORATION," WHILE SEC.  3(3) (FN21) EXCLUDES MUNICIPALITIES DEFINED
IN SEC. 3(7) (FN22) 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. 

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 SEC. 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. 

NOR DO WE FIND ANY EVIDENCE OF CONSCIOUS COORDINATION OF SECS. 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 SEC. 201(D) OCCURRED AFTER THE SECS. 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., SEC. 201(F), AND THE HOUSE AMENDMENT,
FROM WHICH SEC. 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
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 SEC.
201(D).  (FN23) 

A THIRD FACTOR, IN ADDITION TO THE STATUTORY SCHEME AND LEGISLATIVE
HISTORY OF SEC.  201(D), IS THE REJECTION OF RESPONDENTS' CONTENTION BY
THE COMMISSION AND COURTS.  THREE CIRCUITS HAVE JUST RECENTLY DONE SO,
(FN24) 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."  (FN25)  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. 

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 OIL CO., 204
U.S. 426; FERES V. UNITED STATES, 340 U.S. 135; INTERNATIONAL UNION V.
JUNEAU SPRUCE CORP., 342 U.S. 237, 243; JOHANSEN V. UNITED STATES, 343
U.S. 427, 432.  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. 

THE CLAIM THAT THE SALES HERE OCCURRED OVER "LOCAL DISTRIBUTION"
FACILITIES, SEC. 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.  (FN26)
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. 

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 IT 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. 
(FN27)  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 NON
JURISDICTIONAL INTRASTATE POWER. 

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."  SEC. 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.  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 ENGINEERING 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.  (FN28)  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.  REVERSED. 

FN1  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 SECS 35.3, 35.5, 35.20. 

FN2  SEC. 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  ...  ." 

FN3  SEC. 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." 

FN4  SEC. 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." 

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 SEC. 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, SEC. 201(B), AND IDEM AS REPORTED IN THE HOUSE, UNION
CALENDAR NO. 451, SEC. 201(B).  IT HAS BEEN SO CONSTRUED.  SAFE HARBOR
WATER POWER CORP., 5 F.P.C. 221, 235. 

FN5  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, DID NOT
SETTLE THE ISSUE, AND IT HAS BEEN JUDICIALLY DISCUSSED ONLY RARELY. 

FN6  HEARINGS, HOUSE COMMITTEE ON WATER POWER, 65TH CONG., 2D SESS.
65. 

FN7  IT WAS, OF COURSE, MORE THAN HISTORICAL ACCIDENT THAT CAUSED THE
SIMULTANEOUS PASSAGE OF THE HOLDING COMPANY ACT 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. 

FN8  SEE LEISY V. HARDIN, 135 U.S. 100; ADAMS EXPRESS CO. V.
KENTUCKY, 238 U.S. 190; ROSENBERGER V. PACIFIC EXPRESS CO., 241 U.S.
48; CLARK DISTILLING CO. V. WESTERN MARYLAND R. CO., 242 U.S. 311;
WHITFIELD V. OHIO, 297 U.S. 431; KENTUCKY WHIP & COLLAR CO. V. ILLINOIS
CENTRAL R. CO., 299 U.S. 334, 350. 

FN9  COMPARE THE WILSON ACT, 26 STAT. 313 (ALCOHOLIC BEVERAGES), THE
WEBB-KENYON ACT, 37 STAT. 699, 27 U.S.C. SEC. 122 (SAME); 32 STAT. 193
(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. SEC. 60; AND THE ASHURST-SUMNERS ACT, 49 STAT.
494, 18 U.S.C. SECS. 1761, 1762 (CONVICT-MADE GOODS). 

FN10  HEARINGS, HOUSE COMMITTEE ON WATER POWER, 65TH CONG., 2D SESS.
62-66, 95-97, IS MOST ILLUMINATING 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 SEC. 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 THAT SEC. 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. 

FN11  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. 

FN12  HEARINGS, SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. RES.
80, 71ST CONG., 2D SESS. 265. 

FN13 "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 CAN NOT ACQUIRE IT JOINTLY BY AGREEMENTS
BETWEEN THEMSELVES, EXCEPT BY SPECIFIC AUTHORIZATION OF CONGRESS IN THE
MANNER 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 SEC. 20 COULD NOT BE INTERPRETED AS
A "PERMISSIVE" STATUTE.  IBID., 127-129.  THE "COMPACT" INTERPRETATION
OF SEC. 20 WAS ADOPTED IN SAFE HARBOR WATER POWER CORP. V. FEDERAL
POWER COMMISSION, 124 F.2D 800. 

SEE FOOTNOTE 16, INFRA. 

FN14  THE CONCEPTION OF THE FEDERAL COMMISSION'S NEW FUNCTION WAS
PERHAPS MORE REVOLUTIONARY THAN COULD BE GATHERED BY MERELY COMPARING
THE NEW ACT WITH SEC. 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. 

FN15  IN FACT, THE HOUSE REPORT ON THE BILL, COMMENTING ON SEC. 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

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 ON H.R. 5423, 74TH CONG.,
1ST SESS. 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. 

FN16  "THIS LANGUAGE (THE SEC. 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 CONTROL 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, 179 F.2D 179, 187.  SEE ALSO HARTFORD ELECTRIC LIGHT CO. V.
FEDERAL POWER COMMISSION, 131 F.2D 953; JERSEY CENTRAL POWER & LIGHT
CO. V. FEDERAL POWER COMMISSION, 129 F.2D 183. 

FN17  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 SEC. 20 AS A PERMISSIVE REGULATION
STATUTE.  ON THE OTHER HAND, ARNESON, FEDERAL REGULATION OF ELECTRIC
UTILITIES, 66 U.S.L. REV. 133, AND UPDEGRAFF, 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. 

FN18  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 RESORT 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. 

FN19  SAFE HARBOR WATER POWER CORP., 5 F.P.C. 221, 239-243.  SEE ALSO
18 CFR SECS.  35.3, 35.20. 

IN VIEW OF OUR HOLDING THAT SEC. 20 DOES NOT, OF ITSELF, CONFER
JURISDICTION ON THE STATE COMMISSION OR COMMISSIONS IN THIS CASE, WE
NEED NOT DISCUSS THE MUCH-BRIEFED CONTENTION THAT ITS CONDITIONS HAVE
BEEN MET.  SEE, HOWEVER, SAFE HARBOR WATER POWER CORP. V. FEDERAL POWER
COMMISSION, 124 F.2D 800, 179 F.2D 179; PENNSYLVANIA WATER & POWER CO.
V. FEDERAL POWER COMMISSION, 343 U.S. 414; AND NOTES 13 AND 16, SUPRA. 

FN20  "'PERSON' MEANS AN INDIVIDUAL OR A CORPORATION."  SEC. 3(4). 

FN21  "'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."  SEC. 3(3). 

FN22  "'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."  SEC.
3(7). 

FN23  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
COMMERCE ON S. 1725, 74TH CONG., 1ST SESS. 256. 

AND BEFORE THE HOUSE COMMITTEE, COMMISSIONER SEAVEY RECORDED A
SIMILAR INTERPRETATION: 

"MR. PETTENGILL.  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. PETTENGILL.  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. PETTENGILL.  NOW THEN, SUPPOSE THAT A MUNICIPALITY ACQUIRES, BY
PURCHASE, ALL 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 A
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 OPERATION, I WOULD SAY NO, THERE IT
WOULD NOT BE."  HEARINGS, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.R. 5423, 74TH CONG., 1ST SESS. 397-398. 

SEE SEC. 201(F). 

FN24  CALIFORNIA ELECTRIC POWER CO. V. FEDERAL POWER COMMISSION, 199
F.2D 206; WISCONSIN V. FEDERAL POWER COMMISSION, 91 U.S. APP. D.C. 307,
201 F.2D 183, AND WISCONSIN-MICHIGAN POWER CO. V. FEDERAL POWER
COMMISSION, 197 F.2D 472. 

FN25  KANSAS GAS & ELECTRIC CO., 1 F.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 SEC. 201(A) PHRASE
AS MEANINGLESSLY AMBIGUOUS, HARTFORD ELECTRIC LIGHT CO., 2 F.P.C. 359,
AND NORTHWESTERN ELEC.  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, U.S. EX REL. CHAPMAN V. FEDERAL POWER
COMMISSION (C.A. 4TH CIR.), 191 F.2D 796.  WE NOTE, THOUGH, THAT THE
CONTENTION THERE WAS MADE IN REGARD TO THE APPLICATION OF SEC. 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 THE INTERIOR COULD NOT PETITION FOR
REVIEW IN THAT CASE SINCE HE WAS NOT A "PARTY AGGRIEVED," SEC. 313(B). 
191 F.2D, AT 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 V.
FEDERAL POWER COMMISSION, 345 U.S. 153, 156. 

FN26  SEE EAST OHIO GAS CO. V. TAX COMMISSION OF OHIO, 283 U.S. 465;
FEDERAL POWER COMMISSION V. EAST OHIO GAS CO., 338 U.S. 464, 469. 

FN27  SEE CALIFORNIA ELECTRIC POWER CO. V. FEDERAL POWER COMMISSION,
199 F.2D 206, 209. 

FN28  THE NINTH CIRCUIT, IN CALIFORNIA ELECTRIC POWER CO. V. FEDERAL
POWER COMMISSION, NO. 495, NOW PENDING BEFORE US ON A PETITION FOR
CERTIORARI, 199 F.2D 206, 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, 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. 

MR. JUSTICE BLACK, CONCURRING. 

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. 

MR. JUSTICE JACKSON, CONCURRING. 

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. 

I WILL FOREGO REPEATING WHAT I HAVE SAID ABOUT THIS PRACTICE IN
SCHWEGMANN BROS. V. CALVERT CORP., 341 U.S. 384, 395.  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 SEC. 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." 

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, 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.* 

*THIS HISTORY IS SET OUT IN MORE DETAIL IN JACKSON, STRUGGLE FOR
JUDICIAL SUPREMACY, PP. 89-91. 

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. 

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. 

MR. JUSTICE FRANKFURTER. 

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
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. 

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 CO., 273 U.S. 83.  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. 
..END :







DAMERON V. BRODHEAD 345 U.S. 322 


NO. 302.  ARGUED FEBRUARY 4, 1953 - DECIDED APRIL 6, 1953 - 125 COLO.
477, 244 P.2D 1082, REVERSED. 


1.  WHERE A SERVICEMAN DOMICILED IN ONE STATE IS ASSIGNED TO MILITARY
DUTY IN ANOTHER STATE, THE LATTER STATE IS BARRED BY SEC. 514 OF THE
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, AS AMENDED, FROM
IMPOSING A TAX ON HIS TANGIBLE PERSONAL PROPERTY TEMPORARILY LOCATED
WITHIN ITS BORDERS - EVEN WHEN THE STATE OF HIS DOMICILE HAS NOT TAXED
SUCH PROPERTY.  PP. 322-327. 

2.  AS THUS CONSTRUED AND APPLIED, THE STATUTE IS WITHIN THE
CONSTITUTIONAL POWER OF CONGRESS.  PP. 324-325. 

DAMERON V. BRODHEAD, MANAGER OF REVENUE & EX-OFFICIO TREASURER OF THE
CITY & COUNTY OF DENVER. 

CERTIORARI TO THE SUPREME COURT OF COLORADO. 

PETITIONER'S SUIT TO RECOVER PERSONAL PROPERTY TAXES PAID UNDER
PROTEST WAS SUSTAINED BY A STATE TRIAL COURT.  THE SUPREME COURT OF
COLORADO REVERSED.  125 COLO. 477, 244 P.2D 1082.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 891.  REVERSED, P. 327. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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.  (FN1)  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 SEC. 514 OF
THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, 54 STAT. 1186, AS AMENDED,
56 STAT. 777, 58 STAT. 722, 50 U.S.C. APP. SECS. 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, 125
COLO. 477, 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. SEC.
1257(3).  344 U.S. 891. 

PROVIDED ESSENTIALLY THAT: 

"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." 

THE 1944 AMENDMENT THERETO, WHICH IS CRUCIAL HERE, FIRST CONCERNED
PERSONAL PROPERTY TAXES.  IT STATED: 

"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." 

IT ALSO INTERPOLATED "PERSONAL" IN THE SECOND LINE OF SEC. 514(1). 
58 STAT. 722. 

RESPONDENT'S 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. 

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, AND CASES CITED; CF. JAMES
V. DRAVO CONTRACTING CO., 302 U.S. 134, 160-161. 

NOR DO WE SEE ANY DISTINCTION BETWEEN THOSE CASES AND THIS.  SURELY,
RESPONDENT 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; BOONE V. LIGHTNER, 319 U.S. 561.  CF.  BOARD OF COMMISSIONERS
V. SEBER, 318 U.S. 705.  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, SEC. 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' CORP.,
308 U.S. 21, 32-33; FEDERAL LAND BANK V. BISMARCK CO., 314 U.S. 95, 102
104.  CARSON V. ROANE-ANDERSON CO., SUPRA, AT 234.  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. 

WE TURN, THEN, TO THE INTERPRETATION OF THE STATUTE WITHIN THE
FACTUAL CONFINES OF THIS PARTICULAR CASE.  RESPONDENT'S 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.  (FN2)  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 COMM'N, ANTE, P. 295, DECIDED TODAY, 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.  (FN3)  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. 

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.  REVERSED. 

FN1  THIS STATUTE, IN STANDARD FORM, PROVIDES THAT "ALL PERSONAL
PROPERTY WITHIN THIS STATE ON MARCH FIRST AT TWELVE O'CLOCK MERIDIAN IN
THE THEN CURRENT YEAR SHALL BE LISTED AND ASSESSED," SEC. 72, AND THAT
THE TAXES SO ASSESSED "SHALL BE AND REMAIN A PERPETUAL LIEN UPON THE
PROPERTY SO LEVIED UPON," SEC. 197(A). 

FN2  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.

FN3  HEARINGS, NOTE 2, SUPRA, P. 28. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE POWER TO TAX IS BASIC TO THE SOVEREIGNTY OF THE STATES.  RAILROAD
CO. V. PENISTON, 18 WALL.  5.   THERE ARE FEW EXPRESS RESTRICTIONS OF
THAT POWER CONTAINED IN THE CONSTITUTION.  SEE ART. I, SEC. 10;
RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69; CANTON R. CO. V.
ROGAN, 340 U.S. 511.  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. PENNSYLVANIA, 319 U.S. 105.  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.  NOR MAY IT DISCRIMINATE IN ITS TAX SCHEME AGAINST
INTERSTATE COMMERCE OR PLACE AN UNDUE BURDEN ON IT.  ADAMS MFG. CO. V.
STOREN, 304 U.S. 307; GWIN, WHITE & PRINCE, INC. V. HENNEFORD, 305 U.S.
434; NIPPERT V. RICHMOND, 327 U.S. 416. 

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' CORP., 308 U.S. 21; FEDERAL LAND BANK V. BISMARCK CO., 314 U.S.
95; MARICOPA COUNTY V. VALLEY BANK, 318 U.S. 357; UNITED STATES V.
ALLEGHENY COUNTY, 322 U.S. 174.  CF. BOARD OF COMMISSIONERS V. SEBER,
318 U.S. 705.  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. NEW YORK, 306 U.S. 466), TO THE PROCEEDS UNDER
A CONTRACTOR'S CONTRACT WITH THE FEDERAL GOVERNMENT (JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, 149 ET SEQ.), OR TO SALES TAXES ON GOODS
AND SUPPLIES FURNISHED CONTRACTORS WITH THE FEDERAL GOVERNMENT. 
ALABAMA V. KING & BOOZER, 314 U.S. 1.  CF. BUCKSTAFF CO. V. MCKINLEY,
308 U.S. 358.  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.  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. NEW YORK, SUPRA, AT 478-479.  AS MR.
JUSTICE FRANKFURTER STATED IN HIS CONCURRING OPINION, ID., AT 492,
"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." 

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. NEW YORK, 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. 

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. 

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. 
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. 
..END :






















FORD MOTOR CO. V. HUFFMAN 345 U.S. 330 


NO. 193.  ARGUED DECEMBER 18-19, 1952 - DECIDED APRIL 6, 1953 - 195 F.2D
170, REVERSED. 


1.  A COLLECTIVE-BARGAINING AGREEMENT 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
FOR POST-EMPLOYMENT MILITARY SERVICE REQUIRED BY THE SELECTIVE TRAINING
AND SERVICE ACT OF 1940, IS VALID - ALTHOUGH IT WORKS TO THE
DISADVANTAGE OF OTHER EMPLOYEES, INCLUDING THOSE WHO WERE EMPLOYED
PRIOR TO THEIR MILITARY SERVICE.  PP. 331-336. 

2.  BY ACCEPTING SUCH A PROVISION IN A COLLECTIVE-BARGAINING
AGREEMENT, A UNION DOES NOT EXCEED ITS AUTHORITY AS A CERTIFIED
COLLECTIVE-BARGAINING REPRESENTATIVE UNDER THE NATIONAL LABOR RELATIONS
ACT, AS AMENDED.  PP. 336-343. 

FORD MOTOR CO. V. HUFFMAN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT.* 

*TOGETHER WITH NO. 194, INTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, V. HUFFMAN
ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

THE DISTRICT COURT DISMISSED A CLASS SUIT FOR A DECLARATORY JUDGMENT
AND INJUNCTIVE RELIEF BROUGHT BY AN EMPLOYEE TO INVALIDATE A SENIORITY
CLAUSE IN A COLLECTIVE-BARGAINING AGREEMENT BETWEEN HIS UNION AND HIS
EMPLOYER.  THE COURT OF APPEALS REVERSED.  195 F.2D 170.  THIS COURT
GRANTED CERTIORARI.  344 U.S. 814.  REVERSED AND REMANDED, P. 343. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

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.  (FN1) 

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.  (FN2)  HE CONTENDS ALSO THAT INTERNATIONAL'S ACCEPTANCE OF
THOSE PROVISIONS EXCEEDED ITS AUTHORITY AS A COLLECTIVE-BARGAINING
REPRESENTATIVE UNDER THE NATIONAL LABOR RELATIONS ACT, AS AMENDED. 
(FN3)  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. 
(FN4) 

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. 

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. 
(FN5)  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. 

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.  (FN6) 

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.  (FN7) 

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 LODGE V. CAMBELL, 337 U.S. 521; AND SEE TRAILMOBILE CO. V.
WHIRLS, 331 U.S. 40; FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328
U.S. 275.  SEE ALSO, OAKLEY V. LOUISVILLE & N.R. CO., 338 U.S. 278., AS
TO A VETERAN'S SENIORITY STATUS MORE THAN ONE YEAR AFTER HIS
REEMPLOYMENT. 

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. 

THE AUTHORITY OF EVERY BARGAINING REPRESENTATIVE UNDER THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED, IS STATED IN BROAD TERMS: 

"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  ...  . 

     *    *         *         *         * 

"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:  ...  ."  61 STAT. 140,
143, 29 U.S.C. (SUPP. V) SECS. 157, 159(A). 

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 REPRESENTATIVES 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, 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., AT 198, 202-204; TUNSTALL V.
BROTHERHOOD OF LOCOMOTIVE FIREMEN, 323 U.S. 210, 211; BROTHERHOOD OF
RAILROAD TRAINMEN V. HOWARD, 343 U.S. 768. 

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. 

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. 

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
LODGE V. CAMPBELL, SUPRA, AT 526-529. 

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. 

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.  (FN8)
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.  (FN9)
AMONG 15 PRINCIPLES DEVELOPED BY THAT COMMITTEE, AND "WHOLEHEARTEDLY"
ENDORSED BY THE SECRETARY OF LABOR, IN 1946, WERE THE FOLLOWING:    "8.
ALL VETERANS HAVING REEMPLOYMENT RIGHTS UNDER FEDERAL STATUTES SHOULD
BE ACCORDED THESE STATUTORY RIGHTS AS A MINIMUM. 

     *         *         *         *         *    "13.  NEWLY HIRED
VETERANS WHO HAVE SERVED A PROBATIONARY PERIOD AND 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 SERVICE-CONNECTED INJURIES OR DISABILITIES
EITHER THROUGH HOSPITALIZATION OR VOCATIONAL TRAINING."  (FN10) 

THE PROVISIONS BEFORE US REFLECT SUCH A POLICY.  (FN11)  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 LODGE V. CAMPBELL, SUPRA, AT 526, AND 528-529, N. 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. 

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. 

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. 

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. 

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.  REVERSED AND
REMANDED. 

FN1  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. 

FN2  54 STAT. 890, 56 STAT. 724, 58 STAT. 798, 60 STAT. 341, 50
U.S.C. APP. SEC. 308. 

FN3  49 STAT. 452, 61 STAT. 140, 65 STAT. 601, 29 U.S.C. (SUPP. V)
SECS. 157-159. 

FN4  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) SEC.
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, SEE
TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN, 323 U.S. 210; STEELE V.
LOUISVILLE & N.R. CO., 323 U.S. 192, 204-207. 

FN5  "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. SEC. 308(B)(B). 

FN6  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." 

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 THE AGREEMENT BETWEEN THE COMPANY AND THE
UNION DATED AUGUST 21, 1947, OR THE COMPARABLE PROVISION IN THE
SUPPLEMENTARY AGREEMENT BETWEEN THE COMPANY AND THE UNION DATED JULY
30, 1946, SHALL CONTINUE TO RECEIVE SUCH SENIORITY CREDIT." 

FN7  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. 

FN8  "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. SEC. 861. 

FN9  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. 

FN10  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. 

FN11  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. 
..END :





















UNITED STATES V. CERTAIN PARCELS OF LAND IN THE COUNTY OF FAIRFAX,
VIRGINIA 345 U.S. 344 


NO. 253.  ARGUED JANUARY 9, 1953 - DECIDED APRIL 6, 1953 - 196 F.2D 657,
REVERSED. 


UNDER THE LANHAM ACT OF 1940, AS AMENDED, THE GOVERNMENT FILED A
PETITION IN THE FEDERAL DISTRICT COURT FOR THE CONDEMNATION OF CERTAIN
EASEMENTS IN LAND AND TITLE TO SEWER MAINS WHICH TOGETHER COMPRISED THE
SEWERAGE SYSTEM OF A VIRGINIA COMMUNITY.  THE 1943 AMENDMENT OF THE ACT
PROVIDED 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  ...  ."  HELD: 

1.  THE 1943 AMENDMENT AUTHORIZED THE CONDEMNATION OF SUCH PROPERTY,
SUBJECT TO THE CONDITIONS STATED.  PP. 345-348. 

2.  UNDER THE 1943 AMENDMENT, HOUSEHOLDERS HAVING EASEMENTS OR RIGHTS
OF USER IN THE SEWER SYSTEM WERE NOT "OWNERS" WHOSE CONSENT TO THE
ACQUISITION WAS REQUIRED.  PP. 349-350. 

UNITED STATES V. CERTAIN PARCELS OF LAND IN THE COUNTY OF FAIRFAX,
VIRGINIA, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

A PETITION BY THE GOVERNMENT FOR CONDEMNATION UNDER THE LANHAM ACT,
AS AMENDED, WAS DISMISSED BY THE DISTRICT COURT.  101 F. SUPP. 172. 
THE COURT OF APPEALS AFFIRMED.  196 F.2D 657.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 812.  REVERSED, P. 350. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

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, SEC.
202 OF THE ACT OF JUNE 28, 1941, 55 STAT. 361, (FN1) AND A RIDER ON THE
APPROPRIATION ACT OF JULY 15, 1943, 57 STAT. 565, (FN2) BOTH AMENDMENTS
TO THE LANHAM ACT OF OCTOBER 14, 1940, 54 STAT. 1125, 42 U.S.C. SEC.
1521 ET SEQ.  QUESTIONS IMPORTANT IN THE ADMINISTRATION OF THE ACT
MOVED US TO GRANT CERTIORARI, 344 U.S. 812, TO REVIEW THE DISMISSAL OF
THE GOVERNMENT PETITION.  196 F.2D 657, AFF'G 101 F. SUPP. 172. 

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 TRUNK-LINE 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
INTERESTS, 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.  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.  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. 

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."  196 F.2D 657,
662, RELYING ON PUERTO RICO R. LIGHT & POWER CO. V. UNITED STATES, 131
F.2D 491. 

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.  SEC.
201.  WHILE THE GENERAL LANGUAGE "IMPROVED OR UNIMPROVED LANDS OR
INTERESTS IN LANDS" INCLUDED WITHIN SEC. 202 OF TITLE II OF THE LANHAM
ACT APPEARS TO AUTHORIZE THE TAKING HERE, UNITED STATES V. CARMACK, 329
U.S. 230, 242, 243, N. 13 (1946), IT IS NOT NECESSARY TO DEPEND ON THAT
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. SEC. 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. 

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.), SEC. 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, 308 U.S. 271 (1939).  THUS CONSTRUED, ALL OF THE STATUTORY
TERMS ARE GIVEN EFFECT. 

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. 

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, 156 F.2D 442, 445; UNITED STATES V. WELCH, 217 U.S. 333 (1910);
CF.  UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373, 378 (1945). 
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.  (FN3)  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.  REVERSED. 

FN1  "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." 

FN2  "  ...  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  ...  ." 

FN3  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 INTEGRATED 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. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE VINSON, WITH WHOM MR. JUSTICE REED JOINS,
DISSENTING. 

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, (FN1) AND THEIR
INTEREST IN THE SYSTEM IS CHARACTERIZED AS CONSTITUTING "  ...  THE
ONLY REAL VALUE THAT IT HAD."  (FN2)  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. 

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.  (FN3) 54 STAT. 1125, 55
STAT. 361, 57 STAT. 565; 42 U.S.C. SEC. 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. SEC. 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. SEC. 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. 

THE PURPOSE OF THE ORIGINAL LANHAM ACT OF 1940, 54 STAT. 1125, 42
U.S.C. SECS.  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 ...  ."    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. 

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 AMENDMENT (FN4) AND IN REPORTING ON ITS
OPERATION AFTER ENACTMENT.  (FN5)  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 SHOW THAT HAD THE
ISSUE BEEN RAISED, THE POWER TO CONDEMN GOING UTILITIES MIGHT HAVE BEEN
REJECTED OUT OF HAND. 

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, 131 F.2D 491
(1942).  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: 

"NONE OF THE FUNDS AUTHORIZED HEREIN SHALL BE USED TO ACQUIRE PUBLIC
WORKS ALREADY OPERATED BY PUBLIC OR PRIVATE AGENCIES."  89 CONG. REC.
7286. 

SENATOR TAFT EXPLAINED THIS AMENDMENT BY REFERENCE TO THE PUERTO
RICAN POWER CASE, CONCLUDING AS FOLLOWS: 

"  ...  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."  IBID.

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: 

"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. 

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. 

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.  (FN6) 

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. 

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, 164 U.S. 294, 299-300 (1896).  THE PROPOSITION WAS
RECENTLY RESTATED IN SWANSON V. UNITED STATES, 156 F.2D 442, 445 (C.A.
9TH CIR. 1946):  "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."  (FN7) 

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.  (FN8)  IF THERE
WERE IN THE LANHAM ACT WHAT THE MAJORITY OPINION READS INTO IT - A
CONGRESSIONAL POLICY TO FACILITATE NATIONAL ACQUISITION OF PRIVATELY
OWNED UTILITIES - THEN THERE MIGHT BE SOME JUSTIFICATION TO INTERPRET
"OWNERS" FROM A NARROWER SOURCE OF REFERENCE, SUCH AS ADMINISTRATIVE
CONVENIENCE. 

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, 89
F. SUPP. 571 (1948). 

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, 217 U.S. 333 (1910).  IT SHOULD FOLLOW, FROM THE
PRINCIPLES OF STATUTORY CONSTRUCTION THAT I HAVE URGED ABOVE, THAT THE
CONSENT OF THESE EASEMENT OWNERS WAS REQUIRED. 

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."  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 CORPORATION 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? 

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.  (FN9)  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.  (FN10)  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.  (FN11) 

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."  (FN12)  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 THE 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. 

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.  89 F.
SUPP. 567.  THE ANSWER PLEADS A BELIEF THAT THE CONDITIONAL CONSENT HAS
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. 

THE CONDEMNATION OF ONE SMALL SEWERAGE SYSTEM MAY SEEM 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. 

FN1  UNITED STATES V. CERTAIN PARCELS OF LAND IN FAIRFAX COUNTY, 101
F. SUPP. 172, 175 (D.C.E.D. VA. 1951); 89 F. SUPP. 567 (1950); 89 F.
SUPP. 571 (1948). 

FN2  UNITED STATES V. CERTAIN PARCELS OF LAND IN FAIRFAX COUNTY, 196
F.2D 657, 662 (C.A. 4TH CIR. 1952). 

FN3  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." 

FN4  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 AND TO LEASE THEM,
TO SELL THEM, TO TRANSFER THEM, AND ALSO TO MAKE LOANS AND GRANTS FOR
ALL OF THESE PURPOSES."  HEARINGS BEFORE THE HOUSE COMMITTEE ON PUBLIC
BUILDINGS AND GROUNDS ON H.R. 3213 AND H.R. 3570, 77TH CONG., 1ST SESS.
59. 

FN5  "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. 

FN6  "  ...  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. 

FN7  CF. DUBOIS V. HEPBURN, 10 PET. 1, 23 (1836), 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  ...  ." 

FN8  THUS IS GLOVER V. UNITED STATES, 164 U.S. 294 (1896), 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. 

FN9  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. 

FN10  THIS IS THE CONCLUSION REACHED BY THE COURT OF APPEALS.  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, 131 F.2D 491, 495
496 (C.A. 1ST CIR. 1942), 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. 

FN11  IN PROCEEDINGS IN THE DISTRICT COURT THE GOVERNMENT REFERRED TO
BELLE HAVEN REALTY CORP. AS THE "PURPORTED OWNER" OF THE SYSTEM, 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. 

FN12  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." 
..END :







UNITED STATES V. GILBERT ASSOCIATES, INC. 345 U.S. 361 


NO. 440.  ARGUED MARCH 11, 1953 - DECIDED APRIL 6, 1953 - 97 N.H. 411,
90 A.2D 499, REVERSED. 


1.  UNDER SEC. 3672 OF THE INTERNAL REVENUE CODE, WHICH PROVIDES THAT
THE TAX LIEN OF THE UNITED STATES SHALL NOT BE VALID AGAINST ANY
"JUDGMENT CREDITOR" UNTIL THE COLLECTOR HAS FILED THE REQUIRED NOTICE,
A NEW HAMPSHIRE TOWN WHICH HAD MADE AN ASSESSMENT OF AN AD VALOREM TAX
ON CERTAIN PROPERTY OF A CORPORATION WAS NOT A "JUDGMENT CREDITOR,"
EVEN THOUGH SUCH TAX ASSESSMENTS ARE, UNDER NEW HAMPSHIRE LAW, "IN THE
NATURE OF A JUDGMENT."  PP. 362-365. 

(A)  IN SEC. 3672, CONGRESS USED THE WORDS "JUDGMENT CREDITOR" IN THE
USUAL, CONVENTIONAL SENSE OF A JUDGMENT OF A COURT OF RECORD.  P. 364. 

(B)  THE PHRASE "JUDGMENT CREDITOR" DOES NOT EXTEND TO THE ACTION OF
TAXING AUTHORITIES WHO MAY BE ACTING JUDICIALLY, WHERE THE END RESULT
IS SOMETHING "IN THE NATURE OF A JUDGMENT."  P. 364. 

2.  WHERE THE TAX LIEN OF A TOWN AND THAT OF THE UNITED STATES ARE
BOTH GENERAL, AND THE TAXPAYER IS INSOLVENT, THE UNITED STATES IS
ENTITLED TO PRIORITY UNDER R.S. SEC. 3466.  PP. 365-366. 

3.  HERE THE TOWN HAD ONLY A GENERAL LIEN, BECAUSE IT HAD NOT
DIVESTED THE TAXPAYER OF EITHER TITLE OR POSSESSION.  PP. 365-366. 

UNITED STATES V. GILBERT ASSOCIATES, INC. 

CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE. 

THE STATE SUPREME COURT AWARDED PRIORITY TO THE CLAIM OF A TOWN AS
AGAINST A CLAIM OF THE UNITED STATES IN THE ESTATE OF AN INSOLVENT
CORPORATION.  97 N.H. 411, 90 A.2D 499.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 911.  REVERSED, P. 366. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

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 THE STATE COURT RECEIVER OF THE RESPONDENT-TAXPAYER, AN
INSOLVENT CORPORATION.  THE SUPREME COURT OF NEW HAMPSHIRE HELD THE
TOWN WAS ENTITLED TO PRIORITY, 97 N.H. 411, 90 A.2D 499, AND WE GRANTED
CERTIORARI, 344 U.S. 911. 

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 THE 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
NEW HAMPSHIRE ON AUGUST 6, 1948. 

UNDER SEC. 3672 OF THE INTERNAL REVENUE CODE, 56 STAT. 798, 26 U.S.C.
(1946 ED.)  SEC.  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 SEC. 3672, AND THE GOVERNMENT'S LIEN WAS
NOT VALID AS AGAINST THE TOWN'S. 

WAS THE TOWN A JUDGMENT CREDITOR WITHIN THE MEANING OF SEC. 3672? 
THE NEW HAMPSHIRE COURT IN THE INSTANT CASE SAID: 

"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; JAFFREY V. SMITH, 76
N.H. 168, 171; NOTTINGHAM V. COMPANY, 84 N.H. 419.  SEE ALSO, AUTOMATIC
SPRINKLER CORP. V. MARSTON, 94 N.H. 375."  97 N.H. 411, 414, 90 A.2D
499, 502. 

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 CO., 323 U.S. 353.  SEE ALSO HOWARD V.
COMMISSIONERS OF LOUISVILLE SINKING FUND, 344 U.S. 624. 

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. 
CONGRESS ENACTED SEC. 3672 TO MEET THE HARSH CONDITION CREATED BY THE
HOLDING IN UNITED STATES V. SNYDER, 149 U.S. 210, WHEN FEDERAL LIENS
WERE FEW, THAT A SECRET FEDERAL TAX LIEN WAS GOOD AGAINST A PURCHASER
FOR VALUE WITHOUT NOTICE. 

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 SEC. 3672 IN THE USUAL,
CONVENTIONAL SENSE OF A JUDGMENT OF A COURT OF RECORD, SINCE ALL STATES
HAVE SUCH COURTS.  (FN1)  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, (FN2) 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.  (FN3) 

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 SEC. 3672. 

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.  (FN4)  BUT SINCE
THE TAXPAYER WAS INSOLVENT, THE UNITED STATES CLAIMS THE BENEFIT OF
ANOTHER STATUTE TO GIVE IT PRIORITY, SEC. 3466 OF THE REVISED STATUTES,
31 U.S.C. (1946 ED.)  SEC.  191, THE PROVISIONS OF WHICH ARE SET FORTH
IN THE MARGIN.  (FN5) 

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. 

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. 
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 CO., SUPRA; ILLINOIS V. CAMPBELL, 329
U.S. 362, 370.  WHERE THE LIEN OF THE TOWN AND THAT OF THE FEDERAL
GOVERNMENT ARE BOTH GENERAL, AND THE TAXPAYER IS INSOLVENT, SEC. 3466
CLEARLY AWARDS PRIORITY TO THE UNITED STATES.  UNITED STATES V. TEXAS,
314 U.S. 480, 488. 

THE JUDGMENT OF THE SUPREME COURT OF NEW HAMPSHIRE IS REVERSED. 

FN1  SEE CONCURRRING OPINION OF MR. JUSTICE JACKSON IN UNITED STATES
V. SECURITY TRUST & SAVINGS BANK, SUPRA, AT P. 52. 

FN2  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; 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. 

FN3  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. 

FN4  "SEC.  3670.  PROPERTY SUBJECT TO LIEN. 

"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT (INCLUDING ANY INTEREST, PENALTY,
ADDITIONAL AMOUNT, OR ADDITION TO SUCH TAX, TOGETHER WITH ANY COSTS
THAT MAY ACCRUE IN ADDITION THERETO) SHALL BE A LIEN IN FAVOR OF THE
UNITED STATES UPON ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR
PERSONAL, BELONGING TO SUCH PERSON."  SEC. 3670 I.R.C., 26 U.S.C. (1946
ED.)  SEC.  3670. 

FN5  R.S. SEC. 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 FIRST BE 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, MAKE 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." 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED JOINS, DISSENTING. 

I CANNOT AGREE WITH THE OPINION OF THE COURT INSOFAR AS IT SUPPOSES
THAT SEC. 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." 
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 COMMON-LAW REQUIREMENTS BE
SATISFIED. 

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 SEC. 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,
155, 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 SEC. 3672.  NOTHING MORE OUGHT TO BE
REQUIRED. 

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 SEC. 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, WITH
UNITED STATES V. WADDILL CO., 323 U.S. 353, 355; SEE 56 YALE L.J.
1258.  BUT CF. ILLINOIS V. CAMPBELL, 329 U.S. 362, 376 (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. 
..END :




NEW JERSEY V. NEW YORK 345 U.S. 369 


NO. 5, ORIGINAL, OCTOBER TERM, 1950.  ARGUED MARCH 9, 1953 - DECIDED
APRIL 6, 1953. 


NEW JERSEY BROUGHT AN ORIGINAL SUIT IN THIS COURT AGAINST THE STATE OF
NEW YORK AND THE CITY OF NEW YORK TO ENJOIN A PROPOSED DIVERSION OF
DELAWARE RIVER WATER BY THE CITY OF NEW YORK FROM TRIBUTARIES WITHIN
THE STATE OF NEW YORK.  PENNSYLVANIA INTERVENED PRO INTERESSE SUO AND
PARTICIPATED ACTIVELY IN THE LITIGATION.  IN 1931, THIS COURT ENTERED A
DECREE, 283 U.S. 805, ENJOINING THE STATE OF NEW YORK AND THE CITY OF
NEW YORK FROM DIVERTING MORE THAN A SPECIFIED AMOUNT OF WATER PER DAY
AND PROVIDING THAT ANY PARTY MIGHT APPLY FOR A MODIFICATION OF THE
DECREE AT ANY TIME.  IN 1952, THE CITY OF NEW YORK, WITH THE APPROVAL
AND SUPPORT OF THE STATE OF NEW YORK, MOVED TO MODIFY THE DECREE SO AS
TO PROVIDE FOR THE DIVERSION OF ADDITIONAL QUANTITIES OF WATER.  NEW
JERSEY AND PENNSYLVANIA FILED ANSWERS OPPOSING SUCH MODIFICATION. 
SUBSEQUENTLY, THE CITY OF PHILADELPHIA MOVED FOR LEAVE TO INTERVENE,
ASSERTING ITS INTEREST IN THE USE OF DELAWARE RIVER WATER AND POINTING
TO THE RECENT GRANT OF A HOME RULE CHARTER AS JUSTIFICATION FOR
INTERVENTION AT THIS POINT.  HELD:  THE MOTION FOR LEAVE TO INTERVENE
IS DENIED.  PP. 370-375. 

(A)  SINCE PENNSYLVANIA IS A PARTY TO THIS SUIT, WHICH INVOLVES A
MATTER OF ITS SOVEREIGN INTEREST, IT MUST BE DEEMED TO REPRESENT ALL OF
ITS CITIZENS AND CREATURES.  KENTUCKY V. INDIANA, 281 U.S. 163.  PP.
372-373. 

(B)  AN INTERVENOR WHOSE STATE IS ALREADY A PARTY TO AN ORIGINAL
ACTION HAS THE BURDEN OF SHOWING SOME COMPELLING INTEREST IN ITS OWN
RIGHT, APART FROM ITS INTEREST IN A CLASS WITH ALL OTHER CITIZENS AND
CREATURES OF THE STATE, WHICH INTEREST IS NOT PROPERLY REPRESENTED BY
ITS STATE; AND PHILADELPHIA HAS NOT MET THAT BURDEN.  PP. 373-374. 

(C)  THAT PHILADELPHIA NOW HAS A HOME RULE CHARTER AND IS NOW
RESPONSIBLE FOR HER OWN WATER SYSTEM DOES NOT REQUIRE A DIFFERENT
RESULT, SINCE THAT RESPONSIBILITY IS INVARIABLY SERVED BY THE
COMMONWEALTH'S POSITION.  P. 374. 

(D)  THE PRESENCE IN THIS LITIGATION OF NEW YORK CITY, WHICH WAS
JOINED AS A DEFENDANT TO THE ORIGINAL ACTION, IS NOT A SUFFICIENT
JUSTIFICATION FOR PERMITTING THE CITY OF PHILADELPHIA TO INTERVENE. 
PP. 374-375. 

NEW JERSEY V. NEW YORK ET AL. 

ON MOTION OF THE CITY OF PHILADELPHIA FOR LEAVE TO INTERVENE. 

PER CURIAM. 

THE CITY OF PHILADELPHIA HAS MOVED THIS COURT FOR LEAVE TO INTERVENE
IN THIS ORIGINAL ACTION CONCERNING DISTRIBUTION OF DELAWARE RIVER
WATER.  ARGUMENT WAS HEARD ON THE MOTION ON MARCH 9, 1953, WITH ALL
INTERESTED PARTIES APPEARING. 

THE SUIT, ADDRESSED TO THIS COURT'S ORIGINAL JURISDICTION, WAS
BROUGHT BY THE STATE OF NEW JERSEY, IN 1929, AGAINST THE STATE OF NEW
YORK AND THE CITY OF NEW YORK, PRAYING FOR INJUNCTIVE RELIEF AGAINST A
PROPOSED DIVERSION OF DELAWARE RIVER WATER FROM TRIBUTARIES WITHIN THE
STATE OF NEW YORK.  NEW JERSEY JOINED THE CITY OF NEW YORK AS A
DEFENDANT, BECAUSE THE CITY, ACTING UNDER STATE AUTHORITY, WAS PLANNING
THE ACTUAL DIVERSION OF THE WATER FOR ITS USE.  THE COMMONWEALTH OF
PENNSYLVANIA IMMEDIATELY PETITIONED FOR LEAVE TO INTERVENE PRO
INTERESSE SUO.  LEAVE TO INTERVENE WAS GRANTED, UPON CONDITION THAT THE
COMMONWEALTH FILE A STATEMENT OF HER INTEREST IN THE CAUSE AND OF THE
RELIEF, IF ANY, WHICH SHE SOUGHT.  280 U.S. 528.  PENNSYLVANIA FILED
HER STATEMENT OF INTEREST AND RELIEF ON JANUARY 10, 1930, AND
THEREAFTER BECAME AN ACTIVE PARTY IN THE PROCEEDINGS BEFORE THE SPECIAL
MASTER.  IN 1931, THIS COURT CONFIRMED THE SPECIAL MASTER'S REPORT, 283
U.S. 336, AND ENTERED ITS DECREE IN CONFORMITY THEREWITH, 283 U.S.
805. 

THE 1931 DECREE ENJOINED THE STATE OF NEW YORK AND THE CITY OF NEW
YORK FROM DIVERTING FROM THE DELAWARE RIVER OR ITS TRIBUTARIES MORE
THAN 440 MILLION GALLONS DAILY, SUBJECT TO A PRESCRIBED FORMULA FOR THE
RELEASE OF STORAGE WATER DURING PERIODS OF LOW FLOW.  THE DECREE
FURTHER PROVIDED: 

"6.  ANY OF THE PARTIES HERETO, COMPLAINANT, DEFENDANTS OR
INTERVENER, MAY APPLY AT THE FOOT OF THIS DECREE FOR OTHER OR FURTHER
ACTION OR RELIEF AND THIS COURT RETAINS JURISDICTION OF THE SUIT FOR
THE PURPOSE OF ANY ORDER OR DIRECTION OR MODIFICATION OF THIS DECREE,
OR ANY SUPPLEMENTAL DECREE THAT IT MAY DEEM AT ANY TIME TO BE PROPER IN
RELATION TO THE SUBJECT MATTER IN CONTROVERSY."  ID., AT P. 807. 

ON APRIL 1, 1952, THE CITY OF NEW YORK, WITH THE APPROVAL AND SUPPORT
OF THE STATE OF NEW YORK, MOVED UNDER PARAGRAPH 6 OF THE 1931 DECREE
FOR LEAVE TO FILE ITS PETITION TO MODIFY THE DECREE BY PROVIDING FOR
DIVERSION OF ADDITIONAL QUANTITIES OF WATER AND FOR CHANGES IN THE
PRESCRIBED FORMULA FOR RELEASING WATER DURING LOW FLOW.  THE MOTION WAS
GRANTED.  343 U.S. 974.  NEW JERSEY AND PENNSYLVANIA FILED ANSWERS
OPPOSING THE PROPOSED MODIFICATIONS, AND THE WHOLE MATTER WAS REFERRED
TO A SPECIAL MASTER.  IBID. 

ON DECEMBER 13, 1952, THE CITY OF PHILADELPHIA FILED THIS MOTION FOR
LEAVE TO INTERVENE.  THE PETITION ASSERTS PHILADELPHIA'S UNQUESTIONED
INTEREST IN THE USE OF DELAWARE RIVER WATER AND POINTS TO THE RECENT
GRANT OF HER HOME RULE CHARTER AS JUSTIFICATION FOR INTERVENTION AT
THIS POINT.  ALL OF THE PRESENT PARTIES TO THE LITIGATION HAVE FORMALLY
OPPOSED THE MOTION TO INTERVENE ON GROUNDS (1) THAT THE INTERVENTION
WOULD PERMIT A SUIT AGAINST A STATE BY A CITIZEN OF ANOTHER STATE IN
CONTRAVENTION OF THE ELEVENTH AMENDMENT; (2) THAT THE COMMONWEALTH OF
PENNSYLVANIA HAS THE EXCLUSIVE RIGHT TO REPRESENT THE INTEREST OF
PHILADELPHIA AS PARENS PATRIAE; AND (3) THAT INTERVENTION SHOULD BE
DENIED, IN ANY EVENT, AS A MATTER OF SOUND DISCRETION.  PHILADELPHIA
CONTENDS THAT THE MATTER IS ENTIRELY WITHIN THE SOUND DISCRETION OF
THIS COURT, WHICH SHOULD BE EXERCISED AS PRAYED TO ASSURE THAT EVERY
WORTH-WHILE INTEREST IS REPRESENTED IN THE ULTIMATE DECREE. 

THE VIEW WE TAKE OF THE MATTER MAKES IT UNNECESSARY TO DECIDE WHETHER
PHILADELPHIA'S INTERVENTION IN THE PENDING LITIGATION WOULD AMOUNT TO A
"  ...  SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED AGAINST ONE OF
THE UNITED STATES BY CITIZENS OF ANOTHER STATE  ...  " IN VIOLATION OF
THE ELEVENTH AMENDMENT.  FOR THE SAME REASONS, WE ARE NOT CONCERNED
WITH SO MUCH OF THE "PARENS PATRIAE" ARGUMENT AS MAY BE ONLY A
RESTATEMENT OF THE PROPOSITION THAT ORIGINAL JURISDICTION AGAINST A
STATE CAN ONLY BE INVOKED BY ANOTHER STATE ACTING IN ITS SOVEREIGN
CAPACITY ON BEHALF OF ITS CITIZENS.  CF. NEW HAMPSHIRE V. LOUISIANA,
108 U.S. 76 (1883); NORTH DAKOTA V. MINNESOTA, 263 U.S. 365 (1923). 
THE "PARENS PATRIAE" DOCTRINE, HOWEVER, HAS ASPECTS WHICH GO BEYOND
MERE RESTATEMENT OF THE ELEVENTH AMENDMENT; IT IS A RECOGNITION OF THE
PRINCIPLE THAT THE STATE, WHEN A PARTY TO A SUIT INVOLVING A MATTER OF
SOVEREIGN INTEREST, "MUST BE DEEMED TO REPRESENT ALL ITS CITIZENS." 
KENTUCKY V. INDIANA, 281 U.S. 163, 173-174 (1930).  THE PRINCIPLE IS A
NECESSARY RECOGNITION OF SOVEREIGN DIGNITY, AS WELL AS A WORKING RULE
FOR GOOD JUDICIAL ADMINISTRATION.  OTHERWISE, A STATE MIGHT BE
JUDICIALLY IMPEACHED ON MATTERS OF POLICY BY ITS OWN SUBJECTS, AND
THERE WOULD BE NO PRACTICAL LIMITATION ON THE NUMBER OF CITIZENS, AS
SUCH, WHO WOULD BE ENTITLED TO BE MADE PARTIES. 

THE CASE BEFORE US DEMONSTRATES THE WISDOM OF THE RULE.  THE CITY OF
PHILADELPHIA REPRESENTS ONLY A PART OF THE CITIZENS OF PENNSYLVANIA WHO
RESIDE IN THE WATERSHED AREA OF THE DELAWARE RIVER AND ITS TRIBUTARIES
AND DEPEND UPON THOSE WATERS.*  IF WE UNDERTOOK TO EVALUATE ALL THE
SEPARATE INTERESTS WITHIN PENNSYLVANIA, WE COULD, IN EFFECT, BE DRAWN
INTO AN INTRAMURAL DISPUTE OVER THE DISTRIBUTION OF WATER WITHIN THE
COMMONWEALTH.  FURTHERMORE, WE ARE TOLD BY NEW JERSEY THAT THERE ARE
CITIES ALONG THE DELAWARE RIVER IN THAT STATE WHICH, LIKE PHILADELPHIA,
ARE RESPONSIBLE FOR THEIR OWN WATER SYSTEMS, AND WHICH WILL INSIST UPON
A RIGHT TO INTERVENE IF PHILADELPHIA IS ADMITTED.  NOR IS THERE ANY
ASSURANCE THAT THE LIST OF INTERVENORS COULD BE CLOSED WITH POLITICAL
SUBDIVISIONS OF THE STATES.  LARGE INDUSTRIAL PLANTS WHICH, LIKE
CITIES, ARE CORPORATE CREATURES OF THE STATE MAY REPRESENT INTERESTS
JUST AS SUBSTANTIAL. 

*CENSUS FIGURES FOR 1950 SHOW THAT THERE WERE 4,061,420 PENNSYLVANIA
CITIZENS WITHIN THE WATERSHED, OF WHICH, 2,071,605, OR ABOUT HALF, ARE
IN PHILADELPHIA. 

OUR ORIGINAL JURISDICTION SHOULD NOT BE THUS EXPANDED TO THE
DIMENSIONS OF ORDINARY CLASS ACTIONS.  AN INTERVENOR WHOSE STATE IS
ALREADY A PARTY SHOULD HAVE THE BURDEN OF SHOWING SOME COMPELLING
INTEREST IN HIS OWN RIGHT, APART FROM HIS INTEREST IN A CLASS WITH ALL
OTHER CITIZENS AND CREATURES OF THE STATE, WHICH INTEREST IS NOT
PROPERLY REPRESENTED BY THE STATE.  SEE KENTUCKY V. INDIANA, SUPRA.
PHILADELPHIA HAS NOT MET THAT BURDEN AND, THEREFORE, EVEN IF HER
INTERVENTION WOULD NOT AMOUNT TO A SUIT AGAINST A STATE WITHIN THE
PROSCRIPTION OF THE ELEVENTH AMENDMENT (AND WE DO NOT INTEND TO GIVE
ANY BASIS FOR IMPLYING THAT IT DOES), LEAVE TO INTERVENE MUST BE
DENIED. 

PENNSYLVANIA INTERVENED IN 1930, PRO INTERESSE SUO, TO PROTECT THE
RIGHTS AND INTERESTS OF PHILADELPHIA AND EASTERN PENNSYLVANIA IN THE
DELAWARE RIVER.  THE COMMONWEALTH OPPOSED NEW JERSEY'S POSITION BASED
ON COMMON-LAW RIPARIAN RIGHTS, SINCE THAT PROPOSITION THREATENED THE
RIGHT OF PHILADELPHIA AND EASTERN PENNSYLVANIA TO CONTINUE THEIR USE
AND DEVELOPMENT OF THE DELAWARE RIVER AND ITS PENNSYLVANIA
TRIBUTARIES.  PENNSYLVANIA'S POSITION WAS BASED UPON THE DOCTRINE OF
FAIR AND EQUITABLE APPORTIONMENT, AND NEW YORK'S PROPOSED DIVERSION HAD
TO BE RESISTED TO THE EXTENT IT MIGHT AMOUNT TO A DIVERSION OF MORE
THAN A FAIR AND EQUITABLE SHARE.  THIS COURT RECOGNIZED THE PROPRIETY
OF PENNSYLVANIA'S PECULIAR POSITION, BASED ON THE INTERESTS OF ITS
CITIZENS, AND PERMITTED INTERVENTION OVER VIGOROUS OPPOSITION THAT THE
INTERVENOR MUST BE ALIGNED EITHER WITH PLAINTIFF OR DEFENDANT. 

PENNSYLVANIA'S POSITION REMAINS VIGOROUS AND UNCHANGED IN THE FACE OF
THE PETITION FOR ADDITIONAL DIVERSION.  SHE IS OPPOSED TO ANY SUCH
ADDITIONAL DIVERSION NOT JUSTIFIED UNDER THE DOCTRINE OF EQUITABLE
APPORTIONMENT.  COUNSEL FOR THE CITY OF PHILADELPHIA HAVE BEEN UNABLE
TO POINT OUT A SINGLE CONCRETE CONSIDERATION IN RESPECT TO WHICH THE
COMMONWEALTH'S POSITION DOES NOT REPRESENT PHILADELPHIA'S INTERESTS. 
WE DO NOT SEE HOW PHILADELPHIA'S HOME RULE CHARTER CHANGES THE
SITUATION.  THOUGH PHILADELPHIA IS NOW RESPONSIBLE FOR HER OWN WATER
SYSTEM UNDER THE CHARTER, THAT RESPONSIBILITY IS INVARIABLY SERVED BY
THE COMMONWEALTH'S POSITION. 

THE PRESENCE OF NEW YORK CITY IN THIS LITIGATION IS URGED AS A REASON
FOR PERMITTING PHILADELPHIA TO INTERVENE.  BUT THE ARGUMENT
MISCONSTRUES NEW YORK CITY'S POSITION IN THE CASE.  NEW YORK CITY WAS
NOT ADMITTED INTO THIS LITIGATION AS A MATTER OF DISCRETION AT HER
REQUEST.  SHE WAS FORCIBLY JOINED AS A DEFENDANT TO THE ORIGINAL ACTION
SINCE SHE WAS THE AUTHORIZED AGENT FOR THE EXECUTION OF THE SOVEREIGN
POLICY WHICH THREATENED INJURY TO THE CITIZENS OF NEW JERSEY.  BECAUSE
OF THIS POSITION AS A DEFENDANT, SUBORDINATE TO THE PARENT STATE AS THE
PRIMARY DEFENDANT, NEW YORK CITY'S POSITION IN THE CASE RAISES NO
PROBLEMS UNDER THE ELEVENTH AMENDMENT.  WISCONSIN V. ILLINOIS AND
SANITARY DISTRICT OF CHICAGO, 278 U.S. 367 (1929), AND 281 U.S. 179
(1930); CF. GEORGIA V. TENNESSEE COPPER CO., 206 U.S. 230 (1907).  NEW
YORK CITY'S POSITION IS NOT CHANGED BY VIRTUE OF THE FACT THAT SHE IS
PRESENTLY THE MOVING PARTY, SO LONG AS THE MOTION FOR MODIFICATION OF
THE 1931 DECREE COMES WITHIN THE SCOPE OF THE AUTHORIZATION OF
PARAGRAPH 6 OF THAT DECREE. 

THE MOTION FOR LEAVE TO INTERVENE AND FILE AN ANSWER IS, THEREFORE,
DENIED. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

WE DESIRE THE RECORD TO SHOW WHY WE WOULD ALLOW PHILADELPHIA TO
INTERVENE IN THIS CASE. 

THE CITY, OF COURSE, IS NOT AN INDISPENSABLE PARTY, AND IT IS
GENERALLY BAD POLICY TO ENCUMBER ANY CASE WITH UNNECESSARY
INTERVENORS.  WE HAVE NO DOUBT WHATEVER THAT COUNSEL FOR THE
COMMONWEALTH WILL FAITHFULLY AND ABLY REPRESENT THE INTERESTS OF ALL OF
ITS INHABITANTS, INCLUDING THOSE OF PHILADELPHIA.  NONETHELESS, WE
WOULD ALLOW THE INTERVENTION BECAUSE OF CIRCUMSTANCES PECULIAR TO THIS
CASE. 

WE DO NOT WRITE TODAY UPON A CLEAN SLATE.  NEW YORK CITY, AS WELL AS
NEW YORK STATE, IS A PARTY TO THIS ACTION.  IT IS TRUE THAT THE CITY
WAS MADE A DEFENDANT IN THE ORIGINAL CASE.  BUT THAT CASE WAS LONG AGO
DECIDED.  NEW YORK CITY IS THE MOVING PARTY NOW, IN REOPENING THE
DECREE.  THE INTERESTS OF MUNICIPALITY AND STATE ARE NO MORE SEPARATE
IN THE CASE OF NEW YORK THAN OF PHILADELPHIA.  BOTH CITIES HAVE HOME
RULE POWERS AND VITAL INTERESTS IN THIS LITIGATION.  NEW YORK CITY IS
THE REAL PARTY IN INTEREST IN THE CURRENT APPLICATION FOR MODIFICATION
OF AN EXISTING DECREE AND IT IS IN A POSITION TO PRESENT ITS OWN
CLAIMS.  WE WOULD ALLOW PHILADELPHIA'S MOTION TO PRESENT ANY PROPER
EVIDENCE THAT IT DEEMS PROTECTIVE OF ITS INTEREST.  THIS WOULD NOT BE
MERELY A FAVOR TO THAT CITY.  IT WOULD ALSO PROTECT THE POSITION OF
THIS COURT IF THE MASTER SHOULD REPORT IN FAVOR OF NEW YORK, AND
PHILADELPHIA, WITH THE WISDOM THAT COMES FROM HINDSIGHT, SHOULD ASK TO
OPPOSE CONFIRMATION UPON THE GROUND THAT ITS INTERESTS HAD NOT HAD FULL
CONSIDERATION. 

IT IS OBJECTED THAT, IF PHILADELPHIA IS ADMITTED, OTHER
MUNICIPALITIES MAY APPLY.  THAT MAY BE SO. WE ARE NOT BELIEVERS IN TOWN
MEETING LAWSUITS.  BUT CERTAINLY FEW OTHERS COULD SHOW COMPARABLE HOME
RULE POWER AND MAGNITUDE OF INTEREST, AND WE MUST NOT FORGET THAT THIS
IS NO ORDINARY LAWSUIT.  IT MAY HAVE GRAVE CONSEQUENCES UPON ONE OR THE
OTHER OR BOTH MUNICIPALITIES.  SINCE THE COURT IS HEARING ONE OF THEM,
WE WOULD BEAR WITH SOME INCONVENIENCE RATHER THAN HAVE THE OTHER
AGGRIEVED FROM THE BEGINNING BY BEING SHUT OUT. 
..END :





BALTIMORE & OHIO RAILROAD CO. V. UNITED STATES 345 U.S. 146 


NO. 258.  ARGUED JANUARY 7, 1953 - DECIDED MARCH 16, 1953 - 105 F. SUPP.
631, AFFIRMED. 


APPELLANT RAILROADS SUED TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION PRESCRIBING MAXIMUM CARLOAD RATES FOR CARRYING
CERTAIN KINDS OF FRESH VEGETABLES - ON THE GROUND THAT THEY WERE
"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 INTO EFFECT, THE RATES WOULD PRODUCE LESS MONEY THAN IT
WOULD COST THE RAILROADS TO CARRY THE PARTICULAR VEGETABLES COVERED BY
EACH RATE.  HELD:  THE SUIT WAS PROPERLY DISMISSED.  PP. 147-150. 

(A)  NORTHERN PACIFIC R. CO. V. NORTH DAKOTA, 236 U.S. 585, AND
NORFOLK & W.R. CO. V. WEST VIRGINIA, 236 U.S. 605, DISTINGUISHED.  PP.
148-149. 

(B)  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 FIXING NONCOMPENSATORY RATES FOR
CARRYING SOME COMMODITIES WHEN THE PUBLIC INTEREST IS THEREBY SERVED. 
P. 150. 

BALTIMORE & OHIO RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

THE DISTRICT COURT DISMISSED A SUIT TO SET ASIDE A RATE ORDER OF THE
INTERSTATE COMMERCE COMMISSION.  105 F. SUPP. 631.  ON APPEAL TO THIS
COURT, AFFIRMED, P. 150. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

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.  (FN1) 

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. 

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."  (FN2)  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, AND A COMPANION CASE DECIDED THE
SAME DAY, NORFOLK & W.R. CO. V. WEST VIRGINIA, 236 U.S. 605.  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. 

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.  (FN3)  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
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. 

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; THE NEW ENGLAND DIVISIONS CASE,
261 U.S. 184; RAILROAD COMMISSION OF WISCONSIN V. CHICAGO, B.&Q.R. CO.,
257 U.S. 563, 583-586.  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.  AFFIRMED. 

FN1  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, 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.  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. 

FN2  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." 

FN3  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. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

BALTIMORE & OHIO R. CO. V. UNITED STATES, 298 U.S. 349, 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., P. 381.  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. 

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. 

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? 

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. 

THERE IS NO SUGGESTION OR INTIMATION THAT THE VEGETABLE MARKETS WERE
SUFFERING BY REASON OF THE TEXAS RATES. 

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 SEC. 3 OF THE INTERSTATE COMMERCE ACT.  49
U.S.C. SEC. 3. 

THE COMMISSION DID, HOWEVER, FIND THAT THE TEXAS RATES WERE
UNREASONABLE; AND IT PROCEEDED TO PRESCRIBE "REASONABLE" RATES PURSUANT
TO SEC. 15(1) OF THE ACT. 

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 RATE-MAKING, REVIEWED IN NORTHERN
PACIFIC R. CO. V. NORTH DAKOTA, 236 U.S. 585, 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. 

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." 
..END :

















UNITED STATES, CHAPMAN V. FEDERAL POWER COMMISSION 345 U.S. 153 


NO. 28.  ARGUED OCTOBER 22, 1952 - DECIDED MARCH 16, 1953 - 191 F.2D
796, AFFIRMED. 


THE CORPS OF ENGINEERS RECOMMENDED TO CONGRESS A COMPREHENSIVE PLAN
FOR THE DEVELOPMENT OF THE ROANOKE RIVER BASIN FOR FLOOD-CONTROL,
POWER, AND OTHER PURPOSES; BUT IT DID NOT CLEARLY RECOMMEND THAT ALL
PROJECTS BE CONSTRUCTED BY THE UNITED STATES.  THE FEDERAL POWER
COMMISSION CONCURRED IN THIS RECOMMENDATION.  IN THE FLOOD CONTROL ACT
OF 1944, CONGRESS APPROVED THE PLAN AND SPECIFICALLY AUTHORIZED TWO
PROJECTS NOT AT ROANOKE RAPIDS.  SUBSEQUENTLY, THE COMMISSION ORDERED
ISSUANCE OF A LICENSE TO A PRIVATE POWER COMPANY TO CONSTRUCT A
HYDROELECTRIC GENERATING PLANT AT ROANOKE RAPIDS, N.C.  HELD: 

1.  PETITIONERS, THE SECRETARY OF THE INTERIOR AND AN ASSOCIATION OF
NONPROFIT RURAL ELECTRIC COOPERATIVES, HAD STANDING TO INSTITUTE THIS
PROCEEDING UNDER SEC. 313(B) OF THE FEDERAL POWER ACT TO SET ASIDE THE
COMMISSION'S ORDER.  PP. 154-156. 

2.  CONGRESS HAS NOT WITHDRAWN, AS TO THE ROANOKE RAPIDS SITE, THE
JURISDICTION OF THE FEDERAL POWER COMMISSION TO ISSUE SUCH A LICENSE. 
PP. 156-172. 

3.  UNDER SEC. 7(B) OF THE FEDERAL POWER ACT, THE COMMISSION'S
CONCURRENCE IN THE RECOMMENDATION OF THE CORPS OF ENGINEERS DID NOT
PRECLUDE THE COMMISSION FROM ISSUING SUCH A LICENSE.  PP. 172-174. 

UNITED STATES EX REL. CHAPMAN, SECRETARY OF THE INTERIOR, V. FEDERAL
POWER COMMISSION ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT.* 

*TOGETHER WITH NO. 29, VIRGINIA REA ASSOCIATION ET AL. V. FEDERAL
POWER COMMISSION ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

THE FEDERAL POWER COMMISSION ORDERED ISSUANCE OF A LICENSE TO A
PRIVATE POWER COMPANY TO CONSTRUCT A HYDROELECTRIC GENERATING PLANT AT
ROANOKE RAPIDS, N.C.  87 P.U.R. (N.S.)  469.  THE COURT OF APPEALS
DENIED A PETITION TO SET ASIDE THIS ORDER.  191 F.2D 796.  THIS COURT
GRANTED CERTIORARI.  343 U.S. 941.  AFFIRMED, P. 174. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

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
SEC. 7(B) OF THE FEDERAL POWER ACT, 41 STAT. 1067, AS AMENDED, 49 STAT.
842, 16 U.S.C. SEC. 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'N, 191 F.2D
796.  WE GRANTED CERTIORARI, 343 U.S. 941.  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
HYDRO-ELECTRIC POWER.  CF. RULES SUP. CT. 38 (5)(B). 

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; SEC. 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. SEC. 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 SEC. 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. 
RESPONDENT SAYS, 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. 

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
SPECIALITY 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. 

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. 

IN 1927, THE ARMY ENGINEERS WERE AUTHORIZED TO MAKE A SPECIFIC SURVEY
OF THE ROANOKE RIVER BY SEC. 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 IMPROVEMENTS 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 "THERE IS NO JUSTIFICATION
FOR ANY FEDERAL EXPENDITURES FOR EITHER FLOOD CONTROL OR POWER."  ID.,
AT 53; CF. ID., AT 14-15. 

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. SEC. 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."  (FN1) SEC. 7,
ACT OF 1936, 49 STAT. 1596.  IN SEC. 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. 

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. 

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. 

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
PERCENT OF THE FLOOD LOSSES TO THE TWO MAIN FLOOD-DAMAGE AREAS 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 REGULATIONS, WHILE AT THE OTHER NINE SITES, WITH ONE MINOR
EXCEPTION, THERE WERE SIMPLY TO BE POWER PROJECTS. 

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.    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.    THE PROPOSAL WAS ACCEPTED, AND SEC. 10 OF
THE ACT CONTAINS A CORRESPONDING PROVISION.  IT PROVIDES THAT "THE
FOLLOWING WORKS OF IMPROVEMENT  ...  ARE HEREBY ADOPTED AND
AUTHORIZED."  INCLUDING 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."  (FN2) 

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. 

A SEPARATE ARGUMENT OF PETITIONERS IS BASED IN PART ON THE LANGUAGE
OF A PRIVISO COMMONLY INSERTED IN AUTHORIZATIONS FOR FLOOD-CONTROL
SURVEYS, (FN3) 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 MORE
(FN4) 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 FUNCTIONS.  (FN5)  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. 

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 ROANKOE
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, "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.  (FN6) 

RESPONDENTS FURTHER POINT OUT THAT AT THE SAME TIME HEARINGS WERE
HELD ON THE HARTWELL 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. 

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 COOP.  V. POWER
COMM'N, 328 U.S. 152, 180, 181, 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 FULL-TIME COMMISSIONERS.  46 STAT. 797, 16 U.S.C.
SEC. 792.  THESE ENACTMENTS EXPRESSED GENERAL POLICIES AND GRANTED
BROAD 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. SEC.
797; 3 REPORT OF THE PRESIDENT'S WATER RESOURCES POLICY COMM'N 501
(1950). 

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. SEC.
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. SEC. 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. 

OF COURSE, IT IS NOT FOR US TO INTIMATE A PREFERENCE BETWEEN PRIVATE
OF 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. SEC. 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.    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, PP. 157-158, 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
SEC. 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. 

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. 

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.  (FN7)  ID., AT 477-478. 

FINALLY, WE DO NOT FIND MERIT IN THE CONTENTION THAT THE COMMISSION
WAS REQUIRED BY SEC. 7(B) OF THE FEDERAL POWER ACT TO RECOMMEND PUBLIC
CONSTRUCTION OF THE PROJECT.  (FN8)  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 SEC. 7(B). 
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 SEC. 7(B) MUST REMAIN WITH THE
COMMISSION; WE CANNOT INFER A JUDGMENT OF THE COMMISSION THAT IT NEVER
EXPRESSED AND NOW SPECIFICALLY DISAVOWS. 

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.  AFFIRMED. 

FN1  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. 

FN2  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. 

FN3  SEE, E.G., SEC. 6 OF THE FLOOD CONTROL ACT OF 1936, QUOTED P.
158, SUPRA. 

FN4  THERE IS LITTLE FORCE IN THE ARGUMENT THAT THE WORDS "ADOPTED
AND AUTHORIZED" IN SEC. 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 SEC. 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. 

FN5  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. 

FN6  THE GENERAL ENACTING PROVISION, SEC. 204, 64 STAT. 170, IS
SUBSTANTIALLY THE SAME AS SEC. 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. 

FN7  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 SEC. 10(F) OF THE
FEDERAL POWER ACT, 41 STAT. 1070, AS AMENDED, 49 STAT. 843, 16 U.S.C.
SEC. 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, "THE 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. 

FN8  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." 

MR. JUSTICE CLARK, CONCURRING. 

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. 

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.  (FN1)  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 SEC. 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 HAD NOT REGARDED THE 1944
APPROVAL AS PRECLUDING SUCH PRIVATE LICENSING.  (FN2)  I WOULD AFFIRM
ON THE BASIS OF THIS ADMINISTRATIVE INTERPRETATION BY TWO AGENCIES
CHARGED BY CONGRESS WITH DIRECT FLOOD CONTROL AND POWER LICENSING
RESPONSIBILITIES.    FN1  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.
1029, 1038), AS RECOMMENDED IN HOUSE RIVERS AND HARBORS COMMITTEE
DOCUMENT NO. 50, 74TH CONG., 1ST SESS.  LICENSE ISSUED TO ST. ANTHONY'S
FALLS WATER POWER CO., AUGUST 31, 1951, PROJECT NO. 2056, TO USE WATER
FROM UNITED STATES NAVIGATION DAM AT ST. ANTHONY'S 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
CONG., 1ST SESS. TWO LICENSES ISSUED IN 1934 AND 1936 TO KANAWHA VALLEY
POWER CO., PROJECT 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. 

FN2  "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 HOUSE COMMITTEE ON PUBLIC WORKS ON H.R. 5472 (TIT.
II), 81ST CONG., 1ST SESS. 144. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BLACK CONCUR, DISSENTING. 

ROANOKE RAPIDS IS A POWER SITE BELONGING TO THE FEDERAL GOVERNMENT
AND NOW SURRENDERED TO PRIVATE POWER INTERESTS UNDER CIRCUMSTANCES THAT
DEMAND A DISSENT. 

ROANOKE RAPIDS IS A PART OF THE PUBLIC DOMAIN. 

(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; OKLAHOMA V. ATKINSON CO., 313
U.S. 508, 525. 

(2)  THE WATER POWER INHERENT IN THE FLOW OF A NAVIGABLE STREAM
BELONGS TO THE FEDERAL GOVERNMENT.   UNITED STATES V. APPALACHIAN POWER
CO., SUPRA, AT 424. 

(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; UNITED STATES V. COMMODORE PARK,
324 U.S. 386, 390. 

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. 

THESE FACTS MUST BE KEPT IN MIND IN READING SEC. 10 OF THE FLOOD
CONTROL ACT OF 1944, 58 STAT. 887, 891.  (FN1)  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. 

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. 

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. 

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
RAONOKE RIVER BASIN, AUTHORIZES THE CONSTRUCTION OF THE BUGGS ISLAND
RESERVOIR ON THE ROANOKE RIVER AND THE PHILPOTT RESERVOIR ON THE SMITH
RIVER. 

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: 

"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. 

"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." 

THIS STATEMENT HIGHLIGHTS THE MEANING OF "PUBLIC WORKS" AS USED IN
SEC. 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. 

THE ARGUMENT THAT WHEN CONGRESS BY SEC. 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 DISTINCITION WITHOUT ANY RATIONAL BASIS.  THE
"WORKS OF IMPROVEMENT" WHICH ARE "ADOPTED AND AUTHORIZED" BY SEC. 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 SEC. 10 INCLUDE A VARIETY OF UNDERTAKINGS, NOT MERELY
WORKS OF CONSTRUCTION WHICH ARE FIRST STEPS IN GENERAL COMPREHENSIVE
PLANS BEING ADOPTED AND AUTHORIZED. 

FROM THIS IT SEEMS ALMOST TOO PLAIN FOR ARGUMENT THAT CONGRESS, IN
APPROVING THE PLANS 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.  (FN2)  IN THIS
SETTING "APPROVAL" BY CONGRESS MEANT A DEDICATION OF THE PROJECTS FOR
PUBLIC DEVELOPMENT.  (FN3) 

IF THAT VIEW IS NOT TAKEN, THEN 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. 

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. 

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.  THIS IS EVIDENCE THAT THIS ENERGY WILL HAVE A VALUE IN
EXCESS OF $700,000 A YEAR.  (FN4) 

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 INTEREST
WILL TAKE THE PLUMS - THE CHOICE ONES. 

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 IT APPROVED AS "PUBLIC WORKS" PROJECTS IT DEDICATED
TO THE GOOD OF ALL THE PEOPLE. 

FN1  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 OF 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
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." 

FN2  CONGRESSMAN CURTIS, ONE OF THE HOUSE CONFEREES, EXPLAINED THE
SAME LANGUAGE IN SEC.  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." 

FN3  THE INTERPRETATIONS 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,
SEC. 1(A) OF THE ACT OF DECEMBER 22, 1944, 58 STAT. 887, ADOPTING AND
AUTHORIZING THE ROANOKE RIVER BASIN PLAN; 33 U.S.C. SEC. 701-1(A). 
CONGRESS ALONE MAKES POLICY DECISIONS AFFECTING THE PUBLIC DOMAIN. 

FN4  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. 
..END :





















ORVIS V. BROWNELL 345 U.S. 183 


NO. 404.  ARGUED FEBRUARY 4, 1953 - DECIDED MARCH 16, 1953 - 198 F.2D
708, AFFIRMED. 


AFTER EXECUTIVE ORDER NO. 8389, ISSUED PURSUANT TO THE TRADING WITH
THE ENEMY ACT, BECAME EFFECTIVE AS TO JAPAN, BLOCKING ALL TRANSFERS OF
EVIDENCES OF DEBT OR INTERESTS IN PROPERTY OF JAPANESE CITIZENS,
PETITIONERS COMMENCED A SUIT IN A NEW YORK STATE COURT AGAINST JAPANESE
DEBTORS.  WITHOUT OBTAINING A LICENSE THEREFOR, PETITIONERS ATTACHED A
CREDIT OWED THE JAPANESE DEBTORS BY A THIRD PARTY, AND OBTAINED
JUDGMENT.  THEREAFTER THE CUSTODIAN VESTED THE CREDIT BY A RES VESTING
ORDER AND IT WAS PAID OVER TO THE CUSTODIAN.  HELD:  BY THEIR
UNLICENSED ATTACHMENT, PETITIONERS OBTAINED NO "INTEREST, RIGHT, OR
TITLE" RECOVERABLE AGAINST THE CUSTODIAN IN A PROCEEDING UNDER SEC.
9(A) OF THE ACT.  PP. 184-189. 

(A)  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 SEC. 9(A). 
PP. 186-189. 

(B)  THE CUSTODIAN MAY PROCEED TO ADMINISTER THE VESTED ASSETS
ACCORDING TO SEC. 34 OF THE ACT AND TO CONSIDER PETITIONERS' CLAIM AND
ITS STATUS THEREUNDER, SUBJECT TO THE REVIEW THEREIN PROVIDED.  PP. 188
189. 

ORVIS ET AL. V. BROWNELL, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN
PROPERTY CUSTODIAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE DISTRICT COURT GRANTED PETITIONERS' MOTION FOR JUDGMENT ON THE
PLEADINGS IN A SUIT AGAINST THE CUSTODIAN UNDER SEC. 9(A) OF THE
TRADING WITH THE ENEMY ACT.  THE COURT OF APPEALS REVERSED.  198 F.2D
708.  THIS COURT GRANTED CERTIORARI.  344 U.S. 902.  AT THE TIME OF THE
ARGUMENT, FEBRUARY 4, 1953, BROWNELL, PRESENT ATTORNEY GENERAL, WAS
SUBSTITUTED AS RESPONDENT FOR MCGRANERY, FORMER ATTORNEY GENERAL. 
AFFIRMED, P. 189. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS SUIT, UNDER SEC. 9(A) OF THE TRADING WITH THE ENEMY ACT, (FN1)
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 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. 

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 SEC.
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 SEC. 9(A), BASED ON
INTEREST IN PROPERTY, BUT WAS LEFT AND STILL IS PENDING AS A CLAIM FOR
PAYMENT OF A DEBT UNDER SEC. 34 OF THE ACT. 

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 SEC. 9(A), THE
JUDGMENT WILL BE PAID IN FULL.  ON THE OTHER HAND, IF IT IS ONLY AN
ALLOWABLE DEBT UNDER SEC. 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. 

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.  (FN2)  WE GRANTED CERTIORARI.  (FN3) 

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, 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 SEC.  9(A) OF THE ACT.  (FN4)  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. 

THE ORDER FORBIDS "TRANSFERS OF CREDIT" AND "TRANSFERS OF ANY
EVIDENCES OF INDEBTEDNESS OR EVIDENCES OF OWNERSHIP OF PROPERTY," AND
GENERAL RULING NO. 12 (FN5) 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. 

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.  (FN6)  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, 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 SEC. 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 SEC. 9. 

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. 

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 SEC. 9, AND, IF SO,
WHETHER THEY WERE PROPERLY ALLOWED BY THE CUSTODIAN. 

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 SEC. 34 OF THE
ACT AND TO CONSIDER PETITIONERS' CLAIM AND ITS STATUS THEREUNDER,
SUBJECT TO THE REVIEW THEREIN PROVIDED.  THE SUIT UNDER SEC. 9(A),
HOWEVER, MUST FAIL.  JUDGMENT AFFIRMED. 

FN1  50 U.S.C. APP. SEC. 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  ...  ." 

FN2  198 F.2D 708. 

FN3  344 U.S. 902. 

FN4  EXECUTIVE ORDER NO. 8389, APRIL 10, 1940, 5 FED. REG. 1400, AS
AMENDED BY EXECUTIVE ORDER NO. 8785, JUNE 14, 1941, 6 FED. REG. 2897:
"  ...  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  ...  ." 

FN5  GENERAL RULING NO. 12, APRIL 21, 1942, SEC. 131.12(E)(1), 7 FED.
REG. 2991:  "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  ...  ." 

FN6  50 U.S.C. APP. SEC. 5(B)(B):  "  ...  THE 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  ...  ." 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING. 

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 SEC. 34(G).  (FN1)  BUT, UNLIKE SEC. 60 OF THE
BANKRUPTCY ACT (52 STAT.  869), 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; (FN2) 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 SEC. 34(I) WAS DESIGNED TO GIVE SECURED CREDITORS AND CREDITORS
CLAIMING A LIEN: 

"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 SEC.  9(A) FOR RECOVERY OF A PROPERTY INTEREST (SEE
MARKHAM V. CABELL, 326 U.S. 404; CLARK V. UEBERSEE FINANZ-KORP., 332
U.S. 480), OR UNDER SEC. 34 FOR RECOVERY OF A DEBT, OR BOTH.    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; LYON
V. SINGER, 339 U.S. 841; ZITTMAN V. MCGRATH, 341 U.S. 471.  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. 

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, "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, AT 465, SHOULD HAVE BEEN MADE THE LAW THEN
RATHER THAN NOW. 

FN1  "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 U.S.C.  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." 

FN2  "  ...  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." 
..END :

















LOCAL UNION NO. 10, UNITED ASSOCIATION OF JOURNEYMEN PLUMBERS &
STEAMFITTERS V. GRAHAM, TRADING AS GRAHAM BROTHERS 345 U.S. 192 


NO. 86.  ARGUED DECEMBER 8, 1952 - DECIDED MARCH 16, 1953 - AFFIRMED. 


THE VIRGINIA RIGHT TO WORK STATUTE, AS CONSTRUED BY THE HIGHEST COURT
OF THAT STATE, PROVIDES IN SUBSTANCE THAT NEITHER MEMBERSHIP NOR
NONMEMBERSHIP IN A LABOR UNION SHALL BE MADE A CONDITION OF EMPLOYMENT
AND THAT A CONTRACT LIMITING EMPLOYMENT TO UNION MEMBERS IS AGAINST
PUBLIC POLICY.  HELD:

1.  A VIRGINIA STATE COURT INJUNCTION AGAINST PEACEFUL PICKETING
WHICH IS CARRIED ON FOR PURPOSES IN CONFLICT WITH THE STATUTE DOES NOT
VIOLATE THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION.  PP. 193
201. 

2.  THERE WAS A REASONABLE BASIS IN THE EVIDENCE IN THIS CASE FOR THE
STATE COURT'S FINDING THAT THE PICKETING WAS FOR A PURPOSE IN CONFLICT
WITH THE STATUTE, SINCE THE IMMEDIATE RESULTS OF THE PICKETING
DEMONSTRATED ITS POTENTIAL EFFECTIVENESS 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.  PP. 197-201. 

LOCAL UNION NO. 10, UNITED ASSOCIATION OF JOURNEYMEN PLUMBERS &
STEAMFITTERS, ET AL. V. GRAHAM ET AL., TRADING AS GRAHAM BROTHERS. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

A VIRGINIA STATE COURT ISSUED A PERMANENT INJUNCTION AGAINST
PICKETING BY PETITIONERS WHICH WAS FOUND TO BE FOR A PURPOSE IN
CONFLICT WITH THE VIRGINIA RIGHT TO WORK STATUTE.  THE SUPREME COURT OF
APPEALS REFUSED TO HEAR AN APPEAL, AND IN EFFECT AFFIRMED THE DECREE. 
THIS COURT GRANTED CERTIORARI.  344 U.S. 811.  AFFIRMED, P. 201. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

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.  (FN1)  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. 

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.  (FN2)  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: 

"IT 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; ...  ."  (FN3) 

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.  RESPONDENTS FILED NO BRIEF HERE OTHER THAN THAT IN OPPOSITION TO
THE PETITION FOR CERTIORARI AND SUBMITTED THEIR CASE WITHOUT ORAL
ARGUMENT. 

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. ROUNDTREE 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. 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; LINCOLN UNION V. NORTHWESTERN CO., 335
U.S. 525. 

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. 

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.  (FN4)  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.  (FN5) 

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. 

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. 

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 STANDSTILL.  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." 

THE POLICY OF VIRGINIA WHICH IS EXPRESSED IN ITS RIGHT TO WORK
STATUTE IS SUMMARIZED AS FOLLOWS BY ITS HIGHEST COURT: 

"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. 

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. 

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; TEAMSTERS UNION V. HANKE, 339 U.S. 470; HUGHES V. SUPERIOR COURT,
339 U.S. 460; GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490; THOMAS V.
COLLINS, 323 U.S. 516, 537-538, AND 543-544 (CONCURRING OPINION);
BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769, 776-777 (CONCURRING
OPINION); CARPENTERS UNION V. RITTER'S CAFE, 315 U.S. 722; CARLSON V.
CALIFORNIA, 310 U.S. 106; THORNHILL V. ALABAMA, 310 U.S. 88, 103-104;
SENN V. TILE LAYERS UNION, 301 U.S. 468, 479-481.  SEE ALSO, ELECTRICAL
WORKERS V. LABOR BOARD, 341 U.S. 694, 705. 

THE JUDGMENT OF THE SUPREME COURT OF APPEALS OF VIRGINIA ACCORDINGLY
IS AFFIRMED. 

FN1  "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, SECS. 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) SEC. 164(B). 

FN2  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. 

FN3  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. 

FN4  "  ...  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."  DRIVERS UNION V. MEADOWMOOR DAIRIES, 312 U.S.
287, 293, 294. 

FN5  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, HADN'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.'" 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

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; BUILDING
SERVICE UNION V. GAZZAM, 339 U.S. 532.  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. 

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. ALABAMA, 310 U.S.
88.  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 TEAMSTERS UNION V. HANKE, 339 U.S. 470, 481, 482, 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.  (FN1) 

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. 

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.  (FN2)  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. ALABAMA, SUPRA, AT 105, 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, AT 541.  (FN3)  IT IS A BROADSIDE AGAINST ALL PICKETING, THE
KIND OF GENERAL ASSAULT CONDEMNED BY THORNHILL V. 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. 

FN1  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 DRIVERS LOCAL V. WOHL, 315 U.S. 769, 775-777;
THOMAS V. COLLINS, 323 U.S. 516, 543-544. 

FN2  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 HE? 

"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." 

FN3  SEE ALSO HUGHES V. SUPERIOR COURT, 339 U.S. 460, 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 EMPLOYEES' LOCAL V. WISCONSIN BOARD, 315 U.S. 437, 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. 
..END :























SHAUGHNESSY V. UNITED STATES, MEZEI 345 U.S. 206 


NO. 139.  ARGUED JANUARY 7-8, 1953 - DECIDED MARCH 16, 1953 - 195 F.2D
964, REVERSED. 


AN ALIEN RESIDENT OF THE UNITED STATES TRAVELED ABROAD AND REMAINED IN
HUNGARY FOR 19 MONTHS.  ON HIS RETURN TO THIS COUNTRY, THE ATTORNEY
GENERAL, ACTING PURSUANT TO 22 U.S.C.  SEC. 223 AND REGULATIONS
THEREUNDER, ORDERED HIM PERMANENTLY EXCLUDED WITHOUT A HEARING.  THE
ORDER WAS BASED ON "INFORMATION OF A CONFIDENTIAL NATURE, THE
DISCLOSURE OF WHICH WOULD BE PREJUDICIAL TO THE PUBLIC INTEREST," AND
ON A FINDING THAT THE ALIEN'S ENTRY WOULD BE PREJUDICIAL TO THE PUBLIC
INTEREST FOR SECURITY REASONS.  BECAUSE OTHER NATIONS REFUSED TO ACCEPT
HIM, HIS EXCLUSION AT ELLIS ISLAND WAS CONTINUED FOR 21 MONTHS.  A
FEDERAL DISTRICT COURT IN HABEAS CORPUS PROCEEDINGS THEN DIRECTED HIS
CONDITIONAL PAROLE INTO THE UNITED STATES ON BOND.  HELD:  THE ATTORNEY
GENERAL'S CONTINUED EXCLUSION OF THE ALIEN WITHOUT A HEARING DOES NOT
AMOUNT TO AN UNLAWFUL DETENTION, AND COURTS MAY NOT TEMPORARILY ADMIT
HIM TO THE UNITED STATES PENDING ARRANGEMENTS FOR HIS DEPARTURE
ABROAD.  PP. 207-216. 

(A)  IN EXCLUSION CASES, THE COURTS CANNOT RETRY THE ATTORNEY
GENERAL'S STATUTORY DETERMINATION THAT AN ALIEN'S ENTRY WOULD BE
PREJUDICIAL TO THE PUBLIC INTEREST.  PP. 210-212. 

(B)  NEITHER AN ALIEN'S HARBORAGE ON ELLIS ISLAND NOR HIS PRIOR
RESIDENCE IN THIS COUNTRY TRANSFORMS THE ADMINISTRATIVE PROCEEDING
AGAINST HIM INTO SOMETHING OTHER THAN AN EXCLUSION PROCEEDING; AND HE
MAY BE EXCLUDED IF UNQUALIFIED FOR ADMISSION UNDER EXISTING IMMIGRATION
LAWS.  P. 213. 

(C)  ALTHOUGH A LAWFULLY RESIDENT ALIEN MAY NOT CAPTIOUSLY BE
DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS, THE ALIEN IN THIS
CASE IS AN ENTRANT ALIEN OR "ASSIMILATED TO THAT STATUS" FOR
CONSTITUTIONAL PURPOSES.  KWONG HAI CHEW V. COLDING, 344 U.S. 590,
DISTINGUISHED.  PP. 213-214. 

(D)  THE ATTORNEY GENERAL THEREFORE MAY EXCLUDE THIS ALIEN WITHOUT A
HEARING, AS AUTHORIZED BY THE EMERGENCY REGULATIONS PROMULGATED
PURSUANT TO THE PASSPORT ACT, AND NEED NOT DISCLOSE THE EVIDENCE UPON
WHICH THAT DETERMINATION RESTS.  PP. 214-215. 

(E)  THE ALIEN'S CONTINUED EXCLUSION ON ELLIS ISLAND DOES NOT DEPRIVE
HIM OF ANY STATUTORY OR CONSTITUTIONAL RIGHT.  PP. 215-216. 

(F)  THE ALIEN'S RIGHT TO ENTER THE UNITED STATES DEPENDS ON THE
CONGRESSIONAL WILL, AND THE COURTS CANNOT SUBSTITUTE THEIR JUDGMENT FOR
THE LEGISLATIVE MANDATE.  P. 216. 

SHAUGHNESSY, DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION, V.
UNITED STATES EX REL.  MEZEI. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING, THE FEDERAL DISTRICT COURT AUTHORIZED
THE TEMPORARY ADMISSION OF AN ALIEN TO THIS COUNTRY ON $5,000 BOND. 
101 F. SUPP. 66.  THE COURT OF APPEALS AFFIRMED THAT ACTION, BUT
DIRECTED RECONSIDERATION OF THE TERMS OF THE PAROLE.  195 F.2D 964. 
THIS COURT GRANTED CERTIORARI.  344 U.S. 809.  REVERSED, P. 216. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

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.  (FN1)
THE COURT OF APPEALS AFFIRMED THAT ACTION, BUT DIRECTED RECONSIDERATION
OF THE TERMS OF THE PAROLE.  (FN2)  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. 

RESPONDENT'S PRESENT DILEMMA SPRINGS FROM THESE CIRCUMSTANCES:
THOUGH, AS THE DISTRICT COURT OBSERVED, "THERE 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.  (FN3) 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 HIS 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. 

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.  (FN4)
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.  (FN5)  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."  (FN6) 

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, 130 U.S. 581 (1889); FONG YUE TING V. UNITED STATES,
149 U.S. 698 (1893); KNAUFF V. SHAUGHNESSY, 338 U.S. 537 (1950);
HARISIADES V. SHAUGHNESSY, 342 U.S. 580 (1952).  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 INTERESTS OF THE UNITED STATES." 
(FN7)  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.  (FN8)  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. 

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, 189 U.S. 86, 100-101 (1903); WONG YANG
SUNG V. MCGRATH, 339 U.S. 33, 49-50 (1950); KWONG HAI CHEW V. COLDING,
344 U.S. 590, 598 (1953).  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."  KNAUFF V. SHAUGHNESSY, SUPRA, AT 544; EKIU V. UNITED
STATES, 142 U.S. 651, 660 (1892).  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." 
KNAUFF V. SHAUGHNESSY, SUPRA, AT 543; EKIU V. UNITED STATES, SUPRA, AT
660.  IN A CASE SUCH AS THIS, COURTS CANNOT RETRY THE DETERMINATION OF
THE ATTORNEY GENERAL.  KNAUFF V. SHAUGHNESSY, SUPRA, AT 546; LUDECKE V.
WATKINS, 335 U.S. 160, 171-172 (1948). 

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, EKIU V. UNITED STATES, SUPRA, OR REMAINS CONTINUOUSLY ABOARD
SHIP.  UNITED STATES V. JUNG AH LUNG, 124 U.S. 621, 626 (1888); CHIN
YOW V. UNITED STATES, 208 U.S. 8, 12 (1908).  IN SUM, HARBORAGE AT
ELLIS ISLAND IS NOT AN ENTRY INTO THE UNITED STATES.  KAPLAN V. TOD,
267 U.S. 228, 230 (1925); UNITED STATES V. JU TOY, 198 U.S. 253, 263
(1905); EKIU V. UNITED STATES, SUPRA, AT 661.  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, 158 U.S. 538, 547-548 (1895); POLYMERIS V. TRUDELL, 284
U.S. 279 (1932). 

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, 344 U.S. 590, 601 (1953); CF. DELGADILLO V. CARMICHAEL, 332
U.S. 388 (1947).  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 SEC. 307(D)(2) OF THE NATIONALITY
ACT OF 1940, 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., AT 596, 599-601.  ACCORDINGLY, TO ESCAPE CONSTITUTIONAL
CONFLICT WE HELD THE ADMINISTRATIVE REGULATIONS AUTHORIZING EXCLUSION
WITHOUT HEARING IN CERTAIN SECURITY CASES INAPPLICABLE TO ALIENS SO
PROTECTED BY THE FIFTH AMENDMENT.  ID., AT 600. 

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,
(FN9) SIMPLY LEFT THE UNITED STATES AND REMAINED BEHIND THE IRON
CURTAIN FOR 19 MONTHS.  MOREOVER, WHILE SEC. 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.  (FN10)  IN SUCH CIRCUMSTANCES, WE HAVE NO
DIFFICULTY IN HOLDING RESPONDENT AN ENTRANT ALIEN OR "ASSIMILATED TO
THAT STATUS" FOR CONSTITUTIONAL PURPOSES.  ID., AT 599.  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.  KNAUFF V. SHAUGHNESSY, 338 U.S. 537 (1950). 

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.  POLYMERIS V. TRUDELL, 284 U.S.
279 (1932).  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. 
(FN11)  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. 
(FN12)  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.  EKIU V. UNITED STATES, 142 U.S. 651, 661-662 (1892); UNITED
STATES V. JU TOY, 198 U.S. 253, 263 (1905); KAPLAN V. TOD, 267 U.S.
228, 230 (1925). 

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, 342
U.S. 524 (1952).  BY THAT PROCEDURE ALIENS UPROOTED FROM OUR MIDST MAY
REJOIN THE COMMUNITY UNTIL THE GOVERNMENT EFFECTS THEIR LEAVE.  (FN13)
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.  (FN14)  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.  (FN15)  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, 342
U.S. 580, 590-591 (1952).  REVERSED.    FN1  101 F. SUPP. 66 (1951). 
FN2  195 F.2D 964 (C.A.2D CIR. 1952). 

FN3  101 F. SUPP., AT 67. 

FN4  101 F. SUPP., AT 67, 70; R. 26-27. 

FN5  195 F.2D, AT 967, 968. 

FN6  ID., AT 970. 

FN7  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, SEC. 1, 55 STAT. 252, 22
U.S.C. SEC. 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, 96, 137, 330.  PURSUANT TO THAT AUTHORITY,
PRESIDENTIAL PROCLAMATION NO. 2523, 6 FED.  REG. 5821, AS PROMULGATED
IN 1941 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 CODIFIED AS PART 175 OF 8 CFR.  SECTION
175.53 DEFINES ELEVEN CATEGORIES OF ALIENS WHOSE ENTRY IS "DEEMED TO BE
PREJUDICIAL TO THE INTERESTS OF THE UNITED STATES."  THAT DELEGATION OF
AUTHORITY HAS BEEN UPHELD.  KNAUFF V. SHAUGHNESSY, 338 U.S. 537
(1950).  THE REGULATIONS WERE RATIFIED AND CONFIRMED BY PRESIDENTIAL
PROCLAMATION NO. 2850, 14 FED. REG. 5173, PROMULGATED AUGUST 17, 1949. 

FN8  8 CFR SEC. 175.57 PROVIDES: 

"SEC. 175.57:  ENTRY NOT PERMITTED IN SPECIAL CASES.  (A)  ANY ALIEN,
EVEN THOUGH IN POSSESSION OF A PERMIT TO ENTER, OR EXEMPTED UNDER SECS.
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 SEC. 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 SEC.
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 SEC. 175.53 ON THE BASIS OF INFORMATION OF A
CONFIDENTIAL NATURE, THE DISCLOSURE OF WHICH WOULD BE PREJUDICIAL TO
THE PUBLIC INTEREST." 

FN9  SEE 8 U.S.C. SEC. 210.  OF COURSE, NEITHER A REENTRY PERMIT,
ISSUABLE UPON PROOF OF PRIOR LAWFUL ADMISSION TO THE UNITED STATES,
SEC. 210(B), NOR AN IMMIGRATION VISA ENTITLES AN OTHERWISE INADMISSIBLE
ALIEN TO ENTRY.  SECS. 210(F), 202(G).  AN IMMIGRANT IS NOT UNAWARE OF
THIS; SEC. 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), CC. 10-11. 

FN10  8 U.S.C. SEC. 707; UNITED STATES V. LARSEN, 165 F.2D 433
(C.A.2D CIR. 1947). 

FN11  8 U.S.C. SEC. 151. 

FN12  8 U.S.C. SECS. 151, 154. 

FN13  8 U.S.C. (SUPP. V) SEC. 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 546. 

FN14  8 U.S.C. SEC. 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 SEC. 237(D) OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 202, SEC. 212(D)(5)
OF THAT ACT, 66 STAT. 188, VESTS NEW AND BROADER DISCRETION IN THE
ATTORNEY GENERAL.  CF. 8 U.S.C.  SECS. 136(P)(Q); 8 U.S.C. (SUPP. V)
SEC. 137-5(A)(B).  THOSE PROVISIONS ARE NOT NOW HERE. 

FN15  SEE S. REP. NO. 1515, 81ST CONG., 2D SESS. 643-644. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

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 "UNEXCEPTIONABLE" 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. 

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. 

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. 

*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 (1947), 16.  SEE
HAZARD, REFORMING SOVIET CRIMINAL LAW, 29 J. CRIM. L. & CRIMINOLOGY
157, 168-169 (1938-1939).  SEE ALSO BERMAN, PRINCIPLES OF SOVIET
CRIMINAL LAW, 56 YALE L.J. 803 (1946). 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

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.  (FN1)

                          I. 

WHAT IS OUR CASE?  (FN2)  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. 

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 TO THE UNITED STATES IN VIOLATION OF
LAW.  HE IS FREE TO DEPART FROM THE UNITED STATES TO ANY COUNTRY OF HIS
OWN 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 KEEP 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.  (FN3)  WE MUST REGARD THIS ALIEN AS
DEPRIVED OF LIBERTY, AND THE QUESTION IS WHETHER THE DEPRIVATION IS A
DENIAL OF DUE PROCESS OF LAW.    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."  (FN4)    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. 

                          II.  SUBSTANTIVE DUE PROCESS. 

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.  (FN5) 

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. 

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. 

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.  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; ZITTMAN V. MCGRATH, 341 U.S. 446,
AND 341 U.S. 471. 

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. 

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.  (FN6)  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.  (FN7) 

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. 

                             III.  PROCEDURAL DUE PROCESS. 

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
COMPRISE SUBSTANTIVE LAW. 

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. KNAUFF V. SHAUGHNESSY, 338 U.S. 537, 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). 

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
SHOULD 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. 

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, (FN8) 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." 

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. 

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. 

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. 

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. 

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. 
(FN9) 

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. 

FN1  SOMMERSETT'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. 

FN2  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? 

FN3  MR. JUSTICE HOLMES, FOR THE COURT, SAID IN CHIN YOW V. UNITED
STATES, 208 U.S. 8, 12-13: 

"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. 263, 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." 

FN4  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.) 

FN5  CF. KOREMATSU V. UNITED STATES, 323 U.S. 214. 

FN6  18 U.S.C. SEC. 3043; CF. CRIMINAL CODE OF NEW YORK, 66
MCKINNEY'S CONSOLIDATED LAWS, TIT. II, C. II, SEC. 84.    FN7  CRIMINAL
JUSTICE ACT, 1948, SEC. 21(2). 

FN8  HERMANN GORING, ON CROSS-EXAMINATION, MADE THE FOLLOWING
STATEMENTS: 

"  ...  THOSE 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). 

FN9  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. 
..END :




HEIKKILA V. BARBER 345 U.S. 229 


NO. 426.  ARGUED FEBRUARY 4-5, 1953 - DECIDED MARCH 16, 1953 -
AFFIRMED. 


AN ALIEN WHOSE DEPORTATION HAS BEEN ORDERED BY THE ATTORNEY GENERAL
UNDER SEC. 19(A) OF THE IMMIGRATION ACT OF 1917 MAY NOT OBTAIN A REVIEW
OF THE ATTORNEY GENERAL'S DECISION UNDER SEC. 10 OF THE ADMINISTRATIVE
PROCEDURE ACT, BY A SUIT FOR A DECLARATORY JUDGMENT OR INJUNCTIVE
RELIEF.  PP. 230-237. 

(A)  SECTION 19(A) OF THE IMMIGRATION ACT OF 1917 IS A STATUTE WHICH
PRECLUDES JUDICIAL REVIEW WITHIN THE MEANING OF THE FIRST EXCEPTION TO
SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT.  PP. 232-235. 

(B)  THE REASONS WHICH PREVENT REVIEW OF A DEPORTATION ORDER UNDER
SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT APPLY A FORTIORI TO SUITS
FOR INJUNCTION BASED ON THE GENERAL EQUITY POWERS OF THE FEDERAL COURTS
AND SUITS FOR DECLARATORY RELIEF UNDER THE DECLARATORY JUDGMENT ACT. 
P. 237. 

(C)  HABEAS CORPUS REMAINS THE ONLY PROCEDURE BY WHICH AN ALIEN WHOSE
DEPORTATION HAS BEEN ORDERED BY THE ATTORNEY GENERAL MAY CHALLENGE SUCH
ORDER IN THE COURTS.  PP. 234-235. 

HEIKKILA V. BARBER, DISTRICT DIRECTOR OF THE IMMIGRATION AND
NATURALIZATION SERVICE, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

APPELLANT'S COMPLAINT SEEKING A "REVIEW OF AGENCY ACTION" AS WELL AS
INJUNCTIVE AND DECLARATORY RELIEF, WAS DISMISSED BY A THREE-JUDGE
DISTRICT COURT.  ON DIRECT APPEAL TO THIS COURT, AFFIRMED, P. 237. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

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 SEC. 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. SECS. 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. 

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.  (FN1)  THE COURTS HAVE CONSISTENTLY REJECTED
ATTEMPTS TO USE INJUNCTIONS, DECLARATORY JUDGMENTS AND OTHER TYPES OF
RELIEF FOR THIS PURPOSE.  (FN2)  ACCORDINGLY, IN ASSERTING THE
AVAILABILITY OF JUDICIAL REVIEW OF THE TYPE SOUGHT HERE, APPELLANT
RELIES PRIMARILY ON SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT, (FN3)
CONCEDING THAT THE QUESTION HAS NOT YET BEEN DECIDED BY THIS COURT. 
THE GOVERNMENT CONTENDS THAT BECAUSE SEC. 19(A) OF THE IMMIGRATION ACT
OF 1917 (FN4) MAKES THE DECISION OF THE ATTORNEY GENERAL "FINAL" THE
UNDERLYING STATUTE PRECLUDES JUDICIAL REVIEW AND COMES WITHIN THE FIRST
EXCEPTION TO SEC. 10. 

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."  (FN5)  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."  (FN6)  THE SPIRIT
OF THESE STATEMENTS TOGETHER WITH THE BROADLY REMEDIAL PURPOSES OF THE
ACT COUNSEL A JUDICIAL ATTITUDE OF HOSPITALITY TOWARDS THE CLAIM THAT
SEC. 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 SEC. 10 CHANGED THE PRIOR LAW ON
JUDICIAL REVIEW.  (FN7)  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.  (FN8) 

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 CAN 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 SEC. 8 OF
THE IMMIGRATION ACT OF 1891, 26 STAT. 1085, 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 EKIU V. UNITED STATES, 142 U.S. 651
(1892) ARGUED THAT IF SEC. 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, 342 U.S. 580
(1952).  MR. JUSTICE GRAY FOUND THAT SEC. 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 663. 
WITH CHANGES UNIMPORTANT HERE, THIS FINALITY PROVISION WAS CARRIED
FORWARD IN LATER IMMIGRATION LEGISLATION.  SEE, E.G., SEC. 25 OF THE
1903 ACT, 32 STAT. 1220, AND SEC. 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, 149 U.S. 698 (1893).  IN LEM MOON SING V. UNITED STATES,
158 U.S. 538 (1895), 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."  ID., AT 549.  AND BY 1901, MR. 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 IN EXECUTIVE
OFFICERS, WITHOUT JUDICIAL INTERVENTION."  FOK YUNG YO V. UNITED
STATES, 185 U.S. 296, 305 (1902).  SEE ALSO THE JAPANESE IMMIGRANT CASE
(YAMATAYA V. FISHER), 189 U.S. 86 (1903); PEARSON V. WILLIAMS, 202 U.S.
281 (1906); ZAKONAITE V. WOLF, 226 U.S. 272 (1912). 

READ AGAINST THIS BACKGROUND OF A QUARTER OF A CENTURY OF CONSISTENT
JUDICIAL INTERPRETATION, SEC. 19 OF THE 1917 IMMIGRATION ACT, 39 STAT.
889, CLEARLY HAD THE EFFECT OF PRECLUDING JUDICIAL INTERVENTION IN
DEPORTATION CASES EXCEPT INSOFAR AS IT WAS REQUIRED BY THE
CONSTITUTION.  (FN9)  AND THE DECISIONS HAVE CONTINUED TO REGARD THIS
POINT AS SETTLED.  KESSLER V. STRECKER, 307 U.S. 22, 34 (1939); BRIDGES
V. WIXON, 326 U.S. 135, 149, 166, 167 (1945); ESTEP V. UNITED STATES,
327 U.S. 114, 122, 123, N. 14 (1946); SUNAL V. LARGE, 332 U.S. 174,
177, N. 3 (1947).  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 SEC.
10 OF THE ADMINISTRATIVE PROCEDURE ACT, THE FIRST EXCEPTION TO THAT
RIGHTS WERE NOT ENLARGED BY THAT ACT.  NOW, AS BEFORE, HE MAY ATTACK A
DEPORTATION ORDER ONLY BY HABEAS CORPUS.  (FN10) 

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, 166 F.2D
457; KRISTENSEN V. MCGRATH, 86 U.S. APP. D.C. 48, 179 F.2D 796; PRINCE
V. COMMISSIONER, 185 F.2D 578.  UNDER THIS APPROACH, THE FINALITY OF AN
ADMINISTRATIVE DECISION MUST BE ABSOLUTE BEFORE THE FIRST EXCEPTION TO
SEC. 10 CAN APPLY.  OUR DIFFICULTY WITH THIS POSITION BEGINS WITH THE
NATURE OF THE WRIT AND ENDS WITH THE LANGUAGE OF SEC. 10.  REGARDLESS
OF WHETHER OR NOT THE SCOPE OF INQUIRY ON HABEAS CORPUS HAS BEEN
EXPANDED, (FN11) 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 SEC. 10(E).  YET, FOR ALL THAT APPEARS, SEC.
10(E) MIGHT BE CALLED INTO PLAY AS WELL AS SEC. 10(B) IF HABEAS CORPUS
WERE REGARDED AS JUDICIAL REVIEW.  (FN12)  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. 

HEIKKILA SUGGESTS THAT PERKINS V. ELG, 307 U.S. 325
(1939)(DECLARATORY AND INJUNCTIVE RELIEF), AND MCGRATH V. KRISTENSEN,
340 U.S. 162 (1950)(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.  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 SEC. 19(C) OF
THE 1917 IMMIGRATION ACT, AS AMENDED, 8 U.S.C. SEC. 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. 

APPELLANT'S ADMINISTRATIVE PROCEDURE ACT ARGUMENT IS HIS STRONGEST
ONE.  THE REASONS WHICH TAKE HIS CASE OUT OF SEC. 10 APPLY A FORTIORI
TO ARGUMENTS BASED ON THE GENERAL EQUITY POWERS OF THE FEDERAL COURTS
AND THE DECLARATORY JUDGMENT ACT.  28 U.S.C. SEC. 2201.  SEE SKELLY OIL
CO. V. PHILLIPS CO., 339 U.S. 667, 671-672 (1950).  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. 

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.  (FN13)  WE ARE
ADVISED THAT THE GOVERNMENT HAS RECOMMENDED LEGISLATION WHICH WOULD
PERMIT WHAT HEIKKILA HAS TRIED HERE.  BUT THE CHOICE IS NOT OURS. 
AFFIRMED. 

FN1  MR. CHIEF JUSTICE STONE, DISSENTING (ON OTHER GROUNDS), IN
BRIDGES V. WIXON, 326 U.S. 135, 167 (1945). 

FN2  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, 54 F.2D 70.  SEE ALSO IMPIRIALE V.
PERKINS, 62 APP. D.C. 279, 66 F.2D 805; AZZOLLINI V. WATKINS, 172 F.2D
897. 

FN3  "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. SEC. 1009. 

FN4  "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. SEC. 155(A).  WE DO NOT
CONSIDER THE 1952 ACT, 66 STAT. 163, WHICH TOOK EFFECT AFTER HEIKKILA'S
COMPLAINT WAS FILED. 

FN5  LEGISLATIVE HISTORY, S. DOC. NO. 248, 79TH CONG., 2D SESS., 212,
275. 

FN6  LEGISLATIVE HISTORY, 275. 

FN7  LEGISLATIVE HISTORY, 311, 325. 

FN8  LUDECKE V. WATKINS, 335 U.S. 160 (1948); AMERICAN FEDERATION OF
LABOR V. LABOR BOARD, 308 U.S. 401 (1940); SWITCHMEN'S UNION V.
NATIONAL MEDIATION BOARD, 320 U.S. 297 (1943); STARK V. WICKARD, 321
U.S. 288 (1944). 

FN9  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; PEARSON V. WILLIAMS, 202 U.S.,
281; ETC.)."  S. REP. NO. 352, 64TH CONG., 1ST SESS., VOL. 2, 16. 

FN10  WE NEED NOT CONSIDER WHETHER THE SAME RESULT FOLLOWS FROM THE
FIRST PART OF SEC. 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  ...  ." 

FN11  COMPARE THE JAPANESE IMMIGRANT CASE, 189 U.S. 86 (1903), WITH
UNITED STATES EX REL. VAJTAUER V. COMMISSIONER, 273 U.S. 103 (1927),
AND BRIDGES V. WIXON, 326 U.S. 135 (1945). 

FN12  THE LOWER COURTS HAVE SPLIT ON THIS QUESTION AND WE EXPRESS NO
OPINION ON IT NOW.  YIAKOUMIS V. HALL, 83 F. SUPP. 469; LINDENAU V.
WATKINS, 73 F. SUPP. 216. 

FN13  SEE PAOLO V. GARFINKEL, 200 F.2D 280. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

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 SEC. 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 SEC.
10(B), IN THAT THE IMMIGRATION ACT IS ONE OF THE STATUTES THAT
"PRECLUDE JUDICIAL REVIEW."  60 STAT. 243, 5 U.S.C. SEC. 1009.  IN
SHORT, THE COURT GIVES THE PHRASE "JUDICIAL REVIEW" IN SEC. 10 A
TECHNICAL CONTENT AND THEREBY DISREGARDS THE VITAL FACT THAT ALTHOUGH
SEC. 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 FREQUENTLY 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. 

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. 

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 SEC. 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. 

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. 
..END :
















ALBERTSON V. MILLARD 345 U.S. 242 


NO. 384.  ARGUED FEBRUARY 2, 1953 - DECIDED MARCH 16, 1953 - 106 F.
SUPP. 635, JUDGMENT VACATED AND CAUSE REMANDED. 


FIVE DAYS AFTER ENACTMENT OF THE MICHIGAN COMMUNIST CONTROL ACT OF
APRIL 17, 1952, THE COMMUNIST PARTY OF MICHIGAN AND ITS EXECUTIVE
SECRETARY SUED IN A FEDERAL DISTRICT COURT FOR A DECLARATORY JUDGMENT
THAT IT VIOLATES THE FEDERAL CONSTITUTION AND FOR AN INJUNCTION AGAINST
ITS ENFORCEMENT.  THE DISTRICT COURT FOUND THE ACT CONSTITUTIONAL BUT
TEMPORARILY RESTRAINED ITS ENFORCEMENT PENDING APPEAL TO THIS COURT.  A
SIMILAR SUIT WAS BROUGHT IN A STATE COURT BUT IS BEING HELD IN ABEYANCE
PENDING THE DECISION OF THIS COURT.  THE ACT HAS NOT BEEN CONSTRUED OR
APPLIED BY THE MICHIGAN COURTS OR EXECUTIVE AUTHORITIES.  HELD:
JUDGMENT VACATED AND CAUSE REMANDED WITH DIRECTIONS TO VACATE THE
RESTRAINING ORDER AND TO HOLD THE PROCEEDINGS IN ABEYANCE A REASONABLE
TIME PENDING CONSTRUCTION OF THE STATUTE BY THE STATE COURTS.  PP. 242
245. 

ALBERTSON ET AL. V. MILLARD, ATTORNEY GENERAL OF MICHIGAN, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

PER CURIAM. 

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 FOR 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 FOUND THE ACT CONSTITUTIONAL, 106 F.
SUPP. 635, AND AN APPEAL WAS TAKEN TO THIS COURT. 

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.*  MICH. ACTS 1952, NO.
117. 

*"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
SATELLITES. 

"SEC. 3.  THE 'COMMUNIST PARTY' IS ANY ORGANIZATION WHICH IS
SUBSTANTIALLY DIRECTED, DOMINATED OR CONTROLLED BY THE UNION OF SOVIET
SOCIALIST REPUBLICS OR ITS SATELLITES, 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." 

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 SATELLITES" 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. 

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. 

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. 

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, 331 U.S. 549 (1947); AMERICAN
FEDERATION OF LABOR V. WATSON, 327 U.S. 582 (1946); AND SPECTOR MOTOR
SERVICE V. MCLAUGHLIN, 323 U.S. 101 (1944). 

THE JUDGMENT IS VACATED AND THE 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.  IT IS SO ORDERED. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

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. 

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, 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 A.F. OF L. V. WATSON, 327 U.S. 582, 598.  HERE THERE ARE BUT
TWO QUESTIONS: 

(1)  CAN MICHIGAN REQUIRE THE COMMUNIST PARTY OF MICHIGAN AND ITS
EXECUTIVE SECRETARY TO REGISTER? 

(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? 

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. 
..END :




UNITED STATES V. REYNOLDS 345 U.S. 1 


NO. 21.  ARGUED OCTOBER 21, 1952 - DECIDED MARCH 9, 1953 - 192 F.2D 987,
REVERSED. 


A MILITARY AIRCRAFT ON A FLIGHT TO TEST SECRET ELECTRONIC EQUIPMENT
CRASHED AND CERTAIN CIVILIAN OBSERVERS ABOARD WERE KILLED.  THEIR
WIDOWS SUED THE UNITED STATES UNDER THE TORT CLAIMS ACT AND MOVED UNDER
RULE 34 OF THE FEDERAL RULES OF CIVIL PROCEDURE FOR PRODUCTION OF THE
AIR FORCE'S ACCIDENT INVESTIGATION REPORT AND STATEMENTS MADE BY
SURVIVING CREW MEMBERS DURING THE INVESTIGATION.  THE SECRETARY OF THE
AIR FORCE FILED A FORMAL CLAIM OF PRIVILEGE, STATING THAT THE MATTERS
WERE PRIVILEGED AGAINST DISCLOSURE UNDER AIR FORCE REGULATIONS ISSUED
UNDER R.S. SEC. 161 AND THAT THE AIRCRAFT AND ITS PERSONNEL WERE
"ENGAGED IN A HIGHLY SECRET MISSION."  THE JUDGE ADVOCATE GENERAL FILED
AN AFFIDAVIT STATING THAT THE MATERIAL COULD NOT BE FURNISHED "WITHOUT
SERIOUSLY HAMPERING NATIONAL SECURITY"; BUT HE OFFERED TO PRODUCE THE
SURVIVING CREW MEMBERS FOR EXAMINATION BY PLAINTIFFS AND TO PERMIT THEM
TO TESTIFY AS TO ALL MATTERS EXCEPT THOSE OF A "CLASSIFIED NATURE." 
HELD:  IN THIS CASE, THERE WAS A VALID CLAIM OF PRIVILEGE UNDER RULE
34; AND A JUDGMENT BASED UNDER RULE 37 ON REFUSAL TO PRODUCE THE
DOCUMENTS SUBJECTED THE UNITED STATES TO LIABILITY TO WHICH CONGRESS
DID NOT CONSENT BY THE TORT CLAIMS ACT.  PP. 2-12. 

(A)  AS USED IN RULE 34, WHICH COMPELS PRODUCTION ONLY OF MATTERS
"NOT PRIVILEGED," THE TERM "NOT PRIVILEGED" REFERS TO "PRIVILEGES" AS
THAT TERM IS UNDERSTOOD IN THE LAW OF EVIDENCE.  P. 6. 

(B)  WHEN THE SECRETARY LODGED HIS FORMAL CLAIM OF PRIVILEGE, HE
INVOKED A PRIVILEGE AGAINST REVEALING MILITARY SECRETS WHICH IS WELL
ESTABLISHED IN THE LAW OF EVIDENCE.  PP. 6-7. 

(C)  WHEN A CLAIM OF PRIVILEGE AGAINST REVEALING MILITARY SECRETS IS
INVOKED, THE COURTS MUST DECIDE WHETHER THE OCCASION FOR INVOKING THE
PRIVILEGE IS APPROPRIATE, AND YET DO SO WITHOUT JEOPARDIZING THE
SECURITY WHICH THE PRIVILEGE WAS MEANT TO PROTECT.  PP. 7-8. 

(D)  WHEN THE FORMAL CLAIM OF PRIVILEGE WAS FILED BY THE SECRETARY,
UNDER CIRCUMSTANCES INDICATING A REASONABLE POSSIBILITY THAT MILITARY
SECRETS WERE INVOLVED, THERE WAS A SUFFICIENT SHOWING OF PRIVILEGE TO
CUT OFF FURTHER DEMAND FOR THE DOCUMENTS ON THE SHOWING OF NECESSITY
FOR ITS COMPULSION THAT HAD BEEN MADE.  P. 10. 

(E)  IN THIS CASE, THE SHOWING OF NECESSITY WAS GREATLY MINIMIZED BY
PLAINTIFFS' REJECTION OF THE JUDGE ADVOCATE GENERAL'S OFFER TO MAKE THE
SURVIVING CREW MEMBERS AVAILABLE FOR EXAMINATION.  P. 11. 

(F)  THE DOCTRINE IN THE CRIMINAL FIELD THAT THE GOVERNMENT CAN
INVOKE ITS EVIDENTIARY PRIVILEGES ONLY AT THE PRICE OF LETTING THE
DEFENDANT GO FREE 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.  P. 12. 

UNITED STATES V. REYNOLDS ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN A SUIT UNDER THE TORT CLAIMS ACT, THE DISTRICT COURT ENTERED
JUDGMENT AGAINST THE GOVERNMENT.  10 F.R.D. 468.  THE COURT OF APPEALS
AFFIRMED.  192 F.2D 987.  THIS COURT GRANTED CERTIORARI.  343 U.S.
918.  REVERSED AND REMANDED, P. 12. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THESE SUITS UNDER THE TORT CLAIMS ACT (FN1) 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 DISCOVERY (FN2) IS INVOLVED, WE GRANTED
CERTIORARI.  343 U.S. 918. 

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 OBSERVERS WERE KILLED IN
THE CRASH. 

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, (FN3) 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. SEC. 161.  (FN4)  THE DISTRICT JUDGE SUSTAINED
PLAINTIFFS' MOTION, HOLDING THAT GOOD CAUSE FOR PRODUCTION HAD BEEN
SHOWN.  (FN5) THE CLAIM OF PRIVILEGE UNDER R.S. SEC. 161 WAS REJECTED
ON THE PREMISE THAT THE TORT CLAIMS ACT, IN MAKING THE GOVERNMENT
LIABLE "IN THE SAME MANNER" AS A PRIVATE INDIVIDUAL, (FN6) HAD WAIVED
ANY PRIVILEGE BASED UPON EXECUTIVE CONTROL OVER GOVERNMENTAL
DOCUMENTS. 

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. SEC. 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." 

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), (FN7) 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, (FN8) 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. 

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.  (FN9)
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, 340 U.S.
462 (1951); RESCUE ARMY V. MUNICIPAL COURT OF LOS ANGELES, 331 U.S.
549, 574-585 (1947). 

THE TORT CLAIMS ACT EXPRESSLY MAKES THE FEDERAL RULES OF CIVIL
PROCEDURE APPLICABLE TO SUITS AGAINST THE UNITED STATES.  (FN10)  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. 

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.  (FN11) THE EXISTENCE OF THE
PRIVILEGE IS CONCEDED BY THE COURT BELOW, (FN12) AND, INDEED, BY THE
MOST OUTSPOKEN CRITICS OF GOVERNMENTAL CLAIMS TO PRIVILEGE.  (FN13) 

JUDICIAL EXPERIENCE WITH THE PRIVILEGE WHICH PROTECTS MILITARY AND
STATE SECRETS HAS BEEN LIMITED IN THIS COUNTRY.  (FN14)  ENGLISH
EXPERIENCE HAS BEEN MORE EXTENSIVE, BUT STILL RELATIVELY SLIGHT
COMPARED WITH OTHER EVIDENTIARY PRIVILEGES.  (FN15)  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 CLAIMED (FN16)
NOR WAIVED (FN17) BY A PRIVATE PARTY.  IT IS NOT TO BE LIGHTLY
INVOKED.  (FN18)  THERE MUST BE A FORMAL CLAIM OF PRIVILEGE, LODGED BY
THE HEAD OF THE DEPARTMENT WHICH HAS CONTROL OVER THE MATTER, (FN19)
AFTER ACTUAL PERSONAL CONSIDERATION BY THAT OFFICER.  (FN20)  THE COURT
ITSELF MUST DETERMINE WHETHER THE CIRCUMSTANCES ARE APPROPRIATE FOR THE
CLAIM OF PRIVILEGE, (FN21) AND YET DO SO WITHOUT FORCING A DISCLOSURE
OF THE VERY THING THE PRIVILEGE IS DESIGNED TO PROTECT.  (FN22)  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. 

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.  (FN23)
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.  (FN24)  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, 341 U.S. 479, 486-487 (1951). 
(FN25)  IF THE COURT IS SO SATISFIED, THE CLAIM OF THE PRIVILEGE WILL
BE ACCEPTED WITHOUT REQUIRING FURTHER DISCLOSURE. 

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. 

IN THE INSTANT CASE WE CANNOT ESCAPE JUDICIAL NOTICE THAT THIS IS A
TIME OF VIGOROUS PREPARATION FOR NATIONAL DEFENSE.  EXPERIENCE IN THE
PAST WAR 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. 

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 DOCUMENTS ON THE SHOWING OF NECESSITY FOR ITS COMPULSION THAT
HAD THEN BEEN MADE. 

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.  (FN26)  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. 

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 A 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. 

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.   (FN27)
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. 

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.  REVERSED AND REMANDED. 

FN1  28 U.S.C. SECS. 1346, 2674. 

FN2  FEDERAL RULES OF CIVIL PROCEDURE, RULE 34. 

FN3  "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." 

FN4  5 U.S.C. SEC. 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." 

FN5  10 F.R.D. 468. 

FN6  28 U.S.C. SEC. 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." 

FN7  "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; ...  ." 

FN8  192 F.2D 987. 

FN9  WHILE CLAIM OF EXECUTIVE POWER TO SUPPRESS DOCUMENTS IS BASED
MORE IMMEDIATELY UPON R.S. SEC. 161 (SEE SUPRA, NOTE 4), THE ROOTS GO
MUCH DEEPER.  IT IS SAID THAT R.S. SEC. 161 IS ONLY A LEGISLATIVE
RECOGNITION OF AN INHERENT EXECUTIVE POWER WHICH IS PROTECTED IN THE
CONSTITUTIONAL SYSTEM OF SEPARATION OF POWER. 

FN10  28 U.S.C. (1946 ED.)  SEC.  932; UNITED STATES V. YELLOW CAB
CO., 340 U.S. 543, 553 (1951). 

FN11  TOTTEN V. UNITED STATES, 92 U.S. 105, 107 (1875); FIRTH
STERLING STEEL CO. V. BETHLEHEM STEEL CO., 199 F. 353 (D.C.E.D. PA.
1912); POLLEN V. FORD INSTRUMENT CO., 26 F. SUPP. 583 (D.C.E.D.N.Y.
1939); CRESMER V. UNITED STATES, 9 F.R.D. 203 (D.C.E.D.N.Y. 1949); SEE
BANK LINE V. UNITED STATES, 68 F. SUPP. 587 (D.C.S.D.N.Y. 1946), 163
F.2D 133 (C.A.2D CIR. 1947).  8 WIGMORE ON EVIDENCE (3D ED.)  SEC. 
2212A, P. 161, AND SEC. 2378(G)(5), AT PP. 785 ET SEQ.; 1 GREENLEAF ON
EVIDENCE (16TH ED.)  SECS.  250-251; SANFORD, EVIDENTIARY PRIVILEGES
AGAINST THE PRODUCTION OF DATA WITHIN THE CONTROL OF EXECUTIVE
DEPARTMENTS, 3 VANDERBILT L. REV. 73, 74-75 (1949). 

FN12  192 F.2D 987, 996. 

FN13  SEE WIGMORE, OP. CIT. SUPRA, NOTE 11. 

FN14  SEE CASES CITED SUPRA, NOTE 11. 

FN15  MOST OF THE ENGLISH PRECEDENTS ARE REVIEWED IN THE RECENT CASE
OF DUNCAN V. CAMMELL, LAIRD & CO., (1942) A.C. 624. 

FN16  FIRTH STERLING STEEL CO. V. BETHLEHEM STEEL CO., 199 F. 353
(D.C.E.D. PA. 1912). 

FN17  IN RE GROVE, 180 F. 62 (C.A. 3RD CIR. 1910). 

FN18  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." 

FN19  FIRTH CASE, SUPRA, NOTE 16. 

FN20  "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. 

FN21  ID., AT P. 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  ...  ." 

FN22  ID., AT PP. 638-642; CF. THE LANGUAGE OF THIS COURT IN HOFFMAN
V. UNITED STATES, 341 U.S. 479, 486 (1951), 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." 

FN23  COMPARE THE EXPRESSIONS OF ROLFE, B. AND WILDE, C.J. IN REGINA
V. GARBETT, 2 CAR.  & K. 474, 492 (1847); SEE 8 WIGMORE ON EVIDENCE (3D
ED.)  SEC.  2271. 

FN24  I ROBERTSON'S REPORTS 244: 

"WHEN A QUESTION IS PROPOUNDED, IT BELONGS TO THE COURT TO CONSIDER
AND TO 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." 

FN25  BROWN V. UNITED STATES, 276 U.S. 134 (1928); MASON V. UNITED
STATES, 244 U.S. 362 (1917). 

FN26  SEE TOTTEN V. UNITED STATES, 92 U.S. 105 (1875), 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. 

FN27  UNITED STATES V. ANDOLSCHEK, 142 F.2D 503 (C.A.2D CIR. 1944);
UNITED STATES V. BEEKMAN, 155 F.2D 580 (C.A.2D CIR. 1946). 

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. 
..END :








ALSTATE CONSTRUCTION CO. V. DURKIN 345 U.S. 13 


NO. 296.  ARGUED FEBRUARY 2-3, 1953 - DECIDED MARCH 9, 1953 - 195 F.2D
577, AFFIRMED. 


PETITIONER PRODUCES IN PENNSYLVANIA A ROAD-SURFACING MIXTURE MADE FROM
MATERIALS BOUGHT OR QUARRIED IN PENNSYLVANIA.  MOST OF IT IS USED IN
PENNSYLVANIA ON INTERSTATE ROADS AND RAILROADS AND ON THE IMPROVEMENT
OF FACILITIES FOR COMPANIES PRODUCING GOODS FOR INTERSTATE COMMERCE. 
HELD: PETITIONER'S EMPLOYEES WHO DO NOT WORK ON THE ROADS THEMSELVES
BUT ARE ENGAGED IN THE PRODUCTION OF THE ROAD-SURFACING MIXTURE FOR THE
USES SHOWN ARE ENGAGED IN THE "PRODUCTION OF GOODS FOR COMMERCE" AND
ARE WITHIN THE COVERAGE OF THE FAIR LABOR STANDARDS ACT.  PP. 13-17. 

ALSTATE CONSTRUCTION CO. V. DURKIN, SECRETARY OF LABOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

THE DISTRICT COURT ENJOINED PETITIONER FROM VIOLATING THE OVERTIME
AND RECORD-KEEPING PROVISIONS OF THE FAIR LABOR STANDARDS ACT.  95 F.
SUPP. 585.  THE COURT OF APPEALS AFFIRMED.  195 F.2D 577.  THIS COURT
GRANTED CERTIORARI.  344 U.S. 895.  AFFIRMED, P. 17. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

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; SEC. 11(C) REQUIRES EMPLOYERS TO KEEP APPROPRIATE EMPLOYMENT
RECORDS.  (FN1) 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 SEC. 7(A).  (FN2)  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 SEC. 7(A). 

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. 

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 CO. 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. 

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, (FN3) 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,
AND PEDERSEN V. FITZGERALD CONSTRUCTION CO., 318 U.S. 740 - THAT THE
ONLY WAY TO PRODUCE GOODS "FOR COMMERCE" IS TO PRODUCE THEM FOR
TRANSPORTATION ACROSS STATE LINES. 

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." 

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 SCOPE (FN4) 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.  (FN5) 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  ...  ." 
(FN6) 

WE DECLINE TO REPUDIATE AN ADMINISTRATIVE INTERPRETATION OF THE ACT
WHICH CONGRESS REFUSED TO REPUDIATE AFTER BEING REPEATEDLY URGED TO DO
SO. 

THERE IS AN OBJECTION TO THE SCOPE OF THE INJUNCTION, BUT WE ARE
SATISFIED WITH THE COURT OF APPEALS' TREATMENT OF THIS CONTENTION. 
AFFIRMED. 

FN1  52 STAT. 1060, AS AMENDED, 63 STAT. 910, 912-913, 29 U.S.C.
SECS. 207(A), 211(C). 

FN2  OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125; PEDERSEN V.
FITZGERALD CONSTRUCTION CO., 318 U.S. 740, REVERSING 288 N.Y. 687, 43
N.E.2D 83, ON THE AUTHORITY OF OVERSTREET V. NORTH SHORE CORP., SUPRA. 

FN3  81 CONG. REC. 7957. 

FN4  FLEMING V. ATLANTIC CO., 40 F. SUPP. 654, AFFIRMED SUB NOM.
ATLANTIC CO. V. WALLING, 131 F.2D 518; LEWIS V. FLORIDA POWER & LIGHT
CO., 154 F.2D 751; SOUTHERN UNITED ICE CO. V. HENDRIX, 153 F.2D 689;
CHAPMAN V. HOME ICE CO., 136 F.2D 353. 

FN5  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. 

FN6  63 STAT. 910, 920. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING. 

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. 

A PERSON WHO IS MAINTAINING OR REPAIRING INTERSTATE TRANSPORTATION
FACILITIES IS "ENGAGED IN COMMERCE."  OVERSTREET V. NORTH SHORE CORP.,
318 U.S. 125.  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.  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, PP. 522-523.  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. 
..END :







THOMAS V. HEMPT BROTHERS 345 U.S. 19 


NO. 410.  ARGUED FEBRUARY 3, 1953 - DECIDED MARCH 9, 1953 - 371 PA. 383,
89 A.2D 776, REVERSED. 


PETITIONER SUED RESPONDENT FOR OVERTIME PAY, LIQUIDATED DAMAGES AND
COUNSEL FEES UNDER SECS. 6, 7 AND 16(B) OF THE FAIR LABOR STANDARDS
ACT, ALLEGING THAT HE WAS EMPLOYED IN PRODUCING ROAD-BUILDING MATERIALS
IN PENNSYLVANIA WHICH WERE SOLD FOR USE IN PENNSYLVANIA BY AN
INTERSTATE ROAD, RAILROAD AND AIRPORT AND OTHER CUSTOMERS WHO USED THEM
ON PROJECTS WHICH "AIDED THE FLOW OF COMMERCE."  HELD:  A JUDGMENT FOR
RESPONDENT ON THE GROUND THAT PETITIONER HAD FAILED TO STATE A CAUSE OF
ACTION UNDER THE ACT IS REVERSED ON THE AUTHORITY OF ALSTATE
CONSTRUCTION CO. V. DURKIN, ANTE, P. 13.  PP. 19-21. 

THOMAS V. HEMPT BROTHERS. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

THE SUPREME COURT OF PENNSYLVANIA SUSTAINED A TRIAL COURT'S JUDGMENT
FOR RESPONDENT.  371 PA. 383, 89 A.2D 776.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 895.  REVERSED AND REMANDED, P. 21. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

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 SECS. 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. 

*52 STAT. 1060, AS AMENDED, 63 STAT. 910, 29 U.S.C. SECS. 206, 207,
216(B). 

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 62 PA.
D.&C. 618, 626 (1948); AND 74 PA. D.&C. 213, 218 (1950).  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. 

WE HAVE TODAY AFFIRMED THE COURT OF APPEALS' JUDGMENT IN THE ALSTATE
CASE, ANTE, P. 13.  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.  REVERSED AND
REMANDED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS DISSENT FOR THE
REASONS STATED IN THE DISSENTING OPINION IN NO. 296, ALSTATE
CONSTRUCTION CO. V. DURKIN, ANTE, P. 17. 
..END :



UNITED STATES V. KAHRIGER 345 U.S. 22 


NO. 167.  ARGUED DECEMBER 16-17, 1952 - DECIDED MARCH 9, 1953 - 105 F.
SUPP. 322, REVERSED. 


PROVISIONS OF THE REVENUE ACT OF 1951, 26 U.S.C. SECS. 3285-3294, LEVY
AN OCCUPATIONAL TAX OF $50 PER YEAR ON PERSONS ENGAGED IN THE BUSINESS
OF ACCEPTING WAGERS; REQUIRE SUCH PERSONS TO REGISTER WITH THE
COLLECTOR OF INTERNAL REVENUE; AND PENALIZE FAILURE TO PAY THE TAX AND
TO REGISTER.  HELD: 

1.  THE TAX IS A VALID EXERCISE OF THE FEDERAL TAXING POWER AND IS
NOT UNCONSTITUTIONAL AS AN INFRINGEMENT BY THE FEDERAL GOVERNMENT ON
THE POLICE POWERS RESERVED TO THE STATES BY THE TENTH AMENDMENT.  PP.
23-31. 

(A)  THE FACT THAT THE TAX HAS A REGULATORY EFFECT UPON WAGERING, AND
BRINGS ABOUT A RESULT THAT IS BEYOND THE DIRECT LEGISLATIVE POWER OF
CONGRESS, DOES NOT RENDER IT INVALID.  PP. 26-31. 

(B)  THE REGISTRATION REQUIREMENTS ARE VALID AS IN AID OF A REVENUE
PURPOSE.  PP. 31-32. 

2.  THE TAX PROVISIONS DO NOT CONTRAVENE THE PRIVILEGE AGAINST SELF
INCRIMINATION GUARANTEED BY THE FIFTH AMENDMENT.  PP. 31-33. 

(A)  THE PRIVILEGE AGAINST SELF-INCRIMINATION RELATES ONLY TO PAST
ACTS, NOT TO FUTURE ACTS THAT MAY OR MAY NOT BE COMMITTED.  P. 32. 

(B)  UNDER THE REGISTRATION PROVISIONS, A PERSON SUBJECT TO THE TAX
IS NOT COMPELLED TO CONFESS TO ACTS ALREADY COMMITTED; HE IS MERELY
INFORMED THAT IN ORDER TO ENGAGE IN THE BUSINESS OF WAGERING IN THE
FUTURE HE MUST FULFILL CERTAIN CONDITIONS.  PP. 32-33. 

3.  THE STATUTE IS NOT VIOLATIVE OF THE DUE PROCESS CLAUSE ON THE
GROUND THAT THE CLASSIFICATION IS ARBITRARY BECAUSE SOME WAGERING
TRANSACTIONS ARE EXCLUDED, NOR ON THE GROUND THAT THE STATUTORY
DEFINITIONS ARE VAGUE.  PP. 33-34. 

UNITED STATES V. KAHRIGER. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA. 

AN INFORMATION CHARGING APPELLEE WITH WILLFUL FAILURE TO PAY THE
OCCUPATIONAL TAX IMPOSED BY 26 U.S.C. SEC. 3290 AND TO REGISTER
THEREFOR AS REQUIRED BY 26 U.S.C. SEC. 3291, WAS DISMISSED BY THE
DISTRICT COURT, ON THE GROUND THAT THE STATUTE WAS UNCONSTITUTIONAL. 
105 F. SUPP. 322.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT UNDER
18 U.S.C. SEC. 3731.  REVERSED, P. 34. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE ISSUE RAISED BY THIS APPEAL IS THE CONSTITUTIONALITY OF THE
OCCUPATIONAL TAX PROVISIONS OF THE REVENUE ACT OF 1951, (FN1) 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) SEC. 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. 

THE CASE COMES HERE ON APPEAL, IN ACCORDANCE WITH 18 U.S.C. SEC.
3731, FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA, WHERE AN INFORMATION WAS FILED 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.  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, 105 F. SUPP. 322, 323. 

THE RESULT BELOW IS AT ODDS WITH THE POSITION OF THE SEVEN OTHER
DISTRICT COURTS WHICH HAVE CONSIDERED THE MATTER, (FN2) AND, IN OUR
OPINION, IS ERRONEOUS. 

IN THE TERM FOLLOWING THE CONSTANTINE OPINION, THIS COURT POINTED OUT
IN SONZINSKY V. UNITED STATES, 300 U.S. 506, AT 513 (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. 

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, 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.  P. 470.  THE COURT
POINTED OUT THAT CONGRESS HAD "NO POWER OF REGULATION NOR ANY DIRECT
CONTROL" (5 WALL., AT 470, 471) 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.  P.
471. 

"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."  ID., AT 471. 

APPELLEE WOULD HAVE US SAY THAT, BECAUSE THERE IS LEGISLATIVE HISTORY
(FN3) INDICATING A CONGRESSIONAL MOTIVE TO SUPPRESS WAGERING, THIS TAX
IS NOT A PROPER EXERCISE OF SUCH TAXING POWER.  IN THE LICENSE TAX
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 (TAX ON PAPER MONEY ISSUED
BY STATE BANKS); MCCRAY V. UNITED STATES, 195 U.S. 27, 59 (TAX ON
COLORED OLEOMARGARINE); UNITED STATES V. DOREMUS, 249 U.S. 86, AND
NIGRO V. UNITED STATES, 276 U.S. 332 (TAX ON NARCOTICS); SONZINSKY V.
UNITED STATES, 300 U.S. 506 (TAX ON FIREARMS); UNITED STATES V.
SANCHEZ, 340 U.S. 42 (TAX ON MARIHUANA). 

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 IS 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.  (FN4) 

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, AT 471.  (FN5)  THE REMEDY FOR EXCESSIVE TAXATION IS
IN THE HANDS OF CONGRESS, NOT THE COURTS.  VEAZIE BANK V. FENNO, 8
WALL.  533, 548.  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: 

"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." 

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. 

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.  (FN6)  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.  (FN7)
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.  (FN8)  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."  ID., AT 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.  (FN9) 

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.  (FN10)
UNLESS THERE ARE PROVISIONS EXTRANEOUS TO ANY TAX NEED, COURTS ARE
WITHOUT AUTHORITY TO LIMIT THE EXERCISE OF THE TAXING POWER.  (FN11)
ALL THE PROVISIONS OF THIS EXCISE ARE ADAPTED TO THE COLLECTION OF A
VALID TAX. 

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.  (FN12)
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 513.  THE REGISTRATION
PROVISIONS MAKE THE TAX SIMPLER TO COLLECT. 

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. 

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, 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."  ID., AT 263. 
"AS THE DEFENDANT'S INCOME WAS TAXED, THE STATUTE OF COURSE REQUIRED A
RETURN.  SEE UNITED STATES V. SISCHO, 262 U.S. 165.  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
263. 

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 (3D ED., 1940) SEC. 2259C.  IF
RESPONDENT WISHES TO TAKE WAGERS SUBJECT TO EXCISE TAXES UNDER SEC.
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 INFORMED BY THE
STATUTE THAT IN ORDER TO ENGAGE IN THE BUSINESS OF WAGERING IN THE
FUTURE HE MUST FULFILL CERTAIN CONDITIONS.  (FN13) 

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. 
(FN14)  THE APPLICABLE DEFINITIONS ARE 26 U.S.C. (SUPP. V) SEC.
3285(B), (D) AND (E).  (FN15)  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.  (FN16)  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 SEC.
3285(B)(2).  WE HAVE NO DOUBT THE DEFINITIONS MAKE CLEAR THE ACTIVITIES
COVERED AND EXCLUDED.  REVERSED.    FN1  26 U.S.C. (SUPP. V) SEC.
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) SEC. 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) SEC. 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) SEC. 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." 

FN2  UNITED STATES V. SMITH, 106 F. SUPP. 9 (D.C.S.D. CAL.); UNITED
STATES V. NADLER, 105 F. SUPP. 918 (D.C.N.D. CAL.); UNITED STATES V.
FORRESTER, 105 F. SUPP. 136 (D.C.N.D. GA.); UNITED STATES V. ROBINSON,
107 F. SUPP. 38 (D.C.E.D. MICH.); UNITED STATES V. ARNOLD, JORDAN, AND
WINGATE, NO. 478 (D.C.E.D. VA.), SEPTEMBER 18, 1952; UNITED STATES V.
PENN, NO. 2021 (D.C.M.D.N.C.), MAY 1952; COMBS V. SNYDER, 101 F. SUPP.
531 (D.D.C.), AFFIRMED, 342 U.S. 939. 

FN3  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.'" 

FN4  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.) 

FN5  BUT SEE THE ARGUMENT FOR DEFENDANT IN THE CHILD LABOR TAX CASE,
259 U.S. 20, 30. 

FN6  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 424, UPHELD THE CREATION
OF A BANK UNDER THE NECESSARY AND PROPER CLAUSE.  VEAZIE BANK V. FENNO,
8 WALL.  533, 548, DEPENDS PARTLY ON THE ALTERNATE GROUND OF THE
FEDERAL POWER TO PROVIDE MONEY FOR CIRCULATION.  IN RE RAPIER, 143 U.S.
110, THE USE OF THE MAILS BY PAPERS THAT ADVERTISED THE LOUISIANA
LOTTERY WAS BARRED.  THE LOTTERY CASE, 188 U.S. 321, 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; TO SEIZE CONTRABAND EGGS AFTER SHIPMENT HAD ENDED, HIPOLITE EGG
CO. V. UNITED STATES, 220 U.S. 45, 56; AND TO BAR TRANSPORTATION OF
WOMEN FOR IMMORAL PURPOSES, CAMINETTI V. UNITED STATES, 242 U.S. 470. 
WHILE IN UNITED STATES V. BUTLER, 297 U.S. 1, 68, 73, 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; WICKARD V. FILBURN, 317 U.S. 111.  HILL V.
WALLACE, 259 U.S. 44, 67, AND TRUSLER V. CROOKS, 269 U.S. 475, BASED ON
TAXATION, HELD TAXES THAT REGULATED THE GRAIN MARKETS WERE
UNCONSTITUTIONAL AS AN INTERFERENCE WITH STATE POWER.  IN CHICAGO BOARD
OF TRADE V. OLSEN, 262 U.S. 1, REGULATIONS BASED ON THE COMMERCE CLAUSE
WERE UPHELD.  THE DEPARTURE FROM THIS LINE OF DECISIONS IN HAMMER V.
DAGENHART, 247 U.S. 251, WAS REVERSED IN UNITED STATES V. DARBY, 312
U.S. 100, 115-124, 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."  ID., AT 115. 
"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." 
ID., AT 118. 

FN7  UNITED STATES V. JIN FUEY MOY, 241 U.S. 394, 402; UNITED STATES
V. DOREMUS, 249 U.S. 86; LINDER V. UNITED STATES, 268 U.S. 5; NIGRO V.
UNITED STATES, 276 U.S. 332. 

FN8  CF. NEW YORK V. UNITED STATES, 326 U.S. 572, 582, 587-588. 

FN9  CF. MCCULLOCH V. MARYLAND, 4 WHEAT., AT 422. 

FN10  CHILD LABOR TAX CASE, 259 U.S. 20, 34, 38; HILL V. WALLACE, 259
U.S. 44, 63, 70; UNITED STATES V. CONSTANTINE, 296 U.S. 287. 

FN11  BUT SEE LINDER V. UNITED STATES, 268 U.S. 5, 18; TRUSLER V.
CROOKS, 269 U.S. 475. 

FN12  26 U.S.C. SEC. 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. SEC. 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. SEC.
3270. 

FN13  CF. DAVIS V. UNITED STATES, 328 U.S. 582, 590; SHAPIRO V.
UNITED STATES, 335 U.S. 1, 35; SEE E. FOUGERA & CO. V. CITY OF NEW
YORK, 224 N.Y. 269, 281, 120 N.E. 642, 644. 

FN14  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. CURTISS-WRIGHT CORP., 299 U.S.
304, 330.  COMPARE UNITED STATES V. BEACON BRASS CO., 344 U.S. 43. 

FN15  26 U.S.C. (SUPP. V) SEC. 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
INURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER OR INDIVIDUAL." 

FN16  STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 584. 

MR. JUSTICE JACKSON, CONCURRING. 

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. 

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. 

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 LAWBREAKING.  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, IN WHAT SEEMED TO ME A FLAGRANT
VIOLATION OF IT.  SEE DISSENTING OPINION, ID., AT 70. 

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. 

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.    MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE
DOUGLAS CONCURS, DISSENTING. 

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) SECS. 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. 

*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, SECS. 4601,
4602, 4603. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

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. 

TO REVIEW IN DETAIL THE DECISIONS OF THIS COURT, BEGINNING WITH
VEAZIE BANK V. FENNO, 8 WALL.  533, 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, HAD
BEEN THE DECISION OF THE COURT, AS THEY BECAME IN UNITED STATES V.
DARBY, 312 U.S. 100, 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, 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. 

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, AT 38.  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. 

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. 

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. 

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, 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.  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. 

I WOULD AFFIRM THIS JUDGMENT. 

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. 
..END :













UNITED STATES V. RUMELY 345 U.S. 41 


NO. 87.  ARGUED DECEMBER 11-12, 1952 - DECIDED MARCH 9, 1953 - 90 U.S.
APP. D.C. 382, 197 F.2D 166, AFFIRMED. 


RESPONDENT WAS SECRETARY OF AN ORGANIZATION WHICH, AMONG OTHER THINGS,
ENGAGED IN THE SALE OF BOOKS OF A POLITICAL NATURE.  HE REFUSED TO
DISCLOSE TO A COMMITTEE OF CONGRESS THE NAMES OF THOSE WHO MADE BULK
PURCHASES OF THESE BOOKS FOR FURTHER DISTRIBUTION, AND WAS CONVICTED
UNDER R.S. SEC. 102, AS AMENDED, WHICH PROVIDES PENALTIES FOR REFUSAL
TO GIVE TESTIMONY OR TO PRODUCE RELEVANT PAPERS "UPON ANY MATTER" UNDER
CONGRESSIONAL INQUIRY.  UNDER THE RESOLUTION EMPOWERING IT TO FUNCTION,
THE COMMITTEE WAS "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."  HELD:  THE COMMITTEE WAS WITHOUT
POWER TO EXACT THE INFORMATION SOUGHT FROM RESPONDENT.  PP. 42-48. 

(A)  TO CONSTRUE THE RESOLUTION AS AUTHORIZING THE COMMITTEE 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,
WOULD RAISE DOUBTS OF CONSTITUTIONALITY IN VIEW OF THE PROHIBITION OF
THE FIRST AMENDMENT.  P. 46. 

(B)  THE PHRASE "LOBBYING ACTIVITIES" IN THE RESOLUTION IS TO BE
CONSTRUED AS LOBBYING IN THE COMMONLY ACCEPTED SENSE OF
"REPRESENTATIONS MADE DIRECTLY TO THE CONGRESS, ITS MEMBERS, OR ITS
COMMITTEES"; AND NOT AS EXTENDING TO ATTEMPTS "TO SATURATE THE THINKING
OF THE COMMUNITY."  P. 47. 

(C)  THE SCOPE OF THE RESOLUTION DEFINING RESPONDENT'S DUTY TO ANSWER
MUST BE ASCERTAINED AS OF THE TIME OF HIS REFUSAL AND CANNOT BE
ENLARGED BY SUBSEQUENT ACTION OF CONGRESS.  PP. 47-48. 

UNITED STATES V. RUMELY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT 

RESPONDENT WAS CONVICTED UNDER R.S. SEC. 102, AS AMENDED, 2 U.S.C.
SEC. 192, FOR REFUSAL TO GIVE CERTAIN INFORMATION TO A CONGRESSIONAL
COMMITTEE.  THE COURT OF APPEALS REVERSED.  90 U.S. APP. D.C. 382, 197
F.2D 166.  THIS COURT GRANTED CERTIORARI.  344 U.S. 812.  AFFIRMED, P.
48. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

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. SEC.
102, AS AMENDED, 52 STAT. 942, 2 U.S.C. SEC. 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.  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. 

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 FAR-REACHING 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: 

"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. 

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 WATER CO. V.
MCCARTER, 209 U.S. 349, 355.  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,
CHILD LABOR TAX CASE, 259 U.S. 20, 37, THAT DOES NOT SEE WHAT "ALL
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. 

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: 

"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. 

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
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, "IT IS OUR DUTY IN THE INTERPRETATION OF
FEDERAL STATUTES TO REACH A CONCLUSION WHICH WILL AVOID SERIOUS DOUBT
OF THEIR CONSTITUTIONALITY."  RICHMOND CO. V. UNITED STATES, 275 U.S.
331, 346.  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.  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, AND
CASES CITED. 

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'N V. AMERICAN TOBACCO CO., 264 U.S. 298.  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. 

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, 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, AND SINCLAIR V. UNITED STATES, 279
U.S. 263, STRONGLY COUNSEL ABSTENTION FROM ADJUDICATION UNLESS NO
CHOICE IS LEFT. 

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, 391, 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 NO 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, 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.  THE
CONSIDERATIONS WHICH PREVAILED IN THAT CASE SHOULD PREVAIL IN THIS. 

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.  (FN1)  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. 

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. 

THE JUDGMENT BELOW SHOULD BE AFFIRMED. 

FN1  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. 

MR. JUSTICE BURTON AND MR. JUSTICE MINTON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
CONCURRING. 

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.  SEC. 102, AS AMENDED, 52 STAT.
942, 2 U.S.C. SEC. 192.  (FN1)  THE COMMITTEE, KNOWN AS THE SELECT
COMMITTEE ON LOBBYING ACTIVITIES, WAS CREATED ON AUGUST 12, 1949, BY
HOUSE RESOLUTION 298 (FN2) WHICH PROVIDES IN PART AS FOLLOWS: 

"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."    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. 

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. SECS. 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. SECS. 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. 

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 AND THE WELFARE STATE, 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 TO 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.  (FN3) 

THE SELECT COMMITTEE STATED IN ITS REPORT: 

"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. 

"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. 

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: 

"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 OF
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. 

"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. 

"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. 

THE SELECT COMMITTEE SUBMITTED ITS REPORT TO THE HOUSE (96 CONG. REC.
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. 

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 (90 U.S. APP. D.C. 382, 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. 

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.  SEC. 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.  (FN4)  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. 

THE SELECT COMMITTEE TOOK THE SAME BROAD VIEW OF ITS AUTHORITY. 
(FN5)  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. 

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 TWOFOLD - 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. 

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. 

OF NECESSITY I COME THEN TO THE CONSTITUTIONAL QUESTION.  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.  THAT IS THE TRADITION BEHIND THE FIRST AMENDMENT. 
CENSORSHIP OR PREVIOUS RESTRAINT IS BANNED.  NEAR V. MINNESOTA, 283
U.S. 697.  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.
GRIFFIN, 303 U.S. 444) NOR TAXED.  MURDOCK V. PENNSYLVANIA, 319 U.S.
105.  DOOR TO DOOR DISTRIBUTION IS PRIVILEGED.  MARTIN V. STRUTHERS,
319 U.S. 141.  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. 

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 OMINOUS.  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, BOOK STORES, 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.  (FN6)  INQUIRY INTO PERSONAL AND PRIVATE AFFAIRS IS
PRECLUDED.  SEE KILBOURN V. THOMPSON, 103 U.S. 168, 190; MCGRAIN V.
DAUGHERTY, 273 U.S. 135, 173-174; SINCLAIR V. UNITED STATES, 279 U.S.
263, 292.  AND SO IS ANY MATTER IN RESPECT TO WHICH NO VALID
LEGISLATION COULD BE HAD.  KILBOURN V. THOMPSON, SUPRA, PP. 194-195;
MCGRAIN V. DAUGHERTY, SUPRA, P. 171.  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. 

FN1  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 JAIL FOR NOT
LESS THAN ONE MONTH NOR MORE THAN TWELVE MONTHS." 

FN2  H. RES. 298, 81ST CONG., 1ST SESS. 

FN3  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. 

FN4  "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. 

FN5  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. 

FN6  CF. BARSKY V. UNITED STATES, 83 U.S. APP. D.C. 127, 167 F.2D
241, CERTIORARI DENIED, 334 U.S. 843, REHEARING DENIED, 339 U.S. 971,
AND MARSHALL V. UNITED STATES, 85 U.S. APP.  D.C. 184, 176 F.2D 473,
CERTIORARI DENIED, 339 U.S. 933, REHEARING DENIED, 339 U.S. 959. 
..END :




















UNEXCELLED CHEMICAL CORP. V. UNITED STATES 345 U.S. 59 


NO. 293.  ARGUED JANUARY 9, 1953 - DECIDED MARCH 9, 1953 - 196 F.2D 264,
REVERSED. 


1.  AN ACTION BROUGHT BY THE UNITED STATES UNDER THE WALSH-HEALEY ACT
TO RECOVER LIQUIDATED DAMAGES FROM A GOVERNMENT CONTRACTOR WHO
KNOWINGLY EMPLOYED CHILD LABOR IN VIOLATION OF THE ACT IS SUBJECT TO
THE TWO-YEAR STATUTE OF LIMITATIONS CONTAINED IN SEC. 6 OF THE PORTAL
TO-PORTAL ACT OF 1947.  PP. 60-64. 

2.  WITHIN THE MEANING OF SEC. 6 OF THE PORTAL-TO-PORTAL ACT, THE
CAUSE OF ACTION IN THIS CASE "ACCRUED" WHEN THE MINORS WERE EMPLOYED,
NOT WHEN IT HAD BEEN ADMINISTRATIVELY DETERMINED THAT THE CONTRACTOR
WAS LIABLE TO THE UNITED STATES FOR LIQUIDATED DAMAGES.  PP. 65-66. 

3.  THAT THE POWER OF THE UNITED STATES TO SAFEGUARD THE PUBLIC
INTEREST MAY BE PREJUDICED DOES NOT JUSTIFY A CONSTRUCTION OF THE
STATUTE AT WAR WITH ITS CLEAR AND UNAMBIGUOUS WORDS.  P. 66. 

4.  FOR THE PURPOSE OF SEC. 6 OF THE PORTAL-TO-PORTAL ACT, AN ACTION
IS COMMENCED ON THE DATE WHEN THE COMPLAINT IN THE LAWSUIT IS FILED,
NOT WHEN THE ADMINISTRATIVE PROCEEDINGS UNDER THE WALSH-HEALEY ACT ARE
INITIATED.  P. 66. 

UNEXCELLED CHEMICAL CORP. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

AN ACTION BROUGHT AGAINST PETITIONER BY THE UNITED STATES UNDER THE
WALSH-HEALEY ACT WAS DISMISSED BY THE DISTRICT COURT AS BARRED BY
LIMITATIONS.  99 F. SUPP. 155.  THE COURT OF APPEALS REVERSED.  196
F.2D 264.  THIS COURT GRANTED CERTIORARI.  344 U.S. 862.  REVERSED, P.
66. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

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. SEC. 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, SEC. 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.  SEC. 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.  SEC. 2.  THE SECRETARY OF LABOR
ADMINISTERS THE ACT (SEE SEC. 4; ENDICOTT JOHNSON CORP. V. PERKINS, 317
U.S. 501, 507), MAKING INVESTIGATIONS AND FINDINGS (SEC. 4) AND ISSUING
COMPLAINTS AND HOLDING HEARINGS.  SEC. 5. 

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. 

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 SEC. 6 OF THE PORTAL-TO-PORTAL ACT OF 1947, 61 STAT. 84,
87, 29 U.S.C. (SUPP. V) SEC. 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 SEC. 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, 190 F.2D 204, AND UNITED STATES V.
LOVKNIT MFG. CO., 189 F.2D 454, FROM THE COURTS OF APPEALS OF THE
FOURTH AND FIFTH CIRCUITS RESPECTIVELY. 

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." 

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, 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. SEC. 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 SEC.
1(A) OF THE PORTAL-TO-PORTAL ACT.  (FN1)  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. 

WE DO NOT STOP TO LAY OUT THE ENTIRE LEGISLATIVE HISTORY OF THE
PORTAL-TO-PORTAL ACT.  FOR THE WORDS CONGRESS USED IN SEC. 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. SEC. 216(B).  THAT IS DOUBTLESS WHY SEC. 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. 
(FN2)  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.  (FN3)  IT IS
NOT FOR US THEN TO TRY TO AVOID THE CONCLUSION 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. 

RESPONDENT ARGUES THAT EVEN IF THIS CAUSE OF ACTION IS SUBJECT TO THE
TWO-YEAR STATUTE OF LIMITATIONS CONTAINED IN SEC. 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. 

WE TAKE THE OPPOSING VIEW.  WE CONCLUDE THAT "THE CAUSE OF ACTION
ACCRUED," WITHIN THE MEANING OF SEC. 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.  SECS. 4, 5.  HE
HAS AUTHORITY TO PROSCRIBE THOSE WHO HAVE VIOLATED THE ACT, BARRING
THEM FROM GOVERNMENT CONTRACTS FOR THREE YEARS.  SEC. 3.  MONEYS
WITHHELD AS LIQUIDATED DAMAGES ARE PLACED IN A SPECIAL FUND AND PAID ON
ORDER OF THE SECRETARY OF LABOR TO THE EMPLOYEES.  SEC. 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.  (FN4)  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; THOMPSON V. TEXAS MEXICAN R. CO., 328 U.S. 134; GENERAL AMERICAN
TANK CORP. V. EL DORADO TERMINAL CO., 308 U.S. 422; UNITED STATES V.
MORGAN, 307 U.S. 183) 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. 

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. 

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 SEC. 7, WAS ADDRESSING ITSELF TO
LAWSUITS IN THE CONVENTIONAL SENSE.  COMMENCEMENT OF AN ACTION BY THE
FILING OF A COMPLAINT HAS TOO FAMILIAR A HISTORY AND THE PURPOSE OF
SECS. 6 AND 7 WAS TOO OBVIOUS FOR US TO ASSUME THAT CONGRESS DID NOT
MEAN TO USE THE WORDS IN THEIR ORDINARY SENSE.  REVERSED. 

FN1  "SECTION 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
EARNING POWER OF EMPLOYEES; (2) THE CREDIT OF MANY EMPLOYERS WOULD BE
SERIOUSLY IMPAIRED; (3) THERE WOULD BE CREATED BOTH AND EXTENDED AND
CONTINUOUS UNCERTAINTY OF 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
INTERFERED 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 THE 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."    FN2  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 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." 

FN3  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 SHALL 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 OF THE CONTRACTOR OF THE WITHHOLDING OR RECOVERY OF
SUCH SUMS BY THE UNITED STATES OF AMERICA."  SEC. 2. 

FN4  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." 
..END :




FOWLER V. RHODE ISLAND 345 U.S. 67 


NO. 340.  ARGUED FEBRUARY 3, 1953 - DECIDED MARCH 9, 1953 - 80 R.I. - ,
91 A.2D 27, REVERSED. 


A MUNICIPAL ORDINANCE WHICH IS SO CONSTRUED AND APPLIED AS TO PENALIZE
A MINISTER OF JEHOVAH'S WITNESSES FOR PREACHING AT A PEACEFUL RELIGIOUS
MEETING IN A PUBLIC PARK, ALTHOUGH OTHER RELIGIOUS GROUPS COULD CONDUCT
RELIGIOUS SERVICES THERE WITH IMPUNITY, VIOLATES THE FIRST AND
FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION.  PP. 67-70. 

FOWLER V. RHODE ISLAND. 

APPEAL FROM THE SUPREME COURT OF RHODE ISLAND. 

APPELLANT'S CONVICTION FOR VIOLATION OF A MUNICIPAL ORDINANCE WAS
AFFIRMED BY THE STATE SUPREME COURT.  80 R.I. - , 91 A.2D 27.  ON
APPEAL TO THIS COURT UNDER 28 U.S.C. SEC. 1257(2), REVERSED AND
REMANDED, P. 70. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE CITY OF PAWTUCKET, RHODE ISLAND, HAS AN ORDINANCE WHICH READS AS
FOLLOWS: 

"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." 

JEHOVAH'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 MINISTER 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. 

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 HAD 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.  80 R.I. - ,
91 A.2D 27.  AND SEE FOWLER V. STATE, 79 R.I. 16, 83 A.2D 67, AN
EARLIER OPINION ANSWERING CERTIFIED QUESTIONS AND HOLDING THE ORDINANCE
VALID.  THE CASE IS HERE ON APPEAL.  28 U.S.C.  SEC. 1257(2). 

DAVIS V. MASSACHUSETTS, 167 U.S. 43, 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 HAND 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. 

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. MARYLAND, 340 U.S. 268, 272-273,
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. 

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; DAVIS V. BEASON, 133 U.S. 333) 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 MINISTER 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 FACT 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. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE SUPREME
COURT OF RHODE ISLAND FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

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. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 
..END :















NATIONAL LABOR RELATIONS BOARD V. ROCKAWAY NEWS SUPPLY CO., INC. 345
U.S. 71 


NO. 318.  ARGUED JANUARY 14, 1953 - DECIDED MARCH 9, 1953 - 197 F.2D
111, AFFIRMED. 


1.  RESPONDENT DISCHARGED AN EMPLOYEE FOR REFUSING TO CROSS, IN THE
PERFORMANCE OF HIS DUTIES, A LAWFUL PICKET LINE MAINTAINED AT PREMISES
OTHER THAN HIS EMPLOYER'S BY A UNION OF WHICH HE WAS NOT A MEMBER.  HIS
OWN UNION HAD NOT FORBIDDEN HIM TO CROSS THE LINE, AND HIS FELLOW
EMPLOYEES DID CROSS IT.  THEIR UNION HAD A 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 OF AN ADJUSTMENT BOARD FOR WHICH IT PROVIDED.  ON
ARBITRATION, THIS ADJUSTMENT BOARD DECIDED IN FAVOR OF RESPONDENT.  THE
EMPLOYEE THEN FILED WITH THE NATIONAL LABOR RELATIONS BOARD A CHARGE
THAT HIS DISCHARGE VIOLATED SEC. 8(A) OF THE NATIONAL LABOR RELATIONS
ACT.  THERE WAS NO EVIDENCE THAT IT RESULTED FROM ANTIUNION BIAS OR WAS
INTENDED TO DISCOURAGE HIS MEMBERSHIP IN THE UNION.  HELD:  IN THE
CIRCUMSTANCES OF THIS CASE, RESPONDENT'S DISCHARGE OF THIS EMPLOYEE WAS
NOT AN UNFAIR LABOR PRACTICE UNDER SEC. 8(A) OF THE ACT.  PP. 72-81. 

2.  IN ISSUING A CEASE AND DESIST ORDER AGAINST RESPONDENT IN THIS
CASE, THE NATIONAL LABOR RELATIONS BOARD ERRED IN IGNORING RESPONDENT'S
CONTRACT WITH THE UNION ON THE GROUND THAT IT WAS UTTERLY NULL AND VOID
UNDER THE BOARD'S RECENT DECISION IN ANOTHER CASE, WHICH WAS DECIDED
AFTER THE DISCHARGE OF THE EMPLOYEE HERE INVOLVED.  PP. 76-78. 

3.  THE NO-STRIKE AND ARBITRATION PROVISIONS OF RESPONDENT'S CONTRACT
WITH THE EMPLOYEE'S UNION ARE NOT UNLAWFUL, NOR, IN THE CIRCUMSTANCES
OF THIS CASE AND IN VIEW OF THE SAVINGS AND SEPARABILITY CLAUSES OF THE
CONTRACT, WERE THEY RENDERED ILLEGAL BY APPEARING IN THE SAME CONTRACT
WITH FORBIDDEN PROVISIONS FOR UNION SECURITY NOT EXPRESSLY CONDITIONED
ON A VOTE OF EMPLOYEES UNDER SEC. 9(E) OF THE LABOR MANAGEMENT
RELATIONS ACT.  PP. 78-81. 

NATIONAL LABOR RELATIONS BOARD V. ROCKAWAY NEWS SUPPLY CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE NATIONAL LABOR RELATIONS BOARD ORDERED RESPONDENT TO CEASE AND
DESIST FROM LABOR PRACTICES WHICH IT FOUND VIOLATIVE OF SEC. 8(A) OF
THE NATIONAL LABOR RELATIONS ACT, TO REINSTATE A DISCHARGED EMPLOYEE,
AND TO POST APPROPRIATE NOTICES.  95 N.L.R.B. 336.  THE COURT OF
APPEALS SET ASIDE THE ORDER.  197 F.2D 111.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 863.  AFFIRMED, P. 81. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

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, (FN1) AND WE GRANTED
CERTIORARI.  (FN2) 

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 SEC. 9(E) OF THE LABOR MANAGEMENT RELATIONS ACT, AN OMISSION
WHICH RAISED QUESTIONS AS TO THE VALIDITY OF THE CLAUSE AND OF THE
CONTRACT AS A WHOLE. 

THE NASSAU COUNTY TYPOGRAHICAL 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 REEMPLOYMENT
WHICH WAS REFUSED.  WAUGH HAD BEEN WILLING TO PERFORM ALL DUTIES
PROVIDED HE WAS NOT REQUIRED PERSONALLY TO CROSS THE PICKET LINE. 

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 INTEREFERENCE 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.  (FN3)  WAUGH THEN FILED THE
CHARGE OF UNFAIR LABOR PRACTICE AND THE GENERAL COUNSEL INITIATED THESE
PROCEEDINGS. 

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: 

"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." 

THE COURT OF APPEALS SAID, "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 LABOR BOARD V. MACKAY CO., 304 U.S. 333, 347.  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. 

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. 

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 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 NOSTRIKE
CLAUSE OF THAT CONTRACT CAN HAVE NO IMPACT UPON WAUGH'S REFUSAL TO
CROSS THE PICKET LINE." 

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 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.  (FN4)  THE RULING
THAT THE CONTRACT IS WITHOUT EFFECT WAS REEXAMINED IN THESE PROCEEDINGS
AND READOPTED AS AN ESSENTIAL PART OF THE DECISION IN THIS CASE. 

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. 

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. 

WE THINK THE PRINCIPLE IS APPLICABLE HERE, WHICH MR. CHIEF JUSTICE
HUGHES STATED FOR A UNANIMOUS COURT: 

"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
VALIDITY 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. 

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.  (FN5)  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 UNION-SECURITY PROVISION WAS TO BE CONDITIONED UPON
COMPLIANCE WITH THE PROVISIONS OF SECTION 9(E) OF THE ACT."  (FN6) 

THE FEATURES TO WHICH THE BOARD RIGHTLY OBJECTS NOT ONLY MAY BE
SEVERED BUT ARE SEPARATED IN THE CONTRACT.  THE WHOLE CONTRACT SHOWS
RESPECT FOR THE LAW AND NOT DEFIANCE 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 UNEMPLOYMENT, HIS DISCHARGE, OR
ANY CONDUCT OF ANY PARTY THAT IS RELEVANT TO THIS DECISION. 

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. 

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 TERM 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." 

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  ...  ."  (FN7)  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 MADE
GROUNDS FOR HIS DISCHARGE WITHOUT VIOLATING SEC. 7 OF THE ACT.  LABOR
BOARD V. SANDS CO., 306 U.S. 332, 334.   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. LABOR BOARD, 321 U.S. 332. 

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. 

FN1  197 F.2D 111. 

FN2  344 U.S. 863. 

FN3  "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
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." 

FN4  SEE WALLACE CORP. V. LABOR BOARD, 323 U.S. 248. 

FN5  "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 THE AGREEMENT
SHALL, NEVERTHELESS, REMAIN IN FULL FORCE AND EFFECT." 

FN6  29 U.S.C. SEC. 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." 

FN7  61 STAT. 142, 29 U.S.C. SEC. 158(B)(4)(D). 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MINTON CONCUR, DISSENTING. 

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
LINE 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 SEC. 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. 

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
THIS 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 SEC. 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. 
..END :












ORLOFF V. WILLOUGHBY 345 U.S. 83 


NO. 444.  ARGUED JANUARY 13, 1953 - DECIDED MARCH 9, 1953 - 195 F.2D
209, AFFIRMED. 


PETITIONER, A PHYSICIAN EDUCATED AT GOVERNMENT EXPENSE AND BEYOND THE
USUAL DRAFT AGE, WAS INDUCTED INTO THE ARMY UNDER THE DOCTORS' DRAFT
LAW, 50 U.S.C. APP. SEC. 454(I), WHICH AUTHORIZES SPECIAL CONSCRIPTION
OF CERTAIN "MEDICAL AND ALLIED SPECIALIST CATEGORIES."  BECAUSE OF HIS
REFUSAL, ON GROUNDS OF POSSIBLE SELF-INCRIMINATION, TO STATE IN
CONNECTION WITH HIS APPLICATION FOR A COMMISSION WHETHER HE WAS OR HAD
BEEN A MEMBER OF THE COMMUNIST PARTY, HE WAS NOT COMMISSIONED OR GIVEN
THE USUAL DUTIES OF AN ARMY DOCTOR, BUT WAS ASSIGNED DUTIES AS A
MEDICAL LABORATORY TECHNICIAN.  HE APPLIED TO A FEDERAL COURT FOR A
WRIT OF HABEAS CORPUS AND FOR DISCHARGE FROM THE ARMY, ON THE GROUND
THAT HE HAD NOT BEEN ASSIGNED THE SPECIALIZED DUTIES OR GIVEN THE
COMMISSIONED RANK TO WHICH HE CLAIMS TO BE ENTITLED BY THE
CIRCUMSTANCES OF HIS INDUCTION.  HELD: 

1.  ALTHOUGH NOT BOUND BY IT, THIS COURT AGREES WITH THE GOVERNMENT'S
CONCESSION THAT THE ACT SHOULD BE INTERPRETED TO OBLIGATE THE ARMY TO
CLASSIFY SPECIALLY INDUCTED PROFESSIONAL PERSONNEL FOR DUTY WITHIN THE
CATEGORIES WHICH RENDERED THEM LIABLE FOR INDUCTION.  PP. 87-88. 

2.  IT CANNOT BE FOUND THAT PETITIONER IS ENTITLED TO A COMMISSION AS
A MATTER OF LAW.  PP. 88-92. 

(A)  NEITHER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT NOR THE
ARMY REORGANIZATION ACT REQUIRES THAT ALL PERSONNEL INDUCTED UNDER THE
DOCTORS' DRAFT ACT AND ASSIGNED TO THE MEDICAL CORPS BE EITHER
COMMISSIONED OR DISCHARGED.  PP. 88-89. 

(B)  THE COMMISSIONING OF OFFICERS IN THE ARMY IS A MATTER OF
DISCRETION WITHIN THE PROVINCE OF THE PRESIDENT AS COMMANDER IN CHIEF,
OVER WHICH THE COURTS HAVE NO CONTROL.  P. 90. 

(C)  THE PRESIDENT IS NOT REQUIRED TO APPOINT TO A POSITION OF HONOR
AND TRUST ANY PERSON WHO REFUSES, ON GROUNDS OF SELF-INCRIMINATION, TO
SAY WHETHER HE IS OR HAS BEEN A MEMBER OF THE COMMUNIST PARTY.  PP. 89
92. 

3.  ONE LAWFULLY INDUCTED INTO THE ARMY MAY NOT, THROUGH HABEAS
CORPUS PROCEEDINGS, OBTAIN A JUDICIAL REVIEW OF HIS ASSIGNMENTS TO
DUTY.  PP. 92-94. 

4.  PETITIONER IS NOT BEING HELD IN THE ARMY UNLAWFULLY, AND THE
COURTS MAY NOT REQUIRE HIS DISCHARGE THEREFROM IN A HABEAS CORPUS
PROCEEDING.  PP. 94-95. 

ORLOFF V. WILLOUGHBY, COMMANDANT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

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. SEC. 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. 

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 THE 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. 

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. 

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 EXCECUTIVE
ORDER 9835," THAT THE COURT WAS WITHOUT JURISDICTION, AND THAT HABEAS
CORPUS DOES NOT LIE FOR THE PURPOSE OF THE CASE. 

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. 

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. 

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 ASSIGNMENTS FOR SUCH INDUCTEES WAS A MATTER OF MILITARY
DISCRETION.  THE COURT AGREED AND ON THAT GROUND AFFIRMED.  (FN1) 

WE GRANTED CERTIORARI, (FN2) 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. 

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. 

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 FROM 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 CATERGORIES 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. 

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.A. SEC. 91.   BUT IN 1950 CONGRESS REPEALED SEC. 91
AND SUBSTITUTED IN ITS PLACE THE FOLLOWING LANGUAGE:  "THE MEDICAL
CORPS  ...  SHALL CONSIST OF REGUALR 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. SEC.
81-1.  10 U.S.C. SEC. 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. 

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. 

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." 

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 MEETING 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." 

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. 

THE PRESIDENT COMMISSIONS ALL ARMY OFFICERS.  5 U.S.C. SEC. 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.  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. 

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. 

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 IS 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. 

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? 

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."    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. 

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 ALLED 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? 

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. 

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 HIS 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. 

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. 

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. 

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. 

WE SEE NOTHING TO BE ACCOMPLISHED BY RETURNING THIS CASE FOR FURTHER
LITIGATION.  THE JUDGMENT IS AFFIRMED. 

FN1  195 F.2D 209. 

FN2  344 U.S. 873. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

I AGREE WITH MR. JUSTICE FRANKFURTER'S DISSENT. 

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. 

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. 

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) SEC. 81-1 AND SEC. 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. 

*THE GOVERNMENT ADMITS THAT SUCH HAS BEEN THE PRACTICE SINCE THE ACT
OF FEBRUARY 11, 1847, 9 STAT. 123, 124-125. 

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. 

THIS RECORD INDICATES TO ME, HOWEVER, THAT DR. ORLOFF IS BEING HELD
IN THE ARMY NOT TO USED AS A MEDICAL PRACTITIONER, BUT TO BE TREATED AS
A KING OF PARIAH 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. 

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. 

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. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

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. 

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) SEC. 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 AS 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 PROVISION. 
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. 
*COMPARE PETITION FOR WRIT OF HABEAS CORPUS, PAR. 7, R. 2, WITH ANSWER
TO PETITION FOR WRIT OF HABEAS CORPUS, PAR. VII, R. 8-9; SEE R. 23-24. 

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 LIKE 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. 
..END :
























AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION V. NATIONAL LABOR RELATIONS
BOARD 345 U.S. 100 


NO. 53.  ARGUED NOVEMBER 19, 1952 - DECIDED MARCH 9, 1953 - 193 F.2D
782, AFFIRMED. 


A LABOR ORGANIZATION DOES NOT ENGAGE IN AN UNFAIR LABOR PRACTICE,
WITHIN THE MEANING OF SEC. 8(B)(6) OF THE NATIONAL LABOR RELATIONS ACT,
AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, WHEN IT INSISTS
THAT NEWSPAPER PUBLISHERS PAY PRINTERS FOR REPRODUCING ADVERTISING
MATTER FOR WHICH THE PUBLISHERS ORDINARILY HAVE NO USE.  PP. 101-111. 

(A)  THE LANGUAGE AND LEGISLATIVE HISTORY OF SEC. 8(B)(6) SUPPORT THE
CONCLUSION THAT THE LABOR ORGANIZATION'S INSISTENCE UPON SECURING
PAYMENT OF WAGES TO PRINTERS FOR "SETTING BOGUS" IS NOT AN "UNFAIR
LABOR PRACTICE" WITHIN THE MEANING OF THE SECTION.  PP. 105-111. 

(B) THE LABOR MANAGEMENT RELATIONS ACT'S CONDEMNATION OF
"FEATHERBEDDING" PRACTICES IS LIMITED TO INSTANCES WHERE A LABOR
ORGANIZATION OR ITS AGENTS EXACT PAY FROM AN EMPLOYER FOR SERVICES NOT
PERFORMED OR NOT TO BE PERFORMED.  P. 110. 

(C)  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 IS NOT AN UNFAIR LABOR PRACTICE UNDER
THE STATUTE.  P. 110. 

(D)  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.  P. 111. 

AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION V. NATIONAL LABOR RELATIONS
BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN AN UNFAIR LABOR PRACTICE PROCEEDING, PETITIONER'S CHARGES UNDER
SEC. 8(B)(6) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE
LABOR MANAGEMENT RELATIONS ACT, 1947, WERE DISMISSED BY THE BOARD.  86
N.L.R.B. 951.  THE COURT OF APPEALS AFFIRMED.  193 F.2D 782.  THIS
COURT GRANTED A LIMITED CERTIORARI.  344 U.S. 812.  AFFIRMED, P. 111. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER A LABOR ORGANIZATION ENGAGES IN AN
UNFAIR LABOR PRACTICE, WITHIN THE MEANING OF SEC. 8(B)(6) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT, 1947, (FN1) 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. 

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. 

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 SEC. 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.  (FN2)  THE REGIONAL DIRECTOR OF THE
BOARD ISSUED ITS COMPLAINT, INCLUDING A CHARGE OF ENGAGING IN AN UNFAIR
LABOR PRACTICE AS DEFINED IN SEC. 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. 

THE TRIAL EXAMINER RECOMMENDED THAT ITU BE ORDERED TO CEASE AND
DESIST FROM SEVERAL OF ITS ACTIVITIES BUT THAT THE "FEATHERBEDDING"
CHARGES UNDER SEC. 8(B)(6) BE DISMISSED.  86 N.L.R.B. 951, 964, 1024
1033.  THE BOARD DISMISSED THOSE CHARGES.  ID., AT 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
SEC. 8(B)(6).  193 F.2D 782, 796, 802.  SEE ALSO, 190 F.2D 45.  A
COMPARABLE VIEW WAS EXPRESSED IN RABOUIN V. LABOR BOARD, 195 F.2D 906,
912-913 (C.A.2D CIR.), BUT A CONTRARY VIEW WAS TAKEN IN GAMBLE
ENTERPRISES V. LABOR BOARD, 196 F.2D 61 (C.A. 6TH CIR.).  BECAUSE OF
THIS CLAIMED CONFLICT UPON AN IMPORTANT ISSUE OF FIRST IMPRESSION, WE
GRANTED CERTIORARI IN THE INSTANT CASE, 344 U.S. 812, (FN3) AND IN
LABOR BOARD V. GAMBLE ENTERPRISES, 344 U.S. 814.  OUR DECISION IN THE
GAMBLE CASE FOLLOWS THIS, POST, P. 117.  (FN4) 

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 COMPENSATION 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. 

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. 

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 IT 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.  (FN5)  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. 

BEFORE THE ENACTMENT OF SEC. 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? 

WHILE THE LANGUAGE OF SEC. 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: 

"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) SEC.
158(B)(6). 

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. 

HOWEVER DESIRABLE THE ELIMINATION OF ALL INDUSTRIAL FEATHERBEDDING
PRACTICES MAY HAVE APPEARED TO CONGRESS, THE LEGISLATIVE HISTORY OF THE
TAFT-HARTLEY ACT DEMONSTRATES THAT WHEN THE LEGISLATION WAS PUT IN
FINAL FORM CONGRESS DECIDED TO LIMIT THE PRACTICE BUT LITTLE BY LAW. 

A RESTRAINING INFLUENCE THROUGHOUT THIS CONGRESSIONAL CONSIDERATION
OF 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.  ITS
MATERIAL PROVISIONS ARE STATED IN THE MARGIN.  (FN6)  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, 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.  (FN7) 

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 SEC. 8(B)(6) IN PLACE OF THE DETAILED FEATHERBEDDING
PROVISIONS OF THE HOUSE BILL, THAT STATEMENT SAID: 

"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.  (FN8) 

ON THE SAME DAY THIS WAS AMPLIFIED IN THE SENATOR'S ORAL STATEMENT ON
THE FLOOR OF THE SENATE: 

"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-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.  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. 

AS INDICATED ABOVE, THE TAFT-HARTLEY BILL, H.R. 3020, WHEN IT PASSED
THE HOUSE, APRIL 17, 1947, CONTAINED IN SECS. 2(17) AND 12(A)(3)(B) AN
EXPLICIT CONDEMNATION OF FEATHERBEDDING.  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." 
(FN9) THE SUBSTITUTION OF THE PRESENT SEC. 8(B)(6) FOR THAT DEFINITION
COMPELS THE CONCLUSION THAT SEC. 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. 

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 SEC.
8(B)(6).  JUNE 5, 1947, IN A COLLOQUY ON THE FLOOR OF THE SENATE HE
SAID IN REFERENCE TO SEC. 8(B)(6):    "IT 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. 

IN THAT ILLUSTRATION THE SERVICE FOR WHICH PAY WAS TO BE EXACTED WAS
NOT PERFORMED AND WAS NOT TO BE PERFORMED BY ANYONE.  (FN10)  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. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS SUSTAINING
DISMISSAL OF THE COMPLAINT, INSOFAR AS IT WAS BASED UPON SEC. 8(B)(6),
IS AFFIRMED. 

FN1  "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) SEC.
158(B)(6). 

FN2  49 STAT. 449, 29 U.S.C. SEC. 151 ET SEQ., AS AMENDED, 61 STAT.
140-142, 29 U.S.C.  (SUPP. V) SEC. 158(B)(1), (2) AND (6). 

FN3  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." 

FN4 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. 

FN5  IN METROPOLITAN AREAS, ONLY THE PRINTERS ON THE "AD SIDE" 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 & CHRONICLE COST OVER $5,000 A YEAR, AT THE CHICAGO HERALD
AMERICAN, ABOUT $50,000, AND AT THE NEW YORK TIMES, ABOUT $150,000. 

FN6  "SEC.  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. SEC.
506(A)(C)(D). 

FN7  FOR A REPORT OF THE SUBSEQUENT TRIAL AND ACQUITTAL ON THE
MERITS, SEE UNITED STATES V. PETRILLO, 75 F. SUPP. 176. 

FN8  IN ITS REPORT OF DECEMBER 31, 1948, THE JOINT COMMITTEE ON LABOR
MANAGEMENT RELATIONS, ESTABLISHED UNDER SEC. 401 OF THE TAFT-HARTLEY
ACT, LATER REVIEWED THE LITIGATION ARISING UNDER SEC. 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, 80TH 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). 

FN9  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. 

FN10  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. 

MR. JUSTICE DOUGLAS, DISSENTING. 

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 "FEATHERBEDDING."  CONGRESS, TO BE SURE, DID
NOT OUTLAW ALL "FEATHERBEDDING" 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 LABOR BOARD V. GAMBLE ENTERPRISES, INC., POST, P. 117. 

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. 

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. 

THE OUTLAWRY OF THIS PRACTICE UNDER SEC. 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. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

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 MATERIEL, THE COURT CONCEDES, AS IT MUST, THAT SEC. 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. 

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."  (FN1)  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 SEC. 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 SHADOWBOXING ON OR OFF THE PLANT TO PRODUCTIVE EFFORT DEEMED
BENEFICIAL TO THE EMPLOYER IN HIS JUDGMENT ALONE. 

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 SEC. 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 SEC. 8(B)(6), THIS
COURT'S FIRST DECISION ON "FEATHERBEDDING" MAY WELL BE THE LAST. 

CONCEDEDLY, SEC. 8(B)(6) WAS NOT DESIGNED TO BAN EVERY MAKE-WORK
DEVICE INGENUITY COULD SPAWN.  SENATOR TAFT, THE PRIME EXPONENT OF THE
LEGISLATION BE HELD IN ABEYANCE PENDING THIS COURT'S DECISION IN UNITED
STATES V. PETRILLO.  (FN2)  MEANWHILE, HOWEVER, SEC. 8(B)(6) AIMED TO
CATCH PRACTICES BY WHICH UNIONS "ACCEPT MONEY FOR PEOPLE WHO DO NOT
WORK."  (FN3)  HE CONSIDERED IT A "PERFECTLY CLEAR" VIOLATION OF THE
INSIST THAT THERE IS ROOM FOR ONLY 6, YOU MUST PAY FOR THE OTHER 4
ANYWAY.'"  (FN4)  BUT SURELY THIS CANNOT IMPLY THAT SIX MUST PACK THE
PLANT TO OVERFLOW SO THAT "THE OTHER 4" MUST STAY HOME BEFORE SEC.
8(B)(6) MAY APPLY.  THAT QUAINT NOTION BEFOGS THE DRAFTSMEN'S CLEAR
INTENT THAT SEC. 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."  (FN5)   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.  (FN6)  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 SEC. 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, 321 U.S. 590, 598-599 (1944); JEWELL RIDGE COAL CORP. V. LOCAL
NO. 6167, 325 U.S. 161, 165-166 (1945); ANDERSON V. MT. CLEMENS POTTERY
CO., 328 U.S. 680, 691-693 (1946).  AND THE LABOR BOARD SHOULD NOT SO
MODESTLY DISCLAIM ITS OFT-RECOGNIZED EXPERTISE WHICH ASSURES FULL
QUALIFICATIONS FOR ADMINISTERING THIS TASK. 

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. 

FN1  29 U.S.C. (SUPP. V) SEC. 158(B)(6). 

FN2  332 U.S. 1 (1947).  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. SEC. 506, WHICH
BANNED VARIOUS "FEATHERBEDDING" PRACTICES PLAGUING BROADCAST
LICENSEES. 

FN3  93 CONG. REC. 6441. 

FN4  93 CONG. REC. 6446. 

FN5  IBID. 

FN6  SEE 93 CONG. REC. 6441, 6443. 
..END :




















NATIONAL LABOR RELATIONS BOARD V. GAMBLE ENTERPRISES, INC. 345 U.S. 117 



NO. 238.  ARGUED NOVEMBER 19, 1952 - DECIDED MARCH 9, 1953 - 196 F.2D
61, REVERSED. 


A LABOR ORGANIZATION DOES NOT ENGAGE IN AN UNFAIR LABOR PRACTICE,
WITHIN THE MEANING OF SEC. 8(B)(6) OF THE NATIONAL LABOR RELATIONS ACT,
AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, WHEN IT INSISTS
THAT THE MANAGEMENT OF ONE OF AN INTERSTATE CHAIN OF THEATRES SHALL
EMPLOY A LOCAL ORCHESTRA TO PLAY IN CONNECTION WITH CERTAIN PROGRAMS,
ALTHOUGH THAT MANAGEMENT DOES NOT NEED OR WANT TO EMPLOY THAT
ORCHESTRA.  AMERICAN NEWSPAPER PUBLISHERS ASSN. V. LABOR BOARD, ANTE,
P. 100.  PP. 118-124. 

(A)  THIS COURT IN THIS CASE ACCEPTS 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.  P. 123. 

(B)  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.  PP. 123-124. 

NATIONAL LABOR RELATIONS BOARD V. GAMBLE ENTERPRISES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

IN AN UNFAIR LABOR PRACTICE PROCEEDING, RESPONDENT'S CHARGES UNDER
SEC. 8(B)(6) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE
LABOR MANAGEMENT RELATIONS ACT, 1947, WERE DISMISSED BY THE BOARD.  92
N.L.R.B. 1528.  THE COURT OF APPEALS SET ASIDE THE BOARD'S ORDER OF
DISMISSAL AND REMANDED THE CAUSE.  196 F.2D 61.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 814.  REVERSED AND REMANDED, P. 124. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A COMPANION TO AMERICAN NEWSPAPER PUBLISHERS ASSN. V.
LABOR BOARD, ANTE, P. 100. 

THE QUESTION HERE IS WHETHER A LABOR ORGANIZATION ENGAGES IN AN
UNFAIR LABOR PRACTICE, WITHIN THE MEANING OF SEC. 8(B)(6) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT, 1947, (FN1) 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. 

WHILE THE CIRCUMSTANCES DIFFER FROM THOSE IN THE PRECEDING CASE, THE
INTERPRETATION THERE GIVEN TO SEC. 8(B)(6) IS CONTROLLING HERE. 

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.  (FN2) 

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, SEC. 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." 
(FN3) 

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. 

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. 

THE TAFT-HARTLEY ACT, CONTAINING SEC. 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. 

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.  (FN4)  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. 

IN 1949, RESPONDENT FILED CHARGES WITH THE NATIONAL LABOR RELATIONS
BOARD ASSERTING THAT THE UNION WAS ENGAGING IN THE UNFAIR LABOR
PRACTICE DEFINED IN SEC. 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.  ID., AT 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.  ID., AT 1528-1529. 
IT SAID: 

"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. 

     *  *         *         *         * 

"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). 

"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."  ID., AT 1531, 1533-1534. 

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 SEC. 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, ANTE, P. 100,
WE GRANTED CERTIORARI.  344 U.S. 814.  WE DENIED THE UNION'S MOTION TO
INTERVENE, 344 U.S. 872, BUT, WITH THE CONSENT OF THE PARTIES, IT FILED
A BRIEF AS AMICUS CURIAE, SUPPORTING THE BOARD. 

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 SEC.
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. 

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 SEC.
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 SEC.
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.  (FN5) 

THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS REVERSED AND
THE CAUSE IS REMANDED TO IT. REVERSED AND REMANDED. 

FN1  "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) SEC.
158(B)(6). 

FN2  COUNTRYMAN, THE ORGANIZED MUSICIANS, 16 U. OF CHI.  L. REV. 56
85, 239-297. 

FN3  ARTICLE 18, SEC. 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." 

FN4  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. 

FN5  IN ADDITION TO THE LEGISLATIVE HISTORY CITED IN THE AMERICAN
NEWSPAPER CASE, THE FOLLOWING EXPLANATION BY SENATOR BALL EMPHASIZES
THE POINT THAT SEC. 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 (SEC. 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."  93
CONG. REC. 7529. 

MR. JUSTICE JACKSON, DISSENTING. 

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) SEC. 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.    ACCEPTING THE
RESULT IN NO. 53, AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION V. LABOR
BOARD, ANTE, P. 100, I THINK THAT DIFFERENCES IN THIS CASE REQUIRE A
CONTRARY RESULT. 

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. 

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. 

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." 

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. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THE CHIEF JUSTICE AND I DISSENT ON THE BASIS OF OUR DISSENTING OPINION
IN AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION V. LABOR BOARD, ANTE, P.
100.  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
SEC. 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., 308 U.S. 241, 250-251 (1939); TENNESSEE COAL, IRON &
R. CO. V. MUSCODA LOCAL, 321 U.S. 590, 601-602 (1944); JEWELL RIDGE
COAL CORP. V. LOCAL NO. 6167, 325 U.S. 161, 167 (1945). 
..END :
















RAMSPECK V. FEDERAL TRIAL EXAMINERS CONFERENCE 345 U.S. 128 


NO. 278.  ARGUED JANUARY 9, 12, 1953 - DECIDED MARCH 9, 1953 - 91 U.S.
APP. D.C. 164, 202 F.2D 312, REVERSED. 


CERTAIN PROVISIONS OF REGULATIONS PROMULGATED BY THE CIVIL SERVICE
COMMISSION UNDER SEC. 11 OF THE ADMINISTRATIVE PROCEDURE ACT AND
GOVERNING THE CLASSIFICATION, PROMOTION, COMPENSATION AND TENURE OF
TRIAL EXAMINERS AND THE ASSIGNMENT OF CASES TO THEM ARE HERE SUSTAINED
AS CONFORMING TO THE STATUTE AND CARRYING OUT THE PURPOSE AND INTENT OF
CONGRESS.  PP. 129-143. 

1.  THE PROVISION OF SEC. 11 OF THE ACT THAT HEARING EXAMINERS SHALL
RECEIVE COMPENSATION PRESCRIBED BY THE COMMISSION "IN ACCORDANCE WITH
THE CLASSIFICATION ACT" AUTHORIZES THE COMMISSION TO ESTABLISH MORE
THAN ONE SALARY GRADE FOR HEARING EXAMINERS EMPLOYED BY A PARTICULAR
AGENCY; AND SEC. 34.10 OF THE REGULATIONS IS VALID.  PP. 134-137. 

2.  SECTION 34.4 OF THE REGULATIONS, WHICH PROVIDES FOR THE PROMOTION
OF INDIVIDUAL HEARING EXAMINERS AND GIVES THE AGENCY A CHOICE AS TO HOW
A VACANCY IN A HIGHER GRADE MAY BE FILLED - I.E., BY PROMOTION FROM
WITHIN OR OTHERWISE - DOES NOT VIOLATE SEC. 11 OF THE ACT.  PP. 137
139. 

3.  THE PROVISION OF SEC. 11 OF THE ACT THAT HEARING EXAMINERS "SHALL
BE ASSIGNED TO CASES IN ROTATION SO FAR AS PRACTICABLE" DOES NOT
REQUIRE THAT ALL HEARING EXAMINERS EMPLOYED BY A PARTICULAR AGENCY BE
ASSIGNED TO CASES IN MECHANICAL ROTATION WITHOUT REGARD TO THE
DIFFICULTY OR COMPLEXITY OF PARTICULAR CASES OR THE EXPERIENCE OR
COMPETENCE OF PARTICULAR EXAMINERS; AND SEC. 34.12 OF THE REGULATIONS
IS VALID.  PP. 139-140. 

4.  SECTION 34.15 OF THE REGULATIONS, WHICH PROVIDES FOR A REDUCTION
IN FORCE OF EXAMINERS UNDER CIRCUMSTANCES GOVERNING THE REDUCTION IN
FORCE OF OTHER FEDERAL EMPLOYEES, IS NOT INCONSISTENT WITH THE
PROVISION OF SEC. 11 OF THE ACT THAT EXAMINERS "SHALL BE REMOVABLE  ...
ONLY FOR GOOD CAUSE ESTABLISHED AND DETERMINED BY THE CIVIL SERVICE
COMMISSION  ...  ."  PP. 140-143. 

RAMSPECK ET AL. V. FEDERAL TRIAL EXAMINERS CONFERENCE ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE DISTRICT COURT ENJOINED ENFORCEMENT OF FOUR CIVIL SERVICE RULES
CONCERNING TRIAL EXAMINERS.  104 F. SUPP. 734.  THE COURT OF APPEALS
AFFIRMED.  91 U.S. APP. D.C. 164, 202 F.2D 312.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 853.  REVERSED AND REMANDED WITH DIRECTIONS TO
DISMISS THE COMPLAINT, P. 143. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE PRESENT SUIT WAS BROUGHT BY THE FEDERAL TRIAL EXAMINERS
CONFERENCE, (FN1) 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 SEC. 11 OF
THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 244, 5 U.S.C. SEC. 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 SEC. 11, WERE
INVALID, AND ASKED THAT THEIR ENFORCEMENT BE ENJOINED.  THE DISTRICT
COURT HELD THAT THESE FOUR RULES WERE INVALID, INTERPRETING SEC. 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. 

PRIOR TO THE PASSAGE OF THE ADMINISTRATIVE PROCEDURE ACT, HEARING
EXAMINERS' TENURE AND STATUS WERE GOVERNED BY THE CLASSIFICATION ACT OF
1923, AS AMENDED.  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. 

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. 

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.  (FN2) 

CONGRESS INTENDED TO MAKE HEARING EXAMINERS "A SPECIAL CLASS OF SEMI
INDEPENDENT SUBORDINATE HEARING OFFICERS" (FN3) 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: 

"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 RATINGS 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 RULES, 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." 

AN EXAMINATION OF SEC. 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 SEC. 7 OF THE
CLASSIFICATION ACT AND SEC. 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) SEC. 1071 ET SEQ.). 

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 THIS CASE. 

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 SEC. 11 OF THE ADMINISTRATIVE PROCEDURE ACT.  DID IT
IMPLEMENT THE STATUTE, OR DID IT ENLARGE IT? 

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. 

PROCEEDING UNDER THE PROVISIONS OF THE CLASSIFICATION ACT, THE
COMMISSION STILL CLASSIFIED THE EXAMINERS ACCORDING TO THEIR
EXPERIENCE, SKILL, AND ABILITY, (FN4) 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 34.10 (FN5) WHICH SPECIFICALLY STATES, "ALLOCATIONS SHALL BE MADE
INDEPENDENTLY OF AGENCY RECOMMENDATIONS AND RATINGS." 

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, SEC. 11 SPECIFICALLY DIRECTS THAT
"EXAMINERS SHALL RECEIVE COMPENSATION  ...  IN ACCORDANCE 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,
(FN6) 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) SEC. 1082,
ALTHOUGH THE COMMISSION THEN WAS CLASSIFYING EXAMINERS UNDER
REGULATIONS SIMILAR TO THE PRESENT ONES. 

THE DISTRICT COURT WAS CRITICAL OF THE SPECIFICATIONS USED BY THE
COMMISSION TO CLASSIFY THE EXAMINERS AS BEING "NEBULOUS AND
SUBJECTIVE."  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 SEC. 602 OF THE
CLASSIFICATION ACT OF 1949, 5 U.S.C. (SUPP. V) SEC. 1112. 

WE COME NEXT TO RULE 34.4 OF THE COMMISSION RELATING TO PROMOTIONS,
(FN7) 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. 

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 AS MANY QUALIFIED AND COMPETENT
EXAMINERS AS MAY BE NECESSARY."  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. 

WE COME NEXT TO RULE 34.12, ROTATION OF EXAMINERS.  IT PROVIDES: 

"INSOFAR AS PRACTICABLE, EXAMINERS SHALL BE ASSIGNED IN ROTATION 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., SEC. 34.12. 

THIS RULE PURPORTS TO IMPLEMENT THE PROVISION OF SEC. 11 THAT
EXAMINERS "SHALL BE ASSIGNED TO CASES IN ROTATION SO FAR AS
PRACTICABLE."  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. 

THE COMMISSION GAVE TO SEC. 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
ASSIGNMENT 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. 

FINALLY, WE COME TO THE CONSIDERATION OF RULE 34.15, (FN8) 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 SEC. 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. 

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., SEC. 20.2(A). 

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,
SEC. 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. 

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 SEC. 11. 

THE RULES CONFORM TO THE STATUTE AND CARRY OUT THE PURPOSE AND INTENT
(FN9) OF CONGRESS, AND THEY ARE THEREFORE VALID. 

THE JUDGMENT IS REVERSED, AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS TO DISMISS THE COMPLAINT.  REVERSED. 

FN1  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. 

FN2  THE SENATE REPORT DESCRIBED THE ALTERNATIVES BEFORE THE CONGRESS
AND THE PURPOSE OF SEC. 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."  ADMINISTRATIVE PROCEDURE ACT -
LEGISLATIVE HISTORY, S. DOC. NO. 248, 79TH CONG., 2D SESS., P. 215. 

FN3  LEGISLATIVE HISTORY, P. 192. 

FN4  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. 

FN5  "SEC.  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., SEC. 34.10. 

FN6  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). 

FN7  "SEC.  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 EXAMINERS MUST MEET THE CURRENT RECRUITING STANDARDS
(INCLUDING THE REQUIREMENTS 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., SEC. 34.4. 

FN8  "SEC.  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 SEC. 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." 

FN9  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. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

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. 

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."  (FN1)  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, SEC. 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. 
(FN2) 

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. 

ANOTHER REGULATION HERE APPROVED PERMITS THE ASSIGNMENT OF CASES TO
EXAMINERS BY "CLASSIFICATION" INSTEAD OF BY "ROTATION" AS SEC. 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. 

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. 

FN1  S. DOC. NO. 82, 82D CONG., 1ST SESS. 9. 

FN2  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, AND IN THE
OPINION OF CHIEF JUDGE LAWS, 104 F. SUPP. 734. 
..END :










BROWN V. ALLEN 344 U.S. 443 


NO. 32.  ARGUED APRIL 29, 1952 - REARGUED OCTOBER 13, 1952 - DECIDED
FEBRUARY 9, 1953 - 192 F.2D 477, 763, AFFIRMED. 


1.  WHERE, ON DIRECT REVIEW OF HIS CONVICTION, A STATE PRISONER'S
CLAIM OF FEDERAL CONSTITUTIONAL RIGHT HAS BEEN DECIDED ADVERSELY TO HIM
BY THE STATE SUPREME COURT AND AN APPLICATION TO THIS COURT FOR
CERTIORARI HAS BEEN DENIED, HE HAS SATISFIED THE REQUIREMENT OF 28
U.S.C. SEC. 2254 THAT STATE REMEDIES BE EXHAUSTED BEFORE A FEDERAL
COURT MAY GRANT AN APPLICATION FOR HABEAS CORPUS.  PP. 446-450. 

(A)  IT IS NOT NECESSARY IN SUCH CIRCUMSTANCES THAT HE PURSUE IN THE
STATE COURTS A COLLATERAL REMEDY BASED ON THE SAME EVIDENCE AND
ISSUES.  PP. 447-450. 

(B)  SECTION 2254 IS NOT TO BE CONSTRUED AS REQUIRING REPETITIOUS
APPLICATIONS TO STATE COURTS FOR RELIEF.  P. 448, N. 3. 

2.  A DENIAL OF CERTIORARI BY THIS COURT (WITH NO STATEMENT OF
REASONS THEREFOR) TO REVIEW A DECISION OF A STATE SUPREME COURT
AFFIRMING A CONVICTION IN A CRIMINAL PROSECUTION SHOULD BE GIVEN NO
WEIGHT BY A FEDERAL COURT IN PASSING UPON THE SAME PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS.  (OPINION OF MR. JUSTICE
FRANKFURTER, STATING THE POSITION OF A MAJORITY OF THE COURT ON THIS
POINT.)  PP. 489-497. 

3.  ON A STATE PRISONER'S APPLICATION FOR HABEAS CORPUS ON FEDERAL
CONSTITUTIONAL GROUNDS, THE FEDERAL DISTRICT COURT MAY TAKE INTO
CONSIDERATION THE PROCEEDINGS AND ADJUDICATIONS IN THE STATE TRIAL AND
APPELLATE COURTS.  PP. 457-458. 

(A)  WHERE THE STATE DECISION WAS BASED ON AN ADEQUATE STATE GROUND,
NO FURTHER EXAMINATION IS REQUIRED, UNLESS NO STATE REMEDY FOR THE
DEPRIVATION OF FEDERAL CONSTITUTIONAL RIGHTS EVER EXISTED.  P. 458. 

(B)  WHERE THERE IS MATERIAL CONFLICT OF FACT IN THE TRANSCRIPT OF
EVIDENCE AS TO DEPRIVATION OF CONSTITUTIONAL RIGHTS, THE DISTRICT COURT
MAY PROPERLY DEPEND UPON THE STATE'S RESOLUTION OF THE ISSUE.  P. 458. 

(C)  IN OTHER CIRCUMSTANCES, THE STATE ADJUDICATION CARRIES THE
WEIGHT THAT FEDERAL PRACTICE GIVES TO THE CONCLUSION OF A COURT OF LAST
RESORT OF ANOTHER JURISDICTION ON FEDERAL CONSTITUTIONAL ISSUES,
ALTHOUGH RES JUDICATA IS NOT APPLICABLE.  P. 458. 

4.  ALTHOUGH IN EACH OF THESE CASES THE DISTRICT COURT ERRONEOUSLY
GAVE CONSIDERATION TO THIS COURT'S PRIOR DENIAL OF CERTIORARI, IT
AFFIRMATIVELY APPEARS FROM THE RECORD THAT THE ERROR COULD NOT HAVE
AFFECTED THE RESULT, AND SUCH ERROR MAY BE AND IS DISREGARDED AS
HARMLESS.  FED. RULES CRIM. PROC., 52.  PP. 458-460. 

5.  ON THE APPLICATION OF A STATE PRISONER TO A FEDERAL DISTRICT
COURT FOR HABEAS CORPUS, WHEN THE RECORDS OF THE STATE TRIAL AND
APPELLATE COURTS ARE BEFORE THE DISTRICT COURT, IT IS WITHIN THE
DISCRETION OF THE DISTRICT COURT WHETHER TO TAKE EVIDENCE AND HEAR
ARGUMENT ON THE FEDERAL CONSTITUTIONAL ISSUES; AND THE ACTION OF THE
DISTRICT COURT IN NOT TAKING EVIDENCE OR HEARING ARGUMENT IN THE CASE
HERE INVOLVED WAS NOT AN ABUSE OF THAT DISCRETION.  PP. 460-465. 

6.  IN 28 U.S.C. SECS. 2243 AND 2244, THE WORD "ENTERTAIN" MEANS A
FEDERAL DISTRICT COURT'S CONCLUSION, AFTER EXAMINATION OF THE HABEAS
CORPUS APPLICATION WITH SUCH ACCOMPANYING PAPERS AS THE COURT DEEMS
NECESSARY, THAT A HEARING ON THE MERITS, LEGAL OR FACTUAL, IS PROPER. 
PP. 460-461. 

7.  IN NO. 32, PETITIONER, A NEGRO, WAS NOT DENIED DUE PROCESS OR
EQUAL PROTECTION IN VIOLATION OF THE FOURTEENTH AMENDMENT BY THE METHOD
OF SELECTING GRAND AND PETIT JURIES FROM LISTS LIMITED BY STATE STATUTE
TO TAXPAYERS, THOUGH THE LISTS HAD A HIGHER PROPORTION OF WHITE THAN
NEGRO CITIZENS.  PP. 466-474. 

8.  IN NO. 32, PETITIONER WAS NOT DENIED DUE PROCESS BY THE ADMISSION
IN EVIDENCE AGAINST HIM OF CONFESSIONS NOT SHOWN TO HAVE BEEN COERCED. 
PP. 474-476. 

9.  IN NO. 22, PETITIONER, A NEGRO, DID NOT SHOW BY CLEAR EVIDENCE
THAT, IN THE SELECTION OF JURORS WHICH WAS ACTUALLY MADE IN HIS CASE,
THERE WAS DISCRIMINATION BASED SOLELY ON RACE; AND PETITIONER'S
CONVICTION CANNOT BE SET ASIDE ON THAT GROUND AS VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THE COMPARATIVELY SMALL
NUMBER OF NAMES OF NEGROES IN THE JURY BOX WAS INSUFFICIENT IN ITSELF
TO ESTABLISH SUCH DISCRIMINATION.  PP. 477-482. 

10.  IN NO. 20, THE STATE SUPREME COURT HAD REFUSED REVIEW ON THE
MERITS OF PETITIONERS' CONVICTION AND DEATH SENTENCE (CHALLENGED ON
FEDERAL CONSTITUTIONAL GROUNDS) BECAUSE OF PETITIONERS' FAILURE TO
PERFECT THEIR APPEAL WITHIN THE 60-DAY LIMIT APPLICABLE UNDER STATE
LAW, THE APPEAL NOT HAVING BEEN PERFECTED UNTIL THE 61ST DAY.  HELD:  A
FAILURE TO USE A STATE'S AVAILABLE REMEDY, IN THE ABSENCE OF SOME
INTERFERENCE OR INCAPACITY, BARS FEDERAL HABEAS CORPUS.  PP. 482-487. 

FOR OPINION OF THE COURT, SEE POST, P. 446. 

FOR NOTATION OF MR. JUSTICE JACKSON, CONCURRING IN THE RESULT, SEE
POST, P. 487. 

FOR NOTATION OF POSITION OF MR. JUSTICE BURTON AND MR. JUSTICE CLARK,
SEE POST, P. 487. 

FOR OPINION OF MR. JUSTICE FRANKFURTER AS TO THE LEGAL SIGNIFICANCE
OF THIS COURT'S DENIAL OF CERTIORARI AND THE BEARING OF PROCEEDINGS IN
STATE COURTS, ON DISPOSITION OF APPLICATION FOR WRIT OF HABEAS CORPUS
IN A FEDERAL DISTRICT COURT, SEE POST, P. 488. 

FOR NOTATION OF POSITION OF MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS
ON THE SAME TWO POINTS, SEE POST, P. 513. 

FOR OPINION OF MR. JUSTICE JACKSON, CONCURRING IN THE RESULT
ANNOUNCED BY THE OPINION OF THE COURT, SEE POST, P. 532. 

FOR DISSENTING OPINION OF MR. JUSTICE BLACK, JOINED BY MR. JUSTICE
DOUGLAS, SEE POST, P. 548. 

FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR.
JUSTICE BLACK AND MR. JUSTICE DOUGLAS, SEE POST, P. 554. 

BROWN V. ALLEN, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT.* 

*TOGETHER WITH NO. 22, SPELLER V. ALLEN, WARDEN, ARGUED APRIL 29,
1952, REARGUED OCTOBER 13, 1952, AND NO. 20, DANIELS ET AL. V. ALLEN,
WARDEN, ARGUED APRIL 28-29, 1952, REARGUED OCTOBER 13, 1952, ALSO ON
CERTIORARI TO THE SAME COURT. 

NO. 32.  PETITIONER, A STATE PRISONER, APPLIED TO THE FEDERAL
DISTRICT COURT FOR HABEAS CORPUS, AFTER HIS PETITION TO THIS COURT FOR
CERTIORARI TO REVIEW THE STATE SUPREME COURT'S AFFIRMANCE OF HIS
CONVICTION HAD BEEN DENIED.  341 U.S. 943.  THE DISTRICT COURT
DISMISSED THE APPLICATION.  98 F. SUPP. 866.  THE COURT OF APPEALS
AFFIRMED.  192 F.2D 477.  THIS COURT GRANTED CERTIORARI.  343 U.S.
903.  THE CASE WAS ARGUED AT THE OCTOBER 1951 TERM, BUT WAS RESTORED TO
THE DOCKET FOR REARGUMENT.  343 U.S. 973.  JUDGMENT AFFIRMED, P. 487. 

NO. 22.  PETITIONER, A STATE PRISONER, APPLIED TO THE FEDERAL
DISTRICT COURT FOR HABEAS CORPUS, AFTER HIS PETITION TO THIS COURT FOR
CERTIORARI TO REVIEW THE STATE SUPREME COURT'S AFFIRMANCE OF HIS
CONVICTION HAD BEEN DENIED.  340 U.S. 835.  THE DISTRICT COURT
DISMISSED THE APPLICATION.  99 F. SUPP. 92.  THE COURT OF APPEALS
AFFIRMED.  192 F.2D 477.  THIS COURT GRANTED CERTIORARI.  342 U.S.
953.  THE CASE WAS ARGUED AT THE OCTOBER 1951 TERM, BUT WAS RESTORED TO
THE DOCKET FOR REARGUMENT.  343 U.S. 973.  JUDGMENT AFFIRMED, P. 487. 

NO. 20.  PETITIONERS, STATE PRISONERS, APPLIED TO THE FEDERAL
DISTRICT COURT FOR HABEAS CORPUS, AFTER THIS COURT HAD DENIED THEIR
PETITION FOR CERTIORARI TO REVIEW THE STATE SUPREME COURT'S REFUSAL TO
CONSIDER ON THE MERITS AN APPEAL FROM THEIR CONVICTION.  339 U.S. 954. 
THE DISTRICT COURT DISMISSED THE APPLICATION.  99 F. SUPP. 208.  THE
COURT OF APPEALS AFFIRMED.  192 F.2D 763.  THIS COURT GRANTED
CERTIORARI.  342 U.S. 941.  THE CASE WAS ARGUED AT THE OCTOBER 1951
TERM, BUT WAS RESTORED TO THE DOCKET FOR REARGUMENT.  343 U.S. 973. 
JUDGMENT AFFIRMED, P. 487. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS GRANTED TO REVIEW JUDGMENTS OF THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT.  343 U.S. 903; 342 U.S. 953; 342
U.S. 941.  THESE CASES WERE ARGUED LAST YEAR.  AS THE RECORDS RAISED
SERIOUS FEDERAL CONSTITUTIONAL QUESTIONS UPON WHICH THE CARRYING OUT OF
DEATH SENTENCES DEPENDED AND PROCEDURAL ISSUES OF IMPORTANCE IN THE
RELATIONS BETWEEN STATES AND THE FEDERAL GOVERNMENT UPON WHICH THERE
WAS DISAGREEMENT IN THIS COURT, WE DECIDED TO SET THE CASES FOR
REARGUMENT.  WE HAVE NOW HEARD THE CASES AGAIN. 

THE JUDGMENTS OF AFFIRMANCE WERE ENTERED OCTOBER 12, 1951, ON APPEAL
FROM THREE JUDGMENTS OF THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NORTH CAROLINA, REFUSING WRITS OF HABEAS CORPUS
SOUGHT BY PRISONERS CONVICTED IN THAT STATE.  WE CONCLUDE THAT ALL
REQUIRED PROCEDURE FOR STATE REVIEW OF THE CONVICTIONS HAD BEEN
EXHAUSTED BY PETITIONERS IN EACH CASE BEFORE THEY SOUGHT THE WRITS OF
HABEAS CORPUS IN THE FEDERAL COURTS.  IN EACH CASE PETITIONS FOR
CERTIORARI TO THIS COURT FOR DIRECT REVIEW OF THE STATE JUDGMENTS
RENDERED BY THE HIGHEST COURT OF THE STATE IN THE FACE OF THE SAME
FEDERAL ISSUES NOW PRESENTED BY HABEAS CORPUS HAD BEEN DENIED.  (FN1) 

IT IS NOT NECESSARY IN SUCH CIRCUMSTANCES FOR THE PRISONER TO ASK THE
STATE FOR COLLATERAL RELIEF, BASED ON THE SAME EVIDENCE AND ISSUES
ALREADY DECIDED BY DIRECT REVIEW WITH ANOTHER PETITION FOR CERTIORARI
DIRECTED TO THIS COURT.  (FN2)  IT IS TO BE NOTED THAT AN APPLICANT IS
BARRED UNLESS HE HAS "EXHAUSTED THE REMEDIES AVAILABLE IN THE COURTS OF
THE STATE  ...  BY ANY AVAILABLE PROCEDURE."  THE LEGISLATIVE HISTORY
SHOWS THAT THIS PARAGRAPH, IN HAEC VERBA, WAS PRESENTED TO THE CONGRESS
WITH THE RECOMMENDATION OF THE JUDICIAL CONFERENCE.  THE LEGISLATIVE
HISTORY OF 28 U.S.C. SEC. 2254 HAS NO DISCUSSION OF THE CONSIDERATIONS
WHICH MOVED CONGRESSIONAL ENACTMENT OTHER THAN THAT CONTAINED IN S.
REP. NO. 1559.  BUT SEE A SIMILAR CLAUSE SEC. 2254 IN H.R. 3214, 80TH
CONG., 1ST SESS.; H.R. 3214, 80TH CONG., 2D SESS.; S. REP. NO. 1559,
80TH CONG., 2D SESS., P. 9; REPORT OF THE JUDICIAL CONFERENCE OF SENIOR
CIRCUIT JUDGES, 1947, PP. 17-20. 

THE SECOND PARAGRAPH OF SEC. 2254 HAS BEEN CONSTRUED BY SEVERAL
COURTS OF APPEALS.  IN EKBERG V. MCGEE, 191 F.2D 625, THE NINTH CIRCUIT
REFUSED TO CONSIDER THAT THE STATUTE MEANT TO DENY A FEDERAL FORUM
WHERE STATE PROCEDURES WERE INEXHAUSTIBLE.  THE THIRD CIRCUIT IN MASTER
V. BALDI, 198 F.2D 113, 116, HELD THAT THE EXHAUSTION OF ONE OF SEVERAL
AVAILABLE ALTERNATIVE STATE REMEDIES WITH THIS COURT'S DENIAL OF
CERTIORARI THEREFROM IS ALL THAT IS NECESSARY.  IN BACOM V. SULLIVAN,
181 F.2D 177, AND BACOM V. SULLIVAN, 194 F.2D 166, THE FIFTH CIRCUIT
RULED THAT WHEN A FEDERAL QUESTION HAD BEEN PRESENTED TO THE STATE
COURTS BY AT LEAST ONE POST-CONVICTION PROCEDURE, CERTIORARI ON THE
SAME QUESTION HAVING BEEN ONCE DENIED BY THIS COURT, THERE APPEARED A
UNIQUE AND EXTRAORDINARY CIRCUMSTANCE, JUSTIFYING FEDERAL EXAMINATION
UNDER DARR V. BURFORD, 339 U.S. 200.  (FN3) 

WHEN, IN APRIL 1948, JUDGE MARIS PRESENTED THE JUDICIAL CONFERENCE
DRAFT OF SEC. 2254 TO THE SENATE JUDICIARY SUBCOMMITTEE, THE LANGUAGE
OF THE REVISION 28 U.S.C., ON WHICH THE HEARINGS WERE BEING HELD, SET
OUT THREE BASES FOR EXERCISE OF FEDERAL JURISDICTION OVER APPLICATIONS
FOR HABEAS CORPUS FROM STATE PRISONERS.  UNDER THE LANGUAGE OF THE BILL
AS IT THEN READ, AN APPLICATION MIGHT HAVE BEEN ENTERTAINED WHERE IT
APPEARED (1) THAT THE APPLICANT HAD EXHAUSTED THE REMEDIES AVAILABLE IN
THE COURTS OF THE STATE, OR (2) WHERE THERE WAS NO ADEQUATE REMEDY
AVAILABLE IN SUCH COURTS, OR (3) WHERE SUCH COURTS HAD DENIED THE
APPLICANT A FAIR ADJUDICATION OF THE LEGALITY OF HIS DETENTION UNDER
THE CONSTITUTION AND LAWS OF THE UNITED STATES.  IN ACCEPTING THE
RECOMMENDATION OF THE JUDICIAL CONFERENCE, THE CONGRESS ELIMINATED THE
THIRD BASIS OF JURISDICTION.  S. REP. NO. 1559, P. 9, SHOWS THE REASON
FOR THIS AS FOLLOWS: 

"THE SECOND PURPOSE IS TO ELIMINATE, AS A GROUND OF FEDERAL
JURISDICTION TO REVIEW BY HABEAS CORPUS JUDGMENTS OF STATE COURTS, THE
PROPOSITION THAT THE STATE COURT HAS DENIED A PRISONER A 'FAIR
ADJUDICATION OF THE LEGALITY OF HIS DETENTION UNDER THE CONSTITUTION
AND LAWS OF THE UNITED STATES.'   THE JUDICIAL CONFERENCE BELIEVES THAT
THIS WOULD BE AN UNDESIRABLE GROUND FOR FEDERAL JURISDICTION IN
ADDITION TO EXHAUSTION OF STATE REMEDIES OR LACK OF ADEQUATE REMEDY IN
THE STATE COURTS BECAUSE IT WOULD PERMIT PROCEEDINGS IN THE FEDERAL
COURT ON THIS GROUND BEFORE THE PETITIONER HAD EXHAUSTED HIS STATE
REMEDIES.  THIS GROUND WOULD, OF COURSE, ALWAYS BE OPEN TO A PETITIONER
TO ASSERT IN THE FEDERAL COURT AFTER HE HAD EXHAUSTED HIS STATE
REMEDIES OR IF HE HAD NO ADEQUATE STATE REMEDY. 

"THE THIRD PURPOSE IS TO SUBSTITUTE DETAILED AND SPECIFIC LANGUAGE
FOR THE PHRASE 'NO ADEQUATE REMEDY AVAILABLE.'  THAT PHRASE IS NOT
SUFFICIENTLY SPECIFIC AND PRECISE, AND ITS MEANING SHOULD, THEREFORE,
BE SPELLED OUT IN MORE DETAIL IN THE SECTION AS IS DONE BY THE
AMENDMENT." 

IF THE SUBSTITUTION FOR "ADEQUATE REMEDY AVAILABLE" OF THE PRESENT
DEFINITION WAS INTENDED BY THE CONGRESS TO ELIMINATE THE RIGHT OF A
STATE PRISONER TO APPLY FOR RELIEF BY HABEAS CORPUS TO THE LOWER
FEDERAL COURTS, WE DO NOT THINK THAT THE REPORT WOULD HAVE SUGGESTED
THAT A REMEDY FOR DENIAL OF A "FAIR ADJUDICATION" WAS IN THE FEDERAL
COURT.  THE SUGGESTED ELIMINATION OF DISTRICT AND CIRCUIT COURTS DOES
NOT SQUARE WITH THE OTHER STATUTORY HABEAS CORPUS PROVISIONS.  SEE 28
U.S.C. SECS. 2241, 2242, 2251, 2252, 2253, 3D PARAGRAPH.  WE ARE
UNWILLING TO CONCLUDE WITHOUT A DEFINITE CONGRESSIONAL DIRECTION THAT
SO RADICAL A CHANGE WAS INTENDED. 

IN EACH OF THESE CASES THE DISTRICT COURT, IN DETERMINING THE
PROPRIETY OF ITS GRANTING THE WRIT, CONSIDERED THE EFFECT OF OUR
REFUSAL OF CERTIORARI ON THE SAME QUESTIONS UPON DIRECT REVIEW OF THE
JUDGMENTS OF THE HIGHEST COURT OF THE STATE.  AS THAT QUESTION,
PRETERMITTED IN OUR RULING IN DARR V. BURFORD, 339 U.S. 200, 214-217, A
CASE WHERE NO CERTIORARI WAS SOUGHT HERE FROM STATE DENIAL OF
COLLATERAL RELIEF BY HABEAS CORPUS FROM IMPRISONMENT, HAD GIVEN RISE TO
DEFINITE DIFFERENCES OF OPINION IN THE FEDERAL COURTS, A RULING HERE
WAS NECESSARY.  (FN4)  THERE IS A SIMILAR DIFFERENCE IN THIS COURT. 
(FN5)  AS OTHER ISSUES COMMAND A MAJORITY THAT UPHOLDS THE JUDGMENTS OF
THE COURT ALTHOUGH IT REPRESENTS THE MINORITY VIEW ON THE EFFECT OF OUR
DENIAL OF CERTIORARI.  THE POSITION OF THE MAJORITY UPON THAT POINT IS
EXPRESSED BY THE OPINION OF MR. JUSTICE FRANKFURTER, POST, P. 488.  A
SUMMARY REVIEW OF HABEAS CORPUS PRACTICE IN THE FEDERAL COURTS IN
RELATION TO STATE CRIMINAL CONVICTIONS WILL BE FOUND IN HAWK V. OLSON,
326 U.S. 271, 274, AND DARR V. BURFORD, 339 U.S. 200, 203.  IT IS HOPED
THE CONCLUSIONS REACHED HEREIN WILL RESULT IN THE IMPROVEMENT OF THE
ADMINISTRATION OF JUSTICE AND LEAVE THE INDISPENSABLE FUNCTION OF THE
GREAT WRIT UNIMPAIRED IN USEFULNESS. 

                     II.  EFFECT OF FORMER PROCEEDINGS. 

THE EFFECT TO BE GIVEN THIS COURT'S FORMER REFUSAL OF CERTIORARI IN
THESE CASES WAS PRESENTED TO THE DISTRICT COURT WHICH HEARD THE
APPLICATIONS FOR FEDERAL HABEAS CORPUS UPON FULL RECORDS OF THE STATE
PROCEEDINGS IN THE TRIAL AND APPELLATE COURTS.  IN NO. 32, BROWN V.
ALLEN, THE DISTRICT COURT, UPON EXAMINATION OF THE APPLICATION, THE
ANSWER, AND THE EXHIBITS, ADOPTED, WITHOUT HEARING ARGUMENT OR
TESTIMONY, THE FINDINGS OF THE SENTENCING JUDGE WITH RESPECT TO BOTH
THE COMPOSITION OF THE GRAND JURY AND THE VOLUNTARY CHARACTER OF THE
CONFESSION.  THESE WERE THE FEDERAL CONSTITUTIONAL ISSUES INVOLVED IN
THE STATE TRIAL.  THE RECORD WHICH THE DISTRICT JUDGE HAD BEFORE HIM
EMBRACED THE RECORD OF THE CASE IN THE NORTH CAROLINA COURTS AND THIS
COURT, INCLUDING ALL THE RELEVANT PORTIONS OF THE TRANSCRIPT OF
PROCEEDINGS IN THE SENTENCING COURT.  THE DISTRICT COURT THEN DISMISSED
THE PETITION.  SUB NOM. BROWN V. CRAWFORD, 98 F. SUPP. 866. 

IN NO. 22, SPELLER V. ALLEN, THE PETITION FOR HABEAS CORPUS IN THE
DISTRICT COURT RAISED AGAIN THE SAME FEDERAL QUESTION WHICH HAD BEEN
PASSED UPON BY THE TRIAL AND APPELLATE COURTS IN NORTH CAROLINA AND
WHICH HAD BEEN OFFERED TO THIS COURT ON PETITION FOR CERTIORARI; TO
WIT, THE JURY COMMISSIONERS HAD "PURSUANT TO A LONG AND CONTINUOUS
PRACTICE, DISCRIMINATED AGAINST NEGROES IN THE SELECTION OF JURIES,
SOLELY ON ACCOUNT OF RACE AND/OR COLOR."  THE DISTRICT COURT HAD BEFORE
IT THE RECORD WHICH HAD BEEN FILED IN THE SUPREME COURT OF NORTH
CAROLINA ON APPEAL.  INCLUDED IN THIS RECORD WAS THE SAME TRANSCRIPT OF
PROCEEDINGS IN THE TRIAL COURT WHICH HAD BEEN BEFORE THE STATE SUPREME
COURT.  IN ADDITION, THE DISTRICT COURT TOOK FURTHER EVIDENCE BY WAY OF
TESTIMONY AND STIPULATION.  THE DISTRICT COURT, UPON EXAMINATION OF ALL
THE EVIDENCE AND THE STIPULATIONS, ADOPTED THE FINDINGS OF THE
SENTENCING JUDGE WITH RESPECT TO THE COMPOSITION OF THE TRIAL JURY.  IT
ADDED THAT PETITIONER "FAILED TO SUBSTANTIATE THE CHARGE THAT HE DID
NOT HAVE A TRIAL ACCORDING TO DUE PROCESS,  ...  ."  THE COURT THEN
VACATED THE WRIT; AND HELD THAT WHILE THE PETITION COULD BE DISMISSED
"SOLELY IN THE LIGHT OF THE PROCEDURAL HISTORY," THERE WAS THE ADDED
ALTERNATIVE GROUND OF FAILURE TO SUBSTANTIATE THE CHARGE.  SUB NOM.
SPELLER V. CRAWFORD, 99 F. SUPP.  92, 97. 

IN NO. 20, DANIELS V. ALLEN, PETITIONERS AT THE STATE TRIAL MADE A
TIMELY MOTION TO QUASH THE INDICTMENT AND CHALLENGED THE ARRAY,
ALLEGING DISCRIMINATION AGAINST NEGROES IN THE SELECTION OF BOTH GRAND
AND PETIT JURORS IN CONTRAVENTION OF THE GUARANTEES OF THE FOURTEENTH
AMENDMENT.  TIMELY OBJECTION WAS ALSO MADE TO ADMISSION IN EVIDENCE OF
WHAT WERE ALLEGED TO BE COERCED CONFESSIONS.  PETITIONERS CONTEND THAT
THE ADMISSION OF THESE CONFESSIONS VIOLATED THEIR DUE PROCESS RIGHTS
UNDER THE FOURTEENTH AMENDMENT.  THEY ALSO URGE THAT THE REFUSAL OF THE
SUPREME COURT OF NORTH CAROLINA TO EXAMINE THE MERITS OF THE TRIAL
RECORD IN THE STATE COURTS BECAUSE OF THEIR FAILURE TO SERVE A
STATEMENT OF THE CASE ON APPEAL UNTIL ONE DAY BEYOND THE PERIOD OF
LIMITATION, IS A DENIAL OF EQUAL PROTECTION UNDER THE FOURTEENTH
AMENDMENT.  IN THEIR APPLICATION TO THE DISTRICT COURT, PETITIONERS
REPEATED ONCE AGAIN THOSE FEDERAL CONSTITUTIONAL QUESTIONS WHICH HAD
EARLIER BEEN PRESENTED TO THE SENTENCING COURT AND THE SUPREME COURT OF
NORTH CAROLINA AND WHICH HAD ALSO BEEN REPEATED IN THEIR PETITION FOR
CERTIORARI FILED IN THIS COURT. 

IN EXAMINING THE APPLICATION, THE DISTRICT COURT JUDGE STUDIED THE
RECORDS OF THE TRIAL AND APPELLATE COURTS OF NORTH CAROLINA, INCLUDING
A TRANSCRIPT OF THE PROCEEDINGS IN THE SENTENCING COURT.  HE CONCLUDED
THAT THE FINDINGS OF THE JUDGE OF THE SENTENCING COURT ON THE MATTER OF
WHETHER THE JURY HAD BEEN PROPERLY SELECTED WERE SUPPORTED BY ALL THE
EVIDENCE AND THAT IT WAS NOT SHOWN THAT THERE WAS A PURPOSEFUL AND
SYSTEMATIC EXCLUSION OF NEGROES SOLELY ON ACCOUNT OF RACE.  HE ALSO
FOUND THAT THE TRIAL JUDGE CORRECTLY DETERMINED THAT THE CONFESSIONS
WERE VOLUNTARY AND THAT THE INSTRUCTION CONCERNING THE CONFESSIONS WAS
ADEQUATE.  IN ADDITION THE DISTRICT JUDGE HEARD ALL EVIDENCE OFFERED BY
THE PROSECUTION OR DEFENSE.    THE DISTRICT COURT JUDGE DID ADVERT TO
THE CIRCUMSTANCE THAT THIS COURT HAD DENIED A PETITION FOR CERTIORARI
ON THE SAME QUESTIONS, AND HE FURTHER OBSERVED THAT TO HIS MIND THE
PROCEDURAL HISTORY OF THE CASE DID NOT MAKE IT APPEAR THAT PETITIONERS
WERE DENIED THE SUBSTANCE OF A FAIR TRIAL.  HE ADDED THAT PETITIONERS
"FAILED TO SUBSTANTIATE THE CHARGES MADE."  99 F. SUPP. AT 216.  THE
WRIT WAS VACATED AND THE APPLICATION DISMISSED.  ON THE PROCEDURAL
HISTORY, THE DISTRICT COURT REFUSED TO ENTERTAIN THE REQUEST.  SUB NOM.
DANIELS V. CRAWFORD, 99 F. SUPP. 208.    THE RECORDS OF THE FORMER
PROCEEDINGS THUS DETERMINED THE ACTION OF THE UNITED STATES DISTRICT
COURT.  THE FACT THAT FURTHER EVIDENCE WAS HEARD IN TWO OF THE CASES
WAS TO ASSURE THE JUDGE THAT THE PRISONERS WERE NOT HELD IN CUSTODY IN
VIOLATION OF THE CONSTITUTION.  IN DISMISSING THESE PETITIONS FOR
HABEAS CORPUS THE DISTRICT COURT DID NOT TREAT OUR DENIAL OF CERTIORARI
AS CONCLUSIVE. 

IN THE BROWN CASE, THE LAST ONE DECIDED, JUDGE GILLIAM BASED HIS
DECISION ON THIS FINDING OF FACT:

"12.  THE FACTS FOUND BY THE TRIAL JUDGE, IN RESPECT TO THE
COMPOSITION OF THE GRAND JURY, ARE SUPPORTED BY THE EVIDENCE BEFORE
HIM, AND THESE FINDINGS AND THE CONCLUSION THEREON ARE ADOPTED AS
FINDINGS IN THIS RESPECT, AND THE FACTS FOUND BY THAT COURT IN RESPECT
TO THE QUESTION OF ADMISSION OF STATEMENTS MADE BY THE DEFENDANT ARE
ALSO SUPPORTED BY THE EVIDENCE, AND THESE FINDINGS AND THE CONCLUSIONS
THEREON ARE LIKEWISE ADOPTED."  98 F. SUPP. 866, 870. 

THE COURT CITED FROM STONEBREAKER V. SMYTH, 163 F.2D 498, 499, IN
SUPPORT OF THE ABOVE STATEMENT THAT THIS IS THE PROPER RULE: 

"'WHILE ACTION OF THE VIRGINIA COURTS AND THE DENIAL OF CERTIORARI BY
THE SUPREME COURT WERE NOT BINDING ON THE PRINCIPLE OF RES JUDICATA,
THEY WERE MATTERS ENTITLED TO RESPECTFUL CONSIDERATION BY THE COURT
BELOW; AND IN THE ABSENCE OF SOME MOST UNUSUAL SITUATION, THEY WERE
SUFFICIENT REASON FOR THAT COURT TO DENY A FURTHER WRIT OF HABEAS
CORPUS.'"  98 F. SUPP. AT 868. 

IN THE SPELLER CASE, THE PITH OF HIS CONCLUSION IS STATED AS
FOLLOWS: 

"'THE COURT NOW CONCLUDES THAT THE WRIT SHOULD BE VACATED AND THE
PETITION DISMISSED UPON THE PROCEDURAL HISTORY AND THE RECORD IN THE
STATE COURT, FOR THE REASON THAT HABEAS CORPUS PROCEEDING IS NOT
AVAILABLE TO THE PETITIONER FOR THE PURPOSE OF RAISING THE IDENTICAL
QUESTION PASSED UPON IN THOSE COURTS.'"  99 F. SUPP. 92, 95. 

TO THIS WAS ADDED THE ALTERNATIVE GROUND OF AGREEMENT WITH THE
CONCLUSIONS OF THE SENTENCING COURT.  SEE PP. 452-453, SUPRA. 

IN THE DANIELS CASE, DECIDED THE SAME DAY, THE DISTRICT COURT LEFT
OPEN THE QUESTION OF ITS POWER TO REEXAMINE, 99 F. SUPP. AT 213, AND
CONCLUDED ON THE RECORD THAT THE STATE HAD AFFORDED A FAIR TRIAL. 

A. EFFECT OF DENIAL OF CERTIORARI.  - IN CASES SUCH AS THESE, A
MINORITY OF THIS COURT IS OF THE OPINION THAT THERE IS NO REASON WHY A
DISTRICT COURT SHOULD NOT GIVE CONSIDERATION TO THE RECORD OF THE PRIOR
CERTIORARI IN THIS COURT AND SUCH WEIGHT TO OUR DENIAL AS THE DISTRICT
COURT FEELS THE RECORD JUSTIFIES.  THIS IS THE VIEW OF THE COURT OF
APPEALS.  192 F.2D 763, 768 ET SEQ.; SPELLER V. ALLEN, 192 F.2D 477. 
THIS IS, WE THINK, THE TEACHING OF EX PARTE HAWK, 321 U.S. 114, 118,
AND WHITE V. RAGEN, 324 U.S. 760, 764, 765.  WE HAVE FREQUENTLY SAID
THAT THE DENIAL OF CERTIORARI "IMPORTS NO EXPRESSION OF OPINION UPON
THE MERITS OF A CASE."  HOUSE V. MAYO, 324 U.S. 42, 48; HAMILTON-BROWN
SHOE CO. V. WOLF BROS.  & CO., 240 U.S. 251, 258.  CF. EX PARTE
ABERNATHY, 320 U.S. 219.  WHEN ON REVIEW OF PROCEEDINGS NO RES JUDICATA
OR PRECEDENTIAL EFFECT FOLLOWS, THE RESULT WOULD BE IN ACCORD WITH THAT
EXPRESSION, THAT STATEMENT IS SATISFIED.  BUT DENIAL OF CERTIORARI
MARKS FINAL ACTION ON STATE CRIMINAL PROCEEDINGS.  IN FIELD OTHER THAN
HABEAS CORPUS WITH ITS UNIQUE OPPORTUNITY FOR REPETITIOUS LITIGATION,
AS DEMONSTRATED IN DORSEY V. GILL, 80 U.S. APP. D.C. 9, 148 F.2D 857,
SEE 7 F.R.D. 313, THE DENIAL WOULD MAKE THE ISSUES RES JUDICATA.  THE
MINORITY THINKS THAT WHERE A RECORD DISTINCTLY PRESENTING A SUBSTANTIAL
FEDERAL CONSTITUTIONAL QUESTION DISENTANGLED FROM PROBLEMS OF PROCEDURE
IS BROUGHT HERE BY CERTIORARI AND DENIED, COURTS DEALING WITH THE
PETITIONER'S FUTURE APPLICATIONS FOR HABEAS CORPUS ON THE SAME ISSUES
PRESENTED IN EARLIER APPLICATIONS FOR WRITS OF CERTIORARI TO THIS
COURT, SHOULD HAVE THE POWER TO TAKE THE DENIAL INTO CONSIDERATION IN
DETERMINING THEIR ACTION.  WE INDICATED AS MUCH IN HOUSE V. MAYO,
SUPRA, P. 48, AND EX PARTE HAWK, SUPRA, P. 117, WHEN WE SPECIFICALLY
APPROVED A DISTRICT COURT'S REFUSAL TO REEXAMINE ORDINARILY THE
QUESTIONS PASSED UPON BY OUR DENIAL.  PERMITTING A DISTRICT COURT TO
DISMISS AN APPLICATION FOR HABEAS CORPUS ON THE STRENGTH OF THE PRIOR
RECORD SHOULD BE A PROCEDURAL DEVELOPMENT TO REDUCE ABUSE OF THE RIGHT
TO REPEATED HEARINGS SUCH AS WERE PERMITTED DURING THE PERIOD WHEN
THERE WAS NO REVIEW OF THE REFUSAL OF A HABEAS CORPUS APPLICATION,
SALINGER V. LOISEL, 265 U.S. 224.  SEE 61 HARV. L. REV. 657, 670. 
COMPARE THE PROTECTION GIVEN BY STATUTE AGAINST ABUSE OF HABEAS CORPUS
IN FEDERAL CRIMINAL PROCEEDINGS, 28 U.S.C. SEC. 2244.  SINCE A FEDERAL
DISTRICT COURT HAS POWER TO INTERVENE, THERE IS A GUARD AGAINST
INJUSTICE THROUGH ERROR.  DARR V. BURFORD, SUPRA, AT 214.  IT SHOULD BE
NOTED THAT THE MINORITY DOES NOT URGE THAT THE DENIAL OF CERTIORARI
HERE IS RES JUDICATA OF THE ISSUES PRESENTED.  IT IS TRUE, AS IS
POINTED OUT IN THE OPINION OF MR. JUSTICE FRANKFURTER, THE RECORDS OF
APPLICATIONS FOR CERTIORARI TO REVIEW STATE CRIMINAL CONVICTIONS,
DIRECTLY OR COLLATERALLY, THROUGH HABEAS CORPUS OR OTHERWISE, ARE NOT
ALWAYS CLEAR AND FULL.  SOME RECORDS, HOWEVER, ARE.  IT SEEMS PROPER
FOR A DISTRICT COURT TO GIVE TO THESE REFUSALS OF CERTIORARI ON
ADEQUATE RECORDS THE CONSIDERATION THE DISTRICT COURT MAY CONCLUDE
THESE REFUSALS MERIT.  THIS WOULD BE A MATTER OF PRACTICE TO KEEP PACE
WITH THE STATUTORY DEVELOPMENT OF 1867 THAT EXPANDED HABEAS CORPUS.  WE
THINK IT INCONSISTENT TO ALLOW A DISTRICT COURT TO DISMISS AN
APPLICATION ON ITS APPRAISAL OF THE STATE TRIAL RECORD, AS WE
UNDERSTAND THOSE DO WHO OPPOSE OUR SUGGESTION (SEE MR. JUSTICE
FRANKFURTER'S OPINION, POST, PP. 500-501 AND 503-506), BUT TO REFUSE TO
PERMIT THE DISTRICT COURT TO CONSIDER RELEVANT OUR DENIAL OF
CERTIORARI. 

B. EFFECT OF STATE COURT ADJUDICATIONS.  -  WITH THE ABOVE STATEMENT
OF THE POSITION OF THE MINORITY ON THE WEIGHT TO BE GIVEN OUR DENIAL OF
CERTIORARI, WE TURN TO ANOTHER QUESTION.  THE FACT THAT NO WEIGHT IS TO
BE GIVEN BY THE FEDERAL DISTRICT COURT TO OUR DENIAL OF CERTIORARI
SHOULD NOT BE TAKEN AS AN INDICATION THAT SIMILAR TREATMENT IS TO BE
ACCORDED TO THE ORDERS OF THE STATE COURTS.  SO FAR AS WEIGHT TO BE
GIVEN THE PROCEEDINGS IN THE COURTS OF THE STATE IS CONCERNED, A UNITED
STATES DISTRICT COURT, WITH ITS FAMILIARITY WITH STATE PRACTICE IS IN
FAVORABLE POSITION TO RECOGNIZE ADEQUATE STATE GROUNDS IN DENIALS OF
RELIEF BY STATE COURTS WITHOUT OPINION.  A FORTIORI, WHERE THE STATE
ACTION BASED ON AN ADEQUATE STATE GROUND, NO FURTHER EXAMINATION IS
REQUIRED, UNLESS NO STATE REMEDY FOR THE DEPRIVATION OF FEDERAL
CONSTITUTIONAL RIGHTS EVER EXISTED.  MOONEY V. HOLOHAN, 294 U.S. 103;
EX PARTE HAWK, 321 U.S. 114.  FURTHERMORE, WHERE THERE IS MATERIAL
CONFLICT OF FACT IN THE TRANSCRIPTS OF EVIDENCE AS TO DEPRIVATION OF
CONSTITUTIONAL RIGHTS, THE DISTRICT COURT MAY PROPERLY DEPEND UPON THE
STATE'S RESOLUTION OF THE ISSUE.  MALINSKI V. NEW YORK, 324 U.S. 401,
404.  IN OTHER CIRCUMSTANCES THE STATE ADJUDICATION CARRIES THE WEIGHT
THAT FEDERAL PRACTICE GIVES TO THE CONCLUSION OF A COURT OF LAST RESORT
OF ANOTHER JURISDICTION ON FEDERAL CONSTITUTIONAL ISSUES.  IT IS NOT
RES JUDICATA.  (FN6) 

FURTHERMORE, IN VIEW OF THE CONSIDERATION THAT WAS GIVEN BY THE
DISTRICT COURT TO OUR DENIAL OF CERTIORARI IN THESE CASES, SHOULD WE
RETURN THEM TO THAT COURT FOR REEXAMINATION IN THE LIGHT OF THIS
COURT'S RULING UPON THE EFFECT TO BE GIVEN TO THE DENIAL?  WE THINK
NOT.  FROM THE FINDINGS OF FACT AND THE JUDGMENTS OF THE DISTRICT COURT
WE CANNOT SEE THAT SUCH CONSIDERATION AS WAS GIVEN BY THAT COURT TO OUR
DENIALS OF CERTIORARI COULD HAVE HAD ANY EFFECT ON ITS CONCLUSIONS AS
TO WHETHER THE RESPECTIVE DEFENDANTS HAD BEEN DENIED FEDERAL
CONSTITUTIONAL PROTECTION.  (FN7)  IT IS TRUE, UNDER THE COURT'S RULING
TODAY, THAT THE DISTRICT COURT IN EACH OF THE THREE CASES ERRONEOUSLY
GAVE CONSIDERATION TO OUR DENIAL OF CERTIORARI.  IT IS ALSO TRUE THAT
ITS RULINGS, SET OUT ABOVE, SHOW THAT WITHOUT THAT CONSIDERATION, IT
FOUND FROM ITS EXAMINATION OF THE STATE RECORDS AND NEW EVIDENCE
PRESENTED THAT THE CONDUCT OF THE RESPECTIVE STATE PROCEEDINGS WAS IN
FULL ACCORD WITH DUE PROCESS.  SUCH CONCLUSIONS MAKE IMMATERIAL THE
FACT THAT THE TRIAL COURT GAVE CONSIDERATION TO OUR DENIAL OF
CERTIORARI. 

THE DISTRICT COURT AND THE COURT OF APPEALS RECOGNIZED THE POWER OF
THE DISTRICT COURT TO REEXAMINE FEDERAL CONSTITUTIONAL ISSUES EVEN
AFTER TRIAL AND REVIEW BY A STATE AND REFUSAL OF CERTIORARI IN THIS
COURT.  DARR V. BURFORD, 339 U.S., AT 214.  THE INTIMATION TO THE
CONTRARY IN THE SPELLER CASE, 99 F. SUPP., AT 95, SEE P. 453, SUPRA,
MUST BE READ AS THE COURT'S OPINION AFTER THE HEARING.  "IN THE REVIEW
OF JUDICIAL PROCEEDINGS THE RULE IS SETTLED THAT IF THE DECISION BELOW
IS CORRECT, IT MUST BE AFFIRMED, ALTHOUGH THE LOWER COURT RELIED UPON A
WRONG GROUND OR GAVE A WRONG REASON."  (FN8)  CERTAINLY THE
CONSIDERATION GIVEN BY THE DISTRICT COURT TO OUR FORMER REFUSALS OF
CERTIORARI ON THE ISSUES PRESENTED CANNOT AFFECT ITS DETERMINATIONS
THAT THERE WAS NO MERIT IN ANY OF THE APPLICATIONS FOR HABEAS CORPUS. 
98 F. SUPP. 868, 870; 99 F. SUPP. 97, 99; 99 F. SUPP. AT 216.  WHERE IT
IS MADE TO APPEAR AFFIRMATIVELY, AS HERE, THAT THE ALLEGED ERROR COULD
NOT AFFECT THE RESULT, SUCH ERRORS MAY BE DISREGARDED EVEN IN THE
REVIEW OF CRIMINAL TRIALS.  (FN9)  WHETHER WE AFFIRM OR REVERSE IN
THESE CASES, THEREFORE, DOES NOT DEPEND UPON THE TRIAL COURT'S
CONSIDERATION OF OUR DENIAL OF CERTIORARI BUT UPON THE SOUNDNESS OF ITS
DECISIONS UPON THE ISSUES OF ALLEGED VIOLATION OF FEDERAL PROCEDURAL
REQUIREMENTS OR OF PETITIONER'S CONSTITUTIONAL RIGHTS BY THE NORTH
CAROLINA PROCEEDINGS.  WE NOW TAKE UP THOSE PROBLEMS. 

                    III.  RIGHT TO PLENARY HEARING. 

PETITIONER ALLEGES A PROCEDURAL ERROR IN NO. 32, BROWN V. ALLEN.  AS
WE STATED IN THE PRECEDING SUBDIVISION, THE WRIT OF HABEAS CORPUS WAS
REFUSED ON THE ENTIRE RECORD OF THE RESPECTIVE STATE AND FEDERAL
COURTS.  98 F. SUPP. 866.  IT IS PETITIONER'S CONTENTION, HOWEVER, THAT
THE DISTRICT COURT COMMITTED ERROR WHEN IT TOOK NO EVIDENCE AND HEARD
NO ARGUMENT ON THE FEDERAL CONSTITUTIONAL ISSUES.   HE CONTENDS HE IS
ENTITLED TO A PLENARY TRIAL OF HIS FEDERAL CONSTITUTIONAL ISSUES IN THE
DISTRICT COURT.  HE ARGUES THAT THE FEDERAL DISTRICT COURT, WITH
JURISDICTION OF THE PARTICULAR HABEAS CORPUS, MUST EXERCISE ITS
JUDICIAL POWER TO HEAR AGAIN THE CONTROVERSY NOTWITHSTANDING PRIOR
DETERMINATIONS OF SUBSTANTIALLY IDENTICAL FEDERAL ISSUES BY THE HIGHEST
STATE COURT, EITHER ON DIRECT REVIEW OF THE CONVICTION OF BY POST
CONVICTION REMEDY, HABEAS CORPUS, CORAM NOBIS, DELAYED APPEAL OR
OTHERWISE.  (FN10) 

JURISDICTION OVER APPLICATIONS FOR FEDERAL HABEAS CORPUS IS
CONTROLLED BY STATUTE.  (FN11)  THE CODE DIRECTS A COURT ENTERTAINING
AN APPLICATION TO AWARD THE WRIT.  (FN12)  BUT AN APPLICATION IS NOT
"ENTERTAINED" BY A MERE FILING.  LIBERAL AS THE COURTS ARE AND SHOULD
BE AS TO PRACTICE IN SETTING OUT CLAIMED VIOLATIONS OF CONSTITUTIONAL
RIGHTS, THE APPLICANT MUST MEET THE STATUTORY TEST OF ALLEGING FACTS
THAT ENTITLE HIM TO RELIEF.  (FN13) 

THE WORD "ENTERTAIN" PRESENTS DIFFICULTIES.  ITS MEANING MAY VARY
ACCORDING TO ITS SURROUNDINGS.  (FN14)  IN SEC. 2243 AND SEC. 2244 WE
THINK IT MEANS A FEDERAL DISTRICT COURT'S CONCLUSION, AFTER EXAMINATION
OF THE APPLICATION WITH SUCH ACCOMPANYING PAPERS AS THE COURT DEEMS
NECESSARY, THAT A HEARING ON THE MERITS LEGAL OR FACTUAL IS PROPER. 
SEE WALKER V. JOHNSTON, 312 U.S. 275, 283, FIRST AND SECOND; SMITH V.
BALDI, POST, P. 561, AT P. 568.  EVEN AFTER DECIDING TO ENTERTAIN THE
APPLICATION, THE DISTRICT COURT MAY DETERMINE LATER FROM THE RETURN OR
OTHERWISE THAT THE HEARING IS UNNECESSARY. 

IT IS CLEAR BY STATUTORY ENACTMENT THAT A FEDERAL DISTRICT COURT IS
NOT REQUIRED TO ENTERTAIN AN APPLICATION FOR HABEAS CORPUS IF IT
APPEARS THAT "THE LEGALITY OF SUCH DETENTION HAS BEEN DETERMINED BY A
JUDGE OR COURT OF THE UNITED STATES ON A PRIOR APPLICATION FOR A WRIT
OF HABEAS CORPUS."  (FN15)  THE REVISER'S NOTES TO THIS SECTION IN
HOUSE REPORT NO. 308, 80TH CONG., 1ST SESS., SAY THAT NO MATERIAL
CHANGE IN EXISTING PRACTICE IS INTENDED.  NOTHING ELSE INDICATES THAT
THE PURPOSE OF CONGRESS WAS TO RESTRICT BY THE ADOPTION OF THE CODE OF
1948 THE DISCRETION OF THE DISTRICT COURT, IF IT HAD SUCH DISCRETION
BEFORE, TO ENTERTAIN PETITIONS FROM STATE PRISONERS WHICH RAISED THE
SAME ISSUES RAISED IN THE STATE COURTS.  (FN16) 

FURTHERMORE, IN ENACTING 28 U.S.C. SEC. 2254, DEALING WITH PERSONS IN
CUSTODY UNDER STATE JUDGMENTS, CONGRESS MADE NO REFERENCE TO THE POWER
OF A FEDERAL DISTRICT COURT OVER FEDERAL HABEAS CORPUS FOR CLAIMED
WRONGS PREVIOUSLY PASSED UPON BY STATE COURTS.  (FN17)  SEE DISCUSSION
AT P. 447, SUPRA.  A FEDERAL JUDGE ON A HABEAS CORPUS APPLICATION IS
REQUIRED TO "SUMMARILY HEAR AND DETERMINE THE FACTS, AND DISPOSE OF THE
MATTER AS LAW AND JUSTICE REQUIRE," 28 U.S.C. SEC. 2243.  THIS HAS LONG
BEEN THE LAW.  R.S. SEC. 761, OLD 28 U.S.C.  SEC. 461.  IT WAS UNDER
THIS GENERAL RULE THAT THIS COURT APPROVED IN SALINGER V. LOISEL, 265
U.S. 224, 231, THE PROCEDURE THAT A FEDERAL JUDGE MIGHT REFUSE A WRIT
WHERE APPLICATION FOR ONE HAD BEEN MADE TO AND REFUSED BY ANOTHER
FEDERAL JUDGE AND THE SECOND JUDGE IS OF THE OPINION THAT IN THE LIGHT
OF THE RECORD A SATISFACTORY CONCLUSION HAS BEEN REACHED.  (FN18)  THAT
PRINCIPLE IS ALSO APPLICABLE TO STATE PRISONERS.  DARR B. BURFORD,
SUPRA, 214-215.    APPLICATIONS TO DISTRICT COURTS ON GROUNDS
DETERMINED ADVERSELY TO THE APPLICANT BY STATE COURTS SHOULD FOLLOW THE
SAME PRINCIPLE - A REFUSAL OF THE WRIT WITHOUT MORE, IF THE COURT IS
SATISFIED, BY THE RECORD, THAT THE STATE PROCESS HAS GIVEN FAIR
CONSIDERATION TO THE ISSUES AND THE OFFERED EVIDENCE, AND HAS RESULTED
IN A SATISFACTORY CONCLUSION.  WHERE THE RECORD OF THE APPLICATION
AFFORDS AN ADEQUATE OPPORTUNITY TO WEIGH THE SUFFICIENCY OF THE
ALLEGATIONS AND THE EVIDENCE, AND NO UNUSUAL CIRCUMSTANCES CALLING FOR
A HEARING ARE PRESENTED, A REPETITION OF THE TRIAL IS NOT REQUIRED. 
SEE P. 457, SUPRA.  HOWEVER, A TRIAL MAY BE HAD IN THE DISCRETION OF
THE FEDERAL COURT OR JUDGE HEARING THE NEW APPLICATION.  A WAY IS LEFT
OPEN TO REDRESS VIOLATIONS OF THE CONSTITUTION.  SEE P. 447, SUPRA.
MOORE V. DEMPSEY, 261 U.S. 86.  ALTHOUGH THEY HAVE THE POWER, IT IS NOT
NECESSARY FOR FEDERAL COURTS TO HOLD HEARINGS ON THE MERITS, FACTS OR
LAW A SECOND TIME WHEN SATISFIED THAT FEDERAL CONSTITUTIONAL RIGHTS
HAVE BEEN PROTECTED.  (FN19)  IT IS NECESSARY TO EXERCISE JURISDICTION
TO THE EXTENT OF DETERMINING BY EXAMINATION OF THE RECORD WHETHER OR
NOT A HEARING WOULD SERVE THE ENDS OF JUSTICE.  CF. 28 U.S.C. SEC.
2244.  SEE N. 15, SUPRA.  AS THE STATE AND FEDERAL COURTS HAVE THE SAME
RESPONSIBILITIES TO PROTECT PERSONS FROM VIOLATION OF THEIR
CONSTITUTIONAL RIGHTS, WE CONCLUDE THAT A FEDERAL DISTRICT COURT MAY
DECLINE, WITHOUT A REHEARING OF THE FACTS, TO AWARD A WRIT OF HABEAS
CORPUS TO A STATE PRISONER WHERE THE LEGALITY OF SUCH DETENTION HAS
BEEN DETERMINED, ON THE FACTS PRESENTED, BY THE HIGHEST STATE COURT
WITH JURISDICTION, WHETHER THROUGH AFFIRMANCE OF THE JUDGMENT ON APPEAL
OR DENIAL OF POST-CONVICTION REMEDIES.  SEE WHITE V. RAGEN, 324 U.S.
760, 764. 

AS WILL PRESENTLY APPEAR, THIS CASE INVOLVES NO EXTRAORDINARY
SITUATION.  SINCE THE COMPLETE RECORD WAS BEFORE THE DISTRICT COURT,
THERE WAS NO NEED FOR REHEARING OR TAKING OF FURTHER EVIDENCE. 
TREATING THE STATE'S RESPONSE TO THE APPLICATION AS A MOTION TO
DISMISS, THE COURT PROPERLY GRANTED THAT MOTION.  DISCHARGE FROM
CONVICTION THROUGH HABEAS CORPUS IS NOT AN ACT OF JUDICIAL CLEMENCY BUT
A PROTECTION AGAINST ILLEGAL CUSTODY. 

THE NEED FOR ARGUMENT IS A MATTER OF JUDICIAL DISCRETION.  ALL ISSUES
WERE ADEQUATELY PRESENTED.  THERE WAS NO ABUSE. 

                 IV. DISPOSITION OF CONSTITUTIONAL ISSUES. 

NEXT WE DIRECT OUR ATTENTION TO THE RECORDS WHICH WERE BEFORE THE
DISTRICT COURT IN ORDER TO REVIEW THAT COURT'S CONCLUSIONS THAT NORTH
CAROLINA ACCORDED PETITIONERS A FAIR ADJUDICATION OF THEIR FEDERAL
QUESTIONS.  QUESTIONS OF DISCRIMINATION AND ADMISSION OF COERCED
CONFESSIONS LIE IN THE COMPASS OF THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMENDMENT.  HAVE PETITIONERS RECEIVED
HEARINGS CONSONANT WITH STANDARDS ACCEPTED BY THIS NATION AS ADEQUATE
TO JUSTIFY THEIR CONVICTIONS?  HEBERT V. LOUISIANA, 272 U.S. 312;
ADAMSON V. CALIFORNIA, 332 U.S. 46. 

FIRST.  WE TAKE UP BROWN V. ALLEN, NO. 32, A CASE THAT TURNS MORE
GENERALLY THAN THE OTHERS ON THE CONSTITUTIONAL ISSUES. 

PETITIONER, A NEGRO, WAS INDICTED ON SEPTEMBER 4, 1950, AND TRIED IN
THE NORTH CAROLINA COURTS ON A CHARGE OF RAPE, AND, HAVING BEEN FOUND
GUILTY, HE WAS SENTENCED TO DEATH ON SEPTEMBER 15, 1950.  IN THE
SENTENCING COURT PETITIONER MADE A TIMELY MOTION TO QUASH THE BILL OF
INDICTMENT, ALLEGING DISCRIMINATION AGAINST NEGROES IN THE SELECTION OF
GRAND JURORS IN CONTRAVENTION OF THE GUARANTEES OF THE FOURTEENTH
AMENDMENT TO THE FEDERAL CONSTITUTION.  AFTER THE VERDICT, BUT BEFORE
SENTENCING, PETITIONER, BY A MOTION TO SET ASIDE THE VERDICT, SOUGHT TO
EXPAND HIS CONSTITUTIONAL ATTACK ON THE SELECTION OF THE GRAND JURY TO
EMBRACE THE PETIT JURY ALSO.  ON APPEAL THE STATE SUPREME COURT
TREATED, AS WE DO, PETITIONER'S MOTIONS AS ADEQUATE TO CHALLENGE THE
SELECTION OF BOTH JURIES.  233 N.C. 202, 205-206, 63 S.E.2D 99, 100
101.  A SECOND FEDERAL QUESTION WAS RAISED IN THE SENTENCING COURT WHEN
PETITIONER OPPOSED ADMISSION INTO EVIDENCE OF A CONFESSION WHICH HE
ALLEGED HAD BEEN GIVEN INVOLUNTARILY.  FOLLOWING SENTENCING, PETITIONER
TOOK AN APPEAL TO THE STATE SUPREME COURT AND THERE PRESENTED FOR
REVIEW THE ISSUES OF JURY DISCRIMINATION AND ADMISSION OF A COERCED
CONFESSION.  ON THIS APPEAL, THAT COURT HAD BEFORE IT BOTH A BRIEF ON
BEHALF OF PETITIONER AND A TRANSCRIPT OF ALL THOSE PORTIONS OF THE
SENTENCING COURT PROCEEDINGS WHICH PETITIONER DEEMED RELEVANT TO A
REVIEW OF HIS FEDERAL QUESTIONS.  (FN20)  DEALING WITH THE FEDERAL
CONSTITUTIONAL QUESTIONS ON THEIR MERITS, THE STATE SUPREME COURT
AFFIRMED THE CONVICTION.  STATE V. BROWN, 233 N.C. 202, 63 S.E.2D 99. 

A. PETITIONER'S CHARGE OF DISCRIMINATION AGAINST NEGROES IN THE
SELECTION OF GRAND AND PETIT JURORS IN VIOLATION OF HIS CONSTITUTIONAL
RIGHTS ATTACKS THE OPERATION OF A METHOD USED BY NORTH CAROLINA IN
SELECTING JURIES IN FORSYTH COUNTY.  THE STATUTES DETAILING THE METHOD
OF SELECTION ARE CITED BELOW.  (FN21)  IT IS PETITIONER'S CONTENTION
THAT NO MORE THAN ONE OR TWO NEGROES AT A TIME HAVE EVER SERVED ON A
FORSYTH COUNTY GRAND JURY AND THAT NO MORE THAN FIVE NEGROES HAVE EVER
PREVIOUSLY SERVED ON A PETIT JURY PANEL IN THE COUNTRY.  THESE
CONTENTIONS ARE THE BASIS OF THE ALLEGATION THAT A SYSTEM OF
DISCRIMINATION IS BEING EMPLOYED AGAINST THE NEGRO RESIDENTS OF THE
COUNTY.  PETITIONER OFFERED NO EVIDENCE TO SUPPORT HIS CHARGE OF
LIMITATION AGAINST THE JURY SERVICE OF NEGROES, EXCEPT THE FACT THAT
FEWER NEGROES THAN WHITES, HAVING REGARD FOR THEIR PROPORTION OF THE
POPULATION, APPEARED ON THE JURY PANELS. 

THE 1940 CENSUS SHOWS THE FOLLOWING FIGURES IN RESPECT TO THE
POPULATION OF FORSYTH COUNTY. 

      POPULATION      PERCENT       21 PLUS      PERCENT 

WHITE                            85,323         67.5 50,499
66.5 

NEGRO                            41,152         32.5          25,057
  33.5 

TOTAL                 126,475        100.0          75,556
100.0 

ACCORDING TO THE UNCHALLENGED TESTIMONY OF THE IBM SUPERVISOR IN THE
OFFICE OF THE TAX SUPERVISOR OF FORSYTH COUNTY, A LIST OF NAMES IS
COMPILED FROM A TABULATION OF ALL THE COUNTY PROPERTY AND POLL
TAXPAYERS WHO MAKE RETURNS AND IS THEREAFTER TENDERED TO THE COUNTY
COMMISSIONERS FOR USE IN JURY SELECTION.  ALL MALES BETWEEN 21 AND 50
YEARS OF AGE ARE REQUIRED TO LIST THEMSELVES FOR POLL TAX AS WELL AS TO
LIST THEIR PROPERTY.  GEN.  STAT. OF NORTH CAROLINA, RECOMPILED 1950,
SECS. 105-307, 105-341.  IN 1948, WINSTON TOWNSHIP, THE MOST HEAVILY
POPULATED IN FORSYTH COUNTY, HAD 7,659 WHITE MALES AND 2,752 COLORED
MALES WHO LISTED POLLS.  IN THE COUNTY OF FORSYTH OUTSIDE WINSTON
TOWNSHIP, 10,319 WHITE MALES MALES AND 587 COLORED MALES LISTED POLLS. 
THIS INDICATES THAT NEGROES NUMBER APPROXIMATELY 16% OF THE LISTED
TAXPAYERS.  NO FIGURES APPEAR IN THE RECORD OF THE PERCENTAGE OF
NEGROES ON THE PROPERTY TAX LISTS. 

IN JUNE 1949, A LIST OF APPROXIMATELY 40,000 NAMES COMPILED FROM ALL
THE TAX LISTS WAS HANDED TO THE COMMISSIONERS BY THE OFFICE OF THE TAX
SUPERVISOR.  THERE IS UNCONTRADICTED TESTIMONY BY THE IBM SUPERVISOR
THAT THE LIST OF JURORS WAS PREPARED WITHOUT REGARD TO COLOR, AND THAT
IT CONSTITUTED A COMPLETE COMPILATION OF THE NAMES OF ALL RESIDENT,
ADULT, LISTED TAXPAYERS OF FORSYTH COUNTY.  BOTH THE GRAND AND PETIT
JURY PANELS EMPLOYED IN THIS CASE WERE DRAWN FROM THAT POOL.  ALL THE
NAMES ON THAT LIST AND NO OTHERS (THE LIST HAVING BEEN CUT UP INTO
INDIVIDUAL SLIPS OF UNIFORM SIZE BEARING ONLY ONE PERSON'S NAME) WERE
PUT INTO A JURY BOX.  THE SELECTION FROM THE JURY BOX OF NAMES OF
PERSONS SUBJECT TO A SUMMONS TO SERVE AS GRAND JURORS IN A TERM OF
COURT IS MADE BY LOT, AS IS THE SELECTION OF PANELS OF PERSONS SUBJECT
TO SUMMONS FOR DUTY ON PETIT JURIES.  AS THE DRAWINGS WERE MADE BY A
SMALL CHILD AND RECORDED IN PUBLIC THERE IS NO CLAIM OR EVIDENCE OF
CHICANERY IN THE DRAWINGS. 

GRAND JURORS IN FORSYTH COUNTY ARE SELECTED IN JANUARY AND JULY FOR A
SIX MONTHS' TERM.  SEE C. 206, 1937 PUBLIC-LOCAL LAWS, AS AMENDED BY C.
264, 1947 N.C. SESSION LAWS, AS AMENDED BY C. 577, 1949 N.C. SESSION
LAWS.  A PANEL OF 60 NAMES IS DRAWN FROM THE JURY BOX EACH DECEMBER AND
JUNE BY A CHILD IN THE PRESENCE OF THE COUNTY COMMISSIONERS.  AT THE
JUNE 5, 1950, MEETING OF THE COMMISSIONERS, 60 NAMES WERE DRAWN.  THESE
60 NAMES CONSTITUTED THE PANEL OF PERSONS SUBJECT TO SUMMONS FOR
SERVICE ON THE GRAND JURY WHICH RETURNED THE INDICTMENT AGAINST
PETITIONER.  AFTER SUCH A DRAWING, A JURY ORDER IS IMMEDIATELY PREPARED
AND GIVEN TO THE SHERIFF, WHO THEN SUMMONS ALL THE PARTIES HE CAN FIND
TO APPEAR FOR DRAWINGS FOR GRAND OR PETIT JURY SERVICE, AS THE CASE MAY
BE.  ALL PERSONS WHOSE NAMES WERE DRAWN WERE SUMMONED IF THEY COULD BE
FOUND.  ALTHOUGH THERE IS NO EVIDENCE AS TO HOW MANY PERSONS WERE
SUMMONED BY THE SHERIFF, THERE IS EVIDENCE TO SHOW THAT AT LEAST FOUR
OR FIVE NEGROES WERE SUMMONED.  THE FINAL DRAWING FOR GRAND JURY
SERVICE IS CONDUCTED IN THE COURTROOM IN THE PRESENCE OF THE SUPERIOR
COURT JUDGE.  WHEN THE JULY 1950 GRAND JURY WAS SELECTED FROM THE PANEL
OF 60, THE DRAWING WAS AGAIN MADE BY A CHILD.  THE NAMES OF ALL THE
PERSONS SUMMONED BY THE SHERIFF WERE PUT INTO A SPECIAL SECTION OF THE
JURY BOX AND THE 18-MAN GRAND JURY WAS THEN DRAWN.  THE NAME OF ONE OF
THE FOUR OR FIVE NEGROES SUMMONED WAS DRAWN IN THE GROUP OF 18, AND
THAT NEGRO SERVED ON THE GRAND JURY.  THE REMAINING NAMES ARE USED FOR
THE PETIT JURY PANEL. 

WHEN THEY ARE NEEDED, PETIT JURY PANELS IN FORSYTH COUNTY ARE DRAWN
FROM THE SAME JURY BOX IN GROUPS OF 44 PERSONS.  C. 206, PUBLIC LOCAL
LAWS, SUPRA.  AFTER A DRAWING, THE NAMES ARE GIVEN TO A DEPUTY SHERIFF
WHO THEN SUMMONS THOSE PERSONS ON THE LIST WHOM HE CAN FIND.  ON THE
LISTS SUPPLIED TO THE DEPUTIES THERE ARE NO INDICATIONS AS TO WHETHER
THE PERSONS NAMED ARE NEGRO OR WHITE.  ACCORDING TO THE STATUTE ALL
SUMMONED PERSONS MUST REPORT FOR JURY SERVICE.  AT THE SELECTION OF THE
PETIT JURORS FOR THE TRIAL OF THIS CASE 8 OF THE 37 PERSONS SUMMONED ON
THE PANEL WERE NEGROES, AS WERE 3 OF A SPECIAL VENIRE OF 20. 
CHALLENGES, PEREMPTORY OR FOR CAUSE, ELIMINATED ALL NEGROES.  NO
OBJECTIONS ARE MADE TO THE LEGALITY OF THESE CHALLENGES. 
UNCONTRADICTED EVIDENCE BY A STATE WITNESS SHOWS THAT IN THE TWO YEARS
1949 AND 1950 THE PERCENTAGES OF NEGROES DRAWN ON GRAND JURY PANELS IN
FORSYTH COUNTY VARIED BETWEEN 7% AND 10% OF ALL PERSONS DRAWN.  IN 1950
THE PERCENTAGE OF NEGROES DRAWN ON PETIT JURY PANELS VARIED BETWEEN 9%
AND 17% OF ALL PERSONS DRAWN. 

PRIOR TO 1947, THE JURY LIST WAS COMPOSED OF THOSE TAXPAYERS WHO HAD
"PAID ALL THE TAXES ASSESSED AGAINST THEM FOR THE PRECEDING YEAR." 
N.C. GEN. STAT., 1943, SEC. 9-1; CF. STATE V. DAVIS, 109 N.C. 780, 14
S.E. 55; STATE V. DIXON, 131 N.C. 808, 44 S.E. 944.  THIS REQUIREMENT
HAS NOW BEEN REMOVED, AS IS SHOWN BY COMPARING THE EARLIER STATUS WITH
THE PRESENT WORDING OF SEC. 9-1 WHICH WAS PUT INTO LAW IN 1947.  NO
CHANGE WAS MADE IN THE DUTY OF ALL MALES BETWEEN 21 AND 50 TO LIST
THEIR POLLS FOR ASSESSMENT NOR OF THE REQUIREMENT FOR THE COUNTY TO
COLLECT AN ANNUAL POLL TAX.  GEN. STAT. SECS. 105-307, 105-336, 105
339, 105-341; CF. STATE V. BROWN, 233 N.C. 202, 205, 63 S.E.2D 99, 100
101.  THE POOL OF ELIGIBLE JURORS WAS THUS ENLARGED.  THIS ENLARGEMENT
AND THE PRACTICE OF SELECTING JURORS UNDER THE NEW STATUTE WORKED A
RADICAL CHANGE IN THE RACIAL PROPORTIONS OF DRAWINGS OF JURORS IN
FORSYTH COUNTY.  AS IS SHOWN BY THE RECORD IN THIS COURT OF BRUNSON V.
NORTH CAROLINA, 333 U.S. 851, TRIED IN NORTH CAROLINA IN OCTOBER, 1946,
FORSYTH COUNTY WITH ITS LARGE NEGRO POPULATION, AT THAT TIME HAD A JURY
POOL OF 10,622 WHITE AND 255 COLORED CITIZENS.  AT THAT TIME A SHERIFF,
THEN IN OFFICE FOR 10 YEARS, TESTIFIED THAT HE HAD SUMMONED ONLY ABOUT
TWELVE NEGROES FOR JURY SERVICE IN THAT TIME.  IN 1949, THE JURY BOX
WAS PURGED.  ALL THOSE LISTING TAXES AND ELIGIBLE WERE LISTED FOR JURY
SERVICE WITH THE RESULT IN THIS CASE SHOWN ABOVE. 

DISCRIMINATIONS AGAINST A RACE BY BARRING OR LIMITING CITIZENS OF
THAT RACE FROM PARTICIPATION IN JURY SERVICE ARE ODIOUS TO OUR THOUGHT
AND OUR CONSTITUTION.  THIS HAS LONG BEEN ACCEPTED AS THE LAW.  BRUNSON
V. NORTH CAROLINA, 333 U.S. 851; CASSELL V. TEXAS, 339 U.S. 282, 286
287; STATE V. PEOPLES, 131 N.C. 784, 42 S.E. 814.  SUCH DISCRIMINATION
IS FORBIDDEN BY STATUTE, 18 U.S.C. SEC. 243, AND HAS BEEN TREATED AS A
DENIAL OF EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT TO AN
ACCUSED, OF THE RACE AGAINST WHICH SUCH DISCRIMINATION IS DIRECTED. 
NEAL V. DELAWARE, 103 U.S. 370.   THE DISCRIMINATION FORBIDDEN IS
RACIAL DISCRIMINATION, HOWEVER, DIRECTED TO ACCOMPLISH THE RESULT OF
ELIMINATING OR LIMITING THE SERVICE OF THE PROSCRIBED RACE BY STATUTE
OR BY PRACTICE.  SMITH V. TEXAS, 311 U.S. 128; PATTON V. MISSISSIPPI,
332 U.S. 463.  IT WAS EXPLAINED IN 1880 BY THIS COURT, WHEN COMPOSED OF
JUSTICES FAMILIAR WITH THE EVILS THE AMENDMENT SOUGHT TO REMEDY, AS
PERMITTING A STATE TO "CONFINE THE SELECTION OF JURORS TO MALES, TO
FREEHOLDERS, TO CITIZENS, TO PERSONS WITHIN CERTAIN AGES OR TO PERSONS
HAVING EDUCATIONAL QUALIFICATIONS."  STRAUDER V. WEST VIRGINIA, 100
U.S. 303, 310.  CF. FRANKLIN V. SOUTH CAROLINA, 218 U.S. 161, 167-168;
FAY V. NEW YORK, 332 U.S. 261, 268-272.  WHILE DISCRIMINATIONS WORKED
BY CONSISTENT EXCLUSION HAVE BEEN RIGOROUSLY DEALT WITH, NEAL V.
DELAWARE, 103 U.S. 370; CARTER V. TEXAS, 177 U.S. 442; NORRIS V.
ALABAMA, 294 U.S. 587; PIERRE V. LOUISIANA, 306 U.S. 354; HILL V.
TEXAS, 316 U.S. 400; PATTON V. MISSISSIPPI, 332 U.S. 463, VARIATIONS IN
PROPORTIONS OF NEGROES AND WHITES ON JURY LISTS FROM RACIAL PROPORTIONS
IN THE POPULATION WHERE THEY ARE EXPLAINED AND NOT LONG CONTINUED. 
AKINS V. TEXAS, 325 U.S. 398, 403.  OF COURSE, TOKEN SUMMONING OF
NEGROES FOR JURY SERVICE DOES NOT COMPLY WITH EQUAL PROTECTION, SMITH
V. TEXAS, 311 U.S. 128.  NOR CAN A RACE BE PROSCRIBED AN INCOMPETENT
FOR SERVICE, HILL V. TEXAS, 316 U.S.  400.    RESPONSIBLE AS THIS COURT
IS UNDER THE CONSTITUTION TO REDRESS THE JURY PACKING WHICH BENTHAM
PROPERLY CHARACTERIZED AS A SINISTER SPECIES OF ART, BENTHAM, ELEMENTS
OF THE ART OF PACKING AS APPLIED TO SPECIAL JURIES, P. 6, IT SHOULD NOT
CONDEMN GOOD FAITH EFFORTS TO SECURE COMPETENT JURIES MERELY BECAUSE OF
VARYING RACIAL PROPORTIONS. 

THE SUPREME COURT OF NORTH CAROLINA CONCLUDED THAT OBJECTION TO THE
LISTS BASED ON THE RACIAL COMPOSITION OF THE TAX LISTS WAS "FAR
FETCHED" AND THAT IT WAS NOT A RACIAL DISCRIMINATION WHEN A LIST WHICH
INCLUDED ONLY TAXPAYERS WAS USED.  STATE V. BROWN, 233 N.C. 202, 63
S.E.2D 99.  (FN22) WE RECOGNIZE THE FACT THAT THESE LISTS HAVE A HIGHER
PROPORTION OF WHITE CITIZENS THAN OF COLORED, DOUBTLESS DUE TO
INEQUALITY OF EDUCATIONAL AND ECONOMIC OPPORTUNITIES.  WHILE THOSE WHO
CHOSE THE NAMES FOR THE JURY LISTS MIGHT HAVE INCLUDED NAMES OTHER THAN
TAXPAYERS, SUCH ACTION WAS NOT MANDATORY UNDER STATE LAW.  STATE V.
BROWN, 233 N.C. 202, 205, 63 S.E.2D 99, 100.  AS ONLY PROPERTY AND POLL
TAX LISTS WERE USED, SEE P. 467, SUPRA, THIS CASE PRESENTS A JURY
SELECTION AS THOUGH LIMITED BY STATUTE TO ALL PROPERTY OWNERS AND
VOTERS.  WE ASSUME ONLY REASONABLE TAX LEVIES WERE USED.  IT IS TO BE
NOTED ALL MALES BETWEEN 21 AND 50 MUST LIST BOTH PROPERTY, HOWEVER
MODEST IN AMOUNT, AND POLLS, SEE PP.  467-468, SUPRA, SO THAT IN THAT
SENSE THERE IS NO EXCLUSION ON RACIAL GROUNDS.  THE NAME OF EVERY
PROPERTY OWNER AND EVERY VOTER IS IN THE JURY BOX.  WE RECOGNIZE, TOO,
THAT WE ARE NOW REVIEWING A CONSTITUTIONAL OBJECTION TO A STATE COURT
CONVICTION, AND WE MAY NOT ACT TO ALTER PRACTICES OF A STATE WHICH ARE
SHORT OF A DENIAL OF EQUAL PROTECTION OR DUE PROCESS IN THE SELECTION
OF JURIES.  (FN23)  STATES SHOULD DECIDE FOR THEMSELVES THE QUALITY OF
THEIR JURIES AS BEST FITS THEIR SITUATION SO LONG AS THE
CLASSIFICATIONS HAVE RELATION TO THE EFFICIENCY OF THE JURORS AND ARE
EQUALLY ADMINISTERED. 

OUR DUTY TO PROTECT THE FEDERAL CONSTITUTIONAL RIGHTS OF ALL DOES NOT
MEAN WE MUST OR SHOULD IMPOSE ON STATES OUR CONCEPTION OF THE PROPER
SOURCE OF JURY LISTS, SO LONG AS THE SOURCE REASONABLY REFLECTS A CROSS
THAT CIVIC DUTY.  SHORT OF AN ANNUAL CENSUS OR REQUIRED POPULATION
REGISTRATION, THESE TAX LISTS OFFER THE MOST COMPREHENSIVE SOURCE OF
AVAILABLE NAMES.  WE DO NOT THINK A USE, NONDISCRIMINATORY AS TO RACE,
OF THE TAX LISTS VIOLATES THE FOURTEENTH AMENDMENT, NOR CAN WE CONCLUDE
ON THE EVIDENCE ADDUCED THAT THE RESULTS OF THE USE REQUIRE A
CONCLUSION OF UNCONSTITUTIONALITY.  ASSUMING THAT BEFORE THE BRUNSON
CASE, 333 U.S. 851, THERE WERE UNCONSTITUTIONAL EXCLUSIONS OF NEGROES
IN THIS NORTH CAROLINA COUNTY, THE PRESENT RECORD DOES NOT SHOW SUCH
EXCLUSIONS IN THIS CASE.  THE EVIDENCE IS TO THE CONTRARY.  THE
DISTRICT COURT CORRECTLY DETERMINED THIS ISSUE AS TO THE GRAND JURY. 
AS BOTH THE GRAND AND PETIT JURIES IN THIS CASE WERE DRAWN FROM THE
SAME FILLING OF THE JURY BOX, THE REASONING OF THE DISTRICT COURT IS
APPLICABLE TO THE PETIT JURY HERE INVOLVED. 

B. PETITIONER CONTENDS FURTHER THAT HIS CONVICTION WAS PROCURED IN
VIOLATION OF THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION
BECAUSE THE TRIAL JUDGE PERMITTED THE JURY TO RELY ON A CONFESSION
CLAIMED BY PETITIONER TO BE COERCED IN DETERMINING HIS GUILT.  AT THE
TRIAL PETITIONER REGISTERED TIMELY OBJECTION TO USE BY THE STATE OF HIS
PURPORTED CONFESSIONS.  THE OBJECTION HAVING BEEN MADE, THE TRIAL JUDGE
IMMEDIATELY EXCUSED THE JURY AND ORDERED A PRELIMINARY EXAMINATION TO
DETERMINE WHETHER OR NOT THE STATEMENTS WERE VOLUNTARY.  IT WAS IN THIS
PRELIMINARY HEARING, IN WHICH THE PETITIONER AND TWO POLICE OFFICERS
TESTIFIED, THAT THE ADMITTED FACTS WERE FIRST DEVELOPED UPON WHICH
PETITIONER RESTS THIS PHASE OF HIS CASE.  AFTER HEARING THE TESTIMONY,
THE TRIAL JUDGE FOUND THAT THE PETITIONER'S STATEMENTS WERE FREELY AND
VOLUNTARILY GIVEN AND DECLARED THEM TO BE COMPETENT.  UPON RECALL OF
THE JURY, THE STATE INTRODUCED THE STATEMENTS IN EVIDENCE, OBJECTIONS
AGAIN BEING NOTED.  ALTHOUGH THE PETITIONER CHOSE NOT TO TAKE THE STAND
IN THE TRIAL OF HIS CAUSE, HIS COUNSEL, WHILE CROSS-EXAMINING THE
OFFICERS WHO HAD TAKEN THE CHALLENGED STATEMENTS FROM THE PETITIONER,
DEVELOPED AGAIN FOR THE JURY ALL THE FACTS UPON WHICH PETITIONER NOW
RELIES. 

A CONVICTION BY A TRIAL COURT WHICH HAS ADMITTED COERCED CONFESSIONS
DEPRIVES A DEFENDANT OF LIBERTY WITHOUT DUE PROCESS OF LAW.  BROWN V.
MISSISSIPPI, 297 U.S. 278, 280, 286-287.  WHEN THE FACTS ADMITTED BY
THE STATE SHOW COERCION, ASHCRAFT V. TENNESSEE, 327 U.S. 274, A
CONVICTION WILL BE SET ASIDE AS VIOLATIVE OF DUE PROCESS.  CHAMBERS V.
FLORIDA, 309 U.S. 227.  THIS IS TRUE EVEN THOUGH THE EVIDENCE APART
FROM THE CONFESSIONS MIGHT HAVE BEEN SUFFICIENT TO SUSTAIN THE JURY'S
VERDICT.  MALINSKI V. NEW YORK, 324 U.S. 401; SEE LYONS V. OKLAHOMA,
322 U.S. 596, 597. 

THEREFORE, IT DOES NOT MATTER IN THIS CASE WHETHER OR NOT THE JURY
WAS ACQUAINTED WITH ALL THE FACTS LAID BEFORE THE JUDGE UPON WHICH
PETITIONER NOW RELIES OR WHETHER THE JURY HEARD OR DID NOT HEAR THE
PETITIONER TESTIFY.  NEITHER DOES IT MATTER THAT THERE POSSIBLY IS
EVIDENCE IN THE RECORD INDEPENDENT OF THE CONFESSIONS WHICH COULD
SUSTAIN THE VERDICT.  THE MERE ADMISSION OF THE CONFESSIONS BY THE
TRIAL JUDGE CONSTITUTED A USE OF THEM BY THE STATE, AND IF THE
CONFESSIONS WERE IMPROPERLY OBTAINED, SUCH A USE CONSTITUTES A DENIAL
OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT.  IN
DETERMINING WHETHER A CONFESSION HAS BEEN USED BY THE STATE IN
VIOLATION OF THE CONSTITUTIONAL RIGHTS OF A PETITIONER, A UNITED STATES
COURT APPRAISES THE ALLEGED ABUSES BY THE FACTS AS SHOWN AT THE HEARING
OR ADMITTED ON THE RECORD. 

PETITIONER'S CONTENTION THAT HE HAD A CONSTITUTIONAL RIGHT TO HAVE
HIS STATEMENTS EXCLUDED FROM THE RECORD RESTS UPON THESE ADMITTED
FACTS.  HE IS AN ILLITERATE.  HE WAS HELD AFTER ARREST FOR FIVE DAYS
BEFORE BEING CHARGED WITH THE CRIME FOR WHICH HE WAS CONVICTED.  HE WAS
NOT GIVEN A PRELIMINARY HEARING UNTIL 18 DAYS AFTER HIS ARREST.  NO
COUNSEL WAS PROVIDED FOR HIM IN THE PERIOD OF HIS DETENTION.  THE
ALLEGED CONFESSIONS WERE TAKEN PRIOR TO THE PRELIMINARY HEARING AND
APPOINTMENT OF COUNSEL.  THERE IS NO RECORD OF PHYSICAL COERCION OR OF
THAT LESS PAINFUL DURESS GENERATED BY PROLONGED QUESTIONING.  THERE IS
EVIDENCE THAT PETITIONER WAS TOLD HE COULD REMAIN SILENT AND THAT ANY
STATEMENT HE MIGHT MAKE COULD BE USED AGAINST HIM.  HE CHOSE TO SPEAK,
AND HE MADE THAT CHOICE WITHOUT A PROMISE OF REWARD OR IMMUNITY HAVING
BEEN EXTENDED.  HE WAS NEVER DENIED THE RIGHT OF COUNSEL OF HIS CHOICE
AND WAS NEVER WITHOUT COMPETENT COUNSEL FROM THE INCEPTION OF JUDICIAL
PROCEEDINGS.  IF THE DELAY IN THE ARRAIGNMENT OF PETITIONER WAS GREATER
THAN THAT WHICH MIGHT BE TOLERATED IN A FEDERAL CRIMINAL PROCEDING, DUE
PROCESS WAS NOT VIOLATED.  UNDER THE LEADERSHIP OF THIS COURT A RULE
HAS BEEN ADOPTED FOR FEDERAL COURTS, THAT DENIES ADMISSION TO
CONFESSIONS OBTAINED BEFORE PROMPT ARRAIGNMENT NOTWITHSTANDING THEIR
VOLUNTARY CHARACTER.  MCNABB V. UNITED STATES, 318 U.S. 332; UPSHAW V.
UNITED STATES, 335 U.S. 410.  CF. ALLEN V. UNITED STATES, 91 U.S. APP.
D.C. 197, 202 F.2D 329.  THIS EXPERIMENT HAS BEEN MADE IN AN ATTEMPT TO
ABOLISH THE OPPORTUNITIES FOR COERCION WHICH PROLONGED DETENTION
WITHOUT A HEARING IS SAID TO ENHANCE.  BUT THE FEDERAL RULE DOES NOT
ARISE FROM CONSTITUTIONAL SOURCES.  THE COURT HAS REPEATEDLY REFUSED TO
CONVERT THIS RULE OF EVIDENCE FOR FEDERAL COURTS INTO A CONSTITUTIONAL
LIMITATION ON THE STATES.  GALLEGOS V. NEBRASKA, 342 U.S. 55, 63-65. 
MERE DETENTION AND POLICE EXAMINATION IN PRIVATE OF ONE IN OFFICIAL
STATE CUSTODY DO NOT RENDER INVOLUNTARY THE STATEMENTS OR CONFESSIONS
MADE BY THE PERSON SO DETAINED.  PETITIONER'S CONSTITUTIONAL RIGHTS
WERE NOT INFRINGED BY THE REFUSAL OF THE TRIAL COURT TO EXCLUDE HIS
CONFESSIONS AS EVIDENCE. 

SECOND.  WE EXAMINE THE CONSTITUTIONAL ISSUES IN NO. 22, SPELLER V.
ALLEN. 

PETITIONER, A NEGRO, WAS INDICTED AND IN AUGUST, 1949, TRIED IN THE
SUPERIOR COURT OF BERTIE COUNTY, NORTH CAROLINA, UPON A CHARGE OF
RAPE.  HE HAS BEEN CONVICTED AND SENTENCED TO DEATH ON THIS CHARGE
THREE TIMES, THE FIRST TWO CONVICTIONS HAVING BEEN SET ASIDE ON APPEAL
BY THE SUPREME COURT OF NORTH CAROLINA ON THE GROUND OF DISCRIMINATORY
SELECTION OF JURORS.  STATE V. SPELLER, 229 N.C. 67, 47 S.E.2D 537, 230
N.C. 345, 53 S.E.2D 924.  AT THIS, HIS THIRD TRIAL, AUGUST TERM 1949,
PETITIONER MADE A TIMELY MOTION TO SET ASIDE THE ARRAY OF SPECIAL
VENIREMEN CALLED FROM VANCE COUNTY, ALLEGING DISCRIMINATION AGAINST
NEGROES "SOLELY AND WHOLLY ON ACCOUNT OF THEIR RACE AND/OR COLOR" IN
THE SELECTION OF THE VENIREMEN IN CONTRAVENTION OF THE GUARANTEES OF
THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION.  (TRANSCRIPT OF
RECORD, STATE V. SPELLER, AUGUST TERM 1949, BERTIE N.C.  SUPERIOR COURT
AT 12, ITEM 91, CLERK'S RECORD, SUPREME COURT OF THE UNITED STATES.) 
EVIDENCE WAS TAKEN AT LENGTH ON THIS ISSUE, ALTHOUGH SOME EVIDENCE
DEEMED MATERIAL BY PETITIONER WAS EXCLUDED.  IN PARTICULAR, THE TRIAL
JUDGE, ON THE GROUND THAT IT WOULD BE IMMATERIAL, INFRA, P. 480,
REFUSED TO PERMIT PETITIONER TO PRODUCE EVIDENCE AS TO ALL THE SCROLLS
IN THE JURY BOX FOR THE PURPOSE OF SHOWING THE EXISTENCE OF DOTS ON THE
SCROLLS BEARING THE NAMES OF NEGROES.  THE JURY BOX WAS PRODUCED IN
COURT, OPENED, AND COUNSEL FOR DEFENDANT PERMITTED TO EXAMINE THE
SCROLLS.  THE TRIAL JUDGE MADE FINDINGS RELATING TO THE MANNER OF
SELECTING THE VENIREMEN, DETERMINING THAT NO DISCRIMINATION WAS
PRACTICED, AND ON THESE FINDINGS DENIED THE MOTION TO SET ASIDE THE
ARRAY.  PETITIONER WAS THEREAFTER CONVICTED FOR THE THIRD TIME, AND
SENTENCED TO DEATH. 

ON APPEAL PETITIONER ASSERTED THAT HIS CONVICTION VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, ASSIGNING THE DENIAL OF
HIS MOTION TO SET ASIDE THE ARRAY AS ERROR, AND ALSO ASSIGNING AS ERROR
THE TRIAL COURT'S RULING ON HIS REQUEST FOR PERMISSION TO EXAMINE INTO
ALL THE SCROLLS IN THE JURY BOX.  THE SUPREME COURT OF NORTH CAROLINA
HAD BEFORE IT ON THAT APPEAL AS PART OF THE RECORD A MIMEOGRAPHED,
NARRATIVE-STYLE TRANSCRIPT OF THE ENTIRE PROCEEDINGS BELOW; PETITIONER
MAKES NO OBJECTION TO THE ABSENCE OF ANY RELEVANT EVIDENCE ON THAT
APPEAL, EXCEPT THAT RELATING TO ALL THE SCROLLS WHICH HAD BEEN EXCLUDED
BY THE TRIAL COURT.  UPHOLDING THE RULINGS OF THE TRIAL COURT, THE
SUPREME COURT OF NORTH CAROLINA AFFIRMED THE CONVICTION, 231 N.C. 549,
57 S.E.2D 759. 

PETITIONER FILED THIS PETITION FOR A WRIT OF HABEAS CORPUS IN THE
FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA AFTER
WE DENIED CERTIORARI ON DIRECT REVIEW OF THE STATE PROCEEDINGS.  THE
PETITION SUMMARILY RECITED THE PRIOR HISTORY OF THE LITIGATION, AND
RAISED AGAIN THE SAME FEDERAL QUESTION WHICH HAD BEEN PASSED UPON BY
BOTH NORTH CAROLINA COURTS, AND WHICH HAD BEEN OFFERED TO THIS COURT ON
PETITION FOR CERTIORARI, RACIAL DISCRIMINATION.  THE DISTRICT COURT
HEARD ALL ADDITIONAL EVIDENCE THE PETITIONER OFFERED.  THIS WAS IN ITS
DISCRETION.  MOORE V. DEMPSEY, 261 U.S. 86; DARR V. BURFORD, 339 U.S.,
AT 214, CASES WHICH ESTABLISH THE POWER OF FEDERAL DISTRICT COURTS TO
PROTECT THE CONSTITUTIONAL RIGHTS OF STATE PRISONERS AFTER THE
EXHAUSTION OF STATE REMEDIES.  IT BETTER ENABLED THAT COURT TO
DETERMINE WHETHER ANY VIOLATION OF THE FOURTEENTH AMENDMENT OCCURRED. 

PETITIONER'S CHARGE OF DISCRIMINATION AGAINST NEGROES IN THE
SELECTION OF PETIT JURORS IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS
ATTACKS THE OPERATION OF THE SYSTEM USED BY THE NORTH CAROLINA
AUTHORITIES TO SELECT JURIES IN VANCE COUNTY, FROM WHICH COUNTY A
SPECIAL VENIRE WAS OBTAINED TO TRY PETITIONER.  THE CHARGE RESTS ON
PETITIONER'S CONTENTIONS (1) THAT NO NEGRO WITHIN RECENT YEARS HAD
SERVED ON A JURY IN VANCE COUNTY BEFORE THIS CASE, (2) THAT NO NEGRO
HAD BEEN SUMMONED TO SERVE ON A JURY BEFORE THIS CASE, AND (3) THAT THE
JURY BOX IN THIS CASE WAS SO HEAVILY LOADED WITH NAMES OF WHITE PERSONS
THAT THE DRAWING COULD NOT FAIRLY REFLECT A CROSS-SECTION OF THOSE
PERSONS IN THE COMMUNITY QUALIFIED FOR JURY SERVICE.  PETITIONER
OFFERED EVIDENCE TO SUPPORT EACH OF THESE THREE CONTENTIONS. 

THE EVIDENCE ESTABLISHES THE CORRECTNESS OF CONTENTIONS (1) AND (2). 
THEY ARE INAPPLICABLE TO THIS CASE, HOWEVER, UNDER THE CIRCUMSTANCES OF
THE FILLING OF THIS PARTICULAR JURY BOX.  AS IS POINTED OUT IN BROWN V.
ALLEN, SUPRA, AT PAGE 470, NORTH CAROLINA IN 1947 ENLARGED ITS POOL OF
CITIZENS ELIGIBLE FOR JURY SERVICE.  GENERAL STATUTES, NORTH CAROLINA,
SEC.  9-1.  IN VANCE COUNTY, WHERE THE SPECIAL VENIRE FOR SPELLER'S
TRIAL WAS DRAWN, THE NAMES OF SUBSTANTIAL NUMBERS OF NEGROES APPEARED
THEREAFTER IN THE JURY BOX.  145 NEGROES OUT OF A TOTAL OF 2,126 NAMES
WERE IN THIS JURY BOX.  AS THIS VENIRE WAS THE FIRST DRAWING OF JURORS
FROM THE BOX AFTER ITS PURGE IN JULY 1949, FOLLOWING THE NEW STATUTE
AND BRUNSON V. NORTH CAROLINA, 333 U.S. 851, DECIDED HERE MARCH 15,
1948, THE LONG HISTORY OF ALLEGED DISCRIMINATION AGAINST ITS NEGRO
CITIZENS BY VANCE COUNTY JURY COMMISSIONERS IS NOT DECISIVE OF
DISCRIMINATION IN THE PRESENT CASE.  FORMER ERRORS CANNOT INVALIDATE
FUTURE TRIALS.  OUR PROBLEM IS WHETHER THIS VENIRE WAS DRAWN FROM A
JURY BOX INVALIDLY FILLED AS TO SPELLER BECAUSE NAMES WERE SELECTED BY
DISCRIMINATING AGAINST NEGROES "SOLELY ON ACCOUNT OF RACE AND/OR
COLOR."  IT IS THIS PARTICULAR BOX THAT IS DECISIVE, CF. CASSELL V.
TEXAS, 339 U.S. 282, 290 AND 295.  PAST PRACTICE IS EVIDENCE OF PAST
ATTITUDE OF MIND.  THAT ATTITUDE IS SHOWN TO NO LONGER CONTROL THE
ACTION OF OFFICIALS BY THE PRESENT FACT OF COLORED CITIZENS' NAMES IN
THE JURY BOX.    IT IS SUGGESTED THAT THE RECORD SHOWS THAT THE NAMES
OF COLORED PERSONS IN THE JURY BOX WERE MARKED WITH A DOT OR PERIOD ON
THE SCROLL.  THIS COULD BE USED FOR UNLAWFUL DISPOSITION OF SUCH
SCROLLS WHEN DRAWN.  SUCH A SCHEME WOULD BE USELESS IN THE
CIRCUMSTANCES OF THIS CASE.  THE RECORD SHOWS THAT THE DEFENDANT AND
HIS COUNSEL WERE PRESENT WHEN THE VENIRE WAS DRAWN BY A CHILD, AGED 5. 
ALL OF THE NAMES DRAWN WERE GIVEN TO THE SHERIFF AND SUMMONSES WERE
ISSUED.  AS A MATTER OF FACT THE SPECIAL VENIRE CONTAINED THE NAMES OF
SEVEN NEGROES.  FOUR APPEARED.  NONE SAT AS JURORS.  THEREFORE THE
ASSERTION AS TO THE DOTS, EVEN IF TRUE, MEANS NO MORE THAN THAT SOME
UNKNOWN PERSON DESIRED TO INTERFERE WITH THE FAIR DRAWING OF JURIES IN
VANCE COUNTY.  THE TRIAL COURT FOUND AGAINST PETITIONER ON THIS
QUESTION.  THE DISTRICT COURT POINTED OUT ITS IMMATERIALITY.  99 F.
SUPP., AT 97. 

THIS BOX WAS FILLED BY NAMES SELECTED BY THE CLERK OF THE JURY
COMMISSIONERS AND CORRECTED BY THE COMMISSIONERS.  THE NAMES PUT IN
WERE SUBSTANTIALLY THOSE SELECTED BY THE CLERK, WHO CHOSE THEM FROM
THOSE ON THE TAX LISTS WHO HAD "THE MOST PROPERTY."  THE CLERK
TESTIFIED NO RACIAL DISCRIMINATION ENTERED INTO HIS SELECTION.  SINCE
THE EFFECT OF THIS POSSIBLE OBJECTION TO THE SELECTION OF JURORS ON AN
ECONOMIC BASIS WAS NOT RAISED OR DEVELOPED AT THE TRIAL, ON APPEAL TO
THE STATE SUPREME COURT, ON THE FORMER CERTIORARI TO THIS COURT, OR IN
THE PETITION OR BRIEF ON THE PRESENT CERTIORARI TO THIS COURT, IT IS
NOT OPEN TO CONSIDERATION HERE.  (FN24)  SUCH AN IMPORTANT NATIONAL
ASSET AS STATE AUTONOMY IN LOCAL LAW ENFORCEMENT MUST NOT BE ERODED
THROUGH INDEFINITE CHARGES OF UNCONSTITUTIONAL ACTIONS. 

AS WE HAVE STATED ABOVE IN DISCUSSING THE BROWN CASE, PAGE 473, ET
SEQ., SUPRA, OUR CONCLUSION THAT SELECTION OF PROSPECTIVE JURORS MAY BE
MADE FROM SUCH TAX LISTS AS THOSE REQUIRED UNDER NORTH CAROLINA
STATUTES WITHOUT VIOLATION OF THE FEDERAL CONSTITUTION, THIS POINT
NEEDS NO FURTHER ELABORATION.  THE FACT THAT CAUSES FURTHER
CONSIDERATION IN THIS CASE OF THE SELECTION OF PROSPECTIVE JURORS IS
THAT THE TAX LISTS SHOW 8,233 INDIVIDUAL TAXPAYERS IN VANCE COUNTY OF
WHOM 3,136 OR 38% ARE NEGROES.  IN THE JURY BOX INVOLVED, SELECTED FROM
THAT LIST, THERE WERE 2,126 NAMES.  OF THAT NUMBER 145 WERE NEGROES,
7%.  THIS DISPARITY BETWEEN THE RACES WOULD NOT BE ACCEPTED BY THIS
COURT SOLELY ON THE EVIDENCE OF THE CLERK OF THE COMMISSIONERS THAT HE
SELECTED NAMES OF CITIZENS OF "GOOD MORAL CHARACTER AND QUALIFIED TO
SERVE AS JURORS, AND WHO HAD PAID THEIR TAXES."  (FN25)  IT WOULD NOT
BE ASSUMED THAT IN VANCE COUNTY THERE IS NOT A MUCH LARGER PERCENTAGE
OF NEGROES WITH QUALIFICATIONS OF JURYMEN.  (FN26)  THE ACTION OF THE
COMMISSIONERS' CLERK, HOWEVER, IN SELECTING THOSE WITH "THE MOST
PROPERTY," AN ECONOMIC BASIS NOT ATTACKED HERE, MIGHT WELL ACCOUNT FOR
THE FEW NEGROES APPEARING IN THE BOX.  EVIDENCE OF DISCRIMINATION BASED
SOLELY ON RACE IN THE SELECTION ACTUALLY MADE IS LACKING. 

THE TRIAL AND DISTRICT COURTS, AFTER HEARING WITNESSES, FOUND NO
RACIAL DISCRIMINATION IN THE SELECTION OF THE PROSPECTIVE JURORS.  THE
CONVICTION WAS UPHELD AS NONDISCRIMINATORY BY THE STATE SUPREME COURT,
WHICH HAD ONCE ACTED TO REVERSE A CONVICTION OF THIS DEFENDANT BY A
JURY DEEMED TAINTED WITH RACIAL DISCRIMINATION, STATE V. SPELLER, 229
N.C. 67, 47 S.E.2D 537, AND AGAIN TO REVERSE A CONVICTION WHEN ADEQUATE
TIME FOR INVESTIGATION OF DISCRIMINATION HAD NOT BEEN GIVEN.  STATE V.
SPELLER, 230 N.C. 345, 53 S.E.2D 294.  IT WOULD REQUIRE A CONVICTION,
BY THIS COURT, OF VIOLATION OF EQUAL PROTECTION THROUGH RACIAL
DISCRIMINATION TO SET ASIDE THIS TRIAL.  OUR DELICATE AND SERIOUS
RESPONSIBILITY OF COMPELLING STATE CONFORMITY TO THE CONSTITUTION BY
OVERTURNING STATE CRIMINAL CONVICTIONS, SHOULD NOT BE EXERCISED WITHOUT
CLEAR EVIDENCE OF VIOLATION. 

DISREGARDING, AS WE THINK WE SHOULD, THE CLERK'S UNCHALLENGED
SELECTIONS BASED ON TAXABLE PROPERTY, THERE IS NO EVIDENCE OF RACIAL
DISCRIMINATION.  NEGROES' NAMES NOW APPEAR IN THE JURY BOX.   IF THE
REQUIREMENT OF COMPARATIVE WEALTH IS ELIMINATED, AND THE STATUTORY
STANDARDS EMPLOYED, THE NUMBER WOULD INCREASE TO THE EQUALITY JUSTIFIED
BY THEIR MORAL AND EDUCATIONAL QUALIFICATION FOR JURY SERVICE AS
COMPARED WITH THE WHITE RACE.  WE DO NOT THINK THE SMALL NUMBER, BY
COMPARISON, OF NEGRO NAMES IN THIS ONE JURY BOX, IS, IN ITSELF, ENOUGH
TO ESTABLISH RACIAL DISCRIMINATION. 

THIRD.  WE HAVE THE PROBLEMS PRESENTED BY NO. 20, DANIELS V. ALLEN. 
THE TWO PETITIONERS, NEGROES, WERE INDICTED AND CONVICTED IN THE NORTH
CAROLINA COURTS ON A CHARGE OF MURDER.  THEIR TRIAL IN THE SUPERIOR
COURT OF PITT COUNTY RESULTED IN A VERDICT OF GUILTY, AND EACH
PETITIONER WAS THEREAFTER SENTENCED TO DEATH.  THERE IS NO ISSUE OVER
GUILT UNDER THE EVIDENCE INTRODUCED.  IN ADDITION TO THE OBJECTIONS
STATED ABOVE AT P. 453 - DISCRIMINATION IN JURY LISTS, COERCED
CONFESSIONS AND REFUSAL TO HEAR ON THE MERITS - THERE IS ALSO OBJECTION
HERE TO THE PROCEDURE FOR DETERMINATION OF THE VOLUNTARINESS OF THE
CONFESSIONS.  AS THE FAILURE TO SERVE THE STATEMENT OF THE CASE ON
APPEAL SEEMS TO US DECISIVE, WO DO NOT DISCUSS IN DETAIL THE OTHER
CONSTITUTIONAL ISSUES TENDERED AND ONLY POINT OUT THAT THEY WERE
RESOLVED AGAINST THE PETITIONERS BY THE SENTENCING STATE COURT AND THE
FEDERAL DISTRICT COURT AFTER FULL HEARING OF THE EVIDENCE OFFERED.  IT
IS ALSO TO BE NOTED THAT THE SUPREME COURT OF NORTH CAROLINA REFUSED
CERTIORARI TO REVIEW THE ALLEGED INVASIONS OF CONSTITUTIONAL RIGHTS BY
THE SENTENCING COURT AND TWO EFFORTS OF PETITIONERS TO SECURE AN ORDER
PERMITTING THEM TO APPLY FOR CORAM NOBIS.  (FN27)  THE WRIT OF CORAM
NOBIS IS AVAILABLE IN NORTH CAROLINA TO TEST CONSTITUTIONAL RIGHTS
EXTRANEOUS OF THE RECORD.  IN RE TAYLOR, 230 N.C. 566, 53 S.E.2D 857. 
IN THE FIRST CORAM NOBIS CASE THE COURT SAID, SPEAKING OF ITS REFUSAL
OF CERTIORARI: 

"COUNSEL FOR PETITIONERS WERE ADVISED, HOWEVER, THAT PETITION MIGHT
BE FILED HERE FOR PERMISSION TO APPLY TO THE SUPERIOR COURT OF PITT
COUNTY, WHERE THE CAUSE WAS TRIED, FOR A WRIT OF ERROR CORAM NOBIS,
THROUGH WHICH, IF ALLOWED THERE, THEY MIGHT BE HEARD ON THE MAIN
FEATURES ON WHICH THEY ASKED FOR RELIEF, WHICH INCLUDED MATTERS DEHORS
THE RECORD, AND THAT APPEAL WOULD LIE TO THE SUPREME COURT IN THE EVENT
OF ITS UNFAVORABLE ACTION.  S. V. DANIELS, SUPRA; IN RE TAYLOR (230
N.C.), SUPRA; IN RE TAYLOR (229 N.C.), SUPRA. 

"THE DEFENDANTS NOW FILE A PETITION FOR PERMISSION TO APPLY TO THE
SUPERIOR COURT FOR SUCH A WRIT.   THEIR PETITION DOES NOT MAKE A PRIMA
FACIE SHOWING OF SUBSTANCE WHICH IS NECESSARY TO BRING THEMSELVES
WITHIN THE PURVIEW OF THE WRIT."  (FN28)  231 N.C. 341, 56 S.E.2D 646,
647. 

AFTER THE REFUSAL OF THE FIRST CORAM NOBIS PETITION, THE SUPREME
COURT OF NORTH CAROLINA DISMISSED PETITIONERS' ATTEMPTED APPEAL ON THE
RECORD PROPER ON THE GROUND THAT NO CASE ON APPEAL HAD BEEN FILED.  231
N.C. 509, 57 S.E.2D 653; RULE 17, 4 N.C. GEN. STAT., APP.; ID., VOL. 1,
SEC. 1-282.  SUCH ACTION ACCORDS WITH WELL-SETTLED PRACTICE IN THAT
STATE.  "RULES REQUIRING SERVICE TO BE MADE OF CASE ON APPEAL WITHIN
THE ALLOTTED TIME ARE MANDATORY."  231 N.C. 17, 24, 56 S.E.2D 2, 7. 
THEY ARE APPLIED ALIKE TO ALL APPELLANTS.  (FN29)  THE FIRST
APPLICATION FOR CERTIORARI TO THIS COURT RAISED FEDERAL CONSTITUTIONAL
OBJECTIONS TO THE JUDGMENTS OF THE SUPREME COURT OF NORTH CAROLINA ON
BOTH DIRECT AND COLLATERAL ATTACK BY CERTIORARI AND CORAM NOBIS ON THE
JUDGMENTS OF THE TRIAL COURT.   339 U.S. 954. 

THE FAILURE TO PERFECT THE APPEAL CAME IN THIS WAY.  UPON THE COMING
IN OF THE VERDICT ON JUNE 6, 1949, THE PETITIONERS SEVERAL TIMES MOVED
FOR A NEW TRIAL, IN EACH MOTION REITERATING ONE OR THE OTHER OF THE
AFOREMENTIONED FEDERAL QUESTIONS.  THESE MOTIONS WERE DENIED, AND THE
TRIAL COURT PRONOUNCED ITS SENTENCE.  PETITIONERS EXCEPTED TO THE
JUDGMENTS AND NOTED APPEALS THEREFROM TO THE STATE SUPREME COURT.  IN
RESPONSE TO PETITIONERS' NOTICE, THE TRIAL JUDGE GRANTED PETITIONERS 60
DAYS IN WHICH TO MAKE AND SERVE A STATEMENT OF THE CASE ON APPEAL. 
WHEN COUNSEL FAILED TO SERVE THIS STATEMENT UNTIL 61 DAYS HAD EXPIRED,
THE TRIAL JUDGE STRUCK THE APPEAL AS OUT OF TIME.  THIS ACTION
PRECLUDED AN APPEAL AS OF RIGHT TO THE STATE SUPREME COURT. 

THIS SITUATION CONFRONTS US.  NORTH CAROLINA FURNISHED A CRIMINAL
COURT FOR THE TRIAL OF THOSE CHARGED WITH CRIME.  PETITIONERS AT ALL
TIMES HAD COUNSEL, CHOSEN BY THEMSELVES AND RECOGNIZED BY NORTH
CAROLINA AS COMPETENT TO CONDUCT THE DEFENSE.  IN THAT COURT ALL
PETITIONERS' OBJECTIONS AND PROPOSALS WHETHER OF JURY DISCRIMINATION,
ADMISSION OF CONFESSIONS, INSTRUCTIONS OR OTHERWISE WERE HEARD AND
DECIDED AGAINST PETITIONERS.  THE STATE FURNISHED AN ADEQUATE AND
EASILY-COMPLIED-WITH METHOD OF APPEAL.  THIS INCLUDED A MEANS TO SERVE
THE STATEMENT OF THE CASE ON APPEAL IN THE ABSENCE OF THE PROSECUTOR
FROM HIS OFFICE.  STATE V. DANIELS, 231 N.C. 17, 24, 56 S.E.2D 2, 7. 
YET PETITIONERS' APPEAL WAS NOT TAKEN AND THE STATE OF NORTH CAROLINA,
ALTHOUGH THE FULL TRIAL RECORD AND STATEMENT ON APPEAL WERE BEFORE IT,
REFUSED TO CONSIDER THE APPEAL ON ITS MERITS.  (FN30) 

THE WRIT OF HABEAS CORPUS IN FEDERAL COURTS IS NOT AUTHORIZED FOR
STATE PRISONERS AT THE DISCRETION OF THE FEDERAL COURT.  IT IS ONLY
AUTHORIZED WHEN A STATE PRISONER IS IN CUSTODY IN VIOLATION OF THE
CONSTITUTION OF THE UNITED STATES.  28 U.S.C. SEC. 2241.  THAT FACT IS
NOT TO BE TESTED BY THE USE OF HABEAS CORPUS IN LIEU OF AN APPEAL. 
(FN31)  TO ALLOW HABEAS CORPUS IN SUCH CIRCUMSTANCES WOULD SUBVERT THE
ENTIRE SYSTEM OF STATE CRIMINAL JUSTICE AND DESTROY STATE ENERGY IN THE
DETECTION AND PUNISHMENT OF CRIME. 

OF COURSE, FEDERAL HABEAS CORPUS IS ALLOWED WHERE TIME HAS EXPIRED
WITHOUT APPEAL WHEN THE PRISONER IS DETAINED WITHOUT OPPORTUNITY TO
APPEAL BECAUSE OF LACK OF COUNSEL, INCAPACITY, OR SOME INTERFERENCE BY
OFFICIALS.  (FN32)  ALSO, THIS COURT WILL REVIEW STATE HABEAS CORPUS
PROCEEDINGS EVEN THOUGH NO APPEAL WAS TAKEN, IF THE STATE TREATED
HABEAS CORPUS AS PERMISSIBLE.  (FN33)  FEDERAL HABEAS CORPUS IS
AVAILABLE FOLLOWING OUR REFUSAL TO REVIEW SUCH STATE HABEAS CORPUS
PROCEEDINGS.  (FN34)  FAILURE TO APPEAL IS MUCH LIKE A FAILURE TO RAISE
A KNOWN AND EXISTING QUESTION OF UNCONSTITUTIONAL PROCEEDING OR ACTION
PRIOR TO CONVICTION OR COMMITMENT.  SUCH FAILURE, OF COURSE, BARS
SUBSEQUENT OBJECTION TO CONVICTION ON THOSE GROUNDS.  (FN35) 

NORTH CAROLINA HAS APPLIED ITS LAW IN REFUSING THIS OUT-OF-TIME
REVIEW.  (FN36)  THIS COURT APPLIES ITS JURISDICTIONAL STATUTE IN THE
SAME MANNER.  PRESTON V. TEXAS, 343 U.S. 917, 933; CF. PAONESSA V. NEW
YORK, 344 U.S. 860, CERTIORARI DENIED BECAUSE "APPLICATION THEREFOR WAS
NOT MADE WITHIN THE TIME PROVIDED BY LAW."  WE CANNOT SAY THAT NORTH
CAROLINA'S ACTION IN REFUSING REVIEW AFTER FAILURE TO PERFECT THE CASE
ON APPEAL VIOLATES THE FEDERAL CONSTITUTION.  A PERIOD OF LIMITATION
ACCORDS WITH OUR CONCEPTION OF PROPER PROCEDURE. 

FINALLY, FEDERAL COURTS MAY NOT GRANT HABEAS CORPUS FOR THOSE
CONVICTED BY THE STATE EXCEPT PURSUANT TO SEC. 2254.  SEE NOTE 17,
SUPRA.  SEE ALSO NOTE 2, SUPRA.  WE HAVE INTERPRETED SEC. 2254 AS NOT
REQUIRING REPETITIOUS APPLICATIONS TO STATE COURTS FOR COLLATERAL
RELIEF, P. 447, SUPRA, BUT CLEARLY THE STATE'S PROCEDURE FOR RELIEF
MUST BE EMPLOYED IN ORDER TO AVOID THE USE OF FEDERAL HABEAS CORPUS AS
A MATTER OF PROCEDURAL ROUTINE TO REVIEW STATE CRIMINAL RULINGS.  A
FAILURE TO USE A STATE'S AVAILABLE REMEDY, IN THE ABSENCE OF SOME
INTERFERENCE OR INCAPACITY, SUCH AS IS REFERRED TO JUST ABOVE AT NOTES
32 AND 33, BARS FEDERAL HABEAS CORPUS.  THE STATUTE REQUIRES THAT THE
APPLICANT EXHAUST AVAILABLE STATE REMEDIES.  TO SHOW THAT THE TIME HAS
PASSED FOR APPEAL IS NOT ENOUGH TO EMPOWER THE FEDERAL DISTRICT COURT
TO ISSUE THE WRIT.  THE JUDGMENT MUST BE AFFIRMED. 

WE HAVE SPOKEN IN THIS OPINION OF THE CHARGE OF PRACTICE IN NORTH
CAROLINA IN THE SELECTION OF JURORS.  OUR CONCLUSIONS HAVE BEEN REACHED
WITHOUT REGARD TO EARLIER INCIDENTS NOT CONNECTED WITH THESE JURIES OR
TRIALS THAT SUGGEST PAST DISCRIMINATIONS.  SINCE THE STATES ARE THE
REAL GUARDIANS OF PEACE AND ORDER WITHIN THEIR BOUNDARIES, IT IS HOPED
THAT OUR CONSIDERATION OF THESE RECORDS WILL TEND TO CLARIFY THE
REQUIREMENTS OF THE FEDERAL CONSTITUTION IN THE SELECTION OF JURIES. 
OUR CONSTITUTION REQUIRES THAT JURORS BE SELECTED WITHOUT INCLUSION OR
EXCLUSION BECAUSE OF RACE.  THERE MUST BE NEITHER LIMITATION NOR
REPRESENTATION FOR COLOR.  BY THAT PRACTICE, HARMONY HAS AN OPPORTUNITY
TO MAINTAIN ESSENTIAL DISCIPLINE, WITHOUT THAT OBJECTIONABLE DOMINATION
WHICH IS SO INCONSISTENT WITH OUR CONSTITUTIONAL DEMOCRACY.  THE
JUDGMENTS ARE AFFIRMED. 

FN1  BROWN V. NORTH CAROLINA, 341 U.S. 943; SPELLER V. NORTH
CAROLINA, 340 U.S. 835; DANIELS V. NORTH CAROLINA, 339 U.S. 954. 

FN2  WE REACH THIS CONCLUSION AFTER CONSIDERATION OF THE SECOND
PARAGRAPH OF 28 U.S.C.  SEC. 2254:

"AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

FN3  OUTSIDE THE CASES, IT HAS BEEN STRONGLY URGED THAT THE PURPOSE
OF SUBPARAGRAPH 2 WAS TO ELIMINATE THE RIGHT OF A FEDERAL DISTRICT
COURT TO ENTERTAIN AN APPLICATION SO LONG AS ANY STATE REMEDY REMAINED
AVAILABLE.  IN AN ARTICLE BY CHIEF JUDGE PARKER, CHAIRMAN OF THE
JUDICIAL CONFERENCE COMMITTEE WHICH DRAFTED THE NEW HABEAS CORPUS ACT,
LIMITING THE ABUSE OF HABEAS CORPUS, 8 F.R.D. 171, 176 (1949), THIS
CONSTRUCTION OF SEC. 2254 IS PRESENTED:    "THE EFFECT OF THIS LAST
PROVISION IS TO ELIMINATE, FOR ALL PRACTICAL PURPOSES, THE RIGHT TO
APPLY TO THE LOWER COURTS FOR HABEAS CORPUS IN ALL STATES IN WHICH
SUCCESSIVE APPLICATIONS MAY BE MADE FOR HABEAS CORPUS TO THE STATE
COURTS; FOR, IN ALL SUCH STATES, THE APPLICANT HAS THE RIGHT,
NOTWITHSTANDING THE DENIAL OF PRIOR APPLICATIONS, TO APPLY AGAIN TO THE
STATE COURTS FOR HABEAS CORPUS AND TO HAVE ACTION UPON SUCH LATER
APPLICATION REVIEWED BY THE SUPREME COURT OF THE UNITED STATES ON
APPLICATION FOR CERTIORARI."    WE DO NOT SO CONSTRUE SEC. 2254.  WE DO
NOT BELIEVE CONGRESS INTENDED TO REQUIRE REPETITIOUS APPLICATIONS TO
STATE COURTS.  SEC. 2254 ORIGINALLY READ AS FOLLOWS: 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PERSON IN
CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT OR AUTHORITY OF A
STATE OFFICER SHALL NOT BE GRANTED UNLESS IT APPEARS THAT THE APPLICANT
HAS EXHAUSTED THE REMEDIES AVAILABLE IN THE COURTS OF THE STATE, OR
THAT THERE IS NO ADEQUATE REMEDY AVAILABLE IN SUCH COURTS OR THAT SUCH
COURTS HAVE DENIED HIM A FAIR ADJUDICATION OF THE LEGALITY OF HIS
DETENTION UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES."  SEC.
2254 OF H.R. 3214, 80TH CONG., 2D SESS. 

FN4  THE COURTS BELOW HAVE DIVIDED SINCE THE DARR CASE ON THE EFFECT
TO BE ACCORDED A DENIAL OF CERTIORARI BY THIS COURT. 

NO SUBSTANTIVE EFFECT                   DISCRETIONARY EFFECT 

GOODMAN V. LAINSON, 182 F.2D                         ANDERSON V.
EIDSON, 191 F.2D

814.                                                989. 

MCGARTY V. O'BRIEN, 188 F.2D                         HOLLAND V.
EIDSON, 90 F. SUPP.

151.                   314. 

SOULIA V. O'BRIEN, 188 F.2D 233.                  PENNSYLVANIA EX
REL. GIBBS.  V. 

ODELL V. HUDSPETH, 189 F.2D 300.                      ASHE, 93 F.
SUPP. 542. 

EKBERG V. MCGEE, 191 F.2D 625                        SOULIA V.
O'BRIEN, 94 F. SUPP. 

(ALSO REPORTED AT 194 F.2D                        764. 

178).                       MCGARTY V. O'BRIEN, 96 F. SUPP. 

SAMPSELL V. CALIFORNIA, 191 F.2D                      704. 

721.                                                GOODWIN V.
SMYTH, 181 F.2D 498. 

MELANSON V. O'BRIEN, 191 F.2D            ADKINS V. SMYTH, 188 F.2D
452. 

963.                                     BYARS V. SWENSON, 192 F.2D
739. 

BACOM V. SULLIVAN, 194 F.2D 166.                     FRAZIER V.
ELLIS, 196 F.2D 231. 

ALMEIDA V. BALDI, 195 F.2D 815.                      LYLE V. EIDSON,
197 F.2D 327. 

HAWK V. HANN, 103 F. SUPP. 138.                      SKINNER V.
ROBINSON, 105 F. SUPP. 

EX PARTE WELLS, 99 F. SUPP. 320.                 153. 

FOUQUETTE V. BERNARD, 198 F.2D 

96. 

MASTER V. BALDI, 198 F.2D 113. 

DAVERSE V. HOHN, 198 F.2D 934. 

FN5  THE PARTICIPATION OF A DISTRICT COURT THROUGH HABEAS CORPUS
PROCEEDINGS IN DETERMINING WHETHER STATE PRISONERS HAVE BEEN GRANTED A
FAIR TRIAL IS A SENSITIVE AREA IN OUR FEDERATED SYSTEM.  SPELLER V.
CRAWFORD, 99 F. SUPP. 92, 96; SMITH V. BALDI, 192 F.2D 540, 543. 

IN SEPTEMBER 1952, AT ITS FOURTH ANNUAL MEETING, THE CONFERENCE OF
CHIEF JUSTICES ADOPTED A RESOLUTION QUESTIONING THE HABEAS CORPUS
PRINCIPLES "ENUNCIATED IN CERTAIN RECENT FEDERAL DECISIONS."  THE
RESOLUTION EXPRESSED THE CONSENSUS OF THE CHIEF JUSTICES THAT "A FINAL
JUDGMENT OF A STATE'S HIGHEST COURT SHOULD BE SUBJECT TO REVIEW OR
REVERSAL ONLY BY THE SUPREME COURT OF THE UNITED STATES."  CONCERN WAS
NOTED THAT THE HEARING OF THE SUCCESSIVE PETITIONS BY FEDERAL DISTRICT
COURTS WOULD TEND TOWARD A DILUTION OF THE SENSE OF JUDICIAL
RESPONSIBILITY, A DELAY IN THE ENFORCEMENT OF CRIMINAL JUSTICE, AND AN
IMPAIRMENT OF CONFIDENCE IN STATE JUDICIAL INSTITUTIONS.  25 STATE
GOVERNMENT, PP. 249-250. 

FN6  AS THE BURDEN OF OVERTURNING THE CONVICTION RESTS ON THE
APPLICANT, HE SHOULD ALLEGE SPECIFICALLY, IN CASES WHERE MATERIAL, THE
UNCONTRADICTED EVIDENTIARY FACTS APPEARING IN THE RECORD UPON WHICH IS
BASED HIS ALLEGATION OF DENIAL OF CONSTITUTIONAL RIGHTS. 

FN7  THE APPLICABLE RULE 61 OF THE FED. RULES CIV. PROC. IS AS
FOLLOWS: 

"NO ERROR IN EITHER THE ADMISSION OR THE EXCLUSION OF EVIDENCE AND NO
ERROR OR DEFECT IN ANY RULING OR ORDER OR IN ANYTHING DONE OR OMITTED
BY THE COURT OR BY ANY OF THE PARTIES IS GROUND FOR GRANTING A NEW
TRIAL OR FOR SETTING ASIDE A VERDICT OR FOR VACATING, MODIFYING, OR
OTHERWISE DISTURBING A JUDGMENT OR ORDER, UNLESS REFUSAL TO TAKE SUCH
ACTION APPEARS TO THE COURT INCONSISTENT WITH SUBSTANTIAL JUSTICE.  THE
COURT AT EVERY STAGE OF THE PROCEEDING MUST DISREGARD ANY ERROR OR
DEFECT IN THE PROCEEDING WHICH DOES NOT AFFECT THE SUBSTANTIAL RIGHTS
OF THE PARTIES." 

FN8  HELVERING V. GOWRAN, 302 U.S. 238, 245.  SEE RILEY CO. V.
COMMISSIONER, 311 U.S. 55, 59. 

FN9  RULE 52, FED. RULES CRIM. PROC.; BERGER V. UNITED STATES, 295
U.S. 78, 81-84.  SEE KOTTEAKOS V. UNITED STATES, 328 U.S. 750, 763;
BIHN V. UNITED STATES, 328 U.S. 633. 

FN10  SEE NOTE 15, INFRA. 

FN11  28 U.S.C. SEC. 2241(A). 

FN12  28 U.S.C. SEC. 2243: 

"A COURT, JUSTICE OR JUDGE ENTERTAINING AN APPLICATION FOR A WRIT OF
HABEAS CORPUS SHALL FORTHWITH AWARD THE WRIT OR ISSUE AN ORDER
DIRECTING THE RESPONDENT TO SHOW CAUSE WHY THE WRIT SHOULD NOT BE
GRANTED, UNLESS IT APPEARS FROM THE APPLICATION THAT THE APPLICANT OR
PERSON DETAINED IS NOT ENTITLED THERETO  ...  . 

     *         *         *         *         * 

"UNLESS THE APPLICATION FOR THE WRIT AND THE RETURN PRESENT ONLY
ISSUES OF LAW THE PERSON TO WHOM THE WRIT IS DIRECTED SHALL BE REQUIRED
TO PRODUCE AT THE HEARING THE BODY OF THE PERSON DETAINED. 

     *         *         *         *         * 

"THE COURT SHALL SUMMARILY HEAR AND DETERMINE THE FACTS, AND DISPOSE
OF THE MATTER AS LAW AND JUSTICE REQUIRE." 

FN13  28 U.S.C. SEC. 2242.  DARR V. BURFORD, SUPRA, P. 203.  SEE SEC.
2243, SUPRA. 

FN14  SEE DENHOLM & MCKAY CO. V. COMMISSIONER, 132 F.2D 243, 247, AND
CASES CITED. 

FN15  28 U.S.C. SEC. 2244: 

"NO CIRCUIT OR DISTRICT JUDGE SHALL BE REQUIRED TO ENTERTAIN AN
APPLICATION FOR A WRIT OF HABEAS CORPUS TO INQUIRE INTO THE DETENTION
OF A PERSON PURSUANT TO A JUDGMENT OF A COURT OF THE UNITED STATES, OR
OF ANY STATE, IF IT APPEARS THAT THE LEGALITY OF SUCH DETENTION HAS
BEEN DETERMINED BY A JUDGE OR COURT OF THE UNITED STATES ON A PRIOR
APPLICATION FOR A WRIT OF HABEAS CORPUS AND THE PETITION PRESENTS NO
NEW GROUND NOT THERETOFORE PRESENTED AND DETERMINED, AND THE JUDGE OR
COURT IS SATISFIED THAT THE ENDS OF JUSTICE WILL NOT BE SERVED BY SUCH
INQUIRY."  SEE S. REP. NO. 1559, 80TH CONG., 2D SESS., AMENDMENT NO.
45. 

FN16  SEE H.R. 4232, 79TH CONG., 1ST SESS.; H.R. 3214, 80TH CONG.,
1ST SESS., H.R. 3214, 80TH CONG., 2D SESS.; REPORT OF THE JUDICIAL
CONFERENCE OF SENIOR CIRCUIT JUDGES, 1947, PP. 17-20. 

FN17  28 U.S.C. SEC. 2254: 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PERSON IN
CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT BE GRANTED
UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER AN
ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER. 

"AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

FN18  THE REASON FOR THE CHANGE IN PROCEDURE WAS STATED: 

"BUT IT DOES NOT FOLLOW THAT A REFUSAL TO DISCHARGE ON ONE
APPLICATION IS WITHOUT BEARING OR WEIGHT WHEN A LATER APPLICATION IS
BEING CONSIDERED.  IN EARLY TIMES WHEN REFUSAL TO DISCHARGE WAS NOT
OPEN TO APPELLATE REVIEW, COURTS AND JUDGES WERE ACCUSTOMED TO EXERCISE
AN INDEPENDENT JUDGMENT ON EACH SUCCESSIVE APPLICATION, REGARDLESS OF
THE NUMBER.  BUT WHEN A RIGHT TO AN APPELLATE REVIEW WAS GIVEN THE
REASON FOR THAT PRACTICE CEASED AND THE PRACTICE CAME TO BE MATERIALLY
CHANGED, - JUST AS WHEN A RIGHT TO A COMPREHENSIVE REVIEW IN CRIMINAL
CASES WAS GIVEN THE SCOPE OF INQUIRY DEEMED ADMISSIBLE ON HABEAS CORPUS
CAME TO BE RELATIVELY NARROWED."  ID., AT 230-231. 

FN19  WHEN AN APPLICATION FOR HABEAS CORPUS BY A STATE PRISONER IS
FILED IN A FEDERAL DISTRICT COURT AFTER THE EXHAUSTION OF STATE
REMEDIES, INCLUDING A CERTIORARI TO THIS COURT, IT RESTS ON A RECORD
THAT WAS MADE IN THE APPLICANT'S EFFORT TO SECURE RELIEF THROUGH THE
STATE FROM IMPRISONMENT, ALLEGEDLY IN VIOLATION OF FEDERAL
CONSTITUTIONAL RIGHTS.  THE DISTRICT COURT, A COURT CONVENIENT TO THE
PLACE OF LITIGATION, 28 U.S.C. SEC. 2241(B), AFTER DETERMINING GROUNDS
FOR RELIEF ARE STATED IN THE PETITION - "MAY REQUIRE A SHOWING OF THE
RECORD AND ACTION ON PRIOR APPLICATIONS."  DARR V. BURFORD, SUPRA, AT
215; SALINGER V. LOISEL, 265 U.S. 224, 232; CF. EX PARTE ELMER DAVIS,
318 U.S. 412.  ORIGINAL RECORDS IN STATE COURTS ARE RETURNED BY THIS
COURT.  (E.G., SEE IN DANIELS V. NORTH CAROLINA, 339 U.S. 954, THE
ORDER OF THE CHIEF JUSTICE OF THE UNITED STATES, DATED MAY 12, 1950, AS
THE SAME REMAINS UPON THE FILES OF THIS COURT, DIRECTING, ON THE
APPLICATION OF PETITIONER'S COUNSEL, THE RETURN OF THE ORIGINAL RECORD
FROM THE FILES OF THIS COURT TO THE SUPREME COURT OF NORTH CAROLINA.) 
COPIES OF PETITIONS FOR CERTIORARI ARE NORMALLY AVAILABLE TO
PETITIONERS.  SEE 28 U.S.C. SEC. 2250.  OTHER SECTIONS STRENGTHEN THE
ABILITY OF THE COURT HEARING THE APPLICATION FULLY TO ADVISE ITSELF
CONCERNING PRIOR HEARINGS OF THE SAME ISSUES FOR THE APPLICANT.  28
U.S.C. SEC. 2245 ALLOWS A CERTIFICATE AS TO CERTAIN FACTS; SEC. 2246
PROVIDES FOR DEPOSITIONS AND AFFIDAVITS.  SECTION 2247 MAKES LIBERAL
PROVISION FOR THE USE OF RECORDS OF FORMER PROCEEDINGS IN EVIDENCE. 
SEE ALSO SECS. 2248-2254, INCLUSIVE.  OF COURSE, THE OTHER USUAL
METHODS OF COMPLETING THE RECORD IN CIVIL CASES, SUCH AS SUBPOENA DUCES
TECUM AND DISCOVERY, ARE GENERALLY AVAILABLE TO THE APPLICANT AND
RESPONDENT.  IF USEFUL RECORDS OF PRIOR LITIGATION ARE DIFFICULT TO
SECURE OR UNOBTAINABLE, THE DISTRICT COURT MAY FIND IT NECESSARY OR
DESIRABLE TO HOLD LIMITED HEARINGS TO SUPPLY THEM WHERE THE ALLEGATIONS
OF THE APPLICATION FOR HABEAS CORPUS STATE ADEQUATE GROUNDS FOR
RELIEF. 

FN20  RULE 19 OF THE RULES OF THE SUPREME COURT OF NORTH CAROLINA
PERMITS AN APPELLANT TO BRING UP ON APPEAL AS MUCH OF THE RECORD AS IS
NECESSARY "TO AN UNDERSTANDING OF THE EXCEPTIONS RELIED ON." 
PETITIONER DOES NOT CONTEND THAT THE RECORD BEFORE THE SUPREME COURT OF
NORTH CAROLINA WAS INADEQUATE FULLY TO SUPPORT AN ADJUDICATION ON HIS
FEDERAL QUESTIONS. 

FN21  SEE CHAPTER 206, 1937 PUBLIC-LOCAL LAWS (AS AMENDED BY CHAPTER
264, 1947 N.C.  SESSION LAWS, AND AS AMENDED BY CHAPTER 577, 1949 N.C.
SESSION LAWS).  AND GEN. STATS.  OF N.C., 1943, C. 9, ARTS. 1-4, AS
AMENDED. 

FN22  IN ADDITION TO NORTH CAROLINA, THE FOLLOWING STATES ARE AMONG
THOSE WHICH ALSO BASE THE COMPOSITION OF JURY LISTS ON TAX LISTS: 

COLO. STAT. ANN., 1952 REPLACEMENT, C. 95, SEC. 10 (MAY USE TAX
LIST): 

GA. CODE ANN., 1951, SEC. 59.106 (JURY COMMISSIONERS "SHALL SELECT
FROM THE BOOKS OF THE TAX RECEIVER"): 

KAN. GEN. STAT., 1949, C. 43 ("SELECT FROM THOSE ASSESSED ON THE
ASSESSMENT ROLL OF THE PRECEDING YEAR"): 

KY. REV. STAT., 1948, SEC. 29.070 (LAST RETURNED TAX COMMISSIONER'S
BOOK): 

MD. ANN. CODE, 1939, ART. 51, PARA. 6 (FROM A "COMPLETE LIST OF MALE
TAXABLE INHABITANTS  ... WHOSE NAMES APPEAR ON THE TAX BOOKS"): 

MICH. STAT. ANN., 1938 AND 1951, SECS. 27.246 AND 27.247 (SELECT FROM
"PERSONS ASSESSED ON THE ASSESSMENT ROLL"; PROVIDES FOR ADDITIONAL
NAMES): 

MONT. REV. CODE, 1947, TIT. 93, SEC. 1402 ("SELECT, FROM THE LAST
ASSESSMENT ROLL OF THE COUNTY"):

MCKINNEY'S N.Y. LAWS, JUDICIARY LAW, SEC. 502 (1948)(OWN REAL
PROPERTY $150, OR PERSONAL PROPERTY $250, OR MARRIED TO SOMEONE WHO
DOES; JURORS IN COUNTIES OUTSIDE OF CITIES HAVING A POPULATION OF ONE
MILLION OR MORE).  MCKINNEY'S N.Y. LAWS, JUDICIARY LAW, SEC. 596: 

N.D. REV. CODE, 1943, SEC. 27-0906 ("THE NAMES ON THE ASSESSORS'
LISTS  ...  FOR THE PRECEDING YEAR SHALL BE THE BASIS FOR MAKING" AN
APPORTIONMENT OF THE 200 NAMES PER COUNTY TO THE VARIOUS CITIES AND
TOWN WITHIN THE COUNTY): 

OKLA. STAT. ANN., 1951, TIT. 38, SEC. 18 (JURY LISTS SHALL BE
SELECTED FROM THE NAMES ON THE TAX ROLLS OF THE COUNTY): 

ORE. COMP. LAWS ANN., 1940, SEC. 14-201 (MAKE A JURY LIST, "AS FAR AS
IT MAY BE ABLE TO ASCERTAIN THE SAME FROM THE LATEST TAX ROLL AND/OR
REGISTRATION BOOKS OF THE COUNTY"): 

UTAH CODE ANN., 1943, SEC. 48-0-17 ("SELECT FROM THE NAMES OF THE
LEGAL VOTERS ON THE ASSESSMENT ROLL  ...  "): 

REMINGTON'S WASH REV. STAT., 1932, SEC. 94 (NO PERSON IS COMPETENT TO
SERVE AS A JUROR UNLESS HE BE (1) AN ELECTOR AND TAXPAYER OF THE
STATE): 

WYO. COMP. STAT., 1945, SEC. 12-101(4)(A PERSON IS COMPETENT IF HE BE
(4) ASSESSED ON THE LAST ASSESSMENT ROLL OF THE COUNTY). 

SEE ALSO MORSE, A SURVEY OF THE GRAND JURY SYSTEM, PART 2, 10 ORE. 
L. REV. 217, 227 (1931).  THE ANSWERS TO THE QUESTIONAIRES SENT OUT BY
MR. MORSE INDICATED THAT IN TWENTY-TWO STATES THE NAMES FOR THE GRAND
JURY LISTS WERE SELECTED FROM COUNTY TAX ROLLS OR ASSESSMENT ROLLS. 

FN23  RULES DEALING WITH THE SELECTION OF JURIES IN FEDERAL COURTS,
AS ANNOUNCED IN THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217, 221, ARE
NOT APPLICABLE IN STATE COURT PROCEEDINGS.  FAY V. NEW YORK, 332 U.S.
261, 287.    FN24  EVIDENCE IN STATE CRIMINAL PROCEEDINGS TO SUPPORT
OBJECTIONS ON FEDERAL CONSTITUTIONAL GROUNDS, KNOWN TO STATE DEFENDANTS
AND THEIR COUNSEL, OR EASILY ASCERTAINABLE, CANNOT BE WITHHELD OR
NEGLECTED AT THE STATE TRIAL AND USED LATER TO SUPPORT HABEAS CORPUS. 
STATE CRIMINAL PROCEEDINGS WOULD BE UNREASONABLY HAMPERED.  EX PARTE
SPENCER, 228 U.S. 652, 660; IN RE WOOD, 140 U.S. 278, 285; CROWE V.
UNITED STATES, 175 F.2D 799; PRICE V. JOHNSTON, 334 U.S. 266, 289, AND
THE DISSENT. 

FN25  WE UNDERSTAND HIS LAST BASIS OF QUALIFICATION WAS NOT
REQUIRED.  SEE BROWN V. ALLEN, SUPRA, PAGE 470, AND GENERAL STATUTES OF
NORTH CAROLINA, SEC. 9-1 AS AMENDED 1947. 

FN26  MORAL CHARACTER AND INTELLIGENCE SUFFICIENT TO SERVE AS JURORS
IS THE STATUTORY TEST.  N.C. GEN. STAT., 1943, SEC. 9-1.  EVEN IN 1930
ONLY 18.5% OVER 10 YEARS OF AGE WERE ILLITERATE.  1930 CENSUS, VOL.
III, PART 2, P. 359.  SEE HILL V. TEXAS, 316 U.S. 400, 404. 

FN27  STATE V. DANIELS, 231 N.C. 17, 56 S.E.2D 2; 231 N.C. 341, 56
S.E.2D 646, 232 N.C.  196, 59 S.E.2D 430. 

FN28  COMPARE TAYLOR V. ALABAMA, 335 U.S. 252. 

FN29  STATE V. WATSON, 208 N.C. 70, 71, 179 S.E. 455, 456, IS A
CAPITAL CASE WHERE THE PRISONER "FAILED TO MAKE OUT AND SERVE STATEMENT
OF CASE ON APPEAL WITHIN THE STATUTORY PERIOD."  HE LOST HIS RIGHT TO
PROSECUTE THE APPEAL, AND IT WAS DISMISSED.  THE COURT POINTED OUT,
HOWEVER, THAT IT WAS CUSTOMARY IN CAPITAL CASES TO EXAMINE THE RECORD
TO SEE THAT NO ERROR APPEARED ON ITS FACE.  IN STATE V. MORROW, 220
N.C. 441, 17 S.E.2D 507, THE IDENTICAL PROCEDURE WAS FOLLOWED.  IN
STATE V. MOORE, 210 N.C. 686, 188 S.E. 421, AND STATE V. LAMPKIN, 227
N.C. 620, 44 S.E.2D 30, ALSO CAPITAL CASES, WRITS OF CERTIORARI WERE
DENIED WHEN THE STATEMENT OF THE CASE ON APPEAL HAD NOT BEEN FILED
WITHIN THE STATUTORY PERIOD. 

FN30  STATE V. DANIELS, 231 N.C. 17, 20(11), 56 S.E.2D 2, 4; GEN.
STAT. OF N.C., 1943, SEC. 1-587. 

FN31  SUNAL V. LARGE, 332 U.S. 174, 180; EAGLES V. SAMUELS, 329 U.S.
304, 311; IN RE YAMASHITA, 327 U.S. 1, 8; JOHNSON V. ZERBST, 304 U.S.
458, 465; GOTO V. LANE, 265 U.S. 393. 

FN32  DOWD V. COOK, 340 U.S. 206; SEE DE MEERLEER V. MICHIGAN, 329
U.S. 663; JOHNSON V. ZERBST, 304 U.S. 458. 

FN33  HAWK V. OLSON, 326 U.S. 271, 278; HERNDON V. LOWRY, 301 U.S.
242, 247. 

FN34  SMITH V. BALDI, DECIDED TODAY, POST, P. 561, AT PP. 569-570. 

FN35  DARR V. BURFORD, SUPRA, AT 203; EX PARTE SPENCER, 228 U.S. 652,
660.  SEE IN RE WOOD, 140 U.S. 278. 

FN36  SEE MCKANE V. DURSTON, 153 U.S. 684, 687, WHERE THIS COURT
SAID:  "AN APPEAL FROM A JUDGMENT OF CONVICTION IS NOT A MATTER OF
ABSOLUTE RIGHT, INDEPENDENTLY OF CONSTITUTIONAL OR STATUTORY PROVISIONS
ALLOWING SUCH APPEAL.  A REVIEW BY AN APPELLATE COURT OF THE FINAL
JUDGMENT IN A CRIMINAL CASE, HOWEVER GRAVE THE OFFENCE OF WHICH THE
ACCUSED IS CONVICTED, WAS NOT AT COMMON LAW AND IS NOT NOW A NECESSARY
ELEMENT OF DUE PROCESS OF LAW.  IT IS WHOLLY WITHIN THE DISCRETION OF
THE STATE TO ALLOW OR NOT TO ALLOW SUCH A REVIEW.  A CITATION OF
AUTHORITIES UPON THE POINT IS UNNECESSARY." 

MR. JUSTICE JACKSON CONCURS IN THIS RESULT FOR THE REASONS STATED IN
A SEPARATE OPINION.  (SEE POST, PP. 532, 548.) 

MR. JUSTICE BURTON AND MR. JUSTICE CLARK ADHERE TO THEIR POSITION AS
STATED IN DARR V. BURFORD, 339 U.S. 200, AT 219.  THEY BELIEVE THAT THE
NATURE OF THE PROCEEDING UPON A PETITION FOR CERTIORARI IS SUCH THAT,
WHEN THE REASONS FOR A DENIAL OF CERTIORARI ARE NOT STATED, THE DENIAL
SHOULD BE DISREGARDED IN PASSING UPON A SUBSEQUENT APPLICATION FOR
RELIEF, EXCEPT TO NOTE THAT THIS SOURCE OF POSSIBLE RELIEF HAS BEEN
EXHAUSTED. 

THEY JOIN IN THE JUDGMENT OF THE COURT IN THESE CASES AND THEY CONCUR
IN THE OPINION OF THE COURT EXCEPT INSOFAR AS IT MAY CONTAIN, IN PART
II, SUBDIVISION A (PP. 456-457), OR ELSEWHERE, ANY INDICATION THAT,
ALTHOUGH THE REASONS FOR A DENIAL OF CERTIORARI BE NOT STATED, THOSE
REASONS NEVERTHELESS MAY BE INFERRED FROM THE RECORD.  THEY ALSO
RECOGNIZE THE PROPRIETY OF THE CONSIDERATIONS TO WHICH MR. JUSTICE
FRANKFURTER INVITES THE ATTENTION OF A FEDERAL COURT WHEN CONFRONTED
WITH A PETITION FOR A WRIT OF HABEAS CORPUS UNDER THE CIRCUMSTANCES
STATED. 

MR. JUSTICE FRANKFURTER.* 

*FOR NOTATION OF POSITION OF MR. JUSTICE BURTON AND MR. JUSTICE CLARK
ON THE SAME POINTS, SEE ANTE, P. 487; FOR NOTATION OF POSITION OF MR.
JUSTICE BLACK AND MR. JUSTICE DOUGLAS ON THE SAME POINTS, SEE POST, P.
513.  IN ADDITION TO THE THREE CASES DECIDED IN THE OPINION OF THE
COURT, ANTE, P. 443, THIS OPINION APPLIES ALSO TO UNITED STATES EX REL.
SMITH V. BALDI, POST, P. 561. 

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: 

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, WHEN AN APPLICATION FOR A WRIT OF HABEAS CORPUS
THEREAFTER COMES BEFORE A DISTRICT COURT. 

II.  THE BEARING THAT THE PROCEEDINGS IN THE STATE COURTS SHOULD HAVE
ON THE DISPOSITION OF SUCH AN APPLICATION IN A DISTRICT COURT. 

                                   I. 

DARR V. BURFORD SHEDS NO LIGHT ON THE EFFECT A DISTRICT COURT IS TO
GIVE OUR DENIAL OF CERTIORARI IN ONE OF THESE CASES.  THAT DECISION WAS
EXPRESSLY LIMITED TO RULING THAT "ORDINARILY" THE CERTIORARI
JURISDICTION OF THIS COURT MUST BE INVOKED IN AN ATTEMPT TO SECURE
REVIEW OF A STATE COURT'S REFUSAL OF RELIEF PRIOR TO AN APPLICATION FOR
HABEAS CORPUS IN A DISTRICT COURT.  DARR V. BURFORD, 339 U.S., AT 201,
214.  THE FACT THAT TWO MEMBERS OF THE NECESSARY MAJORITY IN DARR V.
BURFORD DEEMED IT APPROPRIATE TO DISAVOW CONCURRENCE IN ANY
"INDICATION" IN THE COURT'S OPINION THAT ANY EFFECT IS TO BE GIVEN TO
THE DENIAL OF CERTIORARI EMPHASIZES THAT NO SUCH RULING CAN BE
ATTRIBUTED TO DARR V. BURFORD.  IT WAS THE VIEW OF MR. JUSTICE BURTON
AND MR. JUSTICE CLARK "THAT THE NATURE OF THE PROCEEDING IS SUCH THAT,
WHEN THE REASONS FOR A DENIAL OF CERTIORARI ARE NOT STATED, THE DENIAL
SHOULD BE DISREGARDED IN PASSING UPON A SUBSEQUENT APPLICATION FOR
RELIEF, EXCEPT TO NOTE THAT THIS SOURCE OF POSSIBLE RELIEF HAS BEEN
EXHAUSTED."  DARR V. BURFORD, SUPRA, AT 219.  OF COURSE, WHEN THE
REASONS ARE GIVEN, THE DECISION TO DENY WILL HAVE THE EFFECT INDICATED
BY THE REASONS STATED.  BUT WE KNOW BEST HOW PUZZLING IT OFTEN WOULD BE
TO STATE WHY THE COURT DENIED CERTIORARI EVEN WHEN WE ARE PARTIES TO
THE DENIAL. 

IN THE THREE CASES NOW HERE FROM THE FOURTH CIRCUIT, THE COURT OF
APPEALS RELIED HEAVILY ON OUR DENIAL OF CERTIORARI IN RULING AGAINST
APPLICATIONS FOR FEDERAL HABEAS CORPUS BY STATE PRISONERS.  (FN1)  ITS
OPINION IN NO. 20 RELIES ON, AND THE PER CURIAM DECISION IN NOS. 22 AND
32 QUOTES, AN EARLIER DECISION BY THAT COURT BASED ON AN EXPRESS
ASSUMPTION THAT IF THIS COURT HAD THOUGHT THAT THE RECORD SHOWED A
DENIAL OF CONSTITUTIONAL RIGHTS, CERTIORARI WOULD HAVE BEEN GRANTED. 
STONEBREAKER V. SMYTH, 163 F.2D 498, 499. 

IF WE WERE TO SANCTION A RULE DIRECTING THE DISTRICT COURT TO GIVE
ANY EFFECT TO A DENIAL OF CERTIORARI, LET ALONE THE EFFECT OF RES
JUDICATA WHICH IS THE PRACTICAL RESULT OF THE POSITION OF THE FOURTH
CIRCUIT, WE WOULD BE IGNORING ACTUALITIES RECOGNIZED EVER SINCE
CERTIORARI JURISDICTION WAS CONFERRED UPON THIS COURT MORE THAN SIXTY
YEARS AGO. 

FROM ITS INCEPTION CERTIORARI JURISDICTION HAS BEEN TREATED FOR WHAT
IT IS IN VIEW OF THE FUNCTION THAT IT WAS DEVISED TO SERVE.  IT WAS
DESIGNED TO PERMIT THIS COURT TO KEEP WITHIN MANAGEABLE PROPORTIONS,
HAVING DUE REGARD TO THE CONDITIONS INDISPENSABLE FOR THE WISE
ADJUDICATION OF THOSE CASES WHICH MUST BE DECIDED HERE, THE BUSINESS
THAT IS ALLOWED TO COME BEFORE US.  BY SUCCESSIVE MEASURES CONGRESS
ENLARGED THE DISCRETIONARY JURISDICTION OF THE COURT UNTIL, BY THE
JUDICIARY ACT OF 1925, SUPPLEMENTED BY THE COURT'S OWN INVENTION OF THE
JURISDICTIONAL STATEMENT IN RELATION TO THE NARROW SCOPE OF RESIDUAL
APPEALS, THE COURT BECAME COMPLETE MASTER OF ITS DOCKET.  THE GOVERNING
CONSIDERATION WAS AUTHORITY IN THE COURT TO DECLINE TO REVIEW DECISIONS
WHICH, RIGHT OR WRONG, DO NOT PRESENT QUESTIONS OF SUFFICIENT GRAVITY. 
WHATEVER THE SOURCE OF THESE QUESTIONS, WHETHER THE COMMON LAW,
STATUTES OR THE CONSTITUTION, OTHER CASES OF OBVIOUS GRAVITY ARE MORE
THAN ENOUGH TO ABSORB THE COURT'S TIME AND THOUGHT.  CF. HAMILTON SHOE
CO. V. WOLF BROTHERS, 240 U.S. 251, 258. 

IT IS WITHIN THE EXPERIENCE OF EVERY MEMBER OF THIS COURT THAT WE DO
NOT HAVE TO, AND FREQUENTLY DO NOT, REACH THE MERITS OF A CASE TO
DECIDE THAT IT IS NOT OF SUFFICIENT IMPORTANCE TO WARRANT REVIEW HERE. 
THIRTY YEARS AGO THE COURT RATHER SHARPLY REMINDED THE BAR NOT TO DRAW
STRENGTH FOR LOWER COURT OPINIONS FROM THE FACT THAT THEY WERE LEFT
UNREVIEWED HERE.  "THE DENIAL OF A WRIT OF CERTIORARI IMPORTS NO
EXPRESSION OF OPINION UPON THE MERITS OF THE CASE, AS THE BAR HAS BEEN
TOLD MANY TIMES."  UNITED STATES V. CARVER, 260 U.S. 482, 490.  WE HAVE
REPEATEDLY INDICATED THAT A DENIAL OF CERTIORARI MEANS ONLY THAT, FOR
ONE REASON OR ANOTHER WHICH IS SELDOM DISCLOSED, AND NOT INFREQUENTLY
FOR CONFLICTING REASONS WHICH MAY HAVE NOTHING TO DO WITH THE MERITS
AND CERTAINLY MAY HAVE NOTHING TO DO WITH ANY VIEW OF THE MERITS TAKEN
BY A MAJORITY OF THE COURT, THERE WERE NOT FOUR MEMBERS OF THE COURT
WHO THOUGHT THE CASE SHOULD BE HEARD.  ANY DEPARTURE FROM THIS
FUNDAMENTAL RULE IN THE TYPE OF CASE WE ARE CONSIDERING OUGHT TO BE
BASED ON A SHOWING THAT THESE DENIALS OF CERTIORARI, UNLIKE ALL THE
OTHER DENIALS, ARE IN FACT THE ESSENTIAL EQUIVALENTS OF ADJUDICATION ON
THE MERITS.  THE RESULTS OF THE INQUIRY DETAILED IN THE APPENDIX, POST,
P. 514, SHOW THAT THE CONTRARY IS THE FACT.  (FN2)  THERE IS CERTAINLY
NO MORE ASSURANCE THAT THESE PETITIONS HAVE BEEN CANVASSED ON THEIR
MERITS THAN IS TRUE OF CASES WITHIN THE ORDINARY DOMAIN OF CERTIORARI
JURISDICTION. 

INDEED, THERE IS LESS ASSURANCE THAT PETITIONS BY STATE PRISONERS
COULD BE CONSIDERED ON THEIR MERITS THAN IS THE CASE WITH ORDINARY
PETITIONS FOR CERTIORARI.  TO TREAT DENIALS OF CERTIORARI IN CASES IN
WHICH APPLICATIONS FOR HABEAS CORPUS ARE SUBSEQUENTLY MADE IN EFFECT AS
ADJUDICATIONS HERE, PRESUPPOSES, AT THE LEAST, THAT SUCH
"DETERMINATIONS" ARE BASED ON RECORDS OF LITIGATION IN WHICH ISSUES ARE
MORE OR LESS CAREFULLY SHAPED BY COMPETENT LAWYERS, AS IS AFTER ALL
TRUE OF THE ORDINARY FLOW OF CERTIORARI CASES.  SUCH AN ASSUMPTION IS
SHOWN TO BE WHOLLY BASELESS BY THE STUDY OF THE 126 CERTIORARI FILES ON
WHICH THIS OPINION IS BASED.  IT IS ALSO AN ASSUMPTION THAT FALSIFIES
THE PICTURE OF THE HABEAS CORPUS PROBLEMS FACING THE DISTRICT JUDGE. 

THESE PETITIONS FOR CERTIORARI ARE RARELY DRAWN BY LAWYERS; SOME ARE
ALMOST UNINTELLIGIBLE AND CERTAINLY DO NOT PRESENT A CLEAR STATEMENT OF
ISSUES NECESSARY FOR OUR UNDERSTANDING, IN VIEW OF THE PRESSURE OF THE
COURT'S WORK.  (FN3)  THE CERTIFIED RECORDS WE HAVE IN THE RUN OF
CERTIORARI CASES TO ASSIST UNDERSTANDING ARE ALMOST UNKNOWN IN THIS
FIELD.  (FN4)  INDEED, THE NUMBER OF CASES IN WHICH MOST OF THE PAPERS
NECESSARY TO PROVE WHAT HAPPENED IN THE STATE PROCEEDINGS ARE NOT FILED
IS STRIKING.  WHETHER THERE HAS BEEN AN ADJUDICATION OR SIMPLY A
PERFUNCTORY DENIAL OF A CLAIM BELOW IS RARELY ASCERTAINABLE.  SELDOM DO
WE HAVE ENOUGH ON WHICH TO BASE A SOLID CONCLUSION AS TO THE ADEQUACY
OF THE STATE ADJUDICATION.  EVEN IF WE ARE TOLD SOMETHING ABOUT A TRIAL
OF THE CLAIMS THE APPLICANT ASSERTS, WE ALMOST NEVER HAVE A TRANSCRIPT
OF THESE PROCEEDINGS TO ASSIST US IN DETERMINING WHETHER THE TRIAL WAS
ADEQUATE.  (FN5)  EQUALLY UNSATISFACTORY AS A MEANS FOR EVALUATING THE
STATE PROCEEDINGS IS THE FILING OF OPINIONS; IN LESS THAN ONE-FOURTH OF
THE CASES IS MORE THAN A PERFUNCTORY ORDER OF THE STATE COURTS FILED. 
(FN6)  WE WOULD HAVE TO HAVE VERY DIFFERENT RECORDS AND TO ALTER OUR
CONSIDERATION OF THESE CASES RADICALLY IF A DENIAL COULD FAIRLY BE
DEEMED TO BE AN UNDISCLOSED DECISION ON THE MERITS.  IN A FEW CASES THE
ISSUES BEFORE THE DISTRICT COURT HAD NOT EVEN BEEN RAISED HERE.  (FN7)
IN OTHER CASES, THE EMPHASIS PUT ON THE ISSUES HERE DIFFERED
CONSIDERABLY FROM THAT PUT ON THEM IN THE DISTRICT COURTS.  ALICE COULD
UNDERSTAND, BUT NOT I, HOW UNDER SUCH CIRCUMSTANCES A DISTRICT JUDGE
COULD ASSUME IF HE IS SO MINDED, THAT WE "DECIDED" THE QUESTION NOW
PRESENTED TO HIM. 

JUST AS THERE IS NO GROUND FOR HOLDING THAT OUR DENIAL IS IN EFFECT
RES JUDICATA, SO EQUALLY IS THERE NO BASIS FOR LEAVING THE DISTRICT
JUDGE FREE TO DECIDE WHETHER WE PASSED ON THE MERITS.  FOR THERE IS
MORE TO THE STORY.  THE DISTRICT JUDGE ORDINARILY KNOWS PAINFULLY
LITTLE OF THE PAINFULLY LITTLE WE KNEW.  IT IS A RARE CASE INDEED IN
WHICH THE DISTRICT COURT HAS ANY INFORMATION CONCERNING THE CERTIORARI
PROCEEDING.  IN OVER 90% OF THE CASES STUDIED, THERE WERE NEITHER
PAPERS FILED NOR ALLEGATIONS MADE INDICATING IN ANY WAY WHAT ISSUE THE
PETITION FOR CERTIORARI PRESENTED.  (FN8)  IN EVEN FEWER CASES WAS
THERE ANY INDICATION THAT ANY PAPERS FROM THE STATE PROCEEDINGS HAD
BEEN BEFORE THIS COURT.  (FN9)  IT MAY BE SAID THAT THE DISTRICT COURT
CAN CALL FOR THE PAPERS THAT WERE HERE.  IT IS SELDOM DONE.  (FN10)
MOREOVER, IN VIEW OF THE UNLIKELIHOOD THAT SUCH A RECORD COULD REVEAL
ENOUGH FOR A SOUND JUDGMENT, SUCH A REQUIREMENT WOULD BE FUTILE.  BUT
OTHERWISE THE DISTRICT JUDGE CAN KNOW ONLY IN A NEGLIGIBLE NUMBER OF
CASES WHAT LITTLE WE HAD BEFORE US.  TO SAY THAT HE IS AT LIBERTY TO
DECIDE WHETHER WE PASSED ON THE MERITS OF A CASE INVITES WHAT MUST, IN
ALMOST ALL CASES, BE IDLE SPECULATION.  WE WOULD BE INVITING A BUSY
FEDERAL DISTRICT JUDGE TO REST ON OUR DENIAL AND CLOAK HIS FAILURE TO
EXERCISE A JUDGMENT IN FORMAL COMPLIANCE WITH A STATEMENT THAT HE CAN
GIVE MEANING TO SOMETHING THAT ALMOST ALWAYS MUST TO HIM BE
MEANINGLESS.   IT IS INADMISSIBLE TO ACT AS THOUGH THESE CASES
PROCEEDED THROUGH THE COURTS IN AN ORDERLY FASHION, LEAVING BEHIND NEAT
RECORDS WHICH CAN BE TRACED EFFECTIVELY WITH PROMISE OF ENLIGHTENMENT,
ONCE TRACED.  ALTHOUGH IT SEEMS DIFFICULT TO CONCEIVE OF MANY CASES IN
WHICH A DISTRICT JUDGE, PRESENTED WITH A FULL RECORD OF THE PROCEEDINGS
HERE, COULD GIVE ANY RELEVANT EFFECT TO THE DENIAL OF CERTIORARI, THE
LIKELIHOOD IS NEGLIGIBLE THAT SUCH A CASE WILL ALSO BE ONE OF THE VERY
FEW IN WHICH HE HAS ENOUGH MATERIALS TO KNOW WHAT WAS BEFORE US.  TO
GIVE HIM DISCRETION TO INTERPRET THE DENIAL OF CERTIORARI AS A
"DETERMINATION" CAN SO RARELY BE RATIONALLY JUSTIFIED THAT IT IS EITHER
FUTILE OR MISCHIEVOUS TO ALLOW SUCH DENIAL TO WEIGH IN THE DISTRICT
COURT'S DISPOSITION. 

IN DARR V. BURFORD IT WAS DECIDED, AS A MATTER OR PROPER
ADMINISTRATION, THAT DUE REGARD FOR THE RELATIONS BETWEEN STATE AND
FEDERAL AUTHORITY MAKES IT UNDESIRABLE IN THE ORDINARY CASE TO PERMIT
AN APPLICATION TO A FEDERAL DISTRICT COURT ON A CLAIM WHICH HAS ALREADY
BEEN PRESENTED TO THE STATE COURT BEFORE WE HAVE HAD AN OPPORTUNITY TO
REVIEW THE STATE COURT ACTION HERE.  TO HOLD, HOWEVER, THAT A DENIAL OF
CERTIORARI MAY BE DEEMED TO BE APPROVAL OF THE DECISION OF THE STATE
COURT WOULD BE SOMETHING FAR BEYOND FASHIONING A RULE FOR THE
ADMINISTRATION OF JUDICIAL BUSINESS.  IF DISTRICT JUDGES WERE
AUTHORIZED TO DENY AN APPLICATION FOR HABEAS CORPUS MERELY BECAUSE THE
ISSUES MAY HAVE BEEN CONSIDERED BY THIS COURT IN DENYING A PETITION FOR
CERTIORARI, THE DUTY, WHICH HAS BEEN ENTRUSTED TO THE FEDERAL COURTS
SINCE THE ENLARGEMENT OF THE SCOPE OF HABEAS CORPUS JURISDICTION BY THE
ACT OF 1867, TO DEAL JUDICIALLY WITH APPLICATIONS FOR WRITS OF HABEAS
CORPUS BY STATE CONVICTS WOULD BE LEFT TO THE UNBOUNDED, BECAUSE
UNDEFINED, DISCRETION OF THE DISTRICT JUDGES THROUGHOUT THE LAND. 
JUDGES DEALING WITH THE WRIT OF HABEAS CORPUS, AS WITH TEMPORARY
INJUNCTIONS, MUST BE LEFT SOME DISCRETION - ROOM FOR ASSESSING FACT AND
BALANCING CONFLICTING CONSIDERATIONS OF PUBLIC INTEREST - IF LAW IS NOT
TO BE A PROCRUSTES BED.  BUT DISCRETION MUST BE JUDICIAL DISCRETION. 
IT MUST BE SUBJECT TO RATIONAL CRITERIA, BY WHICH PARTICULAR SITUATIONS
MAY BE ADJUDGED.  TO ALLOW APPLICATIONS FOR HABEAS CORPUS TO BE DENIED
MERELY BECAUSE IT IS DEEMED, ON NO REASONABLE OR, AT BEST, ON THE MOST
FRAGILE FOUNDATIONS, THAT THE MATTER HAS ALREADY BEEN ADJUDICATED HERE,
IS TO AFFORD NO CRITERION, BUT MERELY A SHELTER FOR DISTRICT JUDGES TO
RESPOND ACCORDING TO THE INDIVIDUAL WILL. 

WE MUST NOT INVITE THE EXERCISE OF JUDICIAL IMPRESSIONISM. 
DISCRETION THERE MAY BE, BUT "METHODIZED BY ANALOGY, DISCIPLINED BY
SYSTEM."  CARDOZO, THE NATURE OF THE JUDICIAL PROCESS, 139, 141
(1921).  DISCRETION WITHOUT A CRITERION FOR ITS EXERCISE IS
AUTHORIZATION OF ARBITRARINESS.  THE NATION'S SUPREME COURT OUGHT TO BE
ABLE TO DO BETTER THAN TO TELL THE FEDERAL JUDGES OF THE LAND, IN A
FIELD SO VITAL AS THAT OF HABEAS CORPUS TO VINDICATE CONSTITUTIONAL
RIGHTS, THAT THEY MAY DO AS THEY PLEASE - THAT THEY ARE NOT TO BE
BOUND, NOR TO BE GUIDED, BY CONSIDERATIONS CAPABLE OF RATIONAL
FORMULATION. 

THIS IS NOT TO IMPUGN THE CONSCIENTIOUSNESS OF FEDERAL JUDGES; IF
LEFT AT LARGE IN DISPOSING OF APPLICATIONS FOR A WRIT OF HABEAS CORPUS,
THEY WOULD NECESSARILY BE THROWN BACK UPON THEIR INDIVIDUAL JUDGMENTS,
AND THAT WOULD BE THE EXERCISE NOT OF LAW BUT OF ARBITRARINESS. 

THE REASONS WHY OUR DENIAL OF CERTIORARI IN THE ORDINARY RUN OF CASES
CAN BE ANY NUMBER OF THINGS OTHER THAN A DECISION ON THE MERITS ARE
ONLY MULTIPLIED BY THE CIRCUMSTANCES OF THIS CLASS OF PETITIONS.  AND
SO WE CONCLUDE THAT IN HABEAS CORPUS CASES, AS IN OTHERS, DENIAL OF
CERTIORARI CANNOT BE INTERPRETED AS AN "EXPRESSION OF OPINION ON THE
MERITS."  SUNAL V. LARGE, 332 U.S. 174, 181. 

                 II. 

THE ISSUE OF THE SIGNIFICANCE OF THE DENIAL OF CERTIORARI RAISES A
SHARP DIVISION IN THE COURT.  THIS IS NOT SO AS TO THE BEARING OF THE
PROCEEDINGS IN THE STATE COURTS UPON THE DISPOSITION OF THE APPLICATION
FOR A WRIT OF HABEAS CORPUS IN THE FEDERAL DISTRICT COURTS.  THIS
OPINION IS DESIGNED TO MAKE EXPLICIT AND DETAILED MATTERS THAT ARE ALSO
THE CONCERN OF MR. JUSTICE REED'S OPINION.  THE UNCOMMON CIRCUMSTANCES
IN WHICH A DISTRICT COURT SHOULD ENTERTAIN AN APPLICATION OUGHT TO BE
DEFINED WITH GREATER PARTICULARITY, AS SHOULD BE THE CRITERIA FOR
DETERMINING WHEN A HEARING IS PROPER.  THE VIEWS OF THE COURT ON THESE
QUESTIONS MAY THUS BE DRAWN FROM THE TWO OPINIONS JOINTLY. 

I DEEM IT APPROPRIATE TO BEGIN BY MAKING EXPLICIT SOME BASIC
CONSIDERATIONS UNDERLYING THE FEDERAL HABEAS CORPUS JURISDICTION. 
EXPERIENCE MAY BE SUMMONED TO SUPPORT THE BELIEF THAT MOST CLAIMS IN
THESE ATTEMPTS TO OBTAIN REVIEW OF STATE CONVICTIONS ARE WITHOUT
MERIT.  PRESUMABLY THEY ARE ADEQUATELY DEALT WITH IN THE STATE COURTS. 
AGAIN, NO ONE CAN FEEL MORE STRONGLY THAN I DO THAT A CASUAL,
UNRESTRICTED OPENING OF THE DOORS OF THE FEDERAL COURTS TO THESE CLAIMS
NOT ONLY WOULD CAST AN UNDUE BURDEN UPON THOSE COURTS, BUT WOULD ALSO
DISREGARD OUR DUTY TO SUPPORT AND NOT WEAKEN THE STURDY ENFORCEMENT OF
THEIR CRIMINAL LAWS BY THE STATES.  THAT WHOLESALE OPENING OF STATE
PRISON DOORS BY FEDERAL COURTS IS, HOWEVER, NOT AT ALL THE REAL ISSUE
BEFORE US IS BEST INDICATED BY A SURVEY RECENTLY PREPARED IN THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS FOR THE CONFERENCE OF
CHIEF JUSTICES: OF ALL FEDERAL QUESTION APPLICATIONS FOR HABEAS CORPUS,
SOME NOT EVEN RELATING TO STATE CONVICTIONS, ONLY 67 OUT OF 3,702
APPLICATIONS WERE GRANTED IN THE LAST SEVEN YEARS.  AND "ONLY A SMALL
NUMBER" OF THESE 67 APPLICATIONS RESULTED IN RELEASE FROM PRISON:  "A
MORE DETAILED STUDY OVER THE LAST FOUR YEARS  ...  SHOWS THAT OUT OF 29
PETITIONS GRANTED, THERE WERE ONLY 5 PETITIONERS WHO WERE RELEASED FROM
STATE PENITENTIARIES."  (FN11)  THE MERITORIOUS CLAIMS ARE FEW, BUT OUR
PROCEDURES MUST ENSURE THAT THOSE FEW CLAIMS ARE NOT STIFLED BY
UNDISCRIMINATING GENERALITIES.  THE COMPLEXITIES OF OUR FEDERALISM AND
THE WORKINGS OF A SCHEME OF GOVERNMENT INVOLVING THE INTERPLAY OF TWO
GOVERNMENTS, ONE OF WHICH IS SUBJECT TO LIMITATIONS ENFORCEABLE BY THE
OTHER, ARE NOT TO BE ESCAPED BY SIMPLE, RIGID RULES WHICH, BY AVOIDING
SOME ABUSES, GENERATE OTHERS. 

FOR SURELY IT IS AN ABUSE TO DEAL TOO CASUALLY AND TOO LIGHTLY WITH
RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION, EVEN THOUGH THEY INVOLVE
LIMITATIONS UPON STATE POWER AND MAY BE INVOKED BY THOSE MORALLY
UNWORTHY.  UNDER THE GUISE OF FASHIONING A PROCEDURAL RULE, WE ARE NOT
JUSTIFIED IN WIPING OUT THE PRACTICAL EFFICACY OF A JURISDICTION
CONFERRED BY CONGRESS ON THE DISTRICT COURTS.  RULES WHICH IN EFFECT
TREAT ALL THESE CASES INDISCRIMINATELY AS FRIVOLOUS DO NOT FALL SHORT
OF ABOLISHING THIS HEAD OF JURISDICTION. 

CONGRESS COULD HAVE LEFT THE ENFORCEMENT OF FEDERAL CONSTITUTIONAL
RIGHTS GOVERNING THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE STATES
EXCLUSIVELY TO THE STATE COURTS.  THESE TRIBUNALS ARE UNDER THE SAME
DUTY AS THE FEDERAL COURTS TO RESPECT RIGHTS UNDER THE UNITED STATES
CONSTITUTION.  SEE THE FEDERALIST, NO. 82; CLAFLIN V. HOUSEMAN, 93 U.S.
130; TESTA V. KATT, 330 U.S. 386; NOTE, 60 HARV. L. REV. 966.  INDEED,
THE JURISDICTION GIVEN TO THE FEDERAL COURTS TO ISSUE WRITS OF HABEAS
CORPUS BY THE FIRST JUDICIARY ACT, SEC. 14, 1 STAT. 81-82, EXTENDED
ONLY TO PRISONERS IN CUSTODY UNDER AUTHORITY OF THE UNITED STATES.  IT
WAS NOT UNTIL THE ACT OF 1867 THAT THE POWER TO ISSUE THE WRIT WAS
EXTENDED TO AN APPLICANT UNDER SENTENCE OF A STATE COURT.  IT IS NOT
FOR US TO DETERMINE WHETHER THIS POWER SHOULD HAVE BEEN VESTED IN THE
FEDERAL COURTS.  AS MR. JUSTICE BRADLEY, WITH HIS USUAL ACUTENESS,
COMMENTED NOT LONG AFTER THE PASSAGE OF THAT ACT, "ALTHOUGH IT MAY
APPEAR UNSEEMLY THAT A PRISONER, AFTER CONVICTION IN A STATE COURT,
SHOULD BE SET AT LIBERTY BY A SINGLE JUDGE ON HABEAS CORPUS, THERE
SEEMS TO BE NO ESCAPE FROM THE LAW."  EX PARTE BRIDGES, 2 WOODS (5TH
CIR.) 428, 432.  HIS FEELING HAS BEEN RECENTLY ECHOED IN A PROPOSAL OF
THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES THAT THESE CASES BE
HEARD BY THREE-JUDGE COURTS.  (FN12)  SEE REP. JUD.  CONF.  1943, P.
23.  BUT THE WISDOM OF SUCH A MODIFICATION IN THE LAW IS FOR CONGRESS
TO CONSIDER, PARTICULARLY IN VIEW OF THE EFFECT OF THE EXPANDING
CONCEPT OF DUE PROCESS UPON ENFORCEMENT BY THE STATES OF THEIR CRIMINAL
LAWS.  IT IS FOR THIS COURT TO GIVE FAIR EFFECT TO THE HABEAS CORPUS
JURISDICTION AS ENACTED BY CONGRESS.  BY GIVING THE FEDERAL COURTS THAT
JURISDICTION, CONGRESS HAS IMBEDDED INTO FEDERAL LEGISLATION THE
HISTORIC FUNCTION OF HABEAS CORPUS ADAPTED TO REACHING AN ENLARGED AREA
OF CLAIMS.  SEE, E.G., MOONEY V. HOLOHAN, 294 U.S. 103; JOHNSON V.
ZERBST, 304 U.S. 458. 

IN EXERCISING THE POWER THUS BESTOWED, THE DISTRICT JUDGE MUST TAKE
DUE ACCOUNT OF THE PROCEEDINGS THAT ARE CHALLENGED BY THE APPLICATION
FOR A WRIT.  ALL THAT HAS GONE BEFORE IS NOT TO BE IGNORED AS
IRRELEVANT.  BUT THE PRIOR STATE DETERMINATION OF A CLAIM UNDER THE
UNITED STATES CONSTITUTION CANNOT FORECLOSE CONSIDERATION OF SUCH A
CLAIM, ELSE THE STATE COURT WOULD HAVE THE FINAL SAY WHICH THE
CONGRESS, BY THE ACT OF 1867, PROVIDED IT SHOULD NOT HAVE.  CF. EX
PARTE ROYALL, 117 U.S. 241, 248-250.  A STATE DETERMINATION MAY HELP TO
DEFINE THE CLAIM URGED IN THE APPLICATION FOR THE WRIT AND MAY BEAR ON
THE SERIOUSNESS OF THE CLAIM.  THAT MOST CLAIMS ARE FRIVOLOUS HAS AN
IMPORTANT BEARING UPON THE PROCEDURE TO BE FOLLOWED BY A DISTRICT
JUDGE.  THE PRIOR STATE DETERMINATION MAY GUIDE HIS DISCRETION IN
DECIDING UPON THE APPROPRIATE COURSE TO BE FOLLOWED IN DISPOSING OF THE
APPLICATION BEFORE HIM.  THE STATE RECORD MAY SERVE TO INDICATE THE
NECESSITY OF FURTHER PLEADINGS OR OF A QUICK HEARING TO CLEAR UP AN
AMBIGUITY, OR THE STATE RECORD MAY SHOW THE CLAIM TO BE FRIVOLOUS OR
NOT WITHIN THE COMPETENCE OF A FEDERAL COURT BECAUSE SOLELY DEPENDENT
ON STATE LAW. 

IT MAY BE A MATTER OF PHRASING WHETHER WE SAY THAT THE DISTRICT JUDGE
SUMMARILY DENIES AN APPLICATION FOR A WRIT OF ACCEPTING THE RULING OF
THE STATE COURT OR BY MAKING AN INDEPENDENT JUDGMENT, THOUGH HE DOES SO
ON THE BASIS OF WHAT THE STATE RECORD REVEALS.  BUT SINCE PHRASING
MIRRORS THOUGHT, IT IS IMPORTANT THAT THE PHRASING NOT OBSCURE THE TRUE
ISSUE BEFORE A FEDERAL COURT.  OUR PROBLEM ARISES BECAUSE CONGRESS HAS
TOLD THE DISTRICT JUDGE TO ACT ON THOSE OCCASIONS, HOWEVER RARE, WHEN
THERE ARE MERITORIOUS CAUSES IN WHICH HABEAS CORPUS IS THE ULTIMATE AND
ONLY RELIEF AND DESIGNED TO BE SUCH.  VAGUE, UNDEFINED DIRECTIONS
PERMITTING THE DISTRICT COURT TO GIVE "CONSIDERATION" TO A PRIOR STATE
DETERMINATION FALL SHORT OF APPROPRIATE GUIDANCE FOR BRINGING TO THE
SURFACE THE MERITORIOUS CASE.  THEY MAY SERVE INDISCRIMINATELY TO
PRECLUDE A HEARING WHERE ONE SHOULD HAVE BEEN GRANTED, AND YET THIS
BASIS FOR DENIAL MAY BE SO WOVEN INTO THE TEXTURE OF THE RESULT THAT AN
IMPROPER DEFERENCE TO A STATE COURT TREATMENT OF A CONSTITUTIONAL ISSUE
CANNOT EVEN BE CORRECTED ON REVIEW.  IF WE ARE TO GIVE EFFECT TO THE
STATUTE AND AT THE SAME TIME AVOID IMPROPER INTRUSION INTO THE STATE
CRIMINAL PROCESS BY FEDERAL JUDGES - AND THERE IS NO BASIS FOR THINKING
THERE IS SUCH INTRUSION UNLESS "MEN THINK DRAMATICALLY, NOT
QUANTITATIVELY," HOLMES, COLLECTED LEGAL PAPERS, P. 293 - WE MUST
DIRECT THEM TO PROBE THE FEDERAL QUESTION WHILE DRAWING ON AVAILABLE
RECORDS OF PRIOR PROCEEDINGS TO GUIDE THEM IN DOING SO. 

OF COURSE, EXPERIENCE CAUTIONS THAT THE VERY NATURE AND FUNCTION OF
THE WRIT OF HABEAS CORPUS PRECLUDES THE FORMULATION OF FOOL-PROOF
STANDARDS WHICH THE 225 DISTRICT JUDGES CAN AUTOMATICALLY APPLY.  HERE
AS ELSEWHERE IN MATTERS OF JUDICIAL ADMINISTRATION WE MUST ATTRIBUTE TO
THEM THE GOOD SENSE AND STURDINESS APPROPRIATE FOR MEN WHO WIELD THE
POWER OF A FEDERAL JUDGE.  CERTAINLY WE WILL NOT GET THESE QUALITIES IF
WE FASHION RULES ASSUMING THE CONTRARY.  BUT IT IS IMPORTANT, IN ORDER
TO PRECLUDE INDIVIDUALIZED ENFORCEMENT OF THE CONSTITUTION IN DIFFERENT
PARTS OF THE NATION, TO LAY DOWN AS SPECIFICALLY AS THE NATURE OF THE
PROBLEM PERMITS THE STANDARDS OR DIRECTIONS THAT SHOULD GOVERN THE
DISTRICT JUDGES IN THE DISPOSITION OF APPLICATIONS FOR HABEAS CORPUS BY
PRISONERS UNDER SENTENCE OF STATE COURTS. 

FIRST.  JUST AS IN ALL OTHER LITIGATION, A PRIMA FACIE CASE MUST BE
MADE OUT BY THE PETITIONER.  THE APPLICATION SHOULD BE DISMISSED WHEN
IT FAILS TO STATE A FEDERAL QUESTION, OR FAILS TO SET FORTH FACTS
WHICH, IF ACCEPTED AT FACE VALUE, WOULD ENTITLE THE APPLICANT TO
RELIEF. 

CARE WILL NATURALLY BE TAKEN THAT THE FREQUENT LACK OF TECHNICAL
COMPETENCE OF PRISONERS SHOULD NOT STRANGLE CONSIDERATION OF A VALID
CONSTITUTIONAL CLAIM THAT IS BUNGLINGLY PRESENTED.  DISTRICT JUDGES
HAVE RESORTED TO VARIOUS PROCEDURES TO THAT END.  THUS, A LAWYER MAY BE
APPOINTED, IN THE EXERCISE OF THE INHERENT AUTHORITY OF THE DISTRICT
COURT (CF., E.G., EX PARTE PETERSON, 253 U.S. 300), EITHER AS AN AMICUS
OR AS COUNSEL FOR THE PETITIONER, TO EXAMINE THE CLAIM AND TO REPORT,
OR THE JUDGE MAY DISMISS THE PETITION WITHOUT PREJUDICE.  (FN13) 

SECOND.  FAILURE TO EXHAUST AN AVAILABLE STATE REMEDY IS AN OBVIOUS
GROUND FOR DENYING THE APPLICATION.  AN ATTEMPT MUST HAVE BEEN MADE IN
THE STATE COURT TO PRESENT THE CLAIM NOW ASSERTED IN THE DISTRICT
COURT, IN COMPLIANCE WITH SEC. 2254 OF THE JUDICIAL CODE.  SECTION 2254
DOES NOT, HOWEVER, REQUIRE REPEATED ATTEMPTS TO INVOKE THE SAME REMEDY
NOR MORE THAN ONE ATTEMPT WHERE THERE ARE ALTERNATIVE REMEDIES. 
FURTHER, DARR V. BURFORD REQUIRES "ORDINARILY" AN APPLICATION FOR
CERTIORARI TO THE UNITED STATES SUPREME COURT FROM THE STATE'S DENIAL
OF RELIEF.  CF. FRISBIE V. COLLINS, 342 U.S. 519, 520-522.    OF
COURSE, NOTHING WE HAVE SAID SUGGESTS THAT THE FEDERAL HABEAS CORPUS
JURISDICTION CAN DISPLACE A STATE'S PROCEDURAL RULE REQUIRING THAT
CERTAIN ERRORS BE RAISED ON APPEAL.  NORMALLY RIGHTS UNDER THE FEDERAL
CONSTITUTION MAY BE WAIVED AT THE TRIAL, ADAMS V. UNITED STATES EX REL.
MCCANN, 317 U.S. 269, AND MAY LIKEWISE BE WAIVED BY FAILURE TO ASSERT
SUCH ERRORS ON APPEAL.  COMPARE FRANK V. MANGUM, 237 U.S. 309, 343. 
WHEN A STATE INSISTS THAT A DEFENDANT BE HELD TO HIS CHOICE OF TRIAL
STRATEGY AND NOT BE ALLOWED TO TRY A DIFFERENT TACK ON STATE HABEAS
CORPUS, HE MAY BE DEEMED TO HAVE WAIVED HIS CLAIM AND THUS HAVE NO
RIGHT TO ASSERT ON FEDERAL HABEAS CORPUS.  SUCH CONSIDERATIONS OF
ORDERLY APPELLATE PROCEDURE GIVE RISE TO THE CONVENTIONAL STATEMENT
THAT HABEAS CORPUS SHOULD NOT DO SERVICE FOR AN APPEAL.  SEE ADAMS V.
UNITED STATES EX REL. MCCANN, SUPRA, AT 274.  COMPARE SUNAL V. LARGE,
332 U.S. 174, WITH JOHNSON V. ZERBST, 304 U.S. 458, 465-469.  HOWEVER,
THIS DOES NOT TOUCH ONE OF THOSE EXTRAORDINARY CASES IN WHICH A
SUBSTANTIAL CLAIM GOES TO THE VERY FOUNDATION OF A PROCEEDING, AS IN
MOORE V. DEMPSEY, 261 U.S. 86.  CF. EX PARTE LANGE, 18 WALL.  163; EX
PARTE ROYALL, 117 U.S. 241. 

THIRD.  IF THE RECORD OF THE STATE PROCEEDINGS IS NOT FILED, THE
JUDGE IS REQUIRED TO DECIDE, WITH DUE REGARD TO EFFICIENCY IN JUDICIAL
ADMINISTRATION, WHETHER IT IS MORE DESIRABLE TO CALL FOR THE RECORD OR
TO HOLD A HEARING.  ORDINARILY, WHERE THE ISSUES ARE COMPLEX, IT WILL
BE SIMPLER TO CALL FOR THE RECORD, CERTAINLY IN THE FIRST INSTANCE.  IF
THE ISSUES ARE SIMPLE, OR IF THE RECORD IS CALLED FOR AND IS FOUND
INADEQUATE TO SHOW HOW THE STATE COURT DECIDED THE RELEVANT HISTORICAL
FACTS, THE DISTRICT COURT SHALL USE APPROPRIATE PROCEDURES, INCLUDING A
HEARING IF NECESSARY, TO DECIDE THE ISSUES. 

SUCH FLEXIBILITY IN THE INQUIRY INTO THE FACTS IS NECESSARY.  A
PRINTED RECORD REFLECTING ORDERLY PROCEDURE THROUGH THE STATE COURTS
AND SHOWING CLEARLY WHAT HAS HAPPENED IN THE STATE COURTS IS RARELY
AVAILABLE IN THESE CASES.  (FN14)  THE EFFORT AND EXPENSE OF CALLING
FOR A RECORD AND OF HAVING A TRANSCRIPT OF THE PROCEEDINGS PREPARED
MIGHT BE MORE BURDENSOME THAN A SHORT HEARING, ESPECIALLY WHERE THE
QUESTIONS OF FACT ARE SIMPLE AND EASILY SETTLED.  IT SEEMS AN
UNNECESSARY DEFERENCE TO STATE PROCEEDINGS TO SAY THAT THE DISTRICT
JUDGE, REGARDLESS OF THE RELATIVE EXPENSE OF ONE PROCEDURE OR THE
OTHER, MUST ALWAYS CALL FOR EVERYTHING IN THE STATE PROCEEDINGS.  TO
SATISFY REQUIREMENTS OF EXHAUSTION HE WILL WANT TO KNOW ENOUGH TO KNOW
WHETHER THE CLAIM PRESENTED TO HIM WAS PRESENTED IN THE STATE COURTS. 
BUT IF THE CLAIM IS EITHER FRIVOLOUS OR, AT THE OTHER EXTREME,
SUBSTANTIAL AND IF THE FACTS ARE UNDISPUTED, TO CALL FOR THE STATE
RECORD WOULD PROBABLY AVAIL LITTLE.  IF THE CLAIM IS FRIVOLOUS, THE
JUDGE SHOULD DENY THE APPLICATION WITHOUT MORE.  IF THE QUESTION IS ONE
ON WHICH HE MUST EXERCISE HIS LEGAL JUDGMENT UNDER THE HABEAS CORPUS
STATUTE, (FN15) IT MAY BE SUFFICIENT TO HAVE INFORMATION, PERHAPS
PRESENTED BY THE PLEADINGS OF THE APPLICANT OR OF THE STATE, AS TO THE
DISPOSITION OF ANY DISPUTED QUESTIONS OF FACT.  IT SEEMS UNDULY RIGID
TO REQUIRE THE DISTRICT JUDGE TO CALL FOR THE STATE RECORD IN EVERY
CASE. 

MOREOVER, THE KINDS OF STATE ADJUDICATIONS DIFFER.  IN SOME CASES THE
STATE COURT HAS HELD A HEARING AND RENDERED A DECISION BASED ON
SPECIFIC FINDINGS OF FACT; THERE MAY HAVE BEEN REVIEW BY A HIGHER STATE
COURT WHICH HAD BEFORE IT THE PLEADINGS, THE TESTIMONY, OPINIONS AND
BRIEFS ON APPEAL.  IT CERTAINLY WOULD MAKE ONLY FOR BURDENSOME AND
USELESS REPETITION OF EFFORT IF THE FEDERAL COURTS WERE TO REHEAR THE
FACTS IN SUCH CASES.  AT THE OTHER POLE IS THE PERFUNCTORY MEMORANDUM
ORDER DENYING A BADLY DRAWN PETITION AND STATING SIMPLY THAT THE
PETITIONER IS NOT ENTITLED TO RELIEF.  THE DISTRICT JUDGE CANNOT GIVE
THE SAME WEIGHT TO THIS SORT OF ADJUDICATION AS HE DOES TO THE FIRST;
HE HAS NO BASIS FOR EXERCISING THE JUDGMENT THE STATUTE REQUIRES HIM TO
EXERCISE. 

THESE CRITERIA FOR DETERMINING WHEN IT IS PROPER TO HOLD A HEARING
SEEM TO ME APPROPRIATE IN RELATING THE HABEAS CORPUS PROVISIONS TO THE
REALITIES OF THESE CASES.  SECTION 2241 EMPOWERS THE DISTRICT COURTS TO
GRANT WRITS OF HABEAS CORPUS TO PRISONERS IN CUSTODY IN VIOLATION OF
THE FEDERAL CONSTITUTION.  SECTION 2243 COMMANDS THE JUDGE
"ENTERTAINING" AN APPLICATION TO AWARD THE WRIT OR ISSUE AN ORDER TO
SHOW CAUSE "UNLESS IT APPEARS FROM THE APPLICATION THAT THE APPLICANT
...  IS NOT ENTITLED THERETO."  IT SEEMS CLEAR ENOUGH THAT THE WORD
"ENTERTAIN" DOES NOT REFER TO HOLDING A HEARING, AND MR. JUSTICE REED'S
SUGGESTION THAT IT REFERS TO THE DISTRICT COURT'S CONCLUSION THAT A
HEARING IS "PROPER," (FN16) IS UNSATISFYING.  (FN17)  THE PROVISO THAT
NO WRIT OR ORDER NEED BE ISSUED IF THE APPLICATION SHOWS THAT THE
APPLICANT IS NOT ENTITLED THERETO CERTAINLY PERMITS "ENTERTAINING" AND
NEVERTHELESS SUMMARILY DISMISSING FOR FAILURE TO STATE A CLAIM, FAILURE
TO EXHAUST STATE REMEDIES, OR PROOF FROM THE PAPERS THEMSELVES,
INCLUDING THE RECORD OF THE STATE PROCEEDINGS, IF FILED, THAT THERE IS
NO CLAIM.  AT THE SAME TIME, THE COMMAND THAT THE WRIT OR AN ORDER BE
ISSUED IN SOME CASES HARDLY REQUIRES A HEARING IN EVERY SUCH CASE.  AS
IN ANY LITIGATION, THE PLEADINGS MAY SHOW, EITHER SEPARATELY OR TAKEN
TOGETHER, THAT THERE IS NO CLAIM.  IT CAN HARDLY BE CONTENDED THAT BY
"ENTERTAINING" THE APPLICATION TO THE EXTENT OF ISSUING THE WRIT OR AN
ORDER, THE DISTRICT JUDGE COMMITS HIMSELF TO HOLDING A HEARING, IF THE
RETURN TO THE WRIT OR THE ORDER TO SHOW CAUSE SHOWS UNQUESTIONABLY THAT
THE APPLICANT IS NOT ENTITLED TO DISCHARGE.  (FN18) 

FOURTH.  WHEN THE RECORD OF THE STATE COURT PROCEEDINGS IS BEFORE THE
COURT, IT MAY APPEAR THAT THE ISSUE TURNS ON BASIC FACTS AND THAT THE
FACTS (IN THE SENSE OF A RECITAL OF EXTERNAL EVENTS AND THE CREDIBILITY
OF THEIR NARRATORS) HAVE BEEN TRIED AND ADJUDICATED AGAINST THE
APPLICANT.  UNLESS A VITAL FLAW BE FOUND IN THE PROCESS OF ASCERTAINING
SUCH FACTS IN THE STATE COURT, THE DISTRICT JUDGE MAY ACCEPT THEIR
DETERMINATION IN THE STATE PROCEEDING AND DENY THE APPLICATION.  ON THE
OTHER HAND, STATE ADJUDICATION OF QUESTIONS OF LAW CANNOT, UNDER THE
HABEAS CORPUS STATUTE, BE ACCEPTED AS BINDING.  IT IS PRECISELY THESE
QUESTIONS THAT THE FEDERAL JUDGE IS COMMANDED TO DECIDE.  (FN19) 

A STATE DETERMINATION OF THE HISTORICAL FACTS, THE EXTERNAL EVENTS
THAT OCCURRED, MAY HAVE BEEN MADE AFTER HEARING WITNESSES PERHAPS NO
LONGER AVAILABLE OR WHOSE RECOLLECTION LATER MAY HAVE BEEN AFFECTED BY
THE PASSAGE OF TIME OR BY THE FACT THAT ONE JUDICIAL DETERMINATION HAS
ALREADY BEEN MADE.  TO BE SURE, THESE CONSIDERATIONS ARGUE EQUALLY
AGAINST HEARING THE CLAIMS AT ALL LONG AFTER THE FACTS TOOK PLACE.  BUT
CONGRESS, BY MAKING HABEAS CORPUS AVAILABLE, HAS DETERMINED THAT OTHER
CONSIDERATIONS PREVAIL.  WE ARE LEFT TO DEVISE APPROPRIATE RULES, AND
THE CONGRESSIONAL DETERMINATION DOES NOT PRECLUDE RULES RECOGNIZING THE
SOUNDNESS OF GIVING GREAT WEIGHT TO TESTIMONY EARLIER HEARD, JUST AS IT
DOES NOT UNDERMINE THE PRINCIPLE THAT THE BURDEN OF PROVING FACTS
INCONSISTENT WITH JUDICIAL RECORDS IN ALL PROCEEDINGS OF THIS KIND IS
HEAVY. 

FIFTH.  WHERE THE ASCERTAINMENT OF THE HISTORICAL FACTS DOES NOT
DISPOSE OF THE CLAIM BUT CALLS FOR INTERPRETATION OF THE LEGAL
SIGNIFICANCE OF SUCH FACTS, SEE BAUMGARTNER V. UNITED STATES, 322 U.S.
665, 670-671, THE DISTRICT JUDGE MUST EXERCISE HIS OWN JUDGMENT ON THIS
BLEND OF FACTS AND THEIR LEGAL VALUES.  THUS, SO-CALLED MIXED QUESTIONS
OR THE APPLICATION OF CONSTITUTIONAL PRINCIPLES TO THE FACTS AS FOUND
LEAVE THE DUTY OF ADJUDICATION WITH THE FEDERAL JUDGE. 

FOR INSTANCE, THE QUESTION WHETHER ESTABLISHED PRIMARY FACTS
UNDERLYING A CONFESSION PROVE THAT THE CONFESSION WAS COERCED OR
VOLUNTARY CANNOT REST ON THE STATE DECISION.  SEE, E.G., HALEY V. OHIO,
332 U.S. 596, 601 (CONCURRING OPINION) AND STROBLE V. CALIFORNIA, 343
U.S. 181, 190.  AGAIN, POWELL V. ALABAMA, 287 U.S. 45, REPRESENTS THE
SETTLED RULE THAT DUE PROCESS REQUIRES A STATE COURT IN CAPITAL CASES
TO ASSIGN COUNSEL TO THE ACCUSED.  CONSEQUENTLY, A FINDING IN A STATE
COURT OF THE HISTORICAL FACT THAT THE ACCUSED HAD NOT HAD COUNSEL COULD
BE CONSIDERED BINDING BY THE DISTRICT JUDGE, WHO WOULD ISSUE THE WRIT
REGARDLESS OF WHAT CONCLUSION THE STATE COURT HAD REACHED AS TO THE LAW
ON REPRESENTATION BY COUNSEL IN CAPITAL CASES.  IF THE CONVICTION WAS
NOT FOR A CAPITAL OFFENSE, HOWEVER, POWELL V. ALABAMA MAY NOT APPLY,
AND THE CONSIDERATIONS ADVERTED TO IN THAT OPINION AS TO THE NECESSITY
OF COUNSEL IN A PARTICULAR CASE TO ENSURE FUNDAMENTAL FAIRNESS WOULD BE
CONTROLLING.  THE DISTRICT JUDGE WOULD THEN LOOK TO THE STATE
PROCEEDINGS FOR WHATEVER LIGHT THEY SHED ON THE HISTORICAL FACTS SUCH
AS THE AGE AND INTELLIGENCE OF THE ACCUSED, HIS FAMILIARITY WITH LEGAL
PROCEEDINGS, AND THE KIND OF ISSUES AGAINST WHICH HE HAD TO DEFEND
HIMSELF.  CF. JOHNSON V. ZERBST, 304 U.S. 458.  BUT IT IS FOR THE
FEDERAL JUDGE TO ASSESS ON THE BASIS OF SUCH HISTORICAL FACTS THE
FUNDAMENTAL FAIRNESS OF A CONVICTION WITHOUT COUNSEL IN THE
CIRCUMSTANCES.  ALTHOUGH THERE IS NO NEED FOR THE FEDERAL JUDGE, IF HE
COULD, TO SHUT HIS EYES TO THE STATE CONSIDERATION OF SUCH ISSUES, NO
BINDING WEIGHT IS TO BE ATTACHED TO THE STATE DETERMINATION.  THE
CONGRESSIONAL REQUIREMENT IS GREATER.  THE STATE COURT CANNOT HAVE THE
LAST SAY WHEN IT, THOUGH ON FAIR CONSIDERATION AND WHAT PROCEDURALLY
MAY BE DEEMED FAIRNESS, MAY HAVE MISCONCEIVED A FEDERAL CONSTITUTIONAL
RIGHT. 

SIXTH.  A FEDERAL DISTRICT JUDGE MAY UNDER SEC. 2244 TAKE INTO
CONSIDERATION A PRIOR DENIAL OF RELIEF BY A FEDERAL COURT, AND IN THAT
SENSE SEC. 2244 IS OF COURSE APPLICABLE TO STATE PRISONERS.  SECTION
2244 MERELY GAVE STATUTORY FORM TO THE PRACTICE ESTABLISHED BY SALINGER
V. LOISEL, 265 U.S. 224.  WHAT WAS THERE DECIDED AND WHAT SEC. 2244 NOW
AUTHORIZES IS THAT A FEDERAL JUDGE, ALTHOUGH HE MAY, NEED NOT INQUIRE
ANEW INTO A PRIOR DENIAL OF A HABEAS CORPUS APPLICATION IN A FEDERAL
COURT IF "THE PETITION PRESENTS NO NEW GROUND NOT THERETOFORE PRESENTED
AND DETERMINED, AND THE JUDGE OR COURT IS SATISFIED THAT THE ENDS OF
JUSTICE WILL NOT BE SERVED BY SUCH INQUIRY." 

THESE STANDARDS, ADDRESSED AS THEY ARE TO THE PRACTICAL SITUATION
FACING THE DISTRICT JUDGE, RECOGNIZE THE DISCRETION OF JUDGES TO GIVE
WEIGHT TO WHATEVER MAY BE RELEVANT IN THE STATE PROCEEDINGS, AND YET
PRESERVE THE FULL IMPLICATION OF THE REQUIREMENT OF CONGRESS THAT THE
DISTRICT JUDGE DECIDE CONSTITUTIONAL QUESTIONS PRESENTED BY A STATE
PRISONER EVEN AFTER HIS CLAIMS HAVE BEEN CAREFULLY CONSIDERED BY THE
STATE COURTS.  CONGRESS HAS THE POWER TO DISTRIBUTE AMONG THE COURTS OF
THE STATES AND OF THE UNITED STATES JURISDICTION TO DETERMINE FEDERAL
CLAIMS.  IT HAS SEEN FIT TO GIVE THIS COURT POWER TO REVIEW ERRORS OF
FEDERAL LAW IN STATE DETERMINATIONS, AND IN ADDITION TO GIVE TO THE
LOWER FEDERAL COURTS POWER TO INQUIRE INTO FEDERAL CLAIMS, BY WAY OF
HABEAS CORPUS.  SUCH POWER IS IN THE SPIRIT OF OUR INHERITED LAW.  IT
ACCORDS WITH, AND IS THOROUGHLY REGARDFUL OF, "THE LIBERTY OF THE
SUBJECT," FROM WHICH FLOWS THE RIGHT IN ENGLAND TO GO FROM JUDGE TO
JUDGE, ANY ONE OF WHOSE DECISIONS TO DISCHARGE THE PRISONER IS FINAL. 
(FN20) OUR RULE IS NOT SO EXTREME AS IN ENGLAND; SEC. 2244 DOES PLACE
SOME LIMITS ON REPEATING APPLICATIONS TO THE FEDERAL COURTS.  BUT IT
WOULD BE IN DISREGARD OF WHAT CONGRESS HAS EXPRESSLY REQUIRED TO DENY
STATE PRISONERS ACCESS TO THE FEDERAL COURTS. 

THE RELIABLE FIGURES OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS, SUPRA, P. 498, SHOWING THAT DURING THE LAST FOUR YEARS FIVE
STATE PRISONERS, ALL TOLD, WERE DISCHARGED BY FEDERAL DISTRICT COURTS,
PROVE BEYOND PERADVENTURE THAT IT IS A BASELESS FEAR, A BOGEYMAN, TO
WORRY LEST STATE CONVICTIONS BE UPSET BY ALLOWING DISTRICT COURTS TO
ENTERTAIN APPLICATIONS FOR HABEAS CORPUS ON BEHALF OF PRISONERS UNDER
STATE SENTENCE.  INSOFAR AS THIS JURISDICTION ENABLES FEDERAL DISTRICT
COURTS TO ENTERTAIN CLAIMS THAT STATE SUPREME COURTS HAVE DENIED RIGHTS
GUARANTEED BY THE UNITED STATES CONSTITUTION, IT IS NOT A CASE OF A
LOWER COURT SITTING IN JUDGMENT ON A HIGHER COURT.  IT IS MERELY ONE
ASPECT OF RESPECTING THE SUPREMACY CLAUSE OF THE CONSTITUTION WHEREBY
FEDERAL LAW IS HIGHER THAN STATE LAW.  IT IS FOR THE CONGRESS TO
DESIGNATE THE MEMBER IN THE HIERARCHY OF THE FEDERAL JUDICIARY TO
EXPRESS THE HIGHER LAW.  THE FACT THAT CONGRESS HAS AUTHORIZED DISTRICT
COURTS TO BE THE ORGAN OF THE HIGHER LAW RATHER THAN A COURT OF
APPEALS, OR EXCLUSIVELY THIS COURT, DOES NOT MEAN THAT IT ALLOWS A
LOWER COURT TO OVERRULE A HIGHER COURT.  IT MERELY EXPRESSES THE CHOICE
OF CONGRESS HOW THE SUPERIOR AUTHORITY OF FEDERAL LAW SHOULD ASSERTED. 

I YIELD TO NO MEMBER OF THIS COURT IN AWARENESS OF THE ENORMITY OF
THE DIFFICULTIES OF DEALING WITH CRIME THAT IS THE CONCOMITANT OF OUR
INDUSTRIALIZED SOCIETY.  AND I AM DEEPLY MINDFUL OF THE FACT THAT THE
RESPONSIBILITY FOR THIS TASK LARGELY RESTS WITH THE STATES.  I WOULD
NOT FOR A MOMENT HAMPER THEM IN THE EFFECTIVE DISCHARGE OF THIS
RESPONSIBLITY.  EQUALLY AM I AWARE THAT MISUSE OF LEGAL PROCEDURES,
WHEREBY THE ADMINISTRATION OF CRIMINAL JUSTICE IS TOO OFTEN RENDERED
LEADEN-FOOTED, IS ONE OF THE DISTURBING FEATURES ABOUT AMERICAN
CRIMINAL JUSTICE.  ON THE OTHER HAND, IT MUST NOT BE LOST SIGHT OF THAT
THERE ARE ALSO ABUSES BY THE LAW-ENFORCING AGENCIES.  IT DOES NOT
LESSEN THE MISCHIEF THAT IT IS DUE MORE OFTEN TO LACK OF PROFESSIONAL
COMPETENCE AND WANT OF AN AUSTERE EMPLOYMENT OF THE AWFUL PROCESSES OF
CRIMINAL JUSTICE THAN TO WILFUL MISCONDUCT.  IN THIS CONNECTION IT IS
RELEVANT TO QUOTE THE OBSERVATIONS OF ONE OF THE MOST ESTEEMED OF
ATTORNEYS GENERAL OF THE UNITED STATES, WILLIAM D. MITCHELL: 
"DETECTION AND PUNISHMENT OF CRIME MUST BE EFFECTED BY STRICTLY LAWFUL
METHODS.  NOTHING HAS A GREATER TENDENCY TO BEGET LAWLESSNESS THAN
LAWLESS METHODS OF LAW ENFORCEMENT.  THE GREATER THE DIFFICULTIES OF
DETECTING AND PUNISHING CRIME, THE GREATER THE TEMPTATION TO PLACE A
STRAINED CONSTRUCTION ON STATUTES TO SUPPLY WHAT MAY BE THOUGHT TO BE
MORE EFFICIENT MEANS OF ENFORCING LAW.  THE STATUTORY AND
CONSTITUTIONAL RIGHTS OF ALL PERSONS MUST BE REGARDED, AND THEIR
VIOLATION, INADVERTENT OR OTHERWISE, IS TO BE AVOIDED."  (DEPARTMENT OF
JUSTICE RELEASE, FOR APRIL 8, 1929.) 

UNFORTUNATELY, INSTANCES ARE NOT WANTING IN WHICH EVEN THE HIGHEST
STATE COURTS HAVE FAILED TO RECOGNIZE VIOLATIONS OF THESE PRECEPTS THAT
OFFEND THE LIMITATIONS WHICH THE CONSTITUTION OF THE UNITED STATES
PLACES UPON ENFORCEMENT BY THE STATES OF THEIR CRIMINAL LAW.  SEE,
E.G., DE MEERLEER V. MICHIGAN, 329 U.S. 663, AND MARINO V. RAGEN, 332
U.S. 561.  CAN IT REALLY BE DENIED THAT IN BOTH THESE CASES, WHICH
ANTEDATED DARR V. BURFORD, THE UNITED STATES DISTRICT COURTS SITTING IN
ILLINOIS AND MICHIGAN WOULD HAVE BEEN JUSTIFIED IN GRANTING THE WRIT OF
HABEAS CORPUS HAD APPLICATION BEEN MADE FOR IT?  THE TAG THAT AN
INFERIOR COURT SHOULD NOT OVERRIDE A SUPERIOR COURT WOULD NOT HAVE BEEN
A FIT OBJECTION AGAINST THE EXERCISE OF THE JURISDICTION WITH WHICH THE
CONGRESS INVESTED THE DISTRICT COURTS. 

THE UNIQUENESS OF HABEAS CORPUS IN THE PROCEDURAL ARMORY OF OUR LAW
CANNOT BE TOO OFTEN EMPHASIZED.  IT DIFFERS FROM ALL OTHER REMEDIES IN
THAT IT IS AVAILABLE TO BRING INTO QUESTION THE LEGALITY OF A PERSON'S
RESTRAINT AND TO REQUIRE JUSTIFICATION FOR SUCH DETENTION.  OF COURSE
THIS DOES NOT MEAN THAT PRISON DOORS MAY READILY BE OPENED.  IT DOES
MEAN THAT EXPLANATION MAY BE EXACTED WHY THEY SHOULD REMAIN CLOSED.  IT
IS NOT THE BOASTING OF EMPTY RHETORIC THAT HAS TREATED THE WRIT OF
HABEAS CORPUS AS THE BASIC SAFEGUARD OF FREEDOM IN THE ANGLO-AMERICAN
WORLD.  "THE GREAT WRIT OF HABEAS CORPUS HAS BEEN FOR CENTURIES
ESTEEMED THE BEST AND ONLY SUFFICIENT DEFENCE OF PERSONAL FREEDOM." 
MR. CHIEF JUSTICE CHASE, WRITING FOR THE COURT, IN EX PARTE YERGER, 8
WALL.  85, 95.  ITS HISTORY AND FUNCTION IN OUR LEGAL SYSTEM AND THE
UNAVAILABILITY OF THE WRIT IN TOTALITARIAN SOCIETIES ARE NATURALLY
ENOUGH REGARDED AS ONE OF THE DECISIVELY DIFFERENTIATING FACTORS
BETWEEN OUR DEMOCRACY AND TOTALITARIAN GOVERNMENTS. 

THE SIGNIFICANCE OF THE WRIT FOR THE MORAL HEALTH OF OUR KIND OF
SOCIETY HAS BEEN AMPLY ATTESTED BY ALL THE GREAT COMMENTATORS,
HISTORIANS AND JURISTS, ON OUR INSTITUTIONS.  IT HAS APPROPRIATELY BEEN
CHARACTERIZED BY HALLAM AS "THE PRINCIPAL BULWARK OF ENGLISH LIBERTY." 
BUT THE WRIT HAS POTENTIALITIES FOR EVIL AS WELL AS FOR GOOD.  ABUSE OF
THE WRIT MAY UNDERMINE THE ORDERLY ADMINISTRATION OF JUSTICE AND
THEREFORE WEAKEN THE FORCES OF AUTHORITY THAT ARE ESSENTIAL FOR
CIVILIZATION. 

THE CIRCUMSTANCES AND CONDITIONS FOR BRINGING INTO ACTION A LEGAL
REMEDY HAVING SUCH POTENTIALITIES OBVIOUSLY CANNOT BE DEFINED WITH A
PARTICULARITY APPROPRIATE TO LEGAL REMEDIES OF MUCH MORE LIMITED
SCOPE.  TO ATTEMPT RIGID RULES WOULD EITHER GIVE SPURIOUSLY CONCRETE
FORM TO WIDE-RANGING PURPOSES OR BETRAY THE PURPOSES BY STRANGULATING
RIGIDITIES.  EQUALLY UNMINDFUL, HOWEVER, OF THE PURPOSES OF THE WRIT -
ITS HISTORY AND ITS FUNCTIONS - WOULD IT BE TO ADVISE THE FEDERAL
DISTRICT COURT AS TO THEIR DUTY IN REGARD TO HABEAS CORPUS IN TERMS SO
AMBIGUOUS AS IN EFFECT TO LEAVE THEIR INDIVIDUAL JUDGMENT UNGUIDED. 
THIS WOULD LEAVE THEM FREE TO MISUSE THE WRIT BY BEING EITHER TOO LAX
OR TOO RIGID IN ITS EMPLOYMENT.  THE FACT THAT WE CANNOT FORMULATE
RULES THAT ARE ABSOLUTE OR OF A DEFINITENESS ALMOST MECHANICALLY
APPLICABLE DOES NOT DISCHARGE US FROM THE DUTY OF TRYING TO BE AS
ACCURATE AND SPECIFIC AS THE NATURE OF THE SUBJECT PERMITS. 

IT IS INADMISSIBLE TO DENY THE USE OF THE WRIT MERELY BECAUSE A STATE
COURT HAS PASSED ON A FEDERAL CONSTITUTIONAL ISSUE.  THE DISCRETION OF
THE LOWER COURTS MUST BE CANALIZED WITHIN BANKS OF STANDARDS GOVERNING
ALL FEDERAL JUDGES ALIKE, SO AS TO MEAN ESSENTIALLY THE SAME THING TO
ALL AND TO LEAVE ONLY THE MARGIN OF FREEDOM OF MOVEMENT INEVITABLY
ENTAILED BY THE NATURE OF HABEAS CORPUS AND THE INDEFINABLE VARIETY OF
CIRCUMSTANCES WHICH BRING IT INTO PLAY. 

FN1  IN NO. 20, DANIELS V. ALLEN, AFTER SPEAKING OF THE DENIAL OF
CERTIORARI, THE DISTRICT JUDGE FELT IT DIFFICULT TO BELIEVE "THAT ANY
IMPARTIAL PERSON WOULD CONCLUDE IN THE LIGHT OF THE PROCEDURAL HISTORY
OF THIS CASE THAT IT CLEARLY APPEARS THAT PETITIONERS WERE DENIED THE
SUBSTANCE OF A FAIR TRIAL."  HE CONCLUDED THE PETITIONERS HAD HAD A
FAIR TRIAL, THAT THE WRIT SHOULD BE VACATED "BECAUSE NOT AVAILABLE TO
PETITIONERS ON THE PROCEDURAL HISTORY, AND IF SO, THE PETITIONERS ARE
NOT ENTITLED TO DISCHARGE" SINCE THEY DID NOT SUBSTANTIATE THEIR
CHARGES.  DANIELS V. CRAWFORD, 99 F. SUPP. 208, 213, 216.  THE COURT OF
APPEALS STATED THAT IT WAS ONLY NECESSARY TO CONSIDER THE PROPOSITION
THAT PETITIONERS WERE NOT ENTITLED TO THE WRIT IN VIEW OF THE
PROCEDURAL HISTORY OF THE CASE AND AFFIRMED, SAYING THAT PETITIONERS
COULD NOT BY HABEAS CORPUS CIRCUMVENT THE RESULTS OF THEIR FAILURE TO
COMPLY WITH THE STATE PROCEDURAL RULES.  THEIR ALLEGATION OF PECULIAR
HARDSHIP IN ONLY ONE DAY'S DEFAULT IN COMPLYING WITH STATE PROCEDURAL
RULES WAS BEFORE THE SUPREME COURT IN THEIR APPLICATION FOR CERTIORARI
"AND, PROPER RESPECT FOR THAT COURT REQUIRES THAT WE ASSUME THAT, IF IT
HAD THOUGHT THAT SUCH ENFORCEMENT OF THE RULES OF COURT AMOUNTED TO A
DENIAL OF A FAIR HEARING TO MEN CONDEMNED TO DEATH, IT WOULD HAVE
GRANTED CERTIORARI EITHER TO THE SUPREME COURT OF THE STATE OR THE
TRIAL COURT AND WOULD HAVE REVIEWED THE CASE.  THE CASE FALLS SQUARELY,
WE THINK, WITHIN WHAT WAS SAID BY THE SUPREME COURT IN EX PARTE HAWK,
321 U.S. 114, 118,  ...  ."  DANIELS V. ALLEN, 192 F.2D 763, 768, 769. 

IN NO. 22, SPELLER V. ALLEN, THE DISTRICT COURT STATED THAT IT "FELT
STRONGLY DISPOSED TO DENY THE PETITION FOR WRIT OF HABEAS CORPUS SOLELY
ON THE PROCEDURAL HISTORY" BUT DECIDED TO HEAR EVIDENCE ON THE MERITS. 
AFTER HEARING EVIDENCE, THE COURT DISMISSED, "UPON THE PROCEDURAL
HISTORY AND THE RECORD IN THE STATE COURTS, FOR THE REASON THAT HABEAS
CORPUS PROCEEDING IS NOT AVAILABLE TO THE PETITIONER FOR THE PURPOSE OF
RAISING THE IDENTICAL QUESTION PASSED UPON IN THOSE COURTS."  FURTHER,
EVEN IF ENTITLED TO RAISE THE SAME QUESTION, PETITIONER DID NOT
SUBSTANTIATE HIS CLAIMS.  SPELLER V. CRAWFORD, 99 F. SUPP. 92, 95, 97. 
THE COURT OF APPEALS CITED EX PARTE HAWK AND QUOTED FROM ITS OPINION IN
STONEBREAKER V. SMYTH, 163 F.2D 498, 499, TO THE SAME EFFECT AS THE
LANGUAGE IN NO. 20, THAT "PROPER RESPECT" COMPELS THE CONCLUSION THAT
THE SUPREME COURT WOULD HAVE GRANTED CERTIORARI HAD IT THOUGHT
PETITIONER'S CONSTITUTIONAL RIGHTS VIOLATED.  SPELLER V. ALLEN, 192
F.2D 477, 478. 

IN NO. 32, BROWN V. ALLEN, THE DISTRICT COURT RELIED ON STONEBREAKER
V. SMYTH AND DENIED THE WRIT, NOTING THAT PETITIONER HAD APPARENTLY HAD
A FAIR AND IMPARTIAL TRIAL IN THE STATE COURTS AND THAT THE SUPREME
COURT HAD REFUSED TO REVIEW THE STATE COURT ACTION.  BROWN V. CRAWFORD,
98 F. SUPP. 866.   THE COURT OF APPEALS CONSIDERED THE CASE TOGETHER
WITH NO. 22, AND, AS STATED ABOVE, AFFIRMED. 

FN2  AN ATTEMPT TO DETERMINE THE FACTUAL CONTEXT OF A STATISTICALLY
REPRESENTATIVE GROUP OF HABEAS CORPUS APPLICATIONS IS SUMMARIZED IN THE
APPENDIX, POST, P. 514; THE STUDY THERE REPORTED REFLECTS THE
EXAMINATION OF THE 126 SUPREME COURT FILES IN CASES IN WHICH CERTIORARI
WAS DENIED TO STATE PRISONERS DURING THE OCTOBER 1950 TERM AND HABEAS
CORPUS APPLICATIONS SUBSEQUENTLY MADE IN FEDERAL DISTRICT COURTS, AND
EXAMINATION OF MATERIALS OBTAINED IN RESPONSE TO QUESTIONNAIRES SENT TO
THE DISTRICT CLERKS CONCERNING THE APPLICATIONS AND THE DISPOSITIONS OF
THOSE 126 CASES IN THE DISTRICT COURTS. 

FN3  SEE APPENDIX, POST, P. 516.  AS SHOWN THERE, ONLY 13 OF 126
PETITIONS WERE DRAWN BY LAWYERS; OTHERS, OF COURSE, MAY HAVE BEEN DRAWN
BY LAWYERS EITHER IN OR OUT OF PRISON WHO DID NOT CHOOSE TO SIGN THE
PETITION.  BUT OUR EXPERIENCE AFFIRMS THE CONCLUSION SET FORTH IN THE
SURVEY BASED ON ONE TEST OF THE LEGAL ADEQUACY OF THE PETITIONS, THAT
IN A LARGE NUMBER OF CASES, THE PETITIONS MUST BE COMBED THROUGH TO
FIND THE ISSUES, CERTAINLY MUCH MORE SO THAN IS TRUE OF THE ORDINARY
PETITIONS FOR CERTIORARI. 

FN4  SEE APPENDIX, POST, PP. 516-517 AND TABLE 1, POST, PP. 518-519. 
THE FACT THAT WE RARELY DO HAVE SUFFICIENT PAPERS MAY ACCOUNT FOR OUR
DISPUTES, EVEN IN THE CASES WE GRANT, AS TO WHAT HAS HAPPENED BELOW. 
SEE, E.G., UVEGES V. PENNSYLVANIA, 335 U.S. 437.  AT THE VERY LEAST, WE
WOULD WANT TO HAVE THE PETITIONS AND THE ORDERS BELOW, BUT EVEN AS TO
THIS MINIMUM, AS TABLE 1, PART 2 SHOWS (ITEM "A AND C"), IN ONLY 53 OF
THE 114 CASES IN WHICH THE ISSUES WERE RAISED AFTER TRIAL WAS THIS
MINIMUM AVAILABLE TO US. 

FN5  SEE APPENDIX, TABLE 1, PART 2, POST, P. 519. 

FN6  SEE APPENDIX, TABLE 1, PART 1, POST, P. 518. 

FN7  SEE APPENDIX, POST, PP. 525-526. 

FN8  SEE APPENDIX, TABLE 2, POST, P. 523. 

FN9  SEE APPENDIX, COLUMN 3 OF TABLE 1, POST, P. 518. 

FN10  IN 2 CASES OF THE 126 STUDIED, AN ORDER WAS ENTERED IN THIS
COURT RETURNING ORIGINAL PAPERS TO THE PETITIONER.  ALTOGETHER, AMONG
THE 329 APPLICATIONS FOR REVIEW OF STATE DENIALS OF RELIEF TO STATE
PRISONERS IN THE 1950 TERM, 3 SUCH ORDERS WERE ENTERED. 

FN11  HABEAS CORPUS CASES IN THE FEDERAL COURT BROUGHT BY STATE
PRISONERS, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS 4 (DEC.
16, 1952).  SEE ALSO APPENDIX, POST, PP. 526-527 AND ESPECIALLY 526, N.
19, DISCUSSING THE RELUCTANCE OF THE DISTRICT COURT TO GRANT THE ONE
APPLICATION OUT OF THE 126 THERE SURVEYED WHICH WAS GRANTED. 

FN12  THE PROPOSAL HAS NOW BEEN ABANDONED.  SEE REP. JUD.  CONF.,
1947, P. 17.  A SUGGESTION OF MR. JUSTICE BRADLEY ON THE SUBJECT, EX
PARTE BRIDGES, LOC.  CIT.  SUPRA, IS REFLECTED IN THE PROPOSAL OF THE
CONFERENCE OF THE CHIEF JUSTICES OF THE STATES THAT THE FINAL JUDGMENT
OF A STATE'S HIGHEST COURT IN A CRIMINAL PROCEEDING "BE SUBJECT TO
REVIEW OR REVERSAL ONLY BY THE SUPREME COURT OF THE UNITED STATES."  25
STATE GOVERNMENT 249-250 (NOVEMBER 1952). 

FN13  THE APPENDIX SHOWS A WIDE VARIETY OF PROCEDURES USED TO
ACCOMODATE JUDICIAL PROCEEDINGS TO THE NEEDS OF PETITIONERS ILL
EQUIPPED TO STATE WHATEVER CLAIMS THEY MAY HAVE.  SEE APPENDIX, TABLE
4, POST, P. 528, AND POST, P. 527.  BY ANY STANDARD, THE APPLICATIONS
FOR HABEAS CORPUS ARE VERY OFTEN WOEFULLY INADEQUATE TO APPRISE THE
JUDGE OF THE CLAIM.  SEE APPENDIX, POST, PP. 522-523. 

FN14  SEE APPENDIX, TABLE 1, POST, PP. 518-519. 

FN15  SEE PP. 500-501, SUPRA, AND PP. 507-508, POST. 

FN16  OPINION OF MR. JUSTICE REED, SUPRA, P. 461. 

FN17  MR. JUSTICE REED'S CITATION OF WALKER V. JOHNSTON, 312 U.S.
275, TO INDICATE WHAT MIGHT BE A "PROPER" CASE IN WHICH TO HOLD A
HEARING IS PUZZLING, FOR THAT CASE REQUIRES, IN HABEAS CORPUS ACTIONS
BY FEDERAL PRISONERS, THAT A HEARING BE HELD IF THE APPLICATION AND THE
ANSWER OR RETURN TO THE WRIT RAISE A QUESTION OF FACT. 

FN18  THE LANGUAGE OF SEC. 2243, "WHEN THE WRIT OR ORDER IS RETURNED
A DAY SHALL BE SET FOR HEARING  ...  ," HARDLY REQUIRES A HEARING IN
EVERY CASE IN WHICH A WRIT IS ISSUED.  JUST AS THE DISTRICT JUDGE MAY
DENY AN APPLICATION WITHOUT A HEARING IF THE RETURN SHOWS THAT
APPLICANT FAILED TO EXHAUST THE STATE REMEDY - AS HE CERTAINLY MAY DO -
SO MAY HE DISPOSE OF THE CASE WITHOUT A HEARING IF THE RETURN
CONCLUSIVELY SHOWS APPLICANT'S FAILURE TO STATE A CLAIM. 

FN19  SEE PP. 507-508, POST. 

FN20  SEE SECRETARY OF STATE FOR HOME AFFAIRS V. O'BRIEN, 1923 A.C.
603, 610, WHERE THE HOUSE OF LORDS RULED THAT DESPITE THE FACT THAT "IN
TERMS THE WORDS OF SEC. 3 OF THE APPELLATE JURISDICTION ACT OF 1876, 39
& 40 VICT.  380 ARE WIDE ENOUGH TO GIVE AN APPEAL IN SUCH A MATTER AS
THE PRESENT," THE HOUSE OF LORDS HAS NO JURISDICTION TO HEAR AN APPEAL
IN A HABEAS CORPUS CASE THAT WENT IN FAVOR OF "THE LIBERTY OF THE
SUBJECT."  IT IS WORTH NOTING THAT BY THIS DECISION THE HOUSE OF LORDS
APPLIED AND EXTENDED AN EARLIER DECISION OF THE HOUSE OF LORDS (COX V.
HAKES, 15 A.C. 506 (1890)) IN WHICH SO POWERFUL A GROUP OF JUDGES AS
LORD HALSBURY L.C. AND LORDS WATSON, BRAMWELL, HERSCHELL AND MACNAGHTEN
JOINED.  THE TENOR OF THAT DECISION IS SUFFICIENTLY INDICATED BY THE
QUOTATIONS THAT FOLLOW.  LORD HALSBURY WROTE: 

"IN DAYS OF TECHNICAL PLEADING NO INFORMALITY WAS ALLOWED TO PREVENT
THE SUBSTANTIAL QUESTION OF THE RIGHT OF THE SUBJECT TO HIS LIBERTY
BEING HEARD AND DETERMINED.  THE RIGHT TO AN INSTANT DETERMINATION AS
TO THE LAWFULNESS OF AN EXISTING IMPRISONMENT, AND THE TWOFOLD QUALITY
OF SUCH A DETERMINATION THAT, IF FAVOURABLE TO LIBERTY IT WAS WITHOUT
APPEAL, AND IF UNFAVOURABLE IT MIGHT BE RENEWED UNTIL EACH JURISDICTION
HAD IN TURN BEEN EXHAUSTED, HAVE FROM TIME TO TIME BEEN POINTED OUT BY
JUDGES AS SECURING IN A MARKED AND EXCEPTIONAL MANNER THE PERSONAL
FREEDOM OF THE SUBJECT.  IT WAS NOT A PROCEEDING IN A SUIT BUT WAS A
SUMMARY APPLICATION BY THE PERSON DETAINED."  15 A.C., AT 514-515. 
AND THIS IS FROM THE JUDGMENT OF LORD HERSCHELL: 

"NO COURT WAS BOUND BY THE VIEW TAKEN BY ANY OTHER, OR FELT ITSELF
OBLIGED TO FOLLOW THE LAW LAID DOWN BY IT.  EACH COURT EXERCISED ITS
INDEPENDENT JUDGMENT UPON THE CASE, AND DETERMINED FOR ITSELF WHETHER
THE RETURN TO THE WRIT ESTABLISHED THAT THE DETENTION OF THE APPLICANT
WAS IN ACCORDANCE WITH THE LAW.  A PERSON DETAINED IN CUSTODY MIGHT
THUS PROCEED FROM COURT TO COURT UNTIL HE OBTAINED HIS LIBERTY  ...  .
I NEED NOT DWELL UPON THE SECURITY WHICH WAS THUS AFFORDED AGAINST ANY
UNLAWFUL IMPRISONMENT.  IT IS SUFFICIENT TO SAY THAT NO PERSON COULD BE
DETAINED IN CUSTODY IF ANY ONE OF THE TRIBUNALS HAVING POWER TO ISSUE
THE WRIT OF HABEAS CORPUS WAS OF OPINION THAT THE CUSTODY WAS
UNLAWFUL."  ID., AT 527-528. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS. 

WE AGREE WITH MR. JUSTICE FRANKFURTER THAT OUR PREVIOUS DENIAL OF
CERTIORARI IN A CASE SHOULD BE GIVEN NO LEGAL SIGNIFICANCE WHEN AN
APPLICATION FOR A WRIT OF HABEAS CORPUS IN THAT CASE COMES BEFORE A
FEDERAL DISTRICT COURT.  WE ALSO AGREE IN SUBSTANCE WITH THE VIEWS
EXPRESSED IN PART II OF HIS OPINION CONCERNING THE BEARING OF THE
PROCEEDINGS IN THE STATE COURTS UPON THE DISPOSITION OF AN APPLICATION
FOR A WRIT OF HABEAS CORPUS IN THE FEDERAL DISTRICT COURT. 

                         APPENDIX TO OPINION OF

                        MR. JUSTICE FRANKFURTER. 

WITH A VIEW TO FORMULATING WISE PROCEDURES FOR THE EXERCISE OF
FEDERAL HABEAS CORPUS JURISDICTION ON APPLICATIONS BY STATE PRISONERS,
A STUDY WAS MADE OF ALL FEDERAL DISTRICT COURT APPLICATIONS FOR HABEAS
CORPUS BY PRISONERS SERVING SENTENCES IN STATE PRISONS WHOSE PRIOR
APPLICATIONS FOR CERTIORARI TO THE UNITED STATES SUPREME COURT FROM
STATE COURT PROCEEDINGS HAD BEEN DENIED DURING THE OCTOBER 1950 TERM. 
(FN1)  THAT TERM, THE FIRST FOLLOWING THE DECISION IN DARR V. BURFORD,
WAS CHOSEN BECAUSE OF THE GREATER LIKELIHOOD THAT HABEAS CORPUS ACTIONS
INITIATED IN THE DISTRICT COURT FOLLOWING A DENIAL OF CERTIORARI IN
THAT TERM WOULD BE TERMINATED THAN WOULD BE TRUE OF CASES IN WHICH
CERTIORARI IN THE OCTOBER 1950 TERM AND THE NUMBER OF SUBSEQUENT
APPLICATIONS FOR HABEAS CORPUS CAN FAIRLY BE SAID TO BE TYPICAL. 

A LIST OF ALL SUCH PETITIONS FOR CERTIORARI WAS COMPARED WITH LISTS
OF ALL HABEAS CORPUS APPLICATIONS IN THE FEDERAL DISTRICT COURTS FROM
OCTOBER, 1950, UNTIL MAY, 1952.  (FN2)  AS A RESULT, 126 DIFFERENT
PETITIONERS (FN3) WHOSE PETITIONS FOR CERTIORARI OR OTHER COMPARABLE
RELIEF (FN4) FROM STATE DECISIONS WERE DENIED HERE WERE FOUND TO HAVE
BROUGHT SUBSEQUENT PROCEEDINGS (FN5) IN THE FEDERAL DISTRICT COURTS. 
THEREUPON, A QUESTIONNAIRE WAS SENT OUT CONCERNING EACH HABEAS CORPUS
APPLICATION, AND THE ANSWERS TO THOSE QUESTIONNAIRES, TOGETHER WITH A
STUDY OF SUPREME COURT FILES, FORM THE BASIS FOR THE SURVEY. 

THE DATA ARE HERE SET OUT IN CHRONOLOGICAL SEQUENCE AND NOT ARRANGED
WITH RELATION TO THE ISSUES THEY AFFECT.  THE INFORMATION CONCERNING
THE SUPREME COURT PROCEEDINGS IS SET OUT FIRST, IN PART I, AND IN PART
II THAT CONCERNING THE ACTIONS IN THE DISTRICT COURTS. 

             I. PAPERS AND DISPOSITION IN SUPREME COURT.  (FN6) 

A. THE PETITIONS FOR CERTIORARI.  (FN7) 

IN 97 OF THE 126 CASES ONLY THE ORIGINAL OF THE PETITION WAS FILED;
IN THE OTHER 29 CASES, AT LEAST ONE COPY OF THE PETITION WAS FILED, BUT
IN ONLY TWO CASES WERE THERE THE MINIMUM NINE COPIES REQUIRED OF THE
ORDINARY PETITIONS FOR CERTIORARI.  ONE-HALF OF THE PETITIONS CONTAINED
NINE PAGES OR LESS. 

OF THE 126 PETITIONS, 13 WERE SIGNED BY LAWYERS.  IN A CLASSIFICATION
OF THE OTHER PETITIONS ACCORDING TO THE DEGREE OF FAMILIARITY WITH LAW
SHOWN BY THE PETITIONERS, 53 PETITIONS WERE FOUND NOT EVEN TO MEET A
GENEROUS STANDARD REQUIRING ONLY THAT THE PETITIONER INTELLIGIBLY
ALLEGE SOME FACTS AND MAKE SOME MINIMUM ATTEMPT TO CONNECT THOSE FACTS
TO A LEGAL PRINCIPLE, WHETHER OR NOT THE PRINCIPLE WAS VALID OR EVEN
ARGUABLE. 

B. PAPERS FILED IN SUPPORT OF THE PETITION FOR CERTIORARI. 

FOUR OF THE PETITIONERS WHOSE PAPERS ARE STILL ON FILE HERE (FN8)
SUBMITTED OVER 300 PAGES OF PAPERS IN SUPPORT OF THE PETITION FOR
CERTIORARI.  THE OTHER 120 PETITIONERS FILED AN AVERAGE OF UNDER 30
PAGES OF SUPPORTING PAPERS PER CASE. 

FULL RECORDS, THOUGH IN TWO CASES NOT IN DUE FORM, WERE FILED BY THE
PETITIONERS IN EIGHT CASES, WHILE EXCERPTS FROM THE RECORDS BOTH OF THE
TRIAL PROCEEDINGS AND OF THE STATE PROCEEDINGS IN WHICH PETITIONER
ASSAILED THE VALIDITY OF THE TRIAL PROCEEDINGS WERE FILED IN ANOTHER 51
CASES, AS IS SHOWN IN TABLE 1.  NO PAPERS FROM THE RECORD BELOW WERE
FILED IN 24 OF 125 CASES.  AMONG THE EXCERPTS FROM THE RECORDS FILED,
IN 26 CASES A STATE COURT OPINION (FN9) WAS FILED FROM SOME PROCEEDING
IN WHICH THE SAME ISSUES WERE PRESENTED.  THERE WAS NO CITATION TO, OR
FILING OF, AN OPINION OR MEMORANDUM ORDER IN 46 OF THE CASES.  THE
FIRST COLUMN OF TABLE 1 (FN10) SHOWS IN DETAIL WHAT PAPERS FROM THE
RECORD BELOW WERE FILED IN THE SUPREME COURT. 

TABLE 1.  PAPERS FILED IN SUPREME COURT AND COMPARISON WITH PAPERS
FILED IN DISTRICT COURT*

                                         PART 1

                            NUMBER OF CASES    NUMBER OF CASES
DATA ALLEGED TO BE

IN SUPREME COURT   IN DISTRICT COURT*  IN SUPREME COURT* 

I. FILING OF RECORD BELOW. 

TOTAL CASES FOR WHICH DATA AVAILABLE     125  100.0%      123
100.0%      122    100% 

NO PART OF RECORD BELOW FILED             24   19.2        35 28.5
115    94.3 

RECORD BELOW OR EXCERPTS FILED      101   80.8        88     71.5
7     5.7 

FULL RECORD                           8                 6       0 

EXCERPTS FROM BOTH TRIAL AND ATTACK* 46     42                  3 

EXCERPTS FROM TRIAL WHERE NO ATTACK   5   59            3  51
0   3 

EXCERPTS FROM ATTACK ONLY                 36               20      4 

EXCERPTS FROM TRIAL ONLY                   6        17
0 

II.  FILING OF OPINION OR ORDER BELOW. 

TOTAL CASES FOR WHICH DATA AVAILABLE     126         122
122 

OPINION BELOW FILED          26                16                  3 

OPINION BELOW CITED                   3                 4   0 

EXCERPTS FROM OPINION BELOW FILED     1   30  1  21              0
3 

ORDER BELOW, FILED OR QUOTED          50               26
2 

MERE REFERENCE OR LESS TO ORDER BELOW     46               75      3 

NOTHING ALLEGED TO SHOW DISTRICT 

COURT WHAT WAS BEFORE THE SUPREME COURT
  114 

*SEE FOOTNOTE 10, SUPRA, FOR EXPLANATION OF THE TERMS USED IN THE
TABLE.  THE STATISTICS IN THE SECOND AND THIRD COLUMNS ARE DISCUSSED AT
P. 522 ET SEQ., POST. 

TABLE 1.  PAPERS FILED IN DISTRICT COURT AND COMPARISON WITH PAPERS
FILED IN SUPREME COURT - CONTINUED. 

  PART 2

                                   NUMBER OF CASES IN   NUMBER OF
CASES IN   DATA ALLEGED TO

                       SUPREME COURT         DISTRICT COURT  BE IN
SUPREME COURT

                                    TRIAL*   ATTACK*     TRIAL
ATTACK     TRIAL   ATTACK 

III.  PLEADINGS, ORDERS, AND TRANSCRIPTS. 

TOTAL CASES FOR WHICH DATA AVAILABLE     125    114         123
112        122      111 

A. ORDERS OR OPINIONS*                   52     71          47
37          2        4 

B. TRANSCRIPT OF PROCEEDINGS*            18      4          14
3  1        1 

C. MOTIONS OR PETITIONS*                 12  67           5       34
   0        3 

IV.  PLEADINGS, ORDERS, AND TRANSCRIPTS 

BY CASES. 

TOTAL CASES FOR WHICH DATA AVAILABLE     125    114         123
112        122      111 

A, B AND C ABOVE                           7   3           4        2
    0        0 

A ONLY                             40     14          39       18
2        2 

B ONLY 7      0           7        1          1        1 

C ONLY                                   2     11           0
15          0        1 

A AND B      3      1           3        0          0        0 

A AND C                                    2     53           1    17
    0        2 

B AND C           1      0           0        0          0        0 

TOTAL, SOME OF ABOVE PAPERS FILED         62     82          54
53          3        6

       (49.6%) (72.0%)    (43.9%)  (47.3%)     (2.5%)   (5.4%) 

*SEE FOOTNOTE 10, SUPRA, FOR EXPLANATION OF THE TERMS IN THE TABLE. 

C. ISSUES PRESENTED. 

THE ISSUES RAISED BY THE PETITIONERS VARIED FROM SUBSTANTIAL FEDERAL
CLAIMS TO QUESTIONS PURELY OF STATE LAW.  IN A SORTING OF THE PETITIONS
ACCORDING TO THE CLAIM THAT SEEMED THE PRINCIPAL OR MOST SUBSTANTIAL
ONE, TWO OR THREE CLAIMS WERE FOUND TO HAVE BEEN MOST OFTEN ASSERTED AS
THE PRINCIPAL CLAIM:  THE INADEQUACY OF COUNSEL OR REPRESENTATION BY
COUNSEL NOT OF PETITIONER'S CHOOSING WAS CLAIMED AS THE PRINCIPAL ISSUE
IN 14 CASES; IN ANOTHER 14, THE SENTENCES IMPOSED WERE ATTACKED AS
ILLEGAL, EXCESSIVE OR DISCRIMINATORY; IN 10 CASES, A CLAIM WAS MADE
THAT THE PROSECUTING ATTORNEY KNOWINGLY USED PERJURED EVIDENCE OR
SUPPRESSED EVIDENCE.  IN GENERAL, ERRORS IN THE PRELIMINARY PROCEEDINGS
WERE ASSERTED AS THE MAIN CLAIM IN 8 CASES, ERRORS IN THE INDICTMENT OR
INFORMATION IN 7, ERRORS AFFECTING THE PLEAS IN 14, CONCERNING
REPRESENTATION BY COUNSEL IN 31, AFFECTING THE TRIAL INCLUDING
INADMISSIBILITY OF EVIDENCE, PREJUDICE, AND DELAY IN 41, AND ERRORS
SURROUNDING THE SENTENCE IN 17.  MISCELLANEOUS CLAIMS SUCH AN DENIALS
OF A RIGHT TO APPEAL OR TO A POST-TRIAL HEARING AND DEFECTS IN
EXTRADITION PROCEEDINGS TOTALED 8. 

PERHAPS OF MOST SIGNIFICANCE TO THE CENTRAL PROBLEM HERE WAS THE
DISCREPANCY BETWEEN THE CLAIMS MADE IN THE SUPREME COURT AND THOSE MADE
IN THE DISTRICT COURTS.  THIS COMPARISON WILL BE MADE IN PART II,
DEALING WITH THE ISSUES PRESENTED IN THE DISTRICT COURTS.  (FN11) 

D. RESPONSES FILED BY THE STATES, AND FINAL DISPOSITION IN THE
SUPREME COURT. 

TABLE 1, SUPRA, SHOWS WHAT PAPERS WERE FILED BY THE PETITIONERS AND
NOT NECESSARILY ALL THE PAPERS BEFORE THE COURT.  IN 15 OF THE 126
CASES, THE SUPREME COURT, EITHER BECAUSE OF THE SERIOUSNESS OF THE
ALLEGATIONS OR THE INADEQUACY OF THE RECORD AS PRESENTED BY THE
PETITIONER, CALLED FOR A RESPONSE BY THE STATE.  FOURTEEN RESPONSES
WERE FILED IN ACCORDANCE WITH THESE REQUESTS.  IN ADDITION, THE DOCKET
OF THE SUPREME COURT SHOWS THAT RESPONSES WERE FILED BY THE STATE IN
ANOTHER 7 CASES.  IN 10 OF THE 21 RESPONSES IN THESE CASES, ADDITIONAL
PARTS OF THE RECORD NOT ALREADY FILED BY THE PETITIONERS THUS CAME
BEFORE THE COURT, BUT THE ADDITIONS DO NOT SUBSTANTIALLY CHANGE THE
PICTURE PRESENTED IN TABLE 1.  FOR EXAMPLE, TABLE 1, PART 1, SHOWS THAT
IN 30 CASES, THE PETITIONER FILED IN THE SUPREME COURT THE OPINION
BELOW OR EXCERPTS OR CITED THE OPINION; THE STATES FILED THE OPINION
BELOW WITH THEIR RESPONSES IN AN ADDITIONAL 4 CASES.  LIKE
MODIFICATIONS, IN NO INSTANCE EXCEEDING 5 CASES, WOULD BE MADE IN OTHER
OF THE ITEMS IN TABLE 1 IF IT INCLUDED PAPERS FILED BY THE STATE. 

THE DISPOSITION OF THESE CASES IN THE SUPREME COURT IS MARKED
CONTRAST WITH THE DISPOSITION OF ORDINARY PETITIONS FOR CERTIORARI. 
PETITIONS FOR CERTIORARI BY STATE PRISONERS FROM STATE DENIALS OF
RELIEF AND MISCELLANEOUS APPLICATIONS TO THIS COURT ARE ALMOST ALWAYS
FILED IN FORMA PAUPERIS AND CONSTITUTE ABOUT 60% OF ALL PETITIONS IN
FORMA PAUPERIS.  SINCE, AS THIS STUDY INDICATES, THEY ARE ONLY RARELY
FILED BY LAWYERS AND SELDOM ACCOMPANIED BY ADEQUATE RECORDS, THE
DECISION WHETHER TO ENTERTAIN THESE CASES IS NECESSARILY MADE UPON LESS
INFORMATION AND WITH GREATER DISPATCH THAN WITH ORDINARY PETITIONS FOR
CERTIORARI.  A ROUGH INDEX TO THE DISPOSITION OF THESE CASES AS
COMPARED WITH ORDINARY PETITIONS FOR CERTIORARI IS AFFORDED BY
PUBLISHED FIGURES SHOWING THE PROPORTION OF PETITIONS GRANTED.  WHILE
15.2% OF THE ORDINARY PETITIONS FOR CERTIORARI ARE GRANTED, ONLY 4.2%
OF THE IN FORMA PETITIONS AND NO MISCELLANEOUS APPLICATIONS WERE
GRANTED DURING THE 1950 TERM.  (FN12) 

ON AN ASSUMPTION THAT THE CERTIORARI JURISDICTION OF THE SUPREME
COURT ORDINARILY IS NOT TO BE EXERCISED MERELY BECAUSE A DECISION BELOW
MAY BE WRONG, AN ATTEMPT WAS MADE TO INDICATE IN TERMS OF
CONSIDERATIONS AFFECTING THE CERTIORARI JURISDICTION THE SORT OF
QUESTION PRESENTED.  (FN13) QUESTIONS PURELY OF STATE LAW SEEMED TO BE
THE CHIEF CLAIM OF 30 PETITIONS.  QUESTIONS PROBABLY NOT OF SUFFICIENT
GENERAL IMPORTANCE TO WARRANT THE EXERCISE OF THE CERTIORARI
JURISDICTION SEEMED THE CHIEF CLAIMS IN ANOTHER 61 CASES, 44 BECAUSE
THE ISSUE WAS ONE PRIMARILY OF FACT AND 17 BECAUSE THE ISSUE RAISED NO
SUBSTANTIAL ISSUE NOT ALREADY DECIDED BY THE SUPREME COURT.  EIGHTEEN
CASES DEFIED CLASSIFICATION ON THIS BASIS.  THE REMAINING 17 CASES
PRESENTED QUESTIONS OF PRINCIPLE, ALTHOUGH THE MAJORITY EVEN OF THESE
PROBABLY DID NOT PRESENT QUESTIONS OF THE GRAVITY OR GENERAL IMPORTANCE
USUALLY REQUISITE IN OTHER AREAS FOR GRANTING CERTIORARI. 

        II.  PAPERS AND DISPOSITION IN DISTRICT COURT. 

REQUESTS WERE SENT BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS TO THE CLERKS IN ALL DISTRICTS IN WHICH THERE WERE APPLICATIONS
FOR HABEAS CORPUS SUBSEQUENT TO A DENIAL OF CERTIORARI IN THE OCTOBER
1950 TERM.  IN ADDITION TO A REQUEST FOR ALL DOCKET ENTRIES AND ORDERS
OR OPINIONS, THE CLERKS WERE REQUESTED TO SEND COPIES OF ALL PERTINENT
PAPERS FILED IN THE ACTION BY THE APPLICANT OR TO ANSWER A
QUESTIONNAIRE CONCERNING THOSE PAPERS.  IN THE BULK OF THE CASES, THE
ORIGINAL PAPERS OR COPIES OF THEM WERE FORWARDED TO THE ADMINISTRATIVE
OFFICE; THESE PAPERS, TOGETHER WITH THE ANSWERED QUESTIONNAIRES IN THE
OTHER CASES, WERE THE BASIS OF THE FOLLOWING ANALYSIS.    A. THE
APPLICATIONS FOR HABEAS CORPUS. 

THREE APPLICATIONS FOR HABEAS CORPUS HAD BEEN WITHDRAWN AND WERE
UNAVAILABLE; OF THE REMAINING 123, 17 WERE DRAWN BY LAWYERS.  THIRTY
FOUR FAILED TO MEET THE MINIMUM STANDARDS FOR SHOWING SOME DEGREE OF
FAMILIARITY WITH LAW REFERRED TO IN CONNECTION WITH THE PETITIONS FOR
CERTIORARI.  (FN14) OF 122 APPLICATIONS FOR WHICH DATA WERE AVAILABLE,
101 WERE TYPED OR PRINTED.  THE NUMBER OF PAGES RAN SLIGHTLY LESS THAN
IN THE PETITIONS FOR CERTIORARI; (FN15) 67 APPLICATIONS FOR HABEAS
CORPUS CONTAINED 9 PAGES OR LESS, WHILE 56 CONTAINED 10 OR MORE. 

B. SUPPORTING PAPERS FILED:  REFERENCE TO CERTIORARI. 

TABLE 2 BELOW SHOWS TO WHAT DEGREE THE APPLICANT INFORMED THE
DISTRICT COURT OF THE PREVIOUS CERTIORARI PROCEEDINGS, AND DEMONSTRATES
THAT IN ABOUT 10% OF THE CASES THERE WAS NOT EVEN A REFERENCE BY THE
APPLICANT TO THE FACT THAT HE HAD PETITIONED FOR CERTIORARI.  FURTHER,
IN THE LARGE MAJORITY OF CASES, THERE WAS SIMPLY AN ALLEGATION THAT A
PETITION FOR CERTIORARI HAD BEEN FILED AND DENIED.  IN LESS THAN 10% OF
THE CASES DID THE APPLICANT FILE ANY PAPERS WHICH WOULD SERVE TO
INDICATE TO THE DISTRICT COURT WHAT QUESTIONS WERE BEFORE THE SUPREME
COURT. 

    TABLE 2.  FILING OF PETITION FOR CERTIORARI IN DISTRICT COURT
(FN16) 

TOTAL CASES FOR WHICH DATA AVAILABLE                            123
100.0% 

PETITION FOR CERTIORARI FILED: 

CERTIFIED PETITION                   1 

UNCERTIFIED PETITION             10 

EXCERPTS FROM PETITION         1 

TOTAL, PETITION OR EXCERPTS FILED                 12         9.8 

MERE REFERENCE TO DENIAL OF CERTIORARI             98 

NO REFERENCE TO CERTIORARI PROCEEDINGS             13 

TOTAL, NO INFORMATION AS TO CONTENTS OF 

PETITION        111        90.2 

C. SUPPORTING PAPERS FILED:  REFERENCE TO STATE PROCEEDINGS. 

SOMEWHAT FEWER PAPERS, ON A PERCENTAGE BASIS, WERE FILED BY
APPLICANTS IN THE DISTRICT COURTS THAN IN THE SUPREME COURT CONCERNING
THE RECORD IN THE STATE COURTS.  THERE SEEMS NO EXPLANATION FOR THIS
DIFFERENCE.  (FN17)  OF CHIEF SIGNIFICANCE, HOWEVER, WAS THE EXTENT TO
WHICH PAPERS FILED IN THE DISTRICT COURTS WERE ALLEGED TO HAVE BEEN
PRESENTED TO THE SUPREME COURT IN THE PETITION FOR CERTIORARI.  IT IS
CLEAR THAT THE DISTRICT COURTS MAY HAVE LEARNED IN ORAL ARGUMENT OR BY
OTHER MEANS WHETHER THE PAPERS HAD BEEN FILED PREVIOUSLY IN THE SUPREME
COURT, BUT SINCE SUCH INFORMATION WAS THOUGHT IMPOSSIBLE TO OBTAIN, IT
WAS NECESSARY TO LIMIT THE INQUIRY TO ALLEGATIONS THAT THE PAPERS HAD
ALSO BEEN BEFORE THE SUPREME COURT.  THE ALMOST NEGLIGIBLE NUMBER OF
CASES IN WHICH THE PAPERS FILED WERE ALLEGED ALSO TO HAVE BEEN BEFORE
THE SUPREME COURT IS STRIKING.  EVEN IN CASES CONDUCTED THROUGHOUT BY
APPARENTLY COMPETENT COUNSEL, SUCH ALLEGATIONS WERE OFTEN NOT MADE. 
THE FAILURE TO MAKE THESE ALLEGATIONS MAY REFLECT EITHER A FEAR OF
COUNSEL OR APPLICANTS WITHOUT COUNSEL THAT A DEMONSTRATION OF THE
PRESENTATION MADE TO THE SUPREME COURT WOULD PREJUDICE THEIR CASES OR
PERHAPS A FEELING THAT IT IS UNIMPORTANT TO THE DISTRICT JUDGE THAT THE
PAPERS HAD ALSO BEEN BEFORE THE SUPREME COURT.  IN ANY EVENT, IT HAS
NOT BEEN A PRACTICE, APPARENTLY, TO ALLEGE WHAT PAPERS WERE BEFORE THE
SUPREME COURT.  COLUMNS 2 AND 3 OF TABLE 1, SUPRA, SET OUT INFORMATION
EXACTLY PARALLEL TO THAT CONTAINED IN COLUMN 1, WHICH SHOWS WHAT PAPERS
FROM THE STATE PROCEEDINGS WERE FILED IN THE SUPREME COURT.  COLUMN 2
SHOWS THE SAME INFORMATION FOR THE DISTRICT COURT, AND COLUMN 3 SHOWS
HOW MANY OF THE PAPERS BEFORE THE SUPREME COURT AND THEN FILED IN THE
DISTRICT COURT WERE ALLEGED TO HAVE BEEN FILED IN THE SUPREME COURT. 
COMPARISON OF COLUMNS 1 AND 3 SHOWS TO WHAT EXTENT PAPERS ACTUALLY
BEFORE THE SUPREME COURT WERE ALLEGED TO HAVE BEEN THERE.  FOR EXAMPLE,
IN 30 CASES THE SUPREME COURT HAD SOME INFORMATION CONCERNING THE
OPINION IN THE STATE PROCEEDINGS.  THE DISTRICT COURT WAS TOLD,
HOWEVER, THAT THE OPINION HAD BEEN BEFORE THE SUPREME COURT IN ONLY 3
OF THOSE 30 CASES.  COLUMN 2 SHOWS THAT ALTOGETHER THERE WERE 21 CASES
IN WHICH THE DISTRICT COURTS HAD INFORMATION CONCERNING THE OPINION. 

A SYNOPTIC VIEW OF THE COMPARISONS MADE IN TABLE 1 CAN BE HAD BY
COMPARING THE LINE INDICATING THE NUMBER OF CASES IN WHICH THE RECORD
OR EXCERPTS WERE FILED.  THUS, IN OVER 80% OF THE CASES, THE SUPREME
COURT HAD SOME PART OF THE STATE COURT RECORD, WHILE IN JUST OVER 70%
OF THE CASES, THE DISTRICT COURT HAD SOME PART OF THE STATE COURT
RECORD.  IN LESS THAN 6% OF THE CASES WAS THE DISTRICT COURT TOLD BY
ALLEGATION THAT THE PARTS OF THE RECORD BEFORE IT HAD BEEN IN THE
SUPREME COURT. 

D. ISSUES RAISED. 

THE ISSUES RAISED WERE OF COURSE APPROXIMATELY THE SAME AS THOSE
RAISED IN THE SUPREME COURT, WITH ONLY INSUBSTANTIAL VARIATION FROM THE
FIGURES GIVEN ABOVE (FN18) FOR THE TYPES OF CLAIMS RAISED IN THE
SUPREME COURT.  BUT OF SOME SIGNIFICANCE WAS A COMPARISON OF THE CLAIMS
IN THE SUPREME COURT WITH THOSE MADE BY THE SAME PETITIONERS LATER IN
THE DISTRICT COURTS.  IN THE 125 CASES FOR WHICH DATA WERE AVAILABLE,
THE CHIEF CLAIM MADE IN THE SUPREME COURT WAS ALSO THE CHIEF CLAIM MADE
IN THE DISTRICT COURT IN 105 CASES.  THAT NUMBER, OF COURSE, IS SUBJECT
TO SOME SUBJECTIVE ERROR BECAUSE OF POSSIBLY DIFFERING INTERPRETATIONS
OF WHAT THE CHIEF CLAIM OF AN UNCLEAR AND UNLAWYERLIKE PETITION IS.
PERHAPS MORE SIGNIFICANT ARE SUMMARIES MADE WHICH SHOW THAT THE CLAIM
THAT WAS CONSIDERED THE CHIEF CLAIM IN THE SUPREME COURT REAPPEARED,
BUT NOT NECESSARILY AS THE CHIEF CLAIM, IN 107 OF THE DISTRICT COURT
CASES; CONVERSELY, IN 117 CASES, THE CHIEF CLAIM BEFORE THE DISTRICT
COURT HAD BEEN RAISED IN THE SUPREME COURT PETITION.  THESE DATA
INDICATE ONLY THAT IT CANNOT ALWAYS BE ASSUMED THAT EVEN ON THE RECORD
AND IN THE SAME COURSE OF PROCEEDINGS, THE EMPHASIS ON VARIOUS CLAIMS
RAISED WILL BE THE SAME.  FURTHER, IN SOME CASES, THE CLAIMS RAISED IN
THE DISTRICT COURTS MAY NOT HAVE BEEN MADE AT ALL IN THE SUPREME
COURT. 

E. DISPOSITION OF THE CASES IN THE DISTRICT COURTS. 

IN ONLY 1 CASE OF THE 126 WAS THE WRIT OF HABEAS CORPUS GRANTED.  THE
DISTRICT COURT HAD ORIGINALLY DENIED THE APPLICATION FOR THE WRIT
BECAUSE OF A RELUCTANCE TO REVIEW AN APPLICATION ALREADY PASSED ON BY
THE HIGHEST STATE COURT, BUT AFTER REVERSAL ON APPEAL, (FN19) THE WRIT
WAS GRANTED.  IN 120, THE APPLICATION FOR THE WRIT HAS BEEN DENIED, AND
5 ARE STILL PENDING, 1 ON REMAND FROM APPEAL.  TABLE 3 SETS OUT THE
EXTENT TO WHICH APPEAL TO THE COURT OF APPEALS HAS BEEN SOUGHT OR
TAKEN.  IT SHOWS THAT THERE HAVE BEEN DECISIONS ON APPEAL IN 14 CASES
WITH REVERSALS IN 3.  OF THOSE 3 CASES REVERSED AND REMANDED, ONE IS
PENDING, IN ONE THE WRIT HAS BEEN GRANTED AND IN THE THIRD THE
APPLICATION WAS WITHDRAWN. 

             TABLE 3.  APPEAL FROM DISTRICT COURT DECISIONS 

TOTAL CASES FOR WHICH DATA AVAILABLE
   126 

NO ENTRIES AS TO APPEAL ON DISTRICT COURT DOCKET   66 

CERTIFICATE OF PROBABLE CAUSE DENIED, OR LEAVE TO APPEAL IN FORMA 

PAUPERIS DENIED                                 29 

APPEAL DISMISSED; MANDAMUS DISMISSED
     5 

APPEAL PENDING                 8 

AFFIRMED ON APPEAL                                       11 

REVERSED AND REMANDED ON APPEAL
     3 

A VARIETY OF PROCEDURES WERE ADOPTED IN THESE CASES BY THE DISTRICT
COURTS IN DEALING WITH THE APPLICATIONS.  CHIEF AMONG THE ORDERS
ENTERED OTHER THAN TO DISMISS THE APPLICATIONS WITHOUT MORE WERE ORDERS
TO SHOW CAUSE OR TO ANSWER, AS TABLE 4 SHOWS.  IN 23 CASES, A LAWYER
WAS APPOINTED EITHER AS AN AMICUS OR AS COUNSEL FOR THE APPLICANT.  IN
SOME CASES, THE WRIT OF HABEAS CORPUS WAS ISSUED TO BRING THE APPLICANT
BEFORE THE COURT.  TABLE 4 SHOWS WHICH OF THE DEVICES WERE USED AND IN
WHAT COMBINATIONS. 

              TABLE 4.  PROCEDURES USED IN DISPOSING OF
APPLICATIONS 

TOTAL CASES FOR WHICH DATA AVAILABLE
123       100.0% 

APPLICATIONS DISPOSED OF WITHOUT MORE
56      45.6% 

ORDERS TO SHOW CAUSE OR ANSWER: 

ORDER TO SHOW CAUSE                                         37 

ORDER TO SHOW CAUSE; COUNSEL APPOINTED 

FOR APPLICANT                                  4 

ORDER TO ANSWER                                      3 

ORDER TO ANSWER; AMICUS APPOINTED                            3 

WRITS OF HABEAS CORPUS ISSUED: 

WRIT ISSUED                  2 

WRIT ISSUED; COUNSEL APPOINTED FOR APPLICANT                 3 

WRITS AND ORDERS: 

WRIT ISSUED; ORDER TO SHOW CAUSE                             1 

WRIT ISSUED; ORDER TO SHOW CAUSE; COUNSEL 

APPOINTED FOR APPLICANT                                   5 

LAWYERS APPOINTED: 

AS AMICUS, IN COMBINATION WITH OTHER ORDERS 

ALREADY LISTED ABOVE                                       (3) 

AS COUNSEL FOR APPLICANT, IN CONNECTION WITH 

OTHER ORDERS ALREADY LISTED ABOVE                         (12) 

AS AMICUS WITHOUT OTHER ORDER                                2 

AS COUNSEL FOR APPLICANT WITHOUT OTHER 

ORDER                         6 

A HEARING OF SOME KIND WAS GIVEN IN 44 CASES OF THE 122 FOR WHICH
DATA ARE AVAILABLE.  (FN20)  THE OTHER 22 CASES NOT DISPOSED OF WITHOUT
MORE WERE DISPOSED OF BY WITHDRAWAL OF THE APPLICATION (ONE CASE) OR
AFTER THE ANSWER, THE REPORT OF THE AMICUS, OR BOTH.  CERTAIN DATA
CONCERNING THE HEARINGS ARE SET OUT IN TABLE 5.  TABLE 5 SHOWS WHAT
PROCEDURES WERE USED AND HOW LONG THE HEARING LASTED.  IT SHOWS THAT
THE APPLICANT WAS PRESENT AT 26 HEARINGS, WITH COUNSEL ALSO IN 17 OF
THOSE CASES.  THE APPLICANT WAS REPRESENTED BY COUNSEL IN 31 CASES, BUT
THE APPLICANT HIMSELF WAS NOT PRESENT IN 14 OF THOSE 31 CASES.  THE
LENGTH OF THE HEARINGS FOR WHICH DATA WERE AVAILABLE WAS AN HOUR OR
LESS IN TWO-THIRDS OF THE CASES. 

         TABLE 5.  PRESENCE AT HEARING AND LENGTH OF HEARING 

I. TOTAL CASES IN WHICH HEARINGS HELD                     44 

DATA UNAVAILABLE                                             1 

APPLICANT AND COUNSEL PRESENT    17 

APPLICANT PRESENT WITHOUT COUNSEL                            9 

APPLICANT ABSENT BUT REPRESENTED BY COUNSEL (FN21)
    14 

APPLICANT ABSENT AND NOT REPRESENTED BY COUNSEL           3 

II.  TOTAL CASES FOR WHICH DATA AS TO LENGTH OF HEARING AVAILABLE. 
(FN22)     24 

LENGTH OF HEARING: 

FIFTEEN MINUTES OR LESS                 2 

FIFTEEN TO THIRTY MINUTES                                        8 

THIRTY MINUTES TO ONE HOUR
     6 

TOTAL, ONE HOUR OR LESS                      16 

TWO HOURS                                              1 

TWO AND A HALF HOURS      1 

THREE HOURS                             1 

FOUR HOURS                                                    4 

THREE DAYS            1 

TOTAL, OVER ONE HOUR                                   8 

THE AVERAGE TIME OF DISPOSITION OF APPLICATIONS FOR HABEAS CORPUS IN
THE DISTRICT COURTS WAS 59.4 DAYS, (FN23) AS COMPARED WITH THE
DISPOSITION TIME IN THE SUPREME COURT OF 52.5 DAYS.  IN THE DISTRICT
COURT, HOWEVER, ONLY 56 APPLICATIONS WERE DISMISSED WITHOUT MORE, WHILE
IN THE SUPREME COURT ALL BUT 35, OR 91 PETITIONS FOR CERTIORARI, WERE
DISPOSED OF WITHOUT FURTHER ACTION SUCH AS THE FILING OF A RESPONSE BY
THE STATE.  FOR WHATEVER SIGNIFICANCE IT MIGHT HAVE, THE IMPORTANT
FIGURE SEEMED TO BE THAT SHOWING THE NUMBER OF CASES IN WHICH THE
DISTRICT COURT DISPOSITION TIME WAS GREATER THAN IN THE SUPREME COURT;
OF THE 122 CASES FOR WHICH FIGURES ARE AVAILABLE, 45 TOOK LONGER FROM
THE TIME OF FILING UNTIL DENIAL OF THE APPLICATION FOR HABEAS CORPUS
THAN THEY HAD IN THE SUPREME COURT.  OF THOSE 45, ONLY 4 HAD BEEN
DISMISSED WITHOUT FURTHER PLEADINGS OR ACTION OF SOME SORT. 

IN 98 CASES, THE DISTRICT COURTS INDICATED THEIR REASONS FOR DENYING
THE APPLICATIONS FOR HABEAS CORPUS.  AS WILL BE SEEN FROM TABLE 6, THE
DISTRICT COURTS DECIDED ONLY ABOUT HALF OF THE CASES DIRECTLY ON THE
MERITS, EITHER HOLDING AGAINST THE APPLICANT ON THE FACTS OR ON HIS
CONSTITUTIONAL CLAIM.  IN 45, OR ALMOST HALF, OF THE 98 CASES, THE
APPLICATION WAS DENIED ON VARIOUS GROUNDS BEARING ON THE RELATION
BETWEEN THE FEDERAL AND STATE COURTS IN THESE CASES.  TWENTY-NINE OF
THESE 45 DENIALS WERE BASED ON THE APPLICANT'S FAILURE TO EXHAUST THE
STATE REMEDY.  SINCE THIS REASON WAS OFTEN NOT AMPLIFIED, IT IS NOT
POSSIBLE TO CLASSIFY THESE CASES FURTHER.  BUT FROM THOSE CASES IN
WHICH A MORE DETAILED STATEMENT OF THE REASON WAS MADE AND FROM OTHER
INFORMATION AVAILABLE IN SOME CASES, IT IS POSSIBLE TO SAY THAT THERE
WERE SEVERAL VIEWS BELOW AS TO WHAT THE REQUIREMENT OF "EXHAUSTION"
IMPLIED.  IN SOME CASES, THE APPLICANT HAD NOT COMPLIED WITH FORMAL
REQUIREMENTS, SUCH AS THOSE PRESCRIBING THE TIME OF FILING OR THE KIND
OF PAPERS TO BE FILED FOR AN APPEAL TO A HIGHER STATE COURT.  IN
OTHERS, THE APPLICANT HAD FULLY INVOKED ONE REMEDY, BUT OTHER STATE
REMEDIES WERE STILL AVAILABLE, OR THE REMEDY ALREADY INVOKED WAS, UNDER
THE STATE PROCEDURAL RULES, AVAILABLE AGAIN.  IN SOME CASES, OF COURSE,
THE APPLICANT FAILED TO ALLEGE OR SHOW ANY REAL ATTEMPT TO INVOKE A
STATE REMEDY.  THE OTHER 16 OF THE 45 CASES NOT DECIDED DIRECTLY ON THE
MERITS WERE DISPOSED OF AS THE RESULT OF VARYING DEGREES OF RELIANCE ON
THE STATE ADJUDICATION.  AS TABLE 6 SHOWS, IN SOME CASES THE JUDGES
BELOW STATED THAT THE APPLICANT HAD HAD HIS DAY IN THE STATE COURTS AND
THE FEDERAL COURTS WILL NOT ORDINARILY REEXAMINE STATE DENIALS OF
RELIEF TO PRISONERS, WHILE IN OTHERS THEY FELT THAT THE CLAIM HAD BEEN
FAIRLY CONSIDERED IN THE STATE COURTS. 

TABLE 6.  GROUNDS FOR DENIAL OF APPLICATIONS IN DISTRICT COURTS 

TOTAL CASES IN SURVEY                 126 

PENDING                            5 

WRIT GRANTED                                     1 

TOTAL CASES FOR WHICH DATA AVAILABLE                            120 

I. REASONS STATED FOR DISMISSAL. 

REASONS NOT GOING DIRECTLY TO THE MERITS: 

ISSUE FAIRLY CONSIDERED IN STATE COURT            7 

APPLICANT HAD HIS DAY IN STATE COURT, AND FEDERAL 

COURTS WILL NOT ORDINARILY REEXAMINE            9 

FAILURE TO EXHAUST STATE REMEDY                    29 

TOTAL                                       45 

REASONS GOING DIRECTLY TO THE MERITS: 

WANT OF A FEDERAL QUESTION                           21 

APPLICANT NOT WITHIN INVOKED FEDERAL DOSTRINE (FN24)              8 

CLAIM NOT SUPPORTED BY FACTS                                     17 

INSUFFICIENT FACTS ALLEGED IN SUPPORT OF CLAIM                    2 

TOTAL          48 

MISCELLANEOUS: 

APPLICATION WITHDRAWN BY APPLICANT                                3 

LACK OF JURISDICTION - WRONG DISTRICT                             1 

SAME ISSUE FORMERLY CONSIDERED IN A FEDERAL COURT                 1 

TOTAL             5 

NO REASON STATED EXCEPT THAT APPLICANT NOT ENTITLED TO 

WRIT, OR LACK OF JURISDICTION TO GRANT                 22 

II.  PROBABLE REASONS WHERE NO REASON STATED. 

ISSUE FAIRLY CONSIDERED IN STATE COURT              1 

WANT OF A FEDERAL QUESTION                      18 

APPLICANT NOT WITHIN INVOKED FEDERAL DOCTRINE                     1 

CLAIM NOT SUPPORTED BY THE FACTS                                  2 

FN1  INCLUDED WERE CASES FILED EARLIER BUT CONTINUED INTO THE OCTOBER
1950 TERM; CASES FILED IN THE OCTOBER 1950 TERM BUT CONTINUED INTO
LATER TERMS WERE EXCLUDED. 

FN2  IN ALL THIS WORK WE HAVE HAD THE READY COOPERATION OF THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MORE PARTICULARLY OF
WILL SHAFROTH, ESQ., ORIN S. THIEL, ESQ., AND JOSEPH F. SPANIOL, JR.,
ESQ., AND OF THE CLERKS OF THE UNITED STATES DISTRICT COURTS.  NOR
SHOULD THE IMPORTANT SHARE THAT DONALD T. TRAUTMAN, ESQ., HAD IN
CARRYING OUT THIS STUDY GO UNMENTIONED. 

FN3  EXCLUDING EIGHT PETITIONERS WHO WERE CODEFENDANTS WITH OTHER
PETITIONERS AND WHO PRESENTED THE SAME ISSUES AS THOSE OTHER
PETITIONERS.  IN ALL, 134 PETITIONERS APPEARED AGAIN IN THE DISTRICT
COURTS, BUT IN ONLY 126 SEPARATE CASES.  THE WORDS "CASE" AND
"PETITIONER" WILL BOTH BE USED IN REFERENCE TO THE 126 CASES; WHEN
"PETITIONER" OR "APPLICANT" IS USED, IT SHOULD BE READ AS ONE OR MORE
PRISONERS PRESENTING THE SAME CLAIM ARISING OUT OF THE SAME TRIAL.  FOR
CLARITY, THE PRISONERS WILL BE REFERRED TO AS "PETITIONERS" FOR
CERTIORARI IN THE SUPREME COURT AND "APPLICANTS" FOR HABEAS CORPUS IN
THE DISTRICT COURTS. 

FN4  CASES IN WHICH PETITIONERS IN THE SUPREME COURT SOUGHT ORIGINAL
HABEAS CORPUS OR MANDAMUS OR OTHER RELIEF HAVE BEEN INCLUDED IN THIS
STUDY, UNLESS FEDERAL DISTRICT COURT RELIEF HAD ALREADY BEEN INVOKED SO
THAT THE HABEAS CORPUS APPLICATION COULD NOT BE INTERPRETED AS
REVIEWING A STATE COURT DETERMINATION.  PETITIONS FOR CERTIORARI OR
APPLICATIONS FOR OTHER RELIEF IN THE SUPREME COURT WERE NOT INCLUDED IF
DISMISSED ON MOTION OF THE PETITIONERS. 

FN5  IN CASES WHERE TWO OR MORE PETITIONS FOR CERTIORARI WERE MADE BY
A SINGLE PETITIONER DURING THE OCTOBER 1950 TERM, THAT CASE WAS
ANALYZED WHICH PRESENTED THE ISSUE OR THE COURSE OF PROCEEDINGS LATER
PRESENTED IN THE DISTRICT COURT.  WHERE SEVERAL APPLICATIONS FOR HABEAS
CORPUS HAVE BEEN MADE IN THE DISTRICT COURTS, THAT APPLICATION NEAREST
IN TIME TO THE DENIAL OF CERTIORARI WAS USED, UNLESS (A) THE FIRST
APPLICATION WAS REJECTED FOR FORMAL DEFECTS, SUCH AS FAILURE TO ALLEGE
EXHAUSTION OF STATE REMEDIES OR FAILURE TO SET OUT CLEARLY THE COURSE
OF THE PROCEEDINGS, AND THE SECOND APPLICATION CORRECTED THOSE DEFECTS;
OR (B) THE SECOND (OR A LATER) APPLICATION, UNLIKE THE FIRST, PRESENTED
THE ISSUE OR THE COURSE OF PROCEEDINGS WHICH THE SUPREME COURT WAS
ASKED TO REVIEW.   IN A FEW INSTANCES, THE PROCEEDINGS ARE SO TANGLED
THAT IT WAS IMPOSSIBLE TO APPLY THESE CRITERIA; THUS, ALTHOUGH
ORDINARILY A CASE WAS EXCLUDED IF STATE RELIEF WAS SOUGHT AFTER THE
DENIAL OF CERTIORARI BUT BEFORE THE APPLICATION IN THE FEDERAL DISTRICT
COURT FOR HABEAS CORPUS, OCCASIONALLY SUCH A CASE WAS INCLUDED IF THE
ISSUE OR COURSE OF PROCEEDINGS WAS THE SAME IN THE DISTRICT COURT AS IN
THE SUPREME COURT. 

FN6  EVERY FILE IN THE 126 CASES SURVEYED WAS STUDIED; THE DATA IN
THE FOLLOWING SECTIONS ARE THOSE REVEALED BY THE FILES.  IT
OCCASIONALLY OCCURRED THAT PARTICULAR DATA WERE UNAVAILABLE.  FOR THAT
REASON, WHEREVER TABLES ARE PRESENTED, THE TOTAL NUMBER OF CASES FOR
WHICH THE DATA WERE AVAILABLE IS INDICATED AT THE TOP OF THE TABLE. 

FN7  SEE FOOTNOTE 3 ABOVE. 

FN8  IN TWO CASES, AT LEAST SOME OF THE SUPREME COURT PAPERS WERE
RETURNED TO THE PETITIONER. 

FN9  AS THERE IS NO BRIGHT LINE BETWEEN ORDERS AND OPINIONS, ANY
ORDER CONTAINING MORE THAN A PERFUNCTORY STATEMENT IN GENERAL TERMS
THAT THE RELIEF SOUGHT WAS DENIED IS CLASSIFIED AS AN OPINION. 

FN10  THE TABLE DOES NOT PURPORT TO SHOW ALL THE PAPERS FILED IN THE
SUPREME COURT, BUT ONLY THOSE FILED BY THE PETITIONER, BECAUSE SUCH
FIGURES GIVE A BETTER INDEX OF THE LACK OF TECHNICAL COMPETENCE OF THE
PETITIONERS AND THEIR INABILITY, OFTEN, BECAUSE OF PRISON CONFINEMENT,
TO PREPARE ALL THE PAPERS.  AT P. 521, POST, THE INSUBSTANTIAL CHARGE
EFFECTED IN THESE FIGURES BY THE RESPONSES FILED BY THE STATE IS
DISCUSSED. 

THE TERMS "TRIAL PROCEEDINGS" OR "TRIAL" ARE USED TO DENOTE BOTH THE
TRIAL IN WHICH PETITIONER WAS CONVICTED AND DIRECT APPEAL FROM THE
CONVICTION.  THE TERMS "ATTACKING PROCEEDINGS" OR "ATTACK" INCLUDE ALL
ACTIONS SUCH AS HABEAS CORPUS, CORAM NOBIS, AND OTHER POST-CONVICTION
REMEDIES IN THE STATE COURTS TO OBTAIN RELIEF FROM AN INVALID
CONVICTION.  DELAYED MOTIONS FOR NEW TRIAL HAVE BEEN TREATED FOR
PURPOSES OF THESE TABLES AS ATTACKING PROCEEDINGS. 

"ORDERS OR OPINIONS" IN PART 2 OF THE TABLE INCLUDES, AS TO THE TRIAL
PROCEEDINGS, THE JUDGMENT OF CONVICTION, THE SENTENCE OR OTHER
CONVICTION PAPERS, AS WELL AS, FOR EXAMPLE, AN ORDER OR OPINION ON
DIRECT APPEAL.  AS TO TRIAL AND ATTACKING PROCEEDINGS, EVEN THE
PERFUNCTORY ORDER DISCUSSED IN FOOTNOTE 9 WAS INCLUDED. 

"TRANSCRIPT OF PROCEEDINGS" OR "TRANSCRIPT" IS USED TO DENOTE A
STENOGRAPHIC REPORT OF THE TESTIMONY OR HEARINGS.  ADEQUATE EXCERPTS
FROM SUCH TRANSCRIPTS ARE INCLUDED. 

"MOTIONS OR PETITIONS" IS USED TO DENOTE ANY PLEADINGS BY EITHER
PARTY. 

IN 11 CASES, THERE WERE NO ATTACKING PROCEEDINGS.  HENCE THE TOTAL
NUMBER OF SUPREME COURT CASES IN PART 2 OF TABLE 1 IS 114 RATHER THAN
125. 

FN11  SEE PP. 525-526, POST. 

FN12  SEE REPORT OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 1951
- ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS 1951, 78. 

FN13  SEE RULES SUP. CT. 38(5), 38 1/2. 

FN14  SEE P. 516, SUPRA. 

FN15  SEE P. 516, SUPRA. 

FN16  THESE FIGURES REFLECT ONLY THE INFORMATION OR PAPERS FILED BY
THE APPLICANT AND NOT ANY INFORMATION OR PAPERS FILED BY THE STATE OR
GIVEN THE DISTRICT JUDGE IN ORAL ARGUMENT.  HOWEVER, IT CAN FAIRLY BE
ASSERTED THAT AT LEAST IN THOSE CASES WHERE THE ENTIRE FILES OF THE
DISTRICT COURT WERE SENT IN RESPONSE TO THE QUESTIONNAIRES, THE
PLEADINGS OF THE STATE ONLY OCCASIONALLY REFERRED TO THE DENIAL OF
CERTIORARI AND ALMOST NEVER GAVE ANY INFORMATION CONCERNING THE
PETITION OR THE PAPERS FILED IN THE SUPREME COURT. 

FN17  IN A FEW CASES, THE DISTRICT CLERKS MAY NOT HAVE GIVEN THE
REQUESTED INFORMATION IN SUFFICIENT DETAIL.  HOWEVER, IN ALL CASES
WHERE ANY SUCH DEFICIENCY WAS APPARENT, SECOND REQUESTS FOR INFORMATION
WERE SENT OUT AND ANSWERS RECEIVED, SO THAT ONLY THOSE CASES WHERE THE
DEFICIENCY WAS NOT APPARENT WOULD BE IN ERROR.  FROM THE EXCELLENCE OF
THE RESPONSE IN MOST CASES TO THE QUESTIONNAIRES, IT SEEMS UNLIKELY
THAT WHATEVER ERROR ARISES FROM CASES IN WHICH THE DEFICIENCY OF THE
ANSWERS WAS NOT APPARENT COULD ACCOUNT FOR THE DISCREPANCIES IN THE
FIGURES. 

FN18  SEE P. 520, SUPRA. 

FN19  ANDERSON V. EIDSON, 191 F.2D 989.  A LETTER FROM THE OFFICE OF
THE JACKSON COUNTY SHERIFF, KANSAS CITY, MISSOURI, TO MR. WILL
SHAFROTH, CHIEF OF THE DIVISION OF PROCEDURAL STUDIES AND STATISTICS,
ADVISES THAT THE APPLICANT WAS REMANDED TO THE CUSTODY OF THE SHERIFF
AND THE CASE WAS DISMISSED BY THE JACKSON COUNTY PROSECUTOR FOR LACK OF
AVAILABLE WITNESSES ON DECEMBER 6, 1951, ABOUT ONE AND ONE-HALF YEARS
AFTER APPLICANT HAD FIRST RAISED THE CLAIM IN THE STATE COURTS.  HE HAD
PRESENTED HIS CLAIM TO TWO STATE COURTS, THE UNITED STATES SUPREME
COURT, THE FEDERAL DISTRICT COURT, AND THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT, WHICH REVERSED A REFUSAL BELOW TO GRANT A HEARING AND
REMANDED.  THE DISCHARGE OF THE PRISONER OCCURRED ALMOST 20 YEARS AFTER
HIS ARREST AND CONVICTION ON A PLEA OF GUILTY ON SEVERAL UNRELATED
COUNTS, ONE OF THEM CAPITAL. 

FN20  IN SOME CASES, IT WAS DIFFICULT TO DETERMINE FROM THE DOCKET
ENTRIES WHETHER A HEARING HAD BEEN HELD.  A PROCEDURE WAS CONSIDERED A
HEARING IF AT LEAST ONE PARTY, THE STATE OR THE APPLICANT, HAD APPEARED
IN COURT AND ARGUED POINTS OF LAW OR FACT TO THE COURT, IN ADDITION TO
ALL PROCEDURES RESULTING IN DOCKET ENTRIES STATING THAT A HEARING HAD
BEEN HELD. 

FN21  INCLUDING ONE CASE IN WHICH COUNSEL WAS PRESENT BUT IN WHICH IT
DOES NOT APPEAR WHETHER APPLICANT WAS PRESENT. 

FN22  IN TWO OF THE CASES IN WHICH THERE WAS NO INFORMATION AS TO THE
LENGTH OF THE HEARING, THERE IS INFORMATION CONCERNING THE LENGTH OF
THE TRANSCRIPT MADE BY THE COURT STENOGRAPHER.  IN ONE, IT WAS 20
PAGES; IN THE OTHER 46.  IN FIVE CASES FOR WHICH INFORMATION WAS
AVAILABLE AS TO THE LENGTH OF THE HEARING, DATA WERE ALSO GIVEN SHOWING
THE LENGTH OF THE TRANSCRIPT.  ONE OF THE HEARINGS LASTING ONE HOUR HAD
A TRANSCRIPT OF 36 PAGES.  THE HEARING LASTING THREE HOURS HAD A
TRANSCRIPT OF 15 PAGES.  ONE OF THE HEARINGS LASTING FOUR HOURS HAD A
TRANSCRIPT OF 28 PAGES, ANOTHER ONE OF 79 PAGES.  THE HEARING LASTING
THREE DAYS HAD A TRANSCRIPT OF 319 PAGES. 

FN23  THE TIME WAS COMPUTED FROM THE DAY OF FILING OF THE APPLICATION
FOR HABEAS CORPUS UNTIL ITS DISMISSAL.  IT DOES NOT TAKE INTO ACCOUNT
ANY APPEAL TIME.  IT IS SLIGHTLY INACCURATE BECAUSE MOST CASES ARE
FILED IN FORMA PAUPERIS, SO THAT A FEW DAYS MAY ELAPSE BETWEEN THE TIME
THE COURT RECEIVES THE APPLICATION AND THE TIME IT GRANTS LEAVE TO FILE
IN FORMA PAUPERIS.  IN ALL CASES WHERE THE DOCKET OR OTHER PAPERS
INDICATED THE DATE SUCH AN APPLICATION WAS RECEIVED, THAT DATE WAS USED
RATHER THAN THE DATE SHOWN BY THE DOCKET AS THE DATE ON WHICH THE
APPLICATION WAS FILED. 

FN24  THAT IS, THE CLAIM IS IN AN AREA IN WHICH FEDERAL PROTECTION IS
AFFORDED, E.G., REPRESENTATION BY COUNSEL, BUT THE APPLICANT DOES NOT
SHOW THAT HIS CASE COMES WITHIN THE REQUIREMENTS FOR PROTECTION, E.G.,
IGNORANCE AND INABILITY ADEQUATELY TO DEFEND HIMSELF. 

MR. JUSTICE JACKSON, CONCURRING IN THE RESULT. 

CONTROVERSY AS TO THE UNDISCRIMINATING USE OF THE WRIT OF HABEAS
CORPUS BY FEDERAL JUDGES TO SET ASIDE STATE COURT CONVICTIONS IS
TRACEABLE TO THREE PRINCIPAL CAUSES:  (1) THIS COURT'S USE OF THE
GENERALITY OF THE FOURTEENTH AMENDMENT TO SUBJECT STATE COURTS TO
INCREASING FEDERAL CONTROL, EXPECIALLY IN THE CRIMINAL LAW FIELD; (2)
AD HOC DETERMINATION OF DUE PROCESS OF LAW ISSUES BY PERSONAL NOTIONS
OF JUSTICE INSTEAD OF BY KNOWN RULES OF LAW; AND (3) THE BREAKDOWN OF
PROCEDURAL SAFEGUARDS AGAINST ABUSE OF THE WRIT. 

1.  IN 1867, CONGRESS AUTHORIZED FEDERAL COURTS TO ISSUE WRITS OF
HABEAS CORPUS TO PRISONERS "IN CUSTODY IN VIOLATION OF THE CONSTITUTION
OR LAWS OR TREATIES OF THE UNITED STATES."  (FN1)  AT THAT TIME, THE
WRIT WAS NOT AVAILABLE HERE NOR IN ENGLAND TO CHALLENGE ANY SENTENCE
IMPOSED BY A COURT OF COMPETENT JURISDICTION.  (FN2)  THE HISTORIC
PURPOSE OF THE WRIT HAS BEEN TO RELIEVE DETENTION BY EXECUTIVE
AUTHORITIES WITHOUT JUDICIAL TRIAL.  (FN3)  IT MIGHT HAVE BEEN EXPECTED
THAT IF CONGRESS INTENDED A REVERSAL OF THIS TRADITIONAL CONCEPT OF
HABEAS CORPUS IT WOULD HAVE SAID SO.  HOWEVER, THIS ONE SENTENCE IN THE
ACT EVENTUALLY WAS CONSTRUED AS AUTHORITY FOR FEDERAL JUDGES TO
ENTERTAIN COLLATERAL ATTACKS ON STATE COURT CRIMINAL JUDGMENTS.  (FN4)
WHATEVER ITS JUSTIFICATION, IT CREATED POTENTIALITIES FOR CONFLICT
CERTAIN TO LEAD TO THE ANTAGONISMS WE HAVE NOW, UNLESS THE POWER GIVEN
TO FEDERAL JUDGES WERE RESPONSIBLY USED ACCORDING TO LAWYERLY
PROCEDURES AND WITH GENUINE RESPECT FOR STATE COURT FACT FINDING. 
BUT, ONCE ESTABLISHED, THIS JURISDICTION OBVIOUSLY WOULD GROW WITH EACH
EXPANSION OF THE SUBSTANTIVE GROUNDS FOR HABEAS CORPUS.  THE
GENERALITIES OF THE FOURTEENTH AMENDMENT ARE SO INDETERMINATE AS TO
WHAT STATE ACTIONS ARE FORBIDDEN THAT THIS COURT HAS FOUND IT A READY
INSTRUMENT, IN ONE FIELD OR ANOTHER, TO MAGNIFY FEDERAL, AND
INCIDENTALLY ITS OWN, AUTHORITY OVER THE STATES.  THE EXPANSION NOW HAS
REACHED A POINT WHERE ANY STATE COURT CONVICTION, DISAPPROVED BY A
MAJORITY OF THIS COURT, THEREBY BECOMES UNCONSTITUTIONAL AND SUBJECT TO
NULLIFICATION BY HABEAS CORPUS.  (FN5) 

THIS MIGHT NOT BE SO DEMORALIZING IF STATE JUDGES COULD ANTICIPATE,
AND SO COMPLY WITH, THIS COURT'S DUE PROCESS REQUIREMENTS OR ASCERTAIN
ANY STANDARDS TO WHICH THIS COURT WILL ADHERE IN PRESCRIBING THEM.  BUT
THEY CANNOT.  OF COURSE, CONSIDERABLE UNCERTAINTY IS INHERENT IN
DECISIONAL LAW WHICH, IN CHANGING TIMES, PURPORTS TO INTERPRET
IMPLICATIONS OF CONSTITUTIONAL PROVISIONS SO CRYPTIC AND VAGRANT.  HOW
MUCH OBSCURITY IS INEVITABLE WILL BE A MATTER OF OPINION.  HOWEVER, IN
CONSIDERING A REMEDY FOR HABEAS CORPUS PROBLEMS, IT IS PRUDENT TO
ASSUME THAT THE SCOPE AND REACH OF THE FOURTEENTH AMENDMENT WILL
CONTINUE TO BE UNKNOWN AND UNKNOWABLE, THAT WHAT SEEMS ESTABLISHED BY
ONE DECISION IS APT TO BE UNSETTLED BY ANOTHER, AND THAT ITS
INTERPRETATION WILL BE MORE OR LESS SWAYED BY CONTEMPORARY INTELLECTUAL
FASHIONS AND POLITICAL CURRENTS. 

WE MAY LOOK UPON THIS UNSTABLE PROSPECT COMPLACENTLY, BUT STATE
JUDGES CANNOT.  THEY ARE NOT ONLY BEING GRADUALLY SUBORDINATED TO THE
FEDERAL JUDICIARY BUT FEDERAL COURTS HAVE DECLARED THAT STATE JUDICIAL
AND OTHER OFFICERS ARE PERSONALLY LIABLE TO FEDERAL PROSECUTION AND TO
CIVIL SUIT BY CONVICTS IF THEY FAIL TO CARRY OUT THIS COURT'S
CONSTITUTIONAL DOCTRINES.  (FN6) 

2.  RIGHTLY OR WRONGLY, THE BELIEF IS WIDELY HELD BY THE PRACTICING
PROFESSION THAT THIS COURT NO LONGER RESPECTS IMPERSONAL RULES OF LAW
BUT IS GUIDED IN THESE MATTERS BY PERSONAL IMPRESSIONS WHICH FROM TIME
TO TIME MAY BE SHARED BY A MAJORITY OF JUSTICES.  WHATEVER HAS BEEN
INTENDED, THIS COURT ALSO HAS GENERATED AN IMPRESSION IN MUCH OF THE
JUDICIARY THAT REGARD FOR PRECEDENTS AND AUTHORITIES IS OBSOLETE, THAT
WORDS NO LONGER MEAN WHAT THEY HAVE ALWAYS MEANT TO THE PROFESSION,
THAT THE LAW KNOWS NO FIXED PRINCIPLES. 

A MANIFESTATION OF THIS IS SEEN IN THE DIMINISHING RESPECT SHOWN FOR
STATE COURT ADJUDICATIONS OF FACT.  OF COURSE, THIS COURT NEVER HAS
CONSIDERED ITSELF FORECLOSED BY A STATE COURT'S DECISION AS TO THE
FACTS WHEN THAT DETERMINATION RESULTS IN ALLEGED DENIAL OF A FEDERAL
RIGHT.  BUT CAPTIOUS USE OF THIS POWER WAS RESTRAINED BY OBSERVANCE OF
A RULE, ELEMENTARY IN ALL APPELLATE PROCEDURE, THAT THE FINDINGS OF
FACT ON A TRIAL ARE TO BE ACCEPTED BY AN APPELLATE COURT IN ABSENCE OF
CLEAR SHOWING OF ERROR.  THE TRIAL COURT, SEEING THE DEMEANOR OF
WITNESSES, HEARING THE PARTIES, GIVING TO EACH CASE FAR MORE TIME THAN
AN APPELLATE COURT CAN GIVE, IS IN A BETTER POSITION TO UNRAVEL
DISPUTES OF FACT THAN IS AN APPELLATE COURT ON A PRINTED TRANSCRIPT. 
RECENT DECISIONS AVOW NO CANDID ALTERATION OF THESE RULES, BUT REVISION
OF STATE FACT FINDING HAS GROWN BY EMPHASIS, AND RESPECT FOR IT HAS
WITHERED BY DISREGARD.  (FN7) 

3.  THE FACT THAT THE SUBSTANTIVE LAW OF DUE PROCESS IS AND PROBABLY
MUST REMAIN SO VAGUE AND UNSETTLED AS TO INVITE FARFETCHED OR
BORDERLINE PETITIONS MAKES IT IMPORTANT TO ADHERE TO PROCEDURES WHICH
ENABLE COURTS READILY TO DISTINGUISH A PROBABLE CONSTITUTIONAL
GRIEVANCE FROM A CONVICT'S MERE GAMBLE ON PERSUADING SOME INDULGENT
JUDGE TO LET HIM OUT OF JAIL.  INSTEAD, THIS COURT HAS SANCTIONED
PROGRESSIVE TRIVIALIZATION OF THE WRIT UNTIL FLOODS OF STALE, FRIVOLOUS
AND REPETITIOUS PETITIONS INUNDATE THE DOCKET OF THE LOWER COURTS AND
SWELL OUR OWN.  (FN8)  JUDGED BY OUR OWN DISPOSITION OF HABEAS CORPUS
MATTERS, THEY HAVE, AS A CLASS, BECOME PECULIARLY UNDESERVING.  (FN9)
IT MUST PREJUDICE THE OCCASIONAL MERITORIOUS APPLICATION TO BE BURIED
IN A FLOOD OF WORTHLESS ONES.  HE WHO MUST SEARCH A HAYSTACK FOR A
NEEDLE IS LIKELY TO END UP WITH THE ATTITUDE THAT THE NEEDLE IS NOT
WORTH THE SEARCH.  NOR IS IT ANY ANSWER TO SAY THAT FEW OF THESE
PETITIONS IN ANY COURT REALLY RESULT IN THE DISCHARGE OF THE
PETITIONER.  (FN10)  THAT IS THE CONDEMNATION OF THE PROCEDURE WHICH
HAS ENCOURAGED FRIVOLOUS CASES.  IN THIS MULTIPLICITY OF WORTHLESS
CASES, STATES ARE COMPELLED TO DEFAULT OR TO DEFEND THE INTEGRITY OF
THEIR JUDGES AND THEIR OFFICIAL RECORDS, SOMETIMES CONCERNING TRIALS OR
PLEAS THAT WERE CLOSED MANY YEARS AGO.  (FN11)  STATE ATTORNEYS GENERAL
RECENTLY HAVE COME HABITUALLY TO IGNORE THESE PROCEEDINGS, RESPONDING
ONLY WHEN SPECIALLY REQUESTED AND SOMETIMES NOT THEN.  SOME STATE
COURTS HAVE WEARIED OF OUR REPEATED DEMANDS UPON THEM AND HAVE DECLINED
TO FURTHER ELUCIDATE GROUNDS FOR THEIR DECISIONS.  (FN12)  THE
ASSEMBLED CHIEF JUSTICES OF THE HIGHEST COURTS OF THE STATES HAVE TAKEN
THE UNUSUAL STEP OF CONDEMNING THE PRESENT PRACTICE BY RESOLUTION. 
(FN13) 

IT CANNOT BE DENIED THAT THE TREND OF OUR DECISIONS IS TO ABANDON
RULES OF PLEADING OR PROCEDURE WHICH WOULD PROTECT THE WRIT AGAINST
ABUSE.  ONCE UPON A TIME THE WRIT COULD NOT BE SUBSTITUTED FOR APPEAL
OR OTHER REVIEWING PROCESS BUT CHALLENGED ONLY THE LEGAL COMPETENCE OR
JURISDICTION OF THE COMMITTING COURT.  (FN14)  WE HAVE SO DEPARTED FROM
THIS PRINCIPLE THAT THE PROFESSION NOW BELIEVES THAT THE ISSUES WE
ACTUALLY CONSIDER ON A FEDERAL PRISONER'S HABEAS CORPUS ARE
SUBSTANTIALLY THE SAME AS WOULD BE CONSIDERED ON APPEAL.  (FN15) 

CONFLICT WITH STATE COURTS IS THE INEVITABLE RESULT OF GIVING THE
CONVICT A VIRTUAL NEW TRIAL BEFORE A FEDERAL COURT SITTING WITHOUT A
JURY.  WHENEVER DECISIONS OF ONE COURT ARE REVIEWED BY ANOTHER, A
PERCENTAGE OF THEM ARE REVERSED.  THAT REFLECTS A DIFFERENCE IN OUTLOOK
NORMALLY FOUND BETWEEN PERSONNEL COMPRISING DIFFERENT COURTS.  HOWEVER,
REVERSAL BY A HIGHER COURT IS NOT PROOF THAT JUSTICE IS THEREBY BETTER
DONE.  THERE IS NO DOUBT THAT IF THERE WERE A SUPER-SUPREME COURT, A
SUBSTANTIAL PROPORTION OF OUR REVERSALS OF STATE COURTS WOULD ALSO BE
REVERSED.  WE ARE NOT FINAL BECAUSE WE ARE INFALLIBLE, BUT WE ARE
INFALLIBLE ONLY BECAUSE WE ARE FINAL. 

AS TO THE PLEADING REQUIREMENTS IN HABEAS CORPUS, WHAT HAS HAPPENED
MAY BEST BE LEARNED BY COMPARISON OF THE METICULOUSLY PLEADED FACTS AND
CIRCUMSTANCES RELIED UPON BY THIS COURT'S OPINION IN MOORE V. DEMPSEY,
261 U.S. 86 (1923), AND IN MOONEY V. HOLOHAN, 294 U.S. 103 (1935), WITH
CONDONATION OF THEIR ABSENCE IN PRICE V. JOHNSTON, 334 U.S. 266
(1948).  IT REALLY HAS BECOME NECESSARY TO PLEAD NOTHING MORE THAN THAT
THE PRISONER IS IN JAIL, WANTS TO GET OUT, AND THINKS IT IS ILLEGAL TO
HOLD HIM.  (FN16)  IF HE FAILS, HE MAY MAKE THE SAME PLEA OVER AND OVER
AGAIN.  (FN17)

SINCE THE CONSTITUTION AND LAWS MADE PURSUANT TO IT ARE THE SUPREME
LAW AND SINCE THE SUPREMACY AND UNIFORMITY OF FEDERAL LAW ARE
ATTAINABLE ONLY BY A CENTRALIZED SOURCE OF AUTHORITY, DENIAL BY A STATE
OF A CLAIMED FEDERAL RIGHT MUST GIVE SOME ACCESS TO THE FEDERAL
JUDICIAL SYSTEM.  BUT FEDERAL INTERFERENCE WITH STATE ADMINISTRATION OF
ITS CRIMINAL LAW SHOULD NOT BE PREMATURE AND SHOULD NOT OCCUR WHERE IT
IS NOT NEEDED.  THEREFORE, WE HAVE RULED THAT A STATE CONVICT MUST
EXHAUST ALL REMEDIES WHICH THE STATE AFFORDS FOR HIS ALLEGED GRIEVANCE
BEFORE HE CAN TAKE IT TO ANY FEDERAL COURT BY HABEAS CORPUS. 

THE STATES ALL ALLOW SOME APPEAL FROM A JUDGMENT OF CONVICTION WHICH
PERMITS REVIEW OF ANY QUESTION OF LAW, STATE OR FEDERAL, RAISED UPON
THE RECORD.  NO STATE IS OBLIGED TO FURNISH MULTIPLE REMEDIES FOR THE
SAME GRIEVANCE.  MOST STATES, AND WITH GOOD REASON, WILL NOT SUFFER A
COLLATERAL ATTACK SUCH AS HABEAS CORPUS TO BE USED AS A SUBSTITUTE FOR
OR DUPLICATION OF THE APPEAL.  A STATE PROPERLY MAY DENY HABEAS CORPUS
TO RAISE EITHER STATE OR FEDERAL ISSUES THAT WERE OR COULD HAVE BEEN
CONSIDERED ON APPEAL.  SUCH RESTRICTION BY THE STATE SHOULD BE
RESPECTED BY FEDERAL COURTS. 

ASSUMING THAT A FEDERAL QUESTION NOT REACHABLE ON APPEAL IS PROPERLY
PRESENTED BY HABEAS CORPUS AND DECIDED ADVERSELY BY THE HIGHEST
COMPETENT COURT OF THE STATE, SHOULD THE PRISONER THEN COME TO THIS
COURT AND ASK US TO REVIEW THE RECORD BY CERTIORARI OR SHOULD HE GO TO
THE DISTRICT COURT AND INSTITUTE A NEW FEDERAL HABEAS CORPUS
PROCEEDING?  DARR V. BURFORD, 339 U.S. 200, AS I UNDERSTAND IT, HELD
THAT IN THESE CIRCUMSTANCES THE PRISONER MUST APPLY TO THIS COURT FOR
CERTIORARI BEFORE HE CAN GO TO ANY OTHER FEDERAL COURT, BECAUSE ONLY BY
SO DOING COULD HE EXHAUST HIS STATE REMEDY.  WHATEVER ONE MAY THINK OF
THAT RESULT, IT DOES NOT SEEM LOGICAL TO SUPPORT IT BY ASSERTING THAT
THIS COURT'S CERTIORARI POWER IS ANY PART OF A STATE'S REMEDY.  AN
AUTHORITY OUTSIDE OF THE STATE IMPOSES A DUTY UPON THE STATE TO TURN
THE CASE OVER TO IT, IN A PROCEEDING WHICH MAKES THE STATE VIRTUALLY A
DEFENDANT.  TO SAY THAT OUR COMMAND TO CERTIFY THE CASE TO US IS A
STATE REMEDY IS TO INDULGE IN FICTION, AND THE DIFFICULTY WITH FICTIONS
IS THAT THOSE THEY ARE MOST APT TO MISLEAD ARE THOSE WHO PROCLAIM
THEM. 

BUT NOW IT IS PROPOSED TO NEUTRALIZE THE ARTIFICIALITY OF THE PROCESS
AND COUNTERBALANCE THE FICTION THAT OUR CERTIORARI IS A STATE REMEDY BY
HOLDING THAT THIS STEP WHICH THE PRISONER MUST TAKE MEANS NOTHING TO
HIM OR THE STATE WHEN IT FAILS, AS IN MOST CASES IT DOES. 

THE COURT IS NOT QUITE OF ONE MIND ON THE SUBJECT.  SOME SAY DENIAL
MEANS NOTHING, OTHERS SAY IT MEANS NOTHING MUCH.  REALISTICALLY, THE
FIRST POSITION IS UNTENABLE AND THE SECOND IS UNINTELLIGIBLE.  HOW CAN
WE SAY THAT THE PRISONER MUST PRESENT HIS CASE TO US AND AT THE SAME
TIME SAY THAT WHAT WE DO WITH IT MEANS NOTHING TO ANYBODY.  WE MIGHT
CONCEIVABLY TAKE EITHER POSITION BUT NOT, RATIONALLY, BOTH, FOR THE TWO
WILL NOT ONLY BURDEN OUR OWN DOCKET AND HARASS THE STATE AUTHORITIES
BUT IT MAKES A PRISONER'S LEGITIMATE QUEST FOR FEDERAL JUSTICE AN
ENDURANCE CONTEST. 

TRUE, NEITHER THOSE OUTSIDE OF THE COURT, NOR ON MANY OCCASIONS THOSE
INSIDE OF IT, KNOW JUST WHAT REASONS LED SIX JUSTICES TO WITHHOLD
CONSENT TO A CERTIORARI.  BUT ALL KNOW THAT A MAJORITY, LARGER THAN CAN
BE MUSTERED FOR A GOOD MANY DECISIONS, HAS FOUND REASON FOR NOT
REVIEWING THE CASE HERE.  BECAUSE NO ONE KNOWS ALL THAT A DENIAL MEANS,
DOES IT MEAN THAT IT MEANS NOTHING?  PERHAPS THE PROFESSION COULD
ACCEPT DENIAL AS MEANINGLESS BEFORE THE CUSTOM WAS INTRODUCED OF NOTING
DISSENTS FROM THEM.  LAWYERS AND LOWER JUDGES WILL NOT READILY BELIEVE
THAT JUSTICES OF THIS COURT ARE TAKING THE TROUBLE TO SIGNAL A
MEANINGLESS DIVISION OF OPINION ABOUT A MEANINGLESS ACT.  (FN18)  IT IS
JUST ONE OF THE FACTS OF LIFE THAT TODAY EVERY LOWER COURT DOES ATTACH
IMPORTANCE TO DENIALS AND TO PRESENCE OR ABSENCE OF DISSENTS FROM
DENIALS, AS JUDICIAL OPINIONS AND LAWYERS' ARGUMENTS SHOW. 

THE FATAL SENTENCE THAT IN REAL LIFE WRITES FINIS TO MANY CAUSES
CANNOT IN LEGAL THEORY BE A COMPLETE BLANK.  I CAN SEE ORDER IN THE
CONFUSION AS TO ITS MEANING ONLY BY DISTINGUISHING ITS SIGNIFICANCE
UNDER THE DOCTRINE OF STARE DECISIS, FROM ITS EFFECT UNDER THE DOCTRINE
OF RES JUDICATA.  I AGREE THAT, AS STARE DECISIS, DENIAL OF CERTIORARI
SHOULD BE GIVEN NO SIGNIFICANCE WHATEVER.  IT CREATES NO PRECEDENT AND
APPROVES NO STATEMENT OF PRINCIPLE ENTITLED TO WEIGHT IN ANY OTHER
CASE.  BUT, FOR THE CASE IN WHICH CERTIORARI IS DENIED, ITS MINIMUM
MEANING IS THAT THIS COURT ALLOWS THE JUDGMENT BELOW TO STAND WITH
WHATEVER CONSEQUENCES IT MAY HAVE UPON THE LITIGANTS INVOLVED UNDER THE
DOCTRINE OF RES JUDICATA AS APPLIED EITHER BY STATE OR FEDERAL COURTS. 
A CIVIL OR CRIMINAL JUDGMENT USUALLY BECOMES RES JUDICATA IN THE SENSE
THAT IT IS BINDING AND CONCLUSIVE EVEN IF NEW FACTS ARE DISCOVERED AND
EVEN IF A NEW THEORY OF LAW WERE THOUGHT UP, EXCEPT FOR SOME PROVISION
FOR GRANTING A NEW TRIAL, WHICH USUALLY IS DISCRETIONARY WITH THE TRIAL
COURT AND LIMITED IN TIME. 

IT IS SOMETIMES SAID THAT RES JUDICATA HAS NO APPLICATION WHATEVER IN
HABEAS CORPUS CASES AND SURELY IT DOES NOT APPLY WITH ALL OF ITS
CONVENTIONAL SEVERITY.  HABEAS CORPUS DIFFERS FROM THE ORDINARY
JUDGMENT IN THAT, ALTHOUGH AN ADJUDICATION HAS BECOME FINAL, THE
APPLICATION IS RENEWABLE, AT LEAST IF NEW EVIDENCE AND MATERIAL IS
DISCOVERED OR IF, PERHAPS AS THE RESULT OF A NEW DECISION, A NEW LAW
BECOMES APPLICABLE TO THE CASE.  THIS IS QUITE PROPER SO LONG AS ITS
ISSUES RELATE TO JURISDICTION.  BUT CALL IT RES JUDICATA OR WHAT ONE
WILL, COURTS OUGHT NOT TO BE OBLIGED TO ALLOW A CONVICT TO LITIGATE
AGAIN AND AGAIN EXACTLY THE SAME QUESTION ON THE SAME EVIDENCE.  NOR IS
THERE ANY GOOD REASON WHY AN IDENTICAL CONTENTION REJECTED BY A HIGHER
COURT SHOULD BE REVIEWED ON THE SAME FACTS IN A LOWER ONE. 

THE CHIEF OBJECTION TO GIVING THIS LIMITED FINALITY TO OUR DENIAL OF
CERTIORARI IS THAT WE PASS UPON THESE WRITS OF HABEAS CORPUS SO
CASUALLY OR UPON GROUNDS SO UNRELATED TO THEIR MERITS THAT OUR DECISION
SHOULD NOT HAVE THE WEIGHT OF FINALITY.  NO VERY CLOSE PERSONAL
CONSIDERATION CAN BE GIVEN BY EACH JUSTICE TO SUCH A MULTIPLICITY OF
THESE PETITIONS AS WE HAVE HAD AND, AS A CLASS, THEY ARE SO FRIVOLOUS,
SO MEANINGLESS, AND OFTEN SO UNINTELLIGIBLE THAT THIS WORTHLESSNESS OF
THE CLASS DISCREDITS EACH INDIVIDUAL APPLICATION.  IF THIS DELUGE WERE
REDUCED BY OBSERVANCE OF PROCEDURAL SAFEGUARDS TO MANAGEABLE
PROPORTIONS SO THAT IT WOULD BE POSSIBLE TO EXAMINE THE CASES WITH SOME
CARE AND TO HEAR THOSE THAT SHOW MERIT, I THINK THIS OBJECTION WOULD
LARGELY DISAPPEAR.  THE FACT IS THAT SUPERFICIAL CONSIDERATION OF THESE
CASES IS THE INEVITABLE RESULT OF DEPRECIATION OF THE WRIT.  THE WRIT
HAS NO ENEMIES SO DEADLY AS THOSE WHO SANCTION THE ABUSE OF IT,
WHATEVER THEIR INTENT.    IF A STATE IS REALLY OBTAINING CONVICTION BY
LAWS OR PROCEDURES WHICH VIOLATE THE FEDERAL CONSTITUTION, IT IS ALWAYS
A SERIOUS WRONG, NOT ONLY TO A PARTICULAR CONVICT, BUT TO FEDERAL LAW. 
IT IS NOT PROBABLE THAT SIX JUSTICES WOULD PASS UP A CASE WHICH
INTELLIGIBLY PRESENTED THIS SITUATION.  BUT AN EXAMINATION OF THESE
PETITIONS WILL SHOW THAT FEW OF THEM, TESTED BY ANY RATIONAL RULES OF
PLEADING, ACTUALLY RAISE ANY QUESTION OF LAW ON WHICH THE STATE COURT
HAS DIFFERED FROM THE UNDERSTANDING PREVAILING IN THIS COURT.  THE
POINT ON WHICH WE ARE URGED TO OVERRULE STATE COURTS ALMOST INVARIABLY
IS IN THEIR APPRAISAL OF FACTS.  FOR EXAMPLE, THE JURY, THE TRIAL
JUDGE, AND ONE OR MORE APPELLATE COURTS BELOW HAVE HELD THAT
CONFLICTING EVIDENCE PROVES A CONFESSION WAS VOLUNTARY; THE PRISONER
WANTS US TO SAY THE EVIDENCE PROVES IT WAS COERCED.  THE COURT BELOW
FOUND THAT THE PRISONER WAIVED COUNSEL AND VOLUNTARILY PLEADED GUILTY;
HE WANTS US TO FIND THAT HE DID NOT.  THE JURY AND THE TRIAL JUDGE
BELOW BELIEVED ONE SET OF WITNESSES WHOSE TESTIMONY SHOWED HIS GUILT;
HE WANTS US TO BELIEVE THE OTHER AND TO HOLD THAT HE HAS BEEN CONVICTED
BY PERJURY.  THAT IS THE TYPE OF FACTUAL ISSUE UPON WHICH THIS COURT
AND OTHER FEDERAL COURTS ARE ASKED TO INTERVENE AND UPSET STATE COURT
CONVICTIONS.  THERE ARE PLENTY OF GOOD REASONS WHY WE SHOULD RARELY DO
THAT, AND EVEN BETTER REASONS WHY THE DISTRICT COURT SHOULD NOT
UNDERTAKE TO DO IT AFTER WE HAVE DECLINED TO. 

MY CONCLUSION IS THAT WHETHER OR NOT THIS COURT HAS DENIED CERTIORARI
FROM A STATE COURT'S JUDGMENT IN A HABEAS CORPUS PROCEEDING, NO LOWER
FEDERAL COURT SHOULD ENTERTAIN A PETITION EXCEPT ON THE FOLLOWING
CONDITIONS:  (1) THAT THE PETITION RAISES A JURISDICTIONAL QUESTION
INVOLVING FEDERAL LAW ON WHICH THE STATE LAW ALLOWED NO ACCESS TO ITS
COURTS, EITHER BY HABEAS CORPUS OR APPEAL FROM THE CONVICTION, AND THAT
HE THEREFORE HAS NO STATE REMEDY; OR (2) THAT THE PETITION SHOWS THAT
ALTHOUGH THE LAW ALLOWS A REMEDY, HE WAS ACTUALLY IMPROPERLY OBSTRUCTED
FROM MAKING A RECORD UPON WHICH THE QUESTION COULD BE PRESENTED, SO
THAT HIS REMEDY BY WAY OF ULTIMATE APPLICATION TO THIS COURT FOR
CERTIORARI HAS BEEN FRUSTRATED.  THERE MAY BE CIRCUMSTANCES SO
EXTRAORDINARY THAT I DO NOT NOW THINK OF THEM WHICH WOULD JUSTIFY A
DEPARTURE FROM THIS RULE, BUT THE RUN-OF-THE-MILL CASE CERTAINLY DOES
NOT. 

WHETHER ONE WILL AGREE WITH THIS GENERAL PROPOSITION WILL DEPEND, I
SUPPOSE, ON THE LATITUDE HE THINKS FEDERAL COURTS SHOULD EXERCISE IN
RETRYING DE NOVO STATE COURT CRIMINAL ISSUES.  IF THE FEDERAL COURTS
ARE TO TEST A STATE COURT'S DECISION BY HEARING NEW EVIDENCE IN A NEW
PROCEEDING, THE PRETENSE OF EXHAUSTION OF STATE REMEDIES IS A SHAM, FOR
THE STATE COURTS COULD NOT HAVE GIVEN A REMEDY ON EVIDENCE WHICH THEY
HAD NO CHANCE TO HEAR.  I CANNOT SEE WHY FEDERAL COURTS SHOULD HEAR
EVIDENCE THAT WAS NOT PRESENTED TO THE STATE COURTS UNLESS THE PRISONER
HAS BEEN PREVENTED FROM MAKING A RECORD OF HIS GRIEVANCE, WITH THE
RESULT THAT THERE IS NO RECORD OF IT TO BRING HERE ON CERTIORARI.  SUCH
CIRCUMSTANCES WOULD SEEM TO CALL FOR AN ORIGINAL REMEDY IN THE DISTRICT
COURTS WHICH WOULD BE IN A POSITION TO TAKE EVIDENCE AND MAKE THE
RECORD ON WHICH WE ULTIMATELY MUST PASS IF THERE DEVELOPS A CONFLICT OF
LAW BETWEEN A FEDERAL AND STATE COURT. 

IF THIS COURT WERE WILLING TO ADOPT THIS DOCTRINE OF FEDERAL SELF
RESTRAINT, IT COULD SETTLE SOME PROCEDURES, RULES OF PLEADING AND
PRACTICES WHICH WOULD WEED OUT THE ABUSES AND FRIVOLOUS CAUSES AND
IDENTIFY THE WORTHY ONES.  I KNOW THE DIFFICULTY OF FORMULATING
PRACTICE RULES AND THEIR PITFALLS.  NOR DO I UNDERESTIMATE THE ARGUMENT
THAT THE WRIT OFTEN IS PETITIONED FOR BY PRISONERS WITHOUT COUNSEL AND
THAT THEY SHOULD NOT BE HELD TO THE ARTIFICIALITIES IN PLEADING THAT WE
EXPECT IN LAWYERS.  BUT I KNOW OF NO WAY THAT WE CAN HAVE EQUAL JUSTICE
UNDER LAW EXCEPT WE HAVE SOME LAW.  I SUGGEST SOME GENERAL PRINCIPLES
WHICH, IF ADHERED TO, WOULD REDUCE THE NUMBER OF FRIVOLOUS PETITIONS,
MAKE DECISION UPON THEM POSSIBLE AT AN EARLIER TIME AND ALLEVIATE SOME
OF THE IRRITATION THAT IS DEVELOPING OVER ILL-CONSIDERED FEDERAL USE OF
THE WRIT TO SLAP DOWN STATE COURTS. 

FIRST, HABEAS CORPUS SHALL NOT (IN ABSENCE OF STATE LAW TO THE
CONTRARY) RAISE ANY QUESTION WHICH WAS, OR COULD HAVE BEEN, DECIDED BY
APPEAL OR OTHER PROCEDURE FOR REVIEW OF CONVICTION.  IN THE ABSENCE OF
SHOWING TO THE CONTRARY, HABEAS CORPUS WILL BE DEEMED TO LIE ONLY FOR
DEFECTS NOT DISCLOSED ON THE RECORD, GOING TO THE POWER, LEGAL
COMPETENCE OR JURISDICTION OF THE COMMITTING STATE COURT. 

SECOND, EVERY PETITION TO A FEDERAL COURT IS REQUIRED, AND THOSE TO A
STATE COURT MAY BE REQUIRED, BY STATE LAW TO CONTAIN A PLAIN BUT FULL
STATEMENT OF THE FACTS ON WHICH IT IS BASED.  UNLESS IT STATES FACTS
WHICH, IF PROVED, WOULD WARRANT RELIEF, THE APPLICANT IS NOT ENTITLED
AS OF RIGHT TO A HEARING.  TECHNICAL FORMS OR ARTIFICIALITIES OF
PLEADING WILL NOT BE REQUIRED. 

PRESUMABLY A FEDERAL COURT WILL NOT RELEASE A CONVICT UNTIL HE PROVES
FACTS WHICH SHOW INVALIDITY OF HIS CONVICTION.  IF PROOF IS TO BE
REQUIRED, IT IS NO HARDSHIP TO REQUIRE A SIMPLE STATEMENT OF WHAT IT
WILL BE.  A PETITIONER SHOULD BE GIVEN BENEFIT OF LIBERAL CONSTRUCTION,
OF ALL USUAL PRIVILEGES OF AMENDMENT, AND, IF THE COURT FINDS A
PROBABLY WORTHY CASE, APPOINTMENT OF COUNSEL TO AID IN AMENDING THE
PETITION AND PRESENTING THE CASE. 

THIRD, PETITIONS TO FEDERAL COURTS ARE REQUIRED, AND THOSE TO STATE
COURTS MAY BE REQUIRED, TO SET FORTH EVERY PREVIOUS APPLICATION TO ANY
COURT FOR RELIEF ON ANY GROUNDS.  IF THE CURRENT PETITION IS MADE UPON
THE SAME GROUNDS AS AN EARLIER ONE, IT SHOULD STATE FULLY ANY EVIDENCE
NOW AVAILABLE IN ITS SUPPORT THAT WAS NOT OFFERED BEFORE AND EXPLAIN
FAILURE TO PRESENT IT.  ON THE JURISDICTIONAL QUESTIONS APPROPRIATE FOR
HABEAS CORPUS, THE PETITIONER MAY NOT BE BARRED FROM PROOF BY NEWLY
DISCOVERED EVIDENCE, BUT IT IS NOT ASKING TOO MUCH THAT HIS PETITION
DISCLOSE THAT HE HAS IT AND A BASIS FOR APPRAISING ITS RELEVANCE AND
EFFECT.  HE SHOULD NOT BE PRECLUDED FROM RAISING NEW GROUNDS OF
UNCONSTITUTIONALITY IN A LATER PETITION, ESPECIALLY IN VIEW OF THE
UNSETTLED CHARACTER OF OUR CONSTITUTIONAL DOCTRINES OF DUE PROCESS. 
BUT THE FACTS THAT MAKE THE NEW GROUNDS APPLICABLE SHOULD APPEAR.  IF
FEDERAL RELIEF IS SOUGHT ON THE GROUNDS THAT STATE LAW AFFORDS NO
REMEDY, OR HIS RESORT THERETO HAS BEEN OBSTRUCTED AND HE HAS BEEN
UNABLE TO PRESENT HIS CASE TO A STATE COURT, THE FACTS RELIED ON SHOULD
BE CLEARLY AND FULLY SET FORTH. 

MUCH PROBABLY MAY BE SAID IN CRITICISM OF MY STATEMENT OF THESE
PRINCIPLES BUT NOTHING, I AM CONVINCED, AGAINST THEIR HISTORICAL
AUTHENTICITY AS PART OF THE TRADITIONAL LAW OF HABEAS CORPUS OR AGAINST
THEIR APPLICATION NOW TO STOP ABUSES SO GRAVE THAT THEY FORESHADOW
LEGISLATIVE RESTRICTION OF THE WRIT.  THEY DO NOT FORECLOSE WORTHY
CAUSES BUT EARMARK THEM FOR THE SERIOUS TREATMENT THEY DESERVE.  THEY
WILL NOT EVEN WHOLLY ELIMINATE FRIVOLOUS PETITIONS BUT WILL DISCOURAGE
THEM BY EXPOSING THEIR FRIVOLITY AT AN EARLIER STAGE. 

SOCIETY HAS NO INTEREST IN MAINTAINING AN UNCONSTITUTIONAL CONVICTION
AND EVERY INTEREST IN PRESERVING THE WRIT OF HABEAS CORPUS TO NULLIFY
THEM WHEN THEY OCCUR.  BUT THE CONSTITUTION DOES NOT PREVENT THE STATE
COURTS FROM DETERMINING THE FACTS IN CRIMINAL CASES.  IT DOES NOT MAKE
IT UNCONSTITUTIONAL FOR THEM TO HAVE A DIFFERENT OPINION THAN A FEDERAL
JUDGE ABOUT THE WEIGHT TO BE GIVEN TO EVIDENCE.  MY VOTES IN THE CASES
UNDER REVIEW AND ON OTHER PETITIONS AND REVIEWS WILL BE GUIDED AS
NEARLY AS I CAN BY THE PRINCIPLES SET FORTH HEREIN. 

I CONCUR IN THE RESULT ANNOUNCED BY MR. JUSTICE REED IN THESE THREE
CASES. 

FN1  28 U.S.C. SECS. 2241(C)(3). 

FN2  EX PARTE FERGUSON, (1917) 1 K.B. 176, 179; EX PARTE LEES, EL.
BL. & EL. 828, 120 ENG. REP. 718; IN RE DUNN, 5 C.B. 215, 136 ENG. REP.
859; HABEAS CORPUS ACT OF 1679, 31 CAR.  II, C. 2; EX PARTE WATKINS, 3
PET. 193, 202. 

FN3  DARNEL'S CASE, 3 HOW.  ST. TR. 1 (1627).  FOR THIS PURPOSE, THE
WRIT HAS NOT BEEN CONSPICUOUSLY SUCCESSFUL IN THE UNITED STATES.  I
HAVE REVIEWED ITS FAILURES, ESPECIALLY IN WARTIMES, IN WARTIME SECURITY
AND LIBERTY UNDER LAW, 1 BUFF.  L.R. 103; UNITED STATES EX REL. KNAUFF
V. SHAUGHNESSY, 338 U.S. 537. 

FN4  SEE THE EQUIVOCAL DISCUSSION OF THE QUESTION IN FRANK V. MAGNUM,
237 U.S. 309, 326-332, AND THE MORE EXPLICIT ASSUMPTION OF THE DISSENT,
ID., AT 348.  AN EARLIER CASE, EX PARTE ROYALL, 117 U.S. 241, CONTAINED
A DICTUM TO THE EFFECT THAT LEGISLATIVE JURISDICTION - THE VALIDITY OF
THE STATUTE UNDER WHICH CONVICTION WAS HAD IN THE STATE COURT - COULD
BE CHALLENGED ON HABEAS CORPUS IN THE FEDERAL COURTS.  WHILE THIS
REPRESENTS A CERTAIN EXPANSION OF TRADITIONAL NOTIONS OF JURISDICTION
IN THE JUDICIAL SENSE, IT BY NO MEANS SUPPORTS THE BROAD REACH GIVEN TO
FEDERAL HABEAS CORPUS BY RECENT CASES.  SEE ALSO MOORE V. DEMPSEY, 261
U.S. 86; MOONEY V. HOLOHAN, 294 U.S. 103. 

FN5  AN IDEA OF THE UNCERTAINTY AND DIVERSITY OF VIEWS IN THIS FIELD
MAY BE GLEANED FROM A COMPARISON OF ROCHIN V. CALIFORNIA, 342 U.S. 165,
WITH WOLF V. COLORADO, 338 U.S. 25, AND ADAMSON V. CALIFORNIA, 332 U.S.
46. 

FN6  THIS COURT'S DECISION IN SCREWS V. UNITED STATES, 325 U.S. 91,
AS THE DISSENTERS ANTICIPATED, HAS LED A FEDERAL COURT OF APPEALS TO
HOLD THAT FEDERAL LAW ENFORCED IN FEDERAL COURTS IMPOSES PERSONAL
LIABILITY UPON STATE JUDICIAL OFFICERS, THOUGH THAT COURT ADMITS THAT
"THE RESULT IS OF FATEFUL PORTENT TO THE JUDICIARY OF THE SEVERAL
STATES."  PICKING V. PENNSYLVANIA R. CO., 151 F.2D 240, 250.  CONTRAST
TO THIS THE ABSOLUTE IMMUNITY FROM SUIT ENJOYED BY FEDERAL OFFICIALS,
EVEN IN ADMINISTRATIVE CAPACITIES.  GREGOIRE V. BIDDLE, 177 F.2D 579. 
WHILE THE SCREWS DECISION HELD OUT PROMISE OF PROTECTION FOR STATE
OFFICIALS BY REQUIRING THAT ANY DENIAL OF CONSTITUTIONAL RIGHT MUST BE
PROVED TO BE WILFUL IN THE SENSE OF KNOWING AND INTENTIONAL, THAT
PROTECTION HAS SINCE BEEN WITHDRAWN.  ANOTHER COURT OF APPEALS UPHELD A
CONVICTION BASED ON A CHARGE THAT WILFULNESS AND INTENT ARE "PRESUMED
AND INFERRED FROM THE RESULT OF THE ACTION."  189 F.2D 711, 714.  THIS
COURT, AGAINST MY WRITTEN DISSENT CALLING ATTENTION TO ITS EFFECT,
REFUSED REVIEW.  KOEHLER V. UNITED STATES, 342 U.S. 852. 

FN7  SEE, E.G., UNITED STATES V. OREGON STATE MEDICAL SOCIETY, 343
U.S. 326, FOR A RECENT EXAMPLE OF THE APPLICATION OF THE PRESUMPTION IN
FAVOR OF A LOWER FEDERAL COURT'S FINDING OF FACT.  COMPARE WATTS V.
INDIANA, 338 U.S. 49; TURNER V. PENNSYLVANIA, 338 U.S. 62; HARRIS V.
SOUTH CAROLINA, 338 U.S. 68; AND MALINSKI V. NEW YORK, 324 U.S. 401,
WITH THE ABOVE FOR ILLUSTRATIONS OF CASES IN WHICH THIS SALUTARY
PRESUMPTION IN FAVOR OF STATE COURT FINDINGS WAS DISREGARDED IN FACT IF
NOT IN THEORY. 

FN8  THERE WERE FILED IN FEDERAL DISTRICT COURTS DURING 1941 ONE
HUNDRED TWENTY-SEVEN PETITIONS FOR HABEAS CORPUS CHALLENGING STATE
CONVICTIONS; IN 1943 THERE WERE TWO HUNDRED SIXTY-NINE; IN 1948 FIVE
HUNDRED FORTY-THREE; IN 1952 FIVE HUNDRED FORTY-ONE.  SPECK, STATISTICS
ON FEDERAL HABEAS CORPUS, 10 OHIO ST. L.J. 337, SHOWS THAT DURING THE
PERIOD FROM 1943 THROUGH 1945 THERE WERE A HIGH NUMBER OF PETITIONS
FILED BY THOSE CONVICTS WHO HAD FILED AT LEAST ONE SUCH PETITION IN
FEDERAL COURT BEFORE.  IN FEDERAL COURTS IN NEW HAMPSHIRE AND SOUTH
DAKOTA, THE PERCENTAGE OF THE TOTAL PETITIONS MADE UP BY REPEATERS WAS
50%.  THE PERCENTAGES FOR THE LARGER STATES ON WHICH STATISTICS WERE
THEN AVAILABLE ARE AS FOLLOWS:  CALIFORNIA, 12%; ILLINOIS, 19%;
MASSACHUSETTS, 20%; MISSOURI, 21%; NEW JERSEY, 17%; NEW YORK, 18%;
PENNSYLVANIA, 22%; TEXAS, 25%.  THESE FIGURES SHOW AN UNNECESSARY
BURDEN ON THE FEDERAL COURTS BY QUANTITATIVE AS WELL AS DRAMATIC
TESTS. 

FN9  SEE SPECK, SUPRA, TABLE 3, P. 349. 

FN10  STATISTICS OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS FOR THE PERIOD 1946-1952 SHOW THAT, IN 1946, 2.8% OF THE
PETITIONERS WERE SUCCESSFUL; IN 1952, 1.8% WERE SUCCESSFUL. 

FN11  PAGES FULL OF NUMBERS FAIL TO INDICATE WHAT THE STATES MUST
CONTEND WITH AS VIVIDLY AS THE HISTORY OF PARTICULAR LITIGATION.  THE
WELLS LITIGATION IN CALIFORNIA IS AN OBJECT LESSON IN CONFLICT.  WELLS
WAS SENTENCED TO DEATH BY THE CALIFORNIA TRIAL COURT, AND THIS JUDGMENT
WAS AFFIRMED BY THE SUPREME COURT OF CALIFORNIA IN AN OPINION WHICH
GAVE EXTENDED CONSIDERATION TO THE APPELLANT'S CONTENTIONS.  PEOPLE V.
WELLS, 33 CAL. 2D 330, 202 P.2D 53.  THIS COURT DENIED CERTIORARI,
WELLS V. CALIFORNIA, 338 U.S. 836.  WELLS, WITHOUT SEEKING HABEAS
CORPUS IN STATE COURT, THEN PETITIONED A FEDERAL DISTRICT JUDGE IN
CALIFORNIA FOR HABEAS CORPUS.  THAT JUDGE TOOK THE UNUSUAL STEP OF
PASSING ON THE MERITS OF THE CASE IN SPITE OF THE FACT THAT STATE
REMEDIES HAD NOT BEEN EXHAUSTED AND THE PRISONER HAD TO BE REMITTED TO
THE STATE COURTS.  THE DISTRICT JUDGE HELD ON THE MERITS THAT THE
CALIFORNIA COURTS HAD MISAPPLIED CALIFORNIA LAW.  EX PARTE WELLS, 90 F.
SUPP. 855.  WHEN THE PETITIONER APPLIED TO THE SUPREME COURT OF
CALIFORNIA FOR A WRIT OF HABEAS CORPUS, AS HE WAS INSTRUCTED TO DO BY
THE DISTRICT JUDGE, THAT COURT ADHERED TO ITS PRIOR VIEW AS TO WHAT THE
LAW OF CALIFORNIA WAS.  IN RE WELLS, 35 CAL. 2D 889, 221 P.2D 947. 
THIS COURT AGAIN DENIED CERTIORARI.  WELLS V. CALIFORNIA, 340 U.S.
937.  THEREAFTER THE SAME FEDERAL JUDGE, ALTHOUGH NOW CONCEDING THAT HE
MUST TAKE CALIFORNIA LAW FROM CALIFORNIA COURTS, VOIDED THE CONVICTION
ON A FEDERAL GROUND NOT EVEN MENTIONED IN HIS EARLIER OPINION.  EX
PARTE WELLS, 99 F. SUPP. 320.  THE OPINIONS OF THE DISTRICT JUDGE SHOW
THAT HE WAS WELL AWARE OF THE DIFFICULTIES PRESENTED BY THE PROCEDURE,
BUT FELT HE HAD NO ALTERNATIVE IN THE LIGHT OF THIS COURT'S DECISIONS. 
INDEED, HE HAS CONTRIBUTED THE LESSONS OF HIS OWN EXPERIENCE IN THIS
FIELD IN GOODMAN, USE AND ABUSE OF THE WRIT OF HABEAS CORPUS, 7 F.R.D.
313.  ANOTHER CARICATURE OF THE GREAT WRIT IN ACTION IS THE ADAMSON
LITIGATION IN CALIFORNIA.  ADAMSON WAS SENTENCED TO DEATH IN THE
CALIFORNIA TRIAL COURT IN 1944.  THE SUPREME COURT OF CALIFORNIA
AFFIRMED THE JUDGMENT OF CONVICTION IN 1946.  PEOPLE V. ADAMSON, 27
CAL. 2D 478, 165 P.2D 3.  THIS COURT GRANTED CERTIORARI, HEARD THE CASE
ON THE MERITS, AND AFFIRMED.   ADAMSON V. CALIFORNIA, 332 U.S. 46.  ON
JANUARY 30, 1948, JUST ONE WEEK BEFORE THE DATE SET FOR HIS EXECUTION,
ADAMSON PETITIONED THE SUPREME COURT OF CALIFORNIA FOR HABEAS CORPUS,
AND THIS PETITION WAS DENIED.  THIS COURT DENIED APPLICATION FOR A STAY
AND DENIED CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.  ADAMSON V.
CALIFORNIA, 333 U.S. 831.  LATER ON THE SAME DAY THAT THIS COURT DENIED
CERTIORARI, A JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA ISSUED A STAY OF EXECUTION OF THE
SENTENCE.  THEN THE DISTRICT COURT DENIED THE WRIT AND DENIED A
CERTIFICATE OF PROBABLE CAUSE TO APPEAL.  IN EX PARTE ADAMSON, 167 F.2D
996, A JUDGE OF THE UNITED STATES COURT OF APPEALS DENIED AN
APPLICATION FOR A CERTIFICATE OF PROBABLE CAUSE.  THIS COURT AGAIN
DENIED CERTIORARI.  EX PARTE ADAMSON, 334 U.S. 834.  EVEN THIS WAS NOT
THE END, HOWEVER, FOR IN 1949 WE FIND ADAMSON APPEALING TO THE SUPREME
COURT OF CALIFORNIA FROM A DENIAL OF AN APPLICATION FOR A WRIT OF CORAM
NOBIS.  THAT COURT THEN TOOK OCCASION TO QUESTION THE GOOD FAITH OF THE
PROCEEDINGS.  34 CAL. 2D 320, 338, 210 P.2D 13, 22.  CERTAINLY THE USE
OF THE FEDERAL COURTS AS AIDS IN SUCH DELAYING TACTICS AS ARE EVIDENCED
HERE DOES NOT ELEVATE THE STATURE OF THE WRIT OF HABEAS CORPUS.  WE
HAVE NO MYTHICAL ABUSE HERE BUT A VERY REAL PROBLEM OF HARASSMENT OF
THE STATE. 

FN12  DIXON V. DUFFY, 344 U.S. 143. 

FN13  CONFERENCE OF CHIEF JUSTICES - 1952, 25 STATE GOVERNMENT, NO.
11, P. 249 (NOV. 1952): 

"WHEREAS IT APPEARS THAT BY REASON OF CERTAIN PRINCIPLES ENUNCIATED
IN CERTAIN RECENT FEDERAL DECISIONS, A PERSON WHOSE CONVICTION IN A
CRIMINAL PROCEEDING IN A STATE COURT HAS THEREAFTER BEEN AFFIRMED BY
THE HIGHEST COURT OF THAT STATE, AND WHOSE PETITION FOR A REVIEW OF THE
STATE COURT'S PROCEEDINGS HAS BEEN DENIED BY THE SUPREME COURT OF THE
UNITED STATES, MAY NEVERTHELESS OBTAIN FROM A FEDERAL DISTRICT JUDGE OR
COURT, UNDER A WRIT OF HABEAS CORPUS, NEW, INDEPENDENT, AND SUCCESSIVE
HEARINGS BASED UPON A PETITION SUPPORTED ONLY BY THE OATH OF THE
PETITIONER AND CONTAINING ONLY SUCH STATEMENT OF FACTS AS WERE, OR
COULD HAVE BEEN, PRESENTED IN THE ORIGINAL PROCEEDINGS IN THE STATE
COURTS: 

"AND WHEREAS THE MULTIPLICITY OF THESE PROCEDURES AVAILABLE IN THE
INFERIOR FEDERAL COURTS TO SUCH CONVICTED PERSONS, AND THE CONSEQUENT
INORDINATE DELAYS IN THE ENFORCEMENT OF CRIMINAL JUSTICE AS THE RESULT
OF SAID FEDERAL DECISIONS WILL TEND TOWARD THE DILUTION OF THE JUDICIAL
SENSE OF RESPONSIBILITY, MAY CREATE GRAVE AND UNDESIRABLE CONFLICTS
BETWEEN FEDERAL AND STATE LAWS RESPECTING FAIR TRIAL AND DUE PROCESS,
AND MUST INEVITABLY LEAD TO THE IMPAIRMENT OF THE PUBLIC CONFIDENCE IN
OUR JUDICIAL INSTITUTIONS: 

"NOW THEREFORE BE IT RESOLVED THAT IT IS THE CONSIDERED VIEW OF THE
CHIEF JUSTICES OF THE STATES OF THE UNION, IN CONFERENCE DULY
ASSEMBLED, THAT ORDERLY FEDERAL PROCEDURE UNDER OUR DUAL SYSTEM OF
GOVERNMENT SHOULD REQUIRE THAT A FINAL JUDGMENT OF A STATE'S HIGHEST
COURT BE SUBJECT TO REVIEW OR REVERSAL ONLY BY THE SUPREME COURT OF THE
UNITED STATES. 

"BE IT FURTHER RESOLVED THAT THE CHAIRMAN OF THE CONFERENCE OF CHIEF
JUSTICES BE AUTHORIZED, AND HE IS HEREBY DIRECTED, TO APPOINT A SPECIAL
COMMITTEE TO GIVE STUDY TO THE GRAVE QUESTIONS AND POTENTIAL
COMPLICATIONS LIKELY TO ENSUE IF THE POWER TO REVIEW OR VOID STATE
COURT JUDGMENTS CONTINUES TO BE RECOGNIZED AS LYING IN ANY COURTS OF
THE FEDERAL JUDICIAL SYSTEM, SAVE AND EXCEPT THE SUPREME COURT OF THE
UNITED STATES:  AND THAT SAID SPECIAL COMMITTEE REPORT ITS FINDINGS AND
RECOMMENDATIONS AT THE NEXT REGULAR MEETING OF THE CONFERENCE." 

FN14  EX PARTE WATKINS, 3 PET. 193, 202. 

FN15  SUCH WAS THE VIEW EXPRESSED BY THE SOLICITOR GENERAL OF THE
UNITED STATES AT THE BAR OF THIS COURT DURING ARGUMENT OF MARTINEZ V.
NEELLY, AFFIRMED BY AN EQUALLY DIVIDED COURT, 344 U.S. 916.  HIS
ADVERSARY AGREED. 

FN16  PRICE V. JOHNSTON, SUPRA. 

FN17  IN PRICE V. JOHNSTON, SUPRA, THE LOWER FEDERAL COURTS WERE
REVERSED FOR DISMISSING THE CONVICT'S FOURTH PETITION.  SEE ALSO
STATISTICS AS TO REPEATERS IN NOTE 8, SUPRA. 

FN18  WHEN PETITIONER IN BROWN V. ALLEN SOUGHT CERTIORARI HERE AFTER
HIS APPEAL TO THE STATE COURT FAILED, TWO JUSTICES DISSENTED FROM THE
DENIAL OF CERTIORARI.  BROWN V. NORTH CAROLINA, 341 U.S. 943. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

THE FOUR PETITIONERS IN THESE CASES ARE UNDER SENTENCES OF DEATH
IMPOSED BY NORTH CAROLINA STATE COURTS.  ALL ARE NEGROES.  BROWN AND
SPELLER WERE CONVICTED OF RAPING WHITE WOMEN; THE TWO DANIELS, AGED 17
WHEN ARRESTED, WERE CONVICTED OF MURDERING A WHITE MAN.  THE STATE
SUPREME COURT AFFIRMED AND WE DENIED CERTIORARI IN ALL THE CASES. 
THESE ARE HABEAS CORPUS PROCEEDINGS WHICH CHALLENGE THE VALIDITY OF THE
CONVICTIONS. 

I AGREE WITH THE COURT THAT THE DISTRICT COURT HAD HABEAS CORPUS
JURISDICTION IN ALL THE CASES INCLUDING POWER TO RELEASE EITHER OR ALL
OF THE PRISONERS IF HELD AS A RESULT OF VIOLATION OF CONSTITUTIONAL
RIGHTS.  THIS I UNDERSTAND TO BE A REAFFIRMANCE OF THE PRINCIPLE
EMBODIED IN MOORE V. DEMPSEY, 261 U.S. 86.  I ALSO AGREE THAT IN THE
EXERCISE OF THIS JURISDICTION THE DISTRICT COURT HAD POWER TO HEAR AND
CONSIDER ALL RELEVANT FACTS BEARING ON THE CONSTITUTIONAL CONTENTIONS
ASSERTED IN THESE CASES.  I DISAGREE WITH THE COURT'S CONCLUSION THAT
PETITIONERS FAILED TO ESTABLISH THOSE CONTENTIONS.  THE CHIEF
CONSTITUTIONAL CLAIMS THROUGHOUT HAVE BEEN AND ARE:  (A) EXTORTED
CONFESSIONS WERE USED TO CONVICT; (B) NEGROES WERE DELIBERATELY
EXCLUDED FROM SERVICE AS JURORS ON ACCOUNT OF THEIR RACE.  FOR THE
FOLLOWING REASONS I WOULD REVERSE EACH OF THE JUDGMENTS DENYING HABEAS
CORPUS. 

FIRST.  IN DENYING HABEAS CORPUS IN ALL THE CASES, THE DISTRICT COURT
FELT CONSTRAINED TO GIVE AND DID GIVE WEIGHT TO OUR PRIOR DENIALS OF
CERTIORARI.  SO DID THE COURT OF APPEALS.  I AGREE WITH THE COURT THAT
THIS WAS ERROR BUT DISAGREE WITH ITS HOLDING THAT THE ERROR WAS
HARMLESS.  IT IS TRUE THAT AFTER CONSIDERING OUR DENIALS OF CERTIORARI
AS A REASON FOR REFUSING HABEAS CORPUS, THE DISTRICT JUDGE ATTEMPTED TO
PASS UPON THE CONSTITUTIONAL QUESTIONS JUST AS IF WE HAD NOT DECLINED
TO REVIEW THE CONVICTIONS.  BUT THE RECORD SHOWS THE DIFFICULTY OF HIS
ATTEMPT TO ERASE THIS FACT FROM HIS MIND AND I AM NOT WILLING TO ACT ON
THE ASSUMPTION THAT HE SUCCEEDED IN DOING SO.  BOTH THE JURY AND
CONFESSION QUESTIONS RAISED IN THESE DEATH CASES HAVE ENTIRELY TOO MUCH
RECORD SUPPORT TO REFUSE RELIEF ON SUCH A QUESTIONABLE ASSUMPTION.  I
WOULD THEREFORE REVERSE AND REMAND ALL THE CASES FOR THE DISTRICT JUDGE
TO CONSIDER AND APPRAISE THE ISSUES FREE FROM HIS ERRONEOUS BELIEF THAT
THIS COURT DECIDED THEM AGAINST PETITIONERS BY DENYING CERTIORARI. 

SECOND.  BROWN V. ALLEN, NO. 32.  BROWN'S DEATH SENTENCE FOR RAPE
RESTS ON AN INDICTMENT RETURNED BY A FORSYTH COUNTY GRAND JURY.  WE
RECENTLY REVERSED FIVE NORTH CAROLINA CONVICTIONS ON THE GROUND THAT
THERE HAD BEEN A SYSTEMATIC RACIAL EXCLUSION OF NEGROES FROM FORSYTH
COUNTY'S JURIES FOR MANY YEARS PRIOR TO 1947.  BRUNSON V. NORTH
CAROLINA, 333 U.S. 851 (1948).  UPON A REVIEW OF THE EVIDENCE IN
BROWN'S HABEAS CORPUS PROCEEDING THIS COURT HOLDS THAT FORSYTH COUNTY'S
DISCRIMINATORY JURY PRACTICE WAS ABANDONED IN 1949 WHEN THE OLD JURY
BOXES WERE REFILLED.  THE TESTIMONY ON WHICH THE COURT RELIES IS THAT
THE NAMES PUT IN THE 1949 BOX WERE TAKEN INDISCRIMINATELY FROM THE LIST
OF COUNTY TAXPAYERS, 16% OF WHOM WERE NEGROES, 84% WHITES.  OTHER
EVIDENCE RELIED ON WAS THAT SINCE 1949 FOUR TO SEVEN NEGROES HAVE BEEN
INCLUDED IN EACH JURY VENIRE OF 44 TO 60.  THE CONCRETE EFFECT OF THE
NEW BOX IN THIS CASE WAS STATED BY THE NORTH CAROLINA SUPREME COURT TO
BE THIS: 

"ONE NEGRO WOMAN SERVED ON THE GRAND JURY AND AT LEAST ONE
PROSPECTIVE NEGRO JUROR WAS TENDERED TO THE DEFENDANT FOR THE PETIT
JURY AND WAS EXCUSED OR REJECTED BY HIS COUNSEL."  STATE V. BROWN, 233
N.C. 202, 205, 63 S.E.2D 99, 101. 

THE FOREGOING EVIDENCE DOES SHOW A PARTIAL ABANDONMENT OF THE OLD
DISCRIMINATORY JURY PRACTICES - SINCE 1949 A SMALL NUMBER OF NEGROES
HAVE REGULARLY BEEN SUMMONED FOR JURY DUTY.  BUT PROOF OF A LESSER
DEGREE OF DISCRIMINATION NOW THAN BEFORE 1949 IS INSUFFICIENT TO SHOW
THAT IMPARTIAL SELECTION OF JURORS WHICH THE CONSTITUTION REQUIRES. 
NEGROES ARE ABOUT ONE-THIRD OF FORSYTH COUNTY'S POPULATION. 
CONSEQUENTLY, THE NUMBER OF NEGROES NOW CALLED FOR JURY DUTY IS STILL
GLARINGLY DISPROPORTIONATE TO THEIR PERCENTAGE OF CITIZENSHIP.  IT IS
NOT POSSIBLE TO ATTRIBUTE EITHER THE PRE-1949 OR THE POST-1949
DISPROPORTIONS ENTIRELY TO ACCIDENT.  AND THE STATE HAS NOT PRODUCED
EVIDENCE TO SHOW THAT THE PARTIAL CONTINUATION OF THE LONG-STANDING
FAILURE TO USE NEGRO JURORS IS DUE TO SOME CAUSE OTHER THAN RACIAL
DISCRIMINATION.  CF. PATTON V. MISSISSIPPI, 332 U.S. 463, 466, 468
469.  RECOGNIZING THIS DIFFICULTY THE COURT SANCTIONS THE CONTINUED
DISPROPORTIONS BECAUSE THEY WERE THE RESULT OF SELECTING JURORS
EXCLUSIVELY FROM THE COUNTY TAX LIST.  BUT EVEN THIS QUESTIONABLE
METHOD OF SELECTION FALLS SHORT OF SHOWING A GENUINE ABANDONMENT OF OLD
DISCRIMINATORY PRACTICES.  CERTAINLY DISCRIMINATORY RESULTS REMAINED. 
I DO NOT BELIEVE THE COURT SHOULD PERMIT THIS TAX LIST TECHNIQUE TO BE
TREATED AS A COMPLETE NEUTRALIZER OF RACIAL DISCRIMINATION. 

THIRD.  SPELLER V. ALLEN, NO. 22.  THE JURY THAT TRIED SPELLER WAS
DRAWN FROM VANCE COUNTY, NORTH CAROLINA.  BEFORE THIS TRIAL NO NEGRO
HAD SERVED ON A VANCE COUNTY JURY IN RECENT YEARS.  NO NEGRO HAD EVEN
BEEN SUMMONED.  THAT THIS WAS THE RESULT OF UNCONSTITUTIONAL
DISCRIMINATION IS MADE CLEAR BY THE FACT THAT NEGROES CONSTITUTE 45% OF
THE COUNTY'S POPULATION AND 38% OF ITS TAXPAYERS.  THE COURT HOLDS,
HOWEVER, THAT THIS DISCRIMINATION WAS COMPLETELY CURED BY REFILLING THE
JURY BOX WITH THE NAMES OF 145 NEGROES AND 1,981 WHITES.  SUCH A SMALL
NUMBER OF NEGRO JURORS IS DIFFICULT TO EXPLAIN EXCEPT ON THE BASIS OF
RACIAL DISCRIMINATION.  THE COURT ATTEMPTS TO EXPLAIN IT BY RELYING
UPON ANOTHER DISCRIMINATION, ONE WHICH CAN HARDLY BE CLASSIFIED AS MOST
APPEALING IN A DEMOCRATIC SOCIETY.  WHAT THE COURT APPARENTLY FINDS IS
THAT NEGROES WERE EXCLUDED FROM THIS NEW JURY BOX NOT BECAUSE THEY WERE
NEGROES BUT BECAUSE THEY HAPPENED TO OWN LESS PROPERTY THAN WHITE
PEOPLE.  IN OTHER WORDS, THE COURT FINDS AS A FACT THAT THE
DISCRIMINATION, IF ANY, WAS BASED NOT ON RACE BUT ON WEALTH - THE
JURORS WERE SELECTED FROM TAXPAYERS WITH "THE MOST PROPERTY."  THE
COURT THEN EVEN DECLINES TO PASS ON THE CONSTITUTIONALITY OF THIS
PROPERTY DISCRIMINATION ON THE GROUND THAT PETITIONER'S OBJECTIONS WERE
BASED ON RACIAL, NOT ON PROPERTY, DISCRIMINATIONS.  I CANNOT AGREE TO
SUCH A NARROW RESTRICTION OF PETITIONER'S OBJECTIONS TO THE JURY THAT
BROUGHT IN THE DEATH VERDICT.  JURY DISCRIMINATIONS HERE SEEM PLAIN TO
ME AND I WOULD NOT BY-PASS THEM. 

FOURTH.  DANIELS V. ALLEN, NO. 20.  HERE ALSO EVIDENCE ESTABLISHES AN
UNLAWFUL EXCLUSION OF NEGROES FROM JURIES BECAUSE OF RACE.  THE STATE
SUPREME COURT REFUSED TO REVIEW THIS EVIDENCE ON STATE PROCEDURAL
GROUNDS.  ABSENCE OF STATE COURT REVIEW ON THIS GROUND IS NOW HELD TO
CUT OFF REVIEW IN FEDERAL HABEAS CORPUS PROCEEDINGS.  BUT IN THE TWO
PRECEDING CASES WHERE THE STATE SUPREME COURT DID REVIEW THE EVIDENCE,
THIS COURT HAS ALSO REVIEWED IT.  I FIND IT DIFFICULT TO AGREE WITH THE
SOUNDNESS OF A PHILOSOPHY WHICH PROMPTS THIS COURT TO GRANT A SECOND
REVIEW WHERE THE STATE HAS GRANTED ONE BUT TO DENY ANY REVIEW AT ALL
WHERE THE STATE HAS GRANTED NONE. 

THE FOLLOWING FACTS INDICATE THE OBVIOUSNESS OF DISCRIMINATORY NEGRO
EXCLUSION FROM JURY SERVICE IN PITT COUNTY WHERE THIS CASE WAS TRIED. 

NEGROES CONSTITUTED ABOUT 47% OF THE POPULATION OF THE COUNTY AND
ABOUT ONE-THIRD OF THE TAXPAYERS.  BUT THE JURY BOX OF 10,000 NAMES
INCLUDED AT MOST 185 NEGORES.  AND UP TO AND INCLUDING THE DANIELS'
TRIAL NO NEGRO HAD EVER SERVED ON A GRAND JURY IN MODERN TIMES. 
PETITIONERS MADE OBJECTION IN AMPLE TIME TO JURIES SO DISCRIMINATORILY
CHOSEN. 

THE COURT'S CONCLUSION NOT TO CONSIDER AND ACT ON THIS MANIFEST
RACIAL DISCRIMINATION RESTS ON THESE FACTS:  AFTER PETITIONERS' DEATH
SENTENCE THEY WERE GRANTED AN APPEAL IN FORMA PAUPERIS TO THE STATE
SUPREME COURT.  JUNE 6TH THE TRIAL JUDGE GRANTED 60 DAYS FOR THEIR
LAWYERS TO MAKE UP AND SERVE THEIR "STATEMENT OF CASE ON APPEAL." 
PREPARATION OF THIS STATEMENT (COMPARABLE TO A BILL OF EXCEPTIONS)
CONSUMED VALUABLE TIME BECAUSE OF DIFFICULTY IN GETTING THE
STENOGRAPHIC TRANSCRIPT.  ON COMPLETION PETITIONERS' COUNSEL ON FRIDAY,
AUGUST 5TH, CALLED THE PROSECUTING ATTORNEY'S OFFICE TO SERVE HIM BUT
FOUND HE WAS OUT OF TOWN.  ACCORDING TO THE RECORD HE AND HIS FAMILY
WERE AWAY FOR THE WEEKEND AT A BEACH.  THEY RETURNED HOME SUNDAY, BUT
HE DID NOT GET BACK TO HIS OFFICE UNTIL MONDAY, AUGUST 8TH.  HAD THE
STATEMENT BEEN DELIVERED AT HIS OFFICE BY A SHERIFF ON FRIDAY THE 60TH
DAY, APPARENTLY THERE WOULD HAVE BEEN COMPLIANCE WITH NORTH CAROLINA
LAW.  INSTEAD IT WAS RECEIPTED FOR AT HIS OFFICE ON THE 61ST DAY, TWO
DAYS BEFORE HIS RETURN FROM THE BEACH.  IN THE STATE SUPREME COURT THE
ATTORNEY GENERAL MOVED TO DISMISS ON THE GROUND THAT THE NOTICE WAS ONE
DAY LATE.  ALTHOUGH ADMITTEDLY THE COURT HAD DISCRETIONARY AUTHORITY TO
HEAR THE APPEAL, IT DISMISSED THE CASE.   PETITIONERS WERE THEREBY
PREVENTED FROM ARGUING THE POINT OF RACIAL DISCRIMINATION AND
CONSEQUENTLY IT HAS NEVER BEEN PASSED ON BY AN APPELLATE COURT.  THIS
DENIAL OF STATE APPELLATE REVIEW PLUS THE OBVIOUS RACIAL DISCRIMINATION
THUS LEFT UNCORRECTED SHOULD BE ENOUGH TO MAKE ONE OF THOSE
"EXTRAORDINARY SITUATIONS" WHICH THE COURT SAYS AUTHORIZES FEDERAL
COURTS TO PROTECT THE CONSTITUTIONAL RIGHTS OF STATE PRISONERS.  CF.
FRISBIE V. COLLINS, 342 U.S. 519, 520-521.    THE COURT THINKS THAT TO
REVIEW THIS QUESTION AND GRANT PETITIONERS THE PROTECTIONS GUARANTEED
BY THE CONSTITUTION WOULD "SUBVERT THE ENTIRE SYSTEM OF STATE CRIMINAL
JUSTICE AND DESTROY STATE ENERGY IN THE DETECTION AND PUNISHMENT OF
CRIME."  I CANNOT AGREE.  STATE SYSTEMS ARE NOT SO FEEBLE.  AND THE
OBJECT OF HABEAS CORPUS IS TO SEARCH RECORDS TO PREVENT ILLEGAL
IMPRISONMENTS.  TO HOLD IT UNAVAILABLE UNDER THE CIRCUMSTANCES HERE IS
TO DEGRADE IT.  I THINK MOORE V. DEMPSEY, 261 U.S. 86, FORBIDS THIS. 
IN THAT CASE NEGROES HAD BEEN CONVICTED AND SENTENCED TO DEATH BY AN
ALL-WHITE JURY SELECTED UNDER A PRACTICE OF SYSTEMATIC EXCLUSION OF
NEGROES FROM JURIES.  THE STATE SUPREME COURT HAD REFUSED TO CONSIDER
THIS DISCRIMINATION ON THE GROUND THAT THE OBJECTION TO IT HAD COME TOO
LATE.  THIS COURT HAD DENIED CERTIORARI.  LATER A FEDERAL DISTRICT
COURT SUMMARILY DISMISSED A PETITION FOR HABEAS CORPUS ALLEGING THE
FOREGOING AND OTHER VERY SERIOUS ACTS OF TRIAL UNFAIRNESS, ALL OF WHICH
HAD BEEN URGED UPON THIS COURT IN THE PRIOR CERTIORARI PETITION.  THIS
COURT NEVERTHELESS HELD THAT THE DISTRICT COURT HAD COMMITTED ERROR IN
REFUSING TO EXAMINE THE FACTS ALLEGED.  I READ MOORE V. DEMPSEY, SUPRA,
AS STANDING FOR THE PRINCIPLE THAT IT IS NEVER TOO LATE FOR COURTS IN
HABEAS CORPUS PROCEEDINGS TO LOOK STRAIGHT THROUGH PROCEDURAL SCREENS
IN ORDER TO PREVENT FORFEITURE OF LIFE OR LIBERTY IN FLAGRANT DEFIANCE
OF THE CONSTITUTION.  CF. UNITED STATES V. KENNEDY, 157 F.2D 811, 813. 
PERHAPS THERE IS NO MORE EXALTED JUDICIAL FUNCTION.  I AM WILLING TO
AGREE THAT IT SHOULD NOT BE EXERCISED IN CASES LIKE THESE EXCEPT UNDER
SPECIAL CIRCUMSTANCES OR IN EXTRAORDINARY SITUATIONS.  BUT I CANNOT
JOIN IN ANY OPINION THAT ATTEMPTS TO CONFINE THE GREAT WRIT WITHIN
RIGID FORMALISTIC BOUNDARIES. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

                               NOS. 22 AND 32. 

THE COURT IS HOLDING TODAY THAT A DENIAL OF CERTIORARI IN HABEAS
CORPUS CASES IS WITHOUT SUBSTANTIVE SIGNIFICANCE.  THE COURT OF APPEALS
SUSTAINED DENIALS OF APPLICATIONS FOR WRITS OF HABEAS CORPUS CHIEFLY
BECAUSE IT TREATED OUR DENIAL OF A PETITION FOR CERTIORARI FROM THE
ORGINAL CONVICTION IN EACH OF THESE CASES AS A REVIEW ON THE MERITS AND
A REJECTION OF THE CONSTITUTIONAL CLAIMS ASSERTED BY THESE
PETITIONERS.  IN SHORT, WHILE THE ONLY SIGNIFICANCE OF THE DENIALS OF
CERTIORARI WAS A REFUSAL TO REVIEW, THE COURT OF APPEALS FOR ALL
PRACTICAL PURPOSES, THOUGH DISAVOWING THE FULL TECHNICAL IMPORT OF RES
JUDICATA, TREATED SUBSTANTIVELY EMPTY DENIALS AS THOUGH THIS COURT HAD
EXAMINED AND APPROVED THE HOLDINGS OF THE SUPREME COURT OF NORTH
CAROLINA THAT THERE WAS NO PURPOSEFUL DISCRIMINATION AGAINST NEGROES IN
THE SELECTION OF JURIES IN THESE CASES. 

THIS COURT COULD HAVE REACHED THE CONSTITUTIONAL CLAIMS IN
CONTROVERSY HAD IT SEEN FIT TO REVIEW THE CASES.  IT DECLINED TO DO SO,
AND THAT IS ALL THAT THE ORDERS IN 340 U.S. 835 AND 341 U.S. 943
SIGNIFY.  ACCORDINGLY, THE PROCEEDINGS WERE LEFT PRECISELY AS THOUGH
THE PETITIONS FOR CERTIORARI HAD NOT BEEN FILED HERE AND HABEAS CORPUS
HAD BEEN BROUGHT INITIALLY IN THE DISTRICT COURT, AS IN FRISBIE V.
COLLINS, 342 U.S. 519.  IF THAT HAD BEEN THE CASE, COULD IT BE HELD
THAT THE DISTRICT COURT WAS FORECLOSED FROM GOING INTO THE MERITS AND
WAS BARRED FROM DETERMINING WHETHER THESE CASES CAME WITHIN OUR
DECISIONS FINDING SYSTEMATIC DISCRIMINATION AGAINST NEGROES IN FIVE
NORTH CAROLINA TRIALS?  BRUNSON V. NORTH CAROLINA, 333 U.S. 851. 

SUPPOSE THAT THE DISTRICT COURT IN THESE CIRCUMSTANCES HAD FOUND
AGAINST BROWN AND SPELLER.  WHAT BASIS IS THERE FOR ASSUMING THAT ON
APPEAL THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, WITH ITS
SPECIALIZED LOCAL KNOWLEDGE ABOUT SUCH MATTERS, WOULD NOT HAVE DECIDED
IN FAVOR OF THE PETITIONERS?  AND WHAT BASIS IN REASON HAVE WE FOR
ASSUMING, IF THE CASES HAD COME HERE WITH A POWERFUL OPINION FROM JUDGE
PARKER, LET US SAY, FINDING THAT THERE WAS SYSTEMATIC DISCRIMINATION,
THAT THIS COURT WOULD HAVE DEEMED IT APPROPRIATE TO REVIEW SO WEIGHTY A
CONCLUSION, OR, IF WE HAD TAKEN THE CASE, THAT WE WOULD HAVE FOUND THE
FACTS AND THEIR MEANING TO BE DIFFERENT FROM THOSE WHICH THE COURT OF
APPEALS FOR THE FOURTH CIRCUIT FOUND?  SUCH ASSUMPTIONS ARE
UNWARRANTED, ESPECIALLY IN LIGHT OF THE IMPRESSIVE SHOWING BY MR.
JUSTICE BLACK THAT IN FACT THERE WAS UNCONSTITUTIONAL DISCRIMINATION IN
THE MAKE-UP OF THE JURIES IN THESE TWO CASES WHERE LIFE IS AT STAKE. 

I CANNOT PROTEST TOO STRONGLY AGAINST AFFIRMING A DECISION OF THE
COURT OF APPEALS PATENTLY BASED ON THE GROUND THAT THAT COURT WAS
FORECLOSED ON PROCEDURAL GROUNDS FROM CONSIDERING THE MERITS OF
CONSTITUTIONAL CLAIMS, WHEN WE NOW DECIDE THAT THE COURT WAS WRONG IN
BELIEVING THAT IT WAS SO FORECLOSED.  THE AFFIRMANCE BY THIS COURT OF
THE DISTRICT COURT'S DENIAL OF WRITS OF HABEAS CORPUS IN THESE CASES IS
ALL THE MORE VULNERABLE IN THAT THIS COURT, WITHOUT GUIDANCE FROM THE
COURT OF APPEALS, PROCEEDS TO CONSIDER THE MERITS OF THE CONSTITUTIONAL
CLAIM.  THIS COURT CONCLUDES THAT THERE WAS NOT A SYSTEMATIC
DISCRIMINATION IN KEEPING NEGROES OFF JURIES.  IF THIS COURT DEEMED IT
NECESSARY TO CONSIDER THE MERITS, THE MERITS SHOULD EQUALLY HAVE BEEN
OPEN TO THE COURT OF APPEALS.  AS I HAVE ALREADY INDICATED, THAT COURT
IS FAR BETTER SITUATED THAN WE ARE TO ASSESS THE CIRCUMSTANCES OF JURY
SELECTION IN NORTH CAROLINA AND TO DRAW THE APPROPRIATE INFERENCES. 

                               NO. 20. 

IN THIS CASE THE COURT OF APPEALS FOR THE FOURTH CIRCUIT ALSO
SUSTAINED THE DISTRICT COURT IN DISMISSING APPLICATIONS FOR WRITS OF
HABEAS CORPUS BASED ON THE CLAIM BY THE TWO PETITIONERS HERE THAT THEIR
CONVICTIONS FOR MURDER IN THE NORTH CAROLINA COURT WERE VITIATED BY
DISREGARD OF RIGHTS GUARANTEED BY THE UNITED STATES CONSTITUTION.  BUT
THIS CASE IS UNLIKE THE BROWN AND SPELLER CASES; HERE THE COURT OF
APPEALS DID NOT FIND ITSELF FORECLOSED TO CONSIDER THE MERITS BY
DEEMING ITSELF BOUND BY AN ADJUDICATION OF THE MERITS IN THE SUPREME
COURT OF NORTH CAROLINA FOLLOWED BY A DENIAL OF A PETITION FOR
CERTIORARI IN THIS COURT.  (FN1)  AND THE COURT HERE DOES NOT SUSTAIN
THE DISTRICT COURT'S DISMISSAL BY CONTENDING THAT THE NORTH CAROLINA
SUPREME COURT HAD ALREADY ADJUDICATED THE MERITS, NOR DOES THIS COURT
PASS ON THE MERITS. 

THIS COURT SUSTAINS THE LOWER COURTS ON THE GROUND THAT THE RIGHT OF
REVIEW ON THE MERITS WAS FORECLOSED BECAUSE THE PETITIONERS LOST THEIR
RIGHT OF REVIEW THROUGH FAILURE TO COMPLY WITH THE REQUIREMENTS OF
NORTH CAROLINA LAW FOR PERFECTING AN APPEAL IN THE SUPREME COURT OF
NORTH CAROLINA.  STATE V. DANIELS, 231 N.C. 17, 341, 56 S.E.2D 2, 646;
ID., 232 N.C.  196, 59 S.E.2D 430. 

WE WERE GIVEN TO UNDERSTAND ON THE ARGUMENT THAT IF PETITIONERS'
LAWYER HAD MAILED HIS "STATEMENT OF CASE ON APPEAL" ON THE 60TH DAY AND
THE PROSECUTOR'S OFFICE HAD RECEIVED IT ON THE 61ST DAY THE LAW OF
NORTH CAROLINA WOULD CLEARLY HAVE BEEN COMPLIED WITH, BUT BECAUSE HE
DELIVERED IT BY HAND ON THE 61ST DAY ALL OPPORTUNITIES FOR APPEAL, BOTH
IN THE NORTH CAROLINA COURTS AND IN THE FEDERAL COURTS, ARE CUT OFF
ALTHOUGH THE NORTH CAROLINA COURTS HAD DISCRETION TO HEAR THIS APPEAL. 
FOR ME IT IS IMPORTANT TO EMPHASIZE THE FACT THAT NORTH CAROLINA DOES
NOT HAVE A FIXED PERIOD FOR TAKING AN APPEAL.  THE DECISIVE QUESTION IS
WHETHER A REFUSAL TO EXERCISE A DISCRETION WHICH THE LEGISLATURE OF
NORTH CAROLINA HAS VESTED IN ITS JUDGES IS AN ACT SO ARBITRARY AND SO
CRUEL IN ITS OPERATION, CONSIDERING THAT LIFE IS AT STAKE, THAT IN THE
CIRCUMSTANCES OF THIS CASE IT CONSTITUTES A DENIAL OF DUE PROCESS IN
ITS RUDIMENTARY PROCEDURAL ASPECT. 

FOR HERE WE ARE NOT DEALING WITH A FRIVOLOUS OR EVEN A TENUOUS CLAIM
OF A DENIAL OF RIGHTS GUARANTEED UNDER THE UNITED STATES CONSTITUTION
IN THE PROCEEDINGS THAT LED TO A DEATH SENTENCE.  IT SUFFICES TO QUOTE
WHAT WAS SAID IN DISSENT BY CIRCUIT JUDGE SOPER, ONE OF THE MOST
EXPERIENCED AND HARDHEADED OF FEDERAL JUDGES: 

"THERE IS NO ATTEMPT ON THE PART OF THE STATE OF NORTH CAROLINA IN
THE PENDING APPEAL TO SHOW THAT THERE WAS NOT A GROSS VIOLATION OF THE
CONSTITUTIONAL RIGHTS OF THE PRISONERS IN THE TRIAL COURT."  DANIELS V.
ALLEN, 192 F.2D 763, 770, 771. 

AND THIS STATEMENT WAS NOT QUESTIONED BY THE COURT OF APPEALS. 

THE BASIC REASON FOR CLOSING BOTH THE FEDERAL AND STATE COURTS TO THE
PETITIONERS ON SUCH SERIOUS CLAIMS AND UNDER THESE CIRCUMSTANCES IS THE
JEJUNE ABSTRACTION THAT HABEAS CORPUS CANNOT BE USED FOR AN APPEAL. 
JUDGE SOPER DEALT WITH THE DECEPTIVENESS OF THIS FORMULA BY QUOTING
WHAT JUDGE LEARNED HAND HAD FOUND TO BE THE TRUTH IN REGARD TO THIS
GENERALITY THIRTY YEARS AGO: 

"WE SHALL NOT DISCUSS AT LENGTH THE OCCASIONS WHICH WILL JUSTIFY
RESORT TO THE WRIT, WHERE THE OBJECTION HAS BEEN OPEN ON APPEAL.  AFTER
A SOMEWHAT EXTENSIVE REVIEW OF THE AUTHORITIES TWENTY-FOUR YEARS AGO, I
CONCLUDED THAT THE LAW WAS IN GREAT CONFUSION; AND THE DECISIONS SINCE
THEN HAVE SCARCELY TENDED TO SHARPEN THE LINES.  WE CAN FIND NO MORE
DEFINITE RULE THAN THAT THE WRIT IS AVAILABLE, NOT ONLY TO DETERMINE
POINTS OF JURISDICTION, STRICTI JURIS, AND CONSTITUTIONAL QUESTIONS;
BUT WHENEVER ELSE RESORT TO IT IS NECESSARY TO PREVENT A COMPLETE
MISCARRIAGE OF JUSTICE."  KULICK V. KENNEDY, 157 F.2D 811, 813. 

THE REASONS FOR FINDING THAT WE HAVE HERE SO COMPLETE A MISCARRIAGE
OF JUSTICE ARE SO POWERFULLY STATED BY JUDGE SOPER THAT I CANNOT DO
BETTER THAN TO ADOPT THEM AS MY OWN: 

"THE TRIAL COURT'S STRICT APPLICATION OF THE PROCEDURAL RULES IN A
CAPITAL CASE IN THESE TWO INSTANCES OF RULINGS BY THAT COURT PREVENTING
DEFENDANTS' ATTORNEYS FROM RAISING THE JURY QUESTION CAN HARDLY BE
APPROVED AS A PROPER EXERCISE OF JUDICIAL DISCRETION.  THE DEFENDANTS
MERELY ASKED FOR RULINGS WHICH WOULD HAVE ENABLED THEM TO OBTAIN A
REVIEW BY THE HIGHEST COURT OF THE STATE OF THE TRIAL COURT'S ACTION ON
A GRAVE CONSTITUTIONAL QUESTION; AND THE RELIEF COULD HAVE BEEN GRANTED
WITHOUT INTERFERING WITH THE ENFORCEMENT OF THE CRIMINAL LAWS OF THE
STATE.  IT CAN HARDLY BE DOUBTED THAT THE DECISION IN EACH CASE LAY
WITHIN THE DISCRETION OF THE JUDGE, BUT ONCE IT WAS TAKEN, THE SUPREME
COURT OF THE STATE DEEMED ITSELF POWERLESS TO INTERFERE.  THUS THERE IS
PRESENTED AN IMPASSE WHICH CAN BE SURMOUNTED ONLY BY A PROCEEDING LIKE
THAT BEFORE THIS COURT.  WE HAVE BEEN TOLD TIME AND AGAIN THAT
LEGALISTIC REQUIREMENTS SHOULD BE DISREGARDED IN EXAMINING APPLICATIONS
FOR THE WRIT OF HABEAS CORPUS AND THE RULES HAVE BEEN RELAXED IN CASES
WHEN THE TRIAL COURT HAS ACTED UNDER DURESS OR PERJURED TESTIMONY HAS
BEEN KNOWINGLY USED BY THE PROSECUTION, OR A PLEA OF GUILTY HAS BEEN
OBTAINED BY TRICK, OR THE DEFENDANT HAS BEEN INADEQUATELY REPRESENTED
BY COUNSEL.  (FN2) HAWK V. OLSON, 326 U.S. 271  ...  ; DARR V. BURFORD,
339 U.S. 200, 203  ...  .  IT IS DIFFICULT TO SEE ANY MATERIAL
DISTINCTION IN PRACTICAL EFFECT BETWEEN THESE CIRCUMSTANCES AND THE
PLIGHT OF THE PRISONERS IN THE PENDING CASE WHO HAVE BEEN CAUGHT IN THE
TECHNICALITIES OF LOCAL PROCEDURE AND IN CONSEQUENCE HAVE BEEN DENIED
THEIR CONSTITUTIONAL RIGHT."  192 F.2D, AT 773. 

FN1  ALTHOUGH THERE WAS SUCH A DENIAL IN THIS COURT, NO PETITION FOR
CERTIORARI WAS SOUGHT FROM THE LATEST OF THE THREE DECISIONS BY THE
NORTH CAROLINA SUPREME COURT PRIOR TO THE INITIATION OF THE HABEAS
CORPUS PROCEEDINGS NOW UNDER REVIEW.  IT IS NOT INAPPROPRIATE TO SAY
THAT THE CERTIORARI THAT WAS DENIED HERE AFFORDS A GOOD ILLUSTRATION OF
THE REASON FOR HOLDING THAT NO LEGAL SIGNIFICANCE ATTACHES TO SUCH A
DENIAL.  IT WOULD BE BEYOND THE WIT OF THE WISEST PANEL OF JUDGES TO
DETERMINE ON WHAT GROUND, FOR WHAT REASON, THE PETITION WAS DENIED. 
THE PAPERS IN THE CASE DO NOT AFFORD A RATIONAL FOUNDATION FOR SAYING
THAT IT WAS THIS GROUND RATHER THAN THAT.  THE CONFLICTING BASES FOR
REJECTION NOT ONLY MAY WELL HAVE INFLUENCED DIFFERENT MEMBERS OF THE
COURT; IT IS NOT AT ALL UNLIKELY THAT INDIVIDUAL MEMBERS OF THE COURT
DID NOT FEEL IT NECESSARY TO DETERMINE WHICH OF TWO GROUNDS WAS
DECISIVE. 

FN2  THIS LANGUAGE IS OF COURSE NOT TO BE READ TO MEAN THAT
CONSTITUTIONAL RIGHTS MAY NOT BE FREELY WAIVED.  UNDER APPROPRIATE
CIRCUMSTANCES, CONSCIOUS FAILURE TO APPEAL MAY CONSTITUTE SUCH WAIVER;
THE VERY QUESTION HERE IS WHETHER THERE HAS BEEN A FAILURE TO APPEAL. 
..END :













UNITED STATES, SMITH V. BALDI 344 U.S. 561 


NO. 31.  ARGUED APRIL 29-30, 1952 - REARGUED OCTOBER 13-14, 1952 -
DECIDED FEBRUARY 9, 1953 - 192 F.2D 540, AFFIRMED. 


1.  A DENIAL OF CERTIORARI BY THIS COURT (WITH NO STATEMENT OF REASONS
THEREFOR) TO REVIEW A DECISION OF A STATE SUPREME COURT AFFIRMING A
CONVICTION IN A CRIMINAL PROSECUTION SHOULD BE GIVEN NO WEIGHT IN
SUBSEQUENT HABEAS CORPUS PROCEEDINGS IN A FEDERAL COURT.  BROWN V.
ALLEN, ANTE, P. 443.   P. 565. 

2.  PETITIONER, SENTENCED TO DEATH BY A STATE COURT FOR MURDER, WAS
NOT DENIED DUE PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT BY
VIRTUE OF HIS HAVING BEEN ALLOWED TO PLEAD GUILTY WITHOUT THERE FIRST
HAVING BEEN A FORMAL ADJUDICATION OF HIS SANITY, IN VIEW OF THE
PROCEDURE AVAILABLE FOR SUBSEQUENTLY WITHDRAWING THE PLEA OF GUILTY AND
ENTERING A PLEA OF "NOT GUILTY BECAUSE OF INSANITY."   PP. 565-567. 

3.  PETITIONER WAS NOT DENIED DUE PROCESS BY REASON OF HIS HAVING
BEEN SUMMARILY ADVISED BY COURT-DESIGNATED COUNSEL AT HIS ARRAIGNMENT
TO PLEAD "NOT GUILTY," SINCE THERE WAS AMPLE OPPORTUNITY LATER TO
RECTIFY THE ERROR, IF THERE WAS ERROR, BY A HEARING ON INSANITY.  PP.
567-568. 

4.  IT WAS NOT THE CONSTITUTIONAL DUTY OF THE STATE, EVEN UPON
REQUEST, TO APPOINT A PSYCHIATRIST TO MAKE A PRETRIAL EXAMINATION INTO
PETITIONER'S SANITY.  P. 568. 

5.  PETITIONER'S CONTENTION THAT AN INSANE MAN MAY NOT BE EXECUTED
ASSUMES ERRONEOUSLY THAT HE HAS BEEN FOUND TO BE INSANE.  THE LAW OF
PENNSYLVANIA, AS ANNOUNCED BY THE STATE SUPREME COURT, PROTECTS AGAINST
EXECUTION OF THE INSANE.  PP. 568-569. 

6.  UPON THE RECORD IN THIS CASE, THE FEDERAL DISTRICT COURT, ON
PETITIONER'S APPLICATION FOR HABEAS CORPUS, DID NOT ERR IN REFUSING TO
HOLD A PLENARY HEARING FOR THE DETERMINATION OF PETITIONER'S SANITY. 
PP. 569-570. 

7.  AS THE STATE TRIAL AND APPELLATE 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, PETITIONER'S SENTENCE DOES NOT VIOLATE DUE
PROCESS.  P. 570. 

UNITED STATES EX REL. SMITH V. BALDI, SUPERINTENDENT, PHILADELPHIA
COUNTY PRISON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PETITIONER, A STATE PRISONER, APPLIED TO THE DISTRICT COURT FOR
HABEAS CORPUS; AND HIS APPLICATION WAS DISMISSED.  96 F. SUPP. 100. 
THE COURT OF APPEALS AFFIRMED.  192 F.2D 540.  THIS COURT GRANTED
CERTIORARI.  343 U.S. 903.  AFFIRMED, P. 570. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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 OF
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. 

WHILE THE DOCKET ENTRIES AS 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 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 "AFTER HEARING TESTIMONY BOTH FOR
THE COMMONWEALTH AND THE DEFENDANT  ... THE DEFENDANT IS ADJUDGED
GUILTY OF MURDER IN THE 1ST DEGREE.  (FN1)  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. 

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.  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 119, 71 A.2D 107, AT 120.  IMMEDIATELY FOLLOWING OUR DENIAL OF A
TIMELY PETITION FOR CERTIORARI, 340 U.S. 812, 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.  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. 

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.  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, DECIDED
TODAY, THE ANSWER IS SHORT.  OUR DENIAL OF CERTIORARI IN HABEAS CORPUS
CASES IS WITHOUT SUBSTANTIVE SIGNIFICANCE. 

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. 

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. 

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.   (FN2)  THE
COMPLETE ANSWER TO PETITIONER'S CONTENTIONS, HOWEVER, IS FOUND IN THE
SUCCEEDING PARAGRAPH WHERE THE COURT SAID: 

"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 113, 71 A.2D 107, AT 117. 

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 OFFHAND PLEA OF NOT
GUILTY, PETITIONER CONTENDS HE LOST HIS ONLY CHANGE TO REQUIRE THAT HIS
MENTAL COMPETENCY BE TRIED AT THE OUTSET BY A JURY.  (FN3) 

ASSUMING THAT SUCH A CHANGE 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 113, 71 A.2D, AT
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. 

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, 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. 

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. 

"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. 

     *         *         *         *         * 

"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,
118-120.  SEE PHYLE V. DUFFY, 334 U.S. 431; AND SOLESBEE V. BALKCOM,
339 U.S. 9. 

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 460
465, DECIDED TODAY. 

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 THE CONSTITUTIONAL
REQUIREMENTS.  THAT IS THIS CASE."  UNITED STATES EX REL. SMITH V.
BALDI, 96 F. SUPP.  100, AT 103. 

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. 
AFFIRMED.    FN1  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 223, 66 A.2D 764.  IN ITS OPINION DENYING THE SUBSEQUENT
PETITION FOR A WRIT OF HABEAS CORPUS THE PENNSYLVANIA COURT HELD THAT
"WHETHER 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 112, 71 A.2D 107, AT 116. 

FN2  "WHEN COUNSEL FOR THE RELATOR ENTERED A PLEA OF GUILTY TO THE
INDICTMENT, THAT PLEA ADMITTED THE 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 112, 71 A.2D 107, AT 117. 

FN3  PENNSYLVANIA LAW PROVIDES THAT COUNSEL MAY ASK FOR A SPECIAL
TRIAL TO TEST HIS CLIENT'S SANITY AT ARRAIGNMENT: 

"THE SAME LUNACY COMMITMENT PROCEEDING 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 APEAR 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. SEC. 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. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN DISSENTING.* 

*SEE ALSO OPINION OF MR. JUSTICE FRANKFURTER IN BROWN V. ALLEN, ANTE,
P. 488, WHICH ALSO APPLIES TO THIS CASE. 

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.  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.) 

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
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. 

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 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. 

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 UNIFORMED 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. 

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. 

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. 
..END :























CITY OF CHICAGO V. WILLETT COMPANY 344 U.S. 574 


NO. 23.  ARGUED OCTOBER 17, 1952 - DECIDED FEBRUARY 9, 1953 - 409 ILL.
480, 101 N.E.2D 205, REVERSED. 


RESPONDENT IS AN ILLINOIS CORPORATION WITH ITS PLACE OF BUSINESS IN
CHICAGO.  IT OWNS A FLEET OF TRUCKS WHICH IT USES TO TRANSPORT GOODS
FOR HIRE WITHIN CHICAGO AS WELL AS BETWEEN CHICAGO AND POINTS IN
NEIGHBORING STATES.  EVERY DAY EACH TRUCK CARRIER SOME GOODS WHICH
NEVER LEAVE THE CITY AND SOME DESTINED FOR NEIGHBORING STATES.  HELD:
AS APPLIED TO RESPONDENT, AN ORDINANCE OF THE CITY OF CHICAGO LEVYING
AN ANNUAL LICENSE TAX RANGING, ACCORDING TO CAPACITY, FROM $8.25 TO
$16.50 ON EACH TRUCK OPERATED FOR HIRE "WITHIN THE CITY" IS NOT
INCONSISTENT WITH THE COMMERCE CLAUSE WHEN NOT SHOWN TO BE IN FACT A
BURDEN ON INTERSTATE COMMERCE.  PP. 574-580. 

CITY OF CHICAGO V. WILLETT COMPANY. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

THE SUPREME COURT OF ILLINOIS HELD AN ORDINANCE OF THE CITY OF
CHICAGO LEVYING AN ANNUAL LICENSE TAX ON TRUCKS OPERATED FOR HIRE
WITHIN THE CITY UNCONSTITUTIONAL AS APPLIED TO RESPONDENT'S TRUCKS. 
409 ILL. 480, 101 N.E.2D 205.  THIS COURT GRANTED CERTIORARI.  343 U.S.
940.  REVERSED AND REMANDED, P. 580. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

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.  (FN1)  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.  PENALTIES ARE PROVIDED FOR FAILURE TO PAY THE TAX. 

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 TO SOME POINT
OUTSIDE THE STATE OF ILLINOIS." 

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."  CITY OF CHICAGO V.
WILLETT CO., 406 ILL. 286, 295, 94 N.E.2D 195, 200. 

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.  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. 

"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. TEXAS, 210 U.S. 217,
225.  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 NEW YORK
CENTRAL R. CO. V. MILLER, 202 U.S. 584, WHICH WE REAFFIRMED IN
NORTHWEST AIRLINES, INC. V. MINNESOTA, 322 U.S. 292.  HOWEVER, "NICE
DISTINCTIONS" HAVE BEEN ARGUED TO US AND THEY SHOULD BE CONSIDERED. 

IT IS SAID ON THE ONE HAND THAT OSBORNE V. FLORIDA, 164 U.S. 650,
PULLMAN CO. V. ADAMS, 189 U.S. 420, AND PACIFIC TELEPHONE CO. V. TAX
COMMISSION, 297 U.S. 403, DECIDE THIS CASE, AND ON THE OTHER THAT IT IS
CONTROLLED BY CASES SUCH AS ADAMS EXPRESS CO. V. NEW YORK, 232 U.S. 14,
BOWMAN V. CONTINENTAL OIL CO., 256 U.S. 642, SPROUT V. SOUTH BEND, 277
U.S. 163, AND COONEY V. MOUNTAIN STATES TELEPHONE CO., 294 U.S. 384. 
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. 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 416-417.  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 289-290, 94 N.E.2D, AT 197-198.  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. 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. 

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 414.  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 IN THIS ONE, BY THE
GOVERNING PRINCIPLES OF NEW YORK CENTRAL R. CO. V. MILLER, SUPRA.
(FN2) 

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 593. 
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 597; SEE
NORTHWEST AIRLINES V. MINNESOTA, SUPRA, 322 U.S., AT 299, N. 4.  IN THE
NORTHWEST AIRLINES CASE, THE TAXPAYER, A MINNESOTA CORPORATION, USED
ST. PAUL AS THE HOME PORT FOR ALL ITS 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 "THE 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., AT 294.  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 306, FITS A FLEET OF TRUCKS AT LEAST AS WELL AS
IT DOES A FLEET OF AIRLINERS. 

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. 

THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS IS REVERSED AND THE
CAUSE REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  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 VIOLATING ANY OF THE PROVISIONS OF THIS CHAPTER SHALL BE
FINED  ...  ."  MUNICIPAL CODE OF CHICAGO, C. 163, JOURNAL OF THE
PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF CHICAGO, ILLINOIS,
JANUARY 14, 1949, P. 3679. 

FN2  THE MILLER CASE WAS NOT CONSIDERED BY THE COURT IN ADAMS EXPRESS
CO. V. 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. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING IN
THE JUDGMENT. 

I AGREE WITH THE CONCLUSION REACHED BY THE COURT.  IN PACIFIC
TELEPHONE & TELEGRAPH CO. V. TAX COMMISSION, 297 U.S. 403, 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." 

PAGE 415.  CF. SPROUT V. SOUTH BEND, 277 U.S. 163, 171; PULLMAN CO.
V. ADAMS, 189 U.S. 420. 

THE CHICAGO "CARTERS TAX" IS STRICTLY AN OCCUPATIONAL TAX FOR
CARRYING GOODS WITHIN THE CITY.  CITY OF CHICAGO V. WILLET CO., 406
ILL. 286, 290, 94 N.E.2D 195, 198.  I DO NOT THINK THAT NEW YORK
CENTRAL R. CO. V. MILLER, 202 U.S. 584, 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.  PAGE 595.  THE VALIDITY TO SO TAX
TURNED ON THE RAILROAD'S FAILURE TO SHOW, BY SOME FORM OF
APPORTIONMENT, TAXABILITY IN OTHER STATES.  PAGE 597.  I FIND NOTHING
IN THE CONCLUSION AND JUDGMENT OF THE COURT IN NORTHWEST AIRLINES V.
MINNESOTA, 322 U.S. 292, 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.    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;
SOUTHERN GAS CORP. V. ALABAMA, 301 U.S. 148, 153; AND CASKEY BAKING CO.
V. VIRGINIA, 313 U.S. 117, 119. 

MR. JUSTICE DOUGLAS, DISSENTING. 

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. SOUTH BEND, 277 U.S. 163, 170, 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, 198.  IT THEREFORE
COULD NOT BE EXACTED FOR THE PRIVILEGE OF ENGAGING IN INTERSTATE
COMMERCE.  SPROUT V. SOUTH BEND, SUPRA, P. 171; SPECTOR MOTOR SERVICE
V. O'CONNOR, 340 U.S. 602. 

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, 198-199.  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 TELE.  CO. V. TAX COMM'N, 297 U.S. 403, 414,
WHERE THE INTERSTATE BUSINESS DID NOT INCREASE THE AMOUNT OF THE TAX. 

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. 
..END :


















BODE V. BARRETT 344 U.S. 583 


NO. 187.  SUBMITTED JANUARY 5, 1953 - DECIDED FEBRUARY 9, 1953 - 412
ILL. 204, 106 N.E.2D 521, AND 412 ILL. 321, 106 N.E.2D 510, AFFIRMED. 


APPELLANTS, MOST OF WHOM ARE INTERSTATE CARRIERS AND ALL OF WHOM ARE
INTRASTATE CARRIERS IN ILLINOIS, CHALLENGED THE CONSTITUTIONALITY OF AN
ILLINOIS LAW WHICH IMPOSES A TAX FOR THE USE OF THE PUBLIC HIGHWAYS AND
MEASURES THE TAX EXCLUSIVELY BY THE GROSS WEIGHT OF EACH VEHICLE.  NONE
OF THE APPELLANTS SHOWED THAT THE TAX BORE NO REASONABLE RELATION TO
THE USE HE MADE OF THE HIGHWAYS IN HIS INTRASTATE OPERATIONS OR THAT
THE TAX WAS INCREASED BY REASON OF HIS INTERSTATE OPERATIONS.  HELD: 

1.  APPELLANTS HAVE FAILED TO CARRY THE BURDEN OF SHOWING THAT THE
TAX DEPRIVES THEM OF RIGHTS WHICH THE COMMERCE CLAUSE PROTECTS.  PP.
584-585. 

2.  THE TAX DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, THOUGH PRIVATE CARRIERS ARE TAXED AT THE SAME RATE AS
CARRIERS FOR HIRE.  PP. 585-586. 

3.  SINCE NO SHOWING IS MADE THAT ANY OF THE APPELLANTS IS THE VICTIM
OF AN INVIDIOUS CLASSIFICATION, THE STATUTE DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 586. 

4.  THE FACT THAT THE STATUTE REQUIRES ILLINOIS RESIDENTS TO PAY THE
TAX, WHEREAS NONRESIDENTS ARE EXEMPT IF THE STATES OF THEIR RESIDENCE
RECIPROCATE AND GRANT LIKE EXEMPTIONS TO ILLINOIS RESIDENTS, DOES NOT
VIOLATE THE COMPACT CLAUSE OF ART I, SEC. 10 OF THE CONSTITUTION.  P.
586. 

BODE ET AL. V. BARRETT, SECRETARY OF STATE, ET AL. 

ON APPEAL FROM THE SUPREME COURT OF ILLINOIS.* 

*TOGETHER WITH NO. 274, CO-ORDINATED TRANSPORT, INC. ET AL. V.
BARRETT, SECRETARY OF STATE, ET AL., ARGUED JANUARY 5, 1953, ON APPEAL
FROM THE SAME COURT. 

THE SUPREME COURT OF ILLINOIS SUSTAINED THE CONSTITUTIONALITY OF A
STATE TAX ON TRUCKS.  412 ILL. 204, 321, 106 N.E.2D 521, 510.  ON
APPEAL TO THIS COURT, AFFIRMED, P. 586. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES CHALLENGE THE CONSTITUTIONALITY OF SECS. 9, 11, 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, SEC. 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. SEC.  1257(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 LINES, 309 U.S. 176, 181.  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.  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. 

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. MARYLAND, 235 U.S.
610.  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 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.  THE CASE IS THEREFORE TO BE DISTINGUISHED FROM THOSE SITUATIONS
WHERE BY NATURE OF THE TAX OR ITS INCIDENCE (SPROUT V. SOUTH BEND, 277
U.S. 163, 170, 171; SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602,
609) AN ISSUE OF UNREASONABLE BURDEN ON INTERSTATE COMMERCE IS
PRESENTED. 

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), AS FOR EXAMPLE THE TAXATION OF A PRIVILEGE PROTECTED
BY THE FIRST AMENDMENT.  SEE MURDOCK V. PENNSYLVANIA, 319 U.S. 105,
112.  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.
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. 

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. MINNESOTA, 283 U.S. 57, 62.  AND CONTRARY TO APPELLANTS'
SUGGESTIONS, THAT KIND OF RECIPROCAL ARRANGEMENT BETWEEN STATES HAS
NEVER BEEN THOUGHT TO VIOLATE THE COMPACT CLAUSE OF ART. I, SEC. 10 OF
THE CONSTITUTION.  SEE ST. LOUIS & S.F.R. CO. V. JAMES, 161 U.S. 545,
562; KANE V. NEW JERSEY, 242 U.S. 160, 168.  AFFIRMED. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

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." 

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. 

FOR THIS TRULY STARTLING CONCLUSION WE ARE VOUCHSAFED NO AUTHORITY
EXCEPT:  "CF.  SOUTHERN R. CO. V. KING, 217 U.S. 524, 534."  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. 

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. 

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, 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. KANSAS, 216 U.S. 1, AND
PULLMAN CO. V. KANSAS, 216 U.S. 56, 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? 

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 STATES 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.
..END :













KWONG HAI CHEW V. COLDING 344 U.S. 590 


NO. 17.  ARGUED OCTOBER 17, 1952 - DECIDED FEBRUARY 9, 1953 - 192 F.2D
1009, REVERSED. 


1.  UNDER 8 CFR SEC. 175.57(B), A REGULATION PERTAINING TO THE ENTRY
OF ALIENS INTO THE UNITED STATES, THE ATTORNEY GENERAL HAS NO AUTHORITY
TO DENY TO AN ALIEN WHO IS A LAWFUL PERMANENT RESIDENT OF THE UNITED
STATES, AND WHO IS CONTINUOUSLY RESIDING AND PHYSICALLY PRESENT
THEREIN, AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO AN ORDER FOR HIS
"PERMANENT EXCLUSION" AND CONSEQUENT DEPORTATION, EVEN WHEN 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.  PP. 591-600. 

(A)  KNAUFF V. SHAUGHNESSY, 338 U.S. 537, DISTINGUISHED.  PAGE 596. 

(B)  THE TERM "EXCLUDABLE," IN SEC. 175.57(B), IS INAPPLICABLE TO
ALIENS WHO ARE LAWFUL PERMANENT RESIDENTS PHYSICALLY PRESENT WITHIN THE
UNITED STATES.  P. 599. 

(C)  NOTHING IN THE STATUTE OR THE PRESIDENTIAL PROCLAMATIONS UNDER
WHICH THIS REGULATION WAS ISSUED REQUIRES OR PERMITS A BROADER
INTERPRETATION OF THIS SECTION.  PP. 599-600. 

2.  PETITIONER IS AN ALIEN AND A LAWFUL PERMANENT RESIDENT OF THE
UNITED STATES, WHO CURRENTLY MAINTAINS HIS RESIDENCE IN THE UNITED
STATES AND USUALLY IS PHYSICALLY PRESENT THERE.  WHILE RETURNING FROM A
VOYAGE TO FOREIGN PORTS AS A SEAMAN ON A VESSEL OF AMERICAN REGISTRY
WITH ITS HOME PORT IN THE UNITED STATES, HE WAS DETAINED ON BOARD BY AN
ORDER OF THE ATTORNEY GENERAL AND ORDERED "TEMPORARILY EXCLUDED" FROM
THE UNITED STATES UNDER 8 CFR SEC. 175.57, AS AN ALIEN WHOSE ENTRY WAS
DEEMED PREJUDICIAL TO THE PUBLIC INTEREST.  HE WAS DENIED A HEARING BY
THE ATTORNEY GENERAL, ON THE GROUND THAT THE ORDER WAS BASED ON
INFORMATION OF A CONFIDENTIAL NATURE THE DISCLOSURE OF WHICH WOULD BE
PREJUDICIAL TO THE PUBLIC INTEREST; AND HE WAS ORDERED TO BE
PERMANENTLY EXCLUDED FROM THE UNITED STATES.  HELD:  PETITIONER'S
DETENTION, WITHOUT NOTICE OF ANY CHARGES AGAINST HIM AND WITHOUT
OPPORTUNITY TO BE HEARD IN OPPOSITION TO THEM, WAS NOT AUTHORIZED BY 8
CFR SEC. 175.57(B).  PP. 600-603. 

KWONG HAI CHEW V. COLDING ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS WAS DISMISSED BY
THE DISTRICT COURT.  97 F. SUPP. 592.  THE COURT OF APPEALS AFFIRMED. 
192 F.2D 1009.  THIS COURT GRANTED CERTIORARI.  343 U.S. 933.  REVERSED
AND REMANDED, P. 603. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

A PRELIMINARY CONSIDERATION THAT IS HELPFUL TO THE SOLUTION OF THIS
LITIGATION IS WHETHER, UNDER 8 CFR SEC. 175.57(B), (FN1) 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. 

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.  (FN2)  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.  (FN3)  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 SEC. 175.57, AS AN ALIEN WHOSE
ENTRY WAS DEEMED PREJUDICIAL TO THE PUBLIC INTEREST. 

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 SEC. 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 SAFEKEEPING ON BEHALF
OF THE MASTER OF THE S.S. 'SIR JOHN FRANKLIN.'" 

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 KNAUFF V.
SHAUGHNESSY, 338 U.S. 537.  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.  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. 

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 SEC.
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 PETITIONER'S FIRST CONTENTION
MAKES IT UNNECESSARY TO REACH HIS SECOND. 

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.  (FN4)  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. 

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.  (FN5)  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.  (FN6)
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.  (FN7)  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 PROCEDURAL
DUE PROCESS.  (FN8) 

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. 
(FN9)  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. 

THE REGULATION BEFORE US WAS ISSUED BY THE SECRETARY OF STATE AND
CONCURRED IN BY THE ATTORNEY GENERAL, PURSUANT TO PRESIDENTIAL
PROCLAMATIONS NO. 2523, 3 CFR, 1943 CUM. SUPP., 270, AND NO. 2850, 3
CFR, 1949 SUPP., 41.  THE LATTER PROCLAMATION ISSUED AUGUST 17, 1949,
ALSO "RATIFIED AND CONFIRMED" THE REGULATION.  THOSE PROCLAMATIONS, IN
TURN, DEPEND UPON SEC. 1 OF THE ACT OF MAY 22, 1918, 40 STAT. 559, AS
AMENDED, JUNE 21, 1941, 55 STAT. 252, 22 U.S.C. SEC. 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, 333.  WE FIND
NOTHING IN THE STATUTE OR THE PROCLAMATIONS WHICH CALLS FOR, PERMITS OR
SUSTAINS A BROADER INTERPRETATION OF 8 CFR SEC. 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. 

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. 

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  ...  . 

     *         *       *         *         * 

"(D)  THE FOLLOWING SHALL BE REGARDED AS RESIDENCE WITHIN THE UNITED
STATES WITHIN THE MEANING OF THIS CHAPTER: 

     *         *         *         *       * 

"(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.
SEC. 707.  SEE ALSO, SEC. 325, 54 STAT. 1150, AS AMENDED, 64 STAT.
1015, 8 U.S.C. (SUPP. V) SEC.  725.  (FN10) 

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.  (FN11) 

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. 
(FN12)  BEFORE RECEIVING CLEARANCE FOR HIS FOREIGN CRUISE, HE WAS
SCREENED AND APPROVED BY THE COAST GUARD.  (FN13)  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,
SECS. 701-747, AS AMENDED. 

WE DO NOT REACH THE ISSUE AS TO WHAT WOULD BE THE CONSTITUTIONAL
STATUS OF 8 CFR SEC.  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. 

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 SEC.
175.57(B).  ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT.    FN1  SEC.
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 OR MORE OF THE CATEGORIES SET FORTH IN SEC.
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 SEC. 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 SEC. 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 SEC. 175.57, SEE SEC.
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) SEC.
137-4, REFERRING TO ALIENS WHO ARE "EXCLUDABLE" UNDER SEC. 137.  THE
GOVERNMENT, IN THE INSTANT CASE, RELIES UPON 8 CFR SEC. 175.57, RATHER
THAN UPON 8 U.S.C. (SUPP. V) SEC. 137-4. 

FN2  "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 SEC. 19(C) OF THE IMMIGRATION
ACT OF FEBRUARY 5, 1917, AS AMENDED, 62 STAT. 1206, 8 U.S.C. (SUPP. V)
SEC. 155(C): 

"(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 ALIEN 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 SEC. 175.41(Q) STATES THAT FOR THE PURPOSES OF SECS. 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:  ...  ." 

FN3  FOR THE NATURE AND SIGNIFICANCE OF SUCH CLEARANCE, SEE EXECUTIVE
ORDER NO. 10173, OF OCTOBER 18, 1950, ESPECIALLY SECS. 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) SEC. 191.  IT HAS NOW BEEN IMPLEMENTED BY REGULATIONS EFFECTIVE
DECEMBER 27, 1950, PUBLISHED, AS AMENDED, IN 33 CFR, 1951 CUM. POCKET
SUPP., SECS. 121.01-125.37.  SEE ALSO, PARKER V. LESTER, 98 F. SUPP.
300, 191 F.2D 1020. 

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., SECS. 121.13-121.16. 

FN4  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. 

FN5  "  ...  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 (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."  JONNSON V.
EISENTRAGER, 339 U.S. 763, 770-771. 

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., AT 771.  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. 

FN6  "  ...  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, 189 U.S. 86, 100-101. 

"  ...  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.  SEE ALSO JOHNSON V. EISENTRAGER, SUPRA, AT 770
771; CARLSON V. LANDON, 342 U.S. 524, 538. 

FN7  SEE FONG YUE TING V. UNITED STATES, 149 U.S. 698, 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, AT 50; KWOCK JAN FAT V. WHITE, 253 U.S.
454, 457-458, 464. 

FN8  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 V. SMITH, 289 U.S. 422, 424; UNITED STATES V. CORSI, 287
U.S. 129, 131; UNITED STATES EX REL. CLAUSSEN V. DAY, 279 U.S. 398,
400; QUON QUON POY V. JOHNSON, 273 U.S. 352, 358; LEWIS V. FRICK, 233
U.S. 291, 293; LAPINA V. WILLIAMS, 232 U.S. 78, 83; FONG YUE TING V.
UNITED STATES, 149 U.S. 698, 729. 

FN9  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. 

FN10  THIS PROVISION SURVIVES IN A MODIFIED FORM IN SEC. 330 OF THE
IMMIGRATION AND NATIONALITY ACT OF 1952, 66 STAT. 251.  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. 

FN11  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. 

FN12  SEE NOTE 2, SUPRA. 

FN13  SEE NOTE 3, SUPRA. 

MR. JUSTICE MINTON DISSENTS. 
..END :











LUTWAK V. UNITED STATES 344 U.S. 604 


NO. 66.  ARGUED DECEMBER 8-9, 1952 - DECIDED FEBRUARY 9, 1953 - 195 F.2D
748, AFFIRMED. 


PETITIONERS WERE CONVICTED OF A CONSPIRACY TO DEFRAUD THE UNITED
STATES BY OBTAINING THE ILLEGAL ENTRY THERETO OF THREE ALIENS AS
SPOUSES OF HONORABLY DISCHARGED VETERANS.  THEY HAD CONSPIRED TO HAVE
THREE SUCH VETERANS JOURNEY TO PARIS, THERE GO THROUGH MARRIAGE
CEREMONIES WITH THREE ALIENS, BRING THEM TO THE UNITED STATES, AND
OBTAIN THEIR ENTRY UNDER THE WAR BRIDES ACT.  THE PARTIES TO THE
MARRIAGES WERE NOT TO LIVE TOGETHER AS HUSBAND AND WIFE AND WERE TO
TAKE WHATEVER LEGAL STEPS WERE NECESSARY TO SEVER THE LEGAL TIES; BUT
THESE FACTS WERE TO BE CONCEALED FROM THE IMMIGRATION AUTHORITIES. 
HELD: 

1.  FOR THE PURPOSES OF THIS CASE, THE QUESTION OF THE VALIDITY OF
THE MARRIAGES IS IMMATERIAL.  PP. 610-613. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT DID NOT ERR IN
PERMITTING THE "WIVES" TO TESTIFY AGAINST THEIR "HUSBANDS."  PP. 613
615. 

3.  IT WAS NOT ERROR FOR THE TRIAL COURT TO ADMIT TESTIMONY AS TO
VARIOUS ACTS OF DIFFERENT PETITIONERS, DONE AFTER THE CONSPIRACY ENDED,
WITHOUT LIMITING THE EVIDENCE TO THE PARTICULAR DEFENDANT WHO PERFORMED
THE ACT, WHERE THE ACTS WERE RELEVANT TO SHOW THE SPURIOUSNESS OF THE
MARRIAGES AND THE INTENT OF THE PARTIES IN GOING THROUGH THE MARRIAGE
CEREMONIES.  PP. 615-618. 

4. ON THE RECORD IN THIS CASE, THE ADMISSION AGAINST ALL OF THE
CONSPIRATORS, THOUGH NOT PRESENT WHEN IT WAS MADE, OF A SINGLE
DECLARATION MADE AFTER THE CONSPIRACY HAD ENDED WAS HARMLESS ERROR
UNDER RULE 52(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  PP. 618
620. 

LUTWAK ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

THE COURT OF APPEALS AFFIRMED PETITONERS' CONVICTION OF A CONSPIRACY
TO DEFRAUD THE UNITED STATES.   195 F.2D 748.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 809.  AFFIRMED, P. 620. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

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, 195 F.2D 748, AND WE
GRANTED CERTIORARI, 344 U.S. 809. 

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, IN 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. 

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: 

"  ...  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. SEC. 232. 

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. 

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. 

THE STATUTE DEFINING CONSPIRACY READS AS FOLLOWS: 

"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.)  SEC.  88, NOW 18 U.S.C. (SUPP. V) SEC.
371. 

THE SECTIONS OF THE STATUTE WHICH IT WAS ALLEGED THE PETITIONERS
CONSPIRED TO VIOLATE PROVIDE IN PERTINENT PART: 

"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. SEC. 180A. 

"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.) 
SEC.  220(C), NOW 18 U.S.C. (SUPP. V) SEC. 1546. 

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. 

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. 

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. 

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. 

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. 

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;
RESTATEMENT, CONFLICT OF LAWS, SECS. 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. 

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 VETERANS 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. 

BECAUSE THE VALIDITY OF THE MARRIAGES IS NOT MATERIAL, THE CASES
INVOLVING SO-CALLED LIMITED-PURPOSE MARRIAGES, (FN1) 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.  (FN2)
MUCH MORE CLOSELY RELATED IS THE CASE OF UNITED STATES V. RUBENSTEIN,
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. 

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. 

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, THE WIFE
MAY TESTIFY IN FAVOR OF THE HUSBAND. 

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
COMPENTENCY 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.  THERE FOLLOWED THE PROMULGATION BY THIS COURT
OF RULE 26 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, WHICH READS AS
FOLLOWS:

              "RULE 26.  EVIDENCE. 

"  ...  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." 

THIS RULE WAS A PARAPHRASE OF MR. JUSTICE STONE'S STATEMENT IN
WOLFLE, AT 12. 

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. 

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. 

"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, AT
383. 

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. 

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. 

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. 

THIS COURT IN KRULEWITCH V. UNITED STATES, 336 U.S. 440, 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. 

"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."  ID., AT 444. 

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. 

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. 

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.  SEE UNITED STATES V.
GOODING, 12 WHEAT.  460, 468-470.  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; LOGAN V.
UNITED STATES, 144 U.S. 263, 308-309.  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, AT 309, 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, 151 F.2D 915, 917-918; SEE
FITZPATRICK V. UNITED STATES, 178 U.S. 304, 312-313; FERRIS V. UNITED
STATES, 40 F.2D 837, 839. 

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. 

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, AT 453 (CONCURRING
OPINION); BLUMENTHAL V. UNITED STATES, 332 U.S. 539, 559-560; NASH V.
UNITED STATES, 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, 165 F.2D 360, 367. 

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.  (FN3)  WAS THE ADMISSION OF THIS ONE ITEM OF
HEARSAY EVIDENCE SUFFICIENT TO REVERSE THIS CASE?    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.  (FN4)  WE HOLD THAT THE ERROR WAS HARMLESS. 

FINDING NO REVERSIBLE ERROR IN THIS RECORD, THE JUDGMENT IS
AFFIRMED. 

FN1  E.G., SCHIBI V. SCHIBI, 136 CONN. 196, 69 A.2D 831; HANSON V.
HANSON, 287 MASS.  154, 191 N.E. 673.  THESE AND THE OTHER CASES CITED
BY PETITIONERS ARE COLLECTED AND DISCUSSED IN A NOTE, 14 A.L.R.2D 624
(1950). 

FN2  E.G., NORMAN V. STATE, 127 TENN. 340, 155 S.W. 135; STATE V.
FREY, 76 MINN. 526, 79 N.W. 518. 

FN3  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. 

FN4  "(A)  HARMLESS ERROR.  ANY ERROR, DEFECT, IRREGULARITY OR
VARIANCE WHICH DOES NOT AFFECT SUBSTANTIAL RIGHTS SHALL BE
DISREGARDED." 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE BLACK AND MR. JUSTICE
FRANKFURTER JOIN, DISSENTING. 

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. 

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. 

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 PERSON 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 TO 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. 

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. 

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, 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 PRIVILEGE 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. 

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.  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 OF
KRULEWITCH, WE THINK ITS RULING ON SUBSEQUENT ACTS AND DECLARATIONS
LARGELY NULLIFIES THE EFFECT OF THAT DECISION AND EXEMPLIFIES THE
DANGERS POINTED OUT THEREIN. 

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 OR 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. 

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. 

FOR THESE REASONS WE ARE IMPELLED TO DISSENT. 
..END :







HOWARD V. COMMISSIONERS OF THE SINKING FUND OF THE CITY OF LOUISVILLE
344 U.S. 624 


NO. 295.  ARGUED JANUARY 12, 1953 - DECIDED FEBRUARY 9, 1953 - 249
S.W.2D 816, AFFIRMED. 


1.  AN AREA EMBRACING A NAVAL ORDNANCE PLANT WITHIN THE STATE OF
KENTUCKY HAD BEEN ACQUIRED BY THE UNITED STATES BY CONDEMNATION.  THE
STATE CONSENTED TO THE ACQUISITION AND THE UNITED STATES ACCEPTED
EXCLUSIVE JURISDICTION OVER THE AREA.  HELD:  THE FACT THAT THE AREA
WAS WITHIN THE "EXCLUSIVE JURISDICTION" OF THE UNITED STATES DID NOT
BAR ITS ANNEXATION BY THE CITY OF LOUISVILLE.  PP. 624-627. 

2.  A TAX OR LICENSE FEE IMPOSED BY THE CITY OF LOUISVILLE FOR THE
PRIVILEGE OF WORKING WITHIN THE CITY, MEASURED BY ONE PERCENT OF INCOME
EARNED WITHIN THE CITY, WAS AN "INCOME TAX" WITHIN THE MEANING OF THE
BUCK ACT, 4 U.S.C. SECS. 105-110, AND WAS AUTHORIZED BY THAT ACT TO BE
APPLIED TO PAYMENTS RECEIVED BY FEDERAL EMPLOYEES FOR SERVICES
PERFORMED AT THE ORDNANCE PLANT, EVEN THOUGH SUCH TAX OR FEE WAS NOT AN
"INCOME TAX" UNDER STATE LAW.  PP. 627-629. 

HOWARD ET AL. V. COMMISSIONERS OF THE SINKING FUND OF THE CITY OF
LOUISVILLE ET AL. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

THE COURT OF APPEALS OF KENTUCKY UPHELD A TAX IMPOSED BY THE CITY OF
LOUISVILLE, AS APPLIED TO EMPLOYEES OF A NAVAL ORDNANCE PLANT.  249
S.W.2D 816.  ON APPEAL TO THIS COURT, AFFIRMED, P. 629. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

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. 

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.  (FN1)  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. 
(FN2) 

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. 

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. 

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; COUNTY OF NORFOLK V. 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. 

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, SEC. 8, CL. 17; SURPLUS TRADING CO. V.
COOK, 281 U.S. 647, 652.  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. SECS. 105-110, KNOWN AS THE BUCK ACT. 

"SEC. 106.  SAME; INCOME TAX. 

"(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. 

"(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) SEC. 106. 


"(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) SEC. 110(C). 

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. 

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. 

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.  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. 

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. 

FN1  "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. 

FN2  "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 COMPENSATIONS 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. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

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,
INTEREST, CAPITAL GAINS.  THE EXCLUSIONS 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.  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. 
..END :




UNITED STATES V. LANE MOTOR CO. 344 U.S. 630 


NO. 499.  DECIDED FEBRUARY 9, 1953 - 199 F.2D 495, AFFIRMED. 


A VEHICLE USED SOLELY FOR COMMUTING TO AN ILLEGAL DISTILLERY IS NOT
USED IN VIOLATING THE REVENUE LAWS WITHIN THE MEANING OF SEC. 3116 OF
THE INTERNAL REVENUE CODE AND IS NOT FORFEITABLE THEREUNDER.   PP. 630
631. 

UNITED STATES V. LANE MOTOR CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

PER CURIAM. 

IN THIS PROCEEDING, THE GOVERNMENT SOUGHT THE FORFEITURE OF AN
AUTOMOBILE AND OF A TRUCK UNDER THE PROVISIONS OF SEC. 3116 OF THE
INTERNAL REVENUE CODE 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. 

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 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. 

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, 198 F.2D 399 (1952), 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, 195 F.2D 857 (1952).  CERTIORARI IS GRANTED IN ORDER
TO RESOLVE THIS CONFLICT. 

WE THINK IT CLEAR THAT A VEHICLE USED SOLELY FOR COMMUTING TO AN
ILLEGAL DISTILLERY IS NOT USED IN VIOLATING THE REVENUE LAWS. 

CERTIORARI GRANTED, AND THE JUDGMENT AFFIRMED. 
..END :





NATIONAL LABOR RELATIONS BOARD V. DANT, DOING BUSINESS AS DANT &
RUSSELL, LTD. 344 U.S. 375 


NO. 97.  ARGUED DECEMBER 15, 1952 - DECIDED FEBRUARY 2, 1953 - 195 F.2D
299, REVERSED. 


PRECLUDE ISSUANCE BY THE NATIONAL LABOR RELATIONS BOARD OF AN UNFAIR
LABOR-PRACTICE COMPLAINT UNDER SEC.  10(C) AFTER THE REQUIRED NON
COMMUNIST AFFIDAVITS HAVE BEEN FILED - EVEN THOUGH THEY HAD NOT BEEN
FILED WHEN THE UNION FILED THE CHARGE WITH THE BOARD UNDER SEC. 10(B). 
PP.  376-385. 

NATIONAL LABOR RELATIONS BOARD V. DANT ET AL., DOING BUSINESS AS DANT &
RUSSELL, LTD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

ON THE GROUND THAT SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, HAD NOT BEEN COMPLIED
WITH, THE COURT OF APPEALS SET ASIDE AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD REQUIRING AN EMPLOYER TO CEASE AND DESIST FROM UNFAIR
LABOR PRACTICES IN VIOLATION OF SEC. 8(A)(1) AND (3).  195 F.2D 299. 
THIS COURT GRANTED CERTIORARI.  344 U.S. 811.  REVERSED, P. 385. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

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,
SEC. 10(B), AND WAS BASED ON VIOLATIONS OF SEC. 8(A)(1) AND (3).  (FN1)
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 SEC. 9(H) OF
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT, 1947, SEC. 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. 

CHARGE AND THE ISSUANCE OF THE COMPLAINT, THAT: 

"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  ...  ."  (FN2) 

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 SEC. 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 SEC. 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 SEC.
9(H), "THE BOARD WAS NOT EMPOWERED TO ENTERTAIN THE CHARGE OR TO ISSUE
THE COMPLAINT OR THE ORDER."  (FN3)  THIS FOLLOWED, ACCORDING TO THE
COURT, BECAUSE OUR DECISION IN LABOR BOARD V. HIGHLAND PARK MFG. CO.,
341 U.S. 322, HAD CONSTRUED SEC. 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. 

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 SEC.  8(A)(5) BY REFUSING TO
BARGAIN WITH THE BARGAINING AGENT OF THE EMPLOYEES, SEC. 9(A), (FN4)
HELD ONLY THAT THE C.I.O. WAS A "NATIONAL OR INTERNATIONAL LABOR
ORGANIZATION" WITHIN THE MEANING OF SEC. 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 SEC. 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 SEC. 8(A)(3) AND THEREFORE THERE WAS
NO OCCASION FOR THOSE COURTS TO ANALYZE SEC. 9(H) TO DETERMINE ITS
APPLICABILITY TO THE PRESENT SITUATION.  (FN5) 

IN RESPONDENT'S VIEW, AND IN THE VIEW OF THE COURTS OF APPEALS THAT
HAVE CONSIDERED THIS ISSUE, SEC. 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. 
SPECIFICALLY STATED THAT "UNLESS" THE PREREQUISITE AFFIDAVITS HAD BEEN
FILED, THE BOARD SHALL NOT (1) MAKE AN "INVESTIGATION" AS AUTHORIZED BY
SEC. 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. 

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."  (FN6)  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 SEC. 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 SEC. 9(H)
FOR THE UNION-SHOP ELECTION CLAUSE PROVISION OF SEC. 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. 

THE REQUIREMENTS FOR NON-COMMUNIST AFFIDAVITS IN SEC. 9(H) MAKE IT
UNLAWFUL FOR THE BOARD TO INVESTIGATE A PETITION BY A LABOR
ORGANIZATION UNDER SEC. 9(C) FOR COLLECTIVE BARGAINING REPRESENTATION. 
LIKEWISE THE ABSENCE OF SUCH AFFIDAVITS KEPT THE BOARD FROM
ENTERTAINING A PETITION FOR A UNION-SHOP ELECTION UNDER SEC. 9(E)(1). 
THE CAREFUL SPECIFICATION IN SEC.  9(H) THAT THESE AFFIDAVITS MUST BE
FILED BEFORE INVESTIGATION, ENTERTAINMENT OR COMPLAINT SHOWS THAT SEC.
9(H) WAS NOT DIRECTED AT THE FILING OF A CHARGE.  SUCH PARTICULARITY
DISTINGUISHES BETWEEN CHARGE AND COMPLAINT. 

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 SEC. 9(H) OF THE ACT IN TERMS OF REQUIRING THE AFFIDAVITS TO BE
"EXECUTED CONTEMPORANEOUSLY WITH THE CHARGE (OR PETITION)."  (FN7)
THIS, HOWEVER, IS A DIRECTION AS TO WHAT SHOULD BE DONE AND IS NOT AN
INTERPRETATION BY THE BOARD OF THE REQUIREMENT OF SEC. 9(H).  ACCORDING
TO SEC. 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 SEC. 101.3 OF THESE RULES THAT THERE IS A 10-DAY PERIOD OF GRACE
GIVEN TO CHARGING UNIONS TO ACHIEVE COMPLIANCE STATUS.  (FN8)  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. 
(FN9)  AN INTERPRETATION THAT THE ACT PERMITS THE FILING OF A CHARGE
PRIOR TO COMPLIANCE WITH SEC. 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.  (FN10) 

RESPONDENT URGES THAT THE ABOVE CONSTRUCTION OF SEC. 9(H) WEAKENS THE
OVER-ALL 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. 

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 SEC. 9(H).  SINCE THE REMEDIAL
PROCESSES OF THE ACT TO CURE PRACTICES FORBIDDEN BY SEC. 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,
(FN11) 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. 

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 SEC. 9(F) AND (G) REQUIRES, MAKE
COMPLIANCE AT A GIVEN MOMENT, OR CONTINUOUS COMPLIANCE, A MATTER OF
HAPPENSTANCE.  UNDER SEC. 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 SEC. 10 OF THE ACT.   IT
WOULD SEEM THAT THE CONSTRUCTION OF SEC. 9(H) URGED BY RESPONDENT WOULD
LEAD TO A LIKE CONSTRUCTION OF SEC. 9(F) AND (G).  (FN12)  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. 

FINALLY, RESPONDENT MAKES THE ARGUMENT THAT ITS POSITION IS SUPPORTED
BY THE LEGISLATIVE HISTORY OF SEC. 9(H).  (FN13)  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 SEC.
9(H) AFFIDAVITS BEFORE FILING THE CHARGE.  THE PURPOSE OF SEC. 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 SEC. 9(H) ITSELF BEST SHOWS THE PURPOSE OF CONGRESS. 

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.  REVERSED. 

FN1  NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT, 1947, 29 U.S.C. SEC. 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. SEC. 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 ...  ." 

FN2  SECTION 9(H) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY
THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 146, 29 U.S.C.
(SUPP. III) SEC. 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. 

FN3  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 LABOR BOARD V. NINA DYE
WORKS CO., INC. 198 F.2D 362; AND LABOR 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 THIS COURT REVERSING THESE
DECISIONS ENTERED TODAY, POST, P. 924.    FN4  84 N.L.R.B. 744, 745. 

FN5  LABOR BOARD V. POSTEX COTTON MILLS, 181 F.2D 919; LABOR BOARD V.
J.I. CASE CO., 189 F.2D 599; LABOR BOARD V. CLARK SHOE CO., 189 F.2D
731. 

FN6  SEE S. 655, 83D CONG., 1ST SESS., INTRODUCED BY SENATOR TAFT TO
AMEND SEC. 9(H) BY FORBIDDING ENTERTAINMENT BY THE BOARD OF A CHARGE
UNDER SEC. 10(B) UNLESS THE REQUIRED AFFIDAVITS ARE FILED.    FN7  29
CFR SEC. 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." 

FN8  29 CFR SEC. 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." 

FN9  RESPONDENT ASSERTS THAT THIS PRACTICE, WHICH WAS FOLLOWED BY THE
BOARD IN THIS CASE, CONTRAVENES SEC. 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
REQUIREMENT OF ALL FORMAL OR INFORMAL PROCEDURES AVAILABLE," AND
PROVIDES THAT "NO PERSON SHALL IN ANY MANNER BE REQUIRED TO RESORT TO
ORGANIZATION OR PROCEDURE NOT SO PUBLISHED."  5 U.S.C.  SEC. 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. 

FN10  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 LABOR
BOARD V. NINA DYE WORKS CO., INC., 198 F.2D 362. 

FN11  N.L.R.B. RULES AND REGULATIONS AND STATEMENT OF PROCEDURE, 29
CFR SECS. 101.3 AND 102.13. 

FN12  29 U.S.C. SEC. 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 A 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 RESPRESENTATIVE 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." 

FN13  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 PINCIPLE  ...  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 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 SEC. 9(H), SENATOR
TAFT STATED THAT "THE FILING OF SUCH REPORT IS A CONDITION OF
CERTIFICATION AS 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 SEC. 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 CHANGES."  TO
THE SAME EFFECT SEE ALSO THE SUBSEQUENT STATEMENT OF CONGRESSMAN
HARTLEY, IN HIS BOOK, "OUR NEW NATIONAL LABOR POLICY," AT PP. 162-163. 

..END :























DE LA RAMA STEAMSHIP CO., INC. V. UNITED STATES 344 U.S. 386 


NO. 368.  ARGUED JANUARY 15, 1953 - DECIDED FEBRUARY 2, 1953 - 198 F.2D
182, REVERSED. 


PETITIONER BROUGHT A SUIT IN ADMIRALTY IN A FEDERAL DISTRICT COURT
AGAINST THE UNITED STATES TO RECOVER UNDER A WAR RISK POLICY ISSUED
UNDER THE WAR RISK INSURANCE ACT OF 1940, AS AMENDED, FOR THE LOSS OF A
SHIP BY ENEMY ACTION; BUT THE CASE HAD NOT BEEN REACHED FOR TRIAL WHEN
THAT ACT WAS REPEALED BY THE JOINT RESOLUTION OF JULY 25, 1947.  HELD:
THE DISTRICT COURT WAS NOT DEPRIVED OF JURISDICTION, SINCE EXISTING
RIGHTS AND REMEDIES WERE PRESERVED BY THE GENERAL SAVINGS STATUTE, R.S.
SEC. 13, NOW 1 U.S.C. SEC. 109.  PP. 386-391. 

DE LA RAMA STEAMSHIP CO., INC. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUIT IN ADMIRALTY AGAINST THE UNITED STATES, THE DISTRICT COURT
ENTERED A FINAL DECREE FOR THE LIBELLANT.  98 F. SUPP. 514.  THE COURT
OF APPEALS REVERSED.  198 F.2D 182.  THIS COURT GRANTED CERTIORARI. 
344 U.S. 883. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

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. SEC. 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, 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. 

THE DISTRICT COURT REJECTED THE GOVERNMENT'S CONTENTION, HOLDING THAT
SEC. 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 SEC.
13, ORIGINALLY SEC. 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)
SEC. 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. 

*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." 

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. SEC. 13, THE CONSTITUTION
PRECLUDES EXTINCTION OF THE GOVERNMENT'S LIABILITY.  LYNCH V. UNITED
STATES, 292 U.S. 571.  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. SEC. 13, THE GENERAL SAVINGS STATUTE, NOW 1 U.S.C.
(SUPP. I) SEC. 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. 

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. SEC. 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. SEC. 13 AS FOR PRIVATE ENTERPRISE TO DO SO. 

THIS BRINGS US TO THE CRUX OF THE CONTENTION WHICH PREVAILED BELOW,
NAMELY, THAT WHILE THE GOVERNMENT'S OBLIGATION AS AN INSURER, WHICH
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. 

BY THE GENERAL SAVINGS STATUTE CONGRESS DID NOT MERELY SAVE FROM
EXTINCTION A LIABILITY INCURRED UNDER THE REPEALED STATUTE; IT SAVED
THE STATUTE ITSELF: 

"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." 

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. 

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. SEC. 745, WHILE IN THE COURT OF
CLAIMS INTEREST DOES NOT BEGIN TO RUN UNTIL THE ENTRY OF JUDGMENT.  28
U.S.C. (SUPP. IV) SEC. 2516. 

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:  "LEGAL OBLIGATIONS THAT EXIST BUT CANNOT BE
ENFORCED ARE GHOSTS THAT ARE SEEN IN THE LAW BUT THAT ARE ELUSIVE TO
THE GRASP." 

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, 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, AND BRUNER V. UNITED STATES, 343 U.S. 112.  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. 

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. SEC. 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.  REVERSED.  MR. JUSTICE DOUGLAS CONCURS IN THE
RESULT. 
..END :





FEDERAL TRADE COMMISSION V. MOTION PICTURE ADVERTISING SERVICE CO., INC.
344 U.S. 392 


NO. 75.  ARGUED DECEMBER 8, 1952 - DECIDED FEBRUARY 2, 1953 - 194 F.2D
633, REVERSED. 


1.  RESPONDENT PRODUCES ADVERTISING MOTION PICTURES AND DISTRIBUTES
THEM IN INTERSTATE COMMERCE.  IT HAD EXCLUSIVE CONTRACTS WITH 40% OF
THE THEATRES WHICH EXHIBIT SUCH FILMS IN THE AREA WHERE IT OPERATES. 
IT AND THREE OTHER COMPANIES HAD EXCLUSIVE CONTRACTS WITH 75% OF SUCH
THEATRES IN THE UNITED STATES.  THE FEDERAL TRADE COMMISSION FOUND,
UPON SUBSTANTIAL EVIDENCE, THAT RESPONDENT'S EXCLUSIVE CONTRACTS
UNREASONABLY RESTRAIN COMPETITION AND TEND TO MONOPOLY, AND THAT THEIR
USE WAS AN "UNFAIR METHOD OF COMPETITION" IN VIOLATION OF SEC. 5 OF THE
FEDERAL TRADE COMMISSION ACT.  IT ISSUED AN ORDER PROHIBITING
RESPONDENT FROM ENTERING INTO ANY SUCH EXCLUSIVE CONTRACT FOR MORE THAN
A YEAR OR FROM CONTINUING IN EFFECT ANY EXCLUSIVE PROVISION OF AN
EXISTING CONTRACT LONGER THAN A YEAR AFTER SERVICE OF THE ORDER.  HELD:
THE ORDER IS SUSTAINED.  PP. 393-397. 

(A)  THE COMMISSION DID NOT EXCEED THE LIMITS OF ITS ALLOWABLE
JUDGMENT IN RESTRICTING THE EXCLUSIVE CONTRACTS TO ONE-YEAR TERMS.  PP.
395-396. 

2.  A PLEA OF RES JUDICATA TO THE PRESENT PROCEEDING OF THE
COMMISSION, BASED ON A FORMER PROCEEDING WHICH WAS DIRECTED AT A
CONSPIRACY BETWEEN RESPONDENT AND OTHER DISTRIBUTORS INVOLVING THE USE
OF EXCLUSIVE AGREEMENTS, CANNOT BE SUSTAINED, SINCE THE PRESENT
PROCEEDING CHARGES NO CONSPIRACY AND THE ISSUES LITIGATED AND
DETERMINED ARE NOT THE SAME AS THOSE IN THE EARLIER ONE.  PP. 397-398. 

FEDERAL TRADE COMMISSION V. MOTION PICTURE ADVERTISING SERVICE CO.,
INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

IN A PROCEEDING UPON A COMPLAINT CHARGING "UNFAIR METHODS OF
COMPETITION" IN VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION
ACT, THE COMMISSION ENTERED A CEASE AND DESIST ORDER AGAINST
RESPONDENT.  47 F.T.C. 378.  THE COURT OF APPEALS REVERSED.  194 F.2D
633.  THIS COURT GRANTED CERTIORARI.  344 U.S. 811.  REVERSED, P. 398. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

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 CONTAIN 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. 

THE FEDERAL TRADE COMMISSION, THE PETITIONER, FILED A COMPLAINT
CHARGING RESPONDENT WITH THE USE OF "UNFAIR METHODS OF COMPETITION" IN
VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, 38 STAT. 717,
719, 52 STAT. 111, 15 U.S.C. SEC. 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 HAVE
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.  (FN1)  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.  194 F.2D 633. 

THE "UNFAIR METHODS OF COMPETITION," WHICH ARE CONDEMNED BY SEC. 5(A)
OF THE ACT, ARE NOT CONFINED TO THOSE THAT WERE ILLEGAL AT COMMON LAW
OR THAT WERE CONDEMNED BY THE SHERMAN ACT.  FEDERAL TRADE COMMISSION V.
KEPPEL & BRO., 291 U.S. 304.  CONGRESS ADVISEDLY LEFT THE CONCEPT
FLEXIBLE TO BE DEFINED WITH PARTICULARITY BY THE MYRIAD OF CASES FROM
THE FIELD OF BUSINESS.  ID., PP. 310-312.  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) - TO STOP IN THEIR INCIPIENCY ACTS AND
PRACTICES WHICH, WHEN FULL BLOWN, WOULD VIOLATE THOSE ACTS (SEE FASHION
GUILD V. FEDERAL TRADE COMMISSION, 312 U.S. 457, 463, 466), AS WELL AS
TO CONDEMN AS "UNFAIR METHODS OF COMPETITION" EXISTING VIOLATIONS OF
THEM.  SEE FEDERAL TRADE COMMISSION V. CEMENT INSTITUTE, 333 U.S. 683,
691. 

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 SEC. 5(A) OF THE FEDERAL TRADE
COMMISSION ACT. 

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.  (FN2)  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; FEDERAL TRADE COMMISSION V. CEMENT INSTITUTE, 333 U.S. 683, 726
727) IN LIMITING THEIR TERM TO ONE YEAR.  (FN3) 

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.  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 SEC. 3 OF THE CLAYTON ACT (FN4) 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. 

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 JUDICATA 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.  REVERSED. 

FN1  COMPARABLE FINDINGS AND LIKE ORDERS WERE ENTERED IN EACH OF THE
THREE COMPANION CASES.  IN THE MATTER OF REID H. RAY FILM INDUSTRIES,
47 F.T.C. 326; IN THE MATTER OF ALEXANDER FILM CO., 47 F.T.C. 345; IN
THE MATTER OF UNITED FILM AD SERVICE, INC., 47 F.T.C. 362. 

FN2  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 1 YEAR IS NOT AN UNDUE RESTRAINT UPON COMPETITION."  47 F.T.C., AT
389. 

FN3  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 COTERMINOUS 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 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. 

FN4  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. SEC. 14. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

MY DOUBTS THAT THE COMMISSION HAS ADEQUATELY SHOWN THAT IT HAS BEEN
GUIDED BY RELEVANT CRITERIA IN DEALING WITH ITS FINDINGS UNDER SEC. 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. 

MY PRIMARY CONCERN IS THAT THE COMMISSION HAS NOT RELATED ITS
ANALYSIS OF THIS INDUSTRY TO THE STANDARDS OF ILLEGALITY IN SEC. 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. 

APART FROM UNCRITICAL CITATIONS IN THE BRIEF HERE, (FN1) 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, 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
314.  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.  (FN2)  IN ANY EVENT, THE COMMISSION HAS NOT FOUND
ANY SHERMAN LAW VIOLATION. 

BUT WE ARE TOLD, AS IS OF COURSE TRUE, THAT SEC. 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 HIS 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. 

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 SEC. 3 OF THE CLAYTON ACT, I SHALL ASSUME
THAT IT COULD HAVE BEEN BROUGHT UNDER SEC. 5 OF THE FEDERAL TRADE
COMMISSION ACT, SO THAT RESPONDENT CANNOT ARGUE THE INAPPLICABILITY OF
THE DECISION MERELY BECAUSE THE LANGUAGE OF SEC. 3 MAY BE
INAPPLICABLE.  BUT TAKING THAT CASE SIMPLY AS AN EXPRESSION OF "POLICY"
UNDERLYING SEC. 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 314, 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. 

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.  (FN3)  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 314.  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. 

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. 

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 SEC. 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, 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.  (FN4)  CF. FEDERAL TRADE COMMISSION V.
KLESNER, 280 U. S. 19. 

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.  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
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. 

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. 
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. 

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.)  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. 

I WOULD HAVE THE COURT OF APPEALS REMAND THIS CASE TO THE
COMMISSION. 

FN1  THE DECISIONS OF THIS COURT RELIED ON DO NOT DISPOSE OF THIS
CASE.  IN INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 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 SALT SALES IN ONE YEAR AMOUNTED TO
$500,000 BY THE PATENTEE.  TO THE EXTENT THAT DECISION IS PREDICATED ON
A SHERMAN LAW VIOLATION, IT SEEMS INAPPLICABLE HERE.  IN UNITED STATES
V. YELLOW CAB CO., 332 U.S. 218, 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., 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. 

FN2  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.  CF. UNITED STATES V. OREGON MED.  SOC., 343 U.S. 326, 332. 

FN3  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. 
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. 
FN4  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. 
..END :




STONE V. NEW YORK CHICAGO & ST. LOUIS RAILROAD CO. 344 U.S. 407 


NO. 320.  ARGUED JANUARY 14, 1953 - DECIDED FEBRUARY 2, 1953 - 249
S.W.2D 442, REVERSED. 


IN THIS ACTION BROUGHT IN A STATE COURT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, TO RECOVER DAMAGES FOR AN INJURY SUFFERED BY PETITIONER
WHILE WORKING AS A MEMBER OF A SECTION CREW REMOVING OLD OR WORN
CROSSTIES ON RESPONDENT'S RAILROAD LINE, THE ISSUES OF NEGLIGENCE AND
CAUSATION WERE PECULIARLY FOR THE JURY; AND THE REVERSAL OF A VERDICT
FOR PETITIONER ON THE GROUND THAT A SUBMISSIBLE CASE HAD NOT BEEN MADE
OUT WAS ERRONEOUS.  PP. 407-410. 

STONE V. NEW YORK, CHICAGO & ST. LOUIS RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

IN AN ACTION IN A STATE COURT UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, THE VERDICT WAS FOR THE PLAINTIFF.  THE STATE SUPREME COURT
REVERSED.  249 S.W.2D 442.  THIS COURT GRANTED CERTIORARI.  344 U.S.
863.  REVERSED, P. 410. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

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. SEC. 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.  249 S.W.2D 442.  THE CASE IS HERE ON CERTIORARI. 
344 U.S. 863. 

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. 

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. 

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 CROWBAR, ONE HAMMERING WITH A MAUL; AND IT TURNED OUT THAT THE
TIE HAD A SPIKE DRIVEN THROUGH IT AND EXTENDING INTO THE GROUND. 

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.  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; URIE V.
THOMPSON, 337 U.S. 163, 178.  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. B.&O.R. CO., 323
U.S. 600, 604.  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., P. 605.  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; CORAY V. SOUTHERN PACIFIC CO., 335 U.S. 520,
523; CARTER V. ATLANTA & ST. A.B.R. CO., 338 U.S. 430, 433.  REVERSED. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED AND MR. JUSTICE
JACKSON JOIN, DISSENTING. 

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. 

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. 

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. 

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. 

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 BY THE SAME
REASONING PROCESS REACH OPPOSITE CONCLUSIONS ON THE FACTS. 

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. 

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.   AND SO I DISSENT HERE
BECAUSE, WHILE I AM CLEAR THAT EQUALLY UNDERSTANDING AND FAIR-MINDED
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 AS TO NEGLIGENCE OR AS TO
CAUSATION."  249 S.W.2D 442, 449.  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. 
..END :







GORDON V. UNITED STATES 344 U.S. 414 


NO. 182.  ARGUED DECEMBER 17-18, 1952 - DECIDED FEB. 2, 1953 - 196 F.2D
886, REVERSED. 


PETITIONERS WERE CONVICTED IN A FEDERAL DISTRICT COURT OF UNLAWFULLY
POSSESSING AND TRANSPORTING GOODS STOLEN WHILE IN INTERSTATE COMMERCE. 
ON CROSS-EXAMINATION, A KEY GOVERNMENT WITNESS ADMITTED THAT (1) PRIOR
TO THE TRIAL, HE HAD GIVEN TO GOVERNMENT AGENTS WRITTEN STATEMENTS
WHICH CONFLICTED WITH HIS TESTIMONY INCRIMINATING PETITIONERS AT THE
TRIAL, AND (2) HE HAD PLEADED GUILTY IN ANOTHER FEDERAL COURT TO
UNLAWFUL POSSESSION OF THE SAME STOLEN GOODS AND HAD NOT YET BEEN
SENTENCED.  HELD:

1.  IN THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT ERRED IN
DENYING PETITIONERS' MOTION FOR THE PRODUCTION AND INSPECTION OF SUCH
CONFLICTING WRITTEN STATEMENTS IN THE POSSESSION OF THE GOVERNMENT. 
PP. 417-421. 

2.  THE TRIAL COURT ERRED IN EXCLUDING FROM EVIDENCE A TRANSCRIPT OF
THE PROCEEDINGS IN THE OTHER COURT SHOWING THAT, IN ACCEPTING THE
GUILTY PLEA AND DEFERRING SENTENCE OF THIS WITNESS, THE JUDGE HAD
ADVISED HIM "TO TELL THE PROBATION AUTHORITIES THE WHOLE STORY EVEN
THOUGH IT MIGHT INVOLVE OTHERS."  PP. 421-422. 

3.  THE COMBINATION OF THESE TWO ERRORS WAS SUFFICIENTLY PREJUDICIAL
TO REQUIRE REVERSAL OF PETITIONERS' CONVICTION.  PP. 422-423. 

GORDON ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PETITIONERS WERE CONVICTED IN A FEDERAL DISTRICT COURT OF UNLAWFUL
POSSESSION AND TRANSPORTATION OF GOODS STOLEN WHILE IN INTERSTATE
COMMERCE.  THE COURT OF APPEALS AFFIRMED.  196 F.2D 886.  THIS COURT
GRANTED CERTIORARI.  344 U.S. 813.  REVERSED, P. 423. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONERS GORDON AND MACLEOD WERE CONVICTED ON AN INDICTMENT OF
FOUR COUNTS, TWO CHARGING UNLAWFUL POSSESSION OF GOODS STOLEN WHILE IN
INTERSTATE COMMERCE (FN1) AND TWO THAT DEFENDANTS CAUSED THIS PROPERTY
TO BE FURTHER TRANSPORTED IN INTERSTATE COMMERCE.  (FN2)  THE COURT OF
APPEALS AFFIRMED, (FN3) AND WE GRANTED CERTIORARI LIMITED TO QUESTIONS
CONCERNING PRODUCTION AND ADMISSION OF DOCUMENTARY EVIDENCE TENDING TO
IMPEACH THE TESTIMONY OF A PROSECUTION WITNESS.  (FN4) 

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 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. 

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. 

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. 

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. 

THE TRIAL JUDGE IN HIS CHARGE AND THE COURT OF APPEALS IN ITS OPINION
(FN5) 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. 

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. 

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."  (FN6)  APPARENTLY, EARLIER COMMON LAW DID NOT PERMIT
THE ACCUSED TO REQUIRE PRODUCTION OF SUCH DOCUMENTS.  (FN7)  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.  (FN8)  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. 

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.  (FN9)  NOR WAS
THIS A DEMAND FOR STATEMENTS TAKEN FROM PERSONS OR INFORMANTS NOT
OFFERED AS WITNESSES.  (FN10)  THE GOVERNMENT DID NOT ASSERT ANY
PRIVILEGE FOR THE DOCUMENTS ON GROUNDS OF NATIONAL SECURITY,
CONFIDENTIAL CHARACTER, PUBLIC INTEREST, OR OTHERWISE. 

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.  (FN11)  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."  (FN12)  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. 

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.  (FN13)
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. 

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.
(FN14)  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.  (FN15) 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. 

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.    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 HARMLESS (FN16) 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.  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. 

FN1  18 U.S.C. (SUPP. V) SEC. 659. 

FN2  18 U.S.C. (SUPP. V) SEC. 2314. 

FN3  196 F.2D 886. 

FN4  344 U.S. 813. 

FN5  196 F.2D 886, 888. 

FN6  FUNK V. UNITED STATES, 290 U.S. 371; FED. RULES CRIM. PROC.,
26. 

FN7  6 WIGMORE ON EVIDENCE, SEC. 1859G. 

FN8  2 WHARTON'S CRIMINAL EVIDENCE (11TH ED.)  SEC.  785. 

FN9  AS TO THE PRETRIAL DISCOVERY STAGE, COMPARE FED. RULES CIV.
PROC., 34, WITH THE NARROWER PROVISIONS OF FED. RULES CRIM. PROC., 16. 

FN10  IN GOLDMAN V. UNITED STATES, 316 U.S. 129, THE NOTES SOUGHT TO
BE INSPECTED HAD NEITHER BEEN USED IN COURT, NOR WAS THERE ANY PROOF
THAT THEY WOULD SHOW PRIOR INCONSISTENT STATEMENTS. 

FN11  ASGILL V. UNITED STATES, 60 F.2D 776; UNITED STATES V.
KRULEWITCH, 145 F.2D 76, 79; 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, 95-96; PEOPLE V. WALSH, 262 N.Y. 140,
186 N.E. 422. 

FN12  PEOPLE V. DAVIS, 52 MICH. 569, 573, 18 N.W. 362, 363. 

FN13  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. 

FN14  3 WIGMORE ON EVIDENCE, SEC. 1037; 3 WHARTON'S CRIMINAL EVIDENCE
(11TH ED.)  SEC.  1309. 

FN15  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. 

FN16  FED. RULES CRIM. PROC., 52 ADMONISHES US THAT "ANY ERROR,
DEFECT, IRREGULARITY OR VARIANCE WHICH DOES NOT AFFECT SUBSTANTIAL
RIGHTS SHALL BE DISREGARDED." 
..END :




















BROCK V. NORTH CAROLINA 344 U.S. 424 


NO. 34.  ARGUED OCTOBER 23, 1952 - DECIDED FEBRUARY 2, 1953 - 234 N.C.
390, 67 S.E.2D 282, AFFIRMED. 


AT A CRIMINAL PROSECUTION OF PETITIONER IN A NORTH CAROLINA STATE
COURT, THE JUDGE DECLARED A MISTRIAL ON THE MOTION OF THE PROSECUTION
AFTER TWO OF THE STATE'S WITNESSES REFUSED TO GIVE ANY TESTIMONY BEFORE
THE JURY.  PETITIONER WAS LATER CONVICTED OF THE SAME OFFENSE IN
ANOTHER TRIAL AND HIS PLEA OF DOUBLE JEOPARDY OVERRULED.  HELD:  TO TRY
PETITIONER A SECOND TIME FOR THE SAME OFFENSE AFTER A FIRST TRIAL HAD
BEEN INTERRUPTED IN THE INTERESTS OF JUSTICE DID NOT VIOLATE THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 424-428. 

BROCK V. NORTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

PETITIONER WAS CONVICTED IN A CRIMINAL PROSECUTION IN A NORTH
CAROLINA STATE COURT.  THE STATE SUPREME COURT AFFIRMED.  234 N.C. 390,
67 S.E.2D 282.  THIS COURT GRANTED CERTIORARI.  343 U.S. 914. 
AFFIRMED, P. 428. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

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 ASSUALT AND HAD FIRED THE SHOTS. 

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 IT 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. 

THE SUPREME COURT OF NORTH CAROLINA AFFIRMED THE CONVICTIONS OF COOK
AND 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. 

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, 13 IRED.  L. (35 N.C.)  203. 

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. CONNECTICUT, 302 U.S. 319; TWINING V. NEW
JERSEY, 211 U.S. 78. 

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. 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. 

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: 

"IS THAT KIND OF DOUBLE JEOPARDY TO WHICH THE STATUTE 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. 

HERE THE ANSWER MUST BE THE SAME. 

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; THOMPSON V. UNITED STATES, 155 U.S. 271, 273-274.  AS WAS SAID IN
WADE V. HUNTER, SUPRA, P. 690, "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 PATTERN 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. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

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. 

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; KEPNER V. UNITED
STATES, 195 U.S. 100; TRONO V. UNITED STATES, 199 U.S. 521; IN RE
BRADLEY, 318 U.S. 50; AND WADE V. HUNTER, 336 U.S. 684, 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. 

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. 

MR. CHIEF JUSTICE VINSON, DISSENTING. 

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. 

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. 

JUDGMENT HAD NOT BEEN ENTERED ON THE VERDICT WHEN BROCK WAS PLACED ON
TRIAL. 

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. 

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. 

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.  231 N.C.  617, 58 S.E.2D 625 (1950). 

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. 

THE SUPREME COURT OF NORTH CAROLINA AFFIRMED THE JUDGMENT, HOLDING
THAT BROCK'S PLEA OF FORMER JEOPARDY WAS PROPERLY DENIED.  STATE V.
BROCK, 234 N.C. 390, 67 S.E.2D 282 (1951). 

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.  343 U.S. 914 (1952). 

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. 

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."  (FN1)    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.    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.  (FN2)  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. CALIFORNIA, 342
U.S. 165 (1952).  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. COLORADO, 338 U.S. 25
(1949). 

I GRANT THAT NORTH CAROLINA CONTENDS THAT ITS PRESENT PROCEDURE DOES
NOT VIOLATE FUNDAMENTAL FAIRNESS.  IT WAS NOT ALWAYS SO.  IN STATE V.
GARRIGUES, 2 N.C. (1 HAYWOOD, 2D ED.)  276, 278 (1795), THE SUPREME
COURT OF NORTH CAROLINA ADOPTED THE CONTRARY RULE IN THE FOLLOWING
STRONG LANGUAGE: 

"  ...  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 OF THE SAME ADVANTAGES - SO HE WAS DISCHARGED." 

IN THE CASE OF IN RE SPIER, 12 N.C. 491, 493, 494, 498, 499, 502
(1828), THE COURT POINTED OUT: 

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." 

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 OCCURED
IN THAT PERIOD OF MISRULE AND PERSECUTION, PRECEEDING 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]  ...  . 

"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. 

     *         *       *         *         * 

"  ...  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." 

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, 222
N.C. 162, 22 S.E.2D 231 (1942); STATE V. GUICE, 201 N.C. 761, 161 S.E.
533 (1931); STATE V. BASS, 82 N.C. 570 (1880); STATE V. ANDREWS, 166
N.C. 349, 81 S.E. 416 (1914); AND STATE V. ELLIS, 200 N.C. 77, 156 S.E.
157 (1930). 

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: 

"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."  (FN3) 

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."  (FN4) 

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.  (FN5)  AND EACH OF THOSE FIVE STATES HAS THE
PROHIBITION AGAINST DOUBLE JEOPARDY AS PART OF ITS COMMON LAW.  (FN6) 

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.  (FN7)  A SEVENTH, IOWA, IS IN ACCORD WITH THE ABOVE VIEW, (FN8)
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.  (FN9)  IN ALABAMA, THE EIGHTH STATE, TWO CASES HAVE
PERMITTED A SECOND TRIAL.  (FN10)  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,
(FN11) THE ALABAMA SUPREME COURT EVEN INDICATED THE RESULT PROBABLY
WOULD BE DIFFERENT IF THE PROSECUTOR MERELY HAD BEEN UNPREPARED AT THE
FIRST TRIAL. 

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.  (FN12) 

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 HARD-WON VICTORY ACHIEVED IN THE FIELD OF
"DOUBLE JEOPARDY" OUGHT NOT BE LOST EVEN IN A SMALL PART BY THE
AFFIRMANCE OF THIS CASE.   THE ATTORNEY GENERAL OF NORTH CAROLINA
RELIES UPON PALKO V. CONNECTICUT, 302 U.S. 319 (1937), 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.  (FN13)  THE SECOND TRIAL THEN
FOLLOWED.  IN THE CASE BEFORE THE COURT, NO ERROR OF LAW TAINTED THE
FIRST TRIAL.   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. 

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. 

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, MR.
JUSTICE CARDOZO SAID: 

"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."  (FN14) 

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. 

WADE V. HUNTER, 336 U.S. 684 (1949), 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, 155 U.S. 271, 273-274 (1894), 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: 

"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."  (FN15)    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. 

FN1  R. 16. 

FN2  CF. THE CLASSIC EXPRESSION OF MR. JUSTICE CARDOZO IN THE OPINION
OF THIS COURT IN PALKO, "THE EDIFICE OF JUSTICE STANDS, ITS SYMMETRY,
TO MANY, GREATER THAN BEFORE."  302 U.S. 319, 328 (1937). 

FN3  201 N.C., AT 763, 161 S.E., AT 534 (1931). 

FN4  82 N.C., AT 575 (1880). 

FN5  STATE V. BRUNN, 22 WASH. 2D 120, 154 P.2D 826, 157 A.L.R. 1049
(1945). 

FN6  STATE V. BENHAM, 7 CONN. 414 (1829); GILPIN V. STATE, 142 MD.
464, 121 A. 354 (1923); COMMONWEALTH V. MCCAN, 277 MASS. 199, 178 N.E.
633, 78 A.L.R. 1208 (1931); STATE V. CLEMMONS, 207 N.C. 276, 176 S.E.
760 (1934); AND STATE V. O'BRIEN, 106 VT. 97, 170 A. 98 (1934). 

FN7  ALLEN V. STATE, 52 FLA. 1, 41 SO. 593 (1960)(DURING FIRST TRIAL
DEFENDANT SECURED CONTINUANCE TO SECURE ABSENT WITNESS, PROSECUTOR THEN
MOVED FOR AND SECURED MISTRIAL); STATE EX REL. MEADOR V. WILLIAMS, 117
MO. APP. 564, 92 S.W. 151 (1960)(PROSECUTION WITNESS DID NOT RESPOND TO
SUBPOENA); PEOPLE V. BARRETT, 2 CAINES (N.Y.)  304, 2 AM. DEC. 239
(1805) (STATE COULD NOT USE SECONDARY EVIDENCE AS TO DOCUMENT SINCE
DEFENDANT NOT GIVEN DUE NOTICE TO PRODUCE); STATE V. RICHARDSON, 47
S.C. 166, 25 S.E. 220 (1896)(PROSECUTOR BY MISTAKE TOLD WITNESS TO GO
HOME); PIZANO V. STATE, 20 TEX. APP. 139, 54 AM. REP. 511 (1886)
(PROSECUTOR ANSWERED READY AND STARTED TRIAL AFTER BEING INCORRECTLY
INFORMED BY SHERIFF THAT ALL WITNESSES WERE PRESENT); STATE V. LITTLE,
120 W.VA. 213, 197 S.E. 626 (1938)(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. 

FN8  STATE V. CALLENDINE, 8 IOWA 288 (1859)(WITNESS INCOMPETENT TO
TESTIFY BECAUSE HIS NAME NOT INDORSED ON INDICTMENT, MISTRIAL ON MOTION
OF THE COURT). 

FN9  STATE V. PARKER, 66 IOWA 586, 24 N.W. 225 (1885), AND STATE V.
FALCONER, 70 IOWA 416, 30 N.W. 655 (1886). 

FN10  STATE V. NELSON, 7 ALA. 610 (1845)(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,
35 ALA. 351 (1860)(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). 

FN11 "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 IMPANNELED, OR AN
IMPROPER JUROR SWORN."  STATE V. NELSON, SUPRA, AT 614. 

FN12  STATE V. DOVE, 222 N.C. 162, 22 S.E.2D 231 (1942)(COURT ORDERED
MISTRIAL SINCE EVIDENCE DESIRED BY STATE "WAS NOT PRESENTLY
AVAILABLE"); STATE V. GUICE, 201 N.C. 761, 161 S.E. 533
(1931)(DEFENDANT MOVED FOR NONSUIT AFTER STATE HAD OFFERED ALL ITS
TESTIMONY; COURT INSTEAD OF RULING ON THE MOTION FOR NONSUIT DECLARED A
MISTRIAL). 

FN13  STATE V. PALKO, 121 CONN. 669, 186 A. 657 (1936). 

FN14  302 U.S., AT 328 (1937). 

FN15  THOMPSON V. UNITED STATES, 155 U.S. 271, 274 (1894). 

MR. JUSTICE DOUGLAS, DISSENTING. 

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. 

"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,* 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, 242. 

*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. TR. 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 16, 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. 

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. 
..END :























SOUTH BUFFALO RAILWAY CO. V. AHERN 344 U.S. 367 


NO. 179.  ARGUED DECEMBER 17, 1952 - DECIDED JANUARY 19, 1953 - 303 N.Y.
545, 104 N.E.2D 898, AFFIRMED. 


AN EMPLOYEE OF APPELLANT RAILROAD WAS INJURED WHILE EMPLOYED IN
INTERSTATE COMMERCE.  HE APPLIED FOR COMPENSATION UNDER THE NEW YORK
WORKMEN'S COMPENSATION LAW, SEC. 113 OF WHICH PERMITS THE STATE BOARD
TO ASSUME JURISDICTION IN CASES ARISING OUT OF INTERSTATE COMMERCE ONLY
WHEN THE CLAIMANT, THE EMPLOYER AND THE INSURANCE CARRIER WAIVE THEIR
FEDERAL RIGHTS AND REMEDIES.  APPELLANT DID NOT OBJECT TO THE
JURISDICTION OF THE STATE BOARD AND MADE PAYMENTS OF DISABILITY
COMPENSATION FOR OVER FOUR YEARS UNDER SUCCESSIVE AWARDS BY THAT
BOARD.  AFTER THE EMPLOYEE'S REMEDIES UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT HAD LAPSED AND THE EMPLOYEE HAD DIED, APPELLANT OBJECTED
TO A FINAL AWARD OF DISABILITY COMPENSATION BY THE STATE BOARD ON THE
GROUND THAT THE STATE LAW WAS IN CONFLICT WITH THE FEDERAL EMPLOYERS'
LIABILITY ACT.  HELD: 

1.  SINCE THE STATE COURT CONSTRUED THE STATE LAW AS MERELY
PERMISSIVE, ITS GRANT OF JURISDICTION DOES NOT CONFLICT WITH THE
FEDERAL ACT.  PP. 370-372. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, APPELLANT WAS ESTOPPED TO DENY
LIABILITY UNDER THE STATE LAW.  PP. 372-373. 

SOUTH BUFFALO RAILWAY CO. V. AHERN ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

THE APPELLATE DIVISION OF THE NEW YORK SUPREME COURT SUSTAINED AN
AWARD OF DISABILITY COMPENSATION TO APPELLANT'S EMPLOYEE UNDER THE NEW
YORK WORKMEN'S COMPENSATION LAW.  277 APP. DIV. 1067, 100 N.Y.S.2D
639.  THE NEW YORK COURT OF APPEALS AFFIRMED.  303 N.Y. 545, 104 N.E.2D
898.  ON APPEAL TO THIS COURT, AFFIRMED, P. 373. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

DISABILITY AWARDS BY THE NEW YORK WORKMEN'S COMPENSATION BOARD TO AN
INTERSTATE RAILROAD EMPLOYEE PRECIPITATE THIS ATTACK ON SEC. 113 OF
THAT STATE'S WORKMEN'S COMPENSATION LAW AS UNCONSTITUTIONALLY
CONFLICTING WITH THE FEDERAL EMPLOYERS' LIABILITY ACT.  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.  (FN1)  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 CAUSUALLY
RELATED TO THE INJURIES ALLEGED.  (FN2)  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.  (FN3)  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.  (FN4)  THE
APPELLATE DIVISION OF THE STATE SUPREME COURT UPHELD THE AWARD, AND THE
COURT OF APPEALS AFFIRMED.  (FN5)  THIS DECISION BY THE HIGHEST COURT
OF THE STATE INVOKED SEC. 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  ...  ." 
(FN6)  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. 

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.  (FN7)
BUT WE ARE TOLD THAT, UNDER THE NEW YORK COURT OF APPEALS' DECISION,
SEC.  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 SEC. 113 UNCONSTITUTIONALLY
AUTHORIZES THE WORKMEN'S COMPENSATION BOARD TO INVADE A FIELD
FORECLOSED BY GOVERNING FEDERAL LEGISLATION. 

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."  (FN8)  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
SEC. 113, A PURELY "PERMISSIVE STATUTE," (FN9) 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." 
(FN10) 

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
PROVIDENCE 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, 244 U.S. 170 (1917).  THE NEW YORK COURT OF APPEALS,
HOWEVER, MANIFESTED METICULOUS CARE TO AVOID COLLISION; IT CONSTRUED
SEC. 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."  (FN11)  THE DIFFERENCE BETWEEN COERCION
AND PERMISSION IS DECISIVE; NEW YORK'S JURISDICTIONAL GRANT, SO
CONFINED, DOES NOT TRANSGRESS. 

TO BE SURE, PECULIARITIES OF LOCAL LAW MAY NOT GNAW AT RIGHTS ROOTED
IN FEDERAL LEGISLATION.  AMERICAN RAILWAY EXPRESS CO. V. LEVEE, 263
U.S. 19, 21 (1923); DAVIS V. WECHSLER, 263 U.S. 22, 24 (1923). 
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., 332 U.S. 625 (1948).  THE VALIDITY OF SUCH AN AGREEMENT,
HOWEVER, RAISES A FEDERAL QUESTION TO BE RESOLVED BY FEDERAL LAW.  DICE
V. AKRON, C.&Y.R. CO., 342 U.S. 359 (1952); CF.  GARRETT V. MOORE
MCCORMACK CO., 317 U.S. 239 (1942).  (FN12) 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., 338 U.S. 263 (1949); DUNCAN V. THOMPSON,
315 U.S. 1 (1942).  (FN13)  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.  AFFIRMED. 

FN1  SEE R. 4. 

FN2  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. 

FN3  R. 88-91. 

FN4  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. 

FN5  303 N.Y. 545, 104 N.E.2D 898 (1952), AFFIRMING 277 APP. DIV.
1067, 100 N.Y.S.2D 639 (1950). 

FN6  "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, SEC. 113. 

FN7  "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.
SEC. 51. 

FN8  303 N.Y., AT 555, 104 N.E.2D, AT 904. 

FN9  303 N.Y., AT 555, 104 N.E.2D, AT 903. 

FN10  303 N.Y., AT 564, 104 N.E.2D, AT 909. 

FN11  303 N.Y., AT 555, 104 N.E.2D, AT 904. 

FN12  SEE ALSO HEAGNEY V. BROOKLYN EASTERN DISTRICT TERMINAL, 190
F.2D 976, 978 (1951); RICKETTS V. PENNSYLVANIA R. CO., 153 F.2D 757,
759 (1946).  WE NEED NOT NOW DECIDE WHETHER THE SYSTEMATIC SOLICITATION
OF SUCH AGREEMENTS WOULD RUN AFOUL OF SEC. 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.  SEC. 55. 

FN13  SEE PURVIS V. PENNSYLVANIA R. CO., 198 F.2D 631 (1952). 

MR. JUSTICE DOUGLAS, DISSENTING. 

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 CO. V. PORTER, 153
F.2D 827; HEAGNEY V. BROOKLYN EASTERN D. TERMINAL, 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. 

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, 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. 

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.    MR. JUSTICE BRANDEIS DISSENTED IN NEW YORK CENTRAL R.
CO. V. WINFIELD, 244 U.S. 147, 154, 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. 
..END :








CITY OF NEW YORK V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. 344 U.S.
293 


NO. 203.  ARGUED DECEMBER 19, 1952 - DECIDED JANUARY 12, 1953 - 197 F.2D
428, REVERSED. 


IN A RAILROAD REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY ACT, THE
COURT ORDERED "CREDITORS" TO FILE THEIR CLAIMS BY A CERTAIN DATE OR BE
DENIED PARTICIPATION EXCEPT FOR CAUSE SHOWN.  CREDITORS OTHER THAN
MORTGAGE TRUSTEES AND THOSE WHO HAD APPEARED IN COURT WERE NOTIFIED BY
PUBLICATION ONLY.  A CITY WHICH RECEIVED NO COPY OF THE ORDER DID NOT
FILE CLAIMS FOR ITS LOCAL-IMPROVEMENT LIENS ON SPECIFIC PARCELS OF THE
RAILROAD'S REAL ESTATE.  HELD:  A FINAL DECREE PROVIDING FOR TRANSFER
OF THE RAILROAD'S PROPERTIES TO A NEWLY ORGANIZED COMPANY COULD NOT
VALIDLY DESTROY OR BAR ENFORCEMENT OF THE CITY'S LIENS.  PP. 294-297. 

1.  THE CITY WAS A "CREDITOR" WITHIN THE MEANING OF SEC. 77(B) OF THE
BANKRUPTCY ACT.  PP. 295-296. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, PUBLICATION DID NOT CONSTITUTE
THE "REASONABLE NOTICE" TO THE CITY REQUIRED BY SEC. 77(C)(8).  P.
296. 

3.  THE BAR ORDER AGAINST THE CITY CANNOT BE SUSTAINED BECAUSE OF THE
CITY'S KNOWLEDGE THAT REORGANIZATION OF THE RAILROAD WAS TAKING PLACE
IN THE COURT.  P. 297. 

CITY OF NEW YORK V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE DISTRICT COURT ENJOINED ENFORCEMENT OF A CITY'S LIENS FOR LOCAL
IMPROVEMENTS ON SPECIFIC REAL ESTATE OF A RAILROAD WHICH HAD SINCE BEEN
REORGANIZED UNDER THE BANKRUPTCY ACT.  105 F. SUPP. 413.  THE COURT OF
APPEALS AFFIRMED.  197 F.2D 428.  THIS COURT GRANTED CERTIORARI.  344
U.S. 809.  REVERSED, P. 297. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER UNDER THE CIRCUMSTANCES OF THIS
CASE REORGANIZATION OF THE RESPONDENT RAILROAD UNDER SEC. 77 OF THE
BANKRUPTCY ACT (FN1) 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 SEC. 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.  (FN2)  NEW YORK THUS RECEIVED NO COPY OF
THE BAR ORDER.  ITS LIEN CLAIMS WERE NEVER FILED. 

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. 
(FN3)  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. 

(1)  WE REJECT THE CITY'S CONTENTION THAT IT WAS NOT A CREDITOR
WITHIN THE MEANING OF SEC. 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."  (FN4)  WE HAD REASON TO COMMENT RECENTLY
ON THE BROAD COVERAGE OF THIS SECTION IN GARDNER V. NEW JERSEY, 329
U.S. 565, WHERE WE HELD THAT STATE TAX LIENS MADE STATES "CREDITORS"
FOR PURPOSES OF SEC. 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. 

(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. SEC. 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. 

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.  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. NEW JERSEY, 341 U.S. 428.  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 SEC. 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 POST-OFFICE 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. 

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. 

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.  REVERSED. 

FN1  47 STAT. 1474, AS AMENDED, 49 STAT. 911, 11 U.S.C. SEC. 205. 

FN2  THE OTHER NEWSPAPERS WERE LOCATED IN CONNECTICUT, MASSACHUSETTS
AND RHODE ISLAND. 

FN3  THE CITY HAS CONTENDED STRONGLY THAT THE DECREE SHOULD NOT BE SO
CONSTRUED, BUT WE FIND IT UNNECESSARY TO DISCUSS THIS QUESTION. 

FN4  "  ...  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. SEC. 205(B). 

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 SEC. 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. 
..END :





















AMERICAN TRUCKING ASSOCIATIONS, INC. V. UNITED STATES 344 U.S. 298 


NO. 26.  ARGUED NOVEMBER 17-18, 1952 - DECIDED JANUARY 12, 1953 - 101 F.
SUPP. 710 AND 103 F. SUPP. 694, AFFIRMED. 


UNDER THE MOTOR CARRIER ACT, 1935, AS AMENDED, THE INTERSTATE COMMERCE
COMMISSION PROMULGATED RULES GOVERNING THE USE BY AUTHORIZED MOTOR
CARRIERS OF EQUIPMENT NOT OWNED BY THEM BUT LEASED FROM THE OWNERS OR
OBTAINED BY INTERCHANGE WITH OTHER AUTHORIZED MOTOR CARRIERS.  THESE
RULES ABOLISH TRIP-LEASING AND REVENUE-SPLITTING WITH DRIVER-OWNERS;
REQUIRE WRITTEN CONTRACTS, CARRIER INSPECTION, CONTROL AND
RESPONSIBILITY FOR NONOWNED EQUIPMENT; AND, FOR INTERCHANGED EQUIPMENT,
REQUIRE DRIVERS EMPLOYED BY THE CERTIFIED CARRIER OVER WHOSE ROUTE IT
TRAVELS.  HELD: 

1.  THE PROMULGATION OF THESE RULES FOR AUTHORIZED CARRIERS IS WITHIN
THE COMMISSION'S POWER, DESPITE THE ABSENCE OF SPECIFIC REFERENCE TO
LEASING PRACTICES IN THE ACT.  PP. 308-313. 

2.  THE RULES DO NOT VIOLATE THE NATIONAL TRANSPORTATION POLICY.  PP.
313-314. 

3.  THE RULES AND THE EXEMPTIONS THEREFROM ARE NOT UNREASONABLE  PP.
314-316. 

4.  THE RULES DO NOT VIOLATE SEC. 208(A) OR SEC. 209(B), PROTECTING
THE CARRIERS' RIGHT TO AUGMENT THEIR EQUIPMENT.  PP. 316-317. 

5.  THEY DO NOT VIOLATE SEC. 203(B)(6), WHICH EXEMPTS FROM THE
COMMISSION'S JURISDICTION VEHICLES USED IN CARRYING ONLY LIVESTOCK,
FISH OR AGRICULTURAL COMMODITIES - THOUGH THEY MAY INCREASE THE COST OF
OPERATING SUCH VEHICLES.  PP. 317-318. 

6.  NOR WERE THE RULES THE PRODUCT OF PROCEEDINGS FATALLY AT VARIANCE
WITH REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT.  PP. 318-320. 

(A) SECTION 7(C) OF THE ADMINISTRATIVE PROCEDURE ACT, PROVIDING THAT
THE PROPONENT OF A RULE "SHALL HAVE THE BURDEN OF PROOF," IS
INAPPLICABLE; SINCE THESE RULES WERE PROMULGATED UNDER SEC. 204(A)(6)
OF THE MOTOR CARRIER ACT, WHICH REQUIRES NO RECORD OR HEARING.  PP. 318
320. 

(B)  SIMILARLY INAPPLICABLE IS SEC. 8(B) OF THE ADMINISTRATIVE
PROCEDURE ACT, WHICH REQUIRES THAT DECISIONS SHALL INCLUDE A STATEMENT
OF "FINDINGS AND CONCLUSIONS."  P. 320. 

7.  IN A CARRIER'S SUIT TO ENJOIN ENFORCEMENT OF THESE RULES, THE
DISTRICT COURT DID NOT ERR IN REFUSING TO PERMIT INTRODUCTION OF
EVIDENCE OF "CONFISCATION," THOUGH THE RULES MAY AFFECT THE VALUE OF
SOME GOING CONCERNS.  PP. 320-323. 

AMERICAN TRUCKING ASSOCIATIONS, INC. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ALABAMA.* 

*TOGETHER WITH NO. 35, EASTERN MOTOR EXPRESS, INC. ET AL. V. UNITED
STATES ET AL., AND NO. 36, SECRETARY OF AGRICULTURE V. UNITED STATES ET
AL., ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF INDIANA. 

TWO FEDERAL DISTRICT COURTS DECLINED TO ENJOIN ENFORCEMENT OF RULES
PROMULGATED BY THE INTERSTATE COMMERCE COMMISSION GOVERNING THE USE BY
MOTOR CARRIERS OF EQUIPMENT NOT OWNED BY THEM.  101 F. SUPP. 710; 103
F. SUPP. 694.  ON APPEAL TO THIS COURT, AFFIRMED, P. 323. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS ATTACK NEW INTERSTATE COMMERCE COMMISSION RULES
GOVERNING THE USE OF EQUIPMENT BY AUTHORIZED MOTOR CARRIERS WHEN THE
EQUIPMENT IS NOT OWNED BY THE CARRIER BUT IS LEASED FROM THE OWNER OR
OBTAINED BY INTERCHANGE WITH ANOTHER AUTHORIZED CARRIER.  THEY WERE
PRESCRIBED BY THE COMMISSION AND REPORTED EX PARTE NO. MC-43, LEASE AND
INTERCHANGE OF VEHICLES BY MOTOR CARRIERS, 52 M.C.C. 675.  AS WILL BE
SEEN FROM THE PORTIONS WE HAVE QUOTED IN THE APPENDIX, POST, P. 323,
THEY PRINCIPALLY REQUIRE CARRIER INSPECTION; WHEN THE EQUIPMENT IS
LEASED, CONTROL FOR A MINIMUM OF THIRTY DAYS AND A METHOD OF
COMPENSATION OTHER THAN DIVISION OF REVENUES BETWEEN LESSOR AND LESSEE;
AND, IN THE CASE OF USE OF ANOTHER CARRIER'S EQUIPMENT, AUTHORIZATION
TO THE EXCHANGE POINT AND ACTUAL TRANSFER OF CONTROL.  THUS THE
PRACTICE OF USING LEASED EQUIPMENT AND THAT OBTAINED BY INTERCHANGE IS
BROUGHT INTO CONFORMITY WITH THE REGULATION OF CARRIER-OWNED EQUIPMENT
TO AVOID EVILS THAT HAD GROWN UP IN THAT PRACTICE. 

SOME SIX SUITS WERE INSTITUTED TO TEST THE VALIDITY OF THE RULES IN
THE DISTRICT COURTS UNDER 28 U.S.C. SECS. 2321-2325.  THREE WERE STAYED
BY ORDERS AND ONE WAS NOT MOVED PENDING DISPOSITION OF THE INSTANT
CASES.  (FN1)  THESE CAME HERE ON DIRECT APPEAL FROM TWO SEPARATE
JUDGMENTS DENYING THE INJUNCTIVE RELIEF PRAYED FOR; ONE IN THE SOUTHERN
DISTRICT OF INDIANA, EASTERN MOTOR EXPRESS, INC. V. UNITED STATES, 103
F. SUPP.  694, AND THE OTHER IN THE NORTHERN DISTRICT OF ALABAMA,
AMERICAN TRUCKING ASSOCIATIONS, INC. V. UNITED STATES, 101 F. SUPP.
710.  THE ISSUES THERE CONSIDERED AND RESOLVED AGAINST THE APPLICANTS
CONCERNED THE COMMISSION'S AUTHORITY UNDER THE MOTOR CARRIER ACT OF
1935, INTERSTATE COMMERCE ACT, PART II, 49 STAT. 543, AS AMENDED, 54
STAT. 919, 49 U.S.C. SEC. 301 ET SEQ.; THE IMPACT OF THE RULES ON
AGRICULTURAL TRUCKING AND ON THE GUARANTEED RIGHT OF AUTHORIZED
CARRIERS TO AUGMENT THEIR EQUIPMENT; THE APPLICATION OF THE
ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, 5 U.S.C. SEC. 1001 ET SEQ.;
AND THE RIGHT OF THE PROTESTANTS TO INTRODUCE ADDITIONAL EVIDENCE IN
THE DISTRICT COURTS.  SINCE THERE WERE ONLY MINOR DIFFERENCES IN THE
CONTENT OF THE TWO CASES APPEALED, THEY MAY BE TREATED TOGETHER. 

I. INTRODUCTION.  - WE CONSIDER AT THE OUTSET THE EXISTING CONDITIONS
OF THE MOTOR TRUCK INDUSTRY AND ITS REGULATION AS DEVELOPED DURING THE
COMMISSION'S HEARINGS BECAUSE ONLY AGAINST SUCH A BACKGROUND ARE THE
RULES MEANINGFUL.  COMMISSION AUTHORIZATION IN THE FORM OF PERMITS OR
CERTIFICATES OF CONVENIENCE AND NECESSITY IS A PRECONDITION TO
INTERSTATE SERVICE BY VIRTUE OF THE MOTOR CARRIER ACT.  SUCH
AUTHORIZATION, EXCEPT UNDER THE "GRANDFATHER" CLAUSE, IS GRANTED ONLY
AFTER A SHOWING OF FITNESS AND ABILITY TO PERFORM AND A PUBLIC NEED FOR
THE PROFFERED SERVICE.  AND IT SPECIFICALLY LIMITS THE SCOPE AND
BUSINESS OF THE PERMITTED OPERATIONS IN THE CASE OF A CONTRACT CARRIER,
AND THE ROUTES AND TERMINI WHICH MAY BE SERVED BY A CERTIFICATED COMMON
CARRIER.  (FN2) 

THE ACT WAIVES THESE CONDITIONS OF AGENCY AUTHORIZATION AND SERVICE
LIMITATIONS FOR A SIZABLE PORTION OF THE INDUSTRY, HOWEVER.  MOST
IMPORTANT OF THE EXEMPT OPERATIONS ARE THOSE INVOLVING EQUIPMENT USED
IN THE TRANSPORTATION OF AGRICULTURAL PRODUCTS.  BY AND LARGE, THE
EQUIPMENT IN THIS CATEGORY IS OWNED AND OPERATED BY THE SAME PERSON. 
IT FALLS ONLY WITHIN THE COMMISSION'S JURISDICTION OVER DRIVERS'
QUALIFICATIONS, HOURS OF SERVICE AND SAFETY.  (FN3)  AND SO THERE IS NO
MANDATE ON THESE EXEMPT OWNER-OPERATORS TO PROVIDE ADEQUATE AND
NONDISCRIMINATORY SERVICE, ADHERE TO PUBLISHED RATES, AND COMPLY WITH
THE STRICT INSURANCE REQUIREMENTS IMPOSED ON CARRIERS AUTHORIZED FOR
GENERAL CARRIAGE.  (FN4) 

BECAUSE OF THE LIMITING CHARACTER OF THE REGULATORY SYSTEM,
AUTHORIZED CARRIERS HAVE DEVELOPED A WIDE PRACTICE OF USING NONOWNED
EQUIPMENT.  THEY HAVE MOVED IN TWO DIRECTIONS.  THE FIRST IS
INTERCHANGE.  THIS INCLUDES THOSE ARRANGEMENTS WHEREBY TWO OR MORE
CERTIFICATED CARRIERS PROVIDE FOR THROUGH TRAVEL OF A LOAD IN ORDER TO
MERGE THE ADVANTAGES OF CERTIFICATION TO SERVE DIFFERENT AREAS.   IN
THIS FASHION, A WHOLLY OR PARTIALLY LOADED TRAILER MAY BE EXCHANGED AT
THE ESTABLISHED INTERCHANGE POINT, OR EVEN AN ENTIRE TRUCK TRAVEL THE
LINE WITHOUT INTERRUPTION, UNDER THE GUISE OF A SHIFT IN CONTROL.  THE
SECOND IS LEASING.  THIS RELATES TO THE USE OF EXEMPT EQUIPMENT IN
AUTHORIZED OPERATIONS.  CARRIERS SUBJECT TO COMMISSION JURISDICTION
HAVE INCREASINGLY TURNED TO OWNER-OPERATOR TRUCKERS TO SATISFY THEIR
NEED FOR EQUIPMENT AS THEIR SERVICE DEMANDS.  BY A VARIETY OF
ARRANGEMENTS, THE AUTHORIZED CARRIERS HIRE THEM TO CONDUCT OPERATIONS
UNDER THE FORMER'S PERMIT OR CERTIFICATE.  SUCH OPERATORS THUS TRAVEL
APPROVED ROUTES WITH NONEXEMPT PROPERTY, AND IN THE GREAT MAJORITY OF
INSTANCES SEVER CONNECTIONS WITH THEIR LESSEE CARRIER AT THE END OF THE
TRIP.  (FN5) 

THE USE OF NONOWNED EQUIPMENT BY AUTHORIZED CARRIERS IS NOT ILLEGAL,
EITHER UNDER THE ACT OR THE RULES UNDER CONSIDERATION.  (FN6)  BUT
EVIDENCE IS OVERWHELMING THAT A NUMBER OF SATELLITE PRACTICES DIRECTLY
AFFECT THE REGULATORY SCHEME OF THE ACT, THE PUBLIC INTEREST IN
NECESSARY SERVICE AND THE ECONOMIC STABILITY OF THE INDUSTRY, AND IT IS
ON THESE THAT THE RULES FOCUS.  IT APPEARS, FOR INSTANCE, THAT WHILE
MANY ARRANGEMENTS ARE REDUCED TO WRITING, ORAL LEASES ARE COMMON; SOME
WERE CONCLUDED AFTER THE TRIPS WERE MADE AND IN SEVERAL CASES EXEMPT
OPERATORS SOLICITED BUSINESS THEMSELVES WITH BLANK AUTHORIZED CARRIER
FORMS OR OTHER EVIDENCE OF AGENCY.  IT IS STRONGLY URGED THAT THIS VERY
INFORMALITY OF THE CONTRACTUAL RELATIONSHIP BETWEEN CARRIER AND EXEMPT
OPERATOR CREATES CONDITIONS IN THE INDUSTRY INCONSISTENT WITH THOSE
WHICH THE ACT CONTEMPLATES.  PROOF WAS PROFFERED DURING THE PROCEEDINGS
THAT THE INFORMAL AND TENUOUS RELATIONSHIPS IN LEASE AND INTERCHANGE
PERMIT EVASIONS OF THE LIMITATIONS ON CERTIFICATED OR PERMITTED
AUTHORITY.  SINCE THE DRIVER OF THE EXEMPT EQUIPMENT IS NOT AN EMPLOYEE
OF THE CARRIER, SANCTIONS FOR VIOLATION OF GEOGRAPHICAL RESTRICTIONS
ARE CLEARLY DIFFICULT TO IMPOSE, ESPECIALLY IN THE CASE OF THE SINGLE
TRIP LESSOR.  INTERCHANGE MAY, AS WELL, BECOME A DEVICE TO CIRCUMVENT
GEOGRAPHICAL RESTRICTIONS IN THE CERTIFICATE.  THE PRACTICE OF
AUTHORIZED CARRIERS CONDUCTING OPERATIONS BEYOND THE TERRITORY THEY ARE
ENTITLED TO SERVE UNDER COVER OF A LEASE FROM THE LOCAL CARRIER WAS
CLEARLY SHOWN IN THE EVIDENCE BEFORE THE COMMISSION.  IT APPEARED, IN
FACT, THAT SOME OF THESE OPERATIONS ARE ENTIRELY FICTIONAL, BEING
CREATED AD HOC AFTER THE TRIP IS MADE - AND THIS AT TIMES IN THE WAKE
OF A SPECIFIC DENIAL BY THE COMMISSION OF AN APPLICATION TO SERVE THE
AREA. 

IT WAS ALSO ALLEGED, AND SHOWN BY EVIDENCE OF SOME INCIDENTS, THAT
THE COMMISSION'S SAFETY REQUIREMENTS WERE NOT OBSERVED BY EXEMPT
LESSORS.  BECAUSE OF THE FACT THAT THE GREAT BULK OF THE ARRANGEMENTS
COVER ONLY ONE TRIP, LEASING CARRIERS HAVE LITTLE OPPORTUNITY OR DESIRE
TO INSPECT THE EQUIPMENT USED, ESPECIALLY IN CASES WHERE THE AGREEMENT
IS MADE WITHOUT THE OPERATOR'S APPEARANCE AT THE CARRIER'S TERMINAL. 
ENFORCEMENT SANCTIONS BY THE CARRIERS FOR VIOLATIONS WOULD BE CLEARLY
AS DIFFICULT TO IMPOSE AS ROUTE STANDARDS.  HENCE, THE CARRIER MAY NOT
EXTEND THE SUPERVISION OF REST PERIODS, DOCTORS' CERTIFICATES, BRAKES,
LIGHTS, TIRES, STEERING EQUIPMENT AND LOADING, NORMALLY ACCORDED HIS
OWN EMPLOYEES AND VEHICLES, TO EQUIPMENT AND DRIVERS SECURED THROUGH
LEASE.  AND THE OWNER-OPERATOR HIMSELF IS CALLED UPON TO PUSH HIMSELF
AND HIS TRUCK BECAUSE OF THE ECONOMIC IMPACT OF TIME SPENT OFF THE ROAD
AND INVESTMENT IN REPAIRS ON HIS SLIM PROFIT MARGIN.  (FN7)  FURTHER,
THE ABSENCE OF WRITTEN AGREEMENTS HAS MADE THE FIXING OF THE LESSEE'S
RESPONSIBILITY FOR ACCIDENTS HIGHLY DIFFICULT. 

CONSEQUENCES ON THE ECONOMIC STABILITY OF THE INDUSTRY WERE ALSO
NOTED.  THE CARRIER ENGAGED IN LEASING PRACTICE IS AT THE MERCY OF THE
COST AND SUPPLY OF EXEMPT EQUIPMENT AVAILABLE TO HIM.  HENCE, HE MAY AT
TIMES FIND HIMSELF UNABLE TO UNDERTAKE SHIPPING OBLIGATIONS BECAUSE NO
TRUCKS ARE AVAILABLE WILLING TO MAKE A RELATIVELY UNPROFITABLE TRIP OR
TO ASSUME THE BURDENS OF LESS-THAN-CARLOAD SERVICE.  CERTIFICATION IS
GRANTED ON A SHOWING THAT A CONCERN IS FIT AND WILLING TO PROVIDE
NONDISCRIMINATORY SERVICE REQUIRED BY THE PUBLIC CONVENIENCE.  TO
SUSTAIN THIS OBLIGATION, THE AUTHORIZED INTEGRATED CARRIER WHO FINDS
HIS LEASING COMPETITOR ONLY WILLING TO UNDERTAKE THE MORE PROFITABLE
VENTURES MAY BE OBLIGED TO RELY ON MISCELLANEOUS FREIGHT WITHOUT
COMPENSATING ECONOMIC LONG CARLOAD HAULS TO SUSTAIN ESTIMATED PROFIT
MARGINS. 

USE OF EXEMPT EQUIPMENT BY AUTHORIZED CARRIERS ALSO TENDS TO OBSTRUCT
NORMAL RATE REGULATION.  SCHEDULES ARE TRADITIONALLY GROUNDED IN
COSTS.  BUT THE COST PICTURE OF A CARRIER WHO DEPENDS LARGELY ON LEASED
EQUIPMENT IS FAR DIFFERENT FROM THAT OF A CARRIER OWNING HIS OWN
TRUCKS.  NOT ONLY IS THE FORMER ABLE TO UNDERTAKE OPERATIONS WITH
RELATIVELY SLIGHT INVESTMENT.  AS WELL, HIS CURRENT OVERHEAD INVOLVED
IN OPERATING LEASED EQUIPMENT IS SOLELY ADMINISTRATIVE, THE OWNER OF
THE EXEMPT EQUIPMENT BEARING THE EXPENSE OF GAS, OIL, TIRES, WAGES AND
DEPRECIATION OUT OF HIS SHARE OF THE FEE.  AND TO REFER TO THE EXEMPT
OWNER'S OWN EXPENSES AS DETERMINATIVE OF WHAT IS A "REASONABLE" RATE
WOULD BE MANIFESTLY IMPOSSIBLE AS LONG AS THE RELATIONSHIPS BETWEEN
LESSOR AND LESSEE ARE TOO TENUOUS, SHORT-TERMED AND INFORMAL AND THE
COMPENSATION OF EACH BASED ON A DIVISION OF REVENUE. 

IT IS CLAIMED THAT THE PRACTICE IN FACT HAS HAD A DEMORALIZING EFFECT
ON THE INDUSTRY.  AUTHORIZED CARRIERS FIND IT ADVANTAGEOUS TO EXPAND
THEIR OPERATIONS BY LEASED EQUIPMENT BECAUSE OF THE FACT THAT NO
INVESTMENT IS REQUIRED, NOR IS THE RISK OF EMPTY RETURN TRIPS AND OTHER
OVERHEAD INCURRED.  HENCE, CARRIERS OWNING THEIR OWN TRUCKS FACE A
FLUID RATE STRUCTURE IN COMPETITION WITH THOSE SPECIALIZING IN USE OF
EXEMPT EQUIPMENT, ESPECIALLY WHERE SUCH EQUIPMENT IS OFFERED FOR A
TRIP, AS IT OFTEN IS, FOR EXPENSES.  THERE IS THUS A PRESSURE ON THE
CERTIFICATED OPERATOR TO ENTER THE LEASING FIELD AND HENCE EXPAND THE
EFFECT OF THESE CONDITIONS AND PRACTICES ON EFFICIENT, SAFE AND
NONDISCRIMINATORY TRUCK SERVICE WHICH THE ACT IS DESIGNED TO PROMOTE. 

II.  COMMISSION PROCEEDINGS.  - ALL BEFORE US ADMIT THE DIFFICULTIES
WHICH HAVE DEVELOPED.  IN FACT, THE COMMISSION HAS CONSIDERED THEM FOR
SOME YEARS.  AS EARLY AS 1940, FOLLOWING COMPLAINTS, THE BUREAU OF
MOTOR CARRIERS HELD HEARINGS ON THE SUBJECT WHICH CULMINATED IN A
STATISTICAL REPORT IN 1943.  THE NECESSITY OF MAXIMUM USE OF
TRANSPORTATION RESOURCES DURING THE WAR POSTPONED ANY ACTION THEREAFTER
UNTIL 1947.  (FN8)  IN THAT YEAR, HOWEVER, THE DIRECTOR OF THE BUREAU
REINSTITUTED DISCUSSION, HAD SUGGESTED REGULATIONS DRAFTED, AND DREW ON
HIS FIELD STAFF FOR REPORTS OF THE USE OF THE EXEMPT VEHICLES BY
AUTHORIZED CARRIERS.  THE PRESENT PROCEEDINGS WERE INSTITUTED BY THE
COMMISSION ON JANUARY 9, 1948, WHEN IT BECAME APPARENT THAT CARRIER
AGREEMENT REGARDING A PROPER SOLUTION WAS UNLIKELY.  ITS ORDER,
PUBLISHED AT 13 FED. REG. 369, DECLARED ALL AUTHORIZED CARRIERS
RESPONDENTS AND SET FORTH THE PRACTICES TO BE INVESTIGATED, FOUR
POSSIBLE SCHEMES OF REGULATION, AND SUGGESTED RULES.  A QUALIFIED
EXAMINER THEREAFTER HEARD SOME 80 WITNESSES IN WASHINGTON AND ST.
LOUIS, AND ISSUED A REPORT AND PROPOSED RULES.  A FULL REPORT BY THE
COMMISSION'S DIVISION 5 FOLLOWED ON JUNE 26, 1950, CONFIRMING THE
EXAMINER'S FINDINGS AND AMENDING HIS PROPOSALS, (FN9) AND, FOLLOWING
PETITIONS FOR RECONSIDERATION, THE ENTIRE COMMISSION REOPENED
PROCEEDINGS FOR ORAL ARGUMENT.  THE COMMISSION'S REPORT, DATED MAY 8,
1951, IN EFFECT ADOPTED THE EXAMINER'S PROPOSED RULES, AFTER AFFIRMING
AND REITERATING THE NATURE AND EFFECT OF LEASING AND INTERCHANGE
PRACTICES ON THE INDUSTRY AND REGULATION UNDER THE ACT. 

III.  THE RULES.  - IN THIS FINAL FORM, THE RULES ESTABLISH AS
CONDITIONS TO THE USE OF NONOWNED EQUIPMENT BY AUTHORIZED CARRIERS THE
REDUCTION OF THE CONTRACTS TO WRITING.  RULE SEC. 207.4(A)(2), 52
M.C.C. 744.  IT IS REQUIRED THAT SUCH CONTRACTS VEST EXCLUSIVE
POSSESSION OF, AND RESPONSIBILITY FOR, THE EQUIPMENT IN THE AUTHORIZED
CARRIER DURING THE RENTAL, RULE SEC. 207.4(A)(4), THE LIFE OF WHICH
MUST EXCEED THIRTY DAYS WHEN THE DRIVER IS THE OWNER OR HIS EMPLOYEE. 
RULE SEC. 207.4(A)(3).  FINALLY, THE CONTRACT MUST FIX THE COMPENSATION
OF THE LESSOR, WHICH MAY NOT BE MEASURED BY A PERCENTAGE OF THE GROSS
REVENUE.  RULE SEC. 207.4(A)(5).  INTERCHANGE AGREEMENTS BETWEEN TWO
AUTHORIZED CARRIERS MUST ALSO BE IN WRITING AND THE EQUIPMENT MUST BE
DRIVEN BY AN EMPLOYEE OF THE CERTIFICATED CARRIER OVER WHOSE AUTHORIZED
ROUTE IT TRAVELS.  RULE SEC. 207.5(A), (C).    THE RULES ALSO REQUIRE
INSPECTION OF NONOWNED EQUIPMENT WHEN THE LESSEE CARRIER TAKES
POSSESSION, RULE SEC. 207.4(C), AS WELL AS THE INDENTIFICATION OF THE
TRUCKS AS WITHIN ITS RESPONSIBILITY, RULE SEC. 207.4(D), AND THE
TESTING OF THE DRIVER'S FAMILIARITY WITH MOTOR CARRIER SAFETY
REGULATIONS.  RULE SEC. 207.4(E).  RECORDS OF THE USE OF RENTED AND
INTERCHANGED EQUIPMENT ARE MANDATORY.  RULE SEC. 207.4(F). 

IV.  COMMISSION AUTHORITY.  - APPELLANTS FOCUS THEIR PRINCIPAL ATTACK
ON THE LEASE PROVISIONS REQUIRING A THIRTY-DAY PERIOD OF CARRIER
CONTROL AND A MEASURE OF COMPENSATION OTHER THAN REVENUE SPLITTING. 
ALL AGREE THAT THE RULES THUS ABOLISH TRIP-LEASING.  UNFORTUNATE
CONSEQUENCES ARE PREDICTED FOR THE PUBLIC INTEREST BECAUSE THE EXEMPT
OWNER-OPERATOR WILL NO LONGER BE ABLE TO HIRE HIMSELF OUT AT WILL - IN
SUM, THAT THE INDUSTRY'S ABILITY TO SERVE A FLUCTUATING DEMAND WILL
SUFFER AND TRANSPORTATION COSTS ACCORDINGLY GO UP.  IT IS THE
COMMISSION'S POSITION THAT THE INDUSTRY AND THE PUBLIC WILL BENEFIT
DIRECTLY BECAUSE OF THE STABILIZATION OF CONDITIONS OF COMPETITION AND
RATE SCHEDULES, AND THAT IN FACT THE CONTINUED EFFECTIVENESS OF THE
COMMISSION'S FUNCTIONS UNDER THE MOTOR CARRIER ACT IS DEPENDENT ON
REGULATION OF LEASING AND INTERCHANGE.  NEEDLESS TO SAY, WE ARE ILL
EQUIPPED TO WEIGH SUCH PREDICTIONS OF THE ECONOMIC FUTURE.  NOR IS IT
OUR FUNCTION TO ACT AS A SUPER-COMMISSION.  SO WE TURN TO THE LEGAL
CONSIDERATIONS SO STRONGLY URGED ON US. 

HERE, APPELLANTS HAVE FRAMED THEIR POSITION AS A BROADSIDE ATTACK ON
THE COMMISSION'S ASSERTED POWER.  ALL URGE UPON US THE FACT THAT
NOWHERE IN THE ACT IS THERE AN EXPRESS DELEGATION OF POWER TO CONTROL,
REGULATE OR AFFECT LEASING PRACTICES, (FN10) AND IT IS FURTHER INSISTED
THAT IN EACH SEPARATE PROVISION OF THE ACT GRANTING REGULATORY
AUTHORITY THERE IS NO DIRECT IMPLICATION OF SUCH POWER.  OUR FUNCTION,
HOWEVER, DOES NOT STOP WITH A SECTION-BY-SECTION SEARCH FOR THE PHRASE
"REGULATION OF LEASING PRACTICES" AMONG THE LITERAL WORDS OF THE
STATUTORY PROVISIONS.  AS A MATTER OF PRINCIPLE, WE MIGHT AGREE WITH
APPELLANTS' CONTENTIONS IF WE THOUGHT IT A REASONABLE CANON OF
INTERPRETATION THAT THE DRAFTSMEN OF ACTS DELEGATING AGENCY POWERS, AS
A PRACTICAL AND REALISTIC MATTER, CAN OR DO INCLUDE SPECIFIC
CONSIDERATION OF EVERY EVIL SOUGHT TO BE CORRECTED.  BUT NO GREAT
ACQUAINTANCE WITH PRACTICAL AFFAIRS IS REQUIRED TO KNOW THAT SUCH
PRESCIENCE, EITHER IN FACT OR IN THE MINDS OF CONGRESS, DOES NOT
EXIST.  NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 219
220; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 193-194.  ITS
VERY ABSENCE, MOREOVER, IS PRECISELY ONE OF THE REASONS WHY REGULATORY
AGENCIES SUCH AS THE COMMISSION ARE CREATED, FOR IT IS THE FOND HOPE OF
THEIR AUTHORS THAT THEY BRING TO THEIR WORK THE EXPERT'S FAMILIARITY
WITH INDUSTRY CONDITIONS WHICH MEMBERS OF THE DELEGATING LEGISLATURES
CANNOT BE EXPECTED TO POSSESS.  UNITED STATES V. PENNSYLVANIA R. CO.,
323 U.S. 612. 

MOREOVER, WE MUST REJECT AT THE OUTSET ANY CONCLUSION THAT THE RULES
AS A WHOLE REPRESENT AN ATTEMPT BY THE COMMISSION TO EXPAND ITS POWER
ARBITRARILY; THERE IS CLEAR AND ADEQUATE EVIDENCE OF EVILS ATTENDANT ON
TRIP-LEASING.  THE PURPOSE OF THE RULES IS TO PROTECT THE INDUSTRY FROM
PRACTICES DETRIMENTAL TO THE MAINTENANCE OF SOUND TRANSPORTATION
SERVICES CONSISTENT WITH THE REGULATORY SYSTEM.  SECTIONS 216(B) AND
218(A) OF THE ACT, FOR INSTANCE, REQUIRE THE FILING OF A JUST AND
REASONABLE RATE SCHEDULE BY EACH COMMON CARRIER, AND THE VIOLATION OF
THESE RATES AND THE DEMORALIZATION OF RATE STRUCTURES GENERALLY ARE A
PROBABLE CONCOMITANT OF CURRENT LEASING PRACTICES.   SECTION 204(A)(2)
REQUIRES THE COMMISSION TO IMPOSE RULES RELATING TO SAFETY OF OPERATION
FOR VEHICLES AND DRIVERS.  THESE ARE LIKEWISE THREATENED BY THE
UNRESTRICTED USE OF NONOWNED EQUIPMENT BY THE COMMON CARRIERS.  AND THE
REQUIREMENTS OF CONTINUOUS SERVICE IN SEC.  204(A)(1), OF OBSERVANCE OF
AUTHORIZED ROUTES AND TERMINI UNDER SECS. 208(A) AND 209(B), AND THE
PROHIBITIONS OF REBATES, SECS. 216(D), 217(B), 218(A) AND 222(C), ALSO
MAY BE IGNORED THROUGH THE VERY PRACTICES HERE PROSCRIBED. 

SO THE RULES IN QUESTION ARE AIMED AT CONDITIONS WHICH MAY DIRECTLY
FRUSTRATE THE SUCCESS OF THE REGULATION UNDERTAKEN BY CONGRESS. 
INCLUDED IN THE ACT AS A DUTY OF THE COMMISSION IS THAT "TO ADMINISTER,
EXECUTE, AND ENFORCE ALL PROVISIONS OF THIS PART, TO MAKE ALL NECESSARY
ORDERS IN CONNECTION THEREWITH, AND TO PRESCRIBE RULES, REGULATIONS,
AND PROCEDURE FOR SUCH ADMINISTRATION."  SEC. 204(A)(6).  AND THIS
NECESSARY RULE-MAKING POWER, COTERMINOUS WITH THE SCOPE OF AGENCY
REGULATION ITSELF, MUST EXTEND TO THE "TRANSPORTATION OF PASSENGERS OR
PROPERTY BY MOTOR CARRIERS ENGAGED IN INTERSTATE OR FOREIGN COMMERCE
AND TO THE PROCUREMENT OF AND THE PROVISION OF FACILITIES FOR SUCH
TRANSPORTATION," REGULATION OF WHICH IS VESTED IN THE COMMISSION BY
SEC. 202(A).  SEE ALSO SEC. 203(A)(19). 

WE CANNOT AGREE WITH APPELLANTS' CONTENTION THAT THE RULE-MAKING
AUTHORITY OF SEC.  204(A)(6) MERELY CONCERNS AGENCY PROCEDURES AND IS
SOLELY ADMINISTRATIVE.  IT IGNORES THE DISTINCT REFERENCE IN THE
MAKE RULES APPLICABLE TO TRANSFERS OF CERTIFICATES OR PERMITS IS
RECOGNIZED BY SEC. 212(B).  THAT SECTION PERMITS TRANSFERS "PURSUANT TO
SUCH RULES AND REGULATIONS AS THE COMMISSION MAY PRESCRIBE."  IT DOES
NOT STRAIN LOGIC OR EXPERIENCE TO LOOK UPON LEASING OF EXEMPT EQUIPMENT
AND INTERCHANGE AS A TRANSFER, TEMPORARY IN NATURE, OF THE CARRIER'S
AUTHORIZED RIGHT TO SERVE HIS SPECIFIED AREA; IN FACT WE THINK THIS
INTERPRETATION IS DRAMATICALLY SUPPORTED HERE BY THE EVIDENCE THAT
OWNER-OPERATORS THEMSELVES TAKE THE INITIATIVE IN SECURING CARGOES,
WHILE THE CARRIERS ACCEPT ONLY THE ADMINISTRATIVE FUNCTION OF APPROVING
THE USE OF THE NONOWNED EQUIPMENT OVER THEIR AUTHORIZED ROUTES AND
UNDER THEIR NAMES.  IT IS AN UNNATURAL CONSTRUCTION OF THE ACT WHICH
WOULD REQUIRE THE COMMISSION TO SIT IDLY BY AND WINK AT PRACTICES THAT
LEAD TO VIOLATIONS OF ITS PROVISIONS. 

WE HOLD THEN THAT THE PROMULGATION OF THESE RULES FOR AUTHORIZED
CARRIERS FALLS WITHIN THE COMMISSION'S POWER, DESPITE THE ABSENCE OF
SPECIFIC REFERENCE TO LEASING PRACTICES IN THE ACT.  SEE GENERAL TANK
CAR CORP. V. TERMINAL CO., 308 U.S. 422, 432.  THE GRANT OF GENERAL
RULE-MAKING POWER NECESSARY FOR ENFORCEMENT COMPELS THIS RESULT.  IT IS
FORESHADOWED, OF COURSE, BY UNITED STATES V. PENNSYLVANIA R. CO., 323
U.S. 612.  THAT CASE VALIDATED AN ORDER REQUIRING RAILROADS TO LEASE
CARS TO A COMPETING CARRIER BY SEA, IN SPITE OF THE INABILITY OF THE
COMMISSION TO GROUND ITS ACTION ON SOME SPECIFIC PROVISION OF THE ACT. 
323 U.S., AT 616.  THIS COURT POINTED TO THE FACT THAT THE
"UNQUESTIONED POWER OF THE COMMISSION TO REQUIRE ESTABLISHMENT OF
THROUGH ROUTES WOULD BE WHOLLY FRUITLESS, WITHOUT THE CORRELATIVE POWER
TO ABROGATE THE ASSOCIATION'S RULE WHICH PROHIBITS THE INTERCHANGE." 
323 U.S., AT 619.  THERE IS EVIDENCE HERE THAT CONVINCES US THAT THAT
REGULATION OF LEASING PRACTICES IS LIKEWISE A NECESSARY POWER; IN FACT,
WE THINK ITS EXERCISE MORE CRUCIAL THAN IN UNITED STATES V.
PENNSYLVANIA R. CO. THE ENFORCEMENT OF ONLY ONE PHASE OF THE ACT WAS
THERE ENDANGERED; HERE, PRACTICALLY THE ENTIRE REGULATORY SCHEME IS
AFFECTED BY TRIP-LEASING. 

A FAIR ANALOGY APPEARS BETWEEN THE CONDITIONS WHICH BROUGHT ABOUT THE
MOTOR CARRIER ACT AND THOSE SOUGHT TO BE CORRECTED BY THE PRESENT
RULES, CONFIRMING OUR VIEW OF THE COMMISSION'S JURISDICTION.  THEN THE
INDUSTRY WAS UNSTABLE ECONOMICALLY, DOMINATED BY EASE OF COMPETITIVE
ENTRY AND A FLUID RATE PICTURE.  AND AS A RESULT, IT BECAME OVERCROWDED
WITH SMALL ECONOMIC UNITS WHICH PROVED UNABLE TO SATISFY EVEN THE MOST
MINIMAL STANDARDS OF SAFETY OR FINANCIAL RESPONSIBILITY.  (FN11)  SO
CONGRESS FELT COMPELLED TO REQUIRE AUTHORIZATION FOR ALL INTERSTATE
OPERATIONS TO PRESERVE THE MOTOR TRANSPORTATION SYSTEM FROM OVER
COMPETITION, WHILE AT THE SAME TIME PROTECTING EXISTING ROUTES THROUGH
THE "GRANDFATHER" CLAUSE.  (FN12)  THE COMMISSION'S RULE-MAKING HERE
CONSIDERED IS BASED ON CONDITIONS THAT SIMILARLY THREATEN, THOUGH
PERHAPS TO A LESSER DEGREE, THE EFFICIENT OPERATION OF THE INDUSTRY
TODAY. 

AND AS EXERCISED, THE POWER UNDER SEC. 204(A)(6) IS GEARED TO AND
BOUNDED BY THE LIMITS OF THE REGULATORY SYSTEM OF THE ACT WHICH IT
SUPPLEMENTS.  IT IS THUS AS CLEARLY DEFINED FOR CONSTITUTIONAL PURPOSES
AS THE SPECIFIED FUNCTIONS OF THE COMMISSION, AND SO RELIANCE ON
SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495, 529, AND PANAMA
REFINING CO. V. RYAN, 293 U.S. 388, 421, IS MISPLACED.  WE REJECT FOR
SIMILAR REASONS THE CONTENTION THAT FEDERAL POWER COMMISSION V.
PANHANDLE EASTERN PIPE LINE CO., 337 U.S. 498, IS CONTROLLING HERE. 
OUR HOLDING THAT THE FEDERAL POWER COMMISSION'S AUTHORITY DID NOT
EXTEND TO PRODUCTION AND GATHERING OF NATURAL GAS WAS SPECIFICALLY
GROUNDED IN A PROVISION OF THE NATURAL GAS ACT TO THAT EFFECT.  337
U.S., AT 504-505. 

V. THE NATIONAL TRANSPORTATION POLICY.  - WHAT WE HAVE SAID ABOVE
ANSWERS APPELLANTS' COMPANION CONTENTION THAT THE RULES ARE INVALID
BECAUSE THEY VIOLATE THE NATIONAL TRANSPORTATION POLICY AS SET OUT IN
49 U.S.C., PRECEDING SEC. 1.  REGULATION UNDER THE ACT IS THERE
DECLARED TO BE IN THE INTERESTS OF THE PRESERVATION OF THE INHERENT
ADVANTAGES OF ALL MODES OF TRANSPORTATION, AND OF AN ECONOMICALLY
SOUND, SAFE, AND EFFICIENT INDUSTRY.  SEE UNITED STATES V. ROCK ISLAND
MOTOR TRANSIT CO., 340 U.S. 419, AND UNITED STATES V. TEXAS & PACIFIC
MOTOR TRANSPORT CO., 340 U.S. 450.  BUT NO OVERLY-NICE DISTINCTION
BETWEEN LAW AND POLICY IS NEEDED TO SUPPORT THE VIEW THAT THE QUESTION
IS HARDLY ONE FOR THE COURTS; IT IS CLEAR THAT THE RULES REPRESENT, AT
BEST, A COMPROMISE BETWEEN STABILITY AND FLEXIBILITY OF INDUSTRY
CONDITIONS, EACH ALLEGED TO BE IN THE NATIONAL INTEREST, AND WE CAN
ONLY LOOK TO SEE IF THE COMMISSION HAS APPLIED ITS FAMILIARITY WITH
TRANSPORTATION PROBLEMS TO THESE CONFLICTING CONSIDERATIONS.  THE MERE
FACT THAT A CONTRARY POSITION WAS TAKEN DURING THE WAR YEARS WHEN
ACTIVE INTERCHANGE AND LEASING WERE REQUIRED, (FN13) THAT THE
COMMISSION HAS NEVER BEFORE RESTRICTED TRIP-LEASING AND HAS IN FACT
APPROVED IT FROM TIME TO TIME, (FN14) DOES NOT CHANGE OUR FUNCTION. 

VI.  REASONABLENESS OF RULES AND EXEMPTIONS THEREFORM.  - THE
RELATIONSHIP OF THESE RULES TO THE REGULATORY SCHEME THEY ARE DESIGNED
TO PROTECT FORMS A BASIS FOR THE ANSWER TO THE VARIOUS ALLEGATIONS THAT
CERTAIN RULES ARE ARBITRARY.  FOR OUR PURPOSES, SUCH AN ARGUMENT MUST
MEAN THAT THE COMMISSION HAD NO REASONABLE GROUND FOR THE EXERCISE OF
JUDGMENT.  IN THE INSTANT CASE, SUCH IS NOT THE SITUATION; THE EVIDENCE
MARSHALLED BEFORE THE COMMISSION PLAINLY SUPPORTS THE CONCLUSION THAT
THE CONTINUED EFFECTIVENESS OF ITS REGULATION REQUIRES THE RULES
PRESCRIBED. 

WE ALSO AFFIRM A REASONABLE RELATIONSHIP BETWEEN THE AIMS OF THE
FEDERAL REGULATORY SCHEME AND THE EXEMPTIONS IN THE RULES.  THAT AS TO
INTERCHANGE BETWEEN CARRIERS OVER ROUTES WHICH BOTH ARE AUTHORIZED TO
SERVE, RULE SEC. 207.3(A), IS FOUNDED ON THE PROPOSITION THAT
UNAUTHORIZED CERTIFICATE EXTENSIONS ARE HERE IMPOSSIBLE.  THE EXEMPTION
EXTENDED TO TRUCKING EQUIPMENT USED IN RAILWAY EXPRESS OPERATIONS, RULE
SEC. 207.3(B), WHICH ARE LARGELY CONFINED TO MUNICIPALITIES AND
CONTIGUOUS AREAS, AND SHORT TRIPS, DUPLICATES THE SIMILAR EXEMPTION
APPLICABLE TO CONTRACT AND COMMON CARRIERS IN RULE SEC. 207.3(C).  IT
IS ALLEGED THAT THE EXCLUSION OF THE SUBSTITUTED MOTOR-FOR-RAIL
TRANSPORT EQUIPMENT FROM THE RULES' COVERAGE BY RULE SEC. 207.3(B) ALSO
IS BASED ON THE FACT THAT THE EVILS OF UNAUTHORIZED SERVICE, LAX
OBSERVATION OF SAFETY REGULATIONS, AND DEMORALIZED COMPETITIVE
CONDITIONS ARE NOT PRESENT IN SUCH OPERATIONS.  AS THE COMMISSION
FOUND, THE LEASING PRACTICES IN THE FIELD ARE UNDERTAKEN THROUGH LONG
TERM CONTRACTS WITH CERTAIN ESTABLISHED LESSORS, AND THE EQUIPMENT
INSPECTED AND CONTROLLED BY THE RAILROADS, AND IDENTIFIED WITH ITS
NAME.  IN SUCH A CONTEXT, THE EXEMPTION IS NOT UNREASONABLE; CERTAINLY
IT IS NOT REQUIRED THAT THE COMMISSION EXTEND ITS SUPERVISORY
ACTIVITIES UNDER THE RULES INTO FIELDS WHERE THE EVIDENCE BEFORE IT
INDICATES NO NEED, MERELY TO SATISFY SOME STANDARD OF PAPER EQUALITY. 
AND THIS IS ESPECIALLY SO IN THE FIELD OF SUBSTITUTED MOTOR-FOR-RAIL
CARRIAGE WHICH FALLS WITHIN THE COMMISSION'S STRICT REGULATION BY
VIRTUE OF THE RESTRICTIONS WHICH WE APPROVED IN UNITED STATES V. ROCK
ISLAND MOTOR TRANSIT CO., 340 U.S. 419, AND UNITED STATES V. TEXAS &
PACIFIC MOTOR TRANSPORT CO., 340 U.S. 450.  THE EXEMPTION FOR PLANS OF
OPERATIONS MERGED UNDER SEC. 5 OF THE ACT, RULE SEC. 207.3(D), IS SAID
TO HAVE BEEN DIRECTED SOLELY TOWARD ALLIED VAN LINES, WHOSE SEC. 5
PROCEEDING, REPORTED EVANSTON FIREPROOF WAREHOUSE - CONTROL - ALLIED
VAN LINES, 40 M.C.C. 557, INVOLVING A UNIQUE LEASING ARRANGEMENT BY
STOCKHOLDING HAULING AGENTS UNDER THE COMPANY'S NAME, HAS ALREADY BEEN
SCRUTINIZED BY THE COMMISSION.  SINCE ALLIED OPERATES ENTIRELY WITH
EQUIPMENT SUPPLIED UNDER THIS ARRANGEMENT, AND SINCE THE COMMISSION HAS
SPECIFICALLY APPROVED IT, IT SEEMS TO US THAT THE EXEMPTION HAS A
REASONABLE BASIS; THE GUARANTEES OF INSURANCE COVERAGE, FINANCIAL
RESPONSIBILITY, LESSEE ROUTE CONTROL AND EQUIPMENT IDENTIFICATION IN
ALLIED'S OPERATIONS, 40 M.C.C. 551, 563-566, PROMISE PROTECTION AGAINST
THE EVILS THE RULES SEEK TO CORRECT. 

VII.  PRESERVATION OF THE RIGHT TO AUGMENT EQUIPMENT.  - APPELLANTS
FURTHER CONTEND, HOWEVER, THAT THE RULES IN EFFECT WILL VIOLATE THE
PROTECTIONS IN SECS. 208(A) AND 209(B) OF THE ACT OF THE CARRIERS'
RIGHT TO AUGMENT THEIR EQUIPMENT.  (FN15)  WE DO NOT AGREE.  THE
PROVISOS IN QUESTION ARE NOT TO BE READ AS BLANKET RESTRICTIONS ON THE
COMMISSION'S REGULATORY POWERS; THEY ARE AIMED AT THE RESTRICTIONS ON
THE INCREASE IN VOLUME OF TRAFFIC THROUGH ACQUISITION OF ADDITIONAL
VEHICLES.  CLEARLY, A NUMERICAL LIMITATION WOULD BE INVALID, BUT THE
COMMISSION'S REFUSAL TO PERMIT CARRIERS TO SECURE AND USE EQUIPMENT
WHICH DOES NOT SATISFY ITS SAFETY, LOADING, AND LICENSING RULES WOULD
NOT.  AS WE POINTED OUT IN CRESCENT EXPRESS LINES, INC. V. UNITED
STATES, 320 U.S. 401, 408, IN SUSTAINING CERTIFICATE LIMITED TO SEVEN
PASSENGER VEHICLES, SINCE SEC. 208 "REQUIRES THE COMMISSION TO SPECIFY
THE SERVICE TO BE RENDERED, THIS COULD NOT BE DONE WITHOUT POWER ALSO
TO SPECIFY THE GENERAL TYPE OF VEHICLE TO BE USED."  WE THINK IT
EQUALLY APPARENT THAT REGULATION OF THE CONDITIONS AND CIRCUMSTANCES OF
THE USE OF NONOWNED VEHICLES IS NOT A "LIMITATION ON THE ADDITION OF
MORE VEHICLES OF THE AUTHORIZED TYPE."  320 U.S., AT 409. 

VIII.  PRESERVATION OF AGRICULTURAL EXEMPTION.  - AS INDICATED ABOVE,
THE ACT ALSO EXEMPTS FROM COMMISSION JURISDICTION "MOTOR VEHICLES USED
IN CARRYING PROPERTY CONSISTING OF ORDINARY LIVESTOCK, FISH (INCLUDING
SHELL FISH), OR AGRICULTURAL COMMODITIES (NOT INCLUDING MANUFACTURED
PRODUCTS THEREOF), IF SUCH MOTOR VEHICLES ARE NOT USED IN CARRYING ANY
OTHER PROPERTY, OR PASSENGERS, FOR COMPENSATION," SEC. 203(B)(6),
(FN16) AND APPELLANTS, AND PARTICULARLY THE INTERVENING SECRETARY OF
AGRICULTURE, URGE THAT THE RULES WILL DRASTICALLY REDUCE THE
SIGNIFICANCE OF THIS SECTION IN VIOLATION OF CONGRESS' INTENT.  ALL
ADMIT, OF COURSE, THAT THE RULES DO NOT DIRECTLY APPLY TO AGRICULTURAL
EQUIPMENT; IT IS MERELY REQUIRED THAT AUTHORIZED CARRIERS USING SUCH
TRUCKS COMPLY WITH CERTAIN PROVISIONS.  BUT IT IS CONTENDED THAT THE
PRECONDITIONS TO SUCH USE IMPOSED ON THOSE WITHIN COMMISSION
JURISDICTION WILL WIPE OUT MUCH OF THE TRAFFIC WHICH THE AGRICULTURAL
CARRIERS HAVE HERETOFORE ENGAGED IN.  IT APPEARS, FOR INSTANCE, THAT A
SUBSTANTIAL LEASING IS BUILT ON AGRICULTURAL HAULERS WHO WOULD
OTHERWISE RETURN EMPTY TO THEIR PLACE OF DEPARTURE, HAVING UNLOADED THE
FARM PRODUCE CARRIED; THE AUTHORIZED CARRIERS HAVE FOUND THEM PREPARED
TO ACCEPT A ONE-TRIP ENGAGEMENT FOR THE RETURN ROUTE.  THE THIRTY-DAY
LEASE PROVISION WILL MAKE SUCH ARRANGEMENTS IMPOSSIBLE. 

WE ARE UNABLE, HOWEVER, TO CONCLUDE THAT THE ECONOMIC DANGER TO THE
AGRICULTURAL TRUCKERS FROM THESE RULES CONSTITUTES A VIOLATION OF SEC.
203(B)(6).  THE MERE FACT THAT COMMERCIAL CARRIERS OF AGRICULTURAL
PRODUCTS WILL HEREAFTER BE REQUIRED TO ESTABLISH THEIR CHARGES ON THE
BASIS OF AN EMPTY RETURN TRIP IS NOT THE SAME AS BRINGING THEM WITHIN
COMMISSION JURISDICTION GENERALLY.  THE EXEMPTION EXTENDS, BY ITS OWN
WORDS, TO CARRIAGE OF AGRICULTURAL PRODUCTS, AND NOT TO OPERATIONS
WHERE THE EQUIPMENT IS USED TO CARRY OTHER PROPERTY.  NEEDLESS TO SAY,
THE STATUTE IS NOT DESIGNED TO ALLOW FARM TRUCKERS TO COMPETE WITH
AUTHORIZED AND CERTIFICATED MOTOR CARRIERS IN THE CARRIAGE OF NON
AGRICULTURAL PRODUCTS OR MANUFACTURED PRODUCTS FOR OFF-THE-FARM USE,
MERELY BECAUSE THEY HAVE EXEMPTION WHEN CARRYING ONLY AGRICULTURAL
PRODUCTS.  WE CAN THEREFORE FIND NOTHING IN IT WHICH IMPLIES PROTECTION
OF AGRICULTURAL TRUCKERS' RIGHT TO HAUL OTHER PROPERTY, EVEN THOUGH
FROM AN ECONOMIC STANDPOINT THAT RIGHT IS IMPORTANT TO PROTECT PROFIT
MARGINS.  REGULATED TRUCKERS MUST ALSO RECEIVE PROTECTION UPON THEIR
RESTRICTED ROUTES AND LIMITED CARRIAGE.  A BALANCE BETWEEN THESE
COMPETING FACTORS, CARRIED OUT IN ACCORDANCE WITH CONGRESSIONAL
PURPOSE, (FN17) DOES NOT SEEM TO US UNREASONABLE OR INVALID. 

IX.  AGENCY PROCEDURE.  - WE NEED NOT PAUSE LONG OVER CERTAIN
PROCEDURAL OBJECTIONS WHICH APPELLANTS HAVE INTERPOSED.  THEY OBJECT
THAT THE RULES WERE THE PRODUCT OF PROCEEDINGS FATALLY AT VARIANCE WITH
CERTAIN REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT.  APPELLANTS
IN NO. 35 POINT TO THE REQUIREMENT OF SEC. 7(C), THAT "THE PROPONENT OF
A RULE OR ORDER SHALL HAVE THE BURDEN OF PROOF," AND INSIST THAT THE
COMMISSION, OR ITS MOTOR CARRIERS BUREAU WHICH DREW UP SUGGESTED RULES
PUBLISHED AS A SUPPLEMENT TO THE HEARING ORDER, 13 FED. REG. 369, DID
NOT SATISFY THIS BURDEN BY PREPONDERATING EVIDENCE.  BUT EVEN ASSUMING
THAT THE COMMISSION WAS A STATUTORY "PROPONENT" OF THE REGULATION AND
THAT IT DID NOT ACTIVELY INTRODUCE THE REQUISITE DEGREE OF PROOF IN
SUPPORT OF ITS POSITION, WE THINK IT PLAIN THAT THE REQUIREMENT IS
INAPPLICABLE TO THE INSTANT PROCEEDINGS.  FOR SEC. 7 OF THE
ADMINISTRATIVE PROCEDURE ACT IS LIMITED BY ITS OWN TERMS TO "HEARINGS
WHICH SECTION 4 OR 5 REQUIRES TO BE CONDUCTED PURSUANT TO THIS
7 ONLY WHEN SPECIFIED BY STATUTE: "WHERE RULES ARE REQUIRED BY STATUTE
TO BE MADE ON THE RECORD AFTER OPPORTUNITY FOR AN AGENCY HEARING, THE
REQUIREMENTS OF SECTIONS 7 AND 8 SHALL APPLY IN PLACE OF THE PROVISIONS
OF THIS SUBSECTION."  (FN18)  IN SHORT, SEC. 7 APPLIES ONLY WHEN
HEARINGS WERE REQUIRED BY THE STATUTE UNDER WHICH THEY WERE CONDUCTED
TO BE MADE ON THE RECORD AND WITH OPPORTUNITY FOR ORAL HEARING.  AS WE
HAVE POINTED OUT, THE RULE-MAKING AUTHORITY IN THE INSTANT CASE STEMS
FROM SEC. 204(A)(6) OF THE MOTOR CARRIER ACT; NOTHING THERE REQUIRES
RECORD OR HEARING, IN DIRECT CONTRAST WITH THE RATE-MAKING PROCEDURE
PROVISIONS OF SECS. 216(E) AND 218(B).  HENCE, WHATEVER OUR VIEW OF THE
SUBSTANTIALITY OF THE EVIDENCE, WE DO NOT THINK THAT THE RULES MUST
FALL BECAUSE THE COMMISSION FAILED TO ASSUME AND SATISFY A "BURDEN OF
PROOF." 

SIMILAR REASONING SUPPORTS OUR CONCLUSION THAT SEC. 8(B) OF THE
ADMINISTRATIVE PROCEDURE ACT, WHICH REQUIRES THAT DECISIONS SHALL
"INCLUDE A STATEMENT OF (1) FINDINGS AND CONCLUSIONS," INVOKED BY
APPELLANTS IN NO. 26, IS LIKEWISE INAPPLICABLE.  FOR IT, IN TURN, IS
LIMITED TO A "HEARING  ... REQUIRED TO BE CONDUCTED IN CONFORMITY WITH

X. RIGHT TO INTRODUCE EVIDENCE OF CONFISCATION.  - FINALLY,
APPELLANTS ASSIGN AS ERROR THE REFUSAL OF THE DISTRICT COURT IN NO. 35
TO PERMIT INTRODUCTION OF ADDITIONAL ORAL EVIDENCE THERE.  THEIR OFFER
OF PROOF INDICATED THAT IT WOULD CONCERN THE "VALUE OF PLAINTIFFS'
PROPERTY AND RIGHTS" AND "THE EFFECT OF THE ORDER ON SAID PROPERTY AND
RIGHTS."  THIS COURT HAS INDICATED MANY TIMES, IT IS TRUE, THAT THOSE
CONCERNED WITH AN ORDER AFFECTING THEIR JUST COMPENSATION FOR
TRANSPORTATION SERVICES MUST BE HEARD; INDEED, THEIR RIGHT TO INTRODUCE
EVIDENCE TO SUPPORT THE CLAIM THAT THE ORDER IN QUESTION WILL
UNCONSTITUTIONALLY CONFISCATE THEIR PROPERTY MAY BE ENFORCED EVEN IN
THE DISTRICT COURT, IF THE COMMISSION BARS AN OPPORTUNITY TO DO SO.
MANUFACTURERS R. CO. V. UNITED STATES, 246 U.S. 457, 488-490; ST.
JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 53-54; BALTIMORE
& OHIO R. CO. V. UNITED STATES, 298 U.S. 349, 362-369; NEW YORK V.
UNITED STATES, 331 U.S. 284, 334-335. 

BUT THE RIGHT IS NOT TO BE CONSTRUED AS AN AVENUE TOWARD DELAY.  THE
CLAIM OF CONFISCATION MUST BE SUBSTANTIAL, THE IMPORT OF THE PROFFERED
EVIDENCE CLEAR, AND THE INABILITY TO TEST THE QUESTION BEFORE THE
COMMISSION PATENT, IN ORDER TO JUSTIFY AN ORAL HEARING ON THE QUESTION
IN THE COURTS.  IN THE CASE AT BAR, APPELLANTS SEEK IN SUBSTANCE TO
SHOW THAT THE OUTLAWING OF TRIP-LEASING WILL AFFECT THEIR BUSINESS;
PERHAPS THEY MIGHT EVEN BE ABLE TO PROVE THAT SOME CONCERNS WOULD FAIL
IF THEY WERE UNABLE IN THE FUTURE TO RESORT TO NONOWNED EQUIPMENT FOR
SHORT PERIODS.  IN THIS CONTEXT, HOWEVER, WE DO NOT THINK THAT A RIGHT
TO TRIAL DE NOVO IS AUTOMATICALLY ESTABLISHED MERELY BECAUSE THE
COMMISSION DENIED A PETITION FOR REHEARING WHICH INVOKED CONSTITUTIONAL
PRINCIPLES.  IN THE FIRST PLACE, THERE WAS IN TRUTH A MULTITUDE OF
EVIDENCE BEFORE THE COMMISSION ON THE IMPORTANCE OF TRIP-LEASING TO
SOME CONCERNS.  MOREOVER, WE ARE CLEAR THAT APPELLANTS HAD AN
OPPORTUNITY TO INTRODUCE THIS VERY EVIDENCE IN THE AGENCY PROCEEDINGS,
FOR IT REQUIRED NO GREAT PRESCIENCE, IN VIEW OF THE NOTICE OF THE
HEARINGS PUBLISHED BY THE COMMISSION, TO KNOW THAT THEY WOULD CONCERN
THE IMPORTANCE AND DESIRABILITY OF THE VERY PRACTICES APPELLANTS SEEK
TO PROTECT. 

"CONFISCATORY" IS NOT A MAGIC WORD.  WHETHER IT SHOULD OPEN THE DOOR
TO FURTHER PROCEEDINGS DEPENDS ON THE NATURE OF THE ORDER ATTACKED.  WE
THINK A CLAIM OF RATE CONFISCATION, WHICH WAS THE CONCERN OF THE CASES
JUST CITED, STANDS ON A FUNDAMENTALLY DIFFERENT FOOTING FROM THAT MADE
IN THE INSTANT CASE.  (FN19)  RATE-MAKING REPRESENTS AN ORDER AFFECTING
THE VOLUME OF INCOME; IT IS SAID TO CONFISCATE PROPERTY WHEN IT
PROHIBITS A REASONABLE RETURN ON INVESTMENT BEYOND OPERATING AND
INITIAL COSTS.  BUT THE ECONOMIC SIGNIFICANCE OF THE ABOLISHMENT OF
TRIP-LEASING IS NOT NEARLY SO DIRECT.  THE COMMISSION HAS MERELY
DETERMINED BY WHAT METHOD THE CARRIER'S INCOME IS TO BE PRODUCED, AND
NOT HOW MUCH IT MAY CHARGE. 

IT IS TRUE THAT WE HAVE ADMONISHED THE COMMISSION AND THE COURTS TO
PERMIT INTRODUCTION OF EVIDENCE ON THE ECONOMIC IMPACT OF A RATE ORDER
WHERE THE CLAIM THAT IT COULD NOT HAVE BEEN PROFFERED DURING THE
ORIGINAL PROCEEDINGS WAS GENUINE.  BUT THAT WAS BECAUSE THE
"CONSTITUTIONAL RIGHT OF COMPENSATION," ST. JOSEPH STOCK YARDS CO. V.
UNITED STATES, 298 U.S. 38, 54, WAS DRAWN IN QUESTION.  HERE,
APPELLANTS CAN MAKE NO COMPARABLE CLAIM.  THEY ATTACK AN ORDER WHICH IS
VALID EVEN IF ITS EFFECT IS TO DRIVE SOME OPERATORS OUT OF BUSINESS. 
AS WE HAVE INDICATED, THE RULE-MAKING POWER IS ROOTED IN AND
SUPPLEMENTS CONGRESS' REGULATORY SCHEME, WHICH IN TURN DERIVES FROM THE
COMMERCE POWER.  THE FACT THAT THE VALUE OF SOME GOING CONCERNS MAY BE
AFFECTED, THEREFORE, DOES NOT SUPPORT A CLAIM UNDER THE FIFTH
AMENDMENT, IF THE RULES AND THE ACT BE RELATED, AS WE HAVE SAID THEY
ARE, TO EVILS IN COMMERCE WHICH THE FEDERAL POWER MAY REACH.  (FN20)
THIS BEING THE CASE, APPELLANTS HAD NO CONSTITUTIONAL CLAIM IN SUPPORT
OF WHICH THEY ARE ENTITLED TO INTRODUCE EVIDENCE DE NOVO, AND THE COURT
DID NOT ERR IN SUSTAINING THE OBJECTION THERETO.  AFFIRMED. 

FN1  OKLAHOMA-LOUISIANA MOTOR FREIGHT CORP. V. UNITED STATES
(D.C.W.D. OKLA.); MOVERS' CONFERENCE OF AMERICA V. UNITED STATES
(D.C.E.D. MICH.); GREYVAN LINES, INC. V. UNITED STATES (D.C.N.D. ILL.),
AND APGER V. UNITED STATES (D.C.N.D. OHIO), RESPECTIVELY. 

FN2  INTERSTATE COMMERCE ACT, SECS. 206-209, 49 STAT. 551-553. 

FN3  THE COMMISSION'S SAFETY REGULATIONS ARE PUBLISHED AT 49 CFR,
PARTS 190-196.  SECTION 203(B) ALSO EXEMPTS (1) SCHOOL TRANSPORTATION,
(2) TAXICABS, (3) HOTEL SERVICE, (4) NATIONAL PARK TRANSPORTATION, (4A)
FARMERS, (5) COOPERATIVES, (7) NEWSPAPERS, (7A) AIRLINES, (8) LOCAL
SERVICE, AND (9) "CASUAL" TRANSPORTATION. 

FN4  SEE INTERSTATE COMMERCE ACT, SECS. 209(B), 216(E), 217(B), 49
STAT. 553, 558, 561, AND 49 CFR, PART 174. 

FN5  IT APPARENTLY IS DIFFICULT TO GENERALIZE ABOUT THE ECONOMIC
SIGNIFICANCE OF LEASING AND INTERCHANGE.  A SURVEY MADE BY THE BUREAU
IN 1947 DISCLOSED ONLY THAT ABOUT TWO-THIRDS OF THE CARRIERS DID NOT
LEASE.  THE DESIRABILITY TO EACH CARRIER WOULD BE AFFECTED BY MANY
VARIABLES, OF COURSE, INCLUDING THE NUMBER OF TRUCKS HE OWNED, THE
VOLUME AND STABILITY OF LOCAL DEMAND AND THE EXTENT OF HIS CARRYING
AUTHORITY. 

FN6  IT APPEARS, HOWEVER, THAT A NUMBER OF STATES CONTROL THE
PRACTICE ALREADY.  WASHINGTON, WHICH HAS FILED AN INTERVENOR BRIEF HERE
URGING AFFIRMANCE, IS NOTABLE IN LIMITING TRIP LEASES, AND IN REQUIRING
THAT THE DRIVER BE AN EMPLOYEE OF THE CARRIER AND THAT THE LATTER
CONTROL THE VEHICLE.  THE RELEVANT PROVISION IS CITED TO US AS "LEASING
RULE 40" BY THE BRIEF OF THE ATTORNEY GENERAL OF THAT STATE. 

FN7  THE CONCLUSION THAT HIGHWAY SAFETY MAY BE IMPAIRED RESTS
ADMITTEDLY ON INFORMED SPECULATION RATHER THAN STATISTICAL CERTAINTY. 
A ROAD CHECK EXAMINATION CONDUCTED BY THE BUREAU DID NOT INDICATE ANY
SIGNIFICANT DIFFERENCE IN THE NUMBER OF SAFETY VIOLATIONS BETWEEN
LEASED AND OWNED VEHICLES. 

FN8  SEE GENERAL ORDER O.D.T. 3, REVISED, SECS. 501.5(D), 501.9,
501.10, 501.13, JULY 14, 1942, 7 FED. REG. 5445 ET SEQ., REQUIRING FULL
LEASING, INTERCHANGE AND DIVISION OF REVENUES; I.C.C. EMERGENCY ORDER
NO. M-1, JUNE 11, 1942, SECS. 215.101, 215.105, 7 FED.  REG. 4429; AND
I.C.C. EMERGENCY ORDER M-6, NOVEMBER 1, 1945, SEC. 176.10(A), 10 FED.
REG. 13595. 

FN9  EX PARTE NO. MC-43, LEASE AND INTERCHANGE OF VEHICLES BY MOTOR
CARRIERS, 51 M.C.C. 461. 

THE CHANGE WENT TO THE HEART OF THE PROBLEM.  THE EXAMINER HAD
SUGGESTED A REQUIREMENT THAT THE RENTAL BE OF AT LEAST 30 DAYS'
DURATION AND THAT COMPENSATION BE ON A BASIS OTHER THAN A DIVISION OF
REVENUES.  DIVISION 5 REJECTED BOTH PROVISIONS, RECOGNIZING THAT THEY
WOULD IN EFFECT ABOLISH TRIP-LEASING. 

FN10  THE ACT AS ORIGINALLY DRAFTED INCLUDED, AS A DEFINITION OF
CARRIERS, ALL ENGAGED IN TRANSPORTATION "WHETHER DIRECTLY OR BY A
LEASE."  SEC. 203(A)(14), (15), 49 STAT.  544, 545.  THE "ADDED
LANGUAGE WAS INTENDED TO CHECK EVASION OF THE ACT BY BRINGING WITHIN
ITS TERMS SUCH TRANSPORTATION OPERATIONS AS ARE PERFORMED THROUGH THE
LEASING OF MOTOR VEHICLES OR OTHER SIMILAR ARRANGEMENTS WHICH MAY
CONSTITUTE EITHER COMMON OR CONTRACT CARRIAGE, ACCORDING TO THE
PARTICULAR NATURE OF THE ARRANGEMENTS.  THE LANGUAGE INSERTED WILL
ENABLE THE COMMISSION TO STRIKE THROUGH SUCH EVASIONS WHERE THE FACTS
WARRANT IT."  79 CONG. REC. 5651.  THE TERMINOLOGY WAS STRICKEN BY THE
TRANSPORTATION ACT OF 1940, 54 STAT. 898, 920, WHICH, HOWEVER,
INTRODUCED NO QUALIFICATION AND WHICH, AS WE HAVE INDICATED, WAS MERELY
"FOR PURPOSES OF CLARITY."  THOMSON V. UNITED STATES, 321 U.S. 19, 23. 
SEE 86 CONG. REC. 11546. 

FN11  REGULATION OF TRANSPORTATION AGENCIES, S. DOC. NO. 152, 73D
CONG., 2D SESS.  14-15, 22-35, 226; 79 CONG. REC. 12196, 12209;
HEARINGS, SENATE COMMITTEE ON INTERSTATE COMMERCE, ON S. 1629, S. 1632,
AND S. 1635, 74TH CONG., 1ST SESS., PART I, 78-80, 404-405, 410-411. 
FN12  79TH CONG. REC. 12207-12211; 12222-12225. 

FN13  SEE FOOTNOTE 8, SUPRA. 

FN14  DIXIE OHIO EXPRESS CO. COMMON CARRIER APPLICATION, 17 M.C.C.
735; GREYVAN LINES, INC., COMMON CARRIER APPLICATION, 32 M.C.C. 719. 
SEE, HOWEVER, I.C.C. ADMINISTRATIVE RULING NO. 4, AUGUST 19, 1936,
WHICH REPRESENTS AN EARLY EFFORT ON THE PART OF THE COMMISSION TO BRING
LEASED EQUIPMENT UNDER THE CONTROL OF THE CARRIERS FOR PURPOSES OF THE
ACT.  THIS WAS APPARENTLY ABANDONED AFTER THIS COURT'S DECISIONS IN
UNITED STATES V. ROSENBLUM TRUCK LINES, INC., 315 U.S. 50, AND THOMSON
V. UNITED STATES, 321 U.S. 19. 

FN15  "SEC.  208.  (A)  ANY CERTIFICATE ISSUED UNDER SECTION 206 OR
207 SHALL SPECIFY THE SERVICE TO BE RENDERED  ...  :  PROVIDED,
HOWEVER, THAT NO TERMS, CONDITIONS, OR LIMITATIONS SHALL RESTRICT THE
RIGHT OF THE CARRIER TO ADD TO HIS OR ITS EQUIPMENT AND FACILITIES OVER
THE ROUTES, BETWEEN THE TERMINI, OR WITHIN THE TERRITORY SPECIFIED IN
THE CERTIFICATE, AS THE DEVELOPMENT OF THE BUSINESS AND THE DEMANDS OF
THE PUBLIC SHALL REQUIRE." 

SEC. 209.  "(B) ...  THE COMMISSION SHALL SPECIFY IN THE PERMIT THE
BUSINESS OF THE CONTRACT CARRIER COVERED THEREBY AND THE SCOPE THEREOF
...  PROVIDED, HOWEVER, THAT NO TERMS, CONDITIONS, OR LIMITATIONS SHALL
RESTRICT THE RIGHT OF THE CARRIER TO SUBSTITUTE OR ADD CONTRACTS WITHIN
THE SCOPE OF THE PERMIT, OR TO ADD TO HIS OR ITS EQUIPMENT AND
FACILITIES, WITHIN THE SCOPE OF THE PERMIT, AS THE DEVELOPMENT OF THE
BUSINESS AND THE DEMANDS OF THE PUBLIC MAY REQUIRE." 

FN16  LIKEWISE EXEMPTED ARE "MOTOR VEHICLES CONTROLLED AND OPERATED
BY ANY FARMER WHEN USED IN THE TRANSPORTATION OF HIS AGRICULTURAL
COMMODITIES AND PRODUCTS THEREOF, OR IN THE TRANSPORTATION OF SUPPLIES
TO HIS FARM."  SEC. 203(B)(4A). 

FN17  THE NATIONAL TRANSPORTATION POLICY, 49 U.S.C., PRECEDING SEC.
1, SPECIFICALLY REFERS TO "FAIR AND IMPARTIAL REGULATION OF ALL MODES
OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH." 

FN18  SECTION 4 OF THE ADMINISTRATIVE PROCEDURE ACT SETS OUT ONLY THE
FOLLOWING APPLICABLE REQUIREMENTS: 

"(A)  NOTICE.  - GENERAL NOTICE OF PROPOSED RULE MAKING SHALL BE
PUBLISHED IN THE FEDERAL REGISTER (UNLESS ALL PERSONS SUBJECT THERETO
ARE NAMED AND EITHER PERSONALLY SERVED OR OTHERWISE HAVE ACTUAL NOTICE
THEREOF IN ACCORDANCE WITH LAW) AND SHALL INCLUDE (1) A STATEMENT OF
THE TIME, PLACE, AND NATURE OF PUBLIC RULE MAKING PROCEEDINGS; (2)
REFERENCE TO THE AUTHORITY UNDER WHICH THE RULE IS PROPOSED; AND (3)
EITHER THE TERMS OR SUBSTANCE OF THE PROPOSED RULE OR A DESCRIPTION OF
THE SUBJECTS AND ISSUES INVOLVED  ...  . 

"(B)  PROCEDURES.  - AFTER NOTICE REQUIRED BY THIS SECTION, THE
AGENCY SHALL AFFORD INTERESTED PERSONS AN OPPORTUNITY TO PARTICIPATE IN
THE RULE MAKING THROUGH SUBMISSION OF WRITTEN DATA, VIEWS, OR ARGUMENTS
WITH OR WITHOUT OPPORTUNITY TO PRESENT THE SAME ORALLY IN ANY MANNER;
AND, AFTER CONSIDERATION OF ALL RELEVANT MATTER PRESENTED, THE AGENCY
SHALL INCORPORATE IN ANY RULES ADOPTED A CONCISE GENERAL STATEMENT OF
THEIR BASIS AND PURPOSE."  60 STAT. 237, 239, 5 U.S.C. SEC. 1003. 

THERE IS NO QUESTION BUT THAT THE FEDERAL REGISTER NOTICE AND
PARTICIPATION REQUIREMENTS WERE SATISFIED.  SEE P. 307, SUPRA. 

FN19  WE HAVE ALREADY NOTED THE MOTOR CARRIER ACT ITSELF
DISTINGUISHES BETWEEN THE SCOPE OF A HEARING REQUIRED IN RATE
PROCEEDINGS AND THOSE HELD IN RELATION TO GENERAL RULE-MAKING UNDER
SEC. 204(A)(6). 

FN20  COMPARE THE PRINCIPLES APPLICABLE TO RATE-MAKING WITH WHAT WE
HAVE SAID ABOUT THE FIFTH AMENDMENT IN THE RELATED FIELD OF WAGE AND
HOUR LAWS UNDER THE COMMERCE POWER, UNITED STATES V. DARBY, 312 U.S.
100, 125.  THIS COURT HAS POINTED OUT MANY TIMES THAT THE EXERCISE OF
THE FEDERAL COMMERCE POWER IS NOT DEPENDENT ON ITS MAINTENANCE OF THE
ECONOMIC STATUS QUO; THE FIFTH AMENDMENT IS NO PROTECTION AGAINST A
CONGRESSIONAL SCHEME OF BUSINESS REGULATION OTHERWISE VALID, MERELY
BECAUSE IT DISTURBS THE PROFITABILITY OR METHODS OF THE INTERSTATE
CONCERNS AFFECTED.  LABOR BOARD V. JONES & LAUGHLIN S. CORP., 301 U.S.
1, 43-45; CURRIN V. WALLACE, 306 U.S. 1, 13-15; UNITED STATES V. ROCK
ROYAL CO-OPERATIVE, INC., 307 U.S. 533, 572-573; NORTH AMERICAN CO. V.
SECURITIES & EXCHANGE COMM'N, 327 U.S. 686, 707-710; AMERICAN POWER &
LIGHT CO. V. SECURITIES & EXCHANGE COMM'N, 329 U.S. 90, 106-108. 

                     APPENDIX TO OPINION OF THE COURT. 

RULES PRESCRIBED GOVERNING THE PRACTICES OF AUTHORIZED CARRIERS OF
PROPERTY BY MOTOR VEHICLE IN INTERSTATE OR FOREIGN COMMERCE IN (1)
AUGMENTING EQUIPMENT, (2) INTERCHANGING OF EQUIPMENT, AND (3) RENTING
VEHICLES OR EQUIPMENT TO PRIVATE CARRIERS OR SHIPPERS. 

     *         *         *         *         * 

SEC. 207.3 EXEMPTIONS.  - OTHER THAN SEC. 207.4(C) AND (D), RELATIVE
TO INSPECTION AND IDENTIFICATION OF EQUIPMENT, THESE RULES SHALL NOT
APPLY: 

(A)  TO EQUIPMENT LEASED BY ONE AUTHORIZED CARRIER OPERATING OVER
REGULAR ROUTES TO ANOTHER AUTHORIZED CARRIER OPERATING OVER REGULAR
ROUTES AND OPERATED BETWEEN POINTS AND OVER ROUTES WHICH BOTH LESSOR
AND LESSEE ARE AUTHORIZED TO SERVE, AND TO EQUIPMENT LEASED BY ONE
AUTHORIZED CARRIER OPERATING OVER IRREGULAR ROUTES TO ANOTHER SUCH
CARRIER AND OPERATED BETWEEN POINTS AND WITHIN TERRITORY WHICH BOTH THE
LESSOR AND LESSEE ARE AUTHORIZED TO SERVE: 

(B)  TO EQUIPMENT UTILIZED WHOLLY OR IN PART IN THE TRANSPORTATION OF
RAILWAY EXPRESS TRAFFIC, OR IN SUBSTITUTED MOTOR-FOR-RAIL
TRANSPORTATION OF RAILROAD FREIGHT MOVING BETWEEN POINTS THAT ARE
RAILROAD STATIONS ON RAILROAD BILLING: 

(C)  TO EQUIPMENT UTILIZED IN TRANSPORTATION PERFORMED SOLELY AND
EXCLUSIVELY WITHIN ANY MUNICIPALITY, CONTIGUOUS MUNICIPALITIES, OR
COMMERCIAL ZONE, AS DEFINED BY THE COMMISSION: 

(D)  TO EQUIPMENT UTILIZED BY AN AUTHORIZED CARRIER IN TRANSPORTATION
PERFORMED PURSUANT TO ANY PLAN OF OPERATION APPROVED BY THE COMMISSION
IN A PROCEEDING ARISING UNDER SECTION 5 OF THE INTERSTATE COMMERCE ACT
...  . 

     *        *         *         *         * 

SEC. 207.4 AUGMENTING EQUIPMENT.  - OTHER THAN EQUIPMENT EXCHANGED
BETWEEN MOTOR COMMON CARRIERS IN INTERCHANGE SERVICE AS DEFINED IN SEC.
207.5 OF THESE RULES, AUTHORIZED CARRIERS MAY PERFORM AUTHORIZED
TRANSPORTATION IN OR WITH EQUIPMENT WHICH THEY DO NOT OWN ONLY UNDER
THE FOLLOWING CONDITIONS: 

(A)  THE CONTRACT, LEASE, OR OTHER ARRANGEMENT FOR THE USE OF SUCH
EQUIPMENT: 

(1)  SHALL BE MADE BETWEEN THE AUTHORIZED CARRIER AND THE OWNER OF
THE EQUIPMENT: 

(2)  SHALL BE IN WRITING AND SIGNED BY THE PARTIES THERETO, OR THEIR
REGULAR EMPLOYEES OR AGENTS DULY AUTHORIZED TO ACT FOR THEM IN THE
EXECUTION OF CONTRACTS, LEASES, OR OTHER ARRANGEMENTS: 

(3)  SHALL SPECIFY THE PERIOD FOR WHICH IT APPLIES, WHICH SHALL BE
NOT LESS THAN 30 DAYS WHEN THE EQUIPMENT IS TO BE OPERATED FOR THE
AUTHORIZED CARRIER BY THE OWNER OR EMPLOYEES OF THE OWNER; ... 

     *         *         *   *         * 

(4)  SHALL PROVIDE FOR THE EXCLUSIVE POSSESSION, CONTROL AND USE OF
THE EQUIPMENT, AND FOR THE COMPLETE ASSUMPTION OF RESPONSIBILITY IN
RESPECT THERETO, BY THE AUTHORIZED CARRIER,  ...  . 

     *         *         *         *      * 

(5)  SHALL SPECIFY THE COMPENSATION TO BE PAID BY THE LESSEE FOR THE
RENTAL OF THE LEASED EQUIPMENT; PROVIDED, HOWEVER, THAT SUCH
COMPENSATION SHALL NOT BE COMPUTED ON THE BASIS OF ANY DIVISION OR
PERCENTAGE OF ANY APPLICABLE RATE OR RATES ON ANY COMMODITY OR
COMMODITIES TRANSPORTED IN SAID VEHICLE OR ON A DIVISION OR PERCENTAGE
OF ANY REVENUE EARNED BY SAID VEHICLE DURING THE PERIOD FOR WHICH THE
LEASE IS EFFECTIVE; 

(6) SHALL SPECIFY THE TIME AND DATE OR THE CIRCUMSTANCE ON WHICH THE
CONTRACT, LEASE, OR OTHER ARRANGEMENT BEGINS, AND THE TIME OR THE
CIRCUMSTANCE ON WHICH IT ENDS.  THE DURATION OF THE CONTRACT, LEASE, OR
OTHER ARRANGEMENT SHALL COINCIDE WITH THE TIME FOR THE GIVING OF
RECEIPTS FOR THE EQUIPMENT, AS REQUIRED BY PARAGRAPH (B) OF THIS

     *         *   *         *         * 

(C)  INSPECTION OF EQUIPMENT.  - IT SHALL BE THE DUTY OF THE
AUTHORIZED CARRIER, BEFORE TAKING POSSESSION OF EQUIPMENT, TO INSPECT
THE SAME OR TO HAVE THE SAME INSPECTED  ...  . 

     *         *         *         *      * 

(D)  IDENTIFICATION OF EQUIPMENT.  - THE AUTHORIZED CARRIER ACQUIRING
THE USE OF EQUIPMENT UNDER THIS RULE SHALL PROPERLY AND CORRECTLY
IDENTIFY SUCH EQUIPMENT AS OPERATED BY IT  ...  . 

     *         *         *         *         * 

(E)  DRIVER OF EQUIPMENT.  - BEFORE ANY PERSON OTHER THAN A REGULAR
EMPLOYEE OF THE AUTHORIZED CARRIER IS ASSIGNED TO DRIVE EQUIPMENT
OPERATED UNDER THESE RULES, IT SHALL BE THE DUTY OF THE AUTHORIZED
CARRIER TO MAKE CERTAIN THAT SUCH DRIVER IS FAMILIAR WITH, AND THAT HIS
EMPLOYMENT AS A DRIVER WILL NOT RESULT IN, VIOLATION OF ANY PROVISION
OF PARTS 192, 193, 195, AND 196 OF THE MOTOR CARRIER SAFETY REGULATIONS
(REV.) PERTAINING TO "DRIVING OF MOTOR VEHICLES," "PARTS AND
ACCESSORIES NECESSARY FOR SAFE OPERATION," "HOURS OF SERVICE OF
DRIVERS," AND "INSPECTION AND MAINTENANCE," AND TO REQUIRE SUCH DRIVER
TO FURNISH A CERTIFICATE OF PHYSICAL EXAMINATION IN ACCORDANCE WITH
PART 191 OF THE MOTOR CARRIER SAFETY REGULATIONS (REV.) PERTAINING TO
"QUALIFICATIONS OF DRIVERS," OR, IN LIEU THEREOF, A PHOTOSTATIC COPY OF
THE ORIGINAL CERTIFICATE OF PHYSICAL EXAMINATION, WHICH SHALL BE
RETAINED IN THE AUTHORIZED CARRIER'S FILE. 

(F)  RECORD OF USE OF EQUIPMENT.  - THE AUTHORIZED CARRIER UTILIZING
EQUIPMENT OPERATED UNDER THESE RULES SHALL PREPARE AND KEEP A MANIFEST
COVERING EACH TRIP FOR WHICH THE EQUIPMENT IS USED IN ITS SERVICE,
CONTAINING THE NAME AND ADDRESS OF THE OWNER OF SUCH EQUIPMENT, THE
MAKE, MODEL, YEAR, SERIAL NUMBER, AND THE STATE REGISTRATION NUMBER OF
THE EQUIPMENT, AND THE NAME AND ADDRESS OF THE DRIVER OPERATING THE
EQUIPMENT, POINT OF ORIGIN, THE TIME AND DATE OF DEPARTURE, THE POINT
OF FINAL DESTINATION, AND THE AUTHORIZED CARRIER'S SERIAL NUMBER OF ANY
IDENTIFICATION DEVICE AFFIXED TO THE EQUIPMENT  ...  . 

SEC. 207.5 INTERCHANGE OF EQUIPMENT.  - COMMON CARRIERS OF PROPERTY
MAY BY CONTRACT, LEASE, OR OTHER ARRANGEMENT, INTERCHANGE ANY EQUIPMENT
DEFINED IN SEC. 207.2 OF THESE RULES WITH ONE OR MORE OTHER COMMON
CARRIERS OF PROPERTY, OR ONE OF SUCH CARRIERS MAY RECEIVE FROM ANOTHER
SUCH CARRIER, ANY OF SUCH EQUIPMENT, IN CONNECTION WITH ANY THROUGH
MOVEMENT OF TRAFFIC, UNDER THE FOLLOWING CONDITIONS: 

(A)  AGREEMENT PROVIDING FOR INTERCHANGE.  - THE CONTRACT, LEASE, OR
OTHER ARRANGEMENT PROVIDING FOR INTERCHANGE SHALL SPECIFICALLY DESCRIBE
THE EQUIPMENT TO BE INTERCHANGED; THE SPECIFIC POINTS OF INTERCHANGE;
THE USE TO BE MADE OF THE EQUIPMENT AND THE CONSIDERATION FOR SUCH USE;
AND SHALL BE SIGNED BY THE PARTIES TO THE CONTRACT, LEASE, OR OTHER
ARRANGEMENT, OR THEIR REGULAR EMPLOYEES OR AGENTS DULY AUTHORIZED TO
ACT FOR THEM, IN THE EXECUTION OF SUCH CONTRACTS, LEASES, OR OTHER
ARRANGEMENTS. 

(B)  AUTHORITY OF CARRIERS PARTICIPATING IN INTERCHANGE.  - THE
CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY HELD BY THE CARRIERS
PARTICIPATING IN THE INTERCHANGE ARRANGEMENT MUST AUTHORIZE THE
TRANSPORTATION OF THE COMMODITIES PROPOSED TO BE TRANSPORTED IN THE
THROUGH MOVEMENT, AND SERVICE FROM AND TO THE POINT WHERE THE PHYSICAL
INTERCHANGE OCCURS. 

(C)  DRIVER OF INTERCHANGED EQUIPMENT.  - EACH CARRIER MUST ASSIGN
ITS OWN DRIVER TO OPERATE THE EQUIPMENT THAT IS PROPOSED TO BE OPERATED
FROM AND TO THE POINT OR POINTS OF INTERCHANGE AND OVER THE ROUTE OR
ROUTES OR WITHIN THE TERRITORY AUTHORIZED IN THE PARTICIPATING
CARRIERS' RESPECTIVE CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY. 

(D)  THROUGH BILLS OF LADING.  - THE TRAFFIC TRANSPORTED IN
INTERCHANGE SERVICE MUST MOVE ON THROUGH BILLS OF LADING ISSUED BY THE
ORIGINATING CARRIER, AND THE RATES CHARGED AND REVENUES COLLECTED MUST
BE ACCOUNTED FOR IN THE SAME MANNER AS IF THERE HAD BEEN NO INTERCHANGE
OF EQUIPMENT.   CHARGES FOR THE USE OF THE EQUIPMENT SHALL BE KEPT
SEPARATE AND DISTINCT FROM DIVISIONS OF THE JOINT RATES OR THE
PROPORTIONS THEREOF ACCRUING TO THE CARRIERS BY THE APPLICATION OF
LOCAL OR PROPORTIONAL RATES. 

(E)  INSPECTION OF EQUIPMENT.  - IT SHALL BE THE DUTY OF THE CARRIER
ACQUIRING THE USE OF EQUIPMENT IN INTERCHANGE TO INSPECT SUCH
EQUIPMENT, OR TO HAVE IT INSPECTED IN THE MANNER PROVIDED IN SEC.
207.4(C) OF THESE RULES; AND EQUIPMENT WHICH DOES NOT MEET THE
REQUIREMENTS OF THE SAFETY REGULATIONS SHALL NOT BE OPERATED IN THE
RESPECTIVE SERVICES OF THE INTERCHANGE CARRIERS UNTIL THE DEFECTS HAVE
BEEN CORRECTED. 

(F)  IDENTIFICATION OF EQUIPMENT.  - THE AUTHORIZED CARRIERS
OPERATING EQUIPMENT IN INTERCHANGE SERVICE UNDER THIS SECTION SHALL
CARRY WITH EACH VEHICLE SO OPERATED A COPY OF THE CONTRACT, LEASE, OR
OTHER ARRANGEMENT WHILE THE EQUIPMENT IS BEING OPERATED IN THE
INTERCHANGE SERVICE. 

     *         *         *   *         * 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

I AGREE WITH THE COURT THAT THE INTERSTATE COMMERCE ACT GRANTS THE
COMMISSION BROAD IMPLIED POWERS TO CARRY OUT THE GENERAL PURPOSES
OUTLINED IN THE LAW.  SEE UNITED STATES V. PENNSYLVANIA R. CO., 323
U.S. 612, 616.  BUT THE COMMISSION IS WITHOUT POWER TO INVOKE VAGUE
IMPLICATIONS TO DEFEAT THE ACT'S PURPOSE OR TO OVERRIDE ITS CLEARLY
EXPRESSED PROVISIONS.  THIS, I THINK, IS WHAT THE COMMISSION HAS DONE
IN MOST OF THE COMMISSION RULES WHICH THE COURT UPHOLDS.  IN MY VIEW
THE RULES RUN COUNTER TO THE ACT IN THREE IMPORTANT RESPECTS: 

A. THE CONGRESSIONALLY GRANTED RIGHT OF MOTOR CARRIERS TO CHOOSE FOR
THEMSELVES WHETHER THEY WOULD USE LEASED OR PURCHASED EQUIPMENT IS
PRACTICALLY DESTROYED BY THE IMPOSITION OF BURDENSOME RESTRICTIONS. 
B. THE EXEMPTION FROM REGULATION GRANTED CARRIERS OF AGRICULTURAL
PRODUCTS BY SEC.  203(B) OF PART II OF THE ACT IS BURDENED BY
RESTRICTIVE RULES THAT SUBSTANTIALLY TAKE AWAY THE ADVANTAGES CONGRESS
INTENDED TO CONFER BY THE EXEMPTION. 

C. RAILROADS THAT OPERATE MOTOR VEHICLES AS A PART OF THE BUSINESS OF
COMMON CARRIAGE ARE GRANTED SPECIAL ADVANTAGES IN VIOLATION OF THE
EXPRESS POLICY OF THE ACT WHICH REQUIRES EACH METHOD OF TRANSPORTATION
TO BE LEFT WITH ITS INHERENT ADVANTAGES.    A. MOTOR VEHICLE COMMON
CARRIAGE HAD REACHED AN ADVANCED STAGE WHEN CONGRESS PASSED THE MOTOR
CARRIER ACT IN 1935.  (FN1)  EARLY DEVELOPMENT OF THE BUSINESS WAS
ALONG LINES THAT THE CARRIERS FOUND TO BE ADVANTAGEOUS.  SOME CARRIERS
OWNED THEIR VEHICLES, WHILE OTHERS LEASED THEM.  THE ACT DID NOT TRY TO
DISRUPT THIS SYSTEM, BUT LEFT MOTOR CARRIERS FREE TO CONTINUE TO OWN OR
LEASE EQUIPMENT IN ACCORDANCE WITH THEIR BEST FINANCIAL JUDGMENT.  AND
CONGRESS WAS CONTENT TO REGULATE THE COMMON OR CONTRACT CARRIERS
THEMSELVES; IT MADE NO EFFORT WHATEVER TO REGULATE THOSE WHO OWNED THE
VEHICLES THAT WERE LEASED TO THE REGULATED CARRIERS.  CONGRESS WAS THUS
TALKING ABOUT THE ACQUISITION OF EQUIPMENT BY LEASE AS WELL AS BY
PURCHASE WHEN IT PROVIDED THAT THE COMMISSION SHOULD BE WITHOUT POWER
TO RESTRICT THE RIGHT OF CARRIERS TO ADD TO THEIR EQUIPMENT OR
FACILITIES AS THE DEVELOPMENT OF THEIR BUSINESS AND THE DEMANDS OF THE
PUBLIC REQUIRED.  (FN2)  WHILE THIS PROVISION IS PATENTLY NOT DESIGNED
TO FORBID THE COMMISSION FROM LIMITING THE TYPE OF VEHICLES IN THE
INTEREST OF SAFETY, (FN3) THE PROVISION JUST AS PATENTLY DOES DEPRIVE
THE COMMISSION OF POWER TO FORBID THE LEASE AND PURCHASE OF VEHICLES
WHICH MEET THE TEST OF SAFETY. 

THE NEW RULES ADOPTED BY THE FULL COMMISSION PUT BURDENSOME
RESTRICTIONS ON THE POWER TO LEASE APPROPRIATE VEHICLES, RESTRICTIONS
WHICH, IN MY VIEW, GO BEYOND THE POWER OF THE COMMISSION.  THESE
BURDENSOME RESTRICTIONS HAD BEEN PREVIOUSLY REJECTED BY THE
COMMISSION'S DIVISION V, COMPOSED OF COMMISSIONERS PARTICULARLY
RESPONSIBLE FOR SUPERVISION OF MOTOR VEHICLE AFFAIRS AS DISTINGUISHED
FROM SUPERVISION OF RAILROAD AFFAIRS.  THIS RECORD MAKES PLAIN THAT
ENFORCEMENT OF THESE BURDENSOME RULES WILL PRODUCE VIOLENT
REPERCUSSIONS IN THE MOTOR CARRIER INDUSTRY; MANY MOTOR CARRIERS WILL
SUFFER RUINOUS LOSSES.  THE BUSINESS OF LEASING VEHICLES FOR USE BY
COMMON CARRIERS WILL BE CURTAILED OR PERHAPS EVEN DESTROYED.  THE
TENDENCY OF THE RULES IS THUS TO ELIMINATE MANY SMALL BUSINESS
VENTURES.  IT MAY BE, AS THE COMMISSION SEEMS TO THINK, THAT THE
NATION'S MOTOR CARRIER BUSINESS CAN BE MORE EFFICIENTLY ACCOMPLISHED BY
A FEW BIG COMPANIES THAT OWN ALL THEIR EQUIPMENT, THAN BY A LARGE
NUMBER OF SMALL COMPANIES THAT OBTAIN ALL OR PART OF THEIR EQUIPMENT BY
LEASE.  BUT IF THAT GOVERNMENTAL ALTERATION IN OUR BUSINESS STRUCTURE
IS TO BE ORDAINED, CONGRESS, NOT THE COMMISSION, SHOULD DO THE
ORDAINING. 

B. THE FARMERS OF THE NATION HAVE FOR A LONG TIME BEEN LARGELY
DEPENDENT UPON REASONABLY PRICED MOTOR TRANSPORTATION TO GET THEIR
PRODUCE TO MARKET.  (FN4)  WHEN THE MOTOR CARRIER ACT WAS UNDER
CONSIDERATION, THERE WAS MUCH APPREHENSION EXPRESSED LEST REGULATION
DEPRIVE FARMERS OF THIS ADVANTAGE.  (FN5)  TO MEET THIS FEELING, THE
BILL WAS AMENDED SEVERAL TIMES AND FINALLY WAS PASSED WITH THE
AGRICULTURAL EXEMPTION SET FORTH IN SEC. 203(B).  EXCEPT AS TO CERTAIN
SAFETY REQUIREMENTS SEC. 203(B) EXEMPTS FROM REGULATION MOTOR VEHICLES
OF FARMERS AND FARM COOPERATIVES USED FOR FARM PURPOSES; THE SAME
EXEMPTION IS ALSO GRANTED TO ALL MOTOR VEHICLES WHILE BEING USED TO
CARRY AGRICULTURAL COMMODITIES.  THERE CAN BE NO DOUBT THAT THE
COMMISSION'S NEW RULES WILL DRIVE MANY OF THESE CARRIERS OF FARM
PRODUCTS OUT OF BUSINESS AND THAT MANY OTHERS WILL BE COMPELLED TO
INCREASE THEIR RATES.  SECTION 207.4 OF THE NEW RULES IS RATHER
OBVIOUSLY DESIGNED TO MAKE THIS EXEMPTION MUCH LESS VALUABLE.  IT
FORBIDS AUTHORIZED CARRIERS TO LEASE MOTOR TRUCKS EXCEPT FOR TERMS OF
AT LEAST 30 DAYS, IF THE TRUCKS ARE TO BE OPERATED BY OWNERS OR
EMPLOYEES OF OWNERS.  THE COMMISSION REPORTED THAT THIS RULE WOULD
COMPLETELY PROHIBIT TRIP-LEASING.  (FN6)  A VERY LARGE PART OF ALL TRIP
LEASING TAKES PLACE BETWEEN REGULATED CARRIERS AND TRUCKERS WHO ARE
EXEMPT BECAUSE THEY CARRY FARM PRODUCTS.  AN ILLUSTRATION CAN BE FOUND
IN THE CARRIAGE OF FLORIDA CITRUS FRUITS.  ON DELIVERING FRUIT IN
NORTHERN STATES THE PRACTICE OF THESE EXEMPT TRUCKERS HAS BEEN TO LEASE
THEIR MOTOR VEHICLES TO REGULATED CARRIERS FOR THE TRANSPORTATION OF
GOODS TO FLORIDA.  UNLESS VEHICLES THAT BRING CITRUS FRUITS NORTH CAN
MAKE SUCH ARRANGEMENTS THEY MUST GO BACK TO FLORIDA EMPTY.  "EMPTY OR
PARTIALLY LOADED TRUCKS ON RETURN TRIPS MAY WELL DRIVE THE ENTERPRISE
TO THE WALL."  UNITED STATES V. CAROLINA CARRIERS CORP., 315 U.S. 475,
488.  THE COMMISSION'S RULES MAKE IT IMPOSSIBLE FOR THESE EXEMPT
CARRIERS OF AGRICULTURAL PRODUCTS TO GET THE ADVANTAGE OF A LEASE FOR A
RETURN HAUL.  THE RESULT IS DESTRUCTION FOR A LARGE PART OF THAT
BUSINESS. 

THE REASON THE COMMISSION HAS ADOPTED A RULE SO DESTRUCTIVE OF THE
AGRICULTURAL EXEMPTION CONGRESS GRANTED IS APPARENT FROM A COLLOQUY
WHICH TOOK PLACE IN THE DISTRICT COURT.  THE ATTORNEY FOR THE
COMMISSION WAS ASKED IF IT WAS WASTEFUL FOR A TRUCK TO GO BACK TO
FLORIDA EMPTY.  WITH COMMENDABLE CANDOR HE SAID:  "IT DOES SEEM
UNECONOMICAL IN REQUIRING IT TO GO BACK EMPTY, BUT THEY CAN - THE
DIFFICULTY COMES, I THINK, IN LETTING IT COME UP IN THE FIRST PLACE." 
IN OTHER WORDS THE "DIFFICULTY COMES" BECAUSE CONGRESS AGREED TO EXEMPT
THESE FARM PRODUCTS.  THIS CONGRESSIONALLY CREATED "DIFFICULTY" IS
BEING CLEARED UP BY THE COMMISSION.  ITS NEW RULES AGAINST TRIP-LEASING
WILL FORCE THESE AGRICULTURAL CARRIERS TO RAISE THEIR RATES HIGH ENOUGH
TO FRUSTRATE PURPOSES UNDERLYING THE AGRICULTURAL EXEMPTION.  (FN7) 

C. THE COMMISSION HAS EXEMPTED RAILROADS AND EXPRESS COMPANIES THAT
CARRY GOODS FOR HIRE IN MOTOR VEHICLES FROM ALL OF THE REGULATIONS
EXCEPT THE PROVISIONS OF SEC. 207.4(C) AND (D), WHICH LATTER TWO
PROVISIONS RELATE TO INSPECTION AND IDENTIFICATION OF EQUIPMENT.  IT IS
RATHER INTERESTING THAT WHILE THE FULL COMMISSION GRANTED THE RAILROADS
THIS AMAZING EXEMPTION, DIVISION V, THE MOTOR CARRIER DIVISION OF THE
COMMISSION, REFUSED TO ALLOW IT.  THE COMMISSION AT THE SAME TIME
REFUSED TO EXEMPT FROM ITS NEW RULES MOTOR CARRIERS WHOSE OPERATIONS
WERE SHOWN TO BE SUBSTANTIALLY IDENTICAL WITH THOSE PERFORMED BY
RAILROAD AND EXPRESS CARRIERS WHICH THE COMMISSION LEFT FREE FROM THE
BURDENS OF THE RULES.  SINCE THE RAILROADS AND THE INDEPENDENT MOTOR
CARRIERS ARE IN COMPETITION, IT IS NOT STRANGE TO FIND THE RAILROADS
ARGUING HERE THAT WHILE THE RAILROADS' EXEMPTION SHOULD BE SUSTAINED,
THE NEW RULES SHOULD BE APPLIED IN ALL THEIR VIGOR TO THE INDEPENDENT
MOTOR CARRIERS.  I KNOW OF NO POWER WHICH THE COMMISSION HAS TO ALLOW
RAILROADS WHICH ENGAGE IN THE MOTOR CARRIER BUSINESS EXEMPTIONS AND
PREFERENCES WHICH ARE DENIED COMPLETELY MOTOR CARRIERS NOT OWNED BY
RAILROADS. 

THE COMMISSION'S RULES AS A WHOLE FASHION BROAD NEW NATIONAL
TRANSPORTATION POLICIES DIFFERENT FROM AND IN CONFLICT WITH THOSE
CONGRESS ADOPTED AFTER MATURE CONSIDERATION.  I WOULD REVERSE THE
JUDGMENTS OF THE DISTRICT COURTS AND DIRECT THAT THE RULES BE SET ASIDE
AS BEYOND THE COMMISSION'S AUTHORITY. 

FN1  49 STAT. 543, AS AMENDED, 54 STAT. 919, 49 U.S.C. SEC. 301. 

FN2  THIS DENIAL OF POWER TO THE COMMISSION APPEARS IN SECS. 208(A)
AND 209(B) OF PART II OF THE ACT.  49 U.S.C. SECS. 308(A) AND 309(B). 

FN3  CRESCENT EXPRESS LINES V. UNITED STATES, 320 U.S. 401, 408-409. 

FN4  FOR EXAMPLE, IN 1950:

           PERCENTAGES OF SELECTED FARM PRODUCTS TRANSPORTED

           TO PRINCIPAL MARKETS IN TRUCKS.             PERCENT

                                   PERCENT 

HOGS                              79    GRAPEFRUIT            43 

CATTLE                            76    ORANGES                   33 

CALVES                            78    APPLES                    64 

SHEEP AND LAMBS          44    TOMATOES                  60 

SHELL EGGS                    93    POTATOES                  37 

DRESSED POULTRY                   76    LETTUCE                   41 

LIVE POULTRY                      99    MILK         79 

TRANSPORTATION OF SELECTED AGRICULTURAL COMMODITIES TO LEADING
MARKETS BY RAIL AND MOTORTRUCK, 1939-50, UNITED STATES DEPARTMENT OF
AGRICULTURE, BUREAU OF AGRICULTURAL ECONOMICS (JUNE 1951), TABLE 1, P.
10. 

FN5  FOR ILLUSTRATION, CONGRESSMAN WALTER PIERCE OF OREGON SAID, "MR.
CHAIRMAN, I HAVE WATCHED THE DEBATE VERY CLOSELY.  I WONDER WHY THIS
BILL?  I AM A FARMER, LIVING 300 MILES FROM TIDEWATER.  I RAISE WHEAT
AND STOCK.  THE ONLY RELIEF I HAVE EVER SEEN IN MY 40 YEARS ON THAT
FARM FROM THE TERRIFIC CONFISCATORY RAILROAD FREIGHT RATES WAS WHEN THE
TRUCKS CAME. 

     *         *         *         *         * 

"THE CAMEL IS CERTAINLY GETTING HIS NOSE INTO THE TENT, AND THIS
MEANS THE DEATH OF THE MOTOR TRANSPORTATION WHICH THE FARMER HAS HAD
AND WHICH HAS BEEN THE ONLY RELIEF THAT HAS COME TO HIM FROM THE
PREVIOUS EXCESSIVE RAILROAD RATES."  79 CONG. REC. 12216, 12217; SEE
ALSO 12197-12198. 

FN6  TRIP LEASES CAN BE MADE BY MOTOR CARRIERS SPECIFICALLY EXEMPTED
FROM THE RULES BY THE COMMISSION - RAILROAD MOTOR CARRIERS, EXPRESS
COMPANY MOTOR CARRIERS, AND THE ALLIED VAN LINES. 

FN7  THIS STATUTORY AGRICULTURAL EXEMPTION REFLECTS A CONGRESSIONAL
BELIEF THAT "  ...  IT WOULD BE BETTER FOR THE CONGRESS TO DECIDE WHAT
SHOULD BE EXEMPTED RATHER THAN TO LEAVE IT IN THE HANDS OF THE
COMMISSION THAT MIGHT NULLIFY THE ENTIRE INTENTIONS OF CONGRESS  ...
."  79 CONG. REC. 12225. 
..END :







PENNSYLVANIA RAILROAD CO. V. O'ROURKE 344 U.S. 334 


NO. 60.  ARGUED DECEMBER 8, 1952 - DECIDED JANUARY 12, 1953 - 194 F.2D
612, REVERSED. 


RESPONDENT WAS EMPLOYED BY PETITIONER RAILROAD AS A "FREIGHT BRAKEMAN"
IN ITS YARDS.  HIS DUTIES INCLUDED WORK ABOARD PETITIONER'S CAR FLOATS
MOORED IN NAVIGABLE WATERS.  HE WAS INJURED ON A CAR FLOAT WHILE
RELEASING ALLEGEDLY DEFECTIVE HAND-BRAKES ON A FREIGHT CAR WHICH WAS
BEING UNLOADED FROM THE CAR FLOAT BY A SWITCH ENGINE.  HELD:
RESPONDENT'S REMEDY WAS UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT EXCLUSIVELY, AND NOT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT.  PP. 334-342. 

PENNSYLVANIA RAILROAD CO. V. O'ROURKE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

RESPONDENT'S SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT WAS
DISMISSED BY THE DISTRICT COURT ON THE GROUND THAT THE LONGSHOREMEN'S
AND HARBOR WORKERS' COMPENSATION ACT APPLIED EXCLUSIVELY.  99 F. SUPP.
506.  THE COURT OF APPEALS REVERSED.  194 F.2D 612.  THIS COURT GRANTED
CERTIORARI.  344 U.S. 811.  REVERSED, P. 342. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI REQUIRES US TO DETERMINE WHICH FEDERAL INDUSTRIAL
ACCIDENT STATUTE - THE FEDERAL EMPLOYER'S 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. SEC. 51 ET SEQ., (FN1)
ALLEGING A FAULTY BRAKE MECHANISM MAINTAINED IN VIOLATION OF THE SAFETY
APPLIANCE ACTS, 27 STAT. 531, 45 U.S.C.  SEC. 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. SEC. 901 ET SEQ., APPLIED
EXCLUSIVELY, (FN2) 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, BECAUSE OF AN ALLEGED CONFLICT WITH AN
EARLIER DECISION OF THIS COURT, NOGUEIRA V. N.Y., N.H.&H.R. CO., 281
U.S. 128. 

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, 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: 

"THE WORK OF A STEVEDORE IN WHICH THE DECEASED WAS ENGAGING IS
MARTIME 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 217. 

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.
SEC. 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 135-136.  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.  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 227, CONGRESS ADOPTED THE VALID,
EXCLUSIVE AND UNIFORM COMPENSATION ACT NOW IN EFFECT FOR LONGSHOREMEN
AND HARBOR WORKERS.  CROWELL V. BENSON, 285 U.S. 22.  SEAMEN PREFERRED
TO TAKE THE RISKS OF THE JONES ACT.  NOGUEIRA V. N.Y., N.H.&H.R. CO.,
SUPRA, AT 136.  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.  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 SEC. 903(A) THAT INCLUDES THOSE OUTSIDE THE
REACH OF STATE COMPENSATION LAWS. 

THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SEC. 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, AT 213.  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 SECS.
903(A) AND 905 COVERED SUCH INJURIES ON NAVIGABLE WATER AND MADE ITS
COVERAGE EXCLUSIVE.  NOGUEIRA V. N.Y., N.H.&H.R. CO., SUPRA, AT 130
131. 

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.
SEC. 905, DEPENDS ON SEC. 903 WHICH DEFINES ITS "COVERAGE":

"(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  ...  ."  (FN3) 

"EMPLOYER," WHO IN TURN IS DEFINED BY SEC. 902(4): 

"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)." 

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: 

"THE DEFINITION (SEC. 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 132 AND 134. 

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."  (FN4) 

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. N.Y., N.H.&H.R. CO.,
SUPRA, AT 134.  BESIDES SEC. 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 SECS. 903, 905 EXTENDS TO AN EMPLOYEE OF AN
EMPLOYER, MADE LIABLE BY SEC. 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 SEC. 902(2), AND WHETHER
HE WAS A MEMBER OF THE CREW OF THE VESSEL WITHIN THE EXCEPTIONS OF
SECS. 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, AND SOUTH CHICAGO CO. V. BASSETT, 309 U.S. 251.  (FN5) 

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 182.  WE READ THE NOGUEIRA CASE DIFFERENTLY.  THERE IT WAS SAID: 

"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 136. 

ANALOGOUS CASES LEND WEIGHT TO OUR CONCLUSION.  BUREN V. SOUTHERN
PACIFIC CO., 50 F.2D 407, IS INDISTINGUISHABLE ON ITS FACTS.  (FN6)
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
246.  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.  (FN7)
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.  (FN8)  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. 
REVERSED. 

FN1  45 U.S.C. SEC. 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."    FN2  33
U.S.C. SEC. 905: 

"THE LIABILITY OF AN EMPLOYER PRESCRIBED IN SECTION 904 OF THIS TITLE
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,  ...  ." 

FN3  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.    FN4  THE NOGUEIRA CASE WAS A UNANIMOUS DECISION.  ON
THE SAME DAY, BAIZLEY IRON WORKS V. SPAN, 281 U.S. 222, 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. 

FN5  NORTON V. WARNER CO., 321 U.S. 565; MERRITT-CHAPMAN & SCOTT
CORP. V. WILLARD, 189 F.2D 791, AND LONG ISLAND R. CO. V. LOWE, 145
F.2D 516, FALL WITHIN A SIMILAR CATEGORY. 

FN6  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., 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; JOB V. ERIE R. CO., 79 F. SUPP. 698, AND RIST V. PITTSBURGH &
CONNEAUT DOCK CO., 104 F. SUPP. 29. 

FN7  BAIZLEY IRON WORKS V. SPAN, 281 U.S. 222 (A PAINTER); DE
BARDELEBEN COAL CORP. V. HENDERSON, 142 F.2D 481 (MEMBER OF SHORE
GANG); TRAVELERS INS. CO. V. MCMANIGAL, 139 F.2D 949 (CARPENTER);
TRAVELERS INS. CO. V. BRANHAM, 136 F.2D 873 (FOREMAN OF A CONCRETE
POURING GANG); STANDARD DREDGING CORP. V. HENDERSON, 57 F. SUPP. 770
(MEMBER OF SHORE GANG); FORD V. PARKER, 52 F. SUPP. 98 (WATCHMAN). 
THIS LIST IS ILLUSTRATIVE BUT BY NO MEANS EXHAUSTIVE. 

FN8  DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249, 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. 

MR. JUSTICE MINTON, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE CLARK JOIN, DISSENTING. 

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.  IN THAT CASE, AN
EMPLOYEE OF A RAILROAD COMPANY WAS TRUCKING INTERSTATE FREIGHT FROM THE
DOCK ONTO A CAR 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. 

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. 

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. 
..END :

















NATIONAL LABOR RELATIONS BOARD V. SEVEN-UP BOTTLING COMPANY OF MIAMI,
INC. 344 U.S. 344 


NO. 217.  ARGUED DECEMBER 19, 1952 - DECIDED JANUARY 12, 1953 - 196 F.2D
424, REVERSED. 


UNDER SEC. 10(C) OF THE LABOR MANAGEMENT RELATIONS ACT, THE NATIONAL
LABOR RELATIONS BOARD ORDERED REINSTATEMENT OF DISCRIMINATORILY
DISCHARGED EMPLOYEES OF RESPONDENT, WITH BACK PAY TO BE COMPUTED ON THE
BASIS OF EACH SEPARATE CALENDAR QUARTER OR PORTION THEREOF DURING THE
PERIOD FROM THE DATE OF DISCHARGE TO THE DATE OF A PROPER OFFER OF
REINSTATEMENT.  HELD:  THE BOARD WAS ENTITLED TO A DECREE ENFORCING THE
ORDER.  PP. 345-352. 

(A)  IN DEVISING A REMEDY FOR DISCRIMINATORY DISCHARGE, THE BOARD IS
NOT CONFINED TO THE RECORD OF A PARTICULAR PROCEEDING.  PP. 348-349. 

(B)  THERE ARE IN THIS CASE NO EXTRAORDINARY CIRCUMSTANCES PERMITTING
RESPONDENT TO RAISE HERE FOR THE FIRST TIME AN OBJECTION BASED ON THE
SEASONAL NATURE OF ITS BUSINESS, WHICH HAD NOT BEEN URGED BEFORE THE
BOARD OR THE COURT OF APPEALS.  P. 350. 

(C)  THE FACT THAT THE LANGUAGE OF THE ACT WAS REENACTED WHILE THE
BOARD ADHERED TO AN EARLIER FORMULA FOR COMPUTING BACK PAY DOES NOT
PRECLUDE THE BOARD FROM DEPARTING FROM THAT EARLIER FORMULA.   PP. 350
352. 

NATIONAL LABOR RELATIONS BOARD V. SEVEN-UP BOTTLING COMPANY OF MIAMI,
INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

ON THE PETITION OF THE NATIONAL LABOR RELATIONS BOARD FOR ENFORCEMENT
OF AN ORDER, 92 N.L.R.B. 1622, THE COURT OF APPEALS DENIED ENFORCEMENT
OF THAT PART OF THE ORDER PRESCRIBING A METHOD FOR COMPUTING BACK PAY. 
196 F.2D 424.  THIS COURT GRANTED CERTIORARI.  344 U.S. 811.  REVERSED,
P. 352. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ACTING UNDER SEC. 10(C) OF THE LABOR MANAGEMENT RELATIONS ACT, 1947
(THE TAFT-HARTLEY ACT), 61 STAT. 136, 147, 29 U.S.C. (SUPP. IV) SEC.
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: 

"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. 

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."  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. 

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. LABOR
BOARD, 313 U.S. 177, 198.  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.
LABOR BOARD, 319 U.S. 533, 540.  THE WOOLWORTH FORMULA, AS A GENERAL
METHOD OF COMPUTATION, IS, UNDER THIS TEST, PROOF AGAINST JUDICIAL
CHALLENGE. 

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.
LABOR BOARD V. PENNSYLVANIA GREYHOUND LINES, INC., 303 U.S. 261.  FOR
FIFTEEN YEARS THE BOARD FOLLOWED THE PRACTICE IT HAD LAID DOWN IN THAT
CASE AND CALCULATED BACK PAY ON THE BASIS 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. 

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.  IT IS AS TRUE OF THE LABOR BOARD AS
IT WAS OF THE AGENCY IN THE BABCOCK CASE THAT "THE BOARD WAS CREATED
FOR THE PURPOSE OF USING ITS JUDGMENT AND ITS KNOWLEDGE."  IBID. 

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. LABOR BOARD V. GULLETT GIN CO., 340 U.S. 361.  OF COURSE,
REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7, DEALT WITH A DIFFERENT
SITUATION, AND ITS HOLDING REMAINS UNDISTURBED. 

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.  "THE RELATION OF REMEDY TO POLICY IS PECULIARLY A MATTER FOR
ADMINISTRATIVE COMPETENCE  ...  ."  PHELPS DODGE CORP. V. LABOR BOARD,
SUPRA, 313 U.S., AT 194.  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. 

THAT 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. LABOR BOARD, SUPRA, 313 U.S., AT 200.  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. LABOR BOARD V. GULLETT GIN CO., SUPRA.  WE ASSUME THAT THE
WOOLWORTH FORMULA WILL BE APPLIED IN LIKE MANNER. 

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) SEC. 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. LABOR BOARD, 318 U.S. 253.  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. 

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 LABOR 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 SEC. 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. 

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 SPECIFIC
EXERCISES OF IT. 

WE HOLD THAT THE BOARD'S ORDER IS TO BE ENFORCED.  REVERSED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

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. 

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. 

MR. JUSTICE MINTON, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

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. LABOR BOARD, 311 U.S. 7, AND REAFFIRMED AS LATE AS 1951 IN LABOR
BOARD V. GULLETT GIN CO., 340 U.S. 361.  THE STATUTE WAS THE SAME THEN
AS NOW. 

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. 

IN CONSTRUING THE PERTINENT PROVISIONS OF THE STATUTE IN THIS CASE,
THE COURT SAID: 

"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. 

"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
SEC. 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.' 

"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.  SEE, ALSO, NATIONAL LABOR RELATIONS BOARD V.
PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, 267, 268.  WE ADHERE TO
THAT CONSTRUCTION."  311 U.S. 7, 11-12. 

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. 

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, 274 F. 774, 782; 5 WILLISTON,
CONTRACTS (REV. ED. 1937), SEC. 1358; MCCORMICK ON DAMAGES (1935) SECS.
158, 160. 

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. 

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. 

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; TAFT V. COMMISSIONER, 304 U.S. 351, 357; HARTLEY V.
COMMISSIONER, 295 U.S. 216, 220; STAIRS V. PEASLEE, 18 HOW.  521, 526. 

..END :

















EDELMAN V. CALIFORNIA 344 U.S. 357 


NO. 85.  ARGUED NOVEMBER 19, 1952 - DECIDED JANUARY 12, 1953 -
CERTIORARI DISMISSED. 


CERTIORARI TO REVIEW PETITIONER'S STATE-COURT CONVICTION UNDER A
CALIFORNIA VAGRANCY STATUTE WAS IMPROVIDENTLY GRANTED AND THE WRIT IS
DISMISSED.  PP. 358-362. 

1.  THE CLAIM THAT HIS CONVICTION VIOLATED THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, BECAUSE THE STATUTE WAS VAGUE AND UNCERTAIN,
IS NOT PROPERLY BEFORE THIS COURT WHEN THE CONVICTION WAS AFFIRMED
BELOW BY DEFAULT IN ACCORDANCE WITH STATE LAW.  PP. 358-359. 

2.  THE CLAIM THAT HIS RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT WERE INFRINGED BY DISCRIMINATORY ENFORCEMENT
OF THE VAGRANCY STATUTE WAS DISPOSED OF ON STATE PROCEDURAL GROUNDS AND
CANNOT BE CONSIDERED HERE.  P. 359. 

3.  DENIAL OF HIS MOTION TO RECALL THE REMITTITUR AND VACATE THE
JUDGMENT OF THE APPELLATE COURT RESTED ON AN ADEQUATE STATE GROUND; AND
THE CLAIM THAT THIS DENIAL DEPRIVED HIM OF A HEARING IN THE APPELLATE
COURT CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
CANNOT BE CONSIDERED HERE.  PP. 359-362. 

EDELMAN V. CALIFORNIA. 

CERTIORARI TO THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA
FOR LOS ANGELES COUNTY. 

PETITIONER WAS CONVICTED IN A STATE COURT UNDER A VAGRANCY STATUTE
AND HIS CONVICTION WAS AFFIRMED BY A STATE APPELLATE COURT.  THIS COURT
GRANTED CERTIORARI.  343 U.S. 955.  WRIT DISMISSED, P. 362. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER STANDS CONVICTED UNDER SEC. 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.  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. 

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." 

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, 202 U.S. 275 (1906); MUTUAL LIFE INS.
CO. V. MCGREW, 188 U.S. 291, 308 (1903).  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.  (FN1)  IT FOLLOWS THAT THE QUESTION WHETHER
THE VAGRANCY STATUTE IS INVALID UNDER THE FOURTEENTH AMENDMENT IS NOT
PROPERLY BEFORE US. 

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 THIS DEFENDANT THAT
HAVE NEVER BEEN CHARGED WITH VAGRANCY."  THIS OFFER WAS MADE IN
CONNECTION WITH A SUBPOENA ADDRESSED TO THE LOCAL POLICE RECORDS
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. NORTH CAROLINA, 335 U.S. 806 (1948). 

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. 
(FN2) 

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
OCCASIONED 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.  (FN3) 

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, 93 CAL. APP.
2D 858, 861, 210 P.2D 78, 80 (1949) AND CASES THERE CITED; 23 CALIF. L.
REV.  354.  (FN4)  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, 19 CAL. 2D 488, 122 P.2D
22 (1942), 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 501, 122 P.2D, AT 30.  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, 328
U.S. 211, 214 (1946).  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 COMMISSION V. VAN COTT, 306 U.S. 511 (1939);
MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551 (1940); HERB V. PITCAIRN,
324 U.S. 117 (1945).  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. GEORGIA,
343 U.S. 541 (1952).  IT IS SO ORDERED. 

FN1  SEE PEOPLE V. GARZA, 86 CAL. APP. 97, 260 P. 390 (1927); 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,
SEC. 1253; PEOPLE V. SUKOVITZEN, 67 CAL. APP. 2D 901, 155 P.2D 406
(1945). 

FN2  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. 

FN3  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." 

FN4  SEE PEOPLE V. MCDERMOTT, 97 CAL. 247, 32 P. 7 (1893), 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. 

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. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

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 ALBORI, 95
CAL. APP. 42, 50-51, 272 P. 321, 324-325.  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; COLE V. ARKANSAS, 333 U.S. 196, 201; POWELL
V. ALABAMA, 287 U.S. 45, 68.  (FN1)  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. 

THE COURT RESTS ITS DISMISSAL 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. 
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. 
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; CF. HERB
V. PITCAIRN, 324 U.S. 117.  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. 

SUBSECTION 5 OF SEC. 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.  (FN2)
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:    "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." 

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: 

"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." 

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. 

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: 

"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. NEW YORK, 333 U.S. 507, 509. 

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  ...  ." 

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, 308 U.S. 147, 161, 163. 

FN1  IN COCHRAN V. KANSAS, 316 U.S. 255, 258, WE HELD THAT KANSAS
DENIED COCHRAN EQUAL PROTECTION OF THE LAWS IN REFUSING HIM PRIVILEGES
OF APPEAL IT AFFORDED TO OTHERS.  TO THE SAME EFFECT, DOUD V. UNITED
STATES, 340 U.S. 206. 

FN2  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. NEW JERSEY, 306 U.S. 451. 
..END :



















FEDERAL TRADE COMMISSION V. MINNEAPOLIS-HONEYWELL REGULATOR CO. 344 U.S.
206 


NO. 11.  ARGUED OCTOBER 15-16, 1952 - DECIDED DECEMBER 22, 1952 - WRIT
OF CERTIORARI TO REVIEW 191 F.2D 786 DISMISSED. 


THE COURT OF APPEALS ENTERED A JUDGMENT REVERSING THE FIRST OF THREE
PARTS OF A CEASE AND DESIST ORDER ISSUED BY THE FEDERAL TRADE
COMMISSION AGAINST RESPONDENT.  AFTER EXPIRATION OF THE PERIOD ALLOWED
FOR A PETITION FOR REHEARING, THE COMMISSION FILED A MEMORANDUM CALLING
ATTENTION TO THE COURT'S FAILURE TO DECREE ENFORCEMENT OF PARTS I AND
II; BUT IT REQUESTED NO ALTERATION OF THE JUDGMENT RELATIVE TO PART
III.  SUBSEQUENTLY, THE COURT OF APPEALS ISSUED A "FINAL DECREE"
REVERSING PART III OF THE ORDER AND DECREEING ENFORCEMENT OF PARTS I
AND II.  MORE THAN 90 DAYS AFTER ENTRY OF THE FIRST JUDGMENT, THE
COMMISSION PETITIONED THIS COURT FOR CERTIORARI TO REVIEW THE JUDGMENT
REVERSING PART III OF ITS ORDER.  HELD:  THE 90-DAY PERIOD ALLOWED BY
28 U.S.C. SEC. 2101(C) FOR FILING A PETITION FOR CERTIORARI BEGAN TO
RUN ON THE DATE OF THE FIRST JUDGMENT, AND THE PETITION WAS NOT
TIMELY.  PP. 207-213. 

(A)  ONLY WHEN THE LOWER COURT CHANGES MATTERS OF SUBSTANCE, OR
RESOLVES A GENUINE AMBIGUITY, IN A JUDGMENT PREVIOUSLY RENDERED SHOULD
THE PERIOD WITHIN WHICH AN APPEAL MUST BE TAKEN OR A PETITION FOR
CERTIORARI FILED BEGIN TO RUN ANEW.  PP. 211-212. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE COURT OF
APPEALS LABELED ITS SECOND ORDER A "FINAL DECREE," WHEREAS THE WORD
"FINAL" WAS MISSING FROM ITS FIRST JUDGMENT.  PP. 212-213. 

(C)  STATUTES WHICH LIMIT THE APPELLATE JURISDICTION OF THIS COURT TO
CASES IN WHICH REVIEW IS SOUGHT WITHIN A PRESCRIBED PERIOD ARE NOT TO
BE APPLIED SO AS TO PERMIT A TOLLING OF THE TIME LIMITATIONS BECAUSE
SOME EVENT OCCURRED IN THE LOWER COURT AFTER JUDGMENT WAS RENDERED
WHICH IS OF NO IMPORT ON THE MATTERS TO BE DEALT WITH ON REVIEW.  P.
213. 

FEDERAL TRADE COMMISSION V. MINNEAPOLIS-HONEYWELL REGULATOR CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

THE COURT OF APPEALS ENTERED A JUDGMENT REVERSING ONE OF THREE PARTS
OF A CEASE AND DESIST ORDER OF THE FEDERAL TRADE COMMISSION.  191 F.2D
786.  LATER IT ENTERED ANOTHER JUDGMENT REVERSING THAT PART AND
DECREEING ENFORCEMENT OF THE OTHER TWO PARTS OF THE ORDER.  ON PETITION
OF THE FEDERAL TRADE COMMISSION, THIS COURT GRANTED CERTIORARI TO
REVIEW THE JUDGMENT REVERSING PART OF ITS ORDER, AND REQUESTED COUNSEL
TO DISCUSS THE "TIMELINESS OF THE APPLICATION FOR THE WRIT."  342 U.S.
940.  WRIT DISMISSED, P. 213. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE INITIAL QUESTION IN THIS CASE IS ONE OF JURISDICTION - WHETHER
THE PETITION FOR CERTIORARI WAS FILED WITHIN THE PERIOD ALLOWED BY
LAW.  (FN1)  WE HOLD THAT IT WAS NOT. 

THE CAUSE GROWS OUT OF A PROCEEDING INITIATED BY PETITIONER, THE
FEDERAL TRADE COMMISSION, IN 1943.  AT THAT TIME, THE COMMISSION ISSUED
A THREE-COUNT COMPLAINT AGAINST RESPONDENT.  COUNT I CHARGED A
VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT; (FN2) COUNT II
CHARGED A VIOLATION OF SEC. 3 OF THE CLAYTON ACT; (FN3) COUNT III DEALT
WITH AN ALLEGED VIOLATION OF SEC. 2(A) OF THE CLAYTON ACT AS AMENDED BY
THE ROBINSON-PATMAN ACT.  (FN4)  A PROTRACTED ADMINISTRATIVE PROCEEDING
FOLLOWED.  THE COMMISSION FINALLY DETERMINED AGAINST RESPONDENT ON ALL
THREE COUNTS, AND IT ISSUED A CEASE AND DESIST ORDER, IN THREE PARTS,
COVERING EACH OF THE THREE VIOLATIONS. 

RESPONDENT PETITIONED THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT TO
REVIEW AND SET ASIDE THIS ORDER.  THE COMMISSION SOUGHT ENFORCEMENT OF
ALL PARTS OF ITS ORDER IN A CROSS-PETITION. 

RESPONDENT ABANDONED COMPLETELY ITS ATTACK ON PARTS I AND II OF THE
ORDER.  IN BRIEFS AND IN ORAL ARGUMENT, RESPONDENT MADE IT CLEAR THAT
THE LEGALITY OF PART III WAS THE ONLY CONTESTED ISSUE BEFORE THE COURT
OF APPEALS.  NEITHER PARTY BRIEFED OR ARGUED ANY QUESTION ARISING OUT
OF PARTS I AND II. 

ON JULY 5, 1951, THE COURT OF APPEALS ANNOUNCED ITS DECISION.  THE
OPINION STATED THAT SINCE RESPONDENT DID NOT "CHALLENGE PARTS I AND II
OF THE ORDER BASED ON THE FIRST TWO COUNTS OF THE COMPLAINT WE SHALL
MAKE NO FURTHER REFERENCE TO THEM."  THE COURT THEN WENT ON TO HOLD
THAT PART III OF PETITIONER'S ORDER COULD NOT BE SUSTAINED BY
SUBSTANTIAL EVIDENCE AND SHOULD BE REVERSED.  191 F.2D 786.  ON THE
SAME DAY, THE COURT ENTERED ITS JUDGMENT, THE PERTINENT PORTION READING
AS FOLLOWS: 

"  ...  IT IS ORDERED AND ADJUDGED BY THIS COURT THAT PART III OF THE
DECISION OF THE FEDERAL TRADE COMMISSION ENTERED IN THIS CAUSE ON
JANUARY 14, 1948, BE, AND THE SAME IS HEREBY, REVERSED, AND COUNT III
OF THE COMPLAINT UPON WHICH IT IS BASED BE, AND THE SAME IS HEREBY
DISMISSED." 

THE COURT OF APPEALS REQUIRES PETITIONS FOR REHEARING TO BE FILED
"WITHIN 15 DAYS AFTER ENTRY OF JUDGMENT."  THE COMMISSION FILED NO SUCH
PETITION.  ON AUGUST 21, 1951, LONG AFTER THE EXPIRATION OF THIS 15-DAY
PERIOD, AND AFTER A CERTIFIED COPY OF SAID JUDGMENT, IN LIEU OF
MANDATE, WAS ISSUED, THE COMMISSION FILED A MEMORANDUM WITH THE COURT
WHICH READS IN PART AS FOLLOWS: 

"ON JULY 5, 1951 THE COURT ENTERED ITS OPINION AND JUDGMENT REVERSING
PART III OF THE DECISION OF THE FEDERAL TRADE COMMISSION DATED JANUARY
14, 1948 AND DISMISSING COUNT III OF THE COMPLAINT UPON WHICH IT IS
BASED.  NO DISPOSITION HAS BEEN MADE OF THE CROSS-PETITION FILED BY THE
COMMISSION FOR AFFIRMANCE AND ENFORCEMENT OF THE ENTIRE DECISION.  THE
COMMISSION TAKES THE POSITION THAT ITS CROSS-PETITION SHOULD BE IN PART
SUSTAINED, I.E., TO THE EXTENT THAT THE COURT SHOULD MAKE AND ENTER
HEREIN A DECREE AFFIRMING PARTS I AND II OF THE COMMISSION'S ORDER TO
CEASE AND DESIST AND COMMANDING MINNEAPOLIS-HONEYWELL REGULATOR COMPANY
TO OBEY THE SAME AND COMPLY THEREWITH  ...  . 

     *         *         *         *         * 

"11.  IN ITS BRIEFS FILED HEREIN THE PETITIONER ABANDONED ITS ATTACK
UPON PARTS I AND II OF THE ORDER AND CHALLENGED ONLY THE VALIDITY OF
PART III OF THE ORDER (SEE PAGE 1 OF PETITIONER'S BRIEF DATED MARCH 15,
1951).  THUS, PETITIONER CONCEDES THE VALIDITY OF PARTS I AND II OF THE
ORDER AND DOES NOT CONTEST THE PRAYER OF THE COMMISSION'S CROSS
PETITION AND BRIEF WITH RESPECT TO THE AFFIRMANCE AND ENFORCEMENT OF
PARTS I AND II OF THE ORDER." 

CLEARLY, BY THIS MEMORANDUM THE COMMISSION SOUGHT NO ALTERATION OF
THE JUDGMENT RELATIVE TO PART III; IN FACT, IT ACKNOWLEDGED THE ENTRY
OF JUDGMENT REVERSING PART III ON JULY 5, 1951.  IT DID NOT EVEN CLAIM
IT TO BE A PETITION FOR REHEARING.  IT WAS SUBMITTED THAT PARTS I AND
II OF THE ORDER WERE UNCONTESTED, AND "IN CONCLUSION  ...  SUBMITTED
THAT THE COURT SHOULD MAKE AND ENTER  ...  A DECREE AFFIRMING AND
ENFORCING PARTS I AND II OF THE COMMISSION'S ORDER TO CEASE AND
DESIST." 

ON SEPTEMBER 18, 1951, THE COURT OF APPEALS ISSUED WHAT IT CALLED ITS
"FINAL DECREE."  AGAIN THE COURT "ORDERED, ADJUDGED AND DECREED" THAT
PART III OF THE COMMISSION'S ORDER "IS HEREBY REVERSED AND COUNT III OF
THE COMPLAINT UPON WHICH IT IS BASED BE AND THE SAME IS HEREBY
DISMISSED."  THE COURT THEN WENT ON TO AFFIRM PARTS I AND II, AND IT
ENTERED A JUDGMENT PROVIDING FOR THEIR ENFORCEMENT, AFTER RECITING
AGAIN THAT THERE WAS NO CONTEST OVER THIS PHASE OF THE ORDER. 

ON DECEMBER 14, 1951, THE COMMISSION FILED ITS PETITION FOR
CERTIORARI.  OBVIOUSLY, THE PETITION WAS OUT OF TIME UNLESS THE NINETY
DAY FILING PERIOD BEGAN TO RUN ANEW FROM THE SECOND JUDGMENT ENTERED ON
SEPTEMBER 18, 1951.  IN OUR ORDER GRANTING CERTIORARI, 342 U.S. 940, WE
ASKED COUNSEL TO DISCUSS THE "TIMELINESS OF THE APPLICATION FOR THE
WRIT." 

PETITIONER REFERS US TO CASES WHICH HAVE HELD THAT WHEN A COURT
CONSIDERS ON ITS MERITS AN UNTIMELY PETITION FOR A REHEARING, OR AN
UNTIMELY MOTION TO AMEND MATTERS OF SUBSTANCE IN A JUDGMENT, THE TIME
FOR APPEAL MAY BEGIN TO RUN ANEW FROM THE DATE ON WHICH THE COURT
DISPOSED OF THE UNTIMELY APPLICATION.  (FN5) 

PETITIONER APPARENTLY WOULD EQUATE ITS MEMORANDUM OF AUGUST 21, 1951,
WITH AN UNTIMELY PETITION FOR A REHEARING AFFECTING PART III.  BUT
CERTAINLY ITS LANGUAGE AND EVERY INFERENCE THEREIN IS TO THE CONTRARY. 
WHEN PETITIONER FILED ITS MEMORANDUM, THE TIME FOR SEEKING A REHEARING
HAD LONG SINCE EXPIRED. 

MOREOVER, THE MEMORANDUM WAS LABELED NEITHER AS A PETITION FOR A
REHEARING NOR AS A MOTION TO AMEND THE PREVIOUS JUDGMENT, AND IN NO
MANNER DID IT PURPORT TO SEEK SUCH RELIEF.  ON THE CONTRARY, THE
COMMISSION INDICATED THAT IT WAS QUITE CONTENT TO LET THE COURT OF
APPEALS' DECISION OF JULY 5 STAND UNDISTURBED.  SINCE WE CANNOT TREAT
THE MEMORANDUM OF AUGUST 21 AS PETITIONER WOULD HAVE US TREAT IT, WE
CANNOT HOLD THAT THE TIME FOR FILING A PETITION FOR CERTIORARI WAS
ENLARGED SIMPLY BECAUSE THIS PAPER MAY HAVE PROMPTED THE COURT BELOW TO
TAKE SOME FURTHER ACTION WHICH HAD NO EFFECT ON THE MERITS OF THE
DECISION THAT WE ARE NOW ASKED TO REVIEW IN THE PETITION FOR
CERTIORARI. 

PETITIONER TELLS US THAT THE APPLICATION MUST BE DEEMED TO BE IN TIME
BECAUSE "WHEN A COURT ACTUALLY CHANGES ITS JUDGMENT, THE TIME TO APPEAL
OR PETITION BEGINS TO RUN ANEW IRRESPECTIVE OF WHETHER A PETITION FOR
REHEARING HAS BEEN FILED."  (FN6)  WE THINK PETITIONER'S INTERPRETATION
OF OUR DECISIONS IS TOO LIBERAL. 

WHILE IT MAY BE TRUE THAT THE COURT OF APPEALS HAD THE POWER TO
SUPERSEDE THE JUDGMENT OF JULY 5 WITH A NEW ONE, (FN7) IT IS ALSO TRUE,
AS THAT COURT ITSELF HAS RECOGNIZED, THAT THE TIME WITHIN WHICH A
LOSING PARTY MUST SEEK REVIEW CANNOT BE ENLARGED JUST BECAUSE THE LOWER
COURT IN ITS DISCRETION THINKS IT SHOULD BE ENLARGED.  (FN8)  THUS, THE
MERE FACT THAT A JUDGMENT PREVIOUSLY ENTERED HAS BEEN REENTERED OR
REVISED IN AN IMMATERIAL WAY DOES NOT TOLL THE TIME WITHIN WHICH REVIEW
MUST BE SOUGHT.  (FN9)  ONLY WHEN THE LOWER COURT CHANGES MATTERS OF
SUBSTANCE, (FN10) OR RESOLVES A GENUINE AMBIGUITY, (FN11) IN A JUDGMENT
PREVIOUSLY RENDERED SHOULD THE PERIOD WITHIN WHICH AN APPEAL MUST BE
TAKEN OR A PETITION FOR CERTIORARI FILED BEGIN TO RUN ANEW.  THE TEST
IS A PRACTICAL ONE.  THE QUESTION IS WHETHER THE LOWER COURT, IN ITS
SECOND ORDER, HAS DISTURBED OR REVISED LEGAL RIGHTS AND OBLIGATIONS
WHICH, BY ITS PRIOR JUDGMENT, HAD BEEN PLAINLY AND PROPERLY SETTLED
WITH FINALITY.  (FN12) 

THE JUDGMENT OF SEPTEMBER 18, WHICH PETITIONER NOW SEEKS TO HAVE US
REVIEW, DOES NOT MEET THIS TEST.  IT REITERATED, WITHOUT CHANGE,
EVERYTHING WHICH HAD BEEN DECIDED ON JULY 5.  SINCE THE ONE CONTROVERSY
BETWEEN THE PARTIES RELATED ONLY TO THE MATTERS WHICH HAD BEEN
ADJUDICATED ON JULY 5, WE CANNOT ASCRIBE ANY SIGNIFICANCE, AS FAR AS
TIMELINESS IS CONCERNED, TO THE LATER JUDGMENT.  (FN13) 

PETITIONER PUTS GREAT EMPHASIS ON THE FACT THAT THE JUDGMENT OF
SEPTEMBER 18 WAS LABELED A "FINAL DECREE" BY THE COURT OF APPEALS,
WHEREAS THE WORD "FINAL" WAS MISSING FROM THE JUDGMENT ENTERED ON JULY
5.  BUT WE THINK THE QUESTION OF WHETHER THE TIME FOR PETITIONING FOR
CERTIORARI WAS TO BE ENLARGED CANNOT TURN ON THE ADJECTIVE WHICH THE
COURT BELOW CHOSE TO USE IN THE CAPTION OF ITS SECOND JUDGMENT. 
INDEED, THE JUDGMENT OF JULY 5 WAS FOR ALL PURPOSES FINAL.  IT PUT TO
REST THE QUESTION WHICH THE PARTIES HAD LITIGATED IN THE COURT OF
APPEALS.  IT WAS NEITHER "TENTATIVE, INFORMAL NOR INCOMPLETE."  (FN14)
CONSEQUENTLY, WE CANNOT ACCEPT THE COMMISSION'S VIEW THAT A DECISION
AGAINST IT ON THE TIME QUESTION WILL CONSTITUTE AN INVITATION TO OTHER
LITIGANTS TO SEEK PIECEMEAL REVIEW IN THIS COURT IN THE FUTURE. 

THUS, WHILE WE DO NOT MEAN TO ENCOURAGE APPLICATIONS FOR PIECEMEAL
REVIEW BY TODAY'S DECISION, WE DO MEAN TO ENCOURAGE APPLICANTS TO THIS
COURT TO TAKE HEED OF ANOTHER PRINCIPLE - THE PRINCIPLE THAT LITIGATION
MUST AT SOME DEFINITE POINT BE BROUGHT TO AN END.  (FN15)  IT IS A
PRINCIPLE REFLECTED IN THE STATUTES WHICH LIMIT OUR APPELLATE
JURISDICTION TO THOSE CASES WHERE REVIEW IS SOUGHT WITHIN A PRESCRIBED
PERIOD.  THOSE STATUTES ARE NOT TO BE APPLIED SO AS TO PERMIT A TOLLING
OF THEIR TIME LIMITATIONS BECAUSE SOME EVENT OCCURRED IN THE LOWER
COURT AFTER JUDGMENT WAS RENDERED WHICH IS OF NO IMPORT TO THE MATTERS
TO BE DEALT WITH ON REVIEW. 

ACCORDINGLY, THE WRIT OF CERTIORARI IS DISMISSED. 

FN1  28 U.S.C. SEC. 2101(C). 

FN2  38 STAT. 719, 15 U.S.C. SEC. 45. 

FN3  38 STAT. 731, 15 U.S.C. SEC. 14. 

FN4  38 STAT. 730, AS AMENDED, 49 STAT. 1526, 15 U.S.C. SEC. 13(A). 

FN5  PFISTER V. FINANCE CORP., 317 U.S. 144, 149 (1942); BOWMAN V.
LOPERENA, 311 U.S. 262, 266 (1940); WAYNE UNITED GAS CO. V. OWENS
ILLINOIS CO., 300 U.S. 131, 137-138 (1937). 

FN6  BRIEF FOR PETITIONER, P. 43. 

FN7  28 U.S.C. SEC. 452; SEE ZIMMERN V. UNITED STATES, 298 U.S. 167
(1936). 

FN8  SEE FINE V. PARAMOUNT PICTURES, 181 F.2D 300, 304 (1950). 

FN9  DEPARTMENT OF BANKING V. PINK, 317 U.S. 264 (1942); TOLEDO SCALE
CO. V. COMPUTING SCALE CO., 261 U.S. 399 (1923); CREDIT CO., LTD. V.
ARKANSAS CENTRAL R. CO., 128 U.S. 258 (1888). 

FN10  SEE ZIMMERN V. UNITED STATES, 298 U.S. 167, 169 (1936); COMPARE
DEPARTMENT OF BANKING V. PINK, SUPRA. 

FN11  COMPARE FEDERAL POWER COMMISSION V. IDAHO POWER CO., 344 U.S.
17 (1952). 

FN12  COMPARE RUBBER CO. V. GOODYEAR, 6 WALL.  153 (1868)(APPEAL
ALLOWED FROM A SECOND DECREE, RESTATING MOST PROVISIONS OF THE FIRST
BECAUSE THE FIRST DECREE, AT THE TIME OF ENTRY, WAS ONLY REGARDED BY
THE PARTIES AND THE COURT AS TENTATIVE); MEMPHIS V. BROWN, 94 U.S. 715
(1877)(APPEAL ALLOWED FROM SECOND JUDGMENT ON THE GROUND THAT THE
SECOND MADE MATERIAL CHANGES IN THE FIRST).  SEE UNITED STATES V. HARK,
320 U.S. 531, 533-534 (1944); HILL V. HAWES, 320 U.S. 520, 523 (1944). 

FN13  THE SUGGESTION IS MADE THAT THE SEPTEMBER 18 JUDGMENT INJECTED
A NEW CONTROVERSY INTO THE LITIGATION - THE QUESTION OF WHETHER THE
COURT OF APPEALS HAD THE POWER TO AFFIRM AND ENFORCE THE COMMISSION'S
ORDER AFTER IT HAD CROSS-PETITIONED FOR SUCH RELIEF.  CF.  FEDERAL
TRADE COMMISSION V. RUBEROID CO., 343 U.S. 470 (1952).  BUT IF THE
RESPONDENT HAD SOUGHT TO CONTEST THAT ISSUE, IT COULD HAVE DONE SO FROM
THE START, BY RAISING OBJECTIONS TO ENFORCEMENT OF ALL PARTS OF THE
COMMISSION'S CROSS-PETITION.  INSTEAD, RESPONDENT REFUSED TO CONTEST
THESE PARTS OF THE COMMISSION'S ORDER.  HAVING DONE SO, IT REMOVED THE
QUESTION INVOLVED IN THE RUBEROID CASE FROM THIS CASE. 

FN14  SEE DICKINSON V. PETROLEUM CONVERSION CORP., 338 U.S. 507, 514
(1950). 

FN15  SEE MATTON STEAMBOAT CO. V. MURPHY, 319 U.S. 412, 415 (1943). 

MR. JUSTICE BLACK, DISSENTING. 

THE END RESULT OF WHAT THE COURT DOES TODAY IS TO LEAVE STANDING A
COURT OF APPEALS DECREE WHICH I THINK IS SO CLEARLY WRONG THAT IT COULD
WELL BE REVERSED WITHOUT ARGUMENT.  THE DECREE SET ASIDE AN ORDER OF
THE FEDERAL TRADE COMMISSION DIRECTING MINNEAPOLIS-HONEYWELL TO STOP
VIOLATING SEC. 2(A) OF THE ROBINSON-PATMAN ACT BY SELLING OIL BURNER
CONTROLS TO SOME CUSTOMERS CHEAPER THAN TO OTHERS.  THE COURT OF
APPEALS NOT ONLY SET ASIDE THE COMMISSION'S ORDER AS PERMITTED UNDER
SOME CIRCUMSTANCES.  IT WENT MUCH FURTHER AND ORDERED THE COMMISSION TO
DISMISS COUNT III OF THE COMPLAINT AGAINST MINNEAPOLIS-HONEYWELL.  IN
DOING SO THE COURT OF APPEALS INVADED AN AREA WHICH CONGRESS HAS MADE
THE EXCLUSIVE CONCERN OF THE FEDERAL TRADE COMMISSION.  SEE FEDERAL
TRADE COMMISSION V. MORTON SALT CO., 334 U.S. 37, 55; FEDERAL POWER
COMMISSION V. IDAHO POWER CO., 344 U.S. 17, 20; FEDERAL COMMUNICATIONS
COMMISSION V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 145-146. 
MOREOVER, THE COURT OF APPEALS HELD THAT THERE WAS NO EVIDENCE AT ALL
TO SUBSTANTIATE THE COMMISSION FINDING THAT A QUANTITY DISCOUNT PRICING
SYSTEM OF MINNEAPOLIS-HONEYWELL RESULTED IN PRICE DISCRIMINATIONS THAT
VIOLATED SEC. 2(A) OF THE ROBINSON-PATMAN ACT.  BUT THERE WAS EVIDENCE
BEFORE THE COMMISSION THAT SOME CUSTOMERS OF MINNEAPOLIS-HONEYWELL WERE
GIVEN SUBSTANTIALLY BIGGER DISCOUNTS ON PURCHASES THAN THOSE GIVEN
THEIR COMPETITORS.  AND THE COMMISSION FOUND THAT THESE VARIATIONS WERE
NOT JUSTIFIED BY ANY DIFFERENCES IN COSTS OF MANUFACTURE, SALE OR
DELIVERY.  WE HAVE EMPHASIZED THAT SUCH A SHOWING AMPLY SUPPORTS A
COMMISSION CEASE AND DESIST ORDER.  FEDERAL TRADE COMMISSION V. MORTON
SALT CO., 334 U.S. 37, 47.  THE COURT OF APPEALS HERE FAILED TO FOLLOW
OUR HOLDING IN THE MORTON SALT CASE.  FOR THIS REASON ALSO IT SHOULD BE
REVERSED. 

I THINK THE FOLLOWING FACTS SHOW THAT THE PETITION FOR CERTIORARI
HERE WAS FILED IN TIME.  THE COURT OF APPEALS WAS PETITIONED BY
MINNEAPOLIS-HONEYWELL TO REVIEW AND SET ASIDE A TRADE COMMISSION ORDER
IN ITS ENTIRETY.  LATER MINNEAPOLIS-HONEYWELL APPARENTLY CONCEDED
VALIDITY OF PART OF THE ORDER AND THE COURT'S FIRST DECREE OF JULY 5,
1951, FAILED TO PASS ON ALL THE PROVISIONS OF THE COMMISSION'S ORDER. 
(FN1)  THE COMMISSION HAD NINETY DAYS TO ASK THAT WE REVIEW THAT
PARTIAL ORDER IF IT WAS A "FINAL" ONE.  WITHIN THAT NINETY DAYS, ON
AUGUST 21, 1951, THE COMMISSION ASKED THE COURT OF APPEALS TO PASS ON
THE REMAINDER OF THE ORDER.  IN RESPONSE A NEW AND EXPANDED DECREE OF
THE COURT OF APPEALS CAME DOWN SEPTEMBER 18, 1951, MARKED "FINAL
DECREE."  DECEMBER 14, 1951, WITHIN NINETY DAYS AFTER RENDITION OF THIS
"FINAL DECREE," THE COMMISSION FILED HERE ITS PETITION FOR CERTIORARI
WHICH THE COURT NOW DISMISSES. 

I THINK THAT NO STATUTE, PRECEDENT OR REASON RELIED ON BY THE COURT
REQUIRES DISMISSAL OF THIS CAUSE.  OF COURSE APPEALABILITY OF A
JUDGMENT DEPENDS ON ITS BEING "FINAL" IN THE LEGALISTIC SENSE.  BUT
THERE IS NO MORE AMBIGUOUS WORD IN ALL THE LEGAL LEXICON.  (FN2)  THE
COURT OF APPEALS THOUGHT ITS SECOND NOT ITS FIRST DECREE WAS "FINAL." 
COUNSEL FOR THE COMMISSION EVIDENTLY BELIEVED THE SECOND JUDGMENT WAS
THE "FINAL" ONE.  I AM CONFIDENT MANY LAWYERS WOULD HAVE THOUGHT THE
SAME UNDER THIS COURT'S FORMER CASES.  SO I WOULD HAVE VIEWED THE
SECOND JUDGMENT BEFORE TODAY'S HOLDING.  FORMER CASES WOULD HAVE
POINTED STRONGLY TO REJECTION OF APPEAL FROM THE INCOMPLETE FIRST
DECREE AS AN ATTEMPTED "PIECEMEAL" REVIEW.  (FN3) 

THE MAJORITY ADVANCES LOGICAL AND RATIONAL GROUNDS FOR ITS CONCLUSION
THAT THE FIRST JUDGMENT RATHER THAN THE SECOND ONE WAS "FINAL."  THAT
THE SECOND JUDGMENT WAS "FINAL," LEGALISTICALLY SPEAKING, IS EQUALLY
SUPPORTABLE BY LOGIC, REASON AND PRECEDENT, IF NOT MORE SO.  (FN4)  BUT
IN ARGUING OVER "FINALITY" WE SHOULD NOT IGNORE THE FACT THAT CONGRESS
HAS DECLARED THAT THIS TYPE OF PROCEEDING SHOULD BE REVIEWABLE BOTH IN
THE COURT OF APPEALS AND HERE.  WE FRUSTRATE THAT DECLARATION WHEN
REVIEW IS DENIED A LITIGANT BECAUSE OF HIS FAILURE TO GUESS RIGHT WHEN
CONFRONTED IN AUGUST 1951 WITH A PUZZLE, THE ANSWER TO WHICH NO ONE
COULD KNOW UNTIL TODAY. 

IN PRIOR CASES CITED IN THE COURT'S OPINION THIS COURT HAS FOUND WAYS
TO GRANT REVIEW TO LITIGANTS BEDEVILED AND CONFUSED BY THE JUDICIALLY
CREATED FOG OF "FINALITY."  (FN5)  IN THOSE PRIOR CASES THE COURT
RECOGNIZED THE VAGUENESS OF THE FINALITY RULE AND REFUSED TO THROW OUT
OF COURT LITIGANTS WHO HAD ACTED BONA FIDE.  IT IS UNFORTUNATE THAT THE
COURT TODAY FAILS TO UTILIZE THIS SAME KIND OF JUDICIAL INGENUITY TO
AFFORD THIS LITIGANT THE REVIEW CONGRESS SAW FIT TO PROVIDE IN THE
PUBLIC INTEREST. 

THE PROCEEDINGS AGAINST MINNEAPOLIS-HONEYWELL BEGAN BEFORE THE
COMMISSION NINE YEARS AGO.  SIXTEEN HUNDRED PAGES OF EVIDENCE WERE PUT
ON THE RECORD.  IT ALL GOES TO NOUGHT APPARENTLY BECAUSE COMMISSION
COUNSEL LACKED SUFFICIENT CLAIRVOYANCE TO ANTICIPATE THAT THIS COURT
WOULD HOLD THAT THE JULY JUDGMENT RATHER THAN THE ONE IN SEPTEMBER WAS
FINAL.  RULES OF PRACTICE AND PROCEDURE SHOULD BE USED TO PROMOTE THE
ENDS OF JUSTICE, NOT TO DEFEAT THEM.  (FN6) 

FN1  SEE, E.G., "THOUGH THE MERITS OF THE CAUSE MAY HAVE BEEN
SUBSTANTIALLY DECIDED, WHILE ANY THING, THOUGH MERELY FORMAL, REMAINS
TO BE DONE, THIS COURT CANNOT PASS UPON THE SUBJECT.  IF FROM ANY
INTERMEDIATE STAGE IN THE PROCEEDINGS AN APPEAL MIGHT BE TAKEN TO THE
SUPREME COURT, THE APPEAL MIGHT BE REPEATED TO THE GREAT OPPRESSION OF
THE PARTIES."  MR. CHIEF JUSTICE MARSHALL SPEAKING FOR THE COURT IN
LIFE & FIRE INS. CO. OF NEW YORK V. ADAMS, 9 PET. 573, 602 (1835).  "WE
THINK THAT THE DECREE IS NOT A FINAL DECREE, AND THAT THIS COURT HAS NO
JURISDICTION OF THE APPEAL.  THE DECREE IS NOT FINAL, BECAUSE IT DOES
NOT DISPOSE OF THE ENTIRE CONTROVERSY BETWEEN THE PARTIES."  KEYSTONE
IRON CO. V. MARTIN, 132 U.S. 91, 93 (1889).  "IT IS THE SETTLED
PRACTICE OF THIS COURT, AND THE SAME IN THE KING'S BENCH IN ENGLAND,
THAT THE WRIT WILL NOT LIE UNTIL THE WHOLE OF THE MATTERS IN
CONTROVERSY IN THE SUIT BELOW ARE DISPOSED OF  ...  .  THE CAUSE IS NOT
TO BE SENT UP IN FRAGMENTS."  HOLCOMBE V. MCKUSICK, 20 HOW.  552, 554
(1858). 

FN2  "PROBABLY NO QUESTION OF EQUITY PRACTICE HAS BEEN THE SUBJECT OF
MORE FREQUENT DISCUSSION IN THIS COURT THAN THE FINALITY OF DECREES
...  .  THE CASES, IT MUST BE CONCEDED, ARE NOT ALTOGETHER
HARMONIOUS."  MCGOURKEY V. TOLEDO & OHIO R. CO., 146 U.S. 536, 544
545.  CF. DICKINSON V. PETROLEUM CONVERSION CORP., 338 U.S. 507, 511. 

FN3  A MULTITUDE OF CASES WOULD HAVE SUPPORTED SUCH A BELIEF ON THE
PART OF COMMISSION COUNSEL.  SEE, E.G., NOTE 1 AND THE FOLLOWING:  "BUT
PIECEMEAL APPEALS HAVE NEVER BEEN ENCOURAGED."  MORGANTOWN V. ROYAL
INS. CO., 337 U.S. 254, 258.  "CONGRESS FROM THE VERY BEGINNING HAS, BY
FORBIDDING PIECEMEAL DISPOSITION ON APPEAL OF WHAT FOR PRACTICAL
PURPOSES IS A SINGLE CONTROVERSY, SET ITSELF AGAINST ENFEEBLING
JUDICIAL ADMINISTRATION."  COBBLEDICK V. UNITED STATES, 309 U.S. 323,
325.  "THE FOUNDATION OF THIS POLICY IS NOT IN MERELY TECHNICAL
CONCEPTIONS OF 'FINALITY.'  IT IS ONE AGAINST PIECEMEAL LITIGATION. 
'THE CASE IS NOT TO BE SENT UP IN FRAGMENTS  ...  .'  LUXTON V. NORTH
RIVER BRIDGE CO., 147 U.S. 337, 341."  CATLIN V. UNITED STATES, 324
U.S. 229, 233-234. 

FN4  "UPON THESE FACTS WE CANNOT DOUBT THAT THE ENTRY OF THE 28TH OF
NOVEMBER WAS INTENDED AS AN ORDER SETTLING THE TERMS OF THE DECREE TO
BE ENTERED THEREAFTER; AND THAT THE ENTRY MADE ON THE 5TH OF DECEMBER
WAS REGARDED BOTH BY THE COURT AND THE COUNSEL AS THE FINAL DECREE IN
THE CAUSE. 

"WE DO NOT QUESTION THAT THE FIRST ENTRY HAD ALL THE ESSENTIAL
ELEMENTS OF A FINAL DECREE, AND IF IT HAD BEEN FOLLOWED BY NO OTHER
ACTION OF THE COURT, MIGHT VERY PROPERLY HAVE BEEN TREATED AS SUCH. 
BUT WE MUST BE GOVERNED BY THE OBVIOUS INTENT OF THE CIRCUIT COURT,
APPARENT ON THE FACE OF THE PROCEEDINGS.  WE MUST HOLD, THEREFORE, THE
DECREE OF THE 5TH OF DECEMBER TO BE THE FINAL DECREE."  RUBBER COMPANY
V. GOODYEAR, 6 WALL.  153, 155-156 (1868).  SEE ALSO FEDERAL POWER
COMMISSION V. IDAHO POWER CO., 344 U.S. 17, 20-21; HILL V. HAWES, 320
U.S. 520; UNITED STATES V. HARK, 320 U.S. 531; ZIMMERN V. UNITED
STATES, 298 U.S. 167; MEMPHIS V. BROWN, 94 U.S. 715. 

FN5  SEE CASES CITED IN NOTE 4. 

FN6  HORMEL V. HELVERING, 312 U.S. 552, 557.  SEE ALSO MATY V.
GRASSELLI CHEMICAL CO., 303 U.S. 197, 200-201.  CF. HAZEL-ATLAS CO. V.
HARTFORD-EMPIRE CO., 322 U.S. 238. 

MR. JUSTICE DOUGLAS, DISSENTING. 

WHILE I DO NOT BELIEVE THE MERITS OF THE CASE ARE AS CLEAR AS MR.
JUSTICE BLACK INDICATES, I JOIN IN THE PARTS OF HIS OPINION WHICH DEAL
WITH THE QUESTION WHETHER THE PETITION FOR CERTIORARI WAS TIMELY UNDER
28 U.S.C. SEC. 2101(C). 
..END :




















UNITED STATES V. UNIVERSAL C.I.T. CREDIT CORPORATION 344 U.S. 218 


NO. 47.  ARGUED NOVEMBER 18-19, 1952 - DECIDED DECEMBER 22, 1952 - 102
F. SUPP. 179, AFFIRMED. 


1.  IN AN INFORMATION UNDER SECS. 15 AND 16(A) OF THE FAIR LABOR
STANDARDS ACT, APPELLEES WERE CHARGED ON 32 COUNTS WITH VIOLATING THE
MINIMUM WAGE, OVERTIME AND RECORD-KEEPING PROVISIONS OF THE ACT.  THE
DISTRICT COURT DISMISSED ALL BUT THREE COUNTS, ONE FOR EACH SECTION
VIOLATED.  HELD:  THE ORDER OF THE DISTRICT COURT IS AFFIRMED WITHOUT
PREJUDICE TO AMENDMENT OF THE INFORMATION.  PP. 218-226. 

2.  SECTION 15 OF THE FAIR LABOR STANDARDS ACT PENALIZES A COURSE OF
CONDUCT AND IS NOT TO BE READ AS ENABLING THE PROSECUTOR TO TREAT AS A
SEPARATE OFFENSE EACH BREACH OF THE STATUTORY DUTY OWED TO A SINGLE
EMPLOYEE DURING ANY WORKWEEK.  PP. 221-226. 

UNITED STATES V. UNIVERSAL C.I.T. CREDIT CORPORATION ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

THE DISTRICT COURT DISMISSED ALL BUT THREE COUNTS OF A 32-COUNT
INFORMATION UNDER SECS. 15 AND 16(A) OF THE FAIR LABOR STANDARDS ACT. 
102 F. SUPP. 179.  ON APPEAL TO THIS COURT, UNDER 18 U.S.C. SEC. 3731,
AFFIRMED, P. 226. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES ON AN INFORMATION UNDER SECS. 15 AND 16(A) OF THE
FAIR LABOR STANDARDS ACT, 52 STAT. 1060, 1068-1069, AS AMENDED, 63
STAT. 910, 919, 29 U.S.C. SECS. 215, 216(A), CHARGING THE DEFENDANT
CORPORATION, ITS DIVISION OPERATIONS MANAGER AND TWO SUCCESSIVE BRANCH
MANAGERS WITH VIOLATIONS OF THE MINIMUM WAGE, OVERTIME, AND RECORD
KEEPING PROVISIONS OF THE ACT.  (FN1) THIRTY-TWO COUNTS WERE LAID:  SIX
FOR FAILURE UNDER SEC. 6 OF THE ACT TO PAY MINIMUM WAGES, TWENTY FOR
VIOLATION OF THE OVERTIME PROVISIONS OF SEC. 7, AND SIX FOR FAILURE TO
COMPLY WITH THE REQUIREMENTS FOR RECORD-KEEPING UNDER SEC. 11.  COUNTS
1-6 CHARGE MINIMUM WAGE VIOLATIONS IN SIX SEPARATE WEEKS, ONE PER WEEK,
BUT ONLY AS TO ONE EMPLOYEE IN ANY ONE WEEK AND ONLY AS TO THREE
EMPLOYEES IN ALL.  COUNTS 7-26 CHARGE OVERTIME VIOLATIONS IN TWENTY
SEPARATE WEEKS, ONE PER WEEK.  A TOTAL OF ELEVEN EMPLOYEES ARE
INVOLVED, TWO VIOLATIONS HAVING BEEN CHARGED AS TO EACH OF NINE
EMPLOYEES.  COUNTS 27-32 CHARGE RECORD-KEEPING VIOLATIONS AS TO FOUR
EMPLOYEES, TWO VIOLATIONS AS TO EACH OF TWO EMPLOYEES BEING CHARGED. 
TIME, TO A MAXIMUM FINE OF $10,000 FOR VIOLATION OF ANY PROVISION OF
SEC. 15, AND WOULD, THE DISTRICT COURT ASSUMED, AUTHORIZE A FINE OF
$320,000 UPON CONVICTION UNDER THIS INFORMATION.  (FN2) 

REJECTING A READING OF SEC. 15 WHEREBY A PROSECUTOR COULD TREAT AS A
SEPARATE OFFENSE EACH BREACH OF THE STATUTORY DUTY OWED TO A SINGLE
EMPLOYEE DURING ANY SINGLE WORKWEEK, (FN3) THE DISTRICT COURT GRANTED
DEFENDANT'S MOTION TO DISMISS ALL BUT THREE COUNTS OF THE INFORMATION. 
THE COURT HELD THAT IT IS A COURSE OF CONDUCT RATHER THAN THE SEPARATE
ITEMS IN SUCH COURSE THAT CONSTITUTES THE PUNISHABLE OFFENSE AND
ORDERED CONSOLIDATION OF THE SEPARATE ACTS SET FORTH IN THE INFORMATION
INTO THREE COUNTS, CHARGING ONE VIOLATION EACH OF SECS. 6, 7 AND 11. 
(FN4)  TO REVIEW THIS DECISION, THE GOVERNMENT BROUGHT THE CASE HERE
UNDER THE CRIMINAL APPEALS ACT, 34 STAT. 1246, 18 U.S.C. SEC. 3731. 

THE PROBLEM OF CONSTRUCTION OF THE CRIMINAL PROVISIONS OF THE FAIR
LABOR STANDARDS ACT IS NOT EASY OF SOLUTION.  WHAT CONGRESS HAS MADE
THE ALLOWABLE UNIT OF PROSECUTION - THE ONLY ISSUE BEFORE US - CANNOT
BE ANSWERED MERELY BY A LITERAL READING OF THE PENALIZING SECTIONS. 
GENERALITIES ABOUT STATUTORY CONSTRUCTION HELP US LITTLE.  THEY ARE NOT
RULES OF LAW BUT MERELY AXIOMS OF EXPERIENCE.  BOSTON SAND CO. V.
UNITED STATES, 278 U.S. 41, 48.  THEY DO NOT SOLVE THE SPECIAL
DIFFICULTIES IN CONSTRUING A PARTICULAR STATUTE.  THE VARIABLES RENDER
EVERY PROBLEM OF STATUTORY CONSTRUCTION UNIQUE.  SEE UNITED STATES V.
JIN FUEY MOY, 241 U.S. 394, 402.  FOR THAT REASON WE MAY UTILIZE, IN
CONSTRUING A STATUTE NOT UNAMBIGUOUS, ALL THE LIGHT RELEVANTLY SHED
UPON THE WORDS AND THE CLAUSE AND THE STATUTE THAT EXPRESS THE PURPOSE
OF CONGRESS.  VERY EARLY MR. CHIEF JUSTICE MARSHALL TOLD US, "WHERE THE
MIND LABOURS TO DISCOVER THE DESIGN OF THE LEGISLATURE, IT SEIZES EVERY
THING FROM WHICH AID CAN BE DERIVED  ...  ."  UNITED STATES V. FISHER,
2 CRANCH 358, 386.  PARTICULARLY IS THIS SO WHEN WE CONSTRUE STATUTES
DEFINING CONDUCT WHICH ENTAIL STIGMA AND PENALTIES AND PRISON.  NOT
THAT PENAL STATUTES ARE NOT SUBJECT TO THE BASIC CONSIDERATION THAT
LEGISLATION LIKE ALL OTHER WRITING SHOULD BE GIVEN, INSOFAR AS THE
LANGUAGE PERMITS, A COMMONSENSICAL MEANING.  BUT WHEN CHOICE HAS TO BE
MADE BETWEEN TWO READINGS OF WHAT CONDUCT CONGRESS HAS MADE A CRIME, IT
IS APPROPRIATE, BEFORE WE CHOOSE THE HARSHER ALTERNATIVE, TO REQUIRE
THAT CONGRESS SHOULD HAVE SPOKEN IN LANGUAGE THAT IS CLEAR AND
DEFINITE.  WE SHOULD NOT DERIVE CRIMINAL OUTLAWRY FROM SOME AMBIGUOUS
IMPLICATION. 

THE PENAL PROVISION OF THE FAIR LABOR STANDARDS ACT IS ONLY PART OF A
SCHEME AVAILABLE TO THE GOVERNMENT AND TO THE EMPLOYEE FOR ENFORCING
THE ACT.  THE PREVENTIVE REMEDY OF AN INJUNCTION AND INDIVIDUAL OR
CLASS ACTIONS FOR RESTITUTION AND DAMAGES IN SEC. 16(B) ARE NOT ONLY
ALSO AVAILABLE.  THEY ARE THE REMEDIES MORE FREQUENTLY INVOKED AND MORE
EFFECTIVE IN ACHIEVING THE PURPOSES OF THE ACT.  OF COURSE THE VARIOUS
REMEDIES MUST BE READ IN RELATION TO EACH OTHER.  BUT WE ARE ASKED HERE
IN ADDITION TO INFER THAT AN EMPLOYER'S FAILURE TO PERFORM HIS
OBLIGATIONS AS TO EACH EMPLOYEE CREATES A SEPARATE CRIMINAL OFFENSE
BECAUSE THE PROVISIONS FOR CIVIL LIABILITY IN SEC. 16(B) EXPRESSLY
RECOGNIZE A RIGHT IN THE INDIVIDUAL EMPLOYEE TO MAINTAIN A SEPARATE
ACTION AGAINST HIS EMPLOYER FOR RESTITUTION AND DAMAGES.  THE ARGUMENT
CUTS BOTH WAYS.  IF CONGRESS HAD WANTED TO ATTACH CRIMINAL CONSEQUENCES
TO EACH SEPARATE CIVIL LIABILITY IT COULD EASILY HAVE SAID SO, JUST AS
IT HAD NO DIFFICULTY IN STATING EXPLICITLY THAT THE UNIT FOR CIVIL
LIABILITY WAS WHAT WAS OWING TO EACH EMPLOYEE.  INSTEAD OF BALANCING
THE VARIOUS GENERALIZED AXIOMS OF EXPERIENCE IN CONSTRUING LEGISLATION,
REGARD FOR THE SPECIFIC HISTORY OF THE LEGISLATIVE PROCESS THAT
CULMINATED IN THE ACT NOW BEFORE US AFFORDS MORE SOLID GROUND FOR
GIVING IT APPROPRIATE MEANING. 

WHEN ORIGINALLY INTRODUCED IN CONGRESS, THE BILL OUT OF WHICH THE
FAIR LABOR STANDARDS ACT EVOLVED HAD TWO SEPARATE PENALTY PROVISIONS,
ONE FOR UNDERPAYMENTS IN VIOLATION OF SEC. 6 OR SEC. 7 AND ONE FOR
FAILURE TO COMPLY WITH THE RECORD-KEEPING PROVISIONS OF SEC. 11.  (FN5)
EACH PROVISION SET THE MAXIMUM FINE AT $500 AND EXPLICITLY DEFINED
WHAT CONSTITUTED A SEPARATE OFFENSE.  AS TO SECS. 6 AND 7 THE EMPLOYEE
WAS THE UNIT OF CRIMINAL OFFENSE AND AS TO SEC. 11 EACH WEEK OF
VIOLATION WAS A SEPARATE OFFENSE.  (FN6)  AFTER THE MEASURE WOUND ITS
WAY THROUGH A LONG LEGISLATIVE PROCESS THERE RESULTED CONSOLIDATION OF
THE TWO PENALTY PROVISIONS, ELIMINATION OF THE SEPARATE OFFENSE
CLAUSES, AND SUBSTITUTION OF $10,000 FOR $500 AS THE MAXIMUM FINE. 
THESE RATHER STRIKING CHANGES WOULD IN THEMSELVES AFFORD JUSTIFIABLE
GROUND FOR GIVING THE LESS HARSH AND THEREFORE MORE REASONABLE
CONSTRUCTION TO THE OFFENSE-CREATING PORTIONS OF THE LEGISLATION.  IN
ADDITION, WE HAVE ILLUMINATING STATEMENTS IN BOTH HOUSES CONCERNING THE
SEPARATION OF OFFENSES.  ALTHOUGH THE SEPARATE OFFENSE CLAUSE FOR
RECORD-KEEPING VIOLATIONS WAS DELETED EARLY IN THE LEGISLATIVE PROCESS,
THE OTHER SEPARATE OFFENSE CLAUSE WAS ATTACKED IN DEBATE PRECISELY
BECAUSE IT WOULD AUTHORIZE THE SORT OF MULTIPLICATION OF OFFENSES BY
THE NUMBER OF EMPLOYEES THAT THE INFORMATION BEFORE US REPRESENTS. 
(FN7)  INDEED, MULTIPLICATION IN THIS INFORMATION GOES BEYOND WHAT EVEN
THE ORIGINAL BILLS WOULD HAVE AUTHORIZED.  UNDERPAYMENTS OF THE SAME
EMPLOYEES ARE SPLIT INTO SEPARATE COUNTS OF THE INFORMATION, AND RECORD
KEEPING VIOLATIONS DURING THE SAME WEEK ARE SPLIT TO SERVE AS THE BASIS
OF SEPARATE COUNTS. 

IT WOULD BE SELF-DECEPTIVE TO CLAIM THAT ONLY ONE ANSWER IS POSSIBLE
TO OUR PROBLEM.  BUT THE HISTORY OF THIS LEGISLATION AND THE
INEXPLICITNESS OF ITS LANGUAGE WEIGH AGAINST THE GOVERNMENT'S
CONSTRUCTION OF A STATUTE THAT CANNOT BE SAID TO BE DECISIVELY CLEAR ON
ITS FACE ONE WAY OR THE OTHER.  BECAUSE OF THE HISTORY AND LANGUAGE OF
THIS LEGISLATION, THE CASE IS NOT ATTRACTED BY THE RESPECTIVE AUTHORITY
OF TWO CASES PRESSED UPON US.  IN RE SNOW, 120 U.S. 274, AND
BLOCKBURGER V. UNITED STATES, 284 U.S. 299. 

THE DISTRICT JUDGE WAS THEREFORE CORRECT IN REJECTING THE
GOVERNMENT'S CONSTRUCTION OF THE STATUTE.  THE OFFENSE MADE PUNISHABLE
UNDER THE FAIR LABOR STANDARDS ACT IS A COURSE OF CONDUCT.  SUCH A
READING OF THE STATUTE COMPENDIOUSLY TREATS AS ONE OFFENSE ALL
VIOLATIONS THAT ARISE FROM THAT SINGLENESS OF THOUGHT, PURPOSE OR
ACTION, WHICH MAY BE DEEMED A SINGLE "IMPULSE," A CONCEPTION RECOGNIZED
BY THIS COURT IN THE BLOCKBURGER CASE, SUPRA, AT 302, QUOTING WHARTON'S
CRIMINAL LAW (11TH ED.)  SEC.  34.  MERELY TO ILLUSTRATE, WITHOUT
ATTEMPTING TO RULE ON SPECIFIC SITUATIONS:  A WHOLLY UNJUSTIFIABLE
MANAGERIAL DECISION THAT A CERTAIN ACTIVITY WAS NOT WORK AND THEREFORE
DID NOT REQUIRE COMPENSATION UNDER F.L.S.A. STANDARDS CANNOT BE TURNED
INTO A MULTIPLICITY OF OFFENSES BY CONSIDERING EACH UNDERPAYMENT IN A
SINGLE WEEK OR TO A SINGLE EMPLOYEE AS A SEPARATE OFFENSE. 

HOWEVER, A WHOLLY DISTINCT MANAGERIAL DECISION THAT PIECE WORKERS
SHOULD BE PAID LESS THAN THE STATUTORY REQUIREMENT IN TERMS OF HOURLY
RATES, SEE UNITED STATES V. ROSENWASSER, 323 U.S. 360, INVOLVES A
DIFFERENT COURSE OF CONDUCT, AND SO WOULD CONSTITUTE A DIFFERENT
OFFENSE.  THUS, UNDERPAYMENTS BASED ON VIOLATIONS OF THE STATUTE AS TO
THESE PIECE WORKERS COULD NOT BE COMPOUNDED INTO A SINGLE OFFENSE WITH
UNRELATED UNDERPAYMENTS WHICH RESULTED FROM THE DECISION THAT A CERTAIN
ACTIVITY WAS NOT WORK, MERELY BECAUSE THE TWO KINDS OF UNDERPAYMENTS
OCCURRED IN THE SAME WORKWEEK OR INVOLVED THE SAME EMPLOYEE.  WHETHER
AN AGGREGATE OF ACTS CONSTITUTE A SINGLE COURSE OF CONDUCT AND
THEREFORE A SINGLE OFFENSE, OR MORE THAN ONE, MAY NOT BE CAPABLE OF
ASCERTAINMENT MERELY FROM THE BARE ALLEGATIONS OF AN INFORMATION AND
MAY HAVE TO AWAIT THE TRIAL ON THE FACTS. 

THIS INFORMATION IS BASED ON WHAT WE FIND TO BE AN IMPROPER THEORY. 
BUT A DRAFTSMAN OF AN INDICTMENT MAY CHARGE CRIME IN A VARIETY OF FORMS
TO AVOID FATAL VARIANCE OF THE EVIDENCE.  HE MAY CAST THE INDICTMENT IN
SEVERAL COUNTS WHETHER THE BODY OF FACTS UPON WHICH THE INDICTMENT IS
BASED GIVES RISE TO ONLY ONE CRIMINAL OFFENSE OR TO MORE THAN ONE.  TO
BE SURE, THE DEFENDANT MAY CALL UPON THE PROSECUTOR TO ELECT OR, BY
ASKING FOR A BILL OF PARTICULARS, TO RENDER THE VARIOUS COUNTS MORE
SPECIFIC.  IN ANY EVENT, BY AN INDICTMENT OF MULTIPLE COUNTS THE
PROSECUTOR GIVES THE NECESSARY NOTICE AND DOES NOT DO THE LESS SO
BECAUSE AT THE CONCLUSION OF THE GOVERNMENT'S CASE THE DEFENDANT MAY
INSIST THAT ALL THE COUNTS ARE MERELY VARIANTS OF A SINGLE OFFENSE. 

BY AFFIRMING THIS ORDER WITHOUT PREJUDICE TO AMENDMENT OF THE
INFORMATION, WE DO NOT MEAN TO SUGGEST THAT AMENDMENT TO INCREASE THE
NUMBER OF OFFENSES MAY BE MADE AFTER TRIAL HAS BEGUN.  BUT THE
GOVERNMENT IS NOT PRECLUDED FROM NOW AMENDING THE INFORMATION EITHER TO
MEET THE EXIGENCIES OF THE EVIDENCE OR TO CHARGE AS SEPARATE OFFENSES
SEPARATE COURSES OF CONDUCT AS TO EACH SUBSTANTIVE PROVISION.  ALL WE
NOW DECIDE IS THAT THE DISTRICT JUDGE CORRECTLY HELD THAT A SINGLE
COURSE OF CONDUCT DOES NOT CONSTITUTE MORE THAN ONE OFFENSE UNDER SEC.
15 OF THE FAIR LABOR STANDARDS ACT. 

WITHOUT PREJUDICE TO AMENDMENT OF THE INFORMATION BEFORE TRIAL IF THE
EVIDENCE TO BE OFFERED WARRANTS IT, THE ORDER BELOW IS AFFIRMED. 

FN1  THE CRIMINAL ENFORCEMENT PROVISIONS OF THE FAIR LABOR STANDARDS
ACT ARE SECS. 15 AND 16.  SECTION 16 PROVIDES A MAXIMUM FINE OF $10,000
FOR "ANY PERSON WHO WILLFULLY VIOLATES ANY OF THE PROVISIONS OF SECTION
15  ...  ."  SECTION 15 MAKES IT "UNLAWFUL FOR ANY PERSON  ...  (2) TO
VIOLATE ANY OF THE PROVISIONS OF SECTION 6 OR SECTION 7  ...  (5) TO
VIOLATE ANY OF THE PROVISIONS OF SECTION 11(C) ...  ."  SECTION 6
PROVIDES, "EVERY EMPLOYER SHALL PAY TO EACH OF HIS EMPLOYEES WHO IS
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE  ...
NOT LESS THAN 75 CENTS AN HOUR; ...  ."  SECTION 7 PROVIDES "  ...  NO
EMPLOYER SHALL EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE
OR IN THE PRODUCTION OF GOODS FOR COMMERCE FOR A WORKWEEK LONGER THAN
FORTY HOURS, UNLESS SUCH EMPLOYEE RECEIVED COMPENSATION FOR HIS
EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED AT A RATE NOT LESS
THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED." 
RECORDS OF THE PERSONS EMPLOYED BY HIM AND OF THE WAGES, HOURS, AND
OTHER CONDITIONS AND PRACTICES OF EMPLOYMENT MAINTAINED BY HIM, AND
SHALL PRESERVE SUCH RECORDS FOR SUCH PERIODS OF TIME, AND SHALL MAKE
SUCH REPORTS THEREFROM TO THE ADMINISTRATOR AS HE SHALL PRESCRIBE BY
REGULATION OR ORDER  ...  ." 

FN2  102 F. SUPP. 179, 186, MODIFIED BY ORDER DATED MARCH 10, 1952,
R. 20. 

FN3  THE GOVERNMENT URGES THAT THE ACT BE CONSTRUED "TO PUNISH EACH
FAILURE TO COMPLY WITH EACH DUTY IMPOSED BY THE ACT AS TO EACH EMPLOYEE
IN EACH WORKWEEK AND AS TO EACH RECORD REQUIRED TO BE KEPT."  BRIEF FOR
UNITED STATES, P. 10.  HOWEVER, IN NONE OF THE FIRST 26 COUNTS,
CHARGING MINIMUM WAGE OR OVERTIME UNDERPAYMENTS, WERE SIMILAR
VIOLATIONS CHARGED AS TO TWO EMPLOYEES IN THE SAME WEEK, SO THAT IT
WOULD BE SUFFICIENT IN THIS CASE TO URGE THAT THE VIOLATIONS MAY BE
SPLIT ACCORDING TO THE WORKWEEK, RATHER THAN ALSO ACCORDING TO THE
EMPLOYEE.  AS TO THE LAST SIX COUNTS, CHARGING RECORD-KEEPING
VIOLATIONS, IT MIGHT HAVE BEEN POSSIBLE FOR THE GOVERNMENT TO URGE LESS
THAN THAT EACH RECORD REQUIRED TO BE KEPT IS A SEPARATE OFFENSE.  WITH
ONE MINOR EXCEPTION, VIOLATIONS WERE ALLEGED AS TO AT LEAST TWO
EMPLOYEES IN EVERY WORKWEEK FOR WHICH RECORD-KEEPING VIOLATIONS WERE
CHARGED.  THE WORKWEEK WAS NOT THE UNIT OF PROSECUTION, SINCE THE
PERIODS OF TIME IN THESE SIX COUNTS RANGE FROM ABOUT SEVEN WEEKS TO
OVER SIX MONTHS.  BUT THE EMPLOYEE WAS ALSO NOT THE UNIT, SINCE
ALTHOUGH VIOLATIONS AS TO EACH EMPLOYEE WERE MADE INTO SEPARATE
CHARGES, TWO EMPLOYEES ARE THE SUBJECT OF TWO CHARGES APIECE. 
WHATEVER DIFFERENCES EXIST BETWEEN THE MINIMUM NECESSARY TO SUSTAIN
THIS PARTICULAR INFORMATION AND THE CLAIM MADE BY THE GOVERNMENT ARE
IMMATERIAL, IN VIEW OF OUR DISPOSITION OF THE CASE. 

FN4  APPELLEE DOES NOT URGE IN THIS CASE THAT SEC. 15 PRESCRIBES ONLY
ONE OFFENSE EVEN IF THERE ARE THREE KINDS OF VIOLATIONS.  SUCH AN
ARGUMENT SEEMS TO HAVE BEEN MADE AND WAS REJECTED, AS TO DISTINCT
REQUIREMENTS UNDER TWO DIFFERENT SECTIONS OF THE ACT THERE INVOLVED, IN
BLOCKBURGER V. UNITED STATES, 284 U.S. 299, 305, WHERE THE PENAL
PROVISION APPLIED TO "ANY PERSON WHO VIOLATES OR FAILS TO COMPLY WITH
ANY OF THE REQUIREMENTS OF THIS ACT." 

FN5  SEE SECS. 27(A) AND 27(B) IN S. 2475 AND H.R. 7200, 75TH CONG.,
1ST SESS. 

FN6  IN SEC. 27(A), THE CLAUSE READ:  "WHERE THE EMPLOYMENT OF AN
EMPLOYEE IN VIOLATION OF ANY PROVISION OF THIS ACT OR OF A LABOR
STANDARD ORDER IS UNLAWFUL, EACH EMPLOYEE SO EMPLOYED IN VIOLATION OF
SUCH PROVISION SHALL CONSTITUTE A SEPARATE OFFENSE."  IN SEC.  27(B),
THE CLAUSE WAS: "  ...  AND EACH WEEK OF SUCH FAILURE TO KEEP THE
RECORDS REQUIRED UNDER THIS ACT OR TO FURNISH SAME TO THE BOARD OR ANY
AUTHORIZED REPRESENTATIVE OF THE BOARD SHALL CONSTITUTE A SEPARATE
OFFENSE." 

FN7  SEE 81 CONG. REC. 7792; 81 CONG. REC. 9507; 82 CONG. REC. 1828. 
FORCE IS ADDED TO THESE STATEMENTS BY THE FACT THAT ONE WAS MADE BY A
MEMBER OF THE HOUSE WHO PROPOSED THE AMENDMENT WHICH WAS ADOPTED, BY
VOTE ON DIVISION, SPECIFICALLY TO DELETE THE SEPARATE OFFENSE CLAUSE OF
SEC. 27(A)(THEN SEC. 22(A)).  82 CONG. REC. 1828-1839.  THE BILL THUS
CAME TO THE CONFERENCE FROM THE HOUSE WITH BOTH SEPARATE OFFENSE
CLAUSES DELETED, BUT FROM THE SENATE WITH ONLY THE CLAUSE OF SEC. 27(B)
DELETED.  BOTH VERSIONS STILL PROVIDED A MAXIMUM FINE OF $500.  THE
CONFERENCE ACCEPTED THE HOUSE VERSION, WITH NEITHER SEPARATE OFFENSE
CLAUSE, BUT RAISED THE MAXIMUM FINE TO $10,000.  SEE S. 2475, 75TH
CONG., 1ST SESS., SECS. 23(A), 23(B), AS REPORTED FROM COMMITTEE, JULY
8, 1937; 81 CONG. REC. 7957; H.R. REP. NO. 2182, 75TH CONG., 3D SESS.
5; 83 CONG. REC. 7450; CONFERENCE REPORT, SEC. 16(A), 83 CONG. REC.
9249. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I THINK THE QUESTION WHETHER AN EMPLOYER HAS VIOLATED THE CRIMINAL
PROVISIONS OF THE ACT IS DETERMINED BY REFERENCE TO WHAT HE HAS DONE TO
A PARTICULAR EMPLOYEE.  THE ACT DOES NOT SPEAK OF "COURSE OF CONDUCT." 
THAT IS THE COURT'S TERMINOLOGY, NOT THE ACT'S.  THE ACT REQUIRES THE
EMPLOYER TO PAY "EACH OF HIS EMPLOYEES" NOT LESS THAN 75 CENTS AN HOUR,
PROHIBITS HIM FROM EMPLOYING "ANY OF HIS EMPLOYEES" FOR MORE THAN 40
HOURS A WEEK UNLESS OVERTIME IS PAID, AND REQUIRES HIM TO KEEP RECORDS
OF "THE PERSONS EMPLOYED BY HIM" AND THE WAGES, HOURS, ETC. 29 U.S.C.
SEC. 206, 207, 211(C), AS AMENDED.  AND THE ACT MAKES IT UNLAWFUL FOR
AN EMPLOYER TO VIOLATE "ANY OF THE PROVISIONS" OF THOSE SECTIONS.  29
U.S.C. SECS. 215, 216(A). 

IT THEREFORE SEEMS CLEAR TO ME THAT IF AN EMPLOYER PAYS ONE EMPLOYEE
LESS THAN 75 CENTS AN HOUR OR FAILS TO PAY OVERTIME TO ONE EMPLOYEE, OR
FAILS TO KEEP THE REQUIRED RECORDS FOR ONE EMPLOYEE, A CRIME HAS BEEN
ESTABLISHED, IF SCIENTER IS SHOWN.  AND IT SEEMS EQUALLY CLEAR TO ME
THAT IF AN EMPLOYER WILFULLY FAILS TO PAY ONE EMPLOYEE THE MINIMUM
WAGE, AND WILFULLY FAILS TO PAY HIM THE REQUIRED OVERTIME, AND WILFULLY
FAILS TO KEEP THE REQUIRED RECORDS FOR HIM, THREE CRIMES HAVE BEEN
COMMITTED.  THE CRIME IS DEFINED WITH REFERENCE TO THE INDIVIDUAL
EMPLOYEE.  THE CRIME MAY BE A SINGLE, ISOLATED ACT.  IT MAY OR MAY NOT
BE RECURRING OR CONTINUOUS.  THE VIOLATION MAY AFFECT ONE EMPLOYEE ONE
WEEK OR ONE MONTH AND ANOTHER EMPLOYEE ANOTHER WEEK OR ANOTHER MONTH;
AND IT MAY AFFECT ONE EMPLOYEE IN ONE WAY, ANOTHER EMPLOYEE IN A
DIFFERENT WAY.  THE VIOLATIONS MAY BE CONTINUOUS, AND FOLLOW A SET
PATTERN; OR THEY MAY BE SPORADIC AND ERRATIC.  THE ACT DOES NOT
DIFFERENTIATE BETWEEN THEM.  NOTHING IS SAID ABOUT "COURSE OF
CONDUCT."  PERHAPS A COMMITTEE OF CONGRESS WOULD BE RECEPTIVE TO THE
SUGGESTION NOW MADE.  BUT IT SHOULD BE RECEIVED THERE, NOT HERE.  OF
COURSE, HORRENDOUS POSSIBILITIES CAN BE ENVISAGED UNDER ALMOST EVERY
LAW.  BUT THE PROSECUTORS WHO ENFORCE THIS ACT, THE GRAND JURIES WHO
HEAR THE EVIDENCE ON VIOLATIONS, AND THE DISTRICT COURTS WHO APPLY THE
SANCTIONS HAVE TO DATE NOT MADE THESE CRIMINAL PROVISIONS OPPRESSIVE
AND BEYOND REASON.  YET UNTIL THIS CASE NO COURT, SO FAR AS I CAN
LEARN, HAS EVER HAD THE INVENTIVE GENIUS TO SUGGEST THAT "COURSE OF
CONDUCT" RATHER THAN THE "EMPLOYEE" IS THE UNIT OF THE CRIME. 
..END :






















F.W. WOOLWORTH CO. V. CONTEMPORARY ARTS, INC. 344 U.S. 228 


NO. 42.  ARGUED NOVEMBER 17, 1952 - DECIDED DECEMBER 22, 1952 - 193 F.2D
162, AFFIRMED. 


RESPONDENT SUED PETITIONER UNDER THE COPYRIGHT ACT TO RECOVER FOR
INFRINGEMENT OF COPYRIGHT ON A STATUETTE, INFRINGING COPIES OF WHICH
HAD BEEN SOLD BY PETITIONER IN ITS STORES.  PETITIONER PROVED THAT ITS
GROSS PROFIT FROM THE INFRINGEMENT WAS $899.16.  THE EVIDENCE OF DAMAGE
SUFFERED BY RESPONDENT, THOUGH INDICATING REAL AND SUBSTANTIAL INJURY,
WAS INSUFFICIENT TO ESTABLISH THE AMOUNT OF DAMAGE ACTUALLY SUSTAINED. 
THE TRIAL COURT ALLOWED RECOVERY OF $5,000 "STATUTORY DAMAGES."  HELD:
THE AWARD OF DAMAGES IN THE AMOUNT OF $5,000 WAS AUTHORIZED BY 17
U.S.C. SEC. 101(B).  PP. 229-234. 

(A)  THE FACT THAT PETITIONER PROVED THAT ITS GROSS PROFIT FROM THE
INFRINGEMENT WAS $899.16 DOES NOT LIMIT RECOVERY TO THAT AMOUNT.  PP.
231-233. 

(B)  SHELDON V. METRO-GOLDWYN PICTURES CORP., 309 U.S. 390, AND
JEWELL-LASALLE REALTY CO. V. BUCK, 283 U.S. 202, DISTINGUISHED.  P.
234. 

(C)  THE STATUTE EMPOWERS THE TRIAL COURT IN THE EXERCISE OF A SOUND
JUDICIAL DISCRETION TO DETERMINE WHETHER ON ALL THE FACTS A RECOVERY
UPON PROVEN PROFITS AND DAMAGES OR ONE ESTIMATED WITHIN THE STATUTORY
LIMITS IS MORE JUST; AND THERE WAS NO ABUSE OF THAT DISCRETION IN THIS
CASE.  P. 234. 

F.W. WOOLWORTH CO. V. CONTEMPORARY ARTS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

IN AN ACTION UNDER THE COPYRIGHT ACT TO RECOVER FOR INFRINGEMENT OF
COPYRIGHT, THE DISTRICT COURT GAVE JUDGMENT FOR THE PLAINTIFF,
RESPONDENT HERE.  THE COURT OF APPEALS AFFIRMED.  193 F.2D 162.  THIS
COURT GRANTED A LIMITED WRIT OF CERTIORARI.  343 U.S. 963.  AFFIRMED,
P. 234. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BROUGHT THIS ACTION UNDER THE COPYRIGHT ACT TO RECOVER FOR
INFRINGEMENT OF COPYRIGHT ON A WORK OF ART ENTITLED "COCKER SPANIEL IN
SHOW POSITION."  THE DISTRICT COURT FOUND THE COPYRIGHT, OF WHICH
RESPONDENT WAS ASSIGNEE, VALID AND INFRINGED AND AWARDED STATUTORY
DAMAGES OF $5,000, WITH A $2,000 ATTORNEY'S FEE.  THE COURT OF APPEALS
AFFIRMED.  (FN1)  WE GRANTED CERTIORARI, (FN2) LIMITING THE ISSUES TO
THE MEASURE OF THE RECOVERY, AS TO WHICH CONFLICT APPEARS AMONG LOWER
COURTS.  (FN3) 

RESPONDENT MADE SMALL SCULPTURES AND FIGURINES, AMONG WHICH WERE
STATUES OF THE COCKER SPANIEL, AND MARKETED THEM CHIEFLY THROUGH GIFT
AND ART SHOPS.  PETITIONER, FROM A DIFFERENT SOURCE, BOUGHT 127 DOZEN
COCKER SPANIEL STATUETTES AND DISTRIBUTED THEM THROUGH THIRTY-FOUR
WOOLWORTH STORES.  UNBEKNOWN TO WOOLWORTH, THESE DOGS HAD BEEN COPIED
FROM RESPONDENT'S AND BY MARKETING THEM IT BECAME AN INFRINGER. 

BY THE ACT AN INFRINGER BECOMES LIABLE: 

"TO PAY TO THE COPYRIGHT PROPRIETOR SUCH DAMAGES AS THE COPYRIGHT
PROPRIETOR MAY HAVE SUFFERED DUE TO THE INFRINGEMENT, AS WELL AS ALL
THE PROFITS WHICH THE INFRINGER SHALL HAVE MADE FROM SUCH INFRINGEMENT,
AND IN PROVING PROFITS THE PLAINTIFF SHALL BE REQUIRED TO PROVE SALES
ONLY, AND THE DEFENDANT SHALL BE REQUIRED TO PROVE EVERY ELEMENT OF
COST WHICH HE CLAIMS, OR IN LIEU OF ACTUAL DAMAGES AND PROFITS, SUCH
DAMAGES AS TO THE COURT SHALL APPEAR TO BE JUST, AND IN ASSESSING SUCH
DAMAGES THE COURT MAY, IN ITS DISCRETION, ALLOW THE AMOUNTS AS
HEREINAFTER STATED  ...  AND SUCH DAMAGES SHALL IN NO OTHER CASE EXCEED
THE SUM OF $5,000 NOR BE LESS THAN THE SUM OF $250, AND SHALL NOT BE
REGARDED AS A PENALTY  ...  ."  17 U.S.C. SEC. 101(B). 

PROFITS MADE BY THE PETITIONER FROM THE INFRINGEMENT WERE
SUFFICIENTLY PROVED TO ENABLE ASSESSMENT OF THAT ELEMENT OF LIABILITY. 
PETITIONER ITSELF SHOWED, WITHOUT CONTRADICTION, THAT THE 127 DOZEN
DOGS WERE BOUGHT AT 60 CENTS APIECE AND SOLD FOR $1.19 EACH, YIELDING A
GROSS PROFIT OF $899.16.  THE INFRINGER DID NOT ASSUME THE BURDEN,
WHICH THE STATUTE CASTS UPON IT, OF PROVING ANY OTHER COSTS THAT MIGHT
BE DEDUCTIBLE, SO THE GROSS FIGURE IS LEFT TO STAND AS THE PROFIT
FACTOR OF THE INFRINGER'S TOTAL LIABILITY. 

AS TO THE OTHER INGREDIENT IN COMPUTING LIABILITY, DAMAGES SUFFERED
BY THE COPYRIGHT PROPRIETOR, THE RECORD IS INADEQUATE TO ESTABLISH AN
ACTUALLY SUSTAINED AMOUNT.  ENOUGH APPEARS TO INDICATE THAT REAL AND
SUBSTANTIAL INJURY WAS INFLICTED.  RESPONDENT HAD GROSS ANNUAL INCOME
OF ABOUT $35,000 AND ENGAGED ONLY EIGHT EMPLOYEES, INDICATING ITS SMALL
PRODUCTION.  ITS STATUETTES WERE OF THREE MEDIA AND PRICES:  RED
PLASTER RETAILED AT $4, RED PORCELAIN AT $9, WHILE A BLACK AND WHITE
PORCELAIN BROUGHT $15.  THERE WAS EVIDENCE THAT THE CHEAPER INFRINGING
STATUETTE WAS INFERIOR IN QUALITY.  RESPONDENT PROVED LOSS OF SOME
CUSTOMERS AND OFFERED, BUT WAS NOT ALLOWED, TO SHOW COMPLAINTS FROM
SALES OUTLETS ABOUT THE WOOLWORTH COMPETITION, DECLINE IN RESPONDENT'S
SALES, AND EVENTUAL ABANDONMENT OF THE LINE WITH AN UNSALABLE STOCK ON
HAND.  THE TRIAL JUDGE EXCLUDED OR STRUCK MOST OF THIS TESTIMONY ON THE
GROUND THAT AUTHORITY TO ALLOW STATUTORY DAMAGES RENDERED PROOF OF
ACTUAL DAMAGE UNNECESSARY.  I MIGHT HAVE BEEN BETTER PRACTICE TO HAVE
RECEIVED THE EVIDENCE, EVEN IF IT FELL SHORT OF ESTABLISHING THE
MEASURE OF LIABILITY; FOR WHEN RECOVERY MAY BE AWARDED WITHOUT ANY
PROOF OF INJURY, IT CANNOT HURT AND MAY AID THE EXERCISE OF DISCRETION
TO HEAR ANY EVIDENCE ON THE SUBJECT THAT HAS PROBATIVE VALUE.  HOWEVER,
PETITIONER CANNOT COMPLAIN OF THIS EXCLUSION, WHICH WAS IN RESPONSE TO
ITS OBJECTIONS.  AT LENGTH, THE COURT SAID:  "IF YOU ESTABLISH THIS WAS
AN INFRINGEMENT OF COPYRIGHT, IT IS INESCAPABLY CLEAR THERE IS ENOUGH
EVIDENCE IN THIS CASE UPON WHICH TO PREDICATE DAMAGE UP TO $5000.  I
DON'T THINK MR. BARNES (COUNSEL FOR DEFENDANT) DISAGREES WITH THAT, DO
YOU?"  MR. BARNES:  "NO, YOUR HONOR." 

THE COURT, HAVING FOUND INFRINGEMENT, ACCORDINGLY ALLOWED RECOVERY OF
"STATUTORY DAMAGES IN THE AMOUNT OF FIVE THOUSAND DOLLARS ($5,000.)  AS
PROVIDED BY THE COPYRIGHT LAWS OF THE UNITED STATES," WITH AN
INJUNCTION AND ATTORNEY'S FEE. 

PETITIONER'S CONTENTION HERE IS THAT THE STATUTE WAS MISAPPLIED
BECAUSE ITS OWN GROSS PROFIT OF $899.16 SUPPLIED AN ACTUAL FIGURE WHICH
BECAME THE EXCLUSIVE MEASURE OF ITS LIABILITY.  IT ARGUES THAT AN
INFRINGING DEFENDANT, BY COMING FORWARD WITH AN UNDISPUTED ADMISSION OF
ITS OWN PROFIT FROM THE INFRINGEMENT, CAN TIE THE HANDS OF THE COURT
AND LIMIT RECOVERY TO THAT AMOUNT.  WE CANNOT AGREE. 

IN DOUGLAS V. CUNNINGHAM, 294 U.S. 207, 209, WE SAID: 

"THE PHRASEOLOGY OF THE SECTION WAS ADOPTED TO AVOID THE STRICTNESS OF
CONSTRUCTION INCIDENT TO A LAW IMPOSING PENALTIES, AND TO GIVE THE
OWNER OF A COPYRIGHT SOME RECOMPENSE FOR INJURY DONE HIM, IN A CASE
WHERE THE RULES OF LAW RENDER DIFFICULT OR IMPOSSIBLE PROOF OF DAMAGES
OR DISCOVERY OF PROFITS." 

TO FULFILL THAT PURPOSE, THE STATUTE HAS BEEN INTERPRETED TO VEST IN
THE TRIAL COURT BROAD DISCRETION TO DETERMINE WHETHER IT IS MORE JUST
TO ALLOW A RECOVERY BASED ON CALCULATION OF ACTUAL DAMAGES AND PROFITS,
AS FOUND FROM EVIDENCE, OR ONE BASED ON A NECESSARILY SOMEWHAT
ARBITRARY ESTIMATE WITHIN THE LIMITS PERMITTED BY THE ACT. 

"IN OTHER WORDS, THE COURT'S CONCEPTION OF WHAT IS JUST IN THE
PARTICULAR CASE, CONSIDERING THE NATURE OF THE COPYRIGHT, THE
CIRCUMSTANCES OF THE INFRINGEMENT AND THE LIKE, IS MADE THE MEASURE OF
THE DAMAGES TO BE PAID, BUT WITH THE EXPRESS QUALIFICATION THAT IN
EVERY CASE THE ASSESSMENT MUST BE WITHIN THE PRESCRIBED LIMITATIONS,
THAT IS TO SAY, NEITHER MORE THAN THE MAXIMUM NOR LESS THAN THE
MINIMUM.  WITHIN THESE LIMITATIONS THE COURT'S DISCRETION AND SENSE OF
JUSTICE ARE CONTROLLING, BUT IT HAS NO DISCRETION WHEN PROCEEDING UNDER
THIS PROVISION TO GO OUTSIDE OF THEM."  L.A. WESTERMANN CO. V. DISPATCH
PRINTING CO., 249 U.S. 100, 106-107. 

FEW BODIES OF LAW WOULD BE MORE DIFFICULT TO REDUCE TO A SHORT AND
SIMPLE FORMULA THAN THAT WHICH DETERMINES THE MEASURE OF DAMAGE
RECOVERABLE FOR ACTIONABLE WRONGS.  THE NECESSARY FLEXIBILITY TO DO
JUSTICE IN THE VARIETY OF SITUATIONS WHICH COPYRIGHT CASES PRESENT CAN
BE ACHIEVED ONLY BY EXERCISE OF THE WIDE JUDICIAL DISCRETION WITHIN
LIMITED AMOUNTS CONFERRED BY THIS STATUTE.  IT IS PLAIN THAT THE
COURT'S CHOICE BETWEEN A COMPUTED MEASURE OF DAMAGE AND THAT IMPUTED BY
STATUTE CANNOT BE CONTROLLED BY THE INFRINGER'S ADMISSION OF HIS
PROFITS WHICH MIGHT BE GREATLY EXCEEDED BY THE DAMAGE INFLICTED. 
INDEED SALES AT A SMALL MARGIN MIGHT CAUSE MORE DAMAGE TO THE COPYRIGHT
PROPRIETOR THAN SALES OF THE INFRINGING ARTICLE AT A HIGHER PRICE. 

WHETHER DISCRETIONARY RESORT TO ESTIMATION OF STATUTORY DAMAGES IS
JUST SHOULD BE DETERMINED BY TAKING INTO ACCOUNT BOTH COMPONENTS AND
THE DIFFICULTIES IN THE WAY OF PROOF OF EITHER.  IN THIS CASE THE
PROFITS REALIZED WERE ESTABLISHED BY UNCONTRADICTED EVIDENCE, BUT THE
COURT WAS WITHIN THE BOUNDS OF ITS DISCRETION IN CONCLUDING THAT THE
AMOUNT OF DAMAGES SUFFERED WAS NOT COMPUTABLE FROM THE TESTIMONY.  LACK
OF ADEQUATE PROOF ON EITHER ELEMENT WOULD WARRANT RESORT TO THE STATUTE
IN THE DISCRETION OF THE COURT, SUBJECT ALWAYS TO THE STATUTORY
LIMITATIONS. 

THE CASE BEFORE US ILLUSTRATES WHAT CAPRICIOUS RESULTS WOULD FOLLOW
FROM THE PRACTICE FOR WHICH PETITIONER CONTENDS.  IT HAS ADMITTED GROSS
PROFITS, WHICH MAKE NO DEDUCTION FOR SALES COSTS, OVERHEADS OR TAXES
AND, HENCE, MAY APPEAR SUBSTANTIAL ON THIS PARTICULAR RECORD.  BUT
GROSS PROFITS IS NOT WHAT A COPYRIGHT OWNER IS ENTITLED TO RECOVER, BUT
ONLY SUCH PROFITS AS REMAIN AFTER THE DEFENDANT REDUCES THEM, AS IT
MAY, BY PROOF OF ALLOWABLE ELEMENTS OF COST.  IF WE SUSTAIN
PETITIONER'S CONTENTION THAT PROFITS MAY BE THE SOLE MEASURE OF
LIABILITY AS MATTER OF LAW, SUCH PROFITS COULD BE DIMINISHED EVEN TO
THE VANISHING POINT. 

NET PROFITS REALIZED BY A FAR-FLUNG DISTRIBUTING ENTERPRISE LIKE
WOOLWORTH'S UPON SALES OF A GIVEN ITEM IN A FEW OF ITS MANY STORES CAN
BE CALCULATED ONLY BY A PROCESS OF ALLOCATING OVERHEADS, SALES
EXPENSES, TAXES, AND A HOST OF ITEMS.  A PLAINTIFF IN THE POSITION OF
THE PRESENT ONE COULD HARDLY VERIFY OR CONTEST SUCH APPORTIONMENTS
UNLESS IT SHOULD AUDIT THE WHOLE WOOLWORTH BUSINESS. 

MOREOVER, A RULE OF LIABILITY WHICH MERELY TAKES AWAY THE PROFITS
FROM AN INFRINGEMENT WOULD OFFER LITTLE DISCOURAGEMENT TO INFRINGERS. 
IT WOULD FALL SHORT OF AN EFFECTIVE SANCTION FOR ENFORCEMENT OF THE
COPYRIGHT POLICY.  THE STATUTORY RULE, FORMULATED AFTER LONG
EXPERIENCE, NOT MERELY COMPELS RESTITUTION OF PROFIT AND REPARATION FOR
INJURY BUT ALSO IS DESIGNED TO DISCOURAGE WRONGFUL CONDUCT.  THE
DISCRETION OF THE COURT IS WIDE ENOUGH TO PERMIT A RESORT TO STATUTORY
DAMAGES FOR SUCH PURPOSES.  EVEN FOR UNINJURIOUS AND UNPROFITABLE
INVASIONS OF COPYRIGHT THE COURT MAY, IF IT DEEMS IT JUST, IMPOSE A
LIABILITY WITHIN STATUTORY LIMITS TO SANCTION AND VINDICATE THE
STATUTORY POLICY. 

PETITIONER CITES SHELDON V. METRO-GOLDWYN PICTURES CORP., 309 U.S.
390, 399, WHERE THIS COURT SAID THAT THE "IN LIEU" CLAUSE "IS NOT
APPLICABLE HERE, AS THE PROFITS HAVE BEEN PROVED AND THE ONLY QUESTION
IS AS TO THEIR APPORTIONMENT," A STATEMENT ON WHICH PETITIONER LEANS
ALMOST ITS WHOLE WEIGHT.  THERE NET PROFITS FROM EXHIBITION OF AN
INFRINGING PICTURE WERE FOUND TO BE $587,604.37.  THE COPYRIGHT OWNER
COULD SHOW NO SUCH VALUE TO HIMSELF OF HIS COPYRIGHT; INDEED, HE HAD
NEGOTIATED ITS SALE AT $30,000.  THE COURT OF APPEALS CUT THE AWARD OF
THESE ACTUAL PROFITS TO ONE-FIFTH THEREOF, UPON THE GROUND THAT SUCCESS
OF THE PICTURE HAD BEEN LARGELY DUE TO FACTORS NOT CONTRIBUTED BY THE
INFRINGEMENT.  THE PROPRIETY OF THIS REDUCTION WAS THE SOLE ISSUE
BEFORE THIS COURT.  PETITIONER COPYRIGHT OWNER ASSERTED THAT IN SUCH
CIRCUMSTANCES THE "IN LIEU" CLAUSE "IS NOT INVOLVED HERE."  THIS COURT
AGREED THAT UNDER THOSE FACTS RESORT TO THE STATUTE WAS NOT
APPROPRIATE.  THAT CASE DID NOT PRESENT THE QUESTION NOW HERE.  NOR
DOES ANYTHING IN JEWELL-LASALLE REALTY CO. V. BUCK, 283 U.S. 202, IN
THE LIGHT OF ITS FACTS, SUPPORT PETITIONER.  IT HOLDS USE OF THE "IN
LIEU" CLAUSE PERMISSIBLE, "THERE BEING NO PROOF OF ACTUAL DAMAGES," BUT
IT DOES NOT HOLD THAT PARTIAL OR UNACCEPTABLE PROOF ON THAT SUBJECT
WILL PRECLUDE RESORT TO THE "IN LIEU" CLAUSE. 

WE THINK THAT THE STATUTE EMPOWERS THE TRIAL COURT IN ITS SOUND
EXERCISE OF JUDICIAL DISCRETION TO DETERMINE WHETHER ON ALL THE FACTS A
RECOVERY UPON PROVEN PROFITS AND DAMAGES OR ONE ESTIMATED WITHIN THE
STATUTORY LIMITS IS MORE JUST.  WE FIND NO ABUSE OF THAT DISCRETION. 

THE JUDGMENT BELOW IS AFFIRMED. 

FN1  193 F.2D 162. 

FN2  343 U.S. 963. 

FN3  F.W. WOOLWORTH CO. V. CONTEMPORARY ARTS, 193 F.2D 162, 167-169;
SAMMONS V. COLONIAL PRESS, 126 F.2D 341, 350; DAVILLA V. BRUNSWICK
BALKE COLLENDER CO., 94 F.2D 567; MALSED V. MARSHALL FIELD & CO., 96 F.
SUPP. 372, 376-377. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING. 

THE EARTHENWARE DOGS FOUND TO INFRINGE RESPONDENT'S COPYRIGHT WERE
BOUGHT BY F.W. WOOLWORTH COMPANY IN GOOD FAITH AT A TOTAL COST OF
$914.40.  WOOLWORTH'S TOTAL PROFIT FROM THE SALE OF THE DOGS WAS
$899.16.  THE COURT NOW HOLDS THAT WOOLWORTH MUST PAY THE DOGS'
COPYRIGHT OWNER $5,000.  THIS AWARD IS SAID TO BE ALLOWED BY SEC.
101(B) OF THE COPYRIGHT ACT, 17 U.S.C. SEC. 101.  WE DO NOT THINK THAT
POINTED OUT IN SHELDON V. METRO-GOLDWYN PICTURES CORP., 309 U.S. 390,
400-401, THAT SEC. 101, LIKE AN ANALOGOUS PATENT LAW SECTION, WAS NOT
INTENDED TO AWARD A COPYRIGHT OWNER BOTH DAMAGES AND PROFITS, BUT ONLY
"ONE OR THE OTHER, WHICHEVER WAS THE GREATER."  UNDER THIS RULE,
PROFITS ONLY SHOULD BE AWARDED TO RESPONDENT IN THIS CASE. 

RELIANCE FOR AWARDING $5,000 AGAINST WOOLWORTH IS NATURALLY PLACED ON
THAT PROVISION OF SEC. 101(B) WHICH PROVIDES FOR DAMAGES NOT IN EXCESS
OF $5,000 "IN LIEU OF ACTUAL DAMAGES AND PROFITS."  BUT THIS COURT HAS
SAID THAT THE PURPOSE OF THIS SECTION WAS TO RECOMPENSE FOR INJURY DONE
"WHERE THE RULES OF LAW RENDER DIFFICULT OR IMPOSSIBLE PROOF OF DAMAGES
OR DISCOVERY OF PROFITS."  DOUGLAS V. CUNNINGHAM, 294 U.S. 207, 209. 
HERE PROOF OF PROFITS WAS NEITHER DIFFICULT NOR IMPOSSIBLE.  AND IN THE
CAREFULLY CONSIDERED CASE OF SHELDON V. METRO-GOLDWYN PICTURES CORP.,
SUPRA, AT 399, MR. CHIEF JUSTICE HUGHES SPEAKING FOR THE COURT
DECLARED, "  ...  THE 'IN LIEU' CLAUSE IS NOT APPLICABLE HERE, AS THE
PROFITS HAVE BEEN PROVED  ...  ."  SEE ALSO TO THE SAME EFFECT DAVILLA
V. BRUNSWICK-BALKE COLLENDER CO., 94 F.2D 567; SAMMONS V. COLONIAL
PRESS, 126 F.2D 341.  WE WOULD ADHERE TO THIS VIEW AND LIMIT THIS
RECOVERY TO PROFITS MADE BY WOOLWORTH.  THIS COURT SHOULD HEED THE
ADMONITION GIVEN IN THE SHELDON CASE TO REMEMBER THAT THE OBJECT OF
SEC. 101(B) IS NOT TO INFLICT PUNISHMENT BUT TO AWARD AN INJURED
COPYRIGHT OWNER THAT WHICH IN FAIRNESS IS HIS "AND NOTHING BEYOND
THIS."  SHELDON V. METRO-GOLDWYN PICTURES CORP., SUPRA, AT 399.    THE
FOLLOWING CIRCUMSTANCES BEAR ON THE QUESTION OF UNFAIRNESS OF THE
AMOUNT OF DAMAGES AWARDED.  PETITIONER CONTENDED IN THE COURT OF
APPEALS THAT THE DISTRICT JUDGE DID NOT GIVE IT A FAIR AND IMPARTIAL
TRIAL.  "IN SUPPORT OF THIS CONTENTION," THE COURT OF APPEALS SAID,
"THE APPELLANT POINTS TO SEVERAL INSTANCES IN THE RECORD OF IRRELEVANT
AND PREJUDICIAL COMMENTS AND REMARKS" MADE BY THE TRIAL JUDGE. 
CONSIDERING THE JUDGE'S REMARKS AS "BOTH UNSEEMLY AND UNCALLED FOR,"
THE COURT OF APPEALS SAID: 

"BUT AFTER CAREFUL CONSIDERATION OF THE RECORD AS A WHOLE WE HAVE
CONCLUDED THAT THE PARTICULAR REMARKS OF THE JUDGE WHICH WOULD BETTER
HAVE BEEN LEFT UNSAID, AND ARE BETTER NOT QUOTED, DO NOT RISE TO THE
SERIOUSNESS OF REVERSIBLE ERROR.  HAVING REGARD FOR THE CONVINCING
NATURE OF THE PLAINTIFF'S PROOF, AND THE UNCONVINCING NATURE OF THAT OF
THE DEFENDANT, WE DO NOT FEEL THAT THE DECISION REACHED BY THE COURT
BELOW CAN BE ATTRIBUTED TO BIAS AND PREJUDICE.  THAT IS TO SAY, WE FEEL
THAT THE DEFENDANT REALLY HAD A FAIR AND IMPARTIAL TRIAL."  193 F.2D
162, 169. 

WE ACCPET THE COURT OF APPEALS' APPRAISAL OF THE CONSEQUENCES OF THE
JUDGE'S REMARKS ON THE FACTUAL ISSUE OF COPYRIGHT INFRINGEMENT.  BUT
HERE THE TRIAL JUDGE GAVE JUDGMENT FOR STATUTORY DAMAGES IN AN AMOUNT
THAT SMACKS OF PUNITIVE QUALITIES.  AND THIS COURT HAS HELD THAT THE
AMOUNT OF SUCH DAMAGES IS COMMITTED TO THE UNREVIEWABLE DISCRETION OF A
TRIAL JUDGE.  DOUGLAS V. CUNNINGHAM, 294 U.S. 207, 210.  IN VIEW OF THE
REMARKS OF THE TRIAL JUDGE DIRECTED AGAINST THE WOOLWORTH COMPANY, WE
THINK IT HAD A JUST RIGHT TO COMPLAIN THAT THE AMOUNT OF DAMAGES
IMPOSED OUGHT NOT TO STAND. 

WE WOULD REVERSE AND REMAND THIS CASE FOR A NEW TRIAL BY ANOTHER
JUDGE. 
..END :

















PUBLIC SERVICE COMMISSION OF UTAH V. WYCOFF COMPANY, INC. 344 U.S. 237 


NO. 44.  ARGUED NOVEMBER 13, 1952 - DECIDED DECEMBER 22, 1952 - 195 F.2D
252, REVERSED. 


RESPONDENT COMMENCED IN A FEDERAL DISTRICT COURT A SUIT IN EQUITY
SEEKING TWO KINDS OF SPECIFIC RELIEF:  (1) A DECLARATORY JUDGMENT THAT
ITS CARRIAGE OF MOTION PICTURE FILM AND NEWSREELS BETWEEN POINTS IN
UTAH CONSTITUTES INTERSTATE COMMERCE, AND (2) AN INJUNCTION AGAINST THE
STATE COMMISSION INTERFERING WITH SUCH TRANSPORTATION OVER ROUTES
AUTHORIZED BY THE INTERSTATE COMMERCE COMMISSION.  RESPONDENT OFFERED
NO EVIDENCE OF ANY PAST, PENDING OR THREATENED ACTION BY THE STATE
COMMISSION TOUCHING ITS BUSINESS IN ANY RESPECT.  THE DISTRICT COURT,
IN DISMISSING THE COMPLAINT AFTER TRIAL, MADE A GENERAL FINDING THAT NO
SUCH INTERFERENCE HAD BEEN MADE OR THREATENED; AND THIS FINDING WAS NOT
REVERSED OR MENTIONED BY THE COURT OF APPEALS.  HELD:  THE SUIT CANNOT
BE ENTERTAINED AS ONE FOR INJUNCTION AND SHOULD NOT BE CONTINUED AS ONE
FOR A DECLARATORY JUDGMENT.  PP. 239-249. 

1.  THERE CAN BE NO INJUNCTION ON CONSTITUTIONAL GROUNDS IN THIS
CASE.  IT IS WANTING IN EQUITY BECAUSE THERE IS NO PROOF OF ANY
THREATENED OR PROBABLE ACT OF THE DEFENDANTS WHICH MIGHT CAUSE THE
IRREPARABLE INJURY ESSENTIAL TO EQUITABLE RELIEF BY INJUNCTION.  PP.
240-241. 

2.  DECLARATORY RELIEF IS NOT APPROPRIATE UNDER THE CIRCUMSTANCES OF
THIS CASE.  PP.  241-249. 

(A)  THE DECLARATORY JUDGMENT ACT, 28 U.S.C. SEC. 2201, IS AN
ENABLING ACT WHICH CONFERS A DISCRETION ON THE COURTS RATHER THAN AN
ABSOLUTE RIGHT UPON THE LITIGANT.  P. 241. 

(B)  THE REMEDY AFFORDED BY THE ACT IS AVAILABLE ONLY IN CASES OF
ACTUAL CONTROVERSY WHICH ADMIT OF AN IMMEDIATE AND DEFINITE
DETERMINATION OF THE LEGAL RIGHTS OF THE PARTIES.  PP. 242-243. 

(C)  THE PROPRIETY OF DECLARATORY RELIEF IN A PARTICULAR CASE DEPENDS
UPON A CIRCUMSPECT SENSE OF ITS FITNESS INFORMED BY THE TEACHINGS AND
EXPERIENCE CONCERNING THE FUNCTIONS AND EXTENT OF FEDERAL JUDICIAL
POWER.  PP. 243-244. 

(D)  DISCRETIONARY USE OF THE DECLARATORY JUDGMENT ACT DOES NOT
PERMIT THE GRANT OF DECLARATORY RELIEF TO RESPONDENT MERELY TO HOLD IT
IN READINESS FOR USE SHOULD THE STATE COMMISSION AT ANY FUTURE TIME
ATTEMPT TO APPLY TO RESPONDENT ANY PART OF A COMPLICATED REGULATORY
STATUTE.  P. 245. 

(E)  THE DECLARATORY JUDGMENT PROCEDURE WILL NOT BE USED TO PRE-EMPT
AND PREJUDGE ISSUES THAT ARE COMMITTED FOR INITIAL DECISION TO AN
ADMINISTRATIVE BODY OR SPECIAL TRIBUNAL ANY MORE THAN IT WILL BE USED
AS A SUBSTITUTE FOR STATUTORY METHODS OF REVIEW.  PP. 246-247. 

(F)  AS HERE INVOKED, THE DECLARATORY JUDGMENT PROCEEDING IS
INAPPROPRIATE BECAUSE, IN ADDITION TO FORECLOSING AN ADMINISTRATIVE
BODY, IT IS INCOMPATIBLE WITH A PROPER FEDERAL-STATE RELATIONSHIP.  P.
247. 

(G)  WHERE THE COMPLAINT IN AN ACTION FOR DECLARATORY JUDGMENT SEEKS
IN ESSENCE TO ASSERT A DEFENSE TO AN IMPENDING OR THREATENED STATE
COURT ACTION, IT IS THE CHARACTER OF THE THREATENED ACTION, AND NOT OF
THE DEFENSE, WHICH DETERMINES WHETHER THERE IS FEDERAL-QUESTION
JURISDICTION IN THE DISTRICT COURT.  P. 248. 

(H)  FEDERAL COURTS WILL NOT SEIZE LITIGATIONS FROM STATE COURTS
MERELY BECAUSE ONE, NORMALLY A DEFENDANT, GOES TO FEDERAL COURT TO
BEGIN HIS FEDERAL-LAW DEFENSE BEFORE THE STATE COURT BEGINS THE CASE
UNDER STATE LAW.  P. 248. 

PUBLIC SERVICE COMMISSION OF UTAH ET AL. V. WYCOFF COMPANY, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

RESPONDENT'S SUIT IN EQUITY FOR A DECLARATORY JUDGMENT AND INJUNCTION
AGAINST PETITIONERS WAS DISMISSED BY THE DISTRICT COURT.  THE COURT OF
APPEALS REVERSED.  195 F.2D 252.  THIS COURT GRANTED CERTIORARI.  343
U.S. 975.  REVERSED WITH DIRECTIONS THAT THE ACTION BE DISMISSED, P.
249. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

AS THIS SUIT IN EQUITY WAS COMMENCED IN UNITED STATES DISTRICT COURT
IT SOUGHT TWO KINDS OF SPECIFIC RELIEF:  (1) A DECLARATORY JUDGMENT
THAT COMPLAINANT'S CARRIAGE OF MOTION PICTURE FILM AND NEWSREELS
BETWEEN POINTS IN UTAH CONSTITUTES INTERSTATE COMMERCE; (2) THAT THE
PUBLIC SERVICE COMMISSION OF UTAH AND ITS MEMBERS BE FOREVER ENJOINED
FROM INTERFERING WITH SUCH TRANSPORTATION OVER ROUTES AUTHORIZED BY THE
INTERSTATE COMMERCE COMMISSION. 

THE COMPLAINT ALLEGED A COURSE OF IMPORTING, PROCESSING AND
TRANSPORTING PICTURE FILM AND NEWSREELS TO SUPPORT THE CONTENTION THAT
CARRIAGE BETWEEN POINTS IN UTAH WAS SO INTEGRATED WITH THEIR INTERSTATE
MOVEMENT THAT THE WHOLE CONSTITUTED INTERSTATE COMMERCE.  IT AVERRED
THAT THE COMMISSION AND ITS MEMBERS "THREATEN TO AND ARE ATTEMPTING TO
STOP AND PREVENT PLAINTIFF FROM TRANSPORTING MOTION PICTURE FILM AND
NEWSREELS BETWEEN POINTS AND PLACES WITHIN THE STATE OF UTAH, AND THEY
ARE THEREBY INTERFERING WITH THE CONDUCT OF INTERSTATE COMMERCE BY THE
PLAINTIFF AND IMPOSING AN UNDUE BURDEN UPON INTERSTATE COMMERCE," AND
THAT UNLESS THE DEFENDANTS ARE ENJOINED THEY WILL "BLOCK, HARASS AND
PREVENT PLAINTIFF IN THE TRANSPORTATION OF SAID MOTION PICTURE FILM AND
NEWSREELS IN UTAH." 

THE COMMISSION AND ITS MEMBERS ANSWERED THAT RESPONDENT'S
TRANSPORTATION BETWEEN POINTS IN UTAH WAS NOTHING MORE THAN INTRASTATE
COMMERCE.  THEY SPECIFICALLY DENIED ATTEMPTING, THREATENING, OR
INTENDING TO INTERFERE WITH OR BURDEN INTERSTATE COMMERCE. 

THE DISTRICT COURT, AFTER TRIAL, SUSTAINED THE CONTENTION OF THE
COMMISSION AND DISMISSED THE COMPLAINT.  THE COURT OF APPEALS
CONSIDERED ONLY "WHETHER THE INTRASTATE TRANSPORTATIONS ARE NONETHELESS
INTEGRAL PARTS OF INTERSTATE TRANSPORTATIONS."  (FN1)  IT HELD THE
EVIDENCE TO WARRANT AN AFFIRMATIVE ANSWER, REVERSED THE JUDGMENT OF THE
DISTRICT COURT AND ORDERED FURTHER PROCEEDINGS IN CONFORMITY WITH THAT
VIEW.  WE GRANTED CERTIORARI, (FN2) REQUESTING COUNSEL TO DISCUSS
WHETHER A SINGLE JUDGE COULD HEAR AND DETERMINE THE CASE IN VIEW OF 28
U.S.C. SEC. 2281.  THAT SECTION PROVIDES THAT AN INJUNCTION RESTRAINING
ENFORCEMENT OF A STATE STATUTE OR THE ORDER OF AN ADMINISTRATIVE BODY
THEREUNDER "SHALL NOT BE GRANTED" UPON THE GROUND OF
UNCONSTITUTIONALITY UNLESS THE APPLICATION IS HEARD AND DETERMINED BY A
DISTRICT COURT OF THREE JUDGES AS PROVIDED IN 28 U.S.C. SEC. 2284. 

THE RESPONDENT, WHICH WAS PLAINTIFF, CONTENDS THAT A THREE-JUDGE
COURT WAS NOT REQUIRED, BECAUSE THE SUIT DOES NOT QUESTION
CONSTITUTIONALITY OF ANY UTAH STATUTE NOR THE VALIDITY OF ANY ORDER OF
THE STATE COMMISSION.  IT SAYS ALSO THAT NO INJUNCTION HAS BEEN GRANTED
OR EVEN URGED "OUTSIDE OF THE NAKED RECITATION IN THE PRAYER OF THE
COMPLAINT."  IT OFFERED NO EVIDENCE WHATEVER OF ANY PAST, PENDING OR
THREATENED ACTION BY THE UTAH COMMISSION TOUCHING ITS BUSINESS IN ANY
RESPECT.  THE PLEADINGS MADE THAT A CLEAR-CUT ISSUE, WHICH SEEMS TO
HAVE BEEN COMPLETELY IGNORED THEREAFTER.  THE ONLY ISSUES DEFINED ON
PRETRIAL HEARING WERE WHETHER AS MATTER OF FACT AND OF LAW THE WITHIN
STATE TRANSPORTATION CONSTITUTED INTERSTATE COMMERCE.  THE TRIAL COURT,
HOWEVER, MADE A GENERAL FINDING THAT NO SUCH INTERFERENCE HAD BEEN MADE
OR THREATENED, WHICH WAS NOT REVERSED OR MENTIONED BY THE COURT OF
APPEALS. 

FOR MORE REASONS THAN ONE IT IS CLEAR THAT THIS PROCEEDING CANNOT
RESULT IN AN INJUNCTION ON CONSTITUTIONAL GROUNDS.  IN ADDITION TO
DEFECTS THAT WILL APPEAR IN OUR DISCUSSION OF DECLARATORY RELIEF, IT IS
WANTING IN EQUITY BECAUSE THERE IS NO PROOF OF ANY THREATENED OR
PROBABLE ACT OF THE DEFENDANTS WHICH MIGHT CAUSE THE IRREPARABLE INJURY
ESSENTIAL TO EQUITABLE RELIEF BY INJUNCTION. 

THE RESPONDENT APPEARS TO HAVE ABANDONED THE SUIT AS ONE FOR
INJUNCTION BUT SEEKS TO SUPPORT IT AS ONE FOR DECLARATORY JUDGMENT,
HOPING THEREBY TO AVOID BOTH THE THREE-JUDGE COURT REQUIREMENT AND THE
NECESSITY FOR PROOF OF THREATENED INJURY.  WHETHER DECLARATORY RELIEF
IS APPROPRIATE UNDER THE CIRCUMSTANCES OF THIS CASE APPARENTLY WAS NOT
CONSIDERED BY EITHER OF THE COURTS BELOW.  BUT THAT INQUIRY IS ONE
WHICH EVERY GRANT OF THIS REMEDY MUST SURVIVE. 

THE DECLARATORY JUDGMENT ACT OF 1934, NOW 28 U.S.C. SEC. 2201, STYLED
"CREATION OF REMEDY," PROVIDES THAT IN A CASE OF ACTUAL CONTROVERSY A
COMPETENT COURT MAY "DECLARE THE RIGHTS AND OTHER LEGAL RELATIONS" OF A
PARTY "WHETHER OR NOT FURTHER RELIEF IS OR COULD BE SOUGHT."  THIS IS
AN ENABLING ACT, WHICH CONFERS A DISCRETION ON THE COURTS RATHER THAN
ABSOLUTE RIGHT UPON THE LITIGANT. 

PREVIOUS TO ITS ENACTMENT THERE WERE RESPONSIBLE EXPRESSIONS OF DOUBT
THAT CONSTITUTIONAL LIMITATIONS ON FEDERAL JUDICIAL POWER WOULD PERMIT
ANY FEDERAL DECLARATORY JUDGMENT PROCEDURE.  CF. LIBERTY WAREHOUSE CO.
V. GRANNIS, 273 U.S. 70; WILLING V. CHICAGO AUDITORIUM ASSN., 277 U.S.
274; ARIZONA V. CALIFORNIA, 283 U.S. 423; PIEDMONT & N.R. CO. V. UNITED
STATES, 280 U.S. 469.  FINALLY, AS A PRACTICE EXTENDED IN THE STATES,
WE REVIEWED A DECLARATORY JUDGMENT RENDERED BY A STATE COURT AND HELD
THAT A CONTROVERSY WHICH WOULD BE JUSTICIABLE IN THIS COURT IF
PRESENTED IN A SUIT FOR INJUNCTION IS NOT THE LESS SO BECAUSE THE
RELIEF WAS DECLARATORY.  NASHVILLE, C. & ST. L.R. CO. V. WALLACE, 288
U.S. 249.  ENCOURAGED BY THIS AND GUIDED BY THE EXPERIENCE OF THE
THIRTY-FOUR STATES THAT HAD ENACTED SUCH LAWS, THE SENATE JUDICIARY
COMMITTEE RECOMMENDED AN ADAPTATION OF THE PRINCIPLE TO FEDERAL
PRACTICE.  ITS ENABLING CLAUSE WAS NARROWER THAN THAT OF THE UNIFORM
ACT ADOPTED IN 1921 BY THE COMMISSIONERS ON UNIFORM STATE LAWS, WHICH
GAVE COMPREHENSIVE POWER TO DECLARE RIGHTS, STATUS AND OTHER LEGAL
RELATIONS.  THE FEDERAL ACT OMITS STATUS AND LIMITS THE DECLARATION TO
CASES OF ACTUAL CONTROVERSY.  (FN3) 

THIS ACT WAS ADJUDGED CONSTITUTIONAL ONLY BY INTERPRETING IT TO
CONFINE THE DECLARATORY REMEDY WITHIN CONVENTIONAL "CASE OR
CONTROVERSY" LIMITS.  IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297
U.S. 288, 325, THE COURT SAID, "THE ACT OF JUNE 14, 1934, PROVIDING FOR
DECLARATORY JUDGMENTS, DOES NOT ATTEMPT TO CHANGE THE ESSENTIAL
REQUISITES FOR THE EXERCISE OF JUDICIAL POWER" WHICH STILL WAS TO BE
TESTED BY SUCH ESTABLISHED PRINCIPLES AS THAT "THE JUDICIAL POWER DOES
NOT EXTEND TO THE DETERMINATION OF ABSTRACT QUESTIONS" AND THAT "CLAIMS
BASED MERELY UPON 'ASSUMED POTENTIAL INVASIONS' OF RIGHTS ARE NOT
ENOUGH TO WARRANT JUDICIAL INTERVENTION." 

IN AETNA LIFE INSURANCE CO. V. HAWORTH, 300 U.S. 227, MR. CHIEF
JUSTICE HUGHES USED THE WHOLE CATALOGUE OF FAMILIAR PHRASES TO DEFINE
AND DELIMIT THE MEASURE OF THIS NEW REMEDY.  IF ITS METES AND BOUNDS
ARE NOT CLEARLY MARKED, IT IS BECAUSE HIS AVAILABLE VERBAL MARKERS ARE
THEMSELVES ELASTIC, INCONSTANT AND IMPRECISE.  IT APPLIES, HE POINTS
OUT, ONLY TO "CASES AND CONTROVERSIES IN THE CONSTITUTIONAL SENSE" OF A
NATURE "CONSONANT WITH THE EXERCISE OF THE JUDICIAL FUNCTION" AND
"APPROPRIATE FOR JUDICIAL DETERMINATION."  EACH MUST PRESENT A
"JUSTICIABLE CONTROVERSY" AS DISTINGUISHED FROM "A DIFFERENCE OR
DISPUTE OF A HYPOTHETICAL OR ABSTRACT CHARACTER  ...  .  THE
CONTROVERSY MUST BE DEFINITE AND CONCRETE, TOUCHING THE LEGAL RELATIONS
OF PARTIES HAVING ADVERSE LEGAL INTERESTS  ...  .  IT MUST BE A REAL
AND SUBSTANTIAL CONTROVERSY ADMITTING OF SPECIFIC RELIEF THROUGH A
DECREE OF A CONCLUSIVE CHARACTER, AS DISTINGUISHED FROM AN OPINION
ADVISING WHAT THE LAW WOULD BE UPON A HYPOTHETICAL STATE OF FACTS." 
THE RELIEF IS AVAILABLE ONLY FOR A "CONCRETE CASE ADMITTING OF AN
IMMEDIATE AND DEFINITIVE DETERMINATION OF THE LEGAL RIGHTS OF THE
PARTIES."  ID., AT 240, 241. 

OTHER SOURCES HAVE STATED RELEVANT LIMITATIONS.  THE SENATE JUDICIARY
COMMITTEE REPORT REGARDED THE 1,200 AMERICAN DECISIONS THERETOFORE
RENDERED ON THE SUBJECT AS ESTABLISHING THAT "THE ISSUE MUST BE REAL,
THE QUESTION PRACTICAL AND NOT ACADEMIC, AND THE DECISION MUST FINALLY
SETTLE AND DETERMINE THE CONTROVERSY."  (FN4)  INDEED THE UNIFORM ACT,
UNLIKE THE FEDERAL ACT, EXPRESSLY DECLARES THE DISCRETION OF THE COURT
TO REFUSE A DECREE THAT WOULD NOT "TERMINATE THE UNCERTAINTY OR
CONTROVERSY GIVING RISE TO THE PROCEEDING."  IN RECOMMENDING RULE 57 OF
THE FEDERAL RULES OF CIVIL PROCEDURE, IN ORDER TO PROVIDE PROCEDURES
FOR THE DECLARATORY DECREE, THE COMMITTEE NOTED "A DECLARATION MAY NOT
BE RENDERED IF A SPECIAL STATUTORY PROCEEDING HAS BEEN PROVIDED FOR THE
ADJUDICATION OF SOME SPECIAL TYPE OF CASE  ...  ."  (FN5) 

BUT WHEN ALL OF THE AXIOMS HAVE BEEN EXHAUSTED AND ALL WORDS OF
DEFINITION HAVE BEEN SPENT, THE PROPRIETY OF DECLARATORY RELIEF IN A
PARTICULAR CASE WILL DEPEND UPON A CIRCUMSPECT SENSE OF ITS FITNESS
INFORMED BY THE TEACHINGS AND EXPERIENCE CONCERNING THE FUNCTIONS AND
EXTENT OF FEDERAL JUDICIAL POWER.  WHILE THE COURTS SHOULD NOT BE
RELUCTANT OR NIGGARDLY IN GRANTING THIS RELIEF IN THE CASES FOR WHICH
IT WAS DESIGNED, THEY MUST BE ALERT TO AVOID IMPOSITION UPON THEIR
JURISDICTION THROUGH OBTAINING FUTILE OR PREMATURE INTERVENTIONS,
ESPECIALLY IN THE FIELD OF PUBLIC LAW.  A MAXIMUM OF CAUTION IS
NECESSARY IN THE TYPE OF LITIGATION THAT WE HAVE HERE, WHERE A RULING
IS SOUGHT THAT WOULD REACH FAR BEYOND THE PARTICULAR CASE.  SUCH
DIFFERENCES OF OPINION OR CONFLICTS OF INTEREST MUST BE "RIPE FOR
DETERMINATION" AS CONTROVERSIES OVER LEGAL RIGHTS.  THE DISAGREEMENT
MUST NOT BE NEBULOUS OR CONTINGENT BUT MUST HAVE TAKEN ON FIXED AND
FINAL SHAPE SO THAT A COURT CAN SEE WHAT LEGAL ISSUES IT IS DECIDING,
WHAT EFFECT ITS DECISION WILL HAVE ON THE ADVERSARIES, AND SOME USEFUL
PURPOSE TO BE ACHIEVED IN DECIDING THEM. 

THE COMPLAINANT IN THIS CASE DOES NOT REQUEST AN ADJUDICATION THAT IT
HAS A RIGHT TO DO, OR TO HAVE, ANYTHING IN PARTICULAR.  IT DOES NOT ASK
A JUDGMENT THAT THE COMMISSION IS WITHOUT POWER TO ENTER ANY SPECIFIC
ORDER OR TAKE ANY CONCRETE REGULATORY STEP.  IT SEEKS SIMPLY TO
ESTABLISH THAT, AS PRESENTLY CONDUCTED, RESPONDENT'S CARRIAGE OF GOODS
BETWEEN POINTS WITHIN AS WELL AS WITHOUT UTAH IS ALL INTERSTATE
COMMERCE.  ONE NATURALLY ASKS, "SO WHAT?"  TO THAT ULTIMATE QUESTION NO
ANSWER IS SOUGHT. 

A MULTITUDE OF RIGHTS AND IMMUNITIES MAY BE PREDICATED UPON THE
PREMISE THAT A BUSINESS CONSISTS OF INTERSTATE COMMERCE.  WHAT ARE THE
SPECIFIC ONES IN CONTROVERSY?  THE RECORD IS SILENT AND COUNSEL LITTLE
MORE ARTICULATE.  WE MAY SURMISE THAT THE PURPOSE TO BE SERVED BY A
DECLARATORY JUDGMENT IS ULTIMATELY THE SAME AS RESPONDENT'S EXPLANATION
OF THE PURPOSES OF THE INJUNCTION IT ORIGINALLY ASKED, WHICH IS "TO
GUARD AGAINST THE POSSIBILITY THAT SAID COMMISSION WOULD ATTEMPT TO
PREVENT RESPONDENT FROM OPERATING UNDER ITS CERTIFICATE FROM THE
INTERSTATE COMMERCE COMMISSION." 

IN THIS CONNECTION, WYCOFF CO. V. PUBLIC SERVICE COMMISSION, - UTAH -
, 227 P.2D 323 (1951), IS BROUGHT TO OUR ATTENTION.  FROM THIS IT
APPEARS THAT RESPONDENT AND ITS PREDECESSORS IN INTEREST LONG MADE IT A
PRACTICE TO OBTAIN FROM THE UTAH COMMISSION CERTIFICATES TO AUTHORIZE
THIS CARRIAGE OF FILM COMMODITIES BETWEEN POINTS IN UTAH.  BUT THE
SUPREME COURT OF UTAH, IN THE CITED CASE, SUSTAINED THE COMMISSION IN
DENYING SUCH AN APPLICATION UPON A FINDING THAT THE FIELD ALREADY WAS
ADEQUATELY SERVED.  WE ARE ALSO TOLD THAT THE COMMISSION FILED A
PETITION IN A UTAH STATE COURT TO ENJOIN RESPONDENT FROM OPERATING
BETWEEN A FEW SPECIFIED LOCATIONS WITHIN THE STATE, BUT THAT PROCESS
WAS NEVER SERVED AND NOTHING IN THE RECORD TELLS US WHAT HAS HAPPENED
TO THIS ACTION.  WE MAY CONJECTURE THAT RESPONDENT FEARS SOME FORM OF
ADMINISTRATIVE OR JUDICIAL ACTION TO PROHIBIT ITS SERVICE ON ROUTES
WHOLLY WITHIN THE STATE WITHOUT THE COMMISSION'S LEAVE.  WHAT
RESPONDENT ASKS IS THAT IT WIN ANY SUCH CASE BEFORE IT IS COMMENCED. 
EVEN IF RESPONDENT IS ENGAGED SOLELY IN INTERSTATE COMMERCE, WE CANNOT
SAY THAT THERE IS NOTHING WHATEVER THAT THE STATE MAY REQUIRE. 
EICHHOLZ V. COMMISSION, 306 U.S. 268, 273. 

A DECLARATORY JUDGMENT MAY BE THE BASIS OF FURTHER RELIEF NECESSARY
OR PROPER AGAINST THE ADVERSE PARTY (28 U.S.C. SEC. 2202).  THE
CARRIER'S IDEA SEEMS TO BE THAT IT CAN NOW ESTABLISH THE MAJOR PREMISE
OF AN EXEMPTION, NOT AS AN INCIDENT OF ANY PRESENT DECLARATION OF ANY
SPECIFIC RIGHT OR IMMUNITY, BUT TO HOLD IN READINESS FOR USE SHOULD THE
COMMISSION AT ANY FUTURE TIME ATTEMPT TO APPLY ANY PART OF A
COMPLICATED REGULATORY STATUTE TO IT.  IF THERE IS ANY MORE DEFINITE OR
CONTEMPORANEOUS PURPOSE TO THIS CASE, NEITHER THIS RECORD NOR THE
BRIEFS MAKE IT CLEAR TO US.  WE THINK THIS FOR SEVERAL REASONS EXCEEDS
ANY PERMISSIBLE DISCRETIONARY USE OF THE FEDERAL DECLARATORY JUDGMENT
ACT.    IN THE FIRST PLACE, THIS DISPUTE HAS NOT MATURED TO A POINT
WHERE WE CAN SEE WHAT, IF ANY, CONCRETE CONTROVERSY WILL DEVELOP.  IT
IS MUCH LIKE ASKING A DECLARATION THAT THE STATE HAS NO POWER TO ENACT
LEGISLATION THAT MAY BE UNDER CONSIDERATION BUT HAS NOT YET SHAPED UP
INTO AN ENACTMENT.  IF THERE IS ANY RISK OF SUFFERING PENALTY,
LIABILITY OR PROSECUTION, WHICH A DECLARATION WOULD AVOID, IT IS NOT
POINTED OUT TO US.  IF AND WHEN THE STATE COMMISSION TAKES SOME ACTION
THAT RAISES AN ISSUE OF ITS POWER, SOME FURTHER DECLARATION WOULD BE
NECESSARY TO ANY COMPLETE RELIEF.  THE PROPOSED DECREE CANNOT END THE
CONTROVERSY. 

NOR IS IT APPARENT THAT THE PRESENT PROCEEDING WOULD SERVE A USEFUL
PURPOSE IF AT SOME FUTURE DATE THE STATE UNDERTAKES REGULATION OF
RESPONDENT.  AFTER A SIFTING OF EVIDENCE AND A FINDING OF FACTS AS THEY
ARE TODAY, THERE IS NO ASSURANCE THAT CHANGES OF SIGNIFICANCE MAY NOT
TAKE PLACE BEFORE THE STATE DECIDES TO MOVE.  OF COURSE, THE REMEDY IS
NOT TO BE WITHHELD BECAUSE IT NECESSITATES WEIGHING CONFLICTING
EVIDENCE OR DECIDING ISSUES OF FACT AS WELL AS LAW.  THAT IS THE
PROVINCE OF COURTS.  AETNA LIFE INSURANCE CO. V. HAWORTH, SUPRA, AT
242, AND SEE PERKINS V. ELG, 307 U.S. 325; CURRIN V. WALLACE, 306 U.S.
1.  BUT WHEN THE REQUEST IS NOT FOR ULTIMATE DETERMINATION OF RIGHTS
BUT FOR PRELIMINARY FINDINGS AND CONCLUSIONS INTENDED TO FORTIFY THE
LITIGANT AGAINST FUTURE REGULATION, IT WOULD BE A RARE CASE IN WHICH
THE RELIEF SHOULD BE GRANTED.  CF. COFFMAN V. BREEZE CORPORATIONS,
INC., 323 U.S. 316. 

EVEN WHEN THERE IS NO INCIPIENT FEDERAL-STATE CONFLICT, THE
DECLARATORY JUDGMENT PROCEDURE WILL NOT BE USED TO PRE-EMPT AND
PREJUDGE ISSUES THAT ARE COMMITTED FOR INITIAL DECISION TO AN
ADMINISTRATIVE BODY OR SPECIAL TRIBUNAL ANY MORE THAN IT WILL BE USED
AS A SUBSTITUTE FOR STATUTORY METHODS OF REVIEW.  IT WOULD NOT BE
TOLERABLE, FOR EXAMPLE, THAT DECLARATORY JUDGMENTS ESTABLISH THAT AN
ENTERPRISE IS NOT IN INTERSTATE COMMERCE IN ORDER TO FORESTALL
PROCEEDINGS BY THE NATIONAL LABOR RELATIONS BOARD, THE INTERSTATE
COMMERCE COMMISSION OR MANY AGENCIES THAT ARE AUTHORIZED TO TRY AND
DECIDE SUCH AN ISSUE IN THE FIRST INSTANCE.  CF. MYERS V. BETHLEHEM
SHIPBUILDING CORP., 303 U.S. 41, ECCLES V. PEOPLES BANK, 333 U.S. 426. 
SEE COLEGROVE V. GREEN, 328 U.S. 549.  RESPONSIBILITY FOR EFFECTIVE
FUNCTIONING OF THE ADMINISTRATIVE PROCESS CANNOT BE THUS TRANSFERRED
FROM THE BODIES IN WHICH CONGRESS HAS PLACED IT TO THE COURTS. 

BUT, AS THE DECLARATORY PROCEEDING IS HERE INVOKED, IT IS EVEN LESS
APPROPRIATE BECAUSE, IN ADDITION TO FORECLOSING AN ADMINISTRATIVE BODY,
IT IS INCOMPATIBLE WITH A PROPER FEDERAL-STATE RELATIONSHIP.  THE
CARRIER, BEING IN SOME DISAGREEMENT WITH THE STATE COMMISSION, RUSHED
INTO FEDERAL COURT TO GET A DECLARATION WHICH EITHER IS INTENDED IN
WAYS NOT DISCLOSED TO TIE THE COMMISSION'S HANDS BEFORE IT CAN ACT OR
IT HAS NO PURPOSE AT ALL. 

DECLARATORY PROCEEDINGS IN THE FEDERAL COURTS AGAINST STATE OFFICIALS
MUST BE DECIDED WITH REGARD FOR THE IMPLICATIONS OF OUR FEDERAL
SYSTEM.  STATE ADMINISTRATIVE BODIES HAVE THE INITIAL RIGHT TO REDUCE
THE GENERAL POLICIES OF STATE REGULATORY STATUTES INTO CONCRETE ORDERS
AND THE PRIMARY RIGHT TO TAKE EVIDENCE AND MAKE FINDINGS OF FACT.  IT
IS THE STATE COURTS WHICH HAVE THE FIRST AND THE LAST WORD AS TO THE
MEANING OF STATE STATUTES AND WHETHER A PARTICULAR ORDER IS WITHIN THE
LEGISLATIVE TERMS OF REFERENCE SO AS TO MAKE IT THE ACTION OF THE
STATE.  WE HAVE DISAPPROVED ANTICIPATORY DECLARATIONS AS TO STATE
REGULATORY STATUTES, EVEN WHERE THE CASE ORIGINATED IN AND WAS
ENTERTAINED BY COURTS OF THE STATE AFFECTED.  ALABAMA STATE FEDERATION
OF LABOR V. MCADORY, 325 U.S. 450.  ANTICIPATORY JUDGMENT BY A FEDERAL
COURT TO FRUSTRATE ACTION BY A STATE AGENCY IS EVEN LESS TOLERABLE TO
OUR FEDERALISM.  IS THE DECLARATION CONTEMPLATED HERE TO BE RES
JUDICATA, SO THAT THE COMMISSION CANNOT HEAR EVIDENCE AND DECIDE ANY
MATTER FOR ITSELF?  IF SO, THE FEDERAL COURT HAS VIRTUALLY LIFTED THE
CASE OUT OF THE STATE COMMISSION BEFORE IT COULD BE HEARD.  IF NOT, THE
FEDERAL JUDGMENT SERVES NO USEFUL PURPOSE AS A FINAL DETERMINATION OF
RIGHTS. 

THE PROCEDURES OF REVIEW USUALLY AFFORD AMPLE PROTECTION TO A CARRIER
WHOSE FEDERAL RIGHTS ARE ACTUALLY INVADED, AND THERE ARE REMEDIES FOR
THREATENED IRREPARABLE INJURIES.  STATE COURTS ARE BOUND EQUALLY WITH
THE FEDERAL COURTS BY THE FEDERAL CONSTITUTION AND LAWS.  ULTIMATE
RECOURSE MAY BE HAD TO THIS COURT BY CERTIORARI IF A STATE COURT HAS
ALLEGEDLY DENIED A FEDERAL RIGHT. 

IN THIS CASE, AS IN MANY ACTIONS FOR DECLARATORY JUDGMENT, THE
REALISTIC POSITION OF THE PARTIES IS REVERSED.  (FN6)  THE PLAINTIFF IS
SEEKING TO ESTABLISH A DEFENSE AGAINST A CAUSE OF ACTION WHICH THE
DECLARATORY DEFENDANT MAY ASSERT IN THE UTAH COURTS.  RESPONDENT HERE
HAS SOUGHT TO WARD OFF POSSIBLE ACTION OF THE PETITIONERS BY SEEKING A
DECLARATORY JUDGMENT TO THE EFFECT THAT HE WILL HAVE A GOOD DEFENSE
WHEN AND IF THAT CAUSE OF ACTION IS ASSERTED.  WHERE THE COMPLAINT IN
AN ACTION FOR DECLARATORY JUDGMENT SEEKS IN ESSENCE TO ASSERT A DEFENSE
TO AN IMPENDING OR THREATENED STATE COURT ACTION, IT IS THE CHARACTER
OF THE THREATENED ACTION, AND NOT OF THE DEFENSE, WHICH WILL DETERMINE
WHETHER THERE IS FEDERAL-QUESTION JURISDICTION IN THE DISTRICT COURT. 
IF THE CAUSE OF ACTION, WHICH THE DECLARATORY DEFENDANT THREATENS TO
ASSERT, DOES NOT ITSELF INVOLVE A CLAIM UNDER FEDERAL LAW, IT IS
DOUBTFUL IF A FEDERAL COURT MAY ENTERTAIN AN ACTION FOR A DECLARATORY
JUDGMENT ESTABLISHING A DEFENSE TO THAT CLAIM.  THIS IS DUBIOUS EVEN
THOUGH THE DECLARATORY COMPLAINT SETS FORTH A CLAIM OF FEDERAL RIGHT,
IF THAT RIGHT IS IN REALITY IN THE NATURE OF A DEFENSE TO A THREATENED
CAUSE OF ACTION.  FEDERAL COURTS WILL NOT SEIZE LITIGATIONS FROM STATE
COURTS MERELY BECAUSE ONE, NORMALLY A DEFENDANT, GOES TO FEDERAL COURT
TO BRING HIS FEDERAL-LAW DEFENSE BEFORE THE STATE COURT BEGINS THE CASE
UNDER STATE LAW.  TENNESSEE V. UNION & PLANTERS' BANK, 152 U.S. 454;
THE FAIR V. KOHLER DIE & SPECIALTY CO., 228 U.S. 22; TAYLOR V.
ANDERSON, 234 U.S. 74. 

SINCE THIS CASE SHOULD BE DISMISSED IN ANY EVENT, IT IS NOT NECESSARY
TO DETERMINE WHETHER, ON THIS RECORD, THE ALLEGED CONTROVERSY OVER AN
ACTION THAT MAY BE BEGUN IN STATE COURT WOULD BE MAINTAINABLE UNDER THE
HEAD OF FEDERAL-QUESTION JURISDICTION.  BUT WE ADVERT TO DOUBTS UPON
THAT SUBJECT TO INDICATE THE INJURY THAT WOULD BE NECESSARY IF THE CASE
CLEARLY RESTED MERELY ON THREATENED SUIT IN STATE COURT, AS, FOR ALL WE
CAN LEARN, IT MAY. 

WE CONCLUDE THAT THIS SUIT CANNOT BE ENTERTAINED AS ONE FOR
INJUNCTION AND SHOULD NOT BE CONTINUED AS ONE FOR A DECLARATORY
JUDGMENT.  THE JUDGMENT BELOW SHOULD BE REVERSED AND MODIFIED TO DIRECT
THAT THE ACTION BE DISMISSED.  REVERSED AND SO ORDERED. 

FN1  195 F.2D 252. 

FN2  343 U.S. 975. 

FN3  SEE 28 U.S.C. SEC. 2201. 

FN4  S. REP. NO. 1005, 73RD CONG., 2D SESS., P. 6, MAY 10, 1934;
BORCHARD, DECLARATORY JUDGMENTS (2D ED. 1941), 1043, 1048. 

FN5  BORCHARD, OP. CIT., 1042. 

FN6  SEE, DEVELOPMENTS IN THE LAW - DECLARATORY JUDGMENTS, 62 HARV.
L. REV. 787, 802. 

MR. JUSTICE REED, CONCURRING. 

THE RECORD, ALTHOUGH UNCERTAIN AND UNSATISFACTORY, CONVINCES ME THAT
A SUIT WAS FILED IN THE STATE COURT BY THE PUBLIC SERVICE COMMISSION OF
UTAH.  THIS STATE SUIT EVIDENTLY SOUGHT TO PREVENT RESPONDENT FROM
TRANSPORTING MOTION PICTURE FILM AND NEWSREELS BETWEEN POINTS AND
PLACES WITHIN THE STATE OF UTAH.  THIS IS THE PORTION OF TRANSPORTATION
BETWEEN OUT-OF-STATE POINTS AND MOTION PICTURE EXHIBITORS WITHIN UTAH
THAT RAISES THE QUESTION AS TO THE AUTHORITY OF RESPONDENT TO OPERATE
UNDER THE INTERSTATE COMMERCE COMMISSION CERTIFICATE.  THE FILMS ARE
UNLOADED AT SALT LAKE CITY, WHERE THEY ARE PREPARED FOR EXHIBITION, AND
STORED BY THE OWNERS UNTIL ORDERED OUT TO THE EXHIBITION POINTS.  THEY
ARE THEN AGAIN LOADED ON RESPONDENT'S TRUCKS AND DELIVERED TO THE
EXHIBITORS.  IF THIS FINAL PART OF THE TRANSPORTATION CONTINUES THE
INTERSTATE COMMERCE, RESPONDENT WOULD BE FREE TO OPERATE WITHOUT
FURTHER AUTHORITY FROM THE UTAH COMMISSION.  IF IT IS INTRASTATE
COMMERCE, RESPONDENT WOULD NEED FURTHER AUTHORITY FROM UTAH.  IT WAS
APPARENTLY TO DETERMINE THIS QUESTION THAT THE UTAH COMMISSION FILED
ITS SUIT IN THE STATE COURT.  NO PROCESS WAS SERVED.  THEREAFTER
RESPONDENT INSTITUTED THIS PROCEEDING FOR A DECLARATORY JUDGMENT. 

THE AUTHORITY FOR THIS LITIGATION IS THE DECLARATORY JUDGMENT ACT OF
1934, 28 U.S.C. SEC. 2201.  THIS PROVIDES FOR A JUDGMENT DECLARING "THE
RIGHTS AND OTHER LEGAL RELATIONS OF ANY INTERESTED PARTY" IN CASES "OF
ACTUAL CONTROVERSY." 

THE ACT WAS INTENDED BY CONGRESS AS A MEANS FOR PARTIES IN SUCH
CONTROVERSIES AS THAT BETWEEN THIS INTERSTATE CARRIER AND THE UTAH
COMMISSION TO SETTLE THEIR LEGAL RESPONSIBILITIES AND POWERS WITHOUT
THE NECESSITY AND RISK OF VIOLATION OF THE RIGHTS OF ONE BY THE OTHER. 
THE CONTROVERSY HERE IS CLEAR AND DEFINITE.  A DECISION WOULD SETTLE
THE ISSUE THAT CREATES THE UNCERTAINTY AS TO THE PARTIES' RIGHTS.  SEE
AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227.  THE ACT INTENDED
OPERATIONS TO BE CONDUCTED IN THE LIGHT OF KNOWLEDGE RATHER THAN THE
DARKNESS OF IGNORANCE.  S. REP. NO. 1005, 73RD CONG., 2D SESS. 

HOWEVER, IT WAS RECOGNIZED THAT THE DECLARATORY JUDGMENT ACT
INTRODUCED A NEW METHOD FOR DETERMINING RIGHTS INTO THE BODY OF
EXISTING LAW.  THEREFORE THE LANGUAGE OF THE ACT WAS DELIBERATELY CAST
IN TERMS OF PERMISSIVE, RATHER THAN MANDATORY, AUTHORITY TO THE COURTS
TO TAKE COGNIZANCE OF PETITIONS SEEKING THIS NEW RELIEF.  (FN1)  THIS
ENABLES FEDERAL COURTS TO APPRAISE THE THREATENED INJURIES TO
COMPLAINANT, THE NECESSITY AND DANGER OF HIS ACTING AT HIS PERIL THOUGH
INCURRING HEAVY DAMAGES, THE ADEQUACY OF STATE OR OTHER REMEDIES,
PARTICULARLY IN CONTROVERSIES WITH ADMINISTRATIVE BODIES.  BUT EVEN IN
RESPECT TO CONTROVERSIES WITH ADMINISTRATIVE BODIES, THE DECLARATORY
JUDGMENT ACT EXISTS AS AN INSTRUMENT TO PROTECT THE CITIZEN AGAINST THE
DANGERS AND DAMAGES THAT MAY RESULT FROM HIS ERRONEOUS BELIEF AS TO HIS
RIGHTS UNDER STATE OR FEDERAL LAW.  GREAT LAKES CO. V. HUFFMAN, 319
U.S. 293, 300.  CF. SPECTOR MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101, 105;
SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602, 605.  IT IS A MATTER
OF DISCRETION WITH FEDERAL COURTS. 

THE USE OF THIS NEW METHOD OF SETTLEMENT WAS ILLUSTRATED A FEW YEARS
AGO IN AN IMPORTANT CASE DEALING WITH THE JURISDICTION OF THE NATIONAL
RAILROAD ADJUSTMENT BOARD.  (FN2)  THAT CASE INVOLVED A DISAGREEMENT
BETWEEN TWO DIVISIONS OF THE NATIONAL RAILROAD ADJUSTMENT BOARD AS TO
WHICH DIVISION HAD JURISDICTION OF DISPUTES INVOLVING YARDMASTERS.  WE
HELD THAT THE SETTLEMENT OF SUCH A JURISDICTIONAL DISPUTE CONCERNING AN
ADMINISTRATIVE AGENCY WAS A PROPER SUBJECT FOR A DECLARATORY JUDGMENT
WHERE THE CONTROVERSY RESULTED IN A COMPLETE STALEMATE.  HERE, THE
RECORD DOES NOT SHOW ANY UNUSUAL DANGER OF LOSS OR DAMAGE TO
RESPONDENT, A SUIT HAD ALREADY BEEN FILED AND THE RECORD SHOWS NO
REASON WHY ITS RESULT WOULD NOT SETTLE THIS CONTROVERSY.  BECAUSE OF
THESE CIRCUMSTANCES, I CONCUR WITH THE REVERSAL OF THE JUDGMENT. 

FN1  H.R. REP. NO. 1264, 73RD CONG., 2D SESS., P. 2; BORCHARD,
DECLARATORY JUDGMENTS (2D ED. 1941), 312; BRILLHART V. EXCESS INSURANCE
CO., 316 U.S. 491, 494. 

FN2  ORDER OF CONDUCTORS V. SWAN, 329 U.S. 520. 

MR. JUSTICE DOUGLAS, DISSENTING. 

RESPONDENTS HOLD A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
FROM THE INTERSTATE COMMERCE COMMISSION FOR THE TRANSPORTATION OF
MOTION PICTURE FILMS AND NEWSREELS FROM SALT LAKE CITY, UTAH, TO POINTS
IN UTAH, IDAHO, AND MONTANA.  THEIR TRANSPORTATION TO UTAH POINTS IS
INTERSTATE COMMERCE ACCORDING TO THE COURT OF APPEALS; AND WITH THAT
CONCLUSION I AGREE SINCE THE MOVEMENT IN UTAH IS PART OF A CONTINUING
INTERSTATE STREAM.  THE THREAT OF INTERFERENCE WITH THAT INTERSTATE
ACTIVITY BY THE UTAH PUBLIC SERVICE COMMISSION IS CLEAR AND IMMEDIATE. 
FIRST.  THE UTAH COMMISSION BROUGHT SUIT TO ENJOIN THOSE INTERSTATE
ACTIVITIES AND THAT SUIT IS NOW PENDING IN THE UTAH COURT.  SECOND. 
THE COMMISSION'S ANSWER IN THE DISTRICT COURT DENIED THAT IT WAS
INTERFERING WITH INTERSTATE COMMERCE, NOT BECAUSE IT DID NOT INTEND TO
PREVENT RESPONDENT FROM OPERATING, BUT ON THE GROUND THAT THE
OPERATIONS WERE DEEMED TO BE INTRASTATE COMMERCE AND THEREFORE SUBJECT
TO ITS REGULATION.  SIMILARLY, THE DISTRICT COURT'S FINDING THAT THERE
WAS NO INTERFERENCE WITH INTERSTATE COMMERCE WAS BASED ON AN ACCEPTANCE
OF THE COMMISSION'S CONTENTIONS AS TO THE NATURE OF RESPONDENT'S
BUSINESS.  THIRD.  IN THEIR BRIEF HERE PETITIONERS ASSERT THAT THE UTAH
COMMISSION "WILL PREVENT THE RESPONDENT FROM CONDUCTING" THIS BUSINESS
"UNLESS AND UNTIL HE IS AUTHORIZED TO DO SO BY APPROPRIATE
ADMINISTRATIVE ORDER" OF THE UTAH COMMISSION, SINCE IN THE COMMISSION'S
VIEW THE TRANSPORTATION IS IN INTRASTATE COMMERCE. 

THAT FOR ME IS THREAT ENOUGH.  MOREOVER, UTAH IS NOT ATTEMPTING TO
REGULATE A PHASE OF INTERSTATE BUSINESS THAT IS WITHIN THE REACH OF A
STATE'S POLICE POWER.  SHE IS ENDEAVORING TO MAKE RESPONDENT OBTAIN A
PERMIT TO DO AN INTERSTATE BUSINESS FOR WHICH THE RESPONDENT ALREADY
HOLDS A FEDERAL PERMIT, UNDER THREAT THAT UNLESS HE OBTAINS A UTAH
PERMIT, UTAH WILL STOP HIM FROM CONDUCTING THE INTERSTATE BUSINESS. 
THAT IS AN ATTEMPT TO REGULATE IN A FIELD PRE-EMPTED BY THE CONGRESS
UNDER THE MOTOR CARRIER ACT (49 U.S.C. SECS. 301 ET SEQ.).  THAT KIND
OF REGULATION IS PRECLUDED BY OUR DECISION IN BUCK V. KUYKENDALL, 267
U.S. 307.    THUS THE CONTROVERSY IS DEFINITE AND CONCRETE AND INVOLVES
LEGAL INTERESTS OF ADVERSE PARTIES.  THE TEST LAID DOWN FOR DECLARATORY
JUDGMENTS BY AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, IS THUS
SATISFIED.  I HAVE SAID ENOUGH TO SHOW THAT THE JUDGES WHO HEARD THIS
CASE BELOW KNEW THAT THEY WERE DEALING WITH A LIVE, ACTIVE CONTEST THAT
THREATENED SERIOUS CONSEQUENCES TO RESPONDENT, NOT WITH A HYPOTHETICAL
QUESTION THAT MIGHT HAVE PRACTICAL REPERCUSSIONS ONLY IN THE REMOTE
FUTURE. 

THE FACT THAT THE UTAH COURT CAN ADJUDICATE THE CONTROVERSY IN THE
PENDING STATE CASE IS NO REASON WHY THE FEDERAL COURT SHOULD STAY ITS
HAND.  THERE IS NO FEDERAL POLICY INDICATING THAT THIS IS A FIELD IN
WHICH FEDERAL COURTS SHOULD BE RELUCTANT TO INTERVENE.  THAT WAS THE
CASE IN GREAT LAKES DREDGE & DOCK CO. V. HUFFMAN, 319 U.S. 293, WHERE
WE HELD THAT DECLARATORY RELIEF THAT A STATE TAX WAS UNCONSTITUTIONAL
SHOULD BE DENIED BY THE FEDERAL COURT.  THE BASIS OF OUR RULING WAS
THAT SINCE CONGRESS HAD PROHIBITED THE FEDERAL COURTS FROM ENJOINING
STATE TAXES WHERE AN ADEQUATE REMEDY WAS AVAILABLE IN THE STATE COURTS
(CF. HILLSBOROUGH V. CROMWELL, 326 U.S. 620, 623), DECLARATORY RELIEF
SHOULD ALSO BE WITHHELD.  CONGRESS HERE HAS GIVEN NO INDICATION THAT
THE INTEGRITY OF PERMITS GRANTED INTERSTATE CARRIERS BY THE INTERSTATE
COMMERCE COMMISSION SHOULD BE PROTECTED IN THE STATE RATHER THAN IN THE
FEDERAL COURTS.  ALL THE PRESUMPTIONS ARE CONTRARY.  THE BASIS OF THE
JURISDICTION OF THE DISTRICT COURT CREATED BY CONGRESS IS CLEAR.  THE
CASE "ARISES UNDER THE CONSTITUTION" AND "LAWS" OF THE UNITED STATES. 
28 U.S.C. SEC. 1331.  IT IS PROPER THAT THE FEDERAL COURT, ABSENT SUCH
SPECIAL CIRCUMSTANCES AS THE HUFFMAN CASE PRESENTED, EXERCISE THAT
JURISDICTION AND PROTECT THE FEDERAL RIGHT. 

THE FAILURE TO DO IT HERE RELEGATES THE DECLARATORY JUDGMENT TO A LOW
ESTATE. 
..END :







KING V. UNITED STATES 344 U.S. 254 


NO. 9.  ARGUED OCTOBER 15, 1952 - DECIDED DECEMBER 22, 1952 - 101 F.
SUPP. 941, AFFIRMED. 


1.  IN PRESCRIBING INTRASTATE FREIGHT RATES FOR RAILROADS UNDER SEC.
13(4) OF THE INTERSTATE COMMERCE ACT, THE INTERSTATE COMMERCE
COMMISSION MAY GIVE WEIGHT TO DEFICITS IN PASSENGER REVENUE.  PP. 260
267. 

(A)  UNDER SEC. 15A(2) OF THE INTERSTATE COMMERCE ACT AND THE
NATIONAL TRANSPORTATION POLICY OF 1940, THE COMMISSION MAY GIVE WEIGHT
TO PASSENGER REVENUE DEFICITS IN PRESCRIBING INTERSTATE FREIGHT RATES
TO MEET OVER-ALL REVENUE NEEDS.  PP. 263-264. 

(B)  THE SAME NATIONAL TRANSPORTATION POLICY APPLIES TO SEC. 13(4) AS
TO SEC. 15A(2).  WHICHEVER SECTION IS USED, THE SAME ECONOMIC
CONSIDERATIONS UNDERLIE THE RELATION BETWEEN FREIGHT RATES AND
PASSENGER DEFICITS, WHETHER INTERSTATE OR INTRASTATE.  P. 266. 

2.  THE FINDINGS OF THE COMMISSION WHICH ARE INVOLVED IN THIS
PROCEEDING ARE SUFFICIENT TO SUSTAIN THE COMMISSION'S ORDER PRESCRIBING
INTRASTATE FREIGHT RATES, FOR FLORIDA RAILROADS, WHICH WILL REFLECT THE
SAME INCREASES AS HAVE BEEN AUTHORIZED BY THE COMMISSION FOR COMPARABLE
INTERSTATE TRAFFIC.  PP. 267-276. 

(A)  NORTH CAROLINA V. UNITED STATES, 325 U.S. 507, DISTINGUISHED. 
PP. 270-274. 

(B)  TO PERMIT MATERIAL AND REPORTS WHICH WERE BEFORE THE COMMISSION
IN PRESCRIBING A NATIONWIDE INCREASE IN INTERSTATE FREIGHT RATES AND IN
FURTHER INCREASING INTERSTATE FREIGHT RATES FOR THE SOUTHERN TERRITORY
(INCLUDING FLORIDA) TO BE APPLIED UNDER SEC. 15A BUT NOT UNDER SEC.
13(4) WOULD BE CONTRARY TO THE COMPLEMENTARY NATURE OF THOSE SECTIONS. 
PP. 272-273. 

(C)  THE COMMISSION'S JURISDICTION OVER INTRASTATE RATES IS NOT
LIMITED TO CASES WHERE THOSE RATES ARE CONFISCATORY.  IT IS SUFFICIENT
THAT THE EXISTING INTRASTATE RATES CAUSE "UNJUST DISCRIMINATION AGAINST
INTERSTATE OR FOREIGN COMMERCE."  P. 274. 

(D)  WHERE THE COMMISSION SEEKS TO DEAL GENERALLY WITH RATES AND
REVENUES IN A LARGE AREA ON EVIDENCE TYPICAL OF THE AREA AS A WHOLE, IT
MAY PROCEED BY WAY OF A GENERAL ORDER SUPPORTED BY SUFFICIENT EVIDENCE
APPLICABLE TO THE WHOLE TERRITORY, BUT IT IS WELL TO LEAVE THE WAY OPEN
FOR MODIFICATIONS OF THAT GENERAL ORDER IN SPECIFIC SITUATIONS WHERE
THE GENERAL ORDER IS NOT JUSTLY APPLICABLE.  PP. 275-276. 

KING ET AL., CONSTITUTING THE FLORIDA RAILROAD AND PUBLIC UTILITIES
COMMISSION, V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF FLORIDA. 

A THREE-JUDGE DISTRICT COURT SUSTAINED AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION PRESCRIBING INTRASTATE FREIGHT RATES FOR FLORIDA
RAILROADS.  101 F. SUPP. 941.  ON APPEAL TO THIS COURT UNDER 28 U.S.C.
(SUPP. V) SECS. 1253, 2101(B), AFFIRMED, P. 276. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS HERE ARE:  (1) WHETHER THE INTRASTATE COMMERCE
COMMISSION, IN PRESCRIBING INTRASTATE FREIGHT RATES FOR RAILROADS UNDER
SEC. 13(4) OF THE INTERSTATE COMMERCE ACT, (FN1) MAY GIVE WEIGHT TO
DEFICITS IN PASSENGER REVENUE; AND (2) WHETHER THE FINDINGS OF THE
COMMISSION WHICH ARE INVOLVED IN THIS PROCEEDING ARE SUFFICIENT TO
SUSTAIN THE RATES IT HAS PRESCRIBED.  OUR ANSWER TO EACH QUESTION IS IN
THE AFFIRMATIVE. 

THIS IS AN ACTION AGAINST THE UNITED STATES BROUGHT IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, UNDER 28
U.S.C. (SUPP. V) SEC. 1336, BY APPELLANTS "AS AND CONSTITUTING THE
FLORIDA RAILROAD AND PUBLIC UTILITIES COMMISSION."  THEY ASK THE COURT
TO ENJOIN, SET ASIDE AND ANNUL AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION REQUIRING FLORIDA RAILROADS TO ESTABLISH INTRASTATE FREIGHT
RATES WHICH WILL REFLECT THE SAME INCREASES AS HAVE BEEN AUTHORIZED BY
IT FOR COMPARABLE INTERSTATE TRAFFIC. 

THE UNDERLYING PROCEEDINGS ORIGINATED IN 1940.  THE INTERSTATE
COMMERCE COMMISSION THEN UNDERTOOK A NATIONWIDE INVESTIGATION OF
INTERSTATE RAILROAD FREIGHT RATES, UNDER SECS. 13(2) AND 15A(2) OF THE
INTERSTATE COMMERCE ACT, IN CONFORMITY WITH THE NATIONAL TRANSPORTATION
POLICY STATED IN SEC. 1 OF THE TRANSPORTATION ACT OF 1940.  (FN2)  THE
INVESTIGATION DEALT WITH PAST AND FUTURE FREIGHT AND PASSENGER
OPERATIONS, INTRASTATE AS WELL AS INTERSTATE.  A COMMITTEE OF
COOPERATING STATE COMMISSIONERS SAT WITH THE COMMISSION AND TOOK PART
IN ITS DELIBERATIONS.  MOUNTING RAILROAD OPERATING COSTS AND DECLINING
PASSENGER REVENUE LED THE COMMISSION, IN 1946, TO AUTHORIZE A
NATIONWIDE INCREASE OF 20% IN BASIC INTERSTATE FREIGHT RATES.  EX PARTE
NO. 162, INCREASED RAILWAY RATES, FARES, AND CHARGES, 1946, 264 I.C.C.
695, 266 I.C.C. 537.  (FN3) 

IN 1947, THE COMMISSION FOUND SUCH FURTHER INCREASES IN OPERATING
COSTS AND DECREASES IN PASSENGER REVENUE THAT IT AUTHORIZED AN
ADDITIONAL NATIONWIDE INTERIM INCREASE OF 10% IN INTERSTATE FREIGHT
RATES.  SOON IT RAISED THIS TO 20%.  IN A THIRD REPORT IT VARIED THE
PERCENTAGE IN DIFFERENT AREAS, WITH THE RESULT THAT IN THE SOUTHERN
TERRITORY, INCLUDING FLORIDA, THE INCREASE WAS 25%.  THE 1948 FINAL
REPORT CONFIRMED THIS 25% INCREASE.  EX PARTE NO. 166, INCREASED
FREIGHT RATES, 1947, 269 I.C.C. 33, 270 I.C.C. 81, 93, AND 403.  THE
COMMISSION'S ESTIMATES OF REVENUE CONTEMPLATED THE APPLICATION OF THE
INCREASED RATES TO INTRASTATE, AS WELL AS TO INTERSTATE,
TRANSPORTATION.  (FN4) THE REPORT CONCLUDES WITH THE STATEMENT THAT THE
"COMMITTEE OF COOPERATING STATE COMMISSIONERS  ... AUTHORIZE US TO
STATE THAT THEY CONCUR IN THE FOREGOING REPORT."  270 I.C.C. 403, 463. 

UPON PUBLICATION OF THESE REPORTS, THE RAILROADS ASKED THEIR
RESPECTIVE STATE AUTHORITIES TO AUTHORIZE COMPARABLE INCREASES IN
INTRASTATE RATES.  THE FLORIDA COMMISSION APPROVED MOST OF THE
INCREASES BUT DECLINED TO APPROVE THE FINAL INCREASE FROM 20% TO 25%.
(FN5) 

ON PETITION OF THE FLORIDA RAILROADS, THE INTERSTATE COMMERCE
COMMISSION UNDERTOOK ITS OWN INVESTIGATION OF FLORIDA INTRASTATE
RAILROAD RATES UNDER SEC. 13(3) AND (4) OF THE INTERSTATE COMMERCE ACT,
41 STAT. 484, 49 U.S.C. SEC. 13(3) AND (4).  A FULL HEARING WAS HAD
BEFORE A COMMISSIONER AND AN EXAMINER, FOLLOWED BY A HEARING UPON
EXCEPTIONS TO THE EXAMINER'S REPORT.  (FN6) THE COMMISSION RECOMMENDED
THAT INTRASTATE FREIGHT RATES BE ESTABLISHED "BETWEEN POINTS IN FLORIDA
WHICH WILL REFLECT THE SAME INCREASES AS ARE, AND FOR THE FUTURE MAY
BE, MAINTAINED AND RESPONDENTS (RAILROADS) ON LIKE INTERSTATE TRAFFIC
TO AND FROM FLORIDA, AND WITHIN FLORIDA UNDER OUR AUTHORIZATIONS IN EX
PARTE NO. 162 AND EX PARTE NO. 166  ...  ."  FINDING NO. 8, 278 I.C.C.
41, 73. 

THE INTERSTATE COMMERCE COMMISSION THEN GAVE THE FLORIDA COMMISSION A
FINAL OPPORTUNITY TO PERMIT THE INCREASED RATES TO BE APPLIED TO
INTRASTATE TRANSPORTATION.  UPON THE LATTER'S FAILURE TO ACT, THE
INTERSTATE COMMERCE COMMISSION ORDERED THE RAILROADS "THEREAFTER TO
MAINTAIN AND APPLY FOR THE INTRASTATE TRANSPORTATION OF FREIGHT FROM
AND TO POINTS IN THE STATE OF FLORIDA FREIGHT RATES AND CHARGES WHICH
SHALL BE NO LOWER THAN THE APPROVED RATES AND CHARGES, OR ON THE
APPROVED RATE BASES, AS PROVIDED IN SAID REPORT."  (FN7) 

BEFORE THAT ORDER TOOK EFFECT, THIS ACTION WAS FILED.  A THREE-JUDGE
DISTRICT COURT WAS CONVENED.  28 U.S.C. (SUPP. V) SEC. 2325.  TWO SHORT
LINE RAILROADS AND NUMEROUS SHIPPERS INTERVENED AS PLAINTIFFS.  THE
INTERSTATE COMMERCE COMMISSION AND ALL CLASS I RAILROADS OPERATING IN
FLORIDA INTERVENED AS DEFENDANTS.  THE ENTIRE RECORD OF THE PROCEEDING
BEFORE THE COMMISSION, UNDER SEC. 13(4), WAS INTRODUCED.  THE COURT
SUSTAINED THE COMMISSION AND DISMISSED THE COMPLAINT.  101 F. SUPP.
941.  THAT JUDGMENT IS HERE ON APPEAL.  28 U.S.C. (SUPP. V) SECS. 1253,
2101(B). 

I. THE INTERSTATE COMMERCE COMMISSION IN PRESCRIBING INTRASTATE
FREIGHT RATES FOR RAILROADS UNDER SEC. 13(4) OF THE INTERSTATE COMMERCE
ACT MAY GIVE WEIGHT TO DEFICITS IN PASSENGER REVENUE. 

IN EX PARTE NO. 168, INCREASED FREIGHT RATES, 1948, 272 I.C.C. 695,
276 I.C.C. 9, THE COMMISSION REVIEWED THE CHANGING ATTITUDES IT HAS
ADOPTED CONCERNING THE ROLE OF PASSENGER DEFICITS AND FREIGHT RATES. 
IN SUCH CASES AS THE FIVE PER CENT CASE, 31 I.C.C. 351, THE COMMISSION
IN 1941 CONCLUDED THAT EACH CLASS OF SERVICE SHOULD COMPLETELY AND
INDEPENDENTLY PROVIDE ITS OWN PROPORTIONATE SHARE OF EXPENSES AND
PROFITS.  (FN8)  IN 1949 THE COMMISSION SAYS: 

"HOWEVER, BECAUSE OF CHANGED THEORIES ADOPTED BY CONGRESS IN THE
TRANSPORTATION ACT, 1920, AND BECAUSE AS A PRACTICAL MATTER THE
INCREASING DEGREE OF UNPROFITABLENESS OF THE PASSENGER TRAFFIC MENACED
THE CONTINUITY OF AN ADEQUATE NATIONAL SYSTEM OF TRANSPORTATION, WE
WERE FORCED TO A MORE COMPREHENSIVE VIEW OF THIS QUESTION.  WE OBSERVE,
ALSO, THAT AT THE TIME OF THOSE DECISIONS THE RAILROADS ENJOYED A
PRACTICAL MONOPOLY IN SUPPLYING TRANSPORTATION, BUT THAT SITUATION NO
LONGER EXISTS."  276 I.C.C. AT 34. 

CITING WITH APPROVAL ITS SIMILAR VIEWS IN EX PARTE NO. 103, FIFTEEN
PER CENT CASE, 1931, 178 I.C.C. 539, AND EX PARTE NO. 123, FIFTEEN PER
CENT CASE, 1937-1938, 226 I.C.C. 41, THE COMMISSION SUMMARIZES ITS
PRESENT POSITION AS FOLLOWS: 

"THESE CASES ARE TYPICAL OF OUR MORE RECENT HOLDINGS UPON THIS
QUESTION.  WHILE WE REGARD IT AS 'TRITE TO SAY THAT EACH PARTICULAR
SERVICE, COACH, SLEEPER, PARLOR CAR, AND HEAD END, SHOULD AS NEARLY AS
MAY BE PAY ITS OWN WAY AND RETURN A PROFIT' (EASTERN PASSENGER FARES IN
COACHES, 227 I.C.C. 17, 25), AND WE HAVE ACCEPTED THE CONTENTION THAT
THERE MAY BE TRAFFIC THAT SHOULD NOT BE BURDENED WITH A SHORTAGE OF
PASSENGER SERVICE RETURN (LIVESTOCK, WESTERN DISTRICT RATES, 190 I.C.C.
611, 629), YET, IF PASSENGER SERVICE INEVITABLY AND INESCAPABLY CANNOT
BEAR ITS DIRECT COSTS AND ITS SHARE OF JOINT OR INDIRECT COSTS, WE HAVE
FELT COMPELLED IN A GENERAL RATE CASE TO TAKE THE PASSENGER DEFICIT
INTO ACCOUNT IN ADJUSTMENT OF FREIGHT RATES AND CHARGES.  BOTH THE
FREIGHT AND PASSENGER SERVICES ARE ESSENTIAL, AND REVENUE LOSSES OR
DEFICITS ON THE ONE NECESSARILY MUST BE COMPENSATED BY EARNINGS ON THE
OTHER IF THE CARRIERS ARE TO CONTINUE OPERATIONS.  BOTH MAY BE
SUBJECTED TO REASONABLE RATES AND CHARGES TO PRODUCE THE FAIR AGGREGATE
RETURN, EVEN THOUGH THEREBY A HIGHER RATE OF RETURN MAY BE EXACTED FROM
THE ONE THAN FROM THE OTHER.  (PROPERTY OWNERS' COMMITTEE V. CHESAPEAKE
& O. RY. CO., 237 I.C.C. 549, 565.)"  ID., AT 35.  SEE ALSO, EX PARTE
87, REVENUES IN WESTERN DISTRICT, 113 I.C.C. 3, 23. 

THIS CHANGE OF POLICY WAS THE INEVITABLE CONSEQUENCE OF STEADILY
INCREASING PASSENGER OPERATING COSTS, TOGETHER WITH THE GROWTH OF
VIGOROUS COMPETITION FROM AUTOMOBILES AND OTHER FORMS OF TRANSPORTATION
WHICH MADE IT FUTILE TO COMPENSATE FOR THE PASSENGER DEFICITS BY
INCREASING PASSENGER RATES.  THE RAILROADS WERE FORCED TO ABANDON
PASSENGER MILEAGE, REDUCE SERVICE AND IMPROVE THEIR FACILITIES, WHILE
FIXING PASSENGER RATES AT A LEVEL AS ADEQUATE AS COMPETITION
PERMITTED.  (FN9) 

IN RECENT YEARS, A NATIONWIDE PASSENGER DEFICIT HAS BEEN OBVIOUS
EXCEPT DURING THE PEAK OF WARTIME PASSENGER TRAFFIC.  THE RATIO BETWEEN
PASSENGER OPERATING EXPENSE AND REVENUE HAS VARIED IN DIFFERENT AREAS
BUT HAS BEEN UNIFORMLY UNFAVORABLE TO THE RAILROADS.  (FN10) 

TRANSPORTATION POLICY OF 1940 (FN11) REFLECT THIS BROAD CONCEPT OF THE
UNITY OF THE NATION'S TRANSPORTATION SYSTEM.  THEY DIRECT THE
COMMISSION TO CONSIDER, AMONG OTHER THINGS, THE NEED, IN THE PUBLIC
INTEREST, OF ADEQUATE AND EFFICIENT RAILWAY TRANSPORTATION SERVICE AND
THE NEED OF REVENUES SUFFICIENT TO SUSTAIN SUCH SERVICE.  IT PERMEATES
SUCH GENERAL REVENUE PROCEEDINGS AS EX PARTE NOS. 162 AND 166, SUPRA.
IT LEAVES NO GROUND FOR A CLAIM THAT THE COMMISSION MAY NOT GIVE WEIGHT
TO PASSENGER REVENUE DEFICITS IN PRESCRIBING INTERSTATE FREIGHT RATES
TO MEET OVER-ALL REVENUE NEEDS.  SEE UNITED STATES V. LOUISIANA, 290
U.S. 70. 

THE QUESTION REMAINS WHETHER THAT COMMISSION MAY GIVE WEIGHT TO
DEFICITS IN PASSENGER REVENUE (EITHER INTERSTATE OR INTRASTATE) WHEN
PRESCRIBING INTRASTATE FREIGHT RATES UNDER SEC. 13(4).  IT IS
CONCEIVABLE THAT SOME CONSIDERATIONS PROPERLY GIVEN WEIGHT BY THE
COMMISSION IN PRESCRIBING INTERSTATE FREIGHT RATES IN A GENERAL REVENUE
PROCEEDING MIGHT NOT BE APPLICABLE EQUALLY TO TRANSPORTATION WITHIN A
PARTICULAR STATE. 

IN THE INSTANT CASE, HOWEVER, THERE IS NO SHOWING THAT THE CHARACTER
OF OPERATING CONDITIONS IN FLORIDA INTRASTATE PASSENGER TRAFFIC DIFFERS
SUBSTANTIALLY FROM THAT OF INTERSTATE PASSENGER OPERATIONS IN THE
SOUTHERN TERRITORY GENERALLY.  ON THE CONTRARY, THE COMMISSION OBSERVES
THAT: 

"INCREASED PASSENGER DEFICITS, BY REASON OF THE CONTINUING RISE IN
OPERATING EXPENSES AND THE GROWING USE OF OTHER FORMS OF
TRANSPORTATION, IS A CONDITION BEARING ALIKE UPON INTRASTATE AND
INTERSTATE RATES.  THERE IS HERE NO CLAIM OR SHOWING THAT THE PASSENGER
DEFICITS OF THE RESPONDENTS DO NOT RESULT FROM INTRASTATE AS WELL AS
INTERSTATE OPERATIONS, AND THE PASSENGER DEFICIT OF THE EAST COAST,
WHICH OPERATES ENTIRELY WITHIN FLORIDA, WOULD APPEAR TO INDICATE TO THE
CONTRARY. 

"THE RECORD AFFORDS NO JUSTIFICATION FOR A DIFFERENCE IN TREATMENT IN
THIS RESPECT (PASSENGER DEFICITS) BETWEEN FLORIDA INTRASTATE TRAFFIC,
ON THE ONE HAND, AND INTERSTATE TRAFFIC TO AND FROM FLORIDA, ON THE
OTHER HAND.  THE QUESTION OF PASSENGER DEFICITS IS A SERIOUS ONE FOR
BOTH CARRIERS AND SHIPPERS, AND WOULD BECOME EVEN MORE SERIOUS FOR
INTERSTATE SHIPPERS IF THIS BURDEN WERE IMPOSED ENTIRELY UPON THEM
RATHER THAN BEING SHARED ON A LIKE BASIS WITH INTRASTATE SHIPPERS ON
THE SAME LINES."  278 I.C.C. AT 67-68.  SEE OPINION BELOW, 101 F. SUPP.
AT 944. 

IT APPEARS FROM THE REPORT IN EX PARTE NO. 168, 276 I.C.C. AT 40,
THAT, IN 1948, THE PASSENGER SERVICE OPERATING RATIO FOR THE SOUTHERN
TERRITORY WAS 127.3% WHILE THE OPERATING RATIOS OF THE THREE PRINCIPAL
FLORIDA RAILROADS IN THAT YEAR WERE 120%, 127% AND 128%.  IN FLORIDA,
MOREOVER, THE DISCONTINUANCE OF RAILROAD PASSENGER SERVICE WOULD NOT
PERMIT THE DISCONTINUANCE OF HIGH-SPEED TRACKS AND EQUIPMENT BECAUSE OF
THE NEED FOR FAST FREIGHT SCHEDULES TO TRANSPORT PERISHABLE FRUITS AND
VEGETABLES FROM FLORIDA.  THE COMMISSION DEALT WITH THE FREIGHT AND
PASSENGER REVENUES AND PROPERTIES OF THE FLORIDA ROADS AS A WHOLE WHEN
DETERMINING THE NEED FOR INCREASES IN INTERSTATE FREIGHT RATES. 
NOTHING HAS BEEN DEMONSTRATED WHICH WOULD DEMAND DIFFERENT TREATMENT OF
THESE PROPERTIES IN RELATION TO THE INTRASTATE ACTIVITIES. 

THE COMMISSION ALSO FINDS THAT "THE FLORIDA INTRASTATE RATES (WITHOUT
THE 5% INCREASE)  ...  ARE ABNORMALLY LOW AND ARE NOT CONTRIBUTING
THEIR FAIR SHARE TO THE REVENUES REQUIRED BY RESPONDENTS (FLORIDA
RAILROADS) TO ENABLE THEM TO RENDER ADEQUATE AND EFFICIENT SERVICE AND
TO OPERATE PROFITABLY, AND THEREBY ACCOMPLISH THE PURPOSE OF THE
INTERSTATE COMMERCE ACT  ...  ."  FINDING NO. 5, 278 I.C.C. AT 72. 

IN THE INSTANT CASE THERE IS NO EVIDENCE WHICH WOULD REQUIRE THE
COMMISSION TO TREAT FLORIDA INTRASTATE RATES DIFFERENTLY FROM
INTERSTATE RATES IN SOUTHERN TERRITORY.  INSTEAD, THERE ARE FINDINGS
THAT IT WOULD CAUSE UNJUST DISCRIMINATION AGAINST INTERSTATE COMMERCE
IN FLORIDA IF THE INTRASTATE FREIGHT RATES ARE NOT INCREASED SO AS TO
REFLECT THE SAME INCREASE AS IS APPLIED BY THE COMMISSION TO LIKE
INTERSTATE TRAFFIC IN THE SOUTHERN TERRITORY.  SEE NOTE 13, INFRA. 

THE SAME NATIONAL TRANSPORTATION POLICY APPLIES TO SEC. 13(4) AS TO
SEC. 15A(2).  WHICHEVER SECTION IS USED, THE SAME ECONOMIC
CONSIDERATIONS UNDERLIE THE RELATION BETWEEN FREIGHT RATES AND
PASSENGER DEFICITS, WHETHER INTERSTATE OR INTRASTATE.  THIS WAS WELL
CONSIDERED THROUGHOUT THE OPINION OF THE COURT IN UNITED STATES V.
LOUISIANA, SUPRA.  IT WAS THERE SAID:    "THIS COURT HAS CONSISTENTLY
HELD THAT THIS SECTION (SEC. 13(4)) IS TO BE CONSTRUED IN THE LIGHT OF
SEC. 15A(2) AND AS SUPPLEMENTING IT, SO THAT THE FORBIDDEN
DISCRIMINATION AGAINST INTERSTATE COMMERCE BY INTRASTATE RATES INCLUDES
THOSE CASES IN WHICH DISPARITY OF THE LATTER RATES OPERATES TO THWART
THE BROAD PURPOSE OF SEC. 15A TO MAINTAIN AN EFFICIENT TRANSPORTATION
SYSTEM BY ENABLING THE CARRIERS TO EARN A FAIR RETURN.  SO CONSTRUED,
SEC. 13(4) CONFERS ON THE COMMISSION THE POWER TO RAISE INTRASTATE
RATES SO THAT THE INTRASTATE TRAFFIC MAY PRODUCE ITS FAIR SHARE OF THE
EARNINGS REQUIRED TO MEET MAINTENANCE AND OPERATING COSTS AND TO YIELD
A FAIR RETURN ON THE VALUE OF PROPERTY DEVOTED TO THE TRANSPORTATION
SERVICE, BOTH INTERSTATE AND INTRASTATE."  PP. 74-75. 

THIS WAS CONFIRMED IN FLORIDA V. UNITED STATES, 292 U.S. 1, 5-6. 

WE CONCLUDE THAT THERE IS NO REASON WHY THE COMMISSION MAY NOT GIVE
WEIGHT TO PASSENGER DEFICITS IN PRESCRIBING THE INTRASTATE FREIGHT
RATES IN FLORIDA, AS IT DOES IN PRESCRIBING INTERSTATE FREIGHT RATES
FOR THE SOUTHERN TERRITORY.  (FN12) 

II.  THE COMMISSION'S FINDINGS INVOLVED IN THIS PROCEEDING ARE
SUFFICIENT TO SUSTAIN THE RATES PRESCRIBED. 

SEVERAL OF THE COMMISSION'S FINDINGS WHICH LEND SUPPORT TO ITS ORDER
ARE PRINTED IN THE MARGIN.  (FN13)  ITS AUTHORITY TO PRESCRIBE THE
RATES NOW BEFORE US RESTS ON THE PROVISION, IN SEC. 13(4), THAT WHEN IT
FINDS THAT AN INTRASTATE RATE CAUSES "ANY UNDUE, UNREASONABLE, OR
UNJUST DISCRIMINATION AGAINST INTERSTATE OR FOREIGN COMMERCE  ...  " IT
SHALL PRESCRIBE SUCH RATE AS, IN ITS JUDGMENT, WILL REMOVE THE
DISCRIMINATION.  NOTE 1, SUPRA.  THE COMMISSION'S FINDING NO. 7 MEETS
THIS REQUIREMENT.  THE COMMISSION THERE FINDS THAT THE MAINTENANCE OF
THE EXISTING INTRASTATE RATES WITHIN FLORIDA "ON BASES LOWER THAN THOSE
HEREIN APPROVED CAUSES, AND IN THE FUTURE WILL CAUSE, (1) IN ALL
INSTANCES, UNJUST DISCRIMINATION AGAINST INTERSTATE COMMERCE  ...  ." 
278 I.C.C. AT 73.  IF SUPPORTED BY ADEQUATE SUBSIDIARY FINDINGS, THIS
ULTIMATE FINDING THUS SUSTAINS THE AUTHORITY OF THE COMMISSION AND THE
VALIDITY OF ITS ORDER.  (FN14)  NORTH CAROLINA V. UNITED STATES, 325
U.S. 507, 514; FLORIDA V. UNITED STATES, 292 U.S. 1; 282 U.S. 194;
UNITED STATES V. LOUISIANA, 290 U.S. 70.  THE COURT BELOW ADDS THAT IT
IS "CLEAR FROM THE EVIDENCE IN THE CASE THAT IT (THE EXISTING
INTRASTATE RATE) DID RESULT IN UNDUE, UNREASONABLE AND UNJUST
DISCRIMINATION AGAINST INTERSTATE COMMERCE  ...  ."  101 F. SUPP. 941,
945. 

THE NATURE AND ADEQUACY OF THE FINDINGS NECESSARY TO SUPPORT AN
ULTIMATE FINDING OF "UNJUST DISCRIMINATION AGAINST INTERSTATE COMMERCE"
WERE CONSIDERED IN NORTH CAROLINA V. UNITED STATES, SUPRA.  IN THAT
CASE THIS COURT HELD THAT THE COMMISSION'S FINDINGS WERE NOT ADEQUATE
TO SUPPORT THE COMMISSION'S ORDER TO RAISE STATE-WIDE INTRASTATE
PASSENGER RATES FROM 1.65 CENTS PER MILE TO 2.2 CENTS PER MILE,
ALTHOUGH THE LATTER RATE WAS PRESCRIBED BY THE COMMISSION AS A MINIMUM
RATE FOR COMPARABLE INTERSTATE PASSENGER SERVICE ON THE SAME LINES AND
TRAINS.  THE FINDING WHICH WAS PRIMARILY NEEDED, AND WAS THERE FOUND
LACKING, WAS ONE THAT THE INTRASTATE SERVICE AT 1.65 CENTS PER MILE DID
NOT CONTRIBUTE ITS FAIR SHARE OF THE EARNINGS REQUIRED TO MEET
MAINTENANCE AND OPERATING COSTS AND TO YIELD A FAIR RETURN ON THE VALUE
OF THE PROPERTY DIRECTED TO THE TRANSPORTATION SERVICE, BOTH INTERSTATE
AND INTRASTATE. 

THIS COURT HELD THAT THE MERE DISPARITY BETWEEN THE RATES FOR
COMPARABLE INTRASTATE AND INTERSTATE SERVICE WAS NOT ENOUGH PER SE TO
ESTABLISH THE REQUISITE UNJUST DISCRIMINATION.  CONFRONTED WITH
EVIDENCE THAT THE INTERSTATE RATE OF 2.2 CENTS PER MILE WAS ABOVE A
REASONABLE RATE LEVEL FOR COMPARABLE INTRASTATE PASSENGER SERVICE, A
FINDING SUPPORTED BY EVIDENCE WAS HELD TO BE NECESSARY TO SHOW THE
CONTRARY.  SUCH A FINDING, LACKING IN THE NORTH CAROLINA CASE, IS
SUPPLIED HERE BY FINDING NO. 3, WHICH STATES THAT THE "INTRASTATE RATES
... HEREIN APPROVED WILL NOT EXCEED A JUST AND REASONABLE LEVEL."  278
I.C.C. AT 72. 

IN THE NORTH CAROLINA CASE THERE WAS NO FINDING THAT THE EXISTING
INTRASTATE RATE WAS INADEQUATE.  IN FACT, ITS AMPLE ADEQUACY WAS
INDICATED BY EVIDENCE OF AN EXTRAORDINARILY LARGE VOLUME OF AVAILABLE
TRAFFIC AND PROFITS.  IN CONTRAST, THE COMMISSION, IN THE INSTANT CASE,
HAS FOUND THAT THE EXISTING "FLORIDA INTRASTATE RATES  ...  WHICH ARE
BELOW THE PROPOSED LEVEL HEREIN AUTHORIZED, ARE ABNORMALLY LOW AND ARE
NOT CONTRIBUTING THEIR FAIR SHARE TO THE REVENUES  ...  AND THAT THE
BURDEN THUS CAST UPON INTERSTATE COMMERCE IS UNDUE TO THE EXTENT THAT
THESE INTRASTATE RATES  ...  ARE LESS THAN THEY WOULD BE ON THE BASIS
HEREIN APPROVED."  FINDING NO. 5, ID., AT 72-73, AND SEE 45-59.  THE
REPORT ADDS THAT "THE REVENUE LOSS AS ESTIMATED BY THE RESPONDENTS
(RAILROADS) BECAUSE OF THE FAILURE TO AUTHORIZE THE INCREASES HEREIN
SOUGHT IS $915,325 A YEAR."  ID., AT 65. 

WHEREAS IN THE NORTH CAROLINA CASE THERE WAS EVIDENCE TO INDICATE
THAT THE CONDITIONS IN THAT STATE WERE MORE FAVORABLE TO PROFITABLE
INTRASTATE TRANSPORTATION OF PASSENGERS THAN IN THE NATION AT LARGE,
HERE THE COMMISSION'S FINDING NO. 2 EXPRESSLY STATES THAT "THE
TRANSPORTATION CONDITIONS INCIDENT TO THE INTRASTATE TRANSPORTATION OF
FREIGHT IN FLORIDA ARE NOT MORE FAVORABLE AND SUCH CONDITIONS IN THE
FLORIDA PENINSULA ARE SOMEWHAT LESS FAVORABLE THAN THOSE (1) WITHIN
SOUTHERN TERRITORY AND (2) BETWEEN FLORIDA AND INTERSTATE POINTS." 
ID., AT 72, AND SEE 63-67. 

SUPPORTING THE CONCLUSION THAT THE PROPOSED INCREASE IN THE FLORIDA
INTRASTATE FREIGHT RATES WILL NOT DRIVE AWAY BUSINESS BUT WILL PROVE
PROFITABLE AND REASONABLE, THE COMMISSION IN ITS FINDING NO. 6 SAYS
THAT "THE ESTABLISHMENT OF INTRASTATE RATES  ...  INCREASED
SUFFICIENTLY TO EQUAL THE LEVEL HEREIN APPROVED WILL SUBSTANTIALLY
INCREASE RESPONDENTS' (RAILROADS') REVENUES THEREFROM, AND WILL
CONSTITUTE NOT MORE THAN A FAIR PROPORTION OF RESPONDENTS' TOTAL INCOME
...  ."  ID., AT 73. 

THE FOREGOING FINDINGS COVER THE NEEDS EMPHASIZED IN THE NORTH
CAROLINA CASE.  THEY GO FAR BEYOND THE BARE DISPARITY BETWEEN THE
EXISTING INTRASTATE RATE AND THE PROPOSED MINIMUM RATE WHICH IS IN
SUBSTANTIAL UNIFORMITY WITH THE INTERSTATE RATE.  THESE FINDINGS
DEMONSTRATE THAT THE PROPOSED RATE IN FLORIDA WILL BE WITHIN THE ZONE
OF REASONABLENESS AND, IN THE OPINION OF THE COMMISSION, WILL CAUSE THE
INTRASTATE FREIGHT TRAFFIC TO CONTRIBUTE A FAIR SHARE OF THE EARNINGS. 

THE COMMISSION HAS APPLIED TO THE FLORIDA OPERATIONS THE SAME
CONCLUSION IT REACHED AS TO THE NEED FOR INCREASED REVENUE ON A
NATIONAL BASIS AND HAS DISTRIBUTED THE BURDEN WITHIN FLORIDA ALONG THE
SAME LINES IT FOLLOWED WHEN ESTIMATING THE REVENUES AVAILABLE IN THE
SOUTHERN TERRITORY FROM INTRASTATE AS WELL AS INTERSTATE OPERATIONS. 
IN THE ABSENCE OF ANY SHOWING THAT IT IS NOT APPLICABLE TO FLORIDA, THE
EVIDENCE WHICH FORMS THE BASIS OF THE COMMISSION'S NATIONWIDE ORDER
BECOMES THE NATURAL BASIS FOR ITS FLORIDA ORDER. 

THE COMMISSION IN THE INSTANT CASE HAS PROVIDED THAT THESE "FINDINGS
ARE WITHOUT PREJUDICE TO THE RIGHT OF THE AUTHORITIES OF THE STATE OF
FLORIDA, OR ANY OTHER INTERESTED PARTY, TO APPLY FOR A MODIFICATION
THEREOF AS TO ANY SPECIFIC INTRASTATE RATES  ...  ON THE GROUND THAT
THEY ARE NOT RELATED TO THE INTERSTATE RATES  ...  ON LIKE TRAFFIC IN
SUCH A WAY AS TO CONTRAVENE THE PROVISIONS OF THE INTERSTATE COMMERCE
ACT."  ID., AT 74.  CERTAIN OF THE RATES IN THE ORIGINAL ORDER ALREADY
HAVE BEEN MODIFIED OR REMOVED FROM THAT ORDER.  101 F. SUPP. AT 946. 

NO QUESTION HAS BEEN RAISED HERE AS TO THE ADEQUACY OF THE EVIDENCE
UPON WHICH ANY OF THE FINDINGS ARE BASED.  ALTHOUGH NO SUCH POINT IS
URGED, SUPPORTING EVIDENCE APPEARS IN THE RECORD OF THE "FULL HEARING"
UNDER SEC. 13(4), ALL OF WHICH WAS INTRODUCED IN EVIDENCE IN THE COURT
BELOW.  MUCH OF THE FACTUAL MATERIAL THAT WAS BEFORE THE COMMISSION IN
EX PARTE NO. 162 AND EX PARTE NO. 166, AND THE REPORTS IN THOSE CASES,
WERE BEFORE THE COMMISSION AND THE COURT BELOW IN THE PRESENT
PROCEEDINGS.  TO PERMIT SUCH MATERIAL AND REPORTS TO BE APPLIED UNDER
SEC. 15A BUT NOT UNDER SEC. 13(4) WOULD BE CONTRARY TO THE
COMPLEMENTARY NATURE OF THOSE SECTIONS. 

"THE DECISION IN THE FIRST PROCEEDING, THAT THE INCREASE IN
INTERSTATE RATES WAS REASONABLE, WAS MADE IN THE HOPE THAT THE STATE
COMMISSIONS WOULD BRING INTRASTATE RATES INTO HARMONY.  WHEN THEY
FAILED TO DO SO, THE COMMISSION REAFFIRMED ITS FINDING THAT THE NEW
INTERSTATE RATES WERE REASONABLE AND FOUND THAT THE INTRASTATE RATES
MUST BE RAISED IN ORDER THAT THE INTRASTATE TRAFFIC MAY BEAR ITS FAIR
SHARE OF THE REVENUE BURDEN.  IT IS PLAIN FROM THE NATURE OF THE
INQUIRY THAT THE RATE LEVEL, TO WHICH BOTH CLASSES OF TRAFFIC WERE
RAISED, WAS FOUND REASONABLE ON THE BASIS OF THE TRAFFIC AS A WHOLE. 
WHERE THE CONDITIONS UNDER WHICH INTERSTATE AND INTRASTATE TRAFFIC MOVE
ARE FOUND TO BE SUBSTANTIALLY THE SAME WITH RESPECT TO ALL FACTORS
BEARING ON THE REASONABLENESS OF THE RATE, AND THE TWO CLASSES ARE
SHOWN TO BE INTIMATELY BOUND TOGETHER, THERE IS NO OCCASION TO DEAL
WITH THE REASONABLENESS OF THE INTRASTATE RATES MORE SPECIFICALLY, OR
TO SEPARATE INTRASTATE AND INTERSTATE COSTS AND REVENUES.  COMPARE
AMERICAN EXPRESS CO. V. CALDWELL, 244 U.S. 617; UNITED STATES V.
LOUISIANA, SUPRA (290 U.S. 70); FLORIDA V. UNITED STATES, ANTE (292
U.S.), P. 1."  ILLINOIS COMMERCE COMMISSION V. UNITED STATES, 292 U.S.
474, 483-484.  SEE ALSO, MONTANA V. UNITED STATES, 106 F. SUPP. 778,
783. 

THE APPELLANTS POINT OUT THAT IN THE NORTH CAROLINA CASE, THIS COURT
MENTIONED THE ABSENCE OF OTHER FINDINGS.  THOSE, HOWEVER, ARE NOT
NEEDED TO SUSTAIN AN ORDER ALREADY SUPPORTED BY SUCH FINDINGS AS HAVE
BEEN MADE IN THIS CASE.  (FN15) 

FOR EXAMPLE, THE NORTH CAROLINA CASE MENTIONS THE ABSENCE IN THAT
CASE OF A FINDING THAT THE EXISTING 1.65 CENT PER MILE INTRASTATE
PASSENGER RATE WAS CONFISCATORY.  SUCH A FINDING, SUPPORTED BY
COMPETENT EVIDENCE, WOULD HAVE PROVIDED A CONSTITUTIONAL GROUND FOR
ENJOINING THE STATE RATE.  SEE NORFOLK & WESTERN R. CO. V. CONLEY, 236
U.S. 605; NORTHERN PACIFIC R. CO. V. NORTH DAKOTA, 236 U.S. 585.  THE
INTERSTATE COMMERCE COMMISSION'S JURISDICTION OVER INTRASTATE RATES,
HOWEVER, IS NOT LIMITED TO CASES WHERE THOSE RATES ARE CONFISCATORY. 
IT IS SUFFICIENT THAT THE EXISTING INTRASTATE RATES CAUSE "UNJUST
DISCRIMINATION AGAINST INTERSTATE OR FOREIGN COMMERCE  ...  ."  IN THAT
EVENT, SEC. 13(4) DIRECTS THE COMMISSION TO PRESCRIBE INTRASTATE RATES
THAT WILL REMOVE THE DISCRIMINATION WITHOUT RAISING THE RATE BEYOND THE
ZONE OF REASONABLENESS.  SEE UNITED STATES V. LOUISIANA, SUPRA, AT 74
75; FLORIDA V. UNITED STATES, 282 U.S. 194, 211; WISCONSIN R.
COMMISSION V. CHICAGO, B.&Q.R. CO., 257 U.S. 563, 585-586. 

SIMILARLY, THE NORTH CAROLINA CASE MENTIONS, BUT DOES NOT MAKE
INDISPENSABLE, THE SPECIFIC FINDINGS IN DOLLARS WHICH WERE ABSENT
THERE.  REFERENCE WAS MADE IN THE NORTH CAROLINA CASE TO THE ABSENCE OF
"FINDINGS AS TO WHAT CONTRIBUTION FROM INTRASTATE TRAFFIC WOULD
CONSTITUTE A FAIR PROPORTION OF THE RAILROAD'S TOTAL INCOME" AND ALSO
TO THE ABSENCE OF ANY "FINDING AS TO WHAT AMOUNT OF REVENUE WAS
REQUIRED TO ENABLE THESE RAILROADS TO OPERATE EFFICIENTLY."  325 U.S.
AT 516.  THE COURT EMPHASIZED THE COMMISSION'S RELIANCE ON "THE MERE
EXISTENCE OF A DISPARITY BETWEEN WHAT IT SAID WAS A REASONABLE
INTERSTATE RATE AND THE INTRASTATE RATE FIXED BY NORTH CAROLINA." 
IBID.  IN THE INSTANT CASE THE COMMISSION DOES NOT RELY UPON THE MERE
DISPARITY BETWEEN THE INTRASTATE AND INTERSTATE RATES.  ON THE
CONTRARY, THE COMMISSION STATES THAT THE FLORIDA INTRASTATE RATES "ARE
ABNORMALLY LOW AND ARE NOT CONTRIBUTING THEIR FAIR SHARE TO THE
REVENUES REQUIRED  ...  TO RENDER ADEQUATE AND EFFICIENT SERVICE AND TO
OPERATE PROFITABLY, AND THEREBY ACCOMPLISH THE PURPOSE OF THE
INTERSTATE COMMERCE ACT  ...  ."  FINDING NO. 5, 278 I.C.C. AT 72. 
ALSO, IN FINDING NO. 6, IT SAYS THAT THE ESTABLISHMENT OF THE PROPOSED
INCREASES IN INTRASTATE RATES "WILL SUBSTANTIALLY INCREASE RESPONDENTS'
REVENUES THEREFROM, AND WILL CONSTITUTE NOT MORE THAN A FAIR PROPORTION
OF RESPONDENTS' TOTAL INCOME  ...  ."  ID., AT 73.  MORE IS NOT
NEEDED.  IT IS NOT NECESSARY, FOR GENERAL REVENUE PURPOSES, TO
ESTABLISH FOR EACH ITEM IN EACH FREIGHT RATE A FULLY DEVELOPED RATE
CASE. 

"THE ADMINISTRATIVE ARM OF THE COMMISSION WOULD BE PARALYZED, IF
INSTEAD OF ADJUDICATING UPON THE RATES IN A LARGE TERRITORY ON EVIDENCE
DEEMED TYPICAL OF THE WHOLE RATE STRUCTURE, IT WERE OBLIGED TO CONSIDER
THE REASONABLENESS OF EACH INDIVIDUAL RATE BEFORE CARRYING INTO EFFECT
THE NECESSARY INCREASED SCHEDULE."  UNITED STATES V. LOUISIANA, 290
U.S. 70, 75-76, AND SEE 78-79.  SEE ALSO, ILLINOIS COMMERCE COMMISSION
V. UNITED STATES, 292 U.S. 474, 483; FLORIDA V. UNITED STATES, 292 U.S.
1, 9; GEORGIA P.S. COMMISSION V. UNITED STATES, 283 U.S. 765, 774;
WISCONSIN R. COMMISSION V. CHICAGO, B.&Q.R. CO., 257 U.S. 563, 588. 
WHERE THE COMMISSION SEEKS TO DEAL GENERALLY WITH RATES AND REVENUES IN
A LARGE AREA ON EVIDENCE TYPICAL OF THE AREA AS A WHOLE, IT MAY PROCEED
BY WAY OF A GENERAL ORDER SUPPORTED BY SUFFICIENT EVIDENCE APPLICABLE
TO THE WHOLE TERRITORY.  (FN16)  AT THE SAME TIME IT IS WELL FOR IT TO
LEAVE THE WAY OPEN, AS IT DID HERE, FOR MODIFICATIONS OF THAT GENERAL
ORDER IN SPECIFIC SITUATIONS WHERE THE GENERAL ORDER IS NOT JUSTLY
APPLICABLE.  NORTH CAROLINA V. UNITED STATES, SUPRA, AT 518, 535. 

FOR THESE REASONS, WE CONCLUDE THAT THE FINDINGS BEFORE US SUSTAIN
THE ORDER OF THE COMMISSION AND THAT THE COMMISSION WAS AUTHORIZED TO
GIVE THE WEIGHT IT DID TO PASSENGER DEFICITS WHEN PRESCRIBING
INTRASTATE FREIGHT RATES.  THE JUDGMENT ACCORDINGLY IS AFFIRMED.    FN1
"(4)  WHENEVER IN ANY SUCH INVESTIGATION (WHERE RATES MADE BY
AUTHORITY OF A STATE ARE IN ISSUE) THE COMMISSION, AFTER FULL HEARING,
FINDS THAT ANY SUCH RATE, FARE, CHARGE, CLASSIFICATION, REGULATION, OR
PRACTICE CAUSES ANY UNDUE OR UNREASONABLE ADVANTAGE, PREFERENCE, OR
PREJUDICE AS BETWEEN PERSONS OR LOCALITIES IN INTRASTATE COMMERCE ON
THE ONE HAND AND INTERSTATE OR FOREIGN COMMERCE ON THE OTHER HAND, OR
ANY UNDUE, UNREASONABLE, OR UNJUST DISCRIMINATION AGAINST INTERSTATE OR
FOREIGN COMMERCE, WHICH IS HEREBY FORBIDDEN AND DECLARED TO BE
UNLAWFUL, IT SHALL PRESCRIBE THE RATE, FARE, OR CHARGE, OR THE MAXIMUM
OR MINIMUM, OR MAXIMUM AND MINIMUM, THEREAFTER TO BE CHARGED, AND THE
CLASSIFICATION, REGULATION, OR PRACTICE THEREAFTER TO BE OBSERVED, IN
SUCH MANNER AS, IN ITS JUDGMENT, WILL REMOVE SUCH ADVANTAGE,
PREFERENCE, PREJUDICE, OR DISCRIMINATION.  SUCH RATES, FARES, CHARGES,
CLASSIFICATIONS, REGULATIONS, AND PRACTICES SHALL BE OBSERVED WHILE IN
EFFECT BY THE CARRIERS PARTIES TO SUCH PROCEEDING AFFECTED THEREBY, THE
LAW OF ANY STATE OR THE DECISION OR ORDER OF ANY STATE AUTHORITY TO THE
CONTRARY NOTWITHSTANDING."  41 STAT. 484, 49 U.S.C. SEC. 13(4). 

FN2  SEC. 13(2), 36 STAT. 550, AS AMENDED, 41 STAT. 484, 49 U.S.C.
SEC. 13(2); SEC. 15A(2), 54 STAT. 912, 49 U.S.C. SEC. 15A(2); SEC. 1 OF
THE TRANSPORTATION ACT OF 1940, INSERTING A PREAMBLE TO THE INTERSTATE
COMMERCE ACT, 54 STAT. 899, 49 U.S.C., NOTE PRECEDING SEC. 1. 

FN3  FOR EARLIER REPORTS SEE EX PARTE NO. 148, INCREASED RAILWAY
RATES, FARES, AND CHARGES, 1942, 248 I.C.C. 545.  THE SEVERAL
PROCEEDINGS UNDER SECS. 15A OR 13(4) REFERRED TO IN THIS OPINION DEAL
AT LENGTH WITH MANY COMMODITY AND OTHER RATES OR CHARGES BESIDES THOSE
WHICH ARE CONTROLLED BY THE GENERAL PERCENTAGE INCREASES REFERRED TO IN
THE OPINION.  WHILE SUCH VARIATIONS ARE IMPORTANT AND SIGNIFICANT IN
ADJUSTING EACH ORDER TO SPECIFIC SITUATIONS, THEIR CONSIDERATION IS NOT
NECESSARY TO THE DETERMINATION OF THE ISSUES BEFORE US.  THE
PERCENTAGES USED IN THIS OPINION ARE THOSE WHICH WERE ADOPTED BY THE
COURT BELOW FOR ILLUSTRATIVE PURPOSES.  101 F. SUPP. 941, 943-944. 

FN4 IN EX PARTE NO. 166, 270 I.C.C. 403, 421, THE TABULATIONS OF OVER
ALL PERCENTAGE INCREASES IN FREIGHT RATES INCLUDE INTRASTATE TRAFFIC. 
THE REPORT SAYS:  "THE TABLE WHICH RELATES TO CLASS I RAILROADS, COVERS
ALL TRAFFIC, INTRASTATE AS WELL AS INTERSTATE, AND ASSUMES INCREASES TO
HAVE BEEN APPROVED ON INTRASTATE TRAFFIC SIMILARLY TO THOSE UPON
INTERSTATE TRAFFIC IN THE SAME TERRITORY, FOR THE WHOLE TIME."  IN
REFERRING TO REVENUE FROM OPERATIONS FOR A "CONSTRUCTIVE," NORMAL YEAR,
THE REPORT SAYS:  "THIS ESTIMATE IS UPON THE ASSUMPTION THAT TIMELY
SIMILAR ADJUSTMENTS WILL BE MADE UPON INTRASTATE TRAFFIC."  ID., AT
428.  AS TO RATES OF RETURN ON PROPERTY VALUES, IT ADDS:  "THEY
PRESUPPOSE THAT GENERALLY SIMILAR INCREASES WILL BE PERMITTED BY STATE
AUTHORITIES ON INTRASTATE TRAFFIC, OR MAY BECOME EFFECTIVE OTHERWISE." 
ID., AT 437.  SEE ALSO, 269 I.C.C. AT 39, 94-95, AND 270 I.C.C. AT
440. 

FN5  IN RESPONSE TO REQUESTS BASED UPON EX PARTE NO. 162, SUPRA, THE
FLORIDA COMMISSION GRANTED THE ORIGINAL 20% GENERAL INCREASE IN
INTRASTATE FREIGHT RATES BUT DECLINED TO ALLOW INCREASES IN INTRASTATE
RATES ON LOGS MOVING TO THE MILLS, WET PHOSPHATE MOVING FROM THE WASHER
TO THE DRYING PLANT, WASTE WOOD MOVING TO RETORT OR RECOVERY PLANT AND
SUGAR CANE MOVING TO THE MILLS.  IT ALSO LIMITED RATE INCREASES ON
PULPWOOD TO 9%.  IN RESPONSE TO REQUESTS TO CONFORM TO EX PARTE NO.
166, SUPRA, THE FLORIDA COMMISSION GRANTED THE ADDITIONAL 20% GENERAL
INCREASE IN INTRASTATE FREIGHT RATES, BUT DECLINED TO APPROVE THE
FURTHER 5% INCREASE.  IT ALSO MADE SPECIFIC EXCEPTIONS IN FAVOR OF
CERTAIN COMMODITIES.  AS THE ISSUES WITH WHICH WE ARE CONCERNED ARE
SUFFICIENTLY RAISED BY THE FLORIDA COMMISSION'S ACTION DENYING THE
FINAL 5% INCREASE, WE CONFINE OUR DISCUSSION TO THAT ITEM. 

FN6  WHILE THE COMMISSION STATES THAT ITS CONCLUSIONS DIFFER FROM
THOSE IN THE PROPOSED REPORT OF THE EXAMINER, THEY DO NOT SO DIFFER ON
THE ISSUES BEFORE US. 

FN7  FOR OTHER DECISIONS OF THE COMMISSION AS TO INTRASTATE RATES
UNDER SEC. 13(3) AND (4), GROWING OUT OF EX PARTE NOS. 162 OR 166,
SUPRA, SEE INCREASES IN ALABAMA FREIGHT RATES AND CHARGES, 274 I.C.C.
439; TEXAS INTRASTATE RATES, 273 I.C.C. 749; INCREASES IN TENNESSEE
FREIGHT RATES AND CHARGES, 272 I.C.C. 625.  SEE ALSO, INCREASES IN
ARIZONA FREIGHT RATES AND CHARGES, 270 I.C.C. 105.  A RECENT DECISION,
GROWING OUT OF EX PARTE NO. 168, INCREASED FREIGHT RATES, 1948, 276
I.C.C. 9, IS MONTANA INTRASTATE FREIGHT RATES AND CHARGES, 284 I.C.C.
167.  THE INTRASTATE RATES THERE ORDERED INTO EFFECT BY THE COMMISSION
WERE SET ASIDE IN MONTANA V. UNITED STATES, 106 F. SUPP. 778, AND 786;
JUDGMENT VACATED AND CAUSE REMANDED BY THIS COURT FOR FURTHER
CONSIDERATION IN THE LIGHT OF THE INSTANT CASE, POST, P. 905. 

FN8 THE COMMISSION THERE SAID: 

"WE KNOW OF NO PROVISION OF LAW UNDER WHICH WE SHOULD BE JUSTIFIED IN
INCREASING FREIGHT RATES TO PROVIDE A RETURN UPON PROPERTY USED
EXCLUSIVELY IN THE PASSENGER SERVICE, MUCH LESS TO TAKE CARE OF LOSSES
INCURRED IN SUCH SERVICE.  IN OUR OPINION EACH BRANCH OF THE SERVICE
SHOULD CONTRIBUTE ITS PROPER SHARE OF THE COST OF OPERATION AND OF
RETURN UPON THE PROPERTY DEVOTED TO THE USE OF THE PUBLIC."  31 I.C.C.
AT 392. 

FN9  PASSENGER SERVICE INVOLVES NOT ONLY TRANSPORTATION OF PEOPLE BUT
OF MAIL, EXPRESS, BAGGAGE, MILK AND OTHER "HEAD-END" SERVICES REQUIRING
THE SPEED AND SERVICE OF PASSENGER TRAINS.  THESE OPERATIONS HAVE SHOWN
A NATIONAL OPERATING DEFICIT IN EACH YEAR FROM 1936 THROUGH 1948.  276
I.C.C. AT 38. 

FN10  "  ...  BETWEEN THE END OF 1923 AND THE BEGINNING OF THE
PRESENT YEAR (1948), THE MILES OF LINE OPERATED IN PASSENGER SERVICE OF
THE CLASS I ROADS DECREASED FROM 224,762 TO 159,373  ...  OR 29.1
PERCENT IN 26 YEARS  ...  .  IN ADDITION TO TOTAL ABANDONMENTS, MUCH
CURTAILMENT OF SERVICE HAS OCCURRED, WHICH IS IMPOSSIBLE TO PORTRAY
STATISTICALLY. 

     *         *         *         *         * 

"  ...  FROM 1923 THROUGH 1933 BOTH THE NUMBER OF PASSENGERS CARRIED
AND THE REVENUES FROM PASSENGER FARES DECLINED UNINTERRUPTEDLY. 
PASSENGERS CARRIED DECLINED FROM SLIGHTLY LESS THAN 1 BILLION IN THE
EARLIER YEAR TO LESS THAN HALF THAT FIGURE, OR 433 MILLIONS, IN ROUND
NUMBERS, IN THE LATER YEAR.  REVENUES FROM PASSENGER FARES FELL FROM
$1,148 MILLIONS TO $329 MILLIONS, A DECLINE BETWEEN THESE 2 YEARS OF
MORE THAN 70 PERCENT.  THIS DEVELOPMENT WAS ACCOMPANIED, EXCEPT FOR 1
YEAR, BY AN UNINTERRUPTED INCREASE IN THE PASSENGER SERVICE OPERATING
RATIO FROM 81.29 PERCENT IN 1923 TO 101.22 PERCENT IN 1930, THE LATTER
BEING THE FIRST YEAR OF THE 11 YEARS 1920-1930 IN WHICH THERE WAS AN
OPERATING DEFICIT IN THIS SERVICE.  SINCE THAT YEAR THERE HAS BEEN AN
ANNUAL OPERATING DEFICIT IN PASSENGER SERVICE, EXCEPT DURING THE WAR
YEARS 1942-45. 

     *         *         *         *         * 

"PASSENGER SERVICE OPERATING RATIOS AND NET RAILWAY OPERATING
DEFICITS IN 1948, BY SPECIFIED DISTRICTS AND REGIONS: 

DISTRICT OR REGION                    OPERATING RATIO            NET
RAILWAY OPERATING DEFICIT 

EASTERN DISTRICT                        120.8
$216,450,000 

POCAHONTAS REGION                       177.8
35,725,000 

SOUTHERN REGION                         127.3
72,982,000 

WESTERN DISTRICT              132.2
234,625,000 

TOTAL                                   127.4          559,782,000" 

276 I.C.C. AT 36, 40; SEE ALSO, PP. 14-31 FOR DATA AS TO VALUE,
REVENUE, EXPENSES, OPERATING INCOME, RATE OF RETURN, TRAFFIC,
EFFICIENCY, ETC., AND PP. 32-40 AS TO PASSENGER DEFICITS. 

SEE MOULTON, THE AMERICAN TRANSPORTATION PROBLEM, C. V (1933); 63D,
64TH AND 65TH ANNUAL REPORTS OF THE INTERSTATE COMMERCE COMMISSION, AT
PP. 3, 5 AND 41, RESPECTIVELY. 

FN11  "IN THE EXERCISE OF ITS POWER TO PRESCRIBE JUST AND REASONABLE
RATES THE COMMISSION SHALL GIVE DUE CONSIDERATION, AMONG OTHER FACTORS,
TO THE EFFECT OF RATES ON THE MOVEMENT OF TRAFFIC BY THE CARRIER OR
CARRIERS FOR WHICH THE RATES ARE PRESCRIBED; TO THE NEED, IN THE PUBLIC
INTEREST, OF ADEQUATE AND EFFICIENT RAILWAY TRANSPORTATION SERVICE AT
THE LOWEST COST CONSISTENT WITH THE FURNISHING OF SUCH SERVICE; AND TO
THE NEED OF REVENUES SUFFICIENT TO ENABLE THE CARRIERS, UNDER HONEST,
ECONOMICAL, AND EFFICIENT MANAGEMENT TO PROVIDE SUCH SERVICE."  54
STAT. 912, 49 U.S.C. SEC. 15A(2). 

"IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF
THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES
OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRY OUT THE ABOVE
DECLARATION OF POLICY."  54 STAT. 899, 49 U.S.C., NOTE PRECEDING SEC.
1. 

FN12  NORTHERN PACIFIC R. CO. V. NORTH DAKOTA, 236 U.S. 585, AND
NORFOLK & W.R. CO. V. CONLEY, 236 U.S. 605, FAVOR, RATHER THAN OPPOSE,
THIS POSITION.  IN THOSE CASES THIS COURT ENJOINED STATE AUTHORITIES
FROM ATTEMPTING TO RESTRICT AN INTRASTATE RAILROAD TO CONFISCATORILY
LOW FREIGHT OR PASSENGER RATES.  SUCH ACTION, HOWEVER, CARRIED NO
IMPLICATION THAT THE UNITED STATES' AUTHORITY TO PROVIDE RELIEF IS
LIMITED TO CASES OF THREATENED CONFISCATION.  IN THE INSTANT CASE THE
INTERSTATE COMMERCE COMMISSION IS AUTHORIZED BY CONGRESS, UNDER SECS.
15A(2) AND 13(4), TO OVERRIDE STATE-PRESCRIBED RATES WHICH UNJUSTLY
DISCRIMINATE AGAINST INTERSTATE COMMERCE, WHETHER OR NOT THE STATE
RATES ARE ALSO CONFISCATORY. 

FN13  "2.  THAT THE TRANSPORTATION CONDITIONS INCIDENT TO THE
INTRASTATE TRANSPORTATION OF FREIGHT IN FLORIDA ARE NOT MORE FAVORABLE
AND SUCH CONDITIONS IN THE FLORIDA PENINSULA ARE SOMEWHAT LESS
FAVORABLE THAN THOSE (1) WITHIN SOUTHERN TERRITORY AND (2) BETWEEN
FLORIDA AND INTERSTATE POINTS. 

"3.  THAT THE PRESENT INTERSTATE FREIGHT RATES AND CHARGES WITHIN
FLORIDA AND BETWEEN POINTS IN FLORIDA AND POINTS IN OTHER STATES ARE
JUST AND REASONABLE  ...  AND THAT INTRASTATE RATES, CHARGES, AND
MINIMUM WEIGHTS HEREIN APPROVED WILL NOT EXCEED A JUST AND REASONABLE
LEVEL. 

     *         *         *         *         * 

"5.  THAT THE FLORIDA INTRASTATE RATES, CHARGES, AND MINIMUM WEIGHTS,
WHICH ARE BELOW THE LEVEL HEREIN AUTHORIZED, ARE ABNORMALLY LOW AND ARE
NOT CONTRIBUTING THEIR FAIR SHARE TO THE REVENUES REQUIRED BY
RESPONDENTS TO ENABLE THEM TO RENDER ADEQUATE AND EFFICIENT SERVICE AND
TO OPERATE PROFITABLY, AND THEREBY ACCOMPLISH THE PURPOSE OF THE
INTERSTATE COMMERCE ACT, AND AS SET FORTH IN THE NATIONAL
TRANSPORTATION POLICY DECLARED BY THE CONGRESS, TO DEVELOP AND PRESERVE
A NATIONAL TRANSPORTATION SYSTEM ADEQUATE TO MEET THE NEEDS OF THE
COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE; AND THAT THE BURDEN THUS CAST UPON INTERSTATE
COMMERCE IS UNDUE TO THE EXTENT THAT THESE INTRASTATE RATES AND CHARGES
ARE LESS THAN THEY WOULD BE ON THE BASIS HEREIN APPROVED. 

"6.  THAT THE ESTABLISHMENT OF INTRASTATE RATES AND CHARGES INCREASED
SUFFICIENTLY TO EQUAL THE LEVEL HEREIN APPROVED WILL SUBSTANTIALLY
INCREASE RESPONDENTS' REVENUES THEREFROM, AND WILL CONSTITUTE NOT MORE
THAN A FAIR PROPORTION OF RESPONDENTS' TOTAL INCOME  ...  . 

"7.  THAT THE MAINTENANCE OF INTRASTATE RATES AND CHARGES WITHIN
FLORIDA ON BASES LOWER THAN THOSE HEREIN APPROVED CAUSES, AND IN THE
FUTURE WILL CAUSE, (1) IN ALL INSTANCES, UNJUST DISCRIMINATION AGAINST
INTERSTATE COMMERCE, (2) IN NEARLY ALL INSTANCES, UNDUE PREFERENCE OF
AND ADVANTAGE TO LOCALITIES IN INTRASTATE COMMERCE, AND UNDUE PREJUDICE
TO LOCALITIES IN INTERSTATE COMMERCE; ...  . 

"8.  THAT THIS UNJUST DISCRIMINATION AND UNDUE PREJUDICE SHOULD BE
REMOVED BY ESTABLISHING INTRASTATE RATES AND CHARGES BETWEEN POINTS IN
FLORIDA WHICH WILL REFLECT THE SAME INCREASES AS ARE, AND FOR THE
FUTURE MAY BE, MAINTAINED BY RESPONDENTS ON LIKE INTERSTATE TRAFFIC TO
AND FROM FLORIDA, AND WITHIN FLORIDA UNDER OUR AUTHORIZATIONS IN EX
PARTE NO. 162 AND EX PARTE NO. 166, MODIFIED AS HEREIN INDICATED AND AS
PROPOSED BEFORE THE FLORIDA COMMISSION IN PROCEEDINGS REFERRED TO
HEREIN: ...  (5) THAT NO INTRASTATE RATE OR CHARGE SHALL BE INCREASED
SO THAT IT WILL EXCEED THE LOWEST LEVEL OF THE CORRESPONDING RATES OR
CHARGES CONTEMPORANEOUSLY MAINTAINED GENERALLY ON INTERSTATE TRAFFIC TO
AND FROM FLORIDA POINTS IN THE PERIOD FROM AUGUST 21, 1948, TO, BUT NOT
INCLUDING, JANUARY 11, 1949; ...  . 

"THESE FINDINGS ARE WITHOUT PREJUDICE TO THE RIGHT OF THE AUTHORITIES
OF THE STATE OF FLORIDA, OR ANY OTHER INTERESTED PARTY, TO APPLY FOR A
MODIFICATION THEREOF AS TO ANY SPECIFIC INTRASTATE RATES OR CHARGES ON
THE GROUND THAT THEY ARE NOT RELATED TO THE INTERSTATE RATES OR CHARGES
ON LIKE TRAFFIC IN SUCH A WAY AS TO CONTRAVENE THE PROVISIONS OF THE
INTERSTATE COMMERCE ACT."  278 I.C.C. AT 72-74.    FN14  AN ALTERNATIVE
PROVISION OF SEC. 13(4) IS THAT WHENEVER IN SUCH AN INVESTIGATION THE
COMMISSION FINDS THAT AN INTRASTATE RATE CAUSES "ANY UNDUE OR
UNREASONABLE ADVANTAGE, PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS OR
LOCALITIES IN INTRASTATE COMMERCE ON THE ONE HAND AND INTERSTATE OR
FOREIGN COMMERCE ON THE OTHER HAND  ...  IT SHALL PRESCRIBE THE RATE
...  THEREAFTER TO BE CHARGED ...  IN SUCH MANNER AS, IN ITS JUDGMENT,
WILL REMOVE SUCH ADVANTAGE, PREFERENCE, PREJUDICE, OR DISCRIMINATION." 
NOTE 1, SUPRA.  ON THIS POINT THE COMMISSION'S FINDING NO. 7 STATES
THAT THE MAINTENANCE OF INTRASTATE RATES IN FLORIDA "ON BASES LOWER
THAN THOSE HEREIN APPROVED CAUSES, AND IN THE FUTURE WILL CAUSE  ...
(2) IN NEARLY ALL INSTANCES, UNDUE PREFERENCE OF AND ADVANTAGE TO
LOCALITIES IN INTRASTATE COMMERCE, AND UNDUE PREJUDICE TO LOCALITIES IN
INTERSTATE COMMERCE; ...  ."  278 I.C.C. AT 73.  AS TO THIS ALTERNATIVE
PROVISION, SEE ALSO, WISCONSIN R. COMMISSION V. CHICAGO, B.&Q.R. CO.,
257 U.S. 563; HOUSTON, E.&W.T.R. CO. V. UNITED STATES, 234 U.S. 342. 
IN VIEW OF THE ABOVE RESTRICTED FINDING AND OF THE DOUBT EXPRESSED BY
THE COURT BELOW AS TO THE ABILITY OF THE COMMISSION TO SUSTAIN ITS
ACTION ON THAT GROUND, WE PLACE NO RELIANCE UPON THIS ALTERNATIVE
HERE. 

FN15  SEE ILLINOIS COMMERCE COMMISSION V. UNITED STATES, SUPRA;
FLORIDA V. UNITED STATES, 292 U.S. 1; UNITED STATES V. LOUISIANA,
SUPRA; LOUISIANA P.S. COMMISSION V. TEXAS & N.O.R. CO., 284 U.S. 125;
ALABAMA V. UNITED STATES, 283 U.S. 776; GEORGIA P.S. COMMISSION V.
UNITED STATES, 283 U.S. 765; NEW YORK V. UNITED STATES, 257 U.S. 591;
WISCONSIN R. COMMISSION V. CHICAGO, B.&Q.R. CO., 257 U.S. 563.. 

FN16  IN ITS REPORT THE COMMISSION SAYS "WHERE, AS IS THE CASE HERE,
THE INTRASTATE AND THE INTERSTATE TRAFFIC, AS A WHOLE, MOVES UNDER
SUBSTANTIALLY SIMILAR CONDITIONS, AND THE EXPENSE OF HANDLING THE TWO
CLASSES OF TRAFFIC ARE INEXTRICABLY WOVEN TOGETHER, AN ATTEMPT TO DO
THE IMPOSSIBLE, NAMELY AN ATTEMPT TO SHOW COSTS OF INTRASTATE SERVICE
SEGREGATED FROM INTERSTATE COSTS, TOGETHER WITH SIMILAR SEGREGATED
VALUATION OF CARRIER PROPERTY, WOULD SERVE NO USEFUL PURPOSE."  278
I.C.C. AT 66. 

MR. JUSTICE BLACK IS OF OPINION THAT THE FACTS FOUND BY THE
COMMISSION WERE NOT ADEQUATE TO SUPPORT THE ORDER AND WOULD SET ASIDE
THE ORDER ON AUTHORITY OF NORTH CAROLINA V. UNITED STATES, 325 U.S.
507. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. CHIEF JUSTICE VINSON CONCURS,
DISSENTING. 

THE COURT HAS TAKEN AN UNPRECEDENTED AND, IN MY VIEW, AN UNWARRANTED
STEP IN ENLARGING THE AUTHORITY OF THE INTERSTATE COMMERCE COMMISSION. 
IT UPHOLDS THE POWER OF THE COMMISSION TO RAISE INTRASTATE FREIGHT
RATES, NOT BECAUSE THEY FAVOR INTRASTATE OVER INTERSTATE COMMERCE, NOT
BECAUSE THEY FAIL TO YIELD THEIR FAIR SHARE OF THE CARRIERS' REVENUE,
BUT BECAUSE THE CARRIERS' INTERSTATE PASSENGER OPERATIONS ARE LOSING
MONEY. 

THE POWER OF CONGRESS TO REGULATE INTRASTATE RATES STEMS FROM ITS
AUTHORITY TO PROMOTE AND PROTECT INTERSTATE COMMERCE.  SEE SHREVEPORT
RATE CASE, 234 U.S. 342.  (FN1)  BY SEC. 13(4) OF THE ACT, THE
COMMISSION IS EMPOWERED TO REGULATE INTRASTATE RATES WHICH ARE FOUND TO
BE DISCRIMINATORY.  THE KEY TO THIS REGULATORY AUTHORITY IS
DISCRIMINATION AGAINST INTERSTATE COMMERCE, WHICH PRESUPPOSES THAT
SOMEHOW OR OTHER THE PARTICULAR INTRASTATE RATES INTERFERE WITH OR
PREJUDICE INTERSTATE COMMERCE.  THIS PRINCIPLE IS EXPLICIT IN SEC.
13(4) (FN2) AND IN THE DECISIONS OF THE COURT, BOTH BEFORE AND AFTER
THE ENACTMENT OF SEC. 13(4).  (FN3) 

IN THIS CASE THERE IS NO RATIONAL RELATION BETWEEN INTRASTATE FREIGHT
RATES AND INTERSTATE PASSENGER OPERATIONS.  THE PRESENT LEVEL OF
FREIGHT RATES IN FLORIDA NEITHER HAMPERS NOR OBSTRUCTS THE FREE FLOW OF
INTERSTATE PASSENGER TRANSPORTATION.  THEY DO NOT AFFECT ITS QUANTITY
OF FLOW.  THERE IS, THEREFORE, NO BASIS FOR A FINDING OF DISCRIMINATION
AGAINST INTERSTATE COMMERCE. 

THE COMMISSION, OF COURSE, IS AUTHORIZED TO REGULATE INTRASTATE RATES
SO THAT INTRASTATE OPERATIONS WILL PROVIDE A FAIR SHARE OF THE
CARRIERS' REVENUE.  (FN4)  SEE WISCONSIN COMMISSION V. CHICAGO, B.&Q.R.
CO., 257 U.S. 563.  BUT THAT AUTHORITY RESTS ON THE COMMISSION'S POWER
TO REMOVE DISCRIMINATION.  IF, FOR EXAMPLE, INTRASTATE FREIGHT
OPERATIONS FAIL TO PRODUCE AN ADEQUATE RETURN AS DETERMINED BY
REFERENCE TO THE COST OF THE INTRASTATE OPERATIONS AND THE INVESTMENT
IN THE INTRASTATE BUSINESS, INTERSTATE COMMERCE IS DISCRIMINATED
AGAINST.  BUT THERE IS NO SUCH FAILURE IN THIS CASE.  INTRASTATE
FREIGHT OPERATIONS IN FLORIDA ARE AMPLY PROFITABLE AND CARRY THEIR FAIR
SHARE OF THE LOAD.  THE COMMISSION NEVERTHELESS HAS SADDLED THE
INTRASTATE FREIGHT BUSINESS WITH THE DEFICITS FROM THE INTERSTATE
PASSENGER BUSINESS.  IF THERE IS ANY DISCRIMINATION HERE, IT IS AGAINST
THE LOCAL FLORIDA SHIPPER. 

THE COMMISSION SURMISES BUT DOES NOT FIND THAT THE INTRASTATE
PASSENGER RATES CONTRIBUTE TO THE PASSENGER DEFICITS OF THE CARRIERS. 
BUT THERE IS NO SHOWING THAT EITHER THE INTRASTATE PASSENGER RATES OR
THE INTRASTATE FREIGHT RATES DO IN FACT CONTRIBUTE TO THESE DEFICITS. 
MOREOVER, EVEN IF WE ASSUME THAT INTRASTATE PASSENGER RATES DO
CONTRIBUTE TO THE PASSENGER DEFICITS, WE DO NOT KNOW THE AMOUNT.  THE
ABSENCE OF THESE MATERIAL FINDINGS (SEE NORTH CAROLINA V. UNITED
STATES, 325 U.S. 507) INDICATES TO ME THE SHORT CUT WHICH THE
COMMISSION IS TAKING TO ENLARGE ITS JURISDICTION TO UNPRECEDENTED
LIMITS. 

FN1  AS MR. JUSTICE HUGHES SPEAKING FOR THE COURT IN THE SHREVEPORT
CASE SAID (234 U.S., P. 351):  "CONGRESS IS EMPOWERED TO REGULATE, -
THAT IS, TO PROVIDE THE LAW FOR THE GOVERNMENT OF INTERSTATE COMMERCE;
TO ENACT 'ALL APPROPRIATE LEGISLATION' FOR ITS 'PROTECTION AND
ADVANCEMENT' (THE DANIEL BALL, 10 WALL.  557, 564); TO ADOPT MEASURES
'TO PROMOTE ITS GROWTH AND INSURE ITS SAFETY' (COUNTY OF MOBILE V.
KIMBALL, SUPRA); 'TO FOSTER, PROTECT, CONTROL AND RESTRAIN' (SECOND
EMPLOYERS' LIABILITY CASES, SUPRA).  ITS AUTHORITY, EXTENDING TO THESE
INTERSTATE CARRIERS AS INSTRUMENTS OF INTERSTATE COMMERCE, NECESSARILY
EMBRACES THE RIGHT TO CONTROL THEIR OPERATIONS IN ALL MATTERS HAVING
SUCH A CLOSE AND SUBSTANTIAL RELATION TO INTERSTATE TRAFFIC THAT THE
CONTROL IS ESSENTIAL OR APPROPRIATE TO THE SECURITY OF THAT TRAFFIC, TO
THE EFFICIENCY OF THE INTERSTATE SERVICE, AND TO THE MAINTENANCE OF
CONDITIONS UNDER WHICH INTERSTATE COMMERCE MAY BE CONDUCTED UPON FAIR
TERMS AND WITHOUT MOLESTATION OR HINDRANCE." 

FN2  THE RELEVANT PORTIONS OF SEC. 13(4) READ:  "WHENEVER IN ANY SUCH
INVESTIGATION THE COMMISSION, AFTER FULL HEARING, FINDS THAT ANY SUCH
RATE, FARE, CHARGE, CLASSIFICATION, REGULATION, OR PRACTICE CAUSES ANY
UNDUE OR UNREASONABLE ADVANTAGE, PREFERENCE, OR PREJUDICE AS BETWEEN
PERSONS OR LOCALITIES IN INTRASTATE COMMERCE ON THE ONE HAND AND
INTERSTATE OR FOREIGN COMMERCE ON THE OTHER HAND, OR ANY UNDUE,
UNREASONABLE, OR UNJUST DISCRIMINATION AGAINST INTERSTATE OR FOREIGN
COMMERCE, WHICH IS HEREBY FORBIDDEN AND DECLARED TO BE UNLAWFUL, IT
SHALL PRESCRIBE THE RATE, FARE, OR CHARGE, OR THE MAXIMUM OR MINIMUM,
OR MAXIMUM AND MINIMUM, THEREAFTER TO BE CHARGED, AND THE
CLASSIFICATION, REGULATION, OR PRACTICE THEREAFTER TO BE OBSERVED, IN
SUCH MANNER AS, IN ITS JUDGMENT, WILL REMOVE SUCH ADVANTAGE,
PREFERENCE, PREJUDICE, OR DISCRIMINATION  ...  ." 

FN3  SEE SHREVEPORT RATE CASE, SUPRA; AMERICAN EXPRESS CO. V. SOUTH
DAKOTA, 244 U.S. 617; WISCONSIN COMMISSION V. CHICAGO, B.&Q.R. CO., 257
U.S. 563; FLORIDA V. UNITED STATES, 282 U.S. 194; GEORGIA COMMISSION V.
UNITED STATES, 283 U.S. 765; LOUISIANA COMMISSION V. TEXAS & N.O.R.
CO., 284 U.S. 125; UNITED STATES V. LOUISIANA, 290 U.S. 70; NORTH
CAROLINA V. UNITED STATES, 325 U.S. 507. 

FN4  SECTION 15A(2) OF THE ACT READS IN PERTINENT PART:  "IN THE
EXERCISE OF ITS POWER TO PRESCRIBE JUST AND REASONABLE RATES THE
COMMISSION SHALL INITIATE, MODIFY, ESTABLISH OR ADJUST SUCH RATES SO
THAT CARRIERS AS A WHOLE  ...  WILL, UNDER HONEST, EFFICIENT AND
ECONOMICAL MANAGEMENT AND REASONABLE EXPENDITURES FOR MAINTENANCE OF
WAY, STRUCTURES AND EQUIPMENT, EARN AN AGGREGATE ANNUAL NET RAILWAY
OPERATING INCOME EQUAL, AS NEARLY AS MAY BE, TO A FAIR RETURN UPON THE
AGGREGATE VALUE OF THE RAILWAY PROPERTY OF SUCH CARRIERS HELD FOR AND
USED IN THE SERVICE OF TRANSPORTATION  ...  ." 
..END :








STEELE V. BULOVA WATCH CO., INC. 344 U.S. 280 


NO. 38.  ARGUED NOVEMBER 10, 1952 - DECIDED DECEMBER 22, 1952 - 194 F.2D
567, AFFIRMED. 


UNDER THE LANHAM TRADE-MARK ACT OF 1946, 15 U.S.C. SEC. 1051 ET SEQ.,
A FEDERAL DISTRICT COURT HAS JURISDICTION TO AWARD RELIEF TO AN
AMERICAN CORPORATION AGAINST ACTS OF TRADE-MARK INFRINGEMENT AND UNFAIR
COMPETITION CONSUMMATED IN A FOREIGN COUNTRY BY A CITIZEN AND RESIDENT
OF THE UNITED STATES WHO PURCHASES PARTS HERE AND SOME OF WHOSE
PRODUCTS, SOLD ABROAD, ENTER THIS COUNTRY WHERE THEY MAY REFLECT
ADVERSELY ON THE AMERICAN CORPORATION'S TRADE REPUTATION.  PP. 281
289. 

(A)  IT IS NOT MATERIAL THAT THE INFRINGING TRADE-MARK WAS AFFIXED IN
A FOREIGN COUNTRY, OR THAT THE PURCHASE OF PARTS IN THIS COUNTRY, WHEN
VIEWED IN ISOLATION, DID NOT VIOLATE ANY LAW OF THE UNITED STATES.  P.
287. 

(B)  AMERICAN BANANA CO. V. UNITED FRUIT CO., 213 U.S. 347,
DISTINGUISHED.  PP. 288-289. 

(C)  WHERE THERE CAN BE NO INTERFERENCE WITH THE SOVEREIGNTY OF
ANOTHER NATION, THE DISTRICT COURT, IN EXERCISING ITS EQUITY POWERS,
MAY COMMAND PERSONS PROPERLY BEFORE IT TO CEASE OR PERFORM ACTS OUTSIDE
ITS TERRITORIAL JURISDICTION.  P. 289. 

STEELE ET AL. V. BULOVA WATCH CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

A FEDERAL DISTRICT COURT DISMISSED A SUIT FOR INJUNCTIVE AND MONETARY
RELIEF BROUGHT BY AN AMERICAN CORPORATION AGAINST A CITIZEN AND
RESIDENT OF THE UNITED STATES FOR ACTS OF TRADE-MARK INFRINGEMENT AND
UNFAIR COMPETITION CONSUMMATED IN MEXICO.  THE COURT OF APPEALS
REVERSED.  194 F.2D 567.  THIS COURT GRANTED CERTIORARI.  343 U.S.
962.  AFFIRMED, P. 289. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IS WHETHER A UNITED STATES DISTRICT COURT HAS JURISDICTION
TO AWARD RELIEF TO AN AMERICAN CORPORATION AGAINST ACTS OF TRADE-MARK
INFRINGEMENT AND UNFAIR COMPETITION CONSUMMATED IN A FOREIGN COUNTRY BY
A CITIZEN AND RESIDENT OF THE UNITED STATES.  BULOVA WATCH COMPANY,
INC., A NEW YORK CORPORATION, SUED STEELE, (FN1) PETITIONER HERE, IN
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS. 
THE GIST OF ITS COMPLAINT CHARGED THAT "BULOVA," A TRADE-MARK PROPERLY
REGISTERED UNDER THE LAWS OF THE UNITED STATES, HAD LONG DESIGNATED THE
WATCHES PRODUCED AND NATIONALLY ADVERTISED AND SOLD BY THE BULOVA WATCH
COMPANY; AND THAT PETITIONER, A UNITED STATES CITIZEN RESIDING IN SAN
ANTONIO, TEXAS, CONDUCTED A WATCH BUSINESS IN MEXICO CITY WHERE,
WITHOUT BULOVA'S AUTHORIZATION AND WITH THE PURPOSE OF DECEIVING THE
BUYING PUBLIC, HE STAMPED THE NAME "BULOVA" ON WATCHES THERE ASSEMBLED
AND SOLD.  BASING ITS PRAYER ON THESE ASSERTED VIOLATIONS OF THE TRADE
MARK LAWS OF THE UNITED STATES, (FN2) BULOVA REQUESTED INJUNCTIVE AND
MONETARY RELIEF.  PERSONALLY SERVED WITH PROCESS IN SAN ANTONIO,
PETITIONER ANSWERED BY CHALLENGING THE COURT'S JURISDICTION OVER THE
SUBJECT MATTER OF THE SUIT AND BY INTERPOSING SEVERAL DEFENSES,
INCLUDING HIS DUE REGISTRATION IN MEXICO OF THE MARK "BULOVA" AND THE
PENDENCY OF MEXICAN LEGAL PROCEEDINGS THEREON, TO THE MERITS OF
BULOVA'S CLAIM.  THE TRIAL JUDGE, HAVING INITIALLY RESERVED DISPOSITION
OF THE JURISDICTIONAL ISSUE UNTIL A HEARING ON THE MERITS, INTERRUPTED
THE PRESENTATION OF EVIDENCE AND DISMISSED THE COMPLAINT "WITH
PREJUDICE," ON THE GROUND THAT THE COURT LACKED JURISDICTION OVER THE
CAUSE.  THIS DECISION RESTED ON THE COURT'S FINDINGS THAT PETITIONER
HAD COMMITTED NO ILLEGAL ACTS WITHIN THE UNITED STATES.  (FN3)  WITH
ONE JUDGE DISSENTING, THE COURT OF APPEALS REVERSED; IT HELD THAT THE
PLEADINGS AND EVIDENCE DISCLOSED A CAUSE OF ACTION WITHIN THE REACH OF
THE LANHAM TRADE-MARK ACT OF 1946, 15 U.S.C. SEC. 1051 ET SEQ. (FN4)
THE DISSENTING JUDGE THOUGHT THAT "SINCE THE CONDUCT COMPLAINED OF
SUBSTANTIALLY RELATED SOLELY TO ACTS DONE AND TRADE CARRIED ON UNDER
FULL AUTHORITY OF MEXICAN LAW, AND WERE CONFINED TO AND AFFECTED ONLY
THAT NATION'S INTERNAL COMMERCE, THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO ENJOIN SUCH CONDUCT."  (FN5)  WE GRANTED CERTIORARI,
343 U.S. 962. 

PETITIONER CONCEDES, AS HE MUST, THAT CONGRESS IN PRESCRIBING
STANDARDS OF CONDUCT FOR AMERICAN CITIZENS MAY PROJECT THE IMPACT OF
ITS LAWS BEYOND THE TERRITORIAL BOUNDARIES OF THE UNITED STATES.  CF.
FOLEY BROS., INC. V. FILARDO, 336 U.S. 281, 284-285 (1949); BLACKMER V.
UNITED STATES, 284 U.S. 421, 436-437 (1932); BRANCH V. FEDERAL TRADE
COMMISSION, 141 F.2D 31 (1944).  RESOLUTION OF THE JURISDICTIONAL ISSUE
IN THIS CASE THEREFORE DEPENDS ON CONSTRUCTION OF EXERCISED
CONGRESSIONAL POWER, NOT THE LIMITATIONS UPON THAT POWER ITSELF.  AND
SINCE WE DO NOT PASS ON THE MERITS OF BULOVA'S CLAIM, WE NEED NOT NOW
EXPLORE EVERY FACET OF THIS COMPLEX (FN6) AND CONTROVERSIAL (FN7) ACT. 

THE LANHAM ACT, ON WHICH BULOVA POSITED ITS CLAIMS TO RELIEF, CONFERS
BROAD JURISDICTIONAL POWERS UPON THE COURTS OF THE UNITED STATES.  THE
STATUTE'S EXPRESSED INTENT IS "TO REGULATE COMMERCE WITHIN THE CONTROL
OF CONGRESS BY MAKING ACTIONABLE THE DECEPTIVE AND MISLEADING USE OF
MARKS IN SUCH COMMERCE; TO PROTECT REGISTERED MARKS USED IN SUCH
COMMERCE FROM INTERFERENCE BY STATE, OR TERRITORIAL LEGISLATION; TO
PROTECT PERSONS ENGAGED IN SUCH COMMERCE AGAINST UNFAIR COMPETITION; TO
PREVENT FRAUD AND DECEPTION IN SUCH COMMERCE BY THE USE OF
REPRODUCTIONS, COPIES, COUNTERFEITS, OR COLORABLE IMITATIONS OF
REGISTERED MARKS; AND TO PROVIDE RIGHTS AND REMEDIES STIPULATED BY
TREATIES AND CONVENTIONS RESPECTING TRADE-MARKS, TRADE NAMES, AND
UNFAIR COMPETITION ENTERED INTO BETWEEN THE UNITED STATES AND FOREIGN
NATIONS."  SEC. 45, 15 U.S.C. SEC. 1127.  TO THAT END, SEC. 32 (1)
HOLDS LIABLE IN A CIVIL ACTION BY A TRADE-MARK REGISTRANT "ANY PERSON
WHO SHALL, IN COMMERCE," INFRINGE A REGISTERED TRADE-MARK IN A MANNER
THERE DETAILED.  (FN8)  "COMMERCE" IS DEFINED AS "ALL COMMERCE WHICH
MAY LAWFULLY BE REGULATED BY CONGRESS."  SEC. 45, 15 U.S.C. SEC. 1127. 
THE DISTRICT COURTS OF THE UNITED STATES ARE GRANTED JURISDICTION OVER
ALL ACTIONS "ARISING UNDER" THE ACT, SEC. 39, 15 U.S.C. SEC. 1121, AND
CAN AWARD RELIEF WHICH MAY INCLUDE INJUNCTIONS, (FN9) "ACCORDING TO THE
PRINCIPLES OF EQUITY," TO PREVENT THE VIOLATION OF ANY REGISTRANT'S
RIGHTS.  SEC. 34, 15 U.S.C. SEC. 1116. 

THE RECORD REVEALS THE FOLLOWING SIGNIFICANT FACTS WHICH FOR PURPOSES
OF A DISMISSAL MUST BE TAKEN AS TRUE:  BULOVA WATCH COMPANY, ONE OF THE
LARGEST WATCH MANUFACTURERS IN THE WORLD, ADVERTISED AND DISTRIBUTED
"BULOVA" WATCHES IN THE UNITED STATES AND FOREIGN COUNTRIES.  SINCE
1929, ITS AURAL AND VISUAL ADVERTISING, IN SPANISH AND ENGLISH, HAS
PENETRATED MEXICO.  PETITIONER, LONG A RESIDENT OF SAN ANTONIO, FIRST
ENTERED THE WATCH BUSINESS THERE IN 1922, AND IN 1926 LEARNED OF THE
TRADE-MARK "BULOVA."  HE SUBSEQUENTLY TRANSFERRED HIS BUSINESS TO
MEXICO CITY AND, DISCOVERING THAT "BULOVA" HAD NOT BEEN REGISTERED IN
MEXICO, IN 1933 PROCURED THE MEXICAN REGISTRATION OF THAT MARK. 
ASSEMBLING SWISS WATCH MOVEMENTS AND DIALS AND CASES IMPORTED FROM THAT
COUNTRY AND THE UNITED STATES, PETITIONER IN MEXICO CITY STAMPED HIS
WATCHES WITH "BULOVA" AND SOLD THEM AS SUCH.  AS A RESULT OF THE
DISTRIBUTION OF SPURIOUS "BULOVAS," BULOVA WATCH COMPANY'S TEXAS SALES
REPRESENTATIVE RECEIVED NUMEROUS COMPLAINTS FROM RETAIL JEWELERS IN THE
MEXICAN BORDER AREA WHOSE CUSTOMERS BROUGHT IN FOR REPAIR DEFECTIVE
"BULOVAS" WHICH UPON INSPECTION OFTEN TURNED OUT NOT TO BE PRODUCTS OF
THAT COMPANY.  MOREOVER, SUBSEQUENT TO OUR GRANT OF CERTIORARI IN THIS
CASE THE PROLONGED LITIGATION IN THE COURTS OF MEXICO HAS COME TO AN
END.  ON OCTOBER 6, 1952, THE SUPREME COURT OF MEXICO RENDERED A
JUDGMENT UPHOLDING AN ADMINISTRATIVE RULING WHICH HAD NULLIFIED
PETITIONER'S MEXICAN REGISTRATION OF "BULOVA."  (FN10) 

ON THE FACTS IN THE RECORD WE AGREE WITH THE COURT OF APPEALS THAT
PETITIONER'S ACTIVITIES, WHEN VIEWED AS A WHOLE, FALL WITHIN THE
JURISDICTIONAL SCOPE OF THE LANHAM ACT.  THIS COURT HAS OFTEN STATED
THAT THE LEGISLATION OF CONGRESS WILL NOT EXTEND BEYOND THE BOUNDARIES
OF THE UNITED STATES UNLESS A CONTRARY LEGISLATIVE INTENT APPEARS. 
E.G., BLACKMER V. UNITED STATES, 284 U.S. 421, 437 (1932); FOLEY BROS.,
INC. V. FILARDO, 336 U.S. 281, 285 (1949).  THE QUESTION THUS IS
"WHETHER CONGRESS INTENDED TO MAKE THE LAW APPLICABLE" TO THE FACTS OF
THIS CASE.  IBID.  FOR "THE UNITED STATES 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.  WITH RESPECT TO
SUCH AN EXERCISE OF AUTHORITY THERE IS NO QUESTION OF INTERNATIONAL
LAW, BUT SOLELY OF THE PURPORT OF THE MUNICIPAL LAW WHICH ESTABLISHES
THE DUTY OF THE CITIZEN IN RELATION TO HIS OWN GOVERNMENT."  SKIRIOTES
V. FLORIDA, 313 U.S. 69, 73 (1941).  (FN11) AS MR. JUSTICE MINTON, THEN
SITTING ON THE COURT OF APPEALS, APPLIED THE PRINCIPLE IN A CASE
INVOLVING UNFAIR METHODS OF COMPETITION:  "CONGRESS HAS THE POWER TO
PREVENT UNFAIR TRADE PRACTICES IN FOREIGN COMMERCE BY CITIZENS OF THE
UNITED STATES, ALTHOUGH SOME OF THE ACTS ARE DONE OUTSIDE THE
TERRITORIAL LIMITS OF THE UNITED STATES."  BRANCH V. FEDERAL TRADE
COMMISSION, 141 F.2D 31, 35 (1944).  NOR HAS THIS COURT IN TRACING THE
COMMERCE SCOPE OF STATUTES DIFFERENTIATED BETWEEN ENFORCEMENT OF
LEGISLATIVE POLICY BY THE GOVERNMENT ITSELF OR BY PRIVATE LITIGANTS
PROCEEDING UNDER STATUTORY RIGHT.  THOMSEN V. CAYSER, 243 U.S. 66
(1917); MANDEVILLE ISLAND FARMS V. AMERICAN CRYSTAL SUGAR CO., 334 U.S.
219 (1948); CF. VERMILYA-BROWN CO. V. CONNELL, 335 U.S. 377 (1948);
FOLEY BROS., INC. V. FILARDO, SUPRA.  THE PUBLIC POLICY SUBSERVED IS
THE SAME IN EACH CASE.  IN THE LIGHT OF THE BROAD JURISDICTIONAL GRANT
IN THE LANHAM ACT, WE DEEM ITS SCOPE TO ENCOMPASS PETITIONER'S
ACTIVITIES HERE.  HIS OPERATIONS AND THEIR EFFECTS WERE NOT CONFINED
WITHIN THE TERRITORIAL LIMITS OF A FOREIGN NATION.  HE BOUGHT COMPONENT
PARTS OF HIS WARES IN THE UNITED STATES, AND SPURIOUS "BULOVAS"
FILTERED THROUGH THE MEXICAN BORDER INTO THIS COUNTRY; HIS COMPETING
GOODS COULD WELL REFLECT ADVERSELY ON BULOVA WATCH COMPANY'S TRADE
REPUTATION IN MARKETS CULTIVATED BY ADVERTISING HERE AS WELL AS
ABROAD.  UNDER SIMILAR FACTUAL CIRCUMSTANCES, COURTS OF THE UNITED
STATES HAVE AWARDED RELIEF TO REGISTERED TRADE-MARK OWNERS, EVEN PRIOR
TO THE ADVENT OF THE BROADENED COMMERCE PROVISIONS OF THE LANHAM ACT. 
(FN12)  GEORGE W. LUFT CO. V. ZANDE COSMETIC CO., 142 F.2D 536 (1944);
HECKER H-O CO. V. HOLLAND FOOD CORP., 36 F.2D 767 (1929); VACUUM OIL
CO. V. EAGLE OIL CO., 154 F. 867 (1907), AFF'D, 162 F. 671 (1908).  CF.
MORRIS V. ALTSTEDTER, 93 MISC. 329, 156 N.Y.S. 1103, AFF'D, 173 APP.
DIV. 932, 158 N.Y.S. 1123 (1916).  EVEN WHEN MOST JEALOUSLY READ, THAT
ACT'S SWEEPING REACH INTO "ALL COMMERCE WHICH MAY LAWFULLY BE REGULATED
BY CONGRESS" DOES NOT CONSTRICT PRIOR LAW OR DEPRIVE COURTS OF
JURISDICTION PREVIOUSLY EXERCISED.  WE DO NOT DEEM MATERIAL THAT
PETITIONER AFFIXED THE MARK "BULOVA" IN MEXICO CITY RATHER THAN HERE,
(FN13) OR THAT HIS PURCHASES IN THE UNITED STATES WHEN VIEWED IN
ISOLATION DO NOT VIOLATE ANY OF OUR LAWS.  THEY WERE ESSENTIAL STEPS IN
THE COURSE OF BUSINESS CONSUMMATED ABROAD; ACTS IN THEMSELVES LEGAL
LOSE THAT CHARACTER WHEN THEY BECOME PART OF AN UNLAWFUL SCHEME. 
UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707, 720 (1944);
UNITED STATES V. UNIVIS LENS CO., 316 U.S. 241, 254 (1942).  "IN SUCH A
CASE IT IS NOT MATERIAL THAT THE SOURCE OF THE FORBIDDEN EFFECTS UPON
...  COMMERCE ARISES IN ONE PHASE OR ANOTHER OF THAT PROGRAM." 
MANDEVILLE ISLAND FARMS V. AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219,
237 (1948).  CF. UNITED STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293,
297-298 (1945).  IN SUM, WE DO NOT THINK THAT PETITIONER BY SO SIMPLE A
DEVICE CAN EVADE THE THRUST OF THE LAWS OF THE UNITED STATES IN A
PRIVILEGED SANCTUARY BEYOND OUR BORDERS. 

AMERICAN BANANA CO. V. UNITED FRUIT CO., 213 U.S. 347 (1909), COMPELS
NOTHING TO THE CONTRARY.  THIS COURT THERE UPHELD A COURT OF APPEALS'
AFFIRMANCE OF THE TRIAL COURT'S DISMISSAL OF A PRIVATE DAMAGE ACTION
PREDICATED ON ALLEGED VIOLATIONS OF THE SHERMAN ACT.  (FN14)  THE
COMPLAINT, IN SUBSTANCE, CHARGED UNITED FRUIT COMPANY WITH
MONOPOLIZATION OF THE BANANA IMPORT TRADE BETWEEN CENTRAL AMERICA AND
THE UNITED STATES, AND WITH THE INSTIGATION OF COSTA RICAN GOVERNMENTAL
AUTHORITIES TO SEIZE PLAINTIFF'S PLANTATION AND PRODUCE IN PANAMA.  THE
COURT OF APPEALS REASONED THAT PLAINTIFF HAD SHOWN NO DAMAGE FROM THE
ASSERTED MONOPOLY AND COUND NOT FOUND LIABILITY ON THE SEIZURE, A
SOVEREIGN ACT OF ANOTHER NATION.  (FN15)  THIS COURT AGREED THAT A
VIOLATION OF AMERICAN LAWS COULD NOT BE GROUNDED ON A FOREIGN NATION'S
SOVEREIGN ACTS.  VIEWED IN ITS CONTEXT, THE HOLDING IN THAT CASE WAS
NOT MEANT TO CONFER BLANKET IMMUNITY ON TRADE PRACTICES WHICH RADIATE
UNLAWFUL CONSEQUENCES HERE, MERELY BECAUSE THEY WERE INITIATED OR
CONSUMMATED OUTSIDE THE TERRITORIAL LIMITS OF THE UNITED STATES. 
UNLAWFUL EFFECTS IN THIS COUNTRY, ABSENT IN THE POSTURE OF THE BANANA
CASE BEFORE US, ARE OFTEN DECISIVE; THIS COURT HELD AS MUCH IN THOMSEN
V. CAYSER, 243 U.S. 66 (1917), AND UNITED STATES V. SISAL SALES CORP.,
274 U.S. 268 (1927).  (FN16)  AS IN SISAL, THE CRUX OF THE COMPLAINT
HERE IS "NOT MERELY OF SOMETHING DONE BY ANOTHER GOVERNMENT AT THE
INSTIGATION OF PRIVATE PARTIES;" PETITIONER BY HIS "OWN DELIBERATE
ACTS, HERE AND ELSEWHERE,  ...  BROUGHT ABOUT FORBIDDEN RESULTS WITHIN
THE UNITED STATES."  274 U.S., AT 276.  AND, UNLIKE THE BANANA CASE,
WHATEVER RIGHTS MEXICO ONCE CONFERRED ON PETITIONER ITS COURTS NOW HAVE
DECIDED TO TAKE AWAY. 

NOR DO WE DOUBT THE DISTRICT COURT'S JURISDICTION TO AWARD
APPROPRIATE INJUNCTIVE RELIEF IF WARRANTED BY THE FACTS AFTER TRIAL. 
15 U.S.C. SECS. 1116, 1121.  MEXICO'S COURTS HAVE NULLIFIED THE MEXICAN
REGISTRATION OF "BULOVA"; THERE IS THUS NO CONFLICT WHICH MIGHT AFFORD
PETITIONER A PRETEXT THAT SUCH RELIEF WOULD IMPUGN FOREIGN LAW.  THE
QUESTION, THEREFORE, WHETHER A VALID FOREIGN REGISTRATION WOULD AFFECT
EITHER THE POWER TO ENJOIN OR THE PROPRIETY OF ITS EXERCISE IS NOT
BEFORE US.  WHERE, AS HERE, THERE CAN BE NO INTERFERENCE WITH THE
SOVEREIGNTY OF ANOTHER NATION, THE DISTRICT COURT IN EXERCISING ITS
EQUITY POWERS MAY COMMAND PERSONS PROPERLY BEFORE IT TO CEASE OR
PERFORM ACTS OUTSIDE ITS TERRITORIAL JURISDICTION.  NEW JERSEY V. NEW
YORK, 283 U.S. 473 (1931); MASSIE V. WATTS, 6 CRANCH 148 (1810); THE
SALTON SEA CASES, 172 F. 792 (1909); CF. UNITED STATES V. NATIONAL LEAD
CO., 332 U.S. 319, 351-352, 363 (1947).  (FN17)  AFFIRMED.    FN1
JOINED AS PARTIES DEFENDANT WERE S. STEELE Y CIA., S.A., A MEXICAN
CORPORATION TO WHOSE RIGHTS STEELE HAD SUCCEEDED, AND STEELE'S WIFE
SOFIA WHO POSSESSED A COMMUNITY INTEREST UNDER TEXAS LAW. 

FN2  WHILE THE RECORD SHOWS THAT PLAINTIFF FULLY RELIED ON HIS
ASSERTED CAUSE OF ACTION "ARISING UNDER" THE LANHAM ACT, DIVERSITY OF
CITIZENSHIP AND THE JURISDICTIONAL AMOUNT WERE ALSO AVERRED.  AS WE ARE
CONCERNED SOLELY WITH THE DISTRICT COURT'S JURISDICTION OVER THE
SUBJECT MATTER OF THIS SUIT, WE DO NOT STOP TO CONSIDER THE
SIGNIFICANCE, IF ANY, OF THOSE AVERMENTS.  CF. PECHEUR LOZENGE CO. V.
NATIONAL CANDY CO., 315 U.S. 666 (1942), DECIDED PRIOR TO PASSAGE OF
THE LANHAM ACT.  SEE ALSO NOTE 6, INFRA. 

FN3  THE DISTRICT COURT'S UNREPORTED FINDINGS OF FACT AND CONCLUSIONS
OF LAW, AS AMENDED, APPEAR AT R. 246-248.  CF. R. 232, 237. 

FN4  194 F.2D 567 (C.A. 5TH CIR. 1952). 

FN5  ID., AT 573. 

FN6  FOR ABLE COURT OF APPEALS DISCUSSIONS OF THE IMPACT OF ERIE R.
CO. V. TOMPKINS, 304 U.S. 64 (1938) ON THE LAW PRIOR AND SUBSEQUENT TO
THE LANHAM ACT, SEE DAD'S ROOT BEER CO. V. DOC'S BEVERAGES, INC., 193
F.2D 77 (C.A.2D CIR. 1951); S.C. JOHNSON & SON V. JOHNSON, 175 F.2D 176
(C.A.2D CIR. 1949); CAMPBELL SOUP CO. V. ARMOUR & CO., 175 F.2D 795
(C.A. 3D CIR. 1949); STAUFFER V. EXLEY, 184 F.2D 962 (C.A. 9TH CIR.
1950).  SEE ALSO NATIONAL FRUIT PRODUCT CO. V. DWINELL-WRIGHT CO., 47
F. SUPP. 499 (1942).  AND SEE ZLINKOFF, ERIE V. TOMPKINS:  IN RELATION
TO THE LAW OF TRADE-MARKS AND UNFAIR COMPETITION, 42 COL. L. REV. 955
(1942); BUNN, THE NATIONAL LAW OF UNFAIR COMPETITION, 62 HARV. L. REV.
987 (1949). 

FN7 SEE, E.G., TIMBERG, TRADE-MARKS, MONOPOLY, AND THE RESTRAINTS OF
COMPETITION, 14 LAW & CONTEMP.  PROBS.  323 (1949); CF. BROWN,
ADVERTISING AND THE PUBLIC INTEREST: LEGAL PROTECTION OF TRADE SYMBOLS,
57 YALE L.J. 1165 (1948).  COMPARE, E.G., PATTISHALL, TRADE-MARKS AND
THE MONOPOLY PHOBIA, 50 MICH. L. REV. 967 (1952); ROGERS, THE LANHAM
ACT AND THE SOCIAL FUNCTION OF TRADE-MARKS, 14 LAW & CONTEMP.  PROBS. 
173 (1949). 

FN8  "ANY PERSON WHO SHALL, IN COMMERCE, (A) USE, WITHOUT THE CONSENT
OF THE REGISTRANT, ANY REPRODUCTION, COUNTERFEIT, COPY, OR COLORABLE
IMITATION OF ANY REGISTERED MARK IN CONNECTION WITH THE SALE, OFFERING
FOR SALE, OR ADVERTISING OF ANY GOODS OR SERVICES ON OR IN CONNECTION
WITH WHICH SUCH USE IS LIKELY TO CAUSE CONFUSION OR MISTAKE OR TO
DECEIVE PURCHASERS AS TO THE SOURCE OF ORIGIN OF SUCH GOODS OR
SERVICES; OR (B) REPRODUCE, COUNTERFEIT, COPY, OR COLORABLY IMITATE ANY
SUCH MARK AND APPLY SUCH REPRODUCTION, COUNTERFEIT, COPY, OR COLORABLE
IMITATION TO LABELS, SIGNS, PRINTS, PACKAGES, WRAPPERS, RECEPTACLES, OR
ADVERTISEMENTS INTENDED TO BE USED UPON OR IN CONNECTION WITH THE SALE
IN COMMERCE OF SUCH GOODS OR SERVICES, SHALL BE LIABLE TO A CIVIL
ACTION BY THE REGISTRANT FOR ANY OR ALL OF THE REMEDIES HEREINAFTER
PROVIDED IN THIS CHAPTER,  ...  ."  15 U.S.C. SEC. 1114(1). 

FN9  SEE ALSO SEC. 35, 15 U.S.C. SEC. 1117 (PROFITS, DAMAGES AND
COSTS); SEC. 36, 15 U.S.C. SEC. 1118 (DESTRUCTION OF INFRINGING
ARTICLES); SEC. 38, 15 U.S.C. SEC. 1120 (DAMAGES FOR FRAUDULENT
REGISTRATION). 

FN10  SIDNEY STEELE V. SECRETARY OF THE NATIONAL ECONOMY, DECIDED BY
THE SECOND COURT OF THE SUPREME COURT OF MEXICO.  THAT DECISION IS
REPRINTED, AS TRANSLATED, AS APPENDIX III TO RESPONDENT'S BRIEF. 

FN11  SEE, E.G., 1 OPPENHEIM, INTERNATIONAL LAW (6TH ED.,
LAUTERPACHT, 1947), SEC. 145, P. 297. 

FN12  CF. 15 U.S.C. SECS. 96, 124, REQUIRING THE INFRINGING USE TO BE
"IN COMMERCE AMONG THE SEVERAL STATES, OR WITH A FOREIGN NATION." 
UNITED STATES PRINTING & LITHOGRAPH CO. V. GRIGGS, COOPER & CO., 279
U.S. 156 (1929); PURE OIL CO. V. PURITAN OIL CO., 127 F.2D 6 (1942). 

FN13  SEE VACUUM OIL CO. V. EAGLE OIL CO., 154 F. 867 (1907). 

FN14  166 F. 261 (C.A.2D CIR. 1908), AFFIRMING 160 F. 184. 

FN15  166 F., AT 264, 266. 

FN16  SEE ALSO UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D
416, 443-444 (1945).  CF. FORD V. UNITED STATES, 273 U.S. 593, 620-621
(1927); LAMAR V. UNITED STATES, 240 U.S. 60, 65-66 (1916); STRASSHEIM
V. DAILY, 221 U.S. 280, 284-285 (1911). 

FN17  CF. COLE V. CUNNINGHAM, 133 U.S. 107, 117-119 (1890); PHELPS V.
MCDONALD, 99 U.S. 298, 307-308 (1879); SECURITIES AND EXCHANGE
COMMISSION V. MINAS DE ARTEMISA, S.A., 150 F.2D 215 (1945);
RESTATEMENT, CONFLICT OF LAWS, SECS. 94, 96.  AND SEE BRITISH NYLON
SPINNERS, LTD. V. IMPERIAL CHEMICAL INDUSTRIES, LTD., (1952) 2 ALL ENG.
780, 782 (C.A.). 

MR. JUSTICE BLACK TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE PURPOSE OF THE LANHAM ACT IS TO PREVENT DECEPTIVE AND MISLEADING
USE OF TRADE-MARKS.  SEC. 45, 15 U.S.C. SEC. 1127.  TO FURTHER THAT
PURPOSE THE ACT MAKES LIABLE IN AN ACTION BY THE REGISTERED HOLDER OF
THE TRADE-MARK "ANY PERSON WHO SHALL, IN COMMERCE," INFRINGE SUCH TRADE
MARK.  SEC. 32(1), 15 U.S.C. SEC. 1114.  "COMMERCE" IS DEFINED AS BEING
"ALL COMMERCE WHICH MAY LAWFULLY BE REGULATED BY CONGRESS."  SEC. 45,
15 U.S.C. SEC. 1127. 

THE COURT'S OPINION BASES JURISDICTION ON THE LANHAM ACT.  IN THE
INSTANT CASE THE ONLY ALLEGED ACTS OF INFRINGEMENT OCCURRED IN MEXICO. 
THE ACTS COMPLAINED OF WERE THE STAMPING OF THE NAME "BULOVA" ON
WATCHES AND THE SUBSEQUENT SALE OF THE WATCHES.  THERE WERE PURCHASES
OF ASSEMBLY MATERIAL IN THIS COUNTRY BY PETITIONERS.  PURCHASERS FROM
PETITIONERS IN MEXICO BROUGHT THE ASSEMBLED WATCHES INTO THE UNITED
STATES.  ASSUMING THAT CONGRESS HAS THE POWER TO CONTROL ACTS OF OUR
CITIZENS THROUGHOUT THE WORLD, THE QUESTION PRESENTED IS ONE OF
STATUTORY CONSTRUCTION:  WHETHER CONGRESS INTENDED THE ACT TO APPLY TO
THE CONDUCT HERE EXPOSED. 

"THE CANON OF CONSTRUCTION WHICH TEACHES THAT LEGISLATION OF
CONGRESS, UNLESS A CONTRARY INTENT APPEARS, IS MEANT TO APPLY ONLY
WITHIN THE TERRITORIAL JURISDICTION OF THE UNITED STATES, BLACKMER V.
UNITED STATES, (284 U.S. 421), 437, IS A VALID APPROACH WHEREBY
UNEXPRESSED CONGRESSIONAL INTENT MAY BE ASCERTAINED."  FOLEY BROS.,
INC. V. FILARDO, 336 U.S. 281, 285.  UTILIZING THIS APPROACH, DOES SUCH
A CONTRARY INTENT APPEAR IN THE LANHAM ACT?  IF IT DOES, IT APPEARS
ONLY IN BROAD AND GENERAL TERMS, I.E., "TO REGULATE COMMERCE WITHIN THE
CONTROL OF CONGRESS  ...  ."  SEC. 45, 15 U.S.C. SEC. 1127.  LANGUAGE
OF SUCH NONEXPLICIT SCOPE WAS CONSIDERED BY THE COURT IN CONSTRUING THE
SHERMAN ACT IN AMERICAN BANANA CO. V. UNITED FRUIT CO., 213 U.S. 347,
357.  "WORDS HAVING UNIVERSAL SCOPE, SUCH AS 'EVERY CONTRACT IN
RESTRAINT OF TRADE,' 'EVERY PERSON WHO SHALL MONOPOLIZE,' ETC., WILL BE
TAKEN AS A MATTER OF COURSE TO MEAN ONLY EVERY ONE SUBJECT TO SUCH
LEGISLATION, NOT ALL THAT THE LEGISLATOR SUBSEQUENTLY MAY BE ABLE TO
CATCH."  THE AMERICAN BANANA CO. CASE CONFINED THE SHERMAN ACT IN ITS
"OPERATION AND EFFECT TO THE TERRITORIAL LIMITS OVER WHICH THE LAWMAKER
HAS GENERAL AND LEGITIMATE POWER."  213 U.S., AT 357.  THIS WAS HELD TO
BE TRUE AS TO ACTS OUTSIDE THE UNITED STATES, ALTHOUGH THE PARTIES WERE
ALL CORPORATE CITIZENS OF THE UNITED STATES SUBJECT TO PROCESS OF THE
FEDERAL COURTS. 

THE GENERALLY PHRASED CONGRESSIONAL INTENT IN THE LANHAM ACT IS TO BE
COMPARED WITH THE LANGUAGE OF THE FAIR LABOR STANDARDS ACT WHICH WE
CONSTRUED IN VERMILYA-BROWN CO. V. CONNELL, 335 U.S. 377.  THERE WE
HELD THAT BY EXPLICITLY STATING THAT THE ACT COVERED "POSSESSIONS" OF
THE UNITED STATES, CONGRESS HAD INTENDED THAT THE ACT WAS TO BE IN
EFFECT IN ALL "POSSESSIONS" AND WAS NOT TO BE APPLIED MERELY IN THOSE
AREAS UNDER THE TERRITORIAL JURISDICTION OR SOVEREIGNTY OF THE UNITED
STATES. 

THERE ARE, OF COURSE, CASES IN WHICH A STATEMENT OF SPECIFIC CONTRARY
INTENT WILL NOT BE DEEMED SO NECESSARY.  WHERE THE CASE INVOLVES THE
CONSTRUCTION OF A CRIMINAL STATUTE "ENACTED BECAUSE OF THE RIGHT OF THE
GOVERNMENT TO DEFEND ITSELF AGAINST OBSTRUCTION, OR FRAUD  ...
COMMITTED BY ITS OWN CITIZENS," IT IS NOT NECESSARY FOR CONGRESS TO
MAKE SPECIFIC PROVISIONS THAT THE LAW "SHALL INCLUDE THE HIGH SEAS AND
FOREIGN COUNTRIES."  UNITED STATES V. BOWMAN, 260 U.S. 94, 98.  THIS IS
ALSO TRUE WHEN IT IS A QUESTION OF THE SOVEREIGN POWER OF THE UNITED
STATES TO REQUIRE THE RESPONSE OF A NONRESIDENT CITIZEN.  BLACKMER V.
UNITED STATES, 284 U.S. 421.  A SIMILAR SITUATION IS MET WHERE A
STATUTE IS APPLIED TO ACTS COMMITTED BY CITIZENS IN AREAS SUBJECT TO
THE LAWS OF NO SOVEREIGN.  SEE SKIRIOTES V. FLORIDA, 313 U.S. 69; OLD
DOMINION S.S. CO. V. GILMORE, 207 U.S. 398. 

IN THE INSTANT CASE NONE OF THESE EXCEPTIONAL CONSIDERATIONS COME
INTO PLAY.  PETITIONER'S BUYING OF UNFINISHED WATCHES IN THE UNITED
STATES IS NOT AN ILLEGAL COMMERCIAL ACT.  NOR CAN IT BE SAID THAT
PETITIONERS WERE ENGAGING IN ILLEGAL ACTS IN COMMERCE WHEN THE FINISHED
WATCHES BEARING THE MEXICAN TRADE-MARK WERE PURCHASED FROM THEM AND
BROUGHT INTO THE UNITED STATES BY SUCH PURCHASERS, ALL WITHOUT
COLLUSION BETWEEN PETITIONER AND THE PURCHASER.  THE STAMPING OF THE
BULOVA TRADE-MARK, DONE IN MEXICO, IS NOT AN ACT "WITHIN THE CONTROL OF
CONGRESS."  IT SHOULD NOT BE UTILIZED AS A BASIS FOR ACTION AGAINST
PETITIONER.  THE LANHAM ACT, LIKE THE SHERMAN ACT, SHOULD BE CONSTRUED
TO APPLY ONLY TO ACTS DONE WITHIN THE SOVEREIGNTY OF THE UNITED
STATES.  WHILE WE DO NOT CONDONE THE PIRATIC USE OF TRADE-MARKS,
NEITHER DO WE BELIEVE THAT CONGRESS INTENDED TO MAKE SUCH USE
ACTIONABLE IRRESPECTIVE OF THE PLACE IT OCCURRED.  SUCH EXTENSIONS OF
POWER BRING OUR LEGISLATION INTO CONFLICT WITH THE LAWS AND PRACTICES
OF OTHER NATIONS, FULLY CAPABLE OF PUNISHING INFRACTIONS OF THEIR OWN
LAWS, AND SHOULD REQUIRE SPECIFIC WORDS TO REACH ACTS DONE WITHIN THE
TERRITORIAL LIMITS OF OTHER SOVEREIGNTIES. 
..END :













WIEMAN V. UPDEGRAFF 344 U.S. 183 


NO. 14.  ARGUED OCTOBER 16, 1952 - DECIDED DECEMBER 15, 1952 - 205 OKLA.
301, 237 P.2D 131, REVERSED. 


OKLAHOMA STAT. ANN., 1950, TIT. 51, SECS. 37.1-37.8 (1952 SUPP.),
REQUIRES EACH STATE OFFICER AND EMPLOYEE, AS A CONDITION OF HIS
EMPLOYMENT, TO TAKE A "LOYALTY OATH," STATING, INTER ALIA, THAT HE IS
NOT, AND HAS NOT BEEN FOR THE PRECEDING FIVE YEARS, A MEMBER OF ANY
ORGANIZATION LISTED BY THE ATTORNEY GENERAL OF THE UNITED STATES AS
"COMMUNIST FRONT" OR "SUBVERSIVE."  AS CONSTRUED BY THE SUPREME COURT
OF OKLAHOMA, IT EXCLUDES PERSONS FROM STATE EMPLOYMENT SOLELY ON THE
BASIS OF MEMBERSHIP IN SUCH ORGANIZATIONS, REGARDLESS OF THEIR
KNOWLEDGE CONCERNING THE ACTIVITIES AND PURPOSES OF THE ORGANIZATIONS
TO WHICH THEY HAD BELONGED.  HELD:  AS THUS CONSTRUED, THE ACT VIOLATES
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 184-192. 

(A)  THE DUE PROCESS CLAUSE DOES NOT PERMIT A STATE, IN ATTEMPTING TO
BAR DISLOYAL PERSONS FROM ITS EMPLOYMENT ON THE BASIS OF ORGANIZATIONAL
MEMBERSHIP, TO CLASSIFY INNOCENT WITH KNOWING ASSOCIATION.  ADLER V.
BOARD OF EDUCATION, 342 U.S. 485; GERENDE V. BOARD OF SUPERVISORS, 341
U.S. 56; AND GARNER V. BOARD OF PUBLIC WORKS, 341 U.S. 716,
DISTINGUISHED.  PP. 188-191. 

(B)  THE PROTECTION OF THE DUE PROCESS CLAUSE EXTENDS TO A PUBLIC
SERVANT WHOSE EXCLUSION PURSUANT TO A STATUTE IS PATENTLY ARBITRARY OR
DISCRIMINATORY.  ADLER V. BOARD OF EDUCATION, 342 U.S. 485, AND UNITED
PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, DISTINGUISHED.  PP. 191-192. 

WIEMAN ET AL. V. UPDEGRAFF ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

THE SUPREME COURT OF OKLAHOMA AFFIRMED THE JUDGMENT OF A TRIAL COURT
SUSTAINING THE CONSTITUTIONALITY OF OKLA. STAT. ANN., 1950, TIT. 51,
SECS. 37.1-37.8 (1952 SUPP.), AND ENJOINING PAYMENT OF SALARIES TO
STATE EMPLOYEES WHO HAD REFUSED TO SUBSCRIBE TO THE "LOYALTY OATH"
REQUIRED BY THAT ACT.  205 OKLA. 301, 237 P.2D 131.  ON APPEAL TO THIS
COURT, REVERSED, P. 192. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A DECISION OF THE SUPREME COURT OF OKLAHOMA
UPHOLDING THE VALIDITY OF A LOYALTY OATH (FN1) PRESCRIBED BY OKLAHOMA
STATUTE FOR ALL STATE OFFICERS AND EMPLOYEES.  OKLA. STAT. ANN., 1950,
TIT. 51, SECS. 37.1-37.8 (1952 SUPP.).  APPELLANTS, EMPLOYED BY THE
STATE AS MEMBERS OF THE FACULTY AND STAFF OF OKLAHOMA AGRICULTURAL AND
MECHANICAL COLLEGE, FAILED, WITHIN THE THIRTY DAYS PERMITTED, TO TAKE
THE OATH REQUIRED BY THE ACT.  APPELLEE UPDEGRAFF, AS A CITIZEN AND
TAXPAYER, THEREUPON BROUGHT THIS SUIT IN THE DISTRICT COURT OF OKLAHOMA
COUNTY TO ENJOIN THE NECESSARY STATE OFFICIALS FROM PAYING FURTHER
COMPENSATION TO EMPLOYEES WHO HAD NOT SUBSCRIBED TO THE OATH.  THE
APPELLANTS, WHO WERE PERMITTED TO INTERVENE, ATTACKED THE VALIDITY OF
THE ACT ON THE GROUNDS, AMONG OTHERS, THAT IT WAS A BILL OF ATTAINDER;
AN EX POST FACTO LAW; IMPAIRED THE OBLIGATION OF THEIR CONTRACTS WITH
THE STATE AND VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THEY ALSO SOUGHT A MANDATORY INJUNCTION DIRECTING THE STATE
OFFICERS TO PAY THEIR SALARIES REGARDLESS OF THEIR FAILURE TO TAKE THE
OATH.  THEIR OBJECTIONS CENTERED LARGELY ON THE FOLLOWING CLAUSES OF
THE OATH: 

"  ...  THAT I AM NOT AFFILIATED DIRECTLY OR INDIRECTLY ...  WITH ANY
FOREIGN POLITICAL AGENCY, PARTY, ORGANIZATION OR GOVERNMENT, OR WITH
ANY AGENCY, PARTY, ORGANIZATION, ASSOCIATION, OR GROUP WHATEVER WHICH
HAS BEEN OFFICIALLY DETERMINED BY THE UNITED STATES ATTORNEY GENERAL OR
OTHER AUTHORIZED AGENCY OF THE UNITED STATES TO BE A COMMUNIST FRONT OR
SUBVERSIVE ORGANIZATION; ... THAT I WILL TAKE UP ARMS IN THE DEFENSE OF
THE UNITED STATES IN TIME OF WAR, OR NATIONAL EMERGENCY, IF NECESSARY;
THAT WITHIN THE FIVE (5) YEARS IMMEDIATELY PRECEDING THE TAKING OF THIS
OATH (OR AFFIRMATION) I HAVE NOT BEEN A MEMBER OF  ...  ANY AGENCY,
PARTY, ORGANIZATION, ASSOCIATION, OR GROUP WHATEVER WHICH HAS BEEN
OFFICIALLY DETERMINED BY THE UNITED STATES ATTORNEY GENERAL OR OTHER
AUTHORIZED PUBLIC AGENCY OF THE UNITED STATES TO BE A COMMUNIST FRONT
OR SUBVERSIVE ORGANIZATION ...  ." 

THE COURT UPHELD THE ACT AND ENJOINED THE STATE OFFICERS FROM MAKING
FURTHER SALARY PAYMENTS TO APPELLANTS.  THE SUPREME COURT OF OKLAHOMA
AFFIRMED, SUB NOM. BOARD OF REGENTS V. UPDEGRAFF, 205 OKLA. 301, 237
P.2D 131 (1951).  (FN2)  WE NOTED PROBABLE JURISDICTION BECAUSE OF THE
PUBLIC IMPORTANCE OF THIS TYPE OF LEGISLATION AND THE RECURRING SERIOUS
CONSTITUTIONAL QUESTIONS WHICH IT PRESENTS. 

THE DISTRICT COURT OF OKLAHOMA COUNTY IN HOLDING THE ACT VALID
CONCLUDED THAT THE APPELLANTS WERE COMPELLED TO TAKE THE OATH AS
WRITTEN; THAT THE APPELLANTS "AND EACH OF THEM, DID NOT TAKE AND
SUBSCRIBE TO THE OATH AS PROVIDED IN SECTION 2 OF THE ACT AND WILFULLY
REFUSED TO TAKE THAT OATH AND BY REASON THEREOF THE BOARD OF REGENTS IS
ENJOINED FROM PAYING THEM, AND THEIR EMPLOYMENT IS TERMINATED."  IN
AFFIRMING, THE SUPREME COURT OF OKLAHOMA HELD THAT THE PHRASE OF THE
OATH "ANY FOREIGN POLITICAL AGENCY, PARTY, ORGANIZATION OR GOVERNMENT,
OR WITH ANY AGENCY, PARTY, ORGANIZATION, ASSOCIATION, OR GROUP WHATEVER
WHICH HAS BEEN OFFICIALLY DETERMINED BY THE UNITED STATES ATTORNEY
GENERAL OR OTHER AUTHORIZED AGENCY OF THE UNITED STATES TO BE A
COMMUNIST FRONT OR SUBVERSIVE ORGANIZATION" ACTUALLY "REFERS TO A LIST
OR LISTS OF SUCH ORGANIZATIONS IN EXISTENCE AT THE TIME OF THE PASSAGE
OF THE ACT WHICH HAD BEEN PREPARED BY THE ATTORNEY GENERAL OF THE
UNITED STATES UNDER GOVERNMENTAL DIRECTIVE.  SUCH LIST OR LISTS ARE IN
EFFECT MADE A PART OF THE OATH BY REFERENCE."  ON THIS POINT THE
OPINION CONTINUES:  "THERE IS NO REQUIREMENT IN THE ACT THAT AN OATH BE
TAKEN OF NONMEMBERSHIP IN ORGANIZATIONS NOT ON THE LIST OF THE ATTORNEY
GENERAL OF THE UNITED STATES AT THE TIME OF THE PASSAGE OF THIS ACT." 

WE READ THIS PART OF THE HIGHEST STATE COURT'S DECISION AS LIMITING
THE ORGANIZATIONS PROSCRIBED BY THE ACT TO THOSE DESIGNATED ON THE LIST
OR LISTS OF THE ATTORNEY GENERAL WHICH HAD BEEN ISSUED PRIOR TO THE
EFFECTIVE DATE OF THE ACT.  ALTHOUGH THIS INTERPRETATION DISCARDED
CLEAR LANGUAGE OF THE OATH AS SURPLUSAGE, THE COURT DENIED THE
APPELLANTS' PETITION FOR REHEARING WHICH INCLUDED A PLEA THAT REFUSAL
OF THE COURT TO PERMIT APPELLANTS TO TAKE THE OATH AS SO INTERPRETED
WAS VIOLATIVE OF DUE PROCESS. 

THE PURPOSE OF THE ACT, WE ARE TOLD, "WAS TO MAKE LOYALTY A
QUALIFICATION TO HOLD PUBLIC OFFICE OR BE EMPLOYED BY THE STATE."  205
OKLA., AT 305, 237 P.2D, AT 136.  DURING PERIODS OF INTERNATIONAL
STRESS, THE EXTENT OF LEGISLATION WITH SUCH OBJECTIVES ACCENTUATES OUR
TRADITIONAL CONCERN ABOUT THE RELATION OF GOVERNMENT TO THE INDIVIDUAL
IN A FREE SOCIETY.  THE PERENNIAL PROBLEM OF DEFINING THAT RELATIONSHIP
BECOMES ACUTE WHEN DISLOYALTY IS SCREENED BY IDEOLOGICAL PATTERNS AND
TECHNIQUES OF DISGUISE THAT MAKE IT DIFFICULT TO IDENTIFY.  DEMOCRATIC
GOVERNMENT IS NOT POWERLESS TO MEET THIS THREAT, BUT IT MUST DO SO
WITHOUT INFRINGING THE FREEDOMS THAT ARE THE ULTIMATE VALUES OF ALL
DEMOCRATIC LIVING.  IN THE ADOPTION OF SUCH MEANS AS IT BELIEVES
EFFECTIVE, THE LEGISLATURE IS THEREFORE CONFRONTED WITH THE PROBLEM OF
BALANCING ITS INTEREST IN NATIONAL SECURITY WITH THE OFTEN CONFLICTING
CONSTITUTIONAL RIGHTS OF THE INDIVIDUAL. 

IN A SERIES OF CASES COMING HERE IN RECENT YEARS, WE HAVE HAD
OCCASION TO CONSIDER LEGISLATION AIMED AT SAFEGUARDING THE PUBLIC
SERVICE FROM DISLOYALTY.  GARNER V. BOARD OF PUBLIC WORKS, 341 U.S. 716
(1951); ADLER V. BOARD OF EDUCATION, 342 U.S. 485 (1952); GERENDE V.
BOARD OF SUPERVISORS, 341 U.S. 56 (1951).  IT IS IN THE CONTEXT OF
THESE DECISIONS THAT WE DETERMINE THE VALIDITY OF THE OATH BEFORE US. 

GARNER INVOLVED A LOS ANGELES ORDINANCE REQUIRING ALL CITY EMPLOYEES
TO SWEAR THAT THEY DID NOT ADVOCATE THE OVERTHROW OF THE GOVERNMENT BY
UNLAWFUL MEANS OR BELONG TO ORGANIZATIONS WITH SUCH OBJECTIVES.  THE
ORDINANCE IMPLEMENTED AN EARLIER CHARTER AMENDMENT WHICH DISQUALIFIED
FROM MUNICIPAL EMPLOYMENT ALL PERSONS UNABLE TO TAKE SUCH AN OATH
TRUTHFULLY.  ONE OF THE ATTACKS MADE ON THE OATH IN THAT CASE WAS THAT
IT VIOLATED DUE PROCESS BECAUSE ITS NEGATION WAS NOT LIMITED TO
ORGANIZATIONS KNOWN BY THE EMPLOYEE TO BE WITHIN THE PROSCRIBED CLASS. 
THIS ARGUMENT WAS REJECTED BECAUSE WE FELT JUSTIFIED IN ASSUMING THAT
SCIENTER WAS IMPLICIT IN EACH CLAUSE OF THE OATH. 

ADLER ALSO INDICATED THE IMPORTANCE OF DETERMINING WHETHER A RULE OF
EXCLUSION BASED ON ASSOCIATION APPLIES TO INNOCENT AS WELL AS KNOWING
ACTIVITY.  NEW YORK HAD SOUGHT TO BAR FROM EMPLOYMENT IN THE PUBLIC
SCHOOLS PERSONS WHO ADVOCATE, OR BELONG TO ORGANIZATIONS WHICH
ADVOCATE, THE OVERTHROW OF THE GOVERNMENT BY UNLAWFUL MEANS.  THE
FEINBERG LAW DIRECTED THE NEW YORK BOARD OF REGENTS TO MAKE A LISTING,
AFTER NOTICE AND HEARING, OF ORGANIZATIONS OF THE TYPE DESCRIBED. 
UNDER SEC. 3022 OF THE STATUTE, THE REGENTS PROVIDED BY REGULATION THAT
MEMBERSHIP IN A LISTED ORGANIZATION SHOULD BE PRIMA FACIE EVIDENCE OF
DISQUALIFICATION FOR OFFICE IN THE NEW YORK PUBLIC SCHOOLS.  IN
UPHOLDING THIS LEGISLATION, WE EXPRESSLY NOTED THAT THE NEW YORK COURTS
HAD CONSTRUED THE STATUTE TO REQUIRE KNOWLEDGE OF ORGANIZATIONAL
PURPOSE BEFORE THE REGULATION COULD APPLY.  342 U.S., AT 494.  CF.
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 413 (1950). 

THE OATH IN GERENDE WAS REQUIRED OF CANDIDATES FOR PUBLIC OFFICE WHO
SOUGHT PLACES ON A MARYLAND BALLOT.  ON ORAL ARGUMENT IN THAT CASE, THE
MARYLAND ATTORNEY GENERAL ASSURED US THAT HE WOULD ADVISE THE PROPER
STATE AUTHORITIES TO ACCEPT, AS COMPLYING WITH THE STATUTE, AN
AFFIDAVIT STATING THAT THE AFFIANT WAS NOT ENGAGED IN AN ATTEMPT TO
OVERTHROW THE GOVERNMENT BY FORCE OR VIOLENCE OR KNOWINGLY A MEMBER OF
AN ORGANIZATION ENGAGED IN SUCH AN ATTEMPT.  BECAUSE WE READ AN EARLIER
MARYLAND COURT OF APPEALS' DECISION AS INTERPRETING THE STATUTE SO THAT
SUCH AN AFFIDAVIT WOULD SATISFY ITS REQUIREMENTS, WE AFFIRMED ON THE
BASIS OF THIS ASSURANCE. 

WE ASSUMED IN GARNER, THAT IF OUR INTERPRETATION OF THE OATH AS
CONTAINING AN IMPLICIT SCIENTER REQUIREMENT WAS CORRECT, LOS ANGELES
WOULD GIVE THE PETITIONERS WHO HAD REFUSED TO SIGN THE OATH AN
OPPORTUNITY TO TAKE IT AS INTERPRETED AND RESUME THEIR EMPLOYMENT.  BUT
HERE, WITH OUR DECISION IN GARNER BEFORE IT, THE OKLAHOMA SUPREME COURT
REFUSED TO EXTEND TO APPELLANTS AN OPPORTUNITY TO TAKE THE OATH.  IN
ADDITION, A PETITION FOR REHEARING WHICH URGED THAT FAILURE TO PERMIT
APPELLANTS TO TAKE THE OATH AS INTERPRETED DEPRIVED THEM OF DUE PROCESS
WAS DENIED.  THIS MUST BE VIEWED AS A HOLDING THAT KNOWLEDGE IS NOT A
FACTOR UNDER THE OKLAHOMA STATUTE.  WE ARE THUS BROUGHT TO THE QUESTION
TOUCHED ON IN GARNER, ADLER, AND GERENDE:  WHETHER THE DUE PROCESS
CLAUSE PERMITS A STATE, IN ATTEMPTING TO BAR DISLOYAL INDIVIDUALS FROM
ITS EMPLOY, TO EXCLUDE PERSONS SOLELY ON THE BASIS OF ORGANIZATIONAL
MEMBERSHIP, REGARDLESS OF THEIR KNOWLEDGE CONCERNING THE ORGANIZATIONS
TO WHICH THEY HAD BELONGED.  FOR, UNDER THE STATUTE BEFORE US, THE FACT
OF MEMBERSHIP ALONE DISQUALIFIES.  IF THE RULE BE EXPRESSED AS A
PRESUMPTION OF DISLOYALTY, IT IS A CONCLUSIVE ONE. 

BUT MEMBERSHIP MAY BE INNOCENT.  A STATE SERVANT MAY HAVE JOINED A
PROSCRIBED ORGANIZATION UNAWARE OF ITS ACTIVITIES AND PURPOSES.  IN
RECENT YEARS, MANY COMPLETELY LOYAL PERSONS HAVE SEVERED ORGANIZATIONAL
TIES AFTER LEARNING FOR THE FIRST TIME OF THE CHARACTER OF GROUPS TO
WHICH THEY HAD BELONGED.  "THEY HAD JOINED, BUT DID NOT KNOW WHAT IT
WAS, THEY WERE GOOD, FINE YOUNG MEN AND WOMEN, LOYAL AMERICANS, BUT
THEY HAD BEEN TRAPPED INTO IT - BECAUSE ONE OF THE GREAT WEAKNESSES OF
ALL AMERICANS, WHETHER ADULT OR YOUTH, IS TO JOIN SOMETHING."  (FN3)
AT THE TIME OF AFFILIATION, A GROUP ITSELF MAY BE INNOCENT, ONLY LATER
COMING UNDER THE INFLUENCE OF THOSE WHO WOULD TURN IT TOWARD
ILLEGITIMATE ENDS.  CONVERSELY, AN ORGANIZATION FORMERLY SUBVERSIVE AND
THEREFORE DESIGNATED AS SUCH MAY HAVE SUBSEQUENTLY FREED ITSELF FROM
THE INFLUENCES WHICH ORIGINALLY LED TO ITS LISTING. 

THERE CAN BE NO DISPUTE ABOUT THE CONSEQUENCES VISITED UPON A PERSON
EXCLUDED FROM PUBLIC EMPLOYMENT ON DISLOYALTY GROUNDS.  IN THE VIEW OF
THE COMMUNITY, THE STAIN IS A DEEP ONE; INDEED, IT HAS BECOME A BADGE
OF INFAMY.  ESPECIALLY IS THIS SO IN TIME OF COLD WAR AND HOT EMOTIONS
WHEN "EACH MAN BEGINS TO EYE HIS NEIGHBOR AS A POSSIBLE ENEMY."  (FN4)
YET UNDER THE OKLAHOMA ACT, THE FACT OF ASSOCIATION ALONE DETERMINES
DISLOYALTY AND DISQUALIFICATION; IT MATTERS NOT WHETHER ASSOCIATION
EXISTED INNOCENTLY OR KNOWINGLY.  TO THUS INHIBIT INDIVIDUAL FREEDOM OF
MOVEMENT IS TO STIFLE THE FLOW OF DEMOCRATIC EXPRESSION AND CONTROVERSY
AT ONE OF ITS CHIEF SOURCES.  WE HOLD THAT THE DISTINCTION OBSERVED
BETWEEN THE CASE AT BAR AND GARNER, ADLER AND GERENDE IS DECISIVE. 
INDISCRIMINATE CLASSIFICATION OF INNOCENT WITH KNOWING ACTIVITY MUST
FALL AS AN ASSERTION OF ARBITRARY POWER.  THE OATH OFFENDS DUE
PROCESS. 

BUT APPELLEE INSISTS THAT ADLER AND UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75 (1947), ARE CONTRA.  WE ARE REFERRED TO OUR
STATEMENT IN ADLER THAT PERSONS SEEKING EMPLOYMENT IN THE NEW YORK
PUBLIC SCHOOLS HAVE "NO RIGHT TO WORK FOR THE STATE IN THE SCHOOL
SYSTEM ON THEIR OWN TERMS.  UNITED PUBLIC WORKERS V. MITCHELL  ...  .
THEY MAY WORK FOR THE SCHOOL SYSTEM UPON THE REASONABLE TERMS LAID DOWN
BY THE PROPER AUTHORITIES OF NEW YORK."  342 U.S., AT 492.  TO DRAW
FROM THIS LANGUAGE THE FACILE GENERALIZATION THAT THERE IS NO
CONSTITUTIONALLY PROTECTED RIGHT TO PUBLIC EMPLOYMENT IS TO OBSCURE THE
ISSUE.  FOR, IN UNITED PUBLIC WORKERS, THOUGH WE HELD THAT THE FEDERAL
GOVERNMENT THROUGH THE HATCH ACT COULD PROPERLY BAR ITS EMPLOYEES FROM
CERTAIN TYPES OF POLITICAL ACTIVITY THOUGHT INIMICAL TO THE INTERESTS
OF THE CIVIL SERVICE, WE CAST THIS HOLDING INTO PERSPECTIVE BY
EMPHASIZING THAT CONGRESS COULD NOT "ENACT A REGULATION PROVIDING THAT
NO REPUBLICAN, JEW OR NEGRO SHALL BE APPOINTED TO FEDERAL OFFICE, OR
THAT NO FEDERAL EMPLOYEE SHALL ATTEND MASS OR TAKE ANY ACTIVE PART IN
MISSIONARY WORK."  330 U.S., AT 100.  SEE ALSO IN RE SUMMERS, 325 U.S.
561, 571 (1945).  WE NEED NOT PAUSE TO CONSIDER WHETHER AN ABSTRACT
RIGHT TO PUBLIC EMPLOYMENT EXISTS.  IT IS SUFFICIENT TO SAY THAT
CONSTITUTIONAL PROTECTION DOES EXTEND TO THE PUBLIC SERVANT WHOSE
EXCLUSION PURSUANT TO A STATUTE IS PATENTLY ARBITRARY OR
DISCRIMINATORY. 

BECAUSE OF THIS DISPOSITION, WE DO NOT PASS ON THE SERIOUS QUESTIONS
RAISED AS TO WHETHER THE ACT, IN PROSCRIBING THOSE "COMMUNIST FRONT OR
SUBVERSIVE ORGANIZATIONS" DESIGNATED AS SUCH ON LISTS OF THE ATTORNEY
GENERAL OF THE UNITED STATES, GAVE FAIR NOTICE TO THOSE AFFECTED, IN
VIEW OF THE FACT THAT THOSE LISTINGS HAVE NEVER INCLUDED A DESIGNATION
OF "COMMUNIST FRONTS," AND HAVE IN SOME CASES DESIGNATED ORGANIZATIONS
WITHOUT CLASSIFYING THEM.  NOR NEED WE CONSIDER THE SIGNIFICANCE OF THE
DIFFERING STANDARDS EMPLOYED IN THE PREPARATION OF THOSE LISTS AND
THEIR LIMITED EVIDENTIARY USE UNDER THE FEDERAL LOYALTY PROGRAM. 
REVERSED.    FN1  "I, - , DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AND THE
CONSTITUTION OF THE STATE OF OKLAHOMA AGAINST ALL ENEMIES, FOREIGN AND
DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE
CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF THE STATE OF
OKLAHOMA; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL
RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY
DISCHARGE THE DUTIES UPON WHICH I AM ABOUT TO ENTER. 

"AND I DO FURTHER SWEAR (OR AFFIRM) THAT I DO NOT ADVOCATE, NOR AM I
A MEMBER OF ANY PARTY OR ORGANIZATION, POLITICAL OR OTHERWISE, THAT NOW
ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF
THE STATE OF OKLAHOMA BY FORCE OR VIOLENCE OR OTHER UNLAWFUL MEANS;
THAT I AM NOT AFFILIATED DIRECTLY OR INDIRECTLY WITH THE COMMUNIST
PARTY, THE THIRD COMMUNIST INTERNATIONAL, WITH ANY FOREIGN POLITICAL
AGENCY, PARTY, ORGANIZATION OR GOVERNMENT, OR WITH ANY AGENCY, PARTY,
ORGANIZATION, ASSOCIATION, OR GROUP WHATEVER WHICH HAS BEEN OFFICIALLY
DETERMINED BY THE UNITED STATES ATTORNEY GENERAL OR OTHER AUTHORIZED
AGENCY OF THE UNITED STATES TO BE A COMMUNIST FRONT OR SUBVERSIVE
ORGANIZATION; NOR DO I ADVOCATE REVOLUTION, TEACH OR JUSTIFY A PROGRAM
OF SABOTAGE, FORCE OR VIOLENCE, SEDITION OR TREASON, AGAINST THE
GOVERNMENT OF THE UNITED STATES OR OF THIS STATE; NOR DO I ADVOCATE
DIRECTLY OR INDIRECTLY, TEACH OR JUSTIFY BY ANY MEANS WHATSOEVER, THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF THIS STATE, OR
CHANGE IN THE FORM OF GOVERNMENT THEREOF, BY FORCE OR ANY UNLAWFUL
MEANS; THAT I WILL TAKE UP ARMS IN THE DEFENSE OF THE UNITED STATES IN
TIME OF WAR, OR NATIONAL EMERGENCY, IF NECESSARY; THAT WITHIN THE FIVE
(5) YEARS IMMEDIATELY PRECEDING THE TAKING OF THIS OATH (OR
AFFIRMATION) I HAVE NOT BEEN A MEMBER OF THE COMMUNIST PARTY, THE THIRD
COMMUNIST INTERNATIONAL, OR OF ANY AGENCY, PARTY, ORGANIZATION,
ASSOCIATION, OR GROUP WHATEVER WHICH HAS BEEN OFFICIALLY DETERMINED BY
THE UNITED STATES ATTORNEY GENERAL OR OTHER AUTHORIZED PUBLIC AGENCY OF
THE UNITED STATES TO BE A COMMUNIST FRONT OR SUBVERSIVE ORGANIZATION,
OR OF ANY PARTY OR ORGANIZATION, POLITICAL OR OTHERWISE, THAT ADVOCATED
THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF THE STATE OF
OKLAHOMA BY FORCE OR VIOLENCE OR OTHER UNLAWFUL MEANS  ...  . 

"AND I DO FURTHER SWEAR (OR AFFIRM) THAT DURING SUCH TIME AS I AM
(HERE PUT NAME OF OFFICE, OR, IF AN EMPLOYEE,) INSERT 'AN EMPLOYEE OF'
FOLLOWED BY THE COMPLETE DESIGNATION OF THE EMPLOYING OFFICER, OFFICE,
AGENCY, AUTHORITY, COMMISSION, DEPARTMENT OR INSTITUTION. 

"I WILL NOT ADVOCATE AND THAT I WILL NOT BECOME A MEMBER OF ANY PARTY
OR ORGANIZATION, POLITICAL OR OTHERWISE, THAT ADVOCATES THE OVERTHROW
OF THE GOVERNMENT OF THE UNITED STATES OR OF THE STATE OF OKLAHOMA BY
FORCE OR VIOLENCE OR OTHER UNLAWFUL MEANS." 

FN2  THE STATE OFFICIALS NAMED AS DEFENDANTS IN UPDEGRAFF'S SUIT TOOK
THE POSITION IN THE STATE COURTS THAT THE STATUTE WAS
UNCONSTITUTIONAL.  FOLLOWING A POLICY OF THE OKLAHOMA ATTORNEY GENERAL
NOT TO APPEAL FROM ADVERSE DECISIONS OF THE STATE SUPREME COURT, THESE
DEFENDANTS ARE HERE ONLY BECAUSE THEY WERE MADE APPELLEES BY THE
APPELLANT-INTERVENORS.  THEY HAVE CHOSEN IN THEIR BRIEF MERELY TO
RESTATE, WITHOUT ARGUMENT, THEIR POSITION IN THE COURT BELOW. 

FN3  TESTIMONY OF J. EDGAR HOOVER, HEARINGS BEFORE HOUSE COMMITTEE ON
UN-AMERICAN ACTIVITIES ON H.R. 1884 AND H.R. 2122, 80TH CONG., 1ST
SESS. 46. 

FN4  ADDRESS BY JUDGE LEARNED HAND AT THE 86TH CONVOCATION OF THE
UNIVERSITY OF THE STATE OF NEW YORK, DELIVERED OCTOBER 24, 1952, AT
ALBANY, NEW YORK. 

MR. JUSTICE JACKSON, NOT HAVING HEARD THE ARGUMENT, TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN ALL THE COURT SAYS IN CONDEMNATION OF OKLAHOMA'S TEST
OATH.  I AGREE THAT THE STATE ACT PRESCRIBING THAT TEST OATH IS FATALLY
OFFENSIVE TO THE DUE PROCESS GUARANTEE OF THE UNITED STATES
CONSTITUTION. 

HISTORY INDICATES THAT INDIVIDUAL LIBERTY IS INTERMITTENTLY SUBJECTED
TO EXTRAORDINARY PERILS.  EVEN COUNTRIES DEDICATED TO GOVERNMENT BY THE
PEOPLE ARE NOT FREE FROM SUCH CYCLICAL DANGERS.  THE FIRST YEARS OF OUR
REPUBLIC MARKED SUCH A PERIOD.  ENFORCEMENT OF THE ALIEN AND SEDITION
LAWS BY ZEALOUS PATRIOTS WHO FEARED IDEAS MADE IT HIGHLY DANGEROUS FOR
PEOPLE TO THINK, SPEAK, OR WRITE CRITICALLY ABOUT GOVERNMENT, ITS
AGENTS, OR ITS POLICIES, EITHER FOREIGN OR DOMESTIC.  OUR
CONSTITUTIONAL LIBERTIES SURVIVED THE ORDEAL OF THIS REGRETTABLE PERIOD
BECAUSE THERE WERE INFLUENTIAL MEN AND POWERFUL ORGANIZED GROUPS BOLD
ENOUGH TO CHAMPION THE UNDILUTED RIGHT OF INDIVIDUALS TO PUBLISH AND
ARGUE FOR THEIR BELIEFS HOWEVER UNORTHODOX OR LOATHSOME.  TODAY
HOWEVER, FEW INDIVIDUALS AND ORGANIZATIONS OF POWER AND INFLUENCE ARGUE
THAT UNPOPULAR ADVOCACY HAS THIS SAME WHOLLY UNQUALIFIED IMMUNITY FROM
GOVERNMENTAL INTERFERENCE.  FOR THIS AND OTHER REASONS THE PRESENT
PERIOD OF FEAR SEEMS MORE OMINOUSLY DANGEROUS TO SPEECH AND PRESS THAN
WAS THAT OF THE ALIEN AND SEDITION LAWS.  SUPPRESSIVE LAWS AND
PRACTICES ARE THE FASHION.  THE OKLAHOMA OATH STATUTE IS BUT ONE
MANIFESTATION OF A NATIONAL NETWORK OF LAWS AIMED AT COERCING AND
CONTROLLING THE MINDS OF MEN.  TEST OATHS ARE NOTORIOUS TOOLS OF
TYRANNY.  WHEN USED TO SHACKLE THE MIND THEY ARE, OR AT LEAST THEY
SHOULD BE, UNSPEAKABLY ODIOUS TO A FREE PEOPLE.  TEST OATHS ARE MADE
STILL MORE DANGEROUS WHEN COMBINED WITH BILLS OF ATTAINDER WHICH LIKE
THIS OKLAHOMA STATUTE IMPOSE PAINS AND PENALTIES FOR PAST LAWFUL
ASSOCIATIONS AND UTTERANCES. 

GOVERNMENTS NEED AND HAVE AMPLE POWER TO PUNISH TREASONABLE ACTS. 
BUT IT DOES NOT FOLLOW THAT THEY MUST HAVE A FURTHER POWER TO PUNISH
THOUGHT AND SPEECH AS DISTINGUISHED FROM ACTS.  OUR OWN FREE SOCIETY
SHOULD NEVER FORGET THAT LAWS WHICH STIGMATIZE AND PENALIZE THOUGHT AND
SPEECH OF THE UNORTHODOX HAVE A WAY OF REACHING, ENSNARING AND
SILENCING MANY MORE PEOPLE THAN AT FIRST INTENDED.  WE MUST HAVE
FREEDOM OF SPEECH FOR ALL OR WE WILL IN THE LONG RUN HAVE IT FOR NONE
BUT THE CRINGING AND THE CRAVEN.  AND I CANNOT TOO OFTEN REPEAT MY
BELIEF THAT THE RIGHT TO SPEAK ON MATTERS OF PUBLIC CONCERN MUST BE
WHOLLY FREE OR EVENTUALLY BE WHOLLY LOST. 

IT SEEMS SELF-EVIDENT THAT ALL SPEECH CRITICIZING GOVERNMENT RULERS
AND CHALLENGING CURRENT BELIEFS MAY BE DANGEROUS TO THE STATUS QUO. 
WITH FULL KNOWLEDGE OF THIS DANGER THE FRAMERS RESTED OUR FIRST
AMENDMENT ON THE PREMISE THAT THE SLIGHTEST SUPPRESSION OF THOUGHT,
SPEECH, PRESS, OR PUBLIC ASSEMBLY IS STILL MORE DANGEROUS.  THIS MEANS
THAT INDIVIDUALS ARE GUARANTEED AN UNDILUTED AND UNEQUIVOCAL RIGHT TO
EXPRESS THEMSELVES ON QUESTIONS OF CURRENT PUBLIC INTEREST.  IT MEANS
THAT AMERICANS DISCUSS SUCH QUESTIONS AS OF RIGHT AND NOT ON SUFFERANCE
OF LEGISLATURES, COURTS OR ANY OTHER GOVERNMENTAL AGENCIES.  IT MEANS
THAT COURTS ARE WITHOUT POWER TO APPRAISE AND PENALIZE UTTERANCES UPON
THEIR NOTION THAT THESE UTTERANCES ARE DANGEROUS.  IN MY VIEW THIS
UNCOMPROMISING INTERPRETATION OF THE BILL OF RIGHTS IS THE ONE THAT
MUST PREVAIL IF ITS FREEDOMS ARE TO BE SAVED.  TYRANNICAL TOTALITARIAN
GOVERNMENTS CANNOT SAFELY ALLOW THEIR PEOPLE TO SPEAK WITH COMPLETE
FREEDOM.  I BELIEVE WITH THE FRAMERS THAT OUR FREE GOVERNMENT CAN. 

MR. JUSTICE DOUGLAS CONCURS IN THIS OPINION. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

THE TIMES BEING WHAT THEY ARE, IT IS APPROPRIATE TO ADD A WORD BY WAY
OF EMPHASIS TO THE COURT'S OPINION, WHICH I JOIN. 

THE CASE CONCERNS THE POWER OF A STATE TO EXACT FROM TEACHERS IN ONE
OF ITS COLLEGES AN OATH THAT THEY ARE NOT, AND FOR THE FIVE YEARS
IMMEDIATELY PRECEDING THE TAKING OF THE OATH HAVE NOT BEEN, MEMBERS OF
ANY ORGANIZATION LISTED BY THE ATTORNEY GENERAL OF THE UNITED STATES,
PRIOR TO THE PASSAGE OF THE STATUTE, AS "SUBVERSIVE" OR "COMMUNIST
FRONT."  SINCE THE AFFILIATION WHICH MUST THUS BE FORSWORN MAY WELL
HAVE BEEN FOR REASONS OR FOR PURPOSES AS INNOCENT AS MEMBERSHIP IN A
CLUB OF ONE OF THE ESTABLISHED POLITICAL PARTIES, TO REQUIRE SUCH AN
OATH, ON PAIN OF A TEACHER'S LOSS OF HIS POSITION IN CASE OF REFUSAL TO
TAKE THE OATH, PENALIZES A TEACHER FOR EXERCISING A RIGHT OF
ASSOCIATION PECULIARLY CHARACTERISTIC OF OUR PEOPLE.  SEE ARTHUR M.
SCHLESINGER, SR., BIOGRAPHY OF A NATION OF JOINERS, 50 AM. HIST. REV. 1
(1944), REPRINTED IN SCHLESINGER, PATHS TO THE PRESENT, 23.  SUCH
JOINING IS AN EXERCISE OF THE RIGHTS OF FREE SPEECH AND FREE INQUIRY. 
BY LIMITING THE POWER OF THE STATES TO INTERFERE WITH FREEDOM OF SPEECH
AND FREEDOM OF INQUIRY AND FREEDOM OF ASSOCIATION, THE FOURTEENTH
AMENDMENT PROTECTS ALL PERSONS, NO MATTER WHAT THEIR CALLING.  BUT, IN
VIEW OF THE NATURE OF THE TEACHER'S RELATION TO THE EFFECTIVE EXERCISE
OF THE RIGHTS WHICH ARE SAFEGUARDED BY THE BILL OF RIGHTS AND BY THE
FOURTEENTH AMENDMENT, INHIBITION OF FREEDOM OF THOUGHT, AND OF ACTION
UPON THOUGHT, IN THE CASE OF TEACHERS BRINGS THE SAFEGUARDS OF THOSE
AMENDMENTS VIVIDLY INTO OPERATION.  SUCH UNWARRANTED INHIBITION UPON
THE FREE SPIRIT OF TEACHERS AFFECTS NOT ONLY THOSE WHO, LIKE THE
APPELLANTS, ARE IMMEDIATELY BEFORE THE COURT.  IT HAS AN UNMISTAKABLE
TENDENCY TO CHILL THAT FREE PLAY OF THE SPIRIT WHICH ALL TEACHERS OUGHT
ESPECIALLY TO CULTIVATE AND PRACTICE; IT MAKES FOR CAUTION AND TIMIDITY
IN THEIR ASSOCIATIONS BY POTENTIAL TEACHERS. 

THE CONSTITUTION OF THE UNITED STATES DOES NOT RENDER THE UNITED
STATES OR THE STATES IMPOTENT TO GUARD THEIR GOVERNMENTS AGAINST
DESTRUCTION BY ENEMIES FROM WITHIN.  IT DOES NOT PRECLUDE MEASURES OF
SELF-PROTECTION AGAINST ANTICIPATED OVERT ACTS OF VIOLENCE.  SOLID
THREATS TO OUR KIND OF GOVERNMENT - MANIFESTATIONS OF PURPOSES THAT
REJECT ARGUMENT AND THE FREE BALLOT AS THE MEANS FOR BRINGING ABOUT
CHANGES AND PROMOTING PROGRESS - MAY BE MET BY PREVENTIVE MEASURES
BEFORE SUCH THREATS REACH FRUITION.  HOWEVER, IN CONSIDERING THE
CONSTITUTIONALITY OF LEGISLATION LIKE THE STATUTE BEFORE US IT IS
NECESSARY TO KEEP STEADFASTLY IN MIND WHAT IT IS THAT IS TO BE
SECURED.  ONLY THUS WILL IT BE EVIDENT WHY THE COURT HAS FOUND THAT THE
OKLAHOMA LAW VIOLATES THOSE FUNDAMENTAL PRINCIPLES OF LIBERTY "WHICH
LIE AT THE BASE OF ALL OUR CIVIL AND POLITICAL INSTITUTIONS" AND AS
SUCH ARE IMBEDDED IN THE DUE PROCESS OF LAW WHICH NO STATE MAY OFFEND. 
HEBERT V. LOUISIANA, 272 U.S. 312, 316. 

THAT OUR DEMOCRACY ULTIMATELY RESTS ON PUBLIC OPINION IS A PLATITUDE
OF SPEECH BUT NOT A COMMONPLACE IN ACTION.  PUBLIC OPINION IS THE
ULTIMATE RELIANCE OF OUR SOCIETY ONLY IF IT BE DISCIPLINED AND
RESPONSIBLE.  IT CAN BE DISCIPLINED AND RESPONSIBLE ONLY IF HABITS OF
OPEN-MINDEDNESS AND OF CRITICAL INQUIRY ARE ACQUIRED IN THE FORMATIVE
YEARS OF OUR CITIZENS.  THE PROCESS OF EDUCATION HAS NATURALLY ENOUGH
BEEN THE BASIS OF HOPE FOR THE PERDURANCE OF OUR DEMOCRACY ON THE PART
OF ALL OUR GREAT LEADERS, FROM THOMAS JEFFERSON ONWARDS. 

TO REGARD TEACHERS - IN OUR ENTIRE EDUCATIONAL SYSTEM, FROM THE
PRIMARY GRADES TO THE UNIVERSITY - AS THE PRIESTS OF OUR DEMOCRACY IS
THEREFORE NOT TO INDULGE IN HYPERBOLE.  IT IS THE SPECIAL TASK OF
TEACHERS TO FOSTER THOSE HABITS OF OPEN-MINDEDNESS AND CRITICAL INQUIRY
WHICH ALONE MAKE FOR RESPONSIBLE CITIZENS, WHO, IN TURN, MAKE POSSIBLE
AN ENLIGHTENED AND EFFECTIVE PUBLIC OPINION.  TEACHERS MUST FULFILL
THEIR FUNCTION BY PRECEPT AND PRACTICE, BY THE VERY ATMOSPHERE WHICH
THEY GENERATE; THEY MUST BE EXEMPLARS OF OPEN-MINDEDNESS AND FREE
INQUIRY.  THEY CANNOT CARRY OUT THEIR NOBLE TASK IF THE CONDITIONS FOR
THE PRACTICE OF A RESPONSIBLE AND CRITICAL MIND ARE DENIED TO THEM. 
THEY MUST HAVE THE FREEDOM OF RESPONSIBLE INQUIRY, BY THOUGHT AND
ACTION, INTO THE MEANING OF SOCIAL AND ECONOMIC IDEAS, INTO THE
CHECKERED HISTORY OF SOCIAL AND ECONOMIC DOGMA.  THEY MUST BE FREE TO
SIFT EVANESCENT DOCTRINE, QUALIFIED BY TIME AND CIRCUMSTANCE, FROM THAT
RESTLESS, ENDURING PROCESS OF EXTENDING THE BOUNDS OF UNDERSTANDING AND
WISDOM, TO ASSURE WHICH THE FREEDOMS OF THOUGHT, OF SPEECH, OF INQUIRY,
OF WORSHIP ARE GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES
AGAINST INFRACTION BY NATIONAL OR STATE GOVERNMENT. 

THE FUNCTIONS OF EDUCATIONAL INSTITUTIONS IN OUR NATIONAL LIFE AND
THE CONDITIONS UNDER WHICH ALONE THEY CAN ADEQUATELY PERFORM THEM ARE
AT THE BASIS OF THESE LIMITATIONS UPON STATE AND NATIONAL POWER.  THESE
FUNCTIONS AND THE ESSENTIAL CONDITIONS FOR THEIR EFFECTIVE DISCHARGE
HAVE BEEN WELL DESCRIBED BY A LEADING EDUCATOR: 

"NOW, A UNIVERSITY IS A PLACE THAT IS ESTABLISHED AND WILL FUNCTION
FOR THE BENEFIT OF SOCIETY, PROVIDED IT IS A CENTER OF INDEPENDENT
THOUGHT.  IT IS A CENTER OF INDEPENDENT THOUGHT AND CRITICISM THAT IS
CREATED IN THE INTEREST OF THE PROGRESS OF SOCIETY, AND THE ONE REASON
THAT WE KNOW THAT EVERY TOTALITARIAN GOVERNMENT MUST FAIL IS THAT NO
TOTALITARIAN GOVERNMENT IS PREPARED TO FACE THE CONSEQUENCES OF
CREATING FREE UNIVERSITIES. 

"IT IS IMPORTANT FOR THIS PURPOSE TO ATTRACT INTO THE INSTITUTION MEN
OF THE GREATEST CAPACITY, AND TO ENCOURAGE THEM TO EXERCISE THEIR
INDEPENDENT JUDGMENT. 

"EDUCATION IS A KIND OF CONTINUING DIALOGUE, AND A DIALOGUE ASSUMES,
IN THE NATURE OF THE CASE, DIFFERENT POINTS OF VIEW. 

"THE CIVILIZATION WHICH I WORK AND WHICH I AM SURE, EVERY AMERICAN IS
WORKING TOWARD, COULD BE CALLED A CIVILIZATION OF THE DIALOGUE, WHERE
INSTEAD OF SHOOTING ONE ANOTHER WHEN YOU DIFFER, YOU REASON THINGS OUT
TOGETHER.    "IN THIS DIALOGUE, THEN, YOU CANNOT ASSUME THAT YOU ARE
GOING TO HAVE EVERYBODY THINKING THE SAME WAY OR FEELING THE SAME WAY. 
IT WOULD BE UNPROGRESSIVE IF THAT HAPPENED.  THE HOPE OF EVENTUAL
DEVELOPMENT WOULD BE GONE.  MORE THAN THAT, OF COURSE, IT WOULD BE VERY
BORING. 

"A UNIVERSITY, THEN, IS A KIND OF CONTINUING SOCRATIC CONVERSATION ON
THE HIGHEST LEVEL FOR THE VERY BEST PEOPLE YOU CAN THINK OF, YOU CAN
BRING TOGETHER, ABOUT THE MOST IMPORTANT QUESTIONS, AND THE THING THAT
YOU MUST DO TO THE UTTERMOST POSSIBLE LIMITS IS TO GUARANTEE THOSE MEN
THE FREEDOM TO THINK AND TO EXPRESS THEMSELVES. 

"NOW, THE LIMITS ON THIS FREEDOM, THE LIMITS ON THIS FREEDOM, CANNOT
BE MERELY PREJUDICE, BECAUSE ALTHOUGH OUR PREJUDICES MIGHT BE PERFECTLY
SATISFACTORY, THE PREJUDICES OF OUR SUCCESSORS OR OF THOSE WHO ARE IN A
POSITION TO BRING PRESSURE TO BEAR ON THE INSTITUTION, MIGHT BE
SUBVERSIVE IN THE REAL SENSE, SUBVERTING THE AMERICAN DOCTRINE OF FREE
THOUGHT AND FREE SPEECH."  TESTIMONY OF ROBERT M. HUTCHINS, ASSOCIATE
DIRECTOR OF THE FORD FOUNDATION, NOVEMBER 25, 1952, IN HEARINGS BEFORE
THE HOUSE SELECT COMMITTEE TO INVESTIGATE TAX-EXEMPT FOUNDATIONS AND
COMPARABLE ORGANIZATIONS, PURSUANT TO H. RES. 561, 82D CONG., 2D SESS.
..END :













SCHWARTZ V. TEXAS 344 U.S. 199 


NO. 41.  ARGUED NOVEMBER 12, 1952 - DECIDED DECEMBER 15, 1952 - TEX. CR.
R. - 246 S.W.2D 174, AFFIRMED. 


PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT ANY
COMMUNICATION AND DIVULGE OR PUBLISH" THE CONTENTS THEREOF TO ANY
PERSON, AND WHICH HAS BEEN CONSTRUED TO RENDER SUCH INTERCEPTED
COMMUNICATIONS INADMISSIBLE AS EVIDENCE IN FEDERAL COURTS, DOES NOT
EXCLUDE SUCH INTERCEPTED COMMUNICATIONS FROM EVIDENCE IN CRIMINAL
PROCEEDINGS IN STATE COURTS.  PP. 199-204. 

SCHWARTZ V. TEXAS 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PETITIONER WAS CONVICTED IN A TEXAS STATE COURT AS AN ACCOMPLICE TO
THE CRIME OF ROBBERY, UPON EVIDENCE OBTAINED BY WIRE TAPPING.  THE
COURT OF CRIMINAL APPEALS OF TEXAS UPHELD THE CONVICTION.  - TEX. CR.
R. - , 246 S.W.2D 174, REHEARING DENIED, - TEX. CR. R. - , 246 S.W.2D
179.  THIS COURT GRANTED CERTIORARI.  343 U.S. 975.  AFFIRMED, P. 204. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, SCHWARTZ, A PAWNBROKER, ENTERED INTO A CONSPIRACY
WITH JARRETT AND BENNETT WHEREBY THE LATTER TWO WERE TO ROB PLACES TO
BE DESIGNATED BY SCHWARTZ AND BRING THE LOOT TO HIM TO DISPOSE OF AND
DIVIDE THE PROCEEDS WITH THEM.  PURSUANT TO THE PLAN, JARRETT AND
BENNETT ROBBED A WOMAN IN DALLAS, TEXAS, OF HER VALUABLE JEWELS AND
BROUGHT THE LOOT TO THE PETITIONER.  AFTER THE PETITIONER REPEATEDLY
DELAYED SETTLEMENT WITH THE ROBBERS, THE THIEVES FINALLY FELL OUT,
WHICH PROVED VERY HELPFUL TO THE POLICE.  THE PETITIONER TIPPED OFF THE
POLICE WHERE THEY COULD FIND JARRETT.  AFTER JARRETT HAD BEEN IN JAIL
ABOUT TWO WEEKS, HE CONSENTED TO TELEPHONE THE PETITIONER FROM THE
SHERIFF'S OFFICE.  WITH THE KNOWLEDGE AND CONSENT OF JARRETT, A
PROFESSIONAL OPERATOR SET UP AN INDUCTION COIL CONNECTED TO A RECORDER
AMPLIFIER WHICH ENABLED THE OPERATOR TO OVERHEAR AND SIMULTANEOUSLY TO
RECORD THE TELEPHONE CONVERSATIONS BETWEEN JARRETT AND THE PETITIONER. 
THESE RECORDS WERE USED AS EVIDENCE BEFORE THE JURY THAT TRIED AND
CONVICTED THE PETITIONER AS AN ACCOMPLICE TO THE CRIME OF ROBBERY.  THE
RECORDS, ADMITTED ONLY AFTER JARRETT AND THE PETITIONER HAD TESTIFIED,
CORROBORATED JARRETT AND DISCREDITED THE PETITIONER.  THE COURT OF
CRIMINAL APPEALS OF TEXAS UPHELD THE CONVICTION, - TEX. CR. R. - , 246
S.W.2D 174, REHEARING DENIED, - TEX. CR. R. - , 246 S.W.2D 179.  WE
GRANTED CERTIORARI, 343 U.S. 975. 

PETITIONER CONTENDS THAT SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT
(FN1) MAKES INADMISSIBLE IN EVIDENCE THE RECORDS OF INTERCEPTED
TELEPHONE CONVERSATIONS WITHOUT THE PETITIONER'S CONSENT.  THE
PERTINENT PROVISION OF THE STATUTE READS AS FOLLOWS: 

"  ...  NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT
ANY COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE, CONTENTS,
SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED
COMMUNICATION TO ANY PERSON  ...  ." 

605. 

WE ARE DEALING HERE ONLY WITH THE APPLICATION OF A FEDERAL STATUTE TO
STATE PROCEEDINGS.  WITHOUT DECIDING, BUT ASSUMING FOR THE PURPOSES OF
THIS CASE, THAT THE TELEPHONE COMMUNICATIONS WERE INTERCEPTED WITHOUT
BEING AUTHORIZED BY THE SENDER WITHIN THE MEANING OF THE ACT, THE
QUESTION WE HAVE IS WHETHER THESE COMMUNICATIONS ARE BARRED BY THE
FEDERAL STATUTE, SEC. 605, FROM USE AS EVIDENCE IN A CRIMINAL
PROCEEDING IN A STATE COURT. 

WE THINK NOT.  ALTHOUGH THE STATUTE CONTAINS NO REFERENCE TO THE
ADMISSIBILITY OF EVIDENCE OBTAINED BY WIRE TAPPING, IT HAS BEEN
CONSTRUED TO RENDER INADMISSIBLE IN A COURT OF THE UNITED STATES
COMMUNICATIONS INTERCEPTED AND SOUGHT TO BE DIVULGED IN VIOLATION
THEREOF, NARDONE V. UNITED STATES, 302 U.S. 379, AND THIS IS TRUE EVEN
THOUGH THE COMMUNICATIONS WERE INTRASTATE TELEPHONE CALLS.  WEISS V.
UNITED STATES, 308 U.S. 321, 329.  ALTHOUGH THE INTERCEPTED CALLS WOULD
BE INADMISSIBLE IN A FEDERAL COURT, IT DOES NOT FOLLOW THAT SUCH
EVIDENCE IS INADMISSIBLE IN A STATE COURT.  INDEED, EVIDENCE OBTAINED
BY A STATE OFFICER BY MEANS WHICH WOULD CONSTITUTE AN UNLAWFUL SEARCH
AND SEIZURE UNDER THE FOURTH AMENDMENT TO THE FEDERAL CONSTITUTION IS
NONETHELESS ADMISSIBLE IN A STATE COURT, WOLF V. COLORADO, 338 U.S. 25,
WHILE SUCH EVIDENCE, IF OBTAINED BY A FEDERAL OFFICER, WOULD BE CLEARLY
INADMISSIBLE IN A FEDERAL COURT.  WEEKS V. UNITED STATES, 232 U.S.
383.  THE PROBLEM UNDER SEC. 605 IS SOMEWHAT DIFFERENT BECAUSE THE
INTRODUCTION OF THE INTERCEPTED COMMUNICATIONS WOULD ITSELF BE A
VIOLATION OF THE STATUTE, BUT IN THE ABSENCE OF AN EXPRESSION BY
CONGRESS, THIS IS SIMPLY AN ADDITIONAL FACTOR FOR A STATE TO CONSIDER
IN FORMULATING A RULE OF EVIDENCE FOR USE IN ITS OWN COURTS. 
ENFORCEMENT OF THE STATUTORY PROHIBITION IN SEC. 605 CAN BE ACHIEVED
UNDER THE PENAL PROVISIONS OF SEC. 501. 

THIS QUESTION HAS BEEN MANY TIMES BEFORE THE STATE COURTS, AND THEY
HAVE UNIFORMLY HELD THAT SEC. 605 DOES NOT APPLY TO EXCLUDE SUCH
COMMUNICATIONS FROM EVIDENCE IN STATE COURTS.  LEON V. STATE, 180 MD.
279, 23 A.2D 706; PEOPLE V. STEMMER, 298 N.Y. 728, 83 N.E.2D 141;
HARLEM CHECK CASHING CORP. V. BELL, 296 N.Y. 15, 68 N.E.2D 854; PEOPLE
V. CHANNELL, 107 CAL. APP. 2D 192, 236 P.2D 654.  WHILE THESE CASES ARE
NOT CONTROLLING HERE, THEY ARE ENTITLED TO CONSIDERATION BECAUSE OF THE
HIGH STANDING OF THE COURTS FROM WHICH THEY COME. 

TEXAS ITSELF HAS GIVEN CONSIDERATION TO THE ADMISSIBILITY OF EVIDENCE
OBTAINED IN VIOLATION OF CONSTITUTIONAL OR STATUTORY LAW AND HAS
CAREFULLY LEGISLATED CONCERNING IT.  IN 1925 TEXAS ENACTED A STATUTE
PROVIDING THAT EVIDENCE OBTAINED IN VIOLATION OF THE CONSTITUTION OR
LAWS OF TEXAS OR OF THE UNITED STATES SHOULD NOT BE ADMISSIBLE AGAINST
THE ACCUSED IN A CRIMINAL CASE.  (FN2)  IN 1929 THIS ARTICLE 727A OF
THE TEXAS CODE OF CRIMINAL PROCEDURE WAS AMENDED TO PROVIDE THAT
EVIDENCE OBTAINED IN VIOLATION OF THE CONSTITUTION OR LAWS OF TEXAS OR
THE CONSTITUTION OF THE UNITED STATES SHOULD BE INADMISSIBLE IN
EVIDENCE, (FN3) THUS ELIMINATING FROM THE COVERAGE OF THE STATUTE
EVIDENCE OBTAINED IN VIOLATION OF THE LAWS OF THE UNITED STATES. 

WHERE A STATE HAS CAREFULLY LEGISLATED SO AS NOT TO RENDER
INADMISSIBLE EVIDENCE OBTAINED AND SOUGHT TO BE DIVULGED IN VIOLATION
OF THE LAWS OF THE UNITED STATES, THIS COURT WILL NOT EXTEND BY
IMPLICATION THE STATUTE OF THE UNITED STATES SO AS TO INVALIDATE THE
SPECIFIC LANGUAGE OF THE STATE STATUTE.  IF CONGRESS IS AUTHORIZED TO
ACT IN A FIELD, IT SHOULD MANIFEST ITS INTENTION CLEARLY.  IT WILL NOT
BE PRESUMED THAT A FEDERAL STATUTE WAS INTENDED TO SUPERSEDE THE
EXERCISE OF THE POWER OF THE STATE UNLESS THERE IS A CLEAR
MANIFESTATION OF INTENTION TO DO SO.  THE EXERCISE OF FEDERAL SUPREMACY
IS NOT LIGHTLY TO BE PRESUMED. 

"THE PRINCIPLE THUS APPLICABLE HAS BEEN FREQUENTLY STATED.  IT IS
THAT THE CONGRESS MAY CIRCUMSCRIBE ITS REGULATION AND OCCUPY A LIMITED
FIELD, AND THAT THE INTENTION TO SUPERSEDE THE EXERCISE BY THE STATE OF
ITS AUTHORITY AS TO MATTERS NOT COVERED BY THE FEDERAL LEGISLATION IS
NOT TO BE IMPLIED UNLESS THE ACT OF CONGRESS FAIRLY INTERPRETED IS IN
CONFLICT WITH THE LAW OF THE STATE."  ATCHISON, T.&S.F.R. CO. V.
RAILROAD COMMISSION, 283 U.S. 380, 392-393.  SEE SAVAGE V. JONES, 225
U.S. 501, 533. 

"IT SHOULD NEVER BE HELD THAT CONGRESS INTENDS TO SUPERSEDE OR BY ITS
LEGISLATION SUSPEND THE EXERCISE OF THE POLICE POWERS OF THE STATES,
EVEN WHEN IT MAY DO SO, UNLESS ITS PURPOSE TO EFFECT THAT RESULT IS
CLEARLY MANIFESTED."  REID V. COLORADO, 187 U.S. 137, 148. 

IT IS DUE CONSIDERATION BUT NOT CONTROLLING THAT TEXAS HAS LEGISLATED
IN THIS FIELD.  OUR DECISION WOULD BE THE SAME IF THE TEXAS COURTS HAD
PRONOUNCED THIS RULE OF EVIDENCE. 

WE HOLD THAT SEC. 605 APPLIES ONLY TO THE EXCLUSION IN FEDERAL COURT
PROCEEDINGS OF EVIDENCE OBTAINED AND SOUGHT TO BE DIVULGED IN VIOLATION
THEREOF; IT DOES NOT EXCLUDE SUCH EVIDENCE IN STATE COURT PROCEEDINGS. 
SINCE WE DO NOT BELIEVE THAT CONGRESS INTENDED TO IMPOSE A RULE OF
EVIDENCE ON THE STATE COURTS, WE DO NOT DECIDE WHETHER IT HAS THE POWER
TO DO SO. 

SINCE THE STATUTE IS NOT APPLICABLE TO STATE PROCEEDINGS, WE DO NOT
HAVE TO DECIDE THE QUESTIONS OF WHAT AMOUNTS TO "INTERCEPTION," OR
WHETHER IF THERE WAS INTERCEPTION, THE SENDER HAD AUTHORIZED IT.  THESE
QUESTIONS CAN ARISE ONLY IN A FEDERAL COURT PROCEEDING. 

THE JUDGMENT IS AFFIRMED. 

FN1  48 STAT. 1064, 47 U.S.C. SEC. 151 ET SEQ. 

FN2  TEX. LAWS 1925, C. 49, SEC. 1. 

FN3  VERNON'S TEX. STAT., 1948, CODE CRIM. PROC., ART. 727A. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT. 

IF THE ONLY QUESTION INVOLVED IN THIS CASE WERE THE APPLICABILITY TO
PROSECUTIONS IN STATE COURTS, IN SITUATIONS LIKE THE PRESENT, OF SEC.
605 OF THE FEDERAL COMMUNICATIONS ACT, 47 U.S.C. SEC. 605, AS CONSTRUED
IN THE TWO NARDONE CASES, 302 U.S. 379; 308 U.S. 338, I WOULD JOIN IN
THE OPINION OF THE COURT.  I AGREE WITH THE VIEWS ON THIS SUBJECT
EXPRESSED BY MR. JUSTICE MINTON. 

THE MATTER IS COMPLICATED, HOWEVER, BY A TEXAS STATUTE (ART. 727A,
VERNON'S CODE OF CRIMINAL PROCEDURE (1948)) WHICH RENDERS INADMISSIBLE
IN CRIMINAL TRIALS EVIDENCE OBTAINED IN VIOLATION OF ANY PROVISION "OF
THE CONSTITUTION OF THE UNITED STATES."  IF THIS LIMITATION MEANS,
ACCORDING TO TEXAS LAW, THAT THE STATE COURT IS TO CONSTRUE WHAT IS OR
IS NOT A VIOLATION UNDER THE UNITED STATES CONSTITUTION, IT DOES NOT
RAISE A FEDERAL QUESTION.  BUT IF THE TEXAS LEGISLATION MEANS THAT THE
TEXAS COURTS ARE BOUND BY WHAT THIS COURT DEEMS A VIOLATION OF THE
UNITED STATES CONSTITUTION, THE PROBLEM IS, OR MIGHT BE, DIFFERENT. 
SEE STATE TAX COMMISSION V. VAN COTT, 306 U.S. 511.  WHILE, ON THE
LATTER ASSUMPTION, THE CIRCUMSTANCES ATTENDING THE EVIDENCE THAT WAS
ADMITTED HERE WOULD, IN MY VIEW, RENDER IT INADMISSIBLE IN A FEDERAL
PROSECUTION, SEE MY DISSENT IN ON LEE V. UNITED STATES, 343 U.S. 747,
758, THE DECISION OF THIS COURT WAS TO THE CONTRARY.  THEREFORE THE
TEXAS COURT WAS IN DUTY BOUND TO FOLLOW THAT DECISION AND TO REACH THE
RESULT IT REACHED EVEN IF IT FELT CONSTRAINED, AS APPARENTLY IT DID, TO
BE GOVERNED BY THE VIEWS OF THIS COURT AS TO WHAT CONSTITUTES A
VIOLATION OF THE UNITED STATES CONSTITUTION.  I CANNOT SAY THAT THE
TEXAS COURT SHOULD HAVE FOLLOWED MY MINORITY VIEWS, TO WHICH I ADHERE,
ON THIS CONSTITUTIONAL QUESTION, AND DISREGARDED THE COURT'S
AUTHORITY. 

MR. JUSTICE DOUGLAS, DISSENTING. 

SINCE, IN MY VIEW (AS INDICATED IN MY DISSENT IN ON LEE V. UNITED
STATES, 343 U.S. 747, 762), THIS WIRE TAPPING WAS A SEARCH THAT
VIOLATED THE FOURTH AMENDMENT, THE EVIDENCE OBTAINED BY IT SHOULD HAVE
BEEN EXCLUDED.  THE QUESTION WHETHER THE FOURTH AMENDMENT IS APPLICABLE
TO THE STATES (SEE WOLF V. COLORADO, 338 U.S. 25) PROBABLY NEED NOT BE
REACHED, BECAUSE A TEXAS STATUTE HAS EXCLUDED EVIDENCE OBTAINED IN
VIOLATION OF THE FEDERAL CONSTITUTION.  THEREFORE I WOULD REVERSE THE
JUDGMENT.  IT IS TRUE THAT THE PRIOR DECISIONS OF THE COURT POINT TO
AFFIRMANCE.  BUT THOSE DECISIONS REFLECT CONSTRUCTIONS OF THE
CONSTITUTION WHICH I THINK ARE ERRONEOUS.  THEY IMPINGE SEVERELY ON THE
LIBERTY OF THE INDIVIDUAL AND GIVE THE POLICE THE RIGHT TO INTRUDE INTO
THE PRIVACY OF ANY LIFE.  THE PRACTICES THEY SANCTION HAVE TODAY
ACQUIRED A MOMENTUM THAT IS SO OMINOUS I CANNOT REMAIN SILENT AND BOW
TO THE PRECEDENTS THAT SANCTION THEM. 
..END :


















DIXON V. DUFFY 344 U.S. 143 


NO. 4.  ARGUED OCTOBER 16, 1951 - CONTINUED NOVEMBER 5, 1951 - FURTHER
CONTINUED MAY 12, 1952 - DECIDED DECEMBER 8, 1952 - JUDGMENT VACATED
AND CAUSE REMANDED. 


IN A STATE COURT, PETITIONER WAS CONVICTED OF A CRIME AND SENTENCED TO
IMPRISONMENT.  HE DID NOT APPEAL, BUT PETITIONED THE STATE SUPREME
COURT FOR HABEAS CORPUS, WHICH WAS DENIED WITHOUT OPINION.  THIS COURT
GRANTED CERTIORARI BECAUSE OF A SERIOUS CLAIM THAT PETITIONER HAD BEEN
DEPRIVED OF HIS RIGHTS UNDER THE FEDERAL CONSTITUTION.  AT THE BAR OF
THIS COURT, THE STATE ATTORNEY GENERAL ARGUED THAT THE STATE SUPREME
COURT'S JUDGMENT RESTED ON AN ADEQUATE STATE GROUND.  AFTER TWICE
CONTINUING THE CAUSE ON ITS DOCKET TO ENABLE PETITIONER'S COUNSEL TO
OBTAIN FROM THE STATE SUPREME COURT A DETERMINATION AS TO WHETHER ITS
JUDGMENT WAS INTENDED TO REST UPON AN ADEQUATE STATE GROUND, THIS COURT
IS NOW INFORMED THAT THE STATE SUPREME COURT CONSIDERS THAT IT HAS NO
JURISDICTION TO RENDER SUCH A DETERMINATION.  HELD: 

1.  TO THE END THAT THE DOUBT AS TO THE JURISDICTION OF THIS COURT TO
REVIEW THE JUDGMENT OF THE STATE SUPREME COURT MAY BE RESOLVED, THAT
JUDGMENT IS VACATED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS. 
PP. 144-146. 

2.  A NEW JUDGMENT MAY BE ENTERED, AND PETITIONER MAY ALSO BE
INFORMED BY AN OFFICIAL DETERMINATION FROM THE STATE SUPREME COURT
WHETHER OR NOT THAT JUDGMENT RESTS ON AN ADEQUATE STATE GROUND.  PP.
144-146. 

DIXON V. DUFFY, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS WAS DENIED BY
THE SUPREME COURT OF CALIFORNIA WITHOUT OPINION.  THIS COURT GRANTED
CERTIORARI.  341 U.S. 938.  JUDGMENT VACATED AND CAUSE REMANDED, P.
146. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE ORIGINATED ON OCTOBER 21, 1950, WHEN PETITIONER, A PRISONER
IN SAN QUENTIN, FILED AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN THE
SUPREME COURT OF CALIFORNIA.  THAT COURT, SUMMARILY, BUT WITH TWO
DISSENTS, DENIED THE APPLICATION.  TO REVIEW THIS DECISION, PETITIONER
APPLIED TO THIS COURT FOR CERTIORARI.  THE COURT GRANTED THE PETITION,
341 U.S. 938, AND THEREAFTER APPOINTED COUNSEL TO REPRESENT THE
PETITIONER.  342 U.S. 805. 

THE ATTORNEY GENERAL OF CALIFORNIA APPEARED FOR RESPONDENT.  AT THE
BAR OF THIS COURT, HE ARGUED THAT THE JUDGMENT OF THE SUPREME COURT OF
CALIFORNIA RESTED ON AN ADEQUATE NONFEDERAL GROUND.  ADMITTING THAT
HABEAS CORPUS IS ORDINARILY AN AVAILABLE MEANS TO CALIFORNIA PRISONERS
TO CHALLENGE THE CONSTITUTIONALITY OF THE PROCEEDINGS WHICH RESULTED IN
THEIR INCARCERATION, THE ATTORNEY GENERAL TOLD US THAT THE WRIT WAS
UNAVAILABLE IN THIS PARTICULAR CASE, TO THIS PARTICULAR PETITIONER
BECAUSE HE COULD HAVE AND SHOULD HAVE PRESENTED HIS FEDERAL CLAIM IN AN
APPEAL FROM HIS ORIGINAL CONVICTION.  COUNSEL FOR PETITIONER VIGOROUSLY
OPPOSED THIS CONTENTION, INSISTING THAT HABEAS CORPUS WAS AN AVAILABLE
REMEDY UNDER CALIFORNIA LAW, THAT THE FEDERAL QUESTION WAS PROPERLY
BEFORE THE COURT. 

THIS COURT, OF COURSE, DOES NOT SIT TO DETERMINE MATTERS OF STATE
LAW; NOR IS IT THE APPROPRIATE FORUM TO RESOLVE THE ARGUMENT RAISED BY
THE EARNEST OBJECTIONS OF THE ATTORNEY GENERAL OF CALIFORNIA. 

ACCORDINGLY, WE FOLLOW OUR PRECEDENTS.  (FN1)  WE CONTINUED THE CAUSE
"FOR SUCH PERIOD" AS WOULD "ENABLE COUNSEL FOR PETITIONER TO SECURE A
DETERMINATION FROM THE SUPREME COURT OF CALIFORNIA AS TO WHETHER THE
JUDGMENT HEREIN WAS INTENDED TO REST ON AN ADEQUATE INDEPENDENT STATE
GROUND OR WHETHER DECISION OF THE FEDERAL CLAIM WAS NECESSARY TO THE
JUDGMENT RENDERED."  342 U.S. 33, 34. 

COUNSEL FOR PETITIONER, IN DECEMBER 1951, DULY FILED IN THE SUPREME
COURT OF CALIFORNIA A "PETITION FOR DETERMINATION OF BASIS OF JUDGMENT"
WHICH REQUESTED AN EXPRESSION BY THAT COURT ON THE ISSUE RAISED BY OUR
ORDER.  SUBSEQUENTLY, THE CLERK OF THIS COURT RECEIVED A LETTER FROM
THE CLERK OF THE SUPREME COURT OF CALIFORNIA RELATIVE TO THIS
QUESTION.  BUT WE RECEIVED NO OFFICIAL DETERMINATION OF THE ISSUE FROM
THE SUPREME COURT OF CALIFORNIA. 

WE COULD NOT REGARD THE LETTER FROM THE CLERK OF THE SUPREME COURT OF
CALIFORNIA AS A "SUFFICIENT 'DETERMINATION' OF THE QUESTION RAISED IN
OUR ORDER OF NOVEMBER 5, 1951."  THEREFORE, ON MAY 12, 1952, WE
"FURTHER CONTINUED" THE CAUSE ON OUR DOCKET TO ENABLE COUNSEL FOR
PETITIONER TO SECURE FROM THE SUPREME COURT OF CALIFORNIA ITS OFFICIAL
DETERMINATION AS REQUESTED BY OUR EARLIER ORDER.  343 U.S. 393. 

THOUGH SOME MONTHS HAVE NOW ELAPSED, WE STILL HAVE RECEIVED NO ADVICE
FROM THE SUPREME COURT OF CALIFORNIA.  WE ARE INFORMED, HOWEVER, THAT
THE CALIFORNIA COURT ADVISED PETITIONER'S COUNSEL INFORMALLY THAT IT
DOUBTED ITS JURISDICTION TO RENDER SUCH A DETERMINATION.  AND, ALTHOUGH
COUNSEL SUBSEQUENTLY SUBMITTED BRIEFS TO THE CONTRARY, THE CALIFORNIA
COURT AGAIN INFORMED COUNSEL, THROUGH ITS CLERK, THAT IT WAS POWERLESS,
FOR WANT OF JURISDICTION, TO ISSUE ANY FURTHER OFFICIAL EXPRESSION ON
THE CASE.  IT APPEARS, THEN, THAT SO LONG AS THIS CAUSE CONTINUES ON
OUR DOCKET, COUNSEL CANNOT PROCURE THAT WHICH WE ASKED HIM TO PROCURE. 

WE GRANTED CERTIORARI IN THIS CASE "BECAUSE OF A SERIOUS CLAIM THAT
PETITIONER HAD BEEN DEPRIVED OF HIS RIGHTS UNDER THE FEDERAL
CONSTITUTION."  342 U.S. 33.  THIS COURT, ALONE, IS THE FINAL ARBITER
OF SUCH A CLAIM, AND OUR GRANT OF CERTIORARI SHOULD ENTITLE PETITIONER
TO THE CHANCE TO HAVE THE MATTER RESOLVED BY THIS COURT - PROVIDED THAT
THE STATE JUDGMENT WAS NOT BASED ON AN ADEQUATE STATE GROUND.  IF THE
STATE JUDGMENT WAS BASED ON AN ADEQUATE STATE GROUND, THE COURT, OF
COURSE, WOULD BE WITHOUT JURISDICTION TO PASS UPON THE FEDERAL
QUESTION.  DOUBT HAS SINCE ARISEN THAT SUCH JURISDICTION EXISTS.  THESE
CIRCUMSTANCES SHOULD NOT NOW ACT TO DEPRIVE PETITIONER OF HIS DAY IN
THIS COURT, (FN2) BUT THEY DO REQUIRE THAT WE TAKE SCRUPULOUS CARE, AS
WE HAVE SO OFTEN DONE BEFORE, (FN3) TO DETERMINE OUR JURISDICTION. 
THIS INVOLVES FURTHER DELAY, AND IN THIS CASE FURTHER DELAY IS
REGRETTABLE.  BUT DELAY IS NECESSARY UNLESS WE ARE TO RESOLVE THE
JURISDICTIONAL ISSUE BY SIMPLY ASSUMING THE NONEXISTENCE OF AN ADEQUATE
STATE GROUND THOUGH IN FACT ONE MAY EXIST. 

TO THE END THAT THE DOUBT IN THIS CASE MAY BE RESOLVED, WE VACATE THE
JUDGMENT OF THE SUPREME COURT OF CALIFORNIA AND REMAND THE CAUSE FOR
FURTHER PROCEEDINGS.  A NEW JUDGMENT MAY BE ENTERED, AND PETITIONER
ALSO MAY BE INFORMED BY AN OFFICIAL DETERMINATION FROM THE SUPREME
COURT OF CALIFORNIA WHETHER OR NOT THAT JUDGMENT RESTS ON AN ADEQUATE
STATE GROUND.  (FN4)  SO ORDERED. 

FN1  LOFTUS V. ILLINOIS, 334 U.S. 804 (1948); HERB V. PITCAIRN, 324
U.S. 117 (1945). 

FN2  SEE NIELSON V. LAGOW, 12 HOW.  98, 109-110 (1852). 

FN3  SEE, E.G., JENNINGS V. ILLINOIS, 342 U.S. 104 (1951); LOFTUS V.
ILLINOIS, SUPRA; HERB V. PITCAIRN, SUPRA.  MINNESOTA V. NATIONAL TEA
CO., 309 U.S. 551 (1940); HONEYMAN V. HANAN, 300 U.S. 14 (1937). 

FN4  CF. JENNINGS V. ILLINOIS, SUPRA; MINNESOTA V. NATIONAL TEA CO.,
SUPRA; HONEYMAN V. HANAN, SUPRA. 

MR. JUSTICE JACKSON, DISSENTING. 

BOTH THE WISDOM AND THE LEGALITY OF THIS POLICY TOWARD THE HIGHEST
COURT OF A STATE APPEAR DUBIOUS TO ME.  WHAT WE ARE DOING, IN ESSENCE,
IS TO VACATE A STATE COURT JUDGMENT, NOT BECAUSE IT IS FOUND TO BE
INCONSISTENT WITH FEDERAL LAW, BUT BECAUSE THE STATE COURT HAS NOT TOLD
US, WITH AN ACCEPTABLE DEGREE OF FORMALITY, WHAT REASONS LED TO
RENDERING IT. 

THIS COURT HAS BLAZED THE WAY FOR THE PRACTICE OF DISPENSING WITH
OPINIONS IN DENYING PETITIONS FOR DISCRETIONARY ORDERS, SUCH AS
CERTIORARI AND MOTIONS FOR LEAVE TO FILE PETITIONS FOR HABEAS CORPUS. 
UNLESS WE MEAN TO IMPOSE ON STATE COURTS A BURDEN WE ARE UNWILLING TO
ASSUME OURSELVES, WE SHOULD NOT VACATE THIS STATE JUDGMENT.  DOUBT OF
OUR JURISDICTION IS NO JUSTIFICATION FOR EXERCISING IT; QUITE THE
CONTRARY IS THE RULE. 

THOSE FEW OF THE CASES CITED BY THE COURT IN WHICH THIS PROCEDURE WAS
FOLLOWED ARE NOT PERSUASIVE.   THERE WAS NO EXAMINATION OF THE COURT'S
POWER TO VACATE, AND THE RESULTS DO NOT ENCOURAGE ITS REPETITION.  IN
TWO CASES, THE JUDGMENT VACATED WAS SIMPLY REINSTATED BY THE STATE
SUPREME COURT AND THE LITIGANTS WERE NEVER HEARD FROM AGAIN.  COMPARE
MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551, WITH NATIONAL TEA CO. V.
STATE, 208 MINN. 607, 294 N.W. 230; STATE TAX COMM'N V. VAN COTT, 306
U.S. 511, WITH VAN COTT V. STATE TAX COMM'N, 98 UTAH 264, 96 P.2D 740. 
IN ANOTHER INSTANCE, HOWEVER, WE PURSUED A LESS DRASTIC COURSE; WE
STAYED OUR OWN HAND WHILE PETITIONER APPLIED TO THE STATE COURT FOR
CLARIFICATION OF ITS GROUNDS OF DECISION.  COMPARE HERB V. PITCAIRN,
324 U.S. 117, WITH ID., 325 U.S. 77. 

IN THIS CASE, THE SUPREME COURT OF CALIFORNIA, HAVING PROMPTLY AND
OFFICIALLY, ALBEIT INFORMALLY, ADVISED US OF ITS GROUND OF DECISION,
FEELS ITSELF WITHOUT POWER TO MAKE A FORMAL ORDER THEREIN.  ONE REASON
IS THAT IT HAS LONG SINCE CLOSED THE CASE WITH A FINAL DETERMINATION,
AND ANOTHER IS THAT WE, BY GRANT OF CERTIORARI, HAVE LIFTED THE CASE,
RECORD AND ALL, OUT OF THAT COURT.  I CANNOT SAY THAT IT IS
UNREASONABLE FOR A STATE COURT TO REFRAIN FROM ENTERING FORMAL ORDERS
IN A CASE WHICH IS NO LONGER PENDING BEFORE IT. 

THE PLAIN TRUTH OF THE MATTER IS THAT THE GRANT OF CERTIORARI WAS AN
IRRESPONSIBLE EXERCISE OF OUR OWN POWER WITHOUT REQUIRING OR
CONSIDERING ADEQUATE JURISDICTIONAL INFORMATION.  THE CALIFORNIA
SUPREME COURT HAS A PERFECT RIGHT TO DENY AN APPLICATION FOR HABEAS
CORPUS TO REVIEW A CONTENTION THAT UNDER STATE PRACTICE COULD HAVE, AND
SHOULD HAVE, BEEN URGED ON APPEAL.  WE ARE WITHOUT POWER TO REQUIRE
STATES TO ALLOW RETRIAL DE NOVO VIA HABEAS CORPUS OF ISSUES TRIED AND
OPEN TO REVIEW ON THE ORIGINAL RECORD.  IT SEEMS TO ME PROBABLE THAT
THIS IS THE GROUND THE CALIFORNIA SUPREME COURT HAS TAKEN, NOT, AS THIS
COURT INTIMATES, FOR THIS PARTICULAR CASE, BUT AS A GENERAL RULE OF
STATE LAW, AND I THINK A WISE AND PROPER ONE.  IT PROBABLY WILL
REAFFIRM BY REINSTATING THE JUDGMENT WE UPSET TODAY.  I THINK DISMISSAL
OF OUR OWN WRIT OF CERTIORARI ON THE CANDID ADMISSION THAT IT WAS
IMPROVIDENTLY GRANTED IS OUR WISE AND LAWFUL COURSE. 
..END :



















UNITED STATES V. CALTEX (PHILIPPINES), INC. 344 U.S. 149 


NO. 16.  ARGUED OCTOBER 20, 1952 - DECIDED DECEMBER 8, 1952 - 120 CT.
CL. 518, 100 F. SUPP. 970, REVERSED. 


IN THE CIRCUMSTANCES OF THIS CASE, THE WARTIME DESTRUCTION OF PRIVATE
PROPERTY BY THE ARMY TO PREVENT ITS IMMINENT CAPTURE AND USE BY AN
ADVANCING ENEMY DID NOT ENTITLE THE OWNER TO COMPENSATION UNDER THE
FIFTH AMENDMENT.  PP. 150-156. 

(A)  WHETHER OR NOT THE PRINCIPLE LAID DOWN IN UNITED STATES V.
PACIFIC R. CO., 120 U.S. 227, WAS DICTUM WHEN ENUNCIATED, THIS COURT
HOLDS THAT IT IS THE LAW TODAY.  PP. 153-154. 

(B)  MITCHELL V. HARMONY, 13 HOW.  115, AND UNITED STATES V. RUSSELL,
13 WALL.  623, DISTINGUISHED.  PP. 152-153. 

(C)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE ARMY
EXERCISED "DELIBERATION" IN SINGLING OUT THIS PROPERTY, IN
"REQUISITIONING" IT FROM ITS OWNERS, AND IN EXERCISING "CONTROL" OVER
IT BEFORE DESTROYING IT, NOR BY THE FACT THAT THE DESTRUCTION WAS
EFFECTED PRIOR TO WITHDRAWAL.  PP. 154-155. 

UNITED STATES V. CALTEX (PHILIPPINES), INC. ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

IN A SUIT TO RECOVER COMPENSATION UNDER THE FIFTH AMENDMENT FOR
PROPERTY DESTROYED BY THE ARMY IN WARTIME TO PREVENT ITS USE BY THE
ENEMY, THE COURT OF CLAIMS GAVE JUDGMENT FOR THE PLAINTIFFS.  120 CT.
CL. 518, 100 F. SUPP. 970.  THIS COURT GRANTED CERTIORARI.  343 U.S.
955.  REVERSED, P. 156. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

EACH OF THE RESPONDENT OIL COMPANIES OWNED TERMINAL FACILITIES IN THE
PANDACAN DISTRICT OF MANILA AT THE TIME OF THE JAPANESE ATTACK UPON
PEARL HARBOR.  THESE WERE USED TO RECEIVE, HANDLE AND STORE PETROLEUM
PRODUCTS FROM INCOMING SHIPS AND TO RELEASE THEM FOR FURTHER
DISTRIBUTION THROUGHOUT THE PHILIPPINE ISLANDS.  WHARVES, RAIL AND
AUTOMOTIVE EQUIPMENT, PUMPS, PIPE LINES, STORAGE TANKS, AND WAREHOUSES
WERE INCLUDED IN THE PROPERTY ON HAND AT THE OUTBREAK OF THE WAR, AS
WELL AS A NORMAL SUPPLY OF PETROLEUM PRODUCTS. 

NEWS OF THE PEARL HARBOR ATTACK REACHED MANILA EARLY IN THE MORNING
OF DECEMBER 8, 1941.  ON THE SAME DAY, ENEMY AIR ATTACKS WERE MOUNTED
AGAINST OUR FORCES IN THE PHILIPPINES, AND THEREAFTER THE ENEMY
LAUNCHED HIS AMPHIBIOUS ASSAULT. 

ON DECEMBER 12, 1941, THE UNITED STATES ARMY, THROUGH ITS CHIEF
QUARTERMASTER, STATIONED A CONTROL OFFICER AT THE TERMINALS. 
OPERATIONS CONTINUED AT RESPONDENTS' PLANTS, BUT DISTRIBUTION OF THE
PETROLEUM PRODUCTS FOR CIVILIAN USE WAS SEVERELY RESTRICTED.  A MAJOR
SHARE OF THE EXISTING SUPPLIES WAS REQUISITIONED BY THE ARMY. 

THE MILITARY SITUATION IN THE PHILIPPINES GREW WORSE.  IN THE FACE OF
THE JAPANESE ADVANCE, THE COMMANDING GENERAL ON DECEMBER 23, 1941,
ORDERED THE WITHDRAWAL OF ALL TROOPS ON LUZON TO THE BATAAN PENINSULA. 
ON DECEMBER 25, 1941, HE DECLARED MANILA TO BE AN OPEN CITY.  ON THAT
SAME DAY, THE CHIEF ENGINEER ON THE STAFF OF THE COMMANDING GENERAL
ADDRESSED TO EACH OF THE OIL COMPANIES LETTERS STATING THAT THE
PANDACAN OIL DEPOTS "ARE REQUISITIONED BY THE U.S. ARMY."  THE LETTERS
FURTHER STATED:  "ANY ACTION DEEMED NECESSARY FOR THE DESTRUCTION OF
THIS PROPERTY WILL BE HANDLED BY THE U.S. ARMY."  AN ENGINEER IN THE
EMPLOY OF ONE OF THE COMPANIES WAS COMMISSIONED A FIRST LIEUTENANT IN
THE ARMY CORPS OF ENGINEERS TO FACILITATE THIS DESIGN. 

ON DECEMBER 26, HE RECEIVED ORDERS TO PREPARE THE FACILITIES FOR
DEMOLITION.  ON DECEMBER 27, 1941, WHILE ENEMY PLANES WERE BOMBING THE
AREA, THIS OFFICER MET WITH REPRESENTATIVES OF THE COMPANIES.  THE
ORDERS OF THE CHIEF ENGINEER HAD BEEN TRANSMITTED TO THE COMPANIES. 
LETTERS FROM THE DEPUTY CHIEF OF STAFF, BY COMMAND OF GENERAL
MACARTHUR, ALSO HAD BEEN SENT TO EACH OF THE OIL COMPANIES, DIRECTING
THE DESTRUCTION OF ALL REMAINING PETROLEUM PRODUCTS AND THE VITAL PARTS
OF THE PLANTS.  PLANS WERE LAID TO CARRY OUT THESE INSTRUCTIONS, TO
EXPEDITE THE REMOVAL OF PRODUCTS WHICH MIGHT STILL BE OF USE TO THE
TROOPS IN THE FIELD, AND TO LAY A DEMOLITION NETWORK ABOUT THE
TERMINALS.  THE REPRESENTATIVES OF CALTEX WERE GIVEN, AT THEIR
INSISTENCE, A PENCILED RECEIPT FOR ALL THE TERMINAL FACILITIES AND
STOCKS OF CALTEX. 

AT 5:40 P.M., DECEMBER 31, 1941, WHILE JAPANESE TROOPS WERE ENTERING
MANILA, ARMY PERSONNEL COMPLETED A SUCCESSFUL DEMOLITION.  ALL UNUSED
PETROLEUM PRODUCTS WERE DESTROYED, AND THE FACILITIES WERE RENDERED
USELESS TO THE ENEMY.  THE ENEMY WAS DEPRIVED OF A VALUABLE LOGISTIC
WEAPON. 

AFTER THE WAR, RESPONDENTS DEMANDED COMPENSATION FOR ALL OF THE
PROPERTY WHICH HAD BEEN USED OR DESTROYED BY THE ARMY.  THE GOVERNMENT
PAID FOR THE PETROLEUM STOCKS AND TRANSPORTATION EQUIPMENT WHICH WERE
EITHER USED OR DESTROYED BY THE ARMY, BUT IT REFUSED TO COMPENSATE
RESPONDENTS FOR THE DESTRUCTION OF THE PANDACAN TERMINAL FACILITIES. 
CLAIMING A CONSTITUTIONAL RIGHT UNDER THE FIFTH AMENDMENT (FN1) TO JUST
COMPENSATION FOR THESE TERMINAL FACILITIES, RESPONDENTS SUED IN THE
COURT OF CLAIMS.  RECOVERY WAS ALLOWED.  120 CT. CL. 518, 100 F. SUPP.
970.  WE GRANTED CERTIORARI TO REVIEW THIS JUDGMENT.  343 U.S. 955. 

AS REFLECTED IN THE FINDINGS OF THE COURT OF CLAIMS, THERE WERE TWO
RATHER DISTINCT PHASES OF ARMY OPERATIONS IN THE PANDACAN DISTRICT IN
DECEMBER 1941.  WHILE THE MILITARY EXERCISED CONSIDERABLE CONTROL OVER
THE BUSINESS OPERATIONS OF RESPONDENTS' TERMINALS DURING THE PERIOD
BETWEEN DECEMBER 12 AND DECEMBER 26, THERE WAS NOT, ACCORDING TO THE
FINDINGS BELOW, AN ASSUMPTION OF ACTUAL PHYSICAL OR PROPRIETARY
DOMINION OVER THEM DURING THIS PERIOD.  (FN2)  BOUND BY THESE FINDINGS,
RESPONDENTS DO NOT NOW QUESTION THE HOLDING OF THE COURT OF CLAIMS THAT
PRIOR TO DECEMBER 27 THERE WAS NO SEIZURE FOR WHICH JUST COMPENSATION
MUST BE PAID. 

ACCORDINGLY, IT IS THE LEGAL SIGNIFICANCE OF THE EVENTS THAT OCCURRED
BETWEEN DECEMBER 27 AND DECEMBER 31 WHICH CONCERNS US.  RESPONDENTS
CONCEDE THAT THE ARMY HAD A RIGHT TO DESTROY THE INSTALLATIONS.  BUT
THEY INSIST THAT THE DESTRUCTION CREATED A RIGHT IN THEMSELVES TO EXACT
FAIR COMPENSATION FROM THE UNITED STATES FOR WHAT WAS DESTROYED. 

THE ARGUMENT DRAWS HEAVILY FROM STATEMENTS BY THIS COURT IN MITCHELL
V. HARMONY, 13 HOW.  115 (1852), AND UNITED STATES V. RUSSELL, 13
WALL.  623 (1871).  WE AGREE THAT THE OPINIONS LEND SOME SUPPORT TO
RESPONDENT'S VIEW.  (FN3)  BUT THE LANGUAGE IN THOSE TWO CASES IS FAR
BROADER THAN THE HOLDINGS.  BOTH CASES INVOLVED EQUIPMENT WHICH HAD
BEEN IMPRESSED BY THE ARMY FOR SUBSEQUENT USE BY THE ARMY.  IN NEITHER
WAS THE ARMY'S PURPOSE LIMITED, AS IT WAS IN THIS CASE, TO THE SOLE
OBJECTIVE OF DESTROYING PROPERTY OF STRATEGIC VALUE TO PREVENT THE
ENEMY FROM USING IT TO WAGE WAR THE MORE SUCCESSFULLY. 

A CLOSE READING OF THE MITCHELL AND RUSSELL CASES SHOWS THAT THEY ARE
NOT PRECEDENT TO ESTABLISH AN COMPENSABLE TAKING IN THIS CASE.  NOR DO
THOSE CASES EXHAUST ALL THAT HAS BEEN SAID BY THIS COURT ON THE
SUBJECT.  IN UNITED STATES V. PACIFIC R. CO., 120 U.S. 227 (1887), MR.
JUSTICE FIELD, SPEAKING FOR A UNANIMOUS COURT, DISCUSSED THE QUESTION
AT LENGTH.  THAT CASE INVOLVED BRIDGES WHICH HAD BEEN DESTROYED DURING
THE WAR BETWEEN THE STATES BY A RETREATING NORTHERN ARMY TO IMPEDE THE
ADVANCE OF THE CONFEDERATE ARMY.  (FN4)  THOUGH THE POINT WAS NOT
DIRECTLY INVOLVED, THE COURT RAISED THE QUESTION OF WHETHER THIS ACT
CONSTITUTED A COMPENSABLE TAKING BY THE UNITED STATES AND ANSWERED IT
IN THE NEGATIVE: 

"THE DESTRUCTION OR INJURY OR PRIVATE PROPERTY IN BATTLE, OR IN THE
BOMBARDMENT OF CITIES AND TOWNS, AND IN MANY OTHER WAYS IN THE WAR, HAD
TO BE BORNE BY THE SUFFERERS ALONE AS ONE OF ITS CONSEQUENCES. 
WHATEVER WOULD EMBARRASS OR IMPEDE THE ADVANCE OF THE ENEMY, AS THE
BREAKING UP OF ROADS, OR THE BURNING OF BRIDGES, OR WOULD CRIPPLE AND
DEFEAT HIM, AS DESTROYING HIS MEANS OF SUBSISTENCE, WERE LAWFULLY
ORDERED BY THE COMMANDING GENERAL.  INDEED, IT WAS HIS IMPERATIVE DUTY
TO DIRECT THEIR DESTRUCTION.  THE NECESSITIES OF THE WAR CALLED FOR AND
JUSTIFIED THIS.  THE SAFETY OF THE STATE IN SUCH CASES OVERRIDES ALL
CONSIDERATIONS OF PRIVATE LOSS."  (FN5) 

IT MAY BE TRUE THAT THIS LANGUAGE ALSO WENT BEYOND THE PRECISE
QUESTIONS AT ISSUE.  BUT THE PRINCIPLES EXPRESSED WERE NEITHER NOVEL
NOR STARTLING, FOR THE COMMON LAW HAD LONG RECOGNIZED THAT IN TIMES OF
IMMINENT PERIL - SUCH AS WHEN FIRE THREATENED A WHOLE COMMUNITY - THE
SOVEREIGN COULD, WITH IMMUNITY, DESTROY THE PROPERTY OF A FEW THAT THE
PROPERTY OF MANY AND THE LIVES OF MANY MORE COULD BE SAVED.  (FN6)  AND
WHAT WAS SAID IN THE PACIFIC RAILROAD CASE WAS LATER MADE THE BASIS FOR
THE HOLDING IN JURAGUA IRON CO. V. UNITED STATES, 212 U.S. 297 (1909),
WHERE RECOVERY WAS DENIED TO THE OWNERS OF A FACTORY WHICH HAD BEEN
DESTROYED BY AMERICAN SOLDIERS IN THE FIELD IN CUBA BECAUSE IT WAS
THOUGHT THAT THE STRUCTURE HOUSED THE GERMS OF A CONTAGIOUS DISEASE. 

THEREFORE, WHETHER OR NOT THE PRINCIPLE LAID DOWN BY MR. JUSTICE
FIELD WAS DICTUM WHEN HE ENUNCIATED IT, WE HOLD THAT IT IS LAW TODAY. 
IN OUR VIEW, IT MUST GOVERN IN THIS CASE.  RESPONDENTS AND THE MAJORITY
OF THE COURT OF CLAIMS, ARGUING TO THE CONTRARY, HAVE PLACED GREAT
EMPHASIS ON THE FACT THAT THE ARMY EXERCISED "DELIBERATION" IN SINGLING
OUT THIS PROPERTY, IN "REQUISITIONING" IT FROM ITS OWNERS, AND IN
EXERCISING "CONTROL" OVER IT BEFORE DEVASTATING IT.  WE NEED NOT LABOR
OVER THESE LABELS; IT MAY BE THAT THEY DESCRIBE ADEQUATELY WHAT WAS
DONE, BUT THEY DO NOT SHOW THE LEGAL CONSEQUENCES OF WHAT WAS DONE. 
THE "REQUISITION" INVOLVED IN THIS CASE WAS NO MORE THAN AN ORDER TO
EVACUATE THE PREMISES WHICH WERE SLATED FOR DEMOLITION.  THE
"DELIBERATION" BEHIND THE ORDER WAS NO MORE THAN A DESIGN TO PREVENT
THE ENEMY FROM REALIZING ANY STRATEGIC VALUE FROM AN AREA WHICH HE WAS
SOON TO CAPTURE. 

HAD THE ARMY HESITATED, HAD THE FACILITIES ONLY BEEN DESTROYED AFTER
RETREAT, RESPONDENTS WOULD CERTAINLY HAVE NO CLAIMS TO COMPENSATION. 
THE ARMY DID NOT HESITATE.  IT IS DOUBTFUL THAT ANY CONCERN OVER THE
LEGAL NICETIES OF THE SITUATION ENTERED INTO THE DECISION TO DESTROY
THE PLANTS PROMPTLY WHILE THERE WAS YET TIME TO DESTROY THEM
THOROUGHLY.  (FN7)  NOR DO WE THINK IT LEGALLY SIGNIFICANT THAT THE
DESTRUCTION WAS AFFECTED PRIOR TO WITHDRAWAL.  THE SHORT OF THE MATTER
IS THAT THIS PROPERTY, DUE TO THE FORTUNES OF WAR, HAD BECOME A
POTENTIAL WEAPON OF GREAT SIGNIFICANCE TO THE INVADER.  IT WAS
DESTROYED, NOT APPROPRIATED FOR SUBSEQUENT USE.  IT WAS DESTROYED THAT
THE UNITED STATES MIGHT BETTER AND SOONER DESTROY THE ENEMY. 

THE TERSE LANGUAGE OF THE FIFTH AMENDMENT IS NO COMPREHENSIVE PROMISE
THAT THE UNITED STATES WILL MAKE WHOLE ALL WHO SUFFER FROM EVERY RAVAGE
AND BURDEN OF WAR.  THIS COURT HAS LONG RECOGNIZED THAT IN WARTIME MANY
LOSSES MUST BE ATTRIBUTED SOLELY TO THE FORTUNES OF WAR, AND NOT TO THE
SOVEREIGN.  (FN8)  NO RIGID RULES CAN BE LAID DOWN TO DISTINGUISH
COMPENSABLE LOSSES FROM NONCOMPENSABLE LOSSES.  EACH CASE MUST BE
JUDGED ON ITS OWN FACTS.  BUT THE GENERAL PRINCIPLES LAID DOWN IN THE
PACIFIC RAILROAD CASE SEEM ESPECIALLY APPLICABLE HERE.  VIEWED
REALISTICALLY, THEN, THE DESTRUCTION OF RESPONDENTS' TERMINALS BY A
TRAINED TEAM OF ENGINEERS IN THE FACE OF THEIR IMPENDING SEIZURE BY THE
ENEMY WAS NO DIFFERENT THAN THE DESTRUCTION OF THE BRIDGES IN THE
PACIFIC RAILROAD CASE.  ADHERING TO THE PRINCIPLES OF THAT CASE, WE
CONCLUDE THAT THE COURT BELOW ERRED IN HOLDING THAT RESPONDENTS HAVE A
CONSTITUTIONAL RIGHT TO COMPENSATION ON THE CLAIMS PRESENTED TO THIS
COURT.  REVERSED. 

FN1  "  ...  NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE,
WITHOUT JUST COMPENSATION." 

FN2  AT ONE POINT SHORTLY AFTER THE OUTBREAK OF THE WAR, THE ARMY
CONTEMPLATED LEASING RESPONDENTS' FACILITIES.  BUT THIS PLAN WAS NEVER
PUT INTO EFFECT.  RESPONDENTS CONTINUED TO OPERATE THE PLANTS
THEMSELVES UP TO DECEMBER 26, 1941. 

FN3  IN THE RUSSELL CASE, SUPRA, THE COURT SAID, 13 WALL., AT 627
628: 

"EXTRAORDINARY AND UNFORESEEN OCCASIONS ARISE, HOWEVER, BEYOND ALL
DOUBT, IN CASES OF EXTREME NECESSITY IN TIME OF WAR OR OF IMMEDIATE AND
IMPENDING PUBLIC DANGER, IN WHICH PRIVATE PROPERTY MAY BE IMPRESSED
INTO THE PUBLIC SERVICE, OR MAY BE SEIZED AND APPROPRIATED TO THE
PUBLIC USE, OR MAY EVEN BE DESTROYED WITHOUT THE CONSENT OF THE OWNER
...  .  EXIGENCIES OF THE KIND DO ARISE IN TIME OF WAR OR IMPENDING
PUBLIC DANGER, BUT IT IS THE EMERGENCY, AS WAS SAID BY A GREAT
MAGISTRATE, THAT GIVES THE RIGHT, AND IT IS CLEAR THAT THE EMERGENCY
MUST BE SHOWN TO EXIST BEFORE THE TAKING CAN BE JUSTIFIED.  SUCH A
JUSTIFICATION MAY BE SHOWN, AND WHEN SHOWN THE RULE IS WELL SETTLED
THAT THE OFFICER TAKING PRIVATE PROPERTY FOR SUCH A PURPOSE, IF THE
EMERGENCY IS FULLY PROVED, IS NOT A TRESPASSER, AND THAT THE GOVERNMENT
IS BOUND TO MAKE FULL COMPENSATION TO THE OWNER." 

FN4  THE NARROW ISSUE IN THE CASE WAS WHETHER, AFTER THE ARMY REBUILT
THE BRIDGES IT HAD PREVIOUSLY DESTROYED, THE ARMY COULD CHARGE FOR THE
EXPENSE OF THE REBUILDING.  ON THIS ISSUE THE COURT HELD FOR THE
RAILROAD. 

FN5  120 U.S., AT 234. 

FN6  FOR EARLIER CASES EXPRESSING SUCH PRINCIPLES SEE, E.G., BOWDITCH
V. BOSTON, 101 U.S. 16, 18-19 (1879); RESPUBLICA V. SPARHAWK, 1 DALL. 
357 (1788); PARHAM V. THE JUSTICES, 9 GA. 341, 348-349 (1851).  SEE
ALSO 2 KENT'S COMMENTARIES (14TH ED.)  338. 

FN7  CF. RESPUBLICA V. SPARHAWK, SUPRA, WHERE THE FOLLOWING APPEARS,
1 DALL., AT 363: 

"WE FIND, INDEED, A MEMORABLE INSTANCE OF FOLLY RECORDED IN THE 3
VOL. OF CLARENDON'S HISTORY, WHERE IT IS MENTIONED, THAT THE LORD MAYOR
OF LONDON, IN 1966, WHEN THAT CITY WAS ON FIRE, WOULD NOT GIVE
DIRECTIONS FOR, OR CONSENT TO, THE PULLING DOWN FORTY WOODEN HOUSES, OR
TO THE REMOVING THE FURNITURE, &C. BELONGING TO THE LAWYERS OF THE
TEMPLE, THEN ON THE CIRCUIT, FOR FEAR THAT HE SHOULD BE ANSWERABLE FOR
A TRESPASS; AND IN CONSEQUENCE OF THIS CONDUCT HALF THAT GREAT CITY WAS
BURNT." 

FN8  LICHTER V. UNITED STATES, 334 U.S. 742, 787-788 (1948); BOWLES
V. WILLINGHAM, 321 U.S. 503, 517-519 (1944); OMNIA COMMERCIAL CO. V.
UNITED STATES, 261 U.S. 502 (1923). 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I HAVE NO DOUBT THAT THE MILITARY HAD AUTHORITY TO SELECT THIS
PARTICULAR PROPERTY FOR DESTRUCTION.  BUT WHATEVER THE WEIGHT OF
AUTHORITY MAY BE, I BELIEVE THAT THE FIFTH AMENDMENT REQUIRES
COMPENSATION FOR THE TAKING.  THE PROPERTY WAS DESTROYED, NOT BECAUSE
IT WAS IN THE NATURE OF A PUBLIC NUISANCE, BUT BECAUSE ITS DESTRUCTION
WAS DEEMED NECESSARY TO HELP WIN THE WAR.  IT WAS AS CLEARLY
APPROPRIATED TO THAT END AS ANIMALS, FOOD, AND SUPPLIES REQUISITIONED
FOR THE DEFENSE EFFORT.  AS THE COURT SAYS, THE DESTRUCTION OF THIS
PROPERTY DEPRIVED THE ENEMY OF A VALUABLE LOGISTIC WEAPON.    IT SEEMS
TO ME THAT THE GUIDING PRINCIPLE SHOULD BE THIS:  WHENEVER THE
GOVERNMENT DETERMINES THAT ONE PERSON'S PROPERTY - WHATEVER IT MAY BE -
IS ESSENTIAL TO THE WAR EFFORT AND APPROPRIATES IT FOR THE COMMON GOOD,
THE PUBLIC PURSE, RATHER THAN THE INDIVIDUAL, SHOULD BEAR THE LOSS. 
..END :






















LLOYD A. FRY ROOFING CO. V. WOOD, MEMBERS OF THE ARKANSAS PUBLIC SERVICE
COMMISSION 344 U.S. 157 


NO. 37.  ARGUED NOVEMBER 10, 1952 - DECIDED DECEMBER 8, 1952 - 219 ARK.
553, 244 S.W.2D 147, AFFIRMED. 


PETITIONER MANUFACTURES IN TENNESSEE PRODUCTS WHICH IT SENDS IN TRUCKS
TO CUSTOMERS IN NEARBY STATES.  FINDING THAT DRIVER-OWNERS CARRYING
THOSE PRODUCTS IN ARKANSAS, WHO ALLEGEDLY HAD LEASED THEIR VEHICLES TO
PETITIONER, WERE IN REALITY TRANSPORTING PETITIONER'S GOODS AS
"CONTRACT CARRIERS" FOR WHICH A STATE ACT REQUIRED A PERMIT, THE STATE
SUPREME COURT DISMISSED PETITIONER'S BILL PRAYING THAT ENFORCEMENT OF
THE ACT BE ENJOINED.  NEITHER PETITIONER NOR THE DRIVERS HAD OBTAINED
ANY KIND OF AUTHORITY FROM THE INTERSTATE COMMERCE COMMISSION.  HELD: 

1.  THE FINDING OF THE STATE SUPREME COURT THAT THE DRIVER-OWNERS
WERE IN REALITY TRANSPORTING PETITIONER'S GOODS AS CONTRACT CARRIERS IS
NOT WITHOUT FACTUAL FOUNDATION AND IS ACCEPTED BY THIS COURT.  PP. 159
160. 

2.  THE STATE'S REQUIREMENT OF A PERMIT IN SUCH CIRCUMSTANCES IS NOT
AN UNDUE BURDEN ON INTERSTATE COMMERCE, AND DOES NOT CONFLICT WITH THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION NOR WITH THE FEDERAL MOTOR
CARRIER ACT.  PP. 161-163 

3.  BUCK V. KUYKENDALL, 267 U.S. 307, DISTINGUISHED.  PP. 161-162. 

4.  IT IS UNNECESSARY HERE TO CONSIDER APPREHENDED BURDENSOME
CONDITIONS WHICH THE STATE HAS NOT ATTEMPTED TO ENFORCE.  PP. 162-163 

5.  THE STATE IS NOT WITHOUT POWER TO REQUIRE INTERSTATE MOTOR
CARRIERS TO IDENTIFY THEMSELVES AS USERS OF THE STATE'S HIGHWAYS.  P.
163. 

LLOYD A. FRY ROOFING CO. V. WOOD ET AL., MEMBERS OF THE ARKANSAS PUBLIC
SERVICE COMMISSION. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

IN AN ACTION BROUGHT BY PETITIONER IN AN ARKANSAS STATE COURT TO
ENJOIN ENFORCEMENT OF THE ARKANSAS MOTOR CARRIER ACT, THE STATE SUPREME
COURT ORDERED DISMISSAL OF THE BILL.  219 ARK. 553, 244 S.W.2D 147. 
THIS COURT GRANTED CERTIORARI.  343 U.S. 962.  AFFIRMED, P. 163. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, LLOYD A. FRY ROOFING COMPANY, MANUFACTURES ASPHALT
ROOFING PRODUCTS IN MEMPHIS, TENNESSEE, AND SENDS THEM IN TRUCKS TO
CUSTOMERS IN NEARBY STATES.  SOME OF THESE TRUCKS ARE DRIVEN BY THEIR
OWNERS WHO HAVE ALLEGEDLY LEASED THEM TO THE PETITIONER.  FIVE OF THESE
DRIVER-OWNERS WHILE CARRYING FRY'S INTERSTATE SHIPMENTS ON ARKANSAS
HIGHWAYS WERE ARRESTED FOR HAVING FAILED TO OBTAIN A PERMIT AS REQUIRED
OF ALL CONTRACT CARRIERS BY SEC. 11 OF THE ARKANSAS MOTOR ACT.  (FN1)
PETITIONER BROUGHT THIS ACTION IN AN ARKANSAS STATE COURT TO ENJOIN THE
STATE'S PUBLIC SERVICE COMMISSION FROM FURTHER MOLESTATION OR
PROSECUTION OF THE DRIVERS.  THE BILL ASSERTED BOTH STATE AND FEDERAL
GROUNDS FOR DENYING THAT THE STATE LAW COULD BE APPLIED TO REQUIRE A
PERMIT.  THE STATE GROUNDS ALLEGED WERE:  NEITHER PETITIONER FRY
ROOFING COMPANY NOR THE TRUCK DRIVERS COULD BE REQUIRED TO GET A STATE
PERMIT, BECAUSE THE STATE LAW EXEMPTED "PRIVATE" CARRIERS FROM THAT
DUTY, AND PETITIONER WAS SUCH A "PRIVATE CARRIER" - THAT IS, A
COMMERCIAL ENTERPRISE, CARRYING ITS OWN PRODUCTS EXCLUSIVELY IN ITS OWN
LEASED TRUCKS OPERATED BY ITS OWN BONA FIDE DRIVER-EMPLOYEES.  SINCE,
PETITIONER CLAIMED, THE DRIVERS WERE ITS BONA FIDE EMPLOYEES, IT
NECESSARILY FOLLOWED THAT THEY NEED NOT GET STATE PERMITS AS "CONTRACT
CARRIERS" BECAUSE THEY WERE NOT IN THE BUSINESS OF TRANSPORTING GOODS
FOR HIRE.  (FN2) THE FEDERAL GROUND ASSERTED BY PETITIONER TO PREVENT
APPLICATION OF THE STATE STATUTE WAS THAT REQUIRING EITHER FRY OR THE
DRIVERS TO GET STATE PERMITS WOULD UNDULY BURDEN INTERSTATE COMMERCE IN
VIOLATION OF THE UNITED STATES CONSTITUTION AND WOULD INVADE A FIELD OF
REGULATION PRE-EMPTED BY THE FEDERAL MOTOR CARRIER ACT.  (FN3) 

ANSWERING THE BILL, THE STATE COMMISSION ASKED THE COURT TO DISMISS
IT, STRONGLY URGING THAT PETITIONER'S ALLEGED LEASE OF TRUCKS AND
OPERATION OF THEM BY ITS OWN EMPLOYEES WERE MERE PRETENSES, A
SUBTERFUGE TO ENABLE PETITIONER AND OTHERS TO EVADE AND ESCAPE THE
REGULATORY PROVISIONS OF THE ARKANSAS MOTOR ACT.  AFTER LENGTHY
HEARINGS THE TRIAL COURT FOUND THAT THE ARRESTED DRIVERS WERE IN FACT
BONA FIDE EMPLOYEES OF PETITIONER, THAT THE TRUCK LEASES WERE ALSO BONA
FIDE, AND THAT PETITIONER WAS THEREFORE TRANSPORTING ITS OWN GOODS AS A
PRIVATE CARRIER EXEMPT FROM THE STATE ACT.  FOR THIS REASON THE COURT
HELD THAT THE ACT DID NOT REQUIRE EITHER PETITIONER OR ITS DRIVERS TO
GET A PERMIT.  ACCORDINGLY THE COMMISSION WAS ENJOINED AS PRAYED. 
REVIEWING THE FACTS FOR ITSELF THE STATE SUPREME COURT FOUND THAT THE
ARRESTED TRUCK DRIVERS WERE NOT PETITIONER'S EMPLOYEES, THAT THE TRUCK
LEASE ARRANGEMENTS WERE SHAMS, AND THAT PETITIONER WAS THEREFORE A
SHIPPER - NOT A CARRIER OF ANY KIND.  IN THIS SITUATION THE COURT FOUND
THAT THE DRIVER-OWNERS WERE IN REALITY TRANSPORTING PETITIONER'S GOODS
AS "CONTRACT CARRIERS" FOR HIRE, ENGAGED IN THE VERY KIND OF BUSINESS
FOR WHICH SEC. 11 OF THE STATE ACT REQUIRED A REHEARING, THEREBY
REJECTING THE FEDERAL QUESTIONS RAISED.  219 ARK. 553, 244 S.W.2D 147. 
CERTIORARI WAS GRANTED BECAUSE OF THE COMMERCE CLAUSE AND FEDERAL MOTOR
CARRIER ACT QUESTIONS.  343 U.S. 962. 

WE ARE URGED TO SET ASIDE THE FINDINGS OF THE STATE SUPREME COURT
BEFORE PASSING UPON THE CONSTITUTIONAL QUESTIONS PRESENTED.  PETITIONER
CONTENDS THAT THESE FINDINGS ARE WITHOUT EVIDENTIAL SUPPORT AND THAT
THE SUBSIDIARY FINDINGS DO NOT SUPPORT THE ULTIMATE CONCLUSION THAT THE
LEASES WERE SHAMS.  WHETHER REJECTION OF THESE FINDINGS WOULD PLACE
PETITIONER'S COMMERCE CLAUSE CONTENTIONS IN A MORE FAVORABLE POSITION,
WE NEED NOT CONSIDER.  FOR THERE IS MUCH RECORD EVIDENCE, BOTH ORAL AND
WRITTEN, SOME OF WHICH TENDS TO SUPPORT PETITIONER'S CONTENTION OF GOOD
FAITH ARRANGEMENTS AND SOME THE CONTRARY.  SOME DETAILS OF PETITIONER'S
CONDUCT RESEMBLE AND SOME DETAILS DIFFER FROM PATTERNS OF CONDUCT FOUND
BY COURTS IN OTHER CASES TO HAVE BEEN CONTRIVED TO AVOID LEGAL
REGULATION.  SEE, E.G., UNITED STATES V. LA TUFF TRANSFER SERVICE, 95
F. SUPP. 375, AND CASES THERE CITED.  THERE ARE NO EXCEPTIONAL
CIRCUMSTANCES OF ANY KIND THAT WOULD JUSTIFY US IN REJECTING THE
SUPREME COURT'S FINDINGS; THEY ARE NOT WITHOUT FACTUAL FOUNDATION, AND
WE ACCEPT THEM. 

THE FINDING THAT THE ARRESTED DRIVERS OWN AND OPERATE THE TRUCKS FOR
HIRE MAKES THEM CONTRACT CARRIERS AS DEFINED IN THE STATE ACT.  SECTION
11 OF THAT ACT REQUIRES CONTRACT CARRIERS TO GET A PERMIT AND OUTLINES
CERTAIN CONSIDERATIONS THE STATE COMMISSION MAY WEIGH IN GRANTING OR
REFUSING THE PERMIT.  AMONG THESE MATTERS IS THE ADEQUACY OF
TRANSPORTATION SERVICES ALREADY BEING PERFORMED BY "ANY RAILROAD,
STREET RAILWAY OR MOTOR CARRIER."  REFUSAL OF A STATE CERTIFICATE BASED
ON SUCH GROUNDS WAS HELD TO BE AN UNCONSTITUTIONAL OBSTRUCTION OF
INTERSTATE COMMERCE IN BUCK V. KUYKENDALL, 267 U.S. 307.  TO DENY THESE
INTERSTATE CARRIERS AN ARKANSAS PERMIT FOR SUCH REASONS WOULD CONFLICT
WITH THE BUCK HOLDING. 

UNLIKE THE SITUATION IN THE BUCK CASE, ARKANSAS HAS NOT REFUSED TO
GRANT A PERMIT FOR INTERSTATE CARRIAGE OF GOODS ON STATE HIGHWAYS.  IT
HAS ASKED THESE DRIVER-OWNERS TO DO NOTHING EXCEPT APPLY FOR A PERMIT
AS CONTRACT CARRIERS ARE REQUIRED TO DO BY THE STATE ACT.  AND THE
STATE COMMISSIONER HERE EXPRESSLY DISCLAIMS ANY "DISCRETIONARY RIGHT TO
REFUSE TO GRANT A PERMIT FOR CONTRACT CARRIAGE WHERE THAT CARRIAGE IS
IN INTERSTATE COMMERCE."  THE STATE ASSERTS NO POWER OR PURPOSE TO
REQUIRE THE DRIVERS TO DO MORE THAN REGISTER WITH THE APPROPRIATE
AGENCY.  (FN4)  SUCH AN IDENTIFICATION IS NECESSARY, THE COMMISSION
URGES, IN ORDER THAT IT MAY PROPERLY APPLY THE STATE'S VALID POLICE,
WELFARE, AND SAFETY REGULATIONS TO MOTOR CARRIERS USING ITS HIGHWAYS. 
NOR IS THERE ANY SHOWING WHATEVER THAT THE COMMISSION HAS ATTEMPTED OR
WILL ATTEMPT TO ATTACH ANY BURDENSOME CONDITIONS TO THE GRANT OF A
PERMIT, OR CONDITIONS THAT WOULD IN ANY MANNER CONFLICT WITH THE
NATIONAL MOTOR CARRIER ACT OR ANY INTERSTATE COMMERCE COMMISSION
REGULATIONS ISSUED THEREUNDER.  MOREOVER, THE ARKANSAS ACT IMPOSES UPON
ITS COMMISSION THE DUTY OF RECONCILING STATE REGULATION WITH THAT OF
THE INTERSTATE COMMERCE COMMISSION, JUST AS THE INTERSTATE COMMERCE ACT
REQUIRES FEDERAL OFFICIALS TO COOPERATE WITH THE STATES AND THEIR DULY
AUTHORIZED STATE OFFICIALS.  HERE NEITHER PETITIONER NOR THE DRIVERS
HAVE OBTAINED ANY KIND OF AUTHORITY FROM THE INTERSTATE COMMERCE
COMMISSION.  INDEED, PETITIONER'S WHOLE CASE HAS BEEN BUILT ON THE
PREMISE THAT NEITHER IT NOR THE DRIVERS MUST GET A PERMIT FROM THE
STATE OR THE NATIONAL REGULATORY AGENCY.  IN THIS SITUATION OUR PRIOR
CASES MAKE CLEAR THAT A STATE CAN REGULATE SO LONG AS NO UNDUE BURDEN
IS IMPOSED ON INTERSTATE COMMERCE, AND THAT A MERE REQUIREMENT FOR A
PERMIT IS NOT SUCH A BURDEN.  (FN5)  IT WILL BE TIME ENOUGH TO CONSIDER
APPREHENDED BURDENSOME CONDITIONS WHEN AND IF THE STATE ATTEMPTS TO
IMPOSE AND ENFORCE THEM.  AT PRESENT WE HOLD ONLY THAT ARKANSAS IS NOT
POWERLESS TO REQUIRE INTERSTATE MOTOR CARRIERS TO IDENTIFY THEMSELVES
AS USERS OF THAT STATE'S HIGHWAYS.  AFFIRMED. 

FN1  "NO PERSON SHALL ENGAGE IN THE BUSINESS OF A CONTRACT CARRIER BY
MOTOR VEHICLE OVER ANY PUBLIC HIGHWAY IN THIS STATE UNLESS THERE IS IN
FORCE WITH RESPECT TO SUCH CARRIER A PERMIT ISSUED BY THE COMMISSION,
AUTHORIZING SUCH PERSONS TO ENGAGE IN SUCH BUSINESS  ...  ."  ARK. 
ACTS. 1941, NO. 367, AT 937, 947-948. 

FN2  THE STATE ACT'S DEFINITION OF A CONTRACT CARRIER IS: 

"THE TERM 'CONTRACT CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON, NOT A
COMMON CARRIER INCLUDED UNDER PARAGRAPH 7, SECTION 5(A) OF THIS ACT,
WHO OR WHICH, UNDER INDIVIDUAL CONTRACTS OR AGREEMENTS, AND WHETHER
DIRECTLY OR INDIRECTLY OR BY A LEASE OF EQUIPMENT OR FRANCHISE RIGHTS,
OR ANY OTHER ARRANGEMENT, TRANSPORTS PASSENGERS OR PROPERTY BY MOTOR
VEHICLE FOR COMPENSATION."  ARK. ACTS 1941, NO. 367, SEC. 5(A)(8). 
COMPARE DEFINITION IN THE UNITED STATES MOTOR CARRIER ACT, PART II OF
THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 303(15). 

FN3  49 STAT. 543, AS AMENDED, 54 STAT. 919, 49 U.S.C. SECS. 301 ET
SEQ. THE FEDERAL ACT CONTENTION WAS NOT SPECIFICALLY REFERRED TO IN THE
ORIGINAL BILL, BUT WAS URGED IN, CONSIDERED AND REJECTED BY THE STATE
SUPREME COURT. 

FN4  "IT APPEARED THAT WHILE THE ACT CALLS THE CERTIFICATE ONE OF
'PUBLIC CONVENIENCE AND NECESSITY,' THE COMMISSION HAD RECOGNIZED,
BEFORE THIS SUIT WAS BEGUN, THAT,  ...  IT HAD NO DISCRETION WHERE THE
CARRIER WAS ENGAGED EXCLUSIVELY IN INTERSTATE COMMERCE, AND WAS WILLING
TO GRANT TO PLAINTIFFS A CERTIFICATE UPON APPLICATION AND COMPLIANCE
WITH OTHER PROVISIONS OF THE LAW."  CLARK V. POOR, 274 U.S. 554, 556. 
IN THE CLARK CASE THIS COURT AFFIRMED AN ORDER DISMISSING THE BILL. 
SEE COLUMBIA TERMINALS CO. V. LAMBERT, 30 F. SUPP. 28, 32, AND 309 U.S.
620. 

FN5  IN COLUMBIA TERMINALS CO. V. LAMBERT, 30 F. SUPP. 28, THE
DISTRICT COURT UPHELD A MISSOURI STATUTE READING:  "IT IS HEREBY
DECLARED UNLAWFUL FOR ANY MOTOR CARRIER  ...  TO USE ANY OF THE PUBLIC
HIGHWAYS OF THIS STATE FOR THE TRANSPORTATION OF PERSONS OR PROPERTY,
OR BOTH, IN INTERSTATE COMMERCE WITHOUT FIRST HAVING OBTAINED FROM THE
COMMISSION A PERMIT SO TO DO  ...  ."  BUCK V. KUYKENDALL, 267 U.S.
307, WAS HELD NOT TO REQUIRE THE STATUTE'S INVALIDATION, SINCE MISSOURI
HAD NOT REFUSED TO GRANT A PERMIT ON THE GROUND THAT THE STATE HAD
POWER TO SAY WHAT INTERSTATE COMMERCE WOULD BENEFIT THE STATE AND WHAT
WOULD NOT.  AGREEING WITH THIS CONSTITUTIONAL HOLDING, WE ORDERED THE
COMPLAINT DISMISSED.  309 U.S. 620.  SEE ALSO EICHHOLZ V. PUBLIC
SERVICE COMM'N, 306 U.S. 268, 273-274; H.P. WELCH CO. V. NEW HAMPSHIRE,
306 U.S. 79, 84, 85; MAURER V. HAMILTON, 309 U.S. 598, AFFIRMING 336
PA. 17, 7 A.2D 466; MCDONALD V. THOMPSON 305 U.S. 263, AFFIRMING 95
F.2D 937; SOUTH CAROLINA STATE HIGHWAY DEPT. V. BARNWELL BROS., INC.,
303 U.S. 177.  CF. BUCK V. KUYKENDALL, 267 U.S. 307, AND HOOD & SONS,
INC. V. DU MOND, 336 U.S. 525, 538. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BURTON
AND MR. JUSTICE MINTON JOIN, DISSENTING. 

WHETHER THE DRIVER-OWNERS INVOLVED HERE ARE CONTRACT OR PRIVATE
CARRIERS IS IMMATERIAL TO THE DETERMINATION OF THE FEDERAL QUESTION
PRESENTED.  THAT QUESTION IS WHETHER ARKANSAS CAN REQUIRE A PERSON
ENGAGED EXCLUSIVELY IN THE INTERSTATE TRANSPORTATION OF GOODS BY MOTOR
CARRIED TO OBTAIN A CERTIFICATE OF NECESSITY AND CONVENIENCE FROM
ARKANSAS.  THAT IS PRECISELY WHAT ARKANSAS HAS REQUIRED, AS MADE CLEAR
BY THE OPINION OF THE STATE SUPREME COURT IN THE INSTANT CASE.  THE
COURT SAID, 

"WE ARE OF THE OPINION THAT THE DRIVER-OWNERS INVOLVED IN THIS
LITIGATION WERE CONTRACT CARRIERS" (AS DEFINED IN THE ARKANSAS STATUTE)
AND "  ...  AND THAT THEY WERE THEREFORE REQUIRED TO HAVE A CERTIFICATE
OF NECESSITY AND CONVENIENCE FROM THE ARKANSAS PUBLIC SERVICE
COMMISSION."  219 ARK. 553, 557, 244 S.W.2D 147, 149. 

THE LABEL "CERTIFICATE OF NECESSITY AND CONVENIENCE" IS MORE ACCURATE
THAN THE WORD "PERMIT," FOR THE ARKANSAS LAW MAKES THE GRANT OF
PERMISSION DEPENDENT UPON A CONSIDERATION OF THE FOLLOWING FACTORS:
(FN1)  "THE RELIABILITY AND FINANCIAL CONDITION OF THE APPLICANT" - HIS
"SENSE OF RESPONSIBILITY TOWARD THE PUBLIC" - "THE TRANSPORTATION
SERVICE BEING MAINTAINED BY ANY RAILROAD, STREET RAILWAY OR MOTOR
CARRIER" - "THE LIKELIHOOD OF THE PROPOSED SERVICE BEING PERMANENT AND
CONTINUOUS THROUGHOUT TWELVE MONTHS OF THE YEAR" - "THE EFFECT WHICH
SUCH PROPOSED TRANSPORTATION SERVICE MAY HAVE UPON EXISTING
TRANSPORTATION SERVICE" - "ANY OTHER MATTERS TENDING TO SHOW THE
NECESSITY OR WANT OF NECESSITY FOR GRANTING SAID APPLICATION."  THE
PERMIT WILL ISSUE IF IT APPEARS THAT "THE APPLICANT IS FIT, WILLING,
AND ABLE" PROPERLY TO PERFORM THE SERVICE AND IF THE PROPOSED OPERATION
"WILL PROMOTE THE PUBLIC INTEREST" AND THE POLICY OF THE ACT.  (FN2) 

THIS STATUTE IS A REGULATION OF INTERSTATE COMMERCE, NOT A REGULATION
OF THE USE OF ARKANSAS' HIGHWAYS.  IT IS PRECISELY THE KIND OF CONTROL
WHICH THE STATE OF WASHINGTON TRIED TO EXERCISE OVER MOTOR CARRIERS AND
WHICH WAS DENIED HER BY BUCK V. KUYKENDALL, 267 U.S. 307.  AS MR.
JUSTICE BRANDEIS, SPEAKING FOR THE COURT IN THAT CASE, SAID, THE EFFECT
OF THIS KIND OF STATE REGULATION IS "NOT MERELY TO BURDEN BUT TO
OBSTRUCT" INTERSTATE COMMERCE.  ID., AT 316. 

STATE REGULATIONS IN THE INTEREST OF SAFETY, THE EXACTION OF A FEE
FOR HIGHWAY MAINTENANCE, AND THE LIKE ARE OF A DIFFERENT CHARACTER. 
SEE HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177, 189, AND CASES
CITED.  SO IS A REQUIREMENT THAT AN INTERSTATE CARRIER GET A PERMIT TO
DO INTRASTATE BUSINESS.  SEE EICHHOLZ V. COMMISSION, 306 U.S. 268. 
THE CERTIFICATE OR PERMIT EXACTED HERE IS ONE AUTHORIZING AN INTERSTATE
CONTRACT CARRIER "TO ENGAGE IN SUCH BUSINESS."  UNTIL TODAY NO STATE
COULD IMPOSE ANY SUCH CONDITION ON ONE ENGAGED EXCLUSIVELY IN
INTERSTATE COMMERCE.  UNTIL TODAY SUCH A CERTIFICATE WAS THE CONCERN
SOLELY OF THE INTERSTATE COMMERCE COMMISSION.  CONGRESS GAVE THE
COMMISSION AUTHORITY TO REGULATE INTERSTATE CONTRACT CARRIERS (49
U.S.C. SEC. 304(A)(2)).  CONGRESS MADE IT MANDATORY FOR THEM TO OBTAIN
A PERMIT TO DO BUSINESS (ID., SEC. 309).  IT GAVE THE COMMISSION BROAD
POWERS OF INVESTIGATION OVER THESE CARRIERS (ID., SEC. 304(C)),
PROVIDED FOR INJUNCTIONS AGAINST VIOLATIONS (ID., SEC. 322(B)), AND
IMPOSED CRIMINAL SANCTIONS (ID., SEC. 322(A)).  THERE IS NO PHASE OF
THE OPERATION, WHICH ARKANSAS IN THIS ACTION SEEKS TO REGULATE, THAT
CONGRESS HAS LEFT UNTOUCHED.  IT IS THE INTERSTATE COMMERCE COMMISSION
THAT MUST DETERMINE WHETHER THIS LEASING OPERATION IS BONA FIDE OR A
SHAM, WHETHER THE CARRIERS ARE PRIVATE INTERSTATE CARRIERS REQUIRING NO
PERMIT OR INTERSTATE CONTRACT CARRIERS REQUIRING ONE.  CONGRESS IN
OTHER WORDS HAS PRE-EMPTED THE FIELD, PRECLUDING BOTH INCONSISTENT AND
OVERLAPPING STATE REGULATIONS.  (FN3)  SEE HINES V. DAVIDOWITZ, 312
U.S. 52; HILL V. FLORIDA, 325 U.S. 538; RICE V. SANTA FE ELEVATOR
CORP., 331 U.S. 218; BETHLEHEM STEEL CO. V. STATE BOARD, 330 U.S. 767;
LA CROSSE TEL. CORP. V. WISCONSIN BOARD, 336 U.S. 18; PLANKINTON
PACKING CO. V. WISCONSIN BOARD, 338 U.S. 953; AUTOMOBILE WORKERS V.
O'BRIEN, 339 U.S. 454. 

FN1  THE RELEVANT PARTS OF SEC. 11 OF ACT NO. 367, ARK. ACTS 1941,
PP. 947-949, ARE AS FOLLOWS: 

"(A) NO PERSON SHALL ENGAGE IN THE BUSINESS OF A CONTRACT CARRIER BY
MOTOR VEHICLE OVER ANY PUBLIC HIGHWAY IN THIS STATE UNLESS THERE IS IN
FORCE WITH RESPECT TO SUCH CARRIER A PERMIT ISSUED BY THE COMMISSION,
AUTHORIZING SUCH PERSONS TO ENGAGE IN SUCH BUSINESS  ...  . 

     *         *         *         *  * 

"(C)  SUBJECT TO THIS ACT A PERMIT SHALL BE ISSUED TO ANY QUALIFIED
APPLICANT THEREFOR AUTHORIZING IN WHOLE OR IN PART THE OPERATIONS
COVERED BY THE APPLICATION, IF IT APPEARS FROM THE APPLICATION OR FROM
ANY HEARING HELD THEREON, THAT THE APPLICANT IS FIT, WILLING, AND ABLE
TO PROPERLY PERFORM THE SERVICE OF A CONTRACT CARRIER BY MOTOR VEHICLE
AND TO CONFORM TO THE PROVISIONS OF THIS ACT, AND THE LAWFUL
REQUIREMENTS, RULES AND REGULATIONS OF THE COMMISSION, AND THE PROPOSED
OPERATION, TO THE EXTENT AUTHORIZED BY THE PERMIT, WILL PROMOTE THE
PUBLIC INTEREST AND THE POLICY DECLARED IN SECTION TWO (2) OF THIS ACT;
OTHERWISE SUCH APPLICATION SHALL BE DENIED  ...  . 

     *       *         *         *         * 

"(E)  IN GRANTING APPLICATIONS FOR PERMITS, THE COMMISSION SHALL TAKE
INTO CONSIDERATION THE RELIABILITY AND FINANCIAL CONDITION OF THE
APPLICANT AND HIS SENSE OF RESPONSIBILITY TOWARD THE PUBLIC; THE
TRANSPORTATION SERVICE BEING MAINTAINED BY ANY RAILROAD, STREET RAILWAY
OR MOTOR CARRIER; THE LIKELIHOOD OF THE PROPOSED SERVICE BEING
PERMANENT AND CONTINUOUS THROUGHOUT TWELVE MONTHS OF THE YEAR, AND THE
EFFECT WHICH SUCH PROPOSED TRANSPORTATION SERVICE MAY HAVE UPON
EXISTING TRANSPORTATION SERVICE; AND ANY OTHER MATTERS TENDING TO SHOW
THE NECESSITY OR WANT OF NECESSITY FOR GRANTING SAID APPLICATION. 

"(F)  THE COMMISSION SHALL SPECIFY IN THE PERMIT THE BUSINESS OF THE
CONTRACT CARRIER COVERED THEREBY AND THE SCOPE THEREOF AND SHALL ATTACH
TO IT, AT THE TIME OF ISSUANCE, AND FROM TIME TO TIME THEREAFTER, SUCH
REASONABLE TERMS, CONDITIONS, AND LIMITATIONS CONSISTENT WITH THE
CHARACTER OF THE HOLDER AS A CONTRACT CARRIER AS ARE NECESSARY TO CARRY
OUT, WITH RESPECT TO THE OPERATIONS OF SUCH CARRIER, THE REQUIREMENTS
ESTABLISHED BY THE COMMISSION UNDER THIS ACT; PROVIDED, HOWEVER, THAT
NO TERMS, CONDITIONS, OR LIMITATIONS SHALL RESTRICT THE RIGHT OF THE
CARRIER TO SUBSTITUTE OR ADD CONTRACTS WITHIN THE SCOPE OF THE PERMIT,
OR TO ADD TO HIS OR ITS EQUIPMENT FACILITIES, WITHIN THE SCOPE OF THE
PERMIT, AS THE DEVELOPMENT OF THE BUSINESS AND THE DEMANDS OF THE
PUBLIC MAY REQUIRE." 

FN2  SEC. 11, NOTE 1, SUPRA. 

FN3  COLUMBIA TERMINALS CO. V. LAMBERT, 30 F. SUPP. 28, WHOSE RULING
WE SUSTAINED, 309 U.S. 620, IS NOT IN POINT.  THE INTERSTATE COMMERCE
COMMISSION HAD RULED IN THAT CASE THAT THE PARTICULAR OPERATIONS THERE
INVOLVED WERE NOT COVERED BY THE FEDERAL ACT.  SEE 30 F. SUPP., AT 30. 

..END :









ALISON V. UNITED STATES 344 U.S. 167 


NO. 79.  ARGUED NOVEMBER 12, 1952 - DECIDED DECEMBER 8, 1952 - 97 F.
SUPP. 959, REVERSED; 98 F. SUPP. 252, AFFIRMED. 


COMPUTING NET INCOME FOR THE PURPOSE OF THE FEDERAL INCOME TAX, THERE
SHALL BE ALLOWED AS DEDUCTIONS "LOSSES SUSTAINED DURING THE TAXABLE
YEAR."  TREASURY REGULATIONS PROVIDE THAT "A LOSS FROM THEFT OR
EMBEZZLEMENT OCCURRING IN ONE YEAR AND DISCOVERED IN ANOTHER IS
ORDINARILY DEDUCTIBLE FOR THE YEAR IN WHICH SUSTAINED."  HELD:

1.  WHETHER AND WHEN A DEDUCTIBLE LOSS RESULTS FROM AN EMBEZZLEMENT
IS A FACTUAL QUESTION, A PRACTICAL ONE TO BE DECIDED ACCORDING TO
SURROUNDING CIRCUMSTANCES.  PP. 169-170. 

2.  UNDER THE SPECIAL FACTUAL CIRCUMSTANCES FOUND BY THE DISTRICT
COURTS IN THE TWO CASES HERE INVOLVED, THE TAXPAYERS WERE ENTITLED,
UNDER THE CODE PROVISIONS AND THE TREASURY REGULATIONS, TO DEDUCTIONS
FOR THE YEAR IN WHICH THE EMBEZZLEMENT LOSSES WERE DISCOVERED AND THEIR
AMOUNTS ASCERTAINED.  PP. 168-170. 

ALISON V. UNITED STATES. 

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT.* 

*TOGETHER WITH NO. 80, UNITED STATES V. STEVENSON-CHISLETT, INC.,
ALSO ON CERTIFICATE FROM THE SAME COURT. 

NO. 79.  IN AN ACTION FOR A REFUND OF INCOME TAXES, THE DISTRICT
COURT GAVE JUDGMENT AGAINST THE TAXPAYER.  97 F. SUPP. 959.  THE COURT
OF APPEALS CERTIFIED A QUESTION TO THIS COURT, WHICH ORDERED THE ENTIRE
RECORD SENT UP.  REVERSED, P. 170. 

NO. 80.  IN AN ACTION FOR A REFUND OF INCOME TAXES, THE DISTRICT
COURT GAVE JUDGMENT FOR THE TAXPAYER.  98 F. SUPP. 252.  THE COURT OF
APPEALS CERTIFIED A QUESTION TO THIS COURT, WHICH ORDERED THE ENTIRE
RECORD SENT UP.  AFFIRMED, P. 170. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS IN THESE TWO INCOME TAX CASES ARE SO MUCH ALIKE THAT
THEY CAN BE TREATED IN ONE OPINION.  BOTH TAXPAYERS HAD MONEYS
EMBEZZLED BY TRUSTED AGENTS AND EMPLOYEES.  AS USUAL, THE DEFALCATIONS
HAD BEEN GOING ON FOR MANY YEARS BEFORE THEY WERE DISCOVERED.  ON
DISCOVERY, EFFORTS WERE MADE IMMEDIATELY TO IDENTIFY THE TAKERS AND FIX
THE DATES AND AMOUNTS OF THE THEFTS.  IN THE ALISON CASE, NO. 79, THE
BOOKS REVEALED THE THIEF AND THE PRECISE AMOUNTS TAKEN EACH YEAR FROM
1931 TO 1940.  IN NO. 80, STEVENSON-CHISLETT, INC., THE COVER-UP HAD
BEEN SO SUCCESSFUL THAT PAINSTAKING INVESTIGATION FAILED TO REVEAL WHO
TOOK THE FUNDS OR THE TIME WHEN THE UNASCERTAINED PERSON OR PERSONS
TOOK THEM.  EACH TAXPAYER CLAIMED A TAX DEDUCTION FOR THE YEAR THE
LOSSES WERE DISCOVERED AND THEIR AMOUNTS ASCERTAINED.  THE GOVERNMENT
OBJECTED, CLAIMING THAT THE DEDUCTION SHOULD HAVE BEEN TAKEN IN EACH OF
THE PRIOR YEARS DURING WHICH THE MONEYS WERE BEING SURREPTITIOUSLY
TAKEN.  IN THE STEVENSON-CHISLETT CASE, THE DISTRICT COURT HELD THAT
THE UNCERTAIN CIRCUMSTANCES OF THE EMBEZZLEMENT ENTITLED THE TAXPAYER
TO TAKE ITS LOSSES THE YEAR THE LOSS WAS DISCOVERED AND THE AMOUNT
ASCERTAINED.  98 F. SUPP. 252.  THE DISTRICT JUDGE DECIDED THE OTHER
WAY IN THE ALISON CASE AND DENIED HER DECLARATIONS.  97 F. SUPP. 959. 
HIS HOLDING, HOWEVER, WAS NOT IN ACCORD WITH HIS OWN VIEWS, BUT WAS
COMPELLED, HE THOUGHT, BY THE THIRD CIRCUIT'S DECISION IN FIRST
NATIONAL BANK OF SHARON, PA. V. HEINER, 66 F.2D 925.  THE COURT OF
APPEALS FOR THE THIRD CIRCUIT CERTIFIED TO US THE QUESTION OF
DEDUCTIBILITY IN BOTH CASES.  PURSUANT TO 28 U.S.C. SEC. 1254(3), WE
ORDERED THE COMPLETE RECORDS SENT UP SO THAT WE MIGHT DECIDE THE ENTIRE
MATTERS IN CONTROVERSY. 

INTERNAL REVENUE CODE, SECS. 23(E) AND (F) AUTHORIZE DEDUCTIONS FOR "
... LOSSES SUSTAINED DURING THE TAXABLE YEAR  ...  ."  THE GOVERNMENT
READS THIS SECTION AS REQUIRING A TAXPAYER TO TAKE A DEDUCTION FOR LOSS
FROM EMBEZZLEMENT IN THE YEAR IN WHICH THE THEFT OCCURS, EVEN THOUGH
INABILITY TO DISCOVER IN TIME MIGHT COMPLETELY DEPRIVE THE TAXPAYER OF
THE BENEFIT OF THIS STATUTORY DEDUCTION.  ONLY AT THE TIME THE MONEY IS
STOLEN, SO IT IS ARGUED, IS A LOSS "SUSTAINED."  BUT TREASURY PRACTICE
ITSELF BELIES THIS RIGID CONSTRUCTION.  FOR MORE THAN THIRTY YEARS THE
REGULATIONS HAVE PROVIDED THAT "A LOSS FROM THEFT OR EMBEZZLEMENT
OCCURRING IN ONE YEAR AND DISCOVERED IN ANOTHER IS ORDINARILY
DEDUCTIBLE FOR THE YEAR IN WHICH SUSTAINED."  26 CFR SEC. 29.43-2. 
INFORMATION CONTAINED IN A LETTER FROM THE COMMISSIONER ATTACHED AS AN
APPENDIX TO THE GOVERNMENT'S BRIEF CITES MANY INSTANCES IN WHICH THE
TREASURY HAS ALLOWED DEDUCTIONS FOR EMBEZZLEMENT LOSSES IN YEARS
SUBSEQUENT TO THOSE IN WHICH THE THEFTS OCCURRED.  APPARENTLY THE
DEPARTMENT HAS FELT CONSTRAINED TO DO THIS IN ORDER TO PREVENT
HARDSHIPS AND INJUSTICE.  THESE HAVE BEEN DEPARTURES FROM THE
"ORDINARY" RULE OF ATTRIBUTING EMBEZZLEMENT LOSSES TO THE YEAR OF
THEFT. 

THIS TREASURY PRACTICE EVIDENTLY STEMS AT LEAST IN PART FROM THE
SPECIAL NATURE OF THE CRIME OF EMBEZZLEMENT.  ITS ESSENCE IS SECRECY. 
TAXPAYERS ARE USUALLY WELL AWARE OF ALL THE CIRCUMSTANCES OF FINANCIAL
LOSSES FOR WHICH TAX DEDUCTIONS ARE ALLOWED.  NOT SO WHEN A TRUSTED
ADVISER OR EMPLOYEE STEALS.  FOR YEARS HIS CRIME MAY BE KNOWN ONLY TO
HIMSELF.  HE MAY TAKE MONEY PLANNING TO RETURN IT AND HE MAY RETURN IT
BEFORE THERE IS DISCOVERY.  FURTHERMORE, THE TERMS EMBEZZLEMENT AND
LOSS ARE NOT SYNONYMOUS.  THE THEFT OCCURS, BUT WHETHER THERE IS A LOSS
MAY REMAIN UNCERTAIN.  ONE WHOSE FUNDS HAVE BEEN EMBEZZLED MAY PURSUE
THE WRONGDOER AND RECOVER HIS PROPERTY WHOLLY OR IN PART.  SEE
COMMISSIONER V. WILCOX, 327 U.S. 404.  EVENTS IN THE ALISON CASE SHOW
THE PRACTICAL VALUE OF THIS RIGHT OF RECOVERY.  A SUBSTANTIAL
PROPORTION OF THE EMBEZZLED FUNDS WAS RECOVERED IN 1941, TEN YEARS
AFTER THE FIRST EMBEZZLEMENT OCCURRED.  THIS RECOVERY ALONE IS AMPLE
REFUTATION OF THE VIEW THAT A LOSS IS INEVITABILY "SUSTAINED" AT THE
VERY TIME AN EMBEZZLEMENT IS COMMITTED. 

WHETHER AND WHEN A DEDUCTIBLE LOSS RESULTS FROM AN EMBEZZLEMENT IS A
FACTUAL QUESTION, A PRACTICAL ONE TO BE DECIDED ACCORDING TO
SURROUNDING CIRCUMSTANCES.  SEE BOEHM V. COMMISSIONER, 326 U.S. 287. 
AN INFLEXIBLE RULE IS NOT NEEDED; THE STATUTE DOES NOT COMPEL IT.  FOR
YEARS THE TREASURY HAS ADMINISTERED THE TAX LAW UNDER REGULATIONS
SAYING THAT DEDUCTIONS SHALL "ORDINARILY" BE TAKEN IN THE YEAR OF
EMBEZZLEMENT.  ORDINARILY DOES NOT MEAN ALWAYS. 

WE HOLD THAT THE SPECIAL FACTUAL CIRCUMSTANCES FOUND BY THE DISTRICT
COURTS IN BOTH THESE CASES JUSTIFY DEDUCTIONS UNDER I.R.C., SECS. 23(E)
AND (F) AND THE LONG-STANDING TREASURY REGULATIONS APPLICABLE TO
EMBEZZLEMENT LOSSES.  SEE BOSTON CONSOLIDATED GAS CO. V. COMMISSIONER,
128 F.2D 473; GWINN BROS. & CO. V. COMMISSIONER, 7 T.C. 320. 
ACCORDINGLY, THE JUDGMENT IN NO. 79 IS REVERSED AND THE JUDGMENT IN NO.
80 IS AFFIRMED.  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BURTON DISSENT. 
..END :
















BAILESS V. PAUKUNE 344 U.S. 171 


NO. 242.  SUBMITTED NOVEMBER 10, 1952 - DECIDED DEC. 8, 1952 - 206 OKLA.
527, 244 P.2D 1137, REVERSED AND REMANDED. 


UNDER THE GENERAL ALLOTMENT ACT OF FEBRUARY 8, 1887, A TRUST PATENT TO
LAND IN OKLAHOMA WAS ISSUED TO AN APACHE INDIAN.  HE DIED, LEAVING A
WILL DEVISING AN UNDIVIDED INTEREST IN THE ALLOTMENT TO HIS WIDOW.  NO
FEE PATENT HAD BEEN ISSUED AND THE TRUST PERIOD HAD NOT EXPIRED.  HELD:
IF THE WIDOW IS NOT AN INDIAN, HER INTEREST IS SUBJECT TO STATE
TAXATION.  PP. 171-173. 

BAILESS, COUNTY TREASURER, ET AL. V. PAUKUNE. 

CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. 

RESPONDENT SUED IN AN OKLAHOMA STATE COURT TO ENJOIN STATE TAXATION
OF HER UNDIVIDED INTEREST IN A TRUST PATENT FOR LAND ISSUED TO HER
DECEASED INDIAN HUSBAND.  WITHOUT DETERMINING WHETHER THE WIDOW WAS AN
INDIAN, THE TRIAL COURT HELD THAT THE INTEREST WAS NOT TAXABLE, AND THE
SUPREME COURT OF OKLAHOMA AFFIRMED.  206 OKLA. 527, 244 P.2D 1137. 
THIS COURT GRANTED CERTIORARI.  344 U.S. 812.  REVERSED AND REMANDED,
P. 173. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1901 AN APACHE INDIAN, PAUKUNE, WAS ISSUED A TRUST PATENT TO LAND
IN CADDO COUNTY, OKLAHOMA.  THIS ALLOTMENT WAS MADE UNDER THE GENERAL
ALLOTMENT ACT OF FEBRUARY 8, 1887, 24 STAT. 388, 389.  (FN1)  PAUKUNE
DIED TESTATE IN 1919, LEAVING A WIFE JUANA AND A SON JOSE.  BY HIS WILL
HE DEVISED AN UNDIVIDED ONE-THIRD INTEREST IN THE ALLOTMENT TO HIS
WIDOW AND AN UNDIVIDED TWO-THIRDS INTEREST TO HIS SON.  NO FEE PATENT
TO THE LAND HAS ISSUED TO PAUKUNE, TO HIS WIDOW, OR TO THE SON.  THE
TRUST PERIOD OF TWENTY-FIVE YEARS HAS FROM TIME TO TIME BEEN EXTENDED. 
IN OTHER WORDS, THE UNITED STATES STILL HOLDS THE LAND IN TRUST FOR
PAUKUNE AND HIS HEIRS. 

IN 1947 JUANA'S UNDIVIDED ONE-THIRD INTEREST WAS ASSESSED FOR AD
VALOREM TAXES IN THE AMOUNT OF $21.33 AND WAS ADVERTISED FOR SALE FOR
FAILURE TO PAY.  SHE THEREUPON INSTITUTED THIS SUIT IN THE OKLAHOMA
COURTS TO ENJOIN THE SALE AND ANY FURTHER LEVY OF AD VALOREM TAXES ON
THE THEORY THAT THE LAND WAS EXEMPT FROM STATE TAXATION.  THE
PETITIONERS ANSWERED, ALLEGING THAT JUANA WAS A NON-INDIAN AND
THEREFORE NOT EXEMPT FROM THE TAXES.  THE TRIAL COURT, WITHOUT
DETERMINING WHETHER THE WIDOW WAS AN INDIAN, HELD HER INTEREST
NONTAXABLE BY THE STATE; AND THE SUPREME COURT OF OKLAHOMA AFFIRMED,
206 OKLA. 527, 244 P.2D 1137, SAYING IT MATTERED NOT UNDER FEDERAL LAW
WHETHER THE WIDOW WAS INDIAN OR NON-INDIAN.  THE CASE IS HERE ON
CERTIORARI.  344 U.S. 812. 

LEVINDALE LEAD CO. V. COLEMAN, 241 U.S. 432, DEALT WITH RESTRICTIONS
ON ALIENATION ATTACHED TO LAND UNDER THE OSAGE INDIAN ALLOTMENT ACT OF
JUNE 28, 1906, 34 STAT. 539.  THE COURT HELD THAT THE POLICY OF THAT
ACT DID NOT EMBRACE PERSONS WHO WERE NOT INDIANS, SINCE THE CONGRESS
SOUGHT TO PROTECT ONLY THOSE TOWARD WHOM IT OWED THE DUTIES OF A
GUARDIAN.  THE SAME ANSWER MUST BE GIVEN HERE.  IF JUANA IS NOT AN
INDIAN, THE UNITED STATES HAS NO INTEREST OF HERS IN THE LAND TO
PROTECT.  (FN2)  TRUE, THE UNITED STATES HOLDS THE LEGAL TITLE TO THE
LAND.  BUT NOTHING IN THE ACT PREVENTS THE DEVOLUTION OF THE EQUITABLE
INTEREST TO THE WIDOW.  IF SHE IS NOT WITHIN THE CLASS WHOM CONGRESS
SOUGHT TO PROTECT, THE TRUST IS A DRY AND PASSIVE ONE; THERE REMAINS
ONLY A MINISTERIAL ACT FOR THE TRUSTEE TO PERFORM, NAMELY THE ISSUANCE
OF A FEE PATENT TO THE CESTUI. 

THE JUDGMENT OF THE SUPREME COURT OF OKLAHOMA IS REVERSED AND THE
CAUSE IS REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  SO ORDERED. 

FN1  SECTION 5 OF THE ACT PROVIDES IN PART AS FOLLOWS:  "THAT UPON
THE APPROVAL OF THE ALLOTMENTS PROVIDED FOR IN THIS ACT BY THE
SECRETARY OF THE INTERIOR, HE SHALL CAUSE PATENTS TO ISSUE THEREFOR IN
THE NAME OF THE ALLOTTEES, WHICH PATENTS SHALL BE OF THE LEGAL EFFECT,
AND DECLARE THAT THE UNITED STATES DOES AND WILL HOLD THE LAND THUS
ALLOTTED, FOR THE PERIOD OF TWENTY-FIVE YEARS, IN TRUST FOR THE SOLE
USE AND BENEFIT OF THE INDIAN TO WHOM SUCH ALLOTMENT SHALL HAVE BEEN
MADE, OR, IN CASE OF HIS DECEASE, OF HIS HEIRS ACCORDING TO THE LAWS OF
THE STATE OR TERRITORY WHERE SUCH LAND IS LOCATED, AND THAT AT THE
EXPIRATION OF SAID PERIOD THE UNITED STATES WILL CONVEY THE SAME BY
PATENT TO SAID INDIAN, OR HIS HEIRS AS AFORESAID, IN FEE, DISCHARGED OF
SAID TRUST AND FREE OF ALL CHARGE OR INCUMBRANCE WHATSOEVER:  PROVIDED,
THAT THE PRESIDENT OF THE UNITED STATES MAY IN ANY CASE IN HIS
DISCRETION EXTEND THE PERIOD.  AND IF ANY CONVEYANCE SHALL BE MADE OF
THE LANDS SET APART AND ALLOTTED AS HEREIN PROVIDED, OR ANY CONTRACT
MADE TOUCHING THE SAME, BEFORE THE EXPIRATION OF THE TIME ABOVE
MENTIONED, SUCH CONVEYANCE OR CONTRACT SHALL BE ABSOLUTELY NULL AND
VOID:  PROVIDED, THAT THE LAW OF DESCENT AND PARTITION IN FORCE IN THE
STATE OR TERRITORY WHERE SUCH LANDS ARE SITUATE SHALL APPLY THERETO
AFTER PATENTS THEREFOR HAVE BEEN EXECUTED AND DELIVERED, EXCEPT AS
HEREIN OTHERWISE PROVIDED  ...  ." 

FN2  AND SEE MIXON V. LITTLETON, 265 F. 603; UNKLE V. WILLS, 281 F.
29, 35. 
..END :



UNITED STATES V. CARDIFF 344 U.S. 174 


NO. 27.  ARGUED NOVEMBER 17, 1952 - DECIDED DECEMBER 8, 1952 - 194 F.2D
686, AFFIRMED. 


IT IS NOT AN OFFENSE UNDER SECS. 301(F) AND 704 OF THE FEDERAL FOOD,
DRUG, AND COSMETIC ACT FOR THE PRESIDENT OF A CORPORATION OPERATING A
FACTORY ENGAGED IN PACKING AND PREPARING FOOD FOR INTERSTATE
DISTRIBUTION TO REFUSE TO GRANT PERMISSION FOR INSPECTORS OF THE FOOD
AND DRUG ADMINISTRATION TO ENTER AND INSPECT THE FACTORY AT REASONABLE
TIMES.  PP. 174-177. 

UNITED STATES V. CARDIFF. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

RESPONDENT WAS CONVICTED OF A VIOLATION OF SEC. 301(F) OF THE FEDERAL
FOOD, DRUG, AND COSMETIC ACT.  95 F. SUPP. 206.  THE COURT OF APPEALS
REVERSED.  194 F.2D 686.  THIS COURT GRANTED CERTIORARI.  343 U.S.
940.  AFFIRMED, P. 177. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT WAS CONVICTED OF VIOLATING SEC. 301(F) OF THE FEDERAL
FOOD, DRUG, AND COSMETIC ACT, 52 STAT. 1040, 21 U.S.C. SEC. 331(F). 
THAT SECTION PROHIBITS "THE REFUSAL TO PERMIT ENTRY OR INSPECTION AS
AUTHORIZED BY SECTION 704."  (FN1)  SECTION 704 AUTHORIZES THE FEDERAL
OFFICERS OR EMPLOYEES "AFTER FIRST MAKING REQUEST AND OBTAINING
PERMISSION OF THE OWNER, OPERATOR, OR CUSTODIAN" OF THE PLANT OR
FACTORY "TO ENTER" AND "TO INSPECT" THE ESTABLISHMENT, EQUIPMENT,
MATERIALS AND THE LIKE "AT REASONABLE TIMES."  (FN2) 

RESPONDENT IS PRESIDENT OF A CORPORATION WHICH PROCESSES APPLES AT
YAKIMA, WASHINGTON, FOR SHIPMENT IN INTERSTATE COMMERCE.  AUTHORIZED
AGENTS APPLIED TO RESPONDENT FOR PERMISSION TO ENTER AND INSPECT HIS
FACTORY AT REASONABLE HOURS.  HE REFUSED PERMISSION, AND IT WAS THAT
REFUSAL WHICH WAS THE BASIS OF THE INFORMATION FILED AGAINST HIM AND
UNDER WHICH HE WAS CONVICTED AND FINED.  95 F. SUPP. 206.  THE COURT OF
APPEALS REVERSED, HOLDING THAT SEC. 301(F), WHEN READ WITH SEC. 704,
PROHIBITS A REFUSAL TO PERMIT ENTRY AND INSPECTION ONLY IF SUCH
PERMISSION HAS PREVIOUSLY BEEN GRANTED.  194 F.2D 686.  THE CASE IS
HERE ON CERTIORARI.  343 U.S. 940. 

THE DEPARTMENT OF JUSTICE URGES US TO READ SEC. 301(F) AS PROHIBITING
A REFUSAL TO PERMIT ENTRY OR INSPECTION AT ANY REASONABLE TIME.  IT
ARGUES THAT THAT CONSTRUCTION IS NEEDED IF THE ACT IS TO HAVE REAL
SANCTIONS AND IF THE BENIGN PURPOSES OF THE ACT ARE TO BE REALIZED.  IT
POINTS OUT THAT FACTORY INSPECTION HAS BECOME THE PRIMARY INVESTIGATIVE
DEVICE FOR ENFORCEMENT OF THIS LAW, THAT IT IS FROM FACTORY INSPECTIONS
THAT ABOUT 80 PERCENT OF THE VIOLATIONS ARE DISCOVERED, THAT THE SMALL
FORCE OF INSPECTORS MAKES FACTORY INSPECTION, RATHER THAN RANDOM
SAMPLING OF FINISHED GOODS, THE ONLY EFFECTIVE METHOD OF ENFORCING THE
ACT. 

ALL THAT THE DEPARTMENT SAYS MAY BE TRUE.  BUT IT DOES NOT ENABLE US
TO MAKE SENSE OUT OF THE STATUTE.  NOWHERE DOES THE ACT SAY THAT A
FACTORY MANAGER MUST ALLOW ENTRY AND INSPECTION AT A REASONABLE HOUR. 
AND OBTAINING PERMISSION."  IT IS THAT ENTRY AND INSPECTION WHICH SEC.
301(F) BACKS WITH A SANCTION.  IT WOULD SEEM THEREFORE ON THE FACE OF
THE STATUTE THAT THE ACT PROHIBITS THE REFUSAL TO PERMIT INSPECTION
ONLY IF PERMISSION HAS BEEN PREVIOUSLY GRANTED.  UNDER THAT VIEW THE
ACT MAKES ILLEGAL THE REVOCATION OF PERMISSION ONCE GIVEN, NOT THE
FAILURE TO GIVE PERMISSION.  BUT THAT VIEW WOULD BREED A HOST OF
PROBLEMS.  WOULD REVOCATION OF PERMISSION ONCE GIVEN CARRY THE CRIMINAL
PENALTY NO MATTER HOW LONG AGO IT WAS GRANTED AND NO MATTER IF IT HAD
NO RELATION TO THE INSPECTION DEMANDED?  OR MUST THE PERMISSION GRANTED
AND REVOKED RELATE TO THE DEMAND FOR INSPECTION ON WHICH THE
PROSECUTION IS BASED?  THOSE UNCERTAINTIES MAKE THAT CONSTRUCTION
PREGNANT WITH DANGER FOR THE REGULATED BUSINESS.  THE ALTERNATIVE
CONSTRUCTION PRESSED ON US IS EQUALLY TREACHEROUS BECAUSE IT GIVES
CONFLICTING COMMANDS.  IT MAKES INSPECTION DEPENDENT ON CONSENT AND
MAKES REFUSAL TO ALLOW INSPECTION A CRIME.  HOWEVER WE READ SEC. 301(F)
WE THINK IT IS NOT FAIR WARNING (CF. UNITED STATES V. WEITZEL, 246 U.S.
533; MCBOYLE V. UNITED STATES, 283 U.S. 25) TO THE FACTORY MANAGER THAT
IF HE FAILS TO GIVE CONSENT, HE IS A CRIMINAL.  THE VICE OF VAGUENESS
IN CRIMINAL STATUTES IS THE TREACHERY THEY CONCEAL EITHER IN
DETERMINING WHAT PERSONS ARE INCLUDED OR WHAT ACTS ARE PROHIBITED. 
WORDS WHICH ARE VAGUE AND FLUID (CF. UNITED STATES V. COHEN GROCERY
CO., 255 U.S. 81) MAY BE AS MUCH OF A TRAP FOR THE INNOCENT AS THE
ANCIENT LAWS OF CALIGULA.  WE CANNOT SANCTION TAKING A MAN BY THE HEELS
FOR REFUSING TO GRANT THE PERMISSION WHICH THIS ACT ON ITS FACE
APPARENTLY GAVE HIM THE RIGHT TO WITHHOLD.  THAT WOULD BE MAKING AN ACT
CRIMINAL WITHOUT FAIR AND EFFECTIVE NOTICE.  CF. HERNDON V. LOWRY, 301
U.S. 242.  AFFIRMED. 

FN1  THE VIOLATION IS MADE A MISDEMEANOR BY 21 U.S.C. SEC. 333. 

FN2  SECTION 704 READS AS FOLLOWS:  "FOR PURPOSES OF ENFORCEMENT OF
THIS ACT, OFFICERS OR EMPLOYEES DULY DESIGNATED BY THE ADMINISTRATOR,
AFTER FIRST MAKING REQUEST AND OBTAINING PERMISSION OF THE OWNER,
OPERATOR, OR CUSTODIAN THEREOF, ARE AUTHORIZED (1) TO ENTER, AT
REASONABLE TIMES, ANY FACTORY, WAREHOUSE, OR ESTABLISHMENT IN WHICH
FOOD, DRUGS, DEVICES, OR COSMETICS ARE MANUFACTURED, PROCESSED, PACKED,
OR HELD, FOR INTRODUCTION INTO INTERSTATE COMMERCE OR ARE HELD AFTER
SUCH INTRODUCTION, OR TO ENTER ANY VEHICLE BEING USED TO TRANSPORT OR
HOLD SUCH FOOD, DRUGS, DEVICES, OR COSMETICS IN INTERSTATE COMMERCE;
AND (2) TO INSPECT, AT REASONABLE TIMES, SUCH FACTORY, WAREHOUSE,
ESTABLISHMENT, OR VEHICLE AND ALL PERTINENT EQUIPMENT, FINISHED AND
UNFINISHED MATERIALS, CONTAINERS, AND LABELING THEREIN." 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE BURTON DISSENTS. 
..END :












MONTGOMERY BUILDING & CONSTRUCTION TRADES COUNCIL V. LEDBETTER ERECTION
CO., INC. 344 U.S. 178 


NO. 43.  ARGUED NOVEMBER 13, 1952 - DECIDED DECEMBER 8, 1952 - WRIT OF
CERTIORARI DISMISSED. 


RESPONDENT FILED A BILL IN EQUITY IN AN ALABAMA STATE COURT TO ENJOIN
CERTAIN PICKETING ACTIVITIES, WHOLLY PEACEFUL, CARRIED ON BY PETITIONER
LABOR ORGANIZATIONS.  THE COURT FORTHWITH ISSUED A TEMPORARY
INJUNCTION.  SUBSEQUENTLY A MOTION BY PETITIONERS TO DISSOLVE THE
TEMPORARY INJUNCTION WAS DENIED BY THE TRIAL COURT, AND ITS ORDER WAS
AFFIRMED BY THE STATE SUPREME COURT.  HELD:  THE JUDGMENT OF THE STATE
SUPREME COURT WAS NOT A "FINAL" JUDGMENT WITHIN THE MEANING OF 28
U.S.C. SEC. 1257, AND THEREFORE WAS NOT REVIEWABLE BY THIS COURT.  PP.
179-181. 

(A) THE FACT THAT AS LONG AS A TEMPORARY INJUNCTION IS IN FORCE IT
MAY BE AS EFFECTIVE AS A PERMANENT INJUNCTION, AND THAT APPEALS FROM
INTERLOCUTORY JUDGMENTS HAVE FOR THAT REASON BEEN AUTHORIZED BY STATE
LEGISLATURES AND IN SOME CIRCUMSTANCES BY CONGRESS, DOES NOT GIVE
INTERLOCUTORY JUDGMENTS THE ASPECT OF FINALITY REQUIRED BY 28 U.S.C.
SEC. 1257.  PP. 180-181. 

(B)  SINCE THERE WAS NO FINAL JUDGMENT OF THE STATE SUPREME COURT
REVIEWABLE HERE, THE WRIT OF CERTIORARI WHICH WAS GRANTED IN THIS CASE
IS DISMISSED AS IMPROVIDENTLY GRANTED.  P. 181. 

MONTGOMERY BUILDING & CONSTRUCTION TRADES COUNCIL ET AL. V. LEDBETTER
ERECTION CO., INC. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

AN ORDER OF AN ALABAMA STATE COURT DENYING PETITIONERS' MOTION TO
DISSOLVE A TEMPORARY INJUNCTION AGAINST CERTAIN PICKETING ACTIVITIES OF
PETITIONERS, WAS AFFIRMED BY THE STATE SUPREME COURT.  256 ALA. 678, 57
SO. 2D 112, REHEARING DENIED, 256 ALA. 689, 57 SO. 2D 121.  THIS COURT
GRANTED CERTIORARI.  343 U.S. 962.  WRIT DISMISSED AS IMPROVIDENTLY
GRANTED, P. 181. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT FILED A BILL IN EQUITY IN THE CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA, TO ENJOIN CERTAIN PICKETING ACTIVITIES,
WHOLLY PEACEFUL, CARRIED ON BY THE PETITIONERS, LABOR ORGANIZATIONS. 
UPON THE SWORN BILL AND WITHOUT NOTICE, THE COURT ISSUED FORTHWITH A
"TEMPORARY WRIT OF INJUNCTION."  THE PETITIONERS APPEARED AND FILED AN
ANSWER AND A MOTION TO DISSOLVE THE INJUNCTION ON NUMEROUS GROUNDS. 
SUBSEQUENTLY, THE PETITIONERS WITHDREW THEIR ANSWER AND MOST OF THE
GROUNDS ASSIGNED FOR DISSOLUTION OF THE INJUNCTION AND FILED NEW
GROUNDS THEREFOR.  THE MOTION TO DISSOLVE WAS DENIED, AND FROM THIS
ORDER OF THE COURT THE PETITIONERS APPEALED TO THE SUPREME COURT OF
ALABAMA, WHICH AFFIRMED THE ORDER OF THE TRIAL COURT.  256 ALA. 678, 57
SO. 2D 112, REHEARING DENIED, 256 ALA. 689, 57 SO. 2D 121.  CERTIORARI
WAS SOUGHT HERE AND GRANTED, 343 U.S. 962. 

AT THE VERY THRESHOLD, WE ARE PRESENTED WITH A QUESTION OF
JURISDICTION.  THIS COURT MAY GRANT CERTIORARI FROM A JUDGMENT OR
DECREE OF THE SUPREME COURT OF ALABAMA, THE HIGHEST COURT IN THE STATE,
ONLY IF THE JUDGMENT OR DECREE IS FINAL.  28 U.S.C. SEC. 1257.  WAS
THIS A FINAL JUDGMENT OR DECREE? 

FROM THE EARLIEST DAYS, THIS COURT HAS REFUSED TO ACCEPT JURISDICTION
OF INTERLOCUTORY DECREES, SUCH AS IS INVOLVED IN THIS CASE.  IN GIBBONS
V. OGDEN, 6 WHEAT.  448, THE FIRST CASE PRESENTING THIS ISSUE TO THIS
COURT, AN INJUNCTION HAD BEEN GRANTED BY A CHANCERY COURT OF THE STATE
OF NEW YORK.  THE DEFENDANT ANSWERED AND MOVED TO DISSOLVE THE
INJUNCTION.  THE COURT DENIED THE MOTION TO DISSOLVE, AND THE DEFENDANT
APPEALED TO THE COURT FOR THE TRIAL OF IMPEACHMENTS AND CORRECTION OF
ERRORS WHICH AFFIRMED.  THE APPEAL TO THIS COURT WAS DISMISSED BECAUSE
THERE WAS NO FINAL DECREE IN THE COURT OF LAST RESORT FOR THIS COURT TO
REVIEW. 

THE PROVISION OF SEC. 1257 THAT ONLY "FINAL JUDGMENTS OR DECREES
RENDERED BY THE HIGHEST COURT OF A STATE IN WHICH A DECISION COULD BE
HAD, MAY BE REVIEWED BY THE SUPREME COURT  ...  " HAS BEEN CARRIED IN
ALMOST IDENTICAL LANGUAGE SINCE THE JUDICIARY ACT OF 1789, 1 STAT. 85,
SEC. 25. 

"THIS REQUIREMENT IS NOT ONE OF THOSE TECHNICALITIES TO BE EASILY
SCORNED.  IT IS AN IMPORTANT FACTOR IN THE SMOOTH WORKING OF OUR
FEDERAL SYSTEM."  RADIO STATION WOW V. JOHNSON, 326 U.S. 120, 124. 

THE DISTINCTION BETWEEN A PRELIMINARY OR TEMPORARY INJUNCTION AND A
FINAL OR PERMANENT INJUNCTION WAS ELEMENTARY IN THE LAW OF EQUITY.  THE
CLASSICAL CONCEPT WAS AT ONCE RECOGNIZED AND APPLIED IN GIBBONS V.
OGDEN, SUPRA.  THERE IS NO ROOM HERE FOR INTERPRETATION.  THE RULE
REMAINS UNCHANGED. 

TRUE, AS LONG AS A TEMPORARY INJUNCTION IS IN FORCE IT MAY BE AS
EFFECTIVE AS A PERMANENT INJUNCTION, AND FOR THAT REASON APPEALS FROM
INTERLOCUTORY JUDGMENTS HAVE BEEN AUTHORIZED BY STATE LEGISLATURES AND
CONGRESS.  BUT SUCH AUTHORIZATION DOES NOT GIVE INTERLOCUTORY JUDGMENTS
THE ASPECT OF FINALITY HERE, EVEN THOUGH WE MAY HAVE INADVERTENTLY
GRANTED CERTIORARI.  BALDWIN CO. V. HOWARD CO., 256 U.S. 35, 40. 

IT IS ARGUED THAT IF THIS IS NOT HELD TO BE A FINAL DECREE OR
JUDGMENT AND DECIDED NOW, IT MAY NEVER BE DECIDED, BECAUSE TO AWAIT THE
OUTCOME OF THE FINAL HEARING IS TO MOOT THE QUESTION AND TO FRUSTRATE
THE PICKETING.  HOWEVER APPEALING SUCH ARGUMENT MAY BE, IT DOES NOT
WARRANT US IN ENLARGING OUR JURISDICTION.  ONLY CONGRESS MAY DO THAT. 
FURTHERMORE, THE INTERLOCUTORY DECREE COULD HAVE BEEN READILY CONVERTED
INTO A FINAL DECREE, AND THE APPEAL COULD HAVE PROCEEDED WITHOUT
QUESTION AS TO JURISDICTION JUST AS EFFECTIVELY AND EXPEDITIOUSLY AS
THE APPEAL FROM THE INTERLOCUTORY INJUNCTION WAS PURSUED IN THIS CASE. 

SINCE THERE WAS NO FINAL JUDGMENT OF THE SUPREME COURT OF ALABAMA FOR
REVIEW, THE WRIT OF CERTIORARI MUST BE DISMISSED AS IMPROVIDENTLY
GRANTED.  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE QUESTION PRESENTED IS THE POWER OF THE STATE COURT TO ISSUE A
TEMPORARY INJUNCTION IN THIS KIND OF LABOR DISPUTE.  IF PETITIONERS HAD
SOUGHT MANDAMUS OR ANOTHER APPROPRIATE STATE WRIT DIRECTED AGAINST THE
JUDGE WHO ISSUED THE TEMPORARY INJUNCTION, I SHOULD HAVE NO DOUBT THAT
IT WOULD BE A FINAL JUDGMENT WHICH WE WOULD REVIEW.  SEE BANDINI CO. V.
SUPERIOR COURT, 284 U.S. 8, 14.  CF. RESCUE ARMY V. MUNICIPAL COURT,
331 U.S. 549, 565.  I SEE NO DIFFERENCE OF SUBSTANCE BETWEEN THAT CASE
AND THIS.  THE MISCHIEF OF TEMPORARY INJUNCTIONS IN LABOR CONTROVERSIES
IS WELL KNOWN.  IT IS DONE WHEN THE INTERLOCUTORY ORDER IS ISSUED.  THE
DAMAGE IS OFTEN IRREPARABLE.  THE ASSERTION BY THE STATE COURT OF POWER
TO ACT IN AN INTERLOCUTORY WAY IS FINAL.  WHETHER IT HAS THAT POWER MAY
BE DETERMINED WITHOUT REFERENCE TO ANY FUTURE PROCEEDINGS WHICH MAY BE
TAKEN.  UNLESS THE RULE OF FINALITY IS TO BE PURELY MECHANICAL, WHICH
TO DATE IT HAS NOT BEEN (SEE RADIO STATION WOW V. JOHNSON, 326 U.S.
120, 124), WE SHOULD DETERMINE NOW WHETHER THE NATIONAL LABOR RELATIONS
ACT PERMITS A STATE COURT TO INTERFERE WITH A LABOR CONTROVERSY IN A
WAY, WHICH THOUGH INTERIM IN FORM, IRRETRIEVABLY ALTERS THE STATUS OF
THE DISPUTE OR IN FACT SETTLES IT.* 

*THIS "PRACTICAL" RATHER THAN "TECHNICAL" CONSTRUCTION IS AS
NECESSARY HERE AS IT IS IN CASES INVOLVING APPEALS FROM "FINAL
DECISIONS" IN THE FEDERAL SYSTEM.  SEE COHEN V. BENEFICIAL LOAN CORP.,
337 U.S. 541, 545-546. 
..END :




KEDROFF V. SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHODOX CHURCH IN
NORTH AMERICA 344 U.S. 94 


NO. 3.  ARGUED FEBRUARY 1, 1952.  - REARGUED OCTOBER 14, 1952.  -
DECIDED NOVEMBER 24, 1952.  - 302 N.Y. 1, 33, 96 N.E.2D 56, 74,
REVERSED AND REMANDED. 


IN A SUIT BROUGHT IN A NEW YORK STATE COURT BY A CORPORATION, HOLDER
OF THE LEGAL TITLE, TO DETERMINE WHICH PRELATE WAS ENTITLED TO THE USE
AND OCCUPANCY OF A CATHEDRAL OF THE RUSSIAN ORTHODOX CHURCH IN NEW YORK
CITY, THE COURT OF APPEALS OF NEW YORK HELD FOR PLAINTIFF, ON THE
GROUND THAT ARTICLE 5-C OF THE RELIGIOUS CORPORATIONS LAW OF NEW YORK
HAD THE PURPOSE AND EFFECT OF TRANSFERRING THE ADMINISTRATIVE CONTROL
OF THE RUSSIAN ORTHODOX CHURCHES IN NORTH AMERICA FROM THE SUPREME
CHURCH AUTHORITY IN MOSCOW TO THE AUTHORITIES SELECTED BY A CONVENTION
OF THE NORTH AMERICAN CHURCHES.  HELD:  AS THUS CONSTRUED AND APPLIED,
THE NEW YORK STATUTE INTERFERES WITH THE FREE EXERCISE OF RELIGION,
CONTRARY TO THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH AMENDMENT.  PP. 95-121. 

(A)  LEGISLATION WHICH DETERMINES, IN AN HIERARCHICAL CHURCH,
ECCLESIASTICAL ADMINISTRATION OR THE APPOINTMENT OF THE CLERGY, OR
TRANSFERS CONTROL OF CHURCHES FROM ONE GROUP TO ANOTHER, INTERFERES
WITH THE FREE EXERCISE OF RELIGION CONTRARY TO THE CONSTITUTION.  PP.
106-116, 119. 

(B)  THAT THE PURPOSE OF SUCH LEGISLATION IS TO PROTECT AMERICAN
CHURCHES FROM INFILTRATION OF ATHEISTIC OR SUBVERSIVE INFLUENCES DOES
NOT REQUIRE A DIFFERENT RESULT, THOUGH LEGISLATIVE POWER TO PUNISH
SUBVERSIVE ACTION CANNOT BE DOUBTED AND NEITHER HIS ROBE NOR HIS PULPIT
WOULD BE A DEFENSE TO A CLERIC ATTEMPTING SUBVERSIVE ACTIONS.  PP. 108
110, 117-121. 

(C)  AMERICAN COMMUNICATIONS ASSOCIATION V. DOUDS, 339 U.S. 382; AND
LATE CORPORATION OF LATTER-DAY SAINTS V. UNITED STATES, 136 U.S. 1,
DISTINGUISHED.  PP. 117-121. 

(D)  FREEDOM TO SELECT THE CLERGY, WHERE NO IMPROPER METHODS OF
CHOICE ARE PROVEN, MUST NOW BE SAID TO HAVE FEDERAL CONSTITUTIONAL
PROTECTION AGAINST STATE INTERFERENCE, AS A PART OF THE FREE EXERCISE
OF RELIGION.  PP. 115-116. 

(E)  EVEN IN THOSE CASES WHEN PROPERTY RIGHTS FOLLOW AS INCIDENTS
FROM DECISIONS OF THE CHURCH CUSTOM OR LAW ON ECCLESIASTICAL ISSUES,
THE CHURCH RULE CONTROLS AND MUST BE ACCEPTED BY THE CIVIL COURTS. 
WATSON V. JONES, 13 WALL.  679.  PP. 115-116, 120-121. 

KEDROFF ET AL. V. SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHODOX
CHURCH IN NORTH AMERICA. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

IN AN ACTION BROUGHT IN A STATE COURT BY APPELLEE, A NEW YORK
CORPORATION, TO DETERMINE THE RIGHT TO THE USE AND OCCUPANCY OF A
CHURCH IN NEW YORK CITY, THE TRIAL COURT GAVE JUDGMENT IN FAVOR OF THE
DEFENDANTS, APPELLANTS HERE.  192 MISC. 327, 77 N.Y.S.2D 333.  THE
APPELLATE DIVISION OF THE STATE SUPREME COURT AFFIRMED.  276 APP. DIV.
309, 94 N.Y.S.2D 453.  THE COURT OF APPEALS REVERSED.  302 N.Y. 1, 33,
96 N.E.2D 56, 74.  ON APPEAL TO THIS COURT, REVERSED AND REMANDED, P.
121. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE RIGHT TO THE USE AND OCCUPANCY OF A CHURCH IN THE CITY OF NEW
YORK IS IN DISPUTE. 

THE RIGHT TO SUCH USE IS CLAIMED BY APPELLEE, A CORPORATION CREATED
IN 1925 BY AN ACT OF THE LEGISLATURE OF NEW YORK, LAWS OF NEW YORK
1925, C. 463, FOR THE PURPOSE OF ACQUIRING A CATHEDRAL FOR THE RUSSIAN
ORTHODOX CHURCH IN NORTH AMERICA AS A CENTRAL PLACE OF WORSHIP AND
RESIDENCE OF THE RULING ARCHBISHOP "IN ACCORDANCE WITH THE DOCTRINE,
DISCIPLINE AND WORSHIP OF THE HOLY APOSTOLIC CATHOLIC CHURCH OF EASTERN
CONFESSION AS TAUGHT BY THE HOLY SCRIPTURES, HOLY TRADITION, SEVEN
OECUMENICAL COUNCILS AND HOLY FATHERS OF THAT CHURCH." 

THE CORPORATE RIGHT IS SOUGHT TO BE ENFORCED SO THAT THE HEAD OF THE
AMERICAN CHURCHES, RELIGIOUSLY AFFILIATED WITH THE RUSSIAN ORTHODOX
CHURCH, MAY OCCUPY THE CATHEDRAL.  AT THE PRESENT TIME THAT HEAD IS THE
METROPOLITAN OF ALL AMERICA AND CANADA, THE ARCHBISHOP OF NEW YORK,
LEONTY, WHO LIKE HIS PREDECESSORS WAS ELECTED TO HIS ECCLESIASTICAL
OFFICE BY A SOBOR OF THE AMERICAN CHURCHES.  (FN1) 

THAT CLAIMED RIGHT OF THE CORPORATION TO USE AND OCCUPANCY FOR THE
ARCHBISHOP CHOSEN BY THE AMERICAN CHURCHES IS OPPOSED BY APPELLANTS WHO
ARE IN POSSESSION.  BENJAMIN FEDCHENKOFF BASES HIS RIGHT ON AN
APPOINTMENT IN 1934 BY THE SUPREME CHURCH AUTHORITY OF THE RUSSIAN
ORTHODOX CHURCH, TO WIT, THE PATRIARCH LOCUM TENENS OF MOSCOW AND ALL
RUSSIA AND ITS HOLY SYNOD, AS ARCHBISHOP OF THE ARCHDIOCESE OF NORTH
AMERICA AND THE ALEUTIAN ISLANDS.  THE OTHER DEFENDANT-APPELLANT IS A
PRIEST OF THE RUSSIAN ORTHODOX CHURCH, ALSO ACKNOWLEDGING THE SPIRITUAL
AND ADMINISTRATIVE CONTROL OF THE MOSCOW HIERARCHY. 

DETERMINATION OF THE RIGHT TO USE AND OCCUPY SAINT NICHOLAS DEPENDS
UPON WHETHER THE APPOINTMENT OF BENJAMIN BY THE PATRIARCH OR THE
ELECTION OF THE ARCHBISHOP FOR NORTH AMERICA BY THE CONVENTION OF THE
AMERICAN CHURCHES VALIDLY SELECTS THE RULING HIERARCH FOR THE AMERICAN
CHURCHES.  THE COURT OF APPEALS OF NEW YORK, REVERSING THE LOWER COURT,
DETERMINED THAT THE PRELATE APPOINTED BY THE MOSCOW ECCLESIASTICAL
AUTHORITIES WAS NOT ENTITLED TO THE CATHEDRAL AND DIRECTED THE ENTRY OF
A JUDGMENT THAT APPELLEE CORPORATION BE REINVESTED WITH THE POSSESSION
AND ADMINISTRATION OF THE TEMPORALITIES OF ST. NICHOLAS CATHEDRAL.  ST.
NICHOLAS CATHEDRAL V. KEDROFF, 302 N.Y. 1, 33, 96 N.E.2D 56, 74.  THIS
DETERMINATION WAS MADE ON THE AUTHORITY OF ARTICLE 5-C OF THE RELIGIOUS
CORPORATIONS LAW OF NEW YORK, 302 N.Y., AT 24 ET SEQ., 96 N.E.2D, AT 68
ET SEQ., AGAINST APPELLANTS' CONTENTION THAT THIS NEW YORK STATUTE, AS
CONSTRUED, VIOLATED THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES. 

BECAUSE OF THE CONSTITUTIONAL QUESTIONS THUS GENERALLY INVOLVED, WE
NOTED PROBABLE JURISDICTION, AND, AFTER ARGUMENT AND SUBMISSION OF THE
CASE LAST TERM, ORDERED REARGUMENT AND REQUESTED COUNSEL TO INCLUDE A
DISCUSSION OF WHETHER THE JUDGMENT MIGHT BE SUSTAINED ON STATE
GROUNDS.  343 U.S. 972.  BOTH PARTIES CONCLUDED THAT IT COULD NOT, AND
THE UNEQUIVOCAL REMITTITUR OF THE NEW YORK COURT OF APPEALS, 302 N.Y.
689, 98 N.E.2D 485, SPECIFICALLY STATING THE CONSTITUTIONALITY OF THE
STATUTE AS THE NECESSARY GROUND FOR DECISION, COMPELS THIS VIEW AND
PRECLUDES ANY DOUBT AS TO THE PROPRIETY OF OUR DETERMINATION OF THE
CONSTITUTIONAL ISSUE ON THE MERITS.  GRAYSON V. HARRIS, 267 U.S. 352;
INDIANA EX REL. ANDERSON V. BRAND, 303 U.S. 95.  THE CASE NOW HAS BEEN
REARGUED AND SUBMITTED. 

ARTICLE 5-C WAS ADDED TO THE RELIGIOUS CORPORATIONS LAW OF NEW YORK
IN 1945 AND PROVIDED BOTH FOR THE INCORPORATION AND ADMINISTRATION OF
RUSSIAN ORTHODOX CHURCHES.  CLARIFYING AMENDMENTS WERE ADDED IN 1948. 
THE PURPOSE OF THE ARTICLE WAS TO BRING ALL THE NEW YORK CHURCHES,
FORMERLY SUBJECT TO THE ADMINISTRATIVE JURISDICTION OF THE MOST SACRED
GOVERNING SYNOD IN MOSCOW OR THE PATRIARCH OF MOSCOW, INTO AN
ADMINISTRATIVELY AUTONOMOUS METROPOLITAN DISTRICT.  THAT DISTRICT WAS
NORTH AMERICAN IN AREA, CREATED PURSUANT TO RESOLUTIONS ADOPTED AT A
SOBOR HELD AT DETROIT IN 1924.  (FN2)  THIS DECLARED AUTONOMY WAS MADE
EFFECTIVE BY A FURTHER LEGISLATIVE REQUIREMENT THAT ALL THE CHURCHES
FORMERLY ADMINISTRATIVELY SUBJECT TO THE MOSCOW SYNOD AND PATRIARCHATE
SHOULD FOR THE FUTURE BE GOVERNED BY THE ECCLESIASTICAL BODY AND
HIERARCHY OF THE AMERICAN METROPOLITAN DISTRICT.  (FN3)  THE FOREGOING
ANALYSIS FOLLOWS THE INTERPRETATION OF THIS ARTICLE BY THE COURT OF
APPEALS OF NEW YORK, AN INTERPRETATION BINDING UPON US.  (FN4) 

ARTICLE 5-C IS CHALLENGED AS INVALID UNDER THE CONSTITUTIONAL
PROHIBITION AGAINST INTERFERENCE WITH THE EXERCISE OF RELIGION.  (FN5)
THE APPELLANTS' CONTENTION, OF COURSE, IS BASED ON THE THEORY THAT THE
PRINCIPLES OF THE FIRST AMENDMENT ARE MADE APPLICABLE TO THE STATES BY
THE FOURTEENTH.  (FN6)  SEE STOKES, CHURCH AND STATE IN THE UNITED
STATES (1950), VOL. 1, C. VIII. 

THE RUSSIAN ORTHODOX CHURCH IS AN AUTOCEPHALOUS MEMBER OF THE EASTERN
ORTHODOX GREEK CATHOLIC CHURCH.  IT SPRANG FROM THE CHURCH OF
CONSTANTINOPLE IN THE TENTH CENTURY.  THE SCHISM OF 1054 A.D. SPLIT THE
UNIVERSAL CHURCH INTO THOSE OF THE EAST AND THE WEST.  GRADUALLY SELF
GOVERNMENT WAS ASSUMED BY THE RUSSIAN CHURCH UNTIL IN THE SIXTEENTH
CENTURY ITS AUTONOMY WAS RECOGNIZED AND A PATRIARCH OF MOSCOW
APPEARED.  FORTESCUE, ORTHODOX EASTERN CHURCH, C.V. FOR THE NEXT ONE
HUNDRED YEARS THE DEVELOPMENT OF THE CHURCH KEPT PACE WITH THE GROWTH
OF POWER OF THE CZARS BUT IT INCREASINGLY BECAME A PART OF THE CIVIL
GOVERNMENT - A STATE CHURCH.  THROUGHOUT THAT PERIOD IT ALSO REMAINED
AN HIERARCHICAL CHURCH WITH A PATRIARCH AT ITS HEAD, GOVERNED BY THE
CONVENTIONS OR SOBORS CALLED BY HIM.  HOWEVER, FROM THE TIME OF PETER
THE GREAT UNTIL 1917 NO SOBOR WAS HELD.  NO PATRIARCH RULED OR WAS
CHOSEN.  DURING THAT TIME THE CHURCH WAS GOVERNED BY A HOLY SYNOD, A
GROUP OF ECCLESIASTICS WITH A CHIEF PROCURATOR REPRESENTATIVE OF THE
GOVERNMENT AS A MEMBER. 

LATE IN THE EIGHTEENTH CENTURY THE RUSSIAN CHURCH ENTERED THE
MISSIONARY FIELD IN THE ALEUTIAN ISLANDS AND ALASKA.  FROM THERE
CHURCHES SPREAD SLOWLY DOWN THE PACIFIC COAST AND LATER, WITH THE
SLAVIC IMMIGRATION, TO OUR EASTERN CITIES, PARTICULARLY TO DETROIT,
CLEVELAND, CHICAGO, PITTSBURGH AND NEW YORK.  THE CHARACTER OF THE
ADMINISTRATIVE UNIT CHANGED WITH THE YEARS AS IS INDICATED BY THE
CHANGES IN ITS NAME.  SEE NOTE 2.  IN 1904 WHEN A DIOCESE OF NORTH
AMERICA WAS CREATED ITS FIRST ARCHBISHOP, TIKHON, SHORTLY THEREAFTER
ESTABLISHED HIMSELF IN HIS SEAT AT SAINT NICHOLAS CATHEDRAL.  HIS
APPOINTMENT CAME FROM THE HOLY SYNOD OF RUSSIA AS DID THOSE OF HIS
SUCCESSORS IN ORDER PLATON AND EVDOKIM.  UNDER THOSE APPOINTMENTS THE
SUCCESSIVE ARCHBISHOPS OCCUPIED THE CATHEDRAL AND RESIDENCE OF SAINT
NICHOLAS UNDER THE ADMINISTRATIVE AUTHORITY OF THE HOLY SYNOD. 

IN 1917 ARCHBISHOP EVDOKIM RETURNED TO RUSSIA PERMANENTLY.  EARLY
THAT YEAR AN ALL RUSSIAN SOBOR WAS HELD, THE FIRST SINCE PETER THE
GREAT.  IT OCCURRED DURING THE INTERLUDE OF POLITICAL FREEDOM FOLLOWING
THE FALL OF THE CZAR.  A PATRIARCH WAS ELECTED AND INSTALLED - TIKHON
WHO HAD BEEN THE FIRST AMERICAN ARCHBISHOP.  UNCERTAINTIES AS TO THE
SUCCESSION TO AND ADMINISTRATION OF THE AMERICAN ARCHBISHOPRIC MADE
THEIR APPEARANCE FOLLOWING THIS SOBOR AND WERE LARGELY INDUCED BY THE
ALMOST CONTEMPORANEOUS POLITICAL DISTURBANCES WHICH CULMINATED SWIFTLY
IN THE BOLSHEVIK REVOLUTION OF 1917.  THE RUSSIAN ORTHODOX CHURCH WAS
DRAWN INTO THIS MAELSTROM.  AFTER A FEW YEARS THE PATRIARCH WAS
IMPRISONED.  THERE WERE SUGGESTIONS OF HIS COUNTER-REVOLUTIONARY
ACTIVITY.  CHURCH POWER WAS TRANSFERRED, PARTLY THROUGH A SOBOR
CONSIDERED BY MANY AS NONCANONICAL, TO A SUPREME CHURCH COUNCIL.  THE
DECLARED REFORMS WERE SAID TO HAVE RESULTED IN A "LIVING CHURCH" OR
SOMETIMES IN A "RENOVATED CHURCH."  CIRCUMSTANCES AND PRESSURES
CHANGED.  PATRIARCH TIKHON WAS RELEASED FROM PRISON AND DIED IN 1925. 
HE NAMED THREE BISHOPS AS LOCUM TENENS FOR THE PATRIARCHAL THRONE.  IT
WAS ONE OF THESE, SERGIUS, WHO IN 1933 APPOINTED THE APPELLANT BENJAMIN
AS ARCHBISHOP.  THE CHURCH WAS REGISTERED AS A RELIGIOUS ORGANIZATION
UNDER SOVIET LAW IN 1927.  THEREAFTER THE RUSSIAN CHURCH AND THE
RUSSIAN STATE APPROACHED IF NOT A RECONCILIATION AT LEAST AN ADJUSTMENT
WHICH EVENTUATED BY 1943 IN THE ELECTION OF SERGIUS, ONE OF THE BISHOPS
NAMED AS LOCUM TENENS BY TIKHON, TO THE PATRIARCHATE.  THE LIVING OR
RENOVATED CHURCH, WHETHER DEEMED A REFORMED, A SCHISMATIC OR A NEW
CHURCH, APPARENTLY WITHERED AWAY.  AFTER SERGIUS' DEATH A NEW PATRIARCH
OF THE RUSSIAN ORTHODOX CHURCH, ALEXI, WAS CHOSEN PATRIARCH IN 1945 AT
MOSCOW AT A SOBOR RECOGNIZED BY ALL PARTIES TO THIS LITIGATION AS A
TRUE SOBOR HELD IN ACCORDANCE WITH THE CHURCH CANONS.  (FN7) 

THE RUSSIAN UPHEAVAL CAUSED REPERCUSSIONS IN THE NORTH AMERICAN
DIOCESE.  THAT DIOCESE AT THE TIME OF THE SOVIET REVOLUTION RECOGNIZED
THE SPIRITUAL AND ADMINISTRATIVE CONTROL OF MOSCOW.  WHITE RUSSIANS,
BOTH LAY AND CLERICAL, FOUND ASYLUM IN AMERICA FROM THE REVOLUTIONARY
CONFLICTS, STRENGTHENING THE FEELING OF ABHORRENCE OF THE SECULAR
ATTITUDE OF THE NEW RUSSIAN GOVERNMENT.  THE CHURCH MEMBERS ALREADY
HERE, IMMIGRANTS AND NATIVE-BORN, WHILE HABITUATED TO LOOK TO MOSCOW
FOR RELIGIOUS DIRECTION, WERE ACCUSTOMED TO OUR THEORY OF SEPARATION
BETWEEN CHURCH AND STATE.  THE RUSSIAN TURMOIL, THE RESTRAINTS ON
RELIGIOUS ACTIVITIES AND THE EVOLUTION OF A NEW ECCLESIASTICAL
HIERARCHY IN THE FORM OF THE "LIVING CHURCH," DEEMED NONCANONICAL OR
SCHISMATIC BY MOST CHURCHMEN, MADE VERY DIFFICULT RUSSIAN
ADMINISTRATION OF THE AMERICAN DIOCESE.  FURTHERMORE, PATRIARCH TIKHON,
ON NOVEMBER 20, 1920, ISSUED DECISION NO. 362 RELATING TO CHURCH
ADMINISTRATION FOR TROUBLESOME TIMES.  THIS GRANTED A LARGE MEASURE OF
AUTONOMY, WHEN THE RUSSIAN RULING AUTHORITY WAS UNABLE TO FUNCTION,
SUBJECT TO "CONFIRMATION LATER TO THE CENTRAL CHURCH AUTHORITY WHEN IT
IS RE-ESTABLISHED."  NATURALLY THE GROWING NUMBER OF AMERICAN-BORN
MEMBERS OF THE RUSSIAN CHURCH DID NOT CLING TO A HIERARCHY IDENTIFIED
WITH THEIR COUNTRY OF REMOTE ORIGIN WITH THE SAME NATIONAL FEELING THAT
MOVED THEIR IMMIGRANT ANCESTORS.  THESE FACTS AND FORCES GENERATED IN
AMERICA A SEPARATIST MOVEMENT. 

THAT MOVEMENT BROUGHT ABOUT THE ARRANGEMENTS AT THE DETROIT SOBOR OF
1924 FOR A TEMPORARY AMERICAN ADMINISTRATION OF THE CHURCH ON ACCOUNT
OF THE DISTURBANCES IN RUSSIA.  (FN8)  THIS WAS FOLLOWED BY THE
DECLARATIONS OF AUTONOMY OF THE SUCCESSIVE SOBORS SINCE THAT DATE, A
SPATE OF LITIGATION CONCERNING CONTROL OF THE VARIOUS CHURCHES AND
OCCUPANCY OF ECCLESIASTICAL POSITIONS, (FN9) THE NEW YORK LEGISLATION
(KNOWN AS ARTICLE 5-C, NOTES 2 AND 3, SUPRA), AND THIS CONTROVERSY. 

DELEGATES FROM THE NORTH AMERICAN DIOCESE INTENDED TO BE REPRESENTED
AT AN ADMITTEDLY CANONICAL SOBOR OF THE RUSSIAN ORTHODOX CHURCH HELD IN
1945 AT MOSCOW.  THEY DID NOT ARRIVE IN TIME ON ACCOUNT OF DELAYS,
RESPONSIBILITY FOR WHICH HAS NOT BEEN FIXED.  THE FOLLOWING STIPULATION
APPEARS AS TO THEIR LATER ACTIONS WHILE AT MOSCOW: 

"IT IS STIPULATED THAT BISHOP ALEXI AND FATHER DZVONCHIK,
REPRESENTING THE LOCAL GROUP OF AMERICAN CHURCHES UNDER BISHOP
THEOPHILUS, APPEARED BEFORE THE PATRIARCH AND THE MEMBERS OF HIS SYNOD
IN MOSCOW, PRESENTED A WRITTEN REPORT ON THE CONDITION OF THE AMERICAN
CHURCH, WITH A REQUEST FOR AUTONOMY AND A FEW DAYS LATER RECEIVED FROM
THE PATRIARCH THE UKASE  ...  ." 

THERE CAME TO THE RUSSIAN CHURCH IN AMERICA THIS UKASE OF THE MOSCOW
PATRIARCHY OF FEBRUARY 14 OR 16, 1945, COVERING MOSCOW'S REQUIREMENTS
FOR REUNION OF THE AMERICAN ORTHODOX CHURCH WITH THE RUSSIAN.  IT
REQUIRED FOR REUNION THAT THE RUSSIAN CHURCH IN AMERICA HOLD PROMPTLY
AN "ALL AMERICAN ORTHODOX CHURCH SOBOR"; THAT IT EXPRESS THE DECISION
OF THE DIOCESES TO REUNITE WITH THE RUSSIAN MOTHER CHURCH, DECLARE THE
AGREEMENT OF THE AMERICAN ORTHODOX CHURCH TO ABSTAIN "FROM POLITICAL
ACTIVITIES AGAINST THE U.S.S.R."  AND SO DIRECT ITS PARISHES, AND ELECT
A METROPOLITAN SUBJECT TO CONFIRMATION BY THE MOSCOW PATRIARCHY.  THE
DECREE SAID, "IN VIEW OF THE DISTANCE OF THE AMERICAN METROPOLITAN
DISTRICT FROM THE RUSSIAN MOTHER CHURCH  ...  THE METROPOLITAN-EXARCH
...  MAY BE GIVEN SOME EXTENDED POWERS BY THE MOSCOW PATRIARCHY  ...
." 

THE AMERICAN CONGREGATIONS SPEAKING THROUGH THEIR CLEVELAND SOBOR OF
1946 REFUSED THE PROFFERED ARRANGEMENT AND RESOLVED IN PART: 

"THAT ANY ADMINISTRATIVE RECOGNITION OF THE SYNOD OF THE RUSSIAN
ORTHODOX CHURCH ABROAD IS HEREBY TERMINATED, RETAINING, HOWEVER, OUR
SPIRITUAL AND BROTHERLY RELATIONS WITH ALL PARTS OF THE RUSSIAN
ORTHODOX CHURCH ABROAD  ...  ."   THIS ENDED THE EFFORTS TO COMPOSE THE
DIFFERENCES BETWEEN THE MOTHER CHURCH AND ITS AMERICAN OFFSPRING, AND
THIS LITIGATION FOLLOWED.  WE UNDERSTAND THE ABOVE FACTUAL SUMMARY
CORRESPONDS SUBSTANTIALLY WITH THE FACTUAL BASIS FOR DETERMINATION
FORMULATED BY THE COURT OF APPEALS OF NEW YORK.  FROM THOSE
CIRCUMSTANCES IT SEEMS CLEAR THAT THE RUSSIAN ORTHODOX CHURCH WAS,
UNTIL THE RUSSIAN REVOLUTION, AN HIERARCHICAL CHURCH WITH UNQUESTIONED
PARAMOUNT JURISDICTION IN THE GOVERNING BODY IN RUSSIA OVER THE
AMERICAN METROPOLITANATE.  NOTHING INDICATES THAT EITHER THE SACRED
SYNOD OR THE SUCCEEDING PATRIARCHS RELINQUISHED THAT AUTHORITY OR
RECOGNIZED THE AUTONOMY OF THE AMERICAN CHURCH.  THE COURT OF APPEALS
DECISION PROCEEDS, WE UNDERSTAND, UPON THE SAME ASSUMPTION.  302 N.Y.,
AT 5, 23, 24, 96 N.E.2D, AT 57, 68, 69.  THAT COURT DID CONSIDER
"WHETHER THERE EXISTS IN MOSCOW AT THE PRESENT TIME A TRUE CENTRAL
ORGANIZATION OF THE RUSSIAN ORTHODOX CHURCH CAPABLE OF FUNCTIONING AS
THE HEAD OF A FREE INTERNATIONAL RELIGIOUS BODY."  IT CONCLUDED THAT
THIS ASPECT OF THE CONTROVERSY HAD NOT BEEN SUFFICIENTLY DEVELOPED TO
JUSTIFY A JUDGMENT UPON THAT GROUND.  302 N.Y., AT 22-24, 96 N.E.2D, AT
67-69. 

THE RELIGIOUS CORPORATIONS LAW.  - THE NEW YORK COURT OF APPEALS
DEPENDED FOR ITS JUDGMENT, REFUSING RECOGNITION TO ARCHBISHOP BENJAMIN,
THE APPOINTEE OF THE MOSCOW HIERARCHY OF THE RUSSIAN ORTHODOX CHURCH,
UPON ARTICLE 5-C OF THE RELIGIOUS CORPORATIONS LAW, QUOTED AND ANALYZED
AT NOTES 2 AND 3, SUPRA.  (FN10)  CERTAINLY A LEGISLATURE IS FREE TO
ACT UPON SUCH INFORMATION AS IT MAY HAVE AS TO THE NECESSITY FOR
LEGISLATION.  BUT AN ENACTMENT BY A LEGISLATURE CANNOT VALIDATE ACTION
WHICH THE CONSTITUTION PROHIBITS, AND WE THINK THAT THE STATUTE HERE IN
QUESTION PASSES THE CONSTITUTIONAL LIMITS.  WE CONCLUDE THAT ARTICLE 5
C UNDERTOOK BY ITS TERMS TO TRANSFER THE CONTROL OF THE NEW YORK
CHURCHES OF THE RUSSIAN ORTHODOX RELIGION FROM THE CENTRAL GOVERNING
HIERARCHY OF THE RUSSIAN ORTHODOX CHURCH, THE PATRIARCH OF MOSCOW AND
THE HOLY SYNOD, TO THE GOVERNING AUTHORITIES OF THE RUSSIAN CHURCH IN
AMERICA, A CHURCH ORGANIZATION LIMITED TO THE DIOCESE OF NORTH AMERICA
AND THE ALEUTIAN ISLANDS.  THIS TRANSFER TAKES PLACE BY VIRTUE OF THE
STATUTE.  SUCH A LAW VIOLATES THE FOURTEENTH AMENDMENT.  IT PROHIBITS
IN THIS COUNTRY THE FREE EXERCISE OF RELIGION.  LEGISLATION THAT
REGULATES CHURCH ADMINISTRATION, THE OPERATION OF THE CHURCHES, THE
APPOINTMENT OF CLERGY, BY REQUIRING CONFORMITY TO CHURCH STATUTES
"ADOPTED AT A GENERAL CONVENTION (SOBOR) HELD IN THE CITY OF NEW YORK
ON OR ABOUT OR BETWEEN OCTOBER FIFTH TO EIGHTH, NINETEEN HUNDRED THIRTY
SEVEN, AND ANY AMENDMENTS THERETO," NOTE 3, SUPRA, PROHIBITS THE FREE
EXERCISE OF RELIGION.  ALTHOUGH THIS STATUTE REQUIRES THE NEW YORK
CHURCHES TO "IN ALL OTHER RESPECTS CONFORM TO, MAINTAIN AND FOLLOW THE
FAITH, DOCTRINE, RITUAL, COMMUNION, DISCIPLINE, CANON LAW, TRADITIONS
AND USAGES OF THE EASTERN CONFESSION (EASTERN ORTHODOX OR GREEK
CATHOLIC CHURCH)," THEIR CONFORMITY IS BY LEGISLATIVE FIAT AND SUBJECT
TO LEGISLATIVE WILL.  SHOULD THE STATE ASSERT POWER TO CHANGE THE
STATUTE REQUIRING CONFORMITY TO ANCIENT FAITH AND DOCTRINE TO ONE
ESTABLISHING A DIFFERENT DOCTRINE, THE INVALIDITY WOULD BE
UNMISTAKABLE. 

ALTHOUGH SEC. 5 OF THE RELIGIOUS CORPORATIONS LAW (FN11) HAD LONG
CONTROLLED RELIGIOUS CORPORATIONS, THE COURT OF APPEALS HELD THAT ITS
RULE WAS NOT BASED ON ANY CONSTITUTIONAL REQUIREMENT OR PROHIBITION. 
(FN12)  SINCE CERTAIN EVENTS OF WHICH THE COURT TOOK JUDICIAL NOTICE
INDICATED TO IT THAT THE RUSSIAN GOVERNMENT EXERCISED CONTROL OVER THE
CENTRAL CHURCH AUTHORITIES AND THAT THE AMERICAN CHURCH ACTED TO
PROTECT ITS PULPITS AND FAITH FROM SUCH INFLUENCES, THE COURT OF
APPEALS FELT THAT THE LEGISLATURE'S REASONABLE BELIEF IN SUCH
CONDITIONS JUSTIFIED THE STATE IN ENACTING A LAW TO FREE THE AMERICAN
GROUP FROM INFILTRATION OF SUCH ATHEISTIC OR SUBVERSIVE INFLUENCES. 
(FN13) 

THIS LEGISLATION, ART. 5-C, IN THE VIEW OF THE COURT OF APPEALS, GAVE
THE USE OF THE CHURCHES TO THE RUSSIAN CHURCH IN AMERICA ON THE THEORY
THAT THIS CHURCH WOULD MOST FAITHFULLY CARRY OUT THE PURPOSES OF THE
RELIGIOUS TRUST.  (FN14)  THUS DANGERS OF POLITICAL USE OF CHURCH
PULPITS WOULD BE MINIMIZED.  LEGISLATIVE POWER TO PUNISH SUBVERSIVE
ACTION CANNOT BE DOUBTED.  IF SUCH ACTION SHOULD BE ACTUALLY ATTEMPTED
BY A CLERIC, NEITHER HIS ROBE NOR HIS PULPIT WOULD BE A DEFENSE.  BUT
IN THIS CASE NO PROBLEM OF PUNISHMENT FOR THE VIOLATION OF LAW ARISES. 
THERE IS NO CHARGE OF SUBVERSIVE OR HOSTILE ACTION BY ANY
ECCLESIASTIC.  HERE THERE IS A TRANSFER BY STATUTE OF CONTROL OVER
CHURCHES.  THIS VIOLATES OUR RULE OF SEPARATION BETWEEN CHURCH AND
STATE.  THAT CONCLUSION RESULTS FROM THE PURPOSE, MEANING AND EFFECT OF
THE NEW YORK LEGISLATION STATED ABOVE, CONSIDERED IN THE LIGHT OF THE
HISTORY AND DECISIONS CONSIDERED BELOW. 

HIERARCHICAL CHURCHES MAY BE DEFINED AS THOSE ORGANIZED AS A BODY
WITH OTHER CHURCHES HAVING SIMILAR FAITH AND DOCTRINE WITH A COMMON
RULING CONVOCATION OR ECCLESIASTICAL HEAD.  IN WATSON V. JONES, 13
WALL.  679, THEY ARE SPOKEN OF IN LIKE TERMS.  (FN15)  THAT OPINION HAS
BEEN GIVEN CONSIDERATION IN SUBSEQUENT CHURCH LITIGATION - STATE AND
NATIONAL.  (FN16)  THE OPINION ITSELF, HOWEVER, DID NOT TURN ON EITHER
THE ESTABLISHMENT OR THE PROHIBITION OF THE FREE EXERCISE OF RELIGION. 
IT WAS A CHURCH CONTROVERSY IN THE THIRD OR WALNUT STREET PRESBYTERIAN
CHURCH OF LOUISVILLE, KENTUCKY, ARISING OUT OF THE SLAVERY CONFLICT AND
WAS FILLED WITH THE ACRIMONY OF THAT PERIOD.  IT WAS DECIDED HERE AT
THE 1871 TERM.  "THE GOVERNMENT OF THE PRESBYTERIAN CHURCH IS EXERCISED
BY AND THROUGH AN ASCENDING SERIES OF 'JUDICATORIES,' KNOWN AS CHURCH
SESSIONS, PRESBYTERIES, SYNODS, AND A GENERAL ASSEMBLY."  ID., AT 681. 
THE OPINION OF THIS COURT ASSUMED WITHOUT QUESTION THAT THE LOUISVILLE
CHURCH, ITS PROPERTY AND ITS OFFICERS WERE ORIGINALLY AND UP TO THE
BEGINNING OF THE DISAGREEMENTS SUBJECTED TO THE OPERATION OF THE LAWS
OF THE GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH.  ID., AT 683.  THE
ACTUAL POSSESSION OF THE CHURCH PROPERTY WAS IN TRUSTEES; ITS OPERATION
OR USE CONTROLLED BY THE SESSION COMPOSED OF ELDERS.  (FN17)  BOTH WERE
GROUPS ELECTED AT INTERVALS BY THE MEMBERS. 

IN MAY OF 1865 THE GENERAL ASSEMBLY, THE HIGHEST JUDICATORY OF THE
CHURCH, MADE A DECLARATION OF LOYALTY TO THE FEDERAL GOVERNMENT
DENOUNCING SLAVERY, AND DIRECTED THAT NEW MEMBERS WITH CONTRARY VIEWS
SHOULD NOT BE RECEIVED.  THE LOUISVILLE PRESBYTERY, THE IMMEDIATE
SUPERIOR OF THE WALNUT STREET CHURCH, PROMPTLY ISSUED A DECLARATION AND
TESTIMONY, REFUSING OBEDIENCE AND CALLING FOR RESISTANCE TO THE ALLEGED
USURPATION OF AUTHORITY.  THE LOUISVILLE PRESBYTERY DIVIDED AS DID THE
WALNUT STREET CHURCH AND THE PROSLAVERY GROUP OBTAINED ADMISSION INTO
THE PRESBYTERIAN CHURCH OF THE CONFERERATE STATES.  IN JUNE 1867 THE
PRESBYTERIAN GENERAL ASSEMBLY FOR THE UNITED STATES DECLARED THE
PRESBYTERY AND SYNOD RECOGNIZED BY THE PROSLAVERY PARTY WERE "IN NO
SENSE A TRUE AND LAWFUL SYNOD AND PRESBYTERY IN CONNECTION WITH AND
UNDER THE CARE AND AUTHORITY OF THE GENERAL ASSEMBLY OF THE
PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA."  THEY WERE
"PERMANENTLY EXCLUDED FROM CONNECTION WITH OR REPRESENTATION IN THE
ASSEMBLY.  BY THE SAME RESOLUTION THE SYNOD AND PRESBYTERY ADHERED TO
BY THOSE WHOM THE PROSLAVERY PARTY OPPOSED WERE DECLARED TO BE THE TRUE
AND LAWFUL PRESBYTERY OF LOUISVILLE, AND SYNOD OF KENTUCKY."  ID., AT
692. 

LITIGATION STARTED IN 1866 WITH A SUIT IN THE STATE COURT BY CERTAIN
OF THE ANTISLAVERY GROUP TO HAVE DECLARED THEIR RIGHT TO ACT AS DULY
ELECTED ADDITIONAL ELDERS "IN THE MANAGEMENT OF THE CHURCH PROPERTY FOR
PURPOSES OF RELIGIOUS WORSHIP."  ID., AT 685.  AS THE COURT OF APPEALS
OF KENTUCKY THOUGHT THAT CERTAIN ACTS OF THE LOUISVILLE PRESBYTERY AND
THE GENERAL ASSEMBLY OF THE UNITED STATES, IN PRONOUNCING THE
ADDITIONAL ELDERS DULY ELECTED, WERE VOID AS BEYOND THEIR FUNCTIONS,
ID., AT 693, (FN18) IT REFUSED THE PLEA OF THE ANTISLAVERY GROUP AND
LEFT THE PROSLAVERY ELDERS AND TRUSTEES IN CONTROL OF THE WALNUT STREET
CHURCH. 

THEREUPON A NEW SUIT, WATSON V. JONES, WAS BEGUN BY ALLEGED MEMBERS
OF THE CHURCH TO SECURE THE USE OF THE WALNUT STREET CHURCH FOR THE
ANTISLAVERY GROUP.  THIS SUIT WAS TO DECIDE NOT THE VALIDITY OF AN
ELECTION OF ELDERS FOUGHT OUT IN WATSON V. AVERY, SUPRA BUT WHICH ONE
OF TWO BODIES SHOULD BE RECOGNIZED AS ENTITLED TO THE USE OF THE WALNUT
STREET PRESBYTERIAN CHURCH.  IT WAS DETERMINED THAT PLAINTIFFS HAD A
BENEFICIAL INTEREST IN THE CHURCH PROPERTY AND THEREFORE A STANDING TO
SUE FOR ITS PROPER USE, IF THEY WERE MEMBERS.  ID., AT 697, 714.  A
SCHISM WAS RECOGNIZED.  ID., AT 717.  IT WAS HELD: 

"THE TRUSTEES OBVIOUSLY HOLD POSSESSION FOR THE USE OF THE PERSONS
WHO BY THE CONSTITUTION, USAGES, AND LAWS OF THE PRESBYTERIAN BODY, ARE
ENTITLED TO THAT USE."  ID., AT 720. 

THEY WERE REQUIRED TO RECOGNIZE "THE TRUE USES OF THE TRUST."  ID., AT
722.  THEN TURNING TO THE CONSIDERATION OF AN HIERARCHICAL CHURCH, AS
DEFINED IN N. 15, SUPRA, AND, AS IT FOUND THE PRESBYTERIAN CHURCH TO
BE, THIS COURT SAID: 

"IN THIS CLASS OF CASES WE THINK THE RULE OF ACTION WHICH SHOULD
GOVERN THE CIVIL COURTS, FOUNDED IN A BROAD AND SOUND VIEW OF THE
RELATIONS OF CHURCH AND STATE UNDER OUR SYSTEM OF LAWS, AND SUPPORTED
BY A PREPONDERATING WEIGHT OF JUDICIAL AUTHORITY IS, THAT, WHENEVER THE
QUESTIONS OF DISCIPLINE, OR OF FAITH, OR ECCLESIASTICAL RULE, CUSTOM,
OR LAW HAVE BEEN DECIDED BY THE HIGHEST OF THESE CHURCH JUDICATORIES TO
WHICH THE MATTER HAS BEEN CARRIED, THE LEGAL TRIBUNALS MUST ACCEPT SUCH
DECISIONS AS FINAL, AND AS BINDING ON THEM, IN THEIR APPLICATION TO THE
CASE BEFORE THEM."  ID., AT 727. 

AS THE GENERAL ASSEMBLY OF THE CHURCH HAD RECOGNIZED THE ANTISLAVERY
GROUP "AS THE REGULAR AND LAWFUL WALNUT STREET CHURCH AND OFFICERS,"
ID., AT 694, NEWLY ELECTED, AND THE TRIAL COURT HAD FOUND COMPLAINANTS
MEMBERS OF THAT GROUP, AND HAD ENTERED A DECREE ADJUDGING THAT THIS
GROUP'S DULY CHOSEN AND ELECTED PASTOR, RULING ELDERS AND TRUSTEES
"RESPECTIVELY ENTITLED TO EXERCISE WHATEVER AUTHORITY IN THE SAID
CHURCH, OR OVER ITS MEMBERS OR PROPERTY, RIGHTFULLY BELONGED TO PASTOR,
ELDERS, AND TRUSTEES, RESPECTIVELY, IN CHURCHES IN CONNECTION WITH 'THE
PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA,' OLD SCHOOL, AND
ACCORDING TO THE REGULATIONS AND USAGES OF THAT CHURCH," ID., AT 698,
THIS COURT AFFIRMED THE DECREE. 

IN AFFIRMING, THE COURT RECOGNIZED THE CONTRARIETY OF VIEWS BETWEEN
JURISTS AS TO CIVIL JURISDICTION OVER CHURCH ADJUDICATIONS HAVING AN
EFFECT UPON PROPERTY OR ITS USES, WHEN THE CIVIL COURTS DETERMINE THE
CHURCH JUDICATORY HAS VIOLATED THE CHURCH'S ORGANIC LAW.  (FN19)  ITS
RULING IS SUMMED UP IN THESE WORDS: 

"IN THIS COUNTRY THE FULL AND FREE RIGHT TO ENTERTAIN ANY RELIGIOUS
BELIEF, TO PRACTICE ANY RELIGIOUS PRINCIPLE, AND TO TEACH ANY RELIGIOUS
DOCTRINE WHICH DOES NOT VIOLATE THE LAWS OF MORALITY AND PROPERTY, AND
WHICH DOES NOT INFRINGE PERSONAL RIGHTS, IS CONCEDED TO ALL.  THE LAW
KNOWS NO HERESY, AND IS COMMITTED TO THE SUPPORT OF NO DOGMA, THE
ESTABLISHMENT OF NO SECT.  THE RIGHT TO ORGANIZE VOLUNTARY RELIGIOUS
ASSOCIATIONS TO ASSIST IN THE EXPRESSION AND DISSEMINATION OF ANY
RELIGIOUS DOCTRINE, AND TO CREATE TRIBUNALS FOR THE DECISION OF
CONTROVERTED QUESTIONS OF FAITH WITHIN THE ASSOCIATION, AND FOR THE
ECCLESIASTICAL GOVERNMENT OF ALL THE INDIVIDUAL MEMBERS, CONGREGATIONS,
AND OFFICERS WITHIN THE GENERAL ASSOCIATION, IS UNQUESTIONED.  ALL WHO
UNITE THEMSELVES TO SUCH A BODY DO SO WITH AN IMPLIED CONSENT TO THIS
GOVERNMENT, AND ARE BOUND TO SUBMIT TO IT.  BUT IT WOULD BE A VAIN
CONSENT AND WOULD LEAD TO THE TOTAL SUBVERSION OF SUCH RELIGIOUS
BODIES, IF ANY ONE AGGRIEVED BY ONE OF THEIR DECISIONS COULD APPEAL TO
THE SECULAR COURTS AND HAVE THEM REVERSED.  IT IS OF THE ESSENCE OF
THESE RELIGIOUS UNIONS, AND OF THEIR RIGHT TO ESTABLISH TRIBUNALS FOR
THE DECISION OF QUESTIONS ARISING AMONG THEMSELVES, THAT THOSE
DECISIONS SHOULD BE BINDING IN ALL CASES OF ECCLESIASTICAL COGNIZANCE,
SUBJECT ONLY TO SUCH APPEALS AS THE ORGANISM ITSELF PROVIDES FOR." 
ID., AT 728-729. 

THIS IS APPLICABLE TO "QUESTIONS OF DISCIPLINE, OR OF FAITH, OR
ECCLESIASTICAL RULE, CUSTOM, OR LAW," ID., AT 727.  (FN20)  THIS
CONTROVERSY CONCERNING THE RIGHT TO USE ST. NICHOLAS CATHEDRAL IS
STRICTLY A MATTER OF ECCLESIASTICAL GOVERNMENT, THE POWER OF THE
SUPREME CHURCH AUTHORITY OF THE RUSSIAN ORTHODOX CHURCH TO APPOINT THE
RULING HIERARCH OF THE ARCHDIOCESE OF NORTH AMERICA.  NO ONE DISPUTES
THAT SUCH POWER DID LIE IN THAT AUTHORITY PRIOR TO THE RUSSIAN
REVOLUTION. 

WATSON V. JONES, ALTHOUGH IT CONTAINS A REFERENCE TO THE RELATIONS OF
CHURCH AND STATE UNDER OUR SYSTEM OF LAWS, (FN21) WAS DECIDED WITHOUT
DEPENDING UPON PROHIBITION OF STATE INTERFERENCE WITH THE FREE EXERCISE
OF RELIGION.  IT WAS DECIDED IN 1871, BEFORE JUDICIAL RECOGNITION OF
THE COERCIVE POWER OF THE FOURTEENTH AMENDMENT TO PROTECT THE
LIMITATIONS OF THE FIRST AMENDMENT AGAINST STATE ACTION.  IT LONG
ANTEDATED THE 1938 DECISIONS OF ERIE R. CO. V. TOMPKINS AND RUHLIN V.
NEW YORK LIFE INS. CO., 304 U.S. 64 AND 202, AND, THEREFORE, EVEN
THOUGH FEDERAL JURISDICTION IN THE CASE DEPENDED SOLELY ON DIVERSITY,
THE HOLDING WAS BASED ON GENERAL LAW RATHER THAN KENTUCKY LAW.  (FN22)
THE OPINION RADIATES, HOWEVER, A SPIRIT OF FREEDOM FOR RELIGIOUS
ORGANIZATIONS, AN INDEPENDENCE FROM SECULAR CONTROL OR MANIPULATION -
IN SHORT, POWER TO DECIDE FOR THEMSELVES, FREE FROM STATE INTERFERENCE,
MATTERS OF CHURCH GOVERNMENT AS WELL AS THOSE OF FAITH AND DOCTRINE. 
FREEDOM TO SELECT THE CLERGY, WHERE NO IMPROPER METHODS OF CHOICE ARE
PROVEN, (FN23) WE THINK, MUST NOW BE SAID TO HAVE FEDERAL
CONSTITUTIONAL PROTECTION AS A PART OF THE FREE EXERCISE OF RELIGION
AGAINST STATE INTERFERENCE.    LEGISLATIVE POWER.  - THE COURT OF
APPEALS OF NEW YORK RECOGNIZED, GENERALLY, THE SOUNDNESS OF THE
PHILOSOPHY OF ECCLESIASTICAL CONTROL OF CHURCH ADMINISTRATION AND
POLITY BUT CONCLUDED THAT THE EXERCISE OF THAT CONTROL WAS NOT FREE
FROM LEGISLATIVE INTERFERENCE.  (FN24)  THAT COURT PRESENTED FORCEFULLY
THE ARGUMENT SUPPORTING LEGISLATIVE POWER TO ACT ON ITS OWN KNOWLEDGE
OF "THE SOVIET ATTITUDE TOWARD THINGS RELIGIOUS."  302 N.Y., AT 32-33,
96 N.E.2D, AT 74.  IT WAS SAID: 

"THE LEGISLATURE REALIZED THAT THE NORTH AMERICAN CHURCH, IN ORDER TO
BE FREE OF SOVIET INTERFERENCE IN ITS AFFAIRS, HAD DECLARED ITS
TEMPORARY ADMINISTRATIVE AUTONOMY IN 1924, PURSUANT TO THE UKASE OF
1920, WHILE RETAINING FULL SPIRITUAL COMMUNION WITH THE PATRIARCHATE,
AND THAT THERE WAS A REAL DANGER THAT THOSE PROPERTIES AND
TEMPORALITIES LONG ENJOYED AND USED BY THE RUSSIAN ORTHODOX CHURCH
WORSHIPPERS IN THIS STATE WOULD BE TAKEN FROM THEM BY THE
REPRESENTATIVES OF THE PATRIARCHATE."  302 N.Y., AT 33, 96 N.E.2D, AT
74. 

IT WAS THOUGHT THAT AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.
382, SUPPORTED THE THESIS THAT WHERE THERE IS SOME SPECIFIC EVIL, FOUND
AS A FACT, "SOME INFRINGEMENT UPON TRADITIONAL LIBERTIES WAS
JUSTIFIABLE" TO EFFECT A CURE.  302 N.Y., AT 31, 96 N.E.2D, AT 73.  ON
THAT REASONING IT WAS THOUGHT PERMISSIBLE, IN VIEW "OF THE CHANGED
SITUATION OF THE PATRIARCHATE IN RUSSIA," TO REPLACE IT WITH THE
RUSSIAN CHURCH IN AMERICA AS THE RULING AUTHORITY OVER THE
ADMINISTRATION OF THE CHURCH.  THE LEGAL BASIS FOR THIS LEGISLATIVE
SUBSTITUTION WAS FOUND IN THE THEORY THAT THE RUSSIAN CHURCH IN AMERICA
"WAS THE TRUSTEE WHICH 'MAY BE RELIED UPON TO CARRY OUT MORE
EFFECTIVELY AND FAITHFULLY THE PURPOSES OF THIS RELIGIOUS TRUST
(CARRIER V. CARRIER, 226 N.Y. 114).'"  302 N.Y., AT 30, 96 N.E.2D AT
72.  MINDFUL OF THE AUTHORITY OF THE COURT OF APPEALS IN ITS
INTERPRETATION OF THE POWERS OF ITS OWN LEGISLATURE AND WITH RESPECT
FOR ITS STANDING AND ABILITY, WE DO NOT AGREE WITH ITS STATEMENT AS TO
LEGISLATIVE POWER OVER RELIGIOUS ORGANIZATIONS. 

IN OUR VIEW THE DOUDS CASE MAY NOT BE INTERPRETED TO VALIDATE NEW
YORK'S ARTICLE 5-C.  THAT CASE INVOLVED THE VALIDITY OF SEC. 9(H) OF
THE NATIONAL LABOR RELATIONS ACT AS AMENDED, 61 STAT. 136, 146, 29
U.S.C. SEC. 159(H).  THAT SECTION FORBADE THE N.L.R.B. FROM ACTING AT
THE SUGGESTION OF A LABOR ORGANIZATION UNLESS AFFIDAVITS OF ITS
OFFICERS WERE FILED DENYING AFFILIATION WITH SUBVERSIVE ORGANIZATIONS
OR BELIEF IN THE OVERTHROW OF THIS GOVERNMENT BY FORCE OR OTHER
UNCONSTITUTIONAL MEANS.  WE UPHELD THE ENACTMENT AS A PROPER EXERCISE
OF THE POWER TO PROTECT COMMERCE FROM THE EVIL OF DISRUPTION FROM
STRIKES SO POLITICALLY INSPIRED.  IN SO DOING WE SAID, "LEGITIMATE
ATTEMPTS TO PROTECT THE PUBLIC, NOT FROM THE REMOTE POSSIBLE EFFECTS OF
NOXIOUS IDEOLOGIES, BUT FROM PRESENT EXCESSES OF DIRECT, ACTIVE
CONDUCT, ARE NOT PRESUMPTIVELY BAD BECAUSE THEY INTERFERE WITH AND, IN
SOME OF ITS MANIFESTATIONS, RESTRAIN THE EXERCISE OF FIRST AMENDMENT
RIGHTS."  339 U.S., AT 399.  AND ADDED, "BUT INSOFAR AS THE PROBLEM IS
ONE OF DRAWING INFERENCES CONCERNING THE NEED FOR REGULATION OF
PARTICULAR FORMS OF CONDUCT FROM CONFLICTING EVIDENCE, THIS COURT IS IN
NO POSITION TO SUBSTITUTE ITS JUDGMENT AS TO THE NECESSITY OR
DESIRABILITY OF THE STATUTE FOR THAT OF CONGRESS."  ID., AT 400.  IT IS
AN EXAGGERATION TO SAY THAT THOSE SOUND STATEMENTS POINT TO A
LEGISLATIVE POWER TO TAKE AWAY FROM A CHURCH'S GOVERNING BODY AND ITS
DULY ORDAINED REPRESENTATIVE THE POSSESSION AND USE OF A BUILDING HELD
IN TRUST FOR THE PURPOSES FOR WHICH IT IS BEING EMPLOYED BECAUSE OF AN
APPREHENSION, EVEN THOUGH REASONABLE, THAT IT MAY BE EMPLOYED FOR
IMPROPER PURPOSES.  IN DOUDS, WE SAW NOTHING THAT WAS AIMED AT THE FREE
EXPRESSION OF VIEWS.  UNIONS COULD HAVE OFFICERS WITH SUCH AFFILIATIONS
AND POLITICAL PURPOSES AS THEY MIGHT CHOOSE BUT THE GOVERNMENT WAS NOT
COMPELLED TO ALLOW THOSE OFFICERS AN OPPORTUNITY TO DISRUPT COMMERCE
FOR THEIR OWN POLITICAL ENDS.  WE LOOKED UPON THE AFFIDAVIT REQUIREMENT
AS AN ASSURANCE THAT DISRUPTIVE FORCES WOULD NOT UTILIZE A GOVERNMENT
AGENCY TO ACCOMPLISH THEIR PURPOSES.  ID., AT 403. 

IN UPHOLDING THE VALIDITY OF ARTICLE 5-C, THE NEW YORK COURT OF
APPEALS APPARENTLY ASSUMES ARTICLE 5-C DOES NOTHING MORE THAN PERMIT
THE TRUSTEES OF THE CATHEDRAL TO USE IT FOR SERVICES CONSISTENT WITH
THE DESIRES OF THE MEMBERS OF THE RUSSIAN CHURCH IN AMERICA.  ITS REACH
GOES FAR BEYOND THAT POINT.  BY FIAT IT DISPLACES ONE CHURCH
ADMINISTRATOR WITH ANOTHER.  IT PASSES THE CONTROL OF MATTERS STRICTLY
ECCLESIASTICAL FROM ONE CHURCH AUTHORITY TO ANOTHER.  IT THUS INTRUDES
FOR THE BENEFIT OF ONE SEGMENT OF A CHURCH THE POWER OF THE STATE INTO
THE FORBIDDEN AREA OF RELIGIOUS FREEDOM CONTRARY TO THE PRINCIPLES OF
THE FIRST AMENDMENT.  SUCH PROHIBITION DIFFERS FROM THE RESTRICTION OF
A RIGHT TO DEAL WITH GOVERNMENT ALLOWED IN DOUDS, IN THAT THE UNION IN
THE DOUDS CASE HAD NO SUCH CONSTITUTIONALLY PROTECTED RIGHT.  NEW
YORK'S ARTICLE 5-C DIRECTLY PROHIBITS THE FREE EXERCISE OF AN
ECCLESIASTICAL RIGHT, THE CHURCH'S CHOICE OF ITS HIERARCHY. 

WE DO NOT THINK THAT NEW YORK'S LEGISLATIVE APPLICATION OF A CY-PRES
DOCTRINE TO THIS TRUST AVOIDS THE CONSTITUTIONAL RULE AGAINST
PROHIBITION OF THE FREE EXERCISE OF RELIGION.  LATE CORPORATION OF
LATTER-DAY SAINTS V. UNITED STATES, 136 U.S. 1, RELIED UPON BY THE
APPELLEE, DOES NOT SUPPORT ITS ARGUMENT.  THERE THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS HAD BEEN INCORPORATED AS A RELIGIOUS
CORPORATION BY THE STATE OF DESERET, WITH SUBSEQUENT CONFIRMATION BY
THE TERRITORY OF UTAH.  ITS PROPERTY WAS HELD FOR RELIGIOUS AND
CHARITABLE PURPOSES.  THAT CHARTER WAS REVOKED BY CONGRESS AND SOME OF
THE PROPERTY OF THE CHURCH WAS ESCHEATED TO THE UNITED STATES FOR THE
USE OF THE COMMON SCHOOLS OF UTAH.  THIS COURT UPHELD THE REVOCATION OF
THE CHARTER, RELYING ON THE RESERVED POWER OF THE CONGRESS OVER THE
ACTS OF TERRITORIES, 136 U.S., AT 45-46.  THE SEIZURE OF THE PROPERTY
WAS BOTTOMED ON THE GENERAL RULE THAT WHERE A CHARITABLE CORPORATION IS
DISSOLVED FOR UNLAWFUL PRACTICES, ID., AT 49-50, THE SOVEREIGN TAKES
AND DISTRIBUTES THE PROPERTY ACCORDING TO THE CY-PRES DOCTRINE TO
OBJECTS OF CHARITY AND USEFULNESS, E.G., SCHOOLS.  ID., AT 47, 50-51. 
A FAILURE OF THE CHARITABLE PURPOSE COULD HAVE THE SAME EFFECT.  ID.,
AT 59.  NONE OF THESE ELEMENTS EXIST TO SUPPORT THE VALIDITY OF THE NEW
YORK STATUTE PUTTING THE RUSSIAN ORTHODOX CHURCHES OF NEW YORK UNDER
THE ADMINISTRATION OF THE RUSSIAN CHURCH IN AMERICA.  SEE NOTES 2 AND
3, SUPRA. 

THE RECORD BEFORE US SHOWS NO SCHISM OVER FAITH OR DOCTRINE BETWEEN
THE RUSSIAN CHURCH IN AMERICA AND THE RUSSIAN ORTHODOX CHURCH.  IT
SHOWS ADMINISTRATIVE CONTROL OF THE NORTH AMERICAN DIOCESE BY THE
SUPREME CHURCH AUTHORITY OF THE RUSSIAN ORTHODOX CHURCH, INCLUDING THE
APPOINTMENT OF THE RULING HIERARCH IN NORTH AMERICA FROM THE FOUNDATION
OF THE DIOCESE UNTIL THE RUSSIAN REVOLUTION.  WE FIND NOTHING THAT
INDICATES A RELINQUISHMENT OF THIS POWER BY THE RUSSIAN ORTHODOX
CHURCH. 

OURS IS A GOVERNMENT WHICH BY THE "LAW OF ITS BEING" ALLOWS NO
STATUTE, STATE OR NATIONAL, THAT PROHIBITS THE FREE EXERCISE OF
RELIGION.  THERE ARE OCCASIONS WHEN CIVIL COURTS MUST DRAW LINES
BETWEEN THE RESPONSIBILITIES OF CHURCH AND STATE FOR THE DISPOSITION OR
USE OF PROPERTY.  (FN25) EVEN IN THOSE CASES WHEN THE PROPERTY RIGHT
FOLLOWS AS AN INCIDENT FROM DECISIONS OF THE CHURCH CUSTOM OR LAW ON
ECCLESIASTICAL ISSUES, THE CHURCH RULE CONTROLS.  (FN26)  THIS UNDER
OUR CONSTITUTION NECESSARILY FOLLOWS IN ORDER THAT THERE MAY BE FREE
EXERCISE OF RELIGION. 

THE DECREE OF THE COURT OF APPEALS OF NEW YORK MUST BE REVERSED, AND
THE CASE REMANDED TO THAT COURT FOR SUCH FURTHER ACTION AS IT DEEMS
PROPER AND NOT IN CONTRAVENTION OF THIS OPINION.  IT IS SO ORDERED. 

FN1  A SOBOR IS A CONVENTION OF BISHOPS, CLERGYMEN AND LAYMEN WITH
SUPERIOR POWERS, WITH THE ASSISTANCE OF WHICH THE CHURCH OFFICIALS RULE
THEIR DIOCESES OR DISTRICTS. 

THERE IS NO PROBLEM OF TITLE.  IT IS IN THE APPELLEE CORPORATION. 
THE ISSUE IS THE RIGHT OF USE.  ST. NICHOLAS CATHEDRAL V. KEDROFF, 302
N.Y. 1, 20, 96 N.E.2D 56, 66-67. 

THE DEED TO THE CATHEDRAL CORPORATION REQUIRED THE GRANTEE TO HOLD
THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THE ACT OF 1925, SET OUT
AT THE OPENING OF THIS OPINION.  AS SAID BY THE COURT OF APPEALS, 302
N.Y., AT 20, 96 N.E.2D, AT 66: 

"PLAINTIFF DOES NOT DISPUTE THIS TRUST THEORY, BUT ON THE CONTRARY
RELIES UPON IT.  PLAINTIFF HAS ENDEAVORED TO PROVE THAT THE BENEFICIAL
USE OF THE PROPERTY TODAY RIGHTFULLY BELONGS TO THE RUSSIAN CHURCH IN
AMERICA (RELIGIOUS CORPORATIONS LAW, SEC. 105) WHICH WAS FORCED TO
DECLARE ITS ADMINISTRATIVE AUTONOMY AT THE DETROIT SOBOR OF 1924 IN
ORDER TO PRESERVE AND ADHERE TO THOSE PRINCIPLES AND PRACTICES
FUNDAMENTAL TO THE RUSSIAN ORTHODOX FAITH, FREE FROM THE INFLUENCE OF
AN ATHEISTIC AND ANTIRELIGIOUS FOREIGN CIVIL GOVERNMENT." 

SEE ALSO RELIGIOUS CORPORATIONS LAW, SEC. 5, 50 MCKINNEY'S N.Y. LAWS
SEC. 5. 

FN2  50 MCKINNEY'S N.Y. LAWS SEC. 105: 

"THE 'RUSSIAN CHURCH IN AMERICA', AS THAT TERM IS USED ANYWHERE IN
THIS ARTICLE, REFERS TO THAT GROUP OF CHURCHES, CATHEDRALS, CHAPELS,
CONGREGATIONS, SOCIETIES, PARISHES, COMMITTEES AND OTHER RELIGIOUS
ORGANIZATIONS OF THE EASTERN CONFESSION (EASTERN ORTHODOX OR GREEK
CATHOLIC CHURCH) WHICH WERE KNOWN AS (A) RUSSIAN AMERICAN MISSION OF
THE RUSSIAN ORTHODOX CHURCH FROM IN OR ABOUT SEVENTEEN HUNDRED NINETY
THREE TO IN OR ABOUT EIGHTEEN HUNDRED SEVENTY; (B) DIOCESE OF ALASKA
AND THE ALEUTIAN ISLANDS OF THE RUSSIAN ORTHODOX CHURCH FROM IN OR
ABOUT EIGHTEEN HUNDRED SEVENTY TO IN OR ABOUT NINETEEN HUNDRED FOUR;
(C) DIOCESE OF NORTH AMERICA AND THE ALEUTIAN ISLANDS (OR ALASKA) OF
THE RUSSIAN ORTHODOX CHURCH FROM IN OR ABOUT NINETEEN HUNDRED FOUR TO
IN OR ABOUT NINETEEN HUNDRED TWENTY-FOUR; AND (D) RUSSIAN ORTHODOX
GREEK CATHOLIC CHURCH OF NORTH AMERICA SINCE IN OR ABOUT NINETEEN
HUNDRED TWENTY-FOUR; AND WERE SUBJECT TO THE ADMINISTRATIVE
JURISDICTION OF THE MOST SACRED GOVERNING SYNOD IN MOSCOW UNTIL IN OR
ABOUT NINETEEN HUNDRED SEVENTEEN, LATER THE PATRIARCHATE OF MOSCOW, BUT
NOW CONSTITUTE AN ADMINISTRATIVELY AUTONOMOUS METROPOLITAN DISTRICT
CREATED PURSUANT TO RESOLUTIONS ADOPTED AT A GENERAL CONVENTION (SOBOR)
OF SAID DISTRICT HELD AT DETROIT, MICHIGAN, ON OR ABOUT OR BETWEEN
APRIL SECOND TO FOURTH, NINETEEN HUNDRED TWENTY-FOUR. 

"A 'RUSSIAN ORTHODOX CHURCH,' AS THAT TERM IS USED ANYWHERE IN THIS
ARTICLE, IS A CHURCH, CATHEDRAL, CHAPEL, CONGREGATION, SOCIETY, PARISH,
COMMITTEE OR OTHER RELIGIOUS ORGANIZATION FOUNDED AND ESTABLISHED FOR
THE PURPOSE AND WITH THE INTENT OF ADHERING TO, AND BEING SUBJECT TO
THE ADMINISTRATIVE JURISDICTION OF SAID MISSION, DIOCESE OR AUTONOMOUS
METROPOLITAN DISTRICT HEREINABOVE DEFINED AS THE RUSSIAN CHURCH IN
AMERICA." 

FN3  ID., SEC. 107: 

"1.  EVERY RUSSIAN ORTHODOX CHURCH IN THIS STATE, WHETHER
INCORPORATED BEFORE OR AFTER THE CREATION OF SAID AUTONOMOUS
METROPOLITAN DISTRICT, AND WHETHER INCORPORATED OR REINCORPORATED
PURSUANT TO THIS ARTICLE OR ANY OTHER ARTICLE OF THE RELIGIOUS
CORPORATIONS LAW, OR ANY GENERAL OR PRIVATE LAW, SHALL RECOGNIZE AND BE
AND REMAIN SUBJECT TO THE JURISDICTION AND AUTHORITY OF THE GENERAL
CONVENTION (SOBOR), METROPOLITAN ARCHBISHOP OR OTHER PRIMATE OR
HIERARCH, THE COUNCIL OF BISHOPS, THE METROPOLITAN COUNCIL AND OTHER
GOVERNING BODIES AND AUTHORITIES OF THE RUSSIAN CHURCH IN AMERICA,
PURSUANT TO THE STATUTES FOR THE GOVERNMENT THEREOF ADOPTED AT A
GENERAL CONVENTION (SOBOR) HELD IN THE CITY OF NEW YORK ON OR ABOUT OR
BETWEEN OCTOBER FIFTH TO EIGHTH, NINETEEN HUNDRED THIRTY-SEVEN, AND ANY
AMENDMENTS THERETO AND ANY OTHER STATUTES OR RULES HERETOFORE OR
HEREAFTER ADOPTED BY A GENERAL CONVENTION (SOBOR) OF THE RUSSIAN CHURCH
IN AMERICA AND SHALL IN ALL OTHER RESPECTS CONFORM TO, MAINTAIN AND
FOLLOW THE FAITH, DOCTRINE, RITUAL, COMMUNION, DISCIPLINE, CANON LAW,
TRADITIONS AND USAGES OF THE EASTERN CONFESSION (EASTERN ORTHODOX OR
GREEK CATHOLIC CHURCH). 

     *         *         *         *         * 

"3.  THE TRUSTEES OF EVERY RUSSIAN ORTHODOX CHURCH SHALL HAVE THE
CUSTODY AND CONTROL OF ALL TEMPORALITIES AND PROPERTY, REAL AND
PERSONAL, BELONGING TO SUCH CHURCH AND OF THE REVENUES THEREFROM AND
SHALL ADMINISTER THE SAME IN ACCORDANCE WITH THE BY-LAWS OF SUCH
CHURCH, THE NORMAL STATUTES FOR PARISHES OF THE RUSSIAN CHURCH IN
AMERICA APPROVED AT A GENERAL CONVENTION (SOBOR) THEREOF HELD AT
CLEVELAND, OHIO, ON OR ABOUT OR BETWEEN NOVEMBER TWENTIETH TO TWENTY
THIRD, NINETEEN HUNDRED THIRTY-FOUR, AND ANY AMENDMENTS THERETO AND ALL
OTHER RULES, STATUTES, REGULATIONS AND USAGES OF THE RUSSIAN CHURCH IN
AMERICA." 

FN4  HEBERT V. LOUISIANA, 272 U.S. 312, 317; WINTERS V. NEW YORK, 333
U.S. 507, 514. 

THE COURT EXPRESSED ITS CONCLUSION IN REVERSING THE JUDGMENT OF THE
APPELLATE DIVISION OF THE SUPREME COURT, ST. NICHOLAS CATHEDRAL V.
KEDROFF, 276 APP. DIV. 309, 94 N.Y.S.2D 453, WHICH HAD AFFIRMED THE
TRIAL TERM.  192 MISC. 327, 77 N.Y.S.2D 333.  THE COURT OF APPEALS
HELD: 

"THE ONLY CONSTRUCTION WHICH GIVES MEANING TO ALL THE LANGUAGE IN
RUSSIAN ORTHODOX CHURCHES FOUNDED AND ESTABLISHED BEFORE 1924 FOR THE
PURPOSE OF ADHERING AND BEING SUBJECT TO THE NORTH AMERICAN MISSION OR
NORTH AMERICAN DIOCESE, AND TO THOSE RUSSIAN ORTHODOX CHURCHES FOUNDED
AND ESTABLISHED AFTER 1924 FOR THE PURPOSE OF ADHERING AND BEING
SUBJECT TO THE AUTONOMOUS METROPOLITAN DISTRICT.  THE MAJORITY IN THE
APPELLATE DIVISION FURTHER INTIMATED THAT TO READ THE STATUTE LITERALLY
WOULD RESULT IN AN INTERFERENCE IN ECCLESIASTICAL CONCERNS NOT WITHIN
THE COMPETENCY OF THE LEGISLATURE.  THE LATTER SUGGESTION IS THE ONLY
ONE WHICH REQUIRES DISCUSSION, FOR, AS ALREADY INDICATED, THE INTENT OF
THE LEGISLATURE (AS DISTINGUISHED FROM ITS COMPETENCY) IS
UNMISTAKABLE."  302 N.Y., AT 29, 96 N.E.2D, AT 71.    FN5  FIRST
AMENDMENT TO THE CONSTITUTION: 

"CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION,
OR PROHIBITING THE FREE EXERCISE THEREOF; ...  ." 

FN6  HAMILTON V. REGENTS, 293 U.S. 245, 262; CANTWELL V. CONNECTICUT,
310 U.S. 296, 303; EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 14-15;
ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 210-211;
ZORACH V. CLAUSON, 343 U.S. 306, 310. 

FN7  FORTESCUE, SUPRA (1916); BRIAN-CHANINOV, THE RUSSIAN CHURCH
(1931), C. VIII; ZERNOV, THE RUSSIANS AND THEIR CHURCH (1945); FRENCH,
THE EASTERN ORTHODOX CHURCH (1951), C. VII; DANZAS, THE RUSSIAN CHURCH
(1936); ANDERSON, PEOPLE, CHURCH AND STATE IN MODERN RUSSIA (1944), PP.
121-140; BOLSHAKOFF, THE FOREIGN MISSIONS OF THE RUSSIAN ORTHODOX
CHURCH (1943), C. IV. 

FN8  THE ATTITUDE OF THE RUSSIAN CHURCH IN AMERICA WILL BE MADE
SUFFICIENTLY PLAIN BY THESE EXTRACTS FROM THEIR RECORDS OF ACTION TAKEN
AT THE DETROIT SOBOR, 1924: 

"POINT 1.  TEMPORARILY, UNTIL THE CONVOCATION OF THE ALL RUSSIAN
SOBOR FURTHER INDICATED IN POINT 5, TO DECLARE THE RUSSIAN ORTHODOX
DIOCESE IN AMERICA A SELF-GOVERNED CHURCH SO THAT IT BE GOVERNED BY ITS
OWN ELECTED ARCHBISHOP BY MEANS OF A SOBOR OF BISHOPS, A COUNCIL
COMPOSED OF THOSE ELECTED FROM THE CLERGY AND LAITY, AND PERIODIC
SOBORS OF THE ENTIRE AMERICAN CHURCH. 

     *         *         *         *   * 

"POINT 5.  TO LEAVE THE FINAL REGULATION OF QUESTIONS ARISING FROM
THE RELATIONSHIP OF THE RUSSIAN AND THE AMERICAN CHURCHES TO A FUTURE
SOBOR OF THE RUSSIAN ORTHODOX CHURCH WHICH WILL BE LEGALLY CONVOKED,
LEGALLY ELECTED, WILL SIT WITH THE PARTICIPATION OF REPRESENTATIVES OF
THE AMERICAN CHURCH UNDER CONDITIONS OF POLITICAL FREEDOM, GUARANTEEING
THE FULLNESS AND AUTHORITY OF ITS DECISIONS FOR THE ENTIRE CHURCH, AND
WILL BE RECOGNIZED BY THE ENTIRE OECUMENICAL ORTHODOX CHURCH AS A TRUE
SOBOR OF THE RUSSIAN ORTHODOX CHURCH." 

FN9  NEMOLOVSKY V. RYHLOFF, 187 APP. DIV. 290, 175 N.Y.S. 617;
KEDROVSKY V. ARCHBISHOP AND CONSISTORY, 195 APP. DIV. 127, 186 N.Y.S.
346; KEDROVSKY V. ROJDESVENSKY, 214 APP. DIV. 483, 212 N.Y.S. 273; ID.,
242 N.Y. 547, 152 N.E. 421; KEDROVSKY V. ARCHBISHOP AND CONSISTORY, 218
APP. DIV. 121, 124, 217 N.Y.S. 873, 875; ID., 220 APP. DIV. 750, 222
N.Y.S. 831; ID., 249 N.Y. 75, 516, 162 N.E. 588, 164 N.E. 566;
NIKULNIKOFF V. ARCHBISHOP AND CONSISTORY, 142 MISC. 894, 255 N.Y.S.
653; WAIPA V. KUSHWARA, 259 APP. DIV. 843, 20 N.Y.S.2D 174; ID., 283
N.Y. 780, 28 N.E.2D 417. 

FN10  THE COURT SAID, 302 N.Y. 1, 96 N.E.2D 56: 

"THE LEGISLATURE HAS MADE A DETERMINATION THAT THE 'RUSSIAN CHURCH IN
AMERICA' WAS THE ONE WHICH, TO USE OUR WORDS IN 249 NEW YORK AT PAGES
77-78, WAS THE TRUSTEE WHICH 'MAY BE RELIED UPON TO CARRY OUT MORE
EFFECTIVELY AND FAITHFULLY THE PURPOSES OF THIS RELIGIOUS TRUST
(CARRIER V. CARRIER, 226 N.Y. 114)' BY REASON OF THE CHANGED SITUATION
OF THE PATRIARCHATE IN RUSSIA."  302 N.Y., AT 30, 96 N.E.2D, AT 72. 

"THE COURTS HAVE ALWAYS RECOGNIZED THAT IT IS THE PROVINCE OF THE
LEGISLATURE TO MAKE THE UNDERLYING FINDINGS OF FACT WHICH GIVE MEANING
AND SUBSTANCE TO ITS ULTIMATE DIRECTIVES.  THE COURTS HAVE
TRADITIONALLY REFUSED TO CONSIDER THE WISDOM OR TECHNICAL VALIDITY OF
SUCH FINDINGS OF FACT, IF THERE BE SOME REASONABLE BASIS UPON WHICH
THEY MAY REST."  302 N.Y., AT 31, 96 N.E.2D, AT 72-73. 

"THE LEGISLATURE OF THE STATE OF NEW YORK, LIKE THE CONGRESS, MUST BE
DEEMED TO HAVE INVESTIGATED THE WHOLE PROBLEM CAREFULLY BEFORE IT
ACTED.  THE LEGISLATURE KNEW THAT THE CENTRAL AUTHORITIES OF THE
RUSSIAN ORTHODOX CHURCH IN RUSSIA HAD BEEN SUPPRESSED AFTER THE 1917
REVOLUTION, AND THAT THE PATRIARCHATE WAS LATER RESURRECTED BY THE
RUSSIAN GOVERNMENT.  THE LEGISLATURE, LIKE CONGRESS, KNEW THE CHARACTER
AND METHOD OF OPERATION OF INTERNATIONAL COMMUNISM AND THE SOVIET
ATTITUDE TOWARD THINGS RELIGIOUS.  THE LEGISLATURE WAS AWARE OF THE
CONTEMPORARY VIEWS OF QUALIFIED OBSERVERS WHO HAVE VISITED RUSSIA AND
WHO HAVE HAD AN OPPORTUNITY TO OBSERVE THE PRESENT STATUS OF THE
PATRIARCHATE IN THE SOVIET SYSTEM.  THE LEGISLATURE REALIZED THAT THE
NORTH AMERICAN CHURCH, IN ORDER TO BE FREE OF SOVIET INTERFERENCE IN
ITS AFFAIRS, HAD DECLARED ITS TEMPORARY ADMINISTRATIVE AUTONOMY IN
1924, PURSUANT TO THE UKASE OF 1920, WHILE RETAINING FULL SPIRITUAL
COMMUNION WITH THE PATRIARCHATE, AND THAT THERE WAS A REAL DANGER THAT
THOSE PROPERTIES AND TEMPORALITIES LONG ENJOYED AND USED BY THE RUSSIAN
ORTHODOX CHURCH WORSHIPPERS IN THIS STATE WOULD BE TAKEN FROM THEM BY
THE REPRESENTATIVES OF THE PATRIARCHATE.  ON THE BASIS OF THESE FACTS,
AND THE FACTS STATED (SUPRA) AND NO DOUBT OTHER FACTS WE KNOW NOT OF,
OUR LEGISLATURE CONCLUDED THAT THE MOSCOW PATRIARCHATE WAS NO LONGER
CAPABLE OF FUNCTIONING AS A TRUE RELIGIOUS BODY, BUT HAD BECOME A TOOL
OF THE SOVIET GOVERNMENT PRIMARILY DESIGNED TO IMPLEMENT ITS FOREIGN
POLICY.  WHETHER WE, AS JUDGES, WOULD HAVE REACHED THE SAME CONCLUSION
IS IMMATERIAL.  IT IS SUFFICIENT THAT THE LEGISLATURE REACHED IT, AFTER
FULL CONSIDERATION OF ALL THE FACTS."  302 N.Y., AT 32-33, 96 N.E.2D,
AT 73-74. 

FN11  "THE TRUSTEES OF EVERY RELIGIOUS CORPORATION SHALL HAVE THE
CUSTODY AND CONTROL OF ALL THE TEMPORALITIES AND PROPERTY, REAL AND
PERSONAL, BELONGING TO THE CORPORATION AND OF THE REVENUES THEREFROM,
AND SHALL ADMINISTER THE SAME IN ACCORDANCE WITH THE DISCIPLINE, RULES
AND USAGES OF THE CORPORATION AND OF THE ECCLESIASTICAL GOVERNING BODY,
IF ANY, TO WHICH THE CORPORATION IS SUBJECT, ...  ." 

FN12  302 N.Y., AT 30, 96 N.E.2D, AT 72: 

"AS A BROAD GUIDE THIS RULE UNDOUBTEDLY HAS WORKED WELL, BUT IT IS BY
NO MEANS A CONSTITUTIONAL DOCTRINE NOT SUBJECT TO CHANGE OR
MODIFICATION BY THE SAME LEGISLATURE WHICH ANNOUNCED IT, IN CASES WHERE
LITERAL ENFORCEMENT WOULD BE UNREASONABLE AND OPPOSED TO THE PUBLIC
INTEREST.  THE LEGISLATURE, IN THE EXERCISE OF ITS EXTENSIVE AND
ACKNOWLEDGED POWER TO ACT FOR THE COMMON WELFARE, MAY FIND AS A FACT
THAT A SITUATION HAS ARISEN OF SUCH NOVELTY AND UNIQUENESS THAT
EXISTING LAW IS INCAPABLE OF PERFORMING ITS AVOWED FUNCTION - THE
PRESERVATION OF RELIGIOUS TEMPORALITIES FOR THE USE OF THEIR ORIGINAL
AND ACCUSTOMED BENEFICIARIES.  IF THE LEGISLATURE FIND AS A FACT THAT,
BECAUSE OF DRASTICALLY CHANGED CIRCUMSTANCES, THE ACCUSTOMED
BENEFICIARIES OF RELIGIOUS PROPERTIES ARE THUS THREATENED WITH THEIR
LOSS, AND IF THERE BE A BASIS FOR SUCH FINDING, WE PERCEIVE NO
CONSTITUTIONAL OBJECTION TO A LEGISLATIVE ATTEMPT TO TRACE AND
IDENTIFY, AS OF TODAY, THE AUTHENTIC GROUP ENTITLED TO THE
ADMINISTRATION OF SUCH PROPERTIES." 

FN13  302 N.Y., AT 13, 96 N.E.2D, AT 62: 

"THE CONTROL OF ALL PHASES OF RUSSIAN LIFE BY THE GOVERNMENT WAS NOT
AS APPARENT IN 1924 AS IT IS A QUARTER OF A CENTURY LATER AND ON THE
SURFACE, AT LEAST, THE CASE APPEARED TO BE A PROPER ONE FOR THE
APPLICATION OF THE RULE THAT IN AN ECCLESIASTICAL DISPUTE INVOLVING A
DENOMINATIONAL CHURCH, THE DECISION OF THE HIGHEST CHURCH JUDICATORIES
WILL BE ACCEPTED AS FINAL AND CONCLUSIVE BY THE CIVIL COURTS (TRUSTEES
OF PRESBYTERY OF N.Y. V. WESTMINSTER PRESBYT.  CHURCH, 222 N.Y. 305,
315; WATSON V. JONES, 13 WALL.  (U.S.)  679, 724-727; RELIGIOUS
CORPORATIONS LAW, SECS. 4, 5)." 

"  ...  WE FEEL WE MUST ACCEPT THE HISTORICAL STATEMENTS CONTAINED IN
THE DISSENTING OPINION OF MR. JUSTICE VAN VOORHIS, BELOW:  '  ...  IN
RECENT PUBLIC PRONOUNCEMENTS THE STATE DEPARTMENT, AND OUR
REPRESENTATIVES IN THE UNITED NATIONS, HAVE FREQUENTLY RECOGNIZED AND
DENOUNCED THE SUPPRESSION OF HUMAN RIGHTS AND BASIC LIBERTIES IN
RELIGION AS WELL AS IN OTHER ASPECTS OF LIFE, EXISTING IN SOVIET RUSSIA
AND IN ALL OF ITS SATELLITE STATES  ...  .'"  302 N.Y., AT 23, 96
N.E.2D, AT 68. 

FN14  SEE NOTE 10, SUPRA. 

FN15  "THE THIRD IS WHERE THE RELIGIOUS CONGREGATION OR
ECCLESIASTICAL BODY HOLDING THE PROPERTY IS BUT A SUBORDINATE MEMBER OF
SOME GENERAL CHURCH ORGANIZATION IN WHICH THERE ARE SUPERIOR
ECCLESIASTICAL TRIBUNALS WITH A GENERAL AND ULTIMATE POWER OF CONTROL
MORE OR LESS COMPLETE, IN SOME SUPREME JUDICATORY OVER THE WHOLE
MEMBERSHIP OF THAT GENERAL ORGANIZATION."  13 WALL.  679, 722-723. 

FN16  ZOLLMANN, AMERICAN CHURCH LAW (1933), C. 9.  E.G., SHEPARD V.
BARKLEY, 247 U.S. 1; BARKLEY V. HAYES, 208 F. 319, 326; MCGINNIS V.
WATSON, 41 PA. 9; MISSOURI EX REL. WATSON V. FARRIS, 45 MO. 183, 197
198; FIRST ENGLISH LUTHERAN CHURCH V. EVANGELICAL LUTHERAN SYNOD, 135
F.2D 701.  CF. GIBSON V. ARMSTRONG, 7 BEN.  MONROE (KY.)  481; GERMAN
REFORMED CHURCH V. COMMONWEALTH EX REL. SEIBERT, 3 PA. 282. 

FN17  "ONE OR TWO PROPOSITIONS WHICH SEEM TO ADMIT OF NO CONTROVERSY
ARE PROPER TO BE NOTICED IN THIS CONNECTION.  1.  BOTH BY THE ACT OF
THE KENTUCKY LEGISLATURE CREATING THE TRUSTEES OF THE CHURCH A BODY
CORPORATE, AND BY THE ACKNOWLEDGED RULES OF THE PRESBYTERIAN CHURCH,
THE TRUSTEES WERE THE MERE NOMINAL TITLE-HOLDERS AND CUSTODIANS OF THE
CHURCH PROPERTY, AND OTHER TRUSTEES WERE, OR COULD BE ELECTED BY THE
CONGREGATION, TO SUPPLY THEIR PLACES ONCE IN EVERY TWO YEARS.  2.  THAT
IN THE USE OF THE PROPERTY FOR ALL RELIGIOUS SERVICES OR ECCLESIASTICAL
PURPOSES, THE TRUSTEES WERE UNDER THE CONTROL OF THE CHURCH SESSION. 
3.  THAT BY THE CONSTITUTION OF ALL PRESBYTERIAN CHURCHES, THE SESSION,
WHICH IS THE GOVERNING BODY IN EACH, IS COMPOSED OF THE RULING ELDERS
AND PASTOR, AND IN ALL BUSINESS OF THE SESSION THE MAJORITY OF ITS
MEMBERS GOVERN, THE NUMBER OF ELDERS FOR EACH CONGREGATION BEING
VARIABLE."  ID., AT 720. 

FN18  WATSON V. AVERY, 2 BUSH (KY.)  332, 347 ET SEQ. 

"BUT WE HOLD THAT THE ASSEMBLY, LIKE OTHER COURTS, IS LIMITED IN ITS
AUTHORITY BY THE LAW UNDER WHICH IT ACTS; AND WHEN RIGHTS OF PROPERTY,
WHICH ARE SECURED TO CONGREGATIONS AND INDIVIDUALS BY THE ORGANIC LAW
OF THE CHURCH, ARE VIOLATED BY UNCONSTITUTIONAL ACTS OF THE HIGHER
CHURCH COURTS, THE PARTIES THUS AGGRIEVED ARE ENTITLED TO RELIEF IN THE
CIVIL COURTS, AS IN ORDINARY CASES OF INQUIRY RESULTING FROM THE
VIOLATION OF A CONTRACT, OR THE FUNDAMENTAL LAW OF A VOLUNTARY
ASSOCIATION."  ID., AT 349. 

FN19  COMPARE WATSON V. AVERY, N. 18, SUPRA, AT 349, WITH WATSON V.
JONES, SUPRA, AT 732 ET SEQ. 

FN20  THE DECISION HAS ENCOUNTERED VIVID AND STRONG CRITICISM FOR THE
BREADTH OF ITS STATEMENT THAT WHERE "A SUBJECT-MATTER OF DISPUTE,
STRICTLY AND PURELY ECCLESIASTICAL IN ITS CHARACTER," IS DECIDED, THE
CIVIL COURT MAY NOT EXAMINE THE CONCLUSION TO SEE WHETHER THE DECISION
EXCEEDS THE POWERS OF THE JUDICATORY.  ID., AT 733.  SEE ZOLLMANN,
AMERICAN CHURCH LAW (1933), C. 9, P. 291.  THE CRITICISM DOES NOT GO SO
FAR, HOWEVER, AS TO CONDEMN THE NONREVIEWABILITY OF QUESTIONS OF FAITH,
RELIGIOUS DOCTRINE AND ECCLESIASTICAL GOVERNMENT, WATSON V. JONES, AT
729, 732, WHEN WITHIN THE "EXPRESS OR IMPLIED STIPULATIONS" OF THE
AGREEMENT OF MEMBERSHIP.  ZOLLMAN, SUPRA, SECS. 310, 311, 315, 340. 

FN21  ID., AT 727.  SEE PP. 113, 114-115, SUPRA. 

FN22  BARKLEY V. HAYES, 208 F. 319, 334; SHERARD V. WALTON, 206 F.
562, 564; HELM V. ZARECOR, 213 F. 648, 657. 

FN23  GONZALEZ V. ARCHBISHOP, 280 U.S. 1, 16-17: 

"BECAUSE THE APPOINTMENT IS A CANONICAL ACT, IT IS THE FUNCTION OF
THE CHURCH AUTHORITIES TO DETERMINE WHAT THE ESSENTIAL QUALIFICATIONS
OF A CHAPLAIN ARE AND WHETHER THE CANDIDATE POSSESSES THEM.  IN THE
ABSENCE OF FRAUD, COLLUSION, OR ARBITRARINESS, THE DECISIONS OF THE
PROPER CHURCH TRIBUNALS ON MATTERS PURELY ECCLESIASTICAL, ALTHOUGH
AFFECTING CIVIL RIGHTS, ARE ACCEPTED IN LITIGATION BEFORE THE SECULAR
COURTS AS CONCLUSIVE, BECAUSE THE PARTIES IN INTEREST MADE THEM SO BY
CONTRACT OR OTHERWISE.  UNDER LIKE CIRCUMSTANCES, EFFECT IS GIVEN IN
THE COURTS TO THE DETERMINATIONS OF THE JUDICATORY BODIES ESTABLISHED
BY CLUBS AND CIVIL ASSOCIATIONS." 

SEE BRUNDAGE V. DEARDORF, 55 F. 839, WHERE TAFT, CIRCUIT JUDGE, IN
OVERRULING A DEMURRER, STATED: "EVEN IF THE SUPREME JUDICATORY HAS THE
RIGHT TO CONSTRUE THE LIMITATIONS OF ITS OWN POWER, AND THE CIVIL
COURTS MAY NOT INTERFERE WITH SUCH A CONSTRUCTION, AND MUST TAKE IT AS
CONCLUSIVE, WE DO NOT UNDERSTAND THE SUPREME COURT, IN WATSON V. JONES,
TO HOLD THAT AN OPEN AND AVOWED DEFIANCE OF THE ORIGINAL COMPACT, AND
AN EXPRESS VIOLATION OF IT, WILL BE TAKEN AS A DECISION OF THE SUPREME
JUDICATORY WHICH IS BINDING ON THE CIVIL COURTS."  P. 847. 

LATER THE CASE WAS CONSIDERED ON APPEAL BY THE CIRCUIT COURT OF
APPEALS; LURTON, CIRCUIT JUDGE, WRITING, THOUGHT THAT THE FACTS PROVEN
SHOWED CONCLUSIVELY THAT WATSON V. JONES DID CONTROL.  92 F. 214, 230. 

FN24  ST. NICHOLAS CATHEDRAL V. KEDROFF, 302 N.Y. 1, 30, 96 N.E.2D
56, 72; NOTE 12, SUPRA. 

FN25  PONCE V. ROMAN CATHOLIC CHURCH, 210 U.S. 296, 322. 

FN26  WATSON V. JONES, SUPRA; BARKLEY V. HAYES, 208 F. 319, 327,
AFFIRMED ON APPEAL, DUVALL V. SYNOD, 222 F. 669; SHEPARD V. BARKLEY,
247 U.S. 1. 

MR. JUSTICE FRANKFURTER, CONCURRING.* 

*JOINED BY MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, SEE POST, P.
126. 

LET ME PUT TO ONE SIDE THE QUESTION WHETHER IN OUR DAY A LEGISLATURE
COULD, CONSISTENTLY WITH DUE PROCESS, DISPLACE THE JUDICIAL PROCESS AND
DECIDE A PARTICULAR CONTROVERSY AFFECTING PROPERTY SO AS TO DECREE THAT
A NOT B OWNS IT OR IS ENTITLED TO ITS POSSESSION.  OBVIOUSLY A
LEGISLATURE WOULD NOT HAVE THAT POWER MERELY BECAUSE THE PROPERTY
BELONGS TO A CHURCH. 

IN ANY EVENT, THIS PROCEEDING RESTS ON A CLAIM WHICH CANNOT BE
DETERMINED WITHOUT INTERVENTION BY THE STATE IN A RELIGIOUS CONFLICT. 
ST. NICHOLAS CATHEDRAL IS NOT JUST A PIECE OF REAL ESTATE.  IT IS NO
MORE THAT THAN IS ST. PATRICK'S CATHEDRAL OR THE CATHEDRAL OF ST. JOHN
THE DIVINE.  A CATHEDRAL IS THE SEAT AND CENTER OF ECCLESIASTICAL
AUTHORITY.  ST. NICHOLAS CATHEDRAL IS AN ARCHIEPISCOPAL SEE OF ONE OF
THE GREAT RELIGIOUS ORGANIZATIONS.  WHAT IS AT STAKE HERE IS THE POWER
TO EXERCISE RELIGIOUS AUTHORITY.  THAT IS THE ESSENCE OF THIS
CONTROVERSY.  IT IS THAT EVEN THOUGH THE RELIGIOUS AUTHORITY BECOMES
MANIFEST AND IS EXERTED THROUGH AUTHORITY OVER THE CATHEDRAL AS THE
OUTWARD SYMBOL OF A RELIGIOUS FAITH.    THE JUDICIARY HAS HEEDED,
NATURALLY ENOUGH, THE MENACE TO A SOCIETY LIKE OURS OF ATTEMPTING TO
SETTLE SUCH RELIGIOUS STRUGGLES BY STATE ACTION.  AND SO, WHEN COURTS
ARE CALLED UPON TO ADJUDICATE DISPUTES WHICH, THOUGH GENERATED BY
CONFLICTS OF FAITH, MAY FAIRLY BE ISOLATED AS CONTROVERSIES OVER
PROPERTY AND THEREFORE WITHIN JUDICIAL COMPETENCE, THE AUTHORITY OF
COURTS IS IN STRICT SUBORDINATION TO THE ECCLESIASTICAL LAW OF A
PARTICULAR CHURCH PRIOR TO A SCHISM.  WATSON V. JONES, 13 WALL.  679. 
THIS VERY LIMITED RIGHT OF RESORT TO COURTS FOR DETERMINATION OF
CLAIMS, CIVIL IN THEIR NATURE, BETWEEN RIVAL PARTIES AMONG THE
COMMUNICANTS OF A RELIGIOUS FAITH IS MERELY ONE ASPECT OF THE DUTY OF
COURTS TO ENFORCE THE RIGHTS OF MEMBERS IN AN ASSOCIATION, TEMPORAL OR
RELIGIOUS, ACCORDING TO THE LAWS OF THAT ASSOCIATION.  SEE GONZALEZ V.
ARCHBISHOP, 280 U.S. 1, 16-17. 

LEGISLATURES HAVE NO SUCH OBLIGATION TO ADJUDICATE AND NO SUCH
POWER.  ASSUREDLY THEY HAVE NONE TO SETTLE CONFLICTS OF RELIGIOUS
AUTHORITY AND NONE TO DEFINE RELIGIOUS OBEDIENCE.  THESE ASPECTS OF
SPIRITUAL DIFFERENCES CONSTITUTE THE HEART OF THIS CONTROVERSY.  THE
NEW YORK LEGISLATURE DECREED THAT ONE PARTY TO THE DISPUTE AND NOT THE
OTHER SHOULD CONTROL THE COMMON CENTER OF DEVOTION.  IN DOING SO THE
LEGISLATURE EFFECTIVELY AUTHORIZED ONE PARTY TO GIVE RELIGIOUS
DIRECTION NOT ONLY TO ITS ADHERENTS BUT ALSO TO ITS OPPONENTS.  SEE ST.
NICHOLAS CATHEDRAL V. KEDROFF, 302 N.Y. 1, 24-29, 96 N.E.2D 56, 68-72. 

THE ARGUMENTS BY WHICH NEW YORK SEEKS TO JUSTIFY THIS INROAD INTO THE
REALM OF FAITH ARE ECHOES OF PAST ATTEMPTS AT SECULAR INTERVENTION IN
RELIGIOUS CONFLICTS.  IT IS SAID THAT AN IMPRESSIVE MAJORITY BOTH OF
THE LAITY AND OF THE PRIESTHOOD OF THE OLD LOCAL CHURCH NOW ADHERE TO
THE PARTY WHOSE CANDIDATE NEW YORK ENTHRONED, AS IT WERE, AS
ARCHBISHOP.  BE THAT AS IT MAY, IT IS NOT A FUNCTION OF CIVIL
GOVERNMENT UNDER OUR CONSTITUTIONAL SYSTEM TO ASSURE RULE TO ANY
RELIGIOUS BODY BY A COUNTING OF HEADS.  OUR CONSTITUTION DOES ASSURE
THAT ANYONE IS FREE TO WORSHIP ACCORDING TO HIS CONSCIENCE.  A
LEGISLATURE IS NOT FREE TO VEST IN A SCHISMATIC HEAD THE MEANS OF
ACTING UNDER THE AUTHORITY OF HIS OLD CHURCH, BY AFFORDING HIM THE
RELIGIOUS POWER WHICH THE USE AND OCCUPANCY OF ST. NICHOLAS CATHEDRAL
MAKE POSSIBLE. 

AGAIN, IT IS ARGUED THAT NEW YORK MAY PROTECT ITSELF FROM DANGERS
ATTRIBUTED TO SUBMISSION BY THE MOTHER CHURCH IN MOSCOW TO POLITICAL
AUTHORITY.  TO REJECT THIS CLAIM ONE DOES NOT HAVE TO INDULGE IN THE
TENDENCY OF LAWYERS TO CARRY ARGUMENTS TO THE EXTREME OF EMPTY FORMAL
LOGIC.  SCATTERED THROUGHOUT THE COUNTRY THERE ARE RELIGIOUS BODIES
WITH TIES TO VARIOUS COUNTRIES OF A WORLD IN TENSION - TENSION DUE IN
PART TO SHIFTING POLITICAL AFFILIATION AND ORIENTATION.  THE
CONSIDERATION WHICH PERMEATES THE COURT'S OPINION BELOW WOULD GIVE EACH
STATE THE RIGHT TO ASSESS THE CIRCUMSTANCES IN THE FOREIGN POLITICAL
ENTANGLEMENTS OF ITS RELIGIOUS BODIES THAT MAKE FOR DANGER TO THE
STATE, AND THE POWER, RESTING ON PLAUSIBLE LEGISLATIVE FINDINGS, TO
DIVEST SUCH BODIES OF SPIRITUAL AUTHORITY AND OF THE TEMPORAL PROPERTY
WHICH SYMBOLIZES IT. 

MEMORY IS SHORT BUT IT CANNOT BE FORGOTTEN THAT IN THE STATE OF NEW
YORK THERE WAS STRONG FEELING AGAINST THE TSARIST REGIME AT A TIME WHEN
THE RUSSIAN CHURCH WAS GOVERNED BY A PROCURATOR OF THE TSAR.  AND WHEN
MUSSOLINI EXACTED THE LATERAN AGREEMENT, ARGUMENT WAS NOT WANTING BY
THOSE FRIENDLY TO HER CLAIMS THAT THE CHURCH OF ROME WAS SUBJECTING
HERSELF TO POLITICAL AUTHORITY.  (FN1)  THE FEAR, PERHAPS NOT WHOLLY
GROUNDLESS, THAT THE LOYALTY OF ITS CITIZENS MIGHT BE DILUTED BY THEIR
ADHERENCE TO A CHURCH ENTANGLED IN ANTAGONISTIC POLITICAL INTERESTS,
REAPPEARS IN HISTORY AS THE GROUND FOR INTERFERENCE BY CIVIL GOVERNMENT
WITH RELIGIOUS ATTACHMENTS.  (FN2)  SUCH FEAR READILY LEADS TO
PERSECUTION OF RELIGIOUS BELIEFS DEEMED DANGEROUS TO RULING POLITICAL
AUTHORITY.  IT WAS ON THIS BASIS, AFTER ALL, THAT BISMARCK SOUGHT TO
DETACH GERMAN CATHOLICS FROM ROME BY A SERIES OF LAWS NOT TOO DIFFERENT
IN PURPORT FROM THAT BEFORE US TODAY.  (FN3)  THE LONG, UNEDIFYING
HISTORY OF THE CONTEST BETWEEN THE SECULAR STATE AND THE CHURCH IS
REPLETE WITH INSTANCES OF ATTEMPTS BY CIVIL GOVERNMENT TO EXERT
PRESSURE UPON RELIGIOUS AUTHORITY.  RELIGIOUS LEADERS HAVE OFTEN MADE
GESTURES OF ACCOMMODATION TO SUCH PRESSURES.  HISTORY ALSO INDICATES
THAT THE VITALITY OF GREAT WORLD RELIGIONS SURVIVED SUCH EFFORTS.  IN
ANY EVENT, UNDER OUR CONSTITUTION IT IS NOT OPEN TO THE GOVERNMENTS OF
THIS UNION TO REINFORCE THE LOYALTY OF THEIR CITIZENS BY DECIDING WHO
IS THE TRUE EXPONENT OF THEIR RELIGION. 

FINALLY, WE ARE TOLD THAT THE PRESENT MOSCOW PATRIARCHATE IS NOT THE
TRUE SUPERIOR CHURCH OF THE AMERICAN COMMUNICANTS.  THE VICISSITUDES OF
WAR AND REVOLUTION WHICH HAVE BESET THE MOSCOW PATRIARCHATE SINCE 1917
ARE SAID TO HAVE RESULTED IN A DISCONTINUITY WHICH DIVESTS THE PRESENT
PATRIARCH OF HIS AUTHORITY OVER THE AMERICAN CHURCH.  BOTH PARTIES TO
THE PRESENT CONTROVERSY AGREE THAT THE PRESENT PATRIARCH IS THE
LEGITIMATELY CHOSEN HOLDER OF HIS OFFICE, AND THE ACCOUNT OF THE
PROCEEDINGS AND PRONOUNCEMENTS OF THE AMERICAN SCHISMATIC GROUP SO
INDICATES.  EVEN WERE THERE DOUBT ABOUT THIS IT IS HARD TO SEE BY WHAT
WARRANT THE NEW YORK LEGISLATURE IS FREE TO SUBSTITUTE ITS OWN JUDGMENT
AS TO THE VALIDITY OF PATRIARCH ALEXI'S CLAIM AND TO DISREGARD
ACKNOWLEDGEMENT OF THE PRESENT PATRIARCH BY HIS COEQUALS IN THE EASTERN
CONFESSION, THE PATRIARCHS OF CONSTANTINOPLE, ALEXANDRIA, ANTIOCH, AND
JERUSALEM, AND BY RELIGIOUS LEADERS THROUGHOUT THE WORLD, INCLUDING THE
PRESENT ARCHBISHIP OF YORK.  (FN4) 

THESE CONSIDERATIONS UNDERMINE THE VALIDITY OF THE NEW YORK
LEGISLATION IN THAT IT ENTERS THE DOMAIN OF RELIGIOUS CONTROL BARRED TO
THE STATES BY THE FOURTEENTH AMENDMENT. 

FN1  THE ENCYCLOPEDIA BRITANNICA RECOUNTS THAT UNDER THE AGREEMENT
BETWEEN THE PAPAL SEE AND MUSSOLINI, "THE SUPREMACY OF THE STATE WAS
RECOGNIZED BY COMPELLING BISHOPS AND ARCHBISHOPS TO SWEAR LOYALTY TO
THE GOVERNMENT."  ENCYCLOPEDIA BRITANNICA:  "ANTICLERICALISM," 62, 62A
(1948 ED.). 

FN2  SUCH APPREHENSION, AT LEAST IN PART, SEEMS TO HAVE UNDERLAIN TWO
IMPORTANT RELIGIOUS CONTROVERSIES IN A NATION AS DEVOTED TO FREEDOM AS
GREAT BRITAIN AND AS RECENTLY AS A CENTURY AGO.  BOTH THE DISPUTE
GIVING RISE TO THE FREE CHURCH OF SCOTLAND APPEALS AND THE BRIEF BUT
VIGOROUS ANTI-CATHOLIC OUTBURST OF 1850 ARE NOT UNFAIRLY ATTRIBUTABLE
TO A CLAIM BY THE STATE OF COMPREHENSIVE LOYALTY, UNDEFLECTED BY THE
COMPETING CLAIMS OF RELIGIOUS FAITH.  SEE LASKI, STUDIES IN THE PROBLEM
OF SOVEREIGNTY, 27-68, 121-210.  SEE ALSO BUCHANAN, THE TEN YEARS'
CONFLICT (EDINBURGH, 1849); FREE CHURCH OF SCOTLAND V. OVERTOWN, 1904
A.C. 515; THE FREE CHURCH OF SCOTLAND APPEALS (ORR.  ED., EDINBURGH,
1904). 

FN3  REICHS-GESETZBLATT, 1871, P. 442; REICHS-GESETZBLATT, 1872, P.
253; REICHS-GESETZBLATT, 1874, P. 43; REICHS-GESETZBLATT, 1876, P. 28;
5 GESETZ-SAMMLUNG FUR DIE KONIGLICH PREUSSISCHEN STAATEN 154, 221, 223,
225, 228, 337, 342; 6 ID., AT 30, 38, 40, 75, 170; 7 ID., AT 291. 
THESE LAWS HAVE BEEN THUS SUMMARIZED:  "THE FALK LAWS ARE AN ATTEMPT TO
INSIST ON THE UNIVERSAL PARAMOUNTCY OF GERMAN INFLUENCES.  THE
EXPULSION OF THE JESUITS REMOVED AN ORDER WHICH HE (BISMARCK) BELIEVED
TO BE CONCERNED WITH THE PROMOTION OF POLISH INTERESTS.  THE REFUSAL OF
BISHOPRICS TO ANY SAVE A GERMAN WHO HAS FOLLOWED A COURSE OF STUDY
APPROVED BY THE GOVERNMENT HAS A CLEAR PURPORT  ...  OF PURGING THE
CATHOLIC EPISCOPATE OF MEN NOT LIKELY TO BE IN SYMPATHY WITH GERMAN
IDEALS  ...  .  THE TWENTY-FOURTH ARTICLE WENT EVEN FURTHER AND GAVE
THE STATE THE RIGHT OF INTERFERENCE WITH ECCLESIASTICAL FUNCTIONS WHERE
IT DEEMED THEM IMPROPERLY PERFORMED  ...  .  THE LAW OF THE TWENTIETH
OF MAY, 1874, VIRTUALLY HANDED OVER THE CONTROL OF VACANT BISHOPRICS TO
THE STATE  ...  .  CATHOLIC CHURCHES ON PRUSSIAN SOIL WERE HANDED OVER
TO THE OLD CATHOLICS (THOSE REFUSING TO ADHERE TO THE NEWLY-PROMULGATED
DOGMA OF PAPAL INFALLIBILITY) IN SUCH PARISHES AS THOSE IN WHICH THE
MAJORITY CONSISTED OF THEIR SYMPATHISERS, FOR CERTAIN HOURS OF THE DAY
...  ."  LASKI, OP. CIT. SUPRA, NOTE 2, AT 256-258.  BISMARCK'S
KULTURKAMPF, OF WHICH THESE LAWS WERE A PART, IS FULLY DISCUSSED IN
GOYAU, BISMARCK ET L'EGLISE.  A FULL TEXT OF THE LAWS MAY BE FOUND IN
THE APPENDIX TO THAT WORK. 

FN4  SEE GARBETT, IN AN AGE OF REVOLUTION, 207-213; NIEMOLLER, WHY I
WENT TO MOSCOW, THE CHRISTIAN CENTURY, MARCH 19, 1952, P. 338. 

MR. JUSTICE BLACK AGREES WITH THIS OPINION ON THE BASIS OF HIS VIEW
THAT THE FOURTEENTH AMENDMENT MAKES THE FIRST AMENDMENT APPLICABLE TO
THE STATES. 

MR. JUSTICE DOUGLAS, WHILE CONCURRING IN THE OPINION OF THE COURT,
ALSO JOINS THIS OPINION. 

MR. JUSTICE JACKSON, DISSENTING. 

NEW YORK COURTS HAVE DECIDED AN ORDINARY EJECTMENT ACTION INVOLVING
POSSESSION OF NEW YORK REAL ESTATE IN FAVOR OF THE PLAINTIFF, A
CORPORATION ORGANIZED UNDER THE RELIGIOUS CORPORATIONS LAW OF NEW YORK
UNDER THE NAME "SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHODOX CHURCH
IN NORTH AMERICA."  ADMITTEDLY, IT HOLDS, AND SINCE 1925 HAS HELD,
LEGAL TITLE TO THE CATHEDRAL PROPERTY.  THE NEW YORK COURT OF APPEALS
DECIDED THAT IT ALSO HAS THE LEGAL RIGHT TO ITS POSSESSION AND
CONTROL. 

THE APPELLANT BENJAMIN'S DEFENSE AGAINST THIS OWNER'S DEMAND FOR
POSSESSION AND THE BASIS OF HIS CLAIMED RIGHT TO ENJOY POSSESSION OF
PROPERTY HE ADMITTEDLY DOES NOT OWN IS SET FORTH IN HIS ANSWER TO THE
EJECTMENT SUIT IN THESE WORDS:  "SAID PREMISES PURSUANT TO THE ABOVE
RULES OF THE RUSSIAN ORTHODOX CHURCH ARE HELD IN TRUST FOR THE BENEFIT
OF THE ACCREDITED ARCHBISHOP OF THE SAID ARCHDIOCESE, TO BE POSSESSED,
OCCUPIED AND USED BY SAID ARCHBISHOP AS HIS RESIDENCE, AS A PLACE FOR
HOLDING RELIGIOUS SERVICES, AND OTHER PURPOSES RELATED TO HIS OFFICE
AND AS THE SEAT AND HEADQUARTERS FOR THE ADMINISTRATION, BY HIM, OF THE
AFFAIRS OF THE ARCHDIOCESE BOTH TEMPORAL AND SPIRITUAL."  AND, SAYS THE
APPELLANT BENJAMIN, HE IS THAT ARCHBISHOP.  THESE ALLEGATIONS ARE
DENIED, AND THEY DEFINE THE ISSUES AS TENDERED TO THE STATE COURTS. 

I GREATLY OVERSIMPLIFY THE HISTORY OF THIS CONTROVERSY TO INDICATE
ITS NATURE RATHER THAN TO PROVE ITS MERITS.  THIS CATHEDRAL WAS
INCORPORATED AND BUILT IN THE ERA OF THE CZAR, UNDER THE REGIME OF A
STATE-RIDDEN CHURCH IN A CHURCH-RIDDEN STATE.  THE BOLSHEVIK REVOLUTION
MAY HAVE FREED THE STATE FROM THE GRIP OF THE CHURCH, BUT IT DID NOT
FREE THE CHURCH FROM THE GRIP OF THE STATE.  IT ONLY BROUGHT TO THE TOP
A NEW MASTER FOR A CAPTIVE AND SUBMISSIVE ECCLESIASTICAL
ESTABLISHMENT.  BY 1945, THE MOSCOW PATRIARCHY HAD BEEN REFORMED AND
MANNED UNDER THE SOVIET REGIME AND IT SOUGHT TO RE-ESTABLISH IN OTHER
COUNTRIES ITS PREREVOLUTIONARY CONTROL OF CHURCH PROPERTY AND ITS SWAY
OVER THE MINDS OF THE RELIGIOUS.  AS THE COURT'S OPINION POINTS OUT, IT
DEMANDED OF THE RUSSIAN CHURCH IN AMERICA, AMONG OTHER THINGS, THAT IT
ABSTAIN "FROM POLITICAL ACTIVITIES AGAINST THE U.S.S.R."  THE AMERICAN
CATHEDRAL GROUP, ALONG WITH OTHERS, REFUSED SUBMISSION TO THE
REPRESENTATIVE OF THE MOSCOW PATRIARCH, WHOM IT REGARDED AS AN ARM OF
THE SOVIET GOVERNMENT.  THUS, WE HAVE AN OSTENSIBLE RELIGIOUS SCHISM
WITH DECIDED POLITICAL OVERTONES. 

IF THE FOURTEENTH AMENDMENT IS TO BE INTERPRETED TO LEAVE ANYTHING TO
THE COURTS OF A STATE TO DECIDE WITHOUT OUR INTERFERENCE, I SHOULD
SUPPOSE IT WOULD BE CLAIMS TO OWNERSHIP OR POSSESSION OF REAL ESTATE
WITHIN ITS BORDERS AND THE VEXING TECHNICAL QUESTIONS PERTAINING TO THE
CREATION, INTERPRETATION, TERMINATION, AND ENFORCEMENT OF USES AND
TRUSTS, EVEN THOUGH THEY ARE FOR RELIGIOUS AND CHARITABLE PURPOSES. 
THIS CONTROVERSY, I BELIEVE, IS A MATTER FOR SETTLEMENT BY STATE LAW
AND NOT WITHIN THE PROPER PROVINCE OF THIS COURT. 

I. 

AS I READ THE PREVAILING OPINIONS, THE COURT ASSUMES THAT SOME
TRANSFER OF CONTROL HAS BEEN ACCOMPLISHED BY LEGISLATION WHICH RESULTS
IN A DENIAL OF DUE PROCESS.  THIS, OF COURSE, WOULD RAISE A QUESTION OF
DEPRIVATION OF PROPERTY, NOT OF LIBERTY, WHILE ONLY THE LATTER ISSUE IS
RAISED BY THE PARTIES.  AND IT COULD BE SUSTAINED ONLY BY A FINDING BY
US THAT THE LEGISLATION WORKED A TRANSFER RATHER THAN A CONFIRMATION OF
PROPERTY RIGHTS.  THE COURT OF APPEALS SEEMS TO HAVE REGARDED THE
STATUTE MERELY AS A LEGISLATIVE REAFFIRMATION OF PRINCIPLE THE COURT
WOULD FIND TO BE CONTROLLING IN ITS ABSENCE. 

BUT THIS COURT APPARENTLY THINKS THAT BY MERE ENACTMENT OF THE
STATUTE THE LEGISLATURE INVADED A FIELD OF ACTION RESERVED TO THE
JUDICIARY.  HOWEVER DESIRABLE WE MAY THINK A RIGID SEPARATION OF POWERS
TO BE (AND I, FOR ONE, THINK IT IS BASIC IN THE FEDERAL GOVERNMENT), I
DO NOT THINK THE FOURTEENTH AMENDMENT UNDERTAKES TO CONTROL
DISTRIBUTION OF POWERS WITHIN THE STATES.  AT ALL EVENTS, I DO NOT
THINK WE ARE WARRANTED IN HOLDING THAT NEW YORK MAY NOT ENACT THIS
LEGISLATION IN QUESTION, WHICH IS IN FORM AND IN SUBSTANCE AN AMENDMENT
OF ITS RELIGIOUS CORPORATIONS LAW. 

NOTHING IN NEW YORK LAW REQUIRED THIS DENOMINATION TO INCORPORATE ITS
CATHEDRAL.  THE RELIGIOUS CORPORATIONS LAW OF THE STATE EXPRESSLY
RECOGNIZES UNINCORPORATED CHURCHES (SEC. 2) AND UNDERTAKES NO
REGULATION OF THEM OR THEIR AFFAIRS.  BUT THIS DENOMINATION WANTED THE
ADVANTAGES OF A CORPORATE CHARTER FOR ITS CATHEDRAL, TO OBTAIN IMMUNITY
FROM PERSONAL LIABILITY AND OTHER BENEFITS.  THIS STATUTE DOES NOT
INTERFERE WITH RELIGIOUS FREEDOM BUT FURTHERS IT.  IF THEY ELECT TO
COME UNDER IT, THE STATUTE MAKES SEPARATE PROVISION FOR EACH OF MANY
DENOMINATIONS WITH CORPORATE CONTROLS APPROPRIATE TO ITS OWN
ECCLESIASTICAL ORDER.  WHEN IT SOUGHT THE PRIVILEGE OF INCORPORATION
UNDER THE NEW YORK LAW APPLICABLE TO ITS DENOMINATION, IT SEEMS TO ME
THAT THIS CATHEDRAL AND ALL CONNECTED WITH ITS TEMPORAL AFFAIRS WERE
SUBMITTED TO NEW YORK LAW.    AS A CONSEQUENCE OF THIS COURT'S DICISION
IN DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518, THE CONSTITUTION OF
NEW YORK SINCE 1846 HAS AUTHORIZED THE LEGISLATURE TO CREATE
CORPORATIONS BY GENERAL LAWS AND SPECIAL ACTS, SUBJECT, HOWEVER, TO A
RESERVATION THAT ALL SUCH ACTS "MAY BE ALTERED FROM TIME TO TIME OR
REPEALED."  NEW YORK CONST., ART. X, SEC. 1.  THAT CONDITION BECOMES A
PART OF EVERY CORPORATE CHARTER SUBSEQUENTLY GRANTED BY NEW YORK.  LORD
V. EQUITABLE LIFE ASSURANCE SOCIETY, 194 N.Y. 212, 87 N.E. 443; PEOPLE
V. GASS, 190 N.Y. 323, 83 N.E. 64; PRATT INSTITUTE V. NEW YORK, 183
N.Y. 151, 75 N.E. 1119. 

WHAT HAS BEEN DONE HERE, AS I SEE IT, IS TO EXERCISE THIS RESERVED
POWER WHICH PERMITS THE STATE TO ALTER CORPORATE CONTROLS IN RESPONSE
TO THE LESSONS OF EXPERIENCE.  OF COURSE, THE POWER IS NOT UNLIMITED
AND COULD BE SO EXERCISED AS TO DEPRIVE ONE OF PROPERTY WITHOUT DUE
PROCESS OF LAW.  BUT, I DO NOT THINK WE CAN SAY THAT A LEGISLATIVE
APPLICATION OF A PRINCIPLE SO WELL ESTABLISHED IN OUR COMMON LAW AS THE
CY-PRES DOCTRINE IS BEYOND THE POWERS RESERVED BY THE NEW YORK
CONSTITUTION. 

               II. 

THE COURT HOLDS, HOWEVER, THAT THE STATE CANNOT EXERCISE ITS RESERVED
POWER TO CONTROL THIS PROPERTY WITHOUT INVADING RELIGIOUS FREEDOM,
BECAUSE IT IS A CATHEDRAL AND DEVOTED TO RELIGIOUS USES.  I FORBEAR
DISCUSSION OF THE EXTENT TO WHICH RESTRAINTS IMPOSED UPON CONGRESS BY
THE FIRST AMENDMENT ARE TRANSFERRED AGAINST THE STATE BY THE FOURTEENTH
AMENDMENT BEYOND SAYING THAT I CONSIDER THAT THE SAME DIFFERENCES WHICH
APPLY TO FREEDOM OF SPEECH AND PRESS (SEE DISSENTING OPINION IN
BEAUHARNAIS V. ILLINOIS, 343 U.S. 250, 287) ARE APPLICABLE TO QUESTIONS
OF FREEDOM OF RELIGION AND SEPARATION OF CHURCH AND STATE. 

IT IS IMPORTANT TO OBSERVE WHAT NEW YORK HAS NOT DONE IN THIS CASE. 
IT HAS NOT HELD THAT BENJAMIN MAY NOT ACT AS ARCHBISHOP OR BE REVERED
AS SUCH BY ALL WHO WILL FOLLOW HIM.  IT HAS NOT HELD THAT HE MAY NOT
HAVE A CATHEDRAL.  INDEED, I THINK NEW YORK WOULD AGREE THAT NO ONE IS
MORE IN NEED OF SPIRITUAL GUIDANCE THAN THE SOVIET FACTION.  IT HAS
ONLY HELD THAT THIS CLERIC MAY NOT HAVE A PARTICULAR CATHEDRAL WHICH,
UNDER NEW YORK LAW, BELONGS TO OTHERS.  IT HAS NOT INTERFERED WITH HIS
OR ANYONE'S EXERCISE OF HIS RELIGION.  NEW YORK HAS NOT OUTLAWED THE
SOVIET-CONTROLLED SECT NOR FORBIDDEN IT TO EXERCISE ITS AUTHORITY OR
TEACH ITS DOGMA IN ANY PLACE WHATSOEVER EXCEPT ON THIS PIECE OF
PROPERTY OWNED AND RIGHTFULLY POSSESSED BY THE CATHEDRAL CORPORATION. 

THE FACT THAT PROPERTY IS DEDICATED TO A RELIGIOUS USE CANNOT, IN MY
OPINION, JUSTIFY THE COURT IN SUBLIMATING AN ISSUE OVER PROPERTY RIGHTS
INTO ONE OF DEPRIVATION OF RELIGIOUS LIBERTY WHICH ALONE WOULD BRING IN
THE RELIGIOUS GUARANTIES OF THE FIRST AMENDMENT.  I ASSUME NO ONE WOULD
PRETEND THAT THE STATE CANNOT DECIDE A CLAIM OF TRESPASS, LARCENY,
CONVERSION, BAILMENT OR CONTRACT, WHERE THE PROPERTY INVOLVED IS THAT
OF A RELIGIOUS CORPORATION OR IS PUT TO RELIGIOUS USE, WITHOUT INVADING
THE PRINCIPLE OF RELIGIOUS LIBERTY. 

OF COURSE, POSSESSION OF THE PROPERTY WILL HELP EITHER SIDE THAT
OBTAINS IT TO MAINTAIN ITS PRESTIGE AND TO CONTINUE OR EXTEND ITS SWAY
OVER THE MINDS AND SOULS OF THE DEVOUT.  SO WOULD POSSESSION OF A BANK
ACCOUNT, AN INCOME-PRODUCING OFFICE BUILDING, OR ANY OTHER VALUABLE
PROPERTY.  BUT IF BOTH CLAIMANTS ARE RELIGIOUS CORPORATIONS OR
PERSONALITIES, CAN NOT THE STATE DECIDE THE ISSUES THAT ARISE OVER
OWNERSHIP AND POSSESSION WITHOUT INVADING THE RELIGIOUS FREEDOM OF ONE
OR THE OTHER OF THE PARTIES? 

THUS, IF THE AMERICAN GROUP, WHICH OWNS THE TITLE TO THE CATHEDRAL,
HAD BY FORCE BARRED BENJAMIN FROM ENTERING IT PHYSICALLY, WOULD THE
COURT SAY IT WAS AN INTERFERENCE WITH RELIGIOUS FREEDOM TO ENTERTAIN
AND DECIDE HIS EJECTMENT ACTION?  IF STATE COURTS ARE TO DECIDE SUCH
CONTROVERSIES AT ALL INSTEAD OF LEAVING THEM TO BE SETTLED BY A SHOW OF
FORCE, IS IT CONSTITUTIONAL TO DECIDE FOR ONLY ONE SIDE OF THE
CONTROVERSY AND UNCONSTITUTIONAL TO DECIDE FOR THE OTHER?  IN EITHER
CASE, THE RELIGIOUS FREEDOM OF ONE SIDE OR THE OTHER IS IMPAIRED IF THE
TEMPORAL GOODS THEY NEED ARE WITHHELD OR TAKEN FROM THEM. 

AS I HAVE EARLIER POINTED OUT, THE SOVIET ECCLESIAST'S CLAIM, DENIAL
OF WHICH IS SAID TO BE CONSTITUTIONAL ERROR, IS NOT THAT THIS NEW YORK
PROPERTY IS IMPRESSED WITH A TRUST BY VIRTUE OF NEW YORK LAW.  THE
CLAIM IS THAT IT IS IMPRESSED WITH A TRUST BY VIRTUE OF THE RULES OF
THE RUSSIAN ORTHODOX CHURCH.  THIS COURT SO HOLDS. 

I SHALL NOT UNDERTAKE TO WALLOW THROUGH THE COMPLEX, OBSCURE AND
FRAGMENTARY DETAILS OF SECULAR AND ECCLESIASTICAL HISTORY, THEOLOGY,
AND CANON LAW IN WHICH THIS CASE IS SMOTHERED.  TO ME, WHATEVER THE
CANON LAW IS FOUND TO BE AND WHOEVER IS THE RIGHTFUL HEAD OF THE MOSCOW
PATRIARCHATE, I DO NOT THINK NEW YORK LAW MUST YIELD TO THE AUTHORITY
OF A FOREIGN AND UNFRIENDLY STATE MASQUERADING AS A SPIRITUAL
INSTITUTION.  (SEE "THE SOVIET PROPAGANDA PROGRAM," STAFF STUDY NO. 3,
SENATE SUBCOMMITTEE ON OVERSEAS INFORMATION PROGRAMS OF THE UNITED
STATES, 82D CONG., 2D SESS.) 

I HAVE SUPPOSED THAT A STATE OF THIS UNION WAS ENTIRELY FREE TO MAKE
ITS OWN LAW, INDEPENDENTLY OF ANY FOREIGN-MADE LAW, EXCEPT AS THE FULL
FAITH AND CREDIT CLAUSE OF THE CONSTITUTION MIGHT REQUIRE DEFERENCE TO
THE LAW OF A SISTER STATE OR THE SUPREMACY CLAUSE REQUIRE SUBMISSION TO
FEDERAL LAW.  I DO NOT SEE HOW ONE CAN SPELL OUT OF THE PRINCIPLES OF
SEPARATION OF CHURCH AND STATE A DOCTRINE THAT A STATE SUBMIT PROPERTY
RIGHTS TO SETTLEMENT BY CANON LAW.  IF THERE IS ANY RELEVANT INFERENCE
TO BE DRAWN, I SHOULD THINK IT WOULD BE TO THE CONTRARY, THOUGH I SEE
NO OBSTACLE TO THE STATE ALLOWING ECCLESIASTICAL LAW TO GOVERN IN SUCH
A SITUATION IF IT SEES FIT.  I SHOULD INFER THAT FROM THE TREND OF SUCH
DECISIONS AS ERIE R. CO. V. TOMPKINS, 304 U.S. 64; KLAXON CO. V.
STENTOR ELECTRIC MFG. CO., 313 U.S. 487; GRIFFIN V. MCCOACH, 313 U.S.
498. 

THE ONLY GROUND PRESSED UPON THIS APPEAL IS THAT THE JUDGMENT BELOW
VIOLATES THE RELIGIOUS FREEDOM GUARANTEED BY THE FOURTEENTH AMENDMENT. 
I FIND THIS CONTENTION SO INSUBSTANTIAL THAT I WOULD DISMISS THE
APPEAL.  WHETHER NEW YORK HAS ARRIVED AT THE CORRECT SOLUTION OF THIS
QUESTION IS A MATTER ON WHICH ITS OWN JUDGES HAVE DISAGREED.  BUT THEY
HAVE DISAGREED WITHIN THE AREA WHICH IS COMMITTED TO THEM FOR AGREEMENT
OR DISAGREEMENT AND I FIND NOTHING WHICH WARRANTS OUR INVADING THEIR
JURISDICTION. 
..END :














MANDOLI V. ACHESON 344 U.S. 133 


NO. 15.  ARGUED OCTOBER 17, 1952 - DECIDED NOVEMBER 24, 1952 - 90 U.S.
APP. D.C. 1121, 193 F.2D 920, REVERSED. 


1.  UNDER THE EXPATRIATION ACT OF 1907, A UNITED STATES CITIZEN BY
BIRTH WHO BY FOREIGN LAW DERIVES FROM HIS PARENTS CITIZENSHIP OF A
FOREIGN NATION HELD NOT TO HAVE LOST HIS UNITED STATES CITIZENSHIP BY
FOREIGN RESIDENCE LONG CONTINUED AFTER ATTAINING HIS MAJORITY.  PP. 135
139. 

(A)  IN SUCH CASE THE NATIVE-BORN CITIZEN, BY CONTINUING TO RESIDE IN
THE FOREIGN COUNTRY AFTER ATTAINING HIS MAJORITY, CANNOT BE DEEMED TO
HAVE ELECTED BETWEEN HIS DUAL CITIZENSHIPS IN FAVOR OF THAT OF THE
FOREIGN COUNTRY; AND, WHEN HE ATTAINED HIS MAJORITY, HE WAS UNDER NO
STATUTORY DUTY TO MAKE AN ELECTION AND TO RETURN TO THIS COUNTRY FOR
PERMANENT RESIDENCE IF HE ELECTED UNITED STATES CITIZENSHIP.  PP. 135
139. 

(B)  PERKINS V. ELG, 307 U.S. 325, IS NOT TO THE CONTRARY.  PP. 138
139. 

(C)  THE DIGNITY OF CITIZENSHIP WHICH THE UNITED STATES CONSTITUTION
CONFERS AS A BIRTHRIGHT UPON EVERY PERSON BORN WITHIN ITS PROTECTION IS
NOT TO BE WITHDRAWN OR EXTINGUISHED BY THE COURTS EXCEPT PURSUANT TO A
CLEAR STATUTORY MANDATE.  P. 139. 

2.  ONE OF THE GROUNDS OF DECISION RELIED ON BY THE DISTRICT COURT,
BASED ON THE CITIZEN'S HAVING SERVED IN THE ARMY OF THE FOREIGN COUNTRY
AND TAKEN AN OATH OF ALLEGIANCE TO THAT COUNTRY, WAS ABANDONED BY THE
GOVERNMENT, THE ATTORNEY GENERAL HAVING RULED THAT SUCH SERVICE AND
OATH HAD BEEN TAKEN UNDER LEGAL COMPULSION AMOUNTING TO DURESS.  P.
135. 

MANDOLI V. ACHESON, SECRETARY OF STATE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

IN AN ACTION BROUGHT BY PETITIONER TO ESTABLISH HIS CITIZENSHIP, THE
DISTRICT COURT GAVE JUDGMENT AGAINST HIM.  THE COURT OF APPEALS
AFFIRMED.  90 U.S. APP. D.C. 1121, 193 F.2D 920.  THIS COURT GRANTED
CERTIORARI.  343 U.S. 976.  REVERSED, P. 139. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS BUT A SINGLE QUESTION, UPON WHICH PETITIONER AND
THE GOVERNMENT ARE SUBSTANTIALLY AGREED THAT THE JUDGMENT OF THE COURT
OF APPEALS SHOULD BE REVERSED.  (FN1)  DOES A UNITED STATES CITIZEN BY
BIRTH WHO BY FOREIGN LAW DERIVES FROM HIS PARENTS CITIZENSHIP OF A
FOREIGN NATION LOSE HIS UNITED STATES CITIZENSHIP BY FOREIGN RESIDENCE
LONG CONTINUED AFTER ATTAINING HIS MAJORITY? 

PETITIONER MANDOLI WAS BORN IN THIS COUNTRY, OF UNNATURALIZED ITALIAN
PARENTS.  THESE CIRCUMSTANCES MADE HIM A CITIZEN OF THE UNITED STATES
BY VIRTUE OF OUR CONSTITUTION AND A NATIONAL OF ITALY BY VIRTUE OF
ITALIAN LAW.  WHILE HE WAS A SUCKLING, HIS PARENTS RETURNED TO ITALY
TAKING HIM WITH THEM.  AT ABOUT THE AGE OF FIFTEEN, HE SOUGHT TO COME
TO THE UNITED STATES; BUT PERMISSION WAS REFUSED BY THE AMERICAN CONSUL
AT PALERMO UPON THE GROUND THAT HE WAS TOO YOUNG TO TAKE THE JOURNEY
UNACCOMPANIED. 

IN 1931, MANDOLI SAW BRIEF SERVICE IN THE ITALIAN ARMY.  IN 1937,
BEING 29 OR 30 YEARS OF AGE, HE ATTEMPTED TO COME TO THE UNITED STATES,
BUT WAS REJECTED BECAUSE OF SUCH ARMY SERVICE.  HE RENEWED THE EFFORT
IN 1944, WITH THE SAME RESULT.  IN 1948, HE WAS GRANTED A CERTIFICATE
OF IDENTITY WHICH PERMITTED HIM TO ENTER THE UNITED STATES FOR
PROSECUTION OF AN ACTION TO ESTABLISH HIS CITIZENSHIP. 

JUDGMENT IN THE DISTRICT COURT WENT AGAINST HIM ON THE GROUND THAT
EXPATRIATION HAD RESULTED FROM TWO CAUSES:  FIRST, CONTRARY TO HIS
CONTENTIONS, IT FOUND THAT HIS SERVICE IN THE ITALIAN ARMY WAS
VOLUNTARY AND THAT HE THEN TOOK AN OATH OF ALLEGIANCE TO THE KING OF
ITALY; SECOND, THAT HE CONTINUED TO RESIDE IN ITALY AFTER ATTAINING HIS
MAJORITY, THEREBY ELECTING BETWEEN HIS DUAL CITIZENSHIPS IN FAVOR OF
THAT OF ITALY.  (FN2) 

THE GOVERNMENT ABANDONED THE FIRST GROUND BECAUSE THE ATTORNEY
GENERAL RULED THAT SUCH SERVICE IN THE ITALIAN ARMY BY ONE SIMILARLY
SITUATED COULD "ONLY BE REGARDED AS HAVING BEEN TAKEN UNDER LEGAL
COMPULSION AMOUNTING TO DURESS."  HE SAID, "THE CHOICE OF TAKING THE
OATH OR VIOLATING THE LAW WAS, FOR A SOLDIER IN THE ARMY OF FASCIST
ITALY, NO CHOICE AT ALL."  (FN3)  THE COURT OF APPEALS, HOWEVER,
RELYING LARGELY ON PERKINS V. ELG, 307 U.S. 325, AFFIRMED UPON THE
GROUND THAT FAILURE TO RETURN TO THE UNITED STATES UPON THE ATTAINMENT
OF HIS MAJORITY OPERATED TO EXTINGUISH PETITIONER'S AMERICAN
CITIZENSHIP.  (FN4)  WE CONCLUDE THAT MANDOLI HAS NOT LOST HIS
CITIZENSHIP. 

IT WOULD BE AS EASY AS IT WOULD BE UNREWARDING TO POINT OUT CONFLICT
IN PRECEPT AND CONFUSION IN PRACTICE ON THIS SIDE OF THE ATLANTIC,
WHERE IDEAS OF NATIONALITY AND EXPATRIATION WERE IN FERMENT DURING THE
WHOLE NINETEENTH CENTURY.  RECEPTION OF THE COMMON LAW CONFRONTED
AMERICAN COURTS WITH A DOCTRINE THAT A NATIONAL ALLEGIANCE INTO WHICH
ONE WAS BORN COULD BE RENOUNCED ONLY WITH CONSENT OF HIS SOVEREIGN. 
EUROPEAN RULERS, LOSING SUBJECTS (PARTICULARLY SEAMEN) TO THE NEW
WORLD, ADHERED FIERCELY TO THE OLD DOCTRINE.  ON THE OTHER HAND, THE
UNITED STATES, PROSPERING FROM THE MIGRANT'S FREEDOM OF CHOICE, BECAME
CHAMPION OF THE INDIVIDUAL'S RIGHT TO EXPATRIATE HIMSELF, FOR WHICH IT
CONTENDED IN DIPLOMACY AND FOUGHT BY LAND AND SEA.  HOWEVER, THIS
PERSONAL FREEDOM OF EXPATRIATION WAS NOT ALWAYS RECOGNIZED BY OUR OWN
COURTS, BECAUSE OF THEIR DEFERENCE TO COMMON-LAW PRECEDENT.  FINALLY,
CONGRESS, BY THE ACT OF JULY 27, 1868, DECLARED THAT "THE RIGHT OF
EXPATRIATION IS A NATURAL AND INHERENT RIGHT OF ALL PEOPLE,
INDISPENSABLE TO THE ENJOYMENT OF THE RIGHTS OF LIFE, LIBERTY, AND THE
PURSUIT OF HAPPINESS" AND THAT "ANY DECLARATION, INSTRUCTION, OPINION,
ORDER, OR DECISION OF ANY OFFICERS OF THIS GOVERNMENT WHICH DENIES,
RESTRICTS, IMPAIRS, OR QUESTIONS THE RIGHT OF EXPATRIATION, IS HEREBY
DECLARED INCONSISTENT WITH THE FUNDAMENTAL PRINCIPLES OF THIS
GOVERNMENT."  (FN5) 

BUT THIS STATUTE LEFT UNANSWERED MANY QUESTIONS AS TO THE OVERT ACTS
THAT WOULD EFFECT A VOLUNTARY EXPATRIATION BY OUR OWN CITIZENS OR WOULD
CAUSE AN INVOLUNTARY FORFEITURE OF CITIZENSHIP.  PRIOR TO 1907, COURTS
AND ADMINISTRATORS WERE LEFT TO DEVISE THEIR OWN ANSWERS. 

PREPARATORY TO LEGISLATIVE ACTION ON THE SUBJECT, CONGRESS SOUGHT AND
RECEIVED A REPORT OF A SPECIAL CITIZENSHIP BOARD.  REVIEWING JUDICIAL
DECISIONS, THIS REPORT CONCLUDED THAT THE COURTS RECOGNIZED WELL
ESTABLISHED DOCTRINES OF ELECTION IN CASES DEALING WITH RIGHTS OF
PERSONS WITH DUAL CITIZENSHIP.  THIS BOARD RECOMMENDED THAT CONGRESS
FOLLOW WHAT IT ASSUMED TO BE ESTABLISHED DECISIONAL LAW AND ENACT,
AMONG OTHER THINGS, THAT EXPATRIATION BE ASSUMED AS TO ANY CITIZEN WHO
BECAME DOMICILED IN A FOREIGN STATE, WITH A REBUTTABLE PRESUMPTION OF
FOREIGN DOMICILE FROM FIVE YEARS OF RESIDENCE IN A FOREIGN STATE. 
(FN6)  THIS WAS PROPOSED AS TO ALL CITIZENS AND NOT MERELY THOSE
POSSESSING DUAL CITIZENSHIP.  CONGRESS, HOWEVER, INSTEAD OF ACCEPTING
THIS BROAD DOCTRINE OF EXPATRIATION, BY THE EXPATRIATION ACT OF 1907
LIMITED THE PRESUMPTION OF EXPATRIATION FROM FOREIGN RESIDENCE TO THE
CASE OF NATURALIZED BUT NOT OF NATIVE-BORN CITIZENS.  (FN7) 

IF PETITIONER, WHEN HE BECAME OF FULL AGE IN 1928, WERE UNDER A
STATUTORY DUTY TO MAKE AN ELECTION AND TO RETURN TO THIS COUNTRY FOR
PERMANENT RESIDENCE IF HE ELECTED UNITED STATES CITIZENSHIP, THAT DUTY
MUST RESULT FROM THE 1907 ACT THEN APPLICABLE.  IN THE LIGHT OF THE
FOREGOING HISTORY, WE CAN FIND NO SUCH OBLIGATION IMPOSED BY THAT ACT;
INDEED, IT WOULD APPEAR THAT THE PROPOSAL TO IMPOSE THAT DUTY WAS
DELIBERATELY REJECTED.  (FN8) 

THE NATIONALITY ACT OF 1940, (FN9) THOUGH NOT CONTROLLING HERE, SHOWS
THE CONSISTENCY OF CONGRESSIONAL POLICY NOT TO SUBJECT A CITIZEN BY
BIRTH TO THE BURDEN AND HAZARD OF ELECTION AT MAJORITY.  THIS
COMPREHENSIVE REVISION AND CODIFICATION OF THE LAWS RELATING TO
CITIZENSHIP AND NATIONALITY WAS PREPARED AT THE REQUEST OF CONGRESS BY
THE DEPARTMENTS OF STATE, JUSTICE AND LABOR.  THE STATE DEPARTMENT
PROPOSED A NEW PROVISION REQUIRING AN AMERICAN-BORN NATIONAL TAKEN
DURING MINORITY TO THE COUNTRY OF HIS OTHER NATIONALITY TO MAKE AN
ELECTION AND TO RETURN TO THE UNITED STATES, IF HE ELECTED AMERICAN
NATIONALITY, ON REACHING MAJORITY.  THE DEPARTMENTS OF JUSTICE AND
LABOR WERE OPPOSED AND, AS A CONSEQUENCE, IT WAS OMITTED FROM THE
PROPOSED BILL.  THIS DISAGREEMENT BETWEEN THE DEPARTMENTS WAS CALLED TO
THE ATTENTION OF THE CONGRESS.  (FN10)  WHILE IN SOME OTHER RESPECTS
CONGRESS ENLARGED THE GROUNDS FOR LOSS OF NATIONALITY, IT REFUSED TO
REQUIRE A CITIZEN BY NATIVITY TO ELECT BETWEEN DUAL CITIZENSHIPS UPON
REACHING A MAJORITY.  (FN11) 

THE COURT OF APPEALS, HOWEVER, APPLIED SUCH A RULE BECAUSE IT
UNDERSTOOD THAT THIS COURT, IN PERKINS V. ELG, SUPRA, HAD DECLARED IT
TO BE THE LAW.  MISS ELG WAS AMERICAN-BORN, OF NATURALIZED PARENTS
SWEDISH IN ORIGIN.  THEY TOOK HER TO SWEDEN WHEN SHE WAS BUT FOUR YEARS
OLD, WHERE SHE REMAINED DURING HER NONAGE.  BY VIRTUE OF A SWEDISH
AMERICAN TREATY OF 1869, THIS RESUMPTION OF RESIDENCE IN SWEDEN
REPATRIATED THE PARENTS, WHICH CARRIED WITH IT SWEDISH CITIZENSHIP FOR
THEIR MINOR CHILD.  UNDER THE ACT OF 1907, ANY AMERICAN CITIZEN IS
DEEMED EXPATRIATED IF NATURALIZED IN A FOREIGN STATE IN CONFORMITY WITH
ITS LAWS.  UNDOUBTEDLY, MISS ELG HAD BECOME NATURALIZED UNDER THE LAWS
OF SWEDEN.  BUT IT WAS NOT BY ANY ACT OF HER OWN OR WITHIN HER CONTROL,
AND ABOUT EIGHT MONTHS AFTER SHE BECAME TWENTY-ONE, SHE SOUGHT AND
OBTAINED AN AMERICAN PASSPORT AND RETURNED TO THIS COUNTRY WHERE SHE
RESIDED FOR SOMETHING OVER FIVE YEARS.  AMERICAN IMMIGRATION OFFICIALS
THEN DECIDED THAT HER DERIVATIVE NATURALIZATION HAD DEPRIVED HER OF
AMERICAN CITIZENSHIP AND PUT THEIR HARSH AND TECHNICAL DOCTRINE TO TEST
BY INSTITUTING PROCEEDINGS TO DEPORT HER.  THAT CASE DID NOT PRESENT
AND THE COURT COULD NOT PROPERLY HAVE DECIDED ANY QUESTION AS TO
CONSEQUENCES OF A FAILURE TO ELECT AMERICAN CITIZENSHIP, FOR MISS ELG
PROMPTLY DID SO ELECT AND DECISIVELY EVIDENCED IT BY RESUMING RESIDENCE
HERE.  WHAT IT HELD WAS THAT CITIZENSHIP CONFERRED BY OUR CONSTITUTION
UPON A CHILD BORN UNDER ITS PROTECTION CANNOT BE FORFEITED BECAUSE THE
CITIZEN DURING NONAGE IS A PASSIVE BENEFICIARY OF FOREIGN
NATURALIZATION PROCEEDINGS.  IT HELD THAT MISS ELG HAD ACQUIRED A
DERIVATIVE DUAL-CITIZENSHIP BUT HAD NOT SUFFERED A DERIVATIVE
EXPATRIATION.  IN AFFIRMING HER RIGHT TO RETURN TO AND REMAIN IN THIS
COUNTRY, IT DID NOT HOLD THAT IT WAS MANDATORY FOR HER TO DO SO. 

WE FIND NO WARRANT IN THE STATUTES FOR CONCLUDING THAT PETITIONER HAS
SUFFERED EXPATRIATION.  AND, SINCE CONGRESS HAS PRESCRIBED A LAW FOR
THIS SITUATION, WE THINK THE DIGNITY OF CITIZENSHIP WHICH THE
CONSTITUTION CONFERS AS A BIRTHRIGHT UPON EVERY PERSON BORN WITHIN ITS
PROTECTION IS NOT TO BE WITHDRAWN OR EXTINGUISHED BY THE COURTS EXCEPT
PURSUANT TO A CLEAR STATUTORY MANDATE.  (FN12)  THE JUDGMENT OF THE
COURT OF APPEALS SHOULD BE REVERSED, WITH DIRECTIONS TO REMAND THE CASE
TO THE DISTRICT COURT FOR THE ENTRY OF AN ORDER DECLARING THAT THE
PETITIONER IS A CITIZEN OF THE UNITED STATES.  REVERSED AND SO
ORDERED. 

FN1  CERTIORARI WAS GRANTED WITHOUT OPPOSITION, 343 U.S. 976. 

FN2  D.C. OPINION NOT REPORTED. 

FN3  41 OP. ATTY. GEN., OP. NO. 16. 

FN4  90 U.S. APP. D.C. 1121, 193 F.2D 920. 

FN5  15 STAT. 223, 8 U.S.C. SEC. 800. 

FN6  H.R. DOC. NO. 326, 59TH CONG., 2D SESS., P. 23; SEE ALSO 74, 79,
160 ET SEQ. 

FN7  34 STAT. 1228. 

FN8  ADMINISTRATIVE PRACTICE, WHEN INVOLVING PROTECTIONS ABROAD,
INVOLVES VERY DIFFERENT POLICY CONSIDERATIONS AND IS NOT CONTROLLING
HERE.  HOWEVER, WHILE NOT ALWAYS CONSISTENT, IT SEEMS TO HAVE SETTLED
TO THE RULE WE APPLY IN THIS CASE.  3 HACKWORTH, DIGEST OF
INTERNATIONAL LAW, 371; SEE ALSO NIELSEN, SOME VEXATIOUS QUESTIONS
RELATING TO NATIONALITY, 20 COL. L. REV. 840, 854. 

FN9  8 U.S.C., C. 11. 

FN10  SEE HEARINGS BEFORE HOUSE OF REPRESENTATIVES COMMITTEE ON
IMMIGRATION AND NATURALIZATION ON H.R. 9980, 76TH CONG., 1ST SESS., P.
32. 

FN11  SEE ALSO SEC. 350 OF PUB. L. NO. 414, 82D CONG., 2D SESS., 66
STAT. 163, 269. 

FN12  THE QUESTION OF WHETHER THE STATUTORY GROUNDS UNDER THE 1940
ACT EXCLUDE OTHER ACTS THAT WILL AMOUNT TO VOLUNTARY EXPATRIATION WAS
RESERVED IN KAWAKITA V. UNITED STATES, 343 U.S. 717, 730-732.  IT IS
NOT PRESENT IN THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE REED,
AND MR. JUSTICE CLARK CONCUR, DISSENTING. 

AT THE TIMES RELEVANT HERE CONGRESS MADE THE TAKING OF "AN OATH OF
ALLEGIANCE TO ANY FOREIGN STATE" THE GROUND FOR LOSS OF AMERICAN
CITIZENSHIP.  34 STAT. 1228, 8 U.S.C. SEC. 17.  THE FINDINGS OF THE
DISTRICT COURT IN THIS CASE STATE THAT "ON MAY 24, 1931, THE PLAINTIFF
TOOK AN OATH OF ALLEGIANCE TO THE KING OF ITALY."  THAT FINDING IS
UNCONTROVERTED HERE AND THE PRECISE CIRCUMSTANCES SURROUNDING THE
TAKING OF THE OATH ARE UNEXPLAINED.  ALL WE KNOW IS THAT PLAINTIFF,
WITHOUT PROTEST, WAS INDUCTED INTO THE ITALIAN ARMY AND SERVED THERE
FROM APRIL 14, 1931, TO SEPTEMBER 5, 1931. 

IF WE ARE TO BASE OUR DECISION ON THE RECORD, WE WOULD BE COMPELLED
TO AFFIRM.  FOR IT IS PLAIN THAT PETITIONER DID TAKE AN OATH OF
ALLEGIANCE TO A FOREIGN STATE.  THE COURT, HOWEVER, IGNORES THE RECORD
AND RESTS ON AN OPINION OF THE ATTORNEY GENERAL IN ANOTHER CASE (CF.
MR. JUSTICE JACKSON CONCURRING, MCGRATH V. KRISTENSEN, 340 U.S. 162,
176), SAYING THAT ONE WHO TOOK AN OATH IN THE ARMY OF FASCIST ITALY DID
SO UNDER DURESS.  WE HAVE NO BASIS FOR KNOWING THAT EVERY INDUCTED
SOLDIER WHO TOOK AN OATH IN MUSSOLINI'S ARMY DID SO UNDER DURESS.  FOR
ALL WE KNOW, THIS AMERICAN CITIZEN TOOK THE OATH FREELY AND GLADLY.  AT
LEAST, HE TOOK IT.  IF WE ACTED IN THE ROLE OF SECRETARY OF STATE OR
ATTORNEY GENERAL, WE MIGHT EXERCISE OUR DISCRETION IN FAVOR OF THE
CITIZEN AND DECIDE NOT TO MOVE AGAINST HIM ON SUCH A SHOWING.  BUT WE
SIT NOT AS CABINET OFFICERS BUT AS JUDGES TO DECIDE CASES ON THE FACTS
OF THE RECORDS BEFORE US.
..END :













BROWN V. BOARD OF EDUCATION OF TOPEKA 344 U.S. 141 


NO. 8.  NOVEMBER 24, 1952. 


THIS IS AN APPEAL FROM A DECISION OF THE DISTRICT COURT SUSTAINING THE
CONSTITUTIONALITY OF A STATE STATUTE WHICH AUTHORIZED RACIAL
SEGREGATION IN THE PUBLIC SCHOOLS OF KANSAS.  IN THE DISTRICT COURT THE
STATE INTERVENED AND DEFENDED THE CONSTITUTIONALITY OF THE STATUTE; BUT
NEITHER THE STATE, NOR ANY OF THE OTHER APPELLEES, HAS ENTERED AN
APPEARANCE OR FILED A BRIEF HERE.  BECAUSE OF THE IMPORTANCE OF THE
ISSUE, THIS COURT REQUESTS THAT THE STATE PRESENT ITS VIEWS AT THE ORAL
ARGUMENT.  IF THE STATE DOES NOT DESIRE TO APPEAR, THE ATTORNEY GENERAL
OF THE STATE IS REQUESTED TO ADVISE THIS COURT WHETHER THE STATE'S
DEFAULT SHALL BE CONSTRUED AS A CONCESSION OF THE INVALIDITY OF THE
STATUTE.  PP. 141-142. 

BROWN ET AL. V. BOARD OF EDUCATION OF TOPEKA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS. 

THE DECISION BELOW IS REPORTED IN 98 F. SUPP. 797. 

PER CURIAM. 

THIS ACTION WAS INSTITUTED BY THE APPELLANTS ATTACKING A KANSAS
STATUTE WHICH AUTHORIZED SEGREGATION IN THE SCHOOLS OF THAT STATE.  IT
WAS URGED THAT THE STATE OF KANSAS WAS WITHOUT POWER TO ENACT SUCH
LEGISLATION, CLAIMED BY APPELLANTS TO BE IN CONTRAVENTION OF THE
FOURTEENTH AMENDMENT. 

IN THE DISTRICT COURT, THE STATE, BY ITS GOVERNOR AND ATTORNEY
GENERAL, INTERVENED AND DEFENDED THE CONSTITUTIONALITY OF THE STATUTE. 
THE COURT UPHELD ITS VALIDITY. 

IN THIS COURT, THE APPELLANTS CONTINUE THEIR CONSTITUTIONAL ATTACK. 
NO APPEARANCE HAS BEEN ENTERED HERE BY THE STATE OF KANSAS, THE BOARD
OF EDUCATION OF TOPEKA, AND THE OTHER APPELLEES; NOR HAVE THEY
PRESENTED ANY BRIEF IN SUPPORT OF THE STATUTE'S VALIDITY.  THE COURT
HAS BEEN ADVISED BY COUNSEL FOR THE BOARD OF EDUCATION THAT IT DOES NOT
PROPOSE TO APPEAR IN ORAL ARGUMENT OR PRESENT A BRIEF. 

BECAUSE OF THE NATIONAL IMPORTANCE OF THE ISSUE PRESENTED AND BECAUSE
OF ITS IMPORTANCE TO THE STATE OF KANSAS, WE REQUEST THAT THE STATE
PRESENT ITS VIEWS AT ORAL ARGUMENT.  IF THE STATE DOES NOT DESIRE TO
APPEAR, WE REQUEST THE ATTORNEY GENERAL TO ADVISE WHETHER THE STATE'S
DEFAULT SHALL BE CONSTRUED AS A CONCESSION OF INVALIDITY. 
..END :




JOHNSON V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. 344 U.S. 48 


NO. 40.  ARGUED OCTOBER 23-24, 1952.  - DECIDED NOVEMBER 17, 1952.  -
194 F.2D 194, JUDGMENT VACATED AND CAUSE REMANDED. 


AT THE CLOSE OF THE EVIDENCE IN A SUIT IN A FEDERAL DISTRICT COURT
UNDER THE JONES ACT FOR WRONGFUL DEATH, DEFENDANT MOVED TO DISMISS THE
COMPLAINT AND FOR A DIRECTED VERDICT IN ITS FAVOR.  THE COURT RESERVED
DECISION ON THE MOTION AND SUBMITTED THE CASE TO THE JURY.  A VERDICT
WAS RETURNED FOR PLAINTIFF AND JUDGMENT WAS ENTERED THEREON.  WITHIN
TEN DAYS AFTER RECEPTION OF THE VERDICT, DEFENDANT MOVED TO HAVE IT SET
ASIDE, BUT DID NOT MOVE FOR JUDGMENT NOTWITHSTANDING THE VERDICT.  THE
COURT DENIED PLAINTIFF'S MOTION TO SET ASIDE THE VERDICT AND DENIED THE
PRE-VERDICT MOTIONS FOR DISMISSAL AND FOR A DIRECTED VERDICT.  ON
APPEAL, THE COURT OF APPEALS HELD THAT THE MOTION FOR A DIRECTED
VERDICT SHOULD HAVE BEEN GRANTED AND REVERSED THE JUDGMENT OF THE
DISTRICT COURT.  HELD:  UNDER RULE 50(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, THE COURT OF APPEALS COULD NOT DIRECT ENTRY OF A JUDGMENT
FOR DEFENDANT NOTWITHSTANDING THE VERDICT.  PP. 49-54. 

(A)  IN THE ABSENCE OF A MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT MADE IN THE TRIAL COURT WITHIN TEN DAYS AFTER RECEPTION OF THE
VERDICT, RULE 50(B) FORBIDS THE TRIAL JUDGE OR AN APPELLATE COURT TO
ENTER SUCH A JUDGMENT.  P. 50. 

(B)  DEFENDANT'S MOTION TO SET ASIDE THE VERDICT CANNOT BE TREATED AS
A MOTION TO ENTER JUDGMENT NOTWITHSTANDING THE VERDICT.  PP. 50-51. 

(C)  THE TRIAL JUDGE'S EXPRESS RESERVATION OF DECISION ON THE MOTION
FOR A DIRECTED VERDICT DID NOT RELIEVE DEFENDANT FROM THE DUTY UNDER
RULE 50(B) TO MAKE A MOTION AFTER THE VERDICT FOR JUDGMENT
NOTWITHSTANDING THE VERDICT.  PP. 51-54. 

(D)  DEFENDANT IS ENTITLED ONLY TO A NEW TRIAL, NOT TO A JUDGMENT IN
ITS FAVOR.  P. 54. 

JOHNSON, ADMINISTRATRIX, V. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUIT UNDER THE JONES ACT, 46 U.S.C. SEC. 688, FOR WRONGFUL
DEATH, THE DISTRICT COURT RENDERED JUDGMENT FOR THE PLAINTIFF.  THE
COURT OF APPEALS REVERSED.  194 F.2D 194.  THIS COURT GRANTED
CERTIORARI.  343 U.S. 975.  JUDGMENT VACATED AND CAUSE REMANDED, P.
54. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS CONCERNING THE POWER OF A COURT OF APPEALS
TO RENDER JUDGMENT FOR A DEFENDANT INSTEAD OF MERELY ORDERING A NEW
TRIAL AFTER IT HAS SET ASIDE A JURY VERDICT AND TRIAL COURT JUDGMENT
FOR A PLAINTIFF. 

THE PETITIONER SUED THE RESPONDENT RAILROAD UNDER THE JONES ACT, 46
U.S.C. SEC. 688, FOR WRONGFUL DEATH OF HER HUSBAND.  WHEN THE EVIDENCE
WAS ALL IN, THE RAILROAD MOVED TO DISMISS THE COMPLAINT AND ALSO ASKED
FOR A DIRECTED VERDICT IN ITS FAVOR ON THE GROUNDS THAT NO NEGLIGENCE
HAD BEEN PROVEN AND THAT THE DECEASED HAD BEEN RESPONSIBLE FOR HIS OWN
DEATH.  THE TRIAL COURT RESERVED DECISION ON THE MOTION, SUBMITTED THE
CASE TO THE JURY, A VERDICT OF $20,000 WAS RETURNED FOR PETITIONER, AND
JUDGMENT WAS ENTERED ON THE VERDICT.  WITHIN TEN DAYS AFTER RECEPTION
OF THE VERDICT THE RAILROAD MOVED TO HAVE THE VERDICT SET ASIDE ON THE
GROUND THAT IT WAS EXCESSIVE, CONTRARY TO THE LAW, TO THE EVIDENCE, TO
THE WEIGHT OF THE EVIDENCE.  MORE THAN TWO MONTHS LATER THIS MOTION WAS
DENIED; IN THE SAME ORDER DENYING THAT MOTION THE COURT ALSO DENIED THE
PRE-VERDICT MOTIONS FOR DISMISSAL AND FOR A DIRECTED VERDICT ON WHICH
ACTION HAD BEEN RESERVED PRIOR TO VERDICT.  HOLDING THAT THE MOTION FOR
A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED, THE COURT OF APPEALS
REVERSED.  194 F.2D 194.  BOTH PARTIES AGREE THAT THIS REVERSAL
REQUIRES THE DISTRICT COURT TO ENTER JUDGMENT FOR THE RAILROAD
NOTWITHSTANDING THE VERDICT, THEREBY DEPRIVING PETITIONER OF ANOTHER
TRIAL.  WHETHER THE COURT OF APPEALS COULD DIRECT SUCH A JUDGMENT
CONSISTENTLY WITH RULE 50(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE
(FN1) IS THE SINGLE QUESTION WE GRANTED CERTIORARI TO REVIEW.  343 U.S.
975. 

ON SEVERAL RECENT OCCASIONS WE HAVE CONSIDERED RULE 50(B).  WE HAVE
SAID THAT IN THE ABSENCE OF A MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT MADE IN THE TRIAL COURT WITHIN TEN DAYS AFTER RECEPTION OF A
VERDICT THE RULE FORBIDS THE TRIAL JUDGE OR AN APPELLATE COURT TO ENTER
SUCH A JUDGMENT.  CONE V. WEST VIRGINIA PULP & PAPER CO., 330 U.S.
212.  WE REPEATED THAT CONSTRUCTION OF THE RULE IN GLOBE LIQUOR CO. V.
SAN ROMAN, 332 U.S. 571, AND REEMPHASIZED IT IN FOUNTAIN V. FILSON, 336
U.S. 681. 

ALTHOUGH THIS RESPONDENT MADE SEVERAL MOTIONS IT DID NOT AS THE RULE
REQUIRES MOVE WITHIN TEN DAYS AFTER VERDICT "TO HAVE JUDGMENT ENTERED
IN ACCORDANCE WITH HIS (ITS) MOTION FOR A DIRECTED VERDICT."   WE ARE
TOLD, HOWEVER, IN RESPONDENT'S BRIEF THAT ITS MOTION TO SET ASIDE THE
VERDICT "WAS INTENDED TO BE A MOTION FOR JUDGMENT IN ITS FAVOR OR FOR A
NEW TRIAL" AND THAT "OBVIOUSLY RESPONDENT DID NOT MERELY WANT THE
VERDICT TO BE SET ASIDE BUT WANTED THE RELIEF THAT INVARIABLY FOLLOWS
SUCH A SETTING ASIDE ON THE GROUNDS URGED: A JUDGMENT IN ITS FAVOR OR A
NEW TRIAL."  THE DEFECT IN THIS ARGUMENT IS THAT RESPONDENT'S MOTIONS
CANNOT BE MEASURED BY ITS UNEXPRESSED INTENTION OR WANTS.  NEITHER THE
TRIAL JUDGE NOR THE COURT OF APPEALS APPEARS TO HAVE TREATED THE MOTION
TO SET ASIDE THE VERDICT AS ASKING FOR ANYTHING BUT THAT.  AND SURELY
PETITIONER IS NOT TO HAVE HER OPPORTUNITY TO REMEDY ANY SHORTCOMINGS IN
HER CASE JEOPARDIZED BY A FAILURE TO FATHOM THE UNSPOKEN HOPES OF
RESPONDENT'S COUNSEL.  RESPONDENT'S MOTION SHOULD BE TREATED AS NOTHING
BUT WHAT IT ACTUALLY WAS, ONE TO SET ASIDE THE VERDICT - NOT ONE TO
ENTER JUDGMENT NOTWITHSTANDING THE VERDICT. 

RESPONDENT SEPARATELY ARGUES THAT A TRIAL JUDGE'S EXPRESS RESERVATION
OF DECISION ON MOTION FOR A DIRECTED VERDICT RELIEVES A PARTY FROM ANY
DUTY WHATEVER UNDER 50(B) TO MAKE A MOTION FOR JUDGMENT AFTER VERDICT. 
THIS CONTENTION NOT ONLY FLIES IN THE TEETH OF THE RULE'S UNAMBIGUOUS
LANGUAGE BUT IF SUSTAINED WOULD UNDERMINE SAFEGUARDS FOR LITIGANTS SOME
OF WHICH HAVE BEEN POINTED OUT IN PRIOR CASES.  THE RULE CAREFULLY SETS
OUT THE STEPS AND PROCEDURES TO BE FOLLOWED BY THE PARTIES AS A
PREREQUISITE TO ENTRY OF JUDGMENTS NOTWITHSTANDING AN ADVERSE JURY
VERDICT.  MONTGOMERY WARD & CO. V.  DUNCAN, 311 U.S. 243, 250.  IT WAS
ADOPTED FOLLOWING CONFUSION IN THIS FIELD BROUGHT ABOUT IN PART BY
THREE CASES DECIDED BY THIS COURT, SLOCUM V. NEW YORK LIFE INS. CO.,
228 U.S. 364; BALTIMORE & CAROLINA LINE, INC. V. REDMAN, 295 U.S. 654;
AND AETNA INS.  CO. V. KENNEDY, 301 U.S. 389.  THE SLOCUM CASE WAS
UNDERSTOOD TO HOLD THAT THE SEVENTH AMENDMENT FORBADE UNITED STATES
COURTS TO ENTER JUDGMENTS IN FAVOR OF ONE PARTY AFTER JURY VERDICT IN
FAVOR OF THE OTHER.  THE REDMAN CASE TRIED IN NEW YORK HELD THAT THE
SEVENTH AMENDMENT DID NOT FORBID ENTRY OF JUDGMENT NOTWITHSTANDING A
VERDICT WHERE, PRIOR TO THE VERDICT, THE TRIAL JUDGE, FOLLOWING NEW
YORK PROCEDURE, HAD EXPRESSLY RESERVED HIS DECISION ON A MOTION FOR A
DIRECTED VERDICT.  THE NEW YORK DISTRICT COURT WAS AUTHORIZED TO FOLLOW
THIS STATE PRACTICE BECAUSE OF THE CONFORMITY ACT, R.S. (1878) SEC.
914.  THUS THE REDMAN CASE DID NOT PURPORT TO ADOPT NEW YORK PROCEDURE
FOR THE GENERAL GUIDANCE OF FEDERAL COURTS.  LATER THE KENNEDY CASE
CAST DOUBT ON THE REDMAN HOLDING, AT LEAST AS TO ITS SCOPE.  IN THE
KENNEDY CASE PLAINTIFF'S REQUEST FOR DIRECTED VERDICT HAD NOT BEEN
FOLLOWED BY A TIMELY MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AS
REQUIRED BY PENNSYLVANIA LAW.  FAILURE TO CONFORM TO THIS PENNSYLVANIA
PRACTICE WAS A REASON GIVEN BY THIS COURT FOR FINDING LACK OF POWER IN
THE DISTRICT COURT TO ENTER JUDGMENT CONTRARY TO THE VERDICT.  (FN2) 

RULE 50(B) WAS DESIGNED TO PROVIDE A PRECISE PLAN TO END THE
PREVAILING CONFUSION ABOUT DIRECTED VERDICTS AND MOTIONS FOR JUDGMENTS
NOTWITHSTANDING VERDICTS.  STATE PROCEDURE WAS NO LONGER TO CONTROL
FEDERAL COURTS AS IT HAD IN THE REDMAN AND KENNEDY CASES.  FEDERAL
COURTS WERE TO BE GUIDED BY THIS NEW RULE, WHICH PROVIDED ITS OWN
EXCLUSIVE PROCEDURAL PROGRAM.  IT REJECTED THE NEW YORK PROCEDURE
APPLIED IN THE REDMAN CASE, WHICH PERMITTED JUDGMENT TO BE SET ASIDE
EVEN THOUGH NO MOTION TO DO SO HAD BEEN FILED AFTER VERDICT.  INSTEAD
IT APPROACHED MORE CLOSELY THE PENNSYLVANIA RULE, RELIED ON IN THE
KENNEDY CASE, UNDER WHICH JUDGMENTS CONTRARY TO VERDICTS WOULD NOT BE
AWARDED IN THE ABSENCE OF SPECIFIC TIMELY MOTIONS FOR THEM.  BUT RULE
50(B) DEPARTED FROM THE NEW YORK AND PENNSYLVANIA PROCEDURES BY MAKING
IT WHOLLY UNNECESSARY FOR A JUDGE TO MAKE AN EXPRESS RESERVATION OF HIS
DECISION ON A MOTION FOR DIRECTED VERDICT.  THE RULE ITSELF MADE THE
RESERVATION AUTOMATIC.  A COURT IS ALWAYS "DEEMED TO HAVE SUBMITTED THE
ACTION TO THE JURY SUBJECT TO A LATER DETERMINATION" OF THE RIGHT TO A
DIRECTED VERDICT IF A MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
IS MADE "WITHIN 10 DAYS AFTER THE RECEPTION OF A VERDICT  ...  ."  THIS
REQUIREMENT OF A TIMELY APPLICATION FOR JUDGMENT AFTER VERDICT IS NOT
AN IDLE MOTION.  THIS VERDICT SOLVES FACTUAL QUESTIONS AGAINST THE POST
VERDICT MOVANT AND THUS EMPHASIZES THE IMPORTANCE OF THE LEGAL ISSUES. 
THE MOVANT CAN ALSO ASK FOR A NEW TRIAL EITHER FOR ERRORS OF LAW OR ON
DISCRETIONARY GROUNDS.  THE REQUIREMENT FOR TIMELY MOTION AFTER VERDICT
IS THUS AN ESSENTIAL PART OF THE RULE, FIRMLY GROUNDED IN PRINCIPLES OF
FAIRNESS.  SEE CONE V. WEST VIRGINIA PULP & PAPER CO., SUPRA, AT 217
218.  POOR SUPPORT FOR ITS ABANDONMENT WOULD BE AFFORDED BY THE MERE
FACT THAT A JUDGE MAKES AN EXPRESS RESERVATION OF A DECISION WHICH THE
RULE RESERVES REGARDLESS OF WHAT THE JUDGE DOES. 

RULE 50(B) AS WRITTEN AND AS CONSTRUED BY US IS NOT DIFFICULT TO
UNDERSTAND OR TO OBSERVE.  REWRITING THE RULE TO FIT COUNSEL'S
UNEXPRESSED WANTS AND INTENTIONS WOULD MAKE IT EASY TO REINTRODUCE THE
SAME TYPE OF CONFUSION AND UNCERTAINTY THE RULE WAS ADOPTED TO END.  IN
1946 THIS COURT WAS ASKED TO ADOPT AN AMENDMENT TO THE RULE WHICH WOULD
HAVE GIVEN APPELLATE COURTS POWER TO ENTER JUDGMENTS FOR PARTIES WHO,
LIKE THIS RESPONDENT, HAD MADE NO TIMELY MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT.  WE DID NOT ADOPT THE AMENDMENT THEN.  5
MOORE, FEDERAL PRACTICE (2D ED. 1951), PARAS. 50.01(7), 50.01(9),
50.11.  NO SUFFICIENTLY PERSUASIVE REASONS ARE PRESENTED WHY WE SHOULD
DO SO NOW UNDER THE GUISE OF INTERPRETATION. 

RESPONDENT MADE A MOTION TO SET ASIDE THE VERDICT AND FOR NEW TRIAL
WITHIN THE TIME REQUIRED BY RULE 50(B).  IT FAILED TO COMPLY WITH
PERMISSION GIVEN BY 50(B) TO MOVE FOR JUDGMENT N.O.V. AFTER THE
VERDICT.  IN THIS SITUATION RESPONDENT IS ENTITLED ONLY TO A NEW TRIAL,
NOT TO A JUDGMENT IN ITS FAVOR.  THE JUDGMENT OF THE COURT OF APPEALS
IS VACATED AND THE CAUSE IS REMANDED TO IT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  (FN3)  IT IS SO ORDERED. 

FN1  "WHENEVER A MOTION FOR A DIRECTED VERDICT MADE AT THE CLOSE OF
ALL THE EVIDENCE IS DENIED OR FOR ANY REASON IS NOT GRANTED, THE COURT
IS DEEMED TO HAVE SUBMITTED THE ACTION TO THE JURY SUBJECT TO A LATER
DETERMINATION OF THE LEGAL QUESTIONS RAISED BY THE MOTION.  WITHIN 10
DAYS AFTER THE RECEPTION OF A VERDICT, A PARTY WHO HAS MOVED FOR A
DIRECTED VERDICT MAY MOVE TO HAVE THE VERDICT AND ANY JUDGMENT ENTERED
THEREON SET ASIDE AND TO HAVE JUDGMENT ENTERED IN ACCORDANCE WITH HIS
MOTION FOR A DIRECTED VERDICT; OR IF A VERDICT WAS NOT RETURNED SUCH
PARTY, WITHIN 10 DAYS AFTER THE JURY HAS BEEN DISCHARGED, MAY MOVE FOR
JUDGMENT IN ACCORDANCE WITH HIS MOTION FOR A DIRECTED VERDICT.  A
MOTION FOR A NEW TRIAL MAY BE JOINED WITH THIS MOTION, OR A NEW TRIAL
MAY BE PRAYED FOR IN THE ALTERNATIVE  ...  ." 

FN2  THE CONTROLLING PENNSYLVANIA STATUTE THEN WAS PA. LAWS 1905, NO.
198.  LIKE RULE 50(B) IT PROVIDED FOR A TIMELY MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT.  THE BINDING DUTY TO DO THIS WAS EXPLAINED
BY THE SUPREME COURT OF PENNSYLVANIA AS FOLLOWS, IN A CASE RELIED ON BY
THIS COURT IN THE KENNEDY CASE: 

"TO SECURE THE BENEFIT OF THAT ACT ITS TERMS MUST BE COMPLIED WITH,
THAT IS, THE REFUSAL OF THE REQUEST FOR BINDING INSTRUCTIONS MUST BE
FOLLOWED BY A PROPER MOTION MADE IN DUE TIME:  PYLE V. FINNESSY, 275
PA. 54, 57.  HERE THE RECORD AS DULY CERTIFIED DISCLOSES NO SUCH MOTION
NOR ANY EVIDENCE THAT ONE WAS MADE.  TRUE, THE QUESTION OF THE ABSENCE
OF SUCH MOTION WAS NOT RAISED IN THE LOWER COURT BUT, BEING ONE OF
JURISDICTION, IT CANNOT BE IGNORED.  IT FOLLOWS THAT AS THE RECORD
STANDS THE JUDGMENT CANNOT BE SUSTAINED."  WEST V. MANATAWNY MUT. F.&S.
INS. CO., 277 PA. 102, 104, 120 A. 763, 764. 

FN3  THE WRITER OF THIS OPINION AND THE CHIEF JUSTICE ARE NOT
CONVINCED THAT THE COURT OF APPEALS ATTEMPTED TO DIRECT A VERDICT FOR
THE RAILROAD.  WHAT THE COURT SAID WAS: "IN OUR OPINION THE MOTION FOR
A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED.  ACCORDINGLY THE JUDGMENT
IS REVERSED."  BUT HOLDING THAT A DIRECTED VERDICT SHOULD HAVE BEEN
GIVEN CANNOT BE THE EQUIVALENT OF A COURT'S ENTRY OF JUDGMENT FOR
DEFENDANT NOTWITHSTANDING A JURY VERDICT FOR PLAINTIFF.  FOR AFTER
SETTING ASIDE A VERDICT AS AUTHORIZED BY RULE 50(B), A TRIAL JUDGE MAY
"EITHER" ENTER A JUDGMENT CONTRARY TO THE VERDICT "OR" ORDER A NEW
TRIAL.  THE RULE THEREBY REQUIRES THE EXERCISE OF AN INFORMED JUDICIAL
DISCRETION AS A CONDITION PRECEDENT TO A CHOICE BETWEEN THESE TWO
ALTERNATIVES.  CONE V. WEST VIRGINIA PULP & PAPER CO., SUPRA, AT 215. 
AND THIS DISCRETION MUST BE EXERCISED BY THE COURT, NOT BY ITS CLERK. 
THE COURT WAS TOLD DURING ORAL ARGUMENT THAT IT IS THE PRACTICE IN THE
SECOND CIRCUIT FOR THE CLERK TO INCLUDE IN HIS MANDATE A DIRECTION TO
THE DISTRICT COURT TO HAVE A JUDGMENT ENTERED IN FAVOR OF A PARTY
NOTWITHSTANDING THE VERDICT WHERE THE COURT REVERSES A DISTRICT COURT'S
REFUSAL TO DIRECT A VERDICT.  A RULE OF PRACTICE OF THIS KIND UNDER
WHICH A COURT CLERK'S MANDATE WOULD AUTOMATICALLY DIRECT ENTRY OF A
JUDGMENT FOR DEFENDANT AFTER COURT REVERSAL OF A PLAINTIFF'S JUDGMENT
COULD NOT POSSIBLY BE THE RESULT OF THE KIND OF JUDICIAL DISCRETION
DIRECTED BY RULE 50(B).   WE ARE NOT WILLING TO ATTRIBUTE SUCH A
PRACTICE TO THE SECOND CIRCUIT.  THE SECOND CIRCUIT'S RULES OF PRACTICE
DO NOT PRESCRIBE A PRACTICE OF THAT KIND.  SEE F.C.A., RULES, C. 5, PP.
96-103, 16 S. CT.  DIG.  143-169, U.S. DIG., COURT RULES (L. ED.), PP.
573-589.  NOR DO THE RULES OF ANY OTHER CIRCUIT.  SEE F.C.A., RULES,
CC. 4-13, PP. 84-194, 16 S. CT. DIG.  107-523, U.S. DIG., COURT RULES
(L. ED.), PP. 545-827.  NO CASE HAS BEEN FOUND THAT INDICATES SUCH A
PRACTICE BY THE SECOND OR ANY OTHER CIRCUIT.  SINCE ADOPTION OF RULE
50(B) IN 1938, COURTS OF APPEALS WISHING TO ENTER OR DIRECT JUDGMENT
HAVE SAID SO IN CLEAR, SIMPLE AND MANDATORY LANGUAGE.  AS TO THE SECOND
CIRCUIT, SEE E.G., VENIDES V. UNITED GREEK SHIPOWNERS CORP., 168 F.2D
681; BRENNAN V. B.&O.R. CO., 115 F.2D 555; WILLIAMS V. NEW JERSEY-N.Y.
TRANSIT CO., 113 F.2D 649; CONWAY V. O'BRIEN, 111 F.2D 611.  THE FIFTH
CIRCUIT EMPHATICALLY POINTED OUT THAT MERE REVERSAL AND REMAND FOR
PROCEEDINGS CONSISTENT WITH THE OPINION DID NOT AUTHORIZE A TRIAL COURT
TO ENTER JUDGMENT NOTWITHSTANDING THE VERDICT; ENTRY OF SUCH A JUDGMENT
WAS ONLY TO BE GRANTED AS OF DISCRETION AND AFTER A HEARING.  FLENIKEN
V. GREAT AMERICAN INDEMNITY CO., 142 F.2D 938; SEE ALSO IN RE MUTUAL
LIFE INS. CO. OF NEW YORK, 188 F.2D 424, 425-426.    MR. JUSTICE
FRANKFURTER, WHOM MR. JUSTICE JACKSON, MR. JUSTICE BURTON AND MR.
JUSTICE MINTON JOIN, DISSENTING. 

IF THE COURT'S OPINION IN THIS CASE MERELY DISPOSED OF A PARTICULAR
LITIGATION BY FINDING ERROR IN A DECISION OF THE COURT OF APPEALS THAT
A JUDGMENT BE ENTERED FOR THE DEFENDANT IN A NEGLIGENCE SUIT, AN
EXPRESSION OF DISSENT, LET ALONE A DISSENTING OPINION, WOULD NOT BE
JUSTIFIED.  IF THAT WERE ALL THERE WERE TO IT, NEITHER WOULD THE COURT
HAVE BEEN JUSTIFIED IN GRANTING THE PETITION FOR CERTIORARI.  THE SAME
CONSIDERATIONS WHICH MADE THE CASE ONE OF GENERAL IMPORTANCE FOR REVIEW
HERE MAKE IT APPROPRIATE TO SPELL OUT THE GROUNDS OF DISSENT. 

NOT THE LEAST IMPORTANT BUSINESS OF THIS COURT IS TO GUIDE THE LOWER
COURTS AND THE BAR IN THE EFFECTIVE AND ECONOMICAL CONDUCT OF
LITIGATION.  THAT IS WHAT IS INVOLVED IN THIS CASE.  THE IMMEDIATE
ISSUE IS THE CONSTRUCTION OF ONE OF THE IMPORTANT RULES OF CIVIL
PROCEDURE.  THAT CONSTRUCTION IN TURN DEPENDS UPON OUR BASIC ATTITUDE
TOWARD THOSE RULES - WHETHER WE TAKE THEIR FORCE TO LIE IN THEIR VERY
WORDS, TREATING THEM AS TALISMANIC FORMULAS, OR WHETHER WE BELIEVE THEY
ARE TO BE APPLIED AS RATIONAL INSTRUMENTS FOR DOING JUSTICE BETWEEN MAN
AND MAN IN CASES COMING BEFORE THE FEDERAL COURTS. 

OUR CONCERN IS WITH RULE 50(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  (FN1)  THE RULES BECAME EFFECTIVE ON SEPTEMBER 16, 1938. 
TWO YEARS LATER, IN MONTGOMERY WARD & CO. V. DUNCAN, 311 U.S. 243, THIS
COURT WAS CALLED UPON TO DETERMINE THE APPROPRIATE PROCEDURE UNDER RULE
50(B).  TO DO SO, THE COURT HAD TO CONSIDER THE EXPERIENCE THAT LED TO
THE PROMULGATION OF THE RULE.  ITS AIM WAS TO SPEED LITIGATION WITHOUT
PREJUDICING THE LEGITIMATE INTERESTS OF LITIGANTS; TO SEE TO IT THAT
FULL AND FAIR CONSIDERATION IS GIVEN TO THE ISSUES LITIGANTS RAISE BUT
THAT LITIGATION DOES NOT BECOME A SOCIALLY WASTEFUL GAME.  THE
UNANIMOUS OPINION OF THE COURT IN THE MONTGOMERY WARD CASE GAVE THIS
GUIDING DIRECTION:  "  ...  THE COURTS SHOULD SO ADMINISTER THE RULE AS
TO ACCOMPLISH ALL THAT IS PERMISSIBLE UNDER ITS TERMS."  311 U.S., AT
253.  THIS ATTITUDE WAS MADE SPECIFIC BY THE STATEMENT THAT IF THE
TRIAL JUDGE RULES, AS HE PROPERLY SHOULD, ON ALTERNATIVE MOTIONS FOR
JUDGMENT N.O.V. AND FOR A NEW TRIAL, AND DENIES THEM BOTH, THE
APPELLATE COURT MAY REVERSE THE FORMER ACTION AND DIRECT THE ENTRY OF
JUDGMENT N.O.V.  311 U.S., AT 254. 

SUBSEQUENT TO MONTGOMERY WARD & CO. V. DUNCAN, SUPRA, THREE CASES
CAME HERE IN WHICH WE REVERSED BECAUSE COURTS OF APPEALS DISREGARDED
THE PROCEDURE OUTLINED IN THAT CASE IN ONE SIGNIFICANT RESPECT.  THE
COURTS OF APPEALS DIRECTED THE ENTRY OF JUDGMENTS N.O.V.  ALTHOUGH NO
MOTIONS FOR SUCH JUDGMENTS HAD BEEN MADE IN THE TRIAL COURTS.  CONE V.
WEST VIRGINIA PULP & PAPER CO., 330 U.S. 212; GLOBE LIQUOR CO. V. SAN
ROMAN, 332 U.S. 571; FOUNTAIN V. FILSON, 336 U.S. 681.  OUR DECISIONS
DO NOT SUGGEST, HOWEVER, THAT THE PARTY IN WHOSE FAVOR A COURT OF
APPEALS DIRECTS A JUDGMENT N.O.V. IS REQUIRED TO USE A RITUALISTIC
FORMULA IN THE DISTRICT COURT.  THE ONLY RELEVANT INQUIRY IN THIS CASE,
THEREFORE, IS WHETHER THE FAIR MEANING OF THE PROCEEDINGS AFTER A
VERDICT WAS RENDERED IN FACT CONSTITUTED DISPOSITION OF A MOTION TO
ENTER JUDGMENT N.O.V.  THIS IS SO UNLESS RULE 50(B) COMMANDS THAT AFTER
THE RECEPTION OF A VERDICT A PARTY MUST NOT ONLY "MOVE TO HAVE THE
VERDICT AND ANY JUDGMENT ENTERED THEREON SET ASIDE AND TO HAVE JUDGMENT
ENTERED IN ACCORDANCE WITH HIS MOTION FOR A DIRECTED VERDICT," BUT MUST
DO SO BY A PARTICULAR FORM OF WORDS.  THE RULE DOES NOT REQUIRE THIS. 
NOTHING IN THE RULE, EITHER BY ITS TERMS OR ITS ORIGIN, REQUIRES SOME
ABRACADABRA OF OBEDIENCE TO IT. 

A COMPARISON OF THE FACTS IN THE CONE, GLOBE AND FOUNTAIN CASES WITH
THOSE IN THIS CASE LEAVES NO DOUBT THAT THIS CASE HAS NOTHING IN COMMON
WITH CONE, GLOBE AND FOUNTAIN.  A TABULAR ANALYSIS OF THE PROCEDURAL
FACTS IN ALL FOUR CASES IS APPENDED, POST, P. 63.  THERE WERE NO
MOTIONS N.O.V. IN CONE, GLOBE AND FOUNTAIN, AND THE FAILURE TO MAKE
THEM RESULTED IN A PREJUDICE TO THE LOSING PARTIES IN THE COURTS OF
APPEALS IN THOSE THREE CASES WHICH IS WHOLLY WANTING HERE.  (FN2) 

IN EACH OF THE THREE EARLIER CASES THE DECISION OF THE COURT OF
APPEALS EITHER APPLIED TO THE FACTS A LEGAL THEORY OTHER THAN THE ONE
ON WHICH THE PARTIES PROCEEDED IN THE TRIAL COURT, OR FOR THE FIRST
TIME ASSIGNED DECISIVE IMPORTANCE TO THE CHOICE BY THE LOSING PARTY OF
A LEGAL THEORY ON WHICH TO CLAIM OR RESIST RECOVERY.  CONE WAS TRIED ON
THE ASSUMPTION THAT PROOF OF CONSTRUCTIVE POSSESSION WOULD SUSTAIN THE
CAUSE OF ACTION; THE COURT OF APPEALS DEFINITIVELY DISPOSED OF THE
LITIGATION BY HOLDING THAT ACTUAL POSSESSION MUST BE PROVED.  IN GLOBE
THE PLAINTIFF SECURED A VERDICT ON THE BASIS OF AN EXPRESS WARRANTY IN
A SALE; THE COURT OF APPEALS HELD THAT HE HAD FAILED IN THIS AND
DIRECTED THE ENTRY OF A JUDGMENT FOR THE SELLER, EVEN THOUGH ON A NEW
TRIAL, WHICH ALONE WAS WHAT THE SELLER HAD ASKED, IT WOULD HAVE BEEN
OPEN FOR THE BUYER, WITH THE AID OF ADDITIONAL EVIDENCE, TO SUCCEED ON
PROOF OF AN IMPLIED WARRANTY.  IN FOUNTAIN THE PLAINTIFF SUED TO HAVE
HIMSELF DECLARED THE BENEFICIARY OF A RESULTING TRUST IN CERTAIN
REALTY.  WHILE THE COURT OF APPEALS AGREED WITH THE DISTRICT COURT THAT
NEW JERSEY LAW PRECLUDED THE IMPOSITION OF SUCH A RESULTING TRUST, IT
DIRECTED THE DISTRICT COURT TO ENTER A PERSONAL MONEY JUDGMENT FOR THE
PLAINTIFF.  IN ALL THREE CASES WE HELD THAT THE DISTRICT COURT NEVER
HAD OPPORTUNITY TO EXERCISE THE DISCRETION WHICH WOULD HAVE BEEN OPEN
TO IT HAD THE GROUNDS ON WHICH THE LITIGATION WENT OFF IN THE COURT OF
APPEALS BEEN RELIED ON BEFORE THE DISTRICT COURT IN AN APPROPRIATE
MOTION. 

IN THIS CASE THERE WAS NO SUCH DEVIATION FROM THE TRIAL ISSUES.  THE
CASE WENT TO THE JURY ON THE ISSUES OF DEFENDANT'S NEGLIGENCE IN
DEPARTING FROM AN ALLEGED COMMON CUSTOM, AND OF CAUSATION.  THESE
ISSUES WERE DULY PRESSED BEFORE THE TRIAL JUDGE AFTER VERDICT.  THE
CASE WENT AGAINST THE PETITIONER IN THE COURT OF APPEALS ON ONE OF
THEM.  IN CONTRAST TO THE SITUATION IN THE OTHER THREE CASES NO
POSSIBLE CLAIM OF SURPRISE CAN HERE FIND NOURISHMENT.  THE CONE, GLOBE
AND FOUNTAIN CASES, BEING DECISIVELY DIFFERENT FROM THIS CASE, CANNOT
GOVERN IT. 

LET ME SET OUT, SIDE BY SIDE, SO MUCH AS IS PERTINENT IN THE MOTION
MADE AFTER THE VERDICT IN THE MONTGOMERY WARD CASE AND THE MOTION MADE
IN THIS CASE. 

   MONTGOMERY WARD                      JOHNSON 

COMES THE DEFENDANT,             ON BEHALF OF THE DEFENDANT, 

MONTGOMERY WARD & COMPANY,       THE NEW YORK, NEW 

AND FILES ITS MOTION             HAVEN & HARTFORD RAILROAD, 

PRAYING THAT THE JURY'S VERDICT  I MOVE TO SET ASIDE 

HEREIN AND THE JUDGMENT          THE VERDICT ON THE GROUND 

RENDERED AND ENTERED 

THEREON BE SET ASIDE AND 

JUDGMENT ENTERED HEREIN 

FOR THE DEFENDANT NOTWITHSTANDING 

THE VERDICT, AND 

ITS MOTION FOR A NEW TRIAL IN 

THE ALTERNATIVE, AND AS 

GROUNDS THEREFOR STATES: 

A. ...  MOTION  ...  TO 

ENTER JUDGMENT  ...  . 

1.  THAT THE VERDICT IS          THAT IT IS CONTRARY TO THE 

CONTRARY TO THE LAW.             LAW 

2.  THAT THE VERDICT IS          AND CONTRARY TO THE EVIDENCE 

CONTRARY TO THE EVIDENCE. 

3.  THAT THE VERDICT IS 

CONTRARY TO THE LAW AND 

EVIDENCE. 

     *         *         *         *         * 

8.  THAT THE DEFENDANT           AND CONTRARY TO THE WEIGHT 

HAS FAILED TO PROVE BY A         OF THE EVIDENCE 

PREPONDERANCE OF THE 

EVIDENCE  ...  . 

B. ...  MOTION FOR A 

NEW TRIAL:  (SPECIFICATIONS 

1-8 SAME AS ABOVE.) 

9.  THAT THE DAMAGES             AND EXCESSIVE. 

FOUND BY THE JURY AND THE 

VERDICT BASED THEREON WERE 

EXCESSIVE.  (FN3) 

THE DIFFERENCE BETWEEN THE TWO MOTIONS IS NIL.  ONE WAS WRITTEN AND
FORMALLY LABELLED AND DETAILED.  WHILE THE OTHER WAS ORAL, IT WAS CAST
IN FORM FAMILIAR TO NEW YORK PRACTITIONERS AND ITS MEANING WAS NO LESS
CLEAR.  THE DISTRICT JUDGE'S ACTION DEMONSTRATES THIS.  BUT UNDER THE
COURT'S HOLDING IT IS NO LONGER SUFFICIENT TO MOVE FOR A DIRECTED
VERDICT AND THEN, WITHIN THE TIME PROVIDED BY THE RULE, ASK THE TRIAL
JUDGE EITHER TO GRANT JUDGMENT OR A NEW TRIAL.  THE COURT SO HOLDS EVEN
THOUGH THE TRIAL JUDGE ALREADY HAS EXPRESSLY STATED HE HAS RESERVED FOR
HIS CONSIDERATION AT THAT TIME (AFTER VERDICT) THE VERY ISSUE WHICH A
MOTION FOR JUDGMENT N.O.V. WOULD REPEAT.  THE OBVIOUS, WHICH IS LEFT
UNSAID IN COLLOQUIES BETWEEN COUNSEL AND THE COURT, MUST NOW BE
SPOKEN.  THE REDUNDANT, OMITTED OUT OF RESPECT FOR A JUDGE'S
INTELLIGENCE AND PROFESSIONAL COMPETENCE, MUST ALWAYS BE SPELLED OUT. 
THE PARTIES MUST BE SURE TO INDULGE THE ANCIENT WEAKNESS OF THE LAW FOR
STYLIZED REPETITION, AND IT IS NECESSARY THAT THE JUDGE ANSWER THE SAME
QUESTION TWICE BEFORE HIS ANSWER IS TO BE RECOGNIZED.  IN THIS WAY DO
WE CONDUCE "TO THE EFFICIENCY AND THE ECONOMY OF THE ADMINISTRATION OF
JUSTICE."  FEDERAL RULES OF CIVIL PROCEDURE, PROCEEDINGS OF THE
INSTITUTE AT WASHINGTON, D.C. AND OF THE SYMPOSIUM IN NEW YORK CITY, 87
(1938)(CHESNUT, J.). 

IF ON THAT FATEFUL FRIDAY THE 13TH, IN APRIL, 1951, SOMETIME SHORTLY
AFTER 10:30 IN THE MORNING WHEN THE JURY'S VERDICT WAS OPENED, THE
DEFENDANT HAD PREFACED HIS ARGUMENT BY SAYING, "YOUR HONOR, BEFORE
ADDRESSING MYSELF TO MY PENDING MOTION FOR DIRECTED VERDICT, ON WHICH
YOUR HONOR RESERVED DECISION, AND WHICH OF COURSE NOW NECESSARILY IS A
MOTION FOR JUDGMENT N.O.V., I FIRST WANT TO RENEW THAT MOTION," HE
WOULD HAVE AVOIDED TODAY'S DECISION AGAINST HIM, ALTHOUGH HE WOULD NOT
HAVE ADDED ONE JOT OF INFORMATION TO THAT OF COUNSEL FOR THE PLAINTIFF
OR OF THE JUDGE REGARDING THE ISSUES BEFORE THE COURT FOR DECISION.  TO
REQUIRE THIS IS TO MAKE RULE 50(B) READ: 

"WITHIN 10 DAYS AFTER THE RECEPTION OF A VERDICT, A PARTY WHO HAS
MOVED FOR A DIRECTED VERDICT MAY MOVE TO HAVE THE VERDICT AND ANY
JUDGMENT ENTERED THEREON SET ASIDE.  SUCH A MOTION WILL BE TREATED AS A
MOTION TO HAVE JUDGMENT ENTERED IN ACCORDANCE WITH HIS MOTION FOR A
DIRECTED VERDICT IF HE REPEATS THE MOTION FOR DIRECTED VERDICT OR
STATES TO THE COURT THAT HE NOW MAKES A 'MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT.'" 

THE FEDERAL RULES OF CIVIL PROCEDURE ARE THE PRODUCT OF THE PROGRESS
OF CENTURIES FROM THE MEDIEVAL COURT-ROOM CONTEST - A THINLY DISGUISED
VERSION OF TRIAL BY COMBAT - TO MODERN LITIGATION.  "PROCEDURE IS THE
MEANS; FULL, EQUAL AND EXACT ENFORCEMENT OF SUBSTANTIVE LAW IS THE
END."  POUND, THE ETIQUETTE OF JUSTICE, 3 PROCEEDINGS NEB. ST. BAR
ASSN.  231 (1909).  THIS BASIC CONSIDERATION UNDERLIES THE RULES; WITH
IT IN MIND WE CONSTRUED RULE 50(B) IN THE MONTGOMERY WARD CASE. 

IT HAS BEEN SAID OF THE GREAT BARON PARKE:  "HIS FAULT WAS AN ALMOST
SUPERSTITIOUS REVERENCE FOR THE DARK TECHNICALITIES OF SPECIAL
PLEADING, AND THE REFORMS INTRODUCED BY THE COMMON LAW PROCEDURE ACTS
OF 1854 AND 1855 OCCASIONED HIS RESIGNATION."  (SIR JAMES PARKE, 15
D.N.B. 226.) 

BARON PARKE DESPAIRED PREMATURELY.  IF HE HAD WAITED ANOTHER HUNDRED
YEARS THIS COURT TODAY WOULD HAVE VINDICATED HIS BELIEF THAT JUDGES
MUST BE IMPRISONED IN TECHNICALITIES OF THEIR OWN DEVISING, THAT
OBEDIENCE TO LIFELESS FORMALITY IS THE WAY TO JUSTICE. 

FN1  "(B)  RESERVATION OF DECISION ON MOTION.  WHENEVER A MOTION FOR
A DIRECTED VERDICT MADE AT THE CLOSE OF ALL THE EVIDENCE IS DENIED OR
FOR ANY REASON IS NOT GRANTED, THE COURT IS DEEMED TO HAVE SUBMITTED
THE ACTION TO THE JURY SUBJECT TO A LATER DETERMINATION OF THE LEGAL
QUESTIONS RAISED BY THE MOTION.  WITHIN 10 DAYS AFTER THE RECEPTION OF
A VERDICT, A PARTY WHO HAS MOVED FOR A DIRECTED VERDICT MAY MOVE TO
HAVE THE VERDICT AND ANY JUDGMENT ENTERED THEREON SET ASIDE AND TO HAVE
JUDGMENT ENTERED IN ACCORDANCE WITH HIS MOTION FOR A DIRECTED VERDICT;
OR IF A VERDICT WAS NOT RETURNED SUCH PARTY, WITHIN 10 DAYS AFTER THE
JURY HAS BEEN DISCHARGED, MAY MOVE FOR JUDGMENT IN ACCORDANCE WITH HIS
MOTION FOR A DIRECTED VERDICT.  A MOTION FOR A NEW TRIAL MAY BE JOINED
WITH THIS MOTION, OR A NEW TRIAL MAY BE PRAYED FOR IN THE ALTERNATIVE. 
IF A VERDICT WAS RETURNED THE COURT MAY ALLOW THE JUDGMENT TO STAND OR
MAY REOPEN THE JUDGMENT AND EITHER ORDER A NEW TRIAL OR DIRECT THE
ENTRY OF JUDGMENT AS IF THE REQUESTED VERDICT HAD BEEN DIRECTED.  IF NO
VERDICT WAS RETURNED THE COURT MAY DIRECT THE ENTRY OF JUDGMENT AS IF
THE REQUESTED VERDICT HAD BEEN DIRECTED OR MAY ORDER A NEW TRIAL." 

FN2  THE POST-VERDICT MOTIONS IN CONE AND GLOBE (THERE WAS NONE IN
FOUNTAIN) SPECIFICALLY PRAYED FOR A NEW TRIAL, AND THE GROUNDS THEY
RECITED WENT WHOLLY TO THE ISSUE OF WHETHER OR NOT A NEW TRIAL WOULD BE
PROPER.  THE CONE MOTION RELIED ON NEWLY DISCOVERED EVIDENCE. 
MOREOVER, IT WAS MUCH TOO LATE TO PRAY FOR JUDGMENT N.O.V. UNDER RULE
50(B).  IN GLOBE THE MOTION CLAIMED ERROR IN RULINGS ON EVIDENCE AND IN
TAKING THE CASE FROM THE JURY.  THE MOTION IN OUR CASE, TIMELY UNDER
RULE 50(B), WAS "TO SET ASIDE THE VERDICT" ON GROUNDS WHICH SUPPORTED
BOTH JUDGMENT N.O.V. AND THE GRANT OF A NEW TRIAL.  HAVING HEARD
ARGUMENT AND REQUESTED BRIEFS AND THE TRIAL TRANSCRIPT, THE JUDGE HELD
THAT THE EVIDENCE PERMITTED RECOVERY.  IT COULD NOT DO SO, OF COURSE,
IF IT WERE INSUFFICIENT IN LAW.  NOR SHOULD THE FACT BE FORGOTTEN THAT
THE JUDGE WAS DEALING WITH ARGUMENTS WHICH HAD BEEN PRESENTED TO HIM
BEFORE ON A MOTION FOR A DIRECTED VERDICT, AS TO WHICH HE HAD RESERVED
DECISION.  MOTIONS FOR DIRECTED VERDICT HAD BEEN MADE BY DEFENDANTS IN
CONE AND GLOBE AS WELL, BUT THEY HAD BEEN EXPRESSLY DENIED BEFORE THE
VERDICT.    FN3  THE SPECIFICATIONS WHICH I DO NOT QUOTE DO NOT ADD
MATERIALLY TO THE MOTION FOR JUDGMENT N.O.V. IN THE MONTGOMERY WARD
CASE. 

FOR DISSENTING OPINION OF MR. JUSTICE MINTON, SEE POST, P. 65. 

APPENDIX TO OPINION OF FRANKFURTER, J., OMITTED. 

MR. JUSTICE MINTON, DISSENTING. 

I AGREE WITH ALL THAT MR. JUSTICE FRANKFURTER HAS SAID IN UPHOLDING
THE ACTION OF THE COURT OF APPEALS IN RETURNING THE CASE TO THE
DISTRICT COURT WITH DIRECTIONS TO ENTER A VERDICT FOR THE DEFENDANT.  I
WOULD ADD ANOTHER REASON WHY I THINK THE ACTION WAS VALID. 

AFTER THE CONE, GLOBE LIQUOR AND FOUNTAIN CASES WERE DECIDED,
CONGRESS IN 1948 REVISED THE JUDICIAL CODE, AND IN 28 U.S.C. SEC. 2106
CLEARLY AUTHORIZED THE ACTION TAKEN BY THE COURT OF APPEALS HERE. 

"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." 

TO ME, THIS STATUTE IS CONTROLLING.  WE FOUND IT CONTROLLING OF THE
ACTION OF THE COURT OF APPEALS IN A CRIMINAL CASE.  BRYAN V. UNITED
STATES, 338 U.S. 552.  MR. JUSTICE BLACK, WHO NOW SPEAKS FOR THE COURT,
DISSENTED IN THE BRYAN CASE BECAUSE HE THOUGHT CONE CONTROLLING.  BY
ACT OF CONGRESS, THE DISCRETION NOW RESTS WITH THE COURT OF APPEALS TO
GRANT A NEW TRIAL OR TO DIRECT A VERDICT ACCORDING TO LAW ON THE RECORD
ALREADY MADE. 
..END :
























UNITED STATES V. HENNING 344 U.S. 66 


NO. 10.  ARGUED APRIL 1, 1952.  - REARGUED OCTOBER 14, 1952.  - DECIDED
NOVEMBER 17, 1952.  - 191 F.2D 588, REVERSED. 


AN INSURED UNDER A POLICY OF NATIONAL SERVICE LIFE INSURANCE WHO HAD
DESIGNATED HIS FATHER AS SOLE BENEFICIARY, DIED IN ACTIVE SERVICE IN
JULY 1945.  FIVE MONTHS LATER THE FATHER DIED, AND FOUR YEARS LATER THE
FATHER'S SECOND WIFE (THE INSURED'S STEPMOTHER) DIED.  NEITHER HAD
RECEIVED ANY PART OF THE POLICY'S PROCEEDS.  THE INSURED'S NATURAL
MOTHER SURVIVED.  THE DISTRICT COURT FOUND THAT THE STEPMOTHER HAD
STOOD IN LOCO PARENTIS TO THE INSURED FOR AT LEAST ONE YEAR PRIOR TO
HIS ENTRY INTO ACTIVE SERVICE, AND ALSO THAT, WITHIN THE MEANING OF
SEC. 602(H)(3)(C) OF THE NATIONAL SERVICE LIFE INSURANCE ACT, BOTH THE
STEPMOTHER AND THE NATURAL MOTHER "LAST BORE" THE PARENTAL RELATIONSHIP
TO THE INSURED.  HELD: 

1.  INSTALLMENTS OF THE PROCEEDS OF THE POLICY WHICH, THOUGH ACCRUED,
HAD NOT BEEN RECEIVED BY A BENEFICIARY PRIOR TO HIS DEATH, CANNOT BE
AWARDED TO THE ESTATE OF SUCH DECEASED BENEFICIARY, SINCE SEC. 602(I)
CONDITIONS PAYMENTS ON THE BENEFICIARY'S BEING ALIVE TO RECEIVE THEM. 
PP. 69-76. 

2.  THE INSURED'S NATURAL MOTHER IS A SURVIVING BENEFICIARY ENTITLED
TO TAKE BY DEVOLUTION UNDER SEC. 602(H)(3)(C) OF THE ACT.  PP. 76-78. 

(A)  THE FINDING THAT THE STEPMOTHER "LAST BORE" THE PARENTAL
RELATIONSHIP TO THE INSURED, WITHIN THE MEANING OF SEC. 602(H)(3)(C),
DOES NOT PRECLUDE A FINDING THAT THE INSURED'S NATURAL MOTHER ALSO
"LAST BORE" THAT RELATIONSHIP.  PP. 76-77. 

(B)  THIS COURT ACCEPTS WHAT THE COURTS BELOW DEEMED A CONTINUING
PARENTAL RELATIONSHIP BETWEEN THE INSURED AND HIS NATURAL MOTHER.  PP.
77-78. 

(C)  SINCE THE INSURED'S NATURAL MOTHER IS A SURVIVING BENEFICIARY
ENTITLED TO TAKE BY DEVOLUTION UNDER SEC. 602(H)(3)(C), SHE IS THE
"BENEFICIARY TO WHOM PAYMENT IS FIRST MADE," WITHIN THE MEANING OF SEC.
602(H)(1) AND (2).  PP. 77-78. 

3.  SINCE THERE IS A SURVIVING BENEFICIARY ENTITLED TO TAKE BY
DEVOLUTION UNDER SEC. 602(H)(3)(C), THE GOVERNMENT MAY NOT INVOKE THE
PROVISIONS OF SEC. 602(J) TO WITHHOLD, FOR THE BENEFIT OF THE NATIONAL
SERVICE LIFE INSURANCE FUND, PAYMENT OF THE INSTALLMENTS ACCRUED FROM
THE DATE OF THE INSURED'S DEATH.  P. 78. 

UNITED STATES V. HENNING ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

IN AN ACTION FOR A JUDICIAL DETERMINATION OF THE PROPER BENEFICIARY
UNDER A POLICY OF NATIONAL SERVICE LIFE INSURANCE, THE DISTRICT COURT
DIVIDED THE PROCEEDS AMONG THREE PARTIES.  93 F. SUPP. 380.  THE COURT
OF APPEALS AGREED.  191 F.2D 588.  THIS COURT GRANTED CERTIORARI.  342
U.S. 917.  REVERSED, P. 78. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

CONFLICTING CLAIMS TO THE PROCEEDS OF A POLICY OF NATIONAL SERVICE
LIFE INSURANCE FRAME THE CONTROVERSY BEFORE US.  DISPOSITION OF THE
CAUSE DEPENDS ON OUR INTERPRETATION OF THE NATIONAL SERVICE LIFE
INSURANCE ACT OF 1940, AS AMENDED, 38 U.S.C. SEC. 801 ET SEQ., WHICH IN
PERTINENT PART (FN1) PROVIDES: 

SEC. 602(G).  "THE INSURANCE SHALL BE PAYABLE ONLY TO A WIDOW,
WIDOWER, CHILD  ...  , PARENT, BROTHER OR SISTER OF THE INSURED.  THE
INSURED SHALL HAVE THE RIGHT TO DESIGNATE THE BENEFICIARY OR
BENEFICIARIES OF THE INSURANCE, BUT ONLY WITHIN THE CLASSES HEREIN
PROVIDED  ...  ." 

SEC. 601(F).  "THE TERMS 'PARENT', 'FATHER', AND 'MOTHER' INCLUDE A
FATHER, MOTHER, FATHER THROUGH ADOPTION, MOTHER THROUGH ADOPTION AND
PERSONS WHO HAVE STOOD IN LOCO PARENTIS TO A MEMBER OF THE MILITARY OR
NAVAL FORCES AT ANY TIME PRIOR TO ENTRY INTO ACTIVE SERVICE FOR A
PERIOD OF NOT LESS THAN ONE YEAR  ...  ." 

SEC. 602(I).  "IF NO BENEFICIARY IS DESIGNATED BY THE INSURED OR IF
THE DESIGNATED BENEFICIARY DOES NOT SURVIVE THE INSURED, THE
BENEFICIARY SHALL BE DETERMINED IN ACCORDANCE WITH THE ORDER SPECIFIED
IN SUBSECTION (H)(3) OF THIS SECTION AND THE INSURANCE SHALL BE PAYABLE
IN EQUAL MONTHLY INSTALLMENTS IN ACCORDANCE WITH SUBSECTION (H)  ...  .
THE RIGHT OF ANY BENEFICIARY TO PAYMENT OF ANY INSTALLMENTS SHALL BE
CONDITIONED UPON HIS OR HER BEING ALIVE TO RECEIVE SUCH PAYMENTS.  NO
PERSON SHALL HAVE A VESTED RIGHT TO ANY INSTALLMENT OR INSTALLMENTS OF
ANY SUCH INSURANCE AND ANY INSTALLMENTS NOT PAID TO A BENEFICIARY
DURING SUCH BENEFICIARY'S LIFETIME SHALL BE PAID TO THE BENEFICIARY OR
BENEFICIARIES WITHIN THE PERMITTED CLASS NEXT ENTITLED TO PRIORITY, AS
PROVIDED IN SUBSECTION (H)  ...  ." 

SEC. 602(H)(3).  "ANY INSTALLMENTS CERTAIN OF INSURANCE REMAINING
UNPAID AT THE DEATH OF ANY BENEFICIARY SHALL BE PAID IN EQUAL MONTHLY
INSTALLMENTS IN AN AMOUNT EQUAL TO THE MONTHLY INSTALLMENTS PAID TO THE
FIRST BENEFICIARY, TO THE PERSON OR PERSONS THEN IN BEING WITHIN THE
CLASSES HEREINAFTER SPECIFIED AND IN THE ORDER NAMED, UNLESS DESIGNATED
BY THE INSURED IN A DIFFERENT ORDER: 

     *         *         *         *         * 

"(C)  IF NO WIDOW, WIDOWER, OR CHILD, TO THE PARENT OR PARENTS OF THE
INSURED WHO LAST BORE THAT RELATIONSHIP, IF LIVING, IN EQUAL SHARES;
...  ." 

SEC. 602(J).  "NO INSTALLMENTS OF SUCH INSURANCE SHALL BE PAID TO THE
HEIRS OR LEGAL REPRESENTATIVES AS SUCH OF THE INSURED OR OF ANY
BENEFICIARY, AND IN THE EVENT THAT NO PERSON WITHIN THE PERMITTED CLASS
SURVIVES TO RECEIVE THE INSURANCE OR ANY PART THEREOF NO PAYMENT OF THE
UNPAID INSTALLMENTS SHALL BE MADE  ...  ." 

THE MATERIAL FACTS ARE NOT DISPUTED.  EUGENE C. HENNING, A NAVAL
RESERVIST INSURED UNDER A $10,000 TERM POLICY OF NATIONAL SERVICE LIFE
INSURANCE WHICH NAMED HIS FATHER AS SOLE BENEFICIARY, (FN2) DIED ON
JULY 4, 1945, IN HIS COUNTRY'S SERVICE.  OTTO F. HENNING, THE FATHER,
DIED FIVE MONTHS LATER, WITHOUT HAVING RECEIVED ANY PART OF THE
POLICY'S PROCEEDS.  BESSIE, HIS SECOND WIFE AND THE INSURED'S
STEPMOTHER, AND CLARA BELLE, HIS FORMER WIFE AND THE INSURED'S NATURAL
MOTHER, SURVIVED.  BOTH SURVIVORS SUBSEQUENTLY FILED CLAIMS TO THE
PROCEEDS OF THE SERVICEMAN'S POLICY.  ON JUNE 30, 1949, DURING THE
PENDENCY OF AN INTERPLEADER ACTION FOR A JUDICIAL DETERMINATION OF THE
PROPER TAKER, BESSIE DIED, LEAVING THE NATURAL MOTHER AS SOLE SURVIVING
CLAIMANT.  THE GOVERNMENT THEREUPON ASSERTED THAT BESSIE HAD LAST BORNE
THE PARENTAL RELATIONSHIP TO THE INSURED; THAT CONSEQUENTLY CLARA BELLE
COULD NOT COME WITHIN THE STATUTORY CLASS OF DEVOLUTIONARY TAKERS; AND
THAT, IN THE ABSENCE OF COGNIZABLE CLAIMS TO THE PROCEEDS, THEY ESCHEAT
TO THE NATIONAL SERVICE LIFE INSURANCE FUND. 

THE DISTRICT COURT'S JUDGMENT, HOWEVER, DIVIDED THE PROCEEDS, PAYABLE
IN INSTALLMENTS, AMONG THREE PARTIES.  (FN3)  THE COURT READ THE
STATUTE AS IMPOSING NO BAR TO THE AWARD OF MATURED BUT UNPAID
INSTALLMENTS TO THE ESTATES OF DECEASED BENEFICIARIES.  IT THEREFORE
AWARDED TO THE FATHER'S ESTATE THE INSTALLMENTS WHICH HAD MATURED
DURING HIS LIFETIME BUT REMAINED UNPAID.  AND, FINDING THAT BESSIE, THE
STEPMOTHER, HAD STOOD IN LOCO PARENTIS TO THE INSURED FOR AT LEAST ONE
YEAR PRIOR TO HIS ENTRY INTO ACTIVE SERVICE, IT CONCLUDED THAT BOTH SHE
AND CLARA BELLE, THE NATURAL MOTHER, WERE PARENTS WHO "LAST BORE THAT
RELATIONSHIP" AND THUS QUALIFIED TO TAKE THE REMAINING PROCEEDS BY
DEVOLUTION UNDER SEC. 602(H)(3)(C) OF THE ACT.  THE INSTALLMENTS WHICH
HAD MATURED DURING THE STEPMOTHER'S LIFETIME WERE SHARED EQUALLY
BETWEEN HER ESTATE AND CLARA BELLE; INSTALLMENTS THEREAFTER MATURING
WERE AWARDED TO THE LATTER ALONE. 

THE COURT OF APPEALS AGREED.  (FN4)  CONCEDING THAT THE LITERAL
WORDING OF THE STATUTE WENT "A LONG WAY" TOWARD SUSTAINING THE
GOVERNMENT'S OPPOSING CONTENTIONS, THE COURT, FEARFUL OF UNFORTUNATE
CONSEQUENCES THAT MIGHT FLOW FROM STRICT ADHERENCE TO THE TEXT OF THE
ACT, NEVERTHELESS RULED THAT ESTATES OF DECEASED BENEFICIARIES MIGHT
TAKE.  AND, NOTING ITS DISAGREEMENT WITH THE SECOND CIRCUIT'S RULING IN
BAUMET V. UNITED STATES, (FN5) IT FURTHER HELD THAT ONE IN LOCO
PARENTIS WHO QUALIFIED AS A BENEFICIARY UNDER SEC. 602(H)(3)(C) OF THE
ACT DID NOT NECESSARILY EXCLUDE FROM PARTICIPATION IN POLICY PROCEEDS A
NATURAL PARENT OF THE SAME SEX WHO ALSO "LAST BORE" THE PARENTAL
RELATIONSHIP TO THE INSURED. 

WE GRANTED CERTIORARI TO SETTLE PROBLEMS IMPORTANT IN THE
ADMINISTRATION OF THE NATIONAL SERVICE LIFE INSURANCE ACT AND TO
RESOLVE CONFLICTING STATUTORY INTERPRETATIONS BY THE COURTS OF
APPEALS.  342 U.S. 917. 

CONGRESS THROUGH WAR RISK INSURANCE LEGISLATION HAS LONG SOUGHT TO
PROTECT FROM FINANCIAL HARDSHIP THE SURVIVING FAMILIES OF THOSE WHO HAD
SERVED UNDER THE NATION'S FLAG.  COMPREHENSIVE INSURANCE PROGRAMS
ENACTED IN 1917, 1940, AND 1951 REFLECT THIS CONSISTENT LEGISLATIVE
CONCERN IN TIMES OF CRISIS.  SINCE PUBLIC FUNDS WERE TO MEET A LARGE
PART OF THE PROGRAMS' COST, (FN6) THE STATUTES CLOSELY CIRCUMSCRIBED
THE CLASS OF PERMISSIBLE TAKERS TO PRECLUDE THOSE NOT THE OBJECT OF
CONGRESSIONAL CONCERN FROM DRAINING THE TREASURY WHEN HAZARDS OF WAR
SERVICE MULTIPLIED POLICY MATURITIES.  THE WAR RISK INSURANCE ACT OF
1917 ENUMERATED ONLY THE SERVICEMAN'S SPOUSE AND IMMEDIATE BLOOD
RELATIVES AS PERMISSIBLE BENEFICIARIES OF POLICY PROCEEDS; (FN7) A
BENEFICIARY'S INTEREST WAS EXTINGUISHED BY DEATH.  (FN8)  THE NATIONAL
SERVICE LIFE INSURANCE ACT OF 1940, AGAIN CONSTRICTING THE CLASS OF
PERMISSIBLE TAKERS, (FN9) RESTATES THE LEGISLATIVE PURPOSE OF THE PRIOR
ACT.  IN THE SERVICEMEN'S INDEMNITY ACT OF 1951 THE PREVIOUS
RESTRICTIONS ONCE MORE APPEAR, REITERATED IN A FLAT PROVISO:  "NO
PAYMENT SHALL BE MADE TO THE ESTATE OF ANY DECEASED PERSON."  (FN10)
ACCENTING THESE WARTIME LIMITATIONS IS THE LIBERALIZING LEGISLATION BY
WHICH CONGRESS AFTER CESSATION OF HOSTILITIES IN WORLD WARS I AND II
PLACED ITS INSURANCE PROGRAMS ON MORE NEARLY A COMMERCIAL BASIS. 
AMENDMENTS TO THE WAR RISK INSURANCE ACT IN 1919 EXPANDED THE PERMITTED
BENEFICIARY CLASS TO INCLUDE MORE DISTANT RELATIVES OF THE INSURED,
AND, SIGNIFICANTLY, PROVIDED THAT INSTALLMENTS PAYABLE BUT UNPAID UPON
A BENEFICIARY'S DEATH MIGHT GO TO HIS ESTATE.  (FN11) THIS BROADENING
LEGISLATION WAS SUBSTANTIALLY REENACTED IN THE WORLD WAR VETERANS' ACT
OF 1924.  (FN12)  AND AFTER WORLD WAR II, CONGRESS IN 1946 ONCE MORE
LIBERALIZED THE BENEFITS OF THE NATIONAL SERVICE LIFE INSURANCE ACT. 
AS TO POLICIES MATURING AFTER AUGUST 1946 IT REMOVED THE RESTRICTIONS
ON THE INSURED'S CHOICE OF BENEFICIARY, AND IN CERTAIN INSTANCES
PERMITTED THE PAYMENT OF INSTALLMENT PROCEEDS TO DECEASED
BENEFICIARIES' ESTATES.  (FN13)  FROM THIS COURSE OF LEGISLATION AN
UNMISTAKABLE PATTERN OF CONGRESSIONAL POLICY EMERGES:  STATUTES ENACTED
IN TIME OF WAR CRISIS NARROW THE RANGE OF BENEFICIARIES; POST-WAR
LEGISLATION BROADENS IT.  (FN14) 

OF THE POLICY PROCEEDS HERE IN CONTROVERSY, MUST TAKE MEANING FROM ITS
HISTORICAL SETTING.  CF. UNITED STATES V. ZAZOVE, 334 U.S. 602 (1948). 
SUBSECTION (I) CONDITIONS THE RIGHT OF A BENEFICIARY TO THE PAYMENT OF
ANY INSTALLMENTS "UPON HIS OR HER BEING ALIVE TO RECEIVE SUCH
PAYMENTS"; IT ADDS THAT "NO PERSON SHALL HAVE A VESTED RIGHT TO ANY
INSTALLMENT  ...  AND ANY INSTALLMENTS NOT PAID TO A BENEFICIARY DURING
SUCH BENEFICIARY'S LIFETIME SHALL BE PAID TO THE BENEFICIARY OR
BENEFICIARIES WITHIN THE PERMITTED CLASS NEXT ENTITLED TO PRIORITY  ...
."  AND SUBSECTION (J), SO AS TO DISCLAIM ANY POSSIBLE ANALOGY TO
PRIOR PEACETIME LEGISLATION WHICH AT ONE TIME HAD BEEN CONSTRUED TO
CONFER SUCH RIGHTS, (FN15) EMPHASIZES THAT "NO INSTALLMENTS OF SUCH
INSURANCE SHALL BE PAID TO THE HEIRS OR LEGAL REPRESENTATIVES AS SUCH
OF THE INSURED OR OF ANY BENEFICIARY."  ON THE CONTRARY, THE SUBSECTION
DIRECTS "IN THE EVENT THAT NO PERSON WITHIN THE PERMITTED CLASS
SURVIVES TO RECEIVE THE INSURANCE OR ANY PART THEREOF NO PAYMENT OF THE
UNPAID INSTALLMENTS SHALL BE MADE." 

IN THE FACE OF THIS CLEAR STATUTORY LANGUAGE WE ARE NEVERTHELESS
URGED TO DISTINGUISH INSTALLMENTS NEITHER ACCRUED NOR PAID FROM ACCRUED
INSTALLMENTS THAT AN INTENDED BENEFICIARY FOR SOME REASON HAS NOT
RECEIVED.  WHEREAS THE FORMER CONCEDEDLY MAY NOT PASS TO THE ESTATE OF
A DECEASED BENEFICIARY, IT IS ARGUED THAT THE LATTER MAY.  FOR TO HOLD
OTHERWISE, THE ARGUMENT RUNS, MIGHT RESULT IN "AMAZING CONSEQUENCES";
THE GOVERNMENT, FOR EXAMPLE, BY SIMPLY WITHHOLDING PAYMENTS UNTIL ONE
BENEFICIARY DIED MIGHT UNJUSTLY ENRICH ANOTHER IN A LOWER PRIORITY, OR,
IF NONE SURVIVED, FAVOR THE PUBLIC PURSE; MOREOVER, A LOW-PRIORITY
BENEFICIARY BY LITIGATING A SPECIOUS CLAIM MIGHT PROFITABLY SUSPEND
PAYMENT UNTIL THE HIGHER-PRIORITY TAKERS DIED. 

WE REJECT THE CONCLUSION AND ITS PREMISES.  THE ASSERTED DISTINCTION
ASSUMES THAT WHEN CONGRESS IN SEC. 602(I) CONDITIONED PAYMENT TO
BENEFICIARIES ON THEIR "BEING ALIVE TO RECEIVE SUCH PAYMENTS" IT MEANT
SOMETHING ELSE; THAT IT EXEMPTED, WITHOUT WORDS OR OTHER INDICATION,
INSTALLMENTS ACCRUED BUT NOT YET PAID.  BUT TO READ SUCH LANGUAGE INTO
SUBSECTION (I) STRIPS IT OF SIGNIFICANCE; IF LIMITED IN APPLICATION TO
UNMATURED INSTALLMENTS THE STRICTURES OF THAT SUBSECTION WOULD BE MERE
SURPLUSAGE, FORBIDDING WHAT THE PRIORITY LADDER OF SEC. 602(H)(3) IN
ANY EVENT COULD NOT LOGICALLY PERMIT.  WE CANNOT SO NULLIFY THE CLEAR
IMPORT OF SUBSECTION (I).  IN DRAFTING THE 1940 STATUTE, CONGRESS MUST
HAVE BEEN FULLY COGNIZANT OF INSURANCE LEGISLATION OF THE PRIOR WAR. 
THE 1917 WAR RISK INSURANCE ACT WAS WELL UNDERSTOOD TO PROHIBIT PAYMENT
OF ACCRUED INSTALLMENTS TO THE ESTATES OF BENEFICIARIES WHO DID NOT
LIVE TO TAKE THEIR INTENDED SHARES; (FN16) THE VERY CONTENTION MADE
HERE TODAY WAS THEN EXAMINED AND REJECTED.  (FN17)  NO PEACETIME
AMENDMENTS, AS THOSE WHICH IN 1919 AND 1924 SPECIFICALLY ALTERED THE
DELIBERATE WARTIME RESULT, CAN AID THE CONTENTION PRESENTED TODAY. 
(FN18) THE CONCLUSION IS IRRESISTIBLE THAT WHEN IN 1940 THE LAW
CONDITIONED PAYMENTS ON THE BENEFICIARY'S BEING ALIVE TO RECEIVE THEM,
CONGRESS SAID WHAT IT MEANT AND MEANT WHAT IT SAID.  WERE MORE NEEDED,
THE CONSISTENT COURSE OF ADMINISTRATIVE PRACTICE UNDER THE ACTS OF 1917
AND 1940 APPLIED THE STATUTES TO BAR PAYMENTS TO DECEASED
BENEFICIARIES' ESTATES; (FN19) THAT FACTOR, TOO, MUST BE ACCORDED
WEIGHT.  UNITED STATES V. ZAZOVE, SUPRA; UNITED STATES V. CITIZENS LOAN
& TRUST CO., 316 U.S. 109 (1942); UNITED STATES V. MADIGAN, 300 U.S.
500 (1937).  WE ARE NOT MINDFUL OF THE FACT THAT UNANTICIPATED DELAY IN
THE PAYMENT OF POLICY PROCEEDS MAY WITHHOLD FROM A BENEFICIARY THE
FUNDS THAT CONGRESS INTENDED HIM TO GET; SEVEN YEARS AND THREE DEATHS
HAVE NOT YET BROUGHT THIS LITIGATION TO AN END.  BUT WE CANNOT
APPORTION THE BLAME FOR THIS CRUEL DELAY.  AND WE MAY SURELY NOT
SPECULATE THAT THE OFFICIALS ENTRUSTED WITH THE ADMINISTRATION OF THE
ACT WOULD ATTEMPT TO ENRICH OTHER BENEFICIARIES OR THE TREASURY ITSELF
BY A SARDONIC WAITING GAME. 

WE CONCLUDE THAT IN THIS CRISIS LEGISLATION CONGRESS, FULLY AWARE OF
THE SOMETIMES INEVITABLE DELAYS IN PAYMENT, PREFERRED THE OCCASIONALLY
HARSH RESULT TO A COURSE OF ACTION WHICH WOULD PERMIT FUNDS INTENDED
FOR LIVING MEMBERS OF THE NARROW STATUTORY CLASS OF PERMISSIBLE TAKERS
TO SEEP DOWN TO AN ENLARGED CLASS OF SUB-BENEFICIARIES CREATED NOT BY
THE ACT ITSELF BUT BY INTENDED BENEFICIARIES' TESTAMENTARY PLANS. 
COURTS MAY NOT FLOUT SO UNMISTAKABLE A LEGISLATIVE PURPOSE, EXPRESSED
IN SO CLEAR A CONGRESSIONAL COMMAND.  UNITED STATES V. CITIZENS LOAN &
TRUST CO., SUPRA; WISSNER V. WISSNER, 338 U.S. 655 (1950).  WE HOLD
THAT THE AWARD OF ACCRUED INSTALLMENTS TO THE ESTATES OF DECEASED
BENEFICIARIES CANNOT STAND.    THERE REMAINS THE CONTROVERSY BETWEEN
THE NATURAL MOTHER AND THE UNITED STATES.  THE GOVERNMENT CONTENDS THAT
BECAUSE BESSIE, THE STEPMOTHER, HAD STOOD IN LOCO PARENTIS TO THE
INSURED AT THE TIME OF HIS DEATH, SHE WAS THE MATERNAL PARENT "WHO LAST
BORE THAT RELATIONSHIP" WITHIN THE MEANING OF SEC. 602(H)(3)(C);
CONSEQUENTLY CLARA BELLE, THE NATURAL MOTHER, DESPITE A DISTRICT COURT
FINDING THAT SHE, TOO, "LAST BORE THAT RELATIONSHIP," WAS DISPLACED AND
FOREVER LOST ANY RIGHT TO TAKE BY DEVOLUTION UNDER THE ACT.  IN
ESSENCE, THE ARGUMENT IS THAT NO MORE THAN ONE PARENT OF EACH SEX MAY
CONTEMPORANEOUSLY MEET THE TEST IMPOSED BY THE ACT; THE "LAST" PARENT
TAKES ALL, TO THE EXCLUSION OF OTHERS.  AND SINCE THE "LAST" PARENT IS
NOW DEAD, NO ONE MAY TAKE. 

WE CANNOT AGREE.  WHILE THE CONTENTION HAS THE MERIT OF SIMPLICITY,
SIMPLICITY CANNOT SUPPLANT STATUTORY INTERPRETATION.  SECTION
602(H)(3)(C), TOO, HAS A HISTORICAL SETTING.  THE NATIONAL SERVICE LIFE
INSURANCE ACT AS ENACTED IN 1940 CONFINED THE CLASS OF DEVOLUTIONARY
TAKERS TO THE SPOUSE AND BLOOD RELATIVES OF THE INSURED.  (FN20)  SO
WRITTEN THE LEGISLATION PROVED UNSATISFACTORY IN PRACTICE.  AS
CONSTRUED, THAT PROVISION REQUIRED PAYMENT OF PROCEEDS TO AN INSURED'S
NATURAL PARENTS THOUGH THEY HAD ABANDONED HIM TO BE RAISED AND
SUPPORTED WHOLLY BY FOSTER PARENTS, THE LATTER BEING EXCLUDED FROM
PARTICIPATION BY THE ACT.  (FN21)  UPON RECOMMENDATION OF THE VETERANS'
ADMINISTRATOR, CONGRESS IN 1942 AMENDED THE ACT TO FORECLOSE THAT
RESULT.  PERSONS WHO STOOD IN LOCO PARENTIS TO THE INSURED FOR AT LEAST
ONE YEAR PRIOR TO HIS ENTRY INTO ACTIVE MILITARY SERVICE WERE INCLUDED
WITHIN THE ACT'S DEFINITION OF "PARENT."  AND THEY QUALIFIED AS TAKERS
BY DEVOLUTION IF THEY "LAST BORE THAT RELATIONSHIP" TO THE INSURED,
(FN22) AN ESSENTIAL STATUTORY CONDITION TO PRECLUDE THE PARCELING OUT
OF PROCEEDS AMONG A SERIES OF TRANSIENT HOSTS AND TO ASSURE FULL
BENEFITS TO THOSE MOST LIKELY TO MERIT THE INSURED'S FINANCIAL
SUPPORT.  THE THRUST OF THE AMENDMENT THUS WAS DIRECTED AT THE
INCLUSION OF WORTHY FOSTER PARENTS, NOT THE EXCLUSION OF NATURAL
PARENTS HOWEVER DESERVING. 

IT MAY WELL BE THAT ORDINARILY A FOSTER RELATIONSHIP DOES NOT BEGIN
UNTIL NATURAL PARENTAL TIES, REALISTICALLY VIEWED, ARE SEVERED; IF SO,
THE FOSTER PARENT BEARS THE PARENTAL RELATIONSHIP WHEN THE NATURAL
PARENT HAS CEASED TO BE SUCH IN TRUTH AND FACT.  AND IN THAT CASE, THE
CLEAR INTENT OF THE 1942 AMENDMENTS WOULD DEMAND THE EXCLUSION OF THE
NATURAL PARENT FROM PARTICIPATION IN THE PROCEEDS.   BUT SINCE THAT
DETERMINATION, BASED ON REALITIES, NOT STATUS, NECESSARILY MUST DEPEND
ON THE FACTS OF A PARTICULAR CASE, IT IS PECULIARLY WITHIN THE
COMPETENCE OF OTHERS WHO ARE CLOSER TO THE LIVING FACTS.  HERE THE
DISTRICT COURT FOUND THAT THE PARENTAL RELATIONSHIP CONTINUED UNTIL THE
INSURED'S DEATH, AND THE COURT OF APPEALS OBSERVED THAT "THERE IS NO
FINDING OR EVIDENCE OF ANY ESTRANGEMENT, TO SAY NOTHING OF ABANDONMENT,
OR EVEN ANY LACK OF PARENTAL FEELING, BETWEEN THE INSURED AND HIS
MOTHER, CLARA BELLE."  (FN23)  UNABLE TO FREEZE INTO FORMULA THE SUBTLE
FAMILY RELATIONS THAT MAY CONSTITUTE A GENUINE PARENTAL BOND, WE MUST
ACCEPT WHAT THE COURTS BELOW DEEMED A CONTINUING PARENTAL RELATIONSHIP
BETWEEN MOTHER AND SON. 

SINCE WE HOLD THAT CLARA BELLE HENNING, THE INSURED'S NATURAL MOTHER,
IS A SURVIVING BENEFICIARY ENTITLED TO TAKE BY DEVOLUTION UNDER SEC.
602(H)(3)(C), THE GOVERNMENT MAY OF COURSE NOT INVOKE THE PROVISIONS OF
SEC. 602(J) TO WITHHOLD, FOR THE BENEFIT OF THE NATIONAL SERVICE LIFE
INSURANCE FUND, PAYMENT OF THE INSTALLMENTS ACCRUED FROM THE DATE OF
THE INSURED'S DEATH.  IT EQUALLY FOLLOWS THAT THE METHOD OF
DISTRIBUTION OF INSTALLMENTS TO CLARA BELLE, AS "THE BENEFICIARY TO
WHOM PAYMENT IS FIRST MADE," MUST DEPEND ON HER AGE AT THE DATE OF
POLICY MATURITY, SUBJECT TO HER ELECTION OF AN OPTIONAL SETTLEMENT AS
PROVIDED BY SEC. 602(H)(1) AND (2) AND APPLICABLE ADMINISTRATIVE
REGULATIONS UNDER THE ACT.  (FN24)  REVERSED. 

FN1  IN 1946, THE ACT AMENDED PROSPECTIVELY IN SEVERAL MATERIAL
RESPECTS.  60 STAT. 781 ET SEQ. SINCE THE POLICY BEFORE US MATURED IN
1945, THE 1946 AMENDMENTS DO NOT GOVERN THE DISTRIBUTION OF THE
PROCEEDS HERE IN ISSUE. 

FN2  THE INSURED AT ONE TIME HAD DESIGNATED HIS WIFE AS BENEFICIARY
AND HIS FATHER AS CONTINGENT BENEFICIARY.  SUBSEQUENTLY HE PROPERLY
CHANGED THIS DESIGNATION AND NAMED HIS FATHER AS SOLE BENEFICIARY.  THE
MARRIAGE WAS DISSOLVED PRIOR TO THE INSURED'S DEATH.  THE EARLIER
DESIGNATION IS THUS NOT MATERIAL HERE. 

FN3  93 F. SUPP. 380 (D. MASS. 1950). 

FN4  191 F.2D 588 (1ST CIR. 1951).  THE COURT OF APPEALS REVERSED AND
REMANDED FOR PROPER COMPUTATION OF THE INSTALLMENTS WHICH IT FOUND DUE
THE VARIOUS PARTIES.  IN VIEW OF OUR DISPOSITION OF THE CASE, WE ARE
NOT NOW CONCERNED WITH THAT PART OF ITS HOLDING. 

FN5  191 F.2D 194 (1951), CERT. GRANTED, 343 U.S. 925, DECIDED THIS
DAY, POST, P. 82. 

FN6  E.G., SEC. 403, W.R.I.A. OF 1917, 40 STAT. 410; SEC. 602 ET
SEQ., N.S.L.I. ACT OF 1940, 38 U.S.C. SEC. 802 ET SEQ., SEE UNITED
STATES V. ZAZOVE, 334 U.S. 602, 616 (1948); SERVICEMEN'S INDEMNITY ACT
OF 1951, 38 U.S.C. (SUPP. V) SEC. 851 ET SEQ.; S. REP. NO. 91, 82D
CONG., 1ST SESS.; H.R. REP. NO. 6, 82D CONG., 1ST SESS. 

FN7  SEC. 402; 40 STAT. 409. 

FN8  CASSARELLO V. UNITED STATES, 271 F. 486; SALZER V. UNITED
STATES, 300 F. 764. 

FN9  SEC. 602(G); 38 U.S.C. SEC. 802(G). 

FN10  SEC. 3; 38 U.S.C. (SUPP. V) SEC. 852. 

FN11  SECS. 4, 13, 19; 41 STAT. 371, 375, 376. 

FN12  SECS. 3, 26; 43 STAT. 607, 614; 38 U.S.C. SECS. 424, 451. 

FN13  SECS. 4, 9; 60 STAT. 782, 785; 38 U.S.C. SECS. 802(G), (U). 

FN14  AS TO THE 1946 AMENDMENTS, SEE TESTIMONY OF MR. HAROLD W.
BREINING, ASSISTANT ADMINISTRATOR FOR INSURANCE, VETERANS'
ADMINISTRATION, HEARINGS BEFORE THE SUBCOMMITTEE ON INSURANCE OF THE
COMMITTEE ON WORLD WAR VETERANS' LEGISLATION, HOUSE OF REPRESENTATIVES,
79TH CONG., 2D SESS., ON H.R. 5772 AND H.R. 5773 (P. 1): 

"THE FUNDAMENTAL REASONS FOR LIBERALIZATION ARE THAT DURING THE WAR
THE BULK OF LOSSES ALL CAME FROM THE NATIONAL TREASURY.  THROUGH THIS
METHOD THE GOVERNMENT ASSUMED THE LOSSES DUE TO THE EXTRA HAZARDS OF
MILITARY AND NAVAL SERVICES.  SINCE THE GOVERNMENT DURING THE WAR BORE
THE MAJOR PART OF THE LOSSES IT WAS NOT FELT THAT THE GOVERNMENT WOULD
WANT TO PAY, INDIRECTLY THROUGH THIS CHANNEL, LARGE SUMS OF MONEY TO
PERSONS WHO MIGHT BE BENEFICIARIES ONLY BECAUSE OF SOME SPECULATION, OR
BECAUSE THE INSURED MIGHT WISH TO GIVE IT TO THEM AS DISTINGUISHED FROM
PERSONS WHO WERE LIKELY TO BE DEPENDENT OR TO WHOM THE INSURED MIGHT
OWE SOME SEMBLANCE OF A MORAL OBLIGATION.  THESE RESTRICTIONS
ORIGINALLY WERE PLACED IN THE LAW WITH THE CLEAR INTENT THAT THEY WOULD
BE ELIMINATED WHEN THE PERIOD OF THE EMERGENCY WAS OVER." 

FOR CONGRESSIONAL ATTITUDES IN ENACTING THE W.R.I.A. OF 1917, SEE,
E.G., 55 CONG. REC. 6761, 7690, AND H.R. REP. NO. 130, 65TH CONG., 1ST
SESS., PT. 3, P. 5.  THE LEGISLATIVE HISTORY OF THE 1940 ACT CONTAINS
LITTLE EXPRESSION OF CONGRESSIONAL INTENT.  THE ACT WAS PRESENTED WHILE
A CONTROVERSIAL REVENUE MEASURE WAS UNDER CONSIDERATION.  THE COMMITTEE
REPORTS ACCOMPANYING THE REVENUE BILL OF WHICH THE N.S.L.I. ACT BECAME
PART CONTAIN NO REFERENCE TO THE INSURANCE LEGISLATION.  A CONFERENCE
COMMITTEE REPORT DEVOTED LESS THAN A PAGE TO THE INSURANCE ACT.  SEE
H.R. REP. NO. 2894, S. REP. NO. 2114, H.R. REP. NO. 3002, ALL OF THE
76TH CONG., 3D SESS.

FN15  MCCULLOUGH V. SMITH, 293 U.S. 228 (1934); CF. UNITED STATES V.
CITIZENS LOAN & TRUST CO., 316 U.S. 209 (1942), BOTH CASES INVOLVING
THE 1925 AMENDMENTS TO THE WORLD WAR VETERANS' ACT.  43 STAT. 1310, 38
U.S.C. SEC. 514. 

FN16  TREASURY DEPT., BUREAU OF WAR RISK INSURANCE, DIVISION OF
MILITARY AND NAVAL INSURANCE, BULLETIN NO. 1, P. 4 (1917); CASSARELLO
V. UNITED STATES, 271 F. 486 (1919). 

FN17  24 COMP. DEC. 733 (1918).  CF. AMERICAN NATIONAL BANK & TRUST
CO. V. UNITED STATES, 77 U.S. APP. D.C. 243, 134 F.2D 674 (1943);
UNITED STATES V. LEE, 101 F.2D 472 (1939), WHICH INTERPRETED 38 U.S.C.
SEC. 516, PROVIDING FOR REINSTATEMENT OF LAPSED WORLD WAR I POLICIES,
AS FORBIDDING THE PAYMENT OF INSTALLMENTS TO THE ESTATES OF DECEASED
BENEFICIARIES.  THESE HOLDINGS TURNED ON THE SECTION'S ENUMERATION OF A
RESTRICTED CLASS OF PERMISSIBLE TAKERS; ESTATES OF DECEASED PERSONS
WERE HELD NOT TO FALL WITHIN THAT CLASS.  THE PERTINENT TERMS OF THAT
ENACTMENT ARE ALMOST IDENTICAL WITH PORTIONS OF SECS. 602(G) AND (H) OF
THE NATIONAL SERVICE LIFE INSURANCE ACT WE MUST CONSTRUE TODAY. 

FN18  SINCE THIS POLICY MATURED IN 1945, WE ARE NOT HERE CONCERNED
WITH WHATEVER EFFECTS THE 1946 AMENDMENTS TO THE NATIONAL SERVICE LIFE
INSURANCE ACT MIGHT HAVE ON THIS OR SIMILAR CASES. 

FN19  SEE 24 COMP. DEC. 733 (1918); BULLETIN, NOTE 16, SUPRA;
COMMUNICATION TO THE SOLICITOR GENERAL OF THE UNITED STATES FROM THE
SOLICITOR, VETERANS' ADMINISTRATION, DATED MARCH 12, 1952, REPRINTED AS
APPENDIX B, BRIEF FOR THE UNITED STATES. 

FN20  SECS. 602(G) AND (H)(3)(C), 54 STAT. 1010.  THE INSURED,
HOWEVER, WAS PERMITTED TO DESIGNATE PERSONS IN LOCO PARENTIS AS
BENEFICIARIES. 

FN21  S. REP. NO. 1430, 77TH CONG., 2D SESS., P. 2; H.R. REP. NO.
2312, 77TH CONG., 2D SESS., P. 4.  CF. S. REP. NO. 91, 82D CONG., 1ST
SESS., P. 12; H.R. REP. NO. 6, 82D CONG., 1ST SESS., P. 14. 

FN22  SECS. 7 TO 9, 56 STAT. 659; 38 U.S.C. SECS. 801(F), (G), AND
(H)(3)(C).  CF. SEC. 3 OF THE SERVICEMEN'S INDEMNITY ACT OF 1951, 38
U.S.C. (SUPP. V) SEC. 852. 

FN23  191 F.2D, AT 593. 

FN24  38 U.S.C. SEC. 802(H)(1) AND (2); 38 CFR, 1944 SUPP., SEC.
10.3475 ET SEQ., APPLICABLE TO THIS POLICY WHICH MATURED IN 1945. 

MR. JUSTICE BURTON, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

I AGREE WITH THE OPINION AND THE JUDGMENT OF THE COURT INSOFAR AS IT
HOLDS THAT NO INSTALLMENTS MAY BE PAID TO THE LEGAL REPRESENTATIVES OF
THE ESTATES OF THE RESPECTIVE DECEASED BENEFICIARIES.  HOWEVER, I FEEL
OBLIGED TO CONCLUDE THAT, WITHIN THE MEANING OF THE ACT, ONLY THE
NATURAL FATHER AND THE FOSTER MOTHER OF THE INSURED LAST BORE TO HIM,
AT THE TIME OF HIS DEATH, THE RELATIONSHIP OF PARENTS.  THAT LAST
RELATIONSHIP WAS THEN TO THE EXCLUSION OF EVERYONE, EVEN TO THE
EXCLUSION OF HIS NATURAL MOTHER.  CONSEQUENTLY, UPON THE DEATH OF THOSE
TWO PERSONS WHO LAST BORE THE RELATIONSHIP OF PARENT TO THE INSURED,
THERE REMAINED NO PERSON ENTITLED UNDER THE TERMS OF THE ACT TO RECEIVE
ANY OF THE PROCEEDS AS A CONTINGENT BENEFICIARY.  ACCORDINGLY, THE
PROCEEDS SHOULD BE WITHHELD FOR THE BENEFIT OF THE NATIONAL SERVICE
LIFE INSURANCE FUND. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

PERHAPS A HALFHEARTED DISSENT, LIKE AN EXTEMPORANEOUS SPEECH, IS ONLY
WORTH THE PAPER IT IS WRITTEN UPON.  WE DO NO MORE THAN POINT OUT THAT
WE WOULD PREFER A MORE BENIGN CONSTRUCTION OF THESE COMPLEX STATUTES
WHICH WOULD BE EQUALLY REASONABLE. 

THE PROBLEM IS OF THAT RECURRING SORT WELL DESCRIBED BY JUDGE LEARNED
HAND AS FOLLOWS: 

"THE ISSUE INVOLVES THE BAFFLING QUESTION WHICH COMES UP SO OFTEN IN
THE INTERPRETATION OF ALL KINDS OF WRITINGS; HOW FAR IS IT PROPER TO
READ THE WORDS OUT OF THEIR LITERAL MEANING IN ORDER TO REALIZE THEIR
OVERRIDING PURPOSE?  IT IS IDLE TO ADD TO THE ACRES OF PAPER AND
STREAMS OF INK THAT HAVE BEEN DEVOTED TO THE DISCUSSION.  WHEN WE ASK
WHAT CONGRESS 'INTENDED,' USUALLY THERE CAN BE NO ANSWER, IF WHAT WE
MEAN IS WHAT ANY PERSON OR GROUP OF PERSONS ACTUALLY HAD IN MIND. 
FLINCH AS WE MAY, WHAT WE DO, AND MUST DO, IS TO PROJECT OURSELVES, AS
BEST WE CAN, INTO THE POSITION OF THOSE WHO UTTERED THE WORDS, AND TO
IMPUTE TO THEM HOW THEY WOULD HAVE DEALT WITH THE CONCRETE OCCASION. 
HE WHO SUPPOSES THAT HE CAN BE CERTAIN OF THE RESULT, IS THE LEAST
FITTED FOR THE ATTEMPT."  UNITED STATES V. KLINGER, 199 F.2D 645, 648. 

THE LITERAL LANGUAGE OF CONGRESS IN 38 U.S.C. SEC. 802(I) WE WOULD
READ WITH EMPHASIS AS FOLLOWS: "THE RIGHT OF ANY BENEFICIARY TO PAYMENT
OF ANY INSTALLMENTS SHALL BE CONDITIONED UPON HIS OR HER BEING ALIVE TO
RECEIVE SUCH PAYMENTS."  THIS, ON OUR READING, SAYS THAT A
BENEFICIARY'S CLAIM TO AN INSTALLMENT IS MATURED AND HIS RIGHT IS
PERFECTED WHEN THE INSTALLMENT BECOMES DUE AND HE IS ALIVE TO RECEIVE
IT WHETHER OR NOT HE THEN ACTUALLY REDUCES IT TO POSSESSION.  UNDER THE
COURT'S CONSTRUCTION, NO "RIGHT" TO AN INSTALLMENT COMES INTO EXISTENCE
UNTIL THE CLAIMANT HAS ACTUALLY RECEIVED PAYMENT.  ON THAT EVENT, WE
WOULD THINK HE WOULD CEASE TO HAVE THE "RIGHT."  IT IS NOT CLEAR WHAT
THE COURT WOULD DO ABOUT THE CASE WHERE A CHECK WAS SENT TO PAY THE
CLAIM AND THE CLAIMANT DIED WHILE IT WAS IN THE MAILS OR AFTER HE HAD
RECEIVED THE CHECK BUT BEFORE IT WAS ACTUALLY PRESENTED FOR PAYMENT. 
BUT TO US THIS LANGUAGE MEANS THAT INSTALLMENTS ACCRUE TO A BENEFICIARY
WHEN THEY FALL DUE DURING HIS LIFETIME AND THEREUPON BECOME HIS OF
RIGHT. 

WE DO NOT READ SEC. 802(J) AS TAKING AWAY WHAT SEC. 802(I) GRANTS. 
IT MAY BE READ WITH THIS EMPHASIS:  "NO INSTALLMENTS OF SUCH INSURANCE
SHALL BE PAID TO THE HEIRS OR LEGAL REPRESENTATIVES AS SUCH OF THE
INSURED OR OF ANY BENEFICIARY  ...  ."  JUST WHAT "AS SUCH" ADDS OR
SUBTRACTS MAY BE DEBATED, BUT TO US THE PHRASE, IF IT IS TO HAVE ANY
SIGNIFICANCE IN THIS CONTEXT, MEANS THAT PAYMENTS CANNOT ACCRUE TO AN
ADMINISTRATOR OR EXECUTOR, BECAUSE A PERSONAL REPRESENTATIVE AS SUCH
CANNOT BECOME A BENEFICIARY.  BUT IT DOES NOT MEAN THAT THE PERSONAL
REPRESENTATIVE CANNOT COLLECT INSTALLMENTS WHICH HAD BECOME THE "RIGHT"
OF DECEDENT DURING HIS LIFETIME. 

THIS CONSTRUCTION WOULD AVOID WHAT THE COURT ADMITS IS A HARSH AND
CAPRICIOUS RESULT.  IT SEEMS STRANGE, IN DEALING WITH A BEREAVED
BENEFICIARY, IF OUR GOVERNMENT MAKES A PROMISE TO THE EAR TO BE BROKEN
TO THE HOPE.  UNDER THE COURT'S VIEW, THOUGH THE BENEFICIARY IS ALIVE
TO RECEIVE THE PAYMENT AND THEREFORE HAS THE STATUTORY "RIGHT" TO IT,
ANY EVENT THAT DELAYS ITS ACTUAL PAYMENT MAY CANCEL HIS "RIGHT."  BY AN
ADVERSE CLAIM, HOWEVER FICTITIOUS, OR A LITIGATION, HOWEVER FRIVOLOUS,
A JUNIOR BENEFICIARY MAY DELAY PAYMENTS AND GAMBLE ON WINNING THEM FOR
HIMSELF THROUGH DEATH OF THE SENIOR BENEFICIARY.  SOME PERIOD OF
WAITING IS INEVITABLE IN THE SETTLEMENT OF CLAIMS IN ANY EVENT, AND WE
ALL KNOW THE TENDENCY OF CLAIM PAPERS TO SHUFFLE BACK AND FORTH BETWEEN
WASHINGTON DESKS WHILE TIME, WHICH MEANS LITTLE TO THE ADMINISTRATIVE
STAFF, MEANS EVERYTHING TO THE CLAIMANT.  WE WOULD NOT PUT UPON
BENEFICIARIES ALL RISKS CAUSED BY DELAY AND THUS MAKE THEIR STATUTORY
RIGHTS AS CONTINGENT AS LOTTERY TICKETS.  BENEFICIARIES OF THIS CLASS
ARE OFTEN DEPENDENTS, LEFT IN URGENT NEED BY DEATH OF THE INSURED. 
WHEN RED TAPE OR LITIGIOUSNESS DELAYS THE PROMISED INCOME, SHOULD NOT
THE BENEFICIARY WHILE WAITING TO HEAR FROM WASHINGTON HAVE A FIRM RIGHT
TO ACCRUED INSTALLMENTS ON WHICH HE OR HIS ESTATE COULD DEPEND?  THE
REASONING THAT WOULD DENY THE ASSET TO THE ESTATE MAY ALSO DENY THE
NEEDY BENEFICIARY CREDIT. 

WE DO NOT THINK THAT THE COURT'S ADMITTEDLY HARSH RESULT IS THE
FAIREST PERMISSIBLE INTERPRETATION OF THIS STATUTE.  WE WOULD ALLOW THE
ESTATE OF A BENEFICIARY TO RECOVER PAYMENTS THAT FALL DUE WHILE THE
BENEFICIARY IS ALIVE TO RECEIVE THEM.  ON THIS POINT ALONE DO WE
DISSENT. 
..END :












BAUMET V. UNITED STATES 344 U.S. 82 


NO. 39.  ARGUED OCTOBER 15, 1952.  - DECIDED NOVEMBER 17, 1952.  - 191
F.2D 194, REVERSED. 


AT THE TIME OF THE DEATH IN 1942 OF A SERVICEMAN INSURED UNDER THE
NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, HIS POLICY DESIGNATED AN
UNCLE AS SOLE BENEFICIARY.  THE INSURED'S NATURAL FATHER INSTITUTED AN
ACTION TO CLAIM THE PROCEEDS.  THE UNCLE DIED WHILE THAT ACTION WAS
PENDING.  THE DISTRICT COURT FOUND THAT THE UNCLE AND THE UNCLE'S WIFE
HAD STOOD IN LOCO PARENTIS TO THE INSURED FROM 1938 UNTIL THE DEATH OF
THE INSURED; AND THAT, LONG BEFORE THE INSURED'S DEATH, HIS NATURAL
FATHER HAD ABANDONED HIM.  HELD: 

1.  AN AWARD TO THE DECEASED UNCLE'S PERSONAL REPRESENTATIVE CANNOT
BE SUSTAINED.  UNITED STATES V. HENNING, ANTE, P. 66.  PP. 83-84. 

2.  SINCE THE NATURAL FATHER HAD ABANDONED HIS SON AND THUS CEASED TO
BE A PARENT IN TRUTH AND FACT, HE IS NOT A PARENT "WHO LAST BORE THAT
RELATIONSHIP" WITHIN THE MEANING OF SEC. 602(H)(3)(C) AND THEREFORE MAY
NOT CLAIM THE PROCEEDS.  PP. 84-85. 

3.  THE INSURED'S FOSTER MOTHER (THE UNCLE'S WIFE), AS THE SOLE
SURVIVOR OF THOSE WHO "LAST BORE" THE PARENTAL RELATIONSHIP TO THE
INSURED, WAS ENTITLED IN HER OWN RIGHT TO ALL THE ACCRUED POLICY
PROCEEDS.  P. 85. 

BAUMET ET AL. V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN AN ACTION TO DETERMINE THE BENEFICIARY UNDER A POLICY OF NATIONAL
SERVICE LIFE INSURANCE, THE DISTRICT COURT MADE AN AWARD OF PART OF THE
PROCEEDS TO THE PERSONAL REPRESENTATIVE OF A DECEASED BENEFICIARY.  THE
COURT OF APPEALS AFFIRMED.  191 F.2D 194.  THIS COURT GRANTED
CERTIORARI.  343 U.S. 925.  REVERSED, P. 85. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

BASED ON CONFLICTING CLAIMS TO THE PROCEEDS OF A NATIONAL SERVICE
LIFE INSURANCE POLICY, THIS IS A COMPANION CASE TO UNITED STATES V.
HENNING, ANTE, P. 66, DECIDED TODAY. 

THE CONTROVERSY IS BOTTOMED ON THE FOLLOWING FACTS:  AT THE TIME OF
THE INSURED SERVICEMAN'S DEATH IN 1942, HIS POLICY DESIGNATED JOHN J.
PETERS, HIS UNCLE, AS SOLE BENEFICIARY.  CHALLENGING THE UNCLE'S
STANDING AS A PERMISSIBLE BENEFICIARY UNDER THE STATUTE, WILLIAM
BAUMET, THE INSURED'S NATURAL FATHER, INSTITUTED AN ACTION TO CLAIM THE
PROCEEDS.  (FN1)  BEFORE THAT ACTION CAME TO TRIAL, JOHN J. PETERS
DIED.  (FN2)  AFTER A SUBSEQUENT TRIAL OF THE CAUSE, THE DISTRICT COURT
FOUND THAT JOHN J. PETERS AND HIS WIFE JULIE PETERS HAD STOOD IN LOCO
PARENTIS TO THE INSURED FROM 1938 UNTIL HIS DEATH, AND THAT THE NATURAL
FATHER'S CONTEMPORANEOUS CONDUCT HAD AMOUNTED TO AN ABANDONMENT OF HIS
SON.  (FN3)  CONCLUDING THAT JOHN J. PETERS, AS A PERSON IN LOCO
PARENTIS, WAS A VALIDLY DESIGNATED BENEFICIARY UNDER THE ACT, (FN4) IT
DISMISSED BAUMET'S COMPLAINT.  ACCORDINGLY, THE COURT AWARDED THE
INSTALLMENTS WHICH HAD MATURED DURING JOHN J. PETERS' LIFETIME TO JULIE
PETERS AS HIS PERSONAL REPRESENTATIVE, AND THE INSTALLMENTS THEREAFTER
MATURING TO JULIE INDIVIDUALLY AS A PERSON IN LOCO PARENTIS WHO "LAST
BORE" THE PARENTAL RELATIONSHIP TO THE INSURED.  (FN5)  THE COURT OF
APPEALS AFFIRMED.  (FN6)  IT AGREED THAT "AFTER 1938 HIS FATHER NEVER
SAW HIM, MANIFESTED NO INTEREST IN HIS CAREER AND CONTRIBUTED NOTHING
TOWARD HIS SUPPORT"; IN FACT, THERE WAS "A PERMANENT ESTRANGEMENT
BETWEEN THEM."  (FN7)  AND IT APPROVED THE DISTRICT COURT'S ALLOCATION
OF THE POLICY'S PROCEEDS.  IN SO HOLDING, THE COURT OF APPEALS ASSUMED
THAT ESTATES OF DECEASED BENEFICIARIES WERE PROPER TAKERS, AND THAT THE
FOSTER PARENTS HAD LONG SUPPLANTED THE NATURAL FATHER IN THE PARENTAL
RELATIONSHIP TO THE INSURED.  IN ANY EVENT, THE COURT THOUGHT, "THE
INSURED CAN HAVE BUT ONE MATERNAL PARENT AND ONE PATERNAL PARENT." 
(FN8)  WE GRANTED CERTIORARI, 343 U.S. 925. 

FOR THE REASONS DETAILED IN UNITED STATES V. HENNING, SUPRA, WE HOLD
THAT ESTATES OF DECEASED BENEFICIARIES MAY NOT TAKE PROCEEDS UNDER THE
ACT.  THE AWARD TO JOHN J. PETERS' PERSONAL REPRESENTATIVE MUST
THEREFORE FALL.  IN REGARD TO THE NATURAL FATHER'S CLAIM, THE DISTRICT
COURT'S FINDINGS SHARPLY REVEAL THAT WILLIAM BAUMET LONG BEFORE HIS
SON'S DEATH HAD "ABANDONED HIS SON" AND CEASED TO BE A PARENT IN TRUTH
AND FACT.  HE MAY NOT NOW RETRIEVE THE DISCARDED PATERNAL ROBES TO LAY
CLAIM TO THE POLICY PROCEEDS; TO RULE OTHERWISE WOULD FOIL THE PLAIN
INTENT OF THE 1942 AMENDMENTS.  SINCE THE FOSTER PARENTS, NOT HE, "LAST
BORE" THE PARENTAL RELATIONSHIP, HE CANNOT QUALIFY AS A TAKER BY
DEVOLUTION UNDER SEC. 602(H)(3)(C) OF THE ACT.  FOR THAT REASON WE HOLD
THAT THE FOSTER MOTHER, JULIE PETERS, AS THE SOLE SURVIVOR OF THOSE WHO
"LAST BORE" THE PARENTAL RELATIONSHIP, IN HER OWN RIGHT MUST TAKE ALL
ACCRUED POLICY PROCEEDS.  REVERSED. 

FN1  THE INSURED'S NATURAL MOTHER DIED IN 1936, AND NO CLAIM IS
RAISED ON HER BEHALF.  HOWEVER, THE INFANT HALF-BROTHERS AND HALF
SISTERS OF THE INSURED BY THEIR GUARDIAN AD LITEM FILED A CLAIM
ASSERTING THAT THEY FOLLOWED THEIR FATHER WILLIAM BAUMET ON THE
PRIORITY LADDER OF SEC. 602(H)(3); 38 U.S.C. SEC. 802(H)(3).  BUT THEIR
STANDING UNDER SEC. 602(H)(3)(D) IS CONDITIONED ON THE ABSENCE OF
TAKERS QUALIFYING UNDER SEC. 602(H)(3)(C).  SINCE WE FIND SUCH A TAKER,
THEIR CLAIMS NEED NOT BE CONSIDERED HERE. 

FN2  JULIE PETERS, AS JOHN'S EXECUTRIX, MOVED FOR SUBSTITUTION IN HIS
STEAD.  THE DISTRICT COURT DENIED THE MOTION, ON THE GROUND THAT JOHN
J. PETERS' RIGHTS WERE EXTINGUISHED BY HIS DEATH.  81 F. SUPP. 1012
(S.D.N.Y. 1948).  THE COURT OF APPEALS REVERSED, HOLDING THAT ACCRUED
INSTALLMENTS PASSED TO A DECEASED BENEFICIARY'S ESTATE.  177 F.2D 806
(2D CIR. 1949), CERT. DENIED, 339 U.S. 923 (1950).  A SUBSEQUENT TRIAL
FOLLOWED. 

FN3  THE DISTRICT COURT'S UNREPORTED FINDINGS AND OPINION ARE
REPRINTED AT PP. 10 TO 24 OF THE APPENDIX TO THE BRIEF FOR THE UNITED
STATES. 

FN4  SECS. 601(F), 602(G); 38 U.S.C. SECS. 801(F), 802(G). 

FN5  SEC. 602(H)(3)(C); 38 U.S.C. SEC. 802(H)(3)(C). 

FN6  BAUMET V. UNITED STATES, 191 F.2D 194 (2D CIR. 1951). 

FN7  ID., AT 195-196. 

FN8  IBID. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON, FOR THE REASONS
STATED IN THE DISSENTING OPINION OF MR. JUSTICE JACKSON IN UNITED
STATES V. HENNING, ANTE, P. 79, DECIDED THIS DATE, DISSENT FROM THE
COURT'S REFUSAL TO PERMIT THE DECEASED BENEFICIARY'S ESTATE TO SHARE IN
THE PROCEEDS. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I THINK WILLIAM BAUMET AND JULIE PETERS SHOULD SHARE THE ACCRUED
POLICY PROCEEDS PARI PASSU.  I BELIEVE THAT THE NATURAL FATHER AS WELL
AS THE FOSTER MOTHER "LAST BORE" THE PARENTAL RELATIONSHIP TO THE
INSURED.  NO LAW, NO DICTIONARY, NO FORM OF WORDS CAN CHANGE THAT
BIOLOGICAL FACT.  THE NATURAL FATHER, AS WELL AS THE NATURAL MOTHER,
REMAINS A PARENT NO MATTER HOW ESTRANGED PARENT AND CHILD MAY BECOME. 
A STRANGER MAY BY CONDUCT BECOME A FOSTER PARENT; BUT NO CONDUCT CAN
TRANSMUTE A NATURAL PARENT INTO A STRANGER. 
..END :





SWEENEY V. WOODALL 344 U.S. 86 


NO. 100.  CERTIORARI GRANTED AND JUDGMENT REVERSED, NOV. 17, 1952.  -
194 F.2D 542, REVERSED. 


A FUGITIVE FROM AN ALABAMA PRISON WAS ARRESTED IN OHIO AND HELD THERE
FOR RETURN TO ALABAMA PURSUANT TO PROCEEDINGS INSTITUTED BY THE
GOVERNOR OF ALABAMA.  ALTHOUGH HE HAD MADE NO ATTEMPT TO RAISE SUCH A
QUESTION IN THE COURTS OF ALABAMA, HE CLAIMED IN OHIO THAT HIS
CONFINEMENT IN ALABAMA AMOUNTED, AND WOULD AMOUNT AGAIN, TO CRUEL AND
UNUSUAL PUNISHMENT CONTRARY TO THE EIGHTH AND FOURTEENTH AMENDMENTS;
AND HE APPLIED UNSUCCESSFULLY TO AN OHIO STATE COURT FOR RELEASE ON A
WRIT OF HABEAS CORPUS.  AFTER EXHAUSTING HIS REMEDIES IN THE OHIO
COURTS, HE APPLIED TO A FEDERAL DISTRICT COURT IN OHIO FOR HABEAS
CORPUS ON THE SAME GROUNDS.  ALABAMA WAS NOT A PARTY TO THAT
PROCEEDING.  HELD:  THE DISTRICT COURT SHOULD NOT ENTERTAIN THE
APPLICATION ON ITS MERITS.  PP. 87-90. 

(A)  THE SCHEME OF INTERSTATE RENDITION SET FORTH IN ART. IV, SEC. 2,
CL. 2 OF THE CONSTITUTION AND THE STATUTES THEREUNDER CONTEMPLATES THE
PROMPT RETURN OF A FUGITIVE FROM JUSTICE AS SOON AS THE STATE FROM
WHICH HE FLED DEMANDS HIM; THESE PROVISIONS DO NOT CONTEMPLATE AN
APPEARANCE BY THAT STATE IN THE ASYLUM STATE TO DEFEND AGAINST CLAIMED
ABUSES OF THE FORMER STATE'S PRISON SYSTEM.  PP. 89-90. 

(B)  THE PRISONER SHOULD TEST THE CONSTITUTIONALITY OF HIS TREATMENT
BY ALABAMA IN THE COURTS OF THAT STATE, WHERE ALL PARTIES MAY BE HEARD,
WHERE ALL PERTINENT TESTIMONY WILL BE READILY AVAILABLE AND WHERE
SUITABLE RELIEF, IF ANY IS NECESSARY, MAY BE FASHIONED.  P. 90. 

SWEENEY, SHERIFF, V. WOODALL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

THE DISTRICT COURT DISMISSED RESPONDENT'S PETITION FOR HABEAS
CORPUS.  THE COURT OF APPEALS REVERSED.  194 F.2D 542.  ON PETITION TO
THIS COURT, CERTIORARI GRANTED AND JUDGMENT REVERSED, P. 90. 

PER CURIAM. 

THE RESPONDENT IS A FUGITIVE FROM A PRISON IN ALABAMA.  THE GOVERNOR
OF THAT STATE INSTITUTED PROCEEDINGS FOR HIS RETURN, AND RESPONDENT WAS
ARRESTED IN OHIO.  PETITIONER, THE SHERIFF OF CUYAHOGA COUNTY, OHIO,
NOW HOLDS RESPONDENT FOR DELIVERY TO THE AUTHORITIES OF ALABAMA. 

IN AN ATTEMPT TO PREVENT HIS RENDITION TO ALABAMA, RESPONDENT APPLIED
TO THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY FOR A WRIT OF HABEAS
CORPUS.  HE ALLEGED THAT DURING HIS CONFINEMENT IN ALABAMA HE HAD BEEN
BRUTALLY MISTREATED, THAT HE WOULD BE SUBJECTED TO SUCH MISTREATMENT
AND WORSE IF RETURNED.  INVOKING THE EIGHTH AND FOURTEENTH AMENDMENTS,
HE ASSERTED THAT HIS PAST CONFINEMENT HAD AMOUNTED TO CRUEL AND UNUSUAL
PUNISHMENT, THAT ANY FUTURE CONFINEMENT ADMINISTERED BY ALABAMA WOULD
SIMILARLY BE IN VIOLATION OF RIGHTS SECURED TO HIM UNDER THE FEDERAL
CONSTITUTION.  RESPONDENT ASKED THAT PETITIONER'S EFFORTS TO RETURN HIM
TO THE CUSTODY OF ALABAMA BE HALTED AND THAT HE BE IMMEDIATELY
RELEASED. 

REFUSING TO HEAR THIS CLAIM ON ITS MERITS, THE COURT OF COMMON PLEAS
DENIED RESPONDENT'S APPLICATION.  THIS JUDGMENT WAS AFFIRMED BY THE
OHIO COURT OF APPEALS FOR THE EIGHTH DISTRICT.  88 OHIO APP. 202, 89
N.E.2D 493.  AN APPEAL TO THE STATE'S SUPREME COURT WAS DISMISSED.  152
OHIO ST. 368, 89 N.E.2D 494.  THIS COURT DENIED A PETITION FOR
CERTIORARI.  339 U.S. 945. 

RESPONDENT THEN APPLIED TO THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO, SEEKING HIS RELEASE UPON THE SAME GROUND
THERETOFORE URGED IN THE OHIO COURTS.  THE DISTRICT COURT DISMISSED HIS
PETITION FOR A WRIT OF HABEAS CORPUS WITHOUT HEARING EVIDENCE.  BUT THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED, WITHOUT OPINION,
REMANDING THE CAUSE TO THE DISTRICT COURT FOR A HEARING ON THE MERITS
OF THE CONSTITUTIONAL CLAIM.  194 F.2D 542.  PETITIONER HAS NOW APPLIED
TO THIS COURT FOR A WRIT OF CERTIORARI. 

RECENTLY, IN DYE V. JOHNSON, 338 U.S. 864 (1949), THIS COURT
CONSIDERED A PETITION FOR CERTIORARI IN A SIMILAR CASE.  THE COURT OF
APPEALS FOR THE THIRD CIRCUIT HAD SUSTAINED AN APPLICATION FOR HABEAS
CORPUS BY A FUGITIVE PRISONER FROM GEORGIA WHO ALLEGED, AS RESPONDENT
DOES NOW, THAT HIS CONFINEMENT IN THE DEMANDING STATE AMOUNTED TO CRUEL
AND UNUSUAL PUNISHMENT IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. 
PRESENTED WITH A PETITION FOR CERTIORARI TO REVIEW THIS DECISION, WE
REVERSED, SUMMARILY, CITING EX PARTE HAWK, 321 U.S. 114 (1944). 
SHORTLY AFTER OUR DECISION IN THE DYE CASE, THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED A DISTRICT COURT'S DISMISSAL
OF A SIMILAR PETITION FOR HABEAS CORPUS FROM STILL ANOTHER FUGITIVE,
HOLDING THAT THE FEDERAL COURTS IN THE ASYLUM SHOULD NOT ENTERTAIN SUCH
APPLICATIONS.  JOHNSON V. MATTHEWS, 86 U.S. APP. D.C. 376, 182 F.2D 677
(1950).  (FN1) 

IN THE PRESENT CASE, AS IN THE OTHERS, A FUGITIVE FROM JUSTICE HAS
ASKED THE FEDERAL COURT IN HIS ASYLUM TO PASS UPON THE
CONSTITUTIONALITY OF HIS INCARCERATION IN THE DEMANDING STATE, ALTHOUGH
THE DEMANDING STATE IS NOT A PARTY BEFORE THE FEDERAL COURT AND
ALTHOUGH HE HAS MADE NO ATTEMPT TO RAISE SUCH A QUESTION IN THE
DEMANDING STATE.  THE QUESTION IS WHETHER, UNDER THESE CIRCUMSTANCES,
THE DISTRICT COURT SHOULD ENTERTAIN THE FUGITIVE'S APPLICATION ON ITS
MERITS. 

RESPONDENT MAKES NO SHOWING THAT RELIEF IS UNAVAILABLE TO HIM IN THE
COURTS OF ALABAMA.  HAD HE NEVER ELUDED THE CUSTODY OF HIS FORMER
JAILERS HE CERTAINLY WOULD BE ENTITLED TO NO PRIVILEGE PERMITTING HIM
TO ATTACK ALABAMA'S PENAL PROCESS BY AN ACTION BROUGHT OUTSIDE THE
TERRITORIAL CONFINES OF ALABAMA IN A FORUM WHERE THERE WOULD BE NO ONE
TO APPEAR AND ANSWER FOR THAT STATE.  INDEED, AS A PRISONER OF ALABAMA,
UNDER THE PROVISIONS OF 28 U.S.C. SEC. 2254, (FN2) AND UNDER THE
DOCTRINE OF EX PARTE HAWK, SUPRA, HE WOULD HAVE BEEN REQUIRED TO
EXHAUST ALL AVAILABLE REMEDIES IN THE STATE COURTS BEFORE MAKING ANY
APPLICATION TO THE FEDERAL COURTS SITTING IN ALABAMA. 

BY RESORT TO A FORM OF "SELF HELP," RESPONDENT HAS CHANGED HIS STATUS
FROM THAT OF A PRISONER OF ALABAMA TO THAT OF A FUGITIVE FROM ALABAMA. 
BUT THIS SHOULD NOT AFFECT THE AUTHORITY OF THE ALABAMA COURTS TO
DETERMINE THE VALIDITY OF HIS IMPRISONMENT IN ALABAMA.  THE SCHEME OF
INTERSTATE RENDITION, AS SET FORTH IN BOTH THE CONSTITUTION (FN3) AND
THE STATUTES WHICH CONGRESS HAS ENACTED TO IMPLEMENT THE CONSTITUTION,
(FN4) CONTEMPLATES THE PROMPT RETURN OF A FUGITIVE FROM JUSTICE AS SOON
AS THE STATE FROM WHICH HE FLED DEMANDS HIM; THESE PROVISIONS DO NOT
CONTEMPLATE AN APPEARANCE BY ALABAMA IN RESPONDENT'S ASYLUM TO DEFEND
AGAINST THE CLAIMED ABUSES OF ITS PRISON SYSTEM.  (FN5) CONSIDERATIONS
FUNDAMENTAL TO OUR FEDERAL SYSTEM REQUIRE THAT THE PRISONER TEST THE
CLAIMED UNCONSTITUTIONALITY OF HIS TREATMENT BY ALABAMA IN THE COURTS
OF THAT STATE.  RESPONDENT SHOULD BE REQUIRED TO INITIATE HIS SUIT IN
THE COURTS OF ALABAMA, WHERE ALL PARTIES MAY BE HEARD, WHERE ALL
PERTINENT TESTIMONY WILL BE READILY AVAILABLE AND WHERE SUITABLE
RELIEF, IF ANY IS NECESSARY, MAY BE FASHIONED. 

THE DISTRICT COURT PROPERLY DISMISSED THE APPLICATION FOR HABEAS
CORPUS ON ITS FACE, AND THE COURT OF APPEALS ERRED IN HOLDING THAT THE
APPLICANT WAS ENTITLED TO A HEARING IN THE DISTRICT COURT OF OHIO ON
THE MERITS OF HIS CONSTITUTIONAL CLAIM AGAINST PRISON OFFICIALS OF
ALABAMA. 

ACCORDINGLY, THE PETITION FOR CERTIORARI IS GRANTED, AND THE JUDGMENT
OF THE COURT OF APPEALS IS REVERSED.  IT IS SO ORDERED. 

FN1  IN OTHER SIMILAR CASES, THE COURT OF APPEALS FOR THE NINTH
CIRCUIT, IN ROSS V. MIDDLEBROOKS, 188 F.2D 308 (1951), AND THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT, IN DAVIS V. O'CONNELL, 185 F.2D 513
(1950), HAVE REACHED A LIKE RESULT.  IN UNITED STATES EX REL. JACKSON
V. RUTHAZER, 181 F.2D 588 (1950), THE COURT OF APPEALS FOR THE SECOND
CIRCUIT HELD THAT A FUGITIVE FROM GEORGIA WAS NOT ENTITLED TO A HEARING
IN THE FEDERAL COURTS IN HIS ASYLUM ON THE GROUND THAT THE MERITS HAD
BEEN FULLY HEARD IN THE STATE COURTS OF THE ASYLUM AND THE FUGITIVE'S
CLAIM DISPROVED. 

FN2  "AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A
PERSON IN CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT
BE GRANTED UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE
REMEDIES AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER
AN ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER. 

"AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

FN3  U.S. CONST., ART. IV, SEC. 2, CL. 2: 

"A PERSON CHARGED IN ANY STATE WITH TREASON, FELONY, OR OTHER CRIME,
WHO SHALL FLEE FROM JUSTICE, AND BE FOUND IN ANOTHER STATE, SHALL ON
DEMAND OF THE EXECUTIVE AUTHORITY OF THE STATE FROM WHICH HE FLED, BE
DELIVERED UP, TO BE REMOVED TO THE STATE HAVING JURISDICTION OF THE
CRIME." 

FN4  1 STAT. 302, AS AMENDED, 18 U.S.C. SEC. 3281. 

FN5  CF. DREW V. THAW, 235 U.S. 432 (1914). 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I JOIN IN THE COURT'S OPINION BECAUSE I AGREE THAT DUE REGARD FOR THE
RELATION OF THE STATES, ONE TO ANOTHER, IN OUR FEDERAL SYSTEM AND FOR
THAT OF THE COURTS OF THE UNITED STATES TO THOSE OF THE STATES REQUIRES
THAT CLAIMS EVEN AS SERIOUS AS THOSE HERE URGED FIRST BE RAISED IN THE
COURTS OF THE DEMANDING STATE.  EVEN SO, IT IS APPROPRIATE TO EMPHASIZE
THAT IN THIS CASE THERE IS NO SUGGESTION IN THE APPLICATION FOR HABEAS
CORPUS THAT THE PRISONER WOULD BE WITHOUT OPPORTUNITY TO RESORT TO THE
COURTS OF ALABAMA FOR PROTECTION OF HIS CONSTITUTIONAL RIGHTS UPON HIS
RETURN TO ALABAMA.  WE CANNOT ASSUME UNLAWFUL ACTION OF THE PRISON
OFFICIALS WHICH WOULD PREVENT THE PETITIONER FROM INVOKING THE AID OF
THE LOCAL COURTS NOR READILY OPEN THE DOOR TO SUCH A CLAIM.  COMPARE
COCHRAN V. KANSAS, 316 U.S. 255.  OUR FEDERAL SYSTEM PRESUPPOSES
CONFIDENCE THAT A DEMANDING STATE WILL NOT EXPLOIT THE ACTION OF AN
ASYLUM STATE BY INDULGING IN OUTLAWED CONDUCT TO A RETURNED FUGITIVE
FROM JUSTICE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE PETITION PRESENTS FACTS WHICH, IF TRUE, MAKE THIS A SHOCKING CASE
IN THE ANNALS OF OUR JURISPRUDENCE. 

RESPONDENT, A NEGRO, WAS CONVICTED OF BURGLARY IN ALABAMA AND
SENTENCED TO HARD LABOR AT A STATE PENITENTIARY.  AFTER SIX YEARS HE
ESCAPED AND WAS APPREHENDED IN OHIO.  THEREAFTER ALABAMA UNDERTOOK TO
EXTRADITE HIM SO THAT HE COULD BE RETURNED TO ALABAMA AND SERVE THE
BALANCE OF HIS SENTENCE.  HE THEREUPON FILED THIS PETITION FOR HABEAS
CORPUS TO BE RELEASED FROM THE CUSTODY OF PETITIONER, THE OHIO SHERIFF
WHO PRESENTLY DETAINS HIM. 

HE OFFERED TO PROVE THAT THE ALABAMA JAILERS HAVE A NINE-POUND STRAP
WITH FIVE METAL PRONGS THAT THEY USE TO BEAT PRISONERS, THAT THEY USED
THIS STRAP AGAINST HIM, THAT THE BEATINGS FREQUENTLY CAUSED HIM TO LOSE
CONSCIOUSNESS AND RESULTED IN DEEP WOUNDS AND PERMANENT SCARS. 

HE OFFERED TO PROVE THAT HE WAS STRIPPED TO HIS WAIST AND FORCED TO
WORK IN THE BROILING SUN ALL DAY LONG WITHOUT A REST PERIOD. 

HE OFFERED TO PROVE THAT ON ENTRANCE TO THE PRISON HE WAS FORCED TO
SERVE AS A "GAL-BOY" OR FEMALE FOR THE HOMOSEXUALS AMONG THE
PRISONERS. 

LURID DETAILS ARE OFFERED IN SUPPORT OF THESE MAIN CHARGES.  IF ANY
OF THEM IS TRUE, RESPONDENT HAS BEEN SUBJECTED TO CRUEL AND UNUSUAL
PUNISHMENT IN THE PAST AND CAN BE EXPECTED ON HIS RETURN TO HAVE THE
SAME AWFUL TREATMENT VISITED UPON HIM. 

THE COURT ALLOWS HIM TO BE RETURNED TO ALABAMA ON THE THEORY THAT HE
CAN APPLY TO THE ALABAMA COURTS FOR RELIEF FROM THE TORTURE INFLICTED
ON HIM.  THAT ANSWER WOULD SUFFICE IN THE ORDINARY CASE.  FOR A
PRISONER CAUGHT IN THE MESH OF ALABAMA LAW NORMALLY WOULD NEED TO RELY
ON ALABAMA LAW TO EXTRICATE HIM.  BUT IF THE ALLEGATIONS OF THE
PETITION ARE TRUE, THIS NEGRO MUST SUFFER TORTURE AND MUTILATION OR
RISK DEATH ITSELF TO GET RELIEF IN ALABAMA.  IT IS CONTENDED THAT THERE
IS NO SHOWING THAT THE DOORS OF THE ALABAMA COURTS ARE CLOSED TO
PETITIONER OR THAT HE WOULD HAVE NO OPPORTUNITY TO GET RELIEF.  IT IS
SAID THAT WE SHOULD NOT ASSUME THAT UNLAWFUL ACTION OF PRISON OFFICIALS
WOULD PREVENT PETITIONER FROM OBTAINING RELIEF IN THE ALABAMA COURTS. 
BUT WE DEAL HERE NOT WITH AN ACADEMIC PROBLEM BUT WITH ALLEGATIONS
WHICH, IF PROVED, SHOW THAT PETITIONER HAS IN THE PAST BEEN BEATEN BY
GUARDS TO THE POINT OF DEATH AND WILL, IF RETURNED, BE SUBJECTED TO THE
SAME TREATMENT.  PERHAPS THOSE ALLEGATIONS WILL PROVE GROUNDLESS.  BUT
IF THEY ARE SUPPORTED IN EVIDENCE, THEY MAKE THE RETURN OF THIS
PRISONER A RETURN TO CRUEL TORTURE. 

I AM CONFIDENT THAT ENLIGHTENED ALABAMA JUDGES WOULD MAKE SHORT
SHRIFT OF SADISTIC PRISON GUARDS.  BUT I REBEL AT THE THOUGHT THAT ANY
HUMAN BEING, NEGRO OR WHITE, SHOULD BE FORCED TO RUN A GAMUT OF BLOOD
AND TERROR IN ORDER TO GET HIS CONSTITUTIONAL RIGHTS.  THAT IS TOO
GREAT A PRICE TO PAY FOR THE LEGAL PRINCIPLE THAT BEFORE A STATE
PRISONER CAN GET FEDERAL RELIEF HE MUST EXHAUST HIS STATE REMEDIES. 
THE ENLIGHTENED VIEW IS INDEED THE OTHER WAY.  SEE JOHNSON V. DYE, 175
F.2D 250 (WHICH UNHAPPILY THE COURT REVERSED, 338 U.S. 864); JOHNSON V.
MATTHEWS, 86 U.S. APP. D.C. 376, 383-386, 182 F.2D 677, 684-687;
COMMONWEALTH V. SUPERINTENDENT OF COUNTY PRISON, 152 PA. SUPER.  167,
31 A.2D 576. 

CERTAINLY THERE CAN BE NO SOLID OBJECTION TO THE USE OF HABEAS CORPUS
TO TEST THE LEGALITY OF THE TREATMENT OF A PRISONER WHO HAS BEEN
LAWFULLY CONVICTED.  IN COCHRAN V. KANSAS, 316 U.S. 255, 258, HABEAS
CORPUS WAS USED TO CHALLENGE THE LEGALITY OF THE PRACTICE OF PRISON
OFFICIALS IN DENYING A CONVICT THE OPPORTUNITY OF PRESENTING APPEAL
PAPERS TO A HIGHER COURT.  AND SEE IN RE BONNER, 151 U.S. 242.  SUCH AN
ACT OF DISCRIMINATION AGAINST A PRISONER WAS A VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THE INFLICTION OF
"CRUEL AND UNUSUAL PUNISHMENTS" AGAINST THE COMMAND OF THE EIGHTH
AMENDMENT IS A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT WHETHER THAT CLAUSE BE CONSTRUED AS INCORPORATING THE ENTIRE
BILL OF RIGHTS OR ONLY SOME OF ITS GUARANTIES.  SEE ADAMSON V.
CALIFORNIA, 332 U.S. 46.  EVEN UNDER THE LATTER AND MORE RESTRICTED
VIEW, THE PUNISHMENTS INFLICTED HERE ARE SO SHOCKING AS TO VIOLATE THE
STANDARDS OF DECENCY IMPLICIT IN OUR SYSTEM OF JURISPRUDENCE.  CF.
FRANCIS V. RESWEBER, 329 U.S. 459. 

THE COURT OF APPEALS SHOULD BE SUSTAINED IN ITS ACTION IN GIVING
RESPONDENT AN OPPORTUNITY TO PROVE HIS CHARGES.  IF THEY ARE
ESTABLISHED, RESPONDENT SHOULD BE DISCHARGED FROM CUSTODY AND SAVED THE
ORDEAL OF ENDURING TORTURE AND RISKING DEATH IN ORDER TO PROTECT HIS
CONSTITUTIONAL RIGHTS.*    *THE REQUIREMENTS OF 28 U.S.C. SEC. 2241(C)
REGULATING THE USE OF HABEAS CORPUS ARE MET SINCE THE CHARGES, IF
PROVED, WOULD RESULT IN A RETURN OF RESPONDENT TO ALABAMA TO A "CUSTODY
IN VIOLATION OF THE CONSTITUTION" OF THE UNITED STATES. 
..END :




















ARROWSMITH V. COMMISSIONER OF INTERNAL REVENUE 344 U.S. 6 


NO. 51.  ARGUED OCTOBER 24, 1952.  - DECIDED NOVEMBER 10, 1952.  - 193
F.2D 734, AFFIRMED. 


IN 1937 TWO TAXPAYERS DECIDED TO LIQUIDATE AND DIVIDE THE PROCEEDS OF
A CORPORATION IN WHICH EACH OWNED 50% OF THE STOCK.  PARTIAL
DISTRIBUTIONS WERE MADE IN 1937, 1938, AND 1939 AND A FINAL ONE IN
1940; AND THE PROFITS THEREON WERE REPORTED BY THE TAXPAYERS IN THEIR
INCOME TAX RETURNS AS "CAPITAL GAINS."  IN 1944 A JUDGMENT WAS RENDERED
AGAINST THE CORPORATION AND AGAINST ONE OF THE TAXPAYERS INDIVIDUALLY. 
EACH OF THE TWO TAXPAYERS PAID HALF OF HIS JUDGMENT AND DEDUCTED 100%
OF THE AMOUNT SO PAID AS AN ORDINARY BUSINESS LOSS IN HIS INCOME TAX
RETURN FOR 1944.  HELD:  UNDER SECS. 23(G) AND 115(C) OF THE INTERNAL
REVENUE CODE, THESE LOSSES SHOULD HAVE BEEN TREATED AS "CAPITAL
LOSSES," SINCE THEY WERE PAID BECAUSE OF LIABILITY IMPOSED ON THE
TAXPAYERS AS TRANSFEREES OF LIQUIDATION DISTRIBUTION ASSETS.  PP. 7-9. 

(A)  A DIFFERENT RESULT IS NOT REQUIRED BECAUSE OF THE PRINCIPLE THAT
EACH TAXABLE YEAR IS A SEPARATE UNIT FOR TAX ACCOUNTING PURPOSES.  PP.
8-9. 

(B)  NOR IS A DIFFERENT RESULT REQUIRED AS TO ONE OF THE TAXPAYERS
BECAUSE THE JUDGMENT WAS AGAINST HIM PERSONALLY AS WELL AS AGAINST THE
CORPORATION.  P. 9. 

ARROWSMITH ET AL., EXECUTORS, ET AL. V. COMMISSIONER OF INTERNAL
REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT A JUDGMENT LOSS
PAID BY PETITIONERS AS TRANSFEREES OF LIQUIDATION ASSETS OF A
CORPORATION WERE "CAPITAL LOSSES" UNDER THE INTERNAL REVENUE CODE.  THE
TAX COURT HELD THAT THEY WERE ORDINARY BUSINESS LOSSES.  15 T.C. 876. 
THE COURT OF APPEALS REVERSED.  193 F.2D 734.  THIS COURT GRANTED
CERTIORARI.  343 U.S. 976.  AFFIRMED, P. 9. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS AN INCOME TAX CONTROVERSY GROWING OUT OF THE FOLLOWING FACTS
AS SHOWN BY FINDINGS OF THE TAX COURT.  IN 1937 TWO TAXPAYERS,
PETITIONERS HERE, DECIDED TO LIQUIDATE AND DIVIDE THE PROCEEDS OF A
CORPORATION IN WHICH THEY HAD EQUAL STOCK OWNERSHIP.*  PARTIAL
DISTRIBUTIONS MADE IN 1937, 1938, AND 1939 WERE FOLLOWED BY A FINAL ONE
IN 1940.  PETITIONERS REPORTED THE PROFITS OBTAINED FROM THIS
TRANSACTION, CLASSIFYING THEM AS CAPITAL GAINS.  THEY THEREBY PAID LESS
INCOME TAX THAN WOULD HAVE BEEN REQUIRED HAD THE INCOME BEEN ATTRIBUTED
TO ORDINARY BUSINESS TRANSACTIONS FOR PROFIT.  ABOUT THE PROPRIETY OF
THESE 1937-1940 RETURNS, THERE IS NO DISPUTE.  BUT IN 1944 A JUDGMENT
WAS RENDERED AGAINST THE OLD CORPORATION AND AGAINST FREDERICK R.
BAUER, INDIVIDUALLY.  THE TWO TAXPAYERS WERE REQUIRED TO AND DID PAY
THE JUDGMENT FOR THE CORPORATION, OF WHOSE ASSETS THEY WERE
TRANSFEREES.  SEE PHILLIPS-JONES CORP. V. PARMLEY, 302 U.S. 233, 235
236.  CF. I.R.C.  SEC. 311(A).  CLASSIFYING THE LOSS AS AN ORDINARY
BUSINESS ONE, EACH TOOK A TAX DEDUCTION FOR 100% OF THE AMOUNT PAID. 
TREATMENT OF THE LOSS AS A CAPITAL ONE WOULD HAVE ALLOWED DEDUCTION OF
A MUCH SMALLER AMOUNT.  SEE I.R.C., SEC. 117(B), (D)(2) AND (E).  THE
COMMISSIONER VIEWED THE 1944 PAYMENT AS PART OF THE ORIGINAL
LIQUIDATION TRANSACTION REQUIRING CLASSIFICATION AS A CAPITAL LOSS,
JUST AS THE TAXPAYERS HAD TREATED THE ORIGINAL DIVIDENDS AS CAPITAL
GAINS.  DISAGREEING WITH THE COMMISSIONER THE TAX COURT CLASSIFIED THE
1944 PAYMENT AS AN ORDINARY BUSINESS LOSS.  15 T.C. 876.  DISAGREEING
WITH THE TAX COURT THE COURT OF APPEALS REVERSED, TREATING THE LOSS AS
"CAPITAL."  193 F.2D 734.  THIS LATTER HOLDING CONFLICTS WITH THE THIRD
CIRCUIT'S HOLDING IN COMMISSIONER V. SWITLIK, 184 F.2D 299.  BECAUSE OF
THIS CONFLICT, WE GRANTED CERTIORARI.  343 U.S. 976. 

*AT DISSOLUTION THE CORPORATE STOCK WAS OWNED BY FREDERICK P. BAUER
AND THE EXECUTOR OF DAVENPORT POGUE'S ESTATE.  THE PARTIES HERE NOW ARE
POGUE'S WIDOW, BAUER'S WIDOW, AND THE EXECUTOR OF BAUER'S ESTATE. 

I.R.C., SEC. 23(G) TREATS LOSSES FROM SALES OR EXCHANGES OF CAPITAL
ASSETS AS "CAPITAL LOSSES" AND I.R.C., SEC. 115(C) REQUIRES THAT
LIQUIDATION DISTRIBUTIONS BE TREATED AS EXCHANGES.  THE LOSSES HERE
FALL SQUARELY WITHIN THE DEFINITION OF "CAPITAL LOSSES" CONTAINED IN
THESE SECTIONS.  TAXPAYERS WERE REQUIRED TO PAY THE JUDGMENT BECAUSE OF
LIABILITY IMPOSED ON THEM AS TRANSFEREES OF LIQUIDATION DISTRIBUTION
ASSETS.  AND IT IS PLAIN THAT THEIR LIABILITY AS TRANSFEREES WAS NOT
BASED ON ANY ORDINARY BUSINESS TRANSACTION OF THEIRS APART FROM THE
LIQUIDATION PROCEEDINGS.  IT IS NOT EVEN DENIED THAT HAD THIS JUDGMENT
BEEN PAID AFTER LIQUIDATION, BUT DURING THE YEAR 1940, THE LOSSES WOULD
HAVE BEEN PROPERLY TREATED AS CAPITAL ONES.  FOR PAYMENT DURING 1940
WOULD SIMPLY HAVE REDUCED THE AMOUNT OF CAPITAL GAINS TAXPAYERS
RECEIVED DURING THAT YEAR. 

IT IS CONTENDED, HOWEVER, THAT THIS PAYMENT WHICH WOULD HAVE BEEN A
CAPITAL TRANSACTION IN 1940 WAS TRANSFORMED INTO AN ORDINARY BUSINESS
TRANSACTION IN 1944 BECAUSE OF THE WELL-ESTABLISHED PRINCIPLE THAT EACH
TAXABLE YEAR IS A SEPARATE UNIT FOR TAX ACCOUNTING PURPOSES.  UNITED
STATES V. LEWIS, 340 U.S. 590; NORTH AMERICAN OIL V. BURNET, 286 U.S.
417.  BUT THIS PRINCIPLE IS NOT BREACHED BY CONSIDERING ALL THE 1937
1944 LIQUIDATION TRANSACTION EVENTS IN ORDER PROPERLY TO CLASSIFY THE
NATURE OF THE 1944 LOSS FOR TAX PURPOSES.  SUCH AN EXAMINATION IS NOT
AN ATTEMPT TO REOPEN AND READJUST THE 1937 TO 1940 TAX RETURNS, AN
ACTION THAT WOULD BE INCONSISTENT WITH THE ANNUAL TAX ACCOUNTING
PRINCIPLE. 

THE PETITIONER BAUER'S EXECUTOR PRESENTS AN ARGUMENT FOR REVERSAL
WHICH APPLIES TO BAUER ALONE.  HE WAS LIABLE NOT ONLY BY REASON OF
BEING A TRANSFEREE OF THE CORPORATE ASSETS.  HE WAS ALSO HELD LIABLE
JOINTLY WITH THE ORIGINAL CORPORATION, ON FINDINGS THAT HE HAD SECRETLY
PROFITED BECAUSE OF A BREACH OF HIS FIDUCIARY RELATIONSHIP TO THE
JUDGMENT CREDITOR.  TROUNSTINE V. BAUER, POGUE & CO., 44 F. SUPP. 767,
773; 144 F.2D 379, 382.  THE JUDGMENT WAS AGAINST BOTH BAUER AND THE
CORPORATION.  FOR THIS REASON IT IS CONTENDED THAT THE NATURE OF
BAUER'S TAX DEDUCTION SHOULD BE CONSIDERED ON THE BASIS OF HIS
LIABILITY AS AN INDIVIDUAL WHO SUSTAINED A LOSS IN AN ORDINARY BUSINESS
TRANSACTION FOR PROFIT.  WE AGREE WITH THE COURT OF APPEALS THAT THIS
CONTENTION SHOULD NOT BE SUSTAINED.  WHILE THERE WAS A LIABILITY
AGAINST HIM IN BOTH CAPACITIES, THE INDIVIDUAL JUDGMENT AGAINST HIM WAS
FOR THE WHOLE AMOUNT.  HIS PAYMENT OF ONLY HALF THE JUDGMENT INDICATES
THAT BOTH HE AND THE OTHER TRANSFEREE WERE PAYING IN THEIR CAPACITIES
AS SUCH.  WE SEE NO REASON FOR GIVING BAUER A PREFERRED TAX POSITION. 
AFFIRMED. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH MR. JUSTICE JACKSON THAT THESE LOSSES SHOULD BE TREATED
AS ORDINARY, NOT CAPITAL LOSSES.  THERE WERE NO CAPITAL TRANSACTIONS IN
THE YEAR IN WHICH THE LOSSES WERE SUFFERED.  THOSE TRANSACTIONS
OCCURRED AND WERE ACCOUNTED FOR IN EARLIER YEARS IN ACCORD WITH THE
ESTABLISHED PRINCIPLE THAT EACH YEAR IS A SEPARATE UNIT FOR TAX
ACCOUNTING PURPOSES.  SEE UNITED STATES V. LEWIS, 340 U.S. 590.  I HAVE
NOT FELT, AS MY DISSENT IN THE LEWIS CASE INDICATES, THAT THE LAW MADE
THAT AN INEXORABLE PRINCIPLE.  BUT IF IT IS THE LAW, WE SHOULD REQUIRE
OBSERVANCE OF IT - NOT MERELY BY TAXPAYERS BUT BY THE GOVERNMENT AS
WELL.  WE SHOULD FORCE EACH YEAR TO STAND ON ITS OWN FOOTING, WHOEVER
MAY GAIN OR LOSE FROM IT IN A PARTICULAR CASE.  WE IMPEACH THAT
PRINCIPLE WHEN WE TREAT THIS YEAR'S LOSSES AS IF THEY DIMINISHED LAST
YEAR'S GAINS. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

THIS PROBLEM ARISES ONLY BECAUSE THE JUDGMENT WAS RENDERED IN A
TAXABLE YEAR SUBSEQUENT TO THE LIQUIDATION. 

HAD THE LIABILITY OF THE TRANSFEROR-CORPORATION BEEN REDUCED TO
JUDGMENT DURING THE TAXABLE YEAR IN WHICH LIQUIDATION OCCURRED, OR
PRIOR THERETO, THIS PROBLEM, UNDER THE TAX LAWS, WOULD NOT ARISE.  THE
AMOUNT OF THE JUDGMENT RENDERED AGAINST THE CORPORATION WOULD HAVE
DECREASED THE AMOUNT IT HAD AVAILABLE FOR DISTRIBUTION, WHICH WOULD
HAVE REDUCED THE LIQUIDATING DIVIDENDS PROPORTIONATELY AND DIMINISHED
THE CAPITAL GAINS TAXES ASSESSED AGAINST THE STOCKHOLDERS.  PROBABLY IT
WOULD ALSO HAVE DECREASED THE CORPORATION'S OWN TAXABLE INCOME. 

CONGRESS MIGHT HAVE ALLOWED, UNDER SUCH CIRCUMSTANCES, TAX RETURNS OF
THE PRIOR YEAR TO BE REOPENED OR READJUSTED SO AS TO GIVE THE SAME TAX
RESULTS AS WOULD HAVE OBTAINED HAD THE LIABILITY BECOME KNOWN PRIOR TO
LIQUIDATION.  SUCH A SOLUTION IS FORECLOSED TO US AND THE ALTERNATIVES
LEFT ARE TO REGARD THE JUDGMENT LIABILITY FASTENED BY OPERATION OF LAW
ON THE TRANSFEREE AS AN ORDINARY LOSS FOR THE YEAR OF ADJUDICATION OR
TO REGARD IT AS A CAPITAL LOSS FOR SUCH YEAR. 

THIS COURT SIMPLIFIES THE CHOICE TO ONE OF READING THE ENGLISH
LANGUAGE, AND DECLARES THAT THE LOSSES HERE COME "SQUARELY WITHIN" THE
DEFINITION OF CAPITAL LOSSES CONTAINED WITHIN TWO SECTIONS OF THE
INTERNAL REVENUE CODE.  WHAT SEEMS SO CLEAR TO THIS COURT WAS NOT SEEN
AT ALL BY THE TAX COURT, IN THIS CASE OR IN EARLIER CONSIDERATION OF
THE SAME ISSUE; NOR WAS IT GRASPED BY THE COURT OF APPEALS FOR THE
THIRD CIRCUIT.  COMMISSIONER V. SWITLIK, 184 F.2D 299 (1950). 

I FIND LITTLE AID IN THE CHOICE OF ALTERNATIVES FROM ARGUMENTS BASED
ON EQUITIES.  ONE ENABLES THE TAXPAYERS TO DEDUCT THE AMOUNT OF THE
JUDGMENT AGAINST HIS ORDINARY INCOME WHICH MIGHT BE TAXED AS HIGH AS
87%, WHILE IF THE LIABILITY HAD BEEN ASSESSED AGAINST THE CORPORATION
PRIOR TO LIQUIDATION IT WOULD HAVE REDUCED HIS CAPITAL GAIN WHICH WAS
TAXABLE AT ONLY 25% (NOW 26%).  THE CONSEQUENCE MAY READILY BE
CHARACTERIZED AS A WINDFALL (REGARDING A WINDFALL AS ANYTHING THAT IS
LEFT TO A TAXPAYER AFTER THE COLLECTOR HAS FINISHED WITH HIM). 

ON THE OTHER HAND, ADOPTION OF THE CONTRARY ALTERNATIVE MAY PENALIZE
THE TAXPAYER BECAUSE OF TWO FACTORS:  (1) SINCE CAPITAL LOSSES ARE
DEDUCTIBLE ONLY AGAINST CAPITAL GAINS, PLUS $1,000, A TAXPAYER HAVING
NO NET CAPITAL GAINS IN THE ENSUING FIVE YEARS WOULD HAVE NO
OPPORTUNITY TO DEDUCT ANYTHING BEYOND $5,000; AND (2) HAD THE LIABILITY
BEEN DISCHARGED BY THE CORPORATION, A PORTION OF IT WOULD PROBABLY IN
EFFECT HAVE BEEN PAID BY THE GOVERNMENT, SINCE THE CORPORATION COULD
HAVE TAKEN IT AS A DEDUCTION, WHILE HERE THE TOTAL LIABILITY COMES OUT
OF THE POCKETS OF THE STOCKHOLDERS. 

SOLICITUDE FOR THE REVENUES IS A PLAUSIBLE BUT TREACHEROUS BASIS UPON
WHICH TO DECIDE A PARTICULAR TAX CASE.  A VICTORY MAY HAVE IMPLICATIONS
WHICH IN FUTURE CASES WILL COST THE TREASURY MORE THAN A DEFEAT.  THIS
MIGHT BE SUCH A CASE, FOR ANYTHING I KNOW.  SUPPOSE THAT SUBSEQUENT TO
LIQUIDATION IT IS FOUND THAT A CORPORATION HAS UNDISCLOSED CLAIMS
INSTEAD OF LIABILITIES AND THAT UNDER APPLICABLE STATE LAW THEY MAY BE
PROSECUTED FOR THE BENEFIT OF THE STOCKHOLDERS.  THE LOGIC OF THE
COURT'S DECISION HERE, IF ADHERED TO, WOULD RESULT IN A LESSER RETURN
TO THE GOVERNMENT THAN IF THE RECOVERIES WERE CONSIDERED ORDINARY
INCOME.  WOULD IT BE SO CLEAR THAT THIS IS A CAPITAL LOSS IF THE SHOE
WERE ON THE OTHER FOOT? 

WHERE THE STATUTE IS SO INDECISIVE AND THE IMPORTANCE OF A PARTICULAR
HOLDING LIES IN ITS RATIONAL AND HARMONIOUS RELATION TO THE GENERAL
SCHEME OF THE TAX LAW, I THINK GREAT DEFERENCE IS DUE THE TWICE
EXPRESSED JUDGMENT OF THE TAX COURT.  IN SPITE OF THE GELDING OF DOBSON
V. COMMISSIONER, 320 U.S. 489, BY THE RECENT REVISION OF THE JUDICIAL
CODE, ACT OF JUNE 25, 1948, SEC. 36, 62 STAT. 991-992, I STILL THINK
THE TAX COURT IS A MORE COMPETENT AND STEADY INFLUENCE TOWARD A
SYSTEMATIC BODY OF TAX LAW THAN OUR SPORADIC OMNIPOTENCE IN A FIELD
BESET WITH INVISIBLE BOOMERANGS.  I SHOULD REVERSE, IN RELIANCE UPON
THE TAX COURT'S JUDGMENT MORE, PERHAPS, THAN MY OWN. 
..END :























SANFORD V. KEPNER 344 U.S. 13 


NO. 46.  ARGUED OCTOBER 24, 1952.  - DECIDED NOVEMBER 10, 1952.  - 195
F.2D 387, AFFIRMED. 


IN A PROCEEDING UNDER R.S. SEC. 4915, 35 U.S.C. SEC. 63, BROUGHT BY AN
APPLICANT FOR A PATENT TO REVIEW AN ADVERSE DECISION OF A BOARD OF
INTERFERENCE EXAMINERS, WHEN A DISTRICT COURT HAS FOUND AGAINST
PETITIONER ON THE ISSUE OF PRIORITY OF INVENTION IT NEED NOT GO FURTHER
AND CONSIDER THE VALIDITY OF A RIVAL APPLICANT'S CLAIM TO A PATENT ON
THE SAME DEVICE.  PP. 13-16. 

SANFORD V. KEPNER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN A PROCEEDING UNDER R.S. SEC. 4915, 35 U.S.C. SEC. 63, THE DISTRICT
COURT FOUND AGAINST PETITIONER ON AN ISSUE OF PRIORITY OF INVENTION AND
DISMISSED THE BILL WITHOUT CONSIDERING THE VALIDITY OF A RIVAL
APPLICANT'S CLAIM TO A PATENT ON THE SAME DEVICE.  99 F. SUPP. 221. 
THE COURT OF APPEALS AFFIRMED.  195 F.2D 387.  THIS COURT GRANTED
CERTIORARI.  343 U.S. 976.  AFFIRMED, P. 16. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

CLAIMING HE WAS THE ORIGINAL AND SOLE INVENTOR OF A MECHANICAL
DEVICE, THE RESPONDENT KEPNER ASKED THE UNITED STATES PATENT OFFICE FOR
A PATENT.  LATER THE PETITIONER SANFORD FILED A SIMILAR APPLICATION
MAKING THE SAME CLAIM.  AS AUTHORIZED BY R.S. SEC. 4904, 35 U.S.C. SEC.
52, THE COMMISSIONER OF PATENTS DIRECTED A BOARD OF INTERFERENCE
EXAMINERS TO HOLD HEARINGS AND DETERMINE THE DISPUTE OVER PRIORITY OF
INVENTION - WHICH OF THE TWO FIRST USED THE DEVICE.  THE BOARD DECIDED
FOR RESPONDENT KEPNER.  SANFORD'S APPLICATION FOR PATENT WAS
ACCORDINGLY REFUSED.  AS AUTHORIZED BY R.S. SEC. 4915, 35 U.S.C. SEC.
63, SANFORD BROUGHT THIS BILL IN EQUITY PRAYING THAT HE BE ADJUDGED
INVENTOR OF THE DEVICE AND ENTITLED TO A PATENT.  SANFORD ALSO PRAYED
THAT KEPNER'S CLAIMS BE ADJUDGED UNPATENTABLE, CHARGING THAT MANY
PREVIOUS PATENTS HAD BEEN GRANTED ON KEPNER'S DEVICE, SOME OF WHICH HAD
EXPIRED.  AGREEING WITH THE BOARD OF INTERFERENCE EXAMINERS, THE
DISTRICT COURT FOUND AGAINST SANFORD ON THE ISSUE OF PRIOR USE.  SINCE
THIS WAS ENOUGH TO JUSTIFY REFUSAL TO ISSUE SANFORD A PATENT, THE
DISTRICT COURT DECLINED TO GO FURTHER AND CONSIDER KEPNER'S CLAIM TO A
PATENT.   ACCORDINGLY SANFORD'S BILL WAS DISMISSED.  99 F. SUPP.  221. 
AGREEING WITH THE DISTRICT COURT, THE COURT OF APPEALS AFFIRMED.  195
F.2D 387.  THE CIRCUITS HAVE DIFFERENT VIEWS CONCERNING THE DUTY OF
DISTRICT COURTS TO CONSIDER AND ADJUDICATE QUESTIONS OF INVENTION AND
PATENTABILITY WHEN PARTIES URGE THEM IN R.S.  SEC. 4915 PROCEEDINGS.*
TO SETTLE THESE DIFFERENCES WE GRANTED CERTIORARI.  343 U.S.  976. 

*IN ACCORD WITH THE COURT OF APPEALS, HESTON V. KUHLKE, 179 F.2D 222;
SMITH V. CARTER CARBURETOR CORP., 130 F.2D 555; CLEVELAND TRUST CO. V.
BERRY, 99 F.2D 517.  CONTRA: MINNEAPOLIS HONEYWELL REGULATOR CO. V.
MILWAUKEE GAS SPECIALTY CO., 174 F.2D 203; KNUTSON V. GALLSWORTHY, 82
U.S. APP. D.C. 304, 164 F.2D 497. 

SO FAR AS RELEVANT TO THE PRECISE QUESTION HERE, R.S. SEC. 4915, AS
NOT CONTAINED IN 35 U.S.C. SEC. 63, READS: 

"  ...  WHENEVER ANY APPLICANT IS DISSATISFIED WITH THE DECISION OF
THE BOARD OF INTERFERENCE EXAMINERS, THE APPLICANT  ...  MAY HAVE
REMEDY BY BILL IN EQUITY  ...  AND THE COURT  ...  MAY ADJUDGE THAT
SUCH APPLICANT IS ENTITLED, ACCORDING TO LAW, TO RECEIVE A PATENT FOR
HIS INVENTION ...  .  AND SUCH ADJUDICATION, IF IT BE IN FAVOR OF THE
RIGHT OF THE APPLICANT, SHALL AUTHORIZE THE COMMISSIONER TO ISSUE SUCH
PATENT ON THE APPLICANT FILING IN THE PATENT OFFICE A COPY OF THE
ADJUDICATION AND OTHERWISE COMPLYING WITH THE REQUIREMENTS OF LAW." 

THE OBVIOUS PURPOSE OF THE QUOTED PART OF R.S. SEC. 4915 IS TO GIVE A
JUDICIAL REMEDY TO AN APPLICANT WHO HAS BEEN FINALLY DENIED A PATENT
BECAUSE OF A PATENT OFFICE DECISION AGAINST HIM AND IN FAVOR OF HIS
ADVERSARY ON THE QUESTION OF PRIORITY.  WHEN THE TRIAL COURT DECIDES
THIS FACTUAL ISSUE OF PRIORITY AGAINST HIM AND THUS AFFIRMS THE REFUSAL
OF THE PATENT BY THE PATENT OFFICE, HE HAS OBTAINED THE FULL REMEDY THE
STATUTE GIVES HIM.  ONLY IF HE WINS ON PRIORITY MAY HE PROCEED.  IN
THAT EVENT, THE STATUTE SAYS, THE COURT MAY PROCEED TO "ADJUDGE THAT
SUCH APPLICANT IS ENTITLED, ACCORDING TO LAW, TO RECEIVE A PATENT FOR
HIS INVENTION  ...  ."  SO ADJUDGING, IT MAY AUTHORIZE ISSUANCE OF THE
PATENT.  BUT JUDICIAL AUTHORIZATION OF ISSUANCE IMPLIES JUDICIAL
SANCTION OF PATENTABILITY AND FOR THIS REASON THIS COURT HAS SAID, "IT
NECESSARILY FOLLOWS THAT NO ADJUDICATION CAN BE MADE IN FAVOR OF THE
APPLICANT, UNLESS THE ALLEGED INVENTION FOR WHICH A PATENT IS SOUGHT IS
A PATENTABLE INVENTION."  HILL V. WOOSTER, 132 U.S. 693, 698.  THE
PRINCIPLE OF THE HILL CASE IS THAT THE COURT MUST DECIDE WHETHER CLAIMS
SHOW PATENTABLE INVENTIONS BEFORE AUTHORIZING THE COMMISSIONER TO ISSUE
A PATENT.  NO PART OF ITS HOLDING OR WORDING NOR OF THAT IN HOOVER CO.
V. COE, 325 U.S. 79, REQUIRES US TO SAY R.S. SEC. 4915 COMPELS A
DISTRICT COURT TO ADJUDICATE PATENTABILITY AT THE INSTANCE OF ONE WHOSE
CLAIM IS FOUND TO BE GROUNDLESS.  SANFORD'S CLAIM WAS FOUND TO BE
GROUNDLESS. 

IT IS UNLIKELY THAT THIS EQUITY PROCEEDING WOULD DEVELOP A FULL
INVESTIGATION OF VALIDITY.  THERE WOULD BE NO ATTACK ON THE PATENT
COMPARABLE TO THAT OF AN INFRINGEMENT ACTION.  HERE THE VERY PERSON WHO
CLAIMED AN INVENTION NOW ASKS TO PROVE THAT KEPNER'S SIMILAR DEVICE WAS
NO INVENTION AT ALL BECAUSE OF PATENTS ISSUED LONG BEFORE EITHER PARTY
MADE CLAIM FOR HIS DISCOVERY.  THERE IS NO REAL ISSUE OF INVENTION
BETWEEN THE PARTIES HERE AND WE SEE NO REASON TO READ INTO THE STATUTE
A DISTRICT COURT'S COMPULSORY DUTY TO ADJUDICATE VALIDITY.  AFFIRMED. 
..END :


















FEDERAL POWER COMMISSION V. IDAHO POWER CO. 344 U.S. 17 


NO. 12.  ARGUED OCTOBER 20-21, 1952.  - DECIDED NOVEMBER 10, 1952.  - 89
U.S. APP. D.C. 1, 189 F.2D 665, REVERSED. 


UNDER SEC. 4(E) OF THE FEDERAL POWER ACT, THE FEDERAL POWER COMMISSION
ISSUED TO A POWER COMPANY A LICENSE TO CONSTRUCT, OPERATE AND MAINTAIN
A HYDROELECTRIC PROJECT INCLUDING A DAM, POWER PLANT AND TRANSMISSION
LINES ON PUBLIC LANDS, SUBJECT TO THE CONDITION THAT THE COMPANY PERMIT
THE INTERCONNECTION OF TRANSMISSION FACILITIES OF THE UNITED STATES
WITH THE COMPANY'S TRANSMISSION LINES AND THE TRANSFER OVER THOSE LINES
OF ENERGY GENERATED IN POWER PLANTS OWNED BY THE UNITED STATES.  THE
COURT OF APPEALS HELD THAT THE COMMISSION HAD NO AUTHORITY TO ATTACH
THESE CONDITIONS AND ENTERED A JUDGMENT THAT THE COMMISSION'S ORDER "BE
MODIFIED" AND THAT THE CAUSE BE REMANDED TO THE COMMISSION "FOR THE
ENTRY OF AN ORDER IN ACCORDANCE WITH THE OPINION OF THIS COURT."  ON
MOTION OF THE COMMISSION FOR CLARIFICATION, THE COURT ENTERED A NEW
JUDGMENT, STATING THAT THE ORDER OF THE COMMISSION "BE, AND IT IS
HEREBY, MODIFIED BY STRIKING THEREFROM PARAGRAPH (F) THEREOF
(CONTAINING THE CONDITIONS), AND THAT THE ORDER OF THE FEDERAL POWER
COMMISSION HEREIN AS THUS MODIFIED BE, AND IT IS HEREBY, AFFIRMED." 
HELD: 

1.  WHEN THE COURT OF APPEALS, BY ITS SECOND JUDGMENT, DECIDED THAT
THE LICENSE SHOULD ISSUE WITHOUT THE CONDITIONS, IT USURPED AN
ADMINISTRATIVE FUNCTION.  PP. 19-20. 

(A)  THE POWER OF THE COURT OF APPEALS UNDER SEC. 313(B) "TO AFFIRM,
MODIFY, OR SET ASIDE" AN ORDER OF THE COMMISSION "IN WHOLE OR IN PART"
DOES NOT AUTHORIZE IT TO EXERCISE AN ESSENTIALLY ADMINISTRATIVE
FUNCTION.  P. 21. 

(B)  WHETHER THE OBJECTIVE OF SEC. 10(A) OF THE ACT MAY BE ACHIEVED
IF THE CONTESTED CONDITIONS ARE STRICKEN FROM THE COMMISSION'S ORDER IS
AN ADMINISTRATIVE, NOT A JUDICIAL, DECISION.  P. 21. 

2.  WHEN READ IN THE CONTEXT OF SECS. 4 AND 10 OF THE ACT, SEC. 6,
MAKING EACH LICENSE SUBJECT TO CONDITIONS PRESCRIBED BY THE COMMISSION,
AUTHORIZES THE COMMISSION TO ATTACH THE CONDITIONS IMPOSED HERE; AND
THAT AUTHORITY IS NOT IMPAIRED BY SEC. 210(F) OF PART II OF THE ACT,
PROVIDING THAT NO PROVISION OF PART II SHALL APPLY TO THE UNITED
STATES.  PP. 21-24. 

(A)  PROTECTION OF THE PUBLIC DOMAIN, CONSERVATION OF WATERPOWER
RESOURCES, DEVELOPMENT OF COMPREHENSIVE PLANS FOR WATERWAYS - EACH
MIGHT ON THE FACTS OF A CASE BE SUFFICIENT TO AUTHORIZE THE GRANT OF
PERMISSION TO A PUBLIC UTILITY COMPANY TO USE THE PUBLIC DOMAIN
PROVIDED IT AGREED TO USE ITS EXCESS CAPACITY TO TRANSMIT GOVERNMENT
POWER.  P. 23. 

(B)  THE POWERS CONFERRED BY PART II OF THE ACT TO REGULATE PUBLIC
UTILITIES ENGAGED IN THE INTERSTATE TRANSMISSION AND SALE OF ELECTRIC
ENERGY CANNOT BE CONSTRUED AS A REPEAL BY IMPLICATION OF THE POWERS
CONFERRED BY PART I TO REGULATE PUBLIC LANDS OR THE USE OF NAVIGABLE
STREAMS.  PP. 23-24. 

3.  A PETITION TO THIS COURT FOR CERTIORARI, FILED WITHIN 90 DAYS
AFTER THE COURT OF APPEALS' SECOND JUDGMENT, THOUGH MORE THAN 90 DAYS
AFTER THE FIRST, WAS TIMELY.  PP. 19-20. 

4.  THERE IS NO MERIT IN THE CONTENTION THAT THE COMMISSION'S MOTION
FOR CLARIFICATION WAS UNTIMELY UNDER THE RULES OF THE COURT OF APPEALS
GOVERNING PETITIONS FOR REHEARING, SINCE, ASSUMING THAT THE MOTION WAS
A PETITION FOR REHEARING WITHIN THE MEANING OF THE RULES, IT WAS
ENTERTAINED AND CONSIDERED ON THE MERITS.  P. 21, N. 1. 

FEDERAL POWER COMMISSION V. IDAHO POWER CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE FEDERAL POWER COMMISSION ISSUED TO RESPONDENT POWER COMPANY,
UNDER SEC. 4(E) OF THE FEDERAL POWER ACT, A CONDITIONAL LICENSE TO
CONSTRUCT, OPERATE AND MAINTAIN A HYDROELECTRIC PROJECT.  THE COURT OF
APPEALS MODIFIED THE COMMISSION'S ORDER BY STRIKING OUT THE CONDITIONS,
AND AFFIRMED THE ORDER AS THUS MODIFIED.  89 U.S. APP. D.C. 1, 189 F.2D
665.  THIS COURT GRANTED CERTIORARI.  342 U.S. 941.  REVERSED, P. 24. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT APPLIED TO PETITIONER UNDER SEC. 4(E) OF THE FEDERAL POWER
ACT, 41 STAT.  1065, 49 STAT. 840, 16 U.S.C. SEC. 797(E), FOR A LICENSE
TO CONSTRUCT, OPERATE, AND MAINTAIN A HYDROELECTRIC PROJECT (KNOWN AS
THE BLISS DEVELOPMENT) ON THE SNAKE RIVER IN SOUTHERN IDAHO.  THIS
PROJECT INCLUDED A DAM AND POWER PLANT OCCUPYING SOME 500 ACRES OF
LANDS OF THE UNITED STATES AND TWO TRANSMISSION LINES.  THESE LINES FOR
MOST OF THEIR LENGTH CROSSED LANDS OF THE UNITED STATES AND JOINED THE
COMPANY'S INTERCONNECTED PRIMARY TRANSMISSION SYSTEM. 

THE UNITED STATES HAS POWER PROJECTS IN THIS AREA; AND THE BUREAU OF
RECLAMATION AND THE BONNEVILLE POWER ADMINISTRATION WERE CONTEMPLATING
THE CONSTRUCTION OF A TRANSMISSION LINE WHICH WOULD CONNECT THE SAME
AREAS AS RESPONDENT'S PROPOSED LINES.  THEREFORE THE FEDERAL POWER
COMMISSION, ON THE SUGGESTION OF THE SECRETARY OF THE INTERIOR,
AUTHORIZED THE PROJECT ON CONDITIONS SPECIFIED IN PARAGRAPH (F) OF THE
ORDER.  THESE CONDITIONS, IN SUMMARY, WERE THAT THE LICENSEE PERMIT THE
INTERCONNECTION OF TRANSMISSION FACILITIES OF THE UNITED STATES WITH
THE TWO TRANSMISSION LINES, AND THE TRANSFER OVER THOSE LINES OF ENERGY
GENERATED IN POWER PLANTS OWNED BY THE UNITED STATES "IN SUCH AMOUNTS
AS WILL NOT UNREASONABLY INTERFERE" WITH THE LICENSEE'S USE OF THE
LINES, THE UNITED STATES TO PAY THE LICENSEE FOR GOVERNMENT POWER SO
TRANSMITTED. 

RESPONDENT PETITIONED FOR REVIEW OF THE COMMISSION'S ORDER.  THE
COURT OF APPEALS HELD THAT THE COMMISSION HAD NO AUTHORITY TO ATTACH
THE CONDITION.  IT ENTERED A JUDGMENT THAT THE COMMISSION'S ORDER "BE
MODIFIED" AND THAT THE CAUSE BE REMANDED TO THE COMMISSION "FOR THE
ENTRY OF AN ORDER IN ACCORDANCE WITH THE OPINION OF THIS COURT."  THAT
WAS ON MAY 10, 1951.  89 U.S. APP. D.C. 1, 189 F.2D 665.  THE
COMMISSION MOVED FOR A CLARIFICATION OF THE JUDGMENT.  ON SEPTEMBER 21,
1951, THE COURT OF APPEALS ENTERED A NEW JUDGMENT, STATING THAT THE
ORDER OF THE COMMISSION "BE, AND IT IS HEREBY, MODIFIED BY STRIKING
THEREFROM PARAGRAPH (F) THEREOF, AND THAT THE ORDER OF THE FEDERAL
POWER COMMISSION HEREIN AS THUS MODIFIED BE, AND IT IS HEREBY,
AFFIRMED."  THE PETITION FOR CERTIORARI WAS FILED WITHIN 90 DAYS OF THE
AMENDED ORDER BUT MORE THAN 90 DAYS AFTER THE FIRST ORDER.  THE
QUESTION WHICH THEREFORE LIES AT THE THRESHOLD OF THE CASE IS WHETHER
THE PETITION IS TIMELY.  SEE 28 U.S.C. SEC. 2101(C). 

FIRST.  IF THE COURT DID NO MORE BY THE SECOND JUDGMENT THAN TO
RESTATE WHAT IT HAD DECIDED BY THE FIRST ONE, DEPARTMENT OF BANKING V.
PINK, 317 U.S. 264, WOULD APPLY AND THE 90 DAYS WOULD START TO RUN FROM
THE FIRST JUDGMENT.  BUT THE COURT BY THE SECOND JUDGMENT UNDERTOOK TO
MODIFY THE LICENSE.  BY THE FIRST JUDGMENT IT DID NO MORE THAN KEEP THE
COMMISSION WITHIN THE BOUNDS SET BY ITS OPINION.  ON REMAND THE
COMMISSION MIGHT HAVE REISSUED THE ORDER WITHOUT THE CONTESTED
CONDITIONS OR IT MIGHT HAVE WITHHELD ITS CONSENT TO ANY LICENSE.  IT IS
THE COMMISSION'S JUDGMENT ON WHICH CONGRESS HAS PLACED ITS RELIANCE FOR
CONTROL OF LICENSES.  SEE SECS. 6, 10(A), 10(G).  WHEN THE COURT
DECIDED THAT THE LICENSE SHOULD ISSUE WITHOUT THE CONDITIONS, IT
USURPED AN ADMINISTRATIVE FUNCTION.  THERE DOUBTLESS MAY BE SITUATIONS
WHERE THE PROVISION EXCISED FROM THE ADMINISTRATIVE ORDER IS SEPARABLE
FROM THE REMAINING PARTS OR SO MINOR AS TO MAKE REMAND INAPPROPRIATE. 
BUT THE GUIDING PRINCIPLE, VIOLATED HERE, IS THAT THE FUNCTION OF THE
REVIEWING COURT ENDS WHEN AN ERROR OF LAW IS LAID BARE.  AT THAT POINT
THE MATTER ONCE MORE GOES TO THE COMMISSION FOR RECONSIDERATION.  SEE
FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE BROADCASTING CO., 309
U.S. 134; FEDERAL TRADE COMMISSION V. MORTON SALT CO., 334 U.S. 37. 

THE COURT, IT IS TRUE, HAS POWER "TO AFFIRM, MODIFY, OR SET ASIDE"
THE ORDER OF THE COMMISSION "IN WHOLE OR IN PART."  SEC. 313(B).  BUT
THAT AUTHORITY IS NOT POWER TO EXERCISE AN ESSENTIALLY ADMINISTRATIVE
FUNCTION.  SEE FORD MOTOR CO. V. LABOR BOARD, 305 U.S. 364, 373-374;
SIEGEL CO. V. FEDERAL TRADE COMMISSION, 327 U.S. 608.  THE NATURE OF
THE DETERMINATION IS EMPHASIZED BY SEC. 10(A) WHICH SPECIFIES THAT THE
PROJECT ADOPTED "SHALL BE SUCH AS IN THE JUDGMENT OF THE COMMISSION
WILL BE BEST ADAPTED TO A COMPREHENSIVE PLAN  ...  FOR THE IMPROVEMENT
AND UTILIZATION OF WATER-POWER DEVELOPMENT, AND FOR OTHER BENEFICIAL
PUBLIC USES."  WHETHER THAT OBJECTIVE MAY BE ACHIEVED IF THE CONTESTED
CONDITIONS ARE STRICKEN FROM THE ORDER IS AN ADMINISTRATIVE, NOT A
JUDICIAL, DECISION.  (FN1) 

SECOND.  THE POWER OF CONGRESS OVER PUBLIC LANDS, CONFERRED BY ART.
IV, SEC. 3 OF THE CONSTITUTION, IS "WITHOUT LIMITATIONS," AS WE STATED
IN UNITED STATES V. SAN FRANCISCO, 310 U.S. 16, 29.  THE COURT OF
APPEALS, WHILE RECOGNIZING THAT PRINCIPLE, HELD THAT CONGRESS HAD NOT
GRANTED THE COMMISSION AUTHORITY TO CONDITION THE USE OF PUBLIC LANDS
BY REQUIRING A PUBLIC UTILITY TO CARRY GOVERNMENT POWER.  IT RELIED ON
SEC. 201(F) OF THE ACT WHICH SAYS THAT "NO PROVISION IN THIS PART SHALL
APPLY TO  ...  THE UNITED STATES  ...  ."  THE PART REFERRED TO IS PART
II OF THE ACT WHICH SET UP A SYSTEM OF CONTROL OVER THE TRANSMISSION OF
ELECTRIC ENERGY IN INTERSTATE COMMERCE.  IT GRANTED THE COMMISSION
AUTHORITY, AMONG OTHER THINGS, TO DIRECT A PUBLIC UTILITY TO ESTABLISH
PHYSICAL CONNECTION OF ITS TRANSMISSION FACILITIES WITH THE FACILITIES
OF OTHER PERSONS ENGAGED IN THE TRANSMISSION OR SALE OF ELECTRIC
ENERGY.  SEC. 202(B).  SINCE THAT POWER WAS NOT EXTENDED TO THE UNITED
STATES, THE COURT CONCLUDED THAT A LICENSE UNDER PART I OF THE ACT
COULD NOT BE CONDITIONED ON AN INTER-CONNECTION WITH FEDERAL POWER. 

PART I AND PART II PROVIDE DIFFERENT REGULATORY SCHEMES.  PART II IS
AN EXERCISE OF THE COMMERCE POWER OVER PUBLIC UTILITIES ENGAGED IN THE
INTERSTATE TRANSMISSION AND SALE OF ELECTRIC ENERGY.  SEE S. REP. NO.
621, 74TH CONG., 1ST SESS., P. 17.  PART II DOES NOT UNDERTAKE TO
REGULATE PUBLIC LANDS OR THE USE OF NAVIGABLE STREAMS.  THAT FUNCTION
IS COVERED BY PART I, WHICH DATES BACK TO THE FEDERAL WATER POWER ACT
OF 1920, 41 STAT.  1063.  SECTION 4(E) OF PART I GIVES THE COMMISSION
POWER TO ISSUE LICENSES TO PRIVATE OR PUBLIC BODIES FOR THE PURPOSE OF
"CONSTRUCTING, OPERATING, AND MAINTAINING DAMS, WATER CONDUITS,
RESERVOIRS, POWER HOUSES, TRANSMISSION LINES, OR OTHER PROJECT WORKS
NECESSARY OR CONVENIENT FOR THE DEVELOPMENT AND IMPROVEMENT OF
NAVIGATION AND FOR THE DEVELOPMENT, TRANSMISSION, AND UTILIZATION OF
POWER ACROSS, ALONG, FROM, OR IN ANY OF THE STREAMS OR OTHER BODIES OF
WATER OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS AUTHORITY TO
REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES, OR
UPON ANY PART OF THE PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES
...  ." 

BY SEC. 4(G) THE COMMISSION IS GIVEN AUTHORITY TO INVESTIGATE THE
ACTUAL OR INTENDED OCCUPANCY OF "PUBLIC LANDS" FOR THE PURPOSE OF
DEVELOPING ELECTRIC POWER AND TO ISSUE SUCH ORDER AS IT MAY FIND
"APPROPRIATE, EXPEDIENT, AND IN THE PUBLIC INTEREST TO CONSERVE AND
UTILIZE THE  ...  WATER-POWER RESOURCES OF THE REGION."  AS ALREADY
NOTED, SEC.  10(A) PROVIDES THAT NO LICENSE SHALL BE GRANTED UNLESS IN
THE JUDGMENT OF THE COMMISSION THE PROJECT "WILL BE BEST ADAPTED TO A
COMPREHENSIVE PLAN ...  FOR THE IMPROVEMENT AND UTILIZATION OF WATER
POWER DEVELOPMENT, AND FOR OTHER BENEFICIAL PUBLIC USES  ...  ; AND IF
NECESSARY IN ORDER TO SECURE SUCH PLAN THE COMMISSION SHALL HAVE
AUTHORITY TO REQUIRE THE MODIFICATION OF ANY PROJECT  ...  BEFORE
APPROVAL."  (FN2) 

UNDER THESE SECTIONS THE COMMISSION IS PLAINLY MADE THE GUARDIAN OF
THE PUBLIC DOMAIN.  THE REQUIREMENT THAT EXISTING LINES BE FULLY
UTILIZED BEFORE ADDITIONAL LINES ARE AUTHORIZED WOULD SEEM TO BE
RELEVANT TO A DECISION UNDER SEC. 10(A) THAT THE PROJECT SUBMITTED WAS
CONSONANT WITH THE "COMPREHENSIVE PLAN" FOR THE WATERWAY.  AND THE
COMMISSION MIGHT WELL DETERMINE UNDER SEC. 4(G) THAT IF PUBLIC LANDS
ARE TO BE USED FOR THE TRANSMISSION OF POWER, CONSERVATION OF THE
"WATER-POWER RESOURCES OF THE REGION" REQUIRES THAT PUBLIC POWER AS
WELL AS PRIVATE POWER BE TRANSMITTED OVER THEM. 

AND PUBLIC LANDS.  SECTION 6 MAKES EACH LICENSE SUBJECT TO ALL THE
TERMS AND CONDITIONS OF THE ACT AND TO "SUCH FURTHER CONDITIONS, IF
ANY, AS THE COMMISSION SHALL PRESCRIBE IN CONFORMITY WITH THIS ACT  ...
."  SECTION 6, READ IN THE CONTEXT OF SECS. 4 AND 10, WOULD SEEM TO
GIVE AMPLE AUTHORITY TO THE COMMISSION TO ATTACH THE CONDITIONS IMPOSED
HERE.  PROTECTION OF THE PUBLIC DOMAIN, CONSERVATION OF WATER-POWER
RESOURCES, DEVELOPMENT OF COMPREHENSIVE PLANS FOR THE WATERWAYS - EACH
OF THESE MIGHT ON THE FACTS OF A CASE BE SUFFICIENT TO AUTHORIZE THE
GRANT OF PERMISSION TO A PUBLIC UTILITY COMPANY TO USE THE PUBLIC
DOMAIN PROVIDED IT AGREED TO USE ITS EXCESS CAPACITY TO TRANSMIT
GOVERNMENT POWER. 

IT IS DIFFICULT FOR US TO READ SEC. 201(F) AS IN ANY WAY AFFECTING
THAT POWER.  SECTIONS 201(F) AND 202 DEAL WITH INTERCONNECTIONS OF
FACILITIES GENERALLY.  THEY DO NOT EXTEND THE NEW POWERS GRANTED BY
PART II TO GOVERNMENT LINES.  ON THE OTHER HAND THEY DO NOT PURPORT TO
CHANGE OR ALTER ANY POWER GRANTED UNDER PART I. THEY DO NOT DEAL WITH
THE GRANT OF LICENSES.  THEY DO NOT PURPORT TO LAY DOWN CONDITIONS FOR
THE ISSUANCE OF LICENSES FOR USE OF THE PUBLIC DOMAIN.  WE THEREFORE
CANNOT CONSTRUE THE LIMITATION ON THE NEW POWERS CONFERRED BY PART II
AS A REPEAL BY IMPLICATION OF THE POWERS OVER LICENSEES THAT ARE DEEPLY
ENGRAINED IN PART I OF THE ACT AND PUT THERE BY THE CONGRESS FOR THE
PURPOSE OF PROTECTING THE PUBLIC DOMAIN.  REVERSED. 

FN1  AN ARGUMENT IS MADE THAT THE COMMISSION'S MOTION FOR
CLARIFICATION WAS UNTIMELY UNDER THE RULES OF THE COURT OF APPEALS
GOVERNING PETITIONS FOR REHEARING.  ASSUMING, ARGUENDO, THAT THE MOTION
WAS A PETITION FOR REHEARING WITHIN THE MEANING OF THOSE RULES, IT WAS
ENTERTAINED AND CONSIDERED ON THE MERITS (CF. BOWMAN V. LOPERENA, 311
U.S. 262; PFISTER V. FINANCE CORP., 317 U.S. 144, 149) AND THE NEW
JUDGMENT ENTERED WAS ERRONEOUS. 

FN2  SECTIONS 4(E) AND 10(A) APPEARED IN THE FEDERAL WATER POWER ACT
OF 1920, 41 STAT.  1063, 1065, 1068.  SECTION 4(G) WAS ADDED BY THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49 STAT. 838, 841. 

MR. JUSTICE BURTON AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






















NATHANSON V. NATIONAL LABOR RELATIONS BOARD 344 U.S. 25 


NO. 33.  ARGUED OCTOBER 23, 1952.  - DECIDED NOVEMBER 10, 1952.  - 194
F.2D 248, REVERSED. 


THE NATIONAL LABOR RELATIONS BOARD ORDERED A COMPANY TO PAY CERTAIN
EMPLOYEES BACK PAY.  AFTER AN INVOLUNTARY PETITION IN BANKRUPTCY HAD
BEEN FILED AGAINST THE COMPANY, THE COURT OF APPEALS DECREED
ENFORCEMENT OF THE BOARD'S ORDER.  THE BOARD FILED IN THE BANKRUPTCY
PROCEEDING A PROOF OF CLAIM FOR THE BACK PAY.  HELD: 

1.  THE BOARD IS A "CREDITOR" AS RESPECTS THE BACK-PAY AWARDS, WITHIN
THE MEANING OF THE BANKRUPTCY ACT.  PP. 26-27. 

2.  THE BOARD'S BACK-PAY ORDER IS A PROVABLE CLAIM IN BANKRUPTCY - AS
A DEBT FOUNDED UPON AN "IMPLIED" CONTRACT WITHIN THE MEANING OF SEC.
63(A)(4) OF THE BANKRUPTCY ACT.  P. 27. 

3.  THE BOARD'S CLAIM IS NOT A DEBT DUE TO THE UNITED STATES WITHIN
THE MEANING OF R.S. SEC. 3466, AND IT IS NOT ENTITLED TO PRIORITY UNDER
SEC. 64(A)(5) OF THE BANKRUPTCY ACT, THOUGH IT IS ENTITLED TO SUCH
PRIORITY AS WAGE CLAIMS ENJOY UNDER SEC. 64(A)(2).  BRAMWELL V. U.S.
FIDELITY CO., 269 U.S. 483, DISTINGUISHED.  PP. 27-29. 

4.  COMPUTATION OF THE AMOUNT OF THE BACK-PAY AWARD WAS PROPERLY
REFERRED TO THE BOARD BY THE BANKRUPTCY COURT.  PP. 29-30. 

(A)  THE FIXING OF THE BACK PAY IS ONE OF THE FUNCTIONS CONFIDED TO
THE BOARD AS AN ADMINISTRATIVE MATTER.  PP. 29-30. 

(B)  WISE ADMINISTRATION DEMANDS THAT THE BANKRUPTCY COURT
ACCOMMODATE ITSELF TO THE ADMINISTRATIVE PROCESS AND REFER TO THE BOARD
THE LIQUIDATION OF THE CLAIM, GIVING THE BOARD A REASONABLE TIME FOR
ITS ADMINISTRATIVE DETERMINATION.  P. 30. 

NATHANSON, TRUSTEE IN BANKRUPTCY, V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

A PROOF OF CLAIM FILED BY THE NATIONAL LABOR RELATIONS BOARD, BASED
ON A BACK-PAY AWARD AGAINST THE BANKRUPT, WAS DISALLOWED BY THE REFEREE
IN BANKRUPTCY.  THE DISTRICT COURT SET ASIDE THE DISALLOWANCE.  100 F.
SUPP. 489.  THE COURT OF APPEALS AFFIRMED.  194 F.2D 248.  THIS COURT
GRANTED CERTIORARI.  343 U.S. 962.  REVERSED AND REMANDED, P. 31. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, THE NATIONAL LABOR RELATIONS BOARD, ISSUED A COMPLAINT
AGAINST THE PRESENT BANKRUPT COMPANY ALLEGING UNFAIR LABOR PRACTICES,
AND, AFTER APPROPRIATE PROCEEDINGS, ORDERED THE BANKRUPT TO PAY CERTAIN
EMPLOYEES BACK PAY WHICH THEY HAD LOST ON ACCOUNT OF AN UNFAIR LABOR
PRACTICE OF THE BANKRUPT.  BEFORE THE ORDER WAS ENFORCED BY THE COURT
OF APPEALS AN INVOLUNTARY PETITION HAD BEEN FILED AGAINST THE COMPANY. 
THEREAFTER THE COURT OF APPEALS ENTERED ITS DECREE, ENFORCING THE
BOARD'S ORDER.  IN DUE COURSE THE BOARD FILED A PROOF OF CLAIM FOR THE
BACK PAY WHICH WAS DISALLOWED BY THE REFEREE.  THE DISTRICT COURT SET
ASIDE THE DISALLOWANCE.  100 F. SUPP. 489.  THE COURT OF APPEALS
AFFIRMED (194 F.2D 248) HOLDING THAT THE BOARD'S ORDER IS A PROVABLE
CLAIM IN BANKRUPTCY, THAT THE BOARD CAN LIQUIDATE THE CLAIM, AND THAT
IT IS ENTITLED TO PRIORITY AS A DEBT OWING TO THE UNITED STATES UNDER
SEC. 64(A)(5) OF THE ACT.  THE PETITION FOR CERTIORARI WAS GRANTED
BECAUSE OF A CONFLICT ON THE QUESTION OF PRIORITY BETWEEN THAT DECISION
AND LABOR BOARD V. KILLOREN, 122 F.2D 609, DECIDED BY THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

WE THINK THE BOARD IS A CREDITOR AS RESPECTS THE BACK PAY AWARDS,
WITHIN THE MEANING OF THE BANKRUPTCY ACT.  (FN1)  THE BOARD IS THE
PUBLIC AGENT CHOSEN BY CONGRESS TO ENFORCE THE NATIONAL LABOR RELATIONS
ACT.  AMALGAMATED WORKERS V. EDISON CO., 309 U.S. 261, 269.  A BACK PAY
ORDER IS A REPARATION ORDER DESIGNED TO VINDICATE THE PUBLIC POLICY OF
THE STATUTE BY MAKING THE EMPLOYEES WHOLE FOR LOSSES SUFFERED ON
ACCOUNT OF AN UNFAIR LABOR PRACTICE.  PHELPS DODGE CORP. V. LABOR
BOARD, 313 U.S. 177, 197.  CONGRESS HAS MADE THE BOARD THE ONLY PARTY
ENTITLED TO ENFORCE THE ACT.  A BACK PAY ORDER IS A COMMAND TO PAY AN
AMOUNT OWED THE BOARD AS AGENT FOR THE INJURED EMPLOYEES.  THE BOARD IS
THEREFORE A CLAIMANT IN THE AMOUNT OF THE BACK PAY. 

THE CLAIM IS PROVABLE AS A DEBT FOUNDED UPON AN "IMPLIED" CONTRACT
WITHIN THE MEANING OF SEC. 63(A)(4) OF THE BANKRUPTCY ACT.  (FN2)  IT
IS AN INDEBTEDNESS ARISING OUT OF AN OBLIGATION IMPOSED BY STATUTE - AN
INCIDENT FIXED BY LAW TO THE EMPLOYER-EMPLOYEE RELATIONSHIP.  A
LIABILITY BASED ON QUASI-CONTRACT IS ONE ON AN "IMPLIED" CONTRACT
WITHIN THE MEANING OF SEC. 63(A)(4) OF THE BANKRUPTCY ACT.  SEE BROWN
V. O'KEEFE, 300 U.S. 598, 606-607. 

WE DO NOT, HOWEVER, AGREE WITH THE LOWER COURT THAT THIS CLAIM,
ENFORCEABLE BY THE BOARD, IS A DEBT DUE TO THE UNITED STATES WITHIN THE
MEANING OF R.S. SEC. 3466, AND THEREFORE ENTITLED TO PRIORITY UNDER
SEC. 64(A)(5) OF THE BANKRUPTCY ACT.  IT DOES NOT FOLLOW THAT BECAUSE
THE BOARD IS AN AGENCY OF THE UNITED STATES, ANY DEBT OWED IT IS A DEBT
OWING THE UNITED STATES WITHIN THE MEANING OF R.S. SEC. 3466.  THE
PRIORITY GRANTED BY THAT STATUTE WAS DESIGNED "TO SECURE AN ADEQUATE
REVENUE TO SUSTAIN THE PUBLIC BURTHENS AND DISCHARGE THE PUBLIC
DEBTS."  SEE UNITED STATES V. STATE BANK, 6 PET. 29, 35.  THERE IS NO
FUNCTION HERE OF ASSURING THE PUBLIC REVENUE.  THE BENEFICIARIES OF THE
CLAIMS ARE PRIVATE PERSONS AS WAS THE RECEIVER IN AMERICAN SURETY CO.
V. AKRON SAVINGS BANK, 212 U.S. 557. 

IT IS TRUE THAT BRAMWELL V. U.S. FIDELITY CO., 269 U.S. 483, EXTENDED
THE PRIORITY TO A CLAIM OF THE UNITED STATES FOR INDIAN MONEYS.  BUT
THAT CASE RESTS ON THE STATUS OF THE INDIANS AS WARDS OF THE UNITED
STATES (SEE BOWLING V. UNITED STATES, 233 U.S. 528) AND THE CONTINUING
RESPONSIBILITY WHICH IT HAS FOR THE PROTECTION OF THEIR INTERESTS.  SEE
UNITED STATES V. RICKERT, 188 U.S. 432, 444; BOARD OF COMMISSIONERS V.
SEBER, 318 U.S. 705.  WE CANNOT EXTEND THAT REASONING SO AS TO GIVE
PRIORITY TO A CLAIM WHICH THE UNITED STATES IS COLLECTING FOR THE
BENEFIT OF A PRIVATE PARTY.  SEE AMERICAN SURETY CO. V. AKRON SAVINGS
BANK, SUPRA.  THE BENEFICIARIES HERE ARE NOT WARDS OF THE FEDERAL
GOVERNMENT; THEY ARE WAGE CLAIMANTS WHO WERE DISCRIMINATED AGAINST BY
THEIR EMPLOYER.  THE BOARD HAS ELIMINATED THE DISCRIMINATION BY THE
BACK PAY ORDER; AND ENFORCEMENT OF ITS ORDER HAS BEEN DIRECTED BY THE
COURT OF APPEALS.  THE FULL SANCTION OF THE NATIONAL LABOR RELATIONS
ACT HAS THEREFORE BEEN PLACED BEHIND THE ORDER.  THE BOARD ARGUES THAT
THE INTEREST OF THE UNITED STATES IN ERADICATING UNFAIR LABOR PRACTICES
IS SO GREAT THAT THE BACK PAY ORDER SHOULD BE GIVEN THE ADDITIONAL
SANCTION OF PRIORITY IN PAYMENT.  WHETHER THAT SHOULD BE DONE IS A
LEGISLATIVE DECISION.  THE CONTEST NOW IS NO LONGER BETWEEN EMPLOYEES
AND MANAGEMENT BUT BETWEEN VARIOUS CLASSES OF CREDITORS.  THE POLICY OF
THE NATIONAL LABOR RELATIONS ACT IS FULLY SERVED BY RECOGNIZING THE
CLAIM FOR BACK PAY AS ONE TO BE PAID FROM THE ESTATE.  THE QUESTION
WHETHER IT SHOULD BE PAID IN PREFERENCE TO OTHER CREDITORS IS A
QUESTION TO BE ANSWERED FROM THE BANKRUPTCY ACT.  WHEN CONGRESS CAME TO
CLAIMS FOR UNPAID WAGES IT DID NOT GRANT ALL OF THEM PRIORITY.  IT
LIMITED THE PRIORITY TO $600 FOR EACH CLAIMANT AND EVEN THEN ONLY
ALLOWED IT AS RESPECTS WAGES EARNED WITHIN THREE MONTHS BEFORE THE DATE
OF THE COMMENCEMENT OF THE PROCEEDINGS.  SEC. 64(A)(2).  WE WOULD
DEPART FROM THAT POLICY IF WE GRANTED THE PRIORITY TO ONE CLASS OF WAGE
CLAIMANTS IRRESPECTIVE OF THE AMOUNT OF THE CLAIM OR THE TIME OF ITS
ACCRUAL.  THE THEME OF THE BANKRUPTCY ACT IS "EQUALITY OF DISTRIBUTION"
(SAMPSELL V. IMPERIAL PAPER CORP., 313 U.S. 215, 219); AND IF ONE
CLAIMANT IS TO BE PREFERRED OVER OTHERS, THE PURPOSE SHOULD BE CLEAR
FROM THE STATUTE.  WE CAN FIND IN THE BANKRUPTCY ACT NO WARRANT FOR
GIVING THESE BACK PAY AWARDS ANY DIFFERENT TREATMENT THAN OTHER WAGE
CLAIMS ENJOY. 

THE TRUSTEE CLAIMS THAT THE LIQUIDATION OF THE BACK PAY AWARD SHOULD
NOT HAVE BEEN REFERRED TO THE BOARD.  SECTION 10(C) OF THE NATIONAL
LABOR RELATIONS ACT AUTHORIZES THE BOARD, ONCE AN UNFAIR LABOR PRACTICE
HAS BEEN FOUND, TO REQUIRE, INTER ALIA, THE PERSON WHO COMMITTED IT TO
"TAKE SUCH AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES
WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES OF THIS
ACT."  THE FIXING OF THE BACK PAY IS ONE OF THE FUNCTIONS CONFIDED
SOLELY TO THE BOARD.  AT THE TIME AN ORDER OF THE BOARD IS ENFORCED THE
AMOUNT OF BACK PAY IS OFTEN NOT COMPUTED.  ONCE AN ENFORCEMENT ORDER
ISSUES THE BOARD MUST WORK OUT THE DETAILS OF THE BACK PAY THAT IS DUE
AND THE REINSTATEMENT OF EMPLOYEES THAT HAS BEEN DIRECTED.  THIS MAY BE
DONE BY NEGOTIATION; OR IT MAY HAVE TO BE DONE IN A PROCEEDING BEFORE
THE BOARD.  THE COMPUTATION OF THE AMOUNT DUE MAY NOT BE A SIMPLE
MATTER.  IT MAY REQUIRE, IN ADDITION TO THE PROJECTION OF EARNINGS
WHICH THE EMPLOYEE WOULD HAVE ENJOYED HAD HE NOT BEEN DISCHARGED AND
THE COMPUTATION OF ACTUAL INTERIM EARNINGS, THE DETERMINATION WHETHER
THE EMPLOYEE WILFULLY INCURRED LOSSES, WHETHER THE BACK PAY PERIOD
SHOULD BE TERMINATED BECAUSE OF OFFERS OF REINSTATEMENT OR THE
WITHDRAWAL OF THE EMPLOYEE FROM THE LABOR MARKET, WHETHER THE EMPLOYEE
RECEIVED EQUIVALENT EMPLOYMENT, AND THE LIKE.  SEE PHELPS DODGE CORP.
V. LABOR BOARD, SUPRA, 190 ET SEQ. CONGRESS MADE THE RELATION OF REMEDY
TO POLICY AN ADMINISTRATIVE MATTER, SUBJECT TO LIMITED JUDICIAL REVIEW,
AND CHOSE THE BOARD AS ITS AGENT FOR THE PURPOSE. 

THE BANKRUPTCY COURT NORMALLY SUPERVISES THE LIQUIDATION OF CLAIMS. 
SEE GARDNER V. NEW JERSEY, 329 U.S. 565, 573.  BUT THE RULE IS NOT
INEXORABLE.  A SOUND DISCRETION MAY INDICATE THAT A PARTICULAR
CONTROVERSY SHOULD BE REMITTED TO ANOTHER TRIBUNAL FOR LITIGATION.  SEE
THOMPSON V. MAGNOLIA CO., 309 U.S. 478, 483.  AND WHERE THE MATTER IN
CONTROVERSY HAS BEEN ENTRUSTED BY CONGRESS TO AN ADMINISTRATIVE AGENCY,
THE BANKRUPTCY COURT NORMALLY SHOULD STAY ITS HAND PENDING AN
ADMINISTRATIVE DECISION.  THAT WAS OUR RULING IN SMITH V. HOBOKEN R.
CO., 328 U.S. 123, AND THOMPSON V. TEXAS M.R. CO., 328 U.S. 134, WHERE
WE DIRECTED THE REORGANIZATION COURT TO AWAIT ADMINISTRATIVE RULINGS BY
THE INTERSTATE COMMERCE COMMISSION BEFORE ADJUDICATING THE
CONTROVERSIES BEFORE IT.  LIKE CONSIDERATIONS ARE RELEVANT HERE.  IT IS
THE BOARD, NOT THE REFEREE IN BANKRUPTCY NOR THE COURT, THAT HAS BEEN
ENTRUSTED BY CONGRESS WITH AUTHORITY TO DETERMINE WHAT MEASURES WILL
REMEDY THE UNFAIR LABOR PRACTICES.  WE THINK WISE ADMINISTRATION
THEREFORE DEMANDS THAT THE BANKRUPTCY COURT ACCOMMODATE ITSELF TO THE
ADMINISTRATIVE PROCESS AND REFER TO THE BOARD THE LIQUIDATION OF THE
CLAIM, GIVING THE BOARD A REASONABLE TIME FOR ITS ADMINISTRATIVE
DETERMINATION. 

IN SUMMARY, WE AGREE WITH THE COURT OF APPEALS THAT THE CLAIM WAS
PROVABLE BY THE BOARD AND THAT THE COMPUTATION OF THE AMOUNT OF THE
AWARD WAS PROPERLY REFERRED TO THE BOARD.  BUT SINCE WE DISAGREE WITH
THE RULING ON THE PRIORITY OF THE CLAIM WE REVERSE THE JUDGMENT AND
REMAND THE CAUSE FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT
IS SO ORDERED. 

FN1  "'CREDITOR' SHALL INCLUDE ANYONE WHO OWNS A DEBT, DEMAND, OR
CLAIM PROVABLE IN BANKRUPTCY, AND MAY INCLUDE HIS DULY AUTHORIZED
AGENT, ATTORNEY, OR PROXY."  11 U.S.C.  SEC. 1(11). 

FN2  "DEBTS OF THE BANKRUPT MAY BE PROVED AND ALLOWED AGAINST HIS
ESTATE WHICH ARE FOUNDED UPON ...  (4) AN OPEN ACCOUNT, OR A CONTRACT
EXPRESS OR IMPLIED."  SEC. 63(A)(4); 11 U.S.C. SEC. 103(A)(4). 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

I THINK WE SHOULD AFFIRM THE JUDGMENT BELOW.  I AGREE THAT THE CLAIM
IS ONE WHICH CAN BE PROVED IN BANKRUPTCY BY THE UNITED STATES.  THE
SAME REASONING WHICH ENABLES THE GOVERNMENT TO ASSERT THE CLAIM WOULD
SEEM TO ENABLE IT TO ASSERT THE PRIORITY. 

THE CLAIMS WHICH THE UNITED STATES ASSERTS HEREIN ARE SOMETHING MORE
THAN MERELY PRIVATE INDEBTEDNESS.  THE DEBTOR'S LIABILITY, ENFORCEABLE
ONLY BY THE GOVERNMENT, IS ONE OF THE MOST IMPORTANT SANCTIONS TO
EFFECTUATE THE POLICY OF THE NATIONAL LABOR RELATIONS ACT.  THAT IS
ONE, AT LEAST, OF THE REASONS WHY CONGRESS DID NOT SEE FIT TO LEAVE
PROSECUTION OF THESE USUALLY SMALL CLAIMS TO SCATTERED AND OFTEN
IMPECUNIOUS INDIVIDUAL WAGE EARNERS IN A MULTIPLICITY OF ACTIONS. 

I SEE NOTHING IN THE POLICY OF THE BANKRUPTCY ACT WHICH PRECLUDES
THESE CLAIMS, ALLOWED IN THE GOVERNMENT'S RIGHT AND IN ITS NAME, FROM
SHARING IN THE GOVERNMENT'S GENERAL PRIORITY.  TITLE 11, SEC. 104(A)
SETS UP FIVE LEVELS OF PRIORITY:  FIRST IS ADMINISTRATION EXPENSES;
SECOND, WAGES NOT TO EXCEED $600 TO EACH CLAIMANT WHICH HAVE BEEN
EARNED WITHIN THREE MONTHS BEFORE COMMENCEMENT OF BANKRUPTCY
PROCEEDINGS; THIRD, CERTAIN COSTS AND EXPENSES NOT MATERIAL HERE;
FOURTH, TAXES LEGALLY DUE AND OWING BY THE BANKRUPT TO THE UNITED
STATES, OR ANY STATE OR ANY SUBDIVISION THEREOF; FIFTH, DEBTS OWING TO
ANY PERSON, INCLUDING THE UNITED STATES, WHO UNDER ITS LAWS IS ENTITLED
TO PRIORITY. 

IT CAN HARDLY BE QUESTIONED THAT LABOR BOARD AWARDS CONSTITUTE WAGES
OR THEIR EQUIVALENT, BUT BENEFICIARIES OF THESE AWARDS RARELY CAN
COMPLY WITH THE THREE-MONTHS TIME LIMITATION FOR WAGE PRIORITY BECAUSE
OF THE LAG OCCASIONED BY LABOR BOARD PROCEEDINGS TO ESTABLISH THE
UNLAWFULNESS OF THEIR DISCHARGE BY THE EMPLOYER.  IF THEY COULD DO SO,
THEIR CLAIMS WOULD DOUBTLESS TAKE THE SECOND PRIORITY AND BE PAID IN
PREFERENCE TO EVERYTHING EXCEPT ADMINISTRATION EXPENSES. 

THE JUDGMENT BELOW DENIES THESE CLAIMS SECOND PRIORITY BUT ADMITS
THEM TO THE FIFTH CLASS.  AHEAD OF THEM, IN THE FOURTH CLASS, ARE ALL
TAXES OWING TO THE UNITED STATES AND TO ANY STATE OR SUBDIVISION, AND
THIS OBVIOUSLY IS THE PRIORITY INTENDED TO PROTECT THE FEDERAL
REVENUES.  ONLY AFTER ALL REVENUE REQUIREMENTS ARE THUS SATISFIED DOES
THE JUDGMENT BELOW ALLOW THESE CLAIMS TO BE PAID.  THE BANKRUPTCY ACT
IN THIS FIFTH CATEGORY CERTAINLY CONTEMPLATES A CLASS OF GOVERNMENT
CLAIMS NOT ARISING OUT OF TAXATION.  IT DOES NOT SEEM TO ME
INAPPROPRIATE TO CONSIDER THE RELATION OF THE GOVERNMENT TO THE WRONGED
LABORER ESTABLISHED BY THE LABOR RELATIONS ACT AS ANALOGOUS TO THE
GOVERNMENT'S WARDSHIP TOWARD INDIANS, FOUND TO WARRANT INVOCATION OF
ITS PRIORITY IN BRAMWELL V. UNITED STATES FIDELITY CO., 269 U.S. 483. 
THE SLOGAN "EQUALITY OF DISTRIBUTION" CAN HAVE LITTLE MEANING WHEN WE
ARE CONSIDERING A SECTION OF A STATUTE DESIGNED TO ESTABLISH INEQUALITY
BY A SERIES OF PRIORITIES.  TO PROTECT THE BANKRUPT'S ESTATE AGAINST
INEQUALITIES CAUSED BY THE UNLAWFUL PREFERENCES ATTEMPTED BY THE
BANKRUPT IS ONE THING; TO INVOKE SUCH A "THEME" TO LEVEL OUT PRIORITIES
CREATED BY STATUTE IS ANOTHER. 

WHILE THE LEGISLATION IS NOT AS COMPLETE OR CLEAR AS ONE WOULD LIKE,
SUPPLYING THE RULE FOR CONFLICTS UNANTICIPATED BY CONGRESS IS A LARGE
PART OF OUR WORK AND I THINK THE COURTS BELOW HAVE ARRIVED AT A
PRACTICAL SOLUTION OF THIS QUESTION THAT ACCOMPLISHES THE PURPOSES BOTH
OF THE BANKRUPTCY ACT AND THE NATIONAL LABOR RELATIONS ACT. 
..END :

















UNITED STATES V. L.A. TUCKER TRUCK LINES, INC. 344 U.S. 33 


NO. 18.  ARGUED OCTOBER 20, 1952.  - DECIDED NOVEMBER 10, 1952.  - 100
F. SUPP. 432, REVERSED. 


A MOTOR CARRIER APPLIED TO THE INTERSTATE COMMERCE COMMISSION FOR A
CERTIFICATE OF CONVENIENCE AND NECESSITY UNDER SEC. 207(A) OF THE
INTERSTATE COMMERCE ACT.  APPELLEE INTERVENED IN OPPOSITION.  THE
HEARINGS WERE CONDUCTED BY AN EXAMINER NOT APPOINTED PURSUANT TO SEC.
11 OF THE ADMINISTRATIVE PROCEDURE ACT; BUT APPELLEE DID NOT OBJECT AT
ANY STAGE OF THE ADMINISTRATIVE PROCEEDINGS, ALTHOUGH IT HAD AMPLE
OPPORTUNITY TO TO SO.  THE COMMISSION GRANTED THE CERTIFICATE. 
APPELLEE PETITIONED A DISTRICT COURT TO SET ASIDE THE COMMISSION'S
ACTION AND, FOR THE FIRST TIME, CHALLENGED ITS VALIDITY ON THE GROUND
THAT THE EXAMINER WAS NOT APPOINTED PURSUANT TO SEC. 11 OF THE
ADMINISTRATIVE PROCEDURE ACT.  IT OFFERED NO EXCUSE FOR ITS FAILURE TO
RAISE THE QUESTION SOONER AND MADE NO CLAIM OF ACTUAL PREJUDICE BY THE
CONDUCT OF THE EXAMINER OR THE MANNER OF HIS APPOINTMENT.  HELD: THE
DISTRICT COURT SHOULD NOT ENTERTAIN THIS OBJECTION WHEN FIRST MADE AT
THAT STAGE OF THE PROCEEDINGS.   PP. 34-38. 

(A)  THE DEFECT IN THE EXAMINER'S APPOINTMENT WAS AN IRREGULARITY
WHICH WOULD INVALIDATE A RESULTING ORDER IF THE COMMISSION HAD
OVERRULED AN APPROPRIATE OBJECTION MADE DURING THE HEARINGS.  P. 38. 

(B)  BUT IT IS NOT ONE WHICH DEPRIVES THE COMMISSION OF POWER OR
JURISDICTION, SO THAT EVEN IN THE ABSENCE OF TIMELY OBJECTION ITS ORDER
SHOULD BE SET ASIDE AS A NULLITY.  P. 38. 

(C)  RISS & CO. V. UNITED STATES, 341 U.S. 907, AND WONG YANG SUNG V.
MCGRATH, 339 U.S. 33, DISTINGUISHED.  PP. 36-38. 

UNITED STATES ET AL. V. L.A. TUCKER TRUCK LINES, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

THE DISTRICT COURT SET ASIDE AN ORDER ISSUED BY THE INTERSTATE
COMMERCE COMMISSION UNDER SEC. 207(A) OF THE INTERSTATE COMMERCE ACT,
ON THE SOLE GROUND THAT THE HEARINGS ON THE APPLICATION THEREFOR WERE
CONDUCTED BY AN EXAMINER NOT APPOINTED PURSUANT TO SEC. 11 OF THE
ADMINISTRATIVE PROCEDURE ACT.  100 F. SUPP. 432.  ON APPEAL TO THIS
COURT, REVERSED AND REMANDED, P. 38. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

ONE CUNNINGHAM APPLIED TO THE INTERSTATE COMMERCE COMMISSION FOR A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO AUTHORIZE EXTENSION
OF HIS EXISTING MOTOR CARRIER ROUTE.  (FN1)  A RAILROAD AND ELEVEN
MOTOR CARRIERS, INCLUDING APPELLEE, INTERVENED TO OPPOSE.  THE ISSUES
WERE REFERRED TO AN EXAMINER WHO AFTER HEARING RECOMMENDED THAT, WITH
EXCEPTIONS NOT MATERIAL HERE, A CERTIFICATE BE GRANTED.  APPELLEE
EXCEPTED, WHEREUPON DIVISION 5 OF THE COMMISSION, IN SUBSTANCE,
APPROVED THE RECOMMENDATION.  APPELLEE REQUESTED RECONSIDERATION BY THE
FULL COMMISSION, WHICH WAS DENIED, AND THEN PETITIONED FOR
"EXTRAORDINARY RELIEF," WHICH ALSO WAS REFUSED.  THE COMMISSION
THEREUPON ISSUED A CERTIFICATE TO CUNNINGHAM.  APPELLEE, UPON THE
GROUND THAT THE EVIDENCE DID NOT SHOW NEED FOR THE ADDITIONAL
TRANSPORTATION SERVICE, PETITIONED THE DISTRICT COURT TO SET ASIDE THE
CERTIFICATE AND ORDER.  THE COMMISSION AND THE UNITED STATES ANSWERED
AND A THREE-JUDGE COURT WAS CONVENED. 

ON THE DAY APPOINTED FOR HEARING, APPELLEE MOVED FOR LEAVE TO AMEND
ITS PETITION TO RAISE, FOR THE FIRST TIME, A CONTENTION THAT THE
COMMISSION'S ACTION WAS INVALID FOR WANT OF JURISDICTION BECAUSE THE
EXAMINER HAD NOT BEEN APPOINTED PURSUANT TO SEC. 11 OF THE
ADMINISTRATIVE PROCEDURE ACT.  (FN2) THE DISTRICT COURT ALLOWED
AMENDMENT AND, UPON PROOF THAT THE APPOINTMENT HAD NOT BEEN IN
ACCORDANCE WITH THAT ACT, INVALIDATED THE ORDER AND CERTIFICATE WITHOUT
GOING INTO THE MERITS OF THE ISSUE TENDERED IN THE ORIGINAL COMPLAINT. 
(FN3)  THIS APPEAL BY THE UNITED STATES AND THE INTERSTATE COMMERCE
COMMISSION RAISES BUT A SINGLE QUESTION - WHETHER SUCH AN OBJECTION,
FIRST MADE AT THAT STAGE OF THE PROCEEDINGS, WAS NOT ERRONEOUSLY
ENTERTAINED.  WE HOLD THAT IT WAS. 

APPELLEE DID NOT OFFER NOR DID THE COURT REQUIRE ANY EXCUSE FOR ITS
FAILURE TO RAISE THE OBJECTION UPON AT LEAST ONE OF ITS MANY
OPPORTUNITIES DURING THE ADMINISTRATIVE PROCEEDING.  APPELLEE DOES NOT
CLAIM TO HAVE BEEN MISLED OR IN ANY WAY HAMPERED IN ASCERTAINING THE
FACTS ABOUT THE EXAMINER'S APPOINTMENT.  IT DID NOT BESTIR ITSELF TO
LEARN THE FACTS UNTIL LONG AFTER THE ADMINISTRATIVE PROCEEDING WAS
CLOSED AND MONTHS AFTER THE CASE WAS AT ISSUE IN THE DISTRICT COURT, AT
WHICH TIME THE COMMISSION PROMPTLY SUPPLIED THE FACTS UPON WHICH THE
CONTENTION WAS BASED AND SUSTAINED. 

THE APPARENT REASON FOR COMPLACENCY WAS THAT IT WAS NOT ACTUALLY
PREJUDICED BY THE CONDUCT OR MANNER OF APPOINTMENT OF THE EXAMINER. 
THERE IS NO SUGGESTION THAT HE EXHIBITED BIAS, FAVORITISM OR
UNFAIRNESS.  NOR IS THERE GROUND FOR ASSUMING IT FROM THE RELATIONSHIPS
IN THE PROCEEDING.  HE DID NOT ACT AND WAS NOT EXPECTED TO ACT BOTH AS
PROSECUTOR AND JUDGE.  THE COMMISSION, WHICH APPOINTED HIM, DID NOT
INSTITUTE OR BECOME A PARTY IN INTEREST TO THE PROCEEDING.  NEITHER IT
NOR ITS EXAMINER HAD ANY FUNCTION EXCEPT TO DECIDE JUSTLY BETWEEN
CONTESTANTS IN AN ADVERSARY PROCEEDING.  THE ISSUE IS CLEARLY AN
AFTERTHOUGHT, BROUGHT FORWARD AT THE LAST POSSIBLE MOMENT TO UNDO THE
ADMINISTRATIVE PROCEEDINGS WITHOUT CONSIDERATION OF THE MERITS AND CAN
PREVAIL ONLY FROM TECHNICAL COMPULSION IRRESPECTIVE OF CONSIDERATIONS
OF PRACTICAL JUSTICE. 

IN RISS & CO. V. UNITED STATES, 341 U.S. 907, THIS COURT HELD THAT
OFFICERS HEARING APPLICATIONS FOR CERTIFICATES OF CONVENIENCE AND
NECESSITY UNDER SEC. 207(A) OF THE INTERSTATE COMMERCE ACT ARE SUBJECT
TO THE PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT.  (FN4)  BUT
TIMELINESS OF THE OBJECTION WAS NOT BEFORE US, BECAUSE IN THAT CASE THE
EXAMINER'S APPOINTMENT HAD BEEN TWICE CHALLENGED IN THE ADMINISTRATIVE
PROCEEDINGS, ONCE, AS IT SHOULD HAVE BEEN, BEFORE THE EXAMINER AT THE
HEARINGS AND AGAIN BEFORE THE COMMISSION ON A PETITION FOR REHEARING. 
THAT DECISION ESTABLISHED ONLY THAT A LITIGANT IN SUCH A CASE AS THIS
WHO DOES MAKE SUCH DEMAND AT THE TIME OF HEARING IS ENTITLED TO AN
EXAMINER CHOSEN AS THE ACT PRESCRIBES. 

WE HAVE RECOGNIZED IN MORE THAN A FEW DECISIONS, (FN5) AND CONGRESS
HAS RECOGNIZED IN MORE THAN A FEW STATUTES, (FN6) THAT ORDERLY
PROCEDURE AND GOOD ADMINISTRATION REQUIRE THAT OBJECTIONS TO THE
PROCEEDINGS OF AN ADMINISTRATIVE AGENCY BE MADE WHILE IT HAS
OPPORTUNITY FOR CORRECTION IN ORDER TO RAISE ISSUES REVIEWABLE BY THE
COURTS.  IT IS URGED IN THIS CASE THAT THE COMMISSION HAD A
PREDETERMINED POLICY ON THIS SUBJECT WHICH WOULD HAVE REQUIRED IT TO
OVERRULE THE OBJECTION IF MADE.   WHILE THIS MAY WELL BE TRUE, THE
COMMISSION IS OBLIGED TO DEAL WITH A LARGE NUMBER OF LIKE CASES. 
REPETITION OF THE OBJECTION IN THEM MIGHT LEAD TO A CHANGE OF POLICY,
OR, IF IT DID NOT, THE COMMISSION WOULD AT LEAST BE PUT ON NOTICE OF
THE ACCUMULATING RISK OF WHOLESALE REVERSALS BEING INCURRED BY ITS
PERSISTENCE.  (FN7)  SIMPLE FAIRNESS TO THOSE WHO ARE ENGAGED IN THE
TASKS OF ADMINISTRATION, AND TO LITIGANTS, REQUIRES AS A GENERAL RULE
THAT COURTS SHOULD NOT TOPPLE OVER ADMINISTRATIVE DECISIONS UNLESS THE
ADMINISTRATIVE BODY NOT ONLY HAS ERRED BUT HAS ERRED AGAINST OBJECTION
MADE AT THE TIME APPROPRIATE UNDER ITS PRACTICE. 

IT IS ARGUED, HOWEVER, THAT THIS CASE FALLS OUTSIDE OF THIS GENERAL
RULE AND THE RESULT BELOW IS TECHNICALLY COMPELLED BECAUSE, IF THE
APPOINTMENT OF THE HEARING EXAMINER WAS IRREGULAR, THE COMMISSION IN
SOME MANNER LOST JURISDICTION AND ITS ORDER IS TOTALLY VOID.  THIS
INFERENCE IS DRAWN FROM OUR DECISION IN WONG YANG SUNG V. MCGRATH, 339
U.S. 33, FOR IT IS CONTENDED WE COULD NOT HAVE SUSTAINED A COLLATERAL
ATTACK BY WRIT OF HABEAS CORPUS IN THAT CASE UNLESS WE FOUND THE DEFECT
IN THAT EXAMINER'S APPOINTMENT TO BE ONE OF JURISDICTIONAL MAGNITUDE. 
WE NEED NOT INQUIRE WHAT SHOULD HAVE BEEN THE RESULT UPON THAT CASE HAD
THE GOVERNMENT DENIED OR THE COURT CONSIDERED WHETHER THE OBJECTION
THERE SUSTAINED WAS TAKEN IN TIME.  THE EFFECT OF THE OMISSION WAS NOT
THERE RAISED IN BRIEFS OR ARGUMENT NOR DISCUSSED IN THE OPINION OF THE
COURT.  THEREFORE, THE CASE IS NOT A BINDING PRECEDENT ON THIS POINT. 
(FN8)  EVEN AS TO OUR OWN JUDICIAL POWER OR JURISDICTION, THIS COURT
HAS FOLLOWED THE LEAD OF MR. CHIEF JUSTICE MARSHALL WHO HELD THAT THIS
COURT IS NOT BOUND BY A PRIOR EXERCISE OF JURISDICTION IN A CASE WHERE
IT WAS NOT QUESTIONED AND IT WAS PASSED SUB SILENTIO.  (FN9) 

THE QUESTION NOT BEING FORECLOSED BY PRECEDENT, WE HOLD THAT THE
DEFECT IN THE EXAMINER'S APPOINTMENT WAS AN IRREGULARITY WHICH WOULD
INVALIDATE A RESULTING ORDER IF THE COMMISSION HAD OVERRULED AN
APPROPRIATE OBJECTION MADE DURING THE HEARINGS.  BUT IT IS NOT ONE
WHICH DEPRIVES THE COMMISSION OF POWER OR JURISDICTION, SO THAT EVEN IN
THE ABSENCE OF TIMELY OBJECTION ITS ORDER SHOULD BE SET ASIDE AS A
NULLITY. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT
FOR DETERMINATION ON THE MERITS.  REVERSED. 

FN1  49 U.S.C. SEC. 307. 

FN2  5 U.S.C. SEC. 1010. 

FN3  100 F. SUPP. 432. 

FN4  OUR DECISION IN THE RISS CASE WAS ANNOUNCED AFTER THE
ADMINISTRATIVE PROCEEDING HEREIN, BUT BEFORE THE DISTRICT COURT'S
HEARING.  RISS APPARENTLY PROMPTED APPELLEE TO RAISE THE POINT ABOUT
THE EXAMINER'S QUALIFICATIONS IN THE DISTRICT COURT. 

FN5  SPILLER V. ATCHISON, T.&S.F.R. CO., 253 U.S. 117, 130; UNITED
STATES EX REL.  VAJTAUER V. COMMISSIONER, 273 U.S. 103, 113; UNITED
STATES V. NORTHERN PACIFIC R. CO., 288 U.S. 490, 494; UNEMPLOYMENT
COMPENSATION COMMISSION OF ALASKA V. ARAGON, 329 U.S. 143, 155. 

FN6  SECTION 9(A) OF THE SECURITIES ACT OF 1933, 15 U.S.C. SEC. 77I;
SEC. 25(A) OF THE SECURITIES EXCHANGE ACT OF 1934, 15 U.S.C. SEC. 78Y;
SEC. 24 OF THE PUBLIC UTILITY HOLDING COMPANY ACT, 15 U.S.C. SEC. 79X;
SEC. 10 OF THE FAIR LABOR STANDARDS ACT, 29 U.S.C. SEC. 210; SEC. 10(E)
OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. SEC. 160(E). 

FN7  THE GOVERNMENT INFORMS US THAT IN ABOUT FIVE THOUSAND CASES
COMMENCED AFTER THE EFFECTIVE DATE OF THE ADMINISTRATIVE PROCEDURE ACT,
ORDERS ARE FOR AN INDEFINITE PERIOD VULNERABLE TO ATTACK IF NO TIMELY
OBJECTION DURING THE ADMINISTRATIVE PROCESS IS REQUIRED.  THE POLICY OF
THE COMMISSION IS TO GRANT APPLICATION FOR REHEARING IN CASES WHERE
APPLICANT MADE THE OBJECTION BEFORE THE EXAMINER.  SINCE ITS
ESTABLISHED PRACTICE IS NOT TO CONSIDER ISSUES NOT RAISED BEFORE THE
EXAMINER, IT WILL REFUSE REHEARINGS IN OTHER CASES. 

FN8  WEBSTER V. FALL, 266 U.S. 507. 

FN9  UNITED STATES V. MORE, 3 CRANCH 159, 172; SNOW V. UNITED STATES,
118 U.S. 346, 354; CROSS V. BURKE, 146 U.S. 82, 87; LOUISVILLE TRUST
CO. V. KNOTT, 191 U.S. 225, 236; ARANT V. LANE, 245 U.S. 166, 170. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

WERE WE DISPENSING WHAT IS COMPLACENTLY CALLED ORIENTAL JUSTICE,
ACCORDING TO WHICH THE MERITS OF THE INDIVIDUAL CASE ALONE, SO ONE IS
TOLD, DETERMINE THE RESULT, I WOULD JOIN MY BRETHREN IN REVERSING THIS
JUDGMENT.   FOR I SEE NO REASON TO DISAGREE WITH THE COURT'S VIEW THAT
IN THIS CASE NON-COMPLIANCE BY THE INTERSTATE COMMERCE COMMISSION WITH
THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT DID NOT PREJUDICE
THE APPELLEE.  NOR DO I DENY THAT SOME RIGHTS PERSONAL TO A PARTY MAY
BE WAIVED, EITHER EXPLICITLY OR BY FAILURE TO ASSERT THEM. 

BUT I FIND NO EXPLICIT WAIVER HERE, NOR IS IT CLEAR TO ME HOW THE
APPELLEE CAN BE CHARGED WITH KNOWLEDGE OF THE OFFICIAL STATUS OF THE
EXAMINER ON THE BASIS OF WHOSE REPORT THE COMMISSION TOOK ACTION
ADVERSE TO IT.  IN ANY EVENT, THE REQUIREMENT OF THE ADMINISTRATIVE
PROCEDURE ACT THAT PROCEEDINGS WHICH LEAD TO AN ADMINISTRATIVE
ADJUDICATION MUST BE CONDUCTED BY AN INDEPENDENT HEARING EXAMINER IS
NOT SOMETHING PERSONAL TO A PARTY.  IT IS A REQUIREMENT DESIGNED TO
ASSURE CONFIDENCE IN THE ADMINISTRATIVE PROCESS BY DEFINING AND
LIMITING THE VARIOUS ORGANS THROUGH WHICH THAT PROCESS IS ALLOWED TO
FUNCTION. 

I DO NOT USE THE TERM "JURISDICTION" BECAUSE IT IS A VERBAL COAT OF
TOO MANY COLORS.  BUT WE ARE DEALING WITH LEGISLATION WHICH SOUGHT TO
REMEDY WHAT WERE BELIEVED TO BE EVILS IN THE WAY IN WHICH
ADMINISTRATIVE AGENCIES EXERCISED THEIR AUTHORITY PRIOR TO THE
ENACTMENT OF THE ADMINISTRATIVE PROCEDURE ACT OF JUNE 11, 1946.  THAT
ACT ACCORDINGLY PROHIBITED THE COMMINGLING OF THE CONFLICTING FUNCTIONS
EXERCISED BY THESE AGENCIES.  I DO SAY, THEREFORE, THAT IT CREATED
UNWAIVABLE LIMITATIONS UPON THE POWER OF THESE AGENCIES, AS MUCH SO AS
DO THE DEFINITIONS IN JUDICIARY ACTS OF THE DIFFERENT CATEGORIES OF
CASES WHICH DIFFERENT COURTS ARE EMPOWERED TO HEAR AND DECIDE.  THE
LIMITATIONS UPON THE POWER OF THE INTERSTATE COMMERCE COMMISSION TO
ACT, IMPOSED BY THE COMMAND THAT IT MUST DO SO ONLY IN ACCORDANCE WITH
THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT, ARE THUS NOT
WITHIN THE DISPENSING POWER OF ANY LITIGANT.  THEY BIND AND CONFINE THE
COMMISSION ITSELF. 

I CANNOT OTHERWISE READ WHAT WE DECIDED IN WONG YANG SUNG V. MCGRATH,
339 U.S. 33, AND RISS & CO., INC. V. UNITED STATES, 341 U.S. 907.  I DO
NOT REST MY CONCLUSION ON ANY ASSUMPTION OF JURISDICTION SUB SILENTIO
IN THE WONG YANG SUNG CASE.  WHAT I AM RESTING ON IS THE SIGNIFICANCE
WE ATTACHED TO THE REQUIREMENT OF INDEPENDENT HEARING EXAMINERS AS
INHERENT IN THE PROCESS OF ADMINISTRATIVE ADJUDICATION. 

AFTER WE DECIDED WONG YANG SUNG V. MCGRATH, SUPRA, CONGRESS WAS
PROMPTLY ASKED TO RELIEVE THE DEPORTATION PROCESS OF THIS REQUIREMENT
AND IT DID SO.  SEE CHAPTER III OF THE SUPPLEMENTAL APPROPRIATION ACT,
1951 (ACT OF SEPTEMBER 27, 1950, 64 STAT. 1044, 1047).  AFTER WE MADE
THE SAME RULING AS TO THE INTERSTATE COMMERCE COMMISSION, CONGRESS WAS
PROMPTLY ASKED TO VALIDATE PROCEEDINGS PREVIOUSLY CONDUCTED BY THE
COMMISSION IN DISREGARD OF THE REQUIREMENTS FOR INDEPENDENT HEARING
EXAMINERS.  CONGRESS HAS CHOSEN NOT TO ENACT SUCH REMEDIAL
LEGISLATION.  (FN1)  I DO NOT CONSTRUE THIS WANT OF ACTION AS
CONTROLLING UPON THE ISSUE BEFORE US.  I REFER TO THIS SUBSEQUENT
LEGISLATIVE HISTORY MERELY AS AN INDICATION OF THE PATH BY WHICH
UNDESIRABLE CONSEQUENCES FLOWING FROM OUR DECISION IN RISS & CO., INC.
V. UNITED STATES, SUPRA, MAY BE CORRECTED WITHOUT INJUSTICE. 
SITUATIONS LIKE THIS ARISE FROM TIME TO TIME WHEN DECISIONS OF THIS
COURT IN THE OBSERVANCE OF LAW SUGGEST CORRECTIVE LEGISLATION.  SEE,
E.G., UNITED STATES V. HEINSZEN & CO., 206 U.S. 370. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS DECISION GIVES A CAPRICIOUS TWIST TO THE LAW.  ONE WOULD ASSUME
FROM A READING OF THE OPINION IN WONG YANG SUNG V. MCGRATH, 339 U.S.
33, THAT THE FAILURE OF A FEDERAL AGENCY TO USE THE TYPE OF EXAMINER
PRESCRIBED BY CONGRESS IN THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT.
237, 5 U.S.C. SEC. 1001 ET SEQ., VITIATED THE PROCEEDINGS WHETHER
OBJECTION WAS RAISED OR NOT.  THE CONGRESS DECIDED TO SEPARATE THE
JUDICIAL FUNCTIONS OF EXAMINERS FROM THE INVESTIGATIVE AND PROSECUTING
FUNCTIONS.  IT REQUIRED THE SEPARATION IN CASES INVOLVING PROPERTY
INTERESTS AS WELL AS THOSE INVOLVING PERSONAL LIBERTY.  IT CONDEMNED AS
UNFAIR A PRACTICE WHICH HAD GROWN UP OF ALLOWING ONE MAN TO BE THE
POLICE OFFICER, THE PROSECUTOR, AND THE JUDGE.    VIOLATION OF THAT
REQUIREMENT LED THE COURT IN WONG YANG SUNG'S CASE TO ISSUE A WRIT OF
HABEAS CORPUS TO SAVE AN ALIEN FROM DEPORTATION WHERE THE HEARING
EXAMINER DID NOT MEET THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE
ACT.  THAT WAS A COLLATERAL ATTACK ON THE ADMINISTRATIVE PROCEEDING,
SUCCESSFULLY MADE EVEN THOUGH NO OBJECTION TO THE EXAMINER WAS RAISED
AT THE HEARING.*    *AND THE ALIEN IN THAT CASE, LIKE THE RESPONDENT
HERE, WAS REPRESENTED BY COUNSEL IN THE ADMINISTRATIVE PROCEEDINGS. 

THE OBJECTION RAISED IN THE PRESENT CASE LIKEWISE WAS NOT MADE AT THE
HEARING; BUT IT WAS MADE BEFORE REVIEW OF THE ORDER HAD BEEN
COMPLETED.  IT WOULD SEEM, THEREFORE, THAT REVERSAL OF THIS
ADMINISTRATIVE ORDER WOULD FOLLOW A FORTIORI FROM WONG YANG SUNG'S
CASE. 

NO ONE KNOWS HOW THE COMMINGLING OF POLICE, PROSECUTOR AND JUDICIAL
FUNCTIONS IN ONE PERSON MAY AFFECT A PARTICULAR DECISION.  IN SOME
SITUATIONS IT MIGHT MAKE NO DIFFERENCE; IN OTHERS IT MIGHT SUBTLY
CORRUPT THE ADMINISTRATIVE PROCESS.  THE ONLY IMPORTANT CONSIDERATION
FOR US IS THAT CONGRESS HAS CONDEMNED THE PRACTICE; AND WE AS
SUPERVISORS OF THE FEDERAL SYSTEM SHOULD SEE TO IT THAT THE LAW IS
ENFORCED, NOT SELECTIVELY BUT IN ALL CASES COMING BEFORE US. 

OF COURSE, AN AGENCY THAT FLOUTS THE MANDATE FOR FAIR EXAMINERS DOES
NOT LOSE JURISDICTION OF THE CASE.  EVEN HABEAS CORPUS IS NO LONGER
RESTRICTED TO THE TESTING OF "JURISDICTION" IN THE HISTORIC SENSE.  SEE
JOHNSON V. ZERBST, 304 U.S. 458, 467; BOWEN V. JOHNSTON, 306 U.S. 19,
24.  BUT THE ACTION OF THE COMMISSION IN THE PRESENT CASE CREATED AN
ERROR THAT PERMEATES THE ENTIRE PROCEEDING.  IT IS ERROR THAT GOES TO
THE VERY VITALS OF THE CASE.  I WOULD THEREFORE SET ASIDE THE ORDER AND
SEND THE CASE BACK FOR A HEARING THAT MEETS THE STATUTORY STANDARDS OF
FAIRNESS.  I WOULD MAKE THE RULE OF WONG YANG SUNG'S CASE GOOD FOR MORE
THAN THE DAY AND THE OCCASION. 
..END :













UNITED STATES V. BEACON BRASS CO., INC. 344 U.S. 43 


NO. 30.  ARGUED OCTOBER 23, 1952.  - DECIDED NOVEMBER 10, 1952.  - 106
F. SUPP. 510, REVERSED. 


A WILLFUL ATTEMPT TO EVADE OR DEFEAT TAXES BY MAKING FALSE STATEMENTS
TO TREASURY REPRESENTATIVES VIOLATES SEC. 145(B) OF THE INTERNAL
REVENUE CODE, 26 U.S.C. SEC. 145(B), AND IS NOT PUNISHABLE EXCLUSIVELY
UNDER SEC. 35(A) OF THE CRIMINAL CODE, 18 U.S.C. SEC.  1001, WHICH
OUTLAWS THE WILLFUL MAKING OF FALSE STATEMENTS "IN ANY MATTER" WITHIN
THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES.  PP.
43-47. 

UNITED STATES V. BEACON BRASS CO., INC. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

THE DISTRICT COURT DISMISSED AN INDICTMENT UNDER SEC. 145(B) OF THE
INTERNAL REVENUE CODE, 26 U.S.C. SEC. 145(B), ON THE GROUND THAT IF
FAILED TO CHARGE AN OFFENSE THEREUNDER.  106 F. SUPP. 510.   ON DIRECT
APPEAL TO THIS COURT UNDER 18 U.S.C. SEC. 3731, REVERSED, P. 47. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

ON MARCH 16, 1951, A ONE-COUNT INDICTMENT WAS RETURNED IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS AGAINST THE
APPELLEES, BEACON BRASS COMPANY, A CORPORATION, AND MAURICE FEINBERG,
ITS PRESIDENT AND TREASURER.  THE INDICTMENT CHARGED THAT IN VIOLATION
OF SEC. 145(B) OF THE INTERNAL REVENUE CODE, 40 STAT. 1085, AS AMENDED,
26 U.S.C. SEC. 145(B), THE APPELLEES HAD WILLFULLY ATTEMPTED TO EVADE
TAXES BY MAKING FALSE STATEMENTS TO TREASURY REPRESENTATIVES ON OCTOBER
24, 1945, "FOR THE PURPOSE OF SUPPORTING, RATIFYING, CONFIRMING AND
CONCEALING THE FRAUDULENT AND INCORRECT STATEMENTS AND REPRESENTATIONS
MADE IN THE CORPORATE TAX RETURN OF SAID BEACON BRASS CO., INC., FOR
THE FISCAL PERIOD ENDING OCTOBER 31, 1944, FILED ON OR ABOUT JANUARY 5,
1945  ...  ."  SECTION 145(B) PROVIDES IN PERTINENT PART: 

"ANY PERSON WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR DEFEAT
ANY TAX IMPOSED BY THIS CHAPTER OR THE PAYMENT THEREOF, SHALL, IN
ADDITION TO OTHER PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY  ...
." 

THE SIX-YEAR LIMITATION PERIOD, 43 STAT. 341, 342, AS AMENDED, 26
U.S.C. SEC. 3748(A)(2), APPLICABLE TO OFFENSES UNDER THIS STATUTE, HAD
EXPIRED ON A CHARGE FOR FILING A FALSE TAX RETURN IN JANUARY 1945, BUT
IT HAD NOT EXPIRED ON A CHARGE OF MAKING FALSE STATEMENTS TO TREASURY
EMPLOYEES IN OCTOBER 1945.  THE DISTRICT COURT VIEWED THE INDICTMENT AS
CHARGING THE SEPARATE CRIMES OF FILING A FALSE RETURN AND MAKING
SUBSEQUENT FALSE STATEMENTS TO TREASURY REPRESENTATIVES, AND DISMISSED
THE INDICTMENT AS DUPLICITOUS. 

ON SEPTEMBER 14, 1951, A SECOND INDICTMENT WAS RETURNED AGAINST THE
APPELLEES WHICH REPEATED THE CHARGE THAT IN VIOLATION OF SEC. 145(B)
THEY "DID WILFULLY AND KNOWINGLY ATTEMPT TO DEFEAT AND EVADE A LARGE
PART OF THE TAXES DUE AND OWING BY THE SAID CORPORATION  ...  BY MAKING
CERTAIN FALSE AND FRAUDULENT STATEMENTS AND REPRESENTATIONS, AT A
HEARING AND CONFERENCE BEFORE REPRESENTATIVES AND EMPLOYEES OF THE
UNITED STATES TREASURY DEPARTMENT, ON OR ABOUT OCTOBER 24, 1945  ...
."  REFERENCE TO THE ALLEGEDLY FALSE RETURN FILED IN JANUARY 1945 WAS
OMITTED, AND INSTEAD IT WAS CHARGED THAT THE FALSE STATEMENTS WERE MADE
"FOR THE PURPOSE OF CONCEALING ADDITIONAL UNREPORTED NET INCOME  ...
." 

(NOW 18 U.S.C. (SUPP.  V) SEC. 1001) MAKES IT UNLAWFUL TO "KNOWINGLY
AND WILLFULLY  ...  MAKE  ...  ANY FALSE OR FRAUDULENT STATEMENTS OR
REPRESENTATIONS ...  IN ANY MATTER WITHIN THE JURISDICTION OF ANY
DEPARTMENT OR AGENCY OF THE UNITED STATES  ...  ."  OBVIOUSLY, AT THE
TIMES OF THE INDICTMENTS HERE, THE THREE-YEAR LIMITATION PERIOD, 18
U.S.C. (SUPP. V) SEC. 3282, FOR VIOLATIONS OF THIS STATUTE HAD EXPIRED
AS TO STATEMENTS MADE IN OCTOBER 1945.  THE DISTRICT COURT CONCLUDED
THAT SINCE SEC. 35(A) DEALS SPECIFICALLY WITH FALSE STATEMENTS,
CONGRESS MUST BE PRESUMED TO HAVE INTENDED THAT THE MAKING OF FALSE
STATEMENTS SHOULD BE PUNISHABLE ONLY UNDER SEC. 35(A).  THEREFORE, THE
DISTRICT COURT DISMISSED THE INDICTMENT ON THE GROUND THAT IT FAILED TO
CHARGE AN OFFENSE UNDER 26 U.S.C. SEC. 145(B).  106 F. SUPP. 510.  WE
NOTED PROBABLE JURISDICTION OF THE UNITED STATES' APPEAL TAKEN UNDER
AUTHORITY OF 18 U.S.C. (SUPP. V) SEC. 3731. 

WE HAVE BEFORE US TWO STATUTES, EACH OF WHICH PROSCRIBES CONDUCT NOT
COVERED BY THE OTHER, BUT WHICH OVERLAP IN A NARROW AREA ILLUSTRATED BY
THE INSTANT CASE.  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. NOVECK, 273 U.S. 202, 206; GAVIERES V.
UNITED STATES, 220 U.S. 338.  UNLIKE SEC. 35(A), SEC. 145(B) REQUIRES
PROOF THAT THE FALSE STATEMENTS WERE MADE IN A WILLFUL EFFORT TO EVADE
TAXES.  THE PURPOSE TO EVADE TAXES IS CRUCIAL UNDER THIS SECTION.  THE
LANGUAGE OF SEC. 145(B) WHICH OUTLAWS WILLFUL ATTEMPTS TO EVADE TAXES
"IN ANY MANNER" IS CLEARLY BROAD ENOUGH TO INCLUDE FALSE STATEMENTS
MADE TO TREASURY REPRESENTATIVES FOR THE PURPOSE OF CONCEALING
UNREPORTED INCOME.  CF. SPIES V. UNITED STATES, 317 U.S. 492, 499.  THE
QUESTION RAISED BY THE DECISION BELOW IS WHETHER BY ENACTING A STATUTE
SPECIFICALLY OUTLAWING ALL FALSE STATEMENTS IN MATTERS UNDER THE
JURISDICTION OF AGENCIES OF THE UNITED STATES, CONGRESS INTENDED
THEREBY TO EXCLUDE THE MAKING OF FALSE STATEMENTS FROM THE SCOPE OF
SEC. 145(B). 

WE DO NOT BELIEVE THAT CONGRESS INTENDED TO REQUIRE THE TAX
ENFORCEMENT AUTHORITIES TO DEAL DIFFERENTLY WITH FALSE STATEMENTS THAN
WITH OTHER METHODS OF TAX EVASION.  BY PROVIDING THAT THE SANCTIONS OF
SEC. 145(B) SHOULD BE "IN ADDITION TO OTHER PENALTIES PROVIDED BY LAW,"
CONGRESS RECOGNIZED THAT SOME METHODS OF ATTEMPTING TO EVADE TAXES
WOULD VIOLATE OTHER STATUTES AS WELL.  SEE TAYLOR V. UNITED STATES, 179
F.2D 640, 644.  MOREOVER, SINCE NO DISTINCTION IS MADE IN SEC. 35(A)
BETWEEN WRITTEN AND ORAL STATEMENTS, THE REASONING OF THE COURT BELOW
WOULD BE EQUALLY APPLICABLE TO FALSE TAX RETURNS WHICH ARE, OF COURSE,
FALSE WRITTEN STATEMENTS.  BUT THE COURTS OF APPEALS HAVE UNIFORMLY
APPLIED SEC. 145(B) TO ATTEMPTS TO EVADE TAXES BY FILING FALSE
RETURNS.  E.G., GAUNT V. UNITED STATES, 184 F.2D 284, 288; TAYLOR V.
UNITED STATES, SUPRA, AT 643-644.  FURTHER SUPPORT FOR OUR CONCLUSION
CAN BE FOUND IN UNITED STATES V. NOVECK, SUPRA, WHERE THIS COURT
REJECTED THE CONTENTION THAT THE ENACTMENT OF SEC. 145(B) IMPLIEDLY
REPEALED THE GENERAL PERJURY STATUTE INSOFAR AS THAT STATUTE APPLIED TO
FALSE TAX RETURNS MADE UNDER OATH.  CF. UNITED STATES V. GILLILAND, 312
U.S. 86, 93, 95-96.  FINALLY, THE ENACTMENT OF OTHER STATUTES EXPRESSLY
OUTLAWING FALSE STATEMENTS IN PARTICULAR CONTEXTS, E.G., 18 U.S.C.
(SUPP. V) SECS. 1010, 1014, NEGATES THE ASSUMPTION - WHICH WAS THE
FOUNDATION OF THE DECISION OF THE COURT BELOW - THAT CONGRESS INTENDED
THE MAKING OF FALSE STATEMENTS TO BE PUNISHABLE ONLY UNDER SEC. 35(A). 

THE APPELLEES CONTEND THAT THE ACTS CHARGED CONSTITUTE ONLY ONE CRIME
OF TAX EVASION WHICH WAS COMPLETE WHEN THE ALLEGEDLY FALSE TAX RETURN
WAS FILED.  ON THE BASIS OF THIS CONTENTION, APPELLEES SEEK TO SUSTAIN
THE DECISION BELOW ON THE GROUNDS THAT THE SIX-YEAR STATUTE OF
LIMITATIONS HAD RUN, AND THAT THE DISMISSAL OF THE FIRST INDICTMENT IS
RES JUDICATA AND A BAR TO THE SECOND INDICTMENT FOR THE SAME OFFENSE. 
WE DO NOT CONSIDER THESE QUESTIONS BECAUSE OUR JURISDICTION ON THIS
APPEAL IS LIMITED TO REVIEW OF THE DISTRICT COURT'S CONSTRUCTION OF THE
STATUTE IN THE LIGHT OF THE FACTS ALLEGED IN THE INDICTMENT.  18 U.S.C.
(SUPP. V) SEC. 3731; UNITED STATES V. BORDEN CO., 308 U.S. 188, 206
207. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED, AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE DISTRICT COURT REACHED
THE RIGHT RESULT AND WOULD AFFIRM ITS JUDGMENT. 
..END :






















CIVIL AERONAUTICS BOARD V. AMERICAN AIR TRANSPORT, INC. 344 U.S. 4 


NO. 126.  CERTIFICATE DISMISSED OCTOBER 20, 1952. 


A CERTIFICATE OF THE COURT OF APPEALS CERTIFYING TO THIS COURT, UNDER
28 U.S.C. SEC.  1254(3), QUESTIONS CONCERNING THE VALIDITY OF A
REGULATION OF THE CIVIL AERONAUTICS BOARD IS DISMISSED ON THE AUTHORITY
OF CASES CITED IN THE OPINION; AND AN APPLICATION OF THE BOARD FOR AN
ORDER REQUIRING THE COURT OF APPEALS TO SEND UP THE ENTIRE RECORD, THUS
BRINGING UP "THE ENTIRE MATTER IN CONTROVERSY" FOR DECISION, IS
DENIED.  PP. 4-5. 

CIVIL AERONAUTICS BOARD ET AL. V. AMERICAN AIR TRANSPORT, INC. ET AL. 

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT. 

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ENJOINED ENFORCEMENT OF A REGULATION OF THE CIVIL AERONAUTICS BOARD
UNLESS AND UNTIL PLAINTIFFS WERE AFFORDED "A FULL AND FAIR EVIDENTIARY
HEARING WITH RESPECT THERETO."  SEE 98 F. SUPP. 660.  ON APPEAL TO THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT,
THREE JUDGES WERE UNABLE TO AGREE ON A DISPOSITION OF THE CASE AND
CERTIFIED TO THIS COURT QUESTIONS CONCERNING THE VALIDITY OF THE
REGULATION.  THE CIVIL AERONAUTICS BOARD APPLIED TO THIS COURT UNDER
RULE 37(2) OF THE RULES OF THIS COURT FOR AN ORDER REQUIRING THE COURT
OF APPEALS TO SEND UP THE ENTIRE RECORD.  CERTIFICATE DISMISSED AND
ORDER DENIED, PP. 4-5. 

PER CURIAM. 

THE CERTIFICATE IS DISMISSED.  LABOR BOARD V. WHITE SWAN CO., 313
U.S. 23 (1941); LOWDEN V. NORTHWESTERN NATIONAL BANK & TRUST CO., 298
U.S. 160 (1936); WHITE V. JOHNSON, 282 U.S. 367 (1931); UNITED STATES
V. UNION PACIFIC R. CO., 168 U.S. 505 (1897). 

THE CIVIL AERONAUTICS BOARD HAS APPLIED TO THIS COURT FOR AN ORDER
REQUIRING THE COURT OF APPEALS TO SEND UP THE ENTIRE RECORD.  TO GRANT
SUCH AN APPLICATION WOULD BRING "THE ENTIRE MATTER IN CONTROVERSY"
BEFORE THE COURT FOR DECISION.  28 U.S.C. SEC. 1254(3). 

SINCE THE CERTIFICATE MUST BE DISMISSED, THE COURT SHOULD NOT
EXERCISE ITS DISCRETIONARY POWER TO BRING UP "THE ENTIRE MATTER IN
CONTROVERSY" FOR REVIEW.  SEE CLEVELAND-CLIFFS IRON CO. V. ARCTIC IRON
CO., 248 U.S. 178 (1918).  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.  THIS COURT DOES
NOT NORMALLY REVIEW ORDERS OF ADMINISTRATIVE AGENCIES IN THE FIRST
INSTANCE; AND THE COURT DOES NOT DESIRE TO TAKE ANY ACTION AT THIS TIME
WHICH MIGHT FORECLOSE THE POSSIBILITY OF SUCH REVIEW IN THE COURT OF
APPEALS. 

FOR THESE REASONS THE BOARD'S APPLICATION IS DENIED. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :


















BROWN V. BOARD OF EDUCATION OF TOPEKA 344 U.S. 1 


NO. 8.  OCTOBER 8, 1952. 


IN TWO CASES SET FOR ARGUMENT IN OCTOBER, LAWS OF KANSAS AND SOUTH
CAROLINA PROVIDING FOR RACIAL SEGREGATION IN PUBLIC SCHOOLS WERE
CHALLENGED AS VIOLATIVE OF THE FOURTEENTH AMENDMENT.  IN ANOTHER CASE
RAISING THE SAME QUESTION WITH RESPECT TO LAWS OF VIRGINIA, APPELLANTS
HAD FILED A STATEMENT OF JURISDICTION AND A MOTION REQUESTING THAT ALL
THREE CASES BE ARGUED TOGETHER.  THERE WAS PENDING IN THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT A CASE IN WHICH
SEGREGATION IN PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA WAS
CHALLENGED AS VIOLATIVE OF THE FIFTH AMENDMENT.  HELD: 

1.  THE KANSAS AND SOUTH CAROLINA CASES ARE CONTINUED ON THE DOCKET;
PROBABLE JURISDICTION IS NOTED IN THE VIRGINIA CASE; AND ARGUMENTS IN
ALL THREE WILL BE HEARD IN DECEMBER.  PP. 2-3. 

2.  JUDICIAL NOTICE IS TAKEN OF THE PENDENCY OF THE DISTRICT OF
COLUMBIA CASE.  THE COURT WILL ENTERTAIN A PETITION FOR CERTIORARI IN
THAT CASE, WHICH, IF PRESENTED AND GRANTED, WILL AFFORD OPPORTUNITY FOR
ARGUMENT OF THAT CASE IMMEDIATELY FOLLOWING ARGUMENTS IN THE OTHER
THREE CASES.  P. 3.

BROWN ET AL. V. BOARD OF EDUCATION OF TOPEKA ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS.* 

*TOGETHER WITH NO. 101, BRIGGS ET AL. V. ELLIOTT ET AL., MEMBERS OF
BOARD OF TRUSTEES OF SCHOOL DISTRICT #22, ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF SOUTH CAROLINA; AND
NO. 191, DAVIS ET AL. V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY ET
AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA. 

PER CURIAM. 

IN TWO APPEALS NOW PENDING, NO. 8, BROWN ET AL. V. BOARD OF EDUCATION
OF TOPEKA ET AL., AND NO. 101, BRIGGS ET AL. V. ELLIOTT ET AL., THE
APPELLANTS CHALLENGE, RESPECTIVELY, THE CONSTITUTIONALITY OF A STATUTE
OF KANSAS, AND A STATUTE AND THE CONSTITUTION OF SOUTH CAROLINA, WHICH
PROVIDE FOR SEGREGATION IN THE SCHOOLS OF THESE STATES.  APPELLANTS
ALLEGE THAT SEGREGATION IS, PER SE, A VIOLATION OF THE FOURTEENTH
AMENDMENT.  ARGUMENT IN THESE CASES HAS HERETOFORE BEEN SET FOR THE
WEEK OF OCTOBER 13, 1952. 

IN NO. 191, DAVIS ET AL. V. COUNTY SCHOOL BOARD OF PRINCE EDWARD
COUNTY ET AL., THE APPELLANTS HAVE FILED A STATEMENT OF JURISDICTION
RAISING THE SAME ISSUE IN RESPECT TO A STATUTE AND THE CONSTITUTION OF
VIRGINIA.  APPELLEES IN THE DAVIS CASE HAVE CALLED ATTENTION TO THE
SIMILARILY BETWEEN IT AND THE BRIGGS AND BROWN CASES; BY MOTION THEY
HAVE ASKED THE COURT TO TAKE NECESSARY ACTION TO HAVE ALL THREE CASES
ARGUED TOGETHER. 

THIS COURT TAKES JUDICIAL NOTICE OF A FOURTH CASE, WHICH IS PENDING
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT, BOLLING ET AL. V. SHARPE ET AL., NO. 11,018 ON THAT COURT'S
DOCKET.  IN THAT CASE, THE APPELLANTS CHALLENGE THE APPELLEES' REFUSAL
TO ADMIT CERTAIN NEGRO APPELLANTS TO A SEGREGATED WHITE SCHOOL IN THE
DISTRICT OF COLUMBIA; THEY ALLEGE THAT APPELLEES HAVE TAKEN SUCH ACTION
PURSUANT TO CERTAIN ACTS OF CONGRESS; THEY ALLEGE THAT SUCH ACTION IS A
VIOLATION OF THE FIFTH AMENDMENT OF THE CONSTITUTION. 

THE COURT IS OF THE OPINION THAT THE NATURE OF THE ISSUE POSED IN
THOSE APPEALS NOW BEFORE THE COURT INVOLVING THE FOURTEENTH AMENDMENT,
AND ALSO THE EFFECT OF ANY DECISION WHICH IT MAY RENDER IN THOSE CASES,
ARE SUCH THAT IT WOULD BE WELL TO CONSIDER, SIMULTANEOUSLY, THE
CONSTITUTIONAL ISSUE POSED IN THE CASE OF BOLLING ET AL. V. SHARPE ET
AL. 

TO THE END THAT ARGUMENTS MAY BE HEARD TOGETHER IN ALL FOUR OF THESE
CASES, THE COURT WILL CONTINUE THE BROWN AND BRIGGS CASES ON ITS
DOCKET.  PROBABLE JURISDICTION IS NOTED IN DAVIS ET AL. V. COUNTY
SCHOOL BOARD OF PRINCE EDWARD COUNTY ET AL. ARGUMENTS WILL BE HEARD IN
THESE THREE CASES AT THE FIRST ARGUMENT SESSION IN DECEMBER. 

THE COURT WILL ENTERTAIN A PETITION FOR CERTIORARI IN THE CASE OF
BOLLING ET AL. V. SHARPE ET AL., 28 U.S.C. SECS. 1254(1), 2101(E),
WHICH IF PRESENTED AND GRANTED WILL AFFORD OPPORTUNITY FOR ARGUMENT OF
THE CASE IMMEDIATELY FOLLOWING THE ARGUMENTS IN THE THREE APPEALS NOW
PENDING.  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS DISSENTS FROM POSTPONING ARGUMENT AND DECISION IN
THE THREE CASES PRESENTLY HERE FOR BOLLING ET AL. V. SHARPE ET AL., IN
THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT. 
..END :








BROTHERHOOD OF RAILROAD TRAINMEN V. HOWARD 343 U.S. 768 


NO. 458.  ARGUED APRIL 22, 1952 - DECIDED JUNE 9, 1952 - 191 F.2D 442,
AFFIRMED. 


PETITIONER UNION IS AN EXCLUSIVELY WHITE UNION WHICH ACTS UNDER THE
RAILWAY LABOR ACT AS BARGAINING REPRESENTATIVE FOR RAILROAD TRAINMEN. 
BY THREAT OF A STRIKE, IT FORCED PETITIONER RAILROAD TO AGREE NOT TO
PERMIT NEGRO "TRAIN PORTERS" TO PERFORM ANY OF THE DUTIES OF BRAKEMEN. 
AS A RESULT, THE RAILROAD TOOK STEPS TO DISCHARGE NEGRO "TRAIN PORTERS"
AND REPLACE THEM WITH WHITE BRAKEMEN.  RESPONDENT, A MEMBER OF THE
GROUP OF NEGRO "TRAIN PORTERS" WHO FOR MANY YEARS HAD SATISFACTORILY
PERFORMED THE DUTIES OF BRAKEMEN AND HAD THEIR OWN SEPARATE UNION AS
THEIR BARGAINING REPRESENTATIVE, BROUGHT A CLASS SUIT IN A FEDERAL
DISTRICT COURT FOR A JUDGMENT DECLARING THE AGREEMENT VOID AND
ENJOINING THE RAILROAD FROM CARRYING IT OUT.  HELD: 

1.  THE RAILWAY LABOR ACT PROHIBITS BARGAINING AGENTS WHO ENJOY THE
ADVANTAGES OF ITS PROVISIONS FROM USING THEIR POSITION AND POWER TO
DESTROY NEGRO WORKERS' JOBS IN ORDER TO BESTOW THEM ON WHITE WORKERS. 
STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192.  PP.  769-774. 

2.  THE DISTRICT COURT HAS THE JURISDICTION AND POWER TO ISSUE THE
INJUNCTION NECESSARY TO PROTECT THESE NEGRO WORKERS FROM THE RACIAL
DISCRIMINATION PRACTICED AGAINST THEM.  PP. 744-775. 

(A)  SINCE THIS DISPUTE INVOLVES THE VALIDITY OF A CONTRACT, NOT ITS
MEANING, IT CANNOT BE RESOLVED BY INTERPRETATION OF A BARGAINING
AGREEMENT SO AS TO GIVE EXCLUSIVE JURISDICTION TO THE RAILWAY
ADJUSTMENT BOARD UNDER SLOCUM V. DELAWARE, L.&W.R. CO., 339 U.S. 239. 
P. 774. 

(B)  NOR DOES THIS DISPUTE HINGE ON THE PROPER CRAFT CLASSIFICATION
OF THE "TRAIN PORTERS" SO AS TO CALL FOR SETTLEMENT BY THE NATIONAL
MEDIATION BOARD UNDER SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD,
320 U.S. 297.  P. 774. 

(C)  NOR IS THE ISSUANCE OF AN INJUNCTION IN THIS CASE PROHIBITED BY
THE NORRIS-LAGUARDIA ACT.  STEELE V. LOUISVILLE & N.R. CO., 323 U.S.
192; GRAHAM V. BROTHERHOOD OF FIREMEN, 338 U.S. 232.  P. 774. 

3.  ON REMAND, THE DISTRICT COURT SHOULD PERMANENTLY ENJOIN THE
PETITIONER UNION AND RAILROAD FROM USE OF THE CONTRACT OR ANY OTHER
SIMILAR DISCRIMINATORY BARGAINING DEVICE TO OUST THE NEGRO "TRAIN
PORTERS" FROM THEIR JOBS.  P. 775. 

BROTHERHOOD OF RAILROAD TRAINMEN ET AL. V. HOWARD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

IN A SUIT TO ENJOIN ENFORCEMENT OF A BARGAINING AGREEMENT BETWEEN A
RAILROAD AND A TRAINMEN'S UNION ON THE GROUND THAT IT DISCRIMINATED
AGAINST NEGRO "TRAIN PORTERS," THE DISTRICT COURT DENIED MOST OF THE
RELIEF PRAYED FOR, ON THE GROUND THAT THE NATIONAL MEDIATION BOARD AND
THE NATIONAL RAILROAD ADJUSTMENT BOARD HAD EXCLUSIVE JURISDICTION OF
THE DISPUTE UNDER THE RAILWAY LABOR ACT.  72 F. SUPP. 695.  THE COURT
OF APPEALS REVERSED THIS HOLDING.  191 F.2D 442.  THIS COURT GRANTED
CERTIORARI.  342 U.S. 940.  AFFIRMED AND REMANDED TO THE DISTRICT
COURT, P. 775. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS CONCERNING THE POWER OF COURTS TO PROTECT
NEGRO RAILROAD EMPLOYEES FROM LOSS OF THEIR JOBS UNDER COMPULSION OF A
BARGAINING AGREEMENT WHICH, TO AVOID A STRIKE, THE RAILROAD MADE WITH
AN EXCLUSIVELY WHITE MAN'S UNION.  RESPONDENT SIMON HOWARD, A FRISCO
(FN1) TRAIN EMPLOYEE FOR NEARLY FORTY YEARS, BROUGHT THIS ACTION ON
BEHALF OF HIMSELF AND OTHER COLORED EMPLOYEES SIMILARLY SITUATED. 

IN SUMMARY THE COMPLAINT ALLEGED:  NEGRO EMPLOYEES SUCH AS RESPONDENT
CONSTITUTED A GROUP CALLED "TRAIN PORTERS" ALTHOUGH THEY ACTUALLY
PERFORMED ALL THE DUTIES OF WHITE "BRAKEMEN"; THE BROTHERHOOD OF
RAILROAD TRAINMEN, BARGAINING REPRESENTATIVE OF "BRAKEMEN" UNDER THE
RAILWAY LABOR ACT, (FN2) HAD FOR YEARS USED ITS INFLUENCE IN AN ATTEMPT
TO ELIMINATE NEGRO TRAINMEN AND GET THEIR JOBS FOR WHITE MEN WHO,
UNLIKE COLORED "TRAIN PORTERS," WERE OR COULD BE MEMBERS OF THE
BROTHERHOOD; ON MARCH 7, 1946, THE BROTHERHOOD FINALLY FORCED THE
FRISCO TO AGREE TO DISCHARGE THE COLORED "TRAIN PORTERS" AND FILL THEIR
JOBS WITH WHITE MEN WHO, UNDER THE AGREEMENT, WOULD DO LESS WORK BUT
GET MORE PAY.  THE COMPLAINT CHARGED THAT THE BROTHERHOOD'S
"DISCRIMINATORY ACTION" VIOLATED THE TRAIN PORTERS' RIGHTS UNDER THE
RAILWAY LABOR ACT AND UNDER THE CONSTITUTION; THAT THE AGREEMENT WAS
VOID BECAUSE AGAINST PUBLIC POLICY, PREJUDICIAL TO THE PUBLIC INTEREST,
AND DESIGNED TO DEPRIVE NEGRO TRAINMEN OF THEIR RIGHT TO EARN A
LIVELIHOOD BECAUSE OF THEIR RACE OR COLOR.  THE PRAYERS WERE THAT THE
COURT ADJUDGE AND DECREE THAT THE CONTRACT WAS VOID AND UNENFORCEABLE
FOR THE REASONS STATED; THAT THE RAILROAD BE "ENJOINED FROM
DISCONTINUING THE JOBS KNOWN AS TRAIN PORTERS" AND "FROM HIRING WHITE
BRAKEMEN TO REPLACE OR DISPLACE PLAINTIFF AND OTHER TRAIN PORTERS AS
PLANNED IN ACCORDANCE WITH SAID AGREEMENT." 

THE FACTS AS FOUND BY THE DISTRICT COURT, AFFIRMED WITH EMPHASIS BY
THE COURT OF APPEALS, SUBSTANTIALLY ESTABLISHED THE TRUTH OF THE
COMPLAINT'S MATERIAL ALLEGATIONS.  THESE FACTS SHOWED THAT THE NEGRO
TRAIN PORTERS HAD FOR A GREAT MANY YEARS SERVED THE RAILROAD WITH
LOYALTY, INTEGRITY AND EFFICIENCY; THAT "TRAIN PORTERS" DO ALL THE WORK
OF BRAKEMEN; (FN3) THAT THE GOVERNMENT ADMINISTRATOR OF RAILROADS
DURING WORLD WAR I HAD CLASSIFIED THEM AS BRAKEMEN AND HAD REQUIRED
THAT THEY BE PAID JUST LIKE WHITE BRAKEMEN; THAT WHEN THE RAILROADS
WENT BACK TO THEIR OWNERS, THEY REDESIGNATED THESE COLORED BRAKEMEN AS
"TRAIN PORTERS," "LEFT THEIR DUTIES UNTOUCHED," AND FORCED THEM TO
ACCEPT WAGES FAR BELOW THOSE OF WHITE "BRAKEMEN" WHO WERE BROTHERHOOD
MEMBERS; THAT FOR MORE THAN A QUARTER OF A CENTURY THE BROTHERHOOD AND
OTHER EXCLUSIVELY WHITE RAIL UNIONS HAD CONTINUALLY CARRIED ON A
PROGRAM OF AGGRESSIVE HOSTILITY TO EMPLOYMENT OF NEGROES FOR TRAIN,
ENGINE AND YARD SERVICE; THAT THE AGREEMENT OF MARCH 7, 1946, HERE
UNDER ATTACK, PROVIDES THAT TRAIN PORTERS SHALL NO LONGER DO ANY WORK
"GENERALLY RECOGNIZED AS BRAKEMAN'S DUTIES"; THAT WHILE THIS AGREEMENT
DID NOT IN EXPRESS WORDS COMPEL DISCHARGE OF "TRAIN PORTERS," THE
ECONOMIC UNSOUNDNESS OF KEEPING THEM AFTER TRANSFER OF THEIR "BRAKEMEN"
FUNCTIONS MADE COMPLETE ABOLITION OF THE "TRAIN PORTER" GROUP
INEVITABLE; THAT TWO DAYS AFTER "THE CARRIERS RELUCTANTLY, AND AS A
RESULT OF THE STRIKE THREATS" SIGNED THE AGREEMENT, THEY NOTIFIED TRAIN
PORTERS THAT "UNDER THIS AGREEMENT WE WILL, EFFECTIVE APRIL 1, 1946,
DISCONTINUE ALL TRAIN PORTER POSITIONS."  ACCORDINGLY, RESPONDENT
HOWARD, AND OTHERS, WERE PERSONALLY NOTIFIED TO TURN IN THEIR SWITCH
KEYS, LANTERNS, MARKERS AND OTHER BRAKEMEN'S EQUIPMENT, AND NOTICES OF
JOB VACANCIES WERE POSTED TO BE BID IN BY WHITE BRAKEMEN ONLY. 

THE DISTRICT COURT HELD THAT THE COMPLAINT RAISED QUESTIONS WHICH
CONGRESS BY THE RAILWAY LABOR ACT HAD MADE SUBJECT TO THE EXCLUSIVE
JURISDICTION OF THE NATIONAL MEDIATION BOARD AND THE NATIONAL RAILROAD
ADJUSTMENT BOARD.  72 F. SUPP. 695.  THE COURT OF APPEALS REVERSED THIS
HOLDING.  (FN4)  IT HELD THAT THE AGREEMENT, AS CONSTRUED AND ACTED
UPON BY THE RAILROAD, WAS AN "ATTEMPTED PREDATORY APPROPRIATION" OF THE
"TRAIN PORTERS'" JOBS, AND WAS TO THIS EXTENT ILLEGAL AND
UNENFORCEABLE.  IT THEREFORE ORDERED THAT THE RAILROAD MUST KEEP THE
"TRAIN PORTERS" AS EMPLOYEES; IT PERMITTED THE RAILROAD AND THE
BROTHERHOOD TO TREAT THE CONTRACT AS VALID ON CONDITION THAT THE
RAILROAD WOULD RECOGNIZE THE COLORED "TRAIN PORTERS" AS MEMBERS OF THE
CRAFT OF "BRAKEMEN" AND THAT THE BROTHERHOOD WOULD FAIRLY REPRESENT
THEM AS SUCH.  191 F.2D 442.  WE GRANTED CERTIORARI.  342 U.S. 940. 

WHILE DIFFERENT IN SOME RESPECTS, THE BASIC PATTERN OF RACIAL
DISCRIMINATION IN THIS CASE IS MUCH THE SAME AS THAT WE HAD TO CONSIDER
IN STEELE V. L.&N.R. CO., 323 U.S. 192.  IN THIS CASE, AS WAS CHARGED
IN THE STEELE CASE, A BROTHERHOOD ACTING AS A BARGAINING AGENT UNDER
THE RAILWAY LABOR ACT HAS BEEN HOSTILE TO NEGRO EMPLOYEES, HAS
DISCRIMINATED AGAINST THEM, AND HAS FORCED THE RAILROAD TO MAKE A
CONTRACT WHICH WOULD HELP BROTHERHOOD MEMBERS TAKE OVER THE JOBS OF THE
COLORED "TRAIN PORTERS." 

THERE IS A DIFFERENCE IN THE CIRCUMSTANCES OF THE TWO CASES, HOWEVER,
WHICH IT IS CONTENDED REQUIRES US TO DENY THE JUDICIAL REMEDY HERE THAT
WAS ACCORDED IN THE STEELE CASE.  THAT DIFFERENCE IS THIS:  STEELE WAS
ADMITTEDLY A LOCOMOTIVE FIREMAN ALTHOUGH NOT A MEMBER OF THE
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN WHICH UNDER THE RAILWAY
LABOR ACT WAS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE ENTIRE
CRAFT OF FIREMEN.  WE HELD THAT THE LANGUAGE OF THE ACT IMPOSED A DUTY
ON THE CRAFT BARGAINING REPRESENTATIVE TO EXERCISE THE POWER CONFERRED
UPON IT IN BEHALF OF ALL THOSE FOR WHOM IT ACTS, WITHOUT HOSTILE
DISCRIMINATION AGAINST ANY OF THEM.  FAILURE TO EXERCISE THIS DUTY WAS
HELD TO GIVE RISE TO A CAUSE OF ACTION UNDER THE ACT.  IN THIS CASE,
UNLIKE THE STEELE CASE, THE COLORED EMPLOYEES HAVE FOR MANY YEARS BEEN
TREATED BY THE CARRIERS AND THE BROTHERHOOD AS A SEPARATE CLASS FOR
REPRESENTATION PURPOSES AND HAVE IN FACT BEEN REPRESENTED BY ANOTHER
UNION OF THEIR OWN CHOOSING.  SINCE THE BROTHERHOOD HAS DISCRIMINATED
AGAINST "TRAIN PORTERS" INSTEAD OF MINORITY MEMBERS OF ITS OWN "CRAFT,"
IT IS ARGUED THAT THE BROTHERHOOD OWED NO DUTY AT ALL TO REFRAIN FROM
USING ITS STATUTORY BARGAINING POWER SO AS TO ABOLISH THE JOBS OF THE
COLORED PORTERS AND DRIVE THEM FROM THE RAILROADS.  WE THINK THIS
ARGUMENT IS UNSOUND AND THAT THE OPINION IN THE STEELE CASE POINTS TO A
BREACH OF STATUTORY DUTY BY THIS BROTHERHOOD. 

AS PREVIOUSLY NOTED, THESE TRAIN PORTERS ARE THREATENED WITH LOSS OF
THEIR JOBS BECAUSE THEY ARE NOT WHITE AND FOR NO OTHER REASON.  THE JOB
THEY DID HOLD UNDER ITS OLD NAME WOULD BE ABOLISHED BY THE AGREEMENT;
THEIR COLOR ALONE WOULD DISQUALIFY THEM FROM THE OLD JOB UNDER ITS NEW
NAME.  THE END RESULT OF THESE TRANSACTIONS IS NOT IN DOUBT; FOR
PRECISELY THE SAME REASONS AS IN THE STEELE CASE "DISCRIMINATIONS BASED
ON RACE ALONE ARE OBVIOUSLY IRRELEVANT AND INVIDIOUS.  CONGRESS PLAINLY
DID NOT UNDERTAKE TO AUTHORIZE THE BARGAINING REPRESENTATIVE TO MAKE
SUCH DISCRIMINATIONS."  STEELE V. L.&N.R. CO., SUPRA, AT 203, AND CASES
THERE CITED.  CF. SHELLEY V. KRAEMER, 334 U.S. 1.  THE FEDERAL ACT THUS
PROHIBITS BARGAINING AGENTS IT AUTHORIZES FROM USING THEIR POSITION AND
POWER TO DESTROY COLORED WORKERS' JOBS IN ORDER TO BESTOW THEM ON WHITE
WORKERS.  AND COURTS CAN PROTECT THOSE THREATENED BY SUCH AN UNLAWFUL
USE OF POWER GRANTED BY A FEDERAL ACT. 

HERE, AS IN THE STEELE CASE, COLORED WORKERS MUST LOOK TO A JUDICIAL
REMEDY TO PREVENT THE SACRIFICE OR OBLITERATION OF THEIR RIGHTS UNDER
THE ACT.  FOR NO ADEQUATE ADMINISTRATIVE REMEDY CAN BE AFFORDED BY THE
NATIONAL RAILROAD ADJUSTMENT OR MEDIATION BOARD.  THE CLAIMS HERE
CANNOT BE RESOLVED BY INTERPRETATION OF A BARGAINING AGREEMENT SO AS TO
GIVE JURISDICTION TO THE ADJUSTMENT BOARD UNDER OUR HOLDING IN SLOCUM
V. DELAWARE, L.&W.R. CO., 339 U.S. 239.  THIS DISPUTE INVOLVES THE
VALIDITY OF THE CONTRACT, NOT ITS MEANING.  NOR DOES THE DISPUTE HINGE
ON THE PROPER CRAFT CLASSIFICATION OF THE PORTERS SO AS TO CALL FOR
SETTLEMENT BY THE NATIONAL MEDIATION BOARD UNDER OUR HOLDING IN
SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297.  FOR THE
CONTENTION HERE WITH WHICH WE AGREE IS THAT THE RACIAL DISCRIMINATION
PRACTICED IS UNLAWFUL, WHETHER COLORED EMPLOYEES ARE CLASSIFIED AS
"TRAIN PORTERS," "BRAKEMEN," OR SOMETHING ELSE.  OUR CONCLUSION IS THAT
THE DISTRICT COURT HAS JURISDICTION AND POWER TO ISSUE NECESSARY
INJUNCTIVE ORDERS NOTWITHSTANDING THE PROVISIONS OF THE NORRIS
LAGUARDIA ACT.  (FN5)  WE NEED ADD NOTHING TO WHAT WAS SAID ABOUT
INAPPLICABILITY OF THAT ACT IN THE STEELE CASE AND IN GRAHAM V.
BROTHERHOOD OF FIREMEN, 338 U.S. 232, 239-240. 

BARGAINING AGENTS WHO ENJOY THE ADVANTAGES OF THE RAILWAY LABOR ACT'S
PROVISIONS MUST EXECUTE THEIR TRUST WITHOUT LAWLESS INVASIONS OF THE
RIGHTS OF OTHER WORKERS.  WE AGREE WITH THE COURT OF APPEALS THAT THE
DISTRICT COURT HAD JURISDICTION TO PROTECT THESE WORKERS FROM THE
RACIAL DISCRIMINATION PRACTICED AGAINST THEM.  ON REMAND, THE DISTRICT
COURT SHOULD PERMANENTLY ENJOIN THE RAILROAD AND THE BROTHERHOOD FROM
USE OF THE CONTRACT OR ANY OTHER SIMILAR DISCRIMINATORY BARGAINING
DEVICE TO OUST THE TRAIN PORTERS FROM THEIR JOBS.  IN FASHIONING ITS
DECREE THE DISTRICT COURT IS LEFT FREE TO CONSIDER WHAT PROVISIONS ARE
NECESSARY TO AFFORD THESE EMPLOYEES FULL PROTECTION FROM FUTURE
DISCRIMINATORY PRACTICES OF THE BROTHERHOOD.  HOWEVER, IN DRAWING ITS
DECREE, THE DISTRICT COURT MUST BEAR IN MIND THAT DISPUTED QUESTIONS OF
RECLASSIFICATION OF THE CRAFT OF "TRAIN PORTERS" ARE COMMITTED BY THE
RAILWAY LABOR ACT TO THE NATIONAL MEDIATION BOARD.  SWITCHMEN'S UNION
V. NATIONAL MEDIATION BOARD, SUPRA. 

THE JUDGMENT OF THE COURT OF APPEALS REVERSING THAT OF THE DISTRICT
COURT IS AFFIRMED, AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY AND ITS SUBSIDIARY ST.
LOUIS-SAN FRANCISCO & TEXAS RAILWAY COMPANY. 

FN2  44 STAT. 577, AS AMENDED, 48 STAT. 1185, 45 U.S.C. SECS. 151 ET
SEQ. 

FN3  IN ADDITION TO DOING ALL THE WORK DONE BY ORDINARY BRAKEMEN,
TRAIN PORTERS HAVE BEEN REQUIRED TO SWEEP THE COACHES AND ASSIST
PASSENGERS TO GET ON AND OFF THE TRAINS.  AS THE COURT OF APPEALS
NOTED, "THESE AISLE-SWEEPING AND PASSENGER-ASSISTING TASKS, HOWEVER,
ARE SIMPLY MINOR AND INCIDENTAL, OCCUPYING ONLY, AS THE RECORD SHOWS,
APPROXIMATELY FIVE PER CENT OF A TRAIN PORTER'S TIME."  191 F.2D 442,
444. 

FN4  ONE PART OF THE DISTRICT COURT'S ORDER WAS AFFIRMED.  THE COURT
OF APPEALS HELD THAT THE DISTRICT COURT HAD PROPERLY ENJOINED THE
RAILROAD FROM ABOLISHING THE POSITION OF "TRAIN PORTERS" UNDER THE
NOTICES GIVEN, ON THE GROUND THAT THESE NOTICES WERE INSUFFICIENT TO
MEET THE REQUIREMENTS OF SEC. 2, SEVENTH, AND SEC. 6 OF THE RAILWAY
LABOR ACT.  THE VIEW WE TAKE MAKES IT UNNECESSARY FOR US TO CONSIDER
THIS QUESTION. 

FN5  47 STAT. 70, 29 U.S.C. SECS. 101 ET SEQ. 

MR. JUSTICE MINTON, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE REED
JOIN, DISSENTING. 

THE RIGHT OF THE BROTHERHOOD TO REPRESENT RAILROAD EMPLOYEES EXISTED
BEFORE THE RAILWAY LABOR ACT WAS PASSED.  THE ACT SIMPLY PROTECTS THE
EMPLOYEES WHEN THIS RIGHT OF REPRESENTATION IS EXERCISED.  IF A LABOR
ORGANIZATION IS DESIGNATED BY A MAJORITY OF THE EMPLOYEES IN A CRAFT OR
CLASS AS BARGAINING REPRESENTATIVE FOR THAT CRAFT OR CLASS AND IS SO
RECOGNIZED BY THE CARRIER, THAT LABOR ORGANIZATION HAS A DUTY TO
REPRESENT IN GOOD FAITH ALL WORKERS OF THE CRAFT.  STEELE V. LOUISVILLE
& N.R. CO., 323 U.S. 192, 202.  IN THE STEELE CASE, THE COMPLAINANT WAS
A LOCOMOTIVE FIREMAN; HIS DUTIES WERE WHOLLY THOSE OF A FIREMAN.  THE
BROTHERHOOD IN THAT CASE REPRESENTED THE "FIREMEN'S CRAFT," BUT WOULD
NOT ADMIT STEELE AS A MEMBER BECAUSE HE WAS A NEGRO.  AS THE LEGAL
REPRESENTATIVE OF HIS CRAFT OF FIREMEN, THE BROTHERHOOD MADE A CONTRACT
WITH THE CARRIER THAT DISCRIMINATED AGAINST HIM BECAUSE OF HIS RACE. 
THIS COURT HELD THE CONTRACT INVALID.  IT WOULD HAVE BEEN THE SAME IF
THE BROTHERHOOD HAD DISCRIMINATED AGAINST HIM ON SOME OTHER GROUND,
UNRELATED TO RACE.  IT WAS THE BROTHERHOOD'S DUTY "TO ACT ON BEHALF OF
ALL THE EMPLOYEES WHICH, BY VIRTUE OF THE STATUTE, IT UNDERTAKES TO
REPRESENT."  STEELE, SUPRA, AT 199.    IN THE INSTANT CASE THE
BROTHERHOOD HAS NEVER PURPORTED TO REPRESENT THE TRAIN PORTERS.  THE
TRAIN PORTERS HAVE NEVER REQUESTED THAT THE BROTHERHOOD REPRESENT
THEM.  CLASSIFICATION OF THE JOB OF "TRAIN PORTER" WAS ESTABLISHED MORE
THAN FORTY YEARS AGO AND HAS NEVER BEEN DISPUTED.  AT THAT TIME, THE
PRINCIPAL DUTIES OF THE TRAIN PORTERS WERE CLEANING THE CARS, ASSISTING
THE PASSENGERS, AND HELPING TO LOAD AND UNLOAD BAGGAGE; ONLY A SMALL
PART OF THE DUTIES WERE THOSE OF BRAKEMEN, WHO WERE REQUIRED TO HAVE
HIGHER EDUCATIONAL QUALIFICATIONS.  AS EARLY AS 1921, THE TRAIN PORTERS
ORGANIZED A SEPARATE BARGAINING UNIT THROUGH WHICH THEY HAVE
CONTINUOUSLY BARGAINED WITH THE CARRIER HERE INVOLVED; THEY NOW HAVE AN
EXISTING CONTRACT WITH THIS CARRIER.  ALTHOUGH THE CARRIERS GRADUALLY
IMPOSED UPON THE TRAIN PORTERS MORE OF THE DUTIES OF BRAKEMEN UNTIL
TODAY MOST OF THEIR DUTIES ARE THOSE OF BRAKEMEN, THEY HAVE NEVER BEEN
CLASSIFIED AS BRAKEMEN. 

THE MAJORITY DOES NOT SAY THAT THE TRAIN PORTERS ARE BRAKEMEN AND
THEREFORE THE BROTHERHOOD MUST REPRESENT THEM FAIRLY, AS WAS HELD IN
STEELE.  WHETHER THEY BELONG TO THE BROTHERHOOD IS NOT DETERMINATIVE OF
THE LATTER'S DUTIES OF REPRESENTATION, IF IT REPRESENTS THE CRAFT OF
BRAKEMEN AND IF THE TRAIN PORTERS ARE BRAKEMEN.  STEELE WAS NOT A
MEMBER OF THE BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN AND COULD
NOT BE BECAUSE OF RACE - THE SAME REASON THAT THE TRAIN PORTERS CANNOT
BELONG TO THE BROTHERHOOD OF TRAINMEN.  BUT STEELE WAS A FIREMAN, WHILE
THE TRAIN PORTERS ARE NOT BRAKEMEN. 

THE BROTHERHOOD STOUTLY OPPOSES THE CONTENTION THAT IT IS THE
REPRESENTATIVE OF THE TRAIN PORTERS.   FOR THE COURT SO TO HOLD WOULD
BE TO FLY IN THE FACE OF THE STATUTE (45 U.S.C. SEC. 152, NINTH) AND
THE HOLDING OF THIS COURT IN GENERAL COMMITTEE V. MISSOURI-K.-T.R.
CO., 320 U.S. 323, 334-336.* THE MAJORITY AVOIDS THE DISPUTE IN TERMS
BUT EMBRACES IT IN FACT BY SAYING IT IS PASSING ON THE VALIDITY OF THE
CONTRACT.  IF THIS IS TRUE, IT IS DONE AT THE INSTANCE OF PERSONS FOR
WHOM THE BROTHERHOOD WAS NOT CONTRACTING AND WAS UNDER NO DUTY TO
CONTRACT.  THE TRAIN PORTERS HAD A DULY ELECTED BARGAINING
REPRESENTATIVE, WHICH FACT OPERATED TO EXCLUDE THE BROTHERHOOD FROM
REPRESENTING THE CRAFT.  STEELE, SUPRA, AT 200; VIRGINIAN R. CO. V.
SYSTEM FEDERATION, 300 U.S. 515, 548. 

*"NOR DOES SEC. 2, SECOND MAKE JUSTICIABLE WHAT OTHERWISE IS NOT.  IT
PROVIDES THAT 'ALL DISPUTES BETWEEN A CARRIER OR CARRIERS AND ITS OR
THEIR EMPLOYEES SHALL BE CONSIDERED, AND, IF POSSIBLE, DECIDED, WITH
ALL EXPEDITION, IN CONFERENCE BETWEEN REPRESENTATIVES DESIGNATED AND
AUTHORIZED SO TO CONFER, RESPECTIVELY, BY THE CARRIER OR CARRIERS AND
BY THE EMPLOYEES THEREOF INTERESTED IN THE DISPUTE.'  AS WE HAVE
ALREADY POINTED OUT, SEC. 2, NINTH, AFTER PROVIDING FOR A CERTIFICATION
BY THE MEDIATION BOARD OF THE PARTICULAR CRAFT OR CLASS REPRESENTATIVE,
STATES THAT 'THE CARRIER SHALL TREAT WITH THE REPRESENTATIVE SO
CERTIFIED AS THE REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES
OF THIS ACT.' 

     *         *         *         *    * 

"IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF SEC. 2, NINTH THAT IT
WAS DESIGNED NOT ONLY TO HELP FREE THE UNIONS FROM THE INFLUENCE,
COERCION AND CONTROL OF THE CARRIERS BUT ALSO TO RESOLVE A WIDE RANGE
OF JURISDICTIONAL DISPUTES BETWEEN UNIONS OR BETWEEN GROUPS OF
EMPLOYEES.  H. REP. NO. 1944, SUPRA, P. 2; S. REP. NO. 1065, 73D CONG.,
2D SESS., P. 3.  HOWEVER WIDE MAY BE THE RANGE OF JURISDICTIONAL
DISPUTES EMBRACED WITHIN SEC. 2, NINTH, CONGRESS DID NOT SELECT THE
COURTS TO RESOLVE THEM." 

THE MAJORITY REACHES OUT TO INVALIDATE THE CONTRACT, NOT BECAUSE THE
TRAIN PORTERS ARE BRAKEMEN ENTITLED TO FAIR REPRESENTATION BY THE
BROTHERHOOD, BUT BECAUSE THEY ARE NEGROES WHO WERE DISCRIMINATED
AGAINST BY THE CARRIER AT THE BEHEST OF THE BROTHERHOOD.  I DO NOT
UNDERSTAND THAT PRIVATE PARTIES SUCH AS THE CARRIER AND THE BROTHERHOOD
MAY NOT DISCRIMINATE ON THE GROUND OF RACE.  NEITHER A STATE GOVERNMENT
NOR THE FEDERAL GOVERNMENT MAY DO SO, BUT I KNOW OF NO APPLICABLE
FEDERAL LAW WHICH SAYS THAT PRIVATE PARTIES MAY NOT.  THAT IS THE WHOLE
PROBLEM UNDERLYING THE PROPOSED FEDERAL FAIR EMPLOYMENT PRACTICES
CODE.  OF COURSE, THIS COURT BY SHEER POWER CAN SAY THIS CASE IS
STEELE, OR EVEN LAY DOWN A CODE OF FAIR EMPLOYMENT PRACTICES.  BUT
SHEER POWER IS NOT A SUBSTITUTE FOR LEGALITY.  I DO NOT HAVE TO AGREE
WITH THE DISCRIMINATION HERE INDULGED IN TO QUESTION THE LEGALITY OF
TODAY'S DECISION. 

I THINK THERE WAS A DISPUTE HERE BETWEEN EMPLOYEES OF THE CARRIER AS
TO WHETHER THE BROTHERHOOD WAS THE REPRESENTATIVE OF THE TRAIN PORTERS,
AND THAT THIS IS A MATTER TO BE RESOLVED BY THE NATIONAL MEDIATION
BOARD, NOT THE COURTS.  I WOULD REMAND THIS CASE TO THE DISTRICT COURT
TO BE DISMISSED AS NONJUSTICIABLE. 
..END :












ISBRANDTSEN COMPANY, INC. V. JOHNSON 343 U.S. 779 


NO. 493.  ARGUED APRIL 23, 1952 - DECIDED JUNE 9, 1952 - 190 F.2D 991,
AFFIRMED. 


IN AN ADMIRALTY PROCEEDING BY A SEAMAN AGAINST HIS EMPLOYER TO RECOVER
WAGES EARNED ON A MERCHANT VESSEL OF UNITED STATES REGISTRY, THE
EMPLOYER MAY NOT SET OFF AGAINST THE SEAMAN'S WAGES ITS EXPENDITURES
FOR THE MEDICAL CARE AND HOSPITALIZATION OF ANOTHER MEMBER OF THE CREW
NECESSITATED BY INJURIES UNJUSTIFIABLY INFLICTED ON HIM BY THE SEAMAN
DURING THE VOYAGE ON WHICH THE WAGES WERE EARNED.  PP. 780-789. 

(A)  CONGRESS HAS PREEMPTED THE AREA RELATING TO DEDUCTIONS AND SET
OFFS BASED ON DERELICTIONS OF DUTY AS AGAINST A SEAMAN'S CLAIM TO HIS
WAGES AND, IN EFFECT, HAS EXCLUDED ALL OF THEM EXCEPT THOSE WHICH IT
HAS LISTED AFFIRMATIVELY.  PP. 781-789. 

(B)  ASSUMING THAT THIS SEAMAN'S UNJUSTIFIED ATTACK UPON ANOTHER
MEMBER OF THE CREW AMOUNTED TO A BREACH OF GENERAL DISCIPLINE, IT
HARDLY AMOUNTED TO "WILLFUL DISOBEDIENCE TO ANY LAWFUL COMMAND AT SEA"
WITHIN THE MEANING OF R.S. SEC. 4596, FOURTH.  P. 788. 

(C)  ASSUMING THAT IT CAUSED EXPENSE TO HIS EMPLOYER, IT HARDLY
AMOUNTED TO "WILLFULLY DAMAGING THE VESSEL" OR "ANY OF THE STORES OR
CARGO" WITHIN THE MEANING OF R.S. SEC. 4596, SEVENTH.  P. 788. 

ISBRANDTSEN COMPANY, INC. V. JOHNSON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN AN ADMIRALTY PROCEEDING BY A SEAMAN AGAINST HIS EMPLOYER TO
RECOVER WAGES EARNED ON A MERCHANT VESSEL OF UNITED STATES REGISTRY,
THE DISTRICT COURT DISALLOWED HIS EMPLOYER'S COUNTERCLAIM.  91 F. SUPP.
872.  THE COURT OF APPEALS AFFIRMED.  190 F.2D 991.  THIS COURT GRANTED
CERTIORARI.  342 U.S. 940.  AFFIRMED, P. 789. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US ARISES IN AN ADMIRALTY PROCEEDING BY A SEAMAN
AGAINST HIS EMPLOYER TO RECOVER WAGES EARNED ON A MERCHANT VESSEL OF
UNITED STATES REGISTRY.  THE QUESTION IS WHETHER THE EMPLOYER MAY SET
OFF AGAINST THE SEAMAN'S WAGES ITS EXPENDITURES FOR THE MEDICAL CARE
AND HOSPITALIZATION OF ANOTHER MEMBER OF THE CREW NECESSITATED BY
INJURIES INFLICTED ON HIM BY THE SEAMAN, WITHOUT JUSTIFICATION, DURING
THE VOYAGE ON WHICH THE WAGES WERE EARNED.  FOR THE REASONS HEREAFTER
STATED WE HOLD THAT IT MAY NOT DO SO. 

IN 1948, RESPONDENT, JOHNSON, WAS EMPLOYED BY PETITIONER, ISBRANDTSEN
COMPANY, INC., AS A MESSMAN ON A FOREIGN VOYAGE OF A VESSEL OF UNITED
STATES REGISTRY, CHARTERED BY PETITIONER.  ON APRIL 21, WHILE THE
VESSEL WAS ON ITS COURSE IN THE PACIFIC, JOHNSON, WITHOUT
JUSTIFICATION, STABBED BRANDON, ANOTHER MEMBER OF THE CREW.  HE INJURED
BRANDON SO SEVERELY THAT PETITIONER FOUND IT NECESSARY TO DIVERT ITS
VESSEL FROM ITS COURSE IN ORDER TO HOSPITALIZE BRANDON ON THE ISLAND OF
TONGA.  JOHNSON MAKES NO CLAIM FOR WAGES EARNED AFTER APRIL 21. 
HOWEVER, WHEN DISCHARGED IN PHILADELPHIA, MAY 31, 1948, JOHNSON CLAIMED
$439.27 AS EARNED WAGES DUE HIM ABOVE ALL DEDUCTIONS, WITHOUT MAKING
ALLOWANCES FOR ANY EXPENDITURES MADE BY PETITIONER FOR THE CARE OR
HOSPITALIZATION OF BRANDON.  WHEN PETITIONER REFUSED TO PAY JOHNSON
ANYTHING, HE FILED A LIBEL AND COMPLAINT IN THE UNITED STATES DISTRICT
COURT TO RECOVER THE BALANCE DUE ON HIS EARNED WAGES, PLUS INTEREST,
TRANSPORTATION TO SEATTLE (HIS PORT OF SIGNING ON) AND DOUBLE WAGES FOR
EACH DAY OF UNLAWFUL DELAY IN THE PAYMENT OF THE SUM DUE.  (FN1)
PETITIONER SET UP A COUNTERCLAIM OF $2,500, LATER REDUCED TO $1,691.55,
FOR EXPENSES AND LOSSES CAUSED IT BY JOHNSON'S ATTACK ON BRANDON. 
(FN2)  IT CONTENDED ALSO THAT THE NATURE OF THIS DEFENSE DEMONSTRATED
THE EXISTENCE OF SUFFICIENT STATUTORY CAUSE FOR ITS DELAY IN MAKING
PAYMENT. 

THE DISTRICT COURT DISALLOWED PETITIONER'S COUNTERCLAIM AND ENTERED
JUDGMENT FOR RESPONDENT'S EARNED WAGES AND TRANSPORTATION ALLOWANCE,
PLUS INTEREST AND COSTS.  IT DISALLOWED RESPONDENT'S CLAIM FOR DOUBLE
WAGES.  (FN3)  91 F. SUPP. 872.  PETITIONER APPEALED BUT THE COURT OF
APPEALS AFFIRMED.  190 F.2D 991.  WE GRANTED CERTIORARI BECAUSE THE
DECISION BELOW PRESENTS AN IMPORTANT QUESTION OF MARITIME LAW NOT
HERETOFORE DETERMINED BY THIS COURT.  342 U.S. 940. 

PETITIONER CITES SEVERAL EARLY LOWER COURT DECISIONS WHICH ALLOWED A
SET-OFF AGAINST A SEAMAN'S SUIT FOR WAGES.  THESE WERE LARGELY RENDERED
BEFORE THE SHIPPING COMMISSIONERS ACT OF 1872 OR RENDERED LATER WITHOUT
DISCUSSION OF THAT OR SUBSEQUENT LEGISLATION.  (FN40) WE ARE CONVINCED,
HOWEVER, THAT THE LEGISLATION PASSED BY CONGRESS FOR THE PROTECTION OF
SEAMEN, BEGINNING IN 1872, HAS NOW COVERED THIS FIELD.  PETITIONER'S
SET-OFF IS NOT PRESCRIBED, RECOGNIZED OR PERMITTED BY SUCH
LEGISLATION.  SO FAR AS THAT LEGISLATION GOES, SUCH A SET-OFF IS NOT
AVAILABLE AS A DEFENSE AGAINST A SEAMAN'S CLAIM FOR EARNED WAGES.  R.S.
SEC. 4547, 30 STAT. 756, 46 U.S.C. SEC. 604.  ON THE OTHER HAND, THE
ABSENCE OF SUCH AUTHORIZATION FOR THE EMPLOYER TO SET OFF SUCH A
COUNTERCLAIM DOES NOT PRECLUDE IT FROM SEEKING TO COLLECT THE CLAIM
OTHERWISE. 

FOR THE PURPOSES OF THIS CASE, WE MAY ASSUME THAT PETITIONER OWED
BRANDON THE LEGAL DUTY TO PROVIDE HIM WITH THE MEDICAL CARE AND
HOSPITALIZATION WHICH IT PROVIDED AND ALSO OWED HIM THE DUTY TO DIVERT
ITS VESSEL FROM ITS COURSE TO SECURE HIS HOSPITALIZATION AT TONGA. 
AGUILAR V. STANDARD OIL CO., 318 U.S. 724, 730, 732-736.  SEE CORTES V.
BALTIMORE INSULAR LINE, 287 U.S. 367, 375; ALPHA S.S. CORP. V. CAIN,
281 U.S. 642; JAMISON V. ENCARNACION, 281 U.S. 635.  ALSO, WE MAY
ASSUME, WITHOUT DECIDING, THAT RESPONDENT OWED PETITIONER AN OBLIGATION
TO REIMBURSE PETITIONER FOR THE EXPENSE WHICH HE THUS THRUST UPON IT BY
HIS UNJUSTIFIED ATTACK UPON A FELLOW SEAMAN. 

WHENEVER CONGRESSIONAL LEGISLATION IN AID OF SEAMEN HAS BEEN
CONSIDERED HERE SINCE 1872, THIS COURT HAS EMPHASIZED THAT SUCH
LEGISLATION IS LARGELY REMEDIAL AND CALLS FOR LIBERAL INTERPRETATION IN
FAVOR OF THE SEAMEN.  THE HISTORY AND SCOPE OF THE LEGISLATION IS
REVIEWED IN AGUILAR V. STANDARD OIL CO., 318 U.S. 724, 727-735, AND
NOTES.  "OUR HISTORIC NATIONAL POLICY, BOTH LEGISLATIVE AND JUDICIAL,
POINTS THE OTHER WAY FROM BURDENING SEAMEN.  CONGRESS HAS GENERALLY
SOUGHT TO SAFEGUARD SEAMEN'S RIGHTS."  GARRETT V. MOORE-MCCORMACK CO.,
317 U.S. 239, 246.  "THE MARITIME LAW BY INVETERATE TRADITION HAS MADE
THE ORDINARY SEAMAN A MEMBER OF A FAVORED CLASS.  HE IS A 'WARD OF THE
ADMIRALTY,' OFTEN IGNORANT AND HELPLESS, AND SO IN NEED OF PROTECTION
AGAINST HIMSELF AS WELL AS OTHERS  ...  .  DISCRIMINATION MAY THUS BE
RATIONAL IN RESPECT OF REMEDIES FOR WAGES."  WARNER V. GOLTRA, 293 U.S.
155, 162; CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367, 375, 377;
WILDER V. INTER-ISLAND NAVIGATION CO., 211 U.S. 239, 246-248; PATTERSON
V. BARK EUDORA, 190 U.S. 169; BRADY V. DALY, 175 U.S. 148, 155-157. 
"THE ANCIENT CHARACTERIZATION OF SEAMEN AS 'WARDS OF ADMIRALTY' IS EVEN
MORE ACCURATE NOW THAN IT WAS FORMERLY."  ROBERTSON V. BALDWIN, 165
U.S. 275, 287, (FN5) HARDEN V. GORDON, 11 FED. CAS. NO. 6,047, 2 MASON
(CIR. CT. REP.) 541, 556. 

STATUTES WHICH INVADE THE COMMON LAW OR THE GENERAL MARITIME LAW ARE
TO BE READ WITH A PRESUMPTION FAVORING THE RETENTION OF LONG
ESTABLISHED AND FAMILIAR PRINCIPLES, EXCEPT WHEN A STATUTORY PURPOSE TO
THE CONTRARY IS EVIDENT.  NO RULE OF CONSTRUCTION PRECLUDES GIVING A
NATURAL MEANING TO LEGISLATION LIKE THIS THAT OBVIOUSLY IS OF A
REMEDIAL, BENEFICIAL AND AMENDATORY CHARACTER.  IT SHOULD BE
INTERPRETED SO AS TO EFFECT ITS PURPOSE.  MARINE LEGISLATION, AT LEAST
SINCE THE SHIPPING COMMISSIONERS ACT OF JUNE 7, 1872, 17 STAT. 262,
SHOULD BE CONSTRUED TO MAKE EFFECTIVE ITS DESIGN TO CHANGE THE GENERAL
MARITIME LAW SO AS TO IMPROVE THE LOT OF SEAMEN.  "THE RULE THAT
STATUTES IN DEROGATION OF THE COMMON LAW ARE TO BE STRICTLY CONSTRUED
DOES NOT REQUIRE SUCH AN ADHERENCE TO THE LETTER AS WOULD DEFEAT AN
OBVIOUS LEGISLATIVE PURPOSE OR LESSEN THE SCOPE PLAINLY INTENDED TO BE
GIVEN TO THE MEASURE."  JAMISON V. ENCARNACION, 281 U.S. 635, 640;
TEXAS & P.R.  CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, 437, 440. 
THE DIRECTION OF THE CURRENT MARITIME LEGISLATION LONG HAS BEEN EVIDENT
ON ITS FACE. 

"IN THIS COUNTRY THESE NOTIONS WERE REFLECTED EARLY, AND HAVE SINCE
BEEN EXPANDED, IN LEGISLATION DESIGNED TO SECURE THE COMFORT AND HEALTH
OF SEAMEN ABOARD SHIP, HOSPITALIZATION AT HOME AND CARE ABROAD  ...  .
THE LEGISLATION  ...  GIVES NO GROUND FOR MAKING INFERENCES ADVERSE TO
THE SEAMAN OR RESTRICTIVE OF HIS RIGHTS  ...  .  RATHER IT FURNISHES
THE STRONGEST BASIS FOR REGARDING THEM BROADLY, WHEN AN ISSUE
CONCERNING THEIR SCOPE ARISES, AND PARTICULARLY WHEN IT RELATES TO THE
GENERAL CHARACTER OF RELIEF THE LEGISLATION WAS INTENDED TO SECURE." 
AGUILAR V. STANDARD OIL CO., 318 U.S. 724, 728-729. 

IN THE SPECIFIC AREA OF A SEAMAN'S RIGHT TO COLLECT HIS EARNED WAGES
PROMPTLY UPON DISCHARGE, SEC. 61 OF THE SHIPPING COMMISSIONERS ACT
PROVIDED THAT "NO WAGES DUE OR ACCRUING TO ANY SEAMAN OR APPRENTICE
SHALL BE SUBJECT TO ATTACHMENT OR ARRESTMENT FROM ANY COURT; ...  ." 
17 STAT. 276, R.S. SEC. 4536, 38 STAT. 1169, 46 U.S.C. SEC. 601.  THE
FULL FORCE OF THIS BECAME EVIDENT WHEN THIS COURT, IN 1908, INTERPRETED
"ATTACHMENT" AND "ARRESTMENT" TO MEAN THAT THE ACT PROHIBITS THE
SEIZURE OF A SEAMAN'S EARNED WAGES EVEN BY LEVYING EXECUTION AGAINST
THEM TO COLLECT VALID JUDGMENTS.  WILDER V. INTER-ISLAND NAVIGATION
CO., 211 U.S. 239; SEE 1 NORRIS, THE LAW OF SEAMEN (1951), 347-350. 

CONGRESSIONAL LEGISLATION NOW TOUCHES NEARLY EVERY PHASE OF A
SEAMAN'S LIFE.  IT CONCERNS ITSELF WITH HIS PERSONAL SAFETY, COMFORT
AND HEALTH IN MANY WAYS NOT NECESSARY TO REVIEW HERE.  IT DEALS
SPECIFICALLY WITH HIS SHIPPING ARTICLES AND THE PAYMENT TO HIM OF HIS
WAGES.   IT INSURES GENERALLY A PARTIAL PAYMENT TO HIM OF HIS WAGES AT
EACH PORT WHERE HIS VESSEL LOADS OR DELIVERS CARGO.  IT INSURES THE
PAYMENT TO HIM OF THE BALANCE OF THOSE WAGES UPON COMPLETION OF HIS
VOYAGE OR SHORTLY AFTER HIS DISCHARGE.  (FN6)  IT DEALS EXPLICITLY WITH
THE FINAL PAYMENT OF WAGES.  (FN7)  IT DESCRIBES "FORFEITURES" WHICH
LAWFULLY MAY BE DEDUCTED FROM A SEAMAN'S WAGES "FOR THE BENEFIT OF THE
MASTER OR OWNER BY WHOM THE WAGES ARE PAYABLE."  (FN8)  THESE
PROVISIONS FOR THE RETURN OF WAGES TO THE EMPLOYER ARE REMEDIAL, RATHER
THAN PENAL, IN THEIR NATURE.  SEE CRAWFORD, THE CONSTRUCTION OF
STATUTES (1940), 106. 

IN KEEPING WITH THE SPIRIT OF SUCH LEGISLATION AND THE NEED FOR CLEAR
RULES GOVERNING THE COMPUTATION OF THE BALANCE DUE EACH SEAMAN UPON HIS
DISCHARGE, IT IS REASONABLE TO HOLD THAT ONLY SUCH DEDUCTIONS AND SET
OFFS FOR DERELICTIONS IN THE PERFORMANCE OF HIS DUTIES SHALL BE ALLOWED
AGAINST HIS WAGES AS ARE RECOGNIZED IN THE STATUTES.  OTHER CLAIMS
AGAINST HIM MAY BE VALID BUT THEIR COLLECTION MUST BE SOUGHT THROUGH
OTHER MEANS.  (FN9)  THE APPROPRIATENESS OF THIS SOLUTION IS EMPHASIZED
IN THE CASE OF UNLIQUIDATED COUNTERCLAIMS.  PETITIONER'S UNLIQUIDATED
CLAIM WAS FIRST ESTIMATED AT $2,500.  IT NOW HAS BEEN FIXED AT
$1,691.55.  THE FACTORS MAKING UP SUCH A CLAIM ARE LARGELY WITHIN THE
CONTROL AND KNOWLEDGE OF THE EMPLOYER ALONE AND IT EASILY COULD WIPE
OUT EVERY CENT OF A SEAMAN'S EARNED WAGES. 

THERE IS LITTLE SUBSTANCE TO THE SUGGESTION THAT THE EXPENSES AT
ISSUE CAN BE BROUGHT WITHIN THE STATUTORILY RECOGNIZED "FORFEITURES." 
ASSUMING THAT JOHNSON'S ATTACK AMOUNTED TO A BREACH OF GENERAL
DISCIPLINE, IT HARDLY AMOUNTED TO "WILLFUL DISOBEDIENCE TO ANY LAWFUL
COMMAND AT SEA  ... ."  R.S. SEC. 4596, FOURTH.  (FN10)  ASSUMING THAT
IT CAUSED EXPENSE TO PETITIONER, IT HARDLY AMOUNTED TO "WILLFULLY
DAMAGING THE VESSEL  ...  OR  ...  ANY OF THE STORES OR CARGO  ...  ." 
R.S. SEC. 4596, SEVENTH.  (FN11) 

FROM THIS, WE CONCLUDE THAT CONGRESS HAS PREEMPTED THE AREA RELATING
TO DEDUCTIONS AND SET-OFFS BASED UPON DERELICTIONS OF DUTY AS AGAINST A
SEAMAN'S CLAIM TO HIS WAGES.  CONGRESS HAS GONE SO FAR IN EXPRESSLY
LISTING SUCH DEDUCTIONS AND SET-OFFS THAT IT IS A FAIR INFERENCE THAT
THOSE NOT LISTED MAY NOT BE MADE.  IT THUS REMAINS FOR THE COURTS TO
DETERMINE ONLY WHAT ARE THE DEDUCTIONS OR SET-OFFS FOR DERELICTIONS OF
DUTY THAT ARE LISTED BY CONGRESS, RATHER THAN TO DETERMINE WHICH OF THE
DEDUCTIONS OR SET-OFFS ONCE KNOWN TO THE GENERAL MARITIME LAW CONGRESS
HAS FAILED TO EXCLUDE.  CONGRESS, IN EFFECT, HAS EXCLUDED ALL OF THEM
EXCEPT THOSE WHICH IT HAS LISTED AFFIRMATIVELY.  (FN12) 

ACCORDINGLY, THE JUDGMENT IS AFFIRMED. 

FN1  UNDER R.S. SEC. 4529, AS AMENDED, 30 STAT. 756, 38 STAT. 1164,
46 U.S.C.  SEC. 596.  SEE NOTE 7, INFRA. 

FN2  THE LATTER SUM IS THE STIPULATED AMOUNT OF PETITIONER'S
EXPENDITURES FOR HOSPITALIZATION, MEDICAL CARE, REPATRIATION AND
SUBSISTENCE OF BRANDON, PLUS PETITIONER'S EXPENSES FOR THE DIVERSION OF
ITS VESSEL TO TONGA, INCLUDING PILOTAGE, MANIFESTS, HARBOR DUES, FUEL
CONSUMED AND FOOD FOR THE CREW. 

FN3  SEE COLLIE V. FERGUSSON, 281 U.S. 52. 

FN4  FOR THE SHIPPING COMMISSIONERS ACT, SEE 17 STAT. 262 ET SEQ.,
TIT. LIII, R.S.  SECS. 4501-4612, 46 U.S.C., C. 18, SECS. 541-713.  THE
ACT OF JULY 20, 1970, 1 STAT. 131, IN EFFECT PRIOR TO 1872, WAS A
LIMITED FORERUNNER OF THE EXPANSIVE REMEDIAL LEGISLATION THAT
FOLLOWED.  IT DID NOT ATTEMPT TO COVER THE FIELD TO AN EXTENT
COMPARABLE TO THAT DONE BY THE LATER LEGISLATION.  ACCORDINGLY,
DECISIONS RENDERED BEFORE 1872, RECOGNIZING AN EMPLOYER'S RIGHT OF
RECOUPMENT AGAINST SEAMEN'S WAGES UNDER GENERAL MARITIME LAW, ARE NOT
AUTHORITATIVE GUIDES TODAY.  THE EARLY CASES ARE REVIEWED IN 1 NORRIS,
THE LAW OF SEAMEN (1951), 378-391. 

FN5  THAT APPRAISAL WAS REAFFIRMED IN CORTES V. BALTIMORE INSULAR
LINE, 287 U.S. 367, 377.  CURRENT TESTIMONY IS ADDED BY THE FOLLOWING
STATEMENT: 

"IN MY DEALINGS WITH SEAMEN, A CLASS WITH WHOM I COME IN FREQUENT
CONTACT, I FIND THAT THEY ARE PERHAPS BETTER EDUCATED AND BETTER
DRESSED THAN THEIR FELLOWS A CENTURY AGO, BUT, IN GENERAL, AS
IMPROVIDENT AND PRONE TO THE EXTREMES OF TRUST AND SUSPICION AS THEIR
FOREBEARS WHO RANGED THE SEAS, BUT WITHAL A LIKEABLE LOT."  1 NORRIS,
THE LAW OF SEAMEN (1951), PREFACE. 

FN6  IN HARBORS OF THE UNITED STATES THIS APPLIES EVEN TO SEAMEN ON
FOREIGN VESSELS.  R.S. SEC. 4530, 30 STAT. 756, 38 STAT. 1165, 41 STAT.
1006, 46 U.S.C. SEC. 597.  EXCEPT AS EXPRESSLY PROVIDED BY STATUTE, NO
SEAMAN MAY BE PAID IN ADVANCE OR MAY GIVE UP TO OTHERS HIS PERSONAL
RIGHT TO HIS WAGES OR HIS REMEDIES FOR THEIR RECOVERY.  23 STAT. 55-56,
30 STAT. 763-764, 33 STAT. 308, 38 STAT. 1168-1169, 41 STAT. 1006, 53
STAT. 794, 64 STAT.  1081, 1239, 46 U.S.C. SEC. 599, AND 46 U.S.C.
(SUPP. IV) SEC. 599(B)(G); R.S. SEC. 4535, 46 U.S.C. SEC. 600.  HIS
WAGES ARE NOT SUBJECT TO ATTACHMENT OR ARRESTMENT EXCEPT FOR LIMITED
PROVISIONS FOR THE SUPPORT OF A WIFE OR MINOR CHILDREN; ALLOTMENTS TO
RELATIVES ARE RESTRICTED.  R.S. SEC. 4536, 17 STAT. 276, 38 STAT. 1169,
46 U.S.C. SEC. 601.  PAYMENTS IN FOREIGN PORTS ARE SAFEGUARDED THROUGH
UNITED STATES CONSULS.  R.S. SECS. 4580, 4581, 4583, 23 STAT. 54-55, 30
STAT. 759, 38 STAT. 1185, 46 U.S.C. SECS. 682, 683, 685.    FN7  "SEC. 
4529:  THE MASTER OR OWNER OF ANY VESSEL MAKING COASTING VOYAGES SHALL
PAY TO EVERY SEAMAN HIS WAGES WITHIN TWO DAYS AFTER THE TERMINATION OF
THE AGREEMENT UNDER WHICH HE WAS SHIPPED, OR AT THE TIME SUCH SEAMAN IS
DISCHARGED, WHICHEVER FIRST HAPPENS; AND IN CASE OF VESSELS MAKING
FOREIGN VOYAGES, OR FROM A PORT ON THE ATLANTIC TO A PORT ON THE
PACIFIC, OR VICE VERSA, WITHIN TWENTY-FOUR HOURS AFTER THE CARGO HAS
BEEN DISCHARGED, OR WITHIN FOUR DAYS AFTER THE SEAMAN HAS BEEN
DISCHARGED, WHICHEVER FIRST HAPPENS; AND IN ALL CASES THE SEAMAN SHALL
BE ENTITLED TO BE PAID AT THE TIME OF HIS DISCHARGE ON ACCOUNT OF WAGES
A SUM EQUAL TO ONE-THIRD PART OF THE BALANCE DUE HIM.  EVERY MASTER OR
OWNER WHO REFUSES OR NEGLECTS TO MAKE PAYMENT IN THE MANNER
HEREINBEFORE MENTIONED WITHOUT SUFFICIENT CAUSE SHALL PAY THE SEAMAN A
SUM EQUAL TO TWO DAYS' PAY FOR EACH AND EVERY DAY DURING WHICH PAYMENT
IS DELAYED BEYOND THE RESPECTIVE PERIODS, WHICH SUM SHALL BE
RECOVERABLE AS WAGES IN ANY CLAIM MADE BEFORE THE COURT; BUT THIS
OF WHICH ARE ENTITLED TO SHARE IN THE PROFITS OF THE CRUISE OR
VOYAGE."  R.S. SEC. 4529, AS AMENDED, 38 STAT. 1164-1165, 46 U.S.C.
SEC. 596. 

FN8  "SEC.  4596.  WHENEVER ANY SEAMAN WHO HAS BEEN LAWFULLY ENGAGED
OR ANY APPRENTICE TO THE SEA SERVICE COMMITS ANY OF THE FOLLOWING
OFFENSES HE SHALL BE PUNISHED AS FOLLOWS: 

"FIRST.  FOR DESERTION, BY FORFEITURE OF ALL OR ANY PART OF THE
CLOTHES OR EFFECTS HE LEAVES ON BOARD AND OF ALL OR ANY PART OF THE
WAGES OR EMOLUMENTS WHICH HE HAS THEN EARNED. 

"SECOND.  FOR NEGLECTING OR REFUSING WITHOUT REASONABLE CAUSE TO JOIN
HIS VESSEL OR TO PROCEED TO SEA IN HIS VESSEL, OR FOR ABSENCE WITHOUT
LEAVE AT ANY TIME WITHIN TWENTY-FOUR HOURS OF THE VESSEL'S SAILING FROM
ANY PORT, EITHER AT THE COMMENCEMENT OR DURING THE PROGRESS OF THE
VOYAGE, OR FOR ABSENCE AT ANY TIME WITHOUT LEAVE AND WITHOUT SUFFICIENT
REASON FROM HIS VESSEL AND FROM HIS DUTY, NOT AMOUNTING TO DESERTION,
BY FORFEITURE FROM HIS WAGES OF NOT MORE THAN TWO DAYS' PAY OR
SUFFICIENT TO DEFRAY ANY EXPENSES WHICH SHALL HAVE BEEN PROPERLY
INCURRED IN HIRING A SUBSTITUTE. 

"THIRD.  FOR QUITTING THE VESSEL WITHOUT LEAVE, AFTER HER ARRIVAL AT
THE PORT OF HER DELIVERY AND BEFORE SHE IS PLACED IN SECURITY, BY
FORFEITURE FROM HIS WAGES OF NOT MORE THAN ONE MONTH'S PAY. 

"FOURTH.  FOR WILLFUL DISOBEDIENCE TO ANY LAWFUL COMMAND AT SEA, BY
BEING, AT THE OPTION OF THE MASTER, PLACED IN IRONS UNTIL SUCH
DISOBEDIENCE SHALL CEASE, AND UPON ARRIVAL IN PORT BY FORFEITURE FROM
HIS WAGES OF NOT MORE THAN FOUR DAYS' PAY, OR, AT THE DISCRETION OF THE
COURT, BY IMPRISONMENT FOR NOT MORE THAN ONE MONTH. 

"FIFTH.  FOR CONTINUED WILLFUL DISOBEDIENCE TO LAWFUL COMMAND OR
CONTINUED WILLFUL NEGLECT OF DUTY AT SEA, BY BEING, AT THE OPTION OF
THE MASTER, PLACED IN IRONS, ON BREAD AND WATER, WITH FULL RATIONS
EVERY FIFTH DAY, UNTIL SUCH DISOBEDIENCE SHALL CEASE, AND UPON ARRIVAL
IN PORT BY FORFEITURE, FOR EVERY TWENTY-FOUR HOURS' CONTINUANCE OF SUCH
DISOBEDIENCE OR NEGLECT, OF A SUM OF NOT MORE THAN TWELVE DAYS' PAY, OR
BY IMPRISONMENT FOR NOT MORE THAN THREE MONTHS, AT THE DISCRETION OF
THE COURT. 

"SIXTH.  FOR ASSAULTING ANY MASTER, MATE, PILOT, ENGINEER, OR STAFF
OFFICER, BY IMPRISONMENT FOR NOT MORE THAN TWO YEARS. 

"SEVENTH.  FOR WILLFULLY DAMAGING THE VESSEL, OR EMBEZZLING OR
WILLFULLY DAMAGING ANY OF THE STORES OR CARGO, BY FORFEITURE OUT OF HIS
WAGES OF A SUM EQUAL IN AMOUNT TO THE LOSS THEREBY SUSTAINED, AND ALSO,
AT THE DISCRETION OF THE COURT, BY IMPRISONMENT FOR NOT MORE THAN
TWELVE MONTHS. 

"EIGHTH.  FOR ANY ACT OF SMUGGLING FOR WHICH HE IS CONVICTED AND
WHEREBY LOSS OR DAMAGE IS OCCASIONED TO THE MASTER OR OWNER, HE SHALL
BE LIABLE TO PAY SUCH MASTER OR OWNER SUCH A SUM AS IS SUFFICIENT TO
REIMBURSE THE MASTER OR OWNER FOR SUCH LOSS OR DAMAGE, AND THE WHOLE OR
ANY PART OF HIS WAGES MAY BE RETAINED IN SATISFACTION OR ON ACCOUNT OF
SUCH LIABILITY, AND HE SHALL BE LIABLE TO IMPRISONMENT FOR A PERIOD OF
NOT MORE THAN TWELVE MONTHS."  R.S. SEC. 4596, AS AMENDED, 38 STAT.
1166, 53 STAT. 1147, 46 U.S.C. SEC. 701. 

SPECIAL PROVISION IS MADE FOR FORFEITURES INCIDENT TO DESERTION. 
THEY ARE TO BE APPLIED "IN THE FIRST INSTANCE, IN PAYMENT OF THE
EXPENSES OCCASIONED BY SUCH DESERTION, TO THE MASTER OR OWNER OF THE
VESSEL FROM WHICH THE DESERTION HAS TAKEN PLACE  ...  ."  THE BALANCE
IS TO BE PAID BY THE MASTER OR OWNER TO A GOVERNMENT OFFICIAL TO BE
DISPOSED OF IN THE SAME MANNER AS IN THE CASE OF A DECEASED SEAMAN. 
"IN ALL OTHER CASES OF FORFEITURE OF WAGES, THE FORFEITURE SHALL BE FOR
THE BENEFIT OF THE MASTER OR OWNER BY WHOM THE WAGES ARE PAYABLE." 
R.S. SEC. 4604, 46 U.S.C. SEC. 706. 

CERTAIN EXPENSES UNJUSTIFIABLY FORCED UPON HIS EMPLOYER BY A SEAMAN
ARE EXPRESSLY MADE CHARGEABLE AGAINST HIS EARNED WAGES:  UNJUSTIFIED
INSPECTIONS OF SEAWORTHINESS OF THE VESSEL, R.S. SEC. 4562, 46 U.S.C.
SEC. 659; UNJUSTIFIED SURVEYS OF PROVISIONS AND WATER, R.S. SEC. 4566,
AS AMENDED, 30 STAT. 758, 46 U.S.C. SEC. 663; PART OF COST OF SECURING
CONVICTION OF SEAMAN FOR OFFENSES COMMITTED ON THE VOYAGE, R.S. SEC.
4605, 46 U.S.C.  SEC. 707. 

FN9  "THE ABOVE SECTIONS (46 U.S.C. SECS. 596, 597, 600, 601, 682,
683 AND 685) LOOK TOWARDS PAYMENT TO THE SEAMAN BY HIS EMPLOYER, AT THE
TERMINATION OF THE EMPLOYMENT, OF ALL OF HIS EARNED WAGES, WITHOUT ANY
DEDUCTIONS EXCEPT THOSE WHICH ARE EXPRESSLY AUTHORIZED BY STATUTE. 

     *         *         *         *         * 

"WHILE IT IS THE GENERAL RULE THAT A SEAMAN DISCHARGED IN A FOREIGN
PORT IS ENTITLED TO RECEIVE HIS WAGES 'WITHOUT ANY DEDUCTION WHATEVER'
OF CLAIMS AGAINST HIM WHETHER OF HIS EMPLOYER OR OF THIRD PARTIES,
THERE ARE EXCEPTIONS RECOGNIZED BY THE MARITIME LAW AND NOW EMBODIED IN
STATUTES."  SHILMAN V. UNITED STATES, 164 F.2D 649, 650-651; AND SEE
CHAMBERS V. MOORE MCCORMACK LINES, 182 F.2D 747; ELDRIDGE V.
ISBRANDTSEN CO., 89 F. SUPP.  718.  CF. OLDFIELD V. THE ARTHUR P.
FAIRFIELD, 176 F.2D 429. 

FN10  SEE NOTE 8, SUPRA. 

FN11  SEE NOTE 8, SUPRA.  JOHNSON'S ATTACK ALSO WAS NOT AN ASSAULT ON
"ANY MASTER, MATE, PILOT, ENGINEER, OR STAFF OFFICER" OF THE VESSEL. 
R.S. SEC. 4596, SIXTH, NOTE 8, SUPRA.  SUCH AN ASSAULT MAY LEAD TO
IMPRISONMENT OF THE OFFENDER BUT IT ENTAILS NO "FORFEITURE."  IF NO
"FORFEITURE" MAY BE SET OFF AGAINST A SEAMAN'S WAGES FOR EXPENSES
RESULTING TO HIS EMPLOYER FROM HIS ASSAULT UPON A SUPERIOR OFFICER,
THERE IS LITTLE BASIS TO IMPLY CONGRESSIONAL APPROVAL OF A SET-OFF
AGAINST HIS WAGES TO COVER EXPENSES RESULTING FROM HIS ASSAULT UPON A
FELLOW MEMBER OF THE CREW NOT HIS SUPERIOR. 

FN12 FOR COMPARABLE REASONS, PETITIONER'S COUNTERCLAIM MAY NOT BE SET
OFF AGAINST THE ALLOWANCE MADE TO RESPONDENT FOR TRANSPORTATION TO HIS
PORT OF SIGNING ON.  THAT ALLOWANCE IS PROPORTIONATELY AS IMPORTANT TO
HIM AND TO HIS WELFARE AS IS THE BALANCE DUE HIM FOR EARNED WAGES. 

MR. JUSTICE JACKSON DISSENTS. 
..END :
















LELAND V. OREGON 343 U.S. 790 


NO. 176.  ARGUED JANUARY 29, 1952 - DECIDED JUNE 9, 1952 - 190 ORE. 
598, 227 P.2D 785, AFFIRMED. 


IN A CRIMINAL PROSECUTION IN AN OREGON STATE COURT ON AN INDICTMENT
FOR MURDER IN THE FIRST DEGREE, APPELLANT PLEADED NOT GUILTY AND GAVE
NOTICE OF HIS INTENTION TO PROVE INSANITY.  OREGON STATUTES REQUIRED
HIM TO PROVE HIS INSANITY BEYOND A REASONABLE DOUBT AND MADE A "MORBID
PROPENSITY" NO DEFENSE.  APPELLANT WAS FOUND GUILTY BY A JURY AND WAS
SENTENCED TO DEATH.  HELD: THESE STATUTES DID NOT DEPRIVE APPELLANT OF
LIFE AND LIBERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE
FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION.  PP. 791-802. 

1.  THE TRIAL JUDGE'S INSTRUCTIONS TO THE JURY, AND THE CHARGE AS A
WHOLE, MADE IT CLEAR THAT THE BURDEN WAS UPON THE STATE TO PROVE ALL
THE NECESSARY ELEMENTS OF GUILT, OF THE LESSER DEGREES OF HOMICIDE AS
WELL AS OF THE OFFENSE CHARGED IN THE INDICTMENT.  PP. 793-796. 

2.  THE RULE ANNOUNCED IN DAVIS V. UNITED STATES, 160 U.S. 469, THAT
AN ACCUSED IS "ENTITLED TO AN ACQUITTAL OF THE SPECIFIC CRIME CHARGED
IF UPON ALL THE EVIDENCE THERE IS REASONABLE DOUBT WHETHER HE WAS
CAPABLE IN LAW OF COMMITTING THE CRIME," ESTABLISHED NO CONSTITUTIONAL
DOCTRINE BUT ONLY THE RULE TO BE FOLLOWED IN FEDERAL COURTS.  P. 797. 

3.  BETWEEN THE OREGON RULE REQUIRING THE ACCUSED, ON A PLEA OF
INSANITY, TO ESTABLISH THAT DEFENSE BEYOND A REASONABLE DOUBT, AND THE
RULE IN EFFECT IN SOME TWENTY STATES, WHICH PLACES THE BURDEN ON THE
ACCUSED TO ESTABLISH HIS INSANITY BY A PREPONDERANCE OF THE EVIDENCE OR
SOME SIMILAR MEASURE OF PERSUASION, THERE IS NO DIFFERENCE OF SUCH
MAGNITUDE AS TO BE SIGNIFICANT IN DETERMINING THE CONSTITUTIONAL
QUESTION HERE PRESENTED.  P. 798. 

4.  THAT A PRACTICE IS FOLLOWED BY A LARGE NUMBER OF STATES IS NOT
CONCLUSIVE AS TO WHETHER IT ACCORDS WITH DUE PROCESS, BUT MAY BE
CONSIDERED IN DETERMINING WHETHER IT "OFFENDS SOME PRINCIPLE OF JUSTICE
SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO BE
RANKED AS FUNDAMENTAL."  P. 798. 

5.  THE INSTANT CASE IS NOT ONE IN WHICH IT IS SOUGHT TO ENFORCE
AGAINST THE STATE A RIGHT WHICH HAS BEEN HELD TO BE SECURED TO
DEFENDANTS IN FEDERAL COURTS BY THE BILL OF RIGHTS.  PP. 798-799. 

6.  OREGON'S POLICY WITH RESPECT TO THE BURDEN OF PROOF ON THE ISSUE
OF SANITY CANNOT BE SAID TO VIOLATE GENERALLY ACCEPTED CONCEPTS OF
BASIC STANDARDS OF JUSTICE.  P. 799. 

7.  TOT V. UNITED STATES, 319 U.S. 463, DOES NOT REQUIRE A DIFFERENT
CONCLUSION FROM THAT HERE REACHED.  P. 799. 

8.  THE CONTENTION THAT THE INSTRUCTIONS TO THE JURY IN THIS CASE MAY
HAVE CONFUSED THE JURY AS TO THE DISTINCTION BETWEEN THE STATE'S BURDEN
OF PROVING PREMEDITATION AND THE OTHER ELEMENTS OF THE CRIME CHARGED
AND APPELLANT'S BURDEN OF PROVING INSANITY, CANNOT BE SUSTAINED.  P.
800. 

9.  DUE PROCESS IS NOT VIOLATED BY THE OREGON STATUTE WHICH PROVIDES
THAT A "MORBID PROPENSITY TO COMMIT PROHIBITED ACTS, EXISTING IN THE
MIND OF A PERSON, WHO IS NOT SHOWN TO HAVE BEEN INCAPABLE OF KNOWING
THE WRONGFULNESS OF SUCH ACTS, FORMS NO DEFENSE TO A PROSECUTION
THEREFOR."  PP. 800-801. 

10.  THE "IRRESISTIBLE IMPULSE" TEST OF LEGAL SANITY IS NOT "IMPLICIT
IN THE CONCEPT OF ORDERED LIBERTY"; AND DUE PROCESS DOES NOT REQUIRE
THE STATE TO ADOPT THAT TEST RATHER THAN THE "RIGHT AND WRONG" TEST. 
PP. 800-801. 

11.  THE TRIAL COURT'S REFUSAL TO REQUIRE THE DISTRICT ATTORNEY TO
MAKE ONE OF APPELLANT'S CONFESSIONS AVAILABLE TO HIS COUNSEL BEFORE
TRIAL DID NOT DENY DUE PROCESS IN THE CIRCUMSTANCES OF THIS CASE.  PP.
801-802. 

LELAND V. OREGON. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

APPELLANT'S CONVICTION OF MURDER, CHALLENGED AS DENYING HIM DUE
PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT, WAS AFFIRMED BY THE
STATE SUPREME COURT.  190 ORE.  598, 227 P.2D 785.  ON APPEAL TO THIS
COURT, AFFIRMED, P. 802. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

APPELLANT WAS CHARGED WITH MURDER IN THE FIRST DEGREE.  HE PLEADED
NOT GUILTY AND GAVE NOTICE OF HIS INTENTION TO PROVE INSANITY.  UPON
TRIAL IN THE CIRCUIT COURT OF MULTNOMAH COUNTY, OREGON, HE WAS FOUND
GUILTY BY A JURY.  IN ACCORDANCE WITH THE JURY'S DECISION NOT TO
RECOMMEND LIFE IMPRISONMENT, APPELLANT RECEIVED A SENTENCE OF DEATH. 
THE SUPREME COURT OF OREGON AFFIRMED.  190 ORE.  598, 227 P.2D 785. 
THE CASE IS HERE ON APPEAL.  28 U.S.C. SEC. 1257(2). 

OREGON STATUTES REQUIRED APPELLANT TO PROVE HIS INSANITY BEYOND A
REASONABLE DOUBT AND MADE A "MORBID PROPENSITY" NO DEFENSE.  (FN1)  THE
PRINCIPAL QUESTIONS IN THIS APPEAL ARE RAISED BY APPELLANT'S
CONTENTIONS THAT THESE STATUTES DEPRIVE HIM OF HIS LIFE AND LIBERTY
WITHOUT DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT. 

THE FACTS OF THE CRIME WERE REVEALED BY APPELLANT'S CONFESSIONS, AS
CORROBORATED BY OTHER EVIDENCE.  HE KILLED A FIFTEEN-YEAR-OLD GIRL BY
STRIKING HER OVER THE HEAD SEVERAL TIMES WITH A STEEL BAR AND STABBING
HER TWICE WITH A HUNTING KNIFE.  UPON BEING ARRESTED FIVE DAYS LATER
FOR THE THEFT OF AN AUTOMOBILE, HE ASKED TO TALK WITH A HOMICIDE
OFFICER, VOLUNTARILY CONFESSED THE MURDER, AND DIRECTED THE POLICE TO
THE SCENE OF THE CRIME, WHERE HE POINTED OUT THE LOCATION OF THE BODY. 
ON THE SAME DAY, HE SIGNED A FULL CONFESSION AND, AT HIS OWN REQUEST,
MADE ANOTHER IN HIS OWN HANDWRITING.  AFTER HIS INDICTMENT, COUNSEL
WERE APPOINTED TO REPRESENT HIM.  THEY HAVE DONE SO WITH DILIGENCE IN
CARRYING HIS CASE THROUGH THREE COURTS. 

ONE OF THE OREGON STATUTES IN QUESTION PROVIDES: 

"WHEN THE COMMISSION OF THE ACT CHARGED AS A CRIME IS PROVEN, AND THE
DEFENSE SOUGHT TO BE ESTABLISHED IS THE INSANITY OF THE DEFENDANT, THE
SAME MUST BE PROVEN BEYOND A REASONABLE DOUBT  ...  ."  (FN2)

APPELLANT URGES THAT THIS STATUTE IN EFFECT REQUIRES A DEFENDANT
PLEADING INSANITY TO ESTABLISH HIS INNOCENCE BY DISPROVING BEYOND A
REASONABLE DOUBT ELEMENTS OF THE CRIME NECESSARY TO A VERDICT OF
GUILTY, AND THAT THE STATUTE IS THEREFORE VIOLATIVE OF THAT DUE PROCESS
OF LAW SECURED BY THE FOURTEENTH AMENDMENT.  TO DETERMINE THE MERIT OF
THIS CHALLENGE, THE STATUTE MUST BE VIEWED IN ITS RELATION TO OTHER
RELEVANT OREGON LAW AND IN ITS PLACE IN THE TRIAL OF THIS CASE. 

IN CONFORMITY WITH THE APPLICABLE STATE LAW, (FN3) THE TRIAL JUDGE
INSTRUCTED THE JURY THAT, ALTHOUGH APPELLANT WAS CHARGED WITH MURDER IN
THE FIRST DEGREE, THEY MIGHT DETERMINE THAT HE HAD COMMITTED A LESSER
CRIME INCLUDED IN THAT CHARGED.  THEY WERE FURTHER INSTRUCTED THAT HIS
PLEA OF NOT GUILTY PUT IN ISSUE EVERY MATERIAL AND NECESSARY ELEMENT OF
THE LESSER DEGREES OF HOMICIDE, AS WELL AS OF THE OFFENSE CHARGED IN
THE INDICTMENT.  THE JURY COULD HAVE RETURNED ANY OF FIVE VERDICTS. 
(FN4)  (1) GUILTY OF MURDER IN THE FIRST DEGREE, IF THEY FOUND BEYOND A
REASONABLE DOUBT THAT APPELLANT DID THE KILLING PURPOSELY AND WITH
DELIBERATE AND PREMEDITATED MALICE; (2) GUILTY OF MURDER IN THE SECOND
DEGREE, IF THEY FOUND BEYOND A REASONABLE DOUBT THAT APPELLANT DID THE
KILLING PURPOSELY AND MALICIOUSLY, BUT WITHOUT DELIBERATION AND
PREMEDITATION; (3) GUILTY OF MANSLAUGHTER, IF THEY FOUND BEYOND A
REASONABLE DOUBT THAT APPELLANT DID THE KILLING WITHOUT MALICE OR
DELIBERATION, BUT UPON A SUDDEN HEAT OF PASSION CAUSED BY A PROVOCATION
APPARENTLY SUFFICIENT TO MAKE THE PASSION IRRESISTIBLE; (4) NOT GUILTY,
IF, AFTER A CAREFUL CONSIDERATION OF ALL THE EVIDENCE, THERE REMAINED
IN THEIR MINDS A REASONABLE DOUBT AS TO THE EXISTENCE OF ANY OF THE
NECESSARY ELEMENTS OF EACH DEGREE OF HOMICIDE; AND (5) NOT GUILTY BY
REASON OF INSANITY, IF THEY FOUND BEYOND A REASONABLE DOUBT THAT
APPELLANT WAS INSANE AT THE TIME THE OFFENSE CHARGED.  A FINDING OF
INSANITY WOULD HAVE FREED APPELLANT FROM RESPONSIBILITY FOR ANY OF THE
POSSIBLE OFFENSES.   THE VERDICT WHICH THE JURY DETERMINED - GUILTY OF
FIRST DEGREE MURDER - REQUIRED THE AGREEMENT OF ALL TWELVE JURORS; A
VERDICT OF NOT GUILTY BY REASON OF INSANITY WOULD HAVE REQUIRED THE
CONCURRENCE OF ONLY TEN MEMBERS OF THE PANEL.  (FN5) 

IT IS APPARENT THAT THE JURY MIGHT HAVE FOUND APPELLANT TO HAVE BEEN
MENTALLY INCAPABLE OF THE PREMEDITATION AND DELIBERATION REQUIRED TO
SUPPORT A FIRST DEGREE MURDER VERDICT OR OF THE INTENT NECESSARY TO
FIND HIM GUILTY OF EITHER FIRST OR SECOND DEGREE MURDER, AND YET NOT
HAVE FOUND HIM TO HAVE BEEN LEGALLY INSANE.  ALTHOUGH A PLEA OF
INSANITY WAS MADE, THE PROSECUTION WAS REQUIRED TO PROVE BEYOND A
REASONABLE DOUBT EVERY ELEMENT OF THE CRIME CHARGED, INCLUDING, IN THE
CASE OF FIRST DEGREE MURDER, PREMEDITATION, DELIBERATION, MALICE AND
INTENT.  (FN6)  THE TRIAL COURT REPEATEDLY EMPHASIZED THIS REQUIREMENT
IN ITS CHARGE TO THE JURY.  (FN7)  MOREOVER, THE JUDGE DIRECTED THE
JURY AS FOLLOWS: 

"I INSTRUCT YOU THAT THE EVIDENCE ADDUCED DURING THIS TRIAL TO PROVE
DEFENDANT'S INSANITY SHALL BE CONSIDERED AND WEIGHED BY YOU, WITH ALL
OTHER EVIDENCE, WHETHER OR NOT YOU FIND DEFENDANT INSANE, IN REGARD TO
THE ABILITY OF THE DEFENDANT TO PREMEDITATE, FORM A PURPOSE, TO
DELIBERATE, ACT WILFULLY, AND ACT MALICIOUSLY; AND IF YOU FIND THE
DEFENDANT LACKING IN SUCH ABILITY, THE DEFENDANT CANNOT HAVE COMMITTED
THE CRIME OF MURDER IN THE FIRST DEGREE. 

"I INSTRUCT YOU THAT SHOULD YOU FIND THE DEFENDANT'S MENTAL CONDITION
TO BE SO AFFECTED OR DISEASED TO THE END THAT THE DEFENDANT COULD
FORMULATE NO PLAN, DESIGN, OR INTENT TO KILL IN COOL BLOOD, THE
DEFENDANT HAS NOT COMMITTED THE CRIME OF MURDER IN THE FIRST DEGREE." 
(FN8) 

THESE AND OTHER INSTRUCTIONS, AND THE CHARGE AS A WHOLE, MAKE IT
CLEAR THAT THE BURDEN OF PROOF OF GUILT, AND OF ALL THE NECESSARY
ELEMENTS OF GUILT, WAS PLACED SQUARELY UPON THE STATE.  AS THE JURY WAS
TOLD, THIS BURDEN DID NOT SHIFT, BUT RESTED UPON THE STATE THROUGHOUT
THE TRIAL, JUST AS, ACCORDING TO THE INSTRUCTIONS, APPELLANT WAS
PRESUMED TO BE INNOCENT UNTIL THE JURY WAS CONVINCED BEYOND A
REASONABLE DOUBT THAT HE WAS GUILTY.  (FN9)  THE JURORS WERE TO
CONSIDER SEPARATELY THE ISSUE OF LEGAL SANITY PER SE - AN ISSUE SET
APART FROM THE CRIME CHARGED, TO BE INTRODUCED BY A SPECIAL PLEA AND
DECIDED BY A SPECIAL VERDICT.  (FN10)  ON THIS ISSUE APPELLANT HAD THE
BURDEN OF PROOF UNDER THE STATUTE IN QUESTION HERE. 

BY THIS STATUTE, ORIGINALLY ENACTED IN 1864, (FN11) OREGON ADOPTED
THE PREVAILING DOCTRINE OF THE TIME - THAT, SINCE MOST MEN ARE SANE, A
DEFENDANT MUST PROVE HIS INSANITY TO AVOID RESPONSIBILITY FOR HIS
ACTS.  THAT WAS THE RULE ANNOUNCED IN 1843 IN THE LEADING ENGLISH
DECISION IN M'NAGHTEN'S CASE: 

"THE JURORS OUGHT TO BE TOLD IN ALL CASES THAT EVERY MAN IS TO BE
PRESUMED TO BE SANE, AND TO POSSESS A SUFFICIENT DEGREE OF REASON TO BE
RESPONSIBLE FOR HIS CRIMES, UNTIL THE CONTRARY BE PROVED TO THEIR
SATISFACTION; AND  ...  TO ESTABLISH A DEFENCE ON THE GROUND OF
INSANITY, IT MUST BE CLEARLY PROVED THAT, AT THE TIME OF THE COMMITTING
OF THE ACT, THE PARTY ACCUSED WAS LABORING UNDER SUCH A DEFECT OF
REASON, FROM DISEASE OF THE MIND, AS NOT TO KNOW THE NATURE AND QUALITY
OF THE ACT HE WAS DOING  ...  ."  (FN12) 

THIS REMAINS THE ENGLISH VIEW TODAY.  (FN13)  IN MOST OF THE
NINETEENTH-CENTURY AMERICAN CASES, ALSO, THE DEFENDANT WAS REQUIRED TO
"CLEARLY" PROVE INSANITY, (FN14) AND THAT WAS PROBABLY THE RULE
FOLLOWED IN MOST STATES IN 1895, (FN15) WHEN DAVIS V. UNITED STATES WAS
DECIDED.  IN THAT CASE THIS COURT, SPEAKING THROUGH MR. JUSTICE HARLAN,
ANNOUNCED THE RULE FOR FEDERAL PROSECUTIONS TO BE THAT AN ACCUSED IS
"ENTITLED TO AN ACQUITTAL OF THE SPECIFIC CRIME CHARGED IF UPON ALL THE
EVIDENCE THERE IS REASONABLE DOUBT WHETHER HE WAS CAPABLE IN LAW OF
COMMITTING CRIME."  (FN16)  IN REACHING THAT CONCLUSION, THE COURT
OBSERVED: 

"THE VIEWS WE HAVE EXPRESSED ARE SUPPORTED BY MANY ADJUDICATIONS THAT
ARE ENTITLED TO HIGH RESPECT.  IF SUCH WERE NOT THE FACT, WE MIGHT HAVE
FELT OBLIGED TO ACCEPT THE GENERAL DOCTRINE ANNOUNCED IN SOME OF THE
ABOVE CASES; FOR IT IS DESIRABLE THAT THERE BE UNIFORMITY OF RULE IN
THE ADMINISTRATION OF THE CRIMINAL LAW IN GOVERNMENTS WHOSE
CONSTITUTIONS EQUALLY RECOGNIZE THE FUNDAMENTAL PRINCIPLES THAT ARE
DEEMED ESSENTIAL FOR THE PROTECTION OF LIFE AND LIBERTY."  (FN17) 

THE DECISION OBVIOUSLY ESTABLISHES NO CONSTITUTIONAL DOCTRINE, BUT
ONLY THE RULE TO BE FOLLOWED IN FEDERAL COURTS.  AS SUCH, THE RULE IS
NOT IN QUESTION HERE. 

TODAY, OREGON IS THE ONLY STATE THAT REQUIRES THE ACCUSED, ON A PLEA
OF INSANITY, TO ESTABLISH THAT DEFENSE BEYOND A REASONABLE DOUBT.  SOME
TWENTY STATES, HOWEVER, PLACE THE BURDEN ON THE ACCUSED TO ESTABLISH
HIS INSANITY BY A PREPONDERANCE OF THE EVIDENCE OR SOME SIMILAR MEASURE
OF PERSUASION.  (FN18)  WHILE THERE IS AN EVIDENT DISTINCTION BETWEEN
THESE TWO RULES AS TO THE QUANTUM OF PROOF REQUIRED, WE SEE NO
PRACTICAL DIFFERENCE OF SUCH MAGNITUDE AS TO BE SIGNIFICANT IN
DETERMINING THE CONSTITUTIONAL QUESTION WE FACE HERE.  OREGON MERELY
REQUIRES A HEAVIER BURDEN OF PROOF.  IN EACH INSTANCE, IN ORDER TO
ESTABLISH INSANITY AS A COMPLETE DEFENSE TO THE CHARGES PREFERRED, THE
ACCUSED MUST PROVE THAT INSANITY.  THE FACT THAT A PRACTICE IS FOLLOWED
BY A LARGE NUMBER OF STATES IS NOT CONCLUSIVE IN A DECISION AS TO
WHETHER THAT PRACTICE ACCORDS WITH DUE PROCESS, BUT IT IS PLAINLY WORTH
CONSIDERING IN DETERMINING WHETHER THE PRACTICE "OFFENDS SOME PRINCIPLE
OF JUSTICE SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS
TO BE RANKED AS FUNDAMENTAL."  SNYDER V. MASSACHUSETTS, 291 U.S. 97,
105 (1934). 

NOR IS THIS A CASE IN WHICH IT IS SOUGHT TO ENFORCE AGAINST THE
STATES A RIGHT WHICH WE HAVE HELD TO BE SECURED TO DEFENDANTS IN
FEDERAL COURTS BY THE BILL OF RIGHTS.  IN DAVIS V. UNITED STATES,
SUPRA, WE ADOPTED A RULE OF PROCEDURE FOR THE FEDERAL COURTS WHICH IS
CONTRARY TO THAT OF OREGON.  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. MASSACHUSETTS, SUPRA, AT 105. 
"THE JUDICIAL JUDGMENT IN APPLYING THE DUE PROCESS CLAUSE MUST MOVE
WITHIN THE LIMITS OF ACCEPTED NOTIONS OF JUSTICE AND IS NOT TO BE BASED
UPON THE IDIOSYNCRASIES OF A MERELY PERSONAL JUDGMENT  ...  .  AN
IMPORTANT SAFEGUARD AGAINST SUCH MERELY INDIVIDUAL JUDGMENT IS AN ALERT
DEFERENCE TO THE JUDGMENT OF THE STATE COURT UNDER REVIEW."  MR.
JUSTICE FRANKFURTER, CONCURRING IN MALINSKI V. NEW YORK, 324 U.S. 401,
417 (1945).  WE ARE THERFORE RELUCTANT TO INTERFERE WITH OREGON'S
DETERMINATION OF ITS POLICY WITH RESPECT TO THE BURDEN OF PROOF ON THE
ISSUE OF SANITY SINCE WE CANNOT SAY THAT POLICY VIOLATES GENERALLY
ACCEPTED CONCEPTS OF BASIC STANDARDS OF JUSTICE. 

NOTHING SAID IN TOT V. UNITED STATES, 319 U.S. 463 (1943), SUGGESTS A
DIFFERENT CONCLUSION.  THAT DECISION STRUCK DOWN A SPECIFIC PRESUMPTION
CREATED BY CONGRESSIONAL ENACTMENT.  THIS COURT FOUND THAT THE FACT
THUS REQUIRED TO BE PRESUMED HAD NO RATIONAL CONNECTION WITH THE FACT
WHICH, WHEN PROVEN, SET THE PRESUMPTION IN OPERATION, AND THAT THE
STATUTE RESULTED IN A PRESUMPTION OF GUILT BASED ONLY UPON PROOF OF A
FACT NEITHER CRIMINAL IN ITSELF NOR AN ELEMENT OF THE CRIME CHARGED. 
WE HAVE SEEN THAT, HERE, OREGON REQUIRED THE PROSECUTOR TO PROVE BEYOND
A REASONABLE DOUBT EVERY ELEMENT OF THE OFFENSE CHARGED.  ONLY ON THE
ISSUE OF INSANITY AS AN ABSOLUTE BAR TO THE CHARGE WAS THE BURDEN
PLACED UPON APPELLANT.  IN ALL ENGLISH-SPEAKING COURTS, THE ACCUSED IS
OBLIGED TO INTRODUCE PROOF IF HE WOULD OVERCOME THE PRESUMPTION OF
SANITY.  (FN19) 

IT IS CONTENDED THAT THE INSTRUCTIONS MAY HAVE CONFUSED THE JURY AS
TO THE DISTINCTION BETWEEN THE STATE'S BURDEN OF PROVING PREMEDITATION
AND THE OTHER ELEMENTS OF THE CHARGE AND APPELLANT'S BURDEN OF PROVING
INSANITY.  WE THINK THE CHARGE TO THE JURY WAS AS CLEAR AS INSTRUCTIONS
TO JURIES ORDINARILY ARE OR REASONABLY CAN BE, AND, WITH RESPECT TO THE
STATE'S BURDEN OF PROOF UPON ALL THE ELEMENTS OF THE CRIME, THE CHARGE
WAS PARTICULARLY EMPHATIC.  JURIES HAVE FOR CENTURIES MADE THE BASIC
DECISIONS BETWEEN GUILT AND INNOCENCE AND BETWEEN CRIMINAL
RESPONSIBILITY AND LEGAL INSANITY UPON THE BASIS OF FACTS, AS REVEALED
BY ALL THE EVIDENCE, AND THE LAW, AS EXPLAINED BY INSTRUCTIONS
DETAILING THE LEGAL DISTINCTIONS, THE PLACEMENT AND WEIGHT OF THE
BURDEN OF PROOF, THE EFFECT OF PRESUMPTIONS, THE MEANING OF INTENT,
ETC.  WE THINK THAT TO CONDEMN THE OPERATION OF THIS SYSTEM HERE WOULD
BE TO CONDEMN THE SYSTEM GENERALLY.  WE ARE NOT PREPARED TO DO SO. 

MUCH WE HAVE SAID APPLIES ALSO TO APPELLANT'S CONTENTION THAT DUE
PROCESS IS VIOLATED BY THE OREGON STATUTE PROVIDING THAT A "MORBID
PROPENSITY TO COMMIT PROHIBITED ACTS, EXISTING IN THE MIND OF A PERSON,
WHO IS NOT SHOWN TO HAVE BEEN INCAPABLE OF KNOWING THE WRONGFULNESS OF
SUCH ACTS, FORMS NO DEFENSE TO A PROSECUTION THEREFOR."  (FN20)  THAT
STATUTE AMOUNTS TO NO MORE THAN A LEGISLATIVE ADOPTION OF THE "RIGHT
AND WRONG" TEST OF LEGAL INSANITY IN PREFERENCE TO THE "IRRESISTIBLE
IMPULSE" TEST.  (FN21)  KNOWLEDGE OF RIGHT AND WRONG IS THE EXCLUSIVE
TEST OF CRIMINAL RESPONSIBILITY IN A MAJORITY OF AMERICAN
JURISDICTIONS.  (FN22)  THE SCIENCE OF PSYCHIATRY HAS MADE TREMENDOUS
STRIDES SINCE THAT TEST WAS LAID DOWN IN M'NAGHTEN'S CASE, (FN23) BUT
THE PROGRESS OF SCIENCE HAS NOT REACHED A POINT WHERE ITS LEARNING
WOULD COMPEL US TO REQUIRE THE STATES TO ELIMINATE THE RIGHT AND WRONG
TEST FROM THEIR CRIMINAL LAW.  (FN24)  MOREOVER, CHOICE OF A TEST OF
LEGAL SANITY INVOLVES NOT ONLY SCIENTIFIC KNOWLEDGE BUT QUESTIONS OF
BASIC POLICY AS TO THE EXTENT TO WHICH THAT KNOWLEDGE SHOULD DETERMINE
CRIMINAL RESPONSIBILITY.  (FN25)  THIS WHOLE PROBLEM HAS EVOKED WIDE
DISAGREEMENT AMONG THOSE WHO HAVE STUDIED IT. IN THESE CIRCUMSTANCES IT
IS CLEAR THAT ADOPTION OF THE IRRESISTIBLE IMPULSE TEST IS NOT
"IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY."  (FN26) 

APPELLANT ALSO CONTENDS THAT THE TRIAL COURT'S REFUSAL TO REQUIRE THE
DISTRICT ATTORNEY TO MAKE ONE OF APPELLANT'S CONFESSIONS AVAILABLE TO
HIS COUNSEL BEFORE TRIAL WAS CONTRARY TO DUE PROCESS.  WE THINK THERE
IS NO SUBSTANCE IN THIS ARGUMENT.  THIS CONCLUSION IS BUTTRESSED BY THE
ABSENCE OF ANY ASSIGNMENT OF ERROR ON THIS GROUND IN APPELLANT'S MOTION
FOR A NEW TRIAL.  COMPARE AVERY V. ALABAMA, 308 U.S. 444, 452 (1940). 
WHILE IT MAY BE THE BETTER PRACTICE FOR THE PROSECUTION THUS TO EXHIBIT
A CONFESSION, FAILURE TO DO SO IN THIS CASE IN NO WAY DENIED APPELLANT
A FAIR TRIAL.  THE RECORD SHOWS THAT THE CONFESSION WAS PRODUCED IN
COURT FIVE DAYS BEFORE APPELLANT RESTED HIS CASE.  THERE WAS AMPLE TIME
BOTH FOR COUNSEL AND EXPERT WITNESSES TO STUDY THE CONFESSION.  IN
ADDITION THE TRIAL JUDGE OFFERED FURTHER TIME FOR THAT PURPOSE BUT IT
WAS REFUSED.  THERE IS NO INDICATION IN THE RECORD THAT APPELLANT WAS
PREJUDICED BY THE INABILITY OF HIS COUNSEL TO ACQUIRE EARLIER ACCESS TO
THE CONFESSION.  AFFIRMED. 

FN1  ORE.  COMP.  LAWS, 1940, SECS. 26-929, 23-122. 

FN2  ID., SEC. 26-929. 

FN3  ID., SECS. 26-947, 26-948. 

FN4  SIX POSSIBLE VERDICTS WERE LISTED IN THE INSTRUCTIONS, GUILTY OF
MURDER IN THE FIRST DEGREE BEING DIVIDED INTO TWO VERDICTS:  WITH, AND
WITHOUT, RECOMMENDATION OF LIFE IMPRISONMENT AS THE PENALTY.  SINCE THE
JURY IN THIS CASE DID NOT RECOMMEND THAT PUNISHMENT, THE DEATH SENTENCE
WAS AUTOMATICALLY INVOKED UNDER OREGON LAW.  ID., SEC. 23-411. 

FN5  THE AGREEMENT OF TEN JURORS WOULD ALSO HAVE BEEN SUFFICIENT FOR
A VERDICT OF NOT GUILTY, A VERDICT OF GUILTY OF SECOND DEGREE MURDER,
OR A VERDICT OF GUILTY OF MANSLAUGHTER.  R. 333-334. 

FN6  ORE.  COMP.  LAWS, 1940, SECS. 23-401, 23-414, 26-933; CF. STATE
V. BUTCHEK, 121 ORE.  141, 253 P. 367, 254 P. 805 (1927). 

FN7  R. 321, 323, 324, 330, 331, 332. 

FN8  R. 330.  AGAIN: 

"I INSTRUCT YOU THAT TO CONSTITUTE MURDER IN THE FIRST DEGREE, IT IS
NECESSARY THAT THE STATE PROVE BEYOND A REASONABLE DOUBT, AND TO YOUR
MORAL CERTAINTY, THAT THE DEFENDANT'S DESIGN OR PLAN TO TAKE LIFE WAS
FORMED AND MATURED IN COOL BLOOD AND NOT HASTILY UPON THE OCCASION. 

"I INSTRUCT YOU THAT IN DETERMINING WHETHER OR NOT THE DEFENDANT
ACTED PURPOSELY AND WITH PREMEDITATED AND DELIBERATED MALICE, IT IS
YOUR DUTY TO TAKE INTO CONSIDERATION DEFENDANT'S MENTAL CONDITION AND
ALL FACTORS RELATING THERETO, AND THAT EVEN THOUGH YOU MAY NOT FIND HIM
LEGALLY INSANE, IF, IN FACT, HIS MENTALITY WAS IMPAIRED, THAT EVIDENCE
BEARS UPON THESE FACTORS, AND IT IS YOUR DUTY TO CONSIDER THIS EVIDENCE
ALONG WITH ALL THE OTHER EVIDENCE IN THE CASE."  R. 332. 

FN9  R. 321, 324. 

FN10  ORE.  COMP.  LAWS, 1940, SEC. 26-846 (REQUIRING NOTICE OF
PURPOSE TO SHOW INSANITY AS DEFENSE); ID., SEC. 26-955 (PROVIDING FOR
VERDICT OF NOT GUILTY BY REASON OF INSANITY AND CONSEQUENT COMMITMENT
TO ASYLUM BY JUDGE).  AFTER DEFINING LEGAL INSANITY, THE TRIAL COURT
INSTRUCTED THE JURY:

"IN THIS CASE, EVIDENCE HAS BEEN INTRODUCED RELATING TO THE MENTAL
CAPACITY AND CONDITION OF THE DEFENDANT  ...  AT THE TIME THE GIRL IS
ALLEGED TO HAVE BEEN KILLED, AND IF YOU ARE SATISFIED BEYOND A
REASONABLE DOUBT THAT THE DEFENDANT KILLED HER IN THE MANNER ALLEGED IN
THE INDICTMENT, OR WITHIN THE LESSER DEGREES INCLUDED THEREIN, THEN YOU
ARE TO CONSIDER THE MENTAL CAPACITY OF THE DEFENDANT AT THE TIME THE
HOMICIDE IS ALLEGED TO HAVE BEEN COMMITTED."  R. 327. 

FN11  DEADY'S GEN. LAWS OF ORE., 1845-1864, CODE OF CRIM. PROC., SEC.
204. 

FN12  10 CL. & FIN.  200, 210 (H.L., 1843). 

FN13  STEPHEN, DIGEST OF THE CRIMINAL LAW (9TH ED., STURGE, 1950), 6;
CF. SODEMAN V. THE KING, (1936) W.N. 190 (P.C.); SEE WOOLMINGTON V.
DIRECTOR OF PUBLIC PROSECUTIONS, (1935) A.C. 462, 475. 

FN14  WEIHOFEN, INSANITY AS A DEFENSE IN CRIMINAL LAW (1933), 151
155.  "CLEAR PROOF" WAS SOMETIMES INTERPRETED TO MEAN PROOF BEYOND A
REASONABLE DOUBT, E.G., STATE V. DE RANCE, 34 LA. ANN. 186 (1882), AND
SOMETIMES TO MEAN PROOF BY A PREPONDERANCE OF THE EVIDENCE, E.G., HURST
V. STATE, 40 TEX. CF. R. 383, 50 S.W. 719 (1899). 

FN15  SEE WHARTON, CRIMINAL EVIDENCE (9TH ED. 1884), SECS. 336-340. 

FN16  160 U.S. 469, 484 (1895); SEE HOTEMA V. UNITED STATES, 186 U.S.
413 (1902); MATHESON V. UNITED STATES, 227 U.S. 540 (1913). 

FN17  ID., AT 488. 

FN18  WEIHOFEN LISTS TWELVE STATES AS REQUIRING PROOF BY A
PREPONDERANCE OF THE EVIDENCE, FOUR AS REQUIRING PROOF "TO THE
SATISFACTION OF THE JURY," TWO WHICH COMBINE THESE FORMULAE, ONE WHERE
BY STATUTE THE DEFENSE MUST BE "CLEARLY PROVED TO THE REASONABLE
SATISFACTION OF THE JURY," ONE WHERE IT HAS BEEN HELD THAT THE JURY
MUST "BELIEVE" THE DEFENDANT INSANE, AND ONE WHERE THE QUANTUM OF PROOF
HAS NOT BEEN STATED BY THE COURT OF LAST RESORT, BUT WHICH APPEARS TO
FOLLOW THE PREPONDERANCE RULE.  WEIHOFEN, INSANITY AS A DEFENSE IN
CRIMINAL LAW (1933), 148-151, 172-200.  TWENTY-TWO STATES, INCLUDING
OREGON, ARE MENTIONED AS HOLDING THAT THE ACCUSED HAS THE BURDEN OF
PROVING INSANITY, AT LEAST BY A PREPONDERANCE OF THE EVIDENCE, IN 9
WIGMORE, EVIDENCE (3D ED. 1940 AND SUPP. 1951), SEC. 2501. 

FN19  WEIHOFEN, INSANITY AS A DEFENSE IN CRIMINAL LAW (1933), 161; 9
WIGMORE, EVIDENCE (3D ED. 1940), SEC. 2501. 

FN20  ORE.  COMP.  LAWS, 1940, SEC. 23-122. 

FN21  STATE V. GARVER, 190 ORE.  291, 225 P.2D 771 (1950); STATE V.
WALLACE, 170 ORE.  60, 131 P.2D 222 (1942); STATE V. HASSING, 60 ORE. 
81, 118 P. 195 (1911). 

FN22  WEIHOFEN, INSANITY AS A DEFENSE IN CRIMINAL LAW (1933), 15, 64
68, 109-147. 

FN23  10 CL. & FIN.  200 (H.L., 1843). 

FN24  COMPARE FISHER V. UNITED STATES, 328 U.S. 463, 475-476 (1946). 

FN25  SEE HOLLOWAY V. UNITED STATES, 80 U.S. APP. D.C. 3, 148 F.2D
665 (1945); GLUECK, MENTAL DISORDER AND THE CRIMINAL LAW (1925); HALL,
MENTAL DISEASE AND CRIMINAL RESPONSIBILITY, 45 COL. L. REV. 677 (1945);
KEEDY, INSANITY AND CRIMINAL RESPONSIBILITY, 30 HARV. L. REV.  535, 724
(1917). 

FN 26  PALKO V. CONNECTICUT, 302 U.S. 319, 325 (1937). 

MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE BLACK, DISSENTING. 

HOWEVER MUCH CONDITIONS MAY HAVE IMPROVED SINCE 1905, WHEN WILLIAM H.
(LATER MR. CHIEF JUSTICE) TAFT EXPRESSED HIS DISTURBING CONVICTION
"THAT THE ADMINISTRATION OF THE CRIMINAL LAW IN ALL THE STATES IN THE
UNION (THERE MAY BE ONE OR TWO EXCEPTIONS) IS A DISGRACE TO OUR
CIVILIZATION" (TAFT, THE ADMINISTRATION OF CRIMINAL LAW, 15 YALE L.J.1,
11), NO INFORMED PERSON CAN BE OTHER THAN UNHAPPY ABOUT THE SERIOUS
DEFECTS OF PRESENTDAY AMERICAN CRIMINAL JUSTICE.  IT IS NOT UNTHINKABLE
THAT FAILURE TO BRING THE GUILTY TO BOOK FOR A HEINOUS CRIME WHICH
DEEPLY STIRS POPULAR SENTIMENT MAY LEAD THE LEGISLATURE OF A STATE, IN
ONE OF THOSE EMOTIONAL STORMS WHICH ON OCCASION SWEEP OVER OUR PEOPLE,
TO ENACT THAT THEREAFTER AN INDICTMENT FOR MURDER, FOLLOWING ATTEMPTED
RAPE, SHOULD BE PRESUMPTIVE PROOF OF GUILT AND CAST UPON THE DEFENDANT
THE BURDEN OF PROVING BEYOND A REASONABLE DOUBT THAT HE DID NOT DO THE
KILLING.  CAN THERE BE ANY DOUBT THAT SUCH A STATUTE WOULD GO BEYOND
THE FREEDOM OF THE STATES, UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, TO FASHION THEIR OWN PENAL CODES AND THEIR OWN
PROCEDURES FOR ENFORCING THEM?  WHY IS THAT SO?  BECAUSE FROM THE TIME
THAT THE LAW WHICH WE HAVE INHERITED HAS EMERGED FROM DARK AND BARBARIC
TIMES, THE CONCEPTION OF JUSTICE WHICH HAS DOMINATED OUR CRIMINAL LAW
HAS REFUSED TO PUT AN ACCUSED AT THE HAZARD OF PUNISHMENT IF HE FAILS
TO REMOVE EVERY REASONABLE DOUBT OF HIS INNOCENCE IN THE MINDS OF
JURORS.  IT IS THE DUTY OF THE GOVERNMENT TO ESTABLISH HIS GUILT BEYOND
A REASONABLE DOUBT.  THIS NOTION - BASIC IN OUR LAW AND RIGHTLY ONE OF
THE BOASTS OF A FREE SOCIETY - IS A REQUIREMENT AND A SAFEGUARD OF DUE
PROCESS OF LAW IN THE HISTORIC, PROCEDURAL CONTENT OF "DUE PROCESS." 
ACCORDINGLY THERE CAN BE NO DOUBT, I REPEAT, THAT A STATE CANNOT CAST
UPON AN ACCUSED THE DUTY OF ESTABLISHING BEYOND A REASONABLE DOUBT THAT
HIS WAS NOT THE ACT WHICH CAUSED THE DEATH OF ANOTHER. 

BUT A MUSCULAR CONTRACTION RESULTING IN A HOMICIDE DOES NOT
CONSTITUTE MURDER.  EVEN THOUGH A PERSON BE THE IMMEDIATE OCCASION OF
ANOTHER'S DEATH, HE IS NOT A DEODAND TO BE FORFEITED LIKE A THING IN
THE MEDIEVAL LAW.  BEHIND A MUSCULAR CONTRACTION RESULTING IN ANOTHER'S
DEATH THERE MUST BE CULPABILITY TO TURN HOMICIDE INTO MURDER. 

THE TESTS BY WHICH SUCH CULPABILITY MAY BE DETERMINED ARE VARYING AND
CONFLICTING.  ONE DOES NOT HAVE TO ECHO THE SCEPTICISM UTTERED BY
BRIAN, C.J., IN THE FIFTEENTH CENTURY, THAT "THE DEVIL HIMSELF KNOWETH
NOT THE MIND OF MEN" TO APPRECIATE HOW VAST A DARKNESS STILL ENVELOPES
MAN'S UNDERSTANDING OF MAN'S MIND.  SANITY AND INSANITY ARE CONCEPTS OF
INCERTITUDE.  THEY ARE GIVEN VARYING AND CONFLICTING CONTENT AT THE
SAME TIME AND FROM TIME TO TIME BY SPECIALISTS IN THE FIELD.  NATURALLY
THERE HAS ALWAYS BEEN CONFLICT BETWEEN THE PSYCHOLOGICAL VIEWS ABSORBED
BY LAW AND THE CONTRADICTORY VIEWS OF STUDENTS OF MENTAL HEALTH AT A
PARTICULAR TIME.  AT THIS STAGE OF SCIENTIFIC KNOWLEDGE IT WOULD BE
INDEFENSIBLE TO IMPOSE UPON THE STATES, THROUGH THE DUE PROCESS OF LAW
WHICH THEY MUST ACCORD BEFORE DEPRIVING A PERSON OF LIFE OR LIBERTY,
ONE TEST RATHER THAN ANOTHER FOR DETERMINING CRIMINAL CULPABILITY, AND
THEREBY TO DISPLACE A STATE'S OWN CHOICE OF SUCH A TEST, NO MATTER HOW
BACKWARD IT MAY BE IN THE LIGHT OF THE BEST SCIENTIFIC CANONS. 
INEVITABLY, THE LEGAL TESTS FOR DETERMINING THE MENTAL STATE ON WHICH
CRIMINAL CULPABILITY IS TO BE BASED ARE IN STRONG CONFLICT IN OUR FORTY
EIGHT STATES.  BUT WHEN A STATE HAS CHOSEN ITS THEORY FOR TESTING
CULPABILITY, IT IS A DEPRIVATION OF LIFE WITHOUT DUE PROCESS TO SEND A
MAN TO HIS DOOM IF HE CANNOT PROVE BEYOND A REASONABLE DOUBT THAT THE
PHYSICAL EVENTS OF HOMICIDE DID NOT CONSTITUTE MURDER BECAUSE UNDER THE
STATE'S THEORY HE WAS INCAPABLE OF ACTING CULPABLY. 

THIS DOES NOT PRECLUDE STATES FROM UTILIZING COMMON SENSE REGARDING
MENTAL IRRESPONSIBILITY FOR ACTS RESULTING IN HOMICIDE - FROM TAKING
FOR GRANTED THAT MOST MEN ARE SANE AND RESPONSIBLE FOR THEIR ACTS. 
THAT A MAN'S ACT IS NOT HIS, BECAUSE HE IS DEVOID OF THAT MENTAL STATE
WHICH BEGETS CULPABILITY, IS SO EXCEPTIONAL A SITUATION THAT THE LAW
HAS A RIGHT TO DEVISE AN EXCEPTIONAL PROCEDURE REGARDING IT.
ACCORDINGLY, STATES MAY PROVIDE VARIOUS WAYS FOR DEALING WITH THIS
EXCEPTIONAL SITUATION BY REQUIRING, FOR INSTANCE, THAT THE DEFENSE OF
"INSANITY" BE SPECIALLY PLEADED, OR THAT HE ON WHOSE BEHALF THE CLAIM
OF INSANITY IS MADE SHOULD HAVE THE BURDEN OF SHOWING ENOUGH TO
OVERCOME THE ASSUMPTION AND PRESUMPTION THAT NORMALLY A MAN KNOWS WHAT
HE IS ABOUT AND IS THEREFORE RESPONSIBLE FOR WHAT HE DOES, OR THAT THE
ISSUE BE SEPARATELY TRIED, OR THAT A STANDING DISINTERESTED EXPERT
AGENCY ADVISE COURT AND JURY, OR THAT THESE AND OTHER DEVICES BE USED
IN COMBINATION.  THE LAWS OF THE FORTY-EIGHT STATES PRESENT THE
GREATEST DIVERSITY IN RELIEVING THE PROSECUTION FROM PROVING
AFFIRMATIVELY THAT A MAN IS SANE IN THE WAY IT MUST PROVE AFFIRMATIVELY
THAT THE DEFENDANT IS THE MAN WHO PULLED THE TRIGGER OR STRUCK THE
BLOW.  SUCH LEGISLATION MAKES NO INROAD UPON THE BASIC PRINCIPLE THAT
THE STATE MUST PROVE GUILT, NOT THE DEFENDANT INNOCENCE, AND PROVE IT
TO THE SATISFACTION OF A JURY BEYOND A REASONABLE DOUBT. 

FOR SOME UNRECORDED REASON, OREGON IS THE ONLY ONE OF THE FORTY-EIGHT
STATES THAT HAS MADE INROADS UPON THAT PRINCIPLE BY REQUIRING THE
ACCUSED TO PROVE BEYOND A REASONABLE DOUBT THE ABSENCE OF ONE OF THE
ESSENTIAL ELEMENTS FOR THE COMMISSION OF MURDER, NAMELY, CULPABILITY
FOR HIS MUSCULAR CONTRACTION.  LIKE EVERY OTHER STATE, OREGON
PRESUPPOSES THAT AN INSANE PERSON CANNOT BE MADE TO PAY WITH HIS LIFE
FOR A HOMICIDE, THOUGH FOR THE PUBLIC GOOD HE MAY OF COURSE BE PUT
BEYOND DOING FURTHER HARM.  UNLIKE EVERY OTHER STATE, HOWEVER, OREGON
SAYS THAT THE ACCUSED PERSON MUST SATISFY A JURY BEYOND A REASONABLE
DOUBT THAT, BEING INCAPABLE OF COMMITTING MURDER, HE HAS NOT COMMITTED
MURDER. 

SUCH HAS BEEN THE LAW OF OREGON SINCE 1864.  THAT YEAR THE CODE OF
CRIMINAL PROCEDURE DEFINED MURDER IN THE CONVENTIONAL WAY, BUT IT ALSO
PROVIDED:  "WHEN THE COMMISSION OF THE ACT CHARGED AS A CRIME IS
PROVEN, AND THE DEFENCE SOUGHT TO BE ESTABLISHED IS THE INSANITY OF THE
DEFENDANT, THE SAME MUST BE PROVEN BEYOND A REASONABLE DOUBT  ...  ." 
GENERAL LAWS OF OREGON, 1845-1864, P. 441 ET SEQ., SECS. 502, 204.  THE
LATTER SECTION, THROUGH VARIOUS REVISIONS, IS THE LAW OF OREGON TODAY
AND WAS APPLIED IN THE CONVICTION UNDER REVIEW. 

WHATEVER TENTATIVE AND INTERMEDIATE STEPS EXPERIENCE MAKES
PERMISSIBLE FOR AIDING THE STATE IN ESTABLISHING THE ULTIMATE ISSUES IN
A PROSECUTION FOR CRIME, THE STATE CANNOT BE RELIEVED, ON A FINAL SHOW
DOWN, FROM PROVING ITS ACCUSATION.  TO PROVE THE ACCUSATION IT MUST
PROVE EACH OF THE ITEMS WHICH IN COMBINATION CONSTITUTE THE OFFENSE. 
AND IT MUST MAKE SUCH PROOF BEYOND A REASONABLE DOUBT.  THIS DUTY OF
THE STATE OF ESTABLISHING EVERY FACT OF THE EQUATION WHICH ADDS UP TO A
CRIME, AND OF ESTABLISHING IT TO THE SATISFACTION OF A JURY BEYOND A
REASONABLE DOUBT IS THE DECISIVE DIFFERENCE BETWEEN CRIMINAL
CULPABILITY AND CIVIL LIABILITY.  THE ONLY EXCEPTION IS THAT VERY
LIMITED CLASS OF CASES VARIOUSLY CHARACTERIZED AS MALA PROHIBITA OR
PUBLIC TORTS OR ENFORCEMENT OF REGULATORY MEASURES.  SEE UNITED STATES
V. DOTTERWEICH, 320 U.S. 277; MORISSETTE V. UNITED STATES, 342 U.S.
246.  MURDER IS NOT A MALUM PROHIBITUM OR A PUBLIC TORT OR THE OBJECT
OF REGULATORY LEGISLATION.  TO SUGGEST THAT THE LEGAL ODDITY BY WHICH
OREGON IMPOSES UPON THE ACCUSED THE BURDEN OF PROVING BEYOND REASONABLE
DOUBT THAT HE HAD NOT THE MIND CAPABLE OF COMMITTING MURDER IS A MERE
DIFFERENCE IN THE MEASURE OF PROOF, IS TO OBLITERATE THE DISTINCTION
BETWEEN CIVIL AND CRIMINAL LAW. 

IT IS SUGGESTED THAT THE JURY WERE CHARGED NOT MERELY IN CONFORMITY
WITH THIS REQUIREMENT OF OREGON LAW BUT ALSO IN VARIOUS GENERAL TERMS,
AS TO THE DUTY OF THE STATE TO PROVE EVERY ELEMENT OF THE CRIME CHARGED
BEYOND A REASONABLE DOUBT, INCLUDING IN THE CASE OF FIRST DEGREE
MURDER, "PREMEDITATION, DELIBERATION, MALICE AND INTENT."  BE IT SO.
THE SHORT OF THE MATTER IS THAT THE OREGON SUPREME COURT SUSTAINED THE
CONVICTION ON THE GROUND THAT THE OREGON STATUTE "CASTS UPON THE
DEFENDANT THE BURDEN OF PROVING THE DEFENSE OF INSANITY BEYOND A
REASONABLE DOUBT."  STATE V. LELAND, 190 ORE.  598, 638, 227 P.2D 785,
802.  TO SUGGEST, AS IS SUGGESTED BY THIS COURT BUT NOT BY THE STATE
COURT, THAT, ALTHOUGH THE JURY WAS COMPELLED TO ACT UPON THIS
REQUIREMENT, THE STATUTE DOES NOT OFFEND THE DUE PROCESS CLAUSE BECAUSE
THE TRIAL JUDGE ALSO INDULGED IN A FARRAGO OF GENERALITIES TO THE JURY
ABOUT "PREMEDITATION, DELIBERATION, MALICE AND INTENT," IS TO EXACT
GIFTS OF SUBTLETY THAT NOT EVEN JUDGES, LET ALONE JURIES, POSSESS.  SEE
INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S. 216, 223-224.  IF THE
DUE PROCESS CLAUSE HAS ANY MEANING AT ALL, IT DOES NOT PERMIT LIFE TO
BE PUT TO SUCH HAZARDS. 

TO DENY THIS MODE OF DEALING WITH THE ABUSES OF INSANITY PLEAS AND
WITH UNEDIFYING SPECTACLES OF EXPERT TESTIMONY, IS NOT TO DEPRIVE
OREGON OF THE WIDEST POSSIBLE CHOICE OF REMEDIES FOR CIRCUMVENTING SUCH
ABUSES.  THE MULTIFORM LEGISLATION PREVAILING IN THE DIFFERENT STATES
EVINCES THE GREAT VARIETY OF THE EXPERIMENTAL METHODS OPEN TO THEM FOR
DEALING WITH THE PROBLEMS RAISED BY INSANITY DEFENSES IN PROSECUTIONS
FOR MURDER. 

TO REPEAT THE EXTREME RELUCTANCE WITH WHICH I FIND A CONSTITUTIONAL
BARRIER TO ANY LEGISLATION IS NOT TO MOUTH A THREADBARE PHRASE. 
ESPECIALLY IS DEFERENCE DUE TO THE POLICY OF A STATE WHEN IT DEALS WITH
LOCAL CRIME, ITS REPRESSION AND PUNISHMENT.  THERE IS A GULF, HOWEVER
NARROW, BETWEEN DEFERENCE TO LOCAL LEGISLATION AND COMPLETE DISREGARD
OF THE DUTY OF JUDICIAL REVIEW WHICH HAS FALLEN TO THIS COURT BY VIRTUE
OF THE LIMITS PLACED BY THE FOURTEENTH AMENDMENT UPON STATE ACTION. 
THIS DUTY IS NOT TO BE ESCAPED, WHATEVER I MAY THINK OF INVESTING
JUDGES WITH THE POWER WHICH THE ENFORCEMENT OF THAT AMENDMENT
INVOLVES. 
..END :























CASEY V. UNITED STATES 343 U.S. 808 


NO. 379.  SUBMITTED MARCH 3, 1952 - DECIDED JUNE 9, 1952 - 191 F.2D 1,
REVERSED. 


IN THIS CASE, IN WHICH CONFLICTING VIEWS AS TO THE FACTS ON THE
CONTROLLING ISSUE AND THE INFERENCES TO BE DRAWN FROM THEM WOULD HAVE
TO BE RESOLVED, THE SOLICITOR GENERAL'S CONFESSION OF ERROR, LEAVING
THE WAY OPEN FOR A NEW TRIAL, IS ACCEPTED, AND THE JUDGMENT OF
CONVICTION IS REVERSED AS TO ALL THE PETITIONERS. 

CASEY ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PER CURIAM. 

THE CONTROLLING CLAIM IN THIS CASE IS THAT THERE WAS AN UNREASONABLE
SEARCH AND SEIZURE OF EVIDENCE, THE ADMISSION OF WHICH VITIATED THE
CONVICTIONS.  BEFORE DETERMINING THESE ISSUES CONFLICTING VIEWS AS TO
THE FACTS IN THIS CASE AND THE INFERENCES TO BE DRAWN FROM THEM WOULD
HAVE TO BE RESOLVED.  THE SOLICITOR GENERAL CONFESSES ERROR AND ASKS
THAT THE JUDGMENT BELOW SHOULD BE REVERSED AS TO ALL THE PETITIONERS,
LEAVING OF COURSE THE WAY OPEN FOR A NEW TRIAL.  TO ACCEPT IN THIS CASE
HIS CONFESSION OF ERROR WOULD NOT INVOLVE THE ESTABLISHMENT OF ANY
PERCEDENT. 

ACCORDINGLY WE REVERSE THE JUDGMENT AS TO ALL THE PETITIONERS. 
REVERSED. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE REED
JOIN, DISSENTING. 

I DO NOT BELIEVE WE SHOULD TAKE OUR LAW FROM THE DEPARTMENT OF
JUSTICE OR FROM ANY OTHER LITIGANT.   THE REASONS WHY THE DEPARTMENT OF
JUSTICE CONFESSES ERROR IN A CASE MAY BE WHOLLY HONORABLE.  FOR
EXAMPLE, THOSE IN THE SOLICITOR GENERAL'S OFFICE MAY BE HONESTLY
CONVERTED TO THE POINT OF VIEW WHICH THEIR COLLEAGUES OPPOSED BELOW.  I
ASSUME THAT IS TRUE IN THE PRESENT CASE.  BUT I ALSO KNOW THAT
LITIGANTS USUALLY HAVE SELFISH PURPOSES.  WHAT THE MOTIVATION BEHIND A
PARTICULAR CONFESSION OF ERROR MAY BE WILL SELDOM BE KNOWN.  WE CANNOT
BECOME A PARTY TO IT WITHOUT SERVING THE UNKNOWN CAUSE OF THE
LITIGANT. 

THE PRACTICE IN CASES IN WHICH THE SOLICITOR GENERAL CONFESSES ERROR
WAS SETTLED BY YOUNG V. UNITED STATES, 315 U.S. 257 (1942).  WHEN THE
GOVERNMENT CONFESSED ERROR ON YOUNG'S PETITION FOR CERTIORARI, THE
CONFESSION WAS NOT ACCEPTED BUT, INSTEAD, THE PETITION WAS GRANTED AND
THE CASE SET DOWN FOR ARGUMENT.  314 U.S. 595 (1941).  IN THE UNANIMOUS
OPINION OF THE COURT, TWO JUSTICES NOT PARTICIPATING, THE FUNCTION OF
THIS COURT UPON THE GOVERNMENT'S CONFESSION OF ERROR WAS DESCRIBED WITH
PARTICULARITY: 

"THE PUBLIC TRUST REPOSED IN THE LAW ENFORCEMENT OFFICERS OF THE
GOVERNMENT REQUIRES THAT THEY BE QUICK TO CONFESS ERROR WHEN, IN THEIR
OPINION, A MISCARRIAGE OF JUSTICE MAY RESULT FROM THEIR REMAINING
SILENT.  BUT SUCH A CONFESSION DOES NOT RELIEVE THIS COURT OF THE
PERFORMANCE OF THE JUDICIAL FUNCTION.  THE CONSIDERED JUDGMENT OF THE
LAW ENFORCEMENT OFFICERS THAT REVERSIBLE ERROR HAS BEEN COMMITTED IS
ENTITLED TO GREAT WEIGHT, BUT OUR JUDICIAL OBLIGATIONS COMPEL US TO
EXAMINE INDEPENDENTLY THE ERRORS CONFESSED.  SEE PARLTON V. UNITED
SATES, 75 F.2D 772.  THE PUBLIC INTEREST THAT A RESULT BE REACHED WHICH
PROMOTES A WELL-ORDERED SOCIETY IS FOREMOST IN EVERY CRIMINAL
PROCEEDING.  THAT INTEREST IS ENTRUSTED TO OUR CONSIDERATION AND
PROTECTION AS WELL AS TO THAT OF THE ENFORCING OFFICERS.  FURTHERMORE,
OUR JUDGMENTS ARE PRECEDENTS, AND THE PROPER ADMINISTRATION OF THE
CRIMINAL LAW CANNOT BE LEFT MERELY TO THE STIPULATION OF PARTIES.  CF.
REX V. WILKES, 4 BURR.  2527, 2551, 98 ENG. REP. 327; STATE V. GREEN,
167 WASH. 266, 9 P.2D 62."  315 U.S., AT 258-259. 

AS A RESULT, THE COURT PROCEEDED TO EXAMINE THE ERRORS URGED BY
PETITIONER AND, UPON CONSIDERATION OF THE RECORD, REVERSED THE JUDGMENT
OF THE COURT OF APPEALS.  (FN1) 

THE PRINCIPLES ANNOUNCED IN YOUNG V. UNITED STATES, SUPRA, WERE
EXPRESSLY REAFFIRMED IN GIBSON V. UNITED STATES, 329 U.S. 338, 344
(1946); CF. MARINO V. RAGEN, 332 U.S. 561, 562 (1947).  (FN2) MOREOVER,
THE PRACTICE OF THIS COURT IN CASES IN WHICH THE SOLICITOR GENERAL
CONFESSES ERROR HAS FOLLOWED THE YOUNG RULE.  UNLIKE TODAY'S PER
CURIAM, OUR RECENT PER CURIAM ORDERS AND OPINIONS HAVE BEEN CAREFUL TO
NOTE THAT OUR REVERSAL OF A COURT OF APPEALS JUDGMENT IS BASED UPON
CONSIDERATION OF THE RECORD, NOT BLIND ACCEPTANCE OF A CONFESSION OF
ERROR.  (FN3) 

WE SIT IN THIS CASE NOT TO ENFORCE THE REQUESTS OF THE DEPARTMENT OF
JUSTICE BUT TO REVIEW THE ACTION OF A LOWER COURT.  HERE THE COURT OF
APPEALS RULED THAT PETITIONERS HAD NO STANDING TO COMPLAIN OF THE
SEARCH.  THAT RULING IS QUESTIONABLE IN VIEW OF THE INTERVENING
DECISION OF THIS COURT IN UNITED STATES V. JEFFERS, 342 U.S. 48.  BUT
THE CONFESSION OF ERROR IS NOT LIMITED TO THAT RULING.  THE DEPARTMENT
OF JUSTICE NOW MAINTAINS THAT THE DISTRICT COURT WAS IN ERROR IN RULING
IN THE GOVERNMENT'S FAVOR ON THE ISSUE OF SEARCH AND SEIZURE. 

THE FACTS ARE NOT IN DISPUTE.  THE ONLY QUESTION IS THE REACH OF OUR
DECISION IN CARROLL V. UNITED STATES, 267 U.S. 132.  THAT DECISION
STATES A PRINCIPLE OF CONSTITUTIONAL LAW.  UNTIL IT IS REVERSED OR
MODIFIED, IT PRESCRIBES A RULE FOR THE COURTS TO APPLY ACCORDING TO
THEIR BEST LIGHTS, NOT ACCORDING TO THE DESIRES OF EITHER THE
PROSECUTION OR THE DEFENSE. 

SINCE THE COURT OF APPEALS DID NOT REACH THAT ISSUE WHEN THE CASE WAS
BEFORE IT, WE SHOULD AT THE VERY LEAST REMAND THE CASE TO IT FOR
CONSIDERATION OF THAT QUESTION.  IF WE ARE TO DECIDE IT, WE SHOULD DO
SO ONLY AFTER FULL EXPLORATION OF THE FACT AND THE LAW.  WHATEVER
ACTION WE TAKE IS A PRECEDENT. 

I CANNOT STATE TOO STRONGLY MY BELIEF THAT IF THE COURTS ARE TO
RETAIN THEIR INDEPENDENCE, THEY MUST DECIDE CASES TAKEN ON THE MERITS. 
A CONFESSION OF ERROR BY A LITIGANT IS, OR COURSE, AN IMPORTANT FACTOR
TO TAKE INTO ACCOUNT IN STUDYING A RECORD.  (FN4)  IT MAY DISCLOSE AN
INTERVENING DECISION ON A QUESTION OF LAW THAT UNDERMINES THE LOWER
COURT'S CONCLUSION; IT MAY DISCLOSE PERJURY BY AN IMPORTANT WITNESS OR
NEWLY DISCOVERED EVIDENCE; IT MAY DISCLOSE OTHER FACTORS WHICH WEAKEN
THE CONCLUSION OF THE LOWER COURT.  OR IT MAY DISCLOSE A MANEUVER TO
SAVE ONE CASE AT THE EXPENSE OF ANOTHER.  (FN5)  ONCE WE ACCEPT A
CONFESSION OF ERROR AT FACE VALUE AND MAKE IT THE CONTROLLING AND
DECISIVE FACTOR IN OUR DECISION, WE NO LONGER ADMINISTER A SYSTEM OF
JUSTICE UNDER A GOVERNMENT OF LAWS. 

FN1  DURING THE SAME TERM OF COURT AS YOUNG V. UNITED STATES, SUPRA,
THE GOVERNMENT ALSO CONFESSED ERROR IN WEBER V. UNITED STATES.  THE
COURT GRANTED CERTIORARI, 314 U.S. 600 (1941), HEARD ARGUMENT, AND
AFFIRMED THE COURT OF APPEALS JUDGMENT BY AN EQUALLY DIVIDED COURT. 
315 U.S. 787 (1942). 

FN2  IN UPSHAW V. UNITED STATES, 335 U.S. 410 (1948), THE GOVERNMENT
HAD CONFESSED ERROR IN THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA.  THAT COURT, ADHERING TO ITS PRECEDENT IN PARLTON V. UNITED
STATES, 64 APP. D.C. 169, 75 F.2D 772 (1935)(CITED WITH APPROVAL IN
YOUNG V. UNITED STATES, SUPRA, AT 259), CONDUCTED AN INDEPENDENT
EXAMINATION OF THE ERRORS CONFESSED.  83 U.S. APP. D.C. 207, 168 F.2D
167 (1948).  THIS COURT REVERSED IN A 5-4 DECISION WITHOUT SUGGESTING
THAT THE COURT OF APPEALS HAD ERRED IN CONSIDERING THE MERITS OF THE
GOVERNMENT'S POSITION. 

FN3  CATES V. HADERLEIN, 342 U.S. 804 (1951); CHIARELLA V. UNITED
STATES, 341 U.S. 946 (1951); RYLES V. UNITED STATES, 336 U.S. 949
(1949); BELLASKUS V. CROSSMAN, 335 U.S. 840 (1948); FOGEL V. UNITED
STATES, 335 U.S. 865 (1948); WIXMAN V. UNITED STATES, 335 U.S. 874
(1948); MOGALL V. UNITED STATES, 333 U.S. 424 (1948). 

FN4  SIMILARLY, THE FACT THAT THE SOLICITOR GENERAL DOES NOT OPPOSE
THE GRANTING OF A PETITION FOR CERTIORARI IS ENTITLED TO RESPECT, SEE,
E.G., WONG YANG SUNG V. MCGRATH, 339 U.S. 33, 36 (1950).  BUT IT HAS
NEVER FOLLOWED THAT WE SHOULD AUTOMATICALLY GRANT CERTIORARI BECAUSE OF
THE GOVERNMENT'S CONSENT TO SUCH ACTION.  E.G., COMMUNITY SERVICES,
INC. V. UNITED STATES, 342 U.S. 932 (1952)(CERTIORARI DENIED); DOLLAR
V. UNITED STATES, 342 U.S. 910, (1952)(CERTIORARI DENIED). 

FN5 THE NINTH CIRCUIT COURT OF APPEALS AFFIRMED A TREASON CONVICTION,
ONE GROUND OF AFFIRMANCE BEING THAT THE METHODS OF EXPATRIATION LISTED
IN THE NATIONALITY ACT OF 1940, 54 STAT. 1168, WERE EXCLUSIVE. 
KAWAKITA V. UNITED STATES, 190 F.2D 506, 511-514 (1951).  WE GRANTED
CERTIORARI, 342 U.S. 932, AND AFFIRMED THE COURT OF APPEALS WITHOUT
RESOLVING THE QUESTION.  343 U.S. 717.  THE SOLICITOR GENERAL URGED IN
SUPPORT OF THE CONVICTION THAT THE EXPATRIATION PROCEDURES OF THE
NATIONALITY ACT WERE EXCLUSIVE. 

IN THE DISTRICT OF COLUMBIA CIRCUIT, A JUDGMENT DENYING A CLAIM OF
CITIZENSHIP WAS AFFIRMED, ONE GROUND OF AFFIRMANCE BEING THAT METHODS
OF EXPATRIATION LISTED IN THE NATIONALITY ACT OF 1940 WERE NOT
EXCLUSIVE.  MANDOLI V. ACHESON, 193 F.2D 920, 922 (1952).  IN HIS
MEMORANDUM IN RESPONSE TO THE MANDOLI PETITION FOR CERTIORARI, THE
SOLICITOR GENERAL, ADHERING TO HIS POSITION IN KAWAKITA, ASSERTED THAT
THIS GROUND OF THE COURT OF APPEALS DECISION IN THIS CASE IS "CLEARLY
ERRONEOUS." 
..END :
















THOMPSON V. UNITED STATES 343 U.S. 549 


NO. 513.  ARGUED APRIL 23, 1952 - DECIDED JUNE 2, 1952 - 101 F. SUPP.
48, REVERSED. 


GRAIN MAY BE SHIPPED OVER THE MISSOURI PACIFIC RAILROAD TO KANSAS CITY
FROM LENORA VIA ATCHISON, KANSAS, AT 19 CENTS PER 100 POUNDS; AND THE
RATE TO OMAHA IS 25.5 CENTS.  UPON COMPLAINT THAT THE MISSOURI
PACIFIC'S RATES DISCRIMINATE AGAINST OMAHA, THE INTERSTATE COMMERCE
COMMISSION, WITHOUT ATTEMPTING TO MAKE THE INQUIRY AND FINDINGS
REQUIRED BY SEC. 15 OF THE INTERSTATE COMMERCE ACT FOR THE
ESTABLISHMENT OF THROUGH ROUTES, BUT FINDING THAT A THROUGH ROUTE FROM
LENORA TO OMAHA VIA CONCORDIA AND THE BURLINGTON RAILROAD WAS ALREADY
IN EXISTENCE, ORDERED THE MISSOURI PACIFIC TO PROVIDE TRANSPORTATION
OVER THAT ROUTE AT A RATE NOT EXCEEDING THE RATE TO KANSAS CITY.  THERE
WAS NO EVIDENCE THAT THE CARRIERS HAD EVER OFFERED THROUGH SERVICE FROM
LENORA TO OMAHA VIA THE BURLINGTON.  HELD:  THE ORDER OF THE COMMISSION
WAS WITHOUT EVIDENTIARY SUPPORT AND WAS INVALID UNDER THE INTERSTATE
COMMERCE ACT.  PP. 550-561. 

1.  THE COMMISSION'S FINDING THAT A THROUGH ROUTE FROM LENORA TO
OMAHA VIA THE BURLINGTON WAS ALREADY IN EXISTENCE IS INCONSISTENT WITH
THE MEANING OF "THROUGH ROUTE" AS USED IN THE INTERSTATE COMMERCE ACT. 
PP. 552-561. 

(A)  THE COMMISSION'S POWER TO ESTABLISH THROUGH ROUTES IS LIMITED BY
SEC. 15(3) AND (4) OF THE ACT, WHENEVER, AS HERE, A CARRIER WOULD BE
REQUIRED TO SHORT HAUL ITSELF.  PP. 552-555. 

(B)  THE TEST OF THE EXISTENCE OF A "THROUGH ROUTE" IS WHETHER THE
PARTICIPATING CARRIERS HOLD THEMSELVES OUT AS OFFERING THROUGH
TRANSPORTATION SERVICE.  PP. 556-557. 

(C)  THE FACT THAT THE MISSOURI PACIFIC CONNECTS WITH THE BURLINGTON
AT CONCORDIA DOES NOT AID THE COMMISSION IN PROVING THE EXISTENCE OF A
THROUGH ROUTE, SINCE THE POWER TO ESTABLISH THROUGH ROUTES UNDER SEC.
15 PRESUPPOSES SUCH PHYSICAL CONNECTION.  PP. 557-558. 

(D)  THE SHOWING THAT THE MISSOURI PACIFIC PUBLISHES A LOCAL RATE
FROM LENORA TO CONCORDIA AND THAT THE BURLINGTON PUBLISHES A LOCAL RATE
FROM CONCORDIA TO OMAHA PROVES ONLY THAT EACH CARRIER COMPLIES WITH THE
STATUTORY DUTY TO PUBLISH RATES FOR TRANSPORTATION SERVICE BETWEEN
POINTS ON ITS OWN LINES.  P. 558. 

(E)  THE EXISTENCE OF THROUGH ROUTES FROM LENORA TO POINTS ON THE
BURLINGTON LINE SHORT OF OMAHA DOES NOT PROVE THE EXISTENCE OF A
THROUGH ROUTE TO OMAHA VIA THE BURLINGTON.  PP. 558-559. 

2.  TO SUSTAIN THE COMMISSION'S ORDER IN THIS CASE WOULD CIRCUMVENT
ACTS OF CONGRESS SINCE 1906 GRANTING THE COMMISSION ONLY A CAREFULLY
RESTRICTED POWER TO ESTABLISH THROUGH ROUTES.  PP. 554-555, 560-561. 

THOMPSON, TRUSTEE, MISSOURI PACIFIC RAILROAD CO. V. UNITED STATES ET
AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MISSOURI. 

IN A SUIT TO ENJOIN THE ENFORCEMENT OF AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION, 278 I.C.C. 519, A THREE-JUDGE DISTRICT COURT
DISMISSED APPELLANT'S COMPLAINT.  101 F. SUPP. 48.  ON DIRECT APPEAL TO
THIS COURT UNDER 28 U.S.C. SEC. 1253, REVERSED, P. 561. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION BEFORE THE COURT IN THIS CASE CONCERNS THE CONTENT
OF THE TERM "THROUGH ROUTE" AS USED IN THE INTERSTATE COMMERCE ACT. 
(FN1) 

THE QUESTION ARISES OUT OF A CONTROVERSY AS TO THE SHIPMENT OF GRAIN
TO MARKET FROM POINTS IN KANSAS ON THE CENTRAL BRANCH OF THE MISSOURI
PACIFIC RAILROAD.  FROM LENORA, KANSAS, A TYPICAL ORIGIN POINT, GRAIN
MAY BE SHIPPED EASTWARD TO THE KANSAS CITY MARKET OVER MISSOURI PACIFIC
LINES VIA ATCHISON, KANSAS, AT A RATE OF 19 CENTS PER HUNDRED POUNDS. 
THE MISSOURI PACIFIC ALSO PROVIDES SERVICE FROM LENORA TO OMAHA,
NEBRASKA, VIA ATCHISON, AT THE RATE OF 25.5 CENTS.  MIDWAY BETWEEN
LENORA AND ATCHISON, AT CONCORDIA, KANSAS, THE MISSOURI PACIFIC
CONNECTS WITH A LINE OF THE CHICAGO, BURLINGTON & QUINCY RAILROAD
RUNNING IN A NORTHEASTERLY DIRECTION TO OMAHA.  CONCORDIA IS LISTED BY
THE CARRIERS AS A POINT FOR INTERCHANGE OF TRAFFIC AND THERE IS
EVIDENCE THAT THE MISSOURI PACIFIC AND THE BURLINGTON OFFER THROUGH
TRANSPORTATION VIA CONCORDIA FROM LENORA TO POINTS ON THE BURLINGTON
LINE SHORT OF OMAHA.  BUT THERE IS NO EVIDENCE THAT ANY SHIPMENT HAS
EVER BEEN MADE FROM LENORA TO OMAHA VIA THE BURLINGTON LINE OR THAT THE
CARRIERS HAVE EVER OFFERED THROUGH SERVICE OVER THAT ROUTE, ALTHOUGH
THE HAUL FROM LENORA TO OMAHA VIA THE BURLINGTON IS APPROXIMATELY THE
SAME LENGTH AS THE HAUL FROM LENORA TO KANSAS CITY OVER THE LINES OF
THE MISSOURI PACIFIC. 

THE OMAHA GRAIN EXCHANGE COMPLAINED TO THE INTERSTATE COMMERCE
COMMISSION THAT THE RATES PUBLISHED BY APPELLANT, TRUSTEE FOR THE
MISSOURI PACIFIC, ON GRAIN SHIPPED FROM LENORA AND OTHER KANSAS ORIGINS
ARE UNREASONABLE AND DISCRIMINATE AGAINST OMAHA IN VIOLATION OF
COMPLAINT IT WAS CONTENDED THAT THE ROUTE TO OMAHA VIA CONCORDIA AND
THE BURLINGTON LINE "IS A PRACTICABLE THROUGH ROUTE AS PROVIDED IN
MARKET OF OMAHA SHOULD BE NO GREATER THAN THE RATES TO THE MARKET OF
KANSAS CITY." 


"THE COMMISSION MAY, AND IT SHALL WHENEVER DEEMED BY IT TO BE
NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST, AFTER FULL HEARING UPON
COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, ESTABLISH
THROUGH ROUTES, JOINT CLASSIFICATIONS, AND JOINT RATES, FARES, OR
CHARGES, APPLICABLE TO THE TRANSPORTATION OF PASSENGERS OR PROPERTY BY
CARRIERS SUBJECT TO THIS PART,  ...  ."  54 STAT. 911, 49 U.S.C. SEC.
15(3). 

THE COMMISSION'S POWER TO ESTABLISH THROUGH ROUTES IS LIMITED BY A
PROVISION OF SECTION 15(4), QUOTED IN THE MARGIN, (FN3) WHENEVER SUCH
ACTION WOULD REQUIRE A CARRIER TO SHORT HAUL ITSELF.  UNDER THAT
OWN LINE MAKES THE EXISTING THROUGH ROUTE "UNREASONABLY LONG AS
COMPARED WITH ANOTHER PRACTICABLE THROUGH ROUTE WHICH COULD OTHERWISE
BE ESTABLISHED," OR WHERE THE COMMISSION MAKES SPECIAL FINDINGS THAT A
PROPOSED THROUGH ROUTE "IS NEEDED IN ORDER TO PROVIDE ADEQUATE, AND
MORE EFFICIENT OR MORE ECONOMIC, TRANSPORTATION."  (FN4)  ESTABLISHMENT
OF A NEW THROUGH ROUTE FROM LENORA TO OMAHA, VIA THE BURLINGTON, WOULD
COMPEL THE MISSOURI PACIFIC TO PERMIT USE OF THE LENORA-CONCORDIA
PORTION OF ITS LINE IN THE NEW THROUGH ROUTE TO OMAHA IN COMPETITION
WITH THE MISSOURI PACIFIC'S OWN ROUTE FROM LENORA TO OMAHA VIA
ATCHISON.  AS A RESULT, ESTABLISHMENT OF A NEW THROUGH ROUTE AS
REQUESTED BY THE OMAHA GRAIN EXCHANGE ADMITTEDLY INVOKES THE
RESTRICTION AGAINST SHORT HAULING IN SECTION 15(4). 

THE PARTIES DISPUTE WHETHER, ON THE RECORD IN THIS CASE, THERE IS
SUFFICIENT BASIS FOR MAKING THE FINDINGS REQUIRED BY SECTION 15(3) AND
(4) FOR THE ESTABLISHMENT OF A THROUGH ROUTE.  WE DO NOT REACH THIS
QUESTION BECAUSE THERE WAS NO ATTEMPT TO MAKE THE INQUIRY AND FINDINGS
REQUIRED BY SECTION 15, THE COMMISSION FINDING THAT A THROUGH ROUTE
FROM LENORA TO OMAHA VIA CONCORDIA AND THE BURLINGTON LINE WAS ALREADY
IN EXISTENCE AND, THEREFORE, DID NOT HAVE TO BE "ESTABLISHED."  THE
COMMISSION GRANTED RELIEF TO THE COMPLAINANT OMAHA GRAIN EXCHANGE BY
FINDING THAT THE SUM OF THE LOCAL RATE FROM LENORA TO CONCORDIA
PUBLISHED BY APPELLANT AND THE LOCAL RATE FROM CONCORDIA TO OMAHA
PUBLISHED BY THE BURLINGTON (TOTALING 30 CENTS PER HUNDRED POUNDS) IS
AN "UNREASONABLE" RATE OVER THE ROUTE FROM LENORA TO OMAHA VIA THE
BURLINGTON.  APPELLANT WAS ORDERED TO PROVIDE TRANSPORTATION OF GRAIN
FROM LENORA TO OMAHA AT RATES NOT EXCEEDING THE RATES CHARGED BY THE
MISSOURI PACIFIC ON LIKE TRAFFIC TO KANSAS CITY (19 CENTS).  THE
COMMISSION DID NOT CONSIDER THE REASONABLENESS OF THE RATE PUBLISHED BY
APPELLANT FOR THE ROUTE FROM LENORA TO OMAHA VIA ATCHISON, NOR IS THERE
ANY FINDING THAT THE LOCAL RATE FROM LENORA TO CONCORDIA PUBLISHED BY
APPELLANT IS ITSELF EITHER UNREASONABLE OR DISCRIMINATORY.  278 I.C.C.
519, AFFIRMING DIVISION 2,272 I.C.C. 368. 

APPELLANT SUED IN THE DISTRICT COURT TO ENJOIN ENFORCEMENT OF THE
COMMISSION'S ORDER ON THE SOLE GROUND THAT THE COMMISSION ERRED IN
FINDING THE EXISTENCE OF A THROUGH ROUTE FROM LENORA TO OMAHA VIA THE
BURLINGTON WITH THE RESULT THAT THE ORDER, IN EFFECT, ESTABLISHES A NEW
THROUGH ROUTE WITHOUT COMPLYING WITH THE REQUIREMENTS OF SECTION 15(3)
AND (4) OF THE ACT.  A THREE-JUDGE DISTRICT COURT, ONE JUDGE
DISSENTING, SUSTAINED THE COMMISSION'S ORDER AND DISMISSED APPELLANT'S
COMPLAINT.  THE DISTRICT COURT CONCLUDED THAT "EVIDENCE OF PHYSICAL
INTERCHANGE CONNECTION AT CONCORDIA, PLUS LONG ESTABLISHED JOINT RATES
TO SOME POINTS ON THE BURLINGTON SHORT OF OMAHA, PLUS COMBINATION RATES
TO OMAHA," FURNISHED SUFFICIENT EVIDENTIARY BASIS FOR THE COMMISSION'S
FINDING OF THE EXISTENCE OF A THROUGH ROUTE.  101 F. SUPP. 48.  THE
CASE IS HERE ON DIRECT APPEAL.  28 U.S.C. (SUPP. IV) SEC. 1253. 

UNDER THE INTERSTATE COMMERCE ACT, A CARRIER MUST NOT ONLY PROVIDE
TRANSPORTATION SERVICE AT REASONABLE RATES OVER ITS OWN LINES BUT HAS
THE ADDITIONAL DUTY "TO ESTABLISH REASONABLE THROUGH ROUTES WITH OTHER
SUCH CARRIERS, AND JUST AND REASONABLE RATES  ...  APPLICABLE
THERETO."  (FN5) THROUGH ROUTES MAY BE, AND ORDINARILY ARE, ESTABLISHED
BY THE VOLUNTARY ACTION OF CONNECTING CARRIERS.  SINCE 1906, THROUGH
ROUTES MAY ALSO BE ESTABLISHED BY ORDER OF THE INTERSTATE COMMERCE
COMMISSION.  IN THAT YEAR, CONGRESS AUTHORIZED THE COMMISSION TO
ESTABLISH THROUGH ROUTES "PROVIDED NO REASONABLE OR SATISFACTORY
THROUGH ROUTE EXISTS."  (FN6)  IN 1910, CONGRESS FIRST EMPOWERED THE
COMMISSION TO ESTABLISH ALTERNATE THROUGH ROUTES BUT RESTRICTED THIS
POWER BY ADDING THE FORERUNNER OF PRESENT SECTION 15(4) TO PREVENT THE
COMMISSION FROM ESTABLISHING ANY THROUGH ROUTE REQUIRING A CARRIER TO
SHORT HAUL ITSELF UNLESS THE EXISTING ROUTE WAS UNREASONABLY LONG
COMPARED TO THE PROPOSED ROUTE.  (FN7) 

THE COMMISSION'S EFFORT TO LIMIT BY CONSTRUCTION THE IMPACT OF THE
SHORT-HAULING RESTRICTION ON ITS POWER TO ESTABLISH THROUGH ROUTES WAS
REJECTED BY THIS COURT IN UNITED STATES V. MISSOURI PACIFIC R. CO., 278
U.S. 269 (1929).  FOLLOWING THIS DECISION, THE COMMISSION ASKED
CONGRESS TO DELETE COMPLETELY THE SHORT-HAULING RESTRICTION.  (FN8)  IN
THE TRANSPORTATION ACT OF 1940, CONGRESS REFUSED TO ELIMINATE THE
RESTRICTION AGAINST SHORT HAULING, BUT ADOPTED A COMPROMISE UNDER WHICH
THE RESTRICTION AGAINST SHORT HAULING WAS RETAINED SUBJECT TO A NEW
EXCEPTION APPLICABLE ONLY WHERE THE COMMISSION MAKES THE SPECIAL
FINDINGS LISTED IN THE AMENDED SECTION 15(4).  (FN9) 

CONFRONTED WITH THIS CONSISTENT LEGISLATIVE REFUSAL TO ELIMINATE THE
SHORT-HAULING RESTRICTION ON ITS POWER TO ESTABLISH THROUGH ROUTES, THE
COMMISSION JUSTIFIES ITS ORDER ON THE GROUND THAT A "THROUGH ROUTE"
FROM LENORA TO OMAHA VIA THE BURLINGTON WAS ALREADY IN EXISTENCE.  IF
THE COMMISSION HAS CORRECTLY APPLIED THE TERM "THROUGH ROUTE" IN THIS
CASE, THE COMMISSION'S RESTRICTED POWER TO "ESTABLISH" THROUGH ROUTES
UNDER SECTION 15(3) AND (4) IS NOT RELEVANT TO THIS CASE.  THE
STATUTORY TERM "THROUGH ROUTE," USED THROUGHOUT THE INTERSTATE COMMERCE
ACT, (FN10) HAS BEEN DEFINED BY THIS COURT AS FOLLOWS: 

"A 'THROUGH ROUTE' IS AN ARRANGEMENT, EXPRESS OR IMPLIED, BETWEEN
CONNECTING RAILROADS FOR THE CONTINUOUS CARRIAGE OF GOODS FROM THE
ORIGINATING POINT ON THE LINE OF ONE CARRIER TO DESTINATION ON THE LINE
OF ANOTHER.  THROUGH CARRIAGE IMPLIES A 'THROUGH RATE.'  THIS 'THROUGH
RATE' IS NOT NECESSARILY A 'JOINT RATE.'  IT MAY BE MERELY AN
AGGREGATION OF SEPARATE RATES FIXED INDEPENDENTLY BY THE SEVERAL
CARRIERS FORMING THE 'THROUGH ROUTE'; AS WHERE THE 'THROUGH RATE' IS
'THE SUM OF THE LOCALS' ON THE SEVERAL CONNECTING LINES OR IS THE SUM
OF LOWER RATES OTHERWISE SEPARATELY ESTABLISHED BY THEM FOR THROUGH
TRANSPORTATION.  THROUGH ROUTES AND THROUGH RATES, 12 I.C.C. 163,
166."  (FN11) 

THE COMMISSION DECISION CITED BY THE COURT WAS SUMMARIZED AS FOLLOWS
IN THE COMMISSION'S 21ST ANNUAL REPORT TO CONGRESS: 

"A THROUGH ROUTE IS A CONTINUOUS LINE OF RAILWAY FORMED BY AN
ARRANGEMENT, EXPRESS OR IMPLIED, BETWEEN CONNECTING CARRIERS  ...  .
EXISTENCE OF A THROUGH ROUTE IS TO BE DETERMINED BY THE INCIDENTS AND
CIRCUMSTANCES OF THE SHIPMENT, SUCH AS THE BILLING, THE TRANSFER FROM
ONE CARRIER TO ANOTHER, THE COLLECTION AND DIVISION OF TRANSPORTATION
CHARGES, OR THE USE OF A PROPORTIONAL RATE TO OR FROM JUNCTION POINTS
OR BASING POINTS.  THESE INCIDENTS NAMED ARE NOT TO BE REGARDED AS
EXCLUSIVE OF OTHERS WHICH MAY TEND TO ESTABLISH A CARRIER'S COURSE OF
BUSINESS WITH RESPECT TO THROUGH SHIPMENTS."  (FN12) 

IN SHORT, THE TEST OF THE EXISTENCE OF A "THROUGH ROUTE" IS WHETHER
THE PARTICIPATING CARRIERS HOLD THEMSELVES OUT AS OFFERING THROUGH
TRANSPORTATION SERVICE.  THROUGH CARRIAGE IMPLIES THE EXISTENCE OF A
THROUGH ROUTE WHATEVER THE FORM OF THE RATES CHARGED FOR THE THROUGH
SERVICE. 

IN THIS CASE THERE IS NO EVIDENCE THAT ANY THROUGH TRANSPORTATION
SERVICE HAS EVER BEEN OFFERED FROM LENORA TO OMAHA VIA THE BURLINGTON. 
(FN13)  THE CARRIERS' COURSE OF BUSINESS NEGATIVES THE EXISTENCE OF ANY
SUCH THROUGH ROUTE.  THE FACT THAT APPELLANT'S LINE CONNECTS WITH THE
BURLINGTON AT CONCORDIA DOES NOT AID THE COMMISSION IN PROVING THE
EXISTENCE OF A THROUGH ROUTE, SINCE THE POWER TO ESTABLISH THROUGH
ROUTES UNDER SECTION 15(3) AND (4) ALSO PRESUPPOSES SUCH PHYSICAL
CONNECTION.  AND THE SHOWING THAT APPELLANT PUBLISHES A LOCAL RATE FROM
LENORA TO CONCORDIA AND THAT THE BURLINGTON PUBLISHES A LOCAL RATE FROM
CONCORDIA TO OMAHA PROVES ONLY THAT EACH CARRIER COMPLIES WITH THE
STATUTORY DUTY TO PUBLISH RATES FOR TRANSPORTATION SERVICE BETWEEN
POINTS ON ITS OWN LINES.  (FN14) 

THE ONLY REMAINING EVIDENCE URGED IN SUPPORT OF THE COMMISSION'S
FINDING THAT A THROUGH ROUTE FROM LENORA TO OMAHA VIA THE BURLINGTON
ALREADY EXISTS IS THE SHOWING THAT THE MISSOURI PACIFIC AND THE
BURLINGTON OFFER THROUGH SERVICE FROM LENORA TO POINTS ON THE
BURLINGTON LINE SHORT OF OMAHA.  (FN15)  UNDER SECTION 1(4) OF THE
INTERSTATE COMMERCE ACT, (FN16) THE MISSOURI PACIFIC IS REQUIRED TO
ESTABLISH REASONABLE THROUGH ROUTES.  IN CONFORMITY WITH THAT SECTION,
THE MISSOURI PACIFIC FURNISHES THROUGH SERVICE FROM LENORA TO OMAHA ON
ITS OWN LINES VIA ATCHISON AND, SINCE ITS OWN LINES DO NOT SERVE POINTS
ON THE BURLINGTON LINE SHORT OF OMAHA, IT OFFERS THROUGH SERVICE TO
SUCH POINTS IN CONJUNCTION WITH THE BURLINGTON.  THROUGH SERVICE TO
POINTS SHORT OF OMAHA CANNOT BE USED AS EVIDENCE OF THE EXISTENCE OF A
THROUGH ROUTE TO OMAHA UNLESS WE ARE TO HOLD THAT COMPLIANCE WITH
OMAHA VIA ITS OWN LINES, A RIGHT GUARANTEED BY SECTION 15(4).  WE
REJECT THE COMMISSION'S ARGUMENT THAT THE EXISTENCE OF THROUGH ROUTES
FROM LENORA TO POINTS ON THE BURLINGTON LINE SHORT OF OMAHA PROVES THE
EXISTENCE OF A THROUGH ROUTE TO OMAHA VIA THE BURLINGTON AS REQUIRING
AN UNWARRANTED DISTORTION OF THE STATUTORY PATTERN. 

THE UNITED STATES, HAVING JOINED IN DEFENSE OF THE COMMISSION'S ORDER
IN THE DISTRICT COURT AND ON MOTION TO AFFIRM IN THIS COURT, HAS FILED
A MEMORANDUM CONCEDING THAT THE COMMISSION ERRED IN FINDING THAT
THROUGH ROUTES OVER THE BURLINGTON LINE ALREADY EXIST.  THE COMMISSION
CONTINUES TO SUPPORT ITS ORDER, BUT THE LOGICAL CONCLUSION OF THE
THEORY ADVANCED BY THE COMMISSION IS THAT THROUGH ROUTES EXIST BETWEEN
ALL POINTS THROUGHOUT THE COUNTRY WHEREVER PHYSICAL RAIL CONNECTIONS
ARE AVAILABLE.  IF THERE IS NO THROUGH CARRIAGE OVER ANY COMBINATION OF
CONNECTING CARRIERS, THE COMMISSION UNDER ITS PRESENT THEORY WOULD
NEVER HAVE TO ESTABLISH THROUGH ROUTES UNDER SECTION 15(3) AND (4) BUT
COULD DIVERT TRAFFIC TO ANY ROUTE BETWEEN TWO POINTS BY ORDERING
REDUCTION OF THE SUM OF THE LOCAL RATES OVER THAT ROUTE.  ACCEPTANCE OF
THIS ARGUMENT WOULD MEAN THAT CONGRESS' INSISTENCE ON PROTECTING
CARRIERS FROM BEING REQUIRED TO SHORT HAUL THEMSELVES COULD BE EVADED
WHENEVER THE COMMISSION CHOSE TO ALTER THE FORM OF ITS ORDER.  (FN17)
THE COMMISSION, BY USING THE FORM OF ORDER EMPLOYED IN THIS CASE, COULD
ALSO DIVERT TRAFFIC FROM EXISTING THROUGH ROUTES TO THE LINES OF A WEAK
CARRIER SOLELY TO ASSIST THAT CARRIER TO MEET ITS FINANCIAL NEEDS,
THEREBY EVADING COMPLETELY THE APPLICABLE PROHIBITION OF SECTION 15(4),
BEFORE THE COURT IN UNITED STATES V. GREAT NORTHERN R. CO., 343 U.S.
562 (DECIDED THIS DAY).  IN SHORT, ACCEPTANCE OF THE COMMISSION'S
ARGUMENT WOULD MEAN THAT THE ACTS OF CONGRESS SINCE 1906 GRANTING THE
COMMISSION ONLY A CAREFULLY RESTRICTED POWER TO ESTABLISH THROUGH
ROUTES HAVE BEEN UNNECESSARY SURPLUSAGE. 

WE HOLD THAT THE COMMISSION'S EFFORTS TO SUPPORT ITS FINDING THAT A
THROUGH ROUTE FROM LENORA TO OMAHA VIA THE BURLINGTON LINE ALREADY
EXISTS ARE INCONSISTENT WITH THE MEANING OF THE TERM "THROUGH ROUTE" AS
USED IN THE INTERSTATE COMMERCE ACT.  (FN18)  SINCE THERE IS ADMITTEDLY
NO EVIDENCE THAT THE MISSOURI PACIFIC EVER OFFERED THROUGH
TRANSPORTATION SERVICE OVER THE ROUTE IN QUESTION, THE COMMISSION'S
ORDER IS WITHOUT EVIDENTIARY SUPPORT UNDER THE ACCEPTED TESTS FOR
DETERMINING THE EXISTENCE OF A THROUGH ROUTE.  ACCORDINGLY, THE
JUDGMENT OF THE DISTRICT COURT DISMISSING APPELLANT'S COMPLAINT MUST BE
REVERSED. 

FN1  49 U.S.C. SEC. 1 ET SEQ. 

FN2  SEE 49 U.S.C. SECS. 1(5)(A), 3(1). 

FN3  "IN ESTABLISHING ANY SUCH THROUGH ROUTE THE COMMISSION SHALL NOT
(EXCEPT AS PROVIDED IN SECTION 3, AND EXCEPT WHERE ONE OF THE CARRIERS
IS A WATER LINE) REQUIRE ANY CARRIER BY RAILROAD, WITHOUT ITS CONSENT,
TO EMBRACE IN SUCH ROUTE SUBSTANTIALLY LESS THAN THE ENTIRE LENGTH OF
ITS RAILROAD AND OF ANY INTERMEDIATE RAILROAD OPERATED IN CONJUNCTION
AND UNDER A COMMON MANAGEMENT OR CONTROL THEREWITH, WHICH LIES BETWEEN
THE TERMINI OF SUCH PROPOSED THROUGH ROUTE, (A) UNLESS SUCH INCLUSION
OF LINES WOULD MAKE THE THROUGH ROUTE UNREASONABLY LONG AS COMPARED
WITH ANOTHER PRACTICABLE THROUGH ROUTE WHICH COULD OTHERWISE BE
ESTABLISHED, OR (B) UNLESS THE COMMISSION FINDS THAT THE THROUGH ROUTE
PROPOSED TO BE ESTABLISHED IS NEEDED IN ORDER TO PROVIDE ADEQUATE, AND
MORE EFFICIENT OR MORE ECONOMIC, TRANSPORTATION:  PROVIDED, HOWEVER,
THAT IN PRESCRIBING THROUGH ROUTES THE COMMISSION SHALL, SO FAR AS IS
CONSISTENT WITH THE PUBLIC INTEREST, AND SUBJECT TO THE FOREGOING
LIMITATIONS IN CLAUSES (A) AND (B), GIVE REASONABLE PREFERENCE TO THE
CARRIER BY RAILROAD WHICH ORIGINATES THE TRAFFIC  ...  ."  54 STAT. 911
912, 49 U.S.C. SEC. 15(4). 

FN4  THE SHORT-HAULING PROVISIONS ARE DISCUSSED AND APPLIED IN
PENNSYLVANIA R. CO. V. UNITED STATES, 323 U.S. 588 (1945). 

FN5  49 U.S.C. SEC. 1(4). 

FN6  34 STAT. 584, 590.  IN I.C.C. V. NORTHERN PACIFIC R. CO., 216
U.S. 538 (1910), THIS COURT HELD THAT THE RESTRICTIONS ON THE
COMMISSION'S POWER TO ESTABLISH THROUGH ROUTES WERE JUDICIALLY
ENFORCEABLE. 

FN7  36 STAT. 539, 552.  SEE S. REP. NO. 355, 61ST CONG., 2D SESS. 9
10 (1910). 

FN8  THE COMMISSION FIRST ASKED CONGRESS TO ADOPT THE NARROW
CONSTRUCTION OF THE SHORT-HAULING RESTRICTION REJECTED BY THIS COURT IN
UNITED STATES V. MISSOURI PACIFIC R. CO., SUPRA.  ANN. REP. I.C.C.
(1929) 89; ID. (1930) 97; ID. (1931) 83-84, 121; ID.  (1932) 102.  WHEN
THE FEDERAL TRANSPORTATION COORDINATOR RECOMMENDED THAT THE SHORT
HAULING RESTRICTION BE ELIMINATED, S. DOC. NO. 152, 73D CONG., 2D SESS.
92-94 (1934), THE COMMISSION URGED CONGRESS TO FOLLOW THE COORDINATOR'S
RECOMMENDATION.  ANN. REP. I.C.C. (1937) 106; ID. (1938) 122. 

IN THE 74TH CONGRESS, S. 1636 AND H.R. 5364 WERE INTRODUCED TO ENACT
THE COMMISSION'S RECOMMENDATION, THE SENATE BILL WAS REPORTED
FAVORABLY, S. REP. NO. 1970, 74TH CONG., 2D SESS. (1936), BUT NO
FURTHER ACTION WAS TAKEN.  IN THE 75TH CONGRESS, SIMILAR BILLS WERE
INTRODUCED, S. 1261 AND H.R. 4341, THE SENATE BILL WAS REPORTED
FAVORABLY, S. REP. NO. 404, 75TH CONG., 1ST SESS. (1937), AND WAS
PASSED BY THE SENATE, 81 CONG. REC. 8603 (1937), BUT NO FURTHER ACTION
WAS TAKEN. 

FN9  IN THE 76TH CONGRESS, BILLS TO DELETE THE SHORT-HAULING
RESTRICTION WERE AGAIN INTRODUCED, S. 1085 AND H.R. 3400.  AT THE SAME
TIME, THE EXTENSIVE REVISION OF THE INTERSTATE COMMERCE ACT WHICH
BECAME THE TRANSPORTATION ACT OF 1940 WAS BEING CONSIDERED.  S. 2009. 
A SENATE COMMITTEE INCLUDED IN ITS OVER-ALL REVISION THE "THROUGH
ROUTES PROVISION LONG ADVOCATED BY THE COMMISSION," S. REP. NO. 433,
76TH CONG., 1ST SESS. 6, 21-22 (1939), AND THE TRANSPORTATION ACT, SO
AMENDED, WAS PASSED BY THE SENATE.  THE TRANSPORTATION ACT AS PASSED BY
THE HOUSE DID NOT PROVIDE FOR ANY CHANGE IN SECTION 15(4).  THE PRESENT
FORM OF SECTION 15(4) EMERGED AS SECTION 10(B) OF THE TRANSPORTATION
ACT OF 1940.  54 STAT. 898, 911-912.  SEE CONFERENCE REPORTS:  H.R.
REP. NO. 2016, 76TH CONG., 3D SESS. 64-65 (1940); H.R. REP. NO. 2832,
76TH CONG., 3D SESS. 70-71 (1940). 

FN10  49 U.S.C. SECS. 1(4), 6(1), 15(3)(4)(8); 49 U.S.C. (SUPP. IV)
SEC. 5B(4). 

FN11 ST. LOUIS SOUTHWESTERN R. CO. V. UNITED STATES, 245 U.S. 136,
139, NOTE 2 (1917).  SEE ALSO GREAT NORTHERN R. CO. V. UNITED STATES,
81 F. SUPP. 921, 924 (D. DEL. 1948), AFFIRMED, 336 U.S. 933 (1949). 

FN12  ANN. REP. I.C.C. (1907) 75-76. 

FN13  COMPARE BEAMAN ELEVATOR CO. V. CHICAGO & N.W.R. CO., 155 I.C.C.
313 (1929), WHERE THE COMMISSION HELD THAT PROOF OF ONE SHIPMENT ON A
THROUGH BILL OF LADING OVER A CERTAIN ROUTE WAS NOT SUFFICIENT TO SHOW
THE EXISTENCE OF A THROUGH ROUTE BECAUSE THAT ONE SHIPMENT WAS NOT
REPRESENTATIVE OF THE CARRIERS' COURSE OF BUSINESS. 

FN14  49 U.S.C. SEC. 6(1). 

FN15  THE DISTRICT COURT INDICATED THAT SUCH THROUGH SERVICE WAS
OFFERED ON JOINT RATES, BUT APPELLANT STATES IN THIS COURT THAT SUCH
THROUGH SERVICE WAS OFFERED ON A THROUGH RATE MADE UP OF A COMBINATION
OF THE APPLICABLE LOCAL RATES.  WE NEED NOT PAUSE OVER THIS CONFLICT
SINCE "THROUGH ROUTES" FROM LENORA TO POINTS ON THE BURLINGTON SHORT OF
OMAHA ARE IMPLIED FROM THE FACT OF THROUGH CARRIAGE, AND ARE NOT
DEPENDENT UPON THE FORM OF THE RATES CHARGED.  SEE ST. LOUIS
SOUTHWESTERN R. CO. V. UNITED STATES, NOTE 11, SUPRA, AND UNITED STATES
V. GREAT NORTHERN R. CO., 343 U.S. 562 (DECIDED THIS DAY). 

FN16  49 U.S.C. SEC. 1(4). 

FN17  FOR EXAMPLE, IN UNITED STATES V. MISSOURI PACIFIC R. CO.,
SUPRA, THE MISSOURI PACIFIC FURNISHED THROUGH TRAFFIC OVER ITS OWN
LINES FROM MEMPHIS WESTWARD TO FT. SMITH, ARKANSAS, AND BEYOND.  THE
FT. SMITH, SUBIACO & R.I.R. CO., DESIROUS OF OBTAINING ADDITIONAL
TRAFFIC, ASKED THE COMMISSION TO ESTABLISH A THROUGH ROUTE FROM MEMPHIS
TO FT. SMITH VIA THE CONNECTING LINES OF THE ROCK ISLAND RAILROAD, THE
SUBIACO AND A LINE OF THE MISSOURI PACIFIC.  THE COMMISSION ORDERED THE
ESTABLISHMENT OF THE THROUGH ROUTE WITH THROUGH RATES AT THE SAME LEVEL
AS THE RATES THEN CHARGED OVER THE EXISTING THROUGH ROUTE BETWEEN
MEMPHIS AND FT. SMITH.  THIS COURT HELD THE ORDER INVALID AS INFRINGING
UPON THE RIGHTS OF THE MISSOURI PACIFIC UNDER THE SHORT-HAULING
PROVISIONS OF SECTION 15(4).  IF THE COMMISSION IS CORRECT IN THIS
CASE, IT COULD HAVE ACCOMPLISHED THE FORBIDDEN RESULT MERELY BY
ALTERING THE FORM OF ITS ORDER - I.E., INSTEAD OF ORDERING
ESTABLISHMENT OF A NEW THROUGH ROUTE, THE COMMISSION COULD HAVE ASSUMED
THE EXISTENCE OF A THROUGH ROUTE FROM MEMPHIS TO FT. SMITH VIA THE
LINES OF THE ROCK ISLAND, THE SUBIACO AND THE MISSOURI PACIFIC AND
ACCOMPLISHED THE IDENTICAL RESULT BY ORDERING REDUCTION OF THE SUM OF
THE LOCAL RATES OVER EACH PORTION OF THE ROUTE TO THE LEVEL OF THE RATE
OVER THE EXISTING THROUGH ROUTE. 

FN18  VIRGINIAN R. CO. V. UNITED STATES, 272 U.S. 658 (1926), IS
INAPPOSITE SINCE THROUGH ROUTES WERE THERE FOUND TO BE IN EXISTENCE BUT
COMMERCIALLY CLOSED SOLELY BECAUSE OF UNREASONABLE AND DISCRIMINATORY
RATES CHARGED BY THE VIRGINIAN OVER ITS PORTION OF THE ROUTE.  IN THIS
CASE, THERE IS NO FINDING THAT THE LOCAL RATE CHARGED BY THE MISSOURI
PACIFIC FROM LENORA TO CONCORDIA IS EITHER UNREASONABLE OR
DISCRIMINATORY.  SIMILARLY, THE DECISION IN ATCHISON, T.&S.F.R. CO. V.
UNITED STATES, 279 U.S. 768 (1929), IS NOT APPLICABLE TO THE FACTS OF
THIS CASE. 

THE COMMISSION'S ARGUMENT THAT APPELLANT'S RATES DISCRIMINATE AGAINST
OMAHA IN VIOLATION OF SECTION 3(1) OF THE ACT AND THEREBY CAUSE
APPELLANT TO LOSE THE PROTECTION OF SECTION 15(4) IS WITHOUT SUBSTANCE
BECAUSE THE COMMISSION DID NOT CONSIDER WHETHER THE RATES CHARGED BY
THE MISSOURI PACIFIC OVER ITS OWN LINES ARE DISCRIMINATORY, MUCH LESS
MAKE ANY FINDING TO THAT EFFECT. 
..END :















UNITED STATES V. GREAT NORTHERN RAILWAY CO. 343 U.S. 562 


NO. 151.  ARGUED JANUARY 8-9, 1952 - DECIDED JUNE 2, 1952 - 96 F. SUPP.
298, REVERSED. 


UNDER SEC. 15(3) AND (6) OF THE INTERSTATE COMMERCE ACT, THE
INTERSTATE COMMERCE COMMISSION ORDERED THE ESTABLISHMENT OF JOINT RATES
BY CERTAIN CARRIERS, IN LIEU OF COMBINATION RATES OVER THROUGH ROUTES
WHICH WERE ALREADY IN EXISTENCE, AND ORDERED A DIVISION OF REVENUES
BETWEEN THE CARRIERS FOR THE PURPOSE OF PROVIDING ADDITIONAL REVENUE
FOR A FINANCIALLY WEAK PARTICIPATING CARRIER.  HELD:  THE DISTRICT
COURT ERRED IN ENJOINING THE COMMISSION'S ORDER AS PROHIBITED BY SEC.
15(4).  PP. 563-578. 

1.  THE COMMISSION'S ORDER DID NOT ESTABLISH ANY THROUGH ROUTE, BUT
DID ESTABLISH JOINT RATES FOR THE ADMITTED PURPOSE OF ASSISTING THE
PARTICULAR CARRIER TO MEET ITS FINANCIAL NEEDS.  PP. 569-570. 

2.  THE PROHIBITION OF SEC. 15(4) AGAINST ESTABLISHING THROUGH ROUTES
FOR THE PURPOSE OF ASSISTING A CARRIER TO MEET ITS FINANCIAL NEEDS IS
NOT LIMITED TO CASES WHERE SHORT HAULING IS A PROBLEM.  PP. 570-572. 

3.  THE FINANCIAL NEEDS PROHIBITION OF SEC. 15(4) DOES NOT LIMIT THE
COMMISSION'S POWER TO ESTABLISH JOINT RATES GENERALLY, BUT DEALS ONLY
WITH THE POWER TO ESTABLISH A "THROUGH ROUTE AND JOINT RATES APPLICABLE
THERETO," I.E., THOSE JOINT RATES APPLICABLE TO A THROUGH ROUTE
ESTABLISHED BY THE COMMISSION.  SINCE THE COMMISSION DID NOT ESTABLISH
THE THROUGH ROUTES, THE PROHIBITION OF SEC. 15(4) IS INAPPLICABLE.  PP.
572-577. 

4.  THE COMMISSION IS EMPOWERED, IN THE PUBLIC INTEREST, TO CAUSE A
REDISTRIBUTION OF REVENUE BETWEEN TWO CARRIERS PARTICIPATING IN
TRANSPORTATION OF THROUGH TRAFFIC, AND MAY IN THAT CONNECTION CONSIDER
A BRANCH LINE'S VALUE IN PRODUCING PROFITABLE TRAFFIC FOR A RAILROAD. 
P. 577. 

5.  SINCE THE COMMISSION'S ORDER IN THIS CASE (WHICH ALSO DENIED THE
PARTICULAR CARRIER'S APPLICATION TO ABANDON ITS LINE) WAS ATTACKED ALSO
FOR WANT OF ESSENTIAL FINDINGS AND FOR LACK OF SUBSTANTIAL EVIDENCE
JUSTIFYING CONTINUED OPERATION OF THE LINE, AND SINCE IT IS THE
PRACTICE OF THIS COURT NOT TO REVIEW AN ADMINISTRATIVE RECORD IN THE
FIRST INSTANCE AFTER FINDING THAT A LOWER COURT HAS APPLIED AN
INCORRECT PRINCIPLE OF LAW, THE CASE IS REMANDED TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS.  PP. 577-578. 

UNITED STATES ET AL. V. GREAT NORTHERN RAILWAY CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MINNESOTA. 

IN A SUIT TO ENJOIN ENFORCEMENT OF AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION, 275 I.C.C. 512, A THREE-JUDGE DISTRICT COURT
GRANTED THE RELIEF PRAYED.  96 F. SUPP. 298.  ON DIRECT APPEAL TO THIS
COURT UNDER 28 U.S.C. SEC. 1253, REVERSED AND REMANDED, P. 578. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT TO ENJOIN ENFORCEMENT OF AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION ESTABLISHING JOINT RATES OVER THROUGH ROUTES.  IN
THIS CASE, UNLIKE THOMPSON V. UNITED STATES, 343 U.S. 549 (DECIDED THIS
DAY), THE THROUGH ROUTES IN QUESTION ALREADY EXIST SINCE THE CARRIERS
CONCERNED HAVE CONTINUOUSLY PROVIDED THROUGH SERVICE OVER THE SAME
THROUGH ROUTES AT A COMBINATION OF SEPARATELY ESTABLISHED RATES.  THE
COMMISSION DID NOT CHANGE ANY ROUTE OR ALTER THE TOTAL AMOUNT CHARGED
FOR ANY SHIPMENT BUT DID ORDER THE ESTABLISHMENT OF JOINT RATES IN
PLACE OF THE COMBINATION RATES.  THE COMMISSION ALSO ORDERED A DIVISION
OF REVENUES BETWEEN THE CARRIERS IN ORDER TO PROVIDE ADDITIONAL REVENUE
FOR ONE FINANCIALLY WEAK CARRIER.  THE QUESTION PRESENTED IS WHETHER
THE COMMISSION HAS POWER TO ESTABLISH JOINT RATES FOR THE PURPOSE OF
ASSISTING A CARRIER TO MEET ITS FINANCIAL NEEDS. 

THE MONTANA WESTERN RAILWAY COMPANY, INCORPORATED IN 1909, FURNISHES
THE ONLY RAIL SERVICE OVER THE TWENTY MILES BETWEEN VALIER, MONTANA,
AND CONRAD, MONTANA, WHERE CONNECTION IS MADE WITH THE INTERSTATE RAIL
LINES OF THE APPELLEE GREAT NORTHERN RAILWAY.  APPELLEE AND A LAND
IRRIGATION COMPANY, NOW CALLED THE VALIER COMPANY, FURNISHED THE MONEY
TO BUILD THE RAILROAD.  THE MONTANA WESTERN'S STOCK IS OWNED BY THE
VALIER COMPANY AND ITS BONDS IN THE SUM OF $165,000 ARE HELD BY
APPELLEE. 

OPERATION OF THE MONTANA WESTERN HAS BEEN UNPROFITABLE.  AN AVERAGE
ANNUAL DEFICIT OF OVER $18,000 HAS BEEN EXPERIENCED DURING THE FIFTEEN
YEARS PRECEDING THIS CASE.  THE MONTANA WESTERN'S GENERAL MANAGER
ESTIMATED THAT THE TOTAL ANNUAL REVENUE DEFICIENCY UNDER EXISTING RATES
WOULD AMOUNT TO $33,825.  IN ADDITION TO THE ANTICIPATED OPERATING
LOSSES, CONTINUED OPERATION OF THE MONTANA WESTERN WOULD REQUIRE
CONSTRUCTION OF A NEW BRIDGE AND A NEW ROUNDHOUSE AND REPLACEMENT OF A
LARGE NUMBER OF CROSSTIES.  THE MONTANA WESTERN HAS NOT BEEN ABLE TO
SATISFY EITHER ITS BONDED INDEBTEDNESS OR THE INTEREST THEREON. 
MOREOVER, APPELLEE HAS ADVANCED MONEY TO PAY OPERATING LOSSES TO THE
EXTENT THAT MONTANA WESTERN'S TOTAL DEBT TO APPELLEE AMOUNTED TO
$737,604 AT THE BEGINNING OF THESE PROCEEDINGS.  APPARENTLY BECAUSE OF
THE MONTANA WESTERN'S VALUE AS A FEEDER LINE PROVIDING PROFITABLE
TRAFFIC, APPELLEE OFFERED TO PROVIDE ADDITIONAL FUNDS FOR THE
REHABILITATION OF THE MONTANA WESTERN AND OFFERED TO EXTEND THE
MATURITY DATE OF THE MORTGAGE BONDS.  HOWEVER, THE MONTANA WESTERN'S
OFFICERS REFUSED TO EXTEND THE BONDS ON THE GROUND THAT THERE WAS NO
HOPE OF EVER PAYING OFF THE INDEBTEDNESS.  THEREAFTER, APPELLEE
ANNOUNCED THAT:  "IN VIEW OF THE MONTANA WESTERN'S ATTITUDE  ...  GREAT
NORTHERN CANNOT BE EXPECTED TO MAKE FURTHER CASH ADVANCES." 

THE MONTANA WESTERN APPLIED TO THE INTERSTATE COMMERCE COMMISSION FOR
THE PERMISSION TO ABANDON ITS ENTIRE LINE, REQUIRED UNDER 49 U.S.C.
SEC. 1(18)-(22), ON THE GROUND THAT, WITHOUT FINANCIAL ASSISTANCE FROM
APPELLEE, CONTINUED OPERATION OF THE LINE WAS NOT ECONOMICALLY
FEASIBLE.  AFTER HEARINGS IN THE ABANDONMENT PROCEEDING HAD
DEMONSTRATED THE FINANCIAL PLIGHT OF THE MONTANA WESTERN, THE VALIER
COMMUNITY CLUB, REPRESENTING SHIPPERS IN THE VALIER AREA, INSTITUTED
ANOTHER ACTION BEFORE THE COMMISSION.  (FN1)  THE SHIPPERS' PURPOSE WAS
TO PRESERVE EXISTING THROUGH ROUTES ORIGINATING AT VALIER BY SECURING
FOR THE MONTANA WESTERN THE ADDITIONAL REVENUE NEEDED FOR CONTINUED
OPERATION.  SINCE NINETY PERCENT OF THE MONTANA WESTERN'S REVENUE IS
DERIVED FROM GRAIN TRAFFIC, ADDITIONAL REVENUE NECESSARILY HAD TO BE
OBTAINED THROUGH ADJUSTMENT IN THE GRAIN RATE STRUCTURE. 

GRAIN NOW MOVES ON THROUGH ROUTES FROM VALIER OVER THE MONTANA
WESTERN LINE TO CONRAD WHERE APPELLEE CONTINUES THE THROUGH SHIPMENT TO
MARKET.  UNDER THE EXISTING GRAIN RATE STRUCTURE, A SHIPPER PAYS A
THROUGH RATE OF 71 1/2 CENTS PER HUNDRED POUNDS ON A SHIPMENT FROM
VALIER TO MINNEAPOLIS.  THIS THROUGH RATE IS ALSO CALLED A COMBINATION
RATE BECAUSE IT IS A COMBINATION OF MONTANA WESTERN'S SEPARATELY
ESTABLISHED PROPORTIONAL RATE OF 9 CENTS FROM VALIER TO CONRAD PLUS
APPELLEE'S PROPORTIONAL RATE OF 62 1/2 CENTS TO MINNEAPOLIS.  (FN2)
COMPLAINANT VALIER COMMUNITY CLUB DID NOT PROPOSE TO ALTER ANY EXISTING
THROUGH ROUTES OR CHANGE THE AMOUNT OF ANY THROUGH RATES.  RATHER,
COMPLAINANT ASKED THE COMMISSION TO INCREASE MONTANA WESTERN'S REVENUE
BY SUBSTITUTING "JOINT RATES" FOR THE PRESENT COMBINATION RATE AND
DETERMINING A DIVISION OF JOINT RATES THAT WOULD HAVE THE EFFECT OF
INCREASING THE MONTANA WESTERN'S PRESENT COMPENSATION OF 9 CENTS FOR
THE VALIER TO CONRAD SEGMENT OF THE THROUGH SHIPMENTS. 

AFTER HEARING EVIDENCE ON THE COMPLAINT, AN EXAMINER RECOMMENDED THAT
THE MONTANA WESTERN'S APPLICATION FOR ABANDONMENT BE DENIED BECAUSE OF
THE PUBLIC NEED FOR RAILROAD SERVICE IN THE VALIER AREA.  HE FURTHER
RECOMMENDED THAT JOINT RATES ON GRAIN BE ESTABLISHED FROM VALIER TO ALL
INTERSTATE POINTS ON APPELLEE'S LINES AT THE LEVEL OF THE PRESENT
COMBINATION RATES.  AFTER COMPARING DIVISION OF REVENUES ON SIMILAR
JOINT RATES ESTABLISHED ON OTHER LINES IN THE AREA, THE EXAMINER
RECOMMENDED THAT THE MONTANA WESTERN RECEIVE A DIVISION OF 10 CENTS, AN
INCREASE OF 1 CENT OVER THE PRESENT PROPORTIONAL RATE.  THE INTERSTATE
COMMERCE COMMISSION AGREED THAT THE PUBLIC NEED FOR RAIL SERVICE IN THE
VALIER AREA CALLED FOR DENIAL OF THE ABANDONMENT APPLICATION.  THE
COMMISSION ALSO AGREED THAT THE PUBLIC INTEREST REQUIRED ESTABLISHMENT
OF JOINT RATES.  HOWEVER, THE COMMISSION, STATING THAT FINANCIAL NEEDS
WERE A JUSTIFICATION FOR RELATIVELY HIGH DIVISIONS, ORDERED, FOR
EXAMPLE, THAT THE MONTANA WESTERN RECEIVE 16.3 CENTS AS ITS SHARE OF
THE 71 1/2 CENTS THROUGH RATE ON A SHIPMENT FROM VALIER TO
MINNEAPOLIS.  275 I.C.C. 512.  IT IS CONCEDED BY THE COMMISSION IN THIS
COURT THAT ITS ORDER ESTABLISHING JOINT RATES WAS BUT A MEANS TO THE
END OF ASSISTING THE MONTANA WESTERN TO MEET OBVIOUS FINANCIAL NEEDS. 

APPELLEE BROUGHT THIS ACTION IN THE DISTRICT COURT TO ENJOIN
ENFORCEMENT OF THAT PART OF THE COMMISSION'S ORDER ESTABLISHING JOINT
RATES AND DIVISIONS OF REVENUES.  A THREE-JUDGE COURT REJECTED THE
COMMISSION'S CONTENTION THAT SECTION 15, PARAGRAPHS (3) AND (6), OF THE
INTERSTATE COMMERCE ACT AUTHORIZED THE ORDER; INSTEAD, IT ENJOINED
ENFORCEMENT OF THE ORDER AS ONE PROHIBITED BY A PROVISION OF SECTION
15(4).  (FN3)  96 F. SUPP. 298.  THE RELEVANT STATUTES ARE SET FORTH IN
THE MARGIN.  (FN4)  THE CASE WAS BROUGHT HERE ON DIRECT APPEAL BY THE
UNITED STATES, THE INTERSTATE COMMERCE COMMISSION, THE VALIER COMMUNITY
CLUB, THE MONTANA WESTERN RAILROAD, AND THE BOARD OF RAILROAD
COMMISSIONERS OF THE STATE OF MONTANA, APPELLANTS.  28 U.S.C. (SUPP.
IV) SEC. 1253. 

FIRST. UNDER SECTION 15(3), THE COMMISSION IS EMPOWERED TO "ESTABLISH
THROUGH ROUTES, JOINT CLASSIFICATIONS, AND JOINT RATES, FARES, OR
CHARGES."  THE ONLY PERTINENT LIMITATION TO THEIR ESTABLISHMENT FOUND
IN SECTION 15(3) ITSELF IS THAT THE COMMISSION DEEM SUCH ACTION
"NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST." 

ONCE JOINT RATES ARE LAWFULLY ESTABLISHED, THE COMMISSION IS
AUTHORIZED BY SECTION 15(6) TO PRESCRIBE "JUST, REASONABLE, AND
EQUITABLE DIVISIONS" OF REVENUE BETWEEN THE PARTICIPATING CARRIERS AND
TO DETERMINE SUCH DIVISIONS BY GIVING DUE CONSIDERATION TO VARIOUS
LISTED FACTORS, INCLUDING "THE AMOUNT OF REVENUE REQUIRED" BY
PARTICIPATING CARRIERS.  IN THE NEW ENGLAND DIVISIONS CASE, 261 U.S.
184, 189-195 (1923), THIS COURT HELD THAT SECTION 15(6) WAS DESIGNED
FOR AFFIRMATIVE USE IN RELIEVING THE FINANCIAL NEEDS OF WEAK CARRIERS. 
(FN5) 

15(3).  PRIOR TO THE TRANSPORTATION ACT OF 1940, SECTION 15(4)
CONTAINED TWO PROVISIONS, ONE BEING THE RESTRICTION ON THE COMMISSION'S
POWER TO ESTABLISH A THROUGH ROUTE THAT WOULD REQUIRE A CARRIER TO
SHORT HAUL ITSELF, CONSIDERED IN THOMPSON V. UNITED STATES, 343 U.S.
549 (DECIDED THIS DAY), AND THE OTHER GRANTING THE COMMISSION
ADDITIONAL POWER TO ESTABLISH THROUGH ROUTES IN EMERGENCIES.  THE 1940
REVISION OF SECTION 15(4) RETAINED THE EMERGENCY THROUGH ROUTE
PROVISION, INCREASED THE POWER OF THE COMMISSION TO ESTABLISH THROUGH
ROUTES WHICH REQUIRE A CARRIER TO SHORT HAUL ITSELF AND ADDED THE
FOLLOWING PROVISION: 

"NO THROUGH ROUTE AND JOINT RATES APPLICABLE THERETO SHALL BE
ESTABLISHED BY THE COMMISSION FOR THE PURPOSE OF ASSISTING ANY CARRIER
THAT WOULD PARTICIPATE THEREIN TO MEET ITS FINANCIAL NEEDS." 

THE COMMISSION'S ORDER IN THIS CASE DID NOT ESTABLISH ANY THROUGH
ROUTE, BUT DID ESTABLISH JOINT RATES FOR THE ADMITTED PURPOSE OF
ASSISTING THE MONTANA WESTERN RAILWAY TO MEET ITS FINANCIAL NEEDS.  AS
STATED ABOVE, THE DISTRICT COURT HELD THAT SUCH AN ORDER WAS PROHIBITED
BY THE ABOVE-QUOTED PROVISION OF SECTION 15(4). 

SECOND.  MUCH OF APPELLANTS' ARGUMENT AGAINST THE HOLDING OF THE
DISTRICT COURT MISSES THE MARK.  APPELLANTS CONSTRUE THE PROHIBITION
AGAINST ESTABLISHING THROUGH ROUTES FOR THE PURPOSE OF ASSISTING A
CARRIER TO MEET ITS FINANCIAL NEEDS AS LIMITED TO CASES WHERE SHORT
HAULING IS A PROBLEM.  APPELLANTS WOULD HAVE THE COURT READ THE
FINANCIAL ASSISTANCE PROHIBITION AS MERELY ANOTHER RESTRICTION ON THE
COMMISSION'S POWER TO REQUIRE A CARRIER TO SHORT HAUL ITSELF IN
ADDITION TO THE RESTRICTION AGAINST SHORT HAULING FOUND IN THE FIRST
PROVISION OF SECTION 15(4).  SINCE EXISTENCE OF A SHORT-HAULING PROBLEM
PRESUPPOSES THE EXISTENCE OF ALTERNATE RAIL CONNECTIONS, SUCH A PROBLEM
CANNOT ARISE IN THIS CASE WHERE THE MONTANA WESTERN IS THE ONLY CARRIER
SERVING VALIER. 

APPELLANTS WOULD HAVE THE COURT IGNORE THE FACT THAT THE FINANCIAL
ASSISTANCE PROHIBITION STANDS AS A SEPARATE SENTENCE IN SECTION 15(4). 
CERTAINLY THAT SENTENCE IS GRAMMATICALLY CAPABLE OF INDEPENDENT
SIGNIFICANCE.  AND IT MAY BE NOTED THAT THE SENTENCE IS DIRECTED TO A
SPECIFIC PROBLEM THAT AROSE IN THE ADMINISTRATION OF THE COMMISSION'S
POWER UNDER SECTION 15(3) AND (4) TO ESTABLISH THROUGH ROUTES - A
PROBLEM QUITE SEPARATE FROM THAT PRESENTED BY THE RESTRICTION AGAINST
SHORT HAULING.  THIS DIFFERENT PROBLEM ARISES WHEN A CARRIER ASKS THE
COMMISSION TO ESTABLISH A THROUGH ROUTE, NOT PRIMARILY TO SERVE ANY
NEED OF THE SHIPPING PUBLIC FOR ADDITIONAL ROUTES, BUT BECAUSE THE
CARRIER NEEDS ADDITIONAL REVENUE WHICH IT SEEKS TO OBTAIN BY DIVERTING
TO ITS OWN LINE TRAFFIC SERVED BY OTHER ROUTES.  THE QUESTION PRESENTED
IN SUCH A CASE IS WHETHER THE COMMISSION'S POWER TO ESTABLISH THROUGH
ROUTES "IN THE PUBLIC INTEREST" EXTENDS TO ESTABLISHING THROUGH ROUTES,
WITH THE RESULTING REARRANGEMENT IN THE MOVEMENT OF RAIL TRAFFIC, FOR
THE PURPOSE OF MEETING THE FINANCIAL NEEDS OF A CARRIER.  THIS QUESTION
WAS PRESENTED IN THE THROUGH ROUTE LITIGATION THAT LED TO THE 1940
REVISION OF SECTION 15(4)  (FN6)  AND WAS REPEATEDLY RAISED DURING THE
LEGISLATIVE CONSIDERATION OF THE AMENDEMENTS TO SECTION 15(4).  (FN7) 

AS REVISED IN 1940, SECTION 15(4) DEALS AT LENGTH WITH THE SHORT-HAUL
PROBLEM AND, IN ADDITION, CONTAINS THE SEPARATE SENTENCE PROHIBITING
THE ESTABLISHMENT OF THROUGH ROUTES FOR THE PURPOSE OF ASSISTING A
CARRIER TO MEET ITS FINANCIAL NEEDS.  SINCE THIS PROHIBITION STANDS AS
AN INDEPENDENT SENTENCE DEALING WITH AN INDEPENDENT PROBLEM, WE CANNOT
ACCEPT APPELLANTS' SUGGESTION THAT THE SENTENCE CAN BE IGNORED UNLESS A
SHORT-HAULING PROBLEM IS ALSO INVOLVED IN THE CASE. 

THIRD. ALTHOUGH THE PROHIBITION AGAINST ESTABLISHMENT OF THROUGH
ROUTES AND JOINT RATES APPLICABLE THERETO FOR THE PURPOSE OF ASSISTING
A CARRIER TO MEET ITS FINANCIAL NEEDS CANNOT BE READ AS LIMITED TO
SHORT-HAULING SITUATIONS, IT BY NO MEANS FOLLOWS THAT THE PROHIBITION
MAY BE READ AS APPLICABLE TO ALL COMMISSION ORDERS ESTABLISHING JOINT
RATES. 

THE INTERSTATE COMMERCE ACT CONTEMPLATES THE EXISTENCE OF THROUGH
ROUTES IN THE ABSENCE OF JOINT RATES.  (FN8)  AND THIS COURT EXPRESSLY
HAS APPROVED THE COMMISSION'S CONSISTENT RECOGNITION OF THE EXISTENCE
OF THROUGH ROUTES WHETHER THE THROUGH RATES APPLICABLE THERETO ARE
JOINT RATES OR COMBINATIONS OF SEPARATELY ESTABLISHED RATES.  (FN9)  AS
A RESULT, THE ESTABLISHMENT OF JOINT RATES IS AN ACT SEPARATE AND
DISTINCT UNDER THE STATUTE FROM THE ESTABLISHMENT OF THROUGH ROUTES. 
IN THIS CASE, THE COMMISSION ORDERED THE ESTABLISHMENT OF JOINT RATES
OVER THROUGH ROUTES, VALIER TO MINNEAPOLIS FOR EXAMPLE, WHICH WERE
ALREADY IN EXISTENCE ON A COMBINATION OF PROPORTIONAL RATES.  UNDER THE
COMMISSION'S ORDER, THE SAME CARS WOULD MOVE OVER THE SAME TRACKS TO
THE SAME DESTINATIONS AND AT THE SAME THROUGH RATES AS BEFORE.  IT IS A
MATTER OF LITTLE CONCERN TO SHIPPERS WHETHER COMBINATION RATES OR JOINT
RATES AT THE SAME LEVEL ARE CHARGED, SO LONG AS THE THROUGH ROUTE
CONTINUES TO BE AVAILABLE.  (FN10)  WHATEVER THEORIES MAY BE ADVANCED
AS TO DETERMINING THE EXISTENCE OF A THROUGH ROUTE WHERE NO TRAFFIC
PASSES OVER THE ROUTE, SEE THOMPSON V. UNITED STATES, 343 U.S. 549
(DECIDED THIS DAY), IT IS NOT QUESTIONED THAT THROUGH ROUTES OVER THE
MONTANA WESTERN AND APPELLEE'S LINES LONG HAVE BEEN IN EXISTENCE. 
THESE THROUGH ROUTES WERE NOT ESTABLISHED BY THE COMMISSION IN THIS
CASE.    COMMISSION ACTION ESTABLISHING JOINT RATES IN LIEU OF
COMBINATION RATES FOR SERVICE OVER THROUGH ROUTES IS A PROPER FORM OF
REGULATION.  (FN11)  IT IS CRUCIAL TO THIS CASE THAT THE FINANCIAL
NEEDS PROHIBITION OF SECTION 15(4) DOES NOT LIMIT THE COMMISSION'S
POWER TO ESTABLISH JOINT RATES GENERALLY, BUT DEALS ONLY WITH THE POWER
TO ESTABLISH A "THROUGH ROUTE AND JOINT RATES APPLICABLE THERETO,"
I.E., THOSE JOINT RATES APPLICABLE TO A THROUGH ROUTE ESTABLISHED BY
THE COMMISSION.  SINCE THE ORDER IN THIS CASE DID NOT ESTABLISH A
THROUGH ROUTE, SECTION 15(4) DOES NOT AFFECT THE COMMISSION'S POWER IN
THIS CASE.  AND, BECAUSE JOINT RATES PUBLISHED BY TWO OR MORE CARRIERS
ARE BY DEFINITION ALWAYS APPLICABLE TO A THROUGH ROUTE OVER THE LINES
OF THOSE CARRIERS, READING THE FINANCIAL ASSISTANCE PROHIBITION AS
AFFECTING THIS ORDER ESTABLISHING ONLY JOINT RATES FOR EXISTING THROUGH
ROUTES WOULD RENDER THE WORDS "APPLICABLE THERETO" SURPLUSAGE,
ATTRIBUTING TO CONGRESS A USELESS AND MISLEADING USE OF WORDS. 

IT IS ONE FORM OF REGULATION TO REDISTRIBUTE REVENUES BETWEEN
CONNECTING CARRIERS BY DETERMINING DIVISIONS OF REVENUES RECEIVED ON
EXISTING THROUGH ROUTES.  THE ECONOMIC RAMIFICATIONS ARE QUITE
DIFFERENT IF THE COMMISSION ESTABLISHES THROUGH ROUTES WHICH DIVERT
TRAFFIC TO THE LINES OF A FINANCIALLY WEAK CARRIER.  SUCH ACTION NOT
ONLY SERVES TO ASSIST THAT CARRIER FINANCIALLY BUT CAN ALSO, AT THE
SAME TIME, CAUSE IMPORTANT CHANGES IN THE MOVEMENT OF TRAFFIC,
DIVERTING TRAFFIC TO A NEW GEOGRAPHIC AREA AT THE EXPENSE OF OTHER
CARRIERS AND OTHER AREAS.  CONGRESS AMENDED SECTION 15(4) TO PROHIBIT
TINKERING WITH THROUGH ROUTES FOR THE PURPOSE OF ASSISTING A CARRIER TO
MEET ITS FINANCIAL NEEDS.  BUT THE PROVISIONS OF SECTION 15(4) - THE
RESTRICTIONS AGAINST SHORT HAULING, THE FINANCIAL-NEEDS PROHIBITION AND
THE EMERGENCY ROUTE PROVISION - ALL DEAL WITH THE COMMISSION'S POWER TO
ESTABLISH THROUGH ROUTES. 

CONGRESS COULD WELL HAVE PROHIBITED THE COMMISSION FROM CONSIDERING
FINANCIAL NEEDS IN ISSUING ANY ORDER UNDER SECTION 15(3).  THIS WAS
PROPOSED IN ONE BILL AND EXPRESSLY REJECTED BY A CONGRESSIONAL
COMMITTEE.  (FN12)  OR, CONGRESS COULD HAVE PROHIBITED CONSIDERATION OF
FINANCIAL NEEDS IN ORDERING ESTABLISHMENT OF JOINT THROUGH ROUTES WHERE
THROUGH ROUTES WERE IN EXISTENCE, AS WAS ALSO PROPOSED.  (FN13)
INSTEAD, CONGRESS ADOPTED A PROVISION PROHIBITING RELIANCE ON FINANCIAL
NEEDS ONLY IN RESPECT TO ORDERS ESTABLISHING THROUGH ROUTES.  IT IS OUR
JUDICIAL FUNCTION TO APPLY STATUTES ON THE BASIS OF WHAT CONGRESS HAS
WRITTEN, NOT WHAT CONGRESS MIGHT HAVE WRITTEN.  WHERE, AS HERE, THE
COMMISSION DID NOT ESTABLISH THROUGH ROUTES, SECTION 15(4) HAS NO
APPLICATION.  (FN14) 

BEGINNING WITH THE TRANSPORTATION ACT OF 1920, CONGRESS HAS REGULATED
THE RAILROADS NOT ONLY TO PROHIBIT SUCH ABUSES AS EXCESSIVE AND
DISCRIMINATORY RATES BUT ALSO WITH THE PURPOSE OF ASSURING ADEQUATE
TRANSPORTATION SERVICE. 

THE NEW ENGLAND DIVISIONS CASE, SUPRA.  THE RELATIONSHIP BETWEEN THIS
TRANSPORTATION POLICY AND THE POWER OF THE COMMISSION TO PRESCRIBE
DIVISIONS OF JOINT RATES WAS DESCRIBED BY THE COURT IN UNITED STATES V.
ABILENE & SOUTHERN R. CO., 265 U.S. 274, 284-285 (1924): 

"IT IS SETTLED THAT IN DETERMINING WHAT THE DIVISIONS SHOULD BE, THE
COMMISSION MAY, IN THE PUBLIC INTEREST, TAKE INTO CONSIDERATION THE
FINANCIAL NEEDS OF A WEAKER ROAD; AND THAT IT MAY BE GIVEN A DIVISION
LARGER THAN JUSTICE MERELY AS BETWEEN THE PARTIES WOULD SUGGEST 'IN
ORDER TO MAINTAIN IT IN EFFECTIVE OPERATION AS PART OF AN ADEQUATE
TRANSPORTATION SYSTEM,' PROVIDED THE SHARE LEFT TO ITS CONNECTIONS IS
'ADEQUATE TO AVOID A CONFISCATORY RESULT.'  DAYTON-GOOSE CREEK RY. CO.
V. UNITED STATES, 263 U.S. 456, 477; NEW ENGLAND DIVISIONS CASE, 261
U.S. 184, 194, 195." 

THE POWER OF THE COMMISSION TO ESTABLISH JOINT RATES IS SIMILARLY
ESSENTIAL TO THE CONGRESSIONAL POLICY OF ASSURING ADEQUATE
TRANSPORTATION SERVICE, AS EXPRESSLY STATED IN THE NEW ENGLAND
DIVISIONS CASE, SUPRA, AT 194-195.  THE TRANSPORTATION ACT OF 1940
REENACTED THE PROVISIONS OF THE INTERSTATE COMMERCE ACT IMPLEMENTING
THAT POLICY AND ADDED THAT THE ACT WAS TO BE ADMINISTERED SO AS TO
DEVELOP, COORDINATE, AND PRESERVE AN ADEQUATE "NATIONAL TRANSPORTATION
SYSTEM."  (FN15)  SINCE THE FINANCIAL ASSISTANCE PROHIBITION OF SECTION
15(4), ADDED BY THE TRANSPORTATION ACT OF 1940, RESTRICTED THE
COMMISSION'S POWER OVER JOINT RATES ONLY IN RESPECT TO THOSE JOINT
RATES APPLICABLE TO THROUGH ROUTES ESTABLISHED BY THE COMMISSION, THE
COMMISSION'S POWER TO ESTABLISH JOINT RATES OVER EXISTING THROUGH
ROUTES REMAINS UNIMPAIRED. 

AS A RESULT, THE COMMISSION IS EMPOWERED, IN THE PUBLIC INTEREST, TO
CAUSE A REDISTRIBUTION OF REVENUE BETWEEN TWO CARRIERS PARTICIPATING IN
TRANSPORTATION OF THROUGH TRAFFIC.  IT IS IMMATERIAL, FROM THE
VIEWPOINT OF THE PUBLIC, WHETHER THE REVENUE WAS OBTAINED BY CHARGING
JOINT RATES ESTABLISHED BY AGREEMENT OF THE CARRIERS OR BY A
COMBINATION OF SEPARATELY ESTABLISHED RATES.  AND, FROM THE VIEWPOINT
OF THE NATIONAL TRANSPORTATION SYSTEM, IT IS IMMATERIAL WHETHER AN
INDEPENDENTLY OWNED RAIL LINE IS SAVED FROM ABANDONMENT BY SUCH A
REDISTRIBUTION OF REVENUE OR WHETHER PERMISSION TO ABANDON A BRANCH OF
A MAIN LINE CARRIER IS DENIED ON THE BASIS OF A SIMILAR REALLOCATION OF
REVENUE.  JUST AS THE COMMISSION MAY EXAMINE INTO THE VALUE OF A BRANCH
LINE AS "FEEDING" ADDITIONAL TRAFFIC TO THE MAIN LINE OF A SINGLE
CARRIER, THE VALUE OF THE MONTANA WESTERN AS PRODUCING TRAFFIC FOR
APPELLEE NEED NOT BE DISREGARDED BY THE COMMISSION.  (FN16)  INDEED,
THE MONTANA WESTERN'S VALUE IN PRODUCING PROFITABLE TRAFFIC FOR
APPELLEE IS SHOWN BY THE FACT THAT APPELLEE WAS WILLING TO CONTINUE AND
EVEN INCREASE ITS FINANCIAL SUPPORT WHILE THE MONTANA WESTERN ITSELF
CHOSE TO SEEK ABANDONMENT. 

WE HOLD THAT THE DISTRICT COURT ERRED IN ENJOINING THE COMMISSION'S
ORDER AS PROHIBITED BY SECTION 15(4).  APART FROM THE QUESTION OF THE
COMMISSION'S POWER TO ESTABLISH JOINT RATES, THE COMMISSION'S ORDER
ESTABLISHING JOINT RATES AND DIVISIONS IN THIS CASE IS ATTACKED FOR
WANT OF ESSENTIAL FINDINGS AND FOR LACK OF SUBSTANTIAL EVIDENCE
JUSTIFYING CONTINUED OPERATION OF THIS PARTICULAR CARRIER.  SINCE IT IS
THE PRACTICE OF THIS COURT NOT TO REVIEW AN ADMINISTRATIVE RECORD IN
THE FIRST INSTANCE AFTER FINDING THAT A LOWER COURT HAS APPLIED AN
INCORRECT PRINCIPLE OF LAW, (FN17) THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  APPELLEE WAS NOT A PARTY BEFORE THE COMMISSION UNTIL THIS
COMPLAINT WAS FILED.  THE RECORD OF PRIOR HEARINGS IN THE ABANDONMENT
PROCEEDING WAS INCORPORATED INTO THE COMPLAINT PROCEEDING AND APPELLEE
WAS AFFORDED THE OPPORTUNITY TO CROSS-EXAMINE THE WITNESSES WHO HAD
PREVIOUSLY TESTIFIED. 

FN2  THE LOCAL RATE FROM CONRAD, MONTANA, TO MINNEAPOLIS IS 65 1/2
CENTS.  WHEN A THROUGH RATE CONSISTS OF A COMBINATION OF RATES FOR
INTERMEDIATE DISTANCES, THE RATE FOR ONE SEGMENT OF THE SHIPMENT IS
REFERRED TO AS A PROPORTIONAL RATE WHERE, AS HERE, THAT RATE IS LOWER
THAN THE LOCAL RATE OVER THAT SEGMENT.  SEE ATCHISON, T.&S.F.R. CO. V.
UNITED STATES, 279 U.S. 768, 771 (1929); BERRY, A STUDY OF PROPORTIONAL
RATES, 10 I.C.C. PRACT.  J. 545 (1943). 

FN3  THE COMMISSION DID NOT DISCUSS SECTION 15(4) IN ITS REPORT.  WE
WERE ADVISED AT THE BAR OF THIS COURT THAT THE QUESTION PRESENTED BY
THAT SECTION WAS FIRST RAISED BEFORE THE COMMISSION ON A PETITION FOR
RECONSIDERATION WHICH WAS DENIED WITHOUT OPINION.  SINCE APPELLANTS,
INCLUDING THE COMMISSION, HAVE CONSIDERED THE SECTION 15(4) QUESTION AS
HAVING BEEN PROPERLY RAISED BEFORE THE COMMISSION, WE ALSO TREAT THE
QUESTION AS PROPERLY BEFORE US.  COMPARE UNEMPLOYMENT COMPENSATION
COMMISSION V. ARAGON, 329 U.S. 143, 155 (1946); UNITED STATES V.
HANCOCK TRUCK LINES, 324 U.S. 774 (1945); GENERAL TRANSP.  CO. V.
UNITED STATES, 65 F. SUPP. 981 (D. MASS. 1946), AFF'D, 329 U.S. 668
(1946)(WAIVER ISSUE NOT RAISED ON APPEAL). 

FN4  "(3)  THE COMMISSION MAY, AND IT SHALL WHENEVER DEEMED BY IT TO
BE NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST, AFTER FULL HEARING
UPON COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, ESTABLISH
THROUGH ROUTES, JOINT CLASSIFICATIONS, AND JOINT RATES, FARES, OR
CHARGES, APPLICABLE TO THE TRANSPORTATION OF PASSENGERS OR PROPERTY BY
CARRIERS SUBJECT TO THIS PART,  ...  ."  54 STAT. 911, 49 U.S.C. SEC.
15(3). 

"(4) IN ESTABLISHING ANY SUCH THROUGH ROUTE THE COMMISSION SHALL NOT
(EXCEPT AS PROVIDED IN SECTION 3, AND EXCEPT WHERE ONE OF THE CARRIERS
IS A WATER LINE) REQUIRE ANY CARRIER BY RAILROAD, WITHOUT ITS CONSENT,
TO EMBRACE IN SUCH ROUTE SUBSTANTIALLY LESS THAN THE ENTIRE LENGTH OF
ITS RAILROAD AND OF ANY INTERMEDIATE RAILROAD OPERATED IN CONJUNCTION
AND UNDER A COMMON MANAGEMENT OR CONTROL THEREWITH, WHICH LIES BETWEEN
THE TERMINI OF SUCH PROPOSED THROUGH ROUTE, (A) UNLESS SUCH INCLUSION
OF LINES WOULD MAKE THE THROUGH ROUTE UNREASONABLY LONG AS COMPARED
WITH ANOTHER PRACTICABLE THROUGH ROUTE WHICH COULD OTHERWISE BE
ESTABLISHED, OR (B) UNLESS THE COMMISSION FINDS THAT THE THROUGH ROUTE
PROPOSED TO BE ESTABLISHED IS NEEDED IN ORDER TO PROVIDE ADEQUATE, AND
MORE EFFICIENT OR MORE ECONOMIC, TRANSPORTATION: PROVIDED, HOWEVER,
THAT IN PRESCRIBING THROUGH ROUTES THE COMMISSION SHALL, SO FAR AS IS
CONSISTENT WITH THE PUBLIC INTEREST, AND SUBJECT TO THE FOREGOING
LIMITATIONS IN CLAUSES (A) AND (B), GIVE REASONABLE PREFERENCE TO THE
CARRIER BY RAILROAD WHICH ORIGINATES THE TRAFFIC.  NO THROUGH ROUTE AND
JOINT RATES APPLICABLE THERETO SHALL BE ESTABLISHED BY THE COMMISSION
FOR THE PURPOSE OF ASSISTING ANY CARRIER THAT WOULD PARTICIPATE THEREIN
TO MEET ITS FINANCIAL NEEDS.  IN TIME OF SHORTAGE OF EQUIPMENT,
CONGESTION OF TRAFFIC, OR OTHER EMERGENCY DECLARED BY THE COMMISSION,
IT MAY (EITHER UPON COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT
COMPLAINT, AT ONCE, IF IT SO ORDERS, WITHOUT ANSWER OR OTHER FORMAL
PLEADINGS BY THE INTERESTED CARRIER OR CARRIERS, AND WITH OR WITHOUT
NOTICE, HEARING, OR THE MAKING OR FILING OF A REPORT, ACCORDING AS THE
COMMISSION MAY DETERMINE) ESTABLISH TEMPORARILY SUCH THROUGH ROUTES AS
IN ITS OPINION ARE NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST."  54
STAT. 911-912, 49 U.S.C. SEC. 15(4). 

"(6)  WHENEVER, AFTER FULL HEARING UPON COMPLAINT OR UPON ITS OWN
INITIATIVE, THE COMMISSION IS OF OPINION THAT THE DIVISIONS OF JOINT
RATES, FARES, OR CHARGES, APPLICABLE TO THE TRANSPORTATION OF
PASSENGERS OR PROPERTY, ARE OR WILL BE UNJUST, UNREASONABLE,
INEQUITABLE, OR UNDULY PREFERENTIAL OR PREJUDICIAL AS BETWEEN THE
CARRIERS PARTIES THERETO (WHETHER AGREED UPON BY SUCH CARRIERS, OR ANY
OF THEM, OR OTHERWISE ESTABLISHED), THE COMMISSION SHALL BY ORDER
PRESCRIBE THE JUST, REASONABLE, AND EQUITABLE DIVISIONS THEREOF TO BE
RECEIVED BY THE SEVERAL CARRIERS,  ...  .  IN SO PRESCRIBING AND
DETERMINING THE DIVISIONS OF JOINT RATES, FARES AND CHARGES, THE
COMMISSION SHALL GIVE DUE CONSIDERATION, AMONG OTHER THINGS, TO THE
EFFICIENCY WITH WHICH THE CARRIERS CONCERNED ARE OPERATED, THE AMOUNT
OF REVENUE REQUIRED TO PAY THEIR RESPECTIVE OPERATING EXPENSES, TAXES,
AND A FAIR RETURN ON THEIR RAILWAY PROPERTY HELD FOR AND USED IN THE
SERVICE OF TRANSPORTATION, AND THE IMPORTANCE TO THE PUBLIC OF THE
TRANSPORTATION SERVICES OF SUCH CARRIERS; AND ALSO WHETHER ANY
PARTICULAR PARTICIPATING CARRIER IS AN ORIGINATING, INTERMEDIATE, OR
DELIVERING LINE, AND ANY OTHER FACT OR CIRCUMSTANCE WHICH WOULD
ORDINARILY, WITHOUT REGARD TO THE MILEAGE HAUL, ENTITLE ONE CARRIER TO
A GREATER OR LESS PROPORTION THAN ANOTHER CARRIER OF THE JOINT RATE,
FARE OR CHARGE."  41 STAT. 486, 49 U.S.C. SEC. 15(6). 

FN5  THE MONTANA WESTERN AND APPELLEE MAINTAIN JOINT RATES
ESTABLISHED BY AGREEMENT FOR MANY COMMODITIES, INCLUDING COAL, LUMBER
AND LIVESTOCK.  IF IT HAD HAPPENED THAT A JOINT RATE HAD BEEN AGREED
UPON FOR GRAIN (OR THAT THE BULK OF MONTANA WESTERN'S REVENUES WERE
DERIVED FROM COMMODITIES THAT NOW MOVE ON JOINT RATES), THE COMMISSION
COULD HAVE DIVERTED ADDITIONAL REVENUE TO THE MONTANA WESTERN WITHOUT
RESORT TO THE POWER GRANTED IN SECTION 15(3). 

FN6  IN THE SUBIACO LITIGATION, A SHORT-LINE CARRIER ASKED THE
COMMISSION TO ESTABLISH A THROUGH ROUTE THAT INCLUDED ITS LINE.  THE
COMMISSION'S REPORT STATED THE QUESTIONS PRESENTED AS (1) THE
APPLICABILITY OF THE SHORT-HAUL LIMITATION OF SECTION 15(4), AND (2)
WHETHER IT WAS IN THE PUBLIC INTEREST TO ESTABLISH A NEW THROUGH ROUTE
SO THAT THE FINANCIALLY WEAK CARRIER WOULD BENEFIT FROM NEW BUSINESS
AND RESULTING INCREASED REVENUES.  THE COMMISSION ORDERED ESTABLISHMENT
OF THE NEW ROUTE OVER THE DISSENT OF ONE COMMISSIONER ON THE SECOND
QUESTION.  FT. SMITH, SUBIACO & R.I.R. CO. V. ALABAMA & VICKSBURG R.
CO., 107 I.C.C. 523 (1926).  REACHING ONLY THE SHORT-HAUL QUESTION,
THIS COURT HELD THE ORDER INVALID IN UNITED STATES V. MISSOURI PACIFIC
R. CO., 278 U.S. 269 (1929).  EFFORTS TO AMEND SECTION 15(4) BEGAN WITH
THE FINAL DECISION IN THE SUBIACO LITIGATION.  SEE THOMPSON V. UNITED
STATES, 343 U.S. 549 (DECIDED THIS DAY). 

FN7  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON H.R. 5364, 74TH CONG., 2D SESS. 70
71 (1936); HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON S. 1261, 75TH CONG., 2D AND 3D SESS.
104-106, 159-160 (1937, 1938); HEARINGS BEFORE A SUBCOMMITTEE OF THE
SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 1085, 76TH CONG., 1ST
SESS. 88-89 (1939); HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 3400, 76TH CONG.,
1ST SESS. 232-234 (1939).  SEE ALSO S. 1261, 75TH CONG., 1ST SESS.; S.
REP. NO. 404, 75TH CONG., 1ST SESS. 3 (1937).    FN8  IT IS THE DUTY OF
EVERY CARRIER TO ESTABLISH REASONABLE THROUGH ROUTES BUT THERE IS NO
CORRESPONDING DUTY TO ESTABLISH JOINT RATES WITH OTHER CARRIERS.  49
U.S.C. SEC. 1(4).  JOINT RATES MAY BE ESTABLISHED EITHER BY AGREEMENT
OF THE CARRIERS, 49 U.S.C. SEC. 6(4), OR BY COMMISSION ORDER, 49 U.S.C.
SEC. 15(3).  SECTION 6(1) OF THE INTERSTATE COMMERCE ACT REQUIRES THAT
A CARRIER FILE AND POST ALL RATES, FARES, AND CHARGES BETWEEN DIFFERENT
POINTS ON ITS OWN ROUTES AND BETWEEN POINTS ON THE ROUTE OF ANY OTHER
CARRIER "WHEN A THROUGH ROUTE AND JOINT RATE HAVE BEEN ESTABLISHED.  IF
NO JOINT RATE OVER THE THROUGH ROUTE HAS BEEN ESTABLISHED, THE SEVERAL
CARRIERS IN SUCH THROUGH ROUTE SHALL FILE AND POST THE SEPARATELY
ESTABLISHED RATES, FARES, AND CHARGES APPLIED TO THE THROUGH
TRANSPORTATION."  49 U.S.C. SEC. 6(1).  SEE BROWN LUMBER CO. V.
LOUISVILLE & N.R. CO., 199 U.S. 393, 395 (1937). 

FN9  SEE ST. LOUIS SOUTHWESTERN R. CO. V. UNITED STATES, 245 U.S.
136, 139 (1917), QUOTED IN THOMPSON V. UNITED STATES, 343 U.S. 549
(DECIDED THIS DAY).  SEE ALSO VIRGINIAN R. CO. V. UNITED STATES, 272
U.S. 658, 666 (1926). 

FN10  SEE LOUISVILLE & N.R. CO. V. SLOSS-SHEFFIELD STEEL & IRON CO.,
269 U.S. 217, 234 (1925). 

FN11  REGULATION IN "THE FORM OF COMPELLING THE SUBSTITUTION OF A
JOINT RATE FOR A THROUGH RATE MADE BY A COMBINATION OF LOCAL RATES" WAS
APPROVED IN ST. LOUIS SOUTHWESTERN R. CO. V. UNITED STATES, NOTE 9,
SUPRA, AT 142. 

FN12  S. REP. NO. 404, 75TH CONG., 1ST SESS. 3 (1937). 

FN13  HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON S. 1261, 75TH CONG., 2D AND 3D SESS.
106 (1937, 1938); HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 3400, 76TH CONG., 1ST SESS.
234 (1939). 

FN14  THE COMMISSION HAS RECOGNIZED IN PRIOR CASES THAT IN
ESTABLISHING JOINT RATES OVER EXISTING THROUGH ROUTES, THE PROVISIONS
OF SECTION 15(4) RESPECTING ESTABLISHMENT OF THROUGH ROUTES ARE NOT
APPLICABLE.  SEE BEAMAN ELEVATOR CO. V. CHICAGO & N.W.R. CO., 148
I.C.C. 444, 451 (1928), 155 I.C.C. 313 (1929). 

FN15  54 STAT. 899 (1940). 

FN16  IN PASSING UPON APPLICATIONS TO ABANDON BRANCH LINES UNDER 49
U.S.C. SEC. 1(18)-(20), THE COMMISSION HAS REQUIRED A SHOWING OF THE
"FEEDER VALUE" OF THE BRANCH BY CREDITING TO THAT BRANCH THE GROSS
SYSTEM REVENUES LESS THE ESTIMATED COST OF MOVING THE TRAFFIC OVER THE
REST OF THE SYSTEM.  E.G., CHICAGO, R.I.&P.R. CO. TRUSTEES ABANDONMENT,
254 I.C.C. 187, 190 (1943).  SEE CHERINGTON, THE REGULATION OF RAILROAD
ABANDONMENTS (1948), 159-166. 

FN17  COMPARE UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474
(1951), WITH O'LEARY V. BROWN-PACIFIC-MAXON, INC., 340 U.S. 504, 508
(1951). 

MR. JUSTICE BLACK, MR. JUSTICE JACKSON AND MR. JUSTICE BURTON CONCUR
IN THE RESULT. 
..END :




YOUNGSTOWN SHEET & TUBE CO. V. SAWYER 343 U.S. 579 


NO. 744.  ARGUED MAY 12-13, 1952 - DECIDED JUNE 2, 1952 - 103 F. SUPP.
569, AFFIRMED. 


TO AVERT A NATION-WIDE STRIKE OF STEEL WORKERS IN APRIL 1952, WHICH HE
BELIEVED WOULD JEOPARDIZE NATIONAL DEFENSE, THE PRESIDENT ISSUED AN
EXECUTIVE ORDER DIRECTING THE SECRETARY OF COMMERCE TO SEIZE AND
OPERATE MOST OF THE STEEL MILLS.  THE ORDER WAS NOT BASED UPON ANY
SPECIFIC STATUTORY AUTHORITY BUT WAS BASED GENERALLY UPON ALL POWERS
VESTED IN THE PRESIDENT BY THE CONSTITUTION AND LAWS OF THE UNITED
STATES AND AS PRESIDENT OF THE UNITED STATES AND COMMANDER IN CHIEF OF
THE ARMED FORCES.  THE SECRETARY ISSUED AN ORDER SEIZING THE STEEL
MILLS AND DIRECTING THEIR PRESIDENTS TO OPERATE THEM AS OPERATING
MANAGERS FOR THE UNITED STATES IN ACCORDANCE WITH HIS REGULATIONS AND
DIRECTIONS.  THE PRESIDENT PROMPTLY REPORTED THESE EVENTS TO CONGRESS;
BUT CONGRESS TOOK NO ACTION.  IT HAD PROVIDED OTHER METHODS OF DEALING
WITH SUCH SITUATIONS AND HAD REFUSED TO AUTHORIZE GOVERNMENTAL SEIZURES
OF PROPERTY TO SETTLE LABOR DISPUTES.  THE STEEL COMPANIES SUED THE
SECRETARY IN A FEDERAL DISTRICT COURT, PRAYING FOR A DECLARATORY
JUDGMENT AND INJUNCTIVE RELIEF.  THE DISTRICT COURT ISSUED A
PRELIMINARY INJUNCTION, WHICH THE COURT OF APPEALS STAYED.  HELD: 

1.  ALTHOUGH THIS CASE HAS PROCEEDED NO FURTHER THAN THE PRELIMINARY
INJUNCTION STAGE, IT IS RIPE FOR DETERMINATION OF THE CONSTITUTIONAL
VALIDITY OF THE EXECUTIVE ORDER ON THE RECORD PRESENTED.  PP. 584-585. 

(A)  UNDER PRIOR DECISIONS OF THIS COURT, THERE IS DOUBT AS TO THE
RIGHT TO RECOVER IN THE COURT OF CLAIMS ON ACCOUNT OF PROPERTIES
UNLAWFULLY TAKEN BY GOVERNMENT OFFICIALS FOR PUBLIC USE.  P. 585. 

(B)  SEIZURE AND GOVERNMENTAL OPERATION OF THESE GOING BUSINESSES
WERE BOUND TO RESULT IN MANY PRESENT AND FUTURE DAMAGES OF SUCH NATURE
AS TO BE DIFFICULT, IF NOT INCAPABLE, OF MEASUREMENT.  P. 585. 

2.  THE EXECUTIVE ORDER WAS NOT AUTHORIZED BY THE CONSTITUTION OR
LAWS OF THE UNITED STATES; AND IT CANNOT STAND.  PP. 585-589. 

(A)  THERE IS NO STATUTE WHICH EXPRESSLY OR IMPLIEDLY AUTHORIZES THE
PRESIDENT TO TAKE POSSESSION OF THIS PROPERTY AS HE DID HERE.  PP. 585
586. 

(B)  IN ITS CONSIDERATION OF THE TAFT-HARTLEY ACT IN 1947, CONGRESS
REFUSED TO AUTHORIZE GOVERNMENTAL SEIZURES OF PROPERTY AS A METHOD OF
PREVENTING WORK STOPPAGES AND SETTLING LABOR DISPUTES.  P. 586. 

(C)  AUTHORITY OF THE PRESIDENT TO ISSUE SUCH AN ORDER IN THE
CIRCUMSTANCES OF THIS CASE CANNOT BE IMPLIED FROM THE AGGREGATE OF HIS
POWERS UNDER ARTICLE II OF THE CONSTITUTION.  PP. 587-589. 

(D)  THE ORDER CANNOT PROPERLY BE SUSTAINED AS AN EXERCISE OF THE
PRESIDENT'S MILITARY POWER AS COMMANDER IN CHIEF OF THE ARMED FORCES. 
P. 587. 

(E)  NOR CAN THE ORDER BE SUSTAINED BECAUSE OF THE SEVERAL PROVISIONS
OF ARTICLE II WHICH GRANT EXECUTIVE POWER TO THE PRESIDENT.  PP. 587
589. 

(F)  THE POWER HERE SOUGHT TO BE EXERCISED IS THE LAWMAKING POWER,
WHICH THE CONSTITUTION VESTS IN THE CONGRESS ALONE, IN BOTH GOOD AND
BAD TIMES.  PP. 587-589. 

(G)  EVEN IF IT BE TRUE THAT OTHER PRESIDENTS HAVE TAKEN POSSESSION
OF PRIVATE BUSINESS ENTERPRISES WITHOUT CONGRESSIONAL AUTHORITY IN
ORDER TO SETTLE LABOR DISPUTES, CONGRESS HAS NOT THEREBY LOST ITS
EXCLUSIVE CONSTITUTIONAL AUTHORITY TO MAKE THE LAWS NECESSARY AND
PROPER TO CARRY OUT ALL POWERS VESTED BY THE CONSTITUTION "IN THE
GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT OR OFFICER
THEREOF."  PP. 588-589. 

FOR CONCURRING OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P. 593. 

FOR CONCURRING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 629. 

FOR CONCURRING OPINION OF MR. JUSTICE JACKSON, SEE POST, P. 634. 

FOR CONCURRING OPINION OF MR. JUSTICE BURTON, SEE POST, P. 655. 

FOR OPINION OF MR. JUSTICE CLARK, CONCURRING IN THE JUDGMENT OF THE
COURT, SEE POST, P. 660. 

FOR DISSENTING OPINION OF MR. CHIEF JUSTICE VINSON, JOINED BY MR.
JUSTICE REED AND MR. JUSTICE MINTON, SEE POST, P. 667. 

YOUNGSTOWN SHEET & TUBE CO. ET AL. V. SAWYER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 745, SAWYER, SECRETARY OF COMMERCE, V. YOUNGSTOWN
SHEET & TUBE CO. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

THE DISTRICT COURT ISSUED A PRELIMINARY INJUNCTION RESTRAINING THE
SECRETARY OF COMMERCE FROM CARRYING OUT THE TERMS OF EXECUTIVE ORDER
NO. 10340, 16 FED. REG. 3503.  103 F. SUPP. 569.  THE COURT OF APPEALS
ISSUED A STAY.  90 U.S. APP. D.C. - , 197 F.2D 582.  THIS COURT GRANTED
CERTIORARI.  343 U.S. 937.  THE JUDGMENT OF THE DISTRICT COURT IS
AFFIRMED, P. 589. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO DECIDE WHETHER THE PRESIDENT WAS ACTING WITHIN HIS
CONSTITUTIONAL POWER WHEN HE ISSUED AN ORDER DIRECTING THE SECRETARY OF
COMMERCE TO TAKE POSSESSION OF AND OPERATE MOST OF THE NATION'S STEEL
MILLS.  THE MILL OWNERS ARGUE THAT THE PRESIDENT'S ORDER AMOUNTS TO
LAWMAKING, A LEGISLATIVE FUNCTION WHICH THE CONSTITUTION HAS EXPRESSLY
CONFIDED TO THE CONGRESS AND NOT TO THE PRESIDENT.  THE GOVERNMENT'S
POSITION IS THAT THE ORDER WAS MADE ON FINDINGS OF THE PRESIDENT THAT
HIS ACTION WAS NECESSARY TO AVERT A NATIONAL CATASTROPHE WHICH WOULD
INEVITABLY RESULT FROM A STOPPAGE OF STEEL PRODUCTION, AND THAT IN
MEETING THIS GRAVE EMERGENCY THE PRESIDENT WAS ACTING WITHIN THE
AGGREGATE OF HIS CONSTITUTIONAL POWERS AS THE NATION'S CHIEF EXECUTIVE
AND THE COMMANDER IN CHIEF OF THE ARMED FORCES OF THE UNITED STATES. 
THE ISSUE EMERGES HERE FROM THE FOLLOWING SERIES OF EVENTS: 

IN THE LATTER PART OF 1951, A DISPUTE AROSE BETWEEN THE STEEL
COMPANIES AND THEIR EMPLOYEES OVER TERMS AND CONDITIONS THAT SHOULD BE
INCLUDED IN NEW COLLECTIVE BARGAINING AGREEMENTS.  LONG-CONTINUED
CONFERENCES FAILED TO RESOLVE THE DISPUTE.  ON DECEMBER 18, 1951, THE
EMPLOYEES' REPRESENTATIVE, UNITED STEELWORKERS OF AMERICA, C.I.O., GAVE
NOTICE OF AN INTENTION TO STRIKE WHEN THE EXISTING BARGAINING
AGREEMENTS EXPIRED ON DECEMBER 31.  THE FEDERAL MEDIATION AND
CONCILIATION SERVICE THEN INTERVENED IN AN EFFORT TO GET LABOR AND
MANAGEMENT TO AGREE.  THIS FAILING, THE PRESIDENT ON DECEMBER 22, 1951,
REFERRED THE DISPUTE TO THE FEDERAL WAGE STABILIZATION BOARD (FN1) TO
INVESTIGATE AND MAKE RECOMMENDATIONS FOR FAIR AND EQUITABLE TERMS OF
SETTLEMENT.  THIS BOARD'S REPORT RESULTED IN NO SETTLEMENT.  ON APRIL
4, 1952, THE UNION GAVE NOTICE OF A NATION-WIDE STRIKE CALLED TO BEGIN
AT 12:01 A.M. APRIL 9.  THE INDISPENSABILITY OF STEEL AS A COMPONENT OF
SUBSTANTIALLY ALL WEAPONS AND OTHER WAR MATERIALS LED THE PRESIDENT TO
BELIEVE THAT THE PROPOSED WORK STOPPAGE WOULD IMMEDIATELY JEOPARDIZE
OUR NATIONAL DEFENSE AND THAT GOVERNMENTAL SEIZURE OF THE STEEL MILLS
WAS NECESSARY IN ORDER TO ASSURE THE CONTINUED AVAILABILITY OF STEEL. 
RECITING THESE CONSIDERATIONS FOR HIS ACTION, THE PRESIDENT, A FEW
HOURS BEFORE THE STRIKE WAS TO BEGIN, ISSUED EXECUTIVE ORDER 10340, A
COPY OF WHICH IS ATTACHED AS AN APPENDIX, POST, P. 589.  THE ORDER
DIRECTED THE SECRETARY OF COMMERCE TO TAKE POSSESSION OF MOST OF THE
STEEL MILLS AND KEEP THEM RUNNING.  THE SECRETARY IMMEDIATELY ISSUED
HIS OWN POSSESSORY ORDERS, CALLING UPON THE PRESIDENTS OF THE VARIOUS
SEIZED COMPANIES TO SERVE AS OPERATING MANAGERS FOR THE UNITED STATES. 
THEY WERE DIRECTED TO CARRY ON THEIR ACTIVITIES IN ACCORDANCE WITH
REGULATIONS AND DIRECTIONS OF THE SECRETARY.  THE NEXT MORNING THE
PRESIDENT SENT A MESSAGE TO CONGRESS REPORTING HIS ACTION.  CONG. REC.,
APRIL 9, 1952, P. 3962.  TWELVE DAYS LATER HE SENT A SECOND MESSAGE. 
CONG. REC., APRIL 21, 1952, P. 4192.  CONGRESS HAS TAKEN NO ACTION. 

OBEYING THE SECRETARY'S ORDERS UNDER PROTEST, THE COMPANIES BROUGHT
PROCEEDINGS AGAINST HIM IN THE DISTRICT COURT.  THEIR COMPLAINTS
CHARGED THAT THE SEIZURE WAS NOT AUTHORIZED BY AN ACT OF CONGRESS OR BY
ANY CONSTITUTIONAL PROVISIONS.  THE DISTRICT COURT WAS ASKED TO DECLARE
THE ORDERS OF THE PRESIDENT AND THE SECRETARY INVALID AND TO ISSUE
PRELIMINARY AND PERMANENT INJUNCTIONS RESTRAINING THEIR ENFORCEMENT. 
OPPOSING THE MOTION FOR PRELIMINARY INJUNCTION, THE UNITED STATES
ASSERTED THAT A STRIKE DISRUPTING STEEL PRODUCTION FOR EVEN A BRIEF
PERIOD WOULD SO ENDANGER THE WELL-BEING AND SAFETY OF THE NATION THAT
THE PRESIDENT HAD "INHERENT POWER" TO DO WHAT HE HAD DONE - POWER
"SUPPORTED BY THE CONSTITUTION, BY HISTORICAL PRECEDENT, AND BY COURT
DECISIONS."  THE GOVERNMENT ALSO CONTENDED THAT IN ANY EVENT NO
PRELIMINARY INJUNCTION SHOULD BE ISSUED BECAUSE THE COMPANIES HAD MADE
NO SHOWING THAT THEIR AVAILABLE LEGAL REMEDIES WERE INADEQUATE OR THAT
THEIR INJURIES FROM SEIZURE WOULD BE IRREPARABLE.  HOLDING AGAINST THE
GOVERNMENT ON ALL POINTS, THE DISTRICT COURT ON APRIL 30 ISSUED A
PRELIMINARY INJUNCTION RESTRAINING THE SECRETARY FROM "CONTINUING THE
SEIZURE AND POSSESSION OF THE PLANTS  ...  AND FROM ACTING UNDER THE
PURPORTED AUTHORITY OF EXECUTIVE ORDER NO. 10340."  103 F. SUPP. 569. 
ON THE SAME DAY THE COURT OF APPEALS STAYED THE DISTRICT COURT'S
INJUNCTION.  90 U.S. APP. D.C. - , 197 F.2D 582.  DEEMING IT BEST THAT
THE ISSUES RAISED BE PROMPTLY DECIDED BY THIS COURT, WE GRANTED
CERTIORARI ON MAY 3 AND SET THE CAUSE FOR ARGUMENT ON MAY 12.  343 U.S.
937. 

TWO CRUCIAL ISSUES HAVE DEVELOPED:  FIRST.  SHOULD FINAL
DETERMINATION OF THE CONSTITUTIONAL VALIDITY OF THE PRESIDENT'S ORDER
BE MADE IN THIS CASE WHICH HAS PROCEEDED NO FURTHER THAN THE
PRELIMINARY INJUNCTION STAGE?  SECOND.  IF SO, IS THE SEIZURE ORDER
WITHIN THE CONSTITUTIONAL POWER OF THE PRESIDENT? 

                                       I. 

IT IS URGED THAT THERE WERE NON-CONSTITUTIONAL GROUNDS UPON WHICH THE
DISTRICT COURT COULD HAVE DENIED THE PRELIMINARY INJUNCTION AND THUS
HAVE FOLLOWED THE CUSTOMARY JUDICIAL PRACTICE OF DECLINING TO REACH AND
DECIDE CONSTITUTIONAL QUESTIONS UNTIL COMPELLED TO DO SO.  ON THIS
BASIS IT IS ARGUED THAT EQUITY'S EXTRAORDINARY INJUNCTIVE RELIEF SHOULD
HAVE BEEN DENIED BECAUSE (A) SEIZURE OF THE COMPANIES' PROPERTIES DID
NOT INFLICT IRREPARABLE DAMAGES, AND (B) THERE WERE AVAILABLE LEGAL
REMEDIES ADEQUATE TO AFFORD COMPENSATION FOR ANY POSSIBLE DAMAGES WHICH
THEY MIGHT SUFFER.  WHILE SEPARATELY ARGUED BY THE GOVERNMENT, THESE
TWO CONTENTIONS ARE HERE CLOSELY RELATED, IF NOT IDENTICAL.  ARGUMENTS
AS TO BOTH REST IN LARGE PART ON THE GOVERNMENT'S CLAIM THAT SHOULD THE
SEIZURE ULTIMATELY BE HELD UNLAWFUL, THE COMPANIES COULD RECOVER FULL
COMPENSATION IN THE COURT OF CLAIMS FOR THE UNLAWFUL TAKING.  PRIOR
CASES IN THIS COURT HAVE CAST DOUBT ON THE RIGHT TO RECOVER IN THE
COURT OF CLAIMS ON ACCOUNT OF PROPERTIES UNLAWFULLY TAKEN BY GOVERNMENT
OFFICIALS FOR PUBLIC USE AS THESE PROPERTIES WERE ALLEGED TO HAVE
BEEN.  SEE E.G., HOOE V. UNITED STATES, 218 U.S. 322, 335-336; UNITED
STATES V. NORTH AMERICAN CO., 253 U.S. 330, 333.  BUT SEE LARSON V.
DOMESTIC & FOREIGN CORP., 337 U.S. 682, 701-702.  MOREOVER, SEIZURE AND
GOVERNMENTAL OPERATION OF THESE GOING BUSINESSES WERE BOUND TO RESULT
IN MANY PRESENT AND FUTURE DAMAGES OF SUCH NATURE AS TO BE DIFFICULT,
IF NOT INCAPABLE, OF MEASUREMENT.  VIEWING THE CASE THIS WAY, AND IN
THE LIGHT OF THE FACTS PRESENTED, THE DISTRICT COURT SAW NO REASON FOR
DELAYING DECISION OF THE CONSTITUTIONAL VALIDITY OF THE ORDERS.  WE
AGREE WITH THE DISTRICT COURT AND CAN SEE NO REASON WHY THAT QUESTION
WAS NOT RIPE FOR DETERMINATION ON THE RECORD PRESENTED.  WE SHALL
THEREFORE CONSIDER AND DETERMINE THAT QUESTION NOW. 

                 II. 

THE PRESIDENT'S POWER, IF ANY, TO ISSUE THE ORDER MUST STEM EITHER
FROM AN ACT OF CONGRESS OR FROM THE CONSTITUTION ITSELF.  THERE IS NO
STATUTE THAT EXPRESSLY AUTHORIZES THE PRESIDENT TO TAKE POSSESSION OF
PROPERTY AS HE DID HERE.  NOR IS THERE ANY ACT OF CONGRESS TO WHICH OUR
ATTENTION HAS BEEN DIRECTED FROM WHICH SUCH A POWER CAN FAIRLY BE
IMPLIED.  INDEED, WE DO NOT UNDERSTAND THE GOVERNMENT TO RELY ON
STATUTORY AUTHORIZATION FOR THIS SEIZURE.  THERE ARE TWO STATUTES WHICH
DO AUTHORIZE THE PRESIDENT TO TAKE BOTH PERSONAL AND REAL PROPERTY
UNDER CERTAIN CONDITIONS.  (FN2) HOWEVER, THE GOVERNMENT ADMITS THAT
THESE CONDITIONS WERE NOT MET AND THAT THE PRESIDENT'S ORDER WAS NOT
ROOTED IN EITHER OF THE STATUTES.  THE GOVERNMENT REFERS TO THE SEIZURE
PROVISIONS OF ONE OF THESE STATUTES (SEC. 201(B) OF THE DEFENSE
PRODUCTION ACT) AS "MUCH TOO CUMBERSOME, INVOLVED, AND TIME-CONSUMING
FOR THE CRISIS WHICH WAS AT HAND." 

MOREOVER, THE USE OF THE SEIZURE TECHNIQUE TO SOLVE LABOR DISPUTES IN
ORDER TO PREVENT WORK STOPPAGES WAS NOT ONLY UNAUTHORIZED BY ANY
CONGRESSIONAL ENACTMENT; PRIOR TO THIS CONTROVERSY, CONGRESS HAD
REFUSED TO ADOPT THAT METHOD OF SETTLING LABOR DISPUTES.  WHEN THE TAFT
HARTLEY ACT WAS UNDER CONSIDERATION IN 1947, CONGRESS REJECTED AN
AMENDMENT WHICH WOULD HAVE AUTHORIZED SUCH GOVERNMENTAL SEIZURES IN
CASES OF EMERGENCY.  (FN3)  APPARENTLY IT WAS THOUGHT THAT THE
TECHNIQUE OF SEIZURE, LIKE THAT OF COMPULSORY ARBITRATION, WOULD
INTERFERE WITH THE PROCESS OF COLLECTIVE BARGAINING.  (FN4)
CONSEQUENTLY, THE PLAN CONGRESS ADOPTED IN THAT ACT DID NOT PROVIDE FOR
SEIZURE UNDER ANY CIRCUMSTANCES.  INSTEAD, THE PLAN SOUGHT TO BRING
ABOUT SETTLEMENTS BY USE OF THE CUSTOMARY DEVICES OF MEDIATION,
CONCILIATION, INVESTIGATION BY BOARDS OF INQUIRY, AND PUBLIC REPORTS. 
IN SOME INSTANCES TEMPORARY INJUNCTIONS WERE AUTHORIZED TO PROVIDE
COOLING-OFF PERIODS.  ALL THIS FAILING, UNIONS WERE LEFT FREE TO STRIKE
AFTER A SECRET VOTE BY EMPLOYEES AS TO WHETHER THEY WISHED TO ACCEPT
THEIR EMPLOYERS' FINAL SETTLEMENT OFFER.  (FN5) 

IT IS CLEAR THAT IF THE PRESIDENT HAD AUTHORITY TO ISSUE THE ORDER HE
DID, IT MUST BE FOUND IN SOME PROVISION OF THE CONSTITUTION.  AND IT IS
NOT CLAIMED THAT EXPRESS CONSTITUTIONAL LANGUAGE GRANTS THIS POWER TO
THE PRESIDENT.  THE CONTENTION IS THAT PRESIDENTIAL POWER SHOULD BE
IMPLIED FROM THE AGGREGATE OF HIS POWERS UNDER THE CONSTITUTION. 
PARTICULAR RELIANCE IS PLACED ON PROVISIONS IN ARTICLE II WHICH SAY
THAT "THE EXECUTIVE POWER SHALL BE VESTED IN A PRESIDENT  ...  "; THAT
"HE SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED"; AND THAT HE
"SHALL BE COMMANDER IN CHIEF OF THE ARMY AND NAVY OF THE UNITED
STATES." 

THE ORDER CANNOT PROPERLY BE SUSTAINED AS AN EXERCISE OF THE
PRESIDENT'S MILITARY POWER AS COMMANDER IN CHIEF OF THE ARMED FORCES. 
THE GOVERNMENT ATTEMPTS TO DO SO BY CITING A NUMBER OF CASES UPHOLDING
BROAD POWERS IN MILITARY COMMANDERS ENGAGED IN DAY-TO-DAY FIGHTING IN A
THEATER OF WAR.  SUCH CASES NEED NOT CONCERN US HERE.  EVEN THOUGH
"THEATER OF WAR" BE AN EXPANDING CONCEPT, WE CANNOT WITH FAITHFULNESS
TO OUR CONSTITUTIONAL SYSTEM HOLD THAT THE COMMANDER IN CHIEF OF THE
ARMED FORCES HAS THE ULTIMATE POWER AS SUCH TO TAKE POSSESSION OF
PRIVATE PROPERTY IN ORDER TO KEEP LABOR DISPUTES FROM STOPPING
PRODUCTION.  THIS IS A JOB FOR THE NATION'S LAWMAKERS, NOT FOR ITS
MILITARY AUTHORITIES. 

NOR CAN THE SEIZURE ORDER BE SUSTAINED BECAUSE OF THE SEVERAL
CONSTITUTIONAL PROVISIONS THAT GRANT EXECUTIVE POWER TO THE PRESIDENT. 
IN THE FRAMEWORK OF OUR CONSTITUTION, THE PRESIDENT'S POWER TO SEE THAT
THE LAWS ARE FAITHFULLY EXECUTED REFUTES THE IDEA THAT HE IS TO BE A
LAWMAKER.  THE CONSTITUTION LIMITS HIS FUNCTIONS IN THE LAWMAKING
PROCESS TO THE RECOMMENDING OF LAWS HE THINKS WISE AND THE VETOING OF
LAWS HE THINKS BAD.  AND THE CONSTITUTION IS NEITHER SILENT NOR
EQUIVOCAL ABOUT WHO SHALL MAKE LAWS WHICH THE PRESIDENT IS TO EXECUTE. 
THE FIRST SECTION OF THE FIRST ARTICLE SAYS THAT "ALL LEGISLATIVE
POWERS HEREIN GRANTED SHALL BE VESTED IN A CONGRESS OF THE UNITED
STATES  ...  ."  AFTER GRANTING MANY POWERS TO THE CONGRESS, ARTICLE I
GOES ON TO PROVIDE THAT CONGRESS MAY "MAKE ALL LAWS WHICH SHALL BE
NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS,
AND ALL OTHER POWERS VESTED BY THE CONSTITUTION IN THE GOVERNMENT OF
THE UNITED STATES, OR IN ANY DEPARTMENT OR OFFICER THEREOF." 

THE PRESIDENT'S ORDER DOES NOT DIRECT THAT A CONGRESSIONAL POLICY BE
EXECUTED IN A MANNER PRESCRIBED BY CONGRESS - IT DIRECTS THAT A
PRESIDENTIAL POLICY BE EXECUTED IN A MANNER PRESCRIBED BY THE
PRESIDENT.  THE PREAMBLE OF THE ORDER ITSELF, LIKE THAT OF MANY
STATUTES, SETS OUT REASONS WHY THE PRESIDENT BELIEVES CERTAIN POLICIES
SHOULD BE ADOPTED, PROCLAIMS THESE POLICIES AS RULES OF CONDUCT TO BE
FOLLOWED, AND AGAIN, LIKE A STATUTE, AUTHORIZES A GOVERNMENT OFFICIAL
TO PROMULGATE ADDITIONAL RULES AND REGULATIONS CONSISTENT WITH THE
POLICY PROCLAIMED AND NEEDED TO CARRY THAT POLICY INTO EXECUTION.  THE
POWER OF CONGRESS TO ADOPT SUCH PUBLIC POLICIES AS THOSE PROCLAIMED BY
THE ORDER IS BEYOND QUESTION.  IT CAN AUTHORIZE THE TAKING OF PRIVATE
PROPERTY FOR PUBLIC USE.  IT CAN MAKE LAWS REGULATING THE RELATIONSHIPS
BETWEEN EMPLOYERS AND EMPLOYEES, PRESCRIBING RULES DESIGNED TO SETTLE
LABOR DISPUTES, AND FIXING WAGES AND WORKING CONDITIONS IN CERTAIN
FIELDS OF OUR ECONOMY.  THE CONSTITUTION DOES NOT SUBJECT THIS
LAWMAKING POWER OF CONGRESS TO PRESIDENTIAL OR MILITARY SUPERVISION OR
CONTROL.    IT IS SAID THAT OTHER PRESIDENTS WITHOUT CONGRESSIONAL
AUTHORITY HAVE TAKEN POSSESSION OF PRIVATE BUSINESS ENTERPRISES IN
ORDER TO SETTLE LABOR DISPUTES.  BUT EVEN IF THIS BE TRUE, CONGRESS HAS
NOT THEREBY LOST ITS EXCLUSIVE CONSTITUTIONAL AUTHORITY TO MAKE LAWS
NECESSARY AND PROPER TO CARRY OUT THE POWERS VESTED BY THE CONSTITUTION
"IN THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT OR OFFICER
THEREOF." 

THE FOUNDERS OF THIS NATION ENTRUSTED THE LAWMAKING POWER TO THE
CONGRESS ALONE IN BOTH GOOD AND BAD TIMES.  IT WOULD DO NO GOOD TO
RECALL THE HISTORICAL EVENTS, THE FEARS OF POWER AND THE HOPES FOR
FREEDOM THAT LAY BEHIND THEIR CHOICE.  SUCH A REVIEW WOULD BUT CONFIRM
OUR HOLDING THAT THIS SEIZURE ORDER CANNOT STAND. 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

FN1  THIS BOARD WAS ESTABLISHED UNDER EXECUTIVE ORDER 10233, 16 FED.
REG. 3503. 

FN2  THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 604, 625-627, 50
U.S.C. APP. (SUPP. IV) SEC. 468; THE DEFENSE PRODUCTION ACT OF 1950,
TIT. II, 64 STAT. 798, AS AMENDED, 65 STAT. 132. 

FN3  93 CONG. REC. 3637-3645. 

FN4  93 CONG. REC. 3835-3836. 

FN5  LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 136, 152-156, 29
U.S.C. (SUPP. IV) SECS. 141, 171-180. 

MR. JUSTICE FRANKFURTER. 

ALTHOUGH THE CONSIDERATIONS RELEVANT TO THE LEGAL ENFORCEMENT OF THE
PRINCIPLE OF SEPARATION OF POWERS SEEM TO ME MORE COMPLICATED AND
FLEXIBLE THAN MAY APPEAR FROM WHAT MR. JUSTICE BLACK HAS WRITTEN, I
JOIN HIS OPINION BECAUSE I THOROUGHLY AGREE WITH THE APPLICATION OF THE
PRINCIPLE TO THE CIRCUMSTANCES OF THIS CASE.  EVEN THOUGH SUCH
DIFFERENCES IN ATTITUDE TOWARD THIS PRINCIPLE MAY BE MERELY DIFFERENCES
IN EMPHASIS AND NUANCE, THEY CAN HARDLY BE REFLECTED BY A SINGLE
OPINION FOR THE COURT.  INDIVIDUAL EXPRESSION OF VIEWS IN REACHING A
COMMON RESULT IS THEREFORE IMPORTANT. 

                        APPENDIX TO OPINION OF THE COURT. 

      EXECUTIVE ORDER 

DIRECTING THE SECRETARY OF COMMERCE TO TAKE POSSESSION OF AND OPERATE
THE PLANTS AND FACILITIES OF CERTAIN STEEL COMPANIES: 

WHEREAS ON DECEMBER 16, 1950, I PROCLAIMED THE EXISTENCE OF A
NATIONAL EMERGENCY WHICH REQUIRES THAT THE MILITARY, NAVAL, AIR, AND
CIVILIAN DEFENSES OF THIS COUNTRY BE STRENGTHENED AS SPEEDILY AS
POSSIBLE TO THE END THAT WE MAY BE ABLE TO REPEL ANY AND ALL THREATS
AGAINST OUR NATIONAL SECURITY AND TO FULFILL OUR RESPONSIBILITIES IN
THE EFFORTS BEING MADE THROUGHOUT THE UNITED NATIONS AND OTHERWISE TO
BRING ABOUT A LASTING PEACE; AND: 

WHEREAS AMERICAN FIGHTING MEN AND FIGHTING MEN OF OTHER NATIONS OF
THE UNITED NATIONS ARE NOW ENGAGED IN DEADLY COMBAT WITH THE FORCES OF
AGGRESSION IN KOREA, AND FORCES OF THE UNITED STATES ARE STATIONED
ELSEWHERE OVERSEAS FOR THE PURPOSE OF PARTICIPATING IN THE DEFENSE OF
THE ATLANTIC COMMUNITY AGAINST AGGRESSION; AND: 

WHEREAS THE WEAPONS AND OTHER MATERIALS NEEDED BY OUR ARMED FORCES
AND BY THOSE JOINED WITH US IN THE DEFENSE OF THE FREE WORLD ARE
PRODUCED TO A GREAT EXTENT IN THIS COUNTRY, AND STEEL IS AN
INDISPENSABLE COMPONENT OF SUBSTANTIALLY ALL OF SUCH WEAPONS AND
MATERIALS; AND: 

WHEREAS STEEL IS LIKEWISE INDISPENSABLE TO THE CARRYING OUT OF
PROGRAMS OF THE ATOMIC ENERGY COMMISSION OF VITAL IMPORTANCE TO OUR
DEFENSE EFFORTS; AND: 

WHEREAS A CONTINUING AND UNINTERRUPTED SUPPLY OF STEEL IS ALSO
INDISPENSABLE TO THE MAINTENANCE OF THE ECONOMY OF THE UNITED STATES,
UPON WHICH OUR MILITARY STRENGTH DEPENDS; AND: 

WHEREAS A CONTROVERSY HAS ARISEN BETWEEN CERTAIN COMPANIES IN THE
UNITED STATES PRODUCING AND FABRICATING STEEL AND THE ELEMENTS THEREOF
AND CERTAIN OF THEIR WORKERS REPRESENTED BY THE UNITED STEEL WORKERS OF
AMERICA, CIO, REGARDING TERMS AND CONDITIONS OF EMPLOYMENT; AND: 

WHEREAS THE CONTROVERSY HAS NOT BEEN SETTLED THROUGH THE PROCESSES OF
COLLECTIVE BARGAINING OR THOUGH THE EFFORTS OF THE GOVERNMENT,
INCLUDING THOSE OF THE WAGE STABILIZATION BOARD, TO WHICH THE
CONTROVERSY WAS REFERRED ON DECEMBER 22, 1951, PURSUANT TO EXECUTIVE
ORDER NO. 10233, AND A STRIKE HAS BEEN CALLED FOR 12:01 A.M., APRIL 9,
1952; AND: 

WHEREAS A WORK STOPPAGE WOULD IMMEDIATELY JEOPARDIZE AND IMPERIL OUR
NATIONAL DEFENSE AND THE DEFENSE OF THOSE JOINED WITH US IN RESISTING
AGGRESSION, AND WOULD ADD TO THE CONTINUING DANGER OF OUR SOLDIERS,
SAILORS, AND AIRMEN ENGAGED IN COMBAT IN THE FIELD; AND: 

WHEREAS IN ORDER TO ASSURE THE CONTINUED AVAILABILITY OF STEEL AND
STEEL PRODUCTS DURING THE EXISTING EMERGENCY, IT IS NECESSARY THAT THE
UNITED STATES TAKE POSSESSION OF AND OPERATE THE PLANTS, FACILITIES,
AND OTHER PROPERTY OF THE SAID COMPANIES AS HEREINAFTER PROVIDED: 

NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES, AND AS PRESIDENT OF THE
UNITED STATES AND COMMANDER IN CHIEF OF THE ARMED FORCES OF THE UNITED
STATES, IT IS HEREBY ORDERED AS FOLLOWS: 

1.  THE SECRETARY OF COMMERCE IS HEREBY AUTHORIZED AND DIRECTED TO
TAKE POSSESSION OF ALL OR SUCH OF THE PLANTS, FACILITIES, AND OTHER
PROPERTY OF THE COMPANIES NAMED IN THE LIST ATTACHED HERETO, OR ANY
PART THEREOF, AS HE MAY DEEM NECESSARY IN THE INTERESTS OF NATIONAL
DEFENSE; AND TO OPERATE OR TO ARRANGE FOR THE OPERATION THEREOF AND TO
DO ALL THINGS NECESSARY FOR, OR INCIDENTAL TO, SUCH OPERATION. 

2.  IN CARRYING OUT THIS ORDER THE SECRETARY OF COMMERCE MAY ACT
THROUGH OR WITH THE AID OF SUCH PUBLIC OR PRIVATE INSTRUMENTALITIES OR
PERSONS AS HE MAY DESIGNATE; AND ALL FEDERAL AGENCIES SHALL COOPERATE
WITH THE SECRETARY OF COMMERCE TO THE FULLEST EXTENT POSSIBLE IN
CARRYING OUT THE PURPOSES OF THIS ORDER. 

3.  THE SECRETARY OF COMMERCE SHALL DETERMINE AND PRESCRIBE TERMS AND
CONDITIONS OF EMPLOYMENT UNDER WHICH THE PLANTS, FACILITIES, AND OTHER
PROPERTIES POSSESSION OF WHICH IS TAKEN PURSUANT TO THIS ORDER SHALL BE
OPERATED.  THE SECRETARY OF COMMERCE SHALL RECOGNIZE THE RIGHTS OF
WORKERS TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING AND TO ENGAGE IN CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING, ADJUSTMENT OF GRIEVANCES, OR OTHER MUTUAL AID OR
PROTECTION, PROVIDED THAT SUCH ACTIVITIES DO NOT INTERFERE WITH THE
OPERATION OF SUCH PLANTS, FACILITIES, AND OTHER PROPERTIES. 

4.  EXCEPT SO FAR AS THE SECRETARY OF COMMERCE SHALL OTHERWISE
PROVIDE FROM TIME TO TIME, THE MANAGEMENTS OF THE PLANTS, FACILITIES,
AND OTHER PROPERTIES POSSESSION OF WHICH IS TAKEN PURSUANT TO THIS
ORDER SHALL CONTINUE THEIR FUNCTIONS, INCLUDING THE COLLECTION AND
DISBURSEMENT OF FUNDS IN THE USUAL AND ORDINARY COURSE OF BUSINESS IN
THE NAMES OF THEIR RESPECTIVE COMPANIES AND BY MEANS OF ANY
INSTRUMENTALITIES USED BY SUCH COMPANIES. 

5.  EXCEPT SO FAR AS THE SECRETARY OF COMMERCE MAY OTHERWISE DIRECT,
EXISTING RIGHTS AND OBLIGATIONS OF SUCH COMPANIES SHALL REMAIN IN FULL
FORCE AND EFFECT, AND THERE MAY BE MADE, IN DUE COURSE, PAYMENT OF
DIVIDENDS ON STOCK, AND OF PRINCIPAL, INTEREST, SINKING FUNDS, AND ALL
OTHER DISTRIBUTIONS UPON BONDS, DEBENTURES, AND OTHER OBLIGATIONS, AND
EXPENDITURES MAY BE MADE FOR OTHER ORDINARY CORPORATE OR BUSINESS
PURPOSES. 

6.  WHENEVER IN THE JUDGMENT OF THE SECRETARY OF COMMERCE FURTHER
POSSESSION AND OPERATION BY HIM OF ANY PLANT, FACILITY, OR OTHER
PROPERTY IS NO LONGER NECESSARY OR EXPEDIENT IN THE INTEREST OF
NATIONAL DEFENSE, AND THE SECRETARY HAS REASON TO BELIEVE THAT
EFFECTIVE FUTURE OPERATION IS ASSURED, HE SHALL RETURN THE POSSESSION
AND OPERATION OF SUCH PLANT, FACILITY, OR OTHER PROPERTY TO THE COMPANY
IN POSSESSION AND CONTROL THEREOF AT THE TIME POSSESSION WAS TAKEN
UNDER THIS ORDER. 

7.  THE SECRETARY OF COMMERCE IS AUTHORIZED TO PRESCRIBE AND ISSUE
SUCH REGULATIONS AND ORDERS NOT INCONSISTENT HEREWITH AS HE MAY DEEM
NECESSARY OR DESIRABLE FOR CARRYING OUT THE PURPOSES OF THIS ORDER; AND
HE MAY DELEGATE AND AUTHORIZE SUBDELEGATION OF SUCH OF HIS FUNCTIONS
UNDER THIS ORDER AS HE MAY DEEM DESIRABLE. 

HARRY S. TRUMAN. 

THE WHITE HOUSE, APRIL 8, 1952. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

BEFORE THE CARES OF THE WHITE HOUSE WERE HIS OWN, PRESIDENT HARDING
IS REPORTED TO HAVE SAID THAT GOVERNMENT AFTER ALL IS A VERY SIMPLE
THING.  HE MUST HAVE SAID THAT, IF HE SAID IT, AS A FLEETING INHABITANT
OF FAIRYLAND.  THE OPPOSITE IS THE TRUTH.  A CONSTITUTIONAL DEMOCRACY
LIKE OURS IS PERHAPS THE MOST DIFFICULT OF MAN'S SOCIAL ARRANGEMENTS TO
MANAGE SUCCESSFULLY.  OUR SCHEME OF SOCIETY IS MORE DEPENDENT THAN ANY
OTHER FORM OF GOVERNMENT ON KNOWLEDGE AND WISDOM AND SELF-DISCIPLINE
FOR THE ACHIEVEMENT OF ITS AIMS.  FOR OUR DEMOCRACY IMPLIES THE REIGN
OF REASON ON THE MOST EXTENSIVE SCALE.  THE FOUNDERS OF THIS NATION
WERE NOT IMBUED WITH THE MODERN CYNICISM THAT THE ONLY THING THAT
HISTORY TEACHES IS THAT IT TEACHES NOTHING.  THEY ACTED ON THE
CONVICTION THAT THE EXPERIENCE OF MAN SHEDS A GOOD DEAL OF LIGHT ON HIS
NATURE.  IT SHEDS A GOOD DEAL OF LIGHT NOT MERELY ON THE NEED FOR
EFFECTIVE POWER, IF A SOCIETY IS TO BE AT ONCE COHESIVE AND CIVILIZED,
BUT ALSO ON THE NEED FOR LIMITATIONS ON THE POWER OF GOVERNORS OVER THE
GOVERNED. 

TO THAT END THEY RESTED THE STRUCTURE OF OUR CENTRAL GOVERNMENT ON
THE SYSTEM OF CHECKS AND BALANCES.  FOR THEM THE DOCTRINE OF SEPARATION
OF POWERS WAS NOT MERE THEORY; IT WAS A FELT NECESSITY.  NOT SO LONG
AGO IT WAS FASHIONABLE TO FIND OUR SYSTEM OF CHECKS AND BALANCES
OBSTRUCTIVE TO EFFECTIVE GOVERNMENT.  IT WAS EASY TO RIDICULE THAT
SYSTEM AS OUTMODED - TOO EASY.  THE EXPERIENCE THROUGH WHICH THE WORLD
HAS PASSED IN OUR OWN DAY HAS MADE VIVID THE REALIZATION THAT THE
FRAMERS OF OUR CONSTITUTION WERE NOT INEXPERIENCED DOCTRINAIRES.  THESE
LONG-HEADED STATESMEN HAD NO ILLUSION THAT OUR PEOPLE ENJOYED
BIOLOGICAL OR PSYCHOLOGICAL OR SOCIOLOGICAL IMMUNITES FROM THE HAZARDS
OF CONCENTRATED POWER.  IT IS ABSURD TO SEE A DICTATOR IN A
REPRESENTATIVE PRODUCT OF THE STURDY DEMOCRATIC TRADITIONS OF THE
MISSISSIPPI VALLEY.  THE ACCRETION OF DANGEROUS POWER DOES NOT COME IN
A DAY.  IT DOES COME, HOWEVER SLOWLY, FROM THE GENERATIVE FORCE OF
UNCHECKED DISREGARD OF THE RESTRICTIONS THAT FENCE IN EVEN THE MOST
DISINTERESTED ASSERTION OF AUTHORITY. 

THE FRAMERS, HOWEVER, DID NOT MAKE THE JUDICIARY THE OVERSEER OF OUR
GOVERNMENT.  THEY WERE FAMILIAR WITH THE REVISORY FUNCTIONS ENTRUSTED
TO JUDGES IN A FEW OF THE STATES AND REFUSED TO LODGE SUCH POWERS IN
THIS COURT.  JUDICIAL POWER CAN BE EXERCISED ONLY AS TO MATTERS THAT
WERE THE TRADITIONAL CONCERN OF THE COURTS AT WESTMINSTER, AND ONLY IF
THEY ARISE IN WAYS THAT TO THE EXPERT FEEL OF LAWYERS CONSTITUTE
"CASES" OR "CONTROVERSIES."  EVEN AS TO QUESTIONS THAT WERE THE STAPLE
OF JUDICIAL BUSINESS, IT IS NOT FOR THE COURTS TO PASS UPON THEM UNLESS
THEY ARE INDISPENSABLY INVOLVED IN A CONVENTIONAL LITIGATION - AND
THEN, ONLY TO THE EXTENT THAT THEY ARE SO INVOLVED.  RIGOROUS ADHERENCE
TO THE NARROW SCOPE OF THE JUDICIAL FUNCTION IS ESPECIALLY DEMANDED IN
CONTROVERSIES THAT AROUSE APPEALS TO THE CONSTITUTION.  THE ATTITUDE
WITH WHICH THIS COURT MUST APPROACH ITS DUTY WHEN CONFRONTED WITH SUCH
ISSUES IS PRECISELY THE OPPOSITE OF THAT NORMALLY MANIFESTED BY THE
GENERAL PUBLIC.  SO-CALLED CONSTITUTIONAL QUESTIONS SEEM TO EXERCISE A
MESMERIC INFLUENCE OVER THE POPULAR MIND.  THIS EAGERNESS TO SETTLE -
PREFERABLY FOREVER - A SPECIFIC PROBLEM ON THE BASIS OF THE BROADEST
POSSIBLE CONSTITUTIONAL PRONOUNCEMENTS MAY NOT UNFAIRLY BE CALLED ONE
OF OUR MINOR NATIONAL TRAITS.  AN ENGLISH OBSERVER OF OUR SCENE HAS
ACUTELY DESCRIBED IT:  "AT THE FIRST SOUND OF A NEW ARGUMENT OVER THE
UNITED STATES CONSTITUTION AND ITS INTERPRETATION THE HEARTS OF
AMERICANS LEAP WITH A FEARFUL JOY.  THE BLOOD STIRS POWERFULLY IN THEIR
VEINS AND A NEW LUSTRE BRIGHTENS THEIR EYES.  LIKE KING HARRY'S MEN
BEFORE HARFLEUR, THEY STAND LIKE GREYHOUNDS IN THE SLIPS, STRAINING
UPON THE START."  THE ECONOMIST, MAY 10, 1952, P. 370. 

THE PATH OF DUTY FOR THIS COURT, IT BEARS REPETITION, LIES IN THE
OPPOSITE DIRECTION.  DUE REGARD FOR THE IMPLICATIONS OF THE
DISTRIBUTION OF POWERS IN OUR CONSTITUTION AND FOR THE NATURE OF THE
JUDICIAL PROCESS AS THE ULTIMATE AUTHORITY IN INTERPRETING THE
CONSTITUTION, HAS NOT ONLY CONFINED THE COURT WITHIN THE NARROW DOMAIN
OF APPROPRIATE ADJUDICATION.  IT HAS ALSO LED TO "A SERIES OF RULES
UNDER WHICH IT HAS AVOIDED PASSING UPON A LARGE PART OF ALL THE
CONSTITUTIONAL QUESTIONS PRESSED UPON IT FOR DECISION."  BRANDEIS, J.,
IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 341, 346.  A
BASIC RULE IS THE DUTY OF THE COURT NOT TO PASS ON A CONSTITUTIONAL
ISSUE AT ALL, HOWEVER NARROWLY IT MAY BE CONFINED, IF THE CASE MAY, AS
A MATTER OF INTELLECTUAL HONESTY, BE DECIDED WITHOUT EVEN CONSIDERING
DELICATE PROBLEMS OF POWER UNDER THE CONSTITUTION.  IT OUGHT TO BE, BUT
APPARENTLY IS NOT, A MATTER OF COMMON UNDERSTANDING THAT CLASHES
BETWEEN DIFFERENT BRANCHES OF THE GOVERNMENT SHOULD BE AVOIDED IF A
LEGAL GROUND OF LESS EXPLOSIVE POTENTIALITIES IS PROPERLY AVAILABLE. 
CONSTITUTIONAL ADJUDICATIONS ARE APT BY EXPOSING DIFFERENCES TO
EXACERBATE THEM. 

SO HERE OUR FIRST INQUIRY MUST BE NOT INTO THE POWERS OF THE
PRESIDENT, BUT INTO THE POWERS OF A DISTRICT JUDGE TO ISSUE A TEMPORARY
INJUNCTION IN THE CIRCUMSTANCES OF THIS CASE.  FAMILIAR AS THAT REMEDY
IS, IT REMAINS AN EXTRAORDINARY REMEDY.  TO START WITH A CONSIDERATION
OF THE RELATION BETWEEN THE PRESIDENT'S POWERS AND THOSE OF CONGRESS -
A MOST DELICATE MATTER THAT HAS OCCUPIED THE THOUGHTS OF STATESMEN AND
JUDGES SINCE THE NATION WAS FOUNDED AND WILL CONTINUE TO OCCUPY THEIR
THOUGHTS AS LONG AS OUR DEMOCRACY LASTS - IS TO START AT THE WRONG
END.  A PLAINTIFF IS NOT ENTITLED TO AN INJUNCTION IF MONEY DAMAGES
WOULD FAIRLY COMPENSATE HIM FOR ANY WRONG HE MAY HAVE SUFFERED.  THE
SAME CONSIDERATIONS BY WHICH THE STEELWORKERS, IN THEIR BRIEF AMICUS,
DEMONSTRATE, FROM THE SEIZURE HERE IN CONTROVERSY, CONSEQUENCES THAT
CANNOT BE TRANSLATED INTO DOLLARS AND CENTS, PRECLUDE A HOLDING THAT
ONLY COMPENSABLE DAMAGE FOR THE PLAINTIFFS IS INVOLVED.  AGAIN, A COURT
OF EQUITY OUGHT NOT TO ISSUE AN INJUNCTION, EVEN THOUGH A PLAINTIFF
OTHERWISE MAKES OUT A CASE FOR IT, IF THE PLAINTIFF'S RIGHT TO AN
INJUNCTION IS OVERBORNE BY A COMMANDING PUBLIC INTEREST AGAINST IT.
ONE NEED NOT RESORT TO A LARGE EPIGRAMMATIC GENERALIZATION THAT THE
EVILS OF INDUSTRIAL DISLOCATION ARE TO BE PREFERRED TO ALLOWING
ILLEGALITY TO GO UNCHECKED.  TO DENY INQUIRY INTO THE PRESIDENT'S POWER
IN A CASE LIKE THIS, BECAUSE OF THE DAMAGE TO THE PUBLIC INTEREST TO BE
FEARED FROM UPSETTING ITS EXERCISE BY HIM, WOULD IN EFFECT ALWAYS
PRECLUDE INQUIRY INTO CHALLENGED POWER, WHICH PRESUMABLY ONLY AVOWED
GREAT PUBLIC INTEREST BRINGS INTO ACTION.  AND SO, WITH THE UTMOST
UNWILLINGNESS, WITH EVERY DESIRE TO AVOID JUDICIAL INQUIRY INTO THE
POWERS AND DUTIES OF THE OTHER TWO BRANCHES OF THE GOVERNMENT, I CANNOT
ESCAPE CONSIDERATION OF THE LEGALITY OF EXECUTIVE ORDER NO. 10340. 

THE POLE-STAR FOR CONSTITUTIONAL ADJUDICATIONS IS JOHN MARSHALL'S
GREATEST JUDICIAL UTTERANCE THAT "IT IS A CONSTITUTION WE ARE
EXPOUNDING."  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 407.  THAT REQUIRES
BOTH A SPACIOUS VIEW IN APPLYING AN INSTRUMENT OF GOVERNMENT "MADE FOR
AN UNDEFINED AND EXPANDING FUTURE," HURTADO V. CALIFORNIA, 110 U.S.
516, 530, AND AS NARROW A DELIMITATION OF THE CONSTITUTIONAL ISSUES AS
THE CIRCUMSTANCES PERMIT.  NOT THE LEAST CHARACTERISTIC OF GREAT
STATESMANSHIP WHICH THE FRAMERS MANIFESTED WAS THE EXTENT TO WHICH THEY
DID NOT ATTEMPT TO BIND THE FUTURE.  IT IS NO LESS INCUMBENT UPON THIS
COURT TO AVOID PUTTING FETTERS UPON THE FUTURE BY NEEDLESS
PRONOUNCEMENTS TODAY. 

MARSHALL'S ADMONITION THAT "IT IS A CONSTITUTION WE ARE EXPOUNDING"
IS ESPECIALLY RELEVANT WHEN THE COURT IS REQUIRED TO GIVE LEGAL
SANCTIONS TO AN UNDERLYING PRINCIPLE OF THE CONSTITUTION - THAT OF
SEPARATION OF POWERS.  "THE GREAT ORDINANCES OF THE CONSTITUTION DO NOT
ESTABLISH AND DIVIDE FIELDS OF BLACK AND WHITE."  HOLMES, J.,
DISSENTING IN SPRINGER V. PHILIPPINE ISLANDS, 277 U.S. 189, 209. 

THE ISSUE BEFORE US CAN BE MET, AND THEREFORE SHOULD BE, WITHOUT
ATTEMPTING TO DEFINE THE PRESIDENT'S POWERS COMPREHENSIVELY.  I SHALL
NOT ATTEMPT TO DELINEATE WHAT BELONGS TO HIM BY VIRTUE OF HIS OFFICE
BEYOND THE POWER EVEN OF CONGRESS TO CONTRACT; WHAT AUTHORITY BELONGS
TO HIM UNTIL CONGRESS ACTS; WHAT KIND OF PROBLEMS MAY BE DEALT WITH
EITHER BY THE CONGRESS OR BY THE PRESIDENT OR BY BOTH, CF. LA ABRA
SILVER MNG.  CO. V. UNITED STATES, 175 U.S. 423; WHAT POWER MUST BE
EXERCISED BY THE CONGRESS AND CANNOT BE DELEGATED TO THE PRESIDENT.  IT
IS AS UNPROFITABLE TO LUMP TOGETHER IN AN UNDISCRIMINATING HOTCH-POTCH
PAST PRESIDENTIAL ACTIONS CLAIMED TO BE DERIVED FROM OCCUPANCY OF THE
OFFICE, AS IT IS TO CONJURE UP HYPOTHETICAL FUTURE CASES.  THE
JUDICIARY MAY, AS THIS CASE PROVES, HAVE TO INTERVENE IN DETERMINING
WHERE AUTHORITY LIES AS BETWEEN THE DEMOCRATIC FORCES IN OUR SCHEME OF
GOVERNMENT.  BUT IN DOING SO WE SHOULD BE WARY AND HUMBLE.  SUCH IS THE
TEACHING OF THIS COURT'S ROLE IN THE HISTORY OF THE COUNTRY. 

IT IS IN THIS MOOD AND WITH THIS PERSPECTIVE THAT THE ISSUE BEFORE
THE COURT MUST BE APPROACHED.  WE MUST THEREFORE PUT TO ONE SIDE
CONSIDERATION OF WHAT POWERS THE PRESIDENT WOULD HAVE HAD IF THERE HAD
BEEN NO LEGISLATION WHATEVER BEARING ON THE AUTHORITY ASSERTED BY THE
SEIZURE, OR IF THE SEIZURE HAD BEEN ONLY FOR A SHORT, EXPLICITLY
TEMPORARY PERIOD, TO BE TERMINATED AUTOMATICALLY UNLESS CONGRESSIONAL
APPROVAL WERE GIVEN.  THESE AND OTHER QUESTIONS, LIKE OR UNLIKE, ARE
NOT NOW HERE.  I WOULD EXCEED MY AUTHORITY WERE I TO SAY ANYTHING ABOUT
THEM. 

THE QUESTION BEFORE THE COURT COMES IN THIS SETTING.  CONGRESS HAS
FREQUENTLY - AT LEAST 16 TIMES SINCE 1916 - SPECIFICALLY PROVIDED FOR
EXECUTIVE SEIZURE OF PRODUCTION, TRANSPORTATION, COMMUNICATIONS, OR
STORAGE FACILITIES.  IN EVERY CASE IT HAS QUALIFIED THIS GRANT OF POWER
WITH LIMITATIONS AND SAFEGUARDS.  THIS BODY OF ENACTMENTS - SUMMARIZED
IN TABULAR FORM IN APPENDIX I, POST, P. 615 - DEMONSTRATES THAT
CONGRESS DEEMED SEIZURE SO DRASTIC A POWER AS TO REQUIRE THAT IT BE
CAREFULLY CIRCUMSCRIBED WHENEVER THE PRESIDENT WAS VESTED WITH THIS
EXTRAORDINARY AUTHORITY.  THE POWER TO SEIZE HAS UNIFORMLY BEEN GIVEN
ONLY FOR A LIMITED PERIOD OR FOR A DEFINED EMERGENCY, OR HAS BEEN
REPEALED AFTER A SHORT PERIOD.  IT EXERCISE HAS BEEN RESTRICTED TO
PARTICULAR CIRCUMSTANCES SUCH AS "TIME OF WAR OR WHEN WAR IS IMMINENT,"
THE NEEDS OF "PUBLIC SAFETY" OR OF "NATIONAL SECURITY OR DEFENSE," OR
"URGENT AND IMPENDING NEED."  THE PERIOD OF GOVERNMENTAL OPERATION HAS
BEEN LIMITED, AS, FOR INSTANCE, TO "SIXTY DAYS AFTER THE RESTORATION OF
PRODUCTIVE EFFICIENCY."  SEIZURE STATUTES USUALLY MAKE EXECUTIVE ACTION
DEPENDENT ON DETAILED CONDITIONS:  FOR EXAMPLE, (A) FAILURE OR REFUSAL
OF THE OWNER OF A PLANT TO MEET GOVERNMENTAL SUPPLY NEEDS OR (B)
FAILURE OF VOLUNTARY NEGOTIATIONS WITH THE OWNER FOR THE USE OF A PLANT
NECESSARY FOR GREAT PUBLIC ENDS.  CONGRESS OFTEN HAS SPECIFIED THE
PARTICULAR EXECUTIVE AGENCY WHICH SHOULD SEIZE OR OPERATE THE PLANTS OR
WHOSE JUDGMENT WOULD APPROPRIATELY TEST THE NEED FOR SEIZURE.  CONGRESS
ALSO HAS NOT LEFT TO IMPLICATION THAT JUST COMPENSATION BE PAID; IT HAS
USUALLY LEGISLATED IN DETAIL REGARDING ENFORCEMENT OF THIS LITIGATION
BREEDING GENERAL REQUIREMENT.  (SEE APPENDIX I, POST, P. 615.)(APPENDIX
I AND II OMITTED.) 

CONGRESS IN 1947 WAS AGAIN CALLED UPON TO CONSIDER WHETHER
GOVERNMENTAL SEIZURE SHOULD BE USED TO AVOID SERIOUS INDUSTRIAL
SHUTDOWNS.  CONGRESS DECIDED AGAINST CONFERRING SUCH POWER GENERALLY
AND IN ADVANCE, WITHOUT SPECIAL CONGRESSIONAL ENACTMENT TO MEET EACH
PARTICULAR NEED.  UNDER THE URGENCY OF TELEPHONE AND COAL STRIKES IN
THE WINTER OF 1946, CONGRESS ADDRESSED ITSELF TO THE PROBLEMS RAISED BY
"NATIONAL EMERGENCY" STRIKES AND LOCKOUTS.  (FN1)  THE TERMINATION OF
WARTIME SEIZURE POWERS ON DECEMBER 31, 1946, BROUGHT THESE MATTERS TO
THE ATTENTION OF CONGRESS WITH VIVID IMPACT.  A PROPOSAL THAT THE
PRESIDENT BE GIVEN POWERS TO SEIZE PLANTS TO AVERT A SHUTDOWN WHERE THE
"HEALTH OR SAFETY" OF THE NATION WAS ENDANGERED, WAS THOROUGHLY
CANVASSED BY CONGRESS AND REJECTED.  NO ROOM FOR DOUBT REMAINS THAT THE
PROPONENTS AS WELL AS THE OPPONENTS OF THE BILL WHICH BECAME THE LABOR
MANAGEMENT RELATIONS ACT OF 1947 CLEARLY UNDERSTOOD THAT AS A RESULT OF
THAT LEGISLATION THE ONLY RECOURSE FOR PREVENTING A SHUTDOWN IN ANY
BASIC INDUSTRY, AFTER FAILURE OF MEDIATION, WAS CONGRESS.  (FN2)
AUTHORIZATION FOR SEIZURE AS AN AVAILABLE REMEDY FOR POTENTIAL DANGERS
WAS UNEQUIVOCALLY PUT ASIDE.  THE SENATE LABOR COMMITTEE, THROUGH ITS
CHAIRMAN, EXPLICITLY REPORTED TO THE SENATE THAT A GENERAL GRANT OF
SEIZURE POWERS HAD BEEN CONSIDERED AND REJECTED IN FAVOR OF RELIANCE ON
AD HOC LEGISLATION, AS A PARTICULAR EMERGENCY MIGHT CALL FOR IT. (FN3)
AN AMENDMENT PRESENTED IN THE HOUSE PROVIDING THAT, WHERE NECESSARY "TO
PRESERVE AND PROTECT THE PUBLIC HEALTH AND SECURITY," THE PRESIDENT
MIGHT SEIZE ANY INDUSTRY IN WHICH THERE IS AN IMPENDING CURTAILMENT OF
PRODUCTION, WAS VOTED DOWN AFTER DEBATE, BY A VOTE OF MORE THAN THREE
TO ONE.  (FN4) 

IN ADOPTING THE PROVISIONS WHICH IT DID, BY THE LABOR MANAGEMENT
RELATIONS ACT OF 1947 FOR DEALING WITH A "NATIONAL EMERGENCY" ARISING
OUT OF A BREAKDOWN IN PEACEFUL INDUSTRIAL RELATIONS, CONGRESS WAS VERY
FAMILIAR WITH GOVERNMENTAL SEIZURE AS A PROTECTIVE MEASURE.  ON A
BALANCE OF CONSIDERATIONS, CONGRESS CHOSE NOT TO LODGE THIS POWER IN
THE PRESIDENT.  IT CHOSE NOT TO MAKE AVAILABLE IN ADVANCE A REMEDY TO
WHICH BOTH INDUSTRY AND LABOR WERE FIERCELY HOSTILE.  (FN5)  IN
DECIDING THAT AUTHORITY TO SEIZE SHOULD BE GIVEN TO THE PRESIDENT ONLY
AFTER FULL CONSIDERATION OF THE PARTICULAR SITUATION SHOULD SHOW SUCH
LEGISLATION TO BE NECESSARY, CONGRESS PRESUMABLY ACTED ON EXPERIENCE
WITH SIMILAR INDUSTRIAL CONFLICTS IN THE PAST.  IT EVIDENTLY ASSUMED
THAT INDUSTRIAL SHUTDOWNS IN BASIC INDUSTRIES ARE NOT INSTANCES OF
SPONTANEOUS GENERATION, AND THAT DANGER WARNINGS ARE SUFFICIENTLY PLAIN
BEFORE THE EVENT TO GIVE AMPLE OPPORTUNITY TO START THE LEGISLATIVE
PROCESS INTO ACTION. 

IN ANY EVENT, NOTHING CAN BE PLAINER THAN THAT CONGRESS MADE A
CONSCIOUS CHOICE OF POLICY IN A FIELD FULL OF PERPLEXITY AND PECULIARLY
WITHIN LEGISLATIVE RESPONSIBILITY FOR CHOICE.  IN FORMULATING
LEGISLATION FOR DEALING WITH INDUSTRIAL CONFLICTS, CONGRESS COULD NOT
MORE CLEARLY AND EMPHATICALLY HAVE WITHHELD AUTHORITY THAN IT DID IN
1947.  PERHAPS AS MUCH SO AS IS TRUE OF ANY PIECE OF MODERN
LEGISLATION, CONGRESS ACTED WITH FULL CONSCIOUSNESS OF WHAT IT WAS
DOING AND IN THE LIGHT OF MUCH RECENT HISTORY.  PREVIOUS SEIZURE
LEGISLATION HAD SUBJECTED THE POWERS GRANTED TO THE PRESIDENT TO
RESTRICTIONS OF VARYING DEGREES OF STRINGENCY.  INSTEAD OF GIVING HIM
EVEN LIMITED POWERS, CONGRESS IN 1947 DEEMED IT WISE TO REQUIRE THE
PRESIDENT, UPON FAILURE OF ATTEMPTS TO REACH A VOLUNTARY SETTLEMENT, TO
REPORT TO CONGRESS IF HE DEEMED THE POWER OF SEIZURE A NEEDED SHOT FOR
HIS LOCKER.  THE PRESIDENT COULD NOT IGNORE THE SPECIFIC LIMITATIONS OF
PRIOR SEIZURE STATUTES.  NO MORE COULD HE ACT IN DISREGARD OF THE
LIMITATION PUT UPON SEIZURE BY THE 1947 ACT. 

IT CANNOT BE CONTENDED THAT THE PRESIDENT WOULD HAVE HAD POWER TO
ISSUE THIS ORDER HAD CONGRESS EXPLICITLY NEGATED SUCH AUTHORITY IN
FORMAL LEGISLATION.  CONGRESS HAS EXPRESSED ITS WILL TO WITHHOLD THIS
POWER FROM THE PRESIDENT AS THOUGH IT HAD SAID SO IN SO MANY WORDS. 
THE AUTHORITATIVELY EXPRESSED PURPOSE OF CONGRESS TO DISALLOW SUCH
POWER TO THE PRESIDENT AND TO REQUIRE HIM, WHEN IN HIS MIND THE
OCCASION AROSE FOR SUCH A SEIZURE, TO PUT THE MATTER TO CONGRESS AND
ASK FOR SPECIFIC AUTHORITY FROM IT, COULD NOT BE MORE DECISIVE IF IT
HAD BEEN WRITTEN INTO SECS. 206-210 OF THE LABOR MANAGEMENT RELATIONS
ACT OF 1947.  ONLY THE OTHER DAY, WE TREATED THE CONGRESSIONAL GLOSS
UPON THOSE SECTIONS AS PART OF THE ACT.  BUS EMPLOYEES V. WISCONSIN
BOARD, 340 U.S. 383, 395-396.  GRAFTING UPON THE WORDS A PURPOSE OF
CONGRESS THUS UNEQUIVOCALLY EXPRESSED IS THE REGULAR LEGISLATIVE MODE
FOR DEFINING THE SCOPE OF AN ACT OF CONGRESS.  IT WOULD BE NOT MERELY
INFELICITOUS DRAFTSMANSHIP BUT ALMOST OFFENSIVE GAUCHERIE TO WRITE SUCH
A RESTRICTION UPON THE PRESIDENT'S POWER IN TERMS INTO A STATUTE RATHER
THAN TO HAVE IT AUTHORITATIVELY EXPOUNDED, AS IT WAS, BY CONTROLLING
LEGISLATIVE HISTORY. 

BY THE LABOR MANAGEMENT RELATIONS ACT OF 1947, CONGRESS SAID TO THE
PRESIDENT, "YOU MAY NOT SEIZE.  PLEASE REPORT TO US AND ASK FOR SEIZURE
POWER IF YOU THINK IT IS NEEDED IN A SPECIFIC SITUATION."  THIS OF
COURSE CALLS FOR A REPORT ON THE UNSUCCESSFUL EFFORTS TO REACH A
VOLUNTARY SETTLEMENT, AS A BASIS FOR DISCHARGE BY CONGRESS OF ITS
RESPONSIBILITY - WHICH IT HAS UNEQUIVOCALLY RESERVED - TO FASHION
FURTHER REMEDIES THAN IT PROVIDED.  (FN6)  BUT IT IS NOW CLAIMED THAT
THE PRESIDENT HAS SEIZURE POWER BY VIRTUE OF THE DEFENSE PRODUCTION ACT
OF 1950 AND ITS AMENDMENTS.  (FN7)  AND THE CLAIM IS BASED ON THE
OCCURRENCE OF NEW EVENTS - KOREA AND THE NEED FOR STABILIZATION, ETC. -
ALTHOUGH IT WAS WELL KNOWN THAT SEIZURE POWER WAS WITHHELD BY THE ACT
OF 1947, AND ALTHOUGH THE PRESIDENT, WHOSE SPECIFIC REQUESTS FOR OTHER
AUTHORITY WERE IN THE MAIN GRANTED BY CONGRESS, NEVER SUGGESTED THAT IN
VIEW OF THE NEW EVENTS HE NEEDED THE POWER OF SEIZURE WHICH CONGRESS IN
ITS JUDGMENT HAD DECIDED TO WITHHOLD FROM HIM.  THE UTMOST THAT THE
KOREAN CONFLICT MAY IMPLY IS THAT IT MAY HAVE BEEN DESIRABLE TO HAVE
GIVEN THE PRESIDENT FURTHER AUTHORITY, A FREER HAND IN THESE MATTERS. 
ABSENCE OF AUTHORITY IN THE PRESIDENT TO DEAL WITH A CRISIS DOES NOT
IMPLY WANT OF POWER IN THE GOVERNMENT.  CONVERSELY THE FACT THAT POWER
EXISTS IN THE GOVERNMENT DOES NOT VEST IT IN THE PRESIDENT.  THE NEED
FOR NEW LEGISLATION DOES NOT ENACT IT.  NOR DOES IT REPEAL OR AMEND
EXISTING LAW. 

NO AUTHORITY THAT HAS SINCE BEEN GIVEN TO THE PRESIDENT CAN BY ANY
FAIR PROCESS OF STATUTORY CONSTRUCTION BE DEEMED TO WITHDRAW THE
RESTRICTION OR CHANGE THE WILL OF CONGRESS AS EXPRESSED BY A BODY OF
ENACTMENTS, CULMINATING IN THE LABOR MANAGEMENT RELATIONS ACT OF 1947. 
TITLE V OF THE DEFENSE PRODUCTION ACT, ENTITLED "SETTLEMENT OF LABOR
DISPUTES," PRONOUNCED THE WILL OF CONGRESS "THAT THERE BE EFFECTIVE
PROCEDURES FOR THE SETTLEMENT OF LABOR DISPUTES AFFECTING NATIONAL
DEFENSE," AND THAT "PRIMARY RELIANCE" BE PLACED "UPON THE PARTIES TO
ANY LABOR DISPUTE TO MAKE EVERY EFFORT THROUGH NEGOTIATION AND
COLLECTIVE BARGAINING AND THE FULL USE OF MEDIATION AND CONCILIATION
FACILITIES TO EFFECT A SETTLEMENT IN THE NATIONAL INTEREST."  (FN8)
LABOR, INDUSTRY, AND PUBLIC AND GOVERNMENT REPRESENTATIVES AND TO "TAKE
SUCH ACTION AS MAY BE AGREED UPON IN ANY SUCH CONFERENCE AND
APPROPRIATE TO CARRY OUT THE PROVISIONS OF THIS TITLE," PROVIDED THAT
NO ACTION WAS TAKEN INCONSISTENT WITH THE LABOR MANAGEMENT RELATIONS
ACT OF 1947.  (FN9)  THIS PROVISION (FN10) WAS SAID BY THE SENATE
COMMITTEE ON BANKING AND CURRENCY TO CONTEMPLATE A BOARD SIMILAR TO THE
WAR LABOR BOARD OF WORLD WAR II AND "A NATIONAL LABOR-MANAGEMENT
CONFERENCE SUCH AS WAS HELD DURING WORLD WAR II, WHEN A NO-STRIKE, NO
LOCK-OUT PLEDGE WAS OBTAINED."  (FN11)  SECTION 502 WAS BELIEVED
NECESSARY IN ADDITION TO EXISTING MEANS FOR SETTLING DISPUTES
VOLUNTARILY BECAUSE THE FEDERAL MEDIATION AND CONCILIATION SERVICE
COULD NOT ENTER A LABOR DISPUTE UNLESS REQUESTED BY ONE PARTY.  (FN12)
SIMILAR EXPLANATIONS OF TITLE V WERE GIVEN IN THE CONFERENCE REPORT AND
BY SENATOR IVES, A MEMBER OF THE SENATE COMMITTEE TO WHOM CHAIRMAN
MAYBANK DURING THE DEBATES ON THE SENATE FLOOR REFERRED QUESTIONS
RELATING TO TITLE V. (FN13)  SENATOR IVES SAID:    "IT SHOULD BE
REMEMBERED IN THIS CONNECTION THAT DURING THE PERIOD OF THE PRESENT
EMERGENCY IT IS EXPECTED THAT THE CONGRESS WILL NOT ADJOURN, BUT, AT
MOST, WILL RECESS ONLY FOR VERY LIMITED PERIODS OF TIME.  IF,
THEREFORE, ANY SERIOUS WORK STOPPAGE SHOULD ARISE OR EVEN BE
THREATENED, IN SPITE OF THE TERMS OF THE LABOR-MANAGEMENT RELATIONS ACT
OF 1947, THE CONGRESS WOULD BE READILY AVAILABLE TO PASS SUCH
LEGISLATION AS MIGHT BE NEEDED TO MEET THE DIFFICULTY."  (FN14) 

THE DEFENSE PRODUCTION ACT AFFORDS NO GROUND FOR THE SUGGESTION THAT
THE 1947 DENIAL TO THE PRESIDENT OF SEIZURE POWERS HAS BEEN IMPLIEDLY
REPEALED, AND ITS LEGISLATIVE HISTORY CONTRADICTS SUCH A SUGGESTION. 
ALTHOUGH THE PROPONENTS OF THAT ACT RECOGNIZED THAT THE PRESIDENT WOULD
HAVE A CHOICE OF ALTERNATIVE METHODS OF SEEKING A MEDIATED SETTLEMENT,
THEY ALSO RECOGNIZED THAT CONGRESS ALONE RETAINED THE ULTIMATE COERCIVE
POWER TO MEET THE THREAT OF "ANY SERIOUS WORK STOPPAGE." 

THAT CONCLUSION IS NOT CHANGED BY WHAT OCCURRED AFTER THE PASSAGE OF
THE 1950 ACT.  SEVEN AND A HALF MONTHS LATER, ON APRIL 21, 1951, THE
PRESIDENT BY EXECUTIVE ORDER 10233 GAVE THE RECONSTITUTED WAGE
STABILIZATION BOARD AUTHORITY TO INVESTIGATE LABOR DISPUTES EITHER (1)
SUBMITTED VOLUNTARILY BY THE PARTIES, OR (2) REFERRED TO IT BY THE
PRESIDENT.  (FN15)  THE BOARD CAN ONLY MAKE "RECOMMENDATIONS TO THE
PARTIES AS TO FAIR AND EQUITABLE TERMS OF SETTLEMENT," UNLESS THE
PARTIES AGREE TO BE BOUND BY THE BOARD'S RECOMMENDATIONS.  ABOUT A
MONTH THEREAFTER SUBCOMMITTEES OF BOTH THE HOUSE AND SENATE LABOR
COMMITTEES BEGAN HEARINGS ON THE NEWLY ASSIGNED DISPUTES FUNCTIONS OF
THE BOARD.  (FN16)  AMENDMENTS TO DENY THE BOARD THESE FUNCTIONS WERE
VOTED DOWN IN THE HOUSE, (FN17) AND CONGRESS EXTENDED THE DEFENSE
PRODUCTION ACT WITHOUT CHANGING TITLE V IN RELEVANT PART.  (FN18) THE
LEGISLATIVE HISTORY OF THE DEFENSE PRODUCTION ACT AND ITS AMENDMENTS IN
1951 CANNOT POSSIBLY BE VOUCHED FOR MORE THAN CONGRESSIONAL AWARENESS
AND TACIT APPROVAL THAT THE PRESIDENT HAD CHARGED THE WAGE
STABILIZATION BOARD WITH AUTHORITY TO SEEK VOLUNTARY SETTLEMENT OF
LABOR DISPUTES.  THE MOST FAVORABLE INTERPRETATION OF THE STATEMENTS IN
THE COMMITTEE REPORTS CAN MAKE THEM MEAN NO MORE THAN "WE ARE GLAD TO
HAVE ALL THE MACHINERY POSSIBLE FOR THE VOLUNTARY SETTLEMENT OF LABOR
DISPUTES."  IN CONSIDERING THE DEFENSE PRODUCTION ACT AMENDMENTS,
CONGRESS WAS NEVER ASKED TO APPROVE - AND THERE IS NOT THE SLIGHTEST
INDICATION THAT THE RESPONSIBLE COMMITTEES EVER HAD IN MIND - SEIZURE
OF PLANTS TO COERCE SETTLEMENT OF DISPUTES.  WE ARE NOT EVEN CONFRONTED
BY AN INCONSISTENCY BETWEEN THE AUTHORITY CONFERRED ON THE WAGE BOARD,
AS FORMULATED BY THE EXECUTIVE ORDER, AND THE DENIAL OF PRESIDENTIAL
SEIZURE POWERS UNDER THE 1947 LEGISLATION.  THE BOARD HAS BEEN GIVEN
MERELY MEDIATORY POWERS SIMILAR TO THOSE OF AGENCIES CREATED BY THE
TAFT-HARTLEY ACT AND ELSEWHERE, WITH NO OTHER SANCTIONS FOR ACCEPTANCE
OF ITS RECOMMENDATIONS THAN ARE OFFERED BY ITS OWN MORAL AUTHORITY AND
THE PRESSURE OF PUBLIC OPINION.  THE DEFENSE PRODUCTION ACT AND THE
DISPUTES-MEDIATING AGENCIES CREATED SUBSEQUENT TO IT STILL LEAVE FOR
SOLUTION ELSEWHERE THE QUESTION WHAT ACTION CAN BE TAKEN WHEN ATTEMPTS
AT VOLUNTARY SETTLEMENT FAIL.  TO DRAW IMPLIED APPROVAL OF SEIZURE
POWER FROM THIS HISTORY IS TO MAKE SOMETHING OUT OF NOTHING. 

IT IS ONE THING TO DRAW AN INTENTION OF CONGRESS FROM GENERAL
LANGUAGE AND TO SAY THAT CONGRESS WOULD HAVE EXPLICITLY WRITTEN WHAT IS
INFERRED, WHERE CONGRESS HAS NOT ADDRESSED ITSELF TO A SPECIFIC
SITUATION.  IT IS QUITE IMPOSSIBLE, HOWEVER, WHEN CONGRESS DID
SPECIFICALLY ADDRESS ITSELF TO A PROBLEM, AS CONGRESS DID TO THAT OF
SEIZURE, TO FIND SECRETED IN THE INTERSTICES OF LEGISLATION THE VERY
GRANT OF POWER WHICH CONGRESS CONSCIOUSLY WITHHELD.  TO FIND AUTHORITY
SO EXPLICITLY WITHHELD IS NOT MERELY TO DISREGARD IN A PARTICULAR
INSTANCE THE CLEAR WILL OF CONGRESS.  IT IS TO DISRESPECT THE WHOLE
LEGISLATIVE PROCESS AND THE CONSTITUTIONAL DIVISION OF AUTHORITY
BETWEEN PRESIDENT AND CONGRESS. 

THE LEGISLATIVE HISTORY HERE CANVASSED IS RELEVANT TO YET ANOTHER OF
THE ISSUES BEFORE US, NAMELY, THE GOVERNMENT'S ARGUMENT THAT OVERRIDING
PUBLIC INTEREST PREVENTS THE ISSUANCE OF THE INJUNCTION DESPITE THE
ILLEGALITY OF THE SEIZURE.  I CANNOT ACCEPT THAT CONTENTION. 
"BALANCING THE EQUITIES" WHEN CONSIDERING WHETHER AN INJUNCTION SHOULD
ISSUE, IS LAWYERS' JARGON FOR CHOOSING BETWEEN CONFLICTING PUBLIC
INTERESTS.  WHEN CONGRESS ITSELF HAS STRUCK THE BALANCE, HAS DEFINED
THE WEIGHT TO BE GIVEN THE COMPETING INTERESTS, A COURT OF EQUITY IS
NOT JUSTIFIED IN IGNORING THAT PRONOUNCEMENT UNDER THE GUISE OF
EXERCISING EQUITABLE DISCRETION. 

APART FROM HIS VAST SHARE OF REPONSIBILITY FOR THE CONDUCT OF OUR
FOREIGN RELATIONS, THE EMBRACING FUNCTION OF THE PRESIDENT IS THAT "HE
SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED  ...  ."  ART. II,
SEC. 3.  THE NATURE OF THAT AUTHORITY HAS FOR ME BEEN COMPREHENSIVELY
INDICATED BY MR. JUSTICE HOLMES.  "THE DUTY OF THE PRESIDENT TO SEE
THAT THE LAWS BE EXECUTED IS A DUTY THAT DOES NOT GO BEYOND THE LAWS OR
REQUIRE HIM TO ACHIEVE MORE THAN CONGRESS SEES FIT TO LEAVE WITHIN HIS
POWER."  MYERS V. UNITED STATES, 272 U.S. 52, 177.  THE POWERS OF THE
PRESIDENT ARE NOT AS PARTICULARIZED AS ARE THOSE OF CONGRESS.  BUT
UNENUMERATED POWERS DO NOT MEAN UNDEFINED POWERS.  THE SEPARATION OF
POWERS BUILT INTO OUR CONSTITUTION GIVES ESSENTIAL CONTENT TO UNDEFINED
PROVISIONS IN THE FRAME OF OUR GOVERNMENT. 

TO BE SURE, THE CONTENT OF THE THREE AUTHORITIES OF GOVERNMENT IS NOT
TO BE DERIVED FROM AN ABSTRACT ANALYSIS.  THE AREAS ARE PARTLY
INTERACTING, NOT WHOLLY DISJOINTED.  THE CONSTITUTION IS A FRAMEWORK
FOR GOVERNMENT.  THEREFORE THE WAY THE FRAMEWORK HAS CONSISTENTLY
OPERATED FAIRLY ESTABLISHES THAT IT HAS OPERATED ACCORDING TO ITS TRUE
NATURE.  DEEPLY EMBEDDED TRADITIONAL WAYS OF CONDUCTING GOVERNMENT
CANNOT SUPPLANT THE CONSTITUTION OR LEGISLATION, BUT THEY GIVE MEANING
TO THE WORDS OF A TEXT OR SUPPLY THEM.  IT IS AN INADMISSIBLY NARROW
CONCEPTION OF AMERICAN CONSTITUTIONAL LAW TO CONFINE IT TO THE WORDS OF
THE CONSTITUTION AND TO DISREGARD THE GLOSS WHICH LIFE HAS WRITTEN UPON
THEM.  IN SHORT, A SYSTEMATIC, UNBROKEN, EXECUTIVE PRACTICE, LONG
PURSUED TO THE KNOWLEDGE OF THE CONGRESS AND NEVER BEFORE QUESTIONED,
ENGAGED IN BY PRESIDENTS WHO HAVE ALSO SWORN TO UPHOLD THE
CONSTITUTION, MAKING AS IT WERE SUCH EXERCISE OF POWER PART OF THE
STRUCTURE OF OUR GOVERNMENT, MAY BE TREATED AS A GLOSS ON "EXECUTIVE
POWER" VESTED IN THE PRESIDENT BY SEC. 1 OF ART. II. 

SUCH WAS THE CASE OF UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459. 
THE CONTRAST BETWEEN THE CIRCUMSTANCES OF THAT CASE AND THIS ONE HELPS
TO DRAW A CLEAR LINE BETWEEN AUTHORITY NOT EXPLICITLY CONFERRED YET
AUTHORIZED TO BE EXERCISED BY THE PRESIDENT AND THE DENIAL OF SUCH
AUTHORITY.  IN BOTH INSTANCES IT WAS THE CONCERN OF CONGRESS UNDER
EXPRESS CONSTITUTIONAL GRANT TO MAKE RULES AND REGULATIONS FOR THE
PROBLEMS WITH WHICH THE PRESIDENT DEALT.  IN THE ONE CASE HE WAS
DEALING WITH THE PROTECTION OF PROPERTY BELONGING TO THE UNITED STATES;
IN THE OTHER WITH THE ENFORCEMENT OF THE COMMERCE CLAUSE AND WITH
RAISING AND SUPPORTING ARMIES AND MAINTAINING THE NAVY.  IN THE MIDWEST
OIL CASE, LANDS WHICH CONGRESS HAD OPENED FOR ENTRY WERE, OVER A PERIOD
OF 80 YEARS AND IN 252 INSTANCES, AND BY PRESIDENTS LEARNED AND
UNLEARNED IN THE LAW, TEMPORARILY WITHDRAWN FROM ENTRY SO AS TO ENABLE
CONGRESS TO DEAL WITH SUCH WITHDRAWALS.  NO REMOTELY COMPARABLE
PRACTICE CAN BE VOUCHED FOR EXECUTIVE SEIZURE OF PROPERTY AT A TIME
WHEN THIS COUNTRY WAS NOT AT WAR, IN THE ONLY CONSTITUTIONAL WAY IN
WHICH IT CAN BE AT WAR.  IT WOULD PURSUE THE IRRELEVANT TO REOPEN THE
CONTROVERSY OVER THE CONSTITUTIONALITY OF SOME ACTS OF LINCOLN DURING
THE CIVIL WAR.  SEE J.G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN
(REVISED ED. 1951).  SUFFICE IT TO SAY THAT HE SEIZED RAILROADS IN
TERRITORY WHERE ARMED HOSTILITIES HAD ALREADY INTERRUPTED THE MOVEMENT
OF TROOPS TO THE BELEAGUERED CAPITAL, AND HIS ORDER WAS RATIFIED BY THE
CONGRESS. 

THE ONLY OTHER INSTANCES OF SEIZURES ARE THOSE DURING THE PERIODS OF
THE FIRST AND SECOND WORLD WARS.  (FN19)  IN HIS ELEVEN SEIZURES OF
INDUSTRIAL FACILITIES, PRESIDENT WILSON ACTED, OR AT LEAST PURPORTED TO
ACT, (FN20) UNDER AUTHORITY GRANTED BY CONGRESS.  THUS HIS SEIZURES
CANNOT BE ADDUCED AS INTERPRETATIONS BY A PRESIDENT OF HIS OWN POWERS
IN THE ABSENCE OF STATUTE. 

DOWN TO THE WORLD WAR II PERIOD, THEN, THE RECORD IS BARREN OF
INSTANCES COMPARABLE TO THE ONE BEFORE US.  OF TWELVE SEIZURES BY
PRESIDENT ROOSEVELT PRIOR TO THE ENACTMENT OF THE WAR LABOR DISPUTES
ACT IN JUNE, 1943, THREE WERE SANCTIONED BY EXISTING LAW, AND SIX
OTHERS WERE EFFECTED AFTER CONGRESS, ON DECEMBER 8, 1941, HAD DECLARED
THE EXISTENCE OF A STATE OF WAR.  IN THIS CASE, RELIANCE ON THE POWERS
THAT FLOW FROM DECLARED WAR HAS BEEN COMMENDABLY DISCLAIMED BY THE
SOLICITOR GENERAL.  THUS THE LIST OF EXECUTIVE ASSERTIONS OF THE POWER
OF SEIZURE IN CIRCUMSTANCES COMPARABLE TO THE PRESENT REDUCES TO THREE
IN THE SIX-MONTH PERIOD FROM JUNE TO DECEMBER OF 1941.  WE NEED NOT
SPLIT HAIRS IN COMPARING THOSE ACTIONS TO THE ONE BEFORE US, THOUGH
MUCH MIGHT BE SAID BY WAY OF DIFFERENTIATION.  WITHOUT PASSING ON THEIR
VALIDITY, AS WE ARE NOT CALLED UPON TO DO, IT SUFFICES TO SAY THAT
THESE THREE ISOLATED INSTANCES DO NOT ADD UP, EITHER IN NUMBER, SCOPE,
DURATION OR CONTEMPORANEOUS LEGAL JUSTIFICATION, TO THE KIND OF
EXECUTIVE CONSTRUCTION OF THE CONSTITUTION REVEALED IN THE MIDWEST OIL
CASE.  NOR DO THEY COME TO US SANCTIONED BY LONG-CONTINUED ACQUIESCENCE
OF CONGRESS GIVING DECISIVE WEIGHT TO A CONSTRUCTION BY THE EXECUTIVE
OF ITS POWERS. 

A SCHEME OF GOVERNMENT LIKE OURS NO DOUBT AT TIMES FEELS THE LACK OF
POWER TO ACT WITH COMPLETE, ALL-EMBRACING, SWIFTLY MOVING AUTHORITY. 
NO DOUBT A GOVERNMENT WITH DISTRIBUTED AUTHORITY, SUBJECT TO BE
CHALLENGED IN THE COURTS OF LAW, AT LEAST LONG ENOUGH TO CONSIDER AND
ADJUDICATE THE CHALLENGE, LABORS UNDER RESTRICTIONS FROM WHICH OTHER
GOVERNMENTS ARE FREE.  IT HAS NOT BEEN OUR TRADITION TO ENVY SUCH
GOVERNMENTS.  IN ANY EVENT OUR GOVERNMENT WAS DESIGNED TO HAVE SUCH
RESTRICTIONS.  THE PRICE WAS DEEMED NOT TOO HIGH IN VIEW OF THE
SAFEGUARDS WHICH THESE RESTRICTIONS AFFORD.  I KNOW NO MORE IMPRESSIVE
WORDS ON THIS SUBJECT THAN THOSE OF MR. JUSTICE BRANDEIS: 

"THE DOCTRINE OF THE SEPARATION OF POWERS WAS ADOPTED BY THE
CONVENTION OF 1787, NOT TO PROMOTE EFFICIENCY BUT TO PRECLUDE THE
EXERCISE OF ARBITRARY POWER.  THE PURPOSE WAS, NOT TO AVOID FRICTION,
BUT, BY MEANS OF THE INEVITABLE FRICTION INCIDENT TO THE DISTRIBUTION
OF THE GOVERNMENTAL POWERS AMONG THREE DEPARTMENTS, TO SAVE THE PEOPLE
FROM AUTOCRACY."  MYERS V. UNITED STATES, 272 U.S. 52, 240, 293. 

IT IS NOT A PLEASANT JUDICIAL DUTY TO FIND THAT THE PRESIDENT HAS
EXCEEDED HIS POWERS AND STILL LESS SO WHEN HIS PURPOSES WERE DICTATED
BY CONCERN FOR THE NATION'S WELL-BEING, IN THE ASSURED CONVICTION THAT
HE ACTED TO AVERT DANGER.  BUT IT WOULD STULTIFY ONE'S FAITH IN OUR
PEOPLE TO ENTERTAIN EVEN A MOMENTARY FEAR THAT THE PATRIOTISM AND THE
WISDOM OF THE PRESIDENT AND THE CONGRESS, AS WELL AS THE LONG VIEW OF
THE IMMEDIATE PARTIES IN INTEREST, WILL NOT FIND READY ACCOMMODATION
FOR DIFFERENCES ON MATTERS WHICH, HOWEVER CLOSE TO THEIR CONCERN AND
HOWEVER INTRINSICALLY IMPORTANT, ARE OVERSHADOWED BY THE AWESOME ISSUES
WHICH CONFRONT THE WORLD.  WHEN AT A MOMENT OF UTMOST ANXIETY PRESIDENT
WASHINGTON TURNED TO THIS COURT FOR ADVICE, AND HE HAD TO BE DENIED IT
AS BEYOND THE COURT'S COMPETENCE TO GIVE, CHIEF JUSTICE JAY, ON BEHALF
OF THE COURT, WROTE THUS TO THE FATHER OF HIS COUNTRY: 

"WE EXCEEDINGLY REGRET EVERY EVENT THAT MAY CAUSE EMBARRASSMENT TO
YOUR ADMINSTRATION, BUT WE DERIVE CONSOLATION FROM THE REFLECTION THAT
YOUR JUDGMENT WILL DISCERN WHAT IS RIGHT, AND THAT YOUR USUAL PRUDENCE,
DECISION, AND FIRMNESS WILL SURMOUNT EVERY OBSTACLE TO THE PRESERVATION
OF THE RIGHTS, PEACE, AND DIGNITY OF THE UNITED STATES."  LETTER OF
AUGUST 8, 1793, 3 JOHNSTON, CORRESPONDENCE AND PUBLIC PAPERS OF JOHN
JAY (1891), 489. 

IN REACHING THE CONCLUSION THAT CONSCIENCE COMPELS, I TOO DERIVE
CONSOLATION FROM THE REFLECTION THAT THE PRESIDENT AND THE CONGRESS
BETWEEN THEM WILL CONTINUE TO SAFEGUARD THE HERITAGE WHICH COMES TO
THEM STRAIGHT FROM GEORGE WASHINGTON. 

FN1  THE POWER TO SEIZE PLANTS UNDER THE WAR LABOR DISPUTES ACT ENDED
WITH THE TERMINATION OF HOSTILITIES, PROCLAIMED ON DEC. 31, 1946, PRIOR
TO THE INCOMING OF THE EIGHTIETH CONGRESS; AND THE POWER TO OPERATE
PREVIOUSLY SEIZED PLANTS ENDED ON JUNE 30, 1947, ONLY A WEEK AFTER THE
ENACTMENT OF THE LABOR MANAGEMENT RELATIONS ACT OVER THE PRESIDENT'S
VETO.  57 STAT. 163, 165, 50 U.S.C. APP. (1946 ED.)  SEC.  1503.  SEE 2
LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947
(PUBLISHED BY NATIONAL LABOR RELATIONS BOARD, 1948), 1145, 1519, 1626. 

FN2  SOME OF THE MORE DIRECTLY RELEVANT STATEMENTS ARE THE FOLLOWING:
"IN MOST INSTANCES THE FORCE OF PUBLIC OPINION SHOULD MAKE ITSELF
SUFFICIENTLY FELT IN THIS 80-DAY PERIOD TO BRING ABOUT A PEACEFUL
TERMINATION OF THE CONTROVERSY.  SHOULD THIS EXPECTATION FAIL, THE BILL
PROVIDES FOR THE PRESIDENT LAYING THE MATTER BEFORE CONGRESS FOR
WHATEVER LEGISLATION SEEMS NECESSARY TO PRESERVE THE HEALTH AND SAFETY
OF THE NATION IN THE CRISIS."  SENATE REPORT NO. 105, 80TH CONG., 1ST
SESS. 15. 

"WE BELIEVE IT WOULD BE MOST UNWISE FOR THE CONGRESS TO ATTEMPT TO
ADOPT LAWS RELATING TO ANY SINGLE DISPUTE BETWEEN PRIVATE PARTIES." 
SENATE MINORITY REPORT, ID., PART 2, AT 17. 

IN THE DEBATES SENATOR H. ALEXANDER SMITH, A MEMBER OF THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE, SAID, "IN THE EVENT OF A
DEADLOCK AND A STRIKE IS NOT ENDED, THE MATTER IS REFERRED TO THE
PRESIDENT, WHO CAN USE HIS DISCRETION AS TO WHETHER HE WILL PRESENT THE
MATTER TO THE CONGRESS, WHETHER OR NOT THE SITUATION IS SUCH THAT
EMERGENCY LEGISLATION IS REQUIRED.    "NOTHING HAS BEEN DONE WITH
RESPECT TO THE SMITH-CONNALLY ACT.  THERE IS NO PROVISION FOR TAKING
OVER PROPERTY OR RUNNING PLANTS BY THE GOVERNMENT.  WE SIMPLY PROVIDE A
PROCEDURE WHICH WE HOPE WILL BE EFFECTIVE IN 99 OUT OF 100 CASES WHERE
THE HEALTH OR SAFETY OF THE PEOPLE MAY BE AFFECTED, AND STILL LEAVE A
LOOPHOLE FOR CONGRESSIONAL ACTION."  93 CONG. REC. 4281. 

THE PRESIDENT IN HIS VETO MESSAGE SAID, "  ...  IT WOULD BE MANDATORY
FOR THE PRESIDENT TO TRANSFER THE WHOLE PROBLEM TO THE CONGRESS, EVEN
IF IT WERE NOT IN SESSION.  THUS, MAJOR ECONOMIC DISPUTES BETWEEN
EMPLOYERS AND THEIR WORKERS OVER CONTRACT TERMS MIGHT ULTIMATELY BE
THROWN INTO THE POLITICAL ARENA FOR DISPOSITION.  ONE COULD SCARCELY
DEVISE A LESS EFFECTIVE METHOD FOR DISCOURAGING CRITICAL STRIKES."  93
CONG. REC. 7487. 

FN3  SENATOR TAFT SAID: 

"IF THERE FINALLY DEVELOPS A COMPLETE NATIONAL EMERGENCY THREATENING
THE SAFETY AND HEALTH OF THE PEOPLE OF THE UNITED STATES, CONGRESS CAN
PASS AN EMERGENCY LAW TO COVER THE PARTICULAR EMERGENCY  ...  . 

"WE HAVE FELT THAT PERHAPS IN THE CASE OF A GENERAL STRIKE, OR IN THE
CASE OF OTHER SERIOUS STRIKES, AFTER THE TERMINATION OF EVERY POSSIBLE
EFFORT TO RESOLVE THE DISPUTE, THE REMEDY MIGHT BE AN EMERGENCY ACT BY
CONGRESS FOR THAT PARTICULAR PURPOSE. 

"  ...  BUT WHILE SUCH A BILL FOR SEIZURE OF PLANTS AND UNION FUNDS
MIGHT BE PREPARED, I SHOULD BE UNWILLING TO PLACE SUCH A LAW ON THE
BOOKS UNTIL WE ACTUALLY FACE SUCH AN EMERGENCY, AND CONGRESS APPLIES
THE REMEDY FOR THE PARTICULAR EMERGENCY ONLY.  EIGHTY DAYS WILL PROVIDE
PLENTY OF TIME WITHIN WHICH TO CONSIDER THE POSSIBILITY OF WHAT SHOULD
BE DONE; AND WE BELIEVE VERY STRONGLY THAT THERE SHOULD NOT BE ANYTHING
IN THIS LAW WHICH PROHIBITS FINALLY THE RIGHT TO STRIKE."  93 CONG.
REC. 3835-3836. 

FN4  93 CONG. REC. 3637-3645. 

FN5  SEE, FOR INSTANCE, THE STATEMENTS OF JAMES B. CAREY, SECRETARY
OF THE C.I.O., IN OPPOSITION TO S. 2054, 77TH CONG., 1ST SESS., WHICH
EVENTUALLY BECAME THE WAR LABOR DISPUTES ACT.  CENTRAL TO THAT ACT, OF
COURSE, WAS THE TEMPORARY GRANT OF THE SEIZURE POWER TO THE PRESIDENT. 
MR. CAREY THEN SAID: 

"SENATOR BURTON.  IF THIS WOULD CONTINUE FOREVER IT MIGHT MEAN THE
NATIONALIZATION OF INDUSTRY? 

"MR. CAREY.  LET US CONSIDER IT ON A TEMPORARY BASIS.  HOW IS THE LAW
BORNE BY LABOR?  HERE IS THE GOVERNMENT-SPONSORED STRIKE BREAKING
AGENCY, AND NOTHING MORE. 

     *         *         *         *   * 

"OUR SUGGESTION OF A VOLUNTARY AGREEMENT OF THE REPRESENTATIVES OF
INDUSTRY AND LABOR AND GOVERNMENT, PARTICIPATING IN CALLING A
CONFERENCE, IS A DEMOCRATIC WAY.  THE OTHER ONE IS THE IMPOSITION OF
FORCE, THE OTHER IS THE IMPOSITION OF SEIZURE OF CERTAIN THINGS FOR A
TEMPORARY PERIOD; THE DESTRUCTION OF COLLECTIVE BARGAINING, AND IT
WOULD BREAK DOWN LABOR RELATIONS THAT MAY HAVE BEEN BUILT UP OVER A
LONG PERIOD." 

HEARING BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY ON S. 2054, 77TH CONG., 1ST SESS 132. 

FN6  CLEARLY THE PRESIDENT'S MESSAGE OF APRIL 9 AND HIS FURTHER
LETTER TO THE PRESIDENT OF THE SENATE ON APRIL 21 DO NOT SATISFY THIS
REQUIREMENT.  CONG. REC., APRIL 9, 1952, PP. 3962-3963; ID., APRIL 21,
1952, P. 4192. 

FN7  64 STAT. 798 ET SEQ., 65 STAT. 131 ET SEQ., 50 U.S.C. APP. SEC.
2061 EQ SEQ. 

FN8  SECS. 501, 502, 64 STAT. 798, 812, 50 U.S.C. APP. SECS. 2121,
2122. 

FN9  SECS. 502, 503, 64 STAT. 798, 812, 50 U.S.C. APP. SECS. 2122,
2123. 

FN10  THE PROVISION OF SEC. 502 IN S. 3936, AS REPORTED BY THE SENATE
COMMITTEE ON BANKING AND CURRENCY, READ AS FOLLOWS:  "THE PRESIDENT IS
AUTHORIZED, AFTER CONSULTATION WITH LABOR AND MANAGEMENT, TO ESTABLISH
SUCH PRINCIPLES AND PROCEDURES AND TO TAKE SUCH ACTION AS HE DEEMS
APPROPRIATE FOR THE SETTLEMENT OF LABOR DISPUTES AFFECTING NATIONAL
DEFENSE, INCLUDING THE DESIGNATION OF SUCH PERSONS, BOARDS OR
COMMISSIONS AS HE MAY DEEM APPROPRIATE TO CARRY OUT THE PROVISIONS OF
THIS TITLE."  THAT LANGUAGE WAS SUPERSEDED IN THE CONFERENCE REPORT BY
THE LANGUAGE THAT WAS FINALLY ENACTED.  H.R. REP. NO. 3042, 81ST CONG.,
2D SESS. 16, 35.  THE CHANGE MADE BY THE CONFERENCE COMMITTEE WAS FOR
THE PURPOSE OF EMPHASIZING THE VOLUNTARY NATURE OF THE COOPERATION
SOUGHT FROM THE PUBLIC, LABOR, AND MANAGEMENT; AS SENATOR IVES
EXPLAINED UNDER REPEATED QUESTIONING, "IF ANY GROUP WERE TO HOLD OUT,
THERE WOULD BE NO AGREEMENT ON ACTION TO CARRY OUT THE PROVISIONS OF
THIS TITLE."  96 CONG. REC. 14071.  CHAIRMAN MAYBANK OF THE SENATE
COMMITTEE ON BANKING AND CURRENCY SAID, "THE LABOR DISPUTES TITLE OF
THE SENATE WAS ACCEPTED BY THE HOUSE WITH AMENDMENT WHICH MERELY
INDICATES MORE SPECIFIC AVENUES THROUGH WHICH THE PRESIDENT MAY BRING
LABOR AND MANAGEMENT TOGETHER."  ID., AT 14073. 

FN11  S. REP. NO. 2250, 81ST CONG., 2D SESS. 41; H.R. REP. NO. 3042,
81ST CONG., 2D SESS. 35.  IT IS HARDLY NECESSARY TO NOTE THAT
CONGRESSIONAL AUTHORIZATION OF AN AGENCY SIMILAR TO THE WAR LABOR BOARD
DOES NOT IMPLY A CONGRESSIONAL GRANT OF SEIZURE POWER SIMILAR TO THAT
GIVEN THE PRESIDENT SPECIFICALLY BY SEC. 3 OF THE WAR LABOR DISPUTES
ACT OF 1943.  THE WAR LABOR BOARD, CREATED BY SEC. 7 OF THE 1943 ACT,
HAD ONLY ADMINISTRATIVE SANCTIONS.  SEE 57 STAT. 163, 166-167; SEE
REPORT OF SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, THE DISPUTES
FUNCTIONS OF THE WAGE STABILIZATION BOARD, 1951, S. REP. NO. 1037, 82D
CONG., 1ST SESS. 6.  THE SEIZURE POWER GIVEN BY CONGRESS IN SEC. 3 OF
THE 1943 ACT WAS GIVEN TO THE PRESIDENT, NOT TO THE WAR LABOR BOARD,
AND WAS NEEDED ONLY WHEN THE WAR LABOR BOARD REPORTED IT HAD FAILED;
THE SEIZURE POWER WAS SEPARATE AND APART FROM THE WAR LABOR BOARD
MACHINERY FOR SETTLING DISPUTES.  AT MOST THE DEFENSE PRODUCTION ACT
DOES WHAT SEC. 7 OF THE WAR LABOR DISPUTES ACT DID; THE OMISSION OF ANY
GRANT OR SEIZURE POWER SIMILAR TO SEC. 3 IS TOO OBVIOUS NOT TO HAVE
BEEN CONSCIOUS.  AT ANY RATE, THE WAGE STABILIZATION BOARD DIFFERS
SUBSTANTIALLY FROM THE EARLIER WAR LABOR BOARD.  IN 1951 THE SENATE
COMMITTEE STUDYING THE DISPUTES FUNCTIONS OF THE WAGE STABILIZATION
BOARD POINTED OUT THE SUBSTANTIAL DIFFERENCES BETWEEN THAT BOARD AND
ITS PREDECESSOR AND CONCLUDED THAT "THE NEW WAGE STABILIZATION BOARD
...  DOES NOT RELY ON TITLE V OF THE DEFENSE PRODUCTION ACT FOR ITS
AUTHORITY."  S. REP. NO. 1037, 82D CONG., 1ST SESS., SUPRA, AT 4-6. 

FN12  S. REP. NO. 2250, 81ST CONG., 2D SESS. 41. 

FN13  SEE 96 CONG. REC. 14071. 

FN14  ID., AT 12275.  JUST BEFORE THE PARAGRAPH QUOTED IN THE TEXT,
SENATOR IVES HAD SAID: 

"IN FACT, THE COURTS HAVE UPHELD THE CONSTITUTIONALITY OF THE
NATIONAL EMERGENCY PROVISIONS OF THE LABOR-MANAGEMENT RELATIONS ACT OF
1947, WHICH CAN REQUIRE THAT WORKERS STAY ON THE JOB FOR AT LEAST 80
DAYS WHEN A STRIKE WOULD SERIOUSLY THREATEN THE NATIONAL HEALTH AND
SAFETY IN PEACETIME. 

"BY THE TERMS OF THE PENDING BILL, THE LABOR-MANAGEMENT RELATIONS ACT
OF 1947 WOULD BE CONTROLLING IN MATTERS AFFECTING THE RELATIONSHIP
BETWEEN LABOR AND MANAGEMENT, INCLUDING COLLECTIVE BARGAINING.  IT
SEEMS TO ME, HOWEVER, THAT THIS IS AS FAR AS WE SHOULD GO IN
LEGISLATION OF THIS TYPE. 

FN15  16 FED. REG. 3503.  THE DISPUTES FUNCTIONS WERE NOT GIVEN TO
THE WAGE STABILIZATION BOARD UNDER TITLE V, SEE NOTE 11, SUPRA, BUT
APPARENTLY UNDER THE MORE GENERAL TITLE IV, ENTITLED "PRICE AND WAGE
STABILIZATION." 

FN16  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
EDUCATION AND LABOR, DISPUTES FUNCTIONS OF WAGE STABILIZATION BOARD,
82D CONG., 1ST SESS. (MAY 28-JUNE 15, 1951); HEARINGS BEFORE THE
SUBCOMMITTEE ON LABOR AND LABOR-MANAGEMENT RELATIONS OF SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE, WAGE STABILIZATION AND DISPUTES
PROGRAM, 82D CONG., 1ST SESS. (MAY 17-JUNE 7, 1951).  THE RESULTING
REPORT OF THE SENATE COMMITTEE, S. REP. NO. 1037, 82D CONG., 1ST SESS.
9, RECOMMENDED THAT "TITLE V OF THE DEFENSE PRODUCTION ACT BE RETAINED"
AND THAT "NO STATUTORY LIMITATIONS BE IMPOSED ON THE PRESIDENT'S
AUTHORITY TO DEAL WITH DISPUTES THROUGH VOLUNTARY MACHINERY; SUCH
LIMITATIONS, WE BELIEVE, WOULD INFRINGE ON THE PRESIDENT'S
CONSTITUTIONAL POWER."  THE COMMITTEE FOUND, ID., AT 10, THAT THE "WAGE
STABILIZATION BOARD RELIES COMPLETELY ON VOLUNTARY MEANS FOR SETTLING
DISPUTES AND IS, THEREFORE, AN EXTENSION OF FREE COLLECTIVE
BARGAINING.  THE BOARD HAS NO POWERS OF LEGAL COMPULSION."  "EXECUTIVE
ORDER NO. 10233," THE COMMITTEE FOUND FURTHER, "DOES NOT IN ANY WAY RUN
COUNTER TO THE  ...  TAFT-HARTLEY ACT.  IT IS SIMPLY AN ADDITIONAL
TOOL, NOT A SUBSTITUTE FOR THESE LAWS."  OF PARTICULAR RELEVANCE TO THE
PRESENT CASE, THE COMMITTEE DECLARED: 

"THE RECOMMENDATIONS OF THE WAGE STABILIZATION BOARD IN DISPUTES
CERTIFIED BY THE PRESIDENT HAVE NO COMPULSIVE FORCE.  THE PARTIES ARE
FREE TO DISREGARD RECOMMENDATIONS OF THE WAGE STABILIZATION BOARD  ...
. 

"THERE IS, OF COURSE, THE PRESIDENT'S AUTHORITY TO SEIZE PLANTS UNDER
THE SELECTIVE SERVICE ACT (A POWER NOT HERE USED), BUT THIS IS AN
AUTHORITY WHICH EXISTS INDEPENDENTLY OF THE WAGE STABILIZATION BOARD
AND ITS DISPUTES-HANDLING FUNCTIONS.  IN ANY CASE, SEIZURE IS AN
EXTRAORDINARY REMEDY, AND THE AUTHORITY TO SEIZE, OPERATES WHETHER OR
NOT THERE IS A DISPUTES-HANDLING MACHINERY."  ID., AT 5. 

FN17  97 CONG. REC. 8390-8415. 

FN18  65 STAT. 131. 

FN19  INSTANCES OF SEIZURE BY THE PRESIDENT ARE SUMMARIZED IN
APPENDIX II, POST, P. 620. 

FN20  ONE OF PRESIDENT WILSON'S SEIZURES HAS GIVEN RISE TO
CONTROVERSY.  IN HIS TESTIMONY IN JUSTIFICATION OF THE MONTGOMERY WARD
SEIZURE DURING WORLD WAR II, ATTORNEY GENERAL BIDDLE ARGUED THAT THE
WORLD WAR I SEIZURE OF SMITH & WESSON COULD NOT BE SUPPORTED UNDER ANY
OF THE WORLD WAR I STATUTES AUTHORIZING SEIZURE.  HE THUS ADDUCED IT IN
SUPPORT OF THE CLAIM OF SO-CALLED INHERENT PRESIDENTIAL POWER OF
SEIZURE.  SEE HEARINGS BEFORE HOUSE SELECT COMMITTEE TO INVESTIGATE THE
SEIZURE OF MONTGOMERY WARD, 78TH CONG., 2D SESS.  167-168.  IN SO
DOING, HE FOLLOWED THE ARDOR OF ADVOCATES IN CLAIMING EVERYTHING.  IN
HIS OWN OPINION TO THE PRESIDENT, HE RESTED THE POWER TO SEIZE
MONTGOMERY WARD ON THE STATUTORY AUTHORITY OF THE WAR LABOR DISPUTES
ACT, SEE 40 OP. ATTY. GEN. 312 (1944), AND THE COURT OF APPEALS
DECISION UPHOLDING THE MONTGOMERY WARD SEIZURE CONFINED ITSELF TO THAT
GROUND.  UNITED STATES V. MONTGOMERY WARD & CO., 150 F.2D 369.  WHAT
ATTORNEY GENERAL BIDDLE SAID ABOUT SMITH & WESSON WAS, OF COURSE, POST
LITEM MOTAM.  WHETHER OR NOT THE WORLD WAR I STATUTES WERE BROAD ENOUGH
TO JUSTIFY THAT SEIZURE, IT IS CLEAR THAT THE TAKING OFFICERS CONCEIVED
THEMSELVES AS MOVING WITHIN THE SCOPE OF STATUTE LAW.  SEE LETTER FROM
ADMINISTRATIVE DIV., ADVISORY SEC. TO WAR DEP'T. BD. OF APPRAISERS,
NATIONAL ARCHIVES, RECORDS OF THE WAR DEPARTMENT, OFFICE OF THE CHIEF
OF ORDNANCE, O.O. 004.002/194 SMITH & WESSON, APR. 2, 1919; N. 3,
APPENDIX II, POST, P. 620.  THUS, WHETHER OR NOT THAT SEIZURE WAS
WITHIN THE STATUTE, IT CANNOT PROPERLY BE CITED AS A PRECEDENT FOR THE
ONE BEFORE US.  ON THIS GENERAL SUBJECT, COMPARE ATTORNEY GENERAL
KNOX'S OPINION ADVISING PRESIDENT THEODORE ROOSEVELT AGAINST THE SO
CALLED "STEWARDSHIP" THEORY OF THE PRESIDENCY.  NATIONAL ARCHIVES,
OPINIONS OF THE ATTORNEY GENERAL, BOOK 31, OCT. 10, 1902 (R.G. 60);
THEODORE ROOSEVELT, AUTOBIOGRAPHY, 388-389; 3 MORISON, THE LETTERS OF
THEODORE ROOSEVELT, 323-366. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THERE CAN BE NO DOUBT THAT THE EMERGENCY WHICH CAUSED THE PRESIDENT
TO SEIZE THESE STEEL PLANTS WAS ONE THAT BORE HEAVILY ON THE COUNTRY. 
BUT THE EMERGENCY DID NOT CREATE POWER; IT MERELY MARKED AN OCCASION
WHEN POWER SHOULD BE EXERCISED.  AND THE FACT THAT IT WAS NECESSARY
THAT MEASURES BE TAKEN TO KEEP STEEL IN PRODUCTION DOES NOT MEAN THAT
THE PRESIDENT, RATHER THAN THE CONGRESS, HAD THE CONSTITUTIONAL
AUTHORITY TO ACT.  THE CONGRESS, AS WELL AS THE PRESIDENT, IS TRUSTEE
OF THE NATIONAL WELFARE.  THE PRESIDENT CAN ACT MORE QUICKLY THAN THE
CONGRESS.  THE PRESIDENT WITH THE ARMED SERVICES AT HIS DISPOSAL CAN
MOVE WITH FORCE AS WELL AS WITH SPEED.  ALL EXECUTIVE POWER - FROM THE
REIGN OF ANCIENT KINGS TO THE RULE OF MODERN DICTATORS - HAS THE
OUTWARD APPEARANCE OF EFFICIENCY. 

LEGISLATIVE POWER, BY CONTRAST, IS SLOWER TO EXERCISE.  THERE MUST BE
DELAY WHILE THE PONDEROUS MACHINERY OF COMMITTEES, HEARINGS, AND
DEBATES IS PUT INTO MOTION.  THAT TAKES TIME; AND WHILE THE CONGRESS
SLOWLY MOVES INTO ACTION, THE EMERGENCY MAY TAKE ITS TOLL IN WAGES,
CONSUMER GOODS, WAR PRODUCTION, THE STANDARD OF LIVING OF THE PEOPLE,
AND PERHAPS EVEN LIVES.  LEGISLATIVE ACTION MAY INDEED OFTEN BE
CUMBERSOME, TIME-CONSUMING, AND APPARENTLY INEFFICIENT.  BUT AS MR.
JUSTICE BRANDEIS STATED IN HIS DISSENT IN MYERS V. UNITED STATES, 272
U.S. 52, 293: 

"THE DOCTRINE OF THE SEPARATION OF POWERS WAS ADOPTED BY THE
CONVENTION OF 1787, NOT TO PROMOTE EFFICIENCY BUT TO PRECLUDE THE
EXERCISE OF ARBITRARY POWER.  THE PURPOSE WAS, NOT TO AVOID FRICTION,
BUT, BY MEANS OF THE INEVITABLE FRICTION INCIDENT TO THE DISTRIBUTION
OF THE GOVERNMENTAL POWERS AMONG THREE DEPARTMENTS, TO SAVE THE PEOPLE
FROM AUTOCRACY." 

WE THEREFORE CANNOT DECIDE THIS CASE BY DETERMINING WHICH BRANCH OF
GOVERNMENT CAN DEAL MOST EXPEDITIOUSLY WITH THE PRESENT CRISIS.  THE
ANSWER MUST DEPEND ON THE ALLOCATION OF POWERS UNDER THE CONSTITUTION. 
THAT IN TURN REQUIRES AN ANALYSIS OF THE CONDITIONS GIVING RISE TO THE
SEIZURE AND OF THE SEIZURE ITSELF. 

THE RELATIONS BETWEEN LABOR AND INDUSTRY ARE ONE OF THE CRUCIAL
PROBLEMS OF THE ERA.  THEIR SOLUTION WILL DOUBTLESS ENTAIL MANY METHODS
- EDUCATION OF LABOR LEADERS AND BUSINESS EXECUTIVES; THE ENCOURAGEMENT
OF MEDIATION AND CONCILIATION BY THE PRESIDENT AND THE USE OF HIS GREAT
OFFICE IN THE CAUSE OF INDUSTRIAL PEACE; AND THE PASSAGE OF LAWS.  LAWS
ENTAIL SANCTIONS - PENALTIES FOR THEIR VIOLATION.  ONE TYPE OF SANCTION
IS FINE AND IMPRISONMENT.  ANOTHER IS SEIZURE OF PROPERTY.  AN INDUSTRY
MAY BECOME SO LAWLESS, SO IRRESPONSIBLE AS TO ENDANGER THE WHOLE
ECONOMY.  SEIZURE OF THE INDUSTRY MAY BE THE ONLY WISE AND PRACTICAL
SOLUTION.    THE METHOD BY WHICH INDUSTRIAL PEACE IS ACHIEVED IS OF
VITAL IMPORTANCE NOT ONLY TO THE PARTIES BUT TO SOCIETY AS WELL.  A
DETERMINATION THAT SANCTIONS SHOULD BE APPLIED, THAT THE HAND OF THE
LAW SHOULD BE PLACED UPON THE PARTIES, AND THAT THE FORCE OF THE COURTS
SHOULD BE DIRECTED AGAINST THEM, IS AN EXERCISE OF LEGISLATIVE POWER. 
IN SOME NATIONS THAT POWER IS ENTRUSTED TO THE EXECUTIVE BRANCH AS A
MATTER OF COURSE OR IN CASE OF EMERGENCIES.  WE CHOSE ANOTHER COURSE. 
WE CHOSE TO PLACE THE LEGISLATIVE POWER OF THE FEDERAL GOVERNMENT IN
THE CONGRESS.  THE LANGUAGE OF THE CONSTITUTION IS NOT AMBIGUOUS OR
QUALIFIED.  IT PLACES NOT SOME LEGISLATIVE POWER IN THE CONGRESS;
ARTICLE I, SECTION 1 SAYS "ALL LEGISLATIVE POWERS HEREIN GRANTED SHALL
BE VESTED IN A CONGRESS OF THE UNITED STATES, WHICH SHALL CONSIST OF A
SENATE AND HOUSE OF REPRESENTATIVES." 

THE LEGISLATIVE NATURE OF THE ACTION TAKEN BY THE PRESIDENT SEEMS TO
ME TO BE CLEAR.  WHEN THE UNITED STATES TAKES OVER AN INDUSTRIAL PLANT
TO SETTLE A LABOR CONTROVERSY, IT IS CONDEMNING PROPERTY.  THE SEIZURE
OF THE PLANT IS A TAKING IN THE CONSTITUTIONAL SENSE.  UNITED STATES V.
PEWEE COAL CO., 341 U.S. 114.  A PERMANENT TAKING WOULD AMOUNT TO THE
NATIONALIZATION OF THE INDUSTRY.  A TEMPORARY TAKING FALLS SHORT OF
THAT GOAL.  BUT THOUGH THE SEIZURE IS ONLY FOR A WEEK OR A MONTH, THE
CONDEMNATION IS COMPLETE AND THE UNITED STATES MUST PAY COMPENSATION
FOR THE TEMPORARY POSSESSION.  UNITED STATES V. GENERAL MOTORS CORP.,
323 U.S. 373; UNITED STATES V. PEWEE COAL CO., SUPRA. 

THE POWER OF THE FEDERAL GOVERNMENT TO CONDEMN PROPERTY IS WELL
ESTABLISHED.  KOHL V. UNITED STATES, 91 U.S. 367.  IT CAN CONDEMN FOR
ANY PUBLIC PURPOSE; AND I HAVE NO DOUBT BUT THAT CONDEMNATION OF A
PLANT, FACTORY, OR INDUSTRY IN ORDER TO PROMOTE INDUSTRIAL PEACE WOULD
BE CONSTITUTIONAL.  BUT THERE IS A DUTY TO PAY FOR ALL PROPERTY TAKEN
BY THE GOVERNMENT.  THE COMMAND OF THE FIFTH AMENDMENT IS THAT NO
"PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION." 
THAT CONSTITUTIONAL REQUIREMENT HAS AN IMPORTANT BEARING ON THE PRESENT
CASE. 

THE PRESIDENT HAS NO POWER TO RAISE REVENUES.  THAT POWER IS IN THE
CONGRESS BY ARTICLE I, SECTION 8 OF THE CONSTITUTION.  THE PRESIDENT
MIGHT SEIZE AND THE CONGRESS BY SUBSEQUENT ACTION MIGHT RATIFY THE
SEIZURE.  (FN1)  BUT UNTIL AND UNLESS CONGRESS ACTED, NO CONDEMNATION
WOULD BE LAWFUL.  THE BRANCH OF GOVERNMENT THAT HAS THE POWER TO PAY
COMPENSATION FOR A SEIZURE IS THE ONLY ONE ABLE TO AUTHORIZE A SEIZURE
OR MAKE LAWFUL ONE THAT THE PRESIDENT HAS EFFECTED.  (FN2)  THAT SEEMS
TO ME TO BE THE NECESSARY RESULT OF THE CONDEMNATION PROVISION IN THE
FIFTH AMENDMENT.  IT SQUARES WITH THE THEORY OF CHECKS AND BALANCES
EXPOUNDED BY MR. JUSTICE BLACK IN THE OPINION OF THE COURT IN WHICH I
JOIN. 

IF WE SANCTIONED THE PRESENT EXERCISE OF POWER BY THE PRESIDENT, WE
WOULD BE EXPANDING ARTICLE II OF THE CONSTITUTION AND REWRITING IT TO
SUIT THE POLITICAL CONVENIENCES OF THE PRESENT EMERGENCY.  ARTICLE II
WHICH VESTS THE "EXECUTIVE POWER" IN THE PRESIDENT DEFINES THAT POWER
WITH PARTICULARITY.  ARTICLE II, SECTION 2 MAKES THE CHIEF EXECUTIVE
THE COMMANDER IN CHIEF OF THE ARMY AND NAVY.  BUT OUR HISTORY AND
TRADITION REBEL AT THE THOUGHT THAT THE GRANT OF MILITARY POWER CARRIES
WITH IT AUTHORITY OVER CIVILIAN AFFAIRS.  ARTICLE II, SECTION 3
PROVIDES THAT THE PRESIDENT SHALL "FROM TIME TO TIME GIVE TO THE
CONGRESS INFORMATION OF THE STATE OF THE UNION, AND RECOMMEND TO THEIR
CONSIDERATION SUCH MEASURES AS HE SHALL JUDGE NECESSARY AND
EXPEDIENT."  THE POWER TO RECOMMEND LEGISLATION, GRANTED TO THE
PRESIDENT, SERVES ONLY TO EMPHASIZE THAT IT IS HIS FUNCTION TO
RECOMMEND AND THAT IT IS THE FUNCTION OF THE CONGRESS TO LEGISLATE. 
ARTICLE II, SECTION 3 ALSO PROVIDES THAT THE PRESIDENT "SHALL TAKE CARE
THAT THE LAWS BE FAITHFULLY EXECUTED."  BUT, AS MR. JUSTICE BLACK AND
MR. JUSTICE FRANKFURTER POINT OUT, THE POWER TO EXECUTE THE LAWS STARTS
AND ENDS WITH THE LAWS CONGRESS HAS ENACTED. 

THE GREAT OFFICE OF PRESIDENT IS NOT A WEAK AND POWERLESS ONE.  THE
PRESIDENT REPRESENTS THE PEOPLE AND IS THEIR SPOKESMAN IN DOMESTIC AND
FOREIGN AFFAIRS.  THE OFFICE IS RESPECTED MORE THAN ANY OTHER IN THE
LAND.  IT GIVES A POSITION OF LEADERSHIP THAT IS UNIQUE.  THE POWER TO
FORMULATE POLICIES AND MOULD OPINION INHERES IN THE PRESIDENCY AND
CONDITIONS OUR NATIONAL LIFE.  THE IMPACT OF THE MAN AND THE PHILOSOPHY
HE REPRESENTS MAY AT TIMES BE THWARTED BY THE CONGRESS.  STALEMATES MAY
OCCUR WHEN EMERGENCIES MOUNT AND THE NATION SUFFERS FOR LACK OF
HARMONIOUS, RECIPROCAL ACTION BETWEEN THE WHITE HOUSE AND CAPITOL
HILL.  THAT IS A RISK INHERENT IN OUR SYSTEM OF SEPARATION OF POWERS. 
THE TRAGEDY OF SUCH STALEMATES MIGHT BE AVOIDED BY ALLOWING THE
PRESIDENT THE USE OF SOME LEGISLATIVE AUTHORITY.  THE FRAMERS WITH
MEMORIES OF THE TYRANNIES PRODUCED BY A BLENDING OF EXECUTIVE AND
LEGISLATIVE POWER REJECTED THAT POLITICAL ARRANGEMENT.  SOME FUTURE
GENERATION MAY, HOWEVER, DEEM IT SO URGENT THAT THE PRESIDENT HAVE
LEGISLATIVE AUTHORITY THAT THE CONSTITUTION WILL BE AMENDED.  WE COULD
NOT SANCTION THE SEIZURES AND CONDEMNATIONS OF THE STEEL PLANTS IN THIS
CASE WITHOUT READING ARTICLE II AS GIVING THE PRESIDENT NOT ONLY THE
POWER TO EXECUTE THE LAWS BUT TO MAKE SOME.  SUCH A STEP WOULD MOST
ASSUREDLY ALTER THE PATTERN OF THE CONSTITUTION. 

WE PAY A PRICE FOR OUR SYSTEM OF CHECKS AND BALANCES, FOR THE
DISTRIBUTION OF POWER AMONG THE THREE BRANCHES OF GOVERNMENT.  IT IS A
PRICE THAT TODAY MAY SEEM EXORBITANT TO MANY.  TODAY A KINDLY PRESIDENT
USES THE SEIZURE POWER TO EFFECT A WAGE INCREASE AND TO KEEP THE STEEL
FURNACES IN PRODUCTION.  YET TOMORROW ANOTHER PRESIDENT MIGHT USE THE
SAME POWER TO PREVENT A WAGE INCREASE, TO CURB TRADE-UNIONISTS, TO
REGIMENT LABOR AS OPPRESSIVELY AS INDUSTRY THINKS IT HAS BEEN
REGIMENTED BY THIS SEIZURE. 

FN1  WHAT A PRESIDENT MAY DO AS A MATTER OF EXPEDIENCY OR EXTREMITY
MAY NEVER REACH A DEFINITIVE CONSTITUTIONAL DECISION.  FOR EXAMPLE,
PRESIDENT LINCOLN SUSPENDED THE WRIT OF HABEAS CORPUS, CLAIMING THE
CONSTITUTIONAL RIGHT TO DO SO.  SEE EX PARTE MERRYMAN, 17 FED. CAS. NO.
9,487.  CONGRESS RATIFIED HIS ACTION BY THE ACT OF MARCH 3, 1863.  12
STAT. 755. 

FN2  MR. JUSTICE BRANDEIS, SPEAKING FOR THE COURT IN UNITED STATES V.
NORTH AMERICAN CO., 253 U.S. 330, 333, STATED THAT THE BASIS OF THE
GOVERNMENT'S LIABILITY FOR A TAKING OF PROPERTY WAS LEGISLATIVE
AUTHORITY, "IN ORDER THAT THE GOVERNMENT SHALL BE LIABLE IT MUST APPEAR
THAT THE OFFICER WHO HAS PHYSICALLY TAKEN POSSESSION OF THE PROPERTY
WAS DULY AUTHORIZED SO TO DO, EITHER DIRECTLY BY CONGRESS OR BY THE
OFFICIAL UPON WHOM CONGRESS CONFERRED THE POWER." 

THAT THEORY EXPLAINS CASES LIKE UNITED STATES V. CAUSBY, 328 U.S.
256, WHERE THE ACTS OF THE OFFICIALS RESULTING IN A TAKING WERE ACTS
AUTHORIZED BY THE CONGRESS, THOUGH THE CONGRESS HAD NOT TREATED THE
ACTS AS ONE OF APPROPRIATION OF PRIVATE PROPERTY. 

WARTIME SEIZURES BY THE MILITARY IN CONNECTION WITH MILITARY
OPERATIONS (CF. UNITED STATES V. RUSSELL, 13 WALL.  623) ARE ALSO IN A
DIFFERENT CATEGORY. 

MR. JUSTICE JACKSON, CONCURRING IN THE JUDGMENT AND OPINION OF THE
COURT. 

THAT COMPREHENSIVE AND UNDEFINED PRESIDENTIAL POWERS HOLD BOTH
PRACTICAL ADVANTAGES AND GRAVE DANGERS FOR THE COUNTRY WILL IMPRESS
ANYONE WHO HAS SERVED AS LEGAL ADVISER TO A PRESIDENT IN TIME OF
TRANSITION AND PUBLIC ANXIETY.  WHILE AN INTERVAL OF DETACHED
REFLECTION MAY TEMPER TEACHINGS OF THAT EXPERIENCE, THEY PROBABLY ARE A
MORE REALISTIC INFLUENCE ON MY VIEWS THAN THE CONVENTIONAL MATERIALS OF
JUDICIAL DECISION WHICH SEEM UNDULY TO ACCENTUATE DOCTRINE AND LEGAL
FICTION.  BUT AS WE APPROACH THE QUESTION OF PRESIDENTIAL POWER, WE
HALF OVERCOME MENTAL HAZARDS BY RECOGNIZING THEM.  THE OPINIONS OF
JUDGES, NO LESS THAN EXECUTIVES AND PUBLICISTS, OFTEN SUFFER THE
INFIRMITY OF CONFUSING THE ISSUE OF A POWER'S VALIDITY WITH THE CAUSE
IT IS INVOKED TO PROMOTE, OF CONFOUNDING THE PERMANENT EXECUTIVE OFFICE
WITH ITS TEMPORARY OCCUPANT.  THE TENDENCY IS STRONG TO EMPHASIZE
TRANSIENT RESULTS UPON POLICIES - SUCH AS WAGES OR STABILIZATION - AND
LOSE SIGHT OF ENDURING CONSEQUENCES UPON THE BALANCED POWER STRUCTURE
OF OUR REPUBLIC. 

A JUDGE, LIKE AN EXECUTIVE ADVISER, MAY BE SURPRISED AT THE POVERTY
OF REALLY USEFUL AND UNAMBIGUOUS AUTHORITY APPLICABLE TO CONCRETE
PROBLEMS OF EXECUTIVE POWER AS THEY ACTUALLY PRESENT THEMSELVES.  JUST
WHAT OUR FOREFATHERS DID ENVISION, OR WOULD HAVE ENVISIONED HAD THEY
FORESEEN MODERN CONDITIONS, MUST BE DIVINED FROM MATERIALS ALMOST AS
ENIGMATIC AS THE DREAMS JOSEPH WAS CALLED UPON TO INTERPRET FOR
PHARAOH.  A CENTURY AND A HALF OF PARTISAN DEBATE AND SCHOLARLY
SPECULATION YIELDS NO NET RESULT BUT ONLY SUPPLIES MORE OR LESS APT
QUOTATIONS FROM RESPECTED SOURCES ON EACH SIDE OF ANY QUESTION.  THEY
LARGELY CANCEL EACH OTHER.  (FN1)  AND COURT DECISIONS ARE INDECISIVE
BECAUSE OF THE JUDICIAL PRACTICE OF DEALING WITH THE LARGEST QUESTIONS
IN THE MOST NARROW WAY. 

THE ACTUAL ART OF GOVERNING UNDER OUR CONSTITUTION DOES NOT AND
CANNOT CONFORM TO JUDICIAL DEFINITIONS OF THE POWER OF ANY OF ITS
BRANCHES BASED ON ISOLATED CLAUSES OR EVEN SINGLE ARTICLES TORN FROM
CONTEXT.  WHILE THE CONSTITUTION DIFFUSES POWER THE BETTER TO SECURE
LIBERTY, IT ALSO CONTEMPLATES THAT PRACTICE WILL INTEGRATE THE
DISPERSED POWERS INTO A WORKABLE GOVERNMENT.  IT ENJOINS UPON ITS
BRANCHES SEPARATENESS BUT INTERDEPENDENCE, AUTONOMY BUT RECIPROCITY. 
PRESIDENTIAL POWERS ARE NOT FIXED BUT FLUCTUATE, DEPENDING UPON THEIR
DISJUNCTION OR CONJUNCTION WITH THOSE OF CONGRESS.  WE MAY WELL BEGIN
BY A SOMEWHAT OVER-SIMPLIFIED GROUPING OF PRACTICAL SITUATIONS IN WHICH
A PRESIDENT MAY DOUBT, OR OTHERS MAY CHALLENGE, HIS POWERS, AND BY
DISTINGUISHING ROUGHLY THE LEGAL CONSEQUENCES OF THIS FACTOR OF
RELATIVITY. 

1.  WHEN THE PRESIDENT ACTS PURSUANT TO AN EXPRESS OR IMPLIED
AUTHORIZATION OF CONGRESS, HIS AUTHORITY IS AT ITS MAXIMUM, FOR IT
INCLUDES ALL THAT HE POSSESSES IN HIS OWN RIGHT PLUS ALL THAT CONGRESS
CAN DELEGATE.  (FN2)  IN THESE CIRCUMSTANCES, AND IN THESE ONLY, MAY HE
BE SAID (FOR WHAT IT MAY BE WORTH) TO PERSONIFY THE FEDERAL
SOVEREIGNTY.  IF HIS ACT IS HELD UNCONSTITUTIONAL UNDER THESE
CIRCUMSTANCES, IT USUALLY MEANS THAT THE FEDERAL GOVERNMENT AS AN
UNDIVIDED WHOLE LACKS POWER.   A SEIZURE EXECUTED BY THE PRESIDENT
PURSUANT TO AN ACT OF CONGRESS WOULD BE SUPPORTED BY THE STRONGEST OF
PRESUMPTIONS AND THE WIDEST LATITUDE OF JUDICIAL INTERPRETATION, AND
THE BURDEN OF PERSUASION WOULD REST HEAVILY UPON ANY WHO MIGHT ATTACK
IT. 

2.  WHEN THE PRESIDENT ACTS IN ABSENCE OF EITHER A CONGRESSIONAL
GRANT OR DENIAL OF AUTHORITY, HE CAN ONLY RELY UPON HIS OWN INDEPENDENT
POWERS, BUT THERE IS A ZONE OF TWILIGHT IN WHICH HE AND CONGRESS MAY
HAVE CONCURRENT AUTHORITY, OR IN WHICH ITS DISTRIBUTION IS UNCERTAIN. 
THEREFORE, CONGRESSIONAL INERTIA, INDIFFERENCE OR QUIESCENCE MAY
SOMETIMES, AT LEAST AS A PRACTICAL MATTER, ENABLE, IF NOT INVITE,
MEASURES ON INDEPENDENT PRESIDENTIAL RESPONSIBILITY.  IN THIS AREA, ANY
ACTUAL TEST OF POWER IS LIKELY TO DEPEND ON THE IMPERATIVES OF EVENTS
AND CONTEMPORARY IMPONDERABLES RATHER THAN ON ABSTRACT THEORIES OF
LAW.  (FN3) 

3.  WHEN THE PRESIDENT TAKES MEASURES INCOMPATIBLE WITH THE EXPRESSED
OR IMPLIED WILL OF CONGRESS, HIS POWER IS AT ITS LOWEST EBB, FOR THEN
HE CAN RELY ONLY UPON HIS OWN CONSTITUTIONAL POWERS MINUS ANY
CONSTITUTIONAL POWERS OF CONGRESS OVER THE MATTER.  COURTS CAN SUSTAIN
EXCLUSIVE PRESIDENTIAL CONTROL IN SUCH A CASE ONLY BY DISABLING THE
CONGRESS FROM ACTING UPON THE SUBJECT.  (FN4) PRESIDENTIAL CLAIM TO A
POWER AT ONCE SO CONCLUSIVE AND PRECLUSIVE MUST BE SCRUTINIZED WITH
CAUTION, FOR WHAT IS AT STAKE IS THE EQUILIBRIUM ESTABLISHED BY OUR
CONSTITUTIONAL SYSTEM. 

INTO WHICH OF THESE CLASSIFICATIONS DOES THIS EXECUTIVE SEIZURE OF
THE STEEL INDUSTRY FIT?  IT IS ELIMINATED FROM THE FIRST BY ADMISSION,
FOR IT IS CONCEDED THAT NO CONGRESSIONAL AUTHORIZATION EXISTS FOR THIS
SEIZURE.  THAT TAKES AWAY ALSO THE SUPPORT OF THE MANY PRECEDENTS AND
DECLARATIONS WHICH WERE MADE IN RELATION, AND MUST BE CONFINED, TO THIS
CATEGORY.  (FN5) 

CAN IT THEN BE DEFENDED UNDER FLEXIBLE TESTS AVAILABLE TO THE SECOND
CATEGORY?  IT SEEMS CLEARLY ELIMINATED FROM THAT CLASS BECAUSE CONGRESS
HAS NOT LEFT SEIZURE OF PRIVATE PROPERTY AN OPEN FIELD BUT HAS COVERED
IT BY THREE STATUTORY POLICIES INCONSISTENT WITH THIS SEIZURE.  IN
CASES WHERE THE PURPOSE IS TO SUPPLY NEEDS OF THE GOVERNMENT ITSELF,
TWO COURSES ARE PROVIDED:  ONE, SEIZURE OF A PLANT WHICH FAILS TO
COMPLY WITH OBLIGATORY ORDERS PLACED BY THE GOVERNMENT; (FN6) ANOTHER,
CONDEMNATION OF FACILITIES, INCLUDING TEMPORARY USE UNDER THE POWER OF
EMINENT DOMAIN.  (FN7)  THE THIRD IS APPLICABLE WHERE IT IS THE GENERAL
ECONOMY OF THE COUNTRY THAT IS TO BE PROTECTED RATHER THAN EXCLUSIVE
GOVERNMENTAL INTERESTS.  (FN8)  NONE OF THESE WERE INVOKED.  IN
CHOOSING A DIFFERENT AND INCONSISTENT WAY OF HIS OWN, THE PRESIDENT
CANNOT CLAIM THAT IT IS NECESSITATED OR INVITED BY FAILURE OF CONGRESS
TO LEGISLATE UPON THE OCCASIONS, GROUNDS AND METHODS FOR SEIZURE OF
INDUSTRIAL PROPERTIES. 

THIS LEAVES THE CURRENT SEIZURE TO BE JUSTIFIED ONLY BY THE SEVERE
TESTS UNDER THE THIRD GROUPING, WHERE IT CAN BE SUPPORTED ONLY BY ANY
REMAINDER OF EXECUTIVE POWER AFTER SUBTRACTION OF SUCH POWERS AS
CONGRESS MAY HAVE OVER THE SUBJECT.  IN SHORT, WE CAN SUSTAIN THE
PRESIDENT ONLY BY HOLDING THAT SEIZURE OF SUCH STRIKE-BOUND INDUSTRIES
IS WITHIN HIS DOMAIN AND BEYOND CONTROL BY CONGRESS.  THUS, THIS
COURT'S FIRST REVIEW OF SUCH SEIZURES OCCURS UNDER CIRCUMSTANCES WHICH
LEAVE PRESIDENTIAL POWER MOST VULNERABLE TO ATTACK AND IN THE LEAST
FAVORABLE OF POSSIBLE CONSTITUTIONAL POSTURES.    I DID NOT SUPPOSE,
AND I AM NOT PERSUADED, THAT HISTORY LEAVES IT OPEN TO QUESTION, AT
LEAST IN THE COURTS, THAT THE EXECUTIVE BRANCH, LIKE THE FEDERAL
GOVERNMENT AS A WHOLE, POSSESSES ONLY DELEGATED POWERS.  THE PURPOSE OF
THE CONSTITUTION WAS NOT ONLY TO GRANT POWER, BUT TO KEEP IT FROM
GETTING OUT OF HAND.  HOWEVER, BECAUSE THE PRESIDENT DOES NOT ENJOY
UNMENTIONED POWERS DOES NOT MEAN THAT THE MENTIONED ONES SHOULD BE
NARROWED BY A NIGGARDLY CONSTRUCTION.  SOME CLAUSES COULD BE MADE
ALMOST UNWORKABLE, AS WELL AS IMMUTABLE, BY REFUSAL TO INDULGE SOME
LATITUDE OF INTERPRETATION FOR CHANGING TIMES.  I HAVE HERETOFORE, AND
DO NOW, GIVE TO THE ENUMERATED POWERS THE SCOPE AND ELASTICITY AFFORDED
BY WHAT SEEM TO BE REASONABLE, PRACTICAL IMPLICATIONS INSTEAD OF THE
RIGIDITY DICTATED BY A DOCTRINAIRE TEXTUALISM. 

THE SOLICITOR GENERAL SEEKS THE POWER OF SEIZURE IN THREE CLAUSES OF
THE EXECUTIVE ARTICLE, THE FIRST READING, "THE EXECUTIVE POWER SHALL BE
VESTED IN A PRESIDENT OF THE UNITED STATES OF AMERICA."  LEST I BE
THOUGHT TO EXAGGERATE, I QUOTE THE INTERPRETATION WHICH HIS BRIEF PUTS
UPON IT:  "IN OUR VIEW, THIS CLAUSE CONSTITUTES A GRANT OF ALL THE
EXECUTIVE POWERS OF WHICH THE GOVERNMENT IS CAPABLE."  IF THAT BE TRUE,
IT IS DIFFICULT TO SEE WHY THE FOREFATHERS BOTHERED TO ADD SEVERAL
SPECIFIC ITEMS, INCLUDING SOME TRIFLING ONES.  (FN9) 

THE EXAMPLE OF SUCH UNLIMITED EXECUTIVE POWER THAT MUST HAVE MOST
IMPRESSED THE FOREFATHERS WAS THE PREROGATIVE EXERCISED BY GEORGE III,
AND THE DESCRIPTION OF ITS EVILS IN THE DECLARATION OF INDEPENDENCE
LEADS ME TO DOUBT THAT THEY WERE CREATING THEIR NEW EXECUTIVE IN HIS
IMAGE.  CONTINENTAL EUROPEAN EXAMPLES WERE NO MORE APPEALING.  AND IF
WE SEEK INSTRUCTION FROM OUR OWN TIMES, WE CAN MATCH IT ONLY FROM THE
EXECUTIVE POWERS IN THOSE GOVERNMENTS WE DISPARAGINGLY DESCRIBE AS
TOTALITARIAN.  I CANNOT ACCEPT THE VIEW THAT THIS CLAUSE IS A GRANT IN
BULK OF ALL CONCEIVABLE EXECUTIVE POWER BUT REGARD IT AS AN ALLOCATION
TO THE PRESIDENTIAL OFFICE OF THE GENERIC POWERS THEREAFTER STATED. 

THE CLAUSE ON WHICH THE GOVERNMENT NEXT RELIES IS THAT "THE PRESIDENT
SHALL BE COMMANDER IN CHIEF OF THE ARMY AND NAVY OF THE UNITED STATES
...  ."  THESE CRYPTIC WORDS HAVE GIVEN RISE TO SOME OF THE MOST
PERSISTENT CONTROVERSIES IN OUR CONSTITUTIONAL HISTORY.  OF COURSE,
THEY IMPLY SOMETHING MORE THAN AN EMPTY TITLE.  BUT JUST WHAT AUTHORITY
GOES WITH THE NAME HAS PLAGUED PRESIDENTIAL ADVISERS WHO WOULD NOT
WAIVE OR NARROW IT BY NONASSERTION YET CANNOT SAY WHERE IT BEGINS OR
ENDS.  IT UNDOUBTEDLY PUTS THE NATION'S ARMED FORCES UNDER PRESIDENTIAL
COMMAND.  HENCE, THIS LOOSE APPELLATION IS SOMETIMES ADVANCED AS
SUPPORT FOR ANY PRESIDENTIAL ACTION, INTERNAL OR EXTERNAL, INVOLVING
USE OF FORCE, THE IDEA BEING THAT IT VESTS POWER TO DO ANYTHING,
ANYWHERE, THAT CAN BE DONE WITH AN ARMY OR NAVY. 

THAT SEEMS TO BE THE LOGIC OF AN ARGUMENT TENDERED AT OUR BAR - THAT
THE PRESIDENT HAVING, ON HIS OWN RESPONSIBILITY, SENT AMERICAN TROOPS
ABROAD DERIVES FROM THAT ACT "AFFIRMATIVE POWER" TO SEIZE THE MEANS OF
PRODUCING A SUPPLY OF STEEL FOR THEM.  TO QUOTE, "PERHAPS THE MOST
FORCEFUL ILLUSTRATION OF THE SCOPE OF PRESIDENTIAL POWER IN THIS
CONNECTION IS THE FACT THAT AMERICAN TROOPS IN KOREA, WHOSE SAFETY AND
EFFECTIVENESS ARE SO DIRECTLY INVOLVED HERE, WERE SENT TO THE FIELD BY
AN EXERCISE OF THE PRESIDENT'S CONSTITUTIONAL POWERS."  THUS, IT IS
SAID, HE HAS INVESTED HIMSELF WITH "WAR POWERS." 

I CANNOT FORESEE ALL THAT IT MIGHT ENTAIL IF THE COURT SHOULD INDORSE
THIS ARGUMENT.  NOTHING IN OUR CONSTITUTION IS PLAINER THAN THAT
DECLARATION OF A WAR IS ENTRUSTED ONLY TO CONGRESS.  OF COURSE, A STATE
OF WAR MAY IN FACT EXIST WITHOUT A FORMAL DECLARATION.  BUT NO DOCTRINE
THAT THE COURT COULD PROMULGATE WOULD SEEM TO ME MORE SINISTER AND
ALARMING THAN THAT A PRESIDENT WHOSE CONDUCT OF FOREIGN AFFAIRS IS SO
LARGELY UNCONTROLLED, AND OFTEN EVEN IS UNKNOWN, CAN VASTLY ENLARGE HIS
MASTERY OVER THE INTERNAL AFFAIRS OF THE COUNTRY BY HIS OWN COMMITMENT
OF THE NATION'S ARMED FORCES TO SOME FOREIGN VENTURE.  (FN10)  I DO
NOT, HOWEVER, FIND IT NECESSARY OR APPROPRIATE TO CONSIDER THE LEGAL
STATUS OF THE KOREAN ENTERPRISE TO DISCOUNTENANCE ARGUMENT BASED ON
IT. 

ASSUMING THAT WE ARE IN A WAR DE FACTO, WHETHER IT IS OR IS NOT A WAR
DE JURE, DOES THAT EMPOWER THE COMMANDER IN CHIEF TO SEIZE INDUSTRIES
HE THINKS NECESSARY TO SUPPLY OUR ARMY?  THE CONSTITUTION EXPRESSLY
PLACES IN CONGRESS POWER "TO RAISE AND SUPPORT ARMIES" AND "TO PROVIDE
AND MAINTAIN A NAVY."  THIS CERTAINLY LAYS UPON CONGRESS PRIMARY
RESPONSIBILITY FOR SUPPLYING THE ARMED FORCES.  CONGRESS ALONE CONTROLS
THE RAISING OF REVENUES AND THEIR APPROPRIATION AND MAY DETERMINE IN
WHAT MANNER AND BY WHAT MEANS THEY SHALL BE SPENT FOR MILITARY AND
NAVAL PROCUREMENT.  I SUPPOSE NO ONE WOULD DOUBT THAT CONGRESS CAN TAKE
OVER WAR SUPPLY AS A GOVERNMENT ENTERPRISE.  ON THE OTHER HAND, IF
CONGRESS SEES FIT TO RELY ON FREE PRIVATE ENTERPRISE COLLECTIVELY
BARGAINING WITH FREE LABOR FOR SUPPORT AND MAINTENANCE OF OUR ARMED
FORCES, CAN THE EXECUTIVE, BECAUSE OF LAWFUL DISAGREEMENTS INCIDENTAL
TO THAT PROCESS, SEIZE THE FACILITY FOR OPERATION UPON GOVERNMENT
IMPOSED TERMS? 

THERE ARE INDICATIONS THAT THE CONSTITUTION DID NOT CONTEMPLATE THAT
THE TITLE COMMANDER IN CHIEF OF THE ARMY AND NAVY WILL CONSTITUTE HIM
ALSO COMMANDER IN CHIEF OF THE COUNTRY, ITS INDUSTRIES AND ITS
INHABITANTS.  HE HAS NO MONOPOLY OF "WAR POWERS," WHATEVER THEY ARE. 
WHILE CONGRESS CANNOT DEPRIVE THE PRESIDENT OF THE COMMAND OF THE ARMY
AND NAVY, ONLY CONGRESS CAN PROVIDE HIM AN ARMY OR NAVY TO COMMAND.  IT
IS ALSO EMPOWERED TO MAKE RULES FOR THE "GOVERNMENT AND REGULATION OF
LAND AND NAVAL FORCES," BY WHICH IT MAY TO SOME UNKNOWN EXTENT IMPINGE
UPON EVEN COMMAND FUNCTIONS. 

THAT MILITARY POWERS OF THE COMMANDER IN CHIEF WERE NOT TO SUPERSEDE
REPRESENTATIVE GOVERNMENT OF INTERNAL AFFAIRS SEEMS OBVIOUS FROM THE
CONSTITUTION AND FROM ELEMENTARY AMERICAN HISTORY.  TIME OUT OF MIND,
AND EVEN NOW IN MANY PARTS OF THE WORLD, A MILITARY COMMANDER CAN SEIZE
PRIVATE HOUSING TO SHELTER HIS TROOPS.  NO SO, HOWEVER, IN THE UNITED
STATES, FOR THE THIRD AMENDMENT SAYS, "NO SOLDIER SHALL, IN TIME OF
PEACE BE QUARTERED IN ANY HOUSE, WITHOUT THE CONSENT OF THE OWNER, NOR
IN TIME OF WAR, BUT IN A MANNER TO BE PRESCRIBED BY LAW."  THUS, EVEN
IN WAR TIME, HIS SEIZURE OF NEEDED MILITARY HOUSING MUST BE AUTHORIZED
BY CONGRESS.  IT ALSO WAS EXPRESSLY LEFT TO CONGRESS TO "PROVIDE FOR
CALLING FORTH THE MILITIA TO EXECUTE THE LAWS OF THE UNION, SUPPRESS
INSURRECTIONS AND REPEL INVASIONS  ...  ."  (FN11)  SUCH A LIMITATION
ON THE COMMAND POWER, WRITTEN AT A TIME WHEN THE MILITIA RATHER THAN A
STANDING ARMY WAS CONTEMPLATED AS THE MILITARY WEAPON OF THE REPUBLIC,
UNDERSCORES THE CONSTITUTION'S POLICY THAT CONGRESS, NOT THE EXECUTIVE,
SHOULD CONTROL UTILIZATION OF THE WAR POWER AS AN INSTRUMENT OF
DOMESTIC POLICY.  CONGRESS, FULFILLING THAT FUNCTION, HAS AUTHORIZED
THE PRESIDENT TO USE THE ARMY TO ENFORCE CERTAIN CIVIL RIGHTS.  (FN12)
ON THE OTHER HAND, CONGRESS HAS FORBIDDEN HIM TO USE THE ARMY FOR THE
PURPOSE OF EXECUTING GENERAL LAWS EXCEPT WHEN EXPRESSLY AUTHORIZED BY
THE CONSTITUTION OR BY ACT OF CONGRESS.  (FN13) 

WHILE BROAD CLAIMS UNDER THIS RUBRIC OFTEN HAVE BEEN MADE, ADVICE TO
THE PRESIDENT IN SPECIFIC MATTERS USUALLY HAS CARRIED OVERTONES THAT
POWERS, EVEN UNDER THIS HEAD, ARE MEASURED BY THE COMMAND FUNCTIONS
USUAL TO THE TOPMOST OFFICER OF THE ARMY AND NAVY.  EVEN THEN, HEED HAS
BEEN TAKEN OF ANY EFFORTS OF CONGRESS TO NEGATIVE HIS AUTHORITY. 
(FN14) 

WE SHOULD NOT USE THIS OCCASION TO CIRCUMSCRIBE, MUCH LESS TO
CONTRACT, THE LAWFUL ROLE OF THE PRESIDENT AS COMMANDER IN CHIEF.  I
SHOULD INDULGE THE WIDEST LATITUDE OF INTERPRETATION TO SUSTAIN HIS
EXCLUSIVE FUNCTION TO COMMAND THE INSTRUMENTS OF NATIONAL FORCE, AT
LEAST WHEN TURNED AGAINST THE OUTSIDE WORLD FOR THE SECURITY OF OUR
SOCIETY.  BUT, WHEN IT IS TURNED INWARD, NOT BECAUSE OF REBELLION BUT
BECAUSE OF A LAWFUL ECONOMIC STRUGGLE BETWEEN INDUSTRY AND LABOR, IT
SHOULD HAVE NO SUCH INDULGENCE.  HIS COMMAND POWER IS NOT SUCH AN
ABSOLUTE AS MIGHT BE IMPLIED FROM THAT OFFICE IN A MILITARISTIC SYSTEM
BUT IS SUBJECT TO LIMITATIONS CONSISTENT WITH A CONSTITUTIONAL REPUBLIC
WHOSE LAW AND POLICY-MAKING BRANCH IS A REPRESENTATIVE CONGRESS.  THE
PURPOSE OF LODGING DUAL TITLES IN ONE MAN WAS TO INSURE THAT THE
CIVILIAN WOULD CONTROL THE MILITARY, NOT TO ENABLE THE MILITARY TO
SUBORDINATE THE PRESIDENTIAL OFFICE.  NO PENANCE WOULD EVER EXPIATE THE
SIN AGAINST FREE GOVERNMENT OF HOLDING THAT A PRESIDENT CAN ESCAPE
CONTROL OF EXECUTIVE POWERS BY LAW THROUGH ASSUMING HIS MILITARY ROLE. 
WHAT THE POWER OF COMMAND MAY INCLUDE I DO NOT TRY TO ENVISION, BUT I
THINK IT IS NOT A MILITARY PREROGATIVE, WITHOUT SUPPORT OF LAW, TO
SEIZE PERSONS OR PROPERTY BECAUSE THEY ARE IMPORTANT OR EVEN ESSENTIAL
FOR THE MILITARY AND NAVAL ESTABLISHMENT. 

THE THIRD CLAUSE IN WHICH THE SOLICITOR GENERAL FINDS SEIZURE POWERS
IS THAT "HE SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED  ...
."  (FN15)  THAT AUTHORITY MUST BE MATCHED AGAINST WORDS OF THE FIFTH
AMENDMENT THAT "NO PERSON SHALL BE  ...  DEPRIVED OF LIFE, LIBERTY OR
PROPERTY, WITHOUT DUE PROCESS OF LAW  ...  ."  ONE GIVES A GOVERNMENTAL
AUTHORITY THAT REACHES SO FAR AS THERE IS LAW, THE OTHER GIVES A
PRIVATE RIGHT THAT AUTHORITY SHALL GO NO FARTHER.  THESE SIGNIFY ABOUT
ALL THERE IS OF THE PRINCIPLE THAT OURS IS A GOVERNMENT OF LAWS, NOT OF
MEN, AND THAT WE SUBMIT OURSELVES TO RULERS ONLY IF UNDER RULES. 

THE SOLICITOR GENERAL LASTLY GROUNDS SUPPORT OF THE SEIZURE UPON
NEBULOUS, INHERENT POWERS NEVER EXPRESSLY GRANTED BUT SAID TO HAVE
ACCRUED TO THE OFFICE FROM THE CUSTOMS AND CLAIMS OF PRECEDING
ADMINISTRATIONS.  THE PLEA IS FOR A RESULTING POWER TO DEAL WITH A
CRISIS OR AN EMERGENCY ACCORDING TO THE NECESSITIES OF THE CASE, THE
UNARTICULATED ASSUMPTION BEING THAT NECESSITY KNOWS NO LAW. 

LOOSE AND IRRESPONSIBLE USE OF ADJECTIVES COLORS ALL NONLEGAL AND
MUCH LEGAL DISCUSSION OF PRESIDENTIAL POWERS.  "INHERENT" POWERS,
"IMPLIED" POWERS, "INCIDENTAL" POWERS, "PLENARY" POWERS, "WAR" POWERS
AND "EMERGENCY" POWERS ARE USED, OFTEN INTERCHANGEABLY AND WITHOUT
FIXED OR ASCERTAINABLE MEANINGS. 

THE VAGUENESS AND GENERALITY OF THE CLAUSES THAT SET FORTH
PRESIDENTIAL POWERS AFFORD A PLAUSIBLE BASIS FOR PRESSURES WITHIN AND
WITHOUT AN ADMINISTRATION FOR PRESIDENTIAL ACTION BEYOND THAT SUPPORTED
BY THOSE WHOSE RESPONSIBILITY IT IS TO DEFEND HIS ACTIONS IN COURT. 
THE CLAIM OF INHERENT AND UNRESTRICTED PRESIDENTIAL POWERS HAS LONG
BEEN A PERSUASIVE DIALECTICAL WEAPON IN POLITICAL CONTROVERSY.  WHILE
IT IS NOT SURPRISING THAT COUNSEL SHOULD GRASP SUPPORT FROM SUCH
UNADJUDICATED CLAIMS OF POWER, A JUDGE CANNOT ACCEPT SELF-SERVING PRESS
STATEMENTS OF THE ATTORNEY FOR ONE OF THE INTERESTED PARTIES AS
AUTHORITY IN ANSWERING A CONSTITUTIONAL QUESTION, EVEN IF THE ADVOCATE
WAS HIMSELF.  BUT PRUDENCE HAS COUNSELED THAT ACTUAL RELIANCE ON SUCH
NEBULOUS CLAIMS STOP SHORT OF PROVOKING A JUDICIAL TEST.  (FN16) 

THE SOLICITOR GENERAL, ACKNOWLEDGING THAT CONGRESS HAS NEVER
AUTHORIZED THE SEIZURE HERE, SAYS PRACTICE OF PRIOR PRESIDENTS HAS
AUTHORIZED IT.  HE SEEKS COLOR OF LEGALITY FROM CLAIMED EXECUTIVE
PRECEDENTS, CHIEF OF WHICH IS PRESIDENT ROOSEVELT'S SEIZURE ON JUNE 9,
1941, OF THE CALIFORNIA PLANT OF THE NORTH AMERICAN AVIATION COMPANY. 
ITS SUPERFICIAL SIMILARITIES WITH THE PRESENT CASE, UPON ANALYSIS,
YIELD TO DISTINCTIONS SO DECISIVE THAT IT CANNOT BE REGARDED AS EVEN A
PRECEDENT, MUCH LESS AN AUTHORITY FOR THE PRESENT SEIZURE.  (FN17) 

THE APPEAL, HOWEVER, THAT WE DECLARE THE EXISTENCE OF INHERENT POWERS
EX NECESSITATE TO MEET AN EMERGENCY ASKS US TO DO WHAT MANY THINK WOULD
BE WISE, ALTHOUGH IT IS SOMETHING THE FOREFATHERS OMITTED.  THEY KNEW
WHAT EMERGENCIES WERE, KNEW THE PRESSURES THEY ENGENDER FOR
AUTHORITATIVE ACTION, KNEW, TOO, HOW THEY AFFORD A READY PRETEXT FOR
USURPATION.  WE MAY ALSO SUSPECT THAT THEY SUSPECTED THAT EMERGENCY
POWERS WOULD TEND TO KINDLE EMERGENCIES.  ASIDE FROM SUSPENSION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN TIME OF REBELLION OR
INVASION, WHEN THE PUBLIC SAFETY MAY REQUIRE IT, (FN18) THEY MADE NO
EXPRESS PROVISION FOR EXERCISE OF EXTRAORDINARY AUTHORITY BECAUSE OF A
CRISIS.  (FN19)  I DO NOT THINK WE RIGHTFULLY MAY SO AMEND THEIR WORK,
AND, IF WE COULD, I AM NOT CONVINCED IT WOULD BE WISE TO DO SO,
ALTHOUGH MANY MODERN NATIONS HAVE FORTHRIGHTLY RECOGNIZED THAT WAR AND
ECONOMIC CRISES MAY UPSET THE NORMAL BALANCE BETWEEN LIBERTY AND
AUTHORITY.  THEIR EXPERIENCE WITH EMERGENCY POWERS MAY NOT BE
IRRELEVANT TO THE ARGUMENT HERE THAT WE SHOULD SAY THAT THE EXECUTIVE,
OF HIS OWN VOLITION, CAN INVEST HIMSELF WITH UNDEFINED EMERGENCY
POWERS. 

GERMANY, AFTER THE FIRST WORLD WAR, FRAMED THE WEIMAR CONSTITUTION,
DESIGNED TO SECURE HER LIBERTIES IN THE WESTERN TRADITION.  HOWEVER,
THE PRESIDENT OF THE REPUBLIC, WITHOUT CONCURRENCE OF THE REICHSTAG,
WAS EMPOWERED TEMPORARILY TO SUSPEND ANY OR ALL INDIVIDUAL RIGHTS IF
PUBLIC SAFETY AND ORDER WERE SERIOUSLY DISTURBED OR ENDANGERED.  THIS
PROVED A TEMPTATION TO EVERY GOVERNMENT, WHATEVER ITS SHADE OF OPINION,
AND IN 13 YEARS SUSPENSION OF RIGHTS WAS INVOKED ON MORE THAN 250
OCCASIONS.  FINALLY, HITLER PERSUADED PRESIDENT VON HINDENBERG TO
SUSPEND ALL SUCH RIGHTS, AND THEY WERE NEVER RESTORED.  (FN20) 

THE FRENCH REPUBLIC PROVIDED FOR A VERY DIFFERENT KIND OF EMERGENCY
GOVERNMENT KNOWN AS THE "STATE OF SIEGE."  IT DIFFERED FROM THE GERMAN
EMERGENCY DICTATORSHIP, PARTICULARLY IN THAT EMERGENCY POWERS COULD NOT
BE ASSUMED AT WILL BY THE EXECUTIVE BUT COULD ONLY BE GRANTED AS A
PARLIAMENTARY MEASURE.  AND IT DID NOT, AS IN GERMANY, RESULT IN A
SUSPENSION OR ABROGATION OF LAW BUT WAS A LEGAL INSTITUTION GOVERNED BY
SPECIAL LEGAL RULES AND TERMINABLE BY PARLIAMENTARY AUTHORITY.  (FN21) 
GREAT BRITAIN ALSO HAS FOUGHT BOTH WORLD WARS UNDER A SORT OF
TEMPORARY DICTATORSHIP CREATED BY LEGISLATION.  (FN22)  AS PARLIAMENT
IS NOT BOUND BY WRITTEN CONSTITUTIONAL LIMITATIONS, IT ESTABLISHED A
CRISIS GOVERNMENT SIMPLY BY DELEGATION TO ITS MINISTERS OF A LARGER
MEASURE THAN USUAL OF ITS OWN UNLIMITED POWER, WHICH IS EXERCISED UNDER
ITS SUPERVISION BY MINISTERS WHOM IT MAY DISMISS.  THIS HAS BEEN CALLED
THE "HIGH-WATER MARK IN THE VOLUNTARY SURRENDER OF LIBERTY," BUT, AS
CHURCHILL PUT IT, "PARLIAMENT STANDS CUSTODIAN OF THESE SURRENDERED
LIBERTIES, AND ITS MOST SACRED DUTY WILL BE TO RESTORE THEM IN THEIR
FULLNESS WHEN VICTORY HAS CROWNED OUR EXERTIONS AND OUR PERSEVERANCE." 
(FN23)  THUS, PARLIAMENTARY CONTROL MADE EMERGENCY POWERS COMPATIBLE
WITH FREEDOM. 

THIS CONTEMPORARY FOREIGN EXPERIENCE MAY BE INCONCLUSIVE AS TO THE
WISDOM OF LODGING EMERGENCY POWERS SOMEWHERE IN A MODERN GOVERNMENT. 
BUT IT SUGGESTS THAT EMERGENCY POWERS ARE CONSISTENT WITH FREE
GOVERNMENT ONLY WHEN THEIR CONTROL IS LODGED ELSEWHERE THAN IN THE
EXECUTIVE WHO EXERCISES THEM.  THAT IS THE SAFEGUARD THAT WOULD BE
NULLIFIED BY OUR ADOPTION OF THE "INHERENT POWERS" FORMULA.  NOTHING IN
MY EXPERIENCE CONVINCES ME THAT SUCH RISKS ARE WARRANTED BY ANY REAL
NECESSITY, ALTHOUGH SUCH POWERS WOULD, OF COURSE, BE AN EXECUTIVE
CONVENIENCE. 

IN THE PRACTICAL WORKING OF OUR GOVERNMENT WE ALREADY HAVE EVOLVED A
TECHNIQUE WITHIN THE FRAMEWORK OF THE CONSTITUTION BY WHICH NORMAL
EXECUTIVE POWERS MAY BE CONSIDERABLY EXPANDED TO MEET AN EMERGENCY. 
CONGRESS MAY AND HAS GRANTED EXTRAORDINARY AUTHORITIES WHICH LIE
DORMANT IN NORMAL TIMES BUT MAY BE CALLED INTO PLAY BY THE EXECUTIVE IN
WAR OR UPON PROCLAMATION OF A NATIONAL EMERGENCY.  IN 1939, UPON
CONGRESSIONAL REQUEST, THE ATTORNEY GENERAL LISTED NINETY-NINE SUCH
SEPARATE STATUTORY GRANTS BY CONGRESS OF EMERGENCY OR WARTIME EXECUTIVE
POWERS.  (FN24)  THEY WERE INVOKED FROM TIME TO TIME AS NEED APPEARED. 
UNDER THIS PROCEDURE WE RETAIN GOVERNMENT BY LAW - SPECIAL, TEMPORARY
LAW, PERHAPS, BUT LAW NONETHELESS.  THE PUBLIC MAY KNOW THE EXTENT AND
LIMITATIONS OF THE POWERS THAT CAN BE ASSERTED, AND PERSONS AFFECTED
MAY BE INFORMED FROM THE STATUTE OF THEIR RIGHTS AND DUTIES. 

IN VIEW OF THE EASE, EXPEDITION AND SAFETY WITH WHICH CONGRESS CAN
GRANT AND HAS GRANTED LARGE EMERGENCY POWERS, CERTAINLY AMPLE TO
EMBRACE THIS CRISIS, I AM QUITE UNIMPRESSED WITH THE ARGUMENT THAT WE
SHOULD AFFIRM POSSESSION OF THEM WITHOUT STATUTE.  SUCH POWER EITHER
HAS NO BEGINNING OR IT HAS NO END.  IF IT EXISTS, IT NEED SUBMIT TO NO
LEGAL RESTRAINT.  I AM NOT ALARMED THAT IT WOULD PLUNGE US STRAIGHTWAY
INTO DICTATORSHIP, BUT IT IS AT LEAST A STEP IN THAT WRONG DIRECTION. 

AS TO WHETHER THERE IS IMPERATIVE NECESSITY FOR SUCH POWERS, IT IS
RELEVANT TO NOTE THE GAP THAT EXISTS BETWEEN THE PRESIDENT'S PAPER
POWERS AND HIS REAL POWERS.  THE CONSTITUTION DOES NOT DISCLOSE THE
MEASURE OF THE ACTUAL CONTROLS WIELDED BY THE MODERN PRESIDENTIAL
OFFICE.  THAT INSTRUMENT MUST BE UNDERSTOOD AS AN EIGHTEENTH-CENTURY
SKETCH OF A GOVERNMENT HOPED FOR, NOT AS A BLUEPRINT OF THE GOVERNMENT
THAT IS.  VAST ACCRETIONS OF FEDERAL POWER, ERODED FROM THAT RESERVED
BY THE STATES, HAVE MAGNIFIED THE SCOPE OF PRESIDENTIAL ACTIVITY. 
SUBTLE SHIFTS TAKE PLACE IN THE CENTERS OF REAL POWER THAT DO NOT SHOW
ON THE FACE OF THE CONSTITUTION. 

EXECUTIVE POWER HAS THE ADVANTAGE OF CONCENTRATION IN A SINGLE HEAD
IN WHOSE CHOICE THE WHOLE NATION HAS A PART, MAKING HIM THE FOCUS OF
PUBLIC HOPES AND EXPECTATIONS.  IN DRAMA, MAGNITUDE AND FINALITY HIS
DECISIONS SO FAR OVERSHADOW ANY OTHERS THAT ALMOST ALONE HE FILLS THE
PUBLIC EYE AND EAR.  NO OTHER PERSONALITY IN PUBLIC LIFE CAN BEGIN TO
COMPETE WITH HIM IN ACCESS TO THE PUBLIC MIND THROUGH MODERN METHODS OF
COMMUNICATIONS.  BY HIS PRESTIGE AS HEAD OF STATE AND HIS INFLUENCE
UPON PUBLIC OPINION HE EXERTS A LEVERAGE UPON THOSE WHO ARE SUPPOSED TO
CHECK AND BALANCE HIS POWER WHICH OFTEN CANCELS THEIR EFFECTIVENESS. 

MOREOVER, RISE OF THE PARTY SYSTEM HAS MADE A SIGNIFICANT
EXTRACONSTITUTIONAL SUPPLEMENT TO REAL EXECUTIVE POWER.  NO APPRAISAL
OF HIS NECESSITIES IS REALISTIC WHICH OVERLOOKS THAT HE HEADS A
POLITICAL SYSTEM AS WELL AS A LEGAL SYSTEM.  PARTY LOYALTIES AND
INTERESTS, SOMETIMES MORE BINDING THAN LAW, EXTEND HIS EFFECTIVE
CONTROL INTO BRANCHES OF GOVERNMENT OTHER THAN HIS OWN AND HE OFTEN MAY
WIN, AS A POLITICAL LEADER, WHAT HE CANNOT COMMAND UNDER THE
CONSTITUTION.  INDEED, WOODROW WILSON, COMMENTING ON THE PRESIDENT AS
LEADER BOTH OF HIS PARTY AND OF THE NATION, OBSERVED, "IF HE RIGHTLY
INTERPRET THE NATIONAL THOUGHT AND BOLDLY INSIST UPON IT, HE IS
IRRESISTIBLE  ...  .  HIS OFFICE IS ANYTHING HE HAS THE SAGACITY AND
FORCE TO MAKE IT."  (FN25)  I CANNOT BE BROUGHT TO BELIEVE THAT THIS
COUNTRY WILL SUFFER IF THE COURT REFUSES FURTHER TO AGGRANDIZE THE
PRESIDENTIAL OFFICE, ALREADY SO POTENT AND SO RELATIVELY IMMUNE FROM
JUDICIAL REVIEW, (FN26) AT THE EXPENSE OF CONGRESS. 

BUT I HAVE NO ILLUSION THAT ANY DECISION BY THIS COURT CAN KEEP POWER
IN THE HANDS OF CONGRESS IF IT IS NOT WISE AND TIMELY IN MEETING ITS
PROBLEMS.  A CRISIS THAT CHALLENGES THE PRESIDENT EQUALLY, OR PERHAPS
PRIMARILY, CHALLENGES CONGRESS.  IF NOT GOOD LAW, THERE WAS WORLDLY
WISDOM IN THE MAXIM ATTRIBUTED TO NAPOLEON THAT "THE TOOLS BELONG TO
THE MAN WHO CAN USE THEM."  WE MAY SAY THAT POWER TO LEGISLATE FOR
EMERGENCIES BELONGS IN THE HANDS OF CONGRESS, BUT ONLY CONGRESS ITSELF
CAN PREVENT POWER FROM SLIPPING THROUGH ITS FINGERS. 

THE ESSENCE OF OUR FREE GOVERNMENT IS "LEAVE TO LIVE BY NO MAN'S
LEAVE, UNDERNEATH THE LAW" - TO BE GOVERNED BY THOSE IMPERSONAL FORCES
WHICH WE CALL LAW.  OUR GOVERNMENT IS FASHIONED TO FULFILL THIS CONCEPT
SO FAR AS HUMANLY POSSIBLE.  THE EXECUTIVE, EXCEPT FOR RECOMMENDATION
AND VETO, HAS NO LEGISLATIVE POWER.  THE EXECUTIVE ACTION WE HAVE HERE
ORIGINATES IN THE INDIVIDUAL WILL OF THE PRESIDENT AND REPRESENTS AN
EXERCISE OF AUTHORITY WITHOUT LAW.  NO ONE, PERHAPS NOT EVEN THE
PRESIDENT, KNOWS THE LIMITS OF THE POWER HE MAY SEEK TO EXERT IN THIS
INSTANCE AND THE PARTIES AFFECTED CANNOT LEARN THE LIMIT OF THEIR
RIGHTS.  WE DO NOT KNOW TODAY WHAT POWERS OVER LABOR OR PROPERTY WOULD
BE CLAIMED TO FLOW FROM GOVERNMENT POSSESSION IF WE SHOULD LEGALIZE IT,
WHAT RIGHTS TO COMPENSATION WOULD BE CLAIMED OR RECOGNIZED, OR ON WHAT
CONTINGENCY IT WOULD END.  WITH ALL ITS DEFECTS, DELAYS AND
INCONVENIENCES, MEN HAVE DISCOVERED NO TECHNIQUE FOR LONG PRESERVING
FREE GOVERNMENT EXCEPT THAT THE EXECUTIVE BE UNDER THE LAW, AND THAT
THE LAW BE MADE BY PARLIAMENTARY DELIBERATIONS. 

SUCH INSTITUTIONS MAY BE DESTINED TO PASS AWAY.  BUT IT IS THE DUTY OF
THE COURT TO BE LAST, NOT FIRST, TO GIVE THEM UP.  (FN27) 

FN1  A HAMILTON MAY BE MATCHED AGAINST A MADISON.  7 THE WORKS OF
ALEXANDER HAMILTON, 76-117; 1 MADISON, LETTERS AND OTHER WRITINGS, 611
654.  PROFESSOR TAFT IS COUNTERBALANCED BY THEODORE ROOSEVELT.  TAFT,
OUR CHIEF MAGISTRATE AND HIS POWERS, 139-140; THEODORE ROOSEVELT,
AUTOBIOGRAPHY, 388-389.  IT EVEN SEEMS THAT PRESIDENT TAFT CANCELS OUT
PROFESSOR TAFT.  COMPARE HIS "TEMPORARY PETROLEUM WITHDRAWAL NO. 5" OF
SEPTEMBER 27, 1909, UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459,
467, 468, WITH HIS APPRAISAL OF EXECUTIVE POWER IN "OUR CHIEF
MAGISTRATE AND HIS POWERS" 139-140. 

FN2  IT IS IN THIS CLASS OF CASES THAT WE FIND THE BROADEST RECENT
STATEMENTS OF PRESIDENTIAL POWER, INCLUDING THOSE RELIED ON HERE. 
UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304, INVOLVED, NOT THE
QUESTION OF THE PRESIDENT'S POWER TO ACT WITHOUT CONGRESSIONAL
AUTHORITY, BUT THE QUESTION OF HIS RIGHT TO ACT UNDER AND IN ACCORD
WITH AN ACT OF CONGRESS.  THE CONSTITUTIONALITY OF THE ACT UNDER WHICH
THE PRESIDENT HAD PROCEEDED WAS ASSAILED ON THE GROUND THAT IT
DELEGATED LEGISLATIVE POWERS TO THE PRESIDENT.  MUCH OF THE COURT'S
OPINION IS DICTUM, BUT THE RATIO DECIDENDI IS CONTAINED IN THE
FOLLOWING LANGUAGE: 

"WHEN THE PRESIDENT IS TO BE AUTHORIZED BY LEGISLATION TO ACT IN
RESPECT OF A MATTER INTENDED TO AFFECT A SITUATION IN FOREIGN
TERRITORY, THE LEGISLATOR PROPERLY BEARS IN MIND THE IMPORTANT
CONSIDERATION THAT THE FORM OF THE PRESIDENT'S ACTION - OR, INDEED,
WHETHER HE SHALL ACT AT ALL - MAY WELL DEPEND, AMONG OTHER THINGS, UPON
THE NATURE OF THE CONFIDENTIAL INFORMATION WHICH HE HAS OR MAY
THEREAFTER RECEIVE, OR UPON THE EFFECT WHICH HIS ACTION MAY HAVE UPON
OUR FOREIGN RELATIONS.  THIS CONSIDERATION, IN CONNECTION WITH WHAT WE
HAVE ALREADY SAID ON THE SUBJECT, DISCLOSES THE UNWISDOM OF REQUIRING
CONGRESS IN THIS FIELD OF GOVERNMENTAL POWER TO LAY DOWN NARROWLY
DEFINITE STANDARDS BY WHICH THE PRESIDENT IS TO BE GOVERNED.  AS THIS
COURT SAID IN MACKENZIE V. HARE, 239 U.S. 299, 311, 'AS A GOVERNMENT,
THE UNITED STATES IS INVESTED WITH ALL THE ATTRIBUTES OF SOVEREIGNTY. 
AS IT HAS THE CHARACTER OF NATIONALITY IT HAS THE POWERS OF
NATIONALITY, ESPECIALLY THOSE WHICH CONCERN ITS RELATIONS AND
INTERCOURSE WITH OTHER COUNTRIES.  WE SHOULD HESITATE LONG BEFORE
LIMITING OR EMBARRASSING SUCH POWERS.'"  ID., AT 321-322. 

THAT CASE DOES NOT SOLVE THE PRESENT CONTROVERSY.  IT RECOGNIZED
INTERNAL AND EXTERNAL AFFAIRS AS BEING IN SEPARATE CATEGORIES, AND HELD
THAT THE STRICT LIMITATION UPON CONGRESSIONAL DELEGATIONS OF POWER TO
THE PRESIDENT OVER INTERNAL AFFAIRS DOES NOT APPLY WITH RESPECT TO
DELEGATIONS OF POWER IN EXTERNAL AFFAIRS.  IT WAS INTIMATED THAT THE
PRESIDENT MIGHT ACT IN EXTERNAL AFFAIRS WITHOUT CONGRESSIONAL
AUTHORITY, BUT NOT THAT HE MIGHT ACT CONTRARY TO AN ACT OF CONGRESS. 

OTHER EXAMPLES OF WIDE DEFINITION OF PRESIDENTIAL POWERS UNDER
STATUTORY AUTHORIZATION ARE CHICAGO & SOUTHERN AIR LINES, INC. V.
WATERMAN STEAMSHIP CORP., 333 U.S. 103, AND HIRABAYASHI V. UNITED
STATES, 320 U.S. 81.  BUT SEE, JECKER V. MONTGOMERY, 13 HOW.  498, 515;
UNITED STATES V. WESTERN UNION TELEGRAPH CO., 272 F. 311; AFF'D, 272
F.893; REV'D ON CONSENT OF THE PARTIES, 260 U.S. 754; UNITED STATES
HARNESS CO. V. GRAHAM, 288 F. 929. 

FN3  SINCE THE CONSTITUTION IMPLIES THAT THE WRIT OF HABEAS CORPUS
MAY BE SUSPENDED IN CERTAIN CIRCUMSTANCES BUT DOES NOT SAY BY WHOM,
PRESIDENT LINCOLN ASSERTED AND MAINTAINED IT AS AN EXECUTIVE FUNCTION
IN THE FACE OF JUDICIAL CHALLENGE AND DOUBT.  EX PARTE MERRYMAN, 17
FED. CAS. 144; EX PARTE MILLIGAN, 4 WALL.  2, 125; SEE EX PARTE
BOLLMAN, 4 CRANCH 75, 101.  CONGRESS EVENTUALLY RATIFIED HIS ACTION. 
HABEAS CORPUS ACT OF MARCH 3, 1863, 12 STAT. 755.  SEE HALL, FREE
SPEECH IN WAR TIME, 21 COL. L. REV. 526.  COMPARE MYERS V. UNITED
STATES, 272 U.S. 52, WITH HUMPHREY'S EXECUTOR V. UNITED STATES, 295
U.S. 602; AND HIRABAYASHI V. UNITED STATES, 320 U.S. 81, WITH THE CASE
AT BAR.  ALSO COMPARE EX PARTE VALLANDIGHAM, 1 WALL.  243, WITH EX
PARTE MILLIGAN, SUPRA. 

FN4  PRESIDENT ROOSEVELT'S EFFORT TO REMOVE A FEDERAL TRADE
COMMISSIONER WAS FOUND TO BE CONTRARY TO THE POLICY OF CONGRESS AND
IMPINGING UPON AN AREA OF CONGRESSIONAL CONTROL, AND SO HIS REMOVAL
POWER WAS CUT DOWN ACCORDINGLY.  HUMPHREY'S EXECUTOR V. UNITED STATES,
295 U.S. 602.  HOWEVER, HIS EXCLUSIVE POWER OF REMOVAL IN EXECUTIVE
AGENCIES, AFFIRMED IN MYERS V. UNITED STATES, 272 U.S. 52, CONTINUED TO
BE ASSERTED AND MAINTAINED.  MORGAN V. TENNESSEE VALLEY AUTHORITY, 115
F.2D 990, CERT. DENIED, 312 U.S. 701; IN RE POWER TO REMOVE MEMBERS OF
THE TENNESSEE VALLEY AUTHORITY, 39 OP. ATTY. GEN. 145; PRESIDENT
ROOSEVELT'S MESSAGE TO CONGRESS OF MARCH 23, 1938, THE PUBLIC PAPERS
AND ADDRESSES OF FRANKLIN D. ROOSEVELT, 1938 (ROSENMAN), 151. 

FN5  THE OFT-CITED LOUISIANA PURCHASE HAD NOTHING TO DO WITH THE
SEPARATION OF POWERS AS BETWEEN THE PRESIDENT AND CONGRESS, BUT ONLY
WITH STATE AND FEDERAL POWER.  THE LOUISIANA PURCHASE WAS SUBJECT TO
RATHER ACADEMIC CRITICISM, NOT UPON THE GROUND THAT MR. JEFFERSON ACTED
WITHOUT AUTHORITY FROM CONGRESS, BUT THAT NEITHER HAD EXPRESS AUTHORITY
TO EXPAND THE BOUNDARIES OF THE UNITED STATES BY PURCHASE OR
ANNEXATION.  MR. JEFFERSON HIMSELF HAD STRONGLY OPPOSED THE DOCTRINE
THAT THE STATES' DELEGATION OF POWERS TO THE FEDERAL GOVERNMENT COULD
BE ENLARGED BY RESORT TO IMPLIED POWERS.  AFTERWARDS, IN A LETTER TO
JOHN BRECKENRIDGE, DATED AUGUST 12, 1803, HE DECLARED: 

"THE CONSTITUTION HAS MADE NO PROVISION FOR OUR HOLDING FOREIGN
TERRITORY, STILL LESS FOR INCORPORATING FOREIGN NATIONS INTO OUR
UNION.  THE EXECUTIVE IN SEIZING THE FUGITIVE OCCURRENCE WHICH SO MUCH
ADVANCES THE GOOD OF THEIR COUNTRY, HAVE DONE AN ACT BEYOND THE
CONSTITUTION.  THE LEGISLATURE IN CASTING BEHIND THEM METAPHYSICAL
SUBLETIES, AND RISKING THEMSELVES LIKE FAITHFUL SERVANTS, MUST RATIFY
AND PAY FOR IT, AND THROW THEMSELVES ON THEIR COUNTRY FOR DOING FOR
THEM UNAUTHORIZED, WHAT WE KNOW THEY WOULD HAVE DONE FOR THEMSELVES HAD
THEY BEEN IN A SITUATION TO DO IT."  10 THE WRITINGS OF THOMAS
JEFFERSON 407, 411. 

FN6  SELECTIVE SERVICE ACT OF 1948, SEC. 18, 62 STAT. 625, 50 U.S.C.
APP. (SUPP. IV) SEC. 468(C). 

FN7  DEFENSE PRODUCTION ACT OF 1950, SEC. 201, 64 STAT. 799, AMENDED,
65 STAT. 132, 50 U.S.C. APP. (SUPP. IV) SEC. 2081.  FOR THE LATITUDE OF
THE CONDEMNATION POWER WHICH UNDERLIES THIS ACT, SEE UNITED STATES V.
WESTINGHOUSE CO., 339 U.S. 261, AND CASES THEREIN CITED. 

FN8  LABOR MANAGEMENT RELATIONS ACT, 1947, SECS. 206-210, 61 STAT.
136, 155, 156, 29 U.S.C. (SUPP. IV) SECS. 141, 176-180.  THE ANALYSIS,
HISTORY AND APPLICATION OF THIS ACT ARE FULLY COVERED BY THE OPINION OF
THE COURT, SUPPLEMENTED BY THAT OF MR. JUSTICE FRANKFURTER AND OF MR.
JUSTICE BURTON, IN WHICH I CONCUR. 

FN9  "  ...  HE MAY REQUIRE THE OPINION, IN WRITING, OF THE PRINCIPAL
OFFICER IN EACH OF THE EXECUTIVE DEPARTMENTS, UPON ANY SUBJECT RELATING
TO THE DUTIES OF THEIR RESPECTIVE OFFICES  ...  ."  U.S. CONST., ART.
II, SEC. 2.  HE "  ...  SHALL COMMISSION ALL THE OFFICERS OF THE UNITED
STATES."  U.S. CONST., ART. II, SEC. 3.  MATTERS SUCH AS THOSE WOULD
SEEM TO BE INHERENT IN THE EXECUTIVE IF ANYTHING IS.    FN10  HOW
WIDELY THIS DOCTRINE ESPOUSED BY THE PRESIDENT'S COUNSEL DEPARTS FROM
THE EARLY VIEW OF PRESIDENTIAL POWER IS SHOWN BY A COMPARISON. 
PRESIDENT JEFFERSON, WITHOUT AUTHORITY FROM CONGRESS, SENT THE AMERICAN
FLEET INTO THE MEDITERRANEAN, WHERE IT ENGAGED IN A NAVAL BATTLE WITH
THE TRIPOLITAN FLEET.  HE SENT A MESSAGE TO CONGRESS ON DECEMBER 8,
1801, IN WHICH HE SAID: 

"TRIPOLI, THE LEAST CONSIDERABLE OF THE BARBARY STATES, HAD COME
FORWARD WITH DEMANDS UNFOUNDED EITHER IN RIGHT OR IN COMPACT, AND HAD
PERMITTED ITSELF TO DENOUNCE WAR ON OUR FAILURE TO COMPLY BEFORE A
GIVEN DAY.  THE STYLE OF THE DEMAND ADMITTED BUT ONE ANSWER.  I SENT A
SMALL SQUADRON OF FRIGATES INTO THE MEDITERRANEAN  ...  WITH ORDERS TO
PROTECT OUR COMMERCE AGAINST THE THREATENED ATTACK  ...  .  OUR
COMMERCE IN THE MEDITERRANEAN WAS BLOCKADED AND THAT OF THE ATLANTIC IN
PERIL ...  .  ONE OF THE TRIPOLITAN CRUISERS HAVING FALLEN IN WITH AND
ENGAGED THE SMALL SCHOONER ENTERPRISE,  ...  WAS CAPTURED, AFTER A
HEAVY SLAUGHTER OF HER MEN  ...  .  UNAUTHORIZED BY THE CONSTITUTION,
WITHOUT THE SANCTION OF CONGRESS, TO GO BEYOND THE LINE OF DEFENSE, THE
VESSEL, BEING DISABLED FROM COMMITTING FURTHER HOSTILITIES, WAS
LIBERATED WITH ITS CREW.  THE LEGISLATURE WILL DOUBTLESS CONSIDER
WHETHER, BY AUTHORIZING MEASURES OF OFFENSE ALSO, THEY WILL PLACE OUR
FORCE ON AN EQUAL FOOTING WITH THAT OF ITS ADVERSARIES.  I COMMUNICATE
ALL MATERIAL INFORMATION ON THIS SUBJECT, THAT IN THE EXERCISE OF THIS
IMPORTANT FUNCTION CONFIDED BY THE CONSTITUTION TO THE LEGISLATURE
EXCLUSIVELY THEIR JUDGMENT MAY FORM ITSELF ON A KNOWLEDGE AND
CONSIDERATION OF EVERY CIRCUMSTANCE OF WEIGHT."  I RICHARDSON, MESSAGES
AND PAPERS OF THE PRESIDENTS, 314. 

FN11  U.S. CONST., ART. I, SEC. 8, CL. 15. 

FN12  14 STAT. 29, 16 STAT. 143, 8 U.S.C. SEC. 55. 

FN13  20 STAT. 152, 10 U.S.C. SEC. 15. 

FN14  IN 1940, PRESIDENT ROOSEVELT PROPOSED TO TRANSFER TO GREAT
BRITAIN CERTAIN OVERAGE DESTROYERS AND SMALL PATROL BOATS THEN UNDER
CONSTRUCTION.  HE DID NOT PRESUME TO RELY UPON ANY CLAIM OF
CONSTITUTIONAL POWER AS COMMANDER IN CHIEF.  ON THE CONTRARY, HE WAS
ADVISED THAT SUCH DESTROYERS - IF CERTIFIED NOT TO BE ESSENTIAL TO THE
DEFENSE OF THE UNITED STATES - COULD BE "TRANSFERRED, EXCHANGED, SOLD,
OR OTHERWISE DISPOSED OF," BECAUSE CONGRESS HAD SO AUTHORIZED HIM. 
ACCORDINGLY, THE DESTROYERS WERE EXCHANGED FOR AIR BASES.  IN THE SAME
OPINION, HE WAS ADVISED THAT CONGRESS HAD PROHIBITED THE RELEASE OR
TRANSFER OF THE SO-CALLED "MOSQUITO BOATS" THEN UNDER CONSTRUCTION, SO
THOSE BOATS WERE NOT TRANSFERRED.  ACQUISITION OF NAVAL AND AIR BASES
IN EXCHANGE FOR OVER-AGE DESTROYERS, 39 OP. ATTY. GEN. 484.  SEE ALSO
TRAINING OF BRITISH FLYING STUDENTS IN THE UNITED STATES, 40 OP. ATTY.
GEN. 58. 

FN15  U.S. CONST., ART. II, SEC. 3. 

FN16  PRESIDENT WILSON, JUST BEFORE OUR ENTRANCE INTO WORLD WAR I,
WENT BEFORE THE CONGRESS AND ASKED ITS APPROVAL OF HIS DECISION TO
AUTHORIZE MERCHANT SHIPS TO CARRY DEFENSIVE WEAPONS.  HE SAID:

"NO DOUBT I ALREADY POSSESS THAT AUTHORITY WITHOUT SPECIAL WARRANT OF
LAW, BY THE PLAIN IMPLICATION OF MY CONSTITUTIONAL DUTIES AND POWERS;
BUT I PREFER, IN THE PRESENT CIRCUMSTANCES, NOT TO ACT UPON GENERAL
IMPLICATION.  I WISH TO FEEL THAT THE AUTHORITY AND THE POWER OF THE
CONGRESS ARE BEHIND ME IN WHATEVER IT MAY BECOME NECESSARY FOR ME TO
DO.  WE ARE JOINTLY THE SERVANTS OF THE PEOPLE AND MUST ACT TOGETHER
AND IN THEIR SPIRIT, SO FAR AS WE CAN DIVINE AND INTERPRET IT."  XVII
RICHARDSON, OP. CIT., 8211. 

WHEN OUR GOVERNMENT WAS ITSELF IN NEED OF SHIPPING WHILST SHIPS
FLYING THE FLAGS OF NATIONS OVERRUN BY HITLER, AS WELL AS BELLIGERENT
MERCHANTMEN, WERE IMMOBILIZED IN AMERICAN HARBORS WHERE THEY HAD TAKEN
REFUGE, PRESIDENT ROOSEVELT DID NOT ASSUME THAT IT WAS IN HIS POWER TO
SEIZE SUCH FOREIGN VESSELS TO MAKE UP OUR OWN DEFICIT.  HE INFORMED
CONGRESS:  "I AM SATISFIED, AFTER CONSULTATION WITH THE HEADS OF THE
INTERESTED DEPARTMENTS AND AGENCIES OF THE GOVERNMENT, THAT WE SHOULD
HAVE STATUTORY AUTHORITY TO TAKE OVER ANY SUCH VESSELS AS OUR NEEDS MAY
REQUIRE  ...  ."  87 CONG. REC. 3072 (77TH CONG., 1ST SESS.); THE
PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT, 1941 (ROSENMAN),
94.  THE NECESSARY STATUTORY AUTHORITY WAS SHORTLY FORTHCOMING.  55
STAT. 242. 

IN HIS FIRST INAUGURAL ADDRESS PRESIDENT ROOSEVELT POINTED OUT TWO
COURSES TO OBTAIN LEGISLATIVE REMEDIES, ONE BEING TO ENACT MEASURES HE
WAS PREPARED TO RECOMMEND, THE OTHER TO ENACT MEASURES "THE CONGRESS
MAY BUILD OUT OF ITS EXPERIENCE AND WISDOM."  HE CONTINUED, "BUT IN THE
EVENT THAT THE CONGRESS SHALL FAIL TO TAKE ONE OF THESE TWO COURSES,
AND IN THE EVENT THAT THE NATIONAL EMERGENCY IS STILL CRITICAL, I SHALL
NOT EVADE THE CLEAR COURSE OF DUTY THAT WILL THEN CONFRONT ME.  I SHALL
ASK THE CONGRESS FOR THE ONE REMAINING INSTRUMENT TO MEET THE CRISIS -
BROAD EXECUTIVE POWER TO WAGE A WAR AGAINST THE EMERGENCY, AS GREAT AS
THE POWER THAT WOULD BE GIVEN TO ME IF WE WERE IN FACT INVADED BY A
FOREIGN FOE."  THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D.
ROOSEVELT, 1933 (ROSENMAN), 15. 

ON MARCH 6, 1933, PRESIDENT ROOSEVELT PROCLAIMED THE BANK HOLIDAY. 
THE PROCLAMATION DID NOT INVOKE CONSTITUTIONAL POWERS OF THE EXECUTIVE
BUT EXPRESSLY AND SOLELY RELIED UPON THE ACT OF CONGRESS OF OCTOBER 6,
1917, 40 STAT. 411, SEC. 5(B), AS AMENDED.  HE RELIED STEADILY ON
LEGISLATION TO EMPOWER HIM TO DEAL WITH ECONOMIC EMERGENCY.  THE PUBLIC
PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT, 1933 (ROSENMAN), 24. 

IT IS INTERESTING TO NOTE HOLDSWORTH'S COMMENT ON THE POWERS OF
LEGISLATION BY PROCLAMATION WHEN IN THE HANDS OF THE TUDORS.  "THE
EXTENT TO WHICH THEY COULD BE LEGALLY USED WAS NEVER FINALLY SETTLED IN
THIS CENTURY, BECAUSE THE TUDORS MADE SO TACTFUL A USE OF THEIR POWERS
THAT NO DEMAND FOR THE SETTLEMENT OF THIS QUESTION WAS RAISED."  4
HOLDSWORTH, HISTORY OF ENGLISH LAW, 104. 

FN17 THE NORTH AMERICAN AVIATION COMPANY WAS UNDER DIRECT AND BINDING
CONTRACTS TO SUPPLY DEFENSE ITEMS TO THE GOVERNMENT.  NO SUCH CONTRACTS
ARE CLAIMED TO EXIST HERE.  SEIZURE OF PLANTS WHICH REFUSED TO COMPLY
WITH GOVERNMENT ORDERS HAD BEEN EXPRESSLY AUTHORIZED BY CONGRESS IN
SEC. 9 OF THE SELECTIVE SERVICE ACT OF 1940, 54 STAT. 885, 892, SO THAT
THE SEIZURE OF THE NORTH AMERICAN PLANT WAS ENTIRELY CONSISTENT WITH
CONGRESSIONAL POLICY.  THE COMPANY MIGHT HAVE OBJECTED ON TECHNICAL
GROUNDS TO THE SEIZURE, BUT IT WAS TAKEN OVER WITH ACQUIESCENCE,
AMOUNTING TO ALL BUT CONSENT, OF THE OWNERS WHO HAD ADMITTED THAT THE
SITUATION WAS BEYOND THEIR CONTROL.  THE STRIKE INVOLVED IN THE NORTH
AMERICAN CASE WAS IN VIOLATION OF THE UNION'S COLLECTIVE AGREEMENT AND
THE NATIONAL LABOR LEADERS APPROVED THE SEIZURE TO END THE STRIKE.  IT
WAS DESCRIBED AS IN THE NATURE OF AN INSURRECTION, A COMMUNIST-LED
POLITICAL STRIKE AGAINST THE GOVERNMENT'S LEND-LEASE POLICY.  HERE WE
HAVE ONLY A LOYAL, LAWFUL, BUT REGRETTABLE ECONOMIC DISAGREEMENT
BETWEEN MANAGEMENT AND LABOR.  THE NORTH AMERICAN PLANT CONTAINED
GOVERNMENT-OWNED MACHINERY, MATERIAL AND GOODS IN THE PROCESS OF
PRODUCTION TO WHICH WORKMEN WERE FORCIBLY DENIED ACCESS BY PICKETING
STRIKERS.  HERE NO GOVERNMENT PROPERTY IS PROTECTED BY THE SEIZURE. 
SEE NEW YORK TIMES OF JUNE 10, 1941, PP. 1, 14 AND 16, FOR
SUBSTANTIALLY ACCURATE ACCOUNT OF THE PROCEEDINGS AND THE CONDITIONS OF
VIOLENCE AT THE NORTH AMERICAN PLANT. 

THE NORTH AMERICAN SEIZURE WAS REGARDED AS AN EXECUTION OF
CONGRESSIONAL POLICY.  I DO NOT REGARD IT AS A PRECEDENT FOR THIS, BUT,
EVEN IF I DID, I SHOULD NOT BIND PRESENT JUDICIAL JUDGMENT BY EARLIER
PARTISAN ADVOCACY. 

STATEMENTS FROM A LETTER BY THE ATTORNEY GENERAL TO THE CHAIRMAN OF
THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, DATED FEBRUARY 2,
1949, WITH REFERENCE TO PENDING LABOR LEGISLATION, WHILE NOT CITED BY
ANY OF THE PARTIES HERE, ARE SOMETIMES QUOTED AS BEING IN SUPPORT OF
THE "INHERENT" POWERS OF THE PRESIDENT.  THE PROPOSED BILL CONTAINED A
MANDATORY PROVISION THAT DURING CERTAIN INVESTIGATIONS THE DISPUTANTS
IN A LABOR DISPUTE SHOULD CONTINUE OPERATIONS UNDER THE TERMS AND
CONDITIONS OF EMPLOYMENT EXISTING PRIOR TO THE BEGINNING OF THE
DISPUTE.  IT MADE NO PROVISION AS TO HOW CONTINUANCE SHOULD BE ENFORCED
AND SPECIFIED NO PENALTY FOR DISOBEDIENCE.  THE ATTORNEY GENERAL
ADVISED THAT IN APPROPRIATE CIRCUMSTANCES THE UNITED STATES WOULD HAVE
ACCESS TO THE COURTS TO PROTECT THE NATIONAL HEALTH, SAFETY AND
WELFARE.  THIS WAS THE RULE LAID DOWN BY THIS COURT IN TEXAS & N.O.R.
CO. V. BROTHERHOOD OF RAILWAY CLERKS, 281 U.S. 548.  THE ATTORNEY
GENERAL OBSERVED: 

"HOWEVER, WITH REGARD TO THE QUESTION OF THE POWER OF THE GOVERNMENT
UNDER TITLE III, I MIGHT POINT OUT THAT THE INHERENT POWER OF THE
PRESIDENT TO DEAL WITH EMERGENCIES THAT AFFECT THE HEALTH, SAFETY AND
WELFARE OF THE ENTIRE NATION IS EXCEEDINGLY GREAT.  SEE OPINION OF
ATTORNEY GENERAL MURPHY OF OCTOBER 4, 1939 (39 OP. A.G. 344, 347);
UNITED STATES V. UNITED MINE WORKERS OF AMERICA, 330 U.S. 258 (1947)." 
SEE HEARINGS BEFORE THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE ON
S. 249, 81ST CONG., 1ST SESS. 263. 

REGARDLESS OF THE GENERAL REFERENCE TO "INHERENT POWERS," THE
CITATIONS WERE INSTANCES OF CONGRESSIONAL AUTHORIZATION.  I DO NOT
SUPPOSE IT IS OPEN TO DOUBT THAT POWER TO SEE THAT THE LAWS ARE
FAITHFULLY EXECUTED WAS AMPLE BASIS FOR THE SPECIFIC ADVICE GIVEN BY
THE ATTORNEY GENERAL IN THIS LETTER. 

FN18  U.S. CONST., ART. I, SEC. 9, CL. 2. 

FN19  I EXCLUDE, AS IN A VERY LIMITED CATEGORY BY ITSELF, THE
ESTABLISHMENT OF MARTIAL LAW.  CF. EX PARTE MILLIGAN, 4 WALL.  2;
DUNCAN V. KAHANAMOKU, 327 U.S. 304. 

FN20  1 NAZI CONSPIRACY AND AGGRESSION 126-127; ROSSITER,
CONSTITUTIONAL DICTATORSHIP, 33-61; BRECHT, PRELUDE TO SILENCE, 138. 

FN21  ROSSITER, CONSTITUTIONAL DICTATORSHIP, 117-129. 

FN22  DEFENCE OF THE REALM ACT, 1914, 4 & 5 GEO. V, C. 29, AS
AMENDED, C. 63; EMERGENCY POWERS (DEFENCE) ACT, 1939, 2 & 3 GEO. VI, C.
62; ROSSITER, CONSTITUTIONAL DICTATORSHIP, 135-184. 

FN23  CHURCHILL, THE UNRELENTING STRUGGLE, 13.  SEE ALSO ID., AT 279
281. 

FN24  39 OP. ATTY. GEN. 348. 

FN25  WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES, 68-69. 

FN26  ROSSITER, THE SUPREME COURT AND THE COMMANDER IN CHIEF, 126
132. 

FN27  WE FOLLOW THE JUDICIAL TRADITION INSTITUTED ON A MEMORABLE
SUNDAY IN 1612, WHEN KING JAMES TOOK OFFENSE AT THE INDEPENDENCE OF HIS
JUDGES AND, IN RAGE, DECLARED: "THEN I AM TO BE UNDER THE LAW - WHICH
IT IS TREASON TO AFFIRM."  CHIEF JUSTICE COKE REPLIED TO HIS KING:
"THUS WROTE BRACTON, 'THE KING OUGHT NOT TO BE UNDER ANY MAN, BUT HE IS
UNDER GOD AND THE LAW.'"  12 COKE 65 (AS TO ITS VERITY, 18 ENG. HIST.
REV.  664-675); 1 CAMPBELL, LIVES OF THE CHIEF JUSTICES (1849), 272. 

MR. JUSTICE BURTON, CONCURRING IN BOTH THE OPINION AND JUDGMENT OF
THE COURT. 

MY POSITION MAY BE SUMMARIZED AS FOLLOWS: 

THE VALIDITY OF THE PRESIDENT'S ORDER OF SEIZURE IS AT ISSUE AND RIPE
FOR DECISION.  ITS VALIDITY TURNS UPON ITS RELATION TO THE
CONSTITUTIONAL DIVISION OF GOVERNMENTAL POWER BETWEEN CONGRESS AND THE
PRESIDENT. 

THE CONSTITUTION HAS DELEGATED TO CONGRESS POWER TO AUTHORIZE ACTION
TO MEET A NATIONAL EMERGENCY OF THE KIND WE FACE.  (FN1)  AWARE OF THIS
RESPONSIBILITY, CONGRESS HAS RESPONDED TO IT.  IT HAS PROVIDED AT LEAST
TWO PROCEDURES FOR THE USE OF THE PRESIDENT. 

IT HAS OUTLINED ONE IN THE LABOR MANAGEMENT RELATIONS ACT, 1947,
BETTER KNOWN AS THE TAFT-HARTLEY ACT.  THE ACCURACY WITH WHICH CONGRESS
THERE DESCRIBES THE PRESENT EMERGENCY DEMONSTRATES ITS APPLICABILITY. 
IT SAYS: 

"WHENEVER IN THE OPINION OF THE PRESIDENT OF THE UNITED STATES, A
THREATENED OR ACTUAL STRIKE OR LOCKOUT AFFECTING AN ENTIRE INDUSTRY OR
A SUBSTANTIAL PART THEREOF ENGAGED IN TRADE, COMMERCE, TRANSPORTATION,
TRANSMISSION, OR COMMUNICATION AMONG THE SEVERAL STATES OR WITH FOREIGN
NATIONS, OR ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE, WILL, IF
PERMITTED TO OCCUR OR TO CONTINUE, IMPERIL THE NATIONAL HEALTH OR
SAFTEY, HE MAY APPOINT A BOARD OF INQUIRY TO INQUIRE INTO THE ISSUES
INVOLVED IN THE DISPUTE AND TO MAKE A WRITTEN REPORT TO HIM WITHIN SUCH
TIME AS HE SHALL PRESCRIBE  ...  ."  (FN2) 

IN THAT SITUATION CONGRESS HAS AUTHORIZED NOT ONLY NEGOTIATION,
CONCILIATION AND IMPARTIAL INQUIRY BUT ALSO A 60-DAY COOLING-OFF PERIOD
UNDER INJUNCTION, FOLLOWED BY 20 DAYS FOR A SECRET BALLOT UPON THE
FINAL OFFER OF SETTLEMENT AND THEN BY RECOMMENDATIONS FROM THE
PRESIDENT TO CONGRESS.  (FN3) 

FOR THE PURPOSES OF THIS CASE THE MOST SIGNIFICANT FEATURE OF THAT
ACT IS ITS OMISSION OF AUTHORITY TO SEIZE AN AFFECTED INDUSTRY.  THE
DEBATE PRECEDING ITS PASSAGE DEMONSTRATED THE SIGNIFICANCE OF THAT
OMISSION.  COLLECTIVE BARGAINING, RATHER THAN GOVERNMENTAL SEIZURE, WAS
TO BE RELIED UPON.  SEIZURE WAS NOT TO BE RESORTED TO WITHOUT SPECIFIC
CONGRESSIONAL AUTHORITY.  CONGRESS RESERVED TO ITSELF THE OPPORTUNITY
TO AUTHORIZE SEIZURE TO MEET PARTICULAR EMERGENCIES.  (FN4) 

THE PRESIDENT, HOWEVER, CHOSE NOT TO USE THE TAFT-HARTLEY PROCEDURE. 
HE CHOSE ANOTHER COURSE, ALSO AUTHORIZED BY CONGRESS.  HE REFERRED THE
CONTROVERSY TO THE WAGE STABILIZATION BOARD.  (FN5) IF THAT COURSE HAD
LED TO A SETTLEMENT OF THE LABOR DISPUTE, IT WOULD HAVE AVOIDED THE
NEED FOR OTHER ACTION.  IT, HOWEVER, DID NOT DO SO. 

NOW IT IS CONTENDED THAT ALTHOUGH THE PRESIDENT DID NOT FOLLOW THE
PROCEDURE AUTHORIZED BY THE TAFT-HARTLEY ACT, HIS SUBSTITUTED PROCEDURE
SERVED THE SAME PURPOSE AND MUST BE ACCEPTED AS ITS EQUIVALENT. 
WITHOUT APPRAISING THAT EQUIVALENCE, IT IS ENOUGH TO POINT OUT THAT
NEITHER PROCEDURE CARRIED STATUTORY AUTHORITY FOR THE SEIZURE OF
PRIVATE INDUSTRIES IN THE MANNER NOW AT ISSUE.  (FN6)  THE EXHAUSTION
OF BOTH PROCEDURES FAILS TO CLOUD THE CLARITY OF THE CONGRESSIONAL
RESERVATION OF SEIZURE FOR ITS OWN CONSIDERATION.    THE FOREGOING
CIRCUMSTANCES DISTINGUISH THIS EMERGENCY FROM ONE IN WHICH CONGRESS
TAKES NO ACTION AND OUTLINES NO GOVERNMENTAL POLICY.  IN THE CASE
BEFORE US, CONGRESS AUTHORIZED A PROCEDURE WHICH THE PRESIDENT DECLINED
TO FOLLOW.  INSTEAD, HE FOLLOWED ANOTHER PROCEDURE WHICH HE HOPED MIGHT
ELIMINATE THE NEED FOR THE FIRST.  UPON ITS FAILURE, HE ISSUED AN
EXECUTIVE ORDER TO SEIZE THE STEEL PROPERTIES IN THE FACE OF THE
RESERVED RIGHT OF CONGRESS TO ADOPT OR REJECT THAT COURSE AS A MATTER
OF LEGISLATIVE POLICY. 

THIS BRINGS US TO A FURTHER CRUCIAL QUESTION.  DOES THE PRESIDENT, IN
SUCH A SITUATION, HAVE INHERENT CONSTITUTIONAL POWER TO SEIZE PRIVATE
PROPERTY WHICH MAKES CONGRESSIONAL ACTION IN RELATION THERETO
UNNECESSARY?  WE FIND NO SUCH POWER AVAILABLE TO HIM UNDER THE PRESENT
CIRCUMSTANCES.  THE PRESENT SITUATION IS NOT COMPARABLE TO THAT OF AN
IMMINENT INVASION OR THREATENED ATTACK.  WE DO NOT FACE THE ISSUE OF
WHAT MIGHT BE THE PRESIDENT'S CONSTITUTIONAL POWER TO MEET SUCH
CATASTROPHIC SITUATIONS.  NOR IS IT CLAIMED THAT THE CURRENT SEIZURE IS
IN THE NATURE OF A MILITARY COMMAND ADDRESSED BY THE PRESIDENT, AS
COMMANDER-IN-CHIEF, TO A MOBILIZED NATION WAGING, OR IMMINENTLY
THREATENED WITH, TOTAL WAR.  (FN7) 

THE CONTROLLING FACT HERE IS THAT CONGRESS, WITHIN ITS
CONSTITUTIONALLY DELEGATED POWER, HAS PRESCRIBED FOR THE PRESIDENT
SPECIFIC PROCEDURES, EXCLUSIVE OF SEIZURE, FOR HIS USE IN MEETING THE
PRESENT TYPE OF EMERGENCY.  CONGRESS HAS RESERVED TO ITSELF THE RIGHT
TO DETERMINE WHERE AND WHEN TO AUTHORIZE THE SEIZURE OF PROPERTY IN
MEETING SUCH AN EMERGENCY.  UNDER THESE CIRCUMSTANCES, THE PRESIDENT'S
ORDER OF APRIL 8 INVADED THE JURISDICTION OF CONGRESS.  IT VIOLATED THE
ESSENCE OF THE PRINCIPLE OF THE SEPARATION OF GOVERNMENTAL POWERS. 
ACCORDINGLY, THE INJUNCTION AGAINST ITS EFFECTIVENESS SHOULD BE
SUSTAINED. 

FN1    ARTICLE.  I. 

"SECTION.  1.  ALL LEGISLATIVE POWERS HEREIN GRANTED SHALL BE VESTED
IN A CONGRESS OF THE UNITED STATES  ...  . 

     *         *         *         *         * 


*         *         *         *         * 

"TO REGULATE COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL
STATES  ...  : 

     *         *         *         *         * 

"TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING
INTO EXECUTION THE FOREGOING POWERS, AND ALL OTHER POWERS VESTED BY
THIS CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES, OR IN ANY
DEPARTMENT OR OFFICER THEREOF." 

FN2  61 STAT. 155, 29 U.S.C. (SUPP. IV) SEC. 176. 

FN3  61 STAT. 155-156, 29 U.S.C. (SUPP. IV) SECS. 176-180. 

FN4  THE CHAIRMAN OF THE SENATE COMMITTEE SPONSORING THE BILL SAID IN
THE SENATE: 

"WE DID NOT FEEL THAT WE SHOULD PUT INTO THE LAW, AS A PART OF THE
COLLECTIVE-BARGAINING MACHINERY, AN ULTIMATE RESORT TO COMPULSORY
ARBITRATION, OR TO SEIZURE, OR TO ANY OTHER ACTION.  WE FEEL THAT IT
WOULD INTERFERE WITH THE WHOLE PROCESS OF COLLECTIVE BARGAINING.  IF
SUCH A REMEDY IS AVAILABLE AS A ROUTINE REMEDY, THERE WILL ALWAYS BE
PRESSURE TO RESORT TO IT BY WHICHEVER PARTY THINKS IT WILL RECEIVE
BETTER TREATMENT THROUGH SUCH A PROCESS THAN IT WOULD RECEIVE IN
COLLECTIVE BARGAINING, AND IT WILL BACK OUT OF COLLECTIVE BARGAINING. 
IT WILL NOT MAKE A BONA-FIDE ATTEMPT TO SETTLE IF IT THINKS IT WILL
RECEIVE A BETTER DEAL UNDER THE FINAL ARBITRATION WHICH MAY BE
PROVIDED. 

"WE HAVE FELT THAT PERHAPS IN THE CASE OF A GENERAL STRIKE, OR IN THE
CASE OF OTHER SERIOUS STRIKES, AFTER THE TERMINATION OF EVERY POSSIBLE
EFFORT TO RESOLVE THE DISPUTE, THE REMEDY MIGHT BE AN EMERGENCY ACT BY
CONGRESS FOR THAT PARTICULAR PURPOSE. 

"I HAVE HAD IN MIND DRAFTING SUCH A BILL, GIVING POWER TO SEIZE THE
PLANTS, AND OTHER NECESSARY FACILITIES, TO SEIZE THE UNIONS, THEIR
MONEY, AND THEIR TREASURY, AND REQUISITION TRUCKS AND OTHER EQUIPMENT;
IN FACT, TO DO EVERYTHING THAT THE BRITISH DID IN THEIR GENERAL STRIKE
OF 1926.  BUT WHILE SUCH A BILL MIGHT BE PREPARED, I SHOULD BE
UNWILLING TO PLACE SUCH A LAW ON THE BOOKS UNTIL WE ACTUALLY FACE SUCH
AN EMERGENCY, AND CONGRESS APPLIES THE REMEDY FOR THE PARTICULAR
EMERGENCY ONLY.  EIGHTY DAYS WILL PROVIDE PLENTY OF TIME WITHIN WHICH
TO CONSIDER THE POSSIBILITY OF WHAT SHOULD BE DONE; AND WE BELIEVE VERY
STRONGLY THAT THERE SHOULD NOT BE ANYTHING IN THIS LAW WHICH PROHIBITS
FINALLY THE RIGHT TO STRIKE."  93 CONG. REC. 3835-3836. 

PART OF THIS QUOTATION WAS RELIED UPON BY THIS COURT IN BUS EMPLOYEES
V. WISCONSIN BOARD, 340 U.S. 383, 396, NOTE 21. 

FN5  UNDER TITLES IV AND V OF THE DEFENSE PRODUCTION ACT OF 1950, 64
STAT. 803-812, 50 U.S.C. APP. (SUPP. IV) SECS. 2101-2123; AND SEE EXEC.
ORDER NO. 10233, 16 FED. REG. 3503. 

FN6  CONGRESS HAS AUTHORIZED OTHER TYPES OF SEIZURE UNDER CONDITIONS
NOT PRESENT HERE.  SECTION 201 OF THE DEFENSE PRODUCTION ACT AUTHORIZES
THE PRESIDENT TO ACQUIRE SPECIFIC "REAL PROPERTY, INCLUDING FACILITIES,
TEMPORARY USE THEREOF, OR OTHER INTEREST THEREIN  ...  " BY
CONDEMNATION.  64 STAT. 799, AS AMENDED, 65 STAT. 132, SEE 50 U.S.C.
APP. (SUPP. IV) SEC. 2081.  THERE HAVE BEEN NO DECLARATIONS OF TAKING
OR CONDEMNATION PROCEEDINGS IN RELATION TO ANY OF THE PROPERTIES
INVOLVED HERE.  SECTION 18 OF THE SELECTIVE SERVICE ACT OF 1948
AUTHORIZES THE PRESIDENT TO TAKE POSSESSION OF A PLANT OR OTHER
FACILITY FAILING TO FILL CERTAIN DEFENSE ORDERS PLACED WITH IT IN THE
MANNER THERE PRESCRIBED.  62 STAT. 625, 50 U.S.C. APP. (SUPP. IV) SEC.
468.  NO ORDERS HAVE BEEN SO PLACED WITH THE STEEL PLANTS SEIZED. 

FN7  THE PRESIDENT AND CONGRESS HAVE RECOGNIZED THE TERMINATION OF
THE MAJOR HOSTILITIES IN THE TOTAL WARS IN WHICH THE NATION HAS BEEN
ENGAGED.  MANY WARTIME PROCEDURES HAVE EXPIRED OR BEEN TERMINATED. 

THE WAR LABOR DISPUTES ACT, 57 STAT. 163 ET SEQ., 50 U.S.C. APP.
SECS. 1501-1511, EXPIRED JUNE 30, 1947, SIX MONTHS AFTER THE
PRESIDENT'S DECLARATION OF THE END OF HOSTILITIES, 3 CFR, 1946 SUPP.,
P. 77.  THE JAPANESE PEACE TREATY WAS APPROVED BY THE SENATE MARCH 20,
1952, CONG. REC., MAR. 20, 1952, P. 2635, AND PROCLAIMED BY THE
PRESIDENT APRIL 28, 1952, 17 FED. REG. 3813. 

MR. JUSTICE CLARK, CONCURRING IN THE JUDGMENT OF THE COURT. 

ONE OF THIS COURT'S FIRST PRONOUNCEMENTS UPON THE POWERS OF THE
PRESIDENT UNDER THE CONSTITUTION WAS MADE BY MR. CHIEF JUSTICE JOHN
MARSHALL SOME ONE HUNDRED AND FIFTY YEARS AGO.  IN LITTLE V. BARREME,
(FN1) HE USED THIS CHARACTERISTICALLY CLEAR LANGUAGE IN DISCUSSING THE
POWER OF THE PRESIDENT TO INSTRUCT THE SEIZURE OF THE FLYING FISH, A
VESSEL BOUND FROM A FRENCH PORT:  "IT IS BY NO MEANS CLEAR THAT THE
PRESIDENT OF THE UNITED STATES WHOSE HIGH DUTY IT IS TO 'TAKE CARE THAT
THE LAWS BE FAITHFULLY EXECUTED,' AND WHO IS COMMANDER IN CHIEF OF THE
ARMIES AND NAVIES OF THE UNITED STATES, MIGHT NOT, WITHOUT ANY SPECIAL
AUTHORITY FOR THAT PURPOSE, IN THE THEN EXISTING STATE OF THINGS, HAVE
EMPOWERED THE OFFICERS COMMANDING THE ARMED VESSELS OF THE UNITED
STATES, TO SEIZE AND SEND INTO PORT FOR ADJUDICATION, AMERICAN VESSELS
WHICH WERE FORFEITED BY BEING ENGAGED IN THIS ILLICIT COMMERCE.  BUT
WHEN IT IS OBSERVED THAT AN ACT OF CONGRESS GIVES A SPECIAL AUTHORITY
TO SEIZE ON THE HIGH SEAS, AND LIMITS THAT AUTHORITY TO THE SEIZURE OF
VESSELS BOUND OR SAILING TO A FRENCH PORT, THE LEGISLATURE SEEM TO HAVE
PRESCRIBED THAT THE MANNER IN WHICH THIS LAW SHALL BE CARRIED INTO
EXECUTION, WAS TO EXCLUDE A SEIZURE OF ANY VESSEL NOT BOUND TO A FRENCH
PORT."  (FN2) ACCORDINGLY, A UNANIMOUS COURT HELD THAT THE PRESIDENT'S
INSTRUCTIONS HAD BEEN ISSUED WITHOUT AUTHORITY AND THAT THEY COULD NOT
"LEGALIZE AN ACT WHICH WITHOUT THOSE INSTRUCTIONS WOULD HAVE BEEN A
PLAIN TRESPASS."  I KNOW OF NO SUBSEQUENT HOLDING OF THIS COURT TO THE
CONTRARY.  (FN3) 

THE LIMITS OF PRESIDENTIAL POWER ARE OBSCURE.  HOWEVER, ARTICLE II,
NO LESS THAN ARTICLE I, IS PART OF "A CONSTITUTION INTENDED TO ENDURE
FOR AGES TO COME, AND, CONSEQUENTLY, TO BE ADAPTED TO THE VARIOUS
CRISES OF HUMAN AFFAIRS."  (FN4)  SOME OF OUR PRESIDENTS, SUCH AS
LINCOLN, "FELT THAT MEASURES OTHERWISE UNCONSTITUTIONAL MIGHT BECOME
LAWFUL BY BECOMING INDISPENSABLE TO THE PRESERVATION OF THE
CONSTITUTION THROUGH THE PRESERVATION OF THE NATION."  (FN5)  OTHERS,
SUCH AS THEODORE ROOSEVELT, THOUGHT THE PRESIDENT TO BE CAPABLE, AS A
"STEWARD" OF THE PEOPLE, OF EXERTING ALL POWER SAVE THAT WHICH IS
SPECIFICALLY PROHIBITED BY THE CONSTITUTION OR THE CONGRESS.  (FN6)  IN
MY VIEW - TAUGHT ME NOT ONLY BY THE DECISION OF MR. CHIEF JUSTICE
MARSHALL IN LITTLE V. BARREME, BUT ALSO BY A SCORE OF OTHER
PRONOUNCEMENTS OF DISTINGUISHED MEMBERS OF THIS BENCH - THE
CONSTITUTION DOES GRANT TO THE PRESIDENT EXTENSIVE AUTHORITY IN TIMES
OF GRAVE AND IMPERATIVE NATIONAL EMERGENCY.  IN FACT, TO MY THINKING,
SUCH A GRANT MAY WELL BE NECESSARY TO THE VERY EXISTENCE OF THE
CONSTITUTION ITSELF.  AS LINCOLN APTLY SAID, "IS IT POSSIBLE TO LOSE
THE NATION AND YET PRESERVE THE CONSTITUTION?"  (FN7)  IN DESCRIBING
THIS AUTHORITY I CARE NOT WHETHER ONE CALLS IT "RESIDUAL," "INHERENT,"
"MORAL," "IMPLIED," "AGGREGATE," "EMERGENCY," OR OTHERWISE.  I AM OF
THE CONVICTION THAT THOSE WHO HAVE HAD THE GRATIFYING EXPERIENCE OF
BEING THE PRESIDENT'S LAWYER HAVE USED ONE OR MORE OF THESE ADJECTIVES
ONLY WITH THE UTMOST OF SINCERITY AND THE HIGHEST OF PURPOSE. 

I CONCLUDE THAT WHERE CONGRESS HAS LAID DOWN SPECIFIC PROCEDURES TO
DEAL WITH THE TYPE OF CRISIS CONFRONTING THE PRESIDENT, HE MUST FOLLOW
THOSE PROCEDURES IN MEETING THE CRISIS; BUT THAT IN THE ABSENCE OF SUCH
ACTION BY CONGRESS, THE PRESIDENT'S INDEPENDENT POWER TO ACT DEPENDS
UPON THE GRAVITY OF THE SITUATION CONFRONTING THE NATION.  I CANNOT
SUSTAIN THE SEIZURE IN QUESTION BECAUSE HERE, AS IN LITTLE V. BARREME,
CONGRESS HAD PRESCRIBED METHODS TO BE FOLLOWED BY THE PRESIDENT IN
MEETING THE EMERGENCY AT HAND. 

THREE STATUTORY PROCEDURES WERE AVAILABLE:  THOSE PROVIDED IN THE
DEFENSE PRODUCTION ACT OF 1950, THE LABOR MANAGEMENT RELATIONS ACT, AND
THE SELECTIVE SERVICE ACT OF 1948.  IN THIS CASE THE PRESIDENT INVOKED
THE FIRST OF THESE PROCEDURES; HE DID NOT INVOKE THE OTHER TWO. 

THE DEFENSE PRODUCTION ACT OF 1950 PROVIDES FOR MEDIATION OF LABOR
DISPUTES AFFECTING NATIONAL DEFENSE.  UNDER THIS STATUTORY
AUTHORIZATION, THE PRESIDENT HAS ESTABLISHED THE WAGE STABILIZATION
BOARD.  THE DEFENSE PRODUCTION ACT, HOWEVER, GRANTS THE PRESIDENT NO
POWER TO SEIZE REAL PROPERTY EXCEPT THROUGH ORDINARY CONDEMNATION
PROCEEDINGS, WHICH WERE NOT USED HERE, AND CREATES NO SANCTIONS FOR THE
SETTLEMENT OF LABOR DISPUTES. 

THE LABOR MANAGEMENT RELATIONS ACT, COMMONLY KNOWN AS THE TAFT
HARTLEY ACT, INCLUDES PROVISIONS ADOPTED FOR THE PURPOSE OF DEALING
WITH NATIONWIDE STRIKES.  THEY ESTABLISH A PROCEDURE WHEREBY THE
PRESIDENT MAY APPOINT A BOARD OF INQUIRY AND THEREAFTER, IN PROPER
CASES, SEEK INJUNCTIVE RELIEF FOR AN 80-DAY PERIOD AGAINST A THREATENED
WORK STOPPAGE.  THE PRESIDENT CAN INVOKE THAT PROCEDURE WHENEVER, IN
HIS OPINION, "A THREATENED OR ACTUAL STRIKE  ...  AFFECTING AN ENTIRE
INDUSTRY  ... WILL, IF PERMITTED TO OCCUR OR TO CONTINUE, IMPERIL THE
NATIONAL HEALTH OR SAFETY."  (FN8)  AT THE TIME THAT ACT WAS PASSED,
CONGRESS SPECIFICALLY REJECTED A PROPOSAL TO EMPOWER THE PRESIDENT TO
SEIZE ANY "PLANT, MINE, OR FACILITY" IN WHICH A THREATENED WORK
STOPPAGE WOULD, IN HIS JUDGMENT, "IMPERIL THE PUBLIC HEALTH OR
SECURITY."  (FN9)  INSTEAD, THE TAFT-HARTLEY ACT DIRECTED THE
PRESIDENT, IN THE EVENT A STRIKE HAD NOT BEEN SETTLED DURING THE 80-DAY
INJUNCTION PERIOD, TO SUBMIT TO CONGRESS "A FULL AND COMPREHENSIVE
REPORT  ...  TOGETHER WITH SUCH RECOMMENDATIONS AS HE MAY SEE FIT TO
MAKE FOR CONSIDERATION AND APPROPRIATE ACTION."  (FN10)  THE
LEGISLATIVE HISTORY OF THE ACT DEMONSTRATES CONGRESS' BELIEF THAT THE
80-DAY PERIOD WOULD AFFORD IT ADEQUATE OPPORTUNITY TO DETERMINE WHETHER
SPECIAL LEGISLATION SHOULD BE ENACTED TO MEET THE EMERGENCY AT HAND. 
(FN11) 

THE SELECTIVE SERVICE ACT OF 1948 GIVES THE PRESIDENT SPECIFIC
AUTHORITY TO SEIZE PLANTS WHICH FAIL TO PRODUCE GOODS REQUIRED BY THE
ARMED FORCES OR THE ATOMIC ENERGY COMMISSION FOR NATIONAL DEFENSE
PURPOSES.  THE ACT PROVIDES THAT WHEN A PRODUCER FROM WHOM THE
PRESIDENT HAS ORDERED SUCH GOODS "REFUSES OR FAILS" TO FILL THE ORDER
WITHIN A PERIOD OF TIME PRESCRIBED BY THE PRESIDENT, THE PRESIDENT MAY
TAKE IMMEDIATE POSSESSION OF THE PRODUCER'S PLANT.  (FN12)  THIS
LANGUAGE IS SIGNIFICANTLY BROADER THAN THAT USED IN THE NATIONAL
DEFENSE ACT OF 1916 AND THE SELECTIVE TRAINING AND SERVICE ACT OF 1940,
WHICH PROVIDED FOR SEIZURE WHEN A PRODUCER "REFUSED" TO SUPPLY
ESSENTIAL DEFENSE MATERIALS, BUT NOT WHEN HE "FAILED" TO DO SO.
(FN13) 

THESE THREE STATUTES FURNISH THE GUIDEPOSTS FOR DECISION IN THIS
CASE.  PRIOR TO SEIZING THE STEEL MILLS ON APRIL 8 THE PRESIDENT HAD
EXHAUSTED THE MEDIATION PROCEDURES OF THE DEFENSE PRODUCTION ACT
THROUGH THE WAGE STABILIZATION BOARD.  USE OF THOSE PROCEDURES HAD
FAILED TO AVERT THE IMPENDING CRISIS; HOWEVER, IT HAD RESULTED IN A 99
DAY POSTPONEMENT OF THE STRIKE.  THE GOVERNMENT ARGUES THAT THIS
ACCOMPLISHED MORE THAN THE MAXIMUM 80-DAY WAITING PERIOD POSSIBLE UNDER
THE SANCTIONS OF THE TAFT-HARTLEY ACT, AND THEREFORE AMOUNTED TO
COMPLIANCE WITH THE SUBSTANCE OF THAT ACT.  EVEN IF ONE WERE TO ACCEPT
THIS SOMEWHAT HYPERBOLIC CONCLUSION, THE HARD FACT REMAINS THAT NEITHER
THE DEFENSE PRODUCTION ACT NOR TAFT-HARTLEY AUTHORIZED THE SEIZURE
CHALLENGED HERE, AND THE GOVERNMENT MADE NO EFFORT TO COMPLY WITH THE
PROCEDURES ESTABLISHED BY THE SELECTIVE SERVICE ACT OF 1948, A STATUTE
WHICH EXPRESSLY AUTHORIZES SEIZURES WHEN PRODUCERS FAIL TO SUPPLY
NECESSARY DEFENSE MATERIEL.  (FN14)    FOR THESE REASONS I CONCUR IN
THE JUDGMENT OF THE COURT.  AS MR. JUSTICE STORY ONCE SAID:  "FOR THE
EXECUTIVE DEPARTMENT OF THE GOVERNMENT, THIS COURT ENTERTAIN THE MOST
ENTIRE RESPECT; AND AMIDST THE MULTIPLICITY OF CARES IN THAT
DEPARTMENT, IT MAY, WITHOUT ANY VIOLATION OF DECORUM, BE PRESUMED, THAT
SOMETIMES THERE MAY BE AN INACCURATE CONSTRUCTION OF A LAW.  IT IS OUR
DUTY TO EXPOUND THE LAWS AS WE FIND THEM IN THE RECORDS OF STATE; AND
WE CANNOT, WHEN CALLED UPON BY THE CITIZENS OF THE COUNTRY, REFUSE OUR
OPINION, HOWEVER IT MAY DIFFER FROM THAT OF VERY GREAT AUTHORITIES." 
(FN15) 

FN1  2 CRANCH 170 (1804).    FN2  ID., AT 177-178. 

FN3  DECISIONS OF THIS COURT WHICH HAVE UPHELD THE EXERCISE OF
PRESIDENTIAL POWER INCLUDE THE FOLLOWING:  PRIZE CASES, 2 BLACK 635
(1863)(SUBSEQUENT RATIFICATION OF PRESIDENT'S ACTS BY CONGRESS); IN RE
NEAGLE, 135 U.S. 1 (1890)(PROTECTION OF FEDERAL OFFICIALS FROM PERSONAL
VIOLENCE WHILE PERFORMING OFFICIAL DUTIES); IN RE DEBS, 158 U.S. 564
(1895)(INJUNCTION TO PREVENT FORCIBLE OBSTRUCTION OF INTERSTATE
COMMERCE AND THE MAILS); UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459
(1915)(ACQUIESCENCE BY CONGRESS IN MORE THAN 250 INSTANCES OF EXERCISE
OF SAME POWER BY VARIOUS PRESIDENTS OVER PERIOD OF 80 YEARS); MYERS V.
UNITED STATES, 272 U.S. 52 (1926)(CONTROL OVER SUBORDINATE OFFICIALS IN
EXECUTIVE DEPARTMENT) BUT SEE HUMPHREY'S EXECUTOR V. UNITED STATES, 295
U.S. 602, 626-628 (1935); HIRABAYASHI V. UNITED STATES, 320 U.S. 81
(1943), AND KOREMATSU V. UNITED STATES, 323 U.S. 214 (1944)(EXPRESS
CONGRESSIONAL AUTHORIZATION); CF. UNITED STATES V. RUSSELL, 13 WALL. 
623 (1871)(IMPERATIVE MILITARY NECESSITY IN AREA OF COMBAT DURING WAR);
UNITED STATES V. CURTISS-WRIGHT EXPORT CORP., 299 U.S. 304 (1936)
(POWER TO NEGOTIATE WITH FOREIGN GOVERNMENTS); UNITED STATES V. UNITED
MINE WORKERS, 330 U.S. 258 (1947)(SEIZURE UNDER SPECIFIC STATUTORY
AUTHORIZATION). 

FN4  MR. CHIEF JUSTICE MARSHALL, IN MCCULLOCH V. MARYLAND, 4 WHEAT. 
316, 415 (1819). 

FN5  LETTER OF APRIL 4, 1864, TO A.G. HODGES, IN 10 COMPLETE WORKS OF
ABRAHAM LINCOLN (NICOLAY AND HAY ED. 1894), 66. 

FN6  ROOSEVELT, AUTOBIOGRAPHY (1914 ED.), 371-372. 

FN7  LETTER OF APRIL 4, 1864, TO A.G. HODGES, IN 10 COMPLETE WORKS OF
ABRAHAM LINCOLN (NICOLAY AND HAY ED. 1894), 66. 

FN8  61 STAT. 155, 29 U.S.C. (SUPP. IV) SEC. 176. 

FN9  93 CONG. REC. 3637-3645; CF. ID., AT 3835-3836. 

FN10  61 STAT. 156, 29 U.S.C. (SUPP. IV) SEC. 180. 

FN11  E.G., S. REP. NO. 105, 80TH CONG., 1ST SESS. 15; 93 CONG. REC.
3835-3836; ID., AT 4281. 

FN12  THE PRODUCER MUST HAVE BEEN NOTIFIED THAT THE ORDER WAS PLACED
PURSUANT TO THE ACT.  THE ACT PROVIDES IN PERTINENT PART AS FOLLOWS: 

"(A)  WHENEVER THE PRESIDENT AFTER CONSULTATION WITH AND RECEIVING
ADVICE FROM THE NATIONAL SECURITY RESOURCES BOARD DETERMINES THAT IT IS
IN THE INTEREST OF THE NATIONAL SECURITY FOR THE GOVERNMENT TO OBTAIN
PROMPT DELIVERY OF ANY ARTICLES OR MATERIALS THE PROCUREMENT OF WHICH
HAS BEEN AUTHORIZED BY THE CONGRESS EXCLUSIVELY FOR THE USE OF THE
ARMED FORCES OF THE UNITED STATES, OR FOR THE USE OF THE ATOMIC ENERGY
COMMISSION, HE IS AUTHORIZED, THROUGH THE HEAD OF ANY GOVERNMENT
AGENCY, TO PLACE WITH ANY PERSON OPERATING A PLANT, MINE, OR OTHER
FACILITY CAPABLE OF PRODUCING SUCH ARTICLES OR MATERIALS AN ORDER FOR
SUCH QUANTITY OF SUCH ARTICLES OR MATERIALS AS THE PRESIDENT DEEMS
APPROPRIATE.  ANY PERSON WITH WHOM AN ORDER IS PLACED PURSUANT TO THE
PROVISIONS OF THIS SECTION SHALL BE ADVISED THAT SUCH ORDER IS PLACED
PURSUANT TO THE PROVISIONS OF THIS SECTION. 

  *         *         *         *         * 

"(C)  IN CASE ANY PERSON WITH WHOM AN ORDER IS PLACED PURSUANT TO THE
PROVISIONS OF SUBSECTION (A) REFUSES OR FAILS: 

     * *         *         *         * 

"(2)  TO FILL SUCH ORDER WITHIN THE PERIOD OF TIME PRESCRIBED BY THE
PRESIDENT OR AS SOON THEREAFTER AS POSSIBLE AS DETERMINED BY THE
PRESIDENT: 

"(3)  TO PRODUCE THE KIND OR QUALITY OF ARTICLES OR MATERIALS
ORDERED; OR: 

"(4)  TO FURNISH THE QUANTITY, KIND, AND QUALITY OF ARTICLES OR
MATERIALS ORDERED AT SUCH PRICE AS SHALL BE NEGOTIATED BETWEEN SUCH
PERSON AND THE GOVERNMENT AGENCY CONCERNED; OR IN THE EVENT OF FAILURE
TO NEGOTIATE A PRICE, TO FURNISH THE QUANTITY, KIND, AND QUALITY OF
ARTICLES OR MATERIALS ORDERED AT SUCH PRICE AS HE MAY SUBSEQUENTLY BE
DETERMINED TO BE ENTITLED TO RECEIVE UNDER SUBSECTION (D): 

"THE PRESIDENT IS AUTHORIZED TO TAKE IMMEDIATE POSSESSION OF ANY
PLANT, MINE, OR OTHER FACILITY OF SUCH PERSON AND TO OPERATE IT,
THROUGH ANY GOVERNMENT AGENCY, FOR THE PRODUCTION OF SUCH ARTICLES OR
MATERIALS AS MAY BE REQUIRED BY THE GOVERNMENT."  62 STAT.  625, 50
U.S.C. APP. (SUPP. IV) SEC. 468.  THE ACT WAS AMENDED IN 1951 AND
REDESIGNATED THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, BUT NO
CHANGE WAS MADE IN THIS SECTION.  65 STAT. 75. 

FN13  39 STAT. 213; 54 STAT. 892. 

FN14  THE GOVERNMENT HAS OFFERED NO EXPLANATION, IN THE RECORD, THE
BRIEFS, OR THE ORAL ARGUMENT, AS TO WHY IT COULD NOT HAVE MADE BOTH A
LITERAL AND TIMELY COMPLIANCE WITH THE PROVISIONS OF THAT ACT. 
APPARENTLY THE GOVERNMENT COULD HAVE PLACED ORDERS WITH THE STEEL
COMPANIES FOR THE VARIOUS TYPES OF STEEL NEEDED FOR DEFENSE PURPOSES,
AND INSTRUCTED THE STEEL COMPANIES TO SHIP THE MATERIEL DIRECTLY TO
PRODUCERS OF PLANES, TANKS, AND MUNITIONS.  THE ACT DOES NOT REQUIRE
THAT GOVERNMENT ORDERS COVER THE ENTIRE CAPACITY OF A PRODUCER'S PLANT
BEFORE THE PRESIDENT HAS POWER TO SEIZE. 

OUR EXPERIENCE DURING WORLD WAR I DEMONSTRATES THE SPEED WITH WHICH
THE GOVERNMENT CAN INVOKE THE REMEDY OF SEIZING PLANTS WHICH FAIL TO
FILL COMPULSORY ORDERS.  THE FEDERAL ENAMELING & STAMPING CO., OF
MCKEES ROCKS, PA., WAS SERVED WITH A COMPULSORY ORDER ON SEPTEMBER 13,
1918, AND SEIZED ON THE SAME DAY.  THE SMITH & WESSON PLANT AT
SPRINGFIELD, MASS., WAS SEIZED ON SEPTEMBER 13, 1918, AFTER THE COMPANY
HAD FAILED TO MAKE DELIVERIES UNDER A COMPULSORY ORDER ISSUED THE
PRECEDING WEEK.  COMMUNICATION FROM ORDNANCE OFFICE TO WAR DEPARTMENT
BOARD OF APPRAISERS, ENTITLED "REPORT ON PLANTS COMMANDEERED BY THE
ORDNANCE OFFICE," DEC. 19, 1918, PP. 3, 4, IN NATIONAL ARCHIVES,
RECORDS OF THE WAR DEPARTMENT, OFFICE OF THE CHIEF OF ORDNANCE, O.O.
004.002/260.  APPARENTLY THE MOSLER SAFE CO., OF HAMILTON, OHIO, WAS
SEIZED ON THE SAME DAY ON WHICH A COMPULSORY ORDER WAS ISSUED.  ID., AT
2; LETTER FROM COUNSEL FOR MOSLER SAFE CO. TO MAJOR GENERAL GEORGE W.
GOETHALS, DIRECTOR OF PURCHASE, STORAGE AND TRAFFIC, WAR DEPARTMENT,
DEC. 9, 1918, P. 1, IN NATIONAL ARCHIVES, RECORDS OF THE WAR
DEPARTMENT, OFFICE OF THE GENERAL STAFF, PST DIVISION 400.1202. 

FN15  THE ORONO, 18 FED. CAS. NO. 10,585 (CIR. CT. D. MASS. 1812). 

MR. CHIEF JUSTICE VINSON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE
MINTON JOIN, DISSENTING. 

THE PRESIDENT OF THE UNITED STATES DIRECTED THE SECRETARY OF COMMERCE
TO TAKE TEMPORARY POSSESSION OF THE NATION'S STEEL MILLS DURING THE
EXISTING EMERGENCY BECAUSE "A WORK STOPPAGE WOULD IMMEDIATELY
JEOPARDIZE AND IMPERIL OUR NATIONAL DEFENSE AND THE DEFENSE OF THOSE
JOINED WITH US IN RESISTING AGGRESSION, AND WOULD ADD TO THE CONTINUING
DANGER OF OUR SOLDIERS, SAILORS, AND AIRMEN ENGAGED IN COMBAT IN THE
FIELD."  THE DISTRICT COURT ORDERED THE MILLS RETURNED TO THEIR PRIVATE
OWNERS ON THE GROUND THAT THE PRESIDENT'S ACTION WAS BEYOND HIS POWERS
UNDER THE CONSTITUTION. 

THIS COURT AFFIRMS.  SOME MEMBERS OF THE COURT ARE OF THE VIEW THAT
THE PRESIDENT IS WITHOUT POWER TO ACT IN TIME OF CRISIS IN THE ABSENCE
OF EXPRESS STATUTORY AUTHORIZATION.  OTHER MEMBERS OF THE COURT AFFIRM
ON THE BASIS OF THEIR READING OF CERTAIN STATUTES.  BECAUSE WE CANNOT
AGREE THAT AFFIRMANCE IS PROPER ON ANY GROUND, AND BECAUSE OF THE
TRANSCENDING IMPORTANCE OF THE QUESTIONS PRESENTED NOT ONLY IN THIS
CRITICAL LITIGATION BUT ALSO TO THE POWERS OF THE PRESIDENT AND OF
FUTURE PRESIDENTS TO ACT IN TIME OF CRISIS, WE ARE COMPELLED TO
REGISTER THIS DISSENT. 

                                     I. 

IN PASSING UPON THE QUESTION OF PRESIDENTIAL POWERS IN THIS CASE, WE
MUST FIRST CONSIDER THE CONTEXT IN WHICH THOSE POWERS WERE EXERCISED. 

THOSE WHO SUGGEST THAT THIS IS A CASE INVOLVING EXTRAORDINARY POWERS
SHOULD BE MINDFUL THAT THESE ARE EXTRAORDINARY TIMES.  A WORLD NOT YET
RECOVERED FROM THE DEVASTATION OF WORLD WAR II HAS BEEN FORCED TO FACE
THE THREAT OF ANOTHER AND MORE TERRIFYING GLOBAL CONFLICT. 

ACCEPTING IN FULL MEASURE ITS RESPONSIBILITY IN THE WORLD COMMUNITY,
THE UNITED STATES WAS INSTRUMENTAL IN SECURING ADOPTION OF THE UNITED
NATIONS CHARTER, APPROVED BY THE SENATE BY A VOTE OF 89 TO 2.  THE
FIRST PURPOSE OF THE UNITED NATIONS IS TO "MAINTAIN INTERNATIONAL PEACE
AND SECURITY, AND TO THAT END:  TO TAKE EFFECTIVE COLLECTIVE MEASURES
FOR THE PREVENTION AND REMOVAL OF THREATS TO THE PEACE, AND FOR THE
SUPPRESSION OF ACTS OF AGGRESSION OR OTHER BREACHES OF THE PEACE,  ...
."  (FN1)  IN 1950, WHEN THE UNITED NATIONS CALLED UPON MEMBER NATIONS
"TO RENDER EVERY ASSISTANCE" TO REPEL AGGRESSION IN KOREA, THE UNITED
STATES FURNISHED ITS VIGOROUS SUPPORT.  (FN2)  FOR ALMOST TWO FULL
YEARS, OUR ARMED FORCES HAVE BEEN FIGHTING IN KOREA, SUFFERING
CASUALTIES OF OVER 108,000 MEN.  HOSTILITIES HAVE NOT ABATED.  THE
"DETERMINATION OF THE UNITED NATIONS TO CONTINUE ITS ACTION IN KOREA TO
MEET THE AGGRESSION" HAS BEEN REAFFIRMED.  (FN3)  CONGRESSIONAL SUPPORT
OF THE ACTION IN KOREA HAS BEEN MANIFESTED BY PROVISIONS FOR INCREASED
MILITARY MANPOWER AND EQUIPMENT AND FOR ECONOMIC STABILIZATION, AS
HEREINAFTER DESCRIBED. 

FURTHER EFFORTS TO PROTECT THE FREE WORLD FROM AGGRESSION ARE FOUND
IN THE CONGRESSIONAL ENACTMENTS OF THE TRUMAN PLAN FOR ASSISTANCE TO
GREECE AND TURKEY (FN4) AND THE MARSHALL PLAN FOR ECONOMIC AID NEEDED
TO BUILD UP THE STRENGTH OF OUR FRIENDS IN WESTERN EUROPE.  (FN5)  IN
1949, THE SENATE APPROVED THE NORTH ATLANTIC TREATY UNDER WHICH EACH
MEMBER NATION AGREES THAT AN ARMED ATTACK AGAINST ONE IS AN ARMED
ATTACK AGAINST ALL.  (FN6)  CONGRESS IMMEDIATELY IMPLEMENTED THE NORTH
ATLANTIC TREATY BY AUTHORIZING MILITARY ASSISTANCE TO NATIONS DEDICATED
TO THE PRINCIPLES OF MUTUAL SECURITY UNDER THE UNITED NATIONS CHARTER. 
(FN7)  THE CONCEPT OF MUTUAL SECURITY RECENTLY HAS BEEN EXTENDED BY
TREATY TO FRIENDS IN THE PACIFIC.  (FN8) 

OUR TREATIES REPRESENT NOT MERELY LEGAL OBLIGATIONS BUT SHOW
CONGRESSIONAL RECOGNITION THAT MUTUAL SECURITY FOR THE FREE WORLD IS
THE BEST SECURITY AGAINST THE THREAT OF AGGRESSION ON A GLOBAL SCALE. 
THE NEED FOR MUTUAL SECURITY IS SHOWN BY THE VERY SIZE OF THE ARMED
FORCES OUTSIDE THE FREE WORLD.  DEFENDANT'S BRIEF INFORMS US THAT THE
SOVIET UNION MAINTAINS THE LARGEST AIR FORCE IN THE WORLD AND MAINTAINS
GROUND FORCES MUCH LARGER THAN THOSE PRESENTLY AVAILABLE TO THE UNITED
STATES AND THE COUNTRIES JOINED WITH US IN MUTUAL SECURITY
ARRANGEMENTS.  CONSTANT INTERNATIONAL TENSIONS ARE CITED TO DEMONSTRATE
HOW PRECARIOUS IS THE PEACE. 

EVEN THIS BRIEF REVIEW OF OUR RESPONSIBILITIES IN THE WORLD COMMUNITY
DISCLOSES THE ENORMITY OF OUR UNDERTAKING.  SUCCESS OF THESE MEASURES
MAY, AS HAS OFTEN BEEN OBSERVED, DRAMATICALLY INFLUENCE THE LIVES OF
MANY GENERATIONS OF THE WORLD'S PEOPLES YET UNBORN.  ALERT TO OUR
RESPONSIBILITIES, WHICH COINCIDE WITH OUR OWN SELF-PRESERVATION THROUGH
MUTUAL SECURITY, CONGRESS HAS ENACTED A LARGE BODY OF IMPLEMENTING
LEGISLATION.  AS AN ILLUSTRATION OF THE MAGNITUDE OF THE OVER-ALL
PROGRAM, CONGRESS HAS APPROPRIATED $130 BILLION FOR OUR OWN DEFENSE AND
FOR MILITARY ASSISTANCE TO OUR ALLIES SINCE THE JUNE, 1950, ATTACK IN
KOREA. 

IN THE MUTUAL SECURITY ACT OF 1951, CONGRESS AUTHORIZED "MILITARY,
ECONOMIC, AND TECHNICAL ASSISTANCE TO FRIENDLY COUNTRIES TO STRENGTHEN
THE MUTUAL SECURITY AND INDIVIDUAL AND COLLECTIVE DEFENSES OF THE FREE
WORLD,  ...  ."  (FN9)  OVER $5 1/2 BILLION WERE APPROPRIATED FOR
MILITARY ASSISTANCE FOR FISCAL YEAR 1952, THE BULK OF THAT AMOUNT TO BE
DEVOTED TO PURCHASE OF MILITARY EQUIPMENT.  (FN10)  A REQUEST FOR OVER
$7 BILLION FOR THE SAME PURPOSE FOR FISCAL YEAR 1953 IS CURRENTLY
PENDING IN CONGRESS.  (FN11)  IN ADDITION TO DIRECT SHIPMENT OF
MILITARY EQUIPMENT TO NATIONS OF THE FREE WORLD, DEFENSE PRODUCTION IN
THOSE COUNTRIES RELIES UPON SHIPMENT OF MACHINE TOOLS AND ALLOCATION OF
STEEL TONNAGE FROM THE UNITED STATES.  (FN12) 

CONGRESS ALSO DIRECTED THE PRESIDENT TO BUILD UP OUR OWN DEFENSES. 
CONGRESS, RECOGNIZING THE "GRIM FACT  ...  THAT THE UNITED STATES IS
NOW ENGAGED IN A STRUGGLE FOR SURVIVAL" AND THAT "IT IS IMPERATIVE THAT
WE NOW TAKE THOSE NECESSARY STEPS TO MAKE OUR STRENGTH EQUAL TO THE
PERIL OF THE HOUR," GRANTED AUTHORITY TO DRAFT MEN INTO THE ARMED
FORCES.  (FN13)  AS A RESULT, WE NOW HAVE OVER 3,500,000 MEN IN OUR
ARMED FORCES.  (FN14) 

APPROPRIATIONS FOR THE DEPARTMENT OF DEFENSE, WHICH HAD AVERAGED LESS
THAN $13 BILLION PER YEAR FOR THE THREE YEARS BEFORE ATTACK IN KOREA,
WERE INCREASED BY CONGRESS TO $48 BILLION FOR FISCAL YEAR 1951 AND TO
$60 BILLION FOR FISCAL YEAR 1952.  (FN15)  A REQUEST FOR $51 BILLION
FOR THE DEPARTMENT OF DEFENSE FOR FISCAL YEAR 1953 IS CURRENTLY PENDING
IN CONGRESS.  (FN16)  THE BULK OF THE INCREASE IS FOR MILITARY
EQUIPMENT AND SUPPLIES - GUNS, TANKS, SHIPS, PLANES AND AMMUNITION -
ALL OF WHICH REQUIRE STEEL.  OTHER DEFENSE PROGRAMS REQUIRING GREAT
QUANTITIES OF STEEL INCLUDE THE LARGE SCALE EXPANSION OF FACILITIES FOR
THE ATOMIC ENERGY COMMISSION (FN17) AND THE EXPANSION OF THE NATION'S
PRODUCTIVE CAPACITY AFFIRMATIVELY ENCOURAGED BY CONGRESS.  (FN18) 

CONGRESS RECOGNIZED THE IMPACT OF THESE DEFENSE PROGRAMS UPON THE
ECONOMY.  FOLLOWING THE ATTACK IN KOREA, THE PRESIDENT ASKED FOR
AUTHORITY TO REQUISITION PROPERTY AND TO ALLOCATE AND FIX PRIORITIES
FOR SCARCE GOODS.  IN THE DEFENSE PRODUCTION ACT OF 1950, CONGRESS
GRANTED THE POWERS REQUESTED AND, IN ADDITION, GRANTED POWER TO
STABILIZE PRICES AND WAGES AND TO PROVIDE FOR SETTLEMENT OF LABOR
DISPUTES ARISING IN THE DEFENSE PROGRAM.  (FN19)  THE DEFENSE
PRODUCTION ACT WAS EXTENDED IN 1951, A SENATE COMMITTEE NOTING THAT IN
THE DISLOCATION CAUSED BY THE PROGRAMS FOR PURCHASE OF MILITARY
EQUIPMENT "LIES THE SEED OF AN ECONOMIC DISASTER THAT MIGHT WELL
DESTROY THE MILITARY MIGHT WE ARE STRAINING TO BUILD."  (FN20)
SIGNIFICANTLY, THE COMMITTEE EXAMINED THE PROBLEM "IN TERMS OF JUST ONE
COMMODITY, STEEL," AND FOUND "A GRAPHIC PICTURE OF THE OVER-ALL
INFLATIONARY DANGER GROWING OUT OF REDUCED CIVILIAN SUPPLIES AND RISING
INCOMES."  EVEN BEFORE KOREA, STEEL PRODUCTION AT LEVELS ABOVE
THEORETICAL 100% CAPACITY WAS NOT CAPABLE OF SUPPLYING CIVILIAN NEEDS
ALONE.  SINCE KOREA, THE TREMENDOUS MILITARY DEMAND FOR STEEL HAS FAR
EXCEEDED THE INCREASES IN PRODUCTIVE CAPACITY.  THIS COMMITTEE
EMPHASIZED THAT THE SHORTAGE OF STEEL, EVEN WITH THE MILLS OPERATING AT
FULL CAPACITY, COUPLED WITH INCREASED CIVILIAN PURCHASING POWER,
PRESENTED GRAVE DANGER OF DISASTROUS INFLATION.  (FN21) 

THE PRESIDENT HAS THE DUTY TO EXECUTE THE FOREGOING LEGISLATIVE
PROGRAMS.  THEIR SUCCESSFUL EXECUTION DEPENDS UPON CONTINUED PRODUCTION
OF STEEL AND STABILIZED PRICES FOR STEEL.  ACCORDINGLY, WHEN THE
COLLECTIVE BARGAINING AGREEMENTS BETWEEN THE NATION'S STEEL PRODUCERS
AND THEIR EMPLOYEES, REPRESENTED BY THE UNITED STEEL WORKERS, WERE DUE
TO EXPIRE ON DECEMBER 31, 1951, AND A STRIKE SHUTTING DOWN THE ENTIRE
BASIC STEEL INDUSTRY WAS THREATENED, THE PRESIDENT ACTED TO AVERT A
COMPLETE SHUTDOWN OF STEEL PRODUCTION.  ON DECEMBER 22, 1951, HE
CERTIFIED THE DISPUTE TO THE WAGE STABILIZATION BOARD, REQUESTING THAT
THE BOARD INVESTIGATE THE DISPUTE AND PROMPTLY REPORT ITS
RECOMMENDATION AS TO FAIR AND EQUITABLE TERMS OF SETTLEMENT.  THE UNION
COMPLIED WITH THE PRESIDENT'S REQUEST AND DELAYED ITS THREATENED STRIKE
WHILE THE DISPUTE WAS BEFORE THE BOARD.  AFTER A SPECIAL BOARD PANEL
HAD CONDUCTED HEARINGS AND SUBMITTED A REPORT, THE FULL WAGE
STABILIZATION BOARD SUBMITTED ITS REPORT AND RECOMMENDATIONS TO THE
PRESIDENT ON MARCH 20, 1952. 

THE BOARD'S REPORT WAS ACCEPTABLE TO THE UNION BUT WAS REJECTED BY
PLAINTIFFS.  THE UNION GAVE NOTICE OF ITS INTENTION TO STRIKE AS OF
12:01 A.M., APRIL 9, 1952, BUT BARGAINING BETWEEN THE PARTIES CONTINUED
WITH HOPE OF SETTLEMENT UNTIL THE EVENING OF APRIL 8, 1952.  AFTER
BARGAINING HAD FAILED TO AVERT THE THREATENED SHUTDOWN OF STEEL
PRODUCTION, THE PRESIDENT ISSUED THE FOLLOWING EXECUTIVE ORDER: 

"WHEREAS ON DECEMBER 16, 1950, I PROCLAIMED THE EXISTENCE OF A
NATIONAL EMERGENCY WHICH REQUIRES THAT THE MILITARY, NAVAL, AIR, AND
CIVILIAN DEFENSES OF THIS COUNTRY BE STRENGTHENED AS SPEEDILY AS
POSSIBLE TO THE END THAT WE MAY BE ABLE TO REPEL ANY AND ALL THREATS
AGAINST OUR NATIONAL SECURITY AND TO FULFILL OUR RESPONSIBILITIES IN
THE EFFORTS BEING MADE THROUGHOUT THE UNITED NATIONS AND OTHERWISE TO
BRING ABOUT A LASTING PEACE; AND: 

"WHEREAS AMERICAN FIGHTING MEN AND FIGHTING MEN OF OTHER NATIONS OF
THE UNITED NATIONS ARE NOW ENGAGED IN DEADLY COMBAT WITH THE FORCES OF
AGGRESSION IN KOREA, AND FORCES OF THE UNITED STATES ARE STATIONED
ELSEWHERE OVERSEAS FOR THE PURPOSE OF PARTICIPATING IN THE DEFENSE OF
THE ATLANTIC COMMUNITY AGAINST AGGRESSION; AND: 

"WHEREAS THE WEAPONS AND OTHER MATERIALS NEEDED BY OUR ARMED FORCES
AND BY THOSE JOINED WITH US IN THE DEFENSE OF THE FREE WORLD ARE
PRODUCED TO A GREAT EXTENT IN THIS COUNTRY, AND STEEL IS AN
INDISPENSABLE COMPONENT OF SUBSTANTIALLY ALL OF SUCH WEAPONS AND
MATERIALS; AND: 

"WHEREAS STEEL IS LIKEWISE INDISPENSABLE TO THE CARRYING OUT OF
PROGRAMS OF THE ATOMIC ENERGY COMMISSION OF VITAL IMPORTANCE TO OUR
DEFENSE EFFORTS; AND: 

"WHEREAS A CONTINUING AND UNINTERRUPTED SUPPLY OF STEEL IS ALSO
INDISPENSABLE TO THE MAINTENANCE OF THE ECONOMY OF THE UNITED STATES,
UPON WHICH OUR MILITARY STRENGTH DEPENDS; AND: 

"WHEREAS A CONTROVERSY HAS ARISEN BETWEEN CERTAIN COMPANIES IN THE
UNITED STATES PRODUCING AND FABRICATING STEEL AND THE ELEMENTS THEREOF
AND CERTAIN OF THEIR WORKERS REPRESENTED BY THE UNITED STEEL WORKERS OF
AMERICA, CIO, REGARDING TERMS AND CONDITIONS OF EMPLOYMENT; AND: 

"WHEREAS THE CONTROVERSY HAS NOT BEEN SETTLED THROUGH THE PROCESSES
OF COLLECTIVE BARGAINING OR THROUGH THE EFFORTS OF THE GOVERNMENT,
INCLUDING THOSE OF THE WAGE STABILIZATION BOARD, TO WHICH THE
CONTROVERSY WAS REFERRED ON DECEMBER 22, 1951, PURSUANT TO EXECUTIVE
ORDER NO. 10233, AND A STRIKE HAS BEEN CALLED FOR 12:01 A.M., APRIL 9,
1952; AND: 

"WHEREAS A WORK STOPPAGE WOULD IMMEDIATELY JEOPARDIZE AND IMPERIL OUR
NATIONAL DEFENSE AND THE DEFENSE OF THOSE JOINED WITH US IN RESISTING
AGGRESSION, AND WOULD ADD TO THE CONTINUING DANGER OF OUR SOLDIERS,
SAILORS, AND AIRMEN ENGAGED IN COMBAT IN THE FIELD; AND: 

"WHEREAS IN ORDER TO ASSURE THE CONTINUED AVAILABILITY OF STEEL AND
STEEL PRODUCTS DURING THE EXISTING EMERGENCY, IT IS NECESSARY THAT THE
UNITED STATES TAKE POSSESSION OF AND OPERATE THE PLANTS, FACILITIES,
AND OTHER PROPERTY OF THE SAID COMPANIES AS HEREINAFTER PROVIDED: 

"NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES, AND AS PRESIDENT OF THE
UNITED STATES AND COMMANDER IN CHIEF OF THE ARMED FORCES OF THE UNITED
STATES, IT IS HEREBY ORDERED AS FOLLOWS: 

"1.  THE SECRETARY OF COMMERCE IS HEREBY AUTHORIZED AND DIRECTED TO
TAKE POSSESSION OF ALL OR SUCH OF THE PLANTS, FACILITIES, AND OTHER
PROPERTY OF THE COMPANIES NAMED IN THE LIST ATTACHED HERETO, OR ANY
PART THEREOF, AS HE MAY DEEM NECESSARY IN THE INTERESTS OF NATIONAL
DEFENSE; AND TO OPERATE OR TO ARRANGE FOR THE OPERATION THEREOF AND TO
DO ALL THINGS NECESSARY FOR, OR INCIDENTAL TO, SUCH OPERATION  ... ." 
(FN22) 

THE NEXT MORNING, APRIL 9, 1952, THE PRESIDENT ADDRESSED THE
FOLLOWING MESSAGE TO CONGRESS: 

"TO THE CONGRESS OF THE UNITED STATES: 

"THE CONGRESS IS UNDOUBTEDLY AWARE OF THE RECENT EVENTS WHICH HAVE
TAKEN PLACE IN CONNECTION WITH THE MANAGEMENT-LABOR DISPUTE IN THE
STEEL INDUSTRY.  THESE EVENTS CULMINATED IN THE ACTION WHICH WAS TAKEN
LAST NIGHT TO PROVIDE FOR TEMPORARY OPERATION OF THE STEEL MILLS BY THE
GOVERNMENT. 

"I TOOK THIS ACTION WITH THE UTMOST RELUCTANCE.  THE IDEA OF
GOVERNMENT OPERATION OF THE STEEL MILLS IS THOROUGHLY DISTASTEFUL TO ME
AND I WANT TO SEE IT ENDED AS SOON AS POSSIBLE.  HOWEVER, IN THE
SITUATION WHICH CONFRONTED ME YESTERDAY, I FELT THAT I COULD MAKE NO
OTHER CHOICE.  THE OTHER ALTERNATIVES APPEARED TO BE EVEN WORSE - SO
MUCH WORSE THAT I COULD NOT ACCEPT THEM. 

"ONE ALTERNATIVE WOULD HAVE BEEN TO PERMIT A SHUT-DOWN IN THE STEEL
INDUSTRY.  THE EFFECTS OF SUCH A SHUT-DOWN WOULD HAVE BEEN SO IMMEDIATE
AND DAMAGING WITH RESPECT TO OUR EFFORTS TO SUPPORT OUR ARMED FORCES
AND TO PROTECT OUR NATIONAL SECURITY THAT IT MADE THIS ALTERNATIVE
UNTHINKABLE. 

"THE ONLY WAY THAT I KNOW OF, OTHER THAN GOVERNMENT OPERATION, BY
WHICH A STEEL SHUT-DOWN COULD HAVE BEEN AVOIDED WAS TO GRANT THE
DEMANDS OF THE STEEL INDUSTRY FOR A LARGE PRICE INCREASE.  I BELIEVED
AND THE OFFICIALS IN CHARGE OF OUR STABILIZATION AGENCIES BELIEVED THAT
THIS WOULD HAVE WRECKED OUR STABILIZATION PROGRAM.  I WAS UNWILLING TO
ACCEPT THE INCALCULABLE DAMAGE WHICH MIGHT BE DONE TO OUR COUNTRY BY
FOLLOWING SUCH A COURSE. 

"ACCORDINGLY, IT WAS MY JUDGMENT THAT GOVERNMENT OPERATION OF THE
STEEL MILLS FOR A TEMPORARY PERIOD WAS THE LEAST UNDESIRABLE OF THE
COURSES OF ACTION WHICH LAY OPEN.  IN THE CIRCUMSTANCES, I BELIEVED IT
TO BE, AND NOW BELIEVE IT TO BE, MY DUTY AND WITHIN MY POWERS AS
PRESIDENT TO FOLLOW THAT COURSE OF ACTION. 

"IT MAY BE THAT THE CONGRESS WILL DEEM SOME OTHER COURSE TO BE
WISER.  IT MAY BE THAT THE CONGRESS WILL FEEL WE SHOULD GIVE IN TO THE
DEMANDS OF THE STEEL INDUSTRY FOR AN EXORBITANT PRICE INCREASE AND TAKE
THE CONSEQUENCES SO FAR AS RESULTING INFLATION IS CONCERNED. 

"IT MAY BE THAT THE CONGRESS WILL FEEL THE GOVERNMENT SHOULD TRY TO
FORCE THE STEEL WORKERS TO CONTINUE TO WORK FOR THE STEEL COMPANIES FOR
ANOTHER LONG PERIOD, WITHOUT A CONTRACT, EVEN THOUGH THE STEEL WORKERS
HAVE ALREADY VOLUNTARILY REMAINED AT WORK WITHOUT A CONTRACT FOR 100
DAYS IN AN EFFORT TO REACH AN ORDERLY SETTLEMENT OF THEIR DIFFERENCES
WITH MANAGEMENT. 

"IT MAY EVEN BE THAT THE CONGRESS WILL FEEL THAT WE SHOULD PERMIT A
SHUT-DOWN OF THE STEEL INDUSTRY, ALTHOUGH THAT WOULD IMMEDIATELY
ENDANGER THE SAFETY OF OUR FIGHTING FORCES ABROAD AND WEAKEN THE WHOLE
STRUCTURE OF OUR NATIONAL SECURITY. 

"I DO NOT BELIEVE THE CONGRESS WILL FAVOR ANY OF THESE COURSES OF
ACTION, BUT THAT IS A MATTER FOR THE CONGRESS TO DETERMINE. 

"IT MAY BE, ON THE OTHER HAND, THAT THE CONGRESS WILL WISH TO PASS
LEGISLATION ESTABLISHING SPECIFIC TERMS AND CONDITIONS WITH REFERENCE
TO THE OPERATION OF THE STEEL MILLS BY THE GOVERNMENT.  SOUND
LEGISLATION OF THIS CHARACTER MIGHT BE VERY DESIRABLE. 

"ON THE BASIS OF THE FACTS THAT ARE KNOWN TO ME AT THIS TIME, I DO
NOT BELIEVE THAT IMMEDIATE CONGRESSIONAL ACTION IS ESSENTIAL; BUT I
WOULD, OF COURSE, BE GLAD TO COOPERATE IN DEVELOPING ANY LEGISLATIVE
PROPOSALS WHICH THE CONGRESS MAY WISH TO CONSIDER. 

"IF THE CONGRESS DOES NOT DEEM IT NECESSARY TO ACT AT THIS TIME, I
SHALL CONTINUE TO DO ALL THAT IS WITHIN MY POWER TO KEEP THE STEEL
INDUSTRY OPERATING AND AT THE SAME TIME MAKE EVERY EFFORT TO BRING
ABOUT A SETTLEMENT OF THE DISPUTE SO THE MILLS CAN BE RETURNED TO THEIR
PRIVATE OWNERS AS SOON AS POSSIBLE.  (FN23) 

TWELVE DAYS PASSED WITHOUT ACTION BY CONGRESS.  ON APRIL 21, 1952,
THE PRESIDENT SENT A LETTER TO THE PRESIDENT OF THE SENATE IN WHICH HE
AGAIN DESCRIBED THE PURPOSE AND NEED FOR HIS ACTION AND AGAIN STATED
HIS POSITION THAT "THE CONGRESS CAN, IF IT WISHES, REJECT THE COURSE OF
ACTION I HAVE FOLLOWED IN THIS MATTER."  (FN24)  CONGRESS HAS NOT SO
ACTED TO THIS DATE. 

MEANWHILE, PLAINTIFFS INSTITUTED THIS ACTION IN THE DISTRICT COURT TO
COMPEL DEFENDANT TO RETURN POSSESSION OF THE STEEL MILLS SEIZED UNDER
EXECUTIVE ORDER 10340.  IN THIS LITIGATION FOR RETURN OF PLAINTIFFS'
PROPERTIES, WE ASSUME THAT DEFENDANT CHARLES SAWYER IS NOT IMMUNE FROM
JUDICIAL RESTRAINT AND THAT PLAINTIFFS ARE ENTITLED TO EQUITABLE RELIEF
IF WE FIND THAT THE EXECUTIVE ORDER UNDER WHICH DEFENDANT ACTS IS
UNCONSTITUTIONAL.  WE ALSO ASSUME WITHOUT DECIDING THAT THE COURTS MAY
GO BEHIND A PRESIDENT'S FINDING OF FACT THAT AN EMERGENCY EXISTS.  BUT
THERE IS NOT THE SLIGHTEST BASIS FOR SUGGESTING THAT THE PRESIDENT'S
FINDING IN THIS CASE CAN BE UNDERMINED.  PLAINTIFFS MOVED FOR A
PRELIMINARY INJUNCTION BEFORE ANSWER OR HEARING.  DEFENDANT OPPOSED THE
MOTION, FILING UNCONTROVERTED AFFIDAVITS OF GOVERNMENT OFFICIALS
DESCRIBING THE FACTS UNDERLYING THE PRESIDENT'S ORDER. 

SECRETARY OF DEFENSE LOVETT SWORE THAT "A WORK STOPPAGE IN THE STEEL
INDUSTRY WILL RESULT IMMEDIATELY IN SERIOUS CURTAILMENT OF PRODUCTION
OF ESSENTIAL WEAPONS AND MUNITIONS OF ALL KINDS."  HE ILLUSTRATED BY
SHOWING THAT 84% OF THE NATIONAL PRODUCTION OF CERTAIN ALLOY STEEL IS
CURRENTLY USED FOR PRODUCTION OF MILITARY-END ITEMS AND THAT 35% OF
TOTAL PRODUCTION OF ANOTHER FORM OF STEEL GOES INTO AMMUNITION, 80% OF
SUCH AMMUNITION NOW GOING TO KOREA.  THE SECRETARY OF DEFENSE STATED
THAT:  "WE ARE HOLDING THE LINE IN KOREA WITH AMMUNITION AND NOT WITH
THE LIVES OF OUR TROOPS." 

AFFIDAVITS OF THE CHAIRMAN OF THE ATOMIC ENERGY COMMISSION, THE
SECRETARY OF THE INTERIOR, DEFENDANT AS SECRETARY OF COMMERCE, AND THE
ADMINISTRATORS OF THE DEFENSE PRODUCTION ADMINISTRATION, THE NATIONAL
PRODUCTION AUTHORITY, THE GENERAL SERVICES ADMINISTRATION AND THE
DEFENSE TRANSPORT ADMINISTRATION WERE ALSO FILED IN THE DISTRICT
COURT.  THESE AFFIDAVITS DISCLOSE AN ENORMOUS DEMAND FOR STEEL IN SUCH
VITAL DEFENSE PROGRAMS AS THE EXPANSION OF FACILITIES IN ATOMIC ENERGY,
PETROLEUM, POWER, TRANSPORTATION AND INDUSTRIAL PRODUCTION, INCLUDING
STEEL PRODUCTION.  THOSE CHARGED WITH ADMINISTERING ALLOCATIONS AND
PRIORITIES SWORE TO THE VITAL PART STEEL PRODUCTION PLAYS IN OUR
ECONOMY.  THE AFFIDAVITS EMPHASIZE THE CRITICAL NEED FOR STEEL IN OUR
DEFENSE PROGRAM, THE ABSENCE OF APPRECIABLE INVENTORIES OF STEEL, AND
THE DRASTIC RESULTS OF ANY INTERRUPTION IN STEEL PRODUCTION. 

ONE IS NOT HERE CALLED UPON EVEN TO CONSIDER THE POSSIBILITY OF
EXECUTIVE SEIZURE OF A FARM, A CORNER GROCERY STORE OR EVEN A SINGLE
INDUSTRIAL PLANT.  SUCH CONSIDERATIONS ARISE ONLY WHEN ONE IGNORES THE
CENTRAL FACT OF THIS CASE - THAT THE NATION'S ENTIRE BASIC STEEL
PRODUCTION WOULD HAVE SHUT DOWN COMPLETELY IF THERE HAD BEEN NO
GOVERNMENT SEIZURE.  EVEN IGNORING FOR THE MOMENT WHATEVER CONFIDENTIAL
INFORMATION THE PRESIDENT MAY POSSESS AS "THE NATION'S ORGAN FOR
FOREIGN AFFAIRS," (FN25) THE UNCONTROVERTED AFFIDAVITS IN THIS RECORD
AMPLY SUPPORT THE FINDING THAT "A WORK STOPPAGE WOULD IMMEDIATELY
JEOPARDIZE AND IMPERIL OUR NATIONAL DEFENSE." 

PLAINTIFFS DO NOT REMOTELY SUGGEST ANY BASIS FOR REJECTING THE
PRESIDENT'S FINDING THAT ANY STOPPAGE OF STEEL PRODUCTION WOULD
IMMEDIATELY PLACE THE NATION IN PERIL.  MOREOVER, EVEN SELF-GENERATED
DOUBTS THAT ANY STOPPAGE OF STEEL PRODUCTION CONSTITUTES AN EMERGENCY
ARE OF LITTLE COMFORT HERE.  THE UNION AND THE PLAINTIFFS BARGAINED FOR
6 MONTHS WITH OVER 100 ISSUES IN DISPUTE - ISSUES NOT LIMITED TO WAGE
DEMANDS BUT INCLUDING THE UNION SHOP AND OTHER MATTERS OF PRINCIPLE
BETWEEN THE PARTIES.  AT THE TIME OF SEIZURE THERE WAS NOT, AND THERE
IS NOT NOW, THE SLIGHTEST EVIDENCE TO JUSTIFY THE BELIEF THAT ANY
STRIKE WILL BE OF SHORT DURATION.  THE UNION AND THE STEEL COMPANIES
MAY WELL ENGAGE IN A LENGTHY STRUGGLE.  PLAINTIFFS' COUNSEL TELLS US
THAT "SOONER OR LATER" THE MILLS WILL OPERATE AGAIN.  THAT MAY SATISFY
THE STEEL COMPANIES AND, PERHAPS, THE UNION.  BUT OUR SOLDIERS AND OUR
ALLIES WILL HARDLY BE CHEERED WITH THE ASSURANCE THAT THE AMMUNITION
UPON WHICH THEIR LIVES DEPEND WILL BE FORTHCOMING - "SOONER OR LATER,"
OR, IN OTHER WORDS, "TOO LITTLE AND TOO LATE."    ACCORDINGLY, IF THE
PRESIDENT HAS ANY POWER UNDER THE CONSTITUTION TO MEET A CRITICAL
SITUATION IN THE ABSENCE OF EXPRESS STATUTORY AUTHORIZATION, THERE IS
NO BASIS WHATEVER FOR CRITICIZING THE EXERCISE OF SUCH POWER IN THIS
CASE. 

                       II. 

THE STEEL MILLS WERE SEIZED FOR A PUBLIC USE.  THE POWER OF EMINENT
DOMAIN, INVOKED IN THIS CASE, IS AN ESSENTIAL ATTRIBUTE OF SOVEREIGNTY
AND HAS LONG BEEN RECOGNIZED AS A POWER OF THE FEDERAL GOVERNMENT. 
KOHL V. UNITED STATES, 91 U.S. 367 (1876).  PLAINTIFFS CANNOT COMPLAIN
THAT ANY PROVISION IN THE CONSTITUTION PROHIBITS THE EXERCISE OF THE
POWER OF EMINENT DOMAIN IN THIS CASE.  THE FIFTH AMENDMENT PROVIDES:
"NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST
COMPENSATION."  IT IS NO BAR TO THIS SEIZURE FOR, IF THE TAKING IS NOT
OTHERWISE UNLAWFUL, PLAINTIFFS ARE ASSURED OF RECEIVING THE REQUIRED
JUST COMPENSATION.  UNITED STATES V. PEWEE COAL CO., 341 U.S. 114
(1951). 

ADMITTING THAT THE GOVERNMENT COULD SEIZE THE MILLS, PLAINTIFFS CLAIM
THAT THE IMPLIED POWER OF EMINENT DOMAIN CAN BE EXERCISED ONLY UNDER AN
ACT OF CONGRESS; UNDER NO CIRCUMSTANCES, THEY SAY, CAN THAT POWER BE
EXERCISED BY THE PRESIDENT UNLESS HE CAN POINT TO AN EXPRESS PROVISION
IN ENABLING LEGISLATION.  THIS WAS THE VIEW ADOPTED BY THE DISTRICT
JUDGE WHEN HE GRANTED THE PRELIMINARY INJUNCTION.  WITHOUT AN ANSWER,
WITHOUT HEARING EVIDENCE, HE DETERMINED THE ISSUE ON THE BASIS OF HIS
"FIXED CONCLUSION  ...  THAT DEFENDANT'S ACTS ARE ILLEGAL" BECAUSE THE
PRESIDENT'S ONLY COURSE IN THE FACE OF AN EMERGENCY IS TO PRESENT THE
MATTER TO CONGRESS AND AWAIT THE FINAL PASSAGE OF LEGISLATION WHICH
WILL ENABLE THE GOVERNMENT TO COPE WITH THREATENED DISASTER. 

UNDER THIS VIEW, THE PRESIDENT IS LEFT POWERLESS AT THE VERY MOMENT
WHEN THE NEED FOR ACTION MAY BE MOST PRESSING AND WHEN NO ONE, OTHER
THAN HE, IS IMMEDIATELY CAPABLE OF ACTION.  UNDER THIS VIEW, HE IS LEFT
POWERLESS BECAUSE A POWER NOT EXPRESSLY GIVEN TO CONGRESS IS
NEVERTHELESS FOUND TO REST EXCLUSIVELY WITH CONGRESS. 

CONSIDERATION OF THIS VIEW OF EXECUTIVE IMPOTENCE CALLS FOR FURTHER
EXAMINATION OF THE NATURE OF THE SEPARATION OF POWERS UNDER OUR
TRIPARTITE SYSTEM OF GOVERNMENT. 

THE CONSTITUTION PROVIDES: 

ART. I: 

A CONGRESS OF THE UNITED STATES,  ...  ." 

ART. II: 

THE UNITED STATES OF AMERICA  ...  ." 

AND NAVY OF THE UNITED STATES,  ...  ." 

"HE SHALL HAVE POWER, BY AND WITH THE ADVICE AND CONSENT OF THE
SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE SENATORS PRESENT
CONCUR; ...  ." 

INFORMATION OF THE STATE OF THE UNION, AND RECOMMEND TO THEIR
CONSIDERATION SUCH MEASURES AS HE SHALL JUDGE NECESSARY AND EXPEDIENT;
...  HE SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED,  ...  ." 

ART. III: 

IN ONE SUPREME COURT, AND IN SUCH INFERIOR COURTS AS THE CONGRESS MAY
FROM TIME TO TIME ORDAIN AND ESTABLISH." 

THE WHOLE OF THE "EXECUTIVE POWER" IS VESTED IN THE PRESIDENT. 
BEFORE ENTERING OFFICE, THE PRESIDENT SWEARS THAT HE "WILL FAITHFULLY
EXECUTE THE OFFICE OF PRESIDENT OF THE UNITED STATES, AND WILL TO THE
BEST OF HIS ABILITY, PRESERVE, PROTECT AND DEFEND THE CONSTITUTION OF
THE UNITED STATES."  ART. II, SEC. 1. 

THIS COMPREHENSIVE GRANT OF THE EXECUTIVE POWER TO A SINGLE PERSON
WAS BESTOWED SOON AFTER THE COUNTRY HAD THROWN THE YOKE OF MONARCHY. 
ONLY BY INSTILLING INITIATIVE AND VIGOR IN ALL OF THE THREE DEPARTMENTS
OF GOVERNMENT, DECLARED MADISON, COULD TYRANNY IN ANY FORM BE AVOIDED. 
(FN26) HAMILTON ADDED:  "ENERGY IN THE EXECUTIVE IS A LEADING CHARACTER
IN THE DEFINITION OF GOOD GOVERNMENT.  IT IS ESSENTIAL TO THE
PROTECTION OF THE COMMUNITY AGAINST FOREIGN ATTACKS; IT IS NOT LESS
ESSENTIAL TO THE STEADY ADMINISTRATION OF THE LAWS; TO THE PROTECTION
OF PROPERTY AGAINST THOSE IRREGULAR AND HIGH-HANDED COMBINATIONS WHICH
SOMETIMES INTERRUPT THE ORDINARY COURSE OF JUSTICE; TO THE SECURITY OF
LIBERTY AGAINST THE ENTERPRISES AND ASSAULTS OF AMBITION, OF FACTION,
AND OF ANARCHY."  (FN27)  IT IS THUS APPARENT THAT THE PRESIDENCY WAS
DELIBERATELY FASHIONED AS AN OFFICE OF POWER AND INDEPENDENCE.  OF
COURSE, THE FRAMERS CREATED NO AUTOCRAT CAPABLE OF ARROGATING ANY POWER
UNTO HIMSELF AT ANY TIME.  BUT NEITHER DID THEY CREATE AN AUTOMATON
IMPOTENT TO EXERCISE THE POWERS OF GOVERNMENT AT A TIME WHEN THE
SURVIVAL OF THE REPUBLIC ITSELF MAY BE AT STAKE. 

IN PASSING UPON THE GRAVE CONSTITUTIONAL QUESTION PRESENTED IN THIS
CASE, WE MUST NEVER FORGET, AS CHIEF JUSTICE MARSHALL ADMONISHED, THAT
THE CONSTITUTION IS "INTENDED TO ENDURE FOR AGES TO COME, AND,
CONSEQUENTLY, TO BE ADAPTED TO THE VARIOUS CRISES OF HUMAN AFFAIRS,"
AND THAT "ITS MEANS ARE ADEQUATE TO ITS ENDS."  (FN28)  CASES DO ARISE
PRESENTING QUESTIONS WHICH COULD NOT HAVE BEEN FORESEEN BY THE
FRAMERS.  IN SUCH CASES, THE CONSTITUTION HAS BEEN TREATED AS A LIVING
DOCUMENT ADAPTABLE TO NEW SITUATIONS.  (FN29)  BUT WE ARE NOT CALLED
UPON TODAY TO EXPAND THE CONSTITUTION TO MEET A NEW SITUATION.  FOR, IN
THIS CASE, WE NEED ONLY LOOK TO HISTORY AND TIME-HONORED PRINCIPLES OF
CONSTITUTIONAL LAW - PRINCIPLES THAT HAVE BEEN APPLIED CONSISTENTLY BY
ALL BRANCHES OF THE GOVERNMENT THROUGHOUT OUR HISTORY.  IT IS THOSE WHO
ASSERT THE INVALIDITY OF THE EXECUTIVE ORDER WHO SEEK TO AMEND THE
CONSTITUTION IN THIS CASE. 

                                   III. 

A REVIEW OF EXECUTIVE ACTION DEMONSTRATES THAT OUR PRESIDENTS HAVE ON
MANY OCCASIONS EXHIBITED THE LEADERSHIP CONTEMPLATED BY THE FRAMERS
WHEN THEY MADE THE PRESIDENT COMMANDER IN CHIEF, AND IMPOSED UPON HIM
THE TRUST TO "TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED."  WITH OR
WITHOUT EXPLICIT STATUTORY AUTHORIZATION, PRESIDENTS HAVE AT SUCH TIMES
DEALT WITH NATIONAL EMERGENCIES BY ACTING PROMPTLY AND RESOLUTELY TO
ENFORCE LEGISLATIVE PROGRAMS, AT LEAST TO SAVE THOSE PROGRAMS UNTIL
CONGRESS COULD ACT.  CONGRESS AND THE COURTS HAVE RESPONDED TO SUCH
EXECUTIVE INITIATIVE WITH CONSISTENT APPROVAL. 

OUR FIRST PRESIDENT DISPLAYED AT ONCE THE LEADERSHIP CONTEMPLATED BY
THE FRAMERS.  WHEN THE NATIONAL REVENUE LAWS WERE OPENLY FLOUTED IN
SOME SECTIONS OF PENNSYLVANIA, PRESIDENT WASHINGTON, WITHOUT WAITING
FOR A CALL FROM THE STATE GOVERNMENT, SUMMONED THE MILITIA AND TOOK
DECISIVE STEPS TO SECURE THE FAITHFUL EXECUTION OF THE LAWS.  (FN30)
WHEN INTERNATIONAL DISPUTES ENGENDERED BY THE FRENCH REVOLUTION
THREATENED TO INVOLVE THIS COUNTRY IN WAR, AND WHILE CONGRESSIONAL
POLICY REMAINED UNCERTAIN, WASHINGTON ISSUED HIS PROCLAMATION OF
NEUTRALITY.  HAMILTON, WHOSE DEFENSE OF THE PROCLAMATION HAS ENDURED
THE TEST OF TIME, INVOKED THE ARGUMENT THAT THE EXECUTIVE HAS THE DUTY
TO DO THAT WHICH WILL PRESERVE PEACE UNTIL CONGRESS ACTS AND, IN
ADDITION, POINTED TO THE NEED FOR KEEPING THE NATION INFORMED OF THE
REQUIREMENTS OF EXISTING LAWS AND TREATIES AS PART OF THE FAITHFUL
EXECUTION OF THE LAWS.  (FN31) 

PRESIDENT JOHN ADAMS ISSUED A WARRANT FOR THE ARREST OF JONATHAN
ROBBINS IN ORDER TO EXECUTE THE EXTRADITION PROVISIONS OF A TREATY. 
THIS ACTION WAS CHALLENGED IN CONGRESS ON THE GROUND THAT NO SPECIFIC
STATUTE PRESCRIBED THE METHOD TO BE USED IN EXECUTING THE TREATY.  JOHN
MARSHALL, THEN A MEMBER OF THE HOUSE OF REPRESENTATIVES, MADE THE
FOLLOWING ARGUMENT IN SUPPORT OF THE PRESIDENT'S ACTION: 

"THE TREATY, WHICH IS A LAW, ENJOINS THE PERFORMANCE OF A PARTICULAR
OBJECT.  THE PERSON WHO IS TO PERFORM THIS OBJECT IS MARKED OUT BY THE
CONSTITUTION, SINCE THE PERSON IS NAMED WHO CONDUCTS THE FOREIGN
INTERCOURSE, AND IS TO TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED. 
THE MEANS BY WHICH IT IS TO BE PERFORMED, THE FORCE OF THE NATION, ARE
IN THE HANDS OF THIS PERSON.  OUGHT NOT THIS PERSON TO PERFORM THE
OBJECT, ALTHOUGH THE PARTICULAR MODE OF USING THE MEANS HAS NOT BEEN
PRESCRIBED?  CONGRESS, UNQUESTIONABLY, MAY PRESCRIBE THE MODE, AND
CONGRESS MAY DEVOLVE ON OTHERS THE WHOLE EXECUTION OF THE CONTRACT;
BUT, TILL THIS BE DONE, IT SEEMS THE DUTY OF THE EXECUTIVE DEPARTMENT
TO EXECUTE THE CONTRACT BY ANY MEANS IT POSSESSES."  (FN32) 

EFFORTS IN CONGRESS TO DISCREDIT THE PRESIDENT FOR HIS ACTION
FAILED.  (FN33)  ALMOST A CENTURY LATER, THIS COURT HAD OCCASION TO
GIVE ITS EXPRESS APPROVAL TO "THE MASTERLY AND CONCLUSIVE ARGUMENT OF
JOHN MARSHALL."  (FN34) 

JEFFERSON'S INTIATIVE IN THE LOUISIANA PURCHASE, THE MONROE DOCTRINE,
AND JACKSON'S REMOVAL OF GOVERNMENT DEPOSITS FROM THE BANK OF THE
UNITED STATES FURTHER SERVE TO DEMONSTRATE BY DEED WHAT THE FRAMERS
DESCRIBED BY WORD WHEN THEY VESTED THE WHOLE OF THE EXECUTIVE POWER IN
THE PRESIDENT. 

WITHOUT DECLARATION OF WAR, PRESIDENT LINCOLN TOOK ENERGETIC ACTION
WITH THE OUTBREAK OF THE WAR BETWEEN THE STATES.  HE SUMMONED TROOPS
AND PAID THEM OUT OF THE TREASURY WITHOUT APPROPRIATION THEREFOR.  HE
PROCLAIMED A NAVAL BLOCKADE OF THE CONFEDERACY AND SEIZED SHIPS
VIOLATING THAT BLOCKADE.  CONGRESS, FAR FROM DENYING THE VALIDITY OF
THESE ACTS, GAVE THEM EXPRESS APPROVAL.  THE MOST STRIKING ACTION OF
PRESIDENT LINCOLN WAS THE EMANCIPATION PROCLAMATION, ISSUED IN AID OF
THE SUCCESSFUL PROSECUTION OF THE WAR BETWEEN THE STATES, BUT WHOLLY
WITHOUT STATUTORY AUTHORITY.  (FN35) 

IN AN ACTION FURNISHING A MOST APT PRECEDENT FOR THIS CASE, PRESIDENT
LINCOLN WITHOUT STATUTORY AUTHORITY DIRECTED THE SEIZURE OF RAIL AND
TELEGRAPH LINES LEADING TO WASHINGTON.  (FN36)  MANY MONTHS LATER,
CONGRESS RECOGNIZED AND CONFIRMED THE POWER OF THE PRESIDENT TO SEIZE
RAILROADS AND TELEGRAPH LINES AND PROVIDED CRIMINAL PENALTIES FOR
INTERFERENCE WITH GOVERNMENT OPERATION.  (FN37) THIS ACT DID NOT CONFER
ON THE PRESIDENT ANY ADDITIONAL POWERS OF SEIZURE.  CONGRESS PLAINLY
REJECTED THE VIEW THAT THE PRESIDENT'S ACTS HAD BEEN WITHOUT LEGAL
SANCTION UNTIL RATIFIED BY THE LEGISLATURE.  SPONSORS OF THE BILL
DECLARED THAT ITS PURPOSE WAS ONLY TO CONFIRM THE POWER WHICH THE
PRESIDENT ALREADY POSSESSED.  (FN38)  OPPONENTS INSISTED A STATUTE
AUTHORIZING SEIZURE WAS UNNECESSARY AND MIGHT EVEN BE CONSTRUED AS
LIMITING EXISTING PRESIDENTIAL POWERS.  (FN39) 

OTHER SEIZURES OF PRIVATE PROPERTY OCCURRED DURING THE WAR BETWEEN
THE STATES, JUST AS THEY HAD OCCURRED DURING PREVIOUS WARS.  (FN40)  IN
UNITED STATES V. RUSSELL, 13 WALL.  623 (1872), THREE RIVER STEAMERS
WERE SEIZED BY ARMY QUARTERMASTERS ON THE GROUND OF "IMPERATIVE
MILITARY NECESSITY."  THIS COURT AFFIRMED AN AWARD OF COMPENSATION,
STATING: 

"EXTRAORDINARY AND UNFORESEEN OCCASIONS ARISE, HOWEVER, BEYOND ALL
DOUBT, IN CASES OF EXTREME NECESSITY IN TIME OF WAR OR OF IMMEDIATE AND
IMPENDING PUBLIC DANGER, IN WHICH PRIVATE PROPERTY MAY BE IMPRESSED
INTO THE PUBLIC SERVICE, OR MAY BE SEIZED AND APPROPRIATED TO THE
PUBLIC USE, OR MAY EVEN BE DESTROYED WITHOUT THE CONSENT OF THE OWNER. 

     *      *         *         *         * 

"EXIGENCIES OF THE KIND DO ARISE IN TIME OF WAR OR IMPENDING PUBLIC
DANGER, BUT IT IS THE EMERGENCY, AS WAS SAID BY A GREAT MAGISTRATE,
THAT GIVES THE RIGHT, AND IT IS CLEAR THAT THE EMERGENCY MUST BE SHOWN
TO EXIST BEFORE THE TAKING CAN BE JUSTIFIED.  SUCH A JUSTIFICATION MAY
BE SHOWN, AND WHEN SHOWN THE RULE IS WELL SETTLED THAT THE OFFICER
TAKING PRIVATE PROPERTY FOR SUCH A PURPOSE, IF THE EMERGENCY IS FULLY
PROVED, IS NOT A TRESPASSER, AND THAT THE GOVERNMENT IS BOUND TO MAKE
FULL COMPENSATION TO THE OWNER."  (FN41) 

IN RE NEAGLE, 135 U.S. 1 (1890), THIS COURT HELD THAT A FEDERAL
OFFICER HAD ACTED IN LINE OF DUTY WHEN HE WAS GUARDING A JUSTICE OF
THIS COURT RIDING CIRCUIT.  IT WAS CONCEDED THAT THERE WAS NO SPECIFIC
STATUTE AUTHORIZING THE PRESIDENT TO ASSIGN SUCH A GUARD.  IN HOLDING
THAT SUCH A STATUTE WAS NOT NECESSARY, THE COURT BROADLY STATED THE
QUESTION AS FOLLOWS: 

"THE PRESIDENT IS ENABLED TO FULFIL THE DUTY OF HIS GREAT DEPARTMENT,
EXPRESSED IN THE PHRASE THAT 'HE SHALL TAKE CARE THAT THE LAWS BE
FAITHFULLY EXECUTED.' 

"IS THIS DUTY LIMITED TO THE ENFORCEMENT OF ACTS OF CONGRESS OR OF
TREATIES OF THE UNITED STATES ACCORDING TO THEIR EXPRESS TERMS, OR DOES
IT INCLUDE THE RIGHTS, DUTIES AND OBLIGATIONS GROWING OUT OF THE
CONSTITUTION ITSELF, OUR INTERNATIONAL RELATIONS, AND ALL THE
PROTECTION IMPLIED BY THE NATURE OF THE GOVERNMENT UNDER THE
CONSTITUTION?"  (FN42) 

THE LATTER APPROACH WAS EMPHATICALLY ADOPTED BY THE COURT. 

PRESIDENT HAYES AUTHORIZED THE WIDE-SPREAD USE OF FEDERAL TROOPS
DURING THE RAILROAD STRIKE OF 1877.  (FN43)  PRESIDENT CLEVELAND ALSO
USED THE TROOPS IN THE PULLMAN STRIKE OF 1895 AND HIS ACTION IS OF
SPECIAL SIGNIFICANCE.  NO STATUTE AUTHORIZED THIS ACTION.  NO CALL FOR
HELP HAD ISSUED FROM THE GOVERNOR OF ILLINOIS; INDEED GOVERNOR ALTGELD
DISCLAIMED THE NEED FOR SUPPLEMENTAL FORCES.  BUT THE PRESIDENT'S
CONCERN WAS THAT FEDERAL LAWS RELATING TO THE FREE FLOW OF INTERSTATE
COMMERCE AND THE MAILS BE CONTINUOUSLY AND FAITHFULLY EXECUTED WITHOUT
INTERRUPTION.  (FN44)  TO FURTHER THIS AIM HIS AGENTS SOUGHT AND
OBTAINED THE INJUNCTION UPHELD BY THIS COURT IN IN RE DEBS, 158 U.S.
564 (1895).  THE COURT SCRUTINIZED EACH OF THE STEPS TAKEN BY THE
PRESIDENT TO INSURE EXECUTION OF THE "MASS OF LEGISLATION" DEALING WITH
COMMERCE AND THE MAILS AND GAVE HIS CONDUCT FULL APPROVAL.  CONGRESS
LIKEWISE TOOK NOTE OF THIS USE OF PRESIDENTIAL POWER TO FORESTALL
APPARENT OBSTACLES TO THE FAITHFUL EXECUTION OF THE LAWS.  BY SEPARATE
RESOLUTIONS, BOTH THE SENATE AND THE HOUSE COMMENDED THE EXECUTIVE'S
ACTION.  (FN45)    PRESIDENT THEODORE ROOSEVELT SERIOUSLY CONTEMPLATED
SEIZURE OF PENNSYLVANIA COAL MINES IF A COAL SHORTAGE NECESSITATED SUCH
ACTION.  (FN46)  IN HIS AUTOBIOGRAPHY, PRESIDENT ROOSEVELT EXPOUNDED
THE "STEWARDSHIP THEORY" OF PRESIDENTIAL POWER, STATING THAT "THE
EXECUTIVE AS SUBJECT ONLY TO THE PEOPLE, AND, UNDER THE CONSTITUTION,
BOUND TO SERVE THE PEOPLE AFFIRMATIVELY IN CASES WHERE THE CONSTITUTION
DOES NOT EXPLICITLY FORBID HIM TO RENDER THE SERVICE."  (FN47)  BECAUSE
THE CONTEMPLATED SEIZURE OF THE COAL MINES WAS BASED ON THIS THEORY,
THEN EX-PRESIDENT TAFT CRITICIZED PRESIDENT ROOSEVELT IN A PASSAGE IN
HIS BOOK RELIED UPON BY THE DISTRICT COURT IN THIS CASE.  TAFT, OUR
CHIEF MAGISTRATE AND HIS POWERS (1916), 139-147.  IN THE SAME BOOK,
HOWEVER, PRESIDENT TAFT AGREED THAT SUCH POWERS OF THE PRESIDENT AS THE
DUTY TO "TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED" COULD NOT BE
CONFINED TO "EXPRESS CONGRESSIONAL STATUTES."  ID., AT 88.  IN RE
NEAGLE, SUPRA, AND IN RE DEBS, SUPRA, WERE CITED AS CONFORMING WITH
TAFT'S CONCEPT OF THE OFFICE, ID., AT PP. 88-94, AS THEY WERE LATER TO
BE CITED WITH APPROVAL IN HIS OPINION AS CHIEF JUSTICE IN MYERS V.
UNITED STATES, 272 U.S. 52, 133 (1926).  (FN48) 

IN 1909, PRESIDENT TAFT WAS INFORMED THAT GOVERNMENT-OWNED OIL LANDS
WERE BEING PATENTED BY PRIVATE PARTIES AT SUCH A RATE THAT PUBLIC OIL
LANDS WOULD BE DEPLETED IN A MATTER OF MONTHS.  ALTHOUGH CONGRESS HAD
EXPLICITLY PROVIDED THAT THESE LANDS WERE OPEN TO PURCHASE BY UNITED
STATES CITIZENS, 29 STAT. 526 (1897), THE PRESIDENT NEVERTHELESS
ORDERED THE LANDS WITHDRAWN FROM SALE "IN AID OF PROPOSED
LEGISLATION."  IN UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459
(1915), THE PRESIDENT'S ACTION WAS SUSTAINED AS CONSISTENT WITH
EXECUTIVE PRACTICE THROUGHOUT OUR HISTORY.  AN EXCELLENT BRIEF WAS
FILED IN THE CASE BY THE SOLICITOR GENERAL, MR. JOHN W. DAVIS, TOGETHER
WITH ASSISTANT ATTORNEY GENERAL KNAEBEL, LATER REPORTER FOR THIS
COURT.  IN THIS BRIEF, THE SITUATION CONFRONTING PRESIDENT TAFT WAS
DESCRIBED AS "AN EMERGENCY; THERE WAS NO TIME TO WAIT FOR THE ACTION OF
CONGRESS."  THE BRIEF THEN DISCUSSES THE POWERS OF THE PRESIDENT UNDER
THE CONSTITUTION IN SUCH A CASE: 

"OURS IS A SELF-SUFFICIENT GOVERNMENT WITHIN ITS SPHERE.  (EX PARTE
SIEBOLD, 100 U.S., 371, 395; IN RE DEBS, 158 U.S., 564, 578.)  'ITS
MEANS ARE ADEQUATE TO ITS ENDS' (MCCULLOCH V. MARYLAND, 4 WHEAT., 316,
424), AND IT IS RATIONAL TO ASSUME THAT ITS ACTIVE FORCES WILL BE FOUND
EQUAL IN MOST THINGS TO THE EMERGENCIES THAT CONFRONT IT.  WHILE
PERFECT FLEXIBILITY IS NOT TO BE EXPECTED IN A GOVERNMENT OF DIVIDED
POWERS, AND WHILE DIVISION OF POWER IS ONE OF THE PRINCIPAL FEATURES OF
THE CONSTITUTION, IT IS THE PLAIN DUTY OF THOSE WHO ARE CALLED UPON TO
DRAW THE DIVIDING LINES TO ASCERTAIN THE ESSENTIAL, RECOGNIZE THE
PRACTICAL, AND AVOID A SLAVISH FORMALISM WHICH CAN ONLY SERVE TO OSSIFY
THE GOVERNMENT AND REDUCE ITS EFFICIENCY WITHOUT ANY COMPENSATING
GOOD.  THE FUNCTION OF MAKING LAWS IS PECULIAR TO CONGRESS, AND THE
EXECUTIVE CAN NOT EXERCISE THAT FUNCTION TO ANY DEGREE.  BUT THIS IS
NOT TO SAY THAT ALL OF THE SUBJECTS CONCERNING WHICH LAWS MIGHT BE MADE
ARE PERFORCE REMOVED FROM THE POSSIBILITY OF EXECUTIVE INFLUENCE.  THE
EXECUTIVE MAY ACT UPON THINGS AND UPON MEN IN MANY RELATIONS WHICH HAVE
NOT, THOUGH THEY MIGHT HAVE, BEEN ACTUALLY REGULATED BY CONGRESS.  IN
OTHER WORDS, JUST AS THERE ARE FIELDS WHICH ARE PECULIAR TO CONGRESS
AND FIELDS WHICH ARE PECULIAR TO THE EXECUTIVE, SO THERE ARE FIELDS
WHICH ARE COMMON TO BOTH, IN THE SENSE THAT THE EXECUTIVE MAY MOVE
WITHIN THEM UNTIL THEY SHALL HAVE BEEN OCCUPIED BY LEGISLATIVE ACTION. 
THESE ARE NOT THE FIELDS OF LEGISLATIVE PREROGATIVE, BUT FIELDS WITHIN
WHICH THE LAWMAKING POWER MAY ENTER AND DOMINATE WHENEVER IT CHOOSES. 
THIS SITUATION RESULTS FROM THE FACT THAT THE PRESIDENT IS THE ACTIVE
AGENT, NOT OF CONGRESS, BUT OF THE NATION.  AS SUCH HE PERFORMS THE
DUTIES WHICH THE CONSTITUTION LAYS UPON HIM IMMEDIATELY, AND AS SUCH,
ALSO, HE EXECUTES THE LAWS AND REGULATIONS ADOPTED BY CONGRESS.  HE IS
THE AGENT OF THE PEOPLE OF THE UNITED STATES, DERIVING ALL HIS POWERS
FROM THEM AND RESPONSIBLE DIRECTLY TO THEM.  IN NO SENSE IS HE THE
AGENT OF CONGRESS.  HE OBEYS AND EXECUTES THE LAWS OF CONGRESS, NOT
BECAUSE CONGRESS IS ENTHRONED IN AUTHORITY OVER HIM, BUT BECAUSE THE
CONSTITUTION DIRECTS HIM TO DO SO. 

"THEREFORE IT FOLLOWS THAT IN WAYS SHORT OF MAKING LAWS OR DISOBEYING
THEM, THE EXECUTIVE MAY BE UNDER A GRAVE CONSTITUTIONAL DUTY TO ACT FOR
THE NATIONAL PROTECTION IN SITUATIONS NOT COVERED BY THE ACTS OF
CONGRESS, AND IN WHICH, EVEN, IT MAY NOT BE SAID THAT HIS ACTION IS THE
DIRECT EXPRESSION OF ANY PARTICULAR ONE OF THE INDEPENDENT POWERS WHICH
ARE GRANTED TO HIM SPECIFICALLY BY THE CONSTITUTION.  INSTANCES WHEREIN
THE PRESIDENT HAS FELT AND FULFILLED SUCH A DUTY HAVE NOT BEEN RARE IN
OUR HISTORY, THOUGH, BEING FOR THE PUBLIC BENEFIT AND APPROVED BY ALL,
HIS ACTS HAVE SELDOM BEEN CHALLENGED IN THE COURTS.  WE ARE ABLE,
HOWEVER, TO PRESENT A NUMBER OF APPOSITE CASES WHICH WERE SUBJECTED TO
JUDICIAL INQUIRY." 

THE BRIEF THEN QUOTES FROM SUCH CASES AS IN RE DEBS, SUPRA, AND IN RE
NEAGLE, SUPRA, AND CONTINUES: 

"AS WE UNDERSTAND THE DOCTRINE OF THE NEAGLE CASE, AND THE CASES
THEREIN CITED, IT IS CLEARLY THIS:  THE EXECUTIVE IS AUTHORIZED TO
EXERT THE POWER OF THE UNITED STATES WHEN HE FINDS THIS NECESSARY FOR
THE PROTECTION OF THE AGENCIES, THE INSTRUMENTALITIES, OR THE PROPERTY
OF THE GOVERNMENT.  THIS DOES NOT MEAN AN AUTHORITY TO DISREGARD THE
WISHES OF CONGRESS ON THE SUBJECT, WHEN THAT SUBJECT LIES WITHIN ITS
CONTROL AND WHEN THOSE WISHES HAVE BEEN EXPRESSED, AND IT CERTAINLY
DOES NOT INVOLVE THE SLIGHTEST SEMBLANCE OF A POWER TO LEGISLATE, MUCH
LESS TO 'SUSPEND' LEGISLATION ALREADY PASSED BY CONGRESS.  IT INVOLVES
THE PERFORMANCE OF SPECIFIC ACTS, NOT OF A LEGISLATIVE BUT PURELY OF AN
EXECUTIVE CHARACTER - ACTS WHICH ARE NOT IN THEMSELVES LAWS, BUT WHICH
PRESUPPOSE A 'LAW' AUTHORIZING HIM TO PERFORM THEM.  THIS LAW IS NOT
EXPRESSED, EITHER IN THE CONSTITUTION OR IN THE ENACTMENTS OF CONGRESS,
BUT REASON AND NECESSITY COMPEL THAT IT BE IMPLIED FROM THE EXIGENCIES
OF THE SITUATION. 

"IN NONE OF THE CASES WHICH WE HAVE MENTIONED, NOR IN THE CASES CITED
IN THE EXTRACTS TAKEN FROM THE NEAGLE CASE, WAS IT POSSIBLE TO SAY THAT
THE ACTION OF THE PRESIDENT WAS DIRECTED, EXPRESSLY OR IMPLIEDLY, BY
CONGRESS.  THE SITUATIONS DEALT WITH HAD NEVER BEEN COVERED BY ANY ACT
OF CONGRESS, AND THERE WAS NO GROUND WHATEVER FOR A CONTENTION THAT THE
POSSIBILITY OF THEIR OCCURRENCE HAD EVER BEEN SPECIFICALLY CONSIDERED
BY THE LEGISLATIVE MIND.  IN NONE OF THOSE CASES DID THE ACTION OF THE
PRESIDENT AMOUNT MERELY TO THE EXECUTION OF SOME SPECIFIC LAW. 

"NEITHER DOES ANY OF THEM STAND APART IN PRINCIPLE FROM THE CASE AT
BAR, AS INVOLVING THE EXERCISE OF SPECIFIC CONSTITUTIONAL POWERS OF THE
PRESIDENT IN A DEGREE IN WHICH THIS CASE DOES NOT INVOLVE THEM.  TAKEN
COLLECTIVELY, THE PROVISIONS OF THE CONSTITUTION WHICH DESIGNATE THE
PRESIDENT AS THE OFFICIAL WHO MUST REPRESENT US IN FOREIGN RELATIONS,
IN COMMANDING THE ARMY AND NAVY, IN KEEPING CONGRESS INFORMED OF THE
STATE OF THE UNION, IN INSURING THE FAITHFUL EXECUTION OF THE LAWS AND
IN RECOMMENDING NEW ONES, CONSIDERED IN CONNECTION WITH THE SWEEPING
DECLARATION THAT THE EXECUTIVE POWER SHALL BE VESTED IN HIM, COMPLETELY
DEMONSTRATE THAT HIS IS THE WATCHFUL EYE, THE ACTIVE HAND, THE
OVERSEEING DYNAMIC FORCE OF THE UNITED STATES."  (FN49) 

THIS BRIEF IS VALUABLE NOT ALONE BECAUSE OF THE CALIBER OF ITS
AUTHORS BUT BECAUSE IT LAYS BARE IN SUCCINCT REASONING THE BASIS OF THE
EXECUTIVE PRACTICE WHICH THIS COURT APPROVED IN THE MIDWEST OIL CASE. 

DURING WORLD WAR I, PRESIDENT WILSON ESTABLISHED A WAR LABOR BOARD
WITHOUT AWAITING SPECIFIC DIRECTION BY CONGRESS.  (FN50)  WITH WILLIAM
HOWARD TAFT AND FRANK P. WALSH AS CO-CHAIRMEN, THE BOARD HAD AS ITS
PURPOSE THE PREVENTION OF STRIKES AND LOCKOUTS INTERFERING WITH THE
PRODUCTION OF GOODS NEEDED TO MEET THE EMERGENCY.  EFFECTIVENESS OF WAR
LABOR BOARD DECISION WAS ACCOMPLISHED BY PRESIDENTIAL ACTION, INCLUDING
SEIZURE OF INDUSTRIAL PLANTS.  (FN51)  SEIZURE OF THE NATION'S
RAILROADS WAS ALSO ORDERED BY PRESIDENT WILSON.  (FN52) 

BEGINNING WITH THE BANK HOLIDAY PROCLAMATION (FN53) AND CONTINUING
THROUGH WORLD WAR II, EXECUTIVE LEADERSHIP AND INITIATIVE WERE
CHARACTERISTIC OF PRESIDENT FRANKLIN D. ROOSEVELT'S ADMINISTRATION.  IN
1939, UPON THE OUTBREAK OF WAR IN EUROPE, THE PRESIDENT PROCLAIMED A
LIMITED NATIONAL EMERGENCY FOR THE PURPOSE OF STRENGTHENING OUR
NATIONAL DEFENSE.  (FN54)  IN MAY OF 1941, THE DANGER FROM THE AXIS
BELLIGERENTS HAVING BECOME CLEAR, THE PRESIDENT PROCLAIMED "AN
UNLIMITED NATIONAL EMERGENCY" CALLING FOR MOBILIZATION OF THE NATION'S
DEFENSES TO REPEL AGGRESSION.  (FN55)  THE PRESIDENT TOOK THE
INITIATIVE IN STRENGTHENING OUR DEFENSES BY ACQUIRING RIGHTS FROM THE
BRITISH GOVERNMENT TO ESTABLISH AIR BASES IN EXCHANGE FOR OVERAGE
DESTROYERS.  (FN56) 

IN 1941, PRESIDENT ROOSEVELT ACTED TO PROTECT ICELAND FROM ATTACK BY
AXIS POWERS, WHEN BRITISH FORCES WERE WITHDRAWN, BY SENDING OUR FORCES
TO OCCUPY ICELAND.  CONGRESS WAS INFORMED OF THIS ACTION ON THE SAME
DAY THAT OUR FORCES REACHED ICELAND.  (FN57)  THE OCCUPATION OF ICELAND
WAS BUT ONE OF "AT LEAST 125 INCIDENTS" IN OUR HISTORY IN WHICH
PRESIDENTS, "WITHOUT CONGRESSIONAL AUTHORIZATION, AND IN THE ABSENCE OF
A DECLARATION OF WAR, HAVE ORDERED THE ARMED FORCES TO TAKE ACTION OR
MAINTAIN POSITIONS ABROAD."  (FN58) 

SOME SIX MONTHS BEFORE PEARL HARBOR, A DISPUTE AT A SINGLE AVIATION
PLANT AT INGLEWOOD, CALIFORNIA, INTERRUPTED A SEGMENT OF THE PRODUCTION
OF MILITARY AIRCRAFT.  IN SPITE OF THE COMPARATIVE INSIGNIFICANCE OF
THIS WORK STOPPAGE TO TOTAL DEFENSE PRODUCTION AS CONTRASTED WITH THE
COMPLETE PARALYSIS NOW THREATENED BY A SHUT-DOWN OF THE ENTIRE BASIC
STEEL INDUSTRY, AND EVEN THOUGH OUR ARMED FORCES WERE NOT THEN ENGAGED
IN COMBAT, PRESIDENT ROOSEVELT ORDERED THE SEIZURE OF THE PLANT
"PURSUANT TO THE POWERS VESTED IN HIM BY THE CONSTITUTION AND LAWS OF
THE UNITED STATES, AS PRESIDENT OF THE UNITED STATES OF AMERICA AND
COMMANDER IN CHIEF OF THE ARMY AND NAVY OF THE UNITED STATES."  (FN59)
THE ATTORNEY GENERAL (JACKSON) VIGOROUSLY PROCLAIMED THAT THE PRESIDENT
HAD THE MORAL DUTY TO KEEP THIS NATION'S DEFENSE EFFORT A "GOING
CONCERN."  HIS RINGING MORAL JUSTIFICATION WAS COUPLED WITH A LEGAL
JUSTIFICATION EQUALLY WELL STATED: 

"THE PRESIDENTIAL PROCLAMATION RESTS UPON THE AGGREGATE OF THE
PRESIDENTIAL POWERS DERIVED FROM THE CONSTITUTION ITSELF AND FROM
STATUTES ENACTED BY THE CONGRESS. 

"THE CONSTITUTION LAYS UPON THE PRESIDENT THE DUTY 'TO TAKE CARE THAT
THE LAWS BE FAITHFULLY EXECUTED.'  AMONG THE LAWS WHICH HE IS REQUIRED
TO FIND MEANS TO EXECUTE ARE THOSE WHICH DIRECT HIM TO EQUIP AN
ENLARGED ARMY, TO PROVIDE FOR A STRENGTHENED NAVY, TO PROTECT
GOVERNMENT PROPERTY, TO PROTECT THOSE WHO ARE ENGAGED IN CARRYING OUT
THE BUSINESS OF THE GOVERNMENT, AND TO CARRY OUT THE PROVISIONS OF THE
LEND-LEASE ACT.  FOR THE FAITHFUL EXECUTION OF SUCH LAWS THE PRESIDENT
HAS BACK OF HIM NOT ONLY EACH GENERAL LAW-ENFORCEMENT POWER CONFERRED
BY THE VARIOUS ACTS OF CONGRESS BUT THE AGGREGATE OF ALL SUCH LAWS PLUS
THAT WIDE DISCRETION AS TO METHOD VESTED IN HIM BY THE CONSTITUTION FOR
THE PURPOSE OF EXECUTING THE LAWS. 

"THE CONSTITUTION ALSO PLACES ON THE PRESIDENT THE RESPONSIBILITY AND
VESTS IN HIM THE POWERS OF COMMANDER IN CHIEF OF THE ARMY AND OF THE
NAVY.  THESE WEAPONS FOR THE PROTECTION OF THE CONTINUED EXISTENCE OF
THE NATION ARE PLACED IN HIS SOLE COMMAND AND THE IMPLICATION IS CLEAR
THAT HE SHOULD NOT ALLOW THEM TO BECOME PARALYZED BY FAILURE TO OBTAIN
SUPPLIES FOR WHICH CONGRESS HAS APPROPRIATED THE MONEY AND WHICH IT HAS
DIRECTED THE PRESIDENT TO OBTAIN."  (FN60) 

AT THIS TIME, SENATOR CONNALLY PROPOSED AMENDING THE SELECTIVE
TRAINING AND SERVICE ACT TO AUTHORIZE THE PRESIDENT TO SEIZE ANY PLANT
WHERE AN INTERRUPTION OF PRODUCTION WOULD UNDULY IMPEDE THE DEFENSE
EFFORT.  (FN61)  PROPONENTS OF THE MEASURE IN NO WAY IMPLIED THAT THE
LEGISLATION WOULD ADD TO THE POWERS ALREADY POSSESSED BY THE PRESIDENT
(FN62) AND THE AMENDMENT WAS OPPOSED AS UNNECESSARY SINCE THE PRESIDENT
ALREADY HAD THE POWER.  (FN63)  THE AMENDMENT RELATING TO PLANT
SEIZURES WAS NOT APPROVED AT THAT SESSION OF CONGRESS.  (FN64) 

MEANWHILE, AND ALSO PRIOR TO PEARL HARBOR, THE PRESIDENT ORDERED THE
SEIZURE OF A SHIPBUILDING COMPANY AND AN AIRCRAFT PARTS PLANT.  (FN65)
FOLLOWING THE DECLARATION OF WAR, BUT PRIOR TO THE SMITH-CONNALLY ACT
OF 1943, FIVE ADDITIONAL INDUSTRIAL CONCERNS WERE SEIZED TO AVERT
INTERRUPTION OF NEEDED PRODUCTION.  (FN66)  DURING THE SAME PERIOD, THE
PRESIDENT DIRECTED SEIZURE OF THE NATION'S COAL MINES TO REMOVE AN
OBSTRUCTION TO THE EFFECTIVE PROSECUTION OF THE WAR.  (FN67) 

THE PROCEDURES ADOPTED BY PRESIDENT ROOSEVELT CLOSELY RESEMBLED THE
METHODS EMPLOYED BY PRESIDENT WILSON.  A NATIONAL WAR LABOR BOARD, LIKE
ITS PREDECESSOR OF WORLD WAR I, WAS CREATED BY EXECUTIVE ORDER TO DEAL
EFFECTIVELY AND FAIRLY WITH DISPUTES AFFECTING DEFENSE PRODUCTION. 
(FN68)  SEIZURES WERE CONSIDERED NECESSARY, UPON DISOBEDIENCE OF WAR
LABOR BOARD ORDERS, TO ASSURE THAT THE MOBILIZATION EFFORT REMAINED A
"GOING CONCERN," AND TO ENFORCE THE ECONOMIC STABILIZATION PROGRAM. 

AT THE TIME OF THE SEIZURE OF THE COAL MINES, SENATOR CONNALLY'S BILL
TO PROVIDE A STATUTORY BASIS FOR SEIZURES AND FOR THE WAR LABOR BOARD
WAS AGAIN BEFORE CONGRESS.  AS STATED BY ITS SPONSOR, THE PURPOSE OF
THE BILL WAS NOT TO AUGMENT PRESIDENTIAL POWER, BUT TO "LET THE COUNTRY
KNOW THAT THE CONGRESS IS SQUARELY BEHIND THE PRESIDENT."  (FN69)  AS
IN THE CASE OF THE LEGISLATIVE RECOGNITION OF PRESIDENT LINCOLN'S POWER
TO SEIZE, CONGRESS AGAIN RECOGNIZED THAT THE PRESIDENT ALREADY HAD THE
NECESSARY POWER, FOR THERE WAS NO INTENTION TO "RATIFY" PAST ACTIONS OF
DOUBTFUL VALIDITY.  INDEED, WHEN SENATOR TYDINGS OFFERED AN AMENDMENT
TO THE CONNALLY BILL EXPRESSLY TO CONFIRM AND VALIDATE THE SEIZURE OF
THE COAL MINES, SPONSORS OF THE BILL OPPOSED THE AMENDMENT AS CASTING
DOUBT ON THE LEGALITY OF THE SEIZURE AND THE AMENDMENT WAS DEFEATED. 
(FN70)  WHEN THE CONNALLY BILL, S. 796, CAME BEFORE THE HOUSE, ALL
PARTS AFTER THE ENACTING CLAUSE WERE STRICKEN AND A BILL INTRODUCED BY
REPRESENTATIVE SMITH OF VIRGINIA WAS SUBSTITUTED AND PASSED.  THIS
ACTION IN THE HOUSE IS SIGNIFICANT BECAUSE THE SMITH BILL DID NOT
CONTAIN THE PROVISIONS AUTHORIZING SEIZURE BY THE PRESIDENT BUT DID
CONTAIN PROVISIONS CONTROLLING AND REGULATING ACTIVITIES IN RESPECT TO
PROPERTIES SEIZED BY THE GOVERNMENT UNDER STATUTE "OR OTHERWISE." 
(FN71)  AFTER A CONFERENCE, THE SEIZURE PROVISIONS OF THE CONNALLY
BILL, ENACTED AS THE SMITH-CONNALLY OR WAR LABOR DISPUTES ACT OF 1943,
57 STAT. 163, WERE AGREED TO BY THE HOUSE. 

FOLLOWING PASSAGE OF THE SMITH-CONNALLY ACT, SEIZURES TO ASSURE
CONTINUED PRODUCTION ON THE BASIS OF TERMS RECOMMENDED BY THE WAR LABOR
BOARD WERE BASED UPON THAT ACT AS WELL AS UPON THE PRESIDENT'S POWER
UNDER THE CONSTITUTION AND THE LAWS GENERALLY.  A QUESTION DID ARISE AS
TO WHETHER THE STATUTORY LANGUAGE RELATING TO "ANY PLANT, MINE, OR
FACILITY EQUIPPED FOR THE MANUFACTURE, PRODUCTION, OR MINING OF ANY
ARTICLES OR MATERIALS" (FN72) AUTHORIZED THE SEIZURE OF PROPERTIES OF
MONTGOMERY WARD & CO., A RETAIL DEPARTMENT STORE AND MAIL-ORDER
CONCERN.  THE ATTORNEY GENERAL (BIDDLE) ISSUED AN OPINION THAT THE
PRESIDENT POSSESSED THE POWER TO SEIZE MONTGOMERY WARD PROPERTIES TO
PREVENT A WORK STOPPAGE WHETHER OR NOT THE TERMS OF THE SMITH-CONNALLY
ACT AUTHORIZED SUCH A SEIZURE.  (FN73)  THIS OPINION WAS IN LINE WITH
THE VIEWS ON PRESIDENTIAL POWERS MAINTAINED BY THE ATTORNEY GENERAL'S
PREDECESSORS (MURPHY (FN74) AND JACKSON (FN75) ) AND HIS SUCCESSOR
(CLARK (FN76) ).  ACCORDINGLY, THE PRESIDENT ORDERED SEIZURE OF THE
CHICAGO PROPERTIES OF MONTGOMERY WARD IN APRIL, 1944, WHEN THAT COMPANY
REFUSED TO OBEY A WAR LABOR BOARD ORDER CONCERNING THE BARGAINING
REPRESENTATIVE OF ITS EMPLOYEES IN CHICAGO.  (FN77)  IN CONGRESS, A
SELECT COMMITTEE TO INVESTIGATE SEIZURE OF THE PROPERTY OF MONTGOMERY
WARD & CO., ASSUMING THAT THE TERMS OF THE SMITH-CONNALLY ACT DID NOT
COVER THIS SEIZURE, CONCLUDED THAT THE SEIZURE "WAS NOT ONLY WITHIN THE
CONSTITUTIONAL POWER BUT WAS THE PLAIN DUTY OF THE PRESIDENT."  (FN78)
THEREAFTER, AN ELECTION DETERMINED THE BARGAINING REPRESENTATIVE FOR
THE CHICAGO EMPLOYEES AND THE PROPERTIES WERE RETURNED TO MONTGOMERY
WARD & CO. IN DECEMBER, 1944, AFTER CONTINUED DEFIANCE OF A SERIES OF
WAR LABOR BOARD ORDERS, PRESIDENT ROOSEVELT ORDERED THE SEIZURE OF
MONTGOMERY WARD PROPERTIES THROUGHOUT THE COUNTRY.  (FN79)  THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT UPHELD THIS SEIZURE ON STATUTORY
GROUNDS AND ALSO INDICATED ITS DISAPPROVAL OF A LOWER COURT'S DENIAL OF
SEIZURE POWER APART FROM EXPRESS STATUTE.  (FN80) 

MORE RECENTLY, PRESIDENT TRUMAN ACTED TO REPEL AGGRESSION BY
EMPLOYING OUR ARMED FORCES IN KOREA.  (FN81)  UPON THE INTERVENTION OF
THE CHINESE COMMUNISTS, THE PRESIDENT PROCLAIMED THE EXISTENCE OF AN
UNLIMITED NATIONAL EMERGENCY REQUIRING THE SPEEDY BUILD-UP OF OUR
DEFENSE ESTABLISHMENT.  (FN82) CONGRESS RESPONDED BY PROVIDING FOR
INCREASED MANPOWER AND WEAPONS FOR OUR OWN ARMED FORCES, BY INCREASING
MILITARY AID UNDER THE MUTUAL SECURITY PROGRAM AND BY ENACTING ECONOMIC
STABILIZATION MEASURES, AS PREVIOUSLY DESCRIBED. 

THIS IS BUT A CURSORY SUMMARY OF EXECUTIVE LEADERSHIP.  BUT IT AMPLY
DEMONSTRATES THAT PRESIDENTS HAVE TAKEN PROMPT ACTION TO ENFORCE THE
LAWS AND PROTECT THE COUNTRY WHETHER OR NOT CONGRESS HAPPENED TO
PROVIDE IN ADVANCE FOR THE PARTICULAR METHOD OF EXECUTION.  AT THE
MINIMUM, THE EXECUTIVE ACTIONS REVIEWED HEREIN SUSTAIN THE ACTION OF
THE PRESIDENT IN THIS CASE.  AND MANY OF THE CITED EXAMPLES OF
PRESIDENTIAL PRACTICE GO FAR BEYOND THE EXTENT OF POWER NECESSARY TO
SUSTAIN THE PRESIDENT'S ORDER TO SEIZE THE STEEL MILLS.  THE FACT THAT
TEMPORARY EXECUTIVE SEIZURES OF INDUSTRIAL PLANTS TO MEET AN EMERGENCY
HAVE NOT BEEN DIRECTLY TESTED IN THIS COURT FURNISHES NOT THE SLIGHTEST
SUGGESTION THAT SUCH ACTIONS HAVE BEEN ILLEGAL.  RATHER, THE FACT THAT
CONGRESS AND THE COURTS HAVE CONSISTENTLY RECOGNIZED AND GIVEN THEIR
SUPPORT TO SUCH EXECUTIVE ACTION INDICATES THAT SUCH A POWER OF SEIZURE
HAS BEEN ACCEPTED THROUGHOUT OUR HISTORY. 

HISTORY BEARS OUT THE GENIUS OF THE FOUNDING FATHERS, WHO CREATED A
GOVERNMENT SUBJECT TO LAW BUT NOT LEFT SUBJECT TO INERTIA WHEN VIGOR
AND INITIATIVE ARE REQUIRED. 

                                      IV. 

FOCUSING NOW ON THE SITUATION CONFRONTING THE PRESIDENT ON THE NIGHT
OF APRIL 8, 1952, WE CANNOT BUT CONCLUDE THAT THE PRESIDENT WAS
PERFORMING HIS DUTY UNDER THE CONSTITUTION TO "TAKE CARE THAT THE LAWS
BE FAITHFULLY EXECUTED" - A DUTY DESCRIBED BY PRESIDENT BENJAMIN
HARRISON AS "THE CENTRAL IDEA OF THE OFFICE."  (FN83) 

THE PRESIDENT REPORTED TO CONGRESS THE MORNING AFTER THE SEIZURE THAT
HE ACTED BECAUSE A WORK STOPPAGE IN STEEL PRODUCTION WOULD IMMEDIATELY
IMPERIL THE SAFETY OF THE NATION BY PREVENTING EXECUTION OF THE
LEGISLATIVE PROGRAMS FOR PROCUREMENT OF MILITARY EQUIPMENT.  AND, WHILE
A SHUTDOWN COULD BE AVERTED BY GRANTING THE PRICE CONCESSIONS REQUESTED
BY PLAINTIFFS, GRANTING SUCH CONCESSIONS WOULD DISRUPT THE PRICE
STABILIZATION PROGRAM ALSO ENACTED BY CONGRESS.  RATHER THAN FAIL TO
EXECUTE EITHER LEGISLATIVE PROGRAM, THE PRESIDENT ACTED TO EXECUTE
BOTH. 

MUCH OF THE ARGUMENT IN THIS CASE HAS BEEN DIRECTED AT STRAW MEN.  WE
DO NOT NOW HAVE BEFORE US THE CASE OF A PRESIDENT ACTING SOLELY ON THE
BASIS OF HIS OWN NOTIONS OF THE PUBLIC WELFARE.  NOR IS THERE ANY
QUESTION OF UNLIMITED EXECUTIVE POWER IN THIS CASE.  THE PRESIDENT
HIMSELF CLOSED THE DOOR TO ANY SUCH CLAIM WHEN HE SENT HIS MESSAGE TO
CONGRESS STATING HIS PURPOSE TO ABIDE BY ANY ACTION OF CONGRESS,
WHETHER APPROVING OR DISAPPROVING HIS SEIZURE ACTION.  HERE, THE
PRESIDENT IMMEDIATELY MADE SURE THAT CONGRESS WAS FULLY INFORMED OF THE
TEMPORARY ACTION HE HAD TAKEN ONLY TO PRESERVE THE LEGISLATIVE PROGRAMS
FROM DESTRUCTION UNTIL CONGRESS COULD ACT. 

THE ABSENCE OF A SPECIFIC STATUTE AUTHORIZING SEIZURE OF THE STEEL
MILLS AS A MODE OF EXECUTING THE LAWS - BOTH THE MILITARY PROCUREMENT
PROGRAM AND THE ANTI-INFLATION PROGRAM - HAS NOT UNTIL TODAY BEEN
THOUGHT TO PREVENT THE PRESIDENT FROM EXECUTING THE LAWS.  UNLIKE AN
ADMINISTRATIVE COMMISSION CONFINED TO THE ENFORCEMENT OF THE STATUTE
UNDER WHICH IT WAS CREATED, OR THE HEAD OF A DEPARTMENT WHEN
ADMINISTERING A PARTICULAR STATUTE, THE PRESIDENT IS A CONSTITUTIONAL
OFFICER CHARGED WITH TAKING CARE THAT A "MASS OF LEGISLATION" BE
EXECUTED.  FLEXIBILITY AS TO MODE OF EXECUTION TO MEET CRITICAL
SITUATIONS IS A MATTER OF PRACTICAL NECESSITY.  THIS PRACTICAL
CONSTRUCTION OF THE "TAKE CARE" CLAUSE, ADVOCATED BY JOHN MARSHALL, WAS
ADOPTED BY THIS COURT IN IN RE NEAGLE, IN RE DEBS AND OTHER CASES CITED
SUPRA.  SEE ALSO EX PARTE QUIRIN, 317 U.S. 1, 26 (1942).  ALTHOUGH MORE
RESTRICTIVE VIEWS OF EXECUTIVE POWER, ADVOCATED IN DISSENTING OPINIONS
OF JUSTICES HOLMES, MCREYNOLDS AND BRANDEIS, WERE EMPHATICALLY REJECTED
BY THIS COURT IN MYERS V. UNITED STATES, SUPRA, MEMBERS OF TODAY'S
MAJORITY TREAT THESE DISSENTING VIEWS AS AUTHORITATIVE. 

THERE IS NO STATUTE PROHIBITING SEIZURE AS A METHOD OF ENFORCING
LEGISLATIVE PROGRAMS.  CONGRESS HAS IN NO WISE INDICATED THAT ITS
LEGISLATION IS NOT TO BE EXECUTED BY THE TAKING OF PRIVATE PROPERTY
(SUBJECT OF COURSE TO THE PAYMENT OF JUST COMPENSATION) IF ITS
LEGISLATION CANNOT OTHERWISE BE EXECUTED.  INDEED, THE UNIVERSAL
MILITARY TRAINING AND SERVICE ACT AUTHORIZES THE SEIZURE OF ANY PLANT
THAT FAILS TO FILL A GOVERNMENT CONTRACT (FN84) OR THE PROPERTIES OF
ANY STEEL PRODUCER THAT FAILS TO ALLOCATE STEEL AS DIRECTED FOR DEFENSE
PRODUCTION.  (FN85)  AND THE DEFENSE PRODUCTION ACT AUTHORIZES THE
PRESIDENT TO REQUISITION EQUIPMENT AND CONDEMN REAL PROPERTY NEEDED
WITHOUT DELAY IN THE DEFENSE EFFORT.  (FN86)  WHERE CONGRESS AUTHORIZES
SEIZURE IN INSTANCES NOT NECESSARILY CRUCIAL TO THE DEFENSE PROGRAM, IT
CAN HARDLY BE SAID TO HAVE DISCLOSED AN INTENTION TO PROHIBIT SEIZURES
WHERE ESSENTIAL TO THE EXECUTION OF THAT LEGISLATIVE PROGRAM. 

WHATEVER THE EXTENT OF PRESIDENTIAL POWER ON MORE TRANQUIL OCCASIONS,
AND WHATEVER THE RIGHT OF THE PRESIDENT TO EXECUTE LEGISLATIVE PROGRAMS
AS HE SEES FIT WITHOUT REPORTING THE MODE OF EXECUTION TO CONGRESS, THE
SINGLE PRESIDENTIAL PURPOSE DISCLOSED ON THIS RECORD IS TO FAITHFULLY
EXECUTE THE LAWS BY ACTING IN AN EMERGENCY TO MAINTAIN THE STATUS QUO,
THEREBY PREVENTING COLLAPSE OF THE LEGISLATIVE PROGRAMS UNTIL CONGRESS
COULD ACT.  THE PRESIDENT'S ACTION SERVED THE SAME PURPOSES AS A
JUDICIAL STAY ENTERED TO MAINTAIN THE STATUS QUO IN ORDER TO PRESERVE
THE JURISDICTION OF A COURT.  IN HIS MESSAGE TO CONGRESS IMMEDIATELY
FOLLOWING THE SEIZURE, THE PRESIDENT EXPLAINED THE NECESSITY OF HIS
ACTION IN EXECUTING THE MILITARY PROCUREMENT AND ANTI-INFLATION
LEGISLATIVE PROGRAMS AND EXPRESSED HIS DESIRE TO COOPERATE WITH ANY
LEGISLATIVE PROPOSALS APPROVING, REGULATING OR REJECTING THE SEIZURE OF
THE STEEL MILLS.  CONSEQUENTLY, THERE IS NO EVIDENCE WHATEVER OF ANY
PRESIDENTIAL PURPOSE TO DEFY CONGRESS OR ACT IN ANY WAY INCONSISTENT
WITH THE LEGISLATIVE WILL. 

IN UNITED STATES V. MIDWEST OIL CO., SUPRA, THIS COURT APPROVED
EXECUTIVE ACTION WHERE, AS HERE, THE PRESIDENT ACTED TO PRESERVE AN
IMPORTANT MATTER UNTIL CONGRESS COULD ACT - EVEN THOUGH HIS ACTION IN
THAT CASE WAS CONTRARY TO AN EXPRESS STATUTE.  IN THIS CASE, THERE IS
NO STATUTE PROHIBITING THE ACTION TAKEN BY THE PRESIDENT IN A MATTER
NOT MERELY IMPORTANT BUT THREATENING THE VERY SAFETY OF THE NATION. 
EXECUTIVE INACTION IN SUCH A SITUATION, COURTING NATIONAL DISASTER, IS
FOREIGN TO THE CONCEPT OF ENERGY AND INITIATIVE IN THE EXECUTIVE AS
CREATED BY THE FOUNDING FATHERS.  THE CONSTITUTION WAS ITSELF "ADOPTED
IN A PERIOD OF GRAVE EMERGENCY  ...  .  WHILE EMERGENCY DOES NOT CREATE
POWER, EMERGENCY MAY FURNISH THE OCCASION FOR THE EXERCISE OF POWER." 
(FN87)  THE FRAMERS KNEW, AS WE SHOULD KNOW IN THESE TIMES OF PERIL,
THAT THERE IS REAL DANGER IN EXECUTIVE WEAKNESS.  THERE IS NO CAUSE TO
FEAR EXECUTIVE TYRANNY SO LONG AS THE LAWS OF CONGRESS ARE BEING
FAITHFULLY EXECUTED.  CERTAINLY THERE IS NO BASIS FOR FEAR OF
DICTATORSHIP WHEN THE EXECUTIVE ACTS, AS HE DID IN THIS CASE, ONLY TO
SAVE THE SITUATION UNTIL CONGRESS COULD ACT. 

                                         V. 

PLAINTIFFS PLACE THEIR PRIMARY EMPHASIS ON THE LABOR MANAGEMENT
RELATIONS ACT OF 1947, HEREINAFTER REFERRED TO AS THE TAFT-HARTLEY ACT,
BUT DO NOT CONTEND THAT THAT ACT CONTAINS ANY PROVISION PROHIBITING
SEIZURE. 

UNDER THE TAFT-HARTLEY ACT, AS UNDER THE WAGNER ACT, COLLECTIVE
BARGAINING AND THE RIGHT TO STRIKE ARE AT THE HEART OF OUR NATIONAL
LABOR POLICY.  TAFT-HARTLEY PRESERVES THE RIGHT TO STRIKE IN ANY
EMERGENCY, HOWEVER SERIOUS, SUBJECT ONLY TO AN 80-DAY DELAY IN CASES OF
STRIKES IMPERILING THE NATIONAL HEALTH AND SAFETY.  (FN88)  IN SUCH A
CASE, THE PRESIDENT MAY APPOINT A BOARD OF INQUIRY TO REPORT THE FACTS
OF THE LABOR DISPUTE.  UPON RECEIVING THAT REPORT, THE PRESIDENT MAY
DIRECT THE ATTORNEY GENERAL TO PETITION A DISTRICT COURT TO ENJOIN THE
STRIKE.  IF THE INJUNCTION IS GRANTED, IT MAY CONTINUE IN EFFECT FOR NO
MORE THAN 80 DAYS, DURING WHICH TIME THE BOARD OF INQUIRY MAKES FURTHER
REPORT AND EFFORTS ARE MADE TO SETTLE THE DISPUTE.  WHEN THE INJUNCTION
IS DISSOLVED, THE PRESIDENT IS DIRECTED TO SUBMIT A REPORT TO CONGRESS
TOGETHER WITH HIS RECOMMENDATIONS.  (FN89) 

ENACTED AFTER WORLD WAR II, TAFT-HARTLEY RESTRICTS THE RIGHT TO
STRIKE AGAINST PRIVATE EMPLOYERS ONLY TO A LIMITED EXTENT AND FOR THE
SOLE PURPOSE OF AFFORDING AN ADDITIONAL PERIOD OF TIME WITHIN WHICH TO
SETTLE THE DISPUTE.  TAFT-HARTLEY IN NO WAY CURBS STRIKES BEFORE AN
INJUNCTION CAN BE OBTAINED AND AFTER AN 80-DAY INJUNCTION IS
DISSOLVED. 

PLAINTIFFS ADMIT THAT THE EMERGENCY PROCEDURES OF TAFT-HARTLEY ARE
NOT MANDATORY.  NEVERTHELESS, PLAINTIFFS APPARENTLY ARGUE THAT, SINCE
CONGRESS DID PROVIDE THE 80-DAY INJUNCTION METHOD FOR DEALING WITH
EMERGENCY STRIKES, THE PRESIDENT CANNOT CLAIM THAT AN EMERGENCY EXISTS
UNTIL THE PROCEDURES OF TAFT-HARTLEY HAVE BEEN EXHAUSTED.  THIS
ARGUMENT WAS NOT THE BASIS OF THE DISTRICT COURT'S OPINION AND,
WHATEVER MERIT THE ARGUMENT MIGHT HAVE HAD FOLLOWING THE ENACTMENT OF
TAFT-HARTLEY, IT LOSES ALL FORCE WHEN VIEWED IN LIGHT OF THE STATUTORY
PATTERN CONFRONTING THE PRESIDENT IN THIS CASE. 

IN TITLE V OF THE DEFENSE PRODUCTION ACT OF 1950, (FN90) CONGRESS
STATED: 

"IT IS THE INTENT OF CONGRESS, IN ORDER TO PROVIDE FOR EFFECTIVE
PRICE AND WAGE STABILIZATION PURSUANT TO TITLE IV OF THIS ACT AND TO
MAINTAIN UNINTERRUPTED PRODUCTION, THAT THERE BE EFFECTIVE PROCEDURES
FOR THE SETTLEMENT OF LABOR DISPUTES AFFECTING NATIONAL DEFENSE." 
(SEC. 501.) 

TITLE V AUTHORIZED THE PRESIDENT TO INITIATE LABOR-MANAGEMENT
CONFERENCES AND TO TAKE ACTION APPROPRIATE TO CARRYING OUT THE
RECOMMENDATIONS OF SUCH CONFERENCES AND THE PROVISIONS OF TITLE V.
(SEC. 502.)  DUE REGARD IS TO BE GIVEN TO COLLECTIVE BARGAINING
PRACTICE AND STABILIZATION POLICIES AND NO ACTION TAKEN IS TO BE
INCONSISTENT WITH TAFT-HARTLEY AND OTHER LAWS.  (SEC. 503.)  THE
PURPOSE OF THESE PROVISIONS WAS TO AUTHORIZE THE PRESIDENT "TO
ESTABLISH A BOARD, COMMISSION OR OTHER AGENCY, SIMILAR TO THE WAR LABOR
BOARD OF WORLD WAR II, TO CARRY OUT THE TITLE."  (FN91)    THE
PRESIDENT AUTHORIZED THE WAGE STABILIZATION BOARD (WSB), WHICH
ADMINISTERS THE WAGE STABILIZATION FUNCTIONS OF TITLE IV OF THE DEFENSE
PRODUCTION ACT, ALSO TO DEAL WITH LABOR DISPUTES AFFECTING THE DEFENSE
PROGRAM.  (FN92)  WHEN EXTENSION OF THE DEFENSE PRODUCTION ACT WAS
BEFORE CONGRESS IN 1951, THE CHAIRMAN OF THE WAGE STABILIZATION BOARD
DESCRIBED IN DETAIL THE RELATIONSHIP BETWEEN THE TAFT-HARTLEY
PROCEDURES APPLICABLE TO LABOR DISPUTES IMPERILING THE NATIONAL HEALTH
AND SAFETY AND THE NEW WSB DISPUTES PROCEDURES ESPECIALLY DEVISED FOR
SETTLEMENT OF LABOR DISPUTES GROWING OUT OF THE NEEDS OF THE DEFENSE
PROGRAM.  (FN93)  AWARE THAT A TECHNIQUE SEPARATE FROM TAFT-HARTLEY HAD
BEEN DEVISED, MEMBERS OF CONGRESS ATTEMPTED TO DIVEST THE WSB OF ITS
DISPUTES POWERS.  THESE ATTEMPTS WERE DEFEATED IN THE HOUSE, WERE NOT
BROUGHT TO A VOTE IN THE SENATE, AND THE DEFENSE PRODUCTION ACT WAS
EXTENDED THROUGH JUNE 30, 1952, WITHOUT CHANGE IN THE DISPUTES POWERS
OF THE WSB.  (FN94)  CERTAINLY THIS LEGISLATIVE CREATION OF A NEW
PROCEDURE FOR DEALING WITH DEFENSE DISPUTES NEGATIVES ANY NOTION THAT
CONGRESS INTENDED THE EARLIER AND DISCRETIONARY TAFT-HARTLEY PROCEDURE
TO BE AN EXCLUSIVE PROCEDURE. 

ACCORDINGLY, AS OF DECEMBER 22, 1951, THE PRESIDENT HAD A CHOICE
BETWEEN ALTERNATE PROCEDURES FOR SETTLING THE THREATENED STRIKE IN THE
STEEL MILLS:  ONE ROUTE CREATED TO DEAL WITH PEACETIME DISPUTES; THE
OTHER ROUTE SPECIALLY CREATED TO DEAL WITH DISPUTES GROWING OUT OF THE
DEFENSE AND STABILIZATION PROGRAM.  THERE IS NO QUESTION OF BY-PASSING
A STATUTORY PROCEDURE BECAUSE BOTH OF THE ROUTES AVAILABLE TO THE
PRESIDENT IN DECEMBER WERE BASED UPON STATUTORY AUTHORIZATION.  BOTH
ROUTES WERE AVAILABLE IN THE STEEL DISPUTE.  THE UNION, BY REFUSING TO
ABIDE BY THE DEFENSE AND STABILIZATION PROGRAM, COULD HAVE FORCED THE
PRESIDENT TO INVOKE TAFT-HARTLEY AT THAT TIME TO DELAY THE STRIKE A
MAXIMUM OF 80 DAYS.  INSTEAD, THE UNION AGREED TO COOPERATE WITH THE
DEFENSE PROGRAM AND SUBMIT THE DISPUTE TO THE WAGE STABILIZATION
BOARD. 

PLAINTIFFS HAD NO OBJECTION WHATEVER AT THAT TIME TO THE PRESIDENT'S
CHOICE OF THE WSB ROUTE.  AS A RESULT, THE STRIKE WAS POSTPONED, A WSB
PANEL HELD HEARINGS AND REPORTED THE POSITION OF THE PARTIES AND THE
WSB RECOMMENDED THE TERMS OF A SETTLEMENT WHICH IT FOUND WERE FAIR AND
EQUITABLE.  MOREOVER, THE WSB PERFORMED A FUNCTION WHICH THE BOARD OF
INQUIRY CONTEMPLATED BY TAFT-HARTLEY COULD NOT HAVE ACCOMPLISHED WHEN
IT CHECKED THE RECOMMENDED WAGE SETTLEMENT AGAINST ITS OWN WAGE
STABILIZATION REGULATIONS ISSUED PURSUANT TO ITS STABILIZATION
FUNCTIONS UNDER TITLE IV OF THE DEFENSE PRODUCTION ACT.  THEREAFTER,
THE PARTIES BARGAINED ON THE BASIS OF THE WSB RECOMMENDATION. 

WHEN THE PRESIDENT ACTED ON APRIL 8, HE HAD EXHAUSTED THE PROCEDURES
FOR SETTLEMENT AVAILABLE TO HIM.  TAFT-HARTLEY WAS A ROUTE PARALLEL TO,
NOT CONNECTED WITH, THE WSB PROCEDURE.  THE STRIKE HAD BEEN DELAYED 99
DAYS AS CONTRASTED WITH THE MAXIMUM DELAY OF 80 DAYS UNDER TAFT
HARTLEY.  THERE HAD BEEN A HEARING ON THE ISSUES IN DISPUTE AND
BARGAINING WHICH PROMISED SETTLEMENT UP TO THE VERY HOUR BEFORE SEIZURE
HAD BROKEN DOWN.  FACED WITH IMMEDIATE NATIONAL PERIL THROUGH STOPPAGE
IN STEEL PRODUCTION ON THE ONE HAND AND FACED WITH DESTRUCTION OF THE
WAGE AND PRICE LEGISLATIVE PROGRAMS ON THE OTHER, THE PRESIDENT TOOK
TEMPORARY POSSESSION OF THE STEEL MILLS AS THE ONLY COURSE OPEN TO HIM
CONSISTENT WITH HIS DUTY TO TAKE CARE THAT THE LAWS BE FAITHFULLY
EXECUTED. 

PLAINTIFFS' PROPERTY WAS TAKEN AND PLACED IN THE POSSESSION OF THE
SECRETARY OF COMMERCE TO PREVENT ANY INTERRUPTION IN STEEL PRODUCTION. 
IT MADE NO DIFFERENCE WHETHER THE STOPPAGE WAS CAUSED BY A UNION
MANAGEMENT DISPUTE OVER TERMS AND CONDITIONS OF EMPLOYMENT, A UNION
GOVERNMENT DISPUTE OVER WAGE STABILIZATION OR A MANAGEMENT-GOVERNMENT
DISPUTE OVER PRICE STABILIZATION.  THE PRESIDENT'S ACTION HAS THUS FAR
BEEN EFFECTIVE, NOT IN SETTLING THE DISPUTE, BUT IN SAVING THE VARIOUS
LEGISLATIVE PROGRAMS AT STAKE FROM DESTRUCTION UNTIL CONGRESS COULD ACT
IN THE MATTER. 

                     VI. 

THE DIVERSITY OF VIEWS EXPRESSED IN THE SIX OPINIONS OF THE MAJORITY,
THE LACK OF REFERENCE TO AUTHORITATIVE PRECEDENT, THE REPEATED RELIANCE
UPON PRIOR DISSENTING OPINIONS, THE COMPLETE DISREGARD OF THE
UNCONTROVERTED FACTS SHOWING THE GRAVITY OF THE EMERGENCY AND THE
TEMPORARY NATURE OF THE TAKING ALL SERVE TO DEMONSTRATE HOW FAR AFIELD
ONE MUST GO TO AFFIRM THE ORDER OF THE DISTRICT COURT. 

THE BROAD EXECUTIVE POWER GRANTED BY ARTICLE II TO AN OFFICER ON DUTY
365 DAYS A YEAR CANNOT, IT IS SAID, BE INVOKED TO AVERT DISASTER. 
INSTEAD, THE PRESIDENT MUST CONFINE HIMSELF TO SENDING A MESSAGE TO
CONGRESS RECOMMENDING ACTION.  UNDER THIS MESSENGER-BOY CONCEPT OF THE
OFFICE, THE PRESIDENT CANNOT EVEN ACT TO PRESERVE LEGISLATIVE PROGRAMS
FROM DESTRUCTION SO THAT CONGRESS WILL HAVE SOMETHING LEFT TO ACT
UPON.  THERE IS NO JUDICIAL FINDING THAT THE EXECUTIVE ACTION WAS
UNWARRANTED BECAUSE THERE WAS IN FACT NO BASIS FOR THE PRESIDENT'S
FINDING OF THE EXISTENCE OF AN EMERGENCY (FN95) FOR, UNDER THIS VIEW,
THE GRAVITY OF THE EMERGENCY AND THE IMMEDIACY OF THE THREATENED
DISASTER ARE CONSIDERED IRRELEVANT AS A MATTER OF LAW. 

SEIZURE OF PLAINTIFFS' PROPERTY IS NOT A PLEASANT UNDERTAKING. 
SIMILARLY UNPLEASANT TO A FREE COUNTRY ARE THE DRAFT WHICH DISRUPTS THE
HOME AND MILITARY PROCUREMENT WHICH CAUSES ECONOMIC DISLOCATION AND
COMPELS ADOPTION OF PRICE CONTROLS, WAGE STABILIZATION AND ALLOCATION
OF MATERIALS.  THE PRESIDENT INFORMED CONGRESS THAT EVEN A TEMPORARY
GOVERNMENT OPERATION OF PLAINTIFFS' PROPERTIES WAS "THOROUGHLY
DISTASTEFUL" TO HIM, BUT WAS NECESSARY TO PREVENT IMMEDIATE PARALYSIS
OF THE MOBILIZATION PROGRAM.  PRESIDENTS HAVE BEEN IN THE PAST, AND ANY
MAN WORTHY OF THE OFFICE SHOULD BE IN THE FUTURE, FREE TO TAKE AT LEAST
INTERIM ACTION NECESSARY TO EXECUTE LEGISLATIVE PROGRAMS ESSENTIAL TO
SURVIVAL OF THE NATION.  A STURDY JUDICIARY SHOULD NOT BE SWAYED BY THE
UNPLEASANTNESS OR UNPOPULARITY OF NECESSARY EXECUTIVE ACTION, BUT MUST
INDEPENDENTLY DETERMINE FOR ITSELF WHETHER THE PRESIDENT WAS ACTING, AS
REQUIRED BY THE CONSTITUTION, TO "TAKE CARE THAT THE LAWS BE FAITHFULLY
EXECUTED." 

AS THE DISTRICT JUDGE STATED, THIS IS NO TIME FOR "TIMOROUS" JUDICIAL
ACTION.  BUT NEITHER IS THIS A TIME FOR TIMOROUS EXECUTIVE ACTION. 
FACED WITH THE DUTY OF EXECUTING THE DEFENSE PROGRAMS WHICH CONGRESS
HAD ENACTED AND THE DISASTROUS EFFECTS THAT ANY STOPPAGE IN STEEL
PRODUCTION WOULD HAVE ON THOSE PROGRAMS, THE PRESIDENT ACTED TO
PRESERVE THOSE PROGRAMS BY SEIZING THE STEEL MILLS.  THERE IS NO
QUESTION THAT THE POSSESSION WAS OTHER THAN TEMPORARY IN CHARACTER AND
SUBJECT TO CONGRESSIONAL DIRECTION - EITHER APPROVING, DISAPPROVING OR
REGULATING THE MANNER IN WHICH THE MILLS WERE TO BE ADMINISTERED AND
RETURNED TO THE OWNERS.  THE PRESIDENT IMMEDIATELY INFORMED CONGRESS OF
HIS ACTION AND CLEARLY STATED HIS INTENTION TO ABIDE BY THE LEGISLATIVE
WILL.  NO BASIS FOR CLAIMS OF ARBITRARY ACTION, UNLIMITED POWERS OR
DICTATORIAL USURPATION OF CONGRESSIONAL POWER APPEARS FROM THE FACTS OF
THIS CASE.  ON THE CONTRARY, JUDICIAL, LEGISLATIVE AND EXECUTIVE
PRECEDENTS THROUGHOUT OUR HISTORY DEMONSTRATE THAT IN THIS CASE THE
PRESIDENT ACTED IN FULL CONFORMITY WITH HIS DUTIES UNDER THE
CONSTITUTION.  ACCORDINGLY, WE WOULD REVERSE THE ORDER OF THE DISTRICT
COURT. 

FN1  59 STAT. 1031, 1037 (1945); 91 CONG. REC. 8190 (1945). 

FN2  U.N. SECURITY COUNCIL, U.N. DOC. S/1501 (1950); STATEMENT BY THE
PRESIDENT, JUNE 26, 1950, UNITED STATES POLICY IN THE KOREAN CRISIS,
DEPT. OF STATE PUB. (1950), 16. 

FN3  U.N. GENERAL ASSEMBLY, U.N. DOC. A/1771 (1951). 

FN4  61 STAT. 103 (1947). 

FN5  62 STAT. 137 (1948), AS AMENDED, 63 STAT. 50 (1949), 64 STAT.
198 (1950). 

FN6  63 STAT. 2241, 2252 (1949), EXTENDED TO GREECE AND TURKEY, S.
EXEC. E, 82D CONG., 2D SESS. (1952), ADVICE AND CONSENT OF THE SENATE
GRANTED.  98 CONG. REC. 930. 

FN7  63 STAT. 714 (1949). 

FN8  S. EXECS.  A, B, C AND D, 82D CONG., 2D SESS. (1952), ADVICE AND
CONSENT OF THE SENATE GRANTED.  98 CONG. REC. 2594, 2595, 2605. 

FN9  65 STAT. 373 (1951). 

FN10  65 STAT. 730 (1951); SEE H.R. DOC. NO. 147, 82D CONG., 1ST
SESS. 3 (1951). 

FN11  SEE H.R. DOC. NO. 382, 82D CONG., 2D SESS. (1952). 

FN12  HEARINGS BEFORE SENATE COMMITTEE ON FOREIGN RELATIONS ON THE
MUTUAL SECURITY ACT OF 1952, 82D CONG., 2D SESS. 565-566 (1952);
HEARINGS BEFORE HOUSE COMMITTEE ON FOREIGN AFFAIRS ON THE MUTUAL
SECURITY ACT OF 1952, 82D CONG., 2D SESS. 370 (1952). 

FN13  65 STAT. 75 (1951); S. REP. NO. 117, 82D CONG., 1ST SESS. 3
(1951). 

FN14 ADDRESS BY SECRETARY OF DEFENSE LOVETT BEFORE THE AMERICAN
SOCIETY OF NEWSPAPER EDITORS, WASHINGTON, APRIL 18, 1952. 

FN15  FISCAL YEAR 1952, 65 STAT. 423, 760 (1951); F.Y. 1951, 64 STAT.
595, 1044, 1223, 65 STAT. 48 (1950-1951); F.Y. 1950, 63 STAT. 869, 973,
987 (1949); F.Y. 1949, 62 STAT.  647 (1948); F.Y. 1948, 61 STAT. 551
(1947). 

FN16  SEE H.R. REP. NO. 1685, 82D CONG., 2D SESS. 2 (1952), ON H.R.
7391. 

FN17  SEE H.R. REP. NO. 384, 82D CONG., 1ST SESS. 5 (1951); 97 CONG.
REC. 13647-13649. 

FN18  DEFENSE PRODUCTION ACT, TIT. III.  64 STAT. 798, 800 (1950), 65
STAT. 138 (1951). 

FN19  NOTE 18, SUPRA, TITS.  IV AND V. 

FN20  S. REP. NO. 470, 82D CONG., 1ST SESS. 8 (1951). 

FN21  ID., AT 8-9. 

FN22  EXEC. ORDER 10340, 17 FED. REG. 3139 (1952). 

FN23  CONG. REC., APRIL 9, 1952, PP. 3962-3963. 

FN24  CONG. REC., APRIL 21, 1952, P. 4192. 

FN25  CHICAGO & SOUTHERN AIR LINES V. WATERMAN S.S. CORP., 333 U.S.
103, 111 (1948), AND CASES CITED. 

FN26  THE FEDERALIST, NO. XLVIII. 

FN27  THE FEDERALIST, NO. LXX. 

FN28  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 415, 424 (1819). 

FN29  UNITED STATES V. CLASSIC, 313 U.S. 299, 315-316 (1941); HOME
BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 442-443 (1934). 

FN30  4 ANNALS OF CONGRESS 1411, 1413 (1794). 

FN31  IV WORKS OF HAMILTON (LODGE ED. 1904) 432-444. 

FN32  10 ANNALS OF CONGRESS 596, 613-614 (1800); ALSO PRINTED IN 5
WHEAT., APP. PP. 3, 27 (1820). 

FN33  10 ANNALS OF CONGRESS 619 (1800). 

FN34  FONG YUE TING V. UNITED STATES, 149 U.S. 698, 714 (1893). 

FN35  SEE PRIZE CASES, 2 BLACK 635 (1863); RANDALL, CONSTITUTIONAL
PROBLEMS UNDER LINCOLN (1926); CORWIN, THE PRESIDENT:  OFFICE AND
POWERS (1948 ED.), 277-281. 

FN36  WAR OF THE REBELLION, OFFICIAL RECORDS OF THE UNION AND
CONFEDERATE ARMIES, SERIES I, VOL. II (1880), PP. 603-604. 

FN37  12 STAT. 334 (1862). 

FN38  SENATOR WADE, CONG. GLOBE, 37TH CONG., 2D SESS. 509 (1862);
REP. BLAIR, ID., AT 548. 

FN39  SENATORS BROWNING, FESSENDEN, COWAN, GRIMES, ID., AT 510, 512,
516, 520. 

FN40  IN 1818, THE HOUSE COMMITTEE ON MILITARY AFFAIRS RECOMMENDED
PAYMENT OF COMPENSATION FOR VESSELS SEIZED BY THE ARMY DURING THE WAR
OF 1812.  AMERICAN STATE PAPERS, CLAIMS (1834), 649.  MITCHELL V.
HARMONY, 13 HOW.  115, 134 (1852), INVOLVING SEIZURE OF A WAGON TRAIN
BY AN ARMY OFFICER DURING THE MEXICAN WAR, NOTED THAT SUCH EXECUTIVE
SEIZURE WAS PROPER IN CASE OF EMERGENCY, BUT AFFIRMED A PERSONAL
JUDGMENT AGAINST THE OFFICER ON THE GROUND THAT NO EMERGENCY HAD BEEN
FOUND TO EXIST.  THE JUDGMENT WAS PAID BY THE UNITED STATES PURSUANT TO
ACT OF CONGRESS.  10 STAT. 727 (1852). 

FN41  13 WALL., AT 627-628.  SUCH A COMPENSABLE TAKING WAS SOON
DISTINGUISHED FROM THE NONCOMPENSABLE TAKING AND DESTRUCTION OF
PROPERTY DURING THE EXTREME EXIGENCIES OF A MILITARY CAMPAIGN.  UNITED
STATES V. PACIFIC R. CO., 120 U.S. 227 (1887). 

FN42  135 U.S., AT 64. 

FN43  RICH, THE PRESIDENTS AND CIVIL DISORDER (1941), 72-86. 

FN44 CLEVELAND, THE GOVERNMENT IN THE CHICAGO STRIKE OF 1894 (1913). 

FN45  26 CONG. REC. 7281-7284, 7544-7546 (1894). 

FN46  THEODORE ROOSEVELT, AUTOBIOGRAPHY (1916 ED.), 479-491. 

FN47  ID., AT 378. 

FN48  HUMPHREY'S EXECUTOR V. UNITED STATES, 295 U.S. 602, 626 (1935),
DISAPPROVED EXPRESSIONS IN THE MYERS OPINION ONLY TO THE EXTENT THAT
THEY RELATED TO THE PRESIDENT'S POWER TO REMOVE MEMBERS OF QUASI
LEGISLATIVE AND QUASI-JUDICIAL COMMISSIONS AS CONTRASTED WITH EXECUTIVE
EMPLOYEES. 

FN49  BRIEF FOR THE UNITED STATES, NO. 278, OCTOBER TERM, 1914, PP.
11, 75-77, 88-90. 

FN50  NATIONAL WAR LABOR BOARD.  BUREAU OF LABOR STATISTICS, BULL. 
287 (1921). 

FN51  ID., AT 24-25, 32-34.  SEE ALSO, 2 OFFICIAL U.S. BULL.  (1918),
NO. 412; 8 BAKER, WOODROW WILSON, LIFE & LETTERS (1939), 400-402;
BERMAN, LABOR DISPUTES AND THE PRESIDENT (1924), 125-153; PRINGLE, THE
LIFE AND TIMES OF WILLIAM HOWARD TAFT (1939), 915-925. 

FN52  39 STAT. 619, 645 (1916), PROVIDES THAT THE PRESIDENT MAY TAKE
POSSESSION OF ANY SYSTEM OF TRANSPORTATION IN TIME OF WAR.  FOLLOWING
SEIZURE OF THE RAILROADS BY PRESIDENT WILSON, CONGRESS ENACTED DETAILED
LEGISLATION REGULATING THE MODE OF FEDERAL CONTROL.  40 STAT. 451
(1918). 

WHEN CONGRESS WAS CONSIDERING THE STATUTE AUTHORIZING THE PRESIDENT
TO SEIZE COMMUNICATIONS SYSTEMS WHENEVER HE DEEMED SUCH ACTION
NECESSARY DURING THE WAR, 40 STAT. 904 (1918), SENATOR (LATER
PRESIDENT) HARDING OPPOSED ON THE GROUND THAT THERE WAS NO NEED FOR
SUCH STAND-BY POWERS BECAUSE, IN EVENT OF A PRESENT NECESSITY, THE
CHIEF EXECUTIVE "OUGHT TO" SEIZE COMMUNICATIONS LINES, "ELSE HE WOULD
BE UNFAITHFUL TO HIS DUTIES AS SUCH CHIEF EXECUTIVE."  56 CONG. REC.
9064 (1918). 

FN53  48 STAT. 1689 (1933). 

FN54  54 STAT. 2643 (1939). 

FN55  55 STAT. 1647 (1941). 

FN56  86 CONG. REC. 11354 (1940)(MESSAGE OF THE PRESIDENT).  SEE 39
OP. ATTY. GEN.  484 (1940).  ATTORNEY GENERAL JACKSON'S OPINION DID NOT
EXTEND TO THE TRANSFER OF "MOSQUITO BOATS," SOLELY BECAUSE AN EXPRESS
STATUTORY PROHIBITION ON TRANSFER WAS APPLICABLE. 

FN57 87 CONG. REC. 5868 (1941)(MESSAGE OF THE PRESIDENT).    FN58
POWERS OF THE PRESIDENT TO SEND THE ARMED FORCES OUTSIDE THE UNITED
STATES, REPORT PREPARED BY EXECUTIVE DEPARTMENT FOR USE OF JOINT
COMMITTEE OF SENATE COMMITTEES ON FOREIGN RELATIONS AND ARMED SERVICES,
82D CONG., 1ST SESS., COMMITTEE PRINT, 2 (1951). 

FN59  EXEC. ORDER 8773, 6 FED. REG. 2777 (1941). 

FN60  SEE 89 CONG. REC. 3992 (1943).  THE ATTORNEY GENERAL ALSO NOTED
THAT THE DISPUTE AT NORTH AMERICAN AVIATION WAS COMMUNIST INSPIRED AND
MORE NEARLY RESEMBLED AN INSURRECTION THAN A LABOR STRIKE.  THE
RELATIVE SIZE OF NORTH AMERICAN AVIATION AND THE IMPACT OF AN
INTERRUPTION IN PRODUCTION UPON OUR DEFENSE EFFORT WERE NOT DESCRIBED. 
FN61  87 CONG. REC. 4932 (1941).  SEE ALSO S. 1600 AND S. 2054, 77TH
CONG., 1ST SESS.  (1941). 

FN62  REPS.  MAY, WHITTINGTON; 87 CONG. REC. 5895, 5972 (1941). 

FN63  REPS.  DWORSHAK, FEDDIS, HARTER, DIRKSEN, HOOK; 87 CONG. REC.
5901, 5910, 5974, 5975 (1941). 

FN64  THE PLANT SEIZURE AMENDMENT PASSED THE SENATE, BUT WAS REJECTED
IN THE HOUSE AFTER A CONFERENCE COMMITTEE ADOPTED THE AMENDMENT.  87
CONG. REC. 6424 (1941). 

FN65  EXEC. ORDER 8868, 6 FED. REG. 4349 (1941); EXEC. ORDER 8928, 6
FED. REG. 5559 (1941). 

FN66  EXEC. ORDER 9141, 7 FED. REG. 2961 (1942); EXEC. ORDER 9220, 7
FED. REG. 6413 (1942); EXEC. ORDER 9225, 7 FED. REG. 6627 (1942); EXEC.
ORDER 9254, 7 FED. REG. 8333 (1942); EXEC. ORDER 9351, 8 FED. REG. 8097
(1943). 

FN67  EXEC. ORDER 9340, 8 FED. REG. 5695 (1943). 

FN68  EXEC. ORDER 9017, 7 FED. REG. 237 (1942); 1 TERMINATION REPORT
OF THE NATIONAL WAR LABOR BOARD 5-11. 

FN69  89 CONG. REC. 3807 (1943).  SIMILAR VIEWS OF THE PRESIDENT'S
EXISTING POWER WERE EXPRESSED BY SENATORS LUCAS, WHEELER, AUSTIN AND
BARKLEY.  ID., AT 3885-3887, 3896, 3992. 

FN70  89 CONG. REC. 3989-3992 (1943). 

FN71  S. 796, 78TH CONG., 1ST SESS., SECS. 12, 13 (1943), AS PASSED
BY THE HOUSE. 

FN72  57 STAT. 163, 164 (1943). 

FN73  40 OP. ATTY. GEN. 312 (1944).  SEE ALSO HEARINGS BEFORE HOUSE
SELECT COMMITTEE TO INVESTIGATE SEIZURE OF MONTGOMERY WARD & CO., 78TH
CONG., 2D SESS. 117-132 (1944). 

FN74  39 OP. ATTY. GEN. 343, 347 (1939). 

FN75  NOTE 60, SUPRA. 

FN76  LETTER INTRODUCED IN HEARINGS BEFORE SENATE COMMITTEE ON LABOR
AND PUBLIC WELFARE ON S. 249, 81ST CONG., 1ST SESS. 232 (1949) POINTING
TO THE "EXCEEDINGLY GREAT" POWERS OF THE PRESIDENT TO DEAL WITH
EMERGENCIES EVEN BEFORE THE KOREAN CRISIS. 

FN77  EXEC. ORDER 9438, 9 FED. REG. 4459 (1944). 

FN78  H.R. REP. NO. 1904, 78TH CONG., 2D SESS. 25 (1944)(THE
COMMITTEE DIVIDED ALONG PARTY LINES). 

FN79  EXEC. ORDER 9508, 9 FED. REG. 15079 (1944). 

FN80  UNITED STATES V. MONTGOMERY WARD & CO., 150 F.2D 369 (C.A. 7TH
CIR. 1945), REVERSING 58 F. SUPP. 408 (N.D. ILL. 1945).  SEE ALSO KEN
RAD TUBE & LAMP CORP. V. BADEAU, 55 F. SUPP. 193, 197-199 (W.D. KY.
1944), WHERE THE COURT HELD THAT A SEIZURE WAS PROPER WITH OR WITHOUT
EXPRESS STATUTORY AUTHORIZATION. 

FN81  UNITED STATES POLICY IN THE KOREAN CRISIS (1950), DEPT. OF
STATE PUB. 3922. 

FN82  15 FED. REG. 9029 (1950). 

FN83  HARRISON, THIS COUNTRY OF OURS (1897), 98. 

FN84  62 STAT. 604, 626 (1948), 50 U.S.C. APP. (SUPP. IV) SEC.
468(C). 

FN85  62 STAT. 604, 627 (1948), 50 U.S.C. APP. (SUPP. IV) SEC.
468(H)(1). 

FN86  TIT. II, 64 STAT. 798, 799 (1950), AS AMENDED, 65 STAT. 138
(1951). 

FN87  HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 425-426
(1934). 

FN88  SEE BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S. 383 (1951). 

FN89  SECS. 206-210, LABOR MANAGEMENT RELATIONS ACT OF 1947.  29
U.S.C. (SUPP. IV) SECS. 176-180. 

FN90  64 STAT. 812, 65 STAT. 132 (1950). 

FN91  H.R. REP. NO. 3042, 81ST CONG., 2D SESS. 35 (1950)(CONFERENCE
REPORT).  SEE ALSO S. REP. NO. 2250, 81ST CONG., 2D SESS. 41 (1950). 

FN92  EXEC. ORDER 10161, 15 FED. REG. 6105 (1950), AS AMENDED, EXEC.
ORDER 10233, 16 FED. REG. 3503 (1951). 

FN93  HEARINGS BEFORE THE HOUSE COMMITTEE ON BANKING AND CURRENCY ON
DEFENSE PRODUCTION ACT AMENDMENTS OF 1951, 82D CONG., 1ST SESS. 305
306, 312-313 (1951). 

FN94  THE LUCAS AMENDMENT TO ABOLISH THE DISPUTES FUNCTION OF THE WSB
WAS DEBATED AT LENGTH IN THE HOUSE, THE SPONSOR OF THE AMENDMENT
POINTING OUT THE SIMILARITY OF THE WSB FUNCTIONS TO THOSE OF THE WAR
LABOR BOARD AND NOTING THE SEIZURES THAT OCCURRED WHEN WAR LABOR BOARD
ORDERS WERE NOT OBEYED.  97 CONG. REC. 8390-8415.  THE AMENDMENT WAS
REJECTED BY A VOTE OF 217 TO 113.  ID., AT 8415.  A SIMILAR AMENDMENT
INTRODUCED IN THE SENATE WAS WITHDRAWN.  97 CONG. REC. 7373-7374.  THE
DEFENSE PRODUCTION ACT WAS EXTENDED WITHOUT AMENDING TIT. V OR
OTHERWISE AFFECTING THE DISPUTES FUNCTIONS OF THE WSB.  65 STAT. 132
(1951). 

FN95  COMPARE STERLING V. CONSTANTIN, 287 U.S. 378, 399-401 (1932). 
..END :



ROBERTSON V. UNITED STATES 343 U.S. 711 


NO. 388.  ARGUED MARCH 31, 1952 - DECIDED JUNE 2, 1952 - 190 F.2D 680,
AFFIRMED. 


1.  A CASH PRIZE RECEIVED BY THE WINNER OF A CONTEST IN MUSICAL
COMPOSITION IS "GROSS INCOME" WITHIN THE MEANING OF SEC. 22(A) OF THE
INTERNAL REVENUE CODE, AND IT IS NOT A "GIFT" EXCLUDED FROM GROSS
INCOME BY SEC. 22(B)(3).  PP. 713-714. 

2.  IN COMPUTING UNDER SEC. 107(B) THE TAX ON SUCH A CASH PRIZE FOR A
MUSICAL COMPOSITION, THE INCOME SHOULD BE ATTRIBUTED TO THE 36 MONTHS
ENDING WITH THE CLOSE OF THE YEAR IN WHICH IT WAS RECEIVED - NOT SOME
EARLIER PERIOD OF 36 MONTHS DURING WHICH THE TAXPAYER WORKED ON THE
COMPOSITION.  PP. 714-716. 

ROBERTSON V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

THE DISTRICT COURT HELD THAT A CASH PRIZE RECEIVED BY THE WINNER OF A
CONTEST IN MUSICAL COMPOSITION WAS A GIFT EXEMPTED FROM TAXATION BY
SEC. 22(B)(3) OF THE INTERNAL REVENUE CODE.  93 F. SUPP. 660.  THE
COURT OF APPEALS REVERSED.  190 F.2D 680.  THIS COURT GRANTED
CERTIORARI.  342 U.S. 896.  AFFIRMED, P. 716. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS A MUSICIAN AND COMPOSER WHO BETWEEN THE YEARS 1936 AND
1939 COMPOSED A SYMPHONY.  IN 1945 HENRY H. REICHHOLD, A
PHILANTHROPIST, ESTABLISHED A MUSIC AWARD OFFERING $25,000, $5,000, AND
$2,500 FOR THE THREE BEST SYMPHONIC WORKS WRITTEN BY NATIVE-BORN
COMPOSERS OF THIS HEMISPHERE.  THE TERMS OF THE OFFER PROVIDED THAT
NONE OF THE COMPOSITIONS COULD BE PUBLISHED OR PUBLICLY PERFORMED PRIOR
TO ENTRY IN THE CONTEST AND THAT EACH COMPOSITION RECEIVING AN AWARD
WOULD REMAIN THE PROPERTY OF THE COMPOSER EXCEPT THAT HE WOULD GRANT
THE DETROIT ORCHESTRA, INC., (1) ALL SYNCHRONIZATION RIGHTS AS APPLIED
TO MOTION PICTURES, (2) ALL MECHANICAL RIGHTS AS APPLIED TO PHONOGRAPH
RECORDINGS, ELECTRICAL TRANSCRIPTIONS AND MUSIC ROLLS, AND (3) THE
EXCLUSIVE RIGHT TO AUTHORIZE THE FIRST PERFORMANCE OF THE COMPOSITION
IN EACH OF THE COUNTRIES WHOSE CITIZENS WERE ELIGIBLE TO ENTER THE
CONTEST AND TO DESIGNATE THE PUBLISHER OF THE COMPOSITION. 

PETITIONER SUBMITTED HIS SYMPHONY AND ON DECEMBER 14, 1947, WON THE
$25,000 AWARD.  HE INCLUDED THAT AMOUNT IN HIS 1947 INCOME TAX RETURN
AS GROSS INCOME, CLAIMED THE BENEFITS OF SEC. 107(B) OF THE INTERNAL
REVENUE CODE (FN1) (26 U.S.C. (1946 ED.)  SEC.  107(B), 53 STAT. 878,
AS AMENDED), AND COMPUTED THE TAX AS THOUGH THE $25,000 HAD BEEN
RECEIVED RATABLY DURING THE YEARS 1937, 1938, AND 1939.  THEREAFTER HE
FILED A CLAIM FOR REFUND ON THE GROUND THAT THE AWARD CONSTITUTED A
NONTAXABLE GIFT.  (FN2)  THE COMMISSIONER DID NOT ALLOW THE CLAIM BUT
DETERMINED A DEFICIENCY ON THE GROUND THAT THE TAX SHOULD HAVE BEEN
COMPUTED UNDER SEC. 107(B) AS THOUGH THE AWARD HAD BEEN RATABLY
RECEIVED OVER THE THREE-YEAR PERIOD ENDING WITH 1947.  PETITIONER PAID
THE DEFICIENCY, FILED A SUPPLEMENTAL CLAIM FOR REFUND, AND BROUGHT THIS
SUIT TO OBTAIN IT.  THE DISTRICT COURT HELD THAT THE AWARD WAS A GIFT
AND NOT TAXABLE BY REASON OF SEC. 22(B)(3) OF THE INTERNAL REVENUE
CODE.  THE COURT OF APPEALS REVERSED.  190 F.2D 680.  THE CASE IS HERE
ON CERTIORARI, 342 U.S. 896, BECAUSE OF THE CONFLICT BETWEEN THAT
DECISION AND MCDERMOTT V. COMMISSIONER, 80 U.S. APP. D.C. 176, 150 F.2D
585, DECIDED BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.  AND
SEE WILLIAMS V. UNITED STATES, 114 CT. CL. 1, 84 F. SUPP. 362. 

             I. 

IN THE LEGAL SENSE PAYMENT OF A PRIZE TO A WINNER OF A CONTEST IS THE
DISCHARGE OF A CONTRACTUAL OBLIGATION.  THE ACCEPTANCE BY THE
CONTESTANTS OF THE OFFER TENDERED BY THE SPONSOR OF THE CONTEST CREATES
AN ENFORCEABLE CONTRACT.  SEE 6 CORBIN ON CONTRACTS, SEC. 1489;
RESTATEMENT, CONTRACTS, SEC. 521.  THE DISCHARGE OF LEGAL OBLIGATIONS -
THE PAYMENT FOR SERVICES RENDERED OR CONSIDERATION PAID PURSUANT TO A
CONTRACT - IS IN NO SENSE A GIFT.  THE CASE WOULD BE DIFFERENT IF AN
AWARD WERE MADE IN RECOGNITION OF PAST ACHIEVEMENTS OR PRESENT
ABILITIES, OR IF PAYMENT WERE GIVEN NOT FOR SERVICES (SEE OLD COLONY
TRUST CO. V. COMMISSIONER, 279 U.S. 716, 730), BUT OUT OF AFFECTION,
RESPECT, ADMIRATION, CHARITY OR LIKE IMPULSES.  WHERE THE PAYMENT IS IN
RETURN FOR SERVICES RENDERED, IT IS IRRELEVANT THAT THE DONOR DERIVES
NO ECONOMIC BENEFIT FROM IT.

                                  II. 

"ARTISTIC COMPOSITION" OF AN INDIVIDUAL, "THE WORK ON WHICH  ...
COVERED A PERIOD OF THIRTY-SIX CALENDAR MONTHS OR MORE FROM THE
BEGINNING TO THE COMPLETION" OF THE COMPOSITION.  IN CASE THE GROSS
INCOME FROM A PARTICULAR ARTISTIC WORK IN THE TAXABLE YEAR IS NOT LESS
THAN A PARTICULAR PERCENTAGE (NOT MATERIAL HERE), THE TAX ATTRIBUTABLE
TO THE INCOME OF THE TAXABLE YEAR MAY BE COMPUTED AS THOUGH IT HAD
"BEEN RECEIVED RATABLY OVER THAT PART OF THE PERIOD PRECEDING THE CLOSE
OF THE TAXABLE YEAR BUT NOT MORE THAN THIRTY-SIX CALENDAR MONTHS."  THE
QUESTION IS WHETHER THE AMOUNT OF THE PRIZE SHOULD BE TAXED RATABLY
OVER THE 36 MONTHS ENDING WITH THE CLOSE OF 1947 (THE TAXABLE YEAR IN
WHICH IT WAS RECEIVED) OR OVER THE LAST 36 MONTHS OF THE PERIOD (1937
TO 1939) WHEN PETITIONER WROTE THE SYMPHONY. 

THE PHRASE IN QUESTION, AS IT ORIGINATED (H.R. 7378, 77TH CONG., 2D
SESS., SEC. 128), READ "RATABLY OVER THE PERIOD OF THIRTY-SIX CALENDAR
MONTHS ENDING WITH THE CLOSE OF THE TAXABLE YEAR."  IN THAT FORM THE
PRESENT TAX WOULD HAVE BEEN COMPUTED AS THE COMMISSIONER CONTENDED,
VIZ. THE TAX WOULD BE LAID OVER A PERIOD OF 36 MONTHS EXTENDING BACK
FROM THE CLOSE OF THE TAXABLE YEAR.  THE CHANGE IN WORDING DOES NOT
SEEM TO US TO HAVE MADE A CHANGE IN MEANING.  THE PRESENT WORDS
"RATABLY OVER THAT PART OF THE PERIOD PRECEDING THE CLOSE OF THE
TAXABLE YEAR BUT NOT MORE THAN THIRTY-SIX CALENDAR MONTHS" WOULD ON
THEIR FACE SEEM TO REFER TO A PERIOD ENDING WITH THE CLOSE OF THE
TAXABLE YEAR AND EXTENDING BACK A MAXIMUM OF 36 MONTHS.  THAT WORDING
WAS ADOPTED IN ORDER TO TREAT THE INCOME AS THOUGH IT HAD "BEEN
RECEIVED RATABLY OVER (1) THE PART OF THE PERIOD OF THE WORK WHICH
PRECEDED THE CLOSE OF THE TAXABLE YEAR, OR (2) A PERIOD OF 36 CALENDAR
MONTHS, WHICHEVER OF SUCH PERIODS IS THE SHORTER."  SEE S. REP. NO.
1631, 77TH CONG., 2D SESS., P. 109.  THE HOUSE CONFEREES, IN AGREEING
TO THE CHANGE, STATED THAT IT "CLARIFIES THE LANGUAGE OF THE HOUSE
BILL."  H.R. CONF. REP. NO. 2586, 77TH CONG., 2D SESS., P. 43.  THAT
HISTORY STRONGLY SUGGESTS THAT THE PURPOSE WAS NOT TO CHANGE THE
ALLOWABLE PERIOD OF ALLOCATION FROM ONE ENDING WITH THE CLOSE OF THE
TAXABLE YEAR TO ONE COVERING ANY 36 MONTHS IN THE PAST WHEN THE WORK
WAS DONE, BUT TO PREVENT TAX REDUCTION BY PRORATION OF INCOME OVER A
PERIOD OF WORK GREATER THAN THE DURATION OF THE WORK PRECEDING THE
CLOSE OF THE TAXABLE YEAR.  THAT IS THE CONSTRUCTION GIVEN BY TREASURY
REGULATIONS 111, SEC. 29.107-2; (FN4) AND WHILE MUCH MORE COULD BE
SAID, IT SEEMS TO US THAT THAT CONSTRUCTION FITS THE STATUTORY SCHEME. 
AFFIRMED. 

FN1  SECTION 107(B) PROVIDES:  "FOR THE PURPOSES OF THIS SUBSECTION,
THE TERM 'ARTISTIC WORK OR INVENTION', IN THE CASE OF AN INDIVIDUAL,
MEANS A LITERARY, MUSICAL, OR ARTISTIC COMPOSITION OF SUCH INDIVIDUAL
OR A PATENT OR COPYRIGHT COVERING AN INVENTION OF OR A LITERARY,
MUSICAL, OR ARTISTIC COMPOSITION OF SUCH INDIVIDUAL, THE WORK ON WHICH
BY SUCH INDIVIDUAL COVERED A PERIOD OF THIRTY-SIX CALENDAR MONTHS OR
MORE FROM THE BEGINNING TO THE COMPLETION OF SUCH COMPOSITION OR
INVENTION.  IF, IN THE TAXABLE YEAR, THE GROSS INCOME OF ANY INDIVIDUAL
FROM A PARTICULAR ARTISTIC WORK OR INVENTION BY HIM IS NOT LESS THAN 80
PER CENTUM OF THE GROSS INCOME IN RESPECT OF SUCH ARTISTIC WORK OR
INVENTION IN THE TAXABLE YEAR PLUS THE GROSS INCOME THEREFROM IN
PREVIOUS TAXABLE YEARS AND THE TWELVE MONTHS IMMEDIATELY SUCCEEDING THE
CLOSE OF THE TAXABLE YEAR, THE TAX ATTRIBUTABLE TO THE PART OF SUCH
GROSS INCOME OF THE TAXABLE YEAR WHICH IS NOT TAXABLE AS A GAIN FROM
THE SALE OR EXCHANGE OF A CAPITAL ASSET HELD FOR MORE THAN 6 MONTHS
SHALL NOT BE GREATER THAN THE AGGREGATE OF THE TAXES ATTRIBUTABLE TO
SUCH PART HAD IT BEEN RECEIVED RATABLY OVER THAT PART OF THE PERIOD
PRECEDING THE CLOSE OF THE TAXABLE YEAR BUT NOT MORE THAN THIRTY-SIX
CALENDAR MONTHS." 

FN2  SECTION 22(B)(3) OF THE INTERNAL REVENUE CODE PROVIDES: 

"THE FOLLOWING ITEMS SHALL NOT BE INCLUDED IN GROSS INCOME AND SHALL
BE EXEMPT FROM TAXATION UNDER THIS CHAPTER:  ... 

"THE VALUE OF PROPERTY ACQUIRED BY GIFT, BEQUEST, DEVISE, OR
INHERITANCE  ...  ." 

FN3  SEE NOTE 1, SUPRA. 

FN4  SECTION 29.107-2 PROVIDES IN PART: 

"THE METHOD OF ALLOCATING THE GROSS INCOME FROM THE ARTISTIC WORK OR
INVENTION TO THE TAXABLE YEARS IN WHICH FALLS ANY OF THE CALENDAR
MONTHS (NOT EXCEEDING 36 CALENDAR MONTHS) INCLUDED WITHIN THE PART OF
THE PERIOD OF WORK WHICH PRECEDES THE CLOSE OF THE CURRENT TAXABLE YEAR
MAY BE ILLUSTRATED BY THE FOLLOWING EXAMPLES: 

"EXAMPLE (1).  ON OCTOBER 1, 1942, A, AN INDIVIDUAL, WHO MAKES HIS
RETURNS ON A CALENDAR YEAR BASIS AND ON THE BASIS OF CASH RECEIPTS AND
DISBURSEMENTS, RECEIVES $36,000 IN FULL PAYMENT FOR A MUSICAL
COMPOSITION, THE WORK ON WHICH WAS COMMENCED BY A ON JULY 10, 1938, AND
COMPLETED ON JANUARY 29, 1943.  ALTHOUGH THE PERIOD OF WORK COVERS 55
CALENDAR MONTHS, ALLOCATIONS MAY BE MADE TO ONLY THE LAST 36 CALENDAR
MONTHS INCLUDED WITHIN THE PART OF THE PERIOD OF WORK WHICH PRECEDES
THE CLOSE OF 1942 (THE CURRENT TAXABLE YEAR).  THEREFORE, $1,000
($36,000 DIVIDED BY 36) MUST BE ALLOCATED TO EACH OF THE 36 CALENDAR
MONTHS PRECEDING JANUARY 1, 1943.  ACCORDINGLY, $12,000 IS ALLOCATED TO
1940, $12,000 TO 1941, AND $12,000 TO 1942 (THE CURRENT TAXABLE YEAR). 

"EXAMPLE (2).  ASSUME THE SAME FACTS AS IN EXAMPLE (1) EXCEPT THAT
THE PERIOD OF WORK WAS COMMENCED BY A ON JULY 1, 1941, AND COMPLETED ON
SEPTEMBER 1, 1944.  ALTHOUGH THE PERIOD OF WORK COVERS 38 CALENDAR
MONTHS, ALLOCATIONS MAY BE MADE TO ONLY THE 18 CALENDAR MONTHS WHICH
ARE INCLUDED WITHIN THE PART OF THE PERIOD OF WORK WHICH PRECEDES THE
CLOSE OF 1942 (THE CURRENT TAXABLE YEAR).  THEREFORE, $2,000 ($36,000
DIVIDED BY 18) MUST BE ALLOCATED TO EACH OF 18 CALENDAR MONTHS
PRECEDING JANUARY 1, 1943.  ACCORDINGLY, $12,000 IS ALLOCATED TO 1941,
AND $24,000 TO 1942 (THE CURRENT TAXABLE YEAR)." 

MR. JUSTICE FRANKFURTER, NOT HAVING HEARD THE ARGUMENT OWING TO
ILLNESS, TOOK NO PART IN THE DISPOSITION OF THIS CASE. 

MR. JUSTICE JACKSON DISSENTS. 
..END :

















KAWAKITA V. UNITED STATES 343 U.S. 717 


NO. 570.  ARGUED APRIL 2-3, 1952 - DECIDED JUNE 2, 1952 - 190 F.2D 506,
AFFIRMED. 


AT PETITIONER'S TRIAL FOR TREASON, IT APPEARED THAT ORIGINALLY HE WAS
A NATIVE-BORN CITIZEN OF THE UNITED STATES AND ALSO A NATIONAL OF JAPAN
BY REASON OF JAPANESE PARENTAGE AND LAW.  WHILE A MINOR, HE TOOK THE
OATH OF ALLEGIANCE TO THE UNITED STATES; WENT TO JAPAN FOR A VISIT ON
AN AMERICAN PASSPORT; AND WAS PREVENTED BY THE OUTBREAK OF WAR FROM
RETURNING TO THIS COUNTRY.  DURING THE WAR, HE REACHED HIS MAJORITY IN
JAPAN; CHANGED HIS REGISTRATION FROM AMERICAN TO JAPANESE; SHOWED
SYMPATHY WITH JAPAN AND HOSTILITY TO THE UNITED STATES; SERVED AS A
CIVILIAN EMPLOYEE OF A PRIVATE CORPORATION PRODUCING WAR MATERIALS FOR
JAPAN; AND BRUTALLY ABUSED AMERICAN PRISONERS OF WAR WHO WERE FORCED TO
WORK THERE.  AFTER JAPAN'S SURRENDER, HE REGISTERED AS AN AMERICAN
CITIZEN; SWORE THAT HE WAS AN AMERICAN CITIZEN AND HAD NOT DONE VARIOUS
ACTS AMOUNTING TO EXPATRIATION; AND RETURNED TO THIS COUNTRY ON AN
AMERICAN PASSPORT.  HELD:  HIS CONVICTION FOR TREASON IS AFFIRMED.  PP.
719-745. 

1.  THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE FINDING OF THE JURY
THAT HE HAD NOT RENOUNCED OR LOST HIS AMERICAN CITIZENSHIP AT THE TIME
OF THE OVERT ACTS CHARGED IN THE INDICTMENT.  PP. 720-732. 

(A)  IN VIEW OF PETITIONER'S DUAL NATIONALITY, IT CANNOT BE SAID AS A
MATTER OF LAW THAT HIS ACTION IN REGISTERING IN THE KOSEKI (A FAMILY
CENSUS REGISTER) AND CHANGING HIS REGISTRATION FROM AMERICAN TO
JAPANESE AMOUNTED TO A RENUNCIATION OF AMERICAN CITIZENSHIP WITHIN THE
MEANING OF SEC. 401 OF THE NATIONALITY ACT.  PP. 722-725. 

(B)  NOR IS SUCH A HOLDING REQUIRED AS A MATTER OF LAW BY THE FACTS
THAT, DURING THE WAR, HE TRAVELED TO CHINA ON A JAPANESE PASSPORT, USED
HIS KOSEKI ENTRY TO OBTAIN WORK AT A PRISONER-OF-WAR CAMP, BOWED TO THE
EMPEROR, AND ACCEPTED LABOR DRAFT PAPERS FROM THE JAPANESE GOVERNMENT. 
P. 725. 

(C)  IN VIEW OF THE CONFLICT BETWEEN PETITIONER'S STATEMENTS AT HIS
TRIAL THAT HE FELT NO LOYALTY TO THE UNITED STATES FROM MARCH 1943 TO
LATE 1945 AND HIS ACTIONS AFTER JAPAN'S DEFEAT (WHEN HE APPLIED FOR
REGISTRATION AS AN AMERICAN CITIZEN AND FOR AN AMERICAN PASSPORT), THE
QUESTION WHETHER HE HAD RENOUNCED HIS AMERICAN CITIZENSHIP WAS
PECULIARLY FOR THE JURY TO DETERMINE.  PP. 725-727. 

(D)  IT CANNOT BE SAID THAT PETITIONER WAS SERVING IN THE ARMED
FORCES OF JAPAN WITHIN THE MEANING OF SEC. 401(C) NOR THAT HIS STATUS
AS A CIVILIAN EMPLOYEE OF A PRIVATE CORPORATION WAS SO CHANGED BY THE
REGIMENTATION OF THE INDUSTRY BY THE JAPANESE GOVERNMENT THAT HE WAS
PERFORMING THE DUTIES OF AN "OFFICE, POST, OR EMPLOYMENT UNDER THE
GOVERNMENT" OF JAPAN WITHIN THE MEANING OF SEC. 401(D) OF THE
NATIONALITY ACT.  PP. 727-729. 

(E)  SECTION 402 CREATES A REBUTTABLE PRESUMPTION THAT A NATIONAL IN
PETITIONER'S CATEGORY EXPATRIATES HIMSELF WHEN HE REMAINS FOR SIX
MONTHS OR LONGER IN A FOREIGN STATE OF WHICH HE OR EITHER OF HIS
PARENTS SHALL HAVE BEEN A NATIONAL; BUT THAT PRESUMPTION WAS REBUTTED
BY THE SHOWING THAT PETITIONER WAS NOT EXPATRIATED UNDER SEC. 401(C) OR
(D).  P. 730. 

(F)  IF THERE WAS ANY ERROR IN THE JUDGE'S CHARGE TO THE JURY THAT
THE ONLY METHODS OF EXPATRIATION ARE THOSE CONTAINED IN SEC. 401, IT
WAS HARMLESS ERROR, SINCE PETITIONER TENDERED NO QUESTION OF FACT WHICH
WAS INADMISSIBLE UNDER SEC. 401 AND SINCE THE JUDGE CHARGED THAT HE
COULD NOT BE CONVICTED IF HE HONESTLY BELIEVED THAT HE WAS NO LONGER A
CITIZEN OF THE UNITED STATES.  PP. 730-732. 

2.  NOTWITHSTANDING HIS DUAL NATIONALITY AND HIS RESIDENCE IN JAPAN,
PETITIONER OWED ALLEGIANCE TO THE UNITED STATES AND CAN BE PUNISHED FOR
TREASONABLE ACTS VOLUNTARILY COMMITTED.  PP. 732-736. 

(A)  SINCE THE DEFINITION OF TREASON IN ART. III, SEC. 3 OF THE
CONSTITUTION CONTAINS NO TERRITORIAL LIMITATION, AN AMERICAN CITIZEN
LIVING BEYOND THE TERRITORIAL LIMITS OF THE UNITED STATES CAN BE GUILTY
OF TREASON AGAINST THE UNITED STATES.  PP. 732-733. 

(B)  PETITIONER WAS HELD ACCOUNTABLE BY THE JURY ONLY FOR PERFORMING
ACTS OF HOSTILITY TOWARD THIS COUNTRY WHICH HE WAS NOT REQUIRED BY
JAPAN TO PERFORM.  PP. 734-735. 

(C)  AN AMERICAN CITIZEN OWES ALLEGIANCE TO THE UNITED STATES
WHEREVER HE MAY RESIDE.  PP. 735-736. 

3.  EACH OF THE OVERT ACTS OF WHICH PETITIONER WAS CONVICTED WAS
PROPERLY PROVEN BY TWO WITNESSES; AND EACH OF THEM SHOWED THAT
PETITIONER GAVE AID AND COMFORT TO THE ENEMY.  PP. 736-742. 

(A)  TWO OVERT ACTS (ABUSING AMERICAN PRISONERS FOR THE PURPOSE OF
GETTING MORE WORK OUT OF THEM IN PRODUCING WAR MATERIALS FOR THE ENEMY)
QUALIFIED AS OVERT ACTS WITHIN THE CONSTITUTIONAL STANDARD OF TREASON,
SINCE THEY GAVE AID AND COMFORT TO THE ENEMY, THOUGH THEIR CONTRIBUTION
TO THE ENEMY'S WAR EFFORT WAS MINOR.  PP. 737-739. 

(B)  THE OTHER SIX OVERT ACTS (CRUELTY TO AMERICAN PRISONERS OF WAR)
GAVE AID AND COMFORT TO THE ENEMY BY HELPING TO MAKE ALL THE PRISONERS
FEARFUL, DOCILE AND SUBSERVIENT, REDUCING THE NUMBER OF GUARDS NEEDED,
AND REQUIRING LESS WATCHING - ALL OF WHICH ENCOURAGED THE ENEMY AND
ADVANCED HIS INTERESTS.  PP. 739-742. 

(C)  THE OVERT ACTS WERE SUFFICIENTLY PROVEN BY TWO WITNESSES, SINCE
EACH OVERT ACT WAS TESTIFIED TO BY AT LEAST TWO WITNESSES WHO WERE
PRESENT AND SAW OR HEARD THAT TO WHICH THEY TESTIFIED AND ANY
DISAGREEMENT AMONG THEM WAS NOT ON WHAT TOOK PLACE BUT ON COLLATERAL
DETAILS.  P. 742. 

4.  THE EVIDENCE WAS SUFFICIENT TO PROVE THAT PETITIONER WAS GUILTY
OF VOLUNTARILY "ADHERING TO THE ENEMY."  PP. 742-744. 

5.  THE TREASONABLE ACTIONS OF PETITIONER WERE SO FLAGRANT AND
PERSISTENT THAT IT CANNOT BE SAID THAT THE DEATH SENTENCE IMPOSED BY
THE TRIAL JUDGE WAS SO SEVERE AS TO BE ARBITRARY.  PP. 744-745. 

KAWAKITA V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

IN A FEDERAL DISTRICT COURT, PETITIONER WAS CONVICTED OF TREASON AND
SENTENCED TO DEATH.  SEE 96 F. SUPP. 824.  THE COURT OF APPEALS
AFFIRMED.  190 F.2D 506.  THIS COURT GRANTED CERTIORARI.  342 U.S.
932.  AFFIRMED, P. 745. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A NATIONAL BOTH OF UNITED STATES AND OF JAPAN, WAS
INDICTED FOR TREASON, THE OVERT ACTS RELATING TO HIS TREATMENT OF
AMERICAN PRISONERS OF WAR.  HE WAS CONVICTED OF TREASON AFTER A JURY
TRIAL  (SEE 96 F. SUPP. 824) AND THE JUDGMENT OF CONVICTION WAS
AFFIRMED.  190 F.2D 506.  THE CASE IS HERE ON CERTIORARI.  342 U.S.
932. 

FIRST.  THE IMPORTANT QUESTION THAT LIES AT THE THRESHOLD OF THE CASE
RELATES TO EXPATRIATION.  PETITIONER WAS BORN IN THIS COUNTRY IN 1921
OF JAPANESE PARENTS WHO WERE CITIZENS OF JAPAN.  HE WAS THUS A CITIZEN
OF THE UNITED STATES BY BIRTH (AMENDMENT XIV, SEC. 1) AND, BY REASON OF
JAPANESE LAW, A NATIONAL OF JAPAN.  SEE HIRABAYASHI V. UNITED STATES,
320 U.S. 81, 97. 

IN 1939 SHORTLY BEFORE PETITIONER TURNED 18 YEARS OF AGE HE WENT TO
JAPAN WITH HIS FATHER TO VISIT HIS GRANDFATHER.  HE TRAVELED ON A
UNITED STATES PASSPORT; AND TO OBTAIN IT HE TOOK THE CUSTOMARY OATH OF
ALLEGIANCE.  IN 1940 HE REGISTERED WITH AN AMERICAN CONSUL IN JAPAN AS
AN AMERICAN CITIZEN.  PETITIONER REMAINED IN JAPAN, HIS FATHER
RETURNING TO THIS COUNTRY.  IN MARCH, 1941, HE ENTERED MEIJI UNIVERSITY
AND TOOK A COMMERCIAL COURSE AND MILITARY TRAINING.  IN APRIL, 1941, HE
RENEWED HIS UNITED STATES PASSPORT, ONCE MORE TAKING THE OATH OF
ALLEGIANCE TO THE UNITED STATES.  DURING THIS PERIOD HE WAS REGISTERED
AS AN ALIEN WITH THE JAPANESE POLICE.  WHEN WAR WAS DECLARED,
PETITIONER WAS STILL A STUDENT AT MEIJI UNIVERSITY.  HE BECAME OF AGE
IN 1942 AND COMPLETED HIS SCHOOLING IN 1943, AT WHICH TIME IT WAS
IMPOSSIBLE FOR HIM TO RETURN TO THE UNITED STATES.  IN 1943 HE
REGISTERED IN THE KOSEKI, A FAMILY CENSUS REGISTER.  (FN1)  PETITIONER
DID NOT JOIN THE JAPANESE ARMY NOR SERVE AS A SOLDIER.  RATHER, HE
OBTAINED EMPLOYMENT AS AN INTERPRETER WITH THE OEYAMA NICKEL INDUSTRY
CO., LTD., WHERE HE WORKED UNTIL JAPAN'S SURRENDER.  HE WAS HIRED TO
INTERPRET COMMUNICATIONS BETWEEN THE JAPANESE AND THE PRISONERS OF WAR
WHO WERE ASSIGNED TO WORK AT THE MINE AND IN THE FACTORY OF THIS
COMPANY.  THE TREASONABLE ACTS FOR WHICH HE WAS CONVICTED INVOLVED HIS
CONDUCT TOWARD AMERICAN PRISONERS OF WAR. 

IN DECEMBER, 1945, PETITIONER WENT TO THE UNITED STATES CONSUL AT
YOKOHAMA AND APPLIED FOR REGISTRATION AS AN AMERICAN CITIZEN.  HE
STATED UNDER OATH THAT HE WAS A UNITED STATES CITIZEN AND HAD NOT DONE
VARIOUS ACTS AMOUNTING TO EXPATRIATION.  HE WAS ISSUED A PASSPORT AND
RETURNED TO THE UNITED STATES IN 1946.  SHORTLY THEREAFTER HE WAS
RECOGNIZED BY A FORMER AMERICAN PRISONER OF WAR, WHEREUPON HE WAS
ARRESTED, AND INDICTED, AND TRIED FOR TREASON. 

PETITIONER DEFENDED AT HIS TRIAL ON THE GROUND THAT HE HAD RENOUNCED
OR ABANDONED HIS UNITED STATES CITIZENSHIP AND WAS EXPATRIATED. 
CONGRESS HAS PROVIDED BY SEC. 401 OF THE NATIONALITY ACT OF 1940, 54
STAT. 1137, 1168, AS AMENDED, 8 U.S.C. SEC. 801, THAT A NATIONAL OF THE
UNITED STATES MAY LOSE HIS NATIONALITY IN CERTAIN PRESCRIBED WAYS.  IT
PROVIDES IN RELEVANT PART: 

"A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR
NATURALIZATION, SHALL LOSE HIS NATIONALITY BY: 

"(A)  OBTAINING NATURALIZATION IN A FOREIGN STATE  ... ; OR: 

"(B)  TAKING AN OATH OR MAKING AN AFFIRMATION OR OTHER FORMAL
DECLARATION OF ALLEGIANCE TO A FOREIGN STATE; OR: 

"(C)  ENTERING, OR SERVING IN, THE ARMED FORCES OF A FOREIGN STATE
UNLESS EXPRESSLY AUTHORIZED BY THE LAWS OF THE UNITED STATES, IF HE HAS
OR ACQUIRES THE NATIONALITY OF SUCH FOREIGN STATE; OR: 

"(D)  ACCEPTING, OR PERFORMING THE DUTIES OF, ANY OFFICE, POST, OR
EMPLOYMENT UNDER THE GOVERNMENT OF A FOREIGN STATE OR POLITICAL
SUBDIVISION THEREOF FOR WHICH ONLY NATIONALS OF SUCH STATE ARE
ELIGIBLE; ...  ." 

THE COURT CHARGED THAT IF THE JURY FOUND THAT PETITIONER HAD LOST HIS
AMERICAN CITIZENSHIP PRIOR TO OR DURING THE PERIOD SPECIFIED IN THE
INDICTMENT, THEY MUST ACQUIT HIM EVEN IF HE DID COMMIT THE OVERT ACTS
CHARGED IN THE INDICTMENT, SINCE HIS DUTY OF ALLEGIANCE WOULD HAVE
CEASED WITH THE TERMINATION OF HIS AMERICAN CITIZENSHIP.  THE COURT
FURTHER CHARGED THAT IF THE JURY SHOULD FIND BEYOND A REASONABLE DOUBT
THAT DURING THE PERIOD IN QUESTION PETITIONER WAS AN AMERICAN CITIZEN,
HE OWED THE UNITED STATES THE SAME DUTY OF ALLEGIANCE AS ANY OTHER
CITIZEN.  THE COURT ALSO CHARGED THAT EVEN THOUGH THE JURY FOUND THAT
PETITIONER WAS AN AMERICAN CITIZEN DURING THE PERIOD IN QUESTION, THEY
MUST ACQUIT HIM IF AT THE TIME OF THE OVERT ACTS PETITIONER HONESTLY
BELIEVED HE WAS NO LONGER A CITIZEN OF THE UNITED STATES, FOR THEN HE
COULD NOT HAVE COMMITTED THE OVERT ACTS WITH TREASONABLE INTENT.  THE
SPECIAL VERDICTS OF THE JURY CONTAIN, WITH RESPECT TO EACH OVERT ACT AS
TO WHICH PETITIONER WAS FOUND GUILTY, AN AFFIRMATIVE ANSWER TO AN
INTERROGATORY THAT HE WAS AT THAT TIME "AN AMERICAN CITIZEN OWING
ALLEGIANCE TO THE UNITED STATES, AS CHARGED IN THE INDICTMENT." 

PETITIONER ASKS US TO HOLD AS A MATTER OF LAW THAT HE HAD EXPATRIATED
HIMSELF BY HIS ACTS AND CONDUCT BEGINNING IN 1943.  HE PLACES SPECIAL
EMPHASIS ON THE ENTRY OF HIS NAME IN THE KOSEKI.  PRIOR TO THAT TIME HE
HAD BEEN REGISTERED BY THE POLICE AS AN ALIEN.  THERE IS EVIDENCE THAT
AFTER THAT TIME HE WAS CONSIDERED BY JAPANESE AUTHORITIES AS A JAPANESE
AND THAT HE TOOK ACTION WHICH MIGHT GIVE RISE TO THE INFERENCE THAT HE
HAD ELECTED THE JAPANESE NATIONALITY:  HE TOOK A COPY OF THE KOSEKI TO
THE POLICE STATION AND HAD HIS NAME REMOVED AS AN ALIEN; HE CHANGED HIS
REGISTRATION AT THE UNIVERSITY FROM AMERICAN TO JAPANESE AND HIS
ADDRESS FROM CALIFORNIA TO JAPAN; HE USED THE KOSEKI ENTRY TO GET A JOB
AT THE OEYAMA CAMP; HE WENT TO CHINA ON A JAPANESE PASSPORT (SEE UNITED
STATES V. HUSBAND, 6 F.2D 957, 958); HE ACCEPTED LABOR DRAFT PAPERS
FROM THE JAPANESE GOVERNMENT; HE FACED THE EAST EACH MORNING AND PAID
HIS RESPECTS TO THE EMPEROR. 

THE DIFFICULTY WITH PETITIONER'S POSITION IS THAT THE IMPLICATIONS
FROM THE ACTS, WHICH HE ADMITTEDLY PERFORMED, ARE AMBIGUOUS.  HE HAD A
DUAL NATIONALITY, A STATUS LONG RECOGNIZED IN THE LAW.  (FN2)  PERKINS
V. ELG, 307 U.S. 325, 344-349.  THE CONCEPT OF DUAL CITIZENSHIP
RECOGNIZES THAT A PERSON MAY HAVE AND EXERCISE RIGHTS OF NATIONALITY IN
TWO COUNTRIES AND BE SUBJECT TO THE RESPONSIBILITIES OF BOTH.  THE MERE
FACT THAT HE ASSERTS THE RIGHTS OF ONE CITIZENSHIP DOES NOT WITHOUT
MORE MEAN THAT HE RENOUNCES THE OTHER.  IN THIS SETTING PETITIONER'S
REGISTRATION IN THE KOSEKI MIGHT REASONABLY BE TAKEN TO MEAN NO MORE
THAN AN ASSERTION OF SOME OF THE RIGHTS WHICH HIS DUAL CITIZENSHIP
BESTOWED ON HIM.  THE DEPOSITION OF THE ATTORNEY GENERAL OF JAPAN STATE
THAT THE ENTRY OF A PERSON'S NAME IN THE KOSEKI IS TAKEN TO MEAN THAT
ONE HAS JAPANESE NATIONALITY.  BUT SINCE PETITIONER ALREADY HAD
JAPANESE NATIONALITY, HE OBVIOUSLY DID NOT ACQUIRE IT BY THE ACT OF
REGISTRATION.  THE ATTORNEY GENERAL OF JAPAN FURTHER DEPOSED THAT ALL
JAPANESE NATIONALS, WHETHER OR NOT BORN ABROAD, ARE DUTY BOUND TO
JAPANESE ALLEGIANCE AND THAT REGISTERING IN THE KOSEKI IS "NOT
NECESSARILY A FORMAL DECLARATION OF ALLEGIANCE BUT MERELY A
REAFFIRMATION OF AN ALLEGIANCE TO JAPAN WHICH ALREADY EXISTS."  FROM
THIS IT WOULD APPEAR THAT THE REGISTRATION MAY HAVE BEEN NOTHING MORE
THAN THE DISCLOSURE OF A FACT THERETOFORE NOT MADE PUBLIC. 

CONCEIVABLY IT MIGHT HAVE GREATER CONSEQUENCES.  IN OTHER SETTINGS IT
MIGHT BE THE EQUIVALENT OF "NATURALIZATION" WITHIN THE MEANING OF SEC.
401(A) OF THE ACT OR THE MAKING OF "AN AFFIRMATION OR OTHER FORMAL
DECLARATION OF ALLEGIANCE" TO JAPAN WITHIN THE MEANING OF SEC. 401(B). 
CERTAINLY IT WAS RELEVANT TO THE ISSUE OF EXPATRIATION.  BUT WE CANNOT
SAY AS A MATTER OF LAW THAT IT WAS A RENUNCIATION OF PETITIONER'S
AMERICAN CITIZENSHIP.  WHAT FOLLOWED MIGHT REASONABLY BE CONSTRUED TO
MEAN NO MORE THAN RECOGNITION OF THE JAPANESE CITIZENSHIP WHICH
PETITIONER HAD ACQUIRED ON BIRTH - NATIONALITY THAT WAS PUBLICLY
DISCLOSED FOR THE FIRST TIME IN JAPAN BY HIS REGISTRATION IN THE
KOSEKI.  CF. 3 HACKWORTH, DIGEST OF INTERNATIONAL LAW (1942), P. 373. 
THE CHANGING OF HIS REGISTRATION AT THE POLICE STATION AND AT THE
UNIVERSITY, SO AS TO CONFORM THOSE RECORDS TO THE PUBLIC RECORD OF HIS
JAPANESE NATIONALITY, MIGHT REASONABLY MEAN NO MORE THAN ANNOUNCING THE
FACT OF HIS JAPANESE NATIONALITY TO THE INTERESTED AUTHORITIES. 

AS WE HAVE SAID, DUAL CITIZENSHIP PRESUPPOSES RIGHTS OF CITIZENSHIP
IN EACH COUNTRY.  IT COULD NOT EXIST IF THE ASSERTION OF RIGHTS OR THE
ASSUMPTION OF LIABILITIES OF ONE WERE DEEMED INCONSISTENT WITH THE
MAINTENANCE OF THE OTHER.  FOR EXAMPLE, WHEN ONE HAS A DUAL
CITIZENSHIP, IT IS NOT NECESSARILY INCONSISTENT WITH HIS CITIZENSHIP IN
ONE NATION TO USE A PASSPORT PROCLAIMING HIS CITIZENSHIP IN THE OTHER. 
SEE 3 HACKWORTH, SUPRA, P. 353.  HENCE THE USE BY PETITIONER OF A
JAPANESE PASSPORT ON HIS TRIP TO CHINA, HIS USE OF THE KOSEKI ENTRY TO
OBTAIN WORK AT THE OEYAMA CAMP, THE BOWING TO THE EMPEROR, AND HIS
ACCEPTANCE OF LABOR DRAFT PAPERS FROM THE JAPANESE GOVERNMENT MIGHT
REASONABLY MEAN NO MORE THAN ACCEPTANCE OF SOME OF THE INCIDENTS OF
JAPANESE CITIZENSHIP MADE POSSIBLE BY HIS DUAL CITIZENSHIP. 

THOSE ACTS, TO BE SURE, WERE COLORED BY VARIOUS OTHER ACTS AND
STATEMENTS OF PETITIONER.  HE TESTIFIED FOR EXAMPLE THAT HE FELT NO
LOYALTY TO THE UNITED STATES FROM ABOUT MARCH, 1943, TO LATE 1945. 
THERE WAS EVIDENCE THAT HE BOASTED THAT JAPAN WAS WINNING AND WOULD WIN
THE WAR, THAT HE TAUNTED AMERICAN PRISONERS OF WAR WITH GENERAL
MACARTHUR'S DEPARTURE FROM THE PHILIPPINES, THAT HE EXPRESSED HIS
HATRED TOWARD THINGS AMERICAN AND TOWARD THE PRISONERS AS AMERICANS. 
THAT WAS IN 1943 AND 1944.  THIS ATTITUDE CONTINUED INTO 1945, ALTHOUGH
IN MAY OR JUNE, 1945, SHORTLY BEFORE JAPAN'S SURRENDER, HE WAS SAYING
HE DID NOT CARE "WHICH WAY THE WAR GOES BECAUSE I AM GOING BACK TO THE
STATES ANYWAY." 

ON DECEMBER 31, 1945, HE APPLIED FOR REGISTRATION AS AN AMERICAN
CITIZEN, AND IN THAT CONNECTION HE MADE AN AFFIDAVIT IN WHICH HE STATED
THAT HE HAD BEEN "TEMPORARILY RESIDING" IN JAPAN SINCE AUGUST 10, 1939;
THAT HE CAME TO JAPAN TO STUDY JAPANESE; THAT HE POSSESSED DUAL
NATIONALITY FROM BIRTH BUT THAT HIS NAME WAS NOT ENTERED IN THE CENSUS
REGISTER UNTIL MARCH 8, 1943; AND THAT HE HAD "NEVER BEEN NATURALIZED,
TAKEN AN OATH OF ALLEGIANCE, OR VOTED AS A FOREIGN CITIZEN OR SUBJECT,
OR IN ANY WAY HELD MYSELF OUT AS SUCH." 

THE UNITED STATES FOREIGN SERVICE OFFICER CONCLUDED THAT PETITIONER
HAD OVERCOME THE PRESUMPTION OF EXPATRIATION.  HE REPORTED, "IN 1943
HIS POSSESSION OF JAPANESE NATIONALITY WAS MADE A MATTER OF RECORD BY
THE ENTRY OF HIS NAME INTO HIS UNCLE'S FAMILY CENSUS REGISTER.  HE
STATES THAT THIS ACTION WAS TAKEN UNDER SEVERE PRESSURE BY THE JAPANESE
POLICE AND BY HIS UNCLE, ON WHOM HE WAS FINANCIALLY DEPENDENT AFTER HIS
SUPPLY OF FUNDS FROM THE U.S. WAS CUT OFF; THIS OFFICE HAS REASON TO
BELIEVE THIS STATEMENT."  THESE REPRESENTATIONS LED TO THE ISSUANCE OF
AN AMERICAN PASSPORT ON WHICH HE RETURNED TO THE UNITED STATES IN
1946. 

IF PETITIONER WERE TO BE BELIEVED IN DECEMBER, 1945, HE NEVER ONCE
RENOUNCED HIS AMERICAN CITIZENSHIP.  IF WHAT PETITIONER NOW SAYS WERE
HIS THOUGHTS, ATTITUDES, AND MOTIVES IN 1943 AND 1944 AND IN PART OF
1945, HE DID INTEND TO RENOUNCE HIS AMERICAN CITIZENSHIP.  IF THE
LATTER VERSION WERE BELIEVED BY THE JURY, THE SIGNING OF THE FAMILY
REGISTER, AND THE CHANGING OF HIS REGISTRATION AT THE POLICE STATION
AND AT THE UNIVERSITY WOULD ASSUME DIFFERENT SIGNIFICANCE; THOSE ACTS
MIGHT THEN READILY SUGGEST THE MAKING OF A DECLARATION OF ALLEGIANCE TO
JAPAN WITHIN THE MEANING OF SEC. 401(B).  IF, ON THE OTHER HAND,
PETITIONER WERE TO BE BELIEVED WHEN IN 1945 HE STATED HE HAD NOT DONE
ACTS BY WHICH HE RENOUNCED HIS AMERICAN CITIZENSHIP, THEN THE KOSEKI
INCIDENT AND THE CHANGES IN HIS POLICE AND UNIVERSITY REGISTRATION
COULD REASONABLY BE TAKEN AS AMOUNTING TO NO MORE THAN A PUBLIC
DECLARATION OF AN ESTABLISHED AND PREEXISTING FACT, VIZ. HIS JAPANESE
NATIONALITY.  WE THINK, IN OTHER WORDS, THAT THE QUESTION WHETHER
PETITIONER HAD RENOUNCED HIS AMERICAN CITIZENSHIP WAS ON THIS RECORD
PECULIARLY FOR THE JURY TO DETERMINE.  THE CHARGE WAS THAT THE JURY
MUST BE SATISFIED BEYOND A REASONABLE DOUBT THAT DURING THE PERIOD
SPECIFIED IN THE INDICTMENT, PETITIONER WAS AN AMERICAN CITIZEN.  WE
CANNOT SAY THERE WAS INSUFFICIENT EVIDENCE FOR THAT FINDING. 

PETITIONER CONCEDES HE DID NOT ENTER THE ARMED SERVICES OF JAPAN
WITHIN THE MEANING OF SEC. 401(C) OF THE ACT BUT CLAIMS THAT DURING HIS
TOUR OF DUTY AT THE OEYAMA CAMP HE WAS "SERVING IN" THE JAPANESE ARMED
SERVICES WITHIN THE STATUTORY MEANING OF THOSE WORDS.  IN THIS
CONNECTION HE ALSO ARGUES THAT HIS WORK IN THE OEYAMA CAMP WAS THE
PERFORMANCE OF THE DUTIES OF AN "OFFICE, POST, OR EMPLOYMENT UNDER THE
GOVERNMENT" OF JAPAN "FOR WHICH ONLY NATIONALS OF SUCH STATE ARE
ELIGIBLE" WITHIN THE MEANING OF SEC. 401(D) OF THE ACT.    THE OEYAMA
NICKEL INDUSTRY CO., LTD., WAS A PRIVATE COMPANY, ORGANIZED FOR
PROFIT.  IT WAS ENGAGED IN PRODUCING METALS USED FOR WAR UNDER
CONTRACTS WITH THE JAPANESE GOVERNMENT.  IN 1944 IT WAS DESIGNATED BY
THE JAPANESE GOVERNMENT AS A MUNITIONS CORPORATION AND UNDER JAPANESE
LAW CIVILIAN EMPLOYEES WERE NOT ALLOWED TO CHANGE OR QUIT THEIR
EMPLOYMENT WITHOUT THE CONSENT OF THE GOVERNMENT.  THE COMPANY'S MINE
AND FACTORY WERE MANNED IN PART BY PRISONERS OF WAR.  THEY LIVED IN A
CAMP CONTROLLED BY THE JAPANESE ARMY.  THOUGH PETITIONER TOOK ORDERS
FROM THE MILITARY, HE WAS NOT A SOLDIER IN THE ARMED SERVICES; HE WORE
INSIGNIA ON HIS UNIFORM DISTINGUISHING HIM AS NONMILITARY PERSONNEL; HE
HAD NO DUTIES TO PERFORM IN RELATION TO THE PRISONERS, EXCEPT THOSE OF
AN INTERPRETER.  HIS EMPLOYMENT WAS AS AN INTERPRETER FOR THE OEYAMA
NICKEL INDUSTRY CO., LTD., A PRIVATE COMPANY.  THE REGULATION OF THE
COMPANY BY THE JAPANESE GOVERNMENT, THE FREEZING OF ITS LABOR FORCE,
THE ASSIGNMENT TO IT OF PRISONERS OF WAR UNDER MILITARY COMMAND WERE
INCIDENTS OF A WAR ECONOMY.  BUT WE FIND NO INDICATION THAT THE OEYAMA
COMPANY WAS NATIONALIZED OR ITS PROPERTIES SEIZED AND OPERATED BY THE
GOVERNMENT.  THE EVIDENCE INDICATES THAT IT WAS A PART OF A REGIMENTED
INDUSTRY; BUT IT WAS AN ORGANIZATION OPERATING FOR PRIVATE PROFIT UNDER
PRIVATE MANAGEMENT.  WE CANNOT SAY THAT PETITIONER'S STATUS AS AN
EMPLOYEE OF A PRIVATE COMPANY WAS CHANGED BY THAT REGIMENTATION OF THE
INDUSTRY. 

IT WOULD REQUIRE A BROAD AND LOOSE CONSTRUCTION OF "OFFICE, POST, OR
EMPLOYMENT UNDER THE GOVERNMENT OF A FOREIGN STATE" AS THOSE WORDS ARE
USED IN SEC. 401(D) TO HOLD THAT PETITIONER HAD SACRIFICED HIS AMERICAN
CITIZENSHIP BY ACCEPTING OR PERFORMING THE DUTIES OF INTERPRETER.  WE
ARE THINKING NOT ONLY OF THIS CASE BUT OF OTHER CASES TO WHICH SEC.
401(D) IS APPLICABLE.  WE ARE RELUCTANT TO RESOLVE THE AMBIGUITY
CONTAINED IN SEC. 401(D) SO AS TO PROVIDE TREACHEROUS GROUND FOR THE
LOSS OF THE RIGHTS OF CITIZENSHIP BY THE NISEI.  AS THE COURT SAID IN
PERKINS V. ELG, SUPRA, P. 337, "RIGHTS OF CITIZENSHIP ARE NOT TO BE
DESTROYED BY AN AMBIGUITY."  IT WOULD BE HARSH INDEED TO HOLD THAT A
NISEI, MAROONED IN JAPAN WHEN WORLD WAR II BROKE OUT, WOULD BE
EXPATRIATED MERELY BY WORKING FOR A PRIVATE COMPANY WHOSE BUSINESS WAS
SUPERVISED AND WHOSE LABOR SUPPLY WAS CONTROLLED BY THE JAPANESE
GOVERNMENT IN TIME OF WAR.  THAT WOULD GIVE SEC. 401(D) A BROAD,
PERVASIVE SWEEP.  SECTION 401(D) NOT ONLY MAKES ACCEPTANCE OF "ANY
OFFICE, POST, OR EMPLOYMENT UNDER THE GOVERNMENT OF A FOREIGN STATE"
THE BASIS OF EXPATRIATION; IT ALSO MAKES "PERFORMING THE DUTIES" OF ANY
SUCH OFFICE, POST, OR EMPLOYMENT A GROUND FOR EXPATRIATION.  ONE WHO
WAS DRAFTED FOR SUCH SERVICE WOULD BE INCLUDED, AS WELL AS ONE WHO
VOLUNTEERED.  IN TIME OF WAR THAT WOULD BRING MOST EMPLOYEES OF PRIVATE
COMPANIES WITHIN THE DANGER ZONE IN VIEW OF THE HOLD WHICH A WAR
ECONOMY PLACES ON INDUSTRY AND THE SUPERVISION AND CONTROL WHICH IT
ASSERTS.  WE THEREFORE INCLINE TO A CONSTRUCTION OF THE WORDS "UNDER
THE GOVERNMENT OF A FOREIGN STATE" TO MEAN THE RELATIONSHIP THAT PUBLIC
EMPLOYEES HAVE WITH THEIR GOVERNMENT OR WITH THE BUREAUS OR
CORPORATIONS WHICH ARE GOVERNMENT OWNED AND CONTROLLED.  SUPPORT FOR
THAT NARROWER MEANING IS FOUND IN THE LEGISLATIVE HISTORY.  (FN3) 

KAWAKITA'S CATEGORY WHO REMAINS SIX MONTHS OR LONGER WITHIN A FOREIGN
STATE OF WHICH HE OR EITHER OF HIS PARENTS SHALL HAVE BEEN A NATIONAL
SHALL BE PRESUMED TO HAVE EXPATRIATED HIMSELF UNDER SEC. 401(C) OR
(D).  SECTION 402 DOES NOT ENLARGE SEC. 401(D) OR (D); IT CREATES A
REBUTTABLE PRESUMPTION OF EXPATRIATION; AND WHEN IT IS SHOWN THAT THE
CITIZEN DID NO ACT WHICH BROUGHT HIM UNDER SEC. 401(C) OR (D), THE
PRESUMPTION IS OVERCOME.  ON THAT SHOWING THE PERSON NEVER LOSES HIS
AMERICAN NATIONALITY.  SEE DOS REIS V. NICOLLS, 161 F.2D 860, 868.  IN
OTHER WORDS, ONCE IT WAS SHOWN THAT PETITIONER WAS NOT EXPATRIATED
UNDER SEC. 401(C) OR (D), THE FORCE OF SEC. 402 WAS SPENT. 

RESULT SOLELY FROM THE PERFORMANCE BY A NATIONAL OF THE ACTS OR
FULFILLMENT OF THE CONDITIONS SPECIFIED IN THIS ACT."  THE DISTRICT
COURT THEREFORE CHARGED THE JURY THAT THE ONLY METHODS OF EXPATRIATION
ARE THOSE CONTAINED IN SEC. 401.  PETITIONER CLAIMS THAT CHARGE WAS
ERROR.  HE ARGUES THAT SEC. 408 IS APPLICABLE ONLY TO THE LOSS OF
NATIONALITY "UNDER THIS ACT" AND THAT THERE ARE OTHER METHODS OF LOSING
IT.  HE REFERS TO R.S. SEC. 1999, 8 U.S.C. SEC. 800, WHICH SURVIVED THE
NATIONALITY ACT OF 1940 AND IS NOT PART OF IT, AND WHICH PROCLAIMS THE
RIGHT OF EXPATRIATION AS "A NATURAL AND INHERENT RIGHT OF ALL PEOPLE." 
(FN6)  WE DO NOT UNDERTAKE TO RESOLVE THE QUESTION FOR THE REASON THAT
IT IS NOT SQUARELY PRESENTED.  ON THIS ISSUE OF EXPATRIATION,
PETITIONER TENDERS NO QUESTION OF FACT WHICH WAS INADMISSIBLE UNDER
SEC. 401.  PETITIONER MERELY SAYS THAT "BY HIS CONDUCT" HE HAD
"EXPATRIATED HIMSELF FROM UNITED STATES CITIZENSHIP."  BUT HE HAS
FAILED TO SHOW THAT THAT ISSUE IS NARROWER THAN OR DIFFERENT FROM THE
ISSUE PRESENTED ON THIS RECORD UNDER SEC. 401(B) - THE DECLARATION OF
ALLEGIANCE TO JAPAN.  AS WE HAVE INDICATED, THE MAJOR FACTUAL PROBLEM
ON THE ISSUE OF EXPATRIATION REVOLVED AROUND THE ENTRY OF PETITIONER'S
NAME IN THE KOSEKI.  ALL OF THE OTHER CONDUCT REFERRED TO, INCLUDING
THE PAYING OF RESPECTS TO THE EMPEROR AND THE EXPRESSIONS OF HOSTILITY
TO THE UNITED STATES, WERE RELEVANT AND ADMISSIBLE ON THAT ISSUE.  IF
IT COULD NOT IN THE EYES OF THE JURY MAKE THE SIGNING OF THE KOSEKI AND
THE CHANGES IN THE REGISTRATION THAT FOLLOWED THAT EVENT TANTAMOUNT TO
RENUNCIATION UNDER SEC. 401(B), IT HARDLY COULD DO SO STANDING ALONE. 
HENCE, IF THERE WAS ERROR IN THE CHARGE, IT WAS HARMLESS. 

THAT CONCLUSION IS REINFORCED BY ANOTHER ASPECT OF THE CASE. 
PETITIONER TESTIFIED THAT HE BELIEVED WHEN HE SIGNED THE KOSEKI THAT HE
LOST HIS AMERICAN CITIZENSHIP.  HE TESTIFIED THAT DURING THE PERIOD
CHARGED IN THE INDICTMENT HE BELIEVED THAT HE WAS NO LONGER AN AMERICAN
CITIZEN.  THE DISTRICT COURT CHARGED THAT IF THE JURY FOUND (1)
DEFENDANT HAD COMMITTED ANY OVERT ACT CHARGED IN THE INDICTMENT AND (2)
HE WAS AN AMERICAN CITIZEN, YET THEY SHOULD NOT CONVICT IF THEY FURTHER
FOUND THAT AT THE TIME "THE DEFENDANT HONESTLY BELIEVED THAT HE WAS NO
LONGER A CITIZEN OF THE UNITED STATES" SINCE IN THAT EVENT HE COULD NOT
HAVE COMMITTED THE ACT WITH TREASONABLE INTENT.  UNDER THIS CHARGE THE
BELIEF OF PETITIONER THAT HE HAD RENOUNCED HIS AMERICAN CITIZENSHIP WAS
SUFFICIENT TO ACQUIT IF THE JURY BELIEVED HIM.  HIS BELIEF COULD NOT
HAVE BEEN MADE MORE RELEVANT TO THE ISSUE OF GUILT IF IT HAD BEEN
ADMITTED AS PROOF OF EXPATRIATION SEPARATE AND APART FROM THE OTHER
GROUNDS SPECIFIED IN SEC. 401 OF THE ACT.  HENCE EVEN IF WE ASSUME,
ARGUENDO, THAT THE COURT WAS WRONG IN CHARGING THAT SEC. 408 MADE THE
GROUNDS SPECIFIED IN SEC. 401 EXCLUSIVE, THE ERROR WAS HARMLESS. 

SECOND.  PETITIONER CONTENDS THAT A PERSON WHO HAS A DUAL NATIONALITY
CAN BE GUILTY OF TREASON ONLY TO THE COUNTRY WHERE HE RESIDES, NOT TO
THE OTHER COUNTRY WHICH CLAIMS HIM AS A NATIONAL.  MORE SPECIFICALLY,
HE MAINTAINS THAT WHILE PETITIONER RESIDED IN JAPAN HE OWED HIS
PARAMOUNT ALLEGIANCE TO THAT COUNTRY AND WAS INDEED, IN THE EYES OF OUR
LAW, AN ALIEN ENEMY. 

THE ARGUMENT IN ITS BROADEST REACH IS THAT TREASON AGAINST THE UNITED
STATES CANNOT BE COMMITTED ABROAD OR IN ENEMY TERRITORY, AT LEAST BY AN
AMERICAN WITH A DUAL NATIONALITY RESIDING IN THE OTHER COUNTRY WHICH
CLAIMS HIM AS A NATIONAL.  THE DEFINITION OF TREASON, HOWEVER,
CONTAINED IN THE CONSTITUTION CONTAINS NO TERRITORIAL LIMITATION. 
"TREASON AGAINST THE UNITED STATES, SHALL CONSIST ONLY IN LEVYING WAR
AGAINST THEM, OR IN ADHERING TO THEIR ENEMIES, GIVING THEM AID AND
COMFORT  ... ."  ART. III, SEC. 3.  A SUBSTITUTE PROPOSAL CONTAINING
SOME TERRITORIAL LIMITATIONS WAS REJECTED BY THE CONSTITUTIONAL
CONVENTION.  SEE 2 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION, PP.
347-348.  THE ACT OF APRIL 30, 1790, 1 STAT. 112, WHICH WAS PASSED BY
THE FIRST CONGRESS DEFINING THE CRIME OF TREASON LIKEWISE CONTAINED NO
TERRITORIAL LIMITATION; AND THAT LEGISLATION IS CONTAINED IN
SUBSTANTIALLY THE SAME FORM IN THE PRESENT STATUTE.  18 U.S.C. (SUPP.
IV) SEC. 2381.  (FN7)  WE MUST THEREFORE REJECT THE SUGGESTION THAT AN
AMERICAN CITIZEN LIVING BEYOND THE TERRITORIAL LIMITS OF THE UNITED
STATES MAY NOT COMMIT TREASON AGAINST THEM.  SEE CHANDLER V. UNITED
STATES, 171 F.2D 921, 929-930; BURGMAN V. UNITED STATES, 88 U.S. APP.
D.C. 184, 185, 188 F.2D 637, 640. 

ONE WHO HAS A DUAL NATIONALITY WILL BE SUBJECT TO CLAIMS FROM BOTH
NATIONS, CLAIMS WHICH AT TIMES MAY BE COMPETING OR CONFLICTING.  THE
NATURE OF THOSE CLAIMS HAS RECENTLY BEEN STATED AS FOLLOWS: 

"A PERSON WITH DUAL NATIONALITY MAY BE SUBJECTED TO TAXES BY BOTH
STATES OF WHICH HE IS A NATIONAL.  HE IS NOT ENTITLED TO PROTECTION BY
ONE OF THE TWO STATES OF WHICH HE IS A NATIONAL WHILE IN THE
TERRITORIAL JURISDICTION OF THE OTHER.  EITHER STATE NOT AT WAR WITH
THE OTHER MAY INSIST ON MILITARY SERVICE WHEN THE PERSON IS PRESENT
WITHIN ITS TERRITORY.  IN TIME OF WAR IF HE SUPPORTS NEITHER
BELLIGERENT, BOTH MAY BE AGGRIEVED.  IF HE SUPPORTS ONE BELLIGERENT,
THE OTHER MAY BE AGGRIEVED.  ONE STATE MAY BE SUSPICIOUS OF HIS LOYALTY
TO IT AND SUBJECT HIM TO THE DISABILITIES OF AN ENEMY ALIEN, INCLUDING
SEQUESTRATION OF HIS PROPERTY, WHILE THE OTHER HOLDS HIS CONDUCT
TREASONABLE."  ORFIELD, THE LEGAL EFFECTS OF DUAL NATIONALITY, 17 GEO.
WASH. L. REV. 427, 429. 

DUAL NATIONALITY, HOWEVER, IS THE UNAVOIDABLE CONSEQUENCE OF THE
CONFLICTING LAWS OF DIFFERENT COUNTRIES.  SEE 3 HACKWORTH, SUPRA, PP.
352 ET SEQ. ONE WHO BECOMES A CITIZEN OF THIS COUNTRY BY REASON OF
BIRTH RETAINS IT, EVEN THOUGH BY THE LAW OF ANOTHER COUNTRY HE IS ALSO
A CITIZEN OF IT. HE CAN UNDER CERTAIN CIRCUMSTANCES BE DEPRIVED OF HIS
AMERICAN CITIZENSHIP THROUGH THE OPERATION OF A TREATY OR AN ACT OF
CONGRESS; HE CAN ALSO LOSE IT BY VOLUNTARY ACTION.  SEE PERKINS V. ELG,
SUPRA, P. 329.  BUT AMERICAN CITIZENSHIP, UNTIL LOST, CARRIES
OBLIGATIONS OF ALLEGIANCE AS WELL AS PRIVILEGES AND BENEFITS.  FOR ONE
WHO HAS A DUAL STATUS THE OBLIGATIONS OF AMERICAN CITIZENSHIP MAY AT
TIMES BE DIFFICULT TO DISCHARGE.  AN AMERICAN WHO HAS A DUAL
NATIONALITY MAY FIND HIMSELF IN A FOREIGN COUNTRY WHEN IT WAGES WAR ON
US.  THE VERY FACT THAT HE MUST MAKE A LIVELIHOOD THERE MAY INDIRECTLY
HELP THE ENEMY NATION.  IN THESE DAYS OF TOTAL WAR MANPOWER BECOMES
CRITICAL AND EVERYONE WHO CAN BE PLACED IN A PRODUCTIVE POSITION
INCREASES THE STRENGTH OF THE ENEMY TO WAGE WAR.  OF COURSE, A PERSON
CAUGHT IN THAT PREDICAMENT CAN RESOLVE THE CONFLICT OF DUTY BY OPENLY
ELECTING ONE NATIONALITY OR THE OTHER AND BECOMING EITHER AN ALIEN
ENEMY OF THE COUNTRY WHERE HE RESIDES OR A NATIONAL OF IT ALONE.  YET,
SO FAR AS THE EXISTING LAW OF THIS COUNTRY IS CONCERNED, HE NEED NOT
MAKE THAT CHOICE BUT CAN CONTINUE HIS DUAL CITIZENSHIP.  IT HAS BEEN
STATED IN AN ADMINISTRATIVE RULING OF THE STATE DEPARTMENT THAT A
PERSON WITH A DUAL CITIZENSHIP WHO LIVES ABROAD IN THE OTHER COUNTRY
CLAIMING HIM AS A NATIONAL OWES AN ALLEGIANCE TO IT WHICH IS PARAMOUNT
TO THE ALLEGIANCE HE OWES THE UNITED STATES.  (FN8)  THAT IS A FAR CRY
FROM A RULING THAT A CITIZEN IN THAT POSITION OWES NO ALLEGIANCE TO THE
UNITED STATES.  OF COURSE, AN AMERICAN CITIZEN WHO IS ALSO A JAPANESE
NATIONAL LIVING IN JAPAN HAS OBLIGATIONS TO JAPAN NECESSITATED BY HIS
RESIDENCE THERE.  THERE MIGHT CONCEIVABLY BE CASES WHERE THE MERE
NONPERFORMANCE OF THE ACTS COMPLAINED OF WOULD BE A BREACH OF JAPANESE
LAW.  HE MAY HAVE EMPLOYMENT WHICH REQUIRES HIM TO PERFORM CERTAIN
ACTS.  THE COMPULSION MAY COME FROM THE FACT THAT HE IS DRAFTED FOR THE
JOB OR THAT HIS CONDUCT IS DEMANDED BY THE LAWS OF JAPAN.  HE MAY BE
COERCED BY HIS EMPLOYER OR SUPERVISOR OR BY THE FORCE OF CIRCUMSTANCES
TO DO THINGS WHICH HE HAS NO DESIRE OR HEART TO DO.  THAT WAS ONE OF
PETITIONER'S DEFENSES IN THIS CASE.  SUCH ACTS - IF DONE VOLUNTARILY
AND WILLFULLY - MIGHT BE TREASONABLE.  BUT IF DONE UNDER THE COMPULSION
OF THE JOB OR THE LAW OR SOME OTHER INFLUENCE, THOSE ACTS WOULD NOT
RISE TO THE GRAVITY OF THAT OFFENSE.  THE TRIAL JUDGE RECOGNIZED THE
DISTINCTION IN HIS CHARGE WHEN HE INSTRUCTED THE JURY TO ACQUIT
PETITIONER IF HE DID NOT DO THE ACTS WILLINGLY OR VOLUNTARILY "BUT SO
ACTED ONLY BECAUSE PERFORMANCE OF THE DUTIES OF HIS EMPLOYMENT REQUIRED
HIM TO DO SO OR BECAUSE OF OTHER COERCION OR COMPULSION."  IN SHORT,
PETITIONER WAS HELD ACCOUNTABLE BY THE JURY ONLY FOR PERFORMING ACTS OF
HOSTILITY TOWARD THIS COUNTRY WHICH HE WAS NOT REQUIRED BY JAPAN TO
PERFORM. 

IF HE CAN RETAIN THAT FREEDOM AND STILL REMAIN AN AMERICAN CITIZEN,
THERE IS NOT EVEN A MINIMUM OF ALLEGIANCE WHICH HE OWES TO THE UNITED
STATES WHILE HE RESIDES IN THE ENEMY COUNTRY.  THAT CONCLUSION IS
HOSTILE TO THE CONCEPT OF CITIZENSHIP AS WE KNOW IT, AND IT MUST BE
REJECTED.  ONE WHO WANTS THAT FREEDOM CAN GET IT BY RENOUNCING HIS
AMERICAN CITIZENSHIP.  HE CANNOT TURN IT INTO A FAIR-WEATHER
CITIZENSHIP, RETAINING IT FOR POSSIBLE CONTINGENT BENEFITS BUT
MEANWHILE PLAYING THE PART OF THE TRAITOR.  AN AMERICAN CITIZEN OWES
ALLEGIANCE TO THE UNITED STATES WHEREVER HE MAY RESIDE. 

CIRCUMSTANCES MAY COMPEL ONE WHO HAS A DUAL NATIONALITY TO DO ACTS
WHICH OTHERWISE WOULD NOT BE COMPATIBLE WITH THE OBLIGATIONS OF
AMERICAN CITIZENSHIP.  AN AMERICAN WITH A DUAL NATIONALITY WHO IS
CHARGED WITH PLAYING THE ROLE OF THE TRAITOR MAY DEFEND BY SHOWING THAT
FORCE OR COERCION COMPELLED SUCH CONDUCT.  THE JURY REJECTED THAT
VERSION OF THE FACTS WHICH PETITIONER TENDERED.  HE IS THEREFORE FORCED
TO MAINTAIN THAT, BEING A NATIONAL AND A RESIDENT OF JAPAN, HE OWED NO
ALLEGIANCE TO THE UNITED STATES EVEN THOUGH HE WAS AN AMERICAN
CITIZEN.  THAT PROPOSITION WE REJECT.    THIRD.  ARTICLE III, SEC. 3 OF
THE CONSTITUTION PROVIDES, "TREASON AGAINST THE UNITED STATES, SHALL
CONSIST ONLY IN LEVYING WAR AGAINST THEM, OR IN ADHERING TO THEIR
ENEMIES, GIVING THEM AID AND COMFORT.  NO PERSON SHALL BE CONVICTED OF
TREASON UNLESS ON THE TESTIMONY OF TWO WITNESSES TO THE SAME OVERT ACT,
OR ON CONFESSION IN OPEN COURT." 

SO FAR AS MATERIAL HERE, THE CRIME THUS CONSISTS OF TWO ELEMENTS -
ADHERING TO THE ENEMY; AND GIVING HIM AID AND COMFORT.  SEE CRAMER V.
UNITED STATES, 325 U.S. 1, 29.  ONE MAY THINK DISLOYAL THOUGHTS AND
HAVE HIS HEART ON THE SIDE OF THE ENEMY.  YET IF HE COMMITS NO ACT
GIVING AID AND COMFORT TO THE ENEMY, HE IS NOT GUILTY OF TREASON.  HE
MAY ON THE OTHER HAND COMMIT ACTS WHICH DO GIVE AID AND COMFORT TO THE
ENEMY AND YET NOT BE GUILTY OF TREASON, AS FOR EXAMPLE WHERE HE ACTS
IMPULSIVELY WITH NO INTENT TO BETRAY.  TWO WITNESSES ARE REQUIRED NOT
TO THE DISLOYAL AND TREACHEROUS INTENTION BUT TO THE SAME OVERT ACT. 
SEE CRAMER V. UNITED STATES, SUPRA, PP. 30, 31. 

THE JURY FOUND PETITIONER GUILTY OF EIGHT OVERT ACTS.  (FN9)  ONE
OVERT ACT ALONE, PROPERLY PROVED, WOULD BE SUFFICIENT TO SUSTAIN THE
CONVICTION, ALL OTHER ELEMENTS OF THE CRIME OF TREASON BEING
ESTABLISHED.  SINCE THE JURY RETURNED SPECIAL VERDICTS AND FINDINGS AS
TO EACH OF THE EIGHT OVERT ACTS, WE COULD NOT UPSET THE JUDGMENT OF
CONVICTION, UNLESS ALL EIGHT WERE INSUFFICIENT.  SEE HAUPT V. UNITED
STATES, 330 U.S. 631, 641.  WE CONCLUDE, HOWEVER, THAT EACH OF THE
EIGHT OVERT ACTS WAS PROPERLY PROVED. 

EACH OF THESE RELATED TO HIS TREATMENT OF AMERICAN PRISONERS OF WAR
AT THE OEYAMA CAMP.  THESE PRISONERS WERE MOSTLY FROM BATAAN AND WERE
IN WEAKENED CONDITION ON THEIR ARRIVAL.  ALL WERE BELOW NORMAL WEIGHT;
MANY OF THEM WERE SUFFERING FROM DISEASE; MOST OF THEM WERE UNFIT FOR
WORK.  THEY WERE ASSIGNED TO WORK EITHER IN THE FACTORY OR AT THE MINE
OF THE OEYAMA COMPANY.  THEY WERE UNDER THE SUPERVISION OF THE JAPANESE
ARMY.  PETITIONER WAS A CIVILIAN INTERPRETER, AS WE HAVE SAID.  THERE
WAS EVIDENCE THAT HE HAD NO AUTHORITY AND NO DUTIES, AS RESPECTS THE
PRISONERS, EXCEPT AS AN INTERPRETER.  YET THE RECORD SHOWS A LONG,
PERSISTENT, AND CONTINUOUS COURSE OF CONDUCT DIRECTED AGAINST THE
AMERICAN PRISONERS AND GOING BEYOND ANY CONCEIVABLE DUTY OF AN
INTERPRETER. 

AFTER THE AMERICAN PRISONERS ARRIVED, THE JAPANESE AUTHORITIES RAISED
THE QUOTA OF ORE WHICH THEY WERE EXPECTED TO PRODUCE EACH DAY.  THE
QUOTA HAD BEEN BETWEEN 120 AND 165 CARLOADS A DAY; NOW IT WAS INCREASED
TO 200.  A PART OF PETITIONER'S CONDUCT WAS SWEARING AT THE PRISONERS,
BEATING THEM, THREATENING THEM, AND PUNISHING THEM FOR NOT WORKING
FASTER AND HARDER, FOR FAILING TO FILL THEIR QUOTAS, FOR RESTING, AND
FOR SLOWING DOWN. 

THERE WERE TWO OVERT ACTS IN THIS CATEGORY.  OVERT ACT (A) AS ALLEGED
IN THE INDICTMENT AND DEVELOPED AT THE TRIAL WAS THAT IN MAY, 1945,
PETITIONER KICKED A PRISONER NAMED TOLAND WHO WAS ILL, BECAUSE HE
SLOWED DOWN IN LIFTING PIECES OF ORE ROCKS FROM THE TRACKS AT THE
FACTORY TO KEEP THE TRACKS CLEAR.  TOLAND HAD SUFFERED A DIZZY SPELL
AND SLOWED DOWN.  PETITIONER TOLD HIM TO GET TO WORK AND THEREUPON
KICKED HIM, CAUSING HIM TO FALL FLAT AND TO CUT HIS FACE AND HAND. 
ANOTHER PRISONER WANTED TO PICK TOLAND UP; BUT PETITIONER WOULD NOT LET
HIM.  OVERT ACT (J) AS ALLEGED IN THE INDICTMENT AND DEVELOPED AT THE
TRIAL WAS THAT IN MAY, 1945, PETITIONER STRUCK A PRISONER NAMED
ARMELLINO, WHO WAS WEAK AND EMACIATED, IN ORDER TO MAKE HIM CARRY MORE
LEAD.  ARMELLINO HAD BEEN CARRYING ONLY ONE BUCKET OF LEAD.  PETITIONER
THEREUPON STRUCK HIM, CAUSING HIM TO FALL.  WHEN HE GOT UP, PETITIONER
FORCED HIM TO CARRY TWO BUCKETS, PUSHING HIM ALONG. 

EACH OF THESE ACTS WAS AIMED AT GETTING MORE WORK OUT OF THE
PRISONERS - WORK THAT PRODUCED MUNITIONS OF WAR FOR THE ENEMY, OR SO
THE JURY MIGHT HAVE CONCLUDED.  THE INCREASED EFFORTS CHARGED IN OVERT
ACTS (A) AND (J) WERE SMALL; THE CONTRIBUTION TO THE WAR EFFORT OF THE
ENEMY CERTAINLY WAS MINOR, NOT CRUCIAL.  HARBORING THE SPY IN HAUPT V.
UNITED STATES, SUPRA, WAS ALSO INSIGNIFICANT IN THE TOTAL WAR EFFORT OF
GERMANY DURING THE RECENT WAR.  YET IT WAS A TREASONABLE ACT.  IT IS
THE NATURE OF THE ACT THAT IS IMPORTANT.  THE ACT MAY BE UNNECESSARY TO
A SUCCESSFUL COMPLETION OF THE ENEMY'S PROJECT; IT MAY BE AN ABORTIVE
ATTEMPT; IT MAY IN THE SUM TOTAL OF THE ENEMY'S EFFORT BE A CASUAL AND
UNIMPORTANT STEP.  BUT IF IT GIVES AID AND COMFORT TO THE ENEMY AT THE
IMMEDIATE MOMENT OF ITS PERFORMANCE, IT QUALIFIES AS AN OVERT ACT
WITHIN THE CONSTITUTIONAL STANDARD OF TREASON.  AS CHIEF JUSTICE
MARSHALL SAID IN EX PARTE BOLLMAN, 4 CRANCH 75, 126, "IF WAR BE
ACTUALLY LEVIED,  ... ALL THOSE WHO PERFORM ANY PART, HOWEVER MINUTE,
OR HOWEVER REMOTE FROM THE SCENE OF ACTION, AND WHO ARE ACTUALLY
LEAGUED IN THE GENERAL CONSPIRACY, ARE TO BE CONSIDERED AS TRAITORS." 
THESE TWO OVERT ACTS, IF DESIGNED TO SPEED UP JAPAN'S WAR PRODUCTION,
PLAINLY GAVE AID AND COMFORT TO THE ENEMY IN THE CONSTITUTIONAL SENSE. 

THE OTHER OVERT ACTS WERE ACTS OF CRUELTY TO AMERICAN PRISONERS OF
WAR. 

OVERT ACT (B) AS ALLEGED IN THE INDICTMENT AND DEVELOPED AT THE TRIAL
WAS THAT ONE GRANT, AN AMERICAN PRISONER, HAD BEEN SEEN BY A JAPANESE
SENTRY COMING OUT OF THE RED CROSS STOREROOM WITH A PACKAGE OF
CIGARETTES.  HE WAS THEREUPON THROWN INTO A CESSPOOL BY A JAPANESE
SERGEANT, ORDERED OUT, AND KNOCKED BACK REPEATEDLY.  WHILE GRANT WAS IN
THE CESSPOOL, PETITIONER HIT HIM OVER THE HEAD WITH A WOODEN POLE OR
SWORD, TOLD HIM TO SQUAT DOWN, AND TRIED TO FORCE HIM TO SIT IN THE
WATER.  WHEN GRANT WAS TAKEN FROM THE POOL, HE WAS BLUE, HIS TEETH WERE
CHATTERING, AND HE COULD NOT STRAIGHTEN UP. 

OVERT ACT (C) AS ALLEGED IN THE INDICTMENT AND DEVELOPED AT THE TRIAL
WAS THAT IN DECEMBER, 1944, PETITIONER AND JAPANESE GUARDS LINED UP
ABOUT 30 AMERICAN PRISONERS AND, AS PUNISHMENT FOR MAKING ARTICLES OF
CLOTHING OUT OF BLANKETS, STRUCK THEM AND FORCED THEM TO STRIKE EACH
OTHER.  PETITIONER HIT PRISONERS WHO, HE THOUGHT, DID NOT HIT EACH
OTHER HARD ENOUGH. 

OVERT ACT (D) AS ALLEGED IN THE INDICTMENT AND DEVELOPED AT THE TRIAL
WAS THAT PETITIONER IMPOSED CRUELTY ON O'CONNOR, AN AMERICAN PRISONER,
WHO WAS SICK AND HAD STOLEN RED CROSS SUPPLIES.  HE WAS KNOCKED INTO
THE CESSPOOL BY JAPANESE SOLDIERS AND THEN REPEATEDLY HIT AND THROWN
BACK INTO THE POOL BY THEM AND BY PETITIONER WITH THE RESULT THAT
O'CONNOR TEMPORARILY LOST HIS REASON. 

OVERT ACT (G) AS ALLEGED IN THE INDICTMENT AND DEVELOPED AT THE TRIAL
WAS THAT IN JULY OR AUGUST, 1945, A JAPANESE SERGEANT COMPELLED A WORK
DETAIL OF AMERICAN PRISONERS, WHO HAD RETURNED EARLY, TO RUN AROUND A
QUADRANGLE.  PETITIONER FORCED TWO OF THE AMERICANS, WHO WERE UNABLE TO
RUN FAST BECAUSE OF ILLNESS, TO RUN THE COURSE AN ADDITIONAL FOUR AND
SIX TIMES RESPECTIVELY.  PETITIONER THREW PEBBLES AND SOD AT THEM TO
MAKE THEM RUN FASTER. 

OVERT ACT (I) AS ALLEGED IN THE INDICTMENT AND DEVELOPED AT THE TRIAL
WAS THAT IN DECEMBER, 1944, PETITIONER ORDERED ONE CARTER, AN AMERICAN
PRISONER OF WAR, TO CARRY A HEAVY LOG UP AN ICE-COVERED SLOPE AT THE
MINE.  WHEN CARTER SLIPPED, FELL, AND WAS INJURED, PETITIONER ALTHOUGH
HE KNEW CARTER WAS BADLY HURT AND NEEDED ATTENTION DELAYED HIS REMOVAL
BACK TO CAMP FOR APPROXIMATELY FIVE HOURS. 

OVERT ACT (K) AS ALLEGED IN THE INDICTMENT AND DEVELOPED AT THE TRIAL
WAS THAT IN THE SPRING OR SUMMER OF 1945 PETITIONER PARTICIPATED IN THE
INHUMAN PUNISHMENT OF ONE SHAFFER, AN AMERICAN PRISONER OF WAR. 
SHAFFER WAS FORCED TO KNEEL ON BAMBOO STICKS ON A PLATFORM WITH A
BAMBOO STICK INSIDE THE JOINTS OF HIS KNEES, AND TO KEEP HIS ARMS ABOVE
HIS HEAD HOLDING A BUCKET OF WATER AND LATER A LOG.  WHEN SHAFFER
BECAME TIRED AND BENT HIS ELBOWS, PETITIONER WOULD STRIKE HIM.  WHEN
SHAFFER LEANED OVER AND SPILLED SOME WATER, PETITIONER WOULD TAKE THE
BUCKET, THROW THE WATER ON SHAFFER, AND HAVE THE BUCKET REFILLED.  THEN
SHAFFER WAS REQUIRED TO HOLD UP A LOG.  IT FELL ON HIM, CAUSING A
GASH.  AFTER THE WOUND WAS TREATED, PETITIONER PLACED BAMBOO STICKS ON
THE GROUND AND ONCE MORE MADE SHAFFER KNEEL ON THEM AND GO THROUGH THE
SAME PERFORMANCE. 

AS WE HAVE SAID, PETITIONER WAS NOT REQUIRED BY HIS EMPLOYMENT TO
INFLICT PUNISHMENT ON THE PRISONERS.  HIS DUTIES REGARDING THE
PRISONERS RELATED SOLELY TO THE ROLE OF INTERPRETER.  HIS ACTS OF
CRUELTY TOWARD THE PRISONERS WERE OVER AND BEYOND THE CALL OF DUTY OF
HIS JOB, OR SO THE JURY MIGHT HAVE FOUND.  WE CANNOT SAY AS A MATTER OF
LAW THAT PETITIONER DID THESE ACTS UNDER COMPULSION.  HE SEEKS,
HOWEVER, TO FIND PROTECTION UNDER JAPANESE MUNICIPAL LAW.  IT IS
DIFFICULT TO SEE HOW THAT ARGUMENT HELPS PETITIONER.  THE SOURCE OF THE
LAW OF TREASON IS THE CONSTITUTION.  IF AN AMERICAN CITIZEN IS A
TRAITOR BY THE CONSTITUTIONAL DEFINITION, HE GAINS NO IMMUNITY BECAUSE
THE SAME ACTS MAY HAVE BEEN UNLAWFUL UNDER THE LAW OF THE COUNTRY WHERE
THE ACTS WERE PERFORMED.  TREASON IS A SEPARATE OFFENSE; TREASON CAN BE
COMMITTED BY ONE WHO SCRUPULOUSLY OBSERVES THE LAWS OF OTHER NATIONS;
AND HIS ACTS MAY BE NONETHELESS TREASONABLE THOUGH THE SAME CONDUCT
AMOUNTS TO A DIFFERENT CRIME.  IT WOULD TAKE A LONG CHAPTER TO RELATE
THE NUMEROUS ACTS THAT SUPPLEMENT THE CRIME OF TREASON AND BUILD
DIFFERENT AND LESSER CRIMES OUT OF THE SAME OR RELATED ACTS.  SEE
CRAMER V. UNITED STATES, SUPRA, P. 45.  BUT NO MATTER THE REACH OF THE
LEGISLATIVE POWER IN DEFINING OTHER CRIMES, THE CONSTITUTIONAL
REQUIREMENTS FOR TREASON REMAIN THE SAME.  THE CRIME OF TREASON CAN BE
TAKEN OUT OF THE CONSTITUTION BY THE PROCESSES OF AMENDMENT; BUT THERE
IS NO OTHER WAY TO MODIFY OR ALTER IT. 

THE JURY FOUND THAT EACH OF THE SIX OVERT ACTS OF CRUELTY ACTUALLY
GAVE AID AND COMFORT TO THE ENEMY.  WE AGREE.  THESE WERE NOT ACTS
INNOCENT AND COMMONPLACE IN APPEARANCE AND GAINING TREASONABLE
SIGNIFICANCE ONLY BY REFERENCE TO OTHER EVIDENCE, AS IN CRAMER V.
UNITED STATES, SUPRA. THEY WERE ACTS WHICH SHOWED MORE THAN SYMPATHY
WITH THE ENEMY, MORE THAN A LACK OF ZEAL IN THE AMERICAN CAUSE, MORE
THAN A BREAKING OF ALLEGIANCE TO THE UNITED STATES.  THEY SHOWED
CONDUCT WHICH ACTUALLY PROMOTED THE CAUSE OF THE ENEMY.  THEY WERE ACTS
WHICH TENDED TO STRENGTHEN THE ENEMY AND ADVANCE ITS INTERESTS.  THESE
ACTS IN THEIR SETTING WOULD HELP MAKE ALL THE PRISONERS FEARFUL,
DOCILE, AND SUBSERVIENT.  BECAUSE OF THESE PUNISHMENTS THE PRISONERS
WOULD BE LESS LIKELY TO BE TROUBLESOME; THEY WOULD NEED FEWER GUARDS;
THEY WOULD REQUIRE LESS WATCHING.  THESE ACTS WOULD TEND TO GIVE THE
ENEMY THE "HEART AND COURAGE TO GO ON WITH THE WAR."  THAT WAS THE TEST
LAID DOWN BY LORD CHIEF JUSTICE TREBY IN TRIAL OF CAPTAIN VAUGHAN, 13
HOW.  ST. TR. 485, 533.  IT IS A SUFFICIENT MEASURE OF THE OVERT ACT
REQUIRED BY THE CONSTITUTION.  CRAMER V. UNITED STATES, SUPRA, PP. 28,
29, 34.  ALL OF THE OVERT ACTS TENDED TO STRENGTHEN JAPAN'S WAR
EFFORTS; ALL OF THEM ENCOURAGED THE ENEMY AND ADVANCED ITS INTERESTS. 

PETITIONER CONTENDS THAT THE OVERT ACTS WERE NOT SUFFICIENTLY PROVED
BY TWO WITNESSES.  EACH WITNESS WHO TESTIFIED TO AN OVERT ACT WAS,
HOWEVER, AN EYE-WITNESS OF THE COMMISSION OF THAT ACT.  THEY WERE
PRESENT AND SAW OR HEARD THAT TO WHICH THEY TESTIFIED.  IN SOME
INSTANCES THERE WAS A VARIANCE AS TO DETAILS.  THUS OVERT ACT (B) WAS
TESTIFIED TO BY THIRTEEN WITNESSES.  THEY DID NOT ALL AGREE AS TO THE
EXACT DATE WHEN THE OVERT ACT OCCURRED, WHETHER IN APRIL, MAY, OR JUNE,
1945.  BUT THEY ALL AGREED THAT IT DID TAKE PLACE, THAT GRANT WAS THE
VICTIM, AND THAT IT HAPPENED BETWEEN 3 AND 6 O'CLOCK IN THE AFTERNOON;
AND MOST OF THEM AGREED THAT PETITIONER STRUCK GRANT.  THE COURT OF
APPEALS CONCLUDED, AND WE AGREE, THAT THE DISAGREEMENT AMONG THE
WITNESSES WAS NOT ON WHAT TOOK PLACE BUT ON COLLATERAL DETAILS.  "WHILE
TWO WITNESSES MUST TESTIFY TO THE SAME ACT, IT IS NOT REQUIRED THAT
THEIR TESTIMONY BE IDENTICAL."  HAUPT V. UNITED STATES, SUPRA, P. 640. 
THERE IS NO DOUBT THAT AS RESPECTS EACH OF THE EIGHT OVERT ACTS THE
WITNESSES WERE ALL TALKING ABOUT THE SAME INCIDENT AND WERE DESCRIBING
THE SAME CONDUCT ON PETITIONER'S PART. 

FOURTH.  PETITIONER CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO
SHOW THE SECOND ELEMENT IN THE CRIME OF TREASON - ADHERING TO THE
ENEMY.  THE TWO-WITNESS REQUIREMENT DOES NOT EXTEND TO THIS ELEMENT. 
CRAMER V. UNITED STATES, SUPRA, P. 31.  INTENT TO BETRAY MUST BE
INFERRED FROM CONDUCT.  IT MAY BE INFERRED FROM THE OVERT ACTS
THEMSELVES (CRAMER V. UNITED STATES, SUPRA, P. 31), FROM THE
DEFENDANT'S OWN STATEMENTS OF HIS ATTITUDES TOWARD THE WAR EFFORT
(HAUPT V. UNITED STATES, SUPRA, P. 642), AND FROM HIS OWN PROFESSIONS
OF LOYALTY TO JAPAN. 

EVIDENCE OF WHAT PETITIONER SAID DURING THIS PERIOD CONCERNING THE
WAR EFFORT AND HIS PROFESSIONS OF LOYALTY, IF BELIEVED BY THE JURY,
LEAVES LITTLE DOUBT OF HIS TRAITOROUS INTENT.  "IT LOOKS LIKE MACARTHUR
TOOK A RUN-OUT POWDER ON YOU BOYS"; "THE JAPANESE WERE A LITTLE
SUPERIOR TO YOUR AMERICAN SOLDIERS"; "YOU AMERICANS DON'T HAVE NO
CHANCE.  WE WILL WIN THE WAR."  "WELL, YOU GUYS NEEDN'T BE INTERESTED
IN WHEN THE WAR WILL BE OVER BECAUSE YOU WON'T GO BACK; YOU WILL STAY
HERE AND WORK.  I WILL GO BACK TO THE STATES BECAUSE I AM AN AMERICAN
CITIZEN"; "WE WILL KILL ALL YOU PRISONERS RIGHT HERE ANYWAY, WHETHER
YOU WIN THE WAR OR LOSE IT.  YOU WILL NEVER GET TO GO BACK TO THE
STATES"; "I WILL BE GLAD WHEN ALL OF THE AMERICANS IS DEAD, AND THEN I
CAN GO HOME AND LIVE HAPPY."  THESE ARE SOME OF THE STATEMENTS
PETITIONER MADE ALIGNING HIMSELF WITH THE JAPANESE CAUSE.  THERE WAS
ALSO EVIDENCE THAT HE SAID THAT THE PRISONERS WOULD NEVER GO BACK TO
THEIR WIVES AND THEIR FAMILIES, THAT JAPAN WOULD WIN THE WAR AND THAT
HE WOULD RETURN TO THE UNITED STATES AS AN IMPORTANT MAN, THAT JAPAN
WOULD WIN IF IT TOOK 100 YEARS, THAT THE JAPANESE WERE SUPERIOR TO THE
AMERICANS AND IF THE AMERICAN ARMY HAD JAPANESE OFFICERS, THEY COULD
WHIP THE WORLD, THAT THERE WERE MORE AMERICAN BOYS WHO WOULD BE
AVAILABLE TO DO THE WORK, IF THE PRESENT PRISONERS WERE TOO WEAK TO
WORK.  AND ON THE DAY THE WORK AT THE CAMP ENDED AFTER JAPAN
SURRENDERED HE COMMENTED, "YOU AMERICAN BASTARDS WILL BE WELL FED" OR
"YOU WILL BE GETTING FAT FROM NOW ON."    THERE WAS EVIDENCE THAT IN
MAY OR JUNE, 1945, PETITIONER SAID, "IT DON'T MAKE A DAMN TO ME WHICH
WAY THE WAR GOES BECAUSE I AM GOING BACK TO THE STATES ANYWAY."  AT THE
TRIAL HE SAID HE FELT NO LOYALTY TO THE UNITED STATES DURING THE PERIOD
FROM MARCH 1943 TO DECEMBER 1945, AND THAT HE INTENDED TO DO EVERYTHING
HE COULD TO HELP JAPAN.  HE ALSO TESTIFIED THAT THE FIRST LOYALTY HE
FELT TO THE UNITED STATES, FOLLOWING THE ENTRY OF HIS NAME IN THE
KOSEKI, WAS WHEN HE APPLIED FOR REGISTRATION AS AN AMERICAN CITIZEN IN
DECEMBER, 1945, AND ONCE MORE TOOK THE OATH OF ALLEGIANCE.  YET WE HAVE
ALREADY SEEN THAT IN CONNECTION WITH THAT APPLICATION HE CONCEDED HIS
DUAL NATIONALITY AND THE CONTINUANCE OF HIS AMERICAN CITIZENSHIP DURING
HIS ENTIRE STAY IN JAPAN. 

IF THE VERSIONS OF PETITIONER'S WORDS AND CONDUCT AT THE OEYAMA CAMP,
TESTIFIED TO BY THE VARIOUS WITNESSES, WERE BELIEVED, THE TRAITOROUS
INTENT WOULD BE SHOWN BY OVERWHELMING EVIDENCE.  PETITIONER INDEED
CONCEDED AT THE TRIAL THAT HE FELT NO LOYALTY TO THE UNITED STATES AT
THIS TIME AND HAD THROWN HIS LOT IN WITH JAPAN.  YET AT THE END OF THE
WAR HE HAD TAKEN THE OATH OF ALLEGIANCE TO THE UNITED STATES, CLAIMING
HE HAD BEEN A UNITED STATES CITIZEN ALL ALONG.  THE ISSUE OF INTENT TO
BETRAY, LIKE THE CITIZENSHIP ISSUE, WAS PLAINLY ONE FOR THE JURY TO
DECIDE.  WE WOULD HAVE TO REJECT ALL THE EVIDENCE ADVERSE TO PETITIONER
AND ACCEPT AS THE TRUTH HIS PROTESTATIONS WHEN THE SHADOW OF THE
HANGMAN'S NOOSE WAS ON HIM IN ORDER TO SAVE HIM FROM THE FINDING THAT
HE DID HAVE INTENT TO BETRAY.  THAT FINDING OF THE JURY WAS BASED ON
ITS CONCLUSION THAT WHAT HE DID WAS DONE WILLINGLY AND VOLUNTARILY AND
NOT BECAUSE THE DUTY OF HIS OFFICE OR ANY COERCION COMPELLED HIM TO DO
IT.  THE FINDING THAT HE HAD AN UNCOERCED AND VOLUNTARY PURPOSE WAS
AMPLY SUPPORTED BY THE EVIDENCE.  THEREFORE THE SECOND ELEMENT OF THE
CRIME OF TREASON WAS FIRMLY ESTABLISHED. 

OTHER ALLEGED ERRORS ARE PRESSED UPON US.  BUT THEY ARE EITHER
INSUBSTANTIAL OR SO ADEQUATELY DISPOSED OF BY THE COURT OF APPEALS THAT
WE GIVE THEM NO NOTICE, WITH ONE EXCEPTION AND THAT RELATES TO THE
SEVERITY OF THE SENTENCE.  AT THE TIME OF THESE OFFENSES CONGRESS HAD
PROVIDED THAT ONE WHO IS GUILTY OF TREASON "SHALL SUFFER DEATH; OR, AT
THE DISCRETION OF THE COURT, SHALL BE IMPRISONED NOT LESS THAN FIVE
YEARS AND FINED NOT LESS THAN $10,000,  ...  AND EVERY PERSON SO
CONVICTED OF TREASON SHALL, MOREOVER, BE INCAPABLE OF HOLDING ANY
OFFICE UNDER THE UNITED STATES."  (FN10)  THE TRIAL JUDGE IMPOSED THE
DEATH SENTENCE.  THE ARGUMENT IS THAT THAT SENTENCE WAS SO SEVERE AS TO
BE ARBITRARY.  IT WAS, HOWEVER, WITHIN THE STATUTORY LIMITS.  WHETHER A
SENTENCE MAY BE SO SEVERE AND THE OFFENSE SO TRIVIAL THAT AN APPELLATE
COURT SHOULD SET IT ASIDE IS A QUESTION WE NEED NOT REACH.  THE
FLAGRANT AND PERSISTENT ACTS OF PETITIONER GAVE THE TRIAL JUDGE SUCH A
LEEWAY IN REACHING A DECISION ON THE SENTENCE THAT WE WOULD NOT BE
WARRANTED IN INTERFERING.  CF. BLOCKBURGER V. UNITED STATES, 284 U.S.
299, 305.  AFFIRMED. 

FN1  SEE BLAKEMORE, RECOVERY OF JAPANESE NATIONALITY AS CAUSE FOR
EXPATRIATION IN AMERICAN LAW, 43 AM. J. INT'L L. 441, 449. 

FN2  FOR DISCUSSIONS OF THE SUBJECT OF DUAL NATIONALITY, SEE TALBOT
V. JANSEN, 3 DALL.  133, 164-165, 169; INGLIS V. TRUSTEES OF THE
SAILOR'S SNUG HARBOUR, 3 PET. 99, 126, 157, 161; SHANKS V. DUPONT, 3
PET. 242, 247, 249; PERKINS V. ELG, 307 U.S. 325, 329, 339, 344-345;
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 97-98; SAVORGNAN V. UNITED
STATES, 338 U.S. 491, 500; UNITED STATES V. HUSBAND, 6 F.2D 957, 958;
DOS REIS EX REL. CAMARA V. NICOLLS, 161 F.2D 860; ATTORNEY GENERAL V.
RICKETTS, 165 F.2D 193; UYENO V. ACHESON, 96 F. SUPP. 510, 514-515;
TOMASICCHIO V. ACHESON, 98 F. SUPP. 166; KONDO V. ACHESON, 98 F. SUPP.
884, 886-887; HAMAMOTO V. ACHESON, 98 F. SUPP. 904, 905; BOISSONNAS V.
ACHESON, 101 F. SUPP. 138, 147, 151-152; DI GIROLAMO V. ACHESON, 101 F.
SUPP. 380, 382; COUMAS V. SUPERIOR COURT, 31 CAL. 2D 682, 192 P.2D 449;
DOYLE V. RIES, 208 MINN. 321, 293 N.W. 614; LUDLAM V. LUDLAM, 26 N.Y.
356, 376-377; LYNCH V. CLARKE, 1 SANDF.  CH. (N.Y.)  583, 659, 677-679;
STATE EX REL. PHELPS V. JACKSON, 79 VT. 504, 520, 65 A. 657, 661;
BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD, 575-591; FLOURNOY,
DUAL NATIONALITY AND ELECTION, 30 YALE L.J. 545, 693; HACKWORTH, DIGEST
OF INTERNATIONAL LAW, VOL. III, PP. 352-377; HYDE, INTERNATIONAL LAW
(2D ED.), VOL. 2, PP. 1131-1143; MOORE, INTERNATIONAL LAW DIGEST, VOL.
III, PP. 518-551; NIELSEN, SOME VEXATIOUS QUESTIONS RELATING TO
NATIONALITY, 20 COL. L. REV. 840; OPPENHEIM, INTERNATIONAL LAW (7TH
ED., LAUTERPACHT), VOL. I, PP.  606-610; ORFIELD, THE LEGAL EFFECTS OF
DUAL NATIONALITY, 17 GEO. WASH. L. REV. 427; VAN DYNE, CITIZENSHIP OF
THE UNITED STATES, 24, 34. 

FN3  THE EXPLANATORY COMMENTS ON THE DRAFT CODE OF THE NATIONALITY
LAWS TRANSMITTED WITH THE MESSAGE OF THE PRESIDENT ON JUNE 13, 1938,
STATED THE FOLLOWING AS RESPECTS SEC. 401(C) AND (D): 

"WITH REFERENCE TO SUBSECTIONS (C) AND (D) ATTENTION IS CALLED TO THE
FOLLOWING STATEMENT IN AN OPINION OF ATTORNEY GENERAL WILLIAMS, DATED
AUGUST 20, 1873 (14 OP. ATTY. GEN. 295, 297): 

"'MY OPINION  ...  IS THAT, IN ADDITION TO DOMICILE AND INTENT TO
REMAIN, SUCH EXPRESSIONS OR ACTS AS AMOUNT TO A RENUNCIATION OF UNITED
STATES CITIZENSHIP AND A WILLINGNESS TO SUBMIT TO OR ADOPT THE
OBLIGATIONS OF THE COUNTRY IN WHICH THE PERSON RESIDES, SUCH AS
ACCEPTING PUBLIC EMPLOYMENT, ENGAGING IN MILITARY SERVICES, ETC., MAY
BE TREATED BY THIS GOVERNMENT AS EXPATRIATION, WITHOUT ACTUAL
NATURALIZATION.  NATURALIZATION IS WITHOUT DOUBT THE HIGHEST, BUT NOT
THE ONLY EVIDENCE OF EXPATRIATION.'"  CODIFICATION OF THE NATIONALITY
LAWS OF THE UNITED STATES, 76TH CONG., 1ST SESS., HOUSE COMMITTEE
PRINT, P. 67. 

MR. FLOURNOY, SPEAKING FOR THE STATE DEPARTMENT AT THE HEARINGS (SEE
HEARINGS ON H.R. 6127, H.R. 9980, 76TH CONG., 1ST SESS., PP. 131-132),
DESCRIBED THE PROVISION THAT BECAME SEC. 401(D) IN THE FOLLOWING WAY: 

"IT SEEMS TO ME THE OBJECT OF THAT IS FAIRLY CLEAR.  A FOREIGN STATE
HAS SOME POSITION IN ITS GOVERNMENT WHICH CAN BE HELD ONLY BY ITS
CITIZENS AND AN AMERICAN ACCEPTS SUCH A POSITION AND SERVES THE FOREIGN
STATE AND LOSES HIS AMERICAN NATIONALITY.  THAT IS INTENDED
PARTICULARLY FOR CASES OF PERSONS OF DUAL NATIONALITY, AND THERE ARE
NOT A GREAT MANY OF THOSE CASES.  THERE ARE NOT MANY THOUSANDS OF THEM
...  .  THIS IS INTENDED PARTICULARLY FOR THOSE CASES OF DUAL
NATIONALITY.  SAY AN AMERICAN IS BORN HERE AND HE GOES TO AND IS LIVING
IN MEXICO AND HE TAKES A POSITION IN THE MEXICAN GOVERNMENT, THAT IS
REGARDED AS EQUIVALENT TO A CHOICE OF HIS CITIZENSHIP AND HE LOSES HIS
AMERICAN NATIONALITY." 

FN4  SECTION 402 READS AS FOLLOWS: 

"A NATIONAL OF THE UNITED STATES WHO WAS BORN IN THE UNITED STATES OR
WHO WAS BORN IN ANY PLACE OUTSIDE OF THE JURISDICTION OF THE UNITED
STATES OF A PARENT WHO WAS BORN IN THE UNITED STATES, SHALL BE PRESUMED
TO HAVE EXPATRIATED HIMSELF UNDER SUBSECTION (C) OR (D) OF SECTION 401,
WHEN HE SHALL REMAIN FOR SIX MONTHS OR LONGER WITHIN ANY FOREIGN STATE
OF WHICH HE OR EITHER OF HIS PARENTS SHALL HAVE BEEN A NATIONAL
ACCORDING TO THE LAWS OF SUCH FOREIGN STATE, OR WITHIN ANY PLACE UNDER
CONTROL OF SUCH FOREIGN STATE, AND SUCH PRESUMPTION SHALL EXIST UNTIL
OVERCOME WHETHER OR NOT THE INDIVIDUAL HAS RETURNED TO THE UNITED
STATES.  SUCH PRESUMPTION MAY BE OVERCOME ON THE PRESENTATION OF
SATISFACTORY EVIDENCE TO A DIPLOMATIC OR CONSULAR OFFICER OF THE UNITED
STATES, OR TO AN IMMIGRATION OFFICER OF THE UNITED STATES, UNDER SUCH
RULES AND REGULATIONS AS THE DEPARTMENT OF STATE AND THE DEPARTMENT OF
JUSTICE JOINTLY PRESCRIBE.  HOWEVER, NO SUCH PRESUMPTION SHALL ARISE
WITH RESPECT TO ANY OFFICER OR EMPLOYEE OF THE UNITED STATES WHILE
SERVING ABROAD AS SUCH OFFICER OR EMPLOYEE, NOR TO ANY ACCOMPANYING
MEMBER OF HIS FAMILY." 

FN5  SECTION 402 WAS ADOPTED "UPON THE SPECIAL RECOMMENDATION OF THE
WAR DEPARTMENT WITH A VIEW TO CHECKING THE ACTIVITIES OF PERSONS
REGARDED AS PROSPECTIVE 'FIFTH COLUMNISTS.'"  86 CONG. REC. 11948. 

FN6  R.S. SEC. 1999, 8 U.S.C. SEC. 800 PROVIDES: 

"WHEREAS THE RIGHT OF EXPATRIATION IS A NATURAL AND INHERENT RIGHT OF
ALL PEOPLE, INDISPENSABLE TO THE ENJOYMENT OF THE RIGHTS OF LIFE,
LIBERTY, AND THE PURSUIT OF HAPPINESS; AND WHEREAS IN THE RECOGNITION
OF THIS PRINCIPLE THIS GOVERNMENT HAS FREELY RECEIVED EMIGRANTS FROM
ALL NATIONS, AND INVESTED THEM WITH THE RIGHTS OF CITIZENSHIP; AND
WHEREAS IT IS CLAIMED THAT SUCH AMERICAN CITIZENS, WITH THEIR
DESCENDANTS, ARE SUBJECTS OF FOREIGN STATES, OWING ALLEGIANCE TO THE
GOVERNMENTS THEREOF; AND WHEREAS IT IS NECESSARY TO THE MAINTENANCE OF
PUBLIC PEACE THAT THIS CLAIM OF FOREIGN ALLEGIANCE SHOULD BE PROMPTLY
AND FINALLY DISAVOWED:  THEREFORE ANY DECLARATION, INSTRUCTION,
OPINION, ORDER, OR DECISION OF ANY OFFICER OF THE UNITED STATES WHICH
DENIES, RESTRICTS, IMPAIRS, OR QUESTIONS THE RIGHT OF EXPATRIATION, IS
DECLARED INCONSISTENT WITH THE FUNDAMENTAL PRINCIPLES OF THE
REPUBLIC." 

FN7  "WHOEVER, OWING ALLEGIANCE TO THE UNITED STATES, LEVIES WAR
AGAINST THEM OR ADHERES TO THEIR ENEMIES, GIVING THEM AID AND COMFORT
WITHIN THE UNITED STATES OR ELSEWHERE, IS GUILTY OF TREASON AND SHALL
SUFFER DEATH, OR SHALL BE IMPRISONED NOT LESS THAN FIVE YEARS AND FINED
NOT LESS THAN $10,000; AND SHALL BE INCAPABLE OF HOLDING ANY OFFICE
UNDER THE UNITED STATES." 

FN8  ABSTRACT OF PASSPORT LAWS AND PRECEDENTS, PASSPORT DIVISION
OFFICE INSTRUCTIONS, CODE NO. 1.6, MAY 19, 1941. 

FN9  THE FORM OF INTERROGATORY WHICH THE JURY ANSWERED AFFIRMATIVELY
TO EACH OF THE EIGHT OVERT ACTS IS PRINTED IN UNITED STATES V.
KAWAKITA, 96 F. SUPP. 824, 851-852. 

FN10  18 U.S.C. (1946 ED.)  SEC.  2.  FOR THE PRESENT VERSION SEE
NOTE 7, SUPRA. 

MR. JUSTICE FRANKFURTER, NOT HAVING HEARD THE ARGUMENT, OWING TO
ILLNESS, TOOK NO PART IN THE DISPOSITION OF THE CASE. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. CHIEF JUSTICE VINSON, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

THE THRESHOLD QUESTION IN THIS CASE IS WHETHER PETITIONER RENOUNCED
HIS UNITED STATES CITIZENSHIP AND BECAME EXPATRIATED BY REASON OF ACTS
COMMITTED IN JAPAN DURING THE WAR.  PRIOR TO 1943, PETITIONER WAS
REGARDED BY JAPANESE AUTHORITIES AS AN ENEMY ALIEN.  IN MARCH, 1943,
PETITIONER GAVE OFFICIAL NOTICE OF HIS ALLEGIANCE TO JAPAN BY HAVING
HIS NAME REGISTERED IN THE FAMILY KOSEKI.  THEREAFTER, PETITIONER HAD
HIS NAME REMOVED FROM POLICE RECORDS AS AN ENEMY ALIEN, SECURED
EMPLOYMENT SUBJECT TO MILITARY CONTROL AT A MUNITIONS PLANT, TRAVELED
TO CHINA ON A JAPANESE PASSPORT, AND PRAYED DAILY FOR THE EMPEROR'S
HEALTH AND A JAPANESE VICTORY.  THESE FACTS AND PETITIONER'S HEINOUS
TREATMENT OF AMERICAN PRISONERS OF WAR, RECITED IN THE OPINION OF THE
COURT, CONVINCE US THAT PETITIONER, FOR OVER TWO YEARS, WAS
CONSISTENTLY DEMONSTRATING HIS ALLEGIANCE TO JAPAN, NOT THE UNITED
STATES.  AS A MATTER OF LAW, HE EXPATRIATED HIMSELF AS WELL AS THAT CAN
BE DONE. 

PETITIONER'S STATEMENTS THAT HE WAS STILL A CITIZEN OF THE UNITED
STATES - MADE IN ORDER TO OBTAIN A UNITED STATES PASSPORT AFTER JAPAN
HAD LOST THE WAR - CANNOT RESTORE CITIZENSHIP RENOUNCED DURING THE
WAR.  BECAUSE WE CONCLUDE, ON THIS RECORD, THAT PETITIONER'S WHOLE
COURSE OF CONDUCT WAS INCONSISTENT WITH RETENTION OF UNITED STATES
CITIZENSHIP, WE WOULD REVERSE PETITIONER'S CONVICTION OF TREASON
AGAINST THE UNITED STATES. 
..END :










ON LEE V. UNITED STATES 343 U.S. 747 


NO. 543.  ARGUED APRIL 24, 1952 - DECIDED JUNE 2, 1952 - 193 F.2D 306,
AFFIRMED. 


WHILE PETITIONER WAS AT LARGE ON BAIL PENDING HIS TRIAL IN A FEDERAL
COURT ON FEDERAL NARCOTICS CHARGES, AN OLD ACQUAINTANCE AND FORMER
EMPLOYEE, WHO, UNKNOWN TO PETITIONER, WAS A FEDERAL "UNDERCOVER AGENT"
AND HAD A RADIO TRANSMITTER CONCEALED ON HIS PERSON, ENTERED THE
CUSTOMER'S ROOM OF PETITIONER'S LAUNDRY AND ENGAGED PETITIONER IN A
CONVERSATION.  SELF-INCRIMINATING STATEMENTS, MADE BY PETITIONER DURING
THIS CONVERSATION AND A LATER CONVERSATION ON A SIDEWALK WITH THE SAME
"UNDERCOVER AGENT," WERE LISTENED TO ON A RADIO RECEIVER OUTSIDE THE
LAUNDRY BY ANOTHER FEDERAL AGENT, WHO TESTIFIED CONCERNING THEM, OVER
PETITIONER'S OBJECTION, AT THE TRIAL IN WHICH PETITIONER WAS
CONVICTED.  HELD: 

1.  THE CONDUCT OF THE FEDERAL AGENTS DID NOT AMOUNT TO SUCH A SEARCH
AND SEIZURE AS IS PROSCRIBED BY THE FOURTH AMENDMENT.  PP. 750-753. 

(A)  THE UNDERCOVER AGENT COMMITTED NO TRESPASS WHEN HE ENTERED
PETITIONER'S PLACE OF BUSINESS, AND HIS SUBSEQUENT CONDUCT DID NOT
RENDER THE ENTRY A TRESPASS AB INITIO.  PP.  751-753. 

(B)  THE DOCTRINE OF TRESPASS AB INITIO IS APPLICABLE ONLY AS A RULE
OF LIABILITY IN CIVIL ACTIONS, NOT WHERE THE RIGHT OF THE GOVERNMENT TO
MAKE USE OF EVIDENCE IN A CRIMINAL PROSECUTION IS INVOLVED.  P. 752. 

(C)  THE CONTENTIONS THAT THE UNDERCOVER MAN'S ENTRANCE WAS A
TRESPASS BECAUSE CONSENT WAS OBTAINED BY FRAUD, AND THAT THE OTHER
AGENT WAS A TRESPASSER BECAUSE BY MEANS OF THE RADIO RECEIVER OUTSIDE
THE LAUNDRY HE OVERHEARD WHAT WENT ON INSIDE, MUST BE REJECTED.  PP.
752-753. 

(D)  DECISIONS RELATING TO PROBLEMS RAISED WHERE TANGIBLE PROPERTY IS
UNLAWFULLY SEIZED ARE INAPPOSITE IN THE FIELD OF MECHANICAL OR
ELECTRONIC DEVICES DESIGNED TO OVERHEAR OR INTERCEPT CONVERSATION, AT
LEAST WHERE ACCESS TO THE LISTENING POST WAS NOT OBTAINED BY ILLEGAL
METHODS.  P. 753. 

(E)  EVEN IF THE COURT WERE TO OVERTURN ITS RULING THAT WIRETAPPING IS
OUTSIDE THE BAN OF THE FOURTH AMENDMENT, OLMSTEAD V. UNITED STATES, 277
U.S. 438, PETITIONER WOULD NOT BE AIDED, SINCE HIS CASE CANNOT BE
TREATED AS ONE INVOLVING WIRETAPPINGG.  PP. 753-754. 

2.  THE FACTS DO NOT SHOW A VIOLATION OF SEC. 605 OF THE FEDERAL
COMMUNICATIONS ACT, SINCE THERE WAS NO INTERFERENCE WITH ANY
COMMUNICATIONS FACILITY THAT PETITIONER POSSESSED OR WAS ENTITLED TO
USE, NOR WAS PETITIONER SENDING MESSAGES TO ANYONE OR USING A SYSTEM OF
COMMUNICATIONS WITHIN THE ACT.  P. 754. 

3.  THE EVIDENCE SHOULD NOT HAVE BEEN EXCLUDED AS A MEANS OF
DISCIPLINING LAW ENFORCEMENT OFFICERS.  MCNABB V. UNITED STATES, 318
U.S. 332, DISTINGUISHED.  PP. 754-758. 

ON LEE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PETITIONER WAS CONVICTED IN THE DISTRICT COURT OF FEDERAL OFFENSES. 
THE COURT OF APPEALS AFFIRMED.  193 F.2D 306.  THIS COURT GRANTED
CERTIORARI.  342 U.S. 941.  AFFIRMED, P. 758. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED ON A TWO-COUNT INDICTMENT, ONE CHARGING THE
SUBSTANTIVE OFFENSE OF SELLING A POUND OF OPIUM IN VIOLATION OF 21
U.S.C. SECS. 173 AND 174, THE OTHER CONSPIRING TO SELL THE OPIUM IN
VIOLATION OF 18 U.S.C. SEC. 371.  THE COURT OF APPEALS SUSTAINED THE
CONVICTION BY A DIVIDED COURT.  (FN1)  WE GRANTED CERTIORARI.  (FN2) 

THE QUESTIONS RAISED BY PETITIONER HAVE BEEN CONSIDERED BUT ONLY ONE
IS OF ENOUGH GENERAL INTEREST TO MERIT DISCUSSION.  THAT CONCERNS
ADMISSION IN EVIDENCE OF TWO CONVERSATIONS PETITIONER HAD, WHILE AT
LARGE ON BAIL PENDING TRIAL, WITH ONE CHIN POY.  THE CIRCUMSTANCES ARE
THESE: 

PETITIONER, ON LEE, HAD A LAUNDRY IN HOBOKEN.  A CUSTOMERS' ROOM
OPENED ON THE STREET, BACK OF IT WAS A ROOM FOR IRONING TABLES, AND IN
THE REAR WERE HIS LIVING QUARTERS.  CHIN POY, AN OLD ACQUAINTANCE AND
FORMER EMPLOYEE, SAUNTERED IN AND, WHILE CUSTOMERS CAME AND WENT,
ENGAGED THE ACCUSED IN CONVERSATION IN THE COURSE OF WHICH PETITIONER
MADE INCRIMINATING STATEMENTS.  HE DID NOT KNOW THAT CHIN POY WAS WHAT
THE GOVERNMENT CALLS "AN UNDERCOVER AGENT" AND WHAT PETITIONER CALLS A
"STOOL PIGEON" FOR THE BUREAU OF NARCOTICS.  NEITHER DID HE KNOW THAT
CHIN POY WAS WIRED FOR SOUND, WITH A SMALL MICROPHONE IN HIS INSIDE
OVERCOAT POCKET AND A SMALL ANTENNA RUNNING ALONG HIS ARM.  UNBEKNOWNST
TO PETITIONER, AN AGENT OF THE NARCOTICS BUREAU NAMED LAWRENCE LEE HAD
STATIONED HIMSELF OUTSIDE WITH A RECEIVING SET PROPERLY TUNED TO PICK
UP ANY SOUNDS THE CHIN POY MICROPHONE TRANSMITTED.  THROUGH THE LARGE
FRONT WINDOW CHIN POY COULD BE SEEN AND THROUGH THE RECEIVING SET HIS
CONVERSATION, IN CHINESE, WITH PETITIONER COULD BE HEARD BY AGENT LEE. 
A FEW DAYS LATER, ON THE SIDEWALKS OF NEW YORK, ANOTHER CONVERSATION
TOOK PLACE BETWEEN THE TWO, AND DAMAGING ADMISSIONS WERE AGAIN
"AUDITED" BY AGENT LEE. 

FOR REASONS LEFT TO OUR IMAGINATION, CHIN POY WAS NOT CALLED TO
TESTIFY ABOUT PETITIONER'S INCRIMINATING ADMISSIONS.  AGAINST
OBJECTION, (FN3) HOWEVER, AGENT LEE WAS ALLOWED TO RELATE THE
CONVERSATIONS AS HEARD WITH AID OF HIS RECEIVING SET.  OF THIS
TESTIMONY, IT IS ENOUGH TO SAY THAT IT WAS CERTAINLY PREJUDICIAL IF ITS
ADMISSION WAS IMPROPER. 

PETITIONER CONTENDS THAT THIS EVIDENCE SHOULD HAVE BEEN EXCLUDED
BECAUSE THE MANNER IN WHICH IT WAS OBTAINED VIOLATES BOTH THE SEARCH
AND-SEIZURE PROVISIONS OF THE FOURTH AMENDMENT, (FN4) AND SEC. 605 OF
THE FEDERAL COMMUNICATIONS ACT (47 U.S.C. SEC. 605); (FN5) AND, IF NOT
REJECTED ON THOSE GROUNDS, WE SHOULD PRONOUNCE IT INADMISSIBLE ANYWAY
UNDER THE JUDICIAL POWER TO REQUIRE FAIR PLAY IN FEDERAL LAW
ENFORCEMENT. 

THE CONDUCT OF CHIN POY AND AGENT LEE DID NOT AMOUNT TO AN UNLAWFUL
SEARCH AND SEIZURE SUCH AS IS PROSCRIBED BY THE FOURTH AMENDMENT.  IN
GOLDMAN V. UNITED STATES, 316 U.S. 129, WE HELD THAT THE ACTION OF
FEDERAL AGENTS IN PLACING A DETECTAPHONE ON THE OUTER WALL OF
DEFENDANT'S HOTEL ROOM, AND THEREBY OVERHEARING CONVERSATIONS HELD
WITHIN THE ROOM, DID NOT VIOLATE THE FOURTH AMENDMENT.  THERE THE
AGENTS HAD EARLIER COMMITTED A TRESPASS IN ORDER TO INSTALL A LISTENING
DEVICE WITHIN THE ROOM ITSELF.  SINCE THE DEVICE FAILED TO WORK, THE
COURT EXPRESSLY RESERVED DECISION AS TO THE EFFECT ON THE SEARCH-AND
SEIZURE QUESTION OF A TRESPASS IN THAT SITUATION.  PETITIONER IN THE
INSTANT CASE HAS SEIZED UPON THAT DICTUM, APPARENTLY ON THE ASSUMPTION
THAT THE PRESENCE OF A RADIO SET WOULD AUTOMATICALLY BRING HIM WITHIN
THE RESERVATION IF HE CAN SHOW A TRESPASS. 

BUT PETITIONER CANNOT RAISE THE UNDECIDED QUESTION, FOR HERE NO
TRESPASS WAS COMMITTED.  CHIN POY ENTERED A PLACE OF BUSINESS WITH THE
CONSENT, IF NOT BY THE IMPLIED INVITATION, OF THE PETITIONER. 
PETITIONER CONTENDS, HOWEVER, THAT CHIN POY'S SUBSEQUENT "UNLAWFUL
CONDUCT" VITIATED THE CONSENT AND RENDERED HIS ENTRY A TRESPASS AB
INITIO. 

IF WE WERE TO ASSUME THAT CHIN POY'S CONDUCT WAS UNLAWFUL AND
CONSIDER THIS ARGUMENT AS AN ORIGINAL PROPOSITION, IT IS DOUBTFUL THAT
THE NICETIES OF TORT LAW INITIATED ALMOST TWO AND A HALF CENTURIES AGO
BY THE CASE OF THE SIX CARPENTERS, 8 COKE 146(A), CITED BY PETITIONER,
ARE OF MUCH AID IN DETERMINING RIGHTS UNDER THE FOURTH AMENDMENT.  BUT
PETITIONER'S ARGUMENT COMES A QUARTER OF A CENTURY TOO LATE:  THIS
CONTENTION WAS DECIDED ADVERSELY TO HIM IN MCGUIRE V. UNITED STATES,
273 U.S. 95, 98, 100, WHERE MR. JUSTICE STONE, SPEAKING FOR A UNANIMOUS
COURT, SAID OF THE DOCTRINE OF TRESPASS AB INITIO:  "THIS FICTION,
OBVIOUSLY INVOKED IN SUPPORT OF A POLICY OF PENALIZING THE UNAUTHORIZED
ACTS OF THOSE WHO HAD ENTERED UNDER AUTHORITY OF LAW, HAS ONLY BEEN
APPLIED AS A RULE OF LIABILITY IN CIVIL ACTIONS AGAINST THEM.  ITS
EXTENSION IS NOT FAVORED."  HE CONCLUDED THAT THE COURT WOULD NOT
RESORT TO "A FICTION WHOSE ORIGIN, HISTORY, AND PURPOSE DO NOT JUSTIFY
ITS APPLICATION WHERE THE RIGHT OF THE GOVERNMENT TO MAKE USE OF
EVIDENCE IS INVOLVED."  THIS WAS FOLLOWED IN ZAP V. UNITED STATES, 328
U.S. 624, 629. 

BY THE SAME TOKEN, THE CLAIM THAT CHIN POY'S ENTRANCE WAS A TRESPASS
BECAUSE CONSENT TO HIS ENTRY WAS OBTAINED BY FRAUD MUST BE REJECTED. 
WHETHER AN ENTRY SUCH AS THIS, WITHOUT ANY AFFIRMATIVE
MISREPRESENTATION, WOULD BE A TRESPASS UNDER ORTHODOX TORT LAW IS NOT
AT ALL CLEAR.  SEE PROSSER ON TORTS, SEC. 18.  BUT THE RATIONALE OF THE
MCGUIRE CASE REJECTS SUCH FINE-SPUN DOCTRINES FOR EXCLUSION OF
EVIDENCE.  THE FURTHER CONTENTION OF PETITIONER THAT AGENT LEE, OUTSIDE
THE LAUNDRY, WAS A TRESPASSER BECAUSE BY THESE AIDS HE OVERHEARD WHAT
WENT ON INSIDE VERGES ON THE FRIVOLOUS.  ONLY IN THE CASE OF PHYSICAL
ENTRY, EITHER BY FORCE, AS IN MCDONALD V. UNITED STATES, 335 U.S. 451,
BY UNWILLING SUBMISSION TO AUTHORITY, AS IN JOHNSON V. UNITED STATES,
333 U.S. 10, OR WITHOUT ANY EXPRESS OR IMPLIED CONSENT, AS IN NUESLEIN
V. DISTRICT OF COLUMBIA, 73 APP. D.C. 85, 115 F.2D 690, WOULD THE
PROBLEM LEFT UNDECIDED IN THE GOLDMAN CASE BE BEFORE THE COURT. 

PETITIONER RELIES ON CASES RELATING TO THE MORE COMMON AND CLEARLY
DISTINGUISHABLE PROBLEMS RAISED WHERE TANGIBLE PROPERTY IS UNLAWFULLY
SEIZED.  SUCH UNLAWFUL SEIZURE MAY VIOLATE THE FOURTH AMENDMENT, EVEN
THOUGH THE ENTRY ITSELF WAS BY SUBTERFUGE OR FRAUD RATHER THAN FORCE. 
UNITED STATES V. JEFFERS, 342 U.S. 48; GOULED V. UNITED STATES, 255
U.S. 298 (THE AUTHORITY OF THE LATTER CASE IS SHARPLY LIMITED BY
OLMSTEAD V. UNITED STATES, 277 U.S. 438, AT 463).  BUT SUCH DECISIONS
ARE INAPPOSITE IN THE FIELD OF MECHANICAL OR ELECTRONIC DEVICES
DESIGNED TO OVERHEAR OR INTERCEPT CONVERSATION, AT LEAST WHERE ACCESS
TO THE LISTENING POST WAS NOT OBTAINED BY ILLEGAL METHODS. 

PETITIONER URGES THAT IF HIS CLAIM OF UNLAWFUL SEARCH AND SEIZURE
CANNOT BE SUSTAINED ON AUTHORITY, WE RECONSIDER THE QUESTION OF FOURTH
AMENDMENT RIGHTS IN THE FIELD OF OVERHEARD OR INTERCEPTED
CONVERSATIONS.  THIS APPARENTLY IS UPON THE THEORY THAT SINCE THERE WAS
A RADIO SET INVOLVED, HE COULD SUCCEED IF HE COULD PERSUADE THE COURT
TO OVERTURN THE LEADING CASE HOLDING WIRETAPPING TO BE OUTSIDE THE BAN
OF THE FOURTH AMENDMENT, OLMSTEAD V. UNITED STATES, 277 U.S. 438, AND
THE CASES WHICH HAVE FOLLOWED IT.  WE NEED NOT CONSIDER THIS, HOWEVER,
FOR SUCCESS IN THIS ATTEMPT, WHICH FAILED IN GOLDMAN V. UNITED STATES,
316 U.S. 129, WOULD BE OF NO AID TO PETITIONER UNLESS HE CAN SHOW THAT
HIS SITUATION SHOULD BE TREATED AS WIRETAPPING.  THE PRESENCE OF A
RADIO SET IS NOT SUFFICIENT TO SUGGEST MORE THAN THE MOST ATTENUATED
ANALOGY TO WIRETAPPING.  PETITIONER WAS TALKING CONFIDENTIALLY AND
INDISCREETLY WITH ONE HE TRUSTED, AND HE WAS OVERHEARD.  THIS WAS DUE
TO AID FROM A TRANSMITTER AND RECEIVER, TO BE SURE, BUT WITH THE SAME
EFFECT ON HIS PRIVACY AS IF AGENT LEE HAD BEEN EAVESDROPPING OUTSIDE AN
OPEN WINDOW.  THE USE OF BIFOCALS, FIELD GLASSES OR THE TELESCOPE TO
MAGNIFY THE OBJECT OF A WITNESS' VISION IS NOT A FORBIDDEN SEARCH OR
SEIZURE, EVEN IF THEY FOCUS WITHOUT HIS KNOWLEDGE OR CONSENT UPON WHAT
ONE SUPPOSES TO BE PRIVATE INDISCRETIONS.  IT WOULD BE A DUBIOUS
SERVICE TO THE GENUINE LIBERTIES PROTECTED BY THE FOURTH AMENDMENT TO
MAKE THEM BEDFELLOWS WITH SPURIOUS LIBERTIES IMPROVISED BY FARFETCHED
ANALOGIES WHICH WOULD LIKEN EAVESDROPPING ON A CONVERSATION, WITH THE
CONNIVANCE OF ONE OF THE PARTIES, TO AN UNREASONABLE SEARCH OR
SEIZURE.  WE FIND NO VIOLATION OF THE FOURTH AMENDMENT HERE. 

NOR DO THE FACTS SHOW A VIOLATION OF SEC. 605 OF THE FEDERAL
COMMUNICATIONS ACT.  PETITIONER HAD NO WIRES AND NO WIRELESS.  THERE
WAS NO INTERFERENCE WITH ANY COMMUNICATIONS FACILITY WHICH HE POSSESSED
OR WAS ENTITLED TO USE.  HE WAS NOT SENDING MESSAGES TO ANYBODY OR
USING A SYSTEM OF COMMUNICATIONS WITHIN THE ACT.  GOLDSTEIN V. UNITED
STATES, 316 U.S. 114. 

FINALLY, PETITIONER CONTENDS THAT EVEN THOUGH HE BE OVERRULED IN ALL
ELSE, THE EVIDENCE SHOULD BE EXCLUDED AS A MEANS OF DISCIPLINING LAW
ENFORCEMENT OFFICERS.  CF. MCNABB V. UNITED STATES, 318 U.S. 332.  IN
MCNABB, HOWEVER, WE HELD THAT, WHERE DEFENDANTS HAD BEEN UNLAWFULLY
DETAINED IN VIOLATION OF THE FEDERAL STATUTE REQUIRING PROMPT
ARRAIGNMENT BEFORE A COMMISSIONER, A CONFESSION MADE DURING THE
DETENTION WOULD BE EXCLUDED AS EVIDENCE IN FEDERAL COURTS EVEN THOUGH
NOT INADMISSIBLE ON THE GROUND OF ANY OTHERWISE INVOLUNTARY CHARACTER. 
BUT HERE NEITHER AGENT NOR INFORMER VIOLATED ANY FEDERAL LAW; AND
VIOLATION OF STATE LAW, EVEN HAD IT BEEN SHOWN HERE, AS IT WAS NOT,
WOULD NOT RENDER THE EVIDENCE OBTAINED INADMISSIBLE IN FEDERAL COURTS. 
OLMSTEAD V. UNITED STATES, 277 U.S. 438, AT 468. 

IN ORDER THAT CONSTITUTIONAL OR STATUTORY RIGHTS MAY NOT BE
UNDERMINED, THIS COURT HAS ON OCCASION EVOLVED OR ADOPTED FROM THE
PRACTICE OF OTHER COURTS EXCLUSIONARY RULES OF EVIDENCE GOING BEYOND
THE REQUIREMENTS OF THE CONSTITUTIONAL OR STATUTORY PROVISION.  MCNABB
V. UNITED STATES, SUPRA; WEEKS V. UNITED STATES, 232 U.S. 383.  IN SO
DOING, IT HAS, OF COURSE, DEPARTED FROM THE COMMON-LAW RULE UNDER WHICH
OTHERWISE ADMISSIBLE EVIDENCE WAS NOT RENDERED INADMISSIBLE BY THE FACT
THAT IT HAD BEEN ILLEGALLY OBTAINED.  SUCH DEPARTURES FROM THE PRIMARY
EVIDENTIARY CRITERIA OF RELEVANCY AND TRUSTWORTHINESS MUST BE JUSTIFIED
BY SOME STRONG SOCIAL POLICY.  IN DISCUSSING THE EXTENSION OF SUCH
RULES, AND THE CREATION OF NEW ONES, IT IS WELL TO REMEMBER THE REMARKS
OF MR. JUSTICE STONE IN MCGUIRE V. UNITED STATES, 273 U.S. 95, AT 99:
"A CRIMINAL PROSECUTION IS MORE THAN A GAME IN WHICH THE GOVERNMENT MAY
BE CHECKMATED AND THE GAME LOST MERELY BECAUSE ITS OFFICERS HAVE NOT
PLAYED ACCORDING TO RULE." 

RULES OF EVIDENCE, EXCEPT WHERE PRESCRIBED BY STATUTE, ARE FORMULATED
BY THE COURTS TO SOME EXTENT, AS "A QUESTION OF SOUND POLICY IN THE
ADMINISTRATION OF THE LAW."  ZUCKER V. WHITRIDGE, 205 N.Y. 50, 65, 98
N.E. 209, 213.  COURTS WHICH DEAL WITH QUESTIONS OF EVIDENCE MORE
FREQUENTLY THAN WE DO HAVE FOUND IT UNWISE TO MULTIPLY OCCASIONS WHEN
THE ATTENTION OF A TRIAL COURT IN A CRIMINAL CASE MUST BE DIVERTED FROM
THE ISSUE OF THE DEFENDANT'S GUILT TO THE ISSUE OF SOMEONE ELSE'S
MISCONDUCT IN OBTAINING EVIDENCE.  THEY HAVE CONSIDERED THAT "THE
UNDERLYING PRINCIPLE OBVIOUSLY IS THAT THE COURT, WHEN ENGAGED IN
TRYING A CRIMINAL CAUSE, WILL NOT TAKE NOTICE OF THE MANNER IN WHICH
WITNESSES HAVE POSSESSED THEMSELVES OF PAPERS, OR OTHER ARTICLES OF
PERSONAL PROPERTY, WHICH ARE MATERIAL AND PROPERLY OFFERED IN
EVIDENCE."  PEOPLE V. ADAMS, 176 N.Y. 351, 358, 68 N.E. 636, 638. 
HOWEVER, THERE IS A PROCEDURE IN FEDERAL COURT BY WHICH DEFENDANT MAY
PROTECT HIS RIGHT IN ADVANCE OF TRIAL TO HAVE RETURNED TO HIM EVIDENCE
UNCONSTITUTIONALLY OBTAINED.  SILVERTHORNE LUMBER CO. V. UNITED STATES,
251 U.S. 385.  BUT SINCE WE HOLD HERE THAT THERE WAS NO VIOLATION OF
THE CONSTITUTION, SUCH A REMEDY COULD NOT BE INVOKED.  EXCLUSION WOULD
HAVE TO BE BASED ON A POLICY WHICH PLACED THE PENALIZING OF CHIN POY'S
BREACH OF CONFIDENCE ABOVE ORDINARY CANONS OF RELEVANCY.  FOR ON LEE'S
STATEMENTS TO CHIN POY WERE ADMISSIONS AGAINST INTEREST PROVABLE
AGAINST HIM AS AN EXCEPTION TO THE HEARSAY RULE.  THE NORMAL MANNER OF
PROOF WOULD BE TO CALL CHIN POY AND HAVE HIM RELATE THE CONVERSATION. 
WE CAN ONLY SPECULATE ON THE REASONS WHY CHIN POY WAS NOT CALLED.  IT
SEEMS A NOT UNLIKELY ASSUMPTION THAT THE VERY DEFECTS OF CHARACTER AND
BLEMISHES OF RECORD WHICH MADE ON LEE TRUST HIM WITH CONFIDENCES WOULD
MAKE A JURY DISTRUST HIS TESTIMONY.  CHIN POY WAS CLOSE ENOUGH TO THE
UNDERWORLD TO SERVE AS BAIT, NEAR ENOUGH THE CRIMINAL DESIGN SO THAT
PETITIONER WOULD EMBRACE HIM AS A CONFIDANTE, BUT TOO CLOSE TO IT FOR
THE GOVERNMENT TO VOUCH FOR HIM AS A WITNESS.  INSTEAD THE GOVERNMENT
CALLED AGENT LEE.  WE SHOULD THINK A JURY PROBABLY WOULD FIND THE
TESTIMONY OF AGENT LEE TO HAVE MORE PROBATIVE VALUE THAN THE WORD OF
CHIN POY. 

SOCIETY CAN ILL AFFORD TO THROW AWAY THE EVIDENCE PRODUCED BY THE
FALLING OUT, JEALOUSIES, AND QUARRELS OF THOSE WHO LIVE BY OUTWITTING
THE LAW.  CERTAINLY NO ONE WOULD FORECLOSE THE TURNING OF STATE'S
EVIDENCE BY DENIZENS OF THE UNDERWORLD.  NO GOOD REASON OF PUBLIC
POLICY OCCURS TO US WHY THE GOVERNMENT SHOULD BE DEPRIVED OF THE
BENEFIT OF ON LEE'S ADMISSIONS BECAUSE HE MADE THEM TO A CONFIDANTE OF
SHADY CHARACTER.    THE TREND OF THE LAW IN RECENT YEARS HAS BEEN TO
TURN AWAY FROM RIGID RULES OF INCOMPETENCE, IN FAVOR OF ADMITTING
TESTIMONY AND ALLOWING THE TRIER OF FACT TO JUDGE THE WEIGHT TO BE
GIVEN IT.  AS THIS COURT HAS POINTED OUT:  "'INDEED, THE THEORY OF THE
COMMON LAW WAS TO ADMIT TO THE WITNESS STAND ONLY THOSE PRESUMABLY
HONEST, APPRECIATING THE SANCTITY OF AN OATH, UNAFFECTED AS A PARTY BY
THE RESULT, AND FREE FROM ANY OF THE TEMPTATIONS OF INTEREST.  THE
COURTS WERE AFRAID TO TRUST THE INTELLIGENCE OF JURORS.  BUT THE LAST
FIFTY YEARS HAVE WROUGHT A GREAT CHANGE IN THESE RESPECTS, AND TO-DAY
THE TENDENCY IS TO ENLARGE THE DOMAIN OF COMPETENCY AND TO SUBMIT TO
THE JURY FOR THEIR CONSIDERATION AS TO THE CREDIBILITY OF THE WITNESS
THOSE MATTERS WHICH HERETOFORE WERE RULED SUFFICIENT TO JUSTIFY HIS
EXCLUSION.  THIS CHANGE HAS BEEN WROUGHT PARTIALLY BY LEGISLATION AND
PARTIALLY BY JUDICIAL CONSTRUCTION.'"  FUNK V. UNITED STATES, 290 U.S.
371, 376. 

THE USE OF INFORMERS, ACCESSORIES, ACCOMPLICES, FALSE FRIENDS, OR ANY
OF THE OTHER BETRAYALS WHICH ARE "DIRTY BUSINESS" MAY RAISE SERIOUS
QUESTIONS OF CREDIBILITY.  TO THE EXTENT THAT THEY DO, A DEFENDANT IS
ENTITLED TO BROAD LATITUDE TO PROBE CREDIBILITY BY CROSS-EXAMINATION
AND TO HAVE THE ISSUES SUBMITTED TO THE JURY WITH CAREFUL
INSTRUCTIONS.  BUT TO THE EXTENT THAT THE ARGUMENT FOR EXCLUSION
DEPARTS FROM SUCH ORTHODOX EVIDENTIARY CANONS AS RELEVANCY AND
CREDIBILITY, IT RESTS SOLELY ON THE PROPOSITION THAT THE GOVERNMENT
SHALL BE ARBITRARILY PENALIZED FOR THE LOW MORALS OF ITS INFORMERS. 
HOWEVER UNWILLING WE AS INDIVIDUALS MAY BE TO APPROVE CONDUCT SUCH AS
THAT OF CHIN POY, SUCH DISAPPROVAL MUST NOT BE THOUGHT TO JUSTIFY A
SOCIAL POLICY OF THE MAGNITUDE NECESSARY TO ARBITRARILY EXCLUDE
OTHERWISE RELEVANT EVIDENCE.  WE THINK THE ADMINISTRATION OF JUSTICE IS
BETTER SERVED IF STRATAGEMS SUCH AS WE HAVE HERE ARE REGARDED AS
RAISING, NOT QUESTIONS OF LAW, BUT ISSUES OF CREDIBILITY.  WE CANNOT
SAY THAT TESTIMONY SUCH AS THIS, AS A MATTER OF LAW, BE REFUSED ALL
HEARING.  JUDGMENT AFFIRMED. 

FN1  193 F.2D 306. 

FN2  342 U.S. 941. 

FN3  IT SEEMS PROBABLE THAT PETITIONER FAILED TO PROPERLY OBJECT TO
AGENT LEE'S TESTIMONY.  SHORTLY AFTER AGENT LEE BEGAN TO TESTIFY,
PETITIONER'S COUNSEL ADDRESSED THE COURT:  "  ...  I WOULD LIKE TO
ENTER A GENERAL OBJECTION TO TESTIMONY BY THIS WITNESS OF CONVERSATIONS
ALLEGED TO HAVE BEEN HAD BETWEEN AGENT GIM AND GONG NOT IN THE HEARING
OF THE DEFENDANT ON TRIAL OR IN HIS PRESENCE."  THIS OBJECTION IS NOT
EVEN ADDRESSED TO THE TESTIMONY DESCRIBING THE CONVERSATION BETWEEN ON
LEE AND CHIN POY.  LATER, WHEN AGENT LEE STARTED TO DESCRIBE THE
CONVERSATION BETWEEN ON LEE AND CHIN POY, PETITIONER'S COUNSEL SAID,
"THAT IS OBJECTED TO."  AT BEST THIS IS A GENERAL OBJECTION WHICH IS
INSUFFICIENT TO PRESERVE SUCH A SPECIFIC CLAIM AS VIOLATION OF A
CONSTITUTIONAL PROVISION IN OBTAINING THE EVIDENCE.  WIGMORE ON
EVIDENCE, SEC. 18(C)(1).  SOME JURISDICTIONS RECOGNIZE AN EXCEPTION TO
THE RULE THAT AN OVERRULED GENERAL OBJECTION CANNOT AVAIL PROPONENT ON
APPEAL IN THE CASE WHERE IT APPEARS ON THE FACE OF THE EVIDENCE THAT IT
IS ADMISSIBLE FOR NO PURPOSE WHATEVER, OR WHERE THE NATURE OF THE
PRECISE SPECIFIC OBJECTION WHICH COULD BE MADE IS READILY DISCERNIBLE. 
SPARKS V. TERRITORY OF OKLAHOMA, 146 F. 371.  BUT THIS EXCEPTION IS
GENERALLY CONFINED TO THE CASES WHERE SUCH EVIDENCE WAS PLAINLY
IRRELEVANT.  WHERE, AS IN THIS CASE, THE OBJECTION RELIES ON COLLATERAL
MATTER TO SHOW INADMISSIBILITY, AND IN ADDITION THE EXCLUSIONARY RULE
TO BE RELIED ON INVOLVES INTERPRETATION OF THE CONSTITUTION, THE
ORTHODOX RULE OF EVIDENCE REQUIRING SPECIFICATION OF THE OBJECTION IS
BUTTRESSED BY THE UNIFORM POLICY REQUIRING CONSTITUTIONAL QUESTIONS TO
BE RAISED AT THE EARLIEST POSSIBLE STAGE IN THE LITIGATION. 

TO CALL THE OBJECTION A GENERAL ONE IS TO PUT IT IN THE LIGHT MOST
FAVORABLE TO PETITIONER; LATER COLLOQUY BETWEEN COUNSEL AND COURT
INDICATES THAT THE INTENDED GROUND OF THAT OBJECTION WAS IRRELEVANCE. 
THERE WERE IN ADDITION MOTIONS TO DISMISS THE INDICTMENT ON EACH COUNT,
AND TO EXCLUDE CERTAIN OTHER TESTIMONY, BUT NO REFERENCE TO THE
TESTIMONY HERE IN QUESTION AT THE MOTION STAGE.  THERE WAS NO MOTION
FOR A NEW TRIAL, BUT THERE WAS A MOTION TO SET ASIDE THE VERDICT - BUT
STILL NO MENTION OF THE SEARCH-AND-SEIZURE ARGUMENT FOR EXCLUSION. 
THERE IS NOT EVEN ANY MENTION OF IT IN THE STATEMENT OF POINTS TO BE
RELIED ON IN THE COURT OF APPEALS.  THE COURT OF APPEALS, HOWEVER, DOES
TREAT IT FULLY, PRESUMABLY UNDER RULE 52(B) OF THE RULES OF CRIMINAL
PROCEDURE, ALLOWING THE APPELLATE COURT TO NOTICE "PLAIN ERROR." 
THOUGH WE THINK THE COURT OF APPEALS WOULD HAVE BEEN WITHIN ITS
DISCRETION IN REFUSING TO CONSIDER THE POINT, THERE HAVING PASSED ON IT
LEADS US TO TREAT THE MERITS ALSO. 

FN4  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED."  U.S. CONST.,
AMEND. IV. 

FN5  "  ...  NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL
INTERCEPT ANY COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE,
CONTENTS, SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED
COMMUNICATION TO ANY PERSON  ...  ." 

MR. JUSTICE BLACK BELIEVES THAT IN EXERCISING ITS SUPERVISORY
AUTHORITY OVER CRIMINAL JUSTICE IN THE FEDERAL COURTS (SEE MCNABB V.
UNITED STATES, 318 U.S. 332, 341) THIS COURT SHOULD HOLD THAT THE
DISTRICT COURT SHOULD HAVE REJECTED THE EVIDENCE HERE CHALLENGED. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE LAW OF THIS COURT OUGHT NOT TO BE OPEN TO THE JUST CHARGE OF
HAVING BEEN DICTATED BY THE "ODIOUS DOCTRINE," AS MR. JUSTICE BRANDEIS
CALLED IT, THAT THE END JUSTIFIES REPREHENSIBLE MEANS.  TO APPROVE
LEGALLY WHAT WE DISAPPROVE MORALLY, ON THE GROUND OF PRACTICAL
CONVENIENCE, IS TO YIELD TO A SHORT-SIGHTED VIEW OF PRACTICALITY.  IT
DERIVES FROM A PREOCCUPATION WITH WHAT IS EPISODIC AND A DISREGARD OF
LONG-RUN CONSEQUENCES.  THE METHOD BY WHICH THE STATE CHIEFLY EXERTS AN
INFLUENCE UPON THE CONDUCT OF ITS CITIZENS, IT WAS WISELY SAID BY
ARCHBISHOP WILLIAM TEMPLE, IS "THE MORAL QUALITIES WHICH IT EXHIBITS IN
ITS OWN CONDUCT." 

LOOSE TALK ABOUT WAR AGAINST CRIME TOO EASILY INFUSES THE
ADMINISTRATION OF JUSTICE WITH THE PSYCHOLOGY AND MORALS OF WAR.  IT IS
HARDLY CONDUCIVE TO THE SOUNDEST EMPLOYMENT OF THE JUDICIAL PROCESS. 
NOR ARE THE NEEDS OF AN EFFECTIVE PENAL CODE SEEN IN THE TRUEST
PERSPECTIVE BY TALK ABOUT A CRIMINAL PROSECUTION'S NOT BEING A GAME IN
WHICH THE GOVERNMENT LOSES BECAUSE ITS OFFICERS HAVE NOT PLAYED
ACCORDING TO RULE.  OF COURSE CRIMINAL PROSECUTION IS MORE THAN A
GAME.  BUT IN ANY EVENT IT SHOULD NOT BE DEEMED TO BE A DIRTY GAME IN
WHICH "THE DIRTY BUSINESS" OF CRIMINALS IS OUTWITTED BY "THE DIRTY
BUSINESS" OF LAW OFFICERS.  THE CONTRAST BETWEEN MORALITY PROFESSED BY
SOCIETY AND IMMORALITY PRACTICED ON ITS BEHALF MAKES FOR CONTEMPT OF
LAW.  RESPECT FOR LAW CANNOT BE TURNED OFF AND ON AS THOUGH IT WERE A
HOT-WATER FAUCET. 

IT IS A QUARTER CENTURY SINCE THIS COURT, BY THE NARROWEST MARGIN,
REFUSED TO PUT WIRETAPPING BEYOND THE CONSTITUTIONAL PALE WHERE A FAIR
CONSTRUCTION OF THE FOURTH AMENDMENT SHOULD PROPERLY PLACE IT.  SINCE
THEN, INSTEAD OF GOING FROM STRENGTH TO STRENGTH IN COMBATTING CRIME,
WE HAVE GONE FROM INEFFICIENCY TO INEFFICIENCY, FROM CORRUPTION TO
CORRUPTION.  THE MORAL INSIGHT OF MR. JUSTICE BRANDEIS UNERRINGLY
FORESAW THIS INEVITABILITY.  "THE PROGRESS OF SCIENCE IN FURNISHING THE
GOVERNMENT WITH MEANS OF ESPIONAGE IS NOT LIKELY TO STOP WITH WIRE
TAPPING.  WAYS MAY SOME DAY BE DEVELOPED BY WHICH THE GOVERNMENT,
WITHOUT REMOVING PAPERS FROM SECRET DRAWERS, CAN REPRODUCE THEM IN
COURT, AND BY WHICH IT WILL BE ENABLED TO EXPOSE TO A JURY THE MOST
INTIMATE OCCURRENCES OF THE HOME.  ADVANCES IN THE PSYCHIC AND RELATED
SCIENCES MAY BRING MEANS OF EXPLORING UNEXPRESSED BELIEFS, THOUGHTS AND
EMOTIONS."  OLMSTEAD V. UNITED STATES, 277 U.S. 438, 471, 474.  THE
CIRCUMSTANCES OF THE PRESENT CASE SHOW HOW THE RAPID ADVANCES OF
SCIENCE ARE MADE AVAILABLE FOR THAT POLICE INTRUSION INTO OUR PRIVATE
LIVES AGAINST WHICH THE FOURTH AMENDMENT OF THE CONSTITUTION WAS SET ON
GUARD. 

IT IS NOTEWORTHY THAT, ALTHOUGH THIS COURT DEEMED WIRETAPPING NOT
OUTLAWED BY THE CONSTITUTION, CONGRESS OUTLAWED IT LEGISLATIVELY BY THE
COMMUNICATIONS ACT OF 1934, 48 STAT. 1064, 1103, 47 U.S.C. SEC. 605;
NARDONE V. UNITED STATES, 302 U.S. 379; 308 U.S. 338.  WHAT IS PERHAPS
EVEN MORE NOTEWORTHY IS ITS PERVASIVE DISREGARD IN PRACTICE BY THOSE
WHO AS LAW OFFICERS OWE SPECIAL OBEDIENCE TO LAW.  WHAT IS TRUE OF THE
FEDERAL ACT AGAINST WIRETAPPING AND ITS VIOLATIONS IS WIDELY TRUE OF
RELATED STATE LEGISLATION AND ITS DISOBEDIENCE.  SEE WESTIN, THE WIRE
TAPPING PROBLEM, 52 COL. L. REV. 165 (1952).  FEW SOCIOLOGICAL
GENERALIZATIONS ARE MORE VALID THAN THAT LAWLESSNESS BEGETS
LAWLESSNESS. 

THE MEMBERS OF THIS COURT WHO SO VIGOROUSLY URGED THAT WIRETAPPING IS
WITHIN THE CLEAR SCOPE OF THE PROHIBITION OF THE FOURTH AMENDMENT WERE
NO SENTIMENTALISTS ABOUT CRIME OR CRIMINALS.  MR. JUSTICE HOLMES, MR.
JUSTICE BRANDEIS, MR. JUSTICE BUTLER AND MR. CHIEF JUSTICE STONE WERE
NO SOFTIES.  IN ALL MATTERS OF SOCIAL POLICY WE HAVE TO CHOOSE, AND IT
WAS THE HARDY PHILOSOPHY OF LIFE THAT HIS YEARS IN THE ARMY OF THE
POTOMAC TAUGHT HIM THAT LED MR. JUSTICE HOLMES TO DEEM IT "A LESS EVIL
THAT SOME CRIMINALS SHOULD ESCAPE THAN THAT THE GOVERNMENT SHOULD PLAY
AN IGNOBLE PART."  OLMSTEAD V. UNITED STATES, SUPRA, AT 470. 

SUPPOSE IT BE TRUE THAT THROUGH "DIRTY BUSINESS" IT IS EASIER FOR
PROSECUTORS AND POLICE TO BRING AN OCCASIONAL CRIMINAL TO HEEL.  IT IS
MOST UNCRITICAL TO ASSUME THAT UNLESS THE GOVERNMENT IS ALLOWED TO
PRACTICE "DIRTY BUSINESS" CRIME WOULD BECOME RAMPANT OR WOULD GO
UNPUNISHED. 

IN THE FIRST PLACE, THE SOCIAL PHENOMENA OF CRIME ARE IMBEDDED IN THE
TEXTURE OF OUR SOCIETY.  EQUALLY DEEPSEATED ARE THE CAUSES OF ALL THAT
IS SORDID AND INEFFECTIVE IN THE ADMINISTRATION OF OUR CRIMINAL LAW. 
THESE ARE OUTCROPPINGS, CERTAINLY IN CONSIDERABLE PART, OF MODERN
INDUSTRIALISM OF THE PREVALENT STANDARDS OF THE COMMUNITY, RELATED TO
THE INADEQUACY IN OUR DAY OF EARLY AMERICAN METHODS AND MACHINERY FOR
LAW ENFORCEMENT AND TO THE SMALL PURSUIT OF SCIENTIFIC INQUIRY INTO THE
CAUSES AND TREATMENT OF CRIME. 

OF COURSE WE CANNOT WAIT ON THE SLOW PROGRESS OF THE SOCIOLOGICAL
SCIENCES IN ILLUMINATING SO MUCH THAT IS STILL DARK.  NOR SHOULD WE
RELAX FOR A MOMENT VIGOROUS ENFORCEMENT OF THE CRIMINAL LAW UNTIL
SOCIETY, BY ITS ADVANCED CIVILIZED NATURE, WILL BEGET AN ATMOSPHERE AND
ENVIRONMENT IN WHICH CRIME WILL SHRINK TO RELATIVE INSIGNIFICANCE.  MY
DEEPEST FEELING AGAINST GIVING LEGAL SANCTION TO SUCH "DIRTY BUSINESS"
AS THE RECORD IN THIS CASE DISCLOSES IS THAT IT MAKES FOR LAZY AND NOT
ALERT LAW ENFORCEMENT.  IT PUTS A PREMIUM ON FORCE AND FRAUD, NOT ON
IMAGINATION AND ENTERPRISE AND PROFESSIONAL TRAINING.  THE THIRD
DEGREE, SEARCH WITHOUT WARRANT, WIRETAPPING AND THE LIKE, WERE NOT
TOLERATED IN WHAT WAS PROBABLY THE MOST SUCCESSFUL ADMINISTRATION IN
OUR TIME OF THE BUSIEST UNITED STATES ATTORNEY'S OFFICE.  THIS
EXPERIENCE UNDER HENRY L. STIMSON IN THE SOUTHERN DISTRICT OF NEW YORK,
COMPARED WITH HAPPENINGS ELSEWHERE, DOUBTLESS PLANTED IN ME A DEEP
CONVICTION THAT THESE SHORT-CUTS IN THE DETECTION AND PROSECUTION OF
CRIME ARE AS SELF-DEFEATING AS THEY ARE IMMORAL. 

SIR JAMES FITZJAMES STEPHEN BRINGS SIGNIFICANT TESTIMONY ON THIS
POINT: 

"DURING THE DISCUSSIONS WHICH TOOK PLACE ON THE INDIAN CODE OF
CRIMINAL PROCEDURE IN 1872 SOME OBSERVATIONS WERE MADE ON THE REASONS
WHICH OCCASIONALLY LEAD NATIVE POLICE OFFICERS TO APPLY TORTURE TO
PRISONERS.  AN EXPERIENCED CIVIL OFFICER OBSERVED, 'THERE IS A GREAT
DEAL OF LAZINESS IN IT.  IT IS FAR PLEASANTER TO SIT COMFORTABLY IN THE
SHADE RUBBING RED PEPPER INTO A POOR DEVIL'S EYES THAN TO GO ABOUT IN
THE SUN HUNTING UP EVIDENCE.'  THIS WAS A NEW VIEW TO ME, BUT I HAVE NO
DOUBT OF ITS TRUTH."  1 STEPHEN, A HISTORY OF THE CRIMINAL LAW OF
ENGLAND (1883), 442, NOTE.  COMPARE SECS. 25 AND 26 OF THE INDIAN
EVIDENCE ACT (1872). 

AND FITZJAMES STEPHEN, WHO ACTED ON THIS EXPERIENCE IN DRAWING THE
INDIAN EVIDENCE ACT, WAS NO SOFTIE, EITHER BEFORE HE BECAME A JUDGE OR
ON THE BENCH. 

ACCORDINGLY I ADHERE TO THE VIEWS EXPRESSED IN GOLDMAN V. UNITED
STATES, 316 U.S. 129, 136, THAT THE OLMSTEAD CASE SHOULD BE OVERRULED
FOR THE REASONS SET FORTH IN THE DISSENTING OPINIONS IN THAT CASE. 
THESE VIEWS HAVE BEEN STRONGLY UNDERLINED BY THE STEADY INCREASE OF
LAWLESSNESS ON THE PART OF LAW OFFICERS, EVEN AFTER CONGRESS HAS
FORBIDDEN WHAT THE DISSENTERS IN OLMSTEAD FOUND THE CONSTITUTION TO
FORBID. 

EVEN ON THE BASIS OF THE PRIOR DECISIONS OF THIS COURT, HOWEVER, I
FEEL BOUND TO DISSENT.  THE COURT SEEMS NOT CONTENT WITH CALLING A HALT
AT THE PLACE IT HAD REACHED ON WHAT I DEEM TO BE THE WRONG ROAD.  AS MY
BROTHER BURTON SHOWS, THE COURT NOW PUSHES BEYOND THE LINES OF LEGALITY
HERETOFORE DRAWN.  SUCH ENCOURAGEMENT TO LAZY, IMMORAL CONDUCT BY THE
POLICE DOES NOT BODE WELL FOR EFFECTIVE LAW ENFORCEMENT.  NOR WILL
CRIME BE CHECKED BY SUCH MEANS. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE COURT HELD IN OLMSTEAD V. UNITED STATES, 277 U.S. 438, OVER
POWERFUL DISSENTS BY MR. JUSTICE HOLMES, MR. JUSTICE BRANDEIS, MR.
JUSTICE BUTLER, AND CHIEF JUSTICE STONE THAT WIRE TAPPING BY FEDERAL
OFFICIALS WAS NOT A VIOLATION OF THE FOURTH AND FIFTH AMENDMENTS. 
SINCE THAT TIME THE ISSUE HAS BEEN CONSTANTLY STIRRED BY THOSE DISSENTS
AND BY AN INCREASING USE OF WIRE TAPPING BY THE POLICE.  FOURTEEN YEARS
LATER IN GOLDMAN V. UNITED STATES, 316 U.S. 129, THE ISSUE WAS AGAIN
PRESENTED TO THE COURT.  I JOINED IN AN OPINION OF THE COURT WRITTEN BY
MR. JUSTICE ROBERTS, WHICH ADHERED TO THE OLMSTEAD CASE, REFUSING TO
OVERRULE IT.  SINCE THAT TIME VARIOUS ASPECTS OF THE PROBLEM HAVE
APPEARED AGAIN AND AGAIN IN THE CASES COMING BEFORE US.  I NOW MORE
FULLY APPRECIATE THE VICE OF THE PRACTICES SPAWNED BY OLMSTEAD AND
GOLDMAN.  REFLECTION ON THEM HAS BROUGHT NEW INSIGHT TO ME.  I NOW FEEL
THAT I WAS WRONG IN THE GOLDMAN CASE.  MR. JUSTICE BRANDEIS IN HIS
DISSENT IN OLMSTEAD ESPOUSED THE CAUSE OF PRIVACY - THE RIGHT TO BE LET
ALONE.  WHAT HE WROTE IS AN HISTORIC STATEMENT OF THAT POINT OF VIEW. 
I CANNOT IMPROVE ON IT. 

"WHEN THE FOURTH AND FIFTH AMENDMENTS WERE ADOPTED, 'THE FORM THAT
EVIL HAD HERETOFORE TAKEN,' HAD BEEN NECESSARILY SIMPLE.  FORCE AND
VIOLENCE WERE THEN THE ONLY MEANS KNOWN TO MAN BY WHICH A GOVERNMENT
COULD DIRECTLY EFFECT SELF-INCRIMINATION.  IT COULD COMPEL THE
INDIVIDUAL TO TESTIFY - A COMPULSION EFFECTED, IF NEED BE, BY TORTURE. 
IT COULD SECURE POSSESSION OF HIS PAPERS AND OTHER ARTICLES INCIDENT TO
HIS PRIVATE LIFE - A SEIZURE EFFECTED, IF NEED BE, BY BREAKING AND
ENTRY.  PROTECTION AGAINST SUCH INVASION OF 'THE SANCTITIES OF A MAN'S
HOME AND THE PRIVACIES OF LIFE' WAS PROVIDED IN THE FOURTH AND FIFTH
AMENDMENTS BY SPECIFIC LANGUAGE.  BOYD V. UNITED STATES, 116 U.S. 616,
630.  BUT 'TIME WORKS CHANGES, BRINGS INTO EXISTENCE NEW CONDITIONS AND
PURPOSES.'  SUBTLER AND MORE FAR-REACHING MEANS OF INVADING PRIVACY
HAVE BECOME AVAILABLE TO THE GOVERNMENT.  DISCOVERY AND INVENTION HAVE
MADE IT POSSIBLE FOR THE GOVERNMENT, BY MEANS FAR MORE EFFECTIVE THAN
STRETCHING UPON THE RACK, TO OBTAIN DISCLOSURE IN COURT OF WHAT IS
WHISPERED IN THE CLOSET. 

"MOREOVER, 'IN THE APPLICATION OF A CONSTITUTION, OUR CONTEMPLATION
CANNOT BE ONLY OF WHAT HAS BEEN BUT OF WHAT MAY BE.'  THE PROGRESS OF
SCIENCE IN FURNISHING THE GOVERNMENT WITH MEANS OF ESPIONAGE IS NOT
LIKELY TO STOP WITH WIRE-TAPPING.  WAYS MAY SOME DAY BE DEVELOPED BY
WHICH THE GOVERNMENT, WITHOUT REMOVING PAPERS FROM SECRET DRAWERS, CAN
REPRODUCE THEM IN COURT, AND BY WHICH IT WILL BE ENABLED TO EXPOSE TO A
JURY THE MOST INTIMATE OCCURRENCES OF THE HOME.  ADVANCES IN THE
PSYCHIC AND RELATED SCIENCES MAY BRING MEANS OF EXPLORING UNEXPRESSED
BELIEFS, THOUGHTS AND EMOTIONS.  'THAT PLACES THE LIBERTY OF EVERY MAN
IN THE HANDS OF EVERY PETTY OFFICER' WAS SAID BY JAMES OTIS OF MUCH
LESSER INTRUSIONS THAN THESE.  TO LORD CAMDEN, A FAR SLIGHTER INTRUSION
SEEMED 'SUBVERSIVE OF ALL THE COMFORTS OF SOCIETY.'  CAN IT BE THAT THE
CONSTITUTION AFFORDS NO PROTECTION AGAINST SUCH INVASIONS OF INDIVIDUAL
SECURITY? 

     *         *         *         *   * 

"THE MAKERS OF OUR CONSTITUTION UNDERTOOK TO SECURE CONDITIONS
FAVORABLE TO THE PURSUIT OF HAPPINESS.  THEY RECOGNIZED THE
SIGNIFICANCE OF MAN'S SPIRITUAL NATURE, OF HIS FEELINGS AND OF HIS
INTELLECT.  THEY KNEW THAT ONLY A PART OF THE PAIN, PLEASURE AND
SATISFACTIONS OF LIFE ARE TO BE FOUND IN MATERIAL THINGS.  THEY SOUGHT
TO PROTECT AMERICANS IN THEIR BELIEFS, THEIR THOUGHTS, THEIR EMOTIONS
AND THEIR SENSATIONS.  THEY CONFERRED, AS AGAINST THE GOVERNMENT, THE
RIGHT TO BE LET ALONE - THE MOST COMPREHENSIVE OF RIGHTS AND THE RIGHT
MOST VALUED BY CIVILIZED MEN.  TO PROTECT THAT RIGHT, EVERY
UNJUSTIFIABLE INTRUSION BY THE GOVERNMENT UPON THE PRIVACY OF THE
INDIVIDUAL, WHATEVER THE MEANS EMPLOYED, MUST BE DEEMED A VIOLATION OF
THE FOURTH AMENDMENT.  AND THE USE, AS EVIDENCE IN A CRIMINAL
PROCEEDING, OF FACTS ASCERTAINED BY SUCH INTRUSION MUST BE DEEMED A
VIOLATION OF THE FIFTH. 

     *         *         *         *   * 

"EXPERIENCE SHOULD TEACH US TO BE MOST ON OUR GUARD TO PROTECT
LIBERTY WHEN THE GOVERNMENT'S PURPOSES ARE BENEFICENT.  MEN BORN TO
FREEDOM ARE NATURALLY ALERT TO REPEL INVASION OF THEIR LIBERTY BY EVIL
MINDED RULERS.  THE GREATEST DANGERS TO LIBERTY LURK IN INSIDIOUS
ENCROACHMENT BY MEN OF ZEAL, WELL-MEANING BUT WITHOUT UNDERSTANDING." 
277 U.S., SUPRA, AT 473-474, 478-479. 

THAT PHILOSOPHY IS APPLICABLE NOT ONLY TO A DETECTAPHONE PLACED
AGAINST THE WALL OR A MECHANICAL DEVICE DESIGNED TO RECORD THE SOUNDS
FROM TELEPHONE WIRES BUT ALSO TO THE 'WALKY-TALKY" RADIO USED IN THE
PRESENT CASE.  THE NATURE OF THE INSTRUMENT THAT SCIENCE OR ENGINEERING
DEVELOPS IS NOT IMPORTANT.  THE CONTROLLING, THE DECISIVE FACTOR IS THE
INVASION OF PRIVACY AGAINST THE COMMAND OF THE FOURTH AND FIFTH
AMENDMENTS. 

I WOULD REVERSE THIS JUDGMENT.  IT IS IMPORTANT TO CIVIL LIBERTIES
THAT WE PAY MORE THAN LIP SERVICE TO THE VIEW THAT THIS MANNER OF
OBTAINING EVIDENCE AGAINST PEOPLE IS "DIRTY BUSINESS" (SEE MR. JUSTICE
HOLMES, DISSENTING, OLMSTEAD V. UNITED STATES, SUPRA, P. 470). 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING. 

I AGREE WITH THE DISSENTING OPINION BELOW THAT WHAT LEE OVERHEARD BY
MEANS OF A RADIO TRANSMITTER SURREPTITIOUSLY INTRODUCED AND OPERATING,
WITHOUT WARRANT OR CONSENT, WITHIN PETITIONER'S PREMISES, SHOULD NOT
HAVE BEEN ADMITTED IN EVIDENCE.  THE FOURTH AMENDMENT'S PROTECTION
AGAINST UNREASONABLE SEARCHES AND SEIZURES IS NOT LIMITED TO THE
SEIZURE OF TANGIBLE THINGS.  IT EXTENDS TO INTANGIBLES, SUCH AS SPOKEN
WORDS.  IN APPLYING THE EXCLUSIONARY RULE OF WEEKS V. UNITED STATES,
232 U.S. 383, WE ARE PRIMARILY CONCERNED WITH WHERE AND HOW THE
EVIDENCE IS SEIZED RATHER THAN WHAT THE EVIDENCE IS. CF. SILVERTHORNE
LUMBER CO. V. UNITED STATES, 251 U.S. 385; UNITED STATES V. JEFFERS,
342 U.S. 48; NUESLEIN V. DISTRICT OF COLUMBIA, 73 APP. D.C. 85, 115
F.2D 690. 

IT SEEMS CLEAR THAT IF FEDERAL OFFICERS WITHOUT WARRANT OR PERMISSION
ENTER A HOUSE, UNDER CONDITIONS AMOUNTING TO UNREASONABLE SEARCH, AND
THERE CONCEAL THEMSELVES, THE CONVERSATIONS THEY THEREBY OVERHEAR ARE
INADMISSIBLE IN A FEDERAL CRIMINAL ACTION.  IT IS ARGUED THAT, IN THE
INSTANT CASE, THERE WAS NO ILLEGAL ENTRY BECAUSE PETITIONER CONSENTED
IN CHIN POY'S PRESENCE.  THIS OVERLOOKS THE FACT THAT CHIN POY, WITHOUT
WARRANT AND WITHOUT PETITIONER'S CONSENT, TOOK WITH HIM THE CONCEALED
RADIO TRANSMITTER TO WHICH AGENT LEE'S RECEIVING SET WAS TUNED.  FOR
THESE PURPOSES, THAT AMOUNTED TO CHIN POY SURREPTITIOUSLY BRINGING LEE
WITH HIM. 

THIS COURT HAS HELD GENERALLY THAT, IN A FEDERAL CRIMINAL TRIAL, A
FEDERAL OFFICER MAY TESTIFY TO WHAT HE SEES OR HEARS TAKE PLACE WITHIN
A HOUSE OR ROOM WHICH HE HAS NO WARRANT OR PERMISSION TO ENTER,
PROVIDED HE SEES OR HEARS IT OUTSIDE OF THOSE PREMISES.  OLMSTEAD V.
UNITED STATES, 277 U.S. 438.  CF. HESTER V. UNITED STATES, 265 U.S.
57.  THIS HOLDS TRUE EVEN WHERE THE OFFICER SUPPLEMENTS HIS HEARING
WITH A HEARING AID, DETECTAPHONE OR OTHER DEVICE OUTSIDE THE PREMISES. 
THIS MERELY ENABLES HIM TO HEAR MORE DISTINCTLY, WHERE HE IS, WHAT
REACHES HIM THERE FROM WHEREVER IT MAY COME.  HE AND HIS HEARING AID
PICK UP THE SOUNDS OUTSIDE OF, RATHER THAN WITHIN THE PROTECTED
PREMISES.  GOLDMAN V. UNITED STATES, 316 U.S. 129. 

IN THE INSTANT CASE, CHIN POY, WHO WAS LAWFULLY IN PETITIONER'S ROOM,
COULD HAVE TESTIFIED AS TO WHAT HE, HIMSELF, SAW OR HEARD THERE.  YET,
IF HE HAD BEEN THERE UNLAWFULLY OR SURREPTITIOUSLY, WITHOUT WARRANT OR
CONSENT, UNDER CONDITIONS AMOUNTING TO AN UNREASONABLE SEARCH, HE
SHOULD NOT BE PERMITTED, IN THIS PROCEEDING, TO TESTIFY EVEN TO THAT. 
CF. GOULED V. UNITED STATES, 255 U.S. 298; NUESLEIN V. DISTRICT OF
COLUMBIA, SUPRA.  SIMILARLY, IF LEE, UNDER LIKE CONDITIONS, WITHOUT
WARRANT AND WITHOUT AUTHORITY, ENTERED THE ROOM WITH CHIN POY AND,
WHILE CONCEALED, OVERHEARD PETITIONER'S CONVERSATION WITH CHIN POY,
LEE'S TESTIMONY SHOULD BE EXCLUDED.  IN SUBSTANCE, THAT IS WHAT TOOK
PLACE HERE.  LEE'S OVERHEARING OF PETITIONER'S STATEMENTS WAS
ACCOMPLISHED THROUGH CHIN POY'S SURREPTITIOUS INTRODUCTION, WITHIN
PETITIONER'S LAUNDRY, OF LEE'S CONCEALED RADIO TRANSMITTER WHICH,
WITHOUT PETITIONER'S KNOWLEDGE OR CONSENT, THERE PICKED UP PETITIONER'S
CONVERSATION AND TRANSMITTED IT TO LEE OUTSIDE THE PREMISES.  THE
PRESENCE OF THE TRANSMITTER, FOR THIS PURPOSE, WAS THE PRESENCE OF
LEE'S EAR.  WHILE THIS TEST DRAWS A NARROW LINE BETWEEN WHAT IS
ADMISSIBLE AND WHAT IS NOT, IT IS A CLEARLY ASCERTAINABLE LINE.  IT IS
DETERMINED BY WHERE THE "EFFECTS" ARE SEIZED OR, AS HERE, WHERE THE
WORDS ARE PICKED UP.  IN THIS CASE THE WORDS WERE PICKED UP WITHOUT
WARRANT OR CONSENT WITHIN THE CONSTITUTIONALLY INVIOLATE "HOUSE" OF A
PERSON ENTITLED TO PROTECTION THERE AGAINST UNREASONABLE SEARCHES AND
SEIZURES OF HIS PERSON, HOUSE, PAPERS AND EFFECTS.  IT IS INEVITABLE
THAT THE LINE BE NARROW BETWEEN, ON THE ONE HAND, THE CONSTITUTIONAL
RIGHT OF A PERSON TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES
AND, ON THE OTHER, THE NEED FOR THE EFFECTIVE PROSECUTION OF CRIME. 
DRAWING THE LINE IS A CONTINUING PROCESS.  THE IMPORTANT THING IS THAT
THE DIRECTION OF THE LINE THAT EMERGES FROM SUCCESSIVE CASES BE CLEAR. 
..END :





















NATIONAL LABOR RELATIONS BOARD V. AMERICAN NATIONAL INSURANCE CO. 343
U.S. 395 


NO. 126.  ARGUED MARCH 4, 1952 - DECIDED MAY 26, 1952 - 187 F.2D 307,
AFFIRMED. 


1.  UNDER THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, THE NATIONAL
LABOR RELATIONS BOARD MAY NOT, EITHER DIRECTLY OR INDIRECTLY, COMPEL
CONCESSIONS OR OTHERWISE SIT IN JUDGMENT UPON THE SUBSTANTIVE TERMS OF
COLLECTIVE BARGAINING AGREEMENTS.  PP. 401-404. 

2.  IT IS NOT PER SE AN "UNFAIR LABOR PRACTICE" UNDER SEC. 8(A)(1) OR
(5) OF THE ACT FOR AN EMPLOYER TO BARGAIN FOR THE INCLUSION IN A
COLLECTIVE BARGAINING AGREEMENT OF A "MANAGEMENT FUNCTIONS CLAUSE"
PROVIDING THAT THE RIGHT TO SELECT, HIRE, PROMOTE, DISCHARGE, DEMOTE OR
DISCIPLINE FOR CAUSE AND TO DETERMINE THE SCHEDULES OF WORK, IS A
PREROGATIVE OF MANAGEMENT ON WHICH THE EMPLOYER'S FINAL DECISION SHALL
NOT BE SUBJECT TO ARBITRATION.  PP. 404-409. 

(A)  THE ACT DOES NOT EMPOWER THE BOARD TO DISRUPT COMMON COLLECTIVE
BARGAINING PRACTICES BY FORBIDDING EMPLOYERS TO BARGAIN FOR FLEXIBLE
TREATMENT OF SUCH MATTERS AND BY REQUIRING THEM TO INCLUDE IN LABOR
AGREEMENTS PROVISIONS ESTABLISHING FIXED STANDARDS FOR WORK SCHEDULES
OR ANY OTHER CONDITION OF EMPLOYMENT.  P. 408. 

(B)  THE DUTY TO BARGAIN COLLECTIVELY IS TO BE ENFORCED BY
APPLICATION OF THE GOOD-FAITH BARGAINING STANDARDS OF SEC. 8(D) TO THE
FACTS OF EACH CASE RATHER THAN BY PROHIBITING ALL EMPLOYERS IN EVERY
INDUSTRY FROM BARGAINING FOR MANAGEMENT FUNCTIONS CLAUSES ALTOGETHER. 
P. 409. 

3.  CONGRESS HAS CHARGED THE COURTS OF APPEAL, NOT THIS COURT, WITH
THE NORMAL AND PRIMARY RESPONSIBILITY OF REVIEWING THE CONCLUSIONS OF
THE BOARD AND DECIDING WHETHER TO GRANT OR DENY ENFORCEMENT OF THE
BOARD'S ORDERS; AND IT IS NOT FOR THIS COURT TO REVIEW A CONFLICT OF
THE EVIDENCE NOR TO REVERSE A COURT OF APPEALS BECAUSE THIS COURT MIGHT
FIND THE RECORD TILTING ONE WAY RATHER THAN THE OTHER - ESPECIALLY IN
CASES INVOLVING A STATUTORY STANDARD SUCH AS "GOOD FAITH," WHICH CAN
HAVE MEANING ONLY IN ITS APPLICATION TO THE FACTS OF A PARTICULAR
CASE.  LABOR BOARD V. PITTSBURGH S.S. CO., 340 U.S. 498.  PP. 409-410. 

4.  THAT A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE UNION AND THE
EMPLOYER WAS NEGOTIATED AND SIGNED DID NOT RENDER THIS CAUSE MOOT.  P.
399, N. 4. 

NATIONAL LABOR RELATIONS BOARD V. AMERICAN NATIONAL INSURANCE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE COURT OF APPEALS GRANTED IN PART AND DENIED IN PART ENFORCEMENT
OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 89 N.L.R.B. 185,
REQUIRING AN EMPLOYER TO BARGAIN COLLECTIVELY WITH A UNION AND, IN
EFFECT, FORBIDDING THE EMPLOYER TO BARGAIN FOR ANY "MANAGEMENT
FUNCTIONS CLAUSE" COVERING A CONDITION OF EMPLOYMENT.  187 F.2D 307. 
THIS COURT GRANTED CERTIORARI.  342 U.S. 809.  AFFIRMED, P. 410. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES OUT OF A COMPLAINT THAT RESPONDENT REFUSED TO
BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF ITS EMPLOYEES AS
REQUIRED UNDER THE NATIONAL LABOR RELATIONS ACT, AS AMENDED.  (FN1) 

THE OFFICE EMPLOYEES INTERNATIONAL UNION, A.F. OF L., LOCAL NO. 27,
CERTIFIED BY THE NATIONAL LABOR RELATIONS BOARD AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF RESPONDENT'S OFFICE EMPLOYEES, REQUESTED A
MEETING WITH RESPONDENT FOR THE PURPOSE OF NEGOTIATING AN AGREEMENT
GOVERNING EMPLOYMENT RELATIONS.  AT THE FIRST MEETINGS, BEGINNING ON
NOVEMBER 30, 1948, THE UNION SUBMITTED A PROPOSED CONTRACT COVERING
WAGES, HOURS, PROMOTIONS, VACATIONS AND OTHER PROVISIONS COMMONLY FOUND
IN COLLECTIVE BARGAINING AGREEMENTS, INCLUDING A CLAUSE ESTABLISHING A
PROCEDURE FOR SETTLING GRIEVANCES ARISING UNDER THE CONTRACT BY
SUCCESSIVE APPEALS TO MANAGEMENT WITH ULTIMATE RESORT TO AN
ARBITRATOR. 

ON JANUARY 10, 1949, FOLLOWING A RECESS FOR STUDY OF THE UNION'S
CONTRACT PROPOSALS, RESPONDENT OBJECTED TO THE PROVISIONS CALLING FOR
UNLIMITED ARBITRATION.  TO MEET THIS OBJECTION, RESPONDENT PROPOSED A
SO-CALLED MANAGEMENT FUNCTIONS CLAUSE LISTING MATTERS SUCH AS
PROMOTIONS, DISCIPLINE AND WORK SCHEDULING AS THE RESPONSIBILITY OF
MANAGEMENT AND EXCLUDING SUCH MATTERS FROM ARBITRATION.  (FN2)  THE
UNION'S REPRESENTATIVE TOOK THE POSITION "AS SOON AS HE HEARD THE
PROPOSED CLAUSE" THAT THE UNION WOULD NOT AGREE TO SUCH A CLAUSE SO
LONG AS IT COVERED MATTERS SUBJECT TO THE DUTY TO BARGAIN COLLECTIVELY
UNDER THE LABOR ACT. 

SEVERAL FURTHER BARGAINING SESSIONS WERE HELD WITHOUT REACHING
AGREEMENT ON THE UNION'S PROPOSAL OR RESPONDENT'S COUNTERPROPOSAL TO
UNLIMITED ARBITRATION.  AS A RESULT, THE MANAGEMENT FUNCTIONS CLAUSE
WAS "BY-PASSED" FOR BARGAINING ON OTHER TERMS OF THE UNION'S CONTRACT
PROPOSAL.  ON JANUARY 17, 1949, RESPONDENT STATED IN WRITING ITS
AGREEMENT WITH SOME OF THE TERMS PROPOSED BY THE UNION AND, WHERE THERE
WAS DISAGREEMENT, RESPONDENT OFFERED COUNTERPROPOSALS, INCLUDING A
CLAUSE ENTITLED "FUNCTIONS AND PREROGATIVES OF MANAGEMENT" ALONG THE
LINES SUGGESTED AT THE MEETING OF JANUARY 10TH.  THE UNION OBJECTED TO
THE PORTION OF THE CLAUSE PROVIDING: 

"THE RIGHT TO SELECT AND HIRE, TO PROMOTE TO A BETTER POSITION, TO
DISCHARGE, DEMOTE OR DISCIPLINE FOR CAUSE, AND TO MAINTAIN DISCIPLINE
AND EFFICIENCY OF EMPLOYEES AND TO DETERMINE THE SCHEDULES OF WORK IS
RECOGNIZED BY BOTH UNION AND COMPANY AS THE PROPER RESPONSIBILITY AND
PREROGATIVE OF MANAGEMENT TO BE HELD AND EXERCISED BY THE COMPANY, AND
WHILE IT IS AGREED THAT AN EMPLOYEE FEELING HIMSELF TO HAVE BEEN
AGGRIEVED BY ANY DECISION OF THE COMPANY IN RESPECT TO SUCH MATTERS, OR
THE UNION IN HIS BEHALF, SHALL HAVE THE RIGHT TO HAVE SUCH DECISION
REVIEWED BY TOP MANAGEMENT OFFICIALS OF THE COMPANY UNDER THE GRIEVANCE
MACHINERY HEREINAFTER SET FORTH, IT IS FURTHER AGREED THAT THE FINAL
DECISION OF THE COMPANY MADE BY SUCH TOP MANAGEMENT OFFICIALS SHALL NOT
BE FURTHER REVIEWABLE BY ARBITRATION." 

AT THIS STAGE OF THE NEGOTIATIONS, THE NATIONAL LABOR RELATIONS BOARD
FILED A COMPLAINT AGAINST RESPONDENT BASED ON THE UNION'S CHARGE THAT
RESPONDENT HAD REFUSED TO BARGAIN AS REQUIRED BY THE LABOR ACT AND WAS
THEREBY GUILTY OF INTERFERING WITH THE RIGHTS OF ITS EMPLOYEES
GUARANTEED BY SECTION 7 OF THE ACT AND OF UNFAIR LABOR PRACTICES UNDER
WAS PENDING, NEGOTIATIONS BETWEEN THE UNION AND RESPONDENT CONTINUED
WITH THE MANAGEMENT FUNCTIONS CLAUSE REMAINING AN OBSTACLE TO
AGREEMENT.  DURING THE NEGOTIATIONS, RESPONDENT ESTABLISHED NEW NIGHT
SHIFTS AND INTRODUCED A NEW SYSTEM OF LUNCH HOURS WITHOUT CONSULTING
THE UNION. 

ON MAY 19, 1949, A UNION REPRESENTATIVE OFFERED A SECOND CONTRACT
PROPOSAL WHICH INCLUDED A MANAGEMENT FUNCTIONS CLAUSE CONTAINING MUCH
OF THE LANGUAGE FOUND IN RESPONDENT'S SECOND COUNTERPROPOSAL, QUOTED
ABOVE, WITH THE VITAL DIFFERENCE THAT QUESTIONS ARISING UNDER THE
UNION'S PROPOSED CLAUSE WOULD BE SUBJECT TO ARBITRATION AS IN THE CASE
OF OTHER GRIEVANCES.  FINALLY, ON JANUARY 13, 1950, AFTER THE TRIAL
EXAMINER HAD ISSUED HIS REPORT BUT BEFORE DECISION BY THE BOARD, AN
AGREEMENT BETWEEN THE UNION AND RESPONDENT WAS SIGNED.  (FN4)  THE
AGREEMENT CONTAINED A MANAGEMENT FUNCTIONS CLAUSE THAT RENDERED
NONARBITRABLE MATTERS OF DISCIPLINE, WORK SCHEDULES AND OTHER MATTERS
COVERED BY THE CLAUSE.  THE SUBJECT OF PROMOTIONS AND DEMOTIONS WAS
DELETED FROM THE CLAUSE AND MADE THE SUBJECT OF A SPECIAL CLAUSE
ESTABLISHING A UNION-MANAGEMENT COMMITTEE TO PASS UPON PROMOTION
MATTERS. 

WHILE THESE NEGOTIATIONS WERE IN PROGRESS, THE BOARD'S TRIAL EXAMINER
CONDUCTED HEARINGS ON THE UNION'S COMPLAINT.  THE EXAMINER HELD THAT
RESPONDENT HAD A RIGHT TO BARGAIN FOR INCLUSION OF A MANAGEMENT
FUNCTIONS CLAUSE IN A CONTRACT.  HOWEVER, UPON REVIEW OF THE ENTIRE
NEGOTIATIONS, INCLUDING RESPONDENT'S UNILATERAL ACTION IN CHANGING
WORKING CONDITIONS DURING THE BARGAINING, THE EXAMINER FOUND THAT FROM
AND AFTER NOVEMBER 30, 1948, RESPONDENT HAD REFUSED TO BARGAIN IN A
GOOD FAITH EFFORT TO REACH AGREEMENT.  THE EXAMINER RECOMMENDED THAT
RESPONDENT BE ORDERED IN GENERAL TERMS TO BARGAIN COLLECTIVELY WITH THE
UNION. 

THE BOARD AGREED WITH THE TRIAL EXAMINER THAT RESPONDENT HAD NOT
BARGAINED IN A GOOD FAITH EFFORT TO REACH AN AGREEMENT WITH THE UNION. 
BUT THE BOARD REJECTED THE EXAMINER'S VIEWS ON AN EMPLOYER'S RIGHT TO
BARGAIN FOR A MANAGEMENT FUNCTIONS CLAUSE AND HELD THAT RESPONDENT'S
ACTION IN BARGAINING FOR INCLUSION OF ANY SUCH CLAUSE "CONSTITUTED,
QUITE APART FROM RESPONDENT'S DEMONSTRATED BAD FAITH, PER SE VIOLATIONS
OF SECTION 8(A)(5) AND (1)."  ACCORDINGLY, THE BOARD NOT ONLY ORDERED
RESPONDENT IN GENERAL TERMS TO BARGAIN COLLECTIVELY WITH THE UNION
(PAR. 2(A)), BUT ALSO INCLUDED IN ITS ORDER A PARAGRAPH DESIGNED TO
PROHIBIT BARGAINING FOR ANY MANAGEMENT FUNCTIONS CLAUSE COVERING A
CONDITION OF EMPLOYMENT.  (PAR. 1(A)).  (FN5)  89 N.L.R.B. 185. 

ON RESPONDENT'S PETITION FOR REVIEW AND THE BOARD'S CROSS-PETITION
FOR ENFORCEMENT, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AGREED WITH
THE TRIAL EXAMINER'S VIEW THAT THE ACT DOES NOT PRECLUDE AN EMPLOYER
FROM BARGAINING FOR INCLUSION OF ANY MANAGEMENT FUNCTIONS CLAUSE IN A
LABOR AGREEMENT.  THE COURT OF APPEALS FURTHER FOUND THAT THE EVIDENCE
DOES NOT SUPPORT THE VIEW THAT RESPONDENT FAILED TO BARGAIN
COLLECTIVELY IN GOOD FAITH BY REASON OF ITS BARGAINING FOR A MANAGEMENT
FUNCTIONS CLAUSE.  AS A RESULT, ENFORCEMENT OF THE PORTION OF THE
BOARD'S ORDER DIRECTED TO THE MANAGEMENT FUNCTIONS CLAUSE (PAR. 1(A))
WAS DENIED.  OTHER PORTIONS OF THE BOARD'S ORDER (PARS. 1(B) AND 2(A))
WERE ENFORCED BECAUSE RESPONDENT'S UNILATERAL ACTION IN CHANGING
WORKING CONDITIONS DURING BARGAINING DOES SUPPORT A FINDING THAT
RESPONDENT HAD NOT BARGAINED COLLECTIVELY IN GOOD FAITH AS REQUIRED BY
THE ACT.  187 F.2D 307.  WE GRANTED CERTIORARI ON PETITION OF THE BOARD
FOR REVIEW OF THE DENIAL OF ENFORCEMENT AS TO PARAGRAPH 1(A) OF THE
BOARD'S ORDER.  342 U.S. 809. 

FIRST.  THE NATIONAL LABOR RELATIONS ACT IS DESIGNED TO PROMOTE
INDUSTRIAL PEACE BY ENCOURAGING THE MAKING OF VOLUNTARY AGREEMENTS
GOVERNING RELATIONS BETWEEN UNIONS AND EMPLOYERS.  (FN6)  THE ACT DOES
NOT COMPEL ANY AGREEMENT WHATSOEVER BETWEEN EMPLOYEES AND EMPLOYERS. 
(FN7)  NOR DOES THE ACT REGULATE THE SUBSTANTIVE TERMS GOVERNING WAGES,
HOURS AND WORKING CONDITIONS WHICH ARE INCORPORATED IN AN AGREEMENT. 
(FN8)  THE THEORY OF THE ACT IS THAT THE MAKING OF VOLUNTARY LABOR
AGREEMENTS IS ENCOURAGED BY PROTECTING EMPLOYEES' RIGHTS TO ORGANIZE
FOR COLLECTIVE BARGAINING AND BY IMPOSING ON LABOR AND MANAGEMENT THE
MUTUAL OBLIGATION TO BARGAIN COLLECTIVELY. 

ENFORCEMENT OF THE OBLIGATION TO BARGAIN COLLECTIVELY IS CRUCIAL TO
THE STATUTORY SCHEME.  AND, AS HAS LONG BEEN RECOGNIZED, PERFORMANCE OF
THE DUTY TO BARGAIN REQUIRES MORE THAN A WILLINGNESS TO ENTER UPON A
STERILE DISCUSSION OF UNION-MANAGEMENT DIFFERENCES.  BEFORE THE
ENACTMENT OF THE NATIONAL LABOR RELATIONS ACT, IT WAS HELD THAT THE
DUTY OF AN EMPLOYER TO BARGAIN COLLECTIVELY REQUIRED THE EMPLOYER "TO
NEGOTIATE IN GOOD FAITH WITH HIS EMPLOYEES' REPRESENTATIVES; TO MATCH
THEIR PROPOSALS, IF UNACCEPTABLE, WITH COUNTER-PROPOSALS; AND TO MAKE
EVERY REASONABLE EFFORT TO REACH AN AGREEMENT."  (FN9)  THE DUTY TO
BARGAIN COLLECTIVELY, IMPLICIT IN THE WAGNER ACT AS INTRODUCED IN
CONGRESS, WAS MADE EXPRESS BY THE INSERTION OF THE FIFTH EMPLOYER
UNFAIR LABOR PRACTICE ACCOMPANIED BY AN EXPLANATION OF THE PURPOSE AND
MEANING OF THE PHRASE "BARGAIN COLLECTIVELY IN A GOOD FAITH EFFORT TO
REACH AN AGREEMENT."  (FN10)  THIS UNDERSTANDING OF THE DUTY TO BARGAIN
COLLECTIVELY HAS BEEN ACCEPTED AND APPLIED THROUGHOUT THE
ADMINISTRATION OF THE WAGNER ACT BY THE NATIONAL LABOR RELATIONS BOARD
AND THE COURTS OF APPEAL.  (FN11) 

IN 1947, THE FEAR WAS EXPRESSED IN CONGRESS THAT THE BOARD "HAS GONE
VERY FAR, IN THE GUISE OF DETERMINING WHETHER OR NOT EMPLOYERS HAD
BARGAINED IN GOOD FAITH, IN SETTING ITSELF UP AS THE JUDGE OF WHAT
CONCESSIONS AN EMPLOYER MUST MAKE AND OF THE PROPOSALS AND COUNTER
PROPOSALS THAT HE MAY OR MAY NOT MAKE."  (FN12)  ACCORDINGLY, THE
HARTLEY BILL, PASSED BY THE HOUSE, ELIMINATED THE GOOD FAITH TEST AND
EXPRESSLY PROVIDED THAT THE DUTY TO BARGAIN COLLECTIVELY DID NOT
REQUIRE SUBMISSION OF COUNTERPROPOSALS.  (FN13)  AS AMENDED IN THE
SENATE AND PASSED AS THE TAFT-HARTLEY ACT, THE GOOD FAITH TEST OF
BARGAINING WAS RETAINED AND WRITTEN INTO SECTION 8(D) OF THE NATIONAL
LABOR RELATIONS ACT.  THAT SECTION CONTAINS THE EXPRESS PROVISION THAT
THE OBLIGATION TO BARGAIN COLLECTIVELY DOES NOT COMPEL EITHER PARTY TO
AGREE TO A PROPOSAL OR REQUIRE THE MAKING OF A CONCESSION.  (FN14) 

THUS IT IS NOW APPARENT FROM THE STATUTE ITSELF THAT THE ACT DOES NOT
ENCOURAGE A PARTY TO ENGAGE IN FRUITLESS MARATHON DISCUSSIONS AT THE
EXPENSE OF FRANK STATEMENT AND SUPPORT OF HIS POSITION.  AND IT IS
EQUALLY CLEAR THAT THE BOARD MAY NOT, EITHER DIRECTLY OR INDIRECTLY,
COMPEL CONCESSIONS OR OTHERWISE SIT IN JUDGMENT UPON THE SUBSTANTIVE
TERMS OF COLLECTIVE BARGAINING AGREEMENTS. 

SECOND.  THE BOARD OFFERS IN SUPPORT OF THE PORTION OF ITS ORDER
BEFORE THIS COURT A THEORY QUITE APART FROM THE TEST OF GOOD FAITH
BARGAINING PRESCRIBED IN SECTION 8(D) OF THE ACT, A THEORY THAT
RESPONDENT'S BARGAINING FOR A MANAGEMENT FUNCTIONS CLAUSE AS A
COUNTERPROPOSAL TO THE UNION'S DEMAND FOR UNLIMITED ARBITRATION WAS,
"PER SE," A VIOLATION OF THE ACT. 

COUNSEL FOR THE BOARD DO NOT CONTEND THAT A MANAGEMENT FUNCTIONS
CLAUSE COVERING SOME CONDITIONS OF EMPLOYMENT IS AN ILLEGAL CONTRACT
TERM.  (FN15)  AS A MATTER OF FACT, A REVIEW OF TYPICAL CONTRACT
CLAUSES COLLECTED FOR CONVENIENCE IN DRAFTING LABOR AGREEMENTS SHOWS
THAT MANAGEMENT FUNCTIONS CLAUSES SIMILAR IN ESSENTIAL DETAIL TO THE
CLAUSE PROPOSED BY RESPONDENT HAVE BEEN INCLUDED IN CONTRACTS
NEGOTIATED BY NATIONAL UNIONS WITH MANY EMPLOYERS.  (FN16)  THE
NATIONAL WAR LABOR BOARD, EMPOWERED DURING THE LAST WAR "TO DECIDE THE
DISPUTE, AND PROVIDE BY ORDER THE WAGES AND HOURS AND ALL OTHER TERMS
AND CONDITIONS (CUSTOMARILY INCLUDED IN COLLECTIVE-BARGAINING
AGREEMENTS)," (FN17) ORDERED MANAGEMENT FUNCTIONS CLAUSES INCLUDED IN A
NUMBER OF AGREEMENTS.  (FN18)  SEVERAL SUCH CLAUSES ORDERED BY THE WAR
LABOR BOARD PROVIDED FOR ARBITRATION IN CASE OF UNION DISSATISFACTION
IN THE EXERCISE OF MANAGEMENT FUNCTIONS, WHILE OTHERS, AS IN THE CLAUSE
PROPOSED BY RESPONDENT IN THIS CASE, PROVIDED THAT MANAGEMENT DECISIONS
WOULD BE FINAL.  (FN19) WITHOUT INTIMATING ANY OPINION AS TO THE FORM
OF MANAGEMENT FUNCTIONS CLAUSE PROPOSED BY RESPONDENT IN THIS CASE OR
THE DESIRABILITY OF INCLUDING ANY SUCH CLAUSE IN A LABOR AGREEMENT, IT
IS MANIFEST THAT BARGAINING FOR MANGEMENT FUNCTIONS CLAUSES IS COMMON
COLLECTIVE BARGAINING PRACTICE. 

IF THE BOARD IS CORRECT, AN EMPLOYER VIOLATES THE ACT BY BARGAINING
FOR A MANAGEMENT FUNCTIONS CLAUSE TOUCHING ANY CONDITION OF EMPLOYMENT
WITHOUT REGARD TO THE TRADITIONS OF BARGAINING IN THE PARTICULAR
INDUSTRY OR SUCH OTHER EVIDENCE OF GOOD FAITH AS THE FACT IN THIS CASE
THAT RESPONDENT'S CLAUSE WAS OFFERED AS A COUNTERPROPOSAL TO THE
UNION'S DEMAND FOR UNLIMITED ARBITRATION.  THE BOARD'S ARGUMENT IS A
TECHNICAL ONE FOR IT IS CONCEDED THAT RESPONDENT WOULD NOT BE GUILTY OF
AN UNFAIR LABOR PRACTICE IF, INSTEAD OF PROPOSING A CLAUSE THAT REMOVED
SOME MATTERS FROM ARBITRATION, IT SIMPLY REFUSED IN GOOD FAITH TO AGREE
TO THE UNION PROPOSAL FOR UNLIMITED ARBITRATION.  THE ARGUMENT STARTS
WITH A FINDING, NOT CHALLENGED BY THE COURT BELOW OR BY RESPONDENT,
(FN20) THAT AT LEAST SOME OF THE MATTERS COVERED BY THE MANAGEMENT
FUNCTIONS CLAUSE PROPOSED BY RESPONDENT ARE "CONDITIONS OF EMPLOYMENT"
WHICH ARE APPROPRIATE SUBJECTS OF COLLECTIVE BARGAINING UNDER SECTIONS
8(A)(5), 8(D) AND 9(A) OF THE ACT.  (FN21)  THE BOARD CONSIDERS THAT
EMPLOYER BARGAINING FOR A CLAUSE UNDER WHICH MANAGEMENT RETAINS INITIAL
RESPONSIBILITY FOR WORK SCHEDULING, A "CONDITION OF EMPLOYMENT," FOR
THE DURATION OF THE CONTRACT IS AN UNFAIR LABOR PRACTICE BECAUSE IT IS
"IN DEROGATION OF" EMPLOYEES' STATUTORY RIGHTS TO BARGAIN COLLECTIVELY
AS TO CONDITIONS OF EMPLOYMENT.  (FN22)    CONCEDING THAT THERE IS
NOTHING UNLAWFUL IN INCLUDING A MANAGEMENT FUNCTIONS CLAUSE IN A LABOR
AGREEMENT, THE BOARD WOULD PERMIT AN EMPLOYER TO "PROPOSE" SUCH A
CLAUSE.  BUT THE BOARD WOULD FORBID BARGAINING FOR ANY SUCH CLAUSE WHEN
THE UNION DECLINES TO ACCEPT THE PROPOSAL, EVEN WHERE THE CLAUSE IS
OFFERED AS A COUNTERPROPOSAL TO A UNION DEMAND FOR UNLIMITED
ARBITRATION.  IGNORING THE NATURE OF THE UNION'S DEMAND IN THIS CASE,
THE BOARD TAKES THE POSITION THAT EMPLOYERS SUBJECT TO THE ACT MUST
AGREE TO INCLUDE IN ANY LABOR AGREEMENT PROVISIONS ESTABLISHING FIXED
STANDARDS FOR WORK SCHEDULES OR ANY OTHER CONDITION OF EMPLOYMENT.  AN
EMPLOYER WOULD BE PERMITTED TO BARGAIN AS TO THE CONTENT OF THE
STANDARD SO LONG AS HE AGREES TO FREEZE A STANDARD INTO A CONTRACT. 
BARGAINING FOR MORE FLEXIBLE TREATMENT OF SUCH MATTERS WOULD BE DENIED
EMPLOYERS EVEN THOUGH THE RESULT MAY BE CONTRARY TO COMMON COLLECTIVE
BARGAINING PRACTICE IN THE INDUSTRY.  THE BOARD WAS NOT EMPOWERED SO TO
DISRUPT COLLECTIVE BARGAINING PRACTICES.  ON THE CONTRARY, THE TERM
"BARGAIN COLLECTIVELY" AS USED IN THE ACT "HAS BEEN CONSIDERED TO
ABSORB AND GIVE STATUTORY APPROVAL TO THE PHILOSOPHY OF BARGAINING AS
WORKED OUT IN THE LABOR MOVEMENT IN THE UNITED STATES."  TELEGRAPHERS
V. RAILWAY EXPRESS AGENCY, 321 U.S. 342, 346 (1944). 

CONGRESS PROVIDED EXPRESSLY THAT THE BOARD SHOULD NOT PASS UPON THE
DESIRABILITY OF THE SUBSTANTIVE TERMS OF LABOR AGREEMENTS.  WHETHER A
CONTRACT SHOULD CONTAIN A CLAUSE FIXING STANDARDS FOR SUCH MATTERS AS
WORK SCHEDULING OR SHOULD PROVIDE FOR MORE FLEXIBLE TREATMENT OF SUCH
MATTERS IS AN ISSUE FOR DETERMINATION ACROSS THE BARGAINING TABLE, NOT
BY THE BOARD IF THE LATTER APPROACH IS AGREED UPON, THE EXTENT OF UNION
AND MANAGEMENT PARTICIPATION IN THE ADMINISTRATION OF SUCH MATTERS IS
ITSELF A CONDITION OF EMPLOYMENT TO BE SETTLED BY BARGAINING. 

ACCORDINGLY, WE REJECT THE BOARD'S HOLDING THAT BARGAINING FOR THE
MANAGEMENT FUNCTIONS CLAUSE PROPOSED BY RESPONDENT WAS, PER SE, AN
UNFAIR LABOR PRACTICE.  ANY FEARS THE BOARD MAY ENTERTAIN THAT USE OF
MANAGEMENT FUNCTIONS CLAUSES WILL LEAD TO EVASION OF AN EMPLOYER'S DUTY
TO BARGAIN COLLECTIVELY AS TO "RATES OF PAY, WAGES, HOURS AND
CONDITIONS OF EMPLOYMENT" DO NOT JUSTIFY CONDEMNING ALL BARGAINING FOR
MANAGEMENT FUNCTIONS CLAUSES COVERING ANY "CONDITION OF EMPLOYMENT" AS
PER SE VIOLATIONS OF THE ACT.  THE DUTY TO BARGAIN COLLECTIVELY IS TO
BE ENFORCED BY APPLICATION OF THE GOOD FAITH BARGAINING STANDARDS OF
EMPLOYERS IN EVERY INDUSTRY FROM BARGAINING FOR MANAGEMENT FUNCTIONS
CLAUSES ALTOGETHER. 

THIRD.  THE COURT BELOW CORRECTLY APPLIED THE STATUTORY STANDARD OF
GOOD FAITH BARGAINING TO THE FACTS OF THIS CASE.  IT HELD THAT THE
EVIDENCE, VIEWED AS A WHOLE, DOES NOT SHOW THAT RESPONDENT REFUSED TO
BARGAIN IN GOOD FAITH BY REASON OF ITS BARGAINING FOR A MANAGEMENT
FUNCTIONS CLAUSE AS A COUNTERPROPOSAL TO THE UNION'S DEMAND FOR
UNLIMITED ARBITRATION.  RESPONDENT'S UNILATERAL ACTION IN CHANGING
WORKING CONDITIONS DURING BARGAINING, NOW ADMITTED TO BE A DEPARTURE
FROM GOOD FAITH BARGAINING, IS THE SUBJECT OF AN ENFORCEMENT ORDER
ISSUED BY THE COURT BELOW AND NOT CHALLENGED IN THIS COURT. 

LAST TERM WE MADE IT PLAIN THAT CONGRESS CHARGED THE COURTS OF
APPEALS, NOT THIS COURT, WITH THE NORMAL AND PRIMARY RESPONSIBILITY FOR
REVIEWING THE CONCLUSIONS OF THE BOARD.  WE STATED THAT THIS COURT "IS
NOT THE PLACE TO REVIEW A CONFLICT OF EVIDENCE NOR TO REVERSE A COURT
OF APPEALS BECAUSE WERE WE IN ITS PLACE WE WOULD FIND THE RECORD
TILTING ONE WAY RATHER THAN THE OTHER, THOUGH FAIRMINDED JUDGES COULD
FIND IT TILTING EITHER WAY."  LABOR BOARD V. PITTSBURGH S.S. CO., 340
U.S. 498, 503 (1951).  WE REPEAT AND REAFFIRM THIS RULE, NOTING ITS
SPECIAL APPLICABILITY TO CASES WHERE, AS HERE, A STATUTORY STANDARD
SUCH AS "GOOD FAITH" CAN HAVE MEANING ONLY IN ITS APPLICATION TO THE
PARTICULAR FACTS OF A PARTICULAR CASE. 

ACCEPTING AS WE DO THE FINDING OF THE COURT BELOW THAT RESPONDENT
BARGAINED IN GOOD FAITH FOR THE MANAGEMENT FUNCTIONS CLAUSE PROPOSED BY
IT, WE HOLD THAT RESPONDENT WAS NOT IN THAT RESPECT GUILTY OF REFUSING
TO BARGAIN COLLECTIVELY AS REQUIRED BY THE NATIONAL LABOR RELATIONS
ACT.  ACCORDINGLY, ENFORCEMENT OF PARAGRAPH 1(A) OF THE BOARD'S ORDER
WAS PROPERLY DENIED.  (FN23)  AFFIRMED. 

FN1  49 STAT. 449 (1935), 29 U.S.C. SEC. 151 ET SEQ., AS AMENDED, 61
STAT. 136 (1947), 29 U.S.C. (SUPP.IV) SEC. 151 ET SEQ. 

FN2  AS DRAFTED DURING THE BARGAINING SESSION, THE PROPOSED CLAUSE
READ: 

"THE RIGHT TO SELECT, HIRE, TO PROMOTE, DEMOTE, DISCHARGE, DISCIPLINE
FOR CAUSE, TO MAINTAIN DISCIPLINE AND EFFICIENCY OF EMPLOYEES, AND TO
DETERMINE SCHEDULES OF WORK IS THE SOLE PREROGATIVE OF THE COMPANY AND
THE COMPANY'S DECISION WITH RESPECT TO SUCH MATTERS SHALL NEVER BE THE
SUBJECT OF ARBITRATION."  (R. I, P. 97). 

FN3  61 STAT. 136, 140-143 (1947): 

"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,  ...  . 

"SEC. 8.  (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 7: 

     *         *  *         *         * 

"(5)  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A). 

     *         *         *      *         * 

"(D)  FOR THE PURPOSES OF THIS SECTION, TO BARGAIN COLLECTIVELY IS
THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE EMPLOYER AND THE
REPRESENTATIVE OF THE EMPLOYEES TO MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT, OR THE NEGOTIATION OF AN AGREEMENT, OR ANY
QUESTION ARISING THEREUNDER, AND THE EXECUTION OF A WRITTEN CONTRACT
INCORPORATING ANY AGREEMENT REACHED IF REQUESTED BY EITHER PARTY, BUT
SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR
REQUIRE THE MAKING OF A CONCESSION:  ...  ." 

     *    *         *         *         * 

"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:  ...  ." 

FN4  RESPONDENT'S SUGGESTION THAT NEGOTIATION OF A CONTRACT RENDERED
THE CASE MOOT HAS BEEN PROPERLY REJECTED BELOW.  SEE LABOR BOARD V.
MEXIA TEXTILE MILLS, 339 U.S. 563 (1950); LABOR BOARD V. POOL MFG. CO.,
339 U.S. 577 (1950). 

FN5  THE BOARD ORDERED THAT RESPONDENT: 

"1.  CEASE AND DESIST FROM: 

"(A)  REFUSING TO BARGAIN COLLECTIVELY WITH OFFICE EMPLOYEES
INTERNATIONAL UNION, A.F.L., LOCAL NO. 27, AS THE EXCLUSIVE
REPRESENTATIVE OF ALL OF ITS EMPLOYEES AT ITS GALVESTON, TEXAS, OFFICE,
EXCLUDING GUARDS, SECRETARIES TO DEPARTMENT HEADS AND EXECUTIVES,
AGENTS, BUILDING AND MAINTENANCE EMPLOYEES, PROFESSIONAL EMPLOYEES,
DEPARTMENT HEADS, AND ALL OTHER SUPERVISORS AS DEFINED IN THE ACT, BY
INSISTING AS A CONDITION OF AGREEMENT, THAT THE SAID UNION AGREE TO A
PROVISION WHEREBY THE RESPONDENT RESERVES TO ITSELF THE RIGHT TO TAKE
UNILATERAL ACTION WITH RESPECT TO RATES OF PAY, WAGES, HOURS OF
EMPLOYMENT, AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT: 

(PARAGRAPH (B) PROSCRIBES OTHER CONDUCT NOT PERTINENT TO THE ISSUES
BEFORE THIS COURT.) 

"2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH THE BOARD FINDS WILL
EFFECTUATE THE POLICIES OF THE ACT: 

"(A)  UPON REQUEST, BARGAIN COLLECTIVELY WITH OFFICE EMPLOYEES
INTERNATIONAL UNION, A.F.L., LOCAL NO. 27, AS THE EXCLUSIVE
REPRESENTATIVE OF ALL ITS EMPLOYEES IN THE APPROPRIATE UNIT DESCRIBED
ABOVE WITH RESPECT TO RATES OF PAY, WAGES, HOURS OF EMPLOYMENT, AND
OTHER CONDITIONS OF EMPLOYMENT; ...  ." 

FN6  61 STAT. 136 ("FINDINGS AND POLICIES"); CONSOLIDATED EDISON CO.
V. LABOR BOARD, 305 U.S. 197, 236 (1938). 

FN7  LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 45
(1937). 

FN8  TERMINAL ASSN. V. TRAINMEN, 318 U.S. 1, 6 (1943): 

"THE RAILWAY LABOR ACT, LIKE THE NATIONAL LABOR RELATIONS ACT, DOES
NOT UNDERTAKE GOVERNMENTAL REGULATION OF WAGES, HOURS, OR WORKING
CONDITIONS.  INSTEAD IT SEEKS TO PROVIDE A MEANS BY WHICH AGREEMENT MAY
BE REACHED WITH RESPECT TO THEM.  THE NATIONAL INTEREST EXPRESSED BY
THOSE ACTS IS NOT PRIMARILY IN THE WORKING CONDITIONS AS SUCH.  SO FAR
AS THE ACT ITSELF IS CONCERNED THESE CONDITIONS MAY BE AS BAD AS THE
EMPLOYEES WILL TOLERATE OR BE MADE AS GOOD AS THEY CAN BARGAIN FOR. 
THE ACT DOES NOT FIX AND DOES NOT AUTHORIZE ANYONE TO FIX GENERALLY
APPLICABLE STANDARDS FOR WORKING CONDITIONS  ...  ." 

FN9  HOUDE ENGINEERING CORP., 1 N.L.R.B. (OLD) 35 (1934), DECIDED BY
THE NATIONAL LABOR RELATIONS BOARD ORGANIZED UNDER 48 STAT. 1183
(1934). 

FN10  BEFORE THE ADDITION OF SECTION 8(5), NOW SECTION 8(A)(5), TO
THE BILL, SENATOR WAGNER DESCRIBED THE BILL AS IMPOSING THE DUTY TO
BARGAIN IN GOOD FAITH, CITING THE HOUDE ENGINEERING CASE, NOTE 9,
SUPRA.  HEARINGS BEFORE THE SENATE COMMITTEE ON EDUCATION AND LABOR ON
S. 1958, 74TH CONG., 1ST SESS. 43 (1935).  SECTION 8(5) WAS INSERTED AT
THE SUGGESTION OF THE CHAIRMAN OF THE BOARD THAT DECIDED HOUDE.  ID.,
AT 79, 136-137.  THE INSERTION OF SECTION 8(5) WAS DESCRIBED BY THE
SENATE COMMITTEE AS FOLLOWS: 

"THE COMMITTEE WISHES TO DISPEL ANY POSSIBLE FALSE IMPRESSION THAT
THIS BILL IS DESIGNED TO COMPEL THE MAKING OF AGREEMENTS OR TO PERMIT
GOVERNMENTAL SUPERVISION OF THEIR TERMS.  IT MUST BE STRESSED THAT THE
DUTY TO BARGAIN COLLECTIVELY DOES NOT CARRY WITH IT THE DUTY TO REACH
AN AGREEMENT, BECAUSE THE ESSENCE OF COLLECTIVE BARGAINING IS THAT
EITHER PARTY SHALL BE FREE TO DECIDE WHETHER PROPOSALS MADE TO IT ARE
SATISFACTORY. 

"BUT, AFTER DELIBERATION, THE COMMITTEE HAS CONCLUDED THAT THIS FIFTH
UNFAIR LABOR PRACTICE SHOULD BE INSERTED IN THE BILL.  IT SEEMS CLEAR
THAT A GUARANTEE OF THE RIGHT OF EMPLOYEES TO BARGAIN COLLECTIVELY
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING IS A MERE DELUSION IF IT
IS NOT ACCOMPANIED BY THE CORRELATIVE DUTY ON THE PART OF THE OTHER
PARTY TO RECOGNIZE SUCH REPRESENTATIVES AS THEY HAVE BEEN DESIGNATED
(WHETHER AS INDIVIDUALS OR LABOR ORGANIZATIONS) AND TO NEGOTIATE WITH
THEM IN A BONA FIDE EFFORT TO ARRIVE AT A COLLECTIVE BARGAINING
AGREEMENT  ...  ."  S. REP. NO. 573, 74TH CONG., 1ST SESS. 12 (1935). 

SEE H.J. HEINZ CO. V. LABOR BOARD, 311 U.S. 514 (1941). 

FN11  THE BOARD APPLIED THE GOOD FAITH TEST OF BARGAINING FROM THE
OUTSET.  1 N.L.R.B. ANN. REP. 85-87 (1936).  CASES IN THE COURTS OF
APPEAL APPROVING AND APPLYING THE GOOD FAITH TEST OF BARGAINING ARE
COLLECTED IN 29 U.S.C.A. SEC. 158, NOTE 265. 

FN12  H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 19 (1947). 

FN13  H.R. 3020, 80TH CONG., 1ST SESS., SEC. 2(11)(1947). 

FN14  NOTE 3, SUPRA.  THE TERM "CONCESSION" WAS USED IN PLACE OF
"COUNTERPROPOSAL" AT THE SUGGESTION OF THE CHAIRMAN OF THE BOARD THAT
THE STATUTORY DEFINITION OF COLLECTIVE BARGAINING SHOULD CONFORM TO THE
MEANING OF GOOD FAITH BARGAINING AS UNDERSTOOD AT THE PASSAGE OF THE
WAGNER ACT.  S. REP. NO. 105, 80TH CONG., 1ST SESS. 24 (1947); HEARINGS
BEFORE HOUSE COMMITTEE ON EDUCATION AND LABOR ON AMENDMENT TO THE
NATIONAL LABOR RELATION ACT, 80TH CONG., 1ST SESS. 3174-3175 (1947). 
SEE H.R. REP. NO. 510, 80TH CONG., 1ST SESS. 34 (1947). 

FN15  THUS WE PUT ASIDE SUCH CASES AS LABOR BOARD V. NATIONAL
MARITIME UNION, 175 F.2D 686 (C.A.2D CIR. 1949)(BARGAINING FOR
DISCRIMINATORY HIRING HALL CLAUSE), WHERE A PARTY BARGAINED FOR A
CLAUSE VIOLATIVE OF AN EXPRESS PROVISION OF THE ACT. 

FN16  H.R. DOC. NO. 125, 81ST CONG., 1ST SESS. 3-10 (1949)(U.S. DEPT.
OF LABOR BULL.  NO. 908-12); COLLECTIVE BARGAINING CONTRACTS (B.N.A.
1941), 363-368; CLASSIFIED PROVISIONS OF THIRTY-SEVEN COLLECTIVE
BARGAINING AGREEMENTS FOR WAGE EARNERS IN THE IRON AND STEEL INDUSTRY
(AMERICAN IRON & STEEL INST.  1948), 68-73; TESTED CLAUSES FOR UNION
CONTRACTS (LABOR RELATIONS INST.  1945), 11-16; WELTY, LABOR CONTRACT
CLAUSES (1945), 76-82; HOEBRECKX, MANAGEMENT HANDBOOK FOR COLLECTIVE
BARGAINING (1947), 177-182; SMITH, LABOR LAW CASES AND MATERIALS
(1950), 1008-1011; INDUSTRIAL RELATIONS RESEARCH SERVICE STUDY NO. 1,
MANAGEMENT'S PREROGATIVES (1945), APP.; PACE, MANAGEMENT PREROGATIVES
DEFINED IN UNION CONTRACTS (CALIF.  INST.  TECH. 1945); TELLER,
MANAGEMENT FUNCTIONS UNDER COLLECTIVE BARGAINING (1947), 427-437 (23
OUT OF 53 COLLECTIVE BARGAINING AGREEMENTS EXAMINED BY THE AUTHOR
CONTAINED MANAGEMENT FUNCTIONS CLAUSES). 

WRITERS ADVOCATING INCLUSION OF DETAILED MANAGEMENT FUNCTIONS CLAUSES
IN COLLECTIVE BARGAINING AGREEMENTS URGE THE DESIRABILITY OF DEFINING
THE RESPECTIVE FUNCTIONS OF MANAGEMENT AND LABOR IN MATTERS SUCH AS
WORK SCHEDULING CONSISTENT WITH THE NEEDS OF THE PARTICULAR INDUSTRY. 
SEE COX AND DUNLOP, REGULATION OF COLLECTIVE BARGAINING BY THE NATIONAL
LABOR RELATIONS BOARD, 63 HARV. L. REV. 389 (1950); HILL AND HOOK,
MANAGEMENT AT THE BARGAINING TABLE (1945), 56-138; TELLER, MANAGEMENT
FUNCTIONS UNDER COLLECTIVE BARGAINING (1947), 114-116.  SEPARATE VIEWS
ON "MANAGEMENT'S RIGHT TO MANAGE" WERE PRESENTED BY THE LABOR AND
MANAGEMENT MEMBERS OF THE PRESIDENT'S NATIONAL LABOR-MANAGEMENT
CONFERENCE, NOVEMBER 5-30, 1945, U.S. DEPT OF LABOR BULL.  NO. 77
(1946), 56-62.    FN17  57 STAT. 163, 166 (1943). 

FN18  UNITED AIRCRAFT CORP., 18 WAR LAB.  REP.  9 (1944); MEAD CORP.,
8 WAR LAB.  REP.  471 (1943); HOSPITAL SUPPLY CO., 7 WAR LAB.  REP. 
526 (1943).  SEE ALSO MCQUAY-NORRIS MFG. CO., 28 WAR LAB.  REP.  211
(1945); TELLER, MANAGEMENT FUNCTIONS UNDER COLLECTIVE BARGAINING
(1947), 29-49. 

DISPUTES AS TO THE CONTENT OF MANAGEMENT FUNCTIONS CLAUSES HAVE ALSO
BEEN CONSIDERED BY THE PRESENT WAGE STABILIZATION BOARD, BASIC STEEL
INDUSTRY, 18 LAB.  ARB.  REP. 112 (1952)(RECOMMENDATION THAT PROPOSED
CHANGES IN CLAUSE BE REJECTED), AND BY A PRESIDENTIAL EMERGENCY BOARD,
NORTHWEST AIRLINES, INC., 5 LAB.  ARB.  REP. 71 (1946)(RECOMMENDATION
THAT CLAUSE BE INCORPORATED IN AGREEMENT). 

FN19  COMPARE EAST ALTON MFG. CO., 5 WAR LAB.  REP.  47
(1942)(ARBITRATION PROVISION ORDERED), WITH ATLAS POWDER CO., 5 WAR
LAB.  REP.  371 (1942)(ARBITRATION PROVISION DENIED). 

UNION OBJECTIONS TO A MANAGEMENT FUNCTIONS CLAUSE AS COVERING MATTERS
SUBJECT TO COLLECTIVE BARGAINING DID NOT DETER THE WAR LABOR BOARD FROM
ORDERING SUCH A CLAUSE WHERE DEEMED APPROPRIATE IN A PARTICULAR CASE. 
(CURTISS-WRIGHT CORP., 25 WAR LAB.  REP. 83, 114-115 (1945). 

FN20  THIS IS NOT THE CASE OF AN EMPLOYER REFUSING TO BARGAIN OVER AN
ISSUE ON THE ERRONEOUS THEORY THAT, AS A MATTER OF LAW, SUCH AN ISSUE
DID NOT INVOLVE A "CONDITION OF EMPLOYMENT" WITHIN THE MEANING OF THE
ACT.  COMPARE INLAND STEEL CO. V. LABOR BOARD, 170 F.2D 247 (C.A. 7TH
CIR. 1948)(PENSIONS); LABOR BOARD V. J.H. ALLISON & CO., 165 F.2D 766
(C.A. 6TH CIR. 1948)(MERIT WAGE INCREASES). 

FN21  NOTE 3, SUPRA.  SEE BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S.
383, 399 (1951). 

FN22  THE BOARD'S ARGUMENT WOULD SEEM TO PREVENT AN EMPLOYER FROM
BARGAINING FOR A NO-STRIKE" CLAUSE, COMMONLY FOUND IN LABOR AGREEMENTS,
REQUIRING A UNION TO FOREGO FOR THE DURATION OF THE CONTRACT THE RIGHT
TO STRIKE EXPRESSLY GRANTED BY SECTION 7 OF THE ACT.  HOWEVER, THE
BOARD HAS PERMITTED AN EMPLOYER TO BARGAIN IN GOOD FAITH FOR SUCH A
CLAUSE.  SHELL OIL CO., 77 N.L.R.B. 1306 (1948).  THIS RESULT IS
EXPLAINED BY REFERRING TO THE "SALUTARY OBJECTIVE" OF SUCH A CLAUSE. 
BETHLEHEM STEEL CO., 89 N.L.R.B. 341, 345 (1950). 

FN23  SEE LABOR BOARD V. CROMPTON MILLS, 337 U.S. 217, 226-227
(1949). 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

I DO NOT SEE HOW THIS CASE IS SOLVED BY TELLING THE NATIONAL LABOR
RELATIONS BOARD THAT SINCE SOME "MANAGEMENT FUNCTIONS" CLAUSES ARE
VALID (WHICH THE BOARD FREELY ADMITS), RESPONDENT WAS NOT GUILTY OF AN
UNFAIR LABOR PRACTICE IN THIS CASE.  THE RECORD IS REPLETE WITH
EVIDENCE THAT RESPONDENT INSISTED ON A CLAUSE WHICH WOULD CLASSIFY THE
CONTROL OVER CERTAIN CONDITIONS OF EMPLOYMENT AS A MANAGEMENT
PREROGATIVE, AND THAT THE INSISTENCE TOOK THE FORM OF A REFUSAL TO
REACH A SETTLEMENT UNLESS THE UNION ACCEPTED THE CLAUSE.  (FN1)  THE
COURT OF APPEALS AGREED THAT RESPONDENT WAS "STEADFAST" IN THIS
DEMAND.  THEREFORE, THIS CASE IS ONE WHERE THE EMPLOYER CAME INTO THE
BARGAINING ROOM WITH A DEMAND THAT CERTAIN TOPICS UPON WHICH IT HAD A
DUTY TO BARGAIN WERE TO BE REMOVED FROM THE AGENDA - THAT WAS THE PRICE
THE UNION HAD TO PAY TO GAIN A CONTRACT.  THERE IS ALL THE DIFFERENCE
BETWEEN THE HYPOTHETHICAL "MANAGEMENT FUNCTIONS" CLAUSES ENVISIONED BY
THE MAJORITY AND THIS "MANAGEMENT FUNCTIONS" CLAUSE AS THERE IS BETWEEN
WAIVER AND COERCION.  NO ONE SUGGESTS THAT AN EMPLOYER IS GUILTY OF AN
UNFAIR LABOR PRACTICE WHEN IT PROPOSES THAT IT BE GIVEN UNILATERAL
CONTROL OVER CERTAIN WORKING CONDITIONS AND THE UNION ACCEPTS THE
PROPOSAL IN RETURN FOR VARIOUS OTHER BENEFITS.  BUT WHERE, AS HERE, THE
EMPLOYER TELLS THE UNION THAT THE ONLY WAY TO OBTAIN A CONTRACT AS TO
WAGES IS TO AGREE NOT TO BARGAIN ABOUT CERTAIN OTHER WORKING
CONDITIONS, THE EMPLOYER HAS REFUSED TO BARGAIN ABOUT THOSE OTHER
WORKING CONDITIONS.  THERE IS MORE THAN A SEMANTIC DIFFERENCE BETWEEN A
PROPOSAL THAT THE UNION WAIVE CERTAIN RIGHTS AND A DEMAND THAT THE
UNION GIVE UP THOSE RIGHTS AS A CONDITION PRECEDENT TO ENJOYING OTHER
RIGHTS.  (FN2) 

I NEED NOT AND DO NOT TAKE ISSUE WITH THE COURT OF APPEALS'
CONCLUSION THAT THERE WAS NO ABSENCE OF GOOD FAITH.  WHERE THERE IS A
REFUSAL TO BARGAIN, THE ACT DOES NOT REQUIRE AN INQUIRY AS TO WHETHER
THAT REFUSAL WAS IN GOOD FAITH OR BAD FAITH.  (FN3)  THE DUTY TO
BARGAIN ABOUT CERTAIN SUBJECTS IS MADE ABSOLUTE BY THE ACT.  (FN4)  THE
MAJORITY SEEMS TO SUGGEST THAT AN EMPLOYER COULD BE FOUND GUILTY OF BAD
FAITH IF IT USED A "MANAGEMENT FUNCTIONS" CLAUSE TO CLOSE OFF
BARGAINING ABOUT ALL TOPICS OF DISCUSSION.  WHETHER THE EMPLOYER CLOSES
OFF ALL BARGAINING OR, AS IN THIS CASE, ONLY A CERTAIN AREA OF
BARGAINING, HE HAS REFUSED TO BARGAIN AS TO WHATEVER HE HAS CLOSED OFF,
AND ANY DISCUSSION OF HIS GOOD FAITH IS POINTLESS. 

THAT PORTION OF SEC. 8(D) OF THE ACT WHICH DECLARES THAT AN EMPLOYER
NEED NOT AGREE TO A PROPOSAL OR MAKE CONCESSIONS DOES NOT DISPOSE OF
THIS CASE.  CERTAINLY THE BOARD LACKS POWER TO COMPEL CONCESSIONS AS TO
THE SUBSTANTIVE TERMS OF LABOR AGREEMENTS.  BUT THE BOARD IN THIS CASE
WAS SEEKING TO COMPEL THE EMPLOYER TO BARGAIN ABOUT SUBJECTS PROPERLY
WITHIN THE SCOPE OF COLLECTIVE BARGAINING.   (FN5)  THAT THE EMPLOYER
HAS SUCH A DUTY TO BARGAIN AND THAT THE BOARD IS EMPOWERED TO ENFORCE
THE DUTY IS CLEAR. 

AN EMPLOYER MAY NOT STAKE OUT AN AREA WHICH IS A PROPER SUBJECT FOR
BARGAINING AND SAY, "AS TO THIS WE WILL NOT BARGAIN."  TO DO SO IS A
PLAIN REFUSAL TO BARGAIN IN VIOLATION OF SECTION 8(A)(5) OF THE ACT. 
IF EMPLOYEES' BARGAINING RIGHTS CAN BE CUT AWAY SO EASILY, THEY ARE
INDEED ILLUSORY.  I WOULD REVERSE. 

FN1 A MEMBER OF RESPONDENT'S NEGOTIATING COMMITTEE STATED THAT THE
COMMITTEE "HAD GIVEN CONSIDERABLE THOUGHT TO THE CHARACTER OF
PREROGATIVE THAT, IN OUR OPINION, THE COMPANY WAS ENTITLED TO MAINTAIN
FOR ITS MANAGEMENT, AS WELL AS CONSIDERABLE THOUGHT TO THE CHARACTER OF
SAFEGUARD WHICH WOULD MAKE THE RETENTION OF SUCH PREROGATIVES  ...  OF
VALUE AND WORTH TO THE COMPANY, AND INVULNERABLE TO ATTACK  ...  .  WE
ORALLY STATED TO THE UNION THAT THAT WAS GOING TO BE THE POSITION OF
THE COMPANY  ...  ."  (R. II, P. 32). 

A UNION NEGOTIATOR TESTIFIED AS FOLLOWS: 

"Q.  NOW, AS I UNDERSTAND YOUR TESTIMONY, YOU HAVE SAID THAT COMPANY
SAID YOU WOULD HAVE TO AGREE  ...  . 

"A.  IT WAS THE CONDITION OF A CONTRACT. 

"Q.  NOW, HOW OFTEN, IF IT WAS MORE THAN ONCE, DID THE COMPANY STATE
THAT OR SOMETHING SIMILAR TO THAT  ...  DID THEY ONLY SAY IT ONCE OR
DID THEY STATE IT MORE THAN ONCE? 

"A.  I CAN'T TESTIFY AS TO THE NUMBER OF TIMES.  I WILL SAY THEY SAID
IT SEVERAL TIMES. 

     *         *        *         *         * 

"A.  TO GET A CONTRACT, AN AGREEMENT MUST BE REACHED AND MUST BE MADE
BY THE UNION TO INCLUDE ARTICLE II-A AS THE COMPANY'S PREROGATIVE
CLAUSE."  (R. III, PP. 60-61.) 

THE SAME COMPANY NEGOTIATOR TOLD THE UNION THAT THE CLAUSE IN
QUESTION WAS THE "MEAT OF THE CONTRACT" AND THAT IF THE UNION ACCEPTED
IT A CONTRACT COULD BE OBTAINED IN "SHORT ORDER."  (R. III, P. 60.) 

FN2  THERE IS SIMILARLY A DIFFERENCE BETWEEN A UNION VOLUNTARILY
DISBANDING, AND THE EMPLOYER INSISTING THAT IT DISBAND AS A CONDITION
OF GRANTING A WAGE INCREASE.  CF.  MCQUAY-NORRIS MFG. CO. V. LABOR
BOARD, 116 F.2D 748. 

FN3  THE ONLY EXCEPTION IS THAT AN EMPLOYER IN GOOD FAITH CAN
CHALLENGE THE MAJORITY STATUS OF THE BARGAINING REPRESENTATIVE AND
REQUEST PROOF THAT IT DOES IN FACT HAVE SUCH STATUS.  CF. JOY SILK
MILLS, INC. V. LABOR BOARD, 87 U.S. APP. D.C. 360, 369, 185 F.2D 732,
741. 

FN4  J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332; H.J. HEINZ CO. V.
LABOR BOARD, 311 U.S. 514, 525. 

FN5  NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350, 360; INLAND
STEEL CO. V. LABOR BOARD, 170 F.2D 247, 252; LABOR BOARD V. BACHELDER,
120 F.2D 574, 577. 
..END :









PENNSYLVANIA WATER AND POWER CO. V. FEDERAL POWER COMMISSION 343 U.S.
414 


NO. 428.  ARGUED APRIL 3-4, 1952 - DECIDED MAY 26, 1952 - 89 U.S. APP.
D.C. 235, 193 F.2D 230, AFFIRMED. 


1.  PETITIONER POWER COMPANY OWNS A HYDROELECTRIC PLANT ON A NAVIGABLE
STREAM AND HOLDS A LICENSE FROM THE FEDERAL POWER COMMISSION UNDER PART
I OF THE FEDERAL POWER ACT.  IT ALSO SELLS POWER AT WHOLESALE IN
INTERSTATE COMMERCE.  THE COMMISSION FOUND ON SUBSTANTIAL EVIDENCE THAT
THE STATES INVOLVED WERE "UNABLE TO AGREE" ON SERVICES TO BE RENDERED
AND RATES TO BE CHARGED WITHIN THE MEANING OF SEC. 20 OF PART I OF THE
ACT.  HELD: 

(A)  THE FACT THAT PETITIONER IS A LICENSEE AND SUBJECT TO REGULATION
AS SUCH UNDER PART I DOES NOT PRECLUDE ITS REGULATION UNDER PART II AS
A PUBLIC UTILITY ENGAGED IN INTERSTATE COMMERCE.  PP. 418-419. 

(B)  THE COMMISSION HAVING FOUND ON SUBSTANTIAL EVIDENCE THAT THE
STATES WERE "UNABLE TO AGREE" ON THE SERVICES TO BE RENDERED AND RATES
TO BE CHARGED, WITHIN THE MEANING OF SEC. 20, PETITIONER IS ALSO
SUBJECT TO REGULATION UNDER PART I. P. 419. 

2.  TWO POWER COMPANIES HAVE HYDROELECTRIC PLANTS ON THE SUSQUEHANNA
RIVER AND A THIRD OPERATES STEAM-ELECTRIC PLANTS IN MARYLAND.  UNDER A
CONTRACT BETWEEN THEM, A COMPLETE INTEGRATION AND POOLING OF POWER
PRODUCING AND TRANSMITTING FACILITIES HAS BEEN ACHIEVED AND POWER FLOWS
FROM MARYLAND INTO PENNSYLVANIA AND VICE VERSA, DEPENDING UPON THE FLOW
OF WATER IN THE SUSQUEHANNA RIVER.  THE FEDERAL POWER COMMISSION FOUND
THAT THE COMBINED OPERATIONS OF THE SYSTEM ARE COMPLETELY INTERSTATE IN
CHARACTER, NOTWITHSTANDING THE FACT THAT AT SOME PARTICULAR TIMES
TRANSACTIONS MAY INVOLVE ENERGY NEVER CROSSING A STATE BOUNDARY.  HELD:
THE FEDERAL POWER COMMISSION HAS COMPLETE AUTHORITY TO REGULATE SALES
AT WHOLESALE OF ALL OF THIS COMMINGLED POWER.  PP. 419-420. 

3.  IN PRIVATE LITIGATION, THE ENTIRE CONTRACT WAS HELD UNENFORCEABLE
BECAUSE CERTAIN OF ITS PROVISIONS VIOLATED THE FEDERAL ANTITRUST LAWS
AND THE CORPORATION LAWS OF PENNSYLVANIA.  SUBSEQUENTLY, THE FEDERAL
POWER COMMISSION ISSUED AN ORDER FIXING PETITIONER'S RATES, WHICH HAD
THE EFFECT OF REQUIRING A CONTINUATION OF THE INTEGRATION AND POOLING
OF THE POWER PRODUCING AND TRANSMITTING FACILITIES OF THE THREE
COMPANIES.  HELD:  THE ORDER IS VALID.  PP. 421-424. 

(A)  PETITIONER'S DUTY TO CONTINUE ITS COORDINATED OPERATIONS WITH
THE MARYLAND COMPANY SPRINGS FROM THE COMMISSION'S STATUTORY AUTHORITY,
NOT FROM THE LAW OF PRIVATE CONTRACTS.  PP. 421-422. 

(B)  THE ACT GIVES THE COMMISSION AMPLE AUTHORITY TO ORDER THESE
COMPANIES TO CONTINUE THEIR LONG-EXISTING OPERATIONAL "PRACTICE" OF
INTEGRATING THEIR POWER OUTPUT; AND IN SO DOING THE COMMISSION WAS
FURTHERING THE EXPRESSLY DECLARED POLICY OF THE ACT.  PP. 422-424. 

4.  PETITIONER HAS PRESENTED NOTHING TO SHOW THAT THE END RESULT OF
THE RATE REDUCTION ORDERED BY THE COMMISSION IS UNJUST OR
UNREASONABLE.  P. 424. 

PENNSYLVANIA WATER & POWER CO. ET AL. V. FEDERAL POWER COMMISSION ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 429, PENNSYLVANIA PUBLIC UTILITY COMMISSION V.
FEDERAL POWER COMMISSION, ALSO ON CERTIORARI TO THE SAME COURT. 

THE FEDERAL POWER COMMISSION FOUND THE RATES CHARGED BY PETITIONER
FOR THE SALE OF ELECTRIC POWER AT WHOLESALE IN INTERSTATE COMMERCE
UNREASONABLE AND ORDERED A REDUCTION.  THE COURT OF APPEALS AFFIRMED. 
89 U.S. APP. D.C. 235, 193 F.2D 230.  THIS COURT GRANTED CERTIORARI. 
342 U.S. 931.  AFFIRMED, P. 424. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1944 THE MARYLAND PUBLIC SERVICE COMMISSION, THE MAYOR AND COUNCIL
OF THE CITY OF BALTIMORE, THE BALTIMORE COUNTY COMMISSIONERS, AND
SEVERAL PRIVATE PURCHASERS OF ELECTRIC POWER DECIDED TO ASK THE FEDERAL
POWER COMMISSION FOR HELP.  THEY REQUESTED THE COMMISSION TO
INVESTIGATE ALLEGEDLY "EXCESSIVE RATES" THE PENNSYLVANIA WATER & POWER
COMPANY (PENN WATER) (FN1) WAS CHARGING CONSOLIDATED GAS ELECTRIC LIGHT
AND POWER COMPANY OF BALTIMORE (CONSOLIDATED).  THE MARYLAND INTERESTS
WANTED THE FEDERAL POWER COMMISSION TO REDUCE THESE CHARGES SO THAT THE
STATE COMMISSION COULD LOWER CONSOLIDATED'S RATES TO ITS MARYLAND
CUSTOMERS.  THE FEDERAL COMMISSION HELD MANY MONTHS OF EXTENSIVE
HEARINGS AND FOUND THAT PENN WATER HAD CHARGED ITS CUSTOMERS ALMOST
THREE TIMES WHAT IT SHOULD HAVE IN 1946.  IN THAT YEAR IT HAD A NET
OPERATING INCOME OF $3,477,408, AS CONTRASTED WITH $1,300,672 WHICH THE
COMMISSION FOUND WOULD HAVE BEEN A FAIR RETURN (5 1/4%) ON A FAIR RATE
BASE ($24,774,712), ALLOWING PENN WATER "ABOUT 8.64% FOR COMMON STOCK
AND SURPLUS, WHICH IS ADEQUATE."  (FN2)  THE COMMISSION ORDERED PENN
WATER TO FILE A NEW SCHEDULE OF RATES AND CHARGES TO BRING ABOUT THE
REDUCTIONS REQUIRED. 

IN SUBSEQUENT ORDERS THE COMMISSION DENIED PENN WATER'S APPLICATIONS
FOR REHEARING, REJECTED AS INSUFFICIENT NEW RATE SCHEDULES FILED BY
PENN WATER, AND ITSELF PRESCRIBED THE RATE SCHEDULES WHICH PENN WATER
HERE SEEKS TO AVOID.  ON REVIEW THE COURT OF APPEALS GAVE FULL
CONSIDERATION TO PENN WATER'S MULTITUDINOUS CHALLENGES AND APPROVED THE
COMMISSION'S ACTION, ONE JUDGE DISSENTING.  89 U.S. APP. D.C. 235, 193
F.2D 230. 

MOST OF THE NUMEROUS QUESTIONS PRESENTED AND DECIDED BY THE
COMMISSION AND THE COURT OF APPEALS ARE NOT PRESENTED HERE BY THE
PETITIONS FOR CERTIORARI WHICH WE GRANTED.  (FN3)  WE ARE NOT CALLED ON
TO REVIEW THE ADEQUACY OF THE EVIDENCE TO SUPPORT THE COMMISSION'S
FINDINGS AS TO A FAIR RATE BASE, A FAIR RATE OF RETURN, OR ANY OTHER
FINDINGS EXCEPT INSOFAR AS OUR DECISION OF SEVERAL RATHER GENERAL
QUESTIONS PRESENTED MIGHT INDIRECTLY UNDERMINE SOME OF THEM.  THE
QUESTIONS WE MUST DECIDE ARE IN GENERAL THESE: 

(1)  DOES THE FACT THAT PENN WATER IS A LICENSEE UNDER PART I OF THE
FEDERAL POWER ACT, (FN4) AND THEREFORE SUBJECT TO REGULATION UNDER THAT
PART, PRECLUDE ITS REGULATION UNDER PART II OF THE ACT AS A PUBLIC
UTILITY ENGAGED IN INTERSTATE COMMERCE? 

(2)  ASSUMING THAT PENN WATER CAN BE SUBJECTED TO REGULATION UNDER
BOTH PARTS OF THE ACT, WERE THE COMMISSION AND THE COURT OF APPEALS
CORRECT IN HOLDING THAT ALL OF PENN WATER'S SALES AT WHOLESALE WERE "IN
INTERSTATE COMMERCE" WITHIN THE MEANING OF PART II OF THE ACT? 

(3)  DOES THE COMMISSION'S RATE REDUCTION ACTION COMPEL THE
CONTINUANCE OF OR IS IT IMPROPERLY BASED UPON CONTRACTUAL AGREEMENTS
BETWEEN PENN WATER AND CONSOLIDATED WHICH PENN WATER CANNOT CARRY OUT
WITHOUT VIOLATING THE FEDERAL ANTITRUST LAWS OR THE LAWS OF
PENNSYLVANIA FORBIDDING SURRENDER BY PENNSYLVANIA CORPORATIONS OF THEIR
CORPORATE INDEPENDENCE? 

                     I. 

ALTHOUGH PENN WATER IS THE TYPE OF "PUBLIC UTILITY" SUBJECT TO
REGULATION UNDER PART II OF THE ACT, IT ARGUES THAT SINCE IT IS SUBJECT
TO REGULATION UNDER PART I AS A LICENSEE, IT CANNOT BE REGULATED UNDER
PART II AS A PUBLIC UTILITY.  WE CANNOT AGREE.  WITH SOME EXPRESS
EXCEPTIONS NOT HERE RELEVANT, THE LANGUAGE OF PART II OF THE ACT MAKES
ALL "PUBLIC UTILITIES" SUBJECT TO THE REGULATION IT PRESCRIBES.  NO
REASON HAS BEEN ADVANCED WHICH COULD POSSIBLY JUSTIFY A JUDICIAL
EXCEPTION TO THIS STATUTORY COMMAND.  A MAJOR PURPOSE OF THE WHOLE ACT
IS TO PROTECT POWER CONSUMERS AGAINST EXCESSIVE PRICES.  (FN5)  PART I
LEAVES REGULATION TO THE STATES UNDER SOME CIRCUMSTANCES.  BUT, UNDER
SEC. 20 OF PART I THE FEDERAL GOVERNMENT IS TO PROTECT THE CONSUMER IF
A STATE REGULATORY BODY DOES NOT EXIST OR THE "STATES ARE UNABLE TO
AGREE  ...  ON THE SERVICES TO BE RENDERED OR ON THE RATES OR CHARGES
OF PAYMENT THEREFOR  ...  ."  PART II PROCEEDS ON THE ASSUMPTION THAT
REGULATION OF PUBLIC UTILITIES TRANSMITTING AND SELLING POWER AT
WHOLESALE IN INTERSTATE COMMERCE IS A MATTER WHICH MUST BE ACCOMPLISHED
BY THE FEDERAL GOVERNMENT.  PART II THEREFORE PROVIDES FOR A MORE
EXPANSIVE FEDERAL REGULATION THAN THAT AUTHORIZED UNDER PART I. IT
WOULD HINDER, NOT HELP, THE POWER ACT'S PROGRAM IF WE SHOULD IMPLIEDLY
EXEMPT PART I LICENSEES FROM THE MORE EXPANSIVE PART II REGULATION.  IT
MAY BE POSSIBLE THAT SOME FUTURE CASES WILL DEVELOP MINOR
INCONSISTENCIES IN THE ADMINISTRATION OF THE TWO PARTS.  TODAY'S CASE,
HOWEVER, IS NOT SUCH A ONE.  WE HOLD THAT PENN WATER IS SUBJECT TO
REGULATION UNDER PART II OF THE ACT.  IT IS ALSO SUBJECT TO PART I
REGULATION SINCE THE COMMISSION FOUND ON SUBSTANTIAL EVIDENCE, AS THE
COURT BELOW HELD, THAT THE STATES WERE "UNABLE TO AGREE" WITHIN THE
MEANING OF SEC. 20 OF PART I OF THE ACT. 

     II. 

IT IS CONTENDED THAT SOME OF PENN WATER'S SALES AT WHOLESALE WERE NOT
"IN INTERSTATE COMMERCE" AND THEREFORE WERE NOT SUBJECT TO FEDERAL
REGULATION UNDER PART II.  THIS CONTENTION REFERS TO SALES MADE BY PENN
WATER IN PENNSYLVANIA TO PENNSYLVANIA CUSTOMERS.  THESE ARE ALLEGED TO
INCLUDE ABOUT 83% OF PENNSYLVANIA GENERATED POWER.  BECAUSE OF THE
FOLLOWING CIRCUMSTANCES WE AGREE WITH THE COMMISSION AND THE COURT OF
APPEALS THAT THESE SALES WERE "IN INTERSTATE COMMERCE." 

PENN WATER AND SAFE HARBOR WATER POWER CORPORATION (SAFE HARBOR) HAVE
HYDROELECTRIC PLANTS ON THE SUSQUEHANNA RIVER IN PENNSYLVANIA. 
CONSOLIDATED OPERATES LARGE STEAM-GENERATING PLANTS IN BALTIMORE.  THE
FLOW OF THE SUSQUEHANNA VARIES GREATLY EVEN FROM DAY TO DAY.  DURING
PERIODS OF LOW FLOW, PENN WATER RECEIVES STEAM-GENERATED ENERGY FROM
BALTIMORE IN ORDER TO MEET ITS POWER SUPPLY COMMITMENTS.  CONVERSELY,
DURING PERIODS OF HIGH FLOW, CONSOLIDATED IS ABLE TO RECEIVE THE
CHEAPER HYDROELECTRIC POWER FROM PENN WATER AND SAFE HARBOR.  FOR MANY
YEARS PENN WATER, CONSOLIDATED, AND SAFE HARBOR HAVE BEEN OPERATING
UNDER CONTRACTS FOR THE COORDINATED SALE AND DISTRIBUTION OF ELECTRIC
POWER IN MARYLAND AND PENNSYLVANIA.  A COMPLETE INTEGRATION AND POOLING
OF THE POWER PRODUCING AND TRANSMITTING FACILITIES OF THE THREE
COMPANIES WAS THUS ACHIEVED.  WITH REFERENCE TO THIS COORDINATED SYSTEM
OF PRODUCTION AND DISTRIBUTION, THE COMMISSION SAID: 

"THE CENTRAL FACT DISCLOSED BY THE RECORD ABOUT PENN WATER'S SALES IN
PENNSYLVANIA IS THAT THEY ARE NOT SALES OF THE OUTPUT OF PENN WATER'S
OWN PLANT, BUT SALES OF OUTPUT OF THE INTEGRATED AND COORDINATED
INTERSTATE ELECTRIC SYSTEM OF WHICH PENN WATER'S FACILITIES ARE AN
INTEGRAL PART  ...  .

"IN THIS MANNER ENERGY CROSSING THE STATE BOUNDARY, WITH OTHER SYSTEM
ENERGY, IS USED TO FULFILL SYSTEM REQUIREMENTS.  THERE RESULT TIMES
WHEN SYSTEM ENERGY GENERATED IN PENNSYLVANIA IS USED, MIXED OR UNMIXED,
IN MEETING SYSTEM REQUIREMENTS IN MARYLAND.  SIMILARLY, THERE ARE
OCCASIONS WHEN SYSTEM ENERGY FROM MARYLAND IS USED, MIXED OR UNMIXED,
IN MEETING SYSTEM REQUIREMENTS IN PENNSYLVANIA.  ENERGY FLOWS IN,
ACROSS, AND OUT OF THE SYSTEM TRANSMISSION NETWORK AS THE NEEDS OF THE
INTERCONNECTED MEMBERS DEVELOP FROM MINUTE TO MINUTE AND DAY TO DAY. 

"IT IS ACCORDINGLY EVIDENT THAT THE OPERATIONS OF THE UNIFIED SYSTEM
ENTERPRISE ARE COMPLETELY INTERSTATE IN CHARACTER, NOTWITHSTANDING THE
FACT THAT SYSTEM ENERGY TRANSACTIONS AT SOME PARTICULAR TIMES MAY
INVOLVE ENERGY NEVER CROSSING THE STATE BOUNDARY."  8 F.P.C. 1, 12,
15. 

WE HOLD THAT THE FEDERAL POWER COMMISSION HAS COMPLETE AUTHORITY TO
REGULATE ALL OF THIS COMMINGLED POWER FLOW.  (FN6)  THE COMMISSION'S
POWER DOES NOT VARY WITH THE RISE AND FALL OF THE SUSQUEHANNA RIVER. 

                                      III. 

PENN WATER CONTENDS THAT THE COMMISSION'S ORDERS IMPROPERLY REQUIRE
IT TO CONTINUE PERFORMING AN ILLEGAL CONTRACT AND THAT CONTINUED
PERFORMANCE OF THIS CONTRACT IS THE BASIS FOR SOME OF THE COMMISSION'S
FINDINGS.  THIS CONTRACT ALLEGEDLY REQUIRES PENN WATER TO SUBJECT THE
MANAGEMENT OF ITS BUSINESS AFFAIRS TO THE DOMINATION OF CONSOLIDATED
AND FOR THIS REASON VIOLATES THE FEDERAL ANTITRUST LAWS AND THE
CORPORATION LAWS OF PENNSYLVANIA UNDER WHICH PENN WATER IS
INCORPORATED.  IN PRIVATE LITIGATION, THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT HAS AGREED WITH PENN WATER THAT CERTAIN PROVISIONS OF
THE CONTRACT ARE ILLEGAL FOR THE REASONS STATED.  VIEWING THESE
PROVISIONS AS INSEPARABLE, THAT COURT HELD THE ENTIRE CONTRACT
UNENFORCEABLE.  (FN7) 

WE NEED NOT NOW DECIDE THE QUESTION MUCH ARGUED HERE CONCERNING WHAT,
IF ANY, POWER THE COMMISSION HAS TO RELY ON OR TO COMPEL PARTIES TO
CARRY OUT PRIVATE CONTRACTS WHICH WOULD OTHERWISE BE ILLEGAL; THE
COMMISSION HAS NOT ATTEMPTED TO EXERCISE SUCH POWER IN THIS CASE.  IT
IS TRUE THAT PENN WATER MUST CONTINUE TO DO SOME OF THE THINGS IT USED
TO DO IN COMPLIANCE WITH THE PENN WATER-CONSOLIDATED CONTRACT.  FOR
UNDER THE PRESENT SCHEDULES PRESCRIBED BY THE COMMISSION'S ORDER PENN
WATER MUST CONTINUE TO BUY, SELL, AND TRANSMIT POWER IN THE SAME
COORDINATED MANNER IN WHICH IT AND CONSOLIDATED HAVE BEEN FUNCTIONING
FOR MORE THAN TWENTY YEARS.  BUT THE COMMISSION'S ORDER, AS CONSTRUED
BY THE COMMISSION, BY THE COURT OF APPEALS AND BY US, NEITHER EXPRESSLY
NOR IMPLIEDLY REQUIRES PENN WATER TO YIELD TO ANY CONTRACTUAL TERMS
SUBJECTING IT TO THE CONTROL OF CONSOLIDATED.  IN THE HIGHLY UNLIKELY
EVENT THAT PENN WATER'S MANAGERIAL FREEDOM IS EVER THREATENED BY SUCH
AN ORDER, IT WILL BE TIME ENOUGH TO CONSIDER ITS VALIDITY.  TO THE
EXTENT THAT PENN WATER IS BEING CONTROLLED, IT IS BY THE COMMISSION,
ACTING UNDER STATUTORY AUTHORITY, NOT BY CONSOLIDATED, ACTING UNDER THE
AUTHORITY OF PRIVATE CONTRACT TERMS "LEGALIZED" BY THE COMMISSION.  THE
DUTY OF PENN WATER TO CONTINUE ITS COORDINATED OPERATIONS WITH
CONSOLIDATED SPRINGS FROM THE COMMISSION'S AUTHORITY, NOT FROM THE LAW
OF PRIVATE CONTRACTS. 

NOR HAS THE COMMISSION PREMISED ANY OF ITS FINDINGS UPON THE ASSUMED
EXISTENCE AND CONTINUATION OF THIS CONTRACT.  PENN WATER FIRST MADE
THIS CONTENTION TO THE COMMISSION IN SEEKING A REHEARING OF THE
COMMISSION'S ORDER DIRECTING A REDUCTION IN ITS RATES.  AT THAT TIME
THE COMMISSION FULLY RE-EXAMINED ITS FORMER OPINION, FINDINGS AND
ORDERS, MODIFIED SOME AND REAFFIRMED AND STRENGTHENED OTHERS, AND
EXPRESSLY STATES THAT THE VALIDITY OF ITS ORDER AND WAS NOT DEPENDENT
UPON THE LEGALITY OF THE CONTRACT.  IT SAID:  "IF THERE ARE QUESTIONS
AS TO LEGALITY OF THE FOUNDATION CONTRACTS WHICH ARE IN LITIGATION, AS
RESPONDENTS' APPLICATION FOR REHEARING INDICATES, THE VALIDITY OF OUR
ORDER IS NOT DEPENDENT UPON THE DECISION OF THOSE QUESTIONS."  8 F.P.C.
170, 175.  WE AGREE WITH THE COURT OF APPEALS THAT NEITHER THE ORDER
NOR THE FINDINGS WERE PREMISED ON THE CONTINUATION OF THE PENN WATER
CONSOLIDATED CONTRACT. 

THE ACT GIVES THE COMMISSION AMPLE STATUTORY POWER TO ORDER PENN WATER
AND CONSOLIDATED TO CONTINUE THEIR LONG-EXISTING OPERATIONAL "PRACTICE"
OF INTEGRATING THEIR POWER OUTPUT.  SECTION 206 PROVIDES THAT "WHENEVER
THE COMMISSION, AFTER A HEARING  ...  SHALL FIND THAT ANY RATE  ...  IS
UNJUST, UNREASONABLE  ...  THE COMMISSION SHALL DETERMINE THE JUST AND
REASONABLE RATE,  ... PRACTICE, OR CONTRACT TO BE THEREAFTER OBSERVED
AND IN FORCE, AND SHALL FIX THE SAME BY ORDER."  IN ORDERING SUCH
"PRACTICE" CONTINUED, THE COMMISSION WAS FURTHERING THE EXPRESSLY
DECLARED POLICY OF THE ACT.  MOREOVER, THE COMMISSION FOUND HERE READY
MADE BY PRIOR CONTRACTUAL ARRANGEMENTS A REGIONAL COORDINATION OF POWER
FACILITIES OF PRECISELY THE TYPE WHICH THE COMMISSION IS AUTHORIZED TO
REQUIRE UNDER SEC. 202.  SECTION 202(A) DECLARES: 

"FOR THE PURPOSE OF ASSURING AN ABUNDANT SUPPLY OF ELECTRIC ENERGY
THROUGHOUT THE UNITED STATES WITH THE GREATEST POSSIBLE ECONOMY AND
WITH REGARD TO THE PROPER UTILIZATION AND CONSERVATION OF NATURAL
RESOURCES, THE COMMISSION IS EMPOWERED AND DIRECTED TO DIVIDE THE
COUNTRY INTO REGIONAL DISTRICTS FOR THE VOLUNTARY INTERCONNECTION AND
COORDINATION OF FACILITIES FOR THE GENERATION, TRANSMISSION, AND SALE
OF ELECTRIC ENERGY,  ...  ." 

THE COMMISSION WAS FURTHER DIRECTED IN THAT SECTION TO "PROMOTE AND
ENCOURAGE" SUCH INTERCONNECTION AND COORDINATION.  UNDER CERTAIN
CIRCUMSTANCES SEC. 202(B) AUTHORIZES THE COMMISSION TO COMPEL
INTERCONNECTION AND COORDINATION IN THE PUBLIC INTEREST, AND TO
"PRESCRIBE THE TERMS AND CONDITIONS OF THE ARRANGEMENT TO BE MADE
BETWEEN THE PERSONS AFFECTED BY ANY SUCH ORDER, INCLUDING THE
APPORTIONMENT OF COST BETWEEN THEM AND THE COMPENSATION OR
REIMBURSEMENT REASONABLY DUE TO ANY OF THEM."    IF PENN WATER WISHES
TO DISCONTINUE SOME OR ALL OF THE SERVICES IT HAS RENDERED FOR THE PAST
TWENTY YEARS, THE ACT, AS THE COMMISSION POINTED OUT, OPENS UP A WAY
PROVIDED PENN WATER CAN PROVE THAT ITS WISHES ARE CONSISTENT WITH THE
PUBLIC INTEREST.  SHORTLY AFTER PART II OF THE POWER ACT WAS PASSED IN
1935, PENN WATER, AS REQUIRED BY SEC. 205(C), FILED WITH THE COMMISSION
THE CONTRACT HERE ATTACKED AND THEN DESIGNATED BY THE COMMISSION AS
"PENN WATER'S FEDERAL POWER COMMISSION RATE SCHEDULE NO. 1."  SECTION
205(D) PROVIDES THAT "NO CHANGE SHALL BE MADE BY ANY PUBLIC UTILITY IN
ANY SUCH  ...  SERVICE  ...  OR CONTRACT RELATING THERETO, EXCEPT AFTER
THIRTY DAYS' NOTICE TO THE COMMISSION AND TO THE PUBLIC."  HERE INSTEAD
OF FOLLOWING THE PROCEDURE FOR CHANGING EXISTING SERVICES AND PRACTICES
- A PROCEDURE WHICH THE CONGRESS HAS AUTHORIZED AND WHICH THE
COMMISSION HAS SUPPLEMENTED BY RULES OF ITS OWN - THE COMPANY HAS
RATHER TRIED TO UTILIZE A VIOLATION OF THE SHERMAN ACT SO AS TO NULLIFY
A RATE-REDUCTION ORDER. 

NOTHING WHATEVER HAS BEEN PRESENTED BY PENN WATER TO SHOW THAT THE
END RESULT OF THIS RATE REDUCTION IS UNJUST OR UNREASONABLE.  CF. POWER
COMM'N V. HOPE GAS CO., 320 U.S. 591, 603.  AFFIRMED. 

FN1  PENN WATER, AS USED IN THIS OPINION, REFERS TO BOTH PENNSYLVANIA
WATER & POWER COMPANY AND ITS WHOLLY OWNED AFFILIATE, SUSQUEHANNA
TRANSMISSION COMPANY OF MARYLAND. 

FN2  THERE WAS EVIDENCE BEFORE THE COMMISSION THAT FROM 1936 THROUGH
1945 PENN WATER'S DIVIDENDS ON ITS COMMON STOCK HAD NEVER BEEN LESS
THAN 25% OF THE CASH PAID IN ON THE STOCK. 

FN3  342 U.S. 931. 

FN4  41 STAT. 1063, 49 STAT. 838, 16 U.S.C. SEC. 791A ET SEQ. 

FN5  SECTION 20 OF PART I PROVIDES THAT "THE RATES CHARGED AND THE
SERVICE RENDERED  ... SHALL BE REASONABLE, NONDISCRIMINATORY, AND JUST
TO THE CUSTOMER  ...  ."  SECTION 205(A) OF PART II PROVIDES THAT "ALL
RATES AND CHARGES  ...  SHALL BE JUST AND REASONABLE  ...  ." 

FN6  SEE ALSO SAFE HARBOR WATER POWER CORP. V. FEDERAL POWER
COMMISSION, 179 F.2D 179, AFFIRMING 5 F.P.C. 221. 

FN7  PENNSYLVANIA W.&P. CO. V. CONSOLIDATED GAS, E.L.&P. CO., 184
F.2D 552.  SEE ALSO CONSOLIDATED GAS, E.L.&P. CO. V. PENNSYLVANIA W.&P.
CO., 194 F.2D 89. 

MR. JUSTICE FRANKFURTER, NOT HAVING HEARD THE ARGUMENT, OWING TO
ILLNESS, TOOK NO PART IN THE DISPOSITION OF THESE CASES. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED CONCURS, DISSENTING. 

THERE IS MORE TO THESE CASES THAN MEETS THE EYE.  ON THE SURFACE THEY
SEEM TO BE ONLY AN ILLUSTRATION OF THE EXPLOITATION OF THE PUBLIC BY A
UTILITY THROUGH THE CHARGING OF EXCESSIVE RATES.  BUT FAR GREATER
ISSUES LURK IN THE RECORD.  THERE IS LAWLESS CONDUCT THAT OVERSHADOWS
THE EVILS OF EXTORTIONATE RATES.  IT IS LAWLESS CONDUCT THAT VIOLATES
THE SHERMAN ACT.  IT IMPLICATES NOT ONLY THE UTILITIES BUT THE
REGULATORY AGENCY AS WELL.  THE DESIRE TO REDUCE EXCESSIVE RATES SHOULD
NOT BLIND US TO THE GREATER EVIL.  IT IS FAR BETTER THAT ONE PUBLIC
UTILITY WIN ONE MORE LEGAL SKIRMISH IN ITS STRUGGLE AGAINST REGULATION,
THAN THAT WE ABANDON LEGAL STANDARDS AND LET THE REGULATORY AGENCY RUN
RIOT. 

WE START HERE WITH THE EXPLOITATION OF THE PUBLIC THROUGH AN UNHOLY
ALLIANCE BETWEEN TWO PUBLIC UTILITY COMPANIES - PENN WATER AND
CONSOLIDATED.  THAT ALLIANCE HAS BEEN CONDEMNED BY THE COURT OF APPEALS
FOR THE FOURTH CIRCUIT.  SEE 184 F.2D 552; 194 F.2D 89.  THE ALLIANCE
WAS ILLEGAL BECAUSE IT VIOLATED THE SHERMAN ACT.  IT WAS AN ARRANGEMENT
THAT PERMITTED PENN WATER TO BE OPERATED AS THOUGH IT WERE A DEPARTMENT
OF CONSOLIDATED.  ALL COMPETITION BETWEEN THE TWO COMPANIES WAS
DESTROYED, AS EVIDENCED BY THE FACT THAT IN 1948 CONSOLIDATED VETOED A
STEAM ELECTRIC GENERATING PLANT TO BE BUILT BY PENN WATER AT HOLTWOOD,
PENNSYLVANIA.  WHAT PENN WATER MAY DO, THE REVENUES IT RECEIVES, THE
COSTS IT WILL INCUR ARE LARGELY DETERMINED BY CONSOLIDATED UNDER THESE
ILLEGAL CONTRACTS. 

THE COMMISSION IN ITS OPINION ON REHEARING SAID, "IF THERE ARE
QUESTIONS AS TO THE LEGALITY OF THE FOUNDATION CONTRACTS WHICH ARE IN
LITIGATION, AS RESPONDENTS' APPLICATION FOR REHEARING INDICATES, THE
VALIDITY OF OUR ORDER IS NOT DEPENDENT UPON THE DECISION OF THOSE
QUESTIONS.  IN OUR OPINION AND ORDER WE TOOK CARE TO LEAVE THE
CONTINUATION OF THE OPERATION OF THE INTEGRATED AND INTERCONNECTED
SYSTEM IN FULL EFFECT, MERELY CHANGING THE RATES,  ...  ."  8 F.P.C.
170, 175.  THE COMMISSION HAS ACCORDINGLY APPROVED THE UNHOLY
ALLIANCE.  IT HAS ALLOWED CONSOLIDATED TO CONTINUE TO MANAGE PENN WATER
AS THOUGH THE LATTER WERE ITS ALTER EGO.  IT IS THEREFORE DISINGENUOUS
FOR THE COURT TO SAY THAT HEREAFTER PENN WATER IS SUBJECT TO CONTROL BY
THE COMMISSION, NOT BY CONSOLIDATED, AND THAT THE COMMISSION DID NOT
PREMISE ANY OF ITS FINDINGS ON THE ASSUMED EXISTENCE AND CONTINUATION
OF THE ILLEGAL CONTRACTS.*  NO MATTER HOW VEHEMENT OUR DENIAL, THE
TRUTH IS THAT THE COMMISSION HAS LACED PENN WATER TO CONSOLIDATED UNDER
A MANAGEMENT CONTRACT THAT LEAVES PENN WATER NO INITIATIVE OF PRIVATE
MANAGEMENT. 

*THE COMMISSION ENTERED ITS FINAL ORDER IN THE CASES PRIOR TO THE
DECISION OF THE COURT OF APPEALS IN THE SHERMAN ACT LITIGATION.  THE
COMMISSION OPINION ON REHEARING WAS DATED FEBRUARY 26, 1949, WHILE THE
FIRST DECISION OF THE COURT OF APPEALS WAS ON SEPTEMBER 30, 1950. 

OF COURSE THE COMMISSION HAS AUTHORITY UNDER SEC. 202 OF THE FEDERAL
POWER ACT TO PROMOTE AND AT TIMES COMPEL INTERCONNECTION AND
COORDINATION OF THE FACILITIES OF PUBLIC UTILITY COMPANIES.  BUT I KNOW
OF NO POWER IN THE COMMISSION THAT AUTHORIZES IT TO PLACE ONE COMPANY
ON THE BACK OF ANOTHER COMPANY, TO MERGE AND CONSOLIDATE COMPANIES AS
IT CHOOSES, OR TO GIVE THE MANAGEMENT OF ONE COMPANY A VETO POWER OVER
THE MANAGEMENT OF A COMPETITOR.  THOSE ARE PRACTICES WHICH THE SHERMAN
ACT CONDEMNS, AND WHICH NOTHING IN THE FEDERAL POWER ACT SANCTIONS. 

THESE CASES SHOULD BE REVERSED AND REMANDED TO THE COMMISSION WITH
DIRECTIONS THAT THE COMMISSION BUILD ITS RATE ORDER ON THE POWERS THAT
IT HAS UNDER THE FEDERAL POWER ACT, NOT THE UNHOLY ALLIANCE THAT THESE
UTILITIES CREATED AND THAT THE COMMISSION HAS SOUGHT TO PERPETUATE. 
..END :






JOHANSEN V. UNITED STATES 343 U.S. 427 


NO. 401.  ARGUED MARCH 4, 1952 - DECIDED MAY 26, 1952 - 191 F.2D 162,
164, AFFIRMED. 


IN THE CASE OF A CIVILIAN EMPLOYEE OF THE UNITED STATES WHO WAS A
MEMBER OF THE CREW OF A "PUBLIC VESSEL" (NOT A "MERCHANT VESSEL") OF
THE UNITED STATES AND WHO, THROUGH NEGLIGENCE OF THE UNITED STATES OR
UNSEAWORTHINESS OF THE VESSEL, SUFFERED INJURY OR DEATH IN THE
PERFORMANCE OF HIS DUTY, THE BENEFITS AVAILABLE UNDER THE FEDERAL
EMPLOYEES COMPENSATION ACT OF 1916 ARE EXCLUSIVE, AND A SUIT AGAINST
THE UNITED STATES FOR DAMAGES UNDER THE PUBLIC VESSELS ACT IS
PRECLUDED.  PP. 428-441. 

1.  ALTHOUGH CONGRESS DID NOT SPECIFICALLY EXCLUDE SUCH A CLAIMANT
FROM THE COVERAGE OF THE PUBLIC VESSELS ACT, THAT ACT MUST BE FITTED,
AS FAIRLY AS POSSIBLE, INTO THE ENTIRE STATUTORY SYSTEM OF REMEDIES
AGAINST THE GOVERNMENT TO MAKE A WORKABLE, CONSISTENT AND EQUITABLE
WHOLE.  PP. 431-434. 

2.  A DIFFERENT RESULT IS NOT REQUIRED BY THE 1949 AMENDMENTS TO THE
FEDERAL EMPLOYEES COMPENSATION ACT.  PP. 434-441. 

3.  UNITED STATES V. MARINE, 155 F.2D 456, AND JOHNSON V. UNITED
STATES, 186 F.2D 120, DISAPPROVED.  P. 439. 

4.  TO ALLOW PUBLIC-VESSEL SEAMEN AN ELECTION OF REMEDIES WHICH IS
DENIED TO CIVILIAN SEAMEN EMPLOYED THROUGH THE WAR SHIPPING
ADMINISTRATION, 50 U.S.C. APP. SEC. 1291, WOULD CONTRIBUTE NEITHER TO
UNIFORMITY NOR TO FAIRNESS.  PP. 440-441. 

5.  AS THE GOVERNMENT HAS CREATED A COMPREHENSIVE SYSTEM TO AWARD
PAYMENTS FOR INJURIES, IT SHOULD NOT BE HELD TO HAVE MADE EXCEPTIONS TO
THAT SYSTEM WITHOUT SPECIFIC LEGISLATION TO THAT EFFECT.  P. 441. 

JOHANSEN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT.* 

*TOGETHER WITH NO. 414, MANDEL, ADMINISTRATOR, V. UNITED STATES, ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT,
ARGUED MARCH 4-5, 1952. 

IN NO. 401, A LIBEL IN ADMIRALTY AGAINST THE UNITED STATES UNDER THE
PUBLIC VESSELS ACT WAS DISMISSED BY THE DISTRICT COURT.  THE COURT OF
APPEALS AFFIRMED.  191 F.2D 162.  THIS COURT GRANTED CERTIORARI.  342
U.S. 901.  AFFIRMED, P. 441. 

IN NO. 414, THE DISTRICT COURT OVERRULED THE GOVERNMENT'S MOTION TO
DISMISS PETITIONER'S SUIT FOR DAMAGES.  THE COURT OF APPEALS REVERSED. 
191 F.2D 164.  THIS COURT GRANTED CERTIORARI.  342 U.S. 901.  AFFIRMED,
P. 441. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT THE QUESTION WHETHER CONGRESS, IN ENACTING THE
PUBLIC VESSELS ACT OF 1925, 43 STAT. 1112, 46 U.S.C. SECS. 781 ET SEQ.,
HAS CONSENTED THAT THE UNITED STATES BE SUED FOR "DAMAGES" BY OR ON
BEHALF OF MEMBERS OF THE CIVIL SERVICE COMPONENT OF THE CREW OF
MILITARY TRANSPORT VESSELS.  WE HOLD THAT THE BENEFITS AVAILABLE TO
SUCH SEAMEN UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT OF 1916, 39
STAT. 742, 5 U.S.C. SECS. 751 ET SEQ., ARE OF SUCH A NATURE AS TO
PRECLUDE A SUIT FOR DAMAGES UNDER THE PUBLIC VESSELS ACT. 

PETITIONER JOHANSEN, IN NO. 401, AND PETITIONER MANDEL'S DECEDENT, IN
NO. 414, WERE AT THE TIME OF THEIR INJURIES EMPLOYED AS CIVILIAN
MEMBERS OF THE CREWS OF ARMY TRANSPORT VESSELS, OWNED AND OPERATED BY
THE UNITED STATES.  FOR PURPOSES OF THIS REVIEW IT IS CLEAR THAT THESE
VESSELS WERE AT THAT TIME BEING USED AS "PUBLIC VESSELS," NOT "MERCHANT
VESSELS," (FN1) AND THAT THEREFORE PETITIONERS HAVE NO REMEDY BY WAY OF
A SUIT FOR DAMAGES UNDER THE SUITS IN ADMIRALTY ACT OF 1920, 41 STAT.
525, 46 U.S.C. SEC. 742.  BOTH SEAMEN WERE INJURED IN THE PERFORMANCE
OF THEIR DUTIES; PETITIONERS WERE THEREFORE CONCEDEDLY ELIGIBLE FOR
BENEFITS UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT OF 1916.  BOTH
ALLEGE THAT THE INJURIES RESULTED FROM THE NEGLIGENCE OF RESPONDENT,
AND PETITIONER JOHANSEN FURTHER RELIES UPON THE ALLEGED UNSEAWORTHINESS
OF HIS VESSEL.  THIS RELIEF SOUGHT BY PETITIONER JOHANSEN IS "DAMAGES,
WAGES, MAINTENANCE AND CURE"; THAT SOUGHT BY PETITIONER MANDEL IS
"DAMAGES" FOR WRONGFUL DEATH. 

PETITIONER JOHANSEN WAS A CARPENTER IN THE CREW OF THE TRANSPORT
KINGSPORT VICTORY.  ON AUGUST 5, 1949, HE SUSTAINED A LACERATED LEG IN
THE COURSE OF HIS DUTIES ABOARD THE VESSEL, WHICH WAS LYING AT A PIER
AT THE BETHLEHEM SHIPYARD, BROOKLYN, NEW YORK.  HE WAS TREATED AT THE
MARINE HOSPITAL UNTIL OCTOBER 24, 1949, AS A BENEFICIARY OF THE BUREAU
OF EMPLOYEES COMPENSATION.  HE FILED A CLAIM FOR COMPENSATION BENEFITS
UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT, AND COLLECTED A TOTAL OF
$358.20.  ON FEBRUARY 6, 1950, HE FILED THIS LIBEL IN ADMIRALTY IN THE
DISTRICT COURT, RELYING UPON THE PUBLIC VESSELS ACT.  THE LIBEL WAS
DISMISSED, AND, WITH ONE JUDGE DISSENTING, THE SECOND CIRCUIT AFFIRMED,
191 F.2D 162, ON THE GROUND THAT THE FEDERAL EMPLOYEES COMPENSATION ACT
AFFORDED PETITIONER HIS EXCLUSIVE REMEDY.  THE COURT RECOGNIZED THAT
ITS DECISION CONFLICTED ON THIS POINT WITH A DECISION OF THE FOURTH
CIRCUIT, JOHNSON V. UNITED STATES, 186 F.2D 120. 

PETITIONER MANDEL'S DECEDENT WAS AN ASSISTANT ENGINEER ON A TUG
OPERATED AND CONTROLLED BY THE UNITED STATES ARMY AND ASSIGNED TO THE
MEDITERRANEAN THEATER OF OPERATIONS DURING WORLD WAR II.  ON OCTOBER
15, 1944, THE TUG WAS DESTROYED BY A MINE, IN ATTEMPTING TO ENTER THE
PORT OF CAGLIARI, SARDINIA.  IN THIS DISASTER, DECEDENT MET HIS DEATH
IN THE PRESENCE OF THE ENEMY.  DECEDENT'S WIDOW PROCURED THE
APPOINTMENT OF AN ADMINISTRATOR WHO BROUGHT THIS SUIT FOR $150,000. 
THE DISTRICT COURT OVERRULED THE GOVERNMENT'S MOTION TO DISMISS, BASED
PARTLY ON THE CLAIM THAT THE FEDERAL EMPLOYEES COMPENSATION ACT IS THE
EXCLUSIVE REMEDY FOR THE ACCIDENT.  DURING PRETRIAL, WHEN THE
GOVERNMENT REFUSED TO PRODUCE CERTAIN DOCUMENTARY EVIDENCE CALLED FOR,
THE COURT ENTERED AN INTERLOCUTORY DECREE OF DEFAULT AGAINST
RESPONDENT.  ON APPEAL, PURSUANT TO 28 U.S.C. SEC. 1292(3), THE THIRD
CIRCUIT REVERSED.  191 F.2D 164.  IT LIMITED ITS CONSIDERATION TO THE
DEFENSE BASED ON THE COMPENSATION ACT.  RECOGNIZING CONFLICT WITH THE
DECISION OF THE FOURTH CIRCUIT IN UNITED STATES V. MARINE, 155 F.2D
456, AS WELL AS JOHNSON V. UNITED STATES, SUPRA, THAT COURT
NEVERTHELESS AGREED WITH THE SECOND CIRCUIT, AND HELD THAT THE FEDERAL
EMPLOYEES COMPENSATION ACT PRECLUDED RECOVERY UNDER THE PUBLIC VESSELS
ACT.  TO RESOLVE THE APPARENT CONFLICT BETWEEN THESE DECISIONS, THIS
COURT GRANTED CERTIORARI.  342 U.S. 901. 

PERSONAM IN ADMIRALTY MAY BE BROUGHT AGAINST THE UNITED STATES  ...
FOR DAMAGES CAUSED BY A PUBLIC VESSEL OF THE UNITED STATES ...  ."  WE
HAVE ALREADY HELD THAT THIS ACT GRANTS CONSENT TO BE SUED FOR PERSONAL
INJURIES SUFFERED BY AN INDIVIDUAL NOT EMPLOYED BY THE UNITED STATES,
CAUSED BY THE NEGLIGENT MAINTENANCE OR OPERATION OF A PUBLIC VESSEL OF
THE UNITED STATES.  AMERICAN STEVEDORES, INC. V. PORELLO, 330 U.S. 446,
CF. CANADIAN AVIATOR, LTD. V. UNITED STATES, 324 U.S. 215.  IF THE
CONGRESSIONAL PURPOSE WAS TO ALLOW DAMAGES FOR PERSONAL INJURIES
SUSTAINED BY FEDERAL EMPLOYEES WHILE IN THE PERFORMANCE OF DUTY, THE
LITERAL LANGUAGE OF THE ACT WOULD ALLOW ACTIONS OF THE NATURE OF THOSE
BEFORE US. 

THIS GENERAL LANGUAGE, HOWEVER, MUST BE READ IN THE LIGHT OF THE
CENTRAL PURPOSE OF THE ACT, AS DERIVED FROM THE LEGISLATIVE HISTORY OF
THE ACT AND THE SURROUNDING CIRCUMSTANCES OF ITS ENACTMENT.  THE
HISTORY OF THE ACT HAS ALREADY BEEN SET FORTH IN SOME DETAIL IN THE
PORELLO AND CANADIAN AVIATOR CASES CITED ABOVE.  IT IS SUFFICIENT HERE
TO RECALL THAT THIS ACT WAS ONE OF A NUMBER OF STATUTES WHICH ATTEST
"TO THE GROWING FEELING OF CONGRESS THAT THE UNITED STATES SHOULD PUT
ASIDE ITS SOVEREIGN ARMOR IN CASES WHERE FEDERAL EMPLOYEES HAVE
TORTIOUSLY CAUSED PERSONAL INJURY OR PROPERTY DAMAGE."  330 U.S., AT
453.  THESE ENACTMENTS WERE NOT USUALLY DIRECTED TOWARD CASES WHERE THE
UNITED STATES HAD ALREADY PUT ASIDE ITS SOVEREIGN ARMOR, GRANTING
RELIEF IN OTHER FORMS.  WITH SUCH A LEGISLATIVE HISTORY, ONE HESITATES
TO REACH A CONCLUSION AS TO THE MEANING OF THE ACT BY ADOPTION OF A
POSSIBLE INTERPRETATION THROUGH A LITERAL APPLICATION OF THE WORDS. 
NOR IS THE LEGISLATIVE HISTORY OF THE ACT HELPFUL.  WE ARE CITED TO NO
EVIDENCE THAT ANY MEMBER OF CONGRESS IN 1925 CONTEMPLATED THAT THIS ACT
MIGHT BE THOUGHT TO CONFER ADDITIONAL RIGHTS ON CLAIMANTS ENTITLED TO
THE BENEFITS OF THE FEDERAL EMPLOYEES COMEPENSATION ACT OF 1916. 
SURELY THE LACK OF SUCH EVIDENCE IS NOT HELPFUL TO PETITIONERS' CASE;
THE MOST THAT CAN BE SAID OF IT IS THAT CONGRESS DID NOT SPECIFICALLY
EXCLUDE SUCH CLAIMANTS FROM THE COVERAGE OF THE PUBLIC VESSELS ACT. 

UNDER THESE CIRCUMSTANCES, IT IS THE DUTY OF THIS COURT TO ATTEMPT TO
FIT THE PUBLIC VESSELS ACT, AS INTELLIGENTLY AND FAIRLY AS POSSIBLE,
"INTO THE ENTIRE STATUTORY SYSTEM OF REMEDIES AGAINST THE GOVERNMENT TO
MAKE A WORKABLE, CONSISTENT AND EQUITABLE WHOLE."  FERES V. UNITED
STATES, 340 U.S. 135, 139.  IT IS IMPORTANT, THEN, TO EXAMINE BRIEFLY
THE OTHER STATUTES WHICH ARE A PART OF THE SYSTEM OF REMEDIES AGAINST
THE GOVERNMENT AVAILABLE TO SEAMEN FOR PERSONAL INJURIES. 

IN 1916 CONGRESS PASSED BOTH THE SHIPPING ACT, 39 STAT. 728, 46
U.S.C. SECS. 801 ET SEQ., AND THE FEDERAL EMPLOYEES COMPENSATION ACT. 
THE FORMER SUBJECTED GOVERNMENT VESSELS, EMPLOYED SOLELY AS MERCHANT
VESSELS, TO ALL LAWS, REGULATIONS AND LIABILITIES GOVERNING PRIVATE
MERCHANT VESSELS, IF THEY WERE PURCHASED, CHARTERED, OR LEASED FROM THE
SHIPPING BOARD.  THUS A REMEDY FOR DAMAGES FOR PERSONAL INJURIES WAS
GIVEN TO MERCHANT SEAMEN ON SHIPS IN WHICH THE GOVERNMENT HAD AN
INTEREST, BUT NOT TO PUBLIC-VESSEL SEAMEN.  CF. THE G.A. FLAGG, 256 F.
852. 

IN THE LATTER ACT CONGRESS UNDERTOOK TO PROVIDE A COMPREHENSIVE
COMPENSATION SYSTEM FOR FEDERAL EMPLOYEES WHO SUSTAIN INJURIES IN THE
PERFORMANCE OF THEIR DUTY.  THE PAYMENT OF THIS COMPENSATION, SUBJECT
TO THE PROVISIONS OF THE ACT, IS MANDATORY, FOR SEC. 1 PROVIDES:  "THAT
THE UNITED STATES SHALL PAY COMPENSATION AS HEREINAFTER SPECIFIED FOR
THE DISABILITY OR DEATH OF AN EMPLOYEE RESULTING FROM A PERSONAL INJURY
SUSTAINED WHILE IN THE PERFORMANCE OF HIS DUTY  ...  ."  SECTION 7
PROVIDES "THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION
UNDER THIS ACT,  ...  HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY
SALARY, PAY, OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES
ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY
OF THE UNITED STATES."  SECTION 8, HOWEVER, RECOGNIZED THE CONFLICT
BETWEEN THAT PROVISION AND THE EMPLOYEE'S POSSIBLE RIGHT TO PAID SICK
OR ANNUAL LEAVE, AND REQUIRED THE EMPLOYEE TO ELECT BETWEEN
COMPENSATION AND SUCH PAID LEAVE.  THE ACT MADE NO OTHER PROVISION FOR
ELECTION AT THAT TIME.  LATER IT WAS AMENDED BY THE PUBLIC HEALTH
SERVICE ACT OF 1944 TO PROVIDE GENERALLY FOR ELECTION BETWEEN
COMPENSATION AND ANY OTHER PAYMENTS FROM THE UNITED STATES TO WHICH THE
EMPLOYEE MAY BE ENTITLED BY REASON OF HIS INJURY UNDER ANY OTHER ACT OF
CONGRESS BECAUSE OF HIS SERVICE AS AN EMPLOYEE OF THE UNITED STATES. 
58 STAT. 712.  THE 1944 AMENDMENT THUS CONSOLIDATED THE VARIOUS
ELECTION PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT OF 1920, 5
U.S.C. SEC. 714, AND OTHER SPECIAL DISABILITY RETIREMENT AND PENSION
LEGISLATION.  E.G., 5 U.S.C. SEC. 797; 10 U.S.C. SEC. 1711; 14 U.S.C.
SECS. 311-312, 386; 34 U.S.C. SECS. 855C, 857E; 50 U.S.C. APP. SEC.
1552.  A FURTHER AMENDMENT IN 1949 WILL BE DISCUSSED BELOW.  ASIDE FROM
THESE, THERE HAS NEVER BEEN ANY PROVISION IN THE COMPENSATION ACT FOR
ELECTION BETWEEN COMPENSATION AND OTHER REMEDIES.  IT IS QUITE
UNDERSTANDABLE THAT CONGRESS DID NOT SPECIFICALLY DECLARE THAT THE
COMPENSATION ACT WAS EXCLUSIVE OF ALL OTHER REMEDIES.  AT THE TIME OF
ITS ENACTMENT, IT WAS THE SOLE STATUTORY AVENUE TO RECOVER FROM THE
GOVERNMENT FOR TORTIOUS INJURIES RECEIVED IN GOVERNMENT EMPLOYMENT. 
ACTUALLY IT WAS THE ONLY, AND THEREFORE THE EXCLUSIVE, REMEDY.  SEE
JOHNSON V. UNITED STATES, 186 F.2D 120, 123. 

IN 1920, THE SUITS IN ADMIRALTY ACT, 41 STAT. 525, 46 U.S.C. SEC.
742, GAVE A BROAD REMEDY TO SEAMEN ON UNITED STATES MERCHANT VESSELS,
BUT DID NOT EXTEND THESE BENEFITS TO SEAMEN ON PUBLIC VESSELS.  AN
EXTENSION OF THIS NATURE WAS PROPOSED, BUT DEFEATED.  SEE CANADIAN
AVIATOR, LTD. V. UNITED STATES, 324 U.S. 215, 220-221. 

NEXT IN THE SERIES WAS THE PUBLIC VESSELS ACT OF 1925, ON WHICH
PETITIONERS RELY.  SO FAR AS PERTINENT HERE, THAT ACT SIMPLY PROVIDED
THAT A LIBEL MIGHT BE BROUGHT AGAINST THE UNITED STATES FOR DAMAGES
CAUSED BY A PUBLIC VESSEL OF THE UNITED STATES.  NO PROVISION WAS MADE
FOR ELECTION BETWEEN THIS REMEDY AND ANY REMEDIES THAT MIGHT BE
AVAILABLE UNDER OTHER FEDERAL STATUTES.  THERE IS NO INDICATION THAT
CONGRESS RECOGNIZED THAT THIS PROBLEM MIGHT ARISE. 

IN 1943 THE CLARIFICATION ACT, 57 STAT. 45, 50 U.S.C. APP. SEC. 1291,
EXTENDED THE REMEDIES AVAILABLE TO SEAMEN ON PRIVATELY OWNED AMERICAN
VESSELS TO SEAMEN EMPLOYED ON UNITED STATES VESSELS "AS EMPLOYEES OF
THE UNITED STATES THROUGH THE WAR SHIPPING ADMINISTRATION."  CLAIMS
ARISING UNDER THIS ACT WERE TO BE ENFORCED PURSUANT TO THE SUITS IN
ADMIRALTY ACT OF 1920, EVEN THOUGH THE VESSEL ON WHICH THE SEAMAN WAS
EMPLOYED MIGHT NOT BE A "MERCHANT VESSEL" WITHIN THE MEANING OF THE
SUITS IN ADMIRALTY ACT.  IT WAS SPECIFICALLY PROVIDED, HOWEVER, THAT
THIS REMEDY UNDER THE CLARIFICATION ACT WAS TO BE EXCLUSIVE OF ANY
REMEDIES THAT MIGHT OTHERWISE BE AVAILABLE UNDER THE FEDERAL EMPLOYEES
COMPENSATION ACT, THE CIVIL SERVICE RETIREMENT ACT, AND OTHER SIMILAR
ACTS.  THE ACT THUS GAVE EFFECT TO A CONGRESSIONAL PURPOSE TO TREAT
SEAMEN EMPLOYED THROUGH THE WAR SHIPPING ADMINISTRATION AS "MERCHANT
SEAMEN," NOT AS "PUBLIC VESSEL SEAMEN."  SEE COSMOPOLITAN SHIPPING CO.
V. MCALLISTER, 337 U.S. 783, 792, QUOTING FROM H.R. REP. NO. 107, 78TH
CONG., 1ST SESS.  THE ACT DID NOT PURPORT TO CHANGE THE STATUS OF
PUBLIC-VESSEL SEAMEN NOT EMPLOYED THROUGH THE WAR SHIPPING
ADMINISTRATION. 

THIS WAS THE SITUATION PRIOR TO THE 1949 AMENDMENTS TO THE FEDERAL
EMPLOYEES COMPENSATION ACT.  MERCHANT SEAMEN, OTHER THAN THOSE EMPLOYED
BY THE WAR SHIPPING ADMINISTRATION, ON SHIPS OWNED BY THE UNITED STATES
HAD A RIGHT TO LIBEL THE UNITED STATES PURSUANT TO THE SUITS IN
ADMIRALTY ACT OF 1920, BUT WHETHER THEY WERE ENTITLED TO THE BENEFITS
OF THE COMPENSATION ACT WAS DOUBTFUL.  SEE COMPTROLLER GENERAL'S
DECISION A-31684, SEPT. 10, 1930; 34 OP. ATTY. GEN. 363; JOHNSON V.
FLEET CORP., 280 U.S. 320.  SEAMEN EMPLOYED THROUGH THE WAR SHIPPING
ADMINISTRATION WERE BY THE CLARIFICATION ACT TO BE TREATED AS MERCHANT
SEAMEN, WHETHER THEY WERE SERVING ON MERCHANT VESSELS OR PUBLIC
VESSELS.  AS PUBLIC-VESSEL SEAMEN INJURED OTHER THAN IN THE COURSE OF
DUTY ARE NOT COVERED BY THE COMPENSATION ACT THEY WOULD PRESUMABLY HAVE
HAD THE SAME RIGHT TO RECOVERY AS THE PUBLIC GENERALLY UNDER THE PUBLIC
VESSELS ACT.  PUBLIC-VESSEL SEAMEN INJURED IN THE COURSE OF DUTY WERE
ENTITLED TO ALL THE BENEFITS OF THE FEDERAL EMPLOYEES COMPENSATION
ACT.  THE ISSUE IN THIS CASE IS WHETHER THIS LAST GROUP OF GOVERNMENT
EMPLOYED SEAMEN IS ELIGIBLE UNDER BOTH SCHEMES OF RECOVERY.    IT IS
ARGUED BY PETITIONERS THAT THE 1949 AMENDMENTS TO THE COMPENSATION ACT,
63 STAT.  854, SHOW THAT CONGRESS UNDERSTOOD THAT THE REMEDY OF
COMPENSATION HAD NOT BEEN, UNTIL THAT TIME, EXCLUSIVE OF OTHER
REMEDIES, AND THAT THE REMEDY OF COMPENSATION FOR SEAMEN STILL DOES NOT
PRECLUDE RECOVERY UNDER THE PUBLIC VESSELS ACT.  THESE AMENDMENTS ADDED
A NEW SUBSECTION (FN2) TO SEC. 7 OF THE COMPENSATION ACT OF 1916 TO
PROVIDE CLEARLY THAT THE LIABILITY OF THE UNITED STATES UNDER THE
COMPENSATION ACT SHALL BE EXCLUSIVE OF ALL OTHER LIABILITY OF THE
UNITED STATES ON ACCOUNT OF THE SAME INJURY.  THIS AMENDMENT, HOWEVER,
WAS NOT TO ALTER THE RIGHTS OF SEAMEN IN ANY WAY.  (FN3) PETITIONERS
ARGUE THAT CONGRESS IN 1949 WAS SEEKING, FOR THE FIRST TIME, TO
ESTABLISH THE EXCLUSIVE NATURE OF THE REMEDY OF COMPENSATION, AND
DELIBERATELY OMITTED SEAMEN FROM THIS LIMITATION.  THE BACKGROUND OF
THE AMENDMENT SHOWS, HOWEVER, THAT THIS IMPRESSION IS ERRONEOUS.  PRIOR
TO 1949, THERE WAS A DIVERGENCE OF VIEW IN THE COURTS AS TO THE
EXCLUSIVENESS VEL NON OF THE REMEDY OF COMPENSATION.  (FN4)  THIS
UNCERTAINTY EXTENDED TO SUITS BY GOVERNMENT SEAMEN SEEKING DAMAGES
UNDER THE PUBLIC VESSELS ACT.  (FN5) THE PURPOSE OF THE 1949 AMENDMENT
IS SIMPLY "TO MAKE IT CLEAR THAT THE RIGHT TO COMPENSATION BENEFITS
UNDER THE ACT IS EXCLUSIVE AND IN PLACE OF ANY AND ALL OTHER LEGAL
LIABILITY OF THE UNITED STATES OR ITS INSTRUMENTALITIES  ...  ."  S.
REP. NO. 836, 81ST CONG., 1ST SESS., P. 23.  THIS CLARIFYING AMENDMENT,
AS REPORTED OUT OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE,
LACKED THE PROVISO PROTECTING THE RIGHT, IF ANY, OF SEAMEN UNDER OTHER
FEDERAL STATUTES.  HOWEVER, NO SEAMEN'S GROUPS HAVING PARTICIPATED IN
THE HEARINGS ON THE BILL, SENATOR MORSE PROPOSED ON THE FLOOR THE
PROVISO ON WHICH PETITIONERS RELY.  SENATOR MORSE HIMSELF RECOGNIZED
THAT HIS AMENDMENT DID NO MORE THAN PRESERVE TO SEAMEN ANY RIGHTS WHICH
THEY MIGHT HAVE IN ADDITION TO COMPENSATION.  THERE IS LANGUAGE IN HIS
STATEMENT INDICATING THAT HE WAS OF THE OPINION THAT SEAMEN EMPLOYEES
HAD A CHOICE BETWEEN COMPENSATION AND LITIGATION IN ADMIRALTY.  95
CONG. REC. 13608, 13609.  SENATOR DOUGLAS, WHO WAS IN CHARGE OF THE
BILL, ACCEPTED THESE AMENDMENTS FOR THE REASON THAT THE SEAMEN'S GROUPS
HAD NOT BEEN HEARD BEFORE THE COMMITTEE OF CONGRESS.  HE STATED: 

"MR. PRESIDENT, I SHOULD LIKE TO STATE MY GROUND FOR AGREEING TO THE
AMENDMENTS OFFERED BY THE SENATOR FROM OREGON (MR. MORSE).  THE PRIMARY
CONSIDERATION FOR ACCEPTING THE SENATOR'S AMENDMENTS PRESERVING THE
MARITIME RIGHTS AND OTHER STATUTORY REMEDIES OF SEAMEN IS THE FACT THAT
NO HEARINGS WERE HELD, NO ARGUMENTS WERE HEARD, AND NO DISCUSSION WAS
HAD ON THIS ASPECT OF THE PENDING BILL ...  .  FOR THE SAME REASON,
NAMELY, THAT WE HAVE HAD NO HEARINGS ON THE MATTER, WE ARE NOT SEEKING
TO LEGISLATE AFFIRMATIVELY AS TO CERTAIN CLAIMS AND DENIALS OF A RIGHT
OF ELECTION OF REMEDIES UNDER EXISTING LAWS, WHICH CLAIMS AND DENIALS
HAVE NOT YET BEEN ADJUDICATED BY THE SUPREME COURT, ALTHOUGH VARIOUS
OTHER FEDERAL COURTS HAVE, IN EFFECT, HELD THAT FEDERALLY EMPLOYED
SEAMEN HAVE SUCH AN ELECTION. 

"IN SHORT, UNTIL THE MATTER MAY BE MORE FULLY CONSIDERED BY CONGRESS,
WE SEEK BY THE AMENDMENTS MERELY TO MAKE SURE THAT SEAMEN SHALL LOSE NO
EXISTING RIGHTS."  95 CONG. REC. 13609. 

AS THUS RECOMMENDED, THE BILL PASSED THE SENATE, 95 CONG. REC. 13609,
AND A WEEK LATER THE HOUSE ACCEPTED THE SENATE AMENDMENTS WITHOUT
DEBATE.  95 CONG. REC. 14060.  THIS BACKGROUND MAKES IT CLEAR THAT THE
1949 AMENDMENTS, FAR FROM CHANGING THE LAW RESPECTING SEAMEN'S
REMEDIES, DO NOT EVEN REFLECT A BELIEF ON THE PART OF CONGRESS THAT THE
REMEDY OF COMPENSATION IS NOT EXCLUSIVE.  THERE IS NOTHING IN THESE
AMENDMENTS TO AFFECT CONSIDERATION OF WHETHER PETITIONERS' SOLE REMEDY
IS UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT.  CF. JOHNSON V. UNITED
STATES, 186 F.2D 120, 123.  IF THE REMEDY OF COMPENSATION WAS EXCLUSIVE
PRIOR TO THE PASSAGE OF THE 1949 AMENDMENT, IT IS EXCLUSIVE NOW. 

AS INDICATED ABOVE, THE COURTS HAVE DIFFERED UPON THE QUESTION OF
EXCLUSIVENESS OF THE REMEDY AGAINST THE UNITED STATES UNDER THE FEDERAL
EMPLOYEES COMPENSATION ACT.  THIS COURT IN DAHN V. DAVIS, 258 U.S. 421,
HELD THAT A RAILWAY MAIL CLERK, INJURED IN A WRECK ON THE RAILROAD,
WHILE IT WAS OPERATED UNDER THE FEDERAL CONTROL ACT OF 1918, 40 STAT.
451, WAS BARRED FROM PROSECUTING A SUIT AGAINST THE UNITED STATES
DIRECTOR GENERAL BECAUSE HE HAD PREVIOUSLY ELECTED TO ACCEPT PAYMENT
UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT.  THE JUDGMENT OF THE
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 267 F. 105, WAS
AFFIRMED HERE ON THE GROUND THAT, WHERE THE EMPLOYEE HAD TWO REMEDIES,
EACH FOR THE SAME WRONG, AND BOTH AGAINST THE UNITED STATES, HE COULD
NOT PURSUE ONE REMEDY TO A CONCLUSION AND THEN SEEK "A SECOND
SATISFACTION OF THE SAME WRONG."  P. 429.  THE HOLDING WAS THUS BASED
ON THE DOCTRINE OF ELECTION OF REMEDIES, BUT IF THE LANGUAGE IS THOUGHT
TO ALLOW THE CHOICE OF AN ACTION AGAINST THE GOVERNMENT FOR DAMAGES, IT
IS TO BE NOTED THAT GOVERNMENT LIABILITY IN THAT CASE DEPENDED UPON
SEC. 10 OF THE FEDERAL CONTROL ACT, PERMITTING SUITS AGAINST CARRIERS
"AS NOW PROVIDED BY LAW," AND GENERAL ORDER NO. 50 DIRECTING THAT ANY
PROCEEDING WHICH "BUT FOR FEDERAL CONTROL MIGHT HAVE BEEN BROUGHT
AGAINST THE CARRIER COMPANY, SHALL BE BROUGHT AGAINST THE DIRECTOR
GENERAL  ...  AND NOT OTHERWISE."  (FN6)  THERE WAS THEREFORE IN THE
DAHN CASE LEGISLATION DIRECTLY SUBSTITUTING THE UNITED STATES FOR THE
CARRIERS IN ALL LITIGATION.  THUS THE CARRIERS' BUSINESS WAS CONDUCTED
DELIBERATELY BY THE GOVERNMENT WITH AS LITTLE CHANGE AS POSSIBLE FROM
THE SITUATION WHEN CARRIERS CONTROLLED.  HERE THE UNITED STATES
OPERATES ITS OWN VESSELS, WITHOUT ANY SUCH CONFORMITY LEGISLATION.  AS
SUCH OPERATOR IT HAS ESTABLISHED BY THE COMPENSATION ACT A METHOD OF
REDRESS FOR EMPLOYEES.  THERE IS NO REASON TO HAVE TWO SYSTEMS OF
REDRESS.  (FN7) SEE ALSO UNITED STATES V. MARINE, 155 F.2D 456, A CASE
ALLOWING RECOVERY TO A CIVILIAN EMPLOYEE OF THE GOVERNMENT UNDER THE
SUITS IN ADMIRALTY ACT, AND JOHNSON V. UNITED STATES, 186 F.2D 120,
WHICH ALLOWED A RECOVERY UNDER THE PUBLIC VESSELS ACT TO A CIVILIAN
SEAMAN ON A PUBLIC VESSEL.  THE OPINIONS BELOW IN THE CASES WE ARE
CONSIDERING TAKE THE OPPOSITE AND, WE THINK, THE BETTER VIEW. 

THE FEDERAL EMPLOYEES COMPENSATION ACT, 5 U.S.C. SECS. 751 ET SEQ.,
WAS ENACTED TO PROVIDE FOR INJURIES TO GOVERNMENT EMPLOYEES IN THE
PERFORMANCE OF THEIR DUTIES.  IT COVERS ALL EMPLOYEES.  ENACTED IN
1916, IT GAVE THE FIRST AND EXCLUSIVE RIGHT TO GOVERNMENT EMPLOYEES FOR
COMPENSATION, IN ANY FORM, FROM THE UNITED STATES.  IT WAS A
LEGISLATIVE BREACH IN THE WALL OF SOVEREIGN IMMUNITY TO DAMAGE CLAIMS
AND IT BROUGHT TO GOVERNMENT EMPLOYEES THE BENEFITS OF THE SOCIALLY
DESIRABLE RULE THAT SOCIETY SHOULD SHARE WITH THE INJURED EMPLOYEE THE
COSTS OF ACCIDENTS INCURRED IN THE COURSE OF EMPLOYMENT.  ITS BENEFITS
HAVE BEEN EXPANDED OVER THE YEARS.  SEE 5 U.S.C. (SUPP. III) SECS. 751
ET SEQ.  SUCH A COMPREHENSIVE PLAN FOR WAIVER OF SOVEREIGN IMMUNITY, IN
THE ABSENCE OF SPECIFIC EXCEPTIONS, WOULD NATURALLY BE REGARDED AS
EXCLUSIVE.  SEE UNITED STATES V. SHAW, 309 U.S. 495.  SUCH A POSITION
DOES NOT RUN COUNTER TO THE PROGRESSIVE LIBERALIZATION OF THE RIGHT TO
SUE THE UNITED STATES OR ITS AGENCIES FOR WRONGS.  (FN8)  THIS COURT
ACCEPTED THE PRINCIPLE OF THE EXCLUSIVE CHARACTER OF FEDERAL PLANS FOR
COMPENSATION IN FERES V. UNITED STATES, 340 U.S. 135.  SEEKING SO TO
APPLY THE TORT CLAIMS ACT TO SOLDIERS ON ACTIVE DUTY AS "TO MAKE A
WORKABLE, CONSISTENT AND EQUITABLE WHOLE," P. 139, WE GAVE WEIGHT TO
THE CHARACTER OF THE FEDERAL "SYSTEMS OF SIMPLE, CERTAIN, AND UNIFORM
COMPENSATION FOR INJURIES OR DEATH OF THOSE IN ARMED SERVICES."  P.
144.  MUCH THE SAME REASONING LEADS US TO OUR CONCLUSION THAT THE
COMPENSATION ACT IS EXCLUSIVE. 

HAD CONGRESS INTENDED TO GIVE A CREW MEMBER ON A PUBLIC VESSEL A
RIGHT OF RECOVERY FOR DAMAGES AGAINST THE GOVERNMENT BEYOND THE RIGHTS
GRANTED OTHER GOVERNMENT EMPLOYEES ON THE SAME VESSEL UNDER OTHER PLANS
FOR COMPENSATION, WE THINK THAT THIS ADVANTAGE WOULD HAVE BEEN
SPECIFICALLY PROVIDED.  (FN9)  AS THE COURT OF APPEALS IN THE JOHANSEN
CASE EXPLAINED, THE DUTIES AND OBLIGATIONS OF CIVILIAN AND MILITARY
MEMBERS OF THE CREW OF A PUBLIC VESSEL ARE MUCH THE SAME.  EACH HAS A
GENERAL COMPENSATION SYSTEM FOR INJURIES.  TO ALLOW PUBLIC-VESSEL
SEAMEN AN ELECTION AND TO DENY IT TO CIVILIAN SEAMEN EMPLOYED THROUGH
THE WAR SHIPPING ADMINISTRATION, 50 U.S.C. APP. SEC. 1291, WOULD
CONTRIBUTE NEITHER TO UNIFORMITY NOR TO FAIRNESS.  SEE MANDEL V. UNITED
STATES, 191 F.2D 164. 

ALL IN ALL WE ARE CONVINCED THAT THE FEDERAL EMPLOYEES COMPENSATION
ACT IS THE EXCLUSIVE REMEDY FOR CIVILIAN SEAMEN ON PUBLIC VESSELS.  AS
THE GOVERNMENT HAS CREATED A COMPREHENSIVE SYSTEM TO AWARD PAYMENTS FOR
INJURIES, IT SHOULD NOT BE HELD TO HAVE MADE EXCEPTIONS TO THAT SYSTEM
WITHOUT SPECIFIC LEGISLATION TO THAT EFFECT.  BOTH CASES ARE AFFIRMED. 

FN1  IN NO. 401, BOTH PARTIES HAVE AGREED THROUGHOUT THESE
PROCEEDINGS THAT THE VESSEL IN QUESTION WAS, AS INDICATED BY THE
ALLEGATIONS OF THE LIBEL, A "PUBLIC VESSEL," NOT A "MERCHANT VESSEL." 

IN NO. 414, PETITIONER ALLEGED IN HIS LIBEL THAT THE VESSEL IN
QUESTION WAS A "MERCHANT VESSEL."  THE DISTRICT COURT WAS DOUBTFUL
ABOUT THIS POINT, BUT DID NOT DECIDE IT, HOLDING THAT PETITIONER WAS
ENTITLED TO RECOVER WHETHER THE VESSEL WAS A "PUBLIC VESSEL" OR A
"MERCHANT VESSEL."  IN REVERSING, THE COURT OF APPEALS HELD THAT (1) IF
THE VESSEL WAS A "PUBLIC VESSEL," PETITIONER'S REMEDY UNDER THE FEDERAL
EMPLOYEES COMPENSATION ACT PRECLUDED RECOVERY IN THIS ACTION, BUT (2)
IF THE VESSEL WAS A "MERCHANT VESSEL," THE CASE WOULD PRESENT DIFFERENT
QUESTIONS, WHICH NEED NOT BE DECIDED ON THIS RECORD.  ACCORDINGLY, THE
CASE WAS REMANDED TO THE DISTRICT COURT TO PERMIT PETITIONER, IF HE SO
DESIRES, TO INTRODUCE EVIDENCE TO SHOW THAT THE VESSEL WAS A "MERCHANT
VESSEL."  THIS COURT AFFIRMS THAT MANDATE.  SINCE PETITIONER DOES NOT
SPECIFY THE SECOND HOLDING AS ERROR, WE REVIEW ONLY THE FIRST, AND
ASSUME FOR PURPOSES OF THIS REVIEW THAT THE VESSEL WAS A "PUBLIC
VESSEL." 

FN2  63 STAT. 854: 

"SEC. 201.  SECTION 7 OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS
AMENDED (5 U.S.C., 1946 EDITION, SEC. 757), IS FURTHER AMENDED BY
INSERTING THE DESIGNATION '(A)' IMMEDIATELY BEFORE THE FIRST SENTENCE
THEREOF AND BY ADDING TO SUCH SECTION A NEW SUBSECTION READING AS
FOLLOWS: 

"'(B)  THE LIABILITY OF THE UNITED STATES OR ANY OF ITS
INSTRUMENTALITIES UNDER THIS ACT OR ANY EXTENSION THEREOF WITH RESPECT
TO THE INJURY OR DEATH OF AN EMPLOYEE SHALL BE EXCLUSIVE, AND IN PLACE,
OF ALL OTHER LIABILITY OF THE UNITED STATES OR SUCH INSTRUMENTALITY TO
THE EMPLOYEE, HIS LEGAL REPRESENTATIVE, SPOUSE, DEPENDENTS, NEXT OF
KIN, AND ANYONE OTHERWISE ENTITLED TO RECOVER DAMAGES FROM THE UNITED
STATES OR SUCH INSTRUMENTALITY, ON ACCOUNT OF SUCH INJURY OR DEATH, IN
ANY DIRECT JUDICIAL PROCEEDINGS IN A CIVIL ACTION OR IN ADMIRALTY, OR
BY PROCEEDINGS, WHETHER ADMINISTRATIVE OR JUDICIAL, UNDER ANY OTHER
WORKMEN'S COMPENSATION LAW OR UNDER ANY FEDERAL TORT LIABILITY STATUTE:
PROVIDED, HOWEVER, THAT THIS SUBSECTION SHALL NOT APPLY TO A MASTER OR
A MEMBER OF THE CREW OF ANY VESSEL.'" 

FN3  SEE THE PROVISO OF THIS SECTION, QUOTED IN NOTE 2 ABOVE.  SEE
ALSO SEC. 305(B) OF THE 1949 ACT:  "NOTHING CONTAINED IN THIS ACT SHALL
BE CONSTRUED TO AFFECT ANY MARITIME RIGHTS AND REMEDIES OF A MASTER OR
MEMBER OF THE CREW OF ANY VESSEL." 

FN4  SEE POSEY V. TENNESSEE VALLEY AUTHORITY, 93 F.2D 726; PARR V.
UNITED STATES, 172 F.2D 462; THOMASON V. W.P.A., 47 F. SUPP. 51, AFF'D
138 F.2D 342; WHITE V. TENNESSEE VALLEY AUTHORITY, 58 F. SUPP. 776; SEE
ALSO LEWIS V. UNITED STATES, 89 U.S. APP. D.C. 21, 190 F.2D 22. 

FN5  O'NEAL V. UNITED STATES, 11 F.2D 869, AFF'D 11 F.2D 871; LOPEZ
V. UNITED STATES, 59 F. SUPP. 831; UNITED STATES V. LOYOLA, 161 F.2D
126.  SEE BRADEY V. UNITED STATES, 151 F.2D 742, AT 743 (DICTUM). 

FN6  MISSOURI PAC. R. CO. V. AULT, 256 U.S. 554, 562 

FN7  IT IS SUGGESTED THAT BRADY V. ROOSEVELT S.S. CO., 317 U.S. 575,
HAS A BEARING ON THIS ISSUE.  WE THINK NOT.  THERE IS AS ASSUMPTION
THAT AN EMPLOYEE OF THE UNITED STATES COULD HAVE SUED THE GOVERNMENT
FOR HIS INJURY, BUT THE CASE WAS ONE FOR DAMAGES AGAINST PRIVATE
OPERATORS, NOT THE GOVERNMENT.  P. 577.  COSMOPOLITAN SHIPPING CO. V.
MCALLISTER, 337 U.S. 783, 789. 

FN8  FEDERAL TORT CLAIMS ACT, 60 STAT. 842; SUITS IN ADMIRALTY ACT,
41 STAT. 525; PUBLIC VESSELS ACT, 43 STAT. 1112.  SEE KEIFER & KEIFER
V. RECONSTRUCTION FINANCE CORP., 306 U.S. 381. 

FN9  BRADEY V. UNITED STATES, 151 F.2D 742.  SEE DOBSON V. UNITED
STATES, 27 F.2D 807. 

MR. JUSTICE BLACK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS
AND MR. JUSTICE MINTON CONCUR, DISSENTING. 

PETITIONER IN NO. 414 SUED THE UNITED STATES UNDER THE PUBLIC VESSELS
ACT (FN1) TO RECOVER DAMAGES FOR THE DEATH OF WILLIE DILLEHAY, JR., WHO
WAS KILLED WHEN THE UNITED STATES PUBLIC VESSEL ON WHICH HE WORKED
STRUCK A MINE.  PETITIONER IN NO. 401 SUED UNDER THE SAME ACT TO
RECOVER FOR PERSONAL INJURIES HE SUFFERED WHILE WORKING ABOARD ANOTHER
PUBLIC VESSEL OF THE UNITED STATES.  THE COURT, AS IT MUST, CONCEDES
THAT THESE ACTIONS ARE PROPERLY BROUGHT IF THE "LITERAL LANGUAGE" (FN2)
OF THE PUBLIC VESSELS ACT BE ADHERED TO.  THE COURT NEVERTHELESS
DECIDES THAT PETITIONERS SHOULD BE DENIED THE BENEFITS ACCORDED BY THE
LANGUAGE OF THE ACT.  THIS HOLDING IS PREMISED ON THE THEORY THAT THE
LANGUAGE CONGRESS USED CONFLICTS HOPELESSLY WITH THE PURPOSE CONGRESS
SOUGHT TO ACHIEVE.  NOT BEING ABLE TO ESTABLISH SUCH A CONFLICT FROM
THE PUBLIC VESSELS ACT ITSELF, THE COURT MOVES BACK THROUGH THE PAGES
OF THE U.S.C. UNTIL IT ARRIVES AT THE FEDERAL EMPLOYEES COMPENSATION
ACT.  (FN3)  AGAIN IT CAN FIND NO LANGUAGE BARRING PETITIONERS' RIGHTS
TO SUE UNDER THE PUBLIC VESSELS ACT.  HOWEVER TO FIND SUCH A BAR, THE
COURT REASONS THUSLY:  THE COMPENSATION ACT PROVIDES FOR AN ADEQUATE
(PROBABLY SMALLER) RECOVERY IN THESE CASES; IT IS SHOCKING TO JUDICIAL
CONCEPTS OF SYMMETRY TO ALLOW INJURED PERSONS A CHOICE BETWEEN TWO
REMEDIES - BESIDES "THERE IS NO REASON TO HAVE TWO SYSTEMS OF REDRESS";
THEREFORE CONGRESS INTENDED THE COMPENSATION ACT OF 1916 TO BE
EXCLUSIVE AND DID NOT MEAN WHAT IT SAID NINE YEARS LATER IN THE PUBLIC
VESSELS ACT. 

THE COURT'S HOLDING IS AS UNIQUE AS THE REASONING BEHIND IT.  TIME
AND TIME AGAIN DURING THE LAST THIRTY YEARS OTHER FEDERAL COURTS HAVE
ALLOWED INJURED EMPLOYEES TO TAKE THEIR PICK - RECEIVE COMPENSATION
BENEFITS, OR SUE FOR DAMAGES UNDEER THE PUBLIC VESSELS OR SOME OTHER
ACT.  (FN4) MOREOVER, THE COURT GIVES THE GOVERNMENT PRECISELY WHAT
CONGRESS, AFTER DEBATE, REFUSED TO GIVE IN 1949.  GOVERNMENT
REPRESENTATIVES THEN ASKED CONGRESS TO MAKE THE COMPENSATION ACT
"EXCLUSIVE, AND IN PLACE OF ALL OTHER LIABILITY OF THE UNITED STATES." 
THE HOUSE YIELDED TO THIS REQUEST.  THE HOUSE REPORT FAVORING THE
CHANGE STATED THAT WHEN THE COMPENSATION ACT WAS ENACTED IN 1916 A
"PROVISION MAKING THE COMPENSATION REMEDY EXCLUSIVE APPARENTLY WAS THEN
NOT DEEMED BY THE CONGRESS TO BE NECESSARY."  (FN5)  THE REPORT ALSO
STATED THAT SUCH A PROVISION WAS NOW NEEDED BECAUSE OF ACTS SUCH AS THE
PUBLIC VESSELS ACT WHICH "IN GENERAL TERMS" AUTHORIZE THE BRINGING OF
DAMAGE SUITS AGAINST THE GOVERNMENT.  THE SENATE REFUSED TO GRANT THE
GOVERNMENT'S REQUEST AND PREVAILED UPON THE HOUSE TO ACCEPT THE PRESENT
PROVISION OF THE ACT WHICH STATES THAT:  "NOTHING CONTAINED IN THIS ACT
SHALL BE CONSTRUED TO AFFECT ANY MARITIME RIGHTS AND REMEDIES OF A
MASTER OR MEMBER OF THE CREW OF ANY VESSEL."  (FN6)  THIS SENATE
MODIFICATION OF THE BILL, AS IT HAD PASSED THE HOUSE, WAS OFFERED BY
SENATOR MORSE AND ACCEPTED BY SENATOR DOUGLAS WHO WAS IN CHARGE OF THE
BILL.  IN OFFERING THIS MODIFICATION, SENATOR MORSE SAID:  "UNDER
EXISTING LAW, GOVERNMENT-EMPLOYED SEAMEN HAVE BEEN ACCORDED THE RIGHT
TO ASSERT THEIR MARITIME RIGHTS AGAINST THE UNITED STATES UNDER THE
SUITS IN ADMIRALTY ACT AND PUBLIC VESSELS ACT  ...  .  I FEEL THEY
SHOULD NOT BE DEPRIVED OF BENEFITS THEY HAVE ENJOYED FOR MANY YEARS
WITHOUT OPPORTUNITY TO HAVE THEIR ARGUMENTS CAREFULLY CONSIDERED BY THE
APPROPRIATE COMMITTEES OF THE CONGRESS  ...  ."  95 CONG. REC. 13608. 
SENATOR DOUGLAS AGREED TO THE MODIFICATION, STATING THAT "THE PRIMARY
CONSIDERATION FOR ACCEPTING THE SENATOR'S AMENDMENTS PRESERVING THE
MARITIME RIGHTS AND OTHER STATUTORY REMEDIES OF SEAMEN IS THE FACT THAT
NO HEARINGS WERE HELD, NO ARGUMENTS WERE HEARD, AND NO DISCUSSION WAS
HAD ON THIS ASPECT OF THE PENDING BILL."  95 CONG. REC. 13609. 

I DO NOT THINK THIS COURT SHOULD DEPRIVE THESE SEAMEN OF RIGHTS WHICH
THE CONGRESS OF 1925 GAVE THEM AND THE CONGRESS OF 1949 REFUSED TO TAKE
AWAY. 

FN1  43 STAT. 1112, 46 U.S.C. SEC. 781 ET SEQ. 

FN2  SECTION 1 OF THE ACT PROVIDES "THAT A LIBEL IN PERSONAM IN
ADMIRALTY MAY BE BROUGHT AGAINST THE UNITED STATES  ...  FOR DAMAGES
CAUSED BY A PUBLIC VESSEL OF THE UNITED STATES  ...  ." 

FN3  39 STAT. 742, AS AMENDED, 5 U.S.C. (SUPP. IV) SEC. 751 ET SEQ. 

FN4  SEE E.G., JOHNSON V. UNITED STATES, 186 F.2D 120.  IN GIBBS V.
UNITED STATES, 94 F. SUPP. 586, 588-589, DISTRICT JUDGE GOODMAN SAID:
"FROM A REVIEW OF COURT DECISIONS, IT CAN BE CATEGORICALLY STATED THAT
NO FEDERAL COURT DECISION, OTHER THAN THE CASE OF POSEY V. TENN. VALLEY
AUTHORITY, 5 CIR., 1937, 93 F.2D 726, HAS EVER HELD THAT THE FECA
AFFORDS THE EXCLUSIVE REMEDY TO FEDERAL EMPLOYEES.  TO THE CONTRARY, IT
HAS BEEN SPECIFICALLY HELD THAT THE FECA DOES NOT BAR SUITS BY FEDERAL
CIVILIAN EMPLOYEES AGAINST THE PANAMA RAILROAD, OR AGAINST THE UNITED
STATES UNDER THE FEDERAL CONTROL ACT OF 1918, UNDER THE SUITS IN
ADMIRALTY ACT, UNDER THE PUBLIC VESSELS ACT AND UNDER THE FEDERAL TORT
CLAIMS ACT."  (FOOTNOTES AND CITATIONS OMITTED.) 

FN5  H.R. REP. NO. 729, 81ST CONG., 1ST SESS. 14. 

FN6  63 STAT. 868, SEC. 305(B).  IN ADDITION SEC. 201(B), WHICH
STATES THAT THE COMPENSATION ACT "SHALL BE EXCLUSIVE, AND IN PLACE, OF
ALL OTHER LIABILITY OF THE UNITED STATES," CONTAINS THE SPECIAL
EXCEPTION:  "PROVIDED, HOWEVER, THAT THIS SUBSECTION SHALL NOT APPLY TO
A MASTER OR A MEMBER OF THE CREW OF ANY VESSEL."  63 STAT. 861, 862. 
..END :



















BESSER MANUFACTURING CO. V. UNITED STATES 343 U.S. 444 


NO. 230.  ARGUED APRIL 21, 1952 - DECIDED MAY 26, 1952 - 96 F. SUPP.
304, AFFIRMED. 


1.  IN THIS CIVIL ACTION BROUGHT BY THE UNITED STATES TO ENJOIN
VIOLATIONS OF THE SHERMAN ACT, THE CONCLUSIONS OF THE TRIAL JUDGE THAT
APPELLANTS CONSPIRED TO RESTRAIN AND MONOPOLIZE INTERSTATE COMMERCE IN
MACHINERY FOR MAKING CONCRETE BLOCKS, AND THAT THEY MONOPOLIZED AND
ATTEMPTED TO MONOPOLIZE THAT INDUSTRY, ARE OVERWHELMINGLY SUPPORTED BY
THE EVIDENCE.  PP. 445-447. 

2.  THIS COURT SUSTAINS PROVISIONS OF THE DECREE REQUIRING APPELLANTS
TO ISSUE PATENT LICENSES ON A FAIR ROYALTY BASIS AND TO GRANT TO THE
EXISTING LESSEES OF THEIR MACHINES AN OPTION, ON TERMS "MUTUALLY
SATISFACTORY TO THE PARTIES CONCERNED," (1) TO TERMINATE THEIR LEASE,
(2) TO CONTINUE THEIR LEASE, OR (3) TO PURCHASE LEASED MACHINES.  P.
447. 

3.  PURSUANT TO A PROVISION OF THE DECREE FOR FIXING REASONABLE
ROYALTY RATES UNDER APPELLANTS' PATENT LICENSES, A COMMITTEE CONSISTING
OF TWO PERSONS SELECTED BY APPELLANTS AND TWO BY THE GOVERNMENT WAS
APPOINTED; AND, ON THE BASIS OF THE EVIDENCE ADDUCED BEFORE THE
COMMITTEE, THE TRIAL JUDGE RESOLVED A DEADLOCK WHICH DEVELOPED.  HELD:
THE PROCEDURE WAS FAIR AND REASONABLE, AND DID NOT DEPRIVE APPELLANTS
OF THEIR PROPERTY WITHOUT DUE PROCESS OF LAW.  PP. 447-449. 

(A)  IN THE ABSENCE OF GLARING ERROR, THIS COURT DOES NOT PASS UPON
THE QUESTION OF THE SUFFICIENCY OF THE EVIDENTIARY MATERIAL CONSIDERED
IN ARRIVING AT THE ROYALTIES FINALLY ESTABLISHED.  P. 448. 

(B)  IT WAS NOT INCUMBENT UPON THE TRIAL JUDGE TO HAVE A FULL HEARING
OF THE ROYALTY MATTERS HIMSELF OR TO REFER THEM TO A MASTER FOR SUCH A
HEARING.  PP. 448-449. 

(C)  IN FRAMING RELIEF IN ANTITRUST CASES, A RANGE OF DISCRETION RESTS
WITH THE TRIAL JUDGE, AND THERE WAS NO ABUSE OF DISCRETION SHOWN HERE. 
P. 449. 

4.  THE GOVERNMENT'S SUGGESTION THAT THIS COURT CONSIDER THE ROYALTY
SETTING PROCEDURE OUTLINED BY IT IN THE TRIAL COURT, AND DIRECT THAT IT
BE UTILIZED HEREAFTER IN THE PROCEEDINGS IN THIS CASE, CANNOT BE
ACCEPTED, SINCE THE FRAMING OF THE DECREE IS PROPERLY A FUNCTION OF THE
TRIAL COURT RATHER THAN THE APPELLATE COURT.  PP. 449-450. 

BESSER MANUFACTURING CO. ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

IN A CIVIL ACTION BROUGHT BY THE UNITED STATES UNDER SEC. 4 OF THE
SHERMAN ACT TO ENJOIN ALLEGED VIOLATIONS OF SECS. 1 AND 2, THE DISTRICT
COURT ENTERED JUDGMENT AGAINST APPELLANTS AND OTHERS.  96 F. SUPP.
304.  APPELLANTS APPEALED DIRECTLY TO THIS COURT UNDER THE EXPEDITING
ACT.  AFFIRMED, P. 450. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS CIVIL ACTION UNDER SEC. 4 OF THE
SHERMAN ACT CHARGING APPELLANTS AND OTHERS WITH CONSPIRING TO RESTRAIN
AND MONOPOLIZE INTERSTATE COMMERCE IN CONCRETE BLOCK-MAKING MACHINERY
IN VIOLATION OF SECS. 1 AND 2 OF THE ACT, AND CHARGING APPELLANTS WITH
MONOPOLIZING AND ATTEMPTING TO MONOPOLIZE THE SAME INDUSTRY IN
VIOLATION OF SEC. 2 OF THE ACT.  (FN1) 

THE DEFENDANTS BELOW WERE THE STEARNS MANUFACTURING COMPANY, SECOND
LARGEST PRODUCER IN THE COUNTRY OF CONCRETE BLOCK-MAKING MACHINES,
BESSER MANUFACTURING COMPANY, THE COUNTRY'S DOMINANT PRODUCER OF SUCH
MACHINERY AND SUBSTANTIAL STOCKHOLDER IN THE STEARNS COMPANY, JESSE H.
BESSER, LONG-TIME PRESIDENT AND VIRTUALLY SOLE STOCKHOLDER OF THE
BESSER COMPANY, AND TWO INDIVIDUALS, GELBMAN AND ANDRUS, CO-OWNERS OF
CERTAIN IMPORTANT PATENTS IN THE CONCRETE BLOCK-MAKING MACHINE FIELD. 

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
FOUND THE GOVERNMENT'S CHARGES CLEARLY PROVEN, AND ENTERED A JUDGMENT
INTENDED TO CORRECT THE SHERMAN ACT VIOLATIONS FOUND TO EXIST.  (FN2) 

ONLY THE BESSER COMPANY AND JESSE H. BESSER HAVE APPEALED, BRINGING
THEIR CASE HERE DIRECTLY.  (FN3) 

APPELLANTS ASSERT THAT THE FACTUAL CONCLUSIONS OF THE TRIAL COURT ARE
ERRONEOUS.  ONLY RECENTLY WE REITERATED THE NARROW SCOPE OF REVIEW HERE
WITH RESPECT TO ISSUES OF FACT IN ANTITRUST CASES.  UNITED STATES V.
OREGON STATE MEDICAL SOCIETY, 343 U.S. 326.  IN THIS CASE WE THINK IT
ENOUGH TO SAY THAT THE CONCLUSIONS OF THE TRIAL JUDGE THAT APPELLANTS
CONSPIRED TO RESTRAIN AND MONOPOLIZE INTERSTATE COMMERCE IN CONCRETE
BLOCK-MAKING MACHINERY AND THAT THEY MONOPOLIZED AND ATTEMPTED TO
MONOPOLIZE THAT INDUSTRY ARE OVERWHELMINGLY SUPPORTED BY THE EVIDENCE. 
NOT THE SLIGHTEST GROUND APPEARS FOR CONCLUDING THAT THE TRIAL JUDGE'S
FINDINGS WERE "CLEARLY ERRONEOUS."  RULE 52(A), FED. RULES CIV. PROC. 

WE TURN NOW TO THE PROVISIONS OF THE JUDGMENT ENTERED BELOW WHICH ARE
ATTACKED BY APPELLANTS.  IT IS UNNECESSARY FOR US TO REVIEW APPELLANTS'
ACTIVITIES IN DETAIL, FOR THEY ARE ADEQUATELY SET OUT IN THE OPINION
BELOW.  SUFFICE IT TO SAY THAT APPELLANTS SOUGHT TO ELIMINATE
COMPETITION THROUGH OUTRIGHT PURCHASE OF COMPETITORS AND STRICT PATENT
LICENSING ARRANGEMENTS WITH THE STEARNS COMPANY AND THE PATENT OWNERS,
GELBMAN AND ANDRUS. 

APPELLANTS CONTEND THAT THE PROVISIONS OF THE JUDGMENT REQUIRING THEM
TO ISSUE PATENT LICENSES ON A FAIR ROYALTY BASIS AND REQUIRING THEM TO
GRANT TO EXISTING LESSEES OF THEIR MACHINES AN OPTION, ON TERMS
"MUTUALLY SATISFACTORY TO THE PARTIES CONCERNED," (1) TO TERMINATE
THEIR LEASE, (2) TO CONTINUE THEIR LEASE, OR (3) TO PURCHASE LEASED
MACHINES, ARE PUNITIVE, CONFISCATORY AND INAPPROPRIATE. 

HOWEVER, COMPULSORY PATENT LICENSING IS A WELL-RECOGNIZED REMEDY
WHERE PATENT ABUSES ARE PROVED IN ANTITRUST ACTIONS AND IT IS REQUIRED
FOR EFFECTIVE RELIEF.  HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S.
386, 413, 417-418; UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319,
338; UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 94. 

THE COMPULSORY SALE PROVISION OF THE JUDGMENT, STRENUOUSLY ATTACKED,
IS LIKEWISE A RECOGNIZED REMEDY.  INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392, 398-399.  THAT REQUIRED BY THE JUDGMENT IN THIS
CASE MUST BE CONSIDERED IN CONJUNCTION WITH THE ALTERNATIVES ASSOCIATED
WITH IT. APPELLANTS ARE LEFT FREE TO LEASE RATHER THAN SELL IF THEY CAN
MAKE A LEASE SUFFICIENTLY ATTRACTIVE. 

APPELLANTS FURTHER ARGUE THAT THE METHOD ADOPTED BY THE COURT BELOW
FOR FIXING REASONABLE ROYALTY RATES UNDER THEIR PATENT LICENSES
DEPRIVES THEM OF THEIR PROPERTY WITHOUT DUE PROCESS OF LAW.  THE COURT
DIRECTED BESSER AND THE GOVERNMENT EACH TO SELECT TWO PERSONS TO SERVE
AS ARBITRATORS ON A COMMITTEE TO ESTABLISH FAIR ROYALTY RATES AND THE
FORM AND CONTENTS OF ROYALTY CONTRACTS.  IT WAS ALSO PROVIDED THAT IN
THE EVENT OF A STALEMATE THE FOUR REPRESENTATIVES SHOULD CHOOSE A FIFTH
TO VOTE AND BREAK THE DEADLOCK.  IF THEY COULD NOT AGREE ON A FIFTH
REPRESENTATIVE, THE TRIAL JUDGE WAS TO SIT AS THE FIFTH OR APPOINT
ANOTHER PERSON TO SERVE IN HIS PLACE.  AFTER SOME DELAY, AND UNDER
PROTEST, BESSER APPOINTED HIS REPRESENTATIVES, THE GOVERNMENT HAVING
APPOINTED ITS SHORTLY AFTER THE PLAN HAD BEEN PROMULGATED BY THE
COURT.  THE REPRESENTATIVES SELECTED BY THE GOVERNMENT WERE TAKEN FROM
THE INDUSTRY, THE GOVERNMENT NOTING TO THE COURT THAT THEY WERE SERVING
ON THEIR OWN BEHALF AND AS AGENTS OF OTHER PROSPECTIVE LICENSEES, AND
NOT AS AGENTS OF THE DEPARTMENT OF JUSTICE. 

WHEN AN IMPASSE WAS REACHED WITH REGARD TO ROYALTY RATES ON CERTAIN
BESSER PATENTS, THE JUDGE STEPPED IN AS THE FIFTH ARBITRATOR AND VOTED
FOR THE RATES PROPOSED BY THE GOVERNMENT-APPOINTED REPRESENTATIVES. 
APPELLANTS ASSAIL THIS PROCEDURE WITH THE CONTENTION THAT THE ROYALTIES
SET MUST BE "MADE IN JUDICIAL PROCEEDINGS BASED ON THE HEARING AND
EVALUATION OF EVIDENCE IN THE LIGHT OF APPROPRIATE CRITERIA." 

APPELLANTS' ARGUMENT FAILS ON TWO COUNTS.  FIRST, IT NECESSARILY
ATTACKS THE SUFFICIENCY OF THE EVIDENTIARY MATERIAL CONSIDERED IN
ARRIVING AT THE ROYALTIES FINALLY ESTABLISHED.  WE DO NOT PASS ON
MATTERS OF THAT CHARACTER IN THE ABSENCE OF GLARING ERROR NOT SHOWN
HERE.  SECONDLY, APPELLANTS APPEAR TO HAVE MISUNDERSTOOD THE TRUE
NATURE OF WHAT WAS DONE, FOR IT WAS ALWAYS WITHIN THE POWER OF THE
TRIAL JUDGE TO ESTABLISH THE ROYALTY RATES, AND, IN VOTING AS HE DID,
HE DID JUST THAT.  THEY CONTEND THAT THE JUDGE SHOULD EITHER HAVE HELD
A FULL HEARING HIMSELF OR REFERRED THE ROYALTY MATTERS TO A MASTER FOR
SUCH A HEARING.  WE DO NOT, HOWEVER, THINK THAT IN REDUCING THE TERMS
OF A DECREE TO CONCRETE MEASURES SUCH PROCEDURES ARE MANDATORY.  IT IS
TRUE THAT THE PROCEDURE ADOPTED BELOW IS AN INNOVATION IN CERTAIN
ASPECTS, BUT NOVELTY IS NOT SYNONYMOUS WITH ERROR. 

IN FRAMING RELIEF IN ANTITRUST CASES, A RANGE OF DISCRETION RESTS
WITH THE TRIAL JUDGE.  UNITED STATES V. NATIONAL LEAD CO., SUPRA, AT
338; INTERNATIONAL SALT CO. V. UNITED STATES, SUPRA, AT 400-401, 405;
UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 185.  WE CAN SEE
NO ABUSE OF DISCRETION HERE.  COMPULSORY LICENSING AND SALE OF PATENTED
DEVICES ARE RECOGNIZED REMEDIES.  THEY WOULD SEEM PARTICULARLY
APPROPRIATE WHERE, AS HERE, A PENCHANT FOR ABUSES OF PATENT RIGHTS IS
DEMONSTRATED.  WITH RESPECT TO THE PROCEDURE FOR ESTABLISHING ROYALTY
RATES, THE COURT BELOW WAS LIKEWISE ACTING WITHIN THE DISCRETION VESTED
IN IT.  "THE DISTRICT COURT SHOULD PROVIDE FOR ITS DETERMINATION OF A
REASONABLE ROYALTY EITHER IN EACH INSTANCE OF FAILURE TO AGREE OR BY AN
APPROVED FORM OR BY ANY OTHER PLAN IN ITS DISCRETION."  UNITED STATES
V. UNITED STATES GYPSUM CO., SUPRA, AT 94.  THE PROCEDURE HERE WAS
ENTIRELY REASONABLE AND FAIR.  A COMPETENT COMMITTEE CONSIDERED
RELEVANT EVIDENCE AND THE JUDGE, ON THE BASIS OF THE EVIDENCE ADDUCED
BEFORE THE COMMITTEE, RESOLVED THE DEADLOCK INTO WHICH THE NEGOTIATIONS
HAD FALLEN. 

ALTHOUGH NOT CONDEMNING THE ROYALTY-SETTING PROCEDURE USED HERE, THE
GOVERNMENT INDICATES FAINT ENTHUSIASM FOR IT, AND SUGGESTS THAT THIS
COURT CONSIDER THE PROCEDURE OUTLINED BY IT BELOW AND DIRECT THAT IT BE
UTILIZED HEREAFTER IN THE PROCEEDINGS REMAINING IN THIS LITIGATION.  WE
WOULD EXCEED OUR APPELLATE FUNCTIONS WERE WE TO ADOPT THAT SUGGESTION
IN THIS CASE.  "THE FRAMING OF DECREES SHOULD TAKE PLACE IN THE
DISTRICT RATHER THAN IN APPELLATE COURTS."  INTERNATIONAL SALT CO. V.
UNITED STATES, SUPRA AT 400; UNITED STATES V. CRESCENT AMUSEMENT CO.,
SUPRA, AT 185. 

WE HAVE EXAMINED APPELLANTS' OTHER CONTENTIONS AND CONCLUDED THAT
THEY ARE WITHOUT MERIT. 

IN ACCORDANCE WITH THE FOREGOING, THE JUDGMENT BELOW IS AFFIRMED. 

FN1  26 STAT. 209, AS AMENDED, 15 U.S.C. SEC. 4:  "THE SEVERAL
DISTRICT COURTS OF THE UNITED STATES ARE INVESTED WITH JURISDICTION TO
PREVENT AND RESTRAIN VIOLATIONS OF SECTIONS 1-7 OF THIS TITLE; 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. SEC. 1:  "EVERY CONTRACT, COMBINATION IN THE FORM OF TRUST
OR OTHERWISE, OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE AMONG
THE SEVERAL STATES  ...  IS DECLARED TO BE ILLEGAL  ...  ." 

15 U.S.C. SEC. 2:  "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
...  SHALL BE DEEMED GUILTY OF A MISDEMEANOR  ...  ." 

FN2  96 F. SUPP. 304 

FN3  PURSUANT TO SEC. 2 OF THE EXPEDITING ACT OF 1903, 32 STAT. 823,
AS AMENDED, 15 U.S.C. SEC. 29. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF COLUMBIA V. POLLAK 343
U.S. 451 


NO. 224.  ARGUED MARCH 3, 1952 - DECIDED MAY 26, 1952 - 89 U.S. APP.
D.C. 94, 191 F.2D 450, REVERSED. 


A STREET RAILWAY COMPANY IN THE DISTRICT OF COLUMBIA, WHOSE SERVICE
AND EQUIPMENT ARE SUBJECT TO REGULATION BY THE PUBLIC UTILITIES
COMMISSION OF THE DISTRICT OF COLUMBIA, RECEIVES AND AMPLIFIES RADIO
PROGRAMS THROUGH LOUDSPEAKERS IN ITS STREETCARS AND BUSSES.  THE
PROGRAMS CONSIST GENERALLY OF 90% MUSIC, 5% ANNOUNCEMENTS, AND 5%
COMMERCIAL ADVERTISING.  THE COMMISSION, AFTER AN INVESTIGATION AND
PUBLIC HEARINGS DISCLOSING SUBSTANTIAL GROUNDS FOR DOING SO, CONCLUDED
THAT THE RADIO SERVICE IS NOT INCONSISTENT WITH PUBLIC CONVENIENCE,
COMFORT AND SAFETY; AND PERMITTED IT TO CONTINUE DESPITE PROTESTS OF
SOME PASSENGERS THAT THEIR CONSTITUTIONAL RIGHTS ARE THEREBY VIOLATED. 
HELD:  NEITHER THE OPERATION OF THE RADIO SERVICE NOR THE ACTION OF THE
COMMISSION PERMITTING ITS OPERATION IS PRECLUDED BY THE FEDERAL
CONSTITUTION.  PP. 453-466. 

1.  UPON REVIEW OF THE COMMISSION'S DECISION, THE COURTS ARE
EXPRESSLY RESTRICTED BY STATUTE TO THE FACTS FOUND BY THE COMMISSION,
INSOFAR AS THOSE FINDINGS DO NOT APPEAR TO BE UNREASONABLE, ARBITRARY
OR CAPRICIOUS.  PP. 458-460. 

2.  APART FROM THE CONSTITUTIONAL ISSUES, THE ORDER OF THE COMMISSION
DISMISSING ITS INVESTIGATION WAS IN ACCORD WITH ITS PRESCRIBED
STATUTORY PROCEDURE AND WITHIN THE DISCRETION PROPERLY VESTED IN THE
COMMISSION BY CONGRESS.  PP. 460-461. 

(A)  IT IS WITHIN THE STATUTORY AUTHORITY OF THE COMMISSION TO
PROHIBIT OR TO PERMIT AND REGULATE THE RECEIPT AND AMPLIFICATION OF
RADIO PROGRAMS UNDER SUCH CONDITIONS THAT THE TOTAL UTILITY SERVICE
SHALL NOT BE UNSAFE, UNCOMFORTABLE OR INCONVENIENT.  P. 461. 

3.  THIS COURT FINDS IT APPROPRIATE TO EXAMINE INTO WHAT RESTRICTION,
IF ANY, THE FIRST AND FIFTH AMENDMENTS PLACE UPON THE FEDERAL
GOVERNMENT UNDER THE FACTS OF THIS CASE, ASSUMING THAT THE ACTION OF
THE STREET RAILWAY COMPANY IN OPERATING THE RADIO SERVICE, TOGETHER
WITH THE ACTION OF THE COMMISSION IN PERMITTING SUCH OPERATION, AMOUNTS
TO SUFFICIENT FEDERAL GOVERNMENT ACTION TO MAKE THE FIRST AND FIFTH
AMENDMENTS APPLICABLE THERETO.  PP. 461-463. 

(A)  THE FIRST AND FIFTH AMENDMENTS APPLY TO AND RESTRICT ONLY THE
FEDERAL GOVERNMENT AND NOT PRIVATE PERSONS.  P. 461. 

(B)  IN FINDING A SUFFICIENTLY CLOSE RELATION BETWEEN THE FEDERAL
GOVERNMENT AND THE RADIO SERVICE TO MAKE IT NECESSARY TO CONSIDER THE
FIRST AND FIFTH AMENDMENTS, THIS COURT RELIES PARTICULARLY UPON THE
FACT THAT THE COMMISSION, AN AGENCY AUTHORIZED BY CONGRESS, ORDERED AN
INVESTIGATION OF THE RADIO SERVICE AND, AFTER FORMAL PUBLIC HEARINGS,
ORDERED ITS INVESTIGATION DISMISSED ON THE GROUND THAT THE PUBLIC
SAFETY, COMFORT AND CONVENIENCE WERE NOT IMPAIRED THEREBY.  P. 462. 

4.  THE COMMISSION DID NOT FIND, AND THE TESTIMONY DOES NOT COMPEL A
FINDING, THAT THE RADIO PROGRAMS INTERFERED SUBSTANTIALLY WITH THE
CONVERSATION OF PASSENGERS OR WITH RIGHTS OF COMMUNICATION
CONSTITUTIONALLY PROTECTED IN PUBLIC PLACES; NOR IS THERE ANY
SUBSTANTIAL CLAIM THAT THE PROGRAMS HAVE BEEN USED FOR OBJECTIONABLE
PROPAGANDA.  P. 463. 

5.  THE RADIO PROGRAMS DO NOT INVADE RIGHTS OF PRIVACY OF THE
PASSENGERS IN VIOLATION OF THE FIFTH AMENDMENT.  PP. 463-465. 

(A)  THE FIFTH AMENDMENT DOES NOT SECURE TO EACH PASSENGER ON A
PUBLIC VEHICLE REGULATED BY THE FEDERAL GOVERNMENT A RIGHT OF PRIVACY
SUBSTANTIALLY EQUAL TO THE PRIVACY TO WHICH HE IS ENTITLED IN HIS OWN
HOME.  P. 464. 

(B)  IN ITS REGULATION OF STREETCARS AND BUSSES, THE FEDERAL
GOVERNMENT IS NOT ONLY ENTITLED, BUT IS REQUIRED, TO TAKE INTO
CONSIDERATION THE INTERESTS OF ALL CONCERNED.  P. 464. 

(C)  WHERE A REGULATORY BODY HAS JURISDICTION, IT WILL BE SUSTAINED
IN ITS PROTECTION OF ACTIVITIES IN PUBLIC PLACES WHEN THOSE ACTIVITIES
DO NOT INTERFERE WITH THE GENERAL PUBLIC CONVENIENCE, COMFORT AND
SAFETY.  PP. 464-465. 

(D)  THE SUPERVISION OF SUCH PRACTICES BY THE PUBLIC UTILITIES
COMMISSION IN THE MANNER PRESCRIBED IN THE DISTRICT OF COLUMBIA MEETS
THE REQUIREMENTS BOTH OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS WHEN IT
IS NOT ARBITRARILY AND CAPRICIOUSLY EXERCISED.  P. 465. 

(E)  THE PERSONAL LIBERTY WHICH IS PROTECTED BY THE FIFTH AMENDMENT
DOES NOT PERMIT AN OBJECTOR TO OVERRIDE THE PREFERENCE OF THE MAJORITY
OF THE OTHER PASSENGERS AND THE REGULATORY BODY'S FINDING, UPON HEARING
AND EVIDENCE, THAT THE RADIO SERVICE WAS CONSISTENT WITH THE PUBLIC
CONVENIENCE, COMFORT AND SAFETY.  P. 465. 

(F)  THE QUESTION OF THE DESIRABILITY OF THE RADIO SERVICE IS A
MATTER FOR DECISION BETWEEN THE STREET RAILWAY COMPANY, THE PUBLIC AND
THE COMMISSION.  P. 465. 

6.  SINCE THE RADIO PROGRAMS CONTAINING MUSIC, COMMERCIAL ADVERTISING
AND OTHER ANNOUNCEMENTS ARE CONSTITUTIONALLY PERMISSIBLE, IT IS CLEAR
THAT PROGRAMS LIMITED TO A LIKE TYPE OF MUSIC ALONE WOULD NOT BE LESS
SO.  PP. 465-466. 

PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF COLUMBIA ET AL. V. POLLAK
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 295, POLLAK ET AL. V. PUBLIC UTILITIES COMMISSION
OF THE DISTRICT OF COLUMBIA ET AL., ALSO ON CERTIORARI TO THE SAME
COURT. 

AN APPEAL FROM AN ORDER OF THE PUBLIC UTILITIES COMMISSION OF THE
DISTRICT OF COLUMBIA WAS DISMISSED BY THE DISTRICT COURT.  THE COURT OF
APPEALS PARTIALLY REVERSED THE JUDGMENT AND DIRECTED THAT THE
COMMISSION'S ORDER BE VACATED.  89 U.S. APP. D.C. 94, 191 F.2D 450. 
THIS COURT GRANTED CERTIORARI.  342 U.S. 848.  REVERSED, P. 466. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION HERE IS WHETHER, IN THE DISTRICT OF COLUMBIA,
THE CONSTITUTION OF THE UNITED STATES PRECLUDES A STREET RAILWAY
COMPANY FROM RECEIVING AND AMPLIFYING RADIO PROGRAMS THROUGH
LOUDSPEAKERS IN ITS PASSENGER VEHICLES UNDER THE CIRCUMSTANCES OF THIS
CASE.  THE SERVICE AND EQUIPMENT OF THE COMPANY ARE SUBJECT TO
REGULATION BY THE PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF
COLUMBIA.  THE COMMISSION, AFTER AN INVESTIGATION AND PUBLIC HEARINGS
DISCLOSING SUBSTANTIAL GROUNDS FOR DOING SO, HAS CONCLUDED THAT THE
RADIO SERVICE IS NOT INCONSISTENT WITH PUBLIC CONVENIENCE, COMFORT AND
SAFETY AND "TENDS TO IMPROVE THE CONDITIONS UNDER WHICH THE PUBLIC
RIDE."  THE COMMISSION, ACCORDINGLY, HAS PERMITTED THE RADIO SERVICE TO
CONTINUE DESPITE VIGOROUS PROTESTS FROM SOME PASSENGERS THAT TO DO SO
VIOLATES THEIR CONSTITUTIONAL RIGHTS.  FOR THE REASONS HEREAFTER
STATED, WE HOLD THAT NEITHER THE OPERATION OF THE SERVICE NOR THE
ACTION OF THE COMMISSION PERMITTING ITS OPERATION IS PRECLUDED BY THE
CONSTITUTION. 

THE CAPITAL TRANSIT COMPANY, HERE CALLED CAPITAL TRANSIT, IS A
PRIVATELY OWNED PUBLIC UTILITY CORPORATION, OWNING AN EXTENSIVE STREET
RAILWAY AND BUS SYSTEM WHICH IT OPERATES IN THE DISTRICT OF COLUMBIA
UNDER A FRANCHISE FROM CONGRESS.  (FN1)  WASHINGTON TRANSIT RADIO,
INC., HERE CALLED RADIO, ALSO IS A PRIVATELY OWNED CORPORATION DOING
BUSINESS IN THE DISTRICT OF COLUMBIA.  BOTH ARE PETITIONERS IN NO.
224. 

IN MARCH, 1948, CAPITAL TRANSIT EXPERIMENTED WITH "MUSIC AS YOU RIDE"
RADIO PROGRAMS RECEIVED AND AMPLIFIED THROUGH LOUDSPEAKERS IN A
STREETCAR AND IN A BUS.  (FN2)  THOSE VEHICLES WERE OPERATED ON VARIOUS
LINES AT VARIOUS HOURS.  A POLL OF PASSENGERS WHO HEARD THE PROGRAMS
SHOWED THAT 92% FAVORED THEIR CONTINUANCE.  EXPERIENCE IN OTHER CITIES
WAS STUDIED.  (FN3)  CAPITAL TRANSIT GRANTED RADIO THE EXCLUSIVE RIGHT
TO INSTALL, MAINTAIN, REPAIR AND USE RADIO RECEPTION EQUIPMENT IN
CAPITAL TRANSIT'S STREETCARS, BUSSES, TERMINAL FACILITIES, WAITING
ROOMS AND DIVISION HEADQUARTERS.  RADIO, IN RETURN, AGREED TO CONTRACT
WITH A BROADCASTING STATION FOR PROGRAMS TO BE RECEIVED DURING A
MINIMUM OF EIGHT HOURS EVERY DAY, EXCEPT SUNDAYS.  TO THAT END RADIO
SECURED THE SERVICES OF STATION WWDC-FM.  ITS PROGRAMS WERE TO MEET THE
SPECIFICATIONS STATED IN CAPITAL TRANSIT'S CONTRACT.  (FN4) RADIO
AGREED TO PAY CAPITAL TRANSIT, AFTER A 90-DAY TRIAL, $6 PER MONTH PER
RADIO INSTALLATION, PLUS ADDITIONAL COMPENSATION DEPENDENT UPON THE
STATION'S RECEIPTS FROM SOURCES SUCH AS COMMERCIAL ADVERTISING ON THE
PROGRAMS.  IN FEBRUARY, 1949, WHEN MORE THAN 20 INSTALLATIONS HAD BEEN
MADE, THE SERVICE WENT INTO REGULAR OPERATION.  AT THE TIME OF THE
COMMISSION'S HEARINGS, OCTOBER 27-NOVEMBER 1, 1949, THERE WERE 212.  ON
THAT BASIS THE MINIMUM ANNUAL PAYMENT TO CAPITAL TRANSIT CAME TO
$15,264.  THE POTENTIAL MINIMUM WOULD BE $108,000, BASED UPON 1,500
INSTALLATIONS.  THE CONTRACT COVERED FIVE YEARS, WITH AN AUTOMATIC FIVE
YEAR RENEWAL IN THE ABSENCE OF NOTICE TO THE CONTRARY FROM EITHER
PARTY. 

THIS PROCEEDING BEGAN IN JULY, 1949, WHEN THE COMMISSION, ON ITS OWN
MOTION, ORDERED AN INVESTIGATION.  37 STAT. 983, D.C. CODE (1940) SECS.
43-408 THROUGH 43-410.  THE COMMISSION STATED THAT CAPITAL TRANSIT HAD
EMBARKED UPON A PROGRAM OF INSTALLING RADIO RECEIVERS IN ITS STREETCARS
AND BUSSES AND THAT A NUMBER OF PROTESTS AGAINST THE PROGRAM HAD BEEN
RECEIVED.  ACCORDINGLY, THE COMMISSION WAS ORDERING AN INVESTIGATION TO
DETERMINE WHETHER THE INSTALLATION AND USE OF SUCH RECEIVERS WAS
"CONSISTENT WITH PUBLIC CONVENIENCE, COMFORT AND SAFETY."  RADIO WAS
PERMITTED TO INTERVENE.  POLLAK AND MARTIN, AS PROTESTING CAPITAL
TRANSIT PASSENGERS, ALSO INTERVENED AND THEY ARE THE RESPONDENTS IN NO.
224. 

THE COMMISSION CONCLUDED "THAT THE INSTALLATION AND USE OF RADIOS IN
STREETCARS AND BUSSES OF THE CAPITAL TRANSIT COMPANY IS NOT
INCONSISTENT WITH PUBLIC CONVENIENCE, COMFORT, AND SAFETY" AND
DISMISSED ITS INVESTIGATION.  81 P.U.R. (N.S.)  122, 126.  IT DENIED
RECONSIDERATION.  49 STAT. 882, D.C. CODE (1940) SEC. 43-704.  POLLAK
AND MARTIN APPEALED TO THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA.  49 STAT. 882-884, D.C. CODE (1940) SECS. 43-705
THROUGH 43-710.  JOHN O'DEA, AS PEOPLE'S COUNSEL, CAPITAL TRANSIT
COMPANY AND WASHINGTON TRANSIT RADIO, INC., WERE GRANTED LEAVE TO
INTERVENE.  THAT APPEAL WAS DISMISSED BUT POLLAK AND MARTIN TOOK THE
CASE TO THE COURT OF APPEALS.  49 STAT. 883, D.C. CODE (1940) SEC. 43
705.  THAT COURT PARTIALLY REVERSED THE JUDGMENT OF THE DISTRICT COURT
AND GAVE INSTRUCTIONS TO VACATE THE COMMISSION'S ORDER.  IT REMANDED
THE CASE FOR FURTHER PROCEEDINGS IN CONFORMITY WITH ITS OPINION WHICH
INCLUDED THE FOLLOWING STATEMENT: 

"IN OUR OPINION TRANSIT'S BROADCASTS DEPRIVE OBJECTING PASSENGERS OF
LIBERTY WITHOUT DUE PROCESS OF LAW.  SERVICE THAT VIOLATES
CONSTITUTIONAL RIGHTS IS NOT REASONABLE SERVICE.  IT FOLLOWS THAT THE
COMMISSION ERRED AS A MATTER OF LAW IN FINDING THAT TRANSIT'S
BROADCASTS ARE NOT INCONSISTENT WITH PUBLIC CONVENIENCE, IN FAILING TO
FIND THAT THEY ARE UNREASONABLE, AND IN FAILING TO STOP THEM. 

"THIS DECISION APPLIES TO 'COMMERCIALS' AND TO 'ANNOUNCEMENTS.'  WE
ARE NOT NOW CALLED UPON TO DECIDE WHETHER OCCASIONAL BROADCASTS OF
MUSIC ALONE WOULD INFRINGE CONSTITUTIONAL RIGHTS."  89 U.S. APP. D.C.
94, 102, 191 F.2D 450, 458. 

THE COURT OF APPEALS, EN BANC, DENIED A REHEARING.  THE COMMISSION,
CAPITAL TRANSIT AND RADIO PETITIONED THIS COURT FOR CERTIORARI IN NO.
224.  CONTINGENT UPON THE GRANTING OF CERTIORARI IN THAT CASE, POLLAK
AND MARTIN, BY CROSS-PETITION IN NO. 295, SOUGHT TO PROHIBIT CAPITAL
TRANSIT FROM RECEIVING AND AMPLIFYING IN ITS VEHICLES NOT ONLY
"COMMERCIALS" AND "ANNOUNCEMENTS," BUT ALSO THE BALANCE OF THE RADIO
PROGRAMS.  WE GRANTED CERTIORARI IN BOTH CASES BECAUSE OF THE NOVELTY
AND PRACTICAL IMPORTANCE TO THE PUBLIC OF THE QUESTIONS INVOLVED.  342
U.S. 848.  WE HAVE TREATED THE PETITIONS AS THOUGH THEY WERE CROSS
PETITIONS IN A SINGLE CASE. 

1.  FURTHER FACTS.  - IN THIS PROCEEDING THE COURTS ARE EXPRESSLY
RESTRICTED TO THE FACTS FOUND BY THE COMMISSION, INSOFAR AS THOSE
FINDINGS DO NOT APPEAR TO BE UNREASONABLE, ARBITRARY OR CAPRICIOUS. 
(FN5) 

AFTER RECITING THAT IT HAD GIVEN CAREFUL CONSIDERATION TO THE
TESTIMONY BEARING ON PUBLIC CONVENIENCE, COMFORT AND SAFETY, THE
COMMISSION SAID THAT: 

"FROM THE TESTIMONY OF RECORD, THE CONCLUSION IS INESCAPABLE THAT
RADIO RECEPTION IN STREETCARS AND BUSSES IS NOT AN OBSTACLE TO SAFETY
OF OPERATION. 

"FURTHER, IT IS EVIDENT THAT PUBLIC COMFORT AND CONVENIENCE IS NOT
IMPAIRED AND THAT, IN FACT, THROUGH THE CREATION OF BETTER WILL AMONG
PASSENGERS, IT TENDS TO IMPROVE THE CONDITIONS UNDER WHICH THE PUBLIC
RIDE."  81 P.U.R. (N.S.), AT 126. 

BEARING UPON ITS CONCLUSION AS TO THE PUBLIC COMFORT AND CONVENIENCE
RESULTING FROM THE RADIO PROGRAMS, THE COMMISSION CITED THE OPINIONS OF
CAR AND BUS OPERATORS TO THE EFFECT THAT THE "MUSIC ON THE VEHICLES HAD
A TENDENCY TO KEEP THE PASSENGERS IN A BETTER MOOD, AND THAT IT
SIMPLIFIED TRANSIT OPERATIONS."  ID., AT 125.  THE COMMISSION ALSO SAID
THAT ITS ANALYSIS OF ACCIDENTS "REFLECTS THE FACT THAT THE RADIO DOES
NOT IN ANY WAY INTERFERE WITH EFFICIENT OPERATION AND HAS NOT BEEN THE
CAUSE OF ANY ACCIDENTS, ACCORDING TO THE TESTIMONY OF  ...  A SAFETY
SUPERVISOR."  IBID. LIKEWISE, THE COMMISSION SET FORTH THE FOLLOWING AS
ONE PREMISE FOR ITS CONCLUSIONS: 

"A PUBLIC OPINION SURVEY WAS CONDUCTED BY EDWARD G. DOODY & COMPANY,
FROM OCTOBER 11, 1949, TO OCTOBER 17, 1949, IN ORDER TO DETERMINE THE
ATTITUDE OF CAPITAL TRANSIT COMPANY CUSTOMERS TOWARD TRANSIT RADIO. 
THIS SURVEY EMPLOYED THE RULES OF RANDOM SELECTION AND WAS CONFINED TO
INTERVIEWS ABOARD RADIO-EQUIPPED VEHICLES.  THE PRINCIPAL RESULTS
OBTAINED THROUGH THE SURVEY, AS PRESENTED IN THIS RECORD, WERE AS
FOLLOWS: 

"OF THOSE INTERVIEWED, 93.4 PER CENT WERE NOT OPPOSED; THAT IS, 76.3
WERE IN FAVOR, 13.9 SAID THEY DIDN'T CARE, AND 3.2 SAID THEY DIDN'T
KNOW; 6.6 PER CENT WERE NOT IN FAVOR, BUT WHEN ASKED THE QUESTION
'WELL, EVEN THOUGH YOU DON'T CARE FOR SUCH PROGRAMS PERSONALLY, WOULD
YOU OBJECT IF THE MAJORITY OF PASSENGERS WANTED BUSSES AND STREETCARS
EQUIPPED WITH RADIO RECEIVERS,' 3.6 SAID THEY WOULD NOT OBJECT OR
OPPOSE THE MAJORITY WILL.  THUS, A BALANCE OF 3 PER CENT OF THOSE
INTERVIEWED WERE FIRMLY OPPOSED TO THE USE OF RADIOS IN TRANSIT
VEHICLES."  (FN6)  IBID. 

2.  STATUTORY AUTHORITY.  - APART FROM THE CONSTITUTIONAL ISSUES, THE
ORDER OF THE COMMISSION DISMISSING ITS INVESTIGATION WAS IN ACCORD WITH
ITS PRESCRIBED STATUTORY PROCEDURE AND WITHIN THE DISCRETION PROPERLY
VESTED IN THE COMMISSION BY CONGRESS. 

TRANSIT RADIO SERVICE IS A NEW INCOME-PRODUCING INCIDENT OF THE
OPERATION OF RAILWAY PROPERTIES.  THE PROFIT ARISES FROM THE RENTAL OF
FACILITIES FOR COMMERCIAL ADVERTISING PURPOSES.  THIS ASPECT OF THE
ENTERPRISE BEARS SOME RELATION TO THE LONG-ESTABLISHED PRACTICE OF
RENTING SPACE FOR VISUAL ADVERTISING ON THE INSIDE AND OUTSIDE OF
STREETCARS AND BUSSES. 

THROUGH THESE PROGRAMS CAPITAL TRANSIT SEEKS TO IMPROVE ITS PUBLIC
RELATIONS.  TO MINIMIZE OBJECTION TO THE ADVERTISING FEATURES OF THE
PROGRAMS, IT REQUIRES THAT AT LEAST 90% OF THE RADIO TIME BE USED FOR
PURPOSES OTHER THAN COMMERCIALS AND ANNOUNCEMENTS.  THIS RESULTS IN
PROGRAMS GENERALLY CONSISTING OF 90% MUSIC, 5% NEWS, WEATHER REPORTS
AND MATTERS OF CIVIC INTEREST, AND 5% COMMERCIAL ADVERTISING.  THE
ADVERTISING IS CONFINED TO STATEMENTS OF 15 TO 30 SECONDS EACH.  IT
OCCUPIES A TOTAL OF ABOUT THREE MINUTES IN EACH HOUR 

IN VIEW OF THE FINDINGS AND CONCLUSIONS OF THE COMMISSION, THERE CAN
BE LITTLE DOUBT THAT, APART FROM THE CONSTITUTIONAL QUESTIONS HERE
RAISED, THERE IS NO BASIS FOR SETTING ASIDE THE COMMISSION'S DECISION. 
IT IS WITHIN THE STATUTORY AUTHORITY OF THE COMMISSION TO PROHIBIT OR
TO PERMIT AND REGULATE THE RECEIPT AND AMPLIFICATION OF RADIO PROGRAMS
UNDER SUCH CONDITIONS THAT THE TOTAL UTILITY SERVICE SHALL NOT BE
UNSAFE, UNCOMFORTABLE OR INCONVENIENT. 

3.  APPLICABILITY OF THE FIRST AND FIFTH AMENDMENTS.  - IT WAS HELD
BY THE COURT BELOW THAT THE ACTION OF CAPITAL TRANSIT IN INSTALLING AND
OPERATING THE RADIO RECEIVERS, COUPLED WITH THE ACTION OF THE PUBLIC
UTILITIES COMMISSION IN DISMISSING ITS OWN INVESTIGATION OF THE
PRACTICE, SUFFICIENTLY INVOLVED THE FEDERAL GOVERNMENT IN
RESPONSIBILITY FOR THE RADIO PROGRAMS TO MAKE THE FIRST AND FIFTH
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES APPLICABLE TO THIS
RADIO SERVICE.  (FN7)  THESE AMENDMENTS CONCEDEDLY APPLY TO AND
RESTRICT ONLY THE FEDERAL GOVERNMENT AND NOT PRIVATE PERSONS.  SEE
CORRIGAN V. BUCKLEY, 271 U.S. 323, 330; TALTON V. MAYES, 163 U.S. 376,
382, 384; WITHERS V. BUCKLEY, 20 HOW.  84, 89-91; BARRON V. THE MAYOR
AND CITY COUNCIL OF BALTIMORE, 7 PET. 243; SEE ALSO, VIRGINIA V. RIVES,
100 U.S. 313, 318. 

WE FIND IN THE REASONING OF THE COURT BELOW A SUFFICIENTLY CLOSE
RELATION BETWEEN THE FEDERAL GOVERNMENT AND THE RADIO SERVICE TO MAKE
IT NECESSARY FOR US TO CONSIDER THOSE AMENDMENTS.  IN FINDING THIS
RELATION WE DO NOT RELY ON THE MERE FACT THAT CAPITAL TRANSIT OPERATES
A PUBLIC UTILITY ON THE STREETS OF THE DISTRICT OF COLUMBIA UNDER
AUTHORITY OF CONGRESS.  NOR DO WE RELY UPON THE FACT THAT, BY REASON OF
SUCH FEDERAL AUTHORIZATION, CAPITAL TRANSIT NOW ENJOYS A SUBSTANTIAL
MONOPOLY OF STREET RAILWAY AND BUS TRANSPORTATION IN THE DISTRICT OF
COLUMBIA.  WE DO, HOWEVER, RECOGNIZE THAT CAPITAL TRANSIT OPERATES ITS
SERVICE UNDER THE REGULATORY SUPERVISION OF THE PUBLIC UTILITIES
COMMISSION OF THE DISTRICT OF COLUMBIA WHICH IS AN AGENCY AUTHORIZED BY
CONGRESS.  (FN8) WE RELY PARTICULARLY UPON THE FACT THAT THAT AGENCY,
PURSUANT TO PROTESTS AGAINST THE RADIO PROGRAM, ORDERED AN
INVESTIGATION OF IT AND, AFTER FORMAL PUBLIC HEARINGS, ORDERED ITS
INVESTIGATION DISMISSED ON THE GROUND THAT THE PUBLIC SAFETY, COMFORT
AND CONVENIENCE WERE NOT IMPAIRED THEREBY.  81 P.U.R. (N.S.), AT 126. 

WE, THEREFORE, FIND IT APPROPRIATE TO EXAMINE INTO WHAT RESTRICTION,
IF ANY, THE FIRST AND FIFTH AMENDMENTS PLACE UPON THE FEDERAL
GOVERNMENT UNDER THE FACTS OF THIS CASE, ASSUMING THAT THE ACTION OF
CAPITAL TRANSIT IN OPERATING THE RADIO SERVICE, TOGETHER WITH THE
ACTION OF THE COMMISSION IN PERMITTING SUCH OPERATION, AMOUNTS TO
SUFFICIENT FEDERAL GOVERNMENT ACTION TO MAKE THE FIRST AND FIFTH
AMENDMENTS APPLICABLE THERETO.    4.  NO VIOLATION OF THE FIRST
AMENDMENT.  - POLLAK AND MARTIN CONTEND THAT THE RADIO PROGRAMS
INTERFERE WITH THEIR FREEDOM OF CONVERSATION AND THAT OF OTHER
PASSENGERS BY MAKING IT NECESSARY FOR THEM TO COMPETE AGAINST THE
PROGRAMS IN ORDER TO BE HEARD.  THE COMMISSION, HOWEVER, DID NOT FIND,
AND THE TESTIMONY DOES NOT COMPEL A FINDING, THAT THE PROGRAMS
INTERFERED SUBSTANTIALLY WITH THE CONVERSATION OF PASSENGERS OR WITH
RIGHTS OF CUMMUNICATION CONSTITUTIONALLY PROTECTED IN PUBLIC PLACES. 
IT IS SUGGESTED ALSO THAT THE FIRST AMENDMENT GUARANTEES A FREEDOM TO
LISTEN ONLY TO SUCH POINTS OF VIEW AS THE LISTENER WISHES TO HEAR. 
THERE IS NO SUBSTANTIAL CLAIM THAT THE PROGRAMS HAVE BEEN USED FOR
OBJECTIONABLE PROPAGANDA.  THERE IS NO ISSUE OF THAT KIND BEFORE US.
(FN9)  THE INCLUSION IN THE PROGRAMS OF A FEW ANNOUNCEMENTS EXPLANATORY
AND COMMENDATORY OF CAPITAL TRANSIT'S OWN SERVICES DOES NOT SUSTAIN
SUCH AN OBJECTION. 

5.  NO VIOLATION OF THE FIFTH AMENDMENT.  - THE COURT BELOW HAS
EMPHASIZED THE CLAIM THAT THE RADIO PROGRAMS ARE AN INVASION OF
CONSTITUTIONAL RIGHTS OF PRIVACY OF THE PASSENGERS.  THIS CLAIM IS THAT
NO MATTER HOW MUCH CAPITAL TRANSIT MAY WISH TO USE RADIO IN ITS
VEHICLES AS PART OF ITS SERVICE TO ITS PASSENGERS AND AS A SOURCE OF
INCOME, NO MATTER HOW MUCH THE GREAT MAJORITY OF ITS PASSENGERS MAY
DESIRE RADIO IN THOSE VEHICLES, AND HOWEVER POSITIVELY THE COMMISSION,
ON SUBSTANTIAL EVIDENCE, MAY CONCLUDE THAT SUCH USE OF RADIO DOES NOT
INTERFERE WITH THE CONVENIENCE, COMFORT AND SAFETY OF THE SERVICE BUT
TENDS TO IMPROVE IT, YET IF ONE PASSENGER OBJECTS TO THE PROGRAMS AS AN
INVASION OF HIS CONSTITUTIONAL RIGHT OF PRIVACY, THE USE OF RADIO ON
THE VEHICLES MUST BE DISCONTINUED.  THIS POSITION WRONGLY ASSUMES THAT
THE FIFTH AMENDMENT SECURES TO EACH PASSENGER ON A PUBLIC VEHICLE
REGULATED BY THE FEDERAL GOVERNMENT A RIGHT OF PRIVACY SUBSTANTIALLY
EQUAL TO THE PRIVACY TO WHICH HE IS ENTITLED IN HIS OWN HOME.  HOWEVER
COMPLETE HIS RIGHT OF PRIVACY MAY BE AT HOME, IT IS SUBSTANTIALLY
LIMITED BY THE RIGHTS OF OTHERS WHEN ITS POSSESSOR TRAVELS ON A PUBLIC
THOROUGHFARE OR RIDES IN A PUBLIC CONVEYANCE.  STREETCARS AND BUSSES
ARE SUBJECT TO THE IMMEDIATE CONTROL OF THEIR OWNER AND OPERATOR AND,
BY VIRTUE OF THEIR DEDICATION TO PUBLIC SERVICE, THEY ARE FOR THE
COMMON USE OF ALL OF THEIR PASSENGERS.  THE FEDERAL GOVERNMENT IN ITS
REGULATION OF THEM IS NOT ONLY ENTITLED, BUT IS REQUIRED, TO TAKE INTO
CONSIDERATION THE INTERESTS OF ALL CONCERNED. 

IN A PUBLIC VEHICLE THERE ARE MUTUAL LIMITATIONS UPON THE CONDUCT OF
EVERYONE, INCLUDING THE VEHICLE OWNER.  THESE CONFLICTING DEMANDS LIMIT
POLICIES ON SUCH MATTERS AS OPERATING SCHEDULES AND THE LOCATION OF CAR
OR BUS STOPS, AS WELL AS POLICIES RELATING TO THE DESIRABILITY OR
NATURE OF RADIO PROGRAMS IN THE VEHICLES.  LEGISLATION PROHIBITING THE
MAKING OF ARTIFICIALLY AMPLIFIED RAUCOUS SOUNDS IN PUBLIC PLACES HAS
BEEN UPHELD.  KOVACS V. COOPER, 336 U.S. 77.  (FN10) CONVERSELY, WHERE
A REGULATORY BODY HAS JURISDICTION, IT WILL BE SUSTAINED IN ITS
PROTECTION OF ACTIVITIES IN PUBLIC PLACES WHEN THOSE ACTIVITIES DO NOT
INTERFERE WITH THE GENERAL PUBLIC CONVENIENCE, COMFORT AND SAFETY.  THE
SUPERVISION OF SUCH PRACTICES BY THE PUBLIC UTILITIES COMMISSION IN THE
MANNER PRESCRIBED IN THE DISTRICT OF COLUMBIA MEETS THE REQUIREMENTS
BOTH OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS WHEN IT IS NOT
ARBITRARILY AND CAPRICIOUSLY EXERCISED. 

THE CONTENTION OF POLLAK AND MARTIN WOULD PERMIT AN OBJECTOR, WITH A
STATUS NO DIFFERENT FROM THAT OF OTHER PASSENGERS, TO OVERRIDE NOT ONLY
THE PREFERENCE OF THE MAJORITY OF THE PASSENGERS BUT ALSO THE
CONSIDERED JUDGMENT OF THE FEDERALLY AUTHORIZED PUBLIC UTILITIES
COMMISSION, AFTER NOTICE, INVESTIGATION AND PUBLIC HEARINGS, AND UPON A
RECORD REASONABLY JUSTIFYING ITS CONCLUSION THAT THE POLICY OF THE
OWNER AND OPERATOR DID NOT INTERFERE WITH PUBLIC CONVENIENCE, COMFORT
AND SAFETY BUT TENDED, IN GENERAL, TO IMPROVE THE UTILITY SERVICE. 

WE DO NOT AGREE WITH THAT CONTENTION.  THE PROTECTION AFFORDED TO THE
LIBERTY OF THE INDIVIDUAL BY THE FIFTH AMENDMENT AGAINST THE ACTION OF
THE FEDERAL GOVERNMENT DOES NOT GO THAT FAR.  THE LIBERTY OF EACH
INDIVIDUAL IN A PUBLIC VEHICLE OR PUBLIC PLACE IS SUBJECT TO REASONABLE
LIMITATIONS IN RELATION TO THE RIGHTS OF OTHERS. 

THIS COURT EXPRESSES NO OPINION AS TO THE DESIRABILITY OF RADIO
PROGRAMS IN PUBLIC VEHICLES.  IN THIS CASE THAT IS A MATTER FOR
DECISION BETWEEN CAPITAL TRANSIT, THE PUBLIC AND THE PUBLIC UTILITIES
COMMISSION.  THE SITUATION IS NOT UNLIKE THAT WHICH ARISES WHEN A
UTILITY MAKES A CHANGE IN ITS RUNNING SCHEDULES OR IN THE LOCATIONS OF
ITS STOPS IN THE INTERESTS OF THE MAJORITY OF THE PASSENGERS BUT
AGAINST THE VIGOROUS PROTESTS OF THE FEW WHO ARE INCONVENIENCED BY THE
CHANGE. 

THE COURT BELOW EXPRESSLY REFRAINED FROM PASSING ON THE
CONSTITUTIONALITY OF THE RECEIPT AND AMPLIFICATION IN PUBLIC VEHICLES
OF OCCASIONAL BROADCASTS OF MUSIC ALONE.  POLLAK AND MARTIN, IN NO.
295, CONTEND THAT BROADCASTS EVEN SO LIMITED ARE UNCONSTITUTIONAL. 
HOWEVER, IN VIEW OF OUR HOLDING THAT THE PROGRAMS BEFORE US, CONTAINING
MUSIC, COMMERCIAL ADVERTISING AND OTHER ANNOUNCEMENTS ARE
CONSTITUTIONALLY PERMISSIBLE, IT IS CLEAR THAT PROGRAMS LIMITED TO A
LIKE TYPE OF MUSIC ALONE WOULD NOT BE LESS SO. 

THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS REVERSED AND
THE CASE IS REMANDED TO THE DISTRICT COURT.  REVERSED. 

FN1  CAPITAL TRANSIT COMPANY ORIGINATES FROM THE ACT OF CONGRESS OF
MARCH 4, 1925, AUTHORIZING THE MERGER OF STREET RAILWAY CORPORATIONS
OPERATING IN THE DISTRICT OF COLUMBIA.  43 STAT. 1265, D.C. CODE (1940)
SEC. 43-503.  THE MERGER WAS APPROVED BY JOINT RESOLUTION, JANUARY 14,
1933.  47 STAT. 752, 819, D.C. CODE (1940) NOTE FOLLOWING SEC. 43-503. 
THAT RESOLUTION REQUIRED THE NEW COMPANY TO BE INCORPORATED UNDER THE
DISTRICT CODE AND ITS CORPORATE ARTICLES TO BE APPROVED BY THE PUBLIC
UTILITIES COMMISSION OF THE DISTRICT.  47 STAT. 753, 819, D.C. CODE
(1940) NOTE FOLLOWING SEC. 43-503; SEE 31 STAT. 1284 ET SEQ., D.C. CODE
(1940) SEC. 29-201 ET SEQ. 

THE SAME RESOLUTION PROHIBITED THE ESTABLISHMENT OF ANY COMPETITIVE
STREET RAILWAY OR BUS LINE WITHOUT THE ISSUANCE OF A CERTIFICATE BY THE
COMMISSION TO THE EFFECT THAT SUCH LINE IS NECESSARY FOR THE
CONVENIENCE OF THE PUBLIC.  47 STAT. 760, D.C. CODE (1940) SEC. 44
201.  THE ONLY COMPETING LINE IN THE DISTRICT IS A RELATIVELY SMALL
INTERURBAN LINE. 

FN2  TYPICALLY, THE EQUIPMENT INCLUDES A RECEIVING SET AND SIX LOUD
SPEAKERS IN EACH VEHICLE.  THE SET IS TUNED TO A SINGLE BROADCASTING
STATION.  THE LOUDSPEAKERS ARE SO LOCATED THAT THE RADIO PROGRAMS CAN
BE HEARD SUBSTANTIALLY UNIFORMLY THROUGHOUT THE VEHICLE.  THE VOLUME OF
SOUND IS ADJUSTED SO AS NOT TO INTERFERE WITH THE SIGNALS OR
ANNOUNCEMENTS INCIDENT TO VEHICLE OPERATIONS OR GENERALLY WITH
CONVERSATIONS BETWEEN PASSENGERS. 

FN3  UNCONTRADICTED TESTIMONY LISTED APPROXIMATELY THE FOLLOWING
NUMBERS OF VEHICLES EQUIPPED WITH TRANSIT RADIO IN THE AREAS NAMED IN
OCTOBER, 1949: ST. LOUIS, MISSOURI, 1,000; CINCINNATI, OHIO, 475;
HOUSTON, TEXAS, 270; WASHINGTON, D.C., 220; WORCESTER, MASSACHUSETTS,
220; TACOMA, WASHINGTON, 135; EVANSVILLE, INDIANA, 110; WILKES-BARRE,
PENNSYLVANIA, 100; SUBURBAN PITTSBURGH, PENNSYLVANIA, 75; ALLENTOWN,
PENNSYLVANIA, 75; HUNTINGTON, WEST VIRGINIA, 55; DES MOINES, IOWA, 50;
TOPEKA, KANSAS, 50: SUBURBAN WASHINGTON, D.C., 30.  BALTIMORE,
MARYLAND, WAS LISTED BUT THE NUMBER OF VEHICLES WAS NOT STATED. 

FN4  "(A)  PROGRAM CONTENT SHALL BE OF GOOD QUALITY AND CONSONANT
WITH A HIGH STANDARD OF PUBLIC ACCEPTANCE AND RESPONSIBILITY, IT BEING
UNDERSTOOD THAT ALL PROGRAMS SHALL BE CAREFULLY PLANNED, EDITED AND
PRODUCED IN ACCORDANCE WITH ACCEPTED PRACTICES EMPLOYED BY QUALIFIED
BROADCASTING STATIONS. 

"(B)  COMMERCIAL ANNOUNCEMENTS SHALL NOT EXCEED SIXTY (60) SECONDS IN
DURATION, AND CUMULATIVELY SHALL NOT EXCEED SIX (6) MINUTES IN ANY
SIXTY (60) MINUTE PERIOD. 

"(C)  BROADCAST STATION SHALL AGREE TO CANCEL OR SUITABLY TO MODIFY
ANY COMMERCIAL CONTINUITY UPON NOTICE FROM CAPITAL THAT SAID
CONTINUITY, OR THE SPONSOR THEREOF, IS OBJECTIONABLE.  BROADCAST
STATION SHALL FURTHER AGREE THAT IT SHALL GIVE NOTICE TO CAPITAL WITHIN
TWENTY-FOUR (24) HOURS AFTER THE ACCEPTANCE OF EACH NEW SPONSOR. 

"(D)  CAPITAL IS TO RECEIVE WITHOUT CHARGE FIFTY PER CENT (50%) OF
THE UNSOLD TIME AVAILABLE FOR COMMERCIAL CONTINUITY AS PROVIDED IN SUB
ANY SIXTY (60) MINUTE PERIOD), FOR INSTITUTIONAL AND PROMOTIONAL
ANNOUNCEMENTS." 

FN5  "PAR.  66.  IN THE DETERMINATION OF ANY APPEAL FROM AN ORDER OR
DECISION OF THE COMMISSION THE REVIEW BY THE COURT SHALL BE LIMITED TO
QUESTIONS OF LAW, INCLUDING CONSTITUTIONAL QUESTIONS; AND THE FINDINGS
OF FACT BY THE COMMISSION SHALL BE CONCLUSIVE UNLESS IT SHALL APPEAR
THAT SUCH FINDINGS OF THE COMMISSION ARE UNREASONABLE, ARBITRARY OR
CAPRICIOUS."  49 STAT. 883, D.C. CODE (1940) SEC. 43-706. 

ON APPEAL TO THE DISTRICT COURT: 

"THE COMMISSION SHALL FILE WITH THE CLERK OF THE SAID COURT THE
RECORD, INCLUDING A TRANSCRIPT OF ALL PROCEEDINGS HAD AND TESTIMONY
TAKEN BEFORE THE COMMISSION, DULY CERTIFIED, UPON WHICH THE SAID ORDER
OR DECISION OF THE COMMISSION WAS BASED, TOGETHER WITH A STATEMENT OF
ITS FINDINGS OF FACT AND CONCLUSIONS UPON THE SAID RECORD, AND A COPY
OF THE APPLICATION FOR RECONSIDERATION AND THE ORDERS ENTERED THEREON:
...  ."  49 STAT. 883, D.C. CODE (1940) SEC. 43-705. 

WE TREAT THE COMMISSION'S CERTIFICATION OF ITS FINDINGS AND
CONCLUSIONS, EXPRESSED IN ITS STATEMENT OF DECEMBER 19, 1949, AS
MEETING THE ABOVE REQUIREMENT.  81 P.U.R. (N.S.)  122, 124-126. 

FN6  A COMPARABLE SURVEY, MADE APRIL 1-7, 1949, UNDER THE SAME
DIRECTION, PRODUCED SUBSTANTIALLY THE SAME RESULT.  THE WEIGHT TO BE
ATTACHED TO THESE SURVEYS WAS A PROPER MATTER FOR DETERMINATION BY THE
COMMISSION. 

THE COMMISSION INVITED VIEWS AS TO THE RADIO SERVICE TO BE GIVEN TO
IT FREELY, EITHER THROUGH SWORN TESTIMONY OR OTHERWISE.  MANY CITIZENS'
ASSOCIATIONS APPEARED OR FILED RESOLUTIONS FAVORING OR OPPOSING THE
RADIO SERVICE.  A LARGE MAJORITY FAVORED THE SERVICE. 

THAT THE COMMISSION GAVE CONSIDERATION TO THE INTENSITY AND NATURE OF
THE INDIVIDUAL OBJECTIONS RAISED APPEARS FROM THE FOLLOWING: 

"IN GENERAL, THE OBJECTIONS RAISED BY INDIVIDUALS WHO ATTENDED THE
HEARINGS TO RADIOS IN TRANSPORTATION VEHICLES WERE BASED UPON THE
FOLLOWING REASONS, AMONG OTHERS: 

"IT INTERFERED WITH THEIR THINKING, READING, OR CHATTING WITH THEIR
COMPANIONS; IT WOULD LEAD TO THOUGHT CONTROL; THE NOISE WAS UNBEARABLE;
THE COMMERCIALS, ANNOUNCEMENTS, AND TIME SIGNALS WERE ANNOYING; THE
MUSIC WAS OF THE POOREST CLASS; THE PRACTICE DEPRIVED THEM OF THEIR
RIGHT TO LISTEN OR NOT TO LISTEN; THEY WERE BEING DEPRIVED OF THEIR
PROPERTY RIGHTS WITHOUT DUE PROCESS; THEIR HEALTH WAS BEING IMPAIRED;
THE SAFETY OF OPERATION WAS THREATENED BECAUSE OF THE EFFECT OF RADIOS
UPON THE OPERATORS OF THE VEHICLES."  81 P.U.R. (N.S.), AT 124. 

FN7                "AMENDMENT (I.) 

"CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING THE FREEDOM OF SPEECH
...  . 

     *     *         *         *         *

       "AMENDMENT (V.) 

"NO PERSON SHALL  ...  BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY,
WITHOUT DUE PROCESS OF LAW; ...  ." 

FN8  "WHEN AUTHORITY DERIVES IN PART FROM GOVERNMENT'S THUMB ON THE
SCALES, THE EXERCISE OF THAT POWER BY PRIVATE PERSONS BECOMES CLOSELY
AKIN, IN SOME RESPECTS, TO ITS EXERCISE BY GOVERNMENT ITSELF." 
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 401.  CF. SMITH
V. ALLWRIGHT, 321 U.S. 649; AND SEE OLCOTT V. THE SUPERVISORS, 16
WALL.  678, 695-696. 

FN9 SEE GENERALLY, SHIPLEY, SOME CONSTITUTIONAL ASPECTS OF TRANSIT
RADIO, 11 F.C. BAR J. 150. 

THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1064 ET SEQ., AS AMENDED, 47
U.S.C. SEC. 151 ET SEQ., HAS BEEN INTERPRETED BY THE FEDERAL
COMMUNICATIONS COMMISSION AS IMPOSING UPON EACH LICENSEE THE DUTY OF
FAIR PRESENTATION OF NEWS AND CONTROVERSIAL ISSUES.  F.C.C. REPORT ON
EDITORIALIZING BY LICENSEES, 1 PIKE & FISCHER RADIO REGULATION 91:201
(1949). 

FN10  THE INTEREST OF SOME UNWILLING LISTENERS WAS THERE HELD TO
JUSTIFY SOME LIMITATION ON THE FREEDOM OF OTHERS TO AMPLIFY THEIR
SPEECH.  THE DECISION, HOWEVER, DID NOT INDICATE THAT IT WOULD VIOLATE
CONSTITUTIONAL RIGHTS OF PRIVACY OR DUE PROCESS FOR THE CITY TO
AUTHORIZE SOME USE OF SOUND TRUCKS AND AMPLIFIERS IN PUBLIC PLACES. 

MR. JUSTICE FRANKFURTER, FOR REASONS STATED BY HIM, TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THIS CASE. 

SEPARATE OPINION OF MR. JUSTICE BLACK. 

I CONCUR IN THE COURT'S HOLDING THAT THIS RECORD SHOWS NO VIOLATION
OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  I ALSO AGREE THAT
CAPITAL TRANSIT'S MUSICAL PROGRAMS HAVE NOT VIOLATED THE FIRST
AMENDMENT.  I AM OF THE OPINION, HOWEVER, THAT SUBJECTING CAPITAL
TRANSIT'S PASSENGERS TO THE BROADCASTING OF NEWS, PUBLIC SPEECHES,
VIEWS, OR PROPAGANDA OF ANY KIND AND BY ANY MEANS WOULD VIOLATE THE
FIRST AMENDMENT.  TO THE EXTENT, IF ANY, THAT THE COURT HOLDS THE
CONTRARY, I DISSENT. 

MR. JUSTICE FRANKFURTER. 

THE JUDICIAL PROCESS DEMANDS THAT A JUDGE MOVE WITHIN THE FRAMEWORK
OF RELEVANT LEGAL RULES AND THE COVENANTED MODES OF THOUGHT FOR
ASCERTAINING THEM.  HE MUST THINK DISPASSIONATELY AND SUBMERGE PRIVATE
FEELING ON EVERY ASPECT OF A CASE.  THERE IS A GOOD DEAL OF SHALLOW
TALK THAT THE JUDICIAL ROBE DOES NOT CHANGE THE MAN WITHIN IT.  IT
DOES.  THE FACT IS THAT ON THE WHOLE JUDGES DO LAY ASIDE PRIVATE VIEWS
IN DISCHARGING THEIR JUDICIAL FUNCTIONS.  THIS IS ACHIEVED THROUGH
TRAINING, PROFESSIONAL HABITS, SELF-DISCIPLINE AND THAT FORTUNATE
ALCHEMY BY WHICH MEN ARE LOYAL TO THE OBLIGATION WITH WHICH THEY ARE
ENTRUSTED.  BUT IT IS ALSO TRUE THAT REASON CANNOT CONTROL THE
SUBCONSCIOUS INFLUENCE OF FEELINGS OF WHICH IT IS UNAWARE.  WHEN THERE
IS GROUND FOR BELIEVING THAT SUCH UNCONSCIOUS FEELINGS MAY OPERATE IN
THE ULTIMATE JUDGMENT, OR MAY NOT UNFAIRLY LEAD OTHERS TO BELIEVE THEY
ARE OPERATING, JUDGES RECUSE THEMSELVES.  THEY DO NOT SIT IN JUDGMENT. 
THEY DO THIS FOR A VARIETY OF REASONS.  THE GUIDING CONSIDERATION IS
THAT THE ADMINISTRATION OF JUSTICE SHOULD REASONABLY APPEAR TO BE
DISINTERESTED AS WELL AS BE SO IN FACT.    THIS CASE FOR ME PRESENTS
SUCH A SITUATION.  MY FEELINGS ARE SO STRONGLY ENGAGED AS A VICTIM OF
THE PRACTICE IN CONTROVERSY THAT I HAD BETTER NOT PARTICIPATE IN
JUDICIAL JUDGMENT UPON IT.  I AM EXPLICIT AS TO THE REASON FOR MY NON
PARTICIPATION IN THIS CASE BECAUSE I HAVE FOR SOME TIME BEEN OF THE
VIEW THAT IT IS DESIRABLE TO STATE WHY ONE TAKES HIMSELF OUT OF A
CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THIS IS A CASE OF FIRST IMPRESSION.  THERE ARE NO PRECEDENTS TO
CONSTRUE; NO PRINCIPLES PREVIOUSLY EXPOUNDED TO APPLY.  WE WRITE ON A
CLEAN SLATE. 

THE CASE COMES DOWN TO THE MEANING OF "LIBERTY" AS USED IN THE FIFTH
AMENDMENT.  LIBERTY IN THE CONSTITUTIONAL SENSE MUST MEAN MORE THAN
FREEDOM FROM UNLAWFUL GOVERNMENTAL RESTRAINT; IT MUST INCLUDE PRIVACY
AS WELL, IF IT IS TO BE A REPOSITORY OF FREEDOM.  THE RIGHT TO BE LET
ALONE IS INDEED THE BEGINNING OF ALL FREEDOM.  PART OF OUR CLAIM TO
PRIVACY IS IN THE PROHIBITION OF THE FOURTH AMENDMENT AGAINST
UNREASONABLE SEARCHES AND SEIZURES.  IT GIVES THE GUARANTEE THAT A
MAN'S HOME IS HIS CASTLE BEYOND INVASION EITHER BY INQUISITIVE OR BY
OFFICIOUS PEOPLE.  A MAN LOSES THAT PRIVACY OF COURSE WHEN HE GOES UPON
THE STREETS OR ENTERS PUBLIC PLACES.  BUT EVEN IN HIS ACTIVITIES
OUTSIDE THE HOME HE HAS IMMUNITIES FROM CONTROLS BEARING ON PRIVACY. 
HE MAY NOT BE COMPELLED AGAINST HIS WILL TO ATTEND A RELIGIOUS SERVICE;
HE MAY NOT BE FORCED TO MAKE AN AFFIRMATION OR OBSERVE A RITUAL THAT
VIOLATES HIS SCRUPLES; HE MAY NOT BE MADE TO ACCEPT ONE RELIGIOUS,
POLITICAL, OR PHILOSOPHICAL CREED AS AGAINST ANOTHER.  FREEDOM OF
RELIGION AND FREEDOM OF SPEECH GUARANTEED BY THE FIRST AMENDMENT GIVE
MORE THAN THE PRIVILEGE TO WORSHIP, TO WRITE, TO SPEAK AS ONE CHOOSES;
THEY GIVE FREEDOM NOT TO DO NOR TO ACT AS THE GOVERNMENT CHOOSES.  THE
FIRST AMENDMENT IN ITS RESPECT FOR THE CONSCIENCE OF THE INDIVIDUAL
HONORS THE SANCTITY OF THOUGHT AND BELIEF.  TO THINK AS ONE CHOOSES, TO
BELIEVE WHAT ONE WISHES ARE IMPORTANT ASPECTS OF THE CONSTITUTIONAL
RIGHT TO BE LET ALONE. 

IF WE REMEMBERED THIS LESSON TAUGHT BY THE FIRST AMENDMENT, I DO NOT
BELIEVE WE WOULD CONSTRUE "LIBERTY" WITHIN THE MEANING OF THE FIFTH
AMENDMENT AS NARROWLY AS THE COURT DOES.  THE PRESENT CASE INVOLVES A
FORM OF COERCION TO MAKE PEOPLE LISTEN.  THE LISTENERS ARE OF COURSE IN
A PUBLIC PLACE; THEY ARE ON STREETCARS TRAVELING TO AND FROM HOME.  IN
ONE SENSE IT CAN BE SAID THAT THOSE WHO RIDE THE STREETCARS DO SO
VOLUNTARILY.  YET IN A PRACTICAL SENSE THEY ARE FORCED TO RIDE, SINCE
THIS MODE OF TRANSPORTATION IS TODAY ESSENTIAL FOR MANY THOUSANDS. 
COMPULSION WHICH COMES FROM CIRCUMSTANCES CAN BE AS REAL AS COMPULSION
WHICH COMES FROM A COMMAND. 

THE STREETCAR AUDIENCE IS A CAPTIVE AUDIENCE.  IT IS THERE AS A
MATTER OF NECESSITY, NOT OF CHOICE.  ONE WHO IS IN A PUBLIC VEHICLE MAY
NOT OF COURSE COMPLAIN OF THE NOISE OF THE CROWD AND THE BABBLE OF
TONGUES.  ONE WHO ENTERS ANY PUBLIC PLACE SACRIFICES SOME OF HIS
PRIVACY.  MY PROTEST IS AGAINST THE INVASION OF HIS PRIVACY OVER AND
BEYOND THE RISKS OF TRAVEL. 

THE GOVERNMENT MAY USE THE RADIO (OR TELEVISION) ON PUBLIC VEHICLES
FOR MANY PURPOSES.  TODAY IT MAY USE IT FOR A CULTURAL END.  TOMORROW
IT MAY USE IT FOR POLITICAL PURPOSES.  SO FAR AS THE RIGHT OF PRIVACY
IS CONCERNED THE PURPOSE MAKES NO DIFFERENCE.  THE MUSIC SELECTED BY
ONE BUREAUCRAT MAY BE AS OFFENSIVE TO SOME AS IT IS SOOTHING TO
OTHERS.  THE NEWS COMMENTATOR CHOSEN TO REPORT ON THE EVENTS OF THE DAY
MAY GIVE OVERTONES TO THE NEWS THAT PLEASE THE BUREAU HEAD BUT WHICH
RILE THE STREETCAR CAPTIVE AUDIENCE.  THE POLITICAL PHILOSOPHY WHICH
ONE RADIO SPEAKER EXUDES MAY BE THOUGHT BY THE OFFICIAL WHO MAKES UP
THE STREETCAR PROGRAMS TO BE BEST FOR THE WELFARE OF THE PEOPLE.  BUT
THE MAN WHO LISTENS TO IT ON HIS WAY TO WORK IN THE MORNING AND ON HIS
WAY HOME AT NIGHT MAY THINK IT MARKS THE DESTRUCTION OF THE REPUBLIC. 

ONE WHO TUNES IN ON AN OFFENSIVE PROGRAM AT HOME CAN TURN IT OFF OR
TUNE IN ANOTHER STATION, AS HE WISHES.  ONE WHO HEARS DISQUIETING OR
UNPLEASANT PROGRAMS IN PUBLIC PLACES, SUCH AS RESTAURANTS, CAN GET UP
AND LEAVE.  BUT THE MAN ON THE STREETCAR HAS NO CHOICE BUT TO SIT AND
LISTEN, OR PERHAPS TO SIT AND TO TRY NOT TO LISTEN. 

WHEN WE FORCE PEOPLE TO LISTEN TO ANOTHER'S IDEAS, WE GIVE THE
PROPAGANDIST A POWERFUL WEAPON.  TODAY IT IS A BUSINESS ENTERPRISE
WORKING OUT A RADIO PROGRAM UNDER THE AUSPICES OF GOVERNMENT.  TOMORROW
IT MAY BE A DOMINANT POLITICAL OR RELIGIOUS GROUP.  TODAY THE PURPOSE
IS BENIGN; THERE IS NO INVIDIOUS CAST TO THE PROGRAMS.  BUT THE VICE IS
INHERENT IN THE SYSTEM.  ONCE PRIVACY IS INVADED, PRIVACY IS GONE. 
ONCE A MAN IS FORCED TO SUBMIT TO ONE TYPE OF RADIO PROGRAM, HE CAN BE
FORCED TO SUBMIT TO ANOTHER.  IT MAY BE BUT A SHORT STEP FROM A
CULTURAL PROGRAM TO A POLITICAL PROGRAM. 

IF LIBERTY IS TO FLOURISH, GOVERNMENT SHOULD NEVER BE ALLOWED TO
FORCE PEOPLE TO LISTEN TO ANY RADIO PROGRAM.  THE RIGHT OF PRIVACY
SHOULD INCLUDE THE RIGHT TO PICK AND CHOOSE FROM COMPETING
ENTERTAINMENTS, COMPETING PROPAGANDA, COMPETING POLITICAL
PHILOSOPHIES.  IF PEOPLE ARE LET ALONE IN THOSE CHOICES, THE RIGHT OF
PRIVACY WILL PAY DIVIDENDS IN CHARACTER AND INTEGRITY.  THE STRENGTY OF
OUR SYSTEM IS IN THE DIGNITY, THE RESOURCEFULNESS, AND THE INDEPENDENCE
OF OUR PEOPLE.  OUR CONFIDENCE IS IN THEIR ABILITY AS INDIVIDUALS TO
MAKE THE WISEST CHOICE.  THAT SYSTEM CANNOT FLOURISH IF REGIMENTATION
TAKES HOLD.  THE RIGHT OF PRIVACY, TODAY VIOLATED, IS A POWERFUL
DETERRENT TO ANY ONE WHO WOULD CONTROL MEN'S MINDS. 
..END :























FEDERAL TRADE COMMISSION V. RUBEROID CO. 343 U.S. 470 


NO. 448.  ARGUED MARCH 31 AND APRIL 1, 1952 - DECIDED MAY 26, 1952 - 191
F.2D 294, AFFIRMED. 


A COMPANY WHICH WAS ENGAGED IN THE MANUFACTURE OF ROOFING MATERIALS
WAS FOUND BY THE FEDERAL TRADE COMMISSION TO HAVE DISCRIMINATED AMONG
CUSTOMERS IN THE PRICES CHARGED FOR ITS PRODUCTS.  THE COMMISSION HELD
THAT THE DISCRIMINATIONS VIOLATED SEC. 2(A) OF THE CLAYTON ACT, AS
AMENDED, AND ORDERED THE COMPANY TO CEASE AND DESIST FROM SELLING
"PRODUCTS OF LIKE GRADE AND QUALITY TO ANY PURCHASER AT PRICES LOWER
THAN THOSE GRANTED OTHER PURCHASERS WHO IN FACT COMPETE WITH THE
FAVORED PURCHASER IN THE RESALE OR DISTRIBUTION OF SUCH PRODUCTS." 
UPON THE COMPANY'S PETITION FOR REVIEW, THE COURT OF APPEALS AFFIRMED,
BUT REFUSED AN ORDER OF ENFORCEMENT.  HELD: 

1.  CONGRESS HAS VESTED IN THE FEDERAL TRADE COMMISSION THE PRIMARY
RESPONSIBILITY FOR FASHIONING ORDERS DEALING WITH CLAYTON ACT
VIOLATIONS, AND THE COURTS WILL NOT INTERFERE EXCEPT WHERE THE REMEDY
SELECTED HAS NO REASONABLE RELATION TO THE UNLAWFUL PRACTICES FOUND TO
EXIST.  P. 473. 

2.  ALTHOUGH IN THE COMPANY'S PRICE DISCRIMINATIONS BETWEEN COMPETING
PURCHASERS THE COMMISSION FOUND ONLY DIFFERENTIALS OF 5% OR MORE, THE
ORDER WAS NOT TOO BROAD IN PROHIBITING ALL PRICE DIFFERENTIALS BETWEEN
COMPETING PURCHASERS, IN VIEW OF THE COMMISSION'S FINDING THAT EVEN
VERY SMALL DIFFERENCES IN PRICE WERE IMPORTANT FACTORS IN COMPETITION
AMONG THE COMPANY'S CUSTOMERS.  PP. 473-474. 

3.  ALTHOUGH THE PRICE DISCRIMINATIONS FOUND WERE IN SALES TO
RETAILERS AND APPLICATORS, NOT IN SALES TO WHOLESALERS, THE EXTENSION
OF THE ORDER TO "PURCHASERS WHO IN FACT COMPETE" WAS NOT UNREASONABLE,
IN VIEW OF THE EVIDENCE THAT THE COMPANY'S CLASSIFICATION OF ITS
CUSTOMERS - AS WHOLESALERS, RETAILERS, AND APPLICATORS - DID NOT FOLLOW
REAL FUNCTIONAL DIFFERENCES.  PP. 474-475. 

4.  THE ORDER DOES NOT ENJOIN LAWFUL ACTS BY REASON OF THE
COMMISSION'S FAILURE TO EXCEPT FROM ITS PROHIBITIONS DIFFERENTIALS
PERMITTED BY THE TERMS OF THE ACT (MAKING ALLOWANCE FOR DIFFERENCES IN
COST OF MANUFACTURE, SALE OR DELIVERY, OR MADE IN GOOD FAITH TO MEET AN
EQUALLY LOW PRICE OF A COMPETITOR), SINCE THESE EXCEPTIONS ARE
NECESSARILY IMPLICIT IN EVERY ORDER ISSUED UNDER AUTHORITY OF THE ACT. 
PP. 475-476. 

(A)  HOWEVER, IN CONTESTING ENFORCEMENT OR CONTEMPT PROCEEDINGS, THE
SELLER MAY PLEAD ONLY THOSE FACTS CONSTITUTING STATUTORY JUSTIFICATION
WHICH IT HAS NOT PREVIOUSLY HAD AN OPPORTUNITY TO PRESENT.  PP. 476
477. 

5.  THE COMMISSION IS NOT ENTITLED TO A DECREE DIRECTING ENFORCEMENT
OF AN ORDER ISSUED UNDER THE CLAYTON ACT IN THE ABSENCE OF A SHOWING
THAT A VIOLATION OF THE ORDER HAS OCCURRED OR IS IMMINENT.  PP. 477
480. 

(A)  THE PROVISION OF THE ACT AUTHORIZING THE COMMISSION TO APPLY FOR
ENFORCEMENT "IF SUCH PERSON FAILS OR NEGLECTS TO OBEY SUCH ORDER"
PRESCRIBES A PREREQUISITE TO THE COURT'S GRANTING ENFORCEMENT.  PP. 478
479. 

(B)  DISOBEDIENCE OR THREATENED DISOBEDIENCE OF THE ORDER IS A
CONDITION TO THE GRANTING OF ENFORCEMENT, EVEN WHERE THE ORDER COMES
BEFORE THE COURT UPON PETITION FOR REVIEW BY THE AFFECTED PARTY.  PP.
479-480. 

FEDERAL TRADE COMMISSION V. RUBEROID CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT.* 

*TOGETHER WITH NO. 504, RUBEROID CO. V. FEDERAL TRADE COMMISSION,
ALSO ON CERTIORARI TO THE SAME COURT. 

UPON A PETITION FOR REVIEW OF A CEASE-AND-DESIST ORDER OF THE FEDERAL
TRADE COMMISSION, 46 F.T.C. 379, THE COURT OF APPEALS AFFIRMED AND
GRANTED ENFORCEMENT OF THE ORDER.  189 F.2D 893.  ON REHEARING, IT
STRUCK FROM ITS DECISION THAT PART GRANTING ENFORCEMENT.  191 F.2D
294.  THIS COURT GRANTED CERTIORARI.  342 U.S. 917.  AFFIRMED, P. 480. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE GRANTED CROSS-PETITIONS FOR CERTIORARI TO REVIEW THE
DECREE OF THE COURT OF APPEALS AFFIRMING, BUT REFUSING TO ENFORCE, A
CEASE AND DESIST ORDER ISSUED BY THE FEDERAL TRADE COMMISSION TO THE
RUBEROID CO. 

RUBEROID IS ONE OF THE NATION'S LARGEST MANUFACTURERS OF ASPHALT AND
ASBESTOS ROOFING MATERIALS AND ALLIED PRODUCTS.  THE COMMISSION FOUND
THAT RUBEROID, IN A NUMBER OF SPECIFIC INSTANCES, HAD DISCRIMINATED
AMONG CUSTOMERS IN THE PRICES CHARGED THEM FOR ROOFING MATERIALS. 
FURTHER FINDING THAT THE EFFECT OF THOSE DISCRIMINATIONS "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION IN THE LINE OF COMMERCE IN WHICH
THOSE CUSTOMERS ARE ENGAGED, AND TO INJURE, DESTROY, OR PREVENT
COMPETITION BETWEEN THOSE CUSTOMERS," (FN1) THE COMMISSION HELD THAT
THE DISCRIMINATIONS WERE VIOLATIONS OF SEC. 2(A) OF THE CLAYTON ACT, AS
AMENDED BY THE ROBINSON-PATMAN ACT.  (FN2)  46 F.T.C. 379.  RUBEROID
WAS ORDERED TO:

"CEASE AND DESIST FROM DISCRIMINATING IN PRICE: 

"BY SELLING SUCH PRODUCTS OF LIKE GRADE AND QUALITY TO ANY PURCHASER
AT PRICES LOWER THAN THOSE GRANTED OTHER PURCHASERS WHO IN FACT COMPETE
WITH THE FAVORED PURCHASER IN THE RESALE OR DISTRIBUTION OF SUCH
PRODUCTS."  (FN3) 

UPON RUBEROID'S PETITION FOR REVIEW, THE COURT OF APPEALS AFFIRMED
AND GRANTED ENFORCEMENT OF THE ORDER.  189 F.2D 893.  HOWEVER, ON
REHEARING, THE COURT OF APPEALS AMENDED ITS MANDATE TO STRIKE THAT PART
WHICH DIRECTED ENFORCEMENT.  191 F.2D 294.  WE GRANTED CERTIORARI TO
REVIEW QUESTIONS, IMPORTANT IN THE ADMINISTRATION OF THE CLAYTON ACT,
AS TO THE SCOPE AND ENFORCEMENT OF FEDERAL TRADE COMMISSION ORDERS. 
342 U.S. 917. 

WE FIRST CONSIDER THE CONTENTIONS OF RUBEROID, WHICH ARE MAINLY
ATTACKS UPON THE BREADTH OF THE ORDER.  ORDERS OF THE FEDERAL TRADE
COMMISSION ARE NOT INTENDED TO IMPOSE CRIMINAL PUNISHMENT OR EXACT
COMPENSATORY DAMAGES FOR PAST ACTS, BUT TO PREVENT ILLEGAL PRACTICES IN
THE FUTURE.  IN CARRYING OUT THIS FUNCTION THE COMMISSION IS NOT
LIMITED TO PROHIBITING THE ILLEGAL PRACTICE IN THE PRECISE FORM IN
WHICH IT IS FOUND TO HAVE EXISTED IN THE PAST.  IF THE COMMISSION IS TO
ATTAIN THE OBJECTIVES CONGRESS ENVISIONED, IT CANNOT BE REQUIRED TO
CONFINE ITS ROAD BLOCK TO THE NARROW LANE THE TRANSGRESSOR HAS
TRAVELED; IT MUST BE ALLOWED EFFECTIVELY TO CLOSE ALL ROADS TO THE
PROHIBITED GOAL, SO THAT ITS ORDER MAY NOT BE BY-PASSED WITH IMPUNITY. 
(FN4)  MOREOVER, "THE COMMISSION HAS WIDE DISCRETION IN ITS CHOICE OF A
REMEDY DEEMED ADEQUATE TO COPE WITH THE UNLAWFUL PRACTICES" DISCLOSED. 
JACOB SIEGEL CO. V. FEDERAL TRADE COMM'N, 327 U.S. 608, 611 (1946). 
CONGRESS PLACED THE PRIMARY RESPONSIBILITY FOR FASHIONING SUCH ORDERS
UPON THE COMMISSION, AND CONGRESS EXPECTED THE COMMISSION TO EXERCISE A
SPECIAL COMPETENCE IN FORMULATING REMEDIES TO DEAL WITH PROBLEMS IN THE
GENERAL SPHERE OF COMPETITIVE PRACTICES.  (FN5)  THEREFORE WE HAVE SAID
THAT "THE COURTS WILL NOT INTERFERE EXCEPT WHERE THE REMEDY SELECTED
HAS NO REASONABLE RELATION TO THE UNLAWFUL PRACTICES FOUND TO EXIST." 
ID., AT 613. 

IN THE LIGHT OF THESE PRINCIPLES, WE EXAMINE THE SPECIFIC OBJECTIONS
OF RUBEROID TO THE ORDER IN THIS CASE.  FIRST, IT IS ARGUED THAT THE
ORDER WENT TOO FAR IN PROHIBITING ALL PRICE DIFFERENTIALS BETWEEN
COMPETING PURCHASERS, ALTHOUGH ONLY DIFFERENTIALS OF 5% OR MORE WERE
FOUND.  BUT THE COMMISSION FOUND THAT VERY SMALL DIFFERENCES IN PRICE
WERE MATERIAL FACTORS IN COMPETITION AMONG RUBEROID'S CUSTOMERS, AND
RUBEROID OFFERED NO EVIDENCE TO THE CONTRARY.  IN THIS STATE OF THE
RECORD THE COMMISSION WAS NOT REQUIRED TO LIMIT ITS PROHIBITION TO THE
SPECIFIC DIFFERENTIAL SHOWN TO HAVE BEEN ADOPTED IN PAST VIOLATIONS OF
THE STATUTE.  (FN6)  IN THE ABSENCE OF ANY INDICATION THAT A LESSER
DISCRIMINATION MIGHT NOT AFFECT COMPETITION THERE WAS NO NEED TO AFFORD
AN ESCAPE CLAUSE THROUGH WHICH THE SELLER MIGHT FRUSTRATE THE WHOLE
PURPOSE OF THE PROCEEDINGS AND THE ORDER BY LIMITING FUTURE
DISCRIMINATION TO SOMETHING LESS THAN 5%.  (FN7) 

THE ROOFING MATERIAL CUSTOMERS OF RUBEROID MAY BE CLASSIFIED AS
WHOLESALERS, RETAILERS, AND ROOFING CONTRACTORS OR APPLICATORS.  (FN8)
THE DISCRIMINATIONS FOUND BY THE COMMISSION WERE IN SALES TO RETAILERS
AND APPLICATORS.  THE COMMISSION HELD THAT THERE WAS INSUFFICIENT
EVIDENCE IN THE RECORD TO ESTABLISH DISCRIMINATION AMONG WHOLESALERS,
AS SUCH.  RUBEROID CONTENDS THAT THE ORDER SHOULD HAVE BEEN SIMILARLY
LIMITED TO SALES TO RETAILERS AND APPLICATORS.  BUT THERE WAS AMPLE
EVIDENCE THAT RUBEROID'S CLASSIFICATION OF ITS CUSTOMERS DID NOT FOLLOW
REAL FUNCTIONAL DIFFERENCES.  THUS SOME PURCHASERS WHICH RUBEROID
DESIGNATED AS "WHOLESALERS" AND TO WHICH RUBEROID ALLOWED EXTRA
DISCOUNTS IN FACT COMPETED WITH OTHER PURCHASERS AS APPLICATORS.  AND
THE COMMISSION FOUND THAT SOME PURCHASERS OPERATED AS BOTH WHOLESALERS
AND APPLICATORS.  SO FINDING, THE COMMISSION DISREGARDED THESE
AMBIGUOUS LABELS, WHICH MIGHT BE USED TO CLOAK DISCRIMINATORY DISCOUNTS
TO FAVORED CUSTOMERS, AND STATED ITS ORDER IN TERMS OF "PURCHASERS WHO
IN FACT COMPETE."  THUS STATED, WE THINK THE ORDER IS UNDERSTANDABLE,
REASONABLY RELATED TO THE FACTS SHOWN BY THE EVIDENCE, AND WITHIN THE
BROAD DISCRETION WHICH THE COMMISSION POSSESSES IN DETERMINING
REMEDIES. 

FINALLY, RUBEROID COMPLAINS THAT THE ORDER ENJOINS LAWFUL ACTS BY
FAILING TO EXCEPT FROM ITS PROHIBITIONS DIFFERENTIALS WHICH MERELY MAKE
ALLOWANCE FOR DIFFERENCES IN COST OF MANUFACTURE, SALE OR DELIVERY, OR
WHICH ARE MADE IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A
COMPETITOR.  DIFFERENCES IN PRICE SATISFYING EITHER OF THESE TESTS ARE
PERMITTED BY THE TERMS OF THE ACT.  (FN9) IT IS ARGUED THAT THE
COMMISSION HAS RADICALLY BROADENED ITS PROHIBITORY POWERS THROUGH
FAILURE TO INCLUDE THESE PROVISOS IN THE ORDER.  WE DO NOT THINK SO
BECAUSE WE THINK THE PROVISOS ARE NECESSARILY IMPLICIT IN EVERY ORDER
ISSUED UNDER THE AUTHORITY OF THE ACT, JUST AS IF THE ORDER SET THEM
OUT IN EXTENSO.  ALTHOUGH PREVIOUS COMMISSION ORDERS HAVE INCLUDED
THESE PROVISOS, THEY GAINED NO FORCE BY THAT INCLUSION.  THEIR ABSENCE
CANNOT PRECLUDE THE SELLER FROM DIFFERENTIATING IN PRICE IN A NEW
COMPETITIVE SITUATION INVOLVING DIFFERENT CIRCUMSTANCES WHERE IT CAN
JUSTIFY THE DISCRIMINATION IN ACCORDANCE WITH THE STATUTORY PROVISOS. 
NOR IS THE SELLER REQUIRED TO SEEK MODIFICATION OF THE ORDER EACH TIME,
FOR EXAMPLE, THAT A COMPETITOR'S PRICE REDUCTION REQUIRES IT EITHER TO
LOWER ITS PRICE IN GOOD FAITH TO MEET THE LOWER COMPETING PRICE OR TO
LOSE A FLEETING SALES OPPORTUNITY.  ON THE OTHER HAND, THE IMPLIED
INCLUSION OF THE PROVISOS IN THE ORDER DOES NOT SHIFT FROM THE SELLER
THE BURDEN OF PROOF OF JUSTIFICATION.  (FN10)  NEITHER DOES RECOGNITION
OF THE IMPLICIT AVAILABILITY OF THESE DEFENSES ALLOW THE SELLER TO
RELITIGATE ISSUES ALREADY SETTLED BY PRIOR PROCEEDINGS BEFORE THE
COMMISSION WHICH RESULTED IN AN ORDER THAT WAS AFFIRMED IN THE COURTS. 
IF QUESTIONS OF JUSTIFICATION, CLAIMED UPON THE BASIS OF FACTS RELATING
TO COSTS OR MEETING COMPETITION, HAVE ONCE BEEN FINALLY DECIDED AGAINST
THE SELLER, IT CANNOT AGAIN INTERPOSE THE SAME DEFENSE UPON
SUBSTANTIALLY SIMILAR FACTS WHEN THE COMMISSION SEEKS TO SHOW THAT ITS
ORDER HAS BEEN VIOLATED.  (FN11)  THE SAME RESULT FOLLOWS WHERE THE
EVIDENCE SUPPORTING THE DEFENSE, ALTHOUGH NOT PRODUCED IN THE PREVIOUS
PROCEEDINGS, WAS THEN AVAILABLE TO THE SELLER.  IN SHORT, THE SELLER,
IN CONTESTING ENFORCEMENT OR CONTEMPT PROCEEDINGS, MAY PLEAD ONLY THOSE
FACTS CONSTITUTING STATUTORY JUSTIFICATION WHICH IT HAS NOT HAD A
PREVIOUS OPPORTUNITY TO PRESENT. 

THE SOLE QUESTION PRESENTED BY THE COMMISSION'S PETITION CONCERNS THE
LOWER COURT'S HOLDING, WITH ONE DISSENT, THAT THE COMMISSION COULD NOT
"OBTAIN A DECREE DIRECTING ENFORCEMENT OF AN ORDER ISSUED UNDER THE
CLAYTON ACT IN THE ABSENCE OF SHOWING THAT A VIOLATION OF THE ORDER HAS
OCCURRED OR IS IMMINENT."  (FN12)  THE PERTINENT PARTS OF THE ACT
PROVIDE: 

"IF SUCH PERSON (SUBJECT TO THE ORDER) FAILS OR NEGLECTS TO OBEY SUCH
ORDER OF THE COMMISSION  ...  WHILE THE SAME IS IN EFFECT, THE
COMMISSION  ...  MAY APPLY TO THE CIRCUIT COURT OF APPEALS OF THE
UNITED STATES  ...  FOR THE ENFORCEMENT OF ITS ORDER  ...  .  THE COURT
...  SHALL HAVE POWER TO MAKE AND ENTER  ...  A DECREE AFFIRMING,
MODIFYING, OR SETTING ASIDE THE ORDER OF THE COMMISSION  ...  . 

"ANY PARTY REQUIRED BY SUCH ORDER OF THE COMMISSION  ...  TO CEASE
AND DESIST FROM A VIOLATION CHARGED MAY OBTAIN A REVIEW OF SUCH ORDER
IN SAID CIRCUIT COURT OF APPEALS BY FILING IN THE COURT A WRITTEN
PETITION PRAYING THAT THE ORDER OF THE COMMISSION  ...  BE SET ASIDE
...  .  THE COURT SHALL HAVE THE SAME JURISDICTION TO AFFIRM, SET
ASIDE, OR MODIFY THE ORDER OF THE COMMISSION  ... AS IN THE CASE OF AN
APPLICATION BY THE COMMISSION  ...  FOR THE ENFORCEMENT OF ITS ORDER
...  . 

"THE JURISDICTION OF THE CIRCUIT COURT OF APPEALS OF THE UNITED
STATES TO ENFORCE, SET ASIDE, OR MODIFY ORDERS OF THE COMMISSION  ...
SHALL BE EXCLUSIVE."  (FN13) 

THE COMMISSION ARGUES, FIRST, THAT THE PROVISION AUTHORIZING IT TO
APPLY FOR ENFORCEMENT "IF SUCH PERSON FAILS OR NEGLECTS TO OBEY SUCH
ORDER" IS MERELY "A CONGRESSIONAL DIRECTIVE TO THE COMMISSION AS TO THE
CIRCUMSTANCES UNDER WHICH IT MAY GO INTO COURT TO SEEK ENFORCEMENT,"
WHICH DOES NOT AMOUNT TO A PREREQUISITE TO THE COURT'S GRANTING OF
ENFORCEMENT.  (FN14)  WE CANNOT SUBSCRIBE TO THIS ARGUMENT, WHICH
DISREGARDS THE UNEQUIVOCAL LANGUAGE OF THE STATUTE AND ITS CONSISTENT
INTERPRETATION OVER THE THIRTY-EIGHT-YEAR PERIOD OF ITS EXISTENCE. 
(FN15)  CONGRESS, IN 1938, AMENDED SIMILAR LANGUAGE IN THE FEDERAL
TRADE COMMISSION ACT, SO THAT THE REVIEWING COURT IS NOW PLAINLY
REQUIRED, UPON AFFIRMANCE, TO ENFORCE AN ORDER BASED UPON VIOLATION OF
THAT ACT.  (FN16)  THE COMMISSION HAS REPEATEDLY SOUGHT SIMILAR
AMENDMENT OF THE CLAYTON ACT PROVISIONS INVOLVED IN THIS CASE.  (FN17)
WE WILL NOT NOW ACHIEVE THE SAME RESULT BY REINTERPRETATION IN THE FACE
OF CONGRESS' FAILURE TO PASS THE BILLS THUS BROUGHT BEFORE IT.  (FN18)
EFFECTIVE ENFORCEMENT OF THE CLAYTON ACT BY THE COMMISSION MAY BE
HANDICAPPED BY THE PRESENT PROVISIONS, BUT THAT IS A QUESTION OF POLICY
FOR CONGRESS. 

ALTERNATIVELY, THE COMMISSION ARGUES THAT, EVEN THOUGH DISOBEDIENCE
OF THE ORDER IS A CONDITION TO ENFORCEMENT UPON THE APPLICATION OF THE
COMMISSION, THERE IS NO SUCH CONDITION WHERE THE ORDER COMES BEFORE THE
COURT UPON PETITION FOR REVIEW BY THE AFFECTED PARTY.  THIS ARGUMENT
BEGINS WITH THE DIFFERENCE IN LANGUAGE BETWEEN THE STATUTORY PARAGRAPHS
PROVIDING FOR REVIEW AT THE INSTANCE OF THE RESPECTIVE PARTIES, BUT
CONSIDERATION OF THE SECTION AS A WHOLE CONVINCES US THAT THE MOST THAT
CAN BE SAID FOR THE ARGUMENT IS THAT THE SECTION IS AMBIGUOUS.  WE
THINK THE STATUTORY PREREQUISITE TO ENFORCEMENT APPLIES WHEN THE
COMMISSION SEEKS ENFORCEMENT BY CROSS-PETITION AFTER REVIEW HAS BEEN
SET IN MOTION BY THE PARTY SUBJECT TO THE ORDER AS WELL AS WHEN THE
COMMISSION MAKES THE ORIGINAL APPLICATION.  (FN19)  THERE IS NO REASON
WHY ONE WHO HAS COMPLIED WITH THE ORDER, BUT WHO SEEKS TO HAVE IT
REVIEWED AND MODIFIED OR SET ASIDE, SHOULD BE PLACED IN A WORSE
POSITION THAN ONE WHO DOES NOT EXERCISE THAT RIGHT.  WE DOUBT THAT
CONGRESS INTENDED ITS REQUIREMENT FOR ENFORCEMENT TO DEPEND ENTIRELY
UPON WHICH PARTY GOES TO COURT FIRST.  AFFIRMED. 

FN1  46 F.T.C. 379, 386. 

FN2  38 STAT. 730, AS AMENDED, 49 STAT. 1526, 15 U.S.C. SEC. 13. 

FN3  46 F.T.C. 379, 387. 

FN4  FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37, 51-52
(1948); CF. INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 398
400 (1947). 

FN5  FEDERAL TRADE COMM'N V. CEMENT INSTITUTE, 333 U.S. 683, 726-727
(1948); 38 STAT. 722, 15 U.S.C. SEC. 47. 

FN6  FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37, 51-52
(1948); CF. LABOR BOARD V. EXPRESS PUBLISHING CO., 312 U.S. 426, 436
437 (1941). 

FN7  "TRUE, THE COMMISSION DID NOT MERELY PROHIBIT FUTURE DISCOUNTS,
REBATES, AND ALLOWANCES IN THE EXACT MATHEMATICAL PERCENTAGES
PREVIOUSLY UTILIZED BY RESPONDENT.  HAD THE ORDER DONE NO MORE THAN
THAT, RESPONDENT COULD HAVE CONTINUED SUBSTANTIALLY THE SAME UNLAWFUL
PRACTICES DESPITE THE ORDER BY SIMPLY ALTERING THE DISCOUNT PERCENTAGES
AND THE QUANTITIES OF SALT TO WHICH THE PERCENTAGES APPLIED."  FEDERAL
TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37, 52-53 (1948).  THE
DISCUSSION FOLLOWING THESE WORDS IN THE MORTON SALT CASE, OF CERTAIN
ASPECTS OF THE ORDER IN QUESTION THERE, MANIFESTLY AFFORDS NO SUPPORT
TO RUBEROID'S CONTENTION HERE.  ID., AT 53-54.    FN8  RUBEROID
SUGGESTS A FOURTH CATEGORY OF PURCHASERS - MANUFACTURERS - AND CONTENDS
THAT THE ORDER IS TOO BROAD IN THAT IT PROHIBITS DISCRIMINATION IN
SALES TO THAT GROUP, E.G., IN SALES OF SHINGLES TO COMPETING
MANUFACTURERS OF PREFABRICATED HOUSES.  WE NEED NOT CONSIDER WHETHER
SUCH AN ORDER WOULD BE TOO BROAD BECAUSE WE DO NOT THINK THE ORDER HERE
APPLIES TO SUCH SALES.  BY ITS TERMS, THE ORDER COVERS ONLY SALES TO
THOSE COMPETITIVELY ENGAGED "IN THE RESALE OR DISTRIBUTION OF SUCH
PRODUCTS (I.E., 'ASBESTOS OR ASPHALT ROOFING MATERIALS')," AND NOT
SALES TO THOSE WHO USE ROOFING MATERIALS IN THE FABRICATION OF WHOLLY
NEW AND DIFFERENT PRODUCTS. 

FN9  "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  ...  ."  49
STAT. 1526, 15 U.S.C. SEC. 13(A).  "NOTHING HEREIN CONTAINED SHALL
PREVENT A SELLER REBUTTING THE PRIMA-FACIE CASE THUS MADE BY SHOWING
THAT HIS LOWER PRICE  ...  WAS MADE IN GOOD FAITH TO MEET AN EQUALLY
LOW PRICE OF A COMPETITOR  ...  ."  49 STAT. 1526, 15 U.S.C. SEC.
13(B), STANDARD OIL CO. V. FEDERAL TRADE COMM'N, 340 U.S. 231 (1951). 
RUBEROID DOES NOT COMPLAIN OF THE OMISSION FROM THE ORDER OF THE
STATUTORY PROVISOS RELATING TO THE SELLER'S RIGHT TO SELECT ITS OWN
CUSTOMERS AND TO PRICE CHANGES IN RESPONSE TO CHANGING CONDITIONS
AFFECTING THE MARKET FOR, OR THE MARKETABILITY OF, THE GOODS
CONCERNED.  HENCE WE DO NOT DEAL WITH THOSE DEFENSES HERE. 

FN10  CF. FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37, 44-45
(1948)(COST JUSTIFICATION); FEDERAL TRADE COMM'N V. A.E. STALEY MFG.
CO., 324 U.S. 746 (1945) (MEETING-COMPETITION JUSTIFICATION). 

FN11  WHERE THE COMMISSION SEEKS BOTH AFFIRMANCE AND ENFORCEMENT OF
ITS ORDER IN ONE PROCEEDING, CONTENDING THAT THE SELLER HAS CONTINUED
IN ITS UNLAWFUL PRACTICES SINCE THE ORDER WAS ISSUED, THE COURT, IN
DECIDING WHETHER THE ORDER SHOULD BE AFFIRMED, WILL OF COURSE REVIEW
THE DETERMINATION OF THE COMMISSION IN THE ORDINARY MANNER.  BUT
QUESTIONS THUS SETTLED WILL NOT BE OPEN IN DECIDING WHETHER THE ORDER
HAS BEEN VIOLATED AND SHOULD THEREFORE BE ENFORCED. 

FN12  191 F.2D 294, 295. 

FN13  38 STAT. 735, AS AMENDED, 15 U.S.C. SEC. 21. 

FN14  BRIEF FOR THE FEDERAL TRADE COMMISSION IN NO. 448, P. 16. 

FN15  E.G., FEDERAL TRADE COMM'N V. WHITNEY & CO., 192 F.2D 746 (C.A.
9TH CIR. 1951); FEDERAL TRADE COMM'N V. STANDARD BRANDS, INC., 189 F.2D
510 (C.A. 2D CIR. 1951); FEDERAL TRADE COMM'N V. HERZOG, 150 F.2D 450
(C.A.2D CIR. 1945); FEDERAL TRADE COMM'N V. BALTIMORE PAINT & COLOR
WORKS, 41 F.2D 474 (C.A. 4TH CIR. 1930); FEDERAL TRADE COMM'N V. BALME,
23 F.2D 615 (C.A.2D CIR. 1928); FEDERAL TRADE COMM'N V. STANDARD
EDUCATION SOCIETY, 14 F.2D 947 (C.A. 7TH CIR. 1926).  THE LAST THREE
CASES CITED AROSE UNDER THE FEDERAL TRADE COMMISSION ACT, BUT SINCE THE
CLAYTON ACT PROVISIONS INVOLVED HERE ARE IDENTICAL WITH THE
CORRESPONDING PROVISIONS OF THE FEDERAL TRADE COMMISSION ACT PRIOR TO
1938, 38 STAT. 720, THE DECISIONS MAKE NO DISTINCTION BETWEEN THEM. 

FN16  "TO THE EXTENT THAT THE ORDER OF THE COMMISSION IS AFFIRMED,
THE COURT SHALL THEREUPON ISSUE ITS OWN ORDER COMMANDING OBEDIENCE TO
THE TERMS OF SUCH ORDER OF THE COMMISSION."  52 STAT. 113, 15 U.S.C.
SEC. 45(C).  UNLESS THE PARTY SUBJECT TO AN ORDER ISSUED UNDER
PROVISIONS OF THE FEDERAL TRADE COMMISSION ACT FILES A PETITION FOR
REVIEW WITHIN SIXTY DAYS, THE ORDER BECOMES FINAL AND ITS VIOLATION
PUNISHABLE.  52 STAT. 113-114, 15 U.S.C. SEC. 45(G) AND (L). 

FN17  E.G., ANN. REP. F.T.C. (1951) 7-8; ANN. REP. F.T.C. (1948) 12;
ANN. REP. F.T.C. (1947) 13; ANN. REP. F.T.C. (1946) 12. 

FN18  E.G., H.R. 10176, 75TH CONG., 3D SESS.; H.R. 3402, 81ST CONG.,
1ST SESS. 

FN19  ACCORD, E.G., FEDERAL TRADE COMM'N V. FAIRYFOOT PRODUCTS CO.,
94 F.2D 844 (C.A. 7TH CIR. 1938); BUTTERICK CO. V. FEDERAL TRADE
COMM'N, 4 F.2D 910 (C.A.2D CIR. 1925); L.B. SILVER CO. V. FEDERAL TRADE
COMM'N, 292 F. 752 (C.A. 6TH CIR. 1923). 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND OPINION OF THE COURT,
EXCEPT THAT HE THINKS THE COMMISSION'S ORDER SHOULD EXPRESSLY EXCEPT
FROM ITS PROHIBITIONS DIFFERENTIALS WHICH MERELY MAKE ALLOWANCES FOR
DIFFERENCES IN THE COST OF MANUFACTURE, SALE, OR DELIVERY, OR WHICH ARE
MADE IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR. 

MR. JUSTICE FRANKFURTER, NOT HAVING HEARD THE ARGUMENT, OWING TO
ILLNESS, TOOK NO PART IN THE DISPOSITION OF THIS CASE. 

MR. JUSTICE DOUGLAS DISSENTS FROM THE DENIAL OF ENFORCEMENT OF THE
ORDER. 

MR. JUSTICE JACKSON, DISSENTING IN NO. 504. 

THE FEDERAL TRADE COMMISSION, IN JULY OF 1943, INSTITUTED BEFORE
ITSELF A PROCEEDING AGAINST PETITIONER ON A CHARGE OF DISCRIMINATING IN
PRICE BETWEEN CUSTOMERS IN VIOLATION OF SUBSECTION (A) OF SEC. 2 OF THE
CLAYTON ACT AS AMENDED BY THE ROBINSON-PATMAN ACT, APPROVED JUNE 19,
1936, 15 U.S.C. SEC. 13(A). 

SEVERAL VIOLATIONS WERE PROVED AND ADMITTED TO HAVE OCCURRED IN
1941.  NO SERIOUS OPPOSITION WAS OFFERED TO AN ORDER TO CEASE AND
DESIST FROM SUCH DISCRIMINATIONS, BUT PETITIONER DID OBJECT TO BEING
ORDERED TO CEASE TYPES OF VIOLATIONS IT NEVER HAD BEGUN AND ASKED THAT
ANY ORDER INCLUDE A CLAUSE TO THE EFFECT THAT IT DID NOT FORBID THE
PRICE DIFFERENTIALS BETWEEN CUSTOMERS WHICH ARE EXPRESSLY ALLOWED BY
STATUTE. 

HOWEVER, THE COMMISSION REFUSED TO INCLUDE SUCH A PROVISION AS
"UNNECESSARY TO ASSURE RESPONDENT (PETITIONER HERE) ITS FULL LEGAL
RIGHTS."  IT ALSO REJECTED THE SPECIFIC AND LIMITED ORDER RECOMMENDED
BY ITS EXAMINER AND SUBSTITUTED A SWEEPING GENERAL ORDER TO "CEASE AND
DESIST FROM DISCRIMINATING IN PRICE: BY SELLING SUCH PRODUCTS OF LIKE
GRADE AND QUALITY TO ANY PURCHASER AT PRICES LOWER THAN THOSE GRANTED
OTHER PURCHASERS WHO IN FACT COMPETE WITH THE FAVORED PURCHASER IN THE
RESALE OR DISTRIBUTION OF SUCH PRODUCTS."  IT WROTE NO OPINION AND GAVE
ONLY THE MOST CRYPTIC REASONS IN ITS FINDINGS.  (FN1) 

ON PROCEEDINGS FOR REVIEW, PETITIONER ATTACKED THIS ORDER FOR ITS
INDETERMINATENESS AND ITS PROHIBITION OF DIFFERENTIALS ALLOWED BY
STATUTE.  THE COURT OF APPEALS, HOWEVER, AFFIRMED, SAYING: 

"WE SYMPATHIZE WITH THE PETITIONER'S POSITION AND CAN REALIZE THE
DIFFICULTIES OF CONDUCTING BUSINESS UNDER SUCH GENERAL PROHIBITIONS. 
NEVERTHELESS WE ARE CONVINCED THAT THE CAUSE OF THE TROUBLE IS THE ACT
ITSELF, WHICH IS VAGUE AND GENERAL IN ITS WORDING AND WHICH CANNOT BE
TRANSLATED WITH ASSURANCE INTO ANY DETAILED SET OF GUIDING
YARDSTICKS."  (FN2) 

THIS APPRAISAL OF THE RESULT OF ALMOST TEN YEARS OF LITIGATION
EXPOSES A GRAVE DEFICIENCY EITHER IN THE ACT ITSELF OR IN THE
ADMINISTRATIVE PROCESS BY WHICH IT HAS BEEN APPLIED.  ADMITTING THAT
THE STATUTE IS "VAGUE AND GENERAL IN ITS WORDING," IT DOES NOT FOLLOW
THAT A CEASE AND DESIST ORDER IMPLEMENTING IT SHOULD BE.  I THINK SUCH
AN OUTCOME OF ADMINISTRATIVE PROCEEDINGS IS NOT ACCEPTABLE.  WE WOULD
RECTIFY AND ADVANCE THE ADMINISTRATIVE PROCESS, WHICH HAS BECOME AN
INDISPENSABLE ADJUNCT TO MODERN GOVERNMENT, BY RETURNING THIS CASE TO
THE COMMISSION TO PERFORM ITS MOST USEFUL FUNCTION IN ADMINISTERING AN
ADMITTEDLY COMPLICATED ACT. 

IF THE COURT OF APPEALS WERE CORRECT, IT WOULD MEAN THAT THE
INTERCESSION OF THE ADMINISTRATIVE PROCESS BETWEEN THE CONGRESS AND THE
COURT DOES NOTHING EITHER TO DEFINE PETITIONER'S DUTIES AND LIABILITIES
OR TO IMPOSE SANCTIONS.  CONGRESS MIGHT AS WELL HAVE DECLARED, IN THESE
COMPREHENSIVE TERMS, A DUTY NOT TO DISCRIMINATE AND PROVIDED FOR
PROSECUTION OF VIOLATIONS IN THE COURTS.  THAT, OF COURSE, WOULD IMPOSE
ON THE COURTS THE TASK OF DETERMINING THE MEANING AND APPLICATION OF
THE LAW TO THE FACTS.  BUT THAT IS JUST THE TASK THAT THIS ORDER
IMPOSES UPON THE COURTS IN EVENT OF A CONTEMPT PROCEEDING.  THE COURTS
HAVE DERIVED NO MORE DETAILED "GUIDING YARDSTICKS" FROM THE COMMISSION
THAN FROM CONGRESS.  ON THE CONTRARY, THE ULTIMATE ENFORCEMENT IS
FURTHER CONFUSED BY THE ADMINISTRATIVE PROCEEDING, BECAUSE IT WINDS UP
WITH AN ORDER WHICH LITERALLY FORBIDS WHAT THE ACT EXPRESSLY ALLOWS AND
THUS ADDS TO THE DIFFICULTY OF EVENTUAL SANCTIONS SHOULD THEY BECOME
NECESSARY. 

IF THE UNSOUND RESULT HERE WERE AN ISOLATED EXAMPLE OF MALAISE IN THE
ADMINISTRATIVE SCHEME, ITS TOLERANCE BY THE COURT WOULD BE LESS
TROUBLING, THOUGH NO LESS WRONG.  BUT I THINK ITS DECISION MAY
ENCOURAGE A DETERIORATION OF THE ADMINISTRATIVE PROCESS OF WHICH THIS
CASE IS SYMPTOMATIC AND WHICH INVITES INVASION OF THE INDEPENDENT
AGENCY ADMINISTRATIVE FIELD BY EXECUTIVE AGENCIES.  OTHER SYMPTOMS,
BETOKENING THE SAME BASIC CONFUSION, ARE THE NUMEROUS OCCASIONS WHEN
ADMINISTRATIVE FINDINGS ARE INADEQUATE FOR PURPOSES OF REVIEW AND
RECENT INSTANCES IN WHICH PART OF THE GOVERNMENT APPEARS BEFORE US
FIGHTING ANOTHER PART - USUALLY A WHOLLY EXECUTIVE-CONTROLLED AGENCY
ATTACKING ONE OF THE INDEPENDENT ADMINISTRATIVE AGENCIES - THE
DEPARTMENTS OF AGRICULTURE (SECRETARY OF AGRICULTURE V. UNITED STATES
ET AL., NO. 710, NOW PENDING IN THIS COURT) AND JUSTICE (UNITED STATES
V. INTERSTATE COMMERCE COMMISSION, 337 U.S. 426) AGAINST THE INTERSTATE
COMMERCE COMMISSION, THE DEPARTMENT OF JUSTICE AGAINST THE MARITIME
COMMISSION (FAR EAST CONFERENCE V. UNITED STATES, 342 U.S. 570), THE
SECRETARY OF THE INTERIOR AGAINST THE FEDERAL POWER COMMISSION (UNITED
STATES EX REL. CHAPMAN V. FEDERAL POWER COMMISSION, NO. 658, NOW
PENDING IN THIS COURT, CERTIORARI GRANTED 343 U.S. 941).  ABSTRACT
PROPOSITIONS MAY NOT SOLVE CONCRETE CASES, BUT, WHEN BASIC CONFUSION IS
RESPONSIBLE FOR A PARTICULAR RESULT, RESORT TO THE FUNDAMENTAL
PRINCIPLES WHICH DETERMINE THE POSITION OF THE ADMINISTRATIVE PROCESS
IN OUR SYSTEM MAY HELP TO ILLUMINATE THE SHORTCOMINGS OF THAT RESULT. 

                         I. 

THE ACT, LIKE MANY REGULATORY MEASURES, SKETCHES A GENERAL OUTLINE
WHICH CONTEMPLATES ITS COMPLETION AND CLARIFICATION BY THE
ADMINISTRATIVE PROCESS BEFORE COURT REVIEW OR ENFORCEMENT. 

THIS SECTION OF THE ACT ADMITTEDLY IS COMPLICATED AND VAGUE IN ITSELF
AND EVEN MORE SO IN ITS CONTEXT.  INDEED, THE COURT OF APPEALS SEEMS TO
HAVE THOUGHT IT ALMOST BEYOND UNDERSTANDING.  BY THE ACT, NOTHING IS
COMMANDED TO BE DONE OR OMITTED UNCONDITIONALLY, AND NO CONDUCT OR
OMISSION IS PER SE PUNISHABLE.  THE COMMERCIAL DISCRIMINATIONS WHICH IT
FORBIDS ARE THOSE ONLY WHICH MEET THREE STATUTORY CONDITIONS AND
SURVIVE THE TEST OF FIVE STATUTORY PROVISOS.  TO DETERMINE WHICH OF ITS
OVER-LAPPING AND CONFLICTING POLICIES SHALL GOVERN A PARTICULAR CASE
INVOLVES INQUIRY INTO GRADES AND QUALITIES OF GOODS, DISCRIMINATIONS
AND THEIR ECONOMIC EFFECTS ON INTERSTATE COMMERCE, COMPETITION BETWEEN
CUSTOMERS, THE ECONOMIC EFFECT OF PRICE DIFFERENTIALS TO LESSEN
COMPETITION OR TEND TO CREATE A MONOPOLY, ALLOWANCE FOR DIFFERENCES IN
COST OF MANUFACTURING, SALE OR DELIVERY AND GOOD FAITH IN MEETING OF
THE PRICE, SERVICES OR FACILITIES OF COMPETITORS. 

THIS ACT EXEMPLIFIES THE COMPLEXITY OF THE MODERN LAWMAKING TASK AND
A COMMON TECHNIQUE FOR REGULATORY LEGISLATION.  IT IS TYPICAL OF
INSTANCES WHERE THE CONGRESS CANNOT ITSELF MAKE EVERY CHOICE BETWEEN
POSSIBLE LINES OF POLICY.  IT MUST LEGISLATE IN GENERALITIES AND
DELEGATE THE FINAL DETAILED CHOICES TO SOME AUTHORITY WITH CONSIDERABLE
LATITUDE TO CONFORM ITS ORDERS TO ADMINISTRATIVE AS WELL AS LEGISLATIVE
POLICIES. 

THE LARGE IMPORTANCE THAT POLICY AND EXPERTISE WERE EXPECTED TO PLAY
IN REDUCING THIS ACT TO "GUIDING YARDSTICKS" IS EVIDENCED BY THE FACT
THAT AUTHORITY TO ENFORCE THE SECTION IS NOT CONFIDED TO A SINGLE BODY
FOR ALL INDUSTRIES BUT IS DISPERSED AMONG FOUR ADMINISTRATIVE AGENCIES
WHICH DEAL WITH SPECIAL TYPES OF COMMERCE BESIDES THE FEDERAL TRADE
COMMISSION.  (FN3) 

A SELLER MAY VIOLATE THIS SECTION OF THE ACT WITHOUT GUILTY KNOWLEDGE
OR INTENT AND MAY UNWITTINGLY SUBJECT HIMSELF TO A CEASE AND DESIST
ORDER.  BUT NEITHER VIOLATION OF THE ACT NOR OF THE ORDER WILL CALL FOR
CRIMINAL SANCTIONS; NEITHER IS EVEN ENFORCEABLE ON BEHALF OF THE UNITED
STATES BY INJUNCTION UNTIL AFTER AN ADMINISTRATIVE PROCEEDING HAS
RESULTED IN A CEASE AND DESIST ORDER AND IT HAS BEEN REVIEWED AND
AFFIRMED, IF REVIEW BE SOUGHT, BY THE COURT OF APPEALS.  ONLY AN
ENFORCEMENT ORDER ISSUED FROM THE COURT CARRIES PUBLIC SANCTIONS, (FN4)
AND ITS VIOLATION IS PUNISHABLE AS A CONTEMPT. 

THUS CONGRESS, IN THIS ACT, HAS REFRAINED FROM IMPOSITION OF AN
UNCONDITIONAL DUTY DIRECTLY ENFORCEABLE BY THE GOVERNMENT THROUGH CIVIL
OR CRIMINAL PROCEEDINGS IN COURT, AS IT HAS IN THE SHERMAN ANTITRUST
ACT AND THE WILSON TARIFF ACT OF 1894.  (FN5)  IT HAS CAREFULLY KEPT
SUCH CASES AS THIS OUT OF THE COURTS AND HAS SHIELDED A VIOLATOR FROM
ANY PENALTY UNTIL THE ADMINISTRATIVE TRIBUNAL HANDS DOWN A DEFINITIVE
ORDER.  THE DIFFERENCE IS ACCENTED BY ANOTHER SECTION OF THE ROBINSON
PATMAN ACT WHICH DOES MAKE PARTICIPATION BY ANY PERSON IN SPECIFIED
TRANSACTIONS WHICH DISCRIMINATE "TO HIS KNOWLEDGE" A CRIMINAL VIOLATION
JUDICIALLY PUNISHABLE.  (FN6) 

IT MAY HELP CLARIFY THE PROPER ADMINISTRATIVE FUNCTION IN SUCH CASES
TO THINK OF THE LEGISLATION AS UNFINISHED LAW WHICH THE ADMINISTRATIVE
BODY MUST COMPLETE BEFORE IT IS READY FOR APPLICATION.  (FN7)  IN A
VERY REAL SENSE THE LEGISLATION DOES NOT BRING TO A CLOSE THE MAKING OF
THE LAW.  THE CONGRESS IS NOT ABLE OR WILLING TO FINISH THE TASK OF
PRESCRIBING A POSITIVE AND PRECISE LEGAL RIGHT OR DUTY BY ELIMINATING
ALL FURTHER CHOICE BETWEEN POLICIES, EXPEDIENCES OR CONFLICTING GUIDES,
AND SO LEAVES THE ROUNDING OUT OF ITS COMMAND TO ANOTHER, SMALLER AND
SPECIALIZED AGENCY. 

IT IS CHARACTERISTIC OF SUCH LEGISLATION THAT IT DOES NOT UNDERTAKE
TO DECLARE AN END RESULT IN PARTICULAR CASES BUT RATHER UNDERTAKES TO
CONTROL THE PROCESSES IN THE ADMINISTRATOR'S MIND BY WHICH HE SHALL
REACH RESULTS.  BECAUSE CONGRESS CANNOT PREDETERMINE THE WEIGHT AND
EFFECT OF THE PRESENCE OR ABSENCE OF ALL OF THE COMPETING
CONSIDERATIONS OR CONDITIONS WHICH SHOULD INFLUENCE DECISIONS
REGULATING MODERN BUSINESS, IT ATTEMPTS NO MORE THAN TO INDICATE
GENERALLY THE OUTSIDE LIMITS OF THE ULTIMATE RESULT AND TO SET OUT
MATTERS ABOUT WHICH THE ADMINISTRATOR MUST THINK WHEN HE IS DETERMINING
WHAT WITHIN THOSE CONFINES THE COMPULSION IN A PARTICULAR CASE IS TO
BE.    SUCH LEGISLATION DOES NOT CONFER ON ANY OF THE PARTIES IN
INTEREST THE RIGHT TO A PARTICULAR RESULT, NOR EVEN TO WHAT WE MIGHT
THINK OUGHT TO BE THE CORRECT ONE, BUT IT GIVES THEM THE RIGHT TO A
PROCESS FOR DETERMINING THESE RIGHTS AND DUTIES.  MONTANA-DAKOTA
UTILITIES CO. V. NORTHWESTERN PUBLIC SERVICE CO., 341 U.S. 246, 251;
PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194, 195.    SUCH
LEGISLATION REPRESENTS INCHOATE LAW IN THE SENSE THAT IT DOES NOT LAY
DOWN RULES WHICH CALL FOR IMMEDIATE COMPLIANCE ON PAIN OF PUNISHMENT BY
JUDICIAL PROCESS.  THE INTERVENTION OF ANOTHER AUTHORITY MUST MATURE
AND PERFECT AN EFFECTIVE RULE OF CONDUCT BEFORE ONE IS SUBJECT TO
COERCION.  THE STATUTE, IN ORDER TO RULE ANY INDIVIDUAL CASE, REQUIRES
AN ADDITIONAL EXERCISE OF DISCRETION AND THAT LAST TOUCH OF SELECTION
WHICH NEITHER THE PRIMARY LEGISLATOR NOR THE REVIEWING COURT CAN
SUPPLY.  THE ONLY REASON FOR THE INTERVENTION OF AN ADMINISTRATIVE BODY
IS TO EXERCISE A GRANT OF UNEXPENDED LEGISLATIVE POWER TO WEIGH WHAT
THE LEGISLATURE WANTS WEIGHED, TO REDUCE CONFLICTING ABSTRACT POLICIES
TO A CONCRETE NET REMAINDER OF DUTY OR RIGHT.  THEN, AND THEN ONLY, DO
WE HAVE A COMPLETED EXPRESSION OF THE LEGISLATIVE WILL, IN AN
ADMINISTRATIVE ORDER WHICH WE MAY CALL A SORT OF SECONDARY LEGISLATION,
READY TO BE ENFORCED BY THE COURTS. 

                                       II. 

THE CONSTITUTIONAL INDEPENDENCE OF THE ADMINISTRATIVE TRIBUNAL
PRESUPPOSES THAT IT WILL PERFORM THE FUNCTION OF COMPLETING UNFINISHED
LAW. 

THE RISE OF ADMINISTRATIVE BODIES PROBABLY HAS BEEN THE MOST
SIGNIFICANT LEGAL TREND OF THE LAST CENTURY AND PERHAPS MORE VALUES
TODAY ARE AFFECTED BY THEIR DECISIONS THAN BY THOSE OF ALL THE COURTS,
REVIEW OF ADMINISTRATIVE DECISIONS APART.  THEY ALSO HAVE BEGUN TO HAVE
IMPORTANT CONSEQUENCES ON PERSONAL RIGHTS.  CF. UNITED STATES V.
SPECTOR, 343 U.S. 169.  THEY HAVE BECOME A VERITABLE FOURTH BRANCH OF
THE GOVERNMENT, WHICH HAS DERANGED OUR THREE-BRANCH LEGAL THEORIES MUCH
AS THE CONCEPT OF A FOURTH DIMENSION UNSETTLES OUR THREE-DIMENSIONAL
THINKING. 

COURTS HAVE DIFFERED IN ASSIGNING A PLACE TO THESE SEEMINGLY
NECESSARY BODIES IN OUR CONSTITUTIONAL SYSTEM.  ADMINISTRATIVE AGENCIES
HAVE BEEN CALLED QUASI-LEGISLATIVE, QUASI-EXECUTIVE OR QUASI-JUDICIAL,
AS THE OCCASION REQUIRED, IN ORDER TO VALIDATE THEIR FUNCTIONS WITHIN
THE SEPARATION-OF-POWERS SCHEME OF THE CONSTITUTION.  THE MERE RETREAT
TO THE QUALIFYING "QUASI" IS IMPLICIT WITH CONFESSION THAT ALL
RECOGNIZED CLASSIFICATIONS HAVE BROKEN DOWN, AND "QUASI" IS A SMOOTH
COVER WHICH WE DRAW OVER OUR CONFUSION AS WE MIGHT USE A COUNTERPANE TO
CONCEAL A DISORDERED BED. 

THE PERFECT EXAMPLE IS THE FEDERAL TRADE COMMISSION ITSELF.  BY THE
DOCTRINE THAT IT EXERCISES LEGISLATIVE DISCRETIONS AS TO POLICY IN
COMPLETING AND PERFECTING THE LEGISLATIVE PROCESS, IT HAS ESCAPED
EXECUTIVE DOMINATION ON THE ONE HAND AND BEEN EXEMPTED IN LARGE MEASURE
FROM JUDICIAL REVIEW ON THE OTHER.  IF ALL IT HAS TO DO IS TO ORDER THE
LITERAL STATUTE FAITHFULLY EXECUTED, IT WOULD EXERCISE A FUNCTION
CONFIDED EXCLUSIVELY TO THE PRESIDENT AND WOULD BE SUBJECT TO HIS
CONTROL.  CF. MYERS V. UNITED STATES, 272 U.S. 52; U.S. CONST., ART.
II, SECS. 1, 3.  THIS COURT SAVED IT FROM EXECUTIVE DOMINATION ONLY BY
RECOURSE TO THE DOCTRINE THAT "IN ADMINISTERING THE PROVISIONS OF THE
STATUTE IN RESPECT OF 'UNFAIR METHODS OF COMPETITION' - THAT IS TO SAY
IN FILLING IN AND ADMINISTERING THE DETAILS EMBODIED BY THAT GENERAL
STANDARD - THE COMMISSION ACTS IN PART QUASI-LEGISLATIVELY AND IN PART
QUASI-JUDICIALLY."  HUMPHREY'S EXECUTOR V. UNITED STATES, 295 U.S. 602,
628. 

WHEN CONGRESS ENACTS A STATUTE THAT IS COMPLETE IN POLICY ASPECTS AND
READY TO BE EXECUTED AS LAW, CONGRESS HAS RECOGNIZED THAT ENFORCEMENT
IS ONLY AN EXECUTIVE FUNCTION AND HAS YIELDED THAT DUTY TO WHOLLY
EXECUTIVE AGENCIES, EVEN THOUGH DETERMINATION OF FACT QUESTIONS WAS
NECESSARY.  (FN8) EXAMPLES OF THE CREATION OF SUCH RIGHTS AND
OBLIGATIONS ARE PATENT, REVENUE AND CUSTOMS LAWS.  ONLY WHERE THE LAW
IS NOT YET CLEAR OF POLICY ELEMENTS AND THEREFORE NOT READY FOR MERE
EXECUTIVE ENFORCEMENT IS IT WITHDRAWN FROM THE EXECUTIVE DEPARTMENT AND
CONFIDED TO INDEPENDENT TRIBUNALS.  IF THE TRIBUNAL TO WHICH SUCH
DISCRETION IS DELEGATED DOES NOTHING BUT PROMULGATE AS ITS OWN DECISION
THE GENERALITIES OF ITS STATUTORY CHARTER, THE RATIONALE FOR PLACING IT
BEYOND EXECUTIVE CONTROL IS GONE. 

          III. 

THE QUASI-LEGISLATIVE FUNCTION OF FILLING IN BLANK SPACES IN
REGULATORY LEGISLATION AND RECONCILING CONFLICTING POLICY STANDARDS
MUST NEITHER BE PASSED ON TO THE COURTS NOR ASSUMED BY THEM. 

THAT THE WORK OF A COMMISSION IN TRANSLATING AN ABSTRACT STATUTE INTO
A CONCRETE CEASE AND DESIST ORDER IN LARGE MEASURE ESCAPES JUDICIAL
REVIEW BECAUSE OF ITS LEGISLATIVE CHARACTER IS AN AXIOM OF
ADMINISTRATIVE LAW, AS THE COURT'S DECISION HEREIN SHOWS.  IN
DELEGATING THE FUNCTION OF FILLING OUT THE LEGISLATIVE WILL IN
PARTICULAR CASES, CONGRESS MUST NOT LEAVE THE STATUTE TOO EMPTY OF
MEANING.  COURTS LOOK TO ITS STANDARDS TO SEE WHETHER THE COMMISSION'S
RESULT IS WITHIN THE PRESCRIBED TERMS OF REFERENCE, WHETHER THE
SECONDARY LEGISLATION PROPERLY DERIVES FROM THE PRIMARY LEGISLATION. 

THEN, TOO, WE LOOK TO ADMINISTRATIVE FINDINGS, NOT TO RECONSIDER
THEIR JUSTIFICATION, BUT TO LEARN WHETHER THE PARTIES HAVE HAD THE
PROCESS OF DETERMINATION TO WHICH THE STATUTE HAS ENTITLED THEM AND
WHETHER THE COMMISSION HAS THOUGHT ABOUT - OR AT LEAST HAS WRITTEN
ABOUT - ALL FACTORS WHICH CONGRESS DIRECTED IT TO CONSIDER IN
TRANSLATING UNFINISHED LEGISLATION INTO A "DETAILED SET OF GUIDING
YARDSTICKS" THAT BECOMES LAW OF THE CASE FOR PARTIES AND COURTS. 
(FN9) 

HOWEVER, A DETERMINATION BY AN INDEPENDENT AGENCY, WITH "QUASI
LEGISLATIVE" DISCRETION IN ITS ARMORY, HAS A MUCH LARGER IMMUNITY FROM
JUDICIAL REVIEW THAN DOES A DETERMINATION BY A PURELY EXECUTIVE
AGENCY.  THE COURT, IN REVIEW OF A CASE UNDER THE TAX LAW OR THE PATENT
LAW, WHERE THE LEGISLATIVE FUNCTION HAS BEEN EXHAUSTED AND POLICY
CONSIDERATIONS ARE SETTLED IN THE ACTS THEMSELVES, FOLLOWS THE SAME
MENTAL OPERATION AS THE EXECUTIVE OFFICER.  ON THE FACTS, THERE RESULTS
AN OBLIGATION TO PAY TAX, OR THERE IS A RIGHT TO A PATENT.  THE COURT
CAN DEDUCE THESE LEGAL RIGHTS OR OBLIGATIONS FROM THE STATUTE IN THE
SAME MANNER AS THE EXECUTIVE OFFICER.  HENCE, REVIEW OF SUCH EXECUTIVE
DECISIONS PROCEEDS WITH NO MORE DEFERENCE TO THE ADMINISTRATIVE
JUDGMENT THAN TO A DECISION OF A LOWER COURT. 

VERY DIFFERENT, HOWEVER, IS THE REVIEW OF THE "QUASI-LEGISLATIVE"
DECISION.  THERE THE RIGHT OR LIABILITY OF THE PARTIES IS NOT
DETERMINED BY MERE APPLICATION OF STATUTE TO THE FACTS.  THE RIGHT OR
OBLIGATION RESULTS NOT MERELY FROM THE ABSTRACT EXPRESSION OF THE WILL
OF CONGRESS IN THE STATUTE, BUT FROM THE COMMISSION'S COMPLETION AND
CONCRETIZATION OF THAT WILL IN ITS ORDER.  CF. MONTANA-DAKOTA CO. V.
NORTHWESTERN PUBLIC SERVICE CO., SUPRA, 251; PHELPS DODGE CORP. V.
LABOR BOARD, SUPRA. 

ON REVIEW, THE COURT DOES NOT DECIDE WHETHER THE CORRECT DETERMINATION
HAS BEEN REACHED.  SO FAR AS THE COURT IS CONCERNED, A WIDE RANGE OF
RESULTS MAY BE EQUALLY CORRECT.  IN REVIEW OF SUCH A DECISION, THE
COURT DOES NOT AT ALL FOLLOW THE SAME MENTAL PROCESSES AS THE
COMMISSION DID IN MAKING IT, FOR THE JUDICIAL FUNCTION EXCLUDES (IN
THEORY, AT LEAST) THE POLICY-MAKING OR LEGISLATIVE ELEMENT, WHICH
RIGHTFULLY INFLUENCES THE COMMISSION'S JUDGMENT BUT OVER WHICH JUDICIAL
POWER DOES NOT EXTEND.  SINCE IT IS DIFFICULT FOR A COURT TO DETERMINE
FROM THE RECORD WHERE QUASI-LEGISLATIVE POLICY MAKING HAS STOPPED AND
QUASI-JUDICIAL APPLICATION OF POLICY HAS BEGUN, THE ENTIRE PROCESS
ESCAPES VERY PENETRATING SCRUTINY.  CF. FEDERAL POWER COMMISSION V.
HOPE NATURAL GAS CO., 320 U.S. 591. 

COURTS ARE NO BETTER EQUIPPED TO HANDLE POLICY QUESTIONS AND NO MORE
EMPOWERED TO EXERCISE LEGISLATIVE DISCRETION ON CONTEMPT PROCEEDINGS
THAN ON REVIEW PROCEEDINGS.  IT IS PLAIN THAT, IF THE SCHEME OF
REGULATING COMPLICATED ENTERPRISES THROUGH UNFINISHED LEGISLATION IS TO
BE JUST AND EFFECTIVE, WE MUST INSIST THAT THE LEGISLATIVE FUNCTION BE
PERFORMED AND EXHAUSTED BY THE ADMINISTRATIVE BODY BEFORE THE CASE IS
PASSED ON TO THE COURTS. 

             IV. 

THIS PROCEEDING SHOULD BE REMANDED FOR A MORE DEFINITIVE AND
CIRCUMSCRIBED ORDER. 

RETURNING TO THIS CASE, I CANNOT FIND THAT TEN YEARS OF LITIGATION
HAVE SERVED ANY USEFUL PURPOSE WHATEVER.  NO DOUBT IT IS
ADMINISTRATIVELY CONVENIENT TO BLANKET AN INDUSTRY UNDER A
COMPREHENSIVE PROHIBITION IN BULK - AN UNDISCRIMINATING PROHIBITION OF
DISCRIMINATION.  BUT THIS NOT ONLY FAILS TO GIVE THE PRECISION AND
CONCRETENESS OF LEGAL DUTIES TO THE ABSTRACT POLICIES OF THE ACT, IT
REALLY PROMULGATES AN INACCURATE PARTIAL PARAPHRASE OF ITS
INDETERMINATE GENERALITIES.  INSTEAD OF COMPLETING THE LEGISLATION BY
AN ORDER WHICH WILL CLARIFY THE PETITIONER'S DUTY, IT CONFOUNDS
CONFUSION BY LITERALLY ORDERING IT TO CEASE WHAT THE STATUTE PERMITS IT
TO DO. 

THIS COURT AND THE COURT BELOW DEFER SOLUTION OF THE PROBLEMS
INHERENT IN SUCH AN ORDER, ON THE THEORY THAT IF PETITIONER OFFENDS
AGAIN THERE MAY BE AN ENFORCEMENT ORDER, AND IF IT THEN OFFENDS AGAIN
THERE MAY BE A CONTEMPT PROCEEDING AND THAT WILL BE TIME ENOUGH FOR THE
COURT TO DECIDE WHAT THE ORDER AGAINST THE BACKGROUND OF THE ACT REALLY
MEANS.  WHILE I THINK THIS LESS THAN JUSTICE, I AM NOT GREATLY
CONCERNED ABOUT WHAT THE COURT'S DECISION DOES TO THIS INDIVIDUAL
PETITIONER, FOR WHOM I FORESEE NO DANGER MORE SERIOUS THAN ENDLESS
LITIGATION.  BUT I AM CONCERNED ABOUT WHAT IT DOES TO ADMINISTRATIVE
LAW. 

TO LEAVE DEFINITION OF THE DUTIES CREATED BY AN ORDER TO A CONTEMPT
PROCEEDING IS FOR THE COURTS TO END WHERE THEY SHOULD BEGIN. 
INJUNCTIONS ARE ISSUED TO BE OBEYED, EVEN WHEN JUSTIFICATION TO ISSUE
THEM MAY BE DEBATABLE.  UNITED STATES V. UNITED MINE WORKERS, 330 U.S.
258, 289 ET SEQ., 307.  BUT IN THIS CASE ISSUES THAT SEEM FAR FROM
FRIVOLOUS AS TO WHAT IS FORBIDDEN ARE RESERVED FOR DETERMINATION WHEN
PUNISHMENT FOR DISOBEDIENCE IS SOUGHT.  THE COURT HOLDS THAT SOME
MODIFICATIONS ARE "IMPLICIT" IN THIS ORDER.  WHY SHOULD THEY NOT BE
MADE EXPLICIT?  WHY APPROVE AN ORDER WHOSE LITERAL TERMS WE KNOW GO
BEYOND THE AUTHORIZATION, ON THE THEORY THAT ITS EXCESSES MAY BE
RETRACTED IF EVER IT NEEDS ENFORCEMENT?  WHY INVITE JUDICIAL INDULGENCE
TOWARD VIOLATION BY FAILURE TO BE SPECIFIC, POSITIVE AND CONCRETE? 

IT DOES NOT IMPRESS ME AS LAWYERLY PRACTICE TO LEAVE TO A CONTEMPT
PROCEEDING THE CLARIFICATION OF THE RECIPROCAL EFFECTS OF THIS ACT AND
ORDER, AND DETERMINATION OF THE EFFECT OF STATUTORY PROVISOS WHICH ARE
THEN TO BE READ INTO THE ORDER.  THE COURTS CANNOT AND SHOULD NOT
ASSUME THAT FUNCTION.  IT IS, BY OUR OWN DOCTRINE, A LEGISLATIVE OR
"QUASI-LEGISLATIVE" FUNCTION, AND THE COURTS CANNOT TAKE OVER THE
DISCRETIONARY FUNCTIONS OF THE COMMISSION WHICH SHOULD ENTER INTO ITS
DETERMINATIONS.  PLAINLY THIS ORDER IS NOT IN SHAPE TO ENFORCE AND DOES
NOT BECOME SO BY THE COURT'S AFFIRMANCE. 

THIS PROCEEDING SHOULD BE REMANDED TO THE COMMISSION WITH DIRECTIONS
TO MAKE ITS ORDER SPECIFIC AND CONCRETE, TO SPECIFY THE TYPES OF
DISCOUNT WHICH ARE FORBIDDEN AND RESERVE TO PETITIONER THE RIGHTS WHICH
THE STATUTE ALLOWS IT, UNLESS THEY ARE DEEMED LOST, FORFEITED OR
IMPAIRED BY THE VIOLATIONS, IN WHICH CASE ANY LIMITATION SHOULD BE SET
FORTH.  THE COMMISSION SHOULD, IN SHORT, IN THE LIGHT OF ITS OWN POLICY
AND THE RECORD, TRANSLATE THIS ACT INTO A "SET OF GUIDING YARDSTICKS,"
ADMITTEDLY NOW LACKING.  IF THAT CANNOT BE DONE, THERE SHOULD BE NO
JUDICIAL APPROVAL FOR AN ORDER TO CEASE AND DESIST FROM WE DON'T KNOW
WHAT. 

IF THAT WERE DONE, I SHOULD BE INCLINED TO ACCEPT THE GOVERNMENT'S
ARGUMENT THAT, ALONG WITH AFFIRMANCE, ENFORCEMENT MAY BE ORDERED.  I
SEE NO REAL SENSE, WHEN THE CASE IS ALREADY BEFORE THE COURT AND IS
APPROVED, IN REQUIRING ONE MORE VIOLATION BEFORE ITS OBEDIENCE WILL BE
MADE MANDATORY ON PAIN OF CONTEMPT.  BUT, AS THIS ORDER STANDS, I AM
NOT SURPRISED THAT ENFORCEMENT SHOULD BE LEFT TO SOME LATER GENERATION
OF JUDGES. 

FN1  A COMPREHENSIVE STUDY HAS POINTED OUT THE EARLY FAILURE OF THIS
COMMISSION (AND IT APPLIES AS WELL TO OTHERS) TO CLARIFY AND DEVELOP
THE LAW AND THEREBY AVOID LITIGATION BY CAREFUL PUBLISHED OPINIONS. 
HENDERSON, THE FEDERAL TRADE COMMISSION, 334. 

FN2  RUBEROID CO. V. FEDERAL TRADE COMMISSION, 189 F.2D 893, 894. 

FN3  15 U.S.C. SEC. 21 VESTS ENFORCEMENT IN THE INTERSTATE COMMERCE
COMMISSION WHERE APPLICABLE TO CERTAIN REGULATED COMMON CARRIERS; IN
THE FEDERAL COMMUNICATIONS COMMISSION AS TO WIRE AND RADIO
COMMUNICATIONS; CIVIL AERONAUTICS BOARD AS TO AIR CARRIERS; FEDERAL
RESERVE BOARD AS TO BANKS, ETC., AND FEDERAL TRADE COMMISSION AS TO ALL
OTHER TYPES OF COMMERCE. 

FN4  15 U.S.C. SEC. 21. 

FN5  15 U.S.C. SECS. 1-4, 8, 9. 

FN6  15 U.S.C. SEC. 13A. 

FN7  FOR EMPHASIS AND APPRECIATION OF THIS CONCEPT OF AMERICAN
ADMINISTRATIVE LAW AND OF THE FUNCTION OF THE ADMINISTRATIVE TRIBUNAL
AS WE HAVE EVOLVED IT, I AM INDEBTED TO AN UNPUBLISHED TREATISE BY DR.
ROBERT F. WEISSENSTEIN, WHOSE VIENNESE AND EUROPEAN BACKGROUND,
EDUCATION AND PRACTICE GAVE HIM A PERSPECTIVE ATTAINED WITH DIFFICULTY
BY US WHO ARE SO ACCUSTOMED TO OUR OWN PROCESS. 

LORD CHANCELLOR HERSCHELL HAS EMPLOYED A DIFFERENT BUT EFFECTIVE
FIGURE.  "THE TRUTH IS," SAID HE, "THE LEGISLATION IS A SKELETON PIECE
OF LEGISLATION LEFT TO BE FILLED UP IN ALL ITS SUBSTANTIAL AND MATERIAL
PARTICULARS BY THE ACTION OF RULES TO BE MADE BY THE BOARD OF TRADE. 
...  IT WAS THE INTENTION OF THE LEGISLATURE, HAVING EXPRESSED THE
GENERAL OBJECT, AND HAVING PROVIDED THE NECESSARY PENALTY, TO LEAVE THE
SUBORDINATE LEGISLATION, SO TO SPEAK, TO BE CARRIED OUT BY THE BOARD OF
TRADE."  INSTITUTE OF PATENT AGENTS V. LOCKWOOD, (1894) A.C. 347, 356
357.    FOR AN EXCELLENT STUDY OF ENGLISH "DELEGATED LEGISLATION TODAY"
SEE WILLIS, PARLIAMENTARY POWERS OF ENGLISH GOVERNMENT DEPARTMENTS, C.
II, P. 47.  FOR THE EXTENT TO WHICH THIS SYSTEM HAS BEEN USED IN
ENGLAND, SEE LORD MACMILLAN, LOCAL GOVERNMENT LAW AND ADMINISTRATION IN
ENGLAND AND WALES, VOL. I, PREFACE.    FN8  THE LEGISLATIVE HISTORY OF
THE FAIR LABOR STANDARDS ACT, 29 U.S.C. SEC. 201 ET SEQ., EXEMPLIFIES
THE CHOICE WHICH CONGRESS MUST MAKE BETWEEN ITSELF COMPLETING THE
LEGISLATION, AND DELEGATING THE COMPLETION TO AN ADMINISTRATIVE
AGENCY.  H.R. REP. NO. 2738, 75TH CONG., 3D SESS., SETS FORTH A SUMMARY
OF BOTH THE HOUSE BILL AND THE SENATE BILL.  THE SENATE BILL PROVIDED
FOR THE CREATION OF A LABOR STANDARDS BOARD COMPOSED OF FIVE MEMBERS,
WHICH WAS EMPOWERED TO DECLARE FROM TIME TO TIME, FOR SUCH OCCUPATIONS
AS ARE BROUGHT WITHIN THE BILL, MINIMUM WAGES "WHICH SHALL BE AS NEARLY
ADEQUATE AS ECONOMICALLY FEASIBLE WITHOUT CURTAILING OPPORTUNITY FOR
EMPLOYMENT, TO MAINTAIN A MINIMUM STANDARD OF LIVING NECESSARY FOR
HEALTH, EFFICIENCY, AND GENERAL WELL-BEING  ...  " BUT NOT IN EXCESS OF
40 CENTS PER HOUR.  ID., AT 15.  SIMILAR PROVISIONS EMPOWERED THE BOARD
TO DETERMINE MAXIMUM HOURS, PROVIDED THAT IN NO CASE SHOULD THE MAXIMUM
BE SET AT LESS THAN 40 HOURS.  ID., AT 16.  LIKEWISE, THE BOARD WAS
EMPOWERED TO REQUIRE THE ELIMINATION OF SUBSTANDARD LABOR CONDITIONS. 
ID., AT 17. 

THE HOUSE BILL, ON THE OTHER HAND, ITSELF LAID DOWN THE MINIMUM WAGE
AND MAXIMUM HOUR REQUIREMENTS, ID., 22-23, AND GAVE TO THE SECRETARY OF
LABOR DISCRETION ONLY TO DETERMINE WHICH INDUSTRIES WERE WITHIN THE
TERMS OF THE LAW, PLUS THE POWER TO INVESTIGATE COMPLIANCE WITH THE
LAW.  ID., AT 23.  THE ACT AS ULTIMATELY ADOPTED FOLLOWED THE HOUSE
BILL; ALTHOUGH THERE WAS CREATED THE OFFICE OF ADMINISTRATOR OF THE
WAGE AND HOUR DIVISION IN THE DEPARTMENT OF LABOR, THE ADMINISTRATOR
WAS GIVEN DISCRETION ONLY IN MINOR MATTERS RELATING TO THE
APPLICABILITY OF THE CONGRESSIONAL STANDARDS.  52 STAT. 1060, 29 U.S.C.
SEC. 201 ET SEQ. 

THE ADMINISTRATION FAVORED THE PLAN OF DELEGATING LEGISLATIVE
DISCRETION TO AN INDEPENDENT ADMINISTRATIVE BODY TO APPLY GENERAL
STANDARDS TO CONCRETE CASES.  SEE TESTIMONY OF SECRETARY OF LABOR
FRANCES PERKINS, JOINT HEARINGS BEFORE THE SENATE COMMITTEE ON
EDUCATION AND LABOR AND THE HOUSE COMMITTEE ON LABOR ON S. 2475 AND
H.R. 7200, 75TH CONG., 1ST SESS. 178.  HOWEVER, THE ATTEMPT OF CONGRESS
ITSELF TO COMPLETE THIS COMPLEX LAW FOR ENFORCEMENT BY THE EXECUTIVE,
THROUGH THE COURTS, NOT ONLY FLOODED THE COURTS WITH LITIGATION, BUT
THE COURTS' INTERPRETATION OF THE ACT CONTRARY TO THE POLICY WHICH
CONGRESS THOUGHT IT HAD INDICATED HAD DISASTROUS CONSEQUENCES.  61
STAT. 84, 29 U.S.C. SEC. 251 ET SEQ. 

FN9  IF THE INDEPENDENT AGENCIES COULD REALIZE HOW MUCH
TRUSTWORTHINESS JUDGES GIVE TO WORKMANLIKE FINDINGS AND OPINIONS AND
HOW THEIR CAUSES ARE PREJUDICED ON REVIEW BY SLIPSHOD, IMPRECISE
FINDINGS AND FAILURE TO ELUCIDATE BY OPINION THE PROCESS BY WHICH
ULTIMATE DETERMINATIONS HAVE BEEN REACHED, THEIR WORK AND THEIR SCORE
ON REVIEW WOULD DOUBTLESS IMPROVE.  SEE HENDERSON, THE FEDERAL TRADE
COMMISSION, C. VI, P. 327.  SEE ALSO COMMISSION ON ORGANIZATION OF THE
EXECUTIVE BRANCH OF THE GOVERNMENT, TASK FORCE REPORT ON REGULATORY
COMMISSIONS (APP. N), PP. 129-130. 
..END :















JOSEPH BURSTYN, INC. V. WILSON 343 U.S. 495 


NO. 522.  ARGUED APRIL 24, 1952 - DECIDED MAY 26, 1952 - 303 N.Y. 242,
101 N.E.2D 665, REVERSED. 


PROVISIONS OF THE NEW YORK EDUCATION LAW WHICH FORBID THE COMMERCIAL
SHOWING OF ANY MOTION PICTURE FILM WITHOUT A LICENSE AND AUTHORIZE
DENIAL OF A LICENSE ON A CENSOR'S CONCLUSION THAT A FILM IS
"SACRILEGIOUS," HELD VOID AS A PRIOR RESTRAINT ON FREEDOM OF SPEECH AND
OF THE PRESS UNDER THE FIRST AMENDMENT, MADE APPLICABLE TO THE STATES
BY THE FOURTEENTH AMENDMENT.  PP. 497-506. 

1.  EXPRESSION BY MEANS OF MOTION PICTURES IS INCLUDED WITHIN THE
FREE SPEECH AND FREE PRESS GUARANTY OF THE FIRST AND FOURTEENTH
AMENDMENTS.  PP. 499-502. 

(A)  IT CANNOT BE DOUBTED THAT MOTION PICTURES ARE A SIGNIFICANT
MEDIUM FOR THE COMMUNICATION OF IDEAS.  THEIR IMPORTANCE AS AN ORGAN OF
PUBLIC OPINION IS NOT LESSENED BY THE FACT THAT THEY ARE DESIGNED TO
ENTERTAIN AS WELL AS TO INFORM.  P. 501. 

(B)  THAT THE PRODUCTION, DISTRIBUTION AND EXHIBITION OF MOTION
PICTURES IS A LARGE-SCALE BUSINESS CONDUCTED FOR PRIVATE PROFIT DOES
NOT PREVENT MOTION PICTURES FROM BEING A FORM OF EXPRESSION WHOSE
LIBERTY IS SAFEGUARDED BY THE FIRST AMENDMENT.  PP. 501-502. 

(C)  EVEN IF IT BE ASSUMED THAT MOTION PICTURES POSSESS A GREATER
CAPACITY FOR EVIL, PARTICULARLY AMONG THE YOUTH OF A COMMUNITY, THAN
OTHER MODES OF EXPRESSION, IT DOES NOT FOLLOW THAT THEY ARE NOT
ENTITLED TO THE PROTECTION OF THE FIRST AMENDMENT OR MAY BE SUBJECTED
TO SUBSTANTIALLY UNBRIDLED CENSORSHIP.  P. 502. 

(D)  TO THE EXTENT THAT LANGUAGE IN THE OPINION IN MUTUAL FILM CORP.
V. INDUSTRIAL COMM'N, 236 U.S. 230, IS OUT OF HARMONY WITH THE VIEWS
HERE SET FORTH, IT IS NO LONGER ADHERED TO.  P. 502. 

2.  UNDER THE FIRST AND FOURTEENTH AMENDMENTS, A STATE MAY NOT PLACE
A PRIOR RESTRAINT ON THE SHOWING OF A MOTION PICTURE FILM ON THE BASIS
OF A CENSOR'S CONCLUSION THAT IT IS "SACRILEGIOUS."  PP. 502-506. 

(A)  THOUGH THE CONSTITUTION DOES NOT REQUIRE ABSOLUTE FREEDOM TO
EXHIBIT EVERY MOTION PICTURE OF EVERY KIND AT ALL TIMES AND ALL PLACES,
THERE IS NO JUSTIFICATION IN THIS CASE FOR MAKING AN EXCEPTION TO THE
BASIC PRINCIPLES OF FREEDOM OF EXPRESSION PREVIOUSLY ANNOUNCED BY THIS
COURT WITH RESPECT TO OTHER FORMS OF EXPRESSION.  PP. 502-503. 

(B)  SUCH A PRIOR RESTRAINT AS THAT INVOLVED HERE IS A FORM OF
INFRINGEMENT UPON FREEDOM OF EXPRESSION TO BE ESPECIALLY CONDEMNED. 
NEAR V. MINNESOTA, 283 U.S. 697.  PP. 503-504. 

(C)  NEW YORK CANNOT VEST IN A CENSOR SUCH UNLIMITED RESTRAINING
CONTROL OVER MOTION PICTURES AS THAT INVOLVED IN THE BROAD REQUIREMENT
THAT THEY NOT BE "SACRILEGIOUS."  PP. 504-505. 

(D)  FROM THE STANDPOINT OF FREEDOM OF SPEECH AND THE PRESS, A STATE
HAS NO LEGITIMATE INTEREST IN PROTECTING ANY OR ALL RELIGIONS FROM
VIEWS DISTASTEFUL TO THEM WHICH IS SUFFICIENT TO JUSTIFY PRIOR
RESTRAINTS UPON THE EXPRESSION OF THOSE VIEWS.  P. 505. 

JOSEPH BURSTYN, INC. V. WILSON, COMMISSIONER OF EDUCATION OF NEW YORK,
ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

THE NEW YORK APPELLATE DIVISION SUSTAINED REVOCATION OF A LICENSE FOR
THE SHOWING OF A MOTION PICTURE UNDER SEC. 122 OF THE NEW YORK
EDUCATION LAW ON THE GROUND THAT IT WAS "SACRILEGIOUS."  278 APP. DIV.
253, 104 N.Y.S.2D 740.  THE COURT OF APPEALS OF NEW YORK AFFIRMED.  303
N.Y. 242, 101 N.E.2D 665.  ON APPEAL TO THIS COURT UNDER 28 U.S.C. SEC.
1257(2), REVERSED, P. 506. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS THE CONSTITUTIONALITY, UNDER THE FIRST AND
FOURTEENTH AMENDMENTS, OF A NEW YORK STATUTE WHICH PERMITS THE BANNING
OF MOTION PICTURE FILMS ON THE GROUND THAT THEY ARE "SACRILEGIOUS." 
THAT STATUTE MAKES IT UNLAWFUL "TO EXHIBIT, OR TO SELL, LEASE OR LEND
FOR EXHIBITION AT ANY PLACE OF AMUSEMENT FOR PAY OR IN CONNECTION WITH
ANY BUSINESS IN THE STATE OF NEW YORK, ANY MOTION PICTURE FILM OR REEL
(WITH SPECIFIED EXCEPTIONS NOT RELEVANT HERE), UNLESS THERE IS AT THE
TIME IN FULL FORCE AND EFFECT A VALID LICENSE OR PERMIT THEREFOR OF THE
EDUCATION DEPARTMENT  ...  ."  (FN1)  THE STATUTE FURTHER PROVIDES: 

"THE DIRECTOR OF THE MOTION PICTURE DIVISION OF THE EDUCATION
DEPARTMENT OR, WHEN AUTHORIZED BY THE REGENTS, THE OFFICERS OF A LOCAL
OFFICE OR BUREAU SHALL CAUSE TO BE PROMPTLY EXAMINED EVERY MOTION
PICTURE FILM SUBMITTED TO THEM AS HEREIN REQUIRED, AND UNLESS SUCH FILM
OR A PART THEREOF IS OBSCENE, INDECENT, IMMORAL, INHUMAN, SACRILEGIOUS,
OR IS OF SUCH A CHARACTER THAT ITS EXHIBITION WOULD TEND TO CORRUPT
MORALS OR INCITE TO CRIME, SHALL ISSUE A LICENSE THEREFOR.  IF SUCH
DIRECTOR OR, WHEN SO AUTHORIZED, SUCH OFFICER SHALL NOT LICENSE ANY
FILM SUBMITTED, HE SHALL FURNISH TO THE APPLICANT THEREFOR A WRITTEN
REPORT OF THE REASONS FOR HIS REFUSAL AND A DESCRIPTION OF EACH
REJECTED PART OF A FILM NOT REJECTED IN TOTO."  (FN2) 

APPELLANT IS A CORPORATION ENGAGED IN THE BUSINESS OF DISTRIBUTING
MOTION PICTURES.  IT OWNS THE EXCLUSIVE RIGHTS TO DISTRIBUTE THROUGHOUT
THE UNITED STATES A FILM PRODUCED IN ITALY ENTITLED "THE MIRACLE."  ON
NOVEMBER 30, 1950, AFTER HAVING EXAMINED THE PICTURE, THE MOTION
PICTURE DIVISION OF THE NEW YORK EDUCATION DEPARTMENT, ACTING UNDER THE
STATUTE QUOTED ABOVE, ISSUED TO APPELLANT A LICENSE AUTHORIZING
EXHIBITION OF "THE MIRACLE," WITH ENGLISH SUBTITLES, AS ONE PART OF A
TRILOGY CALLED "WAYS OF LOVE."  (FN3)  THEREAFTER, FOR A PERIOD OF
APPROXIMATELY EIGHT WEEKS, "WAYS OF LOVE" WAS EXHIBITED PUBLICLY IN A
MOTION PICTURE THEATER IN NEW YORK CITY UNDER AN AGREEMENT BETWEEN
APPELLANT AND THE OWNER OF THE THEATER WHEREBY APPELLANT RECEIVED A
STATED PERCENTAGE OF THE ADMISSION PRICE. 

DURING THIS PERIOD, THE NEW YORK STATE BOARD OF REGENTS, WHICH BY
STATUTE IS MADE THE HEAD OF THE EDUCATION DEPARTMENT, (FN4) RECEIVED
"HUNDREDS OF LETTERS, TELEGRAMS, POST CARDS, AFFIDAVITS AND OTHER
COMMUNICATIONS" BOTH PROTESTING AGAINST AND DEFENDING THE PUBLIC
EXHIBITION OF "THE MIRACLE."  (FN5)  THE CHANCELLOR OF THE BOARD OF
REGENTS REQUESTED THREE MEMBERS OF THE BOARD TO VIEW THE PICTURE AND TO
MAKE A REPORT TO THE ENTIRE BOARD.  AFTER VIEWING THE FILM, THIS
COMMITTEE REPORTED TO THE BOARD THAT IN ITS OPINION THERE WAS BASIS FOR
THE CLAIM THAT THE PICTURE WAS "SACRILEGIOUS."  THEREAFTER, ON JANUARY
19, 1951, THE REGENTS DIRECTED APPELLANT TO SHOW CAUSE, AT A HEARING TO
BE HELD ON JANUARY 30, WHY ITS LICENSE TO SHOW "THE MIRACLE" SHOULD NOT
BE RESCINDED ON THAT GROUND.  APPELLANT APPEARED AT THIS HEARING, WHICH
WAS CONDUCTED BY THE SAME THREE-MEMBER COMMITTEE OF THE REGENTS WHICH
HAD PREVIOUSLY VIEWED THE PICTURE, AND CHALLENGED THE JURISDICTION OF
THE COMMITTEE AND OF THE REGENTS TO PROCEED WITH THE CASE.  WITH THE
CONSENT OF THE COMMITTEE, VARIOUS INTERESTED PERSONS AND ORGANIZATIONS
SUBMITTED TO IT BRIEFS AND EXHIBITS BEARING UPON THE MERITS OF THE
PICTURE AND UPON THE CONSTITUTIONAL AND STATUTORY QUESTIONS INVOLVED. 
ON FEBRUARY 16, 1951, THE REGENTS, AFTER VIEWING "THE MIRACLE,"
DETERMINED THAT IT WAS "SACRILEGIOUS" AND FOR THAT REASON ORDERED THE
COMMISSIONER OF EDUCATION TO RESCIND APPELLANT'S LICENSE TO EXHIBIT THE
PICTURE.  THE COMMISSIONER DID SO. 

APPELLANT BROUGHT THE PRESENT ACTION IN THE NEW YORK COURTS TO REVIEW
THE DETERMINATION OF THE REGENTS.  (FN6)  AMONG THE CLAIMS ADVANCED BY
APPELLANT WERE (1) THAT THE STATUTE VIOLATES THE FOURTEENTH AMENDMENT
AS A PRIOR RESTRAINT UPON FREEDOM OF SPEECH AND OF THE PRESS; (2) THAT
IT IS INVALID UNDER THE SAME AMENDMENT AS A VIOLATION OF THE GUARANTY
OF SEPARATE CHURCH AND STATE AND AS A PROHIBITION OF THE FREE EXERCISE
OF RELIGION; AND, (3) THAT THE TERM "SACRILEGIOUS" IS SO VAGUE AND
INDEFINITE AS TO OFFEND DUE PROCESS.  THE APPELLATE DIVISION REJECTED
ALL OF APPELLANT'S CONTENTIONS AND UPHELD THE REGENTS' DETERMINATION. 
278 APP. DIV. 253, 104 N.Y.S.2D 740.  ON APPEAL THE NEW YORK COURT OF
APPEALS, TWO JUDGES DISSENTING, AFFIRMED THE ORDER OF THE APPELLATE
DIVISION.  303 N.Y. 242, 101 N.E.2D 665.  THE CASE IS HERE ON APPEAL. 
28 U.S.C. SEC. 1257(2). 

AS WE VIEW THE CASE, WE NEED CONSIDER ONLY APPELLANT'S CONTENTION
THAT THE NEW YORK STATUTE IS AN UNCONSTITUTIONAL ABRIDGMENT OF FREE
SPEECH AND A FREE PRESS.  IN MUTUAL FILM CORP. V. INDUSTRIAL COMM'N,
236 U.S. 230 (1915), A DISTRIBUTOR OF MOTION PICTURES SOUGHT TO ENJOIN
THE ENFORCEMENT OF AN OHIO STATUTE WHICH REQUIRED THE PRIOR APPROVAL OF
A BOARD OF CENSORS BEFORE ANY MOTION PICTURE COULD BE PUBLICLY
EXHIBITED IN THE STATE, AND WHICH DIRECTED THE BOARD TO APPROVE ONLY
SUCH FILMS AS IT ADJUDGED TO BE "OF A MORAL, EDUCATIONAL OR AMUSING AND
HARMLESS CHARACTER."  THE STATUTE WAS ASSAILED IN PART AS AN
UNCONSTITUTIONAL ABRIDGMENT OF THE FREEDOM OF THE PRESS GUARANTEED BY
THE FIRST AND FOURTEENTH AMENDMENTS.  THE DISTRICT COURT REJECTED THIS
CONTENTION, STATING THAT THE FIRST EIGHT AMENDMENTS WERE NOT A
RESTRICTION ON STATE ACTION.  215 F.138, 141 (D.C.N.D. OHIO 1914).  ON
APPEAL TO THIS COURT, PLAINTIFF IN ITS BRIEF ABANDONED THIS CLAIM AND
CONTENDED MERELY THAT THE STATUTE IN QUESTION VIOLATED THE FREEDOM OF
SPEECH AND PUBLICATION GUARANTEED BY THE CONSTITUTION OF OHIO.  IN
AFFIRMING THE DECREE OF THE DISTRICT COURT DENYING INJUNCTIVE RELIEF,
THIS COURT STATED: 

"IT CANNOT BE PUT OUT OF VIEW THAT THE EXHIBITION OF MOVING PICTURES
IS A BUSINESS PURE AND SIMPLE, ORIGINATED AND CONDUCTED FOR PROFIT,
LIKE OTHER SPECTACLES, NOT TO BE REGARDED, NOR INTENDED TO BE REGARDED
BY THE OHIO CONSTITUTION, WE THINK, AS PART OF THE PRESS OF THE COUNTRY
OR AS ORGANS OF PUBLIC OPINION."  (FN7) 

IN A SERIES OF DECISIONS BEGINNING WITH GITLOW V. NEW YORK, 268 U.S.
652 (1925), THIS COURT HELD THAT THE LIBERTY OF SPEECH AND OF THE PRESS
WHICH THE FIRST AMENDMENT GUARANTEES AGAINST ABRIDGMENT BY THE FEDERAL
GOVERNMENT IS WITHIN THE LIBERTY SAFEGUARDED BY THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT FROM INVASION BY STATE ACTION.  (FN8)  THAT
PRINCIPLE HAS BEEN FOLLOWED AND REAFFIRMED TO THE PRESENT DAY.  SINCE
THIS SERIES OF DECISIONS CAME AFTER THE MUTUAL DECISION, THE PRESENT
CASE IS THE FIRST TO PRESENT SQUARELY TO US THE QUESTION WHETHER MOTION
PICTURES ARE WITHIN THE AMBIT OF PROTECTION WHICH THE FIRST AMENDMENT,
THROUGH THE FOURTEENTH, SECURES TO ANY FORM OF "SPEECH" OR "THE
PRESS."  (FN9) 

IT CANNOT BE DOUBTED THAT MOTION PICTURES ARE A SIGNIFICANT MEDIUM
FOR THE COMMUNICATION OF IDEAS.  THEY MAY AFFECT PUBLIC ATTITUDES AND
BEHAVIOR IN A VARIETY OF WAYS, RANGING FROM DIRECT ESPOUSAL OF A
POLITICAL OR SOCIAL DOCTRINE TO THE SUBTLE SHAPING OF THOUGHT WHICH
CHARACTERIZES ALL ARTISTIC EXPRESSION.  (FN10)  THE IMPORTANCE OF
MOTION PICTURES AS AN ORGAN OF PUBLIC OPINION IS NOT LESSENED BY THE
FACT THAT THEY ARE DESIGNED TO ENTERTAIN AS WELL AS TO INFORM.  AS WAS
SAID IN WINTERS V. NEW YORK, 333 U.S. 507, 510 (1948): 

"THE LINE BETWEEN THE INFORMING AND THE ENTERTAINING IS TOO ELUSIVE
FOR THE PROTECTION OF THAT BASIC RIGHT (A FREE PRESS).  EVERYONE IS
FAMILIAR WITH INSTANCES OF PROPAGANDA THROUGH FICTION.  WHAT IS ONE
MAN'S AMUSEMENT, TEACHES ANOTHER'S DOCTRINE." 

IT IS URGED THAT MOTION PICTURES DO NOT FALL WITHIN THE FIRST
AMENDMENT'S AEGIS BECAUSE THEIR PRODUCTION, DISTRIBUTION, AND
EXHIBITION IS A LARGE-SCALE BUSINESS CONDUCTED FOR PRIVATE PROFIT.  WE
CANNOT AGREE.  THAT BOOKS, NEWSPAPERS, AND MAGAZINES ARE PUBLISHED AND
SOLD FOR PROFIT DOES NOT PREVENT THEM FROM BEING A FORM OF EXPRESSION
WHOSE LIBERTY IS SAFEGUARDED BY THE FIRST AMENDMENT.  (FN11)  WE FAIL
TO SEE WHY OPERATION FOR PROFIT SHOULD HAVE ANY DIFFERENT EFFECT IN THE
CASE OF MOTION PICTURES. 

IT IS FURTHER URGED THAT MOTION PICTURES POSSESS A GREATER CAPACITY
FOR EVIL, PARTICULARLY AMONG THE YOUTH OF A COMMUNITY, THAN OTHER MODES
OF EXPRESSION.  EVEN IF ONE WERE TO ACCEPT THIS HYPOTHESIS, IT DOES NOT
FOLLOW THAT MOTION PICTURES SHOULD BE DISQUALIFIED FROM FIRST AMENDMENT
PROTECTION.  IF THERE BE CAPACITY FOR EVIL IT MAY BE RELEVANT IN
DETERMINING THE PERMISSIBLE SCOPE OF COMMUNITY CONTROL, BUT IT DOES NOT
AUTHORIZE SUBSTANTIALLY UNBRIDLED CENSORSHIP SUCH AS WE HAVE HERE. 

FOR THE FOREGOING REASONS, WE CONCLUDE THAT EXPRESSION BY MEANS OF
MOTION PICTURES IS INCLUDED WITHIN THE FREE SPEECH AND FREE PRESS
GUARANTY OF THE FIRST AND FOURTEENTH AMENDMENTS.  TO THE EXTENT THAT
LANGUAGE IN THE OPINION IN MUTUAL FILM CORP. V. INDUSTRIAL COMM'N,
SUPRA, IS OUT OF HARMONY WITH THE VIEWS HERE SET FORTH, WE NO LONGER
ADHERE TO IT.  (FN12) 

TO HOLD THAT LIBERTY OF EXPRESSION BY MEANS OF MOTION PICTURES IS
GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS, HOWEVER, IS NOT THE
END OF OUR PROBLEM.  IT DOES NOT FOLLOW THAT THE CONSTITUTION REQUIRES
ABSOLUTE FREEDOM TO EXHIBIT EVERY MOTION PICTURE OF EVERY KIND AT ALL
TIMES AND ALL PLACES.  THAT MUCH IS EVIDENT FROM THE SERIES OF
DECISIONS OF THIS COURT WITH RESPECT TO OTHER MEDIA OF COMMUNICATION OF
IDEAS.  (FN13)  NOR DOES IT FOLLOW THAT MOTION PICTURES ARE NECESSARILY
SUBJECT TO THE PRECISE RULES GOVERNING ANY OTHER PARTICULAR METHOD OF
EXPRESSION.  EACH METHOD TENDS TO PRESENT ITS OWN PECULIAR PROBLEMS. 
BUT THE BASIC PRINCIPLES OF FREEDOM OF SPEECH AND THE PRESS, LIKE THE
FIRST AMENDMENT'S COMMAND, DO NOT VARY.  THOSE PRINCIPLES, AS THEY HAVE
FREQUENTLY BEEN ENUNCIATED BY THIS COURT, MAKE FREEDOM OF EXPRESSION
THE RULE.  THERE IS NO JUSTIFICATION IN THIS CASE FOR MAKING AN
EXCEPTION TO THAT RULE. 

THE STATUTE INVOLVED HERE DOES NOT SEEK TO PUNISH, AS A PAST OFFENSE,
SPEECH OR WRITING FALLING WITHIN THE PERMISSIBLE SCOPE OF SUBSEQUENT
PUNISHMENT.  ON THE CONTRARY, NEW YORK REQUIRES THAT PERMISSION TO
COMMUNICATE IDEAS BE OBTAINED IN ADVANCE FROM STATE OFFICIALS WHO JUDGE
THE CONTENT OF THE WORDS AND PICTURES SOUGHT TO BE COMMUNICATED.  THIS
COURT RECOGNIZED MANY YEARS AGO THAT SUCH A PREVIOUS RESTRAINT IS A
FORM OF INFRINGEMENT UPON FREEDOM OF EXPRESSION TO BE ESPECIALLY
CONDEMNED.  NEAR V. MINNESOTA EX REL. OLSON, 283 U.S. 697 (1931).  THE
COURT THERE RECOUNTED THE HISTORY WHICH INDICATES THAT A MAJOR PURPOSE
OF THE FIRST AMENDMENT GUARANTY OF A FREE PRESS WAS TO PREVENT PRIOR
RESTRAINTS UPON PUBLICATION, ALTHOUGH IT WAS CAREFULLY POINTED OUT THAT
THE LIBERTY OF THE PRESS IS NOT LIMITED TO THAT PROTECTION.  (FN14)  IT
WAS FURTHER STATED THAT "THE PROTECTION EVEN AS TO PREVIOUS RESTRAINT
IS NOT ABSOLUTELY UNLIMITED.  BUT THE LIMITATION HAS BEEN RECOGNIZED
ONLY IN EXCEPTIONAL CASES."  ID., AT 716.  IN THE LIGHT OF THE FIRST
AMENDMENT'S HISTORY AND OF THE NEAR DECISION, THE STATE HAS A HEAVY
BURDEN TO DEMONSTRATE THAT THE LIMITATION CHALLENGED HERE PRESENTS SUCH
AN EXCEPTIONAL CASE. 

NEW YORK'S HIGHEST COURT SAYS THERE IS "NOTHING MYSTERIOUS" ABOUT THE
STATUTORY PROVISION APPLIED IN THIS CASE:  "IT IS SIMPLY THIS:  THAT NO
RELIGION, AS THAT WORD IS UNDERSTOOD BY THE ORDINARY, REASONABLE
PERSON, SHALL BE TREATED WITH CONTEMPT, MOCKERY, SCORN AND RIDICULE
...  ."  (FN15) THIS IS FAR FROM THE KIND OF NARROW EXCEPTION TO
FREEDOM OF EXPRESSION WHICH A STATE MAY CARVE OUT TO SATISFY THE
ADVERSE DEMANDS OF OTHER INTERESTS OF SOCIETY.  (FN16)  IN SEEKING TO
APPLY THE BROAD AND ALL-INCLUSIVE DEFINITION OF "SACRILEGIOUS" GIVEN BY
THE NEW YORK COURTS, THE CENSOR IS SET ADRIFT UPON A BOUNDLESS SEA AMID
A MYRIAD OF CONFLICTING CURRENTS OF RELIGIOUS VIEWS, WITH NO CHARTS BUT
THOSE PROVIDED BY THE MOST VOCAL AND POWERFUL ORTHODOXIES.  NEW YORK
CANNOT VEST SUCH UNLIMITED RESTRAINING CONTROL OVER MOTION PICTURES IN
A CENSOR.  CF. KUNZ V. NEW YORK, 340 U.S. 290 (1951).  (FN17)  UNDER
SUCH A STANDARD THE MOST CAREFUL AND TOLERANT CENSOR WOULD FIND IT
VIRTUALLY IMPOSSIBLE TO AVOID FAVORING ONE RELIGION OVER ANOTHER, AND
HE WOULD BE SUBJECT TO AN INEVITABLE TENDENCY TO BAN THE EXPRESSION OF
UNPOPULAR SENTIMENTS SACRED TO A RELIGIOUS MINORITY.  APPLICATION OF
THE "SACRILEGIOUS" TEST, IN THESE OR OTHER RESPECTS, MIGHT RAISE
SUBSTANTIAL QUESTIONS UNDER THE FIRST AMENDMENT'S GUARANTY OF SEPARATE
CHURCH AND STATE WITH FREEDOM OF WORSHIP FOR ALL.  (FN18) HOWEVER, FROM
THE STANDPOINT OF FREEDOM OF SPEECH AND THE PRESS, IT IS ENOUGH TO
POINT OUT THAT THE STATE HAS NO LEGITIMATE INTEREST IN PROTECTING ANY
OR ALL RELIGIONS FROM VIEWS DISTASTEFUL TO THEM WHICH IS SUFFICIENT TO
JUSTIFY PRIOR RESTRAINTS UPON THE EXPRESSION OF THOSE VIEWS.  IT IS NOT
THE BUSINESS OF GOVERNMENT IN OUR NATION TO SUPPRESS REAL OR IMAGINED
ATTACKS UPON A PARTICULAR RELIGIOUS DOCTRINE, WHETHER THEY APPEAR IN
PUBLICATIONS, SPEECHES, OR MOTION PICTURES.  (FN19)    SINCE THE TERM
"SACRILEGIOUS" IS THE SOLE STANDARD UNDER ATTACK HERE, IT IS NOT
NECESSARY FOR US TO DECIDE, FOR EXAMPLE, WHETHER A STATE MAY CENSOR
MOTION PICTURES UNDER A CLEARLY DRAWN STATUTE DESIGNED AND APPLIED TO
PREVENT THE SHOWING OF OBSCENE FILMS.  THAT IS A VERY DIFFERENT
QUESTION FROM THE ONE NOW BEFORE US.  (FN20)  WE HOLD ONLY THAT UNDER
THE FIRST AND FOURTEENTH AMENDMENTS A STATE MAY NOT BAN A FILM ON THE
BASIS OF A CENSOR'S CONCLUSION THAT IT IS "SACRILEGIOUS."  REVERSED. 
FN1  MCKINNEY'S N.Y. LAWS, 1947, EDUCATION LAW, SEC. 129. 

FN2  ID., SEC. 122. 

FN3  THE MOTION PICTURE DIVISION HAD PREVIOUSLY ISSUED A LICENSE FOR
EXHIBITION OF "THE MIRACLE" WITHOUT ENGLISH SUBTITLES, BUT THE FILM WAS
NEVER SHOWN UNDER THAT LICENSE. 

FN4  MCKINNEY'S N.Y. LAWS, 1947, EDUCATION LAW, SEC. 101; SEE ALSO
N.Y. CONST., ART. V, SEC. 4. 

FN5  STIPULATION BETWEEN APPELLANT AND APPELLEE, R. 86. 

FN6  THE ACTION WAS BROUGHT UNDER ARTICLE 78 OF THE NEW YORK CIVIL
PRACTICE ACT, GILBERT-BLISS N.Y. CIV. PRAC., VOL. 6B, 1944, 1949 SUPP.,
SEC. 1283 ET SEQ. SEE ALSO MCKINNEY'S N.Y. LAWS, 1947, EDUCATION LAW,
SEC. 124. 

FN7  236 U.S., AT 244. 

FN8  GITLOW V. NEW YORK, 268 U.S. 652, 666 (1925); STROMBERG V.
CALIFORNIA, 283 U.S. 359, 368 (1931); NEAR V. MINNESOTA EX REL. OLSON,
283 U.S. 697, 707 (1931); GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233,
244 (1936); DE JONGE V. OREGON, 299 U.S. 353, 364 (1937); LOVELL V.
GRIFFIN, 303 U.S. 444, 450 (1938); SCHNEIDER V. STATE, 308 U.S. 147,
160 (1939). 

FN9  SEE LOVELL V. GRIFFIN, 303 U.S. 444, 452 (1938). 

FN10  SEE INGLIS, FREEDOM OF THE MOVIES (1947), 20-24; KLAPPER, THE
EFFECT OF MASS MEDIA (1950), PASSIM; NOTE, MOTION PICTURES AND THE
FIRST AMENDMENT, 60 YALE L.J. 696, 704-708 (1951), AND SOURCES CITED
THEREIN. 

FN11  SEE GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233 (1936); THOMAS
V. COLLINS, 323 U.S. 516, 531 (1945). 

FN12  SEE UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131,
166 (1948):  "WE HAVE NO DOUBT THAT MOVING PICTURES, LIKE NEWSPAPERS
AND RADIO, ARE INCLUDED IN THE PRESS WHOSE FREEDOM IS GUARANTEED BY THE
FIRST AMENDMENT."  IT IS NOT WITHOUT SIGNIFICANCE THAT TALKING PICTURES
WERE FIRST PRODUCED IN 1926, ELEVEN YEARS AFTER THE MUTUAL DECISION. 
HAMPTON, A HISTORY OF THE MOVIES (1931), 382-383. 

FN13  E.G., FEINER V. NEW YORK, 340 U.S. 315 (1951); KOVACS V.
COOPER, 336 U.S. 77 (1949); CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568
(1942); COX V. NEW HAMPSHIRE, 312 U.S. 569 (1941). 

FN14  NEAR V. MINNESOTA EX REL. OLSON, 283 U.S. 697, 713-719 (1931);
SEE ALSO LOVELL V. GRIFFIN, 303 U.S. 444, 451-452 (1938); GROSJEAN V.
AMERICAN PRESS CO., 297 U.S. 233, 245-250 (1936); PATTERSON V.
COLORADO, 205 U.S. 454, 462 (1907). 

FN15  303 N.Y. 242, 258, 101 N.E.2D 665, 672.  AT ANOTHER POINT THE
COURT OF APPEALS GAVE "SACRILEGIOUS" THE FOLLOWING DEFINITION:  "THE
ACT OF VIOLATING OR PROFANING ANYTHING SACRED."  ID., AT 255, 101
N.E.2D AT 670.  THE COURT OF APPEALS ALSO APPROVED THE APPELLATE
DIVISION'S INTERPRETATION:  "AS THE COURT BELOW SAID OF THE STATUTE IN
QUESTION, 'ALL IT PURPORTS TO DO IS TO BAR A VISUAL CARICATURE OF
RELIGIOUS BELIEFS HELD SACRED BY ONE SECT OR ANOTHER  ...  .'"  ID., AT
258, 101 N.E.2D AT 672.  JUDGE FULD, DISSENTING, CONCLUDED FROM ALL THE
STATEMENTS IN THE MAJORITY OPINION THAT "THE BASIC CRITERION APPEARS TO
BE WHETHER THE FILM TREATS A RELIGIOUS THEME IN SUCH A MANNER AS TO
OFFEND THE RELIGIOUS BELIEFS OF ANY GROUP OF PERSONS.  IF THE FILM DOES
HAVE THAT EFFECT, AND IT IS 'OFFERED AS A FORM OF ENTERTAINMENT,' IT
APPARENTLY FALLS WITHIN THE STATUTORY BAN REGARDLESS OF THE SINCERITY
AND GOOD FAITH OF THE PRODUCER OF THE FILM, NO MATTER HOW TEMPERATE THE
TREATMENT OF THE THEME, AND NO MATTER HOW UNLIKELY A PUBLIC DISTURBANCE
OR BREACH OF THE PEACE.  THE DRASTIC NATURE OF SUCH A BAN IS
HIGHLIGHTED BY THE FACT THAT THE FILM IN QUESTION MAKES NO DIRECT
ATTACK ON, OR CRITICISM OF, ANY RELIGIOUS DOGMA OR PRINCIPLE, AND IT IS
NOT CLAIMED TO BE OBSCENE, SCURRILOUS, INTEMPERATE OR ABUSIVE."  ID.,
AT 271-272, 101 N.E.2D AT 680. 

FN16  CF. THORNHILL V. ALABAMA, 310 U.S. 88, 97 (1940); STROMBERG V.
CALIFORNIA, 283 U.S. 359, 369-370 (1931). 

FN17  CF. NIEMOTKO V. MARYLAND, 340 U.S. 268 (1951); SAIA V. NEW
YORK, 334 U.S. 558 (1948); LARGENT V. TEXAS, 318 U.S. 418 (1943);
LOVELL V. GRIFFIN, 303 U.S. 444 (1938). 

FN18  SEE CANTWELL V. CONNECTICUT, 310 U.S. 296 (1940). 

FN19  SEE THE FOLLOWING STATEMENT BY MR. JUSTICE ROBERTS, SPEAKING
FOR A UNANIMOUS COURT IN CANTWELL V. CONNECTICUT, 310 U.S. 296, 310
(1940): 

"IN THE REALM OF RELIGIOUS FAITH, AND IN THAT OF POLITICAL BELIEF,
SHARP DIFFERENCES ARISE.  IN BOTH FIELDS THE TENETS OF ONE MAN MAY SEEM
THE RANKEST ERROR TO HIS NEIGHBOR.  TO PERSUADE OTHERS TO HIS OWN POINT
OF VIEW, THE PLEADER, AS WE KNOW, AT TIMES, RESORTS TO EXAGGERATION, TO
VILIFICATION OF MEN WHO HAVE BEEN, OR ARE, PROMINENT IN CHURCH OR
STATE, AND EVEN TO FALSE STATEMENT.  BUT THE PEOPLE OF THIS NATION HAVE
ORDAINED IN THE LIGHT OF HISTORY, THAT, IN SPITE OF THE PROBABILITY OF
EXCESSES AND ABUSES, THE LIBERTIES ARE, IN THE LONG VIEW, ESSENTIAL TO
ENLIGHTENED OPINION AND RIGHT CONDUCT ON THE PART OF THE CITIZENS OF A
DEMOCRACY. 

"THE ESSENTIAL CHARACTERISTIC OF THESE LIBERTIES IS, THAT UNDER THEIR
SHIELD MANY TYPES OF LIFE, CHARACTER, OPINION AND BELIEF CAN DEVELOP
UNMOLESTED AND UNOBSTRUCTED.  NOWHERE IS THIS SHIELD MORE NECESSARY
THAN IN OUR OWN COUNTRY FOR A PEOPLE COMPOSED OF MANY RACES AND OF MANY
CREEDS." 

FN20  IN THE NEAR CASE, THIS COURT STATED THAT "THE PRIMARY
REQUIREMENTS OF DECENCY MAY BE ENFORCED AGAINST OBSCENE PUBLICATIONS." 
283 U.S. 697, 716.  IN CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571
572 (1942), MR. JUSTICE MURPHY STATED FOR A UNANIMOUS COURT: "THERE ARE
CERTAIN WELL-DEFINED AND NARROWLY LIMITED CLASSES OF SPEECH, THE
PREVENTION AND PUNISHMENT OF WHICH HAVE NEVER BEEN THOUGHT TO RAISE ANY
CONSTITUTIONAL PROBLEM.  THESE INCLUDE THE LEWD AND OBSCENE, THE
PROFANE, THE LIBELOUS, AND THE INSULTING OR 'FIGHTING' WORDS - THOSE
WHICH BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE AN
IMMEDIATE BREACH OF THE PEACE."  BUT SEE KOVACS V. COOPER, 336 U.S. 77,
82 (1949):  "WHEN ORDINANCES UNDERTAKE CENSORSHIP OF SPEECH OR
RELIGIOUS PRACTICES BEFORE PERMITTING THEIR EXERCISE, THE CONSTITUTION
FORBIDS THEIR ENFORCEMENT." 

MR. JUSTICE REED, CONCURRING IN THE JUDGMENT OF THE COURT. 

ASSUMING THAT A STATE MAY ESTABLISH A SYSTEM FOR THE LICENSING OF
MOTION PICTURES, AN ISSUE NOT FORECLOSED BY THE COURT'S OPINION, OUR
DUTY REQUIRES US TO EXAMINE THE FACTS OF THE REFUSAL OF A LICENSE IN
EACH CASE TO DETERMINE WHETHER THE PRINCIPLES OF THE FIRST AMENDMENT
HAVE BEEN HONORED.  THIS FILM DOES NOT SEEM TO ME TO BE OF A CHARACTER
THAT THE FIRST AMENDMENT PERMITS A STATE TO EXCLUDE FROM PUBLIC VIEW. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, CONCURRING
IN THE JUDGMENT OF THE COURT; MR. JUSTICE BURTON, HAVING CONCURRED IN
THE OPINION OF THE COURT, ALSO JOINS THIS OPINION. 

A PRACTISED HAND HAS THUS SUMMARIZED THE STORY OF "THE MIRACLE":
(FN1) 

"A POOR, SIMPLE-MINDED GIRL IS TENDING A HERD OF GOATS ON A
MOUNTAINSIDE ONE DAY, WHEN A BEARDED STRANGER PASSES.  SUDDENLY IT
STRIKES HER FANCY THAT HE IS ST. JOSEPH, HER FAVORITE SAINT, AND THAT
HE HAS COME TO TAKE HER TO HEAVEN, WHERE SHE WILL BE HAPPY AND FREE. 
WHILE SHE PLEADS WITH HIM TO TRANSPORT HER, THE STRANGER GENTLY PLIES
THE GIRL WITH WINE, AND WHEN SHE IS IN A STATE OF TUMULT, HE APPARENTLY
RAVISHES HER.  (THIS INCIDENT IN THE STORY IS ONLY BRIEFLY AND
DISCREETLY IMPLIED.) 

"THE GIRL AWAKENS LATER, FINDS THE STRANGER GONE, AND CLIMBS DOWN
FROM THE MOUNTAIN NOT KNOWING WHETHER HE WAS REAL OR A DREAM.  SHE
MEETS AN OLD PRIEST WHO TELLS HER THAT IT IS QUITE POSSIBLE THAT SHE
DID SEE A SAINT, BUT A YOUNGER PRIEST SCOFFS AT THE NOTION. 
'MATERIALIST]'  THE OLD PRIEST SAYS. 

"THERE FOLLOWS NOW A BRIEF SEQUENCE - INTENDED TO BE SYMBOLIC,
OBVIOUSLY - IN WHICH THE GIRL IS REVERENTLY SITTING WITH OTHER
VILLAGERS IN CHURCH.  MOVED BY A WHIM OF APPETITE, SHE SNITCHES AN
APPLE FROM THE BASKET OF A WOMAN NEXT TO HER.  WHEN SHE LEAVES THE
CHURCH, A CACKLING BEGGAR TRIES TO MAKE HER SHARE THE APPLE WITH HIM,
BUT SHE CHASES HIM AWAY AS BY HABIT AND MUNCHES THE FRUIT CONTENTEDLY. 

"THEN, ONE DAY, WHILE TENDING THE VILLAGE YOUNGSTERS AS THEIR MOTHERS
WORK AT THE VINES, THE GIRL FAINTS AND THE WOMEN DISCOVER THAT SHE IS
GOING TO HAVE A CHILD.  FRIGHTENED AND BEWILDERED, SHE SUDDENLY
MURMURS, 'IT IS THE GRACE OF GOD]'  AND SHE RUNS TO THE CHURCH IN GREAT
EXCITEMENT, LOOKS FOR THE STATUE OF ST. JOSEPH, AND THEN PROSTRATES
HERSELF ON THE FLOOR. 

"THEREAFTER SHE MEEKLY REFUSES TO DO ANY MENIAL WORK AND THE
HOUSEWIVES HUMOR HER GENTLY BUT THE YOUNG PEOPLE ARE NOT SO KIND.  IN A
SCENE OF BRUTAL TORMENT, THEY FIRST FLATTER AND LAUGHINGLY MOCK HER,
THEN THEY CRUELLY SHOVE AND HIT HER AND CLAMP A BASIN AS A HALO ON HER
HEAD.  EVEN ABUSED BY THE BEGGARS, THE POOR GIRL GATHERS TOGETHER HER
PITIFUL RAGS AND SADLY DEPARTS FROM THE VILLAGE TO LIVE ALONE IN A
CAVE. 

"WHEN SHE FEELS HER TIME COMING UPON HER, SHE STARTS BACK TOWARDS THE
VILLAGE.  BUT THEN SHE SEES THE CROWDS IN THE STREETS; DARK MEMORIES
HAUNT HER; SO SHE TURNS TOWARDS A CHURCH ON A HIGH HILL AND
INSTINCTIVELY STRUGGLES TOWARDS IT, CRYING DESPERATELY TO GOD.  A GOAT
IS HER SOLE COMPANION.  SHE DRINKS WATER DRIPPING FROM A ROCK.  AND
WHEN SHE COMES TO THE CHURCH AND FINDS THE DOOR LOCKED, THE GOAT
ATTRACTS HER TO A SMALL SIDE DOOR.  INSIDE THE CHURCH, THE POOR GIRL
BRACES HERSELF FOR HER LABOR PAINS.  THERE IS A DISSOLVE, AND WHEN WE
NEXT SEE HER SAD FACE, IN CLOSE-UP, IT IS FULL OF A TENDER LIGHT. 
THERE IS THE CRY OF AN UNSEEN BABY.  THE GIRL REACHES TOWARDS IT AND
MURMURS, 'MY SON]  MY LOVE]  MY FLESH]'" 

"THE MIRACLE" - A FILM LASTING FORTY MINUTES - WAS PRODUCED IN ITALY
BY ROBERTO ROSSELLINI.  ANNA MAGNANI PLAYED THE LEAD AS THE DEMENTED
GOAT-TENDER.  IT WAS FIRST SHOWN AT THE VENICE FILM FESTIVAL IN AUGUST,
1948, COMBINED WITH ANOTHER MOVING PICTURE, "L'UMANO VOCE," INTO A
DIPTYCH CALLED "AMORE."  ACCORDING TO AN AFFIDAVIT FROM THE DIRECTOR OF
THAT FESTIVAL, IF THE MOTION PICTURE HAD BEEN "BLASPHEMOUS" IT WOULD
HAVE BEEN BARRED BY THE FESTIVAL COMMITTEE.  IN A REVIEW OF THE FILM IN
L'OSSERVATORE ROMANO, THE ORGAN OF THE VATICAN, ITS FILM CRITIC, PIERO
REGNOLI, WROTE:  "OPINIONS MAY VARY AND QUESTIONS MAY ARISE - EVEN
SERIOUS ONES - OF A RELIGIOUS NATURE (NOT TO BE DIMINISHED BY THE FACT
THAT THE WOMAN PORTRAYED IS MAD BECAUSE THE AUTHOR WHO ATTRIBUTED
MADNESS TO HER IS NOT MAD) ...  ."  (FN2)  WHILE ACKNOWLEDGING THAT
THERE WERE "PASSAGES OF UNDOUBTED CINEMATIC DISTINCTION," REGNOLI
CRITICIZED THE FILM AS BEING "ON SUCH A PRETENTIOUSLY CEREBRAL PLANE
THAT IT REMINDS ONE OF THE EARLY D'ANNUNZIO."  THE VATICAN NEWSPAPER'S
CRITIC CONCLUDED:  "WE CONTINUE TO BELIEVE IN ROSSELLINI'S ART AND WE
LOOK FORWARD TO HIS NEXT ACHIEVEMENT."  (FN3)  IN OCTOBER, 1948, A
MONTH AFTER THE ROME PREMIER OF "THE MIRACLE," THE VATICAN'S CENSORSHIP
AGENCY, THE CATHOLIC CINEMATOGRAPHIC CENTRE, DECLARED THAT THE PICTURE
"CONSTITUTES IN EFFECT AN ABOMINABLE PROFANATION FROM RELIGIOUS AND
MORAL VIEWPOINTS."  (FN4)  BY THE LATERAN AGREEMENTS AND THE ITALIAN
CONSTITUTION THE ITALIAN GOVERNMENT IS BOUND TO BAR WHATEVER MAY OFFEND
THE CATHOLIC RELIGION.  HOWEVER, THE CATHOLIC CINEMATOGRAPHIC CENTRE
DID NOT INVOKE ANY GOVERNMENTAL SANCTION THEREBY AFFORDED.  THE ITALIAN
GOVERNMENT'S CENSORSHIP AGENCY GAVE "THE MIRACLE" THE REGULAR NULLA
OSTA CLEARANCE.  THE FILM WAS FREELY SHOWN THROUGHOUT ITALY, BUT WAS
NOT A GREAT SUCCESS.  (FN5)  ITALIAN MOVIE CRITICS DIVIDED IN OPINION. 
THE CRITIC FOR I1 POPOLO, SPEAKING FOR THE CHRISTIAN DEMOCRATIC PARTY,
THE CATHOLIC PARTY, PROFUSELY PRAISED THE PICTURE AS A "BEAUTIFUL
THING, HUMANLY FELT, ALIVE, TRUE AND WITHOUT RELIGIOUS PROFANATION AS
SOMEONE HAS SAID, BECAUSE IN OUR OPINION THE MEANING OF THE CHARACTERS
IS CLEAR AND THERE IS NO POSSIBILITY OF MISUNDERSTANDING."  (FN6)
REGNOLI AGAIN REVIEWED "THE MIRACLE" FOR L'OSSERVATORE ROMANO.  (FN7)
AFTER CRITICISING THE FILM FOR TECHNICAL FAULTS, HE FOUND "THE MOST
COURAGEOUS AND INTERESTING PASSAGE OF ROSSELLINI'S WORK" IN CONTRASTING
PORTRAYALS IN THE FILM; HE ADDED:  "UNFORTUNATELY, CONCERNING MORALS,
IT IS NECESSARY TO NOTE SOME SLIGHT DEFECTS."  HE OBJECTED TO ITS
"CARNALITY" AND TO THE REPRESENTATION OF ILLEGITIMATE MOTHERHOOD.  BUT
HE DID NOT SUGGEST THAT THE PICTURE WAS "SACRILEGIOUS."  THE TONE OF
REGNOLI'S CRITIQUE WAS ONE OF RESPECT FOR ROSSELLINI, "THE ILLUSTRIOUS
ITALIAN PRODUCER."  (FN8) 

ON MARCH 2, 1949, "THE MIRACLE" WAS LICENSED IN NEW YORK STATE FOR
SHOWING WITHOUT ENGLISH SUBTITLES.  (FN9)  HOWEVER, IT WAS NEVER
EXHIBITED UNTIL AFTER A SECOND LICENSE WAS ISSUED ON NOVEMBER 30, 1950,
FOR THE TRILOGY, "WAYS OF LOVE," COMBINING "THE MIRACLE" WITH TWO
FRENCH FILMS, JEAN RENOIR'S "A DAY IN THE COUNTRY" AND MARCEL PAGNOL'S
"JOFROI."  (FN10)  ALL HAD ENGLISH SUBTITLES.  BOTH LICENSES WERE
ISSUED IN THE USUAL COURSE AFTER VIEWINGS OF THE PICTURE BY THE MOTION
PICTURE DIVISION OF THE NEW YORK STATE EDUCATION DEPARTMENT.  THE
DIVISION IS DIRECTED BY STATUTE TO "ISSUE A LICENSE" UNLESS THE FILM OR
A PART THEREOF IS OBSCENE, INDECENT, IMMORAL, INHUMAN, SACRILEGIOUS, OR
IS OF SUCH A CHARACTER THAT ITS EXHIBITION WOULD TEND TO CORRUPT MORALS
OR INCITE TO CRIME."  N.Y. EDUCATION LAW, SEC. 122.  THE TRILOGY OPENED
ON DECEMBER 12, 1950, AT THE PARIS THEATRE ON 58TH STREET IN
MANHATTAN.  IT WAS PROMPTLY ATTACKED AS "A SACRILEGIOUS AND BLASPHEMOUS
MOCKERY OF CHRISTIAN RELIGIOUS TRUTH" (FN11) BY THE NATIONAL LEGION OF
DECENCY, A PRIVATE CATHOLIC ORGANIZATION FOR FILM CENSORSHIP, WHOSE
OBJECTIVES HAVE INTERMITTENTLY BEEN APPROVED BY VARIOUS NON-CATHOLIC
CHURCH AND SOCIAL GROUPS SINCE ITS FORMATION IN 1933.  (FN12) HOWEVER,
THE NATIONAL BOARD OF REVIEW (A NON-INDUSTRY LAY ORGANIZATION DEVOTED
TO RAISING THE LEVEL OF MOTION PICTURES BY MOBILIZING PUBLIC OPINION,
UNDER THE SLOGAN "SELECTION NOT CENSORSHIP") (FN13) RECOMMENDED THE
PICTURE AS "ESPECIALLY WORTH SEEING."  NEW YORK CRITICS ON THE WHOLE
PRAISED "THE MIRACLE"; THOSE WHO DISPRAISED DID NOT SUGGEST SACRILEGE. 
(FN14)  ON DECEMBER 27 THE CRITICS SELECTED THE "WAYS OF LOVE" AS THE
BEST FOREIGN LANGUAGE FILM IN 1950.  (FN15)  MEANWHILE, ON DECEMBER 23,
EDWARD T. MCCAFFREY, COMMISSIONER OF LICENSES FOR NEW YORK CITY,
DECLARED THE FILM "OFFICIALLY AND PERSONALLY BLASPHEMOUS" AND ORDERED
IT WITHDRAWN AT THE RISK OF SUSPENSION OF THE LICENSE TO OPERATE THE
PARIS THEATRE.  (FN16)  A WEEK LATER THE PROGRAM WAS RESTORED AT THE
THEATRE UPON THE DECISION BY THE NEW YORK SUPREME COURT THAT THE CITY
LICENSE COMMISSIONER HAD EXCEEDED HIS AUTHORITY IN THAT HE WAS WITHOUT
POWERS OF MOVIE CENSORSHIP.  (FN17) 

UPON THE FAILURE OF THE LICENSE COMMISSIONER'S EFFORT TO CUT OFF
SHOWINGS OF "THE MIRACLE," THE CONTROVERSY TOOK A NEW TURN.  ON SUNDAY,
JANUARY 7, 1951, A STATEMENT OF HIS EMINENCE, FRANCIS CARDINAL
SPELLMAN, CONDEMNING THE PICTURE AND CALLING ON "ALL RIGHT THINKING
CITIZENS" TO UNITE TO TIGHTEN CENSORSHIP LAWS, WAS READ AT ALL MASSES
IN ST. PATRICK'S CATHEDRAL.  (FN18) 

THE VIEWS OF CARDINAL SPELLMAN AROUSED DISSENT AMONG OTHER DEVOUT
CHRISTIANS.  PROTESTANT CLERGYMEN, REPRESENTING VARIOUS DENOMINATIONS,
AFTER SEEING THE PICTURE, FOUND IN IT NOTHING "SACRILEGIOUS OR IMMORAL
TO THE VIEWS HELD BY CHRISTIAN MEN AND WOMEN," AND WITH A FEW
EXCEPTIONS AGREED THAT THE FILM WAS "UNQUESTIONABLY ONE OF UNUSUAL
ARTISTIC MERIT."  (FN19) 

IN THIS ESTIMATE SOME CATHOLIC LAYMEN CONCURRED.  (FN20)  THEIR
OPINION IS REPRESENTED BY THE COMMENT BY OTTO L. SPAETH, DIRECTOR OF
THE AMERICAN FEDERATION OF ARTS AND PROMINENT IN CATHOLIC LAY
ACTIVITIES: 

"AT THE OUTBREAK OF THE CONTROVERSY, I IMMEDIATELY ARRANGED FOR A
PRIVATE SHOWING OF THE FILM.  I INVITED A GROUP OF CATHOLICS, COMPETENT
AND RESPECTED FOR THEIR WRITINGS ON BOTH RELIGIOUS AND CULTURAL
SUBJECTS.  THE ESSENTIAL APPROVAL OF THE FILM WAS UNANIMOUS. 

"THERE WAS INDEED 'BLASPHEMY' IN THE PICTURE - BUT IT WAS THE
BLASPHEMY OF THE VILLAGERS, WHO STOPPED AT NOTHING, NOT EVEN THE MOCK
SINGING OF A HYMN TO THE VIRGIN, IN THEIR BRUTAL BADGERING OF THE
TRAGIC WOMAN.  THE SCATHING INDICTMENT OF THEIR EVIL BEHAVIOR IMPLICIT
IN THE FILM, WAS SEEMINGLY OVERLOOKED BY ITS CRITICS."  (FN21) 

WILLIAM P. CLANCY, A TEACHER AT THE UNIVERSITY OF NOTRE DAME, WROTE
IN THE COMMONWEAL, THE WELL-KNOWN CATHOLIC WEEKLY, THAT "THE FILM IS
NOT OBVIOUSLY BLASPHEMOUS OR OBSCENE, EITHER IN ITS INTENTION OR
EXECUTION."  (FN22)  THE COMMONWEAL ITSELF QUESTIONED THE WISDOM OF
TRANSFORMING CHURCH DOGMA WHICH CATHOLICS MAY OBEY AS "A FREE ACT" INTO
STATE-ENFORCED CENSORSHIP FOR ALL.  (FN23) ALLEN TATE, THE WELL-KNOWN
CATHOLIC POET AND CRITIC, WROTE:  "THE PICTURE SEEMS TO ME TO BE
SUPERIOR IN ACTING AND PHOTOGRAPHY BUT INFERIOR DRAMATICALLY  ...  .
IN THE LONG RUN WHAT CARDINAL SPELLMAN WILL HAVE SUCCEEDED IN DOING IS
INSULTING THE INTELLIGENCE AND FAITH OF AMERICAN CATHOLICS WITH THE
ASSUMPTION THAT A SECOND-RATE MOTION PICTURE COULD IN ANY WAY UNDERMINE
THEIR MORALS OR SHAKE THEIR FAITH."  (FN24) 

AT THE TIME "THE MIRACLE" WAS FILMED, ALL THE PERSONS HAVING
SIGNIFICANT POSITIONS IN THE PRODUCTION - PRODUCER, DIRECTOR, AND CAST
WERE CATHOLICS.  ROBERTO ROSSELLINI, WHO HAD VATICAN APPROVAL IN 1949
FOR FILMING A LIFE OF ST. FRANCIS, USING THE CAST MEMBERS OF THE
FRANCISCAN ORDER, CABLED CARDINAL SPELLMAN PROTESTING AGAINST BOYCOTT
OF "THE MIRACLE": 

"IN THE MIRACLE MEN ARE STILL WITHOUT PITY BECAUSE THEY STILL HAVE
NOT COME BACK TO GOD, BUT GOD IS ALREADY PRESENT IN THE FAITH, HOWEVER
CONFUSED, OF THAT POOR, PERSECUTED WOMAN; AND SINCE GOD IS WHEREVER A
HUMAN BEING SUFFERS AND IS MISUNDERSTOOD, THE MIRACLE OCCURS WHEN AT
THE BIRTH OF THE CHILD THE POOR, DEMENTED WOMAN REGAINS SANITY IN HER
MATERNAL LOVE."  (FN25) 

IN VIEW OF THE CONTROVERSY THUS AROUSED BY THE PICTURE, THE CHAIRMAN
OF THE BOARD OF REGENTS APPOINTED A COMMITTEE OF THREE BOARD MEMBERS TO
REVIEW THE ACTION OF THE MOTION PICTURE DIVISION IN GRANTING THE TWO
LICENSES.  AFTER VIEWING THE PICTURE ON JAN. 15, 1951, THE COMMITTEE
DECLARED IT "SACRILEGIOUS."  THE BOARD FOUR DAYS LATER ISSUED AN ORDER
TO THE LICENSEES TO SHOW CAUSE WHY THE LICENSES SHOULD NOT BE CANCELLED
IN THAT THE PICTURE WAS "SACRILEGIOUS."  THE BOARD OF REGENTS RESCINDED
THE LICENSES ON FEB. 16, 1951, SAYING THAT THE "MOCKERY OR PROFANING OF
THESE BELIEFS THAT ARE SACRED TO ANY PORTION OF OUR CITIZENSHIP IS
ABHORRENT TO THE LAWS OF THIS GREAT STATE."  ON REVIEW THE APPELLATE
DIVISION UPHELD THE BOARD OF REGENTS, HOLDING THAT THE BANNING OF ANY
MOTION PICTURE "THAT MAY FAIRLY BE DEEMED SACRILEGIOUS TO THE ADHERENTS
OF ANY RELIGIOUS GROUP  ...  IS DIRECTLY RELATED TO PUBLIC PEACE AND
ORDER" AND IS NOT A DENIAL OF RELIGIOUS FREEDOM, AND THAT THERE WAS
"SUBSTANTIAL EVIDENCE UPON WHICH THE REGENTS COULD ACT."  278 APP. DIV.
253, 257, 258, 260, 104 N.Y.S.2D 740, 743, 744-745, 747. 

THE NEW YORK COURT OF APPEALS, WITH ONE JUDGE CONCURRING IN A
SEPARATE OPINION AND TWO OTHERS DISSENTING, AFFIRMED THE ORDER OF THE
APPELLATE DIVISION.  303 N.Y. 242, 101 N.E.2D 665.  AFTER CONCLUDING
THAT THE BOARD OF REGENTS ACTED WITHIN ITS AUTHORITY AND THAT ITS
DETERMINATION WAS NOT "ONE THAT NO REASONABLE MIND COULD REACH," ID.,
AT 250-255, 256-257, 101 N.E.2D 665, 667-671, THE MAJORITY HELD, FIRST,
THAT "SACRILEGIOUS" WAS AN ADEQUATELY DEFINITE STANDARD, QUOTING A
DEFINITION FROM FUNK & WAGNALLS' DICTIONARY AND REFERRING TO OPINIONS
IN THIS COURT THAT IN PASSING USED THE TERM "PROFANE," WHICH THE NEW
YORK COURT SAID WAS A SYNONYM OF "SACRILEGIOUS"; SECOND, THAT THE
STATE'S ASSURANCE "THAT NO RELIGION  ...  SHALL BE TREATED WITH
CONTEMPT, MOCKERY, SCORN AND RIDICULE  ...  BY THOSE ENGAGED IN SELLING
ENTERTAINMENT BY WAY OF MOTION PICTURES" DOES NOT VIOLATE THE RELIGIOUS
GUARANTEE OF THE FIRST AMENDMENT; AND THIRD, THAT MOTION PICTURES ARE
NOT ENTITLED TO THE IMMUNITIES FROM REGULATION ENJOYED BY THE PRESS, IN
VIEW OF THE DECISION IN MUTUAL FILM CORP. V. OHIO INDUSTRIAL COMM'N,
236 U.S. 230.  ID., AT 255-256, 258-260, 260-262, 101 N.E.2D 670-674. 
THE TWO DISSENTING JUDGES, AFTER DEALING WITH A MATTER OF LOCAL LAW NOT
REVIEWABLE HERE, FOUND THAT THE STANDARD "SACRILEGIOUS" IS
UNCONSTITUTIONALLY VAGUE, AND, FINALLY, THAT THE CONSTITUTIONAL
GUARANTEE OF FREEDOM OF SPEECH APPLIED EQUALLY TO MOTION PICTURES AND
PREVENTED THIS CENSORSHIP.  303 N.Y. 242, 264, 101 N.E.2D 665, 675. 
BOTH STATE COURTS, AS DID THIS COURT, VIEWED "THE MIRACLE." 

ARGUMENTS BY THE PARTIES AND IN BRIEFS AMICI INVITE US TO PURSUE TO
THEIR FARTHEST REACH THE PROBLEMS IN WHICH THIS CASE IS INVOLVED. 
POSITIONS ARE ADVANCED SO ABSOLUTE AND ABSTRACT THAT IN ANY EVENT THEY
COULD NOT PROPERLY DETERMINE THIS CONTROVERSY.  SEE ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 341, 346-348.  WE ARE ASKED
TO DECIDE THIS CASE BY CHOOSING BETWEEN TWO MUTUALLY EXCLUSIVE
ALTERNATIVES:  THAT MOTION PICTURES MAY BE SUBJECTED TO UNRESTRICTED
CENSORSHIP, OR THAT THEY MUST BE ALLOWED TO BE SHOWN UNDER ANY
CIRCUMSTANCES.  BUT ONLY THE TYRANNY OF ABSOLUTES WOULD RELY ON SUCH
ALTERNATIVES TO MEET THE PROBLEMS GENERATED BY THE NEED TO ACCOMMODATE
THE DIVERSE INTERESTS AFFECTED BY THE MOTION PICTURES IN COMPACT MODERN
COMMUNITIES.  IT WOULD STARTLE MADISON AND JEFFERSON AND GEORGE MASON,
COULD THEY ADJUST THEMSELVES TO OUR DAY, TO BE TOLD THAT THE FREEDOM OF
SPEECH WHICH THEY ESPOUSED IN THE BILL OF RIGHTS AUTHORIZES A SHOWING
OF "THE MIRACLE" FROM WINDOWS FACING ST. PATRICK'S CATHEDRAL IN THE
FORENOON OF EASTER SUNDAY, (FN26) JUST AS IT WOULD STARTLE THEM TO BE
TOLD THAT ANY PICTURE, WHATEVER ITS THEME AND ITS EXPRESSION, COULD BE
BARRED FROM BEING COMMERCIALLY EXHIBITED.  THE GENERAL PRINCIPLE OF
FREE SPEECH, EXPRESSED IN THE FIRST AMENDMENT AS TO ENCROACHMENTS BY
CONGRESS, AND INCLUDED AS IT IS IN THE FOURTEENTH AMENDMENT, BINDING ON
THE STATES, MUST BE PLACED IN ITS HISTORICAL AND LEGAL CONTEXTS.  THE
CONSTITUTION, WE CANNOT RECALL TOO OFTEN, IS AN ORGANISM, NOT MERELY A
LITERARY COMPOSITION. 

IF THE NEW YORK COURT OF APPEALS HAD GIVEN "SACRILEGIOUS" THE MEANING
IT HAS HAD IN CATHOLIC THOUGHT SINCE ST. THOMAS AQUINAS FORMULATED ITS
SCOPE, AND HAD SUSTAINED A FINDING BY THE BOARD OF REGENTS THAT "THE
MIRACLE" CAME WITHIN THAT SCOPE, THIS COURT WOULD HAVE TO MEET SOME OF
THE BROADER QUESTIONS REGARDING THE RELATION TO THE MOTION PICTURE
INDUSTRY OF THE GUARANTEES OF THE FIRST AMENDMENT SO FAR AS REFLECTED
IN THE FOURTEENTH.  BUT THE NEW YORK COURT DID NOT CONFINE
"SACRILEGIOUS" WITHIN SUCH TECHNICAL, THOMIST LIMITS, NOR WITHIN ANY
SPECIFIC, OR EVEN APPROXIMATELY SPECIFIED, LIMITS.  IT MAY FAIRLY BE
SAID THAT THAT COURT DEEMED "SACRILEGIOUS" A SELF-DEFINING TERM, A WORD
THAT CARRIES A WELL-KNOWN, SETTLED MEANING IN THE COMMON SPEECH OF
MEN. 

SO FAR AS THE COURT OF APPEALS SOUGHT TO SUPPORT ITS NOTION THAT
"SACRILEGIOUS" HAS THE NECESSARY PRECISION OF MEANING WHICH THE DUE
PROCESS CLAUSE ENJOINS FOR STATUTES REGULATING MEN'S ACTIVITIES, IT
RELIED ON THIS DEFINITION FROM FUNK & WAGNALLS' DICTIONARY:  "THE ACT
OF VIOLATING OR PROFANING ANYTHING SACRED."  BUT THIS MERELY DEFINES BY
TURNING AN ADJECTIVE INTO A NOUN AND BRINGING IN TWO NEW WORDS EQUALLY
UNDEFINED.  IT LEAVES WIDE OPEN THE QUESTION AS TO WHAT PERSONS,
DOCTRINES OR THINGS ARE "SACRED."  IT SHEDS NO LIGHT ON WHAT
REPRESENTATIONS ON THE MOTION PICTURE SCREEN WILL CONSTITUTE
"PROFANING" THOSE THINGS WHICH THE STATE CENSORS FIND TO BE "SACRED." 

TO CRITICIZE OR ASSAIL RELIGIOUS DOCTRINE MAY WOUND TO THE QUICK
THOSE WHO ARE ATTACHED TO THE DOCTRINE AND PROFOUNDLY CHERISH IT.  BUT
TO BAR SUCH PICTORIAL DISCUSSION IS TO SUBJECT NON-CONFORMISTS TO THE
RULE OF SECTS. 

EVEN IN MUTUAL FILM CORP. V. OHIO INDUSTRIAL COMM'N 236 U.S. 230, IT
WAS DEEMED NECESSARY TO FIND THAT THE TERMS "EDUCATIONAL, MORAL,
AMUSING OR HARMLESS" DO NOT LEAVE "DECISION TO ARBITRARY JUDGMENT." 
SUCH GENERAL WORDS WERE FOUND TO "GET PRECISION FROM THE SENSE AND
EXPERIENCE OF MEN."  ID., AT 245, 246.  THIS CANNOT BE SAID OF
"SACRILEGIOUS."  IF THERE IS ONE THING THAT THE HISTORY OF RELIGIOUS
CONFLICTS SHOWS, IT IS THAT THE TERM "SACRILEGIOUS" - IF BY THAT IS
IMPLIED OFFENSE TO THE DEEP CONVICTIONS OF MEMBERS OF DIFFERENT SECTS,
WHICH IS WHAT THE COURT OF APPEALS SEEMS TO MEAN SO FAR AS IT MEANS
ANYTHING PRECISELY - DOES NOT GAIN "PRECISION FROM THE SENSE AND
EXPERIENCE OF MEN." 

THE VAST APPARATUS OF INDICES AND DIGESTS, WHICH MIRRORS OUR LAW,
AFFORDS NOT CLUE TO A JUDICIAL DEFINITION OF SACRILEGE.  NOT ONE CASE,
BARRING THE PRESENT, HAS BEEN UNCOVERED WHICH CONSIDERS THE MEANING OF
THE TERM IN ANY CONTEXT.  NOR HAS THE PRACTICE UNDER THE NEW YORK LAW
CONTRIBUTED LIGHT.  THE MOTION PICTURE DIVISION OF THE EDUCATION
DEPARTMENT DOES NOT SUPPORT WITH EXPLANATORY STATEMENTS ITS ACTION ON
ANY SPECIFIC MOTION PICTURE, WHICH WE ARE ADVISED IS ITSELF NOT MADE
PUBLIC.  OF THE FIFTY-ODD REPORTED APPEALS TO THE BOARD OF REGENTS FROM
DENIALS OF LICENSES BY THE DIVISION, ONLY THREE CONCERN THE CATEGORY
"SACRILEGIOUS."  (FN27)  IN THESE CASES, AS IN OTHERS UNDER THE ACT,
THE BOARD'S REPORTED OPINION CONFINES ITSELF TO A BARE FINDING THAT THE
FILM WAS OR WAS NOT "SACRILEGIOUS," WITHOUT SO MUCH AS A DESCRIPTION OF
THE ALLEGEDLY OFFENSIVE MATTER, OR EVEN OF THE FILM AS A WHOLE TO
ENLIGHTEN THE INQUIRER.  WELL-EQUIPPED LAW LIBRARIES ARE NOT NIGGARDLY
IN THEIR REFLECTION OF "THE SENSE AND EXPERIENCE OF MEN," BUT WE MUST
SEARCH ELSEWHERE FOR ANY WHICH GIVES TO "SACRILEGE" ITS MEANING. 

SACRILEGE, (FN28) AS A RESTRICTED ECCLESIASTICAL CONCEPT, HAS A LONG
HISTORY.  NATURALLY ENOUGH, RELIGIONS HAVE SOUGHT TO PROTECT THEIR
PRIESTS AND ANOINTED SYMBOLS FROM PHYSICAL INJURY.  (FN29) BUT HISTORY
DEMONSTRATES THAT THE TERM IS HOPELESSLY VAGUE WHEN IT GOES BEYOND SUCH
ECCLESIASTICAL DEFINITENESS AND IS USED AT LARGE AS THE BASIS FOR
PUNISHING DEVIATION FROM DOCTRINE. 

ETYMOLOGICALLY "SACRILEGE" IS LIMITED TO CHURCH-ROBBING:  SACER,
SACRED, AND LEGERE, TO STEAL OR PICK OUT.  BUT WE ARE TOLD THAT
"ALREADY IN CICERO'S TIME IT HAD GROWN TO INCLUDE IN POPULAR SPEECH ANY
INSULT OR INJURY TO SACRED THINGS."  (FN30)  "IN PRIMITIVE RELIGIONS
SACRILEGE IS INCLUSIVE OF ALMOST EVERY SERIOUS OFFENCE EVEN IN FIELDS
NOW REGARDED AS MERELY SOCIAL OR POLITICAL  ...  ."  (FN31)  THE
CONCEPT OF "TABU" IN PRIMITIVE SOCIETY IS THUS CLOSE TO THAT OF
"SACRILEGE."  (FN32) AND IN "THE THEODOSIAN CODE THE VARIOUS CRIMES
WHICH ARE ACCOUNTED SACRILEGE INCLUDE - APOSTASY, HERESY, SCHISM,
JUDAISM, PAGANISM, ATTEMPTS AGAINST THE IMMUNITY OF CHURCHES AND CLERGY
OR PRIVILEGES OF CHURCH COURTS, THE DESECRATION OF SACRAMENTS, ETC.,
AND EVEN SUNDAY.  ALONG WITH THESE CRIMES AGAINST RELIGION WENT TREASON
TO THE EMPEROR, OFFENSES AGAINST THE LAWS, ESPECIALLY COUNTERFEITING,
DEFRAUDATION IN TAXES, SEIZURE OF CONFISCATED PROPERTY, EVIL CONDUCT OF
IMPERIAL OFFICERS, ETC."  (FN33)  DURING THE MIDDLE AGES THE CHURCH
CONSIDERABLY DELIMITED THE APPLICATION OF THE TERM.  ST. THOMAS AQUINAS
CLASSIFIED THE OBJECTS OF "SACRILEGE" AS PERSONS, PLACES, AND THING. 
(FN34)  THE INJURIES WHICH WOULD CONSTITUTE "SACRILEGE" RECEIVED
SPECIFIC AND DETAILED ILLUSTRATION.  (FN35)  THIS TEACHING OF AQUINAS
IS, I BELIEVE, STILL SUBSTANTIALLY THE BASIS OF THE OFFICIAL CATHOLIC
DOCTRINE OF SACRILEGE.  THUS, FOR THE ROMAN CATHOLIC CHURCH, THE TERM
CAME TO HAVE A FAIRLY DEFINITE MEANING, BUT ONE, IN GENERAL, LIMITED TO
PROTECTING THINGS PHYSICAL AGAINST INJURIOUS ACTS.  (FN36)  APOSTASY,
HERESY, AND BLASPHEMY COEXISTED AS RELIGIOUS CRIMES ALONGSIDE
SACRILEGE; THEY WERE PECULIARLY IN THE REALM OF RELIGIOUS DOGMA AND
DOCTRINE, AS "SACRILEGE" WAS NOT.  IT IS TRUE THAT SPELMAN, WRITING
"THE HISTORY AND FATE OF SACRILEGE" IN 1632, INCLUDED IN "SACRILEGE"
ACTS WHEREBY "THE VERY DEITY IS INVADED, PROFANED, OR ROBBED OF ITS
GLORY  ...  .  IN THIS HIGH SIN ARE BLASPHEMERS, SORCERERS, WITCHES,
AND ENCHANTERS."  (FN37)  BUT HIS MAIN THEME WAS THE "SPOIL OF CHURCH
LANDS DONE BY HENRY VIII" AND THE MISFORTUNES THAT SUBSEQUENTLY BEFELL
THE FAMILIES OF THE RECIPIENTS OF FORMER ECCLESIASTICAL PROPERTY AS
DIVINE PUNISHMENT.    TO THE EXTENT THAT ENGLISH LAW TOOK JURISDICTION
TO PUNISH "SACRILEGE," THE TERM MEANT THE STEALING FROM A CHURCH, OR
OTHERWISE DOING DAMAGE TO CHURCH PROPERTY.  (FN38)  THIS SPECIAL
PROTECTION AGAINST "SACRILEGE," THAT IS, PROPERTY DAMAGE, WAS GRANTED
ONLY TO THE ESTABLISHED CHURCH.  (FN39)  SINCE THE REPEAL LESS THAN A
CENTURY AGO OF THE ENGLISH LAW PUNISHING "SACRILEGE" AGAINST THE
PROPERTY OF THE ESTABLISHED CHURCH, RELIGIOUS PROPERTY HAS RECEIVED
LITTLE SPECIAL PROTECTION.  THE PROPERTY OF ALL SECTS HAS HAD
SUBSTANTIALLY THE SAME PROTECTION AS IS ACCORDED NON-RELIGIOUS
PROPERTY.  (FN40)  AT NO TIME UP TO THE PRESENT HAS ENGLISH LAW KNOWN
"SACRILEGE" TO BE USED IN ANY WIDER SENSE THAN THE PHYSICAL INJURY TO
CHURCH PROPERTY.  IT IS TRUE THAT, AT TIMES IN THE PAST, ENGLISH LAW
HAS TAKEN JURISDICTION TO PUNISH DEPARTURES FROM ACCEPTED DOGMA OR
RELIGIOUS PRACTICE OR THE EXPRESSION OF PARTICULAR RELIGIOUS OPINIONS,
BUT NEVER HAVE THESE "OFFENSES" BEEN DENOMINATED "SACRILEGE." 
APOSTASY, HERESY, OFFENSES AGAINST THE ESTABLISHED CHURCH, BLASPHEMY,
PROFANATION OF THE LORD'S DAY, ETC., WERE DISTINCT CRIMINAL OFFENSES,
CHARACTERIZED BY BLACKSTONE AS "OFFENSES AGAINST GOD AND RELIGION." 
(FN41)  THESE INVIDIOUS REFLECTIONS UPON RELIGIOUS SUSCEPTIBILITIES
WERE NOT COVERED UNDER SACRILEGE AS THEY MIGHT BE UNDER THE COURT OF
APPEALS' OPINION.  ANYONE DOUBTING THE DANGEROUS UNCERTAINTY OF THE NEW
YORK DEFINITION, WHICH MAKES "SACRILEGE" OVERLAP THESE OTHER "OFFENSES
AGAINST RELIGION," NEED ONLY READ BLACKSTONE'S ACCOUNT OF THE BROAD AND
VARYING CONTENT GIVEN EACH OF THESE OFFENSES. 

A STUDENT OF ENGLISH LEXICOGRAPHY WOULD DESPAIR OF FINDING THE
MEANING ATTRIBUTED TO "SACRILEGE" BY THE NEW YORK COURT.  (FN42)  MOST
DICTIONARIES DEFINE THE CONCEPT IN THE LIMITED SENSE OF THE PHYSICAL
ABUSE OF PHYSICAL OBJECTS.  THE DEFINITIONS GIVEN FOR "SACRILEGE" BY
TWO DICTIONARIES PUBLISHED IN 1742 AND 1782 ARE TYPICAL.  BAILEY'S
DEFINED IT AS "THE STEALING OF SACRED THINGS, CHURCH ROBBING; AN
ALIENATION TO LAYMEN, AND TO PROFANE AND COMMON PURPOSES, OF WHAT WAS
GIVEN TO RELIGIOUS PERSONS, AND TO PIOUS USES."  (FN43)  BARCLAY'S SAID
IT IS "THE CRIME OF TAKING ANY THING DEDICATED TO DIVINE WORSHIP, OR
PROFANING ANY THING SACRED," WHERE "TO PROFANE" IS DEFINED "TO APPLY
ANY THING SACRED TO COMMON USES.  TO BE IRREVERENT TO SACRED PERSONS OR
THINGS."  (FN44)  THE SAME DICTIONARIES DEFINED "BLASPHEMY," A
PECULIARLY VERBAL OFFENSE, IN MUCH BROADER TERMS THAN "SACRILEGE,"
INDEED IN TERMS WHICH THE NEW YORK COURT FINDS ENCOMPASSED BY
"SACRILEGIOUS."  FOR EXAMPLE, BARCLAY SAID "BLASPHEMY" IS "AN OFFERING
SOME INDIGNITY TO GOD, ANY PERSON OF THE TRINITY, ANY MESSENGERS FROM
GOD, HIS HOLY WRIT, OR THE DOCTRINES OF RELEVATION."  (FN45)  IT IS
HARDLY NECESSARY TO COMMENT THAT THE LIMITS OF THIS DEFINITION REMAIN
TOO UNCERTAIN TO JUSTIFY CONSTRAINING THE CREATIVE EFFORTS OF THE
IMAGINATION BY FEAR OF PAINS AND PENALTIES IMPOSED BY A NECESSARILY
SUBJECTIVE CENSORSHIP.  IT IS TRUE THAT SOME EARLIER DICTIONARIES
ASSIGNED TO "SACRILEGE" THE BROADER MEANING OF "ABUSING SACRAMENTS OR
HOLY MYSTERIES," (FN46) BUT THE BROADER MEANING IS MORE INDEFINITE, NOT
LESS.  NOAH WEBSTER FIRST PUBLISHED HIS AMERICAN DICTIONARY IN 1828. 
BOTH IT AND THE LATER DICTIONARIES PUBLISHED BY THE MERRIAM COMPANY,
WEBSTER'S INTERNATIONAL DICTIONARY AND WEBSTER'S NEW INTERNATIONAL
DICTIONARY, HAVE GONE THROUGH DOZENS OF EDITIONS AND PRINTINGS,
REVISIONS AND EXPANSIONS.  IN ALL EDITIONS THROUGHOUT 125 YEARS, THESE
AMERICAN DICTIONARIES HAVE DEFINED "SACRILEGE" AND "SACRILEGIOUS" TO
ECHO SUBSTANTIALLY THE NARROW, TECHNICAL DEFINITIONS FROM THE EARLIER
BRITISH DICTIONARIES COLLECTED IN THE APPENDIX, POST, P. 533.  (FN47) 

THE NEW YORK COURT OF APPEALS' STATEMENT THAT THE DICTIONARY
"FURNISHES A CLEAR DEFINITION," JUSTIFYING THE VAGUE SCOPE IT GAVE TO
"SACRILEGIOUS," SURELY WAS MADE WITHOUT REGARD TO THE LEXICOGRAPHIC
HISTORY OF THE TERM.  AS A MATTER OF FACT, THE DEFINITION FROM FUNK &
WAGNALLS' USED BY THE COURT OF APPEALS IS TAKEN STRAIGHT FROM 18TH
CENTURY DICTIONARIES, PARTICULARLY DOCTOR JOHNSON'S.  (FN48)  IN LIGHT
OF THAT HISTORY IT WOULD SEEM THAT THE FUNK & WAGNALLS' DEFINITION USES
"SACRILEGE" IN ITS HISTORICALLY RESTRICTED MEANING, WHICH WAS NOT, AND
COULD HARDLY HAVE BEEN, THE BASIS FOR CONDEMNING "THE MIRACLE."  IF THE
NEW YORK COURT READS THE FUNK & WAGNALLS' DEFINITION IN A BROADER
SENSE, IN A SENSE FOR WHICH HISTORY AND EXPERIENCE PROVIDE NO GLOSS, IT
INEVITABLY LEFT THE CENSOR FREE TO JUDGE BY WHATEVER DOGMA HE DEEMS
"SACRED" AND TO BAN WHATEVER MOTION PICTURES HE MAY ASSUME WOULD
"PROFANE" RELIGIOUS DOCTRINE WIDELY ENOUGH HELD TO AROUSE PROTEST. 

EXAMINATION OF SUCCESSIVE EDITIONS OF THE ENCYCLOPAEDIA BRITANNICA
OVER NEARLY TWO CENTURIES UP TO THE PRESENT DAY GIVE NO MORE HELP THAN
THE DICTIONARIES.  FROM 1768 TO THE ELEVENTH EDITION IN 1911, MERELY A
BRIEF DICTIONARY-TYPE DEFINITION WAS GIVEN FOR "SACRILEGE."  (FN49)
THE ELEVENTH EDITION, WHICH FIRST PUBLISHED A LONGER ARTICLE, WAS
INTRODUCED AS FOLLOWS:  "THE VIOLATION OR PROFANATION OF SACRED THINGS,
A CRIME OF VARYING SCOPE IN DIFFERENT RELIGIONS.  IT IS NATURALLY MUCH
MORE GENERAL AND ACCOUNTED MORE DREADFUL IN THOSE PRIMITIVE RELIGIONS
IN WHICH CULTURAL OBJECTS PLAY SO GREAT A PART, THAN IN MORE HIGHLY
SPIRITUALIZED RELIGIONS WHERE THEY TEND TO DISAPPEAR.  BUT WHEREVER THE
IDEA OF SACRED EXISTS, SACRILEGE IS POSSIBLE."  (FN50)  THE ARTICLE ON
"SACRILEGE" IN THE CURRENT EDITION OF THE ENCYCLOPAEDIA BRITANNICA IS
SUBSTANTIALLY THE SAME AS THAT IN THE 1911 EDITION. 

HISTORY TEACHES US THE INDEFINITENESS OF THE CONCEPT "SACRILEGIOUS"
IN ANOTHER RESPECT.  IN THE CASE OF MOST COUNTRIES AND TIMES WHERE THE
CONCEPT OF SACRILEGE HAS BEEN OF IMPORTANCE, THERE HAS EXISTED AN
ESTABLISHED CHURCH OR A STATE RELIGION.  THAT WHICH WAS "SACRED," AND
SO WAS PROTECTED AGAINST "PROFANING," WAS DESIGNATED IN EACH CASE BY
ECCLESIASTICAL AUTHORITY.  WHAT MIGHT HAVE BEEN DEFINITE WHEN A
CONTROLLING CHURCH IMPOSED A DETAILED SCHEME OF OBSERVANCES BECOMES
IMPOSSIBLY CONFUSED AND UNCERTAIN WHEN HUNDREDS OF SECTS, WITH WIDELY
DISPARATE AND OFTEN DIRECTLY CONFLICTING IDEAS OF SACREDNESS, ENJOY,
WITHOUT DISCRIMINATION AND IN EQUAL MEASURE, CONSTITUTIONALLY
GUARANTEED RELIGIOUS FREEDOM.  IN THE ROME OF THE LATE EMPERORS, THE
ENGLAND OF JAMES I, OR THE GENEVA OF CALVIN, AND TODAY IN ROMAN
CATHOLIC SPAIN, MOHAMMEDAN SAUDI ARABIA, OR ANY OTHER COUNTRY WITH A
MONOLITHIC RELIGION, THE CATEGORY OF THINGS SACRED MIGHT HAVE CLEARLY
DEFINABLE LIMITS.  BUT IN AMERICA THE MULTIPLICITY OF THE IDEAS OF
"SACREDNESS" HELD WITH EQUAL BUT CONFLICTING FERVOR BY THE GREAT NUMBER
OF RELIGIOUS GROUPS MAKES THE TERM "SACRILEGIOUS" TOO INDEFINITE TO
SATISFY CONSTITUTIONAL DEMANDS BASED ON REASON AND FAIRNESS. 

IF "SACRILEGIOUS" BANS MORE THAN THE PHYSICAL ABUSE OF SACRED
PERSONS, PLACES, OR THINGS, IF IT PERMITS CENSORSHIP OF RELIGIOUS
OPINIONS, WHICH IS THE EFFECT OF THE HOLDING BELOW, THE TERM WILL
INCLUDE WHAT MAY BE FOUND TO BE "BLASPHEMOUS."  ENGLAND'S EXPERIENCE
WITH THAT TREACHEROUS WORD SHOULD GIVE US PAUSE, APART FROM OUR
REQUIREMENTS FOR THE SEPARATION OF CHURCH AND STATE.  THE CRIME OF
BLASPHEMY IN SEVENTEENTH CENTURY ENGLAND WAS THE CRIME OF DISSENTING
FROM WHATEVER WAS THE CURRENT RELIGIOUS DOGMA.  (FN51)  KING JAMES I'S
"BOOK OF SPORTS" WAS FIRST REQUIRED READING IN THE CHURCHES; LATER ALL
COPIES WERE CONSIGNED TO THE FLAMES.  TO ATTACK THE MASS WAS ONCE
BLASPHEMOUS; TO PERFORM IT BECAME SO.  AT DIFFERENT TIMES DURING THAT
CENTURY, WITH THE SHIFTS IN THE ATTITUDE OF GOVERNMENT TOWARDS
PARTICULAR RELIGIOUS VIEWS, PERSONS WHO DOUBTED THE DOCTRINE OF THE
TRINITY (E.G., UNITARIANS, UNIVERSALISTS, ETC.) OR THE DIVINITY OF
CHRIST, OBSERVED THE SABBATH ON SATURDAY, DENIED THE POSSIBILITY OF
WITCHCRAFT, REPUDIATED CHILD BAPTISM OR URGED METHODS OF BAPTISM OTHER
THAN SPRINKLING, WERE CHARGED AS BLASPHEMERS, OR THEIR BOOKS WERE
BURNED OR BANNED AS BLASPHEMOUS.  BLASPHEMY WAS THE CHAMELEON PHRASE
WHICH MEANT THE CRITICISM OF WHATEVER THE RULING AUTHORITY OF THE
MOMENT ESTABLISHED AS ORTHODOX RELIGIOUS DOCTRINE.  (FN52)  WHILE IT IS
TRUE THAT BLASPHEMY PROSECUTIONS HAVE CONTINUED IN ENGLAND - ALTHOUGH
IN LESSENING NUMBERS - INTO THE PRESENT CENTURY, (FN53) THE EXISTENCE
THERE OF AN ESTABLISHED CHURCH GIVES MORE DEFINITE CONTOURS TO THE
CRIME IN ENGLAND THAN THE TERM "SACRILEGIOUS" CAN POSSIBLY HAVE IN THIS
COUNTRY.  MOREOVER, THE SCOPE OF THE ENGLISH COMMON-LAW CRIME OF
BLASPHEMY HAS BEEN CONSIDERABLY LIMITED BY THE DECLARATION THAT "IF THE
DECENCIES OF CONTROVERSY ARE OBSERVED, EVEN THE FUNDAMENTALS OF
RELIGION MAY BE ATTACKED," (FN54) A LIMITATION WHICH THE NEW YORK COURT
HAS NOT PUT UPON THE BOARD OF REGENTS' POWER TO DECLARE A MOTION
PICTURE "SACRILEGIOUS." 

IN CANTWELL V. CONNECTICUT, 310 U.S. 296, 310, MR. JUSTICE ROBERTS,
SPEAKING FOR THE WHOLE COURT, SAID:  "IN THE REALM OF RELIGIOUS FAITH,
AND IN THAT OF POLITICAL BELIEF, SHARP DIFFERENCES ARISE.  IN BOTH
FIELDS THE TENETS OF ONE MAN MAY SEEM THE RANKEST ERROR TO HIS
NEIGHBOR."  CONDUCT AND BELIEFS DEAR TO ONE MAY SEEM THE RANKEST
"SACRILEGE" TO ANOTHER.  A FEW EXAMPLES SUFFICE TO SHOW THE
DIFFICULTIES FACING A CONSCIENTIOUS CENSOR OR MOTION PICTURE PRODUCER
OR DISTRIBUTOR IN DETERMINING WHAT THE NEW YORK STATUTE CONDEMNS AS
SACRILEGIOUS.  A MOTION PICTURE PORTRAYING CHRIST AS DIVINE - FOR
EXAMPLE, A MOVIE SHOWING MEDIEVAL CHURCH ART - WOULD OFFEND THE
RELIGIOUS OPINIONS OF THE MEMBERS OF SEVERAL PROTESTANT DENOMINATIONS
WHO DO NOT BELIEVE IN THE TRINITY, AS WELL AS THOSE OF A NON-CHRISTIAN
FAITH.  CONVERSELY, ONE SHOWING CHRIST AS MERELY AN ETHICAL TEACHER
COULD NOT BUT OFFEND MILLIONS OF CHRISTIANS OF MANY DENOMINATIONS. 
WHICH IS "SACRILEGIOUS"?  THE DOCTRINE OF TRANSUBSTANTIATION, AND THE
VENERATION OF RELICS OR PARTICULAR STONE AND WOOD EMBODIMENTS OF SAINTS
OR DIVINITY, BOTH SACRED TO CATHOLICS, ARE OFFENSIVE TO A GREAT MANY
PROTESTANTS, AND THEREFORE FOR THEM SACRILEGIOUS IN THE VIEW OF THE NEW
YORK COURT.  IS A PICTURE TREATING EITHER SUBJECT, WHETHER
SYMPATHETICALLY, UNSYMPATHETICALLY, OR NEUTRALLY, "SACRILEGIOUS"?  IT
IS NOT A SUFFICIENT ANSWER TO SAY THAT "SACRILEGIOUS" IS DEFINITE,
BECAUSE ALL SUBJECTS THAT IN ANY WAY MIGHT BE INTERPRETED AS OFFENDING
THE RELIGIOUS BELIEFS OF ANY ONE OF THE 300 SECTS OF THE UNITED STATES
(FN55) ARE BANNED IN NEW YORK.  TO ALLOW SUCH VAGUE, UNDEFINABLE POWERS
OF CENSORSHIP TO BE EXERCISED IS BOUND TO HAVE STULTIFYING CONSEQUENCES
ON THE CREATIVE PROCESS OF LITERATURE AND ART - FOR THE FILMS ARE
DERIVED LARGELY FROM LITERATURE.  HISTORY DOES NOT ENCOURAGE RELIANCE
ON THE WISDOM AND MODERATION OF THE CENSOR AS A SAFEGUARD IN THE
EXERCISE OF SUCH DRASTIC POWER OVER THE MINDS OF MEN.  WE NOT ONLY DO
NOT KNOW BUT CANNOT KNOW WHAT IS CONDEMNABLE BY "SACRILEGIOUS."  AND IF
WE CANNOT TELL, HOW ARE THOSE TO BE GOVERNED BY THE STATUTE TO TELL? 

IT IS THIS IMPOSSIBILITY OF KNOWING HOW FAR THE FORM OF WORDS BY
WHICH THE NEW YORK COURT OF APPEALS EXPLAINED "SACRILEGIOUS" CARRIES
THE PROSCRIPTION OF RELIGIOUS SUBJECTS THAT MAKES THE TERM
UNCONSTITUTIONALLY VAGUE.  (FN56)  TO STOP SHORT OF PROSCRIBING ALL
SUBJECTS THAT MIGHT CONCEIVABLY BE INTERPRETED TO BE RELIGIOUS,
INEVITABLY CREATES A SITUATION WHEREBY THE CENSOR BANS ONLY THAT
AGAINST WHICH THERE IS A SUBSTANTIAL OUTCRY FROM A RELIGIOUS GROUP. 
AND THAT IS THE FAIR INFERENCE TO BE DRAWN, AS A MATTER OF EXPERIENCE,
FROM WHAT HAS BEEN HAPPENING UNDER THE NEW YORK CENSORSHIP. 
CONSEQUENTLY THE FILM INDUSTRY, NORMALLY NOT GUIDED BY CREATIVE
ARTISTS, AND CAUTIOUS IN PUTTING LARGE CAPITAL TO THE HAZARDS OF
COURAGE, WOULD BE GOVERNED BY ITS NOTIONS OF THE FEELINGS LIKELY TO BE
AROUSED BY DIVERSE RELIGIOUS SECTS, CERTAINLY THE POWERFUL ONES.  THE
EFFECT OF SUCH DEMANDS UPON ART AND UPON THOSE WHOSE FUNCTION IS TO
ENHANCE THE CULTURE OF A SOCIETY NEED NOT BE LABORED. 

TO PARAPHRASE DOCTOR JOHNSON, IF NOTHING MAY BE SHOWN BUT WHAT
LICENSORS MAY HAVE PREVIOUSLY APPROVED, POWER, THE YEA-OR-NAY-SAYING BY
OFFICIALS, BECOMES THE STANDARD OF THE PERMISSIBLE.  PROHIBITION
THROUGH WORDS THAT FAIL TO CONVEY WHAT IS PERMITTED AND WHAT IS
PROHIBITED FOR WANT OF APPROPRIATE OBJECTIVE STANDARDS, OFFENDS DUE
PROCESS IN TWO WAYS.  FIRST, IT DOES NOT SUFFICIENTLY APPRISE THOSE
BENT ON OBEDIENCE OF LAW OF WHAT MAY REASONABLY BE FORESEEN TO BE FOUND
ILLICIT BY THE LAW-ENFORCING AUTHORITY, WHETHER COURT OF JURY OR
ADMINISTRATIVE AGENCY.  SECONDLY, WHERE LICENSING IS RESTED, IN THE
FIRST INSTANCE, IN AN ADMINISTRATIVE AGENCY, THE AVAILABLE JUDICIAL
REVIEW IS IN EFFECT RENDERED INOPERATIVE.  ON THE BASIS OF SUCH A
PORTMANTEAU WORD AS "SACRILEGIOUS," THE JUDICIARY HAS NO STANDARDS WITH
WHICH TO JUDGE THE VALIDITY OF ADMINISTRATIVE ACTION WHICH NECESSARILY
INVOLVES, AT LEAST IN LARGE MEASURE, SUBJECTIVE DETERMINATIONS.  THUS,
THE ADMINISTRATIVE FIRST STEP BECOMES THE LAST STEP. 

FROM ALL THAT HAS BEEN SAID ONE IS COMPELLED TO CONCLUDE THAT THE
TERM "SACRILEGIOUS" HAS COME DOWN THE STREAM OF TIME ENCRUSTED WITH A
SPECIALIZED, STRICTLY CONFINED MEANING, PERTAINING TO THINGS IN SPACE
NOT THINGS IN THE MIND.  THE NEW YORK COURT OF APPEALS DID NOT GIVE THE
TERM THIS CALCULABLE CONTENT.  IT APPLIED IT TO THINGS IN THE MIND, AND
THINGS IN THE MIND SO UNDEFINED, SO AT LARGE, AS TO BE MORE PATENTLY IN
DISREGARD OF THE REQUIREMENT FOR DEFINITENESS, AS THE BASIS OF
PROSCRIPTIONS AND LEGAL SANCTIONS FOR THEIR DISOBEDIENCE, THAN THE
MEASURES THAT WERE CONDEMNED AS VIOLATIVE OF DUE PROCESS IN UNITED
STATES V. COHEN GROCERY CO., 255 U.S. 81; A.B. SMALL CO. V. AMERICAN
SUGAR REFINING CO., 267 U.S. 233; CONNALLY V. GENERAL CONSTRUCTION CO.,
269 U.S. 385; WINTERS V. NEW YORK, 333 U.S. 507; KUNZ V. NEW YORK, 340
U.S. 290.  THIS PRINCIPLE IS ESPECIALLY TO BE OBSERVED WHEN WHAT IS SO
VAGUE SEEKS TO FETTER THE MIND AND PUT WITHIN UNASCERTAINABLE BOUNDS
THE VARIETIES OF RELIGIOUS EXPERIENCE. 

FN1  CROWTHER, "THE STRANGE CASE OF 'THE MIRACLE,'" ATLANTIC MONTHLY,
APRIL, 1951, PP. 35, 36-37. 

FN2  L'OSSERVATORE ROMANO, AUG. 25, 1948, P. 2, COL. 1, TRANSLATED IN
PART IN THE COMMONWEAL, MAR. 23, 1951, P. 592, COL. 2. 

FN3  IBID. 

FN4  N.Y. TIMES, FEB. 11, 1951, SEC. 2, P. 4, COLS.  4-5. 

FN5  TIME, FEB. 19, 1951, PP. 60-61. 

FN6  I1 POPOLO, NOV. 3, 1948, P. 2, COL. 9, TRANSLATED BY CAMILLE M.
CIANFARRA, N.Y. TIMES, FEB. 11, 1951, SEC. 2, P. 4, COL. 5. 

FN7  L'OSSERVATORE ROMANO, NOV. 12, 1948, P. 2, COLS.  3-4. 

FN8  IBID. 

FN9  "THE MIRACLE" WAS PASSED BY CUSTOMS.  TO IMPORT "ANY OBSCENE,
LEWD, LASCIVIOUS, OR FILTHY ...  MOTION-PICTURE FILM" IS A CRIMINAL
OFFENSE, 35 STAT. 1088, 1138, 18 U.S.C. (SUPP. IV) SEC. 1462; AND
IMPORTATION OF ANY OBSCENE "PRINT" OR "PICTURE" IS BARRED.  46 STAT.
590, 688, 19 U.S.C. SEC. 1305.  COMPARE THE PROVISION, "ALL
PHOTOGRAPHIC-FILMS IMPORTED  ...  SHALL BE SUBJECT TO SUCH CENSORSHIP
AS MAY BE IMPOSED BY THE SECRETARY OF THE TREASURY."  38 STAT. 114, 151
(1913), 42 STAT. 858, 920 (1922), REPEALED 46 STAT. 590, 762 (1930). 
SEE INGLIS, FREEDOM OF THE MOVIES, 68. 

FN10  LIFE, JAN. 15, 1951, P. 63; SAT.  REV.  OF LIT., JAN. 27, 1951,
PP. 28-29. 

FN11  N.Y. TIMES, DEC. 31, 1950, P. 23, COL. 4. 

FN12  INGLIS, FREEDOM OF THE MOVIES, 120 ET SEQ. 

FN13  ID., AT 74-82. 

FN14  HOWARD BARNES, N.Y. HERALD TRIBUNE, DEC. 13, 1950, P. 30,
COLS.  1-3:  "IT WOULD BE WISE TO TIME A VISIT TO THE PARIS IN ORDER TO
SKIP ('THE MIRACLE')  ...  .  ALTOGETHER IT LEAVES A VERY BAD TASTE IN
ONE'S MOUTH." 

BOSLEY CROWTHER, N.Y. TIMES, DEC. 13, 1950, P. 50, COLS.  2-3:  "EACH
ONE OF THE (THREE) ITEMS  ... STACKS UP WITH THE MAJOR ACHIEVEMENTS OF
THE RESPECTIVE DIRECTORS  ...  .  'THE MIRACLE' IS BY FAR THE MOST
OVERPOWERING AND PROVOCATIVE OF THE LOT."  N.Y. TIMES, DEC. 17, 1950,
SEC. 2, P. 3, COLS.  7-8:  "A PICTURE OF MOUNTING INTENSITY THAT WRINGS
THE LAST PANG OF EMOTION AS IT HITS ITS DRAMATIC PEAK  ...  VASTLY
COMPASSIONATE COMPREHENSION OF THE SUFFERING AND THE TRIUMPH OF
BIRTH." 

WANDA HALE, N.Y. DAILY NEWS, DEC. 13, 1950, P. 82, COLS.  1-3:
"ROSSELLINI'S BEST PIECE OF DIRECTION, SINCE HIS GREATEST, 'OPEN
CITY.'  ...  ARTISTIC AND BEAUTIFULLY DONE BY BOTH THE STAR AND THE
DIRECTOR." 

ARCHER WINSTEN, N.Y. POST, DEC. 13, 1950, P. 80, COLS.  1-3:
"MAGNANI'S PERFORMANCE IS A MAJOR ONE AND PROFOUNDLY IMPRESSIVE.  THIS
REVIEWER'S PERSONAL OPINION MARKED DOWN THE FILM AS DISTURBINGLY
UNPLEASANT AND SLOW." 

SEYMOURE PECK, N.Y. DAILY COMPASS, DEC. 13, 1950, P. 13, COLS.  3-5:
"'THE MIRACLE' IS REALLY ALL MAGNANI.  ...  ONE OF THE MOST EXCITING
SOLO PERFORMANCES THE SCREEN HAS KNOWN." 

ALTON COOK, N.Y. WORLD-TELEGRAM, DEC. 13, 1950, P. 50, COLS.  1-2:
"'THE MIRACLE' IS CHARGED WITH THE SAME OVERWROUGHT HYSTERIA THAT RAN
THROUGH HIS 'STROMBOLI.'  ...  THE PICTURE HAS AN UNPLEASANT
PREOCCUPATION WITH FILTH AND SQUALOR  ...  EXCEEDINGLY TRYING
EXPERIENCE." 

TIME, JAN. 8, 1951, P. 72, COLS.  2-3:  "'THE MIRACLE' IS SECOND-RATE
ROSSELLINI DESPITE A VIRTUOSO PERFORMANCE BY ANNA MAGNANI." 

NEWSWEEK, DEC. 18, 1950, PP. 93-94, COL. 3:  "STRONG MEDICINE FOR
MOST AMERICAN AUDIENCES.  HOWEVER, IT SHOWS WHAT AN ARTIST OF
ROSSELLINIS CHARACTER CAN DO IN THE STILL SCARCELY EXPLORED MEDIUM OF
THE FILM SHORT STORY." 

HOLLIS ALPERT, SAT.  REV.  OF LIT., JAN. 27, 1951, PP. 28-29:
"PICTORIALLY THE PICTURE IS A GEM, WITH ITS SENSITIVE EVOCATION OF A
SMALL ITALIAN TOWN AND THE SURROUNDING COUNTRYSIDE NEAR SALERNO  ...  .
ANNA MAGNANI AGAIN DEMONSTRATES HER MAGNIFICANT QUALITIES OF ACTING. 
THE ROLE IS DIFFICULT  ...  . 

"BUT MY QUARREL WOULD BE WITH MR. ROSSELLINI, WHOSE METHOD OF
IMPROVISATION FROM SCENE TO SCENE  ...  CAN ALSO RESULT IN EXTRANEOUS
DETAIL THAT ADDS LITTLE, OR EVEN HARMS, THE OVER-ALL EFFECT." 

FN15  N.Y. TIMES, DEC. 28, 1950, P. 22, COL. 1. 

FN16  ID., DEC. 24, 1950, P. 1, COLS.  2-3. 

FN17  JOSEPH BURSTYN, INC. V. MCCAFFREY, 198 MISC. 884, 101 N.Y.S.2D
892. 

FN18  N.Y. TIMES, JAN. 8, 1951, P. 1, COL. 2.  THE CARDINAL TERMED
"THE MIRACLE" "A VILE AND HARMFUL PICTURE," "A DESPICABLE AFFRONT TO
EVERY CHRISTIAN" ("WE BELIEVE IN MIRACLES.  THIS PICTURE RIDICULES THAT
BELIEF"), AND FINALLY "A VICIOUS INSULT TO ITALIAN WOMANHOOD."  AS A
CONSEQUENCE, HE DECLARED:  "WE, AS THE GUARDIANS OF THE MORAL LAW, MUST
SUMMON YOU AND ALL PEOPLE WITH A SENSE OF DECENCY TO REFRAIN FROM
SEEING IT AND SUPPORTING THE VENAL PURVEYORS OF SUCH PICTURES  ...  ." 
ID., AT P. 14, COLS.  2-3. 

FOR COMPLETENESS' SAKE, LATER INCIDENTS SHOULD BE NOTED.  PICKETERS
FROM THE CATHOLIC WAR VETERANS, THE HOLY NAME SOCIETY, AND OTHER
CATHOLIC ORGANIZATIONS - ABOUT 1,000 PERSONS IN ALL DURING ONE SUNDAY -
PARADED BEFORE THE PARIS THEATRE.  ID., DEC. 29, 1950, P. 36, COL. 3;
JAN. 8, 1951, P. 1, COL. 2; JAN. 9, 1951, P. 34, COL. 7; JAN. 10, 1951,
P. 22, COL. 6; JAN. 15, 1951, P. 23, COL. 3.  A SMALLER NUMBER OF
COUNTERPICKETS APPEARED ON SEVERAL DAYS.  ID., JAN. 10, 1951, P. 22,
COL. 6; JAN. 20, 1951, P. 10, COLS.  4-5.  SEE ALSO ID., JAN. 23, 1951,
P. 21, COL. 8; JAN. 25, 1951, P. 27, COL. 7. 

THE PARIS THEATRE ON TWO DIFFERENT EVENINGS WAS EMPTIED ON THREAT OF
BOMBING.  ID., JAN. 21, 1951, P. 1, COLS.  2-3; JAN. 28, 1951, P. 1,
COLS.  2-3.  COINCIDENTLY WITH THE PROCEEDINGS BEFORE THE NEW YORK
BOARD OF REGENTS WHICH STARTED THIS CASE ON THE WAY TO THIS COURT, THE
PARIS THEATRE ALSO WAS HAVING DIFFICULTIES WITH THE NEW YORK CITY FIRE
DEPARTMENT.  THE CURIOUS MAY FOLLOW THE DEVELOPMENT OF THOSE INCIDENTS,
NOT RELEVANT HERE, IN THE N.Y. TIMES, JAN. 21, 1951, P. 53, COLS.  4-5;
JAN. 27, 1951, P. 11, COL. 3; FEB. 6, 1951, P. 29, COL. 8; FEB. 10,
1951, P. 15, COL. 8; FEB. 15, 1951, P. 33, COL. 2. 

FN19  EXCERPTS FROM LETTERS AND STATEMENTS BY A GREAT MANY CLERGYMEN
ARE REPRODUCED IN THE RECORD BEFORE THIS COURT, PAGES 95-140.  THE
REPRESENTATIVE QUOTATIONS IN THE TEXT ARE FROM LETTERS WRITTEN BY THE
REV. H.C. DEWINDT, MINISTER OF THE WEST PARK PRESBYTERIAN CHURCH, NEW
YORK CITY, R. 97, AND THE REV. W.J. BEENERS OF PRINCETON, NEW JERSEY,
R. 98, RESPECTIVELY. 

FN20  CATHOLIC OPINION GENERALLY, AS EXPRESSED IN THE PRESS,
SUPPORTED THE VIEW OF THE LEGION OF DECENCY AND OF CARDINAL SPELLMAN. 
SEE, FOR EXAMPLE, THE (NEW YORK) CATHOLIC NEWS, DEC. 30, 1950, P. 10;
JAN. 6, 1951, P. 10; JAN. 20, 1951, P. 10; FEB. 3, 1951, P. 10; FEB 10,
1951, P. 12; AND MAY 19, 1951, P. 12; COMMONWEAL, JAN. 12, 1951, P.
351, COL. 1; THE (BROOKLYN) TABLET, JAN. 20, 1951, P. 8, COL. 4; ID.,
JAN. 27, 1951, P. 10, COL. 3; ID., FEB. 3, 1951, P. 8, COLS.  3-4;
MARTIN QUIGLEY, JR., "'THE MIRACLE' - AN OUTRAGE"; THE (SAN FRANCISCO)
MONITOR, JAN. 12, 1951, P. 7, COLS.  3-4 (REPRINTED FROM MOTION PICTURE
HERALD, JAN. 6, 1951); THE (BOSTON) PILOT, JAN. 6, 1951, P. 4.  THERE
DOUBTLESS WERE COMMENTS ON "THE MIRACLE" IN OTHER DIOCESAN PAPERS WHICH
CIRCULATE IN VARIOUS PARTS OF THE COUNTRY, BUT WHICH ARE NOT ON FILE IN
THE LIBRARY OF CONGRESS OR THE LIBRARY OF THE CATHOLIC UNIVERSITY OF
AMERICA. 

FN21  SPAETH, "FOGGED SCREEN," MAGAZINE OF ART, FEB., 1951, P. 44;
N.Y. HERALD TRIBUNE, JAN. 30, 1951, P. 18, COL. 4. 

FN22  CLANCY, "THE CATHOLIC AS PHILISTINE," THE COMMONWEAL, MAR. 16,
1951, PP. 567-569. 

FN23  THE COMMONWEAL, MAR. 2, 1951, PP. 507-508.  MUCH THE SAME VIEW
WAS TAKEN BY FRANK GETLEIN WRITING IN THE CATHOLIC MESSENGER, MAR. 22,
1951, P. 4, COLS.  1-8, IN AN ARTICLE BEARING THE HEADLINE:  "FILM
CRITIC GIVES SOME ASPECTS OF 'THE MIRACLE' STORY:  RAISES QUESTIONS
CONCERNING TACTICS OF ORGANIZED CATHOLIC RESISTANCE GROUPS IN NEW
YORK."  SEE ALSO, "MIRACLES DO HAPPEN," THE NEW LEADER, FEB. 5, 1951,
P. 30, COL. 2. 

FN24  N.Y. TIMES, FEB. 1, 1951, P. 24, COL. 7. 

FN25  ID., JAN. 13, 1951, P. 10, COL. 6; TRANSLATION BY CHWOROWSKY,
"THE CARDINAL:  CRITIC AND CENSOR," THE CHURCHMAN, FEB. 1, 1951, P. 7,
COL. 2. 

FN26  THAT SUCH OFFENSIVE EXPLOITATION OF MODERN MEANS OF PUBLICITY
IS NOT A FANCIFUL HYPOTHESIS, SEE N.Y. TIMES, APRIL 14, 1952, P. 1,
COL. 4. 

FN27  IN THE MATTER OF "THE PURITAN," 60 N.Y. ST. DEPT. 163 (1939);
IN THE MATTER OF "POLYGAMY," 60 N.Y. ST. DEPT. 217 (1939); IN THE
MATTER OF "MONJA Y CASADA - VIRGEN Y MARTIR" ("NUN AND MARRIED - VIRGIN
AND MARTYR"), 52 N.Y. ST. DEPT. 488 (1935). 

FN28  SINCE ALMOST WITHOUT EXCEPTION "SACRILEGIOUS" IS DEFINED IN
TERMS OF "SACRILEGE," OUR DISCUSSION WILL BE DIRECTED TO THE LATTER
TERM.  SEE BAILEY, UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (LONDON,
1730), "SACRILEGIOUS" - "OF, PERTAINING TO, OR GUILTY OF SACRILEGE";
FUNK & WAGNALLS' NEW STANDARD DICTIONARY (1937), "SACRILEGIOUS" -
"HAVING COMMITTED OR BEING READY TO COMMIT SACRILEGE.  OF THE NATURE OF
SACRILEGE; AS, SACRILEGIOUS DEEDS." 

FN29  FOR GENERAL DISCUSSIONS OF "SACRILEGE," SEE ENCYCLOPAEDIA OF
RELIGION AND ETHICS (HASTINS ED., 1921), "SACRILEGE" AND "TABU"; REV.
THOMAS SLATER, A MANUAL OF MORAL THEOLOGY (1908), 226-230; THE CATHOLIC
ENCYCLOPEDIA (1912), "SACRILEGE"; AND ENCYCLOPAEDIA BRITANNICA,
"SACRILEGE." 

FN30  ENCYCLOPAEDIA BRITANNICA (1951), "SACRILEGE." 

FN31  IBID. 

FN32  SEE ENCYCLOPAEDIA OF RELIGION AND ETHICS (HASTINGS ED., 1921),
"TABU." 

FN33  ENCYCLOPAEDIA BRITANNICA (1951), "SACRILEGE." 

FN34  ST. THOMAS AQUINAS, SUMMA THEOLOGICA, PART II-II, QUESTION 99. 
THE MODERN CODEX JURIS CANONICI DOES NOT GIVE ANY DEFINITION OF
"SACRILEGE," BUT MERELY SAYS IT "SHALL BE PUNISHED BY THE ORDINARY IN
PROPORTION TO THE GRAVITY OF THE FAULT, WITHOUT PREJUDICE TO THE
PENALTIES ESTABLISHED BY LAW  ...  ."  SEE BOUSCAREN AND ELLIS, CANON
LAW (1946), 857.  2 WOYWOD, A PRACTICAL COMMENTARY ON THE CODE OF CANON
LAW (1929), PAR. 2178, 477-478, THUS DEFINES SACRILEGE:  "SACRILEGE
CONSISTS IN THE UNWORTHY USE OR TREATMENT OF SACRED THINGS AND SACRED
PERSONS.  CERTAIN THINGS ARE OF THEIR NATURE SACRED (E.G., THE
SACRAMENTS); OTHERS BECOME SO BY BLESSING OR CONSECRATION LEGITIMATELY
BESTOWED ON THINGS OR PLACES BY AUTHORITY OF THE CHURCH.  PERSONS ARE
RENDERED SACRED BY ORDINATION OR CONSECRATION OR BY OTHER FORMS OF
DEDICATION TO THE DIVINE SERVICE BY AUTHORITY OF THE CHURCH (E.G., BY
FIRST TONSURE, BY RELIGIOUS PROFESSION)." 

FN35  AFTER HIS METHOD OF RAISING OBJECTIONS AND THEN REFUTING THEM,
ST. THOMAS AQUINAS DEFENDS INCLUDING WITHIN THE PROSCRIPTION OF
"SACRILEGE," ANYONE "WHO DISAGREES) ABOUT THE SOVEREIGN'S DECISION, AND
DOUBTS) WHETHER THE PERSON CHOSEN BY THE SOVEREIGN BE WORTHY OF HONOR"
AND "ANY MAN WHO SHALL ALLOW THE JEWS TO HOLD PUBLIC OFFICES."  SUMMA
THEOLOGICA, PART II-II, QUESTION 99, ART. 1. 

FN36  REV. THOMAS SLATER, S.J., A MANUAL OF MORAL THEOLOGY (1908), C.
VI, CLASSIFIES AND ILLUSTRATES THE MODERN THEOLOGICAL VIEW OF
"SACRILEGE": 

SACRILEGE AGAINST SACRED PERSONS:  TO USE PHYSICAL VIOLENCE AGAINST A
MEMBER OF THE CLERGY; TO VIOLATE "THE PRIVILEGE OF IMMUNITY OF THE
CLERGY FROM CIVIL JURISDICTION, AS FAR AS THIS IS STILL IN FORCE"; TO
VIOLATE A VOW OF CHASTITY. 

SACRILEGE AGAINST SACRED PLACES:  TO VIOLATE THE IMMUNITY OF CHURCHES
AND OTHER SACRED PLACES "AS FAR AS THIS IS STILL IN FORCE"; TO COMMIT A
CRIME SUCH AS HOMICIDE, SUICIDE, BLOODY ATTACK THERE; TO BREAK BY
SEXUAL ACT A VOW OF CHASTITY THERE; TO BURY AN INFIDEL, HERETIC, OR
EXCOMMUNICATE IN CHURCHES OR CEMETERIES CANONICALLY ESTABLISHED; OR TO
PUT THE SACRED PLACE TO A PROFANE USE, AS A SECULAR COURTROOM, PUBLIC
MARKET, BANQUET HALL, STABLE, ETC. 

SACRILEGE AGAINST SACRED THINGS:  TO TREAT WITH IRREVERENCE,
CONTEMPT, OR OBSCENITY THE SACRAMENTS (PARTICULARLY THE EUCHARIST),
HOLY SCRIPTURES, RELICS, SACRED IMAGES, ETC., TO STEAL SACRED THINGS,
OR PROFANE THINGS FROM SACRED PLACES; TO COMMIT SIMONY; OR TO STEAL,
CONFISCATE, OR DAMAGE WILFULLY ECCLESIASTICAL PROPERTY.  SEE ALSO, THE
CATHOLIC ENCYCLOPEDIA, "SACRILEGE." 

FN37  SIR HENRY SPELMAN, THE HISTORY AND FATE OF SACRILEGE (2D ED.,
1853), 121-122.  TWO PRIESTS OF THE ANGLICAN CHURCH PREPARD A LONG
PREFATORY ESSAY TO BRING SPELMAN'S DATA UP TO THE DATE OF PUBLICATION
OF THE 1853 EDITION.  THEIR ESSAY SHOWS THEIR UNDERSTANDING ALSO OF
"SACRILEGE" IN THE LIMITED SENSE.  ID., AT 1-120. 

FN38  2 RUSSELL, CRIME (10TH ED., 1950), 975-976; STEPHEN, A DIGEST
OF THE CRIMINAL LAW (9TH ED., 1950), 348-349.  SEE 23 HEN.  VIII, C. 1,
SEC. III; EDW.  VI, C. 12, SEC. X; 1 MARY, C. 3, SECS. IV-VI. 

FN39  7 & 8 GEO. IV, C. 29, SEC. X, WHICH THE MARGINAL NOTE
SUMMARIZED AS "SACRILEGE, WHEN CAPITAL," READ:  "IF ANY PERSON SHALL
BREAK AND ENTER ANY CHURCH OR CHAPEL, AND STEAL THEREIN ANY CHATTEL
...  (HE) SHALL SUFFER DEATH AS A FELON."  THIS STATUTE WAS INTERPRETED
TO APPLY ONLY TO BUILDINGS OF THE ESTABLISHED CHURCH.  REX V. NIXON, 7
CAR.  & P. 442 (1836). 

FN40  7 & 8 GEO. IV, C. 29, SEC. X, WAS REPEALED BY 24 & 25 VICT., C.
95.  THE LARCENY ACT AND THE MALICIOUS INJURIES TO PROPERTY ACT, BOTH
OF 1861, TREATED ESTABLISHED CHURCH PROPERTY SUBSTANTIALLY THE SAME AS
ALL OTHER PROPERTY.  24 & 25 VICT., C. 96, SEC. 50; C. 97, SECS. 1, 11,
39, SUPERSEDED BY LARCENY ACT, 1916, 6 & 7 GEO. V, C. 50, SEC. 24. 
FN41  BLACKSTONE, BK. IV, C. 4, 41-64. 

FN42  COMPARE THE DEFINITIONS OF "SACRILEGE" AND "BLASPHEMY" IN THE
DICTIONARIES, STARTING WITH COCKERAM'S 1651 EDITION, WHICH ARE
COLLECTED IN THE APPENDIX, POST, P. 533. 

FN43  BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (LONDON,
1742), "SACRILEGE." 

FN44  BARCLAY, A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY (LONDON,
1782), "SACRILEGE." 

FN45  ID., "BLASPHEMY." 

FN46  THOMAS BLOUNT, GLOSSOGRAPHIA (3D ED., LONDON, 1670). 

FN47  WEBSTER'S COMPENDIOUS DICTIONARY OF THE ENGLISH LANGUAGE
(1806):  "SACRILEGE" - "THE ROBBERY OF A CHURCH OR CHAPEL." 
"SACRILEGIOUS" - "VIOLATING A THING MADE SACRED." 

WEBSTER'S AMERICAN DICTIONARY (1828):  "SACRILEGE" - "THE CRIME OF
VIOLATING OR PROFANING SACRED THINGS; OR THE ALIENATING TO LAYMEN OR TO
COMMON PURPOSES WHAT HAS BEEN APPROPRIATED OR CONSECRATED TO RELIGIOUS
PERSONS OR USES."  "SACRILEGIOUS" - "VIOLATING SACRED THINGS; POLLUTED
WITH THE CRIME OF SACRILEGE." 

WEBSTER'S INTERNATIONAL DICTIONARY (G.&C. MERRIAM & CO., 1890):
"SACRILEGE" - "THE SIN OR CRIME OF VIOLATING OR PROFANING SACRED
THINGS; THE ALIENATING TO LAYMEN, OR TO COMMON PURPOSES, WHAT HAS BEEN
APPROPRIATED OR CONSECRATED TO RELIGIOUS PERSONS OR USES." 
"SACRILEGIOUS" - "VIOLATING SACRED THINGS; POLLUTED WITH SACRILEGE;
INVOLVING SACRILEGE; PROFANE; IMPIOUS." 

WEBSTER'S NEW INTERNATIONAL DICTIONARY (G.&C. MERRIAM CO., 1ST ED.,
1909): "SACRILEGE" - "THE SIN OR CRIME OF VIOLATING OR PROFANING SACRED
THINGS; SPECIF., THE ALIENATING TO LAYMEN, OR TO COMMON PURPOSES, WHAT
HAS BEEN APPROPRIATED OR CONSECRATED TO RELIGIOUS PERSONS OR USES." 
"SACRILEGIOUS" - "VIOLATING SACRED THINGS; POLLUTED WITH, OR INVOLVING,
SACRILEGE; IMPIOUS."  REPEATED IN THE 1913, 1922, 1924, 1928, 1933
PRINTINGS, AMONG OTHERS. 

WEBSTER'S NEW INTERNATIONAL DICTIONARY (G.&C. MERRIAM CO., 2D ED.,
1934): "SACRILEGE" - "THE CRIME OF STEALING, MISUSING, VIOLATING, OR
DESECRATING THAT WHICH IS SACRED, OR HOLY, OR DEDICATED TO SACRED
USES.  SPECIF.:  A R.C. CH.  THE SIN OF VIOLATING THE CONDITIONS FOR A
WORTHY RECEPTION OF A SACRAMENT.  B ROBBERY FROM A CHURCH; ALSO, THAT
WHICH IS STOLEN.  C ALIENATION TO LAYMEN, OR TO COMMON PURPOSES, OF
WHAT HAS BEEN APPROPRIATED OR CONSECRATED TO RELIGIOUS PERSONS OR
USES."  "SACRILEGIOUS" - "COMMITTING SACRILEGE; CHARACTERIZED BY OR
INVOLVING SACRILEGE; POLLUTED WITH SACRILEGE; AS, SACRILEGIOUS ROBBERS,
DEPREDATIONS, OR ACTS."  REPEATED IN THE 1939, 1942, 1944, 1949
PRINTINGS, AMONG OTHERS. 

FN48  FUNK & WAGNALLS' STANDARD DICTIONARY OF THE ENGLISH LANGUAGE,
WHICH WAS FIRST COPYRIGHTED IN 1890, DEFINED SACRILEGE AS FOLLOWS IN
THE 1895 PRINTING"  "1.  THE ACT OF VIOLATING OR PROFANING ANYTHING
SACRED.  2.  ENG. LAW (1) THE LARCENY OF CONSECRATED THINGS FROM A
CHURCH; THE BREAKING INTO A CHURCH WITH INTENT TO COMMIT A FELONY, OR
BREAKING OUT AFTER A FELONY.  (2)  FORMERLY, THE SELLING TO A LAYMAN OF
PROPERTY GIVEN TO PIOUS USES."  THIS DEFINITION REMAINED UNCHANGED
THROUGH MANY PRINTINGS OF THAT DICTIONARY.  THE CURRENT PRINTING OF
FUNK & WAGNALLS' NEW STANDARD DICTIONARY OF THE ENGLISH LANGUAGE, FIRST
COPYRIGHTED IN 1913, CARRIES EXACTLY THE SAME DEFINITION OF "SACRILEGE"
EXCEPT THAT THE FIRST DEFINITION HAS BEEN EXPANDED TO READ:  "THE ACT
OF VIOLATING OR PROFANING ANYTHING SACRED, INCLUDING SACRAMENTAL
VOWS." 

FUNK & WAGNALLS' STANDARD DICTIONARY (1895) DEFINED "TO PROFANE" AS
"1.  TO TREAT WITH IRREVERENCE OR ABUSE; MAKE COMMON OR UNHOLY;
DESECRATE; POLLUTE.  2.  HENCE, TO PUT TO A WRONG OR DEGRADING USE;
DEBASE."  THE NEW STANDARD DICTIONARY ADDS A THIRD MEANING: "3.  TO
VULGARIZE; GIVE OVER TO THE CROWD." 

FN49  ENCYCLOPAEDIA BRITANNICA, 2D ED., 1782:  "SACRILEGE" - "THE
CRIME OF PROFANING SACRED THINGS, OR THOSE DEVOTED TO THE SERVICE OF
GOD." 

3D ED., 1797:  "SACRILEGE" - "THE CRIME OF PROFANING SACRED THINGS,
OR THINGS DEVOTED TO GOD; OR OF ALIENATING TO LAYMEN, FOR COMMON
PURPOSES, WHAT WAS GIVEN TO RELIGIOUS PERSONS AND PIOUS USES." 

8TH ED., 1859:  "SACRILEGE" - SAME AS 3D ED., 1797. 

9TH ED., 1886:  "SACRILEGE" - A RELATIVELY SHORT ARTICLE THE AUTHOR
OF WHICH QUITE APPARENTLY HAD A RESTRICTED DEFINITION FOR "SACRILEGE":
"ROBBERY OF CHURCHES," "BREAKING OR DEFACING OF AN ALTAR, CRUCIFIX, OR
CROSS," ETC. 

FN50  ENCYCLOPAEDIA BRITANNICA (11TH ED., 1911), "SACRILEGE." 

FN51  SCHROEDER, CONSTITUTIONAL FREE SPEECH (1919), 178-373, MAKES A
LENGTHY REVIEW OF "PROSECUTIONS FOR CRIMES AGAINST RELIGION."  THE
EXAMPLES IN THE TEXT ARE FROM SCHROEDER.  SEE ALSO ENCYCLOPAEDIA OF THE
SOCIAL SCIENCES, "BLASPHEMY"; ENCYCLOPAEDIA OF RELIGION AND ETHICS,
"BLASPHEMY"; NOKES, A HISTORY OF THE CRIME OF BLASPHEMY (1928). 

FN52  1 YORKE, THE LIFE OF LORD CHANCELLOR HARDWICKE (1913), 80,
WRITES THUS OF THE PROSECUTION OF THOMAS WOOLSTON FOR BLASPHEMY:  "THE
OFFENCE, IN THE FIRST PLACE, CONSISTED IN THE PUBLICATION IN 1725 OF A
TRACT ENTITLED A MODERATOR BETWEEN AN INFIDEL AND AN APOSTATE, IN WHICH
THE AUTHOR QUESTIONED THE HISTORICAL ACCURACY OF THE RESURRECTION AND
THE VIRGIN BIRTH.  SUCH SPECULATIONS, HOWEVER MUCH THEY MIGHT OFFEND
THE RELIGIOUS FEELING OF THE NATION, WOULD NOT NOW AROUSE APPREHENSIONS
IN THE CIVIL GOVERNMENT, OR INCUR LEGAL PENALTIES; BUT AT THE TIME OF
WHICH WE ARE WRITING, WHEN THE AUTHORITY OF GOVERNMENT WAS FAR LESS
STABLE AND SECURE AND RESTED ON FAR NARROWER FOUNDATIONS THAN AT
PRESENT, SUCH AUDACIOUS OPINIONS WERE CONSIDERED, NOT WITHOUT SOME
REASON, AS A MENACE, NOT ONLY TO RELIGION BUT TO THE STATE." 

FN53  SEE, E.G., REX V. BOULTER, 72 J.P. 188 (1908); BOWMAN V.
SECULAR SOCIETY, LTD., (1917) A.C. 406. 

FN54  REG. V. RAMSAY, 15 COX'S C.C. 231, 238 (1883)(LORD COLERIDGE'S
CHARGE TO THE JURY); BOWMAN V. SECULAR SOCIETY, LTD., (1917) A.C. 406. 

FN55  THE LATEST AVAILABLE STATISTICS OF THE BUREAU OF THE CENSUS
GIVE RETURNS FROM 256 DENOMINATIONS; 57 OTHER DENOMINATIONS, WHICH DID
NOT REPORT, ARE LISTED.  BUREAU OF THE CENSUS, RELIGIOUS BODIES: 1936,
VOL. I, III, 7. 

FN56  IT IS NOT MERE FANTASY TO SUGGEST THAT THE EFFECT OF A BAN OF
THE "SACRILEGIOUS" MAY BE TO BAN ALL MOTION PICTURES DEALING WITH ANY
SUBJECT THAT MIGHT BE DEEMED RELIGIOUS BY ANY SECT.  THE INDUSTRY'S
SELF-CENSORSHIP HAS ALREADY HAD A DISTORTING INFLUENCE ON THE PORTRAYAL
OF HISTORICAL FIGURES.  "PRESSURE FORCED DELETION OF THE CLERICAL
BACKGROUND OF CARDINAL RICHELIEU FROM THE THREE MUSKETEERS.  THE
(MOTION PICTURE PRODUCTION) CODE PROVISION APPEALED TO WAS THE SECTION
PROVIDING THAT MINISTERS SHOULD NOT BE PORTRAYED AS VILLAINS."  NOTE,
"MOTION PICTURES AND THE FIRST AMENDMENT," 60 YALE L.J. 696, 716, N.
42. 

THE PRESS RECENTLY REPORTED THAT PLANS ARE BEING MADE TO FILM A "LIFE
OF MARTIN LUTHER."  N.Y. TIMES, APRIL 27, 1952, SEC. 2, P. 5, COL. 7. 
COULD LUTHER BE SYMPATHETICALLY PORTRAYED AND NOT APPEAR "SACRILEGIOUS"
TO SOME; OR UNSYMPATHETICALLY, AND NOT TO OTHERS? 

         APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER.* 

*SEE MATHEWS, A SURVEY OF ENGLISH DICTIONARIES (1933). 

COCKERAM, ENGLISH DICTIONARIE (10TH ED., LONDON, 1651). 

BLASPHEMY:  NO ENTRY. 

SACRILEGE:  "THE ROBBING OF A CHURCH, THE STEALING OF HOLY THINGS,
ABUSING OF SACRAMENTS OR HOLY MYSTERIES." 

SACRILEGIOUS:  "ABOMINABLE, VERY WICKED." 

BLOUNT, GLOSSOGRAPHIA (3D ED., LONDON, 1670). 

BLASPHEMY:  NO ENTRY. 

SACRILEGE:  "THE ROBBING A CHURCH, OR OTHER HOLY CONSECRATED PLACE,
THE STEALING HOLY THINGS, OR ABUSING SACRAMENTS OR HOLY MYSTERIES." 

SACRILEGIOUS:  "THAT ROBS THE CHURCH; WICKED, EXTREMELY BAD." 

BLOUNT, A LAW-DICTIONARY (LONDON, 1670). 

BLASPHEMY:  NO ENTRY. 

SACRILEGE:  NO ENTRY. 

PHILLIPS, THE NEW WORLD OF WORDS (3D ED., LONDON, 1671). 

BLASPHEMY:  "AN UTTERING OF REPROACHFUL WORDS, TENDING EITHER TO THE
DISHONOUR OF GOD, OR TO THE HURT AND DISGRACE OF ANY MANS NAME AND
CREDIT." 

SACRILEGOUS:  "COMMITTING SACRILEDGE, I.E. A ROBBING OF CHURCHES, OR
VIOLATING OF HOLY THINGS." 

COWEL, THE INTERPRETER OF WORDS AND TERMS (MANLEY ED., LONDON,
1701). 

BLASPHEMY:  NO ENTRY. 

SACRILEGE:  "AN ALIENATION TO LAY-MEN, AND TO PROFANE OR COMMON
PURPOSES, OF WHAT WAS GIVEN TO RELIGIOUS PERSONS, AND TO PIOUS USES,
ETC." 

RASTELL, LAW TERMS (LONDON, 1708). 

BLASPHEMY:  NO ENTRY. 

SACRILEGE:  "IS, WHEN ONE STEALS ANY VESSELS, ORNAMENTS, OR GOODS OF
HOLY CHURCH, WHICH IS FELONY, 3 CRO.  153, 154." 

KERSEY, A GENERAL ENGLISH DICTIONARY (3D ED., LONDON, 1721). 

BLASPHEMY:  "AN UTTERING OF REPROACHFUL WORDS, THAT TEND TO THE
DISHONOUR OF GOD, &C." 

SACRILEGE:  "THE STEALING OF SACRED THINGS, CHURCH ROBBING." 

COCKER, ENGLISH DICTIONARY (LONDON, 1724). 

BLASPHEMY:  NO ENTRY. 

SACRILEGE:  "ROBBING THE CHURCH, OR WHAT IS DEDICATED THERETO." 

BAILEY, UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (LONDON, 1730). 

BLASPHEMY:  "AN UTTERING OF REPROACHFUL WORDS TENDING TO THE
DISHONOUR OF GOD, &C.  VILE, BASE LANGUAGE." 

SACRILEGE: "THE STEALING OF SACRED THINGS, CHURCH-ROBBING; THE CRIME
OF PROFANING SACRED THINGS, OR ALIENATING TO LAYMEN, OR COMMON USES,
WHAT WAS GIVEN TO PIOUS USES AND RELIGIOUS PERSONS." 

COLES, AN ENGLISH DICTIONARY (LONDON, 1732). 

BLASPHEMY:  "REPROACH." 

SACRILEGE:  "THE ROBBING OF GOD, THE CHURCH, &C." 

BULLOKAR, THE ENGLISH EXPOSITOR (14TH ED., LONDON, 1731). 

BLASPHEMY:  NO ENTRY. 

SACRILEGE:  "THE ROBBING OF A CHURCH; THE STEALING OF HOLY THINGS, OR
ABUSING OF SACRAMENTS OR HOLY MYSTERIES." 

DEFOE, A COMPLEAT ENGLISH DICTIONARY (WESTMINSTER, 1735). 

BLASPHEMY:  "VILE OR OPPROBRIOUS LANGUAGE, TENDING TO THE DISHONOUR
OF GOD." 

SACRILEGE:  "THE STEALING OF SACRED THINGS, CHURCH ROBBING." 

BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (LONDON, 1742). 

BLASPHEMY:  "CURSING AND SWEARING, VILE REPROACHFUL LANGUAGE, TENDING
TO THE DISHONOUR OF GOD." 

SACRILEGE:  "THE STEALING OF SACRED THINGS, CHURCH ROBBING; AN
ALIENATION TO LAYMEN, AND TO PROFANE AND COMMON PURPOSES, OF WHAT WAS
GIVEN TO RELIGIOUS PERSONS, AND TO PIOUS USES." 

MARTIN, A NEW UNIVERSAL ENGLISH DICTIONARY (LONDON, 1754). 

BLASPHEMY:  "CURSING, VILE LANGUAGE TENDING TO THE DISHONOUR OF GOD
OR RELIGION." 

SACRILEGE:  "THE STEALING THINGS OUT OF A HOLY PLACE, OR THE
PROFANING THINGS DEVOTED TO GOD." 

JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (2D ED., LONDON,
1755). 

BLASPHEMY:  "STRICTLY AND PROPERLY, IS AN OFFERING OF SOME INDIGNITY,
OR INJURY, UNTO GOD HIMSELF, EITHER BY WORDS OR WRITING." 

SACRILEGE:  "THE CRIME OF APPROPRIATING TO HIMSELF WHAT IS DEVOTED TO
RELIGION; THE CRIME OF ROBBING HEAVEN; THE CRIME OF VIOLATING OR
PROFANING THINGS SACRED." 

RIDER, A NEW UNIVERSAL ENGLISH DICTIONARY (LONDON, 1759). 

BLASPHEMY:  "AN OFFERING SOME INDIGNITY TO GOD, ANY PERSON OF THE
TRINITY, ANY MESSENGERS FROM GOD; HIS HOLY WRIT, OR THE DOCTRINES OF
REVELATION, EITHER BY SPEAKING OR WRITING ANY THING ILL OF THEM, OR
ASCRIBING ANY THING ILL TO THEM INCONSISTENT WITH THEIR NATURES AND THE
REVERENCE WE OWE THEM." 

SACRILEGE:  "THE CRIME OF TAKING ANY THING DEDICATED TO DIVINE
WORSHIP.  THE CRIME OF PROFANING ANY THING SACRED." 

PROFANE:  "TO APPLY ANY THING SACRED TO COMMON USE.  TO BE IRREVERENT
TO SACRED PERSONS OR THINGS.   TO PUT TO A WRONG USE." 

GORDON AND MARCHANT, A NEW COMPLETE ENGLISH DICTIONARY (LONDON,
1760). 

BLASPHEMY:  "IS AN OFFERING SOME INDIGNITY TO GOD HIMSELF." 

SACRILEGE:  "IS THE CRIME OF APPROPRIATING TO HIMSELF WHAT IS DEVOTED
TO RELIGION; THE CRIME OF ROBBING HEAVEN." 

BUCHANAN, A NEW ENGLISH DICTIONARY (LONDON, 1769). 

BLASPHEMY:  "LANGUAGE TENDING TO THE DISHONOUR OF GOD." 

SACRILEGE:  "THE STEALING THINGS OUT OF A HOLY PLACE." 

CUNNINGHAM, A NEW AND COMPLETE LAW-DICTIONARY (LONDON, 1771). 

BLASPHEMY:  A LONG DEFINITION READING IN PART:  "IS AN INJURY OFFERED
TO GOD, BY DENYING THAT WHICH IS DUE AND BELONGING TO HIM, OR
ATTRIBUTING TO HIM WHAT IS NOT AGREEABLE TO HIS NATURE." 

SACRILEGE:  "IS CHURCH ROBBERY, OR A TAKING OF THINGS OUT OF A HOLY
PLACE; AS WHERE A PERSON STEALS ANY VESSELS, ORNAMENTS, OR GOODS OF THE
CHURCH.  AND IT IS SAID TO BE A ROBBERY OF GOD, AT LEAST OF WHAT IS
DEDICATED TO HIS SERVICE.  2 CRO.  153, 154. 

"  ...  AN ALIENATION TO LAY-MEN, AND TO PROFANE OR COMMON PURPOSES,
OF WHAT WAS GIVEN TO RELIGIOUS PERSONS, AND TO PIOUS USES." 

KENRICK, A NEW DICTIONARY OF THE ENGLISH LANGUAGE (LONDON, 1773). 

BLASPHEMY:  "TREATING THE NAME AND ATTRIBUTES OF THE SUPREME BEING
WITH INSULT AND INDIGNITY." 

SACRILEGE:  "THE CRIME OF APPROPRIATING TO HIMSELF WHAT IS DEVOTED TO
RELIGION; THE CRIME OF ROBBING HEAVEN, SAYS JOHNSON; THE CRIME OF
VIOLATING OR PROFANING THINGS SACRED." 

PROFANE:  "TO VIOLATE; TO POLLUTE.  - TO PUT TO WRONG USE." 

ASH, THE NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (LONDON,
1775). 

BLASPHEMY:  "THE ACT OF SPEAKING OR WRITING REPROACHFULLY OF THE
DIVINE BEING, THE ACT OF ATTRIBUTING TO THE CREATURE THAT WHICH BELONGS
TO THE CREATOR." 

SACRILEGE:  "THE ACT OF APPROPRIATING TO ONE'S SELF WHAT IS DEVOTED
TO RELIGION, THE CRIME OF VIOLATING SACRED THINGS." 

DYCHE, A NEW GENERAL ENGLISH DICTIONARY (LONDON, 1777). 

BLASPHEMY:  "THE REPROACHING OR DISHONOURING GOD, RELIGION, AND HOLY
THINGS." 

SACRILEGE:  "THE STEALING OR TAKING AWAY THOSE THINGS THAT WERE
APPROPRIATED TO RELIGIOUS USES OR DESIGNS." 

SACRILEGIOUS:  "OF A PROFANE, THIEVISH NATURE, SORT, OR
DISPOSITION." 

BARCLAY, A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY (LONDON, 1782). 

BLASPHEMY:  "AN OFFERING SOME INDIGNITY TO GOD, ANY PERSON OF THE
TRINITY, ANY MESSENGERS FROM GOD, HIS HOLY WRIT, OR THE DOCTRINES OF
REVELATION."    SACRILEGE:  "THE CRIME OF TAKING ANY THING DEDICATED TO
DIVINE WORSHIP, OR PROFANING ANY THING SACRED." 

PROFANE:  "TO APPLY ANY THING SACRED TO COMMON USE.  TO BE IRREVERENT
TO SACRED PERSONS OR THINGS." 

LEMON, ENGLISH ETYMOLOGY (LONDON, 1783). 

BLASPHEME:  "TO SPEAK EVIL OF ANY ONE; TO INJURE HIS FAME, OR
REPUTATION." 

SACRILEGE:  NO ENTRY. 

ENTICK, NEW SPELLING DICTIONARY (LONDON, 1786).    BLASPHEMY:
"INDIGNITY OFFERED TO GOD." 

BLASPHEMER:  "ONE WHO ABUSES GOD." 

SACRILEGE:  "THE ROBBERY OF A CHURCH OR CHAPEL." 

SACRILEGIOUS:  "VIOLATING A THING MADE SACRED." 

BURN, A NEW LAW DICTIONARY (DUBLIN, 1792). 

BLASPHEMY:  "SEE PROPHANENESS." 

PROFANENESS:  A LONG DEFINITION, NOT REPRODUCED HERE. 

SACRILEGE: "ROBBING OF THE CHURCH, OR STEALING THINGS OUT OF A SACRED
PLACE." 

SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (6TH ED.,
PHILA., 1796). 

BLASPHEMY:  "OFFERING OF SOME INDIGNITY TO GOD." 

SACRILEGE:  "THE CRIME OF ROBBING A CHURCH." 

SCOTT, DICTIONARY OF THE ENGLISH LANGUAGE (EDINBURGH, 1797). 

BLASPHEMY:  "INDIGNITY OFFERED TO GOD." 

SACRILEGE:  "THE ROBBERY OF A CHURCH, &C." 

RICHARDSON, A NEW DICTIONARY OF THE ENGLISH LANGUAGE (LONDON, 1839). 

BLASPHEMY:  "TO ATTACK, ASSAIL, INSULT, (THE NAME, THE ATTRIBUTES,
THE ORDINANCES, THE REVELATIONS, THE WILL OR GOVERNMENT OF GOD.)" 

SACRILEGE:  "TO TAKE AWAY, TO STEAL ANY THING SACRED, OR CONSECRATED,
OR DEDICATED TO HOLY OR RELIGIOUS USES." 

BELL, A DICTIONARY AND DIGEST OF THE LAW OF SCOTLAND (EDINBURGH,
1861). 

BLASPHEMY:  "IS THE DENYING OR VILIFYING OF THE DEITY, BY SPEECH OF
WRITING." 

SACRILEGE:  "IS ANY VIOLATION OF THINGS DEDICATED TO THE OFFICES OF
RELIGION." 

STAUNTON, AN ECCLESIASTICAL DICTIONARY (N.Y., 1861). 

BLASPHEMY:  A LONG ENTRY. 

SACRILEGE:  "THE ACT OF VIOLATING OR SUBJECTING SACRED THINGS TO
PROFANATION; OR THE DESECRATION OF OBJECTS CONSECRATED TO GOD.  THUS,
THE ROBBING OF CHURCHES OR OF GRAVES, THE ABUSE OF SACRED VESSELS AND
ALTARS BY EMPLOYING THEM FOR UNHALLOWED PURPOSES, THE PLUNDERING AND
MISAPPROPRIATION OF ALMS AND DONATIONS, ARE ACTS OF SACRILEGE, WHICH IN
THE ANCIENT CHURCH WERE PUNISHED WITH GREAT SEVERITY." 

BOUVIER, A LAW DICTIONARY (11TH ED., PHILA., 1866). 

BLASPHEMY:  "TO ATTRIBUTE TO GOD THAT WHICH IS CONTRARY TO HIS
NATURE, AND DOES NOT BELONG TO HIM, AND TO DENY WHAT DOES; OR IT IS A
FALSE REFLECTION UTTERED WITH A MALICIOUS DESIGN OF REVILING GOD." 

SACRILEGE:  "THE ACT OF STEALING FROM THE TEMPLES OR CHURCHES
DEDICATED TO THE WORSHIP OF GOD, ARTICLES CONSECRATED TO DIVINE USES." 

SHIPLEY, A GLOSSARY OF ECCLESIASTICAL TERMS (LONDON, 1872). 

BLASPHEMY:  "DENYING THE EXISTENCE OR PROVIDENCE OF GOD; CONTUMELOUS
REPROACHES OF JESUS CHRIST; PROFANE SCOFFING AT THE HOLY SCRIPTURES, OR
EXPOSING ANY PART THEREOF TO CONTEMPT OR RIDICULE." 

SACRILEGE: "THE PROFANATION OR ROBBERY OF PERSONS OR THINGS WHICH
HAVE BEEN SOLEMNLY DEDICATED TO THE SERVICE OF GOD.  V. 24 & 25 VICT. 
C. 96, S. 50." 

BROWN, A LAW DICTIONARY (SPRAGUE ED., ALBANY, 1875). 

BLASPHEMY:  "TO REVILE AT OR TO DENY THE TRUTH OF CHRISTIANITY AS BY
LAW ESTABLISHED, IS A BLASPHEMY, AND AS SUCH IS PUNISHABLE BY THE
COMMON LAW  ...  ." 

SACRILEGE:  "A DESECRATION OF ANY THING THAT IS HOLY.  THE ALIENATION
OF LANDS WHICH WERE GIVEN TO RELIGIOUS PURPOSES TO LAYMEN, OR TO
PROFANE AND COMMON PURPOSES, WAS ALSO TERMED SACRILEGE." 
..END :
















STEMBRIDGE V. GEORGIA 343 U.S. 541 


NO. 474.  ARGUED APRIL 22, 1952 - DECIDED MAY 26, 1952 - CASE
DISMISSED. 


HAVING BEEN CONVICTED IN A GEORGIA STATE COURT OF INVOLUNTARY
MANSLAUGHTER AND HIS CONVICTION HAVING BEEN AFFIRMED BY THE COURT OF
APPEALS OF GEORGIA, PETITIONER MOVED IN THE TRIAL COURT FOR A NEW TRIAL
ON THE GROUND OF NEWLY DISCOVERED EVIDENCE.  DENIAL OF THIS MOTION BY
THE TRIAL COURT WAS AFFIRMED BY THE COURT OF APPEALS ON ADEQUATE STATE
GROUNDS.  PETITIONER THEN MOVED IN THE COURT OF APPEALS FOR A REHEARING
ON THAT DECISION AND, FOR THE FIRST TIME, ATTEMPTED TO CLAIM A
VIOLATION OF HIS FEDERAL CONSTITUTIONAL RIGHTS.  THIS MOTION WAS DENIED
BY THE COURT OF APPEALS WITHOUT OPINION AND THE SUPREME COURT OF
GEORGIA DENIED CERTIORARI WITHOUT OPINION.  THEREAFTER, PETITIONER
OBTAINED FROM THE COURT OF APPEALS AN AMENDMENT OF THE RECORD
PURPORTING TO SHOW THAT, ON THE MOTION FOR REHEARING, IT HAD CONSIDERED
THE FEDERAL CONSTITUTIONAL QUESTION AND DECIDED IT ADVERSELY TO
PETITIONER.  WITHOUT SEEKING A REVIEW OF THIS AMENDING ORDER IN THE
SUPREME COURT OF GEORGIA, PETITIONER APPLIED TO THIS COURT FOR
CERTIORARI, WHICH WAS GRANTED.  HELD:  IT NOW APPEARING THAT THE
DECISION OF THE SUPREME COURT OF GEORGIA MIGHT HAVE RESTED ON AN
ADEQUATE STATE GROUND, THE WRIT OF CERTIORARI WAS IMPROVIDENTLY
GRANTED, AND THE CASE IS DISMISSED.  PP. 542-548. 

1.  SINCE THE SUPREME COURT OF GEORGIA, WHICH WAS THE HIGHEST STATE
COURT IN WHICH A DECISION COULD BE HAD IN THIS CASE, WAS NOT ASKED TO
PASS UPON AND DID NOT PASS UPON THE AMENDING ORDER OF THE COURT OF
APPEALS, THIS COURT HAS NO OCCASION TO CONSIDER ITS EFFECT.  P. 546. 

2.  SINCE THE SUPREME COURT OF GEORGIA'S EARLIER DENIAL OF CERTIORARI
WITHOUT OPINION MIGHT HAVE RESTED ON AN ADEQUATE STATE GROUND, THIS
COURT WILL NOT TAKE JURISDICTION TO REVIEW THAT JUDGMENT.  PP. 546
547. 

3.  THE AMENDING ORDER OF THE GEORGIA COURT OF APPEALS DOES NOT
CHANGE THE POSTURE OF THIS CASE, SINCE IT DOES NOT REMOVE THE STRONG
POSSIBILITY, IN THE LIGHT OF GEORGIA LAW, THAT THE SUPREME COURT OF
GEORGIA MIGHT HAVE RESTED ITS ORDER DENYING CERTIORARI ON A NONFEDERAL
GROUND.  P. 547. 

STEMBRIDGE V. GEORGIA. 

CERTIORARI TO THE COURT OF APPEALS OF GEORGIA AND TO THE SUPREME
COURT OF GEORGIA. 

A WRIT OF CERTIORARI HAVING BEEN IMPROVIDENTLY GRANTED IN THIS CASE,
342 U.S. 940, THE CASE IS DISMISSED, P. 548. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF VOLUNTARY MANSLAUGHTER FOR THE FATAL
SHOOTING OF AN EIGHTEEN-YEAR-OLD WOMAN IN AN ALTERCATION GROWING OUT OF
A BUSINESS TRANSACTION.  A SECOND WOMAN WAS WOUNDED IN THE AFFRAY.  AT
HIS TRIAL, PETITIONER CLAIMED THAT HE KILLED THE DECEASED IN SELF
DEFENSE.  THE JURY OBVIOUSLY DID NOT BELIEVE HIM OR IT WOULD NOT HAVE
FOUND HIM GUILTY OF VOLUNTARY MANSLAUGHTER.  HE APPEALED TO THE COURT
OF APPEALS OF GEORGIA WHICH AFFIRMED THE CONVICTION ON JULY 12, 1950. 
STEMBRIDGE V. STATE, 82 GA. APP. 214, 60 S.E.2D 491.  CERTIORARI TO THE
SUPREME COURT OF GEORGIA WAS DENIED. 

PETITIONER THEREAFTER FILED IN THE TRIAL COURT WHAT HE CALLED AN
"EXTRAORDINARY MOTION FOR NEW TRIAL."  THIS MOTION ALLEGED THAT AFTER
THE APPELLATE PROCEEDINGS ABOVE MENTIONED, PETITIONER FOR THE FIRST
TIME, TO WIT, SEPTEMBER, 1950, DISCOVERED NEW EVIDENCE WHICH, HAD HE
KNOWN OF AND BEEN ABLE TO USE, WOULD HAVE RESULTED IN HIS ACQUITTAL. 
HE SUPPORTED THE MOTION WITH AFFIDAVITS OF TEN OF THE JURORS IN THE
CASE STATING THAT HAD THIS EVIDENCE BEEN BEFORE THEM, THEY "WOULD HAVE
NEVER AGREED TO ANY VERDICT EXCEPT ONE OF NOT GUILTY  ...  ." 

THE NEWLY DISCOVERED EVIDENCE CONSISTED OF A CONFLICT BETWEEN A
WRITTEN STATEMENT MADE BY MRS. MARY HARRISON, THE OTHER WOMAN WHO WAS
SHOT IN THE AFFRAY, AND HER TESTIMONY AT THE TRIAL.  PETITIONER COULD
NOT CONTEND THAT HE WAS UNAWARE OF THE EXISTENCE OF THIS STATEMENT
BECAUSE THE POLICE INVESTIGATOR WHO RECORDED IT WAS CROSS-EXAMINED AT
LENGTH ABOUT THE STATEMENT AND ITS CONTENTS BY PETITIONER'S COUNSEL AT
THE TRIAL.  PETITIONER CLAIMS ONLY THAT HE DID NOT KNOW OF THE CONFLICT
BETWEEN THE STATEMENT AND MRS. HARRISON'S TESTIMONY AT THE TRIAL UNTIL
AFTER THE TRIAL WAS OVER.  THE STATEMENT WAS MADE BY MRS. HARRISON IN
THE HOSPITAL, SHORTLY AFTER SHE WAS SHOT.  IT IS NOT SWORN TO.  AT
LEAST, THERE IS NO JURAT EXHIBITED AS A PART THEREOF.  THIS STATEMENT,
OFTEN REFERRED TO AS A DYING DECLARATION, AND THE COPY THEREOF REMAINED
AT ALL TIMES IN THE HANDS OF THE POLICE.  SINCE MRS. HARRISON DID NOT
DIE, THE STATE COULD NOT USE THE STATEMENT AS A DYING DECLARATION.  GA.
CODE, SEC. 38-307 (1933). 

THE MOTION ALLEGES THAT AT PETITIONER'S TRIAL, MRS. HARRISON
TESTIFIED THAT HE "DID GO INTO THE THIRD ROOM OF THE HOUSE AND THAT HE
DID SHOOT EMMA JOHNEKIN AFTER HE HAD ALREADY WOUNDED HER IN THE FRONT
OF THE HOUSE, AND AFTER SHE HAD SEATED HERSELF ON A TRUNK IN THIS REAR
ROOM."  THE HOUSE WHERE THE SHOOTING OCCURRED CONSISTED OF THREE ROOMS,
IN LINE FROM FRONT TO REAR, AND A KITCHEN.  THE STATEMENT MADE BY MRS.
HARRISON WHILE IN THE HOSPITAL, WHICH IS ALLEGEDLY IN CONFLICT WITH HER
TESTIMONY, WAS "AND EMMA (DECEASED) NEVER GOT OUT OF THE FRONT BED ROOM
UNTIL AFTER THE MEN (STEMBRIDGE AND TERRY) HAD ALREADY GONE." 

THIS MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE WAS
DENIED BY THE TRIAL COURT.  THE COURT OF APPEALS AFFIRMED ON THE GROUND
THAT THE EVIDENCE WAS IMPEACHING ONLY AND UNDER THE GEORGIA CODE, SEC.
70-204, WAS NOT THE BASIS FOR THE GRANTING OF A NEW TRIAL.  STEMBRIDGE
V. STATE, 84 GA. APP. 413, 415-416, 65 S.E.2D 819, 821.  THIS JUDGMENT
WAS ENTERED JUNE 5, 1951. 

PETITIONER THEN FILED A MOTION FOR REHEARING IN THE COURT OF APPEALS
AND FOR THE FIRST TIME ATTEMPTED TO RAISE THE QUESTION OF HIS FEDERAL
CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT.   HE CONTENDED
THAT HE HAD BEEN DENIED EQUAL PROTECTION AND DUE PROCESS IN THAT THE
STATE HAD USED MRS. HARRISON'S TESTIMONY TO OBTAIN HIS CONVICTION WITH
KNOWLEDGE THAT IT WAS PERJURED.  THE MOTION FOR REHEARING WAS DENIED
JULY 17, 1951, IN THESE WORDS:  "UPON CONSIDERATION OF THE MOTION FOR A
REHEARING FILED IN THIS CASE, IT IS ORDERED THAT IT BE HEREBY DENIED." 
ON SEPTEMBER 12, 1951, THE SUPREME COURT OF GEORGIA DENIED CERTIORARI
WITHOUT OPINION.  ON SEPTEMBER 17, 1951, THE COURT OF APPEALS, AT
PETITIONER'S REQUEST, STAYED THE REMITTITUR FOR NINETY DAYS TO ENABLE
HIM TO APPLY TO THIS COURT FOR CERTIORARI. 

ON OCTOBER 22, 1951, PETITIONER SOUGHT AND OBTAINED FROM THE COURT OF
APPEALS OF GEORGIA AN AMENDMENT OF THE RECORD IN THE FOLLOWING WORDS: 

"IN THE CONSIDERATION BY THIS COURT OF THE REHEARING WHICH RAISED THE
FEDERAL QUESTION THAT 'THE PLACING IN THIS CASE, BY THE STATE, OF
EVIDENCE KNOWN TO BE PERJURED SEEKS TO DEPRIVE PLAINTIFF IN ERROR OF
LIBERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF SECTION 2-103 OF THE
CONSTITUTION OF GEORGIA AND IN VIOLATION OF THE 14TH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES,' THIS COURT CONSIDERED THE
CONSTITUTIONAL QUESTION THUS RAISED AND DECIDED IT AGAINST THE
CONTENTIONS OF THE PLAINTIFF IN ERROR.  IN SO DOING THIS COURT
CONSIDERED SEC. 110-706 OF THE CODE OF GEORGIA OF 1933 WHICH PROVIDES
AS FOLLOWS:  'ANY JUDGMENT, VERDICT, RULE OR ORDER OF COURT, WHICH MAY
HAVE BEEN OBTAINED OR ENTERED UP, SHALL BE SET ASIDE AND BE OF NO
EFFECT, IF IT SHALL APPEAR THAT THE SAME WAS ENTERED UP IN CONSEQUENCE
OF CORRUPT AND WILFUL PERJURY; AND IT SHALL BE THE DUTY OF THE COURT IN
WHICH SUCH VERDICT, JUDGMENT, RULE OR ORDER WAS OBTAINED OR ENTERED UP
TO CAUSE THE SAME TO BE SET ASIDE UPON MOTION AND NOTICE TO THE ADVERSE
PARTY; BUT IT SHALL NOT BE LAWFUL FOR THE SAID COURT TO DO SO, UNLESS
THE PERSON CHARGED WITH SUCH PERJURY SHALL HAVE BEEN THEREOF DULY
CONVICTED, AND UNLESS IT SHALL APPEAR TO THE SAID COURT THAT THE SAID
VERDICT, JUDGMENT, RULE OR ORDER COULD NOT HAVE BEEN OBTAINED AND
ENTERED UP WITHOUT THE EVIDENCE OF SUCH PERJURED PERSON, SAVING ALWAYS
TO THIRD PERSONS INNOCENT OF SUCH PERJURY THE RIGHTS WHICH THEY MAY
LAWFULLY HAVE ACQUIRED UNDER SUCH VERDICT, JUDGMENT, RULE, OR ORDER
BEFORE THE SAME SHALL HAVE BEEN ACTUALLY VACATED AND SET ASIDE'; AND
BURKE V. STATE, 205 GA. 656, ET SEQ. WHICH IS A DECISION OF THE SUPREME
COURT OF THIS STATE AND IS THEREFORE BINDING ON THIS COURT, AND IN
WHICH THE CONSTITUTIONAL QUESTION RAISED BY THE PLAINTIFF IN ERROR WAS
DECIDED ADVERSELY TO HIS CONTENTIONS.  THE DECISION OF THIS COURT ON
THE REHEARING IN QUESTION BEING ADVERSE TO THE PLAINTIFF IN ERROR
NECESSARILY BROUGHT INTO CONSIDERATION THE QUESTION OF WHETHER THE
RIGHTS OF THE PLAINTIFF IN ERROR AS GUARANTEED TO HIM UNDER THE 14TH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES HAD BEEN VIOLATED,
AND SUCH DECISION NECESSARILY DETERMINED THAT SUCH RIGHTS HAD NOT BEEN
SO VIOLATED.  THE DECISION BY THIS COURT DENYING THE REHEARING
NECESSARILY DETERMINED THAT THE ACTION OF THE SOLICITOR GENERAL AS
SHOWN BY THE RECORD DID NOT DEPRIVE THE PLAINTIFF IN ERROR OF ANY
RIGHTS GUARANTEED TO HIM UNDER THE 14TH AMENDMENT OF THE CONSTITUTION
OF THE UNITED STATES; ALSO THE DECISION OF THIS COURT NECESSARILY
APPLIED THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES TO SEC. 110-706 OF THE CODE OF GEORGIA OF 1933 AND DECIDED THAT
ITS APPLICATION IN THIS CASE DID NOT AMOUNT TO AN ABRIDGEMENT OF ANY OF
THE RIGHTS OF THE PLAINTIFF IN ERROR GUARANTEED TO HIM UNDER THE 14TH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES; AND ALSO THAT THIS
COURT NECESSARILY CONSIDERED BURKE V. STATE, 205 GA. 656, WHICH IS A
DECISION OF THE SUPREME COURT OF THIS STATE BY WHICH THIS COURT IS
BOUND AND WHICH MUST BE FOLLOWED BY THIS COURT, THE EFFECT OF WHICH IS
TO HOLD THAT IT DOES NOT ABRIDGE ANY OF THE RIGHTS OF THE PLAINTIFF IN
ERROR GUARANTEED TO HIM UNDER THE 14TH AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES." 

REVIEW OF THIS AMENDING ORDER, WHICH PURPORTED TO PASS UPON THE
CONSTITUTIONAL QUESTION RAISED IN THE MOTION FOR REHEARING, WAS NOT
SOUGHT IN THE SUPREME COURT OF GEORGIA.  INSTEAD, CERTIORARI WAS SOUGHT
HERE AND GRANTED.  342 U.S. 940. 

FIRST, SINCE THE SUPREME COURT OF GEORGIA, WHICH WAS THE HIGHEST
COURT OF THE STATE IN WHICH A DECISION COULD BE HAD IN THIS CASE, WAS
NOT ASKED TO PASS UPON AND DID NOT PASS UPON THE PURPORTED AMENDING
ORDER, WE HAVE NO OCCASION TO CONSIDER ITS EFFECT. 

SECONDLY, AT THE TIME THE PETITION FOR CERTIORARI WAS DENIED BY THE
SUPREME COURT OF GEORGIA, THERE APPEARED IN THE PETITION THE FOLLOWING
RECITAL: 

"THIS JUDGMENT AND DECISION OF THE COURT OF APPEALS IN THIS CASE IN
FAILING AND REFUSING TO DECIDE APPLICANT'S CASE IN ACCORDANCE WITH SEC.
2-3708 OF THE CONSTITUTION OF GEORGIA ALSO VIOLATES ARTICLE 1, SEC. 1,
PAR. 3 OF THE CONSTITUTION OF GEORGIA (CODE SEC. 2-103) AND THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES (CODE
SEC. 1-815); BOTH OF WHICH SECTIONS PROVIDE THAT NO PERSON SHALL BE
DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW; AND ARTICLE 1, SEC.
1, PAR. 2, OF THE CONSTITUTION OF THE STATE OF GEORGIA AND THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES (CODE
SEC. 1-815), GUARANTEEING TO ALL PERSONS EQUAL PROTECTION OF THE LAW." 

IT IS APPARENT FROM THE RECORD THAT THE SUPREME COURT OF GEORGIA TOOK
NO ACTION UPON THE QUESTION OF FEDERAL CONSTITUTIONAL RIGHTS RAISED FOR
THE FIRST TIME ON THE MOTION FOR REHEARING IN THE COURT OF APPEALS. 
THIS WAS IN ACCORD WITH ITS RULE THAT CONSTITUTIONAL QUESTIONS MUST
FIRST BE RAISED IN THE TRIAL COURT.  BECKMANN V. ATLANTIC RFG.  CO.,
181 GA. 456, 182 S.E. 595.  THE ATTEMPT TO RAISE THE QUESTION OF
CONSTITUTIONAL RIGHTS IN THE GENERAL TERMS OF THE ABOVE QUOTATION FROM
THE PETITION FOR CERTIORARI DID NOT BEGIN TO MEET THE REQUIREMENT OF
THE SUPREME COURT OF GEORGIA FOR DEFINITENESS.  PERSONS V. LEA, 207 GA.
384, 61 S.E.2D 832. 

AT THIS STAGE, THE SUPREME COURT OF GEORGIA COULD HAVE DENIED
CERTIORARI ON ADEQUATE STATE GROUNDS.  WHERE THE HIGHEST COURT OF THE
STATE DELIVERS NO OPINION AND IT APPEARS THAT THE JUDGMENT MIGHT HAVE
RESTED UPON A NONFEDERAL GROUND, THIS COURT WILL NOT TAKE JURISDICTION
TO REVIEW THE JUDGMENT.  HEDGEBETH V. NORTH CAROLINA, 334 U.S. 806;
WOODS V. NIERSTHEIMER, 328 U.S. 211; WHITE V. RAGEN, 324 U.S. 760;
MCGOLDRICK V. GULF OIL CORP., 309 U.S. 2; WOOLSEY V. BEST, 299 U.S. 1;
LYNCH V. NEW YORK EX REL. PIERSON, 293 U.S. 52; CUYAHOGA POWER CO. V.
NORTHERN REALTY CO., 244 U.S. 300, 303-304; ADAMS V. RUSSELL, 229 U.S.
353, 358-362; ALLEN V. ARGUIMBAU, 198 U.S. 149, 154-155; JOHNSON V.
RISK, 137 U.S. 300, 307; KLINGER V. MISSOURI, 13 WALL.  257, 263. 

THE AMENDING ORDER OF THE GEORGIA COURT OF APPEALS DOES NOT, IN OUR
VIEW, CHANGE THE POSTURE OF THIS CASE - IT DOES NOT REMOVE THE STRONG
POSSIBILITY, IN LIGHT OF GEORGIA LAW, THAT THE SUPREME COURT OF GEORGIA
MIGHT HAVE RESTED ITS ORDER ON A NONFEDERAL GROUND.  WE ARE WITHOUT
JURISDICTION WHEN THE QUESTION OF THE EXISTENCE OF AN ADEQUATE STATE
GROUND IS DEBATABLE.  BACHTEL V. WILSON, 204 U.S. 36. 

THE PETITION FOR CERTIORARI WAS IMPROVIDENTLY GRANTED, AND THE CASE
IS DISMISSED.  DISMISSED. 

MR. JUSTICE REED, CONCURRING. 

WHILE I THINK THE BETTER COURSE WOULD BE TO AFFIRM THE DECISION OF
THE GEORGIA COURTS, I JOIN IN THE JUDGMENT OF THIS COURT. 

MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER AND MR. JUSTICE BURTON
DISSENT FROM THE DISMISSAL. 
..END :
















PALMER OIL CORP. V. AMERADA PETROLEUM CORP. 343 U.S. 390 


NO. 301.  ARGUED APRIL 25, 1952 - DECIDED MAY 12, 1952 - 204 OKLA. 543,
231 P.2D 997, APPEALS DISMISSED. 


APPELLANTS CONTEND THAT OKLA. STAT., 1941 (CUM. SUPP. 1949), TIT. 52,
SECS. 286.1-286.17, PROVIDING FOR UNITIZED MANAGEMENT OF COMMON SOURCES
OF SUPPLY OF OIL AND GAS IN OKLAHOMA, AND AN ORDER OF THE OKLAHOMA
CORPORATION COMMISSION THEREUNDER, VIOLATED ART. I, SEC. 10 OF THE
FEDERAL CONSTITUTION AND THE DUE PROCESS AND EQUAL PROTECTION CLAUSES
OF THE FOURTEENTH AMENDMENT.  HELD: IN THE LIGHT OF CITIES SERVICE GAS
CO. V. PEERLESS OIL & GAS CO., 340 U.S. 179, AND OTHER DECISIONS OF
THIS COURT CITED IN THE OPINION, APPELLANTS HAVE FAILED TO RAISE ANY
SUBSTANTIAL FEDERAL QUESTION, AND THE APPEALS ARE DISMISSED.  PP. 391
392. 

PALMER OIL CORP. ET AL. V. AMERADA PETROLEUM CORP. ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA.* 

*TOGETHER WITH NO. 302, FARWELL ET AL. V. AMERADA PETROLEUM CORP. ET
AL., ALSO ON APPEAL FROM THE SAME COURT. 

PER CURIAM. 

THESE TWO APPEALS CHALLENGE THE CONSTITUTIONALITY OF OKLA. STAT.,
1941 (CUM. SUPP. 1949), TIT. 52, SECS. 286.1-286.17, PROVIDING FOR
UNITIZED MANAGEMENT OF COMMON SOURCES OF SUPPLY OF OIL AND GAS IN
OKLAHOMA.  THIS STATUTE WAS REPEALED BY THE OKLAHOMA LEGISLATURE ON MAY
26, 1951, OKLA. LAWS 1951, C. 3A, SEC. 16, P. 142, AND WE ORDERED THE
CAUSES CONTINUED IN ORDER TO DETERMINE THE EFFECT OF THIS REPEAL ON THE
MATTERS RAISED IN THESE APPEALS.  342 U.S. 35 (1951).  AFTER BEING
ADVISED BY THE SUPREME COURT OF OKLAHOMA THAT THIS REPEAL HAD NO EFFECT
ON THESE CAUSES, WE NOTED PROBABLE JURISDICTION AND HEARD ARGUMENT. 

APPELLANTS CONTEND THAT THIS STATUTE AND AN ORDER ISSUED THEREUNDER
BY THE OKLAHOMA CORPORATION COMMISSION IMPAIR THEIR CONTRACTUAL RIGHTS
IN VIOLATION OF U.S. CONST., ART. I, SEC. 10, AND AMOUNT TO A DENIAL OF
THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT.  SPECIFICALLY, APPELLANTS ARGUE THAT THE STATUTE IS AN
UNREASONABLE EXERCISE OF THE STATE'S POLICE POWER AND AN UNREASONABLE
DELEGATION OF LEGISLATIVE AND JUDICIAL POWER TO PRIVATE GROUPS.  IN
ADDITION, APPELLANTS MAINTAIN THAT THE STATUTE IS TOO VAGUE AND
INDEFINITE TO FURNISH THE COMMISSION WITH ANY REASONABLE GUIDE FOR THE
ISSUANCE OF ORDERS APPROVING UNITIZATION PLANS, AND THAT THE EVIDENCE
DOES NOT SUPPORT THE COMMISSION'S FINDINGS OF FACT. 

IN THE LIGHT OF OUR PREVIOUS DECISIONS, APPELLANTS HAVE FAILED TO
RAISE ANY SUBSTANTIAL FEDERAL QUESTIONS AND THE APPEALS ARE THEREFORE
DISMISSED.  CITIES SERVICE GAS CO. V. PEERLESS OIL & GAS CO., 340 U.S.
179 (1950); RAILROAD COMMISSION OF TEXAS V. ROWAN & NICHOLS OIL CO.,
311 U.S. 570 (1941; RAILROAD COMMISSION OF TEXAS V. ROWAN & NICHOLS OIL
CO., 310 U.S. 573, AS AMENDED, 311 U.S. 614, 615 (1940); PATTERSON V.
STANOLIND OIL & GAS CO., 305 U.S. 376 (1939); HOME BUILDING & LOAN
ASSOCIATION V. BLAISDELL, 290 U.S. 398, 435, 436, 437 (1934); CHAMPLIN
REFINING CO. V. CORPORATION COMMISSION, 286 U.S. 210 (1932). 
DISMISSED. 
..END :
















DIXON V. DUFFY 343 U.S. 393 


NO. 79.  ARGUED OCTOBER 16, 1951 - CONTINUED NOVEMBER 5, 1951 - FURTHER
CONTINUED MAY 12, 1952. 


1.  IN THE ABSENCE OF ADVICE WHETHER THE SUPREME COURT OF CALIFORNIA
HAS CONDUCTED ANY FURTHER PROCEEDINGS IN THIS CASE OR HAS SO ENTERED AS
TO BECOME A PART OF THE RECORD ANY ORDER, OPINION OR CERTIFICATE SINCE
THIS COURT'S EARLIER CONTINUANCE OF THE CAUSE, A LETTER, APPARENTLY NOT
A PART OF THE CASE RECORD, RECEIVED BY THE CLERK OF THIS COURT AND
SIGNED BY THE CLERK OF THE SUPREME COURT OF CALIFORNIA IS NOT REGARDED
AS A SUFFICIENT "DETERMINATION" OF THE QUESTION WHETHER THE JUDGMENT
BELOW WAS INTENDED TO REST ON AN ADEQUATE INDEPENDENT STATE GROUND OR
WHETHER DECISION OF THE FEDERAL CLAIM WAS NECESSARY THERETO.  P. 393. 

2.  THIS CAUSE IS FURTHER CONTINUED FOR SUCH PERIOD AS WILL ENABLE
COUNSEL FOR PETITIONER TO SECURE FROM THE SUPREME COURT OF CALIFORNIA
AN OFFICIAL DETERMINATION OF THAT QUESTION.  P. 394. 

DIXON V. DUFFY, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

ON NOVEMBER 5, 1951, WE ORDERED THIS CAUSE "CONTINUED FOR SUCH PERIOD
AS WILL ENABLE COUNSEL FOR PETITIONER TO SECURE A DETERMINATION FROM
THE SUPREME COURT OF CALIFORNIA AS TO WHETHER THE JUDGMENT HEREIN WAS
INTENDED TO REST ON AN ADEQUATE INDEPENDENT STATE GROUND OR WHETHER
DECISION OF THE FEDERAL CLAIM WAS NECESSARY TO THE JUDGMENT RENDERED." 
342 U.S. 33, 34 (1951). 

WE HAVE NOT YET BEEN ADVISED WHETHER THE SUPREME COURT OF CALIFORNIA
HAS CONDUCTED ANY FURTHER PROCEEDINGS IN THIS CASE OR HAS SO ENTERED AS
TO BECOME A PART OF THE RECORD, ANY ORDER, OPINION OR CERTIFICATE AFTER
NOVEMBER 5, 1951.  WE DO NOT REGARD A LETTER, NOT APPARENTLY A PART OF
THE CASE RECORD, RECEIVED BY THE CLERK OF THIS COURT ON MARCH 31, 1952,
SIGNED BY THE CLERK OF THE SUPREME COURT OF CALIFORNIA AS A SUFFICIENT
"DETERMINATION" OF THE QUESTION RAISED IN OUR ORDER OF NOVEMBER 5,
1951. 

ACCORDINGLY, THE CAUSE IS ORDERED FURTHER CONTINUED FOR SUCH PERIOD
AS WILL ENABLE COUNSEL FOR PETITIONER TO SECURE FROM THE SUPREME COURT
OF CALIFORNIA ITS OFFICIAL DETERMINATION AS REQUESTED IN OUR ORDER OF
NOVEMBER 5, 1951.  CAUSE CONTINUED. 

MR. JUSTICE DOUGLAS, BEING OF THE OPINION THAT THE FEDERAL QUESTION
IN THE CASE HAS BEEN FULLY EXPOSED, DISSENTS. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















SWIFT & COMPANY V. UNITED STATES 343 U.S. 373 


NO. 282.  ARGUED MARCH 5-6, 1952 - DECIDED MAY 5, 1952 - AFFIRMED. 


APPELLANT FILED A COMPLAINT BEFORE THE INTERSTATE COMMERCE COMMISSION
AGAINST SEVERAL RAILROADS, ALLEGING THAT THE CHARGES ON DIRECT CARLOAD
SHIPMENTS OF LIVESTOCK FROM OUT-OF-STATE POINTS TO ITS PROPOSED NEW
PLANT IN THE CHICAGO PACKINGTOWN AREA, NOT ON THE LINE OF ANY LINE-HAUL
CARRIER, ARE (1) UNREASONABLE, (2) UNDULY PREJUDICIAL TO LIVESTOCK AS A
COMMODITY, AND (3) UNDULY PREJUDICIAL TO APPELLANT AS AGAINST ITS
COMPETITORS, ALL IN VIOLATION OF THE INTERSTATE COMMERCE ACT. 
APPELLANT ASKED FOR THE ESTABLISHMENT OF REASONABLE JOINT THROUGH RATES
FOR THE CHICAGO JUNCTION RAILROAD AND LINE-HAUL CARRIERS SERVING
CHICAGO, TO INCLUDE DELIVERY OF LIVESTOCK TO APPELLANT'S INDUSTRIAL
SIDING AT ITS PROPOSED PLANT, AND NOT TO EXCEED THE LINE-HAUL RATES
THEN IN EFFECT AT THE UNION STOCK YARDS AND OTHER POINTS OF DELIVERY ON
LINE-HAUL RAILROADS IN THE AREA.  THE TARIFF COMPLAINED OF INVOLVES A
FLAT ADDITIONAL CHARGE FOR SWITCHING CARLOAD FREIGHT TO AND FROM
INDUSTRIAL SIDINGS AND TEAM TRACKS.  THE COMMISSION FOUND THAT THE
SWITCHING CHARGE WAS NOT UNREASONABLE OR OTHERWISE UNLAWFUL AS APPLIED
TO LIVESTOCK AND THAT ESTABLISHMENT OF THE JOINT RATES WAS NOT IN THE
PUBLIC INTEREST; AND DISMISSED THE COMPLAINT.  HELD:  THE ORDER OF THE
COMMISSION IS BASED ON FINDINGS ABUNDANTLY SUPPORTED BY THE EVIDENCE ON
THE WHOLE RECORD, AND MUST BE SUSTAINED ON JUDICIAL REVIEW.  PP. 375
386. 

1.  WHETHER THE 70-YEAR-OLD SYSTEM FOR THE DELIVERY OF LIVESTOCK INTO
CHICAGO AT LINE-HAUL RATES SHOULD BE DISPLACED BY ANOTHER SYSTEM WHICH
WOULD FURTHER COMPLICATE OPERATIONS IN A HIGHLY CONGESTED AREA, AND
WHICH WOULD NECESSITATE THE USE OF PROPERTIES AND SERVICES NOT INCLUDED
WHEN THE PRESENT LINE-HAUL RATES AND TERMINALS WERE FIXED, IS A
QUESTION COMMITTED TO THE ADMINISTRATIVE JUDGMENT OF THE COMMISSION. 
PP. 381-382. 

2.  THE BURDEN OF SHOWING THAT THE SWITCHING CHARGES WERE
UNREASONABLE WAS UPON APPELLANT; AND THAT BURDEN WAS NOT SUSTAINED ON
THIS RECORD.  PP. 382-383. 

3.  THE FACT THAT THE RATE IS SO HIGH THAT APPELLANT FINDS IT
UNECONOMICAL TO USE DOES NOT IN AND OF ITSELF ESTABLISH
UNREASONABLENESS OF THE RATE.  P. 383. 

4.  THE CONTENTION THAT BECAUSE "DEAD FREIGHT" IS DELIVERED TO
APPELLANT'S INDUSTRIAL SIDING AT THE LINE-HAUL RATE, IT IS A
DISCRIMINATION AGAINST LIVESTOCK AS A COMMODITY TO IMPOSE A SWITCHING
CHARGE IN ADDITION TO THE LINE-HAUL RATE FOR DELIVERY OF LIVESTOCK TO
THE SAME POINT, CANNOT BE SUSTAINED, IN VIEW OF THE COMMISSION'S
FINDINGS AS TO THE DIFFERENT AND MORE COMPLEX NATURE OF THE SWITCHING
SERVICES REQUIRED BY LIVESTOCK AS COMPARED WITH "DEAD FREIGHT."  UNITED
STATES V. BALTIMORE & O.R. CO., 333 U.S. 169, DISTINGUISHED.  PP. 383
385. 

5.  APPELLANT FAILED TO SUSTAIN ITS BURDEN OF SHOWING PREJUDICIAL
TREATMENT OF IT AS COMPARED WITH ITS COMPETITORS IN LOCALITIES OTHER
THAN CHICAGO, SINCE IT RECEIVES THE SAME RATES AND SERVICES AS OTHERS
SIMILARLY SITUATED.  P. 385. 

6.  IT IS UNNECESSARY TO PASS UPON THE QUESTION OF THE LEGALITY OF A
COVENANT WHICH IS SAID TO BE INVOLVED IN THIS CASE, SINCE IT IS NOT
SHOWN TO HAVE BEEN CONTROLLING IN ANY MANNER NOR TO HAVE BEEN RELIED
UPON BY THE COMMISSION.  PP. 385-386. 

SWIFT & COMPANY V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

ON REVIEW OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
DISMISSING APPELLANT'S COMPLAINT, 274 I.C.C. 557, A THREE-JUDGE
DISTRICT COURT SUSTAINED THE COMMISSION'S ORDER.  APPELLANT APPEALED
DIRECTLY TO THIS COURT PURSUANT TO 28 U.S.C. SECS. 1253 AND 2101(B). 
AFFIRMED, P. 386. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

ON JULY 28, 1947, THE APPELLANT, SWIFT AND COMPANY, FILED A
COMPLAINT, LATER AMENDED, BEFORE THE INTERSTATE COMMERCE COMMISSION
AGAINST THE ATCHISON, TOPEKA AND SANTA FE AND OTHER RAILROADS, ALLEGING
THAT THE CHARGES ON DIRECT CARLOAD SHIPMENTS OF LIVESTOCK (FN1) FROM
POINTS OUTSIDE ILLINOIS TO ITS PROPOSED NEW PLANT IN THE CHICAGO
PACKINGTOWN AREA ARE (1) UNREASONABLE, (2) UNDULY PREJUDICIAL TO
LIVESTOCK AS A COMMODITY, AND (3) UNDULY PREJUDICIAL TO SWIFT AS
AGAINST ITS COMPETITORS, ALL IN VIOLATION OF THE INTERSTATE COMMERCE
ACT.  (FN2)  SWIFT ASKED FOR THE ESTABLISHMENT OF REASONABLE JOINT
THROUGH RATES FOR LINE-HAUL CARRIERS SERVING CHICAGO AND THE CHICAGO
JUNCTION RAILROAD'S LESSEE, THE CHICAGO RIVER AND INDIANA RAILROAD,
HEREAFTER CALLED JUNCTION, (FN3) SUCH JOINT RATES TO INCLUDE DELIVERY
OF LIVESTOCK TO SWIFT'S INDUSTRIAL SIDING AT ITS PROPOSED PLANT AND NOT
TO EXCEED THE LINE-HAUL RATES NOW IN EFFECT AT THE UNION STOCK YARDS
AND OTHER POINTS OF DELIVERY ON LINE-HAUL RAILROADS IN THE AREA. 
SWIFT'S PROPOSED PLANT, NEAR ITS PRESENT PLANT, WILL BE LOCATED ON
JUNCTION'S RAILS AND NOT ON THOSE OF ANY LINE-HAUL CARRIER. 

AFTER SWIFT FILED ITS COMPLAINT, JUNCTION SOUGHT TO FILE A NEW TARIFF
CANCELLING THE PRESENT ONE AS IT APPLIES TO LIVESTOCK.  THE PRESENT
TARIFF PROVIDES A FLAT CHARGE FOR SWITCHING CARLOAD FREIGHT TO AND FROM
INDUSTRIAL SIDINGS AND TEAM TRACKS; UNDER THE NEW TARIFF, JUNCTION
WOULD NOT HAVE OFFERED SWITCHING SERVICES FOR LIVESTOCK UNDER ANY
CIRCUMSTANCES.  SWIFT AND OTHER OBJECTED, AND THE FILING WAS SUSPENDED
SO THAT THE COMMISSION COULD HEAR SWIFT'S COMPLAINT AND JUNCTION'S
REQUEST TOGETHER ON A CONSOLIDATED RECORD. 

THE COMMISSION DISMISSED THE COMPLAINT AND REFUSED TO CANCEL THE
SWITCHING TARIFF AS TO LIVESTOCK.  SWIFT & CO. V. ATCHISON, T.&S.F.R.
CO., 274 I.C.C. 557.  SWIFT THEN SOUGHT REVIEW OF THE COMMISSION'S
ORDER OF DISMISSAL BY A STATUTORY THREE-JUDGE DISTRICT COURT.  THAT
COURT SUSTAINED THE COMMISSION'S ORDER, AND THIS APPEAL FOLLOWED
PURSUANT TO 28 U.S.C. SECS. 1253 AND 2101(B).  NO QUESTION IS RAISED AS
TO THE COMMISSION'S REFUSAL TO CANCEL THE SWITCHING TARIFF. 

ALL LIVESTOCK SHIPMENTS BY RAIL TO THE CHICAGO AREA ARE HANDLED
SOLELY BY THE LINE-HAUL CARRIERS; DELIVERY IS DIRECT TO LINE-HAUL
TERMINALS AT THE LINE-HAUL RATE.  SUCH TERMINALS ARE THE STOCK YARDS
AND THOSE UNLOADING PENS LOCATED ON SWITCHES DIRECTLY ADJOINING A LINE
HAUL CARRIER'S RAILS.  SWIFT IS THE ONE LARGE PACKER IN CHICAGO THAT
HAS SUCH A LINE-HAUL TERMINAL AND CAN RECEIVE ALL ITS DIRECT SHIPMENTS
OF LIVESTOCK AT LINE-HAUL RATES.  THIS TERMINAL, THE OMAHA PACKING
PLANT, A SWIFT SUBSIDIARY SITUATED TWO AND ONE-HALF MILES NORTHEAST OF
SWIFT'S PRESENT PLANT AND OUTSIDE THE STOCK YARDS DISTRICT, IS LOCATED
ON THE RAILS OF THE BURLINGTON RAILROAD, A LINE-HAUL CARRIER.  HERE
SWIFT RECEIVES ITS DIRECT LIVESTOCK SHIPMENTS, ABOUT 6,500 CARLOADS
ANNUALLY, WHICH IT TRUCKS TO ITS PLANT IN THE STOCK YARDS AREA.  (FN4)
THE BALANCE OF THE LIVESTOCK DELIVERED IN CHICAGO, WHETHER DIRECT OR
OTHERWISE, IS DELIVERED TO THE STOCK YARDS, WITH SOME MINOR EXCEPTIONS,
BY THE LINE-HAUL CARRIERS OVER CERTAIN JUNCTION RUNNING TRACKS TO THE
STOCK YARDS UNLOADING PENS.  THE CARRIERS HAVE TRACKAGE RIGHTS ON THESE
RUNNING TRACKS FOR WHICH A CHARGE IS PAID TO JUNCTION.  ON DIRECT
SHIPMENTS TO A PACKER DELIVERED TO THE STOCK YARDS, THE YARDS'
FACILITIES, INCLUDING A VAST SYSTEM OF RUNWAYS, OVERPASSES AND TUNNELS,
ARE USED TO DRIVE THE LIVESTOCK FROM THE UNLOADING PENS TO THE PACKER'S
PLANT.  THE CHARGES FOR THESE FACILITIES ARE FIXED BY THE SECRETARY OF
AGRICULTURE.  JUNCTION HAS NEVER SWITCHED OR HANDLED ANY LIVESTOCK
EXCEPT IN AN EMERGENCY. 

THE DELIVERY OF LIVESTOCK IN THE STOCK YARDS AREA IS TO BE CONTRASTED
WITH THAT OF "DEAD FREIGHT."  (FN5)  THE LINE-HAUL CARRIERS MAKE NO
DIRECT DELIVERIES OF DEAD FREIGHT; NONE OF THE APPROXIMATELY 500
INDUSTRIES IN THE AREA HAVE PLANTS LOCATED ON LINE-HAUL RAILS AND THE
LINE-HAUL CARRIERS DO NOT HAVE TRACKAGE RIGHTS OVER THE JUNCTION RAILS
WHICH LEAD TO THE PLANTS.  CONSEQUENTLY, ALL DEAD FREIGHT IS SWITCHED
BY JUNCTION AND DELIVERED TO THE INDUSTRIAL SIDINGS OR TEAM TRACKS
ALONGSIDE OF AND CONNECTING WITH JUNCTION'S RAILS. 

SINCE JUNCTION PROVIDES ONLY TRACKAGE RIGHTS FOR THE LIVESTOCK
SHIPMENTS TO THE STOCK YARDS, THE LINE-HAUL RATES ON LIVESTOCK DO NOT
INCLUDE JUNCTION AS A PARTICIPATING CARRIER.  JUNCTION DOES
PARTICIPATE, HOWEVER, IN JOINT RATES FOR DEAD FREIGHT.  FOR ANY
SWITCHING OPERATION NOT COVERED BY LINE-HAUL RATES IN WHICH JUNCTION
PARTICIPATES, JUNCTION HAS A FLAT SWITCHING CHARGE OF $28.80 PER CAR. 
(FN6)  THIS CHARGE WOULD APPLY TO ANY DIRECT SHIPMENTS AT SWIFT'S
PROPOSED PLANT IN PACKINGTOWN WHICH, AS WE HAVE NOTED, IS NOT LOCATED
ON ANY LINE-HAUL RAILS BUT RATHER ON JUNCTION'S RAILS. 

TRAINS FOR THE STOCK YARDS ARE MADE UP AT THE BREAK-UP YARDS OF THE
LINE-HAUL CARRIERS, LOCATED FROM A FEW TO SEVERAL MILES FROM THE STOCK
YARDS.  A TRAIN COMING IN FROM THE WEST MOVES TO THE ASHLAND YARDS OF
JUNCTION, WHICH ARE DIVIDED INTO THE NORTH AND THE SOUTH YARDS.  THE
NORTH YARDS ARE USED FOR THE RECEIPT, SEPARATION, AND DISTRIBUTION OF
CARS OF DEAD FREIGHT AND EMPTIES OUTBOUND FROM THE PACKERS AND OTHER
INDUSTRIES, WHILE THE SOUTH YARDS ARE USED FOR CARS OF DEAD FREIGHT
INBOUND.  THIS DIVISION IS MADE BY THREE PARALLEL RUNNING TRACKS OWNED
BY JUNCTION, NUMBERED 1102, 1103 AND 1104, OVER WHICH THE LINE-HAUL
CARRIERS ARE PERMITTED TO OPERATE IN AND OUT OF THE STOCK YARDS.  SIXTY
THREE PERCENT OF THE TRAINS TO THE STOCK YARDS AREA ARE COMPOSED
EXCLUSIVELY OF LIVESTOCK.  THE BALANCE ARE CONSOLIDATED TRAINS,
CARRYING BOTH LIVESTOCK AND DEAD FREIGHT. 

AN ALL-LIVESTOCK TRAIN MOVES BY LINE-HAUL CARRIER, USING ITS OWN CREW
AND EQUIPMENT, EASTWARD OVER TRACK 1103 TO THE UNLOADING PENS IN THE
STOCK YARDS AND IS THERE SPOTTED FOR UNLOADING.  WHILE THE CARS ARE
BEING UNLOADED, THE ENGINE CUTS OFF, PASSES AROUND TO THE OTHER END OF
THE TRAIN AND COUPLES ON; WHEN THE UNLOADING IS COMPLETED, THE TRAIN
RETURNS WESTWARD OVER TRACK 1102 OR 1104 THROUGH JUNCTION'S ASHLAND
YARDS AND BACK TO ITS BREAK-UP YARDS WITH THE EMPTIES.  THIS ALL
LIVESTOCK TRAIN IS DELIVERED TO THE STOCK YARDS IN ONE MOVEMENT BY LINE
HAUL CARRIERS FOR LINE-HAUL RATES. 

A CONSOLIDATED TRAIN MOVES THROUGH THE ASHLAND YARDS FROM THE BREAK
UP YARDS TO A CERTAIN POINT ON TRACK 1103, JUST AS AN ALL-LIVESTOCK
TRAIN.  IN THIS CONSOLIDATED TRAIN, THE DEAD-FREIGHT CARS ARE HAULED
JUST BEHIND THE ENGINE AND THE LIVESTOCK CARS IN THE REAR.  AT A
CERTAIN POINT ON TRACK 1103 THE DEAD-FREIGHT CARS ARE CUT OUT AND
SWITCHED INTO THE SOUTH YARDS UPON ONE OF THE NINE JUNCTION RECEIVING
TRACKS, FROM WHICH TRACKS JUNCTION LATER MOVES THE DEAD FREIGHT TO THE
INDUSTRIAL SIDINGS AND TEAM TRACKS OF THE PACKERS AND OTHER INDUSTRIES
LOCATED IN THE AREA.  AFTER THE DEAD FREIGHT HAS BEEN SWITCHED TO THE
RECEIVING TRACKS, THE LINE-HAUL ENGINE RETURNS TO TRACK 1103 TO COUPLE
ONTO THE LIVESTOCK CARS AND MOVE THEM TO THE UNLOADING PENS.  WHILE THE
DEAD FREIGHT IS BEING SWITCHED TO THE SOUTH YARDS, TRACK 1103, THE ONLY
MEANS OF INGRESS TO THE STOCK YARDS FROM THE WEST, IS BLOCKED BY THE
LIVESTOCK CARS REMAINING ON THE TRACK.  SOMETIMES AS MANY AS FOUR
TRAINS AT A TIME ARE TIED UP BY REASON OF THE BLOCK ON TRACK 1103. 

AN ALL-LIVESTOCK TRAIN COMING IN FROM THE EAST DOES NOT PASS THROUGH
THE ASHLAND YARDS BUT PROCEEDS DIRECTLY TO THE STOCK YARDS FROM THE
BREAK-UP YARDS.  HOWEVER, ALL DEAD FREIGHT MOVES THROUGH THE ASHLAND
YARDS, AS WOULD ALL LIVESTOCK TO BE DELIVERED TO SWIFT IF ITS COMPLAINT
WERE GRANTED.  THE FACT THAT MOST OF THE LIVESTOCK SHIPMENTS ARE
HANDLED BY THE WESTERN CARRIERS MAKES THIS PORTION OF THE
TRANSPORTATION OPERATION UNIMPORTANT FOR PRESENT PURPOSES. 

IF THIS COMPLAINT WERE GRANTED, LIVESTOCK WOULD MOVE TO SWIFT'S
PROPOSED PLANT IN THE MANNER OF DEAD FREIGHT.  INSTEAD OF ONE MOVEMENT,
AS THE LINE-HAUL MOVEMENT TO THE STOCK YARDS, THERE WOULD BE TWO
MOVEMENTS - ONE TO THE RECEIVING TRACKS IN THE SOUTH ASHLAND YARDS MADE
BY THE LINE-HAUL CARRIERS, AND THE SECOND MOVEMENT BY JUNCTION FROM ITS
SOUTH YARDS TO SWIFT'S PLANT, LOCATED ON JUNCTION'S RAILS.  THE TIE-UP
ON TRACK 1103, DESCRIBED ABOVE, WOULD BE INCREASED ACCORDINGLY AS
TRAINS CONSIGNED TO THE STOCK YARDS WOULD HAVE TO PLACE ANY OF SWIFT'S
LIVESTOCK CARS ON THE JUNCTION RECEIVING TRACKS.  THE CONGESTION AND
COSTS INVOLVED WOULD BE INCREASED BY THE FACT THAT LIVESTOCK CANNOT BE
HANDLED AS EASILY AS DEAD FREIGHT.  LIVESTOCK CARS CANNOT BE "KICKED"
IN SWITCHING OPERATIONS AS CAN DEAD-FREIGHT CARS, WHICH ARE STOPPED BY
COLLISION WITH OTHER CARS.  LIVESTOCK CARS MUST BE PLACED WITH A
MINIMUM OF ROUGH HANDLING.  STILL FURTHER DIFFICULTIES WOULD BE
ENCOUNTERED BECAUSE LIVESTOCK MUST BE UNLOADED, WATERED AND FED EVERY
TWENTY-EIGHT HOURS, IN ACCORDANCE WITH FEDERAL LAW.  45 U.S.C. SEC. 71
ET SEQ. WHEN LIVESTOCK ARRIVES IN CHICAGO, THERE ARE GENERALLY ONLY A
FEW HOURS REMAINING FOR DELIVERY TO UNLOADING PENS IN ORDER TO COMPLY
WITH THIS LAW.  THEREFORE, EXPEDITIOUS HANDLING OF THE LIVESTOCK IS
REQUIRED, ESPECIALLY SINCE THERE ARE NO FACILITIES ALONG JUNCTION'S
RAILS FOR SUCH UNLOADING, WATERING AND FEEDING.  SOME 31 HOURS ARE
REQUIRED FOR A CAR OF DEAD FREIGHT TO CLEAR ASHLAND YARDS AND BE
DELIVERED.  IT IS APPARENT THAT LIVESTOCK MUST BE HANDLED IN MUCH LESS
TIME. 

IF THE COMPLAINT WERE GRANTED, SWIFT WOULD NOT PAY FOR THE SECOND OR
SWITCHING MOVEMENT BY JUNCTION.  ALTHOUGH JUNCTION HAS NEVER MOVED
LIVESTOCK IN THE PAST EXCEPT IN AN EMERGENCY, UNDER EXISTING TARIFFS IT
CAN CHARGE SWIFT THE SWITCHING RATE OF $28.80 PER CAR NOW APPLIED TO
OTHER COMMODITIES.  BUT IF SWIFT IS TO OBTAIN WHAT IT SEEKS, THE LINE
HAUL CARRIER MUST ESTABLISH AS THE LINE-HAUL RATE A JOINT RATE WITH
JUNCTION WHICH IS NO HIGHER THAN THE PRESENT LINE-HAUL RATE.  THIS
WOULD MEAN THAT THE LINE-HAUL CARRIER MUST ABSORB THE SWITCHING CHARGE,
OR THAT BOTH THE SWITCHING CHARGE AND THE PRESENT LINE-HAUL RATE MUST
BE DECREASED, WITH THE LINE-HAUL CARRIER AND JUNCTION SHARING IN
ABSORBING THE AMOUNT OF THE DECREASE. 

THE DELIVERY OF LIVESTOCK THROUGH THIS BOTTLENECK OF ASHLAND YARDS
MUST BE GEARED TO PROVIDE FOR THE EXPEDITIOUS AND SPECIAL HANDLING THAT
LIVESTOCK MUST RECEIVE.  THE HUGE QUANTITIES OF DEAD FREIGHT WHICH ARE
HANDLED (FN7) AND THE RESTRICTED FACILITIES OF ASHLAND YARDS HAVE
RESULTED IN THE DEVELOPMENT, OVER A PERIOD OF SEVENTY YEARS, OF A
COMPLICATED, INTRICATE PATTERN OF OPERATION.  FOR THIS REASON, ANY
ATTEMPT TO CHANGE THE PATTERN CALLS FOR THE MOST EXPERT CONSIDERATION
AND ADMINISTRATIVE JUDGMENT - A TASK THAT COURTS ARE ILL-FITTED TO
PERFORM.  IF THE COMMISSION GAVE WEIGHT TO THE RELEVANT FACTORS, ITS
DECISION SHOULD NOT BE OVERTURNED.  WE MOVE THEN TO THE COMMISSION'S
REPORT. 

THE COMMISSION FOUND THAT IN THE CIRCUMSTANCES PRESENTED THE
SWITCHING CHARGE PROVIDED BY THE EXISTING TARIFF WOULD NOT BE
UNREASONABLE OR OTHERWISE UNLAWFUL AS APPLIED TO LIVESTOCK, AND
SECONDLY, THAT THE ESTABLISHMENT OF JOINT RATES FOR SUCH TRANSPORTATION
WAS NOT NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST.  IT TOOK ACCOUNT
OF THE HISTORICAL DEVELOPMENT OF THE STOCK YARDS AND THE DELIVERY OF
LIVESTOCK THEREIN WHICH TOGETHER WITH THE INDUSTRIAL DEVELOPMENT OF THE
AREA HAVE MADE FURTHER YARD EXPANSION IMPRACTICABLE.  THE COMMISSION
FOUND THAT THE SWITCHING YARDS ARE NOW HIGHLY CONGESTED AND, AS ONE
WITNESS PUT IT, ARE "RUNNING BANK FULL."  WHILE IT IS TRUE THAT
LIVESTOCK SHIPMENTS INTO THE AREA HAVE BEEN DECREASING, DEAD-FREIGHT
SHIPMENTS HAVE INCREASED SEVERALFOLD, AND THE CONGESTION WILL CONTINUE
IN THE FORESEEABLE FUTURE.  THE COMMISSION GAVE CAREFUL CONSIDERATION
TO THE COMPLICATION OF OPERATIONS THROUGH THE ADDITIONAL AND DIFFERENT
SWITCHING MOVEMENTS REQUIRED IN THE HANDLING OF LIVESTOCK AS CONTRASTED
WITH DEAD FREIGHT.  WHETHER THE SYSTEM FOR THE DELIVERY OF LIVESTOCK
INTO CHICAGO WHICH HAS EXISTED FOR OVER SEVENTY YEARS AT AN ESTABLISHED
LINE-HAUL RATE, AND WHICH HAS RECOGNIZED DEFINITE TERMINALS CALLING FOR
A MINIMUM OF TRAIN MOVEMENTS IN A HIGHLY CONGESTED AREA, SHOULD BE
DISPLACED BY ANOTHER SYSTEM WHICH WOULD FURTHER COMPLICATE THE
OPERATIONS AND WOULD NECESSITATE THE USE OF PROPERTIES AND SERVICES NOT
INCLUDED WHEN THE PRESENT LINE-HAUL RATES AND TERMINALS WERE FIXED, IS
A QUESTION COMMITTED TO THE ADMINISTRATIVE JUDGMENT OF THE COMMISSION. 
WHEN THAT JUDGMENT IS BASED ON FINDINGS ABUNDANTLY SUPPORTED BY THE
EVIDENCE ON THE WHOLE RECORD, AS IT IS IN THIS CASE, IT IS THE DUTY OF
THE COURTS TO SUSTAIN IT.  AYRSHIRE CORP. V. UNITED STATES, 335 U.S.
573, 593; INTERSTATE COMMERCE COMMISSION V. JERSEY CITY, 322 U.S. 503,
522-523; SWIFT & CO. V. UNITED STATES, 316 U.S. 216, 230-231; ADAMS V.
MILLS, 286 U.S. 397, 409-410; INTERSTATE COMMERCE COMMISSION V. UNION
PACIFIC R. CO., 222 U.S. 541, 547-548.    THE QUESTION OF THE
REASONABLENESS OF THE SWITCHING CHARGE WAS POSED TO THE COMMISSION IN
THE CASE OF HYGRADE FOOD PRODUCTS CORP. V. ATCHISON, T.&S.F.R. CO., 195
I.C.C. 553.  THERE, HYGRADE SOUGHT TO HAVE THE RAILROADS ABSORB THE
SWITCHING CHARGE OF JUNCTION, BUT THE COMMISSION FOUND THAT IT WAS A
REASONABLE ADDITIONAL CHARGE TO THE LINE-HAUL RATE.  ON APPEAL TO THIS
COURT THAT FINDING WAS NOT DISTURBED.  ATCHISON, T.&S.F.R. CO. V.
UNITED STATES, 295 U.S. 193.  AT THAT TIME THE CHARGE WAS $12 PER CAR. 
IT IS NOW CONSIDERABLY HIGHER, BUT THE CHARGES FOR OTHER COMMODITIES
AND SERVICES HAVE RISEN ALSO. 

THE BURDEN OF SHOWING THAT THE SWITCHING CHARGES WERE UNREASONABLE
WAS UPON SWIFT.  LOUISVILLE & N.R. CO. V. UNITED STATES, 238 U.S. 1,
11.  ON THIS RECORD, THAT BURDEN WAS NOT SUSTAINED; THE CHARGES HAVING
EXISTED FOR YEARS AND HAVING BEEN APPROVED AS REASONABLE BY THE
COMMISSION AND TACITLY APPROVED BY THIS COURT, ATCHISON, T.&S.F.R. CO.
V. UNITED STATES, SUPRA, THEIR REASONABLENESS IS PRESUMED TO CONTINUE
IN THE ABSENCE OF A SHOWING TO THE CONTRARY. 

THE FACT THAT THE RATE IS SO HIGH THAT SWIFT FINDS IT UNECONOMICAL TO
USE DOES NOT IN AND OF ITSELF ESTABLISH THE UNREASONABLENESS OF THE
RATE.  A REVISION OF THE SWITCHING CHARGE ON THE GROUND OF ITS
UNREASONABLENESS AND THE ESTABLISHMENT OF A REASONABLE RATE FOR
SWITCHING WAS NOT ASKED.  ANY RATE IN EXCESS OF THE LINE-HAUL RATE TO
THE STOCK YARDS WAS CONSIDERED BY SWIFT AS UNREASONABLE, AS IT WAS
DEMANDING A JOINT RATE NOT IN EXCESS OF THE LINE-HAUL RATE TO THE STOCK
YARDS.  UNREASONABLENESS IS NOT MADE OUT BY MERE ASSERTION.  FEDERAL
POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591, 602. 

IT IS NEXT ARGUED THAT BECAUSE DEAD FREIGHT IS DELIVERED TO SWIFT'S
INDUSTRIAL SIDING AT THE LINE-HAUL RATE, IT IS A DISCRIMINATION AGAINST
LIVESTOCK AS A COMMODITY TO IMPOSE A SWITCHING CHARGE IN ADDITION TO
THE LINE-HAUL RATE FOR DELIVERY OF LIVESTOCK TO THE SAME POINT.  THAT
ARGUMENT IS COMPLETELY ANSWERED BY THE COMMISSION'S FINDINGS AS TO THE
DIFFERENT AND MORE COMPLEX NATURE OF THE SWITCHING SERVICES REQUIRED BY
LIVESTOCK AS COMPARED WITH DEAD FREIGHT.  THE COST OF THE SWITCHING
SERVICE PERFORMED BY JUNCTION IN THE DELIVERY OF DEAD FREIGHT IS
FIGURED IN THE LINE-HAUL RATE.  THE LINE-HAUL RATE FOR LIVESTOCK, THE
REASONABLENESS OF WHICH IS NOT IN AND OF ITSELF ATTACKED HERE, HAS
NEVER CONTEMPLATED SUCH SWITCHING SERVICES BECAUSE JUNCTION HAS NEVER
PERFORMED THEM. 

RELIANCE IS PLACED BY SWIFT UPON THE CASE OF UNITED STATES V.
BALTIMORE & O.R. CO., 333 U.S. 169.  THERE, DELIVERY TO INDUSTRIAL
SIDINGS AT LINE-HAUL RATES HAD BEEN THE PRACTICE.  THE CLEVELAND STOCK
YARDS SOUGHT TO TERMINATE SUCH DELIVERY BECAUSE IT OWNED A SEGMENT OF
THE TRACK USED TO SERVE SWIFT AND WANTED TO PREVENT THE USE THEREOF
UNLESS LIVESTOCK BE ROUTED THROUGH ITS YARDS AND THE CHARGE THEREFOR
PAID TO THE STOCK YARDS.  IN THE ALTERNATIVE, THE STOCK YARDS WANTED
THE CARRIERS TO PAY THE EQUIVALENT OF SUCH CHARGE FOR THE USE OF THE
STOCK YARDS' TRACK LEADING TO SWIFT'S INDUSTRIAL SIDING.  SUCH A PLAN
WOULD HAVE DISCRIMINATED AGAINST SWIFT BECAUSE ITS COMPETITORS COULD
GET DELIVERY WITHOUT THE USE OF THE STOCK YARDS' TRACK AND HENCE WOULD
BE UNAFFECTED BY THE STOCK YARDS' DEMANDS.  THIS COURT HELD THAT THE
STOCK YARDS COULD NOT USE ITS TRACK OWNERSHIP TO WORK A DISCRIMINATION
WHICH CONGRESS HAD SAID SHOULD NOT EXIST. 

"HERE CONGRESS UNDER ITS CONSTITUTIONAL AUTHORITY HAS PROVIDED THAT
NO RAILROAD SHALL ENGAGE IN CERTAIN TYPES OF DISCRIMINATORY CONDUCT IN
VIOLATION OF THREE PROVISIONS OF THE ACT.  THE COMMISSION FOUND THAT
DISCRIMINATORY CONDUCT HERE.  THE EXCUSE OFFERED BY THE RAILROADS IS
THAT THE OWNER OF TRACK 1619 REQUIRED THEM TO DO THE PROHIBITED
THINGS.  BUT THE COMMAND OF CONGRESS AGAINST DISCRIMINATION CANNOT BE
SUBORDINATED TO THE COMMAND OF A TRACK OWNER THAT A RAILROAD USING THE
TRACK PRACTICE DISCRIMINATION."  ID., AT P. 177 

DELIVERY TO AN INDUSTRIAL SIDING AT LINE-HAUL RATES WAS THERE ALLOWED
BY THE COMMISSION AND SUSTAINED BY THIS COURT FOR THE REASON THAT THE
STOCK YARDS SOUGHT BY ITS DISCRIMINATORY ACT TO UPSET THE USUAL
DELIVERY PROCEDURE, WHILE HERE, IN A VASTLY MORE COMPLICATED
OPERATIONAL SETTING, SWIFT WOULD COMPLICATE IT FURTHER BY OBTAINING FOR
ITSELF A SERVICE AT LINE-HAUL RATES DIFFERENT FROM THE USUAL DELIVERY
PROCEDURE AND NOT CONTEMPLATED OR CONSIDERED WHEN THE PRESENT LINE-HAUL
RATES TO CHICAGO WERE FIXED.  IF SWIFT WERE GRANTED THE RELIEF IT SEEKS
HERE, IT WOULD BE OBTAINING SOMETHING THAT NO OTHER PACKER IN CHICAGO
RECEIVES, AND, INSTEAD OF BEING DISCRIMINATED AGAINST, A DISCRIMINATION
WOULD BE GRANTED IN ITS FAVOR.  SWIFT ALREADY ENJOYS A COMPETITIVE
ADVANTAGE BECAUSE IT CAN OBTAIN DIRECT DELIVERY OF LIVESTOCK AT ITS
OMAHA PLANT AT LINE-HAUL RATES.  IT CAN HARDLY BE HEARD TO SAY THAT THE
PRESENT SYSTEM FAVORS ITS COMPETITORS IN THE STOCK YARDS' AREA. 

SWIFT ALSO FAILED IN ITS BURDEN OF SHOWING PREJUDICIAL TREATMENT TO
IT AS OPPOSED TO ITS COMPETITORS IN LOCALITIES OTHER THAN CHICAGO, WHO
DO RECEIVE DELIVERY ON INDUSTRIAL SIDINGS AT LINE-HAUL RATES.  THESE
COMPETITORS' PLANTS ARE LOCATED FOR THE MOST PART ON LINE-HAUL
CARRIERS' RAILS, AND NO COMPLICATED SWITCHING MOVEMENTS ARE INVOLVED. 
SWIFT RECEIVES AT CHICAGO, AS ELSEWHERE, THE SAME RATES AND SERVICES AS
OTHER PACKERS SIMILARLY SITUATED. 

JUNCTION IS A SUBSIDIARY OF THE NEW YORK CENTRAL RAILROAD COMPANY. 
THE LATTER HAD AN AGREEMENT WITH THE STOCK YARDS WHICH CONTAINED A
PROVISION THAT NEW YORK CENTRAL WOULD OPERATE JUNCTION FOR "THE
BENEFIT, ADVANTAGE, AND BEHOOF OF THE BUSINESS AND AFFAIRS" OF THE
STOCK YARDS.  WHEN THIS PROCEEDING WAS BEGUN BEFORE THE COMMISSION,
JUNCTION DID NOT INTEND TO DEFEND IT.  ATTORNEYS FOR THE STOCK YARDS
WROTE A LETTER TO THE GENERAL COUNSEL OF NEW YORK CENTRAL, CALLING
ATTENTION TO THE FAILURE OF JUNCTION TO DEFEND AND TO THE COVENANT IN
THE AGREEMENT.  THEY POINTED OUT THAT JUNCTION POSSESSED THE EVIDENCE
NECESSARY TO MEET THE ISSUE IN SWIFT'S COMPLAINT, THAT SUCH EVIDENCE
SHOULD BE ADDUCED, AND THAT UNDER THE AGREEMENT, JUNCTION WAS OBLIGATED
TO DEFEND IN ORDER TO AVOID IRREPARABLE INJURY TO THE STOCK YARDS. 
THEREAFTER, JUNCTION DEFENDED. 

IT IS SWIFT'S CONTENTION THAT THIS COVENANT IS ILLEGAL.  WE DO NOT
FIND IT NECESSARY TO PASS UPON THAT MATTER.  AS FAR AS SWIFT IS
CONCERNED, IT DOES NOT RECEIVE ANY DIRECT SHIPMENTS AT THE STOCK YARDS;
HENCE ANY DECISION AS TO LIVESTOCK SHIPMENTS TO SWIFT WOULD NOT AFFECT
THE STOCK YARDS.  IF OTHER PACKERS WOULD DEMAND INDUSTRIAL SIDING
DELIVERY IN THE EVENT SWIFT'S COMPLAINT WERE ALLOWED, UNQUESTIONABLY
THE EFFECT UPON THE STOCK YARDS WOULD BE VERY MATERIAL. 

IT IS TRUE THAT THE COMMISSION DID GIVE CONSIDERATION TO THE
PROBABILITY THAT IF SWIFT WERE SUCCESSFUL, OTHER PACKERS MIGHT DEMAND
THE SAME SERVICE.  THE LIKELIHOOD OF SUCH DEMAND SEEMED TO THE
COMMISSION, AS IT DOES TO US, OBVIOUS.  HOWEVER, IF THIS DEMAND BY
OTHER PACKERS, REASONABLY FORECAST BY THE COMMISSION, RECEIVED
CONSIDERATION IN REACHING THE CONCLUSIONS IN THIS CASE, IT WAS IN THE
LIGHT OF THE ADDITIONAL BURDEN ON THE OVERCROWDED CONDITION OF THE
AREA, THE COMPLEXITY OF THE OPERATIONS, AND THE NECESSITY FOR EXTRA
CARE IN THE HANDLING OF LIVESTOCK TO MOVE IT THROUGH THE BOTTLENECK AT
THE ASHLAND YARDS.  THE COMMISSION WAS NOT LED TO SUCH CONCLUSIONS BY
GIVING WEIGHT TO THIS COVENANT.  IT WAS WHOLLY UNNECESSARY THERETO. 
THE COVENANT'S IMPACT MAY BE CONSISTENT WITH SUCH CONSIDERATION, BUT IT
IS NOT SHOWN TO HAVE BEEN CONTROLLING IN ANY MANNER, OR RELIED UPON BY
THE COMMISSION. 

WE HAVE GIVEN CONSIDERATION TO OTHER ARGUMENTS PUT FORTH BY SWIFT AND
FIND THEM TO BE EQUALLY WITHOUT MERIT; THEY DO NOT REQUIRE DISCUSSION
IN THIS OPINION. 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

FN1  THE TERM "DIRECT SHIPMENTS" IS USED TO DENOTE SHIPMENTS
CONSIGNED DIRECTLY TO THE PACKER FOR SLAUGHTER, AS DISTINGUISHED FROM
THOSE SHIPMENTS CONSIGNED TO COMMISSION MEN FOR SALE IN THE PUBLIC
LIVESTOCK MARKET. 

FN2  49 U.S.C. SEC. 1 ET SEQ. SECTIONS 1(4) AND 1(5) REQUIRE THE
CARRIERS TO ESTABLISH JUST AND REASONABLE RATES; SEC. 3(1) PROHIBITS
THE CARRIERS FROM GIVING ANY UNDUE OR UNREASONABLE PREFERENCE TO ANY
PARTICULAR SHIPPER OR TO ANY PARTICULAR DESCRIPTION OF TRAFFIC. 

FN3  A LINE-HAUL CARRIER IS A COMMON CARRIER BY RAILROAD WHICH
TRANSPORTS LIVESTOCK AND OTHER FREIGHT IN INTERSTATE TRAFFIC, AS
DISTINGUISHED FROM A CARRIER SUCH AS JUNCTION, WHICH PERFORMS SERVICES
IN A LOCAL SWITCHING AREA. 

FN4  THE COST OF THIS TRUCKING TO SWIFT IS $50,000; IT IS MUCH LESS
THAN THE COST OF EITHER CONSIGNING THE LIVESTOCK TO THE STOCK YARDS AND
PAYING FOR THEIR YARDAGE FACILITIES OR PAYING THE SWITCHING CHARGES
HERE IN ISSUE AND HAVING THE LIVESTOCK DELIVERED TO THE PROPOSED
PLANT. 

FN5  DEAD FREIGHT IS COMPOSED OF COMMODITIES OTHER THAN LIVESTOCK. 

FN6  THIS WAS THE FIGURE AT THE TIME THIS PROCEEDING WAS HEARD BY THE
COMMISSION'S EXAMINER.  SUBSEQUENT AUTHORIZED INCREASES HAVE BROUGHT
THE CHARGE TO $39.24. 

FN7  DURING THE YEARS 1945, 1946 AND 1947, AN AVERAGE OF OVER 726,000
CARS A YEAR, LOADED AND EMPTY, WERE FUNNELLED THROUGH THE ASHLAND
YARDS. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

I AM NOT ABLE TO ACCEPT THE CONCLUSION OF THE MAJORITY THAT THE
INTERSTATE COMMERCE COMMISSION CAN ON THIS RECORD DENY THE APPELLANT'S
PRAYER FOR JOINT THROUGH RATES BETWEEN THE LINE-HAUL DEFENDANTS AND THE
TERMINAL DEFENDANT, THE CHICAGO JUNCTION RAILROAD.  IT IS ADMITTED HERE
THAT EVERY MANNER OF FREIGHT SAVE LIVESTOCK IS DELIVERED TO PRIVATE
INDUSTRIAL SIDINGS IN THE CHICAGO SWITCHING DISTRICT UNDER TARIFFS
EMBRACING JOINT THROUGH RATES.  WHEN THE COURT CONCLUDES THAT IT IS NOT
A "DISCRIMINATION AGAINST LIVESTOCK AS A COMMODITY TO IMPOSE A
SWITCHING CHARGE IN ADDITION TO THE LINE-HAUL RATE FOR DELIVERY OF
LIVESTOCK TO THE SAME POINT," IT VIOLATES THE STATUTORY REQUIREMENT OF
EQUALITY BETWEEN COMMODITIES.  TO ACCORD JOINT THROUGH RATES FOR
SWITCHING TO PRIVATE SIDETRACKS TO ALL COMMODITIES SAVE LIVESTOCK,
CONSTITUTES SUCH A PREFERENCE TO THOSE COMMODITIES OVER LIVESTOCK AS IS
PROSCRIBED BY 49 U.S.C. SEC. 3(1).  SEE NOTE 2 OF THE OPINION OF THE
COURT. 

IT IS THE LAW UNDER THE INTERSTATE COMMERCE ACT, AS SET OUT IN SEC.
3(1), THAT THE PUBLIC INTEREST IS BEST SERVED WHEN COMMON CARRIERS
ACCORD EQUALLY REASONABLE TREATMENT TO ALL THEIR PATRONS.  TO BE SURE,
THE LAW MIGHT BE THAT THE PUBLIC INTEREST IS BEST SERVED BY AVOIDING
CONGESTION IN ORDER TO PASS THE MAXIMUM AMOUNTS OF TRAFFIC THROUGH A
TRANSPORTATION BOTTLENECK.  BUT CONGRESS HAS DECIDED, BOTH FOR THE
COMMISSION AND THIS COURT, THAT THE COMMONWEAL SHALL BE SERVED BY
GUARANTEEING THAT THERE SHALL NOT BE DISCRIMINATION BETWEEN COMMODITIES
BY CARRIERS.  THE DIFFICULTIES OF CONGESTION, LIMITATIONS ON
FACILITIES, OR OTHER SHIPPING DISADVANTAGES ARE TO BE BORNE EQUALLY BY
ALL SHIPPERS, OTHERWISE THE INTERSTATE COMMERCE COMMISSION COULD
UNREASONABLY PREFER COMMODITIES THROUGH TRANSPORTATION ORDERS, AND IN
EFFECT WOULD BE AUTHORIZED TO PRESCRIBE THE MANNER IN WHICH GOODS SHALL
BE MARKETED IN THE PUBLIC INTEREST.  THE INADEQUACY OF TRANSPORTATION
FACILITIES MAY NOT, IN MY OPINION, BE CURED BY PENALIZING ONE COMMODITY
FOR THE BENEFIT OF THE OTHERS. 

WHEN, AS HERE, THE CARRIERS WHILE FIXING JOINT THROUGH RATES FOR
COMMODITIES IN GENERAL FAIL TO FURNISH THEM TO SHIPPERS OF LIVESTOCK,
ON APPLICATION THE COMMISSION SHOULD FIX SUCH RATE.  THAT RATE SHOULD
BE ESTABLISHED, 49 U.S.C. SEC. 15(3), IN THE SAME MANNER AS SIMILAR
RATES FOR OTHER COMMODITIES, OF COURSE WITH PROPER CONSIDERATION OF THE
COSTS OF HANDLING THE RESPECTIVE COMMODITIES.  I CONSIDER IT NO ANSWER
ON THIS RECORD TO SAY THAT THE SWITCHING CHARGE MAY BE NO MORE THAN THE
DIFFERENCE IN COST OF HANDLING DEAD FREIGHT AND LIVESTOCK.  THE SHIPPER
IS ENTITLED TO MEET THAT PROBLEM WHEN THE COMMISSION COMES TO DETERMINE
THE SWITCHING FACTOR IN THE JOINT THROUGH RATE.  JOINT THROUGH RATES
SHOULD BE ACCORDED TO LIVESTOCK SHIPMENTS ON SWIFT'S SIDING.  THEN, AND
NOT UNTIL THEN, IF THE RATE IS ATTACKED AS UNREASONABLE, MAY THE COURT
PROPERLY RELY ON THE FACT, IF SUPPORTED BY A FINDING OF THE INTERSTATE
COMMERCE COMMISSION, THAT THE "MORE COMPLEX NATURE OF THE SWITCHING
SERVICES REQUIRED BY LIVESTOCK AS COMPARED WITH DEAD FREIGHT" MAKES
JUSTIFIABLE THE DIFFERENCE IN THE RATES.  SEE MAJORITY OPINION, P.
383.  THE REASONABLENESS OF ANY COMMISSION INCREASE OF LIVESTOCK RATES
OVER OTHER COMMODITIES SHOULD DEPEND UPON EVIDENCE AND FINDINGS SHOWING
ITS NECESSITY BECAUSE OF THE EXTRA COST OF HANDLING WITHOUT REGARD TO
CONGESTION. 

I WOULD REVERSE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE CONFLICTING VIEWS OF MY BRETHREN IMPLY SERIOUS DIFFERENCES IN
INTERPRETING THE MEANING AND SCOPE OF THE REPORT OF THE INTERSTATE
COMMERCE COMMISSION.  PLAINLY, THEREFORE, THAT REPORT DOES NOT SPEAK
WITH THE NEEDED CLARITY.  THEREIN LIES MY DIFFICULTY WITH THE CASE.  IF
WHAT THE COMMISSION HAS DONE IS AMBIGUOUS, HOW CAN I DECIDE WHETHER IT
WAS AUTHORIZED TO DO WHAT IT DID?  DUBIETY IN THE ADMINISTRATIVE ORDER
PRECLUDES INTELLIGIBLE JUDICIAL REVIEW. 

AS THE COURT VIEWS THE MATTER, THE COMMISSION HAD BEFORE IT MERELY A
RATE-FIXING CONTROVERSY AND MORE SPECIFICALLY WHETHER RELEVANT
TRANSPORTATION CONSIDERATIONS JUSTIFIED IMPOSITION OF A LOCAL SWITCHING
CHARGE OF 4.8 CENTS PER 100 POUNDS* IN COMBINATION WITH THE LINE-HAUL
CHARGE AS A FAIR RATE FOR DELIVERY OF LIVESTOCK TO PRIVATE SIDINGS. 
AND THE RECORD, ACCORDING TO THE COURT, AMPLY SUSTAINS THE FINDING OF
THE COMMISSION THAT SUCH A COMBINATION DID NOT CONSTITUTE AN
UNREASONABLE RATE.  MR. JUSTICE REED AND MR. JUSTICE DOUGLAS INTERPRET
THE ORDER NOT TO BE A RATE-FIXING ORDER AT ALL, BUT, IN EFFECT, A
DETERMINATION BY THE INTERSTATE COMMERCE COMMISSION THAT LIVESTOCK,
UNLIKE ALL OTHER COMMODITIES, MAY BE EXCLUDED FROM PRIVATE SIDINGS IN
THE STOCKYARDS AREA, ALTHOUGH THIS IS DONE NOT IN TERMS BUT BY A
DESIGNEDLY PREFERENTIAL RATE.  THE DIFFICULTY IS, OF COURSE,
INTENSIFIED IN THAT THE RATE IS IN FACT PROHIBITIVE.    *THIS RATE, IN
EFFECT WHEN THE HEARING WAS HELD, WAS BASED ON A MINIMUM OF 60,000
POUNDS. 

WHERE, AS HERE, THIS COURT CAN DRAW ONLY CONFLICTING STRANDS OF
REASON FROM THE EXPLANATION GIVEN BY THE INTERSTATE COMMERCE
COMMISSION, WE HAVE NOT BEEN SPOKEN TO WITH SUFFICIENT CLEARNESS.  "WE
MUST KNOW 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, 511.  THEREFORE, I THINK THE DECISION BELOW
SHOULD BE REVERSED WITH DIRECTION TO REMAND THE CASE TO THE INTERSTATE
COMMERCE COMMISSION FOR APPROPRIATE ACTION. 
..END :






















BEAUHARNAIS V. ILLINOIS 343 U.S. 250 


NO. 118.  ARGUED NOVEMBER 28, 1951 - DECIDED APRIL 28, 1952 - 408 ILL.
512, 97 N.E.2D 343, AFFIRMED. 


OVER HIS CLAIM THAT THE STATUTE VIOLATED THE LIBERTY OF SPEECH AND OF
THE PRESS GUARANTEED AS AGAINST THE STATES BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT AND WAS VOID FOR VAGUENESS, PETITIONER WAS
CONVICTED IN A STATE COURT FOR DISTRIBUTING ON THE STREETS OF CHICAGO
ANTI-NEGRO LEAFLETS IN VIOLATION OF ILL. REV. STAT., 1949, C. 38, SEC.
471, WHICH MAKES IT A CRIME TO EXHIBIT IN ANY PUBLIC PLACE ANY
PUBLICATION WHICH "PORTRAYS DEPRAVITY, CRIMINALITY, UNCHASTITY, OR LACK
OF VIRTUE OF A CLASS OF CITIZENS, OF ANY RACE, COLOR, CREED OR
RELIGION" WHICH "EXPOSES THE CITIZENS OF ANY RACE, COLOR, CREED OR
RELIGION TO CONTEMPT, DERISION, OR OBLOQUY."  HELD: 

1.  AS CONSTRUED AND APPLIED IN THIS CASE, THE STATUTE DOES NOT
VIOLATE THE LIBERTY OF SPEECH AND OF THE PRESS GUARANTEED AS AGAINST
THE STATES BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP.
251-264. 

2.  AS CONSTRUED AND APPLIED IN THIS CASE, THE STATUTE IS NOT VOID
FOR VAGUENESS.  WINTERS V. NEW YORK, 333 U.S. 507; STROMBERG V.
CALIFORNIA, 283 U.S. 359; THORNHILL V. ALABAMA, 310 U.S. 88; AND
TERMINIELLO V. CHICAGO, 337 U.S. 1, DISTINGUISHED.  P. 264. 

3.  SINCE PETITIONER DID NOT, BY APPROPRIATE STEPS IN THE TRIAL
COURT, SEEK TO JUSTIFY HIS UTTERANCE AS "FAIR COMMENT" OR AS PRIVILEGED
AS A MEANS FOR REDRESSING GRIEVANCES, THOSE HYPOTHETICAL DEFENSES
CANNOT BE CONSIDERED BY THIS COURT.  PP. 264-265. 

4.  SINCE THE ILLINOIS SUPREME COURT CONSTRUED THIS STATUTE AS A FORM
OF CRIMINAL LIBEL LAW, AND TRUTH OF THE UTTERANCE IS NOT A DEFENSE TO A
CHARGE OF CRIMINAL LIBEL UNDER ILLINOIS LAW UNLESS THE PUBLICATION IS
ALSO MADE "WITH GOOD MOTIVES AND FOR JUSTIFIABLE ENDS," PETITIONER WAS
NOT DENIED DUE PROCESS BY THE TRIAL COURT'S REJECTION OF A PROFFER OF
PROOF WHICH DID NOT SATISFY THIS REQUIREMENT.  PP. 253-254, 265-266. 

5.  SINCE LIBELOUS UTTERANCES ARE NOT WITHIN THE AREA OF
CONSTITUTIONALLY PROTECTED SPEECH, IT IS NOT NECESSARY FOR THIS COURT
TO CONSIDER THE ISSUES RAISED BY THE DENIAL OF PETITIONER'S REQUEST
THAT THE JURY BE INSTRUCTED THAT, IN ORDER TO CONVICT, THEY MUST FIND
THAT THE PUBLICATION COMPLAINED OF WAS LIKELY TO PRODUCE A "CLEAR AND
PRESENT DANGER" OF A SUBSTANTIAL EVIL.  PP. 253, 266. 

BEAUHARNAIS V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

THE SUPREME COURT OF ILLINOIS SUSTAINED PETITIONER'S CONVICTION OF A
VIOLATION OF ILL. REV. STAT., 1949, C. 38 SEC. 471, OVER HIS OBJECTION
THAT THE STATUTE WAS INVALID UNDER THE FOURTEENTH AMENDMENT.  408 ILL.
512, 97 N.E.2D 343.  THIS COURT GRANTED CERTIORARI.  342 U.S. 809. 
AFFIRMED, P. 267. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED UPON INFORMATION IN THE MUNICIPAL COURT
OF CHICAGO OF VIOLATING SEC. 224A OF THE ILLINOIS CRIMINAL CODE, ILL.
REV. STAT., 1949, C. 38, DIV. 1, SEC. 471.  HE WAS FINED $200.  THE

"IT SHALL BE UNLAWFUL FOR ANY PERSON, FIRM OR CORPORATION TO
MANUFACTURE, SELL, OR OFFER FOR SALE, ADVERTISE OR PUBLISH, PRESENT OR
EXHIBIT IN ANY PUBLIC PLACE IN THIS STATE ANY LITHOGRAPH, MOVING
PICTURE, PLAY, DRAMA OR SKETCH, WHICH PUBLICATION OR EXHIBITION
PORTRAYS DEPRAVITY, CRIMINALITY, UNCHASTITY, OR LACK OF VIRTUE OF A
CLASS OF CITIZENS, OF ANY RACE, COLOR, CREED OR RELIGION WHICH SAID
PUBLICATION OR EXHIBITION EXPOSES THE CITIZENS OF ANY RACE, COLOR,
CREED OR RELIGION TO CONTEMPT, DERISION, OR OBLOQUY OR WHICH IS
PRODUCTIVE OF BREACH OF THE PEACE OR RIOTS  ...  ." 

BEAUHARNAIS CHALLENGED THE STATUTE AS VIOLATING THE LIBERTY OF SPEECH
AND OF THE PRESS GUARANTEED AS AGAINST THE STATES BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT, AND AS TOO VAGUE, UNDER THE
RESTRICTIONS IMPLICIT IN THE SAME CLAUSE, TO SUPPORT CONVICTION FOR
CRIME.  THE ILLINOIS COURTS REJECTED THESE CONTENTIONS AND SUSTAINED
DEFENDANT'S CONVICTION.  408 ILL. 512, 97 N.E.2D 343.  WE GRANTED
CERTIORARI IN VIEW OF THE SERIOUS QUESTIONS RAISED CONCERNING THE
LIMITATIONS IMPOSED BY THE FOURTEENTH AMENDMENT ON THE POWER OF A STATE
TO PUNISH UTTERANCES PROMOTING FRICTION AMONG RACIAL AND RELIGIOUS
GROUPS.  342 U.S. 809. 

THE INFORMATION, CAST GENERALLY IN THE TERMS OF THE STATUTE, CHARGED
THAT BEAUHARNAIS "DID UNLAWFULLY  ...  EXHIBIT IN PUBLIC PLACES
LITHOGRAPHS, WHICH PUBLICATIONS PORTRAY DEPRAVITY, CRIMINALITY,
UNCHASTITY OR LACK OF VIRTUE OF CITIZENS OF NEGRO RACE AND COLOR AND
WHICH EXPOSES CITIZENS OF ILLINOIS OF THE NEGRO RACE AND COLOR TO
CONTEMPT, DERISION, OR OBLOQUY  ...  ."  THE LITHOGRAPH COMPLAINED OF
WAS A LEAFLET SETTING FORTH A PETITION CALLING ON THE MAYOR AND CITY
COUNCIL OF CHICAGO "TO HALT THE FURTHER ENCROACHMENT, HARASSMENT AND
INVASION OF WHITE PEOPLE, THEIR PROPERTY, NEIGHBORHOODS AND PERSONS, BY
THE NEGRO  ...  ."  BELOW WAS A CALL FOR "ONE MILLION SELF RESPECTING
WHITE PEOPLE IN CHICAGO TO UNITE  ...  ."  WITH THE STATEMENT ADDED
THAT "IF PERSUASION AND THE NEED TO PREVENT THE WHITE RACE FROM
BECOMING MONGRELIZED BY THE NEGRO WILL NOT UNITE US, THEN THE
AGGRESSIONS  ...  RAPES, ROBBERIES, KNIVES, GUNS AND MARIJUANA OF THE
NEGRO, SURELY WILL."  THIS, WITH MORE LANGUAGE, SIMILAR IF NOT SO
VIOLENT, CONCLUDED WITH AN ATTACHED APPLICATION FOR MEMBERSHIP IN THE
WHITE CIRCLE LEAGUE OF AMERICA, INC. 

THE TESTIMONY AT THE TRIAL WAS SUBSTANTIALLY UNDISPUTED.  FROM IT THE
JURY COULD FIND THAT BEAUHARNAIS WAS PRESIDENT OF THE WHITE CIRCLE
LEAGUE; THAT, AT A MEETING ON JANUARY 6, 1950, HE PASSED OUT BUNDLES OF
THE LITHOGRAPHS IN QUESTION, TOGETHER WITH OTHER LITERATURE, TO
VOLUNTEERS FOR DISTRIBUTION ON DOWNTOWN CHICAGO STREET CORNERS THE
FOLLOWING DAY; THAT HE CAREFULLY ORGANIZED THAT DISTRIBUTION, GIVING
DETAILED INSTRUCTIONS FOR IT; AND THAT THE LEAFLETS WERE IN FACT
DISTRIBUTED ON JANUARY 7 IN ACCORDANCE WITH HIS PLAN AND INSTRUCTIONS. 
THE COURT, TOGETHER WITH OTHER CHARGES ON BURDEN OF PROOF AND THE LIKE,
TOLD THE JURY "IF YOU FIND  ...  THAT THE DEFENDANT, JOSEPH
BEAUHARNAIS, DID  ...  MANUFACTURE, SELL, OR OFFER FOR SALE, ADVERTISE
OR PUBLISH, PRESENT OR EXHIBIT IN ANY PUBLIC PLACE THE LITHOGRAPH  ...
THEY YOU ARE TO FIND THE DEFENDANT GUILTY  ...  ."  HE REFUSED TO
CHARGE THE JURY, AS REQUESTED BY THE DEFENDANT, THAT IN ORDER TO
CONVICT THEY MUST FIND "THAT THE ARTICLE COMPLAINED OF WAS LIKELY TO
PRODUCE A CLEAR AND PRESENT DANGER OF A SERIOUS SUBSTANTIVE EVIL THAT
RISES FAR ABOVE PUBLIC INCONVENIENCE, ANNOYANCE OR UNREST."  UPON THIS
EVIDENCE AND THESE INSTRUCTIONS, THE JURY BROUGHT IN THE CONVICTION
HERE FOR REVIEW. 

THE STATUTE BEFORE US IS NOT A CATCHALL ENACTMENT LEFT AT LARGE BY
THE STATE COURT WHICH APPLIED IT.  CF. THORNHILL V. ALABAMA, 310 U.S.
88; CANTWELL V. CONNECTICUT, 310 U.S. 296, 307.  IT IS A LAW
SPECIFICALLY DIRECTED AT A DEFINED EVIL, ITS LANGUAGE DRAWING FROM
HISTORY AND PRACTICE IN ILLINOIS AND IN MORE THAN A SCORE OF OTHER
JURISDICTIONS A MEANING CONFIRMED BY THE SUPREME COURT OF THAT STATE IN
UPHOLDING THIS CONVICTION.  WE DO NOT, THEREFORE, PARSE THE STATUTE AS
GRAMMARIANS OR TREAT IT AS AN ABSTRACT EXERCISE IN LEXICOGRAPHY.  WE
READ IT IN THE ANIMATING CONTEXT OF WELL-DEFINED USAGE, NASH V. UNITED
STATES, 229 U.S. 373, AND STATE COURT CONSTRUCTION WHICH DETERMINES ITS
MEANING FOR US.  COX V. NEW HAMPSHIRE, 312 U.S. 569; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568. 

THE ILLINOIS SUPREME COURT TELLS US THAT SEC. 224A "IS A FORM OF
CRIMINAL LIBEL LAW."  408 ILL. 512, 517, 97 N.E.2D 343, 346.  THE
DEFENDANT, THE TRIAL COURT AND THE SUPREME COURT CONSISTENTLY TREATED
IT AS SUCH.  THE DEFENDANT OFFERED EVIDENCE TENDING TO PROVE THE TRUTH
OF PARTS OF THE UTTERANCE, AND THE COURTS BELOW CONSIDERED AND DISPOSED
OF THIS OFFER IN TERMS OF ORDINARY CRIMINAL LIBEL PRECEDENTS.  (FN1)
ILLINOIS CONSTITUTION, ART. II, SEC. 4, "IN ALL TRIALS FOR LIBEL, BOTH
CIVIL AND CRIMINAL, THE TRUTH, WHEN PUBLISHED WITH GOOD MOTIVES AND FOR
JUSTIFIABLE ENDS, SHALL BE A SUFFICIENT DEFENSE."  SEE ALSO ILL. REV.
STAT., 1949, C. 38, SEC. 404.  SIMILARLY, THE ACTION OF THE TRIAL COURT
IN DECIDING AS A MATTER OF LAW THE LIBELOUS CHARACTER OF THE UTTERANCE,
LEAVING TO THE JURY ONLY THE QUESTION OF PUBLICATION, FOLLOWS THE
SETTLED RULE IN PROSECUTIONS FOR LIBEL IN ILLINOIS AND OTHER STATES. 
(FN2) MOREOVER, THE SUPREME COURT'S CHARACTERIZATION OF THE WORDS
PROHIBITED BY THE STATUTE AS THOSE "LIABLE TO CAUSE VIOLENCE AND
DISORDER" PARAPHRASES THE TRADITIONAL JUSTIFICATION FOR PUNISHING
LIBELS CRIMINALLY, NAMELY THEIR "TENDENCY TO CAUSE BREACH OF THE
PEACE."  (FN3) 

LIBEL OF AN INDIVIDUAL WAS A COMMON-LAW CRIME, AND THUS CRIMINAL IN
THE COLONIES.  INDEED, AT COMMON LAW, TRUTH OR GOOD MOTIVES WAS NO
DEFENSE.  IN THE FIRST DECADES AFTER THE ADOPTION OF THE CONSTITUTION,
THIS WAS CHANGED BY JUDICIAL DECISION, STATUTE OR CONSTITUTION IN MOST
STATES, BUT NOWHERE WAS THERE ANY SUGGESTION THAT THE CRIME OF LIBEL BE
ABOLISHED.  (FN4)  TODAY, EVERY AMERICAN JURISDICTION - THE FORTY-EIGHT
STATES, THE DISTRICT OF COLUMBIA, ALASKA, HAWAII AND PUERTO RICO -
PUNISH LIBELS DIRECTED AT INDIVIDUALS.  (FN5)  "THERE ARE CERTAIN WELL
DEFINED AND NARROWLY LIMITED CLASSES OF SPEECH, THE PREVENTION AND
PUNISHMENT OF WHICH HAVE NEVER BEEN THOUGHT TO RAISE ANY CONSTITUTIONAL
PROBLEM.  THESE INCLUDE THE LEWD AND OBSCENE, THE PROFANE, THE
LIBELOUS, AND THE INSULTING OR 'FIGHTING' WORDS - THOSE WHICH BY THEIR
VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE AN IMMEDIATE BREACH OF
THE PEACE.  IT HAS BEEN WELL OBSERVED THAT SUCH UTTERANCES ARE NO
ESSENTIAL PART OF ANY EXPOSITION OF IDEAS, AND ARE OF SUCH SLIGHT
SOCIAL VALUE AS A STEP TO TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED
FROM THEM IS CLEARLY OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND
MORALITY.  'RESORT TO EPITHETS OR PERSONAL ABUSE IS NOT IN ANY PROPER
SENSE COMMUNICATION OF INFORMATION OR OPINION SAFEGUARDED BY THE
CONSTITUTION, AND ITS PUNISHMENT AS A CRIMINAL ACT WOULD RAISE NO
QUESTION UNDER THAT INSTRUMENT.'  CANTWELL V. CONNECTICUT, 310 U.S.
296, 309-310."  SUCH WERE THE VIEWS OF A UNANIMOUS COURT IN CHAPLINSKY
V. NEW HAMPSHIRE, SUPRA, AT 571-572.  (FN6) 

NO ONE WILL GAINSAY THAT IT IS LIBELOUS FALSELY TO CHARGE ANOTHER
WITH BEING A RAPIST, ROBBER, CARRIER OF KNIVES AND GUNS, AND USER OF
MARIJUANA.  THE PRECISE QUESTION BEFORE US, THEN, IS WHETHER THE
PROTECTION OF "LIBERTY IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT PREVENTS A STATE FROM PUNISHING SUCH LIBELS - AS CRIMINAL
LIBEL HAS BEEN DEFINED, LIMITED AND CONSTITUTIONALLY RECOGNIZED TIME
OUT OF MIND - DIRECTED AT DESIGNATED COLLECTIVITIES AND FLAGRANTLY
DISSEMINATED.  THERE IS EVEN AUTHORITY, HOWEVER DUBIOUS, THAT SUCH
UTTERANCES WERE ALSO CRIMES AT COMMON LAW.  (FN7)  IT IS CERTAINLY
CLEAR THAT SOME AMERICAN JURISDICTIONS HAVE SANCTIONED THEIR PUNISHMENT
UNDER ORDINARY CRIMINAL LIBEL STATUTES.  (FN8)  WE CANNOT SAY, HOWEVER,
THAT THE QUESTION IS CONCLUDED BY HISTORY AND PRACTICE.  BUT IF AN
UTTERANCE DIRECTED AT AN INDIVIDUAL MAY BE THE OBJECT OF CRIMINAL
SANCTIONS, WE CANNOT DENY TO A STATE POWER TO PUNISH THE SAME UTTERANCE
DIRECTED AT A DEFINED GROUP, UNLESS WE CAN SAY THAT THIS IS A WILFUL
AND PURPOSELESS RESTRICTION UNRELATED TO THE PEACE AND WELL-BEING OF
THE STATE. 

ILLINOIS DID NOT HAVE TO LOOK BEYOND HER OWN BORDERS OR AWAIT THE
TRAGIC EXPERIENCE OF THE LAST THREE DECADES (FN9) TO CONCLUDE THAT
WILFUL PURVEYORS OF FALSEHOOD CONCERNING RACIAL AND RELIGIOUS GROUPS
PROMOTE STRIFE AND TEND POWERFULLY TO OBSTRUCT THE MANIFOLD ADJUSTMENTS
REQUIRED FOR FREE, ORDERED LIFE IN A METROPOLITAN, POLYGLOT COMMUNITY. 
FROM THE MURDER OF THE ABOLITIONIST LOVEJOY IN 1837 TO THE CICERO RIOTS
OF 1951, ILLINOIS HAS BEEN THE SCENE OF EXACERBATED TENSION BETWEEN
RACES, OFTEN FLARING INTO VIOLENCE AND DESTRUCTION.  (FN10)  IN MANY OF
THESE OUTBREAKS, UTTERANCES OF THE CHARACTER HERE IN QUESTION, SO THE
ILLINOIS LEGISLATURE COULD CONCLUDE, PLAYED A SIGNIFICANT PART.  (FN11)
THE LAW WAS PASSED ON JUNE 29, 1917, AT A TIME WHEN THE STATE WAS
STRUGGLING TO ASSIMILATE VAST NUMBERS OF NEW INHABITANTS, AS YET
CONCENTRATED IN DISCRETE RACIAL OR NATIONAL OR RELIGIOUS GROUPS -
FOREIGN-BORN BROUGHT TO IT BY THE CREST OF THE GREAT WAVE OF
IMMIGRATION, AND NEGROES ATTRACTED BY JOBS IN WAR PLANTS AND THE
ALLUREMENTS OF NORTHERN CLAIMS.  (FN12)  NINE YEARS EARLIER, IN THE
VERY CITY WHERE THE LEGISLATURE SAT, WHAT IS SAID TO BE THE FIRST
NORTHERN RACE RIOT HAD COST THE LIVES OF SIX PEOPLE, LEFT HUNDREDS OF
NEGROES HOMELESS AND SHOCKED CITIZENS INTO ACTION FAR BEYOND THE
BORDERS OF THE STATE.  (FN13)  LESS THAN A MONTH BEFORE THE BILL WAS
ENACTED, EAST ST. LOUIS HAD SEEN A DAY'S RIOTING, PRECLUDE ON AN
OUTBREAK, ONLY FOUR DAYS AFTER THE BILL BECAME LAW, SO BLOODY THAT IT
LED TO CONGRESSIONAL INVESTIGATION.  (FN14)  A SERIES OF BOMBINGS HAD
BEGUN WHICH WAS TO CULMINATE TWO YEARS LATER IN THE AWFUL RACE RIOT
WHICH HELD CHICAGO IN ITS GRIP FOR SEVEN DAYS IN THE SUMMER OF 1919. 
(FN15)  NOR HAS TENSION AND VIOLENCE BETWEEN THE GROUPS DEFINED IN THE
STATUTE BEEN LIMITED IN ILLINOIS TO CLASHES BETWEEN WHITES AND
NEGROES. 

IN THE FACE OF THIS HISTORY AND ITS FREQUENT OBLIGATO OF EXTREME
RACIAL AND RELIGIOUS PROPAGANDA, WE WOULD DENY EXPERIENCE TO SAY THAT
THE ILLINOIS LEGISLATURE WAS WITHOUT REASON IN SEEKING WAYS TO CURB
FALSE OR MALICIOUS DEFAMATION OF RACIAL AND RELIGIOUS GROUPS, MADE IN
PUBLIC PLACES AND BY MEANS CALCULATED TO HAVE A POWERFUL EMOTIONAL
IMPACT ON THOSE TO WHOM IT WAS PRESENTED.  "THERE ARE LIMITS TO THE
EXERCISE OF THESE LIBERTIES (OF SPEECH AND OF THE PRESS).  THE DANGER
IN THESE TIMES FROM THE COERCIVE ACTIVITIES OF THOSE WHO IN THE
DELUSION OF RACIAL OR RELIGIOUS CONCEIT WOULD INCITE VIOLENCE AND
BREACHES OF THE PEACE IN ORDER TO DEPRIVE OTHERS OF THEIR EQUAL RIGHT
TO THE EXERCISE OF THEIR LIBERTIES, IS EMPHASIZED BY EVENTS FAMILIAR TO
ALL.  THESE AND OTHER TRANSGRESSIONS OF THOSE LIMITS THE STATES
APPROPRIATELY MAY PUNISH."  (FN16)  THIS WAS THE CONCLUSION, AGAIN OF A
UNANIMOUS COURT, IN 1940.  CANTWELL V. CONNECTICUT, SUPRA, AT 310. 

IT MAY BE ARGUED, AND WEIGHTILY, THAT THIS LEGISLATION WILL NOT HELP
MATTERS; THAT TENSION AND ON OCCASION VIOLENCE BETWEEN RACIAL AND
RELIGIOUS GROUPS MUST BE TRACED TO CAUSES MORE DEEPLY EMBEDDED IN OUR
SOCIETY THAN THE RANTINGS OF MODERN KNOW-NOTHINGS.  (FN17)  ONLY THOSE
LACKING RESPONSIBLE HUMILITY WILL HAVE A CONFIDENT SOLUTION FOR
PROBLEMS AS INTRACTABLE AS THE FRICTIONS ATTRIBUTABLE TO DIFFERENCES OF
RACE, COLOR OR RELIGION.  THIS BEING SO, IT WOULD BE OUT OF BOUNDS FOR
THE JUDICIARY TO DENY THE LEGISLATURE A CHOICE OF POLICY, PROVIDED IT
IS NOT UNRELATED TO THE PROBLEM AND NOT FORBIDDEN BY SOME EXPLICIT
LIMITATION ON THE STATE'S POWER.  THAT THE LEGISLATIVE REMEDY MIGHT NOT
IN PRACTICE MITIGATE THE EVIL, OR MIGHT ITSELF RAISE NEW PROBLEMS,
WOULD ONLY MANIFEST ONCE MORE THE PARADOX OF REFORM.  IT IS THE PRICE
TO BE PAID FOR THE TRIAL-AND-ERROR INHERENT IN LEGISLATIVE EFFORTS TO
DEAL WITH OBSTINATE SOCIAL ISSUES.  "THE SCIENCE OF GOVERNMENT IS THE
MOST ABSTRUSE OF ALL SCIENCES; IF, INDEED, THAT CAN BE CALLED A SCIENCE
WHICH HAS BUT FEW FIXED PRINCIPLES, AND PRACTICALLY CONSISTS IN LITTLE
MORE THAN THE EXERCISE OF A SOUND DISCRETION, APPLIED TO THE EXIGENCIES
OF THE STATE AS THEY ARISE.  IT IS THE SCIENCE OF EXPERIMENT." 
ANDERSON V. DUNN, 6 WHEAT.  204, 226.  CERTAINLY THE DUE PROCESS CLAUSE
DOES NOT REQUIRE THE LEGISLATURE TO BE IN THE VANGUARD OF SCIENCE -
ESPECIALLY SCIENCES AS YOUNG AS HUMAN ECOLOGY AND CULTURAL
ANTHROPOLOGY.  SEE TIGNER V. TEXAS, 310 U.S. 141, 148.    LONG AGO THIS
COURT RECOGNIZED THAT THE ECONOMIC RIGHTS OF AN INDIVIDUAL MAY DEPEND
FOR THE EFFECTIVENESS OF THEIR ENFORCEMENT ON RIGHTS IN THE GROUP, EVEN
THOUGH NOT FORMALLY CORPORATE, TO WHICH HE BELONGS.  AMERICAN
FOUNDARIES V. TRI-CITY COUNCIL, 257 U.S. 184.  SUCH GROUP-PROTECTION ON
BEHALF OF THE INDIVIDUAL MAY, FOR ALL WE KNOW, BE A NEED NOT CONFINED
TO THE PART THAT A TRADE UNION PLAYS IN EFFECTUATING RIGHTS ABSTRACTLY
RECOGNIZED AS BELONGING TO ITS MEMBERS.  IT IS NOT WITHIN OUR
COMPETENCE TO CONFIRM OR DENY CLAIMS OF SOCIAL SCIENTISTS AS TO THE
DEPENDENCE OF THE INDIVIDUAL ON THE POSITION OF HIS RACIAL OR RELIGIOUS
GROUP IN THE COMMUNITY.  IT WOULD, HOWEVER, BE ARRANT DOGMATISM, QUITE
OUTSIDE THE SCOPE OF OUR AUTHORITY IN PASSING ON THE POWERS OF A STATE,
FOR US TO DENY THAT THE ILLINOIS LEGISLATURE MAY WARRANTABLY BELIEVE
THAT A MAN'S JOB AND HIS EDUCATIONAL OPPORTUNITIES AND THE DIGNITY
ACCORDED HIM MAY DEPEND AS MUCH ON THE REPUTATION OF THE RACIAL AND
RELIGIOUS GROUP TO WHICH HE WILLY-NILLY BELONGS, AS ON HIS OWN MERITS. 
THIS BEING SO, WE ARE PRECLUDED FROM SAYING THAT SPEECH CONCEDEDLY
PUNISHABLE WHEN IMMEDIATELY DIRECTED AT INDIVIDUALS CANNOT BE OUTLAWED
IF DIRECTED AT GROUPS WITH WHOSE POSITION AND ESTEEM IN SOCIETY THE
AFFILIATED INDIVIDUAL MAY BE INEXTRICABLY INVOLVED. 

WE ARE WARNED THAT THE CHOICE OPEN TO THE ILLINOIS LEGISLATURE HERE
MAY BE ABUSED, THAT THE LAW MAY BE DISCRIMINATORILY ENFORCED;
PROHIBITING LIBEL OF A CREED OR OF A RACIAL GROUP, WE ARE TOLD, IS BUT
A STEP FROM PROHIBITING LIBEL OF A POLITICAL PARTY.  (FN18)  EVERY
POWER MAY BE ABUSED, BUT THE POSSIBILITY OF ABUSE IS A POOR REASON FOR
DENYING ILLINOIS THE POWER TO ADOPT MEASURES AGAINST CRIMINAL LIBELS
SANCTIONED BY CENTURIES OF ANGLO-AMERICAN LAW.  "WHILE THIS COURT SITS"
IT RETAINS AND EXERCISES AUTHORITY TO NULLIFY ACTION WHICH ENCROACHES
ON FREEDOM OF UTTERANCE UNDER THE GUISE OF PUNISHING LIBEL.  OF COURSE
DISCUSSION CANNOT BE DENIED AND THE RIGHT, AS WELL AS THE DUTY, OF
CRITICISM MUST NOT BE STIFLED. 

THE SCOPE OF THE STATUTE BEFORE US, AS CONSTRUED BY THE ILLINOIS
COURT, DISPOSES OF THE CONTENTION THAT THE CONDUCT PROHIBITED BY THE
LAW IS SO ILL-DEFINED THAT JUDGES AND JURIES IN APPLYING THE STATUTE
AND MEN IN ACTING CANNOT DRAW FROM IT ADEQUATE STANDARDS TO GUIDE
THEM.  THE CLARIFYING CONSTRUCTION AND FIXED USAGE WHICH GOVERN THE
MEANING OF THE ENACTMENT BEFORE US WERE NOT PRESENT, SO THE COURT
FOUND, IN THE NEW YORK LAW HELD INVALID IN WINTERS V. NEW YORK, 333
U.S. 507.  NOR, THUS CONSTRUED AND LIMITED, IS THE ACT SO BROAD THAT
THE GENERAL VERDICT OF GUILTY ON AN INDICTMENT DRAWN IN THE STATUTORY
LANGUAGE MIGHT HAVE BEEN PREDICATED ON CONSTITUTIONALLY PROTECTED
CONDUCT.  ON THIS SCORE, THE CONVICTION HERE REVIEWED DIFFERS FROM
THOSE UPSET IN STROMBERG V. CALIFORNIA, 283 U.S. 359, THORNHILL V.
ALABAMA, 310 U.S. 88, AND TERMINIELLO V. CHICAGO, 337 U.S. 1.  EVEN THE
LATTER CASE DID NOT HOLD THAT THE UNCONSTITUTIONALITY OF A STATUTE IS
ESTABLISHED BECAUSE THE SPEECH PROHIBITED BY IT RAISES A RUCKUS. 

IT IS SUGGESTED THAT WHILE IT WAS CLEARLY WITHIN THE CONSTITUTIONAL
POWER OF ILLINOIS TO PUNISH THIS UTTERANCE IF THE PROCEEDING WERE
PROPERLY SAFEGUARDED, IN THIS PARTICULAR CASE ILLINOIS DENIED THE
DEFENDANT RIGHTS WHICH THE DUE PROCESS CLAUSE COMMANDS.  SPECIFICALLY,
IT IS ARGUED THAT THE DEFENDANT WAS NOT PERMITTED TO RAISE AT THE TRIAL
DEFENSES CONSTITUTIONALLY GUARANTEED IN A CRIMINAL LIBEL PROSECUTION:
(1) THE DEFENSE OF TRUTH; (2) JUSTIFICATION OF THE UTTERANCE AS "FAIR
COMMENT"; AND (3) ITS PRIVILEGE AS A MEANS FOR REDRESSING GRIEVANCES. 

NEITHER BY PROFFER OF EVIDENCE, REQUESTS FOR INSTRUCTIONS, NOR MOTION
BEFORE OR AFTER VERDICT DID THE DEFENDANT SEEK TO JUSTIFY HIS UTTERANCE
AS "FAIR COMMENT" OR AS PRIVILEGED.  NOR HAS THE DEFENDANT URGED AS A
GROUND FOR REVERSING HIS CONVICTION IN THIS COURT THAT HIS OPPORTUNITY
TO MAKE THOSE DEFENSES WAS DENIED BELOW.  AND SO, WHETHER A PROSECUTION
FOR LIBEL OF A RACIAL OR RELIGIOUS GROUP IS UNCONSTITUTIONALLY INVALID
WHERE THE STATE DID DENY THE DEFENDANT SUCH OPPORTUNITIES IS NOT BEFORE
US.  (FN19)  CERTAINLY THE STATE MAY CAST THE BURDEN OF JUSTIFYING WHAT
IS PATENT DEFAMATION UPON THE DEFAMER.  THE BENEFITS OF HYPOTHETICAL
DEFENSES, NEVER RAISED BELOW OR PRESSED UPON US, ARE NOT TO BE INVOKED
IN THE ABSTRACT. 

AS TO THE DEFENSE OF TRUTH, ILLINOIS IN COMMON WITH MANY STATES
REQUIRES A SHOWING NOT ONLY THAT THE UTTERANCE STATE THE FACTS, BUT
ALSO THAT THE PUBLICATION BE MADE "WITH GOOD MOTIVES AND FOR
JUSTIFIABLE ENDS."  ILL. CONST., ART. II, SEC. 4.  (FN20)  BOTH
ELEMENTS ARE NECESSARY IF THE DEFENSE IS TO PREVAIL.  WHAT HAS BEEN
CALLED "THE COMMON SENSE OF AMERICAN CRIMINAL LAW," AS FORMULATED, WITH
REGARD TO NECESSARY SAFEGUARDS IN CRIMINAL LIBEL PROSECUTIONS, IN THE
NEW YORK CONSTITUTION OF 1821, ART. VII, SEC. 8, HAS BEEN ADOPTED IN
TERMS BY ILLINOIS.  THE TEACHING OF A CENTURY AND HALF OF CRIMINAL
LIBEL PROSECUTIONS IN THIS COUNTRY WOULD GO BY THE BOARD IF WE WERE TO
HOLD THAT ILLINOIS WAS NOT WITHIN HER RIGHTS IN MAKING THIS COMBINED
REQUIREMENT.  ASSUMING THAT DEFENDANT'S OFFER OF PROOF DIRECTED TO A
PART OF THE DEFENSE WAS ADEQUATE, (FN21) IT DID NOT SATISFY THE ENTIRE
REQUIREMENT WHICH ILLINOIS COULD EXACT.  (FN22) 

LIBELOUS UTTERANCES NOT BEING WITHIN THE AREA OF CONSTITUTIONALLY
PROTECTED SPEECH, IT IS UNNECESSARY, EITHER FOR US OR FOR THE STATE
COURTS, TO CONSIDER THE ISSUES BEHIND THE PHRASE "CLEAR AND PRESENT
DANGER."  CERTAINLY NO ONE WOULD CONTEND THAT OBSCENE SPEECH, FOR
EXAMPLE, MAY BE PUNISHED ONLY UPON A SHOWING OF SUCH CIRCUMSTANCES. 
LIBEL, AS WE HAVE SEEN, IS IN THE SAME CLASS. 

WE FIND NO WARRANT IN THE CONSTITUTION FOR DENYING TO ILLINOIS THE
POWER TO PASS THE LAW HERE UNDER ATTACK.  (FN23)  BUT IT BEARS
REPEATING - ALTHOUGH IT SHOULD NOT - THAT OUR FINDING THAT THE LAW IS
NOT CONSTITUTIONALLY OBJECTIONABLE CARRIES NO IMPLICATION OF APPROVAL
OF THE WISDOM OF THE LEGISLATION OR OF ITS EFFICACY.  THESE QUESTIONS
MAY RAISE DOUBTS IN OUR MINDS AS WELL AS IN OTHERS.  IT IS NOT FOR US,
HOWEVER, TO MAKE THE LEGISLATIVE JUDGMENT.  WE ARE NOT AT LIBERTY TO
ERECT THOSE DOUBTS INTO FUNDAMENTAL LAW.  AFFIRMED. 

FN1  408 ILL. 512, 518, 97 N.E.2D 343, 346-347.  ILLINOIS LAW
REQUIRES THAT FOR THE DEFENSE TO PREVAIL, THE TRUTH OF ALL FACTS IN THE
UTTERANCE MUST BE SHOWN TOGETHER WITH GOOD MOTIVE FOR PUBLICATION. 
PEOPLE V. STRAUCH, 247 ILL. 220, 93 N.E. 126; PEOPLE V. FULLER, 238
ILL. 116, 87 N.E. 336; CF. OGREN V. ROCKFORD STAR PRINTING CO., 288
ILL. 405, 123 N.E. 587. 

FN2  SEE, E.G., STATE V. STERMAN, 199 IOWA 569, 202 N.W. 222; STATE
V. HOWARD, 169 N.C. 312, 313, 84 S.E. 807-808; CF. OGREN V. ROCKFORD
STAR PRINTING CO., SUPRA. 

FN3  SEE, E.G., PEOPLE V. SPIELMAN, 318 ILL. 482, 489, 149 N.E. 466,
469; ODGERS, LIBEL AND SLANDER (6TH ED.), 368; 19 A.L.R. 1470.  SOME
STATES HOLD, HOWEVER, THAT INJURY TO REPUTATION, AS IN CIVIL LIBEL, AND
NOT TENDENCY TO BREACH OF THE PEACE, IS THE GRAVAMEN OF THE OFFENSE. 
SEE TANENHAUS, GROUP LIBEL, 35 CORNELL L.Q. 261, 273 AND N. 67. 

FN4  FOR A BRIEF ACCOUNT OF THIS DEVELOPMENT SEE WARREN, HISTORY OF
THE AMERICAN BAR, 236-239.  SEE ALSO CORRESPONDENCE BETWEEN CHIEF
JUSTICE CUSHING OF MASSACHUSETTS AND JOHN ADAMS, PUBLISHED IN 27 MASS.
L.Q. 11-16 (OCT. 1942).  JEFFERSON EXPLAINED IN A LETTER TO ABIGAIL
ADAMS, DATED SEPTEMBER 11, 1804, THAT TO STRIKE DOWN THE ALIEN AND
SEDITION ACT WOULD NOT "REMOVE ALL RESTRAINT FROM THE OVERWHELMING
TORRENT OF SLANDER WHICH IS CONFOUNDING ALL VICE AND VIRTUE, ALL TRUTH
AND FALSEHOOD IN THE U.S. THE POWER TO DO THAT IS FULLY POSSESSED BY
THE SEVERAL STATE LEGISLATURES."  SEE DENNIS V. UNITED STATES, 341 U.S.
494, 522, N. 4.  SEE MILLER, CRISIS IN FREEDOM, 168-169, 231-232.  SEE
ALSO PROVISIONS AS TO CRIMINAL LIBEL IN EDWARD LIVINGSTON'S FAMOUS
DRAFT SYSTEM OF PENAL LAW FOR LOUISIANA, 2 WORKS OF EDWARD LIVINGSTON
100-108. 

FN5  IN EIGHT STATES THE OFFENSE IS PUNISHED AS AT COMMON LAW,
WITHOUT LEGISLATIVE ENACTMENT.  STATE V. ROBERTS, 2 MARV.  (DEL.)  450,
43 A. 252; COLE V. COMMONWEALTH, 222 KY. 350, 300 S.W. 907; ROBINSON V.
STATE, 108 MD. 644, 71 A. 433; COMMONWEALTH V. CANTER, 269 MASS. 359,
168 N.E. 790; STATE V. BURNHAM, 9 N.H. 34; STATE V. SPEAR, 13 R.I. 324;
STATE V. SUTTON, 74 VT. 12, 52 A. 116; STATE V. PAYNE, 87 W. VA. 102,
104 S.E. 288.  TWELVE OTHER JURISDICTIONS MAKE "LIBEL" A CRIME BY
STATUTE, WITHOUT DEFINING THE TERM.  ALA. CODE, 1940, TIT. 14, SEC.
347; ALASKA COMP. LAWS ANN., 1949, SEC. 65-4-28; D.C. CODE, 1940, SEC.
22-2301; FLA. STAT. ANN., 1944, SEC. 836.01; BURNS IND. STAT., 1933,
SEC.  10-3201; MISS.  CODE, 1942, SEC. 2268; NEB. REV. STAT., 1943,
SEC. 28-440; N.J. STAT. ANN., 1939, SEC. 2:146-1; N.C. GEN. STAT.,
1943, SEC. 14-47; PAGE'S OHIO GEN. CODE, 1939, SEC. 13383; WIS. STAT.,
1949, SEC. 348.41; WYO. COMP. STAT., 1945, SEC. 9-1601.  THUS, TWENTY
AMERICAN JURISDICTIONS PUNISH "LIBEL" AS DEFINED BY THE CASE-BY-CASE
COMMON-LAW DEVELOPMENT. 

THE REMAINING JURISDICTIONS HAVE SOUGHT TO CAST THE COMMON-LAW
DEFINITION IN A STATUTORY FORM OR WORDS.  TWO FORMULAS HAVE BEEN
POPULAR.  ELEVEN JURISDICTIONS, ILLINOIS AMONG THEM, HAVE ACCEPTED WITH
MINOR VARIATIONS THE FOLLOWING: 

"A LIBEL IS A MALICIOUS DEFAMATION, EXPRESSED EITHER BY PRINTING, OR
BY SIGNS OR PICTURES, OR THE LIKE, TENDING TO BLACKEN THE MEMORY OF ONE
WHO IS DEAD, OR TO IMPEACH THE HONESTY, INTEGRITY, VIRTUE OR REPUTATION
OR PUBLISH THE NATURAL DEFECTS OF ONE WHO IS ALIVE, AND THEREBY TO
EXPOSE HIM TO PUBLIC HATRED, CONTEMPT, RIDICULE, OR FINANCIAL INJURY." 
SMITH-HURD ILL. ANN. STAT., 1936, C. 38, SEC. 402.  ARIZ. CODE ANN.,
1939, SEC. 43.3501; ARK. STAT., 1947, SEC. 41-2401; DEERING'S CAL.
PENAL CODE, 1949, SEC. 248; COLO. STAT. ANN., 1935, C. 48, SEC. 199;
GA. CODE ANN., 1936, SEC. 26-2101; IDAHO CODE, 1947, SEC. 18-4801;
SMITH-HURD ILL. ANN. STAT., 1936, C. 38, SEC. 402; MONT.  REV. CODES,
1947, SEC. 94-2801; NEV. COMP. LAWS, 1929, SEC. 10110; P.R. CODIGO
PENAL, 1937, SEC. 243; UTAH CODE ANN., 1943, SEC. 103-38-1; CF. VIRGIN
ISLANDS CODE, 1921, TIT. IV, C. 5, SEC. 36. 

THE OTHER VERSION, AGAIN WITH MINOR VARIATIONS, HAS FOUND FAVOR IN
TWELVE JURISDICTIONS. 

"A LIBEL IS A MALICIOUS DEFAMATION OF A PERSON, MADE PUBLIC BY ANY
PRINTING, WRITING, SIGN, PICTURE, REPRESENTATION OR EFFIGY, TENDING TO
PROVOKE HIM TO WRATH OR EXPOSE HIM TO PUBLIC HATRED, CONTEMPT OR
RIDICULE, OR TO DEPRIVE HIM OF THE BENEFITS OF PUBLIC CONFIDENCE AND
SOCIAL INTERCOURSE; OR ANY MALICIOUS DEFAMATION, MADE PUBLIC AS
AFORESAID, DESIGNED TO BLACKEN AND VILIFY THE MEMORY OF ONE WHO IS
DEAD, AND TENDING TO SCANDALIZE OR PROVOKE HIS SURVIVING RELATIVES OR
FRIENDS." 

IOWA CODE ANN., 1949, SEC. 737.1; KAN. GEN. STAT., 1935, SEC. 21
2401; DART'S LA. CRIM. CODE, 1943, ART. 740-47; ME. REV. STAT., 1944,
C. 117, SEC. 30; MINN. STAT., 1949, SEC. 619.51; MO. REV. STAT., 1949,
SEC. 559.410; MCKINNEY'S N.Y. LAWS, PENAL CODE, SEC. 1340; N.D. REV.
CODE, 1943, SEC. 12-2801; OKLA. STAT. ANN., 1936, TIT. 21, SEC. 771;
PURDON'S PA. STAT. ANN., 1945, TIT. 18, SEC. 4412; WILLIAMS TENN. CODE,
1934, SECS. 11021, 11022; REMINGTON'S WASH. REV. STAT., 1932, SEC.
2424. 

THE REMAINING NINE JURISDICTIONS HAVE DEFINITIONS OF CRIMINAL LIBEL
WHICH FALL INTO NO COMMON PATTERN.  SEE CONN. GEN. STAT., 1949, SEC.
8518; HAWAII REV. LAWS, 1945, SEC. 11450; MICH. COMP. LAWS, 1948, SEC.
750-370; N.M. STAT., 1941, SECS. 41-2701, 41-2708; ORE.  COMP.  LAWS,
1940, SEC. 23-437; S.C. CODE, 1942, SEC. 1395; S.D. CODE, 1939, SEC.
13.3401; VERNON'S TEX. STAT., 1948, ARTS. 1269, 1275; VA. CODE, 1950,
SEC. 18-133. 

OUR EXAMINATION OF THE HOMOGENEITY OF THESE STATUTORY DEFINITIONS OF
CRIMINAL LIBEL MIGHT WELL BEGIN AND END WITH THE WORDS "VIRTUE" AND
"RIDICULE."  OF THIRTY-TWO JURISDICTIONS, TWELVE OUTLAW STATEMENTS
IMPEACHING THE "VIRTUE" OF ANOTHER; ELEVEN OF THESE, AND FIFTEEN MORE -
TWENTY-SIX IN ALL - PROHIBIT UTTERANCES TENDING TO BRING ANOTHER INTO
"PUBLIC RIDICULE." 

FOR THE COMMON-LAW DEFINITION, APPLICABLE IN THE TWENTY JURISDICTIONS
FIRST NOTED ABOVE, SEE L. HAND, J., IN GRANT V. READER'S DIGEST ASSN.,
151 F.2D 733, 735, WHERE HE SPEAKS OF DEFINING LIBEL "IN ACCORDANCE
WITH THE USUAL RUBRIC, AS CONSISTING OF UTTERANCES WHICH AROUSE
'HATRED, CONTEMPT, SCORN, OBLOQUY OR SHAME,' AND THE LIKE."  CF.
RESTATEMENT, TORTS, SEC. 559, COMMENT (B); ODGERS, LIBEL AND SLANDER
(6TH ED.), 16-17; NEWELL, SLANDER AND LIBEL (4TH ED.), 1-2. 

EVEN A CURSORY EXAMINATION OF THESE ENACTMENTS AND COMMON-LAW
PRONOUNCEMENTS DEMONSTRATES THAT ILLINOIS, IN SEC. 224A, WAS USING A
FORM OF WORDS WHICH INVOKED THE FAMILIAR COMMON LAW OF LIBEL TO DEFINE
THE PROHIBITED UTTERANCES.  THE DEFENDANT AND THE ILLINOIS COURTS, AS
WE HAVE SEEN, UNDERSTOOD THIS AND ACTED UPON IT. 

FN6  IN ALL BUT FIVE STATES, THE CONSTITUTIONAL GUARANTEE OF FREE
SPEECH TO EVERY PERSON IS EXPLICITLY QUALIFIED BY HOLDING HIM
"RESPONSIBLE FOR THE ABUSE OF THAT RIGHT."  SEE PENNEKAMP V. FLORIDA,
328 U.S. 331, 356, N. 5.  SEE JEFFERSON IN KENTUCKY RESOLUTIONS OF 1798
AND 1799, 4 ELLIOT'S DEBATES 540-541, AND IN AN UNDATED DRAFT PREPARED,
BUT NOT USED, FOR HIS DECEMBER 8, 1801, MESSAGE TO CONGRESS, LIBRARY OF
CONGRESS JEFFERSON PAPERS, VOL. 119, LEAF 20569.  IN CARLSON V.
CALIFORNIA, 310 U.S. 106, 112, WE NOTED THAT THE STATUTE THERE
INVALIDATED MADE "NO EXCEPTIONS WITH RESPECT TO THE TRUTHFULNESS AND
RESTRAINT OF THE INFORMATION CONVEYED  ...  ." 

FN7  COMPARE REPORTS OF KING V. OSBORNE IN 2 BARN.  K.B. 138, 166, 94
ENG. REP. 406, 425; 2 SWANS.  503, N. (C), 36 ENG. REP. 705, 717; W.
KEL.  *230, 25 ENG. REP. 584 (1732).  THE PRESENT ATTORNEY GENERAL OF
ENGLAND ASSERTED THAT THIS CASE OBVIATED THE NEED OF SPECIAL GROUP
LIBEL LEGISLATION FOR GREAT BRITAIN.  SEE THE (LONDON) TIMES, MARCH 26,
1952, P. 2, COL. 4.  SEE ALSO ODGERS, LIBEL AND SLANDER (6TH ED.), 369;
TANENHAUS, GROUP LIBEL, 35 CORNELL L.Q. 261, 267-269.    FN8  ONE OF
THE LEADING CASES AROSE IN ILLINOIS.  PEOPLE V. SPIELMAN, 318 ILL. 482,
149 N.E. 466 (1925), SUSTAINING A CONVICTION FOR LIBEL ON THE MEMBERS
OF THE AMERICAN LEGION.  THE AUTHORITIES ARE COLLECTED AND DISCUSSED IN
TANENHAUS, GROUP LIBEL, 35 CORNELL L.Q. 261, 269-276. 

FN9  SEE, E.G., LOEWENSTEIN, LEGISLATIVE CONTROL OF POLITICAL
EXTREMISM IN EUROPEAN DEMOCRACIES, 38 COL. L. REV. 591 AND 725;
RIESMAN, DEMOCRACY AND DEFAMATION, 42 COL.  L. REV. 727, 1085 AND 1282;
PUBLIC ORDER ACT, 1936, 1 EDW.  VIII AND 1 GEO. VI, C. 6, AND 317 H.C.
DEB.  1349-1473 (5TH SER.  1936); 318 H.C. DEB.  49-193, 581-710, 1659
1785, 2781-2784 (5TH SER.  1936); 103 H.L. DEB.  741-773, 961-972 (5TH
SER.  1936). 

FN10  SEE GENERALLY THE CHICAGO COMMISSION ON RACE RELATIONS, THE
NEGRO IN CHICAGO, 1-78, AND PASSIM (UNIVERSITY OF CHICAGO PRESS, 1922);
RESEARCH MEMORANDUM NO. 5, FIRST ANNUAL REP. ILL. INTER-RACIAL COMM'N
(1944). 

FN11  THE MAY 28, 1917, RIOT IN EAST ST. LOUIS, ILLINOIS, WAS
PRECEDED BY A VIOLENTLY INFLAMMATORY SPEECH TO UNEMPLOYED WORKMEN BY A
PROMINENT LAWYER OF THE TOWN.  REPORT OF THE SPECIAL COMMITTEE
AUTHORIZED BY CONGRESS TO INVESTIGATE THE EAST ST. LOUIS RIOTS, H.R.
DOC. NO. 1231, 65TH CONG., 2D SESS. 11; CHICAGO COMMISSION ON RACE
RELATIONS, THE NEGRO IN CHICAGO, 75.  AND SEE ID., AT 118-122 FOR
LITERATURE CIRCULATED BY REAL ESTATE ASSOCIATIONS AND OTHER GROUPS
DURING THE SERIES OF BOMBINGS LEADING UP TO THE CHICAGO RIOTS OF 1919. 
FOR THE COMMISSION'S COMMENTS ON THE ROLE OF PROPAGANDA IN PROMOTING
RACE FRICTIONS, SEE ID., AT 589, 638-639. 

FN12  TABLES IN DRAKE AND CAYTON, BLACK METROPOLIS, 8, SHOW THAT
BETWEEN 1900 AND 1920 THE NUMBER OF FOREIGN-BORN IN CHICAGO INCREASED
BY OVER 1/3 AND THE NEGRO POPULATION TREBLED.  UNITED STATES CENSUS
FIGURES SHOW THE FOLLOWING POPULATION GROWTH FOR THE STATE AS A WHOLE
AND SELECTED COUNTIES:

           ILLINOIS               COOK COUNTY  ST.

           CLAIR COUNTY                        (CHICAGO)

                 (EAST ST. LOUIS)

TOTAL        NEGRO      TOTAL         NEGRO        TOTAL    NEGRO 

1900  4,821,550     85,078    1,838,735      31,838       86,685
3,987 

1910  5,638,591    109,049 2,405,233      46,627      119,870
8,110 

1920  6,485,280    182,274    3,053,017     115,238      136,520
10,136 

1930  7,630,654    328,972    3,982,123     246,992     157,775
15,550 

1940  7,897,241    387,446    4,063,342     249,157      166,899
21,567 

1950  8,712,176    645,989    4,508,792     521,007      205,995
34,566 

FOR AN ACCOUNT OF THESE VAST POPULATION MOVEMENTS ENTAILING GREAT
SOCIAL MALADJUSTMENTS, SEE DRAKE AND CAYTON, BLACK METROPOLIS, 8-18, 31
65; CHICAGO COMMISSION ON RACE RELATIONS, THE NEGRO IN CHICAGO, 79-105;
CARL SANDBURG, THE CHICAGO RACE RIOTS, 9-30. 

FN13  SEE WALLING, RACE WAR IN THE NORTH, 65 THE INDEPENDENT 529
(1908).  THIS ARTICLE APPARENTLY LED TO THE FOUNDING OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE.  OVINGTON, HOW THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE BEGAN, 8
CRISIS 184 (1914).  SEE ALSO CHICAGO COMMISSION ON RACE RELATIONS, THE
NEGRO IN CHICAGO, 67-71. 

FN14  REPORT OF THE SPECIAL COMMITTEE AUTHORIZED BY CONGRESS TO
INVESTIGATE THE EAST ST. LOUIS RIOTS, H.R. DOC. NO. 1231, 65TH CONG.,
2D SESS.  SEE ALSO THE MASSACRE OF EAST ST. LOUIS, 14 CRISIS 219
(1917). 

FN15  CHICAGO COMMISSION ON RACE RELATIONS, THE NEGRO IN CHICAGO, 122
133. 

FN16  THE UTTERANCES HERE IN QUESTION "ARE NOT," AS A DETACHED
STUDENT OF THE PROBLEM HAS NOTED, "THE DAILY GRIST OF VITUPERATIVE
POLITICAL DEBATE.  NOR DO THEY REPRESENT THE FROTHY IMAGININGS OF
LUNATICS, OR THE 'IDLE' GOSSIP OF A COUNTRY TOWN.  RATHER, THEY
INDICATE THE SYSTEMATIC AVALANCHE OF FALSEHOODS WHICH ARE CIRCULATED
CONCERNING THE VARIOUS GROUPS, CLASSES AND RACES WHICH MAKE UP THE
COUNTRIES OF THE WESTERN WORLD."  RIESMAN, DEMOCRACY AND DEFAMATION:
CONTROL OF GROUP LIBEL, 42 COL. L. REV., AT 727.  PROFESSOR RIESMAN
CONTINUES:  "SUCH PURPOSEFUL ATTACKS ARE NOTHING NEW, OF COURSE ...  .
WHAT IS NEW, HOWEVER, IS THE EXISTENCE OF A MOBILE PUBLIC OPINION AS
THE CONTROLLING FORCE IN POLITICS, AND THE SYSTEMATIC MANIPULATION OF
THAT OPINION BY THE USE OF CALCULATED FALSEHOOD AND VILIFICATION." 
ID., AT 728. 

FN17 SEE, E.G., L. HAND, J., IN A SYMPOSIUM IN THE SATURDAY REVIEW OF
LITERATURE, MAR. 15, 1947, PP. 23-24; REPORT OF THE COMMITTEE ON THE
LAW OF DEFAMATION, CMD.  7536, 11 (1948). 

FN18  IT DESERVES EMPHASIS THAT THERE IS NO SUCH ATTEMPT IN THIS
STATUTE.  THE RUBRIC "RACE, COLOR, CREED OR RELIGION" WHICH DESCRIBES
THE TYPE OF GROUP LIBEL OF WHICH IS PUNISHABLE, HAS ATTAINED TOO FIXED
A MEANING TO PERMIT POLITICAL GROUPS TO BE BROUGHT WITHIN IT.  IF A
STATUTE SOUGHT TO OUTLAW LIBELS OF POLITICAL PARTIES, QUITE DIFFERENT
PROBLEMS NOT NOW BEFORE US WOULD BE RAISED.  FOR ONE THING, THE WHOLE
DOCTRINE OF FAIR COMMENT AS INDISPENSABLE TO THE DEMOCRATIC POLITICAL
PROCESS WOULD COME INTO PLAY.  SEE PEOPLE V. FULLER, SUPRA, AT 125, 87
N.E., AT 338-339; COMMONWEALTH V. PRATT, 208 MASS. 553, 559, 95 N.E.
105, 106.  POLITICAL PARTIES, LIKE PUBLIC MEN, ARE, AS IT WERE, PUBLIC
PROPERTY. 

FN19  INDEED, SUCH DEFENSES ARE EVIDENTLY PROTECTED BY ILLINOIS LAW. 
SEE ILL. CONST., ART. II, SEC. 17, GUARANTEEING THE RIGHT OF THE PEOPLE
TO APPLY FOR REDRESS OF GRIEVANCES.  AND SEE PEOPLE V. FULLER, 238 ILL.
116, 125, 87 N.E. 336, 338-339, ON THE DEFENSE OF "FAIR COMMENT" IN
CRIMINAL LIBEL PROSECUTIONS. 

FN20  THE PRESENT CONSTITUTION, ADOPTED IN 1870, IS ILLINOIS' THIRD. 
THE FIRST TWO PRESERVED THE DEFENSE OF TRUTH IN CERTAIN TYPES OF LIBEL
PROSECUTIONS:  "IN PROSECUTIONS FOR THE PUBLICATION OF PAPERS
INVESTIGATING THE OFFICIAL CONDUCT OF OFFICERS, OR OF MEN ACTING IN A
PUBLIC CAPACITY, OR WHERE THE MATTER PUBLISHED IS PROPER FOR PUBLIC
INFORMATION, THE TRUTH THEREOF MAY BE GIVEN IN EVIDENCE.  AND IN ALL
INDICTMENTS FOR LIBELS THE JURY SHALL HAVE THE RIGHT OF DETERMINING
BOTH THE LAW AND THE FACT UNDER THE DIRECTION OF THE COURT AS IN OTHER
CASES."  ILL. CONST., 1818, ART. VIII, SEC. 23; ILL. CONST., 1848, ART.
XIII, SEC. 24.  THE COMBINED REQUIREMENT OF TRUTH AND GOOD MOTIVES AND
JUSTIFIABLE ENDS, AVAILABLE AS A DEFENSE IN ALL LIBEL SUITS, WAS
ADOPTED WITH THE CONSTITUTION OF 1870. 

FN21  DEFENDANT OFFERED TO SHOW (1) THAT CRIMES WERE MORE FREQUENT IN
DISTRICTS HEAVILY POPULATED BY NEGROES THAN IN THOSE WHERE WHITES
PREDOMINATED; (2) THREE SPECIFIC CRIMES ALLEGEDLY COMMITTED BY NEGROES;
AND (3) THAT PROPERTY VALUES DECLINED WHEN NEGROES MOVED INTO A
NEIGHBORHOOD.  IT IS DOUBTFUL WHETHER SUCH A SHOWING IS AS EXTENSIVE AS
THE DEFAMATORY ALLEGATIONS IN THE LITHOGRAPH CIRCULATED BY THE
DEFENDANT. 

FN22  THE DEFENSE ATTORNEY PUT A FEW QUESTIONS TO THE DEFENDANT ON
THE WITNESS STAND WHICH TENDED TOWARD ELABORATING HIS MOTIVES IN
CIRCULATING THE LITHOGRAPH COMPLAINED OF.  WHEN OBJECTIONS TO THESE
QUESTIONS WERE SUSTAINED, NO OFFER OF PROOF WAS MADE, IN CONTRAST TO
THE RATHER ELABORATE OFFER WHICH FOLLOWED THE REFUSAL TO PERMIT
QUESTIONING TENDING TO SHOW THE TRUTH OF THE MATTER.  INDEED, IN THAT
OFFER ITSELF, DESPITE ITS CONSIDERABLE DETAIL, NO MENTION WAS MADE OF
THE NECESSARY ELEMENT OF GOOD MOTIVE OR JUSTIFIABLE ENDS.  IN ANY
EVENT, THE QUESTION OF EXCLUSION OF THIS TESTIMONY GOING TO MOTIVE WAS
NOT RAISED BY MOTION IN THE TRIAL COURT, ON APPEAL IN ILLINOIS, OR
BEFORE US. 

FN23  THE LAW STRUCK DOWN BY THE NEW JERSEY COURT IN NEW JERSEY V.
KLAPPROTT, 127 N.J.L. 395, 22 A.2D 877, WAS QUITE DIFFERENT THAN THE
ONE BEFORE US AND WAS NOT LIMITED, AS IS THE ILLINOIS STATUTE, BY
CONSTRUCTION OR USAGE.  INDEED, IN THAT CASE THE COURT EMPHASIZED THAT
"IT IS NOT A CASE OF LIBEL," AND CONTRASTED THE HISTORY AT COMMON LAW
OF CRIMINAL PROSECUTIONS FOR WRITTEN AND SPOKEN DEFAMATION. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

THIS CASE IS HERE BECAUSE ILLINOIS INFLICTED CRIMINAL PUNISHMENT ON
BEAUHARNAIS FOR CAUSING THE DISTRIBUTION OF LEAFLETS IN THE CITY OF
CHICAGO.  THE CONVICTION RESTS ON THE LEAFLETS CONTENTS, NOT ON THE
TIME, MANNER OR PLACE OF DISTRIBUTION.  BEAUHARNAIS IS HEAD OF AN
ORGANIZATION THAT OPPOSES AMALGAMATION AND FAVORS SEGREGATION OF WHITE
AND COLORED PEOPLE.  AFTER DISCUSSION, AN ASSEMBLY OF HIS GROUP DECIDED
TO PETITION THE MAYOR AND COUNCIL OF CHICAGO TO PASS LAWS FOR
SEGREGATION.  VOLUNTEER MEMBERS OF THE GROUP AGREED TO STAND ON STREET
CORNERS, SOLICIT SIGNERS TO PETITIONS ADDRESSED TO THE CITY
AUTHORITIES, AND DISTRIBUTE LEAFLETS GIVING INFORMATION ABOUT THE
GROUP, ITS BELIEFS AND ITS PLANS.  IN CARRYING OUT THIS PROGRAM A
SOLICITOR HANDED OUT A LEAFLET WHICH WAS THE BASIS OF THIS
PROSECUTION.  SINCE THE COURT OPINION QUOTES ONLY PARTS OF THE LEAFLET,
I AM INCLUDING ALL OF IT AS AN APPENDIX TO THIS DISSENT, POST, P. 276. 

                                             I. 

THAT BEAUHARNAIS AND HIS GROUP WERE MAKING A GENUINE EFFORT TO
PETITION THEIR ELECTED REPRESENTATIVES IS NOT DISPUTED.  EVEN AS FAR
BACK AS 1689, THE BILL OF RIGHTS EXACTED OF WILLIAM & MARY SAID:  "IT
IS THE RIGHT OF THE SUBJECTS TO PETITION THE KING, AND ALL COMMITMENTS
AND PROSECUTIONS FOR SUCH PETITIONING ARE ILLEGAL."  (FN1)  AND 178
YEARS AGO THE DECLARATION OF RIGHTS OF THE CONTINENTAL CONGRESS
PROCLAIMED TO THE MONARCH OF THAT DAY THAT HIS AMERICAN SUBJECTS HAD "A
RIGHT PEACEABLY TO ASSEMBLE, CONSIDER THEIR GRIEVANCES, AND PETITION
THE KING; AND THAT ALL PROSECUTIONS, PROHIBITORY PROCLAMATIONS, AND
COMMITMENTS FOR THE SAME, ARE ILLEGAL."  (FN2)  AFTER INDEPENDENCE WAS
WON, AMERICANS STATED AS THE FIRST UNEQUIVOCAL COMMAND OF THEIR BILL OF
RIGHTS: "CONGRESS SHALL MAKE NO LAW  ...  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." 
WITHOUT DISTORTION, THIS FIRST AMENDMENT COULD NOT POSSIBLY BE READ SO
AS TO HOLD THAT CONGRESS HAS POWER TO PUNISH BEAUHARNAIS AND OTHERS FOR
PETITIONING CONGRESS AS THEY HAVE HERE SOUGHT TO PETITION THE CHICAGO
AUTHORITIES.  SEE E.G., BRIDGES V. CALIFORNIA, 314 U.S. 252, 277.  AND
WE HAVE HELD IN A NUMBER OF PRIOR CASES THAT THE FOURTEENTH AMENDMENT
MAKES THE SPECIFIC PROHIBITIONS OF THE FIRST AMENDMENT EQUALLY
APPLICABLE TO THE STATES.  (FN3) 

IN VIEW OF THESE PRIOR HOLDINGS, HOW DOES THE COURT JUSTIFY ITS
HOLDING TODAY THAT STATES CAN PUNISH PEOPLE FOR EXERCISING THE VITAL
FREEDOMS INTENDED TO BE SAFEGUARDED FROM SUPPRESSION BY THE FIRST
AMENDMENT?  THE PRIOR HOLDINGS ARE NOT REFERRED TO; THE COURT SIMPLY
ACTS ON THE BLAND ASSUMPTION THAT THE FIRST AMENDMENT IS WHOLLY
IRRELEVANT.  IT IS NOT EVEN ACCORDED THE RESPECT OF A PASSING MENTION. 
THIS FOLLOWS LOGICALLY, I SUPPOSE, FROM RECENT CONSTITUTIONAL DOCTRINE
WHICH APPEARS TO MEASURE STATE LAWS SOLELY BY THIS COURT'S NOTIONS OF
CIVILIZED "CANONS OF DECENCY," REASONABLENESS, ETC.  SEE, E.G., ROCHIN
V. CALIFORNIA, 342 U.S. 165, 169.  UNDER THIS "REASONABLENESS" TEST,
STATE LAWS ABRIDGING FIRST AMENDMENT FREEDOMS ARE SUSTAINED IF FOUND TO
HAVE A "RATIONAL BASIS."  BUT IN BOARD OF EDUCATION V. BARNETTE, 319
U.S. 624, 639, WE SAID: 

"IN WEIGHING ARGUMENTS OF THE PARTIES IT IS IMPORTANT TO DISTINGUISH
BETWEEN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AS AN
INSTRUMENT FOR TRANSMITTING THE PRINCIPLES OF THE FIRST AMENDMENT AND
THOSE CASES IN WHICH IT IS APPLIED FOR ITS OWN SAKE.  THE TEST OF
LEGISLATION WHICH COLLIDES WITH THE FOURTEENTH AMENDMENT, BECAUSE IT
ALSO COLLIDES WITH THE PRINCIPLES OF THE FIRST, IS MUCH MORE DEFINITE
THAN THE TEST WHEN ONLY THE FOURTEENTH IS INVOLVED.  MUCH OF THE
VAGUENESS OF THE DUE PROCESS CLAUSE DISAPPEARS WHEN THE SPECIFIC
PROHIBITIONS OF THE FIRST BECOME ITS STANDARD.  THE RIGHT OF A STATE TO
REGULATE, FOR EXAMPLE, A PUBLIC UTILITY MAY WELL INCLUDE, SO FAR AS THE
DUE PROCESS TEST IS CONCERNED, POWER TO IMPOSE ALL OF THE RESTRICTIONS
WHICH A LEGISLATURE MAY HAVE A 'RATIONAL BASIS' FOR ADOPTING.  BUT
FREEDOMS OF SPEECH AND OF PRESS, OF ASSEMBLY, AND OF WORSHIP MAY NOT BE
INFRINGED ON SUCH SLENDER GROUNDS." 

TODAY'S CASE DEGRADES FIRST AMENDMENT FREEDOMS TO THE "RATIONAL
BASIS" LEVEL.  IT IS NOW A CERTAINTY THAT THE NEW "DUE PROCESS"
COVERALL OFFERS FAR LESS PROTECTION TO LIBERTY THAN WOULD ADHERENCE TO
OUR FORMER CASES COMPELLING STATES TO ABIDE BY THE UNEQUIVOCAL FIRST
AMENDMENT COMMAND THAT ITS DEFINED FREEDOMS SHALL NOT BE ABRIDGED. 

THE COURT'S HOLDING HERE AND THE CONSTITUTIONAL DOCTRINE BEHIND IT
LEAVE THE RIGHTS OF ASSEMBLY, PETITION, SPEECH AND PRESS ALMOST
COMPLETELY AT THE MERCY OF STATE LEGISLATIVE, EXECUTIVE, AND JUDICIAL
AGENCIES.  I SAY "ALMOST" BECAUSE STATE CURTAILMENT OF THESE FREEDOMS
MAY STILL BE INVALIDATED IF A MAJORITY OF THIS COURT CONCLUDE THAT A
PARTICULAR INFRINGEMENT IS "WITHOUT REASON," OR IS "A WILFUL AND
PURPOSELESS RESTRICTION UNRELATED TO THE PEACE AND WELL BEING OF THE
STATE."  BUT LEST THIS ENCOURAGEMENT SHOULD GIVE TOO MUCH HOPE AS TO
HOW AND WHEN THIS COURT MIGHT PROTECT THESE BASIC FREEDOMS FROM STATE
INVASION, WE ARE CAUTIONED THAT STATE LEGISLATURES MUST BE LEFT FREE TO
"EXPERIMENT" AND TO MAKE "LEGISLATIVE" JUDGMENTS.  WE ARE TOLD THAT
MISTAKES MAY BE MADE DURING THE LEGISLATIVE PROCESS OF CURBING PUBLIC
OPINION.  IN SUCH EVENT THE COURT FORTUNATELY DOES NOT LEAVE THOSE
MISTAKENLY CURBED, OR ANY OF US FOR THAT MATTER, UNADVISED. 
CONSOLATION CAN BE SOUGHT AND MUST BE FOUND IN THE PHILOSOPHICAL
REFLECTION THAT STATE LEGISLATIVE ERROR IN STIFLING SPEECH AND PRESS
"IS THE PRICE TO BE PAID FOR THE TRIAL-AND-ERROR INHERENT IN
LEGISLATIVE EFFORTS TO DEAL WITH OBSTINATE SOCIAL ISSUES."  MY OWN
BELIEF IS THAT NO LEGISLATURE IS CHARGED WITH THE DUTY OR VESTED WITH
THE POWER TO DECIDE WHAT PUBLIC ISSUES AMERICANS CAN DISCUSS.  IN A
FREE COUNTRY THAT IS THE INDIVIDUAL'S CHOICE, NOT THE STATE'S.  STATE
EXPERIMENTATION IN CURBING FREEDOM OF EXPRESSION IS STARTLING AND
FRIGHTENING DOCTRINE IN A COUNTRY DEDICATED TO SELF-GOVERNMENT BY ITS
PEOPLE.  I REJECT THE HOLDING THAT EITHER STATE OR NATION CAN PUNISH
PEOPLE FOR HAVING THEIR SAY IN MATTERS OF PUBLIC CONCERN. 

                                          II. 

THE ILLINOIS STATUTE UPHELD BY THE COURT MAKES IT A CRIME: 

1.  FOR "ANY PERSON, FIRM OR CORPORATION." 

2.  TO "MANUFACTURE, SELL, OR OFFER FOR SALE, ADVERTISE OR PUBLISH,
PRESENT OR EXHIBIT IN ANY PUBLIC PLACE." 

3.  ANY "LITHOGRAPH (CONSTRUED TO INCLUDE ANY PRINTED MATTER), MOVING
PICTURE, PLAY, DRAMA OR SKETCH." 

4.  WHICH PORTRAYS "DEPRAVITY, CRIMINALITY, UNCHASTITY, OR LACK OF
VIRTUE." 

5.  OF "A CLASS OF CITIZENS, OF ANY RACE, COLOR, CREED OR RELIGION." 

6.  AND EXPOSES SUCH A CLASS TO "CONTEMPT, DERISION, OR OBLOQUY." 

7.  OR "IS PRODUCTIVE OF BREACH OF THE PEACE OR RIOTS." 

THIS STATUTE IMPOSES STATE CENSORSHIP OVER THE THEATER, MOVING
PICTURES, RADIO, TELEVISION, LEAFLETS, MAGAZINES, BOOKS AND
NEWSPAPERS.  NO DOUBT THE STATUTE IS BROAD ENOUGH TO MAKE CRIMINAL THE
"PUBLICATION, SALE, PRESENTATION OR EXHIBITION" OF MANY OF THE WORLD'S
GREAT CLASSICS, BOTH SECULAR AND RELIGIOUS.    THE COURT CONDONES THIS
EXPANSIVE STATE CENSORSHIP BY PAINSTAKINGLY ANALOGIZING IT TO THE LAW
OF CRIMINAL LIBEL.  AS A RESULT OF THIS REFINED ANALYSIS, THE ILLINOIS
STATUTE EMERGES LABELED A "GROUP LIBEL LAW."  THIS LABEL MAY MAKE THE
COURT'S HOLDING MORE PALATABLE FOR THOSE WHO SUSTAIN IT, BUT THE SUGAR
COATING DOES NOT MAKE THE CENSORSHIP LESS DEADLY.  HOWEVER TAGGED, THE
ILLINOIS LAW IS NOT THAT CRIMINAL LIBEL WHICH HAS BEEN "DEFINED,
LIMITED AND CONSTITUTIONALLY RECOGNIZED TIME OUT OF MIND."  (FN4)  FOR
AS "CONSTITUTIONALLY RECOGNIZED" THAT CRIME HAS PROVIDED FOR PUNISHMENT
OF FALSE, MALICIOUS, SCURRILOUS CHARGES AGAINST INDIVIDUALS, NOT
AGAINST HUGE GROUPS.  THIS LIMITED SCOPE OF THE LAW OF CRIMINAL LIBEL
IS OF NO SMALL IMPORTANCE.  IT HAS CONFINED STATE PUNISHMENT OF SPEECH
AND EXPRESSION TO THE NARROWEST OF AREAS INVOLVING NOTHING MORE THAN
PURELY PRIVATE FEUDS.  EVERY EXPANSION OF THE LAW OF CRIMINAL LIBEL SO
AS TO PUNISH DISCUSSIONS OF MATTERS OF PUBLIC CONCERN MEANS A
CORRESPONDING INVASION OF THE AREA DEDICATED TO FREE EXPRESSION BY THE
FIRST AMENDMENT. 

PRIOR EFFORTS TO EXPAND THE SCOPE OF CRIMINAL LIBEL BEYOND ITS
TRADITIONAL BOUNDARIES HAVE NOT USUALLY MET WITH WIDESPREAD POPULAR
ACCLAIM.  "SEDITIOUS LIBEL" WAS SUCH AN EXPANSION AND IT DID HAVE ITS
DAY, PARTICULARLY IN THE ENGLISH COURT OF STAR CHAMBER.  BUT THE FIRST
AMENDMENT REPUDIATED SEDITIOUS LIBEL FOR THIS COUNTRY.  AND ONE NEED
ONLY GLANCE THROUGH THE PARLIAMENTARY DISCUSSION OF FOX'S LIBEL LAW
PASSED IN ENGLAND IN 1792, TO SENSE THE BAD ODOR OF CRIMINAL LIBEL IN
THAT COUNTRY EVEN WHEN CONFINED TO CHARGES AGAINST INDIVIDUALS ONLY. 

THE COURT'S RELIANCE ON CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, IS
ALSO MISPLACED.  NEW HAMPSHIRE HAD A STATE LAW MAKING IT AN OFFENSE TO
DIRECT INSULTING WORDS AT AN INDIVIDUAL ON A PUBLIC STREET.  CHAPLINSKY
HAD VIOLATED THAT LAW BY CALLING A MAN VILE NAMES "FACE-TO-FACE."  WE
POINTED OUT IN THAT CONTEXT THAT THE USE OF SUCH "FIGHTING" WORDS WAS
NOT AN ESSENTIAL PART OF EXPOSITION OF IDEAS.  WHETHER THE WORDS USED
IN THEIR CONTEXT HERE ARE "FIGHTING" WORDS IN THE SAME SENSE IS
DOUBTFUL, BUT WHETHER SO OR NOT THEY ARE NOT ADDRESSED TO OR ABOUT
INDIVIDUALS.  MOREOVER, THE LEAFLET USED HERE WAS ALSO THE MEANS
ADOPTED BY AN ASSEMBLED GROUP TO ENLIST INTEREST IN THEIR EFFORTS TO
HAVE LEGISLATION ENACTED.  AND THE FIGHTING WORDS WERE BUT A PART OF
ARGUMENTS ON QUESTIONS OF WIDE PUBLIC INTEREST AND IMPORTANCE.  FREEDOM
OF PETITION, ASSEMBLY, SPEECH AND PRESS COULD BE GREATLY ABRIDGED BY A
PRACTICE OF METICULOUSLY SCRUTINIZING EVERY EDITORIAL, SPEECH, SERMON
OR OTHER PRINTED MATTER TO EXTRACT TWO OR THREE NAUGHTY WORDS ON WHICH
TO HANG CHARGES OF "GROUP LIBEL."  THE CHAPLINSKY CASE MAKES NO SUCH
BROAD INROADS ON FIRST AMENDMENT FREEDOMS.  NOTHING MR. JUSTICE MURPHY
WROTE FOR THE COURT IN THAT CASE OR IN ANY OTHER CASE JUSTIFIES ANY
SUCH INFERENCE. 

UNLESS I MISREAD HISTORY THE MAJORITY IS GIVING LIBEL A MORE
EXPANSIVE SCOPE AND MORE RESPECTABLE STATUS THAN IT WAS EVER ACCORDED
EVEN IN THE STAR CHAMBER.  FOR HERE IT IS HELD TO BE PUNISHABLE TO GIVE
PUBLICITY TO ANY PICTURE, MOVING PICTURE, PLAY, DRAMA OR SKETCH, OR ANY
PRINTED MATTER WHICH A JUDGE MAY FIND UNDULY OFFENSIVE TO ANY RACE,
COLOR, CREED OR RELIGION.  IN OTHER WORDS, IN ARGUING FOR OR AGAINST
THE ENACTMENT OF LAWS THAT MAY DIFFERENTLY AFFECT HUGE GROUPS, IT IS
NOW VERY DANGEROUS INDEED TO SAY SOMETHING CRITICAL OF ONE OF THE
GROUPS.  AND ANY "PERSON, FIRM OR CORPORATION" CERTAINLY INCLUDES A
BOOK PUBLISHER, NEWSPAPER, RADIO OR TELEVISION STATION, CANDIDATE OR
EVEN A PREACHER. 

IT IS EASY ENOUGH TO SAY THAT NONE OF THIS LATTER GROUP HAVE BEEN
PROCEEDED AGAINST UNDER THE ILLINOIS ACT.  AND THEY HAVE NOT - YET. 
BUT EMOTIONS BUBBLE AND TEMPERS FLARE IN RACIAL AND RELIGIOUS
CONTROVERSIES, THE KIND HERE INVOLVED.  IT WOULD NOT BE EASY FOR ANY
COURT, IN GOOD CONSCIENCE, TO NARROW THIS ACT SO AS TO EXCLUDE FROM IT
ANY OF THOSE I HAVE MENTIONED.  FURTHERMORE, PERSONS TRIED UNDER THE
ACT COULD NOT EVEN GET A JURY TRIAL EXCEPT AS TO THE BARE FACT OF
PUBLICATION.  HERE, THE COURT SIMPLY CHARGED THE JURY THAT BEAUHARNAIS
WAS GUILTY IF HE HAD CAUSED DISTRIBUTION OF THE LEAFLET.  SUCH TRIAL BY
JUDGE RATHER THAN BY JURY WAS OUTLAWED IN ENGLAND IN 1792 BY FOX'S
LIBEL LAW. 

THIS ACT SETS UP A SYSTEM OF STATE CENSORSHIP WHICH IS AT WAR WITH
THE KIND OF FREE GOVERNMENT ENVISIONED BY THOSE WHO FORCED ADOPTION OF
OUR BILL OF RIGHTS.  THE MOTIVES BEHIND THE STATE LAW MAY HAVE BEEN TO
DO GOOD.  BUT THE SAME CAN BE SAID ABOUT MOST LAWS MAKING OPINIONS
PUNISHABLE AS CRIMES.  HISTORY INDICATES THAT URGES TO DO GOOD HAVE LED
TO THE BURNING OF BOOKS AND EVEN TO THE BURNING OF "WITCHES." 

NO RATIONALIZATION ON A PURELY LEGAL LEVEL CAN CONCEAL THE FACT THAT
STATE LAWS LIKE THIS ONE PRESENT A CONSTANT OVERHANGING THREAT TO
FREEDOM OF SPEECH, PRESS AND RELIGION.  TODAY BEAUHARNAIS IS PUNISHED
FOR PUBLICLY EXPRESSING STRONG VIEWS IN FAVOR OF SEGREGATION. 
IRONICALLY ENOUGH, BEAUHARNAIS, CONVICTED OF CRIME IN CHICAGO, WOULD
PROBABLY BE GIVEN A HERO'S RECEPTION IN MANY OTHER LOCALITIES, IF NOT
IN SOME PARTS OF CHICAGO ITSELF.  MOREOVER, THE SAME KIND OF STATE LAW
THAT MAKES BEAUHARNAIS A CRIMINAL FOR ADVOCATING SEGREGATION IN
ILLINOIS CAN BE UTILIZED TO SEND PEOPLE TO JAIL IN OTHER STATES FOR
ADVOCATING EQUALITY AND NONSEGREGATION.  WHAT BEAUHARNAIS SAID IN HIS
LEAFLET IS MILD COMPARED WITH USUAL ARGUMENTS ON BOTH SIDES OF RACIAL
CONTROVERSIES. 

WE ARE TOLD THAT FREEDOM OF PETITION AND DISCUSSION ARE IN NO DANGER
"WHILE THIS COURT SITS."  THIS CASE RAISES CONSIDERABLE DOUBT.  SINCE
THOSE WHO PEACEFULLY PETITION FOR CHANGES IN THE LAW ARE NOT TO BE
PROTECTED "WHILE THIS COURT SITS," WHO IS?  I DO NOT AGREE THAT THE
CONSTITUTION LEAVES FREEDOM OF PETITION, ASSEMBLY, SPEECH, PRESS OR
WORSHIP AT THE MERCY OF A CASE-BY-CASE, DAY-BY-DAY MAJORITY OF THIS
COURT.  I HAD FOUNDERS, IT CALCULATES WHAT IT DEEMS TO BE THE DANGER OF
PUBLIC DISCUSSION, HOLDS THE SCALES ARE TIPPED ON THE SIDE OF STATE
SUPPRESSION, AND THAN ON THE GRACE OF THIS COURT ON AN INDIVIDUAL CASE
BASIS.  TO SAY THAT A LEGISLATIVE BODY CAN, WITH THIS COURT'S APPROVAL,
MAKE IT A CRIME TO PETITION FOR AND PUBLICLY DISCUSS PROPOSED
LEGISLATION SEEMS AS FARFETCHED TO ME AS IT WOULD BE TO SAY THAT A
VALID LAW COULD BE ENACTED TO PUNISH A CANDIDATE FOR PRESIDENT FOR
TELLING THE PEOPLE HIS VIEWS.  I THINK THE FIRST AMENDMENT, WITH THE
FOURTEENTH, "ABSOLUTELY" FORBIDS SUCH LAWS WITHOUT ANY "IFS" OR "BUTS"
OR "WHEREASES."  WHATEVER THE DANGER, IF ANY, IN SUCH PUBLIC
DISCUSSIONS, IT IS A DANGER THE FOUNDERS DEEMED OUTWEIGHED BY THE
DANGER INCIDENT TO THE STIFLING OF THOUGHT AND SPEECH.  THE COURT DOES
NOT ACT ON THIS VIEW OF THE FOUNDERS.  IT CALCULATES WHAT IT DEEMS TO
BE THE DANGER OF PUBLIC SUPPRESSION, AND UPHOLDS STATE CENSORSHIP. 
THIS METHOD OF DECISION OFFERS LITTLE PROTECTION TO FIRST AMENDMENT
LIBERTIES "WHILE THIS COURT SITS." 

IF THERE BE MINORITY GROUPS WHO HAIL THIS HOLDING AS THEIR VICTORY,
THEY MIGHT CONSIDER THE POSSIBLE RELEVANCY OF THIS ANCIENT REMARK: 

"ANOTHER SUCH VICTORY AND I AM UNDONE." 

FN1  1 WILLIAM & MARY, SESS. 2, C 2 (1689). 

FN2  EIGHTH RESOLUTION OF THE CONTINENTAL CONGRESS OF 1774. 

FN3  E.G., GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 244, 245,
249; LOVELL V. GRIFFIN, 303 U.S. 444, 450; SCHNEIDER V. STATE, 308 U.S.
147, 160; THORNHILL V. ALABAMA, 310 U.S. 88, 95; MINERSVILLE DISTRICT
V. GOBITIS, 310 U.S. 586, 593; BOARD OF EDUCATION V. BARNETTE, 319 U.S.
624, 639; THOMAS V. COLLINS, 323 U.S. 516, 529-530, CONCURRING OPINION,
545; PENNEKAMP V. FLORIDA, 328 U.S. 331, 349. 

FN4  THE COURT'S FINDING OF A CLOSE KINSHIP BETWEEN "CRIMINAL LIBEL"
AND "GROUP LIBEL" BECAUSE BOTH CONTAIN THE WORD "LIBEL" AND HAVE SOME
FACTORS IN COMMON IS REMINISCENT OF WHAT EARL STANHOPE SAID IN 1792 IN
DISCUSSING MR. FOX'S LIBEL BILL.  HE WAS ARGUING THAT A JURY OF LAYMEN
MIGHT MORE LIKELY PROTECT LIBERTY THAN JUDGES, BECAUSE JUDGES WERE
PRONE TO RELY TOO HEAVILY ON WORD BOOKS.  "HE PUT THE CASE, THAT AN
ACTION FOR A LIBEL WAS BROUGHT FOR USING A MODERN WORD, NOT TO BE FOUND
IN ANY GRAMMAR OR GLOSSARY, FOR SAYING THAT A MAN WAS 'A GREAT BORE;' A
JURY WOULD LAUGH AT SUCH A GROUND OF PROSECUTION, BUT THE JUDGES WOULD
TURN TO THEIR GRAMMARS AND GLOSSARIES, AND NOT BEING ABLE TO MEET WITH
IT, WOULD SAY THEY COULD NOT FIND SUCH A PHRASE AS 'A GREAT BORE,' BUT
THEY HAD FOUND A WILD BOAR, WHICH NO DOUBT IT MEANT; AND YET IT COULD
NOT BE, AS A WILD BOAR HAD FOUR LEGS, AND A MAN WAS A TWO LEGGED
ANIMAL; THEN IT MUST MEAN, THAT THE PLAINTIFF WAS LIKE A WILD BOAR IN
DISPOSITION, WHICH WAS A WICKED LIBEL, AND THEREFORE LET THE DEFENDANT
BE HANGED."  29 HANSARD, PARLIAMENTARY HISTORY OF ENGLAND, P. 1412. 

(FOR APPENDIX TO OPINION OF MR. JUSTICE BLACK, SEE POST, P. 276.) 

(FOR DISSENTING OPINION OF MR. JUSTICE REED, SEE POST, P. 277.) 

(FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 284.) 

(FOR DISSENTING OPINION OF MR. JUSTICE JACKSON, SEE POST, P. 287.) 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE FOURTEENTH AMENDMENT OF OUR CONSTITUTION FORBIDS THAT ANY PERSON
BE DEPRIVED BY A STATE OF LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF
LAW.  THIS ILLINOIS CONVICTION SUBJECTS PETITIONER TO A FINE OF $200. 
THE PETITIONER CHALLENGES THE VALIDITY OF THE SENTENCE ON THE GROUND
THAT HIS CONVICTION UNDER SEC. 224A, DIVISION 1, OF THE ILLINOIS
CRIMINAL CODE (FN1) VIOLATES SUBSTANTIVE DUE PROCESS.  THE PETITION FOR
CERTIORARI PHRASES THE ISSUE THUS:  "IS THE ILLINOIS STATUTE  ...  AS
CONSTRUED  ...  OR APPLIED  ...  INVALID  ...  BECAUSE IT INFRINGES
UPON THE CONSTITUTIONAL GUARANTEE OF FREE SPEECH, PRESS AND OF
ASSEMBLAGE AS GUARANTEED" BY THE FOURTEENTH AMENDMENT? 

THE SUPREME COURT OF ILLINOIS UPHELD THE CONVICTION OF PETITIONER
UNDER AN INFORMATION WHICH CHARGED: 

"THAT DEFENDANT ON JANUARY 7, 1950, AT THE CITY OF CHICAGO, DID
UNLAWFULLY PUBLISH, PRESENT AND EXHIBIT IN PUBLIC PLACES, LITHOGRAPHS,
WHICH PUBLICATIONS PORTRAY DEPRAVITY, CRIMINALITY, UNCHASTITY OR LACK
OF VIRTUE OF CITIZENS OF NEGRO RACE AND COLOR AND WHICH EXPOSES
CITIZENS OF ILLINOIS OF THE NEGRO RACE AND COLOR TO CONTEMPT, DERISION,
OR OBLOQUY, WHICH MORE FULLY APPEARS IN EXHIBIT A, WHICH IS ATTACHED
HERETO AND MADE A PART THEREOF."  (FN2) 

THE EVIDENCE WAS SUFFICIENT TO JUSTIFY THE JURY IN FINDING THAT
BEAUHARNAIS CAUSED THE LITHOGRAPH REFERRED TO IN THE INFORMATION TO BE
PUBLISHED AND DISTRIBUTED IN PUBLIC PLACES.  THE JURY DID SO FIND UNDER
CERTAIN GENERAL INSTRUCTIONS AS TO THE PROPER ATTITUDE OF JURORS BUT
ESSENTIALLY AND SPECIFICALLY UNDER THE FOLLOWING INSTRUCTION: 

"(1) THE COURT INSTRUCTS THE JURY THAT IF YOU FIND FROM THE EVIDENCE
THAT THE DEFENDANT, JOSEPH BEAUHARNAIS, DID ON OR ABOUT JANUARY 7, 1950
MANUFACTURE, SELL, OR OFFER FOR SALE, ADVERTISE OR PUBLISH, PRESENT OR
EXHIBIT IN ANY PUBLIC PLACE THE LITHOGRAPH, WHICH WAS ALLOWED IN
EVIDENCE IN THIS CASE AS PEOPLES EXHIBIT NUMBER 3, THEN YOU ARE TO FIND
THE DEFENDANT GUILTY AND FINE HIM NOT LESS THAN $50.00 NOR MORE THAN
$200.00." 

THUS, THE JUDGE DID NOT LEAVE TO THE JURY BUT DECIDED HIMSELF,
DOUBTLESS AS A MATTER OF LAW, THAT THE PUBLICATION OF THE LITHOGRAPH
VIOLATED THE STATUTE.  NO COMPLAINT WAS MADE OF THIS STATE METHOD OF
TRIAL. 

AT TRIAL, PETITIONER FILED A MOTION TO QUASH THE INFORMATION AND
OBJECTED TO THE ABOVE SPECIFIC INSTRUCTION.  HE ALSO MOVED FOR A
PEREMPTORY INSTRUCTION OF "NOT GUILTY" AND FOR JUDGMENT NOTWITHSTANDING
THE VERDICT.  ALL THESE CONTENTIONS WERE OVERRULED BY THE TRIAL COURT,
AND, ALTHOUGH THE RECORD DOES NOT SHOW A PRECISELY PLEADED OBJECTION TO
THE CONVICTION ON THE GROUND THAT SEC. 224A IS UNCONSTITUTIONAL,
NONETHELESS THE SUPREME COURT OF ILLINOIS TREATED PETITIONER'S
CONTENTION THAT THE STATUTE WAS TOO VAGUE AND BY VIRTUE OF THAT FACT
WAS SO BROAD THAT IT ABRIDGED FREE SPEECH IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  (FN3)  THE PETITION FOR CERTIORARI BRINGS THESE
QUESTIONS HERE. 

IN CARRYING OUT ITS OBLIGATION TO CONFORM STATE LEGAL ADMINISTRATION
TO THE "FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE" IMPOSED ON THE
STATES BY THE FOURTEENTH AMENDMENT, (FN4) THIS COURT HAS STEADILY
AFFIRMED THAT THE GENERAL PRINCIPLE AGAINST ABRIDGEMENT OF FREE SPEECH,
PROTECTED BY THE FIRST AMENDMENT, IS INCLUDED IN THE COMMAND OF THE
FOURTEENTH.  (FN5)  SO IMPORTANT TO A CONSTITUTIONAL DEMOCRACY IS THE
RIGHT OF DISCUSSION THAT ANY CHALLENGE TO LEGISLATIVE ABRIDGEMENT OF
THOSE PRIVILEGES OF A FREE PEOPLE CALLS FOR CAREFUL JUDICIAL
APPRAISAL.  (FN6)  IT IS WHEN SPEECH BECOMES AN INCITEMENT TO CRIME
THAT THE RIGHT FREELY TO EXHORT MAY BE ABRIDGED.  AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 395; HERNDON V. LOWRY, 301
U.S. 242, 255. 

WHEN A STATE CONVICTION IS CHALLENGED HERE ON THE GROUND THAT FREE
SPEECH HAS BEEN ABRIDGED, THIS COURT MUST FIRST DECIDE WHETHER THE
PORTION OF THE STATUTE UPON WHICH THE CHARGE IS BASED IS SO BROAD "AS
TO PERMIT WITHIN THE SCOPE OF ITS LANGUAGE THE PUNISHMENT OF INCIDENTS
FAIRLY WITHIN THE PROTECTION OF THE GUARANTEE OF FREE SPEECH."  WINTERS
V. NEW YORK, 333 U.S. 507, 509.  IN THE WINTERS CASE WE SET ASIDE THE
CONVICTION BECAUSE THE INDEFINITE CHARACTER OF THE STATUTORY LANGUAGE,
AS CONSTRUED BY THE COURT OF APPEALS OF NEW YORK, WAS SO BROAD THAT
PROTECTED SPEECH WAS PROHIBITED.  THIS COURT REVERSED, EVEN THOUGH IT
ASSUMED THAT WINTERS' CONDUCT COULD CONSTITUTIONALLY BE PUNISHED BY A
STATUTE EXPRESSING ITS PROHIBITIONS IN REASONABLY NARROW AND DEFINITE
FORM.  (FN7) 

THIS REQUIREMENT MEANS THAT WHEN THE VERDICT AND JUDGMENT FLOW, AS
HERE, FROM THE INFORMATION AS A WHOLE, EACH AND EVERY PORTION OF THE
STATUTE UPON WHICH THE INFORMATION WAS DRAWN MUST BE CONSTITUTIONAL. 
IN STROMBERG V. CALIFORNIA, 283 U.S. 359, STROMBERG HAD BEEN CONVICTED
IN THE CALIFORNIA COURTS FOR VIOLATING A STATUTE OF THAT STATE
FORBIDDING THE DISPLAY OF A RED FLAG.  (FN8) ON APPEAL, THIS COURT DID
NOT CONSIDER WHETHER STROMBERG'S CONDUCT, AS SHOWN BY THE RECORD, WAS
PROTECTED BY THE CONSTITUTION.  INSTEAD, DESPITE THE FACT THAT THE
SECOND AND THIRD CLAUSES OF THE CALIFORNIA STATUTE WERE UNQUESTIONABLY
VALID UNDER THE FEDERAL CONSTITUTION, THIS COURT REVERSED THE STATE
COURT BECAUSE ITS CONVICTION OF STROMBERG MIGHT HAVE BEEN BASED UPON
THE FIRST CLAUSE, HOLDING THAT "IF ANY OF THE CLAUSES IN QUESTION IS
INVALID UNDER THE FEDERAL CONSTITUTION, THE CONVICTION CANNOT BE
UPHELD."  (FN9)  THE FIRST CLAUSE, FORBIDDING A DISPLAY OF A RED FLAG
AS A SYMBOL OF OPPOSITION TO ORGANIZED GOVERNMENT, WAS DEEMED INVALID
BECAUSE IT WAS SO BROAD THAT IT PERMITTED "PUNISHMENT OR THE FAIR USE
OF (THE) OPPORTUNITY (FOR FREE POLITICAL DISCUSSION, AND WAS THEREFORE)
REPUGNANT TO THE GUARANTY OF LIBERTY CONTAINED IN THE FOURTEENTH
AMENDMENT."  ID. AT 369. 

THE JUDGMENT IN THIS PRESENT CASE FOLLOWED FROM A DETERMINATION OF
JUDGE AND JURY THAT PETITIONER'S PUBLICATION OF THE LITHOGRAPH VIOLATED
THE STATUTE.  FROM THE GENERAL VERDICT OF GUILTY, NOTHING APPEARS TO
SHOW WHAT PARTICULAR WORDS OF THE STATUTE THE ILLINOIS COURTS
DETERMINED THE LITHOGRAPH OFFENDED.  THIS CONVICTION MUST STAND OR FALL
UPON A DETERMINATION WHETHER ALL DEFINITIONS OF THE ACTS PROSCRIBED BY
THE STATUTE AND CHARGED IN THE INFORMATION MAY BE BANNED UNDER THE
PRINCIPLES OF THE FIRST AMENDMENT, FOR, AS THE FOREGOING DISCUSSION
SHOWS, IT IS IMPOSSIBLE TO TELL UPON WHAT PHRASE OF THE STATUTE
PETITIONER'S CONVICTION WAS BASED.  OUR EXAMINATION CAN BEGIN AND END
WITH THE INQUIRY AS TO WHAT MEANING LIES IN THE ACT'S DECLARATION, AS
CHARGED IN THE INFORMATION, THAT IT IS UNLAWFUL TO PORTRAY IN A
LITHOGRAPH A "LACK OF VIRTUE OF A CLASS OF CITIZENS  ...  WHICH  ...
EXPOSES (THEM TO) DERISION, OR OBLOQUY." 

THE MAJORITY OPINION ASSERTS THAT ILLINOIS HAS GIVEN SUFFICIENTLY
CLEAR AND NARROW MEANING TO THE WORDS "VIRTUE," "DERISION" AND
"OBLOQUY" BY CHARACTERIZING SEC. 224A AS "A FORM OF CRIMINAL LIBEL
LAW."  BUT THE MERE DESCRIPTION OF THIS STATUTE AS A CRIMINAL LIBEL LAW
DOES NOT CLARIFY THE MEANING OF THESE VAGUE WORDS IN THE STATUTE.  TO
SAY THAT THE MERE PRESENCE OF THE WORD "VIRTUE" IN THE INDIVIDUAL LIBEL
STATUTE (FN10) MAKES ITS MEANING CLEAR IN THE GROUP LIBEL STATUTE IS A
NON SEQUITUR.  NO CASE IS CITED WHICH DEFINES AND LIMITS THE MEANING OF
THESE WORDS.  RELIANCE IS ALSO PLACED BY THE COURT UPON ILLINOIS'
UNFORTUNATE EXPERIENCE WITH CLASHES BETWEEN RACES.  HOW THAT EXPERIENCE
GIVES CONTENT TO THE VAGUE WORDS IS NOT EXPLAINED.  THE OPINION FURTHER
RELIES UPON "THE CLARIFYING CONSTRUCTION AND FIXED USAGE WHICH GOVERN
THE MEANING OF THE ENACTMENT BEFORE US."  NO OPINIONS CONTAINING SUCH
CLARIFICATION ARE CITED.  IN ADDITION TO THE CASE BEFORE US, WE FIND
ONLY TWO REPORTED ADJUDICATIONS ON SEC. 224A IN THE ILLINOIS COURTS. 
(FN11)  WITHOUT CAVILING THAT ONE OF THESE CASES IS SO RECENT THAT IT
FOLLOWS THE INSTANT CASE IN THE REPORTS, CERTAINLY NEITHER OF THEM
CONTAINS ANY WORDS WHICH GIVE THAT "CLARIFYING CONSTRUCTION" CLAIMED
FOR ILLINOIS LAW. 

THE MAJORITY CERTAINY DO NOT SUPPLY THAT CONSTRUCTION BY INTIMATING
THAT THE PUBLICATIONS PROHIBITED BY SEC. 224A ARE ONLY THOSE "LIABLE TO
CAUSE VIOLENCE AND DISORDER."  MOREOVER, THAT PHRASE WAS USED BY THE
ILLINOIS COURT, NOT TO LIMIT THE PROHIBITION OF SEC. 224A, BUT TO
DESCRIBE THE LITHOGRAPH PUBLISHED BY BEAUHARNAIS.  SEE 408 ILL., AT
517, 97 N.E.2D, AT 346.  THE QUOTED LANGUAGE DOES NOT LIMIT THE
STATUTORY WORDS "VIRTUE," "DERISION" OR "OBLOQUY."  (FN12) 

THE COURT SPEAKS AT LENGTH OF THE CONSTITUTIONAL POWER OF A STATE TO
PASS GROUP LIBEL LAWS TO PROTECT THE PUBLIC PEACE.  THIS DISSENT
ASSUMES THAT POWER.  WHAT IS UNDER DISCUSSION IS WHETHER THE CONVICTION
OF BEAUHARNAIS ON A GENERAL CHARGE OF VIOLATION OF THE STATUTE CAN
STAND WHEN THE STATUTE CONTAINS WITHOUT STATUTORY OR JUDICIAL
DEFINITION WORDS OF SUCH AMBIGUOUS MEANING AND UNCERTAIN CONNOTATION AS
"VIRTUE," "DERISION," OR "OBLOQUY."  THE COURT DOES NOT ATTEMPT TO
SPEAK SPECIFICALLY AS TO THAT CONTENTION. 

THE IMPORTANCE OF A DEFINITE RULING ON THAT POINT IS MANIFEST. 
RACIAL, RELIGIOUS, AND POLITICAL BIASES AND PREJUDICES LEAD TO CHARGE
AND COUNTERCHARGE, ACRIMONY AND BITTERNESS.  IF WORDS ARE TO BE
PUNISHED CRIMINALLY, THE CONSTITUTION AT LEAST REQUIRES THAT ONLY WORDS
OR EXPRESSIONS OR STATEMENTS THAT CAN BE REASONABLY WELL DEFINED, OR
THAT HAVE THROUGH LONG USAGE AN ACCEPTED MEANING, SHALL FURNISH A BASIS
FOR CONVICTION.  (FN13) 

THESE WORDS - "VIRTUE," "DERISION," AND "OBLOQUY" - HAVE NEITHER
GENERAL NOR SPECIAL MEANINGS WELL ENOUGH KNOWN TO APPRISE THOSE WITHIN
THEIR REACH AS TO LIMITATIONS ON SPEECH.  COMPARE CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U.S. 385, 391-392.  PHILOSOPHERS AND POETS,
THINKERS OF HIGH AND LOW DEGREE FROM EVERY AGE AND RACE HAVE SOUGHT TO
EXPOUND THE MEANING OF VIRTUE, BUT EACH TEACHES HIS OWN CONCEPTION OF
THE MORAL EXCELLENCE THAT SATISFIES STANDARDS OF GOOD CONDUCT.  ARE THE
TESTS OF THE PURITAN OR THE CAVALIER TO BE APPLIED, THOSE OF THE CITY
OR THE FARM, THE CHRISTIAN OR NON-CHRISTIAN, THE OLD OR THE YOUNG? 
DOES THE BILL OF RIGHTS PERMIT ILLINOIS TO FORBID ANY REFLECTION ON THE
VIRTUE OF RACIAL OR RELIGIOUS CLASSES WHICH A JURY OR A JUDGE MAY THINK
EXPOSES THEM TO DERISION OR OBLOQUY, WORDS THEMSELVES OF QUITE
UNCERTAIN MEANING AS USED IN THE STATUTE?  I THINK NOT.  A GENERAL AND
EQUAL ENFORCEMENT OF THIS LAW WOULD RESTRAIN THE MILDEST EXPRESSIONS OF
OPINION IN ALL THOSE AREAS WHERE "VIRTUE" MAY BE THOUGHT TO HAVE A
ROLE.  SINCE THIS JUDGMENT MAY REST UPON THESE VAGUE AND UNDEFINED
WORDS, WHICH PERMIT WITHIN THEIR SCOPE THE PUNISHMENT OF INCIDENTS
SECURED BY THE GUARANTEE OF FREE SPEECH, THE CONVICTION SHOULD BE
REVERSED. 

FN1  "IT SHALL BE UNLAWFUL FOR ANY PERSON, FIRM OR CORPORATION TO
MANUFACTURE, SELL, OR OFFER FOR SALE, ADVERTISE OR PUBLISH, PRESENT OR
EXHIBIT IN ANY PUBLIC PLACE IN THIS STATE ANY LITHOGRAPH, MOVING
PICTURE, PLAY, DRAMA OR SKETCH, WHICH PUBLICATION OR EXHIBITION
PORTRAYS DEPRAVITY, CRIMINALITY, UNCHASTITY, OR LACK OF VIRTUE OF A
CLASS OF CITIZENS, OF ANY RACE, COLOR, CREED OR RELIGION WHICH SAID
PUBLICATION OR EXHIBITION EXPOSES THE CITIZENS OF ANY RACE, COLOR,
CREED OR RELIGION TO CONTEMPT, DERISION, OR OBLOQUY OR WHICH IS
PRODUCTIVE OF BREACH OF THE PEACE OR RIOTS.  ANY PERSON, FIRM OR
CORPORATION VIOLATING ANY OF THE PROVISIONS OF THIS SECTION, SHALL BE
GUILTY OF A MISDEMEANOR, AND UPON CONVICTION THEREOF, SHALL BE PUNISHED
BY A FINE OF NOT LESS THAN FIFTY DOLLARS ($50.00), NOR MORE THAN TWO
HUNDRED DOLLARS ($200.00)." 

FN2  PEOPLE V. BEAUHARNAIS, 408 ILL. 512, 514, 97 N.E.2D 343, 344
345.  THE EXHIBIT A REFERRED TO IN THE INFORMATION IS THE LITHOGRAPH
REFERRED TO IN THE INSTRUCTIONS TO THE JURY AS PEOPLE'S EXHIBIT 3. 

FN3  408 ILL. 512, AT 515-516 AND 517, 97 N.E.2D 343, AT 345-346.  IF
THE HIGHEST COURT OF THE STATE TREATS THE FEDERAL QUESTION AS PROPERLY
BEFORE IT, AND DECIDES THE QUESTION, THE QUESTION IS REVIEWABLE HERE,
REGARDLESS OF THE MANNER IN WHICH IT WAS RAISED IN THE INFERIOR COURTS
OF THE STATE.  SEE WHITNEY V. CALIFORNIA, 274 U.S. 357, 361, AND CASES
THERE CITED. 

FN4  HEBERT V. LOUISIANA, 272 U.S. 312, 316; PALKO V. CONNECTICUT,
302 U.S. 319; ADAMSON V. CALIFORNIA, 332 U.S. 46, 66. 

FN5  GITLOW V. NEW YORK, 268 U.S. 652, 666, 672; NEAR V. MINNESOTA,
283 U.S. 697, 707; PENNEKAMP V. FLORIDA, 328 U.S. 331, 335. 

FN6 DE JONGE V. OREGON, 299 U.S. 353, 365: 

"THE GREATER THE IMPORTANCE OF SAFEGUARDING THE COMMUNITY FROM
INCITEMENTS TO THE OVERTHROW OF OUR INSTITUTIONS BY FORCE AND VIOLENCE,
THE MORE IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE THE
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN
ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE
END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND
THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN
LIES THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF
CONSTITUTIONAL GOVERNMENT." 

FN7  SEE 333 U.S., AT 520.  CF. THORNHILL V. ALABAMA, 310 U.S. 88;
HERNDON V. LOWRY, 301 U.S. 242, 263-264. 

FN8  283 U.S., AT 361: 

"ANY PERSON WHO DISPLAYS A RED FLAG, BANNER OR BADGE OR ANY FLAG,
BADGE, BANNER, OR DEVICE OF ANY COLOR OR FORM WHATEVER IN ANY PUBLIC
PLACE OR IN ANY MEETING PLACE OR PUBLIC ASSEMBLY, OR FROM OR ON ANY
HOUSE, BUILDING OR WINDOW AS A SIGN, SYMBOL OR EMBLEM OF OPPOSITION TO
ORGANIZED GOVERNMENT OR AS AN INVITATION OR STIMULUS TO ANARCHISTIC
ACTION OR AS AN AID TO PROPAGANDA THAT IS OF A SEDITIOUS CHARACTER IS
GUILTY OF A FELONY."  THEN SEC. 403A OF THE CALIF. PENAL CODE. 

FN9  283 U.S. AT 368.  SEE ALSO WILLIAMS V. NORTH CAROLINA, 317 U.S.
287, 291-292.  CF. THOMAS V. COLLINS, 323 U.S. 516, 529; CRAMER V.
UNITED STATES, 325 U.S. 1, 36, N. 45. 

FN10  SMITH-HURD ILL. ANN. STAT., 1936, C. 38, SEC. 402, QUOTED IN
MAJORITY OPINION AT N. 5. 

FN11  PEOPLE V. SIMCOX, 379 ILL. 347, 40 N.E.2D 525; PEOPLE V. WHITE
CIRCLE LEAGUE, 408 ILL. 564, 97 N.E.2D 811 (1951).  SEE ALSO FOX FILM
CORP. V. COLLINS, 236 ILL. APP. 281; BEVINS V. PRINDABLE, 39 F. SUPP.
708, AFF'D 314 U.S. 573. 

FN12  INDEED, IF THE ILLINOIS COURTS HAD BEEN INCLINED TO INTERPRET
THEIR STATUTE AS THIS COURT NOW INTERPRETS IT, THEY COULD HAVE DONE SO
ONLY BY READING OUT OF THEIR STATUTE THE DISJUNCTIVE CLAUSE "OR WHICH
IS PRODUCTIVE OF BREACH OF THE PEACE OR RIOTS."  (QUOTED AT P. 251 OF
MAJORITY OPINION.)  IF THE ILLINOIS COURTS WERE INCLINED TO READ THIS
DISJUNCTIVE AS A CONJUNCTIVE, THEY WOULD PRESUMABLY HAVE REVERSED
BEAUHARNAIS' CONVICTION, FOR THE INFORMATION IN THIS CASE DID NOT
CHARGE THAT PUBLICATION OF HIS LITHOGRAPH WOULD BE PRODUCTIVE OF BREACH
OF THE PEACE OR RIOTS. 

FN13  "  ... THE CONSTITUTION NEVER INTENDED TO INVEST JUDGES WITH A
DISCRETION WHICH CANNOT BE TRIED AND MEASURED BY THE PLAIN AND PALPABLE
STANDARD OF LAW  ...  .  ON A SPECIAL VERDICT FOR MURDER, THE LIFE OF
THE PRISONER DOES NOT DEPEND UPON THE RELIGIOUS, MORAL, OR
PHILOSOPHICAL IDEAS OF THE JUDGES  ...  .  IF HE IS CONDEMNED  ...  HIS
CONDUCT IS BROUGHT TO A PRECISE, CLEAR, INTELLIGIBLE STANDARD, AND
CAUTIOUSLY MEASURED BY IT:  IT IS THE LAW, THEREFORE, AND NOT THE
JUDGE, WHICH CONDEMNS HIM  ...  ." 

ARGUMENT IN THE KING'S BENCH IN THE DEAN OF ST. ASAPH'S CASE (1783
1784).  21 HOWELL'S STATE TRIALS 847, 1006. 

MR. JUSTICE DOUGLAS, DISSENTING. 

HITLER AND HIS NAZIS SHOWED HOW EVIL A CONSPIRACY COULD BE WHICH WAS
AIMED AT DESTROYING A RACE BY EXPOSING IT TO CONTEMPT, DERISION, AND
OBLOQUY.  I WOULD BE WILLING TO CONCEDE THAT SUCH CONDUCT DIRECTED AT A
RACE OR GROUP IN THIS COUNTRY COULD BE MADE AN INDICTABLE OFFENSE.  FOR
SUCH A PROJECT WOULD BE MORE THAN THE EXERCISE OF FREE SPEECH.  LIKE
PICKETING, IT WOULD BE FREE SPEECH PLUS. 

I WOULD ALSO BE WILLING TO CONCEDE THAT EVEN WITHOUT THE ELEMENT OF
CONSPIRACY THERE MIGHT BE TIMES AND OCCASIONS WHEN THE LEGISLATIVE OR
EXECUTIVE BRANCH MIGHT CALL A HALT TO INFLAMMATORY TALK, SUCH AS THE
SHOUTING OF "FIRE" IN A SCHOOL OR A THEATRE. 

MY VIEW IS THAT IF IN ANY CASE OTHER PUBLIC INTERESTS ARE TO OVERRIDE
THE PLAIN COMMAND OF THE FIRST AMENDMENT, THE PERIL OF SPEECH MUST BE
CLEAR AND PRESENT, LEAVING NO ROOM FOR ARGUMENT, RAISING NO DOUBTS AS
TO THE NECESSITY OF CURBING SPEECH IN ORDER TO PREVENT DISASTER. 

THE FIRST AMENDMENT IS COUCHED IN ABSOLUTE TERMS - FREEDOM OF SPEECH
SHALL NOT BE ABRIDGED.  SPEECH HAS THEREFORE A PREFERRED POSITION (FN1)
AS CONTRASTED TO SOME OTHER CIVIL RIGHTS.  FOR EXAMPLE, PRIVACY,
EQUALLY SACRED TO SOME, IS PROTECTED BY THE FOURTH AMENDMENT ONLY
AGAINST UNREASONABLE SEARCHES AND SEIZURES.  THERE IS ROOM FOR
REGULATION OF THE WAYS AND MEANS OF INVADING PRIVACY.  NO SUCH LEEWAY
IS GRANTED THE INVASION OF THE RIGHT OF FREE SPEECH GUARANTEED BY THE
FIRST AMENDMENT.  UNTIL RECENT YEARS THAT HAD BEEN THE COURSE AND
DIRECTION OF CONSTITUTIONAL LAW.  YET RECENTLY THE COURT IN THIS AND IN
OTHER CASES (FN2) HAS ENGRAFTED THE RIGHT OF REGULATION ONTO THE FIRST
AMENDMENT BY PLACING IN THE HANDS OF THE LEGISLATIVE BRANCH THE RIGHT
TO REGULATE "WITHIN REASONABLE LIMITS" THE RIGHT OF FREE SPEECH.  THIS
TO ME IS AN OMINOUS AND ALARMING TREND.  THE FREE TRADE IN IDEAS WHICH
THE FRAMERS OF THE CONSTITUTION VISUALIZED DISAPPEARS.  IN ITS PLACE
THERE IS SUBSTITUTED A NEW ORTHODOXY - AN ORTHODOXY THAT CHANGES WITH
THE WHIMS OF THE AGE OR THE DAY, AN ORTHODOXY WHICH THE MAJORITY BY
SOLEMN JUDGMENT PROCLAIMS TO BE ESSENTIAL TO THE SAFETY, WELFARE,
SECURITY, MORALITY, OR HEALTH OF SOCIETY.  FREE SPEECH IN THE
CONSTITUTIONAL SENSE DISAPPEARS.  LIMITS ARE DRAWN - LIMITS DICTATED BY
EXPEDIENCY, POLITICAL OPINION, PREJUDICES OR SOME OTHER DESIDERATUM OF
LEGISLATIVE ACTION. 

AN HISTORIC ASPECT OF THE ISSUE OF JUDICIAL SUPREMACY WAS THE EXTENT
TO WHICH LEGISLATIVE JUDGMENT WOULD BE SUPREME IN THE FIELD OF SOCIAL
LEGISLATION.  THE VAGUE CONTOURS OF THE DUE PROCESS CLAUSE WERE USED TO
STRIKE DOWN LAWS DEEMED BY THE COURT TO BE UNWISE AND IMPROVIDENT. 
(FN3)  THAT TREND HAS BEEN REVERSED.  IN MATTERS RELATING TO BUSINESS,
FINANCE, INDUSTRIAL AND LABOR CONDITIONS, HEALTH AND THE PUBLIC
WELFARE, GREAT LEEWAY IS NOW GRANTED THE LEGISLATURE, (FN) FOR THERE IS
NO GUARANTEE IN THE CONSTITUTION THAT THE STATUS QUO WILL BE PRESERVED
AGAINST REGULATION BY GOVERNMENT.  FREEDOM OF SPEECH, HOWEVER, RESTS ON
A DIFFERENT CONSTITUTIONAL BASIS.  THE FIRST AMENDMENT SAYS THAT
FREEDOM OF SPEECH, FREEDOM OF PRESS, AND THE FREE EXERCISE OF RELIGION
SHALL NOT BE ABRIDGED.  THAT IS A NEGATION OF POWER ON THE PART OF EACH
AND EVERY DEPARTMENT OF GOVERNMENT.  FREE SPEECH, FREE PRESS, FREE
EXERCISE OF RELIGION ARE PLACED SEPARATE AND APART; THEY ARE ABOVE AND
BEYOND THE POLICE POWER; THEY ARE NOT SUBJECT TO REGULATION IN THE
MANNER OF FACTORIES, SLUMS, APARTMENT HOUSES, PRODUCTION OF OIL, AND
THE LIKE.    THE COURT IN THIS AND IN OTHER CASES PLACES SPEECH UNDER
AN EXPANDING LEGISLATIVE CONTROL.  TODAY A WHITE MAN STANDS CONVICTED
FOR PROTESTING IN UNSEEMINGLY LANGUAGE AGAINST OUR DECISIONS
INVALIDATING RESTRICTIVE COVENANTS.  TOMORROW A NEGRO WILL BE HALED
BEFORE A COURT FOR DENOUNCING LYNCH LAW IN HEATED TERMS.  FARM LABORERS
IN THE WEST WHO COMPETE WITH FIELD HANDS DRIFTING UP FROM MEXICO;
WHITES WHO FEEL THE PRESSURE OF ORIENTALS; A MINORITY WHICH FINDS
EMPLOYMENT GOING TO MEMBERS OF THE DOMINANT RELIGIOUS GROUP - ALL OF
THESE ARE CAUGHT IN THE MESH OF TODAY'S DECISION.  DEBATE AND ARGUMENT
EVEN IN THE COURTROOM ARE NOT ALWAYS CALM AND DISPASSIONATE.  EMOTIONS
SWAY SPEAKERS AND AUDIENCES ALIKE.  INTEMPERATE SPEECH IS A DISTINCTIVE
CHARACTERISTIC OF MAN.  HOTHEADS BLOW OFF AND RELEASE DESTRUCTIVE
ENERGY IN THE PROCESS.  THEY SHOUT AND RAVE, EXAGGERATING WEAKNESSES,
MAGNIFYING ERROR, VIEWING WITH ALARM.  SO IT HAS BEEN FROM THE
BEGINNING; AND SO IT WILL BE THROUGHOUT TIME.  THE FRAMERS OF THE
CONSTITUTION KNEW HUMAN NATURE AS WELL AS WE DO.  THEY TOO HAVE LIVED
IN DANGEROUS DAYS; THEY TOO KNEW THE SUFFOCATING INFLUENCE OF ORTHODOXY
AND STANDARDIZED THOUGHT.  THEY WEIGHED THE COMPULSIONS FOR RESTRAINED
SPEECH AND THOUGHT AGAINST THE ABUSES OF LIBERTY.  THEY CHOSE LIBERTY. 
THAT SHOULD BE OUR CHOICE TODAY NO MATTER HOW DISTASTEFUL TO US THE
PAMPHLET OF BEAUHARNAIS MAY BE.  IT IS TRUE THAT THIS IN ONLY ONE
DECISION WHICH MAY LATER BE DISTINGUISHED OR CONFINED TO NARROW
LIMITS.  BUT IT REPRESENTS A PHILOSOPHY AT WAR WITH THE FIRST AMENDMENT
- A CONSTITUTIONAL INTERPRETATION WHICH PUTS FREE SPEECH UNDER THE
LEGISLATIVE THUMB.  IT REFLECTS AN INFLUENCE MOVING EVER DEEPER INTO
OUR SOCIETY.  IT IS NOTICE TO THE LEGISLATURES THAT THEY HAVE THE POWER
TO CONTROL UNPOPULAR BLOCS.  IT IS A WARNING TO EVERY MINORITY THAT
WHEN THE CONSTITUTION GUARANTEES FREE SPEECH IT DOES NOT MEAN WHAT IT
SAYS. 

FN1  MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 115; THOMAS V. COLLINS,
323 U.S. 516, 530; SAIA V. NEW YORK, 334 U.S. 558, 561. 

FN2  DENNIS V. UNITED STATES, 341 U.S. 494; FEINER V. NEW YORK, 340
U.S. 315.  CF. BREARD V. ALEXANDRIA, 341 U.S. 622; AMERICAN
COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382; OSMAN V. DOUDS, 339 U.S.
846. 

FN3  LOCHNER V. NEW YORK, 198 U.S. 45; COPPAGE V. KANSAS, 236 U.S. 1;
RIBNIK V. MCBRIDE, 277 U.S. 350. 

FN4  NEBBIA V. NEW YORK, 291 U.S. 502; WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379; LINCOLN UNION V. NORTHWESTERN CO., 335 U.S. 525;
DAY-BRITE LIGHTING, INC. V. MISSOURI, 342 U.S. 421. 

MR. JUSTICE JACKSON, DISSENTING. 

AN ILLINOIS ACT, CONSTRUED BY ITS SUPREME COURT TO BE A "GROUP LIBEL"
STATUTE, HAS BEEN USED TO PUNISH CRIMINALLY THE AUTHOR AND DISTRIBUTOR
OF AN OBNOXIOUS LEAFLET ATTACKING THE NEGRO RACE.  HE ANSWERS THAT, AS
APPLIED, THE ACT DENIES A LIBERTY SECURED TO HIM BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  WHAT IS THE LIBERTY WHICH THAT
CLAUSE UNDERWRITES? 

THE SPECTRUM OF VIEWS EXPRESSED BY MY SENIORS SHOWS THAT DISAGREEMENT
AS TO THE SCOPE AND EFFECT OF THIS AMENDMENT UNDERLIES THIS, AS IT HAS
MANY OTHER, DIVISION OF THE COURT.  ALL AGREE THAT THE FOURTEENTH
AMENDMENT DOES CONFINE THE POWER TO THE STATE TO MAKE PRINTED WORDS
CRIMINAL.  WHENCE WE ARE TO DERIVE METES AND BOUNDS OF THE STATE POWER
IS A SUBJECT TO THE CONFUSION OF WHICH, I REGRET TO SAY, I HAVE
CONTRIBUTED - COMFORTED IN THE ACKNOWLEDGEMENT, HOWEVER, BY RECALLING
THAT THIS AMENDMENT IS SO ENIGMATIC AND ABSTRUSE THAT JUDGES MORE
EXPERIENCED THAN I HAVE HAD TO REVERSE THEMSELVES AS TO ITS EFFECT ON
STATE POWER. 

THE ASSUMPTION OF OTHER DISSENTS IS THAT THE "LIBERTY" WHICH THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PROTECTS AGAINST DENIAL BY
THE STATES IS THE LITERAL AND IDENTICAL "FREEDOM OF SPEECH OR OF THE
PRESS" WHICH THE FIRST AMENDMENT FORBIDS ONLY CONGRESS TO ABRIDGE.  THE
HISTORY OF CRIMINAL LIBEL IN AMERICA CONVINCES ME THAT THE FOURTEENTH
AMENDMENT DID NOT "INCORPORATE" THE FIRST, THAT THE POWERS OF CONGRESS
AND OF THE STATES OVER THIS SUBJECT ARE NOT OF THE SAME DIMENSIONS, AND
THAT BECAUSE CONGRESS PROBABLY COULD NOT ENACT THIS LAW IT DOES NOT
FOLLOW THAT THE STATES MAY NOT. 

                 I. 

AS A LIMITATION UPON POWER TO PUNISH WRITTEN OR SPOKEN WORDS,
FOURTEENTH AMENDMENT "LIBERTY" IN ITS CONTEXT OF STATE POWERS AND
FUNCTIONS HAS MEANT AND SHOULD MEAN SOMETHING QUITE DIFFERENT FROM
"FREEDOM" IN ITS CONTEXT OF FEDERAL POWERS AND FUNCTIONS.  (FN1) 

THE COURT HAS NEVER SUSTAINED A FEDERAL CRIMINAL LIBEL ACT.  ONE
ACT.  (FN2)  WHILE THERE WERE CONVICTIONS UNDER IT, NO ATTACK ON ITS
VALIDITY REACHED THIS COURT.  I THINK TODAY'S BETTER OPINION REGARDS
THE ENACTMENT AS A BREACH OF THE FIRST AMENDMENT AND CERTAINLY MR.
JUSTICE HOLMES AND MR. JUSTICE BRANDEIS THOUGHT SO.  (FN3)  BUT EVEN IN
THE ABSENCE OF JUDICIAL CONDEMNATION, THE POLITICAL DISAPPROVAL OF THE
SEDITION ACT WAS SO EMPHATIC AND SUSTAINED THAT FEDERAL PROSECUTION OF
THE PRESS CEASED FOR A CENTURY.  IT WAS RESUMED WITH INDICTMENT OF THE
INDIANAPOLIS NEWS AND THE NEW YORK WORLD FOR DISCLOSURES AND CRITICISMS
OF THE PANAMAL CANAL ACQUISITION.  BOTH WERE INDICTED IN THE DISTRICT
OF COLUMBIA AND UNDER THE DISTRICT CODE, ON THE GROUND THAT SOME COPIES
CIRCULATED THERE.  THAT PROSECUTION COLLAPSED WHEN JUDGE ANDERSON
REFUSED THE GOVERNMENT'S APPLICATION TO REMOVE THE INDIANA DEFENDANTS
TO THE DISTRICT OF COLUMBIA FOR TRIAL  (FN4) 

THE WORLD, CIRCULATED AT WEST POINT, WAS INDICTED IN NEW YORK ON THE
THEORY THAT AN 1825 ACT TO PROTECT FORTIFICATIONS ASSIMILATED THE NEW
YORK STATE LAW PUNISHING CRIMINAL LIBEL.  THAT VENTURE LIKEWISE CAME TO
GRIEF WHEN JUDGE HOUGH REJECTED THAT CONSTRUCTION OF THE FEDERAL
STATUTE AND WAS UPHELD BY THIS COURT.  UNITED STATES V. PRESS
PUBLISHING CO., 219 U.S. 1 (1911).  WHILE THERE HAS BEEN A DEMAND FROM
OFFICIAL SOURCES FOR A RESUMPTION OF CRIMINAL LIBEL PROSECUTION, IT HAS
NOT BEEN ACCEDED TO.  (FN5)  THUS, WHILE THE JEOPARDY OF SUCH FEDERAL
PROSECUTIONS HAS NEVER BEEN REMOVED BY ANY DECISION OF THIS COURT, I
SHOULD THINK THE VALIDITY OF A FEDERAL ENACTMENT SUCH AS THIS WOULD BE
EXTREMELY DOUBTFUL, TO SAY THE LEAST. 

THE EFFECT OF THE FIRST AMENDMENT ON CONGRESSIONAL POWER TO MAKE
SEDITIOUS UTTERANCE CRIMINAL DID RECEIVE CONSIDERATION IN THE AFTERMATH
OF THE FIRST WORLD WAR.  IN SUCH A CASE, MR. JUSTICE HOLMES FORMULATED
FOR THE COURT AS "THE QUESTION IN EVERY CASE" THE "CLEAR AND PRESENT
DANGER" TEST.  SCHENCK V. UNITED STATES, 249 U.S. 47, 52.  HE AND MR.
JUSTICE BRANDEIS ADHERED TO IT AS A "RULE OF REASON," DISSENTING WHEN
THEY THOUGHT THE REST OF THE COURT APOSTATE.  ABRAMS V. UNITED STATES,
250 U.S. 616, 627, 628; SCHAEFER V. UNITED STATES, 251 U.S. 466, 482. 

ONLY AFTER RESEARCH AND DELIBERATION IN THESE CASES HAD SHARPENED
THEIR PERCEPTION DID THESE JUSTICES FACE THE FREE-SPEECH ISSUE AS TO
STATE POWER WHICH MR. JUSTICE HOLMES FIRST ADVERTED TO, BUT LEFT
UNDECIDED, IN PATTERSON V. COLORADO, 205 U.S. 454.  IN 1922 THEY JOINED
THE COURT'S FIRST DECISION ON THE SUBJECT, WHICH DECLARED THAT "  ...
NEITHER THE FOURTEENTH AMENDMENT NOR ANY OTHER PROVISION OF THE
CONSTITUTION OF THE UNITED STATES IMPOSES UPON THE STATES ANY
RESTRICTIONS ABOUT 'FREEDOM OF SPEECH'  ...  ."  PRUDENTIAL INSURANCE
CO. V. CHEEK, 259 U.S. 530, 543. 

HOWEVER, THESE TWO JUSTICES, WHO MADE THE ONLY ORIGINAL CONTRIBUTION
TO LEGAL THOUGHT ON THE DIFFICULT PROBLEMS BOUND UP IN THESE
AMENDMENTS, SOON REVERSED AND TOOK THE VIEW THAT THE FOURTEENTH
AMENDMENT DID IMPOSE SOME RESTRICTIONS UPON THE STATES.  BUT IT WAS NOT
PREMISED UPON THE FIRST AMENDMENT NOR UPON ANY THEORY THAT IT WAS
INCORPORATED IN THE FOURTEENTH.  WHAT THEY WROTE, WITH CARE AND
CIRCUMSPECTION, I ACCEPT AS THE WISE AND HISTORICALLY CORRECT VIEW OF
THE FOURTEENTH AMENDMENT.  IT WAS: 

"THE GENERAL PRINCIPLE OF FREE SPEECH, IT SEEMS TO ME, MUST BE TAKEN
TO BE INCLUDED IN THE FOURTEENTH AMENDMENT, IN VIEW OF THE SCOPE THAT
HAS BEEN GIVEN TO THE WORD 'LIBERTY' AS THERE USED, ALTHOUGH PERHAPS IT
MAY BE ACCEPTED WITH A SOMEWHAT LARGER LATITUDE OF INTERPRETATION THAN
IS ALLOWED TO CONGRESS BY THE SWEEPING LANGUAGE THAT GOVERNS OR OUGHT
TO GOVERN THE LAWS OF THE UNITED STATES."  GITLOW V. NEW YORK, 268 U.S.
652, 672. 

THAT REASONING WAS ECHOED SO RECENTLY AS 1937, WHEN THE COURT
EXPLICITLY REJECTED THE THEORY OF INCORPORATION AND, THROUGH MR.
JUSTICE CARDOZO, ANNOUNCED A VIEW, UNANIMOUS EXCEPT FOR MR. JUSTICE
BUTLER, THAT THE FOURTEENTH DID NOT DEFLECT AGAINST THE STATES THE
LITERAL LANGUAGE OF AMENDMENTS DESIGNED TO CIRCUMSCRIBE FEDERAL POWER
BUT QUALIFIED STATE POWER ONLY BY SUCH GENERAL RESTRAINTS AS ARE
ESSENTIAL TO "THE CONCEPT OF ORDERED LIBERTY."  PALKO V. CONNECTICUT,
302 U.S. 319, 324-325. 

IT IS CLEAR THAT THESE DO NOT PROSCRIBE STATE CRIMINAL LIBEL ACTS. 
JUSTICES HOLMES AND BRANDEIS IN 1931 JOINED CHIEF JUSTICE HUGHES, WHO
SPOKE FOR THE COURT, IN STRIKING DOWN A STATE ACT BECAUSE IT AUTHORIZED
RESTRAINT BY INJUNCTION PREVIOUS TO PUBLICATION.  HE SAID:  "FOR
WHATEVER WRONG THE APPELLANT HAS COMMITTED OR MAY COMMIT, BY HIS
PUBLICATIONS, THE STATE APPROPRIATELY AFFORDS BOTH PUBLIC AND PRIVATE
REDRESS BY ITS LIBEL LAWS."  THIS WAS AMPLIFIED:  "BUT IT IS RECOGNIZED
THAT PUNISHMENT FOR THE ABUSE OF THE LIBERTY ACCORDED TO THE PRESS IS
ESSENTIAL TO THE PROTECTION OF THE PUBLIC, AND THAT THE COMMON LAW
RULES THAT SUBJECT THE LIBELER TO RESPONSIBILITY FOR THE PUBLIC
OFFENSE, AS WELL AS FOR THE PRIVATE INJURY, ARE NOT ABOLISHED BY THE
PROTECTION EXTENDED IN OUR CONSTITUTIONS ...  .  THE LAW OF CRIMINAL
LIBEL RESTS UPON THAT SECURE FOUNDATION."  NEAR V. MINNESOTA, 283 U.S.
697, 715. 

SO RECENTLY AS 1942, A UNANIMOUS COURT, SPEAKING OF STATE POWER, SAID
THAT PUNISHMENT OF LIBELOUS WORDS "WHICH BY THEIR VERY UTTERANCE
INFLICT INJURY OR TEND TO INCITE AN IMMEDIATE BREACH OF THE PEACE" HAD
NEVER BEEN THOUGHT TO RAISE ANY CONSTITUTIONAL PROBLEM.  CHAPLINSKY V.
NEW HAMPSHIRE, 315 U.S. 568, 571-572. 

MORE THAN FORTY STATE CONSTITUTIONS, WHILE EXTENDING BROAD
PROTECTIONS TO SPEECH AND PRESS, RESERVE A RESPONSIBILITY FOR THEIR
ABUSE AND IMPLICITLY OR EXPLICITLY RECOGNIZE VALIDITY OF CRIMINAL LIBEL
LAWS.  (FN6)  WE ARE JUSTIFIED IN ASSUMING THAT THE MEN WHO SPONSORED
THE FOURTEENTH AMENDMENT IN CONGRESS, AND THOSE WHO RATIFIED IT IN THE
STATE LEGISLATURES, KNEW OF SUCH PROVISIONS THEN IN MANY OF THEIR STATE
CONSTITUTIONS.  CERTAINLY THEY WERE NOT CONSCIOUSLY CANCELING THEM OR
CALLING THEM INTO QUESTION, OR WE WOULD HAVE SOME EVIDENCE OF IT.
CONGRESSES, DURING THE PERIOD WHILE THIS AMENDMENT WAS BEING CONSIDERED
OR WAS BUT FRESHLY ADOPTED, APPROVED CONSTITUTIONS OF "RECONSTRUCTED"
STATES THAT EXPRESSLY MENTIONED STATE LIBEL LAWS, (FN7) AND ALSO
APPROVED SIMILAR CONSTITUTIONS FOR STATES ERECTED OUT OF THE FEDERAL
DOMAIN.  (FN8) 

CERTAINLY THIS TOLERANCE OF STATE LIBEL LAWS BY THE VERY AUTHORS AND
PARTISANS OF THE FOURTEENTH AMENDMENT SHOWS EITHER THAT THEY WERE NOT
INTENDING TO INCORPORATE THE FIRST AMENDMENT OR THAT THEY BELIEVED IT
WOULD NOT PREVENT FEDERAL LIBEL LAWS.  ADOPTION OF THE INCORPORATION
THEORY TODAY WOULD LEAD TO THE DILEMMA OF EITHER CONFINING THE STATES
AS CLOSELY AS THE CONGRESS OR GIVING THE FEDERAL GOVERNMENT THE
LATITUDE APPROPRIATE TO STATE GOVERNMENTS.  THE TREATMENT OF LIBEL
POWERS CORROBORATES THE CONCLUSIONS AGAINST THE INCORPORATIONIST THEORY
REACHED BY THE MOST COMPREHENSIVE AND OBJECTIVE STUDIES OF THE ORIGIN
AND ADOPTION OF THE FOURTEENTH AMENDMENT.  (FN9) 

THE INAPPROPRIATENESS OF A SINGLE STANDARD FOR RESTRICTING STATE AND
NATION IS INDICATED BY THE DISPARITY BETWEEN THEIR FUNCTIONS AND DUTIES
IN RELATION TO THOSE FREEDOMS.  CRIMINALITY OF DEFAMATION IS PREDICATED
UPON POWER EITHER TO PROTECT THE PRIVATE RIGHT TO ENJOY INTEGRITY OF
REPUTATION OR THE PUBLIC RIGHT TO TRANQUILLITY.  NEITHER OF THESE ARE
OBJECTS OF FEDERAL COGNIZANCE EXCEPT WHEN NECESSARY TO THE
ACCOMPLISHMENT OF SOME DELEGATED POWER, SUCH AS PROTECTION OF
INTERSTATE COMMERCE.  WHEN THE FEDERAL GOVERNMENT PUTS LIBERTY OF PRESS
IN ONE SCALE, IT HAS A VERY LIMITED DUTY TO PERSONAL REPUTATION OR
LOCAL TRANQUILLITY TO WEIGHT AGAINST IT IN THE OTHER.  BUT STATE ACTION
AFFECTING SPEECH OR PRESS CAN AND SHOULD BE WEIGHED AGAINST AND
RECONCILED WITH THESE CONFLICTING SOCIAL INTERESTS. 

FOR THESE REASONS I SHOULD NOT, UNLESS CLEARLY REQUIRED, CONFIRM TO
THE FEDERAL GOVERNMENT SUCH LATITUDE AS I THINK A STATE REASONABLY MAY
REQUIRE FOR ORDERLY GOVERNMENT OF ITS MANIFOLD CONCERNS.  THE CONVERSE
OF THE PROPOSITION IS THAT I WOULD NOT LIMIT THE POWER OF THE STATE
WITH THE SEVERITY APPROPRIATELY PRESCRIBED FOR FEDERAL POWER. 

AS THE PRINCIPLE BY WHICH TO JUDGE THE CONSTITUTIONALITY OF THIS
STATUTE, I ACCEPT THE DISSENT IN GITLOW AND THE DECISION IN PALKO. 

  II. 

WHAT RESTRAINTS UPON STATE POWER TO PUNISH CRIMINAL LIBEL ARE IMPLIED
BY THE "CONCEPT OF ORDERED LIBERTY"?  EXPERIENCE BY ANGLO-SAXON PEOPLES
WITH DEFAMATION AND LAWS TO PUNISH IT EXTENDS OVER CENTURIES AND THE
STATUTE AND CASE BOOKS EXHIBIT ITS TEACHINGS.  IF ONE CAN CLAIM TO
ANNOUNCE THE JUDGMENT OF LEGAL HISTORY ON ANY SUBJECT, IT IS THAT
CRIMINAL LIBEL LAWS ARE CONSISTENT WITH THE CONCEPT OF ORDERED LIBERTY
ONLY WHEN APPLIED WITH SAFEGUARDS EVOLVED TO PREVENT THEIR INVASION OF
FREEDOM OF EXPRESSION. 

OPPRESSIVE APPLICATION OF THE ENGLISH LIBEL LAWS WAS PARTIALLY
CHECKED WHEN FOX'S LIBEL ACT OF 1792 ALLOWED THE JURY TO DETERMINE
WHETHER AN ACCUSED PUBLICATION WAS LIBELOUS IN CHARACTER AND MORE
COMPLETELY WHEN LORD CAMPBELL'S LIBEL ACT OF 1843 ALLOWED TRUTH TO BE
PROVED AS A DEFENSE.    AMERICAN EXPERIENCE TEACHES SIMILAR LESSONS. 
THE LEADING STATE CASE IS PEOPLE V. CROSWELL, 3 JOHNS.  (N.Y.)  337.
SINCE, AS THE OPINION OF THIS COURT NOW POINTS OUT, THE JEFFERSONIAN'S
OBJECTION TO FEDERAL SEDITION PROSECUTIONS WAS LARGELY FEAR OF FEDERAL
USURPATION OF STATE POWERS OVER THE SUBJECT, IT WAS CONSISTENT FOR THEM
TO PROSECUTE LIBELS UNDER STATE LAW.  CROSWELL, PUBLISHER OF THE APTLY
NAMED WASP, WAS INDICTED FOR LIBELING THOMAS JEFFERSON BY REPRESENTING
HIM AS UNWORTHY OF THE CONFIDENCE, RESPECT, AND ATTACHMENT OF THE
PEOPLE.  THE TRIAL JUDGE PRONOUNCED HIS STATEMENTS AS LIBELOUS AS A
MATTER OF LAW AND ALLOWED THE JURY TO DECIDE NO QUESTION EXCEPT WHETHER
THE ACCUSED HAD PUBLISHED THEM.  THE DEFENDANT WAS CONVICTED AND ON HIS
APPEAL, ARGUED BY ALEXANDER HAMILTON, THE APPELLATE COURT DIVIDED
EQUALLY.  JUSTICE KENT, HOWEVER, FILED A CHARACTERISTICALLY LEARNED AND
VIGOROUS OPINION THAT THE TRIAL COURT MUST SUBMIT THE LIBELOUS
CHARACTER OF THE ARTICLE AND LIBELOUS INTENT OF ITS PRINTER TO DECISION
BY THE JURY, WHICH WAS ENTITLED TO DETERMINE BOTH LAW AND FACT.  THE
PUBLIC RESPONSE WAS SUCH THAT AN EARLY SESSION OF THE LEGISLATURE
SUBSTANTIALLY ENACTED KENT'S CONTENTIONS.  INASMUCH AS NO JUDGMENT HAD
BEEN ENTERED UPON THE EARLIER EQUAL DIVISION, THE COURT AT ITS AUGUST
1805 TERM, "IN CONSEQUENCE OF THIS DECLARATORY STATUTE," UNANIMOUSLY
AWARDED A NEW TRIAL.  (FN10) 

THE NEW YORK CONSTITUTION AT THAT TIME CONTAINED NO FREE SPEECH
PROVISION BUT THE CASE LED TO A PROVISION INCLUDED IN THE CONSTITUTION
OF 1821 WHICH BOTH FOLLOWED FOX'S LIBEL ACT AND ANTICIPATED LORD
CAMPBELL'S ACT AND HAS REMAINED IN THE SEVERAL CONSTITUTIONS OF THAT
STATE SINCE: 

"EVERY CITIZEN MAY FREELY SPEAK, WRITE AND PUBLISH HIS SENTIMENTS ON
ALL SUBJECTS, BEING RESPONSIBLE FOR THE ABUSE OF THAT RIGHT; AND NO LAW
SHALL BE PASSED TO RESTRAIN OR ABRIDGE THE LIBERTY OF SPEECH OR OF THE
PRESS.  IN ALL CRIMINAL PROSECUTIONS OR INDICTMENTS FOR LIBELS, THE
TRUTH MAY BE GIVEN IN EVIDENCE TO THE JURY; AND IF IT SHALL APPEAR TO
THE JURY THAT THE MATTER CHARGED AS LIBELOUS IS TRUE, AND WAS PUBLISHED
WITH GOOD MOTIVES AND FOR JUSTIFIABLE ENDS, THE PARTY SHALL BE
ACQUITTED; AND THE JURY SHALL HAVE THE RIGHT TO DETERMINE THE LAW AND
THE FACT."  (FN11) 

IT WOULD NOT BE AN EXAGGERATION TO SAY THAT, BASICALLY, THIS
PROVISION OF THE NEW YORK CONSTITUTION STATES THE COMMON SENSE OF
AMERICAN CRIMINAL LIBEL LAW.  TWENTY-FOUR STATES OF THE UNION WHOSE
CONSTITUTIONS WERE FRAMED LATER SUBSTANTIALLY ADOPTED IT.  (FN12)
TWELVE STATES PROVIDE THAT PRESS AND SPEECH SHALL BE FREE BUT THERE
SHALL BE RESPONSIBILITY FOR THE ABUSE.  (FN13)  FIVE OTHERS PROVIDE
SUBSTANTIALLY THE SAME BUT ADD THAT TRUTH MAY BE GIVEN IN EVIDENCE IN A
LIBEL PROSECUTION.  (FN14)  ONLY FIVE STATES, WHOSE CONSTITUTIONS WERE
FRAMED EARLIER, WERE CONTENT WITH THE GENERALITY ABOUT THE FREE PRESS
SIMILAR TO THAT OF MASSACHUSETTS.  (FN15)  BUT ALL OF THESE STATES,
APART FROM CONSTITUTIONAL PROVISION, HAVE BY DECISIONAL LAW RECOGNIZED
THE VALIDITY OF CRIMINAL LIBEL PROSECUTIONS.  (FN16) 

BECAUSE OF THESE SAFEGUARDS, STATE LIBEL LAWS HAVE PRESENTED NO
THREAT TO A FREE PRESS COMPARABLE TO THAT FROM FEDERAL SOURCES AND HAVE
NOT PROVED INCONSISTENT WITH FUNDAMENTAL LIBERTIES.  ATTACKS ON THE
PRESS BY STATES WHICH WERE FRUSTRATED BY THIS COURT IN NEAR V.
MINNESOTA, SUPRA, AND GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233,
WERE NOT BY LIBEL LAWS.  FOR NEAR A CENTURY AND A HALF THIS COURT'S
DECISIONS LEFT STATE CRIMINAL LIBEL PROSECUTIONS ENTIRELY FREE OF
FEDERAL CONSTITUTIONAL LIMITATIONS.  IT IS A MATTER OF NOTORIETY THAT
THE PRESS OFTEN HAS PROVOKED HOSTILITY, THAT EDITORS HAVE BEEN MOBBED
AND HORSEWHIPPED, BUT CRIMINAL LIBEL PROSECUTIONS HAVE NOT BEEN
FREQUENT AND, AS SAFEGUARDED BY STATE LAW, THEY HAVE BEEN SO INNOCUOUS
THAT CHRONICLES OF AMERICAN JOURNALISM GIVE THEM ONLY PASSING MENTION. 
(FN17) 

THIS COURT, BY CONSTRUCTION OF THE FOURTEENTH AMENDMENT, HAS IMPOSED
BUT ONE ADDITION TO THE SAFEGUARDS VOLUNTARILY TAKEN UPON THE STATES BY
THEMSELVES.  IT IS THAT WHERE EXPRESSION, ORAL OR PRINTED, IS PUNISHED,
ALTHOUGH IT HAS NOT ACTUALLY CAUSED INJURIES OR DISORDERS BUT IS
THOUGHT TO HAVE A TENDENCY TO DO SO, THE LIKELIHOOD OF SUCH CONSEQUENCE
MUST NOT BE REMOTE OR SPECULATIVE.  THAT IS THE "CLEAR AND PRESENT
DANGER" TEST WHICH MR. JUSTICE HOLMES AND MR. JUSTICE BRANDEIS,
EVENTUALLY WITH SUPPORT OF THE COURT, THOUGHT IMPLIED IN BOTH THE FIRST
(FN18) AND THE FOURTEENTH AMENDMENTS, (FN19) ALTHOUGH THE FORMER WAS
NOT BODILY BOUND UP IN THE LATTER.  ANY SUPERFICIAL INCONSISTENCY
BETWEEN APPLYING THE SAME STANDARD BUT PERMITTING A WIDER RANGE OF
ACTION TO THE STATES IS RESOLVED UPON REFERENCE TO THE LATTER PART OF
THE STATEMENT OF THE FORMULA:  CLEAR AND PRESENT DANGER OF THOSE
SUBSTANTIVE EVILS WHICH THE LEGISLATURE HAS A RIGHT TO PREVENT.  THE
EVILS AT WHICH CONGRESS MAY AIM, AND IN SO DOING COME INTO CONFLICT
WITH FREE SPEECH, WILL BE RELATIVELY FEW SINCE IT IS A GOVERNMENT OF
LIMITED POWERS.  BECAUSE THE STATES MAY REACH MORE EVILS, THEY WILL
HAVE WIDER RANGE TO PUNISH SPEECH WHICH PRESENTS CLEAR AND PRESENT
DANGER OF BRINGING ABOUT THOSE EVILS. 

IN FEW SUBJECTS SO MUCH AS LIBEL DOES LOCAL LAW, IN SPITE OF VARYING
HISTORICAL INFLUENCES, AFFORD A CONSENSUS OF AMERICAN LEGAL OPINION AS
TO WHAT IS REASONABLE AND ESSENTIAL TO THE CONCEPT OF ORDERED
GOVERNMENT.  THE BOUNDARIES ARE ROUGHLY OUTLINED, TO BE SURE, AND
CANNOT BE STATED OR APPLIED WITH MATHEMATICAL PRECISION, BUT THOSE
WIDELY ACCEPTED STATE CONSTITUTIONAL PROVISIONS ON WHICH IS
SUPERIMPOSED THE "CLEAR AND PRESENT DANGER" TEST FOR "TENDENCY" CASES
SEEM TO BE OUR BEST GUIDE. 

I AGREE WITH THE COURT THAT A STATE HAS POWER TO BRING CLASSES "OF ANY
RACE, COLOR, CREED, OR RELIGION" WITHIN THE PROTECTION OF ITS LIBEL
LAWS, IF INDEED TRADITIONAL FORMS DO NOT ALREADY ACCOMPLISH IT.  (FN20)
BUT I AM EQUALLY CLEAR THAT IN DOING SO IT IS ESSENTIAL TO OUR CONCEPT
OF ORDERED LIBERTY THAT THE STATE ALSO PROTECT THE ACCUSED BY THOSE
SAFEGUARDS THE NECESSITY FOR WHICH IS VERIFIED BY LEGAL HISTORY. 

                       III. 

THE ILLINOIS STATUTE, AS APPLIED IN THIS CASE, SEEMS TO ME TO HAVE
DISPENSED WITH ACCEPTED SAFEGUARDS FOR THE ACCUSED.  TRIAL OF THIS CASE
OMINOUSLY PARALLELS THE TRIAL OF PEOPLE V. CROSWELL, SUPRA, IN THAT THE
ILLINOIS COURT HERE INSTRUCTED THE JURY, IN SUBSTANCE, THAT IF IT FOUND
THAT DEFENDANT PUBLISHED THIS LEAFLET HE MUST BE FOUND GUILTY OF
CRIMINAL LIBEL. 

RULINGS OF THE TRIAL COURT PRECLUDED THE EFFORT TO JUSTIFY STATEMENTS
OF FACT BY PROVING THEIR TRUTH.  THE MAJORITY OPINION CONCEDES THE
UNVARYING RECOGNITION BY THE STATES THAT TRUTH PLUS GOOD MOTIVES IS A
DEFENSE IN A PROSECUTION FOR CRIMINAL LIBEL.  BUT HERE THE TRIAL COURT
REPEATEDLY REFUSED DEFENDANT'S OFFER OF PROOF AS TO THE TRUTH OF THE
MATTER PUBLISHED.  WHERE AN OFFER TO PROVE THE DOMINANT ELEMENT OF A
DEFENSE IS REJECTED AS IMMATERIAL, WE CAN HARDLY REFUSE TO CONSIDER
DEFENDANT'S CONSTITUTIONAL QUESTION BECAUSE HE DID NOT GO THROUGH THE
USELESS CEREMONY OF OFFERING PROOF OF A SUBSIDIARY ELEMENT OF THE
DEFENSE.  IF THE COURT WOULD NOT LET HIM TRY TO PROVE HE SPOKE TRUTH,
HOW COULD HE SHOW THAT HE SPOKE TRUTH FOR GOOD ENDS?  FURTHERMORE, THE
RECORD INDICATES THAT DEFENDANT WAS ASKED TO STATE WHAT HE HAD MEANT BY
THE USE OF CERTAIN PHRASES, AND THE REASON FOR FORMING THE WHITE CIRCLE
LEAGUE - STATEMENTS WHICH APPARENTLY BORE ON THE ISSUE OF MOTIVE AND
ENDS.  BUT THE TRIAL COURT SUSTAINED A SWEEPING OBJECTION "TO THIS
WHOLE LINE OF EXAMINATION."  THE SUPREME COURT OF ILLINOIS NOTED THE
OFFER OF PROOF OF TRUTH AND ITS EXCLUSION, AND APPARENTLY WENT ON TO
RULE AS A MATTER OF LAW THAT THE STATEMENT WAS NOT PUBLISHED FOR
JUSTIFIABLE ENDS.  AT ALL EVENTS, IT IS CLEAR THAT THE DEFENSE WAS
RULED OUT AS MATTER OF LAW AND DEFENDANT WAS NEVER ALLOWED TO PRESENT
IT FOR DECISION BY EITHER COURT OR JURY UPON THE FACTS, A PRACTICE
WHICH I THINK IS CONTRARY TO THE OVERWHELMING VERDICT OF ANGLO-SAXON
HISTORY AND PRACTICE.  I DO NOT INTIMATE THAT THIS DEFENDANT STOOD EVEN
A REMOTE CHANCE OF JUSTIFYING WHAT IMPRESSES ME, AS IT DID THE TRIAL
COURT, AS RECKLESS AND VICIOUS LIBEL.  BUT THE POINT IS THAT HIS
EVIDENCE, PROFFERED FOR THAT PURPOSE, WAS EXCLUDED INSTEAD OF BEING
RECEIVED AND EVALUATED.  SOCIETY HAS AN INTEREST IN PRESERVING TRUTH AS
A JUSTIFICATION, HOWEVER OBNOXIOUS THE EFFORT MAY BE.  A PUBLICATION
WHICH DIFFUSES ITS ATTACK OVER UNNAMED AND IMPERSONAL MULTITUDES IS
LIKELY TO BE HARDER TO JUSTIFY THAN ONE WHICH CONCENTRATES ITS ATTACK
ON NAMED INDIVIDUALS, BUT THE BURDEN MAY PROPERLY BE CAST ON AN ACCUSED
AND PUNISHMENT FOLLOW FAILURE TO CARRY IT. 

THE SAME MAY BE SAID OF THE RIGHT TO COMMENT UPON MATTERS OF PUBLIC
INTEREST INSOFAR AS THE STATEMENT INCLUDES MATTERS OF OPINION, A POINT,
HOWEVER, WHICH THE DEFENSE MAY HAVE INADEQUATELY RAISED.  WHEN ANY
NATURALLY COHESIVE OR ARTIFICALLY ORGANIZED GROUP POSSESSES A RACIAL OR
AFFAIRS, THAT GROUP BECOMES A LEGITIMATE SUBJECT FOR PUBLIC COMMENT. 
OF COURSE, ONE CAN ONLY DEPLORE THE HABITUAL INTEMPERANCE AND BITTER
DISPARAGEMENT WHICH CHARACTERIZES MOST SUCH COMMENT.  WHILE I SUPPORT
THE RIGHT OF A STATE TO PLACE DECENT BOUNDS UPON IT, I AM NOT READY TO
HOLD THAT GROUP PURPOSES, CHARACTERISTICS AND HISTORIES ARE TO BE
IMMUNIZED FROM COMMENT OR MAY BE DISCUSSED ONLY AT THE RISK OF
PROSECUTION FREE OF ALL USUAL SAFEGUARDS. 

ANOTHER DEFENSE ALMOST UNIVERSALLY RECOGNIZED, WHICH IT SEEMS THE
JURY WERE NOT ALLOWED TO CONSIDER HERE, IS THAT OF PRIVILEGE.  PETITION
FOR REDRESS OF GRIEVANCES IS SPECIFICALLY PRIVILEGED BY MANY STATE
CONSTITUTIONS.  I DO NOT THINK WE SHOULD HOLD THIS WHOLE DOCUMENT TO BE
CONSTITUTIONALLY PRIVILEGED JUST BECAUSE, IN PART, IT SIMULATES A
PETITION FOR REDRESS OF GRIEVANCES.  A COURT OR JURY COULD HAVE FOUND
THAT ITS PRIMARY PURPOSE WAS NOT TO PETITION BUT TO APPEAL FOR MEMBERS
AND CONTRIBUTIONS TO THE WHITE CIRCLE LEAGUE.  IF SOME PART OF IT WERE
PRIVILEGED, THAT, SO IT HAS BEEN HELD, DOES NOT EXTEND CONSTITUTIONAL
PROTECTION TO UNPRIVILEGED MATTER.  CF. VALENTINE V. CHRESTENSEN, 316
U.S. 52.  BUT THE QUESTION OF PRIVILEGE SEEMS NOT TO HAVE BEEN
SPECIFICALLY PASSED ON BY THE COURT AND CERTAINLY WAS NOT SUBMITTED FOR
THE JURY'S CONSIDERATION. 

IN THIS CASE, NEITHER THE COURT NOR JURY FOUND OR WERE REQUIRED TO
FIND ANY INJURY TO ANY PERSON, OR GROUP, OR TO THE PUBLIC PEACE, NOR TO
FIND ANY PROBABILITY, LET ALONE ANY CLEAR AND PRESENT DANGER, OF INJURY
TO ANY OF THESE.  EVEN THOUGH NO INDIVIDUALS WERE NAMED OR DESCRIBED AS
TARGETS OF THIS PAMPHLET, IF IT RESULTED IN A RIOT OR CAUSED INJURY TO
ANY INDIVIDUAL NEGRO, SUCH AS BEING REFUSED LIVING QUARTERS IN A
PARTICULAR SECTION, HOUSE OR APARTMENT, OR BEING REFUSED EMPLOYMENT,
CERTAINLY THERE WOULD BE NO CONSTITUTIONAL OBSTACLE TO IMPOSING CIVIL
OR CRIMINAL LIABILITY FOR ACTUAL RESULTS.  BUT IN THS CASE NO ACTUAL
VIOLENCE AND NO SPECIFIC INJURY WAS CHARGED OR PROVED. 

THE LEAFLET WAS SIMPLY HELD PUNISHABLE AS CRIMINAL LIBEL PER SE
IRRESPECTIVE OF ITS ACTUAL OR PROBABLY CONSEQUENCES.  NO CHARGE OF
CONSPIRACY COMPLICATES THIS CASE.  THE WORDS THEMSELVES DO NOT ADVOCATE
THE COMMISSION OF ANY CRIME.  THE CONVICTION RESTS ON JUDICIAL
ATTRIBUTION OF A LIKELIHOOD OF EVIL RESULTS.  THE TRIAL COURT, HOWEVER,
REFUSED TO CHARGE THE JURY THAT IT MUST FIND SOME "CLEAR AND PRESENT
DANGER," AND THE SUPREME COURT OF ILLINOIS SUSTAINED CONVICTION
BECAUSE, IN ITS OPINION, THE WORDS USED HAD A TENDENCY TO CAUSE A
BREACH OF THE PEACE. 

REFERRING TO THE CLEAR AND PRESENT DANGER DOCTRINE IN DENNIS V.
UNITED STATES, 341 U.S. 494, 568, I SAID: 

"I WOULD SAVE IT, UNMODIFIED, FOR APPLICATION AS A 'RULE OF REASON'
IN THE KIND OF CASE FOR WHICH IT WAS DEVISED.  WHEN THE ISSUE IS
CRIMINALITY OF A HOT-HEADED SPEECH ON A STREET CORNER, OR CIRCULATION
OF A FEW INCENDIARY PAMPHLETS, OR PARADING BY SOME ZEALOTS BEHIND A RED
FLAG, OR REFUSAL OF A HANDFUL OF SCHOOL CHILDREN TO SALUTE OUR FLAG, IT
IS NOT BEYOND THE CAPACITY OF THE JUDICIAL PROCESS TO GATHER,
COMPREHEND, AND WEIGH THE NECESSARY MATERIALS FOR DECISION WHETHER IT
IS A CLEAR AND PRESENT DANGER OF SUBSTANTIVE EVIL OR A HARMLESS LETTING
OFF OF STEAM.  IT IS NOT A PROPHECY, FOR THE DANGER IN SUCH CASES HAS
MATURED BY THE TIME OF TRIAL OR IT WAS NEVER PRESENT.  THE TEST APPLIES
AND HAS MEANING WHERE A CONVICTION IS SOUGHT TO BE BASED ON A SPEECH OR
WRITING WHICH DOES NOT DIRECTLY OR EXPLICITLY ADVOCATE A CRIME BUT TO
WHICH SUCH TENDENCY IS SOUGHT TO BE ATTRIBUTED BY CONSTRUCTION OR BY
IMPLICATION FROM EXTERNAL CIRCUMSTANCES.  THE FORMULA IN SUCH CASES
FAVORS FREEDOMS THAT ARE VITAL TO OUR SOCIETY, AND, EVEN IF SOMETIMES
APPLIED TOO GENEROUSLY, THE CONSEQUENCES CANNOT BE GRAVE  ...  ." 

NOT THE LEAST OF THE VIRTUES OF THIS FORMULA IN SUCH TENDENCY CASES
IS THAT IT COMPELS THE PROSECUTION TO MAKE UP ITS MIND WHAT PARTICULAR
EVIL IT SOUGHT OR IS SEEKING TO PREVENT.  IT MUST RELATE ITS
INTERFERENCE WITH SPEECH OR PRESS OR SOME IDENTIFIABLE EVIL TO BE
PREVENTED.  WORDS ON THEIR OWN ACCOUNT ARE NOT TO BE PUNISHED IN SUCH
CASES BUT ARE REACHABLE ONLY AS THE ROOT OF PUNISHABLE EVILS. 

PUNISHMENT OF PRINTED WORDS, BASED ON THEIR TENDENCY EITHER TO CAUSE
BREACH OF THE PEACE OR INJURY TO PERSONS OR GROUPS, IN MY OPINION, IS
JUSTIFIABLE ONLY IF THE PROSECUTION SURVIVES THE "CLEAR AND PRESENT
DANGER" TEST.  IT IS THE MOST JUST AND WORKABLE STANDARD YET EVOLVED
FOR DETERMINING CRIMINALITY OF WORDS WHOSE INJURIOUS OR INCITING
TENDENCIES ARE NOT DEMONSTRATED BY THE EVENT BUT ARE ASCRIBED TO THEM
ON THE BASIS OF PROBABILITIES. 

ITS APPLICATION IS IMPORTANT IN THIS CASE BECAUSE IT TAKES ACCOUNT OF
THE PARTICULAR FORM, TIME, PLACE, AND MANNER OF COMMUNICATION IN
QUESTION.  "THE MOVING PICTURE SCREEN, THE RADIO, THE NEWSPAPER, THE
HANDBILL, THE SOUND TRUCK AND THE STREET CORNER ORATOR HAVE DIFFERING
NATURES, VALUES, ABUSES AND DANGERS.  EACH, IN MY VIEW, IS A LAW UNTO
ITSELF  ...  ."  KOVACS V. COOPER, 336 U.S. 77, 97.  IT WOULD CONSIDER
WHETHER A LEAFLET IS SO EMOTIONALLY EXCITING TO IMMEDIATE ACTION AS THE
SPOKEN WORD, ESPECIALLY THE INCENDIARY STREET OR PUBLIC SPEECH. 
TERMINIELLO V. CHICAGO, 337 U.S. 1, 13; KUNZ V. NEW YORK, 340 U.S.
290,295.  IT WILL INQUIRE WHETHER THIS PUBLICATION WAS OBVIOUSLY SO
FOUL AND EXTREME AS TO DEFEAT ITS OWN ENDS, WHETHER IT APPEALS FOR
MONEY - WHICH HAS A COOLING EFFECT ON MANY PERSONS - WOULD NOT NEGATIVE
ITS INFLAMMATORY EFFECT, WHETHER IT WOULD NOT IMPRESS THE PASSER-BY AS
THE WORK OF AN IRRESPONSIBLE WHO NEEDED MENTAL EXAMINATION.    ONE OF
THE MERITS OF THE CLEAR AND PRESENT DANGER TEST IS THAT THE TRIERS OF
FACT WOULD TAKE INTO ACCOUNT THE REALITIES OF RACE RELATIONS AND ANY
SMOULDERING FIRES TO BE FANNED INTO HOLOCAUSTS.  SUCH CONSIDERATION
MIGHT WELL WARRANT A CONVICTION HERE WHEN IT WOULD NOT IN ANOTHER AND
DIFFERENT ENVIRONMENT. 

GROUP LIBEL STATUTES REPRESENT A COMMENDABLE DESIRE TO REDUCE
SINISTER ABUSES OF OUR FREEDOMS OF EXPRESSION - ABUSES WHICH I HAVE HAD
OCCASION TO LEARN CAN TEAR APART A SOCIETY, BRUTALIZE ITS DOMINANT
ELEMENTS, AND PERSECUTE, EVEN TO EXTERMINATION, ITS MINORITIES.  WHILE
LAWS OR PROSECUTIONS MIGHT NOT ALLEVIATE RACIAL OR SECTARIAN HATREDS
AND MAY EVEN INVEST SCOUNDRELS WITH A SPECIOUS MARTYRDOM, I SHOULD BE
LOATH TO FORECLOSE THE STATES FROM A CONSIDERABLE LATITUDE OF
EXPERIMENTATION IN THIS FIELD.  SUCH EFFORTS, IF PROPERLY APPLIED, DO
NOT JUSTIFY FRENETIC FOREBODINGS OF CRUSHED LIBERTY.  BUT THESE ACTS
PRESENT MOST DIFFICULT POLICY AND TECHNICAL PROBLEMS, AS THOUGHTFUL
WRITERS WHO HAVE CANVASSED THE PROBLEM MORE COMPREHENSIVELY THAN IS
APPROPRIATE IN A JUDICIAL OPINION HAVE WELL POINTED OUT.  (FN21) 

NO GROUP INTEREST IN ANY PARTICULAR PROSECUTION SHOULD FORGET THAT
THE SHOE MAY BE ON THE OTHER FOOT IN SOME PROSECUTION TOMORROW.  IN
THESE, AS IN OTHER MATTERS, OUR GUIDING SPIRIT SHOULD BE THAT EACH
FREEDOM IS BALANCED WITH A RESPONSIBILITY, AND EVERY POWER OF THE STATE
MUST BE CHECKED WITH SAFEGUARDS.  SUCH IS THE SPIRIT OF OUR AMERICAN
LAW OF CRIMINAL LIBEL, WHICH CONCEDES THE POWER TO THAT STATE, BUT ONLY
AS A POWER RESTRAINED BY RECOGNITION OF INDIVIDUAL RIGHTS.  I CANNOT
ESCAPE THE CONCLUSION THAT AS THE ACT HAS BEEN APPLIED IN THIS CASE IT
LOST SIGHT OF THE RIGHTS. 

FN1  FIRST AMENDMENT:  "CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING
THE FREEDOM OF SPEECH, OR OF THE PRESS  ... ."  FOURTEENTH AMENDMENT:
"  ...  NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW  ...  ." 

FN2  1 STAT. 596 (1798) SEC. 2:  "AND BE IT FURTHER ENACTED, THAT IF
ANY PERSON SHALL WRITE, PRINT, UTTER OR PUBLISH  ...  ANY FALSE,
SCANDALOUS AND MALICIOUS WRITING OR WRITINGS AGAINST THE GOVERNMENT OF
THE UNITED STATES, OR EITHER HOUSE OF THE CONGRESS OF THE UNITED
STATES, OR THE PRESIDENT OF THE UNITED STATES, WITH INTENT TO DEFAME
THE SAID GOVERNMENT, OR EITHER HOUSE OF THE SAID CONGRESS, OR THE SAID
PRESIDENT, OR TO BRING THEM, OR EITHER OF THEM, INTO CONTEMPT OR
DISREPUTE  ...  SUCH PERSON  ...  SHALL BE PUNISHED BY A FINE NOT
EXCEEDING TWO THOUSAND DOLLARS, AND BY IMPRISONMENT NOT EXCEEDING TWO
YEARS."  SECTION 3:  "  ...  IT SHALL BE LAWFUL FOR THE DEFENDANT  ...
TO GIVE IN EVIDENCE IN HIS DEFENSE, THE TRUTH OF THE MATTER CONTAINED
IN THE PUBLICATION CHARGED AS A LIBEL.  AND THE JURY WHO SHALL TRY THE
CAUSE, SHALL HAVE A RIGHT TO DETERMINE THE LAW AND THE FACT, UNDER THE
DIRECTION OF THE COURT, AS IN OTHER CASES." 

FN3  ABRAMS V. UNITED STATES, 250 U.S. 616, 630. 

FN4  UNITED STATES V. SMITH, 173 F.227.  IN DISCHARGING THE
DEFENDANTS, JUDGE ANDERSON SAID: 

"TO MY MIND THAT MAN HAS READ THE HISTORY OF OUR INSTITUTIONS TO
LITTLE PURPOSE WHO DOES NOT LOOK WITH GRAVE APPREHENSION UPON THE
POSSIBILITY OF THE SUCCESS OF A PROCEEDING SUCH AS THIS.  IF THE
HISTORY OF LIBERTY MEANS ANYTHING, IF CONSTITUTIONAL GUARANTIES ARE
WORTH ANYTHING, THIS PROCEEDING MUST FAIL. 

"IF THE PROSECUTING OFFICERS HAVE THE AUTHORITY TO SELECT THE
TRIBUNAL, IF THERE BE MORE THAN ONE TRIBUNAL TO SELECT FROM, IF THE
GOVERNMENT HAS THAT POWER, AND CAN DRAG CITIZENS FROM DISTANT STATES TO
THE CAPITAL OF THE NATION, THERE TO BE TRIED, THEN, AS JUDGE COOLEY
SAYS, THIS IS A STRANGE RESULT OF A REVOLUTION WHERE ONE OF THE
GRIEVANCES COMPLAINED OF WAS THE ASSERTION OF THE RIGHT TO SEND PARTIES
ABROAD FOR TRIAL."  173 F., AT 232. 

FN5  RIESMAN, GROUP LIBEL, 42 COL. L. REV. 727, 748.  SEE ALSO 87
CONG. REC. 5830-5841. 

FN6  THE FOLLOWING IS A LIST OF SUCH STATE CONSTITUTIONAL PROVISIONS,
COUPLED WITH THE YEAR OF THE ADOPTION OF THE CONSTITUTION IN WHICH THEY
ARE CONTAINED:  ALABAMA (1901), ART. I, SECS. 4, 12; ARIZONA (1912),
ART. II, SEC. 6; ARKANSAS (1874), ART. II, SEC. 6; CALIFORNIA (1879),
ART. 1, SEC. 9; COLORADO (1876), ART. II, SEC. 10; DELAWARE (1897),
ART. I, SEC. 5; FLORIDA (1887), DECL.  RTS., SEC. 13; GEORGIA (1877),
ART. I, SEC. 1, PAR. 15; IDAHO (1890), ART. I, SEC. 9; ILLINOIS (1870),
ART. II, SEC. 4; INDIANA (1851), ART. I, SEC. 9; IOWA (1857), ART. I,
SEC. 7; KANSAS (1861), BILL RTS., SEC. 11; KENTUCKY (1891), SECS. 8, 9;
LOUISIANA (1921), ART. I, SEC. 3; MAINE (1876), ART. I, SEC. 4;
MARYLAND (1867), DECL.  RTS., ART. 40; MICHIGAN (1909), ART. II, SEC.
4; MINNESOTA (1857), ART. I, SEC. 3; MISSISSIPPI (1890), ART. III, SEC.
13; MISSOURI (1945), ART. I, SEC. 8; MONTANA (1889), ART. III, SEC. 10;
NEBRASKA (1875), ART. I, SEC. 5; NEVADA (1864), ART. I, SEC. 9; NEW
JERSEY (1947), ART. I, SEC. 6; NEW MEXICO (1912), ART. II, SEC. 17; NEW
YORK (1938), ART. I, SEC. 8; NORTH CAROLINA (1876), ART. I, SEC. 20;
NORTH DAKOTA (1889), ART. I, SEC. 9; OHIO (1851), ART. I, SEC. 11;
OKLAHOMA (1907), ART. II, SEC. 22; OREGON (1859), ART. I, SEC. 8;
PENNSYLVANIA (1874), ART. I, SEC. 7; RHODE ISLAND (1843), ART. I, SEC.
20; SOUTH DAKOTA (1889), ART. VI, SEC. 5; TENNESSEE (1870), ART. I,
SEC. 19; TEXAS (1876), ART. I, SEC. 8; UTAH (1895), ART. I, SEC. 15;
VIRGINIA (1902), ART. I, SEC. 12; WASHINGTON (1889), ART. I, SEC. 5;
WEST VIRGINIA (1872), ART. III, SEC. 7; WISCONSIN (1848), ART. I, SEC.
3; WYOMING (1889), ART. I, SEC. 20. 

FN7  CONGRESS REQUIRED THAT RECONSTRUCTED STATES APPROVE STATE
CONSTITUTIONS CONSISTENT WITH THE FEDERAL CONSTITUTION, AND ALSO THAT
EACH STATE RATIFY THE FOURTEENTH AMENDMENT.  EXAMPLES OF STATE
CONSTITUTIONAL PROVISIONS EXPRESSLY REFERRING TO LIBEL, BUT WHICH
CONSTITUTIONS WERE NEVERTHELESS APPROVED BY CONGRESS, FOLLOW:
ARKANSAS:  CONST. 1868, ART. I, SEC. 2 PROVIDES THAT TRUTH COUPLED WITH
GOOD MOTIVES SHALL BE A COMPLETE DEFENSE TO A CRIMINAL LIBEL
PROSECUTION; ARKANSAS READMITTED BY 15 STAT. 72 (1868); FLORIDA: CONST.
1868, ART. I, SEC. 10 PROVIDES THAT TRUTH COUPLED WITH GOOD MOTIVES
SHALL BE A COMPLETE DEFENSE TO A CRIMINAL LIBEL PROSECUTION; FLORIDA
READMITTED BY 15 STAT. 73 (1868); MISSISSIPPI:  CONST. 1868, ART. I,
SEC. 4 ENACTS FOX'S LIBEL ACT IN SUBSTANCE; MISSISSIPPI READMITTED BY
16 STAT. 67 (1870); SOUTH CAROLINA:  CONST. 1868, ART. I, SEC. 8 ENACTS
FOX'S LIBEL ACT IN SUBSTANCE, AND PROVIDES THAT TRUTH AND GOOD MOTIVES
SHALL BE A COMPLETE DEFENSE TO A CRIMINAL LIBEL PROSECUTION; SOUTH
CAROLINA READMITTED BY 15 STAT. 73 (1868); TEXAS:  CONST. 1868, ART. I,
SEC. 6 ENACTS FOX'S LIBEL ACT IN SUBSTANCE; TEXAS READMITTED BY 16
STAT. 80 (1870). 

FN8  IN THE CASE OF STATES ERECTED OUT OF THE PUBLIC DOMAIN, ONE OF
TWO PROCEDURES WAS GENERALLY FOLLOWED.  EITHER CONGRESS WOULD ITSELF
ENACT A STATUTE ADMITTING A PARTICULAR STATE, STATING THEREIN THAT THE
CONSTITUTION OF THE STATE IN QUESTION WAS CONSISTENT WITH THE FEDERAL
CONSTITUTION; OR ELSE THE CONGRESSIONAL ACT WOULD PROVIDE THAT THE
STATE WOULD BE ADMITTED UPON ITS ADOPTION OF A CONSTITUTION CONSISTENT
WITH THE FEDERAL CONSTITUTION.  IN THE LATTER CASE THE ACTUAL ADMISSION
OCCURRED BY PROCLAMATION TO THE PRESIDENT. 

COLORADO:  ART. II, SEC. 10 ENACTS FOX'S LIBEL ACT IN SUBSTANCE, AND
PROVIDES THAT TRUTH AND GOOD MOTIVES SHALL CONSTITUTE A COMPLETE
DEFENSE IN A LIBEL PROSECUTION; ADMITTED BY 18 STAT. 474 (1875), 19
STAT. 665 (1876); MONTANA:  ART. III, SEC. 10 ENACTS FOX'S LIBEL ACT IN
SUBSTANCE; ADMITTED BY 25 STAT. 676 (1889), 26 STAT. 1551 (1889); NEW
MEXICO: ART. II, SEC. 17 PROVIDES THAT TRUTH AND GOOD MOTIVES SHALL
CONSTITUTE A COMPLETE DEFENSE TO A CRIMINAL LIBEL PROSECUTION; ADMITTED
BY 36 STAT. 557 (1910), 37 STAT. 39 (1911); UTAH: ART. I, SEC. 15 LIKE
COLORADO PROVISIONS; ADMITTED BY 28 STAT. 107 (1894), 29 STAT. 876
(1896); WYOMING:  ART. I, SEC. 20 LIKE COLORADO PROVISIONS; ADMITTED BY
26 STAT. 222 (1890). 

FN9  SEE FAIRMAN AND MORRISON, DOES THE FOURTEENTH AMENDMENT
INCORPORATE THE BILL OF RIGHTS?  2 STAN.  L. REV. 5-173. 

FN10  3 JOHNS.  (N.Y.)  337, 413. 

FN11  CONST. 1821, ART. VII, SEC. 8; CONST. 1846, ART. I, SEC. 8;
CONST. 1894, ART. I, SEC. 8; CONST. 1938, ART. I, SEC. 8. 

FN12  ARKANSAS, CALIFORNIA, COLORADO, DELAWARE, FLORIDA, IOWA,
KANSAS, MAINE, MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA, NEVADA, NEW
JERSEY, NEW MEXICO, NORTH DAKOTA, OHIO, OKLAHOMA, PENNSYLVANIA,
TENNESSEE, TEXAS, UTAH, WISCONSIN, AND WYOMING.  FOR CITATIONS TO
ARTICLE AND SECTION, SEE N. 6, SUPRA. 

FN13  ARIZONA, GEORGIA, IDAHO, KENTUCKY, LOUISIANA, MARYLAND,
MICHIGAN, MINNESOTA, NORTH CAROLINA, OREGON, VIRGINIA, AND WASHINGTON. 
THE GEORGIA PROVISION (CONST.  1877, ART. I, SEC. 1, PAR. 15),
REPRESENTATIVE OF THE REST, READS:  "  ...  ANY PERSON MAY SPEAK,
WRITE, AND PUBLISH HIS SENTIMENTS, ON ALL SUBJECTS, BEING RESPONSIBLE
FOR THE ABUSE OF THAT LIBERTY."  FOR CITATIONS TO ARTICLE AND SECTION,
SEE N. 6, SUPRA. 

FN14  ALABAMA, ILLINOIS, INDIANA, RHODE ISLAND, AND WEST VIRGINIA. 
FOR CITATIONS TO ARTICLE AND SECTION, SEE N. 6, SUPRA. 

FN15 CONNECTICUT, CONST. 1818, ART. I, SEC. 6; NEW HAMPSHIRE, CONST.
1784, PART I, ART. 22; SOUTH CAROLINA, CONST. 1895, ART. I, SEC. 4;
VERMONT, CONST. 1793, C. I, ART. 13.  THE MASSACHUSETTS PROVISION
(CONST.  1780, PART I, ART. XVI) READS AS FOLLOWS:  "THE LIBERTY OF THE
PRESS IS ESSENTIAL TO THE SECURITY OF FREEDOM IN A STATE IT OUGHT NOT,
THEREFORE, TO BE RESTRICTED IN THIS COMMONWEALTH." 

FN16  STATE V. GARDNER, 112 CONN. 121, 151 A. 349; COMMONWEALTH V.
SZLIAKYS, 254 MASS. 424, 150 N.E. 190; NOYES V. THORPE, 73 N.H. 481, 62
A. 787; STATE V. GURRY, 163 S.C. 1, 161 S.E. 191; STATE V. COLBY, 98
VT. 96, 126 A. 510.  DECISIONAL LAW OF OTHER STATES IS COLLECTED IN
NOTE, 1 BFLO.  L. REV. 258. 

FN17  LEE, A HISTORY OF AMERICAN JOURNALISM (GARDEN CITY, 1923). 

FN18  SCHENCK V. UNITED STATES, 249 U.S. 47, 52. 

FN19  GITLOW V. NEW YORK, 268 U.S. 652, 672. 

FN20  IT APPEARS THAT GROUP LIBEL WAS NOT UNKNOWN TO COMMON LAW.  SEE
SCOTT, PUBLISHING FALSE NEWS, 30 CAN.  B. REV. 37, 42-43. 

FN21  TANENHAUS, GROUP LIBEL, 35 CORNELL L.Q. 261; RIESMAN, DEMOCRACY
AND DEFAMATION: CONTROL OF GROUP LIBEL, 42 COL. L. REV. 727; SEE ALSO
NOTE, 1 BFLO.  L. REV. 258. 
..END :














ZORACH V. CLAUSON 343 U.S. 306 


NO. 431.  ARGUED JANUARY 31-FEBRUARY 1, 1952 - DECIDED APRIL 28, 1952 -
303 N.Y. 161, 100 N.E.2D 463, AFFIRMED. 


UNDER SEC. 3210 OF THE NEW YORK EDUCATION LAW AND THE REGULATIONS
THEREUNDER, NEW YORK CITY PERMITS ITS PUBLIC SCHOOLS TO RELEASE
STUDENTS DURING SCHOOL HOURS, ON WRITTEN REQUESTS OF THEIR PARENTS, SO
THAT THEY MAY LEAVE THE SCHOOL BUILDINGS AND GROUNDS AND GO TO
RELIGIOUS CENTERS FOR RELIGIOUS INSTRUCTION OR DEVOTIONAL EXERCISES. 
THE SAME SECTION MAKES SCHOOL ATTENDANCE COMPULSORY; STUDENTS NOT
RELEASED STAY IN THE CLASSROOMS; AND THE CHURCHES REPORT TO THE SCHOOLS
THE NAMES OF CHILDREN RELEASED FROM PUBLIC SCHOOLS WHO FAIL TO REPORT
FOR RELIGIOUS INSTRUCTION.  THE PROGRAM INVOLVES NEITHER RELIGIOUS
INSTRUCTION IN PUBLIC SCHOOLS NOR THE EXPENDITURE OF PUBLIC FUNDS. 
HELD: THIS PROGRAM DOES NOT VIOLATE THE FIRST AMENDMENT, MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.  MCCOLLUM V.
BOARD OF EDUCATION, 333 U.S. 203, DISTINGUISHED.  PP. 308-315. 

(A)  BY THIS SYSTEM, NEW YORK HAS NEITHER PROHIBITED THE "FREE
EXERCISE" OF RELIGION NOR MADE A LAW "RESPECTING AN ESTABLISHMENT OF
RELIGION" WITHIN THE MEANING OF THE FIRST AMENDMENT.  PP. 310-315. 

(B)  THERE IS NO EVIDENCE IN THE RECORD IN THIS CASE TO SUPPORT A
CONCLUSION THAT THE SYSTEM INVOLVES THE USE OF COERCION TO GET PUBLIC
SCHOOL STUDENTS INTO RELIGIOUS CLASSROOMS.  PP. 311-312. 

ZORACH ET AL. V. CLAUSON ET AL., CONSTITUTING THE BOARD OF EDUCATION OF
THE CITY OF NEW YORK, ET AL.

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

THE NEW YORK COURT OF APPEALS SUSTAINED N.Y. EDUCATION LAW SEC. 3210
AND THE REGULATIONS THEREUNDER PERMITTING ABSENCE OF STUDENTS FROM THE
PUBLIC SCHOOLS FOR RELIGIOUS OBSERVANCE AND EDUCATION, AGAINST THE
CLAIM THAT THE PROGRAM THEREUNDER VIOLATED THE FEDERAL CONSTITUTION. 
303 N.Y. 161, 100 N.E.2D 463.  ON APPEAL TO THIS COURT, AFFIRMED, P.
315. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

NEW YORK CITY HAS A PROGRAM WHICH PERMITS ITS PUBLIC SCHOOLS TO
RELEASE STUDENTS DURING THE SCHOOL DAY SO THAT THEY MAY LEAVE THE
SCHOOL BUILDINGS AND SCHOOL GROUNDS AND GO TO RELIGIOUS CENTERS FOR
RELIGIOUS INSTRUCTION OR DEVOTIONAL EXERCISES.  A STUDENT IS RELEASED
ON WRITTEN REQUEST OF HIS PARENTS.  THOSE NOT RELEASED STAY IN THE
CLASSROOMS.  THE CHURCHES MAKE WEEKLY REPORTS TO THE SCHOOLS, SENDING A
LIST OF CHILDREN WHO HAVE BEEN RELEASED FROM PUBLIC SCHOOL BUT WHO HAVE
NOT REPORTED FOR RELIGIOUS INSTRUCTION.  (FN1) 

THIS "RELEASED TIME" PROGRAM INVOLVES NEITHER RELIGIOUS INSTRUCTION
IN PUBLIC SCHOOL CLASSROOMS NOR THE EXPENDITURE OF PUBLIC FUNDS.  ALL
COSTS, INCLUDING THE APPLICATION BLANKS, ARE PAID BY THE RELIGIOUS
ORGANIZATIONS.  THE CASE IS THEREFORE UNLIKE MCCOLLUM V. BOARD OF
EDUCATION, 333 U.S. 203, WHICH INVOLVED A "RELEASED TIME" PROGRAM FROM
ILLINOIS.  IN THAT CASE THE CLASSROOMS WERE TURNED OVER TO RELIGIOUS
INSTRUCTORS.  WE ACCORDINGLY HELD THAT THE PROGRAM VIOLATED THE FIRST
AMENDMENT (FN2) WHICH (BY REASON OF THE FOURTEENTH AMENDMENT) (FN3)
PROHIBITS THE STATES FROM ESTABLISHING RELIGION OR PROHIBITING ITS FREE
EXERCISE. 

APPELLANTS, WHO ARE TAXPAYERS AND RESIDENTS OF NEW YORK CITY AND
WHOSE CHILDREN ATTEND ITS PUBLIC SCHOOLS, (FN4) CHALLENGE THE PRESENT
LAW, CONTENDING IT IS IN ESSENCE NOT DIFFERENT FROM THE ONE INVOLVED IN
THE MCCOLLUM CASE.  THEIR ARGUMENT, STATED ELABORATELY IN VARIOUS WAYS,
REDUCES ITSELF TO THIS:  THE WEIGHT AND INFLUENCE OF THE SCHOOL IS PUT
BEHIND A PROGRAM FOR RELIGIOUS INSTRUCTION; PUBLIC SCHOOL TEACHERS
POLICE IT, KEEPING TAB ON STUDENTS WHO ARE RELEASED; THE CLASSROOM
ACTIVITIES COME TO A HALT WHILE THE STUDENTS WHO ARE RELEASED FOR
RELIGIOUS INSTRUCTION ARE ON LEAVE; THE SCHOOL IS A CRUTCH ON WHICH THE
CHURCHES ARE LEANING FOR SUPPORT IN THEIR RELIGIOUS TRAINING; WITHOUT
THE COOPERATION OF THE SCHOOLS THIS "RELEASED TIME" PROGRAM, LIKE THE
ONE IN THE MCCOLLUM CASE, WOULD BE FUTILE AND INEFFECTIVE.  THE NEW
YORK COURT OF APPEALS SUSTAINED THE LAW AGAINST THIS CLAIM OF
UNCONSTITUTIONALITY.  303 N.Y. 161, 100 N.E.2D 463.  THE CASE IS HERE
ON APPEAL.  28 U.S.C. SEC. 1257(2). 

THE BRIEFS AND ARGUMENTS ARE REPLETE WITH DATA BEARING ON THE MERITS
OF THIS TYPE OF "RELEASED TIME" PROGRAM.  VIEWS PRO AND CON ARE
EXPRESSED, BASED ON PRACTICAL EXPERIENCE WITH THESE PROGRAMS AND WITH
THEIR IMPLICATIONS.  (FN5)  WE DO NOT STOP TO SUMMARIZE THESE MATERIALS
NOR TO BURDEN THE OPINION WITH AN ANALYSIS OF THEM.  FOR THEY INVOLVE
CONSIDERATIONS NOT GERMANE TO THE NARROW CONSTITUTIONAL ISSUE
PRESENTED.  THEY LARGELY CONCERN THE WISDOM OF THE SYSTEM, ITS
EFFICIENCY FROM AN EDUCATIONAL POINT OF VIEW, AND THE POLITICAL
CONSIDERATIONS WHICH HAVE MOTIVATED ITS ADOPTION OR REJECTION IN SOME
COMMUNITIES.  THOSE MATTERS ARE OF NO CONCERN HERE, SINCE OUR PROBLEM
REDUCES ITSELF TO WHETHER NEW YORK BY THIS SYSTEM HAS EITHER PROHIBITED
THE "FREE EXERCISE" OF RELIGION OR HAS MADE A LAW "RESPECTING AN
ESTABLISHMENT OF RELIGION" WITHIN THE MEANING OF THE FIRST AMENDMENT. 

IT TAKES OBTUSE REASONING TO INJECT ANY ISSUE OF THE "FREE EXERCISE"
OF RELIGION INTO THE PRESENT CASE.  NO ONE IS FORCED TO GO TO THE
RELIGIOUS CLASSROOM AND NO RELIGIOUS EXERCISE OR INSTRUCTION IS BROUGHT
TO THE CLASSROOMS OF THE PUBLIC SCHOOLS.  A STUDENT NEED NOT TAKE
RELIGIOUS INSTRUCTION.  HE IS LEFT TO HIS OWN DESIRES AS TO THE MANNER
OR TIME OF HIS RELIGIOUS DEVOTIONS, IF ANY. 

THERE IS A SUGGESTION THAT THE SYSTEM INVOLVES THE USE OF COERCION TO
GET PUBLIC SCHOOL STUDENTS INTO RELIGIOUS CLASSROOMS.  THERE IS NO
EVIDENCE IN THE RECORD BEFORE US THAT SUPPORTS THAT CONCLUSION.  (FN6)
THE PRESENT RECORD INDEED TELLS US THAT THE SCHOOL AUTHORITIES ARE
NEUTRAL IN THIS REGARD AND DO NO MORE THAN RELEASE STUDENTS WHOSE
PARENTS SO REQUEST.  IF IN FACT COERCION WERE USED, IF IT WERE
ESTABLISHED THAT ANY ONE OR MORE TEACHERS WERE USING THEIR OFFICE TO
PERSUADE OR FORCE STUDENTS TO TAKE THE RELIGIOUS INSTRUCTION, A WHOLLY
DIFFERENT CASE WOULD BE PRESENTED.  (FN7) HENCE WE PUT ASIDE THAT CLAIM
OF COERCION BOTH AS RESPECTS THE "FREE EXERCISE" OF RELIGION AND "AN
ESTABLISHMENT OF RELIGION" WITHIN THE MEANING OF THE FIRST AMENDMENT. 

MOREOVER, APART FROM THAT CLAIM OF COERCION, WE DO NOT SEE HOW NEW
YORK BY THIS TYPE OF "RELEASED TIME" PROGRAM HAS MADE A LAW RESPECTING
AN ESTABLISHMENT OF RELIGION WITHIN THE MEANING OF THE FIRST
AMENDMENT.  THERE IS MUCH TALK OF THE SEPARATION OF CHURCH AND STATE IN
THE HISTORY OF THE BILL OF RIGHTS AND IN THE DECISIONS CLUSTERING
AROUND THE FIRST AMENDMENT.  SEE EVERSON V. BOARD OF EDUCATION, 330
U.S. 1; MCCOLLUM V. BOARD OF EDUCATION, SUPRA.  THERE CANNOT BE THE
SLIGHTEST DOUBT THAT THE FIRST AMENDMENT REFLECTS THE PHILOSOPHY THAT
CHURCH AND STATE SHOULD BE SEPARATED.  AND SO FAR AS INTERFERENCE WITH
THE "FREE EXERCISE" OF RELIGION AND AN "ESTABLISHMENT" OF RELIGION ARE
CONCERNED, THE SEPARATION MUST BE COMPLETE AND UNEQUIVOCAL.  THE FIRST
AMENDMENT WITHIN THE SCOPE OF ITS COVERAGE PERMITS NO EXCEPTION; THE
PROHIBITION IS ABSOLUTE.  THE FIRST AMENDMENT, HOWEVER, DOES NOT SAY
THAT IN EVERY AND ALL RESPECTS THERE SHALL BE A SEPARATION OF CHURCH
AND STATE.  RATHER, IT STUDIOUSLY DEFINES THE MANNER, THE SPECIFIC
WAYS, IN WHICH THERE SHALL BE NO CONCERT OR UNION OR DEPENDENCY ONE ON
THE OTHER.  THAT IS THE COMMON SENSE OF THE MATTER.  OTHERWISE THE
STATE AND RELIGION WOULD BE ALIENS TO EACH OTHER - HOSTILE, SUSPICIOUS,
AND EVEN UNFRIENDLY.  CHURCHES COULD NOT BE REQUIRED TO PAY EVEN
PROPERTY TAXES.  MUNICIPALITIES WOULD NOT BE PERMITTED TO RENDER POLICE
OR FIRE PROTECTION TO RELIGIOUS GROUPS.  POLICEMEN WHO HELPED
PARISHIONERS INTO THEIR PLACES OF WORSHIP WOULD VIOLATE THE
CONSTITUTION.  PRAYERS IN OUR LEGISLATIVE HALLS; THE APPEALS TO THE
ALMIGHTY IN THE MESSAGES OF THE CHIEF EXECUTIVE; THE PROCLAMATIONS
MAKING THANKSGIVING DAY A HOLIDAY; "SO HELP ME GOD" IN OUR COURTROOM
OATHS - THESE AND ALL OTHER REFERENCES TO THE ALMIGHTY THAT RUN THROUGH
OUR LAWS, OUR PUBLIC RITUALS, OUR CEREMONIES WOULD BE FLOUTING THE
FIRST AMENDMENT.  A FASTIDIOUS ATHEIST OR AGNOSTIC COULD EVEN OBJECT TO
THE SUPPLICATION WITH WHICH THE COURT OPENS EACH SESSION:  "GOD SAVE
THE UNITED STATES AND THIS HONORABLE COURT." 

WE WOULD HAVE TO PRESS THE CONCEPT OF SEPARATION OF CHURCH AND STATE
TO THESE EXTREMES TO CONDEMN THE PRESENT LAW ON CONSTITUTIONAL
GROUNDS.  THE NULLIFICATION OF THIS LAW WOULD HAVE WIDE AND PROFOUND
EFFECTS.  A CATHOLIC STUDENT APPLIES TO HIS TEACHER FOR PERMISSION TO
LEAVE THE SCHOOL DURING HOURS ON A HOLY DAY OF OBLIGATION TO ATTEND A
MASS.  A JEWISH STUDENT ASKS HIS TEACHER FOR PERMISSION TO BE EXCUSED
FOR YOM KIPPUR.  A PROTESTANT WANTS THE AFTERNOON OFF FOR A FAMILY
BAPTISMAL CEREMONY.  IN EACH CASE THE TEACHER REQUIRES PARENTAL CONSENT
IN WRITING.  IN EACH CASE THE TEACHER, IN ORDER TO MAKE SURE THE
STUDENT IS NOT A TRUANT, GOES FURTHER AND REQUIRES A REPORT FROM THE
PRIEST, THE RABBI, OR THE MINISTER.  THE TEACHER IN OTHER WORDS
COOPERATES IN A RELIGIOUS PROGRAM TO THE EXTENT OF MAKING IT POSSIBLE
FOR HER STUDENTS TO PARTICIPATE IN IT.  WHETHER SHE DOES IT
OCCASIONALLY FOR A FEW STUDENTS, REGULARLY FOR ONE, OR PURSUANT TO A
SYSTEMATIZED PROGRAM DESIGNED TO FURTHER THE RELIGIOUS NEEDS OF ALL THE
STUDENTS DOES NOT ALTER THE CHARACTER OF THE ACT. 

WE ARE A RELIGIOUS PEOPLE WHOSE INSTITUTIONS PRESUPPOSE A SUPREME
BEING.  WE GUARANTEE THE FREEDOM TO WORSHIP AS ONE CHOOSES.  WE MAKE
ROOM FOR AS WIDE A VARIETY OF BELIEFS AND CREEDS AS THE SPIRITUAL NEEDS
OF MAN DEEM NECESSARY.  WE SPONSOR AN ATTITUDE ON THE PART OF
GOVERNMENT THAT SHOWS NO PARTIALITY TO ANY ONE GROUP AND THAT LETS EACH
FLOURISH ACCORDING TO THE ZEAL OF ITS ADHERENTS AND THE APPEAL OF ITS
DOGMA.  WHEN THE STATE ENCOURAGES RELIGIOUS INSTRUCTION OR COOPERATES
WITH RELIGIOUS AUTHORITIES BY ADJUSTING THE SCHEDULE OF PUBLIC EVENTS
TO SECTARIAN NEEDS, IT FOLLOWS THE BEST OF OUR TRADITIONS.  FOR IT THEN
RESPECTS THE RELIGIOUS NATURE OF OUR PEOPLE AND ACCOMMODATES THE PUBLIC
SERVICE TO THEIR SPIRITUAL NEEDS.  TO HOLD THAT IT MAY NOT WOULD BE TO
FIND IN THE CONSTITUTION A REQUIREMENT THAT THE GOVERNMENT SHOW A
CALLOUS INDIFFERENCE TO RELIGIOUS GROUPS.  THAT WOULD BE PREFERRING
THOSE WHO BELIEVE IN NO RELIGION OVER THOSE WHO DO BELIEVE.  GOVERNMENT
MAY NOT FINANCE RELIGIOUS GROUPS NOR UNDERTAKE RELIGIOUS INSTRUCTION
NOR BLEND SECULAR AND SECTARIAN EDUCATION NOR USE SECULAR INSTITUTIONS
TO FORCE ONE OR SOME RELIGION ON ANY PERSON.  BUT WE FIND NO
CONSTITUTIONAL REQUIREMENT WHICH MAKES IT NECESSARY FOR GOVERNMENT TO
BE HOSTILE TO RELIGION AND TO THROW ITS WEIGHT AGAINST EFFORTS TO WIDEN
THE EFFECTIVE SCOPE OF RELIGIOUS INFLUENCE.  THE GOVERNMENT MUST BE
NEUTRAL WHEN IT COMES TO COMPETITION BETWEEN SECTS.  IT MAY NOT THRUST
ANY SECT ON ANY PERSON.  IT MAY NOT MAKE A RELIGIOUS OBSERVANCE
COMPULSORY.  IT MAY NOT COERCE ANYONE TO ATTEND CHURCH, TO OBSERVE A
RELIGIOUS HOLIDAY, OR TO TAKE RELIGIOUS INSTRUCTION.  BUT IT CAN CLOSE
ITS DOORS OR SUSPEND ITS OPERATIONS AS TO THOSE WHO WANT TO REPAIR TO
THEIR RELIGIOUS SANCTUARY FOR WORSHIP OR INSTRUCTION.  NO MORE THAN
THAT IS UNDERTAKEN HERE. 

THIS PROGRAM MAY BE UNWISE AND IMPROVIDENT FROM AN EDUCATIONAL OR A
COMMUNITY VIEWPOINT.  THAT APPEAL IS MADE TO US ON A THEORY, PREVIOUSLY
ADVANCED, THAT EACH CASE MUST BE DECIDED ON THE BASIS OF "OUR OWN
PREPOSSESSIONS."  SEE MCCOLLUM V. BOARD OF EDUCATION, SUPRA, P. 238. 
OUR INDIVIDUAL PREFERENCES, HOWEVER, ARE NOT THE CONSTITUTIONAL
STANDARD.  THE CONSTITUTIONAL STANDARD IS THE SEPARATION OF CHURCH AND
STATE.  THE PROBLEM, LIKE MANY PROBLEMS IN CONSTITUTIONAL LAW, IS ONE
OF DEGREE.  SEE MCCOLLUM V. BOARD OF EDUCATION, SUPRA, P. 231. 

IN THE MCCOLLUM CASE THE CLASSROOMS WERE USED FOR RELIGIOUS
INSTRUCTION AND THE FORCE OF THE PUBLIC SCHOOL WAS USED TO PROMOTE THAT
INSTRUCTION.  HERE, AS WE HAVE SAID, THE PUBLIC SCHOOLS DO NO MORE THAN
ACCOMMODATE THEIR SCHEDULES TO A PROGRAM OF OUTSIDE RELIGIOUS
INSTRUCTION.  WE FOLLOW THE MCCOLLUM CASE.  (FN8)  BUT WE CANNOT EXPAND
IT TO COVER THE PRESENT RELEASED TIME PROGRAM UNLESS SEPARATION OF
CHURCH AND STATE MEANS THAT PUBLIC INSTITUTIONS CAN MAKE NO ADJUSTMENTS
OF THEIR SCHEDULES TO ACCOMMODATE THE RELIGIOUS NEEDS OF THE PEOPLE. 
WE CANNOT READ INTO THE BILL OF RIGHTS SUCH A PHILOSOPHY OF HOSTILITY
TO RELIGION.  AFFIRMED. 

FN1  THE NEW YORK CITY RELEASED TIME PROGRAM IS EMBODIED IN THE
FOLLOWING PROVISIONS: 

(A)  N.Y. EDUCATION LAW, SEC. 3210, SUBDIV.  1(B), WHICH PROVIDES
THAT "ABSENCE FOR RELIGIOUS OBSERVANCE AND EDUCATION SHALL BE PERMITTED
UNDER RULES THAT THE COMMISSIONER SHALL ESTABLISH." 

(B)  REGULATIONS OF THE COMMISSIONER OF EDUCATION OF THE STATE OF NEW
YORK, ART. 17, SEC. 154 (1 N.Y. OFFICIAL CODE COMP. 683), WHICH PROVIDE
FOR ABSENCE DURING SCHOOL HOURS FOR RELIGIOUS OBSERVANCE AND EDUCATION
OUTSIDE THE SCHOOL GROUNDS (PAR. 1), WHERE CONDUCTED BY OR UNDER THE
CONTROL OF A DULY CONSTITUTED RELIGIOUS BODY (PAR. 2).  STUDENTS MUST
OBTAIN WRITTEN REQUESTS FROM THEIR PARENTS OR GUARDIANS TO BE EXCUSED
FOR SUCH TRAINING (PAR. 1), AND MUST REGISTER FOR THE TRAINING AND HAVE
A COPY OF THEIR REGISTRATION FILED WITH THE PUBLIC SCHOOL AUTHORITIES
(PAR. 3).  WEEKLY REPORTS OF THEIR ATTENDANCE AT SUCH RELIGIOUS SCHOOLS
MUST BE FILED WITH THEIR PRINCIPAL OR TEACHER (PAR. 4).  ONLY ONE HOUR
A WEEK IS TO BE ALLOWED FOR SUCH TRAINING, AT THE END OF A CLASS
SESSION (PAR. 5), AND WHERE MORE THAN ONE RELIGIOUS SCHOOL IS
CONDUCTED, THE HOUR OF RELEASE SHALL BE THE SAME FOR ALL RELIGIOUS
SCHOOLS (PAR 6). 

(C)  REGULATIONS OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK,
WHICH PROVIDE SIMILAR RULES SUPPLEMENTING THE STATE COMMISSIONER'S
REGULATIONS, WITH THE FOLLOWING SIGNIFICANT AMPLIFICATIONS: NO
ANNOUNCEMENT OF ANY KIND WILL BE MADE IN THE PUBLIC SCHOOLS RELATIVE TO
THE PROGRAM (RULE 1).  THE RELIGIOUS ORGANIZATIONS AND PARENTS WILL
ASSUME FULL RESPONSIBILITY FOR ATTENDANCE AT THE RELIGIOUS SCHOOLS AND
WILL EXPLAIN ANY FAILURES TO ATTEND ON THE WEEKLY ATTENDANCE REPORTS
(RULE 3).  STUDENTS WHO ARE RELEASED WILL BE DISMISSED FROM SCHOOL IN
THE USUAL WAY (RULE 5).  THERE SHALL BE NO COMMENT BY ANY PRINCIPAL OR
TEACHER ON ATTENDANCE OR NONATTENDANCE OF ANY PUPIL UPON RELIGIOUS
INSTRUCTION (RULE 6). 

FN2  THE FIRST AMENDMENT READS IN RELEVANT PART, "CONGRESS SHALL MAKE
NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF." 

FN3  SEE STROMBERG V. CALIFORNIA, 283 U.S. 359; CANTWELL V.
CONNECTICUT, 310 U.S. 296; MURDOCK V. PENNSYLVANIA, 319 U.S. 105. 
FN4  NO PROBLEM OF THIS COURT'S JURISDICTION IS POSED IN THIS CASE
SINCE, UNLIKE THE APPELLANTS IN DOREMUS V. BOARD OF EDUCATION, 342 U.S.
429, APPELLANTS HERE ARE PARENTS OF CHILDREN CURRENTLY ATTENDING
SCHOOLS SUBJECT TO THE RELEASED TIME PROGRAM. 

FN5  SEE, E.G., BECKES, WEEKDAY RELIGIOUS EDUCATION (NATIONAL
CONFERENCE OF CHRISTIANS AND JEWS, HUMAN RELATIONS PAMPHLET NO. 6);
BUTTS, AMERICAN TRADITION IN RELIGION AND EDUCATION, PP. 188, 199;
MOEHLMAN, THE WALL OF SEPARATION BETWEEN CHURCH AND STATE, PP. 123, 155
FF.; MOEHLMAN, THE CHURCH AS EDUCATOR, PP. 103 FF.; MORAL AND SPIRITUAL
VALUES IN THE PUBLIC SCHOOLS (EDUCATIONAL POLICIES COMMISSION, 1951);
NEWMAN, THE SECTARIAN INVASION OF OUR PUBLIC SCHOOLS; PUBLIC SCHOOL
TIME FOR RELIGIOUS EDUCATION, 12 JEWISH EDUCATION 130 (JANUARY, 1941);
RELIGIOUS INSTRUCTION ON SCHOOL TIME, 7 FRONTIERS OF DEMOCRACY 72
(1940); RELEASED TIME FOR RELIGIOUS EDUCATION IN NEW YORK CITY'S
SCHOOLS (PUBLIC EDUCATION ASSOCIATION, JUNE 30, 1943); RELEASED TIME
FOR RELIGIOUS EDUCATION IN NEW YORK CITY'S SCHOOLS (PUBLIC EDUCATION
ASSOCIATION, JUNE 30, 1945); RELEASED TIME FOR RELIGIOUS EDUCATION IN
NEW YORK CITY SCHOOLS (PUBLIC EDUCATION ASSOCIATION, 1949); 2 STOKES,
CHURCH AND STATE IN THE UNITED STATES, PP. 523-548; THE STATUS OF
RELIGIOUS EDUCATION IN THE PUBLIC SCHOOLS (NATIONAL EDUCATION
ASSOCIATION). 

FN6  NOR IS THERE ANY INDICATION THAT THE PUBLIC SCHOOLS ENFORCE
ATTENDANCE AT RELIGIOUS SCHOOLS BY PUNISHING ABSENTEES FROM THE
RELEASED TIME PROGRAMS FOR TRUANCY. 

FN7  APPELLANTS CONTEND THAT THEY SHOULD HAVE BEEN ALLOWED TO PROVE
THAT THE SYSTEM IS IN FACT ADMINISTERED IN A COERCIVE MANNER.  THE NEW
YORK COURT OF APPEALS DECLINED TO GRANT A TRIAL ON THIS ISSUE, NOTING,
INTER ALIA, THAT APPELLANTS HAD NOT PROPERLY RAISED THEIR CLAIM IN THE
MANNER REQUIRED BY STATE PRACTICE.  303 N.Y. 161, 174, 100 N.E.2D 463,
469.  THIS INDEPENDENT STATE GROUND FOR DECISION PRECLUDES APPELLANTS
FROM RAISING THE ISSUE OF MALADMINISTRATION IN THIS PROCEEDING.  SEE
LOUISVILLE & NASHVILLE R. CO. V. WOODFORD, 234 U.S. 46, 51; ATLANTIC
COAST LINE R. CO. V. MIMS, 242 U.S. 532, 535; AMERICAN SURETY CO. V.
BALDWIN, 287 U.S. 156, 169. 

THE ONLY ALLEGATION IN THE COMPLAINT THAT BEARS ON THE ISSUE IS THAT
THE OPERATION OF THE PROGRAM "HAS RESULTED AND INEVITABLY RESULTS IN
THE EXERCISE OF PRESSURE AND COERCION UPON PARENTS AND CHILDREN TO
SECURE ATTENDANCE BY THE CHILDREN FOR RELIGIOUS INSTRUCTION."  BUT THIS
CHARGE DOES NOT EVEN IMPLICATE THE SCHOOL AUTHORITIES.  THE NEW YORK
COURT OF APPEALS WAS THEREFORE GENEROUS IN LABELING IT A "CONCLUSORY"
ALLEGATION.  303 N.Y., AT 174, 100 N.E.2D, AT 469.  SINCE THE
ALLEGATION DID NOT IMPLICATE THE SCHOOL AUTHORITIES IN THE USE OF
COERCION, THERE IS NO BASIS FOR HOLDING THAT THE NEW YORK COURT OF
APPEALS UNDER THE GUISE OF LOCAL PRACTICE DEFEATED A FEDERAL RIGHT IN
THE MANNER CONDEMNED BY BROWN V. WESTERN R. OF ALABAMA, 338 U.S. 294,
AND RELATED CASES. 

FN8  THREE OF US - THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS AND MR.
JUSTICE BURTON - WHO JOIN THIS OPINION AGREED THAT THE "RELEASED TIME"
PROGRAM INVOLVED IN THE MCCOLLUM CASE WAS UNCONSTITUTIONAL.  IT WAS OUR
VIEW AT THE TIME THAT THE PRESENT TYPE OF "RELEASED TIME" PROGRAM WAS
NOT PREJUEDGED BY THE MCCOLLUM CASE, A CONCLUSION EMPHASIZED BY THE
RESERVATION OF THE QUESTION IN THE SEPARATE OPINION BY MR. JUSTICE
FRANKFURTER IN WHICH MR. JUSTICE BURTON JOINED.  SEE 333 U.S., AT 225
WHERE IT WAS SAID, "OF COURSE, 'RELEASED TIME' AS A GENERALIZED
CONCEPTION, UNDEFINED BY DIFFERENTIATING PARTICULARITIES, IS NOT AN
ISSUE FOR CONSTITUTIONAL ADJUDICATION.  LOCAL PROGRAMS DIFFER FROM EACH
OTHER IN MANY AND CRUCIAL RESPECTS  ...  .  IT IS ONLY WHEN CHALLENGE
IS MADE TO THE SHARE THAT THE PUBLIC SCHOOLS HAVE IN THE EXECUTION OF A
PARTICULAR 'RELEASED TIME' PROGRAM THAT CLOSE JUDICIAL SCRUTINY IS
DEMANDED OF THE EXACT RELATION BETWEEN THE RELIGIOUS INSTRUCTION AND
THE PUBLIC EDUCATIONAL SYSTEM IN THE SPECIFIC SITUATION BEFORE THE
COURT." 

MR. JUSTICE BLACK, DISSENTING. 

ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, HELD
INVALID AS AN "ESTABLISHMENT OF RELIGION" AN ILLINOIS SYSTEM UNDER
WHICH SCHOOL CHILDREN, COMPELLED BY LAW TO GO TO PUBLIC SCHOOLS, WERE
FREED FROM SOME HOURS OF REQUIRED SCHOOL WORK ON CONDITION THAT THEY
ATTEND SPECIAL RELIGIOUS CLASSES HELD IN THE SCHOOL BUILDINGS. 
ALTHOUGH THE CLASSES WERE TAUGHT BY SECTARIAN TEACHERS NEITHER EMPLOYED
NOR PAID BY THE STATE, THE STATE DID USE ITS POWER TO FURTHER THE
PROGRAM BY RELEASING SOME OF THE CHILDREN FROM REGULAR CLASS WORK,
INSISTING THAT THOSE RELEASED ATTEND THE RELIGIOUS CLASSES, AND
REQUIRING THAT THOSE WHO REMAINED BEHIND DO SOME KIND OF ACADEMIC WORK
WHILE THE OTHERS RECEIVED THEIR RELIGIOUS TRAINING.  WE SAID THIS ABOUT
THE ILLINOIS SYSTEM: 

"PUPILS COMPELLED BY LAW TO GO TO SCHOOL FOR SECULAR EDUCATION ARE
RELEASED IN PART FROM THEIR LEGAL DUTY UPON THE CONDITION THAT THEY
ATTEND THE RELIGIOUS CLASSES.  THIS IS BEYOND ALL QUESTION A
UTILIZATION OF THE TAX-ESTABLISHED AND TAX-SUPPORTED PUBLIC SCHOOL
SYSTEM TO AID RELIGIOUS GROUPS TO SPREAD THEIR FAITH.  AND IT FALLS
SQUARELY UNDER THE BAN OF THE FIRST AMENDMENT  ...  ."  MCCOLLUM V.
BOARD OF EDUCATION, SUPRA, AT PP. 209-210. 

I SEE NO SIGNIFICANT DIFFERENCE BETWEEN THE INVALID ILLINOIS SYSTEM
AND THAT OF NEW YORK HERE SUSTAINED.  EXCEPT FOR THE USE OF THE SCHOOL
BUILDINGS IN ILLINOIS, THERE IS NO DIFFERENCE BETWEEN THE SYSTEMS WHICH
I CONSIDER EVEN WORTHY OF MENTION.  IN THE NEW YORK PROGRAM, AS IN THAT
OF ILLINOIS, THE SCHOOL AUTHORITIES RELEASE SOME OF THE CHILDREN ON THE
CONDITION THAT THEY ATTEND THE RELIGIOUS CLASSES, GET REPORTS ON
WHETHER THEY ATTEND, AND HOLD THE OTHER CHILDREN IN THE SCHOOL BUILDING
UNTIL THE RELIGIOUS HOUR IS OVER.  AS WE ATTEMPTED TO MAKE
CATEGORICALLY CLEAR, THE MCCOLLUM DECISION WOULD HAVE BEEN THE SAME IF
THE RELIGIOUS CLASSES HAD NOT BEEN HELD IN THE SCHOOL BUILDINGS.  WE
SAID: 

"HERE NOT ONLY ARE THE STATE'S TAX-SUPPORTED PUBLIC SCHOOL BUILDINGS
USED FOR THE DISSEMINATION OF RELIGIOUS DOCTRINES.  THE STATE ALSO
AFFORDS SECTARIAN GROUPS AN INVALUABLE AID IN THAT IT HELPS TO PROVIDE
PUPILS FOR THEIR RELIGIOUS CLASSES THROUGH USE OF THE STATE'S
COMPULSORY PUBLIC SCHOOL MACHINERY.  THIS IS NOT SEPARATION OF CHURCH
AND STATE."  MCCOLLUM V. BOARD OF EDUCATION, SUPRA, AT P. 212. 

MCCOLLUM THUS HELD THAT ILLINOIS COULD NOT CONSTITUTIONALLY
MANIPULATE THE COMPELLED CLASSROOM HOURS OF ITS COMPULSORY SCHOOL
MACHINERY SO AS TO CHANNEL CHILDREN INTO SECTARIAN CLASSES.  YET THAT
IS EXACTLY WHAT THE COURT HOLDS NEW YORK CAN DO. 

I AM AWARE THAT OUR MCCOLLUM DECISION ON SEPARATION OF CHURCH AND
STATE HAS BEEN SUBJECTED TO A MOST SEARCHING EXAMINATION THROUGHOUT THE
COUNTRY.  PROBABLY FEW OPINIONS FROM THIS COURT IN RECENT YEARS HAVE
ATTRACTED MORE ATTENTION OR STIRRED WIDER DEBATE.  OUR INSISTENCE ON "A
WALL BETWEEN CHURCH AND STATE WHICH MUST BE KEPT HIGH AND IMPREGNABLE"
HAS SEEMED TO SOME A CORRECT EXPOSITION OF THE PHILOSOPHY AND A TRUE
INTERPRETATION OF THE LANGUAGE OF THE FIRST AMENDMENT TO WHICH WE
SHOULD STRICTLY ADHERE.  (FN1)  WITH EQUAL CONVICTION AND SINCERITY,
OTHERS HAVE THOUGHT THE MCCOLLUM DECISION FUNDAMENTALLY WRONG (FN2) AND
HAVE PLEDGED CONTINUOUS WARFARE AGAINST IT.  (FN3) THE OPINIONS IN THE
COURT BELOW AND THE BRIEFS HERE REFLECT THESE DIVERSE VIEWPOINTS.  IN
DISSENTING TODAY, I MEAN TO DO MORE THAN GIVE ROUTINE APPROVAL TO OUR
MCCOLLUM DECISION.  I MEAN ALSO TO REAFFIRM MY FAITH IN THE FUNDAMENTAL
PHILOSOPHY EXPRESSED IN MCCOLLUM AND EVERSON V. BOARD OF EDUCATION, 330
U.S. 1.  THAT REAFFIRMANCE CAN BE BRIEF BECAUSE OF THE EXHAUSTIVE
OPINIONS IN THOSE RECENT CASES. 

DIFFICULTY OF DECISION IN THE HYPOTHETICAL SITUATIONS MENTIONED BY
THE COURT, BUT NOT NOW BEFORE US, SHOULD NOT CONFUSE THE ISSUES IN THIS
CASE.  HERE THE SOLE QUESTION IS WHETHER NEW YORK CAN USE ITS
COMPULSORY EDUCATION LAWS TO HELP RELIGIOUS SECTS GET ATTENDANTS
PRESUMABLY TOO UNENTHUSIASTIC TO GO UNLESS MOVED TO DO SO BY THE
PRESSURE OF THIS STATE MACHINERY.  THAT THIS IS THE PLAN, PURPOSE,
DESIGN AND CONSEQUENCE OF THE NEW YORK PROGRAM CANNOT BE DENIED.  THE
STATE THUS MAKES RELIGIOUS SECTS BENEFICIARIES OF ITS POWER TO COMPEL
CHILDREN TO ATTEND SECULAR SCHOOLS.  ANY USE OF SUCH COERCIVE POWER BY
THE STATE TO HELP OR HINDER SOME RELIGIOUS SECTS OR TO PREFER ALL
RELIGIOUS SECTS OVER NONBELIEVERS OR VICE VERSA IS JUST WHAT I THINK
THE FIRST AMENDMENT FORBIDS.  IN CONSIDERING WHETHER A STATE HAS
ENTERED THIS FORBIDDEN FIELD THE QUESTION IS NOT WHETHER IT HAS ENTERED
TOO FAR BUT WHETHER IT HAS ENTERED AT ALL.  NEW YORK IS MANIPULATING
ITS COMPULSORY EDUCATION LAWS TO HELP RELIGIOUS SECTS GET PUPILS.  THIS
IS NOT SEPARATION BUT COMBINATION OF CHURCH AND STATE. 

THE COURT'S VALIDATION OF THE NEW YORK SYSTEM RESTS IN PART ON ITS
STATEMENT THAT AMERICANS ARE "A RELIGIOUS PEOPLE WHO INSTITUTIONS
PRESUPPOSE A SUPREME BEING."  THIS WAS AT LEAST AS TRUE WHEN THE FIRST
AMENDMENT WAS ADOPTED; AND IT WAS JUST AS TRUE WHEN EIGHT JUSTICES OF
THIS COURT INVALIDATED THE RELEASED TIME SYSTEM IN MCCOLLUM ON THE
PREMISE THAT A STATE CAN NO MORE "AID ALL RELIGIONS" THAN IT CAN AID
ONE.  (FN4)  IT WAS PRECISELY BECAUSE EIGHTEENTH CENTURY AMERICANS WERE
A RELIGIOUS PEOPLE DIVIDED INTO MANY FIGHTING SECTS THAT WE WERE GIVEN
THE CONSTITUTIONAL MANDATE TO KEEP CHURCH AND STATE COMPLETELY
SEPARATE.  COLONIAL HISTORY HAD ALREADY SHOWN THAT, HERE AS ELSEWHERE
ZEALOUS SECTARIANS ENTRUSTED WITH GOVERNMENTAL POWER TO FURTHER THEIR
CAUSES WOULD SOMETIMES TORTURE, MAIM AND KILL THOSE THEY BRANDED
"HERETICS," "ATHEISTS" OR "AGNOSTICS."  (FN5)  THE FIRST AMENDMENT WAS
THEREFORE TO INSURE THAT NO ONE POWERFUL SECT OR COMBINATION OF SECTS
COULD USE POLITICAL OR GOVERNMENTAL POWER TO PUNISH DISSENTERS WHOM
THEY COULD NOT CONVERT TO THEIR FAITH.  NOW AS THEN, IT IS ONLY BY
WHOLLY ISOLATING THE STATE FROM THE RELIGIOUS SPHERE AND COMPELLING IT
TO BE COMPLETELY NEUTRAL, THAT THE FREEDOM OF EACH AND EVERY
DENOMINATION AND OF ALL NONBELIEVERS CAN BE MAINTAINED.  IT IS THIS
NEUTRALITY THE COURT ABANDONS TODAY WHEN IT TREATS NEW YORK'S COERCIVE
SYSTEM AS A PROGRAM WHICH MERELY "ENCOURAGES RELIGIOUS INSTRUCTION OR
COOPERATES WITH RELIGIOUS AUTHORITIES."  THE ABANDONMENT IS ALL THE
MORE DANGEROUS TO LIBERTY BECAUSE OF THE COURT'S LEGAL EXALTATION OF
THE ORTHODOX AND ITS DEROGATION OF UNBELIEVERS. 

UNDER OUR SYSTEM OF RELIGIOUS FREEDOM, PEOPLE HAVE GONE TO THEIR
RELIGIOUS SANCTUARIES NOT BECAUSE THEY FEARED THE LAW BUT BECAUSE THEY
LOVED THEIR GOD.  THE CHOICE OF ALL HAS BEEN AS FREE AS THE CHOICE OF
THOSE WHO ANSWERED THE CALL TO WORSHIP MOVED ONLY BY THE MUSIC OF THE
OLD SUNDAY MORNING CHURCH BELLS.  THE SPIRITUAL MIND OF MAN HAS THUS
BEEN FREE TO BELIEVE, DISBELIEVE, OR DOUBT, WITHOUT REPRESSION, GREAT
OR SMALL, BY THE HEAVY HAND OF GOVERNMENT.  STATUTES AUTHORIZING SUCH
REPRESSION HAVE BEEN STRICKEN.  BEFORE TODAY, OUR JUDICIAL OPINIONS
HAVE REFRAINED FROM DRAWING INVIDIOUS DISTINCTIONS BETWEEN THOSE WHO
BELIEVE IN NO RELIGION AND THOSE WHO DO BELIEVE.  THE FIRST AMENDMENT
HAS LOST MUCH IF THE RELIGIOUS FOLLOWER AND THE ATHEIST ARE NO LONGER
TO BE JUDICIALLY REGARDED AS ENTITLED TO EQUAL JUSTICE UNDER LAW. 

STATE HELP TO RELIGION INJECTS POLITICAL AND PARTY PREJUDICES INTO A
HOLY FIELD.  IT TOO OFTEN SUBSTITUTES FORCE FOR PRAYER, HATE FOR LOVE,
AND PERSECUTION FOR PERSUASION.  GOVERNMENT SHOULD NOT BE ALLOWED,
UNDER COVER OF THE SOFT EUPHEMISM OF "CO-OPERATION," TO STEAL INTO THE
SACRED AREA OF RELIGIOUS CHOICE. 

FN1  SEE, E.G., NEWMAN, THE SECTARIAN INVASION OF OUR PUBLIC SCHOOLS;
MOEHLMAN, THE WALL OF SEPARATION BETWEEN CHURCH AND STATE; THAYER, THE
ATTACK UPON THE AMERICAN SECULAR SCHOOL, PP. 179-199; BUTTS, THE
AMERICAN TRADITION IN RELIGION AND EDUCATION, PP. 201-208.  SEE ALSO
SYMPOSIUM ON RELIGION AND THE STATE, 14 LAW & CONTEMP.  PROB.  1-159. 

FN2  SEE, E.G., O'NEILL, RELIGION AND EDUCATION UNDER THE
CONSTITUTION, PP. 219-253; PARSONS, THE FIRST FREEDOM, PP. 158-178; VAN
DUSEN, GOD IN EDUCATION.  SEE ALSO SYMPOSIUM ON RELIGION AND THE STATE,
SUPRA. 

FN3  SEE MOEHLMAN, SUPRA, N. 1, AT P. 42.  O'NEILL, SUPRA, N. 2, AT
PP. 254-272. 

FN4  A STATE POLICY OF AIDING "ALL RELIGIONS" NECESSARILY REQUIRES A
GOVERNMENTAL DECISION AS TO WHAT CONSTITUTES "A RELIGION."  THUS IS
CREATED A GOVERNMENTAL POWER TO HINDER CERTAIN RELIGIOUS BELIEFS BY
DENYING THEIR CHARACTER AS SUCH.  SEE, E.G., THE REGULATIONS OF THE NEW
YORK COMMISSIONER OF EDUCATION PROVIDING THAT, "THE COURSES IN
RELIGIOUS OBSERVANCE AND EDUCATION MUST BE MAINTAINED AND OPERATED BY
OR UNDER THE CONTROL OF DULY CONSTITUTED RELIGIOUS BODIES."  ART. 17,
SEC. 154, 1 N.Y. OFFICIAL CODE COMP. 683.  THIS PROVIDES PRECISELY THE
KIND OF CENSORSHIP WHICH WE HAVE SAID THE CONSTITUTION FORBIDS. 
CANTWELL V. CONNECTICUT, 310 U.S. 296, 305. 

FN5  WERTENBAKER, THE PURITAN OLIGARCHY, 213-214. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

BY WAY OF EMPHASIZING MY AGREEMENT WITH MR. JUSTICE JACKSON'S
DISSENT, I ADD A FEW WORDS. 

THE COURT TELLS US THAT IN THE MAINTENANCE OF ITS PUBLIC SCHOOLS,
"THE STATE GOVERNMENT CAN CLOSE ITS DOORS OR SUSPEND ITS OPERATIONS" SO
THAT ITS CITIZENS MAY BE FREE FOR RELIGIOUS DEVOTIONS OR INSTRUCTION. 
IF THAT WERE THE ISSUE, IT WOULD NOT RISE TO THE DIGNITY OF A
CONSTITUTIONAL CONTROVERSY.  OF COURSE, A STATE MAY PROVIDE THAT THE
CLASSES IN ITS SCHOOLS SHALL BE DISMISSED, FOR ANY REASON, OR NO
REASON, ON FIXED DAYS, OR FOR SPECIAL OCCASIONS.  THE ESSENCE OF THIS
CASE IS THAT THE SCHOOL SYSTEM DID NOT "CLOSE ITS DOORS" AND DID NOT
"SUSPEND ITS OPERATIONS."  THERE IS ALL THE DIFFERENCE IN THE WORLD
BETWEEN LETTING THE CHILDREN OUT OF SCHOOL AND LETTING SOME OF THEM OUT
OF SCHOOL INTO RELIGIOUS CLASSES.  IF EVERY ONE IS FREE TO MAKE WHAT
USE HE WILL OF TIME WHOLLY UNCONNECTED FROM SCHOOLING REQUIRED BY LAW -
THOSE WHO WISH SECTARIAN INSTRUCTION DEVOTING IT TO THAT PURPOSE, THOSE
WHO HAVE ETHICAL INSTRUCTION AT HOME, TO THAT, THOSE WHO STUDY MUSIC,
TO THAT - THEN OF COURSE THERE IS NO CONFLICT WITH THE FOURTEENTH
AMENDMENT.    THE PITH OF THE CASE IS THAT FORMALIZED RELIGIOUS
INSTRUCTION IS SUBSTITUTED FOR OTHER SCHOOL ACTIVITY WHICH THOSE WHO DO
NOT PARTICIPATE IN THE RELEASED-TIME PROGRAM ARE COMPELLED TO ATTEND. 
THE SCHOOL SYSTEM IS VERY MUCH IN OPERATION DURING THIS KIND OF
RELEASED TIME.  IF ITS DOORS ARE CLOSED, THEY ARE CLOSED UPON THOSE
STUDENTS WHO DO NOT ATTEND THE RELIGIOUS INSTRUCTION, IN ORDER TO KEEP
THEM WITHIN THE SCHOOL.  THAT IS THE VERY THING WHICH RAISES THE
CONSTITUTIONAL ISSUE.  IT IS NOT MET BY DISREGARDING IT.  FAILURE TO
DISCUSS THIS ISSUE DOES NOT TAKE IT OUT OF THE CASE. 

AGAIN, THE COURT RELIES UPON THE ABSENCE FROM THE RECORD OF EVIDENCE
OF COERCION IN THE OPERATION OF THE SYSTEM.  "IF IN FACT COERCION WERE
USED," ACCORDING TO THE COURT, "IF IT WERE ESTABLISHED THAT ANY ONE OR
MORE TEACHERS WERE USING THEIR OFFICE TO PERSUADE OR FORCE STUDENTS TO
TAKE THE RELIGIOUS INSTRUCTION, A WHOLLY DIFFERENT CASE WOULD BE
PRESENTED."  THUS, "COERCION" IN THE ABSTRACT IS ACKNOWLEDGED TO BE
FATAL.  BUT THE COURT DISREGARDS THE FACT THAT AS THE CASE COMES TO US,
THERE COULD BE NO PROOF OF COERCION, FOR THE APPELLANTS WERE NOT
ALLOWED TO MAKE PROOF OF IT. APPELLANTS ALLEGED THAT "THE OPERATION OF
THE RELEASED TIME PROGRAM HAS RESULTED AND INEVITABLY RESULTS IN THE
EXERCISE OF PRESSURE AND COERCION UPON PARENTS AND CHILDREN TO SECURE
ATTENDANCE BY THE CHILDREN FOR RELIGIOUS INSTRUCTION."  THIS ALLEGATION
- THAT COERCION WAS IN FACT PRESENT AND IS INHERENT IN THE SYSTEM, NO
MATTER WHAT DISAVOWALS MIGHT BE MADE IN THE OPERATING REGULATIONS - WAS
DENIED BY APPELLEES.  THUS WERE DRAWN ISSUES OF FACT WHICH CANNOT BE
DETERMINED, ON ANY CONCEIVABLE VIEW OF JUDICIAL NOTICE, BY JUDGES OUT
OF THEIR OWN KNOWLEDGE OR EXPERIENCE.  APPELLANTS SOUGHT AN OPPORTUNITY
TO ADDUCE EVIDENCE IN SUPPORT OF THESE ALLEGATIONS AT AN APPROPRIATE
TRIAL.  AND THOUGH THE COURTS BELOW CITED THE CONCURRING OPINION IN
MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203, 226, TO "EMPHASIZE THE
IMPORTANCE OF DETAILED ANALYSIS OF THE FACTS TO WHICH THE
CONSTITUTIONAL TEST OF SEPARATION IS TO BE APPLIED," THEY DENIED THAT
OPPORTUNITY ON THE GROUND THAT SUCH PROOF WAS IRRELEVANT TO THE ISSUE
OF CONSTITUTIONALITY.  SEE 198 MISC. 631, 641, 99 N.Y.S.2D 339, 348
349; 303 N.Y. 161, 174-175, 100 N.E.2D 463, 469.  (FN1) 

WHEN CONSTITUTIONAL ISSUES TURN ON FACTS, IT IS A STRANGE PROCEDURE
INDEED NOT TO PERMIT THE FACTS TO BE ESTABLISHED.  WHEN SUCH IS THE
CASE, THERE ARE WEIGHTY CONSIDERATIONS FOR US TO REQUIRE THE STATE
COURT TO MAKE ITS DETERMINATION ONLY AFTER A THOROUGH CANVASS OF ALL
THE CIRCUMSTANCES AND NOT TO BAR THEM FROM CONSIDERATION.  CF.
CHASTLETON CORP. V. SINCLAIR, 264 U.S. 543; HAMMOND V. SCHAPPI BUS
LINE, 275 U.S. 164.  IF WE ARE TO DECIDE THIS CASE ON THE PRESENT
RECORD, HOWEVER, A STRICT ADHERENCE TO THE USAGE OF COURTS IN RULING ON
THE SUFFICIENCY OF PLEADINGS WOULD REQUIRE US TO TAKE AS ADMITTED THE
FACTS PLEADED IN THE APPELLANTS' COMPLAINT, INCLUDING THE FACT OF
COERCION, ACTUAL AND INHERENT.  SEE JUDGE FULD, DISSENTING BELOW, 303
N.Y., AT 185, 100 N.E.2D, AT 475.  EVEN ON A MORE LATITUDINARIAN VIEW,
I CANNOT SEE HOW A FINDING THAT COERCION WAS ABSENT, DEEMED CRITICAL BY
THIS COURT IN SUSTAINING THE PRACTICE, CAN BE MADE HERE, WHEN
APPELLANTS WERE PREVENTED FROM MAKING A TIMELY SHOWING OF COERCION
BECAUSE THE COURTS BELOW THOUGHT IT IRRELEVANT. 

THE RESULT IN THE MCCOLLUM CASE, 333 U.S. 203, WAS BASED ON
PRINCIPLES THAT RECEIVED UNANIMOUS ACCEPTANCE BY THIS COURT, BARRING
ONLY A SINGLE VOTE.  I AGREE WITH MR. JUSTICE BLACK THAT THOSE
PRINCIPLES ARE DISREGARDED IN REACHING THE RESULT IN THIS CASE.  (FN2)
HAPPILY THEY ARE NOT DISAVOWED BY THE COURT.  FROM THIS I DRAW THE HOPE
THAT IN FUTURE VARIATIONS OF THE PROBLEM WHICH ARE BOUND TO COME HERE,
THESE PRINCIPLES MAY AGAIN BE HONORED IN THE OBSERVANCE. 

THE DEEPLY DIVISIVE CONTROVERSY AROUSED BY THE ATTEMPTS TO SECURE
PUBLIC SCHOOL PUPILS FOR SECTARIAN INSTRUCTION WOULD PROMPTLY END IF
THE ADVOCATES OF SUCH INSTRUCTION WERE CONTENT TO HAVE THE SCHOOL
"CLOSE ITS DOORS OR SUSPEND ITS OPERATIONS" - THAT IS, DISMISS CLASSES
IN THEIR ENTIRETY, WITHOUT DISCRIMINATION - INSTEAD OF SEEKING TO USE
THE PUBLIC SCHOOLS AS THE INSTRUMENT FOR SECURING ATTENDANCE AT
DENOMINATIONAL CLASSES.  THE UNWILLINGNESS OF THE PROMOTERS OF THIS
MOVEMENT TO DISPENSE WITH SUCH USE OF THE PUBLIC SCHOOLS BETRAYS A
SURPRISING WANT OF CONFIDENCE IN THE INHERENT POWER OF THE VARIOUS
FAITHS TO DRAW CHILDREN TO OUTSIDE SECTARIAN CLASSES - AN ATTITUDE THAT
HARDLY REFLECTS THE FAITH OF THE GREATEST RELIGIOUS SPIRITS. 

FN1  ISSUES THAT RAISE FEDERAL CLAIMS CANNOT BE FORECLOSED BY THE
STATE COURT TREATING THE ALLEGATIONS AS "CONCLUSORY IN CHARACTER."  303
N.Y. 161, 174, 100 N.E.2D 463, 469.  THIS IS SO EVEN WHEN A FEDERAL
STATUTE IS INVOLVED.  BROWN V. WESTERN R. OF ALABAMA, 338 U.S. 294.  A
FORTIORI WHEN THE APPEAL IS TO THE CONSTITUTION OF THE UNITED STATES. 

FN2  THE RESERVATION MADE BY FOUR OF THE JUSTICES IN THE MCCOLLUM
CASE DID NOT, OF COURSE, REFER TO THE NEW YORK SITUATION ANY MORE THAN
IT REFERRED TO THAT FORM OF "RELEASED TIME" UNDER WHICH THE WHOLE
STUDENT BODY IS DISMISSED.  THIS WAS THE RESERVATION: 

"WE DO NOT CONSIDER, AS INDEED WE COULD NOT, SCHOOL PROGRAMS NOT
BEFORE US WHICH, THOUGH COLLOQUIALLY CHARACTERIZED AS 'RELEASED TIME,'
PRESENT SITUATIONS DIFFERING IN ASPECTS THAT MAY WELL BE
CONSTITUTIONALLY CRUCIAL.  DIFFERENT FORMS WHICH 'RELEASED TIME' HAS
TAKEN DURING MORE THAN THIRTY YEARS OF GROWTH INCLUDE PROGRAMS WHICH,
LIKE THAT BEFORE US, COULD NOT WITHSTAND THE TEST OF THE CONSTITUTION;
OTHERS MAY BE FOUND UNEXCEPTIONABLE."  333 U.S., AT 231. 

MR. JUSTICE JACKSON, DISSENTING. 

THIS RELEASED TIME PROGRAM IS FOUNDED UPON A USE OF THE STATE'S POWER
OF COERCION, WHICH, FOR ME, DETERMINES ITS UNCONSTITUTIONALITY. 
STRIPPED TO ITS ESSENTIALS, THE PLAN HAS TWO STAGES:  FIRST, THAT THE
STATE COMPEL EACH STUDENT TO YIELD A LARGE PART OF HIS TIME FOR PUBLIC
SECULAR EDUCATION; AND, SECOND, THAT SOME OF IT BE "RELEASED" TO HIM ON
CONDITION THAT HE DEVOTE IT TO SECTARIAN RELIGIOUS PURPOSES. 

NO ONE SUGGESTS THAT THE CONSTITUTION WOULD PERMIT THE STATE DIRECTLY
TO REQUIRE THIS "RELEASED" TIME TO BE SPENT "UNDER THE CONTROL OF A
DULY CONSTITUTED RELIGIOUS BODY."  THIS PROGRAM ACCOMPLISHES THAT
FORBIDDEN RESULT BY INDIRECTION.  IF PUBLIC EDUCATION WERE TAKING SO
MUCH OF THE PUPILS' TIME AS TO INJURE THE PUBLIC OR THE STUDENTS'
WELFARE BY ENCROACHING UPON THEIR RELIGIOUS OPPORTUNITY, SIMPLY
SHORTENING EVERYONE'S SCHOOL DAY WOULD FACILITATE VOLUNTARY AND
OPTIONAL ATTENDANCE AT CHURCH CLASSES.  BUT THAT SUGGESTION IS REJECTED
UPON THE GROUND THAT IF THEY ARE MADE FREE MANY STUDENTS WILL NOT GO TO
THE CHURCH.  HENCE, THEY MUST BE DEPRIVED OF FREEDOM FOR THIS PERIOD,
WITH CHURCH ATTENDANCE PUT TO THEM AS ONE OF THE TWO PERMISSIBLE WAYS
OF USING IT. 

THE GREATER EFFECTIVENESS OF THIS SYSTEM OVER VOLUNTARY ATTENDANCE
AFTER SCHOOL HOURS IS DUE TO THE TRUANT OFFICER WHO, IF THE YOUNGSTER
FAILS TO GO TO THE CHURCH SCHOOL, DOGS HIM BACK TO THE PUBLIC
SCHOOLROOM.  HERE SCHOOLING IS MORE OR LESS SUSPENDED DURING THE
"RELEASED TIME" SO THE NONRELIGIOUS ATTENDANTS WILL NOT FORGE AHEAD OF
THE CHURCHGOING ABSENTEES.  BUT IT SERVES AS A TEMPORARY JAIL FOR A
PUPIL WHO WILL NOT GO TO CHURCH.  IT TAKES MORE SUBTLETY OF MIND THAN I
POSSESS TO DENY THAT THIS IS GOVERNMENTAL CONSTRAINT IN SUPPORT OF
RELIGION.  IT IS AS UNCONSTITUTIONAL, IN MY VIEW, WHEN EXERTED BY
INDIRECTION AS WHEN EXERCISED FORTHRIGHTLY. 

AS ONE WHOSE CHILDREN, AS A MATTER OF FREE CHOICE, HAVE BEEN SENT TO
PRIVATELY SUPPORTED CHURCH SCHOOLS, I MAY CHALLENGE THE COURT'S
SUGGESTION THAT OPPOSITION TO THIS PLAN CAN ONLY BE ANTIRELIGIOUS,
ATHEISTIC, OR AGNOSTIC.  MY EVANGELISTIC BRETHERN CONFUSE AN OBJECTION
TO COMPULSION WITH AN OBJECTION TO RELIGION.  IT IS POSSIBLE TO HOLD A
FAITH WITH ENOUGH CONFIDENCE TO BELIEVE THAT WHAT SHOULD BE RENDERED TO
GOD DOES NOT NEED TO BE DECIDED AND COLLECTED BY CAESAR. 

THE DAY THAT THIS COUNTRY CEASES TO BE FREE FOR IRRELIGION IT WILL
CEASE TO BE FREE FOR RELIGION - EXCEPT FOR THE SECT THAT CAN WIN
POLITICAL POWER.  THE SAME EPITHETICAL JURISPRUDENCE USED BY THE COURT
TODAY TO BEAT DOWN THOSE WHO OPPOSE PRESSURING CHILDREN INTO SOME
RELIGION CAN DEVISE AS GOOD EPITHETS TOMORROW AGAINST THOSE WHO OBJECT
TO PRESSURING THEM INTO A FAVORED RELIGION.  AND, AFTER ALL, IF WE
CONCEDE TO THE STATE POWER AND WISDOM TO SINGLE OUT "DULY CONSTITUTED
RELIGIOUS" BODIES AS EXCLUSIVE ALTERNATIVES FOR COMPULSORY SECULAR
INSTRUCTION, IT WOULD BE LOGICAL TO ALSO UPHOLD THE POWER AND WISDOM TO
CHOOSE THE TRUE FAITH AMONG THOSE "DULY CONSTITUTED."  WE START DOWN A
ROUGH ROAD WHEN WE BEGIN TO MIX COMPULSORY PUBLIC EDUCATION WITH
COMPULSORY GODLINESS. 

A NUMBER OF JUSTICES JUST SHORT OF A MAJORITY OF THE MAJORITY THAT
PROMULGATES TODAY'S PASSIONATE DIALECTICS JOINED IN ANSWERING THEM IN
ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203.  THE
DISTINCTION ATTEMPTED BETWEEN THAT CASE AND THIS IS TRIVIAL, ALMOST TO
THE POINT OF CYNICISM, MAGNIFYING ITS NONESSENTIAL DETAILS AND
DISPARAGING COMPULSION WHICH WAS THE UNDERLYING REASON FOR INVALIDITY. 
A READING OF THE COURT'S OPINION IN THAT CASE ALONG WITH ITS OPINION IN
THIS CASE WILL SHOW SUCH DIFFERENCE OF OVERTONES AND UNDERTONES AS TO
MAKE CLEAR THAT THE MCCOLLUM CASE HAS PASSED LIKE A STORM IN A TEACUP. 
THE WALL WHICH THE COURT WAS PROFESSING TO ERECT BETWEEN CHURCH AND
STATE HAS BECOME EVEN MORE WARPED AND TWISTED THAN I EXPECTED.  TODAY'S
JUDGMENT WILL BE MORE INTERESTING TO STUDENTS OF PSYCHOLOGY AND OF THE
JUDICIAL PROCESSES THAN TO STUDENTS OF CONSTITUTIONAL LAW. 
..END :






















UNITED STATES V. OREGON STATE MEDICAL SOCIETY 343 U.S. 326 


NO. 19.  ARGUED JANUARY 4, 7, 1952 - DECIDED APRIL 28, 1952 - 95 F.
SUPP. 103, AFFIRMED. 


SEEKING TO RESTRAIN ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN
ACT, THE UNITED STATES BROUGHT THIS SUIT AGAINST THE OREGON STATE
MEDICAL SOCIETY, EIGHT COUNTY MEDICAL SOCIETIES, A DOCTOR-SPONSORED
CORPORATION ENGAGED IN THE SALE OF PREPAID MEDICAL CARE, AND EIGHT
DOCTORS WHO WERE OFFICERS IN THOSE ORGANIZATIONS.  THE COMPLAINT
CHARGED THAT THEY CONSPIRED TO RESTRAIN AND MONOPOLIZE THE BUSINESS OF
PROVIDING PREPAID MEDICAL CARE IN OREGON AND CONSPIRED TO RESTRAIN
COMPETITION BETWEEN DOCTOR-SPONSORED PREPAID MEDICAL PLANS WITHIN THE
STATE.  AFTER A TRIAL, THE DISTRICT COURT DISMISSED THE COMPLAINT ON
THE GROUND THAT THE GOVERNMENT HAD FAILED TO PROVE ITS CHARGES.  HELD:
THE JUDGMENT IS AFFIRMED.  PP. 328-340. 

1.  ON REVIEW, IT IS NOT THE FUNCTION OF THIS COURT TO TRY THE CASE
DE NOVO ON THE RECORD.  UNITED STATES V. YELLOW CAB CO., 338 U.S. 338. 
PP. 331-332. 

2.  RULE 52(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH
PROVIDES THAT, WHERE AN ACTION IS TRIED BY A COURT WITHOUT A JURY,
"FINDINGS OF FACT SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, AND
DUE REGARD SHALL BE GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO
JUDGE OF THE CREDIBILITY OF WITNESSES," IS PECULIARLY APPLICABLE IN A
CASE, SUCH AS THIS, WHERE THE COMPLAINING PARTY CREATES A VAST RECORD
OF CUMULATIVE EVIDENCE AS TO LONG-PAST TRANSACTIONS, MOTIVES AND
PURPOSES, THE EFFECT OF WHICH DEPENDS LARGELY ON CREDIBILITY OF
WITNESSES.  P. 332. 

3.  IN AN ACTION UNDER THE SHERMAN ACT FOR AN INJUNCTION, THE SOLE
FUNCTION OF WHICH IS TO FORESTALL FUTURE VIOLATIONS, AN EXAMINATION OF
EVIDENCE RELATING TO LONG-PAST TRANSACTIONS IS JUSTIFIED ONLY WHEN IT
ILLUMINATES OR EXPLAINS THE PRESENT AND PREDICTS THE SHAPE OF THINGS TO
COME.  PP. 332-333. 

4.  CONDUCT WHICH HAD BEEN DISCONTINUED SEVEN YEARS PREVIOUSLY, IN
THE ABSENCE OF A THREAT OR LIKELIHOOD OF ITS RESUMPTION, DOES NOT
WARRANT THE ISSUANCE OF AN INJUNCTION.  PP. 332-334. 

5.  THE GOVERNMENT HAVING FAILED TO PROVE A CONCERTED REFUSAL BY THE
DEFENDANT DOCTORS TO DEAL WITH PRIVATE HEALTH ASSOCIATIONS, IT IS
UNNECESSARY HERE TO DECIDE WHETHER THAT WOULD VIOLATE THE ANTITRUST
LAWS.  PP. 334-336. 

(A)  WHERE THE HISTORIC DIRECT RELATIONSHIP BETWEEN PHYSICIAN AND
PATIENT IS INVOLVED, THERE ARE ETHICAL CONSIDERATIONS WHICH ARE QUITE
DIFFERENT FROM THE USUAL CONSIDERATIONS PREVAILING IN ORDINARY
COMMERCIAL MATTERS.  P. 336. 

6.  THE TRIAL COURT'S REFUSAL TO FIND THAT THE DEFENDANTS HAD
CONSPIRED TO RESTRAIN OR MONOPOLIZE THE BUSINESS OF PREPAID MEDICAL
CARE WAS NOT CLEARLY ERRONEOUS.  PP. 336-337. 

7.  THE TRIAL COURT'S FINDING THAT THE SALE OF MEDICAL SERVICES BY
THE DOCTOR-SPONSORED ORGANIZATIONS, AS CONDUCTED IN OREGON, DID NOT
CONSTITUTE INTERSTATE COMMERCE WAS NOT CLEARLY ERRONEOUS; AND THE
AGREEMENT BETWEEN THEM NOT TO COMPETE DID NOT FALL WITHIN THE
PROHIBITIONS OF THE SHERMAN ACT.  AMERICAN MEDICAL ASSN. V. UNITED
STATES, 317 U.S. 519, DISTINGUISHED.  PP. 337-339. 

8.  A FINDING WHICH, IN THE LIGHT OF THE RECORD, DOES NOT LEAVE THE
REVIEWING COURT WITH ANY "DEFINITE AND FIRM CONVICTION THAT A MISTAKE
HAS BEEN COMMITTED," IS NOT "CLEARLY ERRONEOUS."  P. 339. 

UNITED STATES V. OREGON STATE MEDICAL SOCIETY ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
OREGON. 

IN A SUIT BY THE UNITED STATES TO RESTRAIN ALLEGED VIOLATIONS OF
SECS. 1 AND 2 OF THE SHERMAN ANTITRUST ACT, THE DISTRICT COURT, AFTER A
TRIAL, DISMISSED THE COMPLAINT ON THE GROUND THAT THE GOVERNMENT HAD
FAILED TO PROVE ITS CHARGES.  95 F. SUPP. 103.  THE UNITED STATES
APPEALED DIRECTLY TO THIS COURT UNDER THE EXPEDITING ACT.  AFFIRMED, P.
340. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL BY THE UNITED STATES (FN1) FROM DISMISSAL BY
THE DISTRICT COURT (FN2) OF ITS COMPLAINT SEEKING AN INJUNCTION TO
PREVENT AND RESTRAIN VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT. 
26 STAT. 209, AS AMENDED, 15 U.S.C. SECS. 1, 2.  (FN3) 

APPELLEES ARE THE OREGON STATE MEDICAL SOCIETY, EIGHT COUNTY MEDICAL
SOCIETIES, OREGON PHYSICIANS' SERVICE (AN OREGON CORPORATION ENGAGED IN
THE SALE OF PREPAID MEDICAL CARE), AND EIGHT DOCTORS WHO ARE OR HAVE
BEEN AT SOME TIME RESPONSIBLE OFFICERS IN THOSE ORGANIZATIONS. 

THIS CONTROVERSY CENTERS ABOUT TWO FORMS OF "CONTRACT PRACTICE" OF
MEDICINE.  IN ONE, PRIVATE CORPORATIONS ORGANIZED FOR PROFIT SELL WHAT
AMOUNTS TO A POLICY OF INSURANCE BY WHICH SMALL PERIODIC PAYMENTS
PURCHASE THE RIGHT TO CERTAIN HOSPITAL FACILITIES AND MEDICAL
ATTENTION.  IN THE OTHER, RAILROAD AND LARGE INDUSTRIAL EMPLOYERS OF
LABOR CONTRACT WITH ONE OR MORE DOCTORS TO TREAT THEIR AILING OR
INJURED EMPLOYEES.  BOTH FORMS OF "CONTRACT PRACTICE," FOR RENDERING
THE PROMISED MEDICAL AND SURGICAL SERVICE, DEPEND UPON DOCTORS OR
PANELS OF DOCTORS WHO COOPERATE ON A FEE BASIS OR WHO ASSOCIATE
THEMSELVES WITH THE PLAN ON A FULL- OR PART-TIME EMPLOYMENT BASIS. 

OBJECTIONS OF THE ORGANIZED MEDICAL PROFESSION TO CONTRACT PRACTICE
ARE BOTH MONETARY AND ETHICAL.  SUCH PRACTICE DIVERTS PATIENTS FROM
INDEPENDENT PRACTITIONERS TO CONTRACT DOCTORS.  IT TENDS TO STANDARDIZE
FEES.  THE ETHICAL OBJECTION HAS BEEN THAT INTERVENTION BY EMPLOYER OR
INSURANCE COMPANY MAKES A TRIPARTITE MATTER OF THE DOCTOR-PATIENT
RELATION.  SINCE THE CONTRACT DOCTOR OWES HIS EMPLOYMENT AND LOOKS FOR
HIS PAY TO THE EMPLOYER OR THE INSURANCE COMPANY RATHER THAN TO THE
PATIENT, HE SERVES TWO MASTERS WITH CONFLICTING INTERESTS.  IN MANY
CASES COMPANIES ASSUMED LIABILITY FOR MEDICAL OR SURGICAL SERVICE ONLY
IF THEY APPROVED THE TREATMENT IN ADVANCE.  THERE WAS EVIDENCE OF
INSTANCES WHERE PROMPTLY NEEDED TREATMENT WAS DELAYED WHILE OBTAINING
COMPANY APPROVAL, AND WHERE A LAY INSURANCE OFFICIAL DISAPPROVED
TREATMENT ADVISED BY A DOCTOR. 

IN 1936, FIVE PRIVATE ASSOCIATIONS WERE SELLING PREPAID MEDICAL
CERTIFICATES IN OREGON, AND DOCTORS OF THAT STATE, ALARMED AT THE
EXTENT TO WHICH PRIVATE PRACTICE WAS BEING INVADED AND SUPERSEDED BY
CONTRACT PRACTICE, COMMENCED A CRUSADE TO STAMP IT OUT.  A TOOTH-AND
CLAW STRUGGLE ENSUED BETWEEN THE ORGANIZED MEDICAL PROFESSION, ON THE
ONE HAND, AND THE ORGANIZATIONS EMPLOYING CONTRACT DOCTORS ON THE
OTHER.  THE CAMPAIGN WAS BITTER ON BOTH SIDES.  STATE AND COUNTY
MEDICAL SOCIETIES ADOPTED RESOLUTIONS AND POLICY STATEMENTS CONDEMNING
CONTRACT PRACTICE AND PHYSICIANS WHO ENGAGED IN IT.  THEY BROUGHT
PRESSURE ON INDIVIDUAL DOCTORS TO DECLINE OR ABANDON IT.  THEY
THREATENED EXPULSION FROM MEDICAL SOCIETIES, AND ONE SOCIETY DID EXPEL
SEVERAL DOCTORS FOR REFUSAL TO TERMINATE CONTRACT PRACTICES. 

HOWEVER, IN 1941, SEVEN YEARS BEFORE THIS ACTION WAS COMMENCED, THERE
WAS AN ABRUPT ABOUT-FACE ON THE PART OF THE ORGANIZED MEDICAL
PROFESSION IN OREGON.  IT WAS APPARENTLY CONVINCED THAT THE PUBLIC
DEMANDED AND WAS ENTITLED TO PURCHASE PROTECTION AGAINST UNEXPECTED
COSTS OF DISEASE AND ACCIDENT, WHICH ARE CATASTROPHIC TO PERSONS
WITHOUT RESERVES.  THE ORGANIZED DOCTORS COMPLETELY REVERSED THEIR
STRATEGY, AND, INSTEAD OF TRYING TO DISCOURAGE PREPAID MEDICAL SERVICE,
DECIDED TO RENDER IT ON A NONPROFIT BASIS THEMSELVES. 

IN THAT YEAR, OREGON PHYSICIANS' SERVICE, ONE OF THE DEFENDANTS IN
THIS ACTION, WAS FORMED.  IT IS A NONPROFIT OREGON CORPORATION,
FURNISHING PREPAID MEDICAL, SURGICAL, AND HOSPITAL CARE ON A CONTRACT
BASIS.  AS CHARGED IN THE COMPLAINT, "IT IS SPONSORED AND APPROVED BY
THE OREGON STATE MEDICAL SOCIETY AND IS CONTROLLED AND OPERATED BY
MEMBERS OF THAT SOCIETY.  IT SPONSORS, APPROVES, AND COOPERATES WITH
COMPONENT COUNTY SOCIETIES AND ORGANIZATIONS CONTROLLED BY THE LATTER
WHICH OFFER PREPAID MEDICAL PLANS."  95 F. SUPP., AT 121.  AFTER SEVEN
YEARS OF SUCCESSFUL OPERATION, THE GOVERNMENT BROUGHT THIS SUIT AGAINST
THE DOCTORS, THEIR PROFESSIONAL ORGANIZATIONS AND THEIR PREPAID MEDICAL
CARE COMPANY, ASSERTING TWO BASIC CHARGES:  FIRST, THAT THEY CONSPIRED
TO RESTRAIN AND MONOPOLIZE THE BUSINESS OF PROVIDING PREPAID MEDICAL
CARE IN THE STATE OF OREGON, AND, SECOND, THAT THEY CONSPIRED TO
RESTRAIN COMPETITION BETWEEN DOCTOR-SPONSORED PREPAID MEDICAL PLANS
WITHIN THE STATE OF OREGON IN THAT OREGON PHYSICIANS' SERVICE WOULD NOT
FURNISH PREPAID MEDICAL CARE IN AN AREA SERVICED BY A LOCAL SOCIETY
PLAN. 

THE DISTRICT JUDGE, AFTER A LONG TRIAL, DISMISSED THE COMPLAINT ON
THE GROUND THAT THE GOVERNMENT HAD PROVED NONE OF ITS CHARGES BY A
PREPONDERANCE OF EVIDENCE.  THE DIRECT APPEAL PROCEDURE DOES NOT GIVE
US THE BENEFIT OF REVIEW BY A COURT OF APPEALS OF FINDINGS OF FACT. 

THE APPEAL BRINGS TO US NO IMPORTANT QUESTIONS OF LAW OR UNSETTLED
PROBLEMS OF STATUTORY CONSTRUCTION.  IT IS MUCH LIKE UNITED STATES V.
YELLOW CAB CO., 338 U.S. 338.  ITS ISSUES ARE SOLELY ONES OF FACT.  THE
RECORD IS LONG, REPLETE WITH CONFLICTS IN TESTIMONY, AND INCLUDES
QUANTITIES OF DOCUMENTARY MATERIAL TAKEN FROM THE APPELLEES' FILES AND
LETTERS WRITTEN BY DOCTORS, EMPLOYERS, AND EMPLOYEES.  THE GOVERNMENT
AND THE APPELLEES EACH PUT MORE THAN TWO SCORE OF WITNESSES ON THE
STAND.  AT THE CLOSE OF THE TRIAL THE JUDGE STATED THAT HIS WORK "DOES
NOT PERMIT THE PREPARATION OF A FORMAL OPINION IN SO COMPLEX A CASE.  I
WILL STATE MY CONCLUSIONS ON THE MAIN ISSUES AND THEN WILL APPEND SOME
NOTES MADE AT VARIOUS STAGES THROUGHOUT THE TRIAL.  THESE MAY BE OF AID
TO COUNSEL IN THE PREPARATION OF FINDINGS OF FACT AND CONCLUSIONS OF
LAW TO BE SUBMITTED AS A BASIS FOR FINAL JUDGMENT."  95 F. SUPP., AT
104.  THESE NOTES INDICATED HIS DISPOSITION OF THE ISSUES, BUT THE
GOVERNMENT PREDICATES A SUGGESTION OF BIAS ON IRRELEVANT SOLILOQUIES ON
SOCIALIZED MEDICINE, SOCIALIZED LAW, AND THE LIKE, WHICH THEY
CONTAINED.  ADMITTING THAT THESE DO NOT ADD STRENGTH OR PERSUASIVENESS
TO HIS OPINION, THEY DO NOT BECLOUD HIS CLEAR DISPOSITION OF THE MAIN
ISSUES OF THE CASE, IN ALL OF WHICH HE RULED AGAINST THE GOVERNMENT. 
COUNSEL FOR THE DOCTORS SUBMITTED DETAILED FINDINGS IN ACCORDANCE
THEREWITH.  THE GOVERNMENT DID NOT SUBMIT REQUESTS TO FIND, BUT BY
LETTER RAISED OBJECTIONS TO VARIOUS PROPOSALS OF THE APPELLEES. 

THE TRIAL JUDGE FOUND THAT APPELLEES DID NOT CONSPIRE TO RESTRAIN OR
ATTEMPT TO MONOPOLIZE PREPAID MEDICAL CARE IN OREGON IN THE PERIOD 1936
1941, AND THAT, EVEN IF SUCH CONSPIRACY DURING THAT TIME WAS PROVED, IT
WAS ABANDONED IN 1941 WITH THE FORMATION OF OREGON PHYSICIANS' SERVICE
MARKING THE ENTRY OF APPELLEES INTO THE PREPAID MEDICAL CARE BUSINESS. 
HE RULED THAT WHAT RESTRAINTS WERE PROVED COULD BE JUSTIFIED AS
REASONABLE TO MAINTAIN PROPER STANDARDS OF MEDICAL ETHICS.  HE FOUND
THAT SUPPLYING PREPAID MEDICAL CARE WITHIN THE STATE OF OREGON BY
DOCTOR-SPONSORED ORGANIZATIONS DOES NOT CONSTITUTE TRADE OR COMMERCE
WITHIN THE MEANING OF THE SHERMAN ACT, BUT HE DECLINED TO RULE ON THE
QUESTION WHETHER SUPPLYING PREPAID MEDICAL CARE BY THE PRIVATE
ASSOCIATIONS IS INTERSTATE COMMERCE. 

THE GOVERNMENT ASKS US TO OVERRULE EACH OF THESE FINDINGS AS CONTRARY
TO THE EVIDENCE, AND TO FIND THAT THE BUSINESS OF PROVIDING PREPAID
MEDICAL CARE IS INTERSTATE COMMERCE.  WE ARE ASKED TO REVIEW THE FACTS
AND REVERSE AND REMAND THE CASE "FOR ENTRY OF A DECREE GRANTING
APPROPRIATE RELIEF."  WE ARE ASKED IN SUBSTANCE TO TRY THE CASE DE NOVO
ON THE RECORD, MAKE FINDINGS AND DETERMINE THE NATURE AND FORM OF
RELIEF.  WE HAVE HERETOFORE DECLINED TO GIVE SUCH SCOPE TO OUR REVIEW. 
UNITED STATES V. YELLOW CAB CO., SUPRA.

WHILE CONGRESS HAS PROVIDED DIRECT APPEAL TO THIS COURT, IT ALSO HAS
PROVIDED THAT WHERE AN ACTION IS TRIED BY A COURT WITHOUT A JURY
"FINDINGS OF FACT SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, AND
DUE REGARD SHALL BE GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO
JUDGE OF THE CREDIBILITY OF THE WITNESSES."  RULE 52(A), FED. RULES
CIV. PROC. THERE IS NO CASE MORE APPROPRIATE FOR ADHERENCE TO THIS RULE
THAN ONE IN WHICH THE COMPLAINING PARTY CREATES A VAST RECORD OF
CUMULATIVE EVIDENCE AS TO LONG-PAST TRANSACTIONS, MOTIVES, AND
PURPOSES, THE EFFECT OF WHICH DEPENDS LARGELY ON CREDIBILITY OF
WITNESSES. 

THE TRIAL COURT REJECTED A GROUPING BY THE GOVERNMENT OF ITS
EVIDENTIARY FACTS INTO FOUR PERIODS, 1930-1936, THE YEAR 1936, 1936
1941, AND 1941 TO TRIAL.  THAT PROPOSAL PROJECTED THE INQUIRY OVER AN
EIGHTEEN-YEAR PERIOD BEFORE THE ACTION WAS INSTITUTED.  THE COURT
ACCEPTED ONLY THE PERIOD SINCE THE ORGANIZATION OF OREGON PHYSICIANS'
SERVICE AS SIGNIFICANT AND REJECTED THE EARLIER YEARS AS "ANCIENT
HISTORY" OF A TIME "WHEN THE DOCTORS WERE TRYING TO FIND THEMSELVES
...  .  IT WAS A PERIOD OF GROPING FOR THE CORRECT POSITION TO TAKE TO
ACCORD WITH CHANGING TIMES."  95 F. SUPP., AT 105.  OF COURSE, PRESENT
EVENTS HAVE ROOTS IN THE PAST, AND IT IS QUITE PROPER TO TRACE
CURRENTLY QUESTIONED CONDUCT BACKWARDS TO ILLUMINATE ITS CONNECTIONS
AND MEANINGS.  BUT WE THINK THE TRIAL JUDGE WAS QUITE RIGHT IN
REJECTING PRE-1941 EVENTS AS ESTABLISHING THE CAUSE OF ACTION THE
GOVERNMENT WAS TRYING TO MAINTAIN, AND ADOPT HIS DIVISION OF THE TIME
INVOLVED INTO TWO PERIODS, 1936-1941, AND 1941 TO TRIAL. 

IT WILL SIMPLIFY CONSIDERATION OF SUCH CASES AS THIS TO KEEP IN SIGHT
THE TARGET AT WHICH RELIEF IS AIMED.  THE SOLE FUNCTION OF AN ACTION
FOR INJUNCTION IS TO FORESTALL FUTURE VIOLATIONS.  IT IS SO UNRELATED
TO PUNISHMENT OR REPARATIONS FOR THOSE PAST THAT ITS PENDENCY OR
DECISION DOES NOT PREVENT CONCURRENT OR LATER REMEDY FOR PAST
VIOLATIONS BY INDICTMENT OR ACTION FOR DAMAGES BY THOSE INJURED.  ALL
IT TAKES TO MAKE THE CAUSE OF ACTION FOR RELIEF BY INJUNCTION IS A REAL
THREAT OF FUTURE VIOLATION OR A CONTEMPORARY VIOLATION OF A NATURE
LIKELY TO CONTINUE OR RECUR.  THIS ESTABLISHED, IT ADDS NOTHING THAT
THE CALENDAR OF YEARS GONE BY MIGHT HAVE BEEN FILLED WITH
TRANSGRESSIONS.  EVEN WHERE RELIEF IS MANDATORY IN FORM, IT IS TO UNDO
EXISTING CONDITIONS, BECAUSE OTHERWISE THEY ARE LIKELY TO CONTINUE.  IN
A FORWARD-LOOKING ACTION SUCH AS THIS, AN EXAMINATION OF "A GREAT
AMOUNT OF ARCHEOLOGY" (FN4) IS JUSTIFIED ONLY WHEN IT ILLUMINATES OR
EXPLAINS THE PRESENT AND PREDICTS THE SHAPE OF THINGS TO COME. 

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.  LOCAL 167
V. UNITED STATES, 291 U.S. 293, 298.  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.  CF. UNITED
STATES V. UNITED STATES STEEL CORP., 251 U.S. 417, 445. 

BUT WE FIND NOT THE SLIGHTEST REASON TO DOUBT THE GENUINENESS, GOOD
FAITH OR PERMANENCE OF THE CHANGED ATTITUDE AND STRATEGY OF THESE
DEFENDANT-APPELLEES WHICH TOOK PLACE IN 1941.  IT OCCURRED SEVEN YEARS
BEFORE THIS SUIT WAS COMMENCED AND, SO FAR AS WE ARE INFORMED, BEFORE
IT WAS PREDICTABLE.  IT DID NOT CONSIST MERELY OF PRETENSIONS OR
PROMISES BUT WAS AN OVERT AND VISIBLE REVERSAL OF POLICY, CARRIED OUT
BY EXTENSIVE OPERATIONS WHICH HAVE EVERY APPEARANCE OF BEING PERMANENT
BECAUSE WISE AND ADVANTAGEOUS FOR THE DOCTORS.  THE RECORD DISCLOSES NO
THREAT OR PROBABILITY OF RESUMPTION OF THE ABANDONED WARFARE AGAINST
PREPAID MEDICAL SERVICE AND THE CONTRACT PRACTICE IT ENTAILS.  WE AGREE
WITH THE TRIAL COURT THAT CONDUCT DISCONTINUED IN 1941 DOES NOT WARRANT
THE ISSUANCE OF AN INJUNCTION IN 1949.  INDUSTRIAL ASSN. V. UNITED
STATES, 268 U.S. 64, 84. 

APPELLEES, IN PROVIDING PREPAID MEDICAL CARE, MAY ENGAGE IN
ACTIVITIES WHICH VIOLATE THE ANTITRUST LAWS.  THEY ARE NOW COMPETITORS
IN THE FIELD AND RESTRAINTS, IF ANY ARE TO BE EXPECTED, WILL BE IN
THEIR METHODS OF PROMOTION AND OPERATION OF THEIR OWN PREPAID PLAN. 
OUR DUTY IS TO INQUIRE WHETHER ANY RESTRAINTS HAVE BEEN PROVED OF A
CHARACTER LIKELY TO CONTINUE IF NOT ENJOINED. 

STRIKING THE EVENTS PRIOR TO 1941 OUT OF THE GOVERNMENT'S CASE,
EXCEPT FOR PURPOSES OF ILLUSTRATION OR BACKGROUND INFORMATION, LITTLE
OF SUBSTANCE IS LEFT.  THE CASE DERIVED ITS COLORATION AND SUPPORT
ALMOST ENTIRELY FROM THE ABANDONED PRACTICES.  IT WOULD PROLONG THIS
OPINION BEYOND USEFUL LENGTH, TO REVIEW EVIDENTIARY DETAILS PECULIAR TO
THIS CASE.  WE MENTION WHAT APPEAR TO BE SOME HIGHLIGHTS.    ONLY THE
MULTNOMAH COUNTY MEDICAL SOCIETY RESORTED TO EXPULSIONS OF DOCTORS
BECAUSE OF CONTRACT-PRACTICE ACTIVITIES, AND THERE HAVE BEEN NO
EXPULSIONS FOR SUCH CAUSE SINCE 1941.  THERE WERE HINTS IN THE
TESTIMONY THAT MULTNOMAH WAS REVIVING THE EXPULSION THREAT A SHORT TIME
BEFORE THIS ACTION WAS COMMENCED, BUT NOTHING CAME OF IT, AND WHAT THAT
SOCIETY MIGHT DO WITHIN THE LIMITS OF ITS OWN MEMBERSHIP DOES NOT
NECESSARILY INDICATE A JOINT VENTURE OR CONSPIRACY WITH OTHER
APPELLEES. 

SOME EMPHASIS IS PLACED ON A REPORT OF A MEETING OF THE HOUSE OF
DELEGATES OF THE STATE SOCIETY AT WHICH IT WAS VOTED THAT THE "PRIVATE
PATIENT STATUS" POLICY THERETOFORE APPLIED TO PRIVATE COMMERCIAL
HOSPITAL ASSOCIATION CONTRACTS BE EXTENDED TO THE INDUSTRIAL AND
RAILROAD TYPE OF CONTRACTS.  ANY SIGNIFICANCE OF THIS PROVISION SEEMS
NEUTRALIZED BY ANOTHER PARAGRAPH IN THE SAME REPORT, WHICH READS:  "A
RECEIPT SHOULD BE FURNISHED EACH PATIENT AT THE TIME OF EACH VISIT, AS
IT IS UNDERSTOOD THE INDUSTRIAL AND RAILROAD PLAN COMPANIES CONCERNED
WILL PROBABLY ESTABLISH A PROGRAM OF REIMBURSEMENT TO THE AFFECTED
EMPLOYEES."  THAT DOES NOT STRIKE US AS A THREAT TO RESTRICT THE
PRACTICE OF INDUSTRIAL AND RAILROAD COMPANIES OF REIMBURSING EMPLOYEES
FOR MEDICAL EXPENSES AND WE CANNOT SAY THAT ANY AMBIGUITY WAS NOT
PROPERLY RESOLVED IN APPELLEES' FAVOR BY THE TRIAL COURT. 

THE RECORD CONTAINS A NUMBER OF LETTERS FROM DOCTORS TO PRIVATE
ASSOCIATIONS REFUSING TO ACCEPT CHECKS DIRECTLY FROM THEM.  SOME BASE
REFUSAL ON A POLICY OF THEIR LOCAL MEDICAL SOCIETY, OTHERS ARE SILENT
AS TO REASONS.  SOME MAY BE ATTRIBUTED TO THE WRITERS' PERSONAL
RESISTANCE TO DEALING DIRECTLY WITH THE PRIVATE HEALTH ASSOCIATIONS,
FOR IT IS CLEAR THAT MANY DOCTORS OBJECTED TO FILLING OUT THE COMPANY
FORMS AND SUPPLYING DETAILS REQUIRED BY THE ASSOCIATIONS, AND PREFERRED
TO CONFINE THEMSELVES TO DIRECT DEALING WITH THE PATIENT AND LEAVING
THE PATIENT TO DEAL WITH THE ASSOCIATIONS.  SOME WRITERS MAY HAVE
MISTAKEN OR MISUNDERSTOOD THE POLICY OF LOCAL ASSOCIATIONS.  OTHERS MAY
HAVE AVOIDED DISCLOSURE OF PERSONAL OPPOSITION BY THE HANDY AND
IMPERSONAL EXCUSE OF ASSOCIATION "POLICY."  THE LETTERS HAVE SOME
EVIDENTIARY VALUE, BUT IT IS NOT COMPELLING AND, WEIGHED AGAINST THE
OTHER POST-1941 EVIDENCE, DOES NOT SATISFY US THAT THE TRIAL COURT'S
FINDINGS ARE "CLEARLY ERRONEOUS." 

SINCE NO CONCERTED REFUSAL TO DEAL WITH PRIVATE HEALTH ASSOCIATIONS
HAS BEEN PROVED, WE NEED NOT DECIDE WHETHER IT WOULD VIOLATE THE
ANTITRUST LAWS.  WE MIGHT OBSERVE IN PASSING, HOWEVER, THAT THERE ARE
ETHICAL CONSIDERATIONS WHERE THE HISTORIC DIRECT RELATIONSHIP BETWEEN
PATIENT AND PHYSICIAN IS INVOLVED WHICH ARE QUITE DIFFERENT THAN THE
USUAL CONSIDERATIONS PREVAILING IN ORDINARY COMMERCIAL MATTERS.  THIS
COURT HAS RECOGNIZED THAT FORMS OF COMPETITION USUAL IN THE BUSINESS
WORLD MAY BE DEMORALIZING TO THE ETHICAL STANDARDS OF A PROFESSION. 
SEMLER V. OREGON STATE BOARD OF DENTAL EXAMINERS, 294 U.S. 608. 

APPELLEES' EVIDENCE TO DISPROVE CONSPIRACY IS NOT CONCLUSIVE, IS
NECESSARILY LARGELY NEGATIVE, BUT IS TOO PERSUASIVE FOR US TO SAY IT
WAS CLEAR ERROR TO ACCEPT IT.  IN 1948, 1,210 OF THE 1,660 LICENSED
PHYSICIANS IN OREGON WERE MEMBERS OF THE OREGON STATE MEDICAL SOCIETY,
AND BETWEEN JANUARY 1, 1947, AND JUEN 30, 1948, 1,085 OREGON DOCTORS
BILLED AND RECEIVED PAYMENT DIRECTLY FROM THE INDUSTRIAL HOSPITAL
ASSOCIATION, ONLY ONE OF THE SEVERAL PRIVATE PLANS OPERATING IN THE
STATE.  SURELY THERE WAS NO EFFECTIVE BOYCOTT, AND INEFFECTIVENESS, IN
VIEW OF THE POWER OVER ITS MEMBERS WHICH THE GOVERNMENT ATTRIBUTES TO
THE SOCIETY, STRONGLY SUGGESTS THE LACK OF AN ATTEMPT TO BOYCOTT THESE
PRIVATE ASSOCIATIONS.  A PARADE OF LOCAL MEDICAL SOCIETY MEMBERS FROM
ALL PARTS OF THE STATE, APPARENTLY REPUTABLE, CREDIBLE, AND INFORMED
PROFESSIONAL MEN, TESTIFIED THAT THEIR SOCIETIES NOW HAVE NO POLICY OF
DISCRIMINATION AGAINST PRIVATE HEALTH ASSOCIATIONS, AND THAT NO
ATTEMPTS ARE MADE TO PREVENT INDIVIDUAL DOCTORS FROM COOPERATING WITH
THEM.  MEMBERS OF THE GOVERNING COUNCILS OF THE STATE AND MULTNOMAH
COUNTY SOCIETIES TESTIFIED THAT SINCE 1940 THERE HAVE BEEN NO
SUGGESTIONS IN THEIR MEETINGS OF ATTEMPTS TO PREVENT INDIVIDUAL DOCTORS
FROM SERVING PRIVATE ASSOCIATIONS.  THE MANAGER OF OREGON PHYSICIANS'
SERVICE TESTIFIED THAT AT NONE OF THE MANY MEETINGS AND CONFERENCES OF
LOCAL SOCIETIES ATTENDED BY HIM DID HE HEAR ANY PROPOSAL TO PREVENT
DOCTORS FROM COOPERATION WITH PRIVATE PLANS. 

IF THE TESTIMONY OF THESE MANY RESPONSIBLE WITNESSES IS GIVEN CREDIT,
NO FINDING OF CONSPIRACY TO RESTRAIN OR MONOPOLIZE THIS BUSINESS COULD
BE SUSTAINED.  CERTAINLY WE CANNOT SAY THAT THE TRIAL COURT'S REFUSAL
TO FIND SUCH A CONSPIRACY WAS CLEARLY ERRONEOUS. 

THE OTHER CHARGE IS THAT APPELLEES CONSPIRED TO RESTRAIN COMPETITION
BETWEEN THE SEVERAL DOCTOR-SPONSORED ORGANIZATIONS WITHIN THE STATE OF
OREGON.  THE CHARGE HERE, AS WE UNDERSTAND IT FROM PARAGRAPH 33(I) OF
THE COMPLAINT, 95 F. SUPP., AT 124, IS THAT OREGON PHYSICIANS' SERVICE,
THE STATE-WIDE ORGANIZATION, AND THE COUNTY-MEDICAL-SOCIETY-SPONSORED
PLANS AGREED NOT TO COMPETE WITH ONE ANOTHER.  APPARENTLY IF A COUNTY
WAS PROVIDED WITH PREPAID MEDICAL CARE BY A LOCAL SOCIETY, THE STATE
SOCIETY WOULD STAY OUT, OR IF THE COUNTY SOCIETY WANTED TO INAUGURATE A
LOCAL PLAN, THE STATE SOCIETY WOULD WITHDRAW FROM THE AREA. 

THIS IS NOT A SITUATION WHERE SUPPLIERS OF COMMERCIAL COMMODITIES
DIVIDE TERRITORIES AND MAKE RECIPROCAL AGREEMENTS TO EXPLOIT ONLY THE
ALLOTTED MARKET, THEREBY DEPRIVING ALLOCATED COMMUNITIES OF
COMPETITION.  THIS PREPAID PLAN DOES NOT SUPPLY TO, AND ITS ALLOCATION
DOES NOT WITHHOLD FROM, ANY COMMUNITY MEDICAL SERVICE OR FACILITIES OF
ANY DESCRIPTION.  NO MATTER WHAT ORGANIZATION ISSUES THE CERTIFICATE,
IT WILL BE PERFORMED, IN THE MAIN, BY THE LOCAL DOCTORS.  THE
CERTIFICATE SERVES ONLY TO PREPAY THEIR FEES.  THE RESULT, IF THE STATE
ASSOCIATION SHOULD ENTER INTO LOCAL COMPETITION WITH THE COUNTY
ASSOCIATION, WOULD BE THAT THE INHABITANTS COULD PREPAY MEDICAL
SERVICES THROUGH EITHER ONE OF TWO MEDICAL SOCIETY CHANNELS.  THERE IS
NOT THE LEAST PROOF THAT DUPLICATING SOURCES OF THE PREPAID
CERTIFICATES WOULD MAKE THEM CHEAPER, MORE AVAILABLE OR WOULD RESULT IN
AN IMPROVED SERVICE OR HAVE ANY BENEFICIAL EFFECT ON ANYBODY.  THROUGH
THESE NONPROFIT ORGANIZATIONS THE DOCTORS OF EACH LOCALITY, IN
PRACTICAL EFFECT, OFFER THEIR SERVICES AND HOSPITALIZATION ON A PREPAID
BASIS INSTEAD OF ON THE USUAL CASH FEE OR CREDIT BASIS.  TO HOLD IT
ILLEGAL BECAUSE THEY DO NOT OFFER THEIR SERVICES SIMULTANEOUSLY AND IN
THE SAME LOCALITY THROUGH BOTH A STATE AND A COUNTY ORGANIZATION WOULD
BE TO REQUIRE THEM TO COMPETE WITH THEMSELVES IN SALE OF CERTIFICATES. 
UNDER THE CIRCUMSTANCES PROVED HERE, WE CANNOT REGARD THE AGREEMENT BY
THESE NONPROFIT ORGANIZATIONS NOT TO COMPETE AS AN UNREASONABLE
RESTRAINT OF TRADE IN VIOLATION OF THE SHERMAN ACT. 

WITH REGARD TO THIS CHARGE, THE COURT FOUND, "THE SALE OF MEDICAL
SERVICES, BY DOCTOR SPONSORED ORGANIZATIONS, AS CONDUCTED WITHIN THE
STATE OF OREGON, IS NOT TRADE OR COMMERCE WITHIN THE MEANING OF SECTION
1 OF THE SHERMAN ANTI-TRUST LAW, NOR IS IT COMMERCE WITHIN THE MEANING
OF THE CONSTITUTIONAL GRANT OF POWER TO CONGRESS 'TO REGULATE COMMERCE
...  AMONG THE SEVERAL STATES.'"  95 F. SUPP., AT 118.  IF THAT FINDING
IN BOTH ASPECTS IS NOT TO BE OVERTURNED AS CLEARLY ERRONEOUS, IT, OF
COURSE, DISPOSES OF THIS CHARGE, FOR IF THERE WAS NO RESTRAINT OF
INTERSTATE COMMERCE, THE CONDUCT CHARGED DOES NOT FALL WITHIN THE
PROHIBITIONS OF THE SHERMAN ACT. 

ALMOST EVERYTHING POINTED TO IN THE RECORD BY THE GOVERNMENT AS
EVIDENCE THAT INTERSTATE COMMERCE IS INVOLVED IN THIS CASE RELATES TO
ACROSS-STATE-LINE ACTIVITIES OF THE PRIVATE ASSOCIATIONS.  IT IS NOT
PROVEN, HOWEVER, TO BE ADVERSELY AFFECTED BY ANY ALLOCATION OF
TERRITORIES BY DOCTOR-SPONSORED PLANS.  SO FAR AS ANY EVIDENCE BROUGHT
TO OUR ATTENTION DISCLOSES, THE ACTIVITIES OF THE LATTER ARE WHOLLY
INTRASTATE.  THE GOVERNMENT DID SHOW THAT OREGON PHYSICIANS' SERVICE
MADE A NUMBER OF PAYMENTS TO OUT-OF-STATE DOCTORS AND HOSPITALS,
PRESUMABLY FOR TREATMENT OF POLICYHOLDERS WHO HAPPENED TO REMOVE OR
TEMPORARILY TO BE AWAY FROM OREGON WHEN NEED FOR SERVICE AROSE.  THESE
WERE, HOWEVER, FEW, SPORADIC AND INCIDENTAL.  CF. INDUSTRIAL ASSN. V.
UNITED STATES, SUPRA, AT 84. 

AMERICAN MEDICAL ASSN. V. UNITED STATES, 317 U.S. 519, DOES NOT STAND
FOR THE PROPOSITION THAT FURNISHING OF PREPAID MEDICAL CARE ON A LOCAL
PLANE IS INTERSTATE COMMERCE.  THAT WAS A PROSECUTION UNDER SEC. 3 OF
THE SHERMAN ACT OF A CONSPIRACY TO RESTRAIN TRADE OR COMMERCE IN THE
DISTRICT OF COLUMBIA.  INTERSTATE COMMERCE WAS NOT NECESSARY TO THE
OPERATION OF THE STATUTE THERE. 

WE CONCLUDE THAT THE GOVERNMENT HAS NOT CLEARLY PROVED ITS CHARGES. 
CERTAINLY THE COURT'S FINDINGS ARE NOT CLEARLY ERRONEOUS.  "A FINDING
IS 'CLEARLY ERRONEOUS' WHEN, ALTHOUGH THERE IS EVIDENCE TO SUPPORT IT,
THE REVIEWING COURT ON THE ENTIRE EVIDENCE IS LEFT WITH THE DEFINITE
AND FIRM CONVICTION THAT A MISTAKE HAS BEEN COMMITTED."  UNITED STATES
V. UNITED STATES GYPSUM CO., 333 U.S. 364, 395.  THE GOVERNMENT'S
CONTENTIONS HAVE BEEN PLAUSIBLY AND EARNESTLY ARGUED BUT THE RECORD
DOES NOT LEAVE US WITH ANY "DEFINITE AND FIRM CONVICTION THAT A MISTAKE
HAS BEEN COMMITTED." 

AS WAS APTLY STATED BY THE NEW YORK COURT OF APPEALS, ALTHOUGH IN A
CASE OF A RATHER DIFFERENT SUBSTANTIVE NATURE:  "FACE TO FACE WITH
LIVING WITNESSES THE ORIGINAL TRIER OF THE FACTS HOLDS A POSITION OF
ADVANTAGE FROM WHICH APPELLATE JUDGES ARE EXCLUDED.  IN DOUBTFUL CASES
THE EXERCISE OF HIS POWER OF OBSERVATION OFTEN PROVES THE MOST ACCURATE
METHOD OF ASCERTAINING THE TRUTH ...  . HOW CAN WE SAY THE JUDGE IS
WRONG?  WE NEVER SAW THE WITNESSES  ...  .  TO THE SOPHISTICATION AND
SAGACITY OF THE TRIAL JUDGE THE LAW CONFIDES THE DUTY OF APPRAISAL." 
BOYD V. BOYD, 252 N.Y. 422, 429, 169 N.E. 632, 634. 

AFFIRMANCE IS, OF COURSE, WITHOUT PREJUDICE TO FUTURE SUIT IF
PRACTICES IN CONDUCT OF THE OREGON PHYSICIANS' SERVICE OR THE COUNTY
SERVICES, WHETHER OR NOT INVOLVED IN THE PRESENT ACTION, SHALL THREATEN
OR CONSTITUTE VIOLATION OF THE ANTITRUST LAWS.  CF. UNITED STATES V.
READING CO., 226 U.S. 324, 373.  JUDGMENT AFFIRMED. 

FN1  PURSUANT TO SEC. 2 OF THE EXPEDITING ACT OF 1903, 32 STAT. 823,
AS AMENDED, 15 U.S.C. SEC. 29. 

FN2  95 F. SUPP. 103. 

FN3  26 STAT. 209, 15 U.S.C. SEC. 1:  "EVERY CONTRACT, COMBINATION IN
THE FORM OF TRUST OR OTHERWISE, OR CONSPIRACY, IN RESTRAINT OF TRADE OR
COMMERCE AMONG THE SEVERAL STATES  ...  IS DECLARED TO BE ILLEGAL  ...
." 

15 U.S.C. SEC. 2:  "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
...  SHALL BE DEEMED GUILTY OF A MISDEMEANOR  ...  ." 

FN4  JUDGE AUGUSTUS HAND, "TRIAL EFFICIENCY," DEALING WITH ANTITRUST
CASES, BUSINESS PRACTICES UNDER FEDERAL ANTITRUST LAWS, SYMPOSIUM, NEW
YORK STATE BAR ASSN. (C.C.H. 1951) 31-32.  SEE ALSO SEC. VIII,
PROCEDURE IN ANTI-TRUST AND OTHER PROTRACTED CASES, A REPORT ADOPTED
SEPTEMBER 26, 1951, BY THE JUDICIAL CONFERENCE OF THE UNITED STATES. 

MR. JUSTICE BLACK IS OF OPINION THAT THE JUDGMENT BELOW IS CLEARLY
ERRONEOUS AND SHOULD BE REVERSED. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













MADSEN V. KINSELLA 343 U.S. 341 


NO. 411.  ARGUED JANUARY 8, 1952 - DECIDED APRIL 28, 1952 - 188 F.2D
272, AFFIRMED. 


THE UNITED STATES COURT OF THE ALLIED HIGH COMMISSION FOR GERMANY HAD
JURISDICTION, IN 1950, TO TRY PETITIONER, A CIVILIAN CITIZEN OF THE
UNITED STATES WHO WAS THE DEPENDENT WIFE OF A MEMBER OF THE UNITED
STATES ARMED FORCES, ON A CHARGE OF MURDERING HER HUSBAND, IN OCTOBER
1949, WITHIN THE UNITED STATES AREA OF CONTROL IN GERMANY, IN VIOLATION
OF SEC. 211 OF THE GERMAN CRIMINAL CODE.  PP. 342-362. 

1.  BOTH UNITED STATES COURTS-MARTIAL AND UNITED STATES MILITARY
COMMISSIONS OR TRIBUNALS IN THE NATURE OF SUCH COMMISSIONS HAD
JURISDICTION IN GERMANY IN 1949-1950 TO TRY PERSONS IN THE STATUS OF
PETITIONER ON THE CHARGE AGAINST HER.  PP. 345-355. 

(A)  THE JURISDICTION OF UNITED STATES COURTS-MARTIAL OVER THIS CASE
WAS CONCURRENT WITH, NOT EXCLUSIVE OF, THAT OF THE OCCUPATION COURTS. 
PP. 345-355. 

(B)  THE PROVISIONS ADDED IN 1916 BY ARTICLES 2 AND 12 OF THE
ARTICLES OF WAR, EXTENDING THE JURISDICTION OF COURTS-MARTIAL OVER
CIVILIAN OFFENDERS AND OVER CERTAIN NONMILITARY OFFENSES, DID NOT
DEPRIVE MILITARY COMMISSIONS AND OTHER MILITARY TRIBUNALS OF WHATEVER
JURISDICTION THEY THEN HAD OVER SUCH OFFENDERS AND OFFENSES, SINCE THAT
CONCURRENT JURISDICTION WAS PRESERVED TO SUCH COMMISSIONS AND TRIBUNALS
BY ARTICLE 15.  PP. 350-355. 

2.  THE UNITED STATES COURTS OF THE ALLIED HIGH COMMISSION FOR GERMANY
WERE, AT THE TIME OF THE TRIAL OF PETITIONER'S CASE, TRIBUNALS IN THE
NATURE OF MILITARY COMMISSIONS CONFORMING TO THE CONSTITUTION AND LAWS
OF THE UNITED STATES.  PP. 356-360. 

(A)  THE FACT THAT THE OCCUPATION STATUTE TOOK EFFECT PRIOR TO THE
DATE OF THE CRIME DID NOT VITIATE THE CONSTITUTIONAL AUTHORITY FOR
PETITIONER'S TRIAL BY MILITARY COMMISSION.  P. 360. 

3.  PETITIONER AND THE OFFENSE CHARGED AGAINST HER CAME WITHIN THE
JURISDICTION ASSIGNED TO THE COURT WHICH TRIED HER.  PP. 360-362. 

(A)  MILITARY GOVERNMENT ORDINANCE NO. 31 EXPRESSLY GAVE TO THE
OCCUPATION COURTS JURISDICTION OVER CIVILIAN MEN AND WOMEN WHO WERE
SUBJECT TO MILITARY LAW, AND PETITIONER WAS A "PERSON SUBJECT TO
MILITARY LAW" WITHIN THE DEFINITION OF ARTICLE OF WAR 2(D).  PP. 360
361. 

(B)  THE REQUIREMENT OF ARTICLE 7 OF MILITARY GOVERNMENT ORDINANCE
NO. 31, THAT NO PERSON SUBJECT TO MILITARY LAW SHALL BE BROUGHT TO
TRIAL FOR ANY OFFENSE "EXCEPT UPON AUTHORIZATION OF THE COMMANDER-IN
CHIEF, EUROPEAN COMMAND," WAS SATISFIED IN THIS CASE.  P. 361. 

(C)  THE GERMAN CRIMINAL CODE WAS APPLICABLE TO PETITIONER'S OFFENSE
BY VIRTUE OF ITS EXPRESS ADOPTION BY THE UNITED STATES MILITARY
GOVERNMENT.  PP. 361-362. 

(D)  THE UNITED STATES EXPRESSLY REQUIRED THAT ITS CIVILIANS BE TRIED
BY ITS OCCUPATION COURTS RATHER THAN BY THE GERMAN COURTS.  P. 362. 

4.  THE JURISDICTION OF THE UNITED STATES COURTS OF THE ALLIED HIGH
COMMISSION FOR GERMANY TO TRY PETITIONER BEING ESTABLISHED, THE
JUDGMENT OF THE COURT OF APPEALS AFFIRMING THE DISCHARGE OF THE WRIT OF
HABEAS CORPUS FOR PETITIONER'S RELEASE FROM CUSTODY IS AFFIRMED.  P.
362. 

MADSEN V. KINSELLA, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING SEEKING PETITIONER'S RELEASE FROM
FEDERAL CUSTODY, THE DISTRICT COURT DISCHARGED THE WRIT AND REMANDED
PETITIONER TO THE CUSTODY OF RESPONDENT.  93 F. SUPP. 319.  THE COURT
OF APPEALS AFFIRMED.  188 F.2D 272.  THIS COURT GRANTED CERTIORARI. 
342 U.S. 865.  AFFIRMED, P. 362. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION HERE IS WHETHER A UNITED STATES COURT OF THE
ALLIED HIGH COMMISSION FOR GERMANY HAD JURISDICTION, IN 1950, TO TRY A
CIVILIAN CITIZEN OF THE UNITED STATES, WHO WAS THE DEPENDENT WIFE OF A
MEMBER OF THE UNITED STATES ARMED FORCES, ON A CHARGE OF MURDERING HER
HUSBAND IN VIOLATION OF SEC. 211 OF THE GERMAN CRIMINAL CODE.  THE
HOMICIDE OCCURRED IN OCTOBER, 1949, WITHIN THE UNITED STATES AREA OF
CONTROL IN GERMANY.  FOR THE REASONS HEREAFTER STATED, WE HOLD THAT
SUCH COURT HAD THAT JURISDICTION. 

THE PRESENT PROCEEDING ORIGINATES WITH A PETITION FOR A WRIT OF
HABEAS CORPUS FILED BY PETITIONER, YVETTE J. MADSEN, IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA,
SEEKING HER RELEASE FROM THE FEDERAL REFORMATORY FOR WOMEN IN WEST
VIRGINIA WHERE SHE IS SERVING A SENTENCE IMPOSED BY A UNITED STATES
COURT OF THE ALLIED HIGH COMMISSION FOR GERMANY.  SHE CONTENDS THAT HER
CONFINEMENT IS INVALID BECAUSE THE COURT WHICH CONVICTED AND SENTENCED
HER HAD NO JURISDICTION TO DO SO.  THE DISTRICT COURT, AFTER A HEARING
BASED ON EXHIBITS AND AGREED FACTS, DISCHARGED THE WRIT AND REMANDED
PETITIONER TO THE CUSTODY OF THE RESPONDENT WARDEN OF THE REFORMATORY. 
93 F. SUPP. 319.  THE COURT OF APPEALS AFFIRMED.  188 F.2D 272. 
BECAUSE OF THE IMPORTANCE AND NOVELTY OF THE JURISDICTIONAL ISSUES
RAISED, WE GRANTED CERTIORARI.  342 U.S. 865. 

1.  PETITIONER'S STATUS IN GERMANY.  - PETITIONER IS A NATIVE-BORN
CITIZEN OF THE UNITED STATES WHO LAWFULLY ENTERED THE AMERICAN ZONE OF
OCCUPIED GERMANY IN 1947 WITH HER HUSBAND, LIEUTENANT MADSEN OF THE
UNITED STATES AIR FORCE.  IN 1949, SHE RESIDED THERE, WITH HIM, IN A
HOUSE REQUISITIONED FOR MILITARY USE, FURNISHED AND MAINTAINED BY
MILITARY AUTHORITY.  SHE WAS PERMITTED TO USE THE FACILITIES OF THE
UNITED STATES ARMY MAINTAINED THERE FOR PERSONS IN ITS SERVICE AND FOR
THOSE SERVING WITH OR ACCOMPANYING THE UNITED STATES ARMED FORCES.  IN
BRIEF, HER STATUS WAS THAT OF A CIVILIAN DEPENDENT WIFE OF A MEMBER OF
THE UNITED STATES ARMED FORCES WHICH WERE THEN OCCUPYING THE UNITED
STATES AREA OF CONTROL IN GERMANY. 

OCTOBER 20, 1949, FOLLOWING HER FATAL SHOOTING OF HER HUSBAND AT
THEIR RESIDENCE IN BUCHSCHLEG, KREIS FRANKFURT, GERMANY, SHE WAS
ARRESTED THERE BY THE UNITED STATES AIR FORCE MILITARY POLICE.  ON THE
FOLLOWING DAY, BEFORE A "UNITED STATES MILITARY GOVERNMENT COURT,"
(FN1) SHE WAS CHARGED WITH THE MURDER OF HER HUSBAND IN VIOLATION OF
SEC. 211 OF THE GERMAN CRIMINAL CODE.  (FN2)  IN FEBRUARY, 1950, SHE
WAS TRIED BY "THE UNITED STATES COURT OF THE ALLIED HIGH COMMISSION FOR
GERMANY, FOURTH JUDICIAL DISTRICT."  (FN3)  THAT COURT WAS COMPOSED OF
THREE UNITED STATES CIVILIANS, TWO OF WHOM HAD BEEN APPOINTED AS
DISTRICT JUDGES AND ONE AS A MAGISTRATE BY OR UNDER THE AUTHORITY OF
THE MILITARY GOVERNOR OF THE UNITED STATES AREA OF CONTROL.  (FN4)  THE
COURT ADJUDGED HER GUILTY AND SENTENCED HER TO 15 YEARS IN THE FEDERAL
REFORMATORY FOR WOMEN AT ALDERSON, WEST VIRGINIA, OR ELSEWHERE AS THE
SECRETARY OF THE ARMY MIGHT DIRECT.  IN MAY, THE "COURT OF APPEALS OF
THE UNITED STATES COURTS OF THE ALLIED HIGH COMMISSION FOR GERMANY,"
COMPOSED OF FIVE UNITED STATES CIVILIANS APPOINTED BY THE MILITARY
GOVERNOR OF THE AREA, (FN5) AFFIRMED THE JUDGMENT BUT COMMITTED HER TO
THE CUSTODY OF THE ATTORNEY GENERAL OF THE UNITED STATES OR HIS
AUTHORIZED REPRESENTATIVE.  THE DIRECTOR OF THE UNITED STATES BUREAU OF
PRISONS DESIGNATED THE FEDERAL REFORMATORY FOR WOMEN AT ALDERSON, WEST
VIRGINIA, AS THE PLACE FOR HER CONFINEMENT.  (FN6) 

II.  BOTH UNITED STATES COURTS-MARTIAL, AND UNITED STATES MILITARY
COMMISSIONS OR TRIBUNALS IN THE NATURE OF SUCH COMMISSIONS, HAD
JURISDICTION IN GERMANY IN 1949-1950 TO TRY PERSONS IN THE STATUS OF
PETITIONER ON THE CHARGE AGAINST HER.  - PETITIONER DOES NOT HERE
ATTACK THE MERITS OF HER CONVICTION NOR DOES SHE CLAIM THAT ANY NON
MILITARY COURT OF THE UNITED STATES OR GERMANY HAD JURISDICTION TO TRY
HER.  (FN7)  IT IS AGREED BY THE PARTIES TO THIS PROCEEDING THAT A
REGULARLY CONVENED UNITED STATES GENERAL COURT-MARTIAL WOULD HAVE HAD
JURISDICTION TO TRY HER.  THE UNITED STATES, HOWEVER, CONTENDS, AND
PETITIONER DENIES, THAT THE UNITED STATES COURT OF THE ALLIED HIGH
COMMISSION FOR GERMANY, WHICH TRIED HER, ALSO HAD JURISDICTION TO DO
SO.  IN OTHER WORDS, THE UNITED STATES CONTENDS THAT ITS COURTS
MARTIAL'S JURISDICTION WAS CONCURRENT WITH THAT OF ITS OCCUPATION
COURTS, WHEREAS PETITIONER CONTENDS THAT IT WAS EXCLUSIVE OF THAT OF
ITS OCCUPATION COURTS. 

THE KEY TO THE ISSUE IS TO BE FOUND IN THE HISTORY OF UNITED STATES
MILITARY COMMISSIONS (FN8) AND OF UNITED STATES OCCUPATION COURTS IN
THE NATURE OF SUCH COMMISSIONS.  SINCE OUR NATION'S EARLIEST DAYS, SUCH
COMMISSIONS HAVE BEEN CONSTITUTIONALLY RECOGNIZED AGENCIES FOR MEETING
MANY URGENT GOVERNMENTAL RESPONSIBILITIES RELATED TO WAR.  (FN9)  THEY
HAVE BEEN CALLED OUR COMMON-LAW WAR COURTS.  (FN10)  THEY HAVE TAKEN
MANY FORMS AND BORNE MANY NAMES.  (FN11)  NEITHER THEIR PROCEDURE NOR
THEIR JURISDICTION HAS BEEN PRESCRIBED BY STATUTE.  IT HAS BEEN ADAPTED
IN EACH INSTANCE TO THE NEED THAT CALLED IT FORTH.  SEE IN RE
YAMASHITA, 327 U.S. 1, 18-23. 

IN THE ABSENCE OF ATTEMPTS BY CONGRESS TO LIMIT THE PRESIDENT'S
POWER, IT APPEARS THAT, AS COMMANDER-IN-CHIEF OF THE ARMY AND NAVY OF
THE UNITED STATES, HE MAY, IN TIME OF WAR, ESTABLISH AND PRESCRIBE THE
JURISDICTION AND PROCEDURE OF MILITARY COMMISSIONS, AND OF TRIBUNALS IN
THE NATURE OF SUCH COMMISSIONS, IN TERRITORY OCCUPIED BY ARMED FORCES
OF THE UNITED STATES.  HIS AUTHORITY TO DO THIS SOMETIMES SURVIVES
CESSATION OF HOSTILITIES.  (FN12)  THE PRESIDENT HAS THE URGENT AND
INFINITE RESPONSIBILITY NOT ONLY OF COMBATING THE ENEMY BUT OF
GOVERNING ANY TERRITORY OCCUPIED BY THE UNITED STATES BY FORCE OF
ARMS.  (FN13)  THE POLICY OF CONGRESS TO REFRAIN FROM LEGISLATING IN
THIS UNCHARTED AREA DOES NOT IMPLY ITS LACK OF POWER TO LEGISLATE. 
THAT EVIDENT RESTRAINT CONTRASTS WITH ITS TRADITIONAL READINESS TO
"MAKE RULES FOR THE GOVERNMENT AND REGULATIONS OF THE LAND AND NAVAL
FORCES; ...  ."  (FN14)  UNDER THAT CLAUSE CONGRESS HAS ENACTED AND
REPEATEDLY REVISED THE ARTICLES OF WAR WHICH HAVE PRESCRIBED, WITH
PARTICULARITY, THE JURISDICTION AND PROCEDURE OF THE UNITED STATES
COURTS-MARTIAL. 

ORIGINALLY CONGRESS GAVE TO COURTS-MARTIAL JURISDICTION OVER ONLY
MEMBERS OF THE ARMED FORCES AND CIVILIANS RENDERING FUNCTIONAL SERVICE
TO THE ARMED FORCES IN CAMP OR IN THE FIELD.  (FN15) SIMILARLY THE
ARTICLES OF WAR AT FIRST DEALT WITH NONMILITARY CRIMES ONLY BY
SURRENDERING THE ACCUSED TO THE CIVIL AUTHORITIES.  ART. 33, AMERICAN
ARTICLES OF WAR OF 1806, WINTHROP'S MILITARY LAW AND PRECEDENTS (2D ED.
1920 REPRINT) 979.  HOWEVER, IN 1863, THIS LATTER JURISDICTION WAS
ENLARGED TO INCLUDE MANY CRIMES "COMMITTED BY PERSONS WHO ARE IN THE
MILITARY SERVICE OF THE UNITED STATES  ...  ."  (FN16) STILL IT DID NOT
COVER CRIMES COMMITTED BY CIVILIANS WHO, LIKE PETITIONER, WERE MERELY
ACCOMPANYING A MEMBER OF THE ARMED FORCES. 

FINALLY, IN 1916, WHEN CONGRESS DID REVISE THE ARTICLES OF WAR SO AS
TO EXTEND THE JURISDICTION OF COURTS-MARTIAL TO INCLUDE CIVILIAN
OFFENDERS IN THE STATUS OF PETITIONER, IT EXPRESSLY PRESERVED TO
"MILITARY COMMISSIONS, PROVOST COURTS, OR OTHER MILITARY TRIBUNALS" ALL
OF THEIR EXISTING CONCURRENT JURISDICTION BY ADDING A NEW ARTICLE WHICH
READ IN PART AS FOLLOWS:

                              "II.  COURTS-MARTIAL. 

*         *         *         *         *

               "C.  JURISDICTION. 

     *         *      *         *         * 

"ART. 15.  NOT EXCLUSIVE.  - THE PROVISIONS OF THESE ARTICLES
CONFERRING JURISDICTION UPON COURTS-MARTIAL SHALL NOT BE CONSTRUED AS
DEPRIVING MILITARY COMMISSIONS, PROVOST COURTS, OR OTHER MILITARY
TRIBUNALS OF CONCURRENT JURISDICTION IN RESPECT OF OFFENDERS OR
OFFENSES THAT BY THE LAW OF WAR MAY BE LAWFULLY TRIABLE BY SUCH
MILITARY COMMISSIONS, PROVOST COURTS, OR OTHER MILITARY TRIBUNALS."  39
STAT. 651, 652, 653.  (FN17) 

ARTICLE 15 THUS FORESTALLED PRECISELY THE CONTENTION NOW BEING MADE
BY PETITIONER.  THAT CONTENTION IS THAT CERTAIN PROVISIONS, ADDED IN
1916 BY ARTICLES 2 AND 12 EXTENDING THE JURISDICTION OF COURTS-MARTIAL
OVER CIVILIAN OFFENDERS AND OVER CERTAIN NONMILITARY OFFENSES,
AUTOMATICALLY DEPRIVED MILITARY COMMISSIONS AND OTHER MILITARY
TRIBUNALS OF WHATEVER EXISTING JURISDICTION THEY THEN HAD OVER SUCH
OFFENDERS AND OFFENSES.  ARTICLES 2 AND 12, TOGETHER, EXTENDED THE
JURISDICTION OF COURTS-MARTIAL SO AS TO INCLUDE "ALL PERSONS
ACCOMPANYING OR SERVING WITH THE ARMIES OF THE UNITED STATES WITHOUT
THE TERRITORIAL JURISDICTION OF THE UNITED STATES  ...  ."  (FN18)  THE
1916 ACT ALSO INCREASED THE NONMILITARY OFFENSES FOR WHICH CIVILIAN
OFFENDERS COULD BE TRIED BY COURTS-MARTIAL.  (FN19)  ARTICLE 15,
HOWEVER, COMPLETELY DISPOSES OF THAT CONTENTION.  IT STATES
UNEQUIVOCALLY THAT CONGRESS HAS NOT DEPRIVED SUCH COMMISSIONS OR
TRIBUNALS OF THE EXISTING JURISDICTION WHICH THEY HAD OVER SUCH
OFFENDERS AND OFFENSES AS OF AUGUST 29, 1916.  39 STAT. 653, 670.  SEE
IN RE YAMASHITA, 327 U.S. 1, AND EX PARTE QUIRIN, 317 U.S. 1. 

THE LEGISLATIVE HISTORY STRENGTHENS THE GOVERNMENT'S POSITION. 
DURING THE CONSIDERATION BY CONGRESS OF THE PROPOSED ARTICLES OF WAR,
IN 1916, JUDGE ADVOCATE GENERAL OF THE ARMY CROWDER SPONSORED ARTICLE
15 AND THE AUTHORITATIVE NATURE OF HIS TESTIMONY HAS BEEN RECOGNIZED BY
THIS COURT.  IN RE YAMASHITA, SUPRA, AT 19 NOTE, 67-71.  BEFORE THE
SENATE SUBCOMMITTEE ON MILITARY AFFAIRS, HE SAID: 

"ARTICLE 15 IS NEW.  WE HAVE INCLUDED IN ARTICLE 2 AS SUBJECT TO
MILITARY LAW A NUMBER OF PERSONS WHO ARE ALSO SUBJECT TO TRIAL BY
MILITARY COMMISSION.  A MILITARY COMMISSION IS OUR COMMON-LAW WAR
COURT.  IT HAS NO STATUTORY EXISTENCE, THOUGH IT IS RECOGNIZED BY
STATUTE LAW.  AS LONG AS THE ARTICLES EMBRACED THEM IN THE DESIGNATION
'PERSONS SUBJECT TO MILITARY LAW,' AND PROVIDED THAT THEY MIGHT BE
TRIED BY COURT-MARTIAL, I WAS AFRAID THAT, HAVING MADE A SPECIAL
PROVISION FOR THEIR TRIAL BY COURT-MARTIAL, IT MIGHT BE HELD THAT THE
PROVISION OPERATED TO EXCLUDE TRIALS BY MILITARY COMMISSION AND OTHER
WAR COURTS; SO THIS NEW ARTICLE WAS INTRODUCED:  ...  ." 

"IT JUST SAVES TO THESE WAR COURTS THE JURISDICTION THEY NOW HAVE AND
MAKES IT A CONCURRENT JURISDICTION WITH COURTS-MARTIAL, SO THAT THE
MILITARY COMMANDER IN THE FIELD IN TIME OF WAR WILL BE AT LIBERTY TO
EMPLOY EITHER FORM OF COURT THAT HAPPENS TO BE CONVENIENT."  S. REP.
NO. 130, 64TH CONG., 1ST SESS. 40.  (FN20) 

THE CONCURRENT JURISDICTION THUS PRESERVED IS THAT WHICH "BY STATUTE
OR BY THE LAW OF WAR MAY BE TRIABLE BY SUCH MILITARY COMMISSIONS,
PROVOST COURTS, OR OTHER MILITARY TRIBUNALS."  39 STAT. 653, 41 STAT.
790, 10 U.S.C. SEC. 1486.  THE "LAW OF WAR" IN THAT CONNECTION INCLUDES
AT LEAST THAT PART OF THE LAW OF NATIONS WHICH DEFINES THE POWERS AND
DUTIES OF BILLIGERENT POWERS OCCUPYING ENEMY TERRITORY PENDING THE
ESTABLISHMENT OF CIVIL GOVERNMENT.  (FN21)  THE JURISDICTION EXERCISED
BY OUR MILITARY COMMISSIONS IN THE EXAMPLES PREVIOUSLY MENTIONED
EXTENDED TO NONMILITARY CRIMES, SUCH AS MURDER AND OTHER CRIMES OF
VIOLENCE, WHICH THE UNITED STATES AS THE OCCUPYING POWER FELT IT
NECESSARY TO SUPPRESS.  IN THE CASE OF IN RE YAMASHITA, 327 U.S. 1, 20,
FOLLOWING A QUOTATION FROM ARTICLE 15, THIS COURT SAID, "BY THUS
RECOGNIZING MILITARY COMMISSIONS IN ORDER TO PRESERVE THEIR TRADITIONAL
JURISDICTION OVER ENEMY COMBATANTS UNIMPAIRED BY THE ARTICLES, CONGRESS
GAVE SANCTION, AS WE HELD IN EX PARTE QUIRIN, TO ANY USE OF THE
MILITARY COMMISSION CONTEMPLATED BY THE COMMON LAW OF WAR."  (FN22)
THE ENLARGED JURISDICTION OF THE COURTS-MARTIAL THEREFORE DID NOT
EXCLUDE THE CONCURRENT JURISDICTION OF MILITARY COMMISSIONS AND OF
TRIBUNALS IN THE NATURE OF SUCH COMMISSIONS. 

III.  THE UNITED STATES COURTS OF THE ALLIED HIGH COMMISSION FOR
GERMANY WERE, AT THE TIME OF THE TRIAL OF PETITIONER'S CASE, TRIBUNALS
IN THE NATURE OF MILITARY COMMISSIONS CONFORMING TO THE CONSTITUTION
AND LAWS OF THE UNITED STATES.  - UNDER THE AUTHORITY OF THE PRESIDENT
AS COMMANDER-IN-CHIEF OF THE UNITED STATES ARMED FORCES OCCUPYING A
CERTAIN AREA OF GERMANY CONQUERED BY THE ALLIES, THE SYSTEM OF
OCCUPATION COURTS NOW BEFORE US DEVELOPED GRADUALLY.  THE OCCUPATION
COURTS IN GERMANY ARE DESIGNED ESPECIALLY TO MEET THE NEEDS OF LAW
ENFORCEMENT IN THAT OCCUPIED TERRITORY IN RELATION TO CIVILIANS AND TO
NONMILITARY OFFENSES.  THOSE COURTS HAVE BEEN DIRECTED TO APPLY THE
GERMAN CRIMINAL CODE LARGELY AS IT WAS THERETOFORE IN FORCE.  (SEE
APPENDIX, INFRA, PP. 362-371, ENTITLED "CHRONOLOGY OF ESTABLISHMENT OF
UNITED STATES MILITARY GOVERNMENT COURTS AND THEIR JURISDICTION OVER
CIVILIANS IN THE UNITED STATES AREA OF CONTROL IN GERMANY 1945-1950.") 
THE PRESIDENT, AS COMMANDER-IN-CHIEF OF THE ARMY AND NAVY, IN 1945
ESTABLISHED, THROUGH THE COMMANDING GENERAL OF THE UNITED STATES FORCES
IN THE EUROPEAN THEATER, A UNITED STATES MILITARY GOVERNMENT FOR
GERMANY WITHIN THE UNITED STATES AREA OF CONTROL.  MILITARY GOVERNMENT
COURTS, IN THE NATURE OF MILITARY COMMISSIONS, WERE THEN A PART OF THE
MILITARY GOVERNMENT.  BY OCTOBER 20, 1949, WHEN PETITIONER WAS ALLEGED
TO HAVE COMMITTED THE OFFENSE CHARGED AGAINST HER, THOSE COURTS WERE
KNOWN AS UNITED STATES MILITARY GOVERNMENT COURTS.  THEY WERE VESTED
WITH JURISDICTION TO ENFORCE THE GERMAN CRIMINAL CODE IN RELATION TO
CIVILIANS IN PETITIONER'S STATUS IN THE AREA WHERE THE HOMICIDE
OCCURRED. 

SEPTEMBER 21, 1949, THE OCCUPATION STATUTE HAD TAKEN EFFECT.  UNDER
IT THE PRESIDENT VESTED THE AUTHORITY OF THE UNITED STATES MILITARY
GOVERNMENT IN A CIVILIAN ACTING AS THE UNITED STATES HIGH COMMISSIONER
FOR GERMANY.  HE GAVE THAT COMMISSIONER "AUTHORITY, UNDER THE IMMEDIATE
SUPERVISION OF THE SECRETARY OF STATE (SUBJECT, HOWEVER, TO
CONSULTATION WITH AND ULTIMATE DIRECTION BY THE PRESIDENT), TO EXERCISE
ALL OF THE GOVERNMENTAL FUNCTIONS OF THE UNITED STATES IN GERMANY
(OTHER THAN THE COMMAND OF TROOPS)  .. .  ."  EXECUTIVE ORDER 10062,
JUNE 6, 1949, 14 FED. REG. 2965, APPENDIX, INFRA, P. 367; OFFICE OF THE
UNITED STATES HIGH COMMISSIONER FOR GERMANY, STAFF ANNOUNCEMENT NO. 1,
SEPTEMBER 21, 1949, APPENDIX, INFRA, P. 368.  UNDER THE TRANSITIONAL
PROVISIONS OF ALLIED HIGH COMMISSION, LAW NO. 3, ARTICLE 5, 14 FED.
REG. 7458, APPENDIX, INFRA, P. 369, PREEXISTING LEGISLATION WAS APPLIED
TO THE APPROPRIATE NEW AUTHORITIES.  FINALLY BY ALLIED HIGH COMMISSION,
LAW NO. 1, ARTICLE 1, 15 FED. REG. 2086, APPENDIX, INFRA.  P. 370,
EFFECTIVE JANUARY 1, 1950, THE NAME OF THE "UNITED STATES MILITARY
GOVERNMENT COURTS FOR GERMANY" WAS CHANGED TO "UNITED STATES COURTS OF
THE ALLIED HIGH COMMISSION FOR GERMANY."  THEY DERIVED THEIR AUTHORITY
FROM THE PRESIDENT AS OCCUPATION COURTS, OR TRIBUNALS IN THE NATURE OF
MILITARY COMMISSIONS, IN AREAS STILL OCCUPIED BY UNITED STATES TROOPS. 
ALTHOUGH THE LOCAL GOVERNMENT WAS NO LONGER A "MILITARY GOVERNMENT," IT
WAS A GOVERNMENT PRESCRIBED BY AN OCCUPYING POWER AND IT DEPENDED UPON
THE CONTINUING MILITARY OCCUPANCY OF THE TERRITORY. 

THE GOVERNMENT OF THE OCCUPIED AREA THUS PASSED MERELY FROM THE
CONTROL OF THE UNITED STATES DEPARTMENT OF DEFENSE TO THAT OF THE
UNITED STATES DEPARTMENT OF STATE.  THE MILITARY FUNCTIONS CONTINUED TO
BE IMPORTANT AND WERE ADMINISTERED UNDER THE DIRECTION OF THE COMMANDER
OF THE UNITED STATES ARMED FORCES IN GERMANY.  HE REMAINED UNDER ORDERS
TO TAKE THE NECESSARY MEASURES, ON REQUEST OF THE UNITED STATES HIGH
COMMISSIONER, FOR THE MAINTENANCE OF LAW AND ORDER AND TO TAKE SUCH
OTHER ACTION AS MIGHT BE REQUIRED TO SUPPORT THE POLICY OF THE UNITED
STATES IN GERMANY.  EXECUTIVE ORDER 10062, SUPRA. 

THE JUDGES WHO SERVED ON THE OCCUPATION COURTS WERE CIVILIANS,
APPOINTED BY THE UNITED STATES MILITARY GOVERNOR FOR GERMANY, AND
THEREAFTER CONTINUED IN OFFICE OR APPOINTED BY THE UNITED STATES HIGH
COMMISSIONER FOR GERMANY.  THEIR CONSTITUTIONAL AUTHORITY CONTINUED TO
STEM FROM THE PRESIDENT.  THE MEMBERS OF THE TRIAL COURT WERE
DESIGNATED BY THE CHIEF PRESIDING DISTRICT JUDGE AS A PANEL TO TRY THE
CASE.  THE VOLUME OF BUSINESS, THE SIZE OF THE AREA, THE NUMBER OF
CIVILIANS AFFECTED, THE DURATION OF THE OCCUPATION AND THE NEED FOR
ESTABLISHING CONFIDENCE IN CIVILIAN PROCEDURE EMPHASIZED THE PROPRIETY
OF TRIBUNALS OF A NONMILITARY CHARACTER.  (FN23)  WITH THIS PURPOSE,
THE MILITARY GOVERNMENT COURTS FOR GERMANY, SUBSTANTIALLY FROM THEIR
ESTABLISHMENT, HAVE HAD A LESS MILITARY CHARACTER THAN THAT OF COURTS
MARTIAL.  (FN24)  IN 1948, PROVISION WAS MADE FOR THE APPOINTMENT OF
CIVILIAN JUDGES WITH SUBSTANTIAL LEGAL EXPERIENCE.  THE RIGHTS OF
INDIVIDUALS WERE SAFEGUARDED BY A CODE OF CRIMINAL PROCEDURE DEALING
WITH WARRANTS, SUMMONS, PRELIMINARY HEARINGS, TRIALS, EVIDENCE,
WITNESSES, FINDINGS, SENTENCES, CONTEMPT, REVIEW OF CASES AND APPEALS. 
(FN25)  THIS SUBJECTED GERMAN AND UNITED STATES CIVILIANS TO THE SAME
PROCEDURES AND EXHIBITED CONFIDENCE IN THE FAIRNESS OF THOSE
PROCEDURES.  (FN26) 

IT IS SUGGESTED THAT, BECAUSE THE OCCUPATION STATUTE TOOK EFFECT
SEPTEMBER 21, 1949, WHEREAS THE CRIME CHARGED OCCURRED OCTOBER 20,
1949, THE CONSTITUTIONAL AUTHORITY FOR PETITIONER'S TRIAL BY MILITARY
COMMISSION EXPIRED BEFORE THE CRIME TOOK PLACE.  SUCH IS NOT THE CASE. 
THE AUTHORITY FOR SUCH COMMISSIONS DOES NOT NECESSARILY EXPIRE UPON
CESSATION OF HOSTILITIES OR EVEN, FOR ALL PURPOSES, WITH A TREATY OF
PEACE.  IT MAY CONTINUE LONG ENOUGH TO PERMIT THE OCCUPYING POWER TO
DISCHARGE ITS RESPONSIBILITES FULLY.  SANTIAGO V. NOGUERAS, 214 U.S.
260; NEELY V. HENKEL, 180 U.S. 109, 124, BURKE V. MILTENBERGER, 19
WALL.  519; LEITENSDORFER V. WEBB, 20 HOW.  176; CROSS V. HARRISON, 16
HOW.  164.  (FN27) 

IV.  PETITIONER AND THE OFFENSE CHARGED AGAINST HER CAME WITHIN THE
JURISDICTION ASSIGNED TO THE COURT WHICH TRIED HER.  - UNDER UNITED
STATES MILITARY GOVERNMENT ORDINANCE NO. 31, AUGUST 18, 1948, ARTICLE
7, 14 FED. REG. 126, APPENDIX, INFRA, P. 365, THE UNITED STATES GAVE
ITS MILITARY GOVERNMENT DISTRICT COURTS "CRIMINAL JURISDICTION OVER ALL
PERSONS IN THE UNITED STATES AREA OF CONTROL EXCEPT PERSONS, OTHER THAN
CIVILIANS, WHO ARE SUBJECT TO MILITARY, NAVAL OR AIR FORCE LAW AND ARE
SERVING WITH ANY FORCES OF THE UNITED NATIONS."  IT THUS EXCEPTED FROM
THE JURISDICTION OF THOSE OCCUPATION COURTS MILITARY MEN AND WOMEN WHO
WERE SUBJECT TO MILITARY LAW BUT EXPRESSLY GAVE THOSE COURTS
JURISDICTION OVER CIVILIAN MEN AND WOMEN WHO WERE SUBJECT TO MILITARY
LAW.  ARTICLE OF WAR 2(D) FURTHER DEFINED "ANY PERSON SUBJECT TO
MILITARY LAW" AS INCLUDING "ALL PERSONS ACCOMPANYING OR SERVING WITH
THE ARMIES OF THE UNITED STATES WITHOUT THE TERRITORIAL JURISDICTION OF
THE UNITED STATES  ...  ."  (FN28)  THIS INCLUDED PETITIONER. 

ARTICLE 7 OF UNITED STATES MILITARY GOVERNMENT ORDINANCE NO. 31
FURTHER PROVIDED, HOWEVER, THAT "NO PERSON SUBJECT TO MILITARY LAW OF
THE UNITED STATES SHALL BE BROUGHT TO TRIAL FOR ANY OFFENSE EXCEPT UPON
AUTHORIZATION OF THE COMMANDER-IN-CHIEF, EUROPEAN COMMAND."  14 FED.
REG. 126, APPENDIX, INFRA, P. 365.  THAT AUTHORIZATION APPEARS IN THE
OFFICIAL CORRESPONDENCE RELATING TO THE CASE OF WILMA B. YBARBO.  THE
CORRESPONDENCE INCLUDES A WRITTEN ENDORSEMENT FROM THE PROPER
AUTHORITY, DATED DECEMBER 11, 1948, COVERING NOT ONLY THE YBARBO CASE
BUT ALSO THE CASE "OF ANY DEPENDENT OF A MEMBER OF THE UNITED STATES
ARMED FORCES  ...  ."  SEE APPENDIX, INFRA.  P. 367. 

THE APPLICABILITY OF THE GERMAN CRIMINAL CODE TO PETITIONER'S OFFENSE
SPRINGS FROM ITS EXPRESS ADOPTION BY THE UNITED STATES MILITARY
GOVERNMENT.  THE UNITED STATES COMMANDING GENERAL, IN HIS PROCLAMATION
NO. 2, SEPTEMBER 19, 1945, STATED THAT, EXCEPT AS ABROGATED, SUSPENDED
OR MODIFIED BY THE MILITARY GOVERNMENT OR BY THE CONTROL COUNCIL FOR
GERMANY, "THE GERMAN LAW IN FORCE AT THE TIME OF THE OCCUPATION SHALL
BE APPLICABLE IN EACH AREA OF THE UNITED STATES ZONE OF OCCUPATION  ...
."  12 FED. REG. 6997, APPENDIX, INFRA, P. 363.  (FN29)  SECTION 211
OF THE GERMAN CRIMINAL CODE ACCORDINGLY WAS APPLICABLE TO PETITIONER ON
OCTOBER 20, 1949.  THE UNITED STATES ALSO EXPRESSLY REQUIRED THAT ITS
CIVILIANS BE TRIED BY ITS OCCUPATION COURTS RATHER THAN BY THE GERMAN
COURTS.  UNITED STATES MILITARY GOVERNMENT LAW NO. 2, GERMAN COURTS,
ART. VII)(C) AND (D), 12 FED. REG. 2191, 2192, APPENDIX, INFRA, P.
364.  UNITED STATES MILITARY GOVERNMENT ORDINANCE NO. 2, ART.
II(2)(III), 12 FED. REG. 2190-2191, APPENDIX, INFRA, P. 363. 

THE JURISDICTION OF THE UNITED STATES COURTS OF THE ALLIED HIGH
COMMISSION FOR GERMANY TO TRY PETITIONER BEING ESTABLISHED, THE
JUDGMENT OF THE COURT OF APPEALS AFFIRMING THE DISCHARGE OF THE WRIT OF
HABEAS CORPUS FOR PETITIONER'S RELEASE FROM CUSTODY IS AFFIRMED. 

FN1  SEE UNITED STATES MILITARY GOVERNMENT ORDINANCE NO. 31, AUGUST
18, 1948, 14 FED. REG. 124-128.  SEE APPENDIX, INFRA, P. 365. 

FN2  THE AGREED STATEMENT OF FACTS STATES: 

"4.  SECTION 211 OF THE GERMAN CRIMINAL CODE READS AS FOLLOWS IN
ENGLISH TRANSLATION: 

"'MURDER - MORD: 

"'211.  (AS IN FORCE PRIOR TO 4 SEPTEMBER 1941).  WHOEVER
INTENTIONALLY KILLS A HUMAN BEING IS GUILTY OF MURDER IF THE KILLING
WAS ACCOMPLISHED WITH PREMEDITATION, AND SHALL BE PUNISHED BY DEATH. 

"'211.  (AS AMENDED 4 SEPTEMBER 1941, RGBI I, 549).  THE MURDERER
SHALL BE PUNISHED BY DEATH. 

"'A MURDERER IS HEREBY DEFINED AS ONE WHO KILLS A HUMAN BEING OUT OF
THE MORBID DESIRE TO KILL (MORDLUST): 

"'FOR THE SATISFACTION OF SEXUAL DESIRE: 

"'FOR CUPIDITY (HABGIER) OR ANY OTHER BASE MOTIVES: 

"'IN A TREACHEROUS OR CRUEL MANNER OR BY MEANS CAUSING COMMON DANGER,
OR: 

"'IN ORDER TO MAKE POSSIBLE OR TO CONCEAL ANOTHER OFFENSE. 

"'IF, IN ESPECIALLY EXCEPTIONAL CASES, THE DEATH PENALTY IS NOT
SUITABLE (ANGEMESSEN), PUNISHMENT OF CONFINEMENT FOR LIFE IN A
PENITENTIARY SHALL BE IMPOSED.'" 

THE AGREED STATEMENT ALSO CONTAINS A TRANSLATION OF SECS. 44 AND 51
OF THE GERMAN CRIMINAL CODE PROVIDING FOR REDUCTION OF SENTENCE UNDER
CIRCUMSTANCES WHICH WERE DEEMED APPLICABLE TO PETITIONER BY THE TRIAL
COURT. 

FN3  SEE ALLIED HIGH COMMISSION, LAW NO. 1, ART. 1, DECEMBER 28,
1949, 15 FED. REG. 2086, APPENDIX, INFRA, PP. 370-371. 

FN4  SEE UNITED STATES MILITARY GOVERNMENT ORDINANCE NO. 31, ART. 13,
AUGUST 18, 1948, 14 FED. REG. 127. 

FN5  SEE NOTES 1, 3 AND 4, SUPRA. 

FN6  SEE 38 STAT. 1084-1085, 10 U.S.C. SEC. 1452, AND, SINCE MAY 31,
1951, SEE ART. 58 OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT.
126, 50 U.S.C. (SUPP. IV) SEC. 639. 

FN7  THERE WAS NO NONMILITARY COURT OF THE UNITED STATES IN GERMANY. 
SHE ENJOYED THE IMMUNITY FROM THE JURISDICTION OF ALL GERMAN COURTS
WHICH HAD BEEN GRANTED TO NATIONALS OF THE UNITED NATIONS AND TO
FAMILIES OF MEMBERS OF THE OCCUPATION FORCES.  UNITED STATES MILITARY
GOVERNMENT LAW NO. 2, ART. VI(1), 12 FED. REG. 219L, 2192, APPENDIX,
INFRA, P. 364; ALLIED HIGH COMMISSION, LAW NO. 2, ART. 1, 14 FED. REG.
7457, APPENDIX, INFRA, P. 369; ALLIED HIGH COMMISSION, LAW NO. 13, ART.
1, 15 FED. REG. 1056-1057, SEE APPENDIX, INFRA, P. 370. 

FN8  "BY A PRACTICE DATING FROM 1847 AND RENEWED AND FIRMLY
ESTABLISHED DURING THE CIVIL WAR, MILITARY COMMISSIONS HAVE BECOME
ADOPTED AS AUTHORIZED TRIBUNALS IN THIS COUNTRY IN TIME OF WAR.  THEY
ARE SIMPLY CRIMINAL WAR COURTS, RESORTED TO FOR THE REASON THAT THE
JURISDICTION OF COURTS-MARTIAL, CREATURES AS THEY ARE OF STATUTE, IS
RESTRICTED BY LAW, AND CAN NOT BE EXTENDED TO INCLUDE CERTAIN CLASSES
OF OFFENSES WHICH IN WAR WOULD GO UNPUNISHED IN THE ABSENCE OF A
PROVISIONAL FORUM FOR THE TRIAL OF THE OFFENDERS  ...  .  THEIR
COMPETENCY HAS BEEN RECOGNIZED NOT ONLY IN ACTS OF CONGRESS, BUT IN
EXECUTIVE PROCLAMATIONS, IN RULINGS OF THE COURTS, AND IN THE OPINIONS
OF THE ATTORNEYS GENERAL.  DURING THE CIVIL WAR THEY WERE EMPLOYED IN
SEVERAL THOUSAND CASES; ...  ."  HOWLAND, DIGEST OF OPINIONS OF THE
JUDGE-ADVOCATES GENERAL OF THE ARMY (1912), 1066-1067. 

FN9  IN SPEAKING OF THE AUTHORITY AND OCCASION FOR THE USE OF A
MILITARY COMMISSION, COLONEL WILLIAM WINTHROP, IN HIS AUTHORITATIVE
WORK ON MILITARY LAW AND PRECEDENTS (2D ED. 1920 REPRINT,) SAYS AT 831:
"  ...  IT IS THOSE PROVISIONS OF THE CONSTITUTION WHICH EMPOWER
CONGRESS TO 'DECLARE WAR' AND 'RAISE ARMIES,' AND WHICH, IN AUTHORIZING
THE INITIATION OF WAR, AUTHORIZE THE EMPLOYMENT OF ALL NECESSARY AND
PROPER AGENCIES FOR ITS DUE PROSECUTION, FROM WHICH THIS TRIBUNAL
DERIVES ITS ORIGINAL SANCTION.  ITS AUTHORITY IS THUS THE SAME AS THE
AUTHORITY FOR THE MAKING AND WAGING OF WAR AND FOR THE EXERCISE OF
MILITARY GOVERNMENT AND MARTIAL LAW.  THE COMMISSION IS SIMPLY AN
INSTRUMENTALITY FOR THE MORE EFFICIENT EXECUTION OF THE WAR POWERS
VESTED IN CONGRESS AND THE POWER VESTED IN THE PRESIDENT AS COMMANDER
IN-CHIEF IN WAR.  IN SOME INSTANCES ...  CONGRESS HAS SPECIFICALLY
RECOGNIZED THE MILITARY COMMISSION AS THE PROPER WAR-COURT, AND IN
TERMS PROVIDED FOR THE TRIAL THEREBY OF CERTAIN OFFENSES.  IN GENERAL,
HOWEVER, IT HAS LEFT IT TO THE PRESIDENT, AND THE MILITARY COMMANDERS
REPRESENTING HIM, TO EMPLOY THE COMMISSION, AS OCCASION MAY REQUIRE,
FOR THE INVESTIGATION AND PUNISHMENT OF VIOLATIONS OF THE LAWS OF WAR
AND OTHER OFFENCES NOT COGNIZABLE BY COURT-MARTIAL. 

"THE OCCASION FOR THE MILITARY COMMISSION ARISES PRINCIPALLY FROM THE
FACT THAT THE JURISDICTION OF THE COURT-MARTIAL PROPER, IN OUR LAW, IS
RESTRICTED BY STATUTE ALMOST EXCLUSIVELY TO MEMBERS OF THE MILITARY
FORCE AND TO CERTAIN SPECIFIC OFFENCES DEFINED IN A WRITTEN CODE.  IT
DOES NOT EXTEND TO MANY CRIMINAL ACTS, ESPECIALLY OF CIVILIANS,
PECULIAR TO TIME OF WAR; AND FOR THE TRIAL OF THESE A DIFFERENT
TRIBUNAL IS REQUIRED  ...  .  HENCE, IN OUR MILITARY LAW, THE
DISTINCTIVE NAME OF MILITARY COMMISSION HAS BEEN ADOPTED FOR THE
EXCLUSIVELY WAR-COURT, WHICH  ...  IS ESSENTIALLY A DISTINCT TRIBUNAL
FROM THE COURT-MARTIAL OF THE ARTICLES OF WAR." 

FOR TEXT OF GENERAL SCOTT'S GENERAL ORDER NO. 20, AS AMENDED BY
GENERAL ORDER NO. 287, SEPTEMBER 17, 1847, AUTHORIZING THE APPOINTMENT
OF MILITARY COMMISSIONS IN MEXICO, SEE BIRKHIMER, MILITARY GOVERNMENT
AND MARTIAL LAW (2D ED. REV. 1904), APP. I, 581-582.  SEE ALSO, DUNCAN
V. KAHANOMOKU, 327 U.S. 304; IN RE YAMASHITA, 327 U.S. 1; SANTIAGO V.
NOGUERAS, 214 U.S. 260; NEELY V. HENKEL, 180 U.S. 109; MECHANICS' &
TRADERS' BANK V. UNION BANK, 22 WALL.  276, 279 NOTE; THE GRAPESHOT, 9
WALL.  129, 132; CROSS V. HARRISON, 16 HOW.  164, 190; II HALLECK,
INTERNATIONAL LAW (3D ED. 1893), 444-445.  FOR AN EXAMPLE OF THE
EXERCISE OF JURISDICTION IN A MURDER CASE BY A PROVISIONAL COURT
ESTABLISHED IN LOUISIANA, IN 1862, BY EXECUTIVE ORDER OF THE PRESIDENT
OF THE UNITED STATES AND AN OPINION BY THE PROVISIONAL JUDGE, REVIEWING
THE CONSTITUTIONAL AUTHORITY FOR THE ESTABLISHMENT OF HIS COURT, SEE
UNITED STATES V. REITER, 27 FED. CAS. NO. 16, 146.    FN10  WHILE
EXPLAINING A PROPOSED REFERENCE TO MILITARY COMMISSIONS IN ARTICLE OF
WAR 15, JUDGE ADVOCATE GENERAL CROWDER, IN 1916, SAID, "A MILITARY
COMMISSION IS OUR COMMON-LAW WAR COURT.  IT HAS NO STATUTORY EXISTENCE,
THOUGH IT IS RECOGNIZED BY STATUTE LAW."  S. REP. NO. 130, 64TH CONG.,
1ST SESS. 40. 

FN11  SUCH AS MILITARY COMMISSION, COUNCIL OF WAR, MILITARY TRIBUNAL,
MILITARY GOVERNMENT COURT, PROVISIONAL COURT, PROVOST COURT, COURT OF
CONCILIATION, ARBITRATOR, SUPERIOR COURT, AND APPELLATE COURT.  AND SEE
WINTHROP, OP. CIT. 803-804. 

FN12  IT HAS BEEN RECOGNIZED, EVEN AFTER PEACE HAS BEEN DECLARED,
PENDING COMPLETE ESTABLISHMENT OF CIVIL GOVERNMENT.  SEE DUNCAN V.
KAHANAMOKU, 327 U.S. 304; IN RE YAMASHITA, 327 U.S. 1, 12-13; SANTIAGO
V. NOGUERAS, 214 U.S. 260; NEELY V. HENKEL 180 U.S. 109; BURKE V.
MILTENBERGER, 19 WALL.  519; LEITENSDORFER V. WEBB, 20 HOW.  176; CROSS
V. HARRISON, 16 HOW.  164. 

FN13  SEE ARTICLE 43 OF THE HAGUE REGULATIONS RESPECTING THE LAWS AND
CUSTOMS OF WAR ON LAND WITH SPECIAL RELATION TO MILITARY AUTHORITY OVER
THE TERRITORY OF A HOSTILE STATE (1907): 

"THE AUTHORITY OF THE LEGITIMATE POWER HAVING IN FACT PASSED INTO THE
HANDS OF THE OCCUPANT, THE LATTER SHALL TAKE ALL THE MEASURES IN HIS
POWER TO RESTORE, AND ENSURE, AS FAR AS POSSIBLE, PUBLIC ORDER AND
SAFETY, WHILE RESPECTING, UNLESS ABSOLUTELY PREVENTED, THE LAWS IN
FORCE IN THE COUNTRY."  36 STAT. 2306. 

"MILITARY GOVERNMENT  ...  IS AN EXERCISE OF SOVEREIGNTY, AND AS SUCH
DOMINATES THE COUNTRY WHICH IS ITS THEATRE IN ALL THE BRANCHES OF
ADMINISTRATION.  WHETHER ADMINISTERED BY OFFICERS OF THE ARMY OF THE
BELLIGERENT, OR BY CIVILIANS LEFT IN OFFICE OR APPOINTED BY HIM FOR THE
PURPOSE, IT IS THE GOVERNMENT OF AND FOR ALL THE INHABITANTS, NATIVE OR
FOREIGN, WHOLLY SUPERSEDING THE LOCAL LAW AND CIVIL AUTHORITY EXCEPT IN
SO FAR AS THE SAME MAY BE PERMITTED BY HIM TO SUBSIST  ...  .  THE
LOCAL LAWS AND ORDINANCES MAY BE LEFT IN FORCE, AND IN GENERAL SHOULD
BE, SUBJECT HOWEVER, TO THEIR BEING IN WHOLE OR IN PART SUSPENDED AND
OTHERS SUBSTITUTED IN THEIR STEAD - IN THE DISCRETION OF THE GOVERNING
AUTHORITY."  WINTHROP, OP. CIT. 800. 

FN14  U.S. CONST., ART. I, SEC. 8, CL. 14. 

FN15  ARTICLE XXXII OF THE AMERICAN ARTICLES OF WAR OF 1775 WAS TAKEN
FROM ARTICLE XXIII OF SECTION XIV OF THE BRITISH ARTICLES OF WAR OF
1765.  IT PROVIDED ONLY THAT "ALL SUTTLERS AND RETAILERS TO A CAMP, AND
ALL PERSONS WHATSOEVER, SERVING WITH THE CONTINENTAL ARMY IN THE FIELD,
THOUGH NOT INLISTED SOLDIERS, ARE TO BE SUBJECT TO THE ARTICLES, RULES,
AND REGULATIONS OF THE CONTINENTAL ARMY."  WINTHROP'S MILITARY LAW AND
PRECEDENTS (2D ED. 1920 REPRINT) 956, AND SEE 941 AND 950.  ARTICLE 60
OF THE ARTICLES OF WAR OF 1806 WAS SIMILAR.  IT SUBSTITUTED "RETAINERS"
FOR "RETAILERS."  ID., AT 981.  ARTICLE 60 WAS SLIGHTLY AMENDED IN
1874.  BY 1916, AS ARTICLE 63, CONGRESS STILL PROVIDED, AS TO
CIVILIANS, MERELY THAT "ALL RETAINERS TO THE CAMP, AND ALL PERSONS
SERVING WITH THE ARMIES OF THE UNITED STATES IN THE FIELD, THOUGH NOT
ENLISTED SOLDIERS, ARE TO BE SUBJECT TO ORDERS, ACCORDING TO THE RULES
AND DISCIPLINE OF WAR."  ID., AT 991, AND SEE 98-99. 

FN16  THE ENROLLMENT ACT OF 1863 CONFERRED UPON COURTS-MARTIAL
JURISDICTION OVER MANY NONMILITARY CRIMES IF COMMITTED BY SOLDIERS IN
TIME OF WAR.  THAT ACT INCIDENTALLY RECOGNIZED A CONCURRENT
JURISDICTION OVER SUCH CRIMES IN MILITARY COMMISSIONS: 

"SEC. 30.  ...  IN TIME OF WAR, INSURRECTION, OR REBELLION, MURDER,
ASSAULT AND BATTERY WITH AN INTENT TO KILL, MANSLAUGHTER  ...  SHALL BE
PUNISHABLE BY THE SENTENCE OF A GENERAL COURT-MARTIAL OR MILITARY
COMMISSION, WHEN COMMITTED BY PERSONS WHO ARE IN THE MILITARY SERVICE
OF THE UNITED STATES, AND SUBJECT TO THE ARTICLES OF WAR; AND THE
PUNISHMENTS FOR SUCH OFFENCES SHALL NEVER BE LESS THAN THOSE INFLICTED
BY THE LAWS OF THE STATE, TERRITORY, OR DISTRICT IN WHICH THEY MAY HAVE
BEEN COMMITTED."  12 STAT. 736. 

IN THE CODIFICATION PUBLISHED AS THE REVISED STATUTES OF 1874, THE
INCIDENTAL REFERENCE TO MILITARY COMMISSIONS WAS OMITTED.  ARTICLE OF
WAR 58 AT 234.  PETITIONER ATTACHES SUBSTANTIAL SIGNIFICANCE TO THE
OMISSION.  IT SEEMS CLEAR, HOWEVER, THAT REGARDLESS OF WHAT EFFECT, IF
ANY, MAY ATTACH TO THAT OMISSION IN ITS RELATION TO THE JURISDICTION OF
MILITARY COMMISSIONS OVER PERSONS IN THE MILITARY SERVICE, IT HAS NO
EFFECT ON THE JURISDICTION OF MILITARY COMMISSIONS OVER CIVILIANS NOT
"IN THE MILITARY SERVICE."  THIS SECTION OF THE ACT OF 1863 WAS ENACTED
SO AS TO PLACE SOLDIERS WHO COMMITTED CERTAIN NONMILITARY CRIMES UNDER
THE JURISDICTION OF MILITARY COURTS.  SEE CALDWELL V. PARKER, 252 U.S.
376.  THE SECTION DID NOT RELATE TO THE JURISDICTION OF COURTS OR
COMMISSIONS OVER CIVILIANS NOT IN THE MILITARY SERVICE.  CONG. GLOBE,
37TH CONG., 3D SESS. 988, 1256, 1377, 1384 (1863).  FOR DISCUSSION OF
THE PHRASE "IN THE MILITARY SERVICE" AS USED IN ARTICLES 58 AND 60, SEE
GEN. CROWDER'S TESTIMONY.  S. REP. NO. 229, 63D CONG., 2D SESS. 104. 

FN17  IN 1920, ARTICLE OF WAR 15 WAS REENACTED WITH THE ADDITION OF
"BY STATUTE OR" BEFORE THE WORDS "BY THE LAW OF WAR."  41 STAT. 790, 10
U.S.C. SEC. 1486.  IT WAS IN THAT FORM IN 1949 AND 1950.  IT WAS AGAIN
REENACTED MAY 5, 1950, AS THE PRESENT ARTICLE 21 OF THE UNIFORM CODE OF
MILITARY JUSTICE, EFFECTIVE MAY 31, 1951.  64 STAT. 115, 145, 50 U.S.C.
(SUPP. IV) SEC. 581.  THE HEARINGS, IN 1949, ON THE LATTER LEGISLATION
ARE OF SOME SIGNIFICANCE HERE.  THEY DISCLOSED THAT THE UNITED STATES
MILITARY GOVERNMENT COURTS IN GERMANY WERE THEN EXERCISING, IN THE
OCCUPIED TERRITORY, CRIMINAL JURISDICTION OVER UNITED STATES CIVILIANS
ACCOMPANYING THE ARMED FORCES.  ATTENTION EVEN WAS CALLED TO THE RECENT
CASE OF WILMA B. YBARBO.  LIKE PETITIONER IN THE INSTANT CASE, SHE WAS
A CIVILIAN DEPENDENT WIFE OF A MEMBER OF THE UNITED STATES ARMED FORCES
IN GERMANY, CHARGED WITH THE MURDER OF HER HUSBAND IN VIOLATION OF THE
GERMAN CRIMINAL CODE.  SHE WAS CONVICTED BY THE UNITED STATES MILITARY
GOVERNMENT COURT FOR THE THIRD JUDICIAL DISTRICT.  THE COURT OF APPEALS
OF THE UNITED STATES MILITARY GOVERNMENT COURTS, MARCH 14, 1949, UPHELD
HER CONVICTION, ON A LESSER CHARGE, AND SENTENCED HER TO FIVE YEARS'
IMPRISONMENT.  IN ITS OPINION, THE LATTER COURT REVIEWED THE BASIS FOR
ITS JURISDICTION.  UNITED STATES MILITARY GOVERNMENT V. YBARBO, 1
U.S.M.G. COURT OF APPEALS 207.  SEE ALSO, HEARINGS BEFORE A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON ARMED SERVICES ON H.R. 2498,
UNIFORM CODE OF MILITARY JUSTICE, 81ST CONG., 1ST SESS. 876, 975,
1061.  WITH THIS PRACTICE BEFORE THEM, THE COMMITTEES OF BOTH HOUSES OF
CONGRESS RECOMMENDED THE REENACTMENT OF ARTICLE OF WAR 15 AS ARTICLE 21
OF THE NEW CODE.  THEY SAID, "THIS ARTICLE PRESERVES EXISTING ARMY AND
AIR FORCE LAW WHICH GIVES CONCURRENT JURISDICTION TO MILITARY TRIBUNALS
OTHER THAN COURTS MARTIAL."  S. REP. NO. 486, 81ST CONG., 1ST SESS. 13;
H.R. REP. NO. 491, 81ST CONG., 1ST SESS. 17. 

FN18  THE 1916 ACT SUBSTITUTED, FOR ARTICLE 63 (SEE NOTE 15, SUPRA),
A NEW ARTICLE 12 WHICH PROVIDED THAT "GENERAL COURTS-MARTIAL SHALL HAVE
POWER TO TRY ANY PERSON SUBJECT TO MILITARY LAW FOR ANY CRIME OR
OFFENSE MADE PUNISHABLE BY THESE ARTICLES, AND ANY OTHER PERSON WHO BY
THE LAW OF WAR IS SUBJECT TO TRIAL BY MILITARY TRIBUNALS:  ...  ."  39
STAT. 652, 41 STAT. 789, 62 STAT. 629, 10 U.S.C. (SUPP. IV) SEC. 1483. 
A NEW ARTICLE 2 THEN DEFINED "ANY PERSON SUBJECT TO MILITARY LAW" SO AS
TO INCLUDE: 

"(D)  ALL RETAINERS TO THE CAMP AND ALL PERSONS ACCOMPANYING OR
SERVING WITH THE ARMIES OF THE UNITED STATES WITHOUT THE TERRITORIAL
JURISDICTION OF THE UNITED STATES, AND IN TIME OF WAR ALL SUCH
RETAINERS AND PERSONS ACCOMPANYING OR SERVING WITH THE ARMIES OF THE
UNITED STATES IN THE FIELD, BOTH WITHIN AND WITHOUT THE TERRITORIAL
JURISDICTION OF THE UNITED STATES, THOUGH NOT OTHERWISE SUBJECT TO
THESE ARTICLES; ...  ."  39 STAT. 651, 41 STAT. 787, 10 U.S.C. SEC.
1473(D). 

FN19  IN 1916, NEW ARTICLES 92 AND 93 EXPANDED THE JURISDICTION OF
COURTS-MARTIAL OVER MURDER AND CERTAIN OTHER NONMILITARY CRIMES SO AS
TO COVER THEIR COMMISSION BY ANY "PERSON SUBJECT TO MILITARY LAW." 
THAT PHRASE, THROUGH ARTICLE 2, INCLUDED CIVILIANS IN THE STATUS OF
PETITIONER.  SEE NOTE 18, SUPRA.  FOR ARTICLES 92 AND 93, SEE 39 STAT.
664, 41 STAT. 805, 62 STAT. 640, 10 U.S.C. (SUPP. IV) SECS. 1564,
1565.  SEE NOTE 16, SUPRA, FOR THE SUBSTANCE OF ARTICLE 30 OF THE
ARTICLES OF WAR OF 1863 AND OF ARTICLE 58 OF THE ARTICLES OF WAR OF
1874. 

FN20  IN EXPLAINING LIKE PROVISIONS TO THE HOUSE COMMITTEE ON
MILITARY AFFAIRS IN 1912, GENERAL CROWDER PREVIOUSLY HAD SAID: 

"THE NEXT ARTICLE, NO. 15, IS ENTIRELY NEW, AND THE REASONS FOR ITS
INSERTION IN THE CODE ARE THESE:  IN OUR WAR WITH MEXICO TWO WAR COURTS
WERE BROUGHT INTO EXISTENCE BY ORDERS OF GEN. SCOTT, VIZ, THE MILITARY
COMMISSION AND THE COUNCIL OF WAR.  BY THE MILITARY COMMISSION GEN.
SCOTT TRIED CASES COGNIZABLE IN TIME OF PEACE BY CIVIL COURTS, AND BY
THE COUNCIL OF WAR HE TRIED OFFENSES AGAINST THE LAWS OF WAR.  THE
COUNCIL OF WAR DID NOT SURVIVE THE MEXICAN WAR PERIOD, AND IN OUR
SUBSEQUENT WARS ITS JURISDICTION HAS BEEN TAKEN OVER BY THE MILITARY
COMMISSION, WHICH DURING THE CIVIL WAR PERIOD TRIED MORE THAN 2,000
CASES.  WHILE THE MILITARY COMMISSION HAS NOT BEEN FORMALLY AUTHORIZED
BY STATUTE, ITS JURISDICTION AS A WAR COURT HAS BEEN UPHELD BY THE
SUPREME COURT OF THE UNITED STATES.  IT IS AN INSTITUTION OF THE
GREATEST IMPORTANCE IN A PERIOD OF WAR AND SHOULD BE PRESERVED.  IN THE
NEW CODE THE JURISDICTION OF COURTS-MARTIAL HAS BEEN SOMEWHAT AMPLIFIED
BY THE INTRODUCTION OF THE PHRASE 'PERSONS SUBJECT TO MILITARY LAW.' 
THERE WILL BE MORE INSTANCES IN THE FUTURE THAN IN THE PAST WHEN THE
JURISDICTION OF COURTS-MARTIAL WILL OVERLAP THAT OF THE WAR COURTS, AND
THE QUESTION WOULD ARISE WHETHER CONGRESS HAVING VESTED JURISDICTION BY
STATUTE THE COMMON LAW OF WAR JURISDICTION WAS NOT OUSTED.  I WISH TO
MAKE IT PERFECTLY PLAIN BY THE NEW ARTICLE THAT IN SUCH CASES THE
JURISDICTION OF THE WAR COURT IS CONCURRENT. 

     *         *   *         *         * 

"  ...  I WAS INFLUENCED TO PROPOSE THE ARTICLE (15) LARGELY,
PERHAPS, BY EXPERIENCE DURING OUR SECOND INTERVENTION IN CUBA.  IT WAS
NOT VERY LONG AFTER THAT INTERVENTION HAD BEEN INAUGURATED UNTIL TWO
SOLDIERS WERE CHARGED WITH HOMICIDE OF SOME NATIVES.  THERE WAS NO
CIVIL COURT OF THE UNITED STATES HAVING JURISDICTION.  PLAINLY THE
COURT-MARTIAL COULD NOT TRY THEM, AS THE CONDITION WAS NOT WAR.  THERE
WERE TWO COURSES OPEN:  FIRST, TO SURRENDER THEM FOR TRIAL BEFORE A
CUBAN COURT ...  THE SECOND COURSE WAS TO UTILIZE THE EXTRAORDINARY
AUTHORITY WHICH INHERED IN THE OFFICE OF THE PROVISIONAL GOVERNOR AND
WHICH EXTENDED TO THE MAKING OF LAWS, TO PROMULGATE A SPECIAL DECREE
CREATING A PROVISIONAL COURT FOR THE TRIAL OF THESE MEN.  THIS SECOND
COURSE WAS FOLLOWED, AND THE ACCUSED SOLDIERS WERE TRIED BY A COURT
COMPOSED OF OFFICERS OF THE ARMY, WHICH ADMINISTERED THE PROVISIONS OF
THE SPANISH CRIMINAL CODE.  SHOULD WE BE CONFRONTED AGAIN WITH THE
NECESSITY OF INTERVENTION, THAT SITUATION IS LIKELY TO REPEAT ITSELF." 
S. REP. NO. 229, 63D CONG., 2D SESS. 53, 98-99. 

FN21  SEE NOTE 9, SUPRA. 

FN22  IN EX PARTE QUIRIN, 317 U.S. 1, 28, THIS COURT SAID: 

BY THE ARTICLES OF WAR, AND ESPECIALLY ARTICLE 15, CONGRESS HAS
EXPLICITLY PROVIDED, SO FAR AS IT MAY CONSTITUTIONALLY DO SO, THAT
MILITARY TRIBUNALS SHALL HAVE JURISDICTION TO TRY OFFENDERS OR OFFENSES
AGAINST THE LAW OF WAR IN APPROPRIATE CASES.  CONGRESS, IN ADDITION TO
MAKING RULES FOR THE GOVERNMENT OF OUR ARMED FORCES, HAS THUS EXERCISED
ITS AUTHORITY TO DEFINE AND PUNISH OFFENSES AGAINST THE LAW OF NATIONS
BY SANCTIONING, WITHIN CONSTITUTIONAL LIMITATIONS, THE JURISDICTION OF
MILITARY COMMISSIONS TO TRY PERSONS FOR OFFENSES WHICH, ACCORDING TO
THE RULES AND PRECEPTS OF THE LAW OF NATIONS, AND MORE PARTICULARLY THE
LAW OF WAR, ARE COGNIZABLE BY SUCH TRIBUNALS.  AND THE PRESIDENT, AS
COMMANDER IN CHIEF, BY HIS PROCLAMATION IN TIME OF WAR HAS INVOKED THAT
LAW.  BY HIS ORDER CREATING THE PRESENT COMMISSION HE HAS UNDERTAKEN TO
EXERCISE THE AUTHORITY CONFERRED UPON HIM BY CONGRESS, AND ALSO SUCH
AUTHORITY AS THE CONSTITUTION ITSELF GIVES THE COMMANDER IN CHIEF, TO
DIRECT THE PERFORMANCE OF THOSE FUNCTIONS WHICH MAY CONSTITUTIONALLY BE
PERFORMED BY THE MILITARY ARM OF THE NATION IN TIME OF WAR." 

IN THAT CASE THE MILITARY COMMISSION'S CONVICTION OF SABOTEURS,
INCLUDING ONE CITIZEN OF THE UNITED STATES, WAS UPHELD ON CHARGES OF
VIOLATING THE LAW OF WAR AS DEFINED BY STATUTE.  ID., AT 35-38. 

FN23  THE GOVERNMENT ESTIMATES THAT THE UNITED STATES AREA OF CONTROL
HAS A GERMAN POPULATION OF ABOUT 17,000,000, PLUS UNITED NATIONS
NATIONALS, INCLUDING REFUGEES.  AS OF NOVEMBER 30, 1949, IT ESTIMATES
THAT THERE WERE IN GERMANY ABOUT 34,000 DEPENDENTS OF MEMBERS OF UNITED
STATES ARMED FORCES, PLUS 4,700 CIVILIAN EMPLOYEES WITH 5,000
DEPENDENTS.  OTHER UNITED STATES AGENCIES HAD 4,100 EMPLOYEES IN
GERMANY.  THE OCCUPATION COURTS HAVE BEEN HANDLING AT LEAST 1,000
CRIMINAL CASES A MONTH, INCLUDING FROM 25 TO 30 CASES INVOLVING
AMERICAN CIVILIANS.  SEE ALSO, GENERAL ACCOUNT OF THE DEVELOPMENT OF
THE MILITARY GOVERNMENT COURTS IN CLAY, DECISION IN GERMANY (1950), 246
248. 

FN24  UNITED STATES MILITARY GOVERNMENT ORDINANCE NO. 2, IN 1946,
PROVIDED: 

"(E)  ARTICLE V; RIGHTS OF ACCUSED.  (1)  EVERY PERSON ACCUSED BEFORE
A MILITARY GOVERNMENT COURT SHALL BE ENTITLED: 

"(I)  TO HAVE IN ADVANCE OF TRIAL A COPY OF THE CHARGES UPON WHICH HE
IS TO BE TRIED: 

"(II)  TO BE PRESENT AT HIS TRIAL, TO GIVE EVIDENCE AND TO EXAMINE OR
CROSS-EXAMINE ANY WITNESS; BUT THE COURT MAY PROCEED IN THE ABSENCE OF
THE ACCUSED IF THE ACCUSED HAS APPLIED FOR AND BEEN GRANTED PERMISSION
TO BE ABSENT, OR IF THE ACCUSED IS BELIEVED TO BE A FUGITIVE FROM
JUSTICE:    "(III)  TO CONSULT A LAWYER BEFORE TRIAL AND TO CONDUCT HIS
OWN DEFENSE OR TO BE REPRESENTED AT THE TRIAL BY A LAWYER OF HIS OWN
CHOICE, SUBJECT TO THE RIGHT OF THE COURT TO DEBAR ANY PERSON FROM
APPEARING BEFORE THE COURT: 

"(IV)  IN ANY CASE IN WHICH A SENTENCE OF DEATH MAY BE IMPOSED, TO BE
REPRESENTED BY AN OFFICER OF THE ALLIED FORCES, IF HE IS NOT OTHERWISE
REPRESENTED: 

"(V)  TO BRING WITH HIM TO HIS TRIAL SUCH MATERIAL WITNESSES IN HIS
DEFENSE AS HE MAY WISH, OR TO HAVE THEM SUMMONED BY THE COURT AT HIS
REQUEST, IF PRACTICABLE: 

"(VI)  TO APPLY TO THE COURT FOR AN ADJOURNMENT WHERE NECESSARY TO
ENABLE HIM TO PREPARE HIS DEFENSE: 

"(VII)  TO HAVE THE PROCEEDINGS TRANSLATED, WHEN HE IS OTHERWISE
UNABLE TO UNDERSTAND THE LANGUAGE IN WHICH THEY ARE CONDUCTED; ...  ." 
12 FED. REG. 2191. 

FN25  UNITED STATES MILITARY GOVERNMENT ORDINANCES 32 AND 33, CODE OF
CRIMINAL PROCEDURE FOR UNITED STATES MILITARY GOVERNMENT COURTS FOR
GERMANY, 14 FED. REG. 128-133. 

FIELD MANUAL 27-5 (1947), AT PAGE 66, PROVIDES: 

"MILITARY GOVERNMENT TRIBUNALS ARE NOT GOVERNED BY THE PROVISIONS OF
THE MANUAL FOR COURTS-MARTIAL NOR BY THE LIMITATIONS IMPOSED ON COURTS
MARTIAL BY ARTICLES OF WAR.  EXPERIENCE HAS DEMONSTRATED THAT IN
ADMINISTERING JUSTICE IN AN OCCUPIED AREA, IT IS DESIRABLE TO FOLLOW
FORMS OF JUDICIAL PROCEDURE WHICH ARE GENERALLY SIMILAR TO THE FORMS OF
PROCEDURE TO WHICH THE PEOPLE ARE ACCUSTOMED." 

CF. THE ORDER OF PRESIDENT LINCOLN OF OCTOBER 20, 1862, ESTABLISHING
A PROVISIONAL COURT IN NEW ORLEANS, LOUISIANA, AS A "COURT OF RECORD
FOR THE STATE OF LOUISIANA" WITH A CIVILIAN AS: 

"A PROVISIONAL JUDGE, TO HOLD SAID COURT, WITH AUTHORITY TO HEAR,
TRY, AND DETERMINE ALL CAUSES, CIVIL AND CRIMINAL, INCLUDING CAUSES IN
LAW, EQUITY, REVENUE, AND ADMIRALTY, AND PARTICULARLY ALL SUCH POWERS
AND JURISDICTION AS BELONG TO THE DISTRICT AND CIRCUIT COURTS OF THE
UNITED STATES, CONFORMING HIS PROCEEDINGS, SO FAR AS POSSIBLE, TO THE
COURSE OF PROCEEDINGS AND PRACTICE WHICH HAS BEEN CUSTOMARY IN THE
COURTS OF THE UNITED STATES IN LOUISIANA; HIS JUDGMENTS TO BE FINAL AND
CONCLUSIVE  ...  .  THESE APPOINTMENTS (OF PROSECUTING ATTORNEY,
MARSHAL AND CLERK OF THE COURT) ARE TO CONTINUE DURING THE PLEASURE OF
THE PRESIDENT, NOT EXTENDING BEYOND THE MILITARY OCCUPATION OF THE CITY
OF NEW ORLEANS, OR THE RESTORATION OF THE CIVIL AUTHORITY IN THAT CITY
AND THE STATE OF LOUISIANA."  MECHANICS' AND TRADERS' BANK V. UNION
BANK, 22 WALL.  276, 279 NOTE; AND SEE UNITED STATES V. REITER, 27 FED.
CAS. NO. 16, 146. 

FN26  THEY DID NOT PROVIDE FOR JURIES.  THE PRESENTMENT OR INDICTMENT
OF A GRAND JURY REQUIRED IN A FEDERAL CAPITAL CASE BY THE FIFTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, UNDER THE TERMS OF
THAT AMENDMENT, HAS NO APPLICATION TO "CASES ARISING IN THE LAND OR
NAVAL FORCES  ...  ."  THE RIGHT OF TRIAL BY JURY REQUIRED IN FEDERAL
CRIMINAL PROSECUTIONS BY THE SIXTH AMENDMENT IS SIMILARLY LIMITED.  SEE
EX PARTE QUIRIN, 317 U.S. 1, 40, 43-45; EX PARTE MILLIGAN, 4 WALL.  2,
123, 138. 

FN27  "  ...  THE STATUS OF MILITARY GOVERNMENT CONTINUES FROM THE
INCEPTION OF THE ACTUAL OCCUPATION TILL THE INVADER IS EXPELLED BY
FORCE OF ARMS, OR HIMSELF ABANDONS HIS CONQUEST, OR TILL, UNDER A
TREATY OF PEACE, THE COUNTRY IS RESTORED TO ITS ORIGINAL ALLEGIANCE OR
BECOMES INCORPORATED WITH THE DOMAIN OF THE PREVAILING BELLIGERENT." 
WINTHROP, OP. CIT. 801. 

FN28  SEE NOTE 18, SUPRA. 

FN29  CF. DOW V. JOHNSON, 100 U.S. 158, 166; KETCHUM V. BUCKLEY, 99
U.S. 188, AS ILLUSTRATIONS OF THE PRACTICE OF RECOGNIZING THE EXISTING
LAW OF THE OCCUPIED AREA; AND WINTHROP, OP. CIT. 800. 

                      APPENDIX TO OPINION OF THE COURT. 

            CHRONOLOGY OF ESTABLISHMENT OF UNITED STATES MILITARY

                GOVERNMENT COURTS AND THEIR JURISDICTION OVER

                CIVILIANS IN THE UNITED STATES AREA OF CONTROL

                          IN GERMANY 1945-1950. 

1.  JUNE 5, 1945.  - ALLIED POWERS ASSUMED "SUPREME AUTHORITY WITH
RESPECT TO GERMANY, INCLUDING ALL THE POWERS POSSESSED BY THE GERMAN
GOVERNMENT, THE HIGH COMMAND AND ANY STATE, MUNICIPAL, OR LOCAL
GOVERNMENT OR AUTHORITY.  THE ASSUMPTION, FOR THE PURPOSES STATED
ABOVE, OF THE SAID AUTHORITY AND POWERS DOES NOT EFFECT THE ANNEXATION
OF GERMANY."  DECLARATION BY COMMANDING GENERALS REPRESENTING THE
UNITED STATES, THE SOVIET UNION, GREAT BRITAIN AND THE FRENCH
PROVISIONAL GOVERNMENT, THE AXIS IN DEFEAT - A COLLECTION OF DOCUMENTS
ON AMERICAN POLICY TOWARD GERMANY AND JAPAN, PUBLISHED BY THE UNITED
STATES DEPARTMENT OF STATE, P. 63. 

2.  JULY 14, 1945.  - COMMANDING GENERAL, UNITED STATES ARMED FORCES
IN EUROPE, ESTABLISHED A MILITARY GOVERNMENT UNDER HIS AUTHORITY IN THE
UNITED STATES ZONE OF OCCUPATION - MILITARY GOVERNMENT - UNITED STATES
AREA OF CONTROL, PROCLAMATION NO. 1, 12 FED. REG. 6997. 

3.  SEPTEMBER 19, 1945.  - COMMANDING GENERAL, UNITED STATES FORCES,
EUROPEAN THEATER, PROCLAIMED: 

"ARTICLE II.  EXCEPT AS HERETOFORE ABROGATED, SUSPENDED OR MODIFIED
BY MILITARY GOVERNMENT OR BY THE CONTROL COUNCIL FOR GERMANY, THE
GERMAN LAW IN FORCE AT THE TIME OF THE OCCUPATION SHALL BE APPLICABLE
IN EACH AREA OF THE UNITED STATES ZONE OF OCCUPATION, UNTIL REPEALED
BY, OR SUPERSEDED BY A NEW LAW ENACTED BY THE CONTROL COUNCIL FOR
GERMANY, OR BY MILITARY GOVERNMENT OR THE STATES HEREBY CONSTITUTED OR
BY OTHER COMPETENT AUTHORITY."  MILITARY GOVERNMENT - UNITED STATES
AREA OF CONTROL, PROCLAMATION NO. 2, 12 FED. REG. 6997. 

4.  1946.  - MILITARY GOVERNMENT COURTS, AS DISTINGUISHED FROM COURTS
MARTIAL, WERE GIVEN JURISDICTION OVER ALL PERSONS IN THE OCCUPIED
TERRITORY, INCLUDING CIVILIANS SUBJECT TO MILITARY LAW AND OVER
OFFENSES UNDER THE LAWS OF THE OCCUPIED TERRITORY. 

"  ...  ARTICLE II; JURISDICTION.  (1) MILITARY GOVERNMENT COURTS
SHALL HAVE JURISDICTION OVER ALL PERSONS IN THE OCCUPIED TERRITORY
EXCEPT PERSONS OTHER THAN CIVILIANS WHO ARE SUBJECT TO MILITARY, NAVAL
OR AIR FORCE LAW AND ARE SERVING UNDER THE COMMAND OF THE SUPREME
COMMANDER, ALLIED EXPEDITIONARY FORCE, OR ANY OTHER COMMANDER OF ANY
FORCES OF THE UNITED NATIONS. 

"(2)  MILITARY GOVERNMENT COURTS SHALL HAVE JURISDICTION OVER: 

"(I)  ALL OFFENCES AGAINST THE LAWS AND USAGES OF WAR. 

"(II)  ALL OFFENCES UNDER ANY PROCLAMATION, LAW, ORDINANCE, NOTICE OR
ORDER ISSUED BY OR UNDER THE AUTHORITY OF THE MILITARY GOVERNMENT OR OF
THE ALLIED FORCES. 

"(III)  ALL OFFENCES UNDER THE LAWS OF THE OCCUPIED TERRITORY OR OF
ANY PART THEREOF."  UNITED STATES MILITARY GOVERNMENT ORDINANCE NO. 2,
MILITARY GOVERNMENT COURTS, 12 FED. REG. 2190-2191. 

5.  1946.  - GERMAN COURTS WERE DENIED JURISDICTION IN CERTAIN
CRIMINAL CASES, INCLUDING THOSE INVOLVING ANY NATIONAL OF THE UNITED
NATIONS OR ANY DEPENDENT ACCOMPANYING ANY OF THE ARMED FORCES OF ANY OF
THE UNITED NATIONS. 

"  ...  ARTICLE VI; LIMITATIONS ON JURISDICTION.  (1) EXCEPT WHEN
EXPRESSLY AUTHORIZED BY CONTROL COUNCIL OR MILITARY GOVERNMENT LAW,
ORDINANCE OR REGULATION, OR BY ORDER OF THE DIRECTOR OF MILITARY
GOVERNMENT OF THE APPROPRIATE LAND, NO GERMAN COURT SHALL ASSERT OR
EXERCISE JURISDICTION IN THE FOLLOWING CASES OR CLASSES OF CASES: 

"(I)  CRIMINAL CASES INVOLVING: 

"(A)  ANY OF THE UNITED NATIONS, OR: 

"(B)  THE ARMED FORCES OF ANY OF THE UNITED NATIONS, OR: 

"(C)  ANY PERSON SERVING WITH ANY SUCH FORCES OR A DEPENDENT
ACCOMPANYING ANY OF THEM, OR: 

"(D)  ANY NATIONAL OF THE UNITED NATIONS, OR  ...  ."  UNITED STATES
MILITARY GOVERNMENT, LAW NO. 2, GERMAN COURTS, 12 FED. REG. 2191,
2192. 

6.  AUGUST 18, 1948.  - UNITED STATES MILITARY GOVERNMENT COURTS FOR
GERMANY ESTABLISHED. 

"  ...  ORDINANCE NO. 31; UNITED STATES MILITARY GOVERNMENT COURTS FOR
GERMANY; CREATION OF THE COURTS - (A) ARTICLE 1; JUDICIAL SYSTEM.  A
SYSTEM OF COURTS IS HEREBY ESTABLISHED FOR THE UNITED STATES AREA OF
CONTROL OF GERMANY  ...  . 

     *      *         *         *         * 

"(C)  ARTICLE 3; DISTRICT COURTS.  (1) A DISTRICT COURT IS HEREBY
ESTABLISHED FOR EACH JUDICIAL DISTRICT WITHIN THE UNITED STATES AREA OF
CONTROL. 

     *         *         *         *         * 

"(3)  EACH DISTRICT COURT SHALL CONSIST OF ONE OR MORE DISTRICT
JUDGES AND ONE OR MORE MAGISTRATES WHO SHALL SIT SINGLY EXCEPT AS
PROVIDED IN SUBPARAGRAPH (5) OF THIS PARAGRAPH. 

     *    *         *         *         * 

"(5)  A DISTRICT COURT COMPOSED OF THREE DISTRICT JUDGES OR TWO
DISTRICT JUDGES AND A MAGISTRATE MAY HEAR AND DECIDE ANY CIVIL OR
CRIMINAL CASE, AND, IN THE LATTER, MAY IMPOSE ANY LAWFUL SENTENCE
INCLUDING DEATH.  A MAJORITY OF SUCH COURT SHALL DECIDE ANY CASE BEFORE
IT, PROVIDED THAT NO SENTENCE OF DEATH SHALL BE IMPOSED EXCEPT BY THE
UNANIMOUS DECISION OF THE COURT. 

     *         * *         *         * 

"(8)  WHERE AN ACCUSED IS CHARGED WITH AN OFFENSE UNDER GERMAN LAW,
THE COURT SHALL BE LIMITED TO THE SENTENCE OR OTHER PENAL PROVISION OF
SUCH LAW. 

     *        *         *         *         *

    "JURISDICTION OF THE COURTS 

"(G)  ARTICLE 7, JURISDICTION OF DISTRICT COURTS IN CRIMINAL CASES. 
(1) DISTRICT COURTS SHALL HAVE CRIMINAL JURISDICTION OVER ALL PERSONS
IN THE UNITED STATES AREA OF CONTROL EXCEPT PERSONS, OTHER THAN
CIVILIANS, WHO ARE SUBJECT TO MILITARY, NAVAL OR AIR FORCE LAW AND ARE
SERVING WITH ANY FORCES OF THE UNITED NATIONS.  NO PERSON SUBJECT TO
MILITARY LAW OF THE UNITED STATES SHALL BE BROUGHT TO TRIAL FOR ANY
OFFENSE EXCEPT UPON AUTHORIZATION OF THE COMMANDER-IN-CHIEF, EUROPEAN
COMMAND.  NO MEMBER OF AN ALLIED MISSION, VISITING GOVERNMENTAL
OFFICIAL, OR PERSON SUBJECT TO THE MILITARY LAW OF ANY COUNTRY OTHER
THAN THE UNITED STATES, SHALL BE BROUGHT TO TRIAL FOR ANY OFFENSE
EXCEPT UPON AUTHORIZATION OF THE MILITARY GOVERNOR. 

"(2)  DISTRICT COURTS SHALL HAVE JURISDICTION TO HEAR AND DECIDE
CASES INVOLVING: 

"(I)  OFFENSES UNDER LEGISLATION ISSUED BY OR UNDER THE AUTHORITY OF
THE ALLIED CONTROL COUNCIL: 

"(II)  OFFENSES UNDER UNITED STATES MILITARY GOVERNMENT LEGISLATION: 

"(III)  OFFENSES UNDER GERMAN LAW IN FORCE IN THE JUDICIAL DISTRICT
OF THE COURT."  14 FED. REG. 124, 125, 126. 

7.  DECEMBER 11, 1948.  - THE COMMANDER-IN-CHIEF OF THE UNITED STATES
EUROPEAN COMMAND ENDORSEMENT ADDRESSED TO THE CHIEF ATTORNEY, UNITED
STATES MILITARY GOVERNMENT COURTS FOR GERMANY: 

"AUTHORIZATION IS HEREBY GIVEN FOR TRIAL OF ANY DEPENDENT OF A MEMBER
OF THE UNITED STATES ARMED FORCES OR OF ANY DEPENDENT OF A CIVILIAN
EMPLOYEE OF THE DEPARTMENT OF THE ARMY FOR ANY NON-MILITARY OFFENSES
BEFORE THE APPROPRIATE MILITARY GOVERNMENT COURT ESTABLISHED BY
MILITARY GOVERNMENT ORDINANCE NO. 31 UNLESS, IN A PARTICULAR CASE, THIS
HEADQUARTERS HAS DIRECTED TRIAL BY COURT MARTIAL."  RESP.  EX. 4,
R.71. 

8. MAY 12, 1949.  - OCCUPATION STATUTE PROMULGATED BY MILITARY
GOVERNORS AND COMMANDERS-IN-CHIEF OF THE WESTERN ZONES OF GERMANY - TO
BECOME EFFECTIVE AT A LATER DATE.  IT DECLARED THAT: 

"1.  DURING THE PERIOD IN WHICH IT IS NECESSARY THAT THE OCCUPATION
CONTINUE  ...  THE OCCUPYING POWERS DESIRE AND INTEND THAT THE GERMAN
PEOPLE SHALL ENJOY SELF-GOVERNMENT TO THE MAXIMUM POSSIBLE DEGREE
CONSISTENT WITH SUCH OCCUPATION.  THE FEDERAL STATE AND THE
PARTICIPATING LAENDER (STATES) SHALL HAVE, SUBJECT ONLY TO THE
LIMITATIONS IN THIS INSTRUMENT, FULL LEGISLATIVE, EXECUTIVE AND
JUDICIAL POWERS IN ACCORDANCE WITH THE BASIC LAW AND WITH THEIR
RESPECTIVE CONSTITUTIONS. 

"2.  IN ORDER TO ENSURE THE ACCOMPLISHMENT OF THE BASIC PURPOSES OF
THE OCCUPATION, POWERS IN THE FOLLOWING FIELDS ARE SPECIFICALLY
RESERVED  ...  . 

     *         *         *         *         * 

"(E)  PROTECTION, PRESTIGE, AND SECURITY OF ALLIED FORCES,
DEPENDENTS, EMPLOYEES AND REPRESENTATIVES, THEIR IMMUNITIES AND
SATISFACTION OF OCCUPATION COSTS AND THEIR OTHER REQUIREMENTS;  ... ." 
14 FED. REG. 7457. 

9.  JUNE 6, 1949.  - EXECUTIVE ORDER 10062 OF THE PRESIDENT
ESTABLISHING THE POSITION OF UNITED STATES HIGH COMMISSIONER FOR
GERMANY: 

"2.  THE UNITED STATES HIGH COMMISSIONER FOR GERMANY, HEREINAFTER
REFERRED TO AS THE HIGH COMMISSIONER, SHALL BE THE SUPREME UNITED
STATES AUTHORITY IN GERMANY.  THE HIGH COMMISSIONER SHALL HAVE THE
AUTHORITY, UNDER THE IMMEDIATE SUPERVISION OF THE SECRETARY OF STATE
(SUBJECT, HOWEVER, TO CONSULTATION WITH AND ULTIMATE DIRECTION BY THE
PRESIDENT), TO EXERCISE ALL OF THE GOVERNMENTAL FUNCTIONS OF THE UNITED
STATES IN GERMANY (OTHER THAN THE COMMAND OF TROOPS), INCLUDING
REPRESENTATION OF THE UNITED STATES ON THE ALLIED HIGH COMMISSION FOR
GERMANY WHEN ESTABLISHED, AND THE EXERCISE OF APPROPRIATE FUNCTIONS OF
A CHIEF OF MISSION WITHIN THE MEANING OF THE FOREIGN SERVICE ACT OF
1946. 

     *         *    *         *         * 

"4.  IN THE EVENT THAT THE HIGH COMMISSIONER SHALL ASSUME HIS DUTIES
IN ACCORDANCE WITH THIS EXECUTIVE ORDER PRIOR TO THE DATE THAT THE
MILITARY GOVERNMENT OF THE UNITED STATES ZONE OF GERMANY IS TERMINATED,
HE SHALL DURING SUCH INTERVAL REPORT TO THE SECRETARY OF DEFENSE,
THROUGH THE SECRETARY OF THE ARMY, AND SHALL BE THE UNITED STATES
MILITARY GOVERNOR WITH ALL THE POWERS THEREOF INCLUDING THOSE VESTED IN
THE UNITED STATES MILITARY GOVERNOR UNDER ALL INTERNATIONAL
AGREEMENTS."  14 FED. REG. 2965. 

10.  SEPTEMBER 21, 1949.  - COUNCIL OF ALLIED HIGH COMMISSION
DECLARED OCCUPATION STATUTE TO BE IN FORCE AS PROMULGATED MAY 12,
1949.  14 FED. REG. 7456. 

11.  SEPTEMBER 21, 1949.  - UNITED STATES HIGH COMMISSIONER FOR
GERMANY, IN ACCORDANCE WITH EXECUTIVE ORDER 10062, ASSUMED THE
AUTHORITY RESIDING IN THE UNITED STATES MILITARY GOVERNOR AND THE
OFFICE OF MILITARY GOVERNMENT FOR GERMANY FOR THE GOVERNMENTAL
FUNCTIONS OF THE UNITED STATES IN GERMANY:    "2.  THE OFFICE OF THE
U.S. HIGH COMMISSIONER FOR GERMANY IS HEREBY ESTABLISHED AS THE AGENCY
THROUGH WHICH THE AUTHORITY VESTED IN THE U.S. HIGH COMMISSIONER SHALL
BE EXERCISED.  ITS ORGANIZATION SHALL BE AS SHOWN IN THE ATTACHED
CHARTS (INCLUDING U.S. HIGH COMMISSION COURTS, COURT OF APPEALS,
DISTRICT COURTS), AND ITS FUNCTIONS SHALL BE ASSIGNED AMONG ITS
CONSTITUENT ELEMENTS AS SET FORTH IN SEPARATE ISSUANCES, EFFECTIVE THIS
DATE."  OFFICE OF THE UNITED STATES HIGH COMMISSIONER FOR GERMANY,
STAFF ANNOUNCEMENT NO. 1, RESP.  EX. 1, R. 67, 68.    12.  SEPTEMBER
21, 1949.  - THE UNITED STATES HIGH COMMISSIONER FOR GERMANY ANNOUNCED
THAT THE UNITED STATES COURTS FOR GERMANY, AS ESTABLISHED BY STAFF
ANNOUNCEMENT NO. 1 (AND PREVIOUSLY ESTABLISHED AS THE "UNITED STATES
MILITARY GOVERNMENT COURTS FOR GERMANY," PURSUANT TO UNITED STATES
MILITARY GOVERNMENT ORDINANCE NO. 31) "FORM AN INDEPENDENT JUDICIAL
UNIT RESPONSIBLE DIRECTLY TO THE UNITED STATES HIGH COMMISSIONER.  THE
INTEGRATED SYSTEM PROVIDES FOR DISTRICT JUDGES AND MAGISTRATES AT THE
DISTRICT COURT LEVEL AND FOR A CHIEF JUDGE AND ASSOCIATE JUDGES OF THE
COURT OF APPEALS."  OFFICE OF THE UNITED STATES HIGH COMMISSIONER FOR
GERMANY, STAFF ANNOUNCEMENT NO. 5, RESP.  EX. 2, R. 69.  SIMILAR
ANNOUNCEMENT WAS MADE AS TO THE OFFICE OF GENERAL COUNSEL AND OF THE
CHIEF ATTORNEY.  STAFF ANNOUNCEMENT NO. 6, RESP.  EX. 3, R. 70. 

13.  SEPTEMBER 21, 1949.  - "ALLIED FORCES" DEFINED BY ALLIED HIGH
COMMISSION: 

"IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY, IN LEGISLATION OF
THE ALLIED HIGH COMMISSION: 

     *         *         *         *         * 

"3. THE EXPRESSION 'ALLIED FORCES' SHALL INCLUDE: 

"(A)  THE OCCUPATION AUTHORITIES. 

"(B)  THE OCCUPATION FORCES AND THEIR MEMBERS. 

"(C)  NON-GERMAN NATIONALS, CIVILIAN OR MILITARY, WHO ARE SERVING
WITH THE OCCUPATION AUTHORITIES. 

"(D)  MEMBERS OF THE FAMILIES AND NON-GERMAN PERSONS IN THE SERVICE
OF THE PERSONS REFERRED TO IN SUBPARAGRAPHS (A)(B) AND (C) OF THIS
PARAGRAPH."  ALLIED HIGH COMMISSION, LAW NO. 2, ART. 1, 14 FED. REG.
7457. 

14.  SEPTEMBER 21, 1949.  - TRANSITIONAL PROVISIONS PROCLAIMED BY
ALLIED HIGH COMMISSION FOR GERMANY ADAPTING EXISTING LEGISLATION TO THE
PROVISIONS OF THE OCCUPATION STATUTE EFFECTIVE SEPTEMBER 21, 1949. 

      "ARTICLE 5 

"REFERENCES IN ANY LEGISLATION ENACTED BEFORE THE ENTRY INTO FORCE OF
THE OCCUPATION STATUTE TO THE CONTROL COUNCIL, THE SUPREME COMMANDER
ALLIED EXPEDITIONARY FORCE, THE COMMANDING GENERAL, THE ARMED FORCES,
MILITARY GOVERNMENT, THE MILITARY GOVERNOR AND TO OTHER AUTHORITIES
SHALL, WHERE THE CONTEXT SO REQUIRES OR ADMITS, BE DEEMED TO REFER TO
THE APPROPRIATE AUTHORITIES EXERCISING THE PARTICULAR FUNCTIONS
MENTIONED IN SUCH LEGISLATION."  ALLIED HIGH COMMISSION, LAW NO. 3, 14
FED. REG. 7458. 

15.  NOVEMBER 25, 1949.  - JUDICIAL POWERS WERE RESERVED, FROM THE
GERMAN COURTS, AS TO MEMBERS OF FAMILIES OF MEMBERS OF THE OCCUPATION
FORCES, THUS BRINGING THEM UNDER THE JURISDICTION OF THE OCCUPATION
COURTS. 

"THE COUNCIL OF THE ALLIED HIGH COMMISSION ENACTS AS FOLLOWS:

                       "ARTICLE 1 

"EXCEPT WHEN EXPRESSLY AUTHORIZED, EITHER GENERALLY OR IN SPECIFIC
CASES, BY THE HIGH COMMISSIONER OF THE ZONE IN WHICH THE COURT IS
LOCATED, GERMAN COURTS SHALL NOT EXERCISE CRIMINAL JURISDICTION: 

"(A)(I) OVER THE ALLIED FORCES; ...  ."  ALLIED HIGH COMMISSION, LAW
NO. 13, 15 FED. REG. 1056. 

16.  DECEMBER 28, 1949 (EFFECTIVE JANUARY 1, 1950).  - OCCUPATION
COURTS WERE CHANGED. 

"THE UNITED STATES HIGH COMMISSIONER FOR GERMANY ENACTS AS FOLLOWS:

                                   "ARTICLE 1 

"ARTICLE 1 OF UNITED STATES MILITARY GOVERNMENT ORDINANCE NO. 31,
'UNITED STATES MILITARY GOVERNMENT COURTS FOR GERMANY', IS HEREBY
AMENDED BY CHANGING THE LAST SENTENCE OF SAID ARTICLE TO READ AS
FOLLOWS: 

"'THE COURTS SO CREATED SHALL BE KNOWN AS THE UNITED STATES COURTS OF
THE ALLIED HIGH COMMISSION FOR GERMANY.'" 

                                   "ARTICLE 2 

"ARTICLE 4 OF UNITED STATES MILITARY GOVERNMENT ORDINANCE NO. 31,
'UNITED STATES MILITARY GOVERNMENT COURTS FOR GERMANY', IS HEREBY
AMENDED BY CHANGING THE FIRST SENTENCE OF SECTION 2 OF SAID ARTICLE TO
READ AS FOLLOWS: 

"'THE COURT OF APPEALS SHALL CONSIST OF A CHIEF JUSTICE AND EIGHT
ASSOCIATE JUSTICES.'" 

                          "ARTICLE 3 

"WHEREVER THE TERM 'UNITED STATES MILITARY GOVERNMENT COURTS FOR
GERMANY' OR THE TERMS 'CHIEF JUDGE' OR 'ASSOCIATE JUDGE' OR 'ASSOCIATE
JUDGES' OF THE COURT OF APPEALS ARE USED IN ANY LEGISLATION AND
REGULATIONS NOW IN FORCE, SUCH TERMS SHALL BE DEEMED TO REFER TO THE
UNITED STATES COURTS OF THE ALLIED HIGH COMMISSION FOR GERMANY AND THE
CHIEF JUSTICE AND AN ASSOCIATE JUSTICE OR ASSOCIATE JUSTICES OF THE
COURT OF APPEALS OF SUCH COURTS, RESPECTIVELY."  ALLIED HIGH
COMMISSION, LAW NO. 1, 15 FED. REG. 2086. 

MR. JUSTICE BLACK, DISSENTING. 

PETITIONER, A UNITED STATES CITIZEN, IS NOW SERVING A FIFTEEN-YEAR
SENTENCE FOR MURDERING HER HUSBAND.  AT THE TIME OF THE ALLEGED CRIME,
SHE WAS LIVING IN THE UNITED STATES AREA OF CONTROL IN GERMANY WITH HER
HUSBAND WHO WAS AN AIR FORCE LIEUTENANT ON ACTIVE DUTY IN GERMANY.  IT
APPEARS THAT THE COURT THAT TRIED HER AND THE LAW SHE WAS JUDGED BY
WERE NOT ESTABLISHED OR AUTHORIZED BY THE CONGRESS.  EXECUTIVE OFFICERS
ACTING UNDER PRESIDENTIAL AUTHORITY CREATED THE SYSTEM OF COURTS THAT
TRIED HER, PROMULGATED THE EDICTS SHE WAS CONVICTED OF VIOLATING, AND
APPOINTED THE JUDGES WHO TOOK AWAY HER LIBERTY. 

THE VERY FIRST ARTICLE OF THE CONSTITUTION BEGINS BY SAYING THAT "ALL
LEGISLATIVE POWERS HEREIN GRANTED SHALL BE VESTED IN A CONGRESS" AND NO
PART OF THE CONSTITUTION CONTAINS A PROVISION SPECIFICALLY AUTHORIZING
THE PRESIDENT TO CREATE COURTS TO TRY AMERICAN CITIZENS.  WHATEVER MAY
BE THE SCOPE OF THE PRESIDENT'S POWER AS COMMANDER IN CHIEF OF THE
FIGHTING ARMED FORCES, I THINK THAT IF AMERICAN CITIZENS IN PRESENT-DAY
GERMANY ARE TO BE TRIED BY THE AMERICAN GOVERNMENT, THEY SHOULD BE
TRIED UNDER LAWS PASSED BY CONGRESS AND IN COURTS CREATED BY CONGRESS
UNDER ITS CONSTITUTIONAL AUTHORITY. 
..END :


















UNITED STATES V. ATLANTIC MUTUAL INSURANCE CO. 343 U.S. 236 


NO. 450.  ARGUED MARCH 7, 1952 - DECIDED APRIL 21, 1952 - 191 F.2D 370,
AFFIRMED. 


1.  A "BOTH-TO-BLAME" CLAUSE OF AN OCEAN BILL OF LADING, WHICH, IN THE
CASE OF A COLLISION DUE TO THE NEGLIGENT NAVIGATION OF BOTH SHIPS,
REQUIRES THE CARGO OWNER TO INDEMNIFY THE CARRIER FOR SUCH AMOUNT AS
THE CARRIER MAY LOSE BY REASON OF A RECOVERY BY THE CARGO OWNER FROM
THE NONCARRIER FOR CARGO DAMAGES WHICH ARE INCLUDED IN THE AGGREGATE
DAMAGES TO BE DIVIDED BETWEEN THE TWO SHIPS, HELD INVALID.  PP. 237
242. 

(A)  IT IS A GENERAL RULE OF LAW THAT COMMON CARRIERS CANNOT
STIPULATE FOR IMMUNITY FROM THEIR OWN OR THEIR AGENTS' NEGLIGENCE.  P.
239. 

(B)  THE LANGUAGE OF THE HARTER ACT, 46 U.S.C. SEC. 192,
SUBSTANTIALLY REENACTED BY THE CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C.
SEC. 1304(2), DID NOT CARVE OUT A SPECIAL STATUTORY EXCEPTION TO THE
GENERAL RULE SO AS TO PERMIT A CARRIER TO DEPRIVE ITS CARGO OWNERS OF A
PART OF THE FRUITS OF ANY JUDGMENT THEY OBTAIN IN A DIRECT ACTION
AGAINST A NONCARRYING VESSEL THAT CONTRIBUTES TO A COLLISION..  PP. 239
241. 

2.  NEITHER THE HARTER ACT NOR THE CARRIAGE OF GOODS BY SEA ACT
ALTERED THE LONG-ESTABLISHED RULE THAT THE FULL BURDEN OF THE LOSSES
SUSTAINED BY BOTH SHIPS IN A BOTH-TO-BLAME COLLISION IS TO BE SHARED
EQUALLY.  PP. 241-242. 

3.  IF THE RULE THAT, WITHOUT CONGRESSIONAL AUTHORITY, OCEAN COMMON
CARRIERS CANNOT STIPULATE AGAINST THEIR OWN NEGLIGENCE (OR THAT OF
THEIR AGENTS OR SERVANTS) IS TO BE CHANGED, THE CHANGE SHOULD BE MADE
BY CONGRESS, NOT BY THE SHIPOWNERS.  P. 242. 

4.  THE JASON, 225 U.S. 32, DISTINGUISHED.  P. 242, N. 10. 

UNITED STATES V. ATLANTIC MUTUAL INSURANCE CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUIT BROUGHT IN THE DISTRICT COURT TO DETERMINE LIABILITY
ARISING OUT OF A COLLISION IN WHICH BOTH VESSELS WERE AT FAULT, THE
DISTRICT COURT HELD VALID A "BOTH-TO-BLAME" CLAUSE OF AN OCEAN BILL OF
LADING.  90 F. SUPP. 836.  THE COURT OF APPEALS REVERSED.  191 F.2D
370.  THIS COURT GRANTED CERTIORARI.  342 U.S. 913.  AFFIRMED, P. 242. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS ARE CARGO OWNERS (FN1) WHO SHIPPED GOODS ON THE STEAMSHIP
NATHANIEL BACON OWNED BY PETITIONER, THE UNITED STATES, AND OPERATED AS
A COMMON CARRIER OF GOODS FOR HIRE.  IT COLLIDED WITH THE ESSO BELGIUM
AND RESPONDENTS' CARGO WAS DAMAGED.  THE SHIPS WERE ALSO DAMAGED.  THIS
LITIGATION WAS BROUGHT IN THE DISTRICT COURT TO DETERMINE LIABILITY FOR
THE DAMAGES SUFFERED BY THE CARGO OWNERS AND FOR THE PHYSICAL DAMAGE
CAUSED THE SHIPS.  IT WAS AGREED IN THE DISTRICT COURT THAT: 

(A)  THE COLLISION WAS DUE TO NEGLIGENT NAVIGATION BY EMPLOYEES OF
BOTH SHIPS.  THE CARGO OWNERS WERE IN NO WAY AT FAULT. 

(B)  THE BELGIUM, AS ONE OF TWO JOINT TORTFEASORS, MUST PAY "100%" OF
DAMAGES SUFFERED BY THE BACON'S CARGO OWNERS. 

(C)  BECAUSE OF SEC. 3 OF THE HARTER ACT (FN2) AND SEC. 4(2) OF THE
CARRIAGE OF GOODS BY SEA ACT, (FN3) THE CARGO OWNERS ARE BARRED FROM
DIRECTLY SUING THE BACON FOR CARGO DAMAGES. 

(D)  SINCE THE TWO SHIPS WERE MUTUALLY AT FAULT, THE AGGREGATE OF ALL
DAMAGES TO BOTH SHOULD BE SHARED BY BOTH.  (FN4) 

(E)  IN COMPUTING THE AGGREGATE DAMAGES CAUSED BOTH SHIPS, ACCOUNT
SHOULD BE TAKEN OF THE CARGO DAMAGES RECOVERED FROM THE BELGIUM BY THE
CARGO OWNERS. 

(F)  THE BILL OF LADING ISSUED BY THE BACON TO THE CARGO OWNERS
CONTAINED A "BOTH-TO-BLAME" CLAUSE.  (FN5)  THIS CLAUSE, IF VALID,
REQUIRES THE CARGO OWNERS TO INDEMNIFY THE CARRIER BACON FOR ANY
AMOUNTS THE BACON LOSES BECAUSE DAMAGES RECOVERED BY THE CARGO OWNERS
FROM THE BELGIUM ARE INCLUDED IN THE AGGREGATE DAMAGES DIVIDED BETWEEN
THE TWO SHIPS. 

THE ONLY QUESTION PRESENTED TO US IS WHETHER THE "BOTH-TO-BLAME"
CLAUSE IS VALID.  RESPONDENT CARGO OWNERS CONTEND THAT IT IS VOID AND
UNENFORCEABLE AS A VIOLATION OF THE LONG-STANDING RULE OF LAW WHICH
FORBIDS COMMON CARRIERS FROM STIPULATING AGAINST THE CONSEQUENCES OF
THEIR OWN OR THEIR EMPLOYEES' NEGLIGENCE.  PETITIONER, THE UNITED
STATES, CONTENDS THAT SEC. 3 OF THE HARTER ACT, AS SUBSTANTIALLY
REENACTED IN SEC. 4(2) OF THE CARRIAGE OF GOODS BY SEA ACT, PROVIDES
SPECIAL STATUTORY AUTHORIZATION PERMITTING OCEAN CARRIERS TO DEVIATE
FROM THE GENERAL RULE AND TO STIPULATE AGAINST THEIR NEGLIGENCE AS THEY
DID HERE.  THE DISTRICT COURT HELD THE CLAUSE VALID.  90 F. SUPP. 836. 
THE COURT OF APPEALS REVERSED.  191 F.2D 370.  DEEMING THE QUESTION
DECIDED OF SUFFICIENT IMPORTANCE TO JUSTIFY OUR REVIEW, THIS COURT
GRANTED CERTIORARI.  342 U.S. 913. 

THERE IS A GENERAL RULE OF LAW THAT COMMON CARRIERS CANNOT STIPULATE
FOR IMMUNITY FROM THEIR OWN OR THEIR AGENTS' NEGLIGENCE.  WHILE THIS
GENERAL RULE WAS FASHIONED BY THE COURTS, IT HAS BEEN CONTINUOUSLY
ACCEPTED AS A GUIDE TO COMMON-CARRIER RELATIONSHIPS FOR MORE THAN A
CENTURY (FN6) AND HAS ACQUIRED THE FORCE AND PRECISION OF A LEGISLATIVE
ENACTMENT.  CONSIDERING THE RELATIONSHIP OF THE RULE TO THE HARTER ACT,
THIS COURT SAID IN 1901 THAT "IN VIEW OF THE WELL-SETTLED NATURE OF THE
GENERAL RULE AT THE TIME THE STATUTE WAS ADOPTED, IT MUST RESULT THAT
LEGISLATIVE APPROVAL WAS BY CLEAR IMPLICATION GIVEN TO THE GENERAL RULE
AS THEN EXISTING IN ALL CASES WHERE IT WAS NOT CHANGED."   THE
KENSINGTON, 183 U.S. 263, 268-269.  OUR QUESTION THEREFORE IS WHETHER
THE LANGUAGE OF THE HARTER ACT, SUBSTANTIALLY REENACTED IN THE CARRIAGE
OF GOODS BY SEA ACT, HAS CARVED OUT A SPECIAL STATUTORY EXCEPTION TO
THE GENERAL RULE SO AS TO PERMIT A CARRIER TO DEPRIVE ITS CARGO OWNERS
OF A PART OF THE FRUITS OF ANY JUDGMENT THEY OBTAIN IN A DIRECT ACTION
AGAINST A NONCARRYING VESSEL THAT CONTRIBUTES TO A COLLISION. 

PRIOR TO THE PASSAGE OF THE HARTER ACT IN 1893, CARGO DAMAGES
INCURRED IN A BOTH-TO-BLAME COLLISION COULD BE RECOVERED IN FULL FROM
EITHER SHIP.  THE ATLAS, 93 U.S. 302.  THE HARTER ACT, UNDER SOME
CIRCUMSTANCES, TOOK AWAY THE RIGHT OF THE CARGO OWNER TO SUE HIS OWN
CARRIER FOR CARGO DAMAGES CAUSED BY THE NEGLIGENT NAVIGATION OF THE
CARRIER'S SERVANTS OR AGENTS.  IT DID NOT DEPRIVE THE CARGO OWNER OF
HIS TORT ACTION AGAINST THE NONCARRYING SHIP.  THE CHATTAHOOCHEE, 173
U.S. 540, 549-550.  NOR DID THE HARTER ACT GO SO FAR AS TO INSULATE THE
CARRIER FROM RESPONSIBILITY TO ANOTHER VESSEL FOR PHYSICAL DAMAGES
CAUSED TO THE SHIP BY NEGLIGENT NAVIGATION OF THE CARRIER'S SERVANTS OR
AGENTS.  IN THE DELAWARE, 161 U.S. 459, 471, 474, THIS COURT DECLINED
TO GIVE THE HARTER ACT SUCH A BROAD INTERPRETATION EVEN THOUGH THE
LANGUAGE ITSELF, IF "BROADLY CONSTRUED" AND CONSIDERED ALONE, WOULD
HAVE JUSTIFIED SUCH AN INTERPRETATION.  IN ADDITION, THE HARTER ACT
DOES NOT EXONERATE THE CARRIER FROM ITS OBLIGATION TO SHARE WITH THE
NONCARRIER ONE-HALF THE DAMAGES PAID BY THE NONCARRIER TO THE CARGO
OWNERS.  THE CHATTAHOOCHEE, SUPRA, AT PP. 551-552; SEE ALSO AKTSLSK. 
CUZCO V. THE SUCARSECO, 294 U.S. 394, 401-402. 

APPARENTLY IT WAS NOT UNTIL ABOUT FORTY YEARS AFTER THE PASSAGE OF
THE HARTER ACT THAT SHIPOWNERS FIRST ATTEMPTED BY STIPULATION TO
DEPRIVE CARGO OWNERS OF A PART OF THEIR RECOVERY AGAINST NONCARRYING
SHIPS.  SEE THE W.W. BRUCE, 14 F. SUPP. 894, REV'D ON OTHER GROUNDS, 94
F.2D 834.  THE PRESENT EFFORT OF SHIPOWNERS APPEARS TO DATE FROM 1937
WHEN THE NORTH ATLANTIC FREIGHT CONFERENCE ADOPTED THE "BOTH-TO-BLAME"
CLAUSE.  (FN7)  SO FAR AS APPEARS, THIS IS THE FIRST TEST OF THE
LEGALITY OF THE CLAUSE THAT HAS APPEARED IN THE COURTS.  WHEN CONGRESS
PASSED THE CARRIAGE OF GOODS BY SEA ACT IN 1936, IT INDICATED NO
PURPOSE TO BRING ABOUT A CHANGE IN THE LONG-EXISTING RELATIONSHIPS AND
OBLIGATIONS BETWEEN CARRIERS AND SHIPPERS WHICH WOULD BE RELEVANT TO
THE VALIDITY OF THE "BOTH-TO-BLAME" CLAUSE.  AT THAT TIME ALL
INTERESTED GROUPS SUCH AS CARGO OWNERS, SHIPOWNERS, AND THE
REPRESENTATIVES OF INTERESTED INSURANCE COMPANIES WERE BEFORE THE
CONGRESSIONAL COMMITTEES.  (FN8)  ALTHOUGH PETITIONER AND RESPONDENTS
BOTH APPEAR TO FIND COMFORT IN THE LANGUAGE AND THE HEARINGS OF THE
1936 ACT, NOTHING IN EITHER PERSUADES US THAT CONGRESS INTENDED TO
ALTER THE HARTER ACT IN ANY RESPECT MATERIAL TO THIS CONTROVERSY. 

PETITIONER ARGUES THAT THE CLAUSE DOES NOTHING MORE THAN REMOVE AN
"ANOMALY" WHICH ARISES FROM THIS COURT'S CONSTRUCTION OF THE HARTER
ACT.  IT IS SAID TO BE "ANOMALOUS" TO HOLD A CARRIER NOT LIABLE AT ALL
IF IT ALONE IS GUILTY OF NEGLIGENT NAVIGATION BUT AT THE SAME TIME TO
HOLD IT INDIRECTLY LIABLE FOR ONE-HALF THE CARGO DAMAGES IF ANOTHER
SHIP IS JOINTLY NEGLIGENT WITH IT. ASSUMING FOR THE MOMENT THAT ALL
RULES OF LAW MUST BY SYMMETRICAL, WE THINK IT WOULD BE "ANOMALOUS" TO
HOLD THAT A CARGO OWNER, WHO HAS AN UNQUESTIONED RIGHT UNDER THE LAW TO
RECOVER FULL DAMAGES FROM A NONCARRYING VESSEL, CAN BE COMPELLED TO
GIVE UP A PORTION OF THAT RECOVERY TO HIS CARRIER BECAUSE OF A
STIPULATION EXACTED IN A BILL OF LADING.  MOREOVER, THERE IS NO
INDICATION THAT EITHER THE HARTER ACT OR THE CARRIAGE OF GOODS BY SEA
ACT WAS DESIGNED TO ALTER THE LONG-ESTABLISHED RULE THAT THE FULL
BURDEN OF THE LOSSES SUSTAINED BY BOTH SHIPS IN A BOTH-TO-BLAME
COLLISION IS TO BE SHARED EQUALLY.  YET THE VERY PURPOSE OF EXACTING
THIS BILL OF LADING STIPULATION IS TO ENABLE ONE SHIP TO ESCAPE ITS
EQUAL SHARE OF SUCH LOSSES BY SHIFTING A PART OF ITS BURDEN TO ITS
CARGO OWNERS. 

HERE, ONCE MORE, "WE THINK THAT LEGISLATIVE CONSIDERATION AND ACTION
CAN BEST BRING ABOUT A FAIR ACCOMMODATION OF THE DIVERSE BUT RELATED
INTERESTS" (FN9) OF THE VARIED GROUPS WHO WOULD BE AFFECTED BY
PERMITTING CARRIERS TO DEVIATE FROM THE CONTROLLING RULE THAT WITHOUT
CONGRESSIONAL AUTHORITY THEY CANNOT STIPULATE AGAINST THEIR OWN
NEGLIGENCE OR THAT OF THEIR AGENTS OR SERVANTS.  IF THAT RULE IS TO BE
CHANGED, THE CONGRESS, NOT THE SHIPOWNERS, SHOULD CHANGE IT.  (FN10)
AFFIRMED. 

FN1  CERTAIN INSURANCE COMPANIES ARE PARTIES TO THIS SUIT AS
SUBROGEES OF THEIR INSURED CARGO OWNERS.  SOME CARGO OWNERS WERE NOT
INSURED. 

FN2  27 STAT. 445, 46 U.S.C. SEC. 192.  THIS SECTION PROVIDES THAT IF
DUE DILIGENCE IS EXERCISED BY THE SHIPOWNER IN MAKING THE SHIP
SEAWORTHY AND PROPERLY MANNED, EQUIPPED, AND SUPPLIED, THEN "NEITHER
THE VESSEL, HER OWNER OR OWNERS, AGENT, OR CHARTERERS, SHALL BECOME OR
BE HELD RESPONSIBLE FOR DAMAGES OR LOSS RESULTING FROM FAULTS OR ERRORS
IN NAVIGATION OR IN THE MANAGEMENT OF SAID VESSEL  ...  ." 

FN3  49 STAT. 1210, 46 U.S.C. SEC. 1304(2).  THIS SECTION PROVIDES
THAT "NEITHER THE CARRIER NOR THE SHIP SHALL BE RESPONSIBLE FOR LOSS OR
DAMAGE ARISING OR RESULTING FROM - (A) ACT, NEGLECT, OR DEFAULT OF THE
MASTER, MARINER, PILOT, OR THE SERVANTS OF THE CARRIER IN THE
NAVIGATION OR IN THE MANAGEMENT OF THE SHIP; ...  ." 

FN4  THE SHIPOWNERS HAVE STIPULATED THAT IN THIS CASE THE ESSO
BELGIUM IS TO BEAR TWO-THIRDS AND THE NATHANIEL BACON ONE-THIRD OF THE
TOTAL DAMAGES, ALTHOUGH THE NORMAL ADMIRALTY RULE REQUIRES AN EQUAL
DIVISION OF DAMAGES.  HALCYON LINES V. HAENN SHIP CORP., 342 U.S. 282,
284. 

FN5  THE CLAUSE READS AS FOLLOWS: 

"IF THE SHIP COMES INTO COLLISION WITH ANOTHER SHIP AS A RESULT OF
THE NEGLIGENCE OF THE OTHER SHIP AND ANY ACT, NEGLECT OR DEFAULT OF THE
MASTER, MARINER, PILOT OR THE SERVANTS OF THE CARRIER IN THE NAVIGATION
OR IN THE MANAGEMENT OF THE SHIP, THE OWNERS OF THE GOODS CARRIED
HEREUNDER WILL INDEMNIFY THE CARRIER AGAINST ALL LOSS OR LIABILITY TO
THE OTHER OR NON-CARRYING SHIP OR HER OWNERS IN SO FAR AS SUCH LOSS OR
LIABILITY REPRESENTS LOSS OF, OR DAMAGE TO, OR ANY CLAIM WHATSOEVER OF
THE OWNERS OF SAID GOODS, PAID OR PAYABLE BY THE OTHER OR NON-CARRYING
SHIP OR HER OWNERS TO THE OWNERS OF SAID GOODS AND SET-OFF, RECOUPED OR
RECOVERED BY THE OTHER OR NON-CARRYING SHIP OR HER OWNERS AS PART OF
THEIR CLAIM AGAINST THE CARRYING SHIP OR CARRIER." 

FN6  SEE.  E.G., LIVERPOOL STEAM CO. V. PHENIX INS. CO., 129 U.S.
397, 438-444 (1889); KNOTT V. BOTANY MILLS, 179 U.S. 69, 71 (1900);
RAILROAD CO. V. LOCKWOOD, 17 WALL.  357 (1873); BOSTON & MAINE R. CO.
V. PIPER, 246 U.S. 439, 445 (1918); SAN GIORGIO I V. RHEINSTROM CO.,
294 U.S. 494, 496 (1935).  AND SEE CASES COLLECTED IN 9 AM. JUR.  874
877. 

FN7  ROBINSON, ADMIRALTY, 872, 873; KNAUTH, OCEAN BILLS OF LADING (3D
ED. 1947), 95, 136, 175. 

FN8  HEARINGS BEFORE SENATE COMMITTEE ON COMMERCE ON S. 1152, 74TH
CONG., 1ST SESS. 

FN9  HALCYON LINES V. HAENN SHIP CORP., 342 U.S. 282, 286. 

FN10  WE HAVE NOT OVERLOOKED THE ARGUMENT THAT THIS BILL OF LADING
STIPULATION SHOULD BE UPHELD BECAUSE OF THIS COURT'S HOLDING AND
OPINION IN THE JASON, 225 U.S. 32.  THE JASON CASE UPHELD A STIPULATION
THAT BOTH SHIPOWNER AND CARGO OWNER SHOULD CONTRIBUTE IN GENERAL
AVERAGE ON ACCOUNT OF SACRIFICES AND EXPENSES NECESSARILY INCURRED BY
THE MASTER OF THE SHIP IN ORDER TO PRESERVE THE CARGO AS A WHOLE. 
MOREOVER, THIS GENERAL AVERAGE CLAUSE "WAS SUSTAINED BECAUSE IT
ADMITTED THE SHIPOWNER TO SHARE IN GENERAL AVERAGE ONLY IN
CIRCUMSTANCES WHERE BY THE HARTER ACT HE WAS RELIEVED FROM
RESPONSIBILITY."  AKTSLSK.  CUZCO V. THE SUCARSECO, 294 U.S. 394, 403. 
HERE THE SHIPOWNER ATTEMPTED TO RELIEVE ITSELF FROM RESPONSIBILITY FOR
NEGLIGENCE OF ITS EMPLOYEES IN CONNECTION WITH DAMAGES INFLICTED ON
ANOTHER SHIP - "CIRCUMSTANCES WHERE BY THE HARTER ACT HE WAS NOT
RELIEVED FROM RESPONSIBILITY." 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

ONLY A FEW WEEKS AGO THIS COURT REVERSED A UNANIMOUS OPINION OF THE
COURT OF APPEALS FOR THE FOURTH CIRCUIT WHICH HAD HELD OPPOSED TO
PUBLIC POLICY, AGREEMENTS WHEREBY RETAILERS OF EYEGLASSES TURNED OVER A
PORTION OF THE PURCHASE PRICE TO THE OCULIST WHO REFERRED THE CUSTOMER
TO THEM.  IN SO DOING, "WE VOICED NO APPROVAL OF THE BUSINESS ETHICS OR
PUBLIC POLICY INVOLVED" IN THE AGREEMENTS.  LILLY V. COMMISSIONER, 343
U.S. 90, 97.  THIS REFUSAL TO MAKE OUR PRIVATE VIEWS OF RIGHT INTO THE
LEGAL STANDARDS FOR THE ACTIVITIES OF MEN OF AFFAIRS HAS INCREASINGLY
CHARACTERIZED OUR DECISIONS IN THE VAGUE AND SHIFTING AREA OF
AGREEMENTS CHALLENGED AS UNENFORCEABLE BECAUSE OFFENSIVE TO WHAT MUST
BE DEEMED TO BE LEGALLY CONTROLLING POLICY.  "IN THE ABSENCE OF A PLAIN
INDICATION OF THAT DOMINANT PUBLIC POLICY THROUGH LONG GOVERNMENTAL
PRACTICE OR STATUTORY ENACTMENTS, OR OF VIOLATIONS OF OBVIOUS ETHICAL
OR MORAL STANDARDS, THIS COURT SHOULD NOT ASSUME TO DECLARE CONTRACTS
OF THE WAR DEPARTMENT CONTRARY TO PUBLIC POLICY."  MUSCHANY V. UNITED
STATES, 324 U.S. 49, 66-67.  NO MORE UNRESTRAINED JUSTIFICATION
WARRANTS COURTS TO STRIKE DOWN PRIVATE BUSINESS AGREEMENTS.  JUDGED BY
SUCH A STANDARD, THE AGREEMENTS BEFORE US SHOULD BE ENFORCED. 

BEFORE 1893, WHEN THE HARTER ACT (FN1) WAS PASSED, THE OBLIGATIONS OF
SEAGOING CARRIERS WITH RESPECT TO PASSENGERS AND CARGO WERE DEFINED BY
THIS COURT IN THE EXERCISE OF ITS ADMIRALTY AND MARITIME JURISDICTION
FROM CASE TO CASE.  TOWARD CARGO THE OCEAN CARRIER STOOD IN THE
RELATION OF AN INSURER, LIABLE FOR ANY DAMAGE SAVE THAT CAUSED BY ACT
OF GOD; AND TO PASSENGERS IT OWED THE DUTY OF HIGHEST CARE.  ONLY BY
HOLDING CARRIERS TO THIS MARK WAS IT THOUGHT THAT SAFETY IN OPERATION
COULD BE ACHIEVED AND UNDUE IMPOSITION BY CARRIERS ELIMINATED.   THE
CARRIERS SOUGHT TO AVOID THESE OBLIGATIONS BY SPECIAL CONTRACTS OR
STIPULATIONS IN BILLS OF LADING, RELIEVING THEM OF LIABILITIES WHICH
THEY WOULD INCUR UNDER THE RULES LAID DOWN BY THE COURTS IN THE ABSENCE
OF SUCH AGREEMENTS.  ALTHOUGH THE COURTS UPHELD SOME SUCH EFFORTS, THEY
RESERVED THE RIGHT TO REFUSE TO ENFORCE CONTRACTUAL EXEMPTIONS FROM
LIABILITY WHICH TRENCHED UPON JUDICIAL NOTIONS OF PUBLIC POLICY.  (FN2)
THE MOST IMPORTANT LIMIT THUS SET TO THE POWER OF THE CARRIER TO
CONTRACT OUT OF HIS COMMON-LAW LIABILITY WAS THE RULE THAT COURTS WOULD
STRIKE DOWN ANY STIPULATION WHICH RELIEVED THE CARRIER FOR HIRE FROM
LIABILITY FOR DAMAGE CAUSED BY ITS OWN NEGLIGENCE.  APPLIED FIRST BY
THIS COURT TO THE RAILROADS, RAILROAD CO. V. LOCKWOOD, 17 WALL.  357,
THE DOCTRINE WAS EXTENDED TO CARRIERS BY SEA A FEW YEARS LATER IN
LIVERPOOL & GREAT WESTERN STEAM CO. V. PHENIX INS. CO., 129 U.S. 397. 
UNDERLYING THE DECISION WAS THE PREMISE THAT SUCH AN AGREEMENT, IF
ENFORCED, WOULD TEND TO RELAX THE VIGILANCE AND CARE IN SEAMANSHIP
WHICH THE THREAT OF LIABILITY ENCOURAGED.  SEE RAILROAD CO. V.
LOCKWOOD, SUPRA, AT 371, 377-378. 

THE PROCESS BY WHICH THIS BODY OF RULES AND EXCEPTIONS WAS DEVELOPED
IS TYPICAL OF THE GROWTH OF JUDGE-MADE LAW IN OUR SYSTEM.  WITHOUT
LEGISLATIVE GUIDANCE, JUDGES IN DECIDING CASES ARE NECESSARILY THROWN
UPON THEIR OWN RESOURCES IN ASCERTAINING THE PUBLIC POLICY APPLICABLE
TO PARTICULAR SITUATIONS. 

THE JUDGE'S FUNCTION AND RESPONSIBILITY BECOME OTHERWISE ONCE THE
LEGISLATURE HAS FORMULATED PUBLIC POLICY.  COURTS ARE THEN NO LONGER AT
LARGE.  THEY MUST CARRY OUT THE DEFINED POLICY AND DISREGARD THEIR OWN
DETERMINATION OF WHAT THE PUBLIC GOOD DEMANDS.  SEE TWIN CITY CO. V.
HARDING GLASS CO., 283 U.S. 353, 357.  BY THE HARTER ACT, CONGRESS
SUPPLANTED THE JUDICIAL VIEW OF PUBLIC POLICY WITH ITS OWN IDEAS.  THE
LEGISLATION, AS IS SO OFTEN THE CASE, REPRESENTS A COMPROMISE AMONG
COMPETING INTERESTS.  THE CARRIERS WERE RELIEVED OF THEIR JUDICIALLY
IMPOSED INSURERS' LIABILITY.  IN RETURN THEY WERE REQUIRED TO FOREGO
THE POSSIBILITY OF AVOIDING BY CONTRACT CERTAIN SPECIFIED OBLIGATIONS. 
FINALLY, IF THOSE OBLIGATIONS WERE IN FACT PERFORMED, (FN3) RECOVERY
AGAINST THE CARRIER FOR DAMAGES TO CARGO DUE TO FAULTY NAVIGATION WAS
ALTOGETHER DISALLOWED.  THIS PROVISION, EMBODIED IN SEC. 3 OF THE
HARTER ACT, (FN4) NECESSARILY EXPRESSED A REJECTION OF THE JUDICIALLY
CONCEIVED PREMISE AS TO PUBLIC POLICY WHICH WAS THE FOUNDATION OF THE
DECISIONS WHICH ANTEDATED LEGISLATION, NAMELY, THAT LIABILITY FOR
NEGLIGENT NAVIGATION WAS A NECESSARY SPUR TO THE CARRIER'S EXERCISE OF
CARE.  SINCE THAT PREMISE HAS BEEN DISCARDED BY CONGRESS, NO
JUSTIFICATION REMAINS FOR US TO REVIVE IT AS A BASIS FOR STRIKING DOWN
THE AGREEMENT HERE IN QUESTION.  "THE LEGISLATURE HAS THE POWER TO
DECIDE WHAT THE POLICY OF LAW SHALL BE, AND IF IT HAS INTIMATED ITS
WILL, HOWEVER INDIRECTLY, THAT WILL SHOULD BE RECOGNIZED AND OBEYED. 
THE MAJOR PREMISE OF THE CONCLUSION EXPRESSED IN A STATUTE, THE CHANGE
OF POLICY THAT INDUCES THE ENACTMENT, MAY NOT BE SET OUT IN TERMS, BUT
IT IS NOT AN ADEQUATE DISCHARGE OF DUTY FOR COURTS TO SAY:  WE SEE WHAT
YOU ARE DRIVING AT, BUT YOU HAVE NOT SAID IT, AND THEREFORE WE SHALL GO
ON AS BEFORE."  JOHNSON V. UNITED STATES, 163 F. 30, 32 (PER HOLMES,
J.); SEE LANDIS, STATUTES AND THE SOURCES OF LAW, IN HARVARD LEGAL
ESSAYS, 213. 

TO BE SURE, THE HARTER ACT DID NOT IN TERMS PRESCRIBE THAT THE CARRIER
SHOULD HAVE RECOVERY OVER AGAINST CARGO FOR THE AMOUNT OF ITS LIABILITY
TO A NON-CARRYING SHIP, ATTRIBUTABLE TO PAYMENTS MADE BY THE NON
CARRIER FOR DAMAGE TO CARGO IN A COLLISION FOR WHICH BOTH VESSELS WERE
TO BLAME.  HENCE WE HELD IN THE CHATTAHOOCHEE, 173 U.S. 540, THAT NO
SUCH RECOVERY WAS AVAILABLE TO A CARRIER BY MERE FORCE OF THE ACT. 
SIMILARLY, AND IN THE SAME PERIOD SHORTLY AFTER THE PASSAGE OF THE
HARTER ACT, WE HELD THAT, SINCE THE ACT DID NOT SPECIFY THAT THE
CARRIER SHOULD PARTICIPATE IN A GENERAL AVERAGE (FN5) WHEN THE PERIL TO
WHICH IT RELATED WAS THE RESULT OF THE CARRIER'S FAULTY NAVIGATION, NO
SUCH PARTICIPATION COULD BE HAD IF THE CARRIER HAD NOT STIPULATED FOR
IT.  THE IRRAWADDY, 171 U.S. 187.  BUT WHEN A CARRIER DID CONTRACT FOR
SUCH PARTICIPATION, THE FORCE OF THE HARTER ACT REQUIRED THIS COURT TO
SUSTAIN THE STIPULATION.  THE JASON, 225 U.S. 32. 

"INSTEAD OF MERELY SANCTIONING COVENANTS AND AGREEMENTS LIMITING THE
SHIPOWNER'S LIABILITY, CONGRESS WENT FURTHER AND RENDERED SUCH
AGREEMENTS UNNECESSARY BY REPEALING THE LIABILITY ITSELF, DECLARING
THAT IF THE SHIPOWNER SHOULD EXERCISE DUE DILIGENCE TO MAKE THE VESSEL
IN ALL RESPECTS SEAWORTHY, AND PROPERLY MANNED, EQUIPPED AND SUPPLIED,
NEITHER THE VESSEL, HER OWNER OR OWNERS, ETC., SHOULD BE RESPONSIBLE
FOR DAMAGE OR LOSS RESULTING FROM FAULTS OR ERRORS IN NAVIGATION OR IN
THE MANAGEMENT OF THE VESSEL, ETC., ETC.  THE ANTITHESIS IS WORTH
NOTING.  CONGRESS SAYS TO THE SHIPOWNER - 'IN CERTAIN RESPECTS YOU
SHALL NOT BE RELIEVED FROM THE RESPONSIBILITIES INCIDENT TO YOUR PUBLIC
OCCUPATION AS A COMMON CARRIER, ALTHOUGH THE CARGO OWNERS AGREE THAT
YOU SHALL BE RELIEVED; IN CERTAIN OTHER RESPECTS (PROVIDING YOU FULFILL
CONDITIONS SPECIFIED) YOU SHALL BE RELIEVED FROM RESPONSIBILITY, EVEN
WITHOUT A STIPULATION FROM THE OWNERS OF CARGO.'"  THE JASON, SUPRA, AT
50-51. 

"IN OUR OPINION, SO FAR AS THE HARTER ACT HAS RELIEVED THE SHIPOWNER
FROM RESPONSIBILITY FOR THE NEGLIGENCE OF HIS MASTER AND CREW, IT IS NO
LONGER AGAINST THE POLICY OF THE LAW FOR HIM TO CONTRACT WITH THE CARGO
OWNERS FOR A PARTICIPATION IN GENERAL AVERAGE CONTRIBUTION GROWING OUT
OF SUCH NEGLIGENCE; ...  ."  ID., AT 55. 

THE PRESENT CASE BEARS EXACTLY THE SAME RELATION TO THE CHATTAHOOCHEE
THAT THE JASON BORE TO THE IRRAWADDY.  TO REVIVE NOTIONS OF PUBLIC
POLICY WHICH CONGRESS REJECTED IN 1893, DISREGARDS THE APPROPRIATE
CONSIDERATIONS THAT GOVERNED APPLICATION OF THE HARTER ACT IN THE
EARLIER DECISIONS.  (FN6)  TO DERIVE FROM A STATUTE, WHICH RELIEVES A
SHIP ENTIRELY OF LIABILITY TO CARGO WHEN THE SHIP IS WHOLLY TO BLAME
FOR THE LOSS, AS IMPLIED RESTRICTION AGAINST A VOLUNTARY ARRANGEMENT
FOR RELIEF FROM LIABILITY WHEN THE SHIP IS ONLY HALF TO BLAME, IS
SURELY AN ODD USE TO WHICH TO PUT SUCH A STATUTE.  WHEN THIS COURT DOES
FASHION A RULE OF PUBLIC POLICY IT OUGHT TO BE LESS PERVERSE AND
ILLOGICAL THAN THAT IN ITS OPERATION.   IT IS SUGGESTED, HOWEVER, THAT
THE REAL MEANING OF THE HARTER ACT IS THAT CARRIERS ARE REMITTED TO
CONGRESS FOR WHATEVER IMMUNITIES THEY WERE TO BE GRANTED.  THAT IS A
MOST DOCTRINAIRE VIEW TO TAKE OF THE LEGISLATION, AND THE JASON, SUPRA,
DISPOSES OF THE NOTION.  (FN7)  WHAT CONGRESS DID WAS TO LEGISLATE
GENERALLY ABOUT THE RELATIONS BETWEEN CARRIER AND CARGO IN SEAGOING
COMMERCE.  GENERALLY, BUT NOT COMPREHENSIVELY AS THOUGH IT FORMULATED A
MARITIME CODE EXCLUDING ALL CONSENSUAL ARRANGEMENTS WITHIN THE
INDUSTRY.  THAT LEGISLATION "INDICATES OR REQUIRES AS ITS JUSTIFICATION
A CHANGE IN THE POLICY OF THE LAW, ALTHOUGH IT EXPRESSES THAT CHANGE
ONLY IN THE SPECIFIC CASES MOST LIKELY TO OCCUR TO THE MIND."  JOHNSON
V. UNITED STATES, SUPRA, AT 32.  WE SHOULD HEED THE ADMONITION OF MR.
JUSTICE HOLMES "THAT COURTS IN DEALING WITH STATUTES SOMETIMES HAVE
BEEN TOO SLOW TO RECOGNIZE THAT STATUTES EVEN WHEN IN TERMS COVERING
ONLY PARTICULAR CASES MAY IMPLY A POLICY DIFFERENT FROM THAT OF THE
COMMON LAW, AND THEREFORE MAY EXCLUDE A REFERENCE TO THE COMMON LAW FOR
THE PURPOSE OF LIMITING THEIR SCOPE."  PANAMA R. CO. V. ROCK, 266 U.S.
209, 215-216 (HOLMES, J., WITH TAFT, C.J., MCKENNA AND BRANDEIS, JJ.,
DISSENTING).  THIS IS SUCH A STATUTE.  I WOULD RECOGNIZE THAT THE
CONGRESSIONAL PRONOUNCEMENT OF PUBLIC POLICY - WHEN IT EXEMPTED
CARRIERS FROM LIABILITY FOR FAULTY NAVIGATION - PRECLUDES OUR STRIKING
DOWN THE CLAUSE HERE IN ISSUE. 

FN1  ACT OF FEB. 13, 1893, 27 STAT. 445.  THE ACT HAS NOW BEEN
SUPERSEDED BY THE CARRIAGE OF GOODS BY SEA ACT OF 1936, 49 STAT. 1207,
46 U.S.C. SEC. 1300 ET SEQ., BUT ANY CHANGES ARE NOT RELEVANT TO THE
ISSUES HERE INVOLVED. 

FN2  THE COURTS BASED THIS RESERVATION UPON THE OBSERVATION THAT SUCH
CONTRACTS WERE NOT IN FACT CONSENSUAL AGREEMENTS.  THE SHIPPER HAD
LITTLE CHOICE BUT TO ACCEPT THE CARRIERS' TERMS.  SEE, E.G., RAILROAD
CO. V. LOCKWOOD, 17 WALL.  357, 379; LIVERPOOL & GREAT WESTERN STEAM
CO. V. PHENIX INS. CO., 129 U.S. 397, 441.  THIS CIRCUMSTANCE DID NOT
NECESSARILY VOID THE AGREEMENT, SINCE MANY STIPULATIONS WERE UPHELD. 
BUT IT PROVIDED JUSTIFICATION FOR REFUSING TO ENFORCE THOSE WHICH
OFFENDED JUDICIALLY PRONOUNCED PUBLIC POLICY. 

FN3  THIS PROVISO WAS ELIMINATED BY THE CARRIAGE OF GOODS BY SEA ACT
OF 1936, 49 STAT.  1207, 1210, 46 U.S.C. SEC. 1304. 

FN4  27 STAT. 445. 

FN5  THE GENERAL AVERAGE IS A DOCTRINE OF MARITIME LAW WHICH PROVIDES
THAT WHERE A PORTION OF SHIP OR CARGO IS SACRIFICED TO SAVE THE RESIDUE
FROM PERIL OF SHIPWRECK, EACH OWNER OF PROPERTY SAVED CONTRIBUTES IN
PROPORTION TO THE VALUE OF THAT PROPERTY TO MAKE UP THE LOSS OF THOSE
WHOSE PROPERTY HAS BEEN SACRIFICED FOR THE COMMON BENEFIT.  IT WAS
CHARACTERISTIC OF DEAN JAMES BARR AMES'S POWER OF FERTILE
GENERALIZATION TO FIND IN THE MARITIME DOCTRINE OF GENERAL AVERAGE
MANIFESTATION OF MORE COMPREHENSIVE QUASI-CONTRACTUAL PRINCIPLE AGAINST
UNJUST ENRICHMENT. 

FN6  RELIANCE BY THE COURT ON THE KENSINGTON, 183 U.S. 263, IS SURELY
MISPLACED, AND THE QUOTATION FROM IT MUST BE PUT IN ITS SETTING.  THAT
WAS A CASE IN WHICH RECOVERY WAS SOUGHT FOR DAMAGE TO A PASSENGER'S
BAGGAGE, ALTHOUGH THE TICKET CONTAINED A STIPULATION AGAINST THE
CARRIER'S LIABILITY.  THE COURT NOTED THAT THE HARTER ACT IMMUNITY FROM
LIABILITY FOR NEGLIGENCE APPLIED ONLY TO VESSELS "WHEN ENGAGED IN THE
CLASSES OF CARRIAGE COMING WITHIN THE TERMS OF THE STATUTE."  ID., AT
268.  WITHOUT DECIDING WHETHER PASSENGERS' BAGGAGE WAS SUCH A CLASS OF
CARRIAGE, THE COURT STRUCK DOWN THE STIPULATION ON THE GROUND THAT, IF
THE HARTER ACT APPLIED, THE AGREEMENT WAS VOID AS VIOLATIVE OF THE ACT
IN THAT IT SOUGHT IMMUNITY FOR NEGLIGENT STOWAGE, SPECIFICALLY
FORBIDDEN BY THE ACT; IF THE CARRIAGE OF PASSENGERS' BAGGAGE WAS NOT
AMONG THE CLASSES EXEMPTED FROM LIABILITY BY THE ACT, THEN OF COURSE,
THE CASES VOIDING SUCH STIPULATIONS WITH RESPECT TO BAGGAGE RETAINED
THEIR FORCE.  CERTAINLY A DECISION AFFIRMING THE CONTINUED
APPLICABILITY OF THESE CASES AS TO BAGGAGE, GOODS FOR WHICH CONGRESS
HAS NOT WITHDRAWN CARRIER LIABILITY FOR NEGLIGENCE, AND IN ANY EVENT
NOT FOR NEGLIGENT STOWAGE, IS TOTALLY INAPPOSITE TO CARGO, WHERE
CONGRESS HAS GRANTED THE CARRIER IMMUNITY FROM SUCH LIABILITY. 

FN7  BUT EVEN IF IT DID NOT, THE ARGUMENT APPEARS TO BE DRAWN FROM
THE BLUE.  IT WOULD HAVE BASIS IN REALITY IF CONGRESS HAD, BY THE
HARTER ACT, CARVED AN EXCEPTION FROM A PRE-EXISTING RULE OUTLAWING ALL
AGREEMENTS BETWEEN SHIPPER AND CARRIER REGARDING LIABILITY.  THE
GENERAL PROHIBITION WOULD CONTINUE IN FORCE BECAUSE THE HARTER ACT
WOULD HAVE BEEN A DEFINED, LIMITED QUALIFICATION.  BUT THERE WAS NO
SUCH RULE, EITHER JUDGE-MADE OR STATUTORY.  CONGRESS HAD TAKEN NO
ACTION.  AND THIS COURT DID NOT OUTLAW SUCH AGREEMENTS GENERALLY.  IT
STRUCK DOWN SPECIFIC AGREEMENTS FOR SPECIFIC REASONS GROUNDED IN ITS
VIEW OF PUBLIC POLICY.  THAT PREMISE OF POLICY WAS DENIED VALIDITY BY
THE HARTER ACT.  IT SMACKS OF THE FANCIFUL TO SUGGEST THAT WHAT
CONGRESS REALLY DID WAS TO RAISE A PROVISO TO AN EXISTING ABSOLUTE RULE
BASED ON THAT PREMISE. 
..END :








KAUFMAN V. SOCIETE INTERNATIONALE POUR PARTICIPATIONS INDUSTRIELLES ET
COMMERCIALES, S.A.  343 U.S. 156 


NO. 172.  ARGUED JANUARY 2, 1952 - DECIDED APRIL 7, 1952 - 88 U.S. APP.
D.C. 296, 188 F.2D 1017, REVERSED. 


1.  WHEN THE ALIEN PROPERTY CUSTODIAN, UNDER SEC. 5(B) OF THE TRADING
WITH THE ENEMY ACT, AS AMENDED BY THE FIRST WAR POWERS ACT OF 1941,
SEIZES AMERICAN ASSETS OF A CORPORATION ORGANIZED UNDER THE LAWS OF A
NEUTRAL COUNTRY BUT DOMINATED AND CONTROLLED BY ENEMY ALIENS, THE
RIGHTS OF INNOCENT NONENEMY STOCKHOLDERS TO AN INTEREST IN THE ASSETS
PROPORTIONATE TO THEIR STOCKHOLDINGS MUST BE FULLY PROTECTED.  PP. 158
160. 

2.  UNDER RULE 24(A)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE,
INNOCENT NONENEMY STOCKHOLDERS ARE ENTITLED TO INTERVENE IN A SUIT
BROUGHT UNDER SEC. 9(A) OF THE TRADING WITH THE ENEMY ACT BY A
CORPORATION, ORGANIZED UNDER THE LAWS OF A NEUTRAL COUNTRY BUT
DOMINATED AND CONTROLLED BY ENEMY ALIENS, TO RECOVER AMERICAN ASSETS
SEIZED BY THE ALIEN PROPERTY CUSTODIAN UNDER SEC. 5(B), AS AMENDED BY
THE FIRST WAR POWERS ACT OF 1941, WHEN THERE IS A SHOWING THAT THE
RIGHTS OF SUCH INNOCENT NONENEMY STOCKHOLDERS WILL NOT BE ADEQUATELY
PROTECTED BY THE CORPORATION IN SUCH SUIT AND THEY MAY BE BOUND BY THE
JUDGMENT IN SUCH SUIT.  PP. 160-162. 

KAUFMAN ET AL. V. SOCIETE INTERNATIONALE POUR PARTICIPATIONS
INDUSTRIELLES ET COMMERCIALES, S.A., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE DISTRICT COURT DENIED PETITIONERS' MOTION TO INTERVENE IN A SUIT
BROUGHT BY A CORPORATION UNDER SEC. 9(A) OF THE TRADING WITH THE ENEMY
ACT TO RECOVER ASSETS SEIZED BY THE ALIEN PROPERTY CUSTODIAN UNDER SEC.
5(B), AS AMENDED BY THE FIRST WAR POWERS ACT OF 1941.  90 F. SUPP.
1011.  THE COURT OF APPEALS AFFIRMED.  88 U.S. APP. D.C. 296, 188 F.2D
1017.  THIS COURT GRANTED CERTIORARI.  342 U.S. 847.  REVERSED, P.
162. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ACTING UNDER SEC. 5(B) OF THE TRADING WITH THE ENEMY ACT, (FN1) THE
ALIEN PROPERTY CUSTODIAN VESTED IN HIMSELF THE AMERICAN ASSETS OF
INTERHANDEL, A SWISS CORPORATION.  (FN2)  INTERHANDEL SUED IN THE
DISTRICT COURT TO RECOVER THE ASSETS.  THE CUSTODIAN (FN3) ANSWERED
ALLEGING THAT THE SWISS CORPORATION WAS DOMINATED AND CONTROLLED BY
OFFICERS, AGENTS, AND STOCKHOLDERS WHO WERE ENGAGED IN A CONSPIRACY
WITH GERMAN NATIONALS AND WITH THE GERMAN GOVERNMENT TO OPERATE THE
COMPANY'S BUSINESS IN THEIR INTERESTS WHILE WE WERE AT WAR WITH
GERMANY.  PETITIONERS, UNITED STATES CITIZENS WHO OWN STOCK IN
INTERHANDEL, FILED A MOTION TO INTERVENE.  THEY ADMITTED THE
CUSTODIAN'S CHARGE THAT INTERHANDEL WAS DOMINATED BY OFFICERS AND
STOCKHOLDERS WHO HAD BEEN ENGAGED IN SUCH A CONSPIRACY.  THEY ALSO
ADMITTED THE RIGHT OF THE CUSTODIAN TO RETAIN AN INTEREST IN THE SEIZED
ASSETS PROPORTIONAL TO THE STOCK OWNERSHIP OF ENEMY STOCKHOLDERS.  BUT
PETITIONERS CONTENDED THAT THEY AND OTHER NONENEMY STOCKHOLDERS HAD
CLAIMS IN THE CORPORATE ASSETS WHICH IT WAS THE CORPORATION'S DUTY TO
PROTECT.  ALLEGING THAT THE DOMINANT ENEMY GROUP WHICH HAD CHARGE OF
THE SUIT WOULD NOT PRESS THE CORPORATE CLAIM IN A MANNER THAT WOULD
ADEQUATELY PROTECT THE CLAIMS OF INNOCENT SHAREHOLDERS, PETITIONERS
ASSERTED A RIGHT TO INTERVENE UNDER RULE 24(A) OF THE FEDERAL RULES OF
CIVIL PROCEDURE.  THE DISTRICT COURT DENIED THE MOTION TO INTERVENE, 90
F. SUPP. 1011, AND THE COURT OF APPEALS AFFIRMED, 88 U.S. APP. D.C.
296, 188 F.2D 1017.  UNDERLYING THE CLAIMED RIGHT OF PETITIONERS TO
INTERVENE IS AN IMPORTANT QUESTION OF THE POWER OF THE ALIEN PROPERTY
CUSTODIAN UNDER THE TRADING WITH THE ENEMY ACT, NAMELY:  WHAT PART OF
THE ASSETS OF A CORPORATION ORGANIZED UNDER THE LAWS OF A NEUTRAL
COUNTRY MAY THE CUSTODIAN RETAIN WHERE PART OF THE CORPORATE STOCK IS
OWNED BY ENEMIES, PART BY AMERICAN CITIZENS, AND PART BY NONENEMY
ALIENS?  THIS QUESTION WAS RESERVED IN CLARK V. UEBERSEE FINANZ-KORP.,
332 U.S. 480, 489-490.  TO CONSIDER IT WE GRANTED CERTIORARI IN THIS
CASE.  342 U.S. 847. 

FIRST.  INTERHANDEL IS A NEUTRAL CORPORATION ORGANIZED IN
SWITZERLAND.  PRIOR TO 1941, EVEN OWNERSHIP OF ITS STOCK AND DOMINATION
BY ENEMY NATIONALS WOULD NOT HAVE JUSTIFIED SEIZURE OF ITS ASSETS.  IN
ORDER TO REACH THE ENEMY INTERESTS IN SUCH NEUTRAL CORPORATIONS,
CONGRESS AMENDED THE CONTROLLING ACT IN 1941.  THE BACKGROUND, SCOPE
AND CONSEQUENCES OF THAT AMENDMENT WERE DISCUSSED IN CLARK V. UEBERSEE
FINANZ-KORP., SUPRA.  WE THERE HELD THAT THE 1941 AMENDMENT AUTHORIZED
THE CUSTODIAN TO SEIZE AND VEST IN HIMSELF ALL PROPERTY OF ANY FOREIGN
COUNTRY OR NATIONAL, EVEN THAT OF FRIENDLY OR NEUTRAL NATIONS.  AT THE
SAME TIME WE REFUSED TO HOLD THAT THE 1941 AMENDMENT DEPRIVED FRIENDLY
OR NEUTRAL NATIONS OR NATIONALS OF A RIGHT TO HAVE THEIR ASSETS
RETURNED IF THEY COULD PROVE THAT THEY WERE FREE OF ANY OPEN OR
CONCEALED ENEMY TAINT.  THE PURPOSE OF THE AMENDMENT, WE FOUND, WAS
"NOT TO APPROPRIATE FRIENDLY OR NEUTRAL ASSETS BUT TO REACH ENEMY
INTERESTS WHICH MASQUERADED UNDER THOSE INNOCENT FRONTS."  CLARK V.
UEBERSEE FINANZ-KORP., SUPRA, AT 485. 

THUS, UNDER THE 1941 AMENDMENT THE NONENEMY CHARACTER OF A FOREIGN
CORPORATION BECAUSE IT WAS ORGANIZED IN A FRIENDLY OR NEUTRAL NATION NO
LONGER CONCLUSIVELY DETERMINES THAT ALL INTERESTS IN THE CORPORATION
MUST BE TREATED AS FRIENDLY OR NEUTRAL.  THE CORPORATE VEIL CAN NOW BE
PIERCED.  ENEMY TAINT CAN BE FOUND IF THERE ARE ENEMY OFFICERS OR
STOCKHOLDERS; EVEN THE PRESENCE OF SOME NONENEMY STOCKHOLDERS DOES NOT
PREVENT SEIZURE OF ALL THE CORPORATE ASSETS.  BUT SUCH A GOVERNMENTAL
SEIZURE REQUIRES CONSIDERATION OF THE PLIGHT OF INNOCENT STOCKHOLDERS. 
FOR AS STATED IN THE UEBERSEE CASE, THE AMENDMENT DOES NOT CONTEMPLATE
APPROPRIATION OF FRIENDLY OR NEUTRAL ASSETS.  WHILE CONGRESS HAS
CLEARLY PROVIDED FOR FORFEITURE OF ENEMY ASSETS, IT HAS USED NO
LANGUAGE REQUIRING US TO HOLD THAT INNOCENT INTERESTS MUST BE
CONFISCATED BECAUSE OF THE GUILT OF OTHER STOCKHOLDERS.  NOR DOES ANY
LEGISLATIVE HISTORY POINTED OUT PERSUADE US THAT CONGRESS INTENDED TO
INFLICT SUCH HARSH CONSEQUENCES UPON THE INNOCENT.  WE DECLINE TO READ
SUCH A CONGRESSIONAL PURPOSE INTO THE ACT. 

OUR HOLDING IS THAT WHEN THE GOVERNMENT SEIZES ASSETS OF A
CORPORATION ORGANIZED UNDER THE LAWS OF A NEUTRAL COUNTRY, THE RIGHTS
OF INNOCENT STOCKHOLDERS TO AN INTEREST IN THE ASSETS PROPORTIONATE TO
THEIR STOCK HOLDINGS MUST BE FULLY PROTECTED.  THIS HOLDING IS NOT
BASED ON ANY TECHNICAL CONCEPT OF DERIVATIVE RIGHTS APPROPRIATE TO THE
LAW OF CORPORATIONS.  IT IS BASED ON THE ACT WHICH ENABLES ONE NOT AN
ENEMY AS DEFINED IN SEC. 2 TO RECOVER ANY INTEREST, RIGHT OR TITLE
WHICH HE HAS IN THE PROPERTY VESTED.  THE INNOCENT STOCKHOLDER MAY NOT
HAVE TITLE TO CORPORATE ASSETS, BUT HE DOES HAVE AN INTEREST WHICH
CONGRESS HAS INDICATED SHOULD NOT BE CONFISCATED MERELY BECAUSE SOME
OTHERS WHO HAVE LIKE INTERESTS ARE ENEMIES. 

SECOND.  SECTION 9(A) OF THE TRADING WITH THE ENEMY ACT AUTHORIZED
INTERHANDEL TO MAINTAIN THIS ACTION FOR THE RECOVERY OF ALL ITS ASSETS
BECAUSE IT HAS ALLEGED THAT IT IS NOT ENEMY DOMINATED.  ALLEGING THAT
THEY AND OTHERS ARE NONENEMY STOCKHOLDERS, PETITIONERS CHARGE THAT IT
IS INTERHANDEL'S CORPORATE DUTY TO ASSERT A CLAIM FOR THE RETURN OF
THEIR PROPORTIONATE INTERESTS IN THE ASSETS EVEN THOUGH OTHER
STOCKHOLDERS WHO DOMINATE THE CORPORATION ARE FOUND TO BE ENEMIES. 
PETITIONERS FURTHER ALLEGE THAT THE CORPORATE MANAGEMENT REFUSES TO
ASSERT SUCH A CLAIM, BUT CONTINUES TO CLAIM ONLY A RETURN OF ALL ASSETS
ON THE THEORY THAT WHATEVER RETURN IS OBTAINED MUST BE DIVIDED AMONG
ENEMY AND NONENEMY SHAREHOLDERS IN PROPORTION TO THEIR STOCK HOLDINGS. 
THIS POSITION IS TAKEN, PETITIONERS CHARGE, BECAUSE THE SUIT IS BEING
CONTROLLED BY THE VERY STOCKHOLDERS ON WHOSE ACCOUNT THE CUSTODIAN
SEIZED THE PROPERTY AND WHOSE INTERESTS WILL BE WORTHLESS IF THEY ARE
FOUND TO BE ENEMIES.  PETITIONERS ALLEGE THAT THIS ENEMY CORPORATE
MANAGEMENT, FEARING CONFISCATION OF ITS ENEMY-TAINTED INTERESTS, IS
ABOUT TO SETTLE THE CORPORATE CLAIM WITH THE CUSTODIAN FOR AN AMOUNT
LESS THAN THE VALUE OF THE NONENEMY PART OF THE ASSETS.  SHOULD THIS BE
DONE, IT IS SAID THE ENEMY MANAGEMENT CONTEMPLATES DIVIDING THE
PROCEEDS PROPORTIONATELY AMONG ENEMY AND NONENEMY STOCKHOLDERS, THUS
VIOLATING THE ACT IN TWO WAYS:  (1) BY DEPRIVING NONENEMY STOCKHOLDERS
OF PART OF THEIR PROPERTY, AND (2) BY RETURNING ASSETS TO FOREIGN ENEMY
STOCKHOLDERS. 

A MERE NARRATION OF THE ALLEGATIONS SHOWS THAT PETITIONERS' FEARS ARE
BY NO MEANS FANCIFUL.  INDEED, THE GOVERNMENT AGREES WITH THE DOMINANT
CORPORATE MANAGEMENT THAT THE INTERESTS OF ENEMY AND NONENEMY
STOCKHOLDERS SHOULD BE TREATED ALIKE.  THE UNITED STATES WISHES TO SELL
THE ENTIRE ASSETS OF INTERHANDEL.  AND IT IS ARGUED THAT IF NONENEMY
STOCKHOLDERS ARE TO BE GIVEN A CHANCE IN COURT (WHICH RIGHT IS
CHALLENGED), THEY SHOULD BE LIMITED TO INDIVIDUAL SUITS FOR MONEY
JUDGMENTS AGAINST THE CUSTODIAN.  PETITIONERS CLAIM A PROPORTIONAL
RIGHT OR INTEREST IN THE SPECIFIC ASSETS OF INTERHANDEL AND THAT THEY
MAY NOT BE DRIVEN TO ACCEPT THEIR SHARE OF WHATEVER PRICE THE
GOVERNMENT MAY HAPPEN TO GET FROM A SALE OF THESE VALUABLE ASSETS.  IN
ORDER TO PLAY SAFE, PETITIONERS HAVE FILED A SEPARATE SUIT IN A FEDERAL
DISTRICT COURT.  BUT WE THINK THE QUESTIONS INVOLVED IN DISPUTES LIKE
THIS CAN BE MORE APPROPRIATELY RESOLVED IN THE CORPORATE ACTIONS
AUTHORIZED BY SEC. 9(A) THAN BY RESORT TO A MULTIPLICITY OF SEPARATE
ACTIONS.  IN SUCH SUITS THE NONENEMY STOCKHOLDER IN HIS OWN RIGHT MAY
ASSERT HIS NONENEMY CHARACTER IN ORDER TO PROTECT HIS OWN INTEREST FROM
THE ENEMY TAINT CAUSED BY OTHER STOCKHOLDERS.  COURTS TRYING SUCH
CORPORATE ACTIONS HAVE ADEQUATE EQUITABLE POWER AND PROCEDURAL
FLEXIBILITY TO PROTECT ALL INTERESTS, EVEN WHEN THE CORPORATE RECOVERY
IS NOT FOR THE BENEFIT OF ALL STOCKHOLDERS BUT ONLY FOR THOSE WHO ARE
NONENEMIES. 

IN VIEW OF OUR HOLDING THAT CONGRESS HAS RECOGNIZED THAT NONENEMY
STOCKHOLDERS OF NONENEMY FOREIGN CORPORATIONS HAVE A SEVERABLE INTEREST
IN CORPORATE ASSETS SEIZED BY THE CUSTODIAN, IT FOLLOWS THAT THE
ALLEGATIONS OF THESE PETITIONERS ENTITLE THEM TO INTERVENE.  THESE
ALLEGATIONS, IF TRUE, SHOW THAT PETITIONERS' INTERESTS MAY BE
INADEQUATELY REPRESENTED AND THAT THEY MAY BE BOUND BY A JUDGMENT IN
THIS CORPORATE ACTION.  THIS BRINGS THE CLAIM OF INTERVENTION SQUARELY
WITHIN RULE 24(A)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  (FN4)
REVERSED. 

FN1  40 STAT. 411, 50 U.S.C. APP. SEC. 1, AS AMENDED BY THE FIRST WAR
POWERS ACT, 1941, 55 STAT. 839, 50 U.S.C. APP. SEC. 5(B). 

FN2  ALTHOUGH THE CORPORATION IS COMMONLY CALLED "INTERHANDEL," ITS
FULL LEGAL NAME IS SOCIETE INTERNATIONALE POUR PARTICIPATIONS
INDUSTRIELLES ET COMMERCIALES S.A., ETC.  THE AMERICAN ASSETS CONSISTED
OF BANK ACCOUNTS AND OVER 90% OF THE CAPITAL STOCK IN THE GENERAL
ANILINE & FILM CORPORATION OF DELAWARE, ALL OF THE ASSETS APPARENTLY
BEING VALUED AT MORE THAN $100,000,000. 

FN3  IN 1946, THE ATTORNEY GENERAL SUCCEEDED TO THE POWERS AND DUTIES
OF THE ALIEN PROPERTY CUSTODIAN.  EXEC. ORDER NO. 9788, 11 FED. REG.
11981. 

FN4  "UPON TIMELY APPLICATION ANYONE SHALL BE PERMITTED TO INTERVENE
IN AN ACTION:  ...  (2) WHEN THE REPRESENTATION OF THE APPLICANT'S
INTEREST BY EXISTING PARTIES IS OR MAY BE INADEQUATE AND THE APPLICANT
IS OR MAY BE BOUND BY A JUDGMENT IN THE ACTION; ...  ."  SEE SUTPHEN
ESTATES, INC. V. UNITED STATES, 342 U.S. 19. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

THE COURT HOLDS THAT "WHEN THE GOVERNMENT SEIZES ASSETS OF A
CORPORATION ORGANIZED UNDER THE LAWS OF A NEUTRAL COUNTRY, THE RIGHTS
OF INNOCENT STOCKHOLDERS TO AN INTEREST IN THE ASSETS PROPORTIONATE TO
THEIR STOCK HOLDINGS MUST BE FULLY PROTECTED."  SUCH A HOLDING OPENS
WIDE ONE DOOR OF ESCAPE FROM WAR DAMAGE CLAIMS OF THE UNITED STATES AND
ITS CITIZENS AGAINST FOREIGN CORPORATIONS, ORGANIZED AND CONTROLLED BY
ENEMIES IN NEUTRAL TERRITORY.  AS THE OPINION DOES NOT INDICATE WHETHER
THE ALLEGED NONENEMY STOCKHOLDER MUST BEAR THE BURDEN OF PROVING HIS
CHARACTER, WE ASSUME THAT THIS BURDEN RESTS ON THE CLAIMANT STOCKHOLDER
IN AN ENEMY-TAINTED CORPORATION.  EVEN SO, THE DIFFICULTY OF REBUTTING
AN INDIVIDUAL'S SELF-SERVING EVIDENCE AS TO HIS NEUTRALITY IS OBVIOUS. 
THE WAR AND PREWAR ACTIVITIES AND CONNECTIONS OF THE MANY AMERICAN AND
NEUTRAL RESIDENTS, STOCKHOLDERS OF NEUTRAL CORPORATIONS ENGAGED IN
WORLD-WIDE DEALINGS, ARE KNOWN LARGELY ONLY TO THE INTERESTED
INDIVIDUAL.  THE DEFINITION OF "ENEMY" IN THE TRADING WITH THE ENEMY
ACT LEAVES INNUMERABLE PATHS FOR STOCKHOLDERS SHELTERED BY THE COURT'S
DECISION TO ESCAPE RESPONSIBILITY FOR THE ACTS OF THE CORPORATE AGENCY
THAT THEIR INVESTMENTS HAVE MADE POWERFUL AND EFFICIENT TO UNDERMINE
OUR SECURITY.  (FN1) 

THUS A NATIONAL OF AN ENEMY NATION, UNDER GUESSEFELDT V. MCGRATH, 342
U.S. 308, MAY NOW RECOVER, ON HIS SHOWING OF HIS OWN NONENEMY
CHARACTER, ALL HIS INTEREST IN THE ASSETS OF VESTED ENEMY-DOMINATED
NEUTRAL CORPORATIONS.  EVERY DOLLAR THAT MAY BE DRAWN BY NONENEMIES
FROM THE ASSETS OF AN ENEMY-DOMINATED CORPORATION REDUCES THE SUMS
AVAILABLE FOR NATIONAL AND INDIVIDUAL INDEMNIFICATION FOR WAR DAMAGE. 
(FN2)  AS THE OBJECTIVE OF THE TRADING WITH THE ENEMY ACT IS NOT ONLY
THE STERILIZATION OF FUNDS AGAINST ENEMY USE DURING WAR BUT ALSO THE
CREATION OF A REPARATION POOL OF ENEMY AND ENEMY-TAINTED ASSETS FOR
INDEMNIFICATION OF WAR INJURIES, SUCH DIMINUTIONS IMPERIL THE PURPOSES
OF THE ACT.  CF. PROPPER V. CLARK, 337 U.S. 472, 484. 

                        II. 

THE COURT'S HOLDING PERMITS FOREIGN SYMPATHIZERS, RESIDENTS OF THE
UNITED STATES OR NEUTRAL TERRITORY, NOT COVERED BY THE DEFINITION OF
ENEMIES, TO AVOID SACRIFICE IN WAR OF THEIR FINANCIAL INTERESTS THROUGH
THE TRITE SCHEME OF INVESTMENT IN NEUTRAL CORPORATIONS, CONTROLLED AND
USED BY OUR ENEMIES FOR OUR DEFEAT.  IF THE QUESTION OF THE RIGHTS OF A
NONENEMY STOCKHOLDER WERE AT ISSUE IN UEBERSEE FINANZ-KORPORATION V.
MCGRATH, 343 U.S. 205, DECIDED TODAY, THAT NONENEMY STOCKHOLDER, UNDER
THE COURT'S OPINION IN THIS CASE, WOULD RECOVER HIS PROPORTION OF THE
CORPORATION ASSETS, DESPITE THE FACT THAT UEBERSEE: 

"OWNED ALL THE STOCK OF A SUBSIDIARY HUNGARIAN CORPORATION ENGAGED IN
THE MINING OF BAUXITE IN HUNGARY, AND IN 1939 AND 1940 GUARANTEED A
LOAN BY A SWISS BANK TO THIS CORPORATION FOR ITS OPERATIONS.  THE LOAN
WAS REPAID IN NOVEMBER 1942.  THE UNITED STATES WAS AT WAR WITH HUNGARY
FROM DECEMBER 13, 1941.  DURING OCTOBER, NOVEMBER, AND DECEMBER 1941,
THE HUNGARIAN CORPORATION SHIPPED BAUXITE TO GERMANY AND HAD A CONTRACT
TO DO SO UNTIL THE END OF 1942."  343 U.S. 205, 209-210.    AT ONE TIME
THIS NATION ALLOWED SUCH EASY ESCAPE FROM THE PENALTIES OF WAR, RELYING
UPON THE OWNERSHIP OF CORPORATE STOCK FOR PROTECTION.  (FN3)  BEHN,
MEYER & CO. V. MILLER, 266 U.S. 457, DEMONSTRATED THE FUTILITY OF SUCH
A METHOD OF PROTECTION.  IT WAS TO PLUG THIS LOOPHOLE THAT THE CONGRESS
ENACTED IN 1941 THE EXISTING SEC. 5(B) OF THE TRADING WITH THE ENEMY
ACT, AUTHORIZING THE PRESIDENT TO VEST "ANY PROPERTY OR INTEREST OF ANY
FOREIGN COUNTRY OR NATIONAL THEREOF."  (FN4)  IT SURELY WAS NOT THE
PURPOSE OF CONGRESS TO LEAVE THE DOOR HALFWAY OPEN. 

                                 III. 

THE COURT'S HOLDING DISREGARDS THE NORMAL INCIDENTS OF CORPORATE
RESPONSIBILITY AND FRUSTRATES THE PURPOSE OF CONGRESS TO REPAIR THE GAP
IN OUR DEFENSE POLICY TOWARD ALIEN PROPERTY POINTED OUT BY OUR BEHN
MEYER DECISION.  THE UEBERSEE CASE DID NOT DECIDE THE ISSUE HERE
PRESENTED.  IT LEFT OPEN THE EFFECT OF ENEMY OWNERSHIP OF MINOR
INTEREST IN A FOREIGN CORPORATION BUT IT WOULD HARDLY HAVE BEEN THOUGHT
UNTIL TODAY THAT UEBERSEE LEFT OPEN THE FATE OF THE PROPERTY OF AN
ENEMY-DOMINATED CORPORATION, WHICH CORPORATION WAS PART OF A SCHEME, AS
SHOWN IN N. 2, "TO AVOID SEIZURE AND CONFISCATION IN THE EVENT OF
WAR."  (FN5)  CONGRESS HAD INDICATED ITS ATTITUDE QUITE CLEARLY.  (FN6)
TODAY'S RULING CUTS DEEPLY INTO THE CONGRESSIONAL PURPOSE TO HOLD THE
PROPERTY OF ENEMY-TAINTED FOREIGN CORPORATIONS FOR SATISFACTION OF WAR
CLAIMS. 

THE RESULT REACHED BY THE COURT IS BROUGHT ABOUT BY A DISREGARD OF THE
ORDINARY INCIDENTS OF THE RELATION OF A STOCKHOLDER TO A CORPORATION. 
A STOCKHOLDER HAS NO PRESENT INTEREST IN THE PHYSICAL PROPERTY OF AN
UNLIQUIDATED CORPORATION.  THE CORPORATION IS RESPONSIBLE FOR THE ACTS
OF THE CORPORATION.  (FN7)  THE STOCKHOLDER NORMALLY IS NOT.  BY HIS
CONTRIBUTION TO CAPITAL AND HIS PARTICIPATION IN PROFITS, HE PUTS HIS
INVESTMENT AT RISK, ACCORDING TO THE CONDUCT OF THE CORPORATION.  HE
MAY HAVE CLAIMS AGAINST MANAGEMENT BUT THOSE CLIAMS HAVE NOTHING TO DO
WITH CORPORATE ASSETS SUBJECT TO THE DEMANDS OF CREDITORS OR
GOVERNMENTS.  THOSE CORPORATE ASSETS GROW OR DIMINISH BECAUSE OF
CORPORATE, NOT SHAREHOLDER, CONDUCT.  (FN8)  SURELY, IF A CORPORATION
VIOLATED THE SHERMAN ACT, ITS ASSETS WOULD BE SUBJECT TO THE TRIPLE
DAMAGE CLAIMS OF WRONGED COMPETITORS, EVEN TO ITS LAST CENT AND TO THE
DETRIMENT OF STOCKHOLDERS WHO MAY HAVE PROTESTED VEHEMENTLY BUT
INEFFECTIVELY AGAINST THE ILLEGAL COURSE OF CONDUCT.  SURELY A
CORPORATE DEED OF THE CORPORATION'S "INTEREST, RIGHT, OR TITLE" TO A
PIECE OF PROPERTY WOULD NOT LEAVE IN A STOCKHOLDER ANY INTEREST ADVERSE
TO THE GRANTEE. 

THE COURT FINDS JUSTIFICATION FOR ALLOWING A STOCKHOLDER TO SUE IN
THE LANGUAGE OF SEC. 9; THE COURT SAYS THE HOLDING "IS BASED ON THE ACT
WHICH ENABLES ONE NOT AN ENEMY AS DEFINED IN SEC. 2 TO RECOVER ANY
INTEREST, RIGHT OR TITLE WHICH HE WAS IN THE PROPERTY VESTED."  NO
AUTHORITY IS CITED FOR THE PROPOSITION THAT A STOCKHOLDER HAS AN
"INTEREST," WITHIN THE MEANING OF THE ACT, IN THE PHYSICAL ASSETS OF
THE CORPORATION, SEPARATE FROM THE INTEREST OF THE CORPORATION. 
CORPORATIONS MAY RECOVER ON SHOWING THEIR NONENEMY CHARACTER, JUST AS
INDIVIDUALS MAY, BUT THE CORPORATE ENTITY SHOULD NOT BE DISREGARDED
WITHOUT SOME EVIDENCE OF SUCH CONGRESSIONAL INTENTION.  THE LANGUAGE OF
SEC. 9, "INTEREST  ... IN THE PROPERTY  ...  SEIZED," COULD NOT
NORMALLY BE TAKEN TO MEAN A STOCKHOLDER'S INTEREST IN THE
ADMINISTRATION AND PROFITS OF THE CORPORATION; (FN9) IN OUR OPINION IT
MEANS AN INTEREST IN THE ASSETS ACTUALLY SEIZED.  THERE IS NO
INDICATION THAT CONGRESS INTENDED THAT THE MERE VESTING OF THE
CORPORATE ASSETS BY THE ATTORNEY GENERAL SHOULD CONFER UPON EACH
STOCKHOLDER AN ENFORCEABLE INTEREST IN THOSE ASSETS. 

WHERE THE CORPORATION SUBJECTS ITS ASSETS TO FORFEITURE BY AIDING OUR
ENEMIES, THE CORPORATION SHOULD PAY THE PENALTY.  THE FRIENDLY
STOCKHOLDER SHOULD NOT BE PERMITTED BY STRAINED STATUTORY
INTERPRETATION TO WITHDRAW HIS CONTRIBUTION TO THE FUNDS THAT WERE USED
TO OUR INJURY AND SO REDUCE THE ASSETS AVAILABLE FOR WAR CLAIMANTS.  WE
SEE NO REAL DIFFERENCE, AS TO LIABILITY TO HAVE ASSETS VESTED UNDER THE
TRADING WITH THE ENEMY ACT, BETWEEN A CORPORATION ENEMY-DOMINATED AS
THIS IS ALLEGED TO BE AND AN ENEMY-DOMICILED CORPORATION PRODUCING
MUNITIONS OF WAR FOR USE AGAINST THE UNITED STATES.  THE COURT'S
OPINION REFERS ONLY TO ENEMY-DOMINATED NEUTRAL CORPORATIONS BUT THE
THEORY OF RECOVERY FOR FRIENDLY STOCKHOLDERS APPEARS TO BE EQUALLY
APPLICABLE TO FRIENDLY STOCKHOLDERS OF ENEMY CORPORATIONS. 

THE COURT OF APPEALS SHOULD BE AFFIRMED. 

FN1  50 U.S.C. APP. SEC. 2: 

"THE WORD 'ENEMY,' AS USED HEREIN, SHALL BE DEEMED TO MEAN, FOR THE
PURPOSES OF SUCH TRADING AND OF THIS ACT: 

"(A)  ANY INDIVIDUAL, PARTNERSHIP, OR OTHER BODY OF INDIVIDUALS, OF
ANY NATIONALITY, RESIDENT WITHIN THE TERRITORY (INCLUDING THAT OCCUPIED
BY THE MILITARY AND NAVAL FORCES) OF ANY NATION WITH WHICH THE UNITED
STATES IS AT WAR, OR RESIDENT OUTSIDE THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY, AND ANY CORPORATION INCORPORATED WITHIN
SUCH TERRITORY OF ANY NATION WITH WHICH THE UNITED STATES IS AT WAR OR
INCORPORATED WITHIN ANY COUNTRY OTHER THAN THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY." 

FN2  IT IS ALLEGED BY THE UNITED STATES THAT THE CONSPIRACY OF WHICH
THE RESPONDENT SOCIETE WAS A PART HAD FOR ITS OBJECTIVE "TO CONCEAL,
CAMOUFLAGE AND CLOAK THE OWNERSHIP, CONTROL, AND DOMINATION BY I.G.
FARBEN OF PROPERTIES AND INTERESTS IN MANY COUNTRIES OF THE WORLD,
INCLUDING THE UNITED STATES, OTHER THAN GERMANY.  AMONG THE VARIOUS
PURPOSES AND OBJECTIVES OF THE SAID CONSPIRACY WERE TO ASSIST I.G.
FARBEN: 

     *         *         *     *         * 

"(E)  TO CONCEAL, CAMOUFLAGE AND CLOAK THE OWNERSHIP, CONTROL AND
DOMINATION BY I.G.  FARBEN OF PROPERTIES AND INTERESTS LOCATED IN
COUNTRIES, INCLUDING THE UNITED STATES, OTHER THAN GERMANY, IN ORDER TO
AVOID SEIZURE AND CONFISCATION IN THE EVENT OF WAR BETWEEN SUCH
COUNTRIES AND GERMANY." 

THE SOCIETE ALLEGES THAT IT "IS THE OWNER OF 2,050,000 SHARES OF THE
COMMON B STOCK, AND 455,448 SHARES OF THE COMMON A STOCK, OF GENERAL
ANILINE & FILM CORPORATION, OF A VALUE IN EXCESS OF ONE HUNDRED MILLION
DOLLARS ($100,000,000)," NOW AT STAKE. 

FN3  HAMBURG-AMERICAN CO. V. UNITED STATES, 277 U.S. 138, 140. 

FN4  CLARK V. UEBERSEE FINANZ-KORPORATION, 332 U.S. 480, 483.  SEE
NOTE 3, P. 485, DESCRIBING THE MAZE OF CORPORATE SCHEMES FOR ENEMY
CONTROL OF WAR ECONOMY. 

FN5  332 U.S. AT 489-490: 

"IT IS SUGGESTED, HOWEVER, THAT THIS APPROACH MAY PRODUCE RESULTS
WHICH ARE BOTH ABSURD AND UNCERTAIN.  IT IS SAID THAT THE ENTIRE
PROPERTY OF A CORPORATION WOULD BE JEOPARDIZED MERELY BECAUSE A
NEGLIGIBLE STOCK INTEREST, PERHAPS A SINGLE SHARE, WAS DIRECTLY OR
INDIRECTLY OWNED OR CONTROLLED BY AN ENEMY OR ALLY OF AN ENEMY.  IT IS
ALSO POINTED OUT THAT SECURITIES OR INTERESTS OTHER THAN STOCK MIGHT BE
HELD BY AN ENEMY OR ALLY OF AN ENEMY AND USED EFFECTIVELY IN ECONOMIC
WARFARE AGAINST THIS COUNTRY.  BUT WHAT THESE INTERESTS ARE, THE EXTENT
OF HOLDINGS NECESSARY TO CONSTITUTE AN ENEMY TAINT, WHAT PART OF A
FRIENDLY ALIEN CORPORATION'S PROPERTY MAY BE RETAINED WHERE ONLY A
FRACTIONAL ENEMY OWNERSHIP APPEARS, ARE LEFT UNDECIDED.  SINCE WE
ASSUME FROM THE ALLEGATIONS OF THE COMPLAINT THAT RESPONDENT IS FREE OF
ENEMY TAINT AND THEREFORE IS NOT WITHIN THE DEFINITION OF ENEMY OR ALLY
OF AN ENEMY, THOSE PROBLEMS ARE NOT NOW BEFORE US.  WE RECOGNIZE THEIR
IMPORTANCE; BUT THEY MUST AWAIT LEGISLATIVE OR JUDICIAL
CLARIFICATION." 

FN6  50 U.S.C. APP. SEC. 32: 

"THE PRESIDENT, OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, MAY
RETURN ANY PROPERTY OR INTEREST VESTED IN OR TRANSFERRED TO THE ALIEN
PROPERTY CUSTODIAN  ...  WHENEVER THE PRESIDENT OR SUCH OFFICER OR
AGENCY SHALL DETERMINE: 

     *       *         *         *         * 

"(2)  THAT SUCH OWNER, AND LEGAL REPRESENTATIVE OR SUCCESSOR IN
INTEREST, IF ANY, ARE NOT: 

     *         *         *         *         * 

"(E)  A FOREIGN CORPORATION OR ASSOCIATION WHICH AT ANY TIME AFTER
DECEMBER 7, 1941, WAS CONTROLLED OR 50 PER CENTUM OR MORE OF THE STOCK
OF WHICH WAS OWNED BY ANY PERSON OR PERSONS INELIGIBLE TO RECEIVE A
RETURN UNDER SUBDIVISIONS (A), (B), (C), OR (D) HEREOF:  ...  ." 

(A), (B), (C) AND (D) REFER SUBSTANTIALLY TO NATIONAL, CORPORATE OR
INDIVIDUAL ENEMIES. 

FN7  COOK, CORPORATIONS (8TH ED.), VOL. I, SEC. 11; VOL. III, SECS.
663, 664. 

FN8  CHRISTOPHER V. BRUSSELBACK, 302 U.S. 500, 503: 

"A STOCKHOLDER IS SO FAR AN INTEGRAL PART OF THE CORPORATION OF WHICH
HE IS A MEMBER, THAT HE MAY BE BOUND AND HIS RIGHTS FORECLOSED BY
AUTHORIZED CORPORATE ACTION TAKEN WITHOUT HIS KNOWLEDGE OR
PARTICIPATION  ...  ." 

SEE PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S. 201, 207. 

ANDERSON V. ABBOTT, 321 U.S. 349, 361: 

"SOME SHAREHOLDERS OF BANCO CLAIM THE RIGHT TO RESCIND THEIR
PURCHASES OF ITS SHARES ON THE GROUND OF MISREPRESENTATIONS IN THE
SALE.  BUT WHETHER OR NOT SUCH RELIEF MIGHT BE GRANTED IN SOME
INSTANCES, IT SEEMS CLEAR THAT BANCO'S STOCKHOLDERS ARE BOUND BY THE
DECISIONS OF THE DIRECTORS WHICH DETERMINED, WITHIN THE SCOPE OF THE
CORPORATE CHARTER, THE KIND AND QUALITY OF THE CORPORATE UNDERTAKING." 

FN9  IN THE ANALOGOUS LAW OF PRIZE, IT IS SETTLED THAT THE NONENEMY
STOCKHOLDERS OF AN ENEMY CORPORATION HAVE NO RIGHT TO RECOVER ANY
PORTION OF SEIZED PROPERTY WHICH WAS OWNED BY THE CORPORATION.  THE
POLZEATH, (1916) P. 241, 256 (C.A.), AFFIRMING (1916) P. 117: "  ...
THE BRITISH SHAREHOLDERS ARE NOT ENTITLED TO INTERVENE.  IT IS
SUGGESTED THAT THE SHIP SHOULD BE APPRAISED, AND THAT PAYMENT SHOULD BE
MADE TO THE BRITISH SHAREHOLDERS IN PROPORTION TO THEIR HOLDINGS.  THE
COURT HAS NO SUCH POWER; IT CANNOT ADMINISTER THE AFFAIRS OF THE
COMPANY.  IF ANY HARDSHIP IS CAUSED TO INNOCENT SHAREHOLDERS BY THE
DECLARATION OF FORFEITURE THEIR POSITION IS THAT THEY CAN ONLY APPEAL
TO THE MERCIFUL CONSIDERATION OF THE CROWN." 

STEAMSHIP "MARIE GLAESER," 1 LLOYD'S PRIZE CASES 56, 111 (1914): 

"NOW, WITH REGARD TO THE SHAREHOLDERS IN THE VESSEL, IT IS QUITE
CLEAR THAT IF THEY ARE ENEMY SHAREHOLDERS THEIR PROPERTY MUST GO WITH
THE CAPTURE OF THE VESSEL IN WHICH THEY HAVE PUT THEIR MONEY - A VESSEL
SAILING UNDER THE FLAG OF THE ENEMY.  NOT ONLY IS THAT SO WITH REGARD
TO SHAREHOLDERS WHO MIGHT BE CITIZENS OF THE GERMAN EMPIRE, BUT IT IS
EQUALLY SO IF SOME OF THOSE SHAREHOLDERS HAPPEN TO BE, AS THEY MAY BE -
I DO NOT KNOW - PERSONS WHO ARE CITIZENS OF THIS COUNTRY.  IF A
SHAREHOLDER INVESTS HIS MONEY BY TAKING SHARES IN A VESSEL WHICH IS
LIABLE TO CAPTURE, HE TAKES THAT RISK. 

"IF IN THE CASE OF A BRITISH SHAREHOLDER HE LIKES TO PRESENT HIS CASE
TO THE CROWN AS ONE WHICH OUGHT TO BE LENIENTLY DEALT WITH, THAT IS
ANOTHER MATTER.  I HAVE NOTHING TO DO WITH THAT.  I AM HERE ONLY TO
ADMINISTER THE LAW, AND I MUST HOLD THAT NO SHAREHOLDERS HAVE ANY RIGHT
WHATSOEVER TO BE PROTECTED FROM THE RESULTS OF THE CAPTURE OF THIS
VESSEL." 

STANDARD OIL TANKERS CASE, ARBITRATION AWARD, AUG. 5, 1926, II
FOREIGN RELATIONS OF THE UNITED STATES (1926), P. 166.  CF. THE PEDRO,
175 U.S. 354, 367-368. 
..END :
























UNITED STATES V. SPECTOR 343 U.S. 169 


NO. 443.  ARGUED MARCH 6, 1952 - DECIDED APRIL 7, 1952 - 99 F. SUPP.
778, REVERSED. 


1.  SECTION 20(C) OF THE IMMIGRATION ACT OF 1917, AS AMENDED, 8 U.S.C.
SEC. 156(C), WHICH MAKES IT A FELONY FOR AN ALIEN AGAINST WHOM A
SPECIFIED ORDER OF DEPORTATION IS OUTSTANDING TO "WILLFULLY FAIL OR
REFUSE TO MAKE TIMELY APPLICATION IN GOOD FAITH FOR TRAVEL OR OTHER
DOCUMENTS NECESSARY TO HIS DEPARTURE" IS NOT, ON ITS FACE, VOID FOR
VAGUENESS.  PP. 170-172. 

2.  THE QUESTION WHETHER THE STATUTE IS UNCONSTITUTIONAL BECAUSE IT
AFFORDS A DEFENDANT NO OPPORTUNITY TO HAVE THE COURT WHICH TRIES HIM
PASS ON THE VALIDITY OF THE ORDER OF DEPORTATION IS RESERVED, BECAUSE
IT IS NOT PROPERLY BEFORE THE COURT IN THIS CASE.  PP. 172-173. 

UNITED STATES V. SPECTOR. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

THE DISTRICT COURT DISMISSED TWO COUNTS OF AN INDICTMENT AGAINST
RESPONDENT ON THE GROUND THAT SEC. 20(C) OF THE IMMIGRATION ACT OF
1917, AS AMENDED, 8 U.S.C. SEC. 156(C), ON WHICH THEY WERE BASED, WAS
VOID FOR VAGUENESS.  99 F. SUPP. 778.  ON APPEAL TO THIS COURT UNDER 18
U.S.C. SEC. 3731, REVERSED, P. 173. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

57 STAT. 553, 64 STAT. 1010, 8 U.S.C. (SUPP. IV) SEC. 156, CONTAINS
PROVISIONS DESIGNED TO EXPEDITE THE DEPORTATION OF ALIENS.  SECTION
20(A) PROVIDES THAT THE ATTORNEY GENERAL SHALL DIRECT THE DEPORTATION
"TO THE COUNTRY SPECIFIED BY THE ALIEN, IF IT IS WILLING TO ACCEPT HIM
INTO ITS TERRITORY."  OTHERWISE THE ATTORNEY GENERAL SHALL DIRECT THE
DEPORTATION TO ANY ONE OF A SERIES OF SPECIFIED COUNTRIES OR IF
DEPORTATION TO ANY OF THEM IS IMPRACTICABLE, INADVISABLE, OR
IMPOSSIBLE, THEN TO ANY COUNTRY WHICH IS WILLING TO ACCEPT THE ALIEN. 
ALIENS AGAINST WHOM DEPORTATION ORDERS HAVE BEEN OUTSTANDING FOR MORE
THAN SIX MONTHS AND FIXES PENALTIES FOR VIOLATIONS OF THE REGULATIONS
WHICH THE ATTORNEY GENERAL HAS PRESCRIBED.  SECTION 20(C) PROVIDES THAT
ANY ALIEN AGAINST WHOM A SPECIFIED ORDER OF DEPORTATION IS OUTSTANDING
"WHO SHALL WILLFULLY FAIL OR REFUSE TO DEPART FROM THE UNITED STATES
WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF SUCH ORDER OF
DEPORTATION, OR FROM THE DATE OF THE ENACTMENT OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT OF 1950, WHICHEVER IS THE LATER, OR SHALL
WILLFULLY FAIL OR REFUSE TO MAKE TIMELY APPLICATION IN GOOD FAITH FOR
TRAVEL OR OTHER DOCUMENTS NECESSARY TO HIS DEPARTURE,  ...  SHALL UPON
CONVICTION BE GUILTY OF A FELONY, AND SHALL BE IMPRISONED NOT MORE THAN
TEN YEARS  ...  ." 

THE LATTER PROVISION OF SEC. 20(C) IS INVOLVED HERE.  APPELLEE IS AN
ALIEN WHO CAME TO THIS COUNTRY FROM RUSSIA IN 1913.  AN ORDER OF
DEPORTATION WAS ENTERED AGAINST HIM IN 1930 BY REASON OF HIS ADVOCACY
OF THE OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE.  AN
INDICTMENT WAS RETURNED AGAINST HIM, TWO COUNTS OF WHICH CHARGED HIM
WITH WILLFULLY FAILING AND REFUSING TO MAKE TIMELY APPLICATION IN GOOD
FAITH FOR TRAVEL OR OTHER DOCUMENTS NECESSARY TO HIS DEPARTURE FROM THE
UNITED STATES.  THE DISTRICT COURT SUSTAINED A MOTION TO DISMISS THESE
TWO COUNTS.  IT HELD THAT THE STATUTE IN QUESTION WAS
UNCONSTITUTIONALLY VAGUE AND INDEFINITE, BECAUSE IT DID NOT SPECIFY THE
NATURE OF THE TRAVEL DOCUMENTS NECESSARY FOR DEPARTURE NOR INDICATE TO
WHICH COUNTRY OR TO HOW MANY COUNTRIES THE ALIEN SHOULD MAKE
APPLICATION.  99 F. SUPP. 778.  THE CASE IS HERE ON APPEAL.  18 U.S.C.
(SUPP. IV) SEC. 3731. 

WHILE A STATUTE, PLAIN AN UNAMBIGUOUS ON ITS FACE, MAY BE GIVEN AN
APPLICATION THAT VIOLATES DUE PROCESS OF LAW, WE ARE NOT CONCERNED WITH
THAT PROBLEM IN THE PRESENT CASE.  THE QUESTION HERE IS WHETHER THE
STATUTE ON ITS FACE MEETS THE CONSTITUTIONAL TEST OF CERTAINTY AND
DEFINITENESS.  WE THINK IT DOES WHEN VIEWED IN ITS STATUTORY SETTING. 

THE STATUTORY SCHEME SEEMS CLEAR AND UNAMBIGUOUS.  THE CHOICE OF A
COUNTRY WILLING TO RECEIVE THE ALIEN IS LEFT FIRST TO THE ALIEN HIMSELF
AND THEN TO THE ATTORNEY GENERAL.  ONCE THE COUNTRY WILLING TO RECEIVE
THE ALIEN IS IDENTIFIED, THE MECHANISM FOR EFFECTING HIS DEPARTURE
REMAINS.  THE SIX-MONTH PERIOD SPECIFIED IN SEC. 20(C) MAKES CLEAR WHAT
A "TIMELY" APPLICATION IS.  THE STATUTORY WORDS "TRAVEL OR OTHER
DOCUMENTS NECESSARY TO HIS DEPARTURE" WILL, OF COURSE, HAVE DIFFERENT
MEANINGS IN REFERENCE TO VARIOUS COUNTRIES.  THE FORMS TO BE FILLED
OUT, THE DEPOSITS TO BE MADE, THE NUMBER OF PHOTOGRAPHS TO BE
FURNISHED, AND THE INFORMATION TO BE SUPPLIED WILL VARY FROM COUNTRY TO
COUNTRY.  BUT WHEN THE COUNTRY TO WHICH THE ALIEN IS TO BE DEPORTED IS
KNOWN, ANY MYSTERY CONCERNING THE DOCUMENTS NECESSARY TO HIS DEPARTURE
VANISHES.  THE WORDS "NECESSARY TO HIS DEPARTURE" WHEN APPLIED TO
DEPORTATIONS WOULD NORMALLY REFER TO A LAWFUL DEPARTURE FROM THIS
COUNTRY AND A LAWFUL ENTRANCE INTO ANOTHER.  THE ALIEN SATISFIES THE
STATUTE BY MAKING TIMELY APPLICATION FOR SUCH DOCUMENTS AS THE COUNTRY
IN QUESTION REQUIRES FOR HIS ADMISSION. 

THE STATUTE MIGHT WELL BE A TRAP IF, FOR EXAMPLE, IT REQUIRED THE
ALIEN TO KNOW THE VISA REQUIREMENTS OF ONE OR MORE COUNTRIES.  BUT THE
EMPHASIS OF THE PRESENT STATUTE IS ON A "TIMELY APPLICATION IN GOOD
FAITH" FOR SUCH DOCUMENTS AS THE COUNTRY IN QUESTION MAY REQUIRE. 
THOUGH THE VISA REQUIREMENTS FOR ENTRANCE INTO A PARTICULAR COUNTRY ARE
IN CONSTANT CHANGE, THE COMMAND OF THE STATUTE REMAINS SIMPLE AND
INTELLIGIBLE.  WE CONCLUDE THAT THE WARNING CONTAINED IN THE STATUTE IS
SUFFICIENTLY DEFINITE TO FREE IT OF ANY CONSTITUTIONAL INFIRMITY OF
VAGUENESS.  CF. UNITED STATES V. PETRILLO, 332 U.S. 1; JORDAN V.
DEGEORGE, 341 U.S. 223. 

ANOTHER QUESTION OF CONSTITUTIONAL LAW IS PRESSED UPON US.  IT IS
THAT THE STATUTE MUST BE DECLARED UNCONSTITUTIONAL BECAUSE IT AFFORDS A
DEFENDANT NO OPPORTUNITY TO HAVE THE COURT WHICH TRIES HIM PASS ON THE
VALIDITY OF THE ORDER OF DEPORTATION.  THAT QUESTION WAS NEITHER RAISED
BY THE APPELLEE NOR BRIEFED NOR ARGUED HERE.  IF IT HAD BEEN, WE MIGHT
CONSIDER IT.  SEE UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304,
330.  BUT WHEN A SINGLE, NAKED QUESTION OF CONSTITUTIONALITY IS
PRESENTED, WE DO NOT SEARCH FOR NEW AND DIFFERENT CONSTITUTIONAL
QUESTIONS.  RATHER WE REFRAIN FROM PASSING ON THE CONSTITUTIONALITY OF
A PHASE OF A STATUTE UNTIL A STAGE HAS BEEN REACHED WHERE THE DECISION
OF THE PRECISE CONSTITUTIONAL ISSUE IS NECESSARY.  SEE UNITED STATES V.
PETRILLO, SUPRA. 

IT WILL BE TIME TO CONSIDER WHETHER THE VALIDITY OF THE ORDER OF
DEPORTATION MAY BE TRIED IN A CRIMINAL TRIAL EITHER BY THE COURT OR BY
THE JURY (CF. YAKUS V. UNITED STATES, 321 U.S. 414; COX V. UNITED
STATES, 332 U.S. 442) WHEN AND IF THE APPELLEE SEEKS TO HAVE IT TRIED. 
THAT QUESTION IS NOT FORECLOSED BY THIS OPINION.  WE RESERVE DECISION
ON IT.  REVERSED. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

THE ONLY THING CERTAIN ABOUT SEC. 20(C) OF THE IMMIGRATION ACT OF
1917, AS AMENDED, IS THAT VIOLATION OF ITS TERMS IS A FELONY PUNISHABLE
BY TEN YEARS' IMPRISONMENT.  AN ALIEN ORDERED DEPORTED BY THE BUREAU OF
IMMIGRATION IS SUBJECT TO THIS TEN-YEAR PENALTY IF HE "WILLFULLY FAIL
OR REFUSE TO MAKE TIMELY APPLICATION IN GOOD FAITH FOR TRAVEL OR OTHER
DOCUMENTS NECESSARY TO HIS DEPARTURE."  TO AVOID PUNISHMENT AN ALIEN
MUST GUESS WITH UNERRING ACCURACY WHAT ANSWERS A JUDGE OR JURY (FN1)
MIGHT SOMEDAY GIVE TO THE FOLLOWING QUESTIONS:  (1) WHEN IS AN
APPLICATION "TIMELY"?  (2) WHAT CONSTITUTES A "GOOD FAITH"
APPLICATION?  (3) WHAT KIND OF "DOCUMENTS" ARE "NECESSARY TO HIS
DEPARTURE"?  (4) TO WHOM MUST HE APPLY FOR THESE DOCUMENTS? 

ALIENS LIVING IN THIS COUNTRY ARE NOT NECESSARILY SOPHISTICATED WORLD
TRAVELERS FAMILIAR WITH THE PRESENT-DAY RED TAPE THAT MUST BE UNWOUND
TO GET FROM ONE COUNTRY TO ANOTHER.  CONGRESS SHOULD AT LEAST INDICATE
WHEN, TO WHOM, AND FOR WHAT THE ALIEN SHOULD APPLY.  IF, FOR EXAMPLE,
THE STATUTE MERELY REQUIRED AN ALIEN TO REPORT AT A CERTAIN TIME AND
PLACE TO SIGN "DOCUMENTS" COLLECTED BY THE AMERICAN DEPARTMENT OF
STATE, THE AFFIRMATIVE CONDUCT DEMANDED WOULD AT LEAST BE CLEAR AND
SPECIFIC.   BUT THE PRESENT STATUTE, IN MY JUDGMENT, ENTANGLES ALIENS
IN A SNARE OF VAGUENESS FROM WHICH FEW CAN ESCAPE.  I THINK THE
CONSTITUTION REQUIRES MORE THAN A "BAD" GUESS TO MAKE A CRIMINAL. 
(FN2) 

FN1  "IN EARLIER TIMES, SOME RULERS PLACED THEIR CRIMINAL LAWS WHERE
THE COMMON MAN COULD NOT SEE THEM, IN ORDER THAT HE MIGHT BE ENTRAPPED
INTO THEIR VIOLATION.  OTHERS IMPOSED STANDARDS OF CONDUCT IMPOSSIBLE
OF ACHIEVEMENT TO THE END THAT THOSE OBNOXIOUS TO THE RULING POWERS
MIGHT BE CONVICTED UNDER THE FORMS OF LAW.  NO ONE OF THEM EVER
PROVIDED A MORE CERTAIN ENTRAPMENT, THAN A STATUTE WHICH PRESCRIBES A
PENITENTIARY PUNISHMENT FOR NOTHING MORE THAN A LAYMAN'S FAILURE TO
PROPHESY WHAT A JUDGE OR JURY WILL DO  ...  ."  WILLIAMS V. NORTH
CAROLINA, 325 U.S. 226, 278 (DISSENTING OPINION).   CF. UNITED STATES
V. COHEN GROCERY CO., 255 U.S. 81, 89. 

FN2  MY BELIEF THAT THE STATUTE IS VOID FOR VAGUENESS MAKES IT
UNNECESSARY FOR ME TO REACH THE CONSTITUTIONAL QUESTION DISCUSSED BY
MR. JUSTICE JACKSON, ALTHOUGH I HAVE NOT YET SEEN A SATISFACTORY REASON
FOR REJECTING HIS VIEW.  SEE MY OPINION IN MAGGIO V. ZEITZ, 333 U.S.
56, 78-81. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
DISSENTING. 

I THINK THIS ACT TO PUNISH AN ALIEN'S UNLAWFUL PRESENCE IN THE UNITED
STATES IS UNCONSTITUTIONAL FOR REASONS APPARENT ON ITS FACE.  (FN1)  IT
DIFFERS IN SUBTLETY BUT NOT IN SUBSTANCE FROM ONE HELD UNCONSTITUTIONAL
MORE THAN HALF A CENTURY AGO IN A DECISION REPEATEDLY AND RECENTLY
CITED WITH APPROVAL.  WONG WING V. UNITED STATES, 163 U.S. 228.  (FN2)
THE ACT THERE STRICKEN DOWN WAS SIMPLE AND DIRECT.  IT PROVIDED THAT
ANY CHINESE PERSON OR PERSON OF CHINESE DESCENT ADJUDGED BY ANY
JUSTICE, JUDGE OR COMMISSIONER OF THE UNITED STATES NOT LAWFULLY
ENTITLED TO BE OR TO REMAIN IN THE UNITED STATES SHOULD FIRST BE
IMPRISONED AT HARD LABOR AND THEREAFTER REMOVED FROM THE UNITED
STATES.  THE COURT CONCEDED THAT IT WOULD BE COMPETENT FOR CONGRESS TO
DECLARE THAT AN ALIEN REMAINING UNLAWFULLY IN THE UNITED STATES COULD
BE CRIMINALLY PUNISHED "IF SUCH OFFENCE WERE TO BE ESTABLISHED BY A
JUDICIAL TRIAL."  163 U.S. AT 235.  HOWEVER, IT SAID: 

"BUT WHEN CONGRESS SEES FIT TO FURTHER PROMOTE SUCH A POLICY BY
SUBJECTING THE PERSONS OF SUCH ALIENS TO INFAMOUS PUNISHMENT AT HARD
LABOR, OR BY CONFISCATING THEIR PROPERTY, WE THINK SUCH LEGISLATION, TO
BE VALID, MUST PROVIDE FOR A JUDICIAL TRIAL TO ESTABLISH THE GUILT OF
THE ACCUSED. 

"NO LIMITS CAN BE PUT BY THE COURTS UPON THE POWER OF CONGRESS TO
PROTECT, BY SUMMARY METHODS, THE COUNTRY FROM THE ADVENT OF ALIENS
WHOSE RACE OR HABITS RENDER THEM UNDESIRABLE AS CITIZENS, OR TO EXPEL
SUCH IF THEY HAVE ALREADY FOUND THEIR WAY INTO OUR LAND AND UNLAWFULLY
REMAIN THEREIN.  BUT TO DECLARE UNLAWFUL RESIDENCE WITHIN THE COUNTRY
TO BE AN INFAMOUS CRIME, PUNISHABLE BY DEPRIVATION OF LIBERTY AND
PROPERTY, WOULD BE TO PASS OUT OF THE SPHERE OF CONSTITUTIONAL
LEGISLATION, UNLESS PROVISION WERE MADE THAT THE FACT OF GUILT SHOULD
FIRST BE ESTABLISHED BY A JUDICIAL TRIAL.  IT IS NOT CONSISTENT WITH
THE THEORY OF OUR GOVERNMENT THAT THE LEGISLATURE SHOULD, AFTER HAVING
DEFINED AN OFFENCE AS AN INFAMOUS CRIME, FIND THE FACT OF GUILT AND
ADJUDGE THE PUNISHMENT BY ONE OF ITS OWN AGENTS."  163 U.S. AT 237. 
(FN3) 

THUS THE COURT HELD THAT THE CONSTITUTION PROHIBITED FOR CRIMINAL
PURPOSES A JUDICIAL DETERMINATION WITHOUT A JURY THAT THE ALIEN WAS
ILLEGALLY PRESENT IN THE UNITED STATES.  IT HELD THAT THE FACTS WHICH
MADE HIS PRESENCE ILLEGAL MUST BE ESTABLISHED TO THE SATISFACTION OF A
JURY, ALTHOUGH THE ACTUAL CASE BEFORE IT SEEMS TO HAVE PRESENTED ONLY
THE NARROWEST AND SIMPLEST ISSUES, NAMELY, WHETHER THE ALIEN WAS A
CHINAMAN AND WHETHER HE WAS HERE.  IF SO, HIS ENTRY AND HIS PRESENCE AT
ANY TIME WERE ILLEGAL.  IN CONTRAST, THIS ACT INCRIMINATES THOSE WHOSE
PRESENCE HERE IS ENTIRELY LEGAL BUT FOR GUILT OF SOME FORBIDDEN CONDUCT
SINCE ENTRY.  CERTAINLY ILLEGAL PRESENCE UNDER PRESENT LAWS INVOLVES A
MORE TRIALWORTHY ISSUE THAN IN WONG WING'S CASE. 

THIS ACT CREATES A CRIME ALSO BASED ON UNLAWFUL RESIDENCE IN THE
UNITED STATES.  THE CRIME CONSISTS OF TWO ELEMENTS:  ONE, AN
OUTSTANDING ORDER FOR DEPORTATION OF AN ALIEN; THE OTHER, THE ALIEN'S
WILLFUL FAILURE TO LEAVE THE COUNTRY OR TAKE SPECIFIED STEPS TOWARD
DEPARTURE.  THE ACT DOES NOT PERMIT THE COURT WHICH TRIES HIM FOR THIS
CRIME TO PASS ON THE ILLEGALITY OF HIS PRESENCE.  PRODUCTION OF AN
OUTSTANDING ADMINISTRATIVE ORDER FOR HIS DEPORTATION BECOMES CONCLUSIVE
EVIDENCE OF HIS UNLAWFUL PRESENCE AND A CONSEQUENT DUTY TO TAKE HIMSELF
OUT OF THE COUNTRY, AND NO INQUIRY INTO THE CORRECTNESS OR VALIDITY OF
THE ORDER IS PERMITTED. 

THE SUBTLETY OF THE PRESENT ACT CONSISTS OF SEVERING THE ISSUE OF
UNLAWFUL PRESENCE FOR ADMINISTRATIVE DETERMINATION WHICH THEN BECOMES
CONCLUSIVE UPON THE CRIMINAL TRIAL COURT.  WE MUST NOT FORGET THAT,
WHILE THE ALIEN IS NOT CONSTITUTIONALLY PROTECTED AGAINST DEPORTATION
BY ADMINISTRATIVE PROCESS, HE STANDS ON AN EQUAL CONSTITUTIONAL FOOTING
WITH THE CITIZEN WHEN HE IS CHARGED WITH CRIME.  (FN4)  IF CONGRESS CAN
SUBDIVIDE A CHARGE AGAINST AN ALIEN AND AVOID JURY TRIAL BY SUBMITTING
THE VITAL AND CONTROVERSIAL PART OF IT TO ADMINISTRATIVE DECISION, IT
CAN DO SO IN THE PROSECUTION OF A CITIZEN.  AND IF VITAL ELEMENTS OF A
CRIME CAN BE ESTABLISHED IN THE MANNER HERE ATTEMPTED, THE WAY WOULD BE
OPEN TO EFFECTIVE SUBVERSION OF WHAT WE HAVE THOUGHT TO BE ONE OF THE
MOST EFFECTIVE CONSTITUTIONAL SAFEGUARDS OF ALL MEN'S FREEDOM. 

ADMINISTRATIVE DETERMINATIONS OF LIABILITY TO DEPORTATION HAVE BEEN
SUSTAINED AS CONSTITUTIONAL ONLY BY CONSIDERING THEM TO BE EXCLUSIVELY
CIVIL IN NATURE, WITH NO CRIMINAL CONSEQUENCES OR CONNOTATIONS.  THAT
DOCTRINE, EARLY ADOPTED AGAINST SHARP DISSENT HAS BEEN ADHERED TO WITH
INCREASING LOGICAL DIFFICULTY AS NEW CAUSES FOR DEPORTATION, BASED NOT
ON ILLEGAL ENTRY BUT ON CONDUCT AFTER ADMITTANCE, HAVE BEEN ADDED, AND
THE PERIOD WITHIN WHICH DEPORTATION PROCEEDINGS MAY BE INSTITUTED HAS
BEEN EXTENDED.  (FN5)  BY THIS ACT A DEPORTATION ORDER IS MADE TO CARRY
POTENTIAL CRIMINAL CONSEQUENCES.    IF THE ADMINISTRATIVE ADJUDICATION
THAT ONE IS LIABLE TO DEPORTATION AND THE RESULTING ORDERS ARE NOT
EXHAUSTED WHEN THEY HAVE SERVED AS WARRANT FOR THE ADJUDICATIONS OF HIS
UNLAWFUL PRESENCE FOR THE PURPOSE OF HIS CRIMINAL PROSECUTION, QUITE
DIFFERENT PRINCIPLES COME INTO PLAY. 

THE ADJUDICATION THAT AN ALIEN HAS BEEN GUILTY OF CONDUCT SUBJECTING
HIM TO DEPORTATION IS NOT MADE BY PROCEDURES CONSTITUTIONAL FOR
JUDGMENT OF CRIME.  IT IS NOT MADE EITHER BY A JURY TRIAL OR A COURT
DECISION.  ALL THAT IS REQUIRED BY STATUTE IS A HEARING BEFORE AN
ADMINISTRATIVE OFFICER AND THAT MAY BE BEFORE ONE WHO ACTS BOTH AS THE
ALIEN'S JUDGE AND PROSECUTOR.  (FN6)  THE FINDING THAT THE ALIEN IS
GUILTY OF CONDUCT SUBJECTING HIM TO DEPORTATION DOES NOT REQUIRE PROOF
BEYOND REASONABLE DOUBT BUT MAY BE MADE ON MERE PREPONDERANCE OF
EVIDENCE.  IF THE DETERMINATION OF DEPORTABILITY IS SUBJECT TO REVIEW
UNDER SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 243, 5
U.S.C. SEC. 1009, A QUESTION EXPRESSLY RESERVED IN MCGRATH V.
KRISTENSEN, 340 U.S. 162, 169, AND NOT DECIDED HERE, ANY EVIDENTIARY
ATTACK RAISES ONLY THE QUESTION WHETHER ON THE RECORD AS A WHOLE THERE
IS SUBSTANTIAL EVIDENCE IN SUPPORT OF THE ORDER.  UNIVERSAL CAMERA
CORP. V. LABOR BOARD, 340 U.S. 474.  NO STATUTE OF LIMITATIONS APPLIES
IN SOME CASES AND THE OFFENSE WHICH RENDERS THE ALIEN DEPORTABLE MAY
HAVE OCCURRED, BUT CEASED, MANY YEARS AGO, (FN7) WHILE UNDER STATUTES
APPLICABLE TO CRIMES, THE SAME ACT, IF A CRIME, LONG WOULD HAVE CEASED
TO BE SUBJECT TO PROSECUTION. 

HAVING THUS DISPENSED WITH IMPORTANT CONSTITUTIONAL SAFEGUARDS IN
OBTAINING AN ADMINISTRATIVE ADJUDICATION THAT THE ALIEN IS GUILTY OF
CONDUCT MAKING HIM DEPORTABLE ON THE GROUND IT IS ONLY A CIVIL
PROCEEDING, THE GOVERNMENT SEEKS TO TURN AROUND AND USE THE RESULT AS A
CONCLUSIVE DETERMINATION OF THAT FACT IN A CRIMINAL PROCEEDING.  WE
THINK IT CANNOT MAKE THAT USE OF SUCH AN ORDER. 

IT MUST BE REMEMBERED THAT THE DEPORTATION PROCEEDING IS AN EXERCISE
OF ADJUDICATIVE, NOT RULE-MAKING, POWER.  THE ISSUE ON WHICH EVIDENCE
IS HEARD IS WHETHER THE ALIEN HAS COMMITTED ACTS WHICH ARE GROUNDS FOR
DEPORTATION.  THE DECISION IS WHETHER HE IS GUILTY OF SUCH PAST
CONDUCT, AND, IF SO, THE LEGAL RESULT IS LIABILITY TO DEPORTATION. 
THIS IS NOT THE TYPE OF ADMINISTRATIVE PROCEEDING WHICH RESULTS IN A
RULE OR ORDER PRESCRIBING RATES OR OTHERWISE GUIDING FUTURE CONDUCT. 

EXPERIENCE IN THE EXECUTIVE DEPARTMENT WITH THE IMMIGRATION LAWS MADE
ME AWARE OF A SERIOUS WEAKNESS IN THE DEPORTATION PROGRAM WHICH
CONGRESS BY THIS ACT WAS TRYING TO OVERCOME.  A DEPORTATION POLICY CAN
BE SUCCESSFUL ONLY TO THE EXTENT THAT SOME OTHER STATE IS WILLING TO
RECEIVE THOSE WE EXPEL.  BUT, EXCEPT SELECTED INDIVIDUALS WHO CAN DO US
MORE HARM ABROAD THAN HERE, WHAT COMMUNIST POWER WILL COOPERATE WITH
OUR DEPORTATION POLICY BY RECEIVING OUR EXPELLED COMMUNIST ALIENS?  AND
WHAT NON-COMMUNIST POWER FEELS SUCH CONFIDENCE IN ITS OWN DOMESTIC
SECURITY THAT IT CAN RISK TAKING IN PERSONS THIS STABLE AND POWERFUL
REPUBLIC FINDS DANGEROUS TO ITS SECURITY?  WORLD CONDITIONS SEEM TO
FRUSTRATE THE POLICY OF DEPORTATION OF SUBVERSIVES.  ONCE THEY GAIN
ADMISSION HERE, THEY ARE OUR PROBLEM AND ONE THAT CANNOT BE SHIPPED OFF
TO SOME OTHER PART OF THE WORLD. 

WHILE WE WOULD NOT JOIN IN A STRAINED CONSTRUCTION OF THE
CONSTITUTION TO CREATE CAPTIOUS OR TRIVIAL OBSTACLES OR DELAYS TO
SOLUTION OF THIS PROBLEM, WE CANNOT SANCTION SENDING ALIENS TO PRISON
EXCEPT UPON COMPLIANCE WITH CONSTITUTIONAL PROCEDURES.  WE CAN AFFORD
NO LIBERTIES WITH LIBERTY ITSELF. 

THE COURT INTIMATES THAT IT MIGHT BE COMPELLED TO AGREE WITH THIS
CONSTITUTIONAL OBJECTION TO THE STATUTE WERE THE REASONING ADVANCED BY
COUNSEL.  I ABSTAIN FROM COMMENT ON THIS NEW SQUEAMISHNESS WHEREBY THE
COURT IMPRISONS ITSELF WITHIN COUNSEL'S ARGUMENT.  CF. TERMINIELLO V.
CHICAGO, 337 U.S. 1.  IT IS OUR DUTY BEFORE REVERSING A JUDGMENT TO
EXAMINE ANY GROUND UPON WHICH IT CAN BE SUSTAINED, EVEN A GROUND WHICH
THE COURT BELOW MAY HAVE OVERLOOKED OR EXPRESSLY REJECTED.  SEE LANGNES
V. GREEN, 282 U.S. 531, AND WATTS, WATTS & CO. V. UNIONE AUSTRIACA, 248
U.S. 9, 21.  BUT THIS COURT IS REVERSING THE LOWER COURT WHICH HELD
THIS STATUTE UNCONSTITUTIONAL AND IS SENDING THE ACT FORTH LIMPING WITH
A POTENTIAL INFIRMITY, BECAUSE THE COURT HAS BECOME TOO SHY TO TAKE UP
A POINT NOT SPONSORED BY COUNSEL, THOUGH, IF WELL TAKEN, IT WOULD
SUPPORT THE JUDGMENT HERE BEING OVERTURNED.  THE LEAST THAT COULD BE
DONE WOULD BE TO ORDER THE CASE REARGUED. 

FN1  "THE PERTINENT PORTION OF SEC. 20(C) OF THE IMMIGRATION ACT OF
1917 (AS REWRITTEN IN SEC. 23 OF THE INTERNAL SECURITY ACT OF 1950, 64
STAT. 1010, 8 U.S. C. (SUPP. IV) SEC. 156(C) READS AS FOLLOWS: 

"ANY ALIEN AGAINST WHOM AN ORDER OF DEPORTATION IS OUTSTANDING UNDER
VARIOUS NAMED STATUTES  ... WHO SHALL WILLFULLY FAIL OR REFUSE TO
DEPART FROM THE UNITED STATES WITHIN A PERIOD OF SIX MONTHS FROM THE
DATE OF SUCH ORDER OF DEPORTATION, OR FROM SEPTEMBER 23, 1950,
WHICHEVER IS THE LATER, OR SHALL WILLFULLY FAIL OR REFUSE TO MAKE
TIMELY APPLICATION IN GOOD FAITH FOR TRAVEL OR OTHER DOCUMENTS
NECESSARY TO HIS DEPARTURE  ...  SHALL UPON CONVICTION BE GUILTY OF A
FELONY, AND SHALL BE IMPRISONED NOT MORE THAN TEN YEARS  ...  ." 

FN2  HARISIADES V. SHAUGHNESSY, 342 U.S. 580, 586; LI SING V. UNITED
STATES, 180 U.S. 486, 495; DOWNES V. BIDWELL, 182 U.S. 244, 283;
RUSSIAN VOLUNTEER FLEET V. UNITED STATES, 282 U.S. 481, 489. 

FN3  IN LI SING V. UNITED STATES, SUPRA, AT 494-495, THE COURT QUOTED
FONG YUE TING V. UNITED STATES, 149 U.S. 698, 730, AS FOLLOWS: 

"AN ORDER OF DEPORTATION IS NOT A PUNISHMENT FOR CRIME.  IT IS NOT A
BANISHMENT, IN THE SENSE IN WHICH THAT WORD IS OFTEN APPLIED TO THE
EXPULSION OF A CITIZEN FROM HIS COUNTRY BY WAY OF PUNISHMENT.  IT IS
BUT A METHOD OF ENFORCING THE RETURN TO HIS OWN COUNTRY OF AN ALIEN WHO
HAS NOT COMPLIED WITH THE CONDITIONS UPON THE PERFORMANCE OF WHICH THE
GOVERNMENT OF THE NATION, ACTING WITHIN ITS CONSTITUTIONAL AUTHORITY,
AND THROUGH THE PROPER DEPARTMENTS, HAS DETERMINED THAT HIS CONTINUING
TO RESIDE HERE SHALL DEPEND.  HE HAS NOT, THEREFORE, BEEN DEPRIVED OF
LIFE, LIBERTY OR PROPERTY, WITHOUT DUE PROCESS OF LAW; AND THE
PROVISIONS OF THE CONSTITUTION, SECURING THE RIGHT OF TRIAL BY JURY,
AND PROHIBITING UNREASONABLE SEARCHES AND SEIZURES, AND CRUEL AND
UNUSUAL PUNISHMENTS, HAVE NO APPLICATION. 

THE LI SING COURT THEN WENT ON, HOWEVER, TO SAY THAT: 

"IT MAY BE PROPER HERE TO MENTION THAT THIS COURT HAS HELD THAT,
WHILE THE UNITED STATES CAN FORBID ALIENS FROM COMING WITHIN THEIR
BORDERS, AND EXPEL THEM FROM THE COUNTRY, AND CAN DEVOLVE THE POWER AND
DUTY OF IDENTIFYING AND ARRESTING SUCH PERSONS UPON EXECUTIVE OR
SUBORDINATE OFFICIALS, YET, WHEN CONGRESS SEES FIT TO FURTHER PROMOTE
SUCH A POLICY BY SUBJECTING THE PERSONS OF SUCH ALIENS TO INFAMOUS
PUNISHMENT AT HARD LABOR, OR BY CONFISCATING THEIR PROPERTY, SUCH
LEGISLATION, TO BE VALID, MUST PROVIDE FOR A JUDICIAL TRIAL TO
ESTABLISH THE GUILT OF THE ACCUSED.  WONG WING V. UNITED STATES, 163
U.S. 228." 

THAT COURT THEREBY MADE IT CLEAR THAT THERE IS A GREAT DISTINCTION
BETWEEN DEPORTATION ITSELF AND A DEPORTATION ORDER THAT MAY BE MADE THE
BASIS OF SUBSEQUENT CRIMINAL PUNISHMENT.  IT IS THAT DISTINCTION WHICH
WE PRESS FOR HERE.  SEE FRAENKEL, CAN THE ADMINISTRATIVE PROCESS EVADE
THE SIXTH AMENDMENT?  1 SYRACUSE L. REV. 173. 

FN4  HARISIADES V. SHAUGHNESSY, SUPRA, AT 586. 

FN5  HARISIADES V. SHAUGHNESSY, SUPRA, AT 587. 

FN6  WONG YANG SUNG V. MCGRATH, 339 U.S. 33, HOLDING THAT THE
ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, 5 U.S.C. SEC. 1001 ET SEQ.,
REQUIRED SEPARATION OF JUDGING AND PROSECUTING FUNCTIONS, WAS
SUBSEQUENTLY SET ASIDE BY CONGRESS WHICH SPECIFICALLY EXEMPTED
DEPORTATION PROCEEDINGS FROM 5 U.S.C. SECS. 1004, 1006, AND 1007.  64
STAT. 1048, 8 U.S.C. (SUPP. IV) SEC. 155A. 

FN7  HARISIADES V. SHAUGHNESSY, SUPRA.
..END :












STROBLE V. CALIFORNIA 343 U.S. 181 


NO. 373.  ARGUED MARCH 6, 1952 - DECIDED APRIL 7, 1952 - 36 CAL. 2D 615,
226 P.2D 330, AFFIRMED. 


PETITIONER'S CONVICTION OF FIRST DEGREE MURDER WAS AFFIRMED BY THE
SUPREME COURT OF CALIFORNIA.  PETITIONER HERE CHALLENGED THE VALIDITY
OF HIS CONVICTION UNDER THE FOURTEENTH AMENDMENT, ON THE GROUNDS (1)
THAT IT WAS BASED IN PART ON A COERCED CONFESSION; (2) THAT A FAIR
TRIAL WAS IMPOSSIBLE BECAUSE OF INFLAMMATORY NEWSPAPER REPORTS INSPIRED
BY THE DISTRICT ATTORNEY; AND (3) THAT HE WAS IN EFFECT DEPRIVED OF
COUNSEL IN THE COURSE OF HIS SANITY HEARING.  HE URGED THAT EACH OF
THESE GROUNDS INDEPENDENTLY WAS A DENIAL OF DUE PROCESS; AND THAT THE
COMBINATION OF THEM WITH OTHER CIRCUMSTANCES DENIED DUE PROCESS.  HELD:
THE JUDGMENT OF CONVICTION IS AFFIRMED.  PP. 183-198. 

1.  IF THE CONFESSION WHICH PETITIONER MADE IN THE DISTRICT
ATTORNEY'S OFFICE SHORTLY AFTER HIS ARREST WAS IN FACT INVOLUNTARY, THE
CONVICTION CANNOT STAND, EVEN THOUGH THE EVIDENCE APART FROM THAT
CONFESSION MIGHT HAVE BEEN SUFFICIENT TO SUSTAIN THE JURY'S VERDICT. 
P. 190. 

2.  WHEN THE QUESTION ON REVIEW OF A STATE COURT CONVICTION IS
WHETHER THERE HAS BEEN A VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT BY THE INTRODUCTION OF AN INVOLUNTARY CONFESSION,
THIS COURT MUST MAKE AN INDEPENDENT DETERMINATION ON THE UNDISPUTED
FACTS.  P. 190. 

3.  IN THE LIGHT OF ALL THE CIRCUMSTANCES OF THIS CASE, THIS COURT
CANNOT SAY THAT PETITIONER'S CONFESSION IN THE DISTRICT ATTORNEY'S
OFFICE WAS THE RESULT OF COERCION, EITHER PHYSICAL OR PSYCHOLOGICAL. 
PP. 184-189, 190-191. 

4.  PETITIONER'S CONTENTION THAT THE NEWSPAPER ACCOUNTS OF HIS ARREST
AND CONFESSION WERE SO INFLAMMATORY AS TO MAKE A FAIR TRIAL IN THE LOS
ANGELES AREA IMPOSSIBLE - EVEN THOUGH A PERIOD OF SIX WEEKS INTERVENED
BETWEEN THE DAY OF HIS ARREST AND CONFESSION AND THE BEGINNING OF HIS
TRIAL - IS NOT SUSTAINED BY THE RECORD IN THIS CASE.  PP. 191-195. 

5.  PETITIONER'S CONTENTION THAT HE WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF COUNSEL WHEN HE WAIVED TRIAL BY JURY ON THE ISSUE OF
INSANITY IS NOT SUBSTANTIATED, SINCE IT APPEARS THAT HE HAD THE FULL
ASSISTANCE OF COMPETENT COUNSEL ON THAT QUESTION.  PP. 195-196. 

6.  THE COMBINATION OF THE ABOVE GROUNDS WITH THE ALLEGED UNWARRANTED
DELAY IN ARRAIGNMENT AND THE REFUSAL TO PERMIT COUNSEL TO CONSULT
PETITIONER DURING THE MAKING OF THE CONFESSION, DO NOT AMOUNT TO SUCH
UNFAIRNESS AS TO DENY DUE PROCESS.  PP. 196-198. 

7.  UPON REVIEW BY THIS COURT OF A STATE COURT CONVICTION CHALLENGED
AS WANTING IN DUE PROCESS, ILLEGAL ACTS OF STATE OFFICIALS PRIOR TO
TRIAL ARE RELEVANT ONLY AS THEY BEAR UPON THE DEFENDANT'S CONTENTION
THAT HE WAS DEPRIVED OF A FAIR TRIAL, EITHER THROUGH THE USE OF A
COERCED CONFESSION OR OTHERWISE.  P. 197. 

8.  UPON THE FACTS OF THIS CASE, THIS COURT CANNOT HOLD THAT THE
ILLEGAL CONDUCT OF THE LAW ENFORCEMENT OFFICERS IN NOT TAKING
PETITIONER PROMPTLY BEFORE A COMMITTING MAGISTRATE COERCED THE
CONFESSION WHICH HE MADE IN THE DISTRICT ATTORNEY'S OFFICE OR IN ANY
OTHER WAY DEPRIVED HIM OF A FAIR AND IMPARTIAL TRIAL.  P. 197. 

9.  UPON THE RECORD IN THIS CASE, THERE IS NO SHOWING OF PREJUDICE
RESULTING FROM THE REFUSAL OF THE PROSECUTORS TO ADMIT COUNSEL DURING
THEIR INTERROGATION OF PETITIONER.  PP. 197-198. 

10.  THE BURDEN OF SHOWING ESSENTIAL UNFAIRNESS IN A STATE COURT
TRIAL IS UPON HIM WHO CLAIMS SUCH INJUSTICE AND SEEKS TO HAVE THE
RESULT SET ASIDE, AND MUST BE SUSTAINED NOT AS A MATTER OF SPECULATION
BUT AS A DEMONSTRABLE REALITY.  P. 198. 

STROBLE V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

PETITIONER'S CONVICTION OF FIRST DEGREE MURDER, CHALLENGED AS
VIOLATING THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, WAS
AFFIRMED BY THE SUPREME COURT OF CALIFORNIA.  36 CAL. 2D 615, 226 P.2D
330.  THIS COURT GRANTED CERTIORARI.  342 U.S. 811.  AFFIRMED, P. 198. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER HAS BEEN CONVICTED OF FIRST DEGREE MURDER AND SENTENCED TO
DEATH.  HE ASKS THIS COURT TO REVERSE HIS CONVICTION AS WANTING IN THAT
DUE PROCESS OF LAW GUARANTEED AGAINST STATE ENCROACHMENT BY THE
FOURTEENTH AMENDMENT.  PETITIONER CLAIMS (1) THAT HIS CONVICTION WAS
BASED IN PART ON A COERCED CONFESSION; (2) THAT A FAIR TRIAL WAS
IMPOSSIBLE BECAUSE OF INFLAMMATORY NEWSPAPER REPORTS INSPIRED BY THE
DISTRICT ATTORNEY; (3) THAT HE WAS IN EFFECT DEPRIVED OF COUNSEL IN THE
COURSE OF HIS SANITY HEARING; (4) THAT THERE WAS AN UNWARRANTED DELAY
IN HIS ARRAIGNMENT; AND (5) THAT THE PROSECUTING OFFICERS UNJUSTIFIABLY
REFUSED TO PERMIT AN ATTORNEY TO CONSULT PETITIONER SHORTLY AFTER
PETITIONER'S ARREST.  PETITIONER URGES THAT EACH OF THE FIRST THREE
CIRCUMSTANCES IS INDEPENDENTLY A DEPRIVATION OF DUE PROCESS; AND THAT,
IN ANY EVENT, THE COMBINATION OF ALL FIVE CIRCUMSTANCES OPERATED TO
DEPRIVE HIM OF A FAIR TRIAL. 

THE MURDER OF WHICH PETITIONER HAS BEEN CONVICTED OCCURRED ON MONDAY,
NOVEMBER 14, 1949; THE VICTIM WAS A GIRL, AGED 6.  PETITIONER WAS
ARRESTED AROUND NOON ON THURSDAY, NOVEMBER 17, 1949.  HE WAS ARRAIGNED
IN THE LOS ANGELES MUNICIPAL COURT AT 10 O'CLOCK THE FOLLOWING MORNING,
AND THE CITY PUBLIC DEFENDER WAS APPOINTED TO REPRESENT HIM.  A
PRELIMINARY HEARING WAS HELD ON MONDAY, NOVEMBER 21, AND PETITIONER WAS
BOUND OVER FOR TRIAL IN THE SUPERIOR COURT OF LOS ANGELES COUNTY.  ON
NOVEMBER 25, PETITIONER WAS ARRAIGNED IN THE SUPERIOR COURT AND THE
COUNTY PUBLIC DEFENDER WAS APPOINTED AS HIS COUNSEL.  FROM THAT POINT
UNTIL THE CONCLUSION OF HIS TRIAL, PETITIONER WAS VIGOROUSLY DEFENDED
BY TWO DEPUTIES OF THE COUNTY PUBLIC DEFENDER'S OFFICE.  ON DECEMBER 2,
1949, PETITIONER PLEADED BOTH "NOT GUILTY" AND "NOT GUILTY BY REASON OF
INSANITY."  THE CASE CAME ON FOR TRIAL ON JANUARY 3, 1950.  THE ISSUE
OF GUILT WAS TRIED TO A JURY, WHICH, ON JANUARY 19, RETURNED A VERDICT
OF GUILTY OF FIRST DEGREE MURDER, WITHOUT RECOMMENDATION; UNDER
CALIFORNIA LAW, THIS AUTOMATICALLY FIXED THE PENALTY AT DEATH.  ON
JANUARY 20, 1950, PETITIONER WAIVED JURY TRIAL ON THE ISSUE OF
INSANITY, AND THE COURT FOUND THAT PETITIONER WAS SANE AT THE TIME OF
COMMITTING THE OFFENSE.  ON JANUARY 27, 1950, ON PETITIONER'S MOTION, A
PRIVATE ATTORNEY WAS SUBSTITUTED AS PETITIONER'S COUNSEL.  ON FEBRUARY
6, 1950, THE TRIAL COURT, AFTER A HEARING, DENIED PETITIONER'S MOTION
FOR A NEW TRIAL, MOTION IN ARREST OF JUDGMENT, AND MOTION TO SET ASIDE
THE WAIVER OF JURY TRIAL ON THE ISSUE OF INSANITY. 

ON APPEAL THE SUPREME COURT OF CALIFORNIA UNANIMOUSLY AFFIRMED THE
CONVICTION.  36 CAL.  2D 615, 226 P.2D 330.  WE GRANTED CERTIORARI
BECAUSE OF THE SERIOUSNESS OF PETITIONER'S ALLEGATIONS UNDER THE DUE
PROCESS CLAUSE.  342 U.S. 811. 

THE FACTS LEADING TO PETITIONER'S ARREST MAY BE SUMMARIZED AS
FOLLOWS: 

IN THE EARLY MORNING OF NOVEMBER 15, 1949, THE VICTIM'S BODY WAS
FOUND BEHIND THE INCINERATOR IN THE BACK YARD OF THE HOME OF
PETITIONER'S DAUGHTER AND SON-IN-LAW.  IT WAS WRAPPED IN A BLANKET AND
COVERED WITH BOXES.  A NECKTIE WAS WOUND TWICE AROUND THE CHILD'S
NECK.  AN AXE, KNIFE, AND HAMMER WERE FOUND IN THE VICINITY OF THE
BODY.  AN AUTOPSY REVEALED THAT THE IMMEDIATE CAUSE OF DEATH WAS
ASPHYXIA DUE TO STRANGULATION.  IT ALSO REVEALED NUMEROUS LACERATIONS
ON THE TOP AND SIDES OF THE HEAD, SIX SKULL FRACTURES, A DEEP
LACERATION IN THE BACK OF THE NECK, ABRASIONS AND DISCOLORATIONS ON THE
CHILD'S BACK, IRRITATION OF THE EXTERNAL GENITALIA, AND THREE PUNCTURE
WOUNDS IN THE CHEST. 

SUSPICION IMMEDIATELY FOCUSED ON PETITIONER, WHO HAD BEEN VISITING
HIS DAUGHTER AND SON-IN-LAW UNTIL THE DAY BEFORE, WHEN HE HAD
DISAPPEARED.  SOME SIX MONTHS BEFORE, PETITIONER HAD JUMPED BAIL ON A
CHARGE OF MOLESTING A SMALL GIRL AND HAD NEVER SINCE BEEN APPREHENDED. 
AT APPROXIMATELY 11:50 A.M. ON NOVEMBER 17, AS PETITIONER ENTERED THE
BAR OF A RESTAURANT IN DOWNTOWN LOS ANGELES, A CIVILIAN RECOGNIZED HIM
AS THE MAN WHOM THE POLICE WERE SEEKING IN CONNECTION WITH THE MURDER. 
THE CIVILIAN SUMMONED A POLICE OFFICER, CARLSON, WHO THEREUPON ARRESTED
PETITIONER. 

FROM THIS POINT ON THERE ARE SOME CONFLICTS IN THE TESTIMONY, AS
NOTED BELOW.  CARLSON, ACCOMPANIED BY THE CIVILIAN, TOOK PETITIONER TO
THE PARK FOREMAN'S OFFICE IN NEARBY PERSHING SQUARE, WHERE CARLSON
CALLED HEADQUARTERS TO REPORT HIS ARREST OF PETITIONER AND TO REQUEST
THAT A POLICE CAR BE SENT.  THEN CARLSON, IN THE PRESENCE OF THE
CIVILIAN AND THE PARK FOREMAN, PROCEEDED TO SEARCH PETITIONER.  CARLSON
HAD PETITIONER STAND FACING THE WALL WITH HIS HANDS RAISED AGAINST IT
AND HIS FEET AWAY FROM IT.  WHILE BEING SEARCHED IN THIS POSITION,
PETITIONER PULLED HIS FEET CLOSER TO THE WALL AND THEN CARLSON, WITH
THE SIDE OF HIS SHOE, KICKED PETITIONER'S SHOES AT THE TOES IN ORDER TO
PUSH PETITIONER'S FEET BACK INTO POSITION.  THE CIVILIAN TESTIFIED THAT
"POSSIBLY" CARLSON'S FOOT SLIPPED AND HIT PETITIONER'S SHIN "ONCE OR
TWICE."  CARLSON TESTIFIED THAT AT NO TIME DID HE "STRIKE" PETITIONER
OR "INFLICT ANY KIND OF PHYSICAL INJURY ON HIM."  (FN1)  NO MARKS WERE
FOUND ON PETITIONER WHEN HE WAS EXAMINED BY A PHYSICIAN A FEW HOURS
LATER.  IT ALSO APPEARS THAT AFTER SEARCHING PETITIONER, CARLSON TOOK
OUT HIS BLACKJACK, HELD IT UNDER PETITIONER'S NOSE, AND SAID EITHER,
"DO YOU KNOW WHAT THIS IS FOR?"  OR "HAVE YOU SEEN THIS?"  PETITIONER
MAKES NO CLAIM THAT CARLSON USED THE BLACKJACK ON HIM.  WHILE WAITING
FOR THE POLICE CAR TO ARRIVE THE CIVILIAN ASKED PETITIONER WHETHER HE
WAS GUILTY OF THE MURDER, AND PETITIONER "MUMBLED SOMETHING UNDER HIS
BREATH THAT SOUNDED LIKE 'I GUESS I AM.'"  THEREUPON, ACCORDING TO THE
CIVILIAN, THE PARK FOREMAN SLAPPED PETITIONER WITH HIS OPEN HAND AND
KNOCKED OFF PETITIONER'S GLASSES. 

WITHOUT UNDUE DELAY THE POLICE CAR ARRIVED AND PETITIONER WAS DRIVEN
TO THE DISTRICT ATTORNEY'S OFFICE IN THE HALL OF JUSTICE BUILDING. 
WHILE EN ROUTE ONE OF THE POLICE OFFICERS IN THE CAR BEGAN A
CONVERSATION WITH PETITIONER BY ASKING HIM WHERE HE HAD BEEN. 
PETITIONER REPLIED, "WELL, AFTER THAT TERRIBLE THING HAPPENED, I WENT
DOWN TO THE BEACH, DOWN TO OCEAN PARK.  I WAS GOING TO DO AWAY WITH
MYSELF."  THE OFFICER SAID, "WHAT DO YOU MEAN BY THAT TERRIBLE THING?" 
TO WHICH PETITIONER REPLIED, "WHEN THE LITTLE GIRL GOT KILLED."  THE
OFFICER THEN INTERPOSED, "DO YOU MEAN WHEN YOU KILLED THE LITTLE
GIRL?"  AND PETITIONER ANSWERED, "YES.  I WAS GOING DOWN TO THE BEACH. 
I WAS GOING TO JUMP IN THE OCEAN AND COMMIT SUICIDE BUT I DECIDED THAT
I WOULD HAVE TO PAY ON THE OTHER SIDE SO I MIGHT AS WELL COME BACK AND
PAY ON THIS SIDE."  THE OFFICER TESTIFIED THAT HE DID NOT PROMISE
PETITIONER ANY REWARD OR EXTEND TO HIM ANY HOPE OF IMMUNITY, AND THAT
HE DID NOT USE FORCE OR THREATS OF ANY KIND.  THE OFFICER'S ENTIRE
TESTIMONY REGARDING THIS CONVERSATION IS UNCONTRADICTED, AND, INSOFAR
AS IT CONTAINS A CONFESSION BY PETITIONER, NO OBJECTION WAS MADE AT THE
TRIAL ON THE GROUND THAT SUCH CONFESSION WAS INVOLUNTARY. 

PETITIONER DID OBJECT AT THE TRIAL, HOWEVER, TO THE INTRODUCTION IN
EVIDENCE OF A CONFESSION WHICH HE MADE AFTER HIS ARRIVAL IN THE
DISTRICT ATTORNEY'S OFFICE.  PETITIONER WAS BROUGHT TO THE DISTRICT
ATTORNEY'S OFFICE AT APPROXIMATELY 1 P.M., AND AN ASSISTANT DISTRICT
ATTORNEY BEGAN QUESTIONING PETITIONER IN THE PRESENCE OF SOME NINETEEN
PERSONS, ATTACHES OF THE DISTRICT ATTORNEY AND THE POLICE DEPARTMENT. 
THE ENTIRE PROCEEDING WAS RECORDED ON A RECORDING MACHINE WHICH HAD
BEEN SET IN OPERATION BEFORE PETITIONER'S ARRIVAL.  PETITIONER STATED
THAT ON THE AFTERNOON OF NOVEMBER 14, HIS VICTIM CAME TO THE HOME OF
PETITIONER'S DAUGHTER, WHERE PETITIONER WAS VISITING; HE TOOK HIS
VICTIM INTO THE BEDROOM AND MADE ADVANCES UPON HER; WHEN SHE BEGAN TO
SCREAM, HE BECAME FRIGHTENED, GOT HOLD OF HER THROAT, SQUEEZED IT UNTIL
SHE BECAME QUIET; SHE STARTED TO SQUIRM AGAIN, SO HE TOOK A NECKTIE
FROM THE DRESSER AND TIED IT AROUND HER NECK; WHEN SHE CONTINUED TO
MOVE, HE TOOK HER OFF THE BED, WRAPPED HER IN A BLANKET, AND HIT HER ON
THE TEMPLE WITH A HAMMER WHICH HE HAD OBTAINED FROM THE KITCHEN DRAWER;
HE THEN DRAGGED HER ACROSS THE BACK YARD TO THE INCINERATOR, RETURNED
TO THE KITCHEN TO GET AN ICE PICK, AND PUSHED THE PICK INTO HER THREE
TIMES IN AN EFFORT TO REACH HER HEART; NEXT HE GOT AN AXE FROM THE
GARAGE AND HIT HER ON THE HEAD AND BACKBONE; FINALLY HE GOT A KNIFE
FROM THE KITCHEN AND STABBED HER IN THE BACK OF THE NECK, COVERED HER
BODY WITH BOXES, AND LEFT FOR OCEAN PARK, A BEACH RESORT WITHIN THE
CITY OF LOS ANGELES, WHERE HE REMAINED FOR THE THREE NIGHTS BEFORE HIS
APPREHENSION. 

TOWARDS THE END OF THE RECORDING PETITIONER STATED THAT THE OFFICERS
HAD NOT THREATENED OR ABUSED HIM IN ANY WAY, EITHER IN THE PARK
FOREMAN'S OFFICE OR THE DISTRICT ATTORNEY'S OFFICE.  THE RECORDING
DISCLOSED NO MISTREATMENT AT THE TIME OF THE MAKING OF THE CONFESSION. 

THE QUESTIONING OF PETITIONER IN THE DISTRICT ATTORNEY'S OFFICE
LASTED APPROXIMATELY TWO HOURS.  ABOUT 45 MINUTES AFTER PETITIONER HAD
BEGUN HIS CONFESSION, AN ATTORNEY, MR. GRAY, CALLED AT THE WAITING ROOM
OF THE DISTRICT ATTORNEY'S OFFICE AND ASKED FOR THE ASSISTANTS HANDLING
THE CASE.  UPON BEING ADVISED THAT THEY WERE BUSY HE THEN ASKED FOR THE
DISTRICT ATTORNEY.  UPON BEING TOLD THAT THE DISTRICT ATTORNEY WAS ALSO
IN CONFERENCE AND COULD NOT BE DISTURBED, MR. GRAY ASKED TO SEE
PETITIONER.  IT IS UNCONTRADICTED THAT AT THAT POINT MR. GRAY STATED TO
A POLICE DEPARTMENT INSPECTOR WHO WAS PRESENT IN THE WAITING ROOM THAT
HE "JUST WANTED TO HEAR FROM (PETITIONER'S) LIPS WHETHER OR NOT"
PETITIONER HAD COMMITTED THE MURDER, "SO THAT (HE) COULD REPORT BACK"
TO PETITIONER'S SON-IN-LAW.  (FN2)  MR. GRAY WAS DENIED ADMISSION TO
THE ROOM IN WHICH PETITIONER WAS BEING QUESTIONED, BUT TALKED TO AN
ASSISTANT DISTRICT ATTORNEY AFTER THE CONFESSION HAD BEEN COMPLETED. 
MR. GRAY WAS PERMITTED TO SEE PETITIONER THAT EVENING.  MR. GRAY DID
NOT REPRESENT PETITIONER DURING THE TRIAL, BUT ON THE MOTION FOR NEW
TRIAL WAS SUBSTITUTED, AT PETITIONER'S REQUEST, FOR THE PUBLIC
DEFENDER. 

SHORTLY AFTER 3 P.M., PETITIONER WAS TAKEN FROM THE DISTRICT
ATTORNEY'S OFFICE TO DR. MARCUS CRAHAN, A PHYSICIAN IN CHARGE OF THE
HOSPITAL OF THE COUNTY JAIL, FOR A PHYSICAL AND MENTAL EXAMINATION. 
DR. CRAHAN, WHEN CALLED BY PETITIONER AS A WITNESS AT THE TRIAL,
TESTIFIED THAT HE EXAMINED PETITIONER CAREFULLY, INCLUDING HIS FEET AND
SHINS, BUT FOUND NO BRUISES OR ABRASIONS OF ANY KIND.  ACCORDING TO DR.
CRAHAN, DURING THE EXAMINATION PETITIONER STATED THAT SINCE HIS ARREST
THE POLICE OFFICERS HAD BEEN VERY KIND TO HIM AND THAT HE HAD NOT BEEN
"MISTREATED" AND HAD BEEN GIVEN "EVERY CONSIDERATION."  PETITIONER
RELATED TO DR. CRAHAN THE DETAILS OF THE KILLING. 

PETITIONER WAS LODGED IN THE COUNTY JAIL FOR THE NIGHT AND WAS
ARRAIGNED IN THE MUNICIPAL COURT AT 10 O'CLOCK THE FOLLOWING MORNING,
NOVEMBER 18. 

THEREAFTER, IN THE SIX WEEKS' PERIOD BETWEEN THE DATE OF HIS
ARRAIGNMENT AND THE BEGINNING OF HIS TRIAL, PETITIONER WAS EXAMINED BY
FOUR PSYCHIATRISTS (FN3) AND ONE CLINICAL PSYCHOLOGIST.  TO EACH OF
THESE PERSONS HE STATED THAT HE HAD KILLED HIS VICTIM AND RECOUNTED, IN
GREATER OR LESSER DETAIL, JUST HOW HE HAD GONE ABOUT THE KILLING. 
THESE EXPERTS, WHEN TESTIFYING AT THE TRIAL (TWO HAVING BEEN CALLED BY
THE PROSECUTION AND THREE BY THE PETITIONER), RELATED TO THE JURY WHAT
PETITIONER HAD TOLD THEM.  PETITIONER DID NOT OBJECT AT THE TIME, AND
MAKES NO OBJECTION NOW, TO THE ADMISSION OF THESE CONFESSIONS ON THE
GROUND THAT THEY WERE INVOLUNTARY. 

THE TRIAL COURT CHARGED THE JURY THAT IT COULD NOT CONSIDER A
CONFESSION UNLESS IT WAS VOLUNTARY; THAT THE JURY WAS THE SOLE JUDGE OF
VOLUNTARINESS; AND THAT A CONFESSION WAS NOT VOLUNTARY WHEN OBTAINED BY
ANY KIND OF VIOLENCE, ABUSE, OR THREAT, OR BY "ANY COAXING, CAJOLING,
OR MENACING INFLUENCE WHICH INDUCES IN THE MIND OF THE DEFENDANT THE
BELIEF OR HOPE THAT HE WILL GAIN SOME ADVANTAGE BY MAKING A
CONFESSION."  THE COURT FURTHER CHARGED THAT THE FACT THAT A CONFESSION
IS MADE WHILE AN ACCUSED IS UNDER ARREST AND BEING DETAINED, OR WHEN HE
IS NOT REPRESENTED BY COUNSEL, OR WITHOUT HIS HAVING BEEN TOLD THAT ANY
STATEMENT HE MAKES MAY BE USED AGAINST HIM, DOES NOT IN ITSELF MAKE THE
CONFESSION INVOLUNTARY, BUT IS ONE CIRCUMSTANCE TO BE CONSIDERED IN
DETERMINING THE VOLUNTARINESS OF THE CONFESSION.  THE COURT ADMONISHED
THE JURY TO VIEW WITH CAUTION THE TESTIMONY OF ANY WITNESS WHICH
PURPORTS TO RELATE AN ORAL CONFESSION BY A DEFENDANT. 

THE CALIFORNIA SUPREME COURT STATED: "WE MAY ASSUME THAT, AS A MATTER
OF LAW UNDER THE CIRCUMSTANCES SHOWN," PETITIONER'S CONFESSION IN THE
DISTRICT ATTORNEY'S OFFICE WAS INVOLUNTARY.  (FN4)  THE COURT FELT,
HOWEVER, THAT THE USE OF THAT CONFESSION "COULD NOT HAVE AFFECTED THE
FAIRNESS OF (PETITIONER'S) TRIAL," BECAUSE PETITIONER "THEREAFTER MADE
AT LEAST FIVE CONFESSIONS, OF MATERIALLY SIMILAR SUBSTANCE AND
UNQUESTIONED ADMISSIBILITY, WHICH WERE PUT IN EVIDENCE," AND BECAUSE
"IT DOES NOT APPEAR THAT THE OUTCOME OF THE TRIAL WOULD HAVE DIFFERED"
IF THAT CONFESSION HAD BEEN EXCLUDED.  (FN5)  THEREFORE THE COURT
CONCLUDED THAT USE OF THE CONFESSION HAD NOT DEPRIVED PETITIONER OF DUE
PROCESS.    WE TAKE A SOMEWHAT DIFFERENT VIEW.  IF THE CONFESSION WHICH
PETITIONER MADE IN THE DISTRICT ATTORNEY'S OFFICE WAS IN FACT
INVOLUNTARY, THE CONVICTION CANNOT STAND, EVEN THOUGH THE EVIDENCE
APART FROM THAT CONFESSION MIGHT HAVE BEEN SUFFICIENT TO SUSTAIN THE
JURY'S VERDICT.  MALINSKI V. NEW YORK, 324 U.S. 401, 402, 404 (1945);
LYONS V. OKLAHOMA, 322 U.S. 596, 597, N. 1 (1944).  THAT CONFESSION WAS
A PROMINENT FEATURE OF THE TRIAL.  FIRST A STENOGRAPHIC TRANSCRIPT OF
THE CONFESSION WAS READ, AND THEN A WIRE RECORDING OF IT WAS PLAYED TO
THE JURY.  UNDER THESE CIRCUMSTANCES WE CANNOT SAY THAT THE JURY'S
VERDICT COULD NOT HAVE BEEN BASED, AT LEAST IN PART, ON THE CONFESSION
MADE IN THE DISTRICT ATTORNEY'S OFFICE.  SINCE WE TAKE THIS VIEW, WE
CANNOT MERELY "ASSUME," AS DID THE STATE SUPREME COURT, THAT THAT
CONFESSION WAS INVOLUNTARY, BUT MUST GO ON TO DETERMINE THE QUESTION OF
VOLUNTARINESS. 

PETITIONER DOES NOT SO MUCH AS SUGGEST THAT THE ACTION OF ANY OFFICER
DURING THE TAKING OF THE CONFESSION WAS ACCOMPANIED BY FORCE OR
THREATS.  HIS SOLE CONTENTION IS THAT THE INCIDENTS IN THE PARK
FOREMAN'S OFFICE, COUPLED WITH THE PRESENCE OF NINETEEN OFFICERS IN THE
DISTRICT ATTORNEY'S OFFICE, RENDER THE CONFESSION WHICH HE MADE IN THE
LATTER OFFICE INVOLUNTARY. 

THIS COURT HAS FREQUENTLY STATED THAT, WHEN FACED WITH THE QUESTION
WHETHER THERE HAS BEEN A VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT BY THE INTRODUCTION OF AN INVOLUNTARY CONFESSION,
IT MUST MAKE AN INDEPENDENT DETERMINATION ON THE UNDISPUTED FACTS. 
MALINSKI V. NEW YORK, SUPRA, AT 404, AND CASES CITED; ID., AT 438
(DISSENTING OPINION).  WE ADHERE TO THAT RULE.  IN THE PRESENT CASE,
HOWEVER, WE NEED NOT CONFINE OURSELVES TO THE UNDISPUTED FACTS; FOR,
EVEN IF WE GIVE PETITIONER THE BENEFIT OF EVERY DOUBT AS TO THE ALLEGED
COERCION, WE DO NOT THINK IT CAN FAIRLY BE SAID THAT HIS CONFESSION IN
THE DISTRICT ATTORNEY'S OFFICE WAS COERCION'S PRODUCT.  WHATEVER
OCCURRED IN THE PARK FOREMAN'S OFFICE OCCURRED AT LEAST AN HOUR BEFORE
HE BEGAN HIS CONFESSION IN THE DISTRICT ATTORNEY'S OFFICE, AND WAS NOT
ACCOMPANIED BY ANY DEMAND THAT PETITIONER IMPLICATE HIMSELF.  LIKEWISE
HIS STATEMENT TO THE OFFICER WHILE ON THE WAY TO THE DISTRICT
ATTORNEY'S OFFICE WAS ADMITTEDLY VOLUNTARY.  IN THE DISTRICT ATTORNEY'S
OFFICE, PETITIONER ANSWERED QUESTIONS READILY; THERE WAS NONE OF THE
"PRESSURE OF UNRELENTING INTERROGATION" WHICH THIS COURT CONDEMNED IN
WATTS V. INDIANA, 338 U.S. 49, 54 (1949).  INDEED, THE RECORD SHOWS
THAT FROM THE TIME OF HIS ARREST UNTIL THE TIME OF HIS TRIAL,
PETITIONER WAS ANXIOUS TO CONFESS TO ANYBODY WHO WOULD LISTEN - AND AS
MUCH SO AFTER HE HAD CONSULTED WITH COUNSEL AS BEFORE.  HIS WILLINGNESS
TO CONFESS TO THE DOCTORS WHO EXAMINED HIM, AFTER HE HAD BEEN ARRAIGNED
AND COUNSEL HAD BEEN APPOINTED, AND IN CIRCUMSTANCES FREE OF COERCION,
SUGGESTS STRONGLY THAT PETITIONER HAD CONCLUDED, QUITE INDEPENDENTLY OF
ANY DURESS BY THE POLICE, "THAT IT WAS WISE TO MAKE A CLEAN BREAST OF
HIS GUILT."  SEE LYONS V. OKLAHOMA, SUPRA, AT 604.  IN THE LIGHT OF ALL
THESE CIRCUMSTANCES, WE ARE UNABLE TO SAY THAT PETITIONER'S CONFESSION
IN THE DISTRICT ATTORNEY'S OFFICE WAS THE RESULT OF COERCION, EITHER
PHYSICAL OR PSYCHOLOGICAL. 

WE TURN NOW TO PETITIONER'S CONTENTION THAT THE NEWSPAPER ACCOUNTS OF
HIS ARREST AND CONFESSION WERE SO INFLAMMATORY AS TO MAKE A FAIR TRIAL
IN THE LOS ANGELES AREA IMPOSSIBLE - EVEN THOUGH A PERIOD OF SIX WEEKS
INTERVENED BETWEEN THE DAY OF HIS ARREST AND CONFESSION AND THE
BEGINNING OF HIS TRIAL.  HERE WE ARE NOT FACED WITH ANY QUESTION AS TO
THE PERMISSIBLE SCOPE OF NEWSPAPER COMMENT REGARDING PENDING
LITIGATION, SEE BRIDGES V. CALIFORNIA, 314 U.S. 252 (1941); PENNEKAMP
V. FLORIDA, 328 U.S. 331 (1946); CRAIG V. HARNEY, 331 U.S. 367 (1947);
BUT WITH THE QUESTION WHETHER NEWSPAPER ACCOUNTS AROUSED SUCH PREJUDICE
IN THE COMMUNITY THAT PETITIONER'S TRIAL WAS "FATALLY INFECTED" WITH AN
ABSENCE OF "THAT FUNDAMENTAL FAIRNESS ESSENTIAL TO THE VERY CONCEPT OF
JUSTICE."  LISENBA V. CALIFORNIA, 314 U.S. 219, 236 (1941). 

THE SEARCH FOR AND APPREHENSION OF PETITIONER WAS ATTENDED BY MUCH
NEWSPAPER PUBLICITY.  BETWEEN THE TIME OF THE MURDER AND THE TIME OF
PETITIONER'S ARREST, NEWSPAPERS OF GENERAL CIRCULATION IN THE LOS
ANGELES AREA FEATURED IN BANNER HEADLINES THE "MANHUNT" WHICH THE
POLICE WERE CONDUCTING FOR PETITIONER.  ON THE DAY OF PETITIONER'S
ARREST THESE NEWSPAPERS PRINTED EXTENSIVE EXCERPTS FROM HIS CONFESSION
IN THE DISTRICT ATTORNEY'S OFFICE, THE DETAILS OF THE CONFESSION HAVING
BEEN RELEASED TO THE PRESS BY THE DISTRICT ATTORNEY AT PERIODIC
INTERVALS WHILE PETITIONER WAS GIVING THE CONFESSION.   ON THE
FOLLOWING MONDAY, FOUR DAYS LATER, LOS ANGELES NEWSPAPERS REPRINTED THE
FULL TEXT OF THAT CONFESSION AS IT WAS READ INTO THE RECORD AT THE
PRELIMINARY HEARING.  MOST OF THESE EVENTS WERE GIVEN TOP BILLING ON
THE FRONT PAGE OF THE PAPERS, AND WERE ACCOMPANIED BY LARGE HEADLINES. 
PETITIONER WAS VARIOUSLY DESCRIBED, BOTH IN HEADLINES AND IN THE TEXT
OF NEWS STORIES, AS A "WEREWOLF," A "FIEND," A "SEX-MAD KILLER," AND
THE LIKE.  THE DISTRICT ATTORNEY ANNOUNCED TO THE PRESS HIS BELIEF THAT
PETITIONER WAS GUILTY AND SANE. 

THE SPATE OF NEWSPAPER PUBLICITY ACCOMPANYING PETITIONER'S ARREST AND
CONFESSION SOON ABATED, HOWEVER.  DURING THE MONTH OF DECEMBER, 1949,
PETITIONER MADE THE HEADLINES OF LOS ANGELES NEWSPAPERS ONLY
INFREQUENTLY, SUCH AS WHEN HE ENTERED A PLEA OF "NOT GUILTY" ON
DECEMBER 2.  PETITIONER POINTS TO CERTAIN OTHER EVENTS WHICH OCCURRED
DURING THAT MONTH.  THE GOVERNOR OF THE STATE CALLED A SPECIAL SESSION
OF THE LEGISLATURE TO CONSIDER, AMONG OTHER THINGS, THE PROBLEM OF "SEX
CRIMES"; THE GOVERNOR CALLED A ONE-DAY CONFERENCE OF LAW ENFORCEMENT
OFFICERS TO CONSIDER THE SAME SUBJECT; A COMMITTEE OF THE STATE
LEGISLATURE INVESTIGATING SEX CRIMES HELD HEARINGS IN LOS ANGELES, AT
WHICH THE DISTRICT ATTORNEY STATED THAT HE DID NOT SEE WHY SEX
OFFENDERS "SHOULDN'T BE DISPOSED OF THE SAME WAY" AS MAD DOGS; AND
VARIOUS CITIZENS' GROUPS MADE PROPOSALS FOR STUDYING AND DEALING WITH
SEX CRIMES.  LOS ANGELES NEWSPAPERS PUBLISHED ACCOUNTS OF EACH OF THESE
EVENTS, AND THE ACCOUNTS AT TIMES MADE REFERENCE TO THE MURDER WITH
WHICH PETITIONER WAS CHARGED. 

PETITIONER'S TRIAL ITSELF WAS REPORTED BY LOS ANGELES NEWSPAPERS,
USUALLY ON INSIDE PAGES.  PETITIONER MAKES NO OBJECTION TO THIS PHASE
OF THE NEWSPAPER COVERAGE EXCEPT FOR THE NEWSPAPERS' OCCASIONAL
REFERENCE TO PETITIONER AS A "WEREWOLF." 

WHILE WE MAY DEPRECATE THE ACTION OF THE DISTRICT ATTORNEY IN
RELEASING TO THE PRESS, ON THE DAY OF PETITIONER'S ARREST, CERTAIN
DETAILS OF THE CONFESSION WHICH PETITIONER MADE, WE FIND THAT THE
TRANSCRIPT OF THAT CONFESSION WAS READ INTO THE RECORD AT THE
PRELIMINARY HEARING IN THE MUNICIPAL COURT ON NOVEMBER 21, FOUR DAYS
LATER.  THUS IN ANY EVENT THE CONFESSION WOULD HAVE BECOME AVAILABLE TO
THE PRESS AT THAT TIME, FOR "WHAT TRANSPIRES IN THE COURT ROOM IS
PUBLIC PROPERTY."  CRAIG V. HARNEY, SUPRA, AT 374.  PETITIONER HAS NOT
SHOWN HOW THE PUBLICATION OF A PORTION OF THAT CONFESSION FOUR DAYS
EARLIER PREJUDICED THE JURY IN ARRIVING AT THEIR VERDICT TWO MONTHS
THEREAFTER. 

WE AGREE WITH THE CALIFORNIA SUPREME COURT THAT PETITIONER HAS FAILED
TO SHOW THAT THE NEWSPAPER ACCOUNTS AROUSED AGAINST HIM SUCH PREJUDICE
IN THE COMMUNITY AS TO "NECESSARILY PREVENT A FAIR TRIAL," LISENBA V.
CALIFORNIA, SUPRA, AT 236.  AT THE OUTSET, IT SHOULD BE NOTED THAT AT
NO POINT DID PETITIONER MOVE FOR A CHANGE OF VENUE, ALTHOUGH THE
CALIFORNIA PENAL CODE EXPLICITLY PROVIDES THAT WHENEVER "A FAIR AND
IMPARTIAL TRIAL CANNOT BE HAD IN THE COUNTY" IN WHICH A CRIMINAL ACTION
IS PENDING, THE ACTION MAY, UPON MOTION OF THE DEFENDANT, BE REMOVED TO
"THE PROPER COURT OF SOME CONVENIENT COUNTY FREE FROM A LIKE
OBJECTION."  (FN6)  OF COURSE PETITIONER'S FAILURE TO MAKE SUCH A
MOTION IS NOT DISPOSITIVE OF THE ISSUE HERE, SINCE THE STATE COURT DID
NOT DECIDE AGAINST PETITIONER ON THIS GROUND BUT RATHER REJECTED ON THE
MERITS HIS FEDERAL CONSTITUTIONAL CLAIM.  (FN7)  BUT, IN AN EFFORT TO
DETERMINE WHETHER THERE WAS PUBLIC HYSTERIA OR WIDESPREAD COMMUNITY
PREJUDICE AGAINST PETITIONER AT THE TIME OF HIS TRIAL, WE THINK IT
SIGNIFICANT THAT TWO DEPUTY PUBLIC DEFENDERS WHO WERE VIGOROUS IN
PETITIONER'S DEFENSE THROUGHOUT THE TRIAL, SAW NO OCCASION TO SEEK A
TRANSFER OF THE ACTION TO ANOTHER COUNTY ON THE GROUND THAT PREJUDICIAL
NEWSPAPER ACCOUNTS HAD MADE IT IMPOSSIBLE FOR PETITIONER TO OBTAIN A
FAIR TRIAL IN THE SUPERIOR COURT OF LOS ANGELES COUNTY. 

THE MATTER OF PREJUDICIAL NEWSPAPER ACCOUNTS WAS FIRST BROUGHT TO THE
TRIAL COURT'S ATTENTION AFTER PETITIONER'S CONVICTION, AS ONE OF THE
GROUNDS IN SUPPORT OF A MOTION FOR A NEW TRIAL.  AT THAT TIME
PETITIONER'S PRESENT ATTORNEY URGED THAT PETITIONER HAD BEEN "DEPRIVED
OF THE PRESUMPTION OF INNOCENCE BY THE PREMATURE RELEASE BY THE
DISTRICT ATTORNEY'S OFFICE OF THE DETAILS OF THE CONFESSION," AND
OFFERED IN SUPPORT OF THAT ALLEGATION CERTAIN LOS ANGELES NEWSPAPERS
PUBLISHED AT THE TIME OF PETITIONER'S ARREST.  THE TRIAL COURT REPLIED
AS FOLLOWS: 

"THE JURORS WERE ALL THOROUGHLY EXAMINED AND ALL DEFINITELY STATED
THAT THEY WOULD GIVE TO THE DEFENDANT THE BENEFIT OF THE PRESUMPTION OF
INNOCENCE  ...  .  THERE IS NOTHING TO SHOW THOSE JURORS EVER SAW THOSE
PAPERS OR EVER READ THOSE PAPERS.  THEY WERE FULLY EXAMINED SO FAR AS
DEFENSE COUNSEL DESIRED AS TO ANY KNOWLEDGE OR INFORMATION THEY MIGHT
HAVE OF THE CASE."  (FN8) 

PETITIONER DOES NOT CHALLENGE THIS STATEMENT OF THE COURT.  INDEED,
AT NO STAGE OF THE PROCEEDINGS HAS PETITIONER OFFERED SO MUCH AS AN
AFFIDAVIT TO PROVE THAT ANY JUROR WAS IN FACT PREJUDICED BY THE
NEWSPAPER STORIES.  HE ASKS THIS COURT SIMPLY TO READ THOSE STORIES AND
THEN TO DECLARE, OVER THE CONTRARY FINDING OF TWO STATE COURTS, THAT
THEY NECESSARILY DEPRIVED HIM OF DUE PROCESS.  THAT WE CANNOT DO, AT
LEAST WHERE, AS HERE, THE INFLAMMATORY NEWSPAPER ACCOUNTS APPEARED
APPROXIMATELY SIX WEEKS BEFORE THE BEGINNING OF PETITIONER'S TRIAL, AND
THERE IS NO AFFIRMATIVE SHOWING THAT ANY COMMUNITY PREJUDICE EVER
EXISTED OR IN ANY WAY AFFECTED THE DELIBERATION OF THE JURY.  IT IS
ALSO SIGNIFICANT THAT IN THIS CASE THE CONFESSION WHICH WAS ONE OF THE
MOST PROMINENT FEATURES OF THE NEWSPAPER ACCOUNTS WAS MADE VOLUNTARILY
AND WAS INTRODUCED IN EVIDENCE AT THE TRIAL ITSELF. 

WE FIND NO SUBSTANCE IN PETITIONER'S CONTENTION THAT HE WAS DEPRIVED
OF EFFECTIVE COUNSEL AT A CRITICAL POINT IN THE CASE, NAMELY, WHEN HE
WAIVED TRIAL BY JURY ON THE ISSUE OF INSANITY.  THE ATTORNEY WHO
CONSULTED WITH PETITIONER AS TO WHETHER HE SHOULD MAKE SUCH A WAIVER
WAS THE PUBLIC DEFENDER HIMSELF, ALTHOUGH PRIOR TO THAT TIME TWO DEPUTY
PUBLIC DEFENDERS HAD HANDLED THE CASE IN COURT.  THE PUBLIC DEFENDER
TOOK THIS ACTION BECAUSE THE TRIAL COURT, AT THE CONCLUSION OF THE
TRIAL ON THE ISSUE OF GUILT, HAD REQUESTED THAT HE PERSONALLY ATTEND
THE TRIAL ON THE INSANITY ISSUE.  (FN9)  WE FAIL TO SEE HOW THIS ACTION
HARMED PETITIONER.  AS THE CALIFORNIA SUPREME COURT FOUND, THE PUBLIC
DEFENDER "WAS FAMILIAR WITH THE CASE, HAVING READ THE DAILY TRANSCRIPT
AND CONSULTED WITH AND ADVISED (HIS TWO DEPUTIES) AND INTERVIEWED
WITNESSES DURING THE TRIAL"; (FN10) MOREOVER, BEFORE CONSULTING WITH
PETITIONER ON THE WAIVER QUESTION, HE DISCUSSED THE MATTER WITH HIS TWO
DEPUTIES.  THEREAFTER, PETITIONER TWICE STATED IN OPEN COURT, IN REPLY
TO INQUIRIES BY THE TRIAL JUDGE, THAT HE WISHED TO WAIVE A JURY TRIAL
ON THE ISSUE OF INSANITY.  FURTHERMORE, THERE WAS NO REAL QUESTION AS
TO PETITIONER'S SANITY.  HE INTRODUCED NO ADDITIONAL EVIDENCE AT THE
SANITY HEARING; INSTEAD THE PARTIES STIPULATED THAT THE SOLE EVIDENCE
WOULD BE THAT ADDUCED AT THE TRIAL ON THE ISSUE OF GUILT, PLUS THE
COMPLETE REPORTS OF THE PSYCHIATRISTS WHO HAD TESTIFIED AT THAT TRIAL. 
(FN11)  EVERY PSYCHIATRIST WHO HAD TESTIFIED, WHETHER ON BEHALF OF
PETITIONER OR ON BEHALF OF THE PROSECUTION, HAD REACHED THE CONCLUSION
THAT PETITIONER WAS SANE.  ON THE MOTION FOR NEW TRIAL, WHEN
PETITIONER'S PRESENT ATTORNEY SOUGHT TO SET ASIDE THE WAIVER OF JURY
TRIAL ON THE ISSUE OF INSANITY, HE OFFERED NO NEW EVIDENCE RELATING TO
PETITIONER'S MENTAL STATE AND DID NOT INDICATE THAT ANY SUCH EVIDENCE
WAS AVAILABLE.  WE CONCLUDE THAT PETITIONER RECEIVED THE FULL
ASSISTANCE OF COMPETENT COUNSEL IN DECIDING THAT HE WANTED THE INSANITY
ISSUE TRIED TO THE COURT.  ON THAT QUESTION, AS ON ALL OTHERS, HE HAS
BEEN AFFORDED "THE ASSISTANCE OF ZEALOUS AND EARNEST COUNSEL FROM
ARRAIGNMENT TO FINAL ARGUMENT IN THIS COURT."  AVERY V. ALABAMA, 308
U.S. 444, 450 (1940).  (FN12) 

NOR CAN WE AGREE WITH PETITIONER THAT A COMBINATION OF THESE GROUNDS
WITH OTHER CIRCUMSTANCES, NAMELY, UNWARRANTED DELAY IN ARRAIGNMENT AND
REFUSAL TO PERMIT COUNSEL TO CONSULT PETITIONER DURING THE MAKING OF
THE CONFESSION, AMOUNTS TO SUCH UNFAIRNESS AS TO DENY DUE PROCESS.  THE
ARRAIGNMENT WAS HAD WITHIN LESS THAN TWENTY-FOUR HOURS AFTER THE
ARREST.  THE OFFICIALS QUESTIONED PETITIONER ONLY DURING THE TWO-HOUR
PERIOD IN THE DISTRICT ATTORNEY'S OFFICE, DESCRIBED ABOVE.  THE
REMAINDER OF THAT AFTERNOON WAS DEVOTED TO A PHYSICAL AND MENTAL
EXAMINATION, TO WHICH PETITIONER MAKES NO OBJECTION.  COUNSEL CALLED ON
PETITIONER AT THE COUNTY JAIL AT 9:30 P.M. THE EVENING OF THE ARREST;
PRESUMABLY PETITIONER REMAINED ALONE FROM THEN UNTIL THE TIME OF HIS
ARRAIGNMENT THE FOLLOWING MORNING.  ALTHOUGH THE CALIFORNIA SUPREME
COURT FOUND THAT THE FAILURE PROMPTLY TO ARRAIGN PETITIONER BEFORE A
COMMITTING MAGISTRATE WAS A VIOLATION OF STATE LAW, (FN13) THAT IS NOT
DETERMINATIVE OF THE ISSUE BEFORE US.  WHEN THIS COURT IS ASKED TO
REVERSE A STATE COURT CONVICTION AS WANTING IN DUE PROCESS, ILLEGAL
ACTS OF STATE OFFICIALS PRIOR TO TRIAL ARE RELEVANT ONLY AS THEY BEAR
ON PETITIONER'S CONTENTION THAT HE HAS BEEN DEPRIVED OF A FAIR TRIAL,
EITHER THROUGH THE USE OF A COERCED CONFESSION OR OTHERWISE.  LISENBA
V. CALIFORNIA, SUPRA, AT 234, 235, 240; LYONS V. OKLAHOMA, SUPRA, AT
597, N. 2; GALLEGOS V. NEBRASKA, 342 U.S. 55, 59, 65 (1951).  UPON THE
FACTS OF THIS CASE, WE CANNOT HOLD THAT THE ILLEGAL CONDUCT OF THE LAW
ENFORCEMENT OFFICERS IN NOT TAKING PETITIONER PROMPTLY BEFORE A
COMMITTING MAGISTRATE, COERCED THE CONFESSION WHICH HE MADE IN THE
DISTRICT ATTORNEY'S OFFICE OR IN ANY OTHER WAY DEPRIVED HIM OF A FAIR
AND IMPARTIAL TRIAL. 

AS TO THE REFUSAL OF THE PROSECUTORS TO ADMIT COUNSEL DURING THEIR
INTERROGATION OF PETITIONER, COUNSEL STATED THAT HE HAD COME TO THE
DISTRICT ATTORNEY'S OFFICE AT THE REQUEST OF PETITIONER'S SON-IN-LAW
MERELY TO INQUIRE OF PETITIONER AS TO HIS GUILT.  AT NO POINT DID
PETITIONER HIMSELF ASK FOR COUNSEL.  IN LIGHT OF THESE FACTS, THE
DISTRICT ATTORNEY'S REFUSAL TO INTERRUPT THE EXAMINATION OF PETITIONER,
WHICH HAD BEEN PROCEEDING FOR ALMOST AN HOUR, SO THAT COUNSEL COULD
MAKE INQUIRY FOR PETITIONER'S SON-IN-LAW, DOES NOT CONSTITUTE A
DEPRIVATION OF DUE PROCESS, EITHER INDEPENDENTLY OR IN CONJUNCTION WITH
ALL OTHER CIRCUMSTANCES IN THIS CASE.  WHILE DISTRICT ATTORNEYS SHOULD
ALWAYS HONOR A REQUEST OF COUNSEL FOR AN INTERVIEW WITH A CLIENT, UPON
THE RECORD BEFORE US THERE IS NO SHOWING OF PREJUDICE.  AS WAS SAID IN
ADAMS V. UNITED STATES EX REL.  MCCANN, 317 U.S. 269, 281 (1942): 

"IF THE RESULT OF THE ADJUDICATORY PROCESS IS NOT TO BE SET AT
NAUGHT, IT IS NOT ASKING TOO MUCH THAT THE BURDEN OF SHOWING ESSENTIAL
UNFAIRNESS BE SUSTAINED BY HIM WHO CLAIMS SUCH INJUSTICE AND SEEKS TO
HAVE THE RESULT SET ASIDE, AND THAT IT BE SUSTAINED NOT AS A MATTER OF
SPECULATION BUT AS A DEMONSTRABLE REALITY." 

THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA IS AFFIRMED. 

FN1  PETITIONER HIMSELF DID NOT TESTIFY AT THE TRIAL. 

FN2  R. 287-288 (TESTIMONY OF JOHN D. GRAY); SEE ALSO R. 210
(TESTIMONY OF INSPECTOR J.A. DONAHOE). 

FN3  THREE OF THESE PSYCHIATRISTS HAD BEEN APPOINTED BY THE TRIAL
COURT PURSUANT TO CAL. PENAL CODE, 1951, SEC. 1027. 

FN4  36 CAL. 2D AT 623, 226 P.2D AT 335. 

FN5  36 CAL. 2D AT 623, 226 P.2D AT 336. 

FN6  CAL. PENAL CODE, 1951, SECS. 1033, 1035. 

FN7  SEE GRAYSON V. HARRIS, 267 U.S. 352, 358 (1925); INTERNATIONAL
STEEL & IRON CO. V. NATIONAL SURETY CO., 297 U.S. 657, 665-666 (1936);
INDIANA EX REL. ANDERSON V. BRAND, 303 U.S. 95, 98 (1938); TAKAHASHI V.
FISH & GAME COMM'N, 334 U.S. 410, 414, N. 4 (1948). 

FN8  R. 361-362. 

FN9  THE TRIAL COURT MADE THIS REQUEST AS A RESULT OF CERTAIN CONDUCT
ON THE PART OF ONE OF THE DEPUTY PUBLIC DEFENDERS, SET FORTH IN THE
OPINION BELOW AT 36 CAL. 2D 628, 226 P.2D 338-339. 

FN10  36 CAL. 2D AT 628, 226 P.2D AT 338. 

FN11  AT NO POINT HAS PETITIONER CHALLENGED THAT STIPULATION. 
INDEED, THE STIPULATION HAD BEEN ENTERED INTO BY ONE OF THE DEPUTY
PUBLIC DEFENDERS, IN WHOM PETITIONER STATES HE HAD COMPLETE CONFIDENCE,
PRIOR TO THE TIME THE COURT ASKED THE PUBLIC DEFENDER TO BE PERSONALLY
PRESENT AT THE INSANITY TRIAL. 

FN12  IN PEOPLE V. ADAMSON, 34 CAL. 2D 320, 333, 210 P.2D 13, 19
(1949), THE SUPREME COURT OF CALIFORNIA HAD THIS TO SAY ABOUT THIS SAME
PUBLIC DEFENDER AND HIS OFFICE: "THIS COURT CAN TAKE JUDICIAL NOTICE,
TOO, THAT IT WOULD BE DIFFICULT TO FIND IN CALIFORNIA ANY LAWYERS MORE
EXPERIENCED OR BETTER QUALIFIED IN DEFENDING CRIMINAL CASES THAN THE
PUBLIC DEFENDER OF LOS ANGELES COUNTY AND HIS STAFF." 

FN13  CAL. CONST., ART. I, SEC. 8. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

ONE OF THE PETITIONER'S GROUNDS FOR ATTACKING HIS CONVICTION IS THAT
THE TRIAL LACKED FUNDAMENTAL FAIRNESS BECAUSE THE DISTRICT ATTORNEY
HIMSELF INITIATED THE INTRUSION OF THE PRESS INTO THE PROCESS OF THE
TRIAL.  SUCH MISCONDUCT, THE PETITIONER CONTENDS, SUBVERTED THE
ADJUDICATORY PROCESS BY WHICH GUILT IS DETERMINED IN ANGLO-SAXON
COUNTRIES, SO AS TO OFFEND WHAT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT PROTECTS.  THE ISSUE WAS RAISED AFTER VERDICT, AND
THE SUPREME COURT OF CALIFORNIA MIGHT HAVE DISPOSED OF THE CLAIM BY
RULING THAT IT HAD NOT BEEN MADE AT THE STAGE OF THE PROCEEDING
REQUIRED BY STATE LAW.  THAT COURT, HOWEVER, CHOSE NOT TO DO SO.  IT
PERMITTED THE PETITIONER TO INVOKE THE DUE PROCESS CLAUSE AND THEREBY
TENDERED A FEDERAL CONSTITUTIONAL ISSUE, AS THIS COURT RECOGNIZES, FOR
OUR DISPOSITION. 

THE SUPREME COURT OF CALIFORNIA THUS FORMULATED THE ISSUE AND
INDICATED ITS CONCEPTION OF THE ALLOWABLE STANDARDS OF FAIRNESS UNDER
THE DUE PROCESS CLAUSE: 

"DEFENDANT CLAIMS THAT HE WAS DEPRIVED OF A FAIR TRIAL BECAUSE THE
TRIAL COURT DID NOT PROTECT HIM FROM, AND THE DISTRICT ATTORNEY
FOSTERED, 'PUBLIC PRESSURE.'  THE KILLING AND THE SUBSEQUENT SEARCH FOR
DEFENDANT RECEIVED MUCH PUBLICITY.  IMMEDIATELY AFTER DEFENDANT'S
ARREST HE WAS TAKEN TO THE OFFICE OF THE DISTRICT ATTORNEY,
INTERROGATED, AND CONFESSED.  THE DISTRICT ATTORNEY, EVEN BEFORE
DEFENDANT COMPLETED HIS STATEMENT, RELEASED TO THE PRESS DETAILS OF THE
STATEMENT (INCLUDING DEFENDANT'S ADMISSIONS OF SEX PLAY WITH HIS VICTIM
AND OTHER CHILDREN ON OCCASIONS PRIOR TO THE KILLING) AND ALSO
ANNOUNCED HIS BELIEF THAT DEFENDANT WAS GUILTY AND SANE.  AT THE TIME
OF DEFENDANT'S ARREST AND AT THE TIME OF HIS TRIAL (WHICH BEGAN SOME
SEVEN WEEKS LATER) THERE WAS NOTORIOUS WIDESPREAD PUBLIC EXCITEMENT,
SENSATIONALLY EXPLOITED BY NEWSPAPER, RADIO AND TELEVISION, CONCERNING
CRIMES AGAINST CHILDREN AND DEFENDANT'S CRIME IN PARTICULAR.  IN THESE
CIRCUMSTANCES, DEFENDANT URGES, IT WAS IMPOSSIBLE FOR HIM TO OBTAIN AN
UNBIASED JURY, AND DUE PROCESS REQUIRES A NEW TRIAL EVEN THOUGH THERE
IS NO SHOWING THAT ANY JUROR WAS ACTUALLY INFLUENCED BY THE SENSATIONAL
PUBLICITY AND THE POPULAR HYSTERIA. 

"IN CONNECTION WITH HIS CLAIM OF 'PUBLIC PRESSURE' DEFENDANT ALSO
CALLS ATTENTION TO THE FOLLOWING STATEMENT BY ONE OF HIS COUNSEL
(VETERAN DEPUTY PUBLIC DEFENDER JOHN J. HILL; DEFENDANT WAS NOT THEN
REPRESENTED BY HIS PRESENT PRIVATE COUNSEL) MADE DURING HIS CLOSING
ARGUMENT:  'I WISH TO MAKE THIS COMMENTARY WITH REFERENCE TO JUST WHAT
HAS OCCURRED BEFORE THE COURT TOOK THE BENCH.  I REFER TO THE
TELEVISING AND THE PICTURES TAKEN OF THE JURY ENTERING THE BOX, AND
WITH COUNSEL  ...  .  I DON'T LIKE THIS ADDED PUBLICITY IN THE CASE;
AND YET WE CONFORM, WE COOPERATE WITH THE MEN, OUR FELLOW HUMAN BEINGS
IN THE VOCATION, AND THEREFORE WE ACCEPT IT AS PART OF WHAT WE HAVE TO
EXPECT IN A CASE THAT HAS ATTRACTED SO MUCH ATTENTION, THAT HAS BEEN SO
WIDELY PUBLICIZED, AND CONCERNING WHICH THERE HAVE BEEN UTTERANCES OVER
THE RADIO, IN THE PUBLIC PRESS, WHICH HAVE UNDULY ACCENTUATED THE
IMPORTANCE OF THIS CASE  ...  WE SHALL NOT BE INFLUENCED IN THE
SLIGHTEST DEGREE IN THAT CALM DELIBERATION, DISPASSIONATE DISCUSSION,
AND ARRIVING AT A VERDICT UNDER THE INSTITUTIONS UNDER WHICH WE LIVE,
AND CONCERNING WHICH WE ARE PROUD:  THE AMERICAN WAY OF THE CONDUCT OF
A TRIAL.' 

"IT SEEMS THAT THE TRADITIONAL CONCEPT OF THE 'AMERICAN WAY OF THE
CONDUCT OF A TRIAL,' PARTICULARLY A TRIAL FOR A SORDID CRIMINAL OFFENSE
SUCH AS THAT OF DEFENDANT, INCLUDES BOTH THE ASPECTS MENTIONED SO
UNDERSTANDINGLY BY MR. HILL:  ON THE ONE HAND OVER-STIMULATION, BY MASS
MEDIA OF COMMUNICATION, OF THE USUAL PUBLIC INTEREST IN THAT WHICH IS
GRUESOME; ON THE OTHER HAND A TRIAL BY A JUDGE AND JURY IMMUNE FROM THE
PUBLIC PASSION."  PEOPLE V. STROBLE, 36 CAL. 2D 615, 620-621, 226 P.2D
330, 333-334. 

THUS, ON THE CALIFORNIA COURT'S OWN READING OF THE RECORD,
CIRCUMSTANCES TENDING TO ESTABLISH GUILT AND ADDUCED OUTSIDE THE
COURTROOM BEFORE THE TRIAL HAD EVEN BEGUN WERE AVIDLY EXPLOITED BY
PRESS AND OTHER MEDIA, ACTIVELY PROMOTED BY THE PROSECUTOR.  THE STATE
COURT SANCTIONED THIS AS NOT ONLY PERMISSIBLE BUT AS AN INEVITABLE
INGREDIENT OF AMERICAN CRIMINAL JUSTICE.  THAT SANCTION CONTRADICTS ALL
OUR PROFESSIONS AS TO THE ESTABLISHMENT OF GUILT ON THE BASIS OF WHAT
TAKES PLACE IN THE COURTROOM, SUBJECT TO JUDICIAL RESTRICTIONS IN
PRODUCING PROOF AND IN THE GENERAL CONDUCT OF THE PROCEEDINGS.  JURORS
ARE OF COURSE HUMAN BEINGS AND EVEN WITH THE BEST OF INTENTIONS IN THE
WORLD THEY ARE, IN THE WELL-KNOWN PHRASE OF HOLMES AND HUGHES, JJ.,
"EXTREMELY LIKELY TO BE IMPREGNATED BY THE ENVIRONING ATMOSPHERE." 
FRANK V. MANGUM, 237 U.S. 309, 345, 349.  PRECISELY BECAUSE THE FEELING
OF THE OUTSIDE WORLD CANNOT, WITH THE UTMOST CARE, BE KEPT WHOLLY
OUTSIDE THE COURTROOM EVERY ENDEAVOR MUST BE TAKEN IN A CIVILIZED TRIAL
TO KEEP IT OUTSIDE.  TO HAVE THE PROSECUTOR HIMSELF FEED THE PRESS WITH
EVIDENCE THAT NO SELF-RESTRAINED PRESS OUGHT TO PUBLISH IN ANTICIPATION
OF A TRIAL IS TO MAKE THE STATE ITSELF THROUGH THE PROSECUTOR, WHO
WIELDS ITS POWER, A CONSCIOUS PARTICIPANT IN TRIAL BY NEWSPAPER,
INSTEAD OF BY THOSE METHODS WHICH CENTURIES OF EXPERIENCE HAVE SHOWN TO
BE INDISPENSABLE TO THE FAIR ADMINISTRATION OF JUSTICE.  SCIENCE WITH
ALL ITS ADVANCES HAS NOT GIVEN US INSTRUMENTS FOR DETERMINING WHEN THE
IMPACT OF SUCH NEWSPAPER EXPLOITATION HAS SPENT ITSELF OR WHETHER THE
POWERFUL IMPRESSION BOUND TO BE MADE BY SUCH INFLAMING ARTICLES AS HERE
PRECEDED THE TRIAL CAN BE DISSIPATED IN THE MIND OF THE AVERAGE JUROR
BY THE TAME AND OFTEN PEDESTRIAN PROCEEDINGS IN COURT.  MOREOVER, THE
SUPREME COURT OF CALIFORNIA FOUND THAT AT THE TIME OF THE PETITIONER'S
TRIAL "THERE WAS NOTORIOUS WIDESPREAD PUBLIC EXCITEMENT, SENSATIONALLY
EXPLOITED BY NEWSPAPER, RADIO AND TELEVISION, CONCERNING CRIMES AGAINST
CHILDREN AND DEFENDANT'S CRIME IN PARTICULAR." 

AND SO I CANNOT AGREE TO UPHOLD A CONVICTION WHICH AFFIRMATIVELY
TREATS NEWSPAPER PARTICIPATION INSTIGATED BY THE PROSECUTOR AS PART OF
"THE TRADITIONAL CONCEPT OF THE 'AMERICAN WAY OF THE CONDUCT OF A
TRIAL.'"  SUCH PASSION AS THE NEWSPAPERS STIRRED IN THIS CASE CAN BE
EXPLAINED (APART FROM MERE COMMERCIAL EXPLOITATION OF REVOLTING CRIME)
ONLY AS WANT OF CONFIDENCE IN THE ORDERLY COURSE OF JUSTICE.  TO ALLOW
SUCH USE OF THE PRESS BY THE PROSECUTION AS THE CALIFORNIA COURT HERE
LEFT UNDISCIPLINED, IMPLIES EITHER THAT THE ASCERTAINMENT OF GUILT
CANNOT BE LEFT TO THE ESTABLISHED PROCESSES OF LAW OR IMPATIENCE WITH
THOSE CALMER ASPECTS OF THE JUDICIAL PROCESS WHICH MAY NOT SATISFY THE
NATURAL, PRIMITIVE, POPULAR REVULSION AGAINST HORRIBLE CRIME BUT DO
VINDICATE THE SOBER SECOND THOUGHTS OF A COMMUNITY.  IF GUILT HERE IS
CLEAR, THE DIGNITY OF THE LAW WOULD BE BEST ENHANCED BY ESTABLISHING
THAT GUILT WHOLLY THROUGH THE PROCESSES OF LAW UNAIDED BY THE INFUSION
OF EXTRANEOUS PASSION.  THE MORAL HEALTH OF THE COMMUNITY IS
STRENGTHENED BY ACCORDING EVEN THE MOST MISERABLE AND PATHETIC CRIMINAL
THOSE RIGHTS WHICH THE CONSTITUTION HAS DESIGNED FOR ALL. 

AS TO ONE OTHER BRANCH OF THE COURT'S OPINION I MUST ENTER A CAVEAT. 
THIS CONCERNS THE LEGAL SIGNIFICANCE OF PETITIONER'S FIRST CONFESSION,
THE ONE MADE TO THE DISTRICT ATTORNEY.  THE CALIFORNIA SUPREME COURT
DISPOSED OF THE CLAIM THAT THIS WAS A COERCED CONFESSION BY ASSUMING
THAT IT WAS, BUT FINDING THAT THE FACT WAS IMMATERIAL BECAUSE OF LATER,
SO-CALLED VOLUNTARY CONFESSIONS.  I AGREE WITH MY BRETHREN THAT THIS
VIEW DISREGARDS OUR DECISION IN MALINSKI V. NEW YORK, 324 U.S. 401. 
BUT I CANNOT AGREE THAT, DESPITE THE REFUSAL OF THE CALIFORNIA SUPREME
COURT TO DETERMINE AFFIRMATIVELY THE LEGAL CHARACTER OF THIS FIRST
CONFESSION, THIS COURT MAY DO SO HERE ON ITS OWN INDEPENDENT
INTERPRETATION OF THE FACTS.  THAT CONCLUSION DOES NOT AT ALL FOLLOW
FROM THE FACT THAT WE MAKE SUCH A DETERMINATION, AT LEAST UPON THE
UNDISPUTED EVIDENCE, WHEN THE STATE COURT FINDS THE CONFESSION TO BE
FREE OF CONSTITUTIONAL DEFECT.  THE QUESTION WHETHER OR NOT A
CONFESSION IS COERCED INVOLVES A COMPLEX JUDGMENT UPON FACTS INEVITABLY
ENTANGLED WITH ASSUMPTIONS AND STANDARDS WHICH ARE PART AND PARCEL OF
THE ULTIMATE ISSUE OF CONSTITUTIONALITY.  SEE BAUMGARTNER V. UNITED
STATES, 322 U.S. 665, 670-671.  THE FINDING OF "FACT" THAT A CONFESSION
IS VOLUNTARY MAY INVOLVE THE APPLICATION OF IMPROPER STANDARDS TO THE
EVIDENCE, AND THUS THE DENIAL OF A CONSTITUTIONAL RIGHT OF THE
ACCUSED.   BUT A WHOLLY DIFFERENT SITUATION IS PRESENTED WHEN A STATE
COURT CONCLUDES THAT COERCION ENTERED INTO THE INEVITABLY COMPLICATED
FACTORS INCLUDED IN THE TOTALITY OF CIRCUMSTANCES THAT CONSTITUTES A
CONFESSION. 

MOREOVER, ITEMS OF EVIDENCE MAY BE UNDISPUTED, BUT NOT THEIR
MEANING.  "FACTS," EXCEPT THE MOST RUDIMENTARY, ARE NOT LIKE MEMBERS OF
A LODGE WHO IDENTIFY THEMSELVES BY BADGES.  WHEN A STATE COURT HAS
DENIED AN ASSERTED CONSTITUTIONAL RIGHT, THE STATE COURT CANNOT
FORECLOSE THIS COURT FROM CONSIDERING THE FEDERAL CLAIM MERELY BY
LABELLING ABSENCE OF COERCION A "FACT."  BUT IF A STATE COURT, READING
THE RECORD IN THE LIGHT OF ITS INTIMATE KNOWLEDGE OF LOCAL POLICE AND
PROSECUTORIAL METHODS, SHOULD CONCLUDE THAT A CONFESSION WAS COERCED, I
CANNOT BELIEVE THAT THIS COURT WOULD SET ASIDE THAT APPRAISAL AND
DECIDE INDEPENDENTLY THAT THE CONFESSION WAS WHOLLY FREE AND SELF
WILLED.  IT IS NOT FORTUITOUS THAT ALL THE CASES IN WHICH THIS COURT
HAS INDICATED THAT IT WAS NOT FORECLOSED BY THE DETERMINATION OF THE
STATE COURT HAVE BEEN CASES IN WHICH THE STATE REJECTED THE FEDERAL
CONSTITUTIONAL CLAIM BY FINDING THE CONFESSION VOLUNTARY. 

SINCE, AS I BELIEVE, AN AFFIRMATIVE DETERMINATION OF THE CALIFORNIA
SUPREME COURT THAT THE CONFESSION WAS COERCED WOULD NOT AND SHOULD NOT
BE REEXAMINED HERE, I WOULD, ON THIS ASPECT OF THE CASE, REMAND FOR
THAT COURT TO SAY WHETHER OR NOT, IN ITS JUDGMENT AND NOT AS AN
ASSUMPTION, THE FIRST CONFESSION WAS INVOLUNTARY.    MR. JUSTICE
DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS, DISSENTING. 

MY VIEWS ON THE ILLEGALITY OF CONFESSIONS OBTAINED BETWEEN THE TIME
OF ARREST AND ARRAIGNMENT ARE CONTAINED IN WATTS V. INDIANA, 338 U.S.
49, 56-57; TURNER V. PENNSYLVANIA, 338 U.S. 62, 66-67; HARRIS V. SOUTH
CAROLINA, 338 U.S. 68, 71-73.  THE PRACTICE OF OBTAINING CONFESSIONS
PRIOR TO ARRAIGNMENT BREEDS THE THIRD-DEGREE AND THE INQUISITION.  AS
LONG AS IT REMAINS LAWFUL FOR THE POLICE TO HOLD PERSONS INCOMMUNICADO,
COERCED CONFESSIONS WILL INFECT CRIMINAL TRIALS IN VIOLATION OF THE
COMMANDS OF DUE PROCESS OF LAW.    THE FACTS OF THIS CASE ILLUSTRATE
THE EVILS OF THIS POLICE PRACTICE.  WHILE THE DEFENDANT WAS BEING HELD
BY THE POLICE PRIOR TO HIS ARRAIGNMENT, A LAWYER TRIED TO SEE HIM.  THE
POLICE REFUSED THE LAWYER'S REPEATED REQUESTS.  IT WAS ONLY AFTER A
CONFESSION WAS OBTAINED THAT THE LAWYER WAS ALLOWED TO TALK WITH THE
PRISONER.  THIS WAS LAWLESS CONDUCT, CONDEMNED BY THE SUPREME COURT OF
CALIFORNIA.  IT WAS NOT ONLY LAWLESS CONDUCT; IT WAS CONDUCT THAT
PRODUCED A CONFESSION. 

THIS CONFESSION AS WELL AS SUBSEQUENTLY OBTAINED CONFESSIONS WERE
USED AT THE TRIAL.  THE FACT THAT THE LATER CONFESSIONS MAY HAVE BEEN
LAWFULLY OBTAINED OR USED IS IMMATERIAL.  FOR ONCE AN ILLEGAL
CONFESSION INFECTS THE TRIAL, THE VERDICT OF GUILTY MUST BE SET ASIDE
NO MATTER HOW FREE OF TAINT THE OTHER EVIDENCE MAY BE.  MALINSKY V. NEW
YORK, 324 U.S. 401. 

MOREOVER, THE FACT THAT THE ACCUSED STARTED TALKING SHORTLY AFTER HE
WAS ARRESTED AND PRIOR TO THE TIME HE WAS TAKEN BEFORE THE DISTRICT
ATTORNEY DOES NOT SAVE THE CASE.  THAT TALK WAS ACCOMPANIED OR PRECEDED
BY BLOWS AND KICKS OF THE POLICE; AND THE SUPREME COURT OF CALIFORNIA
ASSUMED THAT IT WAS PART AND PARCEL OF THE FIRST CONFESSION OBTAINED
THROUGH "PHYSICAL ABUSE OR PSYCHOLOGICAL TORTURE OR A COMBINATION OF
THE TWO." 
..END :


















UEBERSEE FINANZ-KORPORATION, A.G., V. MCGRATH 343 U.S. 205 


NO. 178.  ARGUED JANUARY 2, 1952 - DECIDED APRIL 7, 1952 - 88 U.S. APP.
D.C. 182, 191 F.2D 327, AFFIRMED IN PART. 


1.  PETITIONER, A SWISS CORPORATION, SUED IN THE DISTRICT COURT FOR
THE RETURN OF CERTAIN OF ITS PROPERTY VESTED IN 1942 BY THE ALIEN
PROPERTY CUSTODIAN UNDER THE TRADING WITH THE ENEMY ACT OF 1917, AS
AMENDED BY THE FIRST WAR POWERS ACT OF 1941.  PETITIONER WAS LARGELY
OWNED AND CONTROLLED BY A NATIONAL OF GERMANY, THROUGH A SON WITH WHOM
HE HAD A USUFRUCT AGREEMENT.  PETITIONER HAD BEEN ACQUIRED WITH
USUFRUCT PROPERTY FOR THE PURPOSE OF ENABLING THE FATHER TO CONTROL AND
USE HIS PROPERTY AS HE SAW FIT.  THE FATHER HAD AND USED THE SUBSTANCE,
WHILE THE SON HAD THE BARE LEGAL TITLE EXCEPT FOR A 20% INTEREST IN THE
INCOME OF THE USUFRUCT PROPERTY.  SUCH RIGHT AS THE SON HAD HE
EXERCISED OR FAILED TO EXERCISE IN COMPLETE SUBORDINATION TO THE WILL
OF THE FATHER.  HELD: BECAUSE OF DIRECT AND INDIRECT CONTROL AND
DOMINATION BY AN ENEMY NATIONAL, PETITIONER WAS AFFECTED WITH AN "ENEMY
TAINT" AND CANNOT RECOVER UNDER SEC. 9(A).  PP. 206-212. 

(A)  UNDER SEC. 9(A) OF THE ACT, ONE NOT AN "ENEMY," AS DEFINED IN
SEC. 2, CAN RECOVER ANY INTEREST, RIGHT, OR TITLE WHICH HE HAS IN
PROPERTY SO VESTED; BUT CORPORATIONS AFFECTED WITH AN "ENEMY TAINT" ARE
INCLUDED IN THE WORD "ENEMY."  CLARK V. UEBERSEE FINANZ-KORP., 332 U.S.
480.  PP. 211-212. 

(B) ACTUAL USE BY AN ENEMY-TAINTED CORPORATION OF ITS POWER IN
ECONOMIC WARFARE AGAINST THE UNITED STATES IS NOT THE CRUCIAL FACT IN
DETERMINING WHETHER VESTED PROPERTY MAY BE RETAINED BY THE CUSTODIAN
UNDER THE ACT.  IT IS THE EXISTENCE OF THAT POWER THAT IS CONTROLLING
AGAINST WHICH THE GOVERNMENT MAY MOVE.  P. 212. 

2.  AT THE END OF THE LITIGATION IN THE DISTRICT COURT, PETITIONER
SOUGHT TO HAVE THE CASE REOPENED FOR THE PURPOSE OF ASSERTING AND
ESTABLISHING THE NONENEMY STATUS OF THE SON OF THE ENEMY NATIONAL. 
BECAUSE OF FAILURE TO DILIGENTLY AND TIMELY ASSERT THE INTEREST OF THE
SON, THE DISTRICT COURT REFUSED TO REOPEN THE CASE FOR FURTHER
CONSIDERATION OF SUCH SEPARATE INTEREST.  HELD:  IN VIEW OF THE HOLDING
IN KAUFMAN V. SOCIETE INTERNATIONALE, DECIDED TODAY, ANTE, P. 156, THE
CAUSE IS REMANDED TO THE DISTRICT COURT FOR CONSIDERATION, IN THE LIGHT
OF THAT HOLDING AND THIS OPINION, OF ANY APPLICATION THAT MAY BE MADE
ON BEHALF OF THE SON WITHIN 30 DAYS FROM THE DATE OF REMAND.  HORMEL V.
HELVERING, 312 U.S. 552, APPLIED.  PP. 212-213. 

UEBERSEE FINANZ-KORPORATION, A.G., V. MCGRATH, ATTORNEY GENERAL,
SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

IN A SUIT BROUGHT BY PETITIONER TO RECOVER PROPERTY VESTED BY THE
ALIEN PROPERTY CUSTODIAN UNDER THE TRADING WITH THE ENEMY ACT, AS
AMENDED, THE DISTRICT COURT ENTERED JUDGMENT FOR THE CUSTODIAN.  82 F.
SUPP. 602.  THE COURT OF APPEALS AFFIRMED.  88 U.S. APP. D.C.  182, 191
F.2D 327.  THIS COURT GRANTED CERTIORARI.  342 U.S. 847.  AFFIRMED IN
PART AND VACATED AND REMANDED IN PART, P. 213. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

PETITIONER SUED IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FOR THE RETURN OF CERTAIN OF ITS PROPERTY VESTED BY THE ALIEN PROPERTY
CUSTODIAN IN 1942 UNDER THE TRADING WITH THE ENEMY ACT OF 1917, 40
STAT. 411, AS AMENDED BY THE FIRST WAR POWERS ACT, 1941, 55 STAT. 839. 
THE DISTRICT COURT FOUND FOR THE CUSTODIAN, 82 F. SUPP. 602, AND THE
COURT OF APPEALS AFFIRMED, 88 U.S. APP. D.C. 182, 191 F.2D 327.  WE
GRANTED CERTIORARI, 342 U.S. 847. 

THE FOLLOWING FACTS WERE FOUND BY THE DISTRICT COURT AND CONFIRMED BY
THE COURT OF APPEALS UPON AN ABUNDANCE OF EVIDENCE IN THE RECORD.  IN
1931, WILHELM VON OPEL, A CITIZEN AND RESIDENT NATIONAL OF GERMANY,
OWNED CERTAIN SHARES OF STOCK IN THE ADAM OPEL WORKS, A GERMAN
CORPORATION LARGELY OWNED BY GENERAL MOTORS CORPORATION.  WILHELM HAD
AN AGREEMENT WITH GENERAL MOTORS TO SELL HIS SHARES AT A PRICE.  IN
1931, HE BECAME ALARMED AT BUSINESS CONDITIONS IN GERMANY AND DESIRED
TO GET HIS STOCK OUT OF THE COUNTRY TO SAVE HIS INVESTMENT FOR HIMSELF
AND HIS FAMILY FROM THE ECONOMIC AND GOVERNMENTAL INFLUENCES THERE
PREVAILING.  IN THAT YEAR, HE AND HIS WIFE ENTERED INTO WHAT WAS KNOWN
UNDER GERMAN LAW AS A USUFRUCT AGREEMENT WITH THEIR ONLY SON, FRITZ,
WHO HAD NOT LIVED IN GERMANY SINCE 1929 AND FOR THAT REASON WAS NOT
SUBJECT TO THE GERMAN RESTRICTIONS UPON THE HANDLING OF THIS PROPERTY. 
BY THIS AGREEMENT, WILHELM'S TITLE TO THE SHARES IN THE ADAM OPEL WORKS
WAS TRANSFERRED TO FRITZ.  THE INSTRUMENT PROVIDED AS FOLLOWS: 

"THE USUFRUCT IN THE SHARES IS NOT ASSIGNED TO FRITZ VON OPEL.  IT
REMAINS WITH WILHELM VON OPEL AND HIS WIFE  ...  UNTIL THE DEATH OF THE
SURVIVOR OF THEM.  HOWEVER, 20% OF ALL DIVIDENDS AND INTEREST RECEIVED
WILL ACCRUE TO FRITZ VON OPEL." 

THE INSTRUMENT PROVIDED FURTHER THAT IF FRITZ DIED BEFORE HIS PARENTS
AND WITHOUT ISSUE, THE TRANSFER WAS TO BE VOID AND WAS TO REVERT TO HIS
PARENTS, THE TRANSFERORS.  IF THE PARENTS DIED BEFORE FRITZ, HE WAS TO
HAVE THE PROPERTY AS AN ADVANCEMENT, TO BE DEDUCTED FROM HIS SHARE IN
HIS PARENTS' ESTATE.  THE USUFRUCT INCOME NOT DRAWN BY THE PARENTS WAS
ALSO TO BE ACCOUNTED FOR BY FRITZ AS AN ADVANCEMENT. 

AFTER MUCH EXPERT TESTIMONY, THE DISTRICT COURT FOUND THE LAW OF
GERMANY PERTAINING TO SUCH USUFRUCT AGREEMENT TO BE AS FOLLOWS: 

"52.  A RIGHT OF USUFRUCT, ONCE ESTABLISHED, IS UNDER GERMAN LAW AN
IN REM RIGHT IN PROPERTY.  A PERSON HAVING A USUFRUCT IN PROPERTY HAS A
RIGHT: 

"(A) TO THE ENJOYMENT OF THE PROPERTY OR, IN THE CASE OF MONEY OR
SECURITIES, TO THE INCOME FROM THE SECURITIES: 

"(B) TO CO-POSSESSION OF THE PROPERTY TOGETHER WITH THE PERSON
HOLDING LEGAL TITLE TO THE PROPERTY: 

"(C) TO A VOICE IN THE MANAGEMENT OF THE PROPERTY INSOFAR AS THE
MAINTENANCE AND PRESERVATION OF THE USUFRUCTUARY'S RIGHTS UNDER
SUBSECTION (A) ABOVE ARE CONCERNED: 

"(D) TO PREVENT THE SALE OR DISPOSITION OF THE PROPERTY AS A RESULT
OF HIS RIGHT TO CO-POSSESSION:

"(E) THE GERMAN CIVIL CODE DOES NOT MENTION WHETHER THE USUFRUCTUARY,
FOR THE PROTECTION OF HIS INCOME, HAS ANY VOTING RIGHTS.  IN THE
ABSENCE OF A DECIDED CASE THE LEGAL COMMENTARIES SPECULATE IN THREE
DIFFERENT DIRECTIONS.  ONE POSITION IS THAT THE TITLE OWNER HAS ALL
VOTING RIGHTS AND THE USUFRUCTUARY NO VOTING RIGHTS WHATSOEVER.  THE
SECOND POSITION IS THAT THE TITLE OWNER HAS A VOTING RIGHT FOR ALL
MEASURES WHICH HAVE NOTHING TO DO WITH INCOME WHILE THE USUFRUCTUARY
CAN VOTE IN REGARD TO INCOME.  THE THIRD POSITION IS THAT THE
USUFRUCTUARY HAS ALL THE VOTING RIGHTS."  R. 60-61; 82 F. SUPP. 602,
605. 

UNDER THIS AGREEMENT, WILHELM AND HIS WIFE HAD A USUFRUCT IN THE ADAM
OPEL STOCK TRANSFERRED TO FRITZ.  THE LATTER, ON OCTOBER 17, 1931, SOLD
THE USUFRUCT PROPERTY TO GENERAL MOTORS, IN ACCORDANCE WITH THE
CONTRACT WHICH WILHELM HAD WITH THAT COMPANY.  IN ORDER TO PROTECT THE
SEVERAL INTERESTS INVOLVED, THE PROCEEDS OF THE SALE WERE TRANSFERRED
TO PETITIONER, A SWISS CORPORATION ACQUIRED BY FRITZ FOR THIS PURPOSE. 
EVENTUALLY THESE FUNDS WERE USED TO PURCHASE STOCKS, LATER TRANSFERRED
TO PETITIONER, IN CORPORATIONS ORGANIZED UNDER THE VARIOUS STATES OF
THE UNITED STATES, FROM WHICH DERIVED THE STOCKS VESTED BY THE ALIEN
PROPERTY CUSTODIAN.  FRITZ OWNED 97% OF THE STOCK OF PETITIONER.  UNDER
THE GERMAN LAW, AS FOUND BY THE DISTRICT COURT, A USUFRUCTUARY MAY
FOLLOW THE ASCERTAINABLE PROCEEDS OF THE ORIGINAL PROPERTY SUBJECT TO
THE USUFRUCT.  THEREFORE, THE STOCKS PURCHASED BY PETITIONER WITH THE
PROCEEDS OF THE SALE OF THE USUFRUCT PROPERTY WERE SUBJECT TO AND WERE
TREATED AS SUBJECT TO THE USUFRUCT AGREEMENT. 

ON JUNE 7, 1935, FRITZ PLACED ALL BUT THREE SHARES OF THE CAPITAL
STOCK OF PETITIONER IN A SAFETY DEPOSIT BOX IN ZURICH, SWITZERLAND, AND
GAVE THE KEY THERETO TO HANS FRANKENBERG, WHO RECEIVED IT AS AGENT OF
WILHELM VON OPEL.  FRANKENBURG HAD BECOME THE MANAGING DIRECTOR OF
PETITIONER AT WILHELM'S REQUEST IN 1932, AND EXERCISED CONTROL OVER
PETITIONER'S INVESTMENTS UNTIL THE VESTING OF THE PROPERTY HEREIN
INVOLVED.  BY THE DELIVERY TO WILHELM'S AGENT OF THE KEY TO THE BOX
CONTAINING PETITIONER'S STOCK, THERE WAS THUS TRANSFERRED TO WILHELM
POSSESSION OF THE RES, SUBJECT TO THE USUFRUCT; AND THE USUFRUCT
AGREEMENT WAS THEREBY CONSUMMATED.  FRITZ ALSO ENGAGED IN ACTIVITIES ON
BEHALF OF PETITIONER CONCERNING ITS INVESTMENT, BUT UNDER THE GUIDANCE
OF WILHELM OR HIS AGENT, FRANKENBERG. 

NEITHER WILHELM NOR HIS WIFE EVER DREW ANY INCOME FROM THE USUFRUCT. 
AN OIL LEASE OWNED BY ONE OF THE AMERICAN CORPORATIONS WHOSE STOCK WAS
PURCHASED WITH PROCEEDS FROM THE SALE OF THE ADAM OPEL SHARES TO
GENERAL MOTORS, WAS SOLD, AND THE PROCEEDS OF THAT SALE USED TO PAY A
FINE OF WILHELM IN GERMANY.  EXPENSES OF A TRIP BY WILHELM TO SOUTH
AMERICA AND ONE TO HUNGARY WERE PAID BY PETITIONER AND CHARGED AGAINST
THE INCOME ACCOUNT OF FRITZ. 

PETITIONER OWNED ALL THE STOCK OF A SUBSIDIARY HUNGARIAN CORPORATION
ENGAGED IN THE MINING OF BAUXITE IN HUNGARY, AND IN 1939 AND 1940
GUARANTEED A LOAN BY A SWISS BANK TO THIS CORPORATION FOR ITS
OPERATIONS.  THE LOAN WAS REPAID IN NOVEMBER 1942.  THE UNITED STATES
WAS AT WAR WITH HUNGARY FROM DECEMBER 13, 1941.  DURING OCTOBER,
NOVEMBER, AND DECEMBER 1941, THE HUNGARIAN CORPORATION SHIPPED BAUXITE
TO GERMANY AND HAD A CONTRACT TO DO SO UNTIL THE END OF 1942. 

IN 1942, THE ALIEN PROPERTY CUSTODIAN VESTED THE STOCKS HELD BY
PETITIONER IN SEVERAL AMERICAN CORPORATIONS AND ALL THE RIGHT, TITLE,
AND INTEREST OF PETITIONER IN AND TO A CERTAIN CONTRACT WITH ANOTHER
AMERICAN CORPORATION.  ALL OF THE STOCKS HAD BEEN ACQUIRED FROM THE
PROCEEDS OF THE ORIGINAL USUFRUCT PROPERTY. 

FROM OCTOBER 5, 1931, THE DATE OF THE USUFRUCT AGREEMENT, THE
USUFRUCT PROPERTY WAS CONTROLLED, USED, AND IN ALL WAYS HANDLED AND
DIRECTED BY WILHELM AND HIS MANAGING AGENTS.  THE INTEREST OF FRITZ IN
PETITIONER WAS WHOLLY SUBORDINATED TO THAT OF WILHELM.  FRITZ HAD THE
BARE LEGAL TITLE AND THE RIGHT TO 20% OF THE INCOME FROM THE PROPERTY. 
WILHLEM IS NOW DEAD.  HIS WIFE, A DAUGHTER, AND THE SON, FRITZ, STILL
SURVIVE. 

PETITIONER WAS IN THIS COURT ON THE PLEADINGS IN THIS CASE IN CLARK
V. UEBERSEE FINANZ-KORP., A.G., 332 U.S. 480.  THERE, IT WAS ALLEGED IN
THE COMPLAINT THAT PETITIONER WAS NOT AN ENEMY OR ALLY OF AN ENEMY, AND
THAT AT NO TIME SPECIFIED IN THE COMPLAINT HAD THE PROPERTY IN QUESTION
BEEN OWNED OR CONTROLLED, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART,
BY AN ENEMY, AN ALLY OF AN ENEMY, OR A NATIONAL OF A DESIGNATED ENEMY
COUNTRY; THAT NONE OF THE PROPERTY HAD BEEN OWING OR BELONGING TO OR
HELD ON ACCOUNT OF OR FOR THE BENEFIT OF ANY SUCH PERSON OR INTEREST. 
THIS COURT CONSTRUED THESE ALLEGATIONS "TO MEAN THAT THE PROPERTY IS
FREE OF ALL ENEMY TAINT AND PARTICULARLY THAT THE CORPORATIONS WHOSE
SHARES HAVE BEEN SEIZED, THE CORPORATIONS WHICH HAVE A CONTRACT IN
WHICH RESPONDENT HAS AN INTEREST, AND RESPONDENT ITSELF, ARE COMPANIES
IN WHICH NO ENEMY, ALLY OF AN ENEMY, NOR ANY NATIONAL OF EITHER HAS ANY
INTEREST OF ANY KIND WHATSOEVER, AND THAT RESPONDENT HAS NOT DONE
BUSINESS IN THE TERRITORY OF THE ENEMY OR ANY ALLY OF AN ENEMY."  P.
482.  THE COMPLAINT ALLEGING SUCH FACTS WAS HELD TO BE SUFFICIENT AS
AGAINST A MOTION TO DISMISS, AND THE CASE WAS SENT BACK FOR TRIAL. 
UPON THE TRIAL, THE FACTS WERE FOUND AS ABOVE STATED. 

HOWEVER, FROM THE FACTS FOUND, IT IS CLEAR THAT PETITIONER FOR ALL
PRACTICAL PURPOSES WAS, TO THE EXTENT OF 97%, LARGELY OWNED, MANAGED,
USED, AND CONTROLLED BY WILHELM VON OPEL, A NATIONAL OF GERMANY.  THE
FINDINGS DEMONSTRATE THAT PETITIONER WAS A CORPORATE HOLDING COMPANY
ACQUIRED FOR THE PURPOSE OF ENABLING WILHELM TO CONTROL AND USE HIS
PROPERTY AS HE SAW FIT.  HIS INTEREST WAS PARAMOUNT AND CONTROLLING. 
THE INTEREST OF FRITZ WAS WHOLLY AND IN REALITY SUBORDINATED TO
WILHELM'S, EXCEPT AS TO THE RIGHT OF FRITZ TO RECEIVE 20% OF THE INCOME
FROM THE USUFRUCT PROPERTY.  PETITIONER WAS NEUTRAL IN NAME ONLY.  ITS
ENEMY TAINT WAS ALL BUT COMPLETE BECAUSE OF THE PREDOMINANT INFLUENCE
AND CONTROL OF WILHELM.  WILHELM HAD AND USED THE SUBSTANCE, WHILE
FRITZ HAD THE BARE LEGAL TITLE; AND SUCH RIGHT AS THIS GAVE FRITZ, HE
EXERCISED OR FAILED TO EXERCISE IN COMPLETE SUBORDINATION TO THE WILL
OF HIS FATHER.  WE AGREE WITH THE COURT OF APPEALS WHEN IT SAID: 

"THIS CASE DOES NOT INVOLVE A DILUTED 'TAINT'; IT INVOLVES THE
OWNERSHIP BY ENEMY NATIONALS OF THE ECONOMIC BENEFITS OF AMERICAN
BUSINESS."  88 U.S. APP. D.C. AT 183, 191 F.2D AT 328. 

BEFORE 1941 THE PROPERTY HERE INVOLVED COULD NOT HAVE BEEN VESTED,
BECAUSE THIS PETITIONER WAS A CORPORATION OF A NEUTRAL COUNTRY,
SWITZERLAND, UNLESS SUCH CORPORATION WAS SHOWN TO BE DOING BUSINESS IN
AN ENEMY COUNTRY OR IN THE COUNTRY OF AN ALLY OF AN ENEMY.  BEHN, MEYER
& CO. V. MILLER, 266 U.S. 457; CLARK V. UEBERSEE FINANZ-KORP., A.G.,
SUPRA.  BUT ON DECEMBER 18, 1941, CONGRESS AMENDED THE TRADING WITH THE
ENEMY ACT BY THE PASSAGE OF THE FIRST WAR POWERS ACT, 1941, 55 STAT.
839, AND GAVE RESPONDENT POWER TO VEST ANY PROPERTY OR INTEREST OF ANY
FOREIGN COUNTRY OR NATIONAL THEREOF IN SAID PROPERTY.  HOWEVER, UNDER
SEC. 9(A) OF THE TRADING WITH THE ENEMY ACT, ONE NOT AN ENEMY, AS
DEFINED IN SEC. 2 OF SAID ACT, CAN RECOVER ANY INTEREST, RIGHT, OR
TITLE WHICH HE HAS IN THE PROPERTY SO VESTED.  AS CONSTRUED BY THIS
COURT IN CLARK V. UEBERSEE FINANZ-KORP., A.G., SUPRA, SEC. 2 INCLUDED
IN THE WORD "ENEMY" ALL CORPORATIONS AFFECTED WITH AN "ENEMY TAINT." 
SINCE WE FIND PETITIONER TO BE SO AFFECTED BECAUSE OF THE DIRECT AND
INDIRECT CONTROL AND DOMINATION BY AN ENEMY NATIONAL, WILHELM VON OPEL,
PETITIONER CANNOT RECOVER UNDER SEC. 9(A). 

IT IS SUGGESTED THAT VESTED PROPERTY MUST BE RETURNED UNLESS THERE IS
PROOF OF ACTUAL USE OF THE PROPERTY FOR ECONOMIC WARFARE AGAINST THE
UNITED STATES.  THE CRUCIAL FACT IS NOT THE ACTUAL USE BY AN ENEMY
TAINTED CORPORATION OF ITS POWER IN ECONOMIC WARFARE AGAINST THE UNITED
STATES.  IT IS THE EXISTENCE OF THAT POWER THAT IS CONTROLLING AND
AGAINST WHICH THE GOVERNMENT OF THE UNITED STATES MAY MOVE.  THE
GOVERNMENT DOES NOT HAVE TO WAIT FOR THE ENEMY TO DO ITS WORST BEFORE
IT ACTS.  CF. MILLER V. UNITED STATES, 11 WALL.  268 AT 306. 

AS THE DISTRICT COURT SAID, IT WOULD BE DIFFICULT "TO FIND A STRONGER
CASE OF ENEMY TAINT IN VESTED PROPERTY SHORT OF FULL OWNERSHIP BY AN
ENEMY THAN EXISTS IN THIS CASE.  THE NEUTRAL ASPECT OF OWNERSHIP IN THE
PROPERTY IS INSIGNIFICANT  ...  ."  82 F. SUPP.  AT 606. 

IN VIEW OF THE DECISION TODAY IN KAUFMAN V. SOCIETE INTERNATIONALE,
ANTE, P. 156, CONSIDERATION MUST BE GIVEN TO AN EFFORT OF PETITIONER TO
OPEN THE CASE FOR THE ASSERTION OF THE RIGHTS OF FRITZ VON OPEL. 

PETITIONER ATTEMPTED AT THE END OF THE LITIGATION IN THE DISTRICT
COURT TO HAVE THE CASE REOPENED FOR THE PURPOSE OF ASSERTING AND
ESTABLISHING THE NONENEMY STATUS OF FRITZ VON OPEL.  BECAUSE OF THE
FAILURE TO DILIGENTLY AND TIMELY ASSERT THE INTEREST OF FRITZ, THE
DISTRICT COURT REFUSED TO REOPEN THE CASE FOR FURTHER CONSIDERATION OF
SUCH SEPARATE INTEREST. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED AS TO PETITIONER,
BUT IN VIEW OF THE NOVEL HOLDING IN KAUFMAN, THE COURT IS OF THE
OPINION THAT ITS DECISION IN HORMEL V. HELVERING, 312 U.S. 552, IS
APPLICABLE.  WE ACCORDINGLY VACATE THE JUDGMENT OF THE COURT BELOW AND
REMAND THE CAUSE TO THE DISTRICT COURT FOR CONSIDERATION, IN THE LIGHT
OF KAUFMAN AND THIS OPINION, OF ANY APPLICATION THAT MAY BE MADE ON
BEHALF OF FRITZ VON OPEL WITHIN 30 DAYS FROM THE DATE OF REMAND, AND IN
ALL OTHER RESPECTS THE JUDGMENT IS AFFIRMED.  IT IS SO ORDERED.    MR.
JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS
CASE. 
..END :

















RAY V. BLAIR 343 U.S. 154 


NO. 649.  ARGUED MARCH 31, 1952 - DECIDED APRIL 3, 1952 - 257 ALA. - ,
57 SO. 2D 395, REVERSED. 


ARTICLE II, SEC. 1, AND THE TWELFTH AMENDMENT OF THE CONSTITUTION DO
NOT COMPEL ISSUANCE OF THE ORDER ENTERED BY AN ALABAMA STATE COURT IN
THIS MANDAMUS PROCEEDING DIRECTING PETITIONER, AS CHAIRMAN OF THE STATE
DEMOCRATIC EXECUTIVE COMMITTEE OF ALABAMA, TO CERTIFY TO THE SECRETARY
OF STATE OF ALABAMA THE NAME OF RESPONDENT AS A CANDIDATE FOR
NOMINATION FOR PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTOR IN THE
PRIMARY ELECTION OF THE DEMOCRATIC PARTY TO BE HELD ON MAY 6, 1952. 
PP. 154-155. 

RAY, CHAIRMAN OF THE STATE DEMOCRATIC EXECUTIVE COMMITTEE OF ALABAMA, V.
BLAIR. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM. 

IN THIS PROCEEDING, AN ALABAMA CIRCUIT COURT ENTERED AN ORDER
DIRECTING PETITIONER TO CERTIFY TO THE SECRETARY OF STATE OF ALABAMA
THE NAME OF RESPONDENT AS A CANDIDATE FOR NOMINATION FOR PRESIDENTIAL
AND VICE-PRESIDENTIAL ELECTOR IN THE PRIMARY ELECTION OF THE DEMOCRATIC
PARTY TO BE HELD ON MAY 6, 1952.  THE ALABAMA SUPREME COURT AFFIRMED ON
THE SINGLE GROUND THAT THE ORDER WAS COMPELLED BY ARTICLE II, SECTION 1
AND THE TWELFTH AMENDMENT OF THE UNITED STATES CONSTITUTION. 

PETITIONER APPLIED TO THIS COURT FOR A STAY OF THE JUDGMENTS AND
MANDATES OF THE ALABAMA COURTS AND FILED A PETITION FOR WRIT OF
CERTIORARI TO REVIEW THE JUDGMENT OF THE ALABAMA SUPREME COURT.  ON
MARCH 24, 1952, WE GRANTED CERTIORARI AND ORDERED THE JUDGMENTS AND
MANDATES OF THE COURTS BELOW STAYED PENDING FURTHER CONSIDERATION AND
DISPOSITION OF THE CASE BY THIS COURT.  THE CASE WAS ASSIGNED FOR
ARGUMENT ON THE STAY AS WELL AS THE MERITS ON MARCH 31, 1952.  343 U.S.
901. 

THE QUESTION RAISED IN THIS CASE HAS BEEN THOROUGHLY BRIEFED AND
ARGUED.  THE COURT HAS FULLY CONSIDERED THE QUESTION AND HAS REACHED
ITS CONCLUSION.  IT NOW ANNOUNCES ITS DECISION AND ENTERS ITS JUDGMENT
IN ADVANCE OF THE PREPARATION OF A FULL OPINION WHICH, WHEN PREPARED,
WILL BE FILED WITH THE CLERK.  (SEE POST, P. 214.) 

THE COURT HOLDS THAT ARTICLE II, SECTION 1 AND THE TWELFTH AMENDMENT
OF THE CONSTITUTION DO NOT COMPEL ISSUANCE OF THE ORDER AND JUDGMENT
ENTERED BELOW. 

THE JUDGMENT BELOW IS REVERSED.  THE MANDATE OF THIS COURT IS
DIRECTED TO ISSUE FORTHWITH.  REVERSED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON DISSENT. 

MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :


















RAY V. BLAIR 343 U.S. 214 


NO. 649.  ARGUED MARCH 31, 1952 - DECIDED APRIL 3.  1952 - OPINIONS
FILED APRIL 15, 1952 - 257 ALA, - , 57 SO. 2D 395, REVERSED. 


WHERE A STATE AUTHORIZES A POLITICAL PARTY TO CHOOSE ITS NOMINEES FOR
PRESIDENTIAL ELECTORS IN A STATE-CONTROLLED PARTY PRIMARY ELECTION AND
TO FIX THE QUALIFICATIONS FOR THE CANDIDATES, IT IS NOT VIOLATIVE OF
THE FEDERAL CONSTITUTION FOR THE PARTY TO REQUIRE THE CANDIDATES FOR
THE OFFICE OF PRESIDENTIAL ELECTOR TO TAKE A PLEDGE TO SUPPORT THE
NOMINEES OF THE PARTY'S NATIONAL CONVENTION FOR PRESIDENT AND VICE
PRESIDENT OR FOR THE PARTY'S OFFICERS TO REFUSE TO CERTIFY AS A
CANDIDATE FOR PRESIDENTIAL ELECTOR A PERSON OTHERWISE QUALIFIED WHO
REFUSES TO TAKE SUCH A PLEDGE.  PP. 215-231. 

1.  PRESIDENTIAL ELECTORS EXERCISE A FEDERAL FUNCTION IN BALLOTING
FOR PRESIDENT AND VICE-PRESIDENT, BUT THEY ARE NOT FEDERAL OFFICERS. 
THEY ACT BY AUTHORITY OF THE STATE WHICH IN TURN RECEIVES ITS AUTHORITY
FROM THE FEDERAL CONSTITUTION.  PP. 224-225. 

2.  EXCLUSION OF A CANDIDATE IN A PARTY PRIMARY BY A STATE OR
POLITICAL PARTY BECAUSE SUCH CANDIDATE WILL NOT PLEDGE TO SUPPORT THE
PARTY'S NOMINEES IS A METHOD OF SECURING PARTY CANDIDATES IN THE
GENERAL ELECTION WHO ARE PLEDGED TO THE PHILOSOPHY AND LEADERSHIP OF
THAT PARTY; AND IT IS AN EXERCISE OF THE STATE'S RIGHT UNDER ART. II,
SEC. 1, TO APPOINT ELECTORS IN SUCH MANNER AS IT MAY CHOOSE.  UNITED
STATES V. CLASSIC, 313 U.S. 299, AND SMITH V. ALLWRIGHT, 321 U.S. 649,
DISTINGUISHED.  PP. 225-227. 

3.  THE TWELFTH AMENDMENT DOES NOT BAR A POLITICAL PARTY FROM
REQUIRING OF A CANDIDATE FOR PRESIDENTIAL ELECTOR IN ITS PRIMARY A
PLEDGE TO SUPPORT THE NOMINEES OF ITS NATIONAL CONVENTION.  PP. 228
231. 

4.  THE REQUIREMENT OF SUCH A PLEDGE DOES NOT DENY EQUAL PROTECTION
OR DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.  NIXON V. HERNDON, 273
U.S. 536, DISTINGUISHED.  P. 226, N. 14. 

RAY, CHAIRMAN OF THE STATE DEMOCRATIC EXECUTIVE COMMITTEE OF ALABAMA, V.
BLAIR. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

THE ALABAMA SUPREME COURT UPHELD, ON FEDERAL CONSTITUTIONAL GROUNDS,
A PEREMPTORY WRIT OF MANDAMUS REQUIRING PETITIONER, THE CHAIRMAN OF THE
STATE EXECUTIVE COMMITTEE OF THE DEMOCRATIC PARTY, TO CERTIFY
RESPONDENT AS A CANDIDATE FOR PRESIDENTIAL ELECTOR IN A DEMOCRATIC
PRIMARY WHICH WAS TO BE HELD ON MAY 6, 1952.  257 ALA. - , 57 SO. 2D
395.  THIS COURT GRANTED CERTIORARI.  343 U.S. 901.  IN A PER CURIAM
DECISION ANNOUNCED ON APRIL 3, 1952, IN ADVANCE OF THE PREPARATION OF
THIS OPINION, THIS COURT REVERSED THAT JUDGMENT.  343 U.S. 154.  THIS
OPINION STATES THE REASONS FOR THAT DECISION. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE SUPREME COURT OF ALABAMA UPHELD A PEREMPTORY WRIT OF MANDAMUS
REQUIRING THE PETITIONER, THE CHAIRMAN OF THAT STATE'S EXECUTIVE
COMMITTEE OF THE DEMOCRATIC PARTY, TO CERTIFY RESPONDENT EDMUND BLAIR,
A MEMBER OF THAT PARTY, TO THE SECRETARY OF STATE OF ALABAMA AS A
CANDIDATE FOR PRESIDENTIAL ELECTOR IN THE DEMOCRATIC PRIMARY TO BE HELD
MAY 6, 1952.  RESPONDENT BLAIR WAS ADMITTEDLY QUALIFIED AS A CANDIDATE
EXCEPT THAT HE REFUSED TO INCLUDE THE FOLLOWING QUOTED WORDS IN THE
PLEDGE REQUIRED OF PARTY CANDIDATES - A PLEDGE TO AID AND SUPPORT "THE
NOMINEES OF THE NATIONAL CONVENTION OF THE DEMOCRATIC PARTY FOR
PRESIDENT AND VICE-PRESIDENT OF THE UNITED STATES."  THE CHAIRMAN'S
REFUSAL OF CERTIFICATION WAS BASED ON THAT OMISSION. 

THE MANDAMUS WAS APPROVED ON THE SOLE GROUND THAT THE ABOVE
REQUIREMENT RESTRICTED THE FREEDOM OF A FEDERAL ELECTOR TO VOTE IN HIS
ELECTORAL COLLEGE FOR HIS CHOICE FOR PRESIDENT.  257 ALA. - , 57 SO. 2D
395.  THE PLEDGE WAS HELD VOID AS UNCONSTITUTIONAL UNDER THE TWELFTH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES.  (FN1)  BECAUSE THE
MANDAMUS WAS BASED ON THIS FEDERAL RIGHT SPECIALLY CLAIMED BY
RESPONDENT, WE GRANTED CERTIORARI.  28 U.S.C.  SEC. 1257(3); 343 U.S.
901. 

ON ACCOUNT OF THE LIMITED TIME BEFORE THE PRIMARY ELECTION DATE, THIS
COURT ORDERED PROMPT ARGUMENT ON MARCH 31, 1952, AFTER GRANTING
CERTIORARI AND HANDED DOWN A PER CURIAM DECISION ON APRIL 3, 343 U.S.
154, STATING SUMMARILY OUR CONCLUSION ON THE FEDERAL CONSTITUTIONAL
ISSUE THAT DETERMINED THE ALABAMA JUDGMENT.  THIS OPINION IS TO
SUPPLEMENT THAT STATEMENT.  OUR MANDATE ISSUED FORTHWITH. 

THE CONTROVERSY AROSE UNDER THE ALABAMA LAWS PERMITTING PARTY
PRIMARIES.  TITLE 17 OF THE CODE OF ALABAMA, 1940, AS AMENDED, PROVIDES
FOR REGULAR OPTIONAL PRIMARY ELECTIONS IN THAT STATE ON THE FIRST
TUESDAY IN MAY OF EVEN YEARS BY ANY POLITICAL PARTY, AS DEFINED IN THE
CHAPTER, AT STATE COST.   SECS.  336, 337, 340, 343.  THEY ARE SUBJECT
TO THE SAME PENALTIES AND PUNISHMENT PROVISIONS AS REGULAR STATE
ELECTIONS.  SEC. 339.  PARTIES MAY SELECT THEIR OWN COMMITTEE IN SUCH
MANNER AS THE GOVERNING AUTHORITY OF THE PARTY MAY DESIRE.  SEC. 341. 
SHALL CERTIFY THE CANDIDATES OTHER THAN THOSE WHO ARE CANDIDATES FOR
COUNTY OFFICES TO THE SECRETARY OF STATE OF ALABAMA.  THAT OFFICIAL,
WITHIN NOT LESS THAN 30 DAYS PRIOR TO THE TIME OF HOLDING THE PRIMARY
ELECTIONS, SHALL CERTIFY THESE NAMES TO THE PROBATE JUDGE OF ANY COUNTY
HOLDING AN ELECTION. 

EVERY STATE EXECUTIVE COMMITTEE IS GIVEN THE POWER TO FIX POLITICAL
OR OTHER QUALIFICATIONS OF ITS OWN MEMBERS.  IT MAY DETERMINE WHO SHALL
BE ENTITLED AND QUALIFIED TO VOTE IN THE PRIMARY ELECTION OR TO BE A
CANDIDATE THEREIN.  THE QUALIFICATIONS OF VOTERS AND CANDIDATES MAY
VARY.  (FN2) 

WITH THE EXECUTIVE COMMITTEE IN THE FORM PRESCRIBED BY THE GOVERNING
BODY OF THE PARTY.  THERE IS A PROVISION, SEC. 350, WHICH READS AS
FOLLOWS:  "AT THE BOTTOM OF THE BALLOT AND AFTER THE NAME OF THE LAST
CANDIDATE SHALL BE PRINTED THE FOLLOWING, VIZ:  'BY CASTING THIS BALLOT
I DO PLEDGE MYSELF TO ABIDE BY THE RESULT OF THIS PRIMARY ELECTION AND
TO AID AND SUPPORT ALL THE NOMINEES THEREOF IN THE ENSUING GENERAL
ELECTION.'" 

ON CONSIDERATION OF THESE SECTIONS IN OTHER CASES THE SUPREME COURT
OF ALABAMA HAS REACHED CONCLUSIONS GENERALLY CONFORMABLE TO THE CURRENT
OF AUTHORITY.  SECTION 347 HAS BEEN SAID BY THE SUPREME COURT OF
ALABAMA IN RAY V. GARNER, 257 ALA. - , 57 SO. 2D 824, 826, DECIDED
MARCH 27, 1952, TO GIVE FULL POWER TO THE STATE EXECUTIVE COMMITTEE TO
DETERMINE "WHO SHALL BE ENTITLED AND QUALIFIED TO VOTE IN PRIMARY
ELECTIONS OR BE CANDIDATES OR OTHERWISE PARTICIPATE THEREIN  ...  JUST
SO SUCH COMMITTEE ACTION DOES NOT RUN AFOUL OF SOME STATUTORY OR
CONSTITUTIONAL PROVISION." 

THE GARNER CASE INVOLVED A PLEDGE ADOPTED BY THE STATE DEMOCRATIC
EXECUTIVE COMMITTEE FOR PRINTING ON THE PRIMARY BALLOT, READING AS
FOLLOWS: 

"BY CASTING THIS BALLOT I DO PLEDGE MYSELF TO ABIDE BY THE RESULT OF
THIS PRIMARY ELECTION AND TO AID AND SUPPORT ALL THE NOMINEES THEREOF
IN THE ENSUING GENERAL ELECTIONS.  I DO FURTHER PLEDGE MYSELF TO AID
AND SUPPORT THE NOMINEES OF THE NATIONAL CONVENTION OF THE DEMOCRATIC
PARTY FOR PRESIDENT AND VICE-PRESIDENT OF THE UNITED STATES."  257
ALA., AT - , 57 SO. 2D, AT 825. 

THIS IS SUBSTANTIALLY THE SAME PLEDGE THAT CREATED THE CONTROVERSY IN
THIS PRESENT CASE.  THE COURT ALSO CALLED ATTENTION APPROVINGLY TO LETT
V. DENNIS, 221 ALA. 432, 433, 129 SO. 33, 34, A CASE THAT REQUIRED A
CANDIDATE IN THE PRIMARY TO FOLLOW A PARTY REQUIREMENT AND MAKE A
PUBLIC OATH AS TO HIS VOTE IN THE PAST GENERAL ELECTION, WHERE IT WAS
DECLARED "A TEST BY A POLITICAL ORGANIZATION OF PARTY AFFILIATION AND
PARTY FEALTY IS REASONABLE AND PROPER TO BE PRESCRIBED FOR THOSE
PARTICIPATING IN ITS PRIMARY ELECTIONS FOR NOMINATION OF CANDIDATES FOR
OFFICE."  (FN3)  AS TO THE POWER TO PRESCRIBE TESTS FOR PARTICIPATION
IN PRIMARY ELECTIONS, IT WAS ADDED IN THE GARNER CASE THAT "IN ALABAMA
THIS PREROGATIVE IS VESTED IN THE STATE PARTY EXECUTIVE COMMITTEE,
ACTING THROUGH ITS DULY ELECTED OR CHOSEN MEMBERS.  SMITH V. MCQUEEN,
232 ALA. 90, 166 SO. 788."  (FN4)  257 ALA., AT - , 57 SO. 2D, AT 826. 
THE MCQUEEN CASE INVOLVED THE SELECTION OF DELEGATES TO A NATIONAL
POLITICAL CONVENTION.  IT WAS ALSO SAID IN RAY V. GARNER CONCERNING THE
VOTER'S PLEDGE THAT: 

"PRIMARILY, THE PLEDGE MUST BE GERMANE TO PARTY MEMBERSHIP AND PARTY
ELECTIONS AND, WHILE THE LAST CLAUSE OF THE PLEDGE PERTAINS TO THE
NATIONAL PARTY, THE PARTY IN ALABAMA WILL BE A PART OF IT BY SENDING
DELEGATES TO PARTICIPATE IN THE NATIONAL CONVENTION, THE EXECUTIVE
COMMITTEE HAVING ORDERED THEIR ELECTION AND THE PARTY THEREBY HAVING
SIGNIFIED ITS INTENTION TO BECOME A MEMBER OF THE NATIONAL PARTY. 
THEREFORE, IT WAS WITHIN THE COMPETENCY OF THE COMMITTEE TO ADOPT THE
RESOLUTION SO BINDING THE VOTERS IN THE PRIMARY."  (FN5)  257 ALA., AT
, 57 SO. 2D, AT 826. 

AS IS WELL KNOWN, POLITICAL PARTIES IN THE MODERN SENSE WERE NOT BORN
WITH THE REPUBLIC.  THEY WERE CREATED BY NECESSITY, BY THE NEED TO
ORGANIZE THE RAPIDLY INCREASING POPULATION, SCATTERED OVER OUR LAND, SO
AS TO COORDINATE EFFORTS TO SECURE NEEDED LEGISLATION AND OPPOSE THAT
DEEMED UNDESIRABLE.  COMPARE BRYCE, MODERN DEMOCRACIES, P. 546.  THE
PARTY CONVENTIONS OF LOCALLY CHOSEN DELEGATES, FROM THE COUNTRY TO THE
NATIONAL LEVEL, SUCCEEDED THE CAUCUSES OF SELF-APPOINTED LEGISLATORS OR
OTHER INTERESTED INDIVIDUALS.  DISSATISFACTION WITH THE MANIPULATION OF
CONVENTIONS CAUSED THAT SYSTEM TO BE LARGELY SUPERSEDED BY THE DIRECT
PRIMARY.  THIS WAS PARTICULARLY TRUE IN THE SOUTH BECAUSE, WITH THE
PREDOMINANCE OF THE DEMOCRATIC PARTY IN THAT SECTION, THE NOMINATION
WAS MORE IMPORTANT THAN THE ELECTION.  THERE PRIMARIES ARE GENERALLY,
AS IN ALABAMA, OPTIONAL.  (FN6) VARIOUS TESTS OF PARTY ALLEGIANCE FOR
CANDIDATES IN DIRECT PRIMARIES ARE FOUND IN A NUMBER OF STATES.  (FN7)
THE REQUIREMENT OF A PLEDGE FROM THE CANDIDATE PARTICIPATING IN
PRIMARIES TO SUPPORT THE NOMINEE IS NOT UNUSUAL.  (FN8)  SUCH A
PROVISION PROTECTS A PARTY FROM INTRUSION BY THOSE WITH ADVERSE
POLITICAL PRINCIPLES.  (FN9)  IT WAS UNDER THE AUTHORITY OF SEC. 347 OF
THE ALABAMA CODE, NOTE 2, SUPRA, THAT THE STATE DEMOCRATIC EXECUTIVE
COMMITTEE OF ALABAMA ADOPTED A RESOLUTION ON JANUARY 26, 1952,
REQUIRING CANDIDATES IN ITS PRIMARY TO PLEDGE SUPPORT TO THE NOMINEES
OF THE NATIONAL CONVENTION OF THE DEMOCRATIC PARTY FOR PRESIDENT AND
VICE-PRESIDENT.  IT IS THIS PROVISION IN THE QUALIFICATIONS REQUIRED BY
THE PARTY UNDER SEC. 347 WHICH THE SUPREME COURT OF ALABAMA HELD
UNCONSTITUTIONAL IN THIS CASE. 

THE OPINION OF THE SUPREME COURT OF ALABAMA CONCLUDED THAT THE
EXECUTIVE COMMITTEE REQUIREMENT VIOLATED THE TWELFTH AMENDMENT, NOTE 1,
SUPRA.  IT SAID: 

"WE APPRECIATE THE ARGUMENT THAT FROM TIME IMMEMORIAL, THE ELECTORS
SELECTED TO VOTE IN THE COLLEGE HAVE VOTED IN ACCORDANCE WITH THE
WISHES OF THE PARTY TO WHICH THEY BELONG.  BUT IN DOING SO, THE
EFFECTIVE COMPULSION HAS BEEN PARTY LOYALTY.  THAT THEORY HAS GENERALLY
BEEN TAKEN FOR GRANTED, SO THAT THE VOTING FOR A PRESIDENT AND VICE
PRESIDENT HAS BEEN USUALLY FORMAL MERELY.  BUT THE TWENFTH AMENDMENT
DOES NOT MAKE IT SO.  THE NOMINEES OF THE PARTY FOR PRESIDENT AND VICE
PRESIDENT MAY HAVE BECOME DISQUALIFIED, OR PECULIARLY OFFENSIVE NOT
ONLY TO THE ELECTORS BUT THEIR CONSTITUENTS ALSO.  THEY SHOULD BE FREE
TO VOTE FOR ANOTHER, AS CONTEMPLATED BY THE TWELFTH AMENDMENT."  (FN10)
257 ALA., AT - , 57 SO. 2D, AT 398. 

IN URGING A CONTRARY VIEW THE DISSENTING ALABAMA JUSTICES, IN
SUPPORTING THE RIGHT OF THE COMMITTEE TO REQUIRE THIS CANDIDATE TO
PLEDGE SUPPORT TO THE PARTY NOMINEES, SAID: 

"ANY OTHER VIEW, IT SEEMS, WOULD DESTROY EFFECTIVE PARTY GOVERNMENT
AND WOULD PRIVILEGE ANY CANDIDATE, REGARDLESS OF HIS POLITICAL
PERSUASION, TO ENTER A PRIMARY ELECTION AS A CANDIDATE FOR ELECTOR AND
FIX HIS OWN QUALIFICATIONS FOR SUCH CANDIDACY.  THIS IS CONTRARY TO THE
TRADITIONAL AMERICAN POLITICAL SYSTEM."  257 ALA., AT - , 57 SO. 2D, AT
403. 

THE APPLICABLE CONSTITUTIONAL PROVISIONS ON THEIR FACE FURNISH NO
DEFINITE ANSWER TO THE QUERY WHETHER A STATE MAY PERMIT A PARTY TO
REQUIRE PARTY REGULARITY FROM ITS PRIMARY CANDIDATES FOR NATIONAL
ELECTORS.  (FN11)  THE PRESIDENTIAL ELECTORS EXERCISE A FEDERAL
FUNCTION IN BALLOTING FOR PRESIDENT AND VICE-PRESIDENT BUT THEY ARE NOT
FEDERAL OFFICERS OR AGENTS ANY MORE THAN THE STATE ELECTOR WHO VOTES
FOR CONGRESSMEN.  THEY ACT BY AUTHORITY OF THE STATE THAT IN TURN
RECEIVES ITS AUTHORITY FROM THE FEDERAL CONSTITUTION.  (FN12)  NEITHER
THE LANGUAGE OF ART. II, SEC. 1, NOR THAT OF THE TWELFTH AMENDMENT
FORBIDS A PARTY TO REQUIRE FROM CANDIDATES IN ITS PRIMARY A PLEDGE OF
POLITICAL CONFORMITY WITH THE AIMS OF THE PARTY.  UNLESS SUCH A
REQUIREMENT IS IMPLICIT, CERTAINLY NEITHER PROVISION OF THE
CONSTITUTION REQUIRES A STATE POLITICAL PARTY, AFFILIATED WITH A
NATIONAL PARTY THROUGH ACCEPTANCE OF THE NATIONAL CALL TO SEND STATE
DELEGATES TO THE NATIONAL CONVENTION, TO ACCEPT PERSONS AS CANDIDATES
WHO REFUSE TO AGREE TO ABIDE BY THE PARTY'S REQUIREMENT.  (FN13) 

THE ARGUMENT AGAINST THE PARTY'S POWER TO EXCLUDE AS CANDIDATES IN
THE PRIMARY THOSE UNWILLING TO AGREE TO AID AND SUPPORT THE NATIONAL
NOMINEES RUNS AS FOLLOWS:  THE CONSTITUTIONAL METHOD FOR THE SELECTION
OF THE PRESIDENT AND VICE-PRESIDENT IS FOR STATES TO APPOINT ELECTORS
WHO SHALL IN TURN VOTE FOR OUR CHIEF EXECUTIVES.  THE INTENTION OF THE
FOUNDERS WAS THAT THOSE ELECTORS SHOULD EXERCISE THEIR JUDGMENT IN
VOTING FOR PRESIDENT AND VICE-PRESIDENT.  THEREFORE THIS REQUIREMENT OF
A PLEDGE IS A RESTRICTION IN SUBSTANCE, IF NOT IN FORM, THAT INTERFERES
WITH THE PERFORMANCE OF THIS CONSTITUTIONAL DUTY TO SELECT THE PROPER
PERSONS TO HEAD THE NATION, ACCORDING TO THE BEST JUDGMENT OF THE
ELECTOR.  THIS INTERFERENCE WITH THE ELECTOR'S FREEDOM OF BALLOTING FOR
PRESIDENT RELATES DIRECTLY TO THE GENERAL ELECTION AND IS NOT CONFINED
TO THE PRIMARY, IT IS CONTENDED, BECAUSE UNDER UNITED STATES V.
CLASSIC, 313 U.S. 299, AND SMITH V. ALLWRIGHT, 321 U.S. 649, THE
ALABAMA PRIMARY IS AN INTEGRAL PART OF THE GENERAL ELECTION.  SEE
SCHNELL V. DAVIS, 336 U.S. 933.  ALTHOUGH ALABAMA, IT IS POINTED OUT,
REQUIRES ELECTORS TO BE CHOSEN AT THE GENERAL ELECTION BY POPULAR VOTE,
ALA. CODE, 1940, TIT. 17, SEC. 222, THE REAL ELECTION TAKES PLACE IN
THE PRIMARY.  LIMITATION AS TO ENTERING A PRIMARY CONTROLS THE RESULTS
OF THE GENERAL ELECTION.  (FN14) 

FIRST WE CONSIDER THE IMPACT OF THE CLASSIC AND ALLWRIGHT CASES ON THE
PRESENT ISSUES.  IN THE FORMER CASE, WE DEALT WITH THE POWER OF
CONGRESS TO PUNISH FRAUDS IN THE PRIMARIES "WHERE THE STATE LAW HAS
MADE THE PRIMARY AN INTEGRAL PART OF THE PROCEDURE OF CHOICE."  WE HELD
THAT CONGRESS HAD SUCH POWER BECAUSE THE PRIMARY WAS A NECESSARY STEP
IN THE CHOICE OF CANDIDATES FOR ELECTION AS FEDERAL REPRESENTATIVES. 
THEREFORE THE SANCTIONS OF SECS. 19 AND 20 OF THE OLD CRIMINAL CODE,
SUBSEQUENTLY REVISED AS 18 U.S.C. SECS. 241 AND 242, WHICH FORBADE
INJURY TO CONSTITUTIONALLY SECURED RIGHTS, APPLIED TO THE RIGHT TO VOTE
IN THE PRIMARY.  313 U.S., AT 317-321.  IN THE LATTER, THE PROBLEM WAS
THE CONSTITUTIONALITY OF THE EXCLUSION OF CITIZENS BY A PARTY AS
ELECTORS IN A PARTY PRIMARY BECAUSE OF RACE.  WE HELD, ON CONSIDERATION
OF STATE PARTICIPATION IN THE REGULATION OF THE PRIMARY, THAT THE PARTY
EXCLUSION WAS STATE ACTION AND SUCH STATE ACTION WAS UNCONSTITUTIONAL
BECAUSE THE PRIMARY AND GENERAL ELECTION WERE A SINGLE INSTRUMENTALITY
FOR CHOICE OF OFFICERS.  THE FIFTEENTH AMENDMENT'S PROHIBITION OF
ABRIDGMENT BY A STATE OF THE RIGHT TO VOTE ON ACCOUNT OF RACE MADE THE
EXCLUSION UNCONSTITUTIONAL.  CONSEQUENTLY, UNDER 8 U.S.C. SECS.  31 AND
43 AN INJURED PARTY MIGHT SUE ONE INJURING HIM.  321 U.S. 649, 660
664.    IN ALABAMA, TOO, THE PRIMARY AND GENERAL ELECTIONS ARE A PART
OF THE STATE-CONTROLLED ELECTIVE PROCESS.  THE ISSUE HERE, HOWEVER, IS
QUITE DIFFERENT FROM THE POWER OF CONGRESS TO PUNISH CRIMINAL CONDUCT
IN A PRIMARY OR TO ALLOW DAMAGES FOR WRONGS TO RIGHTS SECURED BY THE
CONSTITUTION.  A STATE'S OR A POLITICAL PARTY'S EXCLUSION OF CANDIDATES
FROM A PARTY PRIMARY BECAUSE THEY WILL NOT PLEDGE TO SUPPORT THE
PARTY'S NOMINEES IS A METHOD OF SECURING PARTY CANDIDATES IN THE
GENERAL ELECTION, PLEDGED TO THE PHILOSOPHY AND LEADERSHIP OF THAT
PARTY.  IT IS AN EXERCISE OF THE STATE'S RIGHT TO APPOINT ELECTORS IN
SUCH MANNER, SUBJECT TO POSSIBLE CONSTITUTIONAL LIMITATIONS, AS IT MAY
CHOOSE.  U.S. CONST., ART. II, SEC. 1.  THE FACT THAT THE PRIMARY IS A
PART OF THE ELECTION MACHINERY IS IMMATERIAL UNLESS THE REQUIREMENT OF
PLEDGE VIOLATES SOME CONSTITUTIONAL OR STATUTORY PROVISION.  IT WAS THE
VIOLATION OF A SECURED RIGHT THAT BROUGHT ABOUT THE CLASSIC AND
ALLWRIGHT DECISIONS.  HERE THEY DO NOT APPLY UNLESS THERE WAS A
VIOLATION OF THE TWELFTH AMENDMENT BY THE REQUIREMENT TO SUPPORT THE
NOMINEES OF THE NATIONAL CONVENTION. 

SECONDLY, WE CONSIDER THE ARGUMENT THAT THE TWELFTH AMENDMENT DEMANDS
ABSOLUTE FREEDOM FOR THE ELECTOR TO VOTE HIS OWN CHOICE, UNINHIBITED BY
A PLEDGE.  IT IS TRUE THAT THE AMENDMENT SAYS THE ELECTORS SHALL VOTE
BY BALLOT.  BUT IT IS ALSO TRUE THAT THE AMENDMENT DOES NOT PROHIBIT AN
ELECTOR'S ANNOUNCING HIS CHOICE BEFOREHAND, PLEDING HIMSELF.  THE
SUGGESTION THAT IN THE EARLY ELECTIONS CANDIDATES FOR ELECTORS -
CONTEMPORARIES OF THE FOUNDERS - WOULD HAVE HESITATED, BECAUSE OF
CONSTITUTIONAL LIMITATIONS, TO PLEDGE THEMSELVES TO SUPPORT PARTY
NOMINEES IN THE EVENT OF THEIR SELECTION AS ELECTORS IS IMPOSSIBLE TO
ACCEPT.  HISTORY TEACHES THAT THE ELECTORS WERE EXPECTED TO SUPPORT THE
PARTY NOMINEES.  (FN15)  EXPERTS IN THE HISTORY OF GOVERNMENT RECOGNIZE
THE LONGSTANDING PRACTICE.  (FN16)  INDEED, MORE THAN TWENTY STATES DO
NOT PRINT THE NAMES OF THE CANDIDATES FOR ELECTORS ON THE GENERAL
ELECTION BALLOT.  INSTEAD, IN ONE FORM OR ANOTHER, THEY ALLOW A VOTE
FOR THE PRESIDENTIAL CANDIDATE OF THE NATIONAL CONVENTIONS TO BE
COUNTED AS A VOTE FOR HIS PARTY'S NOMINEES FOR THE ELECTORAL COLLEGE. 
(FN17)  THIS LONG-CONTINUED PRACTICAL INTERPRETATION OF THE
CONSTITUTIONAL PROPRIETY OF AN IMPLIED OR ORAL PLEDGE OF HIS BALLOT BY
A CANDIDATE FOR ELECTOR AS TO HIS VOTE IN THE ELECTORAL COLLEGE WEIGHS
HEAVILY IN CONSIDERING THE CONSTITUTIONALITY OF A PLEDGE, SUCH AS THE
ONE HERE REQUIRED, IN THE PRIMARY. 

HOWEVER, EVEN IF SUCH PROMISES OF CANDIDATES FOR THE ELECTORAL
COLLEGE ARE LEGALLY UNENFORCEABLE BECAUSE VIOLATIVE OF AN ASSUMED
CONSTITUTIONAL FREEDOM OF THE ELECTOR UNDER THE CONSTITUTION, ART. II,
SEC. 1, TO VOTE AS HE MAY CHOOSE IN THE ELECTORAL COLLEGE, IT WOULD NOT
FOLLOW THAT THE REQUIREMENT OF A PLEDGE IN THE PRIMARY IS
UNCONSTITUTIONAL.  A CANDIDACY IN THE PRIMARY IS A VOLUNTARY ACT OF THE
APPLICANT.  HE IS NOT BARRED, DISCRIMINATORILY, FROM PARTICIPATING BUT
MUST COMPLY WITH THE RULES OF THE PARTY.  SURELY ONE MAY VOLUNTARILY
ASSUME OBLIGATIONS TO VOTE FOR A CERTAIN CANDIDATE.  THE STATE OFFERS
HIM OPPORTUNITY TO BECOME A CANDIDATE FOR ELECTOR ON HIS OWN TERMS,
ALTHOUGH HE MUST FILE HIS DECLARATION BEFORE THE PRIMARY.  ALA. CODE,
TIT. 17, SEC. 145.  EVEN THOUGH THE VICTORY OF AN INDEPENDENT CANDIDATE
FOR ELECTOR IN ALABAMA CANNOT BE ANTICIPATED, THE STATE DOES OFFER THE
OPPORTUNITY FOR THE DEVELOPMENT OF OTHER STRONG POLITICAL ORGANIZATIONS
WHERE THE NEED IS FELT FOR THEM BY A SIZABLE BLOCK OF VOTERS.  SUCH
PARTIES MAY LEAVE THEIR ELECTORS TO THEIR OWN CHOICE. 

WE CONCLUDE THAT THE TWELFTH AMENDMENT DOES NOT BAR A POLITICAL PARTY
FROM REQUIRING THE PLEDGE TO SUPPORT THE NOMINEES OF THE NATIONAL
CONVENTION.  WHERE A STATE AUTHORIZES A PARTY TO CHOOSE ITS NOMINEES
FOR ELECTOR IN A PARTY PRIMARY AND TO FIX THE QUALIFICATIONS FOR THE
CANDIDATES, WE SEE NO FEDERAL CONSTITUTIONAL OBJECTION TO THE
REQUIREMENT OF THIS PLEDGE. 

FN1  U.S. CONST., AMEND. XII: 

"THE ELECTORS SHALL MEET IN THEIR RESPECTIVE STATES, AND VOTE BY
BALLOT FOR PRESIDENT AND VICE-PRESIDENT, ONE OF WHOM, AT LEAST, SHALL
NOT BE AN INHABITANT OF THE SAME STATE WITH THEMSELVES; THEY SHALL NAME
IN THEIR BALLOTS THE PERSON VOTED FOR AS PRESIDENT, AND IN DISTINCT
BALLOTS THE PERSON VOTED FOR AS VICE-PRESIDENT, AND THEY SHALL MAKE
DISTINCT LISTS OF ALL PERSONS VOTED FOR AS PRESIDENT, AND OF ALL
PERSONS VOTED FOR AS VICE-PRESIDENT, AND OF THE NUMBER OF VOTES FOR
EACH, WHICH LISTS THEY SHALL SIGN AND CERTIFY, AND TRANSMIT SEALED TO
THE SEAT OF THE GOVERNMENT OF THE UNITED STATES, DIRECTED TO THE
PRESIDENT OF THE SENATE; - THE PRESIDENT OF THE SENATE SHALL, IN THE
PRESENCE OF THE SENATE AND HOUSE OF REPRESENTATIVES, OPEN ALL THE
CERTIFICATES AND THE VOTES SHALL THEN BE COUNTED; - THE PERSON HAVING
THE GREATEST NUMBER OF VOTES FOR PRESIDENT, SHALL BE THE PRESIDENT, IF
SUCH NUMBER BE A MAJORITY OF THE WHOLE NUMBER OF ELECTORS APPOINTED;
AND IF NO PERSON HAVE SUCH MAJORITY, THEN FROM THE PERSONS HAVING THE
HIGHEST NUMBERS NOT EXCEEDING THREE ON THE LIST OF THOSE VOTED FOR AS
PRESIDENT, THE HOUSE OF REPRESENTATIVES SHALL CHOOSE IMMEDIATELY, BY
BALLOT, THE PRESIDENT  ...  ." 

FN2  ALA. CODE, 1940, TIT. 17, SEC. 347: 

"ALL PERSONS WHO ARE QUALIFIED ELECTORS UNDER THE GENERAL LAWS OF THE
STATE OF ALABAMA, AND WHO ARE ALSO MEMBERS OF A POLITICAL PARTY
ENTITLED TO PARTICIPATE IN SUCH PRIMARY ELECTION, SHALL BE ENTITLED TO
VOTE THEREIN AND SHALL RECEIVE THE OFFICIAL PRIMARY BALLOT OF THE
POLITICAL PARTY, AND NO OTHER; BUT EVERY STATE EXECUTIVE COMMITTEE OF A
PARTY SHALL HAVE THE RIGHT, POWER AND AUTHORITY TO FIX AND PRESCRIBE
THE POLITICAL OR OTHER QUALIFICATIONS OF ITS OWN MEMBERS, AND SHALL, IN
ITS OWN WAY, DECLARE AND DETERMINE WHO SHALL BE ENTITLED AND QUALIFIED
TO VOTE IN SUCH PRIMARY ELECTION, OR TO BE CANDIDATES THEREIN, OR TO
OTHERWISE PARTICIPATE IN SUCH POLITICAL PARTIES AND PRIMARIES; AND THE
QUALIFICATIONS OF ELECTORS ENTITLED TO VOTE IN SUCH PRIMARY ELECTION
SHALL NOT NECESSARILY BE THE SAME AS THE QUALIFICATIONS FOR ELECTORS
ENTITLED TO BECOME CANDIDATES THEREIN; ...  ." 

FN3  SEE MERRIAM AND OVERACKER, PRIMARY ELECTIONS (1928), PP. 69-73,
124, 125.  CF.  STATE EX REL. CURYEA V. WELLS, 92 NEB. 337, 138 N.W.
165; FRANCIS V. STURGILL, 163 KY.  650, 174 S.W. 753. 

FN4  THIS WAS NOT A UNIQUE DELEGATION.  IN 1928 MERRIAM AND OVERACKER
CITED TEN OTHER STATES WHICH DELEGATE TO THE PARTY AUTHORITIES THE
RIGHT TO PRESCRIBE SUCH QUALIFICATIONS, WITH OR WITHOUT A STATUTORY
STATEMENT OF MINIMUM QUALIFICATIONS; THESE TEN WERE DELAWARE, IDAHO,
AND THE REMAINDER OF THE "SOLID SOUTH," EXCEPT NORTH CAROLINA.  SEE
MERRIAM AND OVERACKER, SUPRA, NOTE 3, AT PP. 72-73.  IN 1948 PENNIMAN
REPORTS THE CONTINUED EXISTENCE OF THESE DELEGATIONS IN ALL THESE
STATES EXCEPT IDAHO, WHICH NOW APPARENTLY REQUIRES ONLY THAT THE
CANDIDATE "REPRESENT THE PRINCIPLES" OF THE PARTY AND BE DULY
REGISTERED IN THE APPROPRIATE PRECINCT.  6 IDAHO CODE (BOBBS-MERRILL,
1948) SECS. 34-605, 34-606, 34-614.  SEE PENNIMAN, SAIT'S AMERICAN
PARTIES AND ELECTIONS (4TH ED., 1948), P. 431.  HOWEVER, THE SITUATION
HAS CHANGED IN SEVERAL OF THOSE STATES:  THE SOUTH CAROLINA LEGISLATURE
APPARENTLY NO LONGER REGULATES THE CONDUCT OF PRIMARIES AT ALL, SEE
S.C. ACTS 1944, NO. 810, P. 2323; AND TEXAS AND FLORIDA HAVE REPEALED
THEIR ELECTION CODES AND ENACTED NEW ONES WHICH APPEAR TO LACK ANY
COMPARABLE PROVISION, SEE THE NEW ELECTION CODE, VERNON'S ANNOTATED
TEXAS STATUTES SERVICE (1951), EFFECTIVE JANUARY 1, 1952; FLA. LAWS
1951, C. 26870.  IN BOTH TEXAS AND FLORIDA, THE PRIMARY IS OPEN TO
PARTY "MEMBERS"; THE EXTENT TO WHICH THE PARTY ITSELF MAY PRESCRIBE
MEMBERSHIP QUALIFICATIONS IS NOT EXPLICITLY SET FORTH.  BUT CF. SECS.
103.111(3) AND 103.121, FLA. LAWS 1951, C. 26870. 

FOR PROVISIONS IN THE REMAINING STATES BEARING ON THIS DELEGATION,
SEE 2 ARK. STAT. ANN. (BOBBS-MERRILL, 1948) SEC. 3-205; 12 GA. CODE
ANN. (HARRISON, 1936) SEC. 34-3218.2; VA.  CODE, 1950 (MICHIE, 1949)
SECS. 24-367, 24-369; 3 MISS.  CODE ANN., 1942 (HARRISON, 1943), SEC.
3129; DEL. LAWS 1944-1945, C. 150, AMENDING DEL. REV. CODE, 1935, C.
58, 1782, SEC.  14; LA. REV. STAT., 1950, TIT. 18, SECS. 306, 309; LA.
CONST. ANN. (BOBBS-MERRILL, 1932), ART. 8, SEC. 4. 

FN5  SUCH A HOLDING INTEGRATES THE STATE AND NATIONAL PARTY.  SEE
CANNON'S DEMOCRATIC MANUAL (1948): 

"THE DEMOCRATIC NATIONAL COMMITEEE IS THE PERMANENT AGENCY AUTHORIZED
TO ACT IN BEHALF OF THE PARTY DURING INTERVALS BETWEEN CONVENTIONS.  IT
IS THE CREATURE OF THE NATIONAL CONVENTION AND THEREFORE SUBORDINATE TO
ITS CONTROL AND DIRECTION.  BETWEEN CONVENTIONS THE COMMITTEE EXERCISES
SUCH POWERS AND AUTHORITY AS HAVE BEEN DELEGATED SPECIFICALLY TO IT AND
IS SUBJECT TO THE DIRECTIONS AND INSTRUCTIONS IMPOSED BY THE CONVENTION
WHICH CREATED IT."  P. 4. 

"DUTIES AND POWERS OF THE COMMITTEE: 

"THE DUTIES AND POWERS OF THE NATIONAL COMMITTEE ARE DERIVED FROM THE
CONVENTION CREATING IT, AND WHILE SUBJECT TO VARIATION AS THE
CONVENTION MAY PROVIDE, ORDINARILY INCLUDE: 

     *         * *         *         * 

"8.  PROVISION FOR THE NATIONAL CONVENTION, INVOLVING: 

     *         *         *         *       * 

"B.  AUTHORIZATION OF CALL AND DETERMINATION WITHIN AUTHORITY GRANTED
BY LAST NATIONAL CONVENTION OF REPRESENTATION FROM STATES, TERRITORIES
AND DISTRICTS; ...  ."  PP. 7-8. 

FN6  SEE PENNIMAN, SUPRA, N. 4, CC. XIII, XVIII, ESPECIALLY AT PP.
300, 416; MERRIAM AND OVERACKER, SUPRA, N. 3, AT PP. 92-93. 

FN7  PENNIMAN, SUPRA, PP. 425-426; MERRIAM AND OVERACKER, SUPRA, PP.
129-133. 

FN8  E.G., SEC. 4, C. 109, N.D. LAWS 1907, PP. 151, 153, DISCUSSED IN
STATE EX REL.  MCCUE V. BLAISDELL, 18 N.D. 55, 118 N.W. 141.  SEE 7
FLA. STAT. ANN. (HARRISON, 1943) SEC. 99.021 (PKT.  PT.); FLA. LAWS
1951, C. 26870, SEC. 99.021, AMENDING 7 FLA. STAT. ANN.  (HARRISON
1943) SEC. 102.29, DISCUSSED IN MAIRS V. PETERS, 52 SO. 2D 793.  CF. 3
MISS.  CODE ANN., 1942 (HARRISON, 1943), SEC. 3129; RUHR V. COWAN, 146
MISS.  870, 112 SO. 386.  CF. VA. CODE, 1950 (MICHIE, 1949), SECS. 24
367, 24-369.  SEE WESTERMAN V. MIMS, 111 TEX. 29, 227 S.W. 178,
DISCUSSING ART. 3096 OF TEX. REV. STAT. OF 1911; CF.  LOVE V. WILCOX,
119 TEX. 256, 28 S.W.2D 515. 

FOR AN EXAMPLE OF A PLEDGE SPECIFICALLY DIRECTED TOWARD PRIMARY
CANDIDATES FOR THE OFFICE OF PRESIDENTIAL ELECTOR, SEE THE RESOLUTIONS
OF THE STATE DEMOCRATIC COMMITTEE OF TEXAS DISCUSSED IN CARTER V.
TOMLINSON, 149 TEX. 7, 227 S.W.2D 795; SEE ALSO LOVE V. TAYLOR, 8
S.W.2D 795 (TEX. CIV. APP.); MCDONALD V. CALHOUN, 149 TEX. 232, 231
S.W.2D 656; CF.  SEAY V. LATHAM, 143 TEX. 1, 182 S.W.2D 251.  SEE ALSO
THE PLEDGE REQUIRED BY THE DEMOCRATIC PARTY OF ARKANSAS, DISCUSSED IN
FISHER V. TAYLOR, 210 ARK. 380, 196, S.W.2D 217. 

SIMILAR PLEDGES, OF COURSE, ARE FREQUENTLY ENACTED OF VOTERS IN THE
PRIMARIES.  SEE.  E.G., STATE EX REL. ADAIR V. DREXEL, 74 NEB. 776, 105
N.W. 174; MORROW V. WIPF, 22 S.D.  146, 115 N.W. 1121; LADD V. HOLMES,
40 ORE.  167, 66 P. 714.  SEE PENNIMAN, SUPRA, NOTE 4, AT P. 431;
MERRIAM AND OVERACKER, SUPRA, NOTE 4, AT PP. 124-129. 

FN9  SEE SEAY V. LATHAM, 143 TEX. 1, 182 S.W.2D 251.  THIS WAS A
TEXAS CASE THAT ALLOWED THE DEMOCRATIC PARTY OF TEXAS TO WITHDRAW ITS
NOMINATION OF PRESIDENTIAL ELECTORS WHEN THEY ANNOUNCED THEIR
DETERMINATION TO VOTE AGAINST THE NOMINEES OF THE PARTY AS MADE BY THE
NATIONAL CONVENTION.  THE NAMES OF OTHERS WERE SUBSTITUTED.  THE COURT
SAID: 

"A POLITICAL PARTY IS A VOLUNTARY ASSOCIATION, INSTITUTED FOR
POLITICAL PURPOSES.  IT IS ORGANIZED FOR THE PURPOSE OF EFFECTUATING
THE WILL OF THOSE WHO CONSTITUTE ITS MEMBERS, AND IT HAS THE INHERENT
POWER OF DETERMINING ITS OWN POLICIES."  143 TEX., AT P. 5, 182 S.W.2D,
AT 253.  SEE CARTER V. TOMLINSON, 149 TEX. 7, 13, 227 S.W.2D 795, 798;
29 TEX.  L. REV. 378. 

FN10  THE COURT FOUND SUPPORT FOR ITS CONCLUSION IN THE REASONING OF
AN OPINION OF THE JUSTICES IN ANSWER TO QUESTIONS PROPOUNDED BY THE
GOVERNOR OF ALABAMA IN 1948.  250 ALA.  339, 34 SO. 2D 598.  ONE
QUESTION WAS "WOULD AN ELECTOR CHOSEN AT THE GENERAL ELECTION IN
NOVEMBER 1948 HAVE A DISCRETION AS TO THE PERSONS FOR WHOM HE COULD
CAST HIS BALLOT FOR PRESIDENT AND VICE PRESIDENT?"  ALABAMA HAD AMENDED
SEC. 226 OF TITLE 17 OF ITS CODE, RELATING TO THE MEETING AND BALLOTING
OF ITS ELECTORAL COLLEGE, BY ADDING "AND SHALL CAST THEIR BALLOTS FOR
THE NOMINEE OF THE NATIONAL CONVENTION OF THE PARTY BY WHICH THEY WERE
ELECTED."  THAT OPINION SAID: 

"THE LANGUAGE OF THE FEDERAL CONSTITUTION CLEARLY SHOWS THAT IT WAS
THE INTENTION OF THE FRAMERS OF THE FEDERAL CONSTITUTION THAT THE
ELECTORS CHOSEN FOR THE SEVERAL STATES WOULD EXERCISE THEIR JUDGMENT
AND DISCRETION IN THE PERFORMANCE OF THEIR DUTY IN THE ELECTION OF THE
PRESIDENT AND VICE-PRESIDENT AND IN DETERMINING THE INDIVIDUALS FOR
WHOM THEY WOULD CAST THE ELECTORAL VOTES OF THE STATES.  HISTORY
SUPPORTS THIS INTERPRETATION WITHOUT CONTROVERSY."  250 ALA., AT 400,
34 SO. 2D AT 600.  SEE MCPHERSON V. BLACKER, 146 U.S. 1, 36.  SEE ALSO
WILLBERN, DISCRETION OF PRESIDENTIAL ELECTORS, 1 ALA. L. REV. 40. 

ON THIS REVIEW THE RIGHT TO A PLACE ON THE PRIMARY BALLOT ONLY IS IN
CONTEST. 

FN11  AS BOTH CONSTITUTIONAL PROVISIONS LONG ANTEDATED THE PARTY
PAIMARY SYSTEM, IT IS NOT TO BE EXPECTED THAT THEY OR THEIR LEGISLATIVE
HISTORY WOULD ILLUMINE THIS ISSUE.  THEY DO NOT.  DISCUSSION IN THE
CONSTITUTIONAL CONVENTION AS TO THE MANNER OF ELECTION OF THE PRESIDENT
RESULTED IN THE ARRANGEMENT BY WHICH PRESIDENTIAL ELECTORS WERE CHOSEN
BY THE STATE AS ITS LEGISLATURE MIGHT DIRECT.   MCPHERSON V. BLACKER,
146 U.S. 1, 28.    THE TWELFTH AMENDMENT WAS BROUGHT ABOUT AS THE
RESULT OF THE DIFFICULTIES CAUSED BY THE PROCEDURE SET UP UNDER ART.
II, SEC. 1.  UNDER THAT PROCEDURE, THE ELECTORS OF EACH STATE DID NOT
VOTE SEPARATELY FOR PRESIDENT AND VICE-PRESIDENT; EACH ELECTOR VOTED
FOR TWO PERSONS, WITHOUT DESIGNATING WHICH OFFICE HE WANTED EACH PERSON
TO FILL.  IF ALL THE ELECTORS OF THE PREDOMINANT PARTY VOTED FOR THE
SAME TWO MEN, THE ELECTION WOULD RESULT IN A TIE, AND BE THROWN INTO
THE HOUSE, WHICH MIGHT OR MIGHT NOT BE SYMPATHETIC TO THAT PARTY. 
DURING THE JOHN ADAMS ADMINISTRATION, WE HAD A PRESIDENT AND VICE
PRESIDENT OF DIFFERENT PARTIES, A SITUATION WHICH COULD NOT COMMEND
ITSELF EITHER TO THE NATION OR TO MOST POLITICAL THEORISTS. 

THE SITUATION WAS MANIFESTLY INTOLERABLE.  ACCORDINGLY THE TWELFTH
AMENDMENT WAS ADOPTED, PERMITTING THE ELECTORS TO VOTE SEPARATELY FOR
PRESIDENTIAL AND VICE-PRESIDENTIAL CANDIDATES.  UNDER THIS PROCEDURE,
THE PARTY ELECTORS COULD VOTE THE REGULAR PARTY TICKET WITHOUT THROWING
THE ELECTION INTO THE HOUSE.  ELECTORS COULD BE CHOSEN TO VOTE FOR THE
PARTY CANDIDATES FOR BOTH OFFICES, AND THE ELECTORS COULD CARRY OUT THE
DESIRES OF THE PEOPLE, WITHOUT CONFRONTING THE OBSTACLES WHICH
CONFOUNDED THE ELECTIONS OF 1796 AND 1800.  SEE 11 ANNALS OF CONGRESS
1289-1290, 7TH CONG., 1ST SESS. (1802). 

FN12  U.S. CONST., ART. II, SEC. 1: 

"  ...  EACH STATE SHALL APPOINT, IN SUCH MANNER AS THE LEGISLATURE
THEREOF MAY DIRECT, A NUMBER OF ELECTORS, EQUAL TO THE WHOLE NUMBER OF
SENATORS AND REPRESENTATIVES TO WHICH THE STATE MAY BE ENTITLED IN THE
CONGRESS:  BUT NO SENATOR OR REPRESENTATIVE, OR PERSON HOLDING AN
OFFICE OF TRUST OR PROFIT UNDER THE UNITED STATES, SHALL BE APPOINTED
AN ELECTOR  ...  ." 

TWELFTH AMENDMENT, NOTE 1, SUPRA; IN RE GREEN, 134 U.S. 377, 379;
BURROUGHS V. UNITED STATES, 290 U.S. 534. 

FN13  THE SUPREME COURT OF ALABAMA HAS JUST SAID THAT THE DEMOCRATIC
PARTY OF THAT STATE WAS THUS AFFILIATED WITH THE NATIONAL
ORGANIZATION.  SEE THE EXCERPT FROM RAY V. GARNER, IN THE TEXT AT NOTE
5, SUPRA. 

FN14  THERE IS ALSO A SUGGESTION THAT, SINCE THE ALABAMA PRIMARY IS
AN INTEGRAL PART OF THE GENERAL ELECTION, THE FOURTEENTH AMENDMENT,
WHICH AMONG OTHER PROHIBITIONS FORBIDS A STATE TO EXCLUDE VOTERS ON
ACCOUNT OF THEIR COLOR, ALSO FORBIDS A STATE TO EXCLUDE CANDIDATES
BECAUSE THEY REFUSE TO PLEDGE THEIR VOTES.  THE ANSWER TO THIS
SUGGESTION IS THAT THE REQUIREMENT OF THIS PLEDGE, UNLIKE THE
REQUIREMENT OF COLOR, IS REASONABLY RELATED TO A LIGITIMATE LEGISLATIVE
OBJECTIVE - NAMELY, TO PROTECT THE PARTY SYSTEM BY PROTECTING THE PARTY
FROM A FRAUDULENT INVASION BY CANDIDATES WHO WILL NOT SUPPORT THE
PARTY.  SEE NOTE 9, SUPRA.  IN FACILITATING THE EFFECTIVE OPERATION OF
DEMOCRATIC GOVERNMENT, A STATE MIGHT REASONABLY CLASSIFY VOTERS OR
CANDIDATES ACCORDING TO PARTY AFFILIATIONS, BUT A REQUIREMENT OF COLOR,
AS WE HAVE POINTED OUT BEFORE, IS NOT REASONABLY RELATED TO ANY
LEGITIMATE LEGISLATIVE OBJECTIVE.  NIXON V. HERNDON, 273 U.S. 536. 
THIS REQUIREMENT OF A PLEDGE DOES NOT DENY EQUAL PROTECTION OR DUE
PROCESS. 

FURTHERMORE, THE FIFTEENTH AMENDMENT DIRECTLY FORBIDS ABRIDGMENT ON
ACCOUNT OF COLOR OF THE RIGHT TO VOTE. 

FN15  11 ANNALS OF CONGRESS 1289-1290, 7TH CONG., 1ST SESS. (1802): 

"UNDER THE CONSTITUTION ELECTORS ARE TO VOTE FOR TWO PERSONS, ONE OF
WHOM DOES NOT RESIDE IN THE STATE OF THE ELECTORS; BUT IT DOES NOT
REQUIRE A DESIGNATION OF THE PERSONS VOTED FOR.  WISE AND VIRTUOUS AS
WERE THE MEMBERS OF THE CONVENTION, EXPERIENCE HAS SHOWN THAT THE MODE
THEREIN ADOPTED CANNOT BE CARRIED INTO OPERATION; FOR THE PEOPLE DO NOT
ELECT A PERSON FOR AN ELECTOR WHO, THEY KNOW, DOES NOT INTEND TO VOTE
FOR A PARTICULAR PERSON AS PRESIDENT.  THEREFORE, PRACTICALLY, THE VERY
THING IS ADOPTED, INTENDED BY THIS AMENDMENT." 

S. REP. NO. 22, 19TH CONG., 1ST SESS. (1826), P. 4: 

"IN THE FIRST ELECTION HELD UNDER THE CONSTITUTION, THE PEOPLE LOOKED
BEYOND THESE AGENTS (ELECTORS), FIXED UPON THEIR OWN CANDIDATES FOR
PRESIDENT AND VICE PRESIDENT, AND TOOK PLEDGES FROM THE ELECTORAL
CANDIDATES TO OBEY THEIR WILL.  IN EVERY SUBSEQUENT ELECTION, THE SAME
THING HAS BEEN DONE.  ELECTORS, THEREFORE, HAVE NOT ANSWERED THE DESIGN
OF THEIR INSTITUTION.  THEY ARE NOT THE INDEPENDENT BODY AND SUPERIOR
CHARACTERS WHICH THEY WERE INTENDED TO BE.  THEY ARE NOT LEFT TO THE
EXERCISE OF THEIR OWN JUDGMENT; ON THE CONTRARY, THEY GIVE THEIR VOTE,
OR BIND THEMSELVES TO GIVE IT, ACCORDING TO THE WILL OF THEIR
CONSTITUENTS.  THEY HAVE DEGENERATED INTO MERE AGENTS, IN A CASE WHICH
REQUIRES NO AGENCY, AND WHERE THE AGENT MUST BE USELESS, IF HE IS
FAITHFUL, AND DANGEROUS, IF HE IS NOT."  SEE 2 STORY OF THE
CONSTITUTION (5TH ED., 1891) SEC. 1463. 

FN16  MCPHERSON V. BLACKER, 146 U.S. 1, 36: 

"DOUBTLESS IT WAS SUPPOSED THAT THE ELECTORS WOULD EXERCISE A
REASONABLE INDEPENDENCE AND FAIR JUDGMENT IN THE SELECTION OF THE CHIEF
EXECUTIVE, BUT EXPERIENCE SOON DEMONSTRATED THAT, WHETHER CHOSEN BY THE
LEGISLATURES OR BY POPULAR SUFFRAGE ON GENERAL TICKET OR IN DISTRICTS,
THEY WERE SO CHOSEN SIMPLY TO REGISTER THE WILL OF THE APPOINTING POWER
IN RESPECT OF A PARTICULAR CANDIDATE." 

III  CYCLOPEDIA OF AMERICAN GOVERNMENT (APPLETON, 1914), PRESIDENTIAL
ELECTIONS, BY ALBERT BUSHNELL HART, P. 8: 

"IN THE THREE ELECTIONS OF 1788-89, 1792 AND 1796 THERE WAS A LIBERAL
SCATTERING OF VOTES, 13 PERSONS RECEIVING VOTES IN 1796; BUT IN 1800
THERE WERE ONLY FIVE NAMES VOTED ON.  AS EARLY AS 1792 AN UNDERSTANDING
WAS ESTABLISHED BETWEEN THE ELECTORS IN SOME OF THE DIFFERENT STATES
THAT THEY SHOULD COMBINE ON THE SAME MAN; AND FROM 1796 ON THERE WERE
ALWAYS, WITH THE EXCEPTION OF THE TWO ELECTIONS OF 1820 AND 1824,
REGULAR PARTY CANDIDATES.  IN PRACTICE MOST OF THE MEMBERS OF THE
ELECTORAL COLLEGES BELONGED TO A PARTY, AND EXPECTED TO SUPPORT IT; AND
AFTER 1824 IT BECAME A FIXED PRINCIPLE THAT THE ELECTORS OFFERED
THEMSELVES FOR THE CHOICE OF THE VOTERS OF LEGISLATURES UPON A PLEDGE
TO VOTE FOR A PREDESIGNATED CANDIDATE." 

FN17  E.G., MASSACHUSETTS: 

ANNOTATED LAWS OF MASSACHUSETTS, C. 54: 

"SEC. 43.  PRESIDENTIAL ELECTORS, ARRANGEMENT OF NAMES OF CANDIDATES,
ETC. - THE NAMES OF THE CANDIDATES FOR PRESIDENTIAL ELECTORS SHALL NOT
BE PRINTED ON THE BALLOT, BUT IN LIEU THEREOF THE SURNAMES OF THE
CANDIDATES OF EACH PARTY FOR PRESIDENT AND VICE PRESIDENT SHALL BE
PRINTED THEREON IN ONE LINE UNDER THE DESIGNATION 'ELECTORS OF
PRESIDENT AND VICE PRESIDENT' AND ARRANGED IN THE ALPHABETICAL ORDER OF
THE SURNAMES OF THE CANDIDATES FOR PRESIDENT, WITH THE POLITICAL
DESIGNATION OF THE PARTY PLACED AT THE RIGHT OF AND IN THE SAME LINE
WITH THE SURNAMES.  A SUFFICIENT SQUARE IN WHICH EACH VOTER MAY
DESIGNATE BY A CROSS (X) HIS CHOICE FOR ELECTORS SHALL BE LEFT AT THE
RIGHT OF EACH POLITICAL DESIGNATION." 

SEE S. DOC. NO. 243, 78TH CONG., 2D SESS. (1944), CONTAINING A
SUMMARY OF THE STATE LAWS RELATING TO NOMINATIONS AND ELECTION OF
PRESIDENTIAL ELECTORS. 

SEE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, PROPOSED
REFORM OF THE ELECTORAL COLLEGE, 1950; EDWARD STANWOOD, A HISTORY OF
THE PRESIDENCY FROM 1788 TO 1897 (1912), PP.  47, 48, 50, 51.  THE
AUTHOR SHOWS THE PRACTICE OF AN ELECTOR'S ANNOUNCING HIS PREFERENCE AND
GIVES AN ALLEGED INSTANCE OF VIOLATION. 

SEE THE COMMENTS ON INSTRUCTION OF ELECTORS IN STATE LAW ON THE
NOMINATION, ELECTION, AND INSTRUCTION OF PRESIDENTIAL ELECTORS, BY RUTH
C. SILVA, 42 AM. POL.  SCI, REV. 523. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, NOT HAVING HEARD THE ARGUMENT, OWING TO
ILLNESS, TOOK NO PART IN THE DISPOSITION OF THE CASE. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE CONSTITUTION AND ITS TWELFTH AMENDMENT ALLOW EACH STATE, IN ITS
OWN WAY, TO NAME ELECTORS WITH SUCH PERSONAL QUALIFICATIONS, APART FROM
STATED DISQUALIFICATIONS, AS THE STATE PRESCRIBES.  THEIR NUMBER, THE
TIME THAT THEY SHALL BE NAMED, THE MANNER IN WHICH THE STATE MUST
CERTIFY THEIR ASCERTAINMENT AND THE DETERMINATION OF ANY CONTEST ARE
PRESCRIBED BY FEDERAL LAW.  U.S. CONST., ART. II, SEC. 1, 3 U.S.C.
SECS. 1-7.  WHEN CHOSEN, THEY PERFORM A FEDERAL FUNCTION OF BALLOTING
FOR PRESIDENT AND VICE PRESIDENT, FEDERAL LAW PRESCRIBING THE TIME OF
MEETING, THE MANNER OF CERTIFYING "ALL THE VOTES GIVEN BY THEM," AND IN
DETAIL HOW SUCH CERTIFICATES SHALL BE TRANSMITTED AND COUNTED.  U.S.
CONST., AMEND. XII, 3 U.S.C. SECS. 9-20.  BUT FEDERAL STATUTE
UNDERTAKES NO CONTROL OF THEIR VOTES BEYOND PROVIDING "THE ELECTORS
SHALL VOTE FOR PRESIDENT AND VICE PRESIDENT RESPECTIVELY, IN THE MANNER
DIRECTED BY THE CONSTITUTION," 3 U.S.C. SEC. 8, AND THE CONSTITUTION
REQUIRES ONLY THAT THEY "VOTE BY BALLOT FOR PRESIDENT AND VICE
PRESIDENT, ONE OF WHOM, AT LEAST, SHALL NOT BE AN INHABITANT OF THE
SAME STATE WITH THEMSELVES."  U.S. CONST., AMEND. XII.  NO ONE FAITHFUL
TO OUR HISTORY CAN DENY THAT THE PLAN ORIGINALLY CONTEMPLATED, WHAT IS
IMPLICIT IN ITS TEXT, THAT ELECTORS WOULD BE FREE AGENTS, TO EXERCISE
AN INDEPENDENT AND NONPARTISAN JUDGMENT AS TO THE MEN BEST QUALIFIED
FOR THE NATION'S HIGHEST OFFICES.*  CERTAINLY UNDER THAT PLAN NO STATE
LAW COULD CONTROL THE ELECTOR IN PERFORMANCE OF HIS FEDERAL DUTY, ANY
MORE THAN IT COULD A UNITED STATES SENATOR WHO ALSO IS CHOSEN BY, AND
REPRESENTS, THE STATE. 

*SEE THE FEDERALIST, NO. 68 (EARLE ED., 1937), PP. 441-442: 

"IT WAS DESIRABLE THAT THE SENSE OF THE PEOPLE SHOULD OPERATE IN THE
CHOICE OF THE PERSON TO WHOM SO IMPORTANT A TRUST WAS TO BE CONFIDED. 
THIS END WILL BE ANSWERED BY COMMITTING THE RIGHT OF MAKING IT, NOT TO
ANY PREESTABLISHED BODY, BUT TO MEN CHOSEN BY THE PEOPLE FOR THE
SPECIAL PURPOSE, AND AT THE PARTICULAR CONJUNCTURE. 

"IT WAS EQUALLY DESIRABLE, THAT THE IMMEDIATE ELECTION SHOULD BE MADE
BY MEN MOST CAPABLE OF ANALYZING THE QUALITIES ADAPTED TO THE STATION,
AND ACTION UNDER CIRCUMSTANCES FAVORABLE TO DELIBERATION, AND TO A
JUDICIOUS COMBINATION OF ALL THE REASONS AND INDUCEMENTS WHICH WERE
PROPER TO GOVERN THEIR CHOICE.  A SMALL NUMBER OF PERSONS, SELECTED BY
THEIR FELLOW-CITIZENS FROM THE GENERAL MASS, WILL BE MOST LIKELY TO
POSSESS THE INFORMATION AND DISCERNMENT REQUISITE TO SUCH COMPLICATED
INVESTIGATIONS." 

THIS ARRANGEMENT MISCARRIED.  ELECTORS, ALTHOUGH OFTEN PERSONALLY
EMINENT, INDEPENDENT, AND RESPECTABLE, OFFICIALLY BECAME VOLUNTARY
PARTY LACKEYS AND INTELLECTUAL NONENTITIES TO WHOSE MEMORY WE MIGHT
JUSTLY PARAPHRASE A TUNEFUL SATIRE: 

THEY ALWAYS VOTED AT THEIR PARTY'S CALL. 

AND NEVER THOUGHT OF THINKING FOR THEMSELVES AT ALL. 

AS AN INSTITUTION THE ELECTORAL COLLEGE SUFFERED ATROPHY ALMOST
INDISTINGUISHABLE FROM RIGOR MORTIS. 

HOWEVER, IN 1948, ALABAMA'S DEMOCRATIC PARTY ELECTORS REFUSED TO VOTE
FOR THE NOMINEE OF THE DEMOCRATIC NATIONAL CONVENTION.  TO PUT AN END
TO SUCH PARTY UNRELIABILITY THE PARTY ORGANIZATION, EXERCISING STATE
DELEGATED AUTHORITY, CLOSED THE OFFICIAL PRIMARY TO ANY CANDIDATE FOR
ELECTOR UNLESS HE WOULD PLEDGE HIMSELF, UNDER OATH, TO SUPPORT ANY
CANDIDATE NAMED BY THE DEMOCRATIC NATIONAL CONVENTION.  IT IS CONCEDED
THAT UNDER LONG-PREVAILING CONDITIONS THIS EFFECTIVELY FORECLOSES ANY
CHANCE OF THE STATE BEING REPRESENTED BY AN UNPLEDGED ELECTOR.  IN
EFFECT, BEFORE ONE CAN BECOME AN ELECTOR FOR ALABAMA, ITS LAW REQUIRES
THAT HE MUST PAWN HIS BALLOT TO A CANDIDATE NOT YET NAMED, BY A
CONVENTION NOT YET HELD, OF DELEGATES NOT YET CHOSEN.  EVEN IF THE
NOMINEE REPUDIATES THE PLATFORM ADOPTED BY THE SAME CONVENTION, AS
DEMOCRATIC NOMINEES HAVE TWICE DONE IN MY LIFETIME (1904, 1928), THE
ELECTOR IS BOUND TO VOTE FOR HIM.  IT WILL BE SEEN THAT THE STATE HAS
SOUGHT TO ACHIEVE CONTROL OF THE ELECTORS' BALLOTS.  BUT THE BALLOTING
CANNOT BE CONSTITUTIONALLY SUBJECTED TO ANY SUCH CONTROL BECAUSE IT WAS
INTENDED TO BE FREE, AN ACT PERFORMED AFTER ALL FUNCTIONS OF THE
ELECTORAL PROCESS LEFT TO THE STATES HAVE BEEN COMPLETED.  THE ALABAMA
SUPREME COURT HELD THAT SUCH A REQUIREMENT VIOLATES THE FEDERAL
CONSTITUTION, AND I AGREE. 

IT MAY BE ADMITTED THAT THIS LAW DOES NO MORE THAN TO MAKE A LEGAL
OBLIGATION OF WHAT HAS BEEN A VOLUNTARY GENERAL PRACTICE.  IF CUSTOM
WERE SUFFICIENT AUTHORITY FOR AMENDMENT OF THE CONSTITUTION BY COURT
DECREE, THE DECISION IN THIS MATTER WOULD BE WARRANTED.  USAGE MAY
SOMETIMES IMPART CHANGED CONTENT TO CONSTITUTIONAL GENERALITIES, SUCH
AS "DUE PROCESS OF LAW," "EQUAL PROTECTION," OR "COMMERCE AMONG THE
STATES."  BUT I DO NOT THINK POWERS OR DISCRETIONS GRANTED TO FEDERAL
OFFICIALS BY THE FEDERAL CONSTITUTION CAN BE FORFEITED BY THE COURT FOR
DISUSE.  A POLITICAL PRACTICE WHICH HAS ITS ORIGIN IN CUSTOM MUST RELY
UPON CUSTOM FOR ITS SANCTIONS. 

THE DEMISE OF THE WHOLE ELECTORAL SYSTEM WOULD NOT IMPRESS ME AS A
DISASTER.  AT ITS BEST IT IS A MYSTIFYING AND DISTORTING FACTOR IN
PRESIDENTIAL ELECTIONS WHICH MAY RESOLVE A POPULAR DEFEAT INTO AN
ELECTORAL VICTORY.  AT ITS WORST IT IS OPEN TO LOCAL CORRUPTION AND
MANIPULATION, ONCE SO FLAGRANT AS TO THREATEN THE STABILITY OF THE
COUNTRY.  TO ABOLISH IT AND SUBSTITUTE DIRECT ELECTION OF THE
PRESIDENT, SO THAT EVERY VOTE WHEREVER CAST WOULD HAVE EQUAL WEIGHT IN
CALCULATING THE RESULT, WOULD SEEM TO ME A GAIN FOR SIMPLICITY AND
INTEGRITY OF OUR GOVERNMENTAL PROCESSES. 

BUT THE COURT'S DECISION DOES NOT EVEN MOVE IN THAT DIRECTION.  WHAT
IT IS DOING IS TO ENTRENCH THE WORST FEATURES OF THE SYSTEM IN
CONSTITUTIONAL LAW AND TO ELEVATE THE PERVERSION OF THE FOREFATHERS'
PLAN INTO A CONSTITUTIONAL PRINCIPLE.  THIS JUDICIAL OVERTURN OF THE
THEORY THAT HAS COME DOWN TO US CANNOT PLEAD THE EXCUSE THAT IT IS A
PRACTICAL REMEDY FOR THE EVILS OR WEAKNESSES OF THE SYSTEM.    THE
COURT IS SANCTIONING A NEW INSTRUMENT OF POWER IN THE HANDS OF ANY
FACTION THAT CAN GET CONTROL OF THE DEMOCRATIC NATIONAL CONVENTION TO
MAKE IT SURE OF ALABAMA'S ELECTORAL VOTE.  WHEN THE PARTY IS IN POWER
THIS WILL LIKELY BE THE ADMINISTRATION FACTION AND WHEN NOT IN POWER NO
ONE KNOWS WHAT GROUP IT WILL BE.  THIS DEVICE OF PREPLEDGED AND OATH
BOUND ELECTORS IMPOSES UPON THE PARTY WITHIN THE STATE AN OATH-BOUND
REGULARITY AND LOYALTY TO THE CONTROLLING ELEMENT OF THE NATIONAL
PARTY.  IT CENTRALIZES PARTY CONTROL AND, INSTEAD OF SECURING FOR THE
LOCALITY A SHARE IN THE CENTRAL MANAGEMENT, IT SECURES THE CENTRAL
MANAGEMENT IN DOMINANCE OF THE LOCAL VOTE IN THE ELECTORAL COLLEGE.  IF
WE DESIRE FREE ELECTIONS, WE SHOULD NOT ADD TO THE LEVERAGE OVER LOCAL
PARTY REPRESENTATIVES ALWAYS POSSESSED BY THOSE WHO ENJOY THE PRESTIGE
AND DISPENSE THE PATRONAGE OF A NATIONAL ADMINISTRATION. 

THE VIEW OF MANY THAT IT IS THE PROGRESSIVE OR LIBERAL ELEMENT OF THE
PARTY THAT WILL PRESENTLY ADVANTAGE FROM THIS DEVICE DOES NOT PROVE
THAT THE DEVICE ITSELF HAS ANY PROPER PLACE IN A TRULY LIBERAL OR
PROGRESSIVE SCHEME OF GOVERNMENT.  WHO WILL COME TO POSSESS THIS WEAPON
AND TO WHOSE ADVANTAGE IT WILL PROVE IN THE LONG RUN I AM NOT
FORESIGHTED ENOUGH TO PREDICT.  BUT PARTY CONTROL ENTRENCHED BY
DISFRANCHISEMENT AND EXCLUSION OF NONCONFORMING PARTY MEMBERS IS A
MEANS WHICH TO MY MIND CANNOT BE JUSTIFIED BY ANY END.  IN THE INTEREST
OF FREE GOVERNMENT, WE SHOULD FOSTER THE POWER AND THE WILL TO BE
INDEPENDENT EVEN ON THE PART OF THOSE WE MAY THINK TO BE INDEPENDENTLY
WRONG. 

CANDIDATES FOR ELECTOR, LIKE THOSE FOR SENATOR, OF COURSE, MAY
ANNOUNCE TO THEIR CONSTITUENTS THEIR POLICIES AND PREFERENCES, AND
ASSUME A MORAL DUTY TO CARRY THEM OUT IF THEY ARE CHOSEN.  COMPETITION
IN THE PRIMARY BETWEEN THOSE OF DIFFERENT VIEWS WOULD FORWARD THE
REPRESENTATIVE PRINCIPLE.  BUT THIS PLAN EFFECTS A COMPLETE SUPPRESSION
OF COMPETITION BETWEEN DIFFERENT VIEWS WITHIN THE PARTY.  ALL WHO ARE
NOT READY TO FOLLOW BLINDLY ANYONE CHOSEN BY THE NATIONAL CONVENTION
ARE EXCLUDED FROM THE PRIMARY, AND THAT, IN PRACTICE, MEANS ALSO FROM
THE ELECTION. 

IT IS NOT FOR ME, AS A JUDGE, TO PASS UPON THE WISDOM OR
RIGHTEOUSNESS OF THE POLITICAL REVOLT THIS MEASURE WAS DESIGNED TO
SUPPRESS.  FOR ME IT IS ENOUGH THAT, BE IT EVER SO BENEVOLENT AND
VIRTUOUS, THE END CANNOT JUSTIFY THESE MEANS. 

I WOULD AFFIRM THE DECISION OF THE SUPREME COURT OF ALABAMA. 
..END :


















UNITED STATES V. HOOD 343 U.S. 148 


NO. 426.  ARGUED MARCH 4, 1952.  - DECIDED MARCH 31, 1952.  - REVERSED. 


APPELLEES WERE INDICTED FOR VIOLATING 18 U.S.C. SEC. 215, WHICH MAKES
IT A MISDEMEANOR FOR ANYONE TO SOLICIT OR RECEIVE CONTRIBUTIONS IN
CONSIDERATION OF THE PROMISE OF SUPPORT OR USE OF INFLUENCE IN
OBTAINING FOR ANY PERSON "ANY APPOINTIVE OFFICE OR PLACE UNDER THE
UNITED STATES."  THE TRIAL COURT DISMISSED CERTAIN COUNTS OF THE
INDICTMENT WHICH ALLEGED THE SOLICITATION OF CONTRIBUTIONS IN RETURN
FOR PROMISES TO USE INFLUENCE TO OBTAIN OFFICES WHICH WERE NOT IN
EXISTENCE AT THE TIME OF THE SOLICITATION OR THE RETURN OF THE
INDICTMENT BUT WHICH THE PRESIDENT HAD BEEN AUTHORIZED TO CREATE UNDER
THE DEFENSE PRODUCTION ACT OF 1950.  HELD:  THESE COUNTS SHOULD NOT
HAVE BEEN DISMISSED.  PP. 149-152. 

(A)  SECTION 215 IS BROAD ENOUGH TO COVER THE SALE OF INFLUENCE IN
CONNECTION WITH AN OFFICE WHICH HAD BEEN AUTHORIZED BY LAW AND WHICH,
AT THE TIME OF THE SALE, MIGHT REASONABLY BE EXPECTED TO BE
ESTABLISHED.  PP. 150-151. 

(B)  THE DOCTRINE THAT CRIMINAL STATUTES ARE TO BE STRICTLY CONSTRUED
DOES NOT MEAN THAT THEY MUST BE CONSTRUED BY SOME ARTIFICIAL AND
CONVENTIONAL RULE; NOR SHOULD THERE BE READ OUT OF SUCH STATUTES WHAT
AS A MATTER OF ORDINARY ENGLISH SPEECH IS IN THEM.  P. 151. 

(C)  THE CONSTRUCTION HERE GIVEN 18 U.S.C. SEC. 215 DOES NOT OFFEND
THE REQUIREMENT OF DEFINITENESS.  PP. 151-152. 

UNITED STATES V. HOOD ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI. 

IN A PROSECUTION OF THE APPELLEES FOR VIOLATION OF 18 U.S.C. SEC. 215
AND CONSPIRACY, THE DISTRICT COURT DISMISSED SOME COUNTS OF THE
INDICTMENT.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT UNDER THE
CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 3731.  REVERSED AND REMANDED, P.
152. 

OPINION OF THE COURT BY MR. JUSTICE FRANKFURTER, ANNOUNCED BY THE
CHIEF JUSTICE. 

THE DEFENDANTS WERE CHARGED IN THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI WITH A CONSPIRACY TO VIOLATE 18 U.S.C. (SUPP.
IV) SEC. 215 AND NUMEROUS SUBSTANTIVE VIOLATIONS OF THE SAME SECTION. 
THE LAW PROVIDES: 

"WHOEVER SOLICITS OR RECEIVES, EITHER AS A POLITICAL CONTRIBUTION, OR
FOR PERSONAL EMOLUMENT, ANY MONEY OR THING OF VALUE, IN CONSIDERATION
OF THE PROMISE OF SUPPORT OR USE OF INFLUENCE IN OBTAINING FOR ANY
PERSON ANY APPOINTIVE OFFICE OR PLACE UNDER THE UNITED STATES, SHALL BE
FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR
BOTH."  (FN1) 

THE INDICTMENT CHARGED A CONSPIRACY TO SOLICIT CONTRIBUTIONS TO THE
MISSISSIPPI DEMOCRATIC COMMITTEE AND TO THE DEFENDANTS PERSONALLY IN
RETURN FOR PROMISES TO USE INFLUENCE TO OBTAIN FOR THE CONTRIBUTORS
APPOINTMENTS IN THE POST OFFICE DEPARTMENT AND IN THE OFFICE OF PRICE
STABILIZATION.  OTHER COUNTS OF THE INDICTMENT CHARGED SUBSTANTIVE
VIOLATIONS.  MATERIAL HERE ARE COUNTS 31, 32, AND 33 CHARGING THE
SOLICITATION BY TWO OF THE DEFENDANTS OF THREE $300 POLITICAL
CONTRIBUTIONS FROM NAMED INDIVIDUALS IN RETURN FOR THE PROMISE OF
SUPPORT AND INFLUENCE ON BEHALF OF THE CONTRIBUTORS TO SECURE FOR THEM
APPOINTMENTS AS CHAIRMEN OF THE COUNTY RATION BOARDS OF PIKE, AMITE AND
LAWRENCE COUNTIES, RESPECTIVELY.  IT IS STIPULATED THAT NO SUCH OFFICES
WERE IN EXISTENCE AT THE TIME OF THE SOLICITATION OR AT ANY TIME
THEREAFTER UP TO THE RETURN OF THE INDICTMENT.  AUTHORITY TO CREATE
SUCH OFFICES, HOWEVER, HAD BEEN GRANTED TO THE PRESIDENT, WELL BEFORE
THE VIOLATIONS CHARGED, BY THE DEFENSE PRODUCTION ACT OF 1950, 64 STAT.
798, 807, 50 U.S.C. APP. (SUPP. IV) SEC. 2103. 

DEFENDANTS SUCCESSFULLY MOVED TO DISMISS THESE PORTIONS OF THE
INDICTMENT ON THE GROUND THAT THE STATUTE DID NOT MAKE CRIMINAL THE
SALE OF NON-EXISTENT OFFICES OR OF INFLUENCE IN CONNECTION WITH
APPOINTMENTS TO THEM.  THE DISTRICT COURT ALSO ORDERED STRICKEN THE
REFERENCES IN THE CONSPIRACY COUNT TO THE OFFICES OF CHAIRMEN OF COUNTY
RATION BOARDS.  THE ORDER OF DISMISSAL WAS APPEALED BY THE GOVERNMENT
UNDER THE CRIMINAL APPEALS ACT, 18 U.S.C. (SUPP. IV) SEC. 3731.  OUR
JURISDICTION IN SUCH CASES IS LIMITED TO THE CONSTRUCTION OF THE
STATUTE INVOLVED. 

WE THINK THE DISTRICT COURT WAS WRONG.  THE STATUTE IS PLAINLY BROAD
ENOUGH ON ITS FACE TO COVER THE SALE OF INFLUENCE IN CONNECTION WITH AN
OFFICE WHICH HAD BEEN AUTHORIZED BY LAW AND WHICH, AT THE TIME OF THE
SALE, MIGHT REASONABLY BE EXPECTED TO BE ESTABLISHED.  THAT WAS THE
SITUATION HERE AND WE DO NOT HAVE TO GO FURTHER TO SAY WHETHER THE
WORDS WILL COVER THE SALE OF AN OFFICE WHICH IS PURELY THE CREATURE OF
THE SELLER'S FANCY. 

THE EVIL AT WHICH THE STATUTE IS DIRECTED IS THE OPERATION OF
PURCHASED, AND THUS IMPROPER, INFLUENCE IN DETERMINING THE OCCUPANTS OF
FEDERAL OFFICE.  BUT IN ATTACKING THAT EVIL, CONGRESS OUTLAWED NOT THE
USE OF SUCH INFLUENCE, BUT THE SOLICITATION OF ITS PURCHASE, THE
PEDDLING OF THE FORBIDDEN WARES.  AS IS NOT UNCOMMON IN CRIMINAL
LEGISLATION, CONGRESS, IN ORDER TO STRIKE AT THE ROOT, MADE THE SCOPE
OF THE STATUTE WIDER THAN THE IMMEDIATE EVIL.  EVEN JUDGES NEED NOT BE
BLIND TO THE FACT OF POLITICAL LIFE THAT IT HELPS IN INFLUENCING
POLITICAL APPOINTMENTS TO BE FOREHANDED WITH A RECOMMENDATION BEFORE AN
OFFICE IS FORMALLY CREATED.  CERTAINLY IT WAS NOT UNREAL FOR CONGRESS
TO BELIEVE THAT THE SALE OF INFLUENCE IN ANTICIPATION OF JOBS WAS
EQUALLY DAMAGING TO THE PROPER OPERATION OF THE FEDERAL SERVICE AND TO
TAKE STEPS TO PREVENT IT.  IT DID SO IN THIS ACT.  NOTHING HAS BEEN
SUGGESTED, EITHER BY THE SPARSE LEGISLATIVE HISTORY OR BY PRIOR
JUDICIAL CONSTRUCTION, (FN2) TO RESTRAIN US FROM GIVING EFFECT TO THE
OBVIOUS, ORDINARY READING OF THE STATUTE.  IT IS PRESSED UPON US THAT
CRIMINAL STATUTES ARE TO BE STRICTLY CONSTRUED.  BUT THIS DOES NOT MEAN
THAT SUCH LEGISLATION "MUST BE CONSTRUED BY SOME ARTIFICIAL AND
CONVENTIONAL RULE."  UNITED STATES V. UNION SUPPLY CO., 215 U.S. 50,
55.  WE SHOULD NOT READ SUCH LAWS SO AS TO PUT IN WHAT IS NOT READILY
FOUND THERE.  BUT EQUALLY WE SHOULD NOT READ OUT WHAT AS A MATTER OF
ORDINARY ENGLISH SPEECH IS IN. 

THIS ACT PENALIZED CORRUPTION.  IT IS NO LESS CORRUPT TO SELL AN
OFFICE ONE MAY NEVER BE ABLE TO DELIVER THAN TO SELL ONE HE CAN. 
DEALING IN FUTURES ALSO DISCREDITS THE PROCESSES OF GOVERNMENT.  THERE
IS NO INDICATION THAT THIS STATUTE PUNISHES DELIVERY OF THE FRUIT OF
THE FORBIDDEN TRANSACTION - IT FORBIDS THE SALE.  THE SALE IS WHAT IS
HERE ALLEGED.  WHETHER THE CORRUPT TRANSACTION WOULD OR COULD EVER BE
PERFORMED IS IMMATERIAL.  WE FIND NO BASIS FOR ALLOWING A BREACH OF
WARRANTY TO BE A DEFENSE TO CORRUPTION. 

OUR CONSTRUCTION OF THE STATUTE DOES NOT OFFEND THE REQUIREMENT OF
DEFINITENESS.  THE PICTURE OF THE UNSUSPECTING INFLUENCE MERCHANT,
STEERING A CAREFUL COURSE BETWEEN VIOLATION OF THE STATUTE ON THE ONE
HAND AND OBTAINING MONEY BY FALSE PRETENSES ON THE OTHER BY CONFINING
HIMSELF TO THE SALE OF NON-EXISTENT BUT PLAUSIBLE OFFICES, ENTRAPPED BY
THE DUBIETIES OF THIS STATUTE, IS NOT ONE TO COMMEND ITSELF TO REASON. 

THE JUDGMENT BELOW IS REVERSED AND THE CASE REMANDED FOR FURTHER
PROCEEDINGS.  REVERSED. 

FN1  THE STATUTE WAS REVISED AND AMENDED IN 1951 IN RESPECTS NOT
MATERIAL HERE.  65 STAT. 320. 

FN2  ONLY ONE REPORTED CASE HAS CONSTRUED THE STATUTE.  HOEPPEL V.
UNITED STATES, 66 APP.  D.C. 71, 85 F.2D 237.  IT DEALT WITH A QUESTION
UNRELATED TO THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE REED, MR. JUSTICE DOUGLAS
AND MR. JUSTICE MINTON CONCUR, DISSENTING. 

18 U.S.C. SEC. 215 MAKES IT A CRIME TO SOLICIT OR RECEIVE POLITICAL
CONTRIBUTIONS ON THE BASIS OF A PROMISE TO HELP "ANY PERSON" OBTAIN
"ANY APPOINTIVE OFFICE OR PLACE UNDER THE UNITED STATES  ... ."  THE
GOVERNMENT ARGUES THAT THIS STATUTE MAKES IT CRIMINAL TO PROMISE TO
HELP SOMEONE GET AN "OFFICE OR PLACE" EVEN THOUGH THERE IS NO SUCH
OFFICE OR PLACE IN EXISTENCE.  APPARENTLY SENSING THAT SUCH AN
EXTRAORDINARY EXPANSION OF THIS CRIMINAL STATUTE MIGHT NOT BE ACCEPTED,
THE GOVERNMENT ARGUES FOR A LESSER EXPANSION SUFFICIENT TO INCLUDE AN
"OFFICE OR PLACE" IF THERE IS A "SUBSTANTIAL POSSIBILITY" THAT IT MAY
BE "SET UP IN THE NEAR FUTURE."  THE COURT'S CONSTRUCTION IS APPARENTLY
THE SAME ALTHOUGH THERE ARE SLIGHT VERBAL VARIATIONS.  IT READS THE
STATUTE AS PUNISHING PROMISES MADE TO USE "INFLUENCE IN CONNECTION WITH
AN OFFICE WHICH HAD BEEN AUTHORIZED BY LAW AND WHICH, AT THE TIME OF
THE SALE, MIGHT REASONABLY BE EXPECTED TO BE ESTABLISHED."  THE WORDS
USED IN THIS STATUTE CONVEY NO SUCH MEANING TO ME.  I THINK THAT ANY
PERSON READING THE WORDS "OFFICE OR PLACE" WOULD IMMEDIATELY THINK OF
THEM AS APPLYING TO AN ACTUAL, EXISTING "OFFICE OR PLACE."  THIS SURELY
WOULD BE A FAIR CONSTRUCTION OF THE LANGUAGE USED, AND I THINK IT IS
THE CONSTRUCTION THAT SHOULD BE COMPELLED IN CONNECTION WITH THIS
CRIMINAL STATUTE.  IT REQUIRES CONSIDERABLE STRAINING TO SAY THAT
CONGRESS "PLAINLY AND UNMISTAKABLY," UNITED STATES V. GRADWELL, 243
U.S. 476, 485, MADE IT A CRIME TO USE INFLUENCE IN CONNECTION WITH AN
"OFFICE OR PLACE" THAT DID NOT EXIST.  SEE UNITED STATES V. HALSETH,
342 U.S. 277.  AS A MATTER OF FACT, THE "REASONABLY TO BE EXPECTED"
OFFICE OR PLACE HERE TALKED ABOUT WAS NOT ONLY NONEXISTENT AT THE TIME
THE ALLEGED PROMISE WAS MADE - IT HAS NOT BEEN "SET UP" YET.  WE SHOULD
NOT STRETCH THIS STATUTE TO COVER CONDUCT WHICH IS NOT PROHIBITED ON
THE THEORY THAT CONGRESS WOULD HAVE DONE SO HAD IT THOUGHT ABOUT IT.
UNITED STATES V. WEITZEL, 246 U.S. 533, 543; MCBOYLE V. UNITED STATES,
283 U.S. 25, 27; PIERCE V. UNITED STATES, 314 U.S. 306. 
..END :











BRUNER V. UNITED STATES 343 U.S. 112 


NO. 391.  ARGUED JANUARY 30, 1952.  - DECIDED MARCH 24, 1952.  - 189
F.2D 255, AFFIRMED. 


THE ACT OF OCTOBER 31, 1951, 65 STAT. 727, AMENDING 28 U.S.C. SEC.
1346 SO AS TO WITHDRAW THE JURISDICTION OF FEDERAL DISTRICT COURTS OVER
ACTIONS AGAINST THE UNITED STATES TO RECOVER COMPENSATION FOR OFFICIAL
SERVICES OF "EMPLOYEES," APPLIES TO ACTIONS PENDING ON THE EFFECTIVE
DATE OF THE AMENDMENT.  PP. 113-117. 

(A)  WHEN A LAW CONFERRING JURISDICTION IS REPEALED WITHOUT ANY
RESERVATION OF JURISDICTION OVER PENDING CASES, ALL PENDING CASES FALL
WITH THE LAW.  INSURANCE CO. V. RITCHIE, 5 WALL.  541.  PP. 115-117. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY THE PROVISION OF 1 U.S.C.
SEC. 109 THAT "REPEAL OF ANY STATUTE SHALL NOT HAVE THE EFFECT TO
RELEASE OR EXTINGUISH ANY PENALTY, FORFEITURE, OR LIABILITY INCURRED
UNDER SUCH STATUTE."  P. 117. 

BRUNER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PETITIONER'S ACTION AGAINST THE UNITED STATES TO RECOVER COMPENSATION
FOR OFFICIAL SERVICES WAS DISMISSED BY THE DISTRICT COURT.  THE COURT
OF APPEALS AFFIRMED.  189 F.2D 255.  THIS COURT GRANTED CERTIORARI. 
342 U.S. 858.  AFFIRMED, P. 117. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN 1941, PETITIONER WAS APPOINTED A CIVILIAN FIRE CHIEF AT CAMP
WHEELER, GEORGIA, BY A LOCAL ARMY COMMANDER ACTING UNDER AUTHORITY
DELEGATED BY THE SECRETARY OF WAR.  IN 1948, PETITIONER BROUGHT THIS
ACTION IN THE DISTRICT COURT TO RECOVER OVERTIME COMPENSATION ALLEGEDLY
DUE FOR HIS SERVICES AS FIRE CHIEF.  JURISDICTION TO ENTER JUDGMENT
AGAINST THE UNITED STATES WAS BASED ON THE TUCKER ACT WHICH GRANTED TO
THE DISTRICT COURT JURISDICTION, CONCURRENT WITH THE COURT OF CLAIMS,
OVER CERTAIN CIVIL ACTIONS AGAINST THE UNITED STATES.  (FN1) 

AT THE TIME THIS ACTION WAS COMMENCED, CONGRESS HAD PROVIDED THAT
NOTHING IN THE TUCKER ACT SHALL BE CONSTRUED AS GIVING THE DISTRICT
COURT: 

"JURISDICTION OF CASES BROUGHT TO RECOVER FEES, SALARY, OR
COMPENSATION FOR OFFICIAL SERVICES OF OFFICERS OF THE UNITED STATES OR
BROUGHT FOR SUCH PURPOSE BY PERSONS CLAIMING AS SUCH OFFICERS OR AS
ASSIGNEES OR LEGAL REPRESENTATIVES THEREOF; BUT NO SUIT PENDING ON THE
27TH DAY OF JUNE 1898 SHALL ABATE OR BE AFFECTED BY THIS PROVISION." 
(FN2) 

THE DISTRICT COURT, HOLDING THAT PETITIONER WAS AN "OFFICER OF THE
UNITED STATES," ENTERED JUDGMENT DISMISSING PETITIONER'S COMPLAINT FOR
WANT OF JURISDICTION.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
AFFIRMED.  189 F.2D 255. 

IN BEAL V. UNITED STATES, 182 F.2D 565 (1950), THE COURT OF APPEALS
FOR THE SIXTH CIRCUIT SUSTAINED JURISDICTION OF THE DISTRICT COURT OVER
A SUIT BROUGHT BY ANOTHER CIVILIAN FIRE FIGHTER APPOINTED BY THE WAR
DEPARTMENT ON THE GROUND THAT HE WAS ONLY AN "EMPLOYEE" AND NOT AN
"OFFICER OF THE UNITED STATES."  WE GRANTED CERTIORARI IN THE CASE AT
BAR TO RESOLVE THE CONFLICT OF DECISIONS.  342 U.S. 858. 

AFTER CERTIORARI HAD BEEN GRANTED IN THIS CASE, THE ACT OF OCTOBER
31, 1951, PUB. L. NO. 248, BECAME EFFECTIVE.  SECTION 50(B) OF THAT ACT
AMENDED THE APPLICABLE CLAUSE OF THE JUDICIAL CODE "BY INSERTING,
IMMEDIATELY AFTER 'OFFICERS' IN SUCH CLAUSE, THE WORDS 'OR EMPLOYEES'
...  ."  (FN3)  AS A RESULT OF THIS AMENDMENT WE ARE CONFRONTED AT THE
THRESHOLD OF THIS CASE WITH THE QUESTION WHETHER THE ACT OF OCTOBER 31,
1951, WITHDRAWING THE JURISDICTION OF THE DISTRICT COURT OVER ACTIONS
FOR COMPENSATION BROUGHT BY "EMPLOYEES," APPLIES TO AN ACTION PENDING
ON THE EFFECTIVE DATE OF THE ACT.  THE POWER OF CONGRESS TO WITHHOLD
JURISDICTION FROM THE DISTRICT COURT "IN THE EXACT DEGREES AND
CHARACTER WHICH TO CONGRESS MAY SEEM PROPER FOR THE PUBLIC GOOD" (FN4)
IS NOT CHALLENGED. 

THE PROBLEM PRESENTED BY THIS CASE HAS ARISEN BEFORE IN THE
ADMINISTRATION OF THE TUCKER ACT.  IN 1887, JURISDICTION CONCURRENT
WITH THE COURT OF CLAIMS WAS GIVEN THE CIRCUIT AND DISTRICT COURTS IN
ALL CASES INVOLVING CLAIMS BELOW STATED DOLLAR AMOUNTS.  IN 1898,
DIFFICULTIES IN DEFENDING CLAIMS FOR COMPENSATION BROUGHT IN DIFFERENT
COURTS PROMPTED CONGRESS TO WITHDRAW FROM THE CIRCUIT AND DISTRICT
COURTS JURISDICTION OVER CASES "BROUGHT TO RECOVER FEES, SALARY, OR
COMPENSATION FOR OFFICIAL SERVICES OF OFFICERS OF THE UNITED STATES
...  ," (FN5) THEREBY CENTRALIZING ALL SUCH CASES IN THE COURT OF
CLAIMS.  CONGRESS MADE NO PROVISION FOR CASES PENDING AT THE EFFECTIVE
DATE OF THE ACT WITHDRAWING JURISDICTION AND, FOR THIS REASON, COURTS
OF APPEALS ORDERED PENDING CASES TERMINATED FOR WANT OF JURISDICTION. 
UNITED STATES V. MCCRORY, 91 F. 295 (C.A. 5TH CIR. 1899); UNITED STATES
V. KELLY, 97 F. 460 (C.A. 9TH CIR. 1899).  THEREAFTER, CONGRESS
RESTORED THE JURISDICTION OF THE CIRCUIT AND DISTRICT COURTS TO
CONSIDER CASES PENDING ON THE DATE THAT JURISDICTION HAD BEEN
WITHDRAWN.  (FN6) 

THE ACT OF OCTOBER 31, 1951, WITHDRAWING THE JURISDICTION OF THE
DISTRICT COURT OVER SUITS BY "EMPLOYEES," DID NOT RESERVE JURISDICTION
OVER PENDING CASES, (FN7) EVEN THOUGH RESERVATION OF JURISDICTION OVER
PENDING CASES HAD BEEN HELD REQUIRED AND LATER HAD BEEN MADE BY
CONGRESS IN RESPECT TO THE 1898 PROVISIONS WITHDRAWING JURISDICTION
OVER SUITS BY "OFFICERS."  ABSENT SUCH A RESERVATION, ONLY THE COURT OF
CLAIMS HAS JURISDICTION TO HEAR AND DETERMINE CLAIMS FOR COMPENSATION
BROUGHT BY EMPLOYEES OF THE UNITED STATES EVEN THOUGH THE DISTRICT
COURT HAD JURISDICTION OVER SUCH CLAIMS WHEN PETITIONER'S ACTION WAS
BROUGHT.  INSURANCE CO. V. RITCHIE, 5 WALL.  541 (1867). 

IN RITCHIE, A CASE ARISING UNDER THE INTERNAL REVENUE LAWS,
JURISDICTION WAS BASED UPON AN ACT OF 1833 GRANTING THE CIRCUIT COURTS
JURISDICTION OVER ALL CASES ARISING UNDER THE REVENUE LAWS.  AFTER
DECISION IN THE CIRCUIT COURT AND WHILE AN APPEAL TO THIS COURT WAS
PENDING, AN ACT OF 1866 WITHDREW THE JURISDICTION OF THE CIRCUIT COURTS
OVER CASES ARISING UNDER THE INTERNAL REVENUE LAWS, WITHOUT ANY
RESERVATION SAVING CASES SUCH AS RITCHIE'S.  THIS COURT HELD: 

"IT IS CLEAR, THAT WHEN THE JURISDICTION OF A CAUSE DEPENDS UPON A
STATUTE THE REPEAL OF THE STATUTE TAKES AWAY THE JURISDICTION.  AND IT
IS EQUALLY CLEAR, THAT WHERE A JURISDICTION, CONFERRED BY STATUTE, IS
PROHIBITED BY A SUBSEQUENT STATUTE, THE PROHIBITION IS, SO FAR, A
REPEAL OF THE STATUTE CONFERRING THE JURISDICTION. 

"IT IS QUITE POSSIBLE THAT THIS EFFECT OF THE ACT OF 1866 WAS NOT
COMTEMPLATED BY CONGRESS.  THE JURISDICTION GIVEN BY THE ACT OF 1833 IN
CASES ARISING UNDER THE CUSTOMS REVENUE LAWS IS NOT TAKEN AWAY OR
AFFECTED BY IT.  IN THESE CASES SUITS MAY STILL BE MAINTAINED AGAINST
COLLECTORS BY CITIZENS OF THE SAME STATE.  IT IS CERTAINLY DIFFICULT TO
PERCEIVE A REASON FOR DISCRIMINATION BETWEEN SUCH SUITS AND SUITS UNDER
THE INTERNAL REVENUE LAWS; BUT WHEN TERMS ARE UNAMBIGUOUS WE MAY NOT
SPECULATE ON PROBABILITIES OF INTENTION."  5 WALL.  AT 544-545. 

IN ANOTHER CASE ARISING UNDER THE SAME JURISDICTIONAL STATUTES, THE
COURT, IN FOLLOWING RITCHIE, STATED THE APPLICABLE RULE AS FOLLOWS: 

"JURISDICTION IN SUCH CASES WAS CONFERRED BY AN ACT OF CONGRESS, AND
WHEN THAT ACT OF CONGRESS WAS REPEALED THE POWER TO EXERCISE SUCH
JURISDICTION WAS WITHDRAWN, AND INASMUCH AS THE REPEALING ACT CONTAINED
NO SAVING CLAUSE, ALL PENDING ACTIONS FELL, AS THE JURISDICTION
DEPENDED ENTIRELY UPON THE ACT OF CONGRESS.'  THE ASSESSORS V.
OSBORNES, 9 WALL.  567, 575 (1870). 

THIS RULE - THAT, WHEN A LAW CONFERRING JURISDICTION IS REPEALED
WITHOUT ANY RESERVATION AS TO PENDING CASES, ALL CASES FALL WITH THE
LAW - HAS BEEN ADHERED TO CONSISTENTLY BY THIS COURT.  (FN8) 

THIS CASE IS NOT AFFECTED BY THE SO-CALLED GENERAL SAVINGS STATUTE
WHICH PROVIDES THAT "REPEAL OF ANY STATUTE SHALL NOT HAVE THE EFFECT TO
RELEASE OR EXTINGUISH ANY PENALTY, FORFEITURE, OR LIABILITY INCURRED
UNDER SUCH STATUTE."  (FN9)  CONGRESS HAS NOT ALTERED THE NATURE OR
VALIDITY OF PETITIONER'S RIGHTS OR THE GOVERNMENT'S LIABILITY BUT HAS
SIMPLY REDUCED THE NUMBER OF TRIBUNALS AUTHORIZED TO HEAR AND DETERMINE
SUCH RIGHTS AND LIABILITIES.  HALLOWELL V. COMMONS, 239 U.S. 506, 508
(1916).  COMPARE LYNCH V. UNITED STATES, 292 U.S. 571 (1934). 

UNDER THE JUDICIAL CODE, AS AMENDED BY THE ACT OF OCTOBER 31, 1951,
THE JURISDICTION OF THE DISTRICT COURT DOES NOT EXTEND TO ACTIONS FOR
COMPENSATION BROUGHT BY EITHER "OFFICERS" OR "EMPLOYEES" OF THE UNITED
STATES.  SINCE WE FIND THAT ACT APPLICABLE TO PETITIONER'S ACTION, THE
JUDGMENT OF THE DISTRICT COURT DISMISSING PETITIONER'S COMPLAINT FOR
WANT OF JURISDICTION IS CORRECT.  ACCORDINGLY, THE JUDGMENT BELOW IS
AFFIRMED. 

FN1  24 STAT. 505 (1887), NOW 28 U.S.C. (SUPP. IV) SEC. 1346. 

FN2  30 STAT. 494, 495 (1898), AS AMENDED, 28 U.S.C. SEC. 41(20).  AS
INCORPORATED INTO THE 1948 REVISION OF THE JUDICIAL CODE, THE PROVISION
READ: 

"THE DISTRICT COURTS SHALL NOT HAVE JURISDICTION UNDER THIS SECTION
OF: 

     *         *         *         *         * 

"(2) ANY CIVIL ACTION TO RECOVER FEES, SALARY, OR COMPENSATION FOR
OFFICIAL SERVICES OF OFFICERS OF THE UNITED STATES."  28 U.S.C. (SUPP.
IV) SEC. 1346(D). 

FN3  65 STAT. 710, 727 (1951). 

FN4  LOCKERTY V. PHILLIPS, 319 U.S. 182, 187 (1943); CARY V. CURTIS,
3 HOW.  236, 245 (1845). 

FN5  30 STAT. 494, 495 (1898).  SEE H.R. REP. NO. 325, 55TH CONG., 2D
SESS. (1898). 

FN6  31 STAT. 33 (1900). 

FN7  NO MENTION OF PENDING CASES IS FOUND IN THE ACT.  IN SEC. 56(1)
OF THE SAME ACT, CONGRESS EXPRESSLY SAVED "ANY RIGHTS OR LIABILITIES"
EXISTING AT THE EFFECTIVE DATE OF THE ACT UNDER STATUTES REPEALED BY
SEC. 56.  65 STAT. 710, 730 (1951). 

FN8  EX PARTE MCCARDLE, 7 WALL.  506, 514 (1869); RAILROAD CO. V.
GRANT, 98 U.S. 398, 401 (1879); SHERMAN V. GRINNELL, 123 U.S. 679, 680
(1887); GURNEE V. PATRICK COUNTY, 137 U.S. 141, 144 (1890); GWIN V.
UNITED STATES, 184 U.S. 669, 675 (1902).  SEE KLINE V. BURKE CONSTR. 
CO., 260 U.S. 226, 234 (1922). 

THIS JURISDICTIONAL RULE DOES NOT AFFECT THE GENERAL PRINCIPLE THAT A
STATUTE IS NOT TO BE GIVEN RETROACTIVE EFFECT UNLESS SUCH CONSTRUCTION
IS REQUIRED BY EXPLICIT LANGUAGE OR BY NECESSARY IMPLICATION.  COMPARE
UNITED STATES V. ST. LOUIS, S.F.&T.R. CO., 270 U.S. 1, 3 (1926), WITH
SMALLWOOD V. GALLARDO, 275 U.S. 56, 61 (1927). 

FN9  1 U.S.C. (SUPP. IV) SEC. 109. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :






















LYKES V. UNITED STATES 343 U.S. 118 


NO. 173.  ARGUED NOVEMBER 29-30, 1951.  - DECIDED MARCH 24, 1952.  - 188
F.2D 964, AFFIRMED. 


UNDER SEC. 23(A)(2) OF THE INTERNAL REVENUE CODE, AN INDIVIDUAL
TAXPAYER WAS NOT ENTITLED TO DEDUCT FROM HIS GROSS INCOME, FOR FEDERAL
INCOME TAX PURPOSES, AN ATTORNEY'S FEE PAID FOR CONTESTING THE AMOUNT
OF HIS FEDERAL GIFT TAX IN THE CIRCUMSTANCES OF THIS CASE.  PP. 119
127. 

(A)  THE ATTORNEY'S FEE WAS NOT DEDUCTIBLE UNDER SEC. 23(A)(2) AS AN
EXPENSE "FOR THE PRODUCTION OR COLLECTION OF INCOME."  PP. 121-124. 

(B)  THERE IS NO ADEQUATE BASIS IN THE RECORD IN THIS CASE FOR
HOLDING THE ATTORNEY'S FEE DEDUCTIBLE UNDER SEC. 23(A)(2) AS AN
INCIDENT OF PETITIONER'S "MANAGEMENT, CONSERVATION, OR MAINTENANCE OF
PROPERTY HELD FOR THE PRODUCTION OF INCOME."  PP. 124-125. 

(C)  EXPENSES FOR LEGAL SERVICES DO NOT BECOME DEDUCTIBLE MERELY
BECAUSE THEY ARE PAID FOR SERVICES WHICH RELIEVE A TAXPAYER OF
LIABILITY; NOR BECAUSE THE SIZE OF THE CLAIM TO WHICH THE SERVICES
RELATE IS LARGE IN PROPORTION TO THE INCOME-PRODUCING RESOURCES OF THE
TAXPAYER; NOR BECAUSE THE CLAIM, IF ALLOWED, WILL CONSUME INCOME
PRODUCING PROPERTY OF THE TAXPAYER.  PP. 125-126. 

(D)  THE RESULT HERE REACHED IS NOT INCONSISTENT WITH 1944 TREASURY
REGULATIONS; AND IT IS IN ACCORD WITH SPECIFIC PROVISIONS OF TREASURY
REGULATIONS SINCE 1946, CONTAINING AN ADMINISTRATIVE INTERPRETATION OF
SEC. 23(A)(2) WHICH IS ENTITLED TO SUBSTANTIAL WEIGHT, ESPECIALLY SINCE
CONGRESS HAS MADE MANY AMENDMENTS TO THE INTERNAL REVENUE CODE WITHOUT
REVISING THAT ADMINISTRATIVE INTERPRETATION.  PP. 126-127. 

LYKES V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

IN A SUIT FOR A REFUND OF FEDERAL INCOME TAX, THE DISTRICT COURT
ENTERED JUDGMENT FOR PETITIONER.  84 F. SUPP. 537.  THE COURT OF
APPEALS REVERSED.  188 F.2D 964.  THIS COURT GRANTED CERTIORARI.  342
U.S. 810.  AFFIRMED, P. 127. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER, FOR FEDERAL INCOME TAX PURPOSES, AN
INDIVIDUAL TAXPAYER WAS ENTITLED TO DEDUCT, FROM HIS GROSS INCOME, AN
ATTORNEY'S FEE PAID FOR CONTESTING THE AMOUNT OF HIS FEDERAL GIFT TAX. 
FOR THE REASONS HEREAFTER STATED WE HOLD THAT HE WAS NOT. 

IN 1940, JOSEPH T. LYKES, PETITIONER HEREIN, GAVE TO HIS WIFE AND TO
EACH OF HIS THREE CHILDREN, RESPECTIVELY, 250 SHARES OF COMMON STOCK IN
LYKES BROTHERS, INC., A CLOSELY HELD FAMILY CORPORATION.   IN HIS
FEDERAL GIFT TAX RETURN HE VALUED THE SHARES AT $120 EACH AND, ON THAT
BASIS, PAID A TAX OF $13,032.75.  IN 1944, THE COMMISSIONER OF INTERNAL
REVENUE REVALUED THE SHARES AT $915.50 EACH AND NOTIFIED PETITIONER OF
A GIFT TAX DEFICIENCY OF $145,276.50.  THROUGH HIS ATTORNEY, PETITIONER
SOUGHT A REDETERMINATION OF THE DEFICIENCY, FORESTALLED AN ASSESSMENT,
AND, IN 1946, PAID $15,612.75 IN SETTLEMENT OF THE DEFICIENCY PURSUANT
TO A FINDING OF THE TAX COURT BASED ON STIPULATED FACTS.  IN 1944,
PETITIONER HAD PAID HIS ATTORNEY $7,263.83 FOR LEGAL SERVICES IN THE
GIFT TAX CONTROVERSY BUT, IN HIS FEDERAL INCOME TAX RETURN, HAD NOT
DEDUCTED THAT EXPENDITURE FROM HIS TAXABLE INCOME.  IN 1946, HE CLAIMED
A TAX REFUND ON THE GROUND THAT THE ATTORNEY'S FEE SHOULD HAVE BEEN
DEDUCTED UNDER SEC. 23(A)(2) OF THE INTERNAL REVENUE CODE.  (FN1)  HIS
CLAIM WAS DENIED BY THE COMMISSIONER AND PETITIONER SUED FOR A REFUND. 
ON STIPULATED AND UNCONTROVERTED FACTS THE DISTRICT COURT HELD, AS A
MATTER OF LAW, THAT THE PAYMENT SHOULD HAVE BEEN DEDUCTED AND ENTERED
JUDGMENT FOR PETITIONER.  84 F. SUPP. 537.  (FN2)  THE COURT OF APPEALS
REVERSED.  188 F.2D 964.  BECAUSE OF THE IMPORTANT STATUTORY ISSUE
INVOLVED AND PETITIONER'S CLAIM THAT THIS CASE IS DISTINGUISHABLE FROM
COBB V. COMMISSIONER, 173 F.2D 711, WE GRANTED CERTIORARI.  342 U.S.
810. 

I. DEDUCTIONS FROM AN INDIVIDUAL'S TAXABLE INCOME ARE LIMITED TO
THOSE ALLOWED BY SEC.  23.  (FN3)  THEIR EXTENT DEPENDS UPON THE
LEGISLATIVE POLICY EXPRESSED IN THE FAIR AND NATURAL MEANING OF THAT

ANY CASE BE ALLOWED IN RESPECT OF - (1) PERSONAL, LIVING, OR FAMILY
EXPENSES  ...  ."  53 STAT. 16, 56 STAT. 826, 26 U.S.C. SEC. 24(1). 
INSOFAR AS GIFTS TO MEMBERS OF A DONOR'S FAMILY ARE IN THE NATURE OF
PERSONAL OR FAMILY EXPENSES, THE DONOR'S EXPENDITURES FOR ACCOUNTING,
LEGAL OR OTHER SERVICES INCURRED IN MAKING THOSE GIFTS ARE OF A LIKE
NATURE.  THE NONDEDUCTIBILITY OF SUCH EXPENDITURES, THEREFORE, IS
INDICATED BOTH BY THE ABSENCE OF ANY AFFIRMATIVE ALLOWANCE OF THEIR
DEDUCTIBILITY UNDER SEC. 23 AND BY THE EXPRESS DENIAL OF THE
DEDUCTIBILITY OF ALL PERSONAL OR FAMILY EXPENSES UNDER SEC. 24. 

IF THE EXPENDITURE IN THE INSTANT CASE HAD BEEN MADE BEFORE 1942, IT
IS CLEAR THAT IT WOULD NOT HAVE BEEN DEDUCTIBLE.  AT THAT TIME SEC. 23
PERMITTED AN INDIVIDUAL TO DEDUCT "ORDINARY AND NECESSARY EXPENSES PAID
OR INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR
BUSINESS ...  ."  53 STAT. 12, 26 U.S.C. (1940 ED.)  SEC.  23(A)(1).
IT MADE NO MENTION OF NONTRADE OR NONBUSINESS EXPENSES.  ACCORDINGLY,
IN HIGGINS V. COMMISSIONER, 312 U.S. 212, WHEN THIS COURT HELD THAT
EXPENSES INCURRED BY AN INDIVIDUAL TAXPAYER IN LOOKING AFTER HIS OWN
INCOME-PRODUCING SECURITIES WERE NOT EXPENSES "INCURRED  ...  IN
CARRYING ON ANY TRADE OR BUSINESS," IT ALSO HELD THAT THEY WERE NOT
DEDUCTIBLE.  (FN5) 

TO CHANGE THAT RESULT, CONGRESS, IN 1942, ADDED THE PRESENT SEC.
23(A)(2).  (FN6)  THAT PROVISION, AS DEMONSTRATED IN ITS LEGISLATIVE
HISTORY, PERMITS THE DEDUCTION OF SOME, BUT NOT ALL, OF THE NONTRADE
AND NONBUSINESS EXPENSES OF AN INDIVIDUAL TAXPAYER.  IT SPECIFIES THOSE
PAID OR INCURRED (1) "FOR THE PRODUCTION OR COLLECTION OF INCOME" OR
(2) "FOR THE MANAGEMENT, CONSERVATION, OR MAINTENANCE OF PROPERTY HELD
FOR THE PRODUCTION OF INCOME."  SEE H.R. REP. NO. 2333, 77TH CONG., 2D
SESS.  (FN7)  CONGRESS MIGHT HAVE GONE FURTHER.  HOWEVER, NEITHER THE
DECISION THAT OCCASIONED THE AMENDMENT, THE COMMITTEE REPORTS ON IT,
NOR THE LANGUAGE ADOPTED IN IT INDICATE THAT CONGRESS SOUGHT TO MAKE
SUCH A CHANGE OF POLICY AS WOULD AUTHORIZE WIDESPREAD DEDUCTIBILITY OF
PERSONAL, LIVING OR FAMILY EXPENDITURES IN THE FACE OF SEC. 24(1). 
BINGHAM'S TRUST V. COMMISSIONER, 325 U.S. 365, 374; MCDONALD V.
COMMISSIONER, 323 U.S. 57, 61-63. 

INASMUCH AS THE ORDINARY AND NECESSARY CHARACTER OF THE LEGAL
EXPENSES INCURRED IN THE INSTANT CASE IS NOT QUESTIONED, THEIR
DEDUCTIBILITY TURNS WHOLLY UPON THE NATURE OF THE ACTIVITIES TO WHICH
THEY RELATE.  (FN8)  THE FIRST ISSUE, THEREFORE, IS WHETHER
PETITIONER'S GIFTS, AND THE LEGAL EXPENSES RELATED TO THEM, WERE MADE
FOR THE "PRODUCTION OR COLLECTION OF INCOME" WITHIN THE MEANING OF SEC.
23(A)(2).  GENERALLY A GIFT IS THE ANTITHESIS OF SUCH PRODUCTION OR
COLLECTION BECAUSE IT REDUCES THE DONOR'S RESOURCES WHETHER INCOME
PRODUCING OR NOT.  HOWEVER, PETITIONER SUGGESTS THAT ALTHOUGH HE STATED
IN HIS GIFT TAX RETURN THAT THE PURPOSE OF HIS GIFTS WAS TO EXPRESS HIS
LOVE FOR THE DONEES, YET THE GIFTS WERE PART OF A GENERAL PLAN TO
PRODUCE INCOME FOR HIMSELF.  IN SUPPORT OF THIS, HE POINTS OUT THAT THE
GIFTS CONSISTED OF 1,000 SHARES OF STOCK IN A CLOSELY HELD FAMILY
CORPORATION OF WHICH HE IS THE PRESIDENT AND IN WHICH HE RETAINED
PERSONAL OWNERSHIP OF ABOUT 2,000 LIKE SHARES, AND THAT ONE OF THE
DONEES, HIS SON, IS NOW ACTIVELY IDENTIFIED WITH THE CORPORATION AND IS
ONE OF ITS DIRECTORS.  (FN9)  THE DISTRICT COURT DID NOT FIND THAT
THESE FACTS, OR ANYTHING ELSE IN THE RECORD, PROVIDED AN ADEQUATE BASIS
FOR RECLASSIFYING PETITIONER'S STOCK TRANSFERS AND HIS PAYMENT OF A
RELATED LEGAL FEE AS EXPENDITURES FOR THE PRODUCTION OF INCOME, RATHER
THAN AS GIFTS ACCOMPANIED BY AN ORDINARY AND NECESSARY ATTORNEY'S FEE
FOR CONTESTING THE AMOUNT OF A FEDERAL GIFT TAX TREATING THE STOCK
TRANSFERS AS GIFTS.  THE COURT OF APPEALS, ON REVIEW OF THE ENTIRE
RECORD, EXPRESSLY HELD THAT THE TRANSFERS WERE GIFTS AND THAT THE
ATTORNEY'S FEE WAS NOT PROXIMATELY RELATED TO THE PRODUCTION OF
INCOME.  THAT COURT THEN APPLIED TO THE ATTORNEY'S FEE THE
INTERPRETATION OF SEC. 23(A)(2) APPROVED IN COBB V. COMMISSIONER,
SUPRA.  WE AGREE TO THE APPLICABILITY OF THAT INTERPRETATION WHICH
DISALLOWS THE FEE AS A DEDUCTION FROM TAXABLE INCOME.  (FN10) 

SIMILARLY, THERE IS NO SUBSTANTIAL FACTUAL BASIS HERE FOR TREATING
THE STOCK TRANSFERS AND THE RELATED ATTORNEY'S FEE AS MERE INCIDENTS OF
PETITIONER'S "MANAGEMENT, CONSERVATION, OR MAINTENANCE OR PROPERTY HELD
FOR THE PRODUCTION OF INCOME."  EVEN ASSUMING THAT PETITIONER'S 3,000
SHARES IN LYKES BROTHERS, INC., DID CONSTITUTE PROPERTY ORIGINALLY HELD
BY HIM FOR THE PRODUCTION OF INCOME, THERE IS NO FINDING, AND NO
ADEQUATE BASIS FOR A FINDING, THAT HIS DONATION OF ONE-THIRD OF THAT
STOCK ACTUALLY WAS NOT THE GIFT HE REPRESENTED IT TO BE.  PETITIONER
DOES NOT CLAIM THAT THE GIFT ITSELF IS DEDUCTIBLE AND, IF IT, AS THE
PRINCIPAL ITEM IN THE TRANSACTION, IS NOT DEDUCTIBLE, WE FIND NO
ADEQUATE BASIS IN THIS RECORD FOR HOLDING THE RELATED ATTORNEY'S FEE
DEDUCTIBLE. 

II.  LEGAL EXPENSES DO NOT BECOME DEDUCTIBLE MERELY BECAUSE THEY ARE
PAID FOR SERVICES WHICH RELIEVE A TAXPAYER OF LIABILITY.  THAT ARGUMENT
WOULD CARRY US TOO FAR.  IT WOULD MEAN THAT THE EXPENSE OF DEFENDING
ALMOST ANY CLAIM WOULD BE DEDUCTIBLE BY A TAXPAYER ON THE GROUND THAT
SUCH DEFENSE WAS MADE TO HELP HIM KEEP CLEAR OF LIENS WHATEVER INCOME
PRODUCING PROPERTY HE MIGHT HAVE.  FOR EXAMPLE, IT SUGGESTS THAT THE
EXPENSE OF DEFENDING AN ACTION BASED UPON PERSONAL INJURIES CAUSED BY A
TAXPAYER'S NEGLIGENCE WHILE DRIVING AN AUTOMOBILE FOR PLEASURE WOULD BE
DEDUCTIBLE.  SECTION 23(A)(2) NEVER HAS BEEN SO INTERPRETED BY US.  IT
HAS BEEN APPLIED TO EXPENSES ON THE BASIS OF THE REMOTE CONTRIBUTIONS
THEY MIGHT MAKE TO THE CONSERVATION OF A TAXPAYER'S INCOME-PRODUCING
ASSETS BY REDUCING HIS GENERAL LIABILITIES.  SEE MCDONALD V.
COMMISSIONER, SUPRA, AT 62-63. 

WHILE THE THREATENED DEFICIENCY ASSESSMENT OF NEARLY $150,000 ADDED
URGENCY TO PETITIONER'S RESISTANCE OF IT, NEITHER ITS SIZE NOR ITS
URGENCY DETERMINED ITS CHARACTER.  IT RELATED TO THE TAX PAYABLE ON
PETITIONER'S GIFTS, AS GIFTS, AND IT WAS FINALLY SETTLED ON AN AGREED
REVALUATION OF THE SECURITIES CONSTITUTING THOSE GIFTS.  THE EXPENSE OF
CONTESTING THE AMOUNT OF THE DEFICIENCY WAS THUS AT ALL TIMES
ATTRIBUTABLE TO THE GIFTS, AS SUCH, AND ACCORDINGLY WAS NOT
DEDUCTIBLE. 

IF, AS SUGGESTED, THE RELATIVE SIZE OF EACH CLAIM, IN PROPORTION TO
THE INCOME-PRODUCING RESOURCES OF A DEFENDANT, WERE TO BE A TOUCHSTONE
OF THE DEDUCTIBILITY OF THE EXPENSE OF RESISTING THE CLAIM, SUBSTANTIAL
UNCERTAINTY AND INEQUITY WOULD INHERE IN THE RULE.  FOR EXAMPLE, THE
EXPENSE OF DEFENDING A PERSONAL INJURY SUIT FOR NEGLIGENCE, OR A SUIT
FOR ALIENATION OF AFFECTIONS, CLAIMING $1,000 DAMAGES, PROBABLY WOULD
NOT BE A DEDUCTIBLE EXPENSE FOR ANY DEFENDANT.  ON THE OTHER HAND, IF
THE SAME PLAINTIFF ON THE SAME FACTS ASKED FOR $5,000, $10,000 OR
$100,000 DAMAGES, AND THE DEFENDANT HELD SOME INCOME-PRODUCING
PROPERTY, THAT DEFENDANT MIGHT BE PERMITTED TO DEDUCT FROM HIS TAXABLE
INCOME THE SAME EXPENSE FOR PRECISELY THE SAME SERVICES AS THOSE UPON
WHICH HIS LESS WELL-TO-DO NEIGHBOR WOULD HAVE TO PAY A TAX IN THE OTHER
CASE.  IT IS NOT A GROUND FOR DEFENSE THAT THE CLAIM, IF JUSTIFIED,
WILL CONSUME INCOME-PRODUCING PROPERTY OF THE DEFENDANT.  WE FIND NO
SUCH DISTINCTION MADE OR IMPLIED IN THE REVENUE ACT. 

III.  WHILE THE TREASURY REGULATIONS, IN 1944, DID NOT REFER TO THE
ISSUE NOW BEFORE US, THEY WERE CONSISTENT WITH THE POSITION WE HAVE
TAKEN.  (FN11)  FURTHERMORE, SINCE 1946, T.D.  5513, 26 CFR SEC.
29.23(A)-15(K), HAS UNEQUIVOCALLY STATED THAT LEGAL EXPENSES INCURRED
BY AN INDIVIDUAL IN THE DETERMINATION OF GIFT TAX LIABILITY ARE NOT
DEDUCTIBLE.  THAT INTERPRETATION OF SEC. 23(A)(2) APPEARS IN THE
FOLLOWING LANGUAGE: 

"EXPENSES PAID OR INCURRED BY AN INDIVIDUAL IN DETERMINING OR
CONTESTING ANY LIABILITY ASSERTED AGAINST HIM DO NOT BECOME DEDUCTIBLE
...  BY REASON OF THE FACT THAT PROPERTY HELD BY HIM FOR THE PRODUCTION
OF INCOME MAY BE REQUIRED TO BE USED OR SOLD FOR THE PURPOSE OF
SATISFYING SUCH LIABILITY.  THUS, EXPENSES PAID OR INCURRED BY AN
INDIVIDUAL IN THE DETERMINATION OF GIFT TAX LIABILITY, EXCEPT TO THE
EXTENT THAT SUCH EXPENSES ARE ALLOCABLE TO INTEREST ON A REFUND OF GIFT
TAXES, ARE NOT DEDUCTIBLE, EVEN THOUGH PROPERTY HELD BY HIM FOR THE
PRODUCTION OF INCOME MUST BE SOLD TO SATISFY AN ASSESSMENT FOR SUCH TAX
LIABILITY OR EVEN THOUGH, IN THE EVENT OF A CLAIM FOR REFUND, THE
AMOUNT RECEIVED WILL BE HELD BY HIM FOR THE PRODUCTION OF INCOME." 

SUCH A REGULATION IS ENTITLED TO SUBSTANTIAL WEIGHT.  SEE
COMMISSIONER V. SOUTH TEXAS CO., 333 U.S. 496, 501; MORRISSEY V.
COMMISSIONER, 296 U.S. 344, 355; FAWCUS MACHINE CO. V. UNITED STATES,
282 U.S. 375, 378.  SINCE THE PUBLICATION OF THAT TREASURY DECISION,
CONGRESS HAS MADE MANY AMENDMENTS TO THE INTERNAL REVENUE CODE WITHOUT
REVISING THIS ADMINISTRATIVE INTERPRETATION OF SEC. 23(A)(2).  SEE
REVENUE ACT OF 1948, C. 168, 62 STAT. 110; REVENUE ACT OF 1950, C. 994,
64 STAT. 906; REVENUE ACT OF 1951, C. 521, 65 STAT. 452; HIGGINS V.
COMMISSIONER, SUPRA, AT 216; MORRISSEY V. COMMISSIONER, SUPRA, AT 355. 

THE JUDGMENT OF THE COURT OF APPEALS ACCORDINGLY IS AFFIRMED. 

FN1  "SEC.  23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES. 

     *         *         *         *    * 

"(2)  NON-TRADE OR NON-BUSINESS EXPENSES.  IN THE CASE OF AN
INDIVIDUAL, ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED
DURING THE TAXABLE YEAR FOR THE PRODUCTION OR COLLECTION OF INCOME, OR
FOR THE MANAGEMENT, CONSERVATION, OR MAINTENANCE OF PROPERTY HELD FOR
THE PRODUCTION OF INCOME."  53 STAT. 12, 56 STAT. 819, 26 U.S.C. SEC.
23(A)(2). 

FN2  "TO CONSTRUE THE LAW AS GIVING TO THE COMMISSIONER THE POWER TO
ASSESS A TAXPAYER WITH A DEFICIENCY TAX GREATLY IN EXCESS OF WHAT HE
OWES AND TO HOLD THAT SUCH LAW DENIES TO THE TAXPAYER THE RIGHT TO
CONTEST SUCH ASSESSMENT, EXCEPT AT HIS OWN PERSONAL EXPENSE, JUST ISN'T
JUSTICE UNDER THE LAW.  THE STATUTE IN QUESTION GIVES THE COMMISSIONER
NO SUCH POWER  ...  ."  84 F. SUPP. 537, 539. 

FN3  THE TAX IS "LEVIED, COLLECTED, AND PAID FOR EACH TAXABLE YEAR
UPON THE NET INCOME OF EVERY INDIVIDUAL  ...  ."  53 STAT. 5, 26 U.S.C.
SEC. 11.  "'NET INCOME' MEANS THE GROSS INCOME COMPUTED UNDER SECTION
22, LESS THE DEDUCTIONS ALLOWED BY SECTION 23."  53 STAT. 9, 26 U.S.C.
SEC. 21. 

FN4  THERE HAVE BEEN EXPRESSIONS BY THIS COURT PLACING A RESTRICTIVE
INTERPRETATION UPON ALLOWABLE DEDUCTIONS BY VIRTUE OF "THE NOW FAMILIAR
RULE THAT AN INCOME TAX DEDUCTION IS A MATTER OF LEGISLATIVE GRACE AND
THAT THE BURDEN OF CLEARLY SHOWING THE RIGHT TO THE CLAIMED DEDUCTION
IS ON THE TAXPAYER."  INTERSTATE TRANSIT LINES V. COMMISSIONER, 319
U.S. 590, 593; DEPUTY V. DU PONT, 308 U.S. 488, 493; NEW COLONIAL ICE
CO. V. HELVERING, 292 U.S. 435, 440.  SUCH AN INTERPRETATION IS NOT
NECESSARY HERE AND IS NOT RELIED UPON IN THIS CASE.  SEE GRISWOLD, AN
ARGUMENT AGAINST THE DOCTRINE THAT DEDUCTIONS SHOULD BE NARROWLY
CONSTRUED AS A MATTER OF LEGISLATIVE GRACE, 56 HARV. L. REV. 1142. 
FN5  AND SEE UNITED STATES V. PYNE, 313 U.S. 127 (ATTORNEY'S FEES AND
OTHER EXPENSES OF EXECUTORS IN CARING FOR SECURITIES AND INVESTMENTS
NOT DEDUCTIBLE); CITY BANK CO. V. HELVERING, 313 U.S. 121 (SIMILAR
EXPENSES OF TESTAMENTARY TRUSTEE NOT DEDUCTIBLE); VAN WART V.
COMMISSIONER, 295 U.S. 112 (ATTORNEY'S FEE FOR LITIGATION TO RECOVER
INCOME FOR A WARD NOT DEDUCTIBLE). 

FN6  SEE NOTE 1, SUPRA. 

FN7  "  ...  DUE PARTLY TO THE INADEQUACY OF THE STATUTE AND PARTLY
TO COURT DECISIONS, NONTRADE OR NONBUSINESS EXPENSES ARE NOT
DEDUCTIBLE, ALTHOUGH NONTRADE OR NONBUSINESS INCOME IS FULLY SUBJECT TO
TAX.  THE BILL CORRECTS THIS INEQUITY BY ALLOWING ALL OF THE ORDINARY
AND NECESSARY EXPENSES PAID OR INCURRED FOR THE PRODUCTION OR
COLLECTION OF INCOME OR FOR THE MANAGEMENT, CONSERVATION OR MAINTENANCE
OF PROPERTY HELD FOR THE PRODUCTION OF INCOME.  THUS, WHETHER OR NOT
THE EXPENSE IS IN CONNECTION WITH THE TAXPAYER'S TRADE OR BUSINESS, IF
IT IS EXPENDED IN THE PURSUIT OF INCOME OR IN CONNECTION WITH PROPERTY
HELD FOR THE PRODUCTION OF INCOME, IT IS ALLOWABLE. 

     *         *         *         *         * 

" ...  THE EXPENSES, HOWEVER, OF CARRYING ON A TRANSACTION WHICH DOES
NOT CONSTITUTE A TRADE OR BUSINESS OF THE TAXPAYER AND IS NOT CARRIED
ON FOR THE PRODUCTION OF INCOME OR FOR THE MANAGEMENT, CONSERVATION, OR
MAINTENANCE OF PROPERTY, BUT WHICH IS CARRIED ON PRIMARILY AS A SPORT,
HOBBY, OR RECREATION ARE NOT ALLOWABLE AS NONTRADE OR NONBUSINESS
EXPENSES. 

"EXPENSES, TO BE DEDUCTIBLE UNDER SECTION 23(A)(2), MUST BE ORDINARY
AND NECESSARY, WHICH RULE PRESUPPOSES THAT THEY MUST BE REASONABLE IN
AMOUNT AND MUST BEAR A REASONABLE AND PROXIMATE RELATION TO THE
PRODUCTION OR COLLECTION OF INCOME, OR TO THE MANAGEMENT, CONSERVATION,
OR MAINTENANCE OF PROPERTY HELD FOR THAT PURPOSE. 

"A DEDUCTION UNDER THIS SECTION IS SUBJECT, EXCEPT FOR THE
REQUIREMENT OF BEING INCURRED IN CONNECTION WITH A TRADE OR BUSINESS,
TO ALL THE RESTRICTIONS AND LIMITATIONS THAT APPLY IN THE CASE OF THE
DEDUCTION UNDER SECTION 23(A)(1)(A) OF AN EXPENSE PAID OR INCURRED IN
CARRYING ON ANY TRADE OR BUSINESS."  ID., AT 46, 75.  TO THE SAME
EFFECT, SEE S. REP. NO. 1631, 77TH CONG., 2D SESS., AT 87-88. 

FN8  FOR CASES RESULTING IN THE NONDEDUCTIBILITY OF LEGAL EXPENSES,
SEE E.G., CROKER V. BURNET, 61 APP. D.C. 342, 62 F.2D 991 (C.A.D.C.
CIR., EN BANC)(DEFENDING SUIT TO HAVE TAXPAYER'S HUSBAND DECLARED
INCOMPETENT AND TO SET ASIDE HIS TRANSFER OF PROPERTY TO TAXPAYER);
DICKEY V. COMMISSIONER, 14 B.T.A. 1295 (DEFENSE AGAINST SUIT FOR
MALICIOUS PROSECUTION); JOYCE V. COMMISSIONER, 3 B.T.A. 393 (DEFENSE OF
VALIDITY OF POSTNUPTIAL AGREEMENT); ORANSKY V. COMMISSIONER, 1 B.T.A.
1239 (DEFENSE AND SETTLEMENT OF ACTION FOR DEATH DUE TO NEGLIGENCE OF
TAXPAYER'S MINOR SON USING TAXPAYER'S AUTOMOBILE).  SEE KORNHAUSER V.
UNITED STATES, 276 U.S. 145, FOR AN EXAMPLE OF LEGAL EXPENSES HELD
DEDUCTIBLE AS BUSINESS EXPENDITURES RATHER THAN PERSONAL ONES. 

FN9  THE RECORD SHOWS THAT THE CORPORATION WAS ORGANIZED IN 1910 BY
PETITIONER'S ELDER BROTHERS AND WAS ORIGINALLY ENGAGED IN THE CATTLE,
RANCHING AND MEAT PACKING BUSINESS.  LATER IT ENGAGED IN EXTENSIVE
STEAMSHIP AND STEVEDORING OPERATIONS THROUGH A SUBSIDIARY.  WHILE IT
WAS A LARGE ENTERPRISE WITH NUMEROUS STOCKHOLDERS BESIDES PETITIONER,
HIS WIFE AND CHILDREN, THE STOCK NEVER HAD BEEN ON THE OPEN MARKET.  IT
WAS HELD BY SONS, NEPHEWS AND SONS-IN-LAW OF THE LYKES BROTHERS.  IT
WAS THE PRACTICE OF THE BROTHERS TO FOSTER IN THIS WAY A CONTINUITY OF
FAMILY OWNERSHIP AND MANAGEMENT.  AT THE TIME OF PETITIONER'S GIFT OF
1,000 SHARES OF COMMON STOCK, THERE WERE OUTSTANDING ABOUT 25,000
SHARES OF THAT CLASS OF STOCK. 

FN10  THE ISSUE HERE IS DISTINGUISHABLE FROM THAT IN BINGHAM'S TRUST
V. COMMISSIONER, SUPRA.  IN THAT CASE THE LEGAL EXPENSES WERE INCURRED
PARTLY IN CONTESTING AN INCOME TAX DEFICIENCY ASSESSED AGAINST THE
TAXPAYING TRUST AND PARTLY IN WINDING UP THE TRUST AFTER ITS
EXPIRATION.  ALL OF THOSE EXPENSES WERE INTEGRAL PARTS OF THE
MANAGEMENT OR CONSERVATION OF THE TRUST PROPERTY FOR THE PRODUCTION OF
INCOME AND, AS SUCH, DEDUCTIBLE UNDER SEC. 23(A)(2). 

FN11 TREAS. REG. 111, SEC. 29.23(A)-15(B). 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

LYKES MADE A GIFT OF CORPORATE STOCK TO HIS CHILDREN.  IT WAS A
LEGITIMATE TRANSACTION, DULY REPORTED FOR GIFT-TAX PURPOSES AND A TAX
OF OVER $13,000 PAID THEREON.  BY OVERVALUING THE STOCK WHICH HAD BEEN
GIVEN, THE COMMISSIONER ASSERTED A GIFT-TAX DEFICIENCY OF $145,276.50
OF WHICH ABOUT $130,000 WAS FOUND BY THE TAX COURT TO BE UNJUSTIFIED. 
BUT, TO PROTECT HIMSELF AGAINST THE GOVERNMENT'S UNJUSTIFIED CLAIM,
LYKES SPENT $7,263.83 FOR LEGAL SERVICES. 

I AM UNABLE TO UNDERSTAND WHY THIS PAYMENT WAS NOT DEDUCTIBLE AS
BEING AN EXPENSE INCURRED "FOR THE MANGEMENT, CONSERVATION, OR
MAINTENANCE OF PROPERTY HELD FOR THE PRODUCTION OF INCOME."  HAD THE
TAXPAYER YIELDED TO THE GOVERNMENT'S UNJUSTIFIED DEMAND, IT WOULD HAVE
DEPLETED HIS CAPITAL BY ABOUT $130,000 AND THENCEFORWARD HE COULD NOT
HAVE ENJOYED INCOME FROM IT.  OF COURSE, IT IS NOT THE AMOUNT BUT THE
PRINCIPLE THAT IS SIGNIFICANT.  INDEED, THE BURDEN OF LEGAL EXPENSE IS
LIKELY TO BE IN INVERSE PROPORTION TO THE AMOUNT OF THE DEFICIENCY
ASSERTED.  HERE THE EXPENSE WAS ONLY ABOUT 5% OF THE SAVING.  IN SMALL
CASES OF SMALL TAXPAYERS THE PERCENTAGE WILL BE FAR GREATER AND IN MANY
MAY EXCEED 100%.  CERTAINLY CONTEST AGAINST UNWARRANTED EXACTION,
REGARDLESS OF ITS AMOUNT OR OUTCOME, IS FOR THE CONSERVATION OF
PROPERTY AND ITS REASONABLE COST IS DEDUCTIBLE. 

A MAJORITY OF MY BRETHREN SEEM TO THINK THEY CAN ESCAPE THIS
CONCLUSION BY GOING FURTHER BACK IN THE CHAIN OF CAUSATION.  THEY SAY
THE CAUSE OF THIS LEGAL EXPENSE WAS THE GIFT.  OF COURSE ONE CAN
REASON, AS MY BRETHREN DO, THAT IF THERE HAD BEEN NO GIFTS THERE WOULD
HAVE BEEN NO TAX, IF THERE HAD BEEN NO TAX THERE WOULD HAVE BEEN NO
DEFICIENCY, IF THERE WERE NO DEFICIENCY THERE WOULD HAVE BEEN NO
CONTEST, IF THERE WERE NO CONTEST THERE WOULD HAVE BEEN NO EXPENSE. 
AND SO THE GIFTS CAUSED THE EXPENSE.  THE FALLACY OF SUCH LOGIC IS THAT
IT WOULD BE JUST AS POSSIBLE TO EMPLOY IT TO PROVE THAT THE LAWYER'S
FEES WERE CAUSED BY HAVING CHILDREN.  IF THERE HAD BEEN NO CHILDREN
THERE WOULD HAVE BEEN NO GIFT, AND IF NO GIFT NO TAX, AND IF NO TAX NO
DEFICIENCY, AND IF NO DEFICIENCY NO CONTEST, AND IF NO CONTEST NO
EXPENSE.  HENCE, THE LAWYER'S FEE WAS NOT DUE TO THE CONTEST AT ALL BUT
WAS A PART OF THE COST OF HAVING BABIES.  IF THIS REASONING WERE
PRESENTED BY A TAXPAYER TO AVOID A TAX, WHAT WOULD WE SAY OF IT?  SO
TREACHEROUS IS THIS KIND OF REASONING THAT IN MOST FIELDS THE LAW RESTS
ITS CONCLUSION ONLY ON PROXIMATE CAUSE AND DECLINES TO FOLLOW THE
WINDING TRAIL TO REMOTE AND MULTIPLE CAUSATIONS. 

AS FOR THE TREASURY REGULATION, I WOULD NOT GIVE IT ONE BIT OF
WEIGHT.  THE TREASURY MAY FEEL THAT IT IS GOOD PUBLIC POLICY TO
DISCOURAGE TAXPAYERS FROM CONTESTING ITS UNJUSTIFIED DEMANDS FOR TAXES
AND THUS JUSTIFY PENALIZING RESISTANCE.  IT IS HARD TO IMAGE ANY
INSTANCE IN WHICH THE TREASURY COULD HAVE A STRONGER SELF-INTEREST IN
ITS REGULATION.  I CANNOT PUT MY FINGER ON A CASE WHERE WE HAVE SAID
THAT THIS REASON WOULD AVOID TREASURY REGULATIONS.  BUT WE HAVE
DISREGARDED THEM WHEN THEY WERE NOT CONSISTENT WITH THE STATUTE, AND
THAT SEEMS TO BE THE CASE HERE.  I THINK CONGRESS ALLOWS A TAXPAYER TO
PROTECT HIS ESTATE, EVEN AGAINST THE TREASURY.  IT SEEMS TO ME A TACIT
SLANDER OF THE NATION'S CREDIT THAT NEED FOR MONEY SHOULD DRIVE US TO
SUCH CASUISTRY AS THIS. 
..END :























RUTKIN V. UNITED STATES 343 U.S. 130 


NO. 195.  ARGUED DECEMBER 3, 1951.  - DECIDED MARCH 24, 1952.  - 189
F.2D 431, AFFIRMED. 


1.  MONEY OBTAINED BY EXTORTION IS INCOME TAXABLE TO THE EXTORTIONER
UNDER SEC. 22(A) OF THE INTERNAL REVENUE CODE.  PP. 131-139. 

(A)  AN UNLAWFUL GAIN, AS WELL AS A LAWFUL ONE, CONSTITUTES TAXABLE
INCOME WHEN ITS RECIPIENT HAS SUCH CONTROL OVER IT THAT, AS A PRACTICAL
MATTER, HE DERIVES READILY REALIZABLE ECONOMIC VALUE FROM IT.  P. 137. 

2.  UNDER THE INSTRUCTIONS GIVEN THE JURY IN THE PROSECUTION OF
PETITIONER FOR WILLFULLY ATTEMPTING TO EVADE AND DEFEAT FEDERAL TAXES,
THE VERDICT OF THE JURY MUST BE TAKEN AS REFLECTING ITS CONCLUSION THAT
THE MONEY IN QUESTION WAS OBTAINED BY PETITIONER BY EXTORTION; AND
THERE WAS SUBSTANTIAL EVIDENCE SUPPORTING THAT RESULT.  PP. 132-137. 

3.  THE FACTUAL ISSUE WHETHER, UNDER ALL THE CIRCUMSTANCES,
PETITIONER'S OMISSION OF THE AMOUNT IN QUESTION FROM HIS TAX RETURN
CONSTITUTED A WILLFUL ATTEMPT TO EVADE AND DEFEAT THE FEDERAL TAX IS
NOT OPEN TO REVIEW HERE, SINCE THAT ISSUE IS SETTLED BY THE VERDICT OF
THE JURY SUPPORTED BY SUBSTANTIAL EVIDENCE.  SPIES V. UNITED STATES,
317 U.S. 492, APPLIED.  P. 135. 

4.  THE CASE OF COMMISSIONER V. WILCOX, 327 U.S. 404, IS LIMITED TO
ITS FACTS.  P. 138. 

5.  CONGRESS HAS POWER UNDER THE SIXTEENTH AMENDMENT TO TAX AS INCOME
MONIES RECEIVED BY EXTORTION.  PP. 138-139. 

RUTKIN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PETITIONER WAS CONVICTED IN THE FEDERAL DISTRICT COURT UNDER 26
U.S.C. SEC. 145(B) FOR WILLFULLY ATTEMPTING TO EVADE OR DEFEAT FEDERAL
TAXES.  THE COURT OF APPEALS AFFIRMED.  189 F.2D 431.  THIS COURT
GRANTED CERTIORARI.  342 U.S. 808.  AFFIRMED, P. 139. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL ISSUE BEFORE US IS WHETHER MONEY OBTAINED BY EXTORTION
IS INCOME TAXABLE TO THE EXTORTIONER UNDER SEC. 22(A) OF THE INTERNAL
REVENUE CODE.  (FN1)  FOR THE REASONS HEREAFTER STATED WE HOLD THAT IT
IS. 

THE PETITIONER, RUTKIN, WAS INDICTED UNDER 26 U.S.C. SEC. 145(B)
(FN2) FOR WILLFULLY ATTEMPTING TO EVADE AND DEFEAT A LARGE PART OF HIS
INCOME AND VICTORY TAXES FOR 1943.  HE WAS CHARGED WITH FILING A FALSE
AND FRAUDULENT RETURN STATING HIS NET INCOME TO BE $18,966.64, WHEREAS
HE KNEW THAT IT WAS $268,622.04.  THAT DIFFERENCE, WHICH WOULD INCREASE
HIS TAX LIABILITY FROM $6,843.93 TO $222,408.32, WAS DUE LARGELY TO HIS
OMISSION FROM HIS ORIGINAL RETURN OF $250,000 RECEIVED BY HIM IN CASH
FROM JOSEPH REINFELD.  THE UNITED STATES CLAIMS THAT THIS SUM WAS
OBTAINED BY PETITIONER BY EXTORTION AND AS SUCH WAS TAXABLE INCOME. 
PETITIONER CONTESTS BOTH THE FACT THAT THE MONEY WAS OBTAINED BY
EXTORTION AND THE CONCLUSION OF LAW THAT IT WAS TAXABLE INCOME IF SO
OBTAINED.  HE CONTENDS ALSO THAT HE DID NOT WILLFULLY ATTEMPT TO EVADE
OR DEFEAT THE TAX.  PETITIONER WAS FOUND GUILTY BY A JURY IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, FINED $10,000 AND
SENTENCED TO FOUR YEARS IN PRISON.  THE COURT OF APPEALS AFFIRMED, ONE
JUDGE DISSENTING.  189 F.2D 431.  WE GRANTED CERTIORARI, 342 U.S. 808,
SO AS TO PASS UPON THE ALLEGED CONFLICT BETWEEN THAT DECISION AND THE
DECISION IN COMMISSIONER V. WILCOX, 327 U.S. 404. 

THE FACTS ARE UNUSUAL BUT THERE CAN BE NO DOUBT THAT, UNDER THE
INSTRUCTIONS GIVEN THE JURY, WE MUST REGARD ITS VERDICT AS REFLECTING
ITS CONCLUSION THAT THE $250,000 WAS OBTAINED BY PETITIONER BY
EXTORTION.  (FN3)  THERE WAS SUBSTANTIAL EVIDENCE SUPPORTING THAT
RESULT.  REINFELD'S FIRST ASSOCIATION WITH PETITIONER WAS IN 1929 WITH
SEVERAL OTHERS IN A BOOTLEGGING OPERATION KNOWN AS THE "HIGH SEAS
VENTURE."  IT WAS ACCOMPLISHED THROUGH THE USE OF A SHIP IN THE SALE OF
WHISKEY AT SEA MORE THAN 12 MILES FROM SHORE.  REINFELD TESTIFIED THAT
PETITIONER CONTRIBUTED NO MONEY TO THE ENTERPRISE BUT WAS TAKEN IN
BECAUSE REINFELD'S ASSOCIATES WERE AFRAID THAT OTHERWISE THEY WOULD GET
"INTERFERENCE AND TROUBLE" FROM PETITIONER.  HIS INTEREST WAS
RECOGNIZED TO BE 6% BUT, WHEN THE VENTURE WAS LIQUIDATED IN 1933, HE
ALREADY WAS OVERDRAWN AND NO DISTRIBUTION WAS MADE TO HIM.  WITHOUT
INCLUDING PETITIONER, THE OTHERS THEN ORGANIZED BROWNE VINTNERS CO.,
INC., A NEW YORK CORPORATION, TO ENGAGE IN THE LIQUOR BUSINESS.  IN
1936 PETITIONER, WITHOUT MAKING AN INVESTMENT, CLAIMED A 6% INTEREST IN
BROWNE VINTNERS.  DESPITE REINFELD'S DENIAL OF PETITIONER'S CLAIM,
REINFELD PAID HIM $60,000 AND TOOK FROM HIM AN ASSIGNMENT OF "ANY AND
ALL OF SUCH SHARES OF CAPITAL STOCK IN THE SAID BROWNE VINTNERS CO.
INC., THAT I AM ENTITLED TO."  IN 1940 ALL THE BROWNE VINTNERS STOCK
WAS SOLD FOR $7,500,000 TO A PURCHASER WHO ALSO ASSUMED $8,000,000 OF
THE COMPANY'S DEBTS.  THE SHARES OF STOCK WHEN SOLD STOOD IN THE NAMES
OF, AND WERE TRANSFERRED BY, "NOMINEES" SO AS TO CONCEAL THE IDENTITY
OF REINFELD AND THE OTHER BENEFICIAL OWNERS.  A CAPITAL GAINS TAX UPON
THE PROFITS FROM THESE SALES WAS PAID BY THE RESPECTIVE NOMINEES. 
(FN4)  PETITIONER WAS NEITHER A STOCKHOLDER OF RECORD NOR A BENEFICIAL
OWNER OF ANY OF THE STOCK OF THE COMPANY AT ANY TIME. 

IN 1941, IN RESPONSE TO PETITIONER'S REQUEST, REINFELD GAVE HIM ABOUT
$10,000 TO HELP BUY A TAVERN.  WHEN PETITIONER USED THE MONEY FOR OTHER
PURPOSES REINFELD REFUSED TO FINANCE HIM FURTHER AND HIS "TROUBLE" WITH
PETITIONER BEGAN.  IN 1942 PETITIONER AGAIN CLAIMED THAT HE HAD HAD AN
INTEREST IN BROWNE VINTNERS COMPANY AND THAT REINFELD MUST GIVE HIM
$100,000 TO HELP HIM PAY HIS DEBTS.  UPON REINFELD'S REFUSAL,
PETITIONER THREATENED TO KILL HIM.  FROM THAT TIME ON, THE RECORD
PRESENTS A LURID STORY OF PETITIONER'S UNSATISFIED DEMANDS UPON
REINFELD FOR VARIOUS SUMS UP TO $500,000, PETITIONER'S THREATENING USE
OF A GUN AND HIS REPEATED STATEMENTS THAT HE WOULD KILL REINFELD AND
REINFELD'S FAMILY UNLESS HIS DEMANDS WERE MET.  FINALLY, ON MAY 11,
1943, IN NEW JERSEY, REINFELD PAID PETITIONER $250,000 IN CASH.  (FN5) 

THROUGHOUT THIS MELODRAMA PETITIONER ASSERTED THAT HE WAS ENTITLED TO
THE PAYMENTS HE DEMANDED FROM REINFELD BECAUSE OF PETITIONER'S ALLEGED
FORMER INTEREST IN BROWNE VINTNERS COMPANY.  THAT INTEREST NEVER WAS
IDENTIFIED BY PETITIONER.  REINFELD AND OTHERS TESTIFIED POSITIVELY
THAT PETITIONER NEVER HAD ANY SUCH INTEREST.  NEVERTHELESS, ON MAY 11,
REINFELD HANDED TO PETITIONER $250,000 IN CASH AT THE SAME TIME THAT
REINFELD PAID $358,000 TO ZWILLMAN AND STACHER REPRESENTING THEIR
CONCEDED INTEREST IN THE PROCEEDS OF BROWNE VINTNERS STOCK. 
PETITIONER, WITH ZWILLMAN AND STACHER, THEREUPON SIGNED A "GENERAL
RELEASE."  IT DID NOT STATE THE AMOUNTS PAID BUT IT DID PURPORT TO
RELEASE REINFELD, BROWNE VINTNERS COMPANY AND OTHERS FROM ALL CLAIMS
THE SIGNERS HAD AGAINST THEM. 

UNDER THE JURY'S VERDICT, WE ACCEPT THE FACT TO BE THAT PETITIONER
HAD NO BASIS FOR HIS CLAIM TO THIS $250,000 AND THAT HE OBTAINED IT BY
EXTORTION.  ACCORDINGLY, IF PROCEEDS OF EXTORTION CONSTITUTE INCOME
TAXABLE TO THE EXTORTIONER, HIS OMISSION OF IT FROM HIS TAX RETURN WAS
UNLAWFUL.  THE FURTHER FACTUAL ISSUE WHETHER, UNDER ALL THE SURROUNDING
CIRCUMSTANCES, PETITIONER'S OMISSION OF THE $250,000 FROM HIS TAX
RETURN AMOUNTED TO A WILLFUL ATTEMPT TO EVADE AND DEFEAT THE TAX IS NOT
OPEN TO REVIEW HERE.  THAT ISSUE IS SETTLED BY THE VERDICT OF THE JURY
SUPPORTED BY SUBSTANTIAL EVIDENCE.  (FN6)  IT REMAINS FOR US TO
DETERMINE THE LEGAL ISSUE OF WHETHER MONEY OBTAINED BY EXTORTION IS
TAXABLE TO THE EXTORTIONER UNDER SEC. 22(A). 

UNDER THE INSTRUCTIONS TO THE JURY, EXTORTION HERE MEANT THAT THE
$250,000 WAS PAID TO PETITIONER IN RESPONSE TO HIS FALSE CLAIM THERETO,
HIS HARASSING DEMANDS THEREFOR AND HIS REPEATED THREATS TO KILL
REINFELD AND REINFELD'S FAMILY UNLESS THE PAYMENT WERE MADE.  (FN7)
PETITIONER WAS UNABLE TO INDUCE REINFELD TO BELIEVE PETITIONER'S FALSE
AND FRAUDULENT CLAIMS TO THE MONEY TO BE TRUE.  HE INDUCED REINFELD TO
CONSENT TO PAY THE MONEY BY CREATING A FEAR IN REINFELD THAT HARM
OTHERWISE WOULD COME TO HIM AND TO HIS FAMILY.  REINFELD THEREUPON
DELIVERED HIS OWN MONEY TO PETITIONER.  PETITIONER'S CONTROL OVER THE
CASH SO RECEIVED WAS SUCH THAT, IN THE ABSENCE OF REINFELD'S UNLIKELY
REPUDIATION OF THE TRANSACTION AND DEMAND FOR THE MONEY'S RETURN,
PETITIONER COULD ENJOY ITS USE AS FULLY AS THOUGH HIS TITLE TO IT WERE
UNASSAILABLE. 

AN UNLAWFUL GAIN, AS WELL AS A LAWFUL ONE, CONSTITUTES TAXABLE INCOME
WHEN ITS RECIPIENT HAS SUCH CONTROL OVER IT THAT, AS A PRACTICAL
MATTER, HE DERIVES READILY REALIZABLE ECONOMIC VALUE FROM IT. BURNET V.
WELLS, 289 U.S. 670, 678; CORLISS V. BOWERS, 281 U.S. 376, 378.  THAT
OCCURS WHEN CASH, AS HERE, IS DELIVERED BY ITS OWNER TO THE TAXPAYER IN
A MANNER WHICH ALLOWS THE RECIPIENT FREEDOM TO DISPOSE OF IT AT WILL,
EVEN THOUGH IT MAY HAVE BEEN OBTAINED BY FRAUD AND HIS FREEDOM TO USE
IT MAY BE ASSAILABLE BY SOMEONE WITH A BETTER TITLE TO IT. 

SUCH GAINS ARE TAXABLE IN THE YEARLY PERIOD DURING WHICH THEY ARE
REALIZED.  THIS STATUTORY POLICY IS INVOKED IN THE INTEREST OF ORDERLY
ADMINISTRATION.  "COLLECTION OF THE REVENUE CANNOT BE DELAYED, NOR
SHOULD THE TREASURY BE COMPELLED TO DECIDE WHEN A POSSESSOR'S CLAIMS
ARE WITHOUT LEGAL WARRANT."   NATIONAL CITY BANK V. HELVERING, 98 F.2D
93, 96.  THERE IS NO ADEQUATE REASON WHY ASSAILABLE UNLAWFUL GAINS
SHOULD BE TREATED DIFFERENTLY IN THIS RESPECT FROM ASSAILABLE LAWFUL
GAINS.  CERTAINLY THERE IS NO REASON FOR TREATING THEM MORE LENIENTLY. 
UNITED STATES V. SULLIVAN, 274 U.S. 259, 263. 

THERE HAS BEEN A WIDESPREAD AND SETTLED ADMINISTRATIVE AND JUDICIAL
RECOGNITION OF THE TAXABILITY OF UNLAWFUL GAINS OF MANY KINDS UNDER
SEC. 22(A).  (FN8)  THE APPLICATION OF THIS SECTION TO UNLAWFUL GAINS
IS OBVIOUS FROM ITS LEGISLATIVE HISTORY.  SECTION IIB OF THE INCOME TAX
ACT OF 1913 PROVIDED THAT "THE NET INCOME OF A TAXABLE PERSON SHALL
INCLUDE GAINS, PROFITS, AND INCOME  ... FROM  ...  THE TRANSACTION OF
ANY LAWFUL BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS
AND INCOME DERIVED FROM ANY SOURCE WHATEVER  ...  ."  38 STAT. 167.  IN
1916 THIS WAS AMENDED BY OMITTING THE ONE WORD "LAWFUL" WITH THE
OBVIOUS INTENT THEREAFTER TO TAX UNLAWFUL AS WELL AS LAWFUL GAINS,
PROFITS OR INCOME DERIVED FROM ANY SOURCE WHATEVER.  (FN9) 

THERE IS LITTLE DOUBT NOW THAT WHERE UNLAWFUL GAINS ARE SECURED BY
THE FRAUD OF THE TAXPAYER THEY ARE TAXABLE.  (FN10)  IN THE INSTANT
CASE IT IS NOT QUESTIONED THAT THE $250,000 WOULD HAVE BEEN TAXABLE TO
PETITIONER IF HE HAD OBTAINED IT BY FRAUDULENTLY INDUCING REINFELD TO
BELIEVE PETITIONER'S FALSE CLAIMS TO BE TRUE.  THAT BEING SO, IT WOULD
BE AN EXTRAORDINARY RESULT TO HOLD HERE THAT PETITIONER IS TO BE TAX
FREE BECAUSE HIS FRAUD WAS SO TRANSPARENT THAT IT DID NOT MISLEAD HIS
VICTIM AND HIS VICTIM PAID HIM THE MONEY BECAUSE OF FEAR INSTEAD OF
FRAUD. 

WE DO NOT REACH IN THIS CASE THE FACTUAL SITUATION INVOLVED IN
COMMISSIONER V. WILCOX, 327 U.S. 404.  WE LIMIT THAT CASE TO ITS
FACTS.  THERE EMBEZZLED FUNDS WERE HELD NOT TO CONSTITUTE TAXABLE
INCOME TO THE EMBEZZLER UNDER SEC. 22(A).  THE ISSUE HERE IS WHETHER
MONEY EXTORTED FROM A VICTIM WITH HIS CONSENT INDUCED SOLELY BY
HARASSING DEMANDS AND THREATS OF VIOLENCE IS INCLUDED IN THE DEFINITION
OF GROSS INCOME UNDER SEC. 22(A).  WE THINK THE POWER OF CONGRESS TO
TAX THESE RECEIPTS AS INCOME UNDER THE SIXTEENTH AMENDMENT IS
UNQUESTIONABLE.  THE BROAD LANGUAGE OF SEC. 22(A) SUPPORTS THE
DECLARATIONS OF THIS COURT THAT CONGRESS IN ENACTING THAT SECTION
EXERCISED ITS FULL POWER TO TAX INCOME.  (FN11)  WE THEREFORE CONCLUDE
THAT SEC. 22(A) REACHES THESE RECEIPTS. 

WE HAVE CONSIDERED THE OTHER CONTENTIONS OF PETITIONER BUT FIND THEM
WITHOUT MERIT SUFFICIENT TO JUSTIFY A REVERSAL OR REMAND OF THE CASE. 

THE JUDGMENT OF THE COURT OF APPEALS ACCORDINGLY IS AFFIRMED. 

FN1  "SEC.  22.  GROSS INCOME. 

"(A)  GENERAL DEFINITION.  'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICE  ...  OF WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER  ... ."  53 STAT. 9, 53 STAT. 574, 26 U.S.C. SEC.
22(A). 

FN2  "SEC.  145.  PENALTIES. 

     *         *      *         *         * 

"(B)  ...  ATTEMPT TO DEFEAT OR EVADE TAX.  ...  ANY PERSON WHO
WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR DEFEAT ANY TAX IMPOSED BY
THIS CHAPTER OF THE PAYMENT THEREOF, SHALL, IN ADDITION TO OTHER
PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY AND, UPON CONVICTION
THEREOF, BE FINED NOT MORE THAN $10,000, OR IMPRISONED FOR NOT MORE
THAN FIVE YEARS, OR BOTH, TOGETHER WITH THE COSTS OF PROSECUTION."  53
STAT. 62-63, 26 U.S.C. SEC. 145(B). 

FN3  THE INSTRUCTIONS INCLUDED THE FOLLOWING: 

"THAT SOMEBODY LIED AND COMMITTED PERJURY IS PERFECTLY PATENT BECAUSE
CONTRADICTORY STORIES HAVE BEEN TOLD, AND YOU MUST SAY WHERE THE TRUTH
LIES; AND THE PROBLEM OF DETERMINING THAT TRUTH IS SOLELY AND
PECULIARLY YOURS  ... . 

     *         *         *         *         * 

"BUT THEN WE COME TO THE ADMITTED PAYMENT OF $250,000.  RUTKIN SAYS
THAT THAT $250,000 WAS A FINAL SETTLEMENT OF HIS CLAIM IN BROWNE
VINTNERS, AND IF THAT IS SO - AND THE GOVERNMENT DOES NOT CONTEND THAT
THE CAPITAL GAINS TAX WAS NOT PAID - HE WOULD NOT BE OBLIGED TO REPORT
THAT INCOME.  BUT REINFELD SAYS NO, 'THAT WAS THE RESULT OF EXTORTION. 
HE GOT THAT MONEY OUT OF ME BY THREATENING ME AND MY FAMILY,' AND HE
TOLD THE INSTANCES WHERE THOSE THREATS WERE MADE.  THERE IS ONE PIECE
OF CORROBORATION OF THAT, AND THAT IS FROM ONE OF THE SIX OR SEVEN
PEOPLE WHO WERE PRESENT IN HOLTZ'S CELLAR  ...  . 

"IF THAT MONEY WAS EXTORTED AND WAS PAID AS A RESULT OF THREATS, THEN
IT WAS TAXABLE INCOME AND RUTKIN WAS UNDER THE DUTY OF REPORTING THAT
TAX  ...  . 

     *         *         *         *         * 

"  ...  THERE IS NO CONTENTION HERE THAT THE DEFENDANTS DIDN'T KNOW
HE GOT THE $250,000; THE WHOLE POINT IS WHETHER HE GOT IT BY EXTORTION
OR WHETHER HE GOT IT PROPERLY.  IF HE GOT IT PROPERLY THE TAX WAS
ALREADY PAID." 

FN4  THE UNITED STATES CONCEDES THAT ALTHOUGH, ON A STRICT
CONSTRUCTION OF THE INTERNAL REVENUE CODE, IT MAY BE THAT THE PROCEEDS
OF THE SALES SHOULD HAVE BEEN REPORTED BY THE BENEFICIAL RATHER THAN BY
THE RECORD OWNERS, THEIR FAILURE TO SO REPORT THE PROCEEDS DOES NOT
PROVIDE A SATISFACTORY BASIS FOR A CHARGE AGAINST THEM OF A WILLFUL
ATTEMPT TO EVADE AND DEFEAT THE TAX VIOLATION OF SEC. 145(B).    FN5
REINFELD TESTIFIED: 

"Q.  AND DID YOU THINK THAT THEIR (YOUR FAMILY'S) LIVES WERE IN
DANGER?  A. I THOUGHT SO, YES. 

"Q.  DID YOU DO ANYTHING TO PROTECT THEIR LIVES?  A. I PAID OFF. 

"Q.  YOU THOUGHT THAT WOULD PROTECT THEM FROM A GUNNING MAN?  A. I
HOPED SO." 

FN6  THAT ISSUE WAS PRESENTED TO THE JURY IN CONFORMITY WITH THE
VIEWS OF THIS COURT EXPRESSED IN SPIES V. UNITED STATES, 317 U.S. 492,
499.  THE CHARGE INCLUDED THE FOLLOWING: 

"IF THAT MONEY WAS EXTORTED AND WAS PAID AS A RESULT OF THREATS, THEN
IT WAS TAXABLE INCOME AND RUTKIN WAS UNDER THE DUTY OF REPORTING THAT
TAX.  BUT AS I INDICATED TO YOU BEFORE, THE MERE FAILURE TO REPORT IT
DOESN'T SATISFY THE REQUIREMENTS OF THE LAW WITH REGARD TO THE
VIOLATION OF THIS STATUTE, THERE MUST BE SOMETHING ELSE WHICH WILL
INDICATE THE WILLFUL INTENT TO DEFEAT AND EVADE THE TAX.  YOU MAY
CONSIDER OTHER ELEMENTS THAT APPEAR IN THE EVIDENCE, THE FACT THAT THIS
MONEY WAS PAID OVER IN CASH; THAT NO RECORD OF ANY KIND WAS MADE OF THE
RECEIPT OF THAT MONEY; THAT THE MONEY WAS SPLIT AND $100,000 OF IT SENT
TO THE SISTER-IN-LAW OF THE DEFENDANT TO BE PLACED IN HER VAULT OR
'WAULT' AS IT HAS BEEN CALLED HERE, AND THAT THE OTHER $150,000 WAS
PLACED IN THE DEFENDANT'S OWN VAULT.  YOU MAY CONSIDER THESE AS FACTORS
SURROUNDING THE WHOLE TRANSACTION. 

"RUTKIN SAYS THAT HE KEPT NO BOOKS; KEPT NO BOOKS AT THAT TIME NOR AT
ANY OTHER TIME; KEPT NO BOOKS WHEN HE RECEIVED HIS PROFIT, SIXTY,
SEVENTY, EIGHTY THOUSAND DOLLARS A YEAR, I THINK IT WAS, FROM THE
BOOTLEGGING, AND ADMITS THAT HE PAID NO TAX; KEPT NO BOOKS WHEN HE GOT
THIS $250,000.  THESE ARE ALL THINGS THAT YOU MAY CONSIDER AS
CIRCUMSTANCES SURROUNDING THE WHOLE PROCEDURE.  THE PAYMENT OF $250,000
WAS MADE IN THE PRESENCE OF OTHER PEOPLE, THESE PEOPLE BEING ZWILLMAN,
AS I RECALL IT, AND STACHER WHO WERE THERE WITH RUTKIN AND THE
LAWYERS.  WELL, NEITHER THE LAWYERS NOR ANY OF THESE PEOPLE, IT SEEMS
TO ME, WOULD BE INCLINED TO GO OUT AND PUBLISH IT." 

THERE IS NO SUGGESTION THAT PETITIONER RELIED, AT ANY TIME, UPON ANY
DEFENSE FOR HIS OMISSION OF THE $250,000 FROM HIS TAX RETURN OTHER THAN
HIS FALSE CLAIM THAT IT REPRESENTED HIS BENEFICIAL INTEREST IN BROWNE
VINTNERS STOCK AND THAT THE STOCKHOLDING NOMINEES HAD PAID A CAPITAL
GAINS TAX ON THAT INTEREST WHEN IT WAS SOLD IN 1940.  WHEN THIS CLAIM
WAS PROVED TO HAVE BEEN FALSE, AND NECESSARILY KNOWN BY PETITIONER TO
HAVE BEEN FALSE, THAT PROOF NOT ONLY DESTROYED PETITIONER'S CLAIM TO
THE MONEY ITSELF, BUT IT ALSO DEMONSTRATED THE WILLFULNESS OF HIS
ATTEMPT TO EVADE OR DEFEAT PAYING ANY TAX ON THE $250,000. 

FN7  IN THE NEW JERSEY STATUTE, IN EFFECT IN 1943, EXTORTION WAS
DEFINED AS FOLLOWS: 

"ANY PERSON WHO, WITH INTENT TO EXTORT FROM ANY PERSON ANY MONEY OR
OTHER THING OF VALUE  ... SHALL DIRECTLY OR INDIRECTLY THREATEN TO KILL
OR TO DO ANY BODILY INJURY TO ANY MAN, WOMAN OR CHILD UNLESS A SUM OF
MONEY BE PAID, SHALL BE GUILTY OF A HIGH MISDEMEANOR AND PUNISHED BY
IMPRISONMENT AT HARD LABOR FOR A TERM NOT EXCEEDING THIRTY YEARS, OR BY
A FINE NOT EXCEEDING FIVE THOUSAND DOLLARS, OR BOTH."  N.J.S.A. 2:127
4. 

SEE ALSO, THE FEDERAL STATUTE, NOW IN EFFECT, RELATING TO EXTORTION
AFFECTING INTERSTATE COMMERCE:  "THE TERM 'EXTORTION' MEANS THE
OBTAINING OF PROPERTY FROM ANOTHER, WITH HIS CONSENT, INDUCED BY
WRONGFUL USE OF ACTUAL OR THREATENED FORCE, VIOLENCE, OR FEAR, OR UNDER
COLOR OF OFFICIAL RIGHT."  60 STAT. 420, 18 U.S.C. SEC. 42E-1(C). 

FN8  JOHNSON V. UNITED STATES, 318 U.S. 189 (MONEY PAID TO A
POLITICAL LEADER AS PROTECTION AGAINST POLICE INTERFERENCE WITH
GAMBLING); UNITED STATES V. SULLIVAN, 274 U.S. 259 (ILLICIT TRAFFIC IN
LIQUOR); HUMPHREYS V. COMMISSIONER, 125 F.2D 340 (PROTECTION PAYMENTS
TO RACKETEER AND RANSOM PAID TO KIDNAPPER); CHADICK V. UNITED STATES,
77 F.2D 961 (GRAFT); UNITED STATES V. COMMERFORD, 64 F.2D 28 (BRIBES);
PATTERSON V. ANDERSON, 20 F. SUPP. 799 (UNLAWFUL INSURANCE POLICIES);
PETIT V. COMMISSIONER, 10 T.C. 1253 (BLACK MARKET GAINS); DROGE V.
COMMISSIONER, 35 B.T.A. 829 (LOTTERIES); RICKARD V. COMMISSIONER, 15
B.T.A. 316 (ILLEGAL PRIZE FIGHT PICTURES); MCKENNA V. COMMISSIONER, 1
B.T.A. 326 (RACE TRACK BOOKMAKING). 

FN9  FOR FURTHER DISCUSSION SEE DISSENT IN COMMISSIONER V. WILCOX,
327 U.S. 404, 410-411. 

FN10  FOR EXAMPLE, SEE AKERS V. SCOFIELD, 167 F.2D 718.  THERE THE
TAXPAYER SWINDLED A WEALTHY WIDOW OUT OF SUBSTANTIAL FUNDS WITH WHICH
HE WAS TO CONDUCT FRAUDULENTLY REPRESENTED TREASURE HUNTS.   HE WAS
REQUIRED TO PAY TAXES ON THOSE FUNDS. 

FN11  HELVERING V. BRUUN, 309 U.S. 461, 468; HELVERING V. CLIFFORD,
309 U.S. 331, 334; HELVERING V. MIDLAND INS. CO., 300 U.S. 216, 223;
UNITED STATES V. SAFETY CAR HEATING CO., 297 U.S. 88, 93; DOUGLAS V.
WILLCUTS, 296 U.S. 1, 9; HELVERING V. STOCKHOLMS ENSKILDA BANK, 293
U.S. 84, 89; BOWERS V. KERBAUGH-EMPIRE CO., 271 U.S. 170, 174; IRWIN V.
GAVIT, 268 U.S. 161, 166; EISNER V. MACOMBER, 252 U.S. 189, 203.  THE
SCOPE OF SEC. 22(A) IN SOME INSTANCES IS LIMITED BY SPECIFIC
PROVISIONS, E.G., SEC. 22(B)(9) (INCOME FROM DISCHARGE OF
INDEBTEDNESS), SEC. 22(B)(13) (COMPENSATION OF MEMBERS OF ARMED
FORCES), BUT NO SUCH PROVISIONS APPLY HERE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE REED, MR. JUSTICE
FRANKFURTER, AND MR. JUSTICE DOUGLAS CONCUR, DISSENTING. 

IN COMMISSIONER V. WILCOX, 327 U.S. 404, DECIDED FEBRUARY, 1946, WE
HELD THAT EMBEZZLED MONEY DID NOT CONSTITUTE TAXABLE INCOME TO THE
EMBEZZLER UNDER SEC. 22(A) OF THE INTERNAL REVENUE CODE.  WE THERE
POINTED OUT THAT THE EMBEZZLER HAD NO BONA FIDE LEGAL OR EQUITABLE
CLAIM TO THE MONEY, WAS UNDER A DEFINITE LEGAL OBLIGATION TO RETURN IT
TO ITS RIGHTFUL OWNER, AND CONSEQUENTLY HAD NO MORE RECEIVED THE KIND
OF "GAIN" OR "INCOME" WHICH CONGRESS HAS TAXED THAN IF HE HAD MERELY
BORROWED MONEY.  ONE WHO EXTORTS MONEY NOT OWED HIM STANDS IN THIS
PRECISE SITUATION.  HE HAS NEITHER LEGAL NOR EQUITABLE CLAIM TO THE
EXTORTED MONEY AND IS UNDER A CONTINUING OBLIGATION TO RETURN IT TO THE
OWNER.  SEE, E.G., BANK OF THE UNITED STATES V. BANK OF WASHINGTON, 6
PET. 8, 19; MILLER V. EISELE, 111 N.J.L. 268, 168 A. 426; N.J. STAT.
ANN. 2:73-1.  A COMPARISON OF MR. JUSTICE BURTON'S OPINION IN THIS CASE
WITH HIS DISSENT IN THE WILCOX CASE REVEALS BEYOND DOUBT THAT THE COURT
TODAY ADOPTS THE REASONING OF HIS PRIOR DISSENT, THEREBY REJECTING THE
WILCOX INTERPRETATION OF SEC. 22(A).  A TAX INTERPRETATION WHICH
CONGRESS HAS LEFT IN EFFECT FOR SIX YEARS IS THUS ALTERED LARGELY AS A
CONSEQUENCE OF A CHANGE IN THE COURT'S PERSONNEL.  I THINK THAT OUR
FORMER INTERPRETATION WAS RIGHT AND DO NOT BELIEVE THAT THE GOVERNMENT
IS SUFFERING BECAUSE OF A FAILURE TO COLLECT INCOME TAXES FROM
EMBEZZLERS AND EXTORTIONERS.  INDEED FURTHER CONSIDERATIONS STRENGTHEN
MY SUPPORT OF OUR WILCOX HOLDING. 

I FULLY AGREE THAT EARNINGS FROM BUSINESSES SUCH AS GAMBLING AND
BOOTLEGGING ARE SUBJECT TO THE INCOME TAX LAW EVEN THOUGH THESE
EARNINGS ARE DERIVED FROM ILLEGAL TRANSACTIONS.  UNITED STATES V.
SULLIVAN, 274 U.S. 259.  THE MAJORITY SEEMS TO THINK THAT THE WILCOX
CASE HOLDS OTHERWISE BECAUSE SOME STATES HAVE LAWS WHICH UNDER SPECIAL
CIRCUMSTANCES PERMIT SOME PARTICULAR GROUPS TO ASSERT A LEGAL CLAIM FOR
RECOVERY OF GAMBLING LOSSES OR MONEY PAID FOR BOOTLEG LIQUOR.  BUT
THESE STATE LAWS VARY FAR TOO MUCH IN THEIR SCOPE AND OPERATION TO
JUSTIFY SAYING THAT THESE BUSINESSMEN NEVER HAVE A BONA FIDE LEGAL OR
EQUITABLE CLAIM TO MONIES PAID THEM.  AND "  ...  WE MUST GENERALLY
ASSUME, IN THE ABSENCE OF A PLAIN INDICATION TO THE CONTRARY, THAT
CONGRESS WHEN IT ENACTS A STATUTE IS NOT MAKING THE APPLICATION OF THE
FEDERAL ACT DEPENDENT ON STATE LAW."  JEROME V. UNITED STATES, 318 U.S.
101, 104.  MOREOVER, EVEN IF WE WERE TO TAKE THESE STATE RECOUPMENT
LAWS INTO CONSIDERATION, THE SUMS RECOVERED UNDER THEM WOULD DO NO MORE
THAN DECREASE THE YEARLY NET EARNINGS OF SUCH QUESTIONABLE BUSINESSES. 
TO ALL INTENTS AND PURPOSES BOOTLEGGERS AND GAMBLERS ARE ENGAGED IN
GOING BUSINESSES AND MAKE REGULAR BUSINESS PROFITS WHICH SHOULD BE
TAXED IN THE SAME MANNER AS PROFITS MADE THROUGH MORE LEGITIMATE
ENDEAVOR.  HOWEVER, IN MY JUDGMENT IT STRETCHES PREVIOUS TAX
INTERPRETATIONS TOO FAR TO CLASSIFY THE SPORADIC LOOT OF AN EMBEZZLER,
AN EXTORTIONER OR A ROBBER AS TAXABLE EARNINGS DERIVED FROM A BUSINESS,
TRADE OR A PROFESSION.  I JUST DO NOT THINK CONGRESS INTENDED TO TREAT
THE PLUNDER OF SUCH CRIMINALS AS THEIRS. 

IT SEEMS ILLUSORY TO BELIEVE, AS THE MAJORITY APPARENTLY DOES, THAT
THE BURDEN ON HONEST AMERICAN TAXPAYERS WILL BE LIGHTENED BY A
GOVERNMENTAL POLICY OF PURSUING EXTORTIONERS IN FUTILE EFFORTS TO
COLLECT INCOME TAXES.  I VENTURE THE GUESS THAT THIS ONE TRIAL HAS COST
UNITED STATES TAXPAYERS MORE MONEY THAN THE GOVERNMENT WILL COLLECT IN
TAXES FROM EXTORTIONERS IN THE NEXT TWENTY-FIVE YEARS.  IF THIS STATUTE
IS TO BE INTERPRETED ON THE BASIS OF WHAT IS FINANCIALLY BEST FOR
HONEST TAXPAYERS, IT PROBABLY SHOULD BE CONSTRUED SO AS TO SAVE MONEY
BY ELIMINATING FEDERAL PROSECUTIONS OF STATE CRIMES UNDER THE GUISE OF
PUNISHING TAX EVADERS. 

SINCE IT SEEMS PRETTY CLEAR THAT THE GOVERNMENT CAN NEVER COLLECT
SUBSTANTIAL AMOUNTS OF MONEY FROM EXTORTIONERS, THERE MUST BE ANOTHER
REASON FOR APPLYING THE TAX LAW TO MONEY THEY EXTRACT FROM OTHERS.  THE
GOVERNMENT'S BRIEF IS SUGGESTIVE OF THE ONLY OTHER REASON THAT OCCURS
TO ME - TO GIVE WASHINGTON MORE AND MORE POWER TO PUNISH PURELY LOCAL
CRIMES SUCH AS EMBEZZLEMENT AND EXTORTION.  TODAY'S DECISION
ILLUSTRATES AN EXPANSION OF FEDERAL CRIMINAL JURISDICTION INTO FIELDS
OF LAW ENFORCEMENT HERETOFORE WHOLLY LEFT TO STATES AND LOCAL
COMMUNITIES.  I DOUBT IF THIS EXPANSION IS WISE FROM THE STANDPOINT OF
THE UNITED STATES OR THE STATES. 

INSOFAR AS THE UNITED STATES IS CONCERNED, MANY THINK THAT TAKING
OVER ENFORCEMENT OF LOCAL CRIMINAL LAWS LOWERS THE PRESTIGE OF THE
FEDERAL SYSTEM OF JUSTICE.  IT CERTAINLY TENDS TO MAKE THE FEDERAL
SYSTEM TOP-HEAVY.  OF SUPREME IMPORTANCE IS THE FACT THAT THE UNITED
STATES CANNOT PERFORM THE MONUMENTAL TASKS WHICH LIE BEYOND STATE POWER
IF THE TIME, ENERGY AND FUNDS OF FEDERAL INSTITUTIONS ARE EXPENDED IN
THE FIELD OF STATE CRIMINAL LAW ENFORCEMENT.  (FN1) 

FEDERAL ENCROACHMENT UPON LOCAL CRIMINAL JURISDICTION CAN ALSO BE
VERY INJURIOUS TO THE STATES.  EXTORTION, ROBBERY, EMBEZZLEMENT AND
OFFENSES OF THAT NATURE ARE TRADITIONALLY MATTERS OF LOCAL CONCERN. 
(FN2)  THE PRECISE ELEMENTS OF THESE OFFENSES AS WELL AS THE PROBLEMS
UNDERLYING THEM VARY FROM STATE TO STATE.  FEDERAL ASSUMPTION OF THE
JOB OF ENFORCING THESE LAWS MUST OF NECESSITY TEND TO FREE THE STATES
FROM A SENSE OF RESPONSIBILITY FOR THEIR OWN LOCAL CONDITIONS.  (FN3)
EVEN WHEN STATES ATTEMPT TO PLAY THEIR TRADITIONAL ROLE IN THE FIELD OF
LAW ENFORCEMENT, THE OVERRIDING FEDERAL AUTHORITY FORCES THEM TO
SURRENDER CONTROL OVER THE MANNER AND POLICY OF CONSTRUING AND APPLYING
THEIR OWN LAWS.  STATE COURTS NOT ONLY LOSE CONTROL OVER THE
INTERPRETATION OF THEIR OWN LAWS, (FN4) BUT ALSO ARE DEPRIVED OF THE
CHANCE TO USE THE DISCRETION VESTED IN THEM BY STATE LEGISLATURES TO
IMPOSE SENTENCES IN ACCORDANCE WITH LOCAL IDEAS.  MOREOVER, STATE
PROSECUTORS ARE DEPRIVED OF THE ALL-IMPORTANT FUNCTION OF DECIDING WHAT
LOCAL OFFENDERS SHOULD BE PROSECUTED.  FINAL AUTHORITY TO MAKE THESE
IMPORTANT DECISIONS BECOMES LOCATED IN THE DISTANT CITY OF WASHINGTON,
D.C. HERE, AS ELSEWHERE, TOO MANY COOKS MAY SPOIL THE BROTH. 

MOREOVER, I DOUBT IF THIS EXPANSION OF FEDERAL CRIMINAL JURISDICTION
CAN BE CARRIED ON IN A MANNER CONSISTENT WITH OUR TRADITIONAL IDEAS OF
WHAT CONSTITUTES A FAIR TRIAL IN CRIMINAL CASES.  THERE IS THE QUESTION
OF THE WISDOM AND FAIRNESS OF SUBJECTING A PERSON TO DOUBLE AND EVEN
TRIPLE PROSECUTIONS FOR THE SAME CONDUCT, SINCE THE NATION, STATE AND
MUNICIPALITY MIGHT MAKE THIS ONE MISTAKE OR WRONG PUNISHABLE AS A
CRIME.  "THAT CONSIDERATION GIVES ADDITIONAL WEIGHT TO THE VIEW THAT
WHERE CONGRESS IS CREATING OFFENSES WHICH DUPLICATE OR BUILD UPON STATE
LAW, COURTS SHOULD BE RELUCTANT TO EXPAND THE DEFINED OFFENSES BEYOND
THE CLEAR REQUIREMENTS OF THE TERMS OF THE STATUTE."   JEROME V. UNITED
STATES, SUPRA, 105.  OF COURSE, LOOKED AT TECHNICALLY, MULTIPLE
PROSECUTIONS FOR THE SAME CONDUCT COULD BE AVOIDED BY NATIONAL
PROSECUTION OF ONE PART OF THE CONDUCT, STATE PROSECUTION OF ANOTHER
PART, AND MUNICIPAL PROSECUTION OF A THIRD PART.  THIS WOULD STILL
LEAVE A DEFENDANT FACED WITH THE BURDEN OF DEFENDING THREE SEPARATE
PROSECUTIONS. 

EXPANSION OF FEDERAL CRIMINAL JURISDICTION ENTAILS MANY OTHER UNFAIR
AND COMPLICATING FACTORS.  CRIMINAL RULES OF SUBSTANCE AND OF PROCEDURE
VARY WIDELY AMONG THE JURISDICTIONS.  (FN5)  PUNISHMENT IS FREQUENTLY
DIFFERENT.  IN FACT, THE SAME KIND OF CONDUCT MAY BE IGNORED AS NOT
WORTH CRIMINAL PUNISHMENT BY ONE JURISDICTION WHILE CONSIDERED A
SERIOUS CRIMINAL OFFENSE BY ANOTHER.  FOR EXAMPLE, UNDER THE FEDERAL
WHITE SALVE LAW MEN CAN BE IMPRISONED FIVE YEARS FOR CONDUCT WHICH MANY
STATES WOULD NOT HOLD CRIMINAL AT ALL.  SCHWARTZ, FEDERAL CRIMINAL
JURISDICTION AND PROSECUTORS' DISCRETION, 13 LAW AND CONTEMPORARY
PROBLEMS 64, 72.  WHEN FACED WITH SPECIFIC FEDERAL LEGISLATION, SUCH
DIFFERENCES IN TREATMENT MAY BE INEVITABLE, BUT I DO NOT THINK THE TAX
LAWS SHOULD BE JUDICIALLY EXTENDED FOR THE PURPOSE OF TAKING FROM LOCAL
OFFICIALS THE RESPONSIBILITY FOR PROSECUTING LOCAL OFFENSES. 

WHEN THE GOVERNMENT TAKES OVER A CASE LIKE THE ONE BEFORE US, THE
RESULTING CONFUSION OF ISSUES IS MANIFESTLY PREJUDICIAL TO THE
DEFENDANT.  HERE FOR INSTANCE IT CAN HARDLY BE SAID THAT RUTKIN WAS
TRIED FOR TAX EVASION.  MOST OF THE 900 PRINTED PAGES OF ORAL TESTIMONY
IN THE TWO WEEKS' TRIAL ARE DEVOTED TO PROOF OF THINGS OTHER THAN AN
ATTEMPT TO EVADE THE TAX.  FOUR PAGES DEAL WITH RUTKIN'S ALLEGEDLY
FALSE 1943 TAX RETURN; THREE PAGES DEAL WITH THE AMOUNT OF TAX RUTKIN
WOULD HAVE OWED IF HE HAD RECEIVED $250,000 MORE INCOME THAN HE
ACTUALLY REPORTED; SIX PAGES CONTAIN TESTIMONY OF RUTKIN TENDING TO
SHOW WILLFUL EVASION OF THE TAX LAWS SO AS TO BRING THE CASE WITHIN
SPIES V. UNITED STATES, 317 U.S. 492.  A MERE REFERENCE TO THE CONTENTS
OF THE REMAINING 887 PAGES SHOWS WHAT A GREAT THREAT THERE WAS THAT
RUTKIN WOULD BE CONVICTED BECAUSE HE WAS A "BAD MAN" ("SCOUNDREL" TO
USE THE TRIAL COURT'S TITLE) REGARDLESS OF WHETHER HE WAS GUILTY OR
INNOCENT OF THE TAX EVASION CHARGED. 

MOST OF THE EVIDENCE DEALT WITH THE FOLLOWING ASPECTS OF RUTKIN'S
PAST LIFE AND ASSOCIATIONS: BACK IN PROHIBITION DAYS RUTKIN HAD JOINED
ONE REINFELD AND OTHERS IN A BOOTLEGGING SCHEME CALLED THE "HIGH SEAS
VENTURE."  THE ORGANIZATION MADE MILLIONS.  ABOUT 1940, SOME TIME AFTER
PROHIBITION ENDED, REINFELD, APPARENTLY ACTING FOR THE GROUP, SOLD THE
BUSINESS ESTABLISHMENT FOR ABOUT $7,500,000 NET.  REINFELD'S ACCOUNTING
METHODS AND MANAGEMENT OF THE PROCEEDS WERE NOT SATISFACTORY TO HIS
ASSOCIATES.  THEY CLAIMED THAT REINFELD HELD BACK MORE THAN HIS SHARE
OF THE MILLIONS.  REINFELD CLAIMED THAT SOME OF HIS FORMER ASSOCIATES,
INCLUDING RUTKIN, WERE "OVERDRAWN" AND ENTITLED TO NOTHING OUT OF THE
$7,500,000.  THIS QUARREL WENT ON FOR SEVERAL YEARS DURING WHICH TIME
REINFELD WAS REQUIRED TO PAY HUNDREDS OF THOUSANDS OF DOLLARS TO FORMER
PARTNERS AS A RESULT OF THEIR CLAIMS THAT HE HAD SWINDLED THEM.  RUTKIN
WAS ONE OF THEM.  RUTKIN'S $250,000 WAS PAID TO HIM BY LAWYERS WHOSE
REPUTATIONS SEEM TO HAVE BEEN ABOVE REPROACH.  IT WAS PAID OPENLY.  AND
IT WAS SOME EIGHT YEARS LATER WHEN RUTKIN SUED REINFELD FOR MORE
MILLIONS THAT REINFELD, APPARENTLY FOR THE FIRST TIME, CHARGED THAT
RUTKIN HAD EXTORTED THE $250,000 UNDER THREATS OF DEATH.  YET HE HAS
BEEN CONVICTED HERE OF FEDERAL TAX EVASION ON THE THEORY THAT HE WAS
GUILTY OF THE CRIME OF "EXTORTION."  (FN6) 

FROM THE BEGINNING TO THE END THE EVIDENCE IN THIS CASE WAS DEVOTED
TO SHOWING THE LAWLESS LIFE RUTKIN, REINFELD AND THEIR ASSOCIATES LED
FROM THE 1920'S TO 1950, RANGING FROM BOOTLEGGING TO BRIBERY TO
GAMBLING.  THE CHARGE OF THE COURT LARGELY EMPHASIZED AND REEMPHASIZED
THE INIQUITY OF THE CRIMINAL CONDUCT SHOWN BY THE TESTIMONY.  EARLY IN
HIS CHARGE THE TRIAL COURT TOLD THE JURY: 

"YOU ARE NOT DECIDING WHICH IS THE BIGGER SCOUNDREL, REINFELD OR
RUTKIN; THEY HAVE BOTH BLANDLY ADMITTED ON THE STAND THAT THEY
PROSTITUTED JUSTICE IN THIS COUNTRY; THAT THEY PAID PUBLIC SERVANTS TO
CLOSE THEIR EYES TO LAW VIOLATION, AND THAT IS A CANKER WHICH EATS AWAY
AT THE BODY PUBLIC.  BUT YOU ARE NOT PASSING UPON RESPECTIVE DEGREES OF
SCOUNDRELISM BETWEEN ANY TWO PEOPLE.  THE BLAND WAY IN WHICH WE WERE
TOLD THAT THE REINFELDS AND THE RUTKINS AND THE ZWILLMANS AND ALL OF
THE OTHERS PROSTITUTED JUSTICE SHOULD GIVE US CAUSE FOR PAUSE, BUT WE
ARE NOT PASSING ON THAT QUESTION NOW." 

IN CONCLUDING HIS CHARGE THE TRIAL COURT TOLD THE JURY: 

"THE GOVERNMENT OF THE UNITED STATES DOESN'T ASK YOU TO SACRIFICE
ANYBODY TO PROVE ITS MIGHT.  IT ASKS YOU TO DO JUSTICE.  THAT'S ALL
THAT RUTKIN HAS A RIGHT TO ASK YOU TO DO, AND THAT'S WHAT THE
GOVERNMENT OF THE UNITED STATES ASKS YOU TO DO.  IT ASKS YOU TO
REMEMBER ITS RIGHTS TOO, REMEMBERING THAT UNPUNISHED CRIME, UNDETECTED
CRIME, ARE THREATS TO THE MAJESTY AND DIGNITY OF OUR GOVERNMENT; AND
THAT UNPUNSIHED CRIME UNDERMINES OUR GOVERNMENT.  WE ALL OF US MUST DO
THAT WHICH IS OUR DUTY AND DO IT WITHOUT FEAR OR FAVOR." 

MY STUDY OF THIS RECORD LEADS ME TO BELIEVE THAT THE FANTASTIC STORY
OF SUPPOSED EXTORTION TOLD HERE WOULD PROBABLY NEVER HAVE BEEN ACCEPTED
BY A JURY IF PRESENTED IN A TRIAL UNCOLORED BY THE MANIFOLD OTHER
INFLAMMATORY MATTERS WHICH TOOK UP 887 OF THE 900 PAGES IN THIS "TAX
EVASION" CASE. 

IF WE ARE GOING TO DEPART FOM THE WILCOX HOLDING, I THINK THIS IS A
POOR CASE IN WHICH TO DO SO. I WOULD REVERSE THIS JUDGMENT. 

FN1  IN OPPOSING CERTAIN ANTI-THEFT LEGISLATION, ATTORNEY GENERAL
MITCHELL WROTE SENATOR NORRIS THAT, "  ...  THE MACHINERY NOW PROVIDED
BY THE FEDERAL GOVERNMENT FOR THE PROSECUTION AND PUNISHMENT OF CRIME
IS OVERTAXED. 

"EARNEST EFFORTS ARE BEING MADE TO DEVISE METHODS FOR THE RELIEF OF
THOSE FEDERAL COURTS WHICH ARE CONGESTED AND TO INCREASE THE CAPACITY
OF OUR PRISONS TO SATISFY PRESENT REQUIREMENTS.  UNTIL WE HAVE DEALT
ADEQUATELY WITH THE TROUBLES WHICH NOW CONFRONT US WE OUGHT NOT TO BE
ADDING TO THE BURDEN OF THE LAW-ENFORCEMENT MACHINERY BY ENACTING
LEGISLATION OF THIS KIND."  72 CONG. REC. 6214.  ALONG THIS LINE, IT
HAS BEEN SAID THAT, "IT WILL BE A LONG TIME BEFORE THE FEW HUNDRED
AGENTS OF THE DEPARTMENT OF JUSTICE CAN EXPAND ENOUGH TO DO THE WORK
NOW GIVEN TO 130,000 PEACE OFFICERS IN THE UNITED STATES  ...  ." 
BROAD PROGRAM NEEDED FOR CRIME CONTROL, 20 J. AM. JUD.  SOC.  196,
200. 

FN2  IN 1950 AND 1951, THE SENATE CRIME COMMITTEE CONDUCTED
INVESTIGATIONS OF ORGANIZED CRIME.  IN ITS THIRD INTERIM REPORT THE
COMMITTEE STATED, "ANY PROGRAM FOR CONTROLLING ORGANIZED CRIME MUST
TAKE INTO ACCOUNT THE FUNDAMENTAL NATURE OF OUR GOVERNMENTAL SYSTEM. 
THE ENFORCEMENT OF THE CRIMINAL LAW IS PRIMARILY A STATE AND LOCAL
RESPONSIBILITY."  S. REP. NO. 307, 82D CONG., 1ST SESS. 5. 

FN3  COMMENTING ON THIS FACT, ATTORNEY GENERAL MITCHELL SAID,
"EXPERIENCE HAS SHOWN THAT WHEN CONGRESS ENACTS CRIMINAL LEGISLATION OF
THIS TYPE THE TENDENCY IS FOR THE STATE AUTHORITIES TO CEASE THEIR
EFFORTS TOWARD PUNISHING THE OFFENDERS AND TO LEAVE IT TO THE FEDERAL
AUTHORITIES AND THE FEDERAL COURTS.  THAT HAS BEEN THE EXPERIENCE UNDER
THE DYER ACT."  72 CONG. REC.  6214.  SEE ALSO BOUDIN, THE PLACE OF THE
ANTI-RACKETEERING ACT IN OUR CONSTITUTIONAL-LEGAL SYSTEM, 28 CORNELL
L.Q. 261, 270 ET SEQ. 

UNITED STATES V. LANZA, 260 U.S. 377, HELD THAT A DEFENDANT COULD BE
SUBJECTED TO FEDERAL PROSECUTION FOR VIOLATION OF FEDERAL PROHIBITION
LAWS DESPITE THE FACT THAT HE HAD ALREADY BEEN CONVICTED UNDER NEW YORK
LAW FOR THE SAME CONDUCT.  NEEW YORK'S REPEAL OF HER PROHIBITION LAWS
SIX MONTHS LATER HIGHLIGHTS THE LOSS OF STATE RESPONSIBILITY FOR
ENFORCING THE CRIMINAL LAW AFTER THE FEDERAL GOVERNMENT HAS ENTERED THE
FIELD.  N.Y. LAWS 1923, C. 871. 

FN4  SEE N. 5, INFRA. 

FN5  ENFORCEMENT OF ALL OR SOME OF THESE RULES IN THE FEDERAL COURTS
INJECTS AN ELEMENT OF UNCERTAINTY INTO CRIMINAL TRIALS.  QUESTIONS
ARISE AS TO HOW MUCH LAW OF WHAT STATE APPLIES.  THEN THE FEDERAL COURT
MUST ATTEMPT TO DECIDE WHAT THE STATE LAW ACTUALLY IS AND HOW IT
APPLIES TO THE PARTICULAR CONDUCT ALLEGED TO BE CRIMINAL.  MOREOVER, AN
OPPORTUNITY TO OBTAIN AN AUTHORITATIVE DECISION ON A MATTER OF STATE
LAW FROM THE HIGHEST STATE COURT IS DENIED.  THUS ALL THE UNCERTAIN
PROBLEMS INVOLVED IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, ARE THRUST
UPON THOSE ACCUSED OF CRIME IN THE FEDERAL COURTS.  "AND 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 CONST. CO., 269 U.S. 385, 391. 

FN6  THE MAJORITY LEAVE ME IN DOUBT AS TO WHETHER THE "EXTORTION" WAS
A STATE OR FEDERAL CRIME.  SEE N. 5, SUPRA.
..END :

















FRISBIE V. COLLINS 342 U.S. 519 


NO. 331.  ARGUED JANUARY 28, 1952.  - DECIDED MARCH 10, 1952.  - 189
F.2D 464, REVERSED. 


1.  THAT A PERSON WAS FORCIBLY ABDUCTED AND TAKEN FROM ONE STATE TO
ANOTHER TO BE TRIED FOR A CRIME DOES NOT INVALIDATE HIS CONVICTION IN A
COURT OF THE LATTER STATE UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  KER V. ILLINOIS, 119 U.S. 436.  P. 522. 

2.  A DIFFERENT RESULT IS NOT REQUIRED BY THE FEDERAL KIDNAPING ACT,
EVEN IF THE ABDUCTION WAS A VIOLATION OF THAT ACT.  PP. 522-523. 

3.  THERE BEING SOUND ARGUMENTS TO SUPPORT THE CONCLUSION OF THE
COURT OF APPEALS IN THIS CASE THAT THERE WERE "SPECIAL CIRCUMSTANCES"
WHICH REQUIRED PROMPT FEDERAL INTERVENTION, THAT CONCLUSION IS ACCEPTED
BY THIS COURT WITHOUT DECIDING WHETHER STATE REMEDIES HAD BEEN
EXHAUSTED BEFORE RELIEF FROM STATE IMPRISONMENT WAS SOUGHT IN A FEDERAL
COURT.  PP. 520-522. 

FRISBIE, WARDEN V. COLLINS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

THE DISTRICT COURT DENIED RESPONDENT'S PETITION FOR A WRIT OF HABEAS
CORPUS.  THE COURT OF APPEALS REVERSED.  189 F.2D 464.  THIS COURT
GRANTED CERTIORARI.  342 U.S. 865.  REVERSED, P. 523. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ACTING AS HIS OWN LAWYER, (FN1) THE RESPONDENT SHIRLEY COLLINS
BROUGHT THIS HABEAS CORPUS CASE IN A UNITED STATES DISTRICT COURT
SEEKING RELEASE FROM A MICHIGAN STATE PRISON WHERE HE IS SERVING A LIFE
SENTENCE FOR MURDER.  HIS PETITION ALLEGES THAT WHILE HE WAS LIVING IN
CHICAGO, MICHIGAN OFFICERS FORCIBLY SEIZED, HANDCUFFED, BLACKJACKED AND
TOOK HIM TO MICHIGAN.  HE CLAIMS THAT TRIAL AND CONVICTION UNDER SUCH
CIRCUMSTANCES IS IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT AND THE FEDERAL KIDNAPING ACT, (FN2) AND THAT
THEREFORE HIS CONVICTION IS A NULLITY. 

THE DISTRICT COURT DENIED THE WRIT WITHOUT A HEARING ON THE GROUND
THAT THE STATE COURT HAD POWER TO TRY RESPONDENT "REGARDLESS OF HOW
PRESENCE WAS PROCURED."  THE COURT OF APPEALS, ONE JUDGE DISSENTING,
REVERSED AND REMANDED THE CAUSE FOR HEARING.  189 F.2D 464.  IT HELD
THAT THE FEDERAL KIDNAPING ACT HAD CHANGED THE RULE DECLARED IN PRIOR
HOLDINGS OF THIS COURT, THAT A STATE COULD CONSTITUTIONALLY TRY AND
CONVICT A DEFENDANT AFTER ACQUIRING JURISDICTION BY FORCE.  (FN3)  TO
REVIEW THIS IMPORTANT QUESTION WE GRANTED CERTIORARI.  342 U.S. 865. 

WE MUST FIRST DISPOSE OF THE STATE'S CONTENTION THAT THE DISTRICT
COURT SHOULD HAVE DENIED RELIEF ON THE GROUND THAT RESPONDENT HAD AN
AVAILABLE STATE REMEDY.  THIS ARGUMENT OF THE STATE IS A LITTLE CLOUDY,
APPARENTLY BECAUSE OF THE STATE ATTORNEY GENERAL'S DOUBT THAT ANY STATE
PROCEDURE USED COULD POSSIBLY LEAD TO THE GRANTING OF RELIEF.  THERE IS
NO DOUBT THAT AS A GENERAL RULE FEDERAL COURTS SHOULD DENY THE WRIT TO
STATE PRISONERS IF THERE IS "AVAILABLE STATE CORRECTIVE PROCESS."  62
STAT. 967, 28 U.S.C. SEC. 2254.  (FN4)  AS EXPLAINED IN DARR V.
BURFORD, 339 U.S. 200, 210, THIS GENERAL RULE IS NOT RIGID AND
INFLEXIBLE; DISTRICT COURTS MAY DEVIATE FROM IT AND GRANT RELIEF IN
SPECIAL CIRCUMSTANCES.  WHETHER SUCH CIRCUMSTANCES EXIST CALLS FOR A
FACTUAL APPRAISAL BY THE COURT IN EACH SPECIAL SITUATION. 
DETERMINATION OF THIS ISSUE, LIKE OTHERS, IS LARGELY LEFT TO THE TRIAL
COURTS SUBJECT TO APPROPRIATE REVIEW BY THE COURTS OF APPEALS. 

THE TRIAL COURT, POINTING OUT THAT THE MICHIGAN SUPREME COURT HAD
PREVIOUSLY DENIED RELIEF, APPARENTLY ASSUMED THAT NO FURTHER STATE
CORRECTIVE PROCESS WAS AVAILABLE (FN5) AND DECIDED AGAINST RESPONDENT
ON THE MERITS.  FAILURE TO DISCUSS THE AVAILABILITY OF STATE RELIEF MAY
HAVE BEEN DUE TO THE FACT THAT THE STATE DID NOT RAISE THE QUESTION;
INDEED THE RECORD SHOWS NO APPEARANCE OF THE STATE.  (FN6)  THE COURT
OF APPEALS DID EXPRESSLY CONSIDER THE QUESTION OF EXHAUSTION OF STATE
REMEDIES.  IT FOUND THE EXISTENCE OF "SPECIAL CIRCUMSTANCES" WHICH
REQUIRED PROMPT FEDERAL INTERVENTION "IN THIS CASE."  IT WOULD SERVE
NOT USEFUL PURPOSE TO REVIEW THOSE SPECIAL CIRCUMSTANCES IN DETAIL. 
THEY ARE PECULIAR TO THIS CASE, MAY NEVER COME UP AGAIN, AND A
DISCUSSION OF THEM COULD NOT GIVE PRECISION TO THE "SPECIAL
CIRCUMSTANCES" RULE.  IT IS SUFFICIENT TO SAY THAT THERE ARE SOUND
ARGUMENTS TO SUPPORT THE COURT OF APPEALS' CONCLUSION THAT PROMPT
DECISION OF THE ISSUES RAISED WAS DESIRABLE.  WE ACCEPT ITS FINDINGS IN
THIS RESPECT. 

THIS COURT HAS NEVER DEPARTED FROM THE RULE ANNOUNCED IN KER V.
ILLINOIS, 119 U.S. 436, 444, THAT THE POWER OF A COURT TO TRY A PERSON
FOR CRIME IS NOT IMPAIRED BY THE FACT THAT HE HAD BEEN BROUGHT WITHIN
THE COURT'S JURISDICTION BY REASON OF A "FORCIBLE ABDUCTION."  (FN7)
NO PERSUASIVE REASONS ARE NOW PRESENTED TO JUSTIFY OVERRULING THIS LINE
OF CASES.  THEY REST ON THE SOUND BASIS THAT DUE PROCESS OF LAW IS
SATISFIED WHEN ONE PRESENT IN COURT IS CONVICTED OF CRIME AFTER HAVING
BEEN FAIRLY APPRIZED OF THE CHARGES AGAINST HIM AND AFTER A FAIR TRIAL
IN ACCORDANCE WITH CONSTITUTIONAL PROCEDURAL SAFEGUARDS.  THERE IS
NOTHING IN THE CONSTITUTION THAT REQUIRES A COURT TO PERMIT A GUILTY
PERSON RIGHTFULLY CONVICTED TO ESCAPE JUSTICE BECAUSE HE WAS BROUGHT TO
TRIAL AGAINST HIS WILL. 

DESPITE OUR PRIOR DECISIONS, THE COURT OF APPEALS, RELYING ON THE
FEDERAL KIDNAPING ACT, HELD THAT RESPONDENT WAS ENTITLED TO THE WRIT IF
HE COULD PROVE THE FACTS HE ALLEGED.  THE COURT THOUGHT THAT TO HOLD
OTHERWISE AFTER THE PASSAGE OF THE KIDNAPING ACT "WOULD IN PRACTICAL
EFFECT LEND ENCOURAGEMENT TO THE COMMISSION OF CRIMINAL ACTS BY THOSE
SWORN TO ENFORCE THE LAW."  IN CONSIDERING WHETHER THE LAW OF OUR PRIOR
CASES HAS BEEN CHANGED BY THE FEDERAL KIDNAPING ACT, WE ASSUME, WITHOUT
INTIMATING THAT IT IS SO, THAT THE MICHIGAN OFFICERS WOULD HAVE
VIOLATED IT IF THE FACTS ARE AS ALLEGED.  THIS ACT PRESCRIBES IN SOME
DETAIL THE SEVERE SANCTIONS CONGRESS WANTED IT TO HAVE.  PERSONS WHO
HAVE VIOLATED IT CAN BE IMPRISONED FOR A TERM OF YEARS OR FOR LIFE;
UNDER SOME CIRCUMSTANCES VIOLATORS CAN BE GIVEN THE DEATH SENTENCE.  WE
THINK THE ACT CANNOT FAIRLY BE CONSTRUED SO AS TO ADD TO THE LIST OF
SANCTIONS DETAILED A SANCTION BARRING A STATE FROM PROSECUTING PERSONS
WRONGFULLY BROUGHT TO IT BY ITS OFFICERS.  IT MAY BE THAT CONGRESS
COULD ADD SUCH A SANCTION.  (FN8)  WE CANNOT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THAT OF THE
DISTRICT COURT IS AFFIRMED.  IT IS SO ORDERED. 

FN1  WE APPOINTED COUNSEL TO REPRESENT RESPONDENT IN THIS COURT.  342
U.S. 892. 

FN2  47 STAT. 326, AS AMENDED, 18 U.S.C. SEC. 1201. 

FN3  KER V. ILLINOIS, 119 U.S. 436; MAHON V. JUSTICE, 127 U.S. 700. 
SEE ALSO LASCELLES V. GEORGIA, 148 U.S. 537; IN RE JOHNSON, 167 U.S.
120. 

FN4  "AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A
PERSON IN CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT
BE GRANTED UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE
REMEDIES AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER
AN ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER. 

"AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

FN5  THE COURT SAID, "PETITIONER ORIGINALLY FILED A PETITION FOR A
WRIT OF HABEAS CORPUS IN THE SUPREME COURT OF THE STATE OF MICHIGAN
WHICH WAS DENIED ON JUNE 22, 1949.  HE THEN FILED A PETITION FOR A WRIT
IN THIS DISTRICT, ON THE GROUND THAT THE COMPLAINT IN THE STATE COURT
ACTION WAS DEFECTIVE AND THAT A FAULTY WARRANT WAS ISSUED FOR HIS
ARREST, CLAIMING FURTHER THAT HE WAS KIDNAPPED BY MICHIGAN POLICE
AUTHORITIES IN CHICAGO, ILLINOIS, AND BROUGHT TO MICHIGAN FOR TRIAL. 
THIS PETITION WAS ALSO DENIED." 

FN6  SO FAR AS THE RECORD SHOWS, THE STATE'S FIRST OBJECTION TO
FEDERAL COURT CONSIDERATION OF THIS CASE WAS MADE AFTER THE COURT OF
APPEALS DECIDED IN RESPONDENT'S FAVOR.  A MOTION FOR REHEARING THEN
FILED ALLEGED THAT RESPONDENT HAD MADE SEVERAL FUTILE EFFORTS TO HAVE
HIS CONVICTION REVIEWED.  THE MOTION ALSO DENIED THAT THE PARTICULAR
GROUND HERE RELIED ON HAD PREVIOUSLY BEEN RAISED. 

FN7  SEE CASES CITED, SUPRA, N. 2. 

FN8  CF. MAHON V. JUSTICE, SUPRA, N. 3, 705. 
..END :





CARLSON V. LANDON 342 U.S. 524 


NO. 35.  ARGUED NOVEMBER 26, 1951.  - DECIDED MARCH 10, 1952.  - 187
F.2D 991, AFFIRMED.  - 187 F.2D 802, JUDGMENT VACATED AND CAUSE
REMANDED. 


1.  UNDER SEC. 20(A) OF THE IMMIGRATION ACT, AS AMENDED BY SEC. 23 OF
THE INTERNAL SECURITY ACT, THE ATTORNEY GENERAL MAY, IN HIS DISCRETION,
HOLD IN CUSTODY WITHOUT BAIL, PENDING DETERMINATION AS TO THEIR
DEPORTABILITY, ALIENS WHO ARE MEMBERS OF THE COMMUNIST PARTY OF THE
UNITED STATES, WHEN THERE IS REASONABLE CAUSE TO BELIEVE THAT THEIR
RELEASE ON BAIL WOULD ENDANGER THE SAFETY AND WELFARE OF THE UNITED
STATES.  PP. 526-547. 

2.  THE LACK OF A CLAUSE IN THE CONSTITUTION SPECIFICALLY EMPOWERING
SUCH ACTION DOES NOT RENDER CONGRESS IMPOTENT TO REQUIRE THE EXPULSION
OF RESIDENT ALIEN COMMUNISTS.  PP.  533-537. 

(A)  SO LONG AS ALIENS FAIL TO OBTAIN AND MAINTAIN CITIZENSHIP BY
NATURALIZATION, THEY REMAIN SUBJECT TO THE PLENARY POWER OF CONGRESS TO
EXPEL THEM UNDER THE SOVEREIGN RIGHT TO DETERMINE WHAT NONCITIZENS
SHALL BE PERMITTED TO REMAIN WITHIN OUT BORDERS.  P. 534. 

(B)  THE DOCTRINES AND PRACTICES OF COMMUNISM TEACH THE USE OF FORCE
TO ACHIEVE POLITICAL CONTROL CLEARLY ENOUGH TO GIVE CONSTITUTIONAL
BASIS, ACCORDING TO ANY THEORY OF REASONABLENESS OR ARBITRARINESS, FOR
CONGRESS TO EXPEL KNOWN ALIEN COMMUNISTS.  PP. 534-536. 

3.  UNDER ORDERS FROM THE ACTING COMMISSIONER OF IMMIGRATION, CERTAIN
ALIENS WERE ARRESTED UNDER WARRANTS ISSUED AFTER ENACTMENT OF THE
INTERNAL SECURITY ACT, CHARGING THEM WITH BEING MEMBERS OF THE
COMMUNIST PARTY AND DIRECTING THAT THEY BE HELD IN CUSTODY PENDING
DETERMINATION OF DEPORTABILITY.  THEY PETITIONED FOR HABEAS CORPUS. 
RESPONDENT FILED RETURNS ALLEGING THAT THERE WAS REASONABLE CAUSE TO
BELIEVE THAT THEIR RELEASE WOULD ENDANGER THE WELFARE AND SAFETY OF THE
UNITED STATES.  LATER HE FILED AFFIDAVITS THAT THE SERVICE HAD EVIDENCE
INDICATING THAT EACH PETITIONER WAS AT THE TIME OF ARREST A MEMBER OF
THE COMMUNIST PARTY AND HAD SINCE 1930 PARTICIPATED, OR WAS THEN
ACTIVELY PARTICIPATING, IN THE PARTY'S INDOCTRINATION OF OTHERS TO THE
PREJUDICE OF THE PUBLIC INTEREST.  HELD: 

(A)  THE REFUSAL OF BAIL IN THESE CASES WAS NOT ARBITRARY OR
CAPRICIOUS OR AN ABUSE OF POWER AND DID NOT VIOLATE THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT.  P. 537-542. 

(1) THE DISCRETION AS TO BAIL VESTED IN THE ATTORNEY GENERAL BY THE
INTERNAL SECURITY ACT WAS BROAD ENOUGH TO JUSTIFY PETITIONERS'
DETENTION WITHOUT BAIL AS A MENACE TO THE PUBLIC INTEREST.  PP. 537
541. 

(2)  THERE IS NO DENIAL OF DUE PROCESS UNDER THE FIFTH AMENDMENT IN
THE DETENTION OF ALIEN COMMUNISTS WITHOUT BAIL, PENDING DETERMINATION
OF DEPORTABILITY, WHERE THERE IS REASONABLE CAUSE TO BELIEVE THAT THEIR
RELEASE ON BAIL WOULD ENDANGER THE SAFETY AND WELFARE OF THE UNITED
STATES.  PP. 541-542. 

(B)  THE DELEGATION TO THE ATTORNEY GENERAL OF DISCRETIONARY
AUTHORITY TO DETAIN SUCH ALIENS WITHOUT BAIL PENDING DEPORTATION
HEARINGS DOES NOT CONSTITUTE AN UNLAWFUL DELEGATION OF LEGISLATIVE
POWER OR VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, BECAUSE
THE STATUTE CONTAINS DEFINITE LEGISLATIVE STANDARDS FOR DEPORTATION AND
SUCH AUTHORITY IS TO BE EXERCISED WITHIN THE FRAMEWORK OF THE
SUBVERSIVE ACTIVITIES CONTROL ACT TO GUARD AGAINST COMMUNIST ACTIVITIES
PENDING DEPORTATION HEARINGS.  PP. 542-544. 

(C)  THE EIGHTH AMENDMENT DOES NOT REQUIRE THAT BAIL BE ALLOWED IN
THE CIRCUMSTANCES OF THESE CASES.  PP. 544-546. 

4.  PRIOR TO ENACTMENT OF THE INTERNAL SECURITY ACT, AN ALIEN
COMMUNIST WAS ARRESTED UNDER A WARRANT CHARGING THAT HE WAS SUBJECT TO
DEPORTATION AS AN ALIEN MEMBER OF AN ORGANIZATION ADVOCATING THE
VIOLENT OVERTHROW OF THE GOVERNMENT; BUT HE WAS RELEASED ON BAIL. 
AFTER THE EFFECTIVE DATE OF THE ACT, HE WAS AGAIN TAKEN INTO CUSTODY
UNDER THE SAME WARRANT AND HELD WITHOUT BAIL UNDER AN ORDER FROM THE
ACTING COMMISSIONER OF IMMIGRATION, BASED ON SECS. 22 AND 23 OF THE
INTERNAL SECURITY ACT.  HELD:  HE MUST BE RELEASED UNLESS, WITHIN A
REASONABLE TIME IN THE DISCRETION OF THE COURT, HE IS REARRESTED UNDER
A NEW WARRANT.  PP. 531, 546-547. 

CARLSON ET AL. V. LANDON, DISTRICT DIRECTOR OF IMMIGRATION AND
NATURALIZATION SERVICE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT.* 

*TOGETHER WITH NO. 136, BUTTERFIELD, DIRECTOR OF IMMIGRATION AND
NATURALIZATION SERVICE, V. ZYDOK, ON CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

NO. 35.  IN HABEAS CORPUS PROCEEDINGS, A DISTRICT COURT HELD THAT
RESPONDENT HAD NOT ABUSED HIS DISCRETION IN ORDERING PETITIONERS HELD
WITHOUT BAIL PENDING DEPORTATION HEARINGS.  94 F. SUPP. 18.  THE COURT
OF APPEALS REVERSED.  186 F.2D 183.  ON REHEARING AND AFTER
INTRODUCTION OF CERTAIN EVIDENCE, THE DISTRICT COURT AGAIN SUSTAINED
PETITIONERS' DETENTION WITHOUT BAIL.  THE COURT OF APPEALS AFFIRMED. 
187 F.2D 991.  THIS COURT GRANTED CERTIORARI.  342 U.S. 807.  AFFIRMED,
P. 547. 

NO. 136.  IN A HABEAS CORPUS PROCEEDING, THE DISTRICT COURT SUSTAINED
DETENTION OF RESPONDENT WITHOUT BAIL PENDING DETERMINATION OF
DEPORTABILITY.  THE COURT OF APPEALS REVERSED.  187 F.2D 802.  THIS
COURT GRANTED CERTIORARI.  342 U.S. 810.  JUDGMENT VACATED AND CAUSE
REMENDED, P. 547. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT A NARROW QUESTION WITH SEVERAL RELATED ISSUES. 
MAY THE ATTORNEY GENERAL, AS THE EXECUTIVE HEAD OF THE IMMIGRATION AND
NATURALIZATION SERVICE, (FN1) AFTER TAKING INTO CUSTODY ACTIVE ALIEN
COMMUNISTS ON WARRANTS, (FN2) CHARGING EITHER MEMBERSHIP IN A GROUP
THAT ADVOCATES THE OVERTHROW BY FORCE OF THIS GOVERNMENT (FN3) OR
INCLUSION IN ANY PROHIBITED CLASSES OF ALIENS, (FN4) CONTINUE THEM IN
CUSTODY WITHOUT BAIL, AT HIS DISCRETION PENDING DETERMINATION AS TO
THEIR DEPORTABILITY, UNDER SEC. 23 OF THE INTERNAL SECURITY ACT?  (FN5)
DIFFERING VIEWS OF THE COURTS OF APPEALS LED US TO GRANT CERTIORARI. 
342 U.S. 807, 810. 

I. FACTS.  - THE FOUR PETITIONERS IN CASE NO. 35 WERE ARRESTED UNDER
WARRANTS, ISSUED AFTER THE ENACTMENT OF THE INTERNAL SECURITY ACT OF
1950, CHARGING EACH WITH BEING AN ALIEN WHO WAS A MEMBER OF THE
COMMUNIST PARTY OF THE UNITED STATES.  (FN6)  THE WARRANTS DIRECTED
THAT THEY BE HELD IN CUSTODY, (FN7) PENDING DETERMINATION OF
DEPORTABILITY.  (FN8)  PETITIONS FOR HABEAS CORPUS WERE PROMPTLY FILED
ALLEGING THAT THE DETENTION WITHOUT BOND WAS IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT (FN9) AND THE EIGHTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES, AND THAT SEC. 20 OF THE
IMMIGRATION ACT, AS AMENDED, WAS ALSO UNCONSTITUTIONAL.  SEE NOTE 5,
SUPRA.  THE ALLEGATION APPEARS BELOW.  (FN10) 

RESPONDENT FILED RETURNS DEFENDING HIS ORDERS OF DETENTION ON THE
GROUND THAT THERE WAS REASONABLE CAUSE TO BELIEVE THAT PETITIONERS'
RELEASE WOULD BE PREJUDICIAL TO THE PUBLIC INTEREST AND WOULD ENDANGER
THE WELFARE AND SAFETY OF THE UNITED STATES.  THESE RETURNS WERE
COUNTERED BY PETITIONERS WITH ALLEGATIONS OF THEIR MANY YEARS'
RESIDENCE SPENT IN THIS COUNTRY WITHOUT GIVING BASIS FOR FEAR OF ACTION
BY THEM INIMICAL TO THE PUBLIC WELFARE DURING THE PENDENCY OF THEIR
DEPORTATION PROCEEDINGS, THEIR INTEGRATION INTO COMMUNITY LIFE THROUGH
MARRIAGE AND FAMILY CONNECTIONS, AND THEIR METICULOUS ADHERENCE TO THE
TERMS OF PREVIOUS BAIL, ALLOWED UNDER A FORMER WARRANT CHARGING
DEPORTABILITY.  SEE NOTE 8, SUPRA.  ON CONSIDERATION OF THESE UNDENIED
ALLEGATIONS, THE TRIAL COURT DETERMINED THAT THE DIRECTOR HAD NOT BEEN
SHOWN TO HAVE ABUSED HIS DISCRETION.  (FN11)  THIS ORDER WAS REVERSED
ON THE GROUND THAT THE DIRECTOR "MUST STATE SOME FACT UPON WHICH A
REASONABLE PERSON COULD LOGICALLY CONCLUDE THAT THE DENIAL OF BAIL IS
REQUIRED TO PROTECT THE COUNTRY OR TO SECURE THE ALLEGED ALIEN'S
PRESENCE FOR DEPORTATION SHOULD AN ORDER TO THAT EFFECT BE THE RESULT
OF THE HEARING."  (FN12) 

ON REHEARING, THE DIRECTOR MADE ALLEGATION, SUPPORTED BY AFFIDAVITS,
THAT THE SERVICE'S DOSSIER OF EACH PETITIONER CONTAINED EVIDENCE
INDICATING TO HIM THAT EACH WAS AT THE TIME OF ARREST A MEMBER OF THE
COMMUNIST PARTY OF THE UNITED STATES AND HAD SINCE 1930 PARTICIPATED OR
WAS THEN ACTIVELY PARTICIPATING IN THE PARTY'S INDOCTRINATION OF OTHERS
TO THE PREJUDICE OF THE PUBLIC INTEREST.  THERE WAS NO DENIAL OF THESE
ALLEGATIONS BY ANY OF THE PETITIONERS, EXCEPT HYUN, OR ANY ASSERTION
THAT ANY OF THEM HAD COMPLETELY SEVERED ALL COMMUNIST AFFILIATIONS OR
CONNECTIONS.  (FN13)  AS TO HYUN THE DENIAL WAS FORMAL AND DID NOT
INCLUDE ANY AFFIDAVIT DENYING THE FACTS STATED IN THE DIRECTOR'S
AFFIDAVIT.  AS THE ALLEGATIONS ARE SET OUT BY THE COURT OF APPEALS IN
THE CAREFULLY DETAILED OPINION OF CIRCUIT JUDGE STEPHENS, WE REFRAIN
FROM ANY FURTHER RESTATEMENT HERE.  (FN14) THE COURT OF APPEALS
AFFIRMED THE DISTRICT COURT'S DETERMINATION THAT THERE WAS SUBSTANTIAL
EVIDENCE TO SUPPORT THE DISCRETION EXERCISED IN DENYING BAIL. 

RESPONDENT ZYDOK, IN CASE NO. 136, WAS ARRESTED IN AUGUST 1949 UNDER
A RECENT WARRANT CHARGING THAT HE WAS SUBJECT TO DEPORTATION AS AN
ALIEN WITH MEMBERSHIP IN AN ORGANIZATION ADVOCATING THE VIOLENT
OVERTHROW OF THE GOVERNMENT.  ACT OF OCTOBER 16, 1918, AS AMENDED, 8
U.S.C. (1946 ED.)  SEC.  137.  AT THAT TIME HE WAS RELEASED ON $2,000
BAIL.  LATER A DEPORTATION HEARING WAS HELD BY THE IMMIGRATION AND
NATURALIZATION SERVICE BUT THIS COURT'S DECISION IN WONG YANG SUNG V.
MCGRATH, 339 U.S. 33, NECESSITATED A SECOND DEPORTATION HEARING. 

AFTER THE EFFECTIVE DATE, SEPTEMBER 23, 1950, OF THE INTERNAL
SECURITY ACT OF 1950, RESPONDENT WAS AGAIN TAKEN INTO CUSTODY BY
PETITIONER ON THE 1949 WARRANT, PURSUANT TO RADIOGRAM DIRECTION FROM
THE ACTING COMMISSIONER OF IMMIGRATION AND NATURALIZATION REFERRING TO
SEC. 20 OF THE IMMIGRATION ACT OF 1917, AS AMENDED BY SEC. 23 OF THE
INTERNAL SECURITY ACT.  THE RESPONDENT WAS HELD WITHOUT BAIL BY
PETITIONER UNDER AN ORDER FROM THE ACTING COMMISSIONER OF IMMIGRATION. 
THE REARREST WAS BASED ON SEC. 22 OF THE INTERNAL SECURITY ACT OF 1950
WHICH PROVIDES FOR THE DEPORTATION OF ALIENS WHO ARE MEMBERS OF OR
AFFILIATED WITH THE COMMUNIST PARTY.  8 U.S.C. (SUPP. IV) SEC. 137. 

THEREUPON RESPONDENT FILED A PETITION FOR WRIT OF HABEAS CORPUS IN
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN,
CHALLENGING THE VALIDITY OF HIS DETENTION WITHOUT BAIL.  THE DISTRICT
COURT FOUND THAT PETITIONER WAS AN ALIEN AND HAD BEEN AND WAS ON ARREST
A MEMBER OF THE COMMUNIST PARTY.  THE COURT DETERMINED THAT THERE HAD
BEEN NO ABUSE OF ADMINISTRATIVE DISCRETION IN REFUSING BAIL AND DENIED
THE PETITION FOR HABEAS CORPUS.  (FN15) 

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED THE DISTRICT
COURT, HOLDING THAT IN DETERMINING DENIAL OF BAIL THE ATTORNEY GENERAL
COULD NOT REST ON MEMBERSHIP ALONE IN THE COMMUNIST PARTY BUT WAS UNDER
THE DUTY TO CONSIDER ALSO THE LIKELIHOOD THAT THE ALIEN WOULD APPEAR
WHEN ORDERED TO DO SO UNDER THE CIRCUMSTANCES AS DEVELOPED IN THE
HABEAS CORPUS HEARING.  THE COURT THOUGHT THE FAILURE OF THE ATTORNEY
GENERAL TO ALLOW BAIL WAS AN ABUSE OF DISCRETION. 

THAT COURT AGREED THAT THE DISTRICT COURT WAS CORRECT IN FINDING THAT
ZYDOK WAS A MEMBER OF THE COMMUNIST PARTY AND HAD BEEN IN 1949 THE
FINANCIAL SECRETARY OF ITS HAMTRAMCK DIVISION.  THE RESPONDENT'S
TESTIMONY JUSTIFIES THE DISTRICT COURT'S FINDING SET OUT IN THE
MARGIN.  (FN16)  THE RECORD SHOWS OTHER INFORMATION IN THE FILES OF THE
ATTORNEY GENERAL, SUCH AS ATTENDANCE AT CLOSED MEETINGS OF THE PARTY
AND THE MICHIGAN STATE CONVENTION.  THE OPINION SUCCINCTLY SETS OUT THE
FACTS CONCERNING RESPONDENT'S INTEGRATION INTO AMERICAN LIFE.  WE ADOPT
THAT STATEMENT.  (FN17)  IT WAS SAID: 

"DISCRETION DOES NOT MEAN DECISION UPON ONE PARTICULAR FACT OR SET OF
FACTS.  IT MEANS RATHER A JUST AND PROPER DECISION IN VIEW OF ALL THE
ATTENDING CIRCUMSTANCES.  THE STYRIA V. MORGAN, 186 U.S. 1, 9, 22 S.
CT. 731, 46 L. ED. 1027.  THERE ARE MANY CIRCUMSTANCES WHICH INVOLVE
DECISION."  187 F.2D 802, 803. 

THE COURT OF APPEALS CONCLUDED: 

"WE THINK THAT A FAIR CONSIDERATION OF THE FACTORS ABOVE SET OUT IN
THEIR AGGREGATE REQUIRE THAT APPELLANT SHOULD HAVE BEEN GRANTED BAIL IN
SOME REASONABLE AMOUNT.  THIS VIEW IS MORE NEARLY IN ACCORDANCE WITH
THE SPIRIT OF OUR INSTITUTIONS AS IT RELATES EVEN TO THOSE WHO SEEK
PROTECTION FROM THE LAWS WHICH THEY INCONGRUOUSLY SEEK TO DESTROY.  SEE
CARLSON V. LANDON, DIST. DIRECTOR, 9 CIR., 186 F.2D 183; UNITED STATES
EX REL. POTASH V. DIST. DIRECTOR, 2 CIR., 169 F.2D 747, 752."  ID., AT
804. 

II.  THE ISSUES.  - PETITIONERS IN NO. 35, THE CARLSON CASE, AND
RESPONDENT IN NO. 136, THE ZYDOK CASE, SEEK RESPECTIVELY REVERSAL OR
AFFIRMANCE PRINCIPALLY ON THE SAME GROUNDS.  IT IS URGED THAT THE
DENIAL OF BAIL TO EACH WAS ARBITRARY AND CAPRICIOUS, A VIOLATION OF THE
FIFTH AMENDMENT; THAT WHERE THERE IS NO EVIDENCE TO JUSTIFY A FEAR OF
UNAVAILABILITY FOR THE HEARINGS OR FOR THE CARRYING OUT OF A POSSIBLE
JUDGMENT OF DEPORTATION, DENIAL OF BAIL UNDER THE CIRCUMSTANCES OF
THESE CASES IS AN ABUSE OF DISCRETION AND VIOLATES A CLAIMED RIGHT TO
REASONABLE BAIL SECURED BY THE EIGHTH AMENDMENT TO THE CONSTITUTION. 
ZYDOK URGES, ALSO, THAT THERE WAS AN ABUSE OF DISCRETION IN REARRESTING
HIM, WHEN THERE WAS NO CHANGE OF CIRCUMSTANCES, AFTER HIS PREVIOUS
RELEASE UNDER BOND ON THE SAME WARRANT.  THERE ARE OTHER MINOR
CONTENTIONS AS TO IRREGULARITIES IN THE PROCEEDINGS THAT APPEAR TO US
IMMATERIAL TO OUR CONSIDERATION OF THESE CASES. 

THE BASIS FOR THE DEPORTATION OF PRESENTLY UNDESIRABLE ALIENS
RESIDENT IN THE UNITED STATES IS NOT QUESTIONED AND REQUIRES NO
REEXAMINATION.  WHEN LEGALLY ADMITTED, THEY HAVE COME AT THE NATION'S
INVITATION, AS VISITORS OR PERMANENT RESIDENTS, TO SHARE WITH US THE
OPPORTUNITIES AND SATISFACTIONS OF OUR LAND.  AS SUCH VISITORS AND
FOREIGN NATIONALS THEY ARE ENTITLED IN THEIR PERSONS AND EFFECTS TO THE
PROTECTION OF OUR LAWS.  SO LONG, HOWEVER, AS ALIENS FAIL TO OBTAIN AND
MAINTAIN CITIZENSHIP BY NATURALIZATION, THEY REMAIN SUBJECT TO THE
PLENARY POWER OF CONGRESS TO EXPEL THEM UNDER THE SOVEREIGN RIGHT TO
DETERMINE WHAT NONCITIZENS SHALL BE PERMITTED TO REMAIN WITHIN OUR
BORDERS.  (FN18) 

CHANGES IN WORLD POLITICS AND IN OUR INTERNAL ECONOMY BRING
LEGISLATIVE ADJUSTMENTS AFFECTING THE RIGHTS OF VARIOUS CLASSES OF
ALIENS TO ADMISSION AND DEPORTATION.  (FN19)  THE PASSAGE OF THE
INTERNAL SECURITY ACT OF 1950 MARKED SUCH A CHANGE OF ATTITUDE TOWARD
ALIEN MEMBERS OF THE COMMUNIST PARTY OF THE UNITED STATES.  THERETOFORE
THERE WAS A PROVISION FOR THE DEPORTATION OF ALIEN ANARCHISTS AND OTHER
ALIENS, WHO ARE OR WERE MEMBERS OF ORGANIZATIONS DEVOTED TO THE
OVERTHROW BY FORCE AND VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES,
BUT THE INTERNAL SECURITY ACT MADE COMMUNIST MEMBERSHIP ALONE OF ALIENS
A SUFFICIENT GROUND FOR DEPORTATION.  (FN20)  THE REASONS FOR THE
EXERCISE OF POWER ARE SUMMARIZED IN TITLE I OF THE INTERNAL SECURITY
ACT.  IT IS SUFFICIENT HERE TO PRINT SEC. 2(15).  (FN21)  WE HAVE NO
DOUBT THAT THE DOCTRINES AND PRACTICES OF COMMUNISM CLEARLY ENOUGH
TEACH THE USE OF FORCE TO ACHIEVE POLITICAL CONTROL TO GIVE
CONSTITUTIONAL BASIS, ACCORDING TO ANY THEORY OF REASONABLENESS OR
ARBITRARINESS, FOR CONGRESS TO EXPEL KNOWN ALIEN COMMUNISTS UNDER ITS
POWER TO REGULATE THE EXCLUSION, ADMISSION AND EXPULSION OF ALIENS. 
(FN22)  CONGRESS HAD BEFORE IT EVIDENCE OF RESIDENT ALIENS' LEADERSHIP
IN COMMUNIST DOMESTIC ACTIVITIES SUFFICIENT TO FURNISH REASONABLE
GROUND FOR ACTION AGAINST ALIEN RESIDENT COMMUNISTS.  THE BAR AGAINST
THE ADMISSION OF COMMUNISTS CANNOT BE DIFFERENTIATED AS A MATTER OF
POWER FROM THAT AGAINST ANARCHISTS UPHELD UNANIMOUSLY HALF A CENTURY
AGO IN THE EXCLUSION OF TURNER.  (FN23)  SINCE "IT IS THOROUGHLY
ESTABLISHED THAT CONGRESS HAS POWER TO ORDER THE DEPORTATION OF ALIENS
WHOSE PRESENCE IN THE COUNTRY IS DEEMS HURTFUL," (FN24) THE FACT THAT
PETITIONERS, AND RESPONDENT ZYDOK, WERE MADE DEPORTABLE AFTER ENTRY IS
IMMATERIAL.  THEY ARE DEPORTED FOR WHAT THEY ARE NOW, NOT FOR WHAT THEY
WERE.  (FN25)  OTHERWISE, WHEN AN ALIEN ONCE LEGALLY BECAME A DENIZEN
OF THIS COUNTRY HE COULD NOT BE DEPORTED FOR ANY REASON OF WHICH HE HAD
NOT BEEN FOREWARNED AT THE TIME OF ENTRY.  MANKIND IS NOT VOUCHSAFED
SUFFICIENT FORESIGHT TO JUSTIFY REQUIRING A COUNTRY TO PERMIT ITS
CONTINUOUS OCCUPATION IN PEACE OR WAR BY LEGALLY ADMITTED ALIENS, EVEN
THOUGH THEY NEVER VIOLATE THE LAWS IN EFFECT AT THEIR ENTRY.  THE
PROTECTION OF CITIZENSHIP IS OPEN TO THOSE WHO QUALIFY FOR ITS
PRIVILEGES.  THE LACK OF A CLAUSE IN THE CONSTITUTION SPECIFICALLY
EMPOWERING SUCH ACTION HAS NEVER BEEN HELD TO RENDER CONGRESS IMPOTENT
TO DEAL AS A SOVEREIGN WITH RESIDENT ALIENS.  (FN26) 

III.  CONSTITUTIONALITY.  - A. ARBITRARY, CAPRICIOUS, ABUSE OF
DISCRETION.  - THE POWER TO EXPEL ALIENS, BEING ESSENTIALLY A POWER OF
THE POLITICAL BRANCHES OF GOVERNMENT, THE LEGISLATIVE AND EXECUTIVE,
MAY BE EXERCISED ENTIRELY THROUGH EXECUTIVE OFFICERS, "WITH SUCH
OPPORTUNITY FOR JUDICIAL REVIEW OF THEIR ACTION AS CONGRESS MAY SEE FIT
TO AUTHORIZE OR PERMIT."  THIS POWER IS, OF COURSE, SUBJECT TO JUDICIAL
INTERVENTION UNDER THE "PARAMOUNT LAW OF THE CONSTITUTION."  (FN27) 

DEPORTATION IS NOT A CRIMINAL PROCEEDING AND HAS NEVER BEEN HELD TO
BE PUNISHMENT. NO JURY SITS.  NO JUDICIAL REVIEW IS GUARANTEED BY THE
CONSTITUTION.  (FN28)  SINCE DEPORTATION IS A PARTICULARLY DRASTIC
REMEDY WHERE ALIENS HAVE BECOME ABSORBED INTO OUR COMMUNITY LIFE,
(FN29) CONGRESS HAS BEEN CAREFUL TO PROVIDE FOR FULL HEARING BY THE
IMMIGRATION AND NATURALIZATION SERVICE BEFORE DEPORTATION.  SUCH
LEGISLATIVE PROVISION REQUIRES THAT THOSE CHARGED WITH THAT
RESPONSIBILITY EXERCISE IT IN A MANNER CONSISTENT WITH DUE PROCESS. 
(FN30)  DETENTION IS NECESSARILY A PART OF THIS DEPORTATION PROCEDURE. 
OTHERWISE ALIENS ARRESTED FOR DEPORTATION WOULD HAVE OPPORTUNITIES TO
HURT THE UNITED STATES DURING THE PENDENCY OF DEPORTATION PROCEEDINGS. 
OF COURSE PURPOSE TO INJURE COULD NOT BE IMPUTED GENERALLY TO ALL
ALIENS SUBJECT TO DEPORTATION, SO DISCRETION WAS PLACED BY THE 1950 ACT
IN THE ATTORNEY GENERAL TO DETAIN ALIENS WITHOUT BAIL, AS SET OUT IN
NOTE 5, SUPRA.  (FN31)

THE CHANGE IN LANGUAGE SEEMS TO HAVE ORIGINATED IN H.R. 10, 81ST
CONG., 1ST SESS., INTRODUCED BY REPRESENTATIVE SAM HOBBS OF ALABAMA ON
JANUARY 3, 1949.  IT WAS INTENDED TO CLAIRFY THE PROCEDURE IN DEALING
WITH DEPORTEES AND TO "EXPRESSLY AUTHORIZE THE ATTORNEY GENERAL, IN HIS
DISCRETION, TO HOLD ARRESTED ALIENS IN CUSTODY."  (FN32)  THE NEED FOR
CLARIFICATION AROSE FROM VARYING INTERPRETATIONS OF THE AUTHORITY TO
GRANT BAIL UNDER THE FORMER BAIL PROVISION.  NOTE 31, SUPRA.  IN
PRENTIS V. MANOOGIAN, 16 F.2D 422, 424, THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT HAD HELD THAT BY THE EARLIER PROVISION "CONGRESS INTENDED
TO GRANT TO THE ALIEN A RIGHT, AND THAT ITS FAILURE TO FOLLOW WITH SOME
SUCH PHRASE AS 'AT THE DISCRETION OF THE COMMISSIONER' VESTS THE
DISCRETION TO AVAIL HIMSELF OF THE OPPORTUNITY AFFORDED IN THE ALIEN,
AND NOT THE DISCRETION TO ALLOW BAIL IN THE COMMISSIONER OR DIRECTOR." 
ON THE OTHER HAND IN UNITED STATES EX REL.  ZAPP V. DISTRICT DIRECTOR,
120 F.2D 762, THE COURT OF APPEALS FOR THE SECOND CIRCUIT CONSTRUED THE
PROVISION TO THE CONTRARY.  IT SAID: 

"THE NATURAL INTERPRETATION OF THE LANGUAGE USED, THAT THE ALIEN 'MAY
BE RELEASED UNDER A BOND,' WOULD INDICATE THAT THE RELEASE IS
DISCRETIONARY WITH THE ATTORNEY GENERAL; AND THAT APPEARS TO BE BORNE
OUT BY OTHER PROVISIONS OF THIS SECTION, AS WELL AS OTHER SECTIONS OF
THE IMMIGRATION LAWS, WHERE THE CHOICE OF WORDS APPEARS TO HAVE
SIGNIFICANCE."  P. 765. 

IN THE LATER CASE OF UNITED STATES EX REL. POTASH V. DISTRICT
DIRECTOR, 169 F.2D 747, THE SAME COURT APPLIED ITS ZAPP OPINION TO
EXPLAIN THAT THE SERVICE'S DISCRETION AS TO BAIL WAS NOT UNTRAMMELED
BUT SUBJECT TO JUDICIAL REVIEW.  (FN33)  IT WAS IN THE LIGHT OF THESE
CASES THAT CONGRESS INSERTED IN THE BAIL PROVISIONS THE PHRASE "IN THE
DISCRETION OF THE ATTORNEY GENERAL," THE LACK OF WHICH VERY PHRASE THE
MANOOGIAN CASE HELD MADE BAIL A RIGHT OF THE DETAINED ALIEN.  THE
PRESENT STATUTE DOES NOT GRANT BAIL AS A MATTER OF RIGHT. 

THE GOVERNMENT DOES NOT URGE THAT THE ATTORNEY GENERAL'S DISCRETION
IS NOT SUBJECT TO ANY JUDICIAL REVIEW, BUT MERELY THAT HIS DISCRETION
CAN BE OVERTURNED ONLY ON A SHOWING OF CLEAR ABUSE.  (FN34) WE PROCEED
ON THE BASIS SUGGESTED BY THE GOVERNMENT.  IT IS FIRST TO BE OBSERVED
THAT THE LANGUAGE OF THE REPORTS IS EMPHATIC IN EXPLAINING CONGRESS'
INTENTION TO MAKE THE ATTORNEY GENERAL'S EXERCISE OF DISCRETION
PRESUMPTIVELY CORRECT AND UNASSAILABLE EXCEPT FOR ABUSE.  WE THINK THE
DISCRETION REPOSED IN THE ATTORNEY GENERAL IS AT LEAST AS GREAT AS THAT
FOUND BY THE SECOND CIRCUIT IN THE POTASH CASE, SUPRA, TO BE IN HIM
UNDER THE FORMER BAIL PROVISION.  IT CAN ONLY BE OVERRIDDEN WHERE IT IS
CLEARLY SHOWN THAT IT "WAS WITHOUT A REASONABLE FOUNDATION." 

THE FOUR PETITIONERS IN THE CARLSON CASE WERE ACTIVE IN COMMUNIST
WORK.  IN THE ZYDOK CASE THE ONLY EVIDENCE IS MEMBERSHIP IN THE PARTY,
ATTENDANCE AT CLOSED SESSIONS AND THE HOLDING OF THE OFFICE OF
FINANCIAL SECRETARY OF ITS HAMTRAMCK DIVISION.  THIS EVIDENCE GOES
BEYOND UNEXPLAINED MEMBERSHIP AND SHOWS A DEGREE, MINOR PERHAPS IN
ZYDOK'S CASE, OF PARTICIPATION IN COMMUNIST ACTIVITIES.  AS THE PURPOSE
OF THE INTERNAL SECURITY ACT TO DEPORT ALL ALIEN COMMUNISTS AS A MENACE
TO THE SECURITY OF THE UNITED STATES IS ESTABLISHED BY THE INTERNAL
SECURITY ACT ITSELF, TITLE I, SEC. 2, WE CONCLUDE THAT THE DISCRETION
AS TO BAIL IN THE ATTORNEY GENERAL WAS CERTAINLY BROAD ENOUGH TO
JUSTIFY HIS DETENTION OF ALL THESE PARTIES WITHOUT BAIL AS A MENACE TO
THE PUBLIC INTEREST.  AS ALL ALIEN COMMUNISTS ARE DEPORTABLE, LIKE
ANARCHISTS, BECAUSE OF CONGRESS' UNDERSTANDING OF THEIR ATTITUDE TOWARD
THE USE OF FORCE AND VIOLENCE IN SUCH A CONSTITUTIONAL DEMOCRACY AS
OURS TO ACCOMPLISH THEIR POLITICAL AIMS, EVIDENCE OF MEMBERSHIP PLUS
PERSONAL ACTIVITY IN SUPPORTING AND EXTENDING THE PARTY'S PHILOSOPHY
CONCERNING VIOLENCE GIVES ADEQUATE GROUND FOR DETENTION.  IT CANNOT BE
EXPECTED THAT THE GOVERNMENT SHOULD BE REQUIRED IN ADDITION TO SHOW
SPECIFIC ACTS OF SABOTAGE OR INCITEMENT TO SUBVERSIVE ACTION.  SUCH AN
EXERCISE OF DISCRETION IS WELL WITHIN THAT HERETOFORE APPROVED IN
KNAUFF V. SHAUGHNESSY, 338 U.S. 537, 541.  (FN35)  THERE IS NO EVIDENCE
OR CONTENTION THAT ALL PERSONS ARRESTED AS DEPORTABLE UNDER SEC. 22 OF
THE INTERNAL SECURITY ACT, NOTE 4, SUPRA, FOR COMMUNIST MEMBERSHIP ARE
DENIED BAIL.  IN FACT, A REPORT FILED WITH THIS COURT BY THE DEPARTMENT
OF JUSTICE IN THIS CASE AT OUR REQUEST SHOWS ALLOWANCE OF BAIL IN THE
LARGE MAJORITY OF CASES.  THE REFUSAL OF BAIL IN THESE CASES IS NOT
ARBITRARY OR CAPRICIOUS OR AN ABUSE OF POWER.  THERE IS NO DENIAL OF
THE DUE PROCESS OF THE FIFTH AMENDMENT UNDER CIRCUMSTANCES WHERE THERE
IS REASONABLE APPREHENSION OF HURT FROM ALIENS CHARGED WITH A
PHILOSOPHY OF VIOLENCE AGAINST THIS GOVERNMENT. 

B. DELEGATION OF LEGISLATIVE POWER.  - THIS LEAVES FOR CONSIDERATION
THE CONSTITUTIONALITY OF THIS DELEGATION OF AUTHORITY.  WE CONSIDER
FIRST THE OBJECTION TO THE ALLEGED UNBRIDLED DELEGATION OF LEGISLATIVE
POWER IN THAT THE ATTORNEY GENERAL IS LEFT WITHOUT STANDARDS TO
DETERMINE WHEN TO ADMIT TO BAIL AND WHEN TO DETAIN.  IT IS FAMILIAR LAW
THAT IN SUCH AN EXAMINATION THE ENTIRE ACT IS TO BE LOOKED AT AND THE
MEANING OF THE WORDS DETERMINED BY THEIR SURROUNDINGS AND CONNECTIONS. 
CONGRESS CAN ONLY LEGISLATE SO FAR AS IS REASONABLE AND PRACTICABLE,
AND MUST LEAVE TO EXECUTIVE OFFICERS THE AUTHORITY TO ACCOMPLISH ITS
PURPOSE.  (FN36)  CONGRESS NEED NOT MAKE SPECIFIC STANDARDS FOR EACH
SUBSIDIARY EXECUTIVE ACTION IN CARRYING OUT A POLICY.  (FN37)  THE BAIL
PROVISION APPLIES TO MANY CLASSES OF DEPORTABLE ALIENS OTHER THAN THOSE
NAMED IN THE CLASSES LISTED IN SEC. 22 OF THE INTERNAL SECURITY ACT. 
SEE NOTE 4, SUPRA.  (FN38)  A WIDE RANGE OF DISCRETION IN THE ATTORNEY
GENERAL AS TO BAIL IS REQUIRED TO MEET THE VARYING SITUATIONS ARISING
FROM THE MANY ALIENS IN THIS COUNTRY.  (FN39) 

THE POLICY AND STANDARDS AS TO WHAT ALIENS ARE SUBJECT TO DEPORTATION
ARE, IN GENERAL, CLEAR AND DEFINITE.  8 U.S.C. SECS. 137 AND 155. 
SPECIFICALLY WHEN DEALING WITH ALIEN COMMUNISTS, AS IN THESE CASES, THE
LEGISLATIVE STANDARD FOR DEPORTATION IS DEFINITE.  SEE NOTES 3 AND 4,
SUPRA.  IN CARRYING OUT THAT POLICY THE ATTORNEY GENERAL IS NOT LEFT
WITH UNTRAMMELED DISCRETION AS TO BAIL.  COURTS REVIEW HIS
DETERMINATION.  HEARINGS ARE HAD, AND HE MUST JUSTIFY HIS REFUSAL OF
BAIL BY REFERENCE TO THE LEGISLATIVE SCHEME TO ERADICATE THE EVILS OF
COMMUNIST ACTIVITY.  THE LEGISLATIVE JUDGMENT OF EVILS CALLING FOR THE
1950 AMENDMENTS TO DEPORTATION LEGISLATION IS SET OUT IN THE
INTRODUCTORY SECTIONS OF THE SUBVERSIVE ACTIVITIES CONTROL ACT.  (FN40)
SO FAR AS PERTINENT TO THESE PROCEEDINGS, THE NEW LEGISLATION WAS
DESIGNED TO ELIMINATE THE SUBVERSIVE ACTIVITIES OF RESIDENT ALIENS WHO
SEEK TO INCULCATE THE DOCTRINE OF FORCE AND VIOLENCE INTO THE POLITICAL
PHILOSOPHY OF THE AMERICAN PEOPLE.  TO THIS END PROVISION WAS MADE FOR
THE DETENTION AND DEPORTATION OF CERTAIN NONCITIZENS, INCLUDING MEMBERS
OF THE COMMUNIST PARTY.  WHEN IN THE JUDGMENT OF THE ATTORNEY GENERAL
AN ALIEN COMMUNIST MAY SO CONDUCT HIMSELF PENDING DEPORTATION HEARINGS
AS TO AID IN CARRYING OUT THE OBJECTIVES OF THE WORLD COMMUNIST
MOVEMENT, THAT ALIEN MAY BE DETAINED.  COMPARE YAKUS V. UNITED STATES,
321 U.S. 414, AND BOWLES V. WILLINGHAM, 321 U.S. 503, 515.  THIS IS A
PERMISSIBLE DELEGATION OF LEGISLATIVE POWER BECAUSE THE EXECUTIVE
JUDGMENT IS LIMITED BY ADEQUATE STANDARDS.  THE AUTHORITY TO DETAIN
WITHOUT BAIL IS TO BE EXERCISED WITHIN THE FRAMEWORK OF THE SUBVERSIVE
ACTIVITIES CONTROL ACT TO GUARD AGAINST COMMUNIST ACTIVITIES PENDING
DEPORTATION HEARINGS.  CF. MAHLER V. EBY, 264 U.S. 32, 40.  WE DO NOT
SEE THAT SUCH DISCRETION VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

C. VIOLATION OF EIGHT AMENDMENT.  - THE CONTENTION IS ALSO ADVANCED
THAT THE EIGHTH AMENDMENT TO THE CONSTITUTION, NOTE 9, SUPRA, COMPELS
THE ALLOWANCE OF BAIL IN A REASONABLE AMOUNT.  WE HAVE IN THE PRECEDING
ABUSE OF POWER, ARBITRARY OR CAPRICIOUS, AND WHY THE DELEGATION OF
DISCRETION TO THE ATTORNEY GENERAL IS NOT UNCONSTITUTIONAL.  HERE WE
MEET THE ARGUMENT THAT THE CONSTITUTION REQUIRES BY THE EIGHTH
AMENDMENT, NOTE 9, SUPRA, THE SAME REASONABLE BAIL FOR ALIEN COMMUNISTS
UNDER DEPORTATION CHARGES AS IT ACCORDS CITIZENS CHARGED WITH BAILABLE
CRIMINAL OFFENSES.  OBVIOUSLY THE CASES CITED BY THE APPLICANTS FOR
HABEAS CORPUS FAIL FLATLY TO SUPPORT THIS ARGUMENT.  (FN41)  WE HAVE
FOUND NONE THAT DO. 

THE BAIL CLAUSE WAS LIFTED WITH SLIGHT CHANGES FROM THE ENGLISH BILL
OF RIGHTS ACT.  (FN42)  IN ENGLAND THAT CLAUSE HAS NEVER BEEN THOUGHT
TO ACCORD A RIGHT TO BAIL IN ALL CASES, (FN43) BUT MERELY TO PROVIDE
THAT BAIL SHALL NOT BE EXCESSIVE IN THOSE CASES WHERE IT IS PROPER TO
GRANT BAIL.  WHEN THIS CLAUSE WAS CARRIED OVER INTO OUR BILL OF RIGHTS,
NOTHING WAS SAID THAT INDICATED ANY DIFFERENT CONCEPT.  (FN44)  THE
EIGHTH AMENDMENT HAS NOT PREVENTED CONGRESS FROM DEFINING THE CLASSES
OF CASES IN WHICH BAIL SHALL BE ALLOWED IN THIS COUNTRY.  THUS IN
CRIMINAL CASES BAIL IS NOT COMPULSORY WHERE THE PUNISHMENT MAY BE
DEATH.  (FN45)  INDEED, THE VERY LANGUAGE OF THE AMENDMENT FAILS TO SAY
ALL ARRESTS MUST BE BAILABLE.  WE THINK, CLEARLY, HERE THE EIGHTH
AMENDMENT DOES NOT REQUIRE THAT BAIL BE ALLOWED UNDER THE CIRCUMSTANCES
OF THESE CASES. 

IT SHOULD BE NOTED THAT THE PROBLEM OF HABEAS CORPUS AFTER UNUSUAL
DELAY IN DEPORTATION HEARINGS IS NOT INVOLVED IN THIS CASE.  CF. UNITED
STATES EX REL. POTASH V. DISTRICT DIRECTOR, 169 F.2D 747, 751. 

IV.  REARREST.  - FINALLY, RESPONDENT ZYDOK ARGUES THAT HIS REARREST
ON THE OUTSTANDING WARRANT, AFTER HE HAD ONCE BEEN RELEASED ON BAIL,
WAS IMPROPER.  THE INQUIRY ON HABEAS CORPUS IS LIMITED TO THE PROPRIETY
OF ZYDOK'S PRESENT DETENTION.  MCNALLY V. HILL, 293 U.S. 131, 136. 
WHILE THE ATTORNEY GENERAL HAS MADE A SATISFACTORY SHOWING THAT HE HAS
GOOD CAUSE FOR DETAINING ZYDOK WITHOUT BAIL, NO ORDER BASED ON A NEW
WARRANT HAS BEEN ENTERED.  (FN46)  ZYDOK DID NOT ALLOW THE PROCEEDINGS
TO RUN ALONG BUT OBJECTED PROMPTLY BY HABEAS CORPUS TO DETENTION UNDER
THE WARRANT.  IT HAS BEEN SAID THAT THE RULE IN CRIMINAL CASES IS THAT
A WARRANT ONCE EXECUTED IS EXHAUSTED.  (FN47)  THIS GUARDS AGAINST
PRECIPITATE REARREST.  WHERE, HOWEVER, THE REARREST COMES AFTER THE
DISCOVERY OF ERROR IN RELEASE, A NEW WARRANT IS NOT NECESSARILY
REQUIRED.  (FN48)  STATE CASES HAVE HELD THAT AN ESCAPED PERSON OR ONE
WHO SECURED HIS RELEASE BY TRICK MAY BE REARRESTED WITHOUT A NEW
WARRANT.  (FN49) ALTHOUGH A WARRANT FOR REARREST IS REQUIRED BY
STATUTE, WHEN A CONVICTED PERSON IS PAROLED HIS STATUS ON VIOLATION OF
THE PAROLE IS THE SAME AS THAT OF AN ESCAPED PRISONER.  (FN50)  WHEN A
PRISONER IS OUT ON BOND HE IS STILL UNDER COURT CONTROL, THOUGH THE
BOUNDS OF HIS CONFINEMENT ARE ENLARGED.  HIS BONDSMEN ARE HIS JAILERS. 
(FN51)  WHILE THE BAILSMEN MAY ARREST WITHOUT WARRANT, THE COURT
PROCEEDS UNDER BENCH WARRANT TO RETAKE A PRISONER.  CF. 18 U.S.C. SEC.
3143. 

ALTHOUGH IN A CIVIL PROCEEDING FOR DEPORTATION THE SAME BRANCH OF
GOVERNMENT ISSUES AND EXECUTES THE WARRANT, WE THINK THE BETTER
PRACTICE IS TO REQUIRE IN THOSE CASES ALSO A NEW WARRANT. 

THE JUDGMENT OF THE COURT OF APPEALS IN THE ZYDOK CASE WILL BE
VACATED AND THE CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN ACCORDANCE WITH THIS OPINION, WITH DIRECTIONS TO ORDER
THE RELEASE OF THE RESPONDENT ZYDOK UNLESS WITHIN A REASONABLE TIME IN
THE DISCRETION OF THE COURT HE IS REARRESTED UNDER A NEW WARRANT. 
(FN52)  NO. 35 IS AFFIRMED; NO. 136 IS VACATED. 

FN1  REORGANIZATION PLAN NO. V, 54 STAT. 1238. 

FN2  SEC. 19 OF AN ACT TO REGULATE THE IMMIGRATION OF ALIENS TO, AND
THE RESIDENCE OF ALIENS IN, THE UNITED STATES, 39 STAT. 889, FEBRUARY
5, 1917, AS AMENDED 8 U.S.C. SEC. 155: 

"  ... ANY ALIEN WHO SHALL HAVE ENTERED OR WHO SHALL BE FOUND IN THE
UNITED STATES IN VIOLATION OF THIS CHAPTER, OR IN VIOLATION OF ANY
OTHER LAW OF THE UNITED STATES; ...  SHALL, UPON THE WARRANT OF THE
ATTORNEY GENERAL, BE TAKEN INTO CUSTODY AND DEPORTED  ...  ." 

FN3  ACT OF OCTOBER 16, 1918, 40 STAT. 1012, AS AMENDED, 8 U.S.C.
(1946 ED.)  SEC.  137, SEE NOTE 15, INFRA: 

"(C)  ALIENS WHO BELIEVE IN, ADVISE, ADVOCATE, OR TEACH, OR WHO ARE
MEMBERS OF OR AFFILIATED WITH ANY ORGANIZATION, ASSOCIATION, SOCIETY,
OR GROUP, THAT BELIEVES IN, ADVISES, ADVOCATES, OR TEACHES: (1) THE
OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES
OR OF ALL FORMS OF LAW  ...  ." 

FN4 INTERNAL SECURITY ACT OF 1950, SEPTEMBER 23, 1950, SEC. 22,
SUBSECTION 4(A), AMENDING THE ACT OF OCTOBER 16, 1918, SEE 8 U.S.C.
SEC. 137: 

"ANY ALIEN WHO WAS AT THE TIME OF ENTERING THE UNITED STATES, OR HAS
BEEN AT ANY TIME THEREAFTER, A MEMBER OF ANY ONE OF THE CLASSES OF
ALIENS ENUMERATED IN SECTION 1(1) OR SECTION 1(3) OF THIS ACT OR  ...
A MEMBER OF ANY ONE OF THE CLASSES OF ALIENS ENUMERATED IN SECTION 1(2)
OF THIS ACT, SHALL, UPON THE WARRANT OF THE ATTORNEY GENERAL, BE TAKEN
INTO CUSTODY AND DEPORTED IN THE MANNER PROVIDED IN THE IMMIGRATION ACT
OF FEBRUARY 5, 1917.  THE PROVISIONS OF THIS SECTION SHALL BE
APPLICABLE TO THE CLASSES OF ALIENS MENTIONED IN THIS ACT, IRRESPECTIVE
OF THE TIME OF THEIR ENTRY INTO THE UNITED STATES."    ID., SEC.22: 

"THAT ANY ALIEN WHO IS A MEMBER OF ANY ONE OF THE FOLLOWING CLASSES
SHALL BE EXCLUDED FROM ADMISSION INTO THE UNITED STATES: 

"(1)  ALIENS WHO SEEK TO ENTER THE UNITED STATES WHETHER SOLELY,
PRINCIPALLY, OR INCIDENTALLY, TO ENGAGE IN ACTIVITIES WHICH WOULD BE
PREJUDICIAL TO THE PUBLIC INTEREST, OR WOULD ENDANGER THE WELFARE OR
SAFETY OR THE UNITED STATES. 

"(2)  ALIENS WHO, AT ANY TIME, SHALL BE OR SHALL HAVE BEEN MEMBERS OF
ANY OF THE FOLLOWING CLASSES: 

"(A)  ALIENS WHO ARE ANARCHISTS. 

"(B)  ALIENS WHO ADVOCATE OR TEACH, OR WHO ARE MEMBERS OF OR
AFFILIATED WITH ANY ORGANIZATION THAT ADVOCATES OR TEACHES, OPPOSITION
TO ALL ORGANIZED GOVERNMENT. 

"(C)  ALIENS WHO ARE MEMBERS OF OR AFFILIATED WITH (I) THE COMMUNIST
PARTY OF THE UNITED STATES, (II) ANY OTHER TOTALITARIAN PARTY OF THE
UNITED STATES, (III) THE COMMUNIST POLITICAL ASSOCIATION, (IV) THE
COMMUNIST OR OTHER TOTALITARIAN PARTY OF ANY STATE OF THE UNITED
STATES, OF ANY FOREIGN STATE, OR OF ANY POLITICAL OR GEOGRAPHICAL
SUBDIVISION OF ANY FOREIGN STATE; (V) ANY SECTION, SUBSIDIARY, BRANCH,
AFFILIATE, OR SUBDIVISION OF ANY SUCH ASSOCIATION OR PARTY; OR (VI) THE
DIRECT PREDECESSORS OR SUCCESSORS OF ANY SUCH ASSOCIATION OR PARTY,
REGARDLESS OF WHAT NAME SUCH GROUP OR ORGANIZATION MAY HAVE USED, MAY
NOW BEAR, OR MAY HEREAFTER ADOPT. 

     *         *         *         *       * 

"(F)  ALIENS WHO ADVOCATE OR TEACH OR WHO ARE MEMBERS OF OR
AFFILIATED WITH ANY ORGANIZATION THAT ADVOCATES OR TEACHES (I) THE
OVERTHROW BY FORCE OR VIOLENCE OR OTHER UNCONSTITUTIONAL MEANS OF THE
GOVERNMENT OF THE UNITED STATES OR OF ALL FORMS OF LAW; ...  . 

     *         *         *         *         * 

"(3)  ALIENS WITH RESPECT TO WHOM THERE IS REASON TO BELIEVE THAT
SUCH ALIENS WOULD, AFTER ENTRY, BE LIKELY TO (A) ENGAGE IN ACTIVITIES
WHICH WOULD BE PROHIBITED BY THE LAWS OF THE UNITED STATES RELATING TO
ESPIONAGE, SABOTAGE, PUBLIC DISORDER, OR IN OTHER ACTIVITY SUBVERSIVE
TO THE NATIONAL SECURITY; (B) ENGAGE IN ANY ACTIVITY A PURPOSE OF WHICH
IS THE OPPOSITION TO, OR THE CONTROL OR OVERTHROW OF, THE GOVERNMENT OF
THE UNITED STATES BY FORCE, VIOLENCE, OR OTHER UNCONSTITUTIONAL MEANS;
OR (C) ORGANIZE, JOIN, AFFILIATE WITH, OR PARTICIPATE IN THE ACTIVITIES
OR ANY ORGANIZATION WHICH IS REGISTERED OR REQUIRED TO BE REGISTERED
UNDER SECTION 7 OF THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950." 

FN5  INTERNAL SECURITY ACT OF 1950, SEC. 23: 

"  ...  PENDING FINAL DETERMINATION OF THE DEPORTABILITY OF ANY ALIEN
TAKEN INTO CUSTODY UNDER WARRANT OF THE ATTORNEY GENERAL, SUCH ALIEN
MAY, IN THE DISCRETION OF THE ATTORNEY GENERAL (1) BE CONTINUED IN
CUSTODY; OR (2) BE RELEASED UNDER BOND IN THE AMOUNT OF NOT LESS THAN
$500, WITH SECURITY APPROVED BY THE ATTORNEY GENERAL; OR (3) BE
RELEASED ON CONDITIONAL PAROLE  ...  ." 

FN6  SEE SEC. 22(1), INTERNAL SECURITY ACT, NOTE 4, SUPRA. 

FN7  SEE NOTE 5, SUPRA. 

FN8  BEFORE THE PASSAGE OF THE INTERNAL SECURITY ACT THE FOUR
PETITIONERS HAD BEEN ARRESTED AND ADMITTED TO BAIL ON WARRANTS CHARGING
MEMBERSHIP IN GROUPS ADVOCATING THE OVERTHROW OF THE GOVERNMENT BY
FORCE AND VIOLENCE.  IN OUR VIEW OF THE ISSUES NOW HERE, THESE FORMER
HAPPENINGS ARE IMMATERIAL TO OUR CONSIDERATION OF THIS WRIT OF
CERTIORARI. 

FN9  "EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR EXCESSIVE FINES
IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED." 

FN10  "THAT SECTION 20 OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, AS
AMENDED BY SECTION 23 OF PUBLIC LAW 831, 81ST CONGRESS (COMMONLY KNOWN
AS SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950) AND SECTION 1 OF THE ACT
OF OCTOBER 16, 1918 (8 U.S.C. 137), AS AMENDED, ARE, AND EACH OF THEM
IS, UNCONSTITUTIONAL AND VOID IN THAT THEY DEPRIVE PERSONS, INCLUDING
PETITIONER, OF LIBERTY AND PROPERTY WITHOUT DUE PROCESS OF LAW, IN
VIOLATION OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES IN THAT THEY ABRIDGE THE FREEDOM OF PERSONS, INCLUDING
PETITIONER, OF SPEECH, THE PRESS AND ASSEMBLY AND THE RIGHT TO PETITION
THE GOVERNMENT FOR REDRESS OF GRIEVANCES, IN VIOLATION OF THE FIRST
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, AND IN THAT THEY
PURPORT TO AUTHORIZE INDEFINITE DETENTION OF PERSONS, INCLUDING
PETITIONER, WITHOUT BOND PRIOR TO FINAL DETERMINATION OF
DEPORTABILITY." 

FN11  CARLSON V. LANDON, 186 F.2D 183, 186; STEVENSON V. LANDON, 186
F.2D 190. 

FN12  ID., AT 189. 

FN13  28 U.S.C. SEC. 2248: 

"THE ALLEGATIONS OF A RETURN TO THE WRIT OF HABEAS CORPUS OR OF AN
ANSWER TO AN ORDER TO SHOW CAUSE IN A HABEAS CORPUS PROCEEDING, IF NOT
TRAVERSED, SHALL BE ACCEPTED AS TRUE EXCEPT TO THE EXTENT THAT THE
JUDGE FINDS FROM THE EVIDENCE THAT THEY ARE NOT TRUE." 

FN14  CARLSON V. LANDON, 187 F.2D 991. 

FN15  QUITE PROPERLY, WE THINK, NO QUESTION IS RAISED AS TO THE
APPLICABILITY OF THE INTERNAL SECURITY ACT AMENDMENTS RELATING TO
MEMBERSHIP IN THE COMMUNIST PARTY AND ALLOWANCE OF BAIL, NOTES 4 AND 5,
SUPRA, TO DETENTION UNDER A WARRANT BASED ON 8 U.S.C.  (1946 ED.) 
SEC.  137(C), NOTE 3, SUPRA.  CF. INTERNAL SECURITY ACT, 64 STAT. 987,
TITLE I, SEC. 2. 

FN16  "THAT THE PETITIONER, WHILE UNDER CROSS-EXAMINATION BY THE
CHIEF ASSISTANT UNITED STATES ATTORNEY, WAS A CONSISTENTLY EVASIVE
WITNESS AND HIS EVASIVE DEMEANOR IN TESTIFYING IN RELATION TO HIS
COMMUNISTIC ACTIVITIES CONVINCES THIS COURT THAT HE IS KNOWINGLY AND
WILFULLY PARTICIPATING IN THE COMMUNIST MOVEMENT." 

FN17  187 F.2D AT 803: 

"APPELLANT WAS SEVENTEEN YEARS OF AGE WHEN HE ARRIVED IN THIS COUNTRY
FROM POLAND IN 1913.  SINCE THEN HE HAS LIVED CONTINUOUSLY IN THE STATE
OF MICHIGAN.  H HAS BEEN A WAITER IN AN ENGLISH SPEAKING RESTAURANT IN
HAMTRAMCK, MICH., FOR SEVENTEEN YEARS AND FOR A GREAT PART OF THAT TIME
HE WAS HEAD WAITER.  HE OWNS HIS OWN HOME IN DETROIT AND HAS A FAMILY
CONSISTING OF HIS WIFE, TWO SONS, A DAUGHTER, AND FIVE GRANDCHILDREN. 
BOTH SONS SERVED IN THE ARMED SERVICES OF THE UNITED STATES IN WORLD
WAR II.  HIS CHILDREN AND GRANDCHILDREN WERE BORN IN THIS COUNTRY AND
HIS DAUGHTER MARRIED HERE.  DURING WORLD WAR II WHILE APPELLANT WAS
HEAD WAITER IN THE RESTAURANT HE SOLD ABOUT $50,000.00 WORTH OF U.S.
WAR BONDS AND DURING THAT PERIOD HE DONATED BLOOD ON SEVEN OCCASIONS TO
THE RED CROSS FOR THE UNITED STATES ARMY. 

"BEFORE HIS SECOND ARREST AND WHILE HE WAS AT LARGE ON BAIL HE
REPORTED REGULARLY TO THE DEPARTMENT OF IMMIGRATION AND NATURALIZATION
SERVICE.  THE RECORD FAILS TO DISCLOSE THAT HE HAS VIOLATED ANY LAW OR
THAT HE IS ENGAGED OR IS LIKELY TO ENGAGE IN, ANY SUBVERSIVE
ACTIVITIES." 

FN18  NISHIMURA EKIU V. UNITED STATES, 142 U.S. 651, 659; FONG YUE
TING V. UNITED STATES, 149 U.S. 698, 707; BUGAJEWITZ V. ADAMS, 228 U.S.
585; NG FUNG HO V. WHITE, 259 U.S. 276, 280; UNITED STATES V. CURTISS
WRIGHT EXPORT CORP., 229 U.S. 304, 318; EICHENLAUB V. SHAUGHNESSY, 338
U.S. 521, 528; III HACKWORTH'S DIGEST OF INTERNATIONAL LAW 725 (1942). 

FN19  FOR EXAMPLE COMPARE ACT OF DECEMBER 17, 1943, 57 STAT. 600,
WITH ACT OF MAY 6, 1882, 22 STAT. 58. 

FN20  SEE NOTE 4, SUPRA.  THE EXTENSION OF THE PROSCRIPTION OF
RESIDENCE TO ALIENS BELIEVING IN THE OVERTHROW OF GOVERNMENT BY FORCE
OR VIOLENCE HAS BEEN PROGRESSIVE, AS CAN BE READILY OBSERVED BY
FOLLOWING THE SUCCESSIVE ENACTMENTS OF LAWS TO REGULATE THE RESIDENCE
OF ALIENS SINCE THE ACT OF FEBRUARY 5, 1917, 39 STAT. 874.  SEE 8
U.S.C. SECS. 137 AND 155. 

FN21  "(15)  THE COMMUNIST MOVEMENT IN THE UNITED STATES IS AN
ORGANIZATION NUMBERING THOUSANDS OF ADHERENTS, RIGIDLY AND RUTHLESSLY
DISCIPLINED.  AWAITING AND SEEKING TO ADVANCE A MOMENT WHEN THE UNITED
STATES MAY BE SO FAR EXTENDED BY FOREIGN ENGAGEMENTS, SO FAR DIVIDED IN
COUNSEL, OR SO FAR IN INDUSTRIAL OR FINANCIAL STRAITS, THAT OVERTHROW
OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE MAY SEEM
POSSIBLE OF ACHIEVEMENT, IT SEEKS CONVERTS FAR AND WIDE BY AN EXTENSIVE
SYSTEM OF SCHOOLING AND INDOCTRINATION.  SUCH PREPARATIONS BY COMMUNIST
ORGANIZATIONS IN OTHER COUNTRIES HAVE AIDED IN SUPPLANTING EXISTING
GOVERNMENTS.  THE COMMUNIST ORGANIZATION IN THE UNITED STATES, PURSUING
ITS STATED OBJECTIVES, THE RECENT SUCCESSES OF COMMUNIST METHODS IN
OTHER COUNTRIES, AND THE NATURE AND CONTROL OF THE WORLD COMMUNIST
MOVEMENT ITSELF, PRESENT A CLEAR AND PRESENT DANGER TO THE SECURITY OF
THE UNITED STATES AND TO THE EXISTENCE OF FREE AMERICAN INSTITUTIONS,
AND MAKE IT NECESSARY THAT CONGRESS, IN ORDER TO PROVIDE FOR THE COMMON
DEFENSE, TO PRESERVE THE SOVEREIGNTY OF THE UNITED STATES AS AN
INDEPENDENT NATION, AND TO GUARANTEE TO EACH STATE A REPUBLICAN FORM OF
GOVERNMENT, ENACT APPROPRIATE LEGISLATION RECOGNIZING THE EXISTENCE OF
SUCH WORLD-WIDE CONSPIRACY AND DESIGNED TO PREVENT IT FROM
ACCOMPLISHING ITS PURPOSE IN THE UNITED STATES." 

FN22  I TROTSKY, HISTORY OF THE RUSSIAN REVOLUTION, 106, 120, 141,
144, 151; LENIN, COLLECTED WORKS (1930), VOL. XVIII, PP. 279-280;
LENIN, THE STATE AND REVOLUTION, AUGUST, 1917, FOREIGN LANGUAGES
PUBLISHING HOUSE, MOSCOW (1949), 28, 30, 33.  TRANSLATIONS FURNISHED
INDICATE THE SAME ATTITUDE ON THE PART OF STALIN.  COLLECTED WORKS,
VOL. I, PP. 131-137, 185-205, 241-246; VOL. III, PP. 367-370.  AND SEE
LEITES, THE OPERATIONAL CODE OF THE POLITBURO (1950), C. XIII,
"VIOLENCE."  SEE ALSO IMMIGRATION AND NATURALIZATION SYSTEMS OF THE
UNITED STATES, S. REP. NO. 1515, 81ST CONG., 2D SESS., SENATE COMMITTEE
ON THE JUDICIARY, PART 3, SUBVERSIVES, C. I, B, ALIEN CONTROL; C. II,
C. DEPORTATION OF SUBVERSIVE ALIENS. 

FN23  TURNER V. WILLIAMS, 194 U.S. 279; SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118, MR. JUSTICE DOUGLAS CONCURRING AT 165. 

FN24  BUGAJEWITZ V. ADAMS, 228 U.S. 585, 591; NG FUNG HO V. WHITE,
259 U.S. 276, 280. 

FN25  MAHLER V. EBY, 264 U.S. 32, 39: 

"CONGRESS WAS, IN THE EXERCISE OF ITS UNQUESTIONED RIGHT, ONLY
SEEKING TO RID THE COUNTRY OF PERSONS WHO HAD SHOWN BY THEIR CAREER
THAT THEIR CONTINUED PRESENCE HERE WOULD NOT MAKE FOR THE SAFETY OR
WELFARE OF SOCIETY."  SEE ALSO EICHENLAUB V. SHAUGHNESSY, 338 U.S. 521,
530.  COMPARE HARISIADES V. SHAUGHNESSY, 342 U.S. 580, DECIDED TODAY. 

FN26  UNITED STATES V. CURTISS-WRIGHT EXPORT CORP., 299 U.S. 304,
318. 

FN27  FONG YUE TING V. UNITED STATES, 149 U.S. 698, 713-715, 728;
NISHIMURA EKIU V. UNITED STATES, 142 U.S. 651, 659; THE JAPANESE
IMMIGRANT CASE, 189 U.S. 86, 97; ZAKONAITE V. WOLF, 226 U.S. 272; WONG
WING V. UNITED STATES, 163 U.S. 228, 231. 

A CLAIM OF CITIZENSHIP HAS PROTECTION.  NG FUNG HO V. WHITE, 259 U.S.
276. 

FN28  TURNER V. WILLIAMS, 194 U.S. 279, 290-291; ZAKONAITE V. WOLF,
226 U.S. 272, 275; BUGAJEWITZ V. ADAMS, 228 U.S. 585, 591; MAHLER V.
EBY, 264 U.S. 32. 

FN29  FONG HAW TAN V. PHELAN, 333 U.S. 6, 10; JORDAN V. DE GEORGE,
341 U.S. 223, 231. 

FN30  THE JAPANESE IMMIGRANT CASE, 189 U.S. 86; VAJTAUER V.
COMMISSIONER, 273 U.S. 103. 

FN31  THE FORMER PROVISION READ AS FOLLOWS: 

"  ...  PENDING THE FINAL DISPOSAL OF THE CASE OF ANY ALIEN SO TAKEN
INTO CUSTODY, HE MAY BE RELEASED UNDER A BOND IN THE PENALTY OF NOT
LESS THAN $500 WITH SECURITY APPROVED BY THE ATTORNEY GENERAL,
CONDITIONED THAT SUCH ALIEN SHALL BE PRODUCED WHEN REQUIRED FOR A
HEARING OR HEARINGS IN REGARD TO THE CHARGE UPON WHICH HE HAS BEEN
TAKEN INTO CUSTODY, AND FOR DEPORTATION IF HE SHALL BE FOUND TO BE
UNLAWFULLY WITHIN THE UNITED STATES."  8 U.S.C. (1946 ED.)  SEC.  156. 

ON DECEMBER 7, 1951, AT THE REQUEST OF THIS COURT, THE GOVERNMENT
FURNISHED US A LIST OF THE BAIL OR DETENTION STATUS, AS OF THE PERIOD
JUST PRIOR TO DECEMBER 7, OF DEPORTATION CASES, INVOLVING SUBVERSIVE
CHARGES, PENDING ON THE DATE OF THE ENACTMENT OF THE INTERNAL SECURITY
ACT, SEPTEMBER 23, 1950.  THE LIST INDICATES THAT THE MODEST BONDS OR
PERSONAL RECOGNIZANCES OF THE FAR LARGER PART OF THE ALIENS REMAINED
UNCHANGED AFTER THE BOND AMENDMENT TO THE IMMIGRATION ACT.  OF THOSE
DETAINED WITHOUT BOND OR ORDER OF THE SERVICE, THE COURTS HAVE RELEASED
ALL BUT A FEW.  IT IS QUITE CLEAR FROM THE LIST THAT DETENTION WITHOUT
BOND HAS BEEN THE EXCEPTION. 

FN32  H.R. REP. NO. 1192, 81ST CONG., 1ST SESS., P. 6; S. REP. NO.
2239, 81ST CONG., 2D SESS., P. 5. 

FN33  169 F.2D AT 751: 

"THE DISCRETION OF THE ATTORNEY GENERAL WHICH WE HELD TO EXIST IN THE
ZAPP CASE IS INTERPRETED AS ONE WHICH IS TO BE REASONABLY EXERCISED
UPON A CONSIDERATION OF SUCH FACTORS, AMONG OTHERS, AS THE PROBABILITY
OF THE ALIEN BEING FOUND DEPORTABLE, THE SERIOUSNESS OF THE CHARGE
AGAINST HIM, IF PROVED, THE DANGER TO THE PUBLIC SAFETY OF HIS PRESENCE
WITHIN THE COMMUNITY, AND THE ALIEN'S AVAILABILITY FOR SUBSEQUENT
PROCEEDINGS IF ENLARGED ON BAIL.  HOWEVER, IN ANY CONSIDERATION OF HIS
DENIAL OF BAIL IT SHOULD ALWAYS BE BORNE IN MIND THAT THE COURT'S
OPINION AS TO WHETHER THE ALIEN SHOULD BE ADMITTED TO BAIL CAN ONLY
OVERRIDE THAT OF THE ATTORNEY GENERAL WHERE THE ALIEN MAKES A CLEAR AND
CONVINCING SHOWING THAT THE DECISION AGAINST HIM WAS WITHOUT A
REASONABLE FOUNDATION."  SEE U.S. EX REL. DOYLE V. DISTRICT DIRECTOR,
169 F.2D 753; U.S. EX REL.  PIRINSKY V. SHAUGHNESSY, 177 F.2D 708; U.S.
EX REL. DE GERONIMI V. SHAUGHNESSY, 187 F.2D 896.  (THIS IS THE ONLY
CASE FROM THE SECOND CIRCUIT COURT OF APPEALS SINCE THE INTERNAL
SECURITY ACT.  IT LEAVES OPEN THE QUESTION OF THE REVIEWABILITY OF THE
ATTORNEY GENERAL'S ACTION UNDER THAT ACT.) 

FN34  THE PROPOSED BILLS AT ONE TIME CONTAINED A PROVISION:    "(F)
NO ALIEN DETAINED UNDER ANY PROVISION OF LAW RELATING TO THE EXCLUSION
OR EXPULSION OF ALIENS SHALL, PRIOR TO AN UNREVIEWABLE ORDER
DISCHARGING HIM FROM CUSTODY, BE RELEASED BY ANY COURT, ON BOND OR
OTHERWISE, EXCEPT PURSUANT TO THE ORDER OF A FEDERAL COURT COMPOSED OF
THREE JUDGES."  S. REP. NO. 2239, 81ST CONG., 2D SESS., P. 3.  THIS WAS
INTORDUCED TO ALLOW FOR POSSIBLE RELEASE FROM CUSTODY PENDING
DEPORTATION HEARINGS.  ID., AT P. 9.  THE CLAUSE DID NOT SURVIVE. 

FN35  EVEN THOUGH WE ALSO TAKE INTO CONSIDERATION THE FACTOR OF
PROBABLE AVAILABILITY FOR TRIAL, WHICH WE DO NOT THINK IS OF GREAT
SIGNIFICANCE IN CASES INVOLVING SECURITY FROM COMMUNIST ACTIVITIES OF
ALIEN COMMUNISTS, THE PAST RECORD OF THESE ALIENS IS FAR FROM DECISIVE
AGAINST THE ATTORNEY GENERAL'S ACTION.  THE INTERNAL SECURITY ACT MADE
MEMBERSHIP SUFFICIENT FOR DEPORTATION AND SET UP A PROCEDURE THAT COULD
BE CARRIED OUT.  SEC. 22(2)(C), NOTE 4, SUPRA, AND SEC. 23. 
DEPORTATION BECAME MORE LIKELY FOR ALIEN COMMUNISTS BY THESE
AMENDMENTS. 

FN36  BUTTFIELD V. STRANAHAN, 192 U.S. 470; UNION BRIDGE CO. V.
UNITED STATES, 204 U.S. 364, 386; UNITED STATES V. GRIMAUD, 220 U.S.
506; PANAMA REFINING CO. V. RYAN, 293 U.S. 388, 421: 

"THE CONSTITUTION HAS NEVER BEEN REGARDED AS DENYING TO THE CONGRESS
THE NECESSARY RESOURCES OF FLEXIBILITY AND PRACTICALITY, WHICH WILL
ENABLE IT TO PERFORM ITS FUNCTION IN LAYING DOWN POLICIES AND
ESTABLISHING STANDARDS, WHILE LEAVING TO SELECTED INSTRUMENTALITIES THE
MAKING OF SUBORDINATE RULES WITHIN THE PRESCRIBED LIMITS AND THE
DETERMINATION OF FACTS TO WHICH THE POLICY AS DECLARED BY THE
LEGISLATURE IS TO APPLY." 

FN37  WAYMAN V. SOUTHARD, 10 WHEAT.  1, 43-48; ST. LOUIS, I.M.&S.R.
CO. V. TAYLOR 210 U.S. 281, 286; INTERMOUNTAIN RATE CASES, 234 U.S.
476, 486-489; FAHEY V. MALLONEE, 332 U.S. 245, 249.  SEE YAKUS V.
UNITED STATES, 321 U.S. 414, 424-425: 

"THE ESSENTIALS OF THE LEGISLATIVE FUNCTION ARE THE DETERMINATION OF
THE LEGISLATIVE POLICY AND ITS FORMULATION AND PROMULGATION AS A
DEFINED AND BINDING RULE OF CONDUCT  ...  .  THESE ESSENTIALS ARE
PRESERVED WHEN CONGRESS HAS SPECIFIED THE BASIC CONDITIONS OF FACT UPON
WHOSE EXISTENCE OR OCCURRENCE, ASCERTAINED FROM RELEVANT DATA BY A
DESIGNATED ADMINISTRATIVE AGENCY, IT DIRECTS THAT ITS STATUTORY COMMAND
SHALL BE EFFECTIVE.  IT IS NO OBJECTION THAT THE DETERMINATION OF FACTS
AND THE INFERENCES TO BE DRAWN FROM THEM IN THE LIGHT OF THE STATUTORY
STANDARDS AND DECLARATION OF POLICY CALL FOR THE EXERCISE OF JUDGMENT,
AND FOR THE FORMULATION OF SUBSIDIARY ADMINISTRATIVE POLICY WITHIN THE
PRESCRIBED STATUTORY FRAMEWORK." 

FN38  ANY ALIEN BECOMING A PUBLIC CHARGE WITHIN FIVE YEARS OF ENTRY
MAY BE SUBJECT TO DEPORTATION.   LIKEWISE ANY ALIEN SENTENCED MORE THAN
ONCE FOR ANY CRIME INVOLVING MORAL TURPITUDE, AND CERTAIN ILLEGAL
ENTRANTS.  SEE 8 U.S.C. SEC. 155. 

FN39  APPROXIMATELY 85,000,000 PEOPLE, CITIZENS AND ALIENS, ARE SAID
TO HAVE CROSSED OUR BORDERS IN THE 1949 FISCAL YEAR.  SOME MANY TIMES. 
FIVE MILLION ALIENS ARE REPORTED TO HAVE REGISTERED UNDER THE ALIEN
REGISTRATION ACT OF 1940.  S. REP. NO. 1515, PP. 630-631, SUPRA, N.
22. 

FN40  SEE FOR EXAMPLE SEC. 2(15), QUOTED ABOVE AT NOTE 21. 

FN41  ATTENTION IS CALLED TO UNITED STATES EX REL. POTASH V. DISTRICT
DIRECTOR, 169 F.2D 747, 752:

"IF THE EIGHTH AMENDMENT TO THE CONSTITUTION IS CONSIDERED TO HAVE
ANY BEARING UPON THE RIGHT TO BAIL IN DEPORTATION PROCEEDINGS, AND THIS
HAS BEEN DENIED, IT IS OUR OPINION THAT THE PROVISIONS OF THAT
AMENDMENT AND ANY REQUIREMENT OF THE DUE PROCESS PROVISIONS OF THE
FIFTH AMENDMENT WILL BE FULLY SATISFIED IF THE STANDARDS OF FAIRNESS
AND REASONABLENESS WE HAVE SET FORTH REGARDING THE EXERCISE OF
DISCRETION BY THE ATTORNEY GENERAL ARE OBSERVED." 

UNITED STATES EX REL. KLIG V. SHAUGHNESSY, 94 F. SUPP. 157, 160: 

"IT IS NOT UNAPPROPRIATE TO REFER HERE TO THE EIGHTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES, ONE OF THAT SERIES OF AMENDMENTS
COLLECTIVELY KNOWN AS THE BILL OF RIGHTS, WHICH PROHIBITS THE
IMPOSITION OF EXCESSIVE BAIL.  CERTAINLY, THE PRINCIPLE INHERENT IN
THAT AMENDMENT APPLIES TO DEPORTATION PROCEEDINGS, WHETHER OR NOT SUCH
PROCEEDINGS TECHNICALLY FALL WITHIN ITS SCOPE.  THAT PRINCIPLE CANNOT
BE RECONCILED WITH THE GOVERNMENT'S DENIAL OF BAIL TO THESE RELATORS
UNDER THE CIRCUMSTANCES HERE SET FORTH." 

FN42  1 WM. & MARY, SESS. 2, C. II, SEC. I(10). 

FN43  PETERSDORFF, ON BAIL, 483 ET SEQ. 

FN44 I ANNALS OF CONGRESS 753. 

FN45  1 STAT. 91, SEC. 33; FEDERAL RULES OF CRIMINAL PROCEDURE,
46(A). 

SIMILARLY, ON APPEAL FROM A CONVICTION BY THE TRIAL COURT, A
DEFENDANT IS NOT ENTITLED TO BAIL IF HE DOES NOT PRESENT A SUBSTANTIAL
QUESTION.  FED. RULES CRIM. PROC., 46(A)(2); BRIDGES V. UNITED STATES,
184 F.2D 881, 884; WILLIAMSON V. UNITED STATES, 184 F.2D 280, 281;
BAKER V. UNITED STATES, 139 F.2D 721. 

IN ENGLAND, THERE WAS A SERIES OF CRIMES AND SITUATIONS WHERE THE
ARRESTED PERSON COULD "HAVE NO OTHER SURETIES BUT THE FOUR WALLS OF THE
PRISON."  BLACKSTONE'S COMMENTARIES, BOOK IV, 298. 

FN46  SEE UNITED STATES EX REL. BILOKUMSKY V. TOD, 263 U.S. 149, 158,
AND CASES THERE CITED; MAHLER V. EBY, 264 U.S. 32, 45.  THESE CASES HAD
VALID ORDERS ENTERED SUBSEQUENT TO AN INVALID ARREST. 

FN47  SEE UNITED STATES EX REL. HEIKKINEN V. GORDON, 190 F.2D 16, 19;
DOYLE V. RUSSELL, 30 BARB.  (N.Y.)  300. 

FN48  PEOPLE EX REL. WOLFE V. JOHNSON, 230 N.Y. 256, 130 N.E. 286. 

FN49  VOLL V. STEELE, 141 OHIO ST. 293, 47 N.E.2D 991.  CF. PORTER V.
GARMONY, 148 GA. 261, 96 S.E. 426.  BAIL ONCE ALLOWED BY A MAGISTRATE,
PENDING TRIAL, MAY NOT IN SOME INSTANCES BE REFUSED BY A HIGHER COURT. 
IN RE MARSHALL, 38 ARIZ. 424, 300 P. 1011. 

FN50  ANDERSON V. CORALL, 263 U.S. 193, 196. 

FN51  TAYLOR V. TAINTOR, 16 WALL.  366, 371. 

FN52  SEE DOWD V. COOK, 340 U.S. 206; MAHLER V. EBY, 264 U.S. 32,
45. 

MR. JUSTICE BLACK, DISSENTING. 

TODAY THE COURT HOLDS THAT LAW-ABIDING PERSONS, NEITHER CHARGED WITH
NOR CONVICTED OF ANY CRIME, CAN BE HELD IN JAIL INDEFINITELY, WITHOUT
BAIL, IF A SUBORDINATE WASHINGTON BUREAU AGENT BELIEVES THEY ARE
MEMBERS OF THE COMMUNIST PARTY, AND THEREFORE DANGEROUS TO THE NATION
BECAUSE OF THE POSSIBILITY OF THEIR "INDOCTRINATION OF OTHERS." 
UNDERLYING THIS HARSH HOLDING ARE PAST DECISIONS OF THIS COURT
DECLARING THAT CONGRESS MAY CONSTITUTIONALLY DIRECT THE SUMMARY
DEPORTATION OF ALIENS FOR ANY REASON IT SEES FIT.  I AGREE WITH MR.
JUSTICE DOUGLAS FOR THE REASONS HE GIVES IN HIS DISSENTING OPINION IN
HARISIADES V. SHAUGHNESSY, 342 U.S. 580, 598, THAT THESE PRIOR
DECLARATIONS SHOULD NOW BE RECONSIDERED AND REJECTED.  THIS WOULD
DISPOSE OF THESE CASES.  BUT THE COURT TODAY NOT ONLY ADHERE TO BUT
GREATLY EXPANDS THE CONSTITUTIONAL DOCTRINE OF THE FORMER CASES.  THE
COURT ALSO RELIES ON THE INTERNAL SECURITY ACT OF 1950, 64 STAT.  987,
FOR ITS HOLDING.  MR. JUSTICE FRANKFURTER PRESENTS STRONG ARGUMENTS FOR
CONSTRUING THE ACT SO AS TO REACH AN OPPOSITE RESULT.  BUT EVEN IF
AUTHORIZED BY THAT ACT, AS THE MAJORITY HOLDS, THE DENIAL OF A RIGHT TO
BAIL UNDER THE CIRCUMSTANCES OF THESE CASES STRIKES ME AS A SHOCKING
DISREGARD OF THE FOLLOWING PROVISIONS OF THE BILL OF RIGHTS:  EIGHTH
AMENDMENT'S BAN AGAINST EXCESSIVE BAIL; (FN1) FIRST AMENDMENT'S BAN
AGAINST ABRIDGMENT OF THOUGHT, SPEECH AND PRESS; (FN2) FIFTH
AMENDMENT'S BAN AGAINST DEPRIVING A PERSON OF LIBERTY WITHOUT DUE
PROCESS OF LAW.  (FN3)  BEFORE A DETAILED DISCUSSION OF MY SEVERAL
GROUNDS OF DISSENT IT IS NECESSARY TO STATE THE FACTS AND THE PRECISE
ISSUES THE RECORDS PRESENT. 

RESPONDENT ZYDOK, PETITIONERS CARLSON AND OTHERS WERE ALL ARESTED
("DETAINED") IN CONNECTION WITH PROCEEDINGS WHICH MIGHT LEAD TO THEIR
DEPORTATION.  A SUBORDINATE OF THE COMMISSIONER OF IMMIGRATION, NOT THE
ATTORNEY GENERAL, DIRECTED THAT THEY BE HELD IN PRISON WITHOUT BAIL. 
OF NECESSITY, CONSIDERATION OF THESE DEPORTATION PROCEEDINGS BY BUREAUS
AND COURTS MAY LAST FOR YEARS.  CARLSON'S HAS ALREADY DRAGGED ON FOR
OVER FOUR YEARS.  MOREOVER, EVEN DEPORTATION ORDERS AT THE END OF SUCH
PROCEEDINGS MIGHT NOT END THEIR INDETERMINATE JAIL SENTENCES SINCE THE
FOREIGN COUNTRIES TO WHICH THEY ARE ORDERED MIGHT REFUSE TO ADMIT
THEM.  SUCH REFUSALS HAVE PREVENTED DEPORTATION IN THOUSANDS OF CASES. 
(FN4)  THUS DENIAL OF BAIL MAY WELL BE THE EQUIVALENT OF A LIFE
SENTENCE, AT LEAST FOR ZYDOK, 56 YEARS OLD, AND CARLISLE WHOSE HEALTH
IS BAD.  SUCH HAS BECOME THE FATE OF ORDINARY FAMILY PEOPLE SELECTED
AND CLASSIFIED, ON SECRET INFORMATION, AS "DANGEROUS" BY WASHINGTON
BUREAU AGENTS. 

ZYDOK'S CASE ILLUSTRATES WHAT IS HAPPENING.  HE HAS LIVED IN THIS
COUNTRY 39 YEARS, OWNS HIS HOME, HAS VIOLATED NO LAW, IS "NOT LIKELY TO
ENGAGE IN ANY SUBVERSIVE ACTIVITIES," HAS A WIFE, TWO SONS, A DAUGHTER
AND FIVE GRANDCHILDREN, ALL BORN IN THE UNITED STATES.  BOTH SONS
SERVED IN THE ARMED SERVICES IN WORLD WAR II.  ZYDOK HIMSELF, THEN A
WAITER, SOLD ABOUT $50,000 WORTH OF U.S. WAR BONDS AND "DONATED BLOOD
ON SEVEN OCCASIONS TO THE RED CROSS FOR THE UNITED STATES ARMY."  THIS
JAILING OF ZYDOK, DESPITE A PATRIOTIC RECORD OF WHICH MANY CITIZENS
COULD WELL BE PROUD, IS TYPICAL OF WHAT ACTUALLY HAPPENS WHEN PUBLIC
FEELING RUN HIGH AGAINST AN UNPOPULAR MINORITY. 

WHILE THE COURT GIVES ZYDOK A MOMENTARY TECHNICAL RESPITE, ITS
HOLDING MEANS THAT HE TOO, PURSUANT TO THE GOVERNMENT'S PRESENT
PROGRAM, CAN AND WILL BE HELD IN JAIL WITHOUT BOND AS A "DANGEROUS"
CHARACTER.  THE OTHERS, WITH EQUALLY ENVIABLE RECORDS AS LAW-ABIDING
PERSONS, ARE NOT EVEN GIVEN A TECHNICAL RESPITE.  MRS. STEVENSON IS THE
WIFE OF A CITIZEN AND IS THE MOTHER OF A YOUNG MAN WHO IS ALSO A
CITIZEN.  HER SON HAS LONG BEEN SUBJECT TO ATTACKS OF UNDULANT FEVER. 
HE AND HIS 70-YEAR-OLD GRANDMOTHER NEED MRS. STEVENSON'S HELP AS DOES
HER HUSBAND WHO DOES HER HOUSEWORK WHILE SHE IS "DETAINED" AS
"DANGEROUS" TO OUR NATIONAL SECURITY.  THE DISTRICT JUDGE TRIED TO
PERSUADE THE REPRESENTATIVES OF THE IMMIGRATION BUREAU AND THE ATTORNEY
GENERAL TO AGREE FOR HIM TO ENTER AN ORDER FIXING BAIL FOR HER AND FOR
MR. CARLISLE.  HIS REQUEST WAS REFUSED. 

THE RECORD DOES NOT LEAVE US IN DOUBT AS TO WHY BAIL WAS DENIED MRS.
STEVENSON, MR. CARLISLE, OR ANY OF THESE ALLEGEDLY "DANGEROUS" ALIENS. 
DENIAL WAS NOT ON THE GROUND THAT IF RELEASED THEY MIGHT TRY TO EVADE
OBEDIENCE TO POSSIBLE DEPORTATION ORDERS.  THE DISTRICT JUDGE IN NO. 35
CONCEDED THAT "THERE IS NOTHING HERE TO INDICATE THE GOVERNMENT IS
FEARFUL THAT THEY ARE GOING TO LEAVE THE JURISDICTION"; HE SAID, I AM
NOT GOING TO RELEASE MEN AND WOMEN THAT THE ATTORNEY GENERAL'S OFFICE
SAYS ARE SECURITY RISKS"; HE ALSO SAID, "I AM NOT GOING TO TURN THESE
PEOPLE LOOSE IF THEY ARE COMMUNISTS, ANY MORE THAN I WOULD TURN LOOSE A
DEADLY GERM IN THIS COMMUNITY.  IF THAT IS MY DUTY LET THE CIRCUIT
COURT SAY SO AND ASSUME THAT BURDEN."  (FN5)  THESE REMARKS TO COUNSEL
SHOW THAT HE KEPT THESE PEOPLE IN JAIL ONLY BECAUSE HE THOUGHT
COMMUNISTS, AS SUCH, WERE TOO DANGEROUS TO THE NATION TO BE ALLOWED TO
ASSOCIATE WITH OTHER PEOPLE.  THE COURT OF APPEALS' DENIAL OF BAIL WAS
ALSO BASED ON THE PREMISE THAT COMMUNISTS WERE TOO DANGEROUS TO THE
NATION TO BE LEFT OUT OF JAIL, NOT ON THE PREMISE THAT DEPORTATION
WOULD BE DELAYED OR FRUSTRATED BY GRANTING BAIL.  187 F.2D 991.  AND
THE SOLICITOR GENERAL HAS ADMITTED HERE THAT "THE ONLY EVIDENCE
ADVANCED TO SUPPORT THEIR DETENTION WITHOUT BAIL WAS THAT THEY HAD BEEN
ACTIVE IN THE COMMUNIST MOVEMENT."  THE MAJORITY HERE ALSO APPEARS TO
REST ON THE SAME BASIS.  IT MUST, UNLESS IT IS NOW DRAWING INFERENCES
THAT SOME MIGHT FLEE AND BE UNAVAILABLE FOR DEPORTATION.  AS THE
GOVERNMENT ADMITS, THERE IS NOT A VESTIGE OF SUPPORT FOR SUCH AN
INFERENCE.  (FN6)  BESIDES, AN ALIEN "WHO SHALL WILLFULLY FAIL OR
REFUSE TO PRESENT HIMSELF FOR DEPORTATION  ...  SHALL UPON CONVICTION
BE GUILTY OF A FELONY, AND SHALL BE IMPRISONED NOT MORE THAN TEN YEARS
...  ."  64 STAT. 987, 1012. 

THUS IT CLEARLY APPEARS THAT THESE ALIENS ARE HELD IN JAIL WITHOUT
BAIL FOR NO REASON EXCEPT THAT "THEY HAD BEEN ACTIVE IN THE COMMUNIST
MOVEMENT."  FROM THIS IT IS CONCLUDED THAT THEIR ASSOCIATION WITH
OTHERS WOULD SO IMPERIL THE NATION'S SAFETY THAT THEY MUST BE ISOLATED
FROM THEIR FAMILIES AND COMMUNITIES.  ON THIS PREMISE THEY WOULD BE
JUST AS DANGEROUS WHETHER ALIENS OR CITIZENS, DEPORTABLE OR NOT.  SINCE
IT IS NOT NECESSARY TO KEEP THEM IN JAIL TO ASSURE THEIR COMPLIANCE
WITH A DEPORTATION ORDER, THEIR IMPRISONMENT CANNOT POSSIBLY BE
INTENDED AS AN AID TO DEPORTATION.  THEY ARE KEPT IN JAIL SOLELY
BECAUSE A BUREAU AGENT THINKS THAT IS WHERE COMMUNISTS SHOULD BE.  A
POWER TO PUT IN JAIL BECAUSE DANGEROUS CANNOT BE DERIVED FROM A POWER
TO DEPORT.  CONSEQUENTLY PRIOR CASES HOLDING THAT CONGRESS HAS POWER TO
DEPORT ALIENS PROVIDE NO SUPPORT AT ALL FOR TODAY'S HOLDING THAT
CONGRESS HAS POWER TO AUTHORIZE BUREAU AGENTS TO PUT "DANGEROUS" PEOPLE
IN JAIL WITHOUT PRIVILEGE OF BAIL. 

THE STARK FACT IS THAT IF CONGRESS CAN AUTHORIZE IMPRISONMENT OF
"ALIEN COMMUNISTS" BECAUSE DANGEROUS, IT CAN AUTHORIZE IMPRISONMENT OF
CITIZEN "COMMUNISTS" ON THE SAME GROUND.  AND WHILE THIS PARTICULAR
BUREAU CAMPAIGN TO FILL THE JAILS IS SAID TO BE AIMED AT "DANGEROUS"
ALIEN COMMUNISTS ONLY, PEACEFUL CITIZENS MAY BE ENSNARED IN THE
PROCESS.  FOR THE BUREAU AGENT IS NOT REQUIRED TO PROVE THAT A PERSON
HE THROWS IN JAIL IS AN ALIEN, OR A COMMUNIST, OR "DANGEROUS."  THE
AGENT NEED ONLY DECLARE HE HAS REASON TO BELIEVE THAT SUCH IS THE
CASE.  THE AGENT MAY BE AND HERE APPARENTLY WAS ACTING ON THE RANKEST
HEARSAY EVIDENCE.  THE SECRET SOURCES OF HIS "INFORMATION" MAY HAVE
BEEN SPIES AND INFORMERS, A CLASS NOT USUALLY RATED AS THE MOST
RELIABLE BY PEOPLE WHO HAVE HAD EXPERIENCE WITH THEM.  (FN7)  IN THIS
RECORD THE NEAREST APPROACH TO ANY IDENTIFIABLE SOURCE OF INFORMATION
IS THAT SOME OF THE JAILED PERSONS HAD ADMITTED PAST MEMBERSHIP IN
ORGANIZATIONS LISTED BY THE ATTORNEY GENERAL AS "COMMUNIST," OR
"COMMUNIST FRONT."  THESE LISTINGS ARE MADE BY THE ATTORNEY GENERAL EX
PARTE ON SECRET DOSSIERS CONTAINING STATEMENTS FROM SOURCES THAT THE
ATTORNEY GENERAL REFUSES TO REVEAL.  A MAJORITY OF THIS COURT HAS HELD
THAT SUCH LISTINGS ARE ILLEGAL.  ANTI-FASCIST COMMITTEE V. MCGRATH, 341
U.S. 123.  THIS ALONE SHOULD BE ENOUGH TO REVERSE THE JUDGMENTS IN NO.
35.  MY OWN JUDGMENT IS THAT CONGRESS HAS NOT AUTHORIZED THE BUREAU OF
IMMIGRATION TO HOLD PEOPLE IN JAIL WITHOUT BOND SOLELY BECAUSE IT
BELIEVES THEM "DANGEROUS."  NOR DO I THINK THAT CONGRESS HAS POWER TO
GRANT ANY SUCH AUTHORITY EVEN IF IT HAD ATTEMPTED TO DO SO.    FIRST.
THAT "PENDING FINAL DETERMINATION OF THE DEPORTABILITY OF ANY ALIEN
TAKEN INTO CUSTODY UNDER WARRANT OF THE ATTORNEY GENERAL, SUCH ALIEN
MAY, IN THE DISCRETION OF THE ATTORNEY GENERAL (1) BE CONTINUED IN
CUSTODY; OR (2) BE RELEASED UNDER BOND IN THE AMOUNT OF NOT LESS THAN
$500, WITH SECURITY APPROVED BY THE ATTORNEY GENERAL; OR (3) BE
RELEASED ON CONDITIONAL PAROLE."  I READ THIS LANGUAGE AS ATTEMPTING TO
AUTHORIZE THE ATTORNEY GENERAL TO HOLD ALIENS WITHOUT BAIL WITHIN HIS
DISCRETION.  I THINK THAT MEANS THE ATTORNEY GENERAL'S DISCRETION, NOT
THAT OF A SUBORDINATE IN THE BUREAU OF IMMIGRATION.  THIS RECORD DOES
NOT SHOW THAT THESE PEOPLE WERE JAILED BY VIRTUE OF AN EXERCISE OF
DISCRETION BY THE ATTORNEY GENERAL.  DECISION TO PUT DEPORTABLE ALIENS
IN JAIL WITHOUT BOND (WITH VERY MINOR EXCEPTIONS) WAS MADE BY
SUBORDINATES IN THE BUREAU OF IMMIGRATION.  I AGREE WITH MR. JUSTICE
FRANKFURTER THAT THIS DECISION TO JAIL ALIENS EN MASSE WAS NOT BASED ON
THE KIND OF "DISCRETION" THE ACT INTENDED.  BUT I FURTHER THINK SEC. 23
SHOULD NOT BE CONSTRUED AS PERMITTING THE ATTORNEY GENERAL TO DELEGATE
THIS TREMENDOUS POWER TO OTHERS. 

THE GOVERNMENT FINDS A POWER TO SO DELEGATE IN PROVISIONS OF THE
ALIEN REGISTRATION ACT OF 1940, 8 U.S.C. SEC. 458(A) AND IN THE
PRESIDENT'S REORGANIZATION PLAN NO. 2 OF 1950, 5 U.S.C. (SUPP. IV)
FOLLOWING SEC. 133Z-15.  THESE PROVISIONS ARE IN SUCH BROAD GENERAL
TERMS THAT THEY COULD BE READ AS ALLOWING THE ATTORNEY GENERAL TO
DELEGATE ALL HIS DISCRETIONARY DUTIES.  BUT THE GRAVITY OF A
DISCRETIONARY POWER TO SEIZE PEOPLE AND KEEP THEM IN JAIL WITHOUT A
RIGHT OF BAIL WARNS AGAINST IMPLYING SUCH AN UNLIMITED POWER TO
DELEGATE IT.  IT IS BAD ENOUGH TO READ AN ACT AS VESTING EVEN THE
NATION'S CHIEF PROSECUTOR WITH POWER TO DETERMINE WHAT INDIVIDUALS HE
PROSECUTES SHOULD BE HELD IN JAIL WITHOUT BAIL.  DELEGATING AND
REDELEGATING THIS DANGEROUS POWER TO SUBORDINATES ENTRUSTED WITH DUTIES
LIKE THOSE OF DEPUTY SHERIFFS AND POLICEMEN RAISES SERIOUS PROCEDURAL
DUE PROCESS QUESTIONS.  I AM NOT WILLING TO IMPLY THAT CONGRESS HAS
GRANTED POWER TO MAKE SUCH DELEGATIONS WHICH SO OMINOUSLY THREATEN THE
LIBERTY OF INDIVIDUALS.  CONSEQUENTLY, ASSUMING CONSTITUTIONALITY OF
SEC. 23, I WOULD HOLD THAT IT VESTS POWER IN THE ATTORNEY GENERAL ALONE
TO DECIDE WHETHER A PERSON SHOULD BE DENIED BAIL. 

SECOND.  THE FIFTH AMENDMENT COMMANDS THAT NO PERSON SHALL BE
DEPRIVED OF LIBERTY WITHOUT DUE PROCESS OF LAW.  I THINK THIS PROVISION
HAS BEEN VIOLATED HERE. 

SURELY IT IS NOT CONSISTENT WITH PROCEDURAL DUE PROCESS OF LAW FOR
PROSECUTING ATTORNEYS OF THEIR LAW ENFORCEMENT SUBORDINATES TO MAKE
FINAL DETERMINATIONS AS TO WHETHER PERSONS THEY ACCUSE OF SOMETHING
SHALL REMAIN IN JAIL INDEFINITELY AWAITING A DECISION AS TO THE
TRUTHFULNESS OF THE ACCUSATIONS AGAINST THEM.  IN EFFECT THAT WAS DONE
HERE.  I HAVE ALREADY REFERRED TO THE TRIAL JUDGE'S STATEMENT IN NO. 35
THAT HE WAS NOT GOING TO RELEASE PEOPLE THE ATTORNEY GENERAL DEEMED TO
BE BAD SECURITY RISKS.  MOREOVER, THE IMMIGRATION OFFICIAL'S MERE
BELIEF BASED ON STATEMENTS COMING FROM UNIDENTIFIED PERSONS WAS
ACCEPTED BY BOTH TRIAL JUDGES AS CASTING ON EACH ALLEGED "ALIEN
COMMUNIST" THE BURDEN OF PROVING HE WAS NOT A COMMUNIST BY CLEAR AND
CONVINCING EVIDENCE.  AND THEIR REFUSAL TO INCRIMINATE THEMSELVES BY
DENYING THE IMMIGRATION OFFICER'S SUSPICIONS WAS ACCEPTED AS SUFFICIENT
PROOF TO KEEP THEM BEHIND THE JAIL DOORS.  I THINK THAT CONDEMNING
PEOPLE TO JAIL IS A JOB FOR THE JUDICIARY IN ACCORDANCE WITH PROCEDURAL
"DUE PROCESS OF LAW."  (FN8)  TO FARM OUT THIS RESPONSIBILITY TO THE
POLICE AND PROSECUTING ATTORNEYS IS A JUDICIAL ABDICATION IN WHICH I
WILL HAVE NO PART. 

THIRD.  AS PREVIOUSLY POINTED OUT, THE BASIS OF HOLDING THESE PEOPLE
IN JAIL IS A FEAR THAT THEY MAY INDOCTRINATE PEOPLE WITH COMMUNIST
BELIEFS.  TO PUT PEOPLE IN JAIL FOR FEAR OF THEIR TALK SEEMS TO ME TO
BE AN ABRIDGMENT OF SPEECH IN FLAT VIOLATION OF THE FIRST AMENDMENT.  I
HAVE TO ADMIT, HOWEVER, THAT THIS IS A LOGICAL APPLICATION OF RECENT
CASES WATERING DOWN CONSTITUTIONAL LIBERTY OF SPEECH.  (FN9)  I ALSO
REALIZE THAT MANY BELIEVE THAT COMMUNISTS AND "FELLOW TRAVELERS" SHOULD
NOT BE ACCORDED ANY OF THE FIRST AMENDMENT'S PROTECTIONS.  MY BELIEF IS
THAT WE MUST HAVE FREEDOM OF SPEECH, PRESS AND RELIGION FOR ALL OR WE
MAY EVENTUALLY HAVE IT FOR NONE.  I FURTHER BELIEVE THAT THE FIRST
AMENDMENT GRANTS AN ABSOLUTE RIGHT TO BELIEVE IN ANY GOVERNMENTAL
SYSTEM, DISCUSS ALL GOVERNMENTAL AFFAIRS, AND ARGUE FOR DESIRED CHANGES
IN THE EXISTING ORDER.  THIS FREEDOM IS TOO DANGEROUS FOR BAD,
TYRANNICAL GOVERNMENTS TO PERMIT.  BUT THOSE WHO WROTE AND ADOPTED OUR
FIRST AMENDMENT WEIGHED THOSE DANGERS AGAINST THE DANGERS OF CENSORSHIP
AND DELIBERATELY CHOSE THE FIRST AMENDMENT'S UNEQUIVOCAL COMMAND THAT
FREEDOM OF ASSEMBLY, PETITION, SPEECH AND PRESS SHALL NOT BE ABRIDGED. 
I HAPPED TO BELIEVE THIS WAS A WISE CHOICE AND THAT OUR FREE WAY OF
LIFE ENLISTS SUCH RESPECT AND LOVE THAT OUR NATION CANNOT BE IMPERILED
BY MERE TALK.  THIS BELIEF OF MINE MAY AND I SUPPOSE DOES INFLUENCE ME
TO PROTEST WHENEVER I THINK I SEE EVEN SLIGHT ENCROACHMENTS ON FIRST
AMENDMENT LIBERTIES.  BUT THE ENCROACHMENT HERE IS NOT SMALL.  TRUE IT
IS MAINLY THOSE ALLEGED TO BE PRESENT OR PAST "COMMUNISTS" WHO ARE NOW
BEING JAILED FOR THEIR BELIEFS AND EXPRESSIONS.  BUT WE CANNOT BE SURE
MORE VICTIMS WILL NOT BE OFFERED UP LATER IF THE FIRST AMENDMENT MEANS
NO MORE THAN ITS ENEMIES OR EVEN SOME OF ITS FRIENDS BELIEVE IT DOES. 

FOURTH.  I THINK SEC. 23 AS CONSTRUED AND AS HERE APPLIED VIOLATES
THE COMMAND OF THE EIGHTH AMENDMENT THAT "EXCESSIVE BAIL SHALL NOT BE
REQUIRED  ...  ."  UNDER ONE OF THE GOVERNMENT'S CONTENTIONS, WHICH THE
COURT APPARENTLY ADOPTS, THE EIGHTH AMENDMENT'S BAN ON EXCESSIVE BAIL
MEANS JUST ABOUT NOTHING.  THAT CONTENTION IS THAT CONGRESS HAS POWER,
DESPITE THE AMENDMENT, TO DETERMINE "WHETHER OR NOT BAIL MAY BE
GRANTED, OR MUST BE GRANTED, AND THE CONSTITUTION THEN FORBIDS THE
EXACTION OF EXCESSIVE BAIL  ...  ."  UNDER THIS CONTENTION, THE EIGHTH
AMENDMENT IS A LIMITATION UPON JUDGES ONLY, FOR WHILE A JUDGE CANNOT
CONSTITUTIONALLY FIX EXCESSIVE BAIL, CONGRESS CAN DIRECT THAT PEOPLE BE
HELD IN JAIL WITHOUT ANY RIGHT TO BAIL AT ALL.  STATED STILL ANOTHER
WAY, THE AMENDMENT DOES NO MORE THAN PROTECT A RIGHT TO BAIL WHICH
CONGRESS CAN GRANT AND WHICH CONGRESS CAN TAKE AWAY.  THE AMENDMENT IS
THUS REDUCED BELOW THE LEVEL OF A PIOUS ADMONITION.  MAYBE THE LITERAL
LANGUAGE OF THE FRAMERS LENDS ITSELF TO THIS WEIRD, DEVITALIZING
INTERPRETATION WHEN SCRUTINIZED WITH A HOSTILE EYE.  BUT AT LEAST UNTIL
RECENTLY, IT HAS BEEN THE JUDICIAL PRACTICE TO GIVE A BROAD, LIBERAL
INTERPRETATION TO THOSE PROVISIONS OF THE BILL OF RIGHTS OBVIOUSLY
DESIGNED TO PROTECT THE INDIVIDUAL FROM GOVERNMENTAL OPPRESSION.  I
WOULD FOLLOW THAT PRACTICE HERE.  THE COURT REFUSES TO DO SO BECAUSE
(1) THE ENGLISH BILL OF RIGHTS "HAS NEVER BEEN THOUGHT TO ACCORD A
RIGHT TO BAIL IN ALL CASES  ...  " AND (2) "IN CRIMINAL CASES BAIL IS
NOT COMPULSORY WHERE THE PUNISHMENT MAY BE DEATH."  AS TO (1):  THE
EIGHTH AMENDMENT IS IN THE AMERICAN BILL OF RIGHTS OF 1789, NOT THE
ENGLISH BILL OF RIGHTS OF 1689.  AND IT IS WELL KNOWN THAT OUR BILL OF
RIGHTS WAS WRITTEN AND ADOPTED TO GUARANTEE AMERICANS GREATER FREEDOM
THAN HAD BEEN ENJOYED BY THEIR ANCESTORS WHO HAD BEEN DRIVEN FROM
EUROPE BY PERSECUTION.  SEE BRIDGES V. CALIFORNIA, 314 U.S. 252, 264
265.  AS TO (2):  IT IS TRUE BAIL HAS FREQUENTLY BEEN DENIED IN THIS
COUNTRY "WHEN PUNISHMENT MAY BE DEATH."  I FAIL TO SEE WHERE THE
COURT'S ANALOGY BETWEEN DEPORTATION AND THE DEATH PENALTY ADVANCES ITS
ARGUMENT UNLESS IT IS ALSO ANALOGIZING THE OFFENSE OF INDOCTRINATING
TALK TO THE CRIME OF FIRST DEGREE MURDER. 

ANOTHER GOVERNMENTAL CONTENTION IS THIS:  "THE BAIL PROVISIONS OF THE
EIGHTH AMENDMENT AND OF THE STATUTES RELATING THERETO HAVE ALWAYS BEEN
CONSIDERED AS APPLICABLE ONLY TO CRIMINAL PROCEEDINGS.  SINCE
DEPORTATION PROCEEDINGS ARE NOT CRIMINAL IN CHARACTER, THE EIGHTH
AMENDMENT HAS NO APPLICATION."  I REJECT THE CONTENTION THAT THIS
CONSTITUTIONAL RIGHT TO BAIL CAN BE DENIED A MAN IN JAIL BY THE SIMPLE
DEVICE OF PROVIDING A "NOT CRIMINAL" LABEL FOR THE TECHNIQUES USED TO
INCARCERATE.  IMPRISONMENT AWAITING DETERMINATION OF WHETHER THAT
IMPRISONMENT IS JUSTIFIABLE HAS PRECISELY THE SAME EVIL CONSEQUENCES TO
AN INDIVIDUAL WHATEVER LEGALISTIC LABEL IS USED TO DESCRIBE HIS
PLIGHT.  PRIOR TO THIS AMENDMENT'S ADOPTION, HISTORY HAD BEEN FILLED
WITH INSTANCES WHERE INDIVIDUALS HAD BEEN IMPRISONED AND HELD FOR WANT
OF BAIL ON CHARGES THAT COULD NOT BE SUBSTANTIATED.  OFFICIAL MALICE
HAD TOO FREQUENTLY BEEN THE CAUSE OF IMPRISONMENT.  THE PLAN PURPOSE OF
OUR BAIL AMENDMENT WAS TO MAKE IT IMPOSSIBLE FOR ANY AGENCY OF
GOVERNMENT, EVEN THE CONGRESS, TO AUTHORIZE KEEPING PEOPLE IMPRISONED A
MOMENT LONGER THAN WAS NECESSARY TO ASSURE THEIR ATTENDANCE TO ANSWER
WHATEVER LEGAL BURDEN OR OBLIGATION MIGHT THEREAFTER BE VALIDLY IMPOSED
UPON THEM.  IN EARLIER DAYS OF THIS COUNTRY THERE WERE FOND HOPES THAT
THE BAIL PROVISION WAS UNNECESSARY, THAT NO BRANCH OF OUR GOVERNMENT
WOULD EVER WANT TO DEPRIVE ANY PERSON OF BAIL.  ON THIS SUBJECT MR.
JUSTICE STORY SAID, "THE PROVISION WOULD SEEM TO BE WHOLLY UNNECESSARY
IN A FREE GOVERNMENT, SINCE IT IS SCARCELY POSSIBLE THAT ANY DEPARTMENT
OF SUCH A GOVERNMENT SHOULD AUTHORIZE OR JUSTIFY SUCH ATROCIOUS
CONDUCT."  STORY ON CONSTITUTIONAL LAW, 5TH ED., VOL. 2, P. 650. 
PERHAPS THE WORD "ATROCIOUS" IS TOO STRONG.  I CAN ONLY SAY THAT I
REGRET, DEEPLY REGRET, THAT THE COURT NOW ADDS THE RIGHT TO BAIL TO THE
LIST OF OTHER BILL OF RIGHTS GUARANTEES THAT HAVE RECENTLY BEEN
WEAKENED TO EXPAND GOVERNMENTAL POWERS AT THE EXPENSE OF INDIVIDUAL
FREEDOM. 

I AM FOR REVERSING IN NO. 35 AND AFFIRMING IN NO. 136. 

FN1  "EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR EXCESSIVE FINES
IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED."  U.S. CONST.,
AMEND. VIII. 

FN2  "CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING THE FREEDOM OF
SPEECH, OR OF THE PRESS; ...  ."  U.S. CONST., AMEND. I. 

FN3  "NO PERSON  ...  SHALL BE  ...  DEPRIVED OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW; ...  ."  U.S. CONST., AMEND. V. 

FN4  96 CONG. REC. 10449; H.R. REP. NO. 1192, 81ST CONG., 1ST SESS.,
PP. 7,9, 10. 

FN5  AND THE DISTRICT JUDGE IN NO. 35 SAID "WHEN THERE IS A CLAIM,
AND I DON'T KNOW WHETHER IT IS TRUE OR NOT  ...  THAT THESE PEOPLE ARE
SECURITY RISKS AND THAT THEIR RELEASE IS DANGEROUS TO THE SECURITY OF
THE UNITED STATES, UNTIL THAT IS EITHER DISPROVED OR PROVED I AM NOT
GOING TO RELEASE THEM.  MY FIRST NOTE IN THAT RESPECT IS FOR THE
SECURITY OF THE COUNTRY.  WE HAVE HAD 42,000 CASUALTIES ALREADY." 

FN6  IN THIS STATE OF THE RECORD AND PARTICULARLY IN VIEW OF THE
SOLICITOR GENERAL'S CONTRARY ADMISSION, I AM AT A LOSS TO UNDERSTAND
NOTE 35 IN THE COURT'S OPINION.  IT IS THERE INTIMATED THAT THESE
ALIENS MIGHT FLEE AND BE UNAVAILABLE FOR DEPORTATION.  I CANNOT BELIEVE
THAT THE COURT IS RESTING, OR WOULD REST, ITS APPROVAL OF DENIAL OF
BAIL ON A GROUND WHICH EVEN THE SOLICITOR GENERAL HAD NOT DEEMED
SUPPORTABLE BY THE RECORD. 

FN7  "ANONYMOUS INFORMATIONS OUGHT NOT TO BE RECEIVED IN ANY SORT OF
PROSECUTION.  IT IS INTRODUCING A VERY DANGEROUS PRECEDENT, AND IS
QUITE FOREIGN TO THE SPIRIT OF OUR AGE."  WRITTEN NEAR 100 .A.D BY
EMPEROR TRAJAN TO PLINY THE YOUNGER IN RESPONSE TO PLINY'S INTERESTING
REPORT OF HIS PROSECUTION OF CHRISTIANS.  9 HARVARD CLASSICS, 428. 
PLINY WAS "IN GREAT DOUBT" EVEN THEN AS TO "WHETHER THE VERY PROFESSION
OF CHRISTIANITY, UNATTENDED WITH ANY CRIMINAL ACT, OR ONLY THE CRIMES
THEMSELVES INHERENT IN THE PROFESSION ARE PUNISHABLE  ...  ."  SUPRA,
426.  "IF THEY (INFORMERS AGAINST CHRISTIANS) SUCCEEDED IN THEIR
PROSECUTION, THEY WERE EXPOSED TO THE RESENTMENT OF A CONSIDERABLE AND
ACTIVE PARTY, TO THE CENSURE OF THE MORE LIBERAL PORTION OF MANKIND,
AND TO THE IGNOMINY WHICH IN EVERY AGE AND COUNTRY, HAS ATTENDED THE
CHARACTER OF AN INFORMER.  IF, ON THE CONTRARY, THEY FAILED IN THEIR
PROOFS, THEY INCURRED THE SEVERE, AND PERHAPS CAPITAL, PENALTY WHICH,
ACCORDING TO A LAW PUBLISHED BY THE EMPEROR HADRIAN, WAS INFLICTED ON
THOSE WHO FALSELY ATTRIBUTED TO THEIR FELLOW-CITIZENS THE CRIME OF
CHRISTIANITY."  2 GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE
ROMAN EMPIRE (OXFORD UNIV.  PRESS), 107, 108. 

FN8  SEE MOZOROSKY V. HURLBURT, 106 ORE.  274, 198 P. 556, 15 A.L.R.
1076 AND NOTE PP. 1079-1083. 

FN9  SEE, E.G., AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382;
DENNIS V. UNITED STATES, 341 U.S. 494, FEINER V. NEW YORK, 340 U.S.
315. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

IF THE ATTORNEY GENERAL, AFTER THE INTERNAL SECURITY ACT, HAD MADE A
GENERAL RULING THAT THEREAFTER HE WOULD NOT ALLOW BAIL TO ANY ALIEN
AGAINST WHOM DEPORTATION PROCEEDINGS WERE STARTED AND WHO WAS THEM A
MEMBER OF THE COMMUNIST PARTY - AN UNDISCRIMINATING, UNINDIVIDUALIZED
CLASS DETERMINATION - IT WOULD DISREGARD THE CLEAR DIRECTION OF
CONGRESS FOR THIS COURT NOT TO HOLD THAT THE ATTORNEY GENERAL HAD
EXCEEDED THE LIMITS OF HIS DISCRETION.  IT WOULD WILFULLY DISREGARD THE
ADJUDICATIONS ON BAIL IN DEPORTATION CASES WHICH PRECEDED THE ACT AND
THE UNAMBIGUOUS LEGISLATIVE HISTORY OF THE LAW BASED UPON THIS JUDICIAL
HISTORY.  CONGRESS UNEQUIVOCALLY CHOSE NOT TO GIVE NONREVIEWABLE
DISCRETIONARY POWER TO THE ATTORNEY GENERAL TO DENY BAIL.  IN SUBSTANCE
THOUGH NOT FORMALLY HE HAS MADE SUCH A GENERAL RULING.  THE RECORDS
BEFORE US DISCLOSE THAT SINCE THE INTERNAL SECURITY ACT THE ATTORNEY
GENERAL HAS IN FACT FOLLOWED THE GENERAL PRACTICE OF DENYING BAIL TO
ALL ACTIVE COMMUNISTS.  SUCH BLANKET EXERCISE OF THE POWER GRANTED HIM
BY THE ACT CALLS FOR REVIEW AND CANNOT STAND.    THE CONTROLLING
QUESTIONS IN THIS CASE ARE:  WHAT STANDARDS OF DISCRETION DOES THE
INTERNAL SECURITY ACT OF 1950 (FN1) IMPOSE UPON THE ATTORNEY GENERAL IN
GRANTING OR DENYING BAIL TO PERSONS ARRESTED FOR DEPORTATION
PROCEEDINGS; AND HAS THE ATTORNEY GENERAL HERE OBSERVED THOSE
STANDARDS?  THE GOVERNMENT CONCEDES THAT CONGRESS MADE REVIEWABLE THE
DISCRETION OF THE ATTORNEY GENERAL ON THE BAIL QUESTION.  THIS
SUBJECTION OF THE ATTORNEY GENERAL'S ACTION TO JUDICIAL SCRUTINY IS NOT
TO BE FORMALLY OR LIGHTLY EXERCISED.  THE BILL WHICH ULTIMATELY BECAME
SEC. 23 OF THE INTERNAL SECURITY ACT WAS INITIALLY PASSED BY THE HOUSE
WITH A PROVISION MAKING ABSOLUTE AND UNREVIEWABLE THE ATTORNEY
GENERAL'S ACTION.  (FN2)  THE BILL AS ENACTED, HOWEVER, OMITTED THE
FINALITY CLAUSE; THE ATTORNEY GENERAL'S AUTHORITY WAS THUS DEFINED:
"PENDING FINAL DETERMINATION OF THE DEPORTABILITY OF ANY ALIEN  ...  HE
MAY, IN THE DISCRETION OF THE ATTORNEY GENERAL (1) BE CONTINUED IN
CUSTODY; OR (2) BE RELEASED UNDER BOND IN THE AMOUNT OF NOT LESS THAN
$500, WITH SECURITY APPROVED BY THE ATTORNEY GENERAL; OR (3) BE
RELEASED ON CONDITIONAL PAROLE."  (FN3)  BEFORE THE PASSAGE OF THE ACT
CONGRESS HAD BEFORE IT CONFLICTING VIEWS OF COURTS OF APPEALS:
ACCORDING TO PRENTIS V. MANOOGIAN, 16 F.2D 422 (C.A. 6TH CIR.), BAIL
WAS A MATTER OF THE ALIEN'S RIGHT; THE SECOND CIRCUIT RULED THAT IT WAS
A MATTER WITHIN THE ATTORNEY GENERAL'S DISCRETION SUBJECT TO JUDICIAL
REVIEW.  UNITED STATES EX REL. POTASH V. DISTRICT DIRECTOR, 169 F.2D
747 (C.A.2D CIR.).  (FN4)  CONGRESS CHOSE THE LATTER VIEW.  IT DESERVES
EMPHASIS THAT IT WAS DISCRETION THAT WAS GIVEN THE ATTORNEY GENERAL,
NOT POWER TO DECIDE ARBITRARILY.  (FN5) 

IN GRANTING THE ATTORNEY GENERAL DISCRETION SUBJECT TO JUDICIAL
REVIEW, CONGRESS LEGISLATED AGAINST A HISTORICAL BACKGROUND WHICH GIVES
MEANING TO BAIL PROVISIONS.  ONLY THE OTHER DAY THIS COURT RESTATED THE
CONCEPT OF BAIL TRADITIONAL IN AMERICAN THOUGHT AND REFLECTED IN THE
CONSTITUTION: 

"THIS TRADITIONAL RIGHT TO FREEDOM BEFORE CONVICTION (OR BEFORE ORDER
FOR DEPORTATION) PERMITS THE UNHAMPERED PREPARATION OF A DEFENSE, AND
SERVES TO PREVENT THE INFLICTION OF PUNISHMENT PRIOR TO CONVICTION  ...
.  SINCE THE FUNCTION OF BAIL IS LIMITED, THE FIXING OF BAIL FOR ANY
INDIVIDUAL DEFENDANT MUST BE BASED UPON STANDARDS RELEVANT TO THE
PURPOSE OF ASSURING THE PRESENCE OF THAT DEFENDANT  ...  .  TO INFER
FROM THE FACT OF INDICTMENT (OR WARRANT FOR DEPORTATION) ALONE A NEED
FOR BAIL IN AN UNUSUALLY HIGH AMOUNT IS AN ARBITRARY ACT."  STACK V.
BOYLE, 342 U.S. 1, 4, 5, 6. 

"THE PRACTICE OF ADMISSION TO BAIL, AS IT HAS EVOLVED IN ANGLO
AMERICAN LAW, IS NOT A DEVICE FOR KEEPING PERSONS IN JAIL UPON MERE
ACCUSATION UNTIL IT IS FOUND CONVENIENT TO GIVE THEM A TRIAL.  ON THE
CONTRARY, THE SPIRIT OF THE PROCEDURE IS TO ENABLE THEM TO STAY OUT OF
JAIL UNTIL A TRIAL HAS FOUND THEM GUILTY  ...  .  EACH DEFENDANT STANDS
BEFORE THE BAR OF JUSTICE AS AN INDIVIDUAL  ...  . EACH ACCUSED IS
ENTITLED TO ANY BENEFITS DUE TO HIS GOOD RECORD, AND MISDEEDS OR A BAD
RECORD SHOULD PREJUDICE ONLY THOSE WHO ARE GUILTY OF THEM."  ID., AT 7,
8, 9 (CONCURRING OPINION). 

THIS HISTORICAL MEANING OF "BAIL," FAMILIAR EVEN TO LAYMEN, MUST
INFUSE OUR INTERPRETATION OF THE WORDS OF A CONGRESS OF WHOM, IN FACT,
A MAJORITY WERE LAWYERS.  WHEN CONGRESS PROVIDED FOR BAIL, WITHIN THE
ATTORNEY GENERAL'S DISCRETION, FOR PERSONS ARRESTED FOR DEPORTATION
PROCEEDINGS, IT WAS EXTENDING TO RESIDENT ALIENS STILL LAWFULLY IN OUR
MIDST THE SAME PRIVILEGES THAT ARE GRANTED AS A MATTER OF COURSE TO
DANGEROUS CRIMINALS.  THE FACTORS RELEVANT TO THE EXERCISE OF
DISCRETION ARE FACTORS THAT PERTAIN TO EACH INDIVIDUAL AS AN
INDIVIDUAL.  "DISCRETION IS ONLY TO BE RESPECTED WHEN IT IS CONSCIOUS
OF THE TRADITIONS WHICH SURROUND IT AND OF THE LIMITS WHICH AN INFORMED
CONSCIENCE SETS TO ITS EXERCISE."  (FN6) 

IF THESE ALIENS, INSTEAD OF AWAITING DEPORTATION PROCEEDINGS, WERE
HELD FOR TRIAL UNDER A SMITH ACT INDICTMENT, THEY COULD NOT BE DENIED
BAIL MERELY BECAUSE OF THE INDICTMENT.  STACK V. BOYLE, SUPRA.
MEMBERSHIP IN THE COMMUNIST PARTY - THE CHARGE WHICH IS THE FOUNDATION
FOR THE DEPORTATION PROCEEDINGS - IS SURELY NOT AS GREAT A DANGER AS A
LEADING SHARE IN A CONSPIRACY TO ADVOCATE THE OVERTHROW OF THE
GOVERNMENT BY FORCE, WHICH WAS THE ESSENCE OF THE INDICTMENT IN DENNIS
V. UNITED STATES, 341 U.S. 494.  AND THE OPPORTUNITY FOR "THE
UNHAMPERED PREPARATION OF A DEFENSE" IS QUITE AS IMPORTANT TO THE ALIEN
ARRESTED FOR DEPORTATION PROCEEDINGS AS IT IS TO THE SMITH ACT
DEFENDANT.  WE WOULD HESITATE TO IMPUTE TO CONGRESS, IN THE ABSENCE OF
SOME MORE EXPLICIT COMMAND, AN INTENT TO MAKE BAIL MORE READILY
AVAILABLE TO THOSE HELD ON A SERIOUS CRIMINAL CHARGE THAN TO THOSE
AWAITING PROCEEDINGS TO DETERMINE THE QUESTION OF DEPORTABILITY. 
CONGRESS MADE NO SUCH DISTINCTION.  INSTEAD, IT CAST THE ATTORNEY
GENERAL'S AUTHORITY IN TERMS DESCRIPTIVE OF THE CUSTOMARY POWER OF
COMMISSIONERS OR DISTRICT JUDGES IN ADMITTING TO BAIL. 

THE FACTORS STATED BY THE SECOND CIRCUIT IN THE POTASH CASE, SUPRA,
AT 751, WHICH GUIDED THE ENACTMENT, ARE PRESUMABLY THE STANDARDS WHICH
CONGRESS EXPECTED TO BE OBSERVED:  "THE DISCRETION OF THE ATTORNEY
GENERAL  ...  IS TO BE REASONABLY EXERCISED UPON A CONSIDERATION OF
SUCH FACTORS, AMONG OTHERS, AS THE PROBABILITY OF THE ALIEN BEING FOUND
DEPORTABLE, THE SERIOUSNESS OF THE CHARGE AGAINST HIM, IF PROVED, THE
DANGER TO THE PUBLIC SAFETY OF HIS PRESENCE WITHIN THE COMMUNITY, AND
THE ALIEN'S AVAILABILITY FOR SUBSEQUENT PROCEEDINGS IF ENLARGED ON
BAIL." 

CONGRESS THUS MADE PROVISION FOR A FAIR ASSURANCE OF EACH ALIEN'S
AVAILABILITY IN THE EVENT HE IS EVENTUALLY ORDERED DEPORTED.  THERE IS,
HOWEVER, NOT THE SLIGHTEST INDICATION IN THE GOVERNMENT'S RETURNS OR IN
THE RECORDS BEFORE US THAT EACH PETITIONER'S TIES TO FAMILY AND
COMMUNITY AND EACH ONE'S BEHAVIOR UNDER AN EARLIER WARRANT AGAINST HIM
DO NOT ASSURE HIS PRESENCE THROUGHOUT THE DEPORTATION PROCEEDINGS AND
THEREAFTER.  THE RECORDS AFFIRMATIVELY INDICATE THE CONTRARY. 
MOREOVER, IN DEPORTATION CASES - AS COMPARED, FOR EXAMPLE, WITH
PROSECUTIONS UNDER THE SMITH ACT - THE CONSIDERATION THAT THE
INDIVIDUALS CONCERNED MAY DEPART FROM THE COUNTRY IS MINIMIZED IN
SIGNIFICANCE, FIRST, BECAUSE COMPULSORY DEPARTURE FROM THE UNITED
STATES IS JUST WHAT THEY ARE CONTESTING, AND SECONDLY, IF THEY DO
DEPART, THE PURPOSE OF THE DEPORTATION PROCEEDINGS IS REALIZED. 

IT WOULD BE UNFAIR TO CONGRESS TO DENY THAT IT FOLLOWED THE
TRADITIONAL CONCEPT OF BAIL BY MAKING "THE DANGER TO THE PUBLIC SAFETY
OF HIS PRESENCE WITHIN THE COMMUNITY" A CRITERION FOR BAILABILITY.  NO
LESS MUST IT BE PRESUMED THAT CONGRESS REQUIRED THAT EACH CRITERION
SHOULD BE APPLIED IN THE TRADITIONAL MANNER, THAT IS, BY INDIVIDUALIZED
APPLICATION TO EACH ALIEN.  IN EACH CASE, THE ALIEN'S ANTICIPATED
PERSONAL CONDUCT - AND THAT ALONE - MUST BE CONSIDERED.  ALSO, HOW
EXPEDITIOUSLY EACH DEPORTATION PROCEEDING CAN BE CONCLUDED, AND
THEREFORE HOW LONG THE BAIL IN EACH CASE NEED BE IN EFFECT, ARE
RELEVANT CONSIDERATIONS. 

BUT IT IS ARGUED THAT, SINCE AN INTRODUCTORY SECTION OF THE INTERNAL
SECURITY ACT MAKES A "LEGISLATIVE FINDING" OF THE THREAT REPRESENTED BY
THE PARTY, (FN7) CONGRESS INTENDED MEMBERSHIP IN THE COMMUNIST PARTY
ALONE TO SERVE AS A REASONABLE BASIS FOR BELIEVING INDIVIDUAL ALIENS
TOO DANGEROUS TO LEAVE AT LARGE.  SUCH AN INTERPRETATION RENDERS
MEANINGLESS THE DISCRETION GRANTED THE ATTORNEY GENERAL WHEREVER THE
DEPORTATION CHARGE IS MEMBERSHIP IN THE COMMUNIST PARTY.  THE ARGUMENT
MEANS THAT HE MAY EXERCISE DISCRETION AS TO BAIL ONLY TO DENY BAIL. 
CONGRESS DID NOT WRITE SUCH A HOBSON'S CHOICE INTO LAW.  TRUE, THE BAIL
PROVISIONS APPLY TO DEPORTATION PROCEEDINGS BROUGHT ON OTHER GROUNDS. 
HOWEVER, THE ABSORBING CONCERN OF CONGRESS IN THE INTERNAL SECURITY ACT
WAS WITH THE PROBLEM OF THE COMMUNIST PARTY; THAT ACT FOR THE FIRST
TIME EXPLICITLY MADE MEMBERSHIP IN THE COMMUNIST PARTY A GROUND FOR
DEPORTATION.  (FN8)  IT PUTS CONGRESS IN A STULTIFYING POSITION TO
SUGGEST THAT IT GAVE WITH ONE HAND ONLY TO TAKE AWAY WITH THE OTHER. 

IN THESE CASES THE ATTORNEY GENERAL HAS NOT EXERCISED HIS DISCRETION
BY APPLYING THE STANDARDS REQUIRED OF HIM.  HE EVIDENTLY THOUGHT
HIMSELF UNDER COMPULSION OF LAW AND MADE AN ABSTRACT, CLASS
DETERMINATION, NOT AN INDIVIDUALIZED JUDGMENT.  WHEN THE FIVE ALIENS
WERE ARRESTED ORIGINALLY (ONE AS LATE AS JUNE, 1950), ALL WERE RELEASED
ON BAIL, RANGING FROM $5,000 FOR ONE TO $1,000 FOR ANOTHER; THREE WERE
RELEASED ON $2,000 BAIL.  MUCH IS MADE OF THE FACT THAT THE ENACTMENT
OF THE INTERNAL SECURITY ACT ON SEPTEMBER 22,1950, INTERVENED BETWEEN
THE ORIGINAL GRANT OF BAIL AND THE SUBSEQUENT REARREST AND DETENTION OF
THE ALIENS.  THE ONLY CHANGE IN THAT ACT RELEVANT TO THESE DEPORTATION
PROCEEDINGS WAS THE PROVISION MAKING MEMBERSHIP IN THE COMMUNIST PARTY
SPECIFICALLY A BASIS FOR DEPORTATION.  (FN9)  NEW WARRANTS CHARGING
MEMBERSHIP IN THE COMMUNIST PARTY AT SOME TIME AFTER ENTRY WERE SERVED
ON THE REARRESTED ALIENS IN LOS ANGELES, THOUGH NOT ON ZYDOK IN
DETROIT.  THE IMMIGRATION AUTHORITIES WERE BY THE ACT RELIEVED OF
PROVING - IN ORDER TO MAKE A PRIMA FACIE CASE - THAT THE COMMUNIST
PARTY IS AN "ORGANIZATION  ...  THAT BELIEVES IN, ADVISES, ADVOCATES,
OR TEACHES  ...  THE OVERTHROW BY FORCE OR VIOLENCE OF THE
GOVERNMENT."  (FN10)  BUT IN THE CIRCUMSTANCES OF TODAY A LEGISLATIVE
DEFINITION OF THE COMMUNIST PARTY AS AN ORGANIZATION ADVOCATING VIOLENT
OVERTHROW OF GOVERNMENT MADE LITTLE DIFFERENCE IN THE REQUIRED PROOF. 
(FN11)  AT ANY RATE, A COMPLETE ANSWER IS THAT NOWHERE - EITHER IN HIS
RETURNS TO THE WRITS OF HABEAS CORPUS OR ELSEWHERE - HAS THE ATTORNEY
GENERAL MADE ANY ASSERTION THAT THE INTERNAL SECURITY ACT EASED THE
PROOF OF DEPORTABILITY, INDICATING BY HIS SILENCE THAT SUCH A FACTOR
DID NOT INFLUENCE HIS JUDGMENT.  (FN12) THE RETURNS IN THE LOS ANGELES
CASES SUPPORTED THE DENIAL OF BAIL SOLELY BY THE STATEMENT, "SAID FACTS
CAUSE THE SAID ACTING COMMISSIONER TO BELIEVE THAT IF THE SAID
PETITIONERS) WERE ENLARGED ON BAIL THEY WOULD ENGAGE IN ACTIVITIES
WHICH WOULD BE PREJUDICIAL TO THE PUBLIC INTEREST, AND WOULD ENDANGER
THE WELFARE AND SAFETY OF THE UNITED STATES."  THE RETURN IN ZYDOK'S
CASE STATED NO REASONS FOR THE ATTORNEY GENERAL'S DECISION.  THE ONLY
EVIDENCE AT THE HEARINGS WAS ALSO DIRECTED SOLELY TO THE COMMUNIST
ACTIVITIES OF THE ALIENS. 

THE INSUBSTANTIALITY OF THE EVIDENCE FOR SHOWING ANY DANGER IN
FREEING EACH INDIVIDUAL ALIEN ON BAIL RAISES AMPLE DOUBT WHETHER THE
ATTORNEY GENERAL EXERCISED A DISCRETION AS INSTRUCTED BY STATUTE.  IN
ZYDOK'S CASE THE CLAIM IS THAT HE HAD BEEN A MEMBER OF THE COMMUNIST
PARTY AND FINANCIAL SECRETARY OF A HAMTRAMCK, MICHIGAN, SECTION IN
1949, A YEAR BEFORE HIS REARREST AND DENIAL OF BAIL ON OCTOBER 23,
1950.  FROM ZYDOK'S FAILURE TO DENY PRESENT MEMBERSHIP DURING HIS
TESTIMONY, THE DISTRICT COURT DREW THE CONCLUSION THAT HE WAS
"KNOWINGLY AND WILFULLY PARTICIPATING IN THE COMMUNIST MOVEMENT."  THIS
WAS CLEARLY A VIOLATION OF ZYDOK'S PRIVILEGE AGAINST SELF
INCRIMINATION, WHICH HE MANY TIMES CLAIMED.  (FN13)  BUT ASSUMING THAT
THE ATTORNEY GENERAL HAD EVIDENCE BEFORE HIM THAT ZYDOK WAS AT PRESENT
A MEMBER OF THE COMMUNIST PARTY, THAT ALONE IS INSUFFICIENT TO SHOW
DANGER IN FREEING HIM ON BAIL DURING THE DEPORTATION PROCEEDING.  TO
DENY BAIL, THE ATTORNEY GENERAL SHOULD HAVE A REASONABLE BASIS FOR
BELIEVING THAT THE CIRCUMSTANCES ATTENDING ZYDOK PRESENT TOO HAZARDOUS
A RISK IN LEAVING HIM AT LARGE. 

THERE IS ALSO NO EVIDENCE ON THE ACTIVITIES OF THE OTHER FOUR ALIENS
THAT IS MORE RECENT THAN 1949 - A YEAR BEFORE THE ISSUANCE OF THE
RELEVANT WARRANTS FOR DEPORTATION AND THE DENIALS OF BAIL HERE UNDER
REVIEW - WITH THE EXCEPTION OF A NEWSPAPER ARTICLE BY CARLSON PUBLISHED
IN LATE 1950.  IN FACT, IN THE CASE OF CARLISLE AND STEVENSON THE
GOVERNMENT HAD NO EVIDENCE OF ACTIVITY OR MEMBERSHIP IN THE COMMUNIST
PARTY MORE RECENT THAN THE 1930'S.  SINCE ALL THESE ALIENS WHEN
PREVIOUSLY ARRESTED WERE RELEASED ON BAIL, WE CANNOT ESCAPE THE
CONCLUSION THAT THE ATTORNEY GENERAL AFTER THE ENACTMENT OF THE
INTERNAL SECURITY ACT DID NOT DENY BAIL FROM AN INDIVIDUALIZED ESTIMATE
OF "THE DANGER TO THE PUBLIC SAFETY OF EACH PERSON'S PRESENCE WITHIN
THE COMMUNITY."  (FN14) 

WE ARE CONFIRMED IN THIS CONCLUSION BY THE ATTORNEY GENERAL'S
PRACTICE.  FOR WE ARE ADVISED BY THE SOLICITOR GENERAL THAT IT HAS BEEN
THE GOVERNMENT'S POLICY SINCE THE INTERNAL SECURITY ACT TO TERMINATE
BAIL FOR ALL ALIENS AWAITING DEPORTATION PROCEEDINGS WHOM IT DEEMS TO
BE PRESENT ACTIVE COMMUNISTS, BARRING ONLY THOSE FOR WHOM SPECIAL
CIRCUMSTANCES OF PHYSICAL CONDITION OR FAMILY SITUATION COMPEL AN
EXCEPTION.  THE ORDINARY CONSIDERATIONS OF AVAILABILITY TO RESPOND TO
THE FINAL JUDGMENT OF THE COURTS HAVE APPARENTLY BEEN RULED OUT BY THE
ATTORNEY GENERAL SINCE THE ENACTMENT OF THE INTERNAL SECURITY ACT.  ALL
THOSE WHOM THE GOVERNMENT BELIEVES TO BE ACTIVE COMMUNISTS ARE
CONSIDERED UNBAILABLE WITHOUT INDIVIDUALIZED CONSIDERATION OF RISH FROM
THEIR CONTINUED FREEDOM.  IT MUST THEREFORE BE INFERRED THAT THE
ATTORNEY GENERAL ACTED ON THE ASSUMPTION THAT, BECAUSE HE WAS CONVINCED
THAT THE ALIENS HERE WERE PRESENT COMMUNIST PARTY MEMBERS, THEY WERE
NOT BAILABLE.  THESE PERSONS SHOULD HAVE THE BENEFIT OF AN EXERCISE OF
DISCRETION BY THE ATTORNEY GENERAL, FREED FROM ANY CONCEPTION THAT
CONGRESS HAD MADE THEM IN EFFECT UNBAILABLE.  WE THINK THAT THE
CALIFORNIA CASE SHOULD BE RETURNED TO THE DISTRICT COURT FOR DISCHARGE
OF THE FOUR PERSONS DETAINED UNLESS THE ATTORNEY GENERAL WITHIN A
REASONABLE TIME MAKES A NEW DETERMINATION ON THE BAIL QUESTION USING
THE STANDARDS HERE OUTLINED.  AND IF ZYDOK IS REARRESTED UNDER A NEW
WARRANT, THE ATTORNEY GENERAL WILL HAVE A FRESH OPPORTUNITY TO EXERCISE
HIS DISCRETION IN SETTING BAIL.    FN1  PUB. L. NO. 831, 81ST CONG., 2D
SESS., 64 STAT. 987.  FN2  H.R. 10, 81ST CONG., 1ST SESS. READ IN
RELEVANT PART THUS:  "(G) NO COURT SHALL HAVE JURISDICTION TO RELEASE
ON BOND OR OTHERWISE ANY ALIEN DETAINED UNDER ANY PROVISION OF LAW
RELATING TO THE EXCLUSION OR EXPULSION OF ALIENS AT ANY TIME PRIOR TO A
DECISION OF COURT IN HIS FAVOR WHICH IS NOT SUBJECT TO FURTHER JUDICIAL
REVIEWS."  SEE 96 CONG.  REC. 10448-10460.  H.R. REP. NO. 1192, 81ST
CONG., 1ST SESS. 10-11 HAD THIS COMMENT:  "THE PROVISION IS DESIGNED TO
LEAVE THE QUESTION OF RELEASING AN ALIEN FROM CUSTODY IN AN IMMIGRATION
CASE ENTIRELY IN THE HANDS OF THE ATTORNEY GENERAL  ...  .  IT IN NO
WAY DENIES THE RIGHT OF ANY ALIEN TO TEST THE LEGALITY OF HIS DETENTION
THROUGH THE COURTS; IT MERELY STATES THAT THE ALIEN CANNOT BE RELEASED
BY THE COURT UNTIL JUDICIAL PROCEEDINGS HAVE BEEN FINALLY TERMINATED IN
THE ALIEN'S FAVOR." 

FN3  INTERNAL SECURITY ACT OF 1950, SEC. 23, 64 STAT. 987, 1010, 8
U.S.C. (SUPP. IV) SEC. 156(A). 

FN4  H.R. REP. NO. 1192, 81ST CONG., 1ST SESS. 5-6, COMMENTING ON
H.R. 10, WHICH MADE THE ATTORNEY GENERAL'S DISCRETION UNREVIEWABLE, YET
GAVE "DISCRETION" TO THE ATTORNEY GENERAL, SAID: 

"THIS EXISTING LAW HAS OFTEN BEEN FOUND TO BE LACKING IN CLARITY AND
DOUBTFUL IN PURPOSE WHEN QUESTIONS HAVE ARISEN CONCERNING PROCEDURE
FOLLOWING ARREST OF AN ALIEN, OR DURING THE INTERIM BETWEEN HIS ARREST
AND HIS HEARING AND DECISION ON HIS CASE  ...  .  THE COMMITTEE
BELIEVES THAT THIS BILL WILL GREATLY SIMPLIFY SUCH DETAILS." 

A MEMORANDUM FROM A LAWYERS' GROUP WHICH WAS READ INTO THE RECORD
URGED THAT TO MAKE THE DECISION OF THE ATTORNEY GENERAL UNREVIEWABLE
"FLOUTS THE RECENT DECISION OF THE CIRCUIT COURT OF APPEALS OF THE
SECOND CIRCUIT," CITING UNITED STATES EX REL. POTASH V. DISTRICT
DIRECTOR, 169 F.2D 747.  96 CONG. REC. 10454. 

FN5  COMPARE THE LANGUAGE "IN THE DISCRETION OF THE ATTORNEY GENERAL"
WITH THE CLAUSE "WHERE THE CONTROLLER HAS REASONABLE GROUNDS TO
BELIEVE," WHICH THE PRIVY COUNCIL HAD BEFORE IT IN NAKKUDA ALI V.
JAYARATNE, (1951) A.C. 66.  IT WAS HELD, IN THE JUDGMENT OF LORD
RADCLIFFE, "THAT THERE MUST IN FACT EXIST SUCH REASONABLE GROUNDS,
KNOWN TO THE CONTROLLER, BEFORE HE CAN VALIDLY EXERCISE THE POWER"
CONFERRED.  AND FOR THIS REASON:  "AFTER ALL, WORDS SUCH AS THESE ARE
COMMONLY FOUND WHEN A LEGISLATURE OR LAW-MAKING AUTHORITY CONFERS
POWERS ON A MINISTER OR OFFICIAL.  HOWEVER READ, THEY MUST BE INTENDED
TO SERVE IN SOME SENSE AS A CONDITION LIMITING THE EXERCISE OF AN
OTHERWISE ARBITRARY POWER.  BUT IF THE QUESTION WHETHER THE CONDITION
HAS BEEN SATISFIED IS TO BE CONCLUSIVELY DECIDED BY THE MAN WHO WIELDS
THE POWER THE VALUE OF THE INTENDED RESTRAINT IS IN EFFECT NOTHING.  NO
DOUBT HE MUST NOT EXERCISE THE POWER IN BAD FAITH:  BUT THE FIELD IN
WHICH THIS KIND OF QUESTION ARISES IS SUCH THAT THE RESERVATION FOR THE
CASE OF BAD FAITH IS HARDLY MORE THAN A FORMALITY."  ID., AT 77. 

FN6  PROFESSOR MARK DE WOLFE HOWE IN THE NATION, JAN. 12, 1952, P.
30. 

FN7  INTERNAL SECURITY ACT OF 1950, SEC. 2, 64 STAT. 987. 

FN8  INTERNAL SECURITY ACT OF 1950, SEC. 22, 64 STAT. 987, 1006, 8
U.S.C. (SUPP. IV) SECS. 137, 137-3. 

FN9  IBID. 

FN10  40 STAT. 1012, 8 U.S.C. SEC. 137(C). 

FN11  SEE DENNIS V. UNITED STATES, 341 U.S. 494, 510-511, AND THE
CONCURRING OPINION OF MR. JUSTICE JACKSON IN AMERICAN COMMUNICATIONS
ASSN. V. DOUDS, 339 U.S. 382, 422. 

FN12  A RADIOGRAM TO THE DISTRICT DIRECTOR OF IMMIGRATION AND
NATURALIZATION IN LOS ANGELES FROM THE ACTING COMMISSIONER IN
WASHINGTON COMPENDIOUSLY JUSTIFIED HOLDING THE FOUR LOS ANGELES ALIENS
WITHOUT BAIL THUS: 

"  ...  THE INSTRUCTION  ...  WAS ISSUED ONLY AFTER THE CASES HAD
BEEN EXAMINED IN THE LIGHT OF THE INTERNAL SECURITY ACT  ...  AND THE
SPIRIT AND INTENTION THEREOF AND ALL OF THE FACTORS CONCERNING THE
LIKELIHOOD OF THE DEPORTABILITY AND THE ACTIVITIES OF SAID ALIEN HAD
BEEN GIVEN CAREFUL CONSIDERATION AS WELL AS THE FACTORS OF UNDUE
HARDSHIP WHICH CONTINUED DETENTION MIGHT IMPOSE." 

THE RADIOGRAMS, IN OCTOBER, 1950, TO THE DISTRICT DIRECTOR IN DETROIT
ORDERING ZYDOK'S REARREST AND DETENTION WITHOUT BAIL GAVE NO REASONS
FOR THE ACTION. 

FN13  SEE 20 STAT. 30, 18 U.S.C. SEC. 3481; WILSON V. UNITED STATES,
149 U.S. 60, 66.  SEE ALSO BLAU V. UNITED STATES, 340 U.S. 159. 

FN14  IN A CASE JUST DECIDED, THE COURT OF APPEALS FOR THE SECOND
CIRCUIT FOUND A NOT UNREASONABLE EXERCISE OF DISCRETION BY THE ATTORNEY
GENERAL IN CIRCUMSTANCES THAT ARE HERE WANTING.  AN EXTRACT FROM THE
OPINION OF JUDGE A.N. HAND ILLUMINES THE DIFFERENCES: 

"IN HIS PETITION FOR THE WRIT, YOUNG ALLEGED FACTS INDICATING THAT IF
RELEASED HE WOULD BE AVAILABLE FOR ANY FURTHER PROCEEDINGS AT WHICH HIS
PRESENCE WOULD BE REQUIRED.  THE RETURN TO THE WRIT, HOWEVER, CONTAINED
ALLEGATIONS WHICH, IF ACCEPTED, ESTABLISHED A REASONABLE FOUNDATION FOR
THE DENIAL OF BAIL BY THE ATTORNEY GENERAL.  THUS THE RETURN, IN
ADDITION TO CONTAINING ALLEGATIONS OF MEMBERSHIP IN THE COMMUNIST
PARTY, ALLEGED THAT YOUNG HAD ONCE BEFORE ESCAPED FROM CUSTODY DURING
EARLIER PROCEEDINGS; THAT HE HAD PREVIOUSLY ATTEMPTED TO ENTER THE
UNITED STATES BY FURNISHING A FALSE IDENTITY AND WITH A FRAUDULENT
PASSPORT; AND THAT DURING HIS PRESENT DETENTION HE REFUSED TO ANSWER
QUESTIONS RELATING TO PRIOR IDENTIFICATION, PLACES OF RESIDENCE,
EMPLOYMENT AND HOME LIFE.  SECTION 2248 OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 2248, REQUIRES THAT THE FACTS ALLEGED IN THE RETURN BE TAKEN AS
TRUE UNLESS IMPEACHED, AND YOUNG IN HIS TRAVERSE TO THE RETURN DID NOT
REFUTE THOSE STATEMENTS, NOR DID HE IN HIS MOTION FOR REARGUMENT, MAKE
ANY OFFER TO PROVE THE CONTRARY, NOR DID HE ASSERT NEW FACTS, WHICH
UNDER 28 U.S.C. SEC. 2246 COULD HAVE BEEN ACCOMPLISHED BY AFFIDAVIT. 
AS THE SUPREME COURT HAS RECENTLY SAID IN STACK V. BOYLE, 342 U.S. 1,
4:  'THE RIGHT TO RELEASE BEFORE TRIAL IS CONDITIONED UPON THE
ACCUSED'S GIVING ADEQUATE ASSURANCE THAT HE WILL STAND TRIAL AND SUBMIT
TO SENTENCE IF FOUND GUILTY.'"  UNITED STATES EX REL. YOUNG V.
SHAUGHNESSY, 194 F.2D 474 (C.A.2D CIR., FEBRUARY 13, 1952). 

MR. JUSTICE DOUGLAS, DISSENTING. 

MY REASONS FOR DISSENT STRIKE DEEPER THAN THE BAIL PROVISIONS OF THE
EIGHTH AMENDMENT.  ACCORDING TO THE WARRANTS OF ARREST ISSUED ON
OCTOBER 31, 1950, THE PETITIONERS IN NO. 35 ARE BEING DETAINED FOR
DEPORTATION BECAUSE THEY WERE FORMERLY MEMBERS OF THE COMMUNIST PARTY
OF THE UNITED STATES.  ZYDOK, THE RESPONDENT IN NO. 136, WAS ARRESTED
FOR PRESENT COMMUNIST PARTY MEMBERSHIP, BUT NO CHARGE HAS BEEN MADE
THAT HE HAS BEEN GUILTY OF ANY SEDITIOUS CONDUCT OR THAT HE HAS
COMMITTED ANY OVERT ACT ENDANGERING OUR NATIONAL SECURITY.  IF THE
CONSTITUTION DOES NOT PERMIT EXPULSION OF THESE ALIENS FOR THEIR PAST
ACTIONS OR PRESENT EXPRESSIONS UNACCOMPANIED BY CONDUCT - AND I DO NOT
THINK IT DOES* - THEN THEY ARE ILLEGALLY DETAINED AND SHOULD BE SET
FREE, MAKING THE ISSUE OF BAIL MEANINGLESS. 

*SEE MY DISSENTS IN DENNIS V. UNITED STATES, 341 U.S. 494, 584-589;
HARISIADES V. SHAUGHNESSY, 342 U.S. 580, 598. 

MR. JUSTICE BURTON, DISSENTING. 

I JOIN THE DISSENTING OPINION OF MR. JUSTICE FRANKFURTER AND ADD THE
SUGGESTION THAT THE EIGHTH AMENDMENT LENDS SUPPORT TO THE STATUTORY
INTERPRETATION HE ADVOCATES.  THAT AMENDMENT CLEARLY PROHIBITS FEDERAL
BAIL THAT IS EXCESSIVE IN AMOUNT WHEN SEEN IN THE LIGHT OF ALL
TRADITIONALLY RELEVANT CIRCUMSTANCES.  LIKEWISE, IT MUST PROHIBIT
UNREASONABLE DENIAL OF BAIL.  THE AMENDMENT CANNOT WELL MEAN THAT, ON
THE ONE HAND, IT PROHIBITS THE REQUIREMENT OF BAIL SO EXCESSIVE IN
AMOUNT AS TO BE UNATTAINABLE, YET, ON THE OTHER HAND, UNDER LIKE
CIRCUMSTANCES, IT DOES NOT PROHIBIT THE DENIAL OF BAIL, WHICH COMES TO
THE SAME THING.  THE SAME CIRCUMSTANCES ARE RELEVANT TO BOTH
PROCEDURES.  IT IS DIFFICULT TO BELIEVE THAT CONGRESS NOW HAS ATTEMPTED
TO GIVE THE ATTORNEY GENERAL AUTHORITY TO DISREGARD THOSE
CONSIDERATIONS IN THE DENIAL OF BAIL. 
..END :



FAR EAST CONFERENCE V. UNITED STATES 342 U.S. 570 


NO. 15, MISC.  ARGUED JANUARY 30, 1952.  - DECIDED MARCH 10, 1952.  - 94
F. SUPP. 900, REVERSED. 


THE UNITED STATES BROUGHT THIS SUIT IN THE DISTRICT COURT TO ENJOIN
ALLEGED VIOLATIONS OF THE SHERMAN ANTITRUST ACT.  THE DEFENDANTS WERE
THE FAR EAST CONFERENCE, A VOLUNTARY ASSOCIATION, AND ITS CONSTITUENT
MEMBERS, STEAMSHIP COMPANIES ENGAGED IN "OUTBOUND FAR EAST TRADE."  THE
AGREEMENT UNDER WHICH THE CONFERENCE OPERATED WAS APPROVED BY THE
PREDECESSOR OF THE FEDERAL MARITIME BOARD, EXERCISING AUTHORITY UNDER
THE SHIPPING ACT OF 1916, AS AMENDED.  UNDER THIS AGREEMENT THE
CONFERENCE ESTABLISHED A DUAL SYSTEM OF RATES, WHEREBY SHIPPERS WHO
AGREED TO USE EXCLUSIVELY BOTTOMS OF CONFERENCE MEMBERS PAID ONE RATE,
WHILE THOSE WHO DID NOT SO BIND THEMSELVES PAID A FIXED HIGHER RATE. 
THIS DUAL SYSTEM OF RATES CONSTITUTED THE GRAVAMEN OF THE GOVERNMENT'S
SUIT.  HELD: 

1.  THE CASE IS INITIALLY WITHIN THE EXCLUSIVE JURISDICTION OF THE
FEDERAL MARITIME BOARD.  UNITED STATES NAVIGATION CO. V. CUNARD S.S.
CO., 284 U.S. 474.  PP. 573-576. 

(A)  A DIFFERENT RESULT FROM THAT REACHED IN THE CUNARD CASE IS NOT
REQUIRED BY THE FACT THAT THERE A PRIVATE SHIPPER INVOKED THE ANTITRUST
ACTS WHEREAS HERE IT IS THE GOVERNMENT.  P. 576. 

(B)  THE UNITED STATES IS A "PERSON" WHO UNDER SEC. 22 OF THE
SHIPPING ACT MAY FILE A COMPLAINT WITH THE FEDERAL MARITIME BOARD.  P.
576. 

2.  RATHER THAN ORDER THE CASE RETAINED ON THE DISTRICT COURT DOCKET
PENDING ACTION BY THE BOARD, THIS COURT ORDERS DISMISSAL OF THE
PROCEEDING BROUGHT IN THE DISTRICT COURT.  P. 576-577. 

FAR EAST CONFERENCE ET AL. V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEW JERSEY. 

IN A SUIT BROUGHT BY THE UNITED STATES TO ENJOIN ALLEGED VIOLATIONS
OF THE SHERMAN ACT, THE DISTRICT COURT DENIED THE DEFENDANTS' MOTION TO
DISMISS.  94 F. SUPP. 900.  THIS COURT GRANTED CERTIORARI.  342 U.S.
811.  REVERSED, P. 577. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT IN THE DISTRICT COURT FOR NEW JERSEY TO ENJOIN
VIOLATIONS OF THE SHERMAN LAW.  (FN1)  26 STAT. 209, 15 U.S.C. SECS. 1
AND 2.  THE DEFENDANTS WERE THE FAR EAST CONFERENCE, A VOLUNTARY
ASSOCIATION, AND ITS CONSTITUENT MEMBERS, STEAMSHIP COMPANIES ENGAGED
IN WHAT IS KNOWN AS THE "OUTBOUND FAR EAST TRADE."  THE CONFERENCE WAS
ORGANIZED IN 1922, AND THE CONFERENCE AGREEMENT UNDER WHICH IT OPERATES
WAS APPROVED BY THE UNITED STATES SHIPPING BOARD, (FN2) EXERCISING
AUTHORITY UNDER THE SHIPPING ACT OF 1916, AS AMENDED.  (FN3)  UNDER
THIS AGREEMENT THERE HAS BEEN ESTABLISHED A DUAL SYSTEM OF RATES,
CALLED THE CONTRACT AND NONCONTRACT RATE SYSTEM.  (FN4)  SHIPPERS WHO
AGREED TO USE EXCLUSIVELY BOTTOMS OF CONFERENCE MEMBERS PAID ONE RATE;
THOSE WHO DID NOT BIND THEMSELVES BY SUCH EXCLUSIVE PATRONAGE CONTRACT
PAID A FIXED HIGHER RATE.  SHIPPERS WHO ADHERED TO THE EXCLUSIVE
PATRONAGE CONTRACT WERE NOT TIED TO A PARTICULAR CARRIER; THEY WERE
FREE TO CHOOSE AMONG CONFERENCE CARRIERS.  THE CONFERENCE MEMBERS,
HOWEVER, WERE OBLIGATED TO SUPPLY FACILITIES SUFFICIENT TO HANDLE
FREIGHT DESTINED FOR THE FAR EAST.  THIS SYSTEM OF TWO LEVELS OF
FREIGHT RATES CONSTITUTED THE GRAVAMEN OF THE GOVERNMENT'S SUIT. 

ADMITTING THE DUAL-RATE SYSTEM, THE DEFENDANTS JUSTIFIED ON THE
MERITS BUT MOVED THAT THE COMPLAINT BE DISMISSED ON THE GROUND THAT THE
NATURE OF THE ISSUES REQUIRED THAT RESORT MUST FIRST BE HAD TO THE
FEDERAL MARITIME BOARD BEFORE A DISTRICT COURT COULD ADJUDICATE THE
GOVERNMENT'S COMPLAINT.  THE BOARD, AS INTERVENOR, JOINED IN THIS
MOTION.  IT WAS DENIED BY THE DISTRICT COURT, 94 F. SUPP. 900, AND WE
BROUGHT THE CASE HERE, UNDER SEC. 262 OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 1651(A), BECAUSE THERE ARE IN ISSUE IMPORTANT QUESTIONS REGARDING
THE RELATION BETWEEN THE SHERMAN LAW AND THE SHIPPING ACT.  342 U.S.
811. 

AT THE THRESHOLD WE MUST DECIDE WHETHER, IN A SUIT BROUGHT BY THE
UNITED STATES TO ENJOIN A DUAL-RATE SYSTEM ENFORCED IN CONCERT BY
STEAMSHIP CARRIERS ENGAGED IN FOREIGN TRADE, A DISTRICT COURT CAN PASS
ON THE MERITS OF THE COMPLAINT BEFORE THE FEDERAL MARITIME BOARD HAS
PASSED UPON THE QUESTION.  WE SEE NO REASON TO DEPART FROM UNITED
STATES NAVIGATION CO. V. CUNARD STEAMSHIP CO., 284 U.S. 474.  THAT CASE
ANSWERS OUR PROBLEM.  THERE A COMPETING CARRIER INVOKED THE ANTITRUST
ACTS FOR AN INJUNCTION AGAINST A COMBINATION OF CARRIERS IN THE NORTH
ATLANTIC TRADE WHICH WERE ALLEGED TO OPERATE A DUAL-RATE SYSTEM SIMILAR
TO THAT HERE INVOLVED.  THE PLAINTIFF HAD NOT PREVIOUSLY CHALLENGED THE
OFFENDING PRACTICE BEFORE THE UNITED STATES SHIPPING BOARD, THE
PREDECESSOR IN AUTHORITY OF THE PRESENT MARITIME BOARD.  THIS COURT
SUSTAINED THE TWO LOWER COURTS, 39 F.2D 204 (D.C.S.D.N.Y.)  AND 50 F.2D
83 (C.A.2D CIR.), DISMISSING THE BILL BECAUSE INITIAL CONSIDERATION BY
THE SHIPPING BOARD OF THE CIRCUMSTANCES IN CONTROVERSY HAD NOT BEEN
SOUGHT.  AFTER A DETAILED ANALYSIS OF THE PROVISIONS OF THE SHIPPING
ACT AND THEIR RELATION TO THE CONSTRUCTION THERETOFORE GIVEN TO THE
INTERSTATE COMMERCE ACT, THIS WAS THE CONCLUSION: 

"THE SHIPPING ACT IS RESTRICTIVE IN ITS OPERATION UPON SOME OF THE
ACTIVITIES OF COMMON CARRIERS BY WATER, AND PERMISSIVE IN RESPECT OF
OTHERS.  THEIR BUSINESS INVOLVES QUESTIONS OF AN EXCEPTIONAL CHARACTER,
THE SOLUTION OF WHICH MAY CALL FOR THE EXERCISE OF A HIGH DEGREE OF
EXPERT AND TECHNICAL KNOWLEDGE.  WHETHER A GIVEN AGREEMENT AMONG SUCH
CARRIERS SHOULD BE HELD TO CONTRAVENE THE ACT MAY DEPEND UPON A
CONSIDERATION OF ECONOMIC RELATIONS, OF FACTS PECULIAR TO THE BUSINESS
OR ITS HISTORY, OF COMPETITIVE CONDITIONS IN RESPECT OF THE SHIPPING OF
FOREIGN COUNTRIES, AND OF OTHER RELEVANT CIRCUMSTANCES, GENERALLY
UNFAMILIAR TO A JUDICIAL TRIBUNAL, BUT WELL UNDERSTOOD BY AN
ADMINISTRATIVE BODY ESPECIALLY TRAINED AND EXPERIENCED IN THE INTRICATE
AND TECHNICAL FACTS AND USAGES OF THE SHIPPING TRADE; AND WITH WHICH
THAT BODY CONSEQUENTLY, IS BETTER ABLE TO DEAL.  COMPARE CHICAGO BOARD
OF TRADE V. UNITED STATES, 246 U.S. 231, 238; UNITED STATES V. HAMBURGH
AMERICAN S.S. LINE, 216 FED. 971. 

"A COMPARISON OF THE ENUMERATION OF WRONGS CHARGED IN THE BILL WITH
THE PROVISIONS OF THE SECTIONS OF THE SHIPPING ACT ABOVE OUTLINED
CONCLUSIVELY SHOWS, WITHOUT GOING INTO DETAIL, THAT THE ALLEGATIONS
EITHER CONSTITUTE DIRECT AND BASIC CHARGES OF VIOLATIONS OF THESE
PROVISIONS OR ARE SO INTERRELATED WITH SUCH CHARGES AS TO BE IN EFFECT
A COMPONENT PART OF THEM; AND THE REMEDY IS THAT AFFORDED BY THE
SHIPPING ACT, WHICH TO THAT EXTENT SUPERSEDES THE ANTITURST LAWS. 
COMPARE KEOGH V. CHICAGO & N.W. RY. CO., SUPRA (260 U.S. 156), AT P.
162.  THE MATTER, THEREFORE, IS WITHIN THE EXCLUSIVE PRELIMINARY
JURISDICTION OF THE SHIPPING BOARD.  THE SCOPE AND EVIDENT PURPOSE OF
THE SHIPPING ACT, AS IN THE CASE OF THE INTERSTATE COMMERCE ACT, ARE
DEMONSTRATIVE OF THIS CONCLUSION."  284 U.S. 474, 485. 

THE COURT THUS APPLIED A PRINCIPLE, NOW FIRMLY ESTABLISHED, THAT IN
CASES RAISING ISSUES OF FACT NOT WITHIN THE CONVENTIONAL EXPERIENCE OF
JUDGES OR CASES REQUIRING THE EXERCISE OF ADMINISTRATIVE DISCRETION,
AGENCIES CREATED BY CONGRESS FOR REGULATING THE SUBJECT MATTER SHOULD
NOT BE PASSED OVER.  THIS IS SO EVEN THOUGH THE FACTS AFTER THEY HAVE
BEEN APPRAISED BY SPECIALIZED COMPETENCE SERVE AS A PREMISE FOR LEGAL
CONSEQUENCES TO BE JUDICIALLY DEFINED.  UNIFORMITY AND CONSISTENCY IN
THE REGULATION OF BUSINESS ENTRUSTED TO A PARTICULAR AGENCY ARE
SECURED, AND THE LIMITED FUNCTIONS OF REVIEW BY THE JUDICIARY ARE MORE
RATIONALLY EXERCISED, BY PRELIMINARY RESORT FOR ASCERTAINING AND
INTERPRETING THE CIRCUMSTANCES UNDERLYING LEGAL ISSUES TO AGENCIES THAT
ARE BETTER EQUIPPED THAN COURTS BY SPECIALIZATION, BY INSIGHT GAINED
THROUGH EXPERIENCE, AND BY MORE FLEXIBLE PROCEDURE. 

IT IS SIGNIFICANT THAT THIS MODE OF ACCOMMODATING THE COMPLEMENTARY
ROLES OF COURTS AND ADMINISTRATIVE AGENCIES IN THE ENFORCEMENT OF LAW
WAS ORIGINALLY APPLIED IN A SITUATION WHERE THE FACE OF THE STATUTE
GAVE THE INTERSTATE COMMERCE COMMISSION AND THE COURTS CONCURRENT
JURISDICTION.  "THE PIONEER WORK OF CHIEF JUSTICE WHITE" IN TEXAS &
PACIFIC R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, AS HIS
SUCCESSOR CHARACTERIZED IT, 257 U.S. XXVI, WAS ONE OF THOSE CREATIVE
JUDICIAL LABORS WHEREBY MODERN ADMINISTRATIVE LAW IS BEING DEVELOPED AS
PART OF OUR TRADITIONAL SYSTEM OF LAW.  IN THIS CASE WE ARE MERELY
APPLYING THE PHILOSOPHY WHICH WAS PUT IN MEMORABLE WORDS BY MR. JUSTICE
(AS HE THEN WAS) STONE: 

"  ...  COURT AND AGENCY ARE NOT TO BE REGARDED AS WHOLLY INDEPENDENT
AND UNRELATED INSTRUMENTALITIES OF JUSTICE, EACH ACTING IN THE
PERFORMANCE OF ITS PRESCRIBED STATUTORY DUTY WITHOUT REGARD TO THE
APPROPRIATE FUNCTION OF THE OTHER IN SECURING THE PLAINLY INDICATED
OBJECTS OF THE STATUTE.  COURT AND AGENCY ARE THE MEANS ADOPTED TO
ATTAIN THE PRESCRIBED END, AND SO FAR AS THEIR DUTIES ARE DEFINED BY
THE WORDS OF THE STATUTE, THOSE WORDS SHOULD BE CONSTRUED SO AS TO
ATTAIN THAT END THROUGH COORDINATED ACTION.  NEITHER BODY SHOULD REPEAT
IN THIS DAY THE MISTAKE MADE BY THE COURTS OF LAW WHEN EQUITY WAS
STRUGGLING FOR RECOGNITION AS AN AMELIORATING SYSTEM OF JUSTICE;
NEITHER CAN RIGHTLY BE REGARDED BY THE OTHER AS AN ALIEN INTRUDER, TO
BE TOLERATED IF MUST BE, BUT NEVER TO BE ENCOURAGED OR AIDED BY THE
OTHER IN THE ATTAINMENT OF THE COMMON AIM."  UNITED STATES V. MORGAN,
307 U.S. 183, 191. 

THE SOLE DISTINCTION BETWEEN THE CUNARD CASE AND THIS IS THAT THERE A
PRIVATE SHIPPER INVOKED THE ANTITRUST ACTS AND HERE IT IS THE
GOVERNMENT.  THIS DIFFERENCE DOES NOT TOUCH THE FACTORS THAT DETERMINED
THE CUNARD CASE.  THE SAME CONSIDERATIONS OF ADMINISTRATIVE EXPERTISE
APPLY, WHOEVER INITIATES THE ACTION.  THE SAME ANTITRUST LAWS AND THE
SAME SHIPPING ACT APPLY TO THE SAME DUAL-RATE SYSTEM.  TO THE SAME
EXTENT THEY DEFINE THE APPROPRIATE ORBITS OF ACTION AS BETWEEN COURT
AND MARITIME BOARD. 

BUT THE GOVERNMENT ARGUES THAT IT SHOULD NOT BE FORCED TO GO FIRST TO
THE BOARD BECAUSE THE UNITED STATES MAY NOT BE DEEMED A "PERSON" WHO
UNDER SEC. 22 OF THE SHIPPING ACT MAY FILE A COMPLAINT WITH THE
MARITIME BOARD.  (FN5)  SURELY THE LARGE QUESTION HERE IN ISSUE OUGHT
NOT TO TURN ON SUCH A DEBATING POINT.  IT IS ALMOST FRIVOLOUS TO
SUGGEST THAT THE MARITIME BOARD WOULD DENY STANDING TO THE UNITED
STATES AS A COMPLAINANT.  THE BOARD HAS CONSISTENTLY TREATED THE UNITED
STATES AS A "PERSON" WITHIN ITS RULE FOR INTERVENTION.  WE OUGHT NOT TO
DALLY LONGER WITH THIS OBJECTION, CONSIDERING THE FACT THAT THE UNITED
STATES, AS A MATTER OF COMMON KNOWLEDGE, IS TODAY ONE OF THE LARGEST
SHIPPERS IN THE FAR EAST TRADE.  THE MATTER SEEMS TO BE DISPOSED OF BY
UNITED STATES V. INTERSTATE COMMERCE COMMISSION, 337 U.S. 426, 430 ET
SEQ., INVOLVING SIMILAR PROVISIONS OF THE INTERSTATE COMMERCE ACT. 

HAVING CONCLUDED THAT INITIAL SUBMISSION TO THE FEDERAL MARITIME
BOARD IS REQUIRED, WE MAY EITHER ORDER THE CASE RETAINED ON THE
DISTRICT COURT DOCKET PENDING THE BOARD'S ACTION, GENERAL AMERICAN TANK
CAR CORP. V. EL DORADO TERMINAL CO., 308 U.S. 422, 432-433; EL DORADO
OIL WORKS V. UNITED STATES, 328 U.S. 12, 17; SEE UNITED STATES V.
INTERSTATE COMMERCE COMMISSION, SUPRA, AT 465, N. 12, OR ORDER
DISMISSAL OF THE PROCEEDING BROUGHT IN THE DISTRICT COURT.  AS
DISTINGUISHED FROM THE SITUATION PRESENTED BY THE FIRST EL DORADO CASE,
SUPRA, WHICH WAS A CONTRACT ACTION RAISING ONLY INCIDENTALLY A QUESTION
PROPER FOR INITIAL ADMINISTRATIVE DECISION, THE PRESENT CASE INVOLVES
QUESTIONS WITHIN THE GENERAL SCOPE OF THE MARITIME BOARD'S
JURISDICTION.  SHIPPING ACT OF 1916, SECS.  14, 15, 39 STAT. 728, 733,
46 U.S.C. SECS. 812, 814.  AN ORDER OF THE BOARD WILL BE SUBJECT TO
REVIEW BY A UNITED STATES COURT OF APPEALS, WITH OPPORTUNITY FOR
FURTHER REVIEW IN THIS COURT ON WRIT OF CERTIORARI.  PUB. L. NO. 901,
81ST CONG., 2D SESS., SECS. 2, 10, 64 STAT. 1129, 1132.  IF THE BOARD'S
ORDER IS FAVORABLE TO THE UNITED STATES, IT CAN BE ENFORCED BY PROCESS
OF THE DISTRICT COURT ON THE ATTORNEY GENERAL'S APPLICATION.  39 STAT.
728, 737, 46 U.S.C. SEC. 828.  WE BELIEVE THAT NO PURPOSE WILL HERE BE
SERVED TO HOLD THE PRESENT ACTION IN ABEYANCE IN THE DISTRICT COURT
WHILE THE PROCEEDING BEFORE THE BOARD AND SUBSEQUENT JUDICIAL REVIEW OR
ENFORCEMENT OF ITS ORDER ARE BEING PURSUED.  A SIMILAR SUIT IS EASILY
INITIATED LATER, IF APPROPRIATE.  BUSINESS-LIKE PROCEDURE COUNSELS THAT
THE GOVERNMENT'S COMPLAINT SHOULD NOW BE DISMISSED, AS WAS THE
COMPLAINT IN UNITED STATES NAVIGATION CO. V. CUNARD STEAMSHIP CO.,
SUPRA. 

THE JUDGMENT OF THE DISTRICT COURT MUST BE REVERSED. 

FN1  THE JURISDICTION OF THE DISTRICT COURT WAS BASED ON SEC. 4 OF
THE SHERMAN LAW:  "THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE
INVESTED WITH JURISDICTION TO PREVENT AND RESTRAIN VIOLATIONS OF

FN2  SECTION 3 OF THE SHIPPING ACT OF 1916 CREATED THE SHIPPING
BOARD.  39 STAT. 728, 729.  THROUGH SEVERAL STEPS ITS FUNCTIONS HAVE
COME TO ITS PRESENT SUCCESSOR, THE FEDERAL MARITIME BOARD.  BY
EXECUTIVE ORDER NO. 6166, JUNE 10, 1933, SEC. 12, ITS FUNCTIONS WERE
TRANSFERRED TO THE UNITED STATES SHIPPING BOARD BUREAU IN THE
DEPARTMENT OF COMMERCE.  IN 1936 CONGRESS CREATED THE UNITED STATES
MARITIME COMMISSION, 49 STAT.  1985, 1987, 46 U.S.C. SEC. 1114; AND IN
1950 THE PRESENT FEDERAL MARITIME BOARD WAS ESTABLISHED. 
REORGANIZATION PLAN NO. 21 OF 1950, 15 FED. REG. 3178-3180. 

FN3  39 STAT. 728, 46 U.S.C. SEC. 801 ET SEQ. 

FN4  THE IRRELEVANCE OF THE FAILURE TO FILE THE RATES THEMSELVES WITH
THE BOARD WAS LAID BARE IN UNITED STATES NAVIGATION CO. V. CUNARD
STEAMSHIP CO., 284 U.S. 474, 486-487: 

"IF THERE BE A FAILURE TO FILE AN AGREEMENT AS REQUIRED BY SEC. 15,
THE BOARD, AS IN THE CASE OF OTHER VIOLATIONS OF THE ACT, IS FULLY
AUTHORIZED BY SEC. 22, SUPRA, TO AFFORD RELIEF UPON COMPLAINT OR UPON
ITS OWN MOTION.  ITS ORDERS, IN THAT RESPECT, AS IN OTHER RESPECTS, ARE
THEN, UNDER SEC. 31, FOR THE FIRST TIME, OPEN TO A JUDICIAL PROCEEDING
TO ENFORCE, SUSPEND OR SET THEM ASIDE IN ACCORDANCE, GENERALLY, WITH
THE RULES AND LIMITATIONS ANNOUNCED BY THIS COURT IN RESPECT OF LIKE
ORDERS MADE BY THE INTERSTATE COMMERCE COMMISSION." 

FN5  39 STAT. 728, 736, 46 U.S.C. SEC. 821. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE SHIPPING ACT WOULD HAVE TO BE AMENDED FOR ME TO REACH THE RESULT
OF THE MAJORITY.  THE CONFERENCE AGREEMENT, APPROVED BY THE BOARD IN
1922, PROVIDES FOR THE ADOPTION BY THE CONFERENCE OF A TARIFF OF RATES
AND CHARGES.  IT STATES THAT THERE SHALL BE NO UNJUST DISCRIMINATION
AGAINST SHIPPERS AND NO REBATES PAID TO THEM.  THERE IS NO PROVISION IN
THE AGREEMENT FOR DUAL RATES - NO ARRANGEMENT FOR ALLOWING ONE RATE TO
SHIPPERS WHO GIVE ALL THEIR BUSINESS TO THE MEMBERS AND FOR
RETALIATIONS AGAINST NONSUBSCRIBING SHIPPERS BY EXACTING FROM THEM A
HIGHER RATE.  NEVERTHELESS PETITIONERS HAVE PRESCRIBED THIS DUAL RATE
SYSTEM FOR THE PURPOSE OF BARRING FROM THE OUTBOUND FAR EAST TRADE
STEAMSHIP LINES THAT ARE NOT MEMBERS OF THE COMBINATION.  AT LEAST
THESE ARE THE FACTS IF WE ARE TO BELIEVE THE ALLEGATIONS OF THE
COMPLAINT, AS WE MUST ON THE MOTION TO DISMISS.    IF THE BOARD HAS
EXPRESSLY APPROVED THE DUAL RATE SYSTEM, AND THE DUAL RATE SYSTEM DID
NOT VIOLATE THE SHIPPING ACT, THEN THERE WOULD BE IMMUNITY FROM THE
SHERMAN ACT, SINCE SEC. 15 OF THE SHIPPING ACT, 39 STAT. 733, AS
AMENDED, 46 U.S.C. SEC. 814, GIVES THE BOARD AUTHORITY TO APPROVE
AGREEMENTS FIXING OR REGULATING RATES, IN EFFECT MAKES "LAWFUL" THE
RATES SO APPROVED, AND EXEMPTS FROM THE SHERMAN ACT EVERY "LAWFUL"
AGREEMENT CONCERNING THEM.  BUT THAT EXEMPTION FROM THE SHERMAN ACT CAN
BE ACQUIRED ONLY IN THE MANNER PRESCRIBED BY SEC. 15.  HERE NO EFFORT
WAS MADE TO OBTAIN IT.  HENCE THE PETITIONERS ARE AT LARGE, SUBJECT TO
ALL OF THE RESTRAINTS OF THE SHERMAN ACT. 

WHY SHOULD THE DEPARTMENT OF JUSTICE BE REMITTED TO THE BOARD FOR ITS
REMEDY?  THE BOARD HAS NO AUTHORITY TO ENFORCE THE SHERMAN ACT.  (FN1)
IF THE RATES WERE FILED, OF COURSE THE BOARD WOULD HAVE EXCLUSIVE
JURISDICTION TO PASS ON THEM.  BUT EVEN THEN IT IS RESTRICTED.  SECTION
14, THIRD, FOR EXAMPLE, MAKES UNLAWFUL RETALIATION AGAINST ANY SHIPPER
BY RESORT TO DISCRIMINATORY OR UNFAIR TACTICS BECAUSE A SHIPPER HAS
PATRONIZED ANOTHER CARRIER.  AND IT WOULD SEEM PLAIN THAT WHEN A
SHIPPER IS CHARGED ONE RATE IF HE GIVES THE CONFERENCE A MONOPOLY OF
HIS BUSINESS AND ANOTHER AND HIGHER RATE IF THE SHIPPER USES A CARRIER
NOT A MEMBER OF THE CONFERENCE, THE SHIPPER IS BEING RETALIATED AGAINST
FOR SHOPPING AROUND AMONG CARRIERS. 

PETITIONERS, THEREFORE, OPERATE OUTSIDE THE LAW NOT ONLY BECAUSE THEY
HAVE FAILED TO SUBMIT THEIR SCHEDULE OF RATES TO THE BOARD BUT ALSO
BECAUSE THE RATES ADOPTED WOULD, IF APPROVED, BE ILLEGAL.  (FN2)  THE
STEAMSHIP COMPANIES, THEREFORE, FLOUT THE LAW AS PLAINLY AS IF THEY
USED RATES THAT HAD BEEN DISAPPROVED BY THE BOARD.  IN EITHER CASE THE
PUBLIC INTEREST NEEDS PROTECTION IF THE SHERMAN ACT IS TO BE ENFORCED -
WHETHER IT BE REPRESENTED IN A CRIMINAL PROSECUTION OR, AS HERE, IN A
CIVIL PROCEEDING BROUGHT BY THE UNITED STATES. 

THE JURISDICTION OF THE DEPARTMENT OF JUSTICE MUST COMMENCE AT THIS
POINT, UNLESS WE ARE TO AMEND THE ACT BY GRANTING AN ANTI-TRUST
EXEMPTION TO RATE FIXING NOT ONLY WHEN THE RATES ARE FILED BY THE
COMPANIES AND APPROVED BY THE BOARD BUT ALSO WHEN THEY ARE NOT FILED AT
ALL OR ARE RATES WHICH, IF FILED, COULD NOT BE APPROVED.  I WOULD READ
THE ACT AS WRITTEN AND REQUIRE THE STEAMSHIP COMPANIES TO OBTAIN THE
ANTI-TRUST EXEMPTION IN THE PRECISE WAY CONGRESS HAS PROVIDED. 

FN1  THE REMEDY PROVIDED BY SEC. 22 OF THE SHIPPING ACT IS FOR "ANY
VIOLATION OF THIS ACT."  THE CHARGE IN THE PRESENT CASE IS A VIOLATION
OF THE SHERMAN ACT. 

FN2  THERE IS LESS ROOM FOR EXPERTISE WHERE THE RATES USED BY THE
STEAMSHIP COMPANIES ARE UNFILED OR UNLAWFUL RATES.  CF. U.S. NAVIGATION
CO. V. CUNARD S.S. CO., 284 U.S. 474
..END :






















HARISIADES V. SHAUGHNESSY 342 U.S. 580 


NO. 43.  ARGUED DECEMBER 5, 1951.  - DECIDED MARCH 10, 1952.  - 187 F.2D
137, AFFIRMED. 


1.  THE ALIEN REGISTRATION ACT OF 1940, SO FAR AS IT AUTHORIZES THE
DEPORTATION OF A LEGALLY RESIDENT ALIEN BECAUSE OF MEMBERSHIP IN THE
COMMUNIST PARTY, EVEN THOUGH SUCH MEMBERSHIP TERMINATED BEFORE
ENACTMENT OF THE ACT, WAS WITHIN THE POWER OF CONGRESS UNDER THE
FEDERAL CONSTITUTION.  PP. 581-596. 

(A)  THE ACT DOES NOT DEPRIVE THE ALIEN OF LIBERTY WITHOUT DUE
PROCESS OF LAW IN VIOLATION OF THE FIFTH AMENDMENT.  PP. 584-591. 

(1)  THE POWER TO DEPORT ALIENS IS INHERENT IN EVERY SOVEREIGN
STATE.  PP. 587-588. 

(2)  THE POLICY TOWARD ALIENS IS SO EXCLUSIVELY ENTRUSTED TO THE
POLITICAL BRANCHES OF THE GOVERNMENT AS TO BE LARGELY IMMUNE FROM
JUDICIAL INQUIRY OR INTERFERENCE; AND IT CANNOT BE SAID THAT THE POWER
HAS BEEN SO UNREASONABLY OR HARSHLY EXERCISED BY CONGRESS IN THIS ACT
AS TO WARRANT JUDICIAL INTEREFERNCE.  PP. 588-590. 

(3)  THE FACT THAT THE ACT INFLICTS SEVERE HARDSHIP ON THE
INDIVIDUALS AFFECTED DOES NOT RENDER IT VIOLATIVE OF THE DUE PROCESS
CLAUSE.  PP. 590-591. 

(B)  THE ACT DOES NOT ABRIDGE THE ALIENS' FREEDOMS OF SPEECH AND
ASSEMBLY IN CONTRAVENTION OF THE FIRST AMENDMENT.  PP. 591-592. 

(C)  THE ACT DOES NOT CONTRAVENE THE PROVISION OF ART. I, SEC. 9 OF
THE CONSTITUTION FORBIDDING EX POST FACTO LAWS.  PP. 593-596. 

2.  PROCEDURAL REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT ARE
NOT MANDATORY AS TO PROCEEDINGS WHICH WERE INSTITUTED BEFORE THE
EFFECTIVE DATE OF THE ACT.  P. 583, N. 4. 

3.  ONE WHO CONSENTED TO THE SAME INDIVIDUAL ACTING BOTH AS PRESIDING
OFFICER AND EXAMINING OFFICER IN ADMINISTRATIVE PROCEEDINGS IS WITHOUT
STANDING, ON JUDICIAL REVIEW, TO RAISE THE OBJECTION THAT HE WAS
THEREBY DENIED PROCEDURAL DUE PROCESS.  P. 583, N. 4. 

HARISIADES V. SHAUGHNESSY, DISTRICT DIRECTOR OF IMMIGRATION AND
NATURALIZATION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT.* 

*TOGETHER WITH NO. 206, MASCITTI V. MCGRATH, ATTORNEY GENERAL, ON
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA; AND NO. 264, COLEMAN V. MCGRATH, ATTORNEY GENERAL, ET AL.,
ALSO ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA. 

THE CASES ARE STATED IN THE OPINION OF THE COURT, PP. 581-584.  THE
JUDGMENTS ARE AFFIRMED, P. 596. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE QUESTION IN THESE THREE CASES IS WHETHER THE UNITED
STATES CONSTITUTIONALLY MAY DEPORT A LEGALLY RESIDENT ALIEN BECAUSE OF
MEMBERSHIP IN THE COMMUNIST PARTY WHICH TERMINATED BEFORE ENACTMENT OF
THE ALIEN REGISTRATION ACT, 1940.  (FN1) 

HARISIADES, A GREEK NATIONAL, ACCOMPANIED HIS FATHER TO THE UNITED
STATES IN 1916, WHEN THIRTEEN YEARS OF AGE, AND HAS RESIDED HERE
SINCE.  HE HAS TAKEN A WIFE AND SIRED TWO CHILDREN, ALL CITIZENS.   HE
JOINED THE COMMUNIST PARTY IN 1925, WHEN IT WAS KNOWN AS THE WORKERS
PARTY, AND SERVED AS AN ORGANIZER, BRANCH EXECUTIVE COMMITTEEMAN,
SECRETARY OF ITS GREEK BUREAU, AND EDITOR OF ITS PAPER "EMPROS."  THE
PARTY DISCONTINUED HIS MEMBERSHIP, ALONG WITH THAT OF OTHER ALIENS, IN
1939, BUT HE HAS CONTINUED ASSOCIATION WITH MEMBERS.  HE WAS FAMILIAR
WITH THE PRINCIPLES AND PHILOSOPHY OF THE COMMUNIST PARTY AND SAYS HE
STILL BELIEVES IN THEM.  HE DISCLAIMS PERSONAL BELIEF IN USE OF FORCE
AND VIOLENCE AND ASSERTS THAT THE PARTY FAVORED THEIR USE ONLY IN
DEFENSE.  A WARRANT FOR HIS DEPORTATION BECAUSE OF HIS MEMBERSHIP WAS
ISSUED IN 1930 BUT WAS NOT SERVED UNTIL 1946.  THE DELAY WAS DUE TO
INABILITY TO LOCATE HIM BECAUSE OF HIS USE OF A NUMBER OF ALIASES. 
AFTER HEARINGS, HE WAS ORDERED DEPORTED ON THE GROUNDS THAT AFTER ENTRY
HE HAD BEEN A MEMBER OF AN ORGANIZATION WHICH ADVOCATES OVERTHROW OF
THE GOVERNMENT BY FORCE AND VIOLENCE AND DISTRIBUTES PRINTED MATTER SO
ADVOCATING.  HE SOUGHT RELEASE BY HABEAS CORPUS, WHICH WAS DENIED BY
THE DISTRICT COURT.  (FN2)  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMED.  (FN3) 

MASCITTI, A CITIZEN OF ITALY, CAME TO THIS COUNTRY IN 1920, AT THE
AGE OF SIXTEEN.  HE MARRIED A RESIDENT ALIEN AND HAS ONE AMERICAN-BORN
CHILD.  HE WAS A MEMBER OF THE YOUNG WORKERS PARTY, THE WORKERS PARTY
AND THE COMMUNIST PARTY BETWEEN 1923 AND 1929.  HIS TESTIMONY WAS THAT
HE KNEW THE PARTY ADVOCATED A PROLETARIAN DICTATORSHIP, TO BE
ESTABLISHED BY FORCE AND VIOLENCE IF THE CAPITALIST CLASS RESISTED.  HE
HEARD SOME SPEAKERS ADVOCATE VIOLENCE, IN WHICH HE SAYS HE DID NOT
PERSONALLY BELIEVE, AND HE WAS NOT CLEAR AS TO THE PARTY POLICY.  HE
RESIGNED IN 1929, APPARENTLY BECAUSE HE LOST SYMPATHY WITH OR INTEREST
IN THE PARTY.  A WARRANT FOR HIS DEPORTATION ISSUED AND WAS SERVED IN
1946.  AFTER THE USUAL ADMINISTRATIVE HEARINGS HE WAS ORDERED DEPORTED
ON THE SAME GROUNDS AS HARISIADES.  HE SOUGHT RELIEF BY DECLARATORY
JUDGMENT, WHICH WAS DENIED WITHOUT OPINION BY A THREE-JUDGE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA.  HIS CASE COMES TO THIS COURT BY
DIRECT APPEAL. 

MRS. COLEMAN, A NATIVE OF RUSSIA, WAS ADMITTED TO THE UNITED STATES
IN 1914, WHEN THIRTEEN YEARS OF AGE.  SHE MARRIED AN AMERICAN CITIZEN
AND HAS THREE CHILDREN, CITIZENS BY BIRTH.  SHE ADMITS BEING A MEMBER
OF THE COMMUNIST PARTY FOR ABOUT A YEAR, BEGINNING IN 1919, AND AGAIN
FROM 1928 TO 1930, AND AGAIN FROM 1936 TO 1937 OR 1938.  SHE HELD NO
OFFICE AND HER ACTIVITIES WERE NOT SIGNIFICANT.  SHE DISAVOWED MUCH
KNOWLEDGE OF PARTY PRINCIPLES AND PROGRAM, CLAIMING SHE JOINED EACH
TIME BECAUSE OF SOME INJUSTICE THE PARTY WAS THEN FIGHTING.  THE
REASONS SHE GIVES FOR LEAVING THE PARTY ARE HER HEALTH AND THE PARTY'S
DISCONTINUANCE OF ALIEN MEMBERSHIPS.  SHE HAS BEEN ORDERED DEPORTED
BECAUSE AFTER ENTRY SHE BECAME A MEMBER OF AN ORGANIZATION ADVOCATING
OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE.  SHE SOUGHT AN
INJUNCTION ON CONSTITUTIONAL GROUNDS, AMONG OTHERS.   RELIEF WAS
DENIED, WITHOUT OPINION, BY THREE-JUDGE DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA AND HER CASE ALSO COMES HERE BY DIRECT APPEAL. 

VALIDITY OF THE HEARING PROCEDURES IS QUESTIONED FOR NONCOMPLIANCE
WITH THE ADMINISTRATIVE PROCEDURE ACT, WHICH WE THINK IS HERE
INAPPLICABLE,  (FN4)  ADMITTEDLY, EACH OF THESE DEPORTATIONS IS
AUTHORIZED AND REQUIRED BY THE LETTER, SPIRIT AND INTENTION OF THE
STATUTE.  BUT THE ACT IS ASSAILED ON THREE GROUNDS:  (1) THAT IT
DEPRIVES THE ALIENS OF LIBERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION
OF THE FIFTH AMENDMENT; (2) THAT IT ABRIDGES THEIR FREEDOMS OF SPEECH
AND ASSEMBLY IN CONTRAVENTION OF THE FIRST AMENDMENT; AND (3) THAT IT
IS AN EX POST FACTO LAW WHICH CONGRESS IS FORBIDDEN TO PASS BY ART. I,
SEC. 9, CL. 3 OF THE CONSTITUTION. 

WE HAVE IN EACH CASE A FINDING, APPROVED BY THE COURT BELOW, THAT THE
COMMUNIST PARTY DURING THE PERIOD OF THE ALIEN'S MEMBERSHIP TAUGHT AND
ADVOCATED OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE.  THOSE FINDINGS ARE NOT QUESTIONED HERE. 

                                        I. 

THESE ALIENS ASK US TO FORBID THEIR EXPULSION BY A DEPARTURE FROM THE
LONG-ACCEPTED APPLICATION TO SUCH CASES OF THE FIFTH AMENDMENT
PROVISION THAT NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY
WITHOUT DUE PROCESS OF LAW.  THEIR BASIC CONTENTION IS THAT ADMISSION
FOR PERMANENT RESIDENCE CONFERS A "VESTED RIGHT" ON THE ALIEN, EQUAL TO
THAT OF THE CITIZEN, TO REMAIN WITHIN THE COUNTRY, AND THAT THE ALIEN
IS ENTITLED TO CONSTITUTIONAL PROTECTION IN THAT MATTER TO THE SAME
EXTENT AS THE CITIZEN.  THEIR SECOND LINE OF DEFENSE IS THAT IF ANY
POWER TO DEPORT DOMICILED ALIENS EXISTS IT IS SO DISPERSED THAT THE
JUDICIARY MUST CONCUR IN THE GROUNDS FOR ITS EXERCISE TO THE EXTENT OF
FINDING THEM REASONABLE.  THE ARGUMENT GOES ON TO THE CONTENTION THAT
THE GROUNDS PRESCRIBED BY THE ACT OF 1940 BEAR NO REASONABLE RELATION
TO PROTECTION OF LEGITIMATE INTERESTS OF THE UNITED STATES AND
CONCLUDES THAT THE ACT SHOULD BE DECLARED INVALID.  ADMITTEDLY THESE
PROPOSITIONS ARE NOT FOUNDED IN PRECEDENTS OF THIS COURT. 

FOR OVER THIRTY YEARS EACH OF THESE ALIENS HAS ENJOYED SUCH
ADVANTAGES AS ACCRUE FROM RESIDENCE HERE WITHOUT RENOUNCING HIS FOREIGN
ALLEGIANCE OR FORMALLY ACKNOWLEDGING ADHERENCE TO THE CONSTITUTION HE
NOW INVOKES.  EACH WAS ADMITTED TO THE UNITED STATES, UPON PASSING
FORMIDABLE EXCLUSIONARY HURDLES, IN THE HOPE THAT, AFTER WHAT MAY BE
CALLED A PROBATIONARY PERIOD, HE WOULD DESIRE AND BE FOUND DESIRABLE
FOR CITIZENSHIP.  EACH HAS BEEN OFFERED NATURALIZATION, WITH ALL OF THE
RIGHTS AND PRIVILEGES OF CITIZENSHIP, CONDITIONED ONLY UPON OPEN AND
HONEST ASSUMPTION OF UNDIVIDED ALLEGIANCE TO OUR GOVERNMENT.  (FN5)
BUT ACCEPTANCE WAS AND IS NOT COMPULSORY.  EACH HAS BEEN PERMITTED TO
PROLONG HIS ORIGINAL NATIONALITY INDEFINITELY. 

SO LONG AS ONE THUS PERPETUATES A DUAL STATUS AS AN AMERICAN
INHABITANT BUT FOREIGN CITIZEN, HE MAY DERIVE ADVANTAGES FROM TWO
SOURCES OF LAW - AMERICAN AND INTERNATIONAL.  HE MAY CLAIM PROTECTION
AGAINST OUR GOVERNMENT UNAVAILABLE TO THE CITIZEN.  AS AN ALIEN HE
RETAINS A CLAIM UPON THE STATE OF HIS CITIZENSHIP TO DIPLOMATIC
INTERVENTION ON HIS BEHALF, A PATRONAGE OFTEN OF CONSIDERABLE VALUE. 
THE STATE OF ORIGIN OF EACH OF THESE ALIENS COULD PRESENTLY ENTER
DIPLOMATIC REMONSTRANCE AGAINST THESE DEPORTATIONS IF THEY WERE
INCONSISTENT WITH INTERNATIONAL LAW, THE PREVAILING CUSTOM AMONG
NATIONS OR THEIR OWN PRACTICES. 

THE ALIEN RETAINS IMMUNITIES FROM BURDENS WHICH THE CITIZEN MUST
SHOULDER.  BY WITHHOLDING HIS ALLEGIANCE FROM THE UNITED STATES, HE
LEAVES OUTSTANDING A FOREIGN CALL ON HIS LOYALTIES WHICH INTERNATIONAL
LAW NOT ONLY PERMITS OUR GOVERNMENT TO RECOGNIZE BUT COMMANDS IT TO
RESPECT.  IN DEFERENCE TO IT CERTAIN DISPENSATIONS FROM CONSCRIPTION
FOR ANY MILITARY SERVICE HAVE BEEN GRANTED FOREIGN NATIONALS.  (FN6)
THEY CANNOT, CONSISTENTLY WITH OUR INTERNATIONAL COMMITMENTS, BE
COMPELLED "TO TAKE PART IN THE OPERATIONS OF WAR DIRECTED AGAINST THEIR
OWN COUNTRY."  (FN7)  IN ADDITION TO SUCH GENERAL IMMUNITIES THEY MAY
ENJOY PARTICULAR TREATY PRIVILEGES.  (FN8) 

UNDER OUR LAW, THE ALIEN IN SEVERAL RESPECTS STANDS ON AN EQUAL
FOOTING WITH CITIZENS, (FN9) BUT IN OTHERS HAS NEVER BEEN CONCEDED
LEGAL PARITY WITH THE CITIZEN.  (FN10)  MOST IMPORTANTLY, TO PROTRACT
THIS AMBIGUOUS STATUS WITHIN THE COUNTRY IS NOT HIS RIGHT BUT IS A
MATTER OF PERMISSION AND TOLERANCE.  THE GOVERNMENT'S POWER TO
TERMINATE ITS HOSPITALITY HAS BEEN ASSERTED AND SUSTAINED BY THIS COURT
SINCE THE QUESTION FIRST AROSE.  (FN11) 

WAR, OF COURSE, IS THE MOST USUAL OCCASION FOR EXTENSIVE RESORT TO
THE POWER.  THOUGH THE RESIDENT ALIEN MAY BE PERSONALLY LOYAL TO THE
UNITED STATES, IF HIS NATION BECOMES OUR ENEMY HIS ALLEGIANCE PREVAILS
OVER HIS PERSONAL PREFERENCE AND MAKES HIM ALSO OUR EMEMY, LIABLE TO
EXPULSION OR INTERNMENT, (FN12) AND HIS PROPERTY BECOMES SUBJECT TO
SEIZURE AND PERHAPS CONFISCATION.  (FN13) BUT IT DOES NOT REQUIRE WAR
TO BRING THE POWER OF DEPORTATION INTO EXISTENCE OR TO AUTHORIZE ITS
EXERCISE.  CONGRESSIONAL APPREHENSION OF FOREIGN OR INTERNAL DANGERS
SHORT OF WAR MAY LEAD TO ITS USE.  SO LONG AS THE ALIEN ELECTS TO
CONTINUE THE AMBIGUITY OF HIS ALLEGIANCE HIS DOMICILE HERE IS HELD BY A
PRECARIOUS TENURE. 

THAT ALIENS REMAIN VULNERABLE TO EXPULSION AFTER LONG RESIDENCE IS A
PRACTICE THAT BRISTLES WITH SEVERITIES.  BUT IT IS A WEAPON OF DEFENSE
AND REPRISAL CONFIRMED BY INTERNATIONAL LAW AS A POWER INHERENT IN
EVERY SOVEREIGN STATE.  (FN14)  SUCH IS THE TRADITIONAL POWER OF THE
NATION OVER THE ALIEN AND WE LEAVE THE LAW ON THE SUBJECT AS WE FIND
IT. 

THIS BRINGS US TO THE ALTERNATIVE DEFENSE UNDER THE DUE PROCESS
CLAUSE - THAT, GRANTING THE POWER, IT IS SO UNREASONABLY AND HARSHLY
EXERCISED BY THIS ENACTMENT THAT IT SHOULD BE HELD UNCONSTITUTIONAL. 

IN HISTORICAL CONTEXT THE ACT BEFORE US STANDS OUT AS AN EXTREME
APPLICATION OF THE EXPULSION POWER.  THERE IS NO DENYING THAT AS WORLD
CONVULSIONS HAVE DRIVEN US TOWARD A CLOSED SOCIETY THE EXPULSION POWER
HAS BEEN EXERCISED WITH INCREASING SEVERITY, MANIFEST IN MULTIPLICATION
OF GROUNDS FOR DEPORTATION, IN EXPANDING THE SUBJECT CLASSES FROM
ILLEGAL ENTRANTS TO LEGAL RESIDENTS, AND IN GREATLY LENGTHENING THE
PERIOD OF RESIDENCE AFTER WHICH ONE MAY BE EXPELLED.  (FN15)  THIS IS
SAID TO HAVE REACHED A POINT WHERE IT IS THE DUTY OF THIS COURT TO CALL
A HALT UPON THE POLITICAL BRANCHES OF THE GOVERNMENT. 

IT IS PERTINENT TO OBSERVE THAT ANY POLICY TOWARD ALIENS IS VITALLY
AND INTRICATELY INTERWOVEN WITH CONTEMPORANEOUS POLICIES IN REGARD TO
THE CONDUCT OF FOREIGN RELATIONS, THE WAR POWER, AND THE MAINTENANCE OF
A REPUBLICAN FORM OF GOVERNMENT.  SUCH MATTERS ARE SO EXCLUSIVELY
ENTRUSTED TO THE POLITICAL BRANCHES OF GOVERNMENT AS TO BE LARGELY
IMMUNE FROM JUDICIAL INQUIRY OR INTERFERENCE.  (FN16) 

THESE RESTRAINTS UPON THE JUDICIARY, OCCASIONED BY DIFFERENT EVENTS,
DO NOT CONTROL TODAY'S DECISION BUT THEY ARE PERTINENT.  IT IS NOT
NECESSARY AND PROBABLY NOT POSSIBLE TO DELINEATE A FIXED AND PRECISE
LINE OF SEPARATION IN THESE MATTERS BETWEEN POLITICAL AND JUDICIAL
POWER UNDER THE CONSTITUTION.  CERTAINLY, HOWEVER, NOTHING IN THE
STRUCTURE OF OUR GOVERNMENT OR THE TEXT OF OUR CONSTITUTION WOULD
WARRANT JUDICIAL REVIEW BY STANDARDS WHICH WOULD REQUIRE US TO EQUATE
OUR POLITICAL JUDGMENT WITH THAT OF CONGRESS. 

UNDER THE CONDITIONS WHICH PRODUCED THIS ACT, CAN WE DECLARE THAT
CONGRESSIONAL ALARM ABOUT A COALITION OF COMMUNIST POWER WITHOUT AND
COMMUNIST CONSPIRACY WITHIN THE UNITED STATES IS EITHER A FANTASY OR A
PRETENSE?  THIS ACT WAS APPROVED BY PRESIDENT ROOSEVELT JUNE 28, 1940,
WHEN A WORLD WAR WAS THREATENING TO INVOLVE US, AS SOON IT DID. 
COMMUNISTS IN THE UNITED STATES WERE EXERTING EVERY EFFORT TO DEFEAT
AND DELAY OUR PREPARATIONS.  CERTAINLY NO RESPONSIBLE AMERICAN WOULD
SAY THAT THERE WERE THEN OR ARE NOW NO POSSIBLE GROUNDS ON WHICH
CONGRESS MIGHT BELIEVE THAT COMMUNISTS IN OUR MIDST ARE INIMICAL TO OUR
SECURITY. 

CONGRESS RECEIVED EVIDENCE THAT THE COMMUNIST MOVEMENT HERE HAS BEEN
HEAVILY LADEN WITH ALIENS AND THAT SOVIET CONTROL OF THE AMERICAN
COMMUNIST PARTY HAS BEEN LARGELY THROUGH ALIEN COMMUNISTS.  IT WOULD BE
EASY FOR THOSE OF US WHO DO NOT HAVE SECURITY RESPONSIBILITY TO SAY
THAT THOSE WHO DO ARE TAKING COMMUNISM TOO SERIOUSLY AND OVERESTIMATING
ITS DANGER.  BUT WE HAVE AN ACT OF ONE CONGRESS WHICH, FOR A DECADE,
SUBSEQUENT CONGRESSES HAVE NEVER REPEALED BUT HAVE STRENGTHENED AND
EXTENDED.  WE, IN OUR PRIVATE OPINIONS, NEED NOT CONCUR IN CONGRESS'
POLICIES TO HOLD ITS ENACTMENTS CONSTITUTIONAL.  JUDICIALLY WE MUST
TOLERATE WHAT PERSONALLY WE MAY REGARD AS A LEGISLATIVE MISTAKE. 

WE ARE URGED, BECAUSE THE POLICY INFLICTS SEVERE AND UNDOUBTED
HARDSHIP ON AFFECTED INDIVIDUALS, TO FIND A RESTRAINT IN THE DUE
PROCESS CLAUSE.  BUT THE DUE PROCESS CLAUSE DOES NOT SHIELD THE CITIZEN
FROM CONSCRIPTION AND THE CONSEQUENT CALAMITY OF BEING SEPARATED FROM
FAMILY, FRIENDS, HOME AND BUSINESS WHILE HE IS TRANSPORTED TO FOREIGN
LANDS TO STEM THE TIDE OF COMMUNISM.  IF COMMUNIST AGGRESSION CREATES
SUCH HARDSHIPS FOR LOYAL CITIZENS, IT IS HARD TO FIND JUSTIFICATION FOR
HOLDING THAT THE CONSTITUTION REQUIRES THAT ITS HARDSHIPS MUST BE
SPARED THE COMMUNIST ALIEN.  WHEN CITIZENS RAISED THE CONSTITUTION AS A
SHIELD AGAINST EXPULSION FROM THEIR HOMES AND PLACES OF BUSINESS, THE
COURT REFUSED TO FIND HARDSHIP A CAUSE FOR JUDICIAL INTERVENTION. 
(FN17)    WE THINK THAT, IN THE PRESENT STATE OF THE WORLD, IT WOULD BE
RASH AND IRRESPONSIBLE TO REINTERPRET OUR FUNDAMENTAL LAW TO DENY OR
QUALIFY THE GOVERNMENT'S POWER OF DEPORTATION.  HOWEVER DESIRABLE WORLD
WIDE AMELIORATION OF THE LOT OF ALIENS, WE THINK IT IS PECULIARLY A
SUBJECT FOR INTERNATIONAL DIPLOMACY.  IT SHOULD NOT BE INITIATED BY
JUDICIAL DECISION WHICH CAN ONLY DEPRIVE OUR OWN GOVERNMENT OF A POWER
OF DEFENSE AND REPRISAL WITHOUT OBTAINING FOR AMERICAN CITIZENS ABROAD
ANY RECIPROCAL PRIVILEGES OR IMMUNITIES.  REFORM IN THIS FIELD MUST BE
ENTRUSTED TO THE BRANCHES OF THE GOVERNMENT IN CONTROL OF OUR
INTERNATIONAL RELATIONS AND TREATY-MAKING POWERS. 

WE HOLD THAT THE ACT IS NOT INVALID UNDER THE DUE PROCESS CLAUSE. 
THESE ALIENS ARE NOT ENTITLED TO JUDICIAL RELIEF UNLESS SOME OTHER
CONSTITUTIONAL LIMITATION HAS BEEN TRANSGRESSED, TO WHICH INQUIRY WE
TURN. 

                                       II. 

THE FIRST AMENDMENT IS INVOKED AS A BARRIER AGAINST THE ENACTMENT. 
THE CLAIM IS THAT IN JOINING AN ORGANIZATION ADVOCATING OVERTHROW OF
GOVERNMENT BY FORCE AND VIOLENCE THE ALIEN HAS MERELY EXERCISED
FREEDOMS OF SPEECH, PRESS AND ASSEMBLY WHICH THAT AMENDMENT GUARANTEES
TO HIM. 

THE ASSUMPTION IS THAT THE FIRST AMENDMENT ALLOWS CONGRESS TO MAKE NO
DISTINCTION BETWEEN ADVOCATING CHANGE IN THE EXISTING ORDER BY LAWFUL
ELECTIVE PROCESSES AND ADVOCATING CHANGE BY FORCE AND VIOLENCE, THAT
FREEDOM FOR THE ONE INCLUDES FREEDOM FOR THE OTHER, AND THAT WHEN
TEACHING OF VIOLENCE IS DENIED SO IS FREEDOM OF SPEECH. 

OUR CONSTITUTION SOUGHT TO LEAVE NO EXCUSE FOR VIOLENT ATTACK ON THE
STATUS QUO BY PROVIDING A LEGAL ALTERNATIVE - ATTACK BY BALLOT.  TO ARM
ALL MEN FOR ORDERLY CHANGE, THE CONSTITUTION PUT IN THEIR HANDS A RIGHT
TO INFLUENCE THE ELECTORATE BY PRESS, SPEECH AND ASSEMBLY.  THIS MEANS
FREEDOM TO ADVOCATE OR PROMOTE COMMUNISM BY MEANS OF THE BALLOT BOX,
BUT IT DOES NOT INCLUDE THE PRACTICE OR INCITEMENT OF VIOLENCE. 
(FN18) 

TRUE, IT OFTEN IS DIFFICULT TO DETERMINE WHETHER AMBIGUOUS SPEECH IS
ADVOCACY OF POLITICAL METHODS OR SUBTLY SHADES INTO A METHODICAL BUT
PRUDENT INCITEMENT TO VIOLENCE.  COMMUNIST GOVERNMENTS AVOID THE
INQUIRY BY SUPPRESSING EVERYTHING DISTASTEFUL.  SOME WOULD HAVE US
AVOID THE DIFFICULTY BY GOING TO THE OPPOSITE EXTREME OF PERMITTING
INCITEMENT TO VIOLENT OVERTHROW AT LEAST UNLESS IT SEEMS CERTAIN TO
SUCCEED IMMEDIATELY.  WE APPREHEND THAT THE CONSTITUTION ENJOINS UPON
US THE DUTY, HOWEVER DIFFICULT, OF DISTINGUISHING BETWEEN THE TWO. 
DIFFERENT FORMULAE HAVE BEEN APPLIED IN DIFFERENT SITUATIONS AND THE
TEST APPLICABLE TO THE COMMUNIST PARTY HAS BEEN STATED TOO RECENTLY TO
MAKE FURTHER DISCUSSION AT THIS TIME PROFITABLE.  (FN19)  WE THINK THE
FIRST AMENDMENT DOES NOT PREVENT THE DEPORTATION OF THESE ALIENS. 

       III. 

THE REMAINING CLAIM IS THAT THIS ACT CONFLICTS WITH ART. I, SEC. 9,
OF THE CONSTITUTION FORBIDDING EX POST FACTO ENACTMENTS.  AN IMPRESSION
OF RETROACTIVITY RESULTS FROM READING AS A NEW AND ISOLATED ENACTMENT
WHAT IS ACTUALLY A CONTINUATION OF PRIOR LEGISLATION. 

DURING ALL THE YEARS SINCE 1920 CONGRESS HAS MAINTAINED A STANDING
ADMONITION TO ALIENS, ON PAIN OF DEPORTATION, NOT TO BECOME MEMBERS OF
ANY ORGANIZATION THAT ADVOCATES OVERTHROW OF THE UNITED STATES
GOVERNMENT BY FORCE AND VIOLENCE, A CATEGORY REPEATEDLY HELD TO INCLUDE
THE COMMUNIST PARTY.  THESE ALIENS VIOLATED THAT PROHIBITION AND
INCURRED LIABILITY TO DEPORTATION.  THEY WERE NOT CAUGHT UNAWARES BY A
CHANGE OF LAW.  THERE CAN BE NO CONTENTION THAT THEY WERE NOT
ADEQUATELY FOREWARNED BOTH THAT THEIR CONDUCT WAS PROHIBITED AND OF ITS
CONSEQUENCES. 

IN 1939, THIS COURT DECIDED KESSLER V. STRECKER, 307 U.S. 22, IN
WHICH IT WAS HELD THAT CONGRESS, IN THE STATUTE AS IT THEN STOOD, HAD
NOT CLEARLY EXPRESSED AN INTENT THAT COMMUNIST PARTY MEMBERSHIP
REMAINED CAUSE FOR DEPORTATION AFTER IT CEASED.  (FN20)  THE COURT
CONCLUDED THAT IN THE ABSENCE OF SUCH EXPRESSION ONLY CONTEMPORANEOUS
MEMBERSHIP WOULD AUTHORIZE DEPORTATION. 

THE REACTION OF THE COMMUNIST PARTY WAS TO DROP ALIENS FROM
MEMBERSHIP, AT LEAST IN FORM, IN ORDER TO IMMUNIZE THEM FROM THE
CONSEQUENCES OF THEIR PARTY MEMBERSHIP. 

THE REACTION OF CONGRESS WAS THAT THE COURT HAD MISUNDERSTOOD ITS
LEGISLATION.  IN THE ACT HERE BEFORE US IT SUPPLIED UNMISTAKABLE
LANGUAGE THAT PAST VIOLATORS OF ITS PROHIBITIONS CONTINUED TO BE
DEPORTABLE IN SPITE OF RESIGNATION OR EXPULSION FROM THE PARTY.  IT
REGARDED THE FACT THAT AN ALIEN DEFIED OUR LAWS TO JOIN THE COMMUNIST
PARTY AS AN INDICATION THAT HE HAD DEVELOPED LITTLE COMPREHENSION OF
THE PRINCIPLES OR PRACTICE OF REPRESENTATIVE GOVERNMENT OR ELSE WAS
UNWILLING TO ABIDE BY THEM. 

HOWEVER, EVEN IF THE ACT WERE FOUND TO BE RETROACTIVE, TO STRIKE IT
DOWN WOULD REQUIRE US TO OVERRULE THE CONSTRUCTION OF THE EX POST FACTO
PROVISION WHICH HAS BEEN FOLLOWED BY THIS COURT FROM EARLIEST TIMES. 
IT ALWAYS HAS BEEN CONSIDERED THAT THAT WHICH IT FORBIDS IS PENAL
LEGISLATION WHICH IMPOSES OR INCREASES CRIMINAL PUNISHMENT FOR CONDUCT
LAWFUL PREVIOUS TO ITS ENACTMENT.  (FN21) DEPORTATION, HOWEVER SEVERE
ITS CONSEQUENCES, HAS BEEN CONSISTENTLY CLASSIFIED AS A CIVIL RATHER
THAN A CRIMINAL PROCEDURE.  (FN22)  BOTH OF THESE DOCTRINES AS ORIGINAL
PROPOSALS MIGHT BE DEBATABLE, BUT BOTH HAVE BEEN CONSIDERED CLOSED FOR
MANY YEARS AND A BODY OF STATUTE AND DECISIONAL LAW HAS BEEN BUILT UPON
THEM.  IN BUGAJEWITZ V. ADAMS, 228 U.S. 585, 591, MR. JUSTICE HOLMES,
FOR THE COURT, SAID:  "IT IS THOROUGHLY ESTABLISHED THAT CONGRESS HAS
POWER TO ORDER THE DEPORTATION OF ALIENS WHOSE PRESENCE IN THE COUNTRY
IT DEEMS HURTFUL.  THE DETERMINATION BY FACTS THAT MIGHT CONSTITUTE A
CRIME UNDER LOCAL LAW IS NOT A CONVICTION OF CRIME, NOR IS THE
DEPORTATION A PUNISHMENT; IT IS SIMPLY A REFUSAL BY THE GOVERNMENT TO
HARBOR PERSONS WHOM IT DOES NOT WANT.  THE COINCIDENCE OF THE LOCAL
PENAL LAW WITH THE POLICY OF CONGRESS IS AN ACCIDENT  ...  .  THE
PROHIBITION OF EX POST FACTO LAWS IN ARTICLE I, SEC. 9, HAS NO
APPLICATION  ...  AND WITH REGARD TO THE PETITIONER IT IS NOT NECESSARY
TO CONSTRUE THE STATUTE AS HAVING ANY RETROSPECTIVE EFFECT."  LATER,
THE COURT SAID, "IT IS WELL SETTLED THAT DEPORTATION, WHILE IT MAY BE
BURDENSOME AND SEVERE FOR THE ALIEN, IS NOT A PUNISHMENT  ...  .  THE
INHIBITION AGAINST THE PASSAGE OF AN EX POST FACTO LAW BY CONGRESS IN
SEC. 9 OF ARTICLE I OF THE CONSTITUTION APPLIES ONLY TO CRIMINAL LAWS
...  AND NOT TO A DEPORTATION ACT LIKE THIS  ...  ."  MAHLER V. EBY,
264 U.S. 32, 39. 

IT IS URGED AGAINST THE FOREGOING OPINIONS THAT IN A FEW CASES THE EX
POST FACTO PROHIBITION HAD BEEN APPLIED TO WHAT APPEARED TO BE CIVIL
DISABILITIES.  FLETCHER V. PECK, 6 CRANCH 87; CUMMINGS V. MISSOURI, 4
WALL.  277; EX PARTE GARLAND, 4 WALL.  333; PIERCE V. CARSKADON, 16
WALL.  234.  THE COURT HAS SINCE EXPLAINED THAT THOSE CASES PROCEEDED
FROM THE VIEW THAT NOVEL DISABILITIES THERE IMPOSED UPON CITIZENS WERE
REALLY CRIMINAL PENALTIES FOR WHICH CIVIL FORM WAS A DISGUISE.  BURGESS
V. SALMON, 97 U.S. 381, 385.  THOSE CASES WERE KNOWN TO THE JUSTICES
WHO PROMULGATED THE ABOVE-QUOTED OPINIONS BUT HAVE NEVER BEEN
CONSIDERED TO GOVERN DEPORTATION.  THE FACTS OF THIS CASE AFFORD NO
BASIS FOR RECONSIDERING OR MODIFYING THE LONG-SETTLED DOCTRINE. 

IT IS CONTENDED THAT THIS POLICY ALLOWS NO ESCAPE BY REFORMATION.  WE
ARE URGED TO APPLY SOME DOCTRINE OF ATONEMENT AND REDEMPTION.  CONGRESS
MIGHT WELL HAVE DONE SO, BUT IT IS NOT FOR THE JUDICIARY TO USURP THE
FUNCTION OF GRANTING ABSOLUTION OR PARDON.  WE CANNOT DO SO FOR
DEPORTABLE EX-CONVICTS, EVEN THOUGH THEY HAVE SERVED A TERM OF
IMPRISONMENT CALCULATED TO BRING ABOUT THEIR REFORMATION. 

WHEN THE COMMUNIST PARTY AS A MATTER OF PARTY STRATEGY FORMALLY
EXPELLED ALIEN MEMBERS EN MASSE, IT DESTROYED ANY SIGNIFICANCE THAT
DISCONTINUED MEMBERSHIP MIGHT OTHERWISE HAVE AS INDICATION OF CHANGE OF
HEART BY THE INDIVIDUAL.  CONGRESS MAY HAVE BELIEVED THAT THE PARTY
TACTICS THREW UPON THE GOVERNMENT AN ALMOST IMPOSSIBLE BURDEN IF IT
ATTEMPTED TO SEPARATE THOSE WHO SINCERELY RENOUNCED COMMUNIST
PRINCIPLES OF FORCE AND VIOLENCE FROM THOSE WHO LEFT THE PARTY THE
BETTER TO SERVE IT. CONGRESS, EXERCISING THE WIDE DISCRETION THAT IT
ALONE HAS IN THESE MATTERS, DECLINED TO ACCEPT THAT AS THE GOVERNMENT'S
BURDEN. 

WE FIND NONE OF THE CONSTITUTIONAL OBJECTIONS TO THE ACT WELL
FOUNDED.  THE JUDGMENTS ACCORDINGLY ARE AFFIRMED. 

FN1  54 STAT. 670, 8 U.S.C. SEC. 137. 

FN2  90 F. SUPP. 397. 

FN3  187 F.2D 137. 

FN4  PETITIONER HARISIADES AND APPELLANT COLEMAN CONTEND THAT THE
PROCEEDINGS AGAINST THEM MUST BE NULLIFIED FOR FAILURE TO CONFORM TO
THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, 5
U.S.C. SEC. 1001 ET SEQ. HOWEVER, SEC. 12 OF THE ACT, 60 STAT. 244, 5
U.S.C. SEC. 1011, PROVIDES THAT "  ...  NO PROCEDURAL REQUIREMENT SHALL
BE MANDATORY AS TO ANY AGENCY PROCEEDING INITIATED PRIOR TO THE
EFFECTIVE DATE OF SUCH REQUIREMENT."  THE PROCEEDINGS AGAINST
HARISIADES AND COLEMAN WERE INSTITUTED BEFORE THE EFFECTIVE DATE OF THE
ACT.  HARISIADES ALSO CONTENDS THAT, THE ADMINISTRATIVE PROCEDURE ACT
ASIDE, HE WAS DENIED PROCEDURAL DUE PROCESS IN THAT IN HIS 1946-1947
HEARINGS THE SAME INDIVIDUAL ACTED BOTH AS PRESIDING OFFICER AND
EXAMINING OFFICER.  HOWEVER, IT APPEARS THAT THE OFFICER HERE PERFORMED
BOTH FUNCTIONS WITH HARISIADES' CONSENT.  HE, THEREFORE, HAS NO
STANDING TO RAISE THE OBJECTION NOW. 

FN5  40 STAT. 548, AS AMENDED, 8 U.S.C. SEC. 732(A)(13), (16), (17),
(18), (19); 61 STAT. 122, AS AMENDED, 8 U.S.C. SEC. 735.  BUT A
CERTIFICATE OF NATURALIZATION IS SUBJECT TO REVOCATION ON THE GROUND OF
FRAUD OR OTHER ILLEGALITY IN THE PROCUREMENT.  54 STAT. 1158, 8 U.S.C.
SEC. 738; KNAUER V. UNITED STATES, 328 U.S. 654. 

FN6  SEC. 2 OF THE SELECTIVE DRAFT ACT OF 1917, 40 STAT. 76, AS
AMENDED, 50 U.S.C. APP.  SEC. 202; SEC. 3 OF THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940, 54 STAT. 885, AS AMENDED, 50 U.S.C. APP. SEC. 303;
SEC. 4(A) OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 604, AS
AMENDED, 50 U.S.C. APP. SEC. 454(A).  CF. MOSER V. UNITED STATES, 341
U.S. 41. 

FN7  ARTICLE 23, 1907 HAGUE CONVENTION, RESPECTING THE LAWS AND
CUSTOMS OF WAR ON LAND, 36 STAT. 2301-2302. 

FN8  BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD, 64. 

FN9  THIS COURT HAS HELD THAT THE CONSTITUTION ASSURES HIM A LARGE
MEASURE OF EQUAL ECONOMIC OPPORTUNITY, YICK WO V. HOPKINS, 118 U.S.
356; TRUAX V. RAICH, 239 U.S. 33; HE MAY INVOKE THE WRIT OF HABEAS
CORPUS TO PROTECT HIS PERSONAL LIBERTY, NISHIMURA EKIU V. UNITED
STATES, 142 U.S. 651, 660; IN CRIMINAL PROCEEDINGS AGAINST HIM HE MUST
BE ACCORDED THE PROTECTIONS OF THE FIFTH AND SIXTH AMENDMENTS, WONG
WING V. UNITED STATES, 163 U.S. 228; AND, UNLESS HE IS AN ENEMY ALIEN,
HIS PROPERTY CANNOT BE TAKEN WITHOUT JUST COMPENSATION.  RUSSIAN
VOLUNTEER FLEET V. UNITED STATES, 282 U.S.481. 

FN10  HE CANNOT STAND FOR ELECTION TO MANY PUBLIC OFFICES.  FOR
INSTANCE, ART. I, SEC. 2, CL. 2, SEC. 3, CL. 3, OF THE CONSTITUTION
RESPECTIVELY REQUIRE THAT CANDIDATES FOR ELECTION TO THE HOUSE OF
REPRESENTATIVES AND SENATE BE CITIZENS.  SEE BORCHARD, DIPLOMATIC
PROTECTION OF CITIZENS ABROAD, 63.   THE STATES, TO WHOM IS ENTRUSTED
THE AUTHORITY TO SET QUALIFICATIONS OF VOTERS, FOR MOST PURPOSES
REQUIRE CITIZENSHIP AS A CONDITION PRECEDENT TO THE VOTING FRANCHISE. 
THE ALIEN'S RIGHT TO TRAVEL TEMPORARILY OUTSIDE THE UNITED STATES IS
SUBJECT TO RESTRICTIONS NOT APPLICABLE TO CITIZENS.  43 STAT. 158, AS
AMENDED, 8 U.S.C. SEC. 210.  IF HE IS ARRESTED ON A CHARGE OF ENTERING
THE COUNTRY ILLEGALLY, THE BURDEN IS HIS TO PROVE "HIS RIGHT TO ENTER
OR REMAIN" - NO PRESUMPTIONS ACCRUE IN HIS FAVOR BY HIS PRESENCE HERE. 
39 STAT. 889, AS AMENDED, 8 U.S.C. SEC. 155(A). 

FN11  FONG YUE TING V. UNITED STATES, 149 U.S. 698, 707, 711-714,
730; LEM MOON SING V. UNITED STATES, 158 U.S. 538, 545-546; LI SING V.
UNITED STATES, 180 U.S. 486, 494-495; FOK YUNG YO V. UNITED STATES, 185
U.S. 296, 302; THE JAPANESE IMMIGRANT CASE, 189 U.S. 86, 97; UNITED
STATES V. JU TOY, 198 U.S. 253, 261; ZAKONAITE V. WOLF, 226 U.S. 272,
275; TIACO V. FORBES, 228 U.S. 549, 556-557; BUGAJEWITZ V. ADAMS, 228
U.S. 585, 591. 

FN12  40 STAT. 531, 50 U.S.C. SEC. 21. 

FN13  40 STAT. 411, 50 U.S.C. APP. SEC. 2(C); 40 STAT. 415, 50 U.S.C.
APP. SEC. 6; 62 STAT. 1246, 50 U.S.C. APP. SEC. 39; GUESSEFELDT V.
MCGRATH, 342 U.S. 308. 

FN14  "  ...  IN STRICT LAW, A STATE CAN EXPEL EVEN DOMICILED ALIENS
WITHOUT SO MUCH AS GIVING THE REASONS, THE REFUSAL OF THE EXPELLING
STATE TO SUPPLY THE REASONS FOR EXPULSION TO THE HOME STATE OF THE
EXPELLED ALIEN DOES NOT CONSTITUTE AN ILLEGAL, BUT ONLY A VERY
UNFRIENDLY ACT."  1 OPPENHEIM, INTERNATIONAL LAW (3D ED., ROXBURGH,
1920), 498-502, AT 499.  BUT CF. 1 OPPENHEIM, INTERNATIONAL LAW (7TH
ED., LAUTERPACHT, 1948), 630-634, AT 631.  SEE ALSO 4 MOORE,
INTERNATIONAL LAW DIGEST, 67-96, CITING EXAMPLES; WHEATON'S
INTERNATIONAL LAW (6TH ED., KEITH, 1929), 210-211; FONG YUE TING V.
UNITED STATES, 149 U.S. 698. 

FN15  AN OPEN DOOR TO THE IMMIGRANT WAS THE EARLY FEDERAL POLICY.  IT
BEGAN TO CLOSE IN 1884 WHEN ORIENTALS WERE EXCLUDED.  23 STAT. 115. 
THEREAFTER, CONGRESS HAD INTERMITTENTLY ADDED TO THE EXCLUDED CLASSES,
AND AS REJECTIONS AT THE BORDER MULTIPLIED ILLEGAL ENTRIES INCREASED. 
TO COMBAT THESE, RECOURSE WAS HAD TO DEPORTATION IN THE ACT OF 1891, 26
STAT.  1086.  HOWEVER, THAT ACT COULD BE APPLIED TO AN ILLEGAL ENTRANT
ONLY WITHIN ONE YEAR AFTER HIS ENTRY.  ALTHOUGH THAT TIME LIMITATION
WAS SUBSEQUENTLY EXTENDED, 32 STAT. 1218; 34 STAT. 904-905, UNTIL AFTER
THE TURN OF THE CENTURY EXPULSION WAS USED ONLY AS AN AUXILIARY REMEDY
TO ENFORCE EXCLUSION.    CONGRESS, IN 1907, PROVIDED FOR DEPORTATION OF
LEGALLY RESIDENT ALIENS, BUT THE STATUTE REACHED ONLY WOMEN FOUND
ENGAGING IN PROSTITUTION, AND DEPORTATION PROCEEDINGS WERE AUTHORIZED
ONLY WITHIN THREE YEARS AFTER ENTRY. 

FROM THOSE EARLY STEPS, THE POLICY HAS BEEN EXTENDED.  IN 1910, NEW
CLASSES OF RESIDENT ALIENS WERE LISTED FOR DEPORTATION, INCLUDING FOR
THE FIRST TIME POLITICAL OFFENDERS SUCH AS ANARCHISTS AND THOSE
BELIEVING IN OR ADVOCATING THE OVERTHROW OF THE GOVERNMENT BY FORCE AND
VIOLENCE.  36 STAT. 264.  IN 1917, ALIENS WHO WERE FOUND AFTER ENTRY TO
BE ADVOCATING ANARCHIST DOCTRINES OR THE OVERTHROW OF THE GOVERNMENT BY
FORCE AND VIOLENCE WERE MADE SUBJECT TO DEPORTATION, A FIVE-YEAR TIME
LIMIT BEING RETAINED.  39 STAT. 889.  A YEAR LATER, DEPORTABILITY
BECAUSE OF MEMBERSHIP IN DESCRIBED SUBVERSIVE ORGANIZATIONS WAS
INTRODUCED.  40 STAT. 1012; 41 STAT. 1008.  WHEN THIS COURT, IN 1939,
HELD THAT THAT ACT REACHED ONLY ALIENS WHO WERE MEMBERS WHEN THE
PROCEEDINGS AGAINST THEM WERE INSTITUTED, KESSLER V, STRECKER, 307 U.S.
22, CONGRESS PROMPTLY ENACTED THE STATUTE BEFORE US, MAKING DEPORTATION
MANDATORY FOR ALL ALIENS WHO AT ANY TIME PAST HAVE BEEN MEMBERS OF THE
PROSCRIBED ORGANIZATIONS.  IN SO DOING IT ALSO ELIMINATED THE TIME
LIMIT FOR INSTITUTION OF PROCEEDINGS THEREUNDER.  ALIEN REGISTRATION
ACT, 1940, 54 STAT. 670, 673. 

FN16  UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304, 319-322;
CHICAGO & SOUTHERN AIR LINES, INC. V. WATERMAN STEAMSHIP CORP., 333
U.S. 103, 111; U.S. CONST., ART. IV, SEC. 4; LUTHER V. BORDEN, 7 HOW. 
1, 42; PACIFIC TELEPHONE CO. V. OREGON, 223 U.S.118; MARSHALL V. DYE,
231 U.S. 250.  IN RESPECT TO THE WAR POWER OVER EVEN CITIZENS, SEE
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 92; KOREMATSU V. UNITED
STATES, 323 U.S. 214, 217-218.  THAT ENGLISH COURTS ALSO REFUSE TO
REVIEW GROUNDS FOR DEPORTATION ORDERS APPEARS FROM REX V. HOME
SECRETARY; EX PARTE BRESSLER, 27 COX CR. CA. 655. 

FN17  HIRABAYASHI V. UNITED STATES, 320 U.S. 81; KOREMATSU V. UNITED
STATES, 323 U.S. 214. 

FN18  DENNIS V. UNITED STATES, 341 U.S. 494. 

FN19  IBID. 

FN20  40 STAT. 1012. 

FN21  CALDER V. BULL, 3 DALL.  386, 390; JOHANNESSEN V. UNITED
STATES, 225 U.S. 227, 242. 

FN22  FONG YUE TING V. UNITED STATES, 149 U.S. 698, 730; BUGAJEWITZ
V. ADAMS, 228 U.S. 585, 591; BILOKUMSKY V. TOD, 263 U.S. 149, 154. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IT IS NOT FOR THIS COURT TO RESHAPE A WORLD ORDER BASED ON
POLITICALLY SOVEREIGN STATES.  IN SUCH AN INTERNATIONAL ORDERING OF THE
WORLD A NATIONAL STATE IMPLIES A SPECIAL RELATIONSHIP OF ONE BODY OF
PEOPLE, I.E., CITIZENS OF THAT STATE, WHEREBY THE CITIZENS OF EACH
STATE ARE ALIENS IN RELATION TO EVERY OTHER STATE.  EVER SINCE NATIONAL
STATES HAVE COME INTO BEING, THE RIGHT OF PEOPLE TO ENJOY THE
HOSPITALITY OF A STATE OF WHICH THEY ARE NOT CITIZENS HAS BEEN A MATTER
OF POLITICAL DETERMINATION BY EACH STATE.  (I PUT TO ONE SIDE THE
ODDITIES OF DUAL CITIZENSHIP.)  THOUGH AS A MATTER OF POLITICAL OUTLOOK
AND ECONOMIC NEED THIS COUNTRY HAS TRADITIONALLY WELCOMED ALIENS TO
COME TO ITS SHORES, IT HAS DONE SO EXCLUSIVELY AS A MATTER OF POLITICAL
OUTLOOK AND NATIONAL SELF-INTEREST.  THIS POLICY HAS BEEN A POLITICAL
POLICY, BELONGING TO THE POLITICAL BRANCH OF THE GOVERNMENT WHOLLY
OUTSIDE THE CONCERN AND THE COMPETENCE OF THE JUDICIARY. 

ACCORDINGLY, WHEN THIS POLICY CHANGED AND THE POLITICAL AND LAW
MAKING BRANCH OF THIS GOVERNMENT, THE CONGRESS, DECIDED TO RESTRICT THE
RIGHT OF IMMIGRATION ABOUT SEVENTY YEARS AGO, THIS COURT THEREUPON AND
EVER SINCE HAS RECOGNIZED THAT THE DETERMINATION OF A SELECTIVE AND
EXCLUSIONARY IMMIGRATION POLICY WAS FOR THE CONGRESS AND NOT FOR THE
JUDICIARY.  THE CONDITIONS FOR ENTRY OF EVERY ALIEN, THE PARTICULAR
CLASSES OF ALIENS THAT SHALL BE DENIED ENTRY ALTOGETHER, THE BASIS FOR
DETERMINING SUCH CLASSIFICATION, THE RIGHT TO TERMINATE HOSPITALITY TO
ALIENS, THE GROUNDS ON WHICH SUCH DETERMINATION SHALL BE BASED, HAVE
BEEN RECOGNIZED AS MATTERS SOLELY FOR THE RESPONSIBILITY OF THE
CONGRESS AND WHOLLY OUTSIDE THE POWER OF THIS COURT TO CONTROL. 

THE COURT'S ACKNOWLEDGMENT OF THE SOLE RESPONSIBILITY OF CONGRESS FOR
THESE MATTERS HAS BEEN MADE POSSIBLE BY JUSTICES WHOSE CULTURAL
OUTLOOK, WHOSE BREADTH OF VIEW AND ROBUST TOLERANCE WERE NOT EXCEEDED
BY THOSE OF JEFFERSON.  IN THEIR PERSONAL VIEWS, LIBERTARIANS LIKE MR.
JUSTICE HOLMES AND MR. JUSTICE BRANDEIS DOUBTLESS DISAPPROVED OF SOME
OF THESE POLICIES, DEPARTURES AS THEY WERE FROM THE BEST TRADITIONS OF
THIS COUNTRY AND BASED AS THEY HAVE BEEN IN PART ON DISCREDITED RACIAL
THEORIES OR MANIPULATION OF FIGURES IN FORMULATING WHAT IS KNOWN AS THE
QUOTA SYSTEM.  BUT WHETHER IMMIGRATION LAWS HAVE BEEN CRUDE AND CRUEL,
WHETHER THEY MAY HAVE REFLECTED XENOPHOBIA IN GENERAL OR ANTI-SEMITISM
OR ANTI-CATHOLICISM, THE RESPONSIBILITY BELONGS TO CONGRESS.  COURTS DO
ENFORCE THE REQUIREMENTS IMPOSED BY CONGRESS UPON OFFICIALS IN
ADMINISTERING IMMIGRATION LAWS, E.G., KWOCK JAN FAT V. WHITE, 253 U.S.
454, AND THE REQUIREMENT OF DUE PROCESS MAY ENTAIL CERTAIN PROCEDURAL
OBSERVANCES.  E.G., NG FUNG HO V. WHITE, 259 U.S. 276.  BUT THE
UNDERLYING POLICIES OF WHAT CLASSES OF ALIENS SHALL BE ALLOWED TO ENTER
AND WHAT CLASSES OF ALIENS SHALL BE ALLOWED TO STAY, ARE FOR CONGRESS
EXCLUSIVELY TO DETERMINE EVEN THOUGH SUCH DETERMINATION MAY BE DEEMED
TO OFFEND AMERICAN TRADITIONS AND MAY, AS HAS BEEN THE CASE, JEOPARDIZE
PEACE. 

IN RECOGNIZING THIS POWER AND THIS RESPONSIBILITY OF CONGRESS, ONE
DOES NOT IN THE REMOTEST DEGREE ALIGN ONESELF WITH FEARS UNWORTHY OF
THE AMERICAN SPIRIT OR WITH HOSTILITY TO THE BRACING AIR OF THE FREE
SPIRIT.  ONE MERELY RECOGNIZES THAT THE PLACE TO RESIST UNWISE OR CRUEL
LEGISLATION TOUCHING ALIENS IS THE CONGRESS, NOT THIS COURT. 

I, THEREFORE, JOIN IN THE COURT'S OPINION IN THESE CASES. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THERE ARE TWO POSSIBLE BASES FOR SUSTAINING THIS ACT: 

(1)  A PERSON WHO WAS ONCE A COMMUNIST IS TAINTED FOR ALL TIME AND
FOREVER DANGEROUS TO OUR SOCIETY; OR: 

(2)  PUNISHMENT THROUGH BANISHMENT FROM THE COUNTRY MAY BE PLACED
UPON AN ALIEN NOT FOR WHAT HE DID, BUT FOR WHAT HIS POLITICAL VIEWS
ONCE WERE. 

EACH OF THESE IS FOREIGN TO OUR PHILOSOPHY.  WE REPUDIATE OUR
TRADITIONS OF TOLERANCE AND OUR ARTICLES OF FAITH BASED UPON THE BILL
OF RIGHTS WHEN WE BOW TO THEM BY SUSTAINING AN ACT OF CONGRESS WHICH
HAS THEM AS A FOUNDATION. 

THE VIEW THAT THE POWER OF CONGRESS TO DEPORT ALIENS IS ABSOLUTE AND
MAY BE EXERCISED FOR ANY REASON WHICH CONGRESS DEEMS APPROPRIATE RESTS
ON FONG YUE TING V. UNITED STATES, 149 U.S. 698, DECIDED IN 1893 BY A
SIX-TO-THREE VOTE.  THAT DECISION SEEMS TO ME TO BE INCONSISTENT WITH
THE PHILOSOPHY OF CONSTITUTIONAL LAW WHICH WE HAVE DEVELOPED FOR THE
PROTECTION OF RESIDENT ALIENS.  WE HAVE LONG HELD THAT A RESIDENT ALIEN
IS A "PERSON" WITHIN THE MEANING OF THE FIFTH AND THE FOURTEENTH
AMENDMENTS.  HE THEREFORE MAY NOT BE DEPRIVED EITHER BY THE NATIONAL
GOVERNMENT OR BY ANY STATE OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE
PROCESS OF LAW.  NOR MAY HE BE DENIED THE EQUAL PROTECTION OF THE
LAWS.  A STATE WAS NOT ALLOWED TO EXCLUDE AN ALIEN FROM THE LAUNDRY
BUSINESS BECAUSE HE WAS A CHINESE, (FN1) NOR DISCHARGE HIM FROM
EMPLOYMENT BECAUSE HE WAS NOT A CITIZEN, (FN2) NOR DEPRIVE HIM OF THE
RIGHT TO FISH BECAUSE HE WAS A JAPANESE INELIGIBLE TO CITIZENSHIP. 
(FN3)  AN ALIEN'S PROPERTY (PROVIDED HE IS NOT AN ENEMY ALIEN), MAY NOT
BE TAKEN WITHOUT JUST COMPENSATION.  (FN4)  HE IS ENTITLED TO HABEAS
CORPUS TO TEST THE LEGALITY OF HIS RESTRAINT, (FN5) TO THE PROTECTION
OF THE FIFTH AND SIXTH AMENDMENTS IN CRIMINAL TRIALS, (FN6) AND TO THE
RIGHT OF FREE SPEECH AS GUARANTEED BY THE FIRST AMENDMENT.  (FN7) 

AN ALIEN, WHO IS ASSIMILATED IN OUR SOCIETY, IS TREATED AS A CITIZEN
SO FAR AS HIS PROPERTY AND HIS LIBERTY ARE CONCERNED.  HE CAN LIVE AND
WORK HERE AND RAISE A FAMILY, SECURE IN THE PERSONAL GUARANTEES EVERY
RESIDENT HAS AND SAFE FROM DISCRIMINATIONS THAT MIGHT BE LEVELED
AGAINST HIM BECAUSE HE WAS BORN ABROAD.  THOSE GUARANTEES OF LIBERTY
AND LIVELIHOOD ARE THE ESSENCE OF THE FREEDOM WHICH THIS COUNTRY FROM
THE BEGINNING HAS OFFERED THE PEOPLE OF ALL LANDS.  IF THOSE RIGHTS,
GREAT AS THEY ARE, HAVE CONSTITUTIONAL PROTECTION, I THINK THE MORE
IMPORTANT ONE - THE RIGHT TO REMAIN HERE - HAS A LIKE DIGNITY. 

THE POWER OF CONGRESS TO EXCLUDE, ADMIT, OR DEPORT ALIENS FLOWS FROM
SOVEREIGNTY ITSELF AND FROM THE POWER "TO ESTABLISH AN UNIFORM RULE OF
NATURALIZATION."  U.S. CONST., ART. I, SEC. 8, CL. 4.  THE POWER OF
DEPORTATION IS THEREFORE AN IMPLIED ONE.  THE RIGHT TO LIFE AND LIBERTY
IS AN EXPRESS ONE.  WHY THIS IMPLIED POWER SHOULD BE GIVEN PRIORITY
OVER THE EXPRESS GUARANTEE OF THE FIFTH AMENDMENT HAS NEVER BEEN
SATISFACTORILY ANSWERED.  MR. JUSTICE BREWER'S DISSENT IN FONG YUE TING
V. UNITED STATES, SUPRA, PP.  737-738, GROWS IN POWER WITH THE PASSING
YEARS:  "IT IS SAID THAT THE POWER HERE ASSERTED IS INHERENT IN
SOVEREIGNTY.  THIS DOCTRINE OF POWERS INHERENT IN SOVEREIGNTY IS ONE
BOTH INDEFINITE AND DANGEROUS.  WHERE ARE THE LIMITS TO SUCH POWERS TO
BE FOUND, AND BY WHOM ARE THEY TO BE PRONOUNCED?  IS IT WITHIN
LEGISLATIVE CAPACITY TO DECLARE THE LIMITS?  IF SO, THEN THE MERE
ASSERTION OF AN INHERENT POWER CREATES IT, AND DESPOTISM EXISTS.  MAY
THE COURTS ESTABLISH THE BOUNDARIES?  WHENCE DO THEY OBTAIN THE
AUTHORITY FOR THIS?  SHALL THEY LOOK TO THE PRACTICES OF OTHER NATIONS
TO ASCERTAIN THE LIMITS?  THE GOVERNMENTS OF OTHER NATIONS HAVE ELASTIC
POWERS - OURS IS FIXED AND BOUNDED BY A WRITTEN CONSTITUTION.  THE
EXPULSION OF A RACE MAY BE WITHIN THE INHERENT POWERS OF A DESPOTISM. 
HISTORY, BEFORE THE ADOPTION OF THIS CONSTITUTION, WAS NOT DESTITUTE OF
EXAMPLES OF THE EXERCISE OF SUCH A POWER; AND ITS FRAMERS WERE FAMILIAR
WITH HISTORY, AND WISELY, AS IT SEEMS TO ME, THEY GAVE TO THIS
GOVERNMENT NO GENERAL POWER TO BANISH.  BANISHMENT MAY BE RESORTED TO
AS PUNISHMENT FOR CRIME; BUT AMONG THE POWERS RESERVED TO THE PEOPLE
AND NOT DELEGATED TO THE GOVERNMENT IS THAT OF DETERMINING WHETHER
WHOLE CLASSES IN OUR MIDST SHALL, FOR NO CRIME BUT THAT OF THEIR RACE
AND BIRTHPLACE, BE DRIVEN FROM OUR TERRITORY." 

THE RIGHT TO BE IMMUNE FROM ARBITRARY DECREES OF BANISHMENT CERTAINLY
MAY BE MORE IMPORTANT TO "LIBERTY" THAN THE CIVIL RIGHTS WHICH ALL
ALIENS ENJOY WHEN THEY RESIDE HERE.  UNLESS THEY ARE FREE FROM
ARBITRARY BANISHMENT, THE "LIBERTY" THEY ENJOY WHILE THEY LIVE HERE IS
INDEED ILLUSORY.  BANISHMENT IS PUNISHMENT IN THE PRACTICAL SENSE.  IT
MAY DEPRIVE A MAN AND HIS FAMILY OF ALL THAT MAKES LIFE WORTH WHILE. 
THOSE WHO HAVE THEIR ROOTS HERE HAVE AN IMPORTANT STAKE IN THIS
COUNTRY.  THEIR PLANS FOR THEMSELVES AND THEIR HOPES FOR THEIR CHILDREN
ALL DEPEND ON THEIR RIGHT TO STAY.  IF THEY ARE UPROOTED AND SENT TO
LANDS NO LONGER KNOWN TO THEM, NO LONGER HOSPITABLE, THEY BECOME
DISPLACED, HOMELESS PEOPLE CONDEMNED TO BITTERNESS AND DESPAIR. 

THIS DRASTIC STEP MAY AT TIMES BE NECESSARY IN ORDER TO PROTECT THE
NATIONAL INTEREST.  THERE MAY BE OCCASIONS WHEN THE CONTINUED PRESENCE
OF AN ALIEN, NO MATTER HOW LONG HE MAY HAVE BEEN HERE, WOULD BE HOSTILE
TO THE SAFETY OR WELFARE OF THE NATION DUE TO THE NATURE OF HIS
CONDUCT.  BUT UNLESS SUCH CONDITION IS SHOWN, I WOULD STAY THE HAND OF
THE GOVERNMENT AND LET THOSE TO WHOM WE HAVE EXTENDED OUR HOSPITALITY
AND WHO HAVE BECOME MEMBERS OF OUR COMMUNITIES REMAIN HERE AND ENJOY
THE LIFE AND LIBERTY WHICH THE CONSTITUTION GUARANTEES. 

CONGRESS HAS NOT PROCEEDED BY THAT STANDARD.  IT HAS ORDERED THESE
ALIENS DEPORTED NOT FOR WHAT THEY ARE BUT FOR WHAT THEY ONCE WERE. 
PERHAPS A HEARING WOULD SHOW THAT THEY CONTINUE TO BE PEOPLE DANGEROUS
AND HOSTILE TO US.  BUT THE PRINCIPLE OF FORGIVENESS AND THE DOCTRINE
OF REDEMPTION ARE TOO DEEP IN OUR PHILOSOPHY TO ADMIT THAT THERE IS NO
RETURN FOR THOSE WHO HAVE ONCE ERRED. 

FN1  YICK WO V. HOPKINS, 118 U.S. 356. 

FN2  TRUAX V. RAICH, 239 U.S. 33. 

FN3  TAKAHASHI V. FISH & GAME COMMISSION, 334 U.S. 410. 

FN4  RUSSIAN VOLUNTEER FLEET V. UNITED STATES, 282 U.S. 481. 

FN5  EKIU V. UNITED STATES, 142 U.S. 651, 660. 

FN6  WONG WING V. UNITED STATES, 163 U.S. 228. 

FN7  BRIDGES V. CALIFORNIA, 314 U.S. 252. 
..END :









SACHER V. UNITED STATES 343 U.S.1 


NO. 201, OCT. TERM, 1950.  ARGUED JANUARY 9, 1952.  - DECIDED MARCH 10,
1952.  - 182 F.2D 416, AFFIRMED. 


1.  RULE 42(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE ALLOWS A
TRIAL JUDGE, UPON THE OCCURRENCE IN HIS PRESENCE OF A CONTEMPT,
IMMEDIATELY AND SUMMARILY TO PUNISH IT, IF, IN HIS OPINION, DELAY WILL
PREJUDICE THE TRIAL.  IF HE BELIEVES THE EXIGENCIES OF THE TRIAL
REQUIRE THAT HE DEFER JUDGMENT UNTIL ITS COMPLETION, HE MAY DO SO
WITHOUT EXTINQUISHING HIS POWER.  P. 11. 

2.  DURING A TURBULENT NINE-MONTHS' TRIAL OF ELEVEN COMMUNIST PARTY
LEADERS ON CHARGES OF VIOLATING THE SMITH ACT, DEFENSE COUNSEL, IN THE
PRESENCE OF THE TRIAL JUDGE AND IN THE FACE OF REPEATED WARNINGS FROM
HIM THAT THEIR CONDUCT WAS REGARDED AS CONTEMPTUOUS, PERSISTED IN A
COURSE OF CONDUCT THAT WAS HIGHLY CONTEMPTUOUS AND THAT TENDED TO
DISRUPT AND DELAY THE TRIAL AND POSSIBLY TO CAUSE A MISTRIAL.  UPON
RECEIVING THE VERDICT OF THE JURY AT THE CONCLUSION OF THE TRIAL, THE
TRIAL JUDGE, WITHOUT FURTHER NOTICE OR HEARING, IMMEDIATELY FILED A
CERTIFICATE UNDER RULE 42(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
SUMMARILY FINDING SUCH COUNSEL GUILTY OF CRIMINAL CONTEMPT AND
SENTENCING THEM TO IMPRISONMENT.  HELD:  THIS ACTION WAS WITHIN THE
POWER OF THE TRIAL JUDGE UNDER RULE 42(A).  PP. 3-11. 

(A)  THE WORD "SUMMARY" AS USED IN RULE 42(A) DOES NOT REFER TO THE
TIMING OF THE ACTION WITH REFERENCE TO THE OFFENSE BUT REFERS TO A
PROCEDURE WHICH DISPENSES WITH THE FORMALITY, DELAY AND DIGRESSION THAT
WOULD RESULT FROM THE ISSUANCE OF PROCESS, SERVICE OF COMPLAINT AND
ANSWER, HOLDING HEARINGS, TAKING EVIDENCE, LISTENING TO ARGUMENTS,
AWAITING BRIEFS, SUBMISSION OF FINDINGS, AND ALL THAT GOES WITH A
CONVENTIONAL COURT TRIAL.  P. 9. 

(B)  NEITHER THE LANGUAGE OF THE RULE NOR THE REASONS FOR PERMITTING
STRAIGHTWAY EXERCISE OF SUMMARY POWER REQUIRES IMMEDIATE ACTION.  PP. 9
10. 

(C)  THE OVERRIDING CONSIDERATION IS THE INTEGRITY AND EFFICIENCY OF
THE TRIAL PROCESS; AND, IF THE JUDGE DEEMS IMMEDIATE ACTION
INEXPEDIENT, HE SHOULD BE ALLOWED DISCRETION TO FOLLOW THE PROCEDURE
TAKEN IN THIS CASE.  P. 10. 

3.  IT IS NOT NECESSARY FOR THIS COURT TO CONSIDER THE TRIAL JUDGE'S
CHARGE THAT PETITIONERS DELIBERATELY ENTERED INTO AN AGREEMENT TO
IMPAIR HIS HEALTH, SINCE THE COURT OF APPEALS FOUND THE JUDGMENT AMPLY
SUSTAINED WITHOUT THIS COUNT, THE SENTENCES RAN CONCURRENTLY, AND
REVERSAL ON ONE COUNT DOES NOT REQUIRE REVERSAL ON THE OTHERS.  P. 11. 

4.  RULE 42(A) DOES NOT DENY A TRIAL JUDGE POWER SUMMARILY TO PUNISH
A CONTEMPT THAT IS PERSONAL TO HIMSELF, EVEN WHEN IT IS NOT NECESSARY
TO FORESTALL ABORTION OF THE TRIAL.  PP. 11-12. 

5.  THE SENTENCES IMPOSED IN THIS CASE NEED NOT INTIMIDATE LAWYERS IN
THE PROPER PERFORMANCE OF THEIR PROFESSIONAL DUTIES AS TRIAL COUNSEL
FOR THEY KNOW THAT FROM ANY SUMMARY CONVICTION UNDER RULE 42(A) THEY
HAVE AN APPEAL ON LAW AND FACT TO THE COURT OF APPEALS.  PP. 12-13. 

6.  IF ITS AID BE NEEDED, THIS COURT WILL UNHESITATINGLY PROTECT
COUNSEL IN FEARLESS, VIGOROUS AND EFFECTIVE PERFORMANCE OF EVERY DUTY
PERTAINING TO THE OFFICE OF THE ADVOCATE ON BEHALF OF ANY PERSON
WHATSOEVER.  PP. 13-14. 

SACHER ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

AT THE CONCLUSION OF THE TRIAL IN DENNIS V. UNITED STATES, 341 U.S.
494, THE TRIAL COURT UNDER RULE 42(A) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, SUMMARILY ADJUDGED PETITIONERS GUILTY OF CONTEMPT WHILE
ACTING AS COUNSEL FOR THE DEFENDANTS DURING THE TRIAL AND SENTENCED
THEM TO IMPRISONMENT.  THE COURT OF APPEALS REVERSED SOME
SPECIFICATIONS OF CONTEMPT BUT AFFIRMED THE CONVICTION AND SENTENCES. 
182 F.2D 416.  THIS COURT DENIED CERTIORARI, 341 U.S. 952, BUT LATER
GRANTED CERTIORARI LIMITED TO ONE QUESTION.  342 U.S. 858.  AFFIRMED,
P. 14. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

AFTER A TURBULENT NINE MONTHS OF TRIAL, ELEVEN COMMUNIST PARTY
LEADERS WERE CONVICTED OF VIOLATING THE SMITH ACT.  (FN1)  ON RECEIVING
THE VERDICT, THE TRIAL JUDGE AT ONCE FILED A CERTIFICATE UNDER RULE
42(A), FED. RULES CRIM. PROC., FINDING PETITIONERS GUILTY OF CRIMINAL
CONTEMPT AND IMPOSING VARIOUS JAIL TERMS UP TO SIX MONTHS.  THOSE
SENTENCED WERE DEFENSE COUNSEL, WITH THE EXCEPTION OF ONE DEFENDANT WHO
HAD ELECTED TO CONDUCT HIS OWN CASE. 

THE COURT OF APPEALS REVIEWED THE JUDGE'S ACTION, BOTH ON FACTS AND
LAW, REVERSED SOME SPECIFICATIONS OF CONTEMPT, BUT AFFIRMED THE
CONVICTION AND SENTENCES.  (FN2)  JUDGE AUGUSTUS HAND, WHO FAVORED
AFFIRMANCE ON ALL CHARGES, PRONOUNCED PETITIONERS' CONDUCT CONCERTED
AND WILFULLY OBSTRUCTIVE AND DESCRIBED IT AS INCLUDING "PERSISTENT
OBSTRUCTIVE COLLOQUIES, OBJECTIONS, ARGUMENTS, AND MANY GROUNDLESS
CHARGES AGAINST THE COURT  ...  ."  (FN3)  JUDGE FRANK, WHO FAVORED
REVERSAL OF THOSE SPECIFICATIONS WHICH WERE REVERSED, DECLARED THAT THE
COURT AFFIRMED THE REMAINING ONES "ONLY BECAUSE OF THE LAWYERS'
OUTRAGEOUS CONDUCT - CONDUCT OF A KIND WHICH NO LAWYER OWES HIS CLIENT,
WHICH CANNOT EVER BE JUSTIFIED, AND WHICH WAS NEVER EMPLOYED BY THOSE
ADVOCATES, FOR MINORITIES OR FOR THE UNPOPULAR, WHOSE COURAGE HAS MADE
LAWYERDOM PROUD."  (FN4)  JUDGE CLARK, WHO WOULD HAVE REVERSED THE
ENTIRE JUDGMENT BECAUSE OF THE PROCEDURE UNDER CONSIDERATION BY US,
BEGAN HIS OPINION: "TO ONE SCHOOLED IN ANGLO-SAXON TRADITIONS OF LEGAL
DECORUM, THE RESISTANCE PRESSED BY THESE APPELLANTS ON VARIOUS
OCCASIONS TO THE RULINGS OF THE TRIAL JUDGE NECESSARILY APPEARS
ABOMINABLE."  (FN5) 

THE ACTUAL EFFECT OF PETITIONERS' CONDUCT ON THE TRIAL AND ON THE
BURDEN OF SUBSEQUENT COURTS IN REVIEWING AN UNNECESSARILY LARGE RECORD
ALSO WAS NOTED BY A DIFFERENTLY COMPOSED COURT OF APPEALS WHEN THEY
SOUGHT REVERSAL OF THEIR CLIENTS' CONVICTION AND ASSIGNED MISCONDUCT
AND BIAS OF THE TRIAL JUDGE AS ONE OF THE GROUNDS.  THE COURT FOUND
THAT IT COULD NOT CONSIDER THE ACCUSATIONS AGAINST THE JUDGE SEPARATELY
FROM BEHAVIOR OF COUNSEL.  IT UNANIMOUSLY FOUND THEIR CHARGES AGAINST
THE TRIAL JUDGE "COMPLETELY UNCONVINCING," AND OF THEIR OWN CONDUCT
SAID, "ALL WAS DONE THAT COULD CONTRIBUTE TO MAKE IMPOSSIBLE AN ORDERLY
AND SPEEDY DISPATCH OF THE CASE  ...  ."  (FN6)  THE NATURE OF THIS
OBSTRUCTION WAS THUS DESCRIBED: 

"THE RECORD DISCLOSES A JUDGE, SORELY TRIED FOR MANY MONTHS OF
TURMOIL, CONSTANTLY PROVOKED BY USELESS BICKERING, EXPOSED TO OFFENSIVE
SLIGHTS AND INSULTS, HARRIED WITH INTERMINABLE REPETITION, WHO, IF AT
TIMES HE DID NOT CONDUCT HIMSELF WITH THE IMPERTURBABILITY OF A
RHADAMANTHUS, SHOWED CONSIDERABLY GREATER SELF-CONTROL AND FORBEARANCE
THAN IT IS GIVEN TO MOST JUDGES TO POSSESS."  (FN7) 

WE DENIED PETITION FOR FURTHER REVIEW OF THE CONTEMPT ISSUE.  (FN8)
ON RECONSIDERATION, HOWEVER, THE IMPORTANCE OF CLARIFYING THE
PERMISSIBLE PRACTICE IN SUCH CASES PERSUADED US TO GRANT CERTIORARI,
LIMITED TO ONE QUESTION OF PROCEDURE ON WHICH THERE WAS DISAGREEMENT IN
THE COURT BELOW.   OUR ORDER STATED THE ISSUE FOR CONSIDERATION: 

"  ...  THE SOLE QUESTION FOR REVIEW IS:  WAS THE CHARGE OF CONTEMPT,
AS AND WHEN CERTIFIED, ONE WHICH THE ACCUSING JUDGE WAS AUTHORIZED
UNDER RULE 42(A)  ...  TO DETERMINE AND PUNISH HIMSELF; OR WAS IT ONE
TO BE ADJUDGED AND PUNISHED UNDER RULE 42(B) ONLY BY A JUDGE OTHER THAN
THE ACCUSING ONE AND AFTER NOTICE, HEARING, AND OPPORTUNITY TO
DEFEND?"  (FN9) 

THE CERTIFICATE OF CONTEMPT FILLS SIXTY PAGES OF OUR RECORD AND
INCORPORATES, BY REFERENCE, THE 13,000 PAGES OF TRIAL RECORD.  THE
CERTIFICATE IN FULL (FN10) AND SUMMARY OF RELEVANT EVIDENCE HAVE BEEN
REPORTED BELOW.  BECAUSE OUR LIMITED REVIEW DOES NOT REQUIRE OR PERMIT
REEXAMINATION OF THE FACTS, NO PURPOSE WOULD BE SERVED BY DETAILED
RECITALS.  IT IS RELEVANT TO THE QUESTIONS OF LAW TO OBSERVE THAT THE
BEHAVIOR PUNISHED AS A RESULT OF THE COURT OF APPEALS' JUDGMENT HAS
THESE CHARACTERISTICS:  IT TOOK PLACE IN THE IMMEDIATE PRESENCE OF THE
TRIAL JUDGE; IT CONSISTED OF BREACHES OF DECORUM AND DISOBEDIENCE IN
THE PRESENCE OF THE JURY OF HIS ORDERS AND RULINGS UPON THE TRIAL; THE
MISCONDUCT WAS PROFESSIONAL IN THAT IT WAS THAT OF LAWYERS, OR OF A
LAYMAN ACTING AS HIS OWN LAWYER.  IN ADDITION, CONVICTION IS NOT BASED
ON AN ISOLATED INSTANCE OF HASTY CONTUMACIOUS SPEECH OR BEHAVIOR, BUT
UPON A COURSE OF CONDUCT LONG-CONTINUED IN THE FACE OF WARNINGS THAT IT
WAS REGARDED BY THE COURT AS CONTEMPTUOUS.  THE NATURE OF THE
DEPORTMENT WAS NOT SUCH AS MERELY TO OFFEND PERSONAL SENSITIVITIES OF
THE JUDGE, BUT IT PREJUDICED THE EXPEDITIOUS, ORDERLY AND DISPASSIONATE
CONDUCT OF THE TRIAL. 

WE HAVE TAKEN NO ISSUE AS TO THE STATUTE WHICH CONFERS POWER ON A
FEDERAL COURT TO PUNISH FOR CONTEMPT, (FN11) BUT ONLY AS TO THE
REGULARITY OF THE PROCEDURE UNDER RULE 42, (FN12) DESIGNED TO PROVIDE
FOR THE MANNER OF EXERCISING THAT POWER.  THE ISSUE WE ACCEPTED FOR
REVIEW IS A NARROW ONE.  PETITIONERS DO NOT DENY THAT THEY MIGHT HAVE
BEEN SUMMARILY PUNISHED FOR THEIR CONDUCT WITHOUT HEARING UNDER RULE
42(A) IF THE TRIAL JUDGE HAD ACTED AT ONCE UPON OCCURRENCE OF EACH
INCIDENT.  BUT IT IS CONTENDED THAT THIS POWER OF SUMMARY PUNISHMENT
EXPIRED BY REASON OF TWO CIRCUMSTANCES:  (1) THAT THE TRIAL JUDGE
AWAITED COMPLETION OF THE TRIAL, AT WHICH TIME ITS PROGRESS COULD NO
LONGER BE OBSTRUCTED, AND HENCE, IT IS SAID, SUMMARY ACTION HAD BECOME
UNNECESSARY; AND (2) THAT HE INCLUDED IN THE CERTIFICATE A CHARGE THAT
THE CONTEMPTUOUS INSTANCES WERE THE RESULT OF AGREEMENT BETWEEN COUNSEL
WHICH, IF IT EXISTED, WAS NOT MADE IN HIS PRESENCE.  THEREFORE, IT IS
ARGUED THAT PETITIONERS COULD NOT BE CONVICTED OR SENTENCED EXCEPT
AFTER NOTICE, TIME FOR PREPARATION OF A DEFENSE, AND HEARING, PROBABLY
BEFORE ANOTHER JUDGE, AS PROVIDED IN RULE 42(B). 

RULE 42 OBVIOUSLY WAS INTENDED TO MAKE MORE EXPLICIT "THE PREVAILING
USAGES AT LAW" BY WHICH THE STATUTE HAS AUTHORIZED PUNISHMENT OF
CONTEMPTS.  18 U.S.C. SECS. 401, 402.  NO LEGISLATIVE HISTORY SHEDS
LIGHT ON THIS ISSUE.  PRACTICE OF DISTRICT JUDGES HAS NOT BEEN UNIFORM
WHEN THEY HAVE DEEMED RESORT TO THE POWER NECESSARY.  (FN13)  A VARIETY
OF QUESTIONS CONCERNING CONTEMPT POWERS, LIMITATIONS AND PROCEDURES
HAVE BEEN CONSIDERED BY THIS COURT, (FN14) BUT NONE CONSTRUED THIS
RULE, WHICH WAS PROMULGATED BY THIS COURT IN 1944 AND BECAME EFFECTIVE
MARCH 26, 1946.  CASES PRIOR TO IT GREW OUT OF FACTS SO DISTINGUISHING
THAT THEIR DECISIONS ARE OF LITTLE VALUE AS PRECEDENTS. 

SUMMARY PUNISHMENT ALWAYS, AND RIGHTLY, IS REGARDED WITH DISFAVOR
AND, IF IMPOSED IN PASSION OR PETTINESS, BRINGS DISCREDIT TO A COURT AS
CERTAINLY AS THE CONDUCT IT PENALIZES.  BUT THE VERY PRACTICAL REASONS
WHICH HAVE LED EVERY SYSTEM OF LAW TO VEST A CONTEMPT POWER IN ONE WHO
PRESIDES OVER JUDICIAL PROCEEDINGS ALSO ARE THE REASONS WHICH ACCOUNT
FOR IT BEING MADE SUMMARY.  OUR CRIMINAL PROCESSES ARE ADVERSARY IN
NATURE AND RELY UPON THE SELF-INTEREST OF THE LITIGANTS AND COUNSEL FOR
FULL AND ADEQUATE DEVELOPMENT OF THEIR RESPECTIVE CASES.  THE NATURE OF
THE PROCEEDINGS PRESUPPOSES, OR AT LEAST STIMULATES, ZEAL IN THE
OPPOSING LAWYERS.  BUT THEIR STRIFE CAN PERVERT AS WELL AS AID THE
JUDICIAL PROCESS UNLESS IT IS SUPERVISED AND CONTROLLED BY A NEUTRAL
JUDGE REPRESENTING THE OVERRIDING SOCIAL INTEREST IN IMPARTIAL JUSTICE
AND WITH POWER TO CURB BOTH ADVERSARIES.  THE RIGHTS AND IMMUNITIES OF
ACCUSED PERSONS WOULD BE EXPOSED TO SERIOUS AND OBVIOUS ABUSE IF THE
TRIAL BENCH DID NOT POSSESS AND FREQUENTLY EXERT POWER TO CURB
PREJUDICIAL AND EXCESSIVE ZEAL OF PROSECUTORS.  THE INTERESTS OF
SOCIETY IN THE PRESERVATION OF COURTROOM CONTROL BY THE JUDGES ARE NO
MORE TO BE FRUSTRATED THROUGH UNCHECKED IMPROPRIETIES BY DEFENDERS. 

OF COURSE, IT IS THE RIGHT OF COUNSEL FOR EVERY LITIGANT TO PRESS HIS
CLAIM, EVEN IF IT APPEARS FARFETCHED AND UNTENABLE, TO OBTAIN THE
COURT'S CONSIDERED RULING.  FULL ENJOYMENT OF THAT RIGHT, WITH DUE
ALLOWANCE FOR THE HEAT OF CONTROVERSY, WILL BE PROTECTED BY APPELLATE
COURTS WHEN INFRINGED BY TRIAL COURTS.  BUT IF THE RULING IS ADVERSE,
IT IS NOT COUNSEL'S RIGHT TO RESIST IT OR TO INSULT THE JUDGE - HIS
RIGHT IS ONLY RESPECTFULLY TO PRESERVE HIS POINT FOR APPEAL.  DURING A
TRIAL, LAWYERS MUST SPEAK, EACH IN HIS OWN TIME AND WITHIN HIS ALLOWED
TIME, AND WITH RELEVANCE AND MODERATION.  THESE ARE SUCH OBVIOUS
MATTERS THAT WE SHOULD NOT REMIND THE BAR OF THEM WERE IT NOT FOR THE
MISCONCEPTIONS MANIFEST IN THIS CASE. 

THE RULE IN QUESTION CONTEMPLATES THAT OCCASIONS MAY ARISE WHEN THE
TRIAL JUDGE MUST IMMEDIATELY ARREST ANY CONDUCT OF SUCH NATURE THAT ITS
CONTINUANCE WOULD BREAK UP A TRIAL, SO IT GIVES HIM POWER TO DO SO
SUMMARILY.  BUT THE PETITIONERS HERE CONTEND THAT THE RULE NOT ONLY
PERMITS BUT REQUIRES ITS INSTANT EXERCISE, SO THAT ONCE THE EMERGENCY
HAS BEEN SURVIVED PUNISHMENT MAY NO LONGER BE SUMMARY BUT CAN ONLY BE
ADMINISTERED BY THE ALTERNATIVE METHOD ALLOWED BY RULE 42(B).  WE THINK
"SUMMARY" AS USED IN THIS RULE DOES NOT REFER TO THE TIMING OF THE
ACTION WITH REFERENCE TO THE OFFENSE BUT REFERS TO A PROCEDURE WHICH
DISPENSES WITH THE FORMALITY, DELAY AND DIGRESSION THAT WOULD RESULT
FROM THE ISSUANCE OF PROCESS, SERVICE OF COMPLAINT AND ANSWER, HOLDING
HEARINGS, TAKING EVIDENCE, LISTENING TO ARGUMENTS, AWAITING BRIEFS,
SUBMISSION OF FINDINGS, AND ALL THAT GOES WITH A CONVENTIONAL COURT
TRIAL.  THE PURPOSE OF THAT PROCEDURE IS TO INFORM THE COURT OF EVENTS
NOT WITHIN ITS OWN KNOWLEDGE.  THE RULE ALLOWS SUMMARY PROCEDURE ONLY
AS TO OFFENSES WITHIN THE KNOWLEDGE OF THE JUDGE BECAUSE THEY OCCURRED
IN HIS PRESENCE. 

REASONS FOR PERMITTING STRAIGHTWAY EXERCISE OF SUMMARY POWER ARE NOT
REASONS FOR COMPELLING OR ENCOURAGING ITS IMMEDIATE EXERCISE. 
FORTHWITH JUDGMENT IS NOT REQUIRED BY THE TEXT OF THE RULE.  STILL LESS
IS SUCH CONSTRUCTION APPROPRIATE AS A SAFEGUARD AGAINST ABUSE OF THE
POWER.  IF THE CONDUCT OF THESE LAWYERS WARRANTED IMMEDIATE SUMMARY
PUNISHMENT ON DOZENS OF OCCASIONS, NO POSSIBLE PREJUDICE TO THEM CAN
RESULT FROM DELAYING IT UNTIL THE END OF THE TRIAL IF THE CIRCUMSTANCES
PERMIT SUCH DELAY.  THE OVERRIDING CONSIDERATION IS THE INTEGRITY AND
EFFICIENCY OF THE TRIAL PROCESS, AND IF THE JUDGE DEEMS IMMEDIATE
ACTION INEXPEDIENT HE SHOULD BE ALLOWED DISCRETION TO FOLLOW THE
PROCEDURE TAKEN IN THIS CASE.  TO SUMMON A LAWYER BEFORE THE BENCH AND
PRONOUNCE HIM GUILTY OF CONTEMPT IS NOT UNLIKELY TO PREJUDICE HIS
CLIENT.  IT MIGHT BE DONE OUT OF THE PRESENCE OF THE JURY, BUT WE HAVE
HELD THAT A CONTEMPT JUDGMENT MUST BE PUBLIC.  (FN15)  ONLY THE NAIVE
AND INEXPERIENCED WOULD ASSUME THAT NEWS OF SUCH ACTION WILL NOT REACH
THE JURORS.  IF THE COURT WERE REQUIRED ALSO THEN TO PRONOUNCE
SENTENCE, A CONSTRUCTION QUITE AS CONSISTENT WITH THE TEXT OF THE RULE
AS PETITIONERS' PRESENT CONTENTION, IT WOULD ADD TO THE PREJUDICE.  IT
MIGHT ALSO HAVE THE ADDITIONAL CONSEQUENCE OF DEPRIVING DEFENDANT OF
HIS COUNSEL UNLESS EXECUTION OF PRISON SENTENCE WERE SUSPENDED OR
STAYED AS SPEEDILY AS IT HAD BEEN IMPOSED.  THE PROCEDURE ON WHICH
PETITIONERS NOW INSIST IS JUST THE PROCEDURE MOST LIKELY TO ACHIEVE THE
ONLY DISCERNIBLE PURPOSE OF THE CONTEMPTUOUS CONDUCT.  HAD THE TRIAL
JUDGE HERE PURSUED THAT COURSE, THEY COULD HAVE MADE A FORMIDABLE
ASSERTION THAT IT WAS UNFAIR TO THEM OR TO THEIR CLIENTS AND THAT A NEW
TRIAL WAS REQUIRED ON ACCOUNT OF IT. 

IN THIS CASE COUNSEL REPEATEDLY WERE WARNED THAT THEIR CONDUCT WAS
REGARDED AS CONTEMPTUOUS.  NO CLAIM CAN BE MADE THAT THE JUDGE AWAITED
THE CLOSE OF THE TRIAL TO POUNCE UPON THEM FOR SOME OFFENSE UNNOTED AT
THE TIME IT OCCURRED.  IF WE WERE TO HOLD THAT SUMMARY PUNISHMENT CAN
BE IMPOSED ONLY INSTANTLY UPON THE EVENT, IT WOULD BE AN INCENTIVE TO
PRONOUNCE, WHILE SMARTING UNDER THE IRRITATION OF THE CONTEMPTUOUS ACT,
WHAT SHOULD BE A WELL-CONSIDERED JUDGMENT.  WE THINK IT LESS LIKELY
THAT UNFAIR CONDEMNATION OF COUNSEL WILL OCCUR IF THE MORE DELIBERATE
COURSE BE PERMITTED. 

WE HOLD THAT RULE 42 ALLOWS THE TRIAL JUDGE, UPON THE OCCURRENCE IN
HIS PRESENCE OF A CONTEMPT, IMMEDIATELY AND SUMMARILY TO PUNISH IT, IF,
IN HIS OPINION, DELAY WILL PREJUDICE THE TRIAL.  WE HOLD, ON THE OTHER
HAND, THAT IF HE BELIEVES THE EXIGENCIES OF THE TRIAL REQUIRE THAT HE
DEFER JUDGMENT UNTIL ITS COMPLETION HE MAY DO SO WITHOUT EXTINGUISHING
HIS POWER. 

THE OTHER REASON ASCRIBED FOR REVERSING THIS CASE IS THAT THE
ACCUSING JUDGE CHARGED THE PETITIONERS, AMONG OTHER THINGS, WITH AN
AGREEMENT DELIBERATELY ENTERED INTO IN A COLD AND CALCULATED MANNER,
"TO IMPAIR MY HEALTH."  IT IS NOT CHARGED THAT SUCH AN AGREEMENT WAS
MADE IN THE PRESENCE OF THE JUDGE.  WE NEED NOT DETERMINE WHETHER A
PROPER CONSTRUCTION OF THE CERTIFICATE WOULD BE THAT THE CONCERT OF
ACTION WHICH DID TAKE PLACE IN HIS PRESENCE AMOUNTED TO AN IMPLIED
AGREEMENT OR AS CHARGING AN EARLIER EXPRESS VERBAL AGREEMENT TO ACT IN
CONCERT.  THIS SPECIFICATION WAS REVERSED BY THE COURT OF APPEALS,
WHICH, HOWEVER, FOUND THE JUDGMENT AMPLY SUSTAINED WITHOUT IT, AND
CONSIDERED THE SUBSTANTIVE OFFENSES SEPARABLE AND INDEPENDENT, AS DO
WE.  IT FOUND THE JUDGMENT AMPLY SUSTAINED WITHOUT THE CONSPIRACY
COUNT.  THE SENTENCES RAN CONCURRENTLY, SO REVERSAL OF ONE DOES NOT
REQUIRE REVERSAL OF THE OTHER. 

A CONSTRUCTION OF THE RULE IS ADVOCATED WHICH WOULD DENY A JUDGE
POWER SUMMARILY TO PUNISH A CONTEMPT THAT IS PERSONAL TO HIMSELF
EXCEPT, PERHAPS, AT A MOMENT WHEN IT IS NECESSARY TO FORESTALL ABORTION
OF THE TRIAL.  HIS ONLY RECOURSE, IT IS SAID, IS TO BECOME AN ACCUSER
OR COMPLAINING WITNESS IN A PROCEEDING BEFORE ANOTHER JUDGE. 

THE RULE ITSELF EXPRESSES NO SUCH LIMITATION, AND THE CONTRARY
INFERENCE IS ALMOST INESCAPABLE.  IT IS ALMOST INEVITABLE THAT ANY
CONTEMPT OF A COURT COMMITTED IN THE PRESENCE OF THE JUDGE DURING A
TRIAL WILL BE AN OFFENSE AGAINST HIS DIGNITY AND AUTHORITY.  AT A TRIAL
THE COURT IS SO MUCH THE JUDGE AND THE JUDGE SO MUCH THE COURT THAT THE
TWO TERMS ARE USED INTERCHANGEABLY IN COUNTLESS OPINIONS IN THIS COURT
AND GENERALLY IN THE LITERATURE OF THE LAW, AND CONTEMPT OF THE ONE IS
CONTEMPT OF THE OTHER.  IT CANNOT BE THAT SUMMARY PUNISHMENT IS ONLY
FOR SUCH MINOR CONTEMPTS AS LEAVE THE JUDGE INDIFFERENT AND MAY BE
EVADED BY ADDING HECTORING, ABUSIVE AND DEFIANT CONDUCT TOWARD THE
JUDGE AS AN INDIVIDUAL.  SUCH AN INTERPRETATION WOULD NULLIFY, IN
PRACTICE, THE POWER IT PURPORTS TO GRANT. 

WE ARE URGED THAT THESE SENTENCES WILL HAVE AN INTIMIDATING EFFECT ON
THE LEGAL PROFESSION, WHOSE MEMBERS HEREAFTER WILL DECLINE TO APPEAR IN
TRIALS WHERE "DEFENDANTS ARE OBJECTS OF HOSTILITY OF THOSE IN POWER,"
OR WILL DO SO UNDER A "CLOUD OF FEAR" WHICH "THREATENS THE RIGHT OF THE
AMERICAN PEOPLE TO BE REPRESENTED FEARLESSLY AND VIGOROUSLY BY
COUNSEL." 

THAT CONTEMPT POWER OVER COUNSEL, SUMMARY OR OTHERWISE, IS CAPABLE OF
ABUSE IS CERTAIN.  MEN WHO MAKE THEIR WAY TO THE BENCH SOMETIMES
EXHIBIT VANITY, IRASCIBILITY, NARROWNESS, ARROGANCE, AND OTHER
WEAKNESSES TO WHICH HUMAN FLESH IS HEIR.  MOST JUDGES, HOWEVER,
RECOGNIZE AND RESPECT COURAGEOUS, FORTHRIGHT LAWYERLY CONDUCT.  THEY
RARELY MISTAKE OVERZEAL OR HEATED WORDS OF A MAN FIRED WITH A DESIRE TO
WIN, FOR THE CONTEMPTUOUS CONDUCT WHICH DEFIES RULINGS AND DESERVES
PUNISHMENT.  THEY RECOGNIZE THAT OUR PROFESSION NECESSARILY IS A
CONTENTIOUS ONE AND THEY RESPECT THE LAWYER WHO MAKES A STRENUOUS
EFFORT FOR HIS CLIENT. 

THE PROFESSION KNOWS THAT NO LAWYER IS AT THE MERCY OF A SINGLE
FEDERAL TRIAL JUDGE.  THIS CASE DEMONSTRATES THAT BEFORE PUNISHMENT
TAKES EFFECT HE MAY HAVE APPEAL ON LAW AND FACT TO THE COURT OF
APPEALS.  PETITIONERS, AS YET, HAVE SERVED NO PART OF THEIR SENTENCES
BUT HAVE BEEN ENLARGED ON BAIL WHILE THEIR CONDUCT HAS BEEN DIRECTLY
REVIEWED BY ONE COURT OF APPEALS ON THEIR OWN APPEAL AND CONSIDERED
INDIRECTLY BY A DIFFERENTLY COMPOSED COURT OF APPEALS ON THEIR CLIENTS'
APPEAL.  SOME OF THOSE JUDGES HAD TRIAL AND APPELLATE EXPERIENCE ALMOST
UNPARALLELED IN LENGTH AND VARIETY.  THESE LAWYERS HAVE NOT BEEN
CONDEMNED, AS THEY CLAIM, MERELY BY THE IMPULSE OF ONE LONE AND HOSTILE
JUDGE.   THEIR CONDUCT HAS BEEN CONDEMNED BY EVERY JUDGE WHO HAS
EXAMINED THIS RECORD UNDER A DUTY TO REVIEW THE FACTS.  IT IS TO BE
DOUBTED WHETHER THE PROFESSION WILL BE GREATLY TERRORIZED BY PUNISHMENT
OF SOME OF ITS MEMBERS AFTER SUCH EXTENDED AND DETACHED CONSIDERATION. 
MOREOVER, IF POWER OF CONTEMPT EXCITES FEAR AND TERROR IN THE BAR, IT
WOULD HARDLY BE RELIEVED BY UPHOLDING PETITIONERS' CONTENTION THAT THE
JUDGE MAY PROCEED AGAINST A LAWYER AT THE PRECISE MOMENT OF MAXIMUM
HEAT BUT MAY NOT DO SO IF HE AWAITS A COOLER SECOND THOUGHT. 

WE ARE NOT UNAWARE OR UNCONCERNED THAT PERSONS IDENTIFIED WITH
UNPOPULAR CAUSES MAY FIND IT DIFFICULT TO ENLIST THE COUNSEL OF THEIR
CHOICE.  BUT WE THINK IT MUST BE ASCRIBED TO CAUSES QUITE APART FROM
FEAR OF BEING HELD IN CONTEMPT, FOR WE THINK FEW EFFECTIVE LAWYERS
WOULD REGARD THE TACTICS CONDEMNED HERE AS EITHER NECESSARY OR HELPFUL
TO A SUCCESSFUL DEFENSE.  THAT SUCH CLIENTS SEEM TO HAVE THOUGHT THESE
TACTICS NECESSARY IS LIKELY TO CONTRIBUTE TO THE BAR'S RELUCTANCE TO
APPEAR FOR THEM RATHER MORE THAN FEAR OF CONTEMPT. 

BUT THAT THERE MAY BE NO MISUNDERSTANDING, WE MAKE CLEAR THAT THIS
COURT, IF ITS AID BE NEEDED, WILL UNHESITATINGLY PROTECT COUNSEL IN
FEARLESS, VIGOROUS AND EFFECTIVE PERFORMANCE OF EVERY DUTY PERTAINING
TO THE OFFICE OF THE ADVOCATE ON BEHALF OF ANY PERSON WHATSOEVER.  BUT
IT WILL NOT EQUATE CONTEMPT WITH COURAGE OR INSULTS WITH INDEPENDENCE. 
IT WILL ALSO PROTECT THE PROCESSES OF ORDERLY TRIAL, WHICH IS THE
SUPREME OBJECT OF THE LAWYER'S CALLING.  AFFIRMED. 

FN1  DENNIS V. UNITED STATES, 341 U.S. 494. 

FN2  UNITED STATES V. SACHER, 182 F.2D 416. 

FN3  ID., AT 423. 

FN4  ID., AT 454. 

FN5  ID., AT 463. 

FN6  UNITED STATES V. DENNIS, 183 F.2D 201, 225. 

FN7  ID., AT 226. 

FN8  341 U.S. 952. 

FN9  342 U.S. 858. 

FN10  182 F.2D AT 430-453. 

FN11  18 U.S.C. SEC. 401, "POWER OF COURT," PROVIDES: 

"A COURT OF THE UNITED STATES SHALL HAVE POWER TO PUNISH BY FINE OR
IMPRISONMENT, AT ITS DISCRETION, SUCH CONTEMPT OF ITS AUTHORITY, AND
NONE OTHER, AS: 

"(1)  MISBEHAVIOR OF ANY PERSON IN ITS PRESENCE OR SO NEAR THERETO AS
TO OBSTRUCT THE ADMINISTRATION OF JUSTICE. 

"(2)  MISBEHAVIOR OF ANY OF ITS OFFICERS IN THEIR OFFICIAL
TRANSACTIONS. 

"(3)  DISOBEDIENCE OR RESISTANCE TO ITS LAWFUL WRIT, PROCESS, ORDER,
RULE, DECREE, OR COMMAND." 

18 U.S.C. SEC. 402, "CONTEMPTS CONSTITUTING CRIMES," PROVIDES FOR
CRIMINAL CONTEMPT PROSECUTIONS OF ACTS WHICH ARE IN THEMSELVES CRIMINAL
AS WELL AS CONTEMPTUOUS, BUT ADDS: 

"THIS SECTION SHALL NOT BE CONSTRUED TO RELATE TO CONTEMPTS COMMITTED
IN THE PRESENCE OF THE COURT, OR SO NEAR THERETO AS TO OBSTRUCT THE
ADMINISTRATION OF JUSTICE, NOR TO CONTEMPTS COMMITTED IN DISOBEDIENCE
OF ANY LAWFUL WRIT, PROCESS, ORDER, RULE, DECREE, OR COMMAND ENTERED IN
ANY SUIT OR ACTION BROUGHT OR PROSECUTED IN THE NAME OF, OR ON BEHALF
OF, THE UNITED STATES, BUT THE SAME, AND ALL OTHER CASES OF CONTEMPT
NOT SPECIFICALLY EMBRACED IN THIS SECTION MAY BE PUNISHED IN CONFORMITY
TO THE PREVAILING USAGES AT LAW." 

FN12  RULE 42, FED. RULES CRIM. PROC., "CRIMINAL CONTEMPT," READS: 

"(A)  SUMMARY DISPOSITION.  A CRIMINAL CONTEMPT MAY BE PUNISHED
SUMMARILY IF THE JUDGE CERTIFIES THAT HE SAW OR HEARD THE CONDUCT
CONSTITUTING THE CONTEMPT AND THAT IT WAS COMMITTED IN THE ACTUAL
PRESENCE OF THE COURT.  THE ORDER OF CONTEMPT SHALL RECITE THE FACTS
AND SHALL BE SIGNED BY THE JUDGE AND ENTERED OF RECORD. 

"(B)  DISPOSITION UPON NOTICE AND HEARING.  A CRIMINAL CONTEMPT
EXCEPT AS PROVIDED IN SUBDIVISION (A) OF THIS RULE SHALL BE PROSECUTED
ON NOTICE.  THE NOTICE SHALL STATE THE TIME AND PLACE OF HEARING,
ALLOWING A REASONABLE TIME FOR THE PREPARATION OF THE DEFENSE, AND
SHALL STATE THE ESSENTIAL FACTS CONSTITUTING THE CRIMINAL CONTEMPT
CHARGED AND DESCRIBE IT AS SUCH.  THE NOTICE SHALL BE GIVEN ORALLY BY
THE JUDGE IN OPEN COURT IN THE PRESENCE OF THE DEFENDANT OR, ON
APPLICATION OF THE UNITED STATES ATTORNEY OR OF AN ATTORNEY APPOINTED
BY THE COURT FOR THAT PURPOSE, BY AN ORDER TO SHOW CAUSE OR AN ORDER OF
ARREST.  THE DEFENDANT IS ENTITLED TO A TRIAL BY JURY IN ANY CASE IN
WHICH AN ACT OF CONGRESS SO PROVIDES.  HE IS ENTITLED TO ADMISSION TO
BAIL AS PROVIDED IN THESE RULES.  IF THE CONTEMPT CHARGED INVOLVES
DISRESPECT TO OR CRITICISM OF A JUDGE, THAT JUDGE IS DISQUALIFIED FROM
PRESIDING AT THE TRIAL OR HEARING EXCEPT WITH THE DEFENDANT'S CONSENT. 
UPON A VERDICT OR FINDING OF GUILT THE COURT SHALL ENTER AN ORDER
FIXING THE PUNISHMENT." 

FN13  IN HALLINAN V. UNITED STATES, 182 F.2D 880, CERT. DENIED, 341
U.S. 952, DEFENSE COUNSEL WAS SUMMARILY ADJUDGED IN CONTEMPT UNDER RULE
42(A) AND SENTENCED TO SIX MONTHS' IMPRISONMENT WHILE THE TRIAL WAS
STILL IN PROGRESS.  THE TRIAL JUDGE'S POWER TO DO SO WAS SUSTAINED OVER
THE OBJECTION THAT HE HAD DELAYED OVERNIGHT AND THAT PART OF THE
CONDUCT SPECIFIED WAS THAT OF FOUR AND FIVE DAYS EARLIER.  IN MACINNIS
V. UNITED STATES, 191 F.2D 157, CERT. DENIED THIS DATE, 342 U.S. 953,
DEFENSE COUNSEL WAS ADJUDGED IN CONTEMPT FOR CONDUCT THE DAY BEFORE. 
FILING OF THE CERTIFICATE OF CONTEMPT WAS DELAYED MORE THAN THREE
WEEKS, AND IT WAS ANNOUNCED THAT THE FIXING OF THE PUNISHMENT WOULD BE
DEFERRED UNTIL THE END OF THE TRIAL.  WHEN THE TRIAL WAS CONCLUDED TWO
MONTHS AFTER THE CONTEMPT, COUNSEL WAS IMMEDIATELY SENTENCED TO THREE
MONTHS' IMPRISONMENT.  THE TRIAL JUDGE'S POWER TO DO SO WAS UPHELD. 

FN14  AMONG THEM:  EX PARTE TERRY, 128 U.S. 289; COOKE V. UNITED
STATES, 267 U.S. 517; NYE V. UNITED STATES, 313 U.S. 33; PENDERGAST V.
UNITED STATES, 317 U.S. 412; IN RE MICHAEL, 326 U.S. 224. 

FN15  IN RE OLIVER, 333 U.S. 257. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

I WOULD REVERSE THESE CONVICTIONS BECAUSE OF MY BELIEF THAT (1) THE
JUDGE SHOULD NOT HAVE PASSED ON THE CONTEMPT CHARGES HE PREFERRED; (2)
WHATEVER JUDGE CONSIDERED THE CHARGES, GUILT SHOULD NOT HAVE BEEN
SUMMARILY DECIDED AS IT WAS - WITHOUT NOTICE, WITHOUT A HEARING AND
WITHOUT AN OPPORTUNITY FOR PETITIONERS TO DEFEND THEMSELVES; (3)
PETITIONERS WERE CONSTITUTIONALLY ENTITLED TO HAVE THEIR GUILT OR
INNOCENCE OF CRIMINAL CONTEMPT DECIDED BY A JURY. 

AFTER A NINE MONTHS' TRIAL OF LEADERS OF THE COMMUNIST PARTY A JURY
BROUGHT IN A VERDICT OF GUILTY AND WAS DISCHARGED.  IMMEDIATELY,
PRESIDING JUDGE MEDINA ASKED ALL THE DEFENDANTS' LAWYERS (FN1) TO STAND
UP, THEN READ THEM A VERY MINOR PART OF A LENGTHY "CONTEMPT
CERTIFICATE" IN WHICH THEY WERE ALLEGED TO HAVE COMMITTED MANY ACTS OF
CONTEMPT AT VARIOUS TIMES DURING THE PROTRACTED TRIAL.  WITHOUT
AFFORDING ANY OF THEM A CHANCE TO SAY A WORD BEFORE HE ACTED, THE
PRESIDING JUDGE HELD ALL OF THEM GUILTY OF CONTEMPT AND SENTENCED EACH
ONE TO PRISON. 

FIRST.  I THINK IT WAS A GRAVE ERROR FOR THE JUDGE TO PASS ON THE
CHARGES HE BROUGHT.  REASONS WHY HE SHOULD NOT HAVE DONE SO HAVE BEEN
FORCEFULLY PRESENTED BY MR. JUSTICE FRANKFURTER HERE AND BY JUDGE
CHARLES CLARK IN THE COURT OF APPEALS.  THEIR ARGUMENTS THAT JUDGE
MEDINA SHOULD NOT HAVE MADE THESE ADJUDICATIONS ARE VIVIDLY BUTTRESSED
BY THE COLLECTION OF TRIAL EPISODES PLACED IN THE APPENDIX TO MR.
JUSTICE FRANKFURTER'S OPINION, POST, P. 42.  THESE EPISODES BESPEAK AN
ATTITUDE OF DISTRUST OF THE LAWYERS AND, I REGRET TO ADD, OF HOSTILITY
TO THEM, GENERALLY DEEMED INCONSISTENT WITH THAT COMPLETE IMPARTIALITY
THE PROCESS OF JUDGING DEMANDS.  FACTS THAT APPEAR OF SPECIAL
IMPORTANCE TO ME IN CONSIDERING WHAT WERE THE JUDGE'S PERSONAL FEELINGS
TOWARDS THOSE HE CONVICTED ARE THESE: 

THE PRESIDING JUDGE WAS CONVINCED THAT THE LAWYERS HAD DELIBERATELY
AND CALCULATINGLY BADGERED AND INSULTED HIM THROUGHOUT THE LONG MONTHS
OF TRIAL.  AMONG THESE INSULTS, SO THE JUDGE BELIEVED AND DECLARED,
WERE INSOLENT, SARCASTIC, IMPUDENT AND DISRESPECTFUL CHARGES THAT HE
ANGLED FOR NEWSPAPER HEADLINES; CONNIVED WITH THE UNITED STATES
ATTORNEY; ENTERTAINED RACIAL PREJUDICE; JUDICIALLY ACTED WITH "BIAS,
PREJUDICE, CORRUPTION, AND PARTIALITY."  HE FOUND AND REPEATEDLY
DECLARED THAT THESE LAWYERS WERE ACTING IN CONCERTED AGREEMENT IN AN
ATTEMPT TO CREATE CONFUSION, PROVOKE INCIDENTS AND BREAK DOWN HIS
HEALTH.  AS THE TRIAL PROGRESSED, THE RECORD SHOWS THAT THE JUDGE
EXPRESSED STRONGER AND STRONGER FEARS THAT THE ALLEGED CONSPIRACY TO
DESTROY HIS HEALTH WAS ABOUT TO SUCCEED.  THIS BELIEF MAY EXPLAIN HIS
SHARP AND SOMEWHAT HEATED REPARTEE IN HIS FREQUENT CONTROVERSIES WITH
COUNSEL.  BUT WHATEVER THE PROVOCATION, THE RECORD SHOWS A CONSTANTLY
GROWING RESENTMENT OF THE JUDGE AGAINST THE LAWYERS. 

THE JUDGE'S DISTRUST OF AND DISRESPECT FOR THE LAWYERS CLEARLY APPEAR
FROM HIS FREQUENT CHARGES THAT THEIR STATEMENTS WERE FALSE AND
UNRELIABLE.  THESE REPEATED ACCUSATIONS, AS PARTICULARLY SHOWN BY THE
FOLLOWING COLLOQUY, IMPRESS ME AS SHOWING SUCH BITTER HOSTILITY TO THE
LAWYERS THAT THE ACCUSER SHOULD BE HELD DISQUALIFIED TO TRY THEM:

"MR. SACHER:  I AM OFFENDED ON THESE CONSTANT ASPERSIONS ON THE
VERACITY OF REPRESENTATIONS THAT I MAKE.  I AM AN OFFICER OF THIS COURT
AND I RESENT THESE  ...  . 

"THE COURT:  THERE WAS AN INSTANCE WHEN YOU DELIBERATELY LIED TO ME
WHEN THEY WERE PASSING THESE PRESS RELEASES.  YOU SAID THAT THEY WERE
NOT AND YOU WERE CAUGHT RED-HANDED. 

"MR. SACHER:  THAT IS THE MOST OFFENSIVE CHARGE THAT CAN BE MADE
AGAINST AN OFFICER OF THE COURT ...  .  WHAT HAS A LAWYER GOT BUT HIS
HONOR. 

"THE COURT:  ...  YOU WERE CAUGHT RED-HANDED. 

"MR. SACHER:  THAT IS THE MOST DETESTABLE THING I EVER HEARD FROM A
JUDGE.  I RESENT THAT AND I URGE THAT IT BE EXPUNGED FROM THE RECORD
...  .  I WILL DEFEND MY HONOR AS A MEMBER OF THE BAR AGAINST YOUR
HONOR OR ANYBODY ELSE  ...  .  I THINK AN IDIOT RESORTS TO LYING.  I
DON'T HAVE TO DO IT. 

"THE COURT:  YOU DID IT. 

"WE BETTER LET THESE LITTLE AMENITIES GO.  I CAN SEE FROM YOUR
BELLIGERENT MANNER IF YOU THOUGHT YOU COULD, YOU MIGHT PHYSICALLY COME
UP TO THE BENCH AND PHYSICALLY ATTACK ME.  I KNOW YOUR MANNER, AND IT
DOESN'T FRIGHTEN ME IN THE SLIGHTEST DEGREE."  (FN2) 

LIAR ORDINARILY IS A FIGHTING WORD SPOKEN IN ANGER TO EXPRESS BITTER
PERSONAL HOSTILITY AGAINST ANOTHER.  I CAN THINK OF NO OTHER REASON FOR
ITS USE HERE, PARTICULARLY SINCE THE JUDGE'S CHARGE WAS BASELESS. 
(FN3)  AND THE JUDGE'S PERSONAL FEELING TOWARDS THESE LAWYERS, SACHER
IN PARTICULAR, IS FURTHER INDICATED BY AN OCCURRENCE IMMEDIATELY AFTER
THEY HAD BEEN SENTENCED.  SACHER ASKED AND WAS GRANTED THE PRIVILEGE OF
MAKING A BRIEF STATEMENT.  THIS STATEMENT WAS RELEVANT AND DIGNIFIED. 
(FN4)  NEVERTHELESS THE JUDGE INTERRUPTED HIM AND USED THIS LANGUAGE TO
A LAWYER HE HAD JUST ABRUPTLY AND SUMMARILY SENTENCED TO PRISON:  "YOU
CONTINUE IN THE SAME BRAZEN MANNER THAT YOU USED THROUGHOUT THE WHOLE
TRIAL.  ...  DESPITE ALL KINDS OF WARNINGS THROUGHOUT THE CASE, YOU
CONTINUE WITH THE SAME OLD MEALY-MOUTH WAY OF PUTTING IT WHICH I HAVE
BEEN LISTENING TO THROUGHOUT THE CASE."   CANDOR COMPELS ME TO SAY THAT
IN THIS EPISODE THE DECORUM AND DIGNITY OF THE LAWYER WHO HAD JUST BEEN
SENTENCED TO PRISON LOSES NOTHING BY COMPARISON WITH OTHERS. 

CERTAINLY REPEATEDLY CALLING A LAWYER A LIAR MARKS A DRASTIC
DEVIATION FROM THE DESIRABLE JUDICIAL STANDARD.  A JUDGE WHO DOES THIS
SHOULD NO MORE BE PERMITTED TO TRY THE LAWYER HE ACCUSES THAN A JUDGE
SHOULD BE PERMITTED TO TRY HIS OWN CASE.  CF. TUMEY V. OHIO, 273 U.S.
510.  NO MAN SHOULD BE FORCED TO TRIAL BEFORE A JUDGE WHO HAS
PREVIOUSLY PUBLICLY ATTACKED HIS PERSONAL HONOR AND INTEGRITY.  THE
RISK TO IMPARTIAL JUSTICE IS TOO GREAT. 

SECOND.  BEFORE SENTENCE AND CONVICTION THESE PETITIONERS WERE
ACCORDED NO CHANCE AT ALL TO DEFEND THEMSELVES.  THEY WERE NOT EVEN
AFFORDED AN OPPORTUNITY TO CHALLENGE THE SUFFICIENCY OR THE ACCURACY OF
THE CHARGES.  THEIR SENTENCES WERE READ TO THEM BUT THE FULL CHARGES
WERE NOT.  I CANNOT RECONCILE THIS SUMMARY BLASTING OF LEGAL CAREERS
WITH A FAIR SYSTEM OF JUSTICE.  SUCH A PROCEDURE CONSTITUTES AN
OVERHANGING MENACE TO THE SECURITY OF EVERY COURTROOM ADVOCATE IN
AMERICA.  THE MENACE IS MOST OMINOUS FOR LAWYERS WHO ARE OBSCURE,
UNPOPULAR OR DEFENDERS OF UNPOPULAR PERSONS OR UNORTHODOX CAUSES. 

CONVICTION WITHOUT TRIAL IS NOT ONLY INHERENTLY UNFAIR IN THE FIRST
COURT, BUT THE UNFAIRNESS IS CARRIED UP TO THE APPELLATE LEVEL.  THIS
CASE PROVES THAT.  A FAIR REVIEW REQUIRES SCRUTINY OF 13,000 PAGES OF
EVIDENCE MOST OF WHICH IS IRRELEVANT.  FOR THE CONTEMPT CERTIFICATE
STATES: "AS ISOLATED QUOTATIONS FROM OR REFERENCES TO THE TRANSCRIPT
CAN GIVE BUT A PARTIAL VIEW OF THE ACTS, STATEMENTS, AND CONDUCT ABOVE
REFERRED TO, I HEREBY MAKE THE ENTIRE RECORD PART OF THESE
PROCEEDINGS."  SUCH A RECORD OBSCURED THE LAWYERS' TRIAL CONDUCT IN A
MAZE OF EVIDENCE THAT HAS NOTHING TO DO WITH THEIR OWN GUILT OR
INNOCENCE.  IT IS NOT SURPRISING THAT THIS COURT SHRINKS FROM READING
SUCH A RECORD; IT REFUSES TO DO SO.  NO ASSERTION IS MADE THAT THE
COURT OF APPEALS WADED THROUGH IT.  CONSEQUENTLY THERE IS EVERY
INDICATION THAT THE COURT OF APPEALS APPRAISED THE FACTUAL ACCURACY OF
JUDGE MEDINA'S CHARGES ON A BASIS DEEMED BY HIM AS "INADEQUATE" BECAUSE
PRESENTING ONLY "A PARTIAL VIEW" OF THE NUMEROUS COURT-LAWYER
CONTROVERSIES.  (FN5)  SUCH AN "INADEQUATE" BASIS OF REVIEW IS TO BE
EXPECTED SINCE NO HEARING WAS HELD WHICH COULD HAVE FRAMED CONCRETE
ISSUES AND FOCUSED ATTENTION ON EVIDENCE RELEVANT TO THEM. 

THERE ARE OTHER MANIFEST ELEMENTS OF UNFAIRNESS IN A SYSTEM WHICH
CALLS ON APPELLATE COURTS TO JUDGE THE TRIAL CONDUCT OF LAWYERS ACCUSED
OF CONTEMPT ON THE BASIS OF ALL EVIDENCE INTRODUCED AGAINST THEIR
CLIENTS IN A PRIOR CRIMINAL CASE.  THIS UNFAIRNESS IS PARTICULARLY
EMPHASIZED HERE.  THE ROOT OF JUDGE MEDINA'S CHARGES WAS THAT THESE
LAWYERS FOLLOWED A CONCERTED COURSE DELIBERATELY DESIGNED TO BRING THE
WHOLE JUDICIAL SYSTEM INTO PUBLIC CONTEMPT AND DISGRACE.  THEIR CLIENTS
WERE COMMUNIST LEADERS.  MUCH OF THE 13,000 PAGES OF EVIDENCE WAS
OFFERED TO SHOW THAT THEY PLANNED TO SUBVERT AND DESTROY ALL
GOVERNMENTAL INSTITUTIONS, INCLUDING COURTS.  UNLESS WE ARE TO DEPART
FROM HIGH TRADITIONS OF THE BAR, EVIL PURPOSES OF THEIR CLIENTS COULD
NOT BE IMPUTED TO THESE LAWYERS WHOSE DUTY IT WAS TO REPRESENT THEM
WITH FIDELITY AND ZEAL.  YET FROM THE VERY PARTS OF THE RECORD WHICH
JUDGE MEDINA SPECIFIED, IT IS DIFFICULT TO ESCAPE THE IMPRESSION THAT
HIS INFERENCES AGAINST THE LAWYERS WERE COLORED, HOWEVER UNCONSCIOUSLY,
BY HIS NATURAL ABHORRENCE FOR THE UNPATRIOTIC AND TREASONABLE DESIGNS
ATTRIBUTED TO THEIR COMMUNIST LEADER CLIENTS.  IT APPEARS TO ME THAT IF
THERE HAVE EVER BEEN, OR CAN EVER BE, CASES IN WHICH LAWYERS ARE
ENTITLED TO A FULL HEARING BEFORE THEIR LIBERTY IS FORFEITED AND THEIR
PROFESSIONAL HOPES ARE BLIGHTED, THESE ARE SUCH CASES. 

FOR REASONS STATED ABOVE AND FOR REASONS STATED IN THE DISSENT OF MR.
JUSTICE FRANKFURTER AND THE DISSENT OF JUDGE CHARLES CLARK, I THINK
THESE CASES SHOULD BE REVERSED BECAUSE JUDGE MEDINA DENIED PETITIONERS
A HEARING.  BUT I WOULD REVERSE ON THE FURTHER GROUND THAT PETITIONERS
ARE ENTITLED TO ALL THE CONSTITUTIONAL SAFEGUARDS PROVIDED TO PROTECT
PERSONS CHARGED WITH CRIME, INCLUDING A TRIAL BY JURY. 

THIRD.  ART. III, SEC. 2 OF THE CONSTITUTION PROVIDES THAT "THE TRIAL
OF ALL CRIMES  ...  SHALL BE BY JURY."  NOT SATISFIED WITH THIS SINGLE
PROTECTION FOR JURY TRIAL, THE FOUNDERS REEMPHASIZED THE GUARANTY BY
DECLARING IN THE SIXTH AMENDMENT THAT "IN ALL CRIMINAL PROSECUTIONS,
THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN
IMPARTIAL JURY  ...  ."  AND THE FIFTH AMENDMENT PROVIDES THAT "NO
PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS
CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY  ...  ." 
THESE CONTEMPT PROCEEDINGS ARE "CRIMINAL PROSECUTIONS" BROUGHT TO
AVENGE AN ALLEGED PUBLIC WRONG.  PETITIONERS WERE IMPRISONED FOR TERMS
UP TO SIX MONTHS, BUT THESE TERMS COULD HAVE BEEN LONGER.  THE
GOVERNMENT'S POSITION IN UNITED STATES V. UNITED MINE WORKERS OF
AMERICA, 330 U.S. 258, WAS THAT THE AMOUNT OF PUNISHMENT FOR THE CRIME
OF CONTEMPT CAN BE FIXED AT A JUDGE'S DISCRETION, WITH NO LIMIT BUT THE
EIGHTH AMENDMENT'S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT. 
CERTAINLY, PETITIONERS HAVE BEEN SENTENCED FOR CRIMES.  (FN6)
CONSEQUENTLY THESE LAWYERS HAVE BEEN WRONGFULLY DEPRIVED OF THE JURY
BENEFITS OF THE FOREGOING CONSTITUTIONAL PROVISIONS UNLESS THEY ARE
INAPPLICABLE TO THE CRIME OF CONTEMPT. 

THERE ARE UNDOUBTEDLY SAYINGS IN SOME PAST OPINIONS OF THIS COURT
BROAD ENOUGH TO JUSTIFY WHAT WAS DONE HERE.  INDEED JUDGES AND PERHAPS
LAWYERS PRETTY GENERALLY SUBSCRIBE TO THE DOCTRINE THAT JUDICIAL
INSTITUTIONS WOULD BE IMPERILED IF JUDGES WERE WITHOUT POWER SUMMARILY
TO CONVICT AND PUNISH FOR COURTROOM OFFENSES.  OUR RECENT DECISIONS,
HOWEVER, HAVE EXPRESSED MORE CAUTIOUS VIEWS ABOUT THE JUDICIAL
AUTHORITY TO PUNISH FOR CONTEMPT.  RETURNING TO THE EARLY VIEWS OF THIS
COURT, WE HAVE MARKED THE LIMITS OF THAT AUTHORITY AS BEING "THE LEAST
POSSIBLE POWER ADEQUATE TO THE END PROPOSED."  IN RE OLIVER, 333 U.S.
257, 274, AND CASES THERE CITED.  THE "END PROPOSED" IS "POWER
ADEQUATE" IN THE COURT TO PRESERVE ORDER AND DECORUM AND TO COMPEL
OBEDIENCE TO VALID COURT ORDERS.  TO ACHIEVE THESE ENDS - DECORUM AND
OBEDIENCE TO ORDERS - COURTS MUST HAVE POWER TO ACT IMMEDIATELY, AND
UPON THIS NEED THE POWER OF CONTEMPT RESTS.  CONCURRING OPINION, UNITED
STATES V. UNITED MINE WORKERS OF AMERICA, SUPRA, 330 U.S. AT 331-332. 
MEASURED BY THIS TEST, AS JUDGE CHARLES CLARK'S DISSENTING OPINION
POINTED OUT, THERE WAS NO NECESSITY HERE FOR JUDGE MEDINA'S SUMMARY
ACTION, BECAUSE THE TRIAL WAS OVER AND THE DANGER OF OBSTRUCTING IT WAS
PASSED.  FOR THE SAME REASON THERE WAS NO LONGER NEED, SO FAR AS THAT
TRIAL WAS CONCERNED, TO TRY PETITIONERS FOR THEIR COURTROOM CONDUCT
WITHOUT BENEFIT OF THE BILL OF RIGHTS PROCEDURAL SAFEGUARDS. 

A CONCURRING JUDGE IN THE COURT OF APPEALS FEARED THAT IT MIGHT BRING
ABOUT "DEMORALIZATION OF THE COURT'S AUTHORITY" SHOULD ANY ONE OTHER
THAN JUDGE MEDINA TRY THE CASE.  THE REASON GIVEN WAS:  "FOR INSTANCE,
IN ALL LIKELIHOOD, AT A TRIAL OF THE LAWYERS, SACHER WOULD INTRODUCE
THE TESTIMONY OF HIMSELF AND OTHERS IN AN EFFORT TO PROVE THAT HE WAS
NOT 'ANGRILY SHOUTING,' AS CHARGED IN SPECIFICATION VII, AND DID NOT
SPEAK 'IN AN INSOLENT MANNER,' AS CHARGED IN SPECIFICATION VIII;
GLADSTEIN WOULD SIMILARLY SEEK TO PROVE THERE HE DID NOT 'ANGRILY'
ADVANCE 'TOWARD THE BENCH' OR MAKE REMARKS IN A 'TRUCULENT MANNER,' AS
CHARGED IN SPECIFICATION VIII, AND DID NOT SPEAK TO THE JUDGE 'IN A
SARCASTIC AND IMPERTINENT MANNER,' AS CHARGED IN SPECIFICATION XI;
ETC., ETC."  182 F.2D 416, 461.  WHAT WOULD BE WRONG WITH THIS?  ARE
DEFENDANTS ACCUSED BY JUDGES OF BEING OFFENSIVE TO THEM TO BE
CONCLUSIVELY PRESUMED GUILTY ON THE THEORY THAT JUDGES' OBSERVATIONS
AND INFERENCES MUST BE ACCEPTED AS INFALLIBLE?  THERE IS ALWAYS A
POSSIBILITY THAT A JUDGE MAY BE HONESTLY MISTAKEN.  UNFORTUNATELY
HISTORY AND THE EXISTENCE OF OUR BILL OF RIGHTS INDICATE THAT JUDICIAL
ERRORS MAY BE FROM WORSE CAUSES. 

THE HISTORIC POWER OF SUMMARY CONTEMPT GREW OUT OF THE NEED FOR
JUDICIAL ENFORCEMENT OF ORDER AND DECORUM IN THE COURTROOM AND TO
COMPEL OBEDIENCE TO COURT ORDERS.  I BELIEVE THE IDEA OF JUDGES HAVING
UNRESTRICTED POWER TO BY-PASS THE BILL OF RIGHTS IN RELATION TO
CRIMINAL TRIALS AND PUNISHMENTS IS AN ILLEGITIMATE OFFSPRING OF THIS
HISTORIC COERCIVE CONTEMPT POWER.  IT HAS BEEN SAID THAT SUCH A
"SUMMARY PROCESS OF THE STAR CHAMBER SLIPPED INTO THE COMMON LAW
COURTS," AND THAT THE ALLEGED ANCIENT HISTORY TO SUPPORT ITS EXISTENCE
IS "FICTION."  (FN7)  WITH THE SPECIFIC RESERVATION THAT I THINK
SUMMARY CONTEMPT PROCEEDINGS MAY BE EMPLOYED SOLELY TO ENFORCE
OBEDIENCE AND ORDER, AND NOT TO IMPOSE UNCONDITIONAL CRIMINAL
PUNISHMENT, I AGREE WITH THIS STATEMENT OF MR. JUSTICE HOLMES: "I WOULD
GO AS FAR AS ANY MAN IN FAVOR OF THE SHARPEST AND MOST SUMMARY
ENFORCEMENT OF ORDER IN COURT AND OBEDIENCE TO DECREES, BUT WHEN THERE
IS NO NEED FOR IMMEDIATE ACTION CONTEMPTS ARE LIKE ANY OTHER BREACH OF
LAW AND SHOULD BE DEALT WITH AS THE LAW DEALS WITH OTHER ILLEGAL
ACTS."  TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402, 425-426. 

I BELIEVE THESE PETITIONERS WERE ENTITLED TO A JURY TRIAL.  I BELIEVE
A JURY IS ALL THE MORE NECESSARY TO OBTAIN A FAIR TRIAL WHEN THE
ALLEGED OFFENSE RELATES TO CONDUCT THAT HAS PERSONALLY AFFRONTED A
JUDGE.  THE MAJORITY HERE AND THE MAJORITY BELOW APPEAR TO HAVE
AFFIRMED THESE CONVICTIONS ON THE ASSUMPTION THAT APPELLATE REVIEW SO
FULLY GUARANTEES A FAIR TRIAL THAT IT IS AN ADEQUATE SUBSTITUTE FOR
TRIAL BY JURY.  WHILE I AGREE THAT THE POWER OF LAWYER-JUDGES TO SET
ASIDE CONVICTIONS DEEMED PREJUDICIAL OR ERRONEOUS IS ONE VITAL
SAFEGUARD OF LIBERTY, I CANNOT AGREE THAT IT AFFORDS THE FULL MEASURE
OF SECURITY WHICH THE CONSTITUTION HAS PROVIDED AGAINST UNJUST
CONVICTIONS.  (FN8)  PREFERENCE FOR TRIAL BY A JURY OF LAYMEN OVER
TRIAL BY LAWYER-JUDGES LIES BEHIND THE CONSTITUTIONAL GUARANTEE OF
TRIAL BY JURY.  I AM AMONG THOSE WHO STILL BELIEVE IN TRIAL BY JURY AS
ONE OF THE INDISPENSABLE SAFEGUARDS OF LIBERTY. 

FN1  THE DEFENDANT DENNIS, WHO HAD ACTED AS HIS OWN LAWYER, IS
INCLUDED IN THIS GROUP. 

FN2  WHILE THE FULL TEXT OF THE COLLOQUY IS PERTINENT, ALL OF IT IS
NOT REPEATED HERE AS IT IS SET OUT AT PP. 80-81 OF THE APPENDIX TO MR.
JUSTICE FRANKFURTER'S OPINION. 

FN3  THE COURT OF APPEALS HELD THAT THE RECORD FAILED TO SUSTAIN THE
ACCUSATIONS THAT SACHER HAD SPOKEN FALSELY ABOUT THE PRESS RELEASES. 
SPECIFICATION XV BASED ON THAT CHARGE WAS REVERSED. 

FN4  THE PARTS OF SACHER'S STATEMENT IMMEDIATELY PRECEDING THE
COURT'S INTERRUPTION WERE AS FOLLOWS: 

"AND I RESPECTFULLY SUBMIT, YOUR HONOR, THAT A COUNTRY WITH AN
INTIMIDATED BAR IS A COUNTRY WHOSE LIBERTIES ARE IN DANGER.  HERE IN
AMERICA WE KNOW THAT THE AMERICAN BAR OCCUPIES A PLACE OF HONOR IN THE
ACHIEVEMENT AND PRESERVATION OF THE LIBERTIES OF OUR PEOPLE, AND I SAY,
YOUR HONOR, WITH ALL DUE RESPECT TO YOUR DECISION AND JUDGMENT HERE
THAT ANY THREAT TO THE INTEGRITY, INDEPENDENCE AND COURAGE OF THE BAR
CAN ONLY CONSTITUTE A THREAT TO THE INTEGRITY AND WHOLESOMENESS AND
PRESERVATION OF OUR CIVIL LIBERTIES. 

"FOR MYSELF LET ME SAY, YOUR HONOR, THAT I SPEAK OF INTIMIDATION NOT
IN PERSONAL TERMS.  IF IT BE NECESSARY THAT IN THE CAUSE OF AMERICAN
LIBERTY I SHALL HAVE TO SERVE SIX MONTHS, THEN I SAY TO YOUR HONOR THE
PRICE WILL HAVE BEEN VERY, VERY SMALL.  I HOPE THAT IT WILL NOT BE
NECESSARY IN OUR COUNTRY FOR AN ADVOCATE TO HAVE TO DO THAT, BUT IF IT
BE NECESSARY  ...  . 

"THE COURT:  IT ISN'T THE PRICE OF LIBERTY; IT IS THE PRICE OF
MISBEHAVIOR AND DISORDER AS STATED IN THE CERTIFICATE. 

"MR. SACHER:  I SAY TO YOUR HONOR  ...  ." 

FN5  I DO NOT THINK THE CONVICTIONS OF THESE LAWYERS FOR CONTEMPT
SHOULD BE AFFIRMED ON THE THEORY THAT SUCH HAS ALREADY BEEN EXPRESSLY
OR IMPLIEDLY DONE BY THE "DIFFERENTLY COMPOSED COURT OF APPEALS" THAT
AFFIRMED CONVICTION OF THE COMMUNIST LEADERS.  THAT "DIFFERENTLY
COMPOSED" COURT MERELY HELD THAT NO CONDUCT OF THE TRIAL JUDGE CALLED
FOR REVERSING THE CONVICTIONS OF THE COMMUNIST LEADERS.  I THINK THAT
AFFIRMANCE DOES NOT SUPPORT AN INFERENCE THAT THE "DIFFERENTLY
COMPOSED" COURT WOULD ALSO HAVE SUSTAINED A JUDGMENT OF CONTEMPT
AGAINST THE LAWYERS.  MOREOVER WHILE THIS "DIFFERENTLY COMPOSED" COURT
SEVERELY CONDEMNED THE LAWYERS' CONDUCT, IT APPARENTLY FELT CONSTRAINED
TO IMPLY THAT THE TRIAL JUDGE "DID NOT CONDUCT HIMSELF WITH THE
IMPERTURBABILITY OF A RHADAMANTHUS ...  ."  183 F.2D 226. 

FN6  NEW ORLEANS V. STEAMSHIP CO., 20 WALL.  387, 392; GOMPERS V.
UNITED STATES, 233 U.S. 604, 610, 611; MICHAELSON V. UNITED STATES, 266
U.S. 42, 66-67; PENDERGAST V. UNITED STATES, 317 U.S. 412, 416-418; BUT
CF. MYERS V. UNITED STATES, 264 U.S. 95, 103. 

FN7  FRANKFURTER AND LANDIS, POWER OF CONGRESS OVER PROCEDURE IN
CRIMINAL CONTEMPTS IN "INFERIOR" FEDERAL COURTS, 37 HARV. L. REV. 1010,
1047.  SEE ALSO NELLES AND KING, CONTEMPT BY PUBLICATIONS IN THE UNITED
STATES, 28 COL. L. REV. 401; FOX, HISTORY OF CONTEMPT OF COURT (1927). 

FN8  DURING THE PARLIAMENTARY DISCUSSION OF MR. FOX'S LIBEL BILL,
WHICH SOUGHT TO PRESERVE TRIAL BY JURY, IT WAS CALLED TO THE
PARLIAMENT'S ATTENTION THAT MR. JUSTICE BULLER, WHILE TRYING THE DEAN
OF ST. ASAPH AT SHREWSBURY, HAD DECLARED THE "RIGHTS OF APPEAL" TO BE
THE "DEAREST BIRTH-RIGHTS" OF AN ENGLISHMAN:  "THE MARQUIS (OF
LANSDOWNE) RIDICULED THE DECLARATION THAT A RIGHT OF APPEAL IN ARREST
OF JUDGMENT, AND OF MOVING FOR A WRIT OF ERROR, WAS ONE OF THE DEAREST
BIRTH-RIGHTS OF ENGLISHMEN, ASSERTING THAT IT WAS NEITHER MORE NOR LESS
THAN THE BEING TURNED OVER FROM ONE SET OF LAWYERS TO ANOTHER, AND FROM
THAT OTHER TO A THIRD.  IN FACT, IT WAS TO BE TURNED OVER FROM THE
JUDGE WHO TRIED THE CAUSE, TO HIMSELF AND THREE OTHERS, IN A SECOND
PLACE; AND FROM THEM TO THEMSELVES AGAIN, MIXED WITH A FEW MORE JUDGES,
IN A THIRD PLACE]"  29 HANSARD, PARLIAMENTARY HISTORY OF ENGLAND, P.
1419. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

BITTER EXPERIENCE HAS SHARPENED OUR REALIZATION THAT A MAJOR TEST OF
TRUE DEMONCRACY IS THE FAIR ADMINISTRATION OF JUSTICE.  IF THE
CONDITIONS FOR A SOCIETY OF FREE MEN FORMULATED IN OUR BILL OF RIGHTS
ARE NOT TO BE TURNED INTO MERE RHETORIC, INDEPENDENT AND IMPARTIAL
COURTS MUST BE AVAILABLE FOR THEIR ENFORCEMENT.  TO THAT END, COURTS
MUST HAVE THE POWER TO DEAL WITH ATTEMPTS TO DISRUPT THE COURSE OF
JUSTICE.  THIS SAFEGUARD CONCERNS NOT MERELY THE LITIGANTS IN A
PARTICULAR CASE; IT IS EVERYONE'S CONCERN.  THE IMPARTIAL
ADMINISTRATION OF JUSTICE PRESUPPOSES THE DIGNIFIED AND EFFECTIVE
CONDUCT OF JUDICIAL PROCEEDINGS.  THAT IN TURN IS DEPENDENT ON A PROPER
ATMOSPHERE IN THE COURTROOM.   THUS, THE POWER OF COURTS TO PUNISH FOR
CONTEMPT IS A MEANS OF ASSURING THE ENFORCEMENT OF JUSTICE ACCORDING TO
LAW.  THE PROTECTION OF THE MOST GENEROUSLY CONCEIVED CIVIL LIBERTIES
PRESUPPOSES A COURT OVERAWED NEITHER BY INTERESTS WITHOUT NOR BY
DISRUPTIVE TACTICS WITHIN THE COURTROOM.  SUCH IS THE TEACHING OF THE
HISTORY OF ENGLISH-SPEAKING NATIONS. 

NO DECISION OF THIS COURT HAS REJECTED THIS TEACHING.  CERTAINLY NONE
OF THE PROFESSIONS OF THE COURT'S OPINIONS HAS.  WHILE, TO BE SURE, IN
A FEW INSTANCES RESTRICTIONS TOO CONFINING AND, FROM MY POINT OF VIEW,
UNWARRANTED HAVE BEEN PLACED UPON THIS POWER OF COURTS TO PUNISH FOR
CONTEMPT, THE POWER ITSELF HAS NEVER BEEN DENIED.  THE FEDERAL COURTS
MAY, UNDER APPROPRIATE CIRCUMSTANCES, INFLICT PUNISHMENT FOR CONTEMPT
WITHOUT THOSE CONSTITUTIONAL PROCEDURAL SAFEGUARDS NECESSARY FOR THE
PROSECUTION OF CRIME IN ITS HISTORICAL AND COLLOQUIAL SENSE. 

BUT THIS POWER DOES NOT AUTHORIZE THE ARBITRARY IMPOSITION OF
PUNISHMENT.  TO DISPENSE WITH INDICTMENT BY GRAND JURY AND TRIAL BY A
JURY OF TWELVE DOES NOT MEAN THE RIGHT TO DISREGARD REASON AND
FAIRNESS.  REASON AND FAIRNESS DEMAND, EVEN IN PUNISHING CONTEMPT,
PROCEDURAL SAFEGUARDS WITHIN WHICH THE NEEDS FOR THE EFFECTIVE
ADMINISTRATION OF JUSTICE CAN BE AMPLY SATISFIED WHILE AT THE SAME TIME
THE REACH OF SO DRASTIC A POWER IS KEPT WITHIN LIMITS THAT WILL
MINIMIZE ABUSE.  WHILE EXPERIENCE HAS SHOWN THE NECESSITY OF
RECOGNIZING THAT COURTS POSSESS THIS AUTHORITY, EXPERIENCE HAS ALSO
PROVEN THAT RESTRICTIONS APPROPRIATE TO THE PURPOSES OF THE POWER MUST
FENCE IN ITS EXERCISE.  HENCE CONGRESS BY LEGISLATION DATING BACK MORE
THAN A HUNDRED YEARS, HAS PUT GEOGRAPHIC AND PROCEDURAL RESTRICTIONS
UPON THE POWER OF UNITED STATES COURTS TO PUNISH SUMMARILY FOR
CONTEMPT.  SEE MICHAELSON V. UNITED STATES, 266 U.S. 42; NYE V. UNITED
STATES, 313 U.S. 33.  AND EVEN BEFORE CONGRESS DREW ON ITS POWER TO PUT
LIMITS ON INHERENT JUDICIAL AUTHORITY, THIS COURT DERIVED THE GENERAL
BOUNDARIES OF THIS POWER FROM ITS PURPOSE, SEE ANDERSON V. DUNN, 6
WHEAT.  204; MORE RECENTLY, THE COURT HAS DEFINED THE PROCEDURE
APPROPRIATE FOR ITS EXERCISE.  SEE COOKE V. UNITED STATES, 267 U.S.
517. 

THE COURT DID SO FOR A REASON DEEPLY IMBEDDED IN OUR LEGAL SYSTEM AND
BY THAT VERY FACT TOO OFTEN NEGLECTED.  TIMES OF TENSION, WHICH ARE
USUALLY PERIODS OF WAR AND THEIR AFTERMATH, BRING IT TO THE SURFACE. 
REFLECTING NO DOUBT THEIR CONCERN OVER UNTOWARD EVENTS IN LAW
ENFORCEMENT ARISING OUT OF THE FIRST WORLD WAR, MR. JUSTICE BRANDEIS
AND MR. JUSTICE HOLMES GAVE QUIET WARNING WHEN THEY OBSERVED THAT "IN
THE DEVELOPMENT OF OUR LIBERTY INSISTENCE UPON PROCEDURAL REGULARITY
HAS BEEN A LARGE FACTOR."  BURDEAU V. MCDOWELL, 256 U.S. 465, 477.  IT
IS NOT FOR NOTHING THAT MOST OF THE PROVISIONS OF OUR BILL OF RIGHTS
ARE CONCERNED WITH MATTERS OF PROCEDURE. 

THAT IS WHAT THIS CASE IS ABOUT - "PROCEDURAL REGULARITY."  NOT
WHETHER THESE PETITIONERS HAVE BEEN GUILTY OF CONDUCT PROFESSIONALLY
INEXCUSABLE, BUT WHAT TRIBUNAL SHOULD SIT IN JUDGMENT; NOT WHETHER THEY
SHOULD BE PUNISHED, BUT WHO SHOULD METE OUT THE APPROPRIATE PUNISHMENT;
NOT WHETHER A FEDERAL COURT HAS AUTHORITY TO PREVENT ITS PROCEEDINGS
FROM BEING SUBVERTED, BUT HOW THAT AUTHORITY SHOULD BE EXERCISED SO AS
TO ASSURE THE RECTITUDE OF LEGAL PROCEEDINGS AND AT THE SAME TIME NOT
DETRACT FROM THE AUTHORITY OF LAW ITSELF. 

THIS CASE ARISES OUT OF THE TRIAL OF THE ELEVEN COMMUNIST PARTY
LEADERS WHOSE CONVICTIONS WERE SUSTAINED IN DENNIS V. UNITED STATES,
341 U.S. 494.  IN MANY WAYS IT WAS A TRIAL WHOLLY OUT OF THE ORDINARY -
IN ITS LENGTH, THE NATURE OF THE ISSUES, THE POLITICAL AND EMOTIONAL
ATMOSPHERE IN WHICH THEY WERE ENVELOPED, THE CONDUCT OF COURT AND
COUNSEL, THE CONFLICTS BETWEEN THEM.  AFTER SEVERAL WEEKS OF
PROCEEDINGS ON PRE-TRIAL MOTIONS, THE TRIAL PROPER GOT UNDER WAY.  NINE
WEEKS WERE CONSUMED IN GETTING A JURY AND THIRTY MORE IN TRYING THE
CASE TO THE JURY.  IMMEDIATELY AFTER THE JURY BROUGHT IN THE VERDICT OF
GUILTY AGAINST THE DEFENDANTS, THE TRIAL JUDGE CHARGED THE FIVE DEFENSE
LAWYERS AND ONE OF THE DEFENDANTS (WHO HAD CONDUCTED HIS OWN DEFENSE)
WITH CONTEMPT OF COURT DURING THE TRIAL.  HE FILED A CAREFULLY
PREPARED, ELABORATE CERTIFICATE OF CONTEMPT CONTAINING FORTY CHARGES,
AND WITHOUT FURTHER HEARING FOUND THEM GUILTY AND IMPOSED SENTENCES
RANGING FROM THIRTY DAYS' TO SIX MONTHS' IMPRISONMENT.  THESE
SPECIFICATIONS CHARGED MISCONDUCT OF A NATURE ESPECIALLY REPREHENSIBLE
WHEN COMMITTED BY LAWYERS, WHO, AS OFFICERS OF THE COURT, ARE PART OF
OUR JUDICIAL SYSTEM.  AS SUCH THEY ARE UNDER A DUTY TO FURTHER, NOT
OBSTRUCT, THE RATIONAL AND FAIR ADMINISTRATION OF JUSTICE. 

THE CERTIFICATE ON WHICH PETITIONERS WERE FOUND GUILTY OF CONTEMPT
CHARGED THIRTY-NINE OCCURRENCES DURING THE TRIAL AS THIRTY-NINE ITEMS
OF MISCONDUCT.  HOWEVER, THESE SPECIFIED ITEMS WERE NOT REGARDED BY THE
JUDGE AS DISCRETE INSTANCES.  HE DEEMED THEM MANIFESTATIONS OF A
CONSPIRACY BY THE CONTEMNORS AGAINST HIM.  TO BE SURE, SPECIFICATIONS
II TO XL WERE INDIVIDUALLY CHARGED AND THEREFORE ARE TECHNICALLY
SUSTAINABLE BY THEMSELVES AND NOT MERELY AS OVERT ACTS OF THE
CONSPIRACY, SET FORTH WITH MUCH DETAIL AS SPECIFICATION I. BUT THE CORE
OF THE CHARGES - THE GRAVAMEN OF THE ACCUSATIONS AGAINST THESE
PETITIONERS - WAS THAT THE PETITIONERS HAD: 

"JOINED IN A WILFUL, DELIBERATE, AND CONCERTED EFFORT TO DELAY AND
OBSTRUCT THE TRIAL OF UNITED STATES V. FOSTER, ET AL., C 128-87, FOR
THE PURPOSE OF CAUSING SUCH DISORDER AND CONFUSION AS WOULD PREVENT A
VERDICT BY A JURY ON THE ISSUES RAISED BY THE INDICTMENT; AND FOR THE
PURPOSE OF BRINGING THE COURT AND THE ENTIRE FEDERAL JUDICIAL SYSTEM
INTO GENERAL DISCREDIT AND DISREPUTE, BY ENDEAVORING TO DIVERT THE
ATTENTION OF THE COURT AND JURY FROM THE SERIOUS CHARGE AGAINST THEIR
CLIENTS OF A CONSPIRACY IN SUBSTANCE TO TEACH AND ADVOCATE THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE,
BY ATTACKING THE PRESIDING JUDGE AND ALL THE JUDGES OF THIS COURT, THE
JURY SYSTEM IN THIS DISTRICT, THE DEPARTMENT OF JUSTICE OF THE UNITED
STATES, THE PRESIDENT OF THE UNITED STATES, THE POLICE OF NEW YORK
CITY, AND THE PUBLIC PRESS OF NEW YORK AND OTHER CITIES." 

THOUGH THE CERTIFICATE MAKES IT PLAIN ENOUGH, A READING OF THE RECORD
LEAVES NO DOUBT THAT IN THE JUDGE'S MIND THE INDIVIDUAL OCCURRENCES SET
FORTH IN SPECIFICATIONS II TO XL DERIVED THEIR CHIEF SIGNIFICANCE FROM
HIS FINDING THAT THEY WERE TRIBUTARY TO THE DESIGN UPON WHICH THE
PETITIONERS HAD EMBARKED - A CONSPIRACY AGAINST THE JUDGE IN ORDER TO
PREVENT A FAIR TRIAL OF THE ISSUES.  HE FOUND THEM GUILTY OF THAT.  BUT
THE COURT OF APPEALS REVERSED - AND THE GOVERNMENT HAS NOT QUESTIONED
THIS REVERSAL OF THE TRIAL JUDGE - THE CONVICTIONS OF THE PETITIONERS
ON THE MAIN CHARGE THAT OF CONSPIRACY.  HOWEVER, THAT COURT, WITH ONE
JUDGE DISSENTING, DID SUSTAIN THE CONVICTIONS ON THIRTY-SEVEN OTHER
SPECIFICATIONS.  182 F.2D 416.  CONVICTIONS ON TWO SPECIFICATIONS WERE
FOUND UNSUPPORTED BY EVIDENCE.  IBID. 

I WOULD NOT REMOTELY MINIMIZE THE GRAVITY OF THE CONDUCT OF WHICH THE
PETITIONERS HAVE BEEN FOUND GUILTY, LET ALONE CONDONE IT.  BUT THEIR
INTRINSIC GUILT IS NOT RELEVANT TO THE ISSUE BEFORE US. THIS COURT
BROUGHT THE CASE HERE IN ORDER TO CONSIDER WHETHER THE TRIAL COURT
FOLLOWED THE PROPER PROCEDURE IN DETERMINING THAT THE MISCONDUCT OF THE
PETITIONERS SUBJECTED THEM TO PUNISHMENT.  342 U S. 858.  TIME OF OF
MIND THIS COURT HAS REVERSED CONVICTIONS FOR THE MOST HEINOUS OFFENSES,
EVEN THOUGH NO DOUBT ABOUT THE GUILT OF THE DEFENDANTS WAS
ENTERTAINED.  IT REVERSED BECAUSE THE MODE BY WHICH GUILT WAS
ESTABLISHED DISREGARDED THOSE STANDARDS OF PROCEDURE WHICH ARE SO
PRECIOUS AND SO IMPORTANT FOR OUR SOCIETY.  SO HERE, THE ONLY QUESTION
FOR DECISION IS WHETHER, IN THE CIRCUMSTANCES OF THIS CASE, THE TRIAL
JUDGE HIMSELF SHOULD, WITHOUT NOTICE AND HEARING AND AFTER THE
SUCCESSFUL TERMINATION OF THE TRIAL, HAVE SUMMARILY PUNISHED A SERIES
OF CONTEMPTS GROWING OUT OF WHAT HE CONCEIVED TO BE A CENTRAL
MISCHIEVOUS DESIGN, COMMITTED OVER A PERIOD OF NINE MONTHS; OR WHETHER
ANOTHER JUDGE, DESIGNATED BY THE CHIEF JUDGE OF THE COURT OF APPEALS OR
OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, SHOULD
HAVE HEARD, AFTER DUE NOTICE, THE CHARGES OF CONTEMPT MADE BY THE TRIAL
JUDGE.  AT THE END OF THE TRIAL THE JUDGE WAS NOT CONFRONTED WITH THE
ALTERNATIVES OF DOING WHAT HE DID OR ALLOWING THE CONTEMNORS TO GO
UNPUNISHED.  THE QUESTION WAS NOT PUNISHMENT, BUT WHO SHOULD PUNISH. 
DUE REGARD FOR SUCH PROCEDURAL QUESTIONS, TOO OFTEN MISCONCEIVED AS
NARROW AND TECHNICAL, ALONE JUSTIFIES THE TRUTH OF ONE OF THE GREAT
BOASTS OF OUR DEMOCRACY, THE ESSENTIAL FAIRNESS OF OUR JUDICIAL
SYSTEM. 

THE PARTICULAR CIRCUMSTANCES OF THIS CASE COMPEL ME TO CONCLUDE THAT
THE TRIAL JUDGE SHOULD NOT HAVE COMBINED IN HIMSELF THE FUNCTIONS OF
ACCUSER AND JUDGE.  FOR HIS ACCUSATIONS WERE NOT IMPERSONAL.  THEY
CONCERNED MATTERS IN WHICH HE PERSONALLY WAS DEEPLY ENGAGED.  WHATEVER
OCCASION MAY HAVE EXISTED DURING THE TRIAL FOR SITTING IN JUDGMENT UPON
CLAIMS OF PERSONAL VICTIMIZATION, IT CEASED AFTER THE TRIAL HAD
TERMINATED.  IT FALLS TO THIS COURT AS HEAD OF THE FEDERAL JUDICIAL
SYSTEM TO CORRECT SUCH ABUSE OF JUDICIAL POWER. 

ALL GRANTS OF POWER, INCLUDING THE VERBALLY UNLIMITED TERMS OF RULE
42(A) OF THE RULES OF CRIMINAL PROCEDURE, ARE SUBJECT TO THE INHERENT
LIMITATION THAT THE POWER SHALL BE FAIRLY USED FOR THE PURPOSE FOR
WHICH IT IS CONFERRED.  IT IS A LIMITATION DERIVED NOT MERELY FROM
GENERAL CONSIDERATIONS OF REASON BUT FROM THE TRADITIONAL CONCEPTS OF
THE PROPER DISCHARGE OF THE JUDICIAL FUNCTION.  "A CRIMINAL CONTEMPT
MAY BE PUNISHED SUMMARILY," SO RUNS RULE 42(A), "IF THE JUDGE CERTIFIES
THAT HE SAW OR HEARD THE CONDUCT CONSTITUTING THE CONTEMPT AND THAT IT
WAS COMMITTED IN THE ACTUAL PRESENCE OF THE COURT."  THE RULE MERELY
PERMITS SUMMARY PUNISHMENT.  IT DOES NOT COMMAND SUMMARY PUNISHMENT OF
ALL CONTEMPTS "COMMITTED IN THE ACTUAL PRESENCE OF THE COURT," IN ALL
CIRCUMSTANCES AND AT ANY TIME.  THAT THERE ARE UNEXPRESSED LIMITS TO
THIS POWER IS RECOGNIZED EVEN BY THE GOVERNMENT.  FOR IT CONCEDES THAT
A JUDGE COULD NOT SUMMARILY PUNISH CONTEMPT WITHOUT NOTICE AND HEARING
AT ANY UNDEFINED TIME LONG AFTER IT HAS OCCURRED IN HIS PRESENCE.  IN
SHORT, RULE 42(A), WHICH IN 1946 DECLARED WHAT THE LAW WAS, (FN1)
ACKNOWLEDGES AN UNDEFINED POWER FOR IMPOSING SUMMARY PUNISHMENT WITHOUT
EXPRESSLY LAYING DOWN THE BOUNDARIES OF THE POWER GRANTED.  LEGISLATION
NORMALLY CARRIES SUCH IMPLICATIONS. 

TO RECOGNIZE THE GENERALITY OF A POWER IS THE BEGINNING NOT THE END
OF THE INQUIRY WHETHER IN THE SPECIFIC CIRCUMSTANCES WHICH INVOKED THE
POWER DUE REGARD WAS HAD FOR THE IMPLIED RESTRICTIONS.  AMONG THE
RESTRICTIONS TO BE IMPLIED, AS A MATTER OF COURSE, ARE TWO BASIC
PRINCIPLES OF OUR LAW - THAT NO JUDGE SHOULD SIT IN A CASE IN WHICH HE
IS PERSONALLY INVOLVED AND THAT NO CRIMINAL PUNISHMENT SHOULD BE METED
OUT EXCEPT UPON NOTICE AND DUE HEARING, UNLESS OVERRIDING NECESSITY
PRECLUDES SUCH INDISPENSABLE SAFEGUARDS FOR ASSURING FAIRNESS AND
AFFORDING THE FEELING THAT FAIRNESS HAS BEEN DONE.  OBSERVANCE OF THESE
COMMONPLACE TRADITIONS HAS ITS PRICE.  IT SOMETIMES RUNS COUNTER TO
PUBLIC FEELING THAT BROOKS NO DELAY.  AT TIMES IT SEEMS TO ENTAIL A
NEEDLESSLY CUMBERSOME PROCESS FOR DEALING WITH THE OBVIOUS.  BUT AS A
PROCESS IT IS ONE OF THE CHERISHED AND INDISPENSABLE ACHIEVEMENTS OF
WESTERN CIVILIZATION.  IT IS HIS DISREGARD OF THESE CONTROLLING
TRADITIONS THAT FORCES ME TO CONCLUDE THAT THE DISTRICT JUDGE HOWEVER
SORELY TRIED, ERRED IN USING THE SUMMARY CONTEMPT PROCEDURE IN THE
CIRCUMSTANCES BEFORE HIM. 

HAPPILY FEW SUCH EXERCISES OF SUMMARY AUTHORITY HAVE COME BEFORE THIS
COURT.  STILL RARER ARE THE INSTANCES WHERE A JUDGE IS DEEPLY INVOLVED
IN THE CONDUCT ON WHICH HE HAS TO PASS JUDGMENT.  SUCH A SITUATION DID
COME HERE SOME TWENTY-FIVE YEARS AGO IN COOKE V. UNITED STATES, 267
U.S. 517.  MR. CHIEF JUSTICE TAFT THEN TOOK OCCASION, ON BEHALF OF THE
WHOLE COURT, TO LAY DOWN THE GUIDING CONSIDERATIONS WHICH SHOULD HAVE
BEEN FOLLOWED IN THIS CASE: 

"THE POWER OF CONTEMPT WHICH A JUDGE MUST HAVE AND EXERCISE IN
PROTECTING THE DUE AND ORDERLY ADMINISTRATION OF JUSTICE AND IN
MAINTAINING THE AUTHORITY AND DIGNITY OF THE COURT IS MOST IMPORTANT
AND INDISPENSABLE.  BUT ITS EXERCISE IS A DELICATE ONE AND CARE IS
NEEDED TO AVOID ARBITRARY OR OPPRESSIVE CONCLUSIONS.  THIS RULE OF
CAUTION IS MORE MANDATORY WHERE THE CONTEMPT CHARGED HAS IN IT THE
ELEMENT OF PERSONAL CRITICISM OR ATTACK UPON THE JUDGE.  THE JUDGE MUST
BANISH THE SLIGHTEST PERSONAL IMPULSE TO REPRISAL, BUT HE SHOULD NOT
BEND BACKWARD AND INJURE THE AUTHORITY OF THE COURT BY TOO GREAT
LENIENCY.  THE SUBSTITUTION OF ANOTHER JUDGE WOULD AVOID EITHER
TENDENCY BUT IT IS NOT ALWAYS POSSIBLE.  OF COURSE WHERE ACTS OF
CONTEMPT ARE PALPABLY AGGRAVATED BY A PERSONAL ATTACK UPON THE JUDGE IN
ORDER TO DRIVE THE JUDGE OUT OF THE CASE FOR ULTERIOR REASONS, THE
SCHEME SHOULD NOT BE PERMITTED TO SUCCEED.  BUT ATTEMPTS OF THIS KIND
ARE RARE.  ALL OF SUCH CASES, HOWEVER, PRESENT DIFFICULT QUESTIONS FOR
THE JUDGE.  ALL WE CAN SAY UPON THE WHOLE MATTER IS THAT WHERE
CONDITIONS DO NOT MAKE IT IMPRACTICABLE, OR WHERE THE DELAY MAY NOT
INJURE PUBLIC OR PRIVATE RIGHT, A JUDGE CALLED UPON TO ACT IN A CASE OF
CONTEMPT BY PERSONAL ATTACK UPON HIM, MAY, WITHOUT FLINCHING FROM HIS
DUTY, PROPERLY ASK THAT ONE OF HIS FELLOW JUDGES TAKE HIS PLACE. 
CORNISH V. THE UNITED STATES, 299 FED. 283, 285; TOLEDO COMPANY V. THE
UNITED STATES, 237 FED. 986, 988. 

"THE CASE BEFORE US IS ONE IN WHICH THE ISSUE BETWEEN THE JUDGE AND
THE PARTIES HAD COME TO INVOLVE MARKED PERSONAL FEELING THAT DID NOT
MAKE FOR AN IMPARTIAL AND CALM JUDICIAL CONSIDERATION AND CONCLUSION,
AS THE STATEMENT OF THE PROCEEDINGS ABUNDANTLY SHOWS.  WE THINK,
THEREFORE, THAT WHEN THIS CASE AGAIN REACHES THE DISTRICT COURT TO
WHICH IT MUST BE REMANDED, THE JUDGE WHO IMPOSED THE SENTENCE HEREIN
SHOULD INVITE THE SENIOR CIRCUIT JUDGE OF THE CIRCUIT TO ASSIGN ANOTHER
JUDGE TO SIT IN THE SECOND HEARING OF THE CHARGE AGAINST THE
PETITIONER."  267 U.S. AT 539. 

IN THE COOKE CASE THE COURT DID MUCH MORE THAN SET ASIDE A SENTENCE
OF THIRTY DAYS FOR CONTEMPT BECAUSE "THE PROCEDURE PURSUED WAS UNFAIR
AND OPPRESSIVE," 267 U.S. 517, 538.  THERE, AS HERE, THE CONTEMPT WAS
BY A LAWYER; THERE, AS HERE, THE TRIAL COURT'S ACTION WAS AFFIRMED BY A
COURT OF APPEALS IN AN OPINION BY ONE OF THE MOST EMINENT JUDGES OF HIS
DAY.  295 F. 292.  IN REVERSING THE TWO LOWER COURTS AND FINDING AN
ABUSE OF JUDICIAL DISCRETION BY THE TRIAL COURT, THIS COURT DID WHAT IT
FEELS CALLED UPON TO DO FROM TIME TO TIME IN A CLASS OF CASES THAT HAVE
A CLOSE KINSHIP TO MATTERS DEEMED FUNDAMENTAL WITHIN THE CONCEPT OF DUE
PROCESS.  IT DEFINED THE PROCEDURAL STANDARDS TO BE OBSERVED BY THE
LOWER COURTS.  THE GENERAL DIRECTION THUS GIVEN TO LOWER COURTS IS NOT
LIKELY TO BE RESPECTED BY THEM IF THIS COURT IS TOO GENIAL IN ENFORCING
ITS OBSERVANCE. 

ENFORCEMENT IS NOT HAD BY REPETITION OF GENERALITIES AND SANCTION OF
THEIR DISREGARD IN PRACTICE.  WE MUST START, NO DOUBT, WITH A
PREDISPOSITION IN FAVOR OF THE PROPRIETY OF A TRIAL JUDGE'S ACTION. 
HIS IS THE INITIAL RESPONSIBILITY, AND WE MUST ASSUME THAT THE
DISCRETION WITH WHICH HE IS ENTRUSTED WILL NORMALLY BE EXERCISED BY
JUDGES OF FIRMNESS, SELF-DISCIPLINE, AND GOOD SENSE.  THESE
CONSIDERATIONS SHOULD COUNT HEAVILY ON REVIEW.  BUT WHEN MEN ARE GIVEN
SHORT SHRIFT IN BEING PUNISHED, ABSTRACT RULES CANNOT DISPENSE WITH THE
DUTY OF THE REVIEWING COURT IMAGINATIVELY TO RE-CREATE THE COURTROOM
DRAMA.  IN ORDER TO SAVE TRIAL COURTS FROM BEING UNDULY HAMPERED, IT IS
NOT NECESSARY TO LEAVE THEM WITH ARBITRARY POWER BY RELYING ON THE
PRESUMPTION OF JUDICIAL PROPRIETY TO THE EXCLUSION OF A SOPHISTICATED,
EVEN IF INDULGENT, SCRUTINY OF THE RECORD. 

IF WE ARE TO UNDERSTAND THE CIRCUMSTANCES IN WHICH THE SENTENCES
UNDER REVIEW WERE IMPOSED, A CLOSE STUDY OF THE RECORD IN THE DENNIS
CASE CANNOT BE AVOIDED.  THE CERTIFICATE OF CONTEMPT INCORPORATED THE
WHOLE RECORD OF THAT CASE AND MADE ITS FINDINGS ON THE BASIS OF IT.  WE
CANNOT DO LESS IN PASSING ON THE PROPRIETY OF THE SUMMARY CONVICTIONS. 
WE CANNOT DO LESS IF WE ARE TO APPRAISE FAIRLY THE POWER ASSUMED BY THE
TRIAL COURT OF PUNISHING WITHOUT FURTHER ADO AT THE END OF THE TRIAL
CONDUCT THAT TOOK PLACE DURING ITS LONG TRAVAIL.  THIS DOES NOT IMPLY
REVIEWING WHETHER THE CONDUCT OF THESE PETITIONERS WAS CONTEMPTUOUS. 
THE WHOLE RECORD IS INDISPENSABLY RELEVANT TO THE PROCEDURAL QUESTION
WHICH WE BROUGHT HERE:  HOW WAS SUCH MISCONDUCT TO BE PUNISHED? 

DEEPLY AS I BELIEVE IN THE IMPORTANCE OF GIVING WIDE AND NOT
NIGGARDLY SCOPE TO THE DISCRETIONARY POWERS OF TRIAL JUDGES AND WITH A
LIFELONG REGARD FOR THE WISDOM OF THE JUDGE WHO, ON BEHALF OF THE COURT
OF APPEALS, FOUND THAT THE DISCRETION OF THE TRIAL JUDGE WAS NOT
ABUSED, I CANNOT ESCAPE THE CONVICTION THAT ANOTHER DISTRICT JUDGE
SHOULD HAVE TRIED THE CONTEMPT ISSUE.  AND THIS, THOUGH ONE MAY WELL
ASSUME THAT ANY OTHER JUDGE WOULD HAVE BEEN COMPELLED TO FIND CONTEMPT
IN THIS CASE AND MIGHT HAVE IMPOSED EVEN SEVERER SENTENCES.  PRESERVING
AND ENHANCING RESPECT FOR LAW IS ALWAYS MORE IMPORTANT THAN SUSTAINING
THE INFLICTION OF PUNISHMENT IN A PARTICULAR CASE. 

A READING OF THE FIFTEEN VOLUMES OF TESTIMONY IN THE DENNIS RECORD
LEAVES ONE WITH THE STRONG FEELING THAT THE CONDUCT FOUND CONTEMPTUOUS
WAS IN THE MAIN DIRECTED AGAINST THE TRIAL JUDGE PERSONALLY AND THAT
THE JUDGE HIMSELF SO REGARDED IT.  IN THE PREAMBLE OF HIS CONTEMPT
CERTIFICATE HE STATES THAT ONE OF THE PURPOSES OF THE NEFARIOUS
AGREEMENT WITH WHICH HE CHARGED THE LAWYERS WAS "IMPAIRING MY HEALTH SO
THAT THE TRIAL COULD NOT CONTINUE."  THE GREAT MAJORITY OF THE SPECIFIC
ACTS TO "EFFECT THIS PLAN" HAD THE JUDGE PERSONALLY AS THEIR TARGET. 
THE PETITIONERS, SO THE JUDGE FOUND IN SPECIFICATION I: 

"B.  SUGGESTED THAT VARIOUS FINDINGS BY THE COURT WERE MADE FOR THE
PURPOSE OF NEWSPAPER HEADLINES: 

"C.  INSINUATED THAT THERE WAS CONNIVANCE BETWEEN THE COURT AND THE
UNITED STATES ATTORNEY: 

     *         *         *         *         * 

"E.  PERSISTED IN MAKING LONG, REPETITIOUS, AND UNSUBSTANTIAL
ARGUMENTS, OBJECTIONS, AND PROTESTS, WORKING IN SHIFTS, ACCOMPANIED BY
SHOUTING, SNEERING, AND SNICKERING: 

"F.  URGED ONE ANOTHER ON TO BADGER THE COURT: 

"G.  REPEATEDLY MADE CHARGES AGAINST THE COURT OF BIAS, PREJUDICE,
CORRUPTION, AND PARTIALITY: 

"H.  MADE A SUCCESSION OF DISRESPECTFUL, INSOLENT, AND SARCASTIC
COMMENTS AND REMARKS TO THE COURT: 

     *         *        *         *         * 

"K.  PERSISTED IN ASKING QUESTIONS ON EXCLUDED SUBJECT MATTERS,
KNOWING THAT OBJECTIONS WOULD BE SUSTAINED, TO ENDEAVOR TO CREATE A
FALSE PICTURE OF BIAS AND PARTIALITY ON THE PART OF THE COURT: 

"L.  ACCUSED THE COURT OF RACIAL PREJUDICE WITHOUT ANY FOUNDATION;
AND: 

"M.  GENERALLY CONDUCTED THEMSELVES IN A MOST PROVOCATIVE MANNER IN
AN ENDEAVOR TO CALL FORTH SOME INTEMPERATE OR UNDIGNIFIED RESPONSE FROM
THE COURT WHICH COULD THEN BE RELIED UPON AS A DEMONSTRATION OF THE
COURT'S UNFITNESS TO PRESIDE OVER THE TRIAL." 

THE CONVICTION ON SPECIFICATIONS I WAS, AS ALREADY INDICATED,
REVERSED BY THE COURT OF APPEALS.  BUT ITS THEME UNDERLIES THE WHOLE
CERTIFICATE.  IT CONVEYS INESCAPABLY WHAT THE JUDGE DEEMED TO HAVE BEEN
THE PERMEATING SIGNIFICANCE OF THE BEHAVIOR OF THESE LAWYERS.  THE
"OVERT ACTS" LISTED IN SPECIFICATION I ARE BUT A COMPENDIUM OF THE
OTHER SPECIFICATIONS.  AT LEAST TWENTY-NINE OF THESE DESCRIBE CONDUCT
DIRECTED AGAINST THE TRIAL JUDGE PERSONALLY:  CHARGES OF PREJUDICE AND
RACIAL BIAS, OF COLLUSION WITH THE PROSECUTION, OF HEADLINE-SEEKING. 

NOT ONLY WERE THE CONTEMPTS DIRECTED AGAINST THE TRIAL JUDGE.  THE
CONDUCT OF THE LAWYERS HAD ITS REFLEX IN THE JUDGE.  AT FREQUENT
INTERVALS IN THE COURSE OF THE TRIAL HIS COMMENTS PLAINLY REVEAL
PERSONAL FEELING AGAINST THE LAWYERS, HOWEVER MUCH THE COURSE OF THE
TRIAL MAY HAVE JUSTIFIED SUCH FEELING.  ON NUMEROUS OCCASIONS HE
EXPRESSED HIS BELIEF THAT THE LAWYERS WERE TRYING TO WEAR HIM DOWN, TO
INJURE HIS HEALTH, TO PROVOKE HIM INTO DOING SOMETHING THAT WOULD SHOW
PREJUDICE, OR CAUSE A MISTRIAL OR REVERSAL ON APPEAL. 

THE CERTIFICATE OF THE TRIAL JUDGE QUOTES EXCERPTS OF THE RECORD FROM
THE PRINCIPAL CASE.  BUT THESE EXCERPTS ARE TOO BRIEF FOR A PICTURE
THAT EVEN REMOTELY REVEALS THE COURSE OF THE TRIAL.  THE SPECIFIED
CONTEMPTS CANNOT PROPERLY BE APPRAISED WITH A VIEW TO DETERMINING THE
PROCEDURE APPROPRIATE FOR DEALING WITH THEM, UNLESS THEY ARE GIVEN A
MUCH MORE BALANCED PERSPECTIVE THAN CAN BE GOT FROM THE CERTIFICATE OF
CONTEMPT.  IN ORDER TO PUT THE SPECIFIED CONTEMPTS IN THEIR TRIAL
SETTING, AN APPENDIX TO THIS OPINION SUPPLEMENTS THE MEAGER EXCERPTS IN
THE CERTIFICATE.  THE ONLY ADEQUATE WAY TO DOCUMENT THIS CASE WOULD BE
TO MAKE THE WHOLE DENNIS RECORD PART OF THIS OPINION, AS DID THE TRIAL
JUDGE BY REFERENCE IN HIS CERTIFICATE.  BUT EVEN WITHIN THE LIMITS OF
SPACE IMPOSED BY AN APPENDIX IT IS INDUBITABLY ESTABLISHED THAT THE
JUDGE FELT DEEPLY INVOLVED PERSONALLY IN THE CONDUCT FOR WHICH HE
PUNISHED THE DEFENSE LAWYERS.  HE WAS NOT MERELY A WITNESS TO AN
OCCURRENCE, AS WOULD BE A JUDGE WHO OBSERVED A FIST FIGHT IN HIS
COURTROOM OR BRUTAL BADGERING OF A WITNESS OR AN IMPROPRIETY TOWARDS
THE JURY.  THE JUDGE ACTED AS THE PROSECUTING WITNESS; HE THOUGHT OF
HIMSELF AS SUCH.  HIS SELF-CONCERN PERVADES THE RECORD; IT COULD NOT
HUMANLY HAVE BEEN EXCLUDED FROM HIS JUDGMENT OF CONTEMPT.   JUDGES ARE
HUMAN, AND IT IS NOT SUGGESTED THAT ANY OTHER JUDGE COULD HAVE BEEN
IMPERVIOUS TO THE ABUSE HAD HE BEEN SUBJECTED TO IT.  BUT PRECISELY
BECAUSE A JUDGE IS HUMAN, AND IN COMMON FRAILTY OR MANLINESS WOULD
INTERPRET SUCH CONDUCT OF LAWYERS AS AN ATTACK ON HIMSELF PERSONALLY,
HE SHOULD NOT SUBSEQUENTLY SIT IN JUDGMENT ON HIS ASSAILANTS, BARRING
ONLY INSTANCES WHERE SUCH EXTRAORDINARY PROCEDURE IS COMPELLINGLY
NECESSARY IN ORDER THAT THE TRIAL MAY PROCEED AND NOT BE ABORTED. 
(FN2) 

SUMMARY PUNISHMENT OF CONTEMPT IS CONCEDEDLY AN EXCEPTION TO THE
REQUIREMENTS OF DUE PROCESS.  NECESSITY DICTATES THE DEPARTURE. 
NECESSITY MUST BOUND ITS LIMITS.  IN THIS CASE THE COURSE OF EVENTS TO
THE VERY END OF THE TRIAL SHOWS THAT SUMMARY MEASURES WERE NOT
NECESSARY TO ENABLE THE TRIAL TO GO ON.  DEPARTURE FROM ESTABLISHED
JUDICIAL PRACTICE, WHICH MAKES IT UNFITTING FOR A JUDGE WHO IS
PERSONALLY INVOLVED TO SIT IN HIS OWN CASE, WAS THEREFORE UNWARRANTED. 
NEITHER SELF-RESPECT NOR THE GOOD NAME OF THE LAW REQUIRED IT.  QUITE
OTHERWISE.  DESPITE THE MANY INCIDENTS OF CONTEMPT THAT WERE CHARGED,
THE TRIAL WENT TO COMPLETION, NINE MONTHS AFTER THE FIRST INCIDENT,
WITHOUT A SINGLE OCCASION MAKING IT NECESSARY TO LAY ANY ONE OF THE
LAWYERS BY THE HEEL IN ORDER TO ASSURE THAT THE TRIAL PROCEED.  THE
TRIAL JUDGE WAS ABLE TO KEEP ORDER AND TO CONTINUE THE COURT'S BUSINESS
BY OCCASIONAL BRIEF RECESSES CALCULATED TO COOL PASSIONS AND RESTORE
DECORUM, BY PERIODIC WARNINGS TO DEFENSE LAWYERS, AND BY SHUTTING OFF
OBSTRUCTIVE ARGUMENTS WHENEVER RULINGS WERE CONCISELY STATED AND FIRMLY
HELD TO. 

THIS, THEN, WAS NOT A SITUATION IN WHICH, EVEN THOUGH A JUDGE WAS
PERSONALLY INVOLVED AS THE TARGET OF THE CONTEMPTUOUS CONDUCT,
PEREMPTORY ACTION AGAINST CONTEMNORS WAS NECESSARY TO MAINTAIN ORDER
AND TO SALVAGE THE PROCEEDINGS.  WHERE SUCH ACTION IS NECESSARY FOR THE
DECOROUS CONTINUANCE OF A PENDING TRIAL, DISPOSITION BY ANOTHER JUDGE
OF A CHARGE OF CONTEMPT IS IMPRACTICABLE.  INTERRUPTION FOR A HEARING
BEFORE A SEPARATE JUDGE WOULD DISRUPT THE TRIAL AND THUS ACHIEVE THE
ILLICIT PURPOSE OF A CONTEMNOR. 

BUT THE ADMINISTRATION OF JUSTICE AND COURTS AS ITS INSTRUMENTS ARE
VINDICATED, AND LAWYERS WHO MIGHT BE TEMPTED TO TRY SIMILAR TACTICS ARE
AMPLY DETERRED, BY THE ASSURANCE THAT PUNISHMENT WILL BE CERTAIN AND
SEVERE REGARDLESS OF THE TRIBUNAL THAT IMPOSES IT.  IT IS A DISSERVICE
TO THE LAW TO SANCTION THE IMPOSITION OF PUNISHMENT BY A JUDGE
PERSONALLY INVOLVED AND THEREFORE NOT UNREASONABLY TO BE DEEMED TO BE
SEEKING RETRIBUTION, HOWEVER UNCONSCIOUSLY, AT A TIME WHEN A HEARING
BEFORE A JUDGE UNDISTURBED BY ANY PERSONAL RELATION IS EQUALLY
CONVENIENT.  IT DOES NOT ENHANCE A BELIEF THAT PUNISHMENT IS A
VINDICATION OF IMPERSONAL LAW; IT DOES NOT FORTIFY THE DETERRENT
FUNCTION OF PUNISHMENT. 

HAD THE JUDGE HERE FOUND THE PETITIONERS GUILTY OF CONTEMPT DURING
THE ACTUAL COURSE OF THE TRIAL A DIFFERENT PROBLEM WOULD BE PRESENTED. 
EVEN THEN, HOWEVER, ONLY COMPELLING CIRCUMSTANCES WOULD JUSTIFY A
PEREMPTORY JUDGMENT OF CONTEMPT.  FOR WHILE "COURTS OF JUSTICE ARE
UNIVERSALLY ACKNOWLEDGED TO BE VESTED, BY THEIR VERY CREATION, WITH
POWER TO IMPOSE SILENCE, RESPECT, AND DECORUM, IN THEIR PRESENCE," THE
POWER THAT MAY THUS BE EXERCISED IS "THE LEAST POSSIBLE POWER ADEQUATE
TO THE END PROPOSED."  ANDERSON V. DUNN, 6 WHEAT.  204, 227, 231. 
RESORT BY A JUDGE TO CRIMINAL SANCTIONS WITHOUT THE USUAL SAFEGUARDS IN
IMPOSING PUNISHMENT IS TO BE SUPPORTED ONLY IF THE MORAL AUTHORITY OF A
TRIAL JUDGE CANNOT COMMAND ORDER AND RESPECT, ONLY IF A FIRM REPRIMAND
CALCULATED TO SECURE OBEDIENCE WOULD NOT HALT AN INCIPIENT COURT OF
MISCONDUCT. 

CRIMINAL JUSTICE IS CONCERNED WITH THE PATHOLOGY OF THE BODY
POLITIC.  IN ADMINISTERING THE CRIMINAL LAW, JUDGES WIELD THE MOST
AWESOME SURGICAL INSTRUMENTS OF SOCIETY.  A CRIMINAL TRIAL, IT HAS BEEN
WELL SAID, SHOULD HAVE THE ATMOSPHERE OF THE OPERATING ROOM.  THE
PRESIDING JUDGE DETERMINES THE ATMOSPHERE.  HE IS NOT AN UMPIRE WHO
ENFORCES THE RULES OF A GAME, OR MERELY A MODERATOR BETWEEN
CONTESTANTS.  IF HE IS ADEQUATE TO HIS FUNCTIONS, THE MORAL AUTHORITY
WHICH HE RADIATES WILL IMPOSE THE INDISPENSABLE STANDARDS OF DIGNITY
AND AUSTERITY UPON ALL THOSE WHO PARTICIPATE IN A CRIMINAL TRIAL. 

TRUTH COMPELS THE OBSERVATION, PAINFUL AS IT IS TO MAKE IT, THAT THE
FIFTEEN VOLUMES OF ORAL TESTIMONY IN THE PRINCIPAL TRIAL RECORD
NUMEROUS EPISODES INVOLVING THE JUDGE AND DEFENSE COUNSEL THAT ARE MORE
SUGGESTIVE OF AN UNDISCIPLINED DEBATING SOCIETY THAN OF THE HUSH AND
SOLEMNITY OF A COURT OF JUSTICE.  TOO OFTEN COUNSEL WERE ENCOURAGED TO
VIE WITH THE COURT IN DIALECTIC, IN REPARTEE AND BANTER, IN TALK SO
COPIOUS AS INEVITABLY TO ARREST THE MOMENTUM OF THE TRIAL AND TO WEAKEN
THE RESTRAINTS OF RESPECT THAT A JUDGE SHOULD ENGENDER IN LAWYERS. 
COUNSEL WERE NOT MADE TO UNDERSTAND THAT IN A CRIMINAL CASE NOT MERELY
THE LIBERTY OF INDIVIDUALS IS AT STAKE.  LAW ITSELF IS ON TRIAL AS THE
"STERN DAUGHTER OF THE VOICE OF GOD."  THROUGHOUT THE PROCEEDINGS, EVEN
AFTER THE TRIAL JUDGE HAD INDICATED THAT HE THOUGHT DEFENSE COUNSEL
WERE IN CONSPIRACY AGAINST HIM AND WERE SEEKING THEREBY TO SUBVERT THE
TRIAL, HE FAILED TO EXERCISE THE MORAL AUTHORITY OF A COURT POSSESSED
OF A GREAT TRADITION.  HE INDULGED THEM, SOMETIMES RESIGNEDLY,
SOMETIMES PLAYFULLY, IN LENGTHY SPEECHES.  THESE INCONTINENT WRANGLES
BETWEEN COURT AND COUNSEL WERE PUNCTUATED BY OCCASIONAL MINATORY
INTIMATIONS FROM THE BENCH.  AS IN THE CASE OF PARENTAL WARNINGS TO
CHILDREN, FECKLESS REPETITION DEPRIVED THEM OF AUTHORITY. 

TO CALL COUNSEL OFFICERS OF THE COURT IS NO IDLE PHRASE.  OUR WHOLE
CONCEPTION OF JUSTICE ACCORDING TO LAW, ESPECIALLY CRIMINAL JUSTICE,
IMPLIES AN EDUCATED, RESPONSIBLE, AND INDEPENDENT BAR.  COUNSEL ARE NOT
FREED FROM RESPONSIBILITY FOR CONDUCT APPROPRIATE TO THEIR FUNCTIONS NO
MATTER WHAT THE ENCOURAGEMENTS AND PROVOCATIONS.  PETITIONERS MUST BE
HELD TO STRICT ACCOUNTABILITY FOR THE CONTEMPTS THEY COMMITTED.  BUT
UNTIL THE INHERENT AUTHORITY THAT SHOULD RADIATE FROM THE BENCH IS
FOUND INEFFECTIVE IN SECURING SEEMLY CONDUCT BY COUNSEL, THERE IS NO
NEED FOR DRASTIC PEREMPTORY PROCEDURE IN BRINGING CONTEMNORS TO BOOK
EVEN DURING A TRIAL.  HISTORY RECORDS TOO MANY ABUSES TO LOOK
INDULGENTLY UPON THE EXERCISE OF SUCH ARBITRARY POWER.  AND WHEN THE
TRIAL IN FACT GOES TO COMPLETION, AS HERE, WITHOUT INVOKING SUMMARY
CONVICTIONS, THAT IN ITSELF PROVES THAT THERE WAS NO OCCASION FOR
DEPARTURE FROM THE HISTORIC METHOD OF TRYING CRIMINAL CHARGES, THAT IS,
AFTER NOTICE AND AN OPPORTUNITY FOR DEFENSE BEFORE A DISINTERESTED
JUDGE. 

IT ONLY REMAINS TO POINT OUT THE DIFFERENCES BETWEEN THIS CASE AND
TWO OTHER CASES NOW BEFORE THIS COURT ON PETITIONS FOR CERTIORARI.  (AS
TO THE DESIRABLE DISPOSITION OF THESE PETITIONS NO VIEW IS INTENDED TO
BE INDICATED.)  IN HALLINAN V. UNITED STATES, 182 F.2D 880, AND
MACINNIS V. UNITED STATES, 191 F.2D 157, THE COURT OF APPEALS FOR THE
NINTH CIRCUIT AFFIRMED CONVICTIONS FOR CONTEMPT COMMITTED BY TWO
LAWYERS IN A TRIAL IN THE NORTHERN DISTRICT OF CALIFORNIA WHICH LASTED
SOME TWENTY WEEKS, FROM NOVEMBER 14, 1949, TO APRIL 4, 1950.  THE
CONTEMPT CHARGE IN THE HALLINAN CASE WAS FOR CONDUCT WHICH OCCURRED
DURING THURSDAY, FRIDAY AND MONDAY OF THE FIRST TWO WEEKS OF THE LONG
TRIAL AND CONSISTED IN DISOBEDIENCE OF THE COURT'S ORDER TO LIMIT THE
OPENING STATEMENT AND THE CROSS-EXAMINATION OF A GOVERNMENT WITNESS. 
THE COMPLAINED-OF CONDUCT DID NOT AT ALL BRING THE JUDGE PERSONALLY
INTO THE CONTROVERSY.  ON TUESDAY MORNING AFTER THE TIME NECESSARY FOR
PREPARATION OF THE CONTEMPT CERTIFICATE THE JUDGE FOUND HALLINAN IN
CONTEMPT AND SENTENCED HIM TO SIX MONTHS' IMPRISONMENT.  ON THE FACE OF
THE RECORD IT WOULD REQUIRE EVEN MORE THAN THE BOLDNESS OF HINDSIGHT TO
SAY THAT THE TRIAL JUDGE COULD NOT HAVE REASONABLY BELIEVED THAT
IMMEDIATE VINDICATION OF THE DISOBEDIENCE OF THE COURT'S ORDER WAS
NECESSARY TO SECURE RESPECT FOR HIS AUTHORITY DURING THE REMAINDER OF
THE TRIAL. 

LATER, ON FEBRUARY 1, 1950, TH OTHER DEFENSE ATTORNEY - MACINNIS -
THUS ADDRESSED THE COURT AFTER ONE OF ITS RULINGS:  "I THINK YOU SHOULD
CITE YOURSELF FOR MISCONDUCT  ...  .  I HAVE NEVER HEARD ANYTHING LIKE
THAT.  YOU OUGHT TO BE ASHAMED OF YOURSELF."  SOON AFTER THIS REMARK
THE COURT RECESSED UNTIL THE NEXT DAY.  AFTER OVERNIGHT CONSIDERATION,
THE JUDGE INFORMED THE LAWYER THAT HIS REMARK CONSTITUTED CONTEMPT AND
THAT A CERTIFICATE OF CONTEMPT IN ACCORDANCE WITH RULE 42 WOULD BE
FILED.  HERE AGAIN, THE JUDGE TOOK PROMPT ACTION IN ORDER AS HE
CONCLUDED, TO ASSURE THE ORDERLY CONTINUANCE OF A TRIAL WHICH STILL HAD
MANY WEEKS TO GO. 

THE HALLINAN AND MACINNIS CASES DISPROVE THE GOVERNMENT'S CLAIM THAT
PROMPT CITATION FOR CONTEMPT, IF THE CIRCUMSTANCES WARRANTED IT, WOULD
HAVE CAUSED DELAY AND DISRUPTION IN THE NEW YORK TRIAL.  IN THE
CALIFORNIA CASE HALLINAN REMAINED AS DEFENSE COUNSEL BY VIRTUE OF A
STAY IN THE EXECUTION OF HIS SENTENCE; AND MACINNIS, BY A POSTPONEMENT
OF HIS SENTENCE UNTIL AFTER THE VERDICT IN THE PRINCIPAL CASE. 
MACINNIS EVIDENTLY ABSTAINED FROM FURTHER MISCONDUCT IN THE PRINCIPAL
TRIAL BECAUSE OF THE CERTAINTY OF PUNISHMENT, THOUGH HE DID NOT KNOW
ITS MAGNITUDE.  EITHER DEVICE WAS AVAILABLE TO THE TRIAL JUDGE IN NEW
YORK HAD HE FELT THAT ONLY BY A PROMPT JUDGMENT OF CONTEMPT COULD HE
KEEP CONTROL OF THE PROCEEDINGS.  IN FACT HE DID KEEP ORDER BY MEASURES
SHORT OF THOSE USED IN THE CALIFORNIA CASE.  AT THE END OF THE TRIAL
THE ONLY QUESTION WAS WHETHER HE OR ANOTHER JUDGE, NOT PERSONALLY
INVOLVED, SHOULD PASS ON ISSUES OF CONTEMPT THAT HAD ARISEN DURING A
TRIAL THAT HAD ENDED, AND IMPOSE PUNISHMENT IF GUILT WAS FOUND. 

IT IS SUGGESTED, HOWEVER, THAT A JUDGE SHOULD BE ALLOWED TO PUNISH
CONTEMPT PEREMPTORILY, AS DID THE JUDGE HERE, LONG AFTER THE CONTEMPT
OCCURS.  OTHERWISE HE MIGHT BE IMPELLED, SO IT IS SURPRISINGLY ARGUED,
TO ACT ON THE INFLAMED IMPULSE OF THE MOMENT FOR FEAR OF LOSING THE
OPPORTUNITY TO PUNISH THE OFFENDER HIMSELF.  THE HALLINAN AND MACINNIS
CASES SUGGEST THE ANSWER:  POWER TO CITE FOR CONTEMPT SUMMARILY IS NOT
LOST BY TAKING A REASONABLE, BRIEF TIME FOR JUDICIOUS CONSIDERATION
WHETHER SUCH DRASTIC ACTION IS NECESSARY IN A PENDING TRIAL.  MOREOVER,
THE GUIDES TO RIGHT CONDUCT WHICH MR. CHIEF JUSTICE TAFT LAID DOWN IN
THE COOKE CASE, AND ON WHICH I RELY, REST ON THE ASSUMPTION THAT
FEDERAL JUDGES ARE NOT UNDISCIPLINED CREATURES WHOSE FEELINGS ARE THEIR
MASTERS.  PRESUMABLY THEY ARE RESPONSIBLE BEINGS WITH COOL HEADS.  IN
ANY EVENT, THIS COURT SITS TO CORRECT A RARE OCCURRENCE OF
IRRESPONSIBLE ACTION.  FINALLY, THE GOVERNMENT URGES THAT A HEARING
BEFORE A DIFFERENT JUDGE WOULD GIVE PETITIONERS ANOTHER OPPORTUNITY FOR
HARASSING TACTICS, AND THAT TO SUBJECT THE TRIAL JUDGE TO CROSS
EXAMINATION AND REFUTATION BY WITNESSES DRAWN FROM COURT-ROOM
SPECTATORS WOULD EMBROIL THE FEDERAL JUDICIARY IN DAMAGING
CONTROVERSY.  ONCE MORE THE GOVERNMENT DEPRECIATES THE STATUS OF
FEDERAL JUDGES.  IT DEROGATES FROM THE HIGH CONCEPTION WHICH ONE SHOULD
HAVE OF THEM NOT TO ATTRIBUTE TO THE JUDGE WHO WOULD PRESIDE IN THE
CONTEMPT HEARING THOSE CAPABILITIES BY WHICH FEDERAL JUDGES, ESPECIALLY
IN NON-JURY CASES, CONDUCT PROCEEDINGS IN AN EFFECTIVE, EXPEDITIOUS AND
DIGNIFIED MANNER, WITH APPROPRIATE CONTROL OVER THE SCOPE OF CROSS
EXAMINATION AND THE OFFER OF WITNESSES. 

PUBLIC RESPECT FOR THE FEDERAL JUDICIARY IS BEST ENHANCED BY EXACTING
HIGH STANDARDS OF JUDICIAL COMPETENCE IN THE CONDUCT OF PROCEEDINGS AND
BY DISCOURAGING AN ASSERTION OF POWER WHICH IS NOT RESTRICTED BY THE
USUAL DEMANDS OF DUE PROCESS AND WHICH TOO OFTEN MANIFESTS A FAILURE OF
MORAL MASTERY. 

FN1  SEE NOTES OF ADVISORY COMMITTEE ON RULE 42(A), FEDERAL RULES OF
CRIMINAL PROCEDURE. 

FN2 EX PARTE TERRY, 128 U.S. 289, PRESENTED A TOTALLY DIFFERENT
SITUATION AND LENDS NO SUPPORT WHATEVER TO THE ACTION OF THE TRIAL
COURT IN THIS CASE.  AS WAS STATED IN THE ORDER OF COMMITMENT: "DAVID
S. TERRY WAS GUILTY OF A CONTEMPT OF THIS COURT BY MISBEHAVIOR IN ITS
PRESENCE AND BY A FORCIBLE RESISTANCE IN THE PRESENCE OF THE COURT TO A
LAWFUL ORDER THEREOF  ...  ."  ID., AT 298.  THIS BRIEFLY INDICATES THE
DIFFERENTIATING CIRCUMSTANCES BETWEEN THE TERRY CASE AND THIS CASE. 
WHILE THE UNITED STATES CIRCUIT COURT WAS SITTING AND ONE MEMBER WAS
DELIVERING ITS OPINION IN A PENDING CASE, MRS. TERRY INTERRUPTED THE
READING BY A VIOLENT OUTBURST.  WHEN THE UNITED STATES MARSHAL WAS
ORDERED BY THE COURT TO REMOVE HER FROM THE COURTROOM, HER HUSBAND, MR.
TERRY, INTERVENED TO ASSAULT THE MARSHAL.  UPON THE CONCLUSION OF THE
READING OF THE OPINION, FOLLOWING THIS INTERRUPTION, THE COURT HAVING
DULY DELIBERATED, FOUND BOTH MR. AND MRS. TERRY GUILTY OF CONTEMPT AND
SENTENCED THEM FOR IT.  PLAINLY ENOUGH TERRY'S CONTEMPT DID NOT TOUCH
THE JUDGES PERSONALLY, NOR IMPLICATE THEIR ATTITUDE TOWARD COUNSEL.  IT
INVOLVED SIMPLE PHYSICAL ACTIONS IN FULL VIEW OF THE THREE JUDGES.  THE
JUDGMENT OF CONTEMPT AND SENTENCING FOLLOWED PROMPTLY UPON EVENTS THAT
CONSTITUTED A SINGLE BRAWL INTERRUPTING THE ACTUAL ADMINISTRATION OF
JUSTICE.  SEE IN RE TERRY, 36 F. 419; SWISHER, STEPHEN J. FIELD -
CRAFTSMAN OF THE LAW, 321-341. 

APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER.  (FN1) 

EXCERPTS FROM THE RECORD OF THE PRINCIPAL CASE, DENNIS V. UNITED
STATES. 

THE COURT:  WELL, IF YOU THINK I AM GOING TO CONDUCT AN INQUIRY AS TO
THE REASONS WHY EVERYBODY IS IN EACH ONE OF THE SEATS HERE YOU ARE
MAKING A BIG MISTAKE, BECAUSE I AM NOT GOING TO DO THAT.  THERE ARE
LOTS OF PEOPLE HERE WHO CAME FOR REASONS THAT ARE SUFFICIENT FOR
THEMSELVES. 

MR. GLADSTEIN:  I UNDERSTAND, BUT YOUR HONOR WILL CERTAINLY PERMIT ME
TO CALL YOUR HONOR'S ATTENTION AT LEAST TO THE FACTS THAT I WANT TO
COMPLAIN ABOUT, EVEN THOUGH I AM TOLD THAT YOUR HONOR IS NOT GOING TO
DO ANYTHING ABOUT IT.  AND YOU WILL PERMIT ME, WILL YOU NOT, YOUR HONOR
...  . 

THE COURT:  YOU KNOW, MR. GLADSTEIN, I DON'T LIKE THAT CRACK.  I
DON'T KNOW WHO TOLD YOU THAT I AM NOT GOING TO DO ANYTHING ABOUT THIS
OR THAT.  (PP. 72-73; JAN. 17, 1949.) 

     * *         *         *         * 

MR. GLADSTEIN:  I THINK MR. SACHER WAS REFERRING TO THE QUESTION OF
THE HOURS THAT YOU WANT TO SIT TODAY, THE TIME.  THAT IS WHY HE ASKED. 
I WAS GETTING A LITTLE HUNGRY MYSELF.  AND YOU LOOK A LITTLE PEAKED I
THINK. 

THE COURT:  IF I FELT ANY STRONGER THAN I DO RIGHT NOW I WOULD BE
SICK.  SO DON'T WORRY ABOUT MY LOOKING PEAKED, I FEEL ALL RIGHT.  (P.
88.) 

     *         *         *         *         * 

MR. GLADSTEIN:  ...  STANDING BEHIND ME HERE ARE TWO MEN WHO ARE
ATTACHES OF THIS COURT, THEY ARE BAILIFFS. 

THE COURT:  BUT THEY ARE ALWAYS THERE, AT EVERY CRIMINAL TRIAL. 

MR. GLADSTEIN:  YOUR HONOR, YOU HAVEN'T HEARD ME YET.  I HAVE NO
OBJECTION, PRECISELY. 

THE COURT:  IF I SEEM IMPATIENT TO YOU I AM SURE IT IS A VERY
MISLEADING IMPRESSION. 

MR. GLADSTEIN:  I WILL ACCEPT THAT, YOUR HONOR, WITH WHAT I THINK YOU
INTENDED TO CONVEY.  (PP. 146-147.) 

     *         *        *         *         * 

THE COURT:  ...  I THINK YOU HAVE SQUEEZED ALL THE JUICE OUT OF THAT
PARTICULAR ORANGE. 

NOW, WHY DON'T YOU GET ON TO THE MERITS OF YOUR CLAIM THAT THE JUDGES
HERE SHOULD NOT TRY THIS ISSUE. 

MR. GLADSTEIN:  IF YOU WOULD PERMIT ME, YOUR HONOR, TO CARRY FORWARD
A LITTLE BIT THE ALLUSION THAT YOU HAVE JUST MADE, WHICH HAPPENS TO BE
CLOSELY IDENTIFIED WITH THE STATE FROM WHICH I COME, FROM WHICH THE
CITRUS FRUITS ARE A PRODUCT  ...  . 

THE COURT:  NO CALIFORNIAN EVER MISSES THE CHANCE.  (PP. 207-208.) 

     * *         *         *         * 

THE COURT:  IF YOU MEAN THAT AS APPLICABLE TO ME, I SAY I DON'T KNOW
ANYTHING ABOUT IT.  I DON'T. I HAVEN'T THE REMOTEST IDEA HOW THESE
JURIES ARE GOT TOGETHER.  I HAVE ONLY BEEN ON THE BENCH HERE AS YOU
KNOW A SHORT TIME. 

MR. GLADSTEIN:  HOW LONG HAS IT BEEN, YOUR HONOR? 

THE COURT:  WELL, JULY 1ST, 1947, WAS THE GREAT DAY, AS I REMEMBER
IT. 

MR. GLADSTEIN:  WELL, THAT IS OVER A YEAR AND A HALF.  (P. 212.) 

     *         *         *         *     * 

MR. GLADSTEIN:  BUT WHAT HAPPENED ABOUT TEN YEARS AGO WAS THAT IT WAS
DECIDED TO THROW THAT SYSTEM INTO THE ASHCAN, SO TO SPEAK, AND TO
SUBSTITUTE FOR IT A SYSTEM WHICH IS THE OPPOSITE OF DEMONCRATIC, FAIR,
TRULY REPRESENTATIVE; AND THIS IS WHAT TOOK PLACE, AS OUR AFFIDAVITS
SHOW: INSTEAD - WELL, FIRST OF ALL  ...  . 

THE COURT:  NOW ALL THIS TIME I AM THINKING, WHERE IS THE BIAS? 
WHERE IS THE PREJUDICE?  WHAT KIND OF A JUDGE MUST YOU HAVE SPECIALLY? 
I AM THINKING ABOUT THAT, AND DOUBTLESS YOU HAVE GOT IT IN MIND. 

MR. GLADSTEIN:  I CERTAINLY HAVE, YOUR HONOR. 

THE COURT:  DON'T CREEP UP ON IT TOO SUDDENLY.  (PP. 238-239.) 

     *         *         * *         * 

MR. GLADSTEIN:  ...  YOU AS A PRACTICING ATTORNEY STOOD BEFORE THE
SUPREME COURT OF THE UNITED STATES AND SPOKE ABOUT THE NECESSITY OF
HAVING A DEMOCRATIC JURY SYSTEM IN THE STATE OF NEW YORK. 

THE COURT:  AND AS I UNDERSTAND IT THE FACT THAT I THEN FOUGHT FOR A
DEMOCRATIC JURY SYSTEM SHOWS NOW THAT MY MIND IS SO BIASED THAT I AM
NOT FIT TO SIT HERE AND HEAR YOUR CASE?  THAT SEEMS A LITTLE
INCONSISTENT TO ME. 

MR. GLADSTEIN:  IF YOUR HONOR PLEASE, PLEASE DON'T DISTORT THE
MEANING OF WHAT I SAY, BECAUSE WHAT I AM SAYING IS:  THE FACT THAT 18
MONTHS AGO OR THEREABOUTS YOUR HONOR STOOD BEFORE THE SUPREME COURT
DEMANDING THAT IT CONDEMN AN ILLEGAL, VICIOUS KIND OF JURY SYSTEM IN
THE STATE COURTS, PLUS THE FACT THAT FOR 18 MONTHS YOUR HONOR HAS SAT
ON THIS BENCH IN THE FEDERAL COURTS AND HAS SEEN IN OPERATION A SYSTEM
WHICH TO THE NAKED EYE REVEALS THE KIND OF DISCRIMINATION AND
EXCLUSIONS THAT HAVE BEEN TAKING PLACE AND YOUR HONOR HAS DONE NOTHING
ABOUT IT.  (P. 242.) 

 *         *         *         *         * 

THE COURT:  MR. DENNIS HAS A LITTLE SUGGESTION FOR YOU THERE THAT MR.
SACHER IS LOOKING AT.  I THINK HE MEANS TO GIVE IT TO YOU. 

MR. SACHER:  NO. THIS IS A PRIVATE COMMUNICATION.  THANK YOU. 

THE COURT:  I HAD NO IDEA OF DESIRING TO SEE IT, MR. SACHER. 

MR. SACHER:  OH, I UNDERSTAND THAT. 

THE COURT:  I THOUGHT HE INTENDED IT FOR MR. GLADSTEIN AND I
ATTEMPTED TO DO WHAT I THOUGHT WAS A COURTEOUS THING IN CALLING HIS
ATTENTION TO IT. 

NOW, PLEASE, DON'T TRY TO MISUNDERSTAND THINGS LIKE THAT.  YOU MAY
ASSUME THAT WHEN I SAY THINGS I SAY THEM IN GOOD FAITH.  I HAVE NO
DESIRE TO DO OTHERWISE, AND I THINK YOU GENTLEMEN WILL DO BETTER TO
RECOGNIZE THAT.    MR. SACHER:  I DON'T LIKE TO GET THE FEELING THAT
THE CLIENTS ARE UNDER THE SURVEILLANCE OF THE COURT. 

THE COURT:  WELL, ALL RIGHT.  I AM SORRY THAT YOU TAKE IT THAT WAY. 
(P. 244.) 

     *         *         *         *         * 

MR. GLADSTEIN:  THE KEY TO THE DIFFERENCE BETWEEN WHAT YOU HAVE JUST
SAID, YOUR HONOR, AND WHAT I AM CONTENDING IS A LITTLE MAGIC PHRASE
CONSISTING OF FOUR WORDS THAT YOU SLIPPED INTO YOUR LAST STATEMENT.  I
THINK IT WAS "REGARDLESS OF THE JUSTIFICATION"  ...  . 

THE COURT:  I DON'T THINK YOU OUGHT TO SAY "SLIPPED IN" NOW.  I
GATHER YOU MEANT THAT COLLOQUIAL EXPRESSION IN A NICE WAY. 

MR. GLADSTEIN:  OH YES.  EVERYTHING I SAY TO THE COURT IS ALWAYS
MEANT IN A NICE WAY, YOUR HONOR. 

THE COURT:  I KNOW.  (P. 247.) 

     *         *         *         *     * 

MR. SACHER:  ...  I HEARD YOUR HONOR SAY A FEW MINUTES AGO THAT THE
WITNESS DID NOT LOOK LIKE A BANKER. 

THE COURT:  NO, I SAID HE DID NOT LOOK LIKE A MECHANIC. 

MR. SACHER:  OH, I BEG YOUR PARDON.  ALL RIGHT. 

NOW, THE POINT I WANT TO GET AT IS THIS, THAT WHAT THE DECISIONS OF
THE SUPREME COURT ARE CONCERNED WITH ARE NOT THE APPEARANCES, FOR I
HAVE SEEN MANY WORKERS AND MECHANICS WHO LOOK A DARN SIGHT MORE
HANDSOME AND MORE PERSONABLE AND PLEASANT THAT A LOT OF FAT BANKERS. 

THE COURT:  WELL, WE WON'T GO INTO THE QUESTION OF HOW GOOD-LOOKING
EVERYBODY IS.  WE MIGHT NOT COME OUT SO WELL ON THAT. 

MR. SACHER:  THAT MAY BE.  (P. 383.) 

     *         *     *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION II (FN2) - PP. 384-385; JAN. 21,
1949.) 

     * *         *         *         * 

MR. SACHER:  WELL, I DON'T THINK YOU WOULD HAVE CALLED HIM IF YOU HAD
ANYTHING TO DO WITH THE TRIAL.  YOU WERE TOO GOOD A LAWYER TO DO ANY
SUCH THING. 

THE COURT:  WELL, IT IS QUITE FLATTERING TO HAVE YOU KEEP TALKING
ABOUT ME AS A LAWYER, AND I AM GLAD TO HEAR YOUR COMMENTS ON THE
SUBJECT AS LONG AS THEY ARE FAVORABLE.  AND IF NOT I WILL PRESERVE MY
EQUANIMITY IN ANY EVENT.  (P. 399.) 

     *         *         *         *         * 

THE COURT:  YOU CAN REOPEN THE MATTER OF CONSIDERATION WHEN I HEAR
FROM MR. ISSERMAN WHO DOUBTLESS IS ABOUT TO ADD SOMETHING OF IMPORTANCE
IN JUST A MOMENT. 

MR. ISSERMAN:  I OBJECT TO YOUR HONOR'S REMARK.  I THINK IT IS
SARCASTIC.  IT DOESN'T SHOW THE RESPECT THAT THIS COURT SHOULD SHOW TO
COUNSEL.  I OBJECT TO IT. 

THE COURT:  WELL, I INTENDED NO DISRESPECT TO COUNSEL.  I WILL LISTEN
TO WHAT YOU HAVE TO SAY. 

MR. ISSERMAN:  I ONCE MORE OBJECT TO YOUR HONOR'S RULING ON MATTERS
AFFECTING THE CLIENTS I REPRESENT IN THIS PROCEEDING BEFORE HEARING MY
POSITION IN RESPECT TO THOSE MATTERS.  (P. 404.) 

     *         *         *     *         * 

MR. MCCABE:  ...  JUST TAKE, FOR INSTANCE, AN EMPLOYEE OF THE MCGRAW
HILL COMPANY.  THE FACT THAT HE GOT A SALARY SOMEWHAT LESS THAN $5,000
I DO NOT THINK WOULD PUT HIM IN THE CLASS OF THOSE WHOSE ECONOMIC
OUTLOOK OR WHOSE ECONOMIC PHILOSOPHY WOULD BE AT VARIANCE WITH THAT
EXPRESSED BY THAT OF HIS EMPLOYER.  AT EMPLOYEE OF THE NATIONAL
ASSOCIATION OF MANUFACTURERS MIGHT VERY WELL BE DRAWING A SALARY WHICH
WOULD, UNDER THE ARBITRARY RULE WHICH WE ARE JUST TOYING WITH HERE - I
DON'T SAY WE ARE SETTING IT UP ARBITRARILY, BUT WE HAVE TRIED TO COME
AROUND  ...  . 

THE COURT:  YOU ARE CERTAINLY TOYING WITH IT ALL RIGHT. 

MR. MCCABE:  WELL, MAYBE IT WILL BE LIKE MY GRANDCHILD - WHEN SHE
TOYS WITH TOYS THERE ISN'T MUCH LEFT OF THE TOYS AFTER ABOUT TEN
MINUTES. 

THE COURT:  WELL, I SEEM TO BE SURVIVING ALL RIGHT.  (PP. 428-429.) 

     * *         *         *         * 

THE COURT:  ...  AFTER ALL THIS IS NOT THE TRIAL IN CHIEF.  THIS IS
THE PRELIMINARY CHALLENGE, AND THE SITUATION IS A LITTLE BIT
DIFFERENT.  I SUPPOSE I SHOULD TAKE IT UNDER ADVISEMENT.  I DO NOT WANT
TO ACT HASTILY ABOUT IT.  I MUST SAY THAT MY STUDY OF THIS RECORD IN
THIS INTERVAL HAS INDICATED TO ME, HAS FOR THE FIRST TIME PUT IN MY
MIND THE THOUGHT OF A SERIES OF CONCERTED AND DELIBERATE MOVES TO DELAY
THE CASE.  I AM EXCEEDINGLY RELUCTANT TO TAKE THE VIEW THAT ANY LAWYER
WOULD DO THAT, AND EVEN PRESS BY THIS OCCURRENCE THIS MORNING  ...  . 

MR. SACHER:  I WOULD LIKE TO DENY THAT WE HAVE EVER DONE IT OR THAT
WE ARE DOING IT NOW, YOUR HONOR. 

THE COURT:  I HAVE PUT THAT THOUGHT FROM MY MIND FOR THE PRESENT, BUT
I WILL SAY THAT IT IS A RATHER DIFFICULT SITUATION THAT HAS BEEN
BROUGHT UP HERE BY THE CONDUCT OF COUNSEL.  (P. 465.) 

     *         *         *         *         * 

MR. CROCKETT:  ...  I THINK THE COURT IS AWARE THAT MY ARGUMENTS ARE
USUALLY PRETTY SHORT AND TO THE POINT, THOUGH I MUST CONFESS THEY HAVE
NOT BEEN ANY TOO CONVINCING TO YOUR HONOR  ...  . 

THE COURT:  YES, MUCH BETTER THAN MR. SACHER AND MR. ISSERMAN WHO
HAVE BEEN - WELL, SHALL I SAY, PROLIX AND VOCIFEROUS AND REPETITIOUS,
BUT ALL IN GOOD TASTE, AND I HAVE LISTENED, ALTHOUGH I MUST SAY, AS I
SAID A FEW MOMENTS AGO, THAT THE THOUGHT HAS FINALLY ENTERED MY MIND
THAT ALL THIS BUSINESS THAT HAS BEEN GOING ON IS JUST A SERIES OF
WILFUL AND DELIBERATE MANEUVERS FOR DELAY. 

MR. SACHER:  I RESENT THAT AND I WANT TO DENY IT ONCE AGAIN.  (PP.
467-468.) 

     *         *         *     *         * 

MR. MCCABE:  YOUR HONOR TOLD US TO SAW WOOD THE OTHER DAY. 

THE COURT:  YES. 

MR. MCCABE:  AND IT SEEMS TO ME THAT THE SAWDUST IS GETTING IN
SOMEBODY'S EYE.  WE ARE SAWING WOOD A LITTLE BIT TOO RAPIDLY. 

THE COURT:  IF YOU MEAN BY THAT THAT YOU HAVE PERHAPS GOT ME IN AN
ILL HUMOR, YOU ARE ENTIRELY MISTAKEN, BECAUSE I FEEL VERY PLEASANT AND
GENIAL, AND I HAVE NO DESIRE OR NO THOUGHT OF FEELING DISTURBED AT ALL;
SO IF YOU MEANT BY YOUR COMMENT THAT MY ATTITUDE WAS PERHAPS CHANGED OR
DIFFERENT, I THINK YOU ARE MISTAKEN. 

MR. MCCABE:  I DID NOT INFER THAT AT ALL, YOUR HONOR. 

THE COURT:  WHAT DID YOU MEAN? 

MR. MCCABE:  WHAT I SAID, THAT THE SAWDUST WAS GETTING INTO
SOMEBODY'S EYES? 

THE COURT:  YES.  WHOSE EYES WERE YOU TALKING ABOUT? 

MR. MCCABE:  I SAY THE EYES OF ANYBODY WHO IS INTERESTED IN DEFENDING
A SYSTEM OF SELECTION OF JURORS WHICH IS AS WE CLAIM IT TO BE.  I WILL
SAY THIS, YOUR HONOR  ...  . 

THE COURT:  BUT YOU DID NOT MEAN MY EYES, I TAKE IT, DID YOU?  YOU
COULD EITHER SAY YES OR NO. NOW WHICH IS IT? 

MR. MCCABE:  WELL, WHEN SAWDUST STARTS FLYING AROUND I GUESS IT GETS
IN EVERYBODY'S EYES. 

THE COURT:  SO YOU DIDN'T MEAN ME? 

MR. MCCABE:  NO, I WILL SAY I DID NOT.  I WILL SAY THIS:  YOUR HONOR,
IF I WALKED INTO THIS COURTROOM AND TOLD YOU THAT THE LEGS OF THAT
CHAIR YOU ARE SITTING ON WERE CRACKED AND WERE ABOUT TO FALL, OR IF I
SAID THAT THIS WALL HAD A BIG CRACK IN IT, AND THAT THE WHOLE SYSTEM
LOOKED BAD  ... 

THE COURT:  IT WOULDN'T SCARE ME. 

MR. MCCABE (CONTINUING):  IF I SAID TO YOUR HONOR THAT PERHAPS THERE
WERE OTHER SERIOUS THINGS WRONG WITH THIS COURTROOM, JUST THE PHYSICAL
ASPECTS OF THE COURTROOM, I THINK THAT I AM NOT FAR OFF IN ASSUMING
THAT YOUR HONOR WOULD CAUSE THE FULLEST INVESTIGATION TO BE MADE TO SEE
THAT THE PHYSICAL SAFETY, NOT OF YOURSELF  ...  . 

THE COURT: THAT IS WHERE YOU ARE MAKING A BIG 100 PER CENT MISTAKE. 
IT WOULD ROLL OFF MY BACK LIKE WATER OFF A DUCK, AND I WOULD NOT EVEN
LOOK AT THE LEGS OF THE CHAIR.  (PP. 573-574.) 

     *        *         *         *         * 

MR. MCCABE:  THAT IS NOT REGULATING THE ORDER OF PROOF, YOUR HONOR,
WHEN JUST AS IT LOOKS, AS EVERYBODY REALIZES, THAT THE INITIAL PROOF
ABSOLUTELY SUPPORTS OUR ASSERTION THEN SUDDENLY WE ARE CUT OFF AND
SHUNTED ON TO SOME OTHER WAY; THAT OUR ORDERLY PROCEDURE AND
EXPEDITIOUS PROCEDURE IN PROVING OUR CASE IS SUDDENLY DISRUPTED BY YOUR
HONOR'S RULING.  I SAY IT CERTAINLY INDICATES SOME FEAR ON YOUR HONOR'S
PART. 

THE COURT:  WELL, I HAVE NO FEAR.  IF YOU HAVE ANY IMPRESSION THAT I
AM AFRAID YOU MAY PUT THAT OUT OF YOUR MIND ENTIRELY, BECAUSE I HAVE
NOT FELT ANY FEAR, AND I CAN ONLY REMEMBER ONCE IN MY LIFE THAT I WAS
AFRAID, AND I AM NOT ACCUSTOMED TO BE AFRAID, AND I AM NOT AFRAID NOW. 
SO YOU CAN JUST DROP THAT SUBJECT.  IF YOU WANT TO KNOW WHAT THAT ONE
TIME WAS THAT I WAS AFRAID, I WILL TELL YOU SOMETIME. 

MR. MCCABE:  YOUR HONOR PICKS UP THE WORD "FEAR."  I WOULD LIKE TO
GET BACK TO THE WORD "BIAS," THEN.  (P. 582.) 

     *         *       *         *         * 

THE COURT:  YOU HAVE A CURIOUS WAY OF EXPRESSING YOURSELF, TO SAY THE
LEAST. 

MR. SACHER: PERHAPS THAT MAY BE SO, YOUR HONOR, BUT UNFORTUNATELY I
CAN EXPRESS MYSELF IN NO OTHER WAY.  AND I WOULD LIKE, IF YOUR HONOR
WOULD BE KIND ENOUGH TO INDULGE ME TO REFRAIN FROM PERSONALITIES SO
THAT I MAY DEVELOP WHAT I REGARD AS A MOST IMPORTANT ARGUMENT ON THIS
QUESTION, ...  . 

THE COURT:  YOU ASK ME TO REFRAIN FROM PERSONALITIES? 

MR. SACHER:  I THINK SO.  YOU HAVE ACCUSED ME  ...  . 

THE COURT:  FOR WHAT PURPOSE?  I INDULGED IN NO PERSONALITIES. 

MR. SACHER:  YOU SAID I HAVE A CURIOUS WAY OF EXPRESSING MYSELF. 

THE COURT:  YES.  YOU SAID THE UNITED STATES ATTORNEY HAD CONFESSED
HIS GUILT.  I CONSIDERED THAT ...  . 

MR. SACHER:  I DID NOT USE THOSE WORDS.  I SAID HE MADE A CONFESSION
OF GUILT AND I STAND BY THAT STATEMENT. 

THE COURT:  WELL, THAT IS NO PERSONALITY.  THAT IS A COMMENT ON A
SORT OF ARGUMENT THAT I THINK IS OUT OF PLACE AND NOT HELPFUL. 

MR. SACHER:  ALL RIGHT.  (P. 607.) 

     *   *         *         *         * 

THE COURT:  ...  BUT YOU HAVE MADE SO MANY CHALLENGES OF BIAS AND
PREJUDICE AND SAID THAT EVERY TIME I RULED AGAINST YOU THERE IS
SOMETHING ABOUT IT THAT IS ABNORMAL, SO I HAVE BEEN DISPOSED TO LET YOU
GO ON.  BUT I THINK THE RECORD HAS INDICATED AN AMOUNT OF REPETITION
THAT IS UTTERLY UNPRECEDENTED. 

MR. MCCABE:  YOUR HONOR, WHEN THE DEMONSTRATION OF THE BIAS IS
REPEATED THE OBJECTIONS TO IT MUST BY NECESSITY BE REPEATED. 

THE COURT:  WELL, YOU MAY, AS I SAID BEFORE, YOU MAY CHALLENGE MY
BIAS AND PREJUDICE JUST AS OFTEN AS YOU THINK YOU SHOULD. 

MR. MCCABE:  WE SHALL, YOUR HONOR. 

THE COURT:  I TAKE NO UMBRAGE AT THAT.  BUT I SHOULD THINK THAT YOU
HAD COVERED THAT GROUND PRETTY WELL.  (PP. 612-613.) 

     *         *         *         *         * 

THE COURT:  WELL, SO MANY THINGS HAVE HAPPENED THAT SEEM, AS I READ
BACK OVER THAT RECORD, HARDLY CONSISTENT WITH ANYTHING OTHER THAN A
CONCERTED AND DELIBERATE AND WILFUL EFFORT TO DELAY.  BUT I HAVE TOLD
YOU THAT THE THOUGHT MERELY OCCURRED TO ME AND I HAVE PUT IT OUT OF MY
MIND FOR THE PRESENT.  I WOULDN'T WANT TO HAVE SOMETHING COME ALONG
LATER AND HAVE ANYONE FAIL TO UNDERSTAND THAT THERE IS THIS
INTERPRETATION OF WHAT HAS BEEN GOING ON.  I DO NOT SAY IT IS THE RIGHT
INTERPRETATION; IT MAY WELL NOT BE.  AND ALL I DO SAY IS THAT THE
THOUGHT FOR THE FIRST TIME CAME INTO MY MIND AND I PUT IT OUT. 

SO WE ADJOURN NOW UNTIL TOMORROW MORNING AT 10.30. 

MR. SACHER:  I WANT TO STATE ON THE RECORD, HOWEVER, THAT I DENY WHAT
YOUR HONOR SAID. 

THE COURT:  YOU DON'T NEED TO SHOUT, MR. SACHER. 

MR. SACHER:  NO. I RESENT  ...  . 

THE COURT:  IT IS POSSIBLE TO ADDRESS THE COURT OCCASIONALLY WITHOUT
SHOUTING. 

MR. SACHER:  YES.  YOUR HONOR IN A QUIET MANNER IS PICKING OUT A
POINT WHICH WILL RESULT IN CERTAIN HEADLINES TOMORROW MORNING.  FOR THE
RECORD I WANT TO MAKE IT CLEAR THAT I HAVE DONE NOTHING AND WILL NEVER
DO ANYTHING TO DELAY OR HINDER THE PROGRESS OF THIS CASE.  AND WHATEVER
I OR ANY OTHER COUNSEL IN THIS CASE HAVE DONE OR HAS DONE HAS BEEN
DIRECTED SOLELY TO THE ACHIEVEMENT OF THE END OF PROVING THAT THIS JURY
SYSTEM IS BAD. 

AND I THINK, YOUR HONOR, THAT THERE IS NO JUSTIFICATION FOR CLOSING
EVERY DAY'S SESSION WITH THE OBSERVATION AS TO WHAT THOUGHT WAS
ENTERING YOUR HONOR'S MIND CONCERNING OUR STATE OF MIND.  (P. 623.) 

*         *         *         *         * 

THE COURT:  NOW A LITTLE INCIDENT OCCURRED THIS MORNING ABOUT WHICH I
WILL HAVE NO MYSTERY.  DUE TO THE NUMEROUS COMMUNICATIONS OF ONE KIND
OR ANOTHER THAT HAVE BEEN ARRIVING UP AT MY HOME MY WIFE CAME DOWN HERE
THIS MORNING.  I SUPPOSE I SHOULD HAVE TOLD HERE NOT TO, AND IT IS MY
FAULT, BUT SHE DID.  AND, THEN, THERE WAS A LITTLE DISTURBANCE HERE DUE
TO A WOMAN WHO SAW THE EMPTY SEATS OVER ON THE SIDE WHERE THE PRESS
HAVE THEIR LOCATION AND SHE FELT SHE WAS ENTITLED TO GO THERE AND MADE
A LITTLE, SLIGHT DISTURBANCE WITH THE BAILIFFS.  AND SO MY WIFE SENT
THIS NOTE TO THE POLICE WHICH READS, "TELL DETECTIVE MITCHELL TO GUARD
THE JUDGE AT LUNCH HOUR."  AND AS THE MESSENGER PROCEEDED WITH THE NOTE
ONE OF THE ALERT REPORTERS WAS ABLE TO GET A HOLD OF THE NOTE, AND SO
THE RUMORS STARTED AROUND THE BUILDING, AND GOODNESS KNOWS WHERE ELSE
THEY HAVE GONE. 

AS TO THE WOMAN WHO DESIRED TO SIT ON THE OTHER SIDE WHERE THE EMPTY
SEATS ARE, I NOTICED THE MATTER AND I SENT A LITTLE COMMUNICATION OF MY
OWN TO THE BAILIFFS TO TELL THEM TO LEAVE HER ALONE.  I THOUGHT SHE WAS
RIGHT.  I SAW HER DURING RECESS HOUR IN MY CHAMBERS, AND I TOLD HER
THAT I THOUGHT SHE WAS RIGHT, AND THAT WHILE THOSE MEMBERS OF THE PRESS
WERE NOT OCCUPYING THE EMPTY SEATS PERHAPS IT WAS ONLY REASONABLE TO
HAVE THE LAST ROW AT LEAST MADE AVAILABLE TO THOSE WHO WERE WAITING TO
GET IN. 

NOW, THAT IS ALL THERE IS TO IT.  THERE IS NO MYSTERY.  THERE IS NO
DANGER.  I HAVEN'T FELT THE SLIGHTEST CONCERN ABOUT THE COMMUNICATIONS
I HAVE BEEN RECEIVING.  AND THERE IT IS. 

I HAVE NO NOTION THAT ANY OF THOSE COMMUNICATIONS HAVE BEEN INSPIRED
BY THE DEFENDANTS OR BY ANY OF THEIR COUNSEL.  I DO NOT FEEL THAT I AM
IN ANY PERSONAL DANGER AT ALL.  BUT IF I AM WRONG, I SHALL FACE THE
RISK CALMLY AND I SHALL DO MY DUTY.    NOW I THINK PERHAPS IT IS
APPARENT TO EVERYONE THAT THE CHARACTER OF THE ACCUSATIONS THAT HAVE
BEEN MADE AGAINST ME HERE FROM DAY TO DAY AND THE EXTRAVAGANT CHARGES
THAT HAVE NOT ONLY BEEN MADE ONCE OR TWICE BUT REPEATEDLY AND
EMOTIONALLY AND LOUDLY MAY WELL CAUSE SOME MISGUIDED AND POOR PEOPLE OR
OTHERS TO GET A WRONG IMPRESSION OF THE ADMINISTRATION OF JUSTICE AND
OF WHAT I AM DOING.  I HAVE NO GREAT OPINION OF MYSELF AS AN
INDIVIDUAL.  I DO HAVE GREAT RESPECT FOR THE OFFICE WHICH I HOLD.  I
REPRESENT HERE NOT THE RICH, NOT THE POOR, BUT ALL THE PEOPLE AND THE
MAJESTY OF THE GOVERNMENT OF THE UNITED STATES.  AND I AM COGNIZANT OF
THAT AND I AM TRYING TO DO THE BEST I CAN, TO BE JUST AND TO BE FAIR
ACCORDING TO MY LIGHTS.  I MAY MAKE MISTAKES, I SUPPOSE I OFTEN DO, BUT
I CAN ONLY DO MY BEST. 

YOU MAY PROCEED WITH THE TRIAL. 

MR. SACHER:  IF THE COURT PLEASE, I THINK WE TOO, BOTH THE DEFENDANTS
AND DEFENDANTS' COUNSEL, HAVE RECEIVED A SERIES OF LETTERS WITH THREATS
OF VIOLENCE AGAINST OURSELVES, OUR WIVES AND OUR CHILDREN.  INDEED,
WHEN I RETURNED TO MY HOME AT ONE O'CLOCK THIS MORNING MY WIFE GREETED
ME, NOT WITH A NOTE TO A DETECTIVE, BUT WITH SEVERAL LETTERS. 

I MIGHT IN PASSING SAY THAT YOUR HONOR MAY HAVE RECEIVED CRANK
NOTES.  I AM SURE THAT THEY WERE NOT INSPIRED BY ANYTHING WE SAID OR
DID.  AND IN THAT CONNECTION I MAY SAY THAT SO FAR AS THE DEFENDANTS
ARE CONCERNED THEY HAVE RECEIVED MUCH MORE THAN CRANK NOTES.  YOU WILL
RECALL THAT IN ONE OF THE ARGUMENTS I POINTED OUT  ...  . 

THE COURT:  I AM GLAD YOU CAN TELL THE DIFFERENCE  ...  . 

MR. SACHER:  WILL YOUR HONOR  ...  . 

THE COURT:  I AM GLAD YOU CAN TELL THE DIFFERENCE BETWEEN A CRANK
NOTE AND OTHERS.  BUT I AM NOT DISPOSED TO HAVE ARGUMENT ABOUT
EVERYTHING. 

MR. SACHER:  I KNOW, YOUR HONOR. 

THE COURT:  MAY WE NOT EVEN PASS THIS INCIDENT WITHOUT EXTENDED
DISCUSSION?  (PP. 664-665.) 

     *         *         *         *   * 

MR. SACHER:  MR. GLADSTEIN, NOW WE CAN'T HEAR YOU. 

THE COURT:  NOW THAT IS A STRANGE ACCUSATION, MR. GLADSTEIN, BECAUSE
YOUR VOICE IS VERY PENETRATING AND PLEASANT. 

MR. SACHER:  WHY, YOUR HONOR, I MUST SAY, HOWEVER, THAT I DID NOT
HEAR MR. GLADSTEIN.  HE WAS SPEAKING SO SOFTLY. 

THE COURT:  I DON'T DOUBT IT.  THAT IS ALL RIGHT. 

MR. GLADSTEIN:  PERHAPS THE NEWSPAPERS SHOULD TAKE NOTE.  THEY HAVE
BEEN SAYING THAT I AM VERY LOUD AND BRASH, AND SO FORTH, BUT IT DOES
NOT REALLY MATTER TO ME PERSONALLY, YOUR HONOR. 

THE COURT:  NO, WE MUST NOT WORRY ABOUT WHAT THE NEWSPAPERS SAY ABOUT
IT. 

MR. GLADSTEIN:  THERE WOULD BE VERY LITTLE TO ENTERTAIN US IF WE TOOK
TOO SERIOUSLY WHAT SOME OF THEM SAY. 

THE COURT:  YOU KNOW, I HAVE OFTEN FELT, AS I HAVE OFTEN EXPRESSED
MYSELF HERE, THAT IT IS BETTER NOT TO BE STUFFY.  I TRY NOT TO BE. 

MR. GLADSTEIN:  ALL RIGHT.  (P. 667.) 

     *         *         *    *         * 

THE COURT:  NOW, MR. GLADSTEIN, I KNOW ALL ABOUT LEADING QUESTIONS,
AND WHEN THE COURT IN HIS DISCRETION WILL ALLOW THEM, AND WHEN HE
WON'T.  NOW YOU GO AHEAD AND LEAD HIM AS LITTLE AS NECESSARY. 

MR. GLADSTEIN:  I DON'T HAVE TO LEAD HIM AT ALL, AND I WON'T, YOUR
HONOR. 

THE COURT:  THAT IS ALL RIGHT.  IT IS JUST NOT TO GET INTO AN
UNNECESSARY ARGUMENT ABOUT IT. BECAUSE I KNOW PLENTY ABOUT LEADING
QUESTIONS.  I HAVE PROBABLY TRIED A FEW OF THEM MYSELF IN MY DAY.  (P.
714.) 

     *         *         *         *         * 

MR. SACHER:  ...  WE SHALL ASK FOR AND INSIST UPON THE TIME NECESSARY
TO EXPLORE THOSE RECORDS IN ORDER  ...  . 

THE COURT:  I WISH YOU WOULD NOT USE THAT EXPRESSION "INSIST UPON." 

MR. SACHER:  THAT MEANS URGING, THAT IS ALL. 

THE COURT:  YOU KNOW, YOU USE IT ALL THE TIME. 

MR. SACHER:  I DON'T DO IT ALL THE TIME.  I THINK THE RECORD SHOULD
INDICATE THAT "ALL THE TIME" TO YOUR HONOR IN THIS INSTANCE MEANS
ONCE. 

THE COURT:  PERHAPS WHEN I USED THE EXPRESSION "ALL THE TIME" I USED
IT IN A RHETORICAL SENSE.  BUT, ANYWAY, I WOULD LIKE TO HAVE YOU
UNDERSTAND THAT YOU WILL INSIST UPON NOTHING. 

MR. SACHER:  WELL, WE WILL URGE THAT. 

THE COURT:  I WILL RULE WHAT IS TO BE DONE.  (P. 884.) 

     *         *         *         *  * 

MR. SACHER:  I HAVE JUST ONE OBSERVATION TO MAKE, YOU HONOR,
CONCERNING DELAY.  WHILE SPEED IS A VERY COMMENDABLE OBJECTIVE, I THINK
JUSTICE IS A GREATER ONE, AND THAT IF IT BE  ...  . 

THE COURT:  WELL, IT IS NICE TO HAVE YOU REMIND ME OF THAT. 

MR. SACHER:  WHAT IS THAT, YOUR HONOR? 

THE COURT: I SAY, IT IS NICE TO HAVE YOU REMIND ME OF THAT.  (P.
885.) 

     *         *         *         *         * 

MR. GLADSTEIN:  ...  NOW IT SEEMS TO ME VERY PLAIN THAT MR. MCGOHEY
IS HERE TOYING WITH POSSIBILITIES.  THIS WITNESS OR OTHER WITNESSES
...  . 

THE COURT:  WELL, HE HAS GOT SOME COMPETITION IN THAT. 

MR. GLADSTEIN:  WELL, WE ARE NOT GOING TO LET HIM TOY.  WE ARE VERY
SERIOUS ABOUT THIS. 

THE COURT:  OH, WELL, I KNOW. 

MR. GLADSTEIN:  WE ARE QUITE SERIOUS. 

THE COURT: YOU TAKE OVER THE COURTROOM ANY TIME, BUT I AM HERE
RUNNING THE COURT, SO DON'T SAY, AS YOU AND MR. SACHER ARE APT TO DO:
YOU INSIST ON THIS AND WE ARE GOING TO DO THIS.  YOU ARE GOING TO DO
WHAT I TELL YOU TO. 

MR. GLADSTEIN:  WELL, I AM GOING TO REMAIN SERIOUS, REGARDLESS OF
WHAT YOUR HONOR TELLS ME. 

THE COURT:  THAT IS RIGHT.  (PP. 931-932.) 

     *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION III - PP. 933-934; FEB. 2, 1949.) 

(CONDUCT INVOLVED IN SPECIFICATION IV - PP. 1034-1038; FEB. 3,
1949.) 

     *         *         *         *         * 

MR. GLADSTEIN:  ...  NOW, ALTHOUGH EVERYBODY, ONE WOULD THINK, WHO
DID NOT PREJUDGE THE MATTER HERE  ...  . 

THE COURT:  WELL I DENY THE MOTION TO DISQUALIFY ME. 

MR. GLADSTEIN:  WELL, YOU WERE ANTICIPATING.  I WASN'T GOING TO MAKE
ONE. 

THE COURT:  I AM VERY QUICK TO CATCH ON, AND I THOUGHT WHEN YOU SAID
"ANYBODY WHO DOES NOT PREJUDGE," IT WAS JUST ANOTHER WAY OF TELLING ME
AGAIN WHAT YOU HAVE TOLD ME SO MANY TIMES, AND YOUR COLLEAGUES HAVE
TOLD ME SO MANY TIMES:  THAT I HAVE PREJUDGED IT ALL; THAT I AM BIASED
AND PREJUDICED AND UNFIT TO SIT HERE.  NOW, I AM FAMILIAR WITH THAT,
AND IF YOU THINK YOU ARE GOING TO GET ME EXCITED SAYING THAT OVER
AGAIN, YOU ARE MAKING A BIG MISTAKE. 

MR. GLADSTEIN:  I WASN'T GOING TO SAY IT OVER AGAIN, AND IF I WERE IT
WOULD NOT BE FOR THE PURPOSE OF GETTING YOU EXCITED.  IT IS TRUE I HAVE
A DEFINITE MIND ON THE QUESTION OF WHETHER LEGALLY YOU ARE
DISQUALIFIED, WHETHER YOU ARE BIASED, BUT I WASN'T GOING TO EXPRESS
IT. 

THE COURT:  THEY WENT ALL THE WAY UP TO THE UNITED STATES SUPREME
COURT WITH IT, AND I SUPPOSE IF THERE WAS ANY FURTHER YOU COULD GO, YOU
WOULD DO THAT. 

MR. GLADSTEIN: THEY DIDN'T PASS ON YOUR HONOR'S BIAS.  THEY DID NOT
SAY YOU WERE UNBIASED  ...  .

THE COURT:  THEY DENIED THE APPLICATION FOR CERTIORARI. 

MR. GLADSTEIN:  YES, THEY REFUSED TO HEAR THE QUESTION OF WHETHER OR
NOT YOU WERE BIASED, THAT IS TRUE, BUT THAT DOES NOT MEAN, YOUR HONOR,
THAT THEY PASSED FAVORABLY ON THE CONTENTION OF THE COURT.   IT DOES
NOT MEAN, OF COURSE, THAT THEY HELD THAT YOU WERE BIASED, BUT NEITHER
DOES IT MEAN THAT THEY HELD YOU WERE UNBIASED. 

THE COURT:  WELL, YOU DON'T REALLY NEED TO KEEP RUBBING IT IN AND
TELLING ME EVERY DAY THAT I AM PREJUDICED, BIASED, CORRUPT, AND ALL
THAT SORT OF THING, BECAUSE AFTER A MAN HAS BEEN CALLED NAMES A CERTAIN
NUMBER OF TIMES THEY HAVE NO EFFECT ON HIM ANY MORE.  (PP. 1034-1035.) 

     *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION V - PP. 1049-1059; FEB. 3, 1949.) 

(CONDUCT INVOLVED IN SPECIFICATION VI - PP. 1085-1092; FEB. 4,
1949.) 

     *         *         *         *         * 

THE COURT:  WELL, YOU SEE, YOU AND YOUR COLLEAGUES HAVE APPARENTLY
ADOPTED A NEW TECHNIQUE IN CRIMINAL CASES BY WHICH INSTEAD OF THE
DEFENDANTS WHO ARE INDICTED BEING TRIED, THE COURT AND ALL THE MEMBERS
OF THE COURT ARE THE ONES WHO MUST SUFFER THE EXCORIATIONS AND
ACCUSATIONS OF COUNSEL.  BUT I THINK, PERHAPS, WITH PATIENCE THERE WILL
BE AN END.  SO YOU WILL PLEASE LET THE MATTER DROP THERE, AND MR.
ISSERMAN WILL PROCEED WITH HIS QUESTIONS. 

MR. ISSERMAN:  I WILL PROCEED, YOUR HONOR, BUT I AM AGAIN CONSTRAINED
ON BEHALF OF MY CLIENTS TO OBJECT TO YOUR HONOR'S REMARK CHARACTERIZING
THE QUESTIONING WHICH I AM INDULGING IN, OR SUGGESTING THAT THE
QUESTIONING IS A STALLING AND DELAYING TACTICS, AND TO THE DESCRIPTION
OF THIS CHALLENGE TO A JURY, WHICH UNDER THE LAW WE HAVE A RIGHT TO
MAKE ON BEHALF OF OUR CLIENTS, AS A NEW TECHNIQUE ...  .  (PP. 1090
1091.) 

*         *         *         *         * 

THE COURT:  WELL, PERHAPS WE HAD BETTER LET EACH ONE OF THE COUNSEL
FOR THE DEFENDANTS SAY A WORD OR TWO NOW, BECAUSE THEY LOOK AS THOUGH
THEY DESIRE TO STATE THEIR POSITIONS TOO. 

MR. MCCABE, WOULD YOU LIKE TO SAY SOMETHING? 

MR. MCCABE:  I HAD NOT INTENDED TO SAY ANYTHING, YOUR HONOR, BUT AS
LONG AS YOUR HONOR INVITES IT I WOULD LIKE TO EXPRESS A THOUGHT THAT
HAS BEEN GOING THROUGH MY MIND FOR SEVERAL DAYS:  (P. 1091.) 

     *         *       *         *         * 

THE COURT:  IT MIGHT BE PREJUDICE, I SUPPOSE? 

MR. MCCABE:  NO, IT HAS BECOME CLEAR TO ME THAT YOUR HONOR IS DOING
THE VERY SAME THING.  YOUR HONOR BY CONSTANTLY REFERRING TO OUR TACTICS
AS DELAYING TACTICS; BY REFERRING TO EVIDENCE WHICH SEEMS TO ME TO BE
VERY CLEAR AND PRECISE, AS BEING CONFUSING, AND REFERRING TO GAPS IN
THE TESTIMONY - I THINK THAT YOUR HONOR SEEMS TO HAVE IN HIS MIND DOING
THE VERY THING WHICH YOU, I THINK UNJUSTLY, INDICATED THAT WE MIGHT BE
DOING.  IT SEEMS TO ME THAT YOUR HONOR'S WORDS, THAT CONSTANT
REPETITION OF OUR NEW TECHNIQUES AND DELAYING TACTICS, AND DRAGGING
THINGS OUT AND RAMBLING ON, THAT THAT IS ADDRESSED  ...  . 

THE COURT:  WELL, MAYBE I DO RAMBLE A LITTLE NOW AND THEN, BUT I
THINK THAT MAY BE THE PRIVILEGE OF THE COURT.  (P. 1092.) 

     *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION VII - PP. 1134-1141; FEB. 4,
1949.) 

     *         *         *         *         * 

MR. GLADSTEIN:  THANK YOU, YOUR HONOR. 

I HAVE JUST PULLED OUT A RANDOM - SOMETHING THAT THE CLERK IN THIS
COURT DOES NOT DO WHEN HE PICKS JURORS - TWO  ...  . 

MR. MCGOHEY:  I MOVE TO STRIKE THAT, YOUR HONOR. 

THE COURT:  I DID NOT EVEN HEAR THAT PART.  I HOPE IT WASN'T ANYTHING
GOOD.  (P. 1569.) 

*         *         *         *         * 

MR. ISSERMAN:  I AM SORRY, I OBJECT TO YOUR HONOR'S REMARK AGAIN.  IT
IS WHOLLY UNCALLED FOR. 

THE COURT:  YOU MAY DO ALL THE OBJECTING YOU WANT, BUT I AM RUNNING
THIS COURT AND WE ARE NOT GOING TO HAVE THIS INTERMINABLE DELAY.  (P.
1574.) 

     *         *       *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION VIII - PP. 1660-1671; FEB. 14,
1949.) 

     * *         *         *         * 

THE COURT:  MR. SACHER, YOU ARE BECOMING POSITIVELY INSOLENT. 

MR. SACHER:  WELL, I AM NOT.  I AM STATING  ...  . 

THE COURT:  NOW I WON'T HAVE IT. 

MR. SACHER:  I AM STATING WHAT YOUR HONOR SEEMS  ...  . 

THE COURT:  YOU HAVE CHARGED ME WITH ABOUT EVERYTHING THAT A LAWYER
CAN CHARGE A COURT  ...  . 

MR. SACHER:  I AM MAKING NO CHARGE  ...  . 

THE COURT:  YOU ARE CHARGING ME BY THIS INNUENDO OF SOME SORT OF
CONNIVANCE WITH THE UNITED STATES ATTORNEY, AND I JUST WILL NOT HAVE
ANY MORE OF THAT.  (P. 1661.) 

     *         *         *         *         * 

THE COURT:  MR. GLADSTEIN, I HOPE I AM MISUNDERSTANDING THE PURPOSE
OF THAT COMMENT.  IT DOES NOT SEEM TO ME THAT YOU NEEDED TO DO IT.  I
SEEMED TO HAVE JUST ONE OF THOSE LITTLE FISHHOOKS IN THAT YOU SO OFTEN
SPRINKLE IN YOUR CONVERSATION, AND I SUGGEST THAT YOU OMIT THEM, IF
POSSIBLE. 

NOW, YOU HAVE BEEN ALLOWED EVERY REASONABLE LATITUDE HERE, AND IT IS
MY INTENTION TO GIVE YOU EVERY REASONABLE LATITUDE TO BRING OUT
WHATEVER YOU WANT TO BRING OUT  ...  . 

MR. GLADSTEIN:  VERY WELL. 

THE COURT (CONTINUING):  BUT I CANNOT CONTINUE TO DO IT INDEFINITELY,
AND IF I GET THE IMPRESSION THAT SARCASTIC COMMENTS AND CRITICISMS OF
THE COURT BY INNUENDOES ARE BEING DROPPED IN HERE AND THERE, IT IS
PERHAPS GOING TO AFFECT MY DISCRETION SOMEWHAT IN THE RULINGS I MAKE ON
THE EXTENT OF YOUR CROSS-EXAMINATION.  (PP. 1813-1814.) 

     *         *         *         *         * 

THE COURT:  DO YOU WISH TO MAKE A MOTION THAT I DISQUALIFY MYSELF FOR
PREJUDICE, AS YOU HAVE ALREADY MADE? 

MR. CROCKETT:  I WANT TO RESERVE THE RIGHT TO MAKE SUCH A MOTION,
YOUR HONOR. 

THE COURT:  YOU HAVE MADE IT, I SUPPOSE, YOU AND YOUR COLLEAGUES, I
DON'T KNOW HOW MANY TIMES, AND I THINK WE ALL UNDERSTAND THAT YOU
CHARGE I AM BIASED AND PREJUDICED AND CORRUPT AND EVERYTHING ELSE.  (P.
2094.) 

     *         *         *      *         * 

(CONDUCT INVOLVED IN SPECIFICATION IX - P. 2097; FEB. 18, 1949.) 

     *         *         *  *         * 

THE COURT:  OF COURSE, YOU ABANDONED ALL THOUGHT OF THAT, YOU AND
YOUR COLLEAGUES, LONG AGO HERE BECAUSE YOU CHARGED ME AGAIN AND AGAIN
WITH CORRUPTION, BIAS, PREJUDICE AND HAVING SOMETHING TO DO WITH THE
SYSTEM THAT I HAD NOTHING TO DO WITH.  SO I UNDERSTAND THOROUGHLY WHAT
YOU THINK ABOUT ME. NOW, I CAN'T HELP THAT.  I MUST DO MY DUTY AS BEST
I CAN.  SO IF YOU WANT TO GO ON AND CALL ME SOME MORE NAMES, GO AHEAD
AND DO IT.  IT MAY COME WITHIN PART OF YOUR DUTY AS YOU SEE IT, AND
CERTAINLY IT WOULD BE RELEVANT TO THE CASE, AND I AM NOT GOING TO STOP
YOU, SO GO RIGHT AHEAD AND CALL ME ANYTHING YOU WANT.  (P. 2098.) 

     *         *         *         *         * 

MR. GLADSTEIN:  ...  THAT THE COURT IS NOT CONCERNED WITH THE
CONSUMPTION OF TIME IS EVIDENT FROM THE FACT THAT DURING THE PAST 35 OR
40 OR 45 MINUTES, PERHAPS LONGER, AS EACH OF THE FOUR ATTORNEYS WHO
PRECEDED ME ATTEMPTED TO PRESENT HIS STATEMENTS OF OBJECTIONS, THE
COURT CONSTANTLY AND FREQUENTLY INTERRUPTED FOR THE PURPOSE OF  ...  . 
THE COURT:  IF YOU EXPECT I AM GOING TO SIT HERE LIKE A BUMP ON A LOG
WHILE THEY MAKE STATEMENTS THAT ARE ABSOLUTELY NOT SO, I CAN TELL YOU
NOW I WON'T DO IT. 

MR. GLADSTEIN:  I DESIRE  ...  . 

THE COURT:  THERE IS NO RULE I EVER HEARD OF THAT A JUDGE IS SUPPOSED
TO SIT SILENT WHILE THE ATTORNEYS FLAY HIM. 

MR. GLADSTEIN:  I DESIRE TO MAKE AN ORDERLY, LOGICAL PRESENTATION OF
WHAT I HAVE TO SAY,  ...  .    THE COURT:  GO AHEAD AND DO IT.  (P.
2099.) 

     *         *         *  *         * 

MR. GLADSTEIN:  YOUR HONOR, I WOULD LIKE TO FINISH MY STATEMENT FOR
THE RECORD.  I WISH THE RECORD TO SHOW MY OBJECTION TO THE TONE AND THE
MANNER IN WHICH THE COURT DELIVERED THAT COMMAND AS UNBECOMING A COURT,
AND I OBJECT TO IT.  I ALSO  ...  . 

THE COURT:  THERE IS NOTHING UNBECOMING ABOUT IT.  I AM THROUGH BEING
FOOLED WITH IN THIS CASE. 

MR. GLADSTEIN:  NOW, IF YOUR HONOR PLEASE  ...  . 

THE COURT:  IF YOU DON'T LIKE IT YOU CAN LUMP IT.  PUT THAT DOWN. 

MR. ISSERMAN:  I OBJECT TO YOUR HONOR'S REMARK AND CHARACTERIZATION
OF THE CONDUCT OF COUNSEL, AND I ASK THAT YOUR HONOR STRIKE THAT
REMARK. 

THE COURT:  OH YES, YES, I HAVE HEARD ALL THAT.  NOW I AM SICK OF
IT. 

MR. GLADSTEIN:  NOW I WISH TO ADD TO MY OBJECTION THE UNSEEMLY REMARK
OF THE COURT SAYING THAT IF WE DO NOT LIKE IT WE COULD LUMP IT.  I
OBJECT TO IT AND ASK THE COURT TO WITHDRAW AND STRIKE THAT STATEMENT
FROM THE RECORD. 

THE COURT:  YES, I REFUSE - I DENY THE MOTION.  (PP. 2276-2277.) 

    *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION X - PP. 2383-2385; FEB. 28,
1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XI - P. 2404; FEB. 28, 1949.) 

     *         *         *         *         * 

MR. MCGOHEY:  WELL, IT IS A DISHONEST QUESTION, YOUR HONOR, AND THAT
IS THE BASIS OF THE OBJECTION TO IT. 

THE COURT:  IT IS IN MR. GLADSTEIN'S BEST STYLE.  (P. 2490.) 

     * *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XII - PP. 2528-2529; MARCH 1,
1949.) 

     *    *         *         *         * 

MR. GLADSTEIN:  ...  I DESIRE THE RIGHT, AND I REQUEST THE COURT TO
GRANT IT, FOR US TO HAVE AN INVENTORY MADE OF THE CONTENTS OF THOSE
ENVELOPES BEFORE THEY ARE TAKEN FROM US PERMANENTLY.  WE WILL ALSO ASK
LEAVE AT TIMES, SUITABLE TO THE COURT, TO MAKE COPIES OF THOSE  ... . 

THE COURT:  DO YOU REALIZE, MR. GLADSTEIN, YOU ARE INSINUATING THAT I
HAVE POSSESSION OF THOSE EXHIBITS AND WILL DESTROY SOME OF THEM? 

MR. GLADSTEIN:  I MAKE NO SUCH INSINUATION.  (P. 2556.) 

     *         *         *         * * 

MR. SACHER:  ...  THERE IS REALLY NOTHING FUNNY ABOUT THIS. 

THE COURT:  I WAS JUST THINKING IT WAS ONLY A LITTLE WHILE AGO YOU
WERE TALKING ABOUT JUDGE KNOX'S BOOK IN A RATHER DIFFERENT WAY.  BUT
YOU CAN DO THAT.  THAT IS ALL RIGHT. 

MR. SACHER:  BUT THIS IS A STATEMENT OF FACT. 

THE COURT:  I AM NOT GOING TO STOP SMILING WHEN I SEE SOME OCCASION
TO SMILE JUST BECAUSE MR. SACHER DOES NOT LIKE IT. 

MR. SACHER:  IT IS NOT THE SMILE.  I WELCOME SMILES.  I INDULGE IN
THEM A GOOD DEAL, BUT I DON'T THINK YOU OUGHT TO TREAT THIS ARGUMENT
WITH LEVITY BECAUSE I THINK IT IS AN IMPORTANT QUESTION.  (PP. 2640
2641.) 

     *         *         *         *         * 

THE COURT:  ...  WE WILL THEN, BY THE USUAL PROCESS OF SELECTING
NAMES OUT OF THE WHEEL, PUT 12 JURORS IN THE JURY BOX, BUT THE
QUESTIONS WILL BE NOT ONLY TO THEM BUT TO THE OTHERS WHO MAY BE SITTING
IN THE COURTROOM.  OTHERWISE THE REPETITION OF THE QUESTIONS WILL BE
SUCH AS TO UTTERLY WEAR ME OUT, OR ANYONE ELSE UNDER THE CIRCUMSTANCES,
AND BE UTTERLY UNNECESSARY.  (P. 2665.) 

     *         *         *         *         * 

THE COURT:  WELL YOU KNOW, IT SEEMS SO EASY FOR THE COURT TO SEND A
LETTER.  MY PRE-OCCUPATIONS NOW ARE SUCH THAT I SIMPLY COULD NOT DO IT.
IT IS HARD FOR PEOPLE TO REALIZE THE BURDEN THAT I HAVE BEEN CARRYING
HERE AND THE MANY DETAILS OF ONE KIND OR ANOTHER THAT I HAVE TO TAKE
CARE OF, AND I DON'T THINK IT WOULD BE PROPER FOR ME TO DO IT ANYWAY,
BUT THE MAIN QUESTION IS WHETHER THERE WOULD BE SOME SPECIAL HARDSHIP
TO YOU.  (P. 2707.) 

*         *         *         *         * 

MR. MCCABE:  I JUST WANT TO GIVE YOU THE CITATION.  IT IS FARNSWORTH
VS. SANFORD IN 115 FED.  (2D) 375. 

THE COURT:  THANK YOU.  LET ME GLANCE AT THIS, BUT I CAN TELL YOU ALL
THAT I AM NOT GOING TO DASH OFF ANY DETERMINATION ON SOME QUESTION OF
LAW BY GLANCING AT A CASE OR TWO ON THE SPUR OF THE MOMENT.  I DON'T
LIKE TO SEE JUDGES DO THAT AND I DON'T DO IT MYSELF.  I HAVE TRIED HERE
TO GIVE EVERY QUESTION THAT COMES UP CAREFUL CONSIDERATION AND THAT HAS
BEEN ONE OF THE THINGS THAT HAS BEEN WEARING ME OUT HERE BECAUSE I HAVE
BEEN GETTING PROPOSITIONS OF LAW IN RATHER CLOSE PROXIMITY TO ONE
ANOTHER.  (P. 3121.) 

     *         *       *         *         * 

MR. SACHER:  IT IS VERY STRANGE THAT ON THE OCCASIONS WHEN YOU
SCRATCHED YOUR HEAD AND PULLED YOUR EAR, WE WERE SPEAKING AND NOT MR.
MCGOHEY. 

THE COURT:  MAYBE YOU WERE NOT WATCHING ME. 

MR. SACHER:  I JUST WANT TO SAY THAT YOUR CONDUCT AT ALL TIMES - YOU
SEE, YOU ARE DOING IT AGAIN. 

THE COURT:  I KNOW, YOU ARE GOING TO SAY I AM CORRUPT AND I AM
DISQUALIFIED.  YOU CALLED ME ALL THOSE THINGS BEFORE.  NOW YOU CAN RUN
THE CATALOGUE AGAIN AND I WILL LISTEN PATIENTLY.  MAKE IT JUST AS BAD
AS YOU CAN. 

MR. SACHER:  YOUR HONOR, I AM CERTAINLY AWARE OF THE FACT THAT IF I
BEAR FALSE WITNESS AGAINST YOUR HONOR IN ANYTHING I HAVE SAID THAT I AM
SUBJECT TO DISCIPLINARY MEASURES AND I AM NOT INVITING DISCIPLINARY
MEASURES BY MAKING FALSE STATEMENTS. 

THE COURT:  YOU MEAN THAT I WILL TAKE DISCIPLINARY MEASURES AGAINST
YOU BECAUSE YOU SAID I SCRATCHED MY HEAD?  DON'T BE ABSURD, MR.
SACHER.  DON'T BE ABSURD. 

MR. SACHER:  THE POINT I AM MAKING IS THAT IN EVERY AVAILABLE MEANS
YOUR HONOR IS CONVEYING TO THE JURY YOUR LACK OF SYMPATHY IF NOT
HOSTILITY TO THE DEFENDANTS, THEIR COUNSEL'S PRESENTATION OF THE CASE,
AND IN THESE CIRCUMSTANCES I WANT CERTAINLY TO NOTE ON BEHALF OF MY
CLIENTS A VIGOROUS OBJECTION TO YOUR HONOR'S CONDUCT AND I WISH TO JOIN
MR. GLADSTEIN IN THE MOTION TO DECLARE A MISTRIAL BY THE WITHDRAWAL OF
A JUROR. 

THE COURT:  MOTION DENIED.  (PP. 3316-3317.) 

     *     *         *         *         * 

MR. GLADSTEIN:  ...  THERE IS NOTHING UNUSUAL ABOUT THAT REQUEST AND
WE MAKE IT, AND WE ASK THE COURT TO REALLY GIVE SOME CONSIDERATION TO
IT. 

THE COURT:  YOU KNOW, THAT WORD "REALLY," THERE, THAT IS THE WAY YOU
DO.  YOU PUT THAT LITTLE SLY INSINUATION IN, AS MUCH AS TO SAY THAT
HERETOFORE I HAVEN'T REALLY GIVEN THE MATTER ANY CONSIDERATION.  (P.
3332.) 

     *         *         * *         * 

MR. GLADSTEIN:  I MOVE THAT THE REMARKS YOU HAVE JUST MADE CONCERNING
THE ENJOYMENT  ...  . 

THE COURT:  I SEE THEM SMILING, SNEERING AND SNICKERING THERE.  THE
JURY UNDOUBTEDLY SEES IT AS WELL. 

MR. GLADSTEIN:  JUST A MINUTE.  IF YOUR HONOR PLEASE, I ASSIGN THOSE
REMARKS AS PREJUDICIAL MISCONDUCT ON THE PART OF THE COURT.  I ASSIGN
AS MISCONDUCT YOUR REFUSAL TO PERMIT ME TO MAKE AN OBJECTION. 

THE COURT:  WHEN DID I REFUSE? 

MR. GLADSTEIN:  BY YOUR INTERRUPTION AT THE PRESENT TIME AND BY
PYRAMIDING THE MISCONDUCT WHICH I AM ASSIGNING.  I ASK THE COURT TO
INSTRUCT THE JURY  ...  . 

THE COURT:  YOU ARE NOW TOLD THAT YOU MAY GO AHEAD AND MAKE YOUR
REMARKS IN EXTENSO.  (P. 3769.) 

     *         *         *   *         * 

(CONDUCT INVOLVED IN SPECIFICATION XIII - PP. 3942-3943; APRIL 4,
1949.) 

     *         *         *       *         * 

MR. GLADSTEIN:  YOUR HONOR, I AM ALLOWED, AM I NOT, TO ASSIGN AS
MISCONDUCT REMARKS OF THE COURT THAT, AS A LAWYER, I THINK CONSTITUTE
MISCONDUCT? 

THE COURT:  YOU MAY ATTACK ME ALL YOU WANT. 

MR. GLADSTEIN:  THAT IS NOT WHAT I SAID. 

THE COURT:  YOU MAY CLAIM THAT I HAVE BEEN GUILTY OF JUDICIAL
MISCONDUCT OF EVERY NAME, NATURE AND DESCRIPTION, THAT IS YOUR RIGHT -
AND I SHALL TAKE NO OFFENSE AT IT. 

MR. GLADSTEIN:  I OBJECT TO THE COURT'S REMARKS AND ASSIGN THE
COURT'S LAST REMARK AS MISCONDUCT. 

THE COURT:  VERY WELL.  (P. 4028.) 

     *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XIV - PP. 4058-4059; APRIL 5,
1949.) 

     *         *         *         *         * 

MR. CROCKETT:  I MUST OBJECT TO THAT STATEMENT, YOUR HONOR, AS
SUGGESTING TO MR. GORDON HOW HE CAN GET WHAT HE SEEMS TO BE TROUBLED
ABOUT GETTING OUT OF THIS WITNESS. 

THE COURT:  MR. CROCKETT, IT IS THE FUNCTION OF THE COURT HERE TO
ADMINISTER JUSTICE WHICH I AM TRYING TO DO TO THE BEST OF MY ABILITY. 
NOW YOU MUST KNOW THAT SUCH COMMENT AS YOU JUST MADE IS NOT RIGHT. 

MR. CROCKETT:  BUT I THINK THE COURT APPRECIATES THE FACT  ...  . 

THE COURT:  NOW I HAVE BEEN STANDING FOR ALL KINDS OF PICKING ON ME
BY THE LAWYERS FOR THE DEFENSE HERE AND I AM NOT GOING TO RAISE ANY
GREAT ISSUE ABOUT THIS ONE, BUT I REALLY - I REALLY THINK IF IT GETS TO
A POINT WHERE THE JUDGE MAY NOT INDICATE WHAT HE THINKS IS THE PROPER
THING TO DO, IT HAS REACHED A STRANGE AND PITIFUL STATE OF AFFAIRS. 
(P. 4177.) 

 *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XV - PP. 4228-4229; APRIL 7,
1949.) 

   *         *         *         *         * 

MR. GLADSTEIN:  MAY I CALL YOUR HONOR'S ATTENTION TO THE FACT THAT
BECAUSE YOU JUST TOOK UMBRAGE AT AN OBJECTION WHICH MR. ISSERMAN MADE
AS A LAWYER  ...  . 

THE COURT:  I TOOK NO UMBRAGE. 

MR. GLADSTEIN:  ...  YOU THEN REACTED  ...  . 

THE COURT:  I SUPPOSE YOU BEGIN  ...  . 

MR. GLADSTEIN:  MAY I FINISH, YOUR HONOR? 

THE COURT:  ...  TO TALK ABOUT MY INFLECTION OF VOICE  ...  . 

MR. GLADSTEIN:  NO, I AM NOT TALKING ABOUT YOUR INFLECTION. 

THE COURT:  BUT I AM NOT TAKING ANY UMBRAGE AT ALL. 

MR. GLADSTEIN:  BUT, YOUR HONOR  ...  . 

THE COURT: BUT I AM NOT GOING TO HAVE A LONG-DRAWN-OUT DISCUSSION OF
SOMETHING THAT IS PERFECTLY CLEAR TO ME.  (P. 4403.) 

     *       *         *         *         * 

MR. GLADSTEIN:  I ASSIGN YOUR HONOR'S HANDLING OF MY OBJECTION AS
MISCONDUCT. 

THE COURT:  I AM GETTING USED TO THESE CHARGES OF MISCONDUCT.  I
DON'T THINK THERE HAS EVER BEEN A CASE WHERE SO MANY CHARGES OF
MISCONDUCT HAVE BEEN MADE WITH SO LITTLE FOUNDATION.  (P. 4622.) 

     *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XVI - PP. 4787-4788; APRIL 19,
1949.) 

     *         *         *         *         * 

MR. GLADSTEIN:  I ASK YOUR HONOR TO STRIKE THAT EVIDENCE, AND I WILL
ALSO ASSIGN, AS I DID BEFORE, YOUR HONOR'S STATEMENT AS MISCONDUCT
BECAUSE IT GIVES THE IMPRESSION THAT THERE IS SOME POSSIBLE
RELATIONSHIP, WHICH THERE CANNOT BE, BETWEEN THIS KIND OF STATEMENT AND
THE CHARGES IN THE CASE. 

THE COURT:  HOW CAN I RULE THAT THE EVIDENCE IS INADMISSIBLE WITHOUT
NECESSARILY GIVING THE INFERENCE THAT IT HAS A BEARING ON THE CASE. 
AND EVERY TIME A JUDGE RULES THAT WAY, THE DOCTRINE THAT YOU GENTLEMEN
HAVE DEVELOPED HERE IS THAT THAT IS JUDICIAL MISCONDUCT.  NOW I CAN'T
STOP LAWYERS FROM CALLING ME NAMES AND SAYING I AM GUILTY OF JUDICIAL
MISCONDUCT AND THAT I AM PREJUDICED, AND THIS, THAT AND THE OTHER
THING, AND YOU CAN KEEP THAT UP UNTIL THE COWS COME HOME; THAT IS ALL
RIGHT, AND I TAKE NO UMBRAGE AT IT.  (P. 4799.) 

     *         *         *         * * 

THE COURT:  WHY ALL OF THE DEFENDANTS ARE SMILING BROADLY. 

DEFENDANT GATES:  WHY CERTAINLY WE ARE. 

DEFENDANT POTASH:  CERTAINLY WE ARE. 

THE COURT:  WE ARE GETTING BACK TO THAT COUNTRY CLUB ATMOSPHERE
AGAIN.  WELL, THERE ISN'T GOING TO BE ANY COUNTRY CLUB ATMOSPHERE IN MY
COURT. 

MR. GLADSTEIN:  WHEN A MAN HEARS SOMETHING THAT IS LUDICROUS AND
ABSURD TO THE EXTREME I SUPPOSE HE IS PERMITTED THE HUMAN REACTION OF A
SMILE OF CONTEMPT. 

THE COURT:  THAT TO ME IS IN THE SAME LINE AS SOME OF THE COMMENTS WE
HAVE HAD IN THE PAST.  IT MAY SEEM VERY FUNNY TO THE DEFENDANTS.  THEY
SEEM TO ENJOY IT, BUT I DON'T THINK IT IS, AND THEIR LAUGHING IS NOT
GOING TO HAVE ANY EFFECT.  (P. 4805.) 

     *         *         *         *     * 

MR. GLADSTEIN:  THAT IS WHAT WE GET.  YOUR HONOR ASKED WHY PEOPLE ARE
SMILING, BUT THERE IS AN IRONY TO IT. 

THE COURT:  I HAD OCCASION TO PUT A STOP TO SOME OF THAT BEFORE.  I
AM FAMILIAR WITH THE PRACTICE IN CRIMINAL CASES OF TRYING TO LAUGH
SOMETHING OFF, AND I AM NOT GOING TO HAVE ANYTHING BUT ORDER IN MY
COURT.  WHEN THE DEFENDANTS GET HILARIOUS AND START LAUGHING AND
SMILING AND THAT SORT OF THING IT IS GOING TO BE STOPPED.  YOU CAN PUT
THAT IN YOUR BOOK.  (IBID.) 

     *      *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XVII - P. 4807; APRIL 22, 1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XVIII - PP. 4829-4834, 4860-4861;
APRIL 22, 1949.) 

     *         *         *         *         * 

MR. ISSERMAN:  IF THE COURT PLEASE, I WOULD LIKE TO ASK THE COURT TO
TAKE JUDICIAL NOTICE OF THE FACT THAT THE MAN HAYM SOLOMON IS DEAD SOME
SEVERAL YEARS.  HE WAS A FIGURE IN THE AMERICAN REVOLUTION. 

THE COURT:  THIS IS THE FIRST TIME I EVER HAVE BECOME ACQUAINTED WITH
THE GENTLEMAN.  I DON'T SEE WHAT THAT HAS GOT TO DO WITH IT.  YOU
COMMUNISTS HAVE A WAY OF TAKING ALL KINDS OF NAMES. 

MR. SACHER:  I OBJECT TO THAT REMARK AND ASK YOUR HONOR TO STRIKE
THAT REMARK AND TO DIRECT THE JURY TO DISREGARD IT.    THE COURT:  I
WILL DENY THE MOTION. 

MR. GLADSTEIN:  I WISH TO SAY THAT THE REMARK WAS INTENDED TO BE
DEROGATORY TO THE DEFENDANTS AND IT COULDN'T HAVE BEEN INTENDED ANY
OTHER WAY.  I OBJECT TO IT. 

THE COURT; YOU HAVE DONE A LOT OF  ...  . 

MR. GLADSTEIN:  I WOULD LIKE AN OBJECTION RATHER THAN AN INVITATION
TO ENGAGE IN REPARTEE. 

THE COURT:  WHAT IS THE OBJECTION THAT YOU WANT ME TO RULE ON? 

MR. GLADSTEIN:  THE OBJECTION IS THAT YOUR HONOR MADE A REMARK WHICH
IS INAPPROPRIATE, IMPROPER FOR A JUDGE SITTING IN A TRIAL TO MAKE
BECAUSE IT WAS INTENDED TO CONVEY SOME KIND OF SLUR AGAINST THE
DEFENDANTS. 

THE COURT:  WELL, YOU SEE IT IS THE OLD STORY.  MR. ISSERMAN GETS UP
AND HAS HIS SAY AND IF I REMAIN QUIET AND LET YOU SPREAD EAGLE ALL OVER
THE PLACE EVERYTHING IS FINE.  BUT THE MINUTE I SAY SOMETHING IT IS
JUDICIAL MISCONDUCT.  I THOUGHT THE STATEMENT I MADE WAS WELL BORNE OUT
BY THE RECORD, YOU HAVE OBJECTED TO IT, AND THERE IT IS.  NOW THAT'S
THAT.  (PP.  4956-4957.) 

     *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XIX - PP. 4968-4970; APRIL 25,
1949.) 

     *         *         *         *         * 

MR. GLADSTEIN:  YOUR HONOR, MAY I CORRECT ONE STATEMENT THAT I THINK
THE COURT MADE INADVERTENTLY? 

THE COURT:  YOU MAY CORRECT ANY STATEMENT THAT YOU MADE.  I THINK YOU
HAD BETTER LEAVE ME ALONE FOR THE TIME BEING.  (P. 4970.) 

     *         *      *         *         * 

THE COURT:  YES, I AM NOW PROCEEDING TO READ. 

MR. CROCKETT:  I AM VERY GLAD TO NOTICE THAT, YOUR HONOR. 

THE COURT:  WHAT DO YOU MEAN BY THAT, MR. CROCKETT? 

MR. CROCKETT:  I TAKE IT YOU SAID IT FOR MY BENEFIT.  YOU LOOKED
DIRECTLY AT ME AND I WANTED YOU TO KNOW THAT I HAD HEARD IT. 

THE COURT:  WELL, I DID NOT LOOK DIRECTLY AT YOU AND I DID NOT MEAN
THAT FOR YOU BUT FOR ALL OF THE COUNSEL FOR THE DEFENDANTS, WHO SEEM TO
BE SEDULOUSLY WATCHING AND CLOCKING THE TIME I USE LOOKING AT PAPERS
AND THINGS OF THAT KIND. 

INCIDENTALLY, I CONSIDER THAT AN IMPERTINENCE. 

IT MAY BE ASSUMED, WHEN I AM LOOKING AT PAPERS, AND I RULE ON THEM,
THAT I READ THEM, WITHOUT HAVING COUNSEL MAKE REMARKS OF THAT
CHARACTER.  (PP. 5132-5133.) 

     *         *         *         *         * 

MR. GORDON:  MR. SACHER THINKS THAT THIS IS VERY FUNNY. 

MR. SACHER:  I DO. 

THE COURT:  HE IS A GREAT FELLOW.  THERE IS NO QUESTION HE CAN GIVE
MORE INDICATION OF WHAT HE THINKS ABOUT BY TITTERING AND LAUGHING AND
GIGGLING. 

MR. SACHER:  I MOVE THAT THAT BE STRICKEN ON THE GROUND IT IS UTTERLY
UNWARRANTED AND NOT FOUNDED ON THE RECORD AND SOLELY AS A DIVERSION. 

THE COURT:  I TAKE IT THAT THAT IS INTENDED TO BE ANOTHER IMPUTATION
ON MY MOTIVES, MR. SACHER.  YOU ARE PILING UP QUITE A RECORD FOR
YOURSELF IN THIS CASE.  (P. 5256.) 

   *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XX - P. 5302; MAY 2, 1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXI - P. 5526; MAY 4, 1949.) 

  *         *         *         *         * 

MR. GLADSTEIN:  THE STATEMENT THAT YOUR HONOR MADE AND THE
IMPLICATION AND INNUENDO THAT IT CARRIED. 

THE COURT:  I HAVEN'T THE REMOTEST IDEA WHAT YOU ARE TALKING ABOUT. 

MR. GLADSTEIN:  I WILL BE VERY HAPPY TO TELL YOU. 

THE COURT:  GO AHEAD. 

MR. GLADSTEIN:  ONE OF THE ATTORNEYS ROSE TO ASK A QUESTION OF THE
COURT AND YOUR HONOR DISTORTED THAT QUESTION BY ASKING ANOTHER
QUESTION, THE PURPOSE OF WHICH WAS TO CONVEY AN IMPLICATION THAT THE
QUESTION OF THE ATTORNEY WAS IMPROPER, THAT THE ATTORNEY WAS INDEED
IMPLIEDLY STATING SOMETHING THAT REFLECTED ON THE COURT'S MOTIVES AND
THE COURT SEIZED THAT OPPORTUNITY TO MAKE THAT KIND OF INNUENDO. 

THE COURT:  PRETTY INGENIOUS. 

MR. GLADSTEIN:  IT WAS; BUT NOT MINE. 

THE COURT:  YOU ARE TRYING TO THROW SOME MORE IMPUTATIONS ON MY
MOTIVES AND SHOWING WHAT I THOUGHT IN THE FIRST PLACE WAS EVIDENTLY NOT
WELL JUSTIFIED.  (P. 5700.) 

     *         *         *         *         * 

MR. GLADSTEIN:  YOUR HONOR, MY ASSIGNMENT OF MISCONDUCT WAS AT THE
REMARKS OF THE COURT, AND I THEREFORE SUBMIT IT WAS IMPROPER FOR THE
COURT IN MAKING - IN GIVING ANY INSTRUCTIONS TO THE JURY ON THAT
SUBJECT, TO DO SO IN THE MANNER THAT YOUR HONOR JUST DID, AND I ASSIGN
THEREFORE YOUR REMARKS AS MISCONDUCT. 

THE COURT:  WELL, I MUST BE VERY BAD, ALL THESE MISCONDUCTS THAT YOU
HAVE CHARGED, AND I MUST SAY IT IS VERY SAD.  (P. 5794.) 

     *         *         *         *         * 

THE COURT:  NO, YOU MAY NOT HAVE THEM MARKED.  THEY MAY BE SUBMITTED
AT SOME LATER TIME IF YOU DESIRE, BUT I AM NOT GOING TO HAVE THEM
SUBMITTED NOW FOR PUBLICITY PURPOSES. 

MR. SACHER:  I OBJECT TO THAT STATEMENT.  THESE ARE NOT PUT IN FOR
PUBLICITY PURPOSES.  THIS IS PUT IN TO PROTECT THE RIGHTS OF THE
DEFENDANTS.  I THINK THAT IS AN IMPROPER REMARK. 

THE COURT:  THAT CAN ALL BE DONE WITHOUT HAVING ALL THIS IN THE
RECORD NOW.  THAT IS MY RULING FOR THE PRESENT.  LATER THEY MAY BE
PROPERLY IDENTIFIED.  I HAVE HAD EXPERIENCE WITH A LOT OF PRIOR THINGS
THAT SURPRISED ME. 

MR. SACHER:  I OBJECT TO THAT REMARK. 

THE COURT:  YOU MAY OBJECT YOUR HEAD OFF. 

MR. SACHER:  I OBJECT TO THAT ONE TOO.  IT IS HIGHLY PREJUDICIAL TO
THE INTERESTS OF ALL THE DEFENDANTS AND I THINK IT IS NOT OBSERVANT OF
THE DUE DECORUM OF A COURTROOM TO MAKE THESE REFERENCES, YOUR HONOR. 

THE COURT:  YES, THAT IS ALL RIGHT.  (P. 6116.) 

     *        *         *         *         * 

MR. SACHER:  I OBJECT TO THIS, YOUR HONOR  ...  . 

THE COURT:  OVERRULED.  MR. SACHER, I WILL NOT HEAR FROM YOU
FURTHER. 

MR. SACHER:  ... UNLESS THE TIME AND PLACE ARE FIXED, YOUR HONOR. 

THE COURT:  OVERRULED.  YOU NEEDN'T SMILE AND SNEER AT ME THAT WAY
EITHER. 

MR. SACHER:  I WISH TO STATE THAT I DID NOT SNEER OR SMILE. 

THE COURT:  I AM NOT GOING TO HAVE ANY MORE OF THAT THAN I CAN HELP,
I WILL TELL YOU THAT.  (P. 6118.) 

     *      *         *         *         * 

DEFENDANT DENNIS:  IS YOUR HONOR TRYING TO INTIMIDATE THE DEFENSE AND
COUNSEL FOR THE DEFENSE? 

THE COURT:  I AM AFRAID I AM NOT VERY GOOD AT INTIMIDATION, BUT I
HAVE HAD A LOT OF IT TRIED ON ME IN THIS CASE.  (P. 6130.) 

     *         *         *         *  * 

(CONDUCT INVOLVED IN SPECIFICATION XXII - PP. 6262-6268; MAY 19,
1949.) 

     *         *         *         *     * 

DEFENDANT DENNIS:  YES.  I WOULD LIKE TO PRESENT MY POINT OF VIEW
HERE. 

THE COURT:  WHEN YOU BEGIN TALKING ABOUT A MOCKERY OF JUSTICE AND ALL
THAT, YOU KNOW, YOU CANNOT EXPECT ME TO SIT HERE LIKE A BUMP ON A LOG
AND HEAR YOU CALL ME NAMES WITHOUT SAYING ANYTHING.  I DON'T LIKE TO DO
THAT. 

YOU GO AHEAD NOW AND CALL ME SOME MORE NAMES.  (P. 6264.) 

     *         *         *         *         * 

MR. GLADSTEIN:  ...  AND I WOULD SAY THAT YOUR HONOR SHOULD CONSIDER
IN DETERMINING THE APPLICATION OF THE LAW THAT MR. CROCKETT HAS CITED
TO THIS QUESTION THE STATEMENT THAT THIS COURT MADE IN THE COURSE OF
THIS TRIAL ON THIS VERY QUESTION.  UNWITTINGLY YOUR HONOR HAS PERHAPS
MADE A SINGULAR CONTRIBUTION TO JURISPRUDENCE. 

THE COURT:  THANK YOU FOR THAT "UNWITTINGLY."  YOU REALLY ARE
SOMETHING, MR. GLADSTEIN.  (P. 6331.) 

     *         *  *         *         * 

THE COURT:  MR. SACHER, I HAVE BEEN IN A GREAT MANY CRIMINAL CASES. 
I HAVE NEVER BEEN IN ONE - AND I HAVE BEEN IN MANY THAT WERE VERY
IMPORTANT, TOO - WHERE SO MUCH TIME WAS TAKEN BY COUNSEL ON ARGUMENTS
ON A MOTION TO DISMISS AT THE CLOSE OF THE GOVERNMENT'S CASE - NEVER
ONE THAT EVEN APPROXIMATED THE TIME TAKEN HERE.  OF COURSE, IF YOU
WOULD ASSUME, AS YOU GENTLEMEN ALL APPEAR TO, THAT THE JUDGE JUST SITS
AS AN AUTOMATON AND DOES NOT HEAR ALL THIS, OR NOTICE ANYTHING, OR
STUDY THE MATTER AT ALL, OR LOOK UP ANY LAW, AND THAT THEN HE COMES TO
THE CLOSE OF THE GOVERNMENT'S CASE WHOLLY UNINFORMED AS TO THE LAW AND
AS TO THE FACTS, THEN PERHAPS FURTHER ARGUMENT MIGHT BE NEEDED, BUT I
HAVE GIVEN THIS CASE THE CLOSEST ATTENTION; I HAVE STUDIED IT FROM
EARLY MORNING UNTIL LATE AT NIGHT.  I HAVE STUDIED EVERY AUTHORITY I
COULD LAY MY HANDS ON, AND I FEEL THAT THE AMOUNT OF ARGUMENT THAT I
HAVE PERMITTED HERE HAS BEEN MORE THAN ADEQUATE. 

MR. SACHER:  MAY I SAY THIS TO YOUR HONOR, THAT I THINK THAT YOUR
HONOR'S STATEMENTS SIMPLY MEAN THAT ADVOCACY NO LONGER HAS A PLACE IN
OUR COURTS. 

THE COURT:  WELL, YOU HAVE TOLD ME THAT, AND MR. GLADSTEIN IN HIS
PLEASANT WAY HAS MADE IT EVEN MORE PLAIN; BUT, OF COURSE, I KNOW WHAT
IS DONE IN CASES GENERALLY.  WHEN THE JUDGE FEELS THAT HE DOESN'T
REQUIRE ANY MORE ARGUMENT HE SAYS SO, AND COUNSEL ORDINARILY
ACQUIESCE.  IN THIS CASE, OF COURSE, IT IS DIFFERENT  ...  . 

MR. SACHER:  I SHOULD LIKE  ...  . 

THE COURT:  BUT I HAVE TO DO THE BEST I CAN TO KEEP THINGS GOING AS
WELL AS I CAN, WITH MAKING RULINGS THAT I DEEM PROPER ONES, AND I DON'T
INTEND TO BE BLACKJACKED BY ANY FORM OR METHOD INTO DOING ANYTHING THAT
I DON'T THINK IS RIGHT.  (PP. 6343-6344.) 

     *       *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XXIII - PP. 6401-6402; MAY 24,
1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXIV - PP. 6520-6522; MAY 25,
1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXV - P. 6565; MAY 26, 1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXVI - P. 6761; JUNE 2, 1949.) 

     *         *         *         *    * 

MR. SACHER:  MAY I POINT OUT, YOUR HONOR, THAT I HAVE USED THE EXACT
WORDS OF A QUESTION THAT YOU YOURSELF PUT TO THE WITNESS BUDENZ? 

MR. GLADSTEIN:  IF THE COURT DOESN'T DESIRE TO ANSWER MR. SACHER'S
QUESTION I WOULD LIKE TO ASK THE COURT A QUESTION.  IS IT TO BE THE
RULE, YOUR HONOR, THAT THE JURY IS TO HEAR ONLY FROM THE GOVERNMENT
WITNESSES AS TO WHAT THEY UNDERSTOOD DOCUMENTS OR TEACHINGS TO MEAN, OR
ARE THE DEFENDANTS TO BE ALLOWED TO GIVE THEIR STATE OF MIND, THEIR
BELIEFS AND THEIR INTENTIONS? 

THE COURT:  I THINK I SEE WHAT YOU ARE UP TO.  YOU HAVE HAD A GOOD
REST, AND YOU ARE RIGHT BACK HERE BECAUSE OF THAT. 

MR. GLADSTEIN:  I ASSIGN THOSE REMARKS AS IMPROPER, UNWARRANTED AND
MISCONDUCT. 

THE COURT:  THAT IS ALL RIGHT.  (P. 6765.) 

     *         *         *         *      * 

THE COURT:  I SEE YOU CAME BACK AFTER A LONG REST DETERMINED TO BE
PROVOCATIVE. 

MR. GLADSTEIN:  I HAD NO REST.  I WAS WORKING ON THIS CASE. 

THE COURT:  YOU CAN BE JUST AS PROVOCATIVE, YOU CAN BE JUST AS UNRULY
AS YOU CHOOSE.  YOU KNOW, YOU HAVE TRIED IT SO OFTEN AND FOUND THAT IT
IS UNAVAILING.  NOW GO AHEAD AND DO AS YOU LIKE.  (P. 6791.) 

     *     *         *         *         * 

MR. GLADSTEIN:  THAT IS OBJECTED TO. 

THE COURT:  OBJECT AWAY.  THERE IS NO JURY PRESENT. 

MR. GLADSTEIN:  I ASSIGN THAT AS JUDICIAL MISCONDUCT.  I OBJECT VERY
SERIOUSLY AND I ASSIGN IT AS PREJUDICE AND BIAS OF THE COURT. 

THE COURT:  YOU DID REFUSE TO ANSWER QUESTIONS WHEN I PUT THEM TO YOU
AND YOUR COLLEAGUES AGAIN AND AGAIN.  WHAT IS THE USE OF MAKING OUT YOU
DIDN'T DO IT? 

MR. GLADSTEIN:  AND I ASSIGN THOSE REMARKS AS EVIDENCE OF THE
PREJUDICE OF THE COURT. 

THE COURT:  YOU HEAR YOUR OWN VOICE AND YOU THINK BECAUSE YOU SAY
SOMETHING THAT MAKES IT SO.  YOU HAVE BEEN DOING IT HERE FOR MONTHS. 
NOW GO AHEAD, MR. CROCKETT.  LET'S SEE WHAT THE REST OF YOUR ARGUMENT
IS.  (PP. 6815-6816.) 

  *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XXVII - PP. 6845-6847; JUNE 3,
1949.) 

     *         *         *         *         * 

MR. MCCABE:  ...  I SAY THAT THE REASON COUNSEL - I AM SPEAKING FOR
MYSELF NOW - THE REASON THAT I HAVE PERHAPS NOT MADE SIMILAR UTTERANCES
IS SIMPLY BECAUSE OF MY GREATER TRAINING TO RESTRAIN MYSELF UNDER GREAT
PROVOCATION. 

THE COURT:  WELL, YOU HAVE BEEN IMPUDENT ENOUGH TO ME ON NUMEROUS
OCCASIONS, AND WERE IT NOT FOR THE FACT THAT I HAVE DETERMINED THAT
THIS TRIAL SHALL NOT BE DISRUPTED BY SUCH THINGS I SHOULD HAVE TAKEN
ACTION AGAINST YOU AND AGAINST EACH OF YOUR COLLEAGUES LONG BEFORE
THIS, BUT I SHALL NOT DO IT.  I SHALL LEAVE THAT TO THE PROPER
AUTHORITIES TO TAKE CARE OF IN DUE COURSE, AND THERE IT SHALL REST, BUT
YOU NEED BE UNDER NO MISAPPREHENSION; I HAVE BEEN QUITE FULLY COGNIZANT
OF YOUR CONTEMPTUOUS CONDUCT AND YOUR IMPUDENCE. 

DEFENDANT WINTER:  YOUR HONOR, MAY I  ...  . 

MR. MCCABE:  I DENY THE IMPUTATION OF IMPUDENCE OR MISCONDUCT.  I AM
PERFECTLY WILLING TO ANSWER TO ANY PROPER BODY FOR ANY ACTIONS OF MINE
IN THIS COURTROOM OR OUT. 

THE COURT:  DO YOU REMEMBER, MR. MCCABE, THE DATE WHEN YOU ACCUSED ME
OF DOING CERTAIN THINGS JUST SO THAT THE REPORTERS COULD MEET THE
DEADLINE FOR THE PRESS?  DO YOU REMEMBER THAT OCCASION? 

MR. MCCABE:  YES, I RECALL IT QUITE WELL. 

THE COURT:  YOU THOUGHT WHAT YOU SAID THEN WAS ENTIRELY PROPER, NO
DOUBT. 

MR. MCCABE:  I THOUGHT IT WAS ACCURATE. 

THE COURT:  WELL, YES, I THOUGHT IT WAS CONTEMPTUOUS.  NOW I JUST
MENTION THAT SO THAT YOU MAY NOT SUPPOSE THAT I AM NOT AWARE OF THE
PRECISE INCIDENTS THAT I SPEAK OF.  (PP. 6848-6849.) 

     *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XXVIII - PP. 6936-3937; JUNE 7,
1949.) 

     *         *         *         *   * 

MR. SACHER:  I AM OFFENDED ON THESE CONSTANT ASPERSIONS ON THE
VERACITY OF REPRESENTATIONS THAT I MAKE.  I AM AN OFFICER OF THIS COURT
AND I RESENT THESE  ...  . 

THE COURT:  THERE WAS AN INSTANCE WHEN YOU DELIBERATELY LIED TO ME
WHEN THEY WERE PASSING THESE PRESS RELEASES.  YOU SAID THAT THEY WERE
NOT AND YOU WERE CAUGHT RED-HANDED.  (FN3)    MR. SACHER:  THAT IS THE
MOST OFFENSIVE CHARGE THAT CAN BE MADE AGAINST AN OFFICER OF THE
COURT.  YOUR HONOR KNEW THAT THAT WAS HAPPENING IN THE BACK PART OF THE
COURTROOM AND I WAS UNABLE TO SEE THAT.  THAT IS ONE OF THE MOST
OFFENSIVE THINGS YOU CAN DO TO A LAWYER.  WHAT HAS A LAWYER GOT BUT HIS
HONOR. 

THE COURT:  THAT IS THE FIRST THING YOU DID AND YOU WERE CAUGHT RED
HANDED. 

MR. SACHER:  THAT IS THE MOST DETESTABLE THING I EVER HEARD FROM A
JUDGE.  I RESENT THAT AND I URGE THAT IT BE EXPUNGED FROM THE RECORD. 

THE COURT:  YOU ASKED ME WHY I WOULDN'T TAKE YOUR WORD FOR ANYTHING
AND I TOLD YOU.  I MIGHT ENUMERATE OTHER INCIDENTS WERE I SO INCLINED. 
YOU CAN GET JUST AS VIOLENT AS YOU WANT; THE FACT IS I DO NOT TAKE YOUR
WORD FOR ANYTHING. 

MR. SACHER:  I WILL DEFEND MY HONOR AS A MEMBER OF THE BAR AGAINST
YOUR HONOR OR ANYBODY ELSE.  I WILL NOT ACCEPT A DENUNCIATION THAT I AM
A LIAR.  WHEN THE TIME COMES THAT I DON'T HAVE THE MENTAL CAPACITY TO
DEFEND MY CLIENTS ON ANY OTHER BASIS THAN LYING I WILL RESIGN FROM THE
BAR.  I THINK AN IDIOT RESORTS TO LYING.  I DON'T HAVE TO DO IT. 

THE COURT:  YOU DID IT. 

WE BETTER LET THESE LITTLE AMENITIES GO.  I CAN SEE FROM YOUR
BELLIGERENT MANNER IF YOU THOUGHT YOU COULD, YOU MIGHT PHYSICALLY COME
UP TO THE BENCH AND PHYSICALLY ATTACK ME.  I KNOW YOUR MANNER, AND IT
DOESN'T FRIGHTEN ME IN THE SLIGHTEST DEGREE.  LET'S GO BACK TO WHAT WE
WERE DOING.  (P. 7029.) 

  *         *         *         *         * 

THE COURT: I HAVE A VERY DEFINITE OPINION OF YOU, TOO, MR. CROCKETT. 

MR. CROCKETT:  BUT I AM NOT SPEAKING ABOUT MR. CROCKETT. 

THE COURT:  BUT I SHALL NOT EXPRESS IT BECAUSE I SEE NO OCCASION TO
DO IT.  I SHOULD NOT HAVE DONE IT TO MR. SACHER, HAD HE NOT ASKED ME. 

MR. CROCKETT:  I AM NOT SPEAKING ABOUT MR. CROCKETT, AND I AM FULLY
AWARE THAT YOU PROBABLY DO HAVE A VERY DEFINITE OPINION AS TO MR.
CROCKETT. 

THE COURT:  WHY, I HAVE NEVER BEEN SO INSULTED AND BAITED, NOR HAVE I
EVER HEARD OF ANY OTHER JUDGE BEING SO INSULTED AND BAITED, DURING THE
TRIAL AS I HAVE BY YOU LAWYERS REPRESENTING THE DEFENDANTS HERE IN THIS
CASE FROM THE 17TH OF JANUARY ON, AND I WILL MAKE NO BONES ABOUT IT.
THAT IS WHAT HAS BEEN GOING ON, AND I HAVE TOLERATED IT BECAUSE OF THE
REASONS I HAVE INDICATED, BUT MAKE NO MISUNDERSTANDING AS TO WHAT I
THINK ABOUT IT.  (PP.  7030-7031.) 

     *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XXIX - PP. 7086-7087; JUNE 9,
1949.) 

*         *         *         *         * 

THE COURT:  I SEE MR. SACHER SMILING. 

MR. SACHER:  YOUR HONOR TAKES AWFULLY GOOD NOTICE ABOUT MY FACIAL
EXPRESSIONS, BUT WHEN MR. GLADSTEIN SPOKE ABOUT MR. GORDON JUMPING UP
LIKE A POPPINJAY YOU SAW NOTHING. 

THE COURT:  WELL, YOU DID SEEM PLEASED.  NOW YOU SEEM DIFFERENT. 

MR. SACHER:  WE ARE UNDER SURVEILLANCE BUT YOU NEVER SEE ANYTHING
THAT THE PROSECUTION DOES. 

THE COURT:  THAT IS WHAT YOU SAY.  IT MAY BE BECAUSE THERE IS NOTHING
DONE BY THE PROSECUTION TO MAKE IT NECESSARY FOR COMMENT. 

I TOLD YOU SOME LITTLE TIME AGO THAT I WASN'T GOING TO PERMIT YOU OR
THE OTHER LAWYERS TO GET AWAY WITH ANYTHING WHILE I WAS PRESIDING HERE
AND I SHALL NOT.  (P. 7094.) 

     *         *       *         *         * 

THE COURT:  I WISH YOU WOULD STOP TALKING ABOUT MY NODDING MY HEAD,
SCRATCHING MY HEAD AND PULLING MY EARS.  WHY DON'T YOU LEAVE THAT ALL
OUT?  WHAT GOOD DOES THAT DO. 

MR. ISSERMAN:  WELL, WHETHER YOUR HONOR  ...  . 

MR. CROCKETT:  PARDON ME ONE MINUTE.  I THINK IT IS VERY IMPORTANT
BECAUSE THERE ARE SOME THINGS THAT ARE NOT MADE A MATTER OF RECORD ON
THE COURT  ...  . 

THE COURT:  YOU HAVEN'T MISSED ANY OF THEM. 

MR. CROCKETT:  ...  SO FAR AS THE TRANSCRIPT IS CONCERNED.  VERY
FREQUENTLY I NOTICE IN THE COURSE OF TESTIMONY YOUR HONOR MAKES
FREQUENT GLANCES OVER TOWARD THE JURY OR SOME FACIAL EXPRESSION THAT
GIVES THE IMPRESSION, TO ME AT LEAST, THAT THE COURT  ...  . 

THE COURT:  WELL, IT IS FUNNY  ...  . 

MR. CROCKETT:  PARDON ME.  I THINK THAT WHENEVER IT IS SO OBVIOUS, AS
IT WAS A WHILE AGO, SOME MENTION OF IT SHOULD BE MADE SO THAT IT WILL
BE CARRIED IN THE RECORD. 

THE COURT:  IF THERE IS SOMETHING ABOUT MY WINKING AT THE JURY OR
SOMETHING OF THAT KIND, I AM SURPRISED THAT YOU DID NOT MENTION IT AT
THE TIME. 

MR. CROCKETT:  NO, I HAVE NOT NOTICED A WINKING YET.  IF I HAD I
WOULD HAVE MENTIONED IT. 

THE COURT:  WELL, THERE ISN'T MUCH THAT YOU HAVE MISSED, BUT YOU MAY
JUST AS WELL GO AHEAD AND GET IT ALL DOWN AND OUT OF YOUR SYSTEM.  I
DENY THAT I HAVE EVER DONE ANYTHING OF THE KIND.  I WOULDN'T STOOP TO
SUCH A THING, AND I DO NOT SEE HOW YOU LAWYERS HAVE THE EFFRONTERY TO
KEEP SAYING SO.  (PP. 7269-7270.) 

     *    *         *         *         * 

MR. GLADSTEIN:  NOW YOUR HONOR HAS SAID THAT IF THIS EXHIBIT WERE
RECEIVED IT WOULD BE UNPRECEDENTED.  NOW FIRST OF ALL I THINK THAT THAT
WOULDN'T BE AN OBSTACLE BECAUSE A NUMBER OF UNPRECEDENTED THINGS HAVE
ALREADY OCCURRED COMMENCING WITH THE RETURNING OF THE INDICTMENT. 

THE COURT:  HA HA, YOU KNOW I EXPECTED YOU WERE GOING TO DO THAT. 

MR. GLADSTEIN:  I CAN'T OVERLOOK THE OPPORTUNITY NOR THE NECESSITY TO
REPLY TO YOUR HONOR. 

THE COURT:  ALL RIGHT. 

MR. GLADSTEIN:  THIS IS AN UNPRECEDENTED CASE.  IT PRESENTS
UNPRECEDENTED ISSUES.  IT HAS BEEN HANDLED IN AN UNPRECEDENTED WAY. 

THE COURT:  I'LL SAY IT HAS.  (P. 7670.) 

*         *         *         *         * 

MR. GLADSTEIN:  MAY I SAY ONE WORD? 

THE COURT:  IF YOU EVER DID THAT, MR. GLADSTEIN, I THINK I WOULD DROP
DEAD. 

MR. GLADSTEIN:  WHEN I SAY ONE WORD, I MEAN IT IN A LAWYER'S SENSE. 

THE COURT:  ALL RIGHT.  (P. 7676.) 

     *         *         *         *         * 

THE COURT:  WELL, YOU ACCUSE ME OF BEING AN OLD TYRANT AND EVERYTHING
UNDER THE SUN, ACCUSE ME OF JUDICIAL MISCONDUCT OF VARIOUS KINDS, AND I
TAKE THAT IN GOOD TEMPER, AND YOU SPEAK ABOUT NOT HAVING A CHANCE TO
PROVE YOUR CASE.  YOU HAD HAD AMPLE CHANCE TO PROVE YOUR CASE AND
ANYBODY WHO READS THIS RECORD CAN SEE THAT YOU HAVE HAD.  SO THERE IS
NO NEED OF YOUR SAYING HOW I CUT YOU OUT AND HOW I WON'T TAKE THE
NECESSARY TIME.  I AM GOING TO TAKE THE NECESSARY TIME BUT I AM GOING
TO BE THE ONE TO DECIDE WHAT IS NECESSARY.  (P. 7929.) 

     *        *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XXX - P. 8045; JUNE 30, 1949.) 

     *     *         *         *         * 

THE COURT:  MR. SACHER, YOU CANNOT LAUGH THESE THINGS OFF. 

MR. SACHER:  I AM NOT LAUGHING ANYTHING OFF. 

THE COURT:  YOU MUST HAVE LAUGHED AT SOMETHING, AND IT IS VERY
OFFENSIVE TO ME. 

MR. SACHER:  IT IS SO OBVIOUSLY UNRELATED TO THE CASE, I CANNOT
IMAGINE WHY IT IS BEING ASKED. 

THE COURT:  WELL, I CAN IMAGINE, AND I IMAGINE THERE ARE OTHERS WHO
CAN TOO, AND I THINK, PERHAPS, THAT IS THE REASON YOU ARE LAUGHING  ...
. 

MR. SACHER:  NO, THAT IS NOT THE REASON AT ALL. 

THE COURT:  ...  LAUGHING IT OFF. 

MR. SACHER:  THAT IS NOT THE REASON I AM LAUGHING. 

THE COURT:  YOU SHOULD STOP. 

MR. SACHER:  AND I SHOULD SAY THAT I HAVEN'T BEEN LAUGHING. 

THE COURT:  YOU SHOULD HAVE THOUGHT OF THAT FIRST.  (P. 9167.) 

     *         *         *         *         * 

MR. SACHER:  IT USED TO BE DONE TO ME ON CROSS-EXAMINATION. 

THE COURT:  WHAT USED TO BE DONE TO YOU? 

MR. SACHER:  THIS BUSINESS OF POINTING OUT THAT A QUESTION WAS NOT IN
THE PRECISE WORDS OF THE PRECEDING QUESTION. 

THE COURT:  I RECALL NOTHING OF THAT KIND.  I TAKE IT THAT IS ANOTHER
ONE OF YOUR OFFENSIVE COMMENTS ATTEMPTING TO MAKE IT APPEAR THAT I AM
PARTIAL TO THE GOVERNMENT  ...  .  (P. 9185.) 

     *         *         *         *         * 

MR. SACHER:  BUT IT IS CONTRADICTORY.  IT SPEAKS OF A RULE AND IT
SPEAKS OF "SOMETIMES."  NOW WHICH IS IT?  IS IT SOMETIMES OR IS IT A
GENERAL RULE? 

MR. MCGOHEY:  I WILL WITHDRAW THE QUESTION AND REFRAME IT, YOUR
HONOR, SO THAT WE CAN SAVE THE ARGUMENT AND GET ON. 

THE COURT:  I WISH TO STATE ON THE RECORD THAT I AM PHYSICALLY AND
MENTALLY INCAPABLE OF GOING THROUGH VERY MUCH MORE OF THIS WRANGLING
AND ARGUMENT AND I SHALL HAVE TO DO SOMETHING ABOUT IT IF IT IS
CONTINUED AND COUNSEL REFUSE TO OBEY MY ADMONITION.  IT IS MORE THAN
ANY HUMAN BEING CAN STAND.  (P. 9220.) 

     *         *         *         *         * 

MR. ISSERMAN:  IF THE COURT PLEASE, MAY I BE HEARD FOR A MOMENT? 

THE COURT:  I SUPPOSE MY MENTIONING MY STATE OF FATIGUE HAS MERELY
SERVED AS A SPUR TO ADDITIONAL ARGUMENT THIS MORNING.  (P. 9224.) 

     *         *         *         *  * 

DEFENDANT DENNIS:  ...  IN VIEW OF THE BIASED AND PREJUDICIAL
RULINGS, RESTRICTING THE  ...  . 

THE COURT:  YOU MEAN BIAS OF MINE? 

DEFENDANT DENNIS:  BIASED, AS I UNDERSTOOD THEM, YOUR HONOR. 

THE COURT:  I SAY, BUT YOU MEAN BIAS BY ME?  DO YOU SAY THAT? 

DEFENDANT DENNIS:  ON THE PART OF THE COURT. 

THE COURT:  THAT IS WHAT I THOUGHT.  I THOUGHT IT MIGHT BE WELL TO
HAVE IT CLEAR WHAT YOU CLAIMED.   (P. 9344.) 

    *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XXXI - PP. 9376-9377, 9403-9405;
AUG. 1, 1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXXII - PP. 9533-9537, 9541-9543;
AUG. 3, 1949.) 

     *         *    *         *         * 

MR. SACHER:  ...  I DON'T WANT TO APPEAL TO YOU ON THE BASIS OF
SERVING MR. ISSERMAN'S COMFORT OR MR. GLADSTEIN'S OR MR. CROCKETT'S
...  . 

THE COURT:  OR THAT GOLF PLAYER, MR. MCCABE. 

MR. SACHER:  WELL, HE IS NOT A GOLF PLAYER.  I THINK YOU DO HIM AN
INJUSTICE. 

THE COURT:  IF HE HADN'T BEEN PLAYING GOLF FOR ABOUT A WEEK WHEN I
SAW HIM THE OTHER DAY, I MISS MY GUESS. 

MR. SACHER:  NO. I AM SURE IF YOU ARE NOT A GOLF ENTHUSIAST THEN YOU
ARE DOING HIM AN INJUSTICE; IF YOU ARE, THEN YOU ARE JUST ENVIOUS. 

THE COURT: WELL, TO TELL YOU THE HONEST TRUTH, THAT IS JUST PUTTING
THE FINGER RIGHT ON IT.  (P. 9688.) 

     *         *         *         *         * 

THE COURT:  YOU SEE, I HAVE MADE CERTAIN RULINGS IN THE LAST FEW DAYS
WHICH I FELT THE CIRCUMSTANCES COMPELLED ME TO MAKE AND WHICH HAVE LED
TO THE RULINGS THAT I AM NOW MAKING.  I AM DETERMINED TO SURVIVE THIS
CASE. 

MR. SACHER:  WELL, NO ONE HAS ANY PURPOSE THAT YOU SHOULDN'T, YOUR
HONOR. 

THE COURT:  AND IT IS VERY TRUE THAT THERE HAS BEEN AN EVOLUTION IN
MY RULINGS, AND NECESSARILY SO, AND ALTHOUGH ALL THE DEFENSE, INCLUDING
SOME OF THE DEFENDANTS AND ALL OF THE LAWYERS ARE CALLING ME ALL KINDS
OF NAMES, I WAS TRYING, ACCORDING TO MY LIGHTS, TO BE EXTREMELY
LIBERAL, AND I AM QUITE SURE THAT THE RECORD WILL SHOW THAT I WAS.  I
THEN FOUND THAT A LOT OF THESE MATTERS, SUCH AS THE ONE YOU SPEAK OF
NOW, SIMPLY HAD TO BE CUT OUT.  THEY HAVE NO BEARING ON THE CASE, AND
SO I HAVE HAD TO CHANGE THE CHARACTER OF MY RULINGS ON THE BASIS OF
PREVENTING CUMULATIVE EVIDENCE AND ON THE BASIS GENERALLY OF HAVING A
POWER THAT MUST EXIST TO TERMINATE A CASE WITHIN BOUNDS, SUCH AS TO BE
CONSISTENT WITH THE MAINTENANCE OF THE HEALTH OF THE JURORS AND THE
JUDGE AND EVERYBODY CONCERNED.  (P. 9689.) 

 *         *         *         *         * 

(CONDUCT INVOLVED IN SPECIFICATION XXXIII - P. 9731; AUG. 5, 1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXXIV - PP. 9886-9887; AUG. 10,
1949.) 

      *         *         *         *         * 

MR. CROCKETT:  I OBJECT, YOUR HONOR, UNLESS MR. GORDON IS SPECIFYING
SOME PARTICULAR CLASSIC BY SOME PARTICULAR AUTHOR. 

THE COURT:  I THINK HE WILL GET AROUND TO IT IN A MINUTE.  OVERRULED. 

MR. CROCKETT:  I THOUGHT WE WERE NOT HAVING THESE GENERAL QUESTIONS,
THOUGH. 

THE COURT:  WELL, YOU SEE, I GET THE IMPORT OF WHAT YOU SAY.  YOU ARE
JUST TRYING TO MAKE IT APPEAR, PERHAPS FOR THE BENEFIT OF THE
SPECTATORS, THAT I RULED ONE WAY THIS MORNING AS TO YOUR GENERAL
QUESTIONS AND THAT I AM SO PREJUDICED AND BIASED THAT I RULED JUST THE
OPPOSITE ON SIMILAR QUESTIONS PUT BY MR. GORDON.  NOW, YOU KNOW THERE
IS NOTHING IN THAT.  THESE QUESTIONS ARE PUT ON CROSS-EXAMINATION HERE
AND THEY ARE PERFECTLY PROPER, AND I SUGGEST THAT THOSE LITTLE IRONICAL
INSINUATIONS BE OMITTED.  (P. 10228.) 

     *   *         *         *         * 

MR. GLADSTEIN:  I OBJECT TO YOUR HONOR'S QUESTION. 

THE COURT:  OVERRULED. 

MR. GLADSTEIN:  ALSO TO THE MANNER IN WHICH YOUR HONOR ASKED THE
QUESTION. 

THE COURT:  THERE IS NOTHING ABOUT THE MANNER. 

MR. GLADSTEIN:  AND THE GESTURE THAT ACCOMPANIED IT. 

THE COURT:  I RAISED MY HAND AND YOU CRITICIZED ME A NUMBER OF TIMES
AND I SEE NO BASIS FOR SUCH CRITICISMS.  I AM GOING TO GET AT THIS  ...
. 

MR. GLADSTEIN:  NATURALLY YOUR HONOR SEES NO BASIS FOR CRITICISM BUT
AN ATTORNEY WHO REPRESENTS AND DEFENDS CLIENTS MAY HAVE A DIFFERENT
VIEW. 

THE COURT:  WHAT I OBJECT TO IS FALSE STATEMENTS OF THE THINGS THAT
ARE SAID TO BE DONE BY ME AND NOT DONE BY ME.  THAT IS WHAT I OBJECT TO
AND YOU AND YOUR COLLEAGUES HAVE FILLED THIS RECORD WITH STATEMENTS OF
THINGS I AM SUPPOSED TO HAVE DONE AND I NEVER DID.  EVERY TIME YOU
START THAT I AM GOING TO SEE THE RECORD IS KEPT STRAIGHT.  (PP. 10718
10719.) 

     *         *         *         *  * 

(CONDUCT INVOLVED IN SPECIFICATION XXXV - P. 10748; AUG. 26, 1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXXVI - PP. 10855-10856; AUG. 29,
1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXXVII - P. 11213; SEPT. 9,
1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXXVIII - PP. 11418-11421; SEPT.
14, 1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XXXIX - P. 11432; SEPT. 14,
1949.) 

(CONDUCT INVOLVED IN SPECIFICATION XL - PP. 12064-12065; OCT. 4,
1949.)  (FN4)    FN1  SINCE THE WHOLE CERTIFICATE OF CONTEMPT WAS
PUBLISHED AS AN APPENDIX TO THE OPINION IN THE COURT OF APPEALS AND IS
READILY AVAILABLE, 182 F.2D 416, 430-453, THERE IS HERE NOT REPRODUCED
ANY PART OF THE RECORD WHICH HAS ALREADY BEEN QUOTED ADEQUATELY IN THE
SPECIFICATIONS OF THE CERTIFICATE.  EACH SPECIFICATION SHOULD BE
EXAMINED IN CONNECTION WITH THIS APPENDIX, AT THE APPROPRIATE POINT
INDICATED HEREIN.  EACH SPECIFIED EPISODE INVOLVING CONTEMPTUOUS
CONDUCT SHOULD BE PLACED IN THE TRIAL SETTING AS SHOWN BY THE FURTHER
EXCERPTS REPRODUCED HERE FROM THE WHOLE RECORD. 

THE PAGE REFERENCES ARE TO THE PRINTED RECORD BEFORE THIS COURT IN
DENNIS V. UNITED STATES, 341 U.S. 494.  FN2  SINCE SPECIFICATION I
CHARGED GENERALLY "A WILFUL, DELIBERATE, AND CONCERTED EFFORT TO DELAY
AND OBSTRUCT THE TRIAL," SPECIFICATION II CHARGES THE FIRST SPECIFIC
ACT OF CONTEMPT IN THE PRINCIPAL TRIAL.  SEE 182 F.2D AT 431-432.  THE
PORTIONS OF THE TRIAL RECORD REPRODUCED IN THE SPECIFICATIONS OF THE
CONTEMPT CERTIFICATE GIVE, BECAUSE OF THEIR BREVITY, ONLY A MUTILATED
PICTURE OF THE TRIAL.  THE PLACES IN THE RECORD WHERE THE ALLEGED
CONTEMPTS OCCURRED ARE INDICATED IN ORDER THAT EACH INCIDENT OF
CONTEMPT MAY BE VIEWED IN RELATION TO THE RECORD EXCERPTS SET FORTH
HERE. 

FN3  THE INCIDENT REFERRED TO BY THE JUDGE - REPORTED AT PAGES 4228
4229 OF THE RECORD - WAS THE BASIS FOR HIS SPECIFICATION XV.  THE
CONVICTION OF SACHER ON THAT SPECIFICATION WAS UNANIMOUSLY REVERSED BY
THE COURT OF APPEALS BECAUSE THAT COURT DID NOT THINK IT WAS
SUFFICIENTLY CLEAR "THAT SACHER WAS ATTEMPTING TO MISLEAD THE COURT." 
182 F.2D 416, 424-425. 

FN4  THE JUDGMENTS OF CONTEMPT ON ALL SPECIFICATIONS WERE FILED ON
OCTOBER 14, 1949. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE WITH MR. JUSTICE FRANKFURTER THAT ONE WHO READS THIS RECORD
WILL HAVE DIFFICULTY IN DETERMINING WHETHER MEMBERS OF THE BAR
CONSPIRED TO DRIVE A JUDGE FROM THE BENCH OR WHETHER THE JUDGE USED THE
AUTHORITY OF THE BENCH TO WHIPSAW THE LAWYERS, TO TAUNT AND TEMPT THEM,
AND TO CREATE FOR HIMSELF THE ROLE OF THE PERSECUTED.  I HAVE
RELUCTANTLY CONCLUDED THAT NEITHER IS BLAMELESS, THAT THERE IS FAULT ON
EACH SIDE, THAT WE HAVE HERE THE SPECTACLE OF THE BENCH AND THE BAR
USING THE COURTROOM FOR AN UNSEEMLY DEMONSTRATION OF GARRULOUS
DISCUSSION AND OF ILL WILL AND HOT TEMPERS. 

I THEREFORE AGREE WITH MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER
THAT THIS IS THE CLASSIC CASE WHERE THE TRIAL FOR CONTEMPT SHOULD BE
HELD BEFORE ANOTHER JUDGE.  I ALSO AGREE WITH MR. JUSTICE BLACK THAT
PETITIONERS WERE ENTITLED BY THE CONSTITUTION TO A TRIAL BY JURY. 
..END :









LILLY V. COMMISSIONER OF INTERNAL REVENUE 343 U.S. 90 


NO. 158.  ARGUED DECEMBER 3, 1951.  - DECIDED MARCH 10, 1952.  - 188
F.2D 269, REVERSED. 


PETITIONERS WERE ENGAGED IN THE OPTICAL BUSINESS IN NORTH CAROLINA AND
VIRGINIA IN 1943 AND 1944.  PURSUANT TO AGREEMENTS REFLECTING AN
ESTABLISHED AND WIDESPREAD PRACTICE IN THAT INDUSTRY IN THOSE
LOCALITIES, THEY PAID TO THE RESPECTIVE DOCTORS WHO PRESCRIBED THE
EYEGLASSES WHICH THEY SOLD ONE-THIRD OF THE RETAIL SALES PRICE RECEIVED
FOR THE GLASSES.  HELD: 

1.  SUCH PAYMENTS WERE DEDUCTIBLE BY PETITIONERS AS "ORDINARY AND
NECESSARY" BUSINESS EXPENSES UNDER SEC. 23(A)(1)(A) OF THE INTERNAL
REVENUE CODE.  PP. 91-94. 

2.  DISALLOWANCE OF THE DEDUCTIONS ON THE GROUND THAT THE PAYMENTS
VIOLATED OR FRUSTRATED "PUBLIC POLICY" WAS UNWARRANTED, SINCE IN 1943
AND 1944 THERE WAS NO GOVERNMENTALLY DECLARED PUBLIC POLICY, NATIONAL
OR STATE, PROSCRIBING SUCH PAYMENTS.  TEXTILE MILLS CORP. V.
COMMISSIONER, 314 U.S. 326, DISTINGUISHED; COMMISSIONER V. HEININGER,
320 U.S. 467, FOLLOWED.  PP. 94-97. 

LILLY ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

THE COMMISSIONER'S DETERMINATION OF A DEFICIENCY IN PETITIONERS'
INCOME TAX WAS SUSTAINED BY THE TAX COURT.  14 T.C. 1066.  THE COURT OF
APPEALS AFFIRMED.  188 F.2D 269.  THIS COURT GRANTED CERTIORARI.  342
U.S. 808.  REVERSED AND REMANDED, P. 98. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, THOMAS B. LILLY AND HELEN W. LILLY, HIS WIFE, WERE
ENGAGED IN THE OPTICAL BUSINESS IN NORTH CAROLINA AND VIRGINIA IN 1943
AND 1944.  PURSUANT TO AGREEMENTS REFLECTING AN ESTABLISHED AND
WIDESPREAD PRACTICE IN THAT INDUSTRY IN THOSE LOCALITIES, THEY PAID TO
THE RESPECTIVE DOCTORS, WHO PRESCRIBED THE EYEGLASSES WHICH THEY SOLD,
ONE-THIRD OF THE RETAIL SALES PRICE RECEIVED FOR THE GLASSES.  THE
QUESTION HERE IS WHETHER SUCH PAYMENTS WERE DEDUCTIBLE BY PETITIONERS
AS ORDINARY AND NECESSARY BUSINESS EXPENSES UNDER SEC. 23(A)(1)(A) OF
THE INTERNAL REVENUE CODE.  (FN1)  FOR THE REASONS HEREAFTER STATED WE
HOLD THAT THEY WERE. 

PETITIONERS OWNED AND OPERATED AS PARTNERS THE CITY OPTICAL COMPANY
WITH OFFICES IN WILMINGTON, FAYETTEVILLE AND GREENSBORO, NORTH
CAROLINA, AND RICHMOND, VIRGINIA.  PETITIONER HELEN W. LILLY ALSO OWNED
AND OPERATED THE DUKE OPTICAL COMPANY IN FAYETTEVILLE. 

SINCE LONG BEFORE 1922 WHEN THOMAS B. LILLY ESTABLISHED HIS BUSINESS
IN WILMINGTON, EYE DOCTORS, IN THAT LOCALITY AND TO A SUBSTANTIAL
EXTENT THROUGHOUT COMPARABLE COMMUNITIES IN NORTH CAROLINA, VIRGINIA
AND ELSEWHERE IN THE UNITED STATES, NOT ONLY EXAMINED THEIR PATIENTS'
EYES AND PRESCRIBED GLASSES, BUT ALSO SOLD THEM THE GLASSES.  THE
DOCTORS BOUGHT THE FRAMES AND LENSES WHOLESALE, PREPARED AND FITTED THE
GLASSES TO THE PATIENTS AND SOLD THE GLASSES AT A PROFIT. 

LILLY AND OTHER OPTICIANS OFFERED TO FILL THE PRESCRIPTIONS FOR THE
DOCTORS AND TO SUPPLY AND FIT THE FRAMES TO THE PATIENTS.  TO
COMPENSATE THE DOCTORS FOR THEIR LOSS OF PROFIT ON THE SALES, THE
OPTICIANS GENERALLY PAID THE DOCTORS ONE-THIRD OF THE RETAIL PRICE OF
THE GLASSES.  WHILE INFORMATION AS TO THIS ARRANGEMENT WAS NOT
VOLUNTEERED TO THE PATIENTS, IT WAS FREELY DISCLOSED ON INQUIRY.  THE
DOCTORS MADE IT A PRACTICE TO ASK THEIR PATIENTS TO BRING IN THEIR NEW
GLASSES FOR VERIFICATION OF THE PRESCRIPTIONS AND TO ENABLE THE DOCTORS
TO SEE THAT THE FRAMES WERE PROPERLY FITTED.  WITHOUT FURTHER CHARGE,
THEY MADE WHATEVER REEXAMINATIONS AND MODIFICATIONS WERE NEEDED. 

FOR INCOME TAX PURPOSES, PETITIONERS TREATED THEIR PAYMENTS TO THE
DOCTORS AS ORDINARY AND NECESSARY EXPENSES OF CARRYING ON BUSINESS AND
DEDUCTED THEM FROM THEIR GROSS INCOMES.  THE DOCTORS, IN TURN, INCLUDED
THEM IN THEIR TAXABLE GROSS INCOMES.  HOWEVER, IN 1943 AND 1944, THE
RESPONDENT COMMISSIONER OF INTERNAL REVENUE DISALLOWED THESE DEDUCTIONS
IN PETITIONERS' RETURNS AND THEREBY INCREASED PETITIONERS' TAXABLE
INCOME AS FOLLOWS:

          CITY OPTICAL      DUKE OPTICAL   COMPANY

           COMPANY 

1942         $57,063.45 (FN2) 

1943          61,601.95         $6,568.87 

1944          60,021.65          4,798.35 

THE TAX COURT SUSTAINED THE COMMISSIONER ON THE GROUND THAT THE
PAYMENTS TO THE DOCTORS WERE CONTRARY TO PUBLIC POLICY.  ONE JUDGE
DISSENTED.  14 T.C. 1066.  THE RESULTING TAX DEFICIENCES TOTALED
$124,107.78.  THE COURT OF APPEALS AFFIRMED.  188 F.2D 269.  WE GRANTED
CERTIORARI, 342 U.S. 808, TO RESOLVE THE DISPUTED QUESTION OF STATUTORY
CONSTRUCTION AND TO PASS UPON THE APPLICATION TO THESE FACTS OF THE
PRINCIPLES ANNOUNCED IN TEXTILE MILLS CORP. V. COMMISSIONER, 314 U.S.
326, AND COMMISSIONER V. HEININGER, 320 U.S. 467. 

THE FACTS ARE NOT IN DISPUTE.  THE PAYMENTS TO THE DOCTORS WERE MADE
BY PETITIONERS MONTHLY IN THE REGULAR COURSE OF THEIR BUSINESS.  UNDER
THE LONG-ESTABLISHED PRACTICE IN THE OPTICAL INDUSTRY IN THE LOCALITIES
WHERE PETITIONERS DID BUSINESS, THESE PAYMENTS, IN 1943 AND 1944, WERE
NORMAL, USUAL AND CUSTOMARY IN SIZE AND CHARACTER.  THE TRANSACTIONS
FROM WHICH THEY AROSE WERE OF COMMON OR FREQUENT OCCURRENCE IN THE TYPE
OF BUSINESS INVOLVED.  THEY REFLECTED A NATIONWIDE PRACTICE.  (FN3)
CONSEQUENTLY, THEY WERE "ORDINARY" IN THE GENERALLY ACCEPTED MEANING OF
THAT WORD.  SEE DUPUTY V. DU PONT, 308 U.S. 488, 495; WELCH V.
HELVERING, 290 U.S. 111, 114. 

THE PAYMENTS LIKEWISE WERE "NECESSARY" IN THE GENERALLY ACCEPTED
MEANING OF THAT WORD.  IT WAS THROUGH MAKING SUCH PAYMENTS THAT
PETITIONERS HAD BEEN ABLE TO ESTABLISH THEIR BUSINESS.  DISCONTINUANCE
OF THE PAYMENTS WOULD HAVE MEANT, IN 1943 OR 1944, EITHER THE
RESUMPTION OF THE SALE OF GLASSES BY THE DOCTORS OR THE DOCTORS'
REFERENCE OF THEIR PATIENTS TO COMPETING OPTICIANS WHO SHARED PROFITS
WITH THEM.  SEVERAL DOCTORS TESTIFIED THAT THEY HAD RECOMMENDED
PETITIONERS AND PETITIONERS' COMPETITOR, THE AMERICAN OPTICAL COMPANY,
SIMULTANEOUSLY.  BOTH WERE SHARING PROFITS WITH THE DOCTORS ON
SUBSTANTIALLY THE SAME BASIS.  IF EITHER HAD STOPPED MAKING THE
PAYMENTS WHILE THE OTHER CONTINUED THEM, THERE IS NO REASON TO DOUBT
THAT THE DOCTORS THEREAFTER WOULD HAVE OMITTED THEIR RECOMMENDATION OF
THE NONPAYING OPTICIAN.  IN 1943 AND 1944 THE CONTINUANCE OF THESE
PAYMENTS WAS AS ESSENTIAL TO PETITIONERS AS WERE THEIR OTHER BUSINESS
EXPENSES.  AS HAS BEEN SAID OF LEGAL EXPENSES UNDER SOMEWHAT COMPARABLE
CIRCUMSTANCES, "TO SAY THAT THIS COURSE OF CONDUCT AND THE EXPENSES
WHICH IT INVOLVED WERE EXTRAORDINARY OR UNNECESSARY WOULD BE TO IGNORE
THE WAYS OF CONDUCT AND THE FORMS OF SPEECH PREVAILING IN THE BUSINESS
WORLD."  COMMISSIONER V. HEININGER, 320 U.S. 467, 472.  (FN4) 

THERE IS NO STATEMENT IN THE ACT, OR IN ITS ACCOMPANYING REGULATIONS,
PROHIBITING THE DEDUCTION OF ORDINARY AND NECESSARY BUSINESS EXPENSES
ON THE GROUND THAT THEY VIOLATE OR FRUSTRATE "PUBLIC POLICY." 

THE TAX COURT IN THE INSTANT CASE MADE NO FINDING OF FACT THAT THE
PAYMENTS TO THE DOCTORS WERE NOT ORDINARY AND NECESSARY BUSINESS
EXPENSES.  IT SUSTAINED THE COMMISSIONER'S DISALLOWANCE OF THEIR
DEDUCTIBILITY BECAUSE IT HELD THAT, AS A MATTER OF LAW, THE CONTRACTS
UNDER WHICH THE PAYMENTS WERE MADE VIOLATED PUBLIC POLICY.  (FN5) 

WE DO NOT HAVE BEFORE US THE ISSUE THAT WOULD BE PRESENTED BY
EXPENDITURES WHICH THEMSELVES VIOLATED A FEDERAL OR STATE LAW OR WERE
INCIDENTAL TO SUCH VIOLATIONS.  (FN6)  IN SUCH CASE IT COULD BE ARGUED
THAT THE OUTLAWED EXPENDITURES, BY VIRTUE OF THEIR ILLEGALITY, WERE NOT
"ORDINARY AND NECESSARY" BUSINESS EXPENSES WITHIN THE MEANING OF SEC.
23(A)(1)(A).  (FN7) 

IN TEXTILE MILLS CORP. V. COMMISSIONER, 314 U.S. 326, THIS COURT
ACCEPTED AN INTERPRETATION OF THAT SECTION BY A TREASURY REGULATION
WHICH DISALLOWED THE DEDUCTION OF CERTAIN EXPENDITURES FOR LOBBYING
PURPOSES.  IN DOING SO, THE COURT REFERRED TO THE FACT THAT SOME TYPES
OF LOBBYING EXPENDITURES HAD LONG BEEN CONDEMNED BY IT, AND THAT THE
INTERPRETATIVE REGULATION HAD ITSELF BEEN IN EFFECT MANY YEARS WITH
CONGRESSIONAL ACQUIESCENCE.  THE INSTANT CASE DOES NOT COME WITHIN THAT
PRECEDENT. 

IN COMMISSIONER V. HEININGER, 320 U.S. 467, THIS COURT WAS ASKED TO
GO FURTHER AND TO DISALLOW CERTAIN ATTORNEYS' FEES AND OTHER LEGAL
EXPENSES.  THEY WERE REASONABLE IN AMOUNT AND HAD BEEN LAWFULLY
INCURRED BY A LICENSED DENTIST (1) IN RESISTING THE ISSUANCE BY THE
POSTMASTER GENERAL OF A FRAUD ORDER WHICH WOULD HAVE DESTROYED THE
DENTIST'S BUSINESS AND (2) IN CONNECTION WITH SUBSEQUENT PROCEEDINGS ON
JUDICIAL REVIEW OF THE SAME CONTROVERSY.  WHILE THE SERVICES RESULTED
IN AN INJUNCTION WHICH STAYED THE ORDER DURING THE TIME THAT THE
TAXABLE INCOME IN QUESTION WAS RECEIVED, THE FINAL RESULT OF THE
LITIGATION WAS UNSUCCESSFUL FOR THE TAXPAYER.  NEVERTHELESS, THE
EXPENDITURES WERE PERMITTED TO BE DEDUCTED AS ORDINARY AND NECESSARY
EXPENSES OF THE TAXPAYER'S BUSINESS.  THE OPINION IN THAT CASE REVIEWS
THE POSITION OF THE BUREAU OF INTERNAL REVENUE, THE BOARD OF TAX
APPEALS AND THE FEDERAL COURTS.  ID., AT 473-474.  IT REFERS TO THE
NARROWING OF "THE GENERALLY ACCEPTED MEANING OF THE LANGUAGE USED IN
SEC. 23(A) IN ORDER THAT TAX DEDUCTION CONSEQUENCES MIGHT NOT FRUSTRATE
SHARPLY DEFINED NATIONAL OR STATE POLICIES PROSCRIBING PARTICULAR TYPES
OF CONDUCT."  ID., AT 473.  IT CONCLUDES THAT THE "LANGUAGE OF SEC.
23(A) CONTAINS NO EXPRESS REFERENCE TO THE LAWFUL OR UNLAWFUL CHARACTER
OF THE BUSINESS EXPENSES WHICH ARE DECLARED TO BE DEDUCTIBLE  ...  .
IF THE RESPONDENT'S LITIGATION EXPENSES ARE TO BE DENIED DEDUCTION, IT
MUST BE BECAUSE ALLOWANCE OF THE DEDUCTION WOULD FRUSTRATE THE SHARPLY
DEFINED POLICIES OF 39 U.S.C. SECS. 259 AND 732 WHICH AUTHORIZE THE
POSTMASTER GENERAL TO ISSUE FRAUD ORDERS."  ID., AT 474.  NEITHER THAT
DECISION NOR THE RULE SUGGESTED BY IT REQUIRES DISALLOWANCE OF
PETITIONERS' EXPENDITURES AS DEDUCTIONS IN THE INSTANT CASE. 

ASSUMING FOR THE SAKE OF ARGUMENT THAT, UNDER SOME CIRCUMSTANCES,
BUSINESS EXPENDITURES WHICH ARE ORDINARY AND NECESSARY IN THE GENERALLY
ACCEPTED MEANINGS OF THOSE WORDS MAY NOT BE DEDUCTIBLE AS "ORDINARY AND
NECESSARY" EXPENSES UNDER SEC. 23(A)(1)(A) WHEN THEY "FRUSTRATE SHARPLY
DEFINED NATIONAL OR STATE POLICIES PROSCRIBING PARTICULAR TYPES OF
CONDUCT," SUPRA, NEVERTHELESS THE EXPENDITURES NOW BEFORE US DO NOT
FALL IN THAT CLASS.  THE POLICIES FRUSTRATED MUST BE NATIONAL OR STATE
POLICIES EVIDENCED BY SOME GOVERNMENTAL DECLARATION OF THEM.  IN 1943
AND 1944 THERE WERE NO SUCH DECLARED PUBLIC POLICIES PROSCRIBING THE
PAYMENTS WHICH WERE MADE BY PETITIONERS TO THE DOCTORS. 

CUSTOMS AND THE ACTIONS OF ORGANIZED PROFESSIONAL ORGANIZATIONS HAVE
AN APPROPRIATE PLACE IN DETERMINING IN A FACTUAL SENSE WHAT ARE
ORDINARY AND NECESSARY EXPENSES AT A GIVEN TIME AND PLACE.  FOR
EXAMPLE, THEY MATERIALLY AFFECT COMPETITIVE STANDARDS WHICH DETERMINE
WHETHER CERTAIN EXPENDITURES ARE IN FACT ORDINARY AND NECESSARY. 
EVIDENCE OF THEM IS ADMISSIBLE ON THAT ISSUE.  THEY DO NOT, HOWEVER, IN
THEMSELVES CONSTITUTE THE "SHARPLY DEFINED NATIONAL OR STATE POLICIES"
THE FRUSTRATION OF WHICH MAY, AS A MATTER OF LAW, PRECLUDE THE
DEDUCTIBILITY OF AN EXPENSE UNDER SEC. 23(A)(1)(A). 

WE VOICE NO APPROVAL OF THE BUSINESS ETHICS OR PUBLIC POLICY INVOLVED
IN THE PAYMENTS NOW BEFORE US.  WE RECOGNIZE THE PROVINCE OF
LEGISLATURES TO TRANSLATE PROGRESSIVE STANDARDS OF PROFESSIONAL CONDUCT
INTO LAW AND WE NOTE THAT LEGISLATION HAS BEEN PASSED IN RECENT YEARS
IN NORTH CAROLINA AND OTHER STATES OUTLAWING THE PRACTICE HERE
CONSIDERED.  (FN8)  WE RECOGNIZE ALSO THE ORGANIZED ACTIVITIES OF THE
MEDICAL PROFESSION IN DEALING WITH THE SUBJECT.  (FN9)  A RESULTING
ABOLITION OF THE PRACTICE WILL REFLECT ITSELF IN THE TAX RETURNS OF THE
PARTIES WITHOUT THE RETROACTIVE HARDSHIP COMPLAINED OF HERE.  (FN10) 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED WITH DIRECTIONS TO REMAND TO THE TAX COURT WITH INSTRUCTIONS
TO SET ASIDE ITS JUDGMENT INSOFAR AS IT IS INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  "SEC.  23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES. 

"(1)  TRADE OR BUSINESS EXPENSES. 

"(A)  IN GENERAL.  ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS
...  ."  53 STAT. 12, 56 STAT. 819, 26 U.S.C. SEC. 23(A)(1)(A). 

FN2  THE YEAR 1942 WAS INVOLVED IN THE CALCULATION OF THE TAX FOR
1943 BECAUSE OF SEC. 6 OF THE CURRENT TAX PAYMENT ACT OF 1943, 57 STAT.
145-149. 

FN3  THE AMERICAN OPTICAL COMPANY, WITH MORE THAN 250 OUTLETS
DISTRIBUTED OVER 47 STATES, FOLLOWED THIS PRACTICE, BOTH IN COMPETITION
WITH PETITIONERS AND ELSEWHERE.  SEE ALSO, SNELL, SOME PRINCIPLES OF
MEDICAL ETHICS APPLIED TO THE PRACTICE OF OPHTHALMOLOGY, 117 A.M.A.J.
497-499 (1941); "WHAT DO YOU PAY FOR EYEGLASSES?"  FORTUNE MAGAZINE,
OCT. 1940, P. 103. 

FN4  "  ...  WITHOUT THIS EXPENSE, THERE WOULD HAVE BEEN NO
BUSINESS.  WITHOUT THE BUSINESS, THERE WOULD HAVE BEEN NO INCOME. 
WITHOUT THE INCOME, THERE WOULD HAVE BEEN NO TAX.  TO SAY THAT THIS
EXPENSE IS NOT ORDINARY AND NECESSARY IS TO SAY THAT THAT WHICH GIVES
LIFE IS NOT ORDINARY AND NECESSARY."  HEININGER V. COMMISSIONER, 133
F.2D 567, 570. 

FN5  "WE CONCLUDE THAT THE PAYMENTS UNDER THE CONTRACTS BETWEEN THE
TWO OPTICAL BUSINESSES, COMPOSED OF PETITIONERS, AND THE OCULISTS ARE
NOT DEDUCTIBLE AS ORDINARY AND NECESSARY EXPENSES BECAUSE THE CONTRACTS
UNDER WHICH THESE PAYMENTS WERE MADE VIOLATED PUBLIC POLICY."  14 T.C.
AT 1086. 

FN6  DEDUCTIONS TO COVER PENALTIES FOR UNLAWFUL CONDUCT WERE
DISALLOWED IN COMMISSIONER V. LONGHORN PORTLAND CEMENT CO., 148 F.2D
276 (PENALTIES FOR VIOLATION OF STATE ANTITRUST LAWS); AND GREAT
NORTHERN R. CO. V. COMMISSIONER, 40 F.2D 372 (PENALTIES AGAINST
RAILROAD FOR VIOLATING FEDERAL STATUTES OR REGULATIONS).  CF. ROSSMAN
CORP. V. COMMISSIONER, 175 F.2D 711, 713-714 (WHERE AN OVERCHARGE UNDER
THE EMERGENCY PRICE CONTROL ACT WAS ALLOWED TO BE DEDUCTED BECAUSE IT
DID NOT FRUSTRATE ANY "SHARPLY DEFINED POLICIES" OF THE ACT).  AS TO
DEDUCTIBILITY OF LEGAL FEES INCIDENT TO THE DEFENSE OF A TAXPAYER
AGAINST CHARGES OF ILLEGAL CONDUCT, SEE COMMISSIONER V. HEININGER, 320
U.S. 467, S.C., 133 F.2D 567; KORNHAUSER V. UNITED STATES, 276 U.S.
145; COMMISSIONER V. LONGHORN PORTLAND CEMENT CO., SUPRA; 4 MERTENS,
LAW OF FEDERAL INCOME TAXATION, 384-389; AND SEE GENERALLY, NOTE, 54
HARV. L. REV. 852-860.    FN7  THE GOVERNMENT CALLS ATTENTION TO ITS
PROSECUTION OF CERTAIN OTHER OPTICIANS IN OTHER STATES, IN 1946 FOR
VIOLATIONS OF THE SHERMAN ANTITRUST ACT DUE TO PRICE-FIXING AGREEMENTS
MADE WITH OCULISTS IN THE COURSE OF INTERSTATE COMMERCE.  THE CONSENT
DECREES IN THOSE CASES LEND LITTLE SUPPORT TO THE GOVERNMENT'S
CONTENTION THAT THE PAYMENTS MADE BY PETITIONERS IN 1943 AND 1944 IN
NORTH CAROLINA AND VIRGINIA WERE NOT DEDUCTIBLE.  IN FACT, THE RECITALS
IN THOSE DECREES TEND TO CONFIRM THE EXISTENCE OF A LONG-ESTABLISHED,
WIDESPREAD, UNDISTURBED PRACTICE OF THE KIND DESCRIBED.   UNITED STATES
V. BAUSCH & LOMB OPTICAL CO., CIVIL ACTION NO. 46C 1332; UNITED STATES
V. AMERICAN OPTICAL CO., CIVIL ACTION NO. 46C 1333; UNITED STATES V.
HOUSE OF VISION-BELGARD-SPERO, INC., CIVIL ACTION NO. 48C 607; AND
UNITED STATES V. UHLEMANN OPTICAL CO. OF ILLINOIS, CIVIL ACTION NO. 48C
608 (ALL IN U.S.D.C.N.D. ILL.). 

FN8  REMINGTON'S WASH. REV. STAT., 1949 SUPP., SEC. 10185-14;
DEERING'S CAL. BUSINESS AND PROFESSIONS CODE, 1951, SECS. 650, 652;
N.C. LAWS 1951, C. 1089, SECS. 21, 23. 

FN9  THE PRESENT TREND MAY LEAD TO THE COMPLETE ABOLITION OF THE
PRACTICE.  IF SO, ITS ABOLITION WILL HAVE BEEN ACCOMPLISHED LARGELY BY
THE DIRECT ACTION OF THOSE QUALIFIED TO PASS JUDGMENT ON ITS
JUSTIFICATION.  THIS GRADUALLY INCREASING OPPOSITION TO THE PRACTICE
BEARS WITNESS TO THE WIDESPREAD EXISTENCE OF THE PRACTICE IN SUCH
RECENT TIMES AS 1943 AND 1944.  SEE RESOLUTION OF SECTION ON
OPHTHALMOLOGY OF THE AMERICAN MEDICAL ASSOCIATION ADOPTED IN JUNE,
1924, BUT NOT THEN PRESENTED TO THE A.M.A. HOUSE OF DELEGATES, QUOTED
IN 117 A.M.A.J.  498 (1941); ADDRESS OF CHAIRMAN ALBERT C. SNELL, M.D.,
BEFORE THE SECTION ON OPHTHALMOLOGY, 117 A.M.A.J. 497-499 (1941);
PRINCIPLES OF MEDICAL ETHICS OF THE AMERICAN MEDICAL ASSOCIATION (1943
AND 1949); EDITORIALS IN 131 A.M.A.J. 1128 (1946); 136 A.M.A.J. 176-177
(1948). 

FN10  THE PAYMENTS MADE TO THE DOCTORS IN THE INSTANT CASE, AND
DISALLOWED AS DEDUCTIONS BY THE COURTS BELOW, AMOUNTED TO BETWEEN 56%
AND 72% OF PETITIONERS' TAXABLE BUSINESS INCOME.  THE INCOME THUS TAXED
HAD BEEN TRANSFERRED LONG AGO TO THE DOCTORS AND THEY HAD PAID THEIR
INCOME TAX ON IT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :








BUCK V. CALIFORNIA 343 U.S. 99 


NO. 165.  ARGUED NOVEMBER 28-29, 1951.  - DECIDED MARCH 10, 1952.  - 101
CAL. APP. 2D 907, 226 P.2D 87, AFFIRMED. 


1.  APPELLANTS ARE TAXICAB DRIVERS WHO TRANSPORTED PASSENGERS FROM
MEXICO ACROSS AN UNINCORPORATED AREA OF SAN DIEGO COUNTY, CALIFORNIA,
TO POINTS NOT IN THE UNINCORPORATED AREA.  THEY WERE CONVICTED OF
DRIVING TAXICABS IN AN UNINCORPORATED AREA OF THE COUNTY WITHOUT A
PERMIT FROM THE SHERIFF REQUIRED BY A COUNTY ORDINANCE.  THE ORDINANCE
REQUIRED A WRITTEN APPLICATION FOR A PERMIT, PAYMENT OF A $1 FEE, AND
COMPLIANCE WITH CERTAIN STANDARDS RELATING TO THE PUBLIC SAFETY.  HELD:
THE ORDINANCE AS HERE APPLIED WAS NOT INVALID UNDER THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 100-104. 

(A)  THE ORDINANCE WAS NOT INCONSISTENT WITH THE MOTOR CARRIER ACT OF
1935 OR INTERSTATE COMMERCE COMMISSION REGULATIONS.  PP. 101-102. 

(B)  NOR WAS THE ORDINANCE AN UNREASONABLE BURDEN ON FOREIGN
COMMERCE.  PP. 102-103. 

2.  THE QUESTION OF THE CONSTITUTIONAL VALIDITY OF A PROVISION OF THE
ORDINANCE REQUIRING A TAXICAB OPERATOR'S LICENSE AND PAYMENT OF A $50
FEE THEREFOR IS NOT HERE PRESENTED.  PP.  103-104. 

BUCK ET AL. V. CALIFORNIA. 

APPEAL FROM THE SUPERIOR COURT IN AND FOR THE COUNTY OF SAN DIEGO,
CALIFORNIA. 

APPELLANTS' CONVICTION OF VIOLATING A COUNTY ORDINANCE WAS AFFIRMED
BY THE SUPERIOR COURT OF CALIFORNIA.  101 CAL. APP. 2D 907, 226 P.2D
87.  ON APPEAL TO THIS COURT, AFFIRMED, P. 104. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, AMERICAN CITIZENS, ARE TAXICAB DRIVERS.  THEY WERE
ARRESTED BY THE SHERIFF OF SAN DIEGO COUNTY, CALIFORNIA, AND CHARGED
WITH DRIVING TAXICABS IN THE UNINCORPORATED AREA OF SAN DIEGO COUNTY
WITHOUT A PERMIT FROM THE SHERIFF AS REQUIRED BY SEC. 9 OF ORDINANCE
464, THE PERTINENT PROVISIONS OF WHICH ARE SET FORTH IN THE MARGIN.*
THE FACTS WERE STIPULATED WITHOUT THE TAKING OF ANY EVIDENCE.  FROM THE
STIPULATION WE LEARN THAT APPELLANTS HAD PICKED UP PASSENGERS ACROSS
THE LINE IN MEXICO AND WERE TRANSPORTING THEM ACROSS THE UNINCORPORATED
AREA OF SAN DIEGO COUNTY TO POINTS NOT IN THE UNINCORPORATED AREA WHEN
THEY WERE ARRESTED.  THEY HAD MADE ORAL REQUESTS FOR PERMITS FROM THE
SHERIFF, RATHER THAN APPLICATION IN WRITING ON THE FORMS PROVIDED
THEREFOR, AS REQUIRED BY SEC. 9 OF THE ORDINANCE.  WHEN THESE REQUESTS
WERE DENIED, THEY CONTINUED TO TRANSPORT PASSENGERS, ALTHOUGH UPON
ADVICE OF COUNSEL THEY DID NOT PICK UP OR DISCHARGE ANY PASSENGERS IN
THE UNINCORPORATED AREA.  WE TAKE THEIR ACTION TO MEAN THAT THEY
CLAIMED THAT BECAUSE THEY WERE ENGAGED IN FOREIGN COMMERCE, THEY HAD
EITHER THE RIGHT TO A PERMIT WITHOUT COMPLYING WITH THE OTHER
PROVISIONS OF THE ORDINANCE OR THE RIGHT TO OPERATE WITHOUT A PERMIT. 
APPELLANTS CONTEND THAT THE COUNTY HAD NO RIGHT TO BURDEN THAT FOREIGN
COMMERCE BY REGULATION. 

*"APPLICANTS FOR SUCH PERMITS SHALL FILE APPLICATIONS THEREFOR WITH
THE SHERIFF OF THE COUNTY OF SAN DIEGO ON A FORM FURNISHED BY THE
SHERIFF WHICH, WHEN COMPLETED, WILL CONTAIN FULL PERSONAL INFORMATION
CONCERNING THE APPLICANT. 

"UPON OBTAINING A PERMIT AS HEREIN REQUIRED THE HOLDER OF SUCH PERMIT
SHALL BE ENTITLED TO AN IDENTIFICATION CARD OF SUCH DESIGN, AND BEARING
SUCH NUMBER AS THE SHERIFF MAY PRESCRIBE, UPON PAYMENT OF A FEE OF
$1.00 ANNUALLY, THEREFOR, WHICH SHALL BE PAID BY THE APPLICANT TO THE
TAX COLLECTOR AND SHALL BE DUE ON THE 1ST DAY OF JUNE OF EACH YEAR. 
SUCH CARD SHALL BE CARRIED BY THE PERMITTEE DURING ALL BUSINESS HOURS
AND SHALL NOT BE TRANSFERABLE. 

"EACH APPLICANT FOR A PERMIT SHALL BE EXAMINED BY THE SHERIFF AS TO
HIS KNOWLEDGE OF THE PROVISIONS OF THIS ORDINANCE, THE VEHICLE CODE,
TRAFFIC REGULATIONS AND THE GEOGRAPHY OF THE COUNTY, AND IF THE RESULT
OF THE EXAMINATION IS UNSATISFACTORY HE SHALL BE REFUSED A PERMIT.  THE
SHERIFF MAY DENY THE APPLICATION OR HAVING ISSUED THE PERMIT MAY REVOKE
THE SAME IF THE SHERIFF SHALL DETERMINE THAT THE APPLICANT OR TAXICAB
DRIVER IS OF BAD MORAL CHARACTER OR IS GUILTY OF VIOLATION OF ANY OF
THE PROVISIONS OF THIS ORDINANCE OR OF ANY LAWFUL REGULATION
PROMULGATED PURSUANT THERETO OR HAS BEEN CONVICTED OF ANY OFFENSE
INVOLVING MORAL TURPITUDE." 

THEY WERE FOUND GUILTY OF VIOLATING SEC. 9 OF THE ORDINANCE BY THE
JUSTICE'S COURT OF NATIONAL TOWNSHIP, SAN DIEGO COUNTY.  THE SUPERIOR
COURT OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO, APPELLATE
DEPARTMENT, AFFIRMED THE CONVICTION AND ALLOWED AN APPEAL TO THIS
COURT.  101 CAL. APP. 2D SUPP. 912, 226 P.2D 87.  WE NOTED PROBABLE
JURISDICTION UNDER 28 U.S.C. SEC. 1257(2). 

THE MOTOR CARRIER ACT OF 1935 GAVE BROAD POWER OF REGULATION OVER
MOTOR VEHICLES TO THE INTERSTATE COMMERCE COMMISSION; BUT CONGRESS
PARTIALLY EXCLUDED TAXICABS FROM SUCH REGULATION IN THE FOLLOWING
WORDS: 

"NOTHING IN THIS PART, EXCEPT THE PROVISIONS OF SECTION 204 RELATIVE
TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND SAFETY
OF OPERATION OR STANDARDS OF EQUIPMENT SHALL BE CONSTRUED TO INCLUDE
... (2) TAXICABS, OR OTHER MOTOR VEHICLES PERFORMING A BONA FIDE
TAXICAB SERVICE, HAVING A CAPACITY OF NOT MORE THAN SIX PASSENGERS AND
NOT OPERATED ON A REGULAR ROUTE OR BETWEEN FIXED TERMINI  ...  ."  49
STAT. 545, 49 U.S.C. SEC. 303(B). 

THE INTERSTATE COMMERCE COMMISSION, ACTING UNDER AUTHORIZATION OF
CONGRESS, HAS PROMULGATED REGULATIONS ESTABLISHING MINIMUM
QUALIFICATIONS FOR DRIVERS OF MOTOR VEHICLES FOR CARRIERS, INCLUDING
TAXICABS, ENGAGED IN INTERSTATE AND FOREIGN COMMERCE, 49 CFR SEC.
192.2.  THIS DOES NOT PREVENT THE STATE OR A SUBDIVISION THEREOF, IN
THE EXERCISE OF ITS POLICE POWER, FROM PROVIDING ADDITIONAL
SPECIFICATIONS AS TO QUALIFICATIONS, NOT INCONSISTENT OR IN CONFLICT
WITH THE REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION.  ESPECIALLY
IS THIS TRUE SINCE THE REGULATIONS OF THE COMMISSION ARE ONLY MINIMUM. 

AS THE ORDINANCE IS NOT IN CONFLICT WITH AND MAY BE CONSTRUED
CONSISTENTLY WITH THE FEDERAL REGULATIONS AND IN KEEPING WITH THE
LATTER'S PURPOSE, THEY MAY STAND TOGETHER.  KELLY V. WASHINGTON, 302
U.S. 1, 10; MISSOURI, K.&T.R. CO. V. HARRIS, 234 U.S. 412, 419; SAVAGE
V. JONES, 225 U.S. 501, 539; REID V. COLORADO, 187 U.S. 137, 148. 

CALIFORNIA HAS A LEGITIMATE INTEREST IN THE KIND AND CHARACTER OF
PERSONS WHO ENGAGE IN THE TAXICAB BUSINESS IN THE STATE.  THE AUTHORITY
TO ISSUE PERMITS HAS BEEN GRANTED BY THE STATE TO THE BOARD OF
SUPERVISORS OF EACH COUNTY.  IN RE MARTINEZ, 22 CAL. 2D 259, 262, 138
P.2D 10.  SUCH DELEGATION BY THE STATE TO THE COUNTY HAS BEEN APPROVED
BY THIS COURT.  SPROUT V. SOUTH BEND, 277 U.S. 163, 171, 172. 

THE OPERATION OF TAXICABS IS A LOCAL BUSINESS.  FOR THAT REASON,
CONGRESS HAS LEFT THE FIELD LARGELY TO THE STATES.  OPERATION OF
TAXICABS ACROSS STATE LINES OR INTERNATIONAL BOUNDARIES IS SO CLOSELY
RELATED TO THE LOCAL SITUATION THAT THE REGULATION OF ALL TAXICABS
OPERATING IN THE COMMUNITY ONLY INDIRECTLY AFFECTS THOSE IN COMMERCE,
AND SO LONG AS THERE IS NO ATTEMPT TO DISCRIMINATORILY REGULATE OR
DIRECTLY BURDEN OR CHARGE FOR THE PRIVILEGE OF DOING BUSINESS IN
INTERSTATE OR FOREIGN COMMERCE, THE REGULATION IS VALID.  THE OPERATION
IS "ESSENTIALLY LOCAL," AND IN THE ABSENCE OF FEDERAL REGULATION, STATE
REGULATION IS REQUIRED IN THE PUBLIC INTEREST.  PANHANDLE PIPE LINE CO.
V. MICHIGAN PUB. SERV. COMM'N, 341 U.S. 329, 333.  EVEN IF APPELLANTS
WERE ENGAGED IN FOREIGN COMMERCE AT THE TIME OF THEIR ARREST AND DID
NOT INTEND TO ENGAGE IN INTRASTATE COMMERCE, THE PERMIT WAS NOT
REQUIRED BECAUSE THEY WERE ENGAGED IN FOREIGN COMMERCE.  UNDER THE
PERMIT THEY WERE FREE TO ENGAGE IN BOTH INTRASTATE AND FOREIGN
COMMERCE.  THE ORDINANCE REQUIRES A WRITTEN APPLICATION FOR A PERMIT, A
SMALL FEE, AND COMPLIANCE WITH CERTAIN STANDARDS RELATING TO THE
SERVICE AND TO THE PUBLIC SAFETY.  OUR PRIOR CASES WOULD NOT JUSTIFY US
IN HOLDING THAT THE ORDINANCE IS AN UNREASONABLE BURDEN ON FOREIGN
COMMERCE IN ITS APPLICATION TO THE STIPULATED FACTS HERE.  AERO TRANSIT
CO. V. GEORGIA COMM'N, 295 U.S. 285; HICKLIN V. CONEY, 290 U.S. 169;
CF. RAILWAY EXPRESS AGENCY V. NEW YORK, 336 U.S. 106, 111. 

THUS FAR WE HAVE DEALT ONLY WITH SEC. 9 OF THE ORDINANCE, WHICH
EXACTS THE $1 FEE FOR A DRIVER'S PERMIT.  THAT IS ALL THE COURT WE ARE
REVIEWING PASSED UPON.  THAT IS ALL APPELLANTS WERE TRIED AND CONVICTED
FOR.  BUT IT IS SUGGESTED THAT THE PERMIT MAY HAVE BEEN DENIED THEM
BECAUSE THEY HAD VIOLATED SEC. 4 OF THE ORDINANCE BY NOT GETTING A
TAXICAB OPERATOR'S LICENSE AND PAYING THE $50 FEE THEREFOR.  BUT
APPELLANTS MAY ALSO HAVE BEEN DENIED PERMITS UNDER SEC. 9 FOR THE
REASON THAT ORAL REQUESTS ONLY WERE MADE AND NOT WRITTEN APPLICATIONS
TO THE SHERIFF, AS REQUIRED BY THE ORDINANCE, OR THE SHERIFF MAY HAVE
FOUND THEM WITHOUT KNOWLEDGE AS TO THE GEOGRAPHY OF THE COUNTY AND
TRAFFIC REGULATIONS, OR THAT THEY WERE PERSONS OF BAD MORAL CHARACTER
OR HAD BEEN CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE, ALL
ADEQUATE STATE GROUNDS.  IN THAT EVENT, THIS COURT WOULD NOT TAKE
JURISDICTION TO PASS UPON THE QUESTION.  CHIEF JUSTICE HUGHES, SPEAKING
FOR THE COURT IN LYNCH V. NEW YORK EX REL. PIERSON, 293 U.S. 52, 54-55,
SAID: 

"IF IT DOES NOT APPEAR UPON WHICH OF TWO GROUNDS THE JUDGMENT WAS
BASED, AND THE GROUND INDEPENDENT OF A FEDERAL QUESTION IS SUFFICIENT
IN ITSELF TO SUSTAIN IT, THIS COURT WILL NOT TAKE JURISDICTION." 
(CITING NUMEROUS CASES.) 

THIS COURT SHOULD NOT BE REACHING FOR CONSTITUTIONAL QUESTIONS TO
CAST DOUBT UPON STATE LEGISLATION NOT BEFORE THE COURT.  THE
CONSTITUTIONAL VALIDITY OF THE $50 REQUIREMENT IS NOT NOW BEFORE THE
COURT AND WAS NOT BEFORE THE LOWER COURT. 

THE JUDGMENT OF THE SUPERIOR COURT OF CALIFORNIA IS AFFIRMED. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE JACKSON
AND MR. JUSTICE BURTON JOIN, DISSENTING. 

THE APPELLANTS ARE AMERICAN CITIZENS WHO WERE PROSECUTED IN THE
JUSTICE'S COURT OF NATIONAL TOWNSHIP, COUNTY OF SAN DIEGO, CALIFORNIA,
FOR VIOLATING SAN DIEGO COUNTY ORDINANCE NO. 958 (NEW SERIES), AMENDING
SEC. 9 OF ORDINANCE 464 (NEW SERIES), AS AMENDED BY ORDINANCE 609 (NEW
SERIES).  THE COMPLAINT SPECIFIED THAT APPELLANTS VIOLATED SEC. 9 OF
THE ORDINANCE BY WILFULLY DRIVING THEIR TAXICABS IN THE UNINCORPORATED
AREA OF THE COUNTY OF SAN DIEGO WITHOUT FIRST HAVING OBTAINED A WRITTEN
PERMIT FROM THE SHERIFF AUTHORIZING THEM TO DO SO. 

UNDER THE TERMS OF SEC. 9, EVERY DRIVER OF A TAXICAB IN THE
UNINCORPORATED AREA OF THE COUNTY, HEREINAFTER CALLED SIMPLY THE
COUNTY, IS REQUIRED TO OBTAIN A WRITTEN PERMIT FROM THE SHERIFF.  (FN1)
AFTER THE PERMIT IS ISSUED, THE COUNTY EXACTS A $1 FEE FOR AN
IDENTIFICATION CARD.  THE SHERIFF HAS AUTHORITY TO DENY AN APPLICATION
FOR THE PERMIT IF HE DETERMINES THAT THE APPLICANT (1) IS OF BAD MORAL
CHARACTER; OR (2) HAS FAILED TO COMPLY WITH ANY OF THE OTHER PROVISIONS
OF THE ORDINANCE; OR (3) HAS BEEN CONVICTED OF AN OFFENSE INVOLVING
MORAL TURPITUDE.  SECTION 13 PROVIDES THAT A VIOLATION OF SEC. 9 IS A
MISDEMEANOR, PUNISHABLE BY A FINE OF NOT MORE THAN $500, OR
IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR BOTH. 

APPELLANTS WERE CONVICTED OF VIOLATING SEC. 9, AND EACH WAS FINED
$250.  THEY APPEALED TO THE SUPERIOR COURT OF CALIFORNIA, IN AND FOR
THE COUNTY OF SAN DIEGO, APPELLATE DEPARTMENT, WHERE THE JUDGMENTS WERE
AFFIRMED.  101 CAL. APP. 2D SUPP. 912, 226 P.2D 87.  THAT COURT, BY
ALLOWING AN APPEAL TO THIS COURT, CONFIRMS OUR UNDERSTANDING THAT NO
FURTHER REVIEW WAS AVAILABLE IN THE CALIFORNIA COURTS.  (FN2)
ACCORDINGLY, WE NOTED PROBABLE JURISDICTION.  28 U.S.C. SEC. 1257(2). 

OF THE MULTIPLE ERRORS ASSIGNED, ONLY ONE NEED BE CONSIDERED, FOR IT
DISPOSES OF THE CASE:  THAT THE CALIFORNIA COURTS ERRED IN HOLDING THAT
SEC. 9 OF ORDINANCE NO. 464, AS CONSTRUED AND APPLIED TO THIS
COMPLAINT, DOES  NOT EXCEED THE CONSTITUTIONAL LIMITS OF THE POWER OF
SAN DIEGO COUNTY TO REGULATE FOREIGN COMMERCE.  THIS QUESTION WAS
RAISED IN THE TRIAL COURT BY MOTION FOR ARREST OF JUDGMENT, AND WAS
TREATED AS PROPERLY IN ISSUE BY BOTH CALIFORNIA COURTS.  CLEARLY THEY
REJECTED, AS A MATTER OF CALIFORNIA LAW, APPELLEE'S CONTENTION THAT THE
CONSTITUTIONAL QUESTIONS WERE NOT PROPERLY PRESENTED BECAUSE APPELLANTS
HAD FAILED TO EXHAUST THE ADMINISTRATIVE OR OTHER JUDICIAL REMEDIES
ALLEGEDLY AVAILABLE FOR REVIEW OF THE DENIAL OF THE DRIVER'S PERMITS,
THE SUPERIOR COURT SAYING:  "  ...  WE WILL HAVE TO DECIDE WHETHER THE
ORDINANCE IS VALID AS TESTED BY THE COMMERCE CLAUSE  ...  ."  (FN3)  WE
ARE, OF COURSE, BOUND BY THIS DETERMINATION OF CALIFORNIA LAW.  IT IS
THEREFORE UNNECESSARY TO CONSIDER WHETHER THERE WAS AVAILABLE TO
APPELLANTS ANY EFFECTIVE METHOD TO TEST IN THE CALIFORNIA COURTS THE
CONSTITUTIONALITY OF THE DENIAL OF THEIR PERMITS, OR WHETHER - IF SUCH
REMEDIES WERE AVAILABLE - THE FAILURE TO EXERCISE THEM WOULD PRECLUDE
THE DEFENSE OF UNCONSTITUTIONALITY IN THIS CRIMINAL PROSECUTION. 

THE CASE WAS TRIED ON A STIPULATION OF FACTS.  IT IS NOT DISPUTED,
THEREFORE, THAT APPELLANTS APPLIED FOR THE DRIVER'S PERMITS REQUIRED BY
SEC. 9 OF THE ORDINANCE.  (FN4)  THESE APPLICATONS WERE DENIED,
ALTHOUGH THE RECORD DOES NOT SHOW THE REASONS FOR THE DENIALS.  THE
SUPERIOR COURT STATED: "EACH OF THE DEFENDANTS HAD APPLIED FOR AND BEEN
DENIED THE LICENSE (PERMIT) REQUIRED BY THE ORDINANCE IN QUESTION."  NO
ISSUE WAS MADE AS TO THE SUFFICIENCY OF THE APPLICATION, AND THE
OPINION MAKES NO POINT OF ANY IRREGULARITY IN APPLYING.  THEREAFTER,
APPELLANTS, ON THE ADVICE OF COUNSEL, CONTINUED NONETHELESS TO
TRANSPORT PERSONS BY TAXICAB TO AND FROM MEXICO ACROSS THE
UNINCORPORATED TERRITORY OF THE COUNTY.  IT IS THIS TRANSPORTATION,
AFTER DENIAL OF THE DRIVER'S PERMITS, FOR WHICH APPELLANTS ARE BEING
PROSECUTED IN THIS CASE. 

THE STIPULATION FURTHER DISCLOSES THAT APPELLANTS NEITHER PICKED UP
NOR DISCHARGED PASSENGERS IN SAN DIEGO COUNTY.  THEIR ONLY OPERATIONS
IN THE COUNTY CONSISTED OF DRIVING PASSENGERS THROUGH THE COUNTY, TO
AND FROM MEXICO.  SO FAR AS THE RECORD SHOWS, APPELLANTS ARE ENGAGED
SOLELY IN FOREIGN COMMERCE.  THUS IT IS CLEAR THAT SAN DIEGO COUNTY, BY
REFUSING TO ISSUE THE DRIVER'S PERMITS, IS ATTEMPTING BY REGULATION TO
EXCLUDE APPELLANTS FROM TRANSPORTING PERSONS IN FOREIGN COMMERCE ACROSS
SAN DIEGO COUNTY UNLESS THEY MEET THE QUALIFICATIONS FOR DRIVERS
ESTABLISHED BY THE ORDINANCE.  THE ISSUE IS WHETHER THIS EXCLUSION CAN
BE RECONCILED WITH THE CONSTITUTIONAL DELEGATION TO CONGRESS OF THE
POWER TO REGULATE FOREIGN COMMERCE.    GENERALLY, IT IS WELL SETTLED
THAT THE POWER TO REGULATE FOREIGN COMMERCE IS LODGED IN THE FEDERAL
GOVERNMENT.  U.S. CONST., ART. I, SEC. 8.  OF COURSE, THIS DOES NOT
MEAN THAT THE STATES ARE POWERLESS IN ALL CASES TO TAKE REASONABLE
MEASURES TO PROTECT THEIR LEGITIMATE INTERESTS.  (FN5) FOR EXAMPLE, IN
THE ABSENCE OF CONFLICTING CONGRESSIONAL LEGISLATION, (FN6) WE ASSUME
THAT SAN DIEGO COUNTY MIGHT REQUIRE THAT LOADS SHOULD NOT EXCEED A
REASONABLE MINIMUM WEIGHT AND THAT, IF APPELLANTS VIOLATED SUCH
REGULATION, THE COUNTY COULD PROPERLY PROHIBIT THEM FROM DRIVING THEIR
TAXICABS ACROSS THE COUNTY.  (FN7) 

THE BURDEN, OF COURSE, IS UPON APPELLANTS AS CHALLENGERS OF THE
VALIDITY OF THE ORDINANCE TO ESTABLISH ITS UNCONSTITUTIONALITY.  THAT
BURDEN IS MET PRIMA FACIE WHEN THEY SHOW THAT THE ORDINANCE EXACTS
PAYMENT FROM FOREIGN COMMERCE OF FIFTY DOLLARS ($50) FOR AN OPERATOR'S
LICENSE, NOTE 10, INFRA, PLUS THE DRIVER'S PERMIT.  THE STIPULATED
FACTS SHOW THE FOREIGN COMMERCE; THE OPINION OF THE TRIAL COURT SHOWS
THAT APPELLANTS RELIED UPON THE $50 LICENSE FEE AS AN UNCONSTITUTIONAL
BURDEN.  (FN8)  THEREUPON THE GOVERNMENT BODY, SEEKING TO REGULATE,
MUST MAKE IT AFFIRMATIVELY APPEAR IN SOME WAY THAT THE REGULATION IS
DIRECTED TOWARD AN INCIDENT SUBJECT TO STATE CONTROL.  CF. INTERSTATE
TRANSIT, INC. V. LINDSEY, 283 U.S. 183, 186; INGELS V. MORF, 300 U.S.
290, 294; CLARK V. PAUL GRAY, INC., 306 U.S. 583, 599.  A TAXING
MUNICIPALITY MUST SHOW, FOR EXAMPLE, THAT THE TAX ON INTERSTATE
COMMERCE IS INTENDED TO COMPENSATE FOR FACILITIES PROVIDED BY THE
STATE.  AERO MAYFLOWER TRANSIT CO. V. COMMISSIONERS, 332 U.S. 495, 505;
CAPITOL GREYHOUND LINES V. BRICE, 339 U.S. 542; SEE ELGIN V. CAPITOL
GREYHOUND LINES, 192 MD. 303, 310, 318, 64 A.2D 284, 288, 291-292. 
THIS DOES 'NOT REMOTELY IMPLY THAT THE BURDEN IS ON THE TAXING
AUTHORITIES TO SUSTAIN THE CONSTITUTIONALITY OF A TAX.  BUT WHERE THE
POWER TO TAX IS NOT UNLIMITED, VALIDITY IS NOT ESTABLISHED BY THE MERE
IMPOSITION OF A TAX."  MULLANEY V. ANDERSON, 342 U.S. 415, 418. 

WHILE THIS PERMIT MIGHT HAVE BEEN PROPERLY DENIED FOR AN ADEQUATE
STATE REASON AND NOT FOR LACK OF THE $50 OPERATOR'S LICENSE, IT IS
INCUMBENT ON THE STATE (OR, IN THIS CASE, THE COUNTY) TO STATE THAT
REASON AT THE TRIAL.  APPELLANTS NEED NOT, AND AS A PRACTICAL MATTER
COULD NOT, EXPLAIN WHY THE SHERIFF OF SAN DIEGO COUNTY DENIED THEIR
PERMITS.  THE ALTERNATIVE TO REQUIRING EXPLANATION BY THE COUNTY OF THE
REASON FOR REFUSING A LICENSE WOULD BE TO COMPEL THE APPLICANTS TO
PROVE THEIR COMPLIANCE WITH ALL VALID REQUIREMENTS.  THUS, ASSUMING
THAT THE REMAINDER OF THE ORDINANCE IS VALID, THEY WOULD BE COMPELLED
UNDER THE TERMS OF THE ORDINANCE TO SHOW, FOR EXAMPLE, THAT THE SHERIFF
BELIEVES THAT THEY ARE OF GOOD MORAL CHARACTER, AND THAT THEY HAVE
NEVER BEEN CONVICTED OF AN OFFENSE INVOLVING MORAL TURPITUDE.  IN VIEW
OF THE FACT THAT ONLY THE COUNTY THROUGH ITS OFFICERS CAN KNOW THE
REASONS FOR DENIAL OF THE PERMITS, AND CAN, BY PLACING THESE REASONS ON
THE RECORD, NARROW THE ISSUES TO MANAGEABLE PROPORTIONS AND GIVE
APPELLANTS A FAIR OPPORTUNITY TO PRESENT THEIR OBJECTIONS, THE BURDEN
OF GOING FORWARD WITH THIS EVIDENCE MUST REST ON THE COUNTY. 

IN THIS CASE, SAN DIEGO COUNTY HAS OFFERED NO EXPLANATION FOR ITS
ACTION.  THE RECORD SHOWS NO BASIS FOR ANY CONCLUSION BY US.  CF.
HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652, 658.  WE CANNOT DETERMINE,
ON THIS RECORD, WHETHER THE SHERIFF DENIED THE PERMITS BECAUSE HE HAD
FORMED A LOW OPINION OF APPELLANTS' MORAL CHARACTER, (FN9) OR BECAUSE
THE SHERIFF WAS DISSATISFIED WITH THEIR KNOWLEDGE OF THE GEOGRAPHY OF
THE COUNTY, OR FOR LACK OF THE $50 OPERATOR'S LICENSE.  WITHOUT SOME
EXPLANATION, IT IS IMPOSSIBLE FOR THIS COURT TO DECIDE THAT THE COUNTY
IS JUSTIFIED IN EXCLUDING APPELLANTS FROM ENGAGING IN FOREIGN COMMERCE
IN THE COUNTY.  CF. SMITH V. CAHOON, 283 U.S. 553, 565.   IN COMPARABLE
SITUATIONS THIS COURT HAS FELT THE NEED OF GREATER PARTICULARITY FOR
ADJUDICATION.  RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 575. 

OF COURSE, IT MIGHT BE UNNECESSARY FOR THE COUNTY TO EXPLAIN THE
PRECISE REASON WHY THE PERMITS WERE DENIED, IF THE ORDINANCE ITSELF
LIMITED THE SHERIFF TO CONSTITUTIONALLY VALID REASONS.  BUT THIS
ORDINANCE DOES NOT SO LIMIT THE SHERIFF'S DECISIONS.  FOR EXAMPLE, SEC.
9 OF THE ORDINANCE IN QUESTION HERE CONTEMPLATES THAT THE SHERIFF WILL
DENY A DRIVER'S PERMIT TO ANY PERSON WHO HAS FAILED TO COMPLY WITH THE
OTHER PROVISIONS OF THE ORDINANCE.  WHILE WE CANNOT BE SURE, ON THIS
RECORD, WHY THE SHERIFF REFUSED TO ISSUE THE PERMITS TO APPELLANTS, IT
IS LIKELY THAT HIS REFUSAL WAS BASED ON THE FACT THAT APPELLANTS HAD
NOT PREVIOUSLY ACQUIRED A LICENSE TO OPERATE THEIR TAXICABS IN SAN
DIEGO COUNTY, AS REQUIRED BY SEC. 4 OF THE ORDINANCE.  (FN10)  THAT
THE PRIVILEGE OF OPERATING TAXICABS IN SAN DIEGO COUNTY.  THERE IS NO
SUGGESTION THAT THE $50 FEE IS LEVIED ONLY AS COMPENSATION FOR THE USE
OF THE ROADS OF THE COUNTY, OR TO DEFRAY THE EXPENSE OF REGULATING
MOTOR TRAFFIC.  CLEARLY SUCH A TAX FOR THE PRIVILEGE OF ENGAGING IN
FOREIGN COMMERCE COULD NOT CONSTITUTIONALLY BE IMPOSED BY SAN DIEGO
COUNTY.   CF.  SPROUT V. SOUTH BEND, 277 U.S. 163; INTERSTATE TRANSIT,
INC. V. LINDSEY, 283 U.S. 183; INGELS V. MORF, 300 U.S. 290; SPECTOR
MOTOR SERVICE, INC. V. O'CONNOR, 340 U.S. 602.  SEE CRUTCHER V.
KENTUCKY, 141 U.S. 47, 57; INTERNATIONAL TEXTBOOK CO. V. PIGG, 217 U.S.
91; AERO MAYFLOWER TRANSIT CO. V. COMMISSIONERS, 332 U.S. 495.  NOR CAN
THE COUNTY INDIRECTLY ENFORCE THE UNCONSTITUTIONAL PRIVILEGE TAX OF
SEC. 4 BY DENYING THE DRIVER'S PERMIT WITHOUT EXPLANATION.  THUS IT IS
CLEAR THAT THIS ORDINANCE PURPORTS TO IMPOSE AN UNCONSTITUTIONAL BURDEN
ON FOREIGN COMMERCE.  WHILE IT IS POSSIBLE THAT APPELLANTS' PERMITS
WERE DENIED FOR SOME OTHER, AND VALID, REASON, ONLY THE COUNTY (NOT
APPELLANTS) COULD SHOW THAT THIS IS TRUE.  SINCE THE COUNTY HAS OFFERED
NO EXPLANATION FOR PROHIBITING APPELLANTS FROM ENGAGING IN FOREIGN
COMMERCE WITHIN THE COUNTY, THE JUDGMENT SHOULD BE REVERSED AND THE
CAUSE REMANDED FOR SUCH ACTION AS MIGHT BE DEEMED DESIRABLE AND NOT
INCONSISTENT WITH THIS OPINION. 

FN1  "SECTION 9.  (AMENDED BY ORD. NO. 609 (NEW SERIES) ADOPTED 5-12
47; AND AGAIN AMENDED BY ORD. 958 (NEW SERIES) ADOPTED 4-10-50, TO READ
AS FOLLOWS:)  IT SHALL BE UNLAWFUL FOR ANY PERSON TO DRIVE OR TO BE IN
ACTUAL PHYSICAL CONTROL OF ANY TAXICAB IN THE UNINCORPORATED AREA OF
THE COUNTY OF SAN DIEGO WITHOUT FIRST OBTAINING A PERMIT IN WRITING SO
TO DO FROM THE SHERIFF OF THE COUNTY OF SAN DIEGO. 

"APPLICANTS FOR SUCH PERMITS SHALL FILE APPLICATIONS THEREFOR WITH
THE SHERIFF OF THE COUNTY OF SAN DIEGO ON A FORM FURNISHED BY THE
SHERIFF WHICH, WHEN COMPLETED, WILL CONTAIN FULL PERSONAL INFORMATION
CONCERNING THE APPLICANT. 

"UPON OBTAINING A PERMIT AS HEREIN REQUIRED THE HOLDER OF SUCH PERMIT
SHALL BE ENTITLED TO AN IDENTIFICATION CARD OF SUCH DESIGN, AND BEARING
SUCH NUMBER AS THE SHERIFF MAY PRESCRIBE, UPON PAYMENT OF A FEE OF
$1.00 ANNUALLY, THEREFOR, WHICH SHALL BE PAID BY THE APPLICANT TO THE
TAX COLLECTOR AND SHALL BE DUE ON THE 1ST DAY OF JUNE OF EACH YEAR. 
SUCH CARD SHALL BE CARRIED BY THE PERMITTEE DURING ALL BUSINESS HOURS
AND SHALL NOT BE TRANSFERABLE. 

"EACH APPLICANT FOR A PERMIT SHALL BE EXAMINED BY THE SHERIFF AS TO
HIS KNOWLEDGE OF THE PROVISIONS OF THIS ORDINANCE, THE VEHICLE CODE,
TRAFFIC REGULATIONS AND THE GEOGRAPHY OF THE COUNTY, AND IF THE RESULT
OF THE EXAMINATION IS UNSATISFACTORY HE SHALL BE REFUSED A PERMIT.  THE
SHERIFF MAY DENY THE APPLICATION OR HAVING ISSUED THE PERMIT MAY REVOKE
THE SAME IF THE SHERIFF SHALL DETERMINE THAT THE APPLICANT OR TAXICAB
DRIVER IS OF BAD MORAL CHARACTER OR IS GUILTY OF VIOLATION OF ANY OF
THE PROVISIONS OF THIS ORDINANCE OR OF ANY LAWFUL REGULATION
PROMULGATED PURSUANT THERETO OR HAS BEEN CONVICTED OF ANY OFFENSE
INVOLVING MORAL TURPITUDE  ...  ." 

FN2  SEE CAL. PENAL CODE, SEC. 1466; CAL. CONST., ART. VI, SEC. 4;
PEOPLE V. MCKAMY, 168 CAL. 531, 143 P. 752; PEOPLE V. REED, 13 CAL.
APP. 2D 39, 56 P.2D 240. 

FN3  OPINION OF THE SUPERIOR COURT, APPELLATE DEPARTMENT, 101 CAL.
APP. 2D SUPP. AT 914, 226 P.2D AT 89. 

FN4  SINCE APPELLANTS ARE COMPLAINING OF THE DENIAL OF THE PERMITS,
NOT OF EXACTION OF THE $1 FEE, WE ASSUME, WITHOUT DECIDING, THAT SAN
DIEGO COUNTY CAN CONSTITUTIONALLY REQUIRE A $1 FEE FOR THE
IDENTIFICATION CARD, ON THE THEORY THAT THE $1 IS REASONABLY CALCULATED
TO REIMBURSE THE COUNTY FOR THE COSTS OF ADMINISTERING ITS VALID
TRAFFIC REGULATIONS. 

FN5  UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, 211-212: 

"IN THE ABSENCE OF APPLICABLE FEDERAL REGULATION, A STATE MAY IMPOSE
NON-DISCRIMINATORY REGULATIONS ON THOSE ENGAGED IN FOREIGN COMMERCE
'FOR THE PURPOSE OF INSURING THE PUBLIC SAFETY AND CONVENIENCE; ...  A
LICENSE FEE NO LARGER IN AMOUNT THAN IS REASONABLY REQUIRED TO DEFRAY
THE EXPENSE OF ADMINISTERING THE REGULATIONS MAY BE DEMANDED.'  SPROUT
V. SOUTH BEND, 277 U.S. 163, 169." 

FN6  BECAUSE THE REGULATION HERE ATTACKED SHOULD FALL IN ANY EVENT,
IT IS NOT NECESSARY TO CONSIDER WHAT, IF ANY, EFFECT THE EXISTING
FEDERAL LEGISLATION MIGHT HAVE ON THE VALIDITY OF THIS ORDINANCE.  SEE
49 U.S.C. (1946 ED.)  SEC.  303(B)(2).  SEE ALSO 49 CFR (1949 ED.) 
SEC.  192.2. 

FN7  SOUTH CAROLINA STATE HIGHWAY DEPARTMENT V. BARNWELL BROS., INC.,
303 U.S. 177.  CF.  MORF V. BINGAMAN, 298 U.S. 407; CENTRAL GREYHOUND
LINES, INC. V. MEALEY, 334 U.S. 653. 

FN8  THE OPINION READS IN PART:  "THE DEFENDANTS  ...  ADVANCE THE
FOLLOWING CONTENTIONS:  ... THAT THE FIFTY DOLLAR LICENSE FEE IS AN
UNREASONABLE BURDEN ON FOREIGN COMMERCE  ...  .  THE DEFENDANTS CONTEND
THAT THE FIFTY DOLLAR ANNUAL LICENSE FEE IS AN UNREASONABLE BURDEN ON
FOREIGN COMMERCE.  THERE IS NO EVIDENCE IN THE STIPULATED FACTS AS TO
THE COST OF ENFORCING THE ORDINANCE, AND, IN THE ABSENCE OF SUCH
EVIDENCE, THE COURT WILL ASSUME THAT THE FEE WAS REASONABLE."  THIS
OBJECTION WAS PRESSED THROUGHOUT THE APPEAL IN THE SUPERIOR COURT AND
IN THIS COURT. 

FN9  THE SUPERIOR COURT OPINION REFERS TO BAD MORAL CHARACTER AS A
PROPER GROUND FOR DENIAL OF PERMITS.  WITHOUT A RECORD SHOWING AS TO
THE FACTS UPON WHICH THAT CONCLUSION IS BASED, WE CANNOT APPRAISE THE
SIGNIFICANCE OF THE COMMENT. 

FN10  "SECTION 4.  (AMENDED BY ORD. NO. 958 ADOPTED 4-10-50, AND
AMENDED AGAIN BY ORD. NO. 964 (NEW SERIES) ADOPTED 5-22-50 TO READ AS
FOLLOWS:)  WITHIN 10 DAYS FROM THE EFFECTIVE DATE OF THIS ORDINANCE
EVERY TAXICAB OPERATOR SHALL APPLY TO THE SHERIFF AND PROCURE FROM THE
TAX COLLECTOR A LICENSE AND PAY AN ANNUAL LICENSE FEE OF $50.00 (PLUS
$1.00 PER YEAR PER TAXICAB), WHICH SHALL BE PAID BY THE APPLICANT TO
THE TAX COLLECTOR AND SHALL BE DUE ON THE FIRST DAY OF JUNE OF EACH
YEAR.  LICENSES ISSUED SUBSEQUENT TO THE FIRST DAY OF SEPTEMBER, THE
FIRST DAY OF DECEMBER, AND THE FIRST DAY OF MARCH SHALL BE ISSUED AT A
QUARTERLY REDUCTION OF $12.50 PER QUARTER  ...  ." 
..END :









MEMPHIS STEAM LAUNDRY CLEANER, INC. V. STONE 342 U.S. 389 


NO. 253.  ARGUED DECEMBER 3, 1951.  - DECIDED MARCH 3, 1952.  - 53 SO.
2D 89, REVERSED. 


A MISSISSIPPI "PRIVILEGE TAX," LAID UPON EACH PERSON "SOLICITING
BUSINESS" FOR A LAUNDRY NOT LICENSED IN THE STATE, HELD INVALID UNDER
THE COMMERCE CLAUSE, AS APPLIED TO APPELLANT, A FOREIGN CORPORATION
OPERATING A LAUNDRY AND CLEANING ESTABLISHMENT IN TENNESSEE AND DOING
NO BUSINESS IN MISSISSIPPI OTHER THAN SENDING ITS TRUCKS THERE TO
SOLICIT BUSINESS, PICK UP, DELIVER, AND COLLECT FOR, LAUNDRY AND
CLEANING.  PP. 398-395. 

1.  IF THE TAX BE IMPOSED UPON THE PRIVILEGE OF SOLICITING INTERSTATE
BUSINESS, IT STANDS ON NO BETTER FOOTING THAN A TAX ON THE PRIVILEGE OF
DOING INTERSTATE BUSINESS, AND IT IS INVALID UNDER THE COMMERCE
CLAUSE.  PP. 392-393. 

2.  IF THE TAX BE IMPOSED ON THE PRIVILEGE OF CONDUCTING INTRASTATE
ACTIVITIES IN MISSISSIPPI, IT IS INVALID AS ONE DISCRIMINATING AGAINST
INTERSTATE COMMERCE - BECAUSE LAUNDRIES NOT LICENSED IN THE STATE ARE
TAXED $50 PER TRUCK FOR SUCH ACTIVITIES, WHEREAS LAUNDRIES LICENSED IN
THE STATE ARE TAXED ONLY $8 PER TRUCK.  PP. 394-395. 

MEMPHIS STEAM LAUNDRY CLEANER, INC. V. STONE, CHAIRMAN, STATE TAX
COMMISSION. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

THE SUPREME COURT OF MISSISSIPPI SUSTAINED A "PRIVILEGE TAX" LEVIED
ON APPELLANT UNDER MISS.  LAWS 1944, C. 138, SECS. 3, 45, AGAINST A
CLAIM THAT IT VIOLATED THE COMMERCE CLAUSE.  53 SO. 2D 89.  ON APPEAL
TO THIS COURT, REVERSED, P. 395. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER A MISSISSIPPI TAX LAID UPON THE
PRIVILEGE OF SOLICITING BUSINESS FOR A LAUNDRY NOT LICENSED IN THAT
STATE INFRINGES THE COMMERCE CLAUSE.  (FN1) 

APPELLANT OPERATES A LAUNDRY AND CLEANING ESTABLISHMENT IN MEMPHIS,
TENNESSEE.  IN SERVING THE AREA SURROUNDING MEMPHIS, APPELLANT SENDS
TEN OF ITS TRUCKS INTO EIGHT MISSISSIPPI COUNTIES WHERE ITS DRIVERS
PICK UP, DELIVER AND COLLECT FOR LAUNDRY AND CLEANING AND SEEK TO
ACQUIRE NEW CUSTOMERS.   APPELLEE, WHO IS CHAIRMAN OF THE STATE TAX
COMMISSION OF THE STATE OF MISSISSIPPI, DEMANDED THAT APPELLANT PAY
$500 UNDER THE FOLLOWING PROVISIONS OF THE MISSISSIPPI "STATE-WIDE
PRIVILEGE TAX LAW OF 1944":  (FN2) 

"SEC. 3.  EVERY PERSON DESIRING TO ENGAGE IN ANY BUSINESS, OR
EXERCISE ANY PRIVILEGE HEREAFTER SPECIFIED SHALL FIRST, BEFORE
COMMENCING SAME, APPLY FOR, PAY FOR, AND PROCURE FROM THE STATE TAX
COMMISSIONER OR COMMISSIONER OF INSURANCE, A PRIVILEGE LICENSE
AUTHORIZING HIM TO ENGAGE IN THE BUSINESS OR EXERCISE THE PRIVILEGE
SPECIFIED THEREIN, AND THE AMOUNT OF TAX SHOWN IN THE FOLLOWING
IN THE BUSINESS SET OUT THEREIN." 

"SEC. 45.  UPON EACH PERSON DOING BUSINESS AS A TRANSIENT VENDOR, OR
DEALER, AS DEFINED IN THIS SECTION, AND UPON WHICH A PRIVILEGE TAX IS
NOT SPECIFICALLY IMPOSED BY ANOTHER SECTION OF THIS ACT, A TAX FOR EACH
COUNTY ACCORDING TO THE FOLLOWING SCHEDULES: 

     *         *         *         *         * 

"(T) UPON EACH PERSON SOLICITING BUSINESS FOR A LAUNDRY NOT LICENSED
IN THIS STATE AS SUCH, IN EACH COUNTY.  $50.00. 

     *     *         *         *         * 

"(Y) PROVIDED HOWEVER, THAT WHERE ANY PERSON SUBJECT TO THE PAYMENT
OF THE TAX IMPOSED IN THIS SECTION, MAKES USE OF MORE THAN ONE VEHICLE
IN CARRYING ON SUCH BUSINESS, THE TAX HEREIN IMPOSED SHALL BE PAID ON
EACH VEHICLE USED IN CARRYING ON SUCH BUSINESS." 

AFTER PAYING THE $500 TAX AS DEMANDED TO PREVENT ARREST OF ITS
DRIVERS AND SEIZURE OF ITS TEN TRUCKS, APPELLANT SUED FOR REFUND IN A
STATE COURT, CLAIMING THAT THE MISSISSIPPI TAX ACT WAS NOT APPLICABLE
TO ITS OPERATIONS AND THAT, IF SO APPLIED, THE TAX WOULD VIOLATE THE
COMMERCE CLAUSE.  JUDGMENT WAS ENTERED FOR APPELLANT IN THE TRIAL COURT
BUT THE MISSISSIPPI SUPREME COURT REVERSED, HOLDING THAT APPELLANT'S
DRIVERS WERE "TRANSIENT VENDORS OR DEALERS" WITHIN THE MEANING OF THE
STATUTE AND THAT APPLICATION OF THE TAX TO APPELLANT DID NOT CONFLICT
WITH THE COMMERCE CLAUSE.  (FN3)  THE CASE IS HERE ON APPEAL.  28
U.S.C. (SUPP. IV) SEC. 1257(2). 

IN PASSING UPON THE VALIDITY OF A STATE TAX CHALLENGED UNDER THE
COMMERCE CLAUSE, WE FIRST LOOK TO THE "OPERATING INCIDENCE" OF THE
TAX.  (FN4)  THE MISSISSIPPI ACT REQUIRES A "PRIVILEGE LICENSE" AND
IMPOSES A "PRIVILEGE TAX" UPON APPELLANT'S EMPLOYEES "SOLICITING
BUSINESS."  THE MISSISSIPPI SUPREME COURT DESCRIBED THE TAX AS
FOLLOWS: 

"  ...  THE TAX INVOLVED HERE IS NOT A TAX ON INTERSTATE COMMERCE,
BUT A TAX ON A PERSON SOLICITING BUSINESS FOR A LAUNDRY NOT LICENSED IN
THIS STATE, A LOCAL ACTIVITY WHICH APPLIES TO RESIDENTS AND NON
RESIDENTS ALIKE."  (FN5) 

THE STATE MAY DETERMINE FOR ITSELF THE OPERATING INCIDENCE OF ITS
TAX.  BUT IT IS FOR THIS COURT TO DETERMINE WHETHER THE TAX, AS
CONSTRUED BY THE HIGHEST COURT OF THE STATE, IS OR IS NOT "A TAX ON
INTERSTATE COMMERCE."  (FN6) 

IT WOULD APPEAR FROM PORTIONS OF THE OPINION OF THE COURT BELOW THAT
THE TAX IS LAID UPON THE PRIVILEGE OF SOLICITING INTERSTATE BUSINESS ON
THE THEORY THAT SOLICITATION OF CUSTOMERS FOR INTERSTATE COMMERCE IS A
LOCAL ACTIVITY SUBJECT TO STATE TAXATION.  HOWEVER, THE OPINION BELOW
MAY ALSO BE READ AS CONSTRUING THE STATUTORY TERM "SOLICITING" MORE
BROADLY, THEREBY RESTING THE TAX UPON APPELLANT'S ACTIVITIES APART FORM
SOLICITING NEW CUSTOMERS IN MISSISSIPPI, NAMELY THE PICK UP AND
DELIVERY OF LAUNDRY AND CLEANING ON REGULAR ROUTES WITHIN THE STATE. 
EACH CONSTRUCTION OF THE STATUTE RAISES DIFFERENT CONSIDERATIONS.  BUT
CLARIFICATION OF THE OPERATING INCIDENCE OF THE TAX IS NOT REQUIRED FOR
DISPOSITION OF THIS CASE SINCE WE FIND THAT THE TAX VIOLATES THE
COMMERCE CLAUSE UNDER EITHER READING OF THE STATUTE. 

                                      I. 

IN THE LONG LINE OF "DRUMMER" CASES, BEGINNING WITH ROBBINS V. SHELBY
COUNTY TAXING DISTRICT, 120 U.S. 489 (1887), (FN7) THIS COURT HAS HELD
THAT A TAX IMPOSED UPON THE SOLICITATION OF INTERSTATE BUSINESS IS A
TAX UPON INTERSTATE COMMERCE ITSELF.  (FN8)  WHETHER OR NOT
SOLICITATION OF INTERSTATE BUSINESS MAY BE REGARDED AS A LOCAL INCIDENT
OF INTERSTATE COMMERCE, THE COURT HAS NOT PERMITTED STATE TAXATION TO
CARVE OUT THIS INCIDENT FROM THE INTEGRAL ECONOMIC PROCESS OF
INTERSTATE COMMERCE.   (FN9)  AS THE COURT NOTED LAST TERM IN A CASE
INVOLVING DOOR-TO-DOOR SOLICITATION OF INTERSTATE BUSINESS, "INTERSTATE
COMMERCE ITSELF KNOCKS ON THE LOCAL DOOR."  (FN10) 

IF THE MISSISSIPPI TAX IS IMPOSED UPON THE PRIVILEGE OF SOLICITING
INTERSTATE BUSINESS, THE TAX STANDS ON NO BETTER FOOTING THAN A TAX
UPON THE PRIVILEGE OF DOING INTERSTATE BUSINESS.  A TAX SO IMPOSED
CANNOT STAND UNDER THE COMMERCE CLAUSE.  (FN11)  SPECTOR MOTOR SERVICE
V. O'CONNOR, 340 U.S. 602, 608-609 (1951), AND CASES CITED THEREIN. 

                               II. 

ON THE ASSUMPTION THAT THE TAX IS IMPOSED UPON APPELLANT'S
MISSISSIPPI ACTIVITIES OF PICKING UP AND DELIVERING LAUNDRY AND
CLEANING, THE "PEDDLER" CASES ARE INVOKED IN SUPPORT OF THE TAX.  UNDER
THAT LINE OF DECISIONS, (FN12) THIS COURT HAS SUSTAINED STATE TAXATION
UPON ITINERANT HAWKERS AND PEDDLERS ON THE GROUND THAT THE LOCAL SALE
AND DELIVERY OF GOODS IS AN ESSENTIALLY INTRASTATE PROCESS WHETHER A
RETAILER OPERATES FROM A FIXED LOCATION OR FROM A WAGON.  HOWEVER,
ASSUMING FOR THE PURPOSES OF THIS CASE THAT MISSISSIPPI IMPOSES ITS $50
PER TRUCK TAX ONLY UPON THE PRIVILEGE OF CONDUCTING INTRASTATE
ACTIVITIES, THE TAX MUST BE HELD INVALID AS ONE DISCRIMINATING AGAINST
INTERSTATE COMMERCE.  (FN13) 

THE $50 PER TRUCK TAX IS APPLICABLE ONLY TO VEHICLES USED BY A PERSON
"SOLICITING BUSINESS FOR A LAUNDRY NOT LICENSED IN THIS STATE AS
SUCH."  LAUNDRIES LICENSED IN MISSISSIPPI PAY A FIXED FEE TO THE
MUNICIPALITY IN WHICH LOCATED, PLUS A TAX OF $8 PER TRUCK UPON EACH
TRUCK USED IN OTHER MUNICIPALITIES.  (FN14)  AS A RESULT, IF APPELLANT
"SOLICITS" BUSINESS IN A MISSISSIPPI MUNICIPALITY, IT MUST PAY A TAX OF
$50 PER TRUCK WHILE A COMPETITOR LOCATED IN ANOTHER MISSISSIPPI
LOCALITY MUST PAY A TAX OF ONLY $8 PER TRUCK.  THE "PEDDLER" CASES ARE
INAPPOSITE UNDER SUCH A SHOWING OF DISCRIMINATION SINCE THEY SUPPORT
STATE TAXATION ONLY WHERE NO DISCRIMINATION AGAINST INTERSTATE COMMERCE
APPEARS EITHER UPON THE FACE OF THE TAX LAWS OR IN THEIR PRACTICAL
OPERATION.  (FN15) 

TO SUM UP, WE HOLD THAT THE TAX BEFORE US INFRINGES THE COMMERCE
CLAUSE UNDER EITHER INTERPRETATION OF THE OPERATING INCIDENCE OF THE
TAX.  THE COMMERCE CLAUSE CREATED THE NATION-WIDE AREA OF FREE TRADE
ESSENTIAL TO THIS COUNTRY'S ECONOMIC WELFARE BY REMOVING STATE LINES AS
IMPEDIMENTS TO INTERCOURSE BETWEEN THE STATES.  (FN16)  THE TAX IMPOSED
IN THIS CASE MADE THE MISSISSIPPI STATE LINE INTO A LOCAL OBSTRUCTION
TO THE FLOW OF INTERSTATE COMMERCE THAT CANNOT STAND UNDER THE COMMERCE
CLAUSE.  REVERSED. 

FN1  U.S. CONST., ART. I, SEC. 8. 

FN2  LAWS OF MISSISSIPPI, 1944, C. 138, SECS. 3, 45. 

FN3 53 SO. 2D 89 (1951).  THE MISSISSIPPI SUPREME COURT ALSO REJECTED
APPELLANT'S CLAIMS UNDER THE FOURTEENTH AMENDMENT.  WE DO NOT REACH
THESE ISSUES UNDER OUR DISPOSITION OF THE CASE. 

FN4  SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602 (1951). 

FN5  53 SO. 2D AT 90. 

FN6  MCLEOD V. DILWORTH CO., 322 U.S. 327 (1944); CRENSHAW V.
ARKANSAS, 227 U.S. 389, 400-401 (1913). 

FN7  CASES IN THIS COURT FOLLOWING THE ROBBINS DECISION INCLUDE:
CORSON V. MARYLAND, 120 U.S. 502 (1887); ASHER V. TEXAS, 128 U.S. 129
(1888); STOUTENBURGH V. HENNICK, 129 U.S. 141 (1889); BRENNAN V.
TITUSVILLE, 153 U.S. 289 (1894); STOCKARD V. MORGAN, 185 U.S. 27
(1902); CALDWELL V. NORTH CAROLINA, 187 U.S. 622 (1903); REARICK V.
PENNSYLVANIA, 203 U.S. 507 (1906); INTERNATIONAL TEXTBOOK CO. V. PIGG,
217 U.S. 91 (1910); DOZIER V. ALABAMA, 218 U.S. 124 (1910); CRENSHAW V.
ARKANSAS, NOTE 6, SUPRA; ROGERS V. ARKANSAS, 227 U.S. 401 (1913);
STEWART V. MICHIGAN, 232 U.S. 665 (1914); DAVIS V. VIRGINIA, 236 U.S.
697 (1915); CHENEY BROS. CO. V. MASSACHUSETTS, 246 U.S. 147 (1918);
REAL SILK HOSIERY MILLS V. PORTLAND, 268 U.S. 325 (1925); BEST & CO. V.
MAXWELL, 311 U.S. 454 (1940); NIPPERT V. RICHMOND, 327 U.S. 416
(1946). 

FN8  "THE NEGOTIATION OF SALES OF GOODS WHICH ARE IN ANOTHER STATE,
FOR THE PURPOSE OF INTRODUCING THEM INTO THE STATE IN WHICH THE
NEGOTIATION IS MADE, IS INTERSTATE COMMERCE."  120 U.S. AT 497; REAL
SILK HOSIERY MILLS V. PORTLAND, NOTE 7, SUPRA, AT 335. 

FN9  NIPPERT V. RICHMOND, NOTE 7, SUPRA, AT 422-423. 

FN10  BREARD V. ALEXANDRIA, 341 U.S. 622, 636 (1951).  IN SUSTAINING
THE ORDINANCE BEFORE IT AS ONE THAT WAS NEITHER AN ADDED FINANCIAL
BURDEN ON SALES IN COMMERCE NOR AN EXACTION FOR THE PRIVILEGE OF DOING
INTERSTATE COMMERCE, THE COURT MADE THE FOLLOWING STATEMENT PERTINENT
TO THE INSTANT CASE: 

"WHILE TAXATION AND LICENSING OF HAWKING OR PEDDLING, DEFINED AS
SELLING AND DELIVERING IN THE STATE, HAS LONG BEEN THOUGHT TO SHOW NO
VIOLATION OF THE COMMERCE CLAUSE, SOLICITATION OF ORDERS WITH
SUBSEQUENT INTERSTATE SHIPMENT HAS BEEN IMMUNE FROM SUCH AN EXACTION." 
341 U.S. AT 638. 

FN11  IN MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, 58 (1940), THE
COURT SUSTAINED A TAX "CONDITIONED UPON A LOCAL ACTIVITY, DELIVERY OF
GOODS WITHIN THE STATE UPON THEIR PURCHASE FOR CONSUMPTION."  IT WAS IN
THAT CONTEXT THAT ROBBINS V. SHELBY COUNTY TAXING DISTRICT, SUPRA, WAS
REFERRED TO AS RESTING UPON DISCRIMINATION INHERENT IN FIXED-SUM
LICENSE TAXES.  309 U.S. AT 56-57; BEST & CO. V. MAXWELL, NOTE 7,
SUPRA, AT 455-456; NIPPERT V. RICHMOND, NOTE 7, SUPRA, AT 424-425. 
COMPARE FREEMAN V. HEWIT, 329 U.S. 249, 257-258 (1946). 

FN12  IN THE LEADING OPINION, EMERT V. MISSOURI, 156 U.S. 296 (1895),
THE COURT REAFFIRMED MACHINE CO. V. GAGE, 100 U.S. 676 (1880), AND
OTHER EARLIER CASES.  SUBSEQUENT ADDITIONS TO THE LINE OF "PEDDLER
CASES" INCLUDE:  BACCUS V. LOUISIANA, 232 U.S. 334 (1914); WAGNER V.
COVINGTON, 251 U.S. 95 (1919); CASKEY BAKING CO. V. VIRGINIA, 313 U.S.
117 (1941). 

FN13  NIPPERT V. RICHMOND, NOTE 7, SUPRA; BEST & CO. V. MAXWELL, NOTE
7, SUPRA; HALE V. BIMCO TRADING, INC., 306 U.S. 375 (1939); WALLING V.
MICHIGAN, 116 U.S. 446, 460-461 (1886); WEBBER V. VIRGINIA, 103 U.S.
344 (1881); GUY V. BALTIMORE, 100 U.S. 434 (1880); WELTON V. MISSOURI,
91 U.S. 275 (1876). 

FN14  LAWS OF MISSISSIPPI, 1944, C. 137, SEC. 110, IMPOSES THE
FOLLOWING TAX: 

"UPON EACH PERSON OPERATING A LAUNDRY OTHER THAN A HAND LAUNDRY, AS
FOLLOWS: 

IN MUNICIPALITIES OF CLASS 1.  $120.00 

IN MUNICIPALITIES OF CLASS 2.    80.00 

IN MUNICIPALITIES OF CLASSES 3 AND 4.  60.00 

IN MUNICIPALITIES OF CLASSES 5, 6, 7 AND ELSEWHERE IN THE COUNTY. 
32.00 

UPON EACH TRUCK OR OTHER VEHICLE FOR SUCH LAUNDRY IN A MUNICIPALITY
OTHER THAN WHERE THE LAUNDRY IS LOCATED.  8.00" 

FN15  CASKEY BAKING CO. V. VIRGINIA, NOTE 12, SUPRA, AT 119-120;
WAGNER V. COVINGTON, NOTE 12, SUPRA, AT 102; EMERT V. MISSOURI, NOTE
12, SUPRA, AT 311; MACHINE CO. V. GAGE, NOTE 12, SUPRA, AT 679. 

FN16  GIBBONS V. OGDEN, 9 WHEAT.  1, 189 (1824); HOOD & SONS V.
DUMOND, 336 U.S. 525, 533-535, 538-539 (1949). 

MR. JUSTICE BLACK DISSENTS. 
..END :




FIRST NATIONAL BANK OF CHICAGO V. UNITED AIR LINES, INC. 342 U.S. 396. 


NO. 349.  ARGUED JANUARY 8, 1952.  - DECIDED MARCH 3, 1952.  - 190 F.2D
493, REVERSED. 


IN A SUIT BROUGHT IN A FEDERAL DISTRICT COURT IN ILLINOIS, ON GROUNDS
OF DIVERSITY OF CITIZENSHIP, TO RECOVER UNDER THE UTAH WRONGFUL DEATH
STATUTE FOR A DEATH WHICH OCCURRED IN UTAH, AN ILLINOIS STATUTE
PROVIDING THAT "NO ACTION SHALL BE BROUGHT OR PROSECUTED IN THIS STATE
TO RECOVER DAMAGES FOR A DEATH OCCURRING OUTSIDE OF THIS STATE WHERE A
RIGHT OF ACTION FOR SUCH DEATH EXISTS UNDER THE LAWS OF THE PLACE WHERE
SUCH DEATH OCCURRED AND SERVICE OF PROCESS IN SUCH SUIT MAY BE HAD UPON
THE DEFENDANT IN SUCH PLACE" HELD INVALID UNDER THE FULL FAITH AND
CREDIT CLAUSE OF THE FEDERAL CONSTITUTION AND NO BAR TO THE SUIT. 
HUGHES V. FETTER, 341 U.S. 609.  PP. 396-398. 

FIRST NATIONAL BANK OF CHICAGO, EXECUTOR, V. UNITED AIR LINES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

BECAUSE OF ILL. REV. STAT., C. 70, SEC. 2, A FEDERAL DISTRICT COURT
IN ILLINOIS GAVE JUDGMENT FOR DEFENDANT IN A SUIT TO RECOVER UNDER THE
UTAH WRONGFUL DEATH STATUTE FOR A DEATH WHICH OCCURRED IN UTAH.  THE
COURT OF APPEALS AFFIRMED.  190 F.2D 493.  THIS COURT DENIED
CERTIORARI, 341 U.S. 903, BUT LATER GRANTED CERTIORARI.  342 U.S. 875. 
REVERSED, P. 398. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

JOHN LOUIS NELSON WAS KILLED WHEN ONE OF RESPONDENT'S AIRLINERS
CRASHED IN UTAH.  CLAIMING $200,000 UNDER THE UTAH WRONGFUL DEATH
STATUTE, PETITIONER BROUGHT THIS ACTION IN A UNITED STATES DISTRICT
COURT IN ILLINOIS.  DECEDENT PRIOR TO HIS DEATH WAS A RESIDENT AND
CITIZEN OF ILLINOIS; PETITIONER, HIS EXECUTOR, IS AN ILLINOIS BANK; AND
RESPONDENT, UNITED AIR LINES, INC., IS A DELAWARE CORPORATION DOING
BUSINESS IN ILLINOIS.  SINCE THE JURISDICTIONAL AMOUNT AND DIVERSITY OF
CITIZENSHIP REQUIREMENTS HAVE BEEN MET, THE CASE IS PROPERLY TRIABLE
UNDER 28 U.S.C. SEC. 1332 UNLESS CH. 70, SEC. 2 OF THE ILLINOIS REVISED
STATUTES BARS THE ACTION.  THIS ILLINOIS LAW PROVIDES:

"NO ACTION SHALL BE BROUGHT OR PROSECUTED IN THIS STATE TO RECOVER
DAMAGES FOR A DEATH OCCURRING OUTSIDE OF THIS STATE WHERE A RIGHT OF
ACTION FOR SUCH DEATH EXISTS UNDER THE LAWS OF THE PLACE WHERE SUCH
DEATH OCCURRED AND SERVICE OF PROCESS IN SUCH SUIT MAY BE HAD UPON THE
DEFENDANT IN SUCH PLACE." 

THE DISTRICT COURT AND COURT OF APPEALS, RELYING ON THE DOCTRINE
DECLARED IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, AS DISCUSSED AND
APPLIED IN LATER CASES, (FN1) HELD THAT IN A DIVERSITY CASE SUCH AS
THIS THE STATE STATUTE WAS BINDING ON THE FEDERAL AS WELL AS STATE
COURTS IN ILLINOIS AND CONSTITUTED A BAR MAINTENANCE OF THIS ACTION. 
(FN2)  IN SO DOING, THEY REJECTED TWO CONSTITUTIONAL CONTENTIONS MADE
BY PETITIONER:  (1) CONGRESS HAVING GRANTED DIVERSITY JURISDICTION TO
FEDERAL DISTRICT COURTS PURSUANT TO POWER GRANTED BY ARTICLE III OF THE
CONSTITUTION, THAT JURISDICTION CANNOT BE ABRIDGED OR DESTROYED BY THE
ILLINOIS STATUTE; (2) THE ILLINOIS STATUTE VIOLATES THE FULL FAITH AND
CREDIT CLAUSE OF THE UNITED STATES CONSTITUTION (ART. IV, SEC. 1) IN
PROVIDING THAT CLAIMS FOR UTAH DEATHS SHALL NOT BE ENFORCED IN ILLINOIS
STATE COURTS WHERE SERVICE ON DEFENDANTS COULD BE HAD IN UTAH.  WE NEED
NOT DISCUSS THIS FIRST CONSTITUTIONAL CONTENTION OR THE ERIE R. CO. V.
TOMPKINS PROBLEMS PRESENTED BY IT, FOR WE RECENTLY HELD IN HUGHES V.
FETTER, 341 U.S. 609, THAT A WISCONSIN STATUTE, MUCH LIKE THAT OF
ILLINOIS, DID VIOLATE THE FULL FAITH AND CREDIT CLAUSE.  IT WAS TO
CONSIDER THIS FULL FAITH AND CREDIT QUESTION WITH REFERENCE TO THE
ILLINOIS STATUTE THAT WE GRANTED CERTIORARI.  342 U.S. 875. 

THE WISCONSIN STATUTE INVALIDATED IN HUGHES V. FETTER, SUPRA, BARRED
SUIT IN THE WISCONSIN COURTS FOR ANY WRONGFUL DEATH CAUSED OUTSIDE THE
STATE.  THE ILLINOIS STATUTE BEFORE US TODAY IS THE EXACT DUPLICATE OF
THE WISCONSIN STATUTE WITH THE SINGLE EXCEPTION THAT SUIT IS PERMITTED
IN ILLINOIS UNDER ANOTHER STATE'S WRONGFUL DEATH STATUTE IF SERVICE OF
PROCESS CANNOT BE HAD ON THE DEFENDANT IN THE STATE WHERE THE DEATH WAS
BROUGHT ABOUT.  THAT ILLINOIS IS WILLING FOR ITS COURTS TO TRY SOME OUT
OF-STATE DEATH ACTIONS IS NO REASON FOR ITS REFUSAL TO GRANT FULL FAITH
AND CREDIT AS TO OTHERS.   THE REASONS SUPPORTING OUR INVALIDATION OF
WISCONSIN'S STATUTE APPLY WITH EQUAL FORCE TO THAT OF ILLINOIS.  THIS
IS TRUE ALTHOUGH ILLINOIS AGREES TO TRY CASES WHERE SERVICE CANNOT BE
OBTAINED IN ANOTHER STATE.  WHILE WE SAID IN HUGHES V. FETTER THAT IT
WAS RELEVANT THAT WISCONSIN MIGHT BE THE ONLY STATE IN WHICH SERVICE
COULD BE HAD ON ONE OF THE DEFENDANTS, WE WERE CAREFUL TO POINT OUT
THAT THIS FACT WAS NOT CRUCIAL.  NOR IS IT CRUCIAL HERE THAT ILLINOIS
ONLY EXCLUDES CASES THAT CAN BE TRIED IN OTHER STATES.  WE HOLD AGAIN
THAT THE FULL FAITH AND CREDIT CLAUSE FORBIDS SUCH EXCLUSION.  THE
DISTRICT COURT SHOULD NOT HAVE DISMISSED THIS CASE.  REVERSED. 

FN1  E.G., ANGEL V. BULLINGTON, 330 U.S. 183; WOODS V. INTERSTATE
REALTY CO., 337 U.S. 535. 

FN2 190 F.2D 493.  THE COURT OF APPEALS CITED AND RELIED ON TWO OF
ITS FORMER HOLDINGS, TRUST CO. OF CHICAGO V. PENNSYLVANIA R. CO., 183
F.2D 640, AND MUNCH V. UNITED AIR LINES, 184 F.2D 630. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE MINTON JOINS, CONCURRING IN THE
RESULT. 

I PART COMPANY WITH THE COURT AS TO THE ROAD WE WILL TRAVEL TO REACH
A DESTINATION WHERE ALL AGREE WE WILL STOP, AT LEAST FOR THE NIGHT. 
BUT SOMETIMES THE PATH THAT WE ARE BEATING OUT BY OUR TRAVEL IS MORE
IMPORTANT TO THE FUTURE WAYFARER THAN THE PLACE IN WHICH WE CHOOSE TO
LODGE. 

THERE ARE TWO POSSIBLE ROUTES TO THE AGREED DESTINATION.  ONE
REQUIRES THAT A STATE STATUTE PRESCRIBING JURISDICTIONAL LIMITATIONS ON
ITS OWN COURTS BE DECLARED UNCONSTITUTIONAL - A PATH WHICH A CENTURY
AND A HALF OF PRECEDENT CONSTRAINS US TO AVOID IF ANOTHER WAY IS
AVAILABLE.  THIS, TOGETHER WITH ADHERENCE TO THE VIEWS EXPRESSED IN
DISSENT IN HUGHES V. FETTER, 341 U.S. 609, PERSUADES ME TO RESOLVE THE
ISSUE OF JURISDICTION OF FEDERAL COURTS BY REFERENCE TO THE ACT OF
CONGRESS WHICH CONFERS THAT JURISDICTION. 

WHETHER OF NOT ILLINOIS MAY VALIDLY CLOSE HER OWN COURTS TO
LITIGATION OF THIS KIND, ILLINOIS MOST ASSUREDLY CANNOT PRESCRIBE THE
SUBJECT MATTER JURISDICTION OF FEDERAL COURTS EVEN WHEN THEY SIT IN
THAT STATE.  CONGRESS ALREADY HAS DONE THIS, 28 U.S.C. SEC. 1332(A)(1),
AND STATE LAW IS POWERLESS TO ENLARGE, VARY, OR LIMIT THIS
REQUIREMENT.  THE PARTIES TO THIS CASE HAVE SHOWED THE DIVERSITY OF
CITIZENSHIP AND AMOUNT IN CONTROVERSY REQUIRED BY CONGRESS, AND
THEREFORE THE FEDERAL COURT, BY VIRTUE OF THE LAW OF ITS OWN BEING, HAS
JURISDICTION OF THEIR ACTION. 

THE SUGGESTION THAT ERIE R. CO. V. TOMPKINS, 304 U.S. 64, AND ITS
PROGENY DIMINISH THE JURISDICTION OF A FEDERAL COURT SITTING IN A
DIVERSITY CASE BY ASSIMILATING ANY LIMITATION THAT THE STATE MAY IMPOSE
ON HER OWN COURTS SEEMS TO CONFUSE THE LAW OF JURISDICTION WITH
SUBSTANTIVE LAW.  IN ERIE AND THE CASES WHICH HAVE FOLLOWED, THIS COURT
HAS GONE FAR IN REQUIRING THAT A FEDERAL COURT EXERCISING DIVERSITY
JURISDICTION APPLY THE SAME LAW AS WOULD BE APPLIED IF THE ACTION WERE
BROUGHT IN THE STATE COURTS.  BUT IN SO DOING THE COURT HAS BEEN
INTERPRETING THE RULES OF DECISION ACT, 28 U.S.C. SEC. 1652, WHICH
READS AS FOLLOWS: 

"THE LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE CONSTITUTION OR
TREATIES OF THE UNITED STATES OR ACTS OF CONGRESS OTHERWISE REQUIRE OR
PROVIDE, SHALL BE REGARDED AS RULES OF DECISION IN CIVIL ACTIONS IN THE
COURTS OF THE UNITED STATES, IN CASES WHERE THEY APPLY." 

IT IS INDEED FANCIFUL TO SUGGEST THAT A STATE STATUTE RELATING TO THE
POWER OF ITS OWN COURTS IS AN APPLICABLE "RULE OF DECISION" UNDER THIS
STATUTE, WHEN CONGRESS IN PASSING THE FEDERAL JURISDICTIONAL GRANT HAS
SPECIFICALLY "OTHERWISE REQUIRED AND PROVIDED."  28 U.S.C. SEC.
1332(A)(1).  THE PETITIONER ENTERS THE FEDERAL COURT NOT BY THE GRACE
OF THE LAWS OF ILLINOIS BUT BY THE GRACE OF THE LAWS OF THE UNITED
STATES. 

THE ESTABLISHMENT OF JURISDICTION IS, HOWEVER, THE BEGINNING AND NOT
THE END OF THE DECISION OF THE CASE IN THE TRIAL COURT.  WHAT LAW MUST
BE APPLIED IN ADJUDICATING THE SUBSTANTIVE RIGHTS OF THESE PARTIES? 
THE OPINION OF THE COURT IS SILENT ON THIS POINT, BUT ITS LINE OF
REASONING SEEMS TO IMPLY THAT THE FEDERAL TRIAL COURT MUST LOOK TO
ILLINOIS LAW FOR A CONFLICTS RULE WHICH WOULD GOVERN THIS KIND OF CASE
IF BROUGHT IN ILLINOIS COURTS.  SINCE ILLINOIS HAS, PURSUANT TO
STATUTE, REFUSED TO ENTERTAIN SUCH ACTIONS AS THIS, IT MIGHT BE
SUPPOSED THAT SUCH LAW WOULD BE HARD TO FIND. 

IN MY VIEW, THE FEDERAL COURT NO MORE DERIVES SUBSTANTIVE LAW FOR
THIS CASE FROM ILLINOIS THAN IT DOES ITS JURISDICTION.  FOR REGARDLESS
OF WHAT ILLINOIS MIGHT SAY ON THIS SUBJECT, THE CONSTITUTION HAS
"OTHERWISE PROVIDED."  I BELIEVE, AS EXPRESSED IN HUGHES V. FETTER,
THAT THE STATE WAS FREE TO REFUSE THIS CASE A FORUM, BUT, IF IT
UNDERTOOK TO ADJUDICATE THE RIGHTS OF THE PARTIES, THE CONSTITUTION
WOULD REQUIRE IT TO APPLY THE LAW OF UTAH, BECAUSE ALL ELEMENTS OF THE
WRONG ALLEGED HERE OCCURRED IN UTAH.  FOR THE ESSENCE OF THE FULL FAITH
AND CREDIT CLAUSE IS THAT CERTAIN TRANSACTIONS, WHEREVER IN THE UNITED
STATES THEY MAY BE LITIGATED, SHALL HAVE THE SAME LEGAL CONSEQUENCES AS
THEY WOULD HAVE IN THE PLACE WHERE THEY OCCURRED.  ORDER OF UNITED
COMMERCIAL TRAVELERS V. WOLFE, 331 U.S. 586; HANCOCK MUTUAL LIFE INS.
CO. V. YATES, 299 U.S. 178. 

THERE IS UNDOUBTEDLY SOME AREA OF FREEDOM FOR STATE CONFLICTS LAW
OUTSIDE THE REQUIREMENTS OF THE FULL FAITH AND CREDIT CLAUSE.  IN SUCH
MATTERS, UNREACHED BY CONSTITUTIONAL LAW, THE STATE RULE WOULD PREVAIL
IN A DIVERSITY COURT.  KLAXON CO. V. STENTOR CO., 313 U.S. 487.  BUT IF
A TRANSACTION IS SO ASSOCIATED WITH ONE JURISDICTION THAT THE
CONSTITUTION COMPELS ANY FORUM IN WHICH THE TRANSACTION IS LITIGATED TO
APPLY THE LAW OF THAT JURISDICTION, IS IT NOT THE CONSTITUTION INSTEAD
OF STATE CONFLICTS LAW WHICH DETERMINES WHAT LAW THE FEDERAL COURT
SHALL APPLY? 

THE COURT'S DETOUR FOLLOWS THIS ITINERARY:  THE FEDERAL COURT IS
BOUND BY THE LAW OF ILLINOIS; ILLINOIS LAW IS WRONG; WE WILL REMAKE THE
LAW OF ILLINOIS TO PROVIDE THE EXACT OPPOSITE TO THAT WHICH THE STATE
HAS PROVIDED; THEN THE FEDERAL COURT CAN APPLY THE LAW WE HAVE REMADE
AND PRETEND IT IS APPLYING ILLINOIS LAW.  THIS IS TOO TORTUOUS AN
EXCURSION FOR ME.  SINCE AS A MATTER OF CONSTITUTIONAL PROVISION
LIABILITY FOR THIS ALLEGED TORT MUST BE ADJUDGED UNDER UTAH LAW AND,
THE CASE BEING WITHIN THE STATUTORY JURISDICTION OF THE DISTRICT COURT,
IT MAY ASCERTAIN AND APPLY THE LAW OF UTAH WITHOUT STRAINING IT THROUGH
THE ILLINOIS SIEVE. 

MR. JUSTICE REED, DISSENTING. 

I DISSENT ON THE GROUND THAT HUGHES V. FETTER, 341 U.S. 609, SHOULD
NOT BE EXTENDED TO COMPEL A STATE TO ENTERTAIN AN ACTION FOR WRONGFUL
DEATH IF THE CLAIM COULD BE EFFECTIVELY LITIGATED IN THE COURTS OF THE
STATE WHERE THE CAUSE OF ACTION AROSE. 

THE REASONING FOR THIS CONCLUSION IS STATED IN THE DISSENT IN HUGHES
V. FETTER, SUPRA. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

AS TO ANY QUESTION BASED ON DIVERSITY JURISDICTION, THE SERIES OF
CASES CULMINATING IN WOODS V. INTERSTATE REALTY CO., 337 U.S. 535,
DISPOSES OF IT.  AS TO THE CONSTITUTIONAL CLAIM UNDER THE FULL FAITH
AND CREDIT CLAUSE, I ADHERE TO THE VIEWS EXPRESSED IN HUGHES V. FETTER,
341 U.S. 609, 614. 
..END :




















MULLANEY V. ANDERSON 342 U.S. 415 


NO. 329.  ARGUED JANUARY 7-8, 1952.  - DECIDED MARCH 3, 1952.  - 191
F.2D 123, AFFIRMED. 


1.  A STATUTE OF THE TERRITORIAL LEGISLATURE OF ALASKA, LAWS 1949, C.
66, PROVIDING FOR THE LICENSING OF COMMERCIAL FISHERMEN IN TERRITORIAL
WATERS, AND IMPOSING A $5 LICENSE FEE ON RESIDENT FISHERMEN AND A $50
FEE ON NONRESIDENTS, HELD VIOLATIVE OF THE PRIVILEGES AND IMMUNITIES
CLAUSE OF ART. IV, SEC. 2 OF THE FEDERAL CONSTITUTION.  TOOMER V.
WITSELL, 334 U.S. 385.  PP. 417-419. 

2.  SO FAR AS THE REGULATION OF FISHERIES IS CONCERNED, CONGRESS HAS
GRANTED THE TERRITORIAL LEGISLATURE OF ALASKA NO GREATER POWER OVER
CITIZENS OF OTHER STATES THAN A STATE LEGISLATURE HAS.  PP. 419-420. 

3.  THIS SUIT WAS BROUGHT BY THE ALASKA FISHERMEN'S UNION AND ITS
SECRETARY-TREASURER ON BEHALF OF SOME 3,200 NONRESIDENT UNION MEMBERS. 
HERE, FOR THE FIRST TIME, PETITIONER QUESTIONED THEIR STANDING TO
MAINTAIN THE SUIT.  TO REMOVE THE MATTER FROM CONTROVERSY, RESPONDENTS
MOVED IN THIS COURT FOR LEAVE TO ADD AS PARTIES PLAINTIFF TWO MEMBERS
OF THE UNION WHO ARE NONRESIDENTS OF ALASKA.   HELD:  IN THE SPECIAL
CIRCUMSTANCES OF THIS CASE, THE MOTION IS GRANTED.  (SEE RULE 21 OF THE
FEDERAL RULES OF CIVIL PROCEDURE.)  PP. 416-417. 

MULLANEY, COMMISSIONER OF TAXATION OF THE TERRITORY OF ALASKA, V.
ANDERSON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

IN A SUIT TO ENJOIN ENFORCEMENT, THE DISTRICT COURT FOR THE TERRITORY
OF ALASKA UPHELD A TAX STATUTE OF ALASKA.  91 F. SUPP. 907.  THE COURT
OF APPEALS REVERSED.  191 F.2D 123.  THIS COURT GRANTED CERTIORARI. 
342 U.S. 865.  AFFIRMED, P. 420. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE TERRITORIAL LEGISLATURE OF ALASKA PROVIDED FOR THE LICENSING OF
COMMERCIAL FISHERMEN IN TERRITORIAL WATERS, IMPOSING A $5 LICENSE FEE
ON RESIDENT FISHERMEN AND A $50 FEE ON NONRESIDENTS.  ALASKA LAWS,
1949, C. 66.  THE ALASKA FISHERMEN'S UNION AND ITS SECRETARY-TREASURER,
ON BEHALF OF SOME 3,200 NONRESIDENT UNION MEMBERS, BROUGHT THIS ACTION
IN THE DISTRICT COURT OF THE TERRITORY TO ENJOIN THE TAX COMMISSIONER
FROM COLLECTING THE LICENSE FEE FROM NONRESIDENTS.  PLAINTIFFS
CONTENDED THAT THE TERRITORIAL LEGISLATURE WAS WITHOUT POWER UNDER THE
ORGANIC ACT TO PASS THE STATUTE, THAT THE EXACTION COMPLAINED OF
UNCONSTITUTIONALLY BURDENS INTERSTATE COMMERCE, AND THAT IT IS AN
ABRIDGMENT OF THE PRIVILEGES AND IMMUNITIES OF CITIZENS OF OTHER STATES
FORBIDDEN BY ART. IV, SEC. 2 OF THE CONSTITUTION AND BY THE FOURTEENTH
AMENDMENT.  AFTER TRIAL, THE DISTRICT COURT CONCLUDED THAT THE
DIFFERENTIAL BETWEEN RESIDENT AND NONRESIDENT FEES RESTS ON SUBSTANTIAL
DIFFERENCES BEARING A FAIR AND REASONABLE RELATION TO THE OBJECTS OF
THE LEGISLATION, AND UPHELD THE STATUTE.  91 F. SUPP. 907.  THE COURT
OF APPEALS FOR THE NINTH CIRCUIT REVERSED, ONE JUDGE DISSENTING.  191
F.2D 123.  WE BROUGHT THE CASE HERE FOR CLARIFICATION OF THE LIMITS ON
THE POWER OF THE TERRITORIAL LEGISLATURE.  342 U.S. 865. 

HERE, FOR THE FIRST TIME, PETITIONER QUESTIONED THE STANDING OF
RESPONDENT UNION AND ITS SECRETARY-TREASURER TO MAINTAIN THIS SUIT.  TO
REMOVE THE MATTER FROM CONTROVERSY, RESPONDENT MOVED FOR LEAVE TO ADD
AS PARTIES PLAINTIFF TWO OF ITS MEMBERS, NONRESIDENTS OF ALASKA AND
SUBJECT TO THE STATUTORY EXACTION.  RULE 21 OF THE FEDERAL RULES OF
CIVIL PROCEDURE AUTHORIZES THE ADDITION OF PARTIES "BY ORDER OF THE
COURT ON MOTION OF ANY PARTY OR OF ITS OWN INITIATIVE AT ANY STAGE OF
THE ACTION AND ON SUCH TERMS AS ARE JUST."  THE ORIGINAL PLAINTIFFS
ALLEGED WITHOUT CONTRADICTION THAT THEY WERE AUTHORIZED BY THE
NONRESIDENT UNION MEMBERS TO BRING THIS ACTION IN THEIR BEHALF.  THIS
CLAIM OF AUTHORITY IS NOW CONFIRMED IN THE PETITION SUPPORTING THE
MOTION TO ADD THE MEMBER-FISHERMEN AS PLAINTIFFS.  TO GRANT THE MOTION
MERELY PUTS THE PRINCIPAL, THE REAL PARTY IN INTEREST, IN THE POSITION
OF HIS AVOWED AGENT.  THE ADDITION OF THESE TWO PARTIES PLAINTIFF CAN
IN NO WISE EMBARRASS THE DEFENDANT.  NOR WOULD THEIR EARLIER JOINDER
HAVE IN ANY WAY AFFECTED THE COURSE OF THE LITIGATION.  TO DISMISS THE
PRESENT PETITION AND REQUIRE THE NEW PLAINTIFFS TO START OVER IN THE
DISTRICT COURT WOULD ENTAIL NEEDLESS WASTE AND RUNS COUNTER TO
EFFECTIVE JUDICIAL ADMINISTRATION - THE MORE SO SINCE, WITH THE SILENT
CONCURRENCE OF THE DEFENDANT, THE ORIGINAL PLAINTIFFS WERE DEEMED
PROPER PARTIES BELOW.  RULE 21 WILL RARELY COME INTO PLAY AT THIS STAGE
OF A LITIGATION.  WE GRANT THE MOTION IN VIEW OF THE SPECIAL
CIRCUMSTANCES BEFORE US. 

IN TOOMER V. WITSELL, 334 U.S. 385, THE COURT HELD THAT ART. IV, SEC.
2 OF THE CONSTITUTION WOULD BAR ANY STATE FROM IMPOSING THE LICENSE FEE
HERE ATTACKED.  IN THAT CASE IT WAS SAID:  "THE STATE IS NOT WITHOUT
POWER, FOR EXAMPLE, TO RESTRICT THE TYPE OF EQUIPMENT USED IN ITS
FISHERIES, TO GRADUATE LICENSE FEES ACCORDING TO THE SIZE OF THE BOATS,
OR EVEN TO CHARGE NON-RESIDENTS A DIFFERENTIAL WHICH WOULD MERELY
COMPENSATE THE STATE FOR ANY ADDED ENFORCEMENT BURDEN THEY MAY IMPOSE
OR FOR ANY CONSERVATION EXPENDITURES FROM TAXES WHICH ONLY RESIDENTS
PAY."  ID., AT 398-399.  THE CHALLENGED DISCRIMINATION DOES NOT COME
WITHIN ANY OF THESE EXCEPTIONS.  THE TAX COMMISSIONER RELIED ON THE
HIGHER COST OF ENFORCING THE LICENSE LAW AGAINST NON-RESIDENT FISHERMEN
TO JUSTIFY THE DIFFERENCE IN FEES, AND THE DISTRICT COURT FOUND THAT
90% OF THE COST OF ENFORCEMENT WAS INCURRED IN COLLECTING THE FEES FROM
NONRESIDENTS.  BUT THERE IS NO WARRANT FOR THE ASSUMPTION THAT THE
DIFFERENTIAL IN FEES BEARS ANY RELATION TO THIS DIFFERENCE IN COST,
NOTHING TO INDICATE THAT IT "WOULD MERELY COMPENSATE" FOR THE ADDED
ENFORCEMENT BURDEN.  INDEED THE TAX COMMISSIONER AND HIS SPECIAL DEPUTY
ENFORCEMENT OFFICER SPECIFICALLY DISCLAIMED ANY KNOWLEDGE OF THE DOLLAR
COST OF ENFORCEMENT.  WHAT EVIDENCE WE HAVE NEGATIVES THE IDEA OF ANY
SUCH RELATION, FOR THE TOTAL AMOUNT PAYABLE BY NONRESIDENT FISHERMEN IN
1949-1950, IN EXCESS OF WHAT THEY WOULD HAVE BEEN CHARGED IF THEY HAD
BEEN RESIDENTS, MAY EASILY HAVE EXCEEDED THE ENTIRE AMOUNT AVAILABLE
FOR ADMINISTRATION OF THE TAX COMMISSIONER'S OFFICE IN THAT YEAR. 
(FN1)  CONSTITUTIONAL ISSUES AFFECTING TAXATION DO NOT TURN ON EVEN
APPROXIMATE MATHEMATICAL DETERMINATIONS.  BUT SOMETHING MORE IS
REQUIRED THAN BALD ASSERTION TO ESTABLISH A REASONABLE RELATION BETWEEN
THE HIGHER FEES AND THE HIGHER COST TO THE TERRITORY.  WE DO NOT
REMOTELY IMPLY THAT THE BURDEN IS ON THE TAXING AUTHORITIES TO SUSTAIN
THE CONSTITUTIONALITY OF A TAX.  BUT WHERE THE POWER TO TAX IS NOT
UNLIMITED, VALIDITY IS NOT ESTABLISHED BY THE MERE IMPOSITION OF A
TAX.  IN THIS CASE, RESPONDENTS NEGATIVED OTHER POSSIBLE BASES RAISED
BY THE PLEADINGS FOR THE DISCRIMINATION, AND THE ONE RELIED ON BY THE
COMMISSIONER, HIGHER ENFORCEMENT COSTS, WAS ONE AS TO WHICH ALL THE
FACTS WERE IN HIS POSSESSION.  RESPONDENTS SOUGHT TO ELICIT THESE FACTS
BY INTERROGATORIES AND CROSS-EXAMINATION WITHOUT AVAIL.  UNDER THE
CIRCUMSTANCES WE THINK THEY DISCHARGED THEIR BURDEN IN ATTACKING THE
STATUTE. 

BUT, IT IS URGED, ALASKA IS NOT A STATE BUT A TERRITORY TO WHICH THE
CONTROLLING CONSTITUTIONAL LIMITATIONS LAID DOWN IN TOOMER V. WITSELL,
SUPRA, ARE NOT APPLICABLE.  HAAVIK V. ALASKA PACKERS ASSN., 263 U.S.
510, IS INVOKED FOR THAT CONTENTION.  WE HAVE NO OCCASION HERE TO
RECONSIDER THE CONSTITUTIONAL HOLDING OF THAT CASE, NAMELY, THAT IT IS
WITHIN THE CONTROLLING POWER OF CONGRESS TO RELIEVE THE TERRITORY OF
SOME OF THE RESTRICTIONS APPLICABLE TO A STATE.  BUT THAT IN FACT WAS
THE REAL ISSUE TO WHICH THE COURT'S ATTENTION WAS DIRECTED IN THE
HAAVIK CASE.  IT WAS ASSUMED THAT IF CONGRESS HAD THE POWER IT WAS
EXERCISED BY THE ORGANIC ACT.  ON FULLER CONSIDERATION, IN LIGHT OF THE
BRIEFS AND RECORD IN THAT CASE AND THE IMPLICATIONS OF SUBSEQUENT
CONGRESSIONAL ENACTMENTS, (FN2) WE CANNOT SO READ THE ACT.  SECTION 3
PROVIDES "THE CONSTITUTION OF THE UNITED STATES, AND ALL THE LAWS
THEREOF WHICH ARE NOT LOCALLY INAPPLICABLE, SHALL HAVE THE SAME FORCE
AND EFFECT WITHIN THE SAID TERRITORY AS ELSEWHERE IN THE UNITED
STATES."  37 STAT. 512, 48 U.S.C. SEC. 23.  AND SEC. 9 EXTENDS THE
LEGISLATIVE POWER OF THE TERRITORY TO "ALL RIGHTFUL SUBJECTS OF
LEGISLATION NOT INCONSISTENT WITH THE CONSTITUTION AND LAWS OF THE
UNITED STATES,  ...  ."  37 STAT. 512, 514, 48 U.S.C. SEC. 77.  IN THE
LIGHT OF THESE SECTIONS, WE CANNOT PRESUME THAT CONGRESS AUTHORIZED THE
TERRITORIAL LEGISLATURE TO TREAT CITIZENS OF STATES THE WAY STATES
CANNOT TREAT CITIZENS OF SISTER STATES.  ONLY THE CLEAREST EXPRESSION
OF CONGRESSIONAL INTENT COULD INDUCE SUCH A RESULT.  IT IS NOT
PRESENT.  IF ANYTHING, CONGRESSIONAL PRONOUNCEMENTS SINCE HAAVIK
CONCERNING THE VERY SUBJECT MATTER HERE IN ISSUE FORTIFY THE CONCLUSION
THAT THE TERRITORIAL LEGISLATURE, PARTICULARLY IN THE REGULATION OF
FISHERIES, WAS GRANTED NO GREATER POWER OVER CITIZENS OF OTHER STATES
THAN A STATE LEGISLATURE HAS.  THE JUDGMENT MUST BE AFFIRMED. 

FN1  THE APPROPRIATION FOR THE OFFICE OF TAX COMMISSIONER FOR THE
BIENNIUM BEGINNING APRIL 1, 1949, WAS $500,000.  ALASKA LAWS, 1949, C.
114.  THE DISTRICT COURT FOUND THAT THERE WERE APPROXIMATELY 3,200
NONRESIDENT FISHERMEN WHO WERE MEMBERS OF PLAINTIFF UNION, AND THE
COURT BELOW ADDED THAT IT MIGHT BE INFERRED FROM THE RECORD THAT AN
EQUAL NUMBER OF NONRESIDENT FISHERMEN WERE NOT MEMBERS OF THIS UNION. 
191 F.2D AT 134.  THE $45 DIFFERENTIAL PAID BY NONRESIDENTS MULTIPLIED
BY THE 6,400 NONRESIDENT FISHERMEN AMOUNTS TO $288,000, WELL OVER HALF
THE COMMISSIONER'S BIENNIAL APPROPRIATION. 

FN2  AFTER THE DECISION IN THE HAAVIK CASE CONGRESS PASSED THE WHITE
ACT, 43 STAT. 464, 48 U.S.C. SECS. 221-247, COMPREHENSIVELY REGULATING
"THE FISHERIES OF THE UNITED STATES IN ALL WATERS OF ALASKA" AND
DELEGATING AUTHORITY TO THE SECRETARY OF COMMERCE (NOW TO THE SECRETARY
OF INTERIOR) TO ADMINISTER THE LAW.  THAT ACT PROVIDED "  ...  NO
EXCLUSIVE OR SEVERAL RIGHT OF FISHERY SHALL BE GRANTED (IN RESERVED
FISHING AREAS ESTABLISHED BY THE SECRETARY IN ALASKAN WATERS), NOR
SHALL ANY CITIZEN OF THE UNITED STATES BE DENIED THE RIGHT TO TAKE,
PREPARE, CURE, OR PRESERVE FISH OR SHELLFISH IN ANY AREA OF THE WATERS
OF ALASKA WHERE FISHING IS PERMITTED BY THE SECRETARY OF THE
INTERIOR."  43 STAT. 464, AS AMENDED, 48 U.S.C. SEC. 222.  BUT SEE 43
STAT. 464, 467, 48 U.S.C. SEC. 228, WHICH PROVIDES THAT NOTHING IN THE
ACT "SHALL ABROGATE OR CURTAIL THE POWERS GRANTED THE TERRITORIAL
LEGISLATURE OF ALASKA TO IMPOSE TAXES OR LICENSES  ...  ." 

IN 1947, CONGRESS AMENDED THE ORGANIC ACT OF PUERTO RICO TO PROVIDE:
"THE RIGHTS, PRIVILEGES, AND IMMUNITIES OF CITIZENS OF THE UNITED
STATES SHALL BE RESPECTED IN PUERTO RICO TO THE SAME EXTENT AS THOUGH
PUERTO RICO WERE A STATE OF THE UNION AND SUBJECT TO THE PROVISIONS OF
PARAGRAPH 1 OF SECTION 2 OF ARTICLE IV OF THE CONSTITUTION OF THE
UNITED STATES."  61 STAT. 772, 48 U.S.C. SEC. 737.  IN HIS STATEMENT
EXPLAINING THE BILL, SENATOR BUTLER, THE MANAGER OF THE BILL, SAID,
"CONGRESS HAS NOT EXPRESSLY EXTENDED THE CONSTITUTION TO PUERTO RICO,
AS IT DID IN THE CASE OF ALASKA AND HAWAII, AND THE COMMITTEE
CONSIDERED IT ADVISABLE TO BRING PUERTO RICO EXPRESSLY WITHIN THE
OPERATION OF THE COMITY CLAUSE SO AS TO LEAVE NO DOUBT THAT THERE MAY
BE NO DISCRIMINATION AGAINST CITIZENS OF THE UNITED STATES WHO ARE NOT
RESIDENTS OF PUERTO RICO."  93 CONG. REC. 10402.  THE REPORT OF THE
SENATE COMMITTEE ON PUBLIC LANDS EXPRESSED DISSATISFACTION THAT
"LEGISLATION IN PUERTO RICO HAS DISCRIMINATED AGAINST NONRESIDENT
AMERICAN CITIZENS."  S. REP. NO. 422, 80TH CONG., 1ST SESS. 4. 

THE CHIEF JUSTICE, MR. JUSTICE CLARK, AND MR. JUSTICE MINTON WOULD
REVERSE FOR THE REASONS GIVEN IN POINTS A AND B OF THE DISSENTING
OPINION OF CHIEF JUDGE DENMAN, 191 F.2D 123, 134-137. 
..END :











DAY-BRITE LIGHTING, INC. V. MISSOURI 342 U.S. 421 


NO. 317.  ARGUED JANUARY 10, 1952.  - DECIDED MARCH 3, 1952.  - 362 MO.
299, 240 S.W.2D 886, AFFIRMED. 


MISSOURI REV. STAT., 1949, SEC. 129.060, WHICH PROVIDES THAT ANY
EMPLOYEE ENTITLED TO VOTE MAY ABSENT HIMSELF FROM HIS EMPLOYMENT FOR
FOUR HOURS BETWEEN THE OPENING AND CLOSING OF THE POLLS ON ELECTION
DAYS AND THAT ANY EMPLOYER WHO DEDUCTS WAGES FOR THAT ABSENCE IS GUILTY
OF A MISDEMEANOR, DOES NOT VIOLATE THE DUE PROCESS OR EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT OR THE CONTRACT CLAUSE OF ART. I,
SEC. 10, OF THE FEDERAL CONSTITUTION.  PP. 421-425. 

DAY-BRITE LIGHTING, INC. V. MISSOURI. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

APPELLANT WAS CONVICTED IN A MISSOURI STATE COURT OF A VIOLATION OF
MO. REV. STAT., 1949, SEC. 129.060.  THE SUPREME COURT OF MISSOURI
AFFIRMED.  362 MO. 299, 240 S.W.2D 886.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 425. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

MISSOURI HAS A STATUTE, MO. REV. STAT., 1949, SEC. 129.060, FIRST
ENACTED IN 1897, WHICH WAS DESIGNED TO END THE COERCION OF EMPLOYEES BY
EMPLOYERS IN THE EXERCISE OF THE FRANCHISE.  IT PROVIDES THAT AN
EMPLOYEE MAY ABSENT HIMSELF FROM HIS EMPLOYMENT FOR FOUR HOURS BETWEEN
THE OPENING AND CLOSING OF THE POLLS WITHOUT PENALTY, AND THAT ANY
EMPLOYER WHO AMONG OTHER THINGS DEDUCTS WAGES FOR THAT ABSENCE IS
GUILTY OF A MISDEMEANOR.  (FN1) 

APPELLANT IS A MISSOURI CORPORATION DOING BUSINESS IN ST. LOUIS. 
NOVEMBER 5, 1946, WAS A DAY FOR GENERAL ELECTIONS IN MISSOURI, THE
POLLS BEING OPEN FROM 6 A.M. TO 7 P.M.  ONE GROTEMEYER, AN EMPLOYEE OF
APPELLANT, WAS ON A SHIFT THAT WORKED FROM 8 A.M. TO 4:30 P.M. EACH
DAY, WITH THIRTY MINUTES FOR LUNCH.  HIS RATE OF PAY WAS $1.60 AN
HOUR.  HE REQUESTED FOUR HOURS FROM THE SCHEDULED WORK DAY TO VOTE ON
NOVEMBER 5, 1946.  THAT REQUEST WAS REFUSED; BUT GROTEMEYER AND ALL
OTHER EMPLOYEES ON HIS SHIFT WERE ALLOWED TO LEAVE AT 3 P.M. THAT DAY,
WHICH GAVE THEM FOUR CONSECUTIVE HOURS TO VOTE BEFORE THE POLLS
CLOSED. 

GROTEMEYER LEFT HIS WORK AT 3 P.M. IN ORDER TO VOTE AND DID NOT
RETURN TO WORK THAT DAY.  HE WAS NOT PAID FOR THE HOUR AND A HALF
BETWEEN 3 P.M. AND 4:30 P.M.  APPELLANT WAS FOUND GUILTY AND FINED FOR
PENALIZING GROTEMEYER IN VIOLATION OF THE STATUTE.  THE JUDGMENT WAS
AFFIRMED BY THE MISSOURI SUPREME COURT, 362 MO. 299, 240 S.W.2D 886,
OVER THE OBJECTION THAT THE STATUTE VIOLATED THE DUE PROCESS AND THE
EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT AND THE CONTRACT
CLAUSE OF ART. I, SEC. 10. 

THE LIBERTY OF CONTRACT ARGUMENT PRESSED ON US IS REMINISCENT OF THE
PHILOSOPHY OF LOCHNER V. NEW YORK, 198 U.S. 45, WHICH INVALIDATED A NEW
YORK LAW PRESCRIBING MAXIMUM HOURS FOR WORK IN BAKERIES; COPPAGE V.
KANSAS, 236 U.S. 1, WHICH STRUCK DOWN A KANSAS STATUTE OUTLAWING
"YELLOW DOG" CONTRACTS; ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525,
WHICH HELD UNCONSTITUTIONAL A FEDERAL STATUTE FIXING MINIMUM WAGE
STANDARDS FOR WOMEN IN THE DISTRICT OF COLUMBIA, AND OTHERS OF THAT
VINTAGE.  OUR RECENT DECISIONS MAKE PLAIN THAT WE DO NOT SIT AS A SUPER
LEGISLATURE TO WEIGH THE WISDOM OF LEGISLATION NOR TO DECIDE WHETHER
THE POLICY WHICH IT EXPRESSES OFFENDS THE PUBLIC WELFARE.  THE
LEGISLATIVE POWER HAS LIMITS, AS TOT V. UNITED STATES, 319 U.S. 463,
HOLDS.  BUT THE STATE LEGISLATURES HAVE CONSTITUTIONAL AUTHORITY TO
EXPERIMENT WITH NEW TECHNIQUES; THEY ARE ENTITLED TO THEIR OWN STANDARD
OF THE PUBLIC WELFARE; THEY MAY WITHIN EXTREMELY BROAD LIMITS CONTROL
PRACTICES IN THE BUSINESS-LABOR FIELD, SO LONG AS SPECIFIC
CONSTITUTIONAL PROHIBITIONS ARE NOT VIOLATED AND SO LONG AS CONFLICTS
WITH VALID AND CONTROLLING FEDERAL LAWS ARE AVOIDED.  THAT IS THE
ESSENCE OF WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379; NEBBIA V. NEW
YORK, 291 U.S. 502; OLSEN V. NEBRASKA, 313 U.S. 236; LINCOLN UNION V.
NORTHWESTERN CO., 335 U.S. 525; AND CALIFORNIA AUTO.  ASSN.  V.
MALONEY, 341 U.S. 105. 

WEST COAST HOTEL CO. V. PARRISH, SUPRA, OVERRULING ADKINS V.
CHILDREN'S HOSPITAL, SUPRA, HELD CONSTITUTIONAL A STATE LAW FIXING
MINIMUM WAGES FOR WOMEN.  THE PRESENT STATUTE CONTAINS IN FORM A
MINIMUM WAGE REQUIREMENT.  THERE IS A DIFFERENCE IN THE PURPOSE OF THE
LEGISLATION.  HERE IT IS NOT THE PROTECTION OF THE HEALTH AND MORALS OF
THE CITIZEN.  MISSOURI BY THIS LEGISLATION HAS SOUGHT TO SAFEGUARD THE
RIGHT OF SUFFRAGE BY TAKING FROM EMPLOYERS THE INCENTIVE AND POWER TO
USE THEIR LEVERAGE OVER EMPLOYEES TO INFLUENCE THE VOTE.  BUT THE
POLICE POWER IS NOT CONFINED TO A NARROW CATEGORY; IT EXTENDS, AS
STATED IN NOBLE STATE BANK V. HASKELL, 219 U.S. 104, 111, TO ALL THE
GREAT PUBLIC NEEDS.  THE PROTECTION OF THE RIGHT OF SUFFRAGE UNDER OUR
SCHEME OF THINGS IS BASIC AND FUNDAMENTAL.  (FN2) 

THE ONLY SEMBLANCE OF SUBSTANCE IN THE CONSTITUTIONAL OBJECTION TO
MISSOURI'S LAW IS THAT THE EMPLOYER MUST PAY WAGES FOR A PERIOD IN
WHICH THE EMPLOYEE PERFORMS NO SERVICES.  OF COURSE MANY FORMS OF
REGULATION REDUCE THE NET RETURN OF THE ENTERPRISE; YET THAT GIVES RISE
TO NO CONSTITUTIONAL INFIRMITY.  SEE QUEENSIDE HILLS CO. V. SAXL, 328
U.S. 80; CALIFORNIA AUTO.  ASSN.  V. MALONEY, SUPRA.  MOST REGULATIONS
OF BUSINESS NECESSARILY IMPOSE FINANCIAL BURDENS ON THE ENTERPRISE FOR
WHICH NO COMPENSATION IS PAID.  THOSE ARE PART OF THE COSTS OF OUR
CIVILIZATION.  EXTREME CASES ARE CONJURED UP WHERE AN EMPLOYER IS
REQUIRED TO PAY WAGES FOR A PERIOD THAT HAS NO RELATION TO THE
LEGITIMATE END.  THOSE CASES CAN AWAIT DECISION AS AND WHEN THEY
ARISE.  THE PRESENT LAW HAS NO SUCH INFIRMITY.  IT IS DESIGNED TO
ELIMINATE ANY PENALTY FOR EXERCISING THE RIGHT OF SUFFRAGE AND TO
REMOVE A PRACTICAL OBSTACLE TO GETTING OUT THE VOTE.  THE PUBLIC
WELFARE IS A BROAD AND INCLUSIVE CONCEPT.  THE MORAL, SOCIAL, ECONOMIC,
AND PHYSICAL WELL-BEING OF THE COMMUNITY IS ONE PART OF IT; THE
POLITICAL WELL-BEING ANOTHER.  THE POLICE POWER WHICH IS ADEQUATE TO
FIX THE FINANCIAL BURDEN FOR ONE IS ADEQUATE FOR THE OTHER.  THE
JUDGMENT OF THE LEGISLATURE THAT TIME OUT FOR VOTING SHOULD COST THE
EMPLOYEE NOTHING MAY BE A DEBATABLE ONE.  IT IS INDEED CONCEDED BY THE
OPPOSITION TO BE SUCH.  BUT IF OUR RECENT CASES MEAN ANYTHING, THEY
LEAVE DEBATABLE ISSUES AS RESPECTS BUSINESS, ECONOMIC, AND SOCIAL
AFFAIRS TO LEGISLATIVE DECISION.  WE COULD STRIKE DOWN THIS LAW ONLY IF
WE RETURNED TO THE PHILOSOPHY OF THE LOCHNER, COPPAGE, AND ADKINS
CASES. 

THE CLASSIFICATION OF VOTERS SO AS TO FREE EMPLOYEES FROM THE
DOMINATION OF EMPLOYERS IS AN ATTEMPT TO DEAL WITH AN EVIL TO WHICH THE
ONE GROUP HAS BEEN EXPOSED.  THE NEED FOR THAT CLASSIFICATION IS A
MATTER FOR LEGISLATIVE JUDGMENT (AMERICAN FEDERATION OF LABOR V.
AMERICAN SASH CO., 335 U.S. 538), AND DOES NOT AMOUNT TO A DENIAL OF
EQUAL PROTECTION UNDER THE LAWS.  AFFIRMED. 

FN1  "ANY PERSON ENTITLED TO VOTE AT ANY ELECTION IN THIS STATE
SHALL, ON THE DAY OF SUCH ELECTION, BE ENTITLED TO ABSENT HIMSELF FROM
ANY SERVICES OR EMPLOYMENT IN WHICH HE IS THEN ENGAGED OR EMPLOYED, FOR
A PERIOD OF FOUR HOURS BETWEEN THE TIMES OF OPENING AND CLOSING THE
POLLS; AND SUCH VOTER SHALL NOT, BECAUSE OF SO ABSENTING HIMSELF, BE
LIABLE TO ANY PENALTY; PROVIDED, HOWEVER, THAT HIS EMPLOYER MAY SPECIFY
THE HOURS DURING WHICH SUCH EMPLOYEE MAY ABSENT HIMSELF AS AFORESAID. 
ANY PERSON OR CORPORATION WHO SHALL REFUSE TO ANY EMPLOYEE THE
PRIVILEGE HEREBY CONFERRED, OR SHALL DISCHARGE OR THREATEN TO DISCHARGE
ANY EMPLOYEE FOR ABSENTING HIMSELF FROM HIS WORK FOR THE PURPOSE OF
SAID ELECTION, OR SHALL CAUSE ANY EMPLOYEE TO SUFFER ANY PENALTY OR
DEDUCTION OF WAGES BECAUSE OF THE EXERCISE OF SUCH PRIVILEGE, OR WHO
SHALL, DIRECTLY OR INDIRECTLY, VIOLATE THE PROVISIONS OF THIS SECTION,
SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND ON CONVICTION THEREOF BE
FINED IN ANY SUM NOT EXCEEDING FIVE HUNDRED DOLLARS." 

FN2  DECISIONS CONTRARY TO THAT OF THE MISSOURI SUPREME COURT IN THIS
CASE HAVE BEEN RENDERED BY THE COURT OF APPEALS OF KENTUCKY IN ILLINOIS
CENTRAL R. CO. V. COMMONWEALTH, 305 KY. 632, 204 S.W.2D 973, AND BY THE
SUPREME COURT OF ILLINOIS IN PEOPLE V. CHICAGO, M. & ST. P.R. CO., 306
ILL. 486, 138 N.E. 155.  BUT CF. ZELNEY V. MURPHY, 387 ILL. 492, 56
N.E.2D 754.  THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK IN
PEOPLE V. FORD MOTOR CO., 271 APP. DIV. 141, 63 N.Y.S.2D 697, AND THE
APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF CALIFORNIA IN BALLARINI
V. SCHLAGE LOCK CO., 100 CAL. APP. 2D 859, 226 P.2D 771, HELD IN ACCORD
WITH MISSOURI.  FOR A REVIEW OF LEGISLATION IN THIS FIELD, SEE 47 COL.
L. REV. 135. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON, DISSENTING. 

THE CONSTITUTIONAL ISSUE IN THIS CASE, IF NOT VERY VITAL IN ITS
PRESENT APPLICATION, SURELY IS A DEBATABLE ONE.  TWO STATE COURTS OF
LAST RESORT, THE ONLY ONES TO CONSIDER SIMILAR LEGISLATION, HAVE HELD
IT UNCONSTITUTIONAL.  (FN1)  ONLY UNREVIEWED DECISIONS OF INTERMEDIATE
COURTS (FN2) CAN BE CITED IN SUPPORT OF THE COURT'S HOLDING. 

APPELLANT EMPLOYED ONE GROTEMEYER, UNDER A UNION CONTRACT, ON AN
HOURLY BASIS AT $1.60 PER HOUR FOR EACH HOUR WORKED.  HE DEMANDED A
FOUR-HOUR LEAVE OF ABSENCE, WITH FULL PAY, ON ELECTION DAY TO DO
CAMPAIGNING AND TO GET OUT THE VOTE.  IT IS STIPULATED THAT HIS
RESIDENCE WAS 200 FEET FROM THE POLLING PLACE AND THAT IT ACTUALLY TOOK
HIM ABOUT FIVE MINUTES TO VOTE.  APPELLANT CLOSED THE DAY'S WORK FOR
ALL EMPLOYEES ONE AND ONE-HALF HOURS EARLIER THAN USUAL, WHICH GAVE
THEM THE STATUTORY FOUR HOURS BEFORE THE POLLS CLOSED.  FOR FAILURE TO
PAY SOMETHING LESS THAN $3 FOR THIS HOUR AND A HALF WHICH GROTEMEYER
DID NOT WORK AND FOR WHICH HIS CONTRACT DID NOT PROVIDE THAT HE SHOULD
BE PAID, THE EMPLOYER IS CONVICTED OF CRIME UNDER THE STATUTE SET FORTH
IN THE COURT'S OPINION. 

TO SUSTAIN THIS STATUTE BY RESORT TO THE ANALOGY OF MINIMUM WAGE LAWS
SEEMS SO FARFETCHED AND UNCONVINCING AS TO DEMONSTRATE ITS WEAKNESS
RATHER THAN ITS STRENGTH.  BECAUSE A STATE MAY REQUIRE PAYMENT OF A
MINIMUM WAGE FOR HOURS THAT ARE WORKED IT DOES NOT FOLLOW THAT IT MAY
COMPEL PAYMENT FOR TIME THAT IS NOT WORKED.  TO OVERLOOK A DISTINCTION
SO FUNDAMENTAL IS TO CONFUSE THE POINT IN ISSUE. 

THE COURT, BY SPEAKING OF THE STATUTE AS THOUGH IT APPLIES ONLY TO
INDUSTRY, SINISTER AND BIG, FURTHER OBSCURES THE REAL PRINCIPLE
INVOLVED.  THE STATUTE PLAINLY REQUIRES FARMERS, SMALL SERVICE
ENTERPRISES, PROFESSIONAL OFFICES, HOUSEWIVES WITH DOMESTIC HELP, AND
ALL OTHER EMPLOYERS, NOT ONLY TO ALLOW THEIR EMPLOYEES TIME TO VOTE,
BUT TO PAY THEM FOR TIME TO DO SO.  IT DOES NOT, HOWEVER, REQUIRE THE
EMPLOYEE TO USE ANY PART OF SUCH TIME FOR THAT PURPOSE.  SUCH
LEGISLATION STANDS IN A CLASS BY ITSELF AND SHOULD NOT BE UNCRITICALLY
COMMENDED AS A MERE REGULATION OF "PRACTICES IN THE BUSINESS-LABOR
FIELD." 

OBTAINING A FULL AND FREE EXPRESSION FROM ALL QUALIFIED VOTERS AT THE
POLLS IS SO FUNDAMENTAL TO A SUCCESSFUL REPRESENTATIVE GOVERNMENT THAT
A STATE RIGHTLY CONCERNS ITSELF WITH THE REMOVAL OF EVERY OBSTRUCTION
TO THE RIGHT AND OPPORTUNITY TO VOTE FREELY.  COURTS SHOULD GO FAR TO
SUSTAIN LEGISLATION DESIGNED TO RELIEVE EMPLOYEES FROM OBLIGATIONS TO
PRIVATE EMPLOYERS WHICH WOULD STAND IN THE WAY OF THEIR DUTY AS
CITIZENS. 

BUT THERE MUST BE SOME LIMIT TO THE POWER TO SHIFT THE WHOLE VOTING
BURDEN FROM THE VOTER TO SOMEONE ELSE WHO HAPPENS TO STAND IN SOME
ECONOMIC RELATIONSHIP TO HIM.  GETTING OUT THE VOTE IS NOT THE BUSINESS
OF EMPLOYERS; INDEED, I HAVE REGARDED IT AS A POLITICAL ABUSE WHEN
EMPLOYERS CONCERNED THEMSELVES WITH THEIR EMPLOYEES' VOTING.  IT IS
EITHER THE VOTER'S OWN BUSINESS OR THE STATE'S BUSINESS.  I DO NOT
QUESTION THAT THE INCENTIVE WHICH THIS STATUTE OFFERS WILL HELP SWELL
THE VOTE; TO REQUIRE THAT EMPLOYEES BE PAID TIME-AND-A-HALF WOULD SWELL
IT STILL MORE, AND DOUBLE-TIME WOULD DO EVEN BETTER.  BUT DOES THE
SUCCESS OF AN ENTICEMENT TO VOTE JUSTIFY PUTTING ITS COST ON SOME OTHER
CITIZEN? 

THE DISCRIMINATORY CHARACTER OF THIS STATUTE IS FLAGRANT.  IT IS
OBVIOUS THAT NOT EVERYBODY WILL BE PAID FOR VOTING AND THE "RATIONAL
BASIS" ON WHICH THE STATE HAS ORDERED THAT SOME BE PAID WHILE OTHERS
ARE NOT ELUDES ME.  IF THERE IS A NEED FOR A SUBSIDY TO GET OUT THE
VOTE, NO REASON IS APPARENT TO ME WHY IT SHOULD GO TO ONE WHO LIVES 200
FEET FROM HIS POLLING PLACE BUT NOT TO A SELF-EMPLOYED FARMER WHO MAY
HAVE TO LAY DOWN HIS WORK AND LET HIS EQUIPMENT IDLE FOR SEVERAL HOURS
WHILE HE TRAVELS SEVERAL MILES OVER BAD FALL ROADS TO DO HIS DUTY AS A
CITIZEN.  IF HE HAS A HIRED MAN, HE MUST ALSO LOSE HIS HAND'S TIME AND
HIS PAY.  PERHAPS SOME PLAN WILL BE FORTHCOMING TO PAY THE FARMER BY
REQUIRING HIS MORTGAGEE TO REBATE SOME PROPORTION OF THE INTEREST ON
THE FARM MORTGAGE IF HE WILL VOTE.  IT WOULD NOT DIFFER IN PRINCIPLE. 
BUT NO WAY OCCURS TO ME BY WHICH THE DOCTOR CAN CHARGE SOME PATIENT OR
THE LAWYER SOME CLIENT FOR THE CALL HE COULD NOT RECEIVE WHILE HE WAS
VOTING. 

I SUPPOSE A STATE ITSELF HAS CONSIDERABLE LATITUDE TO OFFER
INDUCEMENTS TO VOTERS WHO DO NOT VALUE THEIR FRANCHISE ENOUGH TO VOTE
ON THEIR OWN TIME, EVEN IF THEY SEEM TO ME CORRUPTING OR DISCRIMINATING
ONES.  PERHAPS MY DIFFICULTY WITH TODAY'S DECISION IS THAT I CANNOT
RISE ABOVE AN OLD-FASHIONED VALUATION OF AMERICAN CITIZENSHIP WHICH
MAKES A STATE-IMPOSED PAY-FOR-VOTING SYSTEM APPEAR TO BE A CONFESSION
OF FAILURE OF POPULAR REPRESENTATIVE GOVERNMENT. 

IT UNDOUBTEDLY IS THE RIGHT OF EVERY UNION NEGOTIATING WITH AN
EMPLOYER TO BARGAIN FOR VOTING TIME WITHOUT LOSS OF PAY.  IT IS EQUALLY
THE RIGHT OF ANY INDIVIDUAL EMPLOYEE TO MAKE THAT PART OF HIS HIRE.  I
HAVE NO REASON TO DOUBT THAT A LARGE NUMBER OF VOTERS ALREADY HAVE
VOLUNTARY ARRANGEMENTS WHICH MAKE THEIR ABSENCE FOR VOTING WITHOUT
COST.  BUT A CONSTITUTIONAL PHILOSOPHY WHICH SANCTIONS INTERVENTION BY
THE STATE TO FIX TERMS OF PAY WITHOUT WORK MAY BE AVAILABLE TOMMORROW
TO GIVE CONSTITUTIONAL SANCTION TO STATE-IMPOSED TERMS OF EMPLOYMENT
LESS BENEVOLENT.    FN1  ILLINOIS CENTRAL R. CO. V. COMMONWEALTH, 305
KY. 632, 204 S.W.2D 973; PEOPLE V. CHICAGO, M. & ST. P.R. CO., 306 ILL.
486, 138 N.E. 155.  CF. ZELNEY V. MURPHY, 387 ILL. 492, 56 N.E.2D 754. 

FN2  PEOPLE V. FORD MOTOR CO., 271 APP. DIV. 141, 63 N.Y.S.2D 697;
BALLARINI V. SCHLAGE LOCK CO., 100 CAL. APP. 2D 859, 226 P.2D 771. 
..END :
























DOREMUS V. BOARD OF EDUCATION OF THE BOROUGH OF HAWTHORNE 342 U.S. 429 


NO. 9.  ARGUED JANUARY 31, 1952.  - DECIDED MARCH 3, 1952.  - 5 N.J.
435, 75 A.2D 880, APPEAL DISMISSED. 


A STATUTE OF NEW JERSEY PROVIDES FOR THE READING, WITHOUT COMMENT, OF
FIVE VERSES OF THE OLD TESTAMENT AT THE OPENING OF EACH PUBLIC-SCHOOL
DAY.  IN A DECLARATORY JUDGMENT ACTION INSTITUTED BY THE TWO
APPELLANTS, THE STATE SUPREME COURT HELD THAT THE STATUTE DID NOT
VIOLATE THE FEDERAL CONSTITUTION.  APPELLANTS APPEALED TO THIS COURT. 
ONE OF THE APPELLANTS HAD SUED AS THE PARENT OF A PUBLIC-SCHOOL CHILD,
AND EACH HAD SUED AS A TAXPAYER.  HELD:  THE APPEAL IS DISMISSED FOR
WANT OF JURISDICTION.  PP. 430-435. 

1.  THE CAUSE IS MOOT SO FAR AS IT RELATES TO THE RIGHTS OF THE CHILD
IN QUESTION, SINCE SHE GRADUATED FROM THE PUBLIC SCHOOLS BEFORE THE
APPEAL WAS TAKEN TO THIS COURT.  PP. 432-433. 

2.  THE FACTS STATED BY APPELLANTS AS TAXPAYERS WERE NOT SUFFICIENT
TO CONSTITUTE A JUSTICIABLE CASE OR CONTROVERSY WITHIN THE JURISDICTION
OF THIS COURT, BECAUSE THEY DO NOT SHOW SUCH DIRECT AND PARTICULAR
FINANCIAL INTEREST AS IS NECESSARY TO MAINTAIN A TAXPAYER'S CASE OR
CONTROVERSY.  PP. 433-435. 

DOREMUS ET AL. V. BOARD OF EDUCATION OF THE BOROUGH OF HAWTHORNE ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

IN A DECLARATORY JUDGMENT ACTION INSTITUTED BY APPELLANTS IN A NEW
JERSEY COURT TO TEST THE CONSTITUTIONALITY OF A STATUTE OF THAT STATE,
THE STATE SUPREME COURT HELD THAT THE STATUTE DID NOT VIOLATE THE
FEDERAL CONSTITUTION.  5 N.J. 435, 75 A.2D 880.  AN APPEAL TO THIS
COURT IS DISMISSED, P. 435. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS ACTION FOR A DECLARATORY JUDGMENT ON A QUESTION OF FEDERAL
CONSTITUTIONAL LAW WAS PROSECUTED IN THE STATE COURTS OF NEW JERSEY. 
IT SOUGHT TO DECLARE INVALID A STATUTE OF THAT STATE WHICH PROVIDES FOR
THE READING, WITHOUT COMMENT, OF FIVE VERSES OF THE OLD TESTAMENT AT
THE OPENING OF EACH PUBLIC-SCHOOL DAY.  N.J. REV. STAT., 1937, 18:14
77.  NO ISSUE WAS RAISED UNDER THE STATE CONSTITUTION, BUT THE ACT WAS
CLAIMED TO VIOLATE THE CLAUSE OF THE FIRST AMENDMENT TO THE FEDERAL
CONSTITUTION PROHIBITING ESTABLISHMENT OF RELIGION. 

NO TRIAL WAS HELD AND WE HAVE NO FINDINGS OF FACT, BUT THE TRIAL
COURT DENIED RELIEF ON THE MERITS ON THE BASIS OF THE PLEADINGS AND A
PRETRIAL CONFERENCE, OF WHICH THE RECORD CONTAINS MEAGER NOTES.  THE
SUPREME COURT OF NEW JERSEY, ON APPEAL, RENDERED ITS OPINION THAT THE
ACT DOES NOT VIOLATE THE FEDERAL CONSTITUTION, IN SPITE OF
JURISDICTIONAL DOUBTS WHICH IT POINTED OUT BUT CONDONED AS FOLLOWS: 

"NO ONE IS BEFORE US ASSERTING THAT HIS RELIGIOUS PRACTICES HAVE BEEN
INTERFERED WITH OR THAT HIS RIGHT TO WORSHIP IN ACCORDANCE WITH THE
DICTATES OF HIS CONSCIENCE HAS BEEN SUPPRESSED.  NO RELIGIOUS SECT IS A
PARTY TO THE CAUSE.  NO REPRESENTATIVE OF, OR SPOKESMAN FOR, A
RELIGIOUS BODY HAS ATTACKED THE STATUTE HERE OR BELOW.  ONE OF THE
PLAINTIFFS IS 'A CITIZEN AND TAXPAYER;' THE ONLY INTEREST HE ASSERTS IS
JUST THAT AND IN THOSE WORDS, SET FORTH IN THE COMPLAINT AND NOT
FOLLOWED BY SPECIFICATION OR PROOF.  IT IS CONCEDED THAT HE IS A
CITIZEN AND A TAXPAYER, BUT IT IS NOT CHARGED AND IT IS NEITHER
CONCEDED NOR PROVED THAT THE BRIEF INTERRUPTION IN THE DAY'S SCHOOLING
CAUSED BY COMPLIANCE WITH THE STATUTE ADDS COST TO THE SCHOOL EXPENSES
OR VARIES BY MORE THAN AN INCOMPUTABLE SCINTILLA THE ECONOMY OF THE
DAY'S WORK.  THE OTHER PLAINTIFF, IN ADDITION TO BEING A CITIZEN AND A
TAXPAYER, HAS A DAUGHTER, AGED SEVENTEEN, WHO IS A STUDENT OF THE
SCHOOL.  THOSE FACTS ARE ASSERTED, BUT, AS IN THE CASE OF THE CO
PLAINTIFF, NO VIOLATED RIGHTS ARE URGED.  IT IS NOT CHARGED THAT THE
PRACTICE REQUIRED BY THE STATUTE CONFLICTS WITH THE CONVICTIONS OF
EITHER MOTHER OR DAUGHTER.  APPARENTLY THE SOLE PURPOSE AND THE ONLY
FUNCTION OF PLAINTIFFS IS THAT THEY SHALL ASSUME THE ROLE OF ACTORS SO
THAT THERE MAY BE A SUIT WHICH WILL INVOKE A COURT RULING UPON THE
CONSTITUTIONALITY OF THE STATUTE.  RESPONDENTS URGE THAT UNDER THE
CIRCUMSTANCES THE QUESTION IS MOOT AS TO THE PLAINTIFF-APPELLANTS AND
THAT OUR DECLARATORY JUDGMENT STATUTE MAY NOT PROPERLY BE USED IN
JUSTIFICATION OF SUCH A PROCEEDING.  CF. NEW JERSEY TURNPIKE AUTHORITY
V. PARSONS, 3 N.J. 235; MASSACHUSETTS V. MELLON, 262 U.S. 447, AT 488,
43 SUP. CT. 597, 67 L. ED. 1078, AT 1085 (1923).  THE POINT HAS
SUBSTANCE BUT WE HAVE NEVERTHELESS CONCLUDED TO DISPOSE OF THE APPEAL
ON ITS MERITS."  5 N.J. 435, 439, 75 A.2D 880, 881-882 (1950). 

UPON APPEAL TO THIS COURT, WE CONSIDERED APPELLANTS' JURISDICTIONAL
STATEMENT BUT, INSTEAD OF NOTING PROBABLE JURISDICTION, ORDERED THAT
"FURTHER CONSIDERATION OF THE QUESTION OF THE JURISDICTION OF THIS
COURT IN THIS CASE AND OF THE MOTION TO DISMISS OR AFFIRM IS POSTPONED
TO THE HEARING OF THE CASE ON THE MERITS."  ON FURTHER STUDY, THE
DOUBTS THUS INDICATED RIPEN INTO A CONVICTION THAT WE SHOULD DISMISS
THE APPEAL WITHOUT REACHING THE CONSTITUTIONAL QUESTION. 

THE VIEW OF THE FACTS TAKEN BY THE COURT BELOW, THOUGH IT IS ENTITLED
TO RESPECT, DOES NOT BIND US AND WE MAY MAKE AN INDEPENDENT EXAMINATION
OF THE RECORD.  DOING SO, WE FIND NOTHING MORE SUBSTANTIAL IN SUPPORT
OF JURISDICTION THAN DID THE COURT BELOW.  APPELLANTS, APPARENTLY
SEEKING TO BRING THEMSELVES WITHIN ILLINOIS EX REL.  MCCOLLUM V. BOARD
OF EDUCATION, 333 U.S. 203, ASSERT A CHALLENGE TO THE ACT IN TWO
CAPACITIES - ONE AS PARENT OF A CHILD SUBJECT TO IT, AND BOTH AS
TAXPAYERS BURDENED BECAUSE OF ITS REQUIREMENTS. 

IN SUPPORT OF THE PARENT-AND-SCHOOL-CHILD RELATIONSHIP, THE COMPLAINT
ALLEGED THAT APPELLANT KLEIN WAS PARENT OF A SEVENTEEN-YEAR-OLD PUPIL
IN HAWTHORNE HIGH SCHOOL, WHERE BIBLE READING WAS PRACTICED PURSUANT TO
THE ACT.  THAT IS ALL.  THERE IS NO ASSERTION THAT SHE WAS INJURED OR
EVEN OFFENDED THEREBY OR THAT SHE WAS COMPELLED TO ACCEPT, APPROVE OR
CONFESS AGREEMENT WITH ANY DOGMA OR CREED OR EVEN TO LISTEN WHEN THE
SCRIPTURES WERE READ.  ON THE CONTRARY, THERE WAS A PRETRIAL
STIPULATION THAT ANY STUDENT, AT HIS OWN OR HIS PARENTS' REQUEST, COULD
BE EXCUSED DURING BIBLE READING AND THAT IT THIS CASE NO SUCH EXCUSE
WAS ASKED.  HOWEVER, IT WAS AGREED UPON ARGUMENT HERE THAT THIS CHILD
HAD GRADUATED FROM THE PUBLIC SCHOOLS BEFORE THIS APPEAL WAS TAKEN TO
THIS COURT.  OBVIOUSLY NO DECISION WE COULD RENDER NOW WOULD PROTECT
ANY RIGHTS SHE MAY ONCE HAVE HAD, AND THIS COURT DOES NOT SIT TO DECIDE
ARGUMENTS AFTER EVENTS HAVE PUT THEM TO REST.  UNITED STATES V. ALASKA
STEAMSHIP CO., 253 U.S. 113, 116. 

THE COMPLAINT IS SIMILARLY NIGGARDLY OF FACTS TO SUPPORT A TAXPAYER'S
GRIEVANCE.  DOREMUS IS ALLEGED TO BE A CITIZEN AND TAXPAYER OF THE
STATE OF NEW JERSEY AND OF THE TOWNSHIP OF RUTHERFORD, BUT ANY RELATION
OF THAT TOWNSHIP TO THE LITIGATION IS NOT DISCLOSED TO ONE NOT FAMILIAR
WITH LOCAL GEOGRAPHY.  KLEIN IS SET OUT AS A CITIZEN AND TAXPAYER OF
THE BOROUGH OF HAWTHORNE IN THE STATE OF NEW JERSEY, AND IT IS ALLEGED
THAT HAWTHORNE HAS A HIGH SCHOOL SUPPORTED BY PUBLIC FUNDS.  IN THIS
SCHOOL THE BIBLE IS READ, ACCORDING TO STATUTE.  THERE IS NO ALLEGATION
THAT THIS ACTIVITY IS SUPPORTED BY ANY SEPARATE TAX OR PAID FOR FROM
ANY PARTICULAR APPROPRIATION OR THAT IT ADDS ANY SUM WHATEVER TO THE
COST OF CONDUCTING THE SCHOOL.  NO INFORMATION IS GIVEN AS TO WHAT KIND
OF TAXES ARE PAID BY APPELLANTS AND THERE IS NO AVERMENT THAT THE BIBLE
READING INCREASES ANY TAX THEY DO PAY OR THAT AS TAXPAYERS THEY ARE,
WILL, OR POSSIBLY CAN BE OUT OF POCKET BECAUSE OF IT. 

THE STATE RAISED THE DEFENSE THAT APPELLANTS SHOWED NO STANDING TO
MAINTAIN THE ACTION BUT, ON PRETRIAL CONFERENCE, PERHAPS WITH
PREMONITIONS OF SUCCESS, WAIVED IT AND ACQUIESCED IN A DETERMINATION OF
THE FEDERAL CONSTITUTIONAL QUESTION.  WHETHER SUCH FACTS AMOUNT TO A
JUSTICIABLE CASE OR CONTROVERSY IS DECISIVE OF OUR JURISDICTION. 

THIS COURT HAS HELD THAT THE INTERESTS OF A TAXPAYER IN THE MONEYS OF
THE FEDERAL TREASURY ARE TOO INDETERMINABLE, REMOTE, UNCERTAIN AND
INDIRECT TO FURNISH A BASIS FOR AN APPEAL TO THE PREVENTIVE POWERS OF
THE COURT OVER THEIR MANNER OF EXPENDITURE.  ALABAMA POWER CO. V.
ICKES, 302 U.S. 464, 478-479; MASSACHUSETTS V. MELLON, 262 U.S. 447,
486 ET SEQ. THE LATTER CASE RECOGNIZED, HOWEVER, THAT "THE INTEREST OF
A TAXPAYER OF A MUNICIPALITY IN THE APPLICATION OF ITS MONEYS IS DIRECT
AND IMMEDIATE AND THE REMEDY BY INJUNCTION TO PREVENT THEIR MISUSE IS
NOT INAPPROPRIATE."  262 U.S. AT 486.  INDEED, A NUMBER OF STATES
PROVIDE FOR IT BY STATUTE OR DECISIONAL LAW AND SUCH CAUSES HAVE BEEN
ENTERTAINED IN FEDERAL COURTS.  CRAMPTON V. ZABRISKIE, 101 U.S. 601,
609.  SEE MASSACHUSETTS V. MELLON, SUPRA, AT 486.  WITHOUT DISPARAGING
THE AVAILABILITY OF THE REMEDY BY TAXPAYER'S ACTION TO RESTRAIN
UNCONSTITUTIONAL ACTS WHICH RESULT IN DIRECT PECUNIARY INJURY, WE
REITERATE WHAT THE COURT SAID OF A FEDERAL STATUTE AS EQUALLY TRUE WHEN
A STATE ACT IS ASSAILED:  "THE PARTY WHO INVOKES THE POWER MUST BE ABLE
TO SHOW NOT ONLY THAT THE STATUTE IS INVALID BUT THAT HE HAS SUSTAINED
OR IS IMMEDIATELY IN DANGER OF SUSTAINING SOME DIRECT INJURY AS THE
RESULT OF ITS ENFORCEMENT, AND NOT MERELY THAT HE SUFFERS IN SOME
INDEFINITE WAY IN COMMON WITH PEOPLE GENERALLY."   MASSACHUSETTS V.
MELLON, SUPRA, AT 488. 

IT IS TRUE THAT THIS COURT FOUND A JUSTICIABLE CONTROVERSY IN EVERSON
V. BOARD OF EDUCATION, 330 U.S. 1.  BUT EVERSON SHOWED A MEASURABLE
APPROPRIATION OR DISBURSEMENT OF SCHOOL-DISTRICT FUNDS OCCASIONED
SOLELY BY THE ACTIVITIES COMPLAINED OF.  THIS COMPLAINT DOES NOT. 

WE DO NOT UNDERTAKE TO SAY THAT A STATE COURT MAY NOT RENDER AN
OPINION ON A FEDERAL CONSTITUTIONAL QUESTION EVEN UNDER SUCH
CIRCUMSTANCES THAT IT CAN BE REGARDED ONLY AS ADVISORY.  BUT, BECAUSE
OUR OWN JURISDICTION IS CAST IN TERMS OF "CASE OR CONTROVERSY," WE
CANNOT ACCEPT AS THE BASIS FOR REVIEW, NOR AS THE BASIS FOR CONCLUSIVE
DISPOSITION OF AN ISSUE OF FEDERAL LAW WITHOUT REVIEW, ANY PROCEDURE
WHICH DOES NOT CONSTITUTE SUCH. 

THE TAXPAYER'S ACTION CAN MEET THIS TEST, BUT ONLY WHEN IT IS A GOOD
FAITH POCKETBOOK ACTION.  IT IS APPARENT THAT THE GRIEVANCE WHICH IT IS
SOUGHT TO LITIGATE HERE IS NOT A DIRECT DOLLARS-AND-CENTS INJURY BUT IS
A RELIGIOUS DIFFERENCE.  IF APPELLANTS ESTABLISHED THE REQUISITE
SPECIAL INJURY NECESSARY TO A TAXPAYER'S CASE OR CONTROVERSY, IT WOULD
NOT MATTER THAT THEIR DOMINANT INDUCEMENT TO ACTION WAS MORE RELIGIOUS
THAN MERCENARY.  IT IS NOT A QUESTION OF MOTIVATION BUT OF POSSESSION
OF THE REQUISITE FINANCIAL INTEREST THAT IS, OR IS THREATENED TO BE,
INJURED BY THE UNCONSTITUTIONAL CONDUCT.  WE FIND NO SUCH DIRECT AND
PARTICULAR FINANCIAL INTEREST HERE.  IF THE ACT MAY GIVE RISE TO A
LEGAL CASE OR CONTROVERSY ON SOME BEHALF, THE APPELLANTS CANNOT OBTAIN
A DECISION FROM THIS COURT BY A FEIGNED ISSUE OF TAXATION. 

THE MOTION TO DISMISS THE APPEAL IS GRANTED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE
BURTON CONCUR, DISSENTING. 

I THINK THIS CASE DESERVES A DECISION ON THE MERITS.  THERE IS NO
GROUP MORE INTERESTED IN THE OPERATION AND MANAGEMENT OF THE PUBLIC
SCHOOLS THAN THE TAXPAYERS WHO SUPPORT THEM AND THE PARENTS WHOSE
CHILDREN ATTEND THEM.  CERTAINLY A SUIT BY ALL THE TAXPAYERS TO ENJOIN
A PRACTICE AUTHORIZED BY THE SCHOOL BOARD WOULD BE A SUIT BY VITAL
PARTIES IN INTEREST.  THEY WOULD NOT BE ABLE TO SHOW, ANY MORE THAN THE
TWO PRESENT TAXPAYERS HAVE DONE, THAT THE READING OF THE BIBLE ADDS TO
THE TAXES THEY PAY.  BUT IF THEY WERE RIGHT IN THEIR CONTENTIONS ON THE
MERITS, THEY WOULD ESTABLISH THAT THEIR PUBLIC SCHOOLS WERE BEING
DEFLECTED FROM THE EDUCATIONAL PROGRAM FOR WHICH THE TAXES WERE
RAISED.  THAT SEEMS TO ME TO BE AN ADEQUATE INTEREST FOR THE
MAINTENANCE OF THIS SUIT BY ALL THE TAXPAYERS.  IF ALL CAN DO IT, THERE
IS NO APPARENT REASON WHY LESS THAN ALL MAY NOT, THE INTEREST BEING THE
SAME.  IN THE PRESENT CASE THE ISSUES ARE NOT FEIGNED; THE SUIT IS NOT
COLLUSIVE; THE MISMANAGEMENT OF THE SCHOOL SYSTEM THAT IS ALLEGED IS
CLEAR AND PLAIN. 

IF THIS WERE A SUIT TO ENJOIN A FEDERAL LAW, IT COULD NOT BE
MAINTAINED BY REASON OF MASSACHUSETTS V. MELLON, 262 U.S. 447, 486. 
BUT NEW JERSEY CAN FASHION HER OWN RULES GOVERNING THE INSTITUTION OF
SUITS IN HER COURTS.  IF SHE WANTS TO GIVE THESE TAXPAYERS THE STATUS
TO SUE (BY ANALOGY TO THE RIGHT OF SHAREHOLDERS TO ENJOIN ULTRA VIRES
ACTS OF THEIR CORPORATION), I SEE NOTHING IN THE CONSTITUTION TO
PREVENT IT.  AND WHERE THE CLASH OF INTERESTS IS AS REAL AND AS STRONG
AS IT IS HERE, IT IS ODD INDEED TO HOLD THERE IS NO CASE OR CONTROVERSY
WITHIN THE MEANING OF ART. III, SEC. 2 OF THE CONSTITUTION. 
..END :













PERKINS V. BENGUET CONSOLIDATED MINING CO. 342 U.S. 437 


NO. 85.  ARGUED NOVEMBER 27-28, 1951.  - DECIDED MARCH 3, 1952.  - 155
OHIO ST. 116, 98 N.E.2D 33, VACATED AND REMANDED. 


A FOREIGN CORPORATION, OWNING GOLD AND SILVER MINES IN THE PHILIPPINE
ISLANDS, TEMPORARILY CARRIED ON IN OHIO (DURING THE JAPANESE OCCUPATION
OF THE PHILIPPINES) A CONTINUOUS AND SYSTEMATIC, BUT LIMITED, PART OF
ITS GENERAL BUSINESS - CONSISTING OF DIRECTORS' MEETINGS, BUSINESS
CORRESPONDENCE, BANKING, STOCK TRANSFERS, PAYMENT OF SALARIES,
PURCHASING OF MACHINERY, ETC.  WHILE ENGAGED IN DOING SUCH BUSINESS IN
OHIO, ITS PRESIDENT WAS SERVED WITH SUMMONS IN AN ACTION IN PERSONAM
AGAINST THE CORPORATION FILED IN AN OHIO STATE COURT BY A NONRESIDENT
OF OHIO.  THE CAUSE OF ACTION DID NOT ARISE IN OHIO AND DID NOT RELATE
TO THE CORPORATION'S ACTIVITIES THERE.  A JUDGMENT SUSTAINING A MOTION
TO QUASH THE SERVICE WAS AFFIRMED BY THE STATE SUPREME COURT.  HELD: 

1.  THE FEDERAL CONSTITUTION DOES NOT COMPEL OHIO TO OPEN ITS COURTS
TO SUCH A CASE - EVEN THOUGH OHIO PERMITS A COMPLAINANT TO MAINTAIN A
PROCEEDING IN PERSONAM IN ITS COURTS AGAINST A PROPERLY SERVED
NONRESIDENT NATURAL PERSON TO ENFORCE A CAUSE OF ACTION WHICH DOES NOT
ARISE OUT OF ANYTHING DONE WITHIN THE STATE.  PP. 440-441. 

2.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ALSO DOES NOT
PROHIBIT OHIO FROM GRANTING SUCH RELIEF AGAINST A FOREIGN CORPORATION. 
OLD WAYNE LIFE ASSN. V. MCDONOUGH, 204 U.S. 8, AND SIMON V. SOUTHERN R.
CO., 236 U.S. 115, DISTINGUISHED.  PP. 441-447. 

3.  AS A MATTER OF FEDERAL DUE PROCESS, THE BUSINESS DONE BY THE
CORPORATION IN OHIO WAS SUFFICIENTLY SUBSTANTIAL AND OF SUCH A NATURE
AS TO PERMIT OHIO TO ENTERTAIN THE CAUSE OF ACTION AGAINST IT, THOUGH
THE CAUSE OF ACTION AROSE FROM ACTIVITIES ENTIRELY DISTINCT FROM ITS
ACTIVITIES IN OHIO.  PP. 447-449. 

4.  IT NOT CLEARLY APPEARING, UNDER THE OHIO PRACTICE AS TO THE
EFFECT OF THE SYLLABUS, WHETHER THE SUPREME COURT OF OHIO RESTED ITS
DECISION ON OHIO LAW OR ON THE FOURTEENTH AMENDMENT, THE CAUSE IS
REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN THE LIGHT OF THE
OPINION OF THIS COURT.  PP. 441-449. 

PERKINS V. BENGUET CONSOLIDATED MINING CO. ET AL. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

IN TWO ACTIONS IN AN OHIO STATE COURT, THE TRIAL COURT SUSTAINED A
MOTION TO QUASH THE SERVICE ON THE RESPONDENT FOREIGN CORPORATION.  THE
COURT OF APPEALS OF OHIO AFFIRMED, 88 OHIO APP. 118, 95 N.E.2D 5, AS
DID THE STATE SUPREME COURT, 155 OHIO ST. 116, 98 N.E.2D 33.  THIS
COURT GRANTED CERTIORARI.  342 U.S. 808.  JUDGMENT VACATED AND CAUSE
REMANDED, P. 449. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE CALLS FOR AN ANSWER TO THE QUESTION WHETHER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES PRECLUDES OHIO FROM SUBJECTING A FOREIGN CORPORATION TO THE
JURISDICTION OF ITS COURTS IN THIS ACTION IN PERSONAM.  THE CORPORATION
HAS BEEN CARRYING ON IN OHIO A CONTINUOUS AND SYSTEMATIC, BUT LIMITED,
PART OF ITS GENERAL BUSINESS.  ITS PRESIDENT, WHILE ENGAGED IN DOING
SUCH BUSINESS IN OHIO, HAS BEEN SERVED WITH SUMMONS IN THIS
PROCEEDING.  THE CAUSE OF ACTION SUED UPON DID NOT ARISE IN OHIO AND
DOES NOT RELATE TO THE CORPORATION'S ACTIVITIES THERE.  FOR THE REASONS
HEREAFTER STATED, WE HOLD THAT THE FOURTEENTH AMENDMENT LEAVES OHIO
FREE TO TAKE OR DECLINE JURISDICTION OVER THE CORPORATION. 

AFTER EXTENDED LITIGATION ELSEWHERE (FN1) PETITIONER, IDONAH SLADE
PERKINS, A NONRESIDENT OF OHIO, FILED TWO ACTIONS IN PERSONAM IN THE
COURT OF COMMON PLEAS OF CLERMONT COUNTY, OHIO, AGAINST THE SEVERAL
RESPONDENTS.  AMONG THOSE SUED IS THE BENGUET CONSOLIDATED MINING
COMPANY, HERE CALLED THE MINING COMPANY.  IT IS STYLED A "SOCIEDAD
ANONIMA" UNDER THE LAWS OF THE PHILIPPINE ISLANDS, WHERE IT OWNS AND
HAS OPERATED PROFITABLE GOLD AND SILVER MINES.  IN ONE ACTION
PETITIONER SEEKS APPROXIMATELY $68,400 IN DIVIDENDS CLAIMED TO BE DUE
HER AS A STOCKHOLDER.  IN THE OTHER SHE CLAIMS $2,500,000 DAMAGES
LARGELY BECAUSE OF THE COMPANY'S FAILURE TO ISSUE TO HER CERTIFICATES
FOR 120,000 SHARES OF ITS STOCK. 

IN EACH CASE THE TRIAL COURT SUSTAINED A MOTION TO QUASH THE SERVICE
OF SUMMONS ON THE MINING COMPANY.  99 N.E.2D 515.  THE COURT OF APPEALS
OF OHIO AFFIRMED THAT DECISION, 88 OHIO APP. 118, 95 N.E.2D 5, AS DID
THE SUPREME COURT OF OHIO, 155 OHIO ST. 116, 98 N.E.2D 33.  THE CASES
WERE CONSOLIDATED AND WE GRANTED CERTIORARI IN ORDER TO PASS UPON THE
CONCLUSION VOICED WITHIN THE COURT BELOW THAT FEDERAL DUE PROCESS
REQUIRED THE RESULT THERE REACHED.  342 U.S. 808. 

WE START WITH THE HOLDING OF THE SUPREME COURT OF OHIO, NOT CONTESTED
HERE, THAT, UNDER OHIO LAW, THE MINING COMPANY IS TO BE TREATED AS A
FOREIGN CORPORATION.  (FN2)  ACTUAL NOTICE OF THE PROCEEDING WAS GIVEN
TO THE CORPORATION IN THE INSTANT CASE THROUGH REGULAR SERVICE OF
SUMMONS UPON ITS PRESIDENT WHILE HE WAS IN OHIO ACTING IN THAT
CAPACITY.  ACCORDINGLY, THERE CAN BE NO JURISDICTIONAL OBJECTION BASED
UPON A LACK OF NOTICE TO A RESPONSIBLE REPRESENTATIVE OF THE
CORPORATION. 

THE ANSWER TO THE QUESTION OF WHETHER THE STATE COURTS OF OHIO ARE
OPEN TO A PROCEEDING IN PERSONAM, AGAINST AN AMPLY NOTIFIED FOREIGN
CORPORATION, TO ENFORCE A CAUSE OF ACTION NOT ARISING IN OHIO AND NOT
RELATED TO THE BUSINESS OR ACTIVITIES OF THE CORPORATION IN THAT STATE
RESTS ENTIRELY UPON THE LAW OF OHIO, UNLESS THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT COMPELS A DECISION EITHER WAY. 

THE SUGGESTION THAT FEDERAL DUE PROCESS COMPELS THE STATE TO OPEN ITS
COURTS TO SUCH A CASE HAS NO SUBSTANCE. 

"PROVISIONS FOR MAKING FOREIGN CORPORATIONS SUBJECT TO SERVICE IN THE
STATE IS A MATTER OF LEGISLATIVE DISCRETION, AND A FAILURE TO PROVIDE
FOR SUCH SERVICE IS NOT A DENIAL OF DUE PROCESS.  STILL LESS IS IT
INCUMBENT UPON A STATE IN FURNISHING SUCH PROCESS TO MAKE THE
JURISDICTION OVER THE FOREIGN CORPORATION WIDE ENOUGH TO INCLUDE THE
ADJUDICATION OF TRANSITORY ACTIONS NOT ARISING IN THE STATE."  MISSOURI
P.R. CO. V. CLARENDON CO., 257 U.S. 533, 535. 

ALSO WITHOUT MERIT IS THE ARGUMENT THAT MERELY BECAUSE OHIO PERMITS A
COMPLAINANT TO MAINTAIN A PROCEEDING IN PERSONAM IN ITS COURTS AGAINST
A PROPERLY SERVED NONRESIDENT NATURAL PERSON TO ENFORCE A CAUSE OF
ACTION WHICH DOES NOT ARISE OUT OF ANYTHING DONE IN OHIO, THEREFORE,
THE CONSTITUTION OF THE UNITED STATES COMPELS OHIO TO PROVIDE LIKE
RELIEF AGAINST A FOREIGN CORPORATION. 

A MORE SERIOUS QUESTION IS PRESENTED BY THE CLAIM THAT THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PROHIBITS OHIO FROM GRANTING
SUCH RELIEF AGAINST A FOREIGN CORPORATION.  THE SYLLABUS IN THE REPORT
OF THE CASE BELOW, WHILE DENYING THE RELIEF SOUGHT, DOES NOT INDICATE
WHETHER THE SUPREME COURT OF OHIO RESTED ITS DECISION ON OHIO LAW OR ON
THE FOURTEENTH AMENDMENT.  THE FIRST PARAGRAPH OF THAT SYLLABUS IS AS
FOLLOWS: 

"1.  THE DOING OF BUSINESS IN THIS STATE BY A FOREIGN CORPORATION,
WHICH HAS NOT APPOINTED A STATUTORY AGENT UPON WHOM SERVICE OF PROCESS
AGAINST THE CORPORATION CAN BE MADE IN THIS STATE OR OTHERWISE
CONSENTED TO SERVICE OF SUMMONS UPON IT IN ACTIONS BROUGHT IN THIS
STATE, WILL NOT MAKE THE CORPORATION SUBJECT TO SERVICE OF SUMMONS IN
AN ACTION IN PERSONAM BROUGHT IN THE COURTS OF THIS STATE TO ENFORCE A
CAUSE OF ACTION NOT ARISING IN THIS STATE AND IN NO WAY RELATED TO THE
BUSINESS OR ACTIVITIES OF THE CORPORATION IN THIS STATE."  155 OHIO ST.
116, 117, 98 N.E.2D 33, 34. 

IF THE ABOVE STATEMENT STOOD ALONE, IT MIGHT MEAN THAT THE DECISION
RESTED SOLELY UPON THE LAW OF OHIO.  IN SUPPORT OF THAT POSSIBILITY WE
ARE TOLD THAT, UNDER THE RULES AND PRACTICE OF THE SUPREME COURT OF
OHIO, ONLY THE SYLLABUS NECESSARILY CARRIES THE APPROVAL OF THAT
COURT.  (FN3)  AS WE UNDERSTAND THE OHIO PRACTICE, THE SYLLABUS OF ITS
SUPREME COURT CONSTITUTES THE OFFICIAL OPINION OF THAT COURT BUT IT
MUST BE READ IN THE LIGHT OF THE FACTS AND ISSUES OF THE CASE. 

THE ONLY OPINION ACCOMPANYING THE SYLLABUS OF THE COURT BELOW PLACES
THE CONCURRENCE OF ITS AUTHOR UNEQUIVOCALLY UPON THE GROUND THAT THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PROHIBITS THE OHIO
COURTS FROM EXERCISING JURISDICTION OVER THE RESPONDENT CORPORATION IN
THIS PROCEEDING.  (FN4) THAT OPINION IS AN OFFICIAL PART OF THE REPORT
OF THE CASE.  THE REPORT, HOWEVER, DOES NOT DISCLOSE TO WHAT EXTENT, IF
ANY, THE OTHER MEMBERS OF THE COURT MAY HAVE SHARED THE VIEW EXPRESSED
IN THAT OPINION.  ACCORDINGLY, FOR US TO ALLOW THE JUDGMENT TO STAND AS
IT IS WOULD RISK AN AFFIRMANCE OF A DECISION WHICH MIGHT HAVE BEEN
DECIDED DIFFERENTLY IF THE COURT BELOW HAD FELT FREE, UNDER OUR
DECISIONS, TO DO SO. 

THE CASES PRIMARILY RELIED ON BY THE AUTHOR OF THE OPINION
ACCOMPANYING THE SYLLABUS BELOW ARE OLD WAYNE LIFE ASSN. V. MCDONOUGH,
204 U.S. 8, AND SIMON V. SOUTHERN R. CO., 236 U.S. 115.  UNLIKE THE
CASE AT BAR, NO ACTUAL NOTICE OF THE PROCEEDINGS WAS RECEIVED IN THOSE
CASES BY A RESPONSIBLE REPRESENTATIVE OF THE FOREIGN CORPORATION.  IN
EACH CASE, THE PUBLIC OFFICIAL WHO WAS SERVED WITH PROCESS IN AN
ATTEMPT TO BIND THE FOREIGN CORPORATION WAS HELD TO LACK THE NECESSARY
AUTHORITY TO ACCEPT SERIVCE SO AS TO BIND IT IN A PROCEEDING TO ENFORCE
A CAUSE OF ACTION ARISING OUTSIDE OF THE STATE OF THE FORUM.  SEE 204
U.S. AT 22-23, AND 236 U.S. AT 130.  THE NECESSARY RESULT WAS A FINDING
OF INADEQUATE SERVICE IN EACH CASE AND A CONCLUSION THAT THE FOREIGN
CORPORATION WAS NOT BOUND BY IT.  THE SAME WOULD BE TRUE TODAY IN A
LIKE PROCEEDING WHERE THE ONLY SERVICE HAD AND THE ONLY NOTICE GIVEN
WAS THAT DIRECTED TO A PUBLIC OFFICIAL WHO HAD NO AUTHORITY, BY STATUTE
OR OTHERWISE, TO ACCEPT IT IN THAT KIND OF A PROCEEDING.  AT THE TIME
OF RENDERING THE ABOVE DECISIONS THIS COURT WAS AIDED, IN REACHING ITS
CONCLUSION AS TO THE LIMITED SCOPE OF THE STATUTORY AUTHORITY OF THE
PUBLIC OFFICIALS, BY THIS COURT'S CONCEPTION THAT THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT PRECLUDED A STATE FROM GIVING ITS
PUBLIC OFFICIALS AUTHORITY TO ACCEPT SERVICE IN TERMS BROAD ENOUGH TO
BIND A FOREIGN CORPORATION IN PROCEEDINGS AGAINST IT TO ENFORCE AN
OBLIGATION ARISING OUTSIDE OF THE STATE OF THE FORUM.  THAT CONCEPTION
NOW HAS BEEN MODIFIED BY THE RATIONALE ADOPTED IN LATER DECISIONS AND
PARTICULARLY IN INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310. 

TODAY IF AN AUTHORIZED REPRESENTATIVE OF A FOREIGN CORPORATION BE
PHYSICALLY PRESENT IN THE STATE OF THE FORUM AND BE THERE ENGAGED IN
ACTIVITIES APPROPRIATE TO ACCEPTING SERVICE OR RECEIVING NOTICE ON ITS
BEHALF, WE RECOGNIZE THAT THERE IS NO UNFAIRNESS IN SUBJECTING THAT
CORPORATION TO THE JURISDICTION OF THE COURTS OF THAT STATE THROUGH
SUCH SERVICE OF PROCESS UPON THAT REPRESENTATIVE.  THIS HAS BEEN
SQUARELY HELD TO BE SO IN A PROCEEDING IN PERSONAM AGAINST SUCH A
CORPORATION, AT LEAST IN RELATION TO A CAUSE OF ACTION ARISING OUT OF
THE CORPORATION'S ACTIVITIES WITHIN THE STATE OF THE FORUM.  (FN5) 

THE ESSENCE OF THE ISSUE HERE, AT THE CONSTITUTIONAL LEVEL, IS A LIKE
ONE OF GENERAL FAIRNESS TO THE CORPORATION.  APPROPRIATE TESTS FOR THAT
ARE DISCUSSED IN INTERNATIONAL SHOE CO. V. WASHINGTON, SUPRA, AT 317
320.  THE AMOUNT AND KIND OF ACTIVITIES WHICH MUST BE CARRIED ON BY THE
FOREIGN CORPORATION IN THE STATE OF THE FORUM SO AS TO MAKE IT
REASONABLE AND JUST TO SUBJECT THE CORPORATION TO THE JURISDICTION OF
THAT STATE ARE TO BE DETERMINED IN EACH CASE.  THE CORPORATE ACTIVITIES
OF A FOREIGN CORPORATION WHICH, UNDER STATE STATUTE, MAKE IT NECESSARY
FOR IT TO SECURE A LICENSE AND TO DESIGNATE A STATUTORY AGENT UPON WHOM
PROCESS MAY BE SERVED PROVIDE A HELPFUL BUT NOT A CONCLUSIVE TEST.  FOR
EXAMPLE, THE STATE OF THE FORUM MAY BY STATUTE REQUIRE A FOREIGN MINING
CORPORATION TO SECURE A LICENSE IN ORDER LAWFULLY TO CARRY ON THERE
SUCH FUNCTIONAL INTRASTATE OPERATIONS AS THOSE OF MINING OR REFINING
ORE.  ON THE OTHER HAND, IF THE SAME CORPORATION CARRIES ON, IN THAT
STATE, OTHER CONTINUOUS AND SYSTEMATIC CORPORATE ACTIVITIES AS IT DID
HERE - CONSISTING OF DIRECTOR'S MEETINGS, BUSINESS CORRESPONDENCE,
BANKING, STOCK TRANSFERS, PAYMENT OF SALARIES, PURCHASING OF MACHINERY,
ETC. - THOSE ACTIVITIES ARE ENOUGH TO MAKE IT FAIR AND REASONABLE TO
SUBJECT THAT CORPORATION TO PROCEEDINGS IN PERSONAM IN THAT STATE, AT
LEAST INSOFAR AS THE PROCEEDINGS IN PERSONAM SEEK TO ENFORCE CAUSES OF
ACTION RELATING TO THOSE VERY ACTIVITIES OR TO OTHER ACTIVITIES OF THE
CORPORATION WITHIN THE STATE. 

THE INSTANT CASE TAKES US ONE STEP FURTHER TO A PROCEEDING IN
PERSONAM TO ENFORCE A CAUSE OF ACTION NOT ARISING OUT OF THE
CORPORATION'S ACTIVITIES IN THE STATE OF THE FORUM.  USING THE TESTS
MENTIONED ABOVE WE FIND NO REQUIREMENT OF FEDERAL DUE PROCESS THAT
EITHER PROHIBITS OHIO FROM OPENING ITS COURTS TO THE CAUSE OF ACTION
HERE PRESENTED OR COMPELS OHIO TO DO SO.  THIS CONFORMS TO THE
REALISTIC REASONING IN INTERNATIONAL SHOE CO. V. WASHINGTON, SUPRA, AT
318-319: 

"  ...  THERE HAVE BEEN INSTANCES IN WHICH THE CONTINUOUS CORPORATE
OPERATIONS WITHIN A STATE WERE THOUGHT SO SUBSTANTIAL AND OF SUCH A
NATURE AS TO JUSTIFY SUIT AGAINST IT ON CAUSES OF ACTION ARISING FROM
DEALINGS ENTIRELY DISTINCT FROM THOSE ACTIVITIES.  SEE MISSOURI,
K.&T.R. CO. V. REYNOLDS, 255 U.S. 565; (FN6) TAUZA V. SUSQUEHANNA COAL
CO., 220 N.Y. 259, 115 N.E. 915; CF. ST. LOUIS S.W.R. CO. V. ALEXANDER,
SUPRA (227 U.S. 218). 

"  ...  SOME OF THE DECISIONS HOLDING THE CORPORATION AMENABLE TO
SUIT HAVE BEEN SUPPORTED BY RESORT TO THE LEGAL FICTION THAT IT HAS
GIVEN ITS CONSENT TO SERVICE AND SUIT, CONSENT BEING IMPLIED FROM ITS
PRESENCE IN THE STATE THROUGH THE ACTS OF ITS AUTHORIZED AGENTS. 
LAFAYETTE INSURANCE CO. V. FRENCH, 18 HOW.  404, 407; ST. CLAIR V. COX,
SUPRA (106 U.S. 350), 356; COMMERCIAL MUTUAL CO. V. DAVIS, SUPRA (213
U.S. 245), 254; WASHINGTON V. SUPERIOR COURT, 289 U.S. 361, 364-365. 
BUT MORE REALISTICALLY IT MAY BE SAID THAT THOSE AUTHORIZED ACTS WERE
OF SUCH A NATURE AS TO JUSTIFY THE FICTION.  SMOLIK V. PHILADELPHIA &
READING CO., 222 F. 148, 151.  HENDERSON, THE POSITION OF FOREIGN
CORPORATIONS IN AMERICAN CONSTITUTIONAL LAW, 94-95. 

"  ...  WHETHER DUE PROCESS IS SATISFIED MUST DEPEND RATHER UPON THE
QUALITY AND NATURE OF THE ACTIVITY IN RELATION TO THE FAIR AND ORDERLY
ADMINISTRATION OF THE LAWS WHICH IT WAS THE PURPOSE OF THE DUE PROCESS
CLAUSE TO INSURE.  THAT CLAUSE DOES NOT CONTEMPLATE THAT A STATE MAY
MAKE BINDING A JUDGMENT IN PERSONAM AGAINST AN INDIVIDUAL OR CORPORATE
DEFENDANT WITH WHICH THE STATE HAS NO CONTACTS, TIES, OR RELATIONS. 
CF. PENNOYER V. NEFF, SUPRA (95 U.S. 714); MINNESOTA COMMERCIAL ASSN.
V. BENN, 261 U.S. 140." 

IT REMAINS ONLY TO CONSIDER, IN MORE DETAIL, THE ISSUE OF WHETHER, AS
A MATTER OF FEDERAL DUE PROCESS, THE BUSINESS DONE IN OHIO BY THE
RESPONDENT MINING COMPANY WAS SUFFICIENTLY SUBSTANTIAL AND OF SUCH A
NATURE AS TO PERMIT OHIO TO ENTERTAIN A CAUSE OF ACTION AGAINST A
FOREIGN CORPORATION, WHERE THE CAUSE OF ACTION AROSE FROM ACITIVITES
ENTIRELY DISTINCT FROM ITS ACTIVITIES IN OHIO.  SEE INTERNATIONAL SHOE
CO. V. WASHINGTON, SUPRA, AT 318. 

THE OHIO COURT OF APPEALS SUMMARIZED THE EVIDENCE ON THE SUBJECT.  88
OHIO APP. AT 119-125, 95 N.E.2D AT 6-9.  FROM THAT SUMMARY THE
FOLLOWING FACTS ARE SUBSTANTIALLY BEYOND CONTROVERSY: THE COMPANY'S
MINING PROPERTIES WERE IN THE PHILIPPINE ISLANDS.  IT OPERATIONS THERE
WERE COMPLETELY HALTED DURING THE OCCUPATION OF THE ISLANDS BY THE
JAPANESE.  DURING THAT INTERIM THE PRESIDENT, WHO WAS ALSO THE GENERAL
MANAGER AND PRINCIPAL STOCKHOLDER OF THE COMPANY, RETURNED TO HIS HOME
IN CLERMONT COUNTY, OHIO.  THERE HE MAINTAINED AN OFFICE IN WHICH HE
CONDUCTED HIS PERSONAL AFFAIRS AND DID MANY THINGS ON BEHALF OF THE
COMPANY.  HE KEPT THERE OFFICE FILES OF THE COMPANY.  HE CARRIED ON
THERE CORRESPONDENCE RELATING TO THE BUSINESS OF THE COMPANY AND TO ITS
EMPLOYEES.  HE DREW AND DISTRIBUTED THERE SALARY CHECKS ON BEHALF OF
THE COMPANY, BOTH IN HIS OWN FAVOR AS PRESIDENT AND IN FAVOR OF TWO
COMPANY SECRETARIES WHO WORKED THERE WITH HIM.  HE USED AND MAINTAINED
IN CLERMONT COUNTY, OHIO, TWO ACTIVE BANK ACCOUNTS CARRYING SUBSTANTIAL
BALANCES OF COMPANY FUNDS.  A BANK IN HAMILTON COUNTY, OHIO, ACTED AS
TRANSFER AGENT FOR THE STOCK OF THE COMPANY.  SEVERAL DIRECTOR'S
MEETINGS WERE HELD AT HIS OFFICE OR HOME IN CLERMONT COUNTY.  FROM THAT
OFFICE HE SUPERVISED POLICIES DEALING WITH THE REHABILITATION OF THE
CORPORATION'S PROPERTIES IN THE PHILIPPINES AND HE DISPATCHED FUNDS TO
COVER PURCHASES OF MACHINERY FOR SUCH REHABILITATION.  THUS HE CARRIED
ON IN OHIO A CONTINUOUS AND SYSTEMATIC SUPERVISION OF THE NECESSARILY
LIMITED WARTIME ACTIVITIES OF THE COMPANY.  HE THERE DISCHARGED HIS
DUTIES AS PRESIDENT AND GENERAL MANAGER, BOTH DURING THE OCCUPATION OF
THE COMPANY'S PROPERTIES BY THE JAPANESE AND IMMEDIATELY THEREAFTER. 
WHILE NO MINING PROPERTIES IN OHIO WERE OWNED OR OPERATED BY THE
COMPANY, MANY OF ITS WARTIME ACTIVITIES WERE DIRECTED FROM OHIO AND
WERE BEING GIVEN THE PERSONAL ATTENTION OF ITS PRESIDENT IN THAT STATE
AT THE TIME HE WAS SERVED WITH SUMMONS.  CONSIDERATION OF THE
CIRCUMSTANCES WHICH, UNDER THE LAW OF OHIO, ULTIMATELY WILL DETERMINE
WHETHER THE COURTS OF THAT STATE WILL CHOOSE TO TAKE JURISDICTION OVER
THE CORPORATION IS RESERVED FOR THE COURTS OF THAT STATE.  WITHOUT
REACHING THAT ISSUE OF STATE POLICY, WE CONCLUDE THAT, UNDER THE
CIRCUMSTANCES ABOVE RECITED, IT WOULD NOT VIOLATE FEDERAL DUE PROCESS
FOR OHIO EITHER TO TAKE OR DECLINE JURISDICTION OF THE CORPORATION IN
THIS PROCEEDING.  THIS RELIEVES THE OHIO COURTS OF THE RESTRICTION
RELIED UPON IN THE OPINION ACCOMPANYING THE SYLLABUS BELOW AND WHICH
MAY HAVE INFLUENCED THE JUDGMENT OF THE COURT BELOW. 

ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF OHIO IS VACATED AND
THE CAUSE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN THE
LIGHT OF THIS OPINION.  (FN7)  IT IS SO ORDERED. 

FN1  SEE PERKINS V. PERKINS, 57 PHIL.  R. 205; HARDEN V. BENGUET
CONSOLIDATED MINING CO., 58 PHIL.  R. 141; PERKINS V. GUARANTY TRUST
CO., 274 N.Y. 250, 8 N.E.2D 849; PERKINS V. BENGUET CONSOLIDATED MINING
CO., 55 CAL. APP. 2D 720, 132 P.2D 70, REHEARING DENIED, 55 CAL. APP.
2D 774, 132 P.2D 102, CERT. DENIED, 319 U.S. 774; 60 CAL. APP. 2D 845,
141 P.2D 19, CERT. DENIED, 320 U.S. 803, 815; PERKINS V. FIRST NATIONAL
BANK OF CINCINNATI (CT. OF COMMON PLEAS, HAMILTON COUNTY, OHIO), 37
OHIO OP. 162, 79 N.E.2D 159. 

FN2  OHIO REQUIRES A FOREIGN CORPORATION TO SECURE A LICENSE TO
TRANSACT "BUSINESS" IN THAT STATE, THROCKMORTON'S OHIO CODE, 1940, SEC.
8625-4, AND TO APPOINT A "DESIGNATED AGENT" UPON WHOM PROCESS MAY BE
SERVED, SECS. 8625-2, 8625-5.  THE MINING COMPANY HAS NEITHER SECURED
SUCH A LICENSE NOR DESIGNATED SUCH AN AGENT.  WHILE THIS MAY MAKE IT
SUBJECT TO PENALTIES AND HANDICAPS, THIS DOES NOT PREVENT IT FROM
TRANSACTING BUSINESS OR BEING SUED.  SEC. 8625-25.  IF IT HAS A
"MANAGING AGENT" IN OHIO, SERVICE MAY BE MADE UPON HIM.  SEC. 11290. 
SUCH SERVICE IS A PERMISSIVE ALTERNATIVE TO SERVICE ON THE CORPORATION
THROUGH ITS PRESIDENT OR OTHER CHIEF OFFICER.  SEC. 11288.  LIVELY V.
PICTON, 218 F. 401, 406-407 (C.A. 6TH CIR.).  THE EVIDENCE AS TO THE
BUSINESS ACTIVITIES OF THE CORPORATION IN OHIO IS SUMMARIZED BY THE
OHIO COURT OF APPEALS.  88 OHIO APP. 118, 119-125, 95 N.E.2D 5, 6-9. 
THAT COURT HELD THAT SUCH ACTIVITIES DID NOT CONSTITUTE THE TRANSACTION
OF BUSINESS REFERRED TO IN THE CODE.  IN ITS SYLLABUS, HOWEVER, THE
SUPREME COURT OF OHIO, WITHOUT PASSING UPON THE SUFFICIENCY OF SUCH
ACTS FOR THE ABOVE STATUTORY PURPOSE, AND WITHOUT DEFINING ITS USE OF
THE TERM, AFFIRMED THE JUDGMENT DISMISSING THE COMPLAINT AND ASSUMED
THAT WHAT THE CORPORATION HAD DONE IN OHIO CONSTITUTED "DOING BUSINESS"
TO AN EXTENT SUFFICIENT TO BE RECOGNIZED IN REACHING ITS DECISION. 

FN3  IN 1858 THE SUPREME COURT OF OHIO PROMULGATED THE FOLLOWING
RULE: 

"A SYLLABUS OF THE POINTS DECIDED BY THE COURT IN EACH CASE, SHALL BE
STATED, IN WRITING, BY THE JUDGE ASSIGNED TO DELIVER THE OPINION OF THE
COURT, WHICH SHALL BE CONFINED TO THE POINTS OF LAW, ARISING FROM THE
FACTS OF THE CASE, THAT HAVE BEEN DETERMINED BY THE COURT.  AND THE
SYLLABUS SHALL BE SUBMITTED TO THE JUDGES CONCURRING THEREIN, FOR
REVISAL, BEFORE PUBLICATION THEREOF; AND IT SHALL BE INSERTED IN THE
BOOK OF REPORTS WITHOUT ALTERATION, UNLESS BY THE CONSENT OF THE JUDGES
CONCURRING THEREIN."  5 OHIO ST. VII. 

THIS POLICY HAS BEEN RECOGNIZED BY STATUTE.  BATES OHIO R.S. SEC.
427, AS AMENDED, 103 OHIO LAWS 1913, SEC. 1483, AND 108 OHIO LAWS 1919,
SEC. 1483.  IT APPEARS NOW IN THROCKMORTON'S OHIO CODE, 1940, SEC.
1483, AS FOLLOWS: 

"WHENEVER IT HAS BEEN THUS DECIDED TO REPORT A CASE FOR PUBLICATION
THE SYLLABUS THEREOF SHALL BE PREPARED BY THE JUDGE DELIVERING THE
OPINION, AND APPROVED BY A MAJORITY OF THE MEMBERS OF THE COURT; AND
THE REPORT MAY BE PER CURIAM, OR IF AN OPINION BE REPORTED, THE SAME
SHALL BE WRITTEN IN AS BRIEF AND CONCISE FORM AS MAY BE CONSISTENT WITH
A CLEAR PRESENTATION OF THE LAW OF THE CASE  ...  .  ONLY SUCH CASES AS
ARE HEREAFTER REPORTED IN ACCORDANCE WITH THE PROVISIONS OF THIS
COURT WITHIN THE STATE." 

THERE ARE MANY REFERENCES TO THIS PRACTICE, BOTH IN THE SYLLABI AND
OPINIONS WRITTEN FOR THE SUPREME COURT OF OHIO.  TYPICAL OF THESE IS
THE FOLLOWING: 

"IT HAS LONG BEEN THE RULE OF THIS COURT THAT THE SYLLABUS CONTAINS
THE LAW OF THE CASE.  IT IS THE ONLY PART OF OPINION REQUIRING THE
APPROVAL OF ALL THE MEMBERS CONCURRING IN THE JUDGMENT.  WHERE THE
JUDGE WRITING AN OPINION DISCUSSES MATTERS OR GIVES EXPRESSION TO HIS
VIEWS ON QUESTIONS NOT CONTAINED IN THE SYLLABUS, IT IS MERELY THE
PERSONAL OPINION OF THAT JUDGE."  STATE EX REL. DONAHEY V. EDMONDSON,
89 OHIO ST. 93, 107-108, 105 N.E. 269, 273. 

SEE ALSO, WILLIAMSON HEATER CO. V. RADICH, 128 OHIO ST. 124, 190 N.E.
403; BALTIMORE & O.R. CO. V. BAILLIE, 112 OHIO ST. 567, 148 N.E. 233. 
A SYLLABUS MUST BE READ IN THE LIGHT OF THE FACTS IN THE CASE, EVEN
WHERE BROUGHT OUT IN THE ACCOMPANYING OPINION RATHER THAN IN THE
SYLLABUS ITSELF.  SEE WILLIAMSON HEATER CO. V. RADICH, SUPRA; PERKINS
V. BRIGHT, 109 OHIO ST. 14, 19-20, 141 N.E. 689, 690-691; IN RE POAGE,
87 OHIO ST. 72, 82-83, 100 N.E. 125, 127-128. 

FN4  "HOWEVER, THE DOING OF BUSINESS IN A STATE BY A FOREIGN
CORPORATION, WHICH HAS NOT APPOINTED A STATUTORY AGENT UPON WHOM
SERVICE OF PROCESS AGAINST THE CORPORATION CAN BE MADE IN THAT STATE OR
OTHERWISE CONSENTED TO SERVICE OF SUMMONS UPON IT IN ACTIONS BROUGHT IN
THAT STATE, WILL NOT MAKE THE CORPORATION SUBJECT TO SERVICE OF SUMMONS
IN AN ACTION IN PERSONAM BROUGHT IN THE COURTS OF THAT STATE TO ENFORCE
A CAUSE OF ACTION IN NO WAY RELATED TO THE BUSINESS OR ACTIVITIES OF
THE CORPORATION IN THAT STATE.  OLD WAYNE MUTUAL LIFE ASSN.  OF
INDIANAPOLIS V. MCDONOUGH, 204 U.S., 8, 22, 23, 51 L. ED., 345, 27 S.
CT., 236; SIMON V. SOUTHERN RY. CO., 236 U.S., 115, 129, 130 AND 132,
59 L. ED., 492, 35 S. CT. 255.  SEE, ALSO, PENNSYLVANIA FIRE INS. CO.
OF PHILADELPHIA V. GOLD ISSUE MINING & MILLING CO., 243 U.S., 93, 95
AND 96, 61 L. ED., 610, 37 S. CT., 344; ROBERT MITCHELL FURNITURE CO.
V. SELDEN BRECK CONSTRUCTION CO., 257 U.S., 213, 215 AND 216, 66 L.
ED., 201, 42 S. CT., 84; INTERNATIONAL SHOE CO. V. WASHINGTON, 326
U.S., 310, 319 AND 320, 90 L. ED., 95, 66 S. CT., 154. 

"AN EXAMINATION OF THE OPINIONS OF THE SUPREME COURT OF THE UNITED
STATES IN THE FOREGOING CASES WILL CLEARLY DISCLOSE THAT SERVICE OF
SUMMONS IN SUCH AN INSTANCE WOULD BE VOID AS WANTING IN DUE PROCESS OF
LAW."  155 OHIO ST. 116, 119-120, 98 N.E.2D 33, 35. 

FN5  "  ...  THE OBLIGATION WHICH IS HERE SUED UPON AROSE OUT OF
THOSE VERY ACTIVITIES.  IT IS EVIDENT THAT THESE OPERATIONS ESTABLISH
SUFFICIENT CONTACTS OR TIES WITH THE STATE OF THE FORUM TO MAKE IT
REASONABLE AND JUST, ACCORDING TO OUR TRADITIONAL CONCEPTION OF FAIR
PLAY AND SUBSTANTIAL JUSTICE, TO PERMIT THE STATE TO ENFORCE THE
OBLIGATIONS WHICH APPELLANT HAS INCURRED THERE.  HENCE WE CANNOT SAY
THAT THE MAINTENANCE OF THE PRESENT SUIT IN THE STATE OF WASHINGTON
INVOLVES AN UNREASONABLE OR UNDUE PROCEDURE."  INTERNATIONAL SHOE CO.
V. WASHINGTON, SUPRA, AT 320. 

FN6  THIS CITATION DOES NOT DISCLOSE THE SIGNIFICANCE OF THIS DECISION
BUT LIGHT IS THROWN UPON IT BY THE OPINIONS OF THE STATE COURT BELOW. 
REYNOLDS V. MISSOURI, K.&T.R. CO., 224 MASS. 379, 113 N.E. 413; 228
MASS. 584, 117 N.E. 913.  IN ADDITION TO THE CASES CITED IN THE TEXT
SEE BARROW S.S. CO. V. KANE, 170 U.S. 100; PENNSYLVANIA FIRE INSURANCE
CO. V. GOLD ISSUE MINING CO., 243 U.S. 93 (STATUTORY AGENT APPOINTED);
PHILADELPHIA & READING R. CO. V. MCKIBBIN, 243 U.S. 264, 268-269
(QUESTION LEFT OPEN). 

FN7  FOR LIKE PROCEDURE FOLLOWED UNDER SOMEWHAT COMPARABLE
CIRCUMSTANCES SEE STATE TAX COMM'N V. VAN COTT, 306 U.S. 511. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE MINTON, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

AS I UNDERSTAND THE PRACTICE IN OHIO, THE LAW AS AGREED TO BY THE
COURT IS STATED IN THE SYLLABUS.   IF AN OPINION IS FILED, IT EXPRESSES
THE VIEWS OF THE WRITER OF THE OPINION AND OF THOSE WHO MAY JOIN HIM AS
TO WHY THE LAW WAS SO DECLARED IN THE SYLLABUS.  JUDGE TAFT ALONE FILED
AN OPINION IN THE INSTANT CASE. 

THE LAW AS DECLARED IN THE SYLLABUS, WHICH IS THE WHOLE COURT
SPEAKING, IS CLEARLY BASED UPON ADEQUATE STATE GROUNDS.  JUDGE TAFT IN
HIS OPINION EXPRESSES THE VIEW THAT THE OPINIONS OF THIS COURT ON DUE
PROCESS GROUNDS REQUIRE THE COURT TO DECLARE THE LAW AS STATED IN THE
SYLLABUS.  AS THE MAJORITY OPINION OF THIS COURT POINTS OUT, THIS IS AN
ERRONEOUS VIEW OF THIS COURT'S DECISIONS.  "THIS BRINGS THE SITUATION
CLEARLY WITHIN THE SETTLED RULE WHEREBY THIS COURT WILL NOT REVIEW A
STATE COURT DECISION RESTING ON AN ADEQUATE AND INDEPENDENT NON-FEDERAL
GROUND EVEN THOUGH THE STATE COURT MAY HAVE ALSO SUMMONED TO ITS
SUPPORT AN ERRONEOUS VIEW OF FEDERAL LAW."  RADIO STATION WOW V.
JOHNSON, 326 U.S. 120, 129. 

THE CASE OF STATE TAX COMM'N V. VAN COTT, 306 U.S. 511, IS NOT THIS
CASE.  THERE THE CASE WAS NOT CLEARLY DECIDED ON AN ADEQUATE STATE
GROUND, BUT THE STATE GROUND AND THE FEDERAL GROUND WERE SO INTERWOVEN
THAT THIS COURT WAS "UNABLE TO CONCLUDE THAT THE JUDGMENT RESTS UPON AN
INDEPENDENT INTERPRETATION OF THE STATE LAW."  (P. 514.)  IN THE
INSTANT CASE, A CLEAR STATEMENT OF THE STATE LAW IS MADE BY THE COURT
IN THE SYLLABUS.  ONLY JUDGE TAFT HAS SUMMONED THE ERRONEOUS VIEW OF
THIS COURT'S DECISIONS TO HIS SUPPORT OF THE ADEQUATE STATE GROUND
APPROVED BY THE WHOLE COURT. 

WHAT WE ARE SAYING TO OHIO IS:  "YOU HAVE DECIDED THIS CASE ON AN
ADEQUATE STATE GROUND, DENYING SERVICE, WHICH YOU HAD A RIGHT TO DO,
BUT YOU DON'T HAVE TO DO IT IF YOU DON'T WANT TO, AS FAR AS THE
DECISIONS OF THIS COURT ARE CONCERNED."  I THINK WHAT WE ARE DOING IS
GIVING GRATUITOUSLY AN ADVISORY OPINION TO THE OHIO SUPREME COURT.  I
WOULD DISMISS THE WRIT AS IMPROVIDENTLY GRANTED. 
..END :






BRANNAN V. STARK 342 U.S. 451 


NO. 6.  ARGUED OCTOBER 9, 1951.  - DECIDED MARCH 3, 1952.  - 87 U.S.
APP. D.C. 388, 185 F.2D 871, AFFIRMED. 


UNDER SEC. 8C OF THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, THE
SECRETARY OF AGRICULTURE PROMULGATED AN ORDER REGULATING THE MARKETING
OF MILK IN THE BOSTON AREA.  AS AMENDED IN 1941, THE ORDER PROVIDED FOR
FIXING UNIFORM PRICES TO BE PAID TO ALL PRODUCERS AND REQUIRED THAT, IN
COMPUTING SUCH UNIFORM PRICES, CERTAIN AMOUNTS SHOULD BE DEDUCTED FOR
SPECIAL PAYMENTS TO COOPERATIVE MARKETING ASSOCIATIONS.  CLAIMING THAT
THIS DEDUCTION AND THESE PAYMENTS TO COOPERATIVES UNLAWFULLY DIVERTED
FUNDS WHICH BELONGED TO PRODUCERS, CERTAIN PRODUCERS WHO WERE NOT
MEMBERS OF ANY COOPERATIVE SUED TO ENJOIN THE SECRETARY FROM CARRYING
OUT THE PROVISIONS THEREFOR.  HELD:  THE PROVISIONS FOR SUCH DEDUCTION
AND FOR SUCH PAYMENTS TO COOPERATIVES ARE INVALID, BECAUSE THEY ARE NOT
AUTHORIZED BY THE ACT.  PP. 452-466. 

1.  THESE PROVISIONS ARE NOT SPECIFICALLY AUTHORIZED BY ANY PART OF
THE ACT.  P. 458. 

2.  NOR ARE THEY INCLUDED WITHIN THE AUTHORITY GRANTED BY SEC.
8C(7)(D), WHICH AUTHORIZES PROVISIONS "INCIDENTAL TO, AND NOT
INCONSISTENT WITH, THE TERMS AND CONDITIONS SPECIFIED IN SUBSECTIONS
(5), (6), AND (7) AND NECESSARY TO EFFECTUATE THE OTHER PROVISIONS OF
SUCH ORDER."  PP. 462-464. 

(A)  THEY ARE NOT "INCIDENTAL TO" THE TERMS AND CONDITIONS SPECIFIED
IN SUBSECTIONS (5), (6), AND (7).  PP. 462-463. 

(B)  THEY ARE "INCONSISTENT WITH" SEC. 8C(5)(A), WHICH PROVIDES THAT
ALL HANDLERS SHALL PAY UNIFORM PRICES FOR EACH CLASS OF MILK, SUBJECT
TO CERTAIN ADJUSTMENTS NOT HERE PERTINENT.  P. 463. 

(C)  THEY ARE "INCONSISTENT WITH" SEC. 8C(5)(B), WHICH REQUIRES THE
PAYMENT OF UNIFORM PRICES TO ALL PRODUCERS FOR ALL MILK DELIVERED,
SUBJECT TO CERTAIN ADJUSTMENTS NOT HERE PERTINENT.  PP. 463-464. 

3.  NOR ARE THESE PROVISIONS AUTHORIZED BY SEC. 10(B)(1) DIRECTING
THE SECRETARY TO ACCORD "RECOGNITION AND ENCOURAGEMENT" TO COOPERATIVE
MARKETING ASSOCIATIONS.  P. 464. 

4.  NOR IS A DIFFERENT RESULT REQUIRED BY THE LEGISLATIVE HISTORY OR
ADMINISTRATIVE CONSTRUCTION.  PP. 465-466. 

BRANNAN, SECRETARY OF AGRICULTURE, V. STARK ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 7, DAIRYMEN'S LEAGUE CO-OPERATIVE ASSOCIATION,
INC. V. STARK ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

THE CASE IS STATED IN THE OPINION.  THE JUDGMENT BELOW IS AFFIRMED,
P. 466. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS ACTION BY DAIRY FARMERS, NONMEMBERS OF COOPERATIVE ASSOCIATIONS,
CONCERNS 1941 AMENDMENTS TO AN ORDER OF THE SECRETARY OF AGRICULTURE
DEALING WITH THE MARKETING OF MILK IN THE BOSTON AREA.  IT WAS
PREVIOUSLY HERE AS STARK V. WICKARD, 321 U.S. 288 (1944), WHERE IT WAS
HELD THAT THE RESPONDENTS HAD SUCH AN INTEREST IN THE ORDER AS TO GIVE
THEM LEGAL STANDING TO OBJECT TO THOSE OF ITS PROVISIONS HERE UNDER
ATTACK.  UPON REMAND THE PROVISIONS WERE HELD INVALID BY THE DISTRICT
COURT, 82 F. SUPP. 614, AND THAT DECISION WAS AFFIRMED IN THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  87 U.S. APP.  D.C. 388,
185 F.2D 871.  WE GRANTED CERTIORARI.  341 U.S. 908. 

THE QUESTION NOW PRESENTED IS WHETHER THOSE AMENDMENTS TO THE ORDER
WHICH PROVIDE FOR CERTAIN PAYMENTS TO COOPERATIVE ASSOCIATIONS ARE
WITHIN THE AUTHORITY GRANTED THE SECRETARY BY THE AGRICULTURAL
MARKETING AGREEMENT ACT OF 1937.  (FN1)  THE RESPONDENTS SEEK TO ENJOIN
THE ENFORCEMENT OF THE PROVISIONS IN QUESTION. 

THE PURPOSE OF THE ACT AND THE NATURE OF THE SECRETARY'S ORDER NO. 4
THEREUNDER (FN2) ARE SET OUT IN SOME DETAIL IN STARK V. WICKARD, SUPRA,
AT 291-302.  IT IS HERE SUFFICIENT TO NOTE THE FOLLOWING ASPECTS OF
ORDER NO. 4, AS AMENDED:  IN THE ORDER, ISSUED PURSUANT TO THE ACT, THE
SECRETARY DIVIDED ALL MILK MARKETED IN THE GREATER BOSTON AREA INTO
CLASS I, WHICH IS SOLD AS FLUID MILK, AND CLASS II, WHICH IS USED FOR
OTHER PURPOSES SUCH AS THE MANUFACTURE OF BUTTER AND CHEESE.  THE ORDER
PROVIDES FOR THE FIXING OF MINIMUM PRICES TO BE PAID BY HANDLERS FOR
EACH OF THESE CLASSES OF MILK.  EACH HANDLER PAYS FOR MILK IN
ACCORDANCE WITH THE AMOUNT OF EACH CLASS HE HAS PURCHASED.  PRODUCERS,
HOWEVER, ARE PAID THE SAME PRICE FOR MILK DELIVERED NO MATTER WHAT USE
IS MADE OF THE PARTICULAR MILK BY THE HANDLER.  THE MARKET
ADMINISTRATOR COMPUTES, ON THE BASIS OF PRICES PAID BY HANDLERS, THE
VALUE OF ALL MILK SOLD IN THE AREA EACH MONTH.  AFTER MAKING CERTAIN
ADJUSTMENTS, HE DIVIDES THAT VALUE, AS ADJUSTED, BY THE TOTAL QUANTITY
OF MILK SOLD IN THE AREA DURING THE MONTH, TO DETERMINE THE "BLENDED
PRICE," WHICH IS THE PRICE ACTUALLY PAID THE PRODUCER.  ONE ADJUSTMENT
MADE IN DETERMINING THE BLENDED PRICE IS THE DEDUCTION PROVIDING FOR
THE DISPUTED PAYMENTS TO COOPERATIVES.  (FN3)  THIS DEDUCTION IS THUS A
"A BURDEN ON EVERY AREA SALE."  STARK V. WICKARD, SUPRA, AT 303. 
"APPARENTLY, IT IS THE ONLY DEDUCTION THAT IS AN UNRECOVERABLE CHARGE
AGAINST THE PRODUCERS.  THE OTHER ITEMS DEDUCTED UNDER THE ORDER ARE
FOR A REVOLVING FUND OR TO MEET DIFFERENTIALS IN PRICE BECAUSE OF
LOCATION, SEASONAL DELIVERY, ET CETERA."  ID., AT 301.  THE EFFECT OF
THE DEDUCTION AND THE CORRELATIVE PAYMENTS TO COOPERATIVES IS TO REDUCE
THE AMOUNT WHICH PRODUCERS, SUCH AS RESPONDENTS, WHO ARE NOT MEMBERS OF
COOPERATIVES WOULD OTHERWISE RECEIVE FOR THEIR MILK, AND TO INCREASE
CORRESPONDINGLY THE RECEIPTS OF COOPERATIVES.  (FN4)  WE MUST DETERMINE
WHETHER THE SECRETARY WAS AUTHORIZED BY THE STATUTE TO INCLUDE THE
PROVISIONS REQUIRING THIS DEDUCTION AND THESE PAYMENTS IN THE ORDER. 
NO QUESTION IS PRESENTED AS TO THE ADEQUACY OF THE EVIDENCE TO SUPPORT
THE FINDINGS OF THE SECRETARY, BUT RATHER, A QUESTION AS TO THE POWER
GRANTED THE SECRETARY BY CONGRESS. 

THE DISPUTED PROVISIONS WERE INTRODUCED INTO THE BOSTON ORDER IN
1941, AFTER HEARINGS CALLED BY THE SECRETARY.  AFFIDAVITS, FILED BY
REPRESENTATIVES OF THE SECRETARY IN SUPPORT OF HIS MOTION FOR SUMMARY
JUDGMENT IN THE DISTRICT COURT, SHOW THE FOLLOWING:  A MAJOR ISSUE AT
THE HEARINGS WAS THE AMOUNT OF A UNIFORM ALLOWANCE, PREVIOUSLY 26 CENTS
PER HUNDREDWEIGHT, WHICH WAS REFLECTED IN THE PRICE PAID BY ALL
HANDLERS FOR CLASS II MILK.  (FN5)  THIS ALLOWANCE RESULTED IN A LOWER
PRICE TO HANDLERS FOR CLASS II MILK THAN FOR CLASS I MILK.  IT WAS
INTENDED TO DEFRAY THE COST OF HANDLING SURPLUS MILK.  THERE WAS A
CONSIDERABLE VARIANCE IN MILK PLANT COSTS WHICH WAS THOUGHT TO MAKE
CONTINUANCE OF A UNIFORM RATE UNDESIRABLE.  COOPERATIVE PLANTS SHOWED
HIGHER COSTS THAN THOSE OF PROPRIETARY HANDLERS.  THAT DIFFERENCE WAS
ATTRIBUTABLE NOT ONLY TO THE COOPERATIVES' MAINTENANCE OF A RESERVE
SUPPLY TO MEET IRREGULAR DEMANDS OF PROPRIETARY HANDLERS FOR CLASS I
MILK, BUT ALSO TO OVERCAPITALIZATION AND EXCESS CAPACITY WHICH HAD
EXISTED PRIOR TO ANY FEDERAL REGULATION.  TO MEET THESE HIGHER COSTS
COOPERATIVES PROPOSED A LOWER UNIFORM ALLOWANCE FOR CLASS II MILK,
COUPLED WITH A PAYMENT TO COOPERATIVES ONLY FOR MARKET SERVICES,
ALTHOUGH THEY HAD ENGAGED IN THE ACTIVITIES CLAIMED TO CONSTITUTE
MARKET SERVICES FOR YEARS WITHOUT ANY SUCH PAYMENT.  IN THE AMENDMENTS
RESULTING FROM THE HEARINGS, THE UNIFORM ALLOWANCE TO HANDLERS WAS
REDUCED FROM 26 CENTS TO 21 1/2 CENTS, WHILE AT THE SAME TIME THE
PROVISIONS HERE CONTESTED, REQUIRING PAYMENTS TO COOPERATIVES ALONE,
WERE INTRODUCED. 

ITS PRODUCTS SHALL CONTAIN ONE OR MORE OF CERTAIN ENUMERATED TERMS AND
CONDITIONS, "AND (EXCEPT AS PROVIDED IN SUBSECTION (7)) NO OTHERS." 
(FN6)  IT IS PARAGRAPH (D) OF SUBSECTION (7) UPON WHICH THE SECRETARY
RELIES.  THAT PARAGRAPH AUTHORIZES PROVISIONS "INCIDENTAL TO, AND NOT
INCONSISTENT WITH, THE TERMS AND CONDITIONS SPECIFIED IN SUBSECTIONS
(5), (6), AND (7) AND NECESSARY TO EFFECTUATE THE OTHER PROVISIONS OF
SUCH ORDER."  (FN7)  THE PROVISIONS HERE IN QUESTION ARE NOT
SPECIFICALLY AUTHORIZED BY ANY PART OF THE ACT.  BOTH COURTS BELOW
THOUGHT THESE PROVISIONS TO BE NEITHER INCIDENTAL NOR NECESSARY, AND TO
BE INCONSISTENT WITH TERMS SPECIFIED IN THE NAMED SUBSECTIONS.  (FN8) 

THE PAYMENTS TO THE COOPERATIVE ASSOCIATIONS ARE SAID TO BE JUSTIFIED
AS REMUNERATION FOR SERVICES PERFORMED FOR THE MARKET BY THE
ASSOCIATIONS.  TO QUALIFY FOR THE PAYMENTS, AN ASSOCIATION MUST MEET
EIGHT REQUIREMENTS LISTED IN THE ORDER.  (FN9)  BUT NONE OF THESE SHOWS
ANY INDICATION THAT THE ACTIVITY IT PRESCRIBES WILL BENEFIT NONMEMBERS,
WITH THE POSSIBLE EXCEPTION OF THE SEVENTH, WHICH REQUIRES THAT THE
ASSOCIATION COLLABORATE "WITH SIMILAR ASSOCIATIONS IN ACTIVITIES
INCIDENT TO THE MAINTENANCE AND STRENGTHENING OF COLLECTIVE BARGAINING
BY PRODUCERS AND THE OPERATION OF A PLAN OF UNIFORM PRICING OF MILK TO
HANDLERS."  (FN10)  EVEN IF THIS REQUIREMENT COMPREHENDS A SERVICE TO
NONMEMBER PRODUCERS SUBSTANTIAL ENOUGH TO BE SIGNIFICANT IN DETERMINING
THE VALIDITY OF A MANDATORY CONTRIBUTION FROM THEM TO COOPERATIVES, IT
DOES NOT SUPPORT THE EXACTION IN ISSUE, WHICH CONCEDEDLY IS BASED
MAINLY UPON OTHER SERVICES PRIMARILY PERFORMED FOR MEMBERS. 

INDEED, THOSE "SERVICES" WHICH THE SECRETARY PRINCIPALLY URGES AS
JUSTIFYING THE PAYMENTS DO NOT APPEAR AMONG THE EXPRESSED PREREQUISITES
FOR THE PAYMENTS.  CHIEF AMONG THE ACTIVITIES CLAIMED TO BENEFIT ALL
PRODUCERS ARE THOSE WHICH TEND TO MAINTAIN AN ADEQUATE SUPPLY OF FLUID
MILK AT ALL TIMES AND TO DISPOSE OF SURPLUS SUPPLY.  A PRINCIPAL SOURCE
OF THE PROBLEMS OF MILK MARKETING IS THE SEASONAL CHARACTER OF MILK
PRODUCTION.  HERDS SUFFICIENT TO MEET THE DEMAND FOR FLUID MILK DURING
THE WINTER MONTHS PRODUCE MUCH MORE THAN ENOUGH TO SATISFY THAT DEMAND
DURING THE SUMMER MONTHS.  IT IS CONTENDED THAT THE COOPERATIVE
ASSOCIATIONS HANDLE A PROPORTIONATELY LARGER SHARE OF SURPLUS MILK THAN
OTHER HANDLERS.  IT APPEARS THAT THEY ENGAGE IN THE MANUFACTURE OF MILK
PRODUCTS AS A MEANS OF ABSORBING THE SURPLUS, AND OTHERWISE AID IN
OBVIATING THE "DUMPING" OF SURPLUS AND DISCOURAGING THE REDUCTION OF
HERDS TO A POINT BELOW THAT NECESSARY TO SUPPLY THE DEMAND IN THE
SEASON OF LOW PRODUCTION.  IT MAY BE CONCEDED THAT THESE ACTIVITIES ARE
INDIRECTLY BENEFICIAL TO THE WHOLE MARKET, EVEN THOUGH THEY ARE ENGAGED
IN FOR THE DIRECT ADVANTAGE OF MEMBERS ONLY.  HOWEVER, PROPRIETARY
HANDLERS ALSO CARRY ON ACTIVITIES OF THIS KIND, AND THEIR PLANTS HANDLE
TWO-THIRDS AS MUCH SURPLUS MILK AS DO THOSE OF THE COOPERATIVES. 
(FN11)  PRIOR TO AMENDMENT OF THE ORDER IN 1941, THE COST OF HANDLING
SURPLUS MILK WAS RECOGNIZED IN THE UNIFORM 26 CENTS ALLOWANCE TO ALL
HANDLERS OF CLASS II MILK, BUT ONLY COOPERATIVE ASSOCIATIONS NOW
RECEIVE THE PAYMENTS IN ISSUE HERE.  IT IS CLEAR THAT THE ASSOCIATIONS
ARE IN NO WAY REQUIRED TO HANDLE ANY OF THE SURPLUS MILK OF
NONMEMBERS.  MORE SIGNIFICANT, THERE IS NO REQUIREMENT IN THE ORDER
THAT THE ASSOCIATIONS TAKE ANY ACTION DIRECTED TOWARD SOLUTION OF THE
PROBLEM, EVEN WITH RESPECT TO SURPLUS MILK OF THEIR MEMBERS.  (FN12) 

OTHER "SERVICES" OF THE COOPERATIVES WHICH ARE CLAIMED TO BE
BENEFICIAL TO ALL PRODUCERS ARE, AS THEY AFFECT THE ISSUE HERE,
RELATIVELY INSIGNIFICANT.  THESE ACTIVITIES ARE, LIKE THE OTHERS,
PRIMARILY DESIGNED FOR THE ADVANTAGE OF MEMBERS, ALTHOUGH THEY MAY
SOMETIMES INCIDENTALLY BENEFIT THE WHOLE MARKET.  THEY GENERALLY AMOUNT
TO NO MORE THAN PLAYING THE PART OF AN ALERT, INTELLIGENT, ORGANIZED
PARTICIPANT IN THE MARKET.  THEY INCLUDE SUCH FUNCTIONS AS EMPLOYING
ECONOMISTS TO STUDY THE NEEDS OF THE INDUSTRY, PARTICIPATING IN
HEARINGS ON ORDERS SUCH AS THAT INVOLVED HERE, BEING ATTENTIVE TO
CHANGING FACTORS IN THE MARKET, AND MAINTAINING THE COOPERATIVE
ORGANIZATIONS BY PROMOTIONAL WORK TO SHOW FARMERS THE BENEFITS OF
COOPERATION AND BY EDUCATIONAL WORK AMONG MEMBERS.  ONE MAY OBSERVE
SOME INCONGRUITY IN REQUIRING SOME PRODUCERS TO PAY OTHERS FOR
VIGOROUSLY PROSECUTING THEIR OWN INTERESTS, ESPECIALLY WHERE THEIR
INTERESTS MAY SOMETIMES CONFLICT WITH THOSE OF THE PRODUCERS BURDENED
WITH THE PAYMENTS. 

IN THESE CIRCUMSTANCES, WE CANNOT SAY THAT THE DISPUTED PROVISIONS
FALL WITHIN THE AUTHORITY GRANTED BY THE CATCHALL PHRASES OF SEC.
8C(7)(D) OF THE ACT.  WE NOTE AT THE OUTSET THAT SEC. 8C(5) STATES IN
SPECIFIC AND LENGTHY DETAIL THE PROVISIONS WHICH MAY BE INCLUDED IN
MILK MARKETING ORDERS.   THAT SUBSECTION LAYS DOWN COMPREHENSIVE
DIRECTIONS FOR CLASSIFICATION, PRICING, AND THE OPERATION OF THE
EQUALIZING POOL MECHANISM, PARTICULARLY AS TO ADJUSTMENTS AND
DEDUCTIONS EMPLOYED IN DETERMINING THE BLENDED PRICE.  BUT SEC. 8C(5)
DOES NOT AUTHORIZE THE PROVISIONS CHALLENGED HERE.  SECTION 8C(7)
AUTHORIZES A CONGERIES OF GENERAL TERMS WHICH MAY BE INCLUDED IN ALL
MARKETING ORDERS, INCLUDING THOSE DEALING WITH COMMODITIES OTHER THAN
MILK AND MILK PRODUCTS.  THE SECRETARY CLAIMS AUTHORITY FOR THE
PROVISIONS IN QUESTION IS GIVEN BY THE LAST PARAGRAPH OF THIS OMNIBUS
SUBSECTION, A PARAGRAPH AUTHORIZING THE INCLUSION OF AUXILIARY
PROVISIONS "INCIDENTAL TO  ...  THE TERMS AND CONDITIONS SPECIFIED IN
SUBSECTIONS (5), (6), AND (7)."  (FN13)  YET IT IS CLAIMED THAT THE
CONTESTED PROVISIONS ARE OF SUCH BASIC IMPORTANCE THAT THEIR VALIDITY
MAY BE CRUCIAL TO THE SUCCESS OF THE WHOLE MILK MARKETING PROGRAM.  WE
DO NOT THINK IT LIKELY THAT CONGRESS, IN FASHIONING THIS INTRICATE
MARKETING ORDER MACHINERY, WOULD THUS HANG ONE OF THE MAIN GEARS ON THE
TAIL PIPE.  THE CONCLUSION THAT THESE PROVISIONS ARE NOT "INCIDENTAL"
TO THE SPECIFIED TERMS IS FURTHER SUPPORTED BY THE PRESENCE OF SEC.
8C(5)(E), EXPRESSLY AUTHORIZING DEDUCTIONS FROM PAYMENTS TO PRODUCERS
FOR OTHER, SPECIFIED SERVICES, AND INDICATING THE LIKELIHOOD OF SIMILAR
SPECIFIC AUTHORIZATION FOR THE CONTESTED DEDUCTIONS IF CONGRESS
INTENDED THAT THEY SHOULD BE MADE.  FINALLY, THE PROVISIONS CANNOT BE
INCIDENTAL TO THE ENUMERATED TERMS AND CONDITIONS SINCE THEY ARE
INCONSISTENT THEREWITH. 

THE PAYMENTS TO COOPERATIVES ARE INCONSISTENT WITH SEC. 8C(5)(A),
WHICH PROVIDES THAT ALL HANDLERS SHALL PAY UNIFORM PRICES FOR EACH
CLASS OF MILK, SUBJECT TO CERTAIN ADJUSTMENTS OF NO CONCERN HERE.  THE
DISCRIMINATORY EFFECT OF THE PAYMENTS BECOMES THE MORE EVIDENT WHEN
THEY ARE CONSIDERED IN CONTEXT WITH THE REDUCTION IN THE UNIFORM
ALLOWANCE TO ALL HANDLERS ON THE PRICE OF CLASS II MILK.  THAT
REDUCTION WAS SIMULTANEOUS WITH THE ESTABLISHMENT OF THE SYSTEM OF
PAYMENTS TO BE MADE TO COOPERATIVES ONLY AND TO BE FUNDED BY DEDUCTIONS
FROM PRICES PAID ALL PRODUCERS.  THE RESULT WOULD HAVE BEEN
SUBSTANTIALLY SIMILAR IF THE ALLOWANCE TO PROPRIETARY HANDLERS HAD BEEN
REDUCED WHILE THE ALLOWANCE TO COOPERATIVES HAD BEEN PERMITTED TO
REMAIN AT ITS PREVIOUS HIGHER LEVEL.  SUCH A LACK OF UNIFORMITY IN
PRICES PAID BY HANDLERS WOULD CLEARLY HAVE CONTRAVENED SEC. 8C(5)(A). 

THE DEDUCTION FOR PAYMENTS TO COOPERATIVES IS INCONSISTENT WITH
8C(5)(B), WHICH REQUIRES THE PAYMENT OF UNIFORM PRICES TO ALL PRODUCERS
FOR ALL MILK DELIVERED, SUBJECT TO CERTAIN ADJUSTMENTS NOT HERE
PERTINENT.  IT HAS BEEN CONTENDED THAT THE DEDUCTION DOES NOT AFFECT
THE UNIFORM PRICE OF MILK, BUT REPRESENTS ONLY A REIMBURSEMENT FOR
SERVICES.  THE ARGUMENT SEEMS TO BE THAT ALL PRODUCERS RECEIVE A
UNIFORM PRICE WHILE THE DEDUCTION MERELY CONSTITUTES A CHARGE TO ALL
PRODUCERS FOR SERVICES, A CHARGE WHICH HAPPENS TO BE PAID CERTAIN
ASSOCIATIONS OF PRODUCERS BECAUSE THOSE ASSOCIATIONS PERFORM THE
SERVICES.  THE FACT REMAINS THAT THE RECEIPTS OF NONMEMBERS RESULTING
FROM DELIVERY OF A GIVEN QUANTITY OF MILK ARE SMALLER THAN THOSE OF THE
ASSOCIATIONS AND THEIR MEMBERS.  THIS IS TRUE BECAUSE NONMEMBERS ARE
PAID ONLY THE BLENDED PRICE WHILE MEMBERS RECEIVE, THROUGH THEIR
ASSOCIATIONS, THE DISPUTED PAYMENTS IN ADDITION TO THE BLENDED PRICE. 
ALTHOUGH MADE TO MEMBERS COLLECTIVELY, THESE PAYMENTS NECESSARILY
REDOUND TO MEMBERS INDIVIDUALLY.  THUS, IF THEY ARE USED TO PAY THE
COSTS OF THE ASSOCIATIONS, THEY REDUCE PRO TANTO THE CONTRIBUTIONS
WHICH ARE REQUIRED FROM INDIVIDUAL MEMBERS.  BUT WE NEED NOT GO FURTHER
THAN TO HOLD THAT THE ARGUMENT CANNOT NEGATE INCONSISTENCY WITH THE
UNIFORM PRICE REQUIREMENT WHERE, AS HERE, THE SERVICES FOR WHICH THE
PAYMENT IS MADE ARE PERFORMED FOR THE DIRECT BENEFIT OF THE
COOPERATIVES' MEMBERSHIPS, ARE BUT INCIDENTALLY HELPFUL TO OTHER
PRODUCERS, AND ARE NOT A REQUIRED CONDITION TO RECEIPT OF THE
PAYMENTS. 

SINCE THE PROVISIONS FOR PAYMENTS TO COOPERATIVES ARE NOT INCIDENTAL
TO SEC. 8C(5) AND (7), BUT ARE INCONSISTENT WITH THE FORMER SUBSECTION,
WE NEED NOT DETERMINE WHETHER THEY ARE "NECESSARY TO EFFECTUATE THE
OTHER PROVISIONS" (FN14) OF THE ORDER, THE THIRD REQUIREMENT OF SEC.
8C(7)(D). 

WHEN THE DIRECTLY RELEVANT PROVISIONS OF THE ACT THUS DEMONSTRATE
LACK OF AUTHORITY FOR THE PAYMENTS TO COOPERATIVES, NO POWER TO REQUIRE
THEM CAN BE IMPLIED FROM THE GENERAL INSTRUCTION OF SEC. 10(B)(1) TO
THE SECRETARY, DIRECTING HIM TO ACCORD "RECOGNITION AND ENCOURAGEMENT"
TO COOPERATIVE ASSOCIATIONS.  (FN15) 

WITHOUT SUPPORT IN THE WORDS OF THE STATUTE THE CHALLENGED PROVISIONS
MUST FALL, FOR NEITHER LEGISLATIVE HISTORY NOR ADMINISTRATIVE
CONSTRUCTION OFFERS ANY COGENT REASONS FOR A CONTRARY RESULT. 
AVAILABLE INDICIA OF CONGRESSIONAL INTENT AT THE TIME OF ENACTMENT LEND
WEIGHT TO THE CONTENTION THAT SPECIFIC PROVISION WOULD HAVE BEEN MADE
FOR THIS KIND OF PAYMENTS TO COOPERATIVES IF THEY WERE MEANT TO BE
MADE.  (FN16)  ATTEMPTED AMENDMENT LATER TO PROVIDE AUTHORIZATION FOR
THE PAYMENTS, AND THE ACCOMPANYING DISCUSSION IN CONGRESS, ARE, AS A
WHOLE, INDECISIVE.  (FN17)  APPROVAL OF THE PAYMENTS BY CONGRESS CANNOT
BE INFERRED FROM ITS RATIFICATION, UPON PASSAGE OF THE AGRICULTURAL
MARKETING AGREEMENT ACT IN 1937, OF MARKETING ORDERS PREVIOUSLY ISSUED
UNDER THE AGRICULTURAL ADJUSTMENT ACT.  (FN18)  EVEN IF WE WERE TO
ACCEPT THE PROPOSITION THAT CONGRESS THERE INTENDED TO CONFER STATUTORY
AUTHORITY FOR ALL FUTURE PROVISIONS LIKE ANY OF THOSE THEN EXISTING IN
ANY MARKETING ORDER, WE WOULD REACH THE SAME CONCLUSION BECAUSE NEITHER
THE PROVISIONS FOR THESE PARTICULAR PAYMENTS NOR ANY CLOSELY ANALOGOUS
PROVISIONS WERE AT THAT TIME PRESENT IN ANY MARKETING ORDERS.  NOR HAVE
PROVISIONS BEARING SUBSTANTIAL SIMILARITY TO THOSE BEFORE US SINCE BEEN
INCLUDED IN OTHER ORDERS SO FREQUENTLY AS TO AMOUNT TO A CONSISTENT
ADMINISTRATIVE INTERPRETATION OF IMPORT IN CONSTRUING THE ACT.  (FN19)
MANY PROVISIONS FOR PAYMENTS TO COOPERATIVES APPEARING IN OTHER ORDERS
HAVE BEEN A KIND SPECIFICALLY AUTHORIZED BY THE STATUTE.  THUS, THE
PROVISION OF THE FIRST BOSTON MILK ORDER FOR A PRICE DIFFERENTIAL AS
BETWEEN COOPERATIVE MILK AND NONCOOPERATIVE MILK WAS UPHELD IN GREEN
VALLEY CREAMERY V. UNITED STATES, (FN20) AS A "MARKET DIFFERENTIAL"
AUTHORIZED BY SEC. 8C(5)(A)(1). 

WE HAVE NO OCCASION TO JUDGE THE EQUITY OR THE WISDOM OF THE PAYMENTS
TO COOPERATIVES INVOLVED IN THIS CASE.  WE HOLD THAT THEY ARE NOT
AUTHORIZED BY THE ACT.  AFFIRMED. 

FN1  50 STAT. 246, AS AMENDED, 7 U.S.C. SEC. 601 ET SEQ. THE ACT OF
1937 REENACTED AND AMENDED PROVISIONS OF THE AGRICULTURAL ADJUSTMENT
ACT OF 1933, 48 STAT. 31, AS AMENDED. 

FN2  7 CFR SECS. 904.1-904.110. 

FN3  SECTION 904.8(B) OF THE ORDER REQUIRES THE MARKET ADMINISTRATOR,
IN COMPUTING THE BLENDED PRICE, TO DEDUCT, AMONG OTHER ITEMS, THE TOTAL
AMOUNT OF COOPERATIVE PAYMENTS REQUIRED BY SEC. 904.10(B), WHICH
PROVIDES: 

"(B)  COOPERATIVE PAYMENTS.  ON OR BEFORE THE 25TH DAY AFTER THE END
OF EACH MONTH, EACH QUALIFIED ASSOCIATION SHALL BE ENTITLED TO RECEIVE
A COOPERATIVE PAYMENT FROM THE FUNDS PROVIDED BY HANDLERS' PAYMENTS TO
THE MARKET ADMINISTRATOR PURSUANT TO SEC. 904.9.  THE PAYMENT SHALL BE
MADE UNDER THE CONDITIONS AND AT THE RATES SPECIFIED IN THIS PARAGRAPH,
AND SHALL BE SUBJECT TO VERIFICATION OF THE RECEIPTS AND OTHER ITEMS
UPON WHICH SUCH PAYMENT IS BASED. 

"(1)  EACH QUALIFIED ASSOCIATION SHALL BE ENTITLED TO PAYMENT AT THE
RATE OF 1 CENT PER HUNDREDWEIGHT ON THE MILK WHICH ITS PRODUCER MEMBERS
DELIVER TO THE PLANT OF A HANDLER OTHER THAN A QUALIFIED ASSOCIATION;
EXCEPT ON MILK DELIVERED BY A PRODUCER WHO IS ALSO A MEMBER OF ANOTHER
QUALIFIED ASSOCIATION, AND ON MILK DELIVERED TO A HANDLER WHO FAILS TO
MAKE APPLICABLE PAYMENTS PURSUANT TO SEC. 904.9(B)(2) AND SEC. 904.11
WITHIN 10 DAYS AFTER THE END OF THE MONTH IN WHICH HE IS REQUIRED TO DO
SO.  IF THE HANDLER IS REQUIRED BY PARAGRAPH (E) OF THIS SECTION TO
MAKE DEDUCTIONS FROM MEMBERS OF THE ASSOCIATION AT A RATE LOWER THAN 1
CENT PER HUNDREDWEIGHT, THE PAYMENT PURSUANT TO THIS SUBPARAGRAPH SHALL
BE AT SUCH LOWER RATE. 

"(2)  EACH QUALIFIED ASSOCIATION SHALL BE ENTITLED TO PAYMENT AT THE
RATE OF 2 CENTS PER HUNDREDWEIGHT ON MILK RECEIVED FROM PRODUCERS AT A
PLANT OPERATED BY THAT ASSOCIATION."  7 CFR SEC. 904.10(B). 

FN4  THE TOTAL AMOUNT THUS PAID COOPERATIVES IN THE BOSTON AREA SINCE
1941 IS $1,521,028; IN ADDITION, MORE THAN $400,000 HAS BEEN DEPOSITED
IN A SPECIAL ACCOUNT TO AWAIT THE FINAL RESULT OF THIS LITIGATION. 
HOWEVER, THE PAYMENTS TO COOPERATIVES HAVE IN EACH YEAR CONSTITUTED NO
MORE THAN A FRACTION OF ONE PERCENT OF THE TOTAL VALUE OF MILK MARKETED
IN THE AREA. 

FN5  SEE, E.G., R. 60, 70-75. 

FN6  SEC. 8C(5), NOTE 1, SUPRA: 

"(5)  IN THE CASE OF MILK AND ITS PRODUCTS, ORDERS ISSUED PURSUANT TO
THIS SECTION SHALL CONTAIN ONE OR MORE OF THE FOLLOWING TERMS AND
CONDITIONS, AND (EXCEPT AS PROVIDED IN SUBSECTION (7)) NO OTHERS: 

"(A)  CLASSIFYING MILK IN ACCORDANCE WITH THE FORM IN WHICH OR THE
PURPOSE FOR WHICH IT IS USED, AND FIXING, OR PROVIDING A METHOD FOR
FIXING, MINIMUM PRICES FOR EACH SUCH USE CLASSIFICATION WHICH ALL
HANDLERS SHALL PAY, AND THE TIME WHEN PAYMENTS SHALL BE MADE, FOR MILK
PURCHASED FROM PRODUCERS OR ASSOCIATIONS OF PRODUCERS.  SUCH PRICES
SHALL BE UNIFORM AS TO ALL HANDLERS, SUBJECT ONLY TO ADJUSTMENTS FOR
(1) VOLUME, MARKET, AND PRODUCTION DIFFERENTIALS CUSTOMARILY APPLIED BY
THE HANDLERS SUBJECT TO SUCH ORDER, (2) THE GRADE OR QUALITY OF THE
MILK PURCHASED, AND (3) THE LOCATIONS AT WHICH DELIVERY OF SUCH MILK,
OR ANY USE CLASSIFICATION THEREOF, IS MADE TO SUCH HANDLERS. 

"(B)  PROVIDING: 

(I)  FOR THE PAYMENT TO ALL PRODUCERS AND ASSOCIATIONS OF PRODUCERS
DELIVERING MILK TO THE SAME HANDLER OF UNIFORM PRICES FOR ALL MILK
DELIVERED BY THEM:  PROVIDED, THAT EXCEPT IN THE CASE OF ORDERS
COVERING MILK PRODUCTS ONLY, SUCH PROVISION IS APPROVED OR FAVORED BY
AT LEAST THREE-FOURTHS OF THE PRODUCERS WHO, DURING A REPRESENTATIVE
PERIOD DETERMINED BY THE SECRETARY OF AGRICULTURE, HAVE BEEN ENGAGED IN
THE PRODUCTION FOR MARKET OF MILK COVERED IN SUCH ORDER OR BY PRODUCERS
WHO, DURING SUCH REPRESENTATIVE PERIOD, HAVE PRODUCED AT LEAST THREE
FOURTHS OF THE VOLUME OF SUCH MILK PRODUCED FOR MARKET DURING SUCH
PERIOD; THE APPROVAL REQUIRED HEREUNDER SHALL BE SEPARATE AND APART
FROM ANY OTHER APPROVAL OR DISAPPROVAL PROVIDED FOR BY THIS SECTION;
OR: 

(II)  FOR THE PAYMENT TO ALL PRODUCERS AND ASSOCIATIONS OF PRODUCERS
DELIVERING MILK TO ALL HANDLERS OF UNIFORM PRICES FOR ALL MILK SO
DELIVERED, IRRESPECTIVE OF THE USES MADE OF SUCH MILK BY THE INDIVIDUAL
HANDLER TO WHOM IT IS DELIVERED: 

SUBJECT, IN EITHER CASE, ONLY TO ADJUSTMENTS FOR (A) VOLUME, MARKET,
AND PRODUCTION DIFFERENTIALS CUSTOMARILY APPLIED BY THE HANDLERS
SUBJECT TO SUCH ORDER, (B) THE GRADE OR QUALITY OF THE MILK DELIVERED,
(C) THE LOCATIONS AT WHICH DELIVERY OF SUCH MILK IS MADE, AND (D) A
FURTHER ADJUSTMENT, EQUITABLY TO APPORTION THE TOTAL VALUE OF THE MILK
PURCHASED BY ANY HANDLER, OR BY ALL HANDLERS, AMONG PRODUCERS AND
ASSOCIATIONS OF PRODUCERS, ON THE BASIS OF THEIR MARKETINGS OF MILK
DURING A REPRESENTATIVE PERIOD OF TIME. 

"(C)  IN ORDER TO ACCOMPLISH THE PURPOSES SET FORTH IN PARAGRAPHS (A)
AND (B) OF THIS SUBSECTION (5), PROVIDING A METHOD FOR MAKING
ADJUSTMENTS IN PAYMENTS, AS AMONG HANDLERS (INCLUDING PRODUCERS WHO ARE
ALSO HANDLERS), TO THE END THAT THE TOTAL SUMS PAID BY EACH HANDLER
SHALL EQUAL THE VALUE OF THE MILK PURCHASED BY HIM AT THE PRICES FIXED
IN ACCORDANCE WITH PARAGRAPH (A) HEREOF. 

"(D)  PROVIDING THAT, IN THE CASE OF ALL MILK PURCHASED BY HANDLERS
FROM ANY PRODUCER WHO DID NOT REGULARLY SELL MILK DURING A PERIOD OF 30
DAYS NEXT PRECEDING THE EFFECTIVE DATE OF SUCH ORDER FOR CONSUMPTION IN
THE AREA COVERED THEREBY, PAYMENTS TO SUCH PRODUCER, FOR THE PERIOD
BEGINNING WITH THE FIRST REGULAR DELIVERY BY SUCH PRODUCER AND
CONTINUING UNTIL THE END OF TWO FULL CALENDAR MONTHS FOLLOWING THE
FIRST DAY OF THE NEXT SUCCEEDING CALENDAR MONTH, SHALL BE MADE AT THE
PRICE FOR THE LOWEST USE CLASSIFICATION SPECIFIED IN SUCH ORDER,
SUBJECT TO THE ADJUSTMENTS SPECIFIED IN PARAGRAPH (B) OF THIS
SUBSECTION (5). 

"(E)  PROVIDING (I) EXCEPT AS TO PRODUCERS FOR WHOM SUCH SERVICES ARE
BEING RENDERED BY A COOPERATIVE MARKETING ASSOCIATION, QUALIFIED AS
PROVIDED IN PARAGRAPH (F) OF THIS SUBSECTION (5), FOR MARKET
INFORMATION TO PRODUCERS AND FOR THE VERIFICATION OF WEIGHTS, SAMPLING,
AND TESTING OF MILK PURCHASED FROM PRODUCERS, AND FOR MAKING
APPROPRIATE DEDUCTIONS THEREFOR FROM PAYMENTS TO PRODUCERS, AND (II)
FOR ASSURANCE OF, AND SECURITY FOR, THE PAYMENT BY HANDLERS FOR MILK
PURCHASED. 

"(F)  NOTHING CONTAINED IN THIS SUBSECTION (5) IS INTENDED OR SHALL
BE CONSTRUED TO PREVENT A COOPERATIVE MARKETING ASSOCIATION QUALIFIED
UNDER THE PROVISIONS OF THE ACT OF CONGRESS OF FEBRUARY 18, 1922, AS
AMENDED, KNOWN AS THE 'CAPPER-VOLSTEAD ACT', ENGAGED IN MAKING
COLLECTIVE SALES OR MARKETING OF MILK OR ITS PRODUCTS FOR THE PRODUCERS
THEREOF, FROM BLENDING THE NET PROCEEDS OF ALL OF ITS SALES IN ALL
MARKETS IN ALL USE CLASSIFICATIONS, AND MAKING DISTRIBUTION THEREOF TO
ITS PRODUCERS IN ACCORDANCE WITH THE CONTRACT BETWEEN THE ASSOCIATION
AND ITS PRODUCERS:  PROVIDED, THAT IT SHALL NOT SELL MILK OR ITS
PRODUCTS TO ANY HANDLER FOR USE OR CONSUMPTION IN ANY MARKET AT PRICES
LESS THAN THE PRICES FIXED PURSUANT TO PARAGRAPH (A) OF THIS SUBSECTION
(5) FOR SUCH MILK. 

"(G)  NO MARKETING AGREEMENT OR ORDER APPLICABLE TO MILK AND ITS
PRODUCTS IN ANY MARKETING AREA SHALL PROHIBIT OR IN ANY MANNER LIMIT,
IN THE CASE OF THE PRODUCTS OF MILK, THE MARKETING IN THAT AREA OF ANY
MILK OR PRODUCT THEREOF PRODUCED IN ANY PRODUCTION AREA IN THE UNITED
STATES." 

FN7  SEC. 8C(7)(D), NOTE 1, SUPRA.  SUBSECTION 7 AUTHORIZES CERTAIN
GENERAL TERMS FOR ALL MARKETING ORDERS, INCLUDING BOTH THOSE RELATING
TO MILK AND ITS PRODUCTS AND THOSE RELATING TO OTHER COMMODITIES.  THE
TERMS THUS AUTHORIZED, ASIDE FROM PARAGRAPH (D), PROHIBIT UNFAIR
COMPETITION, PROVIDE FOR FILING OF SALES PRICES BY HANDLERS, AND
PROVIDE FOR SELECTION OF AN AGENCY TO IMPLEMENT THE ORDER. 

FN8  82 F. SUPP. 614, 618; 87 U.S. APP. D.C. 388, 397-399, 185 F.2D
871, 880-882. 

FN9  7 CFR SEC. 904.10(A): 

"(A)  APPLICATION AND QUALIFICATION FOR COOPERATIVE PAYMENTS.  ANY
COOPERATIVE ASSOCIATION OF PRODUCERS DULY ORGANIZED UNDER THE LAWS OF
ANY STATE MAY APPLY TO THE SECRETARY FOR A DETERMINATION THAT IT IS
QUALIFIED TO RECEIVE COOPERATIVE PAYMENTS IN ACCORDANCE WITH THE
PROVISIONS OF THIS SECTION.  UPON NOTICE OF THE FILING OF SUCH AN
APPLICATION, THE MARKET ADMINISTRATOR SHALL SET ASIDE FOR EACH MONTH,
FROM THE FUNDS PROVIDED BY HANDLERS' PAYMENTS TO THE MARKET
ADMINISTRATOR PURSUANT TO SEC. 904.9, SUCH AMOUNT AS HE ESTIMATES IS
AMPLE TO MAKE PAYMENT TO THE APPLICANT, AND HOLD IT IN RESERVE UNTIL
THE SECRETARY HAS RULED UPON THE APPLICATION.  THE APPLICANT
ASSOCIATION SHALL BE CONSIDERED TO BE A QUALIFIED ASSOCIATION ENTITLED
TO RECEIVE SUCH PAYMENTS FROM THE DATE FIXED BY THE SECRETARY, IF HE
DETERMINES THAT IT MEETS ALL OF THE FOLLOWING REQUIREMENTS. 

"(1)  IT CONFORMS TO THE REQUIREMENTS RELATING TO CHARACTER OF
ORGANIZATION, VOTING, DIVIDEND PAYMENTS, AND DEALING IN PRODUCTS OF
NONMEMBERS, WHICH ARE SET FORTH IN THE CAPPER-VOLSTEAD ACT AND IN THE
STATE LAWS UNDER WHICH THE ASSOCIATION IS ORGANIZED. 

"(2)  IT OPERATES AS A RESPONSIBLE PRODUCER-CONTROLLED MARKETING
ASSOCIATION EXERCISING FULL AUTHORITY IN THE SALE OF THE MILK OF ITS
MEMBERS. 

"(3)  IT SYSTEMATICALLY CHECKS THE WEIGHTS AND TESTS OF MILK WHICH
ITS MEMBERS DELIVER TO PLANTS NOT OPERATED BY THE ASSOCIATION. 

"(4)  IT GUARANTEES PAYMENT TO ITS MEMBERS FOR MILK DELIVERED TO
PLANTS NOT OPERATED BY THE ASSOCIATION. 

"(5)  IT MAINTAINS, EITHER INDIVIDUALLY OR TOGETHER WITH OTHER
QUALIFIED ASSOCIATIONS, A COMPETENT STAFF FOR DEALING WITH MARKETING
PROBLEMS AND FOR PROVIDING INFORMATION TO ITS MEMBERS. 

"(6)  IT CONSTANTLY MAINTAINS CLOSE WORKING RELATIONSHIPS WITH ITS
MEMBERS. 

"(7)  IT COLLABORATES WITH SIMILAR ASSOCIATIONS IN ACTIVITIES
INCIDENT TO THE MAINTENANCE AND STRENGTHENING OF COLLECTIVE BARGAINING
BY PRODUCERS AND THE OPERATION OF A PLAN OF UNIFORM PRICING OF MILK TO
HANDLERS. 

"(8)  IT IS IN COMPLIANCE WITH ALL APPLICABLE PROVISIONS OF THIS
SUBPART." 

FN10  IBID. 

FN11  IN 1939 (NO LATER STATISTICS ARE AVAILABLE IN THE RECORD),
THERE WERE 21 PLANTS IN THE BOSTON AREA WHICH WERE EQUIPPED FOR
MANUFACTURING MILK POWDER, CONDENSED MILK OR BUTTER, OF WHICH 13 WERE
COOPERATIVE AND 8 PROPRIETARY.  THE COOPERATIVE PLANTS HANDLED 60.2
PERCENT OF THE SURPLUS MILK THAT YEAR.  R. 66 AND 68. 

FN12  CONTRAST THE NEW YORK ORDER, PROVIDING FOR COMPARABLE PAYMENTS,
AT VARIOUS RATES, TO COOPERATIVES.  THAT ORDER EXPRESSLY REQUIRES THAT
AN ASSOCIATION, TO QUALIFY FOR ANY SUCH PAYMENTS, MUST ARRANGE FOR AND
SUPPLY "IN TIMES OF SHORT SUPPLY, CLASS I MILK TO THE MARKETING AREA,"
AND MUST SECURE "UTILIZATION OF MILK, IN TIMES OF LONG SUPPLY, IN A
MANNER TO ASSURE THE GREATEST POSSIBLE RETURN TO ALL PRODUCERS."  7
CFR, 1950 CUM.  SUPP., SEC. 927.9(F).  TO RECEIVE THE HIGHEST RATE OF
PAYMENTS UNDER THAT ORDER, IN CERTAIN CIRCUMSTANCES A COOPERATIVE MUST
"IN ADDITION TO THE OTHER QUALIFICATIONS  ...  BE DETERMINED BY THE
SECRETARY TO HAVE SUFFICIENT PLANT CAPACITY TO RECEIVE ALL THE MILK OF
PRODUCERS WHO ARE MEMBERS AND TO BE WILLING AND ABLE TO RECEIVE MILK
FROM PRODUCERS NOT MEMBERS."  ID., AT SEC. 927.9(F)(3).  AS PROPOSED AT
ONE POINT IN THE HEARINGS, THE BOSTON ORDER WOULD HAVE CONTAINED
REQUIREMENTS LIKE THOSE OF THE NEW YORK ORDER.  R. 233.  THEIR OMISSION
IN THE ORDER, AS FINALLY ISSUED, PRESUMABLY WAS DELIBERATE.  IN FACT,
THE SECRETARY ADMITS THAT MANY OF THE COOPERATIVES IN THE BOSTON AREA
WERE UNWILLING OR UNABLE TO PERFORM SERVICES SUCH AS THOSE REQUIRED BY
THE NEW YORK ORDER.  R. 24-25 AND 70. 

FN13  SEC. 8C(7)(D), NOTE 1, SUPRA.  SUBSECTION (6) HAS NO
APPLICATION TO ORDERS DEALING WITH MILK. 

FN14  SEC. 8C(7)(D), NOTE 1, SUPRA. 

FN15  SEC. 10(B)(1), NOTE 1, SUPRA. 

FN16  THE STATUTORY PROVISIONS SETTING FORTH THE TERMS WHICH MIGHT BE
INCLUDED IN MARKETING ORDERS WERE FIRST ENACTED IN AN AMENDMENT TO THE
AGRICULTURAL ADJUSTMENT ACT IN 1935.  49 STAT. 753.  THIS ENACTMENT
OCCURRED SHORTLY AFTER THE DECISIONS OF THIS COURT IN PANAMA REFINING
CO. V. RYAN, 293 U.S. 388 (1935), AND SCHECHTER POULTRY CORP. V. UNITED
STATES, 295 U.S. 495 (1935), PLACING LIMITATIONS ON THE DELEGATION OF
RULE-MAKING AUTHORITY TO ADMINISTRATIVE AGENCIES.  WITH THESE CASES
SPECIFICALLY IN MIND, CONGRESS SET FORTH WITH DELIBERATE PARTICULARITY
AND COMPLETENESS THE TERMS WHICH THE SECRETARY MIGHT INCLUDE IN
MARKETING ORDERS.  H.R. REP. NO. 1241, 74TH CONG., 1ST SESS. 8; S. REP.
NO. 1011, 74TH CONG., 1ST SESS. 8. 

FN17  S. 3426, 76TH CONG., 3D SESS.; S. REP. NO. 1719, 76TH CONG., 3D
SESS. S. 3426 WOULD HAVE CLEARLY AUTHORIZED PAYMENTS SUCH AS THOSE
CHALLENGED HERE.  IT PASSED THE SENATE, BUT WENT NO FURTHER.  AS TO THE
INCONCLUSIVE NATURE OF THE BILL AND ITS HISTORY, SEE THE OPINION OF THE
COURT OF APPEALS, 87 U.S. APP. D.C. 388, 400, 185 F.2D 871, 883. 

FN18  "NOTHING IN THIS ACT SHALL BE CONSTRUED AS INVALIDATING ANY
MARKETING AGREEMENT, LICENSE, OR ORDER, OR ANY REGULATION RELATING TO,
OR ANY PROVISION OF, OR ANY ACT OF THE SECRETARY OF AGRICULTURE IN
CONNECTION WITH, ANY SUCH AGREEMENT, LICENSE , OR ORDER WHICH HAS BEEN
EXECUTED, ISSUED, APPROVED, OR DONE UNDER THE AGRICULTURAL ADJUSTMENT
ACT, OR ANY AMENDMENT THEREOF, BUT SUCH MARKETING AGREEMENTS, LICENSES,
ORDERS, REGULATIONS, PROVISIONS, AND ACTS ARE HEREBY EXPRESSLY
RATIFIED, LEGALIZED, AND CONFIRMED."  50 STAT.  246, 249. 

FN19  OF THRITY-NINE CURRENTLY OUTSTANDING MILK MARKETING ORDERS,
ONLY FOUR CONTAIN PROVISIONS OF THE GENERAL NATURE OF THOSE IN
QUESTION.  ONE OF THESE IS THE BOSTON ORDER INVOLVED HERE; ANOTHER IS
THE NEW YORK ORDER, AS TO WHICH SEE NOTE 12, SUPRA. 

FN20  108 F.2D 342, 345 (C.A. 1ST CIR., 1939). 

MR. JUSTICE JACKSON AND MR. JUSTICE MINTON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE DOUGLAS
CONCUR, DISSENTING. 

I DISSENT AND WOULD SUSTAIN THE PROVISIONS OF THE SECRETARY OF
AGRICULTURE'S BOSTON MILK ORDER WHICH THE MAJORITY HERE INVALIDATES. 
THOSE PROVISIONS REQUIRE THAT COOPERATIVES BE REIMBURSED FOR A PART OF
THE COST THEY INCUR IN PERFORMING SERVICES WHICH THE SECRETARY AND THE
COURT OF APPEALS HAVE FOUND BENEFIT ALL DAIRY FARMERS IN THE BOSTON
MARKET AREA.  TWO OR THREE SENTENCES, OR CLAUSES IN THEM, OF TODAY'S
MAJORITY OPINION AVOW THAT THE COURT INVALIDATES THE PAYMENT PROVISIONS
SOLELY ON THE GROUND THAT THE SECRETARY IS WITHOUT STATUTORY AUTHORITY
TO INCLUDE THEM IN HIS ORDER.  THE REMAINDER OF THE COURT'S OPINION IS
NOT AT ALL LIMITED TO AN ATTEMPT TO JUSTIFY AN EXCLUSIVELY STATUTORY
HOLDING.  FOR DESPITE THE CLAUSE AT THE END OF THE COURT'S OPINION THAT
IT DOES NOT "JUDGE THE EQUITY OR THE WISDOM OF THE PAYMENTS," NEARLY
ALL OF ITS 15 PAGES ARE DEVOTED TO A STUDIED EFFORT TO LEAVE THE
IMPRESSION THAT THE PAYMENTS ARE UNFAIR HANDOUTS, GRATUITIES, OR
SUBSIDIES TO INEFFICIENTLY OPERATED COOPERATIVES.  IT SEEMS
APPROPRIATE, THEREFORE, TO EXPLAIN AT THE VERY OUTSET THE TRUE NATURE
OF THESE PAYMENTS AND THE CONSEQUENCES OF OUTLAWING THEM. 

IN GENERAL THE SECRETARY'S ORDER FIXES PRICES AND REGULATES
DISTRIBUTION OF MILK IN THE GREATER BOSTON AREA.  UNDER THIS MARKETING
SYSTEM THE PURCHASE PRICE OF ALL MILK SOLD BY FARMERS IN THE AREA IS
PAID INTO A COLLECTIVE FUND OR POOL.  AFTER DEDUCTION OF LEGALLY
AUTHORIZED AMOUNTS IT IS THE DUTY OF THE GOVERNMENT'S MARKET
ADMINISTRATOR TO DISTRIBUTE THE FUND SO THAT ALL CONTRIBUTING FARMERS
WILL RECEIVE SO FAR AS POSSIBLE EQUAL AMOUNTS FOR EQUAL QUANTITIES OF
MILK OF THE SAME QUALITY.  THE DIFFICULTY OF ACHIEVING THIS UNIFORMITY
OF PRICE AS BETWEEN COOPERATIVE AND NON-COOPERATIVE FARMERS IS
COMPLICATED BY MANY FACTORS.  NON-MEMBER FARMERS RECEIVE DIRECT PAYMENT
FOR THEIR MILK FROM THIS MARKET POOL FUND.  BUT HIGHLY MATERIAL HERE IS
THE FACT THAT THE POOL FUNDS ARE NOT DISTRIBUTED TO FARM COOPERATIVE
ASSOCIATION MEMBERS BUT INSTEAD ARE PAID DIRECTLY TO THE ASSOCIATIONS
OF WHICH THEY ARE MEMBERS.  THESE ASSOCIATIONS THEN DEDUCT CERTAIN
EXPENSES BEFORE DISTRIBUTING THE BALANCE TO THEIR MEMBER FARMERS.  MANY
OF THESE EXPENSES ARE INCURRED BY THE ASSOCIATION IN PERFORMING
BENEFICIAL MARKET-WIDE SERVICES WHICH BRING ABOUT HIGHER MILK PRICES
FOR ALL FARMERS.  FUND PAYMENTS TO NON-COOPERATIVE FARMERS, HOWEVER,
ARE SUBJECT TO NO SUCH ASSOCIATION DEDUCTIONS.  THE RESULT IS THAT
FARMER MEMBERS OF COOPERATIVES MAY GET LESS FOR THEIR MILK THAN NON
MEMBERS.  SEE UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533, 579,
580.  IN THIS WAY NON-MEMBERS CAN GET A FREE RIDE PAID FOR BY
COOPERATING FARMERS; THE LATTER HAVE ALWAYS OBJECTED TO THIS, REGARDING
IT AS A DOG-IN-THE-MANGER ATTITUDE AND AN UNFAIR MARKET PRACTICE. 
BEFORE THE GOVERNMENT STEPPED INTO THE MILK PICTURE, THE COOPERATING
FARMERS USED STRONG COERCIVE MEASURES TO COMPEL NON-COOPERATIVES TO
HELP PAY A FAIR SHARE OF COOPERATIVE COSTS IN RENDERING MARKET-WIDE
SERVICES.  AND FROM THE BEGINNING OF GOVERNMENT REGULATION IN THE
1930'S THE GOVERNMENT HAS ADOPTED MEASURES TO INSURE THAT NON-MEMBER
FARMERS PAY FOR THE BENEFITS THEY RECEIVE. 

THE PROVISIONS HERE NULLIFIED PRESCRIBE A LEGAL AND PEACEFUL METHOD
TO REQUIRE NON-COOPERATIVE FARMERS TO PAY THEIR FAIR SHARE OF MARKET
COSTS, THEREBY PREVENTING THE RECURRENCE OF THE KIND OF VIOLENT STRIFE
WITH WHICH THIS COUNTRY BECAME ALL TOO FAMILIAR BEFORE THE PRESENT
NATIONAL FARM POLICY WAS ADOPTED.  THE PROVISIONS HAVE BEEN A PART OF
THE BOSTON ORDER SINCE 1941 - ELEVEN YEARS.  IN ACCORDANCE WITH THEM
MORE THAN ONE AND A HALF MILLION DOLLARS HAVE BEEN PAID TO
COOPERATIVES.  (FN1)  IF ILLEGALLY RECEIVED, I SUPPOSE THE MONEY IS
ILLEGALLY HELD.  WHETHER THESE FARMER ASSOCIATIONS CAN SURVIVE THE
PANDORA'S BOX OF LAWSUITS THIS CASE IS LIKELY TO TURN LOOSE IS
ANYBODY'S GUESS.  PERHAPS MOST DAIRY FARMERS IN NEW ENGLAND WOULD NOT
OF THIER OWN ACCORD FILE SUITS AGAINST THE COOPERATIVES, FOR THE RECORD
INDICATES AN OVERWHELMING FARMER SUPPORT FOR THE MARKET ORDER INCLUDING
THESE CHALLENGED PROVISIONS.  (FN2)  IN FACT, THE FIVE FARMERS WHOSE
NAMES APPEAR AS CHALLENGERS OF THESE PROVISIONS ARE NOT THE PERSONS
MOST INTERESTED IN SABOTAGING THE BOSTON MILK ORDER.  EXPENSES OF THIS
LITIGATION, ALREADY MORE THAN $25,000 BY 1949, HAVE BEEN BORNE BY MILK
HANDLERS.  THESE HANDLERS HAVE NO FINANCIAL INTEREST IN THE FUND AND
DID NOT EVEN HAVE STANDING TO BRING THIS SUIT IN THEIR OWN NAME. 
UNITED STATES V. ROCK ROYAL CO-OP., SUPRA, 561.  THE ATTITUDE OF THESE
PROPRIETORS IN THIS AND PAST ATTACKS ON COOPERATIVES JUSTIFIES A RATHER
STRONG INFERENCE THAT COOPERATIVES WILL CONTINUE TO BE DEFENDANTS IN
LAWSUITS PUSHED BY WELL-FINANCED ADVERSARIES. 

IT MAY BE SUGGESTED THAT DESPITE POSSIBLE FLOODS OF LITIGATION, THE
COOPERATIVES CAN BE SAVED FROM COMPLETE BANKRUPTCY BY STATUTES OF
LIMITATIONS, JUDICIALLY CREATED DEFENSES, FINESPUN LEGAL OR VERBAL
DISTINCTIONS, OR EVEN BY EMERGENCY CONGRESSIONAL LEGISLATION.  BUT IF
SOME MIGHT HAPPEN TO BEFRIEND COOPERATIVES IN THE FUTURE, THE BLOW
TODAY INFLICTED IS HARDLY CALCULATED TO MAKE COOPERATIVES VERY
ENTHUSIASTIC ABOUT PERFORMING THE IMPORTANT FUNCTIONS IN THE MARKET
PROGRAM THAT CONGRESS WANTED THEM TO.  (FN3)  MOREOVER, THESE
PARTICULAR NEW ENGLAND ASSOCIATIONS ARE NOT THE ONLY ONES PLACED IN
IMMINENT JEOPARDY BY TODAY'S HOLDING.  AS THE MAJORITY OPINION POINTS
OUT, COOPERATIVE ASSOCIATIONS IN OTHER AREAS HAVE BEEN RECEIVING
PAYMENTS FOR MARKET-WIDE SERVICES UNDER SIMILAR MARKET ORDERS OF THE
SECRETARY.  UNDER SUCH PROVISIONS MILLIONS OF DOLLARS HAVE BEEN
RECEIVED BY THESE OTHER COOPERATIVES.  THEY TOO HAVE LITTLE IF ANY
CHANCE TO ESCAPE HARASSMENT FROM THE SWARM OF LAWSUITS THIS CASE
INVITES.  (FN4) 

CONGRESS INTENDED COOPERATIVES TO BE WHAT THEY ACTUALLY HAVE BEEN -
THE BACKBONE OF THE FARM MARKET SYSTEM AND THE DYNAMO WHICH MAKES THE
SYSTEM FUNCTION.  WITHOUT THEM, MANY THINK THAT PROGRAM WOULD HAVE BEEN
A FLOP; WITH THEIR HELP COMPARATIVE PEACE HAS NOW COME TO AN INDUSTRY
THAT IN THE TWENTIES AND EARLY THIRTIES WAS DIVIDED INTO FIGHTING
FACTIONS ENGAGING IN BITTER WARFARE AND BLODDSHED ON THE NATION'S
HIGHWAYS.  REGARDLESS OF THE CONSEQUENCES, HOWEVER, THE MAJORITY'S BODY
BLOW TO COOPERATIVES WOULD BE JUSTIFIED IF REQUIRED BY CONGRESSIONAL
COMMAND.  BUT CONGRESS HAS EXPRESSED ITS DESIRE PRECISELY TO THE
CONTRARY.  THIS IS SHOWN, I BELIEVE BEYOND ALL DOUBT, BY THE LANGUAGE,
HISTORY, BACKGROUND AND ADMINISTRATION OF THE MARKETING LAWS 

I FEEL DEEPLY THAT THE COURT'S ACTION IN THIS CASE CHECKMATES THE
CONGRESSIONAL WILL, UNJUSTIFIABLY INFLICTS A GRIEVOUS WRONG ON
COOPERATIVES, AND PLAYS HAVOC WITH A NATIONAL FARM POLICY THAT IS
WORKING PEACEFULLY AND WELL.  THE JUDICIARY SHOULD NOT CAVALIERLY THROW
A MONKEY WRENCH INTO ITS MACHINERY. 

HISTORY, BACKGROUND, AND ADMINISTRATION OF THE ACT.  - AN INHERENT
PROBLEM OF THE MILK INDUSTRY IS THAT COWS PRODUCE MORE MILK AT SOME
SEASONS OF THE YEAR THAN AT OTHERS.  THIS MEANS A SEASONAL EXCESS OF
SUPPLY OVER DEMAND WHICH CAN RESULT IN DISASTROUS PRICE CUTTING IN AN
UNCONTROLLED MARKET.   IN AN ATTEMPT TO AVOID THE HARMFUL CONSEQUENCES
OF PRICE CUTTING FARMERS COMBINED IN COOPERATIVE ASSOCIATIONS WHICH
AGREED TO FIND A MARKET FOR ALL THE MILK THEIR MEMBERS PRODUCED. 
THROUGH THE CHANNEL OF COLLECTIVE BARGAINING, THEY WERE ABLE TO OBTAIN
BETTER PRICES AND A WIDER MARKET FOR FLUID MILK.  WITH THE SURPLUSAGE
THAT STILL REMAINED, THEY TURNED TO THE MANUFACTURE OF CHEESE, BUTTER,
AND OTHER BY-PRODUCTS, EVEN THOUGH THEIR MANUFACTURING PLANTS WERE
FORCED TO REMAIN IDLE DURING THE SEASONS OF NO SURPLUSAGE.  CONGRESS
ITSELF RECOGNIZED THE INHERENT VALUE OF THESE COOPERATIVE
ORGANIZATIONS, AND WITH A VIEW TO HELPING FARMERS IMPROVE THEIR MARKET
POSITION, IT PASSED THE CAPPER-VOLSTEAD ACT IN 1922 (FN5) AND THE
AGRICULTURAL MARKETING ACT OF 1929.  (FN6) 

THESE ACTS TREATED COOPERATIVE ASSOCIATIONS AS USEFUL GOVERNMENTAL
INSTRUMENTALITIES TO ACHIEVE CONGRESSIONAL AGRICULTURAL POLICIES.  WITH
SUCH HELP COOPERATIVES MADE PROGRESS, ALTHOUGH IN EVERY MARKET AREA
THERE WERE SOME PRODUCERS WHO REFUSED TO JOIN.  THESE NON-MEMBER
PRODUCERS, WITHOUT PAYING ANYTHING FOR IT, NEVERTHELESS RECEIVED DIRECT
ADVANTAGES FROM THE WORK OF THE COOPERATIVES IN RAISING MILK PRICES,
DIVERTING SURPLUSAGE, AND IMPROVING GENERAL MARKET CONDITIONS.  THIS
PRODUCED DEEP RESENTMENT ON THE PART OF COOPERATIVE-PRODUCERS WHICH
RESULTED IN BITTER STRIFE AND UNREST.  (FN7) 

THUS, AN ACUTE AGRICULTURAL PROBLEM HAS LONG BEEN ONE OF DEVISING
MEANS WHEREBY EACH PRODUCER WOULD PAY HIS FAIR SHARE OF THE COST OF
RENDERING NEEDED MARKET-WIDE SERVICES.  PRIOR TO PASSAGE OF THE
AGRICULTURAL ADJUSTMENT ACT OF 1933, THE COOPERATIVES THEMSELVES USED
THEIR BARGAINING POWER TO MEET THE SITUATION.  A 1929 CONTRACT BETWEEN
THE COOPERATIVE ASSOCIATION AND HANDLERS (PURCHASERS OF MILK FROM
PRODUCERS) IN THE CHICAGO MARKETING AREA ILLUSTRATES THE METHODS USED. 
(FN8)  ALL HANDLERS WERE REQUIRED TO AGREE NOT TO PURCHASE MILK FROM
NON-MEMBER PRODUCERS UNLESS THE LATTER AGREED TO A CERTAIN DEDUCTION. 
THIS DEDUCTION WAS EQUAL TO THAT THE HANDLERS WERE REQUIRED TO MAKE IN
THE CASE OF MILK PURCHASED FROM MEMBER-PRODUCERS.  IN BOTH INSTANCES
THE DEDUCTION WAS PAID BY THE HANDLERS TO THE COOPERATIVE TO DEFRAY ITS
EXPENSE INCURRED FOR THE SERVICES.  THIS PROCEDURE INSURED THAT NO
PRODUCER OF MILK RECEIVED BENEFITS WITHOUT PAYING SOMETHING FOR THEM. 

THE AGRICULTURAL ADJUSTMENT ACT OF 1933 EMPOWERED THE SECRETARY OF
AGRICULTURE TO REGULATE THE MILK INDUSTRY BY A SYSTEM OF LICENSING AND
MARKETING AGREEMENTS.  IN THE LICENSES ISSUED UNDER THIS ACT, THE
SECRETARY INCLUDED VARIOUS PROVISIONS RELATING TO PAYMENTS TO
COOPERATIVES FOR THE RENDITION OF MARKETING SERVICES.  SOME LICENSES
CONTAINED PROVISIONS SIMILAR TO THOSE OF THE CHICAGO CONTRACT OF 1929. 
(FN9)  OTHERS CONTAINED PROVISIONS WHICH REQUIRED ALL PRODUCERS WHO DID
NOT BELONG TO COOPERATIVE ASSOCIATIONS TO PAY "SERVICE CHARGES" TO
ORGANIZATIONS CREATED BY ORDER OF THE SECRETARY.  (FN10)  THESE
ORGANIZATIONS RENDERED THE SAME SERVICES WHICH COOPERATIVES DID AND
CHARGED THE SAME FOR THEM.  THUS ALL PRODUCERS WERE REQUIRED TO PAY
THEIR SHARE FOR MARKET SERVICES, EITHER DIRECTLY TO A PRODUCER-OWNED
ASSOCIATION OR TO AN ASSOCIATION SPONSORED BY THE SECRETARY TO FORCE
NON-MEMBERS TO PAY THEIR PART. 

IN 1935 CONGRESS AMENDED THE AGRICULTURAL ADJUSTMENT ACT TO PROVIDE
FOR MARKET REGULATION BY MEANS OF ORDERS.  THE FIRST BOSTON MILK ORDER
WAS ISSUED UNDER SEC. 8(B) OF THAT ACT AS AMENDED.  THAT ORDER REQUIRED
THE PAYMENT OF A HIGHER PRICE PER HUNDREDWEIGHT FOR COOPERATIVE MILK
THAN FOR NON-COOPERATIVE MILK.  THIS WAS BASED ON THE SECRETARY'S
FINDING THAT "THE DIFFERENTIAL IN PRICES TO ASSOCIATIONS OF PRODUCERS,
AND PRODUCERS, IS JUSTIFIED AS A REASONABLE ALLOWANCE FOR SERVICES
ACTUALLY PERFORMED BY ASSOCIATIONS OF PRODUCERS."  GREEN VALLEY
CREAMERY V. UNITED STATES, 108 F.2D 342, 345.  THIS DIFFERENTIAL WHICH
REMAINED IN THE ORDER FROM THE DATE IT WAS ISSUED IN 1936 UNTIL 1941
WAS HELD VALID BY THE COURT OF APPEALS FOR THE FIRST CIRCUIT IN GREEN
VALLEY CREAMERY V. UNITED STATES, SUPRA.  SEE ALSO UNITED STATES V.
ROCK ROYAL CO-OP., 307 U.S. 533, 562, 565.  FROM 1941 TO THE PRESENT
THE SECRETARY'S BOSTON ORDER HAS CONTAINED THE KIND OF COOPERATIVE
PAYMENT PROVISIONS NOW IN ISSUE, AND TREATED BY THE MAJORITY AS A
GRATUITY. 

IN SUMMARY, BEFORE 1933 COOPERATIVE ASSOCIATIONS FORCED PAYMENTS FOR
THEIR SERVICES BY EXERTION OF COLLECTIVE STRENGTH.  AFTER PASSAGE OF
THE AGRICULTURAL ADJUSTMENT ACT OF 1933 LICENSES ISSUED UNDER IT UP TO
1935 COMPELLED SUCH PAYMENTS.  CONGRESS AMENDED THE ACT IN 1935. 
COMMITTED REPORTS SHOW THAT ORDERS OF THE SECRETARY ISSUED UNDER THE
AMENDMENT SHOULD "FOLLOW THE METHODS EMPLOYED BY COOPERATIVE
ASSOCIATIONS OF PRODUCERS PRIOR TO THE ENACTMENT OF THE AGRICULTURAL
ADJUSTMENT ACT AND THE PROVISIONS OF LICENSES ISSUED" BETWEEN 1933 AND
1935.  (FN11)  THE SAME COMMITTEE REPORT IN EXPLAINING WHY THE
SECRETARY SHOULD RECOGNIZE AND ENCOURAGE COOPERATIVE ASSOCIATIONS "TO
PROMOTE EFFICIENT METHODS OF MARKETING AND DISTRIBUTION" SAID:  "IT HAS
BEEN FOUND FROM EXPERIENCE THAT THE PARTICIPATION BY  ...  ASSOCIATIONS
OF PRODUCERS HAS BEEN OF MATERIAL VALUE IN ADMINISTERING" THE
AGRICULTURAL PROGRAM.  (FN12)  THE 1937 AMENDMENT TO THE ACT WENT STILL
FURTHER AND "EXPRESSLY RATIFIED, LEGALIZED, AND CONFIRMED" ALL
"MARKETING AGREEMENTS, LICENSES, ORDERS, REGULATIONS, PROVISIONS, AND
ACTS" OF THE SECRETARY OF AGRICULTURE ISSUED UNDER THE FORMER ACT.  50
STAT. 246, 249.  SOME OF THE ORDERS AND LICENSES THUS EXPRESSLY
RATIFIED BY CONGRESS CONTAINED THE PROVISIONS REQUIRING NONMEMBERS TO
PAY FOR COLLECTIVE MARKET SERVICES.  AND A COMMITTEE REPORT ON THIS
1937 LEGISLATION REFERRED TO THE ACT'S MARKETING PROGRAM AS "VALUABLE
SUPPLEMENTS TO THE COOPERATIVE EFFORTS OF PRODUCERS, PARTICULARLY IN
THE CASE OF FRUITS, VEGETABLES, AND MILK."  (FN13)  FINALLY, IN 1948
CONGRESS AGAIN MANIFESTED ITS APPROVAL OF THE SECRETARY'S PROGRAM WHICH
AT THAT TIME INCLUDED THE VERY COOPERATIVE PAYMENTS NOW AT ISSUE. 
(FN14) 

THE COURT BRUSHES ASIDE THE FOREGOING HISTORY AND INVALIDATES THE
COOPERATIVE PAYMENT PROVISIONS.  ITS ASSERTED REASON FOR DOING SO IS
THAT STATUTORY AUTHORITY FOR THE PAYMENTS IS LACKING.  WE ARE LEFT IN
THE DARK AS TO WHETHER THE SECRETARY LACKS ALL AUTHORITY TO MAKE
PAYMENTS TO ANY AND ALL PERSONS, OR HAS AUTHORITY TO PAY EVERYBODY ELSE
EXCEPT COOPERATIVES, OR HAS AUTHORITY TO PAY EVERYBODY ELSE EXCEPT NEW
ENGLAND COOPERATIVES.  THE COURT'S OPINION LEADS ME TO BELIEVE THAT ITS
REAL BASIS FOR INVALIDATION IS A BELIEF THAT: 

(1)  THE PAYMENTS ARE A MERE GRATUITY, A SUBSIDY TO INEFFICIENTLY
OPERATED COOPERATIVES.  (FN15) 

(2)  THE SECRETARY'S ORDER PROPERLY CONSTRUED DOES NOT REQUIRE
COOPERATIVES TO PERFORM MARKET-WIDE SERVICES; THEREFORE THEY SHOULD BE
PAID NOTHING, REGARDLESS OF THE FACT THAT THEY ACTUALLY PERFORMED SUCH
SERVICES FOR THE PAST ELEVEN YEARS. 

(3)  IT IS EVIL AND ILLEGAL TO PAY COOPERATIVES FOR WORKING TO
BENEFIT A WHOLE GROUP OF WHICH THEY ARE A PART. 

FIRST.  IF THESE PAYMENTS WERE MERE GRATUITIES AS THE DISTRICT COURT
HELD AND AS INTIMATED BY THE MAJORITY, I TOO WOULD HOLD THEM ILLEGAL. 
HOWEVER, THEY CANNOT BE CONSIDERED GRATUITIES BECAUSE ADMINISTRATIVE
FINDINGS OF FACT AND THE WHOLE RECORD SHOW PRECISELY THE CONTRARY.  I
CANNOT AGREE THAT IT IS FOR THIS COURT TO REDETERMINE FACTS FOUND BY
THE SECRETARY AFTER AT LEAST THREE EXHAUSTIVE PUBLIC HEARINGS (FN16) -
FINDINGS WHICH WERE NOT EVEN CHALLENGED BY THE PARTIES.  THE
ADMINISTRATIVE HISTORY OF THE MARKETING ACT SHOWS CONCLUSIVELY THAT AT
THE TIME OF THE FIRST OF THESE HEARINGS IN 1941 THE RIGHT OF
COOPERATIVES TO RECEIVE PAYMENTS FOR MARKET-WIDE SERVICES WAS WELL
EASTABLISHED.  FROM THE EVIDENCE BEFORE THE SECRETARY AT THIS FIRST
HEARING HE CONCLUDED THAT THE PAYMENTS TO COOPERATIVES WERE JUSTIFIED
AND WOULD TEND TO EFFECTUATE THE PURPOSES OF THE ACT.  6 FED. REG.
3762, 7 CFR, 1941 SUPP., SEC. 904.0.  IN 1943 ANOTHER PUBLIC HEARING
WAS HELD AT WHICH AN UNSUCCESSFUL ATTEMPT WAS MADE TO ELIMINATE
COOPERATIVE PAYMENT PROVISIONS FROM THE ORDER.  ONE OF THE FINDINGS
RESULTING FROM THIS HEARING IS AS FOLLOWS: 

"THE PRESENT PLAN OF PAYMENTS TO COOPERATIVES, WHICH BECAME EFFECTIVE
AUGUST 1, 1941, WAS BASED ON THE CONSIDERATION THAT TO ACHIEVE THE
BENEFITS TO ALL PRODUCERS WHICH THE ORDER IS DESIGNED TO PROVIDE TWO
TYPES OF ACTIVITY BY PRODUCERS' COOPERATIVE MARKETING ORGANIZATIONS ARE
DESIRABLE:  (1) PRESENTATION OF EVIDENCE AT HEARINGS CONCERNING THE
NEEDS OF PRODUCERS WITH RESPECT TO PRICES FOR MILK AND DIFFERENTIALS TO
REFLECT HANDLING COSTS TO FURNISH AN ADEQUATE BASIS FOR CONSTRUCTIVE
AMENDMENTS TO THE ORDER, AND (2) ASSUMPTION OF RESPONSIBILITY FOR A
RESERVE OF MILK TO MEET THE IRREGULAR NEEDS OF DISTRIBUTORS WHICH IS
ESSENTIAL IN A MARKET WHICH PROVIDES MARKET-WIDE EQUALIZATION AMONG ALL
PRODUCERS OF THE TOTAL VALUE OF THE MILK  ...  .  FROM THESE
CONSIDERATIONS IT WAS CONCLUDED THAT PROVISION FOR PAYMENTS TO
COOPERATIVE ASSOCIATIONS IS CONSIDERED NECESSARY TO EQUITABLY APPORTION
THE TOTAL VALUE OF MILK AMONG PRODUCERS.  THE TESTIMONY IN SUPPORT OF
THE PROPOSAL TO COMPLETELY ELIMINATE THIS FEATURE OF THE ORDER DOES NOT
SHOW THAT THESE CONSIDERATIONS WERE SUBSTANTIALLY ERRONEOUS."  9 FED.
REG. 3057, 3059. 

IN 1947 STILL ANOTHER UNSUCCESSFUL ATTEMPT WAS MADE TO ELIMINATE
THESE PROVISIONS.  AT THIS PUBLIC HEARING THE SECRETARY EXPRESSLY
REAFFIRMED THE PRIOR CRUCIAL FINDINGS ON WHICH THE ORDER RESTS.  12
FED. REG. 4921, 4928.  IT IS THE PROVISIONS OF THIS 1947 ORDER NOW HELD
INVALID. 

THERE WAS AN ABUNDANCE OF EVIDENCE TO SUPPORT THE SECRETARY'S
FINDINGS THAT THE COOPERATIVES IN THE BOSTON AREA WERE EQUIPPED TO AND
DID CONSTANTLY PROVIDE SUBSTANTIAL SERVICES TO HELP SUSTAIN THE MARKET
PRICE OF MILK AND TO STABILIZE ITS DISTRIBUTION.  EVIDENCE SHOWED THAT
NEW ENGLAND COOPERATIVES MAINTAINED EXPENSIVE MANUFACTURING EQUIPMENT
TO TAKE CARE OF SURPLUS MILK; THAT MOST OF THE SURPLUS MILK WAS
CONCENTRATED IN COOPERATIVE PLANTS AND THAT EVEN PROPRIETARY HANDLERS
NORMALLY DEPENDED ON COOPERATIVES IN TIME OF SHORT PRODUCTION.  THERE
WAS TESTIMONY THAT ALL THESE ACTIVITIES IMPOSED HUGE FINANCIAL BURDENS
ON COOPERATIVE ASSOCIATIONS AND THAT UNLESS NON-MEMBERS WERE MADE TO
BEAR PART OF THESE LARGE COSTS, COOPERATING FARMERS, WHO SAVED THE
MARKET FROM THE CHAOS OF A FLUCTUATING MILK SUPPLY, WOULD ACTUALLY GET
LESS NET AMOUNT FOR THEIR MILK THAN DID THE NONMEMBERS WHO MERELY
REAPED THE HARVEST SOWN BY OTHERS. 

THE FOREGOING SUGGESTS BUT A VERY MINOR PART OF THE EVIDENCE ON WHICH
THE SECRETARY FOUND THAT THE COOPERATIVE PAYMENT PROVISIONS WERE
CONSISTENT WITH THE ACT'S TERMS AND NECESSARY TO EFFECTUATE THE ORDER'S
OTHER PROVISIONS DESIGNED TO MAINTAIN A SMOOTHLY FUNCTIONING MARKET. 
THE COURT OF APPEALS AGREED WITH THE SECRETARY AS TO THE VALUE OF
COOPERATIVE SERVICES.  87 U.S. APP. D.C. 388, 392, 399, 185 F.2D 871,
875, 882.  ITS OPINION NOT ONLY CONCEDED THAT "THERE WAS SUBSTANTIAL
EVIDENCE THAT THESE SERVICES WERE RENDERED" BUT EMPHATICALLY DECLARED
"THERE IS NO DOUBT THAT THESE SERVICES ARE PRONOUNCED AIDS TO ALL
PARTICIPANTS IN THE MARKETING AREA - PRODUCERS, HANDLERS AND
CONSUMERS."  IN FACT THE COURT OF APPEALS RATHER IMPATIENTLY REJECTED
THE "GRATUITY" THEORY OF THE PAYMENTS BY DECLARING THAT THE RECORD MADE
THE MARKET-WIDE AID OF COOPERATIVES "SO CLEAR THAT IT SERVES NO PURPOSE
TO DESCRIBE THE HELPFUL EFFECTS IN DETAIL."  THIS COURT NOW RESURRECTS
THIS REJECTED THEORY BY IMPLYING THAT THE COOPERATIVE PAYMENTS ARE MERE
GIFTS, THEREBY UPSETTING THE SECRETARY'S FINDINGS WHILE ASSERTING THAT
IT IS INDULGING IN PURE STATUTORY CONSTRUCTION.  (FN17)  THIS, OF
COURSE, IS THE SAFEST WAY TO UPSET FINDINGS SUPPORTED AS THESE ARE BY
SUBSTANTIAL EVIDENCE. 

SECOND.  THE MAJORITY SEEMS TO IMPLY THAT EVEN IF THE COOPERATIVES DO
RENDER VALUABLE MARKET-WIDE SERVICES THEY OUGHT NOT TO BE PAID.  THIS
IS BECAUSE THE COURT, READING THE ORDER WITH PUNCTILIOUS NICETY, FINDS
THAT IT LACKS WORDS EXPRESSLY COMPELLING COOPERATIVES TO RENDER THE
PRECISE SERVICES FOR WHICH THEY ARE PAID.  I FAIL TO SEE WHY
COOPERATIVES SHOULD NOT BE PAID FOR WORK THEY ACTUALLY DO, BUT IN ANY
EVENT I READ THE ORDER AS REQUIRING THAT THOSE SERVICES BE PERFORMED. 

THE PUBLIC HEARINGS HELD IN CONNECTION WITH THIS ORDER RESULTED IN
FINDINGS THAT COOPERATIVES SHOULD BE PAID FOR RENDERING TWO BROAD TYPES
OF MARKET SERVICES.  MOST IMPORTANTLY, THEY WERE TO BE PAID FOR THE
"ASSUMPTION OF RESPONSIBILITY FOR A RESERVE OF MILK TO MEET THE
IRREGULAR NEEDS OF DISTRIBUTORS."  9 FED. REG. 3059.  SECTION
904.10(B)(2) OF THE ORDER SPECIFIES THE AMOUNTS TO BE PAID COOPERATIVES
FOR MEETING THIS RESPONSIBILITY.  THIS SECTION BY ITS VERY TERMS
REQUIRES THAT BEFORE THEY GET THEIR PAY COOPERATIVES MUST MEET THEIR
RESPONSIBILITY BY RUNNING PLANTS WHICH SELL OR PROCESS MILK.  IT DOES
SO IN THE FOLLOWING LANGUAGE: "EACH QUALIFIED ASSOCIATION SHALL BE
ENTITLED TO PAYMENT AT THE RATE OF 2 CENTS PER HUNDREDWEIGHT ON MILK
RECEIVED FROM PRODUCERS AT A PLANT OPERATED BY THAT ASSOCIATION." 
NEITHER THE NEW YORK ORDER NOR ANY OTHER ORDER COULD POSSIBLY CONTAIN A
MORE COMPELLING REQUIREMENT FOR THE COOPERATIVES TO PERFORM THESE
MARKET SERVICES THAN DOES THIS ORDER - NAMELY, NO WORK, NO PAY. 
(FN18) 

FOR THEIR WORK IN BRINGING ABOUT BETTER MILK PRICES FOR ALL FARMERS. 
THIS IS THE SECOND BROAD TYPE OF SERVICE WHICH THE SECRETARY FOUND
COOPERATIVES SHOULD BE PAID FOR.  IN ORDER TO BE ENTITLED TO RECEIVE
ANY PAYMENT WHATSOEVER FOR THIS SERVICE, A COOPERATIVE MUST NOT ONLY
COMPLY WITH THE PROVISIONS OF THE CAPPER-VOLSTEAD ACT, BUT ALSO MUST
"COLLABORATES) WITH SIMILAR ASSOCIATIONS IN ACTIVITIES INCIDENT TO THE
MAINTENANCE AND STRENGTHENING OF COLLECTIVE BARGAINING BY PRODUCERS AND
THE OPERATION OF A PLAN OF UNIFORM PRICING OF MILK TO HANDLERS." 
(FN19)  IF A COOPERATIVE DOES THE THINGS REQUIRED BY THE CAPPER
VOLSTEAD ACT AND THE LAST-MENTIONED SECTION OF THE ORDER, IT IS BOUND
TO BE WORKING TO BRING ABOUT BETTER MILK PRICES FOR ALL DAIRY FARMERS
IN THE AREA. 

AFTER PUBLIC HEARING, THE ADMINISTRATOR OF THIS ACT HAS FOUND ON
THREE SEPARATE OCCASIONS THAT COOPERATIVES EXPENDED THEIR TIME AND
MONEY IN PERFORMING THESE MARKET-WIDE SERVICES.  I AM NOT SURE WHY THE
MAJORITY FORBIDS THE PAYMENTS.  I HOPE IT IS NOT ON THE THEORY THAT THE
SECRETARY'S SUPPOSED LACK OF LINGUISTIC SKILL MUST DEPRIVE COOPERATIVES
OF PAY FOR THE WORK THEY DID DURING THE PAST ELEVEN YEARS.  WHETHER
THIS IS THE THEORY, ONE CANNOT BE SURE. 

THIRD.  THE MAJORITY STATES THAT THERE IS SOMEWHAT OF AN
"INCONGRUITY" IN ALLOWING COOPERATIVES TO BE PAID FOR "VIGOROUSLY
PROSECUTING THEIR OWN INTERESTS," LEAVING THE INFERENCE THAT THERE IS
SOMETHING INHERENTLY EVIL AND ILLEGAL IN SUCH PAYMENTS.  I DO NOT SEE
WHY.  IT SEEMS MORE INCONGRUOUS AND WRONG TO ME TO LET NON-MEMBERS GET
SOMETHING FOR NOTHING AND AT THE SOLE EXPENSE OF THE COOPERATING
FARMERS.  THERE IS CERTAINLY NO CONFLICT OF INTEREST AMONG FARMERS IN
CONNECTION WITH THE OBTAINING OF A HIGHER PRICE FOR THE MILK OF ALL. 
THE PAYMENTS WERE MADE TO ACHIEVE THIS END.  FURTHERMORE, I DOUBT IF
THE MAJORITY WOULD WANT TO HOLD THAT CONGRESS IS BARRED FROM TAKING
ADVANTAGE OF THE BELIEF OF MANY THAT GOVERNMENT REGULATION CAN BE MOST
EFFECTIVE WHERE THE FULLEST POSSIBLE USE IS MADE OF THE AID AND HELPFUL
SERVICES OF THOSE WHO ARE BEING REGULATED.   I FIND IT IMPOSSIBLE TO
BELIEVE THAT CONGRESS INTENDED TO COMPEL THE SECRETARY TO HIRE MORE
REGULAR, ALL-TIME GOVERNMENT EMPLOYEES TO PERFORM, AND IN MANY
INSTANCES TO DUPLICATE, WORK THAT COULD BE BEST AND PERHAPS LEAST
IRRITATINGLY PERFORMED BY FARMER-OWNED AND FARMER-CONTROLLED
ASSOCIATIONS.  (FN20)  TO THE CONTRARY, THE CONTROLLING LAW EXPRESSLY
DIRECTS THE SECRETARY TO USE COOPERATIVES WHERE HE CAN.  (FN21)  THAT
IT IS EVIL FOR THE SECRETARY TO PAY COOPERATIVES FOR MARKET SERVICES
SEEMS AN UNDULY FASTIDIOUS CONCEPT.  (FN22) 

FINALLY, I DO NOT AGREE WITH THE MAJORITY THAT STATUTORY AUTHORITY
FOR THESE PAYMENTS IS LACKING.  THE ACT FIRST AUTHORIZES THE SECRETARY
TO TAKE CERTAIN SPECIFIED ACTIONS DESIGNED TO SET UP A WELL-FUNCTIONING
GOVERNMENT-CONTROLLED MILK-MARKET SYSTEM.  TO AVOID THE INEVITABLE
RIGIDITY OF ITS EXPRESSLY DEFINED AUTHORIZATIONS CONGRESS WENT FURTHER
AND AUTHORIZED THE SECRETARY TO PROVIDE FOR ADDITIONAL MARKET
MECHANISMS "INCIDENTAL TO, AND NOT INCONSISTENT WITH, THE TERMS AND
CONDITIONS SPECIFIED  ...  AND NECESSARY TO EFFECTUATE THE OTHER
PROVISIONS OF SUCH ORDER."  49 STAT. 750, 757, 7 U.S.C. SEC.
608C(7)(D).  THE KEY WORDS IN THIS SECTION, REFERRED TO BY THE COURT OF
APPEALS AS "THE MEASURING STANDARD," ARE "INCIDENTAL," "NOT
INCONSISTENT," AND "NECESSARY."  LARGELY RELYING ON THEIR SELCTIONS OF
ABSTRACT WORD DEFINITIONS, THE DISTRICT COURT AND THE COURT OF APPEALS
HELD THAT THE SECRETARY'S ORDER WAS FORBIDDEN BY EACH OF THESE KEY
WORDS.  THIS COURT CLEARLY AGREES THAT THE ORDER FOR PAYMENT IS NOT
"INCIDENTAL" AND IS "INCONSISTENT" WITH THE ACT'S TERMS.  HOWEVER, IT
METICULOUSLY AVOIDS ANY RELIANCE ON THE WORK "NECESSARY." 

A. NECESSARY.  - THE SECREATRY CONCLUDED THAT COOPERATIVE PAYMENTS
WERE "NECESSARY" TO EFFECTUATE THE OTHER TERMS OF HIS ORDER.  AN
OVERWHELMING MAJORITY OF THE FARMERS AFFECTED BY THE PAYMENT PROVISION
VOTED IN FAVOR OF THEM.  THE ADMINISTRATIVE HISTORY OF THE ACT SHOWS
THAT THE PAYMENTS HAVE MADE A SUBSTANTIAL CONTRIBUTION TO THE SMOOTH
OPERATION OF THE GOVERNMENT'S PROGRAM.  CONGRESS ITSELF HAS RATIFIED
THESE VERY PROVISIONS NOW IN ISSUE.  ALL OF THIS IS ENOUGH FOR ME; I
WOULD HOLD THAT THE PROVISIONS ARE "NECESSARY" WITHIN THE MEANING OF
THE ACT.    B. INCIDENTAL.  - THE MAJORITY HOLDS THAT THESE PAYMENTS
ARE NOT "INCIDENTAL" TO THE OTHER TERMS OF THE ORDER.  THIS HOLDING
SEEMS TO BE BASED ON THE IDEA THAT THE PAYMENT PROVISIONS ARE TOO
IMPORTANT TO BE MERELY "INCIDENTAL."  (FN23)  THIS IDEA IS IN MARKED
CONTRAST TO THE COURT'S PREVIOUS STATEMENT THAT "THE PAYMENTS TO
COOPERATIVES HAVE IN EACH YEAR CONSTITUTED NO MORE THAN A FRACTION OF
ONE PERCENT OF THE TOTAL VALUE OF MILK MARKETED IN THE AREA."  I DO NOT
DOUBT THAT THESE PAYMENTS ARE OF CONSIDERABLE IMPORTANCE IN CARRYING
OUT THE BASIC MARKET CONTROL SYSTEM SET UP BY THE ACT.  BUT I DENY THAT
THEY ARE SUCH INDEPENDENT ENDS IN THEMSELVES THAT THEY ARE SOMETHING
MORE THAN AN "INCIDENTAL" PART OF THE PROGRAM THEY WERE DESIGNED TO
SERVE.  CLEARLY THE PAYMENT PROVISIONS ARE AUXILIARY TO THE MAIN
PURPOSE OF THE ACT AND ITS MARKET SYSTEM.  CONSEQUENTLY, THE COURT
REFUSES TO GIVE THAT "CONSIDERABLE FLEXIBILITY" WHICH WE HAVE
PREVIOUSLY SAID THE SECRETARY SHOULD HAVE "TO INCLUDE PROVISIONS
AUXILIARY TO THOSE DEFINITELY SPECIFIED."  UNITED STATES V. ROCK ROYAL
CO-OP., SUPRA, AT 575, 576. 

C. INCONSISTENT.  - THE COURT'S HOLDING THAT THE COOPERATIVE PAYMENTS
ARE "INCONSISTENT" WITH THE ACT IS BASED ON THE NOTION THAT THE ORDER
DESTROYS UNIFORMITY OF PRICES RECEIVED BY COOPERATIVE MEMBERS AND NON
MEMBERS TO THE DETRIMENT OF NON-MEMBERS.  THE COURT'S HOLDING IN THIS
REGARD RESTS IN PART ON ITS UNSUPPORTED AND UNSUPPORTABLE FINDINGS THAT
"RECEIPTS OF NONMEMBERS RESULTING FROM DELIVERY OF A GIVEN QUANTITY OF
MILK ARE SMALLER THAN THOSE OF THE ASSOCIATIONS AND THEIR MEMBERS. 
THIS IS TRUE BECAUSE NONMEMBERS ARE PAID ONLY THE BLENDED PRICE WHILE
MEMBERS RECEIVE, THROUGH THEIR ASSOCIATIONS, THE DISPUTED PAYMENTS IN
ADDITION TO THE BLENDED PRICE."  THE CRUCIAL ERROR OF THESE ASSUMPTIONS
OR FINDINGS OF FACT, WHICHEVER THEY ARE, IS THE COURT'S ASSERTION THAT
COOPERATIVE SERVICE PAYMENTS "REDOUND TO MEMBERS INDIVIDUALLY."  THERE
IS NOT ONLY AN ABSENCE OF EVIDENCE TO SUPPORT THIS ASSERTION, BUT IT IS
CONTRARY TO THE KNOWN FACTS OF THE WAY COOPERATIVES WORK.  THE ONLY
POSSIBLE SUPPORT FOR SUCH AN EXTRAORDINARY INFERENCE IS BY A RENEWED
ADOPTION OF THE THEORY THAT THESE PAYMENTS ARE GRATUITIES, A THEORY THE
COURT OF APPEALS EMPHATICALLY REJECTED.  BUT THIS RECORD ACTUALLY SHOWS
THAT IT COSTS THE COOPERATIVES MORE TO PERFORM THE SERVICES THAN THEY
ARE PAID.  IT ALSO SHOWS THAT COOPERATIVES ARE COMPELLED TO DEDUCT THE
COMPLETE COST OF THESE SERVICES LONG BEFORE THE MEMBER FARMERS ARE PAID
FOR THIER MILK.  THE RESULT IS THAT BUT FOR THESE PAYMENTS THE
COOPERATIVE MEMBERS ARE BOUND TO GET LESS THAN THE BLENDED PRICE FOR
THEIR MILK WHILE NON-MEMBERS GET THE BLENDED PRICE.  THE VERY REASON
THE SECRETARY AUTHORIZED THESE PAYMENTS WAS TO INSURE SO FAR AS
POSSIBLE THAT NON-MEMBERS SHOULD NOT GET MORE FOR THEIR MILK THAN
COOPERATING FARMERS DO.  IT IS THEREFORE THE COURT'S ACTION TODAY, NOT
THE SECRETARY'S ORDER, THAT PREVENTS UNIFORMITY OF PRICE IN BOSTON
AREA. 

IN STRIKING DOWN THESE PROVISIONS OF THE SECRETARY'S ORDER, THE COURT
HAS DEPARTED FROM MANY PRINCIPLES IT HAS PREVIOUSLY ANNOUNCED IN
CONNECTION WITH ITS SUPERVISION OVER ADMINISTRATIVE AGENTS.  UNDER
THESE PRINCIPLES, THE COURT WOULD REFRAIN FROM SETTING ASIDE
ADMINISTRATIVE FINDINGS OF FACT WHEN SUPPORTED BY SUBSTANTIAL EVIDENCE;
(FN24) WE WOULD GIVE WEIGHT TO THE INTERPRETATION OF A STATUTE BY ITS
ADMINISTRATORS; (FN25) WHEN ADMINISTRATORS HAVE INTERPRETED BROAD
STATUTORY TERMS, SUCH AS HERE INVOLVED, WE WOULD RECOGNIZE THAT IT IS
OUT DUTY TO ACCEPT THIS INTERPRETATION EVEN THOUGH IT WAS NOT "THE ONLY
REASONABLE ONE" OR THE ONE "WE WOULD HAVE REACHED HAD THE QUESTION
ARISEN IN THE FIRST INSTANCE IN JUDICIAL PROCEEDINGS."  UNEMPLOYMENT
COMM'N V. ARAGON, 329 U.S. 143, 153.  ONLY A SHORT WHILE AGO IN A LABOR
BOARD CASE THIS COURT SAID:  "NOT ONLY ARE THE FINDINGS OF THE BOARD
CONCLUSIVE WITH RESPECT TO QUESTIONS OF FACT IN THIS FIELD WHEN
SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD AS A WHOLE, BUT THE
BOARD'S INTERPRETATION OF THE ACT AND THE BOARD'S APPLICATION OF IT IN
DOUBTFUL SITUATIONS ARE ENTITLED TO WEIGHT."  LABOR BOARD V. DENVER
BLDG. COUNCIL, 341 U.S. 675, 691, 692.  TRUE, THIS WAS SAID WITH
REFERENCE TO A LABOR BOARD CASE UNDER THE TAFT-HARTLEY ACT, BUT
FINDINGS AND INTERPRETATIONS OF THE SECRETARY OF AGRICULTURE SHOULD
STAND ON NO LOWER LEVEL. 

I DISSENT. 

FN1  IN ADDITION, ABOUT $400,000 HAS BEEN PAID INTO COURT UNDER AN
IMPOUNDING ORDER ENTERED BY THE DISTRICT COURT IN 1949. 

FN2  IN 1941 FARMERS IN THE BOSTON MILK AREA WERE GIVEN AN
OPPORTUNITY TO EXPRESS THEIR APPROVAL OR DISAPPROVAL OF THE ORDER. 
THEY VOTED AS FOLLOWS:

                                 FOR  AGAINST 

COOPERATING FARMERS               11,587         0 

NON-MEMBER FARMERS                   694        61 

TOTAL VOTE                        12,281        61 

FN3  "THE SECRETARY, IN THE ADMINISTRATION OF THIS TITLE, SHALL
ACCORD SUCH RECOGNITION AND ENCOURAGEMENT TO PRODUCER-OWNED AND
PRODUCER-CONTROLLED COOPERATIVE ASSOCIATIONS AS WILL BE IN HARMONY WITH
THE POLICY TOWARD COOPERATIVE ASSOCIATIONS SET FORTH IN EXISTING ACTS
OF CONGRESS, AND AS WILL TEND TO PROMOTE EFFICIENT METHODS OF MARKETING
AND DISTRIBUTION."  49 STAT. 750, 767. 

FN4  THE MAJORITY APPARENTLY DESIRES TO LEAVE AN INFERENCE THAT SOME
OF THE OTHER ORDERS MIGHT SURVIVE LEGAL CHALLENGES.  I CANNOT BELIEVE
THAT THE MAJORITY IS TODAY SUSTAINING THESE OTHER ORDERS NOT NOW HERE
AGAINST ATTACKS ON GROUNDS NOT YET ARGUED.  IN EACH MARKET AREA THE
SERVICES FOR WHICH COOPERATIVES ARE PAID ARE OF THE SAME NATURE.  ANY
DIFFERENCE IN LANGUAGE USED BY THE SECRETARY IN FORUMLATING THE ORDERS
IS OF NO REAL SIGNIFICANCE, AND I DO NOT BELIEVE ANY CRUCIAL
DISTINCTIONS COULD POSSIBLY BE DRAWN BETWEEN THE VARIOUS ORDERS EXCEPT
BY ARBITRARY FIAT. 

FN5  42 STAT. 388, 7 U.S.C. SEC. 291.  THIS ACT GAVE SPECIAL
CONSIDERATION AND EXEMPTIONS TO COOPERATIVE ASSOCIATIONS OF FARMERS. 

FN6  46 STAT. 11, 12 U.S.C. SEC. 1141.  A DECLARED POLICY OF THIS ACT
WAS TO ENCOURAGE THE ORGANIZATION AND OPERATION OF FARMER COOPERATIVE
ASSOCIATIONS.  THE ACT ALSO PROVIDED FOR MAKING LOANS TO COOPERATIVES,
TO AID THEM IN TAKING CARE OF THE SURPLUS CROPS, AND TO ASSIST THE
COOPERATIVES IN EDUCATING THE PRODUCERS OF FARM PRODUCTS IN THE
ADVANTAGES OF COOPERATIVE MARKETING. 

FN7  SEE NEBBIA V. NEW YORK, 291 U.S. 502. 

FN8  SEE H.R. DOC. NO. 451, 74TH CONG., 2D SESS. 47-48. 

FN9  SEE, E.G., TWIN CITY (ST. PAUL AND MINNEAPOLIS) AREA MILK
LICENSE NO. 5, EX. A, ARTS. II AND III, ISSUED AUGUST 29, 1933 AND
TERMINATED FEBRUARY 16, 1934; AND LICENSE NO. 32, EX. A, SEC. II,
ISSUED FEBRUARY 12, 1934 AND TERMINATED APRIL 18, 1944. 

FN10  SEE, E.G., BALTIMORE PRODUCTION AREA MILK LICENSE NO. 6, ART.
III, SEC. 5, ISSUED SEPTEMBER 25, 1933.  DETROIT MILK SHED MILK LICENSE
NO. 4, ART. III, SEC. 4, ISSUED AUGUST 23, 1933.  EVANSVILLE, INDIANA,
MILK SHED LICENSE NO. 12, ART. III, SEC. 4, ISSUED OCTOBER 19, 1933. 
PHILADELPHIA MILK SHED LICENSE NO. 3, ART. III, APP. I, SEC. 4, ISSUED
AUGUST 21, 1933. 

FN11  H.R. REP. NO. 1241.  74TH CONG., 1ST SESS. 9. 

FN12  SUPRA, P. 13. 

FN13  H.R. REP. NO. 468, 75TH CONG., 1ST SESS. 2. 

FN14  "ANY PROGRAM IN EFFECT UNDER THE AGRICULTURAL ADJUSTMENT ACT,
AS REENACTED AND AMENDED BY THIS ACT, ON THE EFFECTIVE DATE OF SECTION
302 OF THE AGRICULTURAL ACT OF 1948 SHALL CONTINUE IN EFFECT WITHOUT
THE NECESSITY FOR ANY AMENDATORY ACTION RELATIVE TO SUCH PROGRAM, BUT
ANY SUCH PROGRAM SHALL BE CONTINUED IN OPERATION BY THE SECRETARY OF
AGRICULTURE ONLY TO ESTABLISH AND MAINTAIN SUCH ORDERLY MARKETING
CONDITIONS AS WILL TEND TO EFFECTUATE THE DECLARED PURPOSE SET OUT IN
AND AMENDED BY THIS ACT."  ACT OF JULY 3, 1948, 62 STAT. 1247, 1258, 7
U.S.C. (SUPP. IV) SEC. 672(B). 

FN15  THIS APPEARS TO HAVE BEEN THE VIEW OF THE DISTRICT COURT.  82
F. SUPP. 614. 

FN16  PUBLIC HEARINGS WERE HELD IN 1940, 1941, 1942, 1943 AND 1947. 
THE 1940 AND 1941 HEARING RECORDS ARE BEFORE US AS AN EXHIBIT.  THE
OTHER HEARING RECORDS ARE AVAILABLE; ALL THE FINDINGS RESULTING FROM
ALL THESE HEARINGS HAVE BEEN PUBLISHED IN THE FEDERAL REGISTER AS THE
LAW REQUIRES.  AND IF THE EVIDENCE BEFORE THE SECRETARY WERE NOT
AVAILABLE, HIS FINDINGS WOULD CARRY A PRESUMPTION OF A STATE OF FACTS
JUSTIFYING HIS ACTION.  UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S.
533, 567-568. 

FN17  THE MAJORITY DISCLAIMS ANY CHALLENGE TO THE ADEQUACY OF THE
EVIDENCE TO SUPPORT THE SECRETARY'S FINDINGS.  IN THE SUCCEEDING
PARAGRAPH THE MAJORITY RESORTS TO AFFIDAVITS FILED IN THE TRIAL COURT
IN AN ATTEMPT TO SHOW THAT THE PURPOSE OF THESE PAYMENT PROVISIONS WAS
TO SUBSIDIZE INEFFICIENT AND OVERCAPITALIZED COOPERATIVE PLANTS.  THE
SECRETARY HAD FOUND THE PAYMENTS WERE BONA FIDE COMPENSATION FOR WORK
PERFORMED.  THUS THE SECRETARY FOUND ONE FACT; THE COURT RELIES ON A
COURT AFFIDAVIT TO FIND A CONTRARY FACT.  I THINK THE AFFIDAVIT DOES
NOT SUPPORT THIS COURT'S FINDING.  MOREOVER, THE ADMINISTRATIVE
FINDINGS SHOULD BE TESTED BY EVIDENCE THE ADMINISTRATOR HEARD, NOT BY
DE NOVO PROCEEDINGS IN A REVIEWING COURT. 

FN18  SEE N. 4, SUPRA. 

FN19  7 CFR, 1947 SUPP., SEC. 904.10(A)(1)(7). 

FN20  HOWEVER, THE CONTRARY VIEW OF THE COURT OF APPEALS APPEARS TO
HAVE BEEN A BASIS FOR ITS INVALIDATION OF THE ORDER FOR IT SAID: 

"IT IS ARGUED THAT IT WOULD TAKE A DECIDED INCREASE IN THE PRESENT
STAFF OF THE ADMINISTRATOR TO PROVIDE THESE SERVICES AND THAT SUCH
INCREASE WOULD BE EXPENSIVE.  THIS IS NO ANSWER.  THE ACT MAKES IT THE
DUTY OF THE ADMINISTRATOR TO DO THIS.  HE CANNOT FARM OUT THESE DUTIES
TO ONE CLASS OF PRODUCERS AT THE EXPENSE OF ANOTHER CLASS, FOR THIS
WOULD VIOLATE THE EFFECT OF UNIFORMITY OF PRICE REQUIRED IN SUBSECTIONS
608C (5)(B)(I) AND (II) AND BE 'INCONSISTENT' THEREWITH."  185 F.2D
871, 881. 

FN21  SEE N. 3, SUPRA. 

FN22  I HAVE NOT DISCUSSED ABOVE A FOURTH GROUND UPON WHICH THE COURT
MAY POSSIBLY RELY FOR ITS HOLDING.  THERE SEEMS TO BE A CERTAIN FLAVOR
IN THE MAJORITY OPINION TO THE EFFECT THAT COOPERATIVES SHOULD NOT BE
PAID FOR MAINTAINING SURPLUS MILK RESERVES SINCE CORRESPONDING PAYMENTS
ARE NOT MADE TO PROPRIETARY MILK HANDLERS.  HOWEVER, THIS MUST BE MERE
COLORATION, FOR THE RECORD SHOWS, BY THE TESTIMONY OF THE PROPRIETARY
INTERESTS THEMSELVES, THAT THEY WILL NOT WORK TO DISPOSE OF SURPLUS
MILK AT THE HIGH PRICE WHICH ONLY FLUID MILK BRINGS BECAUSE THEY ARE
UNWILLING TO DEAL WITH THEIR COMPETITORS.  IF THE PROPRIETARY INTERESTS
SHOULD DECIDE TO COOPERATE WITH THEIR COMPETITORS IN THE FUTURE SO THAT
ALL FARMERS CAN RECEIVE HIGHER PRICES FOR THEIR MILK, THE SECRETARY AND
THE FARMERS WILL NO DOUBT BE GLAD TO PAY THEM FOR DOING SO.  AT ANY
RATE, I DO NOT BELIEVE THE MAJORITY IS PROCEEDING ON THE ASSUMPTION
THAT BECAUSE ONE GROUP HAS BEEN WRONGED, THE COURT MUST INSURE THAT ALL
OTHER GROUPS MUST BE SIMILARLY WRONGED. 

FN23  THE MAJORITY ALSO STATES THAT THESE PAYMENTS CANNOT BE
"INCIDENTAL" BECAUSE THEY ARE "INCONSISTENT" WITH OTHER PROVISIONS OF
THE ACT.  MAYBE THESE TWO WORDS ARE SYNONYMS, BUT I HAD NOT THOUGHT SO.
AT ANY RATE I SHALL LATER STATE REASONS WHY THESE PAYMENTS ARE WHOLLY
CONSISTENT WITH THE ACT AND THE MARKET PROGRAM SET UP UNDER IT. 

FN24  SEE UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474. 

FN25  GRAY V. POWELL, 314 U.S. 402. 
..END :




















ADLER V. BOARD OF EDUCATION OF THE CITY OF NEW YORK 342 U.S. 485 


NO. 8.  ARGUED JANUARY 3, 1952.  - DECIDED MARCH 3, 1952.  - 301 N.Y.
476, 95 N.E.2D 806, AFFIRMED. 


THE CIVIL SERVICE LAW OF NEW YORK, SEC. 12-A, MAKES INELIGIBLE FOR
EMPLOYMENT IN ANY PUBLIC SCHOOL ANY MEMBER OF ANY ORGANIZATION
ADVOCATING THE OVERTHROW OF THE GOVERNMENT BY FORCE, VIOLENCE OR ANY
UNLAWFUL MEANS.  SECTION 3022 OF THE EDUCATION LAW, ADDED BY THE
FEINBERG LAW, REQUIRES THE BOARD OF REGENTS (1) TO ADOPT AND ENFORCE
RULES FOR THE REMOVAL OF ANY EMPLOYEE WHO VIOLATES, OR IS INELIGIBLE
UNDER, SEC. 12-A, (2) TO PROMULGATE A LIST OF ORGANIZATIONS DESCRIBED
IN SEC. 12-A, AND (3) TO PROVIDE IN ITS RULES THAT MEMBERSHIP IS ANY
ORGANIZATION SO LISTED IS PRIMA FACIE EVIDENCE OF DISQUALIFICATION FOR
EMPLOYMENT IN THE PUBLIC SCHOOLS.  NO ORGANIZATION MAY BE SO LISTED,
AND NO PERSON SEVERED FROM OR DENIED EMPLOYMENT, EXCEPT AFTER A HEARING
AND SUBJECT TO JUDICIAL REVIEW.  HELD:  THIS COURT FINDS NO
CONSTITUTIONAL INFIRMITY IN SEC. 12-A OF THE CIVIL SERVICE LAW OF NEW
YORK OR IN SEC. 3022 OF THE EDUCATION LAW.  PP. 486-496. 

1.  SECTION 3022 AND THE RULES PROMULGATED THEREUNDER DO NOT
CONSTITUTE AN ABRIDGEMENT OF THE FREEDOM OF SPEECH AND ASSEMBLY OF
PERSONS EMPLOYED OR SEEKING EMPLOYMENT IN THE PUBLIC SCHOOLS OF NEW
YORK.  GARNER V. LOS ANGELES BOARD, 341 U.S. 716.  PP. 491-493. 

2.  THE PROVISION OF SEC. 3022 DIRECTING THE BOARD OF REGENTS TO
PROVIDE IN RULES THEREUNDER THAT MEMBERSHIP IN ANY ORGANIZATION SO
LISTED BY THE BOARD SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF
DISQUALIFICATION FOR EMPLOYMENT IN THE PUBLIC SCHOOLS DOES NOT DENY
MEMBERS OF SUCH ORGANIZATIONS DUE PROCESS OF LAW.  PP. 494-496. 

3.  THE USE OF THE WORK "SUBVERSIVE" IN SEC. 1 OF THE FEINBERG LAW,
WHICH IS A PREAMBLE AND NOT A DEFINITIVE PART OF THE ACT, DOES NOT
RENDER THE STATUTE VOID FOR VAGUENESS UNDER THE DUE PROCESS CLAUSE, IN
VIEW OF THE FACT THAT IN SUBDIVISION 2 OF SEC. 3022 IT IS GIVEN A VERY
DEFINITE MEANING - I.E., AN ORGANIZATION THAT ADVOCATES THE OVERTHROW
OF GOVERNMENT BY FORCE OR VIOLENCE.  P. 496. 

4.  THE CONSTITUTIONALITY OF SEC. 3021 OF THE EDUCATION LAW NOT
HAVING BEEN QUESTIONED IN THE PROCEEDINGS IN THE LOWER COURTS AND BEING
RAISED HERE FOR THE FIRST TIME, IT WILL NOT BE PASSED UPON BY THIS
COURT BEFORE THE STATE COURTS HAVE HAD AN OPPORTUNITY TO PASS UPON IT.
P. 496. 

ADLER ET AL. V. BOARD OF EDUCATION OF THE CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

IN A DECLARATORY JUDGMENT ACTION, THE SUPREME COURT OF NEW YORK,
KINGS COUNTY, HELD THAT SUBDIVISION (C) OF SEC. 12-A OF THE NEW YORK
CIVIL SERVICE LAW, SEC. 3022 OF THE NEW YORK EDUCATION LAW, AND THE
RULES OF THE STATE BOARD OF REGENTS PROMULGATED THEREUNDER VIOLATED THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND ENJOINED ACTION
THEREUNDER BY THE BOARD OF EDUCATION OF NEW YORK CITY.  196 MISC. 873,
95 N.Y.S.2D 114.  THE APPELLATE DIVISION REVERSED.  276 APP. DIV. 527,
96 N.Y.S.2D 466.  THE COURT OF APPEALS OF NEW YORK AFFIRMED THE
DECISION OF THE APPELLATE DIVISION.  301 N.Y. 476, 95 N.E.2D 806.  ON
APPEAL TO THIS COURT, AFFIRMED, P. 496. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

APPELLANTS BROUGHT A DECLARATORY JUDGMENT ACTION IN THE SUPREME COURT
OF NEW YORK, KINGS COUNTY, PRAYING THAT SEC. 12-A OF THE CIVIL SERVICE
LAW, (FN1) AS IMPLEMENTED BY THE SO-CALLED FEINBERG LAW, (FN2) BE
DECLARED UNCONSTITUTIONAL, AND THAT ACTION BY THE BOARD OF EDUCATION OF
THE CITY OF NEW YORK THEREUNDER BE ENJOINED.  ON MOTION FOR JUDGMENT ON
THE PLEADINGS, THE COURT HELD THAT SUBDIVISION (C) OF SEC. 12-A, THE
FEINBERG LAW, AND THE RULES OF THE STATE BOARD OF REGENTS PROMULGATED
THEREUNDER VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
AND ISSUED AN INJUNCTION.  196 MISC. 873, 95 N.Y.S.2D 114.  THE
APPELLATE DIVISION OF THE SUPREME COURT REVERSED, 276 APP. DIV. 527, 96
N.Y.S.2D 466, AND THE COURT OF APPEALS AFFIRMED THE JUDGMENT OF THE
APPELLATE DIVISION, 301 N.Y. 476, 95 N.E.2D 806.  THE APPELLANTS COME
HERE BY APPEAL UNDER 28 U.S.C. SEC. 1257. 

12-A, IS SET FORTH IN THE MARGIN.  (FN3)  TO IMPLEMENT THIS LAW, THE
FEINBERG LAW WAS PASSED, ADDING A NEW SECTION, SEC. 3022, TO THE
EDUCATION LAW OF THE STATE OF NEW YORK, WHICH SECTION SO FAR AS HERE
PERTINENT IS SET FORTH IN THE MARGIN.  (FN4)  THE FEINBERG LAW WAS ALSO
TO IMPLEMENT SEC. 3021 OF THE EDUCATION LAW OF NEW YORK.  (FN5)  THE
CONSTITUTIONALITY OF THIS SECTION WAS NOT ATTACKED IN THE PROCEEDINGS
BELOW. 

THE PREAMBLE OF THE FEINBERG LAW, SEC. 1, MAKES ELABORATE FINDINGS
THAT MEMBERS OF SUBVERSIVE GROUPS, PARTICULARLY OF THE COMMUNIST PARTY
AND ITS AFFILIATED ORGANIZATIONS, HAVE BEEN INFILTRATING INTO PUBLIC
EMPLOYMENT IN THE PUBLIC SCHOOLS OF THE STATE;THAT THIS HAS OCCURRED
AND CONTINUES NOTWITHSTANDING THE EXISTENCE OF PROTECTIVE STATUTES
DESIGNED TO PREVENT THE APPOINTMENT TO OR RETENTION IN EMPLOYMENT IN
PUBLIC OFFICE, AND PARTICULARLY IN THE PUBLIC SCHOOLS, OF MEMBERS OF
ANY ORGANIZATIONS WHICH TEACH OR ADVOCATE THAT THE GOVERNMENT OF THE
UNITED STATES OR OF ANY STATE OR POLITICAL SUBDIVISION THEREOF SHALL BE
OVERTHROWN BY FORCE OR VIOLENCE OR BY ANY OTHER UNLAWFUL MEANS.  AS A
RESULT, PROPAGANDA CAN BE DISSEMINATED AMONG THE CHILDREN BY THOSE WHO
TEACH THEM AND TO WHOM THEY LOOK FOR GUIDANCE, AUTHORITY, AND
LEADERSHIP.  THE LEGISLATURE FURTHER FOUND THAT THE MEMBERS OF SUCH
GROUPS USE THEIR POSITIONS TO ADVOCATE AND TEACH THEIR DOCTRINES, AND
ARE FREQUENTLY BOUND BY OATH, AGREEMENT, PLEDGE, OR UNDERSTANDING TO
FOLLOW, ADVOCATE AND TEACH A PRESCRIBED PARTY LINE OR GROUP DOGMA OR
DOCTRINE WITHOUT REGARD TO TRUTH OR FREE INQUIRY.  THIS PROPAGANDA, THE
LEGISLATURE DECLARED, IS SUFFICIENTLY SUBTLE TO ESCAPE DETECTION IN THE
CLASSROOM; THUS, THE MENACE OF SUCH INFILTRATION INTO THE CLASSROOM IS
DIFFICULT TO MEASURE.  FINALLY, TO PROTECT THE CHILDREN FROM SUCH
INFLUENCE, IT WAS THOUGHT ESSENTIAL THAT THE LAWS PROHIBITING MEMBERS
OF SUCH GROUPS, SUCH AS THE COMMUNIST PARTY OR ITS AFFILIATED
ORGANIZATIONS, FROM OBTAINING OR RETAINING EMPLOYMENT IN THE PUBLIC
SCHOOLS BE RIGOROUSLY ENFORCED.  IT IS THE PURPOSE OF THE FEINBERG LAW
TO PROVIDE FOR THE DISQUALIFICATION AND REMOVAL OF SUPERINTENDENTS OF
SCHOOLS, TEACHERS, AND EMPLOYEES IN THE PUBLIC SCHOOLS IN ANY CITY OR
SCHOOL DISTRICT OF THE STATE WHO ADVOCATE THE OVERTHROW OF THE
GOVERNMENT BY UNLAWFUL MEANS OR WHO ARE MEMBERS OF ORGANIZATIONS WHICH
HAVE A LIKE PURPOSE. 

PROVIDES THAT THE BOARD OF REGENTS, WHICH HAS CHARGE OF THE PUBLIC
SCHOOL SYSTEM IN THE STATE OF NEW YORK, SHALL, AFTER FULL NOTICE AND
HEARING, MAKE A LISTING OF ORGANIZATIONS WHICH IT FINDS ADVOCATE,
ADVISE, TEACH, OR EMBRACE THE DOCTRINE THAT THE GOVERNMENT SHOULD BE
OVERTHROWN BY FORCE OR VIOLENCE OR ANY OTHER UNLAWFUL MEANS, AND THAT
SUCH LISTING MAY BE AMENDED AND REVISED FROM TIME TO TIME. 

IT WILL BE OBSERVED THAT THE LISTINGS ARE MADE ONLY AFTER FULL NOTICE
AND HEARING.  IN ADDITION, THE COURT OF APPEALS CONSTRUED THE STATUTE
IN CONJUNCTION WITH ARTICLE 78 OF THE NEW YORK CIVIL PRACTICE ACT,
GILBERT-BLISS' N.Y. CIV. PRAC., VOL. 6B, SO AS TO PROVIDE LISTED
ORGANIZATIONS A RIGHT OF REVIEW. 

THE BOARD OF REGENTS IS FURTHER AUTHORIZED TO PROVIDE IN RULES AND
REGULATIONS, AND HAS SO PROVIDED, THAT MEMBERSHIP IN ANY LISTED
ORGANIZATION, AFTER NOTICE AND HEARING, "SHALL CONSTITUTE PRIMA FACIE
EVIDENCE FOR DISQUALIFICATION FOR APPOINTMENT TO OR RETENTION IN ANY
OFFICE OR POSITION IN THE SCHOOL SYSTEM"; (FN6) BUT BEFORE ONE WHO IS
AN EMPLOYEE OR SEEKS EMPLOYMENT IS SEVERED FROM OR DENIED EMPLOYMENT,
HE LIKEWISE MUST BE GIVEN A FULL HEARING WITH THE PRIVILEGE OF BEING
REPRESENTED BY COUNSEL AND THE RIGHT TO JUDICIAL REVIEW.  (FN7)  IT IS
SEC. 12-A OF THE CIVIL SERVICE LAW, AS IMPLEMENTED BY THE FEINBERG LAW
AS ABOVE INDICATED, THAT IS UNDER ATTACK HERE. 

IT IS FIRST ARGUED THAT THE FEINBERG LAW AND THE RULES PROMULGATED
THEREUNDER CONSTITUTE AN ABRIDGMENT OF THE FREEDOM OF SPEECH AND
ASSEMBLY OF PERSONS EMPLOYED OR SEEKING EMPLOYMENT IN THE PUBLIC
SCHOOLS OF THE STATE OF NEW YORK. 

IT IS CLEAR THAT SUCH PERSONS HAVE THE RIGHT UNDER OUR LAW TO
ASSEMBLE, SPEAK, THINK AND BELIEVE AS THEY WILL.  COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382.  IT IS EQUALLY CLEAR THAT THEY HAVE NO RIGHT TO
WORK FOR THE STATE IN THE SCHOOL SYSTEM ON THEIR OWN TERMS.  UNITED
PUBLIC WORKERS V. MITCHELL, 330 U.S. 75.  THEY MAY WORK FOR THE SCHOOL
SYSTEM UPON THE REASONABLE TERMS LAID DOWN BY THE PROPER AUTHORITIES OF
NEW YORK.  IF THEY DO NOT CHOOSE TO WORK ON SUCH TERMS, THEY ARE AT
LIBERTY TO RETAIN THEIR BELIEFS AND ASSOCIATIONS AND GO ELSEWHERE.  HAS
THE STATE THUS DEPRIVED THEM OF ANY RIGHT TO FREE SPEECH OR ASSEMBLY? 
WE THINK NOT.  SUCH PERSONS ARE OR MAY BE DENIED, UNDER THE STATUTES IN
QUESTION, THE PRIVILEGE OF WORKING FOR THE SCHOOL SYSTEM OF THE STATE
OF NEW YORK BECAUSE, FIRST, OF THEIR ADVOCACY OF THE OVERTHROW OF THE
GOVERNMENT BY FORCE OR VIOLENCE, OR, SECONDLY, BY UNEXPLAINED
MEMBERSHIP IN AN ORGANIZATION FOUND BY THE SCHOOL AUTHORITIES, AFTER
NOTICE AND HEARING, TO TEACH AND ADVOCATE THE OVERTHROW OF THE
GOVERNMENT BY FORCE OR VIOLENCE, AND KNOWN BY SUCH PERSONS TO HAVE SUCH
PURPOSE. 

THE CONSTITUTIONALITY OF THE FIRST PROPOSITION IS NOT QUESTIONED
HERE.  GITLOW V. NEW YORK, 268 U.S. 652, 667-672, CONSTRUING SEC. 161
OF THE NEW YORK PENAL LAW. 

AS TO THE SECOND, IT IS RATHER SUBTLY SUGGESTED THAT WE SHOULD NOT
FOLLOW OUR RECENT DECISION IN GARNER V. LOS ANGELES BOARD, 341 U.S.
716.  WE THERE SAID: 

"WE THINK THAT A MUNICIPAL EMPLOYER IS NOT DISABLED BECAUSE IT IS AN
AGENCY OF THE STATE FROM INQUIRING OF ITS EMPLOYEES AS TO MATTERS THAT
MAY PROVE RELEVANT TO THEIR FITNESS AND SUITABILITY FOR THE PUBLIC
SERVICE.  PAST CONDUCT MAY WELL RELATE TO PRESENT FITNESS; PAST LOYALTY
MAY HAVE A REASONABLE RELATIONSHIP TO PRESENT AND FUTURE TRUST.  BOTH
ARE COMMONLY INQUIRED INTO IN DETERMINING FITNESS FOR BOTH HIGH AND LOW
POSITIONS IN PRIVATE INDUSTRY AND ARE NOT LESS RELEVANT IN PUBLIC
EMPLOYMENT."  341 U.S., AT P. 720. 

WE ADHERE TO THAT CASE.  A TEACHER WORKS IN A SENSITIVE AREA IN A
SCHOOLROOM.  THERE HE SHAPES THE ATTITUDE OF YOUNG MINDS TOWARDS THE
SOCIETY IN WHICH THEY LIVE.  IN THIS, THE STATE HAS A VITAL CONCERN. 
IT MUST PRESERVE THE INTEGRITY OF THE SCHOOLS.  THAT THE SCHOOL
AUTHORITIES HAVE THE RIGHT AND THE DUTY TO SCREEN THE OFFICIALS,
TEACHERS, AND EMPLOYEES AS TO THEIR FITNESS TO MAINTAIN THE INTEGRITY
OF THE SCHOOLS AS A PART OF ORDERED SOCIETY, CANNOT BE DOUBTED.  ONE'S
ASSOCIATES, PAST AND PRESENT, AS WELL AS ONE'S CONDUCT, MAY PROPERLY BE
CONSIDERED IN DETERMINING FITNESS AND LOYALTY.  FROM TIME IMMEMORIAL,
ONE'S REPUTATION HAS BEEN DETERMINED IN PART BY THE COMPANY HE KEEPS. 
IN THE EMPLOYMENT OF OFFICIALS AND TEACHERS OF THE SCHOOL SYSTEM, THE
STATE MAY VERY PROPERLY INQUIRE INTO THE COMPANY THEY KEEP, AND WE KNOW
OF NO RULE, CONSTITUTIONAL OR OTHERWISE, THAT PREVENTS THE STATE, WHEN
DETERMINING THE FITNESS AND LOYALTY OF SUCH PERSONS, FROM CONSIDERING
THE ORGANIZATIONS AND PERSONS WITH WHOM THEY ASSOCIATE. 

IF, UNDER THE PROCEDURE SET UP IN THE NEW YORK LAW, A PERSON IS FOUND
TO BE UNFIT AND IS DISQUALIFIED FROM EMPLOYMENT IN THE PUBLIC SCHOOL
SYSTEM BECAUSE OF MEMBERSHIP IN A LISTED ORGANIZATION, HE IS NOT
THEREBY DENIED THE RIGHT OF FREE SPEECH AND ASSEMBLY.  HIS FREEDOM OF
CHOICE BETWEEN MEMBERSHIP IN THE ORGANIZATION AND EMPLOYMENT IN THE
SCHOOL SYSTEM MIGHT BE LIMITED, BUT NOT HIS FREEDOM OF SPEECH OR
ASSEMBLY, EXCEPT IN THE REMOTE SENSE THAT LIMITATION IS INHERENT IN
EVERY CHOICE.  CERTAINLY SUCH LIMITATION IS NOT ONE THE STATE MAY NOT
MAKE IN THE EXERCISE OF ITS POLICE POWER TO PROTECT THE SCHOOLS FROM
POLLUTION AND THEREBY TO DEFEND ITS OWN EXISTENCE. 

IT IS NEXT ARGUED BY APPELLANTS THAT THE PROVISION IN SEC. 3022
DIRECTING THE BOARD OF REGENTS TO PROVIDE IN RULES AND REGULATIONS THAT
MEMBERSHIP IN ANY ORGANIZATION LISTED BY THE BOARD AFTER NOTICE AND
HEARING, WITH PROVISION FOR REVIEW IN ACCORDANCE WITH THE STATUTE,
SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF DISQUALIFICATION, DENIES DUE
PROCESS, BECAUSE THE FACT FOUND BEARS NO RELATION TO THE FACT
PRESUMED.  IN OTHER WORDS, FROM THE FACT FOUND THAT THE ORGANIZATION
WAS ONE THAT ADVOCATED THE OVERTHROW OF GOVERNMENT BY UNLAWFUL MEANS
AND THAT THE PERSON EMPLOYED OR TO BE EMPLOYED WAS A MEMBER OF THE
ORGANIZATION AND KNEW OF ITS PURPOSE, (FN8) TO PRESUME THAT SUCH MEMBER
IS DISQUALIFIED FOR EMPLOYMENT IS SO UNREASONABLE AS TO BE A DENIAL OF
DUE PROCESS OF LAW.  WE DO NOT AGREE. 

"THE LAW OF EVIDENCE IS FULL OF PRESUMPTIONS EITHER OF FACT OR LAW. 
THE FORMER ARE, OF COURSE, DISPUTABLE, AND THE STRENGTH OF ANY
INFERENCE OF ONE FACT FROM PROOF OF ANOTHER DEPENDS UPON THE GENERALITY
OF THE EXPERIENCE UPON WHICH IT IS FOUNDED  ...  . 

"LEGISLATION PROVIDING THAT PROOF OF ONE FACT SHALL CONSTITUTE PRIMA
FACIE EVIDENCE OF THE MAIN FACT IN ISSUE IS BUT TO ENACT A RULE OF
EVIDENCE, AND QUITE WITHIN THE GENERAL POWER OF GOVERNMENT.  STATUTES,
NATIONAL AND STATE, DEALING WITH SUCH METHODS OF PROOF IN BOTH CIVIL
AND CRIMINAL CASES ABOUND, AND THE DECISIONS UPHOLDING THEM ARE
NUMEROUS."  MOBILE, J. & K.C.R. CO. V. TURNIPSEED, 219 U.S. 35, AT P.
42. 

MEMBERSHIP IN A LISTED ORGANIZATION FOUND TO BE WITHIN THE STATUTE
AND KNOWN BY THE MEMBER TO BE WITHIN THE STATUTE IS A LEGISLATIVE
FINDING THAT THE MEMBER BY HIS MEMBERSHIP SUPPORTS THE THING THE
ORGANIZATION STANDS FOR, NAMELY, THE OVERTHROW OF GOVERNMENT BY
UNLAWFUL MEANS.  WE CANNOT SAY THAT SUCH A FINDING IS CONTRARY TO FACT
OR THAT "GENERALITY OF EXPERIENCE" POINTS TO A DIFFERENT CONCLUSION. 
DISQUALIFICATION FOLLOWS THEREFORE AS A REASONABLE PRESUMPTION FROM
SUCH MEMBERSHIP AND SUPPORT.  NOR IS THERE HERE A PROBLEM OF PROCEDURAL
DUE PROCESS.  THE PRESUMPTION IS NOT CONCLUSIVE BUT ARISES ONLY IN A
HEARING WHERE THE PERSON AGAINST WHOM IT MAY ARISE HAS FULL OPPORTUNITY
TO REBUT IT.  THE HOLDING OF THE COURT OF APPEALS BELOW IS SIGNIFICANT
IN THIS REGARD: 

"THE STATUTE ALSO MAKES IT CLEAR THAT  ...  PROOF OF SUCH MEMBERSHIP
'SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF DISQUALIFICATION' FOR SUCH
EMPLOYMENT.  BUT, AS WAS SAID IN POTTS V. PARDEE (220 N.Y. 431, 433):
'THE PRESUMPTION GROWING OUT OF A PRIMA FACIE CASE  ...  REMAINS ONLY
SO LONG AS THERE IS NO SUBSTANTIAL EVIDENCE TO THE CONTRARY.  WHEN THAT
IS OFFERED THE PRESUMPTION DISAPPEARS, AND UNLESS MET BY FURTHER PROOF
THERE IS NOTHING TO JUSTIFY A FINDING BASED SOLELY UPON IT.'  THUS THE
PHRASE 'PRIMA FACIE EVIDENCE OF DISQUALIFICATION,' AS USED IN THE
STATUTE, IMPORTS A HEARING AT WHICH ONE WHO SEEKS APPOINTMENT TO OR
RETENTION IN A PUBLIC SCHOOL POSITION SHALL BE AFFORDED AN OPPORTUNITY
TO PRESENT SUBSTANTIAL EVIDENCE CONTRARY TO THE PRESUMPTION SANCTIONED
BY THE PRIMA FACIE EVIDENCE FOR WHICH SUBDIVISION 2 OF SECTION 3022
MAKES PROVISION.  ONCE SUCH CONTRARY EVIDENCE HAS BEEN RECEIVED,
HOWEVER, THE OFFICIAL WHO MADE THE ORDER OF INELIGIBILITY HAS
THEREAFTER THE BURDEN OF SUSTAINING THE VALIDITY OF THAT ORDER BY A
FAIR PREPONDERANCE OF THE EVIDENCE.  (CIVIL SERVICE LAW, SEC. 12-A,
SUBD. (D).)  SHOULD AN ORDER OF INELIGIBILITY THEN ISSUE, THE PARTY
AGGRIEVED THEREBY MAY AVAIL HIMSELF OF THE PROVISIONS FOR REVIEW
PRESCRIBED BY THE SECTION OF THE STATUTE LAST CITED ABOVE.  IN THAT
VIEW THERE HERE ARISES NO QUESTION OF PROCEDURAL DUE PROCESS."  301
N.Y. 476, AT P. 494, 95 N.E.2D 806, AT 814-815.    WHERE, AS HERE, THE
RELATION BETWEEN THE FACT FOUND AND THE PRESUMPTION IS CLEAR AND DIRECT
AND IS NOT CONCLUSIVE, THE REQUIREMENTS OF DUE PROCESS ARE SATISFIED. 

WITHOUT RAISING IN THE COMPLAINT OR IN THE PROCEEDINGS IN THE LOWER
COURTS THE QUESTION OF THE CONSTITUTIONALITY OF SEC. 3021 OF THE
EDUCATION LAW OF NEW YORK, APPELLANTS URGE HERE FOR THE FIRST TIME THAT
THIS SECTION IS UNCONSTITUTIONALLY VAGUE.  THE QUESTION IS NOT BEFORE
US.  WE WILL NOT PASS UPON THE CONSTITUTIONALITY OF A STATE STATUTE
BEFORE THE STATE COURTS HAVE HAD AN OPPORTUNITY TO DO SO.  ASBURY
HOSPITAL V. CASS COUNTY, 326 U.S. 207, 213-216; ALABAMA STATE
FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 460-462; PLYMOUTH COAL
CO. V. PENNSYLVANIA, 232 U.S. 531, 546. 

IT IS ALSO SUGGESTED THAT THE USE OF THE WORD "SUBVERSIVE" IS VAGUE
AND INDEFINITE.  BUT THE WORD IS FIRST USED IN SEC. 1 OF THE FEINBERG
LAW, WHICH IS THE PREAMBLE TO THE ACT, AND NOT IN A DEFINITIVE PART
THEREOF.  WHEN USED IN SUBDIVISION 2 OF SEC. 3022, THE WORD HAS A VERY
DEFINITE MEANING, NAMELY, AN ORGANIZATION THAT TEACHES AND ADVOCATES
THE OVERTHROW OF GOVERNMENT BY FORCE OR VIOLENCE. 

WE FIND NO CONSTITUTIONAL INFIRMITY IN SEC. 12-A OF THE CIVIL SERVICE
LAW OF NEW YORK OR IN THE FEINBERG LAW WHICH IMPLEMENTED IT, AND THE
JUDGMENT IS AFFIRMED. 

FN1  N.Y. LAWS 1939, C. 547, AS AMENDED N.Y. LAWS 1940, C. 564. 

FN2  N.Y. LAWS 1949, C. 360. 

FN3  "SEC.  12-A.  INELIGIBILITY. 

"NO PERSON SHALL BE APPOINTED TO ANY OFFICE OR POSITION IN THE
SERVICE OF THE STATE OR OF ANY CIVIL DIVISION OR CITY THEREOF, NOR
SHALL ANY PERSON PRESENTLY EMPLOYED IN ANY SUCH OFFICE OR POSITION BE
CONTINUED IN SUCH EMPLOYMENT, NOR SHALL ANY PERSON BE EMPLOYED IN THE
PUBLIC SERVICE AS SUPERINTENDENTS, PRINCIPALS OR TEACHERS IN A PUBLIC
SCHOOL OR ACADEMY OR IN A STATE NORMAL SCHOOL OR COLLEGE, OR ANY OTHER
STATE EDUCATIONAL INSTITUTION WHO:  (A) BY WORD OF MOUTH OR WRITING
WILFULLY AND DELIBERATELY ADVOCATES, ADVISES OR TEACHES THE DOCTRINE
THAT THE GOVERNMENT OF THE UNITED STATES OR OF ANY STATE OR OF ANY
POLITICAL SUBDIVISION THEREOF SHOULD BE OVERTHROWN OR OVERTURNED BY
FORCE, VIOLENCE OR ANY UNLAWFUL MEANS; OR: 

"(B)  PRINTS, PUBLISHES, EDITS, ISSUES OR SELLS, ANY BOOK, PAPER,
DOCUMENT OR WRITTEN OR PRINTED MATTER IN ANY FORM CONTAINING OR
ADVOCATING, ADVISING OR TEACHING THE DOCTRINE THAT THE GOVERNMENT OF
THE UNITED STATES OR OF ANY STATE OR OF ANY POLITICAL SUBDIVISION
THEREOF SHOULD BE OVERTHROWN BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS,
AND WHO ADVOCATES, ADVISES, TEACHES, OR EMBRACES THE DUTY, NECESSITY OR
PROPRIETY OF ADOPTING THE DOCTRINE CONTAINED THEREIN: 

"(C)  ORGANIZES OR HELPS TO ORGANIZE OR BECOMES A MEMBER OF ANY
SOCIETY OR GROUP OF PERSONS WHICH TEACHES OR ADVOCATES THAT THE
GOVERNMENT OF THE UNITED STATES OR OF ANY STATE OR OF ANY POLITICAL
SUBDIVISION THEREOF SHALL BE OVERTHROWN BY FORCE OR VIOLENCE, OR BY ANY
UNLAWFUL MEANS: 

"(D)  A PERSON DISMISSED OR DECLARED INELIGIBLE MAY WITHIN FOUR
MONTHS OF SUCH DISMISSAL OR DECLARATION OF INELIGIBILITY BE ENTITLED TO
PETITION FOR AN ORDER TO SHOW CAUSE SIGNED BY A JUSTICE OF THE SUPREME
COURT, WHY A HEARING ON SUCH CHARGES SHOULD NOT BE HAD.  UNTIL THE
FINAL JUDGMENT ON SAID HEARING IS ENTERED, THE ORDER TO SHOW CAUSE
SHALL STAY THE EFFECT OF ANY ORDER OF DISMISSAL OR INELIGIBILITY BASED
ON THE PROVISIONS OF THIS SECTION.  THE HEARING SHALL CONSIST OF THE
TAKING OF TESTIMONY IN OPEN COURT WITH OPPORTUNITY FOR CROSS
EXAMINATION.  THE BURDEN OF SUSTAINING THE VALIDITY OF THE ORDER OF
DISMISSAL OR INELIGIBILITY BY A FAIR PREPONDERANCE OF THE CREDIBLE
EVIDENCE SHALL BE UPON THE PERSON MAKING SUCH DISMISSAL OR ORDER OF
INELIGIBILITY." 

FN4  "SEC.  3022.  ELIMINATION OF SUBVERSIVE PERSONS FROM THE PUBLIC
SCHOOL SYSTEM. 

"1.  THE BOARD OF REGENTS SHALL ADOPT, PROMULGATE, AND ENFORCE RULES
AND REGULATIONS FOR THE DISQUALIFICATION OR REMOVAL OF SUPERINTENDENTS
OF SCHOOLS, TEACHERS OR EMPLOYEES IN THE PUBLIC SCHOOLS IN ANY CITY OR
SCHOOL DISTRICT OF THE STATE WHO VIOLATE THE PERVISIONS OF SECTION
THREE THOUSAND TWENTY-ONE OF THIS ARTICLE OR WHO ARE INELIGIBLE FOR
APPOINTMENT TO OR RETENTION IN ANY OFFICE OR POSITION IN SUCH PUBLIC
SCHOOLS ON ANY OF THE GROUNDS SET FORTH IN SECTION TWELVE-A OF THE
CIVIL SERVICE LAW AND SHALL PROVIDE THEREIN APPROPRIATE METHODS AND
PROCEDURE FOR THE ENFORCEMENT OF SUCH SECTIONS OF THIS ARTICLE AND THE
CIVIL SERVICE LAW. 

"2.  THE BOARD OF REGENTS SHALL, AFTER INQUIRY, AND AFTER SUCH NOTICE
AND HEARING AS MAY BE APPROPRIATE, MAKE A LISTING OF ORGANIZATIONS
WHICH IT FINDS TO BE SUBVERSIVE IN THAT THEY ADVOCATE, ADVISE, TEACH OR
EMBRACE THE DOCTRINE THAT THE GOVERNMENT OF THE UNITED STATES OR OF ANY
STATE OR OF ANY POLITICAL SUBDIVISION THEREOF SHALL BE OVERTHROWN OR
OVERTURNED BY FORCE, VIOLENCE OR ANY UNLAWFUL MEANS, OR THAT THEY
ADVOCATE, ADVISE, TEACH OR EMBRACE THE DUTY, NECESSITY OR PROPRIETY OF
ADOPTING ANY SUCH DOCTRINE, AS SET FORTH IN SECTION TWELVE-A OF THE
CIVIL SERVICE LAW.  SUCH LISTINGS MAY BE AMENDED AND REVISED FROM TIME
TO TIME.  THE BOARD, IN MAKING SUCH INQUIRY, MAY UTILIZE ANY SIMILAR
LISTINGS OR DESIGNATIONS PROMULGATED BY ANY FEDERAL AGENCY OR AUTHORITY
AUTHORIZED BY FEDERAL LAW, REGULATION OR EXECUTIVE ORDER, AND FOR THE
PURPOSES OF SUCH INQUIRY, THE BOARD MAY REQUEST AND RECEIVE FROM SUCH
FEDERAL AGENCIES OR AUTHORITIES ANY SUPPORTING MATERIAL OR EVIDENCE
THAT MAY BE MADE AVAILABLE TO IT.  THE BOARD OF REGENTS SHALL PROVIDE
IN THE RULES AND REGULATIONS REQUIRED BY SUBDIVISION ONE HEREOF THAT
MEMBERSHIP IN ANY SUCH ORGANIZATION INCLUDED IN SUCH LISTING MADE BY IT
SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF DISQUALIFICATION FOR
APPOINTMENT TO OR RETENTION IN ANY OFFICE OR POSITION IN THE PUBLIC
SCHOOLS OF THE STATE." 

FN5  "SEC.  3021.  REMOVAL OF SUPERINTENDENTS, TEACHERS AND EMPLOYEES
FOR TREASONABLE OR SEDITIOUS ACTS OR UTTERANCES. 

"A PERSON EMPLOYED AS SUPERINTENDENT OF SCHOOLS, TEACHER OR EMPLOYEE
IN THE PUBLIC SCHOOLS, IN ANY CITY OR SCHOOL DISTRICT OF THE STATE,
SHALL BE REMOVED FROM SUCH POSITION FOR THE UTTERANCE OF ANY
TREASONABLE OR SEDITIOUS WORD OR WORDS OR THE DOING OF ANY TREASONABLE
OR SEDITIOUS ACT OR ACTS WHILE HOLDING SUCH POSITION." 

FN6  "SEC.  254.  DISQUALIFICATION OR REMOVAL OF SUPERINTENDENTS,
TEACHERS AND OTHER EMPLOYES. 

     *         *         *      *        * 

"2.  LIST OF SUBVERSIVE ORGANIZATIONS TO BE ISSUED.  PURSUANT TO
CHAPTER 360 OF THE LAWS OF 1949, THE BOARD OF REGENTS WILL ISSUE A
LIST, WHICH MAY BE AMENDED AND REVISED FROM TIME TO TIME, OF
ORGANIZATIONS WHICH THE BOARD FINDS TO BE SUBVERSIVE IN THAT THEY
ADVOCATE, ADVISE, TEACH OR EMBRACE THE DOCTRINE THAT THE GOVERNMENT OF
THE UNITED STATES, OR OF ANY STATE OR OF ANY POLITICAL SUBDIVISION
THEREOF, SHALL BE OVERTHROWN OR OVERTURNED BY FORCE, VIOLENCE OR ANY
UNLAWFUL MEANS, OR THAT THEY ADVOCATE, ADVISE, TEACH OR EMBRACE THE
DUTY, NECESSITY OR PROPRIETY OF ADOPTING ANY SUCH DOCTRINE, AS SET
FORTH IN SECTION 12-A OF THE CIVIL SERVICE LAW.  EVIDENCE OF MEMBERSHIP
IN ANY ORGANIZATION SO LISTED ON OR AFTER THE TENTH DAY SUBSEQUENT TO
THE DATE OF OFFICIAL PROMULGATION OF SUCH LIST SHALL CONSTITUTE PRIMA
FACIE EVIDENCE OF DISQUALIFICATION FOR APPOINTMENT TO OR RETENTION OF
ANY OFFICE OR POSITION IN THE SCHOOL SYSTEM.  EVIDENCE OF MEMBERSHIP IN
SUCH AN ORGANIZATION PRIOR TO SAID DAY SHALL BE PRESUMPTIVE EVIDENCE
THAT MEMBERSHIP HAS CONTINUED, IN THE ABSENCE OF A SHOWING THAT SUCH
MEMBERSHIP HAS BEEN TERMINATED IN GOOD FAITH."  OFFICIAL COMPILATION OF
CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK (FIFTH SUPP.),
VOL. 1, PP. 205-206. 

FN7  THE COURT OF APPEALS CONSTRUED THE STATUTE IN CONJUNCTION WITH
SEC.12-A SUBD. (D), SUPRA, N. 3.  THE RULES OF THE BOARD OF REGENTS
PROVIDED:  "IN ALL CASES ALL RIGHTS TO A FAIR TRIAL, REPRESENTATION BY
COUNSEL AND APPEAL OR COURT REVIEW AS PROVIDED BY STATUTE OR THE
CONSTITUTION SHALL BE SCRUPULOUSLY OBSERVED."  SECTION 254, 1(E),
OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF
NEW YORK (FIFTH SUPP.), VOL. 1, P. 206. 

FN8  IN THE PROCEEDINGS BELOW, BOTH THE APPELLATE DIVISION OF THE
SUPREME COURT AND THE COURT OF APPEALS CONSTRUED THE STATUTE TO REQUIRE
SUCH KNOWLEDGE.  276 APP. DIV. 527, 530, 96 N.Y.S.2D 466, 470-471; 301
N.Y. 476, 494, 95 N.E.2D 806, 814-815. 

MR. JUSTICE BLACK, DISSENTING. 

WHILE I FULLY AGREE WITH THE DISSENT OF MR. JUSTICE DOUGLAS, THE
IMPORTANCE OF THIS HOLDING PROMPTS ME TO ADD THESE THOUGHTS. 

THIS IS ANOTHER OF THOSE RAPIDLY MULTIPLYING LEGISLATIVE ENACTMENTS
WHICH MAKE IT DANGEROUS - THIS TIME FOR SCHOOL TEACHERS - TO THINK OR
SAY ANYTHING EXCEPT WHAT A TRANSIENT MAJORITY HAPPEN TO APPROVE AT THE
MOMENT.  BASICALLY THESE LAWS REST ON THE BELIEF THAT GOVERNMENT SHOULD
SUPERVISE AND LIMIT THE FLOW OF IDEAS INTO THE MINDS OF MEN.  THE
TENDENCY OF SUCH GOVERNMENTAL POLICY IS TO MOULD PEOPLE INTO A COMMON
INTELLECTUAL PATTERN.  QUITE A DIFFERENT GOVERNMENTAL POLICY RESTS ON
THE BELIEF THAT GOVERNMENT SHOULD LEAVE THE MIND AND SPIRIT OF MAN
ABSOLUTELY FREE.  SUCH A GOVERNMENTAL POLICY ENCOURAGES VARIED
INTELLECTUAL OUTLOOKS IN THE BELIEF THAT THE BEST VIEWS WILL PREVAIL. 
THIS POLICY OF FREEDOM IS IN MY JUDGMENT EMBODIED IN THE FIRST
AMENDMENT AND MADE APPLICABLE TO THE STATES BY THE FOURTEENTH.  BECAUSE
OF THIS POLICY PUBLIC OFFICIALS CANNOT BE CONSTITUTIONALLY VESTED WITH
POWERS TO SELECT THE IDEAS PEOPLE CAN THINK ABOUT, CENSOR THE PUBLIC
VIEWS THEY CAN EXPRESS, OR CHOOSE THE PERSONS OR GROUPS PEOPLE CAN
ASSOCIATE WITH.  PUBLIC OFFICIALS WITH SUCH POWERS ARE NOT PUBLIC
SERVANTS; THEY ARE PUBLIC MASTERS. 

I DISSENT FROM THE COURT'S JUDGMENT SUSTAINING THIS LAW WHICH
EFFECTIVELY PENALIZES SCHOOL TEACHERS FOR THIER THOUGHTS AND THEIR
ASSOCIATES. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

WE ARE ASKED TO PASS ON A SCHEME TO COUNTERACT WHAT ARE CURRENTLY
CALLED "SUBVERSIVE" INFLUENCES IN THE PUBLIC SCHOOL SYSTEM OF NEW
YORK.  THE SCHEME IS FORMULATED PARTLY IN STATUTES AND PARTLY IN
ADMINISTRATIVE REGULATIONS, BUT ALL OF IT IS STILL AN UNFINISHED
BLUEPRINT.  WE ARE ASKED TO ADJUDICATE CLAIMS AGAINST ITS
CONSTITUTIONALITY BEFORE THE SCHEME HAS BEEN PUT INTO OPERATION, BEFORE
THE LIMITS THAT IT IMPOSES UPON FREE INQUIRY AND ASSOCIATION, THE SCOPE
OF SCRUTINY THAT IT SANCTIONS, AND THE PROCEDURAL SAFEGUARDS THAT WILL
BE FOUND TO BE IMPLIED FOR ITS ENFORCEMENT HAVE BEEN AUTHORITATIVELY
DEFINED.  I THINK WE SHOULD ADHERE TO THE TEACHING OF THIS COURT'S
HISTORY TO AVOID CONSTITUTIONAL ADJUDICATIONS ON MERELY ABSTRACT OR
SPECULATIVE ISSUES AND TO BASE THEM ON THE CONCRETENESS AFFORDED BY AN
ACTUAL, PRESENT, DEFINED CONTROVERSY, APPROPRIATE FOR JUDICIAL
JUDGMENT, BETWEEN ADVERSARIES IMMEDIATELY AFFECTED BY IT.  IN
ACCORDANCE WITH THE SETTLED LIMITS UPON OUR JURISDICTION I WOULD
DISMISS THIS APPEAL. 

AN UNDERSTANDING OF THE STATUTORY SCHEME AND THE ACTION THUS FAR
TAKEN UNDER IT IS NECESSARY TO A PROPER CONSIDERATION OF THE ISSUES
WHICH FOR ME CONTROL DISPOSITION OF THE CASE, NAMELY, STANDING OF THE
PARTIES AND RIPENESS OF THE CONSTITUTIONAL QUESTION. 

A NEW YORK ENACTMENT OF 1949 PRECIPITATED THIS LITIGATION.  BUT THAT
LEGISLATION IS TIED TO PRIOR STATUTES.  BY A LAW OF 1917 "TREASONABLE
OR SEDITIOUS" UTTERANCES OR ACTS BARRED EMPLOYMENT IN THE PUBLIC
SCHOOLS.  NEW YORK EDUCATION LAW, SEC. 3021.  IN 1939 A FURTHER
ENACTMENT DISQUALIFIED FROM THE CIVIL SERVICE AND THE EDUCATIONAL
SYSTEM ANYONE WHO ADVOCATES THE OVERTHROW OF GOVERNMENT BY FORCE,
VIOLENCE OR ANY UNLAWFUL MEANS, OR PUBLISHES MATERIAL ADVOCATING SUCH
OVERTHROW OR ORGANIZES OR JOINS ANY SOCIETY ADVOCATING SUCH DOCTRINE. 
NEW YORK CIVIL SERVICE LAW, SEC. 12-A.  THIS STATES WITH SUFFICIENT
ACCURACY THE PROVISIONS OF THIS LAW, WHICH ALSO INCLUDED DETAILED
PROVISIONS FOR THE HEARING AND REVIEW OF CHARGES. 

DURING THE THIRTY-TWO YEARS AND TEN YEARS, RESPECTIVELY, THAT THESE
LAWS HAVE STOOD ON THE BOOKS, NO PRECEEDINGS, SO FAR AS APPEARS, HAVE
BEEN TAKEN UNDER THEM.  IN 1949 THE LEGISLATURE PASSED A NEW ACT,
FAMILIARLY KNOWN AS THE FEINBERG LAW, DESIGNED TO REINFORCE THE PRIOR
LEGISLATION.  THE LAW BEGINS WITH A LEGISLATIVE FINDING, BASED ON
"COMMON REPORT" OF WIDESPREAD INFILTRATION BY "MEMBERS OF SUBVERSIVE
GROUPS, AND PARTICULARLY OF THE COMMUNIST PARTY AND CERTAIN OF ITS
AFFILIATED ORGANIZATIONS," INTO THE EDUCATIONAL SYSTEM OF THE STATE AND
THE EVILS ATTENDANT UPON THAT INFILTRATION.  IT TAKES NOTE OF EXISTING
LAWS AND EXHORTS THE AUTHORITIES TO GREATER ENDEAVOR OF ENFORCEMENT. 
THE STATE BOARD OF REGENTS, IN WHICH ARE LODGED EXTENSIVE POWER OVER
NEW YORK'S EDUCATIONAL SYSTEM, WAS CHARGED BY THE FEINBERG LAW WITH
THESE DUTIES: 

(1)  TO PROMULGATE RULES AND REGULATIONS FOR THE MORE STRINGENT
ENFORCEMENT OF EXISTING LAW. 

(2)  TO LIST "AFTER INQUIRY, AND AFTER SUCH NOTICE AND HEARING AS MAY
BE APPROPRIATE" THOSE ORGANIZATIONS MEMBERSHIP IN WHICH IS PROSCRIBED
BY SUBSECTION (C) OF SEC. 12-A OF THE CIVIL SERVICE LAW. 

(3)  TO PROVIDE IN ITS RULES AND REGULATIONS THAT MEMBERSHIP IN A
LISTED ORGANIZATION SHALL BE PRIMA FACIE EVIDENCE OF DISQUALIFICATION
UNDER SEC. 12-A. 

(4)  TO REPORT SPECIALLY AND IN DETAIL TO THE LEGISLATURE EACH YEAR
ON MEASURES TAKEN FOR THE ENFORCEMENT OF THESE LAWS. 

ACCORDINGLY, THE BOARD OF REGENTS ADOPTED RULES FOR FERRETING OUT
VIOLATIONS OF SEC.  3021 OR SEC. 12-A.  AN ELABORATE MACHINERY WAS
DESIGNED FOR ANNUAL REPORTS ON EACH EMPLOYEE WITH A VIEW TO DISCOVERING
EVIDENCE OF VIOLATIONS OF THESE SECTIONS AND TO ASSURING APPROPRIATE
ACTION ON SUCH DISCOVERY.  THE BOARD ALSO ANNOUNCED ITS INTENTION TO
PUBLISH THE REQUIRED LIST OF PROSCRIBED ORGANIZATIONS AND DEFINED THE
SIGNIFICANCE OF AN EMPLOYEE'S MEMBERSHIP THEREIN IN PROCEEDINGS FOR HIS
DISMISSAL.  THESE RULES BY THE BOARD OF REGENTS WERE PUBLISHED WITH AN
ACCOMPANYING MEMORANDUM BY THE COMMISSIONER OF EDUCATION.  HE IS THE
ADMINISTRATIVE HEAD OF NEW YORK'S SCHOOL SYSTEM AND HIS MEMORANDUM WAS
FOR THE GUIDANCE OF SCHOOL OFFICIALS THROUGHOUT THE STATE.  IT WARNED
OF THE DANGER OF INDISCRIMINATE OR CARELESS ACTION UNDER THE FEINBERG
LAW AND THE REGENTS' RULES, AND LAID DOWN THIS DUTY:    "THE STATUTES
AND THE REGENTS' RULES MAKE IT CLEAR THAT IT IS A PRIMARY DUTY OF THE
SCHOOL AUTHORITIES IN EACH SCHOOL DISTRICT TO TAKE POSITIVE ACTION TO
ELIMINATE FROM THE SCHOOL SYSTEM ANY TEACHER IN WHOSE CASE THERE IS
EVIDENCE THAT HE IS GUILTY OF SUBVERSIVE ACTIVITY.  SCHOOL AUTHORITIES
ARE UNDER OBLIGATION TO PROCEED IMMEDIATELY AND CONCLUSIVELY IN EVERY
SUCH CASE."    THE RULES AND MEMORANDUM APPEAR IN THE RECORD; WE SHALL
HAVE OCCASION TO REFER LATER TO THEIR RELEVANCE TO WHAT WAS DECIDED
BELOW.  OUR ATTENTION HAS ALSO BEEN CALLED TO AN ORDER OF THE BOARD OF
EDUCATION OF THE CITY OF NEW YORK, THE PRESENT APPELLEE.  THIS ORDER
FURTHER ELABORATES THE PART OF THE REGENTS' RULES LEADING WITH REPORTS
ON TEACHERS.  IT IS NOT CLEAR WHETHER THIS ORDER HAS GONE INTO EFFECT. 
IN ANY EVENT IT WAS NOT BEFORE THE LOWER COURTS AND IS NOT IN THE
RECORD HERE. 

IT THUS APPEARS THAT WE ARE ASKED TO REVIEW A COMPLICATED STATUTORY
SCHEME PROHIBITING THOSE WHO ENGAGE IN THE KIND OF SPEECH OR CONDUCT
THAT IS PROSCRIBED FROM HOLDING POSITIONS IN THE PUBLIC SCHOOL SYSTEM. 
THE SCHEME IS ALIGNED WITH A COMPLEX SYSTEM OF ENFORCEMENT BY
ADMINISTRATIVE INVESTIGATION, REPORTING AND LISTING OF PROSCRIBED
ORGANIZATIONS.  ALL THIS MUST FURTHER BE RELATED TO THE GENERAL
PROCEDURES UNDER THE NEW YORK LAW FOR HEARING AND REVIEWING CHARGES OF
MISCONDUCT AGAINST EDUCATIONAL EMPLOYEES, MODIFIED AS THOSE PROCEDURES
MAY BE BY THE FEINBERG LAW AND THE REGENTS' RULES. 

THIS INTRICATE MACHINERY HAS NOT YET BEEN SET IN MOTION.  ENFORCEMENT
HAS BEEN IN ABEYANCE SINCE THE PRESENT SUIT, AMONG OTHERS, WAS BROUGHT
TO ENJOIN THE BOARD OF EDUCATION FROM TAKING STEPS OR SPENDING FUNDS
UNDER THE STATUTES AND RULES ON THE THEORY THAT THESE TRANSGRESSED
VARIOUS LIMITATIONS WHICH THE UNITED STATES CONSTITUTION PLACES ON THE
POWER OF THE STATES.  THE CASE COMES HERE ON THE BARE BONES OF THE
FEINBERG LAW ONLY PARTLY GIVEN FLESH BY THE REGENTS' RULES.  IT WAS
DECIDED WHOLLY ON PLEADINGS:  A COMPLIANT, IDENTIFYING THE PLAINTIFFS
AND THEIR INTERESTS, SETTING OUT THE OFFENDING STATUTES AND RULES, AND
CONCLUDING IN A MORE OR LESS ARGUMENTATIVE FASHION THAT THESE
PROVISIONS VIOLATE NUMEROUS CONSTITUTIONAL RIGHTS OF THE VARIOUS
PLAINTIFFS; AN ANSWER, DENYING THAT THE IMPACT OF THE STATUTE IS
UNCONSTITUTIONAL AND THAT THE PLAINTIFFS HAVE ANY INTEREST TO SUPPORT
THE SUIT.  ON THESE PLEADINGS SUMMARY JUDGMENT IN FAVOR OF SOME OF THE
PLAINTIFFS WAS GRANTED BY THE SUPREME COURT IN KINGS COUNTY, 196 MISC.
873, 95 N.Y.S.2D 114; THIS WAS REVERSED BY THE APPELLATE DIVISION FOR
THE SECOND DEPARTMENT WITH DIRECTION THAT THE COMPLAINT BE DISMISSED,
276 APP. DIV. 527, 96 N.Y.S.2D 466, AND THE COURT OF APPEALS AFFIRMED
THE APPELLATE DIVISION.  301 N.Y. 476, 95 N.E.2D 806.  THESE PLEADINGS
AND THE OPINIONS BELOW ARE THE BASIS ON WHICH WE ARE ASKED TO DECIDE
THIS CASE. 

ABOUT FORTY PLAINTIFFS BROUGHT THE ACTION INITIALLY; THE TRIAL COURT
DISMISSED AS TO ALL BUT EIGHT.  196 MISC., AT 877, 95 N.Y.S.2D, AT 117
118.  THE OTHERS WERE FOUND WITHOUT STANDING TO SUE UNDER NEW YORK
LAW.  THE EIGHT WHO ARE HERE AS APPELLANTS ALLEGED THAT THEY WERE
MUNICIPAL TAXPAYERS AND WERE EMPOWERED, BY VIRTUE OF N.Y. GEN.
MUNICIPAL LAW SEC. 51, TO BRING SUIT AGAINST MUNICIPAL AGENCIES TO
ENJOIN WASTE OF FUNDS.  NEW YORK IS FREE TO DETERMINE HOW THE VIEWS OF
ITS COURTS ON MATTERS OF CONSTITUTIONALITY ARE TO BE INVOKED.  BUT ITS
ACTION CANNOT OF COURSE CONFER JURISDICTION ON THIS COURT, LIMITED AS
THAT IS BY THE SETTLED CONSTRUCTION OF ARTICLE III OF THE
CONSTITUTION.  WE CANNOT ENTERTAIN, AS WE AGAIN RECOGNIZE THIS VERY
DAY, A CONSTITUTIONAL CLAIM AT THE INSTANCE OF ONE WHOSE INTEREST HAS
NO MATERIAL SIGNIFICANCE AND IS UNDIFFERENTIATED FROM THE MASS OF HIS
FELLOW CITIZENS.  DOREMUS V. BOARD OF EDUCATION, 342 U.S. 429.  THIS IS
NOT A "POCKETBOOK ACTION."  AS TAXPAYERS THESE PLAINTIFFS CANNOT
POSSIBLY BE AFFECTED ONE WAY OR THE OTHER BY ANY DISPOSITION OF THIS
CASE, AND THEY MAKE NO SUCH CLAIM.  IT MAY WELL BE THAT THE AUTHORITIES
WILL, IF LEFT FREE, DIVERT FUNDS AND EFFORT FROM OTHER PURPOSES FOR THE
ENFORCEMENT OF THE PROVISIONS UNDER REVIEW, THOUGH HOW MUCH LEADS TO
THE MEREST CONJECTURE.  BUT THE TOTAL EXPENDITURE, CERTAINLY THE NEW
EXPENDITURE, NECESSARY TO IMPLEMENT THE ACT AND RULES MAY WELL BE DE
MINIMIS.  THE PLAINTIFFS AT ANY RATE HAVE NOT ATTEMPTED TO SHOW THAT
ANY SUCH EXPENDITURE WOULD COME FROM FUNDS TO WHICH THEIR TAXES
CONTRIBUTE.  IN SHORT, THEY HAVE NEITHER ALLEGED NOR SHOWN THAT OUR
DECISION ON THE ISSUES THEY TENDER WOULD HAVE THE SLIGHTEST EFFECT ON
THEIR TAX BILLS OR EVEN ON THE AGGREGATE BILL OF ALL THE CITY'S
TAXPAYERS WHOM THEY CLAIM TO REPRESENT.  THE HIGH IMPROBABILITY OF
BEING ABLE TO MAKE SUCH A DEMONSTRATION, IN THE CIRCUMSTANCES OF THIS
CASE, DOES NOT DISPENSE WITH THE REQUIREMENTS FOR OUR JURISDICTION.  IF
THE INCIDENCE OF TAXATION IN A CITY LIKE NEW YORK BEARS NO RELATION TO
THE FACTORS HERE UNDER CONSIDERATION, THAT IS PRECISELY WHY THESE
TAXPAYERS HAVE NO CLAIM ON OUR JURISDICTION. 

THIS ENDS THE MATTER FOR PLAINTIFFS KRIEGER AND NEWMAN.  BUT SIX OF
THE PLAINTIFFS ADVANCED GROUNDS OTHER THAN THAT OF BEING TAXPAYERS IN
BRINGING THIS ACTION.  TWO ARE PARENTS OF CHILDREN IN NEW YORK CITY
SCHOOLS.  FOUR ARE TEACHERS IN THESE SCHOOLS.  ON THE BASIS OF THE
RECORD BEFORE US THESE CLAIMS, TOO, ARE INSUFFICIENT, IN VIEW OF OUR
CONTROLLING ADJUDICATIONS, TO SUPPORT THE JURISDICTION OF THIS COURT. 

THE TRIAL COURT FOUND THE INTERESTS OF THE PLAINTIFFS AS PARENTS
INCONSEQUENTIAL.  196 MISC., AT 875, 95 N.Y.S.2D, AT 816.  I AGREE. 
PARENTS MAY DISLIKE TO HAVE CHILDREN EDUCATED IN A SCHOOL SYSTEM WHERE
TEACHERS FEEL RESTRAINED BY UNCONSTITUTIONAL LIMITATIONS ON THEIR
FREEDOM.  BUT IT IS LIKE CATCHING BUTTERFLIES WITHOUT A NET TO TRY TO
FIND A LEGAL INTEREST, INDISPENSABLE FOR OUR JURISDICTION, IN A
PARENT'S DESIRE TO HAVE HIS CHILD EDUCATED IN SCHOOLS FREE FROM SUCH
RESTRICTIONS.  THE HURT TO PARENTS' SENSIBILITIES IS TOO TENUOUS OR THE
INROAD UPON RIGHTFUL CLAIMS TO PUBLIC EDUCATION TOO ARGUMENTATIVE TO
SERVE AS THE EARTHY STUFF REQUIRED FOR A LEGAL RIGHT JUDICIALLY
ENFORCEABLE.  THE CLAIM DOES NOT APPROACH IN IMMEDIACY OR DIRECTNESS OR
SOLIDITY THAT WHICH OUR WHOLE PROCESS OF CONSTITUTIONAL ADJUDICATION
HAS DEEMED A NECESSARY CONDITION TO THE COURT'S SETTLEMENT OF
CONSTITUTIONAL ISSUES. 

AN APT CONTRAST IS PROVIDED BY MCCOLLUM V. BOARD OF EDUCATION, 333
U.S. 203, WHERE A PARENT DID PRESENT AN INDIVIDUALIZED CLAIM OF HIS OWN
THAT WAS DIRECT AND PALPABLE.  THERE THE PARENT ALLEGED THAT ILLINOIS
IMPOSED RESTRICTIONS ON THE CHILD'S FREE EXERCISE OF FAITH AND THEREBY
ON THE PARENT'S.  THE BASIS OF JURISDICTION IN THE MCCOLLUM CASE WAS
NOT AT ALL A PARENTAL RIGHT TO CHALLENGE IN THE COURTS - OR AT LEAST IN
THIS COURT - EDUCATIONAL PROVISIONS IN GENERAL.  THE CLOSELY DEFINED
ENCROACHMENT OF THE PARTICULAR ARRANGEMENT ON A CONSTITUTIONALLY
PROTECTED RIGHT OF THE CHILD, AND OF THE PARENT'S RIGHT IN THE CHILD,
FURNISHED THE BASIS FOR OUR REVIEW.  THE FEINBERG LAW PUTS NO LIMITS ON
ANY DEFINABLE LEGAL INTEREST OF THE CHILD OR OF ITS PARENTS. 

THIS LEAVES ONLY THE TEACHERS, ADLER, SPENCER, AND GEORGE AND MARK
FRIEDLANDER.  THE QUESTION WHETHER THEIR INTEREST AS TEACHERS WAS
SUFFICIENT TO GIVE THEM STANDING TO SUE WAS THOUGHT BY THE TRIAL COURT
TO BE CONCLUSIVELY SETTLED BY OUR DECISION IN UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75.  I SEE NO ESCAPE FROM THE CONTROLLING RELEVANCE
OF THE MITCHELL CASE.  THERE INDIVIDUAL GOVERNMENT EMPLOYEES SOUGHT TO
ENJOIN ENFORCEMENT OF THE PROVISIONS OF THE HATCH ACT FORBIDDING
GOVERNMENT EMPLOYEES TO TAKE ACTIVE PART IN POLITCS.  THE COMPLAINT
CONTAINED DETAILED RECITALS OF THE DESIRE, INTENT AND SPECIFIC STEPS
SHORT OF VIOLATION ON THE PART OF PLAINTIFFS TO ENGAGE IN THE
PROHIBITED ACTIVITIES.  SEE ID., AT 87-88, N. 18.  THERE AS HERE THE
LAW WAS ATTACKED AS VIOLATING CONSTITUTIONAL GUARANTIES OF FREEDOM OF
SPEECH.  WE FOUND JURISDICTION WANTING TO DECIDE THE ISSUE EXCEPT AS TO
ONE PLAINTIFF WHOSE CONDUCT HAD ALREADY VIOLATED THE APPLICABLE
STANDARDS. 

THE ALLEGATIONS IN THE PRESENT ACTION FALL SHORT OF THOSE FOUND
INSUFFICIENT IN THE MITCHELL CASE.   THESE TEACHERS DO NOT ALLEGE THAT
THEY HAVE ENGAGED IN PROSCRIBED CONDUCT OR THAT THEY HAVE ANY INTENTION
TO DO SO.  THEY DO NOT SUGGEST THAT THEY HAVE BEEN, OR ARE, DETERRED
FROM SUPPORTING CAUSES OR FROM JOINING ORGANIZATIONS FOR FEAR OF THE
FEINBERG LAW'S INTERDICT, EXCEPT TO SAY GENERALLY THAT THE SYSTEM
COMPLAINED OF WILL HAVE THIS EFFECT ON TEACHERS AS A GROUP.  THEY DO
NOT ASSERT THAT THEY ARE THREATENED WITH ACTION UNDER THE LAW, OR THAT
STEPS ARE IMMINENT WHEREBY THEY WOULD INCUR THE HAZARD OF PUNISHMENT
FOR CONDUCT INNOCENT AT THE TIME, OR UNDER STANDARDS TOO VAGUE TO
SATISFY DUE PROCESS OF LAW.  THEY MERELY ALLEGE THAT THE STATUTES AND
RULES PERMIT SUCH ACTION AGAINST SOME TEACHERS.  SINCE WE RIGHTLY
REFUSED IN THE MITCHELL CASE TO HEAR GOVERNMENT EMPLOYEES WHOSE CONDUCT
WAS MUCH MORE INTIMATELY AFFECTED BY THE LAW THERE ATTACKED THAN ARE
THE CLAIMS OF PLAINTIFFS HERE, THIS SUIT IS WANTING IN THE NECESSARY
BASIS FOR OUR REVIEW. 

THIS CASE PROVES ANEW THE WISDOM OF RIGOROUS ADHERENCE TO THE
PREREQUISITES FOR PRONOUNCEMENT BY THIS COURT ON MATTERS OF
CONSTITUTIONAL LAW.  THE ABSENCE IN THESE PLAINTIFFS OF THE IMMEDIACY
AND SOLIDITY OF INTEREST NECESSARY TO SUPPORT JURISDICTION IS REFLECTED
IN THE ATMOSPHERE OF ABSTRACTION AND AMBIGUITY IN WHICH THE
CONSTITUTIONAL ISSUES ARE PRESENTED.  THE BROAD, GENERALIZED CLAIMS
URGED AT THE BAR TOUCH THE DEEPEST INTERESTS OF A DEMOCRATIC SOCIETY:
ITS RIGHT TO SELF-PRESERVATION AND AMPLE SCOPE FOR THE INDIVIDUAL'S
FREEDOM, ESPECIALLY THE TEACHER'S FREEDOM OF THOUGHT, INQUIRY AND
EXPRESSION.  NO PROBLEM OF A FREE SOCIETY IS PROBABLY MORE DIFFICULT
THAN THE RECONCILIATION OR ACCOMMODATION OF THESE TOO OFTEN CONFLICTING
INTERESTS.  THE JUDICIAL ROLE IN THIS PROCESS OF ACCOMMODATION IS
NECESSARILY VERY LIMITED AND MUST BE CAREFULLY CIRCUMSCRIBED.  TO THAT
END THE COURT, IN ITS LONG HISTORY, HAS DEVELOPED "A SERIES OF RULES"
CAREFULLY FORMULATED BY MR. JUSTICE BRANDEIS, "UNDER WHICH IT HAS
AVOIDED PASSING UPON A LARGE PART OF ALL THE CONSTITUTIONAL QUESTIONS
PRESSED UPON IT FOR DECISION."  ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 346. 

WE HAVE EMPHASIZED THAT, AS TO THE KIND OF CONSTITUTIONAL QUESTIONS
RAISED BY THE FEINBERG LAW, "THE DISTINCTION IS ONE OF DEGREE, AND IT
IS FOR THIS REASON THAT THE EFFECT OF THE STATUTE IN PROSCRIBING
BELIEFS - LIKE ITS EFFECT IN RESTRAINING SPEECH OR FREEDOM OF
ASSOCIATION - MUST BE CAREFULLY WEIGHED BY THE COURTS IN DETERMINING
WHETHER THE BALANCE STRUCK BY (THE STATE) COMPORTS WITH THE DICTATES OF
THE CONSTITUTION."  AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.
382, 409.  BUT AS THE CASE COMES TO US WE CAN HAVE NO GUIDE OTHER THAN
OUR OWN NOTIONS - HOWEVER UNCRITICALLY EXTRA-JUDICIAL - OF THE REAL
BEARING OF THE NEW YORK ARRANGEMENT ON THE FREEDOM OF THOUGHT AND
ACTIVITY, AND ESPECIALLY ON THE FEELING OF SUCH FREEDOM, WHICH ARE, AS
I SUPPOSE NO ONE WOULD DENY, PART OF THE NECESSARY PROFESSIONAL
EQUIPMENT OF TEACHERS IN A FREE SOCIETY.  THE SCHEME FOR PROTECTING THE
SCHOOL SYSTEM FROM BEING MADE THE INSTRUMENT OF PURPOSES OTHER THAN A
SCHOOL SYSTEM SHOULD SERVE IN A FREE SOCIETY - CERTAINLY A CONCERN
WITHIN THE CONSTITUTIONAL POWERS OF A STATE - BRISTLES WITH AMBIGUITIES
WHICH MUST ENTER INTO ANY CONSTITUTIONAL DECISION WE MAY MAKE.  OF
THESE ONLY A FEW HAVE BEEN CONSIDERED BY THE COURTS BELOW.  WE ARE TOLD
THAT AN ORGANIZATION CANNOT BE LISTED BY THE REGENTS EXCEPT AFTER
HEARING.  301 N.Y., AT 488, 493, 494, 95 N.E.2D, AT 810-811, 814-815. 
FROM THIS IT MAY BE ASSUMED THAT THE HEARING CONTEMPLATED IS THAT FOUND
WANTING BY SOME MEMBERS OF THIS COURT IN JOINT ANTI-FASCIST REFUGEE
COMMITTEE V. MCGRATH, 341 U.S. 123.  THE EFFECT OF THE REQUIREMENT THAT
MEMBERSHIP IN A LISTED ORGANIZATION BE PRIMA FACIE EVIDENCE OF
DISQUALIFICATION IN A DISMISSAL PROCEEDING IS ENLARGED UPON.  301 N.Y.,
AT 494, 95 N.E.2D, AT 814-815.  AND THE COURT OF APPEALS INDICATES THAT
ONLY ONE WHO "KNOWINGLY HOLDS MEMBERSHIP IN AN ORGANIZATION NAMED UPON
ANY LISTING" IS SUBJECTED TO THE OPERATION OF THAT REBUTTABLE
PRESUMPTION.  ID., AT 494, 95 N.E.2D, AT 814. 

THESE ARE THE ONLY ISLANDS OF CLARITY.  OTHERWISE WE ARE AT SEA.  WE
ARE NOT TOLD THE MEANING TO BE ATTRIBUTED TO THE WORDS "TREASONABLE OR
SEDITIOUS" IN SEC. 3021 OF THE EDUCATION LAW, THOUGH THAT IS ONE OF THE
TWO SECTIONS OF PREEXISTING LAW WHICH THE ELABORATE APPARATUS OF THE
FEINBERG LAW IS DESIGNED TO ENFORCE.  IN LIGHT OF THE EXPERIENCE UNDER
THE SEDITION ACT OF 1798, 1 STAT. 596, "SEDITIOUS" CAN HARDLY BE DEEMED
A SELF-DEFINING TERM OR A WORD OF ART. SEE MILLER, CRISIS IN FREEDOM,
136-137.  NOR CAN WE TURN TO PRACTICAL APPLICATION OR JUDICIAL
CONSTRUCTION FOR SUFFICIENT PARTICULARITY OF THE MEANING TO BE
ATTRIBUTED TO THE RANGE OF ACTIVITY PROSCRIBED BY SEC. 12-A. CONCERN
OVER THE LATITUDE AFFORDED BY SUCH PHRASES AS "THE OVERTHROW OF
GOVERNMENT BY  ...  ANY UNLAWFUL MEANS" WHEN POSITIONS OF TRUST OR
PUBLIC EMPLOYMENT ARE CONDITIONED UPON DISBELIEF IN SUCH AN OBJECTIVE
CANNOT BE DEEMED WITHOUT WARRANT.  SEE AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382, 415, 435; GARNER V. BOARD OF PUBLIC WORKS OF LOS
ANGELES, 341 U.S. 716, 724.  IN THOSE CASES THE COURT HAD GROUND FOR
LIMITING THE REACH OF A DUBIOUS FORMULA.  NO SUCH ALTERNATIVE IS
AVAILABLE HERE.    THESE GAPS IN OUR UNDERSTANDING OF THE PRECISE SCOPE
OF THE STATUTORY PROVISIONS ARE DEEPENED BY EQUAL UNCERTAINTIES IN THE
IMPLEMENTING RULES.  INDEED, ACCORDING TO THE APPELLATE DIVISION THESE
RULES ARE NOT IN THE CASE.  276 APP. DIV., AT 531, 96 N.Y.S.2D, AT
471.  AND THE COURT OF APPEALS WAS SILENT ON THE POINT.  THEREFORE WE
ARE WITHOUT ENLIGHTENMENT, FOR EXAMPLE, ON THE NATURE OF THE REPORTING
SYSTEM DESCRIBED BY THE RULES.  THIS MAY BE A VITAL MATTER, AFFECTING
NOT THE SPECIAL CIRCUMSTANCES OF A PARTICULAR CASE BUT COLORING THE
WHOLE SCHEME.  FOR IT MAY WELL BE OF CONSTITUTIONAL SIGNIFICANCE
WHETHER THE REPORTING SYSTEM COMTEMPLATES MERELY THE NOTATION AS TO
EACH TEACHER THAT NO EVIDENCE OF DISQUALIFICATION HAS TURNED UP, IF
SUCH BE THE CASE, OR WHETHER IT DEMANDS SYSTEMATIC AND CONTINUOUS
SURVEILLANCE AND INVESTIGATION OF EVIDENCE.  THE DIFFERENCE CANNOT BE
MEANINGLESS, IT MAY EVEN BE DECISIVE, IF OUR FUNCTION IS TO BALANCE THE
RESTRICTIONS ON FREEDOM OF UTTERANCE AND OF ASSOCIATION AGAINST THE
EVIL TO BE SUPPRESSED.  AGAIN, THE RULES SEEM TO INDICATE THAT PAST
ACTIVITIES OF THE PROSCRIBED ORGANIZATIONS OR PAST MEMBERSHIP IN LISTED
ORGANIZATIONS MAY BE ENOUGH TO BAR NEW APPLICANTS FOR EMPLOYMENT.  BUT
WE DO NOT KNOW, NOR CAN WE DETERMINE IT.  THIS, TOO, MAY MAKE A
DIFFERENCE.  SEE GARNER V. BOARD OF PUBLIC WORKS OF LOS ANGELES, SUPRA,
AT 729 (MR. JUSTICE BURTON DISSENTING IN PART).  WE DO NOT KNOW, NOR
CAN WE ASCERTAIN, THE EFFECT OF THE PRESUMPTION OF CONTINUING
MEMBERSHIP IN PROSCRIBED ORGANIZATIONS THAT IS DRAWN FROM EVIDENCE OF
PAST MEMBERSHIP "IN THE ABSENCE OF A SHOWING THAT SUCH MEMBERSHIP HAS
BEEN TERMINATED IN GOOD FAITH."  WE ARE UNINFORMED OF THE EFFECT IN LAW
OF THE COMMISSIONER'S MEMORANDUM, AND THERE IS NO BASIS ON WHICH TO
APPRAISE ITS EFFECT IN PRACTICE.  AS FOR THE ORDER OF THE BOARD OF
EDUCATION OF THE CITY OF NEW YORK, IT IS NOT EVEN FORMALLY IN THE
CASE.  IN THE FACE OF SUCH UNCERTAINTIES THIS COURT HAS IN THE PAST
FOUND JURISDICTION WANTING, HOWSOEVER MUCH THE LITIGANTS WERE EAGER FOR
CONSTITUTIONAL PRONOUNCEMENTS.  ALABAMA STATE FEDERATION OF LABOR V.
MCADORY, 325 U.S. 450; CONGRESS OF INDUSTRIAL ORGANIZATIONS V. MCADORY,
325 U.S. 472; RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549; PARKER V.
COUNTY OF LOS ANGELES, 338 U.S. 327. 

THIS STATEMENT OF REASONS FOR DECLINING JURISDICTION SOUNDS
TECHNICAL, PERHAPS, BUT THE PRINCIPLES CONCERNED ARE NOT SO.  RARE
DEPARTURES FROM THEM ARE REGRETTABLE CHAPTERS IN THE COURT'S HISTORY,
AND IN WELL-KNOWN INSTANCES THEY CAUSED GREAT PUBLIC MISFORTUNE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I HAVE NOT BEEN ABLE TO ACCEPT THE RECENT DOCTRINE THAT A CITIZEN WHO
ENTERS THE PUBLIC SERVICE CAN BE FORCED TO SACRIFICE HIS CIVIL RIGHT.*
I CANNOT FOR EXAMPLE FIND IN OUR CONSTITUTIONAL SCHEME THE POWER OF A
STATE TO PLACE ITS EMPLOYEES IN THE CATEGORY OF SECOND-CLASS CITIZENS
BY DENYING THEM FREEDOM OF THOUGHT AND EXPRESSION.  THE CONSTITUTION
GUARANTEES FREEDOM OF THOUGHT AND EXPRESSION TO EVERYONE IN OUR
SOCIETY.  ALL ARE ENTITLED TO IT; AND NONE NEEDS IT MORE THAN THE
TEACHER. 

*UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75; GARNER V. BOARD OF
PUBLIC WORKS OF LOS ANGELES, 341 U.S. 716. 

THE PUBLIC SCHOOL IS IN MOST RESPECTS THE CRADLE OF OUR DEMOCRACY. 
THE INCREASING ROLE OF THE PUBLIC SCHOOL IS SEIZED UPON BY PROPONENTS
OF THE TYPE OF LEGISLATION REPRESENTED BY NEW YORK'S FEINBERG LAW AS
PROOF OF THE IMPORTANCE AND NEED FOR KEEPING THE SCHOOL FREE OF
"SUBVERSIVE INFLUENCES."  BUT THAT IS TO MISCONCEIVE THE EFFECT OF THIS
TYPE OF LEGISLATION.  INDEED THE IMPACT OF THIS KIND OF CENSORSHIP ON
THE PUBLIC SCHOOL SYSTEM ILLUSTRATES THE HIGH PURPOSE OF THE FIRST
AMENDMENT IN FREEING SPEECH AND THOUGHT FROM CENSORSHIP. 

THE PRESENT LAW PROCEEDS ON A PRINCIPLE REPUGNANT TO OUR SOCIETY -
GUILT BY ASSOCIATION.  A TEACHER IS DISQUALIFIED BECAUSE OF HER
MEMBERSHIP IN AN ORGANIZATION FOUND TO BE "SUBVERSIVE."  THE FINDING AS
TO THE "SUBVERSIVE" CHARACTER OF THE ORGANIZATION IS MADE IN A
PROCEEDING TO WHICH THE TEACHER IS NOT A PARTY AND IN WHICH IT IS NOT
CLEAR THAT SHE MAY EVEN BE HEARD.  TO BE SURE, SHE MAY HAVE A HEARING
WHEN CHARGES OF DISLOYALTY ARE LEVELED AGAINST HER.  BUT IN THAT
HEARING THE FINDING AS TO THE "SUBVERSIVE" CHARACTER OF THE
ORGANIZATION APPARENTLY MAY NOT BE REOPENED IN ORDER TO ALLOW HER TO
SHOW THE TRUTH OF THE MATTER.  THE IRREBUTTABLE CHARGE THAT THE
ORGANIZATION IS "SUBVERSIVE" THEREFORE HANGS AS AN OMINOUS CLOUD OVER
HER OWN HEARING.  THE MERE FACT OF MEMBERSHIP IN THE ORGANIZATION
RAISES A PRIMA FACIE CASE OF HER OWN GUILT.  SHE MAY, IT IS SAID, SHOW
HER INNOCENCE.  BUT INNOCENCE IN THIS CASE TURNS ON KNOWLEDGE; AND WHEN
THE WITCH HUNT IS ON, ONE WHO MUST RELY ON IGNORANCE LEANS ON A FEEBLE
REED. 

THE VERY THREAT OF SUCH A PROCEDURE IS CERTAIN TO RAISE HAVOC WITH
ACADEMIC FREEDOM.  YOUTHFUL INDISCRETIONS, MISTAKEN CAUSES, MISGUIDED
ENTHUSIASMS - ALL LONG FORGOTTEN - BECOME THE GHOSTS OF A HARROWING
PRESENT.  ANY ORGANIZATION COMMITTED TO A LIBERAL CAUSE, ANY GROUPS
ORGANIZED TO REVOLT AGAINST AN HYSTERICAL TREND, ANY COMMITTEE LAUNCHED
TO SPONSOR AN UNPOPULAR PROGRAM BECOMES SUSPECT.   THESE ARE THE
ORGANIZATIONS INTO WHICH COMMUNISTS OFTEN INFILTRATE.  THEIR PRESENCE
INFECTS THE WHOLE, EVEN THOUGH THE PROJECT WAS NOT CONCEIVED IN SIN.  A
TEACHER CAUGHT IN THAT MESH IS ALMOST CERTAIN TO STAND CONDEMNED. 
FEARING CONDEMNATION, SHE WILL TEND TO SHRINK FROM ANY ASSOCIATION THAT
STIRS CONTROVERSY.  IN THAT MANNER FREEDOM OF EXPRESSION WILL BE
STIFLED. 

BUT THAT IS ONLY PART OF IT.  ONCE A TEACHER'S CONNECTION WITH A
LISTED ORGANIZATION IS SHOWN, HER VIEWS BECOME SUBJECT TO SCRUTINY TO
DETERMINE WHETHER HER MEMBERSHIP IN THE ORGANIZATION IS INNOCENT OR, IF
SHE WAS FORMERLY A MEMBER, WHETHER SHE HAS BONA FIDE ABANDONED HER
MEMBERSHIP. 

THE LAW INEVITABLY TURNS THE SCHOOL SYSTEM INTO A SPYING PROJECT. 
REGULAR LOYALTY REPORTS ON THE TEACHERS MUST BE MADE OUT.  THE
PRINCIPALS BECOME DETECTIVES; THE STUDENTS, THE PARENTS, THE COMMUNITY
BECOME INFORMERS.  EARS ARE COCKED FOR TELL-TALE SIGNS OF DISLOYALTY. 
THE PREJUDICES OF THE COMMUNITY COME INTO PLAY IN SEARCHING OUT THE
DISLOYAL.  THIS IS NOT THE USUAL TYPE OF SUPERVISION WHICH CHECKS A
TEACHER'S COMPETENCY; IT IS A SYSTEM WHICH SEARCHES FOR HIDDEN MEANINGS
IN A TEACHER'S UTTERANCES. 

WHAT WAS THE SIGNIFICANCE OF THE REFERENCE OF THE ART TEACHER TO
SOCIALISM?  WHY WAS THE HISTORY TEACHER SO OPENLY HOSTILE TO FRANCO
SPAIN?  WHO HEARD OVERTONES OF REVOLUTION IN THE ENGLISH TEACHER'S
DISCUSSION OF THE GRAPES OF WRATH?  WHAT WAS BEHIND THE PRAISE OF
SOVIET PROGRESS IN METALLURGY IN THE CHEMISTRY CLASS?  WAS IT NOT
"SUBVERSIVE" FOR THE TEACHER TO CAST DOUBT ON THE WISDOM OF THE VENTURE
IN KOREA? 

WHAT HAPPENS UNDER THIS LAW IS TYPICAL OF WHAT HAPPENS IN A POLICE
STATE.  TEACHERS ARE UNDER CONSTANT SURVEILLANCE; THEIR PASTS ARE
COMBED FOR SIGNS OF DISLOYALTY; THEIR UTTERANCES ARE WATCHED FOR CLUES
TO DANGEROUS THOUGHTS.  A PALL IS CAST OVER THE CLASSROOMS.  THERE CAN
BE NO REAL ACADEMIC FREEDOM IN THAT ENVIRONMENT.  WHERE SUSPICION FILLS
THE AIR AND HOLDS SCHOLARS IN LINE FOR FEAR OF THEIR JOBS, THERE CAN BE
NO EXERCISE OF THE FREE INTELLECT.  SUPINENESS AND DOGMATISM TAKE THE
PLACE OF INQUIRY.  A "PARTY LINE" - AS DANGEROUS AS THE "PARTY LINE" OF
THE COMMUNISTS - LAYS HOLD.  IT IS THE "PARTY LINE" OF THE ORTHODOX
VIEW, OF THE CONVENTIONAL THOUGHT, OF THE ACCEPTED APPROACH.  A PROBLEM
CAN NO LONGER BE PURSUED WITH IMPUNITY TO ITS EDGES.  FEAR STALKS THE
CLASSROOM.  THE TEACHER IS NO LONGER A STIMULANT TO ADVENTUROUS
THINKING; SHE BECOMES INSTEAD A PIPE LINE FOR SAFE AND SOUND
INFORMATION.  A DEADENING DOGMA TAKES THE PLACE OF FREE INQUIRY. 
INSTRUCTION TENDS TO BECOME STERILE; PURSUIT OF KNOWLEDGE IS
DISCOURAGED; DISCUSSION OFTEN LEAVES OFF WHERE IT SHOULD BEGIN. 

THIS, I THINK, IS WHAT HAPPENS WHEN A CENSOR LOOKS OVER A TEACHER'S
SHOULDER.  THIS SYSTEM OF SPYING AND SURVEILLANCE WITH ITS ACCOMPANYING
REPORTS AND TRIALS CANNOT GO HAND IN HAND WITH ACADEMIC FREEDOM.  IT
PRODUCES STANDARDIZED THOUGHT, NOT THE PURSUIT OF TRUTH.  YET IT WAS
THE PURSUIT OF TRUTH WHICH THE FIRST AMENDMENT WAS DESIGNED TO
PROTECT.  A SYSTEM WHICH DIRECTLY OR INEVITABLY HAS THAT EFFECT IS
ALIEN TO OUR SYSTEM AND SHOULD BE STRUCK DOWN.  ITS SURVIVAL IS A REAL
TREAT TO OUR WAY OF LIFE.  WE NEED BE BOLD AND ADVENTURESOME IN OUR
THINKING TO SURVIVE.  A SCHOOL SYSTEM PRODUCING STUDENTS TRAINED AS
ROBOTS THREATENS TO ROB A GENERATION OF THE VERSATILITY THAT HAS BEEN
PERHAPS OUR GREATEST DISTINCTION.  THE FRAMERS KNEW THE DANGER OF
DOGMATISM; THEY ALSO KNEW THE STRENGTH THAT COMES WHEN THE MIND IS
FREE, WHEN IDEAS MAY BE PURSUED WHEREVER THEY LEAD.  WE FORGET THESE
TEACHINGS OF THE FIRST AMENDMENT WHEN WE SUSTAIN THIS LAW. 

OF COURSE THE SCHOOL SYSTEMS OF THE COUNTRY NEED NOT BECOME CELLS FOR
COMMUNIST ACTIVITIES; AND THE CLASSROOMS NEED NOT BECOME FORUMS FOR
PROPAGANDIZING THE MARXIST CREED.  BUT THE GUILT OF THE TEACHER SHOULD
TURN ON OVERT ACTS.  SO LONG AS SHE IS A LAW-ABIDING CITIZEN, SO LONG
AS HER PERFORMANCE WITHIN THE PUBLIC SCHOOL SYSTEM MEETS PROFESSIONAL
STANDARDS, HER PRIVATE LIFE, HER POLITICAL PHILOSOPHY, HER SOCIAL CREED
SHOULD NOT BE THE CAUSE OF REPRISALS AGAINST HER. 
..END :




















BLACKMAR V. GUERRE 342 U.S. 512 


NO. 361.  ARGUED JANUARY 30-31, 1952.  - DECIDED MARCH 3, 1952.  - 190
F.2D 427, AFFIRMED. 


PETITIONER WAS DISCHARGED FROM HIS POSITION IN THE REGIONAL OFFICE OF
THE VETERANS' ADMINISTRATION IN NEW ORLEANS AND THIS ACTION WAS
SUSTAINED BY THE CIVIL SERVICE COMMISSION IN WASHINGTON.  HE BROUGHT
SUIT IN A FEDERAL DISTRICT COURT IN LOUISIANA AGAINST THE MANAGER OF
THE REGIONAL OFFICE AND THE CIVIL SERVICE COMMISSION (EO NOMINE) TO
HAVE THESE ACTIONS SET ASIDE.  HELD:  THE SUIT WAS PROPERLY DISMISSED. 
PP. 513-516. 

1.  DEFENDANTS' CHALLENGES TO THE VENUE AND JURISDICTION OF THE
DISTRICT COURT WERE PROPERLY PRESENTED BY MOTION AND ANSWER.  FED.
RULES CIV. PROC., 12(B).  P. 514. 

2.  CONGRESS HAS NOT CONSTITUTED THE CIVIL SERVICE COMMISSION A BODY
CORPORATE OR AUTHORIZED IT TO BE SUED EO NOMINE.  PP. 514-516. 

(A)  THE PRESENT SUIT AGAINST THE COMMISSION EO NOMINE IS NOT
AUTHORIZED BY THE HATCH ACT, 5 U.S.C. SEC. 118KC).  PP. 514-515. 

(B)  NOR WAS THIS SUIT AUTHORIZED BY THE ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. SEC.  1009, WHICH PROVIDES FOR REVIEW OF AGENCY ACTION
ONLY IN A COURT OF "COMPETENT JURISDICTION."  THE COURTS OF THE
DISTRICT OF COLUMBIA ARE THE ONLY COURTS OF "COMPETENT JURISDICTION" TO
REACH THE MEMBERS OF THE CIVIL SERVICE COMMISSION.  PP. 515-516. 

3.  THE ONLY DEFENDANT BEFORE THE COURT WAS THE REGIONAL DIRECTOR,
AND IT IS OBVIOUS THAT NO RELIEF COULD BE GRANTED AGAINST HIM IN THIS
SUIT.  PP. 515, 516. 

BLACKMAR V. GUERRE, REGIONAL MANAGER, VETERANS' ADMINISTRATION, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

A DISTRICT COURT IN LOUISIANA DISMISSED THIS SUIT FOR WANT OF
JURISDICTION.  THE COURT OF APPEALS AFFIRMED.  190 F.2D 427.  THIS
COURT GRANTED CERTIORARI.  342 U.S. 884.  AFFIRMED, P. 516. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A VETERAN EMPLOYED AS AUTHORIZATION OFFICER IN THE
REGIONAL OFFICE OF THE VETERANS' ADMINISTRATION IN NEW ORLEANS, WAS
REMOVED FROM HIS POSITION.  HE APPEALED UNDER SEC. 14 OF THE VETERANS'
PREFERENCE ACT OF 1944 (5 U.S.C. (SUPP. IV) SEC. 863) TO THE TENTH
REGIONAL OFFICE OF THE UNITED STATES CIVIL SERVICE COMMISSION IN NEW
ORLEANS.  THE REGIONAL BOARD FOUND THAT HIS DISCHARGE WAS NOT WARRANTED
AND RECOMMENDED THAT HE BE REINSTATED TO HIS POSITION.  THE VETERANS'
ADMINISTRATION APPEALED TO THE BOARD OF APPEALS AND REVIEW OF THE CIVIL
SERVICE COMMISSION IN WASHINGTON.  THE COMMISSION REVERSED THE TENTH
REGIONAL BOARD AND SO NOTIFIED PETITIONER. 

PETITIONER THEN INSTITUTED THIS SUIT IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA, NAMING AS DEFENDANTS GUERRE, THE
REGIONAL MANAGER OF THE VETERANS' ADMINISTRATION, WHO HAD FIRST
DISCHARGED HIM, AND THE UNITED STATES CIVIL SERVICE COMMISSION.  GUERRE
WAS SERVED PERSONALLY.  SERVICE ON THE COMMISSION WAS SOUGHT THROUGH
PERSONAL SERVICE ON WEINSTEIN, THE UNITED STATES DISTRICT ATTORNEY, AND
ON LEACH, THE REGIONAL DIRECTOR OF THE TENTH UNITED STATES CIVIL
SERVICE REGION.  BOTH WEINSTEIN AND LEACH RESIDED WITHIN THE EASTERN
DISTRICT OF LOUISIANA.  SERVICE BY REGISTERED MAIL WAS MADE IN THE
DISTRICT OF COLUMBIA UPON THE ATTORNEY GENERAL OF THE UNITED STATES AND
THE UNITED STATES CIVIL SERVICE COMMISSION. 

PETITIONER PRAYED FOR A JUDGMENT OF THE DISTRICT COURT SETTING ASIDE
AND ANNULLING HIS DISCHARGE BY GUERRE AND THE ACTION OF THE CIVIL
SERVICE COMMISSION CONFIRMING GUERRE'S ACTION, AND DECLARING THAT
"PLAINTIFF IS ENTITLED TO AN ORDER FROM THE UNITED STATES CIVIL SERVICE
COMMISSION DIRECTING ...  GUERRE  ...  TO RESTORE PLAINTIFF TO HIS
AFORE-SAID POSITION" WITH BACK PAY.  RESPONDENTS APPEARED AND FILED A
MOTION TO DISMISS BECAUSE OF IMPROPER VENUE AND LACK OF JURISDICTION. 
AFTER THIS MOTION WAS OVERRULED, RESPONDENTS FILED AN ANSWER RAISING,
AMONG OTHER THINGS, THE SAME ISSUES.   ON MOTIONS OF BOTH PARTIES FOR
SUMMARY JUDGMENT, THE COURT SUSTAINED THAT OF RESPONDENTS, HOLDING THAT
IT LACKED JURISDICTION OVER THE PERSONS OF THE COMMISSIONERS, WHO WERE
NOT RESIDENTS OF THE EASTERN DISTRICT OF LOUISIANA AND WHO WERE
INDISPENSABLE PARTIES.  THE COURT OF APPEALS AFFIRMED ON THE GROUND
THAT THERE WAS NO VENUE IN THE DISTRICT COURT, WITHOUT PREJUDICE TO
FURTHER PROCEEDINGS BY PETITIONER IN THE PROPER VENUE.  190 F.2D 427. 
WE GRANTED CERTIORARI.  342 U.S. 884. 

WE DO NOT REACH THE MERITS IN THIS PROCEEDING.  WE ARE MET AT THE
THRESHOLD WITH A CHALLENGE BY MOTION AND ANSWER AS TO THE VENUE AND
JURISDICTION OF THE DISTRICT COURT OF LOUISIANA TO ENTERTAIN THIS
ACTION.  THESE DEFENSES AS TO LAW AND FACT WERE PROPERLY PRESENTED IN
THIS MANNER.  FED. RULES CIV. PROC., 12(B). 

IF THE COMMISSION COULD BE SUED EO NOMINE, WE WOULD BE CONFRONTED
WITH THE QUESTION OF WHETHER SERVICE AS HERE MADE WOULD BE SUFFICIENT
TO BRING THE COMMISSION INTO COURT; BUT CONGRESS HAS NOT CONSTITUTED
THE COMMISSION A BODY CORPORATE OR AUTHORIZED IT TO BE SUED EO NOMINE. 

IT IS SUGGESTED THAT SUCH AUTHORIZATION IS GIVEN BY THE HATCH ACT. 
(FN1)  NOT SO.  WHILE SEC. 118KC) OF 5 U.S.C. DOES PROVIDE THAT A STATE
OFFICER OR EMPLOYEE FOUND TO HAVE VIOLATED SEC 118KB) MAY OBTAIN REVIEW
IN THE DISTRICT COURT OF THE DISTRICT IN WHICH HE RESIDES, THIS IS NOT
AUTHORIZATION FOR A NEW PROCEEDING AGAINST THE CIVIL SERVICE
COMMISSION.  IT IS AUTHORIZATION ONLY FOR A TRANSFER OF THE CASE FROM
THE COMMISSION TO THE DISTRICT COURT - A CONTINUATION OF THE SAME
PROCEEDING BEFORE ANOTHER TRIBUNAL.  REVIEW IS INSTITUTED BY PETITION
AND NOTICE TO THE COMMISSION, WHICH IS DIRECTED BY THE ACT TO FILE A
TRANSCRIPT OF THE RECORD IN THE CASE IN THE DISTRICT COURT.  THE COURT
REVIEWS THE CASE ON THE OLD RECORD, WITH THE RIGHT TO HEAR FURTHER
EVIDENCE.  EVEN THIS LIMITED REVIEW IS NOT AFFORDED FEDERAL EMPLOYEES
FOUND TO HAVE VIOLATED SEC. 118(I).  THUS, BY NO STRETCH OF THE
IMAGINATION CAN THE LIMITED REVIEW GRANTED STATE EMPLOYEES BY THE HATCH
ACT BE DEEMED AN AUTHORIZATION BY CONGRESS FOR THE PRESENT SUIT AGAINST
THE COMMISSION.  WHEN CONGRESS AUTHORIZES ONE OF ITS AGENCIES TO BE
SUED EO NOMINE, IT DOES SO IN EXPLICIT LANGUAGE, OR IMPLIEDLY BECAUSE
THE AGENCY IS THE OFFSPRING OF SUCH A SUABLE ENTITY.  SEE KEIFER &
KEIFER V. R.F.C., 306 U.S. 381, 390. 

SINCE THE CIVIL SERVICE COMMISSION IS NOT A CORPORATE ENTITY WHICH
CONGRESS HAS AUTHORIZED TO BE SUED, A SUIT INVOLVING THE ACTION OF THE
COMMISSION GENERALLY MUST BE BROUGHT AGAINST THE INDIVIDUAL
COMMISSIONERS AS MEMBERS OF THE UNITED STATES CIVIL SERVICE
COMMISSION.  NO SUCH SUIT WAS BROUGHT HERE, AND NO SERVICE WAS HAD UPON
THE INDIVIDUALS COMPRISING THE CIVIL SERVICE COMMISSION.  THEREFORE,
NEITHER THE INDIVIDUALS COMPRISING THE CIVIL SERVICE COMMISSION NOR THE
COMMISSION AS A SUABLE ENTITY WAS BEFORE THE DISTRICT COURT. 

WE DO NOT HAVE A QUESTION OF VENUE AS TO DEFENDANTS UNTIL WE HAVE
DEFENDANTS BEFORE THE COURT.  THE ONLY DEFENDANT BEFORE THE COURT WAS
GUERRE.  THE VENUE AS TO HIM WAS ALL RIGHT, BUT IT IS OBVIOUS NO RELIEF
CAN BE GRANTED AGAINST HIM. 

IT IS FURTHER SUGGESTED THAT JUDICIAL REVIEW IS AUTHORIZED BY THE
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. SEC. 1001 ET SEQ. CERTAINLY
THERE IS NO SPECIFIC AUTHORIZATION IN THAT ACT FOR SUIT AGAINST THE
COMMISSION AS AN ENTITY.  STILL LESS IS THE ACT TO BE DEEMED AN IMPLIED
WAIVER OF ALL GOVERNMENTAL IMMUNITY FROM SUIT.  IF THE COMMISSION'S
ACTION IS REVIEWABLE UNDER SEC. 1009, (FN2) IT IS REVIEWABLE ONLY IN A
COURT OF "COMPETENT JURISDICTION."  ASSUMING, WITHOUT DECIDING, THAT
COMMISSION ACTION IS REVIEWABLE BY COURT ACTION UNDER SEC. 1009, IT
MUST FOLLOW THAT REVIEW MUST BE IN THAT DISTRICT WHERE THE
COMMISSIONERS CAN BE SERVED.  SINCE WE HAVE HELD THAT THE CIVIL SERVICE
COMMISSION IS NOT AN ENTITY THAT MAY BE SUED ANYWHERE IT MAY BE
FUNCTIONING BUT ONLY THE COMMISSIONERS MAY BE SUED WHERE THEY CAN BE
SERVED, SEC. 1009 DOES NOT AID PETITIONER IN AN ACTION BROUGHT IN
LOUISIANA.  THE COURTS OF THE DISTRICT OF COLUMBIA ARE THE ONLY COURTS
OF "COMPETENT JURISDICTION" TO REACH THE MEMBERS OF THE CIVIL SERVICE
COMMISSION. 

SINCE THE MEMBERS OF THE CIVIL SERVICE COMMISSION WERE NEVER SERVED,
AND COULD NOT BE SERVED, IN THE DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA, AND THE CIVIL SERVICE COMMISSION IS NOT A CORPORATE
ENTITY, IT FOLLOWS THAT THE ONLY DEFENDANT BEFORE THE COURT WAS GUERRE,
AND, AS WE HAVE POINTED OUT, NO RELIEF COULD POSSIBLY BE GRANTED
AGAINST HIM IN THESE PROCEEDINGS, THE JUDGMENT IS AFFIRMED. 

FN1  53 STAT. 1147, AS AMENDED, 54 STAT. 767, SEC. 12(C), 5 U.S.C.
(SUPP. IV) SEC. 118KC). 

FN2  "SEC.  1009.  JUDICIAL REVIEW OF AGENCY ACTION. 

"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 PROCEEDINGS. 

"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  ...  IN ANY COURT OF COMPETENT
JURISDICTION  ...  ." 

MR. JUSTICE BLACK DISSENTS. 
..END :







GRAY V. BOARD OF TRUSTEES OF THE UNIVERSITY OF TENNESSEE 342 U.S. 517 


NO. 120.  ARGUED JANUARY 9-10, 1952.  - DECIDED MARCH 3, 1952.  - 100 F.
SUPP. 113; 97 F. SUPP. 463, JUDGMENTS VACATED WITH DIRECTIONS TO
DISMISS THE ACTION ON THE GROUND THAT THE CAUSE IS MOOT. 


THIS SUIT BY APPELLANTS TO ENJOIN APPELLEES FROM ALLEGED VIOLATIONS OF
THE FOURTEENTH AMENDMENT IN REFUSING TO ADMIT NEGROES TO THE UNIVERSITY
OF TENNESSEE MUST BE DISMISSED AS MOOT, SINCE APPELLANTS' REQUESTS FOR
ADMISSION TO THE UNIVERSITY HAVE BEEN GRANTED AND THERE IS NO
SUGGESTION THAT ANY PERSON "SIMILARLY SITUATED" WILL NOT BE AFFORDED
SIMILAR TREATMENT.  PP. 517-518. 

GRAY ET AL. V. BOARD OF TRUSTEES OF THE UNIVERSITY OF TENNESSEE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF TENNESSEE.* 

*TOGETHER WITH NO. 159, MISC., EX PARTE GRAY ET AL., ON PETITION FOR
WRIT OF MANDAMUS. 

PER CURIAM. 

APPELLANTS, ON BEHALF OF THEMSELVES AND OTHER NEGROES "SIMILARLY
SITUATED," SUED IN THE DISTRICT COURT TO ENJOIN APPELLEES FROM ALLEGED
VIOLATIONS OF THE FOURTEENTH AMENDMENT IN REFUSING TO ADMIT NEGROES TO
THE UNIVERSITY OF TENNESSEE.  A THREE-JUDGE COURT, CONVENED AT
APPELLANTS' REQUEST, HELD THAT THIS CASE WAS NOT WITHIN THE
JURISDICTION OF A THREE-JUDGE COURT UNDER 28 U.S.C. (SUPP. IV) SEC.
2281 AND ORDERED THAT THE CASE PROCEED BEFORE A SINGLE DISTRICT JUDGE. 
100 F. SUPP. 113.  THE SINGLE JUDGE HELD THAT APPELLANTS WERE ENTITLED
TO RELIEF BUT DID NOT ENTER AN ORDER.  97 F. SUPP. 463. 

APPELLANTS CONTEND THAT ONLY A COURT OF THREE JUDGES HAS JURISDICTION
OVER THE CAUSE.  NO. 120 IS AN APPEAL FROM THE ORDER DISSOLVING THE
THREE-JUDGE COURT BROUGHT DIRECTLY TO THIS COURT UNDER 28 U.S.C. (SUPP.
IV) SEC. 1253.  WE SET THE APPEAL DOWN FOR ARGUMENT, POSTPONING
CONSIDERATION OF JURISDICTIONAL QUESTIONS.  IN NO. 159 MISC.,
APPELLANTS ASKED, IN THE ALTERNATIVE, THAT WE ISSUE A WRIT OF MANDAMUS
TO VACATE THE ORDER DISSOLVING THE THREE-JUDGE COURT.  WE ISSUED A RULE
TO SHOW CAUSE WHY THE PETITION FOR MANDAMUS SHOULD NOT BE GRANTED, 342
U.S. 846, AND, UPON THE FILING OF A RESPONSE TO THE RULE, SET THE
PETITION DOWN FOR ARGUMENT WITH THE APPEAL. 

AT THE ARGUMENT, COUNSEL FOR APPELLEES STATED THAT APPELLANTS WOULD
BE ADMITTED TO THE UNIVERSITY OF TENNESSEE AS REQUESTED.  THEREAFTER,
APPELLANTS FILED A MOTION STATING THAT APPELLANT GRAY HAS BEEN ADMITTED
TO THE UNIVERSITY AND THAT THE OTHER APPELLANTS WERE, BECAUSE OF
CHANGED CIRCUMSTANCES, UNABLE TO AVAIL THEMSELVES OF THE OPPORTUNITY AT
PRESENT.  APPELLANTS MOVED THIS COURT TO VACATE THE ORDER DISSOLVING
THE THREE-JUDGE COURT AND TO REMAND THE CASE TO THAT COURT FOR FURTHER
PROCEEDINGS.  SINCE APPELLANTS' REQUESTS FOR ADMISSION TO THE
UNIVERSITY OF TENNESSEE HAVE BEEN GRANTED AND SINCE THERE IS NO
SUGGESTION THAT ANY PERSON "SIMILARLY SITUATED" WILL NOT BE AFFORDED
SIMILAR TREATMENT, APPELLANTS' MOTION IS DENIED AND THE JUDGMENTS BELOW
ARE VACATED AND THE DISTRICT COURT IS DIRECTED TO DISMISS THE ACTION
UPON THE GROUND THAT THE CAUSE IS MOOT.  IT IS SO ORDERED. 
..END :
















HUGHES V. UNITED STATES 342 U.S. 353 


NO. 86.  ARGUED JANUARY 7, 1952 - DECIDED FEBRUARY 4, 1952 - REVERSED. 


A SHERMAN ACT CONSENT DECREE PROVIDED FOR DIVORCEMENT OF A MOTION
PICTURE COMPANY'S PRODUCTION-DISTRIBUTION ASSETS FROM ITS THEATER
ASSETS.  TWO NEW COMPANIES WERE TO BE FORMED; THEIR STOCK WAS TO BE
DISTRIBUTED TO STOCKHOLDERS OF THE OLD COMPANY; AND THE LATTER WAS TO
BE DISSOLVED.  RELATIVE TO APPELLANT, WHO OWNED 24% OF THE STOCK OF THE
OLD COMPANY, THE DECREE PROVIDED THAT HE MIGHT "EITHER" SELL HIS STOCK
IN ONE OR THE OTHER OF THE NEW COMPANIES "OR" DEPOSIT SUCH STOCK WITH A
COURT-DESIGNATED TRUSTEE UNDER A VOTING TRUST AGREEMENT TO REMAIN IN
FORCE UNTIL APPELLANT "SHALL HAVE SOLD" HIS STOCK IN ONE OF THE
COMPANIES.  APPELLANT CHOSE NOT TO SELL ANY STOCK, AND THE DISTRICT
COURT APPOINTED A TRUSTEE AND APPROVED THE AGREED TERMS OF A VOTING
TRUST.  WITHOUT EVIDENCE OR FINDINGS OF FACT, AND OVER APPELLANT'S
PROTESTS, THE DISTRICT COURT LATER AMENDED ITS ORDER APPOINTING THE
TRUSTEE AND ORDERED THAT THE TRUSTEED STOCK BE SOLD.  HELD: 

1.  THE PROVISION OF THE DECREE DID NOT REQUIRE THAT APPELLANT SELL
HIS STOCK WITHIN A REASONABLE TIME.  PP. 356-357. 

2.  UNDER THE POWERS RESERVED IN THE CONSENT DECREE, THE DISTRICT
COURT CAN REQUIRE THE SALE OF APPELLANT'S STOCK; BUT THAT WOULD BE A
SUBSTANTIAL MODIFICATION OF THE CONSENT DECREE, WHICH CANNOT BE MADE
WITHOUT A HEARING THAT INCLUDES EVIDENCE AND A JUDICIAL DETERMINATION
BASED UPON IT.  PP. 357-358. 

HUGHES V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

FROM AN ORDER OF A THREE-JUDGE DISTRICT COURT IN A SHERMAN ACT
PROCEEDING, COMPELLING APPELLANT TO SELL CERTAIN SHARES OF STOCK, HE
APPEALED DIRECTLY TO THIS COURT UNDER 15 U.S.C.  SEC. 29.  REVERSED, P.
358. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
DOUGLAS. 

A THREE-JUDGE DISTRICT COURT HAS CONSTRUED CERTAIN PROVISIONS OF A
SHERMAN ACT CONSENT DECREE AS COMPELLING THE SALE OF CERTAIN MOVING
PICTURE STOCKS OWNED BY THE APPELLANT HUGHES.  THIS CASE IS PROPERLY
HERE ON APPEAL FROM AN ORDER ENTERED TO COMPEL THE SALE.  15 U.S.C.
(SUPP. IV) SEC. 29. 

THESE ANTI-TRUST PROCEEDINGS WERE ORIGINALLY BROUGHT BY THE UNITED
STATES AGAINST RADIO-KEITH-ORPHEUM CORPORATION AND OTHER MOVING PICTURE
PRODUCERS, DISTRIBUTORS, AND EXHIBITORS.  FROM THE DISTRICT COURT'S
JUDGMENT IN THE CASE BOTH THE GOVERNMENT AND DEFENDANTS APPEALED.  WE
AFFIRMED IN PART AND REVERSED IN PART.  UNITED STATES V. PARAMOUNT
PICTURES, INC., 334 U.S. 131.  WE REMANDED THE CASE TO THE DISTRICT
COURT LEAVING IT FREE TO CONSIDER WHETHER IT WAS NECESSARY TO REQUIRE
THE PRODUCTION AND DISTRIBUTION COMPANIES TO DIVEST THEMSELVES OF ALL
OWNERSHIP AND INTEREST IN THE BUSINESS OF EXHIBITING PICTURES. 
THEREAFTER A CONSENT DECREE WAS ENTERED CONTAINING DETAILED PROVISIONS
FOR COMPLETE DIVORCEMENT OF R.K.O.'S PRODUCTION-DISTRIBUTION ASSETS
FROM ITS THEATER ASSETS.  TO ACCOMPLISH THIS, R.K.O. WAS TO FORM TWO
NEW HOLDING COMPANIES:  ONE, THE "NEW PICTURE COMPANY," WAS TO TAKE
OVER ALL R.K.O. SUBSIDIARIES ENGAGED IN PRODUCTION AND DISTRIBUTION;
THE OTHER, THE "NEW THEATER COMPANY," WAS TO OWN AND CONTROL R.K.O.
SUBSIDIARIES WHICH OPERATED THEATERS.  UPON FORMATION OF THE NEW
COMPANIES, R.K.O. WAS TO BE DISSOLVED.  FORMER STOCKHOLDERS WERE TO
BECOME THE OWNERS OF ALL THE CAPITAL STOCK OF THE TWO NEW COMPANIES. 
A FACTOR CONSIDERED IN CONNECTION WITH THIS DIVORCEMENT WAS THAT HOWARD
R. HUGHES, APPELLANT HERE, OWNED 24% OF THE COMMON STOCK OF R.K.O.  NO
OTHER PERSON OR CORPORATION OWNED AS MUCH AS 1%.  HE AND GOVERNMENT
REPRESENTATIVES AGREED ON TERMS TO MEET THIS SITUATION.  THEIR
AGREEMENT WAS EMBODIED IN THE CONSENT DECREE, BECOMING SECTION V. THIS
CONTROVERSY.  IT PROVIDES THAT HUGHES MAY "EITHER" (A) SELL HIS STOCK
IN ONE OR THE OTHER OF THE TWO NEWLY FORMED COMPANIES, "OR" (B) DEPOSIT
SUCH STOCK WITH A COURT-DESIGNATED TRUSTEE UNDER A VOTING TRUST
AGREEMENT TO REMAIN IN FORCE UNTIL HUGHES SHALL HAVE SOLD HIS STOCK IN
ONE OF THE COMPANIES.  HUGHES CHOSE NOT TO SELL ANY STOCK, AND HE AND
THE UNITED STATES AGREED ON A TRUSTEE AND THE TERMS OF A VOTING TRUST,
WHICH AGREEMENT WAS APPROVED BY A COURT ORDER.  LATER, BY MOTION THE
UNITED STATES SOUGHT A COURT ORDER FORCING THE TRUSTEE TO SELL HUGHES'
STOCK.  WITHOUT EVIDENCE OR FINDINGS OF FACT, AND OVER HUGHES'
PROTESTS, THE DISTRICT COURT AMENDED ITS ORDER APPOINTING A TRUSTEE BY
PROVIDING THAT "IF THE STOCK TRUSTEED SHALL NOT HAVE BEEN DISPOSED OF
BY HOWARD R. HUGHES BY FEBRUARY 20TH, 1953, THE TRUSTEE SHALL DISPOSE
OF SUCH STOCK WITHIN TWO YEARS THEREAFTER."  APPELLANT HUGHES URGES
THAT IT WAS ERROR TO ORDER HIS STOCK SOLD IN SO SUMMARY A MANNER. 

*V. HOWARD R. HUGHES REPRESENTS THAT HE NOW OWNS APPROXIMATELY 24
PERCENT OF THE COMMON STOCK OF RADIO-KEITH-ORPHEUM CORPORATION.  WITHIN
A PERIOD OF ONE YEAR FROM THE DATE HEREOF, HOWARD R. HUGHES SHALL
EITHER: 

"A.  DISPOSE OF HIS HOLDINGS OF THE STOCK OF (1) THE NEW PICTURE
COMPANY, OR (2) THE NEW THEATER COMPANY, AS HE MAY ELECT, TO A
PURCHASER OR PURCHASERS WHO IS OR ARE NOT A DEFENDANT HEREIN OR OWNED
OR CONTROLLED BY OR AFFILIATED WITH A DEFENDANT IN THIS CAUSE; OR 

"B.  DEPOSIT WITH A TRUSTEE DESIGNATED BY THE COURT ALL OF HIS SHARES
OF THE NEW PICTURE COMPANY OR THE NEW THEATER COMPANY, AS HE MAY ELECT,
UNDER A VOTING TRUST AGREEMENT WHEREBY THE TRUSTEE SHALL POSSESS AND BE
ENTITLED TO EXERCISE ALL THE VOTING RIGHTS OF SUCH SHARES, INCLUDING
THE RIGHT TO EXECUTE PROXIES AND CONSENTS WITH RESPECT THERETO.  SUCH
VOTING TRUST AGREEMENT SHALL THEREAFTER REMAIN IN FORCE UNTIL HOWARD R.
HUGHES SHALL HAVE SOLD HIS HOLDINGS OF STOCK OF THE NEW PICTURE COMPANY
OR THE NEW THEATER COMPANY TO A PURCHASER OR PURCHASERS WHO IS OR ARE
NOT A DEFENDANT HEREIN OR OWNED OR CONTROLLED BY OR AFFILIATED WITH A
DEFENDANT HEREIN, AND UPON SUCH SALE AND TRANSFER SUCH VOTING TRUST
AGREEMENT SHALL AUTOMATICALLY TERMINATE.  SUCH TRUST SHALL BE UPON SUCH
OTHER TERMS OR CONDITIONS, INCLUDING COMPENSATION TO THE TRUSTEE, AS
SHALL BE PRESCRIBED BY THE COURT.  DURING THE PERIOD OF SUCH VOTING
TRUST, HOWARD R. HUGHES SHALL BE ENTITLED TO RECEIVE ALL DIVIDENDS AND
OTHER DISTRIBUTIONS MADE ON ACCOUNT OF THE TRUSTEED SHARES, AND
PROCEEDS FROM THE SALE THEREOF. 

"FOR THE PURPOSE OF EVIDENCING HIS CONSENT TO BE BOUND BY THE TERMS
OF SECTION V OF THIS DECREE, HOWARD R. HUGHES INDIVIDUALLY HAS
CONSENTED TO ITS ENTRY AND IT SHALL BE BINDING UPON HIS AGENTS AND
EMPLOYEES." 

FIRST.  THE GOVERNMENT ARGUES THAT SECTION V SHOULD BE READ AS
COMPELLING HUGHES TO SELL HIS STOCK WITHIN A REASONABLE TIME.  WE HOLD
THAT THE LANGUAGE OF THE SECTION IMPOSES NO SUCH REQUIREMENT.  A
READING OF THE EITHER/OR WORDING WOULD MAKE MOST PERSONS BELIEVE THAT
HUGHES WAS TO HAVE A CHOICE OF TWO DIFFERENT ALTERNATIVES.  HUGHES
WOULD HAVE NO CHOICE IF THE FIRST "ALTERNATIVE" WAS TO SELL THE STOCK
AND THE SECOND "ALTERNATIVE" WAS ALSO TO SELL THE STOCK.  MOREOVER,
PLACE IT IN A VOTING TRUST, THIS TRUST SHOULD REMAIN IN FORCE "UNTIL
HOWARD R. HUGHES SHALL HAVE SOLD" HIS STOCK.  THIS WOULD ORDINARILY
MEAN THAT HUGHES, NOT THE COURT, COULD DECIDE WHETHER HIS STOCK SHOULD
BE SOLD.  NOR CAN A DIFFERENT INFERENCE BE DRAWN FROM THE LANGUAGE
AUTHORIZING THE COURT TO PROVIDE THE TRUST'S GENERAL "TERMS OR
CONDITIONS, INCLUDING COMPENSATION TO THE TRUSTEE."  THIS LANGUAGE
CANNOT SUPPORT AN INFERENCE THAT THE COURT WAS EMPOWERED TO DEPRIVE
HUGHES OF EITHER OF HIS EXPRESSLY GRANTED ALTERNATIVES. 

ARGUING ON A BROADER FRONT THAN THE MERE LANGUAGE OF SECTION V, THE
GOVERNMENT URGES: THAT SECTION V MUST BE INTERPRETED SO AS TO ACHIEVE
THE PURPOSES OF THE ENTIRE R.K.O.  CONSENT DECREE; THAT THE BASIC
PURPOSE OF THAT DECREE WAS DIVORCEMENT OF PRODUCTION-DISTRIBUTION
COMPANIES FROM THEATER EXHIBITION COMPANIES; AND THAT HUGHES CANNOT
CONSISTENTLY WITH THIS PURPOSE BE LEFT WITH A 24% INTEREST IN BOTH
TYPES OF COMPANIES.  IT MAY BE TRUE AS THE GOVERNMENT NOW CONTENDS THAT
HUGHES' LARGE BLOCK OF OWNERSHIP IN BOTH TYPES OF COMPANIES ENDANGERS
THE INDEPENDENCE OF EACH.  EVIDENCE MIGHT SHOW THAT A SALE BY HUGHES IS
INDISPENSABLE IF COMPETITION IS TO BE PRESERVED.  HOWEVER, IN SECTION V
THE PARTIES AND THE DISTRICT COURT PROVIDED THEIR OWN DETAILED PLAN TO
NEUTRALIZE THE EVILS FROM SUCH OWNERSHIP.  WHATEVER JUSTIFICATION THERE
MAY BE NOW OR HEREAFTER FOR NEW TERMS THAT REQUIRE A SALE OF HUGHES'
STOCK, WE THINK THERE IS NO FAIR SUPPORT FOR READING THAT REQUIREMENT
INTO THE LANGUAGE OF SECTION V. THE DISTRICT COURT'S ORDER CANNOT BE
SUPPORTED BY RELIANCE ON SUCH AN INTERPRETATION.  CONSEQUENTLY THE
COURT'S COMMAND TO SELL THE STOCK EFFECTED A SUBSTANTIAL MODIFICATION
OF THE ORIGINAL DECREE. 

SECOND.  THE GOVERNMENT FINDS SUPPORT FOR THE SUBSTANTIAL CHANGE IN
THE DECREE BY REFERENCE TO (1) PROVISIONS IN THE DECREE RESERVING
JURISDICTION TO AMEND, AND (2) THE INHERENT EQUITY POWERS OF THE
COURT.  WE ENTERTAIN NO DOUBT CONCERNING THE DISTRICT COURT'S POWER TO
REQUIRE SALE OF HUGHES' STOCK AFTER A PROPER HEARING.  WHEN THIS CASE
WAS FORMERLY HERE ON OTHER PHASES, 334 U.S. 131, WE HAD OCCASION TO
POINT OUT THE DISTRICT COURT'S POWER TO REQUIRE SOME COMPANIES TO
DIVEST THEMSELVES OF OWNERSHIP OF OTHER COMPANIES WHERE NECESSARY TO
PRESERVE COMPETITION AND TO PREVENT MONOPOLY.  THE GUIDING PRINCIPLES
THERE SET OUT WOULD ALSO JUSTIFY COMPULSORY DIVESTMENT OF STOCKS BY AN
INDIVIDUAL.  BUT THERE HAS BEEN NO ADEQUATE HEARING OF THIS ISSUE AS TO
HUGHES.  NEITHER WHEN THE PRESENT ORDER WAS CONSIDERED NOR WHEN THE
ORIGINAL DECREE WAS ENTERED WERE ANY FINDINGS OF FACT MADE TO SUPPORT
AN ORDER OF COMPULSORY SALE OF HUGHES' STOCK.  AS PREVIOUSLY POINTED
OUT THE CONSENT OF HUGHES DID NOT INCLUDE CONSENT TO MAKE HIM SELL.  AT
EVERY STAGE HUGHES OBJECTED TO THE ORDER FORCING SALE OF HIS STOCK
WITHOUT A HEARING THAT INCLUDED EVIDENCE AND A JUDICIAL DETERMINATION
BASED ON IT. 

IN THESE CIRCUMSTANCES WE HOLD THAT IT WAS ERROR TO ENTER AN ORDER
FORCING HUGHES TO SELL HIS STOCK.  REVERSED. 

MR. JUSTICE JACKSON AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :





DICE V. AKRON, CANTON & YOUNGSTOWN RAILROAD CO. 342 U.S. 359 


NO. 374.  ARGUED DECEMBER 3-4, 1951 - DECIDED FEBRUARY 4, 1952 - 155
OHIO ST. 185, 98 N.E.2D 301, REVERSED. 


1.  IN AN ACTION IN A STATE COURT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, THE QUESTION OF THE VALIDITY OF A RELEASE GRANTED TO THE
CARRIER BY THE INJURED EMPLOYEE IS A FEDERAL QUESTION AND IS TO BE
DETERMINED BY FEDERAL RATHER THAN STATE LAW.  PP. 361-362. 

2.  A RELEASE OF RIGHTS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IS
VOID WHEN THE EMPLOYEE IS INDUCED TO SIGN IT BY DELIBERATELY FALSE AND
MATERIAL STATEMENTS OF THE CARRIER'S AUTHORIZED REPRESENTATIVES, MADE
TO DECEIVE THE EMPLOYEE AS TO THE CONTENTS OF THE RELEASE.  P. 362. 

3.  IN AN ACTION BROUGHT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
IN AN OHIO STATE COURT, WHICH PROVIDES JURY TRIALS FOR CASES ARISING
UNDER THE ACT, IT WAS ERROR FOR THE JUDGE TO TAKE FROM THE JURY THE
DETERMINATION OF THE FACTUAL QUESTIONS AS TO WHETHER A RELEASE HAD BEEN
FRAUDULENTLY OBTAINED.  PP. 362-364. 

DICE V. AKRON, CANTON & YOUNGSTOWN RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

IN A STATE COURT ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT,
THE STATE SUPREME COURT SUSTAINED A JUDGMENT FOR THE DEFENDANT
NOTWITHSTANDING A VERDICT OF THE JURY IN FAVOR OF THE PLAINTIFF.  155
OHIO ST. 185, 98 N.E.2D 301.  THIS COURT GRANTED CERTIORARI.  342 U.S.
811.  REVERSED AND REMANDED, P. 364. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
DOUGLAS. 

PETITIONER, A RAILROAD FIREMAN, WAS SERIOUSLY INJURED WHEN AN ENGINE
IN WHICH HE WAS RIDING JUMPED THE TRACK.  ALLEGING THAT HIS INJURIES
WERE DUE TO RESPONDENT'S NEGLIGENCE, HE BROUGHT THIS ACTION FOR DAMAGES
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT.  65, 45 U.S.C.
SEC. 51 ET SEQ., IN AN OHIO COURT OF COMMON PLEAS.  RESPONDENT'S
DEFENSES WERE (1) A DENIAL OF NEGLIGENCE AND (2) A WRITTEN DOCUMENT
SIGNED BY PETITIONER PURPORTING TO RELEASE RESPONDENT IN FULL FOR
$924.63.  PETITIONER ADMITTED THAT HE HAD SIGNED SEVERAL RECEIPTS FOR
PAYMENTS MADE HIM IN CONNECTION WITH HIS INJURIES BUT DENIED THAT HE
HAD MADE A FULL AND COMPLETE SETTLEMENT OF ALL HIS CLAIMS.  HE ALLEGED
THAT THE PURPORTED RELEASE WAS VOID BECAUSE HE HAD SIGNED IT RELYING ON
RESPONDENT'S DELIBERATELY FALSE STATEMENT THAT THE DOCUMENT WAS NOTHING
MORE THAN A MERE RECEIPT FOR BACK WAGES. 

AFTER BOTH PARTIES HAD INTRODUCED CONSIDERABLE EVIDENCE THE JURY
FOUND IN FAVOR OF PETITIONER AND AWARDED HIM A $25,000 VERDICT.  THE
TRIAL JUDGE LATER ENTERED JUDGMENT NOTWITHSTANDING THE VERDICT.  IN
DOING SO HE REAPPRAISED THE EVIDENCE AS TO FRAUD, FOUND THAT PETITIONER
HAD BEEN "GUILTY OF SUPINE NEGLIGENCE" IN FAILING TO READ THE RELEASE,
AND ACCORDINGLY HELD THAT THE FACTS DID NOT "SUSTAIN EITHER IN LAW OR
EQUITY THE ALLEGATIONS OF FRAUD BY CLEAR, UNEQUIVOCAL AND CONVINCING
EVIDENCE."*  THIS JUDGMENT NOTWITHSTANDING THE VERDICT WAS REVERSED BY
THE COURT OF APPEALS OF SUMMIT COUNTY, OHIO, ON THE GROUND THAT UNDER
FEDERAL LAW, WHICH CONTROLLED, THE JURY'S VERDICT MUST STAND BECAUSE
THERE WAS AMPLE EVIDENCE TO SUPPORT ITS FINDING OF FRAUD.  THE OHIO
SUPREME COURT, ONE JUDGE DISSENTING, REVERSED THE COURT OF APPEALS'
JUDGMENT AND SUSTAINED THE TRIAL COURT'S ACTION, HOLDING THAT:  (1)
OHIO, NOT FEDERAL, LAW GOVERNED; (2) UNDER THAT LAW PETITIONER, A MAN
OF ORDINARY INTELLIGENCE WHO COULD READ, WAS BOUND BY THE RELEASE EVEN
THOUGH HE HAD BEEN INDUCED TO SIGN IT BY THE DELIBERATELY FALSE
STATEMENT THAT IT WAS ONLY A RECEIPT FOR BACK WAGES; AND (3) UNDER
CONTROLLING OHIO LAW FACTUAL ISSUES AS TO FRAUD IN THE EXECUTION OF
THIS RELEASE WERE PROPERLY DECIDED BY THE JUDGE RATHER THAN BY THE
JURY.  155 OHIO ST. 185, 98 N.E.2D 301.  WE GRANTED CERTIORARI BECAUSE
THE DECISION OF THE SUPREME COURT OF OHIO APPEARED TO DEVIATE FROM
PREVIOUS DECISIONS OF THIS COURT THAT FEDERAL LAW GOVERNS CASES ARISING
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  342 U.S. 811. 

*THE TRIAL JUDGE HAD CHARGED THE JURY THAT PETITIONER'S CLAIM OF
FRAUD MUST BE SUSTAINED "BY CLEAR AND CONVINCING EVIDENCE," BUT SINCE
THE VERDICT WAS FOR PETITIONER, HE DOES NOT HERE CHALLENGE THIS CHARGE
AS IMPOSING TOO HEAVY A BURDEN UNDER CONTROLLING FEDERAL LAW. 

FIRST.  WE AGREE WITH THE COURT OF APPEALS OF SUMMIT COUNTY, OHIO,
AND THE DISSENTING JUDGE IN THE OHIO SUPREME COURT AND HOLD THAT
VALIDITY OF RELEASES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT RAISES
A FEDERAL QUESTION TO BE DETERMINED BY FEDERAL RATHER THAN STATE LAW. 
CONGRESS IN SEC. 1 OF THE ACT GRANTED PETITIONER A RIGHT TO RECOVER
AGAINST HIS EMPLOYER FOR DAMAGES NEGLIGENTLY INFLICTED.  STATE LAWS ARE
NOT CONTROLLING IN DETERMINING WHAT THE INCIDENTS OF THIS FEDERAL RIGHT
SHALL BE.  CHESAPEAKE & OHIO R. CO. V. KUHN, 284 U.S. 44; RICKETTS V.
PENNSYLVANIA R. CO., 153 F.2D 757, 759.  MANIFESTLY THE FEDERAL RIGHTS
AFFORDING RELIEF TO INJURED RAILROAD EMPLOYEES UNDER A FEDERALLY
DECLARED STANDARD COULD BE DEFEATED IF STATES WERE PERMITTED TO HAVE
THE FINAL SAY AS TO WHAT DEFENSES COULD AND COULD NOT BE PROPERLY
INTERPOSED TO SUITS UNDER THE ACT.  MOREOVER, ONLY IF FEDERAL LAW
CONTROLS CAN THE FEDERAL ACT BE GIVEN THAT UNIFORM APPLICATION
THROUGHOUT THE COUNTRY ESSENTIAL TO EFFECTUATE ITS PURPOSES.  SEE
GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239, 244, AND CASES THERE
CITED.  RELEASES AND OTHER DEVICES DESIGNED TO LIQUIDATE OR DEFEAT
INJURED EMPLOYEES' CLAIMS PLAY AN IMPORTANT PART IN THE FEDERAL ACT'S
ADMINISTRATION.  COMPARE DUNCAN V. THOMPSON, 315 U.S. 1.  THEIR
VALIDITY IS BUT ONE OF THE MANY INTERRELATED QUESTIONS THAT MUST
CONSTANTLY BE DETERMINED IN THESE CASES ACCORDING TO A UNIFORM FEDERAL
LAW. 

SECOND.  IN EFFECT THE SUPREME COURT OF OHIO HELD THAT AN EMPLOYEE
TRUSTS HIS EMPLOYER AT HIS PERIL, AND THAT THE NEGLIGENCE OF AN
INNOCENT WORKER IS SUFFICIENT TO ENABLE HIS EMPLOYER TO BENEFIT BY ITS
DELIBERATE FRAUD.  APPLICATION OF SO HARSH A RULE TO DEFEAT A RAILROAD
EMPLOYEE'S CLAIM IS WHOLLY INCONGRUOUS WITH THE GENERAL POLICY OF THE
ACT TO GIVE RAILROAD EMPLOYEES A RIGHT TO RECOVER JUST COMPENSATION FOR
INJURIES NEGLIGENTLY INFLICTED BY THEIR EMPLOYERS.  AND THIS OHIO RULE
IS OUT OF HARMONY WITH MODERN JUDICIAL AND LEGISLATIVE PRACTICE TO
RELIEVE INJURED PERSONS FROM THE EFFECT OF RELEASES FRAUDULENTLY
OBTAINED.  SEE CASES COLLECTED IN NOTE, 164 A.L.R. 402-415.  SEE ALSO
UNION PACIFIC R. CO. V. HARRIS, 158 U.S. 326; CALLEN V. PENNSYLVANIA R.
CO., 332 U.S. 625; CHESAPEAKE & O.R. CO. V. HOWARD, 14 APP.  D.C. 262,
AFF'D, 178 U.S. 153; GRAHAM V. ATCHISON T.&S.F.R. CO., 176 F.2D 819. 
WE HOLD THAT THE CORRECT FEDERAL RULE IS THAT ANNOUNCED BY THE COURT OF
APPEALS OF SUMMIT COUNTY, OHIO, AND THE DISSENTING JUDGE IN THE OHIO
SUPREME COURT - A RELEASE OF RIGHTS UNDER THE ACT IS VOID WHEN THE
EMPLOYEE IS INDUCED TO SIGN IT BY THE DELIBERATELY FALSE AND MATERIAL
STATEMENTS OF THE RAILROAD'S AUTHORIZED REPRESENTATIVES MADE TO DECEIVE
THE EMPLOYEE AS TO THE CONTENTS OF THE RELEASE.  THE TRIAL COURT'S
CHARGE TO THE JURY CORRECTLY STATED THIS RULE OF LAW. 

THIRD.  OHIO PROVIDES AND HAS HERE ACCORDED PETITIONER THE USUAL JURY
TRIAL OF FACTUAL ISSUES RELATING TO NEGLIGENCE.  BUT OHIO TREATS
FACTUAL QUESTIONS OF FRAUDULENT RELEASES DIFFERENTLY.  IT PERMITS THE
JUDGE TRYING A NEGLIGENCE CASE TO RESOLVE ALL FACTUAL QUESTIONS OF
FRAUD "OTHER THAN FRAUD IN THE FACTUM."  THE FACTUAL ISSUE OF FRAUD IS
THUS SPLIT INTO FRAGMENTS, SOME TO BE DETERMINED BY THE JUDGE, OTHERS
BY THE JURY. 

IT IS CONTENDED THAT SINCE A STATE MAY CONSISTENTLY WITH THE FEDERAL
CONSTITUTION PROVIDE FOR TRIAL OF CASES UNDER THE ACT BY A NONUNANIMOUS
VERDICT, MINNEAPOLIS & ST. LOUIS R. CO. V. BOMBOLIS, 241 U.S. 211, OHIO
MAY LAWFULLY ELIMINATE TRIAL BY JURY AS TO ONE PHASE OF FRAUD WHILE
ALLOWING JURY TRIAL AS TO ALL OTHER ISSUES RAISED.  THE BOMBOLIS CASE
MIGHT BE MORE IN POINT HAD OHIO ABOLISHED TRIAL BY JURY IN ALL
NEGLIGENCE CASES INCLUDING THOSE ARISING UNDER THE FEDERAL ACT.  BUT
OHIO HAS NOT DONE THIS.  IT HAS PROVIDED JURY TRIALS FOR CASES ARISING
UNDER THE FEDERAL ACT BUT SEEKS TO SINGLE OUT ONE PHASE OF THE QUESTION
OF FRAUDULENT RELEASES FOR DETERMINATION BY A JUDGE RATHER THAN BY A
JURY.  COMPARE TESTA V. KATT, 330 U.S. 386. 

WE HAVE PREVIOUSLY HELD THAT "THE RIGHT TO TRIAL BY JURY IS 'A BASIC
AND FUNDAMENTAL FEATURE OF OUR SYSTEM OF FEDERAL JURISPRUDENCE'" AND
THAT IT IS "PART AND PARCEL OF THE REMEDY AFFORDED RAILROAD WORKERS
UNDER THE EMPLOYERS LIABILITY ACT."  BAILEY V. CENTRAL VERMONT R. CO.,
319 U.S. 350, 354.  WE ALSO RECOGNIZED IN THAT CASE THAT TO DEPRIVE
RAILROAD WORKERS OF THE BENEFIT OF A JURY TRIAL WHERE THERE IS EVIDENCE
TO SUPPORT NEGLIGENCE "IS TO TAKE AWAY A GOODLY PORTION OF THE RELIEF
WHICH CONGRESS HAS AFFORDED THEM."  IT FOLLOWS THAT THE RIGHT TO TRIAL
BY JURY IS TOO SUBSTANTIAL A PART OF THE RIGHTS ACCORDED BY THE ACT TO
PERMIT IT TO BE CLASSIFIED AS A MERE "LOCAL RULE OF PROCEDURE" FOR
DENIAL IN THE MANNER THAT OHIO HAS HERE USED.  BROWN V. WESTERN R. CO.,
338 U.S. 294. 

THE TRIAL JUDGE AND THE OHIO SUPREME COURT ERRED IN HOLDING THAT
PETITIONER'S RIGHTS WERE TO BE DETERMINED BY OHIO LAW AND IN TAKING
AWAY PETITIONER'S VERDICT WHEN THE ISSUES OF FRAUD HAD BEEN SUBMITTED
TO THE JURY ON CONFLICTING EVIDENCE AND DETERMINED IN PETITIONER'S
FAVOR.  THE JUDGMENT OF THE COURT OF APPEALS OF SUMMIT COUNTY, OHIO,
WAS CORRECT AND SHOULD NOT HAVE BEEN REVERSED BY THE SUPREME COURT OF
OHIO.  THE CAUSE IS REVERSED AND REMANDED TO THE SUPREME COURT OF OHIO
FOR FURTHER ACTION NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED, MR. JUSTICE JACKSON
AND MR. JUSTICE BURTON JOIN, CONCURRING FOR REVERSAL BUT DISSENTING
FROM THE COURT'S OPINION. 

OHIO, AS DO MANY OTHER STATES, (FN1) MAINTAINS THE OLD DIVISION
BETWEEN LAW AND EQUITY AS TO THE MODE OF TRYING ISSUES, EVEN THOUGH THE
SAME JUDGE ADMINISTERS BOTH.  THE OHIO SUPREME COURT HAS TOLD US WHAT,
ON ONE ISSUE, IS THE DIVISION OF FUNCTIONS IN ALL NEGLIGENCE ACTIONS
BROUGHT IN THE OHIO COURTS:  "WHERE IT IS CLAIMED THAT A RELEASE WAS
INDUCED BY FRAUD (OTHER THAN FRAUD IN THE FACTUM) OR BY MISTAKE, IT IS
NECESSARY, BEFORE SEEKING TO ENFORCE A CAUSE OF ACTION WHICH SUCH
RELEASE PURPORTS TO BAR, THAT EQUITABLE RELIEF FROM THE RELEASE BE
SECURED."  155 OHIO ST. 185, 186, 98 N.E.2D 301, 302.  THUS, IN ALL
CASES IN OHIO, THE JUDGE IS THE TRIER OF FACT ON THIS ISSUE OF FRAUD,
RATHER THAN THE JURY.  IT IS CONTENDED THAT THE FEDERAL EMPLOYERS'
LIABILITY ACT REQUIRES THAT OHIO COURTS SEND THE FRAUD ISSUE TO A JURY
IN THE CASES FOUNDED ON THAT ACT.  TO REQUIRE OHIO TO TRY A PARTICULAR
ISSUE BEFORE A DIFFERENT FACT-FINDER IN NEGLIGENCE ACTIONS BROUGHT
UNDER THE EMPLOYERS' LIABILITY ACT FROM THE FACT-FINDER ON THE
IDENTICAL ISSUE IN EVERY OTHER NEGLIGENCE CASE DISREGARDS THE SETTLED
DISTRIBUTION OF JUDICIAL POWER BETWEEN FEDERAL AND STATE COURTS WHERE
CONGRESS AUTHORIZES CONCURRENT ENFORCEMENT OF FEDERALLY-CREATED
RIGHTS. 

IT HAS BEEN SETTLED EVER SINCE THE SECOND EMPLOYERS' LIABILITY CASES,
223 U.S. 1, THAT NO STATE WHICH GIVES ITS COURTS JURISDICTION OVER
COMMON LAW ACTIONS FOR NEGLIGENCE MAY DENY ACCESS TO ITS COURTS FOR A
NEGLIGENCE ACTION FOUNDED ON THE FEDERAL EMPLOYERS' LIABILITY ACT.  NOR
MAY A STATE DISCRIMINATE DISADVANTAGEOUSLY AGAINST ACTIONS FOR
NEGLIGENCE UNDER THE FEDERAL ACT AS COMPARED WITH LOCAL CAUSES OF
ACTION IN NEGLIGENCE.  MCKNETT V. ST. LOUIS & S.F.R. CO., 292 U.S. 230,
234; MISSOURI EX REL. SOUTHERN R. CO. V. MAYFIELD, 340 U.S. 1, 4. 
CONVERSELY, HOWEVER, SIMPLY BECAUSE THERE IS CONCURRENT JURISDICTION IN
FEDERAL AND STATE COURTS OVER ACTIONS UNDER THE EMPLOYERS' LIABILITY
ACT, A STATE IS UNDER NO DUTY TO TREAT ACTIONS ARISING UNDER THAT ACT
DIFFERENTLY FROM THE WAY IT ADJUDICATES LOCAL ACTIONS FOR NEGLIGENCE,
SO FAR AS THE MECHANICS OF LITIGATION, THE FORMS IN WHICH LAW IS
ADMINISTERED, ARE CONCERNED.  THIS SURELY COVERS THE DISTRIBUTION OF
FUNCTIONS AS BETWEEN JUDGE AND JURY IN THE DETERMINATION OF THE ISSUES
IN A NEGLIGENCE CASE. 

IN 1916 THE COURT DECIDED WITHOUT DISSENT THAT STATES IN ENTERTAINING
ACTIONS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT NEED NOT PROVIDE A
JURY SYSTEM OTHER THAN THAT ESTABLISHED FOR LOCAL NEGLIGENCE ACTIONS. 
STATES ARE NOT COMPELLED TO PROVIDE THE JURY REQUIRED OF FEDERAL COURTS
BY THE SEVENTH AMENDMENT.  MINNEAPOLIS & ST. L.R. CO. V. BOMBOLIS, 241
U.S. 211.  IN THE THIRTY-SIX YEARS SINCE THIS EARLY DECISION AFTER THE
ENACTMENT OF THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65 (1908),
THE BOMBOLIS CASE HAS OFTEN BEEN CITED BY THIS COURT BUT NEVER
QUESTIONED.  UNTIL TODAY ITS SIGNIFICANCE HAS BEEN TO LEAVE TO STATES
THE CHOICE OF THE FACT-FINDING TRIBUNAL IN ALL NEGLIGENCE ACTIONS,
INCLUDING THOSE ARISING UNDER THE FEDERAL ACT.  MR. CHIEF JUSTICE
WHITE'S OPINION CANNOT BEAR ANY OTHER MEANING: 

"TWO PROPOSITIONS AS TO THE OPERATION AND EFFECT OF THE SEVENTH
AMENDMENT ARE AS CONCLUSIVELY DETERMINED AS IS THAT CONCERNING THE
NATURE AND CHARACTER OF THE JURY REQUIRED BY THAT AMENDMENT WHERE
APPLICABLE.  (A) THAT THE FIRST TEN AMENDMENTS, INCLUDING OF COURSE THE
SEVENTH, ARE NOT CONCERNED WITH STATE ACTION AND DEAL ONLY WITH FEDERAL
ACTION.  WE SELECT FROM A MULTITUDE OF CASES THOSE WHICH WE DEEM TO BE
LEADING.  BARRON V. BALTIMORE, 7 PET. 243; FOX V. OHIO, 5 HOW.  410,
434; TWITCHELL V. COMMONWEALTH, 7 WALL.  321; BROWN V. NEW JERSEY, 175
U.S. 172, 174; TWINING V. NEW JERSEY, 211 U.S. 78, 93.  AND, AS A
NECESSARY COROLLARY, (B) THAT THE SEVENTH AMENDMENT APPLIES ONLY TO
PROCEEDINGS IN COURTS OF THE UNITED STATES AND DOES NOT IN ANY MANNER
WHATEVER GOVERN OR REGULATE TRIALS BY JURY IN STATE COURTS OR THE
STANDARDS WHICH MUST BE APPLIED CONCERNING THE SAME.  LIVINGSTON V.
MOORE, 7 PET. 469, 552; THE JUSTICES V. MURRAY, 9 WALL.  274; EDWARDS
V. ELLIOTT, 21 WALL.  532; WALKER V. SAUVINET, 92 U.S. 90; PEARSON V.
YEWDALL, 95 U.S. 294."  ID., AT 217. 

"AND IT WAS OF COURSE PRESUMABLY AN APPRECIATION OF THE PRINCIPLES SO
THOROUGHLY SETTLED WHICH CAUSED CONGRESS IN THE ENACTMENT OF THE
EMPLOYERS' LIABILITY ACT TO CLEARLY CONTEMPLATE THE EXISTENCE OF A
CONCURRENT POWER AND DUTY OF BOTH FEDERAL AND STATE COURTS TO
ADMINISTER THE RIGHTS CONFERRED BY THE STATUTE IN ACCORDANCE WITH THE
MODES OF PROCEDURE PREVAILING IN SUCH COURTS."  ID., AT 218.    "THE
PROPOSITION THAT AS THE SEVENTH AMENDMENT IS CONTROLLING UPON CONGRESS,
ITS PROVISIONS MUST THEREFORE BE APPLICABLE TO EVERY RIGHT OF A FEDERAL
CHARACTER CREATED BY CONGRESS AND REGULATE THE ENFORCEMENT OF SUCH
RIGHT, BUT IN SUBSTANCE CREATES A CONFUSION BY WHICH THE TRUE
SIGNIFICANCE OF THE AMENDMENT IS OBSCURED.  THAT IS, IT SHUTS OUT OF
VIEW THE FACT THAT THE LIMITATIONS OF THE AMENDMENT ARE APPLICABLE ONLY
TO THE MODE IN WHICH POWER OR JURISDICTION SHALL BE EXERCISED IN
TRIBUNALS OF THE UNITED STATES, AND THEREFORE THAT ITS TERMS HAVE NO
RELATION WHATEVER TO THE ENFORCEMENT OF RIGHTS IN OTHER FORUMS MERELY
BECAUSE THE RIGHT ENFORCED IS ONE CONFERRED BY THE LAW OF THE UNITED
STATES."  ID., AT 219-220. 

ALTHOUGH A STATE MUST ENTERTAIN NEGLIGENCE SUITS BROUGHT UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT IF IT ENTERTAINS ORDINARY ACTIONS FOR
NEGLIGENCE, IT NEED CONDUCT THEM ONLY IN THE WAY IN WHICH IT CONDUCTS
THE RUN OF NEGLIGENCE LITIGATION.  THE BOMBOLIS CASE DIRECTLY
ESTABLISHES THAT THE EMPLOYERS' LIABILITY ACT DOES NOT IMPOSE THE JURY
REQUIREMENTS OF THE SEVENTH AMENDMENT ON THE STATES PRO TANTO FOR
EMPLOYERS' LIABILITY LITIGATION.  IF ITS REASONING MEANS ANYTHING, THE
BOMBOLIS DECISION MEANS THAT, IF A STATE CHOOSES NOT TO HAVE A JURY AT
ALL, BUT TO LEAVE QUESTIONS OF FACT IN ALL NEGLIGENCE ACTIONS TO A
COURT, CERTAINLY THE EMPLOYERS' LIABILITY ACT DOES NOT REQUIRE A STATE
TO HAVE JURIES FOR NEGLIGENCE ACTIONS BROUGHT UNDER THE FEDERAL ACT IN
ITS COURTS.  OR, IF A STATE CHOOSES TO RETAIN THE OLD DOUBLE SYSTEM OF
COURTS, COMMON LAW AND EQUITY - AS DID A GOOD MANY STATES UNTIL THE
OTHER DAY, AND AS FOUR STATES STILL DO (FN2) - SURELY THERE IS NOTHING
IN THE EMPLOYERS' LIABILITY ACT THAT REQUIRES TRADITIONAL DISTRIBUTION
OF AUTHORITY FOR DISPOSING OF LEGAL ISSUES AS BETWEEN COMMON LAW AND
CHANCERY COURTS TO GO BY THE BOARD.  AND, IF STATES ARE FREE TO MAKE A
DISTRIBUTION OF FUNCTIONS BETWEEN EQUITY AND COMMON LAW COURTS, IT
SURELY MAKES NO RATIONAL DIFFERENCE WHETHER A STATE CHOOSES TO PROVIDE
THAT THE SAME JUDGE PRESIDE ON BOTH THE COMMON LAW AND THE CHANCERY
SIDES IN A SINGLE LITIGATION, INSTEAD OF IN SEPARATE ROOMS IN THE SAME
BUILDING.  SO LONG AS ALL NEGLIGENCE SUITS IN A STATE ARE TREATED IN
THE SAME WAY, BY THE SAME MODE OF DISPOSING EQUITABLE, NON-JURY, AND
COMMON LAW, JURY ISSUES, THE STATE DOES NOT DISCRIMINATE AGAINST
EMPLOYERS' LIABILITY SUITS NOR DOES IT MAKE ANY INROAD UPON SUBSTANCE. 

OHIO AND HER SISTER STATES WITH A SIMILAR DIVISION OF FUNCTIONS
BETWEEN LAW AND EQUITY ARE NOT TRYING TO EVADE THEIR DUTY UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT; NOR ARE THEY TRYING TO MAKE IT MORE
DIFFICULT FOR RAILROAD WORKERS TO RECOVER, THAN FOR THOSE SUING UNDER
LOCAL LAW.  THE STATES MERELY EXERCISE A PREFERENCE IN ADHERING TO
HISTORIC WAYS OF DEALING WITH A CLAIM OF FRAUD; THEY PREFER THE
TRADITIONAL WAY OF MAKING UNAVAILABLE THROUGH EQUITY AN OTHERWISE VALID
DEFENSE.  THE STATE JUDGES AND LOCAL LAWYERS WHO MUST ADMINISTER THE
FEDERAL EMPLOYERS' LIABILITY ACT IN STATE COURTS ARE TRAINED IN THE
WAYS OF LOCAL PRACTICE; IT MULTIPLIES THE DIFFICULTIES AND CONFUSES THE
ADMINISTRATION OF JUSTICE TO REQUIRE, ON PURELY THEORETICAL GROUNDS, A
HYBRID OF STATE AND FEDERAL PRACTICE IN THE STATE COURTS AS TO A SINGLE
CLASS OF CASES.  NOTHING IN THE EMPLOYERS' LIABILITY ACT OR IN THE
JUDICIAL ENFORCEMENT OF THE ACT FOR OVER FORTY YEARS FORCES SUCH
JUDICIAL HYBRIDIZATION UPON THE STATES.  THE FACT THAT CONGRESS
AUTHORIZED ACTIONS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT TO BE
BROUGHT IN STATE AS WELL AS IN FEDERAL COURTS SEEMS A STRANGE BASIS FOR
THE INFERENCE THAT CONGRESS OVERRODE STATE PROCEDURAL ARRANGEMENTS
CONTROLLING ALL OTHER NEGLIGENCE SUITS IN A STATE, BY IMPOSING UPON
STATE COURTS TO WHICH PLAINTIFFS CHOOSE TO GO THE RULES PREVAILING IN
THE FEDERAL COURTS REGARDING JURIES.  SUCH AN INFERENCE IS ADMISSIBLE,
SO IT SEEMS TO ME, ONLY ON THE THEORY THAT CONGRESS INCLUDED AS PART OF
THE RIGHT CREATED BY THE EMPLOYERS' LIABILITY ACT AN ASSUMED LIKELIHOOD
THAT TRYING ALL ISSUES TO JURIES IS MORE FAVORABLE TO PLAINTIFFS.  AT
LEAST, IF A PLAINTIFF'S RIGHT TO HAVE ALL ISSUES DECIDED BY A JURY
RATHER THAN THE COURT IS "PART AND PARCEL OF THE REMEDY AFFORDED
RAILROAD WORKERS UNDER THE EMPLOYERS LIABILITY ACT," THE BOMBOLIS CASE
SHOULD BE OVERRULED EXPLICITLY INSTEAD OF LEFT AS A DERELICT BOUND TO
OCCASION COLLISIONS ON THE WATERS OF THE LAW.  WE HAVE PUT THE
QUESTIONS SQUARELY BECAUSE THEY SEEM TO BE PRECISELY WHAT WILL BE
ROUSED IN THE MINDS OF LAWYERS PROPERLY PRESSING THEIR CLIENTS'
INTERESTS AND IN THE MINDS OF TRIAL AND APPELLATE JUDGES CALLED UPON TO
APPLY THIS COURT'S OPINION.  IT IS ONE THING NOT TO BORROW TROUBLE FROM
THE MORROW.  IT IS ANOTHER THING TO CREATE TROUBLE FOR THE MORROW. 

EVEN THOUGH THE METHOD OF TRYING THE EQUITABLE ISSUE OF FRAUD WHICH
THE STATE APPLIES IN ALL OTHER NEGLIGENCE CASES GOVERNS EMPLOYERS'
LIABILITY CASES, TWO QUESTIONS REMAIN FOR DECISION:  SHOULD THE
VALIDITY OF THE RELEASE BE TESTED BY A FEDERAL OR A STATE STANDARD? 
AND IF BY A FEDERAL ONE, DID THE OHIO COURTS IN THE PRESENT CASE
CORRECTLY ADMINISTER THE STANDARD?  IF THE STATES AFFORD COURTS FOR
ENFORCING THE FEDERAL ACT, THEY MUST ENFORCE THE SUBSTANCE OF THE RIGHT
GIVEN BY CONGRESS.  THEY CANNOT DEPRECIATE THE LEGISLATIVE CURRENCY
ISSUED BY CONGRESS - EITHER EXPRESSLY OR BY LOCAL METHODS OF
ENFORCEMENT THAT ACCOMPLISH THE SAME RESULT.  DAVIS V. WECHSLER, 263
U.S. 22, 24.  IN ORDER TO PREVENT DIMINUTION OF RAILROAD WORKERS'
NATIONALLY-UNIFORM RIGHT TO RECOVER, THE STANDARD FOR THE VALIDITY OF A
RELEASE OF CONTESTED LIABILITY MUST BE FEDERAL.  WE HAVE RECENTLY SAID:
"ONE WHO ATTACKS A SETTLEMENT MUST BEAR THE BURDEN OF SHOWING THAT THE
CONTRACT HE HAS MADE IS TAINTED WITH INVALIDITY, EITHER BY FRAUD
PRACTICED UPON HIM OR BY A MUTUAL MISTAKE UNDER WHICH BOTH PARTIES
ACTED."  CALLEN V. PENNSYLVANIA R. CO., 332 U.S. 625, 630.  SUCH PROOF
OF FRAUD NEED BE ONLY BY A PREPONDERANCE OF RELEVANT EVIDENCE.  SEE
UNION PACIFIC R. CO. V. HARRIS, 158 U.S. 326.  THE ADMITTED FACT THAT
THE INJURED WORKER SIGNED THE RELEASE IS MATERIAL IN TENDING TO SHOW
THE RELEASE TO BE VALID, BUT PRESUMPTIONS MUST NOT BE DRAWN FROM THAT
FACT SO AS TO HOBBLE THE PLAINTIFF'S SHOWING THAT IT WOULD BE UNJUST TO
ALLOW A FORMALLY GOOD DEFENSE TO PREVAIL.  SEE SEC. 5, FEDERAL
EMPLOYERS' LIABILITY ACT, 35 STAT. 65, 66, 45 U.S.C. SEC. 55. 

THE JUDGMENT OF THE OHIO SUPREME COURT MUST BE REVERSED FOR IT APPLIED
THE STATE RULE AS TO VALIDITY OF RELEASES, 155 OHIO ST. 185, 98 N.E.2D
301, AND IT IS NOT FOR US TO INTERPRET OHIO DECISIONS IN ORDER TO BE
ASSURED THAT ON A MATTER OF SUBSTANCE THE STATE AND FEDERAL CRITERIA
COINCIDE.  MOREOVER, WE CANNOT SAY WITH CONFIDENCE THAT THE OHIO TRIAL
JUDGE APPLIED THE FEDERAL STANDARD CORRECTLY.  HE DULY RECOGNIZED THAT
"THE FEDERAL LAW CONTROLS AS TO THE VALIDITY OF A RELEASE PLEADED AND
PROVED IN BAR OF THE ACTION, AND THE BURDEN OF SHOWING THAT THE ALLEGED
FRAUD VITIATES THE CONTRACT OR COMPROMISE OR RELEASE RESTS UPON THE
PARTY ATTACKING THE RELEASE."  AND HE MADE AN EXTENDED ANALYSIS OF THE
RELEVANT CIRCUMSTANCES OF THE RELEASE, CONCLUDING, HOWEVER, THAT THERE
WAS NO "CLEAR, UNEQUIVOCAL AND CONVINCING EVIDENCE" OF FRAUD.  SINCE
THESE ELUSIVE WORDS FAIL TO ASSURE US THAT THE TRIAL JUDGE FOLLOWED THE
FEDERAL TEST AND DID NOT REQUIRE SOME LARGER QUANTUM OF PROOF, WE WOULD
RETURN THE CASE FOR FURTHER PROCEEDINGS ON THE SOLE QUESTION OF FRAUD
IN THE RELEASE. 

FN1  CHAFEE, SIMPSON, AND MALONEY, CASES ON EQUITY (1951 ED.)  12. 

FN2  IBID.
..END :






















UNITED STATES V. NEW WRINKLE, INC. 342 U.S. 371 


NO. 250.  ARGUED JANUARY 10-11, 1952 - DECIDED FEBRUARY 4, 1952 -
REVERSED. 


A COMPLAINT IN A CIVIL SUIT BY THE UNITED STATES UNDER SEC. 4 OF THE
SHERMAN ACT CHARGING THAT THE TWO DEFENDANTS SUCCESSFULLY CONSPIRED TO
FIX UNIFORM MINIMUM PRICES AND TO ELIMINATE COMPETITION THROUGHOUT
SUBSTANTIALLY ALL OF THE WRINKLE FINISH INDUSTRY OF THE UNITED STATES
BY MEANS OF PATENT-LICENSE AGREEMENTS, HELD TO HAVE CHARGED A VIOLATION
OF SEC. 1 OF THE SHERMAN ACT BY BOTH DEFENDANTS.  PP. 372-380. 

1.  THAT ONE OF THE DEFENDANTS, A PATENT-HOLDING COMPANY, ABSTAINED
FROM MANUFACTURING ACTIVITIES AND CONCENTRATED ON PATENT LICENSING DID
NOT INSULATE ITS ACTIVITY FROM THE PROHIBITIONS OF SEC. 1 OF THE
SHERMAN ACT.  PP. 376-378. 

2.  THE MAKING OF THESE LICENSE CONTRACTS FOR THE PURPOSE OF
REGULATING DISTRIBUTION AND FIXING PRICES OF COMMODITIES IN INTERSTATE
COMMERCE IS SUBJECT TO THE SHERMAN ACT, EVEN THOUGH THE ISOLATED ACT OF
CONTRACTING FOR THE LICENSES IS WHOLLY WITHIN A SINGLE STATE.  P. 377. 

3.  PATENTS GIVE NO PROTECTION FROM THE PROHIBITIONS OF THE SHERMAN
ACT WHEN LICENSING AGREEMENTS ARE USED AS A MEANS OF RESTRAINING
INTERSTATE COMMERCE AND FIXING PRICES THROUGHOUT SUBSTANTIALLY ALL OF
AN ENTIRE INDUSTRY INVOLVING MANY DIFFERENT MANUFACTURERS.  UNITED
STATES V. LINE MATERIAL CO., 333 U.S. 287; UNITED STATES V. UNITED
STATES GYPSUM CO., 333 U.S. 364.  PP. 378-380. 

UNITED STATES V. NEW WRINKLE, INC. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO. 

THE DISTRICT COURT DISMISSED A COMPLAINT BY THE UNITED STATES UNDER
SEC. 4 OF THE SHERMAN ACT TO RESTRAIN VIOLATIONS OF SEC. 1 BY
APPELLEES.  ON DIRECT APPEAL TO THIS COURT UNDER 15 U.S.C. SEC. 29,
REVERSED, P. 380. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS SUIT AGAINST NEW WRINKLE, INC., AND THE KAY & ESS CO. WAS
INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO BY THE UNITED STATES AS A CIVIL PROCEEDING UNDER SEC.
4 OF THE SHERMAN ACT.  (FN1)  DEFENDANTS ARE CHARGED WITH HAVING
VIOLATED SEC. 1 OF THAT LAW (FN2) BY CONSPIRING TO FIX UNIFORM MINIMUM
PRICES AND TO ELIMINATE COMPETITION THROUGHOUT SUBSTANTIALLY ALL OF THE
WRINKLE FINISH INDUSTRY (FN3) OF THE UNITED STATES BY MEANS OF PATENT
LICENSE AGREEMENTS.  MOTIONS TO DISMISS THE SUIT WERE FILED BY
DEFENDANTS.  THE DEFENDANT KAY & ESS URGED THAT THE COMPLAINT FAILED TO
STATE A CAUSE OF ACTION.  DEFENDANT NEW WRINKLE PRESSED A SOLE
CONTENTION:  THAT IT WAS NOT THEN AND NEVER HAD BEEN ENGAGED IN
INTERSTATE COMMERCE AND COULD, THEREFORE, NOT BE GUILTY OF VIOLATING
THE SHERMAN ACT. 

THE DISTRICT COURT, WITHOUT OPINION, THEREAFTER ENTERED SEPARATE
JUDGMENTS AS TO EACH DEFENDANT DISMISSING THE COMPLAINT AND RECITING IN
EACH JUDGMENT THAT THE MOTION TO DISMISS WAS "WELL TAKEN."  A PETITION
FOR APPEAL WAS FILED AND ALLOWED, AND ON OCTOBER 8, 1951, PROBABLE
JURISDICTION WAS NOTED ON DIRECT APPEAL PURSUANT TO A JURISDICTION
CONFERRED ON THIS COURT BY SEC. 2 OF THE EXPEDITING ACT OF FEBRUARY 11,
1903.  15 U.S.C. SEC. 29. 

                 I. 

IN GRANTING THE MOTIONS OF DEFENDANTS, THE DISTRICT COURT, OF COURSE,
TREATED THE ALLEGATIONS OF THE COMPLAINT AS TRUE.  IN SUBSTANCE THE
COMPLAINT CHARGES THAT PRIOR TO AND DURING 1937, DEFENDANT KAY & ESS
WAS ENGAGED IN LITIGATION WITH A NAMED COCONSPIRATOR, THE CHADELOID
CHEMICAL CO., IN REGARD TO CERTAIN PATENTS COVERING MANUFACTURE OF
WRINKLE FINISH ENAMELS, VARNISHES AND PAINTS.  EACH COMPANY CLAIMED IT
CONTROLLED THE BASIC PATENTS ON WRINKLE FINISH, CONTENDING THAT THE
PATENTS OF THE OTHER WERE SUBSERVIENT TO ITS OWN.  NEGOTIATIONS
THROUGHOUT 1937 RESULTED IN A CONTRACT ENTERED INTO BY KAY & ESS AND
CHADELOID ON NOVEMBER 2, 1937.  THIS CONTRACT MADE PROVISION FOR THE
ORGANIZATION OF A NEW CORPORATION, THE DEFENDANT NEW WRINKLE.  BOTH KAY
& ESS AND CHADELOID AGREED TO ACCEPT STOCK IN THE NEW COMPANY IN
EXCHANGE FOR ASSIGNMENTS OF THEIR WRINKLE FINISH PATENTS.  NEW WRINKLE
WAS TO GRANT PATENT LICENSES, INCORPORATING AGREEMENTS WHICH FIXED THE
MINIMUM PRICES AT WHICH ALL LICENSED MANUFACTURERS MIGHT SELL, TO THE
MANUFACTURERS IN THE WRINKLE FINISH INDUSTRY, INCLUDING KAY & ESS AND
CHADELOID.  THE PRICE-FIXING SCHEDULES WERE NOT TO BECOME OPERATIVE
UNTIL TWELVE OF THE PRINCIPAL PRODUCERS OF WRINKLE FINISHES HAD
SUBSCRIBED TO THE MINIMUM PRICES PRESCRIBED IN THE LICENSE AGREEMENTS. 

PURSUANT TO THIS ARRANGEMENT THE COMPLAINT CHARGES NEW WRINKLE WAS
INCORPORATED, AND THE PATENT RIGHTS OF KAY & ESS AND CHADELOID WERE
TRANSFERRED TO IT.  IN CONJUNCTION WITH OTHER NAMED COMPANIES AND
PERSONS, THE DEFENDANTS AND CHADELOID THEREAFTER WORKED TOGETHER TO
INDUCE MAKERS OF WRINKLE FINISHES TO ACCEPT THE PRICE-FIXING PATENT
LICENSES WHICH NEW WRINKLE HAD TO OFFER.  THESE PROSPECTIVE LICENSEES
WERE ADVISED OF THE AGREED-UPON PRICES, TERMS AND CONDITIONS OF SALE IN
THE NEW WRINKLE LICENSES, AND THEY WERE ASSURED THAT LIKE ADVICE WAS
BEING GIVEN TO OTHER MANUFACTURERS "IN ORDER TO ESTABLISH MINIMUM
PRICES THROUGHOUT THE INDUSTRY."  AFTER MAY 7, 1938, WHEN THE REQUISITE
TWELVE LEADING MANUFACTURING COMPANIES HAD ACCEPTED NEW WRINKLE
LICENSES, THE PRICE SCHEDULES BECAME OPERATIVE.  BY SEPTEMBER 1948,
WHEN THE COMPLAINT WAS FILED IN THIS ACTION, MORE THAN TWO HUNDRED, OR
SUBSTANTIALLY ALL, MANUFACTURERS OF WRINKLE FINISHES IN THE UNITED
STATES HELD NEARLY IDENTICAL TEN-YEAR EXTENDABLE LICENSE AGREEMENTS
FROM NEW WRINKLE.  THESE AGREEMENTS REQUIRED, AMONG OTHER THINGS, THAT
A LICENSE OBSERVE IN ALL SALES OF PRODUCTS COVERED BY THE LICENSED
PATENTS A SCHEDULE OF MINIMUM PRICES, DISCOUNTS AND SELLING TERMS
ESTABLISHED BY THE LICENSOR NEW WRINKLE.  UPON THIRTY DAYS' NOTICE IN
WRITING, NEW WRINKLE MIGHT ALTER ANY OR ALL OF THE TERMS OF THE PRICE
SCHEDULE, BUT SUCH PRICES, TERMS AND DISCOUNTS AS NEW WRINKLE MIGHT
ESTABLISH WERE TO BIND THE LICENSEE ONLY IF IMPOSED AT THE SAME TIME
AND IN THE SAME TERMS UPON THE LICENSOR AND ALL OTHER LICENSEES.  (FN4)
TERMINATION PROVISIONS IN THE AGREEMENTS REQUIRED A LICENSEE TO GIVE
THREE MONTHS' WRITTEN NOTICE AND ALLOWED THE LICENSOR TO TERMINATE THE
LICENSE IF A LICENSEE FAILED TO REMEDY A VIOLATION OF THE AGREEMENT
WITHIN THIRTY DAYS AFTER WRITTEN NOTICE THEREOF BY THE LICENSOR.  A 5
CENT PER GALLON ROYALTY WAS MADE PAYABLE ON ALL WRINKLE FINISH SOLD OR
USED BY A LICENSEE, SAID ROYALTY TO BE REDUCED TO THE SAME FIGURE AS
THAT CONTAINED IN ANY SUBSEQUENT LICENSE GRANTED AT A LOWER ROYALTY
CHARGE. 

NEW WRINKLE, ACTING WITH THE CONSENT OF ITS LICENSEES, ISSUED AT
INTERVALS "LICENSE RULINGS" GIVING MINIMUM PRICES, DETAILED TERMS AND
CONDITIONS SUCH AS ALLOWABLE DISCOUNTS AND PERMISSIBLE PRACTICES.  THE
REQUIREMENTS OF THESE "RULINGS" WERE ADHERED TO BY THE LICENSEES. 
SINCE AN ENTIRE COPY OF "LICENSE RULINGS," AS FILED WITH THE COMPLAINT
AS AN EXHIBIT, IS TOO BULKY FOR REPRINTING, THE SCHEDULE OF PRICES
OPERATIVE AT THE TIME OF THE FILING OF THE COMPLAINT IN THIS ACTION, AS
ILLUSTRATIVE, IS SET OUT IN AN APPENDIX TO THIS OPINION, POST, P. 381. 
IT PRECISELY DETAILS AND MAKES RIGID THE SELLING PROCEDURE FOR A
VARIETY OF MINUTELY PRESCRIBED PRODUCTS DEEMED TO BE COVERED BY THE
PATENTS AND THE LICENSE AGREEMENTS. 

                     II. 

SINCE THE MOTIONS TO DISMISS MUST BE DEEMED TO ADMIT ALL OF THE ABOVE
AS TRUE, WE NEED ONLY CONSIDER WHETHER OF NOT THESE FACTS WOULD
ESTABLISH A VIOLATION OF SEC. 1 OF THE SHERMAN ACT BY APPELLEES, NEW
WRINKLE AND KAY & ESS. 

APPELLEE, NEW WRINKLE, DIFFERS FROM KAY & ESS.  NEW WRINKLE IS NOT A
MANUFACTURER OF THE COMMODITIES COVERED BY ITS PATENTS.  IT IS SOLEY A
HOLDER OR OWNER OF THE PATENTS, GRANTING THE RIGHT OF MAKING AND
VENDING TO OTHERS.  KAY & ESS DOES MANUFACTURE UNDER THE NEW WRINKLE
LICENSE.  NEW WRINKLE URGES THAT ITS ABSTENTION FROM MANUFACTURING
ACTIVITIES AND CONCENTRATION ON PATENT LICENSING INSULATES ITS ACTIVITY
FROM THE PROHIBITIONS OF SEC. 1 OF THE SHERMAN ACT.  PERSONS ENGAGED
EXCLUSIVELY IN LICENSING PATENTS ARE SAID BY APPELLEE TO BE EXEMPT FROM
THE SHERMAN ACT BECAUSE SUCH CONTRACTS ARE NOT COMMERCE AND ARE
FUNCTIONS SOLELY CONTROLLED BY THE PATENT LAWS.  FOR THE CONTENTION
THAT ITS LICENSING IS NOT COMMERCE, RELIANCE IS PLACED ON NEW YORK LIFE
INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495, AND CASES INVOLVING SUCH
LOCAL INCIDENTS OF INTERSTATE COMMERCE AS WERE TREATED IN UNITED SHOE
MACHINERY CO. V. UNITED STATES.  (FN5)  FOR THE LATTER CONTENTION, IF
WE UNDERSTAND THE ARGUMENT CORRECTLY, NEW WRINKLE ASSERTS THAT SINCE
PATENTS GIVE THEIR OWNERS A RIGHT TO SELL, THEY MAY DO SO ON SUCH TERMS
AS THEY PLEASE BECAUSE THEY ARE MERELY SELLING PERSONAL SERVICES, AND
SUCH SERVICES ARE NOT COMMERCE, CITING APEX HOSIERY CO. V. LEADER, 310
U.S. 469, 502, A CASE HOLDING THAT A STRIKE TO UNIONIZE A FACTORY DID
NOT VIOLATE THE SHERMAN ACT. 

THESE CONTENTIONS LEAVE OUT OF CONSIDERATION THE ALLEGATIONS OF THE
COMPLAINT CONCERNING THE ALLEGED COMBINATION IN RESTRAINT OF TRADE. 
THE UNITED STATES CHARGED THE USE OF PATENT LICENSES AS AN ESSENTIAL
PART OF THE PLAN TO RESTRAIN TRADE, A TRADE IN ENAMELS, VARNISHES AND
PAINTS THAT IS ALLEGED TO BE AND OBVIOUSLY IS INTERSTATE IN CHARACTER. 
IT CHARGES THAT THE PRICE CONTROL IS AN ESSENTIAL PART OF THAT
RESTRAINT. 

WE THINK IT BEYOND QUESTION THAT THIS MAKING OF LICENSE CONTRACTS FOR
THE PURPOSE OF REGULATING DISTRIBUTION AND FIXING PRICES OF COMMODITIES
IN INTERSTATE COMMERCE IS SUBJECT TO THE SHERMAN ACT, EVEN THOUGH THE
ISOLATED ACT OF CONTRACTING FOR THE LICENSES IS WHOLLY WITHIN A SINGLE
STATE.  CERTAINLY SINCE UNITED STATES V. TRENTON POTTERIES, 273 U.S.
392, 397 (DECIDED IN 1927), PRICE FIXING IN COMMERCE, REASONABLE OR
UNREASONABLE, HAS BEEN CONSIDERED A PER SE VIOLATION OF THE SHERMAN
ACT.  (FN6)  LIKEWISE IT IS CLEAR THAT, ALTHOUGH THE EXECUTION OF A
CONTRACT OF INSURANCE MAY NOT BE INTERSTATE COMMERCE: 

"IF CONTRACTS OF INSURANCE ARE IN FACT MADE THE INSTRUMENTS OF
RESTRAINT IN THE MARKETING OF GOODS AND SERVICES IN OR AFFECTING
INTERSTATE COMMERCE, THEY ARE NOT BEYOND THE REACH OF THE SHERMAN ACT
MORE THAN CONTRACTS FOR THE SALE OF COMMODITIES, - CONTRACTS WHICH, NOT
IN THEMSELVES INTERSTATE COMMERCE, MAY NEVERTHELESS BE USED AS THE
MEANS OF ITS RESTRAINT."  (FN7) 

AND SO IT IS WITH PATENT LICENSE CONTRACTS WHICH ARE A PART OF A PLAN
TO RESTRAIN COMMERCE.  PATENTS GIVE NO PROTECTION FROM THE PROHIBITIONS
OF THE SHERMAN ACT TO SUCH ACTIVITIES, WHEN THE LICENSES ARE USED, AS
HERE, IN THE SCHEME TO RESTRAIN.  THE ALLEGATIONS OF THE COMPLAINT
COVER SUCH A SITUATION AND NEW WRINKLE AND ITS MANUFACTURING LICENSEE,
KAY & ESS, ARE ALIKE COVERED BY THE PROHIBITIONS OF SEC. 1. 

                III. 

APPELLEES ARGUE FURTHER, HOWEVER, THAT THE PRINCIPLES OF UNITED
STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, AND BEMENT V. NATIONAL
HARROW CO., 186 U.S. 70, CONTROL HERE.  SINCE WE EXAMINED THESE
PRINCIPLES IN DETAIL AS RECENTLY AS 1948, WE DRAW UPON THAT DISCUSSION
FOR OUR CONCLUSIONS HERE.  (FN8)  THE BEMENT AND GENERAL ELECTRIC CASES
ALLOWED A PATENTEE TO LICENSE A COMPETITOR IN COMMERCE TO MAKE AND VEND
WITH A PRICE LIMITATION CONTROLLED BY THE PATENTEE.  WHEN WE EXAMINED
THE RULE IN 1948, THE HOLDING OF THE GENERAL ELECTRIC CASE WAS LEFT AS
STATED ABOVE.  333 U.S. AT 310.  BUT IT WAS POINTED OUT THAT: 

"THE POSSESSION OF A VALID PATENT OR PATENTS DOES NOT GIVE THE
PATENTEE ANY EXEMPTION FROM THE PROVISIONS OF THE SHERMAN ACT BEYOND
THE LIMITS OF THE PATENT MONOPOLY."  P. 308. 

WE SAID THAT: 

"TWO OR MORE PATENTEES IN THE SAME PATENT FIELD MAY (NOT) LEGALLY
COMBINE THEIR VALID PATENT MONOPOLIES TO SECURE MUTUAL BENEFITS FOR
THEMSELVES THROUGH CONTRACTUAL AGREEMENTS, BETWEEN THEMSELVES AND OTHER
LICENSEES, FOR CONTROL OF THE SALE PRICE OF THE PATENTED DEVICES."  P.
305. 

PRICE CONTROL THROUGH CROSS-LICENSING WAS BARRED AS BEYOND THE PATENT
MONOPOLY. 

ON THE DAY OF THE LINE MATERIAL DECISION, THIS COURT HANDED DOWN
UNITED STATES V. UNITED STATES GYPSUM CO., 333 U.S. 364.  THE GYPSUM
CASE WAS BASED ON FACTS SIMILAR TO THOSE HERE ALLEGED EXCEPT THAT THE
PATENT OWNER WAS ALSO A MANUFACTURER.  WE HAVE POINTED OUT ABOVE IN
IS EXCLUSIVELY A PATENT-HOLDING COMPANY OF NO SIGNIFICANCE AS A DEFENSE
TO THE ALLEGED VIOLATION OF THE SHERMAN ACT.  WE SAID IN GYPSUM THAT: 

"INDUSTRY-WIDE LICENSE AGREEMENTS, ENTERED INTO WITH KNOWLEDGE ON THE
PART OF LICENSOR AND LICENSEES OF THE ADHERENCE OF OTHERS, WITH THE
CONTROL OVER PRICES AND METHODS OF DISTRIBUTION THROUGH THE AGREEMENTS
AND THE BULLETINS, WERE SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE OF
CONSPIRACY."  P. 389. 

ON REMAND, THE PRIMA FACIE CASE RESULTED IN A FINAL JUDGMENT,
AFFIRMED BY THIS COURT.  (FN9)  IN DISCUSSING THE GENERAL ELECTRIC
CASE, THE COURT WAS UNANIMOUS IN SAYING THAT IT: 

"GIVES NO SUPPORT FOR A PATENTEE, ACTING IN CONCERT WITH ALL MEMBERS
OF AN INDUSTRY, TO ISSUE SUBSTANTIALLY IDENTICAL LICENSES TO ALL
MEMBERS OF THE INDUSTRY UNDER THE TERMS OF WHICH THE INDUSTRY IS
COMPLETELY REGIMENTED, THE PRODUCTION OF COMPETITIVE UNPATENTED
PRODUCTS SUPPRESSED, A CLASS OF DISTRIBUTORS SQUEEZED OUT, AND PRICES
ON UNPATENTED PRODUCTS STABILIZED.  ...  IT WOULD BE SUFFICIENT TO SHOW
THAT THE DEFENDANTS, CONSTITUTING ALL FORMER COMPETITORS IN AN ENTIRE
INDUSTRY, HAD ACTED IN CONCERT TO RESTRAIN COMMERCE IN AN ENTIRE
INDUSTRY UNDER PATENT LICENSES IN ORDER TO ORGANIZE THE INDUSTRY AND
STABILIZE PRICES."  PP. 400-401. 

WE SEE NO MATERIAL DIFFERENCE BETWEEN THE SITUATION IN LINE MATERIAL
AND GYPSUM AND THE CASE PRESENTED BY THE ALLEGATIONS OF THIS
COMPLAINT.  AN ARRANGEMENT WAS MADE BETWEEN PATENT HOLDERS TO POOL
THEIR PATENTS AND FIX PRICES ON THE PRODUCTS FOR THEMSELVES AND THEIR
LICENSEES.  THE PURPOSE AND RESULT PLAINLY VIOLATE THE SHERMAN ACT. 
THE JUDGMENT BELOW MUST BE REVERSED. 

FN1  15 U.S.C. SEC. 4: 

"THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE INVESTED WITH
JURISDICTION TO PREVENT AND RESTRAIN VIOLATIONS OF SECTIONS 1-7 OF THIS
TITLE; 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.  SUCH PROCEEDINGS MAY BE BY WAY OF
PETITION SETTING FORTH THE CASE AND PRAYING THAT SUCH VIOLATION SHALL
BE ENJOINED OR OTHERWISE PROHIBITED.  WHEN THE PARTIES COMPLAINED OF
SHALL HAVE BEEN DULY NOTIFIED OF SUCH PETITION THE COURT SHALL PROCEED,
AS SOON AS MAY BE, TO THE HEARING AND DETERMINATION OF THE CASE; AND
PENDING SUCH PETITION AND BEFORE FINAL DECREE, THE COURT MAY AT ANY
TIME MAKE SUCH TEMPORARY RESTRAINING ORDER OR PROHIBITION AS AS SHALL
BE DEEMED JUST IN THE PREMISES."    FN2  ID., SEC. 1: 

"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:  ...  ."

FN3  "8.  'WRINKLE' FINISHES, ALSO KNOWN AS 'CRINKLE,' 'SHRIVEL,'
'SAG,' 'MOROCCO,' AND BY OTHER DESIGNATIONS, ARE DEFINED AS ENAMELS,
VARNISHES AND PAINTS WHICH HAVE BEEN COMPOUNDED FROM SUCH MATERIALS AND
BY SUCH METHODS AS TO PRODUCE WHEN APPLIED AND DRIED, A HARD WRINKLED
SURFACE ON METAL OR OTHER MATERIAL. 

"9.  WRINKLE FINISHES ARE WIDELY USED AS COVERINGS FOR THE SURFACES
OF TYPEWRITERS, CASH REGISTERS, MOTORS, ADDING MACHINES, AND MANY OTHER
ARTICLES OF MANUFACTURE.  THEY HAVE THE FOLLOWING ADVANTAGES OVER
SMOOTH FINISHES SUCH AS ORDINARY ENAMELS AND VARNISHES: 

"A.  ONE COAT OF WRINKLE FINISH IS SUFFICIENT FOR MANY PURPOSES FOR
WHICH TWO OR MORE COATS OF SMOOTH FINISH WOULD BE REQUIRED: 

"B.  SURFACES TO WHICH WRINKLE FINISHES ARE TO BE APPLIED NEED NOT BE
PREPARED AS CAREFULLY AS THOSE WHICH ARE TO RECEIVE SMOOTH FINISHES,
SINCE THE WRINKLE FINISHES COVER SMALL IMPERFECTIONS; AND: 

"C.  THE ORIGINAL APPEARANCE OF WRINKLE-FINISHED ARTICLES CAN BE
MAINTAINED WITH LESS CLEANING AND POLISHING THAN THAT OF SMOOTH
FINISHED ARTICLES." 

FN4  A COPY OF THE LICENSE WAS FILED WITH THE COMPLAINT.  AN
IMPORTANT SECTION, SEC. 7, READS, SO FAR AS MATERIAL IN THIS
PROCEEDINGS, AS FOLLOWS: 

"7.  THE LICENSOR HEREBY RESERVES AND SHALL HAVE THE RIGHT AT ANY
TIME TO ESTABLISH A SCHEDULE OF MINIMUM PRICES, DISCOUNTS, AND SELLING
TERMS ONLY IN ACCORDANCE WITH WHICH LICENSEE, LICENSOR, AND ALL OTHER
LICENSEES SHALL THEREAFTER SELL OR OTHERWISE DISPOSE OF PRODUCTS
COVERED BY PATENTS INCLUDED HEREIN, AND THEREAFTER TO MODIFY, AMEND AND
SUSPEND ANY SUCH SCHEDULE AND/OR ESTABLISH A NEW SCHEDULE  ...  .  THE
LICENSOR ANNOUNCES AS A MATTER OF POLICY THAT IT WILL FIX SAID PRICE
BASED UPON THE COST OF RAW MATERIALS AND LABOR AS REPORTED BY THE
UNITED STATES DEPARTMENT OF COMMERCE AND THE UNITED STATES DEPARTMENT
OF LABOR, PLUS THE ROYALTY CHARGED HEREUNDER, IT BEING THE INTENT AND
PURPOSE OF THE LICENSOR TO OPEN TO THE ENTIRE TRADE THE USE OF THESE
PATENTS SO LICENSED AT THE LOWEST PRICE CONSISTENT WITH A REASONABLE
PROFIT TO THE MANUFACTURER, LICENSEE, THE TRADE, AND TO THIS LICENSOR. 
NO SCHEDULE OF MINIMUM PRICES, DISCOUNTS AND SELLING TERMS NOR ANY
MODIFICATION OR AMENDMENT OR SUSPENSION THEREOF SHALL BE BINDING UPON
LICENSEE UNLESS AT THE SAME TIME AND IN THE SAME TERMS IMPOSED UPON
LICENSOR AND ALL OTHER LICENSEES." 

FN5  258 U.S. 451, 465.  THERE IT IS SAID: 

"IT IS TRUE THAT THE MERE MAKING OF THE LEASE OF THE MACHINES IS NOT
OF ITSELF INTERSTATE COMMERCE." 

FN6  UNITED STATES V. LINE MATERIAL CO., 333 U.S. 287, 307. 

FN7  UNITED STATES V. UNDERWRITERS ASSN., 322 U.S. 533, DISSENT 570,
SEE MAJORITY 546.  AND SEE POLISH ALLIANCE V. LABOR BOARD, 322 U.S.
643, 647, AND LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S. 143, 149. 

FN8 UNITED STATES V. LINE MATERIAL CO., 333 U.S. 287; UNITED STATES
V. UNITED STATES GYPSUM CO., 333 U.S. 364. 

FN9  UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76.  COMPARE
AS TO COPYRIGHTS UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131,
143. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

                              APPENDIX TO OPINION OF THE COURT. 

   NEW WRINKLE, INC.

                              LICENSORS OF PROCESSES AND FINISHES

 MINIMUM PRICE SCHEDULE NO. 5

       (ANNOUNCED JUNE 1, 1947)

         EFFECTIVE JULY 1, 1947

               (SUPERSEDING MINIMUM PRICE SCHEDULE NO. 4 AS REVISED
DECEMBER 12, 1946)

                PART OF NEW WRINKLE, INC., LICENSE AGREEMENT

                                   DATED APRIL 1, 1938 

THE FOLLOWING ARE THE MINIMUM PRICES AT WHICH PATENTED WRINKLE FINISH
MAY BE SOLD UNDER LICENSE AGREEMENT, TO TAKE EFFECT ON JULY 1, 1947 AND
TO REMAIN IN FORCE UNTIL FURTHER NOTICE. 

                              WRINKLE FINISH CLEAR

     1 GAL.              5 GAL.              1/2 DRUM      DRUM 

-100        $2.85               $2.70    $2.65               $2.60 

100         2.70    2.55                2.50                2.45

                 WRINKLE FINISH BLACK 

-100         3.40                3.25                3.20
3.10 

100         3.25                3.10                3.05
2.95

                         WRINKLE FINISH ORDINARY COLORS 

-100         3.65                3.50         3.40
3.35 

100         3.50        3.35                3.25                3.20

                     WRINKLE FINISH ORGANICS              (SEE PAGE
3) 

-100         4.00                3.85      3.75                3.70 

100         3.85     3.70                3.60                3.55

                  WRINKLE FINISH METALLICS             (SEE PAGE 3)

                         (ADDITION OF METALLIC TO CLEAR WRINKLE) 

-100         3.50                3.35          3.25
3.20 

100         3.35         3.20                3.10
3.05 

IN THE EVENT THAT A METALLIC IS ADDED TO PIGMENTED WRINKLE FINISH,
THE ESTABLISHED MINIMUM FOR THAT PIGMENTED FINISH, PLUS $.25, WILL BE
THE MINIMUM PRICE. 

REDUCTIONS IN PRICE FOR QUANTITY AS SHOWN ON ABOVE SCHEDULE ARE
PERMISSABLE ON AND SHALL APPLY ONLY TO QUANTITIES OF WRINKLE FINISH
CONTAINED IN A SINGLE SHIPMENT. 

WRINKLE FINISH IN CONCENTRATED FORM OR INGREDIENTS FROM WHICH
CUSTOMER MAY PRODUCE WRINKLE FINISH MAY BE SOLD BY LICENSEE ONLY AT
MINIMUM PRICE PER GALLON ON THE NUMBER OF GALLONS OF THE KIND OR COLOR
OF WRINKLE FINISH FOR FINAL USE BY THE CUSTOMER THAT CAN NORMALLY BE
PRODUCED BY ADDING TO SUCH CONCENTRATE OR INGREDIENTS SUPPLIED BY
LICENSEE. 

CLEAR WRINKLE FINISH SOLD BY LICENSEE UNDER CIRCUMSTANCES CHARGING
SELLER WITH KNOWLEDGE THAT CUSTOMER INTENDS CONVERTING SAME INTO
COLORED WRINKLE FINISH MAY BE SOLD ONLY IN ACCORDANCE WITH THE MINIMUM
PRICE PER GALLON HEREBY ESTABLISHED FOR WRINKLE FINISH OF THE COLOR AND
QUANTITY IN QUESTION. 

PRICES ARE F.O.B. DESTINATION OR FREIGHT ALLOWED. 

IN THE EVENT OF CANCELLATION OF ORDERS OR RETURN OF GOODS PRICES
SHALL BE READJUSTED AND SETTLEMENT MADE ACCORDING TO THE ACTUAL
QUANTITIES PURCHASED AND RETAINED. 

TERMS:  30 DAYS NET, 1% FOR CASH WITHIN TEN DAYS AFTER SHIPMENT. 

IN MAKING BIDS, IT IS NOT PERMISSABLE TO DEDUCT THE CASH DISCOUNT. 
THE CASH DISCOUNT OF 1% CAN ONLY BE GIVEN OR ALLOWED IF THE "WRINKLE
FINISH" IS ACTUALLY PAID FOR WITHIN TEN DAYS AFTER SHIPMENT. 

SEE MINIMUM PRICE SCHEDULE (NO. 2-A) ON PAGE 7 FOR CANADIAN PRICES. 
..END :













STANDARD OIL CO. V. PECK 342 U.S. 382 


NO. 184.  ARGUED JANUARY 3-4, 1952.  - DECIDED FEBRUARY 4, 1952.  - 155
OHIO ST. 61, 98 N.E.2D 8, REVERSED. 


OHIO LEVIED AN AD VALOREM PERSONAL PROPERTY TAX ON ALL THE BOATS AND
BARGES OWNED BY APPELLANT, AN OHIO CORPORATION, AND EMPLOYED IN
TRANSPORTING OIL ALONG THE MISSISSIPPI AND OHIO RIVERS.  THE MAIN
TERMINALS ARE IN TENNESSEE, INDIANA, KENTUCKY AND LOUISIANA.  THE
VESSELS ARE REGISTERED IN CINCINNATI; BUT THEY NEITHER PICK UP NOR
DISCHARGE OIL IN OHIO, THEY STOP IN OHIO ONLY FOR OCCASIONAL FUEL OR
REPAIRS, THEY TRAVERSE A MAXIMUM OF ONLY 17 1/2 MILES OF WATERS
BORDERING OHIO, AND THEY WERE ALMOST CONTINUOUSLY OUTSIDE OHIO DURING
THE TAXABLE YEAR.  HELD:  SINCE THE VESSELS WOULD BE SUBJECT TO
TAXATION ON AN APPORTIONMENT BASIS IN SEVERAL OTHER STATES, THE OHIO
TAX ON THEIR FULL VALUE VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 382-385. 

STANDARD OIL CO. V. PECK, TAX COMMISSIONER, ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

THE SUPREME COURT OF OHIO SUSTAINED AN AD VALOREM TAX ON THE ENTIRE
VALUE OF APPELLANT'S BOATS AND BARGES EMPLOYED IN INTERSTATE COMMERCE. 
155 OHIO ST. 61, 98 N.E. 2D 8.  ON APPEAL TO THIS COURT, REVERSED, P.
385. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLANT, AN OHIO CORPORATION, OWNS BOATS AND BARGES WHICH IT
EMPLOYS FOR THE TRANSPORTATION OF OIL ALONG THE MISSISSIPPI AND OHIO
RIVERS.  THE VESSELS NEITHER PICK UP OIL NOR DISCHARGE IT IN OHIO.  THE
MAIN TERMINALS ARE IN TENNESSEE, INDIANA, KENTUCKY, AND LOUISIANA.  THE
MAXIMUM RIVER MILEAGE TRAVERSED BY THE BOATS AND BARGES ON ANY TRIP
THROUGH WATERS BORDERING OHIO WAS 17 1/2 MILES.  THESE 17 1/2 MILES
WERE IN THE SECTION OF THE OHIO RIVER WHICH HAD TO BE TRAVERSED TO
REACH BROMLEY, KENTUCKY.  WHILE THIS STRETCH OF WATER BORDERED OHIO, IT
WAS NOT NECESSARILY WITHIN OHIO.  THE VESSELS WERE REGISTERED IN
CINCINNATI, OHIO, BUT ONLY STOPPED IN OHIO FOR OCCASIONAL FUEL OR
REPAIRS.  THESE STOPS WERE MADE AT CINCINNATI; BUT NONE OF THEM
INVOLVED LOADING OR UNLOADING CARGO. 

THE TAX COMMISSIONER OF OHIO, ACTING UNDER SECS. 5325 AND 5328 OF THE
OHIO GENERAL CODE, LEVIED AN AD VALOREM PERSONAL PROPERTY TAX ON ALL OF
THESE VESSELS.  THE BOARD OF TAX APPEALS AFFIRMED (WITH AN EXCEPTION
NOT MATERIAL HERE), AND THE SUPREME COURT OF OHIO SUSTAINED THE BOARD,
155 OHIO ST. 61, 98 N.E. 2D 8, OVER THE OBJECTION THAT THE TAX VIOLATED
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE CASE IS HERE
ON APPEAL.  28 U.S.C. SEC. 1257(2). 

UNDER THE EARLIER VIEW GOVERNING THE TAXABILITY OF VESSELS MOVING IN
THE INLAND WATERS (ST. LOUIS V. FERRY CO., 11 WALL.  423; AYER & LORD
TIE CO. V. KENTUCKY, 202 U.S. 409; CF. OLD DOMINION S.S. CO. V.
VIRGINIA, 198 U.S. 299), OHIO, THE STATE OF THE DOMICILE, WOULD HAVE A
STRONG CLAIM TO THE WHOLE OF THE TAX THAT HAS BEEN LEVIED.  BUT THE
RATIONALE OF THOSE CASES WAS REJECTED IN OTT V. MISSISSIPPI BARGE LINE
CO., 336 U.S. 169, WHERE WE HELD THAT VESSELS MOVING IN INTERSTATE
OPERATIONS ALONG THE INLAND WATERS WERE TAXABLE BY THE SAME STANDARDS
AS THOSE WHICH PULLMAN'S CAR CO. V. PENNSYLVANIA, 141 U.S. 18, FIRST
APPLIED TO RAILROAD CARS IN INTERSTATE COMMERCE.  THE FORMULA APPROVED
WAS ONE WHICH FAIRLY APPORTIONED THE TAX TO THE COMMERCE CARRIED ON
WITHIN THE STATE.  IN THAT WAY WE PLACED INLAND WATER TRANSPORTATION ON
THE SAME CONSTITUTIONAL FOOTING AS OTHER INTERSTATE ENTERPRISES. 

THE OTT CASE INVOLVED A TAX BY LOUSISIANA ON VESSELS OF A FOREIGN
CORPORATION OPERATING IN LOUISIANA WATERS.  LOUISIANA SOUGHT TO TAX
ONLY THAT PORTION OF THE VALUE OF THE VESSELS REPRESENTED BY THE RATIO
BETWEEN THE TOTAL NUMBER OF MILES IN LOUISIANA AND THE TOTAL NUMBER OF
MILES IN THE ENTIRE OPERATION.  THE PRESENT CASE IS SOUGHT TO BE
DISTINGUISHED ON THE GROUND THAT OHIO IS THE DOMICILIARY STATE AND
THEREFORE MAY TAX THE WHOLE VALUE EVEN THOUGH THE BOATS AND BARGES
OPERATE OUTSIDE OHIO.  NEW YORK CENTRAL R. CO. V. MILLER, 202 U.S. 584,
SUSTAINED A TAX BY THE DOMICILIARY STATE ON ALL THE ROLLING STOCK OF A
RAILROAD.  BUT IN THAT CASE IT DID NOT APPEAR THAT "ANY SPECIFIC CARS
OR ANY AVERAGE OF CARS" WAS SO CONTINUOUSLY IN ANOTHER STATE AS TO BE
TAXABLE THERE.  P. 597.  NORTHWEST AIRLINES, INC. V. MINNESOTA, 322
U.S. 292, ALLOWED THE DOMICILIARY STATE TO TAX THE ENTIRE FLEET OF
AIRPLANES OPERATING INTERSTATE; BUT IN THAT CASE, AS IN THE MILLER
CASE, IT WAS NOT SHOWN THAT "A DEFINED PART OF THE DOMICILIARY CORPUS"
HAD ACQUIRED A TAXABLE SITUS ELSEWHERE.  P. 295.  THOSE CASES, THOUGH
EXCEPTIONAL ON THEIR FACTS, ILLUSTRATE THE REACH OF THE TAXING POWER OF
THE STATE OF THE DOMICILE AS CONTRASTED TO THAT OF THE OTHER STATES. 
BUT THEY HAVE NO APPLICATION HERE SINCE MOST, IF NOT ALL, OF THE BARGES
AND BOATS WHICH OHIO HAS TAXED WERE ALMOST CONTINUOUSLY OUTSIDE OHIO
DURING THE TAXABLE YEAR.  NO ONE VESSEL MAY HAVE BEEN CONTINUOUSLY IN
ANOTHER STATE DURING THE TAXABLE YEAR.  BUT WE DO KNOW THAT MOST, IF
NOT ALL, OF THEM WERE OPERATING IN OTHER WATERS AND THEREFORE UNDER OTT
V. MISSISSIPPI BARGE LINE CO., SUPRA, COULD BE TAXED BY THE SEVERAL
STATES ON AN APPORTIONMENT BASIS.  THE RULE WHICH PERMITS TAXATION BY
TWO OR MORE STATES ON AN APPORTIONMENT BASIS PRECLUDES TAXATION OF ALL
OF THE PROPERTY BY THE STATE OF THE DOMICILE.  SEE UNION TRANSIT CO. V.
KENTUCKY, 199 U.S. 194.  OTHERWISE THERE WOULD BE MULTIPLE TAXATION OF
INTERSTATE OPERATIONS AND THE TAX WOULD HAVE NO RELATION TO THE
OPPORTUNITIES, BENEFITS, OR PROTECTION WHICH THE TAXING STATE GIVES
THOSE OPERATIONS.  REVERSED. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE MINTON, DISSENTING. 

I ASSUME FOR THE PURPOSES OF THIS DISSENT THAT NONE OF THE VESSELS IN
QUESTION WERE WITHIN OHIO DURING THE TAX YEAR, AND THAT THEY WERE TAXED
TO THEIR FULL VALUE BY OHIO.  THE RECORD SHOWS THAT THE VESSELS WERE
ALL REGISTERED IN CINCINNATI, OHIO, AS THE HOME PORT, AND THAT OHIO IS
THE DOMICILE OF THE OWNER.  OHIO CLAIMS THE RIGHT TO TAX THESE VESSELS
BECAUSE THEY HAVE NOT ACQUIRED A TAX SITUS ELSEWHERE THAN THEIR HOME
PORT AND DOMICILE. 

SEAGOING VESSELS HAVE ALWAYS BEEN TAXABLE AT THE DOMICILE OF THE
OWNER.  SOURTHERN PACIFIC CO. V. KENTUCKY, 222 U.S. 63; MORGAN V.
PARHAM, 16 WALL.  471; HAYS V. PACIFIC MAIL S.S. CO., 17 HOW.  596. 
THIS SAME RULE HAS BEEN APPLIED TO VESSELS ENGAGED IN COMMERCE BETWEEN
THE DIFFERENT STATES.  TRANSPORTATION CO. V. WHEELING, 99 U.S. 273; ST.
LOUIS V. FERRY CO., 11 WALL.  423.  THE ONLY EXCEPTION TO THE RULE
UNTIL TODAY WAS THAT WHERE VESSELS HAD ACQUIRED A SITUS FOR TAXATION IN
SOME OTHER STATE, THAT OTHER STATE MIGHT TAX THEM.  OLD DOMINION S.S.
CO. V. VIRGINIA, 198 U.S. 299.  IN AYER & LORD TIE CO. V. KENTUCKY, 202
U.S. 409, 421, THIS COURT SAID: 

"THE GENERAL RULE HAS LONG BEEN SETTLED AS TO VESSELS PLYING BETWEEN
THE PORTS OF DIFFERENT STATES, ENGAGED IN THE COASTWISE TRADE, THAT THE
DOMICIL OF THE OWNER IS THE SITUS OF A VESSEL FOR THE PURPOSE OF
TAXATION, WHOLLY IRRESPECTIVE OF THE PLACE OF ENROLLMENT, SUBJECT,
HOWEVER, TO THE EXCEPTION THAT WHERE A VESSEL ENGAGED IN INTERSTATE
COMMERCE HAS ACQUIRED AN ACTUAL SITUS IN A STATE OTHER THAN THE PLACE
OF THE DOMICIL OF THE OWNER, IT MAY THERE BE TAXED BECAUSE WITHIN THE
JURISDICTION OF THE TAXING AUTHORITY." 

IN THE CASE AT HAND, THE VESSELS HAD NOT ACQUIRED A SITUS FOR
TAXATION IN ANY OTHER STATE.  THEY WERE AT LARGE IN THE OHIO AND
MISSISSIPPI RIVERS, TOUCHING PORTS THEREIN FROM TIME TO TIME.  THERE
WAS NO SHOWING AS TO HOW MUCH TIME ANY OF THE VESSELS SPENT IN ANY
STATE.  INDEED, THE TIME SPENT IN ANY STATE BY THE VESSELS PLYING THE
MISSISSIPPI RIVER COULD NOT BE SHOWN WITH ANY ACCURACY, AS THE STATES
ON EACH SIDE OWN TO THE MIDDLE OF THE STREAM.*  THE NAVIGATION CHANNEL
MIGHT BE ON EITHER SIDE OF THE CENTER LINE OR RIGHT ON THE CENTER
LINE.  WHO IS TO SAY WHAT STATE THE VESSELS WERE IN? 

*DOUGLAS, BOUNDARIES, AREAS, GEOGRAPHIC CENTERS, AND ALTITUDES OF THE
UNITED STATES AND THE SEVERAL STATES, 2D ED. (U.S. DEPT. OF INTERIOR,
GEOLOGICAL SURVEY BULL.  817). 

THE DOCTRINE OF APPORTIONMENT APPLIED IN OTT V. MISSISSIPPI VALLEY
BARGE LINE CO., 336 U.S. 169, IS NOT IN POINT.  IN THAT CASE THE
DOMICILIARY STATE HAD NOT SOUGHT TO TAX THE VESSELS.  THE TAX WAS
APPROVED IN THE OTT CASE ONLY ON THE ASSURANCE OF THE LOUISIANA
ATTORNEY GENERAL THAT THE TAXING STATUTE "WAS INTENDED TO COVER AND
ACTUALLY COVERS HERE, AN AVERAGE PORTION OF PROPERTY PERMANENTLY WITHIN
THE STATE - AND BY PERMANENTLY IS MEANT THROUGHOUT THE TAXING YEAR." 
IBID., AT 175.  WITHOUT SUCH ASSURANCE THERE WOULD HAVE BEEN NO BASIS
FOR APPLYING THE APPORTIONMENT RULE.  NEW YORK CENTRAL R. CO. V.
MILLER, 202 U.S. 584; PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141
U.S. 18, 26; UNION REFRIGERATOR TRANSIT CO. V. KENTUCKY, 199 U.S. 194,
206. 

THE RECORD IN THIS CASE IS SILENT AS TO WHETHER ANY PROPORTION OF THE
VESSELS WERE IN ANY ONE STATE FOR THE WHOLE OF A TAXABLE YEAR.  THE
RECORD DOES SHOW THAT NO OTHER STATE COLLECTED TAXES ON THE VESSELS FOR
THE YEARS IN QUESTION OR ANY OTHER YEAR.  UNTIL THIS CASE, IT HAS NOT
BEEN THE LAW THAT THE STATE OF THE OWNER'S DOMICILE IS PROHIBITED FROM
TAXING UNDER SUCH CIRCUMSTANCES. 

SOUTHERN PACIFIC CO. V. KENTUCKY, SUPRA, IS A CASE IN POINT.  THERE
THE OWNER OF THE VESSELS WAS A KENTUCKY CORPORATION WHICH OPERATED
BETWEEN VARIOUS COASTAL PORTS.  NONE OF THE VESSELS WERE EVER NEAR
KENTUCKY, BUT KENTUCKY WAS ALLOWED TO TAX THEM BECAUSE IT WAS THE STATE
OF THE OWNER'S DOMICILE.  THE VESSELS WERE IN AND OUT OF OTHER STATES'
PORTS, JUST AS THE INSTANT VESSELS WERE IN AND OUT OF OTHER STATES'
PORTS; BUT THE MERE POSSIBILITY THAT SOME OTHER STATE MIGHT ATTEMPT TO
LEVY AN APPORTIONED TAX ON THE VESSELS WAS NOT PERMITTED TO DESTROY
KENTUCKY'S POWER TO TAX.  THE CRUCIAL FACT WAS THAT THE VESSELS WERE
NOT SHOWN TO HAVE ACQUIRED A TAX SITUS ELSEWHERE. 

AS RECENTLY AS 1944 THIS COURT WOULD SEEM TO HAVE ADDED VITALITY TO
THE DOCTRINE WHICH SHOULD GOVERN THIS CASE.  MINNESOTA HAD TAXED AN
AIRLINE ON THE FULL VALUE OF ITS AIRPLANES, INCLUDING THOSE USED IN
INTERSTATE COMMERCE.  MR. JUSTICE FRANKFURTER, ANNOUNCING THE JUDGMENT
OF THE COURT UPHOLDING THE TAX, STATED: 

"THE FACT THAT NORTHWEST PAID PERSONAL PROPERTY TAXES FOR THE YEAR
1939 UPON 'SOME PROPORTION OF ITS FULL VALUE' OF ITS AIRPLANE FLEET IN
SOME OTHER STATES DOES NOT ABRIDGE THE POWER OF TAXATION OF MINNESOTA
AS THE HOME STATE OF THE FLEET IN THE CIRCUMSTANCES OF THE PRESENT
CASE.  THE TAXABILITY OF ANY PART OF THIS FLEET BY ANY OTHER STATE THAN
MINNESOTA, IN VIEW OF THE TAXABILITY OF THE ENTIRE FLEET BY THAT STATE,
IS NOT NOW BEFORE US.  IT  ...  IS NOT SHOWN HERE THAT A DEFINED PART
OF THE DOMICILIARY CORPUS HAS ACQUIRED A PERMANENT LOCATION, I.E., A
TAXING SITUS, ELSEWHERE."  NORTHWEST AIRLINES V. MINNESOTA, 322 U.S.
292, 295. 

THE FEAR OF "DOUBLE TAXATION" WAS MUCH MORE REAL IN THAT CASE THAN IN
THE INSTANT CASE; YET THE MINNESOTA TAX WAS SUSTAINED BECAUSE THERE WAS
NO SHOWING THAT A TAXING SITUS HAD BEEN ACQUIRED ELSEWHERE.  THE
QUESTION OF WHAT SOME OTHER STATE MIGHT DO IS NO MORE BEFORE THE COURT
IN THIS CASE THAN IT WAS IN THE NORTHWEST CASE. 

THE MAJORITY TODAY SEEKS TO DISTINGUISH THE EARLIER CASES BY
MAGNIFYING THE RELEVANCE OF THE CONTINUOUS ABSENCE OF THE VESSELS FROM
THE DOMICILIARY STATE.  BUT THE OPERATIVE FACT OF THE EARLIER CASES WAS
THE ABSENCE OR PRESENCE OF ANOTHER TAXING SITUS.  WHERE NO OTHER TAXING
SITUS WAS SHOWN TO EXIST, THE STATE OF THE DOMICILE WAS PERMITTED TO
TAX, IRRESPECTIVE OF THE AMOUNT OF TIME THE VESSELS WERE PRESENT IN
THAT STATE.  SOUTHERN PACIFIC CO. V. KENTUCKY, SUPRA. 

AS IT IS ADMITTEDLY NOT SHOWN ON THIS RECORD THAT THESE VESSELS HAVE
ACQUIRED A TAX SITUS ELSEWHERE, OHIO SHOULD BE PERMITTED TO TAX THEM AS
THE STATE OF THE OWNER'S DOMICILE.  I WOULD AFFIRM. 
..END :




















GEORGIA RAILROAD & BANKING CO. V. REDWINE 342 U.S. 299 


NO. 1.  ARGUED FEBRUARY 13, 1950 - CONTINUED FEBRUARY 20, 1950 -
REARGUED NOVEMBER 26, 1951 - DECIDED JANUARY 28, 1952 - 85 F. SUPP.
749, REVERSED AND REMANDED. 


1.  UNDER 28 U.S.C. SEC. 1341, IT CANNOT BE SAID, IN THE CIRCUMSTANCES
OF THIS CASE, THAT ANY OF THE REMEDIES SUGGESTED BY THE ATTORNEY
GENERAL OF GEORGIA AFFORDS APPELLANT THE "PLAIN, SPEEDY AND EFFICIENT
REMEDY" IN THE STATE COURTS NECESSARY TO DEPRIVE THE UNITED STATES
DISTRICT COURT OF JURISDICTION TO ENJOIN THE STATE REVENUE COMMISSIONER
FROM ASSESSING OR COLLECTING AD VALOREM TAXES FROM APPELLANT
CORPORATION CONTRARY TO AN EXEMPTION IN ITS SPECIAL STATE CHARTER AND
IN VIOLATION OF THE PROHIBITION OF THE FEDERAL CONSTITUTION AGAINST A
STATE PASSING ANY LAW IMPAIRING THE OBLIGATION OF CONTRACTS.  PP. 300
303. 

(A)  A SUIT FOR INJUNCTION IN A STATE COURT CANNOT BE SAID TO BE SUCH
A REMEDY, SINCE IT WAS TRIED BY APPELLANT WITHOUT SUCCESS IN MUSGROVE
V. GEORGIA R. CO., 204 GA. 139, 49 S.E.2D 26, APPEAL DISMISSED, 335
U.S. 900.  PP. 301, 303. 

(B)  NOR CAN ARRESTING TAX EXECUTIONS BY AFFIDAVITS OF ILLEGALITY BE
SAID TO BE SUCH A REMEDY WHEN IT WOULD REQUIRE THE FILING OF OVER 300
SEPARATE CLAIMS IN 14 DIFFERENT COUNTIES TO PROTECT THE SINGLE FEDERAL
CLAIM ASSERTED BY APPELLANT.  P. 303. 

(C)  NOR CAN A SUIT AGAINST THE STATE FOR REFUND AFTER PAYMENT OF
TAXES BE SAID TO BE SUCH A REMEDY WHEN IT IS APPLICABLE ONLY TO TAXES
AMOUNTING TO LESS THAN 15% OF THE TOTAL TAXES IN CONTROVERSY.  P. 303. 

(D)  RAISING APPELLANT'S FEDERAL CLAIM IN DEFENSE OF A SUIT BY THE
STATE REVENUE COMMISSIONER TO RECOVER TAXES IS NOT A REMEDY THAT COULD
HAVE BEEN INVOKED BY APPELLANT.  P. 303, N. 11. 

2.  THIS SUIT IN A FEDERAL DISTRICT COURT BY A CORPORATION TO ENJOIN
A STATE REVENUE COMMISSIONER FROM ASSESSING OR COLLECTING AD VALOREM
TAXES FROM THE CORPORATION, CONTRARY TO AN EXEMPTION IN ITS SPECIAL
STATE CHARTER AND IN VIOLATION OF THE PROHIBITION OF THE FEDERAL
CONSTITUTION AGAINST A STATE PASSING ANY LAW IMPAIRING THE OBLIGATION
OF CONTRACTS, IS NOT A SUIT AGAINST THE STATE WHICH CANNOT BE BROUGHT
WITHOUT THE STATE'S CONSENT.  IN RE AYERS, 123 U.S. 443,
DISTINGUISHED.  PP. 303-306. 

GEORGIA RAILROAD & BANKING CO. V. REDWINE, STATE REVENUE COMMISSIONER. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

A THREE-JUDGE FEDERAL DISTRICT COURT DISMISSED APPELLANT'S SUIT TO
ENJOIN A STATE REVENUE COMMISSIONER FROM ASSESSING OR COLLECTING AD
VALOREM TAXES CONTRARY TO AN EXEMPTION IN APPELLANT'S SPECIAL STATE
CHARTER AND THE PROHIBITION OF THE FEDERAL CONSTITUTION AGAINST ANY
STATE LAW IMPAIRING THE OBLIGATION OF CONTRACTS.  85 F. SUPP. 749.  ON
APPEAL TO THIS COURT, REVERSED AND REMANDED, P. 306. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

APPELLANT WAS INCORPORATED IN 1833 BY A SPECIAL ACT OF THE GEORGIA
GENERAL ASSEMBLY THAT INCLUDED A PROVISION FOR EXEMPTION FROM
TAXATION.  (FN1)  IN 1945, THE GEORGIA CONSTITUTION WAS AMENDED TO
PROVIDE THAT "ALL EXEMPTIONS FROM TAXATION HERETOFORE GRANTED IN
CORPORATE CHARTERS ARE DECLARED TO BE HENCEFORTH NULL AND VOID."  (FN2)
ACCORDING TO APPELLANT'S COMPLAINT, APPELLEE, WHO IS STATE REVENUE
COMMISSIONER, IS THREATENING TO ACT PURSUANT TO THIS AMENDMENT BY
PROCEEDING AGAINST APPELLANT FOR THE COLLECTION OF AD VALOREM TAXES FOR
THE YEAR 1939, AND ALL SUBSEQUENT YEARS, ON BEHALF OF THE STATE AND
EVERY COUNTY, SCHOOL DISTRICT AND MUNICIPALITY THROUGH WHICH
APPELLANT'S LINES RUN.  (FN3)  APPELLANT CLAIMS THAT THIS THREATENED
TAXATION WOULD BE CONTRARY TO ITS LEGISLATIVE CHARTER AND WOULD IMPAIR
THE OBLIGATION OF CONTRACT BETWEEN APPELLANT AND THE STATE OF GEORGIA,
CONTRARY TO ARTICLE I, SECTION 10 OF THE FEDERAL CONSTITUTION.  (FN4) 

THIS LATEST PHRASE (FN5) OF APPELLANT'S FREQUENT LITIGATION OVER THE
TAX EXEMPTION PROVISION OF ITS 1833 CHARTER BEGAN WHEN APPELLANT FILED
SUIT AGAINST APPELLEE'S PREDECESSOR IN A GEORGIA STATE COURT SEEKING
INJUNCTIVE AND DECLARATORY RELIEF.  RELIEF WAS DENIED WITHOUT REACHING
THE MERITS OF APPELLANT'S CLAIM WHEN THE GEORGIA SUPREME COURT HELD
THAT THE ACTION WAS, IN EFFECT, AN UNCONSENTED SUIT AGAINST THE STATE
WHICH COULD NOT BE MAINTAINED IN THE STATE COURTS.  MUSGROVE V. GEORGIA
RAILROAD & BANKING CO., 204 GA. 139,  49 S.E.2D 25 (1948).  WE
DISMISSED AN APPEAL FROM THAT JUDGMENT BECAUSE IT WAS BASED UPON A
NONFEDERAL GROUND ADEQUATE TO SUPPORT IT.  335 U.S. 900 (1949). 

THEREAFTER, APPELLANT FILED THIS ACTION IN THE DISTRICT COURT TO
ENJOIN APPELLEE FROM ASSESSING OR COLLECTING AD VALOREM TAXES CONTRARY
TO ITS LEGISLATIVE CHARTER.  APPELLANT ALSO ASKED THAT APPELLEE'S
THREATENED ACTS BE ADJUDGED IN VIOLATION OF A PRIOR DECREE ALSO ENTERED
BY THE COURT BELOW AND AFFIRMED BY THIS COURT.  WRIGHT V. GEORGIA
RAILROAD & BANKING CO., 216 U.S. 420 (1910).  A COURT OF THREE JUDGES
(FN6) DISMISSED APPELLANT'S COMPLAINT FOR WANT OF JURISDICTION, HOLDING
THAT THE STATE OF GEORGIA HAD NOT SUBMITTED ITSELF TO THE JURISDICTION
OF THE COURT SO AS TO BE BARRED BY THE WRIGHT DECREE AND THAT THIS
ACTION AGAINST APPELLEE IS IN EFFECT AN UNCONSENTED SUIT AGAINST THE
STATE PROHIBITED BY THE ELEVENTH AMENDMENT.  (FN7)  85 F. SUPP. 749
(1949). 

THE ATTORNEY GENERAL OF GEORGIA STATED AT THE BAR OF THIS COURT THAT
"PLAIN, SPEEDY AND EFFICIENT" STATE REMEDIES WERE AVAILABLE TO
APPELLANT, PARTICULARLY BY APPEAL FROM AN ASSESSMENT BY APPELLEE.  WE
ORDERED THE CAUSE CONTINUED TO ENABLE APPELLANT TO ASSERT SUCH
REMEDIES.  339 U.S. 901 (1950).  AFTER THE DISTRICT COURT MODIFIED THE
RESTRAINING ORDER WHICH IT HAS ENTERED PENDING APPEAL TO PERMIT
ASSESSMENT, APPELLEE HELD APPELLANT LIABLE FOR THE FULL AD VALOREM TAX
AND APPELLANT APPEALED TO THE STATE COURTS.  THE GEORGIA SUPREME COURT
DISMISSED THE APPEAL FOR WANT OF JURISDICTION, HOLDING THAT SUCH REMEDY
WAS NOT AVAILABLE TO APPELLANT.  GEORGIA RAILROAD & BANKING CO. V.
REDWINE, 208 GA. 261, 66 S.E.2D 234 (1951).  FOLLOWING THIS DECISION,
APPELLANT MOVED FOR TERMINATION OF THE CONTINUANCE OF ITS APPEAL IN
THIS COURT AND WE ORDERED REARGUMENT. 

FIRST.  ON REARGUMENT, THE ATTORNEY GENERAL OF GEORGIA AGAIN
MAINTAINED THAT "PLAIN, SPEEDY AND EFFICIENT" REMEDIES WERE AVAILABLE
TO APPELLANT IN THE STATE COURTS.  IF SO, THE DISTRICT COURT IS WITHOUT
JURISDICTION UNDER 28 U.S.C (SUPP. IV) SEC. 1341.  (FN8) THE REMEDIES
NOW SUGGESTED ARE: (1) SUIT FOR INJUNCTION IN THE SUPERIOR COURT OF
FULTON COUNTY, GEORGIA; (2) ARRESTING TAX EXECUTION BY AFFIDAVITS OF
ILLEGALITY; AND (3) SUING THE STATE FOR REFUND AFTER PAYMENT OF TAXES. 
THE FIRST ROUTE WAS TRIED BY APPELLANT WITHOUT SUCCESS IN THE MUSGROVE
LITIGATION, SUPRA.  THE SECOND REMEDY, THE PRESENT AVAILABILITY OF
WHICH WAS DOUBTED BY THE THREE JUSTICES OF THE GEORGIA SUPREME COURT
THAT CONSIDERED THE MATTER IN THE APPEAL CASE, (FN9) WOULD REQUIRE THE
FILING OF OVER THREE HUNDRED SEPARATE CLAIMS IN FOURTEEN DIFFERENT
COUNTIES TO PROTECT THE SINGLE FEDERAL CLAIM ASSERTED BY APPELLANT. 
(FN10)  THE THIRD REMEDY, SUIT FOR REFUND AFTER PAYMENT, IS APPLICABLE
ONLY TO TAXES PAYABLE DIRECTLY TO THE STATE AND AMOUNTING TO LESS THAN
15% OF THE TOTAL TAXES IN CONTROVERSY.  (FN11)  WE CANNOT SAY THAT THE
REMEDIES SUGGESTED BY THE ATTORNEY GENERAL AFFORD APPELLANT THE "PLAIN,
SPEEDY AND EFFICIENT REMEDY" NECESSARY TO DEPRIVE THE DISTRICT COURT OF
JURISDICTION UNDER 28 U.S.C. (SUPP. IV) SEC. 1341. 

SECOND.  PASSING TO THE JURISDICTION GROUND UPON WHICH THE DISTRICT
COURT RESTED ITS DECISION, WE NOTE THAT THE STATE OF GEORGIA WAS NOT
NAMED AS A PARTY IN THE DISTRICT COURT.  BUT, SINCE APPELLEE IS A STATE
OFFICER, THE COURT BELOW PROPERLY CONSIDERED WHETHER THE RELIEF SOUGHT
AGAINST THE OFFICER IS NOT, IN SUBSTANCE, SOUGHT AGAINST THE
SOVEREIGN.  (FN12)  IF THIS ACTION IS, IN EFFECT, AN UNCONSENTED SUIT
AGAINST THE STATE, THE ACTION IS BARRED.  (FN13) 

THE DISTRICT COURT CHARACTERIZED APPELLANT'S ACTION AS ONE TO ENFORCE
AN ALLEGED CONTRACT WITH THE STATE OF GEORGIA, AND, AS SUCH, A SUIT
AGAINST THE STATE.  BUT APPELLANT'S COMPLAINT IS NOT FRAMED AS A SUIT
FOR SPECIFIC PERFORMANCE.  IT SEEKS TO ENJOIN APPELLEE FROM COLLECTING
TAXES IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FEDERAL
CONSTITUTION.  THIS COURT HAS LONG HELD THAT A SUIT TO RESTRAIN
UNCONSTITUTIONAL ACTION THREATENED BY AN INDIVIDUAL WHO IS A STATE
OFFICER IS NOT A SUIT AGAINST THE STATE.  (FN14)  THESE DECISIONS WERE
REEXAMINED AND REAFFIRMED IN EX PARTE YOUNG, 209 U.S. 123 (1908), AND
HAVE BEEN CONSISTENTLY FOLLOWED TO THE PRESENT DAY.  (FN15)  THIS
GENERAL RULE HAS BEEN APPLIED IN SUITS AGAINST INDIVIDUALS THREATENING
TO ENFORCE ALLEGEDLY UNCONSTITUTIONAL TAXATION, INCLUDING CASES WHERE,
AS HERE, IT IS ALLEGED THAT TAXATION WOULD IMPAIR THE OBLIGATION OF
CONTRACT.  GUNTER V. ATLANTIC COAST LINE R. CO., 200 U.S. 273 (1906);
PENNOYER V. MCCONNAUGHY, 140 U.S. 1 (1891); ALLEN V. BALTIMORE & O.R.
CO., 114 U.S. 311 (1885). 

IN RE AYERS, 123 U.S. 443 (1887), RELIED UPON BELOW, IS NOT A
CONTRARY HOLDING.  IN THAT CASE, COMPLAINANT HAD NOT ALLEGED THAT
OFFICERS THREATENED TO TAX ITS PROPERTY IN VIOLATION OF ITS
CONSTITUTIONAL RIGHTS.  AS A RESULT, THE COURT HELD THE ACTION BARRED
AS ONE IN SUBSTANCE DIRECTED AT THE STATE MERELY TO OBTAIN SPECIFIC
PERFORMANCE OF A CONTRACT WITH THE STATE.  (FN16)  SINCE APPELLANT
SEEKS TO ENJOIN APPELLEE FROM A THREATENED AND ALLEGEDLY
UNCONSTITUTIONAL INVASION OF ITS PROPERTY, WE HOLD THAT THIS ACTION
AGAINST APPELLEE AS AN INDIVIDUAL IS NOT BARRED AS AN UNCONSENTED SUIT
AGAINST THE STATE.  (FN17)  THE STATE IS FREE TO CARRY OUT ITS
FUNCTIONS WITHOUT JUDICIAL INTERFERENCE DIRECTED AT THE SOVEREIGN OR
ITS AGENTS, BUT THIS IMMUNITY FROM FEDERAL JURISDICTION DOES NOT EXTEND
TO INDIVIDUALS WHO ACT AS OFFICERS WITHOUT CONSTITUTIONAL AUTHORITY. 

ACCORDINGLY, WE FIND THAT THE DISTRICT COURT WAS NOT DEPRIVED OF
JURISDICTION IN THIS CASE ON EITHER THE GROUND THAT IT IS A SUIT
AGAINST THE STATE OR THAT "PLAIN, SPEEDY AND EFFICIENT" REMEDIES ARE
AVAILABLE TO APPELLANT IN THE STATE COURTS.  SINCE THE DISTRICT COURT
DID NOT DETERMINE WHETHER APPELLEE WAS BOUND BY THE WRIGHT DECREE AND
DID NOT ADDRESS ITSELF TO THE MERITS OF APPELLANT'S CLAIM, WE DO NOT
PASS UPON THESE QUESTIONS BUT REMAND THE CASE TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS.  REVERSED AND REMANDED. 

FN1  GA. LAWS 1833, PP. 256, 264. 

FN2  GA. CONST., ART. I, SEC. III, PAR. III.  SEE GA. LAWS 1945, NO.
34, PP. 8, 14. 

FN3  GA. CODE ANN., 1937, CC. 92-26, 92-27, 92-28, AS AMENDED,
CONTAINS THE TAXATION PROVISIONS WHICH APPELLEE IS ALLEGEDLY
THREATENING TO INVOKE AGAINST APPELLANT. 

FN4  "NO STATE SHALL  ...  PASS ANY BILL OF ATTAINDER, EX POST FACTO
LAW, OR LAW IMPAIRING THE OBLIGATION OF CONTRACTS,  ...  ."  U.S.
CONST., ART. I, SEC. 10, CL. 1. 

FN5  THE CASES CONCERNING THIS EXEMPTION THAT HAVE REACHED THIS COURT
ARE COLLECTED IN ATLANTIC COAST LINE R. CO. V. PHILLIPS, 332 U.S. 168,
173 (1947). 

FN6  REQUIRED UNDER 28 U.S.C. (SUPP. IV) SECS. 2281, 2284.  QUERY V.
UNITED STATES, 316 U.S. 486 (1942). 

FN7  "THE JUDICIAL POWER OF THE UNITED STATES SHALL NOT BE CONSTRUED
TO EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED AGAINST
ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER STATE, OR BY CITIZENS
OR SUBJECTS OF ANY FOREIGN STATE."  U.S. CONST., AMEND. XI. 

FN8  "THE DISTRICT COURTS SHALL NOT ENJOIN, SUSPEND OR RESTRAIN THE
ASSESSMENT, LEVY OR COLLECTION OF ANY TAX UNDER STATE LAW WHERE A
PLAIN, SPEEDY AND EFFICIENT REMEDY MAY BE HAD IN THE COURTS OF SUCH
STATE." 

FN9  208 GA. AT 272, 66 S.E.2D AT 241. 

FN10  COMPARE GREENE V. LOUISVILLE & INTERURBAN R. CO., 244 U.S. 499,
520 (1917), WITH MATTHEWS V. RODGERS, 284 U.S. 521, 529-530 (1932). 
SEE ALSO GRAVES V. TEXAS CO., 298 U.S. 393, 403 (1936). 

FN11  AN ADEQUATE REMEDY AS TO ONLY A PORTION OF THE TAXES IN
CONTROVERSY DOES NOT DEPRIVE THE FEDERAL COURT OF JURISDICTION OVER THE
ENTIRE CONTROVERSY.  GREENE V. LOUISVILLE & INTERURBAN R. CO., NOTE 10,
SUPRA.  SEE HILLSBOROUGH V. CROMWELL, 326 U.S. 620, 629 (1946). 

IT WAS ALSO SUGGESTED THAT APPELLANT'S FEDERAL CLAIM COULD BE RAISED
IN DEFENSE TO A SUIT BROUGHT BY APPELLEE TO RECOVER TAXES, BUT THIS IS
HARDLY A REMEDY THAT COULD HAVE BEEN INVOKED BY APPELLANT. 

FN12  LARSON V. DOMESTIC & FOREIGN COMMERCE CORP., 337 U.S. 682, 687
688 (1949); IN RE AYERS, 123 U.S. 443 (1887). 

FN13  APPELLANT IS INCORPORATED IN GEORGIA AND A SUIT BY IT AGAINST
THE STATE OF GEORGIA IS NOT EXPRESSLY BARRED BY THE LANGUAGE OF THE
ELEVENTH AMENDMENT.  NEVERTHELESS, A FEDERAL COURT MAY NOT ENTERTAIN
THE ACTION IF IT IS A SUIT AGAINST THE STATE.  HANS V. LOUISIANA, 134
U.S. 1 (1890). 

FN14  GUNTER V. ATLANTIC COAST LINE R. CO., 200 U.S. 273 (1906);
PROUT V. STARR, 188 U.S. 537 (1903); SMYTH V. AMES, 169 U.S. 466, 518
519 (1898); TINDAL V. WESLEY, 167 U.S. 204 (1897); REAGAN V. FARMERS'
LOAN & TRUST CO., 154 U.S. 362 (1894); PENNOYER V. MCCONNAUGHY, 140
U.S. 1 (1891), AND NUMEROUS CASES CITED THEREIN. 

FN15  ALABAMA COMM'N V. SOUTHERN R. CO., 341 U.S. 341, 344 (1951);
STERLING V. CONSTANTIN, 287 U.S. 378, 393 (1932), AND CASES CITED
THEREIN; GREENE V. LOUISVILLE & INTERURBAN R. CO., NOTE 10, SUPRA, AT
507, AND CASES CITED THEREIN.  SEE LARSON V. DOMESTIC & FOREIGN
COMMERCE CORP., NOTE 12, SUPRA, AT 690-691, 704. 

APPELLANT IN THIS CASE MERELY SEEKS THE CESSATION OF APPELLEE'S
ALLEGEDLY UNCONSTITUTIONAL CONDUCT AND DOES NOT REQUEST AFFIRMATIVE
ACTION BY THE STATE.  COMPARE FORD MOTOR CO. V. DEPARTMENT OF TREASURY,
323 U.S. 459, 462-463 (1945); GREAT NORTHERN INS. CO. V. READ, 322 U.S.
47, 50-51 (1944); NORTH CAROLINA V. TEMPLE, 134 U.S. 22 (1890); HAGOOD
V. SOUTHERN, 177 U.S. 52 (1886). 

FN16  THAT THERE IS NO INCONSISTENCY BETWEEN THE DECISION IN AYERS
AND THE CASES ABOVE CITED IS SHOWN BY THE CAREFUL DIFFERENTIATION OF
ALLEN V. BALTIMORE & O.R. CO., SUPRA, AN OPINION ALSO WRITTEN BY MR.
JUSTICE MATTHEWS.  SEE ALSO PENNOYER V. MCCONNAUGHY, NOTE 14, SUPRA. 

FN17  THE FACT THAT THE GEORGIA SUPREME COURT HAS CONSIDERED THAT
APPELLEE ACTS WITH OFFICIAL IMMUNITY DOES NOT, OF COURSE, IMPART
IMMUNITY FROM RESPONSIBILITY TO THE SUPREME FEDERAL AUTHORITY.  EX
PARTE YOUNG, SUPRA, AT 167.  SEE ALSO GRAVES V. TEXAS CO., NOTE 10,
SUPRA, AT 403-404. 

WE DO NOT FIND IT NECESSARY TO CONSIDER WHETHER THE STATE OF GEORGIA
HAD SUBMITTED ITSELF TO THE JURISDICTION OF THE DISTRICT COURT IN THE
WRIGHT LITIGATION.  UNLIKE GUNTER V. ATLANTIC COAST LINE R. CO., SUPRA,
WHERE ADDITIONAL PARTIES WERE BROUGHT INTO THE SECOND ACTION, APPELLANT
HAS LIMITED ITS COMPLAINT TO A REQUEST FOR RELIEF AGAINST APPELLEE
ALONE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IT IS MY VIEW THAT APPELLANT'S SUIT IS IN REALITY AGAINST THE STATE
OF GEORGIA TO ENJOIN A BREACH OF CONTRACT.  IT IS THE SAME CONTRACT
THAT WAS INVOLVED IN WRIGHT V. GEORGIA R. & BANKING CO., 216 U.S. 420. 
IN THAT CASE THE COURT HELD THAT THE CONTRACT CLAUSE OF THE
CONSTITUTION BARRED GEORGIA FROM BREACHING HER AGREEMENT GRANTING
APPELLANT TAX IMMUNITY BY LEGISLATIVE ACT. 

THE SUIT IN THE WRIGHT CASE WAS AGAINST A STATE OFFICER.  BUT THE
ATTORNEY GENERAL APPEARED AND DEFENDED THE CASE ON THE MERITS.  IT IS
CLEAR TO ME THAT THE ATTORNEY GENERAL REPRESENTED AND SPOKE FOR THE
INTERESTS OF GEORGIA IN THE LOWER COURT AND IN THIS COURT.  THE GEORGIA
CONSTITUTION AND STATUTES AUTHORIZED THE GOVERNOR TO ALLOW THE ATTORNEY
GENERAL TO DEFEND SUITS INVOLVING THE STATE'S INTERESTS.  SEE GA. CODE
OF 1895, SECS. 23, 220; GA.  CONST. OF 1877, ART. VI, SEC. X, PAR. II.
THE DECREE THAT WAS ENTERED ADJUDICATED THE RIGHTS OF GEORGIA,
DECLARING HER BOUND BY THE CONTRACT, STATING THAT THE ACTS OF THE
GEORGIA LEGISLATURE INVOLVED IN THE LITIGATION WERE "A VALID AND
BINDING CONTRACT BETWEEN THE STATE OF GEORGIA" AND THE PRESENT
APPELLANT.  THERE WERE NO SPECIAL CIRCUMSTANCES, AS IN LAND V. DOLLAR,
330 U.S. 731, THAT WOULD KEEP THE SUIT FROM BEING RES JUDICATA AGAINST
THE STATE.    I WOULD CONCLUDE THAT GEORGIA IS BOUND BY THE DECREE IN
THE WRIGHT CASE.  THEREFORE, RELIEF IS NOW AVAILABLE IN THE FORM OF AN
ANCILLARY EXERCISE OF THE DISTRICT COURT'S EQUITY JURISDICTION TO
PROTECT APPELLANT'S RIGHTS SECURED UNDER THE PRIOR DECREE.  GUNTER V.
ATLANTIC COAST LINE, 200 U.S. 273. 
..END :


















GUESSEFELDT V. MCGRATH 342 U.S. 308 


NO. 204.  ARGUED NOVEMBER 29, 1951 - DECIDED JANUARY 28, 1952 - 88 U.S.
APP. D.C. 383, 191 F.2D 639, REVERSED. 


PETITIONER SUED UNDER SEC. 9(A) OF THE TRADING WITH THE ENEMY ACT, AS
AMENDED, TO RECOVER PROPERTY VESTED BY THE ALIEN PROPERTY CUSTODIAN. 
HE ALLEGED THAT:  HE IS A GERMAN CITIZEN WHO HAD LIVED CONTINUOUSLY IN
HAWAII FROM 1896 TO 1938.  IN APRIL, 1938, HE TOOK HIS FAMILY TO
GERMANY FOR A VACATION.  AFTER THE OUTBREAK OF WAR, HE WAS UNABLE TO
SECURE PASSAGE HOME BEFORE MARCH, 1940, WHEN HIS RE-ENTRY PERMIT
EXPIRED.  WHEN THE UNITED STATES ENTERED THE WAR, HE WAS DETAINED
INVOLUNTARILY IN GERMANY, FIRST BY THE GERMANS AND LATER BY THE
RUSSIANS, UNTIL JULY, 1949, WHEN HE RETURNED TO THIS COUNTRY.  HE HAD
DONE NOTHING DIRECTLY OR INDIRECTLY TO AID THE WAR EFFORT OF THE
ENEMY.  HELD:

1.  PETITIONER WAS NOT "RESIDENT WITHIN" GERMANY WITHIN THE MEANING
OF THE DEFINITION OF "ENEMY" IN SEC. 2 AND, THEREFORE, WAS "NOT AN
ENEMY" WITHIN THE MEANING OF SEC. 9(A), AUTHORIZING A SUIT BY ANY
PERSON "NOT AN ENEMY" TO RECOVER PROPERTY VESTED BY THE ALIEN PROPERTY
CUSTODIAN.  PP. 311-312. 

2.  PROPERLY CONSTRUED IN THE LIGHT OF ITS PURPOSES, ITS LEGISLATIVE
HISTORY, AND THE CONSTITUTIONAL ISSUES WHICH OTHERWISE WOULD BE RAISED,
SEC. 39, FORBIDDING THE RETURN OF PROPERTY OF ANY "NATIONAL" OF GERMANY
OR JAPAN VESTED IN THE GOVERNMENT AT ANY TIME AFTER DECEMBER 17, 1941,
APPLIES ONLY TO THOSE GERMAN AND JAPANESE NATIONALS OTHERWISE
INELIGIBLE TO BRING SUIT UNDER SEC. 9(A).  PP. 312-320. 

GUESSEFELDT V. MCGRATH, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN
PROPERTY CUSTODIAN, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE DISTRICT COURT DISMISSED PETITIONER'S SUIT UNDER SEC. 9(A) OF THE
TRADING WITH THE ENEMY ACT, AS AMENDED, 50 U.S.C. APP. SEC. 1 ET SEQ.,
TO RECOVER PROPERTY VESTED BY THE ALIEN PROPERTY CUSTODIAN.  89 F.
SUPP. 344.  THE COURT OF APPEALS AFFIRMED.  88 U.S. APP. D.C. 383, 191
F.2D 639.  THIS COURT GRANTED CERTIORARI.  342 U.S. 810.  REVERSED, P.
320. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A CASE BROUGHT UNDER SEC. 9(A) OF THE TRADING WITH THE ENEMY
ACT, 40 STAT. 411, AS AMENDED, 50 U.S.C. APP. SEC. 1 ET SEQ., (FN1) TO
RECOVER PROPERTY VESTED BY THE ALIEN PROPERTY CUSTODIAN.  THE DISTRICT
COURT GRANTED THE GOVERNMENT'S MOTION TO DISMISS, HOLDING THAT
PLAINTIFF, WHILE NOT "RESIDENT WITHIN" GERMANY WITHIN THE MEANING OF
SEC. 2 OF THE ACT, AND THUS "NOT AN ENEMY" FOR THE PURPOSES OF SEC.
9(A), WAS PRECLUDED FROM RECOVERING BY SEC. 39 WHICH PROVIDES THAT "NO
PROPERTY  ...  OF GERMANY, JAPAN, OR ANY NATIONAL OF EITHER SUCH
COUNTRY VESTED IN  ...  THE GOVERNMENT ...  PURSUANT TO THE PROVISIONS
OF THIS ACT, SHALL BE RETURNED TO FORMER OWNERS THEREOF ...  ."  62
STAT. 1240, 1246, 50 U.S.C. APP. (SUPP. IV, 1946) SEC. 39.  (FN2)  89
F. SUPP. 344.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT AFFIRMED.  88 U.S. APP. D.C. 383, 191 F.2D 639.  WE BROUGHT THE
CASE HERE FOR CLARIFICATION OF THE RESTRICTIONS IMPOSED BY AND THE
REMEDIES OPEN UNDER THE TRADING WITH THE ENEMY ACT.  342 U.S. 810. 

ACCEPTING THE ALLEGATIONS AS TRUE FOR THE PURPOSE OF DEALING WITH THE
LEGAL ISSUES RAISED BY THE MOTIONS TO DISMISS, THE SITUATION BEFORE US
MAY BE BRIEFLY STATED.  GUESSEFELDT, A GERMAN CITIZEN, LIVED
CONTINUOUSLY IN HAWAII FROM 1896 TO 1938.  IN APRIL OF THAT YEAR HE
TOOK HIS FAMILY TO GERMANY FOR A VACATION.  AFTER THE OUTBREAK OF WAR,
HE WAS UNABLE TO SECURE PASSAGE HOME BEFORE MARCH, 1940, WHEN HIS RE
ENTRY PERMIT EXPIRED.  WHEN THE UNITED STATES ENTERED THE WAR, HE WAS
INVOLUNTARILY DETAINED IN GERMANY, FIRST BY THE GERMANS AND AFTER 1945
BY THE RUSSIANS, UNTIL JULY, 1949, WHEN HE RETURNED TO THIS COUNTRY. 
DURING THAT TIME HE DID NOTHING DIRECTLY OR INDIRECTLY TO AID THE WAR
EFFORT OF THE ENEMY. 

THE FIRST QUESTION TO BE DECIDED IS WHETHER THE CLAIMANT WAS
"RESIDENT WITHIN" THE TERRITORY OF A NATION WITH WHICH THIS COUNTRY WAS
AT WAR WITHIN THE MEANING OF SECS. 2 AND 9(A) OF THE TRADING WITH THE
ENEMY ACT.  HE WAS PHYSICALLY WITHIN THE ENEMY'S TERRITORY.  HE
CONTENDS, HOWEVER, THAT THE MEANING CONVEYED BY "RESIDENT WITHIN" IS
SOMETHING MORE THAN MERE PRESENCE; AT THE LEAST A DOMICILIARY
CONNOTATION, IF NOT DOMICILE, IS IMPLIED. 

LEGISLATIVE HISTORY LEAVES THE MEANING SHROUDED.  SOME USE OF THE
TERM "DOMICILE" AS THE TOUCHSTONE OF ENEMY STATUS IS TO BE FOUND IN THE
CONGRESSIONAL HEARINGS AND REPORTS.  (FN3)  BUT ON THE FLOOR,
REPRESENTATIVE MONTAGUE, ONE OF THE MANAGERS OF THE BILL, UNEQUIVOCALLY
STATED UNDER CLOSE QUESTIONING THAT THE STATUTORY LANGUAGE WAS INTENDED
TO COVER MUCH MORE THAN THOSE DOMICILED IN ENEMY NATIONS.  YET
PRISONERS OF WAR, EXPEDITIONARY FORCES AND "SOJOURNERS" WERE NOT, HE
SAID, INTENDED TO BE INCLUDED.  55 CONG. REC. 4922.  (FN4) 

GUESSEFELDT RETAINED HIS AMERICAN DOMICILE.  MOREOVER, IF ANYTHING
MORE THAN MERE PHYSICAL PRESENCE IN ENEMY TERRITORY IS REQUIRED, IT
WOULD SEEM CLEAR THAT HE WAS NOT AN "ENEMY" WITHIN THE MEANING OF SEC.
2.  HIS STAY BEFORE THE WAR, AS A MATTER OF CHOICE, WAS SHORT.  THE
CIRCUMSTANCES NEGATIVE ANY DESIRE FOR A PERMANENT OR LONG-TERM
CONNECTION WITH GERMANY.  HE INTENDED, AND INDEED ATTEMPTED, TO LEAVE
THERE BEFORE THIS COUNTRY ENTERED THE WAR.  BEING THERE UNDER PHYSICAL
CONSTRAINT, HE IS ALMOST LITERALLY WITHIN THE EXCEPTED CLASS AS
AUTHORITATIVELY INDICATED BY MR. MONTAGUE.  TO HOLD THAT "RESIDENT
WITHIN" ENEMY TERRITORY IMPLIES SOMETHING MORE THAN MERE PHYSICAL
PRESENCE AND SOMETHING LESS THAN DOMICILE IS CONSISTENT WITH THE
EMANATIONS OF CONGRESSIONAL PURPOSE MANIFESTED IN THE ENTIRE ACT, AND
THE RELEVANT EXTRINSIC LIGHT, INCLUDING THE DECISIONS OF LOWER COURTS
ON THIS ISSUE, WHICH WE NOTE WITHOUT SPECIFICALLY APPROVING ANY OF
THEM.  SEE MCGRATH V. ZANDER, 85 U.S. APP. D.C. 344, 177 F.2D 649;
JOSEPHBERG V. MARKHAM, 152 F.2D 644; STADTMULLER V. MILLER, 11 F.2D
732; VOWINCKEL V. FIRST FEDERAL TRUST CO., 10 F.2D 19; SARTHOU V.
CLARK, 78 F. SUPP. 139. 

GUESSEFELDT HAS THE FURTHER OBSTACLE OF SEC. 39 TO CLEAR BEFORE HE
CAN SUCCEED.  CONGRESS IN 1948, SO THE GOVERNMENT'S ARGUMENT RUNS,
ADOPTED A "POLICY OF NONRETURN," (FN5) AND PROHIBITED THE RESTORATION
OF VESTED PROPERTY TO A "NATIONAL" OF GERMANY.  A CITIZEN IS A
NATIONAL, AND GUESSEFELDT IS A GERMAN CITIZEN.  THUS, EVEN THOUGH HE
MAY, BEFORE THE ENACTMENT OF SEC. 39, HAVE BEEN ENTITLED TO BRING SUIT
AS A NONENEMY UNDER SEC. 9(A), THAT PRIVILEGE HAS SINCE BEEN CUT OFF. 
TO WHICH GUESSEFELDT COUNTERS THAT SEC. 39 MUST BE CONSTRUED
HARMONIOUSLY WITH SEC. 9(A); THE TERM "NATIONAL" IN THE NEW SECTION
MUST ACCORDINGLY BE TAKEN TO MEAN ONLY THOSE GERMAN AND JAPANESE
CITIZENS WHO COULD NOT THERETOFORE HAVE ENFORCED THE RETURN OF THEIR
PROPERTY AS OF RIGHT.  SECTION 39, IN THE CONTEXT OF ITS LEGISLATIVE
HISTORY AND IN THE LIGHT OF THE SCHEME AND BACKGROUND OF THE STATUTE,
MAKES THE GOVERNMENT'S CONTENTION UNPERSUASIVE. 

IT IS CLEAR THAT THE CUSTODIAN CAN LAWFULLY VEST UNDER SEC. 5 A GOOD
DEAL MORE THAN HE CAN HOLD AGAINST A SEC. 9(A) ACTION.  CENTRAL UNION
TRUST CO. V. GARVAN, 254 U.S. 554; CLARK V. UEBERSEE FINANZ-KORP., 332
U.S. 480.  THUS CONGRESS HAD TO MAKE PROVISION FOR THE DISPOSAL OF TWO
CLASSES OF VESTED PROPERTY.  NONENEMY PROPERTY, LAWFULLY VESTED UNDER
SEC. 5, WAS RECOVERABLE IN A SUIT AGAINST THE CUSTODIAN.  SEC. 9(A);
SEE BECKER STEEL CO. V. CUMMINGS, 296 U.S. 74.  THE SECOND CLASS,
PROPERTY OWNED BY "ENEMIES" AND THEREFORE NOT SUBJECT TO RECOVERY UNDER
SEC. 9(A), WAS RESERVED FOR DISPOSITION "AFTER THE END OF THE WAR  ...
AS CONGRESS SHALL DIRECT."  40 STAT. 411, 423, 50 U.S.C. APP. SEC. 12. 

AFTER BOTH WARS, CONGRESS DID ADOPT MEASURES TO DISPOSE OF THIS
PROPERTY.  THE TREATY OF BERLIN, 42 STAT. 1939, 1940, AT THE END OF
WORLD WAR I, CONFIRMED THE POSSESSION OF VESTED ENEMY PROPERTY BY THE
UNITED STATES.  JUNKERS V. CHEMICAL FOUNDATION, INC., 287 F. 597; LANGE
V. WINGRAVE, 295 F. 565; KLEIN V. PALMER, 18 F.2D 932.  FOR PRESENT
PURPOSES IT DOES NOT MATTER WHETHER THIS ACTION WAS TAKEN SIMPLY TO
SECURE CLAIMS OF AMERICAN CITIZENS AGAINST GERMANY OR WAS REGARDED AS
THE RIGHTFUL WITHHOLDING OF SPOILS OF WAR.  IN THE SETTLEMENT OF WAR
CLAIMS ACT OF 1928, 45 STAT. 254, 270, 50 U.S.C. APP. SECS. 9(B)(12),
(13), (14), (16), 9(M), CONGRESS PROVIDED FOR THE RETURN TO ADMITTEDLY
ENEMY OWNERS OF 80% OF THEIR VESTED PROPERTY.  SEE CUMMINGS V. DEUTSCHE
BANK, 300 U.S. 115.  (FN6) SECTION 32 OF THE TRADING WITH THE ENEMY
ACT, 60 STAT. 50, AS AMENDED, 50 U.S.C. APP. (SUPP. IV, 1946) SEC. 32,
ENACTED AFTER WORLD WAR II, PROVIDED FOR ADMINISTRATIVE RETURNS OF
PROPERTY TO CERTAIN CLASSES OF "TECHNICAL" ENEMIES WHO WERE INELIGIBLE
TO BRING SUIT UNDER SEC. 9(A).  THUS, IF SEC. 39 IS TREATED AS DEALING
ONLY WITH PROPERTY NOT OTHERWISE SUBJECT TO RECOVERY, THE CONSISTENCY
OF THE PATTERN OF ENACTMENT IS PRESERVED.  ON THE OTHER HAND, IF THE
SIGNIFICANT LANGUAGE OF THE SECTION IS REGARDED AS REQUIRING THE
RETENTION OF PROPERTY WHICH WOULD OTHERWISE BE RECOVERABLE IN A SUIT
UNDER SEC. 9(A), IT WOULD MARK THE FIRST DEPARTURE FROM WHAT APPEARS TO
BE A HERETOFORE CONSISTENT CONGRESSIONAL POLICY. 

ON THE PROBLEM OF COMPENSATING AMERICAN PRISONERS OF WAR, INTERNEES AND
OTHERS WHO SUFFERED PERSONAL INJURY OR PROPERTY DAMAGE AT THE HANDS OF
WORLD WAR II ENEMIES.  CONGRESSIONAL ATTENTION WAS FOCUSED ON THE
NATURE AND EXTENT OF THESE CLAIMS AND METHODS OF ADJUDICATING THEM. 
THE ISSUES INVOLVED IN SEC. 39 WERE OF PERIPHERAL CONCERN.  READING THE
LEGISLATIVE HISTORY IN THIS LIGHT, IT LENDS SUPPORT TO THE VIEW THAT
SEC. 39 WAS CONCEIVED AS DEALING WITH PROPERTY NOT OTHERWISE SUBJECT TO
RETURN.  SENATE HEARINGS OPENED WITH DETAILED TESTIMONY ANALYZING THE
VALUE OF ASSETS WHICH WOULD BE LEFT AFTER PAYMENTS FOR ADMINISTRATION
AND LIQUIDATION, RETURNS UNDER SEC. 32, AND DISBURSEMENTS IN
SATISFACTION OF JUDGMENTS IN SUITS BROUGHT UNDER SEC. 9(A).  HEARINGS
BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY ON H.R.
4044, 80TH CONG., 2D SESS. 12-21.  SEE ALSO ID., AT 44, AND HEARINGS
BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R.
873, 80TH CONG., 1ST SESS. 264.  IT SEEMS CLEAR THAT THE LEGISLATION
LOOKS TO THE DISPOSITION OF THIS FUND, AND THE CONCLUSION IS REINFORCED
BY THE PROVISION OF THE SECTION THAT "THE NET PROCEEDS REMAINING UPON
THE COMPLETION OF ADMINISTRATION, LIQUIDATION, AND DISPOSITION PURSUANT
TO THE PROVISIONS OF THIS ACT OF ANY SUCH PROPERTY OR INTEREST THEREIN
SHALL BE COVERED INTO THE TREASURY AT THE EARLIEST PRACTICABLE DATE." 

THE TENOR OF THE HEARINGS DEMONSTRATES NO PURPOSE TO CHANGE THE
EXISTING SCOPE OF SEC. 9(A).  THE ONLY REASON A PROVISO TO THAT EFFECT
WAS NOT INCLUDED IN SEC. 39 AS PASSED SEEMS TO BE AN ASSUMPTION -
UNWARRANTED IN THE LIGHT OF OTHER EVIDENCE BEFORE THE COMMITTEES
DISCUSSED BELOW - THAT A NATIONAL OF ANY ENEMY NATION HAD NO RIGHTS
UNDER SEC. 9(A) IN ANY CASE.  (FN7)  INDEED, THE TERMS "ENEMY," "ENEMY
ALIEN," "ENEMY NATIONAL," AND "GERMAN OR JAPANESE NATIONAL" ARE USED
INTERCHANGEABLY IN THE HEARINGS, NOT ONLY BY COMMITTEE MEMBERS BUT BY
WITNESSES FROM THE OFFICE OF ALIEN PROPERTY, WITHOUT REGARD TO PRECISE
SHADES OF MEANING IN THE CONTEXT OF THE TRADING WITH THE ENEMY ACT. 

BY SEC. 39 CONGRESS WAS MANIFESTING ITS "FIRM RESOLVE NOT TO PERMIT
THE RECURRENCE OF EVENTS WHICH AFTER THE CLOSE OF WORLD WAR I LED TO
THE RETURN OF ENEMY PROPERTY TO THEIR FORMER OWNERS."  H.R. REP. NO.
976, 80TH CONG., 1ST SESS. 2.  THOSE EVENTS, AS WE HAVE SEEN,
CULMINATED IN THE SETTLEMENT OF WAR CLAIMS ACT OF 1928 PERMITTING
ENEMIES AS DEFINED IN SEC. 2 OF THE TRADING WITH THE ENEMY ACT TO
RECOVER 80% OF THEIR VESTED ASSETS.  THE MAJOR CONTROVERSY ON SEC. 39
WAS WHETHER THIS REVERSAL OF POST-WORLD WAR I POLICY WAS JUSTIFIABLE AS
A MATTER OF INTERNATIONAL LAW OR APPROPRIATE AS A COURSE OF ACTION FOR
THE UNITED STATES.  OPPONENTS OF THE SECTION CONSIDERED THE "POLICY OF
NONRETURN" AS APPLIED TO ADMITTED ENEMIES ILLEGAL, OR AT LEAST UNJUST,
CONFISCATION OF PRIVATE PROPERTY.  TO THIS POINT - AND NOT TO THE ISSUE
BEFORE THE COURT IN THIS CASE - WERE DIRECTED THE REFERENCES IN THE
REPORTS, H.R. REP. NO. 976, 80TH CONG., 1ST SESS. 2, AND DEBATE, 94
CONG. REC. 550-551, ON WHICH THE GOVERNMENT RELIES. 

ON THE OTHER HAND, BOTH SENATE AND HOUSE COMMITTEES HAD BEFORE THEM
TESTIMONY CALLING ATTENTION TO THE VERY PROBLEM NOW IN ISSUE.  HEARINGS
BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, SUPRA,
AT 265; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY, SUPRA, AT 197, 254.  AND ONE WITNESS PRESENTED A DRAFT
SUBSTITUTE FOR THE SECTION, COMPLEX TO BE SURE, WHICH WOULD EXPRESSLY
HAVE SAVED CASES LIKE GUESSEFELDT'S FROM THE OPERATION OF THE BILL. 
ID., AT 233-236.  THIS SUGGESTION WAS NOT ACTED UPON BY THE COMMITTEE. 
YET TAKEN AS A WHOLE, THE TESTIMONY ON THIS ISSUE WAS MEAGRE AND
UNIMPRESSIVE.  IT WAS LARGELY IN WRITTEN FORM, AND THEREFORE LESS
LIKELY TO HAVE BEEN SEEN BY OR TO HAVE HAD IMPACT ON THE COMMITTEE
MEMBERS OR TO REFLECT THEIR VIEWS.  THESE CONSIDERATIONS, TAKEN
TOGETHER WITH THE PERIPHERAL CHARACTER OF THE PROBLEM FROM THE
COMMITTEES' POINT OF VIEW, THE CONSISTENT FAILURE TO APPRECIATE THE
TECHNICAL SIGNIFICANCE OF THE TERM "ENEMY NATIONAL" IN THE FRAMEWORK OF
THE ACT, AND THE FACT THAT THE MATTERS RAISED BY THIS TESTIMONY WERE
NOT TOUCHED UPON IN FLOOR DEBATE - ALL GO FAR TO OVERCOME ANY
PRESUMPTION THAT THE CLAIMANT'S SITUATION WAS CONSIDERED BY CONGRESS
AND REJECTED. 

MOREOVER, A DECISION FOR THE GOVERNMENT WOULD REQUIRE US TO DECIDE
DEBATABLE CONSTITUTIONAL QUESTIONS.  IN SUITS BY UNITED STATES
CITIZENS, SEC. 9(A) HAS BEEN CONSTRUED, OVER THE GOVERNMENT'S
OBJECTION, TO REQUIRE REPAYMENT OF JUST COMPENSATION WHEN THE CUSTODIAN
HAS LIQUIDATED THE VESTED ASSETS.  BECKER STEEL CO. V. CUMMINGS, SUPRA;
HENKELS V. SUTHERLAND, 271 U.S. 298; SEE CENTRAL UNION TRUST CO. V.
GARVAN, 254 U.S. AT 566; STOEHR V. WALLACE, 255 U.S. 239, 245.  SUCH A
CONSTRUCTION, IT IS SAID, IS NECESSARY TO PRESERVE THE ACT FROM
CONSTITUTIONAL DOUBT.  IT IS CLEAR TOO THAT FRIENDLY ALIENS ARE
PROTECTED BY THE FIFTH AMENDMENT REQUIREMENT OF JUST COMPENSATION. 
RUSSIAN VOLUNTEER FLEET V. UNITED STATES, 282 U.S. 481.  THE QUESTION
WHICH REMAINS IS WHETHER A CITIZEN IN GUESSEFELDT'S POSITION OF A
NATION WITH WHICH THIS COUNTRY IS AT WAR IS DEEMED A FRIENDLY ALIEN. 
MORE BROADLY, IS ANY NATIONAL OF AN ENEMY COUNTRY WITHIN THE REACH OF
CONSTITUTIONAL PROTECTION?  THE THRUST OF THE GOVERNMENT'S ARGUMENT IS
THAT SEC. 39 BARS ANY SUCH CLAIMANT ON THE MERE SHOWING OF HIS
CITIZENSHIP.  EX PARTE KAWATO, 317 U.S. 69, HOLDS THAT AS A MATTER OF
COMMON LAW AS WELL AS INTERPRETATION OF THE TRADING WITH THE ENEMY ACT,
A RESIDENT ENEMY NATIONAL, EVEN THOUGH INTERNED, MUST BE PERMITTED
ACCESS TO AMERICAN COURTS.  AND THE VENUS, 8 CRANCH 253, SEEMS TO SAY
THAT AT COMMON AND INTERNATIONAL LAW, IN THE ABSENCE OF HOSTILE ACTS,
ENEMY STATUS, AT LEAST FOR THE PURPOSE OF TRADE, FOLLOWS LOCATION AND
NOT NATIONALITY.  CF. MILLER V. UNITED STATES, 11 WALL.  268, 310-311. 
ON THE OTHER SIDE IS MR. JUSTICE (THEN JUDGE) CARDOZO'S CAREFUL
OPINION IN TECHT V. HUGHES, 229 N.Y. 222, 128 N.E. 185, HOLDING THAT A
NATIONAL OF AN ENEMY COUNTRY, WHEREVER RESIDENT, IS AN ENEMY ALIEN AND
THAT ANY MITIGATION OF THE RIGORS OF THAT STATUS, AS IN THE RIGHT TO
SUE, IS A MATTER OF GRACE.  HE SUGGESTS, HOWEVER, THAT "ENEMY ALIEN"
FOR THE PURPOSE OF TRADE WITH THE ENEMY MAY BE SOMETHING DIFFERENT THAN
FOR OTHER PURPOSES, BUT HE HAD, OF COURSE, NO OCCASION TO CONSIDER
WHETHER THIS DIFFERENCE ATTAINED CONSTITUTIONAL DIMENSIONS.  IN KLEIN
V. PALMER, SUPRA, A SUIT BY TWO RESIDENT GERMAN CITIZENS, ONE
PROCLAIMED A DANGEROUS ENEMY ALIEN DURING WORLD WAR I, AGAINST THE
ALIEN PROPERTY CUSTODIAN FOR DAMAGES AND EQUITABLE RELIEF, JUDGES
HOUGH, L. HAND AND MACK HELD THAT "THE GOVERNMENT WAS UNDER NO
CONSTITUTIONAL PROHIBITION FROM CONFISCATING THE PROPERTY OF THE
ENEMY'S NATIONALS, WHETHER RESIDENT OR NONRESIDENT."  ID., AT 934.  IT
WAS THE COURT'S VIEW THAT THE CLASS OF NONENEMIES FOR THE PURPOSE OF
SEC. 2 OF THE TRADING WITH THE ENEMY ACT WAS BROADER THAN THE CLASS
ENTITLED TO JUST COMPENSATION UNDER THE FIFTH AMENDMENT. 

CERTAINLY, THE CONSTITUTIONAL PROBLEM IS NOT IMAGINARY, AND THE CLAIM
NOT FRIVOLOUS WHICH WOULD HAVE TO BE REJECTED TO DECIDE IN THE
GOVERNMENT'S FAVOR.  CONSIDERING THAT CONFISCATION IS NOT EASILY TO BE
ASSUMED, A CONSTRUCTION THAT AVOIDS IT AND IS NOT BARRED BY A FAIR
READING OF THE LEGISLATION IS INVITED. 

THE CONCERN OF THE TRADING WITH THE ENEMY ACT IS WITH PROBLEMS AT
ONCE COMPLICATED AND FAR-REACHING IN THEIR REPERCUSSIONS.  INSTEAD OF A
CAREFULLY MATURED ENACTMENT, THE LEGISLATION WAS A MAKESHIFT
PATCHWORK.  SUCH LEGISLATION STRONGLY COUNSELS AGAINST LITERALNESS OF
APPLICATION.  IT FAVORS A WISE LATITUDE OF CONSTRUCTION IN ENFORCING
ITS PURPOSES.  CF. CLARK V. UEBERSEE FINANZ-KORP., 332 U.S. 480;
MARKHAM V. CABELL, 326 U.S. 404; SILESIAN-AMERICAN CORP. V. CLARK, 332
U.S. 469.  (FN8) 

NONE OF THE CONSIDERATIONS WE HAVE CANVASSED STANDING ALONE IS
CONCLUSIVE IN FAVOR OF THE CLAIMANT.  PERHAPS NONE, BY ITSELF, WOULD
JUSTIFY A DECISION IN HIS FAVOR.  THE CUMULATIVE EFFECT, HOWEVER,
PLACES SUCH A DECISION WELL WITHIN THE BOUNDS OF REASONABLE
CONSTRUCTION.  WE HAVE SAID ENOUGH TO SHOW THAT THE QUESTION IS NOT
FREE FROM DOUBT.  ON THE BALANCE, HOWEVER, WE THINK SEC. 39 IS PROPERLY
CONSTRUED AS APPLYING ONLY TO THOSE GERMAN AND JAPANESE NATIONALS
OTHERWISE INELIGIBLE TO BRING SUIT UNDER SEC. 9(A). 

THE JUDGMENT BELOW IS REVERSED. 

FN1  SEC. 2.  "THE WORD 'ENEMY,' AS USED HEREIN, SHALL BE DEEMED TO
MEAN, FOR THE PURPOSES OF SUCH TRADING AND OF THIS ACT: 

"(A) ANY INDIVIDUAL, PARTNERSHIP, OR OTHER BODY OF INDIVIDUALS, OF
ANY NATIONALITY, RESIDENT WITHIN THE TERRITORY (INCLUDING THAT OCCUPIED
BY THE MILITARY AND NAVAL FORCES) OF ANY NATION WITH WHICH THE UNITED
STATES IS AT WAR, OR RESIDENT OUTSIDE THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY, AND ANY CORPORATION INCORPORATED WITHIN
SUCH TERRITORY OF ANY NATION WITH WHICH THE UNITED STATES IS AT WAR OR
INCORPORATED WITHIN ANY COUNTRY OTHER THAN THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY." 

SEC. 9.  "(A)  ANY PERSON NOT AN 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; ...  SAID CLAIMANT MAY
INSTITUTE A SUIT IN EQUITY IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF COLUMBIA OR IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT IN WHICH SUCH CLAIMANT RESIDES, OR, IF A
CORPORATION, WHERE IT HAS ITS PRINCIPAL PLACE OF BUSINESS (TO WHICH
SUIT THE ALIEN PROPERTY CUSTODIAN OR THE TREASURER OF THE UNITED
STATES, AS THE CASE MAY BE, SHALL BE MADE A PARTY DEFENDANT), TO
ESTABLISH THE INTEREST, RIGHT, TITLE, OR DEBT SO CLAIMED, AND IF SO
ESTABLISHED THE COURT SHALL ORDER THE PAYMENT, CONVEYANCE, TRANSFER,
ASSIGNMENT, OR DELIVERY TO SAID CLAIMANT OF THE MONEY OR OTHER PROPERTY
SO HELD  ...  OR THE INTEREST THEREIN TO WHICH THE COURT SHALL
DETERMINE SAID CLAIMANT IS ENTITLED."  50 U.S.C. APP. SECS. 2, 2(A),
9(A). 

FN2  "SEC.  39.  NO PROPERTY OR INTEREST THEREIN OF GERMANY, JAPAN,
OR ANY NATIONAL OF EITHER SUCH COUNTRY VESTED IN OR TRANSFERRED TO ANY
OFFICER OR AGENCY OF THE GOVERNMENT AT ANY TIME AFTER DECEMBER 17,
1941, PURSUANT TO THE PROVISIONS OF THIS ACT, SHALL BE RETURNED TO
FORMER OWNERS THEREOF OR THEIR SUCCESSORS IN INTEREST, AND THE UNITED
STATES SHALL NOT PAY COMPENSATION FOR ANY SUCH PROPERTY OR INTEREST
THEREIN.  THE NET PROCEEDS REMAINING UPON THE COMPLETION OF
ADMINISTRATION, LIQUIDATION, AND DISPOSITION PURSUANT TO THE PROVISIONS
OF THIS ACT OF ANY SUCH PROPERTY OR INTEREST THEREIN SHALL BE COVERED
INTO THE TREASURY AT THE EARLIEST PRACTICABLE DATE.  NOTHING IN THIS
OF THE PROVISIONS OF SECTION 32 OF THIS ACT OR OF THE PHILIPPINE
PROPERTY ACT OF 1946." 

FN3  SEE STATEMENT OF HON. ROBERT LANSING, SECRETARY OF STATE,
HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
ON H.R. 4704, 65TH CONG., 1ST SESS. 3, 4.  BUT SEE ID., AT 9. 
ASSISTANT ATTORNEY GENERAL CHARLES WARREN, PRINCIPAL DRAFTSMAN OF THE
BILL, TESTIFIED THAT IT HAD NO APPLICATION TO GERMANS "DOMICILED" IN
THIS COUNTRY.  ID., AT 34.  AND THE HOUSE REPORT SPEAKS OF ENEMY STATUS
AS BEING DETERMINED "NOT SO MUCH  ...  BY THE NATIONALITY OR ALLEGIANCE
OF THE INDIVIDUAL,  ...  AS BY HIS  ...  COMMERCIAL DOMICILE OR
RESIDENCE IN ENEMY TERRITORY.  THE ENEMY DOMICILED OR RESIDING IN THE
UNITED STATES IS NOT INCLUDED  ...  ."  H.R. REP. NO. 85, 65TH CONG.,
1ST SESS. 2. 

FN4  THE VALIDITY OF THIS CONSTRUCTION IS ADDITIONALLY SUGGESTED BY
THE EXPLANATION IN THE SENATE REPORT OF THE PARALLEL TERM OF SEC. 2,
"DOING BUSINESS WITHIN SUCH TERRITORY."  ACCORDING TO THE REPORT THAT
MEANT "HAVING A BRANCH OR AGENCY ACTIVELY CONDUCTING BUSINESS WITHIN
THAT COUNTRY."  S. REP. NO. 111, 65TH CONG., 1ST SESS. 4.  THAT IS TO
SAY, NOT "DOMICILED" IN ENEMY TERRITORY BY AMERICAN CORPORATION LAW
STANDARDS, BUT HAVING A SUBSTANTIAL, NOT CASUAL OR TRANSITORY
CONNECTION WITH IT.  SEE ALSO HEARINGS BEFORE A SUBCOMMITTEE OF THE
SENATE COMMITTEE ON COMMERCE ON H.R. 4960, 65TH CONG., 1ST SESS. 136
137. 

FN5  H.R. REP. NO. 976, 80TH CONG., 1ST SESS. 2. 

FN6  THE RESOLUTION OF JULY 2, 1921, TERMINATING THE STATE OF WAR
WITH GERMANY, PROVIDED THAT "ALL PROPERTY OF THE IMPERIAL GERMAN
GOVERNMENT  ...  AND OF ALL GERMAN NATIONALS WHICH  ...  HAS  ... COME
INTO THE POSSESSION OR UNDER CONTROL OF  ...  THE UNITED STATES  ...
SHALL BE RETAINED  ... AND NO DISPOSITION THEREOF MADE, EXCEPT AS SHALL
HAVE BEEN HERETOFORE OR SPECIFICALLY HEREAFTER SHALL BE PROVIDED BY
LAW."  42 STAT. 105, 106.  BY THE TREATY OF VERSAILLES, ART. 297(D),
"ALL THE EXCEPTIONAL WAR MEASURES, OR MEASURES OF TRANSFER  ...  SHALL
BE CONSIDERED AS FINAL AND BINDING UPON ALL PERSONS."  IN ART. 297(I),
GERMANY UNDERTOOK "TO COMPENSATE HER NATIONALS IN RESPECT OF THE SALE
OR RETENTION OF THEIR PROPERTY, RIGHTS OR INTERESTS IN ALLIED OR
ASSOCIATED STATES."  THE TREATY OF BERLIN, 42 STAT. 1939, 1940,
INCORPORATED THESE PROVISIONS OF THE VERSAILLES TREATY, TOGETHER WITH
APPENDICES DEFINING "EXCEPTIONAL WAR MEASURES" AND CUTTING OFF THE
RIGHT OF SUIT BY GERMAN NATIONALS AGAINST AMERICAN OFFICIALS ON ACCOUNT
OF WARTIME ACTION.  AN AGREEMENT OF AUGUST 10, 1922, 42 STAT. 2200,
ESTABLISHED A MIXED CLAIMS COMMISSION TO ADJUDICATE CLAIMS OF AMERICAN
NATIONALS AGAINST GERMANY.  PROVISIONS FOR THE RETURN OF VESTED
PROPERTY WERE MADE BY SUCCESSIVE AMENDMENTS TO SEC. 9.  FINALLY, IN THE
SETTLEMENT OF WAR CLAIMS ACT, 45 STAT. 254, 270, CONGRESS PROVIDED FOR
THE RETURN OF 80% OF THEIR VESTED PROPERTY TO GERMAN ENEMIES WHO WOULD
WAIVE THEIR CLAIMS TO THE REMAINING 20%.  GERMANY IN A DEBT FUNDING
AGREEMENT OF JUNE 23, 1930, DEPOSITED BONDS WITH THE UNITED STATES,
PAYMENTS ON WHICH WERE TO BE APPLIED TO THE SETTLEMENT OF AWARDS OF THE
MIXED CLAIMS COMMISSION.  WHEN GERMANY DEFAULTED ON THESE PAYMENTS,
CONGRESS, BY PUBLIC RESOLUTION NO. 53 OF JUNE 27, 1934, 48 STAT. 1267,
SUSPENDED ALL DELIVERIES OF PROPERTY UNDER THE SETTLEMENT OF WAR CLAIMS
ACT TO GERMAN NATIONALS UNTIL GERMANY SHOULD CLEAR UP THE ARREARS. 

FN7 AS IT PASSED THE HOUSE, THE BILL CONTAINED A PROVISION SUSPENDING
THE PAYMENT OUT OF VESTED ASSETS OF DEBTS OWED BY ENEMIES TO CITIZENS. 
IN THE SENATE HEARINGS, REPRESENTATIVE BECKWORTH, WHO HAD SPONSORED
THAT PROVISION, URGED THE SENATE TO GO FURTHER AND SUSPEND THE PAYMENT
OF SO-CALLED "TITLE CLAIMS" AS WELL.  HE PRESENTED A DRAFT AMENDMENT
FOR THE SENATE COMMITTEE'S CONSIDERATION WHICH PROVIDED THAT "NO
PROPERTY  ...  SHALL BE RETURNED TO FORMER OWNERS  ...  EXCEPT AS
DIRECTED BY A COURT UNDER SEC. 9(A) OF THE ACT."  THIS WAS TO BE AN
ADDITION TO THE PROVISION WHICH BECAME SEC. 39.  HEARINGS BEFORE A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE JUDICIARY ON H.R. 4044,
80TH CONG., 2D SESS. 124.  BOTH OF THESE PROVISIONS WERE OMITTED FROM
THE BILL REPORTED BY THE SENATE.  ALTHOUGH THIS BIT OF LEGISLATIVE
HISTORY REVEALS A CERTAIN AMOUNT OF CONFUSION ABOUT THE OPERATION OF
THE ACT, IT IS TOLERABLY CLEAR FROM IT THAT THE OPERATION OF SEC. 9(A)
WAS NOT INTENDED TO BE AFFECTED BY THE LEGISLATION. 

FN8  OTHER THAN THOSE HERE FOR REVIEW, SIX DISTRICT COURT CASES HAVE
INVOLVED CONSTRUCTION OF SEC. 39.  THE GOVERNMENT CONTENDS THAT FIVE OF
THESE HAVE ACCEPTED THE POSITION IT URGES IN THIS CASE.  SCHILL V.
MCGRATH, 89 F. SUPP. 339; LIPPMANN V. MCGRATH, 94 F. SUPP. 1016;
BELLMAN V. CLARK, CIV. NO. 47-229 (S.D.N.Y. NOV. 8, 1948); MITTLER V.
MCGRATH, CIV. NO. 3276-48 (D.D.C. MAR. 31, 1950); JANNER V. MCGRATH,
CIV. NO. 3685-49 (D.D.C. MAR. 31, 1950).  EVEN IF THIS WERE TRUE, IT
WOULD PRESENT NO SUCH SETTLED LINE OF ADJUDICATION AS TO GIVE PAUSE TO
THIS COURT IN UPSETTING IT.  BUT AT LEAST THREE OF THESE CASES PRESENT
NO CONFLICT WITH A DECISION IN FAVOR OF THE CLAIMANT HERE.  IN MITTLER,
JANNER AND LIPPMAN, PLAINTIFFS ARE ENEMIES WITHIN SEC. 2, THUS
INELIGIBLE UNDER SEC. 9(A), AND BECAUSE THEY ARE ALSO CITIZENS OF
GERMANY MUST BE BARRED BY SEC. 39 WHATEVER THE MEANING ASCRIBED TO THE
TERM "NATIONAL" IN THAT SECTION.  THE SAME IS POSSIBLY TRUE OF SCHILL,
SINCE THE PLAINTIFF THERE WAS INTERNED AS A DANGEROUS ENEMY ALIEN
DURING THE WAR.  IT MIGHT ALSO BE ADDED THAT IN MCGRATH V. ZANDER,
SUPRA, DECIDED AFTER THE ENACTMENT OF SEC. 39, THE GOVERNMENT
APPARENTLY MADE NO CONTENTION THAT THE SECTION WOULD BAR THE SUIT,
ALTHOUGH ON THE GOVERNMENT'S THEORY THAT RESULT WOULD CLEARLY FOLLOW. 
THUS, ANALYSIS OF THE CASES SHOWS NO SUCH NEAR UNANIMITY IN ITS FAVOR
AS THE GOVERNMENT CONTENDS. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE VINSON, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE
MINTON JOIN, DISSENTING. 

I DISSENT BECAUSE I WOULD READ SECTION 39 AS IT IS WRITTEN.  THAT
GERMANY OR JAPAN.  (FN1)  PETITIONER IS A GERMAN CITIZEN AND THE COURT
ITSELF CONCEDES THAT A GERMAN CITIZEN IS A GERMAN NATIONAL.  (OP. P.
320.)  YET THE COURT PERMITS RETURN OF PROPERTY TO PETITIONER, LIMITING
THE APPLICATION OF SECTION 39 TO SOME NATIONALS, NAMELY THOSE NATIONALS
WHO ARE ALSO "ENEMIES" AS THE TERM IS DEFINED IN SECTION 2(A) OF THE
TRADING WITH THE ENEMY ACT. 

THE TERM "NATIONAL" HAS ALSO BEEN GIVEN LEGISLATIVE DEFINITION. 
"NATIONAL" IS DEFINED AS INCLUDING "A SUBJECT, CITIZEN OR RESIDENT OF A
FOREIGN COUNTRY" IN EXECUTIVE ORDER NO. 8389, (FN2) A REGULATION
"APPROVED, RATIFIED, AND CONFIRMED" BY CONGRESS IN 1941.  (FN3)  THE
COURT APPLIES SECTION 39 BY READING OUT THE TERM "NATIONAL" AND
INSERTING THE TERM "ENEMY" AS DEFINED IN SECTION 2(A).  SINCE IT IS
APPARENT ON THE FACE OF THE STATUTE THAT CONGRESS IN NO WISE CHOSE TO
ASSIMILATE THESE TWO CLEARLY DEFINED TERMS, THE COURT SHOULD NOT. 

JUST THE OTHER DAY, WE HELD THAT "WE ARE NOT FREE, UNDER THE GUISE OF
CONSTRUCTION, TO AMEND A STATUTE" BY READING "CAREFULLY DISTINGUISHED
AND SEPARATELY DEFINED TERMS TO MEAN THE SAME THING."  PILLSBURY V.
UNITED ENGINEERING CO., 342 U.S. 197, 199-200 (1952).  IN DEPARTING
FROM THAT STANDARD IN THIS CASE, THE COURT REWRITES SECTION 39 SO THAT
THE TRADING WITH THE ENEMY ACT OF 1917, AS AMENDED, WILL CONFORM MORE
CLOSELY TO ITS OWN NOTIONS OF STATUTORY SYMMETRY.  CONDEMNING THAT ACT
AS "MAKESHIFT PATCHWORK" DOES NOT JUSTIFY A FAILURE TO READ THE 1948
ADDITION OF SECTION 39 AS IT WAS WRITTEN BY CONGRESS.  STATUTORY
REVISION BY THIS COURT IS NOT CONSISTENT WITH OUR JUDICIAL FUNCTION OF
ENFORCING STATUTORY LAW AS WRITTEN BY THE LEGISLATURE. 

IN MY VIEW, THIS CASE SHOULD BE DECIDED ON THE BASIS OF THE
LEGISLATIVELY DEFINED LANGUAGE OF SECTION 39.  BUT THE COURT HAS
BROADENED THE INQUIRY.  EVEN ON THE COURT'S OWN BASIS, THE RESULT IN
THIS CASE CANNOT BE SQUARED WITH THE HISTORY OF THE TRADING WITH THE
ENEMY ACT, THE LEGISLATIVE BACKGROUND OF SECTION 39 OR THE SCOPE OF
CONGRESS' WAR POWER OVER ENEMY PROPERTY. 

AT THE OUTSET, IT SHOULD BE CLEARLY UNDERSTOOD THAT WHEN PETITIONER'S
PROPERTY WAS VESTED, HE WAS AN ALIEN ENEMY IN EVERY ORDINARY SENSE OF
THAT TERM.  SO LONG AS HIS CITIZENSHIP WAS GERMAN, HE BECAME AN ENEMY
UPON THE DECLARATION OF WAR WITH GERMANY, WHEREVER HIS RESIDENCE AND
WHATEVER HIS PERSONAL SENTIMENTS.  THIS COURT HAS SO HELD THROUGHOUT
ITS HISTORY.  (FN4)  THE COURT TODAY ACKNOWLEDGES THAT TECHT V. HUGHES,
229 N.Y. 222, 128 N.E. 185 (1920), SO HELD AFTER AN EXHAUSTIVE REVIEW
OF THE AUTHORITIES.  IT SHOULD BE ADDED THAT THIS COURT RECENTLY
ADOPTED THE RATIONALE OF TECHT V. HUGHES, SUPRA, IN JOHNSON V.
EISENTRAGER, 339 U.S. 763, 771-773 (1950).  NOR NEED WE LOOK ONLY TO
JUDICIAL DEFINITION OF PETITIONER'S STATUS.  CONGRESS HAD DEFINED
"ALIEN ENEMIES" AS INCLUDING "ALL NATIVES, CITIZENS, DENIZENS, OR
SUBJECTS OF THE HOSTILE NATION OR GOVERNMENT."  (FN5)  AS WE SO
RECENTLY SAID, THE CLASSIFICATION BETWEEN FRIEND AND ENEMY BASED UPON
CITIZENSHIP, IF EVER "DOCTRINAIRE," HAS NOW BEEN "VALIDATED BY THE
ACTUALITIES OF MODERN TOTAL WARFARE."  JOHNSON V. EISENTRAGER, SUPRA,
AT 772. 

WHEN, IN 1917, CONGRESS DEFINED THE TERM "ENEMY" SOLELY "FOR THE
PURPOSES OF" THE TRADING WITH THE ENEMY ACT, IT WAS AWARE THAT SUCH
STATUS WAS ORDINARILY DETERMINED BY "NATIONALITY OR ALLEGIANCE OF THE
INDIVIDUAL" RATHER THAN BY "DOMICILE OR RESIDENCE."  (FN6)  HOWEVER, AT
THAT TIME, CONGRESS CHOSE TO LIMIT THE DEFINITION OF "ENEMY" TO INCLUDE
ONLY THOSE PERSONS "RESIDENT WITHIN" ENEMY TERRITORY - A DEFINITION
WHICH DOES NOT INCLUDE PETITIONER ON THE PLEADINGS IN THIS CASE. 
DELIBERATE "RELAXATION" AND "MODIFICATION" OF CONGRESS' POWER OVER
ENEMY PROPERTY.  (FN7)  THIS POLICY OF MODIFICATION WAS FOLLOWED
THROUGHOUT THE WORLD WAR I ALIEN PROPERTY PROGRAM, CULMINATING IN THE
SETTLEMENT OF WAR CLAIMS ACT OF 1928 WHICH AUTHORIZED RETURN OF 80% OF
SEIZED PROPERTY TO ITS FORMER OWNERS.  (FN8) 

WORLD WAR II LEGISLATION OVER ALIEN PROPERTY REPRESENTED A COMPLETE
REVERSAL OF THE SOFT POLICY OF WORLD WAR I. IN 1941, CONGRESS EXTENDED
THE POWER OF SEIZURE AND VESTING TO ALL PROPERTY OF "ANY FOREIGN
COUNTRY OR NATIONAL THEREOF" IN EXERCISING ITS WAR POWER "TO
AFFIRMATIVELY COMPEL THE USE AND APPLICATION OF FOREIGN PROPERTY IN A
MANNER CONSISTENT WITH THE INTERESTS OF THE UNITED STATES."   (FN9)  IN
1946, CONGRESS ADDED SECTION 32 TO THE TRADING WITH THE ENEMY ACT,
AUTHORIZING ADMINISTRATIVE RETURN OF VESTED PROPERTY SUBJECT TO CERTAIN
CONDITIONS, ONE OF WHICH PREVENTED ADMINISTRATIVE RETURN TO A "CITIZEN
OR SUBJECT OF AN ENEMY NATION" WHO WAS "PRESENT  ...  IN THE TERRITORY
OF SUCH NATION."  (FN10)  FINALLY, IN THE WAR CLAIMS ACT OF 1948,
CONGRESS ADDED SECTION 39 TO THE TRADING WITH THE ENEMY ACT, THEREBY
EXPRESSING ITS "FIRM RESOLVE NOT TO PERMIT THE RECURRENCE" OF THE WORLD
WAR I POLICY OF RETURNING ENEMY PROPERTY.  (FN11)  THE HOUSE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE, IN REPORTING FAVORABLY UPON THE
BILL, STATED: 

"THE POLICY OF NONRETURN AND NONCOMPENSATION IS A SOUND PUBLIC POLICY
WHICH SHOULD BE ENACTED INTO LAW.  IT DOES NOT VIOLATE ANY CONCEPTS OF
INTERNATIONAL LAW OR INTERNATIONAL MORALITY.  NO ESSENTIAL DIFFERENCE
EXISTS BETWEEN PRIVATE PROPERTY AND PUBLIC PROPERTY IN THE CASE OF
GERMANY AND JAPAN.  FOR SEVERAL YEARS BEFORE WORLD WAR II WHILE GERMANY
AND JAPAN WERE PREPARING TO MAKE WAR UPON THE UNITED STATES, PROPERTY
OWNED IN THE UNITED STATES BY THE CITIZENS OF BOTH OF THESE COUNTRIES
WAS SUBJECT TO RIGID CONTROL OF THEIR RESPECTIVE GOVERNMENTS.  WHILE
THE FICTION OF PRIVATE OWNERSHIP WAS RETAINED, ACTUALLY PROPERTY OF
GERMAN AND JAPANESE NATIONALS IN THE UNITED STATES WAS WIDELY USED TO
ACCOMPLISH THE NATIONAL OBJECTIVES OF THOSE COUNTRIES. 

"THE POSITION OF GERMANY AND JAPAN (WITH RESPECT TO WAR CLAIMS
AGAINST THESE COUNTRIES) IS SOMEWHAT ANALOGOUS TO THAT OF A BANKRUPT
AGAINST WHOM CLAIMS ARE APT TO BE FILED IN AN AMOUNT GREATLY IN EXCESS
OF THE BANKRUPT'S ASSETS.  THE LEGITIMATE CLAIMS OF THE UNITED STATES
ALONE, ON ACCOUNT OF THE EXPENSE INCURRED IN FIGHTING WORLD WAR II,
WILL MOST LIKELY EXCEED MANY TIMES THE ASSETS AVAILABLE FOR PAYMENT
EVEN OVER A CONSIDERABLE PERIOD OF YEARS.  UNDER THESE CIRCUMSTANCES IT
IS THEREFORE NOT ONLY EXPEDIENT BUT JUST AND FAIR FOR THE UNITED STATES
TO MARSHAL ALL JAPANESE AND GERMAN ASSETS WHICH ARE AVAILABLE IN THIS
COUNTRY."  (FN12) 

UNDER THIS REVERSAL OF WORLD WAR I POLICY, THE PROPERTY OF GERMAN
NATIONALS, INCLUDING PETITIONER'S, WAS TO BE RETAINED TO SATISFY WAR
CLAIMS ARISING OUT OF GERMAN AGGRESSION.  THE POLICY OF NON-RETURN OF
VESTED PROPERTY TO GERMAN NATIONALS RESTRICTS THE SCOPE OF SECTION 9(A)
AS TO RETURNS TO GERMAN NATIONALS SUCH AS PETITIONER WHO ARE NOT
"ENEMIES" AS DEFINED IN SECTION 2(A).  THE PRIMARY PURPOSE OF SECTION
9(A) - TO PROVIDE FOR JUDICIAL RETURN OF PROPERTY MISTAKENLY SEIZED
FROM AMERICAN CITIZENS OR NATIONALS OF FRIENDLY COUNTRIES - IS
PRESERVED.  (FN13)  SUCH AN INTERPRETATION OF SECTION 39, READING THE
WORD "NATIONAL" AS MEANING "NATIONAL" AND NOT "ENEMY," IS FAR MORE
HARMONIOUS WITH THE ENTIRE ACT AND PARTICULARLY THE WORLD WAR II
LEGISLATION ON ALIEN PROPERTY (FN14) THAN THE COURT'S READING OF THE
STATUTE. 

LOOKING TO THE LEGISLATIVE HISTORY OF SECTION 39 ITSELF, THE COURT
NOTES THAT CONGRESSIONAL ATTENTION WAS FOCUSED ON THE PROBLEM OF
COMPENSATING PRISONERS OF WAR, INTERNEES AND OTHERS INJURED BY OUR
WORLD WAR II ENEMIES.  WITH THE CLAIMS OF THE VICTIMS OF AGGRESSION
PRESSED UPON IT, IT IS NOT SURPRISING THAT, WHEN CONGRESS BALANCED
THOSE CLAIMS AGAINST THE RIGHTS OF ENEMY NATIONALS TO PROPERTY LAWFULLY
VESTED BY THE ALIEN PROPERTY CUSTODIAN, IT PROHIBITED RETURN OF
PROPERTY TO ENEMY "NATIONALS" AND NOT MERELY TO "ENEMIES" AS
RESTRICTIVELY DEFINED IN SECTION 2(A) OF THE TRADING WITH THE ENEMY ACT
OF 1917.  IT CANNOT BE FAIRLY SUGGESTED THAT CONGRESSIONAL USE OF THE
TERM "NATIONAL" WAS INADVERTENT.  OBJECTIONS TO THE RESTRICTION ON
RECOVERY OF PROPERTY UNDER SECTION 9(A) RESULTING FROM THE USE OF THE
TERM "NATIONAL" INSTEAD OF "ENEMY" IN SECTION 39 WERE PRESSED UPON
CONGRESS IN A WRITTEN STATEMENT AND IN ORAL TESTIMONY BEFORE A
CONGRESSIONAL COMMITTEE.  (FN15)  A WITNESS OFFERED A PROPOSED
AMENDMENT TO SECTION 39 THAT WOULD HAVE LIMITED ITS APPLICATION TO
CERTAIN DESCRIBED ENEMY NATIONALS.  (FN16)  EVEN THIS AMENDMENT WOULD
NOT HAVE SAVED PETITIONER'S CLAIM.  IT WOULD NOT HAVE SUBSTITUTED THE
TERM "ENEMY" AS NARROWLY DEFINED IN SECTION 2(A) OF THE ACT AND HENCE
WOULD NOT HAVE LIMITED THE OPERATION OF SECTION 39 AS DRASTICALLY AS
THE COURT DOES TODAY. 

THE COURT CLOSES WITH THE STATEMENT THAT ITS CONSTRUCTION OF SECTION
39 AVOIDS A CONSTITUTIONAL PROBLEM WHICH, IT SAYS, "IS NOT IMAGINARY." 
AS DISCUSSED ABOVE, IT IS SETTLED THAT PETITIONER IS AN ALIEN ENEMY IN
EVERY SENSE OF THE WORD BUT THE PURPOSELY RESTRICTIVE DEFINITION OF
CONSTITUTIONAL PROHIBITION AGAINST CONFISCATION OF ENEMY PROPERTIES." 
UNITED STATES V. CHEMICAL FOUNDATION, INC., 272 U.S. 1, 11 (1926), AND
CASES CITED THEREIN.  THE SUGGESTION THAT THE RELAXED LEGISLATIVE
DEFINITION OF "ENEMY" IN 1917 COULD LIMIT THE CONSTITUTIONAL WAR POWER
OF CONGRESS OVER ENEMY PROPERTY FINDS NO SUPPORT IN DECISIONS OF THIS
COURT.  (FN17) 

PETITIONER, A GERMAN CITIZEN PRESENT IN GERMANY DURING THE WAR, IS
CERTAINLY AS MUCH AN ENEMY ALIEN AS WAS LUDECKE, A GERMAN CITIZEN
LAWFULLY RESIDENT IN THIS COUNTRY DURING THE WAR.  WE FOUND NO
CONSTITUTIONAL BARRIER TO LUDECKE'S SUMMARY REMOVAL WITHOUT JUDICIAL
SCRUTINY UNDER THE ALIEN ENEMY ACT OF 1798.  LUDECKE V. WATKINS, 335
U.S. 160 (1948).  THAT OPINION RELIED UPON AN EXCERPT FROM A PARAGRAPH
BY CHIEF JUSTICE MARSHALL IN BROWN V. UNITED STATES, 8 CRANCH 110, 126
(1814), A CASE DEALING WITH CONFISCATION OF PROPERTY.  335 U.S. AT
164.  THE FULL PARAGRAPH READS AS FOLLOWS: 

"WAR GIVES AN EQUAL RIGHT OVER PERSONS AND PROPERTY:  AND IF ITS
DECLARATION IS NOT CONSIDERED AS PRESCRIBING A LAW RESPECTING THE
PERSON OF AN ENEMY FOUND IN OUR COUNTRY, NEITHER DOES IT PRESCRIBE A
LAW FOR HIS PROPERTY.  THE ACT CONCERNING ALIEN ENEMIES, WHICH CONFERS
ON THE PRESIDENT VERY GREAT DISCRETIONARY POWERS RESPECTING THEIR
PERSONS, AFFORDS A STRONG IMPLICATION THAT HE DID NOT POSSESS THOSE
POWERS BY VIRTUE OF THE DECLARATION OF WAR." 

ANY DOUBTS AS TO CONGRESS'"EQUAL RIGHT OVER PERSONS AND PROPERTY" OF
ENEMY ALIENS SHOULD HAVE VANISHED WITH THE LUDECKE DECISION.  THE JUST
COMPENSATION CLAUSE, LIKE THE DUE PROCESS CLAUSE, IS FOUND IN THE BILL
OF RIGHTS.  AS WE SAID IN OUR LUDECKE DECISION, "IT WOULD SAVOR OF
DOCTRINAIRE AUDACITY NOW TO FIND THE STATUTE OFFENSIVE TO SOME
EMANATION OF THE BILL OF RIGHTS."  335 U.S. AT 171.  IN ADDITION TO
WHAT WAS SAID IN LUDECKE, THE ADMONITION OF CHIEF JUSTICE MARSHALL IN
BROWN V. UNITED STATES, SUPRA, IS APPROPRIATE IN THIS CASE: 

"RESPECTING THE POWER OF GOVERNMENT NO DOUBT IS ENTERTAINED.  THAT
WAR GIVES TO THE SOVEREIGN FULL RIGHT TO TAKE THE PERSONS AND
CONFISCATE THE PROPERTY OF THE ENEMY WHEREVER FOUND, IS CONCEDED.  THE
MITIGATIONS OF THIS RIGID RULE, WHICH THE HUMANE AND WISE POLICY OF
MODERN TIMES HAS INTRODUCED INTO PRACTICE, WILL MORE OR LESS AFFECT THE
EXERCISE OF THIS RIGHT, BUT CANNOT IMPAIR THE RIGHT ITSELF.  THAT
REMAINS UNDIMINISHED, AND WHEN THE SOVEREIGN AUTHORITY SHALL CHOOSE TO
BRING IT INTO OPERATION, THE JUDICIAL DEPARTMENT MUST GIVE EFFECT TO
ITS WILL.  BUT UNTIL THAT WILL SHALL BE EXPRESSED, NO POWER OF
CONDEMNATION CAN EXIST IN THE COURT."  8 CRANCH AT 122-123. 

THE WILL OF CONGRESS HAVING BEEN EXPRESSED IN UNMISTAKABLE TERMS IN

FN1  "NO PROPERTY OR INTEREST THEREIN OF GERMANY, JAPAN, OR ANY
NATIONAL OF EITHER SUCH COUNTRY VESTED IN OR TRANSFERRED TO ANY OFFICER
OR AGENCY OF THE GOVERNMENT AT ANY TIME AFTER DECEMBER 17, 1941,
PURSUANT TO THE PROVISIONS OF THIS ACT, SHALL BE RETURNED TO FORMER
OWNERS THEREOF OR THEIR SUCCESSORS IN INTEREST, AND THE UNITED STATES
SHALL NOT PAY COMPENSATION FOR ANY SUCH PROPERTY OR INTEREST THEREIN. 
THE NET PROCEEDS REMAINING UPON THE COMPLETION OF ADMINISTRATION,
LIQUIDATION, AND DISPOSITION PURSUANT TO THE PROVISIONS OF THIS ACT OF
ANY SUCH PROPERTY OR INTEREST THEREIN SHALL BE COVERED INTO THE
TREASURY AT THE EARLIEST PRACTICABLE DATE.  NOTHING IN THIS SECTION
SHALL BE CONSTRUED TO REPEAL OR OTHERWISE AFFECT THE OPERATION OF THE
PROVISIONS OF SECTION 32 OF THIS ACT OR OF THE PHILIPPINE PROPERTY ACT
OF 1946."  62 STAT. 1240, 1246 (1948), 50 U.S.C. APP. (SUPP. IV) SEC.
39. 

FN2  SEC. 5(E)(I), 6 FED. REG. 2897, 2898 (1941). 

FN3  55 STAT. 838, 840 (1941). 

FN4  THE RAPID, 8 CRANCH 155, 161 (1814); WHITE V. BURNLEY, 20 HOW. 
235, 249 (1858); THE VENICE, 2 WALL.  258, 274 (1865); THE BENITO
ESTENGER, 176 U.S. 568, 571 (1900); HERRERA V. UNITED STATES, 222 U.S.
558, 569 (1912). 

FN5  ALIEN ENEMY ACT OF 1798, 1 STAT. 577, NOW 50 U.S.C. SEC. 21.  A
SIMILAR DEFINITION OF "ALIEN ENEMIES" HAD ALSO BEEN USED IN THE
NATURALIZATION LAWS.  2 STAT. 153, 154 (1802); R.S. SEC. 2171.  IN
WORLD WAR I, CONGRESS SPECIFICALLY EXEMPTED "ALIEN ENEMIES" FROM THE
DRAFT, A CONTEXT IN WHICH THE TERM "ALIEN ENEMY" WOULD BE MEANINGLESS
IF IT DID NOT INCLUDE NATIONALS OF ENEMY NATIONS RESIDING IN THIS
COUNTRY.  40 STAT. 76-78, 885, 955 (1917-1918). 

FN6  H.R. REP. NO. 85, 65TH CONG., 1ST SESS. (1917). 

FN7  IBID.; S. REP. NO. 111, 65TH CONG., 1ST SESS. 2 (1917); 55 CONG.
REC. 4842 (1917).  SEE EX PARTE KAWATO, 317 U.S. 69, 76-77 (1942). 

FN8  45 STAT. 254, 270-274 (1928), 50 U.S.C. APP. SECS. 9(B)(12)-(14)
AND (16), 9(M).  RETURNS OF GERMAN PROPERTY WERE POSTPONED IN 1934 WHEN
IT APPEARED THAT GERMANY WAS IN DEFAULT IN THE PAYMENT OF WAR CLAIMS. 
48 STAT. 1267 (1934). 

FN9  55 STAT. 838, 839 (1941), 50 U.S.C. APP. SEC. 5(B); S. REP. NO.
911, 77TH CONG., 1ST SESS. 2 (1941).  SEE CLARK V. UEBERSEE FINANZ
KORP., 332 U.S. 480 (1947). 

FN10  60 STAT. 50 (1946), 50 U.S.C. APP. SEC. 32(A)(2)(D). 

FN11  H.R. REP. NO. 976, 80TH CONG., 1ST SESS. 2 (1947). 

FN12  ID., AT 2-3. 

FN13  SECTION 9(A) WAS ORIGINALLY DESIGNED TO PROTECT AMERICAN
CITIZENS, S. REP. NO. 111, 65TH CONG., 1ST SESS. 8 (1917), AND
APPARENTLY THE BULK OF THE CLAIMS FILED UNDER SEC. 9(A) ARE THOSE OF
AMERICAN CITIZENS.  HEARINGS BEFORE SENATE COMMITTEE ON THE JUDICIARY
ON H.R. 4044, 80TH CONG., 2D SESS. 44 (1948). 

FN14  1946 PATENT LEGISLATION LIKEWISE CONFORMS TO THIS PATTERN.  IN
1921, CONGRESS BARRED CLAIMS BASED UPON WORLD WAR I USE OF PATENT
RIGHTS OF AN "ALIEN ENEMY."  41 STAT. 1313, 1314, 35 U.S.C. SEC. 86. 
IN 1946, CONGRESS BARRED CLAIMS FOR PATENT INFRINGEMENT DURING WORLD
WAR II BROUGHT BY A "NATIONAL" OF AN ENEMY COUNTRY.  60 STAT. 940, 944,
35 U.S.C. SEC. 111.  THE FAILURE TO USE THE TERM "ENEMY" WAS
DELIBERATE.  THE NEXT SECTION OF THE 1946 ACT REFERS TO "RIGHTS OF ANY
ENEMY  ...  AS DEFINED BY THE TRADING WITH THE ENEMY ACT  ...  ."  60
STAT. 940, 944, 35 U.S.C. SEC. 112.  AND THE BILL AS DRAFTED IN THE
HOUSE COMMITTEE ON PATENTS, H.R. REP. NO. 1498, 79TH CONG., 2D SESS.
(1946), USED THE TERM "NATIONAL" AS USED IN PROPOSED BILL H.R. 2111
(SEC. 9), REJECTING THE TERM "ALIEN ENEMY" AS USED IN THE 1921
LEGISLATION AND IN PROPOSED BILL H.R. 4079 (SEC. 10).  THIS WAS DONE
AFTER THE DIFFERENCE IN MEANING OF THE TERM WAS CALLED TO THE ATTENTION
OF THE COMMITTEE BY THE OFFICE OF ALIEN PROPERTY CUSTODIAN.  HEARINGS
BEFORE THE HOUSE COMMITTEE ON PATENTS ON H.R. 2111 AND H.R. 4079, 79TH
CONG., 1ST SESS. 105 (1945). 

FN15  HEARINGS BEFORE THE SENATE COMMITTEE ON THE JUDICIARY ON H.R.
4044, 80TH CONG., 2D SESS. 197-198, 233-234 (1948).  SEE ALSO ID., AT
254-255, AND 94 CONG. REC. 551 (1948). 

FN16  ID., AT 235. 

FN17  EX PARTE KAWATO, 317 U.S. 69 (1942), IN HOLDING THAT AN ENEMY
ALIEN'S RIGHT OF ACCESS TO FEDERAL COURTS WAS NOT BARRED BY COMMON LAW
OR STATUTE, DID NOT TOUCH UPON THE CONSTITUTIONAL POWER OF CONGRESS
OVER ENEMY PROPERTY.  THE EXTENSION OF THAT POWER TO INCLUDE PROPERTY
OF AN AMERICAN CITIZEN RESIDENT IN AN ENEMY COUNTRY, THE VENUS, 8
CRANCH 253 (1814), HARDLY SUPPORTS A RESTRICTION OF THAT POWER IN CASE
OF PETITIONER, AN ENEMY CITIZEN PRESENT IN AN ENEMY COUNTRY.    IN
SILESIAN-AMERICAN CORP. V. CLARK, 332 U.S. 469, 475 (1947), THE COURT
STATED: 

"THERE IS NO DOUBT BUT THAT UNDER THE WAR POWER (ART. I, SEC. 8, CL.
11), AS HERETOFORE INTERPRETED BY THIS COURT, THE UNITED STATES, ACTING
UNDER A STATUTE, MAY VEST IN ITSELF THE PROPERTY OF A NATIONAL OF AN
ENEMY NATION.  UNQUESTIONABLY TO WAGE WAR SUCCESSFULLY, THE UNITED
STATES MAY CONFISCATE ENEMY PROPERTY.  UNITED STATES V. CHEMICAL
FOUNDATION, 272 U.S. 1, 11."    IN DISCUSSING THE REQUIREMENT THAT JUST
COMPENSATION BE PAID FOR SEIZURE OF PROPERTY OF "FRIENDLY ALIENS," THE
COURT HAD OBVIOUS REFERENCE TO THE NATIONALS OF FRIENDLY NATIONS.  332
U.S. AT 475-476, 479-480. 
..END :


















CITIES SERVICE CO. V. MCGRATH 342 U.S. 330 


NO.  305.  ARGUED JANUARY 2-3, 1952 - DECIDED JANUARY 28, 1952 - 189
F.2D 744, AFFIRMED. 


1.  THE TRADING WITH THE ENEMY ACT AUTHORIZES THE VESTING OF
OBLIGATIONS EVIDENCED BY NEGOTIABLE DEBENTURES PAYABLE TO BEARER, THE
OBLIGORS OF WHICH ARE WITHIN THE UNITED STATES, EVEN THOUGH THE
DEBENTURES THEMSELVES ARE NOT IN THE POSSESSION OF THE CUSTODIAN AND
ARE OUTSIDE THE UNITED STATES.  PP. 331-334. 

(A)  SUCH OBLIGATIONS ARE "WITHIN THE UNITED STATES" WITHIN THE
MEANING OF THE EXECUTIVE ORDER AUTHORIZING, PURSUANT TO THE ACT, THE
VESTING OF PROPERTY "WITHIN THE UNITED STATES."  P. 332, N. 6; PP. 333
334. 

2.  IT IS WITHIN THE CONSTITUTIONAL POWER OF CONGRESS TO AUTHORIZE
THE CUSTODIAN TO SEIZE AN INTEREST REPRESENTED BY A BOND OR DEBENTURE
WITHOUT SEIZING THE INSTRUMENT ITSELF, WHERE THE OBLIGOR OF THE BOND OR
DEBENTURE IS WITHIN THE UNITED STATES.  P. 334. 

3.  AMERICAN OBLIGORS WHO ARE COMPELLED, UNDER THE TRADING WITH THE
ENEMY ACT, TO MAKE PAYMENT TO THE CUSTODIAN ON NEGOTIABLE DEBENTURES,
PAYABLE TO BEARER, LOCATED OUTSIDE THE UNITED STATES WILL BE ENTITLED
UNDER THE FIFTH AMENDMENT TO "JUST COMPENSATION" TO THE EXTENT OF ANY
DOUBLE LIABILITY TO WHICH THEY MAY BE SUBJECTED IN THE EVENT A FOREIGN
COURT HOLDS THEM LIABLE TO A HOLDER IN DUE COURSE; AND SUCH CAUSE OF
ACTION WILL ACCRUE WHEN, AS, AND IF A FOREIGN COURT COMPELS THEM TO
MAKE PAYMENT TO A HOLDER IN DUE COURSE.  PP. 334-336. 

CITIES SERVICE CO. ET AL. V. MCGRATH, ATTORNEY GENERAL, SUCCESSOR TO THE
ALIEN PROPERTY CUSTODIAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN AN ACTION BY THE ATTORNEY GENERAL, AS SUCCESSOR TO THE ALIEN
PROPERTY CUSTODIAN, TO ENFORCE PAYMENT OF CERTAIN NEGOTIABLE DEBENTURES
PAYABLE TO BEARER PREVIOUSLY VESTED UNDER THE TRADING WITH THE ENEMY
ACT, THE DISTRICT COURT ENTERED JUDGMENT FOR THE DEFENDANTS.  93 F.
SUPP. 408.  THE COURT OF APPEALS REVERSED.  189 F.2D 744.  THIS COURT
GRANTED CERTIORARI.  342 U.S. 865.  AFFIRMED, P. 336. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN THIS SUIT THE ATTORNEY GENERAL OF THE UNITED STATES AS SUCCESSOR
TO THE ALIEN PROPERTY CUSTODIAN (FN1) SEEKS PAYMENT BY PETITIONERS OF
TWO 5% GOLD DEBENTURES OF THE FACE VALUE OF $1,000 EACH AND PAYABLE TO
BEARER.  PETITIONER CITIES SERVICE COMPANY IS OBLIGOR ON THE DEBENTURES
AND PETITIONER CHASE NATIONAL BANK OF NEW YORK IS THE INDENTURE
TRUSTEE.  THE OBLIGATIONS REPRESENTED BY THESE DEBENTURES HAD
PREVIOUSLY BEEN VESTED, UNDER PROVISIONS OF THE TRADING WITH THE ENEMY
ACT, (FN2) UPON A FINDING THAT THE OBLIGATIONS WERE OWNED BY A RESIDENT
AND NATIONAL OF GERMANY.  (FN3) NEITHER OF THE DEBENTURES IS OR EVER
HAS BEEN IN THE POSSESSION OF RESPONDENT.  ONE OF THE DEBENTURES,
ALTHOUGH NOT MATURING UNTIL 1969, WAS PRESENTED FOR REDEMPTION AT
CHASE'S OFFICES IN NEW YORK CITY ON JANUARY 5, 1950, SUBSEQUENT TO THE
DATE OF THE VESTING ORDER.  A LEGEND WAS THEN TYPED ON THE DEBENTURE
RECITING THE ISSUANCE OF THE VESTING ORDER AND THE CLAIMS OF RESPONDENT
THEREUNDER.   THIS DEBENTURE IS AT PRESENT IN THE POSSESSION OF A
BROKERAGE HOUSE IN NEW YORK CITY.  (FN4)  THE OTHER DEBENTURE MATURED
IN 1950 BUT HAS NEVER BEEN PRESENTED FOR PAYMENT.  ITS WHEREABOUTS ARE
UNKNOWN BUT IT WAS LAST REPORTED TO BE IN BERLIN IN THE HANDS OF THE
RUSSIANS.  (FN5) 

THE DISTRICT COURT GRANTED SUMMARY JUDGMENT FOR PETITIONERS ON THE
GROUND THAT THE ATTORNEY GENERAL, IN ISSUING THE VESTING ORDER IN
QUESTION, HAD EXCEEDED HIS AUTHORITY TO VEST PROPERTY "WITHIN THE
UNITED STATES."  (FN6)  93 F. SUPP. 408.  THE COURT FELT THAT THE
OBLIGATIONS REPRESENTED BY THE DEBENTURES WERE INSEPARABLE FROM THE
CERTIFICATES THEMSELVES, WHICH, INSOFAR AS IS KNOWN, WERE OUTSIDE THIS
COUNTRY AT THE TIME OF VESTING.  THE COURT OF APPEALS REVERSED AND
DIRECTED SUMMARY JUDGMENT FOR RESPONDENT, HOLDING THAT THE ACT
AUTHORIZED THE SEIZURE AND ENFORCEMENT OF OBLIGATIONS EVIDENCED BY
DEBENTURES OUTSIDE THE COUNTRY SO LONG AS THE OBLIGOR IS WITHIN THE
UNITED STATES.  189 F.2D 744.  IN REACHING THIS RESULT, THE COURT OF
APPEALS INDICATED THAT PETITIONERS WOULD HAVE A "CLAIM AGAINST THE
TREASURY FOR RECOUPMENT" IN THE EVENT OF A SUBSEQUENT RECOVERY AGAINST
THEM IN A FOREIGN COURT BY A BONA FIDE HOLDER OF THE DEBENTURES. 
OTHERWISE, THE COURT FELT, THE VESTING ORDER WOULD TAKE PETITIONERS'
PROPERTY IN VIOLATION OF THE FIFTH AMENDMENT.  ID., AT 747-749.  WE
GRANTED CERTIORARI, 342 U.S. 865. 

WE BELIEVE THAT THE TRADING WITH THE ENEMY ACT GRANTS THE AUTHORITY
NECESSARY TO VEST OBLIGATIONS EVIDENCED BY DOMESTIC NEGOTIABLE BEARER
DEBENTURES EVEN THOUGH THE DEBENTURES THEMSELVES ARE OUTSIDE THE UNITED
STATES.  BY SEC. 7(C) OF THE ACT, ENACTED DURING WORLD WAR I, THE
PRESIDENT IS GIVEN THE AUTHORITY TO SEIZE ALL ENEMY PROPERTY,
"INCLUDING  ...  CHOSES IN ACTION, AND RIGHTS AND CLAIMS OF EVERY
CHARACTER AND DESCRIPTION OWING OR BELONGING TO  ...  AN ENEMY  ...
."  AT THE BEGINNING OF WORLD WAR II, CONGRESS MADE AN EVEN BROADER
GRANT OF AUTHORITY TO THE EXECUTIVE THROUGH AN AMENDMENT TO SEC. 5(B),
PROVIDING THAT "ANY PROPERTY OR INTEREST OF ANY FOREIGN COUNTRY OR
NATIONAL THEREOF SHALL VEST, WHEN, AS, AND UPON THE TERMS, DIRECTED BY
THE PRESIDENT  ...  ."  SEE MARKHAM V. CABELL, 326 U.S. 404, 411
(1945); SILESIAN-AMERICAN CORP. V. CLARK, 332 U.S. 469, 479 (1947);
CLARK V. UEBERSEE FINANZ-KORP., 332 U.S. 480, 485-486 (1947).  THAT THE
OBLIGATIONS REPRESENTED BY NEGOTIABLE BEARER DEBENTURES COME WITHIN
THESE BROAD TERMS IS BEYOND QUESTION. 

PETITIONERS URGE, HOWEVER, THAT THE DEBENTURES THEMSELVES CONSTITUTE
THE DEBT, AND SINCE THE DEBENTURES WERE LOCATED OUTSIDE OF THE UNITED
STATES AT THE TIME OF VESTING, THE DEBTS DID NOT HAVE A SITUS WITHIN
THE UNITED STATES AND THEREFORE WERE NOT PROPER SUBJECTS OF SEIZURE. 
TO APPLY THIS FICTION HERE WOULD NOT ONLY PROVIDE A SANCTUARY FOR ENEMY
INVESTMENTS AND DEFEAT THE RECOVERY OF AMERICAN SECURITIES LOOTED BY
CONQUERING FORCES; IT WOULD ALSO RESTRICT THE EXERCISE OF THE WAR
POWERS OF THE UNITED STATES.  CONGRESS DID NOT SO INTEND.  THE
CUSTODIAN'S AUTHORITY TO REACH A DEBENTURE OR BONDED INDEBTEDNESS
WITHOUT SEIZURE OF THE INSTRUMENT ITSELF IS EXPLICITLY RECOGNIZED BY
SEC. 9(N) OF THE ACT, WHICH PROVIDES THAT "IN THE CASE OF PROPERTY
CONSISTING  ...  OF BONDED OR OTHER INDEBTEDNESS  ...  , EVIDENCED  ...
BY BONDS OR BY OTHER CERTIFICATES OF INTEREST  ...  OR INDEBTEDNESS
...  , WHERE THE RIGHT, TITLE, AND INTEREST IN THE PROPERTY (BUT NOT
THE ACTUAL  ... BOND OR OTHER CERTIFICATE OF INTEREST OR INDEBTEDNESS)
WAS CONVEYED, TRANSFERRED, ASSIGNED, DELIVERED, OR PAID TO THE ALIEN
PROPERTY CUSTODIAN, OR SEIZED BY HIM  ...  ," THEN THE PRESIDENT MAY,
IN PROPER CASES, ORDER RETURN OF 80% OF THE PROPERTY.  (FN7)  MOREOVER,
IN GIVING THE CUSTODIAN THIS POWER TO SEIZE AN INTEREST REPRESENTED BY
A BOND OR DEBENTURE WITHOUT SEIZURE OF THE ACTUAL INSTRUMENT, CONGRESS
TRANSGRESSED NO CONSTITUTIONAL LIMITATIONS ON ITS JURISDICTION.  AS THE
COURT OF APPEALS POINTED OUT, THE OBLIGOR, CITIES SERVICE COMPANY, IS
WITHIN THE UNITED STATES AND THE OBLIGATION OF WHICH THE DEBENTURE IS
EVIDENCE CAN BE EFFECTIVELY DEALT WITH THROUGH THE EXERCISE OF
JURISDICTION OVER THAT PETITIONER.  SEE STANDARD OIL CO. V. NEW JERSEY,
341 U.S. 428, 438-439 (1951). 

A MORE SERIOUS QUESTION IS WHETHER APPLICATION OF THE SEIZURE
PROVISIONS OF THE ACT TO PETITIONERS WILL TAKE THEIR PROPERTY IN
VIOLATION OF THE FIFTH AMENDMENT, UNLESS THEY HAVE A REMEDY AGAINST THE
UNITED STATES IN THE EVENT A FOREIGN COURT HOLDS THEM LIABLE TO A
HOLDER IN DUE COURSE OF THE DEBENTURES.  WHILE PETITIONERS CONCEDE THAT
THE ACT DISCHARGES THEM FROM LIABILITY IN ANY COURT IN THE UNITED
STATES, (FN8) THEY CONTEND THAT THEY HAVE EXTENSIVE PROPERTIES OVER THE
WORLD WHICH SUBJECT THEM TO FOREIGN SUITS FROM WHICH THE ACT AFFORDS NO
CERTAIN PROTECTION.  PETITIONERS READILY ADMIT THAT THE COURT OF THE
COUNTRY IN WHICH SUIT IS BROUGHT MAY APPLY THE LAWS OF THE UNITED
STATES AND RECOGNIZE THEIR PRIOR PAYMENT TO THE ATTORNEY GENERAL AS A
COMPLETE DEFENSE; AND THAT THE HOLDER, IF QUALIFIED, MIGHT FILE A CLAIM
UNDER THE ACT.  NEVERTHELESS, THEY INSIST, THERE REMAINS AT LEAST THE
POSSIBILITY THAT THEY WILL BE EXPOSED TO LIABILITY IN A FOREIGN COURT. 
WHILE THEIR DEFENSE TO SUCH LITIGATION SEEMS ADEQUATE AND FINAL PAYMENT
BY THEM IMPROBABLE, WE AGREE THAT PETITIONERS MIGHT SUFFER JUDGMENT THE
PAYMENT OF WHICH WOULD EFFECT A DOUBLE RECOVERY AGAINST THEM.  IN THAT
EVENT, PETITIONERS WILL HAVE THE RIGHT TO RECOUP FROM THE UNITED
STATES, FOR A "TAKING" OF THEIR PROPERTY WITHIN THE MEANING OF THE
FIFTH AMENDMENT, "JUST COMPENSATION" TO THE EXTENT OF THEIR DOUBLE
LIABILITY.  (FN9)  SUCH CAUSE OF ACTION WILL ACCRUE WHEN, AS, AND IF A
FOREIGN COURT FORCES PETITIONERS TO PAY A HOLDER IN DUE COURSE OF THE
DEBENTURES.  WE AGREE WITH THE COURT OF APPEALS THAT ONLY WITH THIS
ASSURANCE AGAINST DOUBLE LIABILITY CAN IT FAIRLY BE SAID THAT THE
PRESENT SEIZURE IS NOT ITSELF AN UNCONSTITUTIONAL TAKING OF
PETITIONERS' PROPERTY.  AFFIRMED. 

FN1  THE POWERS AND FUNCTIONS OF THE ALIEN PROPERTY CUSTODIAN WERE
TRANSFERRED TO THE ATTORNEY GENERAL BY EXEC. ORDER NO. 9788 (OCT. 14,
1946), 11 FED. REG. 11981.  THE TERMS "CUSTODIAN" AND "ATTORNEY
GENERAL" ARE USED INTERCHANGEABLY IN THIS OPINION. 

FN2  40 STAT. 411, AS AMENDED, 50 U.S.C. APP. SEC. 1 ET SEQ. 

FN3  VESTING ORDER NO. 12960 (MARCH 11, 1949), 14 FED. REG. 1405. 
THE VESTING ORDER RECITED THAT THE OBLIGATIONS WERE "OWNED OR
CONTROLLED BY, PAYABLE OR DELIVERABLE TO, HELD ON BEHALF OF OR ON
ACCOUNT OF, OR OWING TO, OR WERE EVIDENCE OF OWNERSHIP OR CONTROL BY,"
THE SPECIFIED RESIDENT AND NATIONAL OF GERMANY. 

FN4  WITH RESPECT TO THIS DEBENTURE, THE ATTORNEY GENERAL SEEKS
PAYMENT BY PETITIONERS OF THE PROCEEDS OF REDEMPTION PLUS ACCRUED
INTEREST; OR, IN THE ALTERNATIVE, THE ISSUANCE TO HIM OF A NEW
DEBENTURE OF THE SAME SERIES AND FOR THE SAME FACE VALUE, AND WITH THE
SAME NUMBER OF UNPAID INTEREST COUPONS ATTACHED. 

FN5  WITH RESPECT TO THIS DEBENTURE, THE ATTORNEY GENERAL SEEKS
PAYMENT OF THE REDEMPTION PROCEEDS PLUS ACCRUED INTEREST. 

FN6  BY SEC. 2(C) OF EXEC. ORDER NO. 9095 (MARCH 11, 1942), 7 FED.
REG. 1971, AS AMENDED BY EXEC. ORDER NO. 9193 (JULY 6, 1942), 7 FED.
REG. 5205, AND EXEC. ORDER NO. 9567 (JUNE 8, 1945), 10 FED. REG. 6917,
THE PRESIDENT, ACTING PURSUANT TO THE TRADING WITH THE ENEMY ACT, AS
AMENDED, DELEGATED TO THE ATTORNEY GENERAL AUTHORITY TO VEST PROPERTY
"WITHIN THE UNITED STATES" OWNED BY A DESIGNATED ENEMY COUNTRY OR
NATIONAL THEREOF, WITH SPECIFIED EXCEPTIONS NOT RELEVANT HERE. 
ASSUMING, WITHOUT DECIDING, THAT THIS LANGUAGE IS NARROWER THAN THE
LANGUAGE OF SECS. 5(B) AND 7(C) OF THE ACT, AS AMENDED, WE NEED NOT
DECIDE WHICH LANGUAGE IS CONTROLLING.  FOR, AS INDICATED BELOW, WE
BELIEVE THAT IN ANY EVENT THE OBLIGATIONS VESTED HERE WERE "WITHIN THE
UNITED STATES" AND THUS COME WITHIN THE PRESUMABLY NARROWER TERMS OF
THE EXECUTIVE ORDER. 

FN7  SECTION 9(N) WAS ADDED IN 1928 BY THE SETTLEMENT OF WAR CLAIMS
ACT, 45 STAT. 254, WHICH PROVIDED IN GENERAL FOR THE RETURN OF 80% OF
ALL SEIZED PROPERTY.  THE PURPOSE OF SEC. 9(N) WAS TO AUTHORIZE THE
PRESIDENT, WHERE HE HAD SEIZED A STOCK OR BOND INTEREST WITHOUT SEIZING
THE INSTRUMENT ITSELF, TO MAKE SUCH 80% RETURN TO THE CURRENT HOLDER OF
THE INSTRUMENT.  SEE H.R. REP. NO. 17, 70TH CONG., 1ST SESS. 21; S.
REP. NO. 273, 70TH CONG., 1ST SESS. 30. 

FN8  SEE SECS. 5(B)(2) AND 7(E). 

FN9  SUCH RECOVERY WILL NOT BE PREVENTED BY SEC. 7(C) OF THE ACT. 
THAT SUBSECTION PROVIDES IN PART: 

"THE SOLE RELIEF AND REMEDY OF ANY PERSON HAVING ANY CLAIM TO ANY
MONEY OR OTHER PROPERTY HERETOFORE OR HEREAFTER CONVEYED, TRANSFERRED,
ASSIGNED, DELIVERED, OR PAID OVER TO THE ALIEN PROPERTY CUSTODIAN, OR
REQUIRED SO TO BE, OR SEIZED BY HIM SHALL BE THAT PROVIDED BY THE TERMS
OF THIS ACT  ...  ." 

PETITIONERS, HOWEVER, WILL NOT BE CLAIMING "ANY MONEY OR OTHER
PROPERTY  ...  CONVEYED, TRANSFERRED, ASSIGNED, DELIVERED, OR PAID OVER
TO THE ALIEN PROPERTY CUSTODIAN, OR REQUIRED SO TO BE, OR SEIZED BY HIM
... ."  RATHER THEY WILL BE CLAIMING JUST COMPENSATION UNDER THE FIFTH
AMENDMENT FOR A TAKING OF THEIR PROPERTY.  THEREFORE THE PROVISION
QUOTED ABOVE WILL NOT APPLY TO THEM. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE MINTON JOINS, CONCURRING. 

WE CONCUR IN THE RESULT AND IN THE OPINION EXCEPT AS TO ITS
DECLARATION THAT PETITIONERS WILL BE ABLE TO RECOUP JUST COMPENSATION
FROM THE UNITED STATES SHOULD THEY SUFFER A JUDGMENT EFFECTING A SECOND
RECOVERY AGAINST THEM. 

IN OUR VIEW THERE IS NO PRESENT TAKING OF THE PROPERTY OF CITIES
SERVICE, BUT ONLY OF THE MONEY DUE FROM CITIES SERVICE TO THE FOREIGN
BONDHOLDER ON MATURITY OF THE OBLIGATION.  STANDARD OIL CO. V. NEW
JERSEY, 341 U.S. 428.  IT MAY BE THAT IF CITIES SERVICE IS LATER
REQUIRED TO PAY A CLAIMANT OTHER THAN THE ALIEN PROPERTY CUSTODIAN, IT
WILL HAVE A CLAIM AGAINST THE UNITED STATES FOR SATISFACTION OF ITS
EXPENDITURE.  DETERMINATION THAT THE UNITED STATES OWES SUCH AN
OBLIGATION SHOULD AWAIT DEVELOPMENT OF THE CIRCUMSTANCES OF A SECOND
JUDGMENT.  DIRECTION DER DISCONTO-GESELLSCHAFT V. U.S. STEEL CORP., 300
F. 741, 743; 267 U.S. 22, 29. 
..END :
















BOYCE MOTOR LINES, INC. V. UNITED STATES 342 U.S. 337 


NO. 167.  ARGUED DECEMBER 4, 1951 - DECIDED JANUARY 28, 1952 - 188 F.2D
889, AFFIRMED. 


A REGULATION PROMULGATED BY THE INTERSTATE COMMERCE COMMISSION UNDER
18 U.S.C. SEC. 835 PROVIDES THAT DRIVERS OF MOTOR VEHICLES TRANSPORTING
INFLAMMABLES OR EXPLOSIVES "SHALL AVOID, SO FAR AS PRACTICABLE,  ...
DRIVING INTO OR THROUGH CONGESTED THOROUGHFARES, PLACES WHERE CROWDS
ARE ASSEMBLED, STREET CAR TRACKS, TUNNELS, VIADUCTS, AND DANGEROUS
CROSSINGS."  UNDER THE STATUTE, "WHOEVER KNOWINGLY VIOLATES" ANY SUCH
REGULATION IS SUBJECT TO FINE AND IMPRISONMENT.  PETITIONER WAS
INDICTED FOR HAVING ON THREE SEPARATE OCCASIONS OPERATED THROUGH THE
HOLLAND TUNNEL A TRUCK CARRYING INFLAMMABLE CARBON BISULPHIDE.  THE
INDICTMENT ALLEGED THAT "THERE WERE OTHER AVAILABLE AND MORE
PRACTICABLE ROUTES" FOR THE SHIPMENTS, AND THAT PETITIONER "WELL KNEW"
THAT THE SHIPMENTS WERE IN VIOLATION OF THE REGULATION.  HELD:  THE
REGULATION WAS NOT VOID FOR VAGUENESS, AND THE DISTRICT COURT SHOULD
NOT HAVE DISMISSED THE COUNTS OF THE INDICTMENT BASED THEREON.  PP. 338
343. 

1.  NO MORE THAN A REASONABLE DEGREE OF CERTAINTY CAN BE DEMANDED IN
THE LANGUAGE OF THE PROHIBITION CONTAINED IN A CRIMINAL STATUTE, AND IT
IS NOT UNFAIR TO REQUIRE THAT ONE WHO DELIBERATELY GOES PERILOUSLY
CLOSE TO AN AREA OF PROSCRIBED CONDUCT SHALL TAKE THE RISK THAT HE MAY
CROSS THE LINE.  P. 340. 

2.  IN ORDER TO CONVICT, THE GOVERNMENT MUST PROVE NOT ONLY THAT
PETITIONER COULD HAVE TAKEN ANOTHER ROUTE WHICH WAS BOTH COMMERCIALLY
PRACTICABLE AND APPRECIABLY SAFER, BUT ALSO THAT PETITIONER KNEW THERE
WAS SUCH A PRACTICABLE, SAFER ROUTE AND DELIBERATELY TOOK THE MORE
DANGEROUS ROUTE THROUGH THE TUNNEL, OR THAT PETITIONER WILLFULLY
NEGLECTED TO INQUIRE INTO THE AVAILABILITY OF SUCH AN ALTERNATIVE
ROUTE.  PP. 342-343. 

BOYCE MOTOR LINES, INC. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN A CRIMINAL PROSECUTION OF PETITIONER, THE DISTRICT COURT, ON THE
GROUND OF THE INVALIDITY OF THE REGULATION, DISMISSED THE COUNTS OF THE
INDICTMENT WHICH WERE BASED UPON ALLEGED VIOLATIONS OF A REGULATION OF
THE INTERSTATE COMMERCE COMMISSION.  90 F. SUPP. 996.  THE COURT OF
APPEALS REVERSED.   188 F.2D 889.  THIS COURT GRANTED CERTIORARI.  342
U.S. 846.  AFFIRMED, P. 343. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER IS CHARGED WITH THE VIOLATION OF A REGULATION
PROMULGATED BY THE INTERSTATE COMMERCE COMMISSION UNDER 18 U.S.C. SEC.
835.  (FN1)  THE REGULATION PROVIDES: 

"DRIVERS OF MOTOR VEHICLES TRANSPORTING ANY EXPLOSIVE, INFLAMMABLE
LIQUID, INFLAMMABLE COMPRESSED GAS, OR POISONOUS GAS SHALL AVOID, SO
FAR AS PRACTICABLE, AND, WHERE FEASIBLE, BY PREARRANGEMENT OF ROUTES,
DRIVING INTO OR THROUGH CONGESTED THOROUGHFARES, PLACES WHERE CROWDS
ARE ASSEMBLED, STREET CAR TRACKS, TUNNELS, VIADUCTS, AND DANGEROUS
CROSSINGS."  (FN2) 

THE STATUTE DIRECTS THAT "WHOEVER KNOWINGLY VIOLATES" THE REGULATION
SHALL BE SUBJECT TO FINE OR IMPRISONMENT OR BOTH.  (FN3) 

THE INDICTMENT, IN COUNTS 1, 3, AND 5, CHARGES THAT PETITIONER ON
THREE SEPARATE OCCASIONS SENT ONE OF ITS TRUCKS CARRYING CARBON
BISULPHIDE, A DANGEROUS AND INFLAMMABLE LIQUID, THROUGH THE HOLLAND
TUNNEL, A CONGESTED THOROUGHFARE.  IN EACH INSTANCE, THE TRUCK WAS EN
ROUTE FROM CASCADE MILLS, NEW YORK, TO BROOKLYN, NEW YORK.  ON THE
THIRD OF THESE TRIPS THE LOAD OF CARBON BISULPHIDE EXPLODED IN THE
TUNNEL AND ABOUT SIXTY PERSONS WERE INJURED.  THE INDICTMENT FURTHER
STATES THAT "THERE WERE OTHER AVAILABLE AND MORE PRACTICABLE ROUTES FOR
THE TRANSPORTATION OF SAID SHIPMENT, AND  ...  THE PETITIONER WELL KNEW
THAT THE TRANSPORTATION OF THE SHIPMENT OF CARBON BISULPHIDE  ... INTO
THE  ...  HOLLAND TUNNEL WAS IN VIOLATION OF THE REGULATIONS
PROMULGATED  ...  BY THE INTERSTATE COMMERCE COMMISSION  ...  ."  (FN4)
THERE IS NO ALLEGATION AS TO THE FEASIBILITY OF PREARRANGEMENT OF
ROUTES, AND PETITIONER IS NOT CHARGED WITH ANY OMISSION IN THAT
RESPECT. 

THE DISTRICT COURT DISMISSED THOSE COUNTS OF THE INDICTMENT WHICH
WERE BASED UPON THE REGULATION IN QUESTION, HOLDING IT TO BE INVALID ON
THE GROUND THAT THE WORDS "SO FAR AS PRACTICABLE, AND, WERE FEASIBLE"
ARE "SO VAGUE AND INDEFINITE AS TO MAKE THE STANDARD OF GUILT
CONJECTURAL."  90 F. SUPP. 996, 998.  THE COURT OF APPEALS FOR THE
THIRD CIRCUIT REVERSED, HOLDING THAT THE REGULATION, INTERPRETED IN
CONJUNCTION WITH THE STATUTE, ESTABLISHES A REASONABLY CERTAIN STANDARD
OF CONDUCT.  188 F.2D 889.  WE GRANTED CERTIORARI.  342 U.S. 846. 

A CRIMINAL STATUTE MUST BE SUFFICIENTLY DEFINITE TO GIVE NOTICE OF
THE REQUIRED CONDUCT TO ONE WHO WOULD AVOID ITS PENALTIES, AND TO GUIDE
THE JUDGE IN ITS APPLICATION AND THE LAWYER IN DEFENDING ONE CHARGED
WITH ITS VIOLATION.  (FN5)  BUT FEW WORDS POSSESS THE PRECISION OF
MATHEMATICAL SYMBOLS, MOST STATUTES MUST DEAL WITH UNTOLD AND
UNFORESEEN VARIATIONS IN FACTUAL SITUATIONS, AND THE PRACTICAL
NECESSITIES OF DISCHARGING THE BUSINESS OF GOVERNMENT INEVITABLY LIMIT
THE SPECIFICITY WITH WHICH LEGISLATORS CAN SPELL OUT PROHIBITIONS. 
CONSEQUENTLY, NO MORE THAN A REASONABLE DEGREE OF CERTAINTY CAN BE
DEMANDED.  NOR IS IT UNFAIR TO REQUIRE THAT ONE WHO DELIBERATELY GOES
PERILOUSLY CLOSE TO AN AREA OF PROSCRIBED CONDUCT SHALL TAKE THE RISK
THAT HE MAY CROSS THE LINE.  (FN6) 

IN SPROLES V. BINFORD, 286 U.S. 374 (1932), THESE PRINCIPLES WERE
APPLIED IN UPHOLDING WORDS IN A CRIMINAL STATUTE SIMILAR TO THOSE NOW
BEFORE US.  CHIEF JUSTICE HUGHES, SPEAKING FOR A UNANIMOUS COURT, THERE
SAID: 

"'SHORTEST PRACTICABLE ROUTE' IS NOT AN EXPRESSION TOO VAGUE TO BE
UNDERSTOOD.  THE REQUIREMENT OF REASONABLE CERTAINTY DOES NOT PRECLUDE
THE USE OF ORDINARY TERMS TO EXPRESS IDEAS WHICH FIND ADEQUATE
INTERPRETATION IN COMMON USAGE AND UNDERSTANDING  ...  .  THE USE OF
COMMON EXPERIENCE AS A GLOSSARY IS NECESSARY TO MEET THE PRACTICAL
DEMANDS OF LEGISLATION."  (FN7) 

THE REGULATION CHALLENGED HERE IS THE PRODUCT OF A LONG HISTORY OF
REGULATION OF THE TRANSPORTATION OF EXPLOSIVES AND INFLAMMABLES. 
CONGRESS RECOGNIZED THE NEED FOR PROTECTING THE PUBLIC AGAINST THE
HAZARDS INVOLVED IN TRANSPORTING EXPLOSIVES AS EARLY AS 1866.  (FN8)
THE INADEQUACY OF THE LEGISLATION THEN ENACTED LED TO THE PASSAGE, IN
1908, OF THE TRANSPORTATION OF EXPLOSIVES ACT, (FN9) WHICH WAS LATER
EXTENDED TO COVER INFLAMMABLES.  (FN10)  IN ACCORDANCE WITH THAT ACT,
THE COMMISSION IN THE SAME YEAR ISSUED REGULATIONS APPLICABLE TO
RAILROADS.  IN 1934 THE COMMISSION EXERCISED ITS AUTHORITY UNDER THE
ACT TO PROMULGATE REGULATIONS GOVERNING MOTOR TRUCKS, INCLUDING THE
REGULATION HERE IN QUESTION.  (FN11)  IN 1940 THIS REGULATION WAS
AMENDED TO SUBSTANTIALLY ITS PRESENT TERMINOLOGY.  (FN12)  THAT
TERMINOLOGY WAS ADOPTED ONLY AFTER MORE THAN THREE YEARS OF STUDY AND A
NUMBER OF DRAFTS.  THE TRUCKING INDUSTRY PARTICIPATED EXTENSIVELY IN
THIS PROCESS, MAKING SUGGESTIONS RELATING TO DRAFTS SUBMITTED TO
CARRIERS AND THEIR ORGANIZATIONS, AND TAKING PART IN SEVERAL HEARINGS. 
THE REGULATION'S HISTORY INDICATES THE CAREFUL CONSIDERATION WHICH WAS
GIVEN TO THE DIFFICULTIES INVOLVED IN FRAMING A REGULATION WHICH WOULD
DEAL PRACTICALLY WITH THIS ASPECT OF THE PROBLEM PRESENTED BY THE
NECESSARY TRANSPORTATION OF DANGEROUS EXPLOSIVES ON THE HIGHWAYS. 
(FN13) 

THE STATUTE PUNISHES ONLY THOSE WHO KNOWINGLY VIOLATE THE
REGULATION.  THIS REQUIREMENT OF THE PRESENCE OF CULPABLE INTENT AS A
NECESSARY ELEMENT OF THE OFFENSE DOES MUCH TO DESTROY ANY FORCE IN THE
ARGUMENT THAT APPLICATION OF THE REGULATION WOULD BE SO UNFAIR THAT IT
MUST BE HELD INVALID.  (FN14)  THAT IS EVIDENT FROM A CONSIDERATION OF
THE EFFECT OF THE REQUIREMENT IN THIS CASE.  TO SUSTAIN A CONVICTION,
THE GOVERNMENT NOT ONLY MUST PROVE THAT PETITIONER COULD HAVE TAKEN
ANOTHER ROUTE WHICH WAS BOTH COMMERCIALLY PRACTICABLE AND APPRECIABLY
SAFER (IN ITS AVOIDANCE OF CROWDED THOROUGHFARES, ETC.) THAN THE ONE IT
DID FOLLOW.  IT MUST ALSO BE SHOWN THAT PETITIONER KNEW THAT THERE WAS
SUCH A PRACTICABLE, SAFER ROUTE AND YET DELIBERATELY TOOK THE MORE
DANGEROUS ROUTE THROUGH THE TUNNEL, OR THAT PETITIONER WILLFULLY
NEGLECTED TO EXERCISE ITS DUTY UNDER THE REGULATION TO INQUIRE INTO THE
AVAILABILITY OF SUCH AN ALTERNATIVE ROUTE.  (FN15) 

IN AN EFFORT TO GIVE POINT TO ITS ARGUMENT, PETITIONER ASSERTS THAT
THERE WAS NO PRACTICABLE ROUTE ITS TRUCKS MIGHT HAVE FOLLOWED WHICH DID
NOT PASS THROUGH PLACES THEY WERE REQUIRED TO AVOID.  IF IT IS TRUE
THAT IN THE CONGESTION SURROUNDING THE LOWER HUDSON THERE WAS NO
PRACTICABLE WAY OF CROSSING THE RIVER WHICH WOULD HAVE AVOIDED SUCH
POINTS OF DANGER TO A SUBSTANTIALLY GREATER EXTENT THAN THE ROUTE
TAKEN, THEN PETITIONER HAS NOT VIOLATED THE REGULATION.  BUT THAT IS
PLAINLY A MATTER FOR PROOF AT THE TRIAL.  WE ARE NOT SO CONVERSANT WITH
ALL THE ROUTES IN THAT AREA THAT WE MAY, WITH NO FACTS IN THE RECORD
BEFORE US, ASSUME THE ALLEGATIONS OF THE INDICTMENT TO BE FALSE. 
(FN16)  WE WILL NOT THUS DISTORT THE JUDICIAL NOTICE CONCEPT TO STRIKE
DOWN A REGULATION ADOPTED ONLY AFTER MUCH CONSULTATION WITH THOSE
AFFECTED AND PENALIZING ONLY THOSE WHO KNOWINGLY VIOLATE ITS
PROHIBITION. 

WE THEREFORE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS REMANDING
THE CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO REINSTATE COUNTS 1,
3, AND 5 OF THE INDICTMENT.  AFFIRMED. 

FN1  18 U.S.C. SEC. 835: 

"THE INTERSTATE COMMERCE COMMISSION SHALL FORMULATE REGULATIONS FOR
THE SAFE TRANSPORTATION WITHIN THE LIMITS OF THE JURISDICTION OF THE
UNITED STATES OF EXPLOSIVES AND OTHER DANGEROUS ARTICLES, INCLUDING
FLAMMABLE LIQUIDS, FLAMMABLE SOLIDS, OXIDIZING MATERIALS, CORROSIVE
LIQUIDS, COMPRESSED GASES, AND POISONOUS SUBSTANCES, WHICH SHALL BE
BINDING UPON ALL COMMON CARRIERS ENGAGED IN INTERSTATE OR FOREIGN
COMMERCE WHICH TRANSPORT EXPLOSIVES OR OTHER DANGEROUS ARTICLES BY
LAND, AND UPON ALL SHIPPERS MAKING SHIPMENTS OF EXPLOSIVES OR OTHER
DANGEROUS ARTICLES VIA ANY COMMON CARRIER ENGAGED IN INTERSTATE OR
FOREIGN COMMERCE BY LAND OR WATER. 

     *         *         *         *         * 

"SUCH REGULATIONS SHALL BE IN ACCORD WITH THE BEST-KNOWN PRACTICABLE
MEANS FOR SECURING SAFETY IN TRANSIT, COVERING THE PACKING, MARKING,
LOADING, HANDLING WHILE IN TRANSIT, AND THE PRECAUTIONS NECESSARY TO
DETERMINE WHETHER THE MATERIAL WHEN OFFERED IS IN PROPER CONDITION TO
TRANSPORT." 

FN2  49 CFR SEC. 197.1(B). 

FN3  "WHOEVER KNOWINGLY VIOLATES ANY SUCH REGULATION SHALL BE FINED
NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH;
AND, IF THE DEATH OR BODILY INJURY OF ANY PERSON RESULTS FROM SUCH
VIOLATION, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE
THAN TEN YEARS, OR BOTH."  18 U.S.C. SEC. 835 (SIXTH PARAGRAPH). 

FN4  R. 2. 

FN5  LANZETTA V. NEW JERSEY, 306 U.S. 451 (1939). 

FN6  NASH V. UNITED STATES, 229 U.S. 373, 377 (1913); HYGRADE
PROVISION CO. V. SHERMAN, 266 U.S. 497, 502-503 (1925); UNITED STATES
V. PETRILLO, 332 U.S. 1, 7-8 (1947). 

FN7  SPROLES V. BINFORD, 286 U.S. 374, 393 (1932).  THE PROVISION
WHICH WAS THERE CHALLENGED AND UPHELD WAS CONCERNED BASICALLY WITH A
REQUIREMENT AS TO DISTANCE, A REQUIREMENT APPLYING WITHIN NECESSARY
LIMITS OF PRACTICABILITY, JUST AS THE REGULATION HERE CHALLENGED IS
CONCERNED BASICALLY WITH AVOIDANCE OF DESIGNATED POINTS OF DANGER,
WITHIN LIKE LIMITS OF PRACTICABILITY. 

FN8  14 STAT. 81. 

FN9  35 STAT. 554, AS AMENDED, 35 STAT. 1134. 

FN10  41 STAT. 1444. 

FN11  49 CFR, 1938, SEC. 85.34(B); SEE REGULATIONS FOR TRANSPORTATION
OF EXPLOSIVES, 211 I.C.C. 351, 354 (1935). 

FN12  49 CFR, 1940 SUPP., SEC. 197-7.3082:  "DRIVERS OF MOTOR
VEHICLES TRANSPORTING INFLAMMABLE LIQUIDS SHALL AVOID, SO FAR AS
PRACTICABLE, DRIVING INTO OR THROUGH CONGESTED THOROUGHFARES, PLACES
WHERE CROWDS ARE ASSEMBLED, STREET CAR TRACKS, TUNNELS, VIADUCTS AND
DANGEROUS CROSSINGS.  SO FAR AS PRACTICABLE, THIS SHALL BE ACCOMPLISHED
BY PREARRANGEMENT OF ROUTES."  THE SECTION WAS AMENDED TO ITS PRESENT
FORM IN 1942.  7 FED. REG. 2869. 

FN13 COMPARE UNITED STATES V. PETRILLO, 332 U.S. 1, 7 (1947); MILLER
V. STRAHL, 239 U.S. 426, 434 (1915); BALTIMORE & OHIO R. CO. V.
INTERSTATE COMMERCE COMM'N, 221 U.S. 612, 620 (1911). 

FN14  SCREWS V. UNITED STATES, 325 U.S. 91, 101-103 (1945); UNITED
STATES V. RAGEN, 314 U.S. 513, 524 (1942); GORIN V. UNITED STATES, 312
U.S. 19, 27-28 (1941); OMAECHEVARRIA V. IDAHO, 246 U.S. 343, 348
(1918). 

FN15  THE OFFICERS, AGENTS, AND EMPLOYEES OF EVERY MOTOR CARRIER
CONCERNED WITH THE TRANSPORTATION OF EXPLOSIVES AND OTHER DANGEROUS
ARTICLES ARE REQUIRED TO "BECOME CONVERSANT" WITH THIS AND OTHER
REGULATIONS APPLYING TO SUCH TRANSPORTATION.  49 CFR SEC. 197.02. 

FN16  THIS CASE IS HERE TO REVIEW THE GRANTING OF A MOTION TO DISMISS
THE INDICTMENT.  IT SHOULD NOT BE NECESSARY TO MENTION THE FAMILIAR
RULE THAT, AT THIS STAGE OF THE CASE, THE ALLEGATIONS OF THE INDICTMENT
MUST BE TAKEN AS TRUE. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
FRANKFURTER JOIN, DISSENTING. 

CONGRESS APPARENTLY FOUND THE COMPREHENSIVE REGULATION NEEDED FOR THE
TRANSPORTATION OF EXPLOSIVES AND INFLAMMABLES TOO INTRICATE AND
DETAILED FOR ITS OWN PROCESSES.  IT DELEGATED THE TASK OF FRAMING
REGULATIONS TO THE INTERSTATE COMMERCE COMMISSION AND MADE A KNOWING
VIOLATION OF THEM CRIMINAL.  WHERE THE FEDERAL CRIME-MAKING POWER IS
DELEGATED TO SUCH A BODY, WE ARE JUSTIFIED IN REQUIRING CONSIDERABLE
PRECISION IN ITS EXERCISE.  KRAUS & BROS.  V. UNITED STATES, 327 U.S.
614, 621-622. 

THIS REGULATION DOES NOT PROHIBIT CARRIAGE OF EXPLOSIVES.  IT
PRESUPPOSES THAT THEY MUST BE TRANSPORTED, AND, THEREFORE, ATTEMPTS TO
LAY DOWN A RULE FOR CHOICE OF ROUTINGS.  PETITIONER WAS ADMONISHED TO
AVOID CONGESTED THOROUGHFARES, PLACES WHERE CROWDS ARE ASSEMBLED,
STREETCAR TRACKS, TUNNELS, VIADUCTS AND DANGEROUS CROSSINGS.  NOBODY
SUGGESTS THAT IT WAS POSSIBLE TO AVOID ALL OF THESE IN CARRYING THIS
SHIPMENT FROM ITS ORIGIN TO ITS DESTINATION.  NOR DOES THE REGULATION
REQUIRE THAT ALL OR ANY ONE OF THEM BE AVOIDED EXCEPT "SO FAR AS
PRACTICABLE."  I DO NOT DISAGREE WITH THE OPINION OF CHIEF JUSTICE
HUGHES AND THE COURT IN SPROLES V. BINFORD, 286 U.S. 374, THAT, IN THE
CONTEXT IN WHICH IT WAS USED, "'SHORTEST PRACTICABLE ROUTE' IS NOT AN
EXPRESSION TOO VAGUE TO BE UNDERSTOOD."  A BASIC STANDARD WAS
PRESCRIBED WITH DEFINITENESS - DISTANCE.  THAT ORDINARILY WAS TO
PREVAIL, AND, IF DEPARTED FROM, THE TRUCKER WAS TO BE PREPARED TO OFFER
PRACTICAL JUSTIFICATIONS. 

BUT THE REGULATION BEFORE US CONTAINS NO SUCH DEFINITE STANDARD FROM
WHICH ONE CAN START IN THE CALCULATION OF HIS DUTY.  IT LEAVES ALL
ROUTES EQUALLY OPEN AND ALL EQUALLY CLOSED.  THE CARRIER MUST CHOOSE
WHAT IS "PRACTICABLE," NOT, AS IN THE SPROLES CASE, BY WEIGHING
DISTANCE AGAINST OBSTACLES TO PASSAGE.  WE MAY, OF COURSE, TAKE
JUDICIAL NOTICE OF GEOGRAPHY.  DELIVERY OF THESE GOODS WAS IMPOSSIBLE
EXCEPT BY PASSING THROUGH MANY CONGESTED THOROUGHFARES AND EITHER
TUNNELS, VIADUCTS OR BRIDGES.  AN EXPLOSION WOULD HAVE BEEN EQUALLY
DANGEROUS AND EQUALLY INCRIMINATING IN ANY OF THEM.  WHAT GUIDANCE CAN
BE GLEANED FROM THIS REGULATION AS TO HOW ONE COULD WITH REASONABLE
CERTAINTY MAKE A CHOICE OF ROUTES THAT WOULD COMPLY WITH ITS
REQUIREMENTS?    IT IS SAID, HOWEVER, THAT DEFINITENESS MAY BE ACHIEVED
ON THE TRIAL BECAUSE EXPERT TESTIMONY WILL ADVISE THE JURY AS TO WHAT
ROUTES ARE PREFERABLE.  DEFECTS IN THAT SOLUTION ARE TWOFOLD:  FIRST,
THERE IS NO STANDARD BY WHICH TO DIRECT, CONFINE AND TEST THE EXPERT
OPINION TESTIMONY AND, SECOND, NONE TO GUIDE A JURY IN CHOOSING BETWEEN
CONFLICTING EXPERT OPINIONS. 

IT IS FURTHER SUGGESTED THAT A DEFENDANT IS PROTECTED AGAINST
INDEFINITENESS BECAUSE CONVICTION IS AUTHORIZED ONLY FOR KNOWING
VIOLATIONS.  THE ARGUMENT SEEMS TO BE THAT THE JURY CAN FIND THAT
DEFENDANT KNOWINGLY VIOLATED THE REGULATION ONLY IF IT FINDS THAT IT
KNEW THE MEANING OF THE REGULATION HE WAS ACCUSED OF VIOLATING.  WITH
THE EXCEPTION OF SCREWS V. UNITED STATES, 325 U.S. 91, WHICH RESTS ON A
VERY PARTICULARIZED BASIS, THE KNOWLEDGE REQUISITE TO KNOWING VIOLATION
OF A STATUTE IS FACTUAL KNOWLEDGE AS DISTINGUISHED FROM KNOWLEDGE OF
THE LAW.  I DO NOT SUPPOSE THE COURT INTENDS TO SUGGEST THAT IF
PETITIONER KNEW NOTHING OF THE EXISTENCE OF SUCH A REGULATION ITS
IGNORANCE WOULD CONSTITUTE A DEFENSE. 

THIS REGULATION PRESCRIBES NO DUTY IN TERMS OF A DEGREE OF CARE THAT
MUST BE EXERCISED IN MOVING THE SHIPMENT.  THE UTMOST CARE WOULD NOT
PROTECT DEFENDANT FROM PROSECUTION UNDER IT.  ONE CAN LEARN HIS DUTY
FROM SUCH TERMS AS "REASONABLE CARE" OR "HIGH DEGREE OF CARE."  OF
COURSE, ONE MAY NOT BE SURE WHETHER A TRIER OF FACT WILL FIND
PARTICULAR CONDUCT TO MEASURE UP TO THE REQUIREMENTS OF THE LAW, BUT HE
MAY LEARN AT LEAST WHAT HE MUST STRIVE FOR, AND THAT IS MORE THAN HE
CAN LEARN FROM THIS REGULATION. 

THIS QUESTION IS BEFORE THIS COURT ON THE INDICTMENT ONLY.  IN SOME
CIRCUMSTANCES WE MIGHT FEEL IT BETTER THAT A CASE SHOULD PROCEED TO
TRIAL AND OUR DECISION BE RESERVED UNTIL A REVIEW OF THE CONVICTION, IF
ONE RESULTS.  BUT A TRIAL CAN GIVE US NO BETTER INFORMATION THAN WE
HAVE NOW AS TO WHETHER THIS REGULATION CONTAINS SUFFICIENTLY DEFINITE
STANDARDS AND DEFINITION OF THE CRIME.  AN ACQUITTAL OR DISAGREEMENT
WOULD LEAVE THIS UNWORKABLE, INDEFINITE REGULATION STANDING AS THE ONLY
GUIDE IN A MATTER THAT BADLY NEEDS INTELLIGIBLE AND RATHER TIGHT
REGULATION.  IT WOULD REMAIN, AT LEAST TO SOME EXTENT, AS AN INCOHERENT
BARRIER AGAINST STATE ENACTMENT OR ENFORCEMENT OF LOCAL REGULATIONS OF
THE SAME SUBJECT.  WOULD IT NOT BE IN THE PUBLIC INTEREST AS WELL AS IN
THE INTEREST OF JUSTICE TO THIS PETITIONER TO PRONOUNCE THIS VAGUE
REGULATION INVALID, SO THAT THOSE WHO ARE RESPONSIBLE FOR THE
SUPERVISION OF THIS DANGEROUS TRAFFIC CAN GO ABOUT THE BUSINESS OF
FRAMING A REGULATION THAT WILL SPECIFY INTELLIGIBLE STANDARDS OF
CONDUCT? 
..END :





UNITED STATES, JAEGELER V. CARUSI 342 U.S. 347 


NO. 275.  ARGUED JANUARY 7, 1952 - DECIDED JANUARY 28, 1952 - 187 F.2D
912, VACATED AND CAUSE REMANDED. 


1.  UNDER THE ALIEN ENEMY ACT, THE POWER OF THE ATTORNEY GENERAL TO
REMOVE TO GERMANY A GERMAN CITIZEN RESIDING IN THIS COUNTRY ENDED WHEN
CONGRESS, BY THE JOINT RESOLUTION OF OCTOBER 19, 1951, TERMINATED THE
STATE OF WAR WHICH HAD EXISTED BETWEEN THE UNITED STATES AND GERMANY. 
P. 348. 

2.  PETITIONER, A GERMAN CITIZEN RESIDING IN THIS COUNTRY, WHO HAD
BEEN INTERNED IN 1942 AND ORDERED REMOVED TO GERMANY IN 1946 AND WHO
HAD APPLIED FOR A WRIT OF HABEAS CORPUS BEFORE THE PASSAGE OF THE JOINT
RESOLUTION OF OCTOBER 19, 1951, TERMINATING THE STATE OF WAR BETWEEN
THE UNITED STATES AND GERMANY, IS NO LONGER REMOVABLE UNDER THE ALIEN
ENEMY ACT AND IS ENTITLED TO HIS RELEASE.   PP. 347-349. 

UNITED STATES EX REL. JAEGELER V. CARUSI, COMMISSIONER OF IMMIGRATION
AND NATURALIZATION, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PER CURIAM. 

ON FEBRUARY 1, 1942, PURSUANT TO THE ALIEN ENEMY ACT OF 1798, AS
AMENDED, (FN1) THE ATTORNEY GENERAL OF THE UNITED STATES INTERNED
PETITIONER, A GERMAN CITIZEN RESIDING IN THIS COUNTRY.  ON MAY 3, 1946,
ACTING UNDER THE SAME STATUTE, THE ATTORNEY GENERAL DIRECTED
PETITIONER'S REMOVAL TO GERMANY.  THEREAFTER, PETITIONER APPLIED FOR A
WRIT OF HABEAS CORPUS IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA, AND ON OCTOBER 9, 1950, AFTER HEARINGS, THE DISTRICT
COURT DENIED RELIEF.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT
AFFIRMED, 187 F.2D 912, AND PETITIONER APPLIED TO THIS COURT FOR A WRIT
OF CERTIORARI ON AUGUST 24, 1951. 

WHILE THAT PETITION WAS UNDER CONSIDERATION BY THE COURT, A JOINT
RESOLUTION OF CONGRESS, APPROVED ON OCTOBER 19, 1951, TERMINATED THE
STATE OF WAR WHICH HAD EXISTED BETWEEN THE UNITED STATES AND GERMANY. 
65 STAT. 451.  WE GRANTED CERTIORARI.  342 U.S. 864 (1951). 

THE STATUTORY POWER OF THE ATTORNEY GENERAL TO REMOVE PETITIONER AS
AN ENEMY ALIEN ENDED WHEN CONGRESS TERMINATED THE WAR WITH GERMANY. 
(FN2)  THUS PETITIONER IS NO LONGER REMOVABLE UNDER THE ALIEN ENEMY
ACT. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO VACATE ITS JUDGMENT
AND DIRECT PETITIONER'S RELEASE FROM CUSTODY.  IT IS SO ORDERED. 

FN1  "WHENEVER THERE IS A DECLARED WAR BETWEEN THE UNITED STATES AND
ANY FOREIGN NATION OR GOVERNMENT, OR ANY INVASION OR PREDATORY
INCURSION IS PERPETRATED, ATTEMPTED OR THREATENED AGAINST THE TERRITORY
OF THE UNITED STATES BY ANY FOREIGN NATION OR GOVERNMENT, AND THE
PRESIDENT MAKES PUBLIC PROCLAMATION OF THE EVENT, ALL NATIVES,
CITIZENS, DENIZENS, OR SUBJECTS OF THE HOSTILE NATION OR GOVERNMENT,
BEING OF THE AGE OF FOURTEEN YEARS AND UPWARD, WHO SHALL BE WITHIN THE
UNITED STATES AND NOT ACTUALLY NATURALIZED, SHALL BE LIABLE TO BE
APPREHENDED, RESTRAINED, SECURED, AND REMOVED AS ALIEN ENEMIES.  THE
PRESIDENT IS AUTHORIZED IN ANY SUCH EVENT, BY HIS PROCLAMATION THEREOF,
OR OTHER PUBLIC ACT, TO DIRECT THE CONDUCT TO BE OBSERVED ON THE PART
OF THE UNITED STATES, TOWARD THE ALIENS WHO BECOME SO LIABLE; THE
MANNER AND DEGREE OF THE RESTRAINT TO WHICH THEY SHALL BE SUBJECT AND
IN WHAT CASES, AND UPON WHAT SECURITY THEIR RESIDENCE SHALL BE
PERMITTED, AND TO PROVIDE FOR THE REMOVAL OF THOSE WHO, NOT BEING
PERMITTED TO RESIDE WITHIN THE UNITED STATES, REFUSE OR NEGLECT TO
DEPART THEREFROM; AND TO ESTABLISH ANY OTHER REGULATIONS WHICH ARE
FOUND NECESSARY IN THE PREMISES AND FOR THE PUBLIC SAFETY."  1 STAT.
577, AS AMENDED, 50 U.S.C. SEC. 21. 

THE ATTORNEY GENERAL ACTED UNDER PRESIDENTIAL PROCLAMATION NO. 2526,
6 FED. REG. 6323, AND PRESIDENTIAL PROCLAMATION NO. 2655, 10 FED. REG.
8947. 

FN2  "RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE STATE OF WAR
DECLARED TO EXIST BETWEEN THE UNITED STATES AND THE GOVERNMENT OF
GERMANY BY THE JOINT RESOLUTION OF CONGRESS APPROVED DECEMBER 11, 1941,
IS HEREBY TERMINATED AND SUCH TERMINATION SHALL TAKE EFFECT ON THE DATE
OF ENACTMENT OF THIS RESOLUTION: PROVIDED, HOWEVER, THAT
NOTWITHSTANDING THIS RESOLUTION AND ANY PROCLAMATION ISSUED BY THE
PRESIDENT PURSUANT THERETO, ANY PROPERTY OR INTEREST WHICH PRIOR TO
JANUARY 1, 1947, WAS SUBJECT TO VESTING OR SEIZURE UNDER THE PROVISIONS
OF THE TRADING WITH THE ENEMY ACT OF OCTOBER 6, 1917 (40 STAT. 411), AS
AMENDED, OR WHICH HAS HERETOFORE BEEN VESTED OR SEIZED UNDER THAT ACT,
INCLUDING ACCRUALS TO OR PROCEEDS OF ANY SUCH PROPERTY OR INTEREST,
SHALL CONTINUE TO BE SUBJECT TO THE PROVISIONS OF THAT ACT IN THE SAME
MANNER AND TO THE SAME EXTENT AS IF THIS RESOLUTION HAD NOT BEEN
ADOPTED AND SUCH PROCLAMATION HAD NOT BEEN ISSUED.  NOTHING HEREIN AND
NOTHING IN SUCH PROCLAMATION SHALL ALTER THE STATUS, AS IT EXISTED
IMMEDIATELY PRIOR HERETO, UNDER THAT ACT, OF GERMANY OR OF ANY PERSON
WITH RESPECT TO ANY SUCH PROPERTY OR INTEREST."  H.J. RES. 289, 82D
CONG., 1ST SESS., 65 STAT. 451. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DISPOSITION OF
THIS CASE. 
..END :




















BRIGGS V. ELLIOTT 342 U.S. 350 


NO. 273.  DECIDED JANUARY 28, 1952 - 98 F. SUPP. 529, JUDGMENT VACATED
AND CASE REMANDED. 


THE DISTRICT COURT IN THIS CASE DECIDED THAT CONSTITUTIONAL AND
STATUTORY PROVISIONS OF SOUTH CAROLINA REQUIRING SEPARATE SCHOOLS FOR
THE WHITE AND COLORED RACES DID NOT OF THEMSELVES VIOLATE THE
FOURTEENTH AMENDMENT, BUT ORDERED THE SCHOOL OFFICIALS TO PROCEED AT
ONCE TO FURNISH EQUAL EDUCATIONAL FACILITIES AND TO REPORT TO THE COURT
WITHIN SIX MONTHS WHAT ACTION HAD BEEN TAKEN.  AFTER AN APPEAL TO THIS
COURT HAD BEEN DOCKETED, THE REQUIRED REPORT WAS FILED IN THE DISTRICT
COURT.  HELD:  IN ORDER THAT THIS COURT MAY HAVE THE BENEFIT OF THE
VIEWS OF THE DISTRICT COURT UPON THE ADDITIONAL FACTS BROUGHT OUT IN
THE REPORT, AND THAT THE DISTRICT COURT MAY HAVE THE OPPORTUNITY TO
TAKE WHATEVER ACTION IT MAY DEEM APPROPRIATE IN LIGHT OF THAT REPORT,
THE JUDGMENT IS VACATED AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS.  PP. 350-352. 

BRIGGS ET AL. V. ELLIOTT ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF SOUTH CAROLINA. 

PER CURIAM. 

APPELLANT NEGRO SCHOOL CHILDREN BROUGHT THIS ACTION IN THE FEDERAL
DISTRICT COURT TO ENJOIN APPELLEE SCHOOL OFFICIALS FROM MAKING ANY
DISTINCTIONS BASED UPON RACE OR COLOR IN PROVIDING EDUCATIONAL
FACILITIES FOR SCHOOL DISTRICT NO. 22, CLARENDON COUNTY, SOUTH
CAROLINA.  AS THE BASIS FOR THEIR COMPLAINT, APPELLANTS ALLEGED THAT
EQUAL FACILITIES ARE NOT PROVIDED FOR NEGRO PUPILS AND THAT THOSE
CONSTITUTIONAL AND STATUTORY PROVISIONS OF SOUTH CAROLINA REQUIRING
SEPARATE SCHOOLS "FOR CHILDREN OF THE WHITE AND COLORED RACES"* ARE
INVALID UNDER THE FOURTEENTH AMENDMENT.  AT THE TRIAL BEFORE A COURT OF
THREE JUDGES, APPELLEES CONCEDED THAT THE SCHOOL FACILITIES PROVIDED
FOR NEGRO STUDENTS "ARE NOT SUBSTANTIALLY EQUAL TO THOSE AFFORDED IN
THE DISTRICT FOR WHITE PUPILS." 

*S.C. CONST., ART. XI, SEC. 7; S.C. CODE, 1942, SEC. 5377. 

THE DISTRICT COURT HELD, ONE JUDGE DISSENTING, THAT THE CHALLENGED
CONSTITUTIONAL AND STATUTORY PROVISIONS WERE NOT OF THEMSELVES
VIOLATIVE OF THE FOURTEENTH AMENDMENT.  THE COURT BELOW ALSO FOUND THAT
THE EDUCATIONAL FACILITIES AFFORDED BY APPELLEES FOR NEGRO PUPILS ARE
NOT EQUAL TO THOSE PROVIDED FOR WHITE CHILDREN.  THE DISTRICT COURT DID
NOT ISSUE AN INJUNCTION ABOLISHING RACIAL DISTINCTIONS AS PRAYED BY
APPELLANTS, BUT DID ORDER APPELLEES TO PROCEED AT ONCE TO FURNISH
EDUCATIONAL FACILITIES FOR NEGROES EQUAL TO THOSE FURNISHED WHITE
PUPILS.  IN ITS DECREE, ENTERED JUNE 21, 1951, THE DISTRICT COURT
ORDERED THAT APPELLEES REPORT TO THAT COURT WITHIN SIX MONTHS AS TO
ACTION TAKEN BY THEM TO CARRY OUT THE COURT'S ORDER.  98 F. SUPP. 529. 

DISSATISFIED WITH THE RELIEF GRANTED BY THE DISTRICT COURT,
APPELLANTS BROUGHT A TIMELY APPEAL DIRECTLY TO THIS COURT UNDER 28
U.S.C. (SUPP. IV) SEC. 1253.  AFTER THE APPEAL WAS DOCKETED BUT BEFORE
ITS CONSIDERATION BY THIS COURT, APPELLEES FILED IN THE COURT BELOW
THEIR REPORT AS ORDERED. 

THE DISTRICT COURT HAS NOT GIVEN ITS VIEWS ON THIS REPORT, HAVING
ENTERED AN ORDER STATING THAT IT WILL WITHHOLD FURTHER ACTION THEREON
WHILE THE CAUSE IS PENDING IN THIS COURT ON APPEAL.  PRIOR TO OUR
CONSIDERATION OF THE QUESTIONS RAISED ON THIS APPEAL, WE SHOULD HAVE
THE BENEFIT OF THE VIEWS OF THE DISTRICT COURT UPON THE ADDITIONAL
FACTS BROUGHT TO THE ATTENTION OF THAT COURT IN THE REPORT WHICH IT
ORDERED.  THE DISTRICT COURT SHOULD ALSO BE AFFORDED THE OPPORTUNITY TO
TAKE WHATEVER ACTION IT MAY DEEM APPROPRIATE IN LIGHT OF THAT REPORT. 
IN ORDER THAT THIS MAY BE DONE, WE VACATE THE JUDGMENT OF THE DISTRICT
COURT AND REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS. 
ANOTHER JUDGMENT, ENTERED AT THE CONCLUSION OF THOSE PROCEEDINGS, MAY
PROVIDE THE BASIS FOR ANY FURTHER APPEALS TO THIS COURT.  IT IS SO
ORDERED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT TO VACATION OF THE
JUDGMENT OF THE DISTRICT COURT ON THE GROUNDS STATED.  THEY BELIEVE
THAT THE ADDITIONAL FACTS CONTAINED IN THE REPORT TO THE DISTRICT COURT
ARE WHOLLY IRRELEVANT TO THE CONSTITUTIONAL QUESTIONS PRESENTED BY THE
APPEAL TO THIS COURT, AND THAT WE SHOULD NOTE JURISDICTION AND SET THE
CASE DOWN FOR ARGUMENT. 
..END :
















HALCYON LINES V. HAENN SHIP CEILING & REFITTING CORP. 342 U.S. 282. 


NO. 62.  ARGUED NOVEMBER 27, 1951 - DECIDED JANUARY 14, 1952 - 187 F.2D
403, REVERSED AND REMANDED. 


AN EMPLOYEE OF A SHORESIDE CONTRACTOR ENGAGED BY A SHIPOWNER TO REPAIR
A SHIP MOORED IN NAVIGABLE WATERS WAS INJURED ABOARD THE SHIP WHILE
ENGAGED IN MAKING REPAIRS.  HIS INJURIES DID NOT RESULT FROM A
COLLISION.  ALLEGING THAT THEY WERE CAUSED BY THE SHIPOWNER'S
NEGLIGENCE AND THE UNSEAWORTHINESS OF THE SHIP, HE SUED THE SHIPOWNER
FOR DAMAGES.  CLAIMING THAT THE CONTRACTOR'S NEGLIGENCE HAD CONTRIBUTED
TO THE INJURIES, THE SHIPOWNER BROUGHT IN THE CONTRACTOR AS A THIRD
PARTY DEFENDANT AND URGED THAT IT BE REQUIRED TO MAKE CONTRIBUTION. 
HELD:  THE CONTRIBUTION PROCEEDINGS AGAINST THE CONTRACTOR SHOULD BE
DISMISSED.  PP. 283-287. 

(A)  THERE IS NO ESTABLISHED RIGHT TO CONTRIBUTION BETWEEN JOINT
TORTFEASORS IN SUCH NON-COLLISION, MARITIME, INJURY CASES.  P. 284. 

(B)  SINCE CONGRESS HAS ENACTED MUCH LEGISLATION IN THE FIELD OF
MARITIME INJURIES AND HAS NOT APPROVED SUCH A RULE OF CONTRIBUTION
BETWEEN JOINT TORTFEASORS, IT WOULD BE INAPPROPRIATE FOR THIS COURT TO
DO SO.  PP. 285-287. 

HALCYON LINES ET AL. V. HAENN SHIP CEILING & REFITTING CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT.* 

*TOGETHER WITH NO. 197, HAENN SHIP CEILING & REFITTING CORP. V.
HALCYON LINES ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

THE CASE IS STATED IN THE OPINION.  REVERSED AND REMANDED, P. 287. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

HALCYON LINES (FN1) HIRED THE HAENN SHIP CEILING AND REFITTING
CORPORATION (FN2) TO MAKE REPAIRS ON HALCYON'S SHIP WHICH WAS MOORED IN
NAVIGABLE WATERS.  SALVADOR BACCILE, AN EMPLOYEE OF HAENN, WAS INJURED
ABOARD SHIP WHILE ENGAGED IN MAKING THESE REPAIRS.  ALLEGING THAT HIS
INJURIES WERE CAUSED BY HALCYON'S NEGLIGENCE AND THE UNSEAWORTHINESS OF
ITS VESSEL, HE BROUGHT THIS ACTION FOR DAMAGES AGAINST HALCYON IN THE
UNITED STATES DISTRICT COURT.  ON THE GROUND THAT HAENN'S NEGLIGENCE
HAD CONTRIBUTED TO THE INJURIES, HALCYON BROUGHT HAENN IN AS A THIRD
PARTY DEFENDANT.  BY AGREEMENT OF ALL PARTIES, A $65,000 JUDGMENT WAS
RENDERED FOR BACCILE AND PAID BY HALCYON.  DESPITE HAENN'S PROTEST, THE
DISTRICT JUDGE ALLOWED THE INTRODUCTION OF EVIDENCE TENDING TO SHOW THE
RELATIVE DEGREE OF FAULT OF THE TWO PARTIES.  ON THIS EVIDENCE THE JURY
RETURNED A SPECIAL VERDICT FINDING HAENN 75% AND HALCYON 25%
RESPONSIBLE.  THE DISTRICT JUDGE REFUSED TO FOLLOW THIS JURY
DETERMINATION AND ENTERED JUDGMENT IN ACCORDANCE WITH HIS CONCLUSION
THAT THERE WAS A GENERAL RULE GOVERNING MARITIME TORTS SUCH AS THIS
UNDER WHICH EACH JOINT TORTFEASOR MUST PAY HALF THE DAMAGES.  80 F.
SUPP. 765.  THE COURT OF APPEALS AGREED THAT A RIGHT OF CONTRIBUTION
EXISTED IN THIS CASE BUT HELD THAT IT COULD NOT EXCEED THE AMOUNT HAENN
WOULD HAVE BEEN COMPELLED TO PAY BACCILE HAD HE ELECTED TO CLAIM
COMPENSATION UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT, 44 STAT. 1424, 33 U.S.C. SEC. 901 ET SEQ. 187 F.2D 403.  WE
GRANTED CERTIORARI BECAUSE OF THE CONFLICTING VIEWS TAKEN BY THE
CIRCUITS AS TO THE EXISTENCE OF AND THE EXTENT TO WHICH CONTRIBUTION
CAN BE OBTAINED IN CASES SUCH AS THIS.  (FN3)  342 U.S. 809. 

WHERE TWO VESSELS COLLIDE DUE TO THE FAULT OF BOTH, IT IS ESTABLISHED
ADMIRALTY DOCTRINE THAT THE MUTUAL WRONGDOERS SHALL SHARE EQUALLY THE
DAMAGES SUSTAINED BY EACH, AS WELL AS PERSONAL INJURY AND PROPERTY
DAMAGE INFLICTED ON INNOCENT THIRD PARTIES.  THIS MARITIME RULE IS OF
ANCIENT ORIGIN AND HAS BEEN APPLIED IN MANY CASES, (FN4) BUT THIS COURT
HAS NEVER EXPRESSLY APPLIED IT TO NON-COLLISION CASES.  (FN5)  HALCYON
NOW URGES US TO EXTEND IT TO NON-COLLISION CASES AND TO ALLOW A
CONTRIBUTION HERE BASED UPON THE RELATIVE DEGREE OF FAULT OF HALCYON
AND HAENN AS FOUND BY THE JURY.  HAENN URGES US TO HOLD THAT THERE IS
NO RIGHT OF CONTRIBUTION, OR IN THE ALTERNATIVE, THAT THE RIGHT BE
BASED UPON AN EQUAL DIVISION OF ALL DAMAGES.  BOTH PARTIES CLAIM THAT
THE DECISION BELOW LIMITING AN EMPLOYER'S LIABILITY FOR CONTRIBUTION TO
THOSE UNCERTAIN AMOUNTS RECOVERABLE UNDER THE HARBOR WORKERS' ACT IS
IMPRACTICAL AND UNDESIRABLE. 

IN THE ABSENCE OF LEGISLATION, COURTS EXERCISING A COMMON-LAW
JURISDICTION HAVE GENERALLY HELD THAT THEY CANNOT ON THEIR OWN
INITIATIVE CREATE AN ENFORCEABLE RIGHT OF CONTRIBUTION AS BETWEEN JOINT
TORTFEASORS.  (FN6)  THIS JUDICIAL ATTITUDE HAS PROVOKED PROTEST ON THE
GROUND THAT IT IS INEQUITABLE TO COMPEL ONE TORTFEASOR TO BEAR THE
ENTIRE BURDEN OF A LOSS WHICH HAS BEEN CAUSED IN PART BY THE NEGLIGENCE
OF SOMEONE ELSE.  (FN7)  OTHERS HAVE DEFENDED THE POLICY OF COMMON-LAW
COURTS IN REFUSING TO FASHION RULES OF CONTRIBUTION.  (FN8)  TO SOME
EXTENT COURTS EXERCISING JURISDICTION IN MARITIME AFFAIRS HAVE FELT
FREER THAN COMMON-LAW COURTS IN FASHIONING RULES, (FN9) AND WE WOULD
FEEL FREE TO DO SO HERE IF WHOLLY CONVINCED THAT IT WOULD BEST SERVE
THE ENDS OF JUSTICE. 

WE HAVE CONCLUDED THAT IT WOULD BE UNWISE TO ATTEMPT TO FASHION NEW
JUDICIAL RULES OF CONTRIBUTION AND THAT THE SOLUTION OF THIS PROBLEM
SHOULD AWAIT CONGRESSIONAL ACTION.  CONGRESS HAS ALREADY ENACTED MUCH
LEGISLATION IN THE AREA OF MARITIME PERSONAL INJURIES.  (FN10)  FOR
EXAMPLE, UNDER THE HARBOR WORKERS' ACT CONGRESS HAS MADE FAULT
UNIMPORTANT IN DETERMINING THE EMPLOYER'S RESPONSIBILITY TO HIS
EMPLOYEE; CONGRESS HAS MADE FURTHER INROADS ON TRADITIONAL COURT LAW BY
ABOLITION OF THE DEFENSES OF CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF
RISK AND BY THE CREATION OF A STATUTORY SCHEDULE OF COMPENSATION.  THE
HARBOR WORKERS' ACT IN TURN MUST BE INTEGRATED WITH OTHER ACTS SUCH AS
THE JONES ACT (41 STAT. 1007, 46 U.S.C. SEC. 688), THE PUBLIC VESSELS
ACT (43 STAT. 1112, 46 U.S.C.  SECS. 781-790), THE LIMITED LIABILITY
ACT (R.S. SEC. 4281, AS AMENDED, 46 U.S.C. SEC.  181 ET SEQ.) AND THE
HARTER ACT (27 STAT. 445, 46 U.S.C. SECS. 190-195).  MANY GROUPS OF
PERSONS WITH VARYING INTERESTS ARE VITALLY CONCERNED WITH THE PROPER
FUNCTIONING AND ADMINISTRATION OF ALL THESE ACTS AS AN INTEGRATED
WHOLE.  WE THINK THAT LEGISLATIVE CONSIDERATION AND ACTION CAN BEST
BRING ABOUT A FAIR ACCOMMODATION OF THE DIVERSE BUT RELATED INTERESTS
OF THESE GROUPS.  THE LEGISLATIVE PROCESS IS PECULIARLY ADAPTED TO
DETERMINE WHICH OF THE MANY POSSIBLE SOLUTIONS TO THIS PROBLEM WOULD BE
MOST BENEFICIAL IN THE LONG RUN.  A LEGISLATIVE INQUIRY MIGHT SHOW THAT
NEITHER CARRIERS, SHIPPERS, EMPLOYEES, NOR CASUALTY INSURANCE COMPANIES
DESIRE SUCH A CHANGE TO BE MADE.  THE RECORD BEFORE US IS SILENT AS TO
THE WISHES OF EMPLOYEES, CARRIERS, AND SHIPPERS; IT ONLY SHOWS THAT THE
HALCYON LINE IS IN FAVOR OF SUCH A CHANGE IN ORDER TO RELIEVE ITSELF OF
A PART OF ITS BURDEN IN THIS PARTICULAR LAWSUIT.  APPARENTLY INSURANCE
COMPANIES ARE OPPOSED TO SUCH A CHANGE.  (FN11)  SHOULD A LEGISLATIVE
INQUIRY CONVINCE CONGRESS THAT A RIGHT TO CONTRIBUTION AMONG JOINT
TORTFEASORS IS DESIRABLE, THERE WOULD STILL BE MUCH DOUBT AS TO WHETHER
APPLICATION OF THE RULE OR THE AMOUNT OF CONTRIBUTION SHOULD BE LIMITED
BY THE HARBOR WORKERS' ACT, (FN12) OR SHOULD BE BASED ON AN EQUAL
DIVISION OF DAMAGES, OR SHOULD BE RELATIVELY APPORTIONED IN ACCORDANCE
WITH THE DEGREE OF FAULT OF THE PARTIES. 

IN VIEW OF THE FOREGOING, AND BECAUSE CONGRESS WHILE ACTING IN THE
FIELD HAS STOPPED SHORT OF APPROVING THE RULE OF CONTRIBUTION HERE
URGED, WE THINK IT WOULD BE INAPPROPRIATE FOR US TO DO SO. THE
JUDGMENTS OF THE COURT OF APPEALS ARE REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE
CONTRIBUTION PROCEEDINGS AGAINST HAENN.  IT IS SO ORDERED. 

FN1  HALCYON LINES REFERS TO HALCYON LINES AND VINKE & CO., TWO
CORPORATE JOINT OWNERS AND OPERATORS OF THE SHIP HERE INVOLVED. 
HALCYON IS PETITIONER IN NO. 62 AND THE RESPONDENT IN NO. 197. 

FN2  HAENN IS THE PETITIONER IN NO. 197 AND THE RESPONDENT IN NO.
62. 

FN3  AMERICAN MUTUAL INSURANCE CO. V. MATTHEWS, 182 F.2D 322; UNITED
STATES V. ROTHSCHILD INTERNATIONAL STEVEDORING CO., 183 F.2D 181.  SEE
ALSO SLATTERY V. MARRA BROS., INC., 186 F.2D 134; SPAULDING V. PARRY
NAVIGATION CO., 187 F.2D 257; HITAFFER V. ARGONNE CO., 87 U.S. APP.
D.C. 57, 183 F.2D 811. 

FN4  THE NORTH STAR, 106 U.S. 17, 21, TRACES THE DOCTRINE BACK TO THE
RULES OF OLERON AND THE LAWS OF WISBUY.  SEE ALSO, THE WASHINGTON, 9
WALL.  513; THE ALABAMA, 92 U.S. 695; THE ATLAS, 93 U.S. 302; THE
CHATTAHOOCHEE, 173 U.S. 540, 551-555. 

FN5  AMERICAN STEVEDORES, INC. V. PORELLO, 330 U.S. 446, RECOGNIZED
THAT SOME LOWER FEDERAL COURTS HAD APPLIED THE EQUAL-DIVISION RULE OF
CONTRIBUTION IN NON-COLLISION CASES.  THE OPINION IN THAT CASE IMPLIED
THAT ON REMAND AND UNDER CERTAIN CONTINGENCIES THE DISTRICT COURT WOULD
"BE FREE TO ADJUDGE THE RESPONSIBILITY OF THE PARTIES "IN ACCORDANCE
WITH THE CONTRIBUTION RULE ANNOUNCED BY THE LOWER FEDERAL COURTS.  THAT
STATEMENT WAS ONLY INCIDENTAL AS COMPARED TO THE IMPORTANT QUESTIONS
THERE DECIDED AND CANNOT BE TAKEN AS FORECLOSING A FULL CONSIDERATION
AND DETERMINATION OF THE ISSUE WHICH IS NOW DIRECTLY PRESENTED AND
CRUCIAL TO OUR DECISION. 

FN6  UNION STOCK YARDS CO. V. CHICAGO, B.&Q.R. CO., 196 U.S. 217,
224.  AND SEE CASES COLLECTED IN 3 A.L.R. DIGEST, PP. 864-866, AND IN
PROSSER ON TORTS (1941), P. 1113. 

FN7  SEE E.G., GREGORY, CONTRIBUTION AMONG JOINT TORTFEASORS:  A
DEFENSE, 54 HARV. L. REV. 1170. 

FN8  GEORGE'S RADIO, INC. V. CAPITAL TRANSIT CO., 75 U.S. APP. D.C.
187, 191, 126 F.2D 219, 223, DISSENTING OPINION.  SEE ALSO JAMES,
CONTRIBUTION AMONG JOINT TORTFEASORS:  A PRAGMATIC CRITICISM, 54 HARV.
L. REV. 1156. 

FN9  SWIFT & CO. V. COMPANIA COLOMBIANA DEL CARIBE, 339 U.S. 684,
690, 691.  COMPARE THE LOTTAWANNA, 21 WALL.  558. 

FN10  SEE E.G., THE JONES ACT (41 STAT. 1007, 46 U.S.C. SEC. 688),
THE PUBLIC VESSELS ACT (43 STAT. 1112, 46 U.S.C. SECS. 781-790), AND
THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT (44 STAT. 1424,
33 U.S.C. SEC. 901 ET SEQ.). 

FN11  GREGORY, SUPRA, N. 7, P. 1177.  JAMES, SUPRA, N. 8, PP. 1179
1180. 

FN12  SECTION 5 OF THE ACT PROVIDES THAT "THE LIABILITY OF AN
EMPLOYER PRESCRIBED IN SECTION 4 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,  ... ."  HAENN
ARGUES THAT THIS SECTION PROVIDES THE EMPLOYER'S EXCLUSIVE LIABILITY
THEREBY PREVENTING A THIRD PARTY FROM HAVING ANY RIGHT OF CONTRIBUTION
AGAINST AN EMPLOYER UNDER THE ACT IN CASES WHERE THE JOINT NEGLIGENCE
OF A THIRD PARTY AND THE EMPLOYER INJURE AN EMPLOYEE COVERED BY THE
ACT.  WE FIND IT UNNECESSARY TO DECIDE THIS QUESTION WHICH IS TREATED
BY THE CASES CITED IN N. 3, SUPRA. 

MR. JUSTICE REED AND MR. JUSTICE BURTON WOULD REVERSE WITH DIRECTIONS
TO THE DISTRICT COURT TO ALLOW CONTRIBUTIONS EQUAL TO FIFTY PERCENT OF
THE JUDGMENT RECOVERED BY BACCILE AGAINST HALCYON. 
..END :






UNITED STATES V. SHANNON 342 U.S. 288 


NO. 47.  ARGUED NOVEMBER 27, 1951 - DECIDED JANUARY 14, 1952 - 186 F.2D
430, REVERSED. 


RESPONDENTS PURCHASED FROM THE OWNERS A TRACT OF LAND ON WHICH STOOD
BUILDINGS THAT HAD BEEN DAMAGED BY MEMBERS OF THE ARMED FORCES.  BY THE
SALE AGREEMENT THE VENDORS ASSIGNED ANY CLAIM WHICH THEY HAD AGAINST
THE UNITED STATES FOR DAMAGE TO THE PROPERTY.  RESPONDENTS BROUGHT AN
ACTION UNDER THE TORT CLAIMS ACT TO RECOVER ON THE DAMAGE CLAIM, AND
JOINED THEIR ASSIGNORS AS WELL AS THE UNITED STATES AS PARTIES
DEFENDANT.  THE DISTRICT COURT ENTERED JUDGMENT FOR RESPONDENTS AGAINST
THE UNITED STATES ALONE, ON THE GROUND THAT ALL POSSIBLE CLAIMANTS WERE
BEFORE THE COURT AND THE ANTI-ASSIGNMENT ACT WAS THEREFORE
INAPPLICABLE.  THE COURT OF APPEALS AFFIRMED.  HELD:  THE ASSIGNMENT OF
THE CLAIM AGAINST THE UNITED STATES WAS VOID UNDER THE ANTI-ASSIGNMENT
ACT, AND THE JUDGMENT IS REVERSED.  PP. 289-294. 

1.  THE JUDGMENT BELOW IS BASED ON A VOLUNTARY ASSIGNMENT.  THE
CONSIDERATIONS JUSTIFYING EXCEPTIONS TO THE ANTI-ASSIGNMENT ACT FOR
CERTAIN TYPES OF VOLUNTARY ASSIGNMENTS ARE NOT PRESENT HERE, SO THE
ASSIGNMENT FALLS WITHIN THE PROHIBITION OF THAT ACT.  PP. 292-293. 

2.  THE ANTI-ASSIGNMENT ACT IS NOT RENDERED INAPPLICABLE TO THIS CASE
BY THE FACT THAT ALL POSSIBLE CLAIMANTS WERE BEFORE THE COURT; NOR BY
THE FACT THAT THE ASSIGNMENT WAS EXECUTED UNDER A "MUTUAL MISTAKE OF
LAW"; NOR BY THE FACT THAT "HARDSHIP" MIGHT OTHERWISE RESULT.  PP. 293
294. 

3.  THERE WAS IN THIS CASE NO "UNCONSCIONABLE" CONDUCT ON THE PART OF
THE GOVERNMENT AGENTS, WHO HAD NO PART IN THE MAKING OF THE
ASSIGNMENT.  P. 294. 

UNITED STATES V. SHANNON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

IN AN ACTION BROUGHT UNDER THE TORT CLAIMS ACT AGAINST THE UNITED
STATES AND OTHERS, THE DISTRICT COURT ENTERED JUDGMENT FOR THE
RESPONDENTS AGAINST THE UNITED STATES ALONE.  THE COURT OF APPEALS
AFFIRMED.  186 F.2D 430.  THIS COURT GRANTED CERTIORARI.  342 U.S.
808.  REVERSED, P. 294. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE BROUGHT HERE ON WRIT OF CERTIORARI (FN1) TESTS THE VALIDITY
UNDER THE ANTI-ASSIGNMENT ACT, R.S. SEC. 3477, (FN2) OF AN ASSIGNMENT
OF A CLAIM AGAINST THE UNITED STATES FOR PROPERTY DAMAGE.  IN AN EFFORT
TO ESCAPE THE PROHIBITION OF THAT ACT, RESPONDENTS JOINED THEIR
ASSIGNORS, MRS. KATHLEEN BOSHAMER ET AL., (FN3) AS WELL AS THE UNITED
STATES AS PARTIES DEFENDANT.  THE DISTRICT COURT, HOLDING THE
ASSIGNMENT TO BE "OF FULL FORCE AND EFFECT," ENTERED JUDGMENT FOR
RESPONDENTS AGAINST THE UNITED STATES ALONE.  THE COURT OF APPEALS
AFFIRMED, 186 F.2D 430. 

THE BOSHAMERS OWNED, IN ADDITION TO ADJOINING LAND WHICH THEY LEASED
TO THE UNITED STATES, TWO ONE-ACRE TRACTS OF LAND NOT UNDER LEASE ON
WHICH WERE LOCATED TWO HOUSES AND A BARN.  DURING JANUARY AND FEBRUARY,
1945, THESE BUILDINGS WERE DAMAGED BY SOLDIERS OF THE UNITED STATES. 
ON APRIL 30, 1946, THE BOSHAMERS AGREED TO SELL THE ENTIRE TRACT -
INCLUDING BOTH THE LEASED AND UNLEASED PORTIONS - TO RESPONDENTS SAMUEL
AND W.L.  SHANNON, AND IN THAT INSTRUMENT AGREED THAT "AFTER COMPLETION
OF THE SALE AND AFTER DELIVERY OF THE DEED, THE SELLERS HEREBY RELEASE
TO THE PURCHASERS ANY CLAIM, REPARATION, OR OTHER CAUSE OF ACTION
AGAINST THE UNITED STATES GOVERNMENT FOR ANY DAMAGE CAUSED THE PROPERTY
...  ."  (FN4) 

RESPONDENTS BROUGHT THE PRESENT ACTION UNDER THE FEDERAL TORT CLAIMS
ACT, 28 U.S.C.  (SUPP. IV) SEC. 1346(B).  (FN5)  IN THEIR COMPLAINT
RESPONDENTS ALLEGED THAT THE BOSHAMERS "HAVE A CAUSE OF ACTION AGAINST
THE UNITED STATES OF AMERICA AND SINCE THEY HAVE ASSIGNED THIS CAUSE OF
ACTION TO RESPONDENTS FOR A VALUABLE CONSIDERATION AND SINCE THEY MUST
PROSECUTE THIS ACTION IN THEIR OWN NAMES THEY ARE EQUITABLY LIABLE TO
RESPONDENTS FOR THE AMOUNT OF ANY JUDGMENT THAT THEY MAY RECOVER
AGAINST THE UNITED STATES OF AMERICA," AND FURTHER ALLEGED THAT THE
BOSHAMERS HAD "REFUSED TO AID RESPONDENTS IN RECOVERING THE DAMAGES TO
WHICH RESPONDENTS ARE ENTITLED."  (FN6)  THE BOSHAMERS FILED AN ANSWER
STATING THAT THEY HAD MADE THE ASSIGNMENT BUT "ARE WITHOUT KNOWLEDGE OR
INFORMATION AS TO ANY DAMAGES DONE  ...  AND  ...  HAVE BEEN UNWILLING
TO INSTITUTE OR PROSECUTE A DAMAGE SUIT AGAINST THEIR GOVERNMENT FOR
SOMETHING THEY HAVE NO KNOWLEDGE OF."  (FN7)  AT THE TRIAL RESPONDENTS
ADMITTED THAT ALL OF THE DAMAGE HAD OCCURRED BEFORE THE CLAIM HAD BEEN
ASSIGNED TO THEM, AND THAT THEY HAD KNOWN OF THE DAMAGE AT THE TIME OF
THE ASSIGNMENT.  THE DISTRICT COURT, HOWEVER, HELD THE ANTI-ASSIGNMENT
ACT INAPPLICABLE ON THE GROUND THAT THE JOINDER OF THE ASSIGNORS
PREVENTED ANY POSSIBLE PREJUDICE TO THE GOVERNMENT, SINCE "THE RIGHTS
OF ALL OF THE POSSIBLE CLAIMANTS AND OF THE UNITED STATES WILL BE
FINALLY ADJUDICATED ON THIS ONE SUIT."  (FN8) 

THE COURT OF APPEALS AFFIRMED, BELIEVING THAT THE ASSIGNMENT HAD
RESULTED FROM A "MUTUAL MISTAKE AS TO THE LAW," AND HOLDING THAT: 

"RELIEF IS GRANTED, NOT MERELY BECAUSE RESPONDENTS ARE ASSIGNEES, NOR
EVEN BECAUSE THE VENDORS HAVE BEEN MADE PARTIES TO THE SUIT, BUT
BECAUSE OF THE MISTAKE THAT LED TO THE MAKING OF THE ASSIGNMENT, WHICH
WAS A PART OF THE CONSIDERATION FOR THE PURCHASE PRICE PAID BY
RESPONDENTS FOR THE LAND CONVEYED TO THEM.  THE RELIEF IS GIVEN TO THE
ASSIGNEES, NOT AS A MATTER OF LAW, BUT AS A MATTER OF EQUITY BECAUSE OF
THE MISTAKE INVOLVED AND THE HARDSHIP WHICH WOULD OTHERWISE RESULT." 
186 F.2D 430, 434. 

WE CANNOT AGREE.  IN OUR VIEW THE JUDGMENT IS BASED ENTIRELY ON THE
ASSIGNMENT, WHICH FALLS CLEARLY WITHIN THE BAN OF THE ANTI-ASSIGNMENT
ACT.  WE HAVE RECENTLY HAD OCCASION TO REVIEW THE ACT'S PURPOSES.  IN
UNITED STATES V. AETNA SURETY CO., 338 U.S. 366, 373 (1949), WE STATED
THAT "ITS PRIMARY PURPOSE WAS UNDOUBTEDLY TO PREVENT PERSONS OF
INFLUENCE FROM BUYING UP CLAIMS AGAINST THE UNITED STATES, WHICH MIGHT
THEN BE IMPROPERLY URGED UPON OFFICERS OF THE GOVERNMENT," AND THAT A
SECOND PURPOSE WAS "TO PREVENT POSSIBLE MULTIPLE PAYMENT OF CLAIMS, TO
MAKE UNNECESSARY THE INVESTIGATION OF ALLEGED ASSIGNMENTS, AND TO
ENABLE THE GOVERNMENT TO DEAL ONLY WITH THE ORIGINAL CLAIMANT."  OTHER
COURTS HAVE FOUND YET ANOTHER PURPOSE OF THE STATUTE, NAMELY, TO SAVE
TO THE UNITED STATES "DEFENSES WHICH IT HAS TO CLAIMS BY AN ASSIGNOR BY
WAY OF SET-OFF, COUNTER CLAIM, ETC., WHICH MIGHT NOT BE APPLICABLE TO
AN ASSIGNEE."  (FN9) 

IN THE AETNA CASE, SUPRA, THIS COURT REAFFIRMED THE PRINCIPLE THAT
THE STATUTE DOES NOT APPLY TO ASSIGNMENTS BY OPERATION OF LAW, AS
DISTINGUISHED FROM VOLUNTARY ASSIGNMENTS.  THERE CAN BE NO DOUBT THAT
IN THE PRESENT CASE THE ASSIGNMENT WAS VOLUNTARY.  THE BOSHAMERS WERE
FREE TO SELL THEIR LAND AS WELL AS THEIR DAMAGE CLAIM TO WHOMEVER THEY
PLEASED, OR, HAD THEY CHOSEN, THEY COULD HAVE SOLD THE LAND AND THE
CLAIM SEPARATELY.  THE VOLUNTARY NATURE OF THE ASSIGNMENT IS REFLECTED
IN THE FACT THAT ONE OF THE RESPONDENTS TESTIFIED ON CROSS-EXAMINATION
THAT HE UNDERSTOOD THAT HE WAS "BUYING A CLAIM AGAINST THE
GOVERNMENT."  (FN10) 

THAT AN ASSIGNMENT IS VOLUNTARY IS NOT AN END TO THE MATTER, HOWEVER,
IN THE NINETY-NINE-YEAR HISTORY OF THE ANTI-ASSIGNMENT ACT, THIS COURT
HAS RECOGNIZED AS EXCEPTIONS TO THE BROAD SWEEP OF THE STATUTE TWO
TYPES OF VOLUNTARY ASSIGNMENTS (ASIDE FROM VOLUNTARY ASSIGNMENTS MADE
AFTER A CLAIM HAS BEEN ALLOWED):  TRANSFERS BY WILL, ERWIN V. UNITED
STATES, 97 U.S. 392, 397 (1878), AND GENERAL ASSIGNMENTS FOR THE
BENEFIT OF CREDITORS, GOODMAN V. NIBLACK, 102 U.S. 556, 560-561
(1881).  THE FIRST OF THESE EXCEPTIONS IS JUSTIFIED BY ANALOGY TO
TRANSFERS BY INTESTACY, WHICH ARE EXEMPT FROM THE STATUTE AS BEING
TRANSFERS BY OPERATION OF LAW.  IT WOULD BE UNWISE TO MAKE A
DISTINCTION FOR PURPOSES OF THE ACT BETWEEN TRANSFERS WHICH SERVE SO
MUCH THE SAME PURPOSES AS TRANSFERS BY WILL AND BY INTESTACY.  IN
SIMILAR FASHION, THE EXCEPTION FOR VOLUNTARY ASSIGNMENTS FOR THE
BENEFIT OF CREDITORS HAS BEEN JUSTIFIED BY ANALOGY TO ASSIGNMENTS IN
BANKRUPTCY.  SEE GOODMAN V. NIBLACK, SUPRA.  WE FIND NO SUCH COMPELLING
ANALOGIES IN THE CASE AT BAR.  ON THE CONTRARY, THIS CASE PRESENTS A
SITUATION PRODUCTIVE OF THE VERY EVILS WHICH CONGRESS INTENDED TO
PREVENT.  FOR EXAMPLE, THE ASSIGNORS KNEW OF NO DAMAGE AND REFUSED TO
BRING SUIT, YET BY THEIR ASSIGNMENT THE GOVERNMENT IS FORCED TO DEFEND
THIS SUIT THROUGH THE COURTS AND DEAL WITH PERSONS WHO WERE STRANGERS
TO THE DAMAGE AND ARE SEEKING TO ENFORCE A CLAIM WHICH THEIR ASSIGNORS
HAVE FORSWORN.  ONE OF CONGRESS' BASIC PURPOSES IN PASSING THE ACT WAS
"THAT THE GOVERNMENT MIGHT NOT BE HARASSED BY MULTIPLYING THE NUMBER OF
PERSONS WITH WHOM IT HAD TO DEAL."  HOBBS V. MCLEAN, 117 U.S. 567, 576
(1886).  SEE ALSO UNITED STATES V. AETNA SURETY CO., SUPRA. 

NOR ARE WE PERSUADED BY THE SPECIAL CONSIDERATIONS WHICH THE COURT OF
APPEALS THOUGHT WERE CONTROLLING HERE.  TO HOLD THE ANTI-ASSIGNMENT ACT
INAPPLICABLE BECAUSE AN ASSIGNMENT HAS BEEN EXECUTED UNDER A "MUTUAL
MISTAKE OF LAW" WOULD REQUIRE AN INQUIRY INTO THE STATE OF MIND OF ALL
PARTIES TO A CHALLENGED ASSIGNMENT, AND WOULD REWARD THOSE WHO ARE
IGNORANT OF A STATUTE WHICH HAS BEEN ON THE BOOKS FOR NEARLY A
CENTURY.  THE ALL-INCLUSIVE LANGUAGE OF THE ACT PERMITS NO SUCH EASY
ESCAPE FROM ITS PROHIBITION.  IN LIKE MANNER, TO HOLD THE ACT
INAPPLICABLE BECAUSE ALL POSSIBLE CLAIMANTS ARE BEFORE THE COURT WOULD
BE TO DRAW A DISTINCTION ON THE BASIS OF A PURELY FORTUITOUS FACTOR -
WHETHER AN ASSIGNEE, IN HIS SUIT AGAINST THE GOVERNMENT, CAN GET
PERSONAL SERVICE ON HIS ASSIGNOR.  EVEN MORE IMPORTANT, THIS THEORY
THAT AN ASSIGNEE CAN AVOID THE ACT BY JOINING HIS ASSIGNOR AS A PARTY
DEFENDANT OR AN UNWILLING PARTY PLAINTIFF, WOULD NOT ONLY SUBVERT THE
PURPOSES OF THE ACT BUT FLOOD THE COURTS WITH LITIGATION BY PERMITTING
THEM TO RECOGNIZE ASSIGNED CLAIMS WHICH THE ACCOUNTING OFFICERS OF THE
GOVERNMENT WOULD BE OBLIGATED TO REJECT.  SINCE ONLY A COURT CAN GIVE
THE BINDING ADJUDICATION OF THE RIGHTS OF ALL PARTIES TO THE
TRANSACTION - UNITED STATES, ASSIGNOR, AND ASSIGNEE - WHICH IT IS
CLAIMED PREVENTS ANY POSSIBLE PREJUDICE TO THE GOVERNMENT, THE COURTS
WOULD BE APPLYING A LAXER RULE UNDER THE STATUTE THAN WOULD THE
ACCOUNTING OFFICERS.  SUCH WAS NOT THE INTENTION OF CONGRESS.  SEE
UNITED STATES V. GILLIS, 95 U.S. 407 (1877).  WE DO NOT BELIEVE THE ACT
CAN BE BY-PASSED BY THE USE OF ANY SUCH PROCEDURAL CONTRIVANCE. 

THE COURT OF APPEALS ALSO FELT THAT RESPONDENTS' CLAIM SHOULD BE
UPHELD BECAUSE "HARDSHIP" WOULD OTHERWISE RESULT.  IF IT WERE NECESSARY
ONLY TO BALANCE EQUITIES IN ORDER TO DECIDE WHETHER THE ANTI-ASSIGNMENT
ACT APPLIES - A VIEW WHICH THIS COURT HAS MANY TIMES REPUDIATED -
RESPONDENTS WOULD HAVE LITTLE WEIGHT ON THEIR SIDE OF THE SCALES.  THEY
PAID THE BOSHAMERS $30 PER ACRE FOR THE LAND AND BUILDINGS PLUS THE
CLAIM; YET THEY ADMITTED AT THE TRIAL THAT LAND ADJOINING THE BOSHAMER
FARM WAS WORTH $100 AN ACRE OR MORE, AND THAT THE BOSHAMER FARM WAS ONE
OF THE BEST IN THE COUNTY.  FURTHERMORE, WE FIND HERE NO
"UNCONSCIONABLE" CONDUCT ON THE PART OF THE GOVERNMENT AGENTS.  THEY
HAD NO PART IN THE MAKING OF THE ASSIGNMENT UPON WHICH RESPONDENTS
RELY, AND IN FACT THE FIRST DEALING BETWEEN RESPONDENTS AND THE
GOVERNMENT AGENTS OCCURRED AT LEAST SIX WEEKS AFTER THAT ASSIGNMENT HAD
BEEN EXECUTED. 

THE JUDGMENT IS REVERSED. 

FN1  342 U.S. 808. 

FN2  10 STAT. 170, AS AMENDED, 31 U.S.C. SEC. 203: 

"ALL TRANSFERS AND ASSIGNMENTS MADE OF ANY CLAIM UPON THE UNITED
STATES, OR OF ANY PART OR SHARE THEREOF, OR INTEREST THEREIN, WHETHER
ABSOLUTE OR CONDITIONAL, AND WHATEVER MAY BE THE CONSIDERATION
THEREFOR, AND ALL POWERS OF ATTORNEY, ORDERS, OR OTHER AUTHORITIES FOR
RECEIVING PAYMENT OF ANY SUCH CLAIM, OR OF ANY PART OR SHARE THEREOF,
SHALL BE ABSOLUTELY NULL AND VOID, UNLESS THEY ARE FREELY MADE AND
EXECUTED IN THE PRESENCE OF AT LEAST TWO ATTESTING WITNESSES, AFTER THE
ALLOWANCE OF SUCH A CLAIM, THE ASCERTAINMENT OF THE AMOUNT DUE, AND THE
ISSUING OF A WARRANT FOR THE PAYMENT THEREOF ...  ." 

FN3  HEREAFTER REFERRED TO AS "THE BOSHAMERS." 

FN4  R. 33. 

FN5  ORIGINALLY THERE WERE TWO CASES, ONE UNDER THE TUCKER ACT, 28
U.S.C. (SUPP. IV) SEC. 1346(A)(2), FOR DAMAGES TO PROPERTY UNDER LEASE
TO THE UNITED STATES, AND THE SECOND UNDER THE TORT CLAIMS ACT FOR
DAMAGES TO BUILDINGS ON PROPERTY NOT UNDER LEASE.  THE DISTRICT COURT
AWARDED RESPONDENTS JUDGMENT FOR $2,050 IN THE FIRST ACTION AND $975 IN
THE SECOND, AND BOTH JUDGMENTS ARE AFFIRMED BY THE COURT OF APPEALS. 
THE TORT CLAIMS ACTION ALONE IS INVOLVED HERE. 

FN6  R. 20. 

FN7  R. 23. 

FN8  R. 18. 

FN9  GRACE V. UNITED STATES, 76 F. SUPP. 174, 175 (1948). 

FN10  R. 13. 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON DISSENT. 

MR. JUSTICE FRANKFURTER.* 

*THIS OPINION APPLIES ALSO TO NO. 46, UNITED STATES V. JORDAN, POST,
P. 911. 

I WOULD DISMISS THESE WRITS OF CERTIORARI. 

AFTER THE ARGUMENT OF THESE CASES IT BECAME MANIFEST THAT THEY WERE
LEGAL SPORTS.  EACH PRESENTS A UNIQUE SET OF CIRCUMSTANCES.  NEITHER IS
LIKELY TO RECUR; BOTH ARE INDIVIDUALIZED INSTANCES OUTSIDE THE SCOPE OF
THOSE CONSIDERATIONS OF IMPORTANCE WHICH ALONE, AS A MATTER OF SOUND
JUDICIAL DISCRETION, JUSTIFY DISPOSITION OF A WRIT OF CERTIORARI ON THE
MERITS. 

THE CONTROLLING PURPOSE OF THE RADICAL REFORMS INTRODUCED BY THE
JUDICIARY ACT OF 1925, REINFORCED BY AN EXERCISE OF THE COURT'S RULE
MAKING POWER IN REGARD TO THE RESIDUAL JURISDICTION ON APPEAL (SEE RULE
12 AND 275 U.S. 603-604, 43 HARV. L. REV. 33, 42 ET SEQ.), WAS TO PUT
THE RIGHT TO COME HERE, FOR ALL PRACTICAL PURPOSES, IN THE COURT'S
JUDICIAL DISCRETION.  NEEDLESS TO SAY, THE REASON FOR THIS IS TO ENABLE
THE COURT TO ADJUDICATE WISELY, AND THEREFORE AFTER ADEQUATE
DELIBERATION, THE CONTROVERSIES THAT MAKE THE COURT'S EXISTENCE
INDISPENSABLE UNDER OUR FEDERAL SYSTEM. 

FROM TIME TO TIME SOME CASES WHICH OUGHT NEVER TO HAVE BEEN HERE IN
THE FIRST INSTANCE ARE BOUND TO REACH THE STAGE OF ARGUMENT, DESPITE
THE PROCESS BY WHICH THE WHEAT OF WORTHY PETITIONS FOR CERTIORARI IS
SIFTED FROM THE VAST CHAFF OF CASES FOR WHICH REVIEW IS SOUGHT HERE,
TOO OFTEN BECAUSE OF THE BLIND LITIGIOUSNESS OF PARTIES OR OF THE
IRRESPONSIBILITY AND EXCESSIVE ZEAL OF THEIR COUNSEL.  SINCE THE
JUDICIARY ACT OF 1925, SUCCESSIVE CHIEF JUSTICES HAVE REPEATEDLY
BROUGHT THIS ABUSE OF THE CERTIORARI PRIVILEGE TO THE ATTENTION OF THE
BAR, BUT THUS FAR WITHOUT AVAIL.  WHEN IT IS CONSIDERED THAT AT THE
LAST TERM THE COURT PASSED ON 987 SUCH PETITIONS, IT IS SURPRISING, NOT
THAT PETITIONS ARE GRANTED THAT ESCAPED APPROPRIATE WEEDING-OUT - AND,
PARENTHETICALLY, THAT A FEW ARE INAPPROPRIATELY DENIED - BUT THAT THE
PROCESS OF REJECTION WORKS AS WELL AS IT DOES.  (FN1)  AND OF COURSE
DISPOSITION OF THIS VOLUME OF PETITIONS FOR CERTIORARI IS THE SMALLER
PART OF THE COURT'S WORK.  (FN2)    THE FACT THAT A CASE INAPPROPRIATE
FOR REVIEW ESCAPED DENIAL THROUGH A WEEDING-OUT PROCESS THAT IS BOUND
TO BE CIRCUMSCRIBED, IS NO REASON FOR COMPOUNDING THE OVERSIGHT BY
DISPOSING OF SUCH A CASE ON THE MERITS, AFTER ARGUMENT HAS MADE MORE
LUMINOUSLY CLEAR THAN DID THE PRELIMINARY EXAMINATION OF THE PAPERS
THAT THE LITIGATION OUGHT TO BE ALLOWED TO REST WHERE IT IS BY
DISMISSING THE WRIT.  THE REASON FOR THIS WAS SET FORTH ON BEHALF OF
THE COURT BY MR. CHIEF JUSTICE TAFT: 

"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."  LAYNE & BOWLER CORP.
V. WESTERN WELL WORKS, INC., 261 U.S. 387, 393. 

IN FAIRNESS TO THE EFFECTIVE ADJUDICATION OF THOSE CASES FOR WHICH
THE COURT SITS, THE COURT HAS AGAIN AND AGAIN ACTED ON THESE
CONSIDERATIONS AND DISMISSED THE WRIT AS "IMPROVIDENTLY GRANTED" AFTER
THE PRELIMINARY AND NECESSARILY TENTATIVE CONSIDERATION OF THE
PETITION.  (FN3)  THESE REASONS ARE ESPECIALLY COMPELLING WHEN THE
COURT'S MISTAKE IN ASSUMING THAT AN IMPORTANT ISSUE OF GENERAL LAW WAS
INVOLVED DOES NOT SURVIVE ARGUMENT AS TO CASES LIKE THE PRESENT, WHICH
WERE PART OF THE VAST SUMMER ACCUMULATION OF PETITIONS TO COME BEFORE
THE COURT AT THE OPENING OF THE TERM.  (FN4) 

FN1  COMPARE THE 154 PETITIONS FOR CERTIORARI PRESENTED TO THE COURT
DURING THE OCTOBER TERM, 1915.  EVEN ONE-SIXTH OF OUR CURRENT VOLUME OF
PETITIONS IMPELLED THE COURT TO EMPHASIZE THE ADMINISTRATIVE IMPORTANCE
OF FREEING THIS COURT FROM THE IMPOSITION OF IMPROPERLY GRANTED
PETITIONS FOR CERTIORARI.  FURNESS, WITHY & CO. V. YANG-TSZE INS.
ASSN., LTD., 242 U.S. 430, 434. 

FN2  IN ADDITION TO PASSING UPON THE 987 PETITIONS FOR CERTIORARI,
THE COURT DURING THE LAST TERM CONSIDERED AND DISPOSED OF 77 CASES BY
THE "PER CURIAM DECISIONS," 121 "OTHER APPLICATIONS" ON THE
MISCELLANEOUS DOCKET, AND 5 CASES ON THE ORIGINAL DOCKET, AND AFTER
ARGUMENT DECIDED WITH FULL OPINION 114 CASES.  JOURNAL SUP. COURT U.S.,
OCTOBER TERM, 1950, I. 

FN3  UNITED STATES V. RIMER, 220 U.S. 547; FURNESS, WITHY & CO. V.
YANG-TSZE INS. ASSN., LTD., SUPRA; TYRRELL V. DISTRICT OF COLUMBIA, 243
U.S. 1; LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, INC., SUPRA;
SOUTHERN POWER CO. V. NORTH CAROLINA PUBLIC SERVICE CO., 263 U.S. 508;
KELLER V. ADAMS-COMPBELL CO., 264 U.S. 314; WISCONSIN ELEC.  CO. V.
DUMORE CO., 282 U.S. 813; SANCHEZ V. BORRAS, 283 U.S. 798; FRANKLIN
AMERICAN TRUST CO. V. ST. LOUIS UNION TRUST CO., 286 U.S. 533; MOOR V.
TEXAS & NEW ORLEANS R. CO., 297 U.S. 101; TEXAS & NEW ORLEANS R. CO. V.
NEILL, 302 U.S. 645; GOODMAN V. UNITED STATES, 305 U.S. 578; GOINS V.
UNITED STATES, 306 U.S. 622; MCCULLOUGH V. KAMMERER CORP., 323 U.S.
327; MCCARTHY V. BRUNER, 323 U.S. 673.  SEE ALSO WASHINGTON FIDELITY
NAT. INS. CO. V. BURTON, 287 U.S. 97, 100; WILKERSON V. MCCARTHY, 336
U.S. 53, 64. 

FN4  BOTH OF THE PETITIONS IN THESE CASES WERE FILED ON MAY 3, 1951,
AND GRANTED ON OCTOBER 8, 1951.  342 U.S. 808, 809.  AT THIS TERM'S
OPENING THE COURT PASSED ON 224 PETITIONS FOR CERTIORARI ACCUMULATED
DURING THE SUMMER.  IN ADDITION, AT THE BEGINNING OF THIS TERM 4 CASES
WERE DISMISSED ON MOTION, 6 OTHER CASES WERE DISPOSED OF BY "PER CURIAM
DECISIONS," AND 14 MISCELLANEOUS DOCKET "APPLICATIONS" WERE DISPOSED
OF. 

MR. JUSTICE DOUGLAS, DISSENTING. 

FIRST.  IF THE SHANNONS WERE THE ONLY PLAINTIFFS IN THE ACTION, I
ASSUME THAT THE ANTI-ASSIGNMENT ACT, R.S. SEC. 3477, WOULD BAR A
RECOVERY.  BUT THE SHANNONS - THE ASSIGNEES - HAVE JOINED THE BOSHAMERS
- THE ASSIGNORS - AS DEFENDANTS.  HENCE ALL THE PARTIES WHO CAN
POSSIBLY BE AFFECTED BY THE ASSIGNMENT ARE BEFORE THE COURT.  CERTAINLY
THE BOSHAMERS COULD RECOVER FROM THE UNITED STATES AND, IF THE
ASSIGNMENT WERE TREATED AS VOID (AS AGAINST THE UNITED STATES), ANY
RECOVERY BY THE BOSHAMERS WOULD IN EQUITY BELONG TO THE SHANNONS.  SEE
MARTIN V. NATIONAL SURETY CO., 300 U.S. 588, 597.  IF THEY CAN RECOVER,
I SEE NO REASON, EXCEPT A NARROW CONCEPTUAL ONE, WHY IN THIS PROCEEDING
THE ENTIRE CONTROVERSY CANNOT BE SETTLED.  THE JUDGMENT OBTAINED BY THE
BOSHAMERS AGAINST THE UNITED STATES WOULD IN GOOD CONSCIENCE HAVE TO BE
HELD IN TRUST FOR THE SHANNONS. 

SECOND.  THE SUGGESTION THAT THE WRIT BE DISMISSED AS IMPROVIDENTLY
GRANTED RAISES A RECURRING PROBLEM IN THE ADMINISTRATION OF THE
BUSINESS OF THE COURT.  A JUSTICE WHO HAS VOTED TO DENY THE WRIT OF
CERTIORARI IS IN NO POSITION AFTER ARGUMENT TO VOTE TO DISMISS THE WRIT
AS IMPROVIDENTLY GRANTED.  ONLY THOSE WHO HAVE VOTED TO GRANT THE WRIT
HAVE THAT PRIVILEGE.  THE REASON STRIKES DEEP.   IF AFTER THE WRIT IS
GRANTED OR AFTER ARGUMENT, THOSE WHO VOTED TO DENY CERTIORARI VOTE TO
DISMISS THE WRIT AS IMPROVIDENTLY GRANTED, THE INTEGRITY OF OUR
CERTIORARI JURISDICTION IS IMPAIRED.  BY LONG PRACTICE - ANNOUNCED TO
THE CONGRESS AND WELL-KNOWN TO THIS BAR - IT TAKES FOUR VOTES OUT OF A
COURT OF NINE TO GRANT A PETITION FOR CERTIORARI.  IF FOUR CAN GRANT
AND THE OPPOSING FIVE DISMISS, THEN THE FOUR CANNOT GET A DECISION OF
THE CASE ON THE MERITS.  THE INTEGRITY OF THE FOUR-VOTE RULE ON
CERTIORARI WOULD THEN BE IMPAIRED. 
..END :













UNITED STATES V. HAYMAN 342 U.S. 205 


NO. 23.  ARGUED OCTOBER 15, 1951 - DECIDED JANUARY 7, 1952 - 187 F.2D
456, JUDGMENT VACATED. 


UNDER 28 U.S.C. SEC. 2255, WHICH PROVIDES THAT A FEDERAL PRISONER MAY
MOVE THE SENTENCING COURT TO VACATE, SET ASIDE OR CORRECT ANY SENTENCE
SUBJECT TO COLLATERAL ATTACK, RESPONDENT, CONFINED IN A FEDERAL
PENITENTIARY IN THE STATE OF WASHINGTON, FILED IN THE FEDERAL DISTRICT
COURT IN CALIFORNIA A MOTION TO VACATE HIS SENTENCE AND GRANT A NEW
TRIAL.  HE ALLEGED THAT AT HIS TRIAL HE DID NOT HAVE THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT, BECAUSE HIS
COUNSEL WAS ALSO COUNSEL FOR ANOTHER PERSON, WHO WAS THE PRINCIPAL
WITNESS AGAINST RESPONDENT AND WAS DEFENDANT IN A RELATED CASE.  THE
DISTRICT COURT, WITHOUT NOTICE TO RESPONDENT AND WITHOUT ORDERING THE
PRESENCE OF RESPONDENT, FOUND THAT THE COUNSEL'S DUAL REPRESENTATION
WAS WITH RESPONDENT'S KNOWLEDGE AND CONSENT, AND DENIED RESPONDENT'S
MOTION.  HELD:  THE DISTRICT COURT ERRED IN DETERMINING THE FACTUAL
ISSUES RAISED BY RESPONDENT'S MOTION UNDER SEC. 2255 WITHOUT NOTICE TO
RESPONDENT AND WITHOUT HIS PRESENCE.  PP. 206-224. 

1.  A REVIEW OF THE HISTORY OF SEC. 2255 SHOWS THAT IT WAS PASSED AT
THE INSTANCE OF THE JUDICIAL CONFERENCE TO MEET PRACTICAL PROBLEMS THAT
HAD ARISEN IN ADMINISTERING THE HABEAS CORPUS JURISDICTION OF THE
FEDERAL COURTS.  PP. 210-219. 

2.  SECTION 2255 WAS NOT INTENDED TO IMPINGE UPON PRISONERS' RIGHTS
OF COLLATERAL ATTACK UPON THEIR CONVICTIONS; ITS SOLE PURPOSE WAS TO
MINIMIZE THE DIFFICULTIES ENCOUNTERED IN HABEAS CORPUS HEARINGS BY
AFFORDING THE SAME RIGHTS IN ANOTHER AND MORE CONVENIENT FORUM.  PP.
214-219. 

3.  IN MAKING FINDINGS ON CONTROVERTED ISSUES OF FACT RELATING TO
RESPONDENT'S OWN KNOWLEDGE WITHOUT NOTICE TO RESPONDENT AND WITHOUT HIS
BEING PRESENT, THE DISTRICT COURT DID NOT PROCEED IN CONFORMITY WITH
SEC. 2255.  PP. 219-223. 

(A)  THE CRUCIAL ISSUE OF FACT PRESENTED BY RESPONDENT'S MOTION UNDER
SEC. 2255 WAS WHETHER HIS COUNSEL REPRESENTED THE OTHER PERSON WITH
RESPONDENT'S KNOWLEDGE AND CONSENT, AND RESPONDENT'S PRESENCE AT A
HEARING ON THIS ISSUE IS NECESSARY IF THE PROCEDURE UNDER SEC. 2255 IS
TO BE ADEQUATE AND EFFECTIVE IN THIS CASE.  PP. 219-220. 

(B)  ISSUANCE OF AN ORDER TO PRODUCE THE PRISONER IS AUXILIARY TO THE
JURISDICTION OF THE TRIAL COURT OVER RESPONDENT GRANTED IN SEC. 2255
ITSELF AND INVOKED BY RESPONDENT'S FILING OF A MOTION UNDER THAT

(C)  WHERE, AS HERE, THERE ARE SUBSTANTIAL ISSUES OF FACT AS TO
EVENTS IN WHICH THE PRISONER PARTICIPATED, THE TRIAL COURT SHOULD
REQUIRE HIS PRODUCTION FOR A HEARING.  PP. 222-223. 

4.  THE PROCEDURE PRESCRIBED BY SEC. 2255 WILL BE ADEQUATE AND
EFFECTIVE IF RESPONDENT IS PRESENT FOR A HEARING IN THE DISTRICT COURT
ON REMAND OF THIS CASE; AND, IN THE CIRCUMSTANCES, THIS COURT DOES NOT
REACH THE CONSTITUTIONAL QUESTIONS PRESENTED.  P. 223. 

5.  THE COURT OF APPEALS CORRECTLY REVERSED THE ORDER OF THE DISTRICT
COURT, BUT SHOULD HAVE REMANDED THE CASE FOR A HEARING UNDER SEC. 2255
INSTEAD OF ORDERING THAT RESPONDENT'S MOTION BE DISMISSED.  PP. 223
224. 

UNITED STATES V. HAYMAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

RESPONDENT'S MOTION UNDER 28 U.S.C. SEC. 2255, TO VACATE HIS SENTENCE
AND GRANT A NEW TRIAL, WAS DENIED BY THE DISTRICT COURT.  THE COURT OF
APPEALS REVERSED AND ORDERED THE MOTION DISMISSED.  187 F.2D 456.  THIS
COURT GRANTED CERTIORARI.  341 U.S. 930.  VACATED AND REMANDED, P.
224. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN ITS 1948 REVISION OF THE JUDICIAL CODE, CONGRESS PROVIDED THAT
PRISONERS IN CUSTODY UNDER SENTENCE OF A FEDERAL COURT MAY MOVE THE
SENTENCING COURT TO VACATE, SET ASIDE OR CORRECT ANY SENTENCE SUBJECT
TO COLLATERAL ATTACK.  28 U.S.C. (SUPP. IV) SEC. 2255.  (FN1) 

RESPONDENT, CONFINED AT THE MCNEIL ISLAND PENITENTIARY IN THE WESTERN
DISTRICT OF WASHINGTON, (FN2) INVOKED THIS NEW PROCEDURE BY FILING A
MOTION TO VACATE HIS SENTENCE AND GRANT A NEW TRIAL IN THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA.  THAT COURT HAD IMPOSED
A SENTENCE OF TWENTY YEARS' IMPRISONMENT IN 1947 FOR FORGING GOVERNMENT
CHECKS AND RELATED VIOLATIONS OF FEDERAL LAW.  (FN3) 

IN HIS MOTION, RESPONDENT ALLEGED THAT HE DID NOT ENJOY THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED DEFENDANTS IN FEDERAL COURTS BY THE
SIXTH AMENDMENT.  SPECIFICALLY, HE ALLEGED THAT ONE JUANITA JACKSON, A
PRINCIPAL WITNESS AGAINST RESPONDENT AT HIS TRIAL AND A DEFENDANT IN A
RELATED CASE, WAS REPRESENTED BY THE SAME LAWYER AS RESPONDENT. 
RESPONDENT CLAIMS THAT HE WAS NOT TOLD OF THE DUAL REPRESENTATION AND
THAT HE HAD NO WAY OF DISCOVERING THE CONFLICT UNTIL AFTER THE TRIAL
WAS OVER.  IT APPEARED FROM COURT RECORDS THAT JUANITA JACKSON
TESTIFIED AGAINST RESPONDENT AFTER ENTERING A PLEA OF GUILTY BUT BEFORE
SENTENCE.  SINCE A CONFLICT IN THE INTERESTS OF HIS ATTORNEY MIGHT HAVE
PREJUDICED RESPONDENT UNDER THESE CIRCUMSTANCES, THE SENTENCING COURT
AND THE COURT BELOW, ONE JUDGE DISSENTING, FOUND THAT THE ALLEGATIONS
OF RESPONDENT'S MOTION WARRANTED A HEARING.  RESPONDENT'S MOTION
REQUESTED THE ISSUANCE OF AN ORDER TO SECURE HIS PRESENCE AT SUCH A
HEARING. 

FOR THREE DAYS, THE DISTRICT COURT RECEIVED TESTIMONY IN CONNECTION
WITH THE ISSUES OF FACT RAISED BY THE MOTION.  THIS PROCEEDING WAS
CONDUCTED WITHOUT NOTICE TO RESPONDENT AND WITHOUT ORDERING THE
PRESENCE OF RESPONDENT.  ON THE BASIS OF THIS EX PARTE INVESTIGATION,
THE DISTRICT COURT FOUND AS A FACT THAT RESPONDENT'S COUNSEL HAD ALSO
REPRESENTED JUANITA JACKSON BUT THAT HE "DID SO ONLY WITH THE KNOWLEDGE
AND CONSENT, AND AT THE INSTANCE AND REQUEST OF RESPONDENT."  PURSUANT
TO THIS FINDING, THE DISTRICT COURT ENTERED AN ORDER DENYING
RESPONDENT'S MOTION TO VACATE HIS SENTENCE AND TO GRANT A NEW TRIAL. 

ON APPEAL TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT, (FN4) THE
MAJORITY, ACTING SUA SPONTE, RAISED QUESTIONS AS TO THE ADEQUACY AND
CONSTITUTIONALITY OF SECTION 2255.  THE COURT ADDRESSED ITSELF TO THE
PROVISION THAT AN APPLICATION FOR A WRIT OF HABEAS CORPUS "SHALL NOT BE
ENTERTAINED" WHERE THE SENTENCING COURT HAS DENIED RELIEF "UNLESS IT
ALSO APPEARS THAT THE REMEDY BY MOTION IS INADEQUATE OR INEFFECTIVE TO
TEST THE LEGALITY OF HIS DETENTION."  CONSIDERING THAT THE PROCEEDINGS
IN THE DISTRICT COURT WERE PROPER UNDER THE TERMS OF SECTION 2255, THE
COURT BELOW HELD, ONE JUDGE DISSENTING, THAT THE SECTION 2255 PROCEDURE
COULD NOT BE ADEQUATE OR EFFECTIVE IN THIS CASE AND, IN THE
ALTERNATIVE, THAT THE SECTION, IN PRECLUDING RESORT TO HABEAS CORPUS,
AMOUNTED TO AN UNCONSTITUTIONAL "SUSPENSION" OF THE WRIT OF HABEAS
CORPUS AS TO RESPONDENT.  (FN5) 

ON REHEARING BELOW, AND AGAIN IN THIS COURT, THE GOVERNMENT CONCEDED
THAT RESPONDENT'S MOTION RAISED FACTUAL ISSUES WHICH REQUIRED
RESPONDENT'S PRESENCE AT A HEARING.  THE COURT OF APPEALS, HOWEVER,
REFUSED EITHER TO AFFIRM THE DENIAL OF RESPONDENT'S MOTION OR TO ACCEPT
THE GOVERNMENT'S CONCESSION AND REMAND THE CASE FOR A HEARING WITH
RESPONDENT PRESENT.  INSTEAD, IT TREATED SECTION 2255 AS A NULLITY AND
ORDERED RESPONDENT'S MOTION DISMISSED SO THAT RESPONDENT MIGHT PROCEED
BY HABEAS CORPUS IN THE DISTRICT OF HIS CONFINEMENT.  187 F.2D 456. 

WE GRANTED CERTIORARI IN THIS CASE, 341 U.S. 930 (1951), TO REVIEW
THE DECISION THAT SECTION 2255 MUST BE CONSIDERED A NULLITY, A HOLDING
THAT STANDS IN CONFLICT WITH CASES DECIDED IN OTHER CIRCUITS.  (FN6)
WE DO NOT RECONSIDER THE CONCURRENT FINDINGS OF BOTH COURTS BELOW THAT
RESPONDENT'S MOTION STATES GROUNDS TO SUPPORT A COLLATERAL ATTACK ON
HIS SENTENCE AND RAISES SUBSTANTIAL ISSUES OF FACT CALLING FOR AN
INQUIRY INTO THEIR VERITY. 

FIRST.  THE NEED FOR SECTION 2255 IS BEST REVEALED BY A REVIEW OF THE
PRACTICAL PROBLEMS THAT HAD ARISEN IN THE ADMINISTRATION OF THE FEDERAL
COURTS' HABEAS CORPUS JURISDICTION. 

POWER TO ISSUE THE WRIT OF HABEAS CORPUS, "THE MOST CELEBRATED WRIT
IN THE ENGLISH LAW," (FN7) WAS GRANTED TO THE FEDERAL COURTS IN THE
JUDICIARY ACT OF 1789, 1 STAT. 73, 81-82.  SINCE CONGRESS HAD NOT
DEFINED THE TERM "HABEAS CORPUS," RESORT TO THE COMMON LAW WAS
NECESSARY.  (FN8)  ALTHOUGH THE OBJECTIVE OF THE GREAT WRIT LONG HAS
BEEN THE LIBERATION OF THOSE UNLAWFULLY IMPRISONED, AT COMMON LAW A
JUDGMENT OF CONVICTION RENDERED BY A COURT OF GENERAL CRIMINAL
JURISDICTION WAS CONCLUSIVE PROOF THAT CONFINEMENT WAS LEGAL.  SUCH A
JUDGMENT PREVENTED ISSUANCE OF THE WRIT WITHOUT MORE.  (FN9) 

IN 1867, CONGRESS CHANGED THE COMMON-LAW RULE BY EXTENDING THE WRIT
OF HABEAS CORPUS TO "ALL CASES WHERE ANY PERSON MAY BE RESTRAINED OF
HIS OR HER LIBERTY IN VIOLATION OF THE CONSTITUTION, OR OF ANY TREATY
OR LAW OF THE UNITED STATES," AND PROVIDING FOR INQUIRY INTO THE FACTS
OF DETENTION.  14 STAT. 385.  IN COMMENTING ON THE 1867 ACT THIS COURT
HAS SAID: 

"THE EFFECT IS TO SUBSTITUTE FOR THE BARE LEGAL REVIEW THAT SEEMS TO
HAVE BEEN THE LIMIT OF JURISDICTIONAL AUTHORITY UNDER THE COMMON-LAW
PRACTICE, AND UNDER THE ACT OF 31 CAR.  II, C. 2, A MORE SEARCHING
INVESTIGATION, IN WHICH THE APPLICANT IS PUT UPON HIS OATH TO SET FORTH
THE TRUTH OF THE MATTER RESPECTING THE CAUSES OF HIS DETENTION, AND THE
COURT, UPON DETERMINING THE ACTUAL FACTS, IS TO 'DISPOSE OF THE PARTY
AS LAW AND JUSTICE REQUIRE.' 

     *         *         *         *         * 

"  ...  A PRISONER IN CUSTODY PURSUANT TO THE FINAL JUDGMENT OF A
...  COURT OF CRIMINAL JURISDICTION MAY HAVE A JUDICIAL INQUIRY IN A
COURT OF THE UNITED STATES INTO THE VERY TRUTH AND SUBSTANCE OF THE
CAUSES OF HIS DETENTION, ALTHOUGH IT MAY BECOME NECESSARY TO LOOK
BEHIND AND BEYOND THE RECORD OF HIS CONVICTION TO A SUFFICIENT EXTENT
TO TEST THE JURISDICTION OF THE ...  COURT TO PROCEED TO JUDGMENT
AGAINST HIM  ...  ."  (FN10) 

UNDER THE 1867 ACT, (FN11) UNITED STATES DISTRICT COURTS HAVE
JURISDICTION TO DETERMINE WHETHER A PRISONER HAS BEEN DEPRIVED OF
LIBERTY IN VIOLATION OF CONSTITUTIONAL RIGHTS, ALTHOUGH THE PROCEEDINGS
RESULTING IN INCARCERATION MAY BE UNASSAILABLE ON THE FACE OF THE
RECORD.  UNDER THAT ACT, A VARIETY OF ALLEGATIONS HAVE BEEN HELD TO
PERMIT CHALLENGE OF CONVICTIONS ON FACTS DEHORS THE RECORD.  (FN12) 

ONE AFTERMATH OF THESE DEVELOPMENTS IN THE LAW HAS BEEN A GREAT
INCREASE IN THE NUMBER OF APPLICATIONS FOR HABEAS CORPUS FILED IN THE
FEDERAL COURTS BY STATE AND FEDERAL PRISONERS.  THE ANNUAL VOLUME OF
APPLICATIONS HAD NEARLY TRIPLED IN THE YEARS PRECEDING ENACTMENT OF
VOLUME OF APPLICATIONS FOR HABEAS CORPUS THAT ARE REPETITIOUS (FN14)
AND PATENTLY FRIVOLOUS, SERIOUS ADMINISTRATIVE PROBLEMS DEVELOPED IN
THE CONSIDERATION OF APPLICATIONS WHICH APPEAR MERITORIOUS ON THEIR
FACE.  OFTEN, SUCH APPLICATIONS ARE FOUND TO BE WHOLLY LACKING IN MERIT
WHEN COMPARED WITH THE RECORDS OF THE SENTENCING COURT.  BUT, SINCE A
HABEAS CORPUS ACTION MUST BE BROUGHT IN THE DISTRICT OF CONFINEMENT,
(FN15) THOSE RECORDS ARE NOT READILY AVAILABLE TO THE HABEAS CORPUS
COURT. 

WALKER V. JOHNSTON, 312 U.S. 275 (1941), ILLUSTRATES A FURTHER
PRACTICAL PROBLEM PRESENTED WHEN AN APPLICATION FOR HABEAS CORPUS
ALLEGES A MERITORIOUS CLAIM NOT CONTROVERTED BY THE RECORDS OF THE
TRIAL COURT.  IN THE NORTHERN DISTRICT OF CALIFORNIA, WALKER ALLEGED
THAT HE HAD BEEN DENIED COUNSEL AND COERCED INTO PLEADING GUILTY BY THE
UNITED STATES ATTORNEY, HIS ASSISTANT AND A DEPUTY MARSHAL IN THE
NORTHERN DISTRICT OF TEXAS.  THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA REFUSED TO GRANT THE WRIT AFTER RECEIVING EX
PARTE AFFIDAVITS FROM THE FEDERAL OFFICERS DENYING THE ALLEGATIONS. 
THIS COURT REVERSED, FINDING THAT WALKER'S APPLICATION RAISED MATERIAL
ISSUES OF FACT AND HOLDING THAT THE DISTRICT COURT MUST DETERMINE SUCH
ISSUES BY THE TAKING OF EVIDENCE, NOT BY EX PARTE AFFIDAVITS.  (FN16)
GRANTING THE NEED FOR SUCH A HEARING TO RESOLVE THE FACTUAL ISSUES, THE
REQUIRED HEARING HAD TO BE HELD IN THE HABEAS CORPUS COURT IN
CALIFORNIA ALTHOUGH THE FEDERAL OFFICERS INVOLVED WERE STATIONED IN
TEXAS AND THE FACTS OCCURRED IN TEXAS.  (FN17) 

THESE PRACTICAL PROBLEMS HAVE BEEN GREATLY AGGRAVATED BY THE FACT
THAT THE FEW DISTRICT COURTS IN WHOSE TERRITORIAL JURISDICTION MAJOR
FEDERAL PENAL INSTITUTIONS ARE LOCATED WERE REQUIRED TO HANDLE AN
INORDINATE NUMBER OF HABEAS CORPUS ACTIONS FAR FROM THE SCENE OF THE
FACTS, THE HOMES OF THE WITNESSES AND THE RECORDS OF THE SENTENCING
COURT SOLELY BECAUSE OF THE FORTUITOUS CONCENTRATION OF FEDERAL
PRISONERS WITHIN THE DISTRICT.  (FN18) 

SECOND.  THE JUDICIAL CONFERENCE OF THE UNITED STATES, (FN19)
ADDRESSING ITSELF TO THE PROBLEMS RAISED BY THE INCREASED HABEAS CORPUS
BUSINESS IN 1942, CREATED A COMMITTEE OF FEDERAL JUDGES "TO STUDY THE
ENTIRE SUBJECT OF PROCEDURE ON APPLICATIONS FOR HABEAS CORPUS IN THE
FEDERAL COURTS."  (FN20)  AT THE NEXT SESSION OF THE CONFERENCE, THE
COMMITTEE ON HABEAS CORPUS PROCEDURE SUBMITTED ITS REPORT.  AFTER
EXTENSIVE CONSIDERATION, THE JUDICIAL CONFERENCE RECOMMENDED ADOPTION
OF TWO PROPOSED BILLS, A "PROCEDURAL BILL" CONTAINING PROVISIONS
DESIGNED TO PREVENT ABUSE OF THE HABEAS CORPUS WRIT AND A
"JURISDICTIONAL BILL," SECTION 2 OF WHICH ESTABLISHED A PROCEDURE
WHEREBY A FEDERAL PRISONER MIGHT COLLATERALLY ATTACK HIS CONVICTION IN
THE SENTENCING COURT.  (FN21)  THE JUDICIAL CONFERENCE REPEATEDLY
REAFFIRMED ITS APPROVAL OF THIS FORERUNNER OF SECTION 2255.  (FN22) 

IN 1944, THE TWO BILLS APPROVED BY THE JUDICIAL CONFERENCE WERE
SUBMITTED TO THE CONGRESS ON BEHALF OF THE CONFERENCE.  IN THE LETTER
OF TRANSMITTAL AND ACCOMPANYING MEMORANDUM, SECTION 2 OF THE
"JURISDICTIONAL BILL" WAS DESCRIBED AS REQUIRING PRISONERS CONVICTED IN
FEDERAL COURTS TO APPLY BY MOTION IN THE SENTENCING COURT "INSTEAD OF
MAKING APPLICATION FOR HABEAS CORPUS IN THE DISTRICT IN WHICH THEY ARE
CONFINED."  (FN23)  AT THE REQUEST OF THE CHAIRMEN OF THE HOUSE AND
SENATE JUDICIARY COMMITTEES, A "STATEMENT" DESCRIBING THE NECESSITY AND
PURPOSES OF THE BILLS WAS SUBMITTED TO CONGRESS ON BEHALF OF THE
JUDICIAL CONFERENCE COMMITTEE ON HABEAS CORPUS PROCEDURE.  IN THIS
STATEMENT, CONGRESS WAS FURNISHED STATISTICS SHOWING IN DETAIL THE
INCREASED VOLUME OF APPLICATIONS FOR HABEAS CORPUS.  (FN24)  THE
STATEMENT, STRESSING THE PRACTICAL DIFFICULTIES ENCOUNTERED IN HEARINGS
HELD IN THE DISTRICT OF CONFINEMENT RATHER THAN THE DISTRICT OF
SENTENCE, DESCRIBED SECTION 2 OF THE "JURISDICTIONAL BILL" AS FOLLOWS: 

"THIS SECTION APPLIES ONLY TO FEDERAL SENTENCES.  IT CREATES A
STATUTORY REMEDY CONSISTING OF A MOTION BEFORE THE COURT WHERE THE
MOVANT HAS BEEN CONVICTED.  THE REMEDY IS IN THE NATURE OF, BUT MUCH
BROADER THAN, CORAM NOBIS.  THE MOTION REMEDY BROADLY COVERS ALL
SITUATIONS WHERE THE SENTENCE IS 'OPEN TO COLLATERAL ATTACK.'  AS A
REMEDY, IT IS INTENDED TO BE AS BROAD AS HABEAS CORPUS."  (FN25) 

WHILE THE BILLS PROPOSED BY THE JUDICIAL CONFERENCE WERE PENDING, THE
COMMITTEE ON REVISION OF THE LAWS OF THE HOUSE OF REPRESENTATIVES HAD
DRAFTED A BILL REVISING THE ENTIRE JUDICIAL CODE.  PORTIONS OF THIS
BILL DEALING WITH HABEAS CORPUS WERE DRAFTED TO CONFORM WITH THE BILLS
APPROVED BY THE JUDICIAL CONFERENCE, (FN26) INCLUDING SECTION 2255,
MODELED AFTER SECTION 2 OF THE "JURISDICTIONAL BILL" APPROVED BY THE
JUDICIAL CONFERENCE.  ACCORDING TO THE REVISER'S NOTE ON SECTION 2255: 

"THIS SECTION RESTATES, CLARIFIES AND SIMPLIFIES THE PROCEDURE IN THE
NATURE OF THE ANCIENT WRIT OF ERROR CORAM NOBIS.  IT PROVIDES AN
EXPEDITIOUS REMEDY FOR CORRECTING ERRONEOUS SENTENCES WITHOUT RESORT TO
HABEAS CORPUS.  IT HAS THE APPROVAL OF THE JUDICIAL CONFERENCE OF THE
UNITED STATES.  ITS PRINCIPAL PROVISIONS ARE INCORPORATED IN H.R. 4233,
SEVENTY-NINTH CONGRESS (THE SO-CALLED JURISDICTIONAL BILL)."  (FN27) 

AFTER THE HOUSE OF REPRESENTATIVES HAD PASSED THE BILL REVISING THE
JUDICIAL CODE, THE JUDICIAL CONFERENCE RECONSIDERED THE TWO BILLS
DRAFTED BY ITS COMMITTEE ON HABEAS CORPUS PROCEDURE.  THE CONFERENCE
NOTED THE IMPORTANCE OF SECURING LEGISLATION ALONG THE LINES OF ITS
PROPOSALS, APPROVED THE HABEAS CORPUS CHAPTER OF THE JUDICIAL CODE
REVISION BILL WITH TWO AMENDMENTS NOT AFFECTING SECTION 2255 AND
DIRECTED THAT CONGRESS BE INFORMED OF THE INTEREST OF THE CONFERENCE IN
THE ENACTMENT OF THE HABEAS CORPUS PROVISIONS OF THE REVISED JUDICIAL
CODE.  (FN28)    THIS REVIEW OF THE HISTORY OF SECTION 2255 SHOWS THAT
IT WAS PASSED AT THE INSTANCE OF THE JUDICIAL CONFERENCE TO MEET
PRACTICAL DIFFICULTIES THAT HAD ARISEN IN ADMINISTERING THE HABEAS
CORPUS JURISDICTION OF THE FEDERAL COURTS.  NOWHERE IN THE HISTORY OF
OF COLLATERAL ATTACK UPON THEIR CONVICTIONS.  ON THE CONTRARY, THE SOLE
PURPOSE WAS TO MINIMIZE THE DIFFICULTIES ENCOUNTERED IN HABEAS CORPUS
HEARINGS BY AFFORDING THE SAME RIGHTS IN ANOTHER AND MORE CONVENIENT
FORUM.  (FN29) 

THIRD.  THE CRUCIAL ISSUE OF FACT PRESENTED BY RESPONDENT'S MOTION
UNDER SECTION 2255 WAS WHETHER HIS ATTORNEY APPEARED AS COUNSEL FOR
JUANITA JACKSON "WITH THE KNOWLEDGE AND CONSENT" OF RESPONDENT.   THE
COURT OF APPEALS FOUND, AND THE GOVERNMENT NOW AGREES, THAT
RESPONDENT'S PRESENCE AT A HEARING ON THIS ISSUE IS REQUIRED IF THE
IN HOLDING THAT SECTION 2255 SHOULD BE TREATED AS A NULLITY IN THIS
CASE, THE COURT BELOW FOUND THAT THE SECTION CONTEMPLATED AND PERMITTED
THE EX PARTE INVESTIGATION CONDUCTED BY THE DISTRICT COURT WITHOUT
NOTICE TO RESPONDENT AND WITHOUT RESPONDENT'S PRESENCE. 

WE DO NOT FIND IN SECTION 2255 THE DISTURBING INADEQUACIES FOUND BY
THE COURT BELOW.  THE ISSUES RAISED BY RESPONDENT'S MOTION WERE NOT
DETERMINED BY THE "FILES AND RECORDS" IN THE TRIAL COURT.  IN SUCH
CIRCUMSTANCES, SECTION 2255 REQUIRES THAT THE TRIAL COURT ACT ON THE
MOTION AS FOLLOWS:  "  ...  CAUSE NOTICE THEREOF TO BE SERVED UPON THE
UNITED STATES ATTORNEY, GRANT A PROMPT HEARING THEREON, DETERMINE THE
ISSUES AND MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT
THERETO."  IN REQUIRING A "HEARING," THE SECTION "HAS OBVIOUS REFERENCE
TO THE TRADITION OF JUDICIAL PROCEEDINGS."  (FN30)  RESPONDENT, DENIED
AN OPPORTUNITY TO BE HEARD, "HAS LOST SOMETHING INDISPENSABLE, HOWEVER
CONVINCING THE EX PARTE SHOWING."  (FN31)  WE CONCLUDE THAT THE
DISTRICT COURT DID NOT PROCEED IN CONFORMITY WITH SECTION 2255 WHEN IT
MADE FINDINGS ON CONTROVERTED ISSUES OF FACT RELATING TO RESPONDENT'S
OWN KNOWLEDGE WITHOUT NOTICE TO RESPONDENT AND WITHOUT HIS BEING
PRESENT. 

THE COURT BELOW ALSO HELD THAT THE SENTENCING COURT COULD NOT HOLD
THE REQUIRED HEARING BECAUSE IT WAS WITHOUT POWER TO ORDER THE PRESENCE
OF A PRISONER CONFINED IN ANOTHER DISTRICT.  THIS WANT OF POWER WAS
THOUGHT TO FOLLOW FROM OUR DECISION IN AHRENS V. CLARK, 335 U.S. 188
(1948), WHERE WE HELD THAT THE PHRASE "WITHIN THEIR RESPECTIVE
JURISDICTIONS" IN THE HABEAS CORPUS STATUTE (FN32) REQUIRED THE
PRESENCE OF THE PRISONER WITHIN THE TERRITORIAL JURISDICTION OF THE
DISTRICT COURT AS A PREREQUISITE TO HIS FILING AN APPLICATION FOR
HABEAS CORPUS.  THIS IS NOT A HABEAS CORPUS PROCEEDING.  THE SENTENCING
COURT IN THE SOUTHERN DISTRICT OF CALIFORNIA WOULD NOT BE ISSUING AN
ORIGINAL WRIT OF HABEAS CORPUS TO SECURE RESPONDENT'S PRESENCE FROM
ANOTHER DISTRICT.  ISSUANCE OF AN ORDER TO PRODUCE THE PRISONER IS
AUXILIARY TO THE JURISDICTION OF THE TRIAL COURT OVER RESPONDENT
GRANTED IN SECTION 2255 ITSELF AND INVOKED BY RESPONDENT'S FILING OF A
MOTION UNDER THAT SECTION. 

THE VERY PURPOSE OF SECTION 2255 IS TO HOLD ANY REQUIRED HEARING IN
THE SENTENCING COURT BECAUSE OF THE INCONVENIENCE OF TRANSPORTING COURT
OFFICIALS AND OTHER NECESSARY WITNESSES TO THE DISTRICT OF
CONFINEMENT.  THE DISTRICT COURT IS NOT IMPOTENT TO ACCOMPLISH THIS
PURPOSE, AT LEAST SO LONG AS IT MAY INVOKE THE STATUTORY AUTHORITY OF
FEDERAL COURTS TO ISSUE "ALL WRITS NECESSARY OR APPROPRIATE IN AID OF
THEIR RESPECTIVE JURISDICTIONS AND AGREEABLE TO THE USAGES AND
PRINCIPLES OF LAW."  (FN33)  AN ORDER TO SECURE RESPONDENT'S PRESENCE
IN THE SENTENCING COURT TO TESTIFY OR OTHERWISE PROSECUTE HIS MOTION IS
"NECESSARY OR APPROPRIATE" (FN34) TO THE EXERCISE OF ITS JURISDICTION
UNDER SECTION 2255 AND FINDS AMPLE PRECEDENT IN THE COMMON LAW.  (FN35)
THE EXPRESS LANGUAGE OF SECTION 2255 THAT A "COURT MAY ENTERTAIN AND
DETERMINE SUCH MOTION WITHOUT REQUIRING THE PRODUCTION OF THE PRISONER
AT THE HEARING" NEGATIVES ANY PURPOSE TO LEAVE THE SENTENCING COURT
POWERLESS TO REQUIRE PRODUCTION OF THE PRISONER IN AN APPROPRIATE
CASE.  (FN36)  OTHER FEDERAL COURTS CONDUCTING SECTION 2255 PROCEEDINGS
HAVE NOT ENCOUNTERED DIFFICULTIES IN SECURING THE PRESENCE OF PRISONERS
CONFINED OUTSIDE THE DISTRICT.  (FN37) 

THE EXISTENCE OF POWER TO PRODUCE THE PRISONER DOES NOT, OF COURSE,
MEAN THAT HE SHOULD BE AUTOMATICALLY PRODUCED IN EVERY SECTION 2255
PROCEEDING.  THIS IS IN ACCORD WITH PROCEDURE IN HABEAS CORPUS
ACTIONS.  (FN38)  UNLIKE THE CRIMINAL TRIAL WHERE THE GUILT OF THE
DEFENDANT IS IN ISSUE AND HIS PRESENCE IS REQUIRED BY THE SIXTH
AMENDMENT, A PROCEEDING UNDER SECTION 2255 IS AN INDEPENDENT AND
COLLATERAL INQUIRY INTO THE VALIDITY OF THE CONVICTION.  WHETHER THE
PRISONER SHOULD BE PRODUCED DEPENDS UPON THE ISSUES RAISED BY THE
PARTICULAR CASE.  WHERE, AS HERE, THERE ARE SUBSTANTIAL ISSUES OF FACT
AS TO EVENTS IN WHICH THE PRISONER PARTICIPATED, THE TRIAL COURT SHOULD
REQUIRE HIS PRODUCTION FOR A HEARING.  (FN39) 

FOURTH.  NOTHING HAS BEEN SHOWN TO WARRANT OUR HOLDING AT THIS STAGE
OF THE PROCEEDING THAT THE SECTION 2255 PROCEDURE WILL BE "INADEQUATE
OR INEFFECTIVE" IF RESPONDENT IS PRESENT FOR A HEARING IN THE DISTRICT
COURT ON REMAND OF THIS CASE.  IN A CASE WHERE THE SECTION 2255
PROCEDURE IS SHOWN TO BE "INADEQUATE OR INEFFECTIVE," THE SECTION
PROVIDES THAT THE HABEAS CORPUS REMEDY SHALL REMAIN OPEN TO AFFORD THE
NECESSARY HEARING.  (FN40)  UNDER SUCH CIRCUMSTANCES, WE DO NOT REACH
CONSTITUTIONAL QUESTIONS.  THIS COURT WILL NOT PASS UPON THE
CONSTITUTIONALITY OF AN ACT OF CONGRESS WHERE THE QUESTION IS PROPERLY
PRESENTED UNLESS SUCH ADJUDICATION IS UNAVOIDABLE, (FN41) MUCH LESS
ANTICIPATE CONSTITUTIONAL QUESTIONS.  (FN42) 

WE CONCLUDE THAT THE DISTRICT COURT ERRED IN DETERMINING THE FACTUAL
ISSUES RAISED BY RESPONDENT'S MOTION UNDER SECTION 2255 WITHOUT NOTICE
TO RESPONDENT AND WITHOUT HIS PRESENCE.  WE HOLD THAT THE REQUIRED
HEARING CAN BE AFFORDED RESPONDENT UNDER THE PROCEDURE ESTABLISHED IN
DISTRICT COURT BUT SHOULD HAVE REMANDED THE CASE FOR A HEARING UNDER
DISMISSED.  ACCORDINGLY, WE VACATE THE JUDGMENT OF THE COURT OF APPEALS
AND REMANDED THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  VACATED AND REMANDED. 

FN1  "A PRISONER IN CUSTODY UNDER SENTENCE OF A COURT ESTABLISHED BY
ACT OF CONGRESS CLAIMING THE RIGHT TO BE RELEASED UPON THE GROUND THAT
THE SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR LAWS OF
THE UNITED STATES, OR THAT THE COURT WAS WITHOUT JURISDICTION TO IMPOSE
SUCH SENTENCE, OR THAT THE SENTENCE WAS IN EXCESS OF THE MAXIMUM
AUTHORIZED BY LAW, OR IS OTHERWISE SUBJECT TO COLLATERAL ATTACK, MAY
MOVE THE COURT WHICH IMPOSED THE SENTENCE TO VACATE, SET ASIDE OR
CORRECT THE SENTENCE. 

"A MOTION FOR SUCH RELIEF MAY BE MADE AT ANY TIME. 

"UNLESS THE MOTION AND THE FILES AND RECORDS OF THE CASE CONCLUSIVELY
SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF, THE COURT SHALL CAUSE
NOTICE THEREOF TO BE SERVED UPON THE UNITED STATES ATTORNEY, GRANT A
PROMPT HEARING THEREON, DETERMINE THE ISSUES AND MAKE FINDINGS OF FACT
AND CONCLUSIONS OF LAW WITH RESPECT THERETO.  IF THE COURT FINDS THAT
THE JUDGMENT WAS RENDERED WITHOUT JURISDICTION, OR THAT THE SENTENCE
IMPOSED WAS NOT AUTHORIZED BY LAW OR OTHERWISE OPEN TO COLLATERAL
ATTACK, OR THAT THERE HAS BEEN SUCH A DENIAL OR INFRINGEMENT OF THE
CONSTITUTIONAL RIGHTS OF THE PRISONER AS TO RENDER THE JUDGMENT
VULNERABLE TO COLLATERAL ATTACK, THE COURT SHALL VACATE AND SET THE
JUDGMENT ASIDE AND SHALL DISCHARGE THE PRISONER OR RESENTENCE HIM OR
GRANT A NEW TRIAL OR CORRECT THE SENTENCE AS MAY APPEAR APPROPRIATE. 

"A COURT MAY ENTERTAIN AND DETERMINE SUCH MOTION WITHOUT REQUIRING
THE PRODUCTION OF THE PRISONER AT THE HEARING. 

"THE SENTENCING COURT SHALL NOT BE REQUIRED TO ENTERTAIN A SECOND OR
SUCCESSIVE MOTION FOR SIMILAR RELIEF ON BEHALF OF THE SAME PRISONER. 

"AN APPEAL MAY BE TAKEN TO THE COURT OF APPEALS FROM THE ORDER
ENTERED ON THE MOTION AS FROM A FINAL JUDGMENT ON APPLICATION FOR A
WRIT OF HABEAS CORPUS. 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PRISONER
WHO IS AUTHORIZED TO APPLY FOR RELIEF BY MOTION PURSUANT TO THIS
FAILED TO APPLY FOR RELIEF, BY MOTION, TO THE COURT WHICH SENTENCED
HIM, OR THAT SUCH COURT HAS DENIED HIM RELIEF, UNLESS IT ALSO APPEARS
THAT THE REMEDY BY MOTION IS INADEQUATE OR INEFFECTIVE TO TEST THE
LEGALITY OF HIS DETENTION." 

FN2  RESPONDENT IS NOW CONFINED AT ALCATRAZ IN THE NORTHERN DISTRICT
OF CALIFORNIA. 

FN3  THE JUDGMENT OF CONVICTION WAS AFFIRMED BY THE COURT OF APPEALS
FOR THE NINTH CIRCUIT.  163 F.2D 1018 (1947). 

FN4  THE APPEAL WAS TIMELY.  APPEALS FROM ORDERS DENYING MOTIONS
UNDER SECTION 2255 ARE GOVERNED BY THE CIVIL RULES APPLICABLE TO
APPEALS FROM FINAL JUDGMENTS IN HABEAS CORPUS ACTIONS.  SEE MERCADO V.
UNITED STATES, 183 F.2D 486 (C.A. 1ST CIR. 1950). 

FN5  "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE
SUSPENDED, UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC
SAFETY MAY REQUIRE IT."  U.S. CONST., ART. I, SEC. 9, CL. 2. 

FN6  MARTIN V. HIATT, 174 F.2D 350 (C.A. 5TH CIR. 1949), AND BARRETT
V. HUNTER, 180 F.2D 510 (C.A. 10TH CIR. 1950), HAVE HELD EXPRESSLY THAT
BASIS OF SECTION 2255 IN THE FOLLOWING CASES IN OTHER CIRCUITS WITHOUT
ANY SUGGESTION THAT THE SECTION WAS INVALID:  SMITH V. REID, 89 U.S.
APP. D.C. - , 191 F.2D 491 (C.A.D.C. CIR. 1951); MEYERS V. WELCH, 179
F.2D 707 (C.A. 4TH CIR. 1950); WEBER V. STEELE, 185 F.2D 799 (C.A. 8TH
CIR. 1950).  AND IN THE FOLLOWING CASES, OTHER CIRCUITS REMANDED
190 F.2D 445 (C.A.2D CIR. 1951); HOWARD V. UNITED STATES, 186 F.2D 778
(C.A. 6TH CIR. 1951); UNITED STATES V. VON WILLER, 181 F.2D 774 (C.A.
7TH CIR. 1950). 

FN7  3 BLACKSTONE'S COMMENTARIES 129.  THE ANCIENT ORIGINS OF HABEAS
CORPUS ARE TRACED IN 9 HOLDSWORTH, HISTORY OF ENGLISH LAW (1926), 108
125; JENKS, THE STORY OF HABEAS CORPUS, 18 L.Q. REV. 64 (1902);
LONGSDORF, HABEAS CORPUS:  A PROTEAN WRIT AND REMEDY, 8 F.R.D. 179
(1948). 

FN8  EX PARTE BOLLMAN, 4 CRANCH 75, 93-94 (1807). 

FN9  EX PARTE WATKINS, 3 PET. 193 (1830). 

FN10  JOHNSON V. ZERBST, 304 U.S. 458, 466 (1938)(FEDERAL PRISONER);
FRANK V. MANGUM, 237 U.S. 309, 330-331 (1915)(STATE PRISONER). 

FN11  NOW INCORPORATED IN 28 U.S.C. (SUPP. IV) SEC. 2241 ET SEQ. 

FN12  MOORE V. DEMPSEY, 261 U.S. 86 (1923)(MOB DOMINATION OF TRIAL);
MOONEY V. HOLOHAN, 294 U.S. 103 (1935)(KNOWING USE OF PREJURED
TESTIMONY BY PROSECUTION); JOHNSON V. ZERBST, 304 U.S. 458 (1938)(NO
INTELLIGENT WAIVER OF COUNSEL IN FEDERAL COURT); WALEY V. JOHNSTON, 316
U.S. 101 (1942)(COERCED PLEA OF GUILTY); UNITED STATES EX REL. MCCANN
V. ADAMS, 320 U.S. 220 (1943)(NO INTELLIGENT WAIVER OF JURY TRIAL IN
FEDERAL COURT); HOUSE V. MAYO, 324 U.S. 42 (1945)(DENIAL OF RIGHT TO
CONSULT WITH COUNSEL). 

FN13  DURING 1936 AND 1937, AN ANNUAL AVERAGE OF 310 APPLICATIONS FOR
HABEAS CORPUS WERE FILED IN THE DISTRICT COURTS AND AN ANNUAL AVERAGE
OF 22 PRISONERS WERE RELEASED.  BY 1943, 1944 AND 1945, HOWEVER, THE
ANNUAL AVERAGE OF FILINGS REACHED 845, ALTHOUGH AN AVERAGE OF ONLY 26
PRISONERS WERE RELEASED PER YEAR.  FIGURES FROM TABLES SUBMITTED TO THE
CHAIRMAN OF THE HOUSE AND SENATE JUDICIARY COMMITTEES.  SEE PP. 215
216, INFRA. 

THESE FIGURES DO NOT INCLUDE THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA WHERE A SIMILAR INCREASE IN THE VOLUME OF APPLICATIONS FOR
HABEAS CORPUS HAD BEEN REPORTED.  SEE DORSEY V. GILL, 80 U.S. APP. D.C.
9, 14, 148 F.2D 857, 862 (C.A.D.C. CIR. 1945). 

FN14  IN SEVERAL DISTRICTS, UP TO 40% OF ALL APPLICATIONS FOR HABEAS
CORPUS FILED DURING THE YEARS 1943, 1944 AND 1945 WERE SO-CALLED
REPEATER PETITIONS.  SPECK, STATISTICS ON FEDERAL HABEAS CORPUS, 10
OHIO ST. L.J. 337, 352 (1949).  SEE ALSO PRICE V. JOHNSTON, 334 U.S.
266 (1948); DORSEY V. GILL, NOTE 13, SUPRA; GOODMAN, USE AND ABUSE OF
THE WRIT OF HABEAS CORPUS, 7 F.R.D. 313 (1947). 

FN15  AHRENS V. CLARK, 335 U.S. 188 (1948). 

FN16  NOR CAN THE FACTUAL ISSUES BE HEARD BEFORE A COMMISSIONER. 
HOLIDAY V. JOHNSTON, 313 U.S. 342 (1941). 

FN17  IT WAS TO MEET THIS PROBLEM THAT THE ADVISORY COMMITTEE ON THE
FEDERAL RULES OF CRIMINAL PROCEDURE PROPOSED THAT A MOTION FOR NEW
TRIAL ON THE GROUND THAT A DEFENDANT HAS BEEN DEPRIVED OF A
CONSTITUTIONAL RIGHT MIGHT BE MADE AT ANY TIME AFTER JUDGMENT.  REPORT
OF THE ADVISORY COMMITTEE (1944) RULE 35.  THIS PROPOSAL WAS NOT
INCLUDED IN THE RULES AS FINALLY PROMULGATED.  SEE DESSION, THE NEW
FEDERAL RULES OF CRIMINAL PROCEDURE:  II, 56 YALE L.J. 197, 233
(1947). 

FN18  OF ALL HABEAS CORPUS APPLICATIONS FILED BY FEDERAL PRISONERS,
63% WERE FILED IN BUT FIVE OF THE EIGHTY-FOUR DISTRICT COURTS.  AND,
ALTHOUGH HABEAS CORPUS TRIALS AVERAGE ONLY 3% OF ALL TRIALS IN ALL
DISTRICTS, THE PROPORTION OF HABEAS CORPUS TRIALS IN THOSE FIVE
DISTRICTS HAS RUN FROM 20% TO AS HIGH AS 65% OF ALL TRIALS CONDUCTED IN
THE DISTRICT. 

THE BASIC DATA, COMPILED BY SPECK, NOTE 14, SUPRA, COVERS THE SIX
YEARS IMMEDIATELY PRECEDING ENACTMENT OF SECTION 2255 IN 1948.  AGAIN,
THE FIGURES DO NOT INCLUDE THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA.  THE FIVE DISTRICTS ARE:  NORTHERN CALIFORNIA (ALCATRAZ);
NORTHERN GEORGIA (ATLANTA); KANSAS (LEAVENWORTH); WESTERN WASHINGTON
(MCNEIL IS.); AND WESTERN MISSOURI (SPRINGFIELD MEDICAL CENTER). 
FN19  THE JUDICIAL CONFERENCE OF THE UNITED STATES, ESTABLISHED BY
CONGRESS IN 1922, 42 STAT. 838, IS A CONFERENCE OF THE CHIEF JUDGES OF
THE JUDICIAL CIRCUITS AND THE CHIEF JUSTICE OF THE UNITED STATES.  IT
IS THE FUNCTION OF THE JUDICIAL CONFERENCE TO MAKE A COMPREHENSIVE
SURVEY OF THE CONDITION OF BUSINESS IN THE COURTS OF THE UNITED
STATES.  ITS PROCEEDINGS, TOGETHER WITH ITS RECOMMENDATIONS FOR
LEGISLATION, ARE SUBMITTED TO CONGRESS.  28 U.S.C. (SUPP. IV) SEC.
331. 

FN20  REPORT OF THE JUDICIAL CONFERENCE (1942) 18.    FN21  REPORT OF
THE JUDICIAL CONFERENCE (1943) 22-24. 

FN22  REPORT OF THE JUDICIAL CONFERENCE (1944) 22; ID. (1945) 18. 

FN23  LETTER OF TRANSMITTAL, DATED MARCH 2, 1944.  THE COMPLETE
DESCRIPTION OF SECTION 2 OF THE JURISDICTIONAL BILL IN THE MEMORANDUM
IS AS FOLLOWS: 

"SECTION TWO OF THE JURISDICTIONAL BILL REFERS TO PRISONERS WHO HAVE
BEEN CONVICTED IN A FEDERAL COURT, AND REQUIRES THEM, INSTEAD OF MAKING
APPLICATION FOR HABEAS CORPUS IN THE DISTRICT IN WHICH THEY ARE
CONFINED, TO APPLY BY MOTION TO THE TRIAL COURT TO VACATE OR SET ASIDE
THE JUDGMENT.  THAT COURT IS THEN REQUIRED TO GRANT A PROMPT HEARING
AND RENDER ITS DECISION ON THE MOTION, FROM WHICH AN APPEAL LIES TO THE
CIRCUIT COURT OF APPEALS.  IF IT APPEARS THAT IT IS NOT PRACTICABLE FOR
THE PRISONER TO HAVE HIS MOTION DETERMINED IN THE TRIAL COURT BECAUSE
OF HIS INABILITY TO BE PRESENT AT THE HEARING, 'OR FOR OTHER REASONS,'
THEN HE HAS THE RIGHT TO MAKE APPLICATION TO THE COURT IN THE DISTRICT
WHERE HE IS CONFINED.  SUCH AN INSTANCE MIGHT OCCUR WHERE A DANGEROUS
PRISONER, WHO HAD BEEN CONVICTED IN THE SOUTHERN DISTRICT OF NEW YORK,
WAS CONFINED IN ALCATRAZ PENITENTIARY.  THE BILL EXPRESSLY PROVIDES
THAT NO CIRCUIT OR DISTRICT JUDGE OF THE UNITED STATES SHALL ENTERTAIN
AN APPLICATION FOR A WRIT IN BEHALF OF ANY PRISONER UNLESS IT APPEARS
THAT HIS RIGHT TO DISCHARGE CANNOT BE DETERMINED BY MOTION MADE IN THE
TRIAL COURT." 

AS SUBMITTED TO CONGRESS, SECTION 2 OF THE JURISDICTIONAL BILL
PROVIDED: 

"NO CIRCUIT OR DISTRICT JUDGE OF THE UNITED STATES SHALL ENTERTAIN AN
APPLICATION FOR WRIT OF HABEAS CORPUS IN BEHALF OF ANY PRISONER WHO IS
AUTHORIZED TO APPLY FOR RELIEF BY MOTION PURSUANT TO THE PROVISIONS OF
THIS SECTION, UNLESS IT APPEARS THAT IT HAS NOT BEEN OR WILL NOT BE
PRACTICABLE TO DETERMINE HIS RIGHTS TO DISCHARGE FROM CUSTODY ON SUCH A
MOTION BECAUSE OF HIS INABILITY TO BE PRESENT AT THE HEARING ON SUCH A
MOTION, OR FOR OTHER REASONS.  WHERE THE PRISONER HAS SOUGHT RELIEF ON
SUCH A MOTION, IF THE CIRCUIT OR DISTRICT JUDGE CONCLUDES THAT IT HAS
NOT BEEN PRACTICABLE TO DETERMINE THE PRISONER'S RIGHTS ON SUCH MOTION,
THE FINDINGS, ORDER, OR JUDGMENT ON THE MOTION SHALL NOT BE ASSERTED AS
A DEFENSE TO THE PRISONER'S APPLICATION FOR RELIEF ON HABEAS CORPUS." 

H.R. 4232 AND S. 1452, 79TH CONG., 1ST SESS. (PROCEDURAL BILL); H.R.
4233 AND S. 1451, 79TH CONG., 1ST SESS. (JURISDICTIONAL BILL) WERE
INTRODUCED IN 1945, BUT NO ACTION WAS TAKEN BY CONGRESS. 

H.R. 6723, 79TH CONG., 2D SESS., INTRODUCED AS A SUBSTITUTE FOR THE
JURISDICTIONAL BILL, WOULD HAVE PLACED A TIME LIMIT WITHIN WHICH MOTION
TO VACATE SENTENCES COULD BE FILED BY FEDERAL PRISONERS.  THE
SUBSTITUTE BILL WAS CONSIDERED BY THE JUDICIAL CONFERENCE, AND ORDERED
CIRCULATED AMONG THE FEDERAL JUDGES.  REPORT OF THE JUDICIAL CONFERENCE
(1946) 21.  NO ACTION WAS TAKEN BY CONGRESS ON THIS SUBSTITUTE BILL. 

FN24  THIS STATISTICAL DATA IS SUMMARIZED IN NOTE 13, SUPRA. 

FN25  THE STATEMENT, PREPARED BY CIRCUIT JUDGE STONE AND APPROVED BY
CHIEF JUSTICE STONE, DESCRIBED THE PRACTICAL CONSIDERATIONS AS
FOLLOWS: 

"MOST HABEAS CORPUS CASES RAISE FACT ISSUES INVOLVING THE TRIAL
OCCURRENCES OR THE ALLEGED ACTIONS OF JUDGES, UNITED STATES ATTORNEYS,
MARSHALS OR OTHER COURT OFFICIALS.  OBVIOUSLY, IT INVOLVES INTERRUPTION
OF JUDICIAL DUTIES IF THE TRIAL JUDGE, THE UNITED STATES ATTORNEY, THE
COURT CLERK OR THE MARSHAL (ONE OR ALL OF THEM) ARE REQUIRED TO ATTEND
THE HABEAS CORPUS HEARING AS WITNESSES.  SUCH ATTENDANCE IS SOMETIMES
NECESSARY TO REFUTE PARTICULAR TESTIMONY WHICH THE PRISONER MAY GIVE
AND, OBVIOUSLY, SUCH ATTENDANCE IS THE SAFEST COURSE.  THIS IS SO
BECAUSE EXPERIENCE HAS DEMONSTRATED THAT OFTEN PETITIONER WILL TESTIFY
TO ANYTHING HE MAY THINK USEFUL, HOWEVER FALSE; AND, WITHOUT THE
WITNESSES PRESENT TO REFUTE SUCH, HE IS ENCOURAGED TO DO SO AND MAY
MAKE OUT A CASE FOR DISCHARGE FROM MERITED PUNISHMENT.  SOME
REALIZATION OF THE POSSIBLE EXTENT OF THIS BURDEN ON COURT OFFICIALS
MAY BE GAINED FROM THE BARE STATEMENT THAT, WHILE CONVICTIONS OCCUR IN
ALL OF THE DISTRICTS THROUGHOUT THE COUNTRY, FEDERAL PRISONERS ARE
CONFINED IN A VERY SMALL NUMBER OF PENAL INSTITUTIONS; AND HABEAS
CORPUS MUST NOW BE BROUGHT IN THE DISTRICT WHERE THE PETITIONER IS
CONFINED.  EVEN IF THE TESTIMONY OF THESE OFFICIALS IS TAKEN BY
DEPOSITION, THE INTERFERENCE AND INTERRUPTION IS MERELY LESSENED IN
DEGREE AND THE ABOVE DANGER IS RISKED. 

"THE MAIN DISADVANTAGES OF THE MOTION REMEDY ARE AS FOLLOWS:  THE
RISK DURING OR THE EXPENSE OF TRANSPORTING THE PRISONER TO THE DISTRICT
WHERE HE WAS CONVICTED; AND THE INCENTIVE TO FILE BASELESS MOTIONS IN
ORDER TO HAVE A 'JOY RIDE' AWAY FROM THE PRISON AT GOVERNMENT EXPENSE. 

"BALANCING THESE, AS WELL AS LESS IMPORTANT, CONSIDERATIONS, THE
CONFERENCE IS OF OPINION THAT THE ADVANTAGES OUTWEIGH AND THAT THE
MOTION REMEDY IS PREFERABLE.  AS TO THE RISK (ESCAPE OR DELIVERY) WHILE
TRANSPORTING THE PRISONER TO THE DISTRICT OF CONVICTION, THE DIFFERENCE
IS ONLY ONE OF DEGREE - OF DISTANCE AND, THEREFORE, OF OPPORTUNITY.  AS
TO THE EXPENSE, IT IS HIGHLY PROBABLE THAT IT WOULD BE MORE EXPENSIVE
FOR THE GOVERNMENT WITNESSES TO GO FROM THE DISTRICT WHERE SENTENCE WAS
IMPOSED AND RETURN THAN FOR THE PRISONER TO BE BROUGHT TO SUCH DISTRICT
AND RETURNED.  AS TO THE INCENTIVE TO FILE PETITIONS, THE DIFFERENCE IS
BETWEEN A LONGER AND A SHORTER TRIP TO THE COURT.  IT IS THOUGHT THAT
THE PROVISION IN SECTION 2 PROVIDING FOR HABEAS CORPUS (IN THE DISTRICT
OF CONFINEMENT) WHERE IT IS NOT 'PRACTICABLE TO DETERMINE HIS RIGHTS
...  ON SUCH A MOTION' WILL FURNISH A SUFFICIENT DISCRETION IN THE
JUDGE OR COURT BEFORE WHOM HABEAS CORPUS IS FILED TO EVALUATE AND
DEFEAT THE ABOVE 'DISADVANTAGES' TO A LARGE DEGREE."  P. 8. 

FN26  H.R. REP. NO. 2646, 79TH CONG., 2D SESS. (1946) 7. 

FN27  H.R. REP. NO. 2646, 79TH CONG., 2D SESS. (1946) A172; H.R. REP.
NO. 308, 80TH CONG., 1ST SESS. (1947) A180. 

FN28  REPORT OF THE JUDICIAL CONFERENCE (1947) 17-18.  SEE S. REP.
NO. 1559, 80TH CONG., 2D SESS. (1948) 8-10. 

FN29  PARKER, LIMITING THE ABUSE OF HABEAS CORPUS, 8 F.R.D. 171, 175
(1948).  JUDGE PARKER SERVED AS CHAIRMAN OF THE JUDICIAL CONFERENCE
COMMITTEE ON HABEAS CORPUS PROCEDURE. 

FN30  SEE MORGAN V. UNITED STATES, 298 U.S. 468, 480 (1936). 

FN31  SNYDER V. MASSACHUSETTS, 291 U.S. 97, 116 (1934). 

FN32  28 U.S.C. SEC. 452 (NOW 28 U.S.C. (SUPP. IV) SEC. 2241). 

FN33  28 U.S.C. (SUPP. IV) SEC. 1651(A). 

FN34  SEE ADAMS V. UNITED STATES EX REL. MCCANN, 317 U.S. 269, 272
273 (1942). 

FN35  IN DETERMINING WHAT AUXILIARY WRITS ARE "AGREEABLE TO THE
USAGES AND PRINCIPLES OF LAW," WE LOOK FIRST TO THE COMMON LAW.  SEE
PRICE V. JOHNSTON, 334 U.S. 266, 281 (1948).  IN ADDITION TO "THE GREAT
AND EFFICACIOUS WRIT," HABEAS CORPUS AND SUBJICIENDUM, OTHER VARIETIES
OF THE WRIT WERE KNOWN TO THE COMMON LAW.  BLACKSTONE DESCRIBED THE
WRITS OF HABEAS CORPUS "AD PROSEQUENDUM, TESTIFICANDUM, DELIBERANDUM,
ETC.; WHICH ISSUE WHEN IT IS NECESSARY TO REMOVE A PRISONER, IN ORDER
TO PROSECUTE OR BEAR TESTIMONY IN ANY COURT, OR TO BE TRIED IN THE
PROPER JURISDICTION WHEREIN THE FACT WAS COMMITTED."  3 BLACKSTONE'S
COMMENTARIES 129-130.  SEE EX PARTE BOLLMAN, 4 CRANCH 75, 97-98
(1807). 

FN36  IT IS ARGUED THAT THE REFERENCE TO THE COMMON LAW WRIT OF ERROR
CORAM NOBIS IN THE REVISER'S NOTE ON SECTION 2255 SHOWS AN INTENTION TO
ADOPT AN EX PARTE INVESTIGATION IN LIEU OF A HEARING IN THE USUAL
SENSE.  CONGRESS DID NOT ADOPT THE CORAM NOBIS PROCEDURE AS IT EXISTED
AT COMMON LAW, THE REVISER'S NOTE MERELY STATING THAT THE SECTION 2255
MOTION WAS "IN THE NATURE OF" THE CORAM NOBIS WRIT IN THE SENSE THAT A
BROUGHT IN THE COURT THAT ENTERED JUDGMENT.  NOTE 27, SUPRA.  FURTHER,
IT BY NO MEANS FOLLOWS THAT AN ISSUE OF FACT COULD BE DETERMINED IN A
CORAM NOBIS PROCEEDING WITHOUT THE PRESENCE OF THE PRISONER, THE NEW
YORK COURT OF APPEALS RECENTLY HOLDING THAT HIS PRESENCE WAS REQUIRED
UNDER THE COMMON LAW.  PEOPLE V. RICHETTI, 302 N.Y. 290, 297-298, 97
N.E.2D 908, 911-912 (1951). 

FN37  AMONG THE REPORTED CASES ARE:  UNITED STATES V. PARKER, 91 F.
SUPP. 996 (M.D.N.C.  1950), AFF'D, 184 F.2D 488 (C.A. 4TH CIR. 1950);
JONES V. UNITED STATES, 179 F.2D 303 (C.A. 4TH CIR. 1950); STURGEON V.
UNITED STATES, 187 F.2D 9 (C.A. 5TH CIR. 1951); FOSTER V. UNITED
STATES, 184 F.2D 571 (C.A. 5TH CIR. 1950); WOOLARD V. UNITED STATES, 83
F. SUPP. 521 (N.D. ALA. 1949), AFF'D, 178 F.2D 84 (C.A. 5TH CIR. 1949);
UNITED STATES V. JONES, 177 F.2D 476 (C.A. 7TH CIR. 1949); CHERRIE V.
UNITED STATES, 179 F.2D 94 (C.A. 10TH CIR. 1949)(REV'D FOR HEARING), 90
F. SUPP. 261 (D. WYO. 1950), AFF'D, 184 F.2D 384 (C.A. 10TH CIR. 1950);
HURST V. UNITED STATES, 180 F.2D 835 (C.A. 10TH CIR. 1950); MOSS V.
UNITED STATES, 177 F.2D 438 (C.A. 10TH CIR. 1949); DOLL V. UNITED
STATES, 175 F.2D 884 (C.A. 10TH CIR. 1949); PAYNE V. UNITED STATES, 85
F. SUPP. 4040 (M.D. PA. 1949); UNITED STATES V. BOWEN, 94 F. SUPP. 1006
(N.D. GA. 1951); UNITED STATES V. KRATZ, 97 F. SUPP. 999 (D. NEBR. 
1951). 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT HAS ORDERED IN A SECTION
2255 PROCEEDING THAT A "HEARING" BE HELD IN OPEN COURT WITH THE
PRISONER PRESENT AND FREE TO TESTIFY.  UNITED STATES V. PAGLIA, 190
F.2D 445, 448 (1951). 

FN38  WALKER V. JOHNSTON, SUPRA, AT 284.  ACCORDING TO THE REVISER'S
NOTE, 28 U.S.C. (SUPP. IV) SEC. 2243, GOVERNING THE REQUIREMENTS FOR
PRESENCE OF A PRISONER IN HABEAS CORPUS ACTIONS, WAS DRAFTED TO CONFORM
WITH THE PRACTICE DESCRIBED IN THE WALKER CASE. 

FN39  SEE BARRETT V. HUNTER, 180 F.2D 510, 514 (C.A. 10TH CIR.
1950). 

FN40  IF SECTION 2255 HAD NOT EXPRESSLY REQUIRED THAT THE
EXTRAORDINARY REMEDY OF HABEAS CORPUS BE WITHHELD PENDING RESORT TO
ESTABLISHED PROCEDURES PROVIDING THE SAME RELIEF, THE SAME RESULT WOULD
HAVE FOLLOWED UNDER OUR DECISIONS.  STACK V. BOYLE, 342 U.S. 1, 6-7
(1951); JOHNSON V. HOY, 227 U.S. 245 (1913); EX PARTE ROYALL, 117 U.S.
241 (1886). 

FN41  ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE CO., 329 U.S. 129 (1946);
ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 347
(1936)(BRANDEIS, J., CONCURRING). 

FN42  RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 568-569 (1947);
ASHWANDER V. TENNESSEE VALLEY AUTHORITY, NOTE 41, SUPRA, AT 346-347,
AND CASES CITED THEREIN. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










UNITED STATES V. SMITH 342 U.S. 225 


NO. 20.  ARGUED DECEMBER 4, 1951 - DECIDED JANUARY 7, 1952 - AFFIRMED. 


THE WARTIME SUSPENSION OF LIMITATIONS ACT OF 1942, AS AMENDED, WHICH
PROVIDED THAT THE "RUNNING" OF THE STATUTE OF LIMITATIONS ON FRAUDS
AGAINST THE UNITED STATES "SHALL BE SUSPENDED UNTIL THREE YEARS AFTER
THE TERMINATION OF HOSTILITIES," IS INAPPLICABLE TO CRIMES COMMITTED
AFTER DECEMBER 31, 1946, WHEN HOSTILITIES WERE DECLARED TERMINATED BY
PRESIDENTIAL PROCLAMATION.  PP. 225-230. 

UNITED STATES V. SMITH. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS.* 

*TOGETHER WITH NO. 162, UNITED STATES V. DAILEY, ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. 

IN EACH OF THESE CASES, AN INDICTMENT OF THE APPELLEE WAS DISMISSED
BY THE DISTRICT COURT AS BARRED BY LIMITATIONS.  ON DIRECT APPEALS BY
THE UNITED STATES TO THIS COURT, AFFIRMED, P. 230. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLEE SMITH (NO. 20) WAS INDICTED OCTOBER 2, 1950, FOR HAVING ON
OR ABOUT JULY 1, 1947, FORGED THE NAME OF THE PAYEE ON A CHECK DRAWN ON
THE TREASURER OF THE UNITED STATES. 

APPELLEE DAILEY (NO. 162) WAS INDICTED SEPTEMBER 29, 1950, FOR HAVING
ON OR ABOUT MARCH 14, 1947, KNOWINGLY MADE A FALSE STATEMENT IN
CONNECTION WITH HIS APPLICATION FOR FARMERS HOME ADMINISTRATION
SERVICES. 

IN EACH CASE THE CRIME CHARGED WAS COMMITTED MORE THAN THREE YEARS
BEFORE THE INDICTMENT WAS RETURNED AND THEREFORE WOULD BE BARRED BY THE
THREE-YEAR STATUTE OF LIMITATIONS (18 U.S.C. SEC. 3282), UNLESS THAT
STATUTE HAS BEEN TOLLED.  THE PROSECUTION ARGUED THAT IT WAS TOLLED BY
THE WARTIME SUSPENSION OF LIMITATIONS ACT OF 1942, AS AMENDED, 18
U.S.C.  (1946 ED.)  SEC.  590A.  THE DISTRICT COURT IN EACH CASE
DISAGREED WITH THE PROSECUTION AND DISMISSED THE INDICTMENT.  THE CASES
ARE HERE ON APPEAL.  18 U.S.C. SEC. 3731. 

THE ACT DERIVES FROM THE ACT OF AUGUST 24, 1942, WHICH SUSPENDED THE
RUNNING OF THE STATUTE OF LIMITATIONS APPLICABLE TO OFFENSES INVOLVING
FRAUDS AGAINST THE UNITED STATES UNTIL JUNE 30, 1945, OR UNTIL SUCH
EARLIER TIME AS THE CONGRESS BY CONCURRENT RESOLUTION, OR THE
PRESIDENT, MAY DESIGNATE.  56 STAT. 747.  THAT ACT WAS AMENDED BY THE
CONTRACT SETTLEMENT ACT OF 1944, 58 STAT. 649, 667, TO PROVIDE AMONG
OTHER THINGS THAT THE TERM OF SUSPENSION OF THE STATUTE OF LIMITATIONS
WAS "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."  OFFENSES IN CONNECTION WITH
THE NEGOTIATION, AWARD, TERMINATION, OR SETTLEMENT OF CONTRACTS WERE
INCLUDED BY THAT ACT.  AND OFFENSES IN CONNECTION WITH THE CARE,
HANDLING, AND DISPOSAL OF PROPERTY WERE ADDED BY THE SURPLUS PROPERTY
ACT OF 1944.  58 STAT. 765, 781.  AT THE TIME OF THE ALLEGED OFFENSES
THE ACT READ IN RELEVANT PART:  (FN1) 

"THE RUNNING OF ANY EXISTING STATUTE OF LIMITATIONS APPLICABLE TO ANY
OFFENSE AGAINST THE LAWS OF THE UNITED STATES (1) INVOLVING DEFRAUDING
OR ATTEMPTS TO DEFRAUD THE UNITED STATES OR ANY AGENCY THEREOF WHETHER
BY CONSPIRACY OR NOT, AND IN ANY MANNER,  ...  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." 

THE HOSTILITIES OF WORLD WAR II WERE DECLARED TERMINATED DECEMBER 31,
1946, BY PRESIDENTIAL PROCLAMATION NO. 2714, 61 STAT. (PT. 2) 1048
1049; 12 FED. REG. 1.  IT IS THEREFORE CLEAR THAT IF THE DESIGNATED
OFFENSES WERE COMMITTED WITHIN THE THREE-YEAR PERIOD PRIOR TO THE DATE
OF THE ACT OR BETWEEN THE DATE OF THE ACT AND DECEMBER 31, 1946, THE
STATUTE OF LIMITATIONS WOULD BE SUSPENDED.  THE QUESTION IS WHETHER THE
ACT IS LIKEWISE APPLICABLE TO OFFENSES COMMITTED AFTER DECEMBER 31,
1946, THE DATE OF THE PROCLAMATION OF TERMINATION OF HOSTILITIES. 

THE ARGUMENT OF THE PROSECUTION IS THAT THE LANGUAGE OF THE ACT MAKES
NO DISTINCTION BETWEEN OFFENSES COMMITTED BEFORE AND OFFENSES COMMITTED
AFTER THE TERMINATION OF HOSTILITIES, THE EMPHASIS OF THE ACT BEING ON
THE SUSPENSION OF THE "RUNNING" OF THE STATUTES OF LIMITATIONS.  IT IS
CONTENDED THAT THE EXTENSION OF THE ACT TO OFFENSES PRESCRIBED BY THE
CONTRACT SETTLEMENT ACT AND THE SURPLUS PROPERTY ACT - OFFENSES OF THE
TYPE LIKELY TO BE COMMITTED DURING THE POST-HOSTILITIES PERIOD - IS
PERSUASIVE INDICATION THAT CONGRESS MADE THE ACT OPERATIVE AFTER, AS
WELL AS BEFORE, THE TERMINATION OF HOSTILITIES. 

WE TAKE THE CONTRARY VIEW.  WE CONCLUDE THAT THE SUSPENSION ACT IS
INAPPLICABLE TO CRIMES COMMITTED AFTER THE DATE OF TERMINATION OF
HOSTILITIES.  THE WORDS OF THE ACT ARE THAT THE "RUNNING" OF THE
STATUTE OF LIMITATIONS "SHALL BE SUSPENDED UNTIL THREE YEARS AFTER THE
TERMINATION OF HOSTILITIES."  THE CONNOTATION IS THAT OFFENSES OCCURING
PRIOR TO THE TERMINATION OF HOSTILITIES SHALL NOT BE ALLOWED LEGALLY TO
BE FORGOTTEN IN THE RUSH OF WAR ACTIVITIES.  THAT IS THE GIST OF THE
REPORTS.  (FN2)  THE FEAR WAS THAT THE LAW-ENFORCEMENT OFFICERS WOULD
BE SO PREOCCUPIED WITH PROSECUTION OF THE WAR EFFORT THAT THE CRIMES OF
FRAUD PERPETRATED AGAINST THE UNITED STATES WOULD BE FORGOTTEN UNTIL IT
WAS TOO LATE.  THE IMPLICIT PREMISE OF THE LEGISLATION IS THAT THE
FRENZIED ACTIVITIES, EXISTING AT THE TIME THE ACT BECAME LAW, WOULD
CONTINUE UNTIL HOSTILITIES TERMINATED AND THAT UNTIL THEN THE PUBLIC
INTEREST SHOULD NOT BE DISADVANTAGED.  THE PROSECUTION WOULD HAVE US
CHANGE THE FUNCTION OF THE DATE OF TERMINATION OF HOSTILITIES.  IT
WOULD BE USED TO PROVIDE VARIOUS PERIODS OF SUSPENSION FOR CRIMES
COMMITTED WITHIN THE THREE-YEAR PERIOD COMMENCING WITH THE TERMINATION
OF HOSTILITIES.  THAT SEEMS TO US TO BE AN ALTERATION IN THE STATUTORY
SCHEME, ONE THAT DESTROYS ITS SYMMETRY.  SINCE UNDER OUR CONSTRUCTION
THE THREE-YEAR PERIOD PRESCRIBED BY THE SUSPENSION ACT STARTS TO RUN AT
THE DATE OF TERMINATION OF HOSTILITIES, ALL CRIMES TO WHICH THE ACT IS
APPLICABLE ARE TREATED UNIFORMLY.  THE TIME WHEN LAW-ENFORCEMENT
OFFICERS WERE BUSY WITH WAR ACTIVITIES IS NOT COUNTED; WHEN THE
PRESSURE WAS OFF, THE TIME BEGAN TO RUN AGAIN.  NO REASONS OF POLICY
ARE SUGGESTED FOR STRAINING THE LANGUAGE OF THE ACT TO SUSPEND THE
RUNNING OF THE STATUTE BEYOND THE EMERGENCY WHICH MADE THE SUSPENSION
SEEM ADVISABLE.  AFFIRMED. 

FN1  THE ACT OF JUNE 25, 1948, 62 STAT. 683, WHICH REVISED THE
CRIMINAL CODE, REPEALED THE SUSPENSION ACT (ID., 862, 868) AND, WITH A
FEW CHANGES IN WORDING, REENACTED IT.  ID., 828, 18 U.S.C. SEC. 3287. 
THE REPEALED SECTIONS.  WE ASSUME, WITHOUT DECIDING, THAT THIS
RESERVATION HAS NO EFFECT ON THE RUNNING OF A STATUTE OF LIMITATIONS. 
SEE UNITED STATES V. OBERMEIER, 186 F.2D 243, 251.  THE REVISER ADDED
AT THE BEGINNING OF THE SECTION A NEW CLAUSE READING "WHEN THE UNITED
STATES IS AT WAR" TO MAKE THE SECTION "PERMANENT INSTEAD OF TEMPORARY
LEGISLATION, AND TO OBVIATE THE NECESSITY OF REENACTING SUCH
LEGISLATION IN THE FUTURE."  SEE REVISER'S NOTE FOLLOWING 18 U.S.C.
(SUPP. II) SEC. 3287. 

FN2  S. REP. NO. 1544, 77TH CONG., 2D SESS., PP. 1-2: 

"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 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. 

"YOUR COMMITTEE IS OF THE OPINION THAT ACTION SHOULD BE TAKEN AT THIS
TIME TO EXTEND THE LIMITATIONS STATUTE SO THAT FRAUDS MAY BE DISCOVERED
AND PUNISHED EVEN AFTER THE TERMINATION OF THE PRESENT CONFLICT, AND TO
INSURE THAT THE LIMITATIONS STATUTE WILL NOT OPERATE, UNDER STRESS OF
THE PRESENT-DAY EVENTS, FOR THE PROTECTION OF THOSE WHO WOULD DEFRAUD
OR ATTEMPT TO DEFRAUD THE UNITED STATES." 

THE HISTORY OF THE 1944 AMENDMENT SUPPORTS THE SAME VIEW.  S. REP.
NO. 1057, 78TH CONG., 2D SESS., P. 14, STATES: 

"AS WAS PROVIDED IN THE CONTRACT SETTLEMENT ACT OF 1944, THE STATUE
OF LIMITATIONS WITH RESPECT TO OFFENSE AGAINST THE LAWS OF THE UNITED
STATES ARISING IN CONNECTION WITH ACTIVITIES UNDER THIS ACT WAS
SUSPENDED UNTIL 3 YEARS AFTER TERMINATION OF HOSTILITIES IN THE PRESENT
WAR.  THIS PROVISION HAS BEEN NECESSITATED BY THE MAGNITUDE OF THE
OPERATIONS INVOLVED UNDER THIS ACT, AND THE INTENSIVE PREOCCUPATION OF
BOTH PARTICIPANTS AND WITNESSES WITH THE WAR EFFORT.  IT IS CLEAR THAT
THE BULK OF THE OFFENSES COGNIZABLE UNDER THIS STATUTE WILL NOT BE
APPREHENDED OR INVESTIGATED UNTIL THE END OF THE WAR AND WILL THEN
REQUIRE CONSIDERABLE TIME BEFORE THEY ADVANCE TO THE STAGE OF
LITIGATION." 

MR. JUSTICE CLARK, CONCURRING. 

I JOIN IN THE OPINION AND JUDGMENT OF THE COURT.  SOON AFTER THE
BEGINNING OF WORLD WAR II, CONGRESS REALIZED THAT IT WOULD BE
IMPOSSIBLE FOR THE DEPARTMENT OF JUSTICE CURRENTLY TO INVESTIGATE AND
PROSECUTE THE LARGE NUMBER OF OFFENSES ARISING OUT OF THE WAR EFFORT. 
THEREFORE CONGRESS SUSPENDED THE RUNNING OF THE STATUTE OF LIMITATIONS
AS TO FRAUDS AGAINST THE GOVERNMENT, FIRST UNTIL JUNE 30, 1945, AND
SUBSEQUENTLY UNTIL THREE YEARS AFTER THE TERMINATION OF HOSTILITIES. 
IT IS CLEAR THAT CONGRESS INTENDED TO GIVE THE DEPARTMENT MORE TIME TO
APPREHEND, INVESTIGATE, AND PROSECUTE OFFENSES OCCURRING "UNDER THE
STRESS OF PRESENT-DAY EVENTS" OF THE WAR "EVEN AFTER THE TERMINATION OF
THE PRESENT CONFLICT."  H.R. REP. NO. 2051, 77TH CONG., 2D SESS. 2; S.
REP. NO. 1544, 77TH CONG., 2D SESS. 2; SEE UNITED STATES V. GOTTFRIED,
165 F.2D 360 (1948).  V-E DAY WAS MAY 8, 1945, AND V-J DAY WAS
SEPTEMBER 2, 1945.  IMMEDIATELY AFTER V-J DAY ALL WAR PROCUREMENT
STOPPED, CONTRACTS WERE CANCELED, AND RENEGOTIATION WAS SPEEDED UP.
THE PRESIDENT DID NOT PROCLAIM THE CESSATION OF HOSTILITIES UNTIL
DECEMBER 31, 1946, SIXTEEN MONTHS AFTER THE FIGHTING CEASED.  DURING
THIS PERIOD, THE PRESSING PROBLEMS OF DEMOBILIZATION AND RECONVERSION -
PROBLEMS LIKELY TO CAUSE THE CONTINUED PERPETRATION OF FRAUDS ON THE
GOVERNMENT - WERE FOR THE MOST PART BROUGHT TO AN END. 

THE PRESENT CASES HAD NOTHING TO DO WITH THE WAR OR THE RECONVERSION
THEREAFTER, SMITH BEING CHARGED WITH FORGERY OF A GOVERNMENT CHECK FOR
$90 DATED JUNE 30, 1947, AND DAILEY BEING INDICTED FOR HAVING MADE A
FALSE STATEMENT ON MARCH 14, 1947, TO THE DEPARTMENT OF AGRICULTURE AS
TO VALUE OF HIS FARM, COWS, POULTRY, ETC., IN CONNECTION WITH AN
APPLICATION FOR THE SERVICES OF THE FARMERS HOME ADMINISTRATION.  BOTH
OF THE OFFENSES OCCURRED LONG AFTER THE FIGHTING WAR WAS OVER AND AFTER
"THE INTENSIVE PREOCCUPATION OF BOTH PARTICIPANTS AND WITNESSES WITH
THE WAR EFFORT"* HAD CEASED, IF EVER THOSE PERSONS WERE SO EMPLOYED. 

*S. REP. NO. 1057, 78TH CONG., 2D SESS. 14. 

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. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE REED, MR. JUSTICE JACKSON
AND MR. JUSTICE BURTON JOIN, DISSENTING. 

AS I READ THE STATUTE, CONGRESS INTENDED THE STATUTE OF LIMITATIONS
TO BE SUSPENDED UNTIL THREE YEARS AFTER THE TERMINATION OF HOSTILITIES,
WHICH WOULD BE DECEMBER 31, 1949.  UNTIL THAT TIME, THERE WAS TO BE NO
STATUTE OF LIMITATIONS.  ON THAT DATE THE SUSPENSION WAS LIFTED, AND
THE STATUTE BEGAN TO RUN AGAIN.  THE COURT'S CONSTRUCTION THAT THE
SUSPENSION WAS LIFTED AT THE TERMINATION OF HOSTILITIES GIVES NO EFFECT
TO THE THREE-YEAR PERIOD.  I WOULD REVERSE THE JUDGMENTS IN THESE
CASES. 
..END :














CARSON V. ROANE-ANDERSON COMPANY 342 U.S. 232 


NO. 186.  ARGUED DECEMBER 5, 1951 - DECIDED JANUARY 7, 1952 - 192 TENN.
150, 239 S.W.2D 27, AFFIRMED. 


1.  THE TENNESSEE RETAILERS' SALES TAX ACT IMPOSES A SALES TAX ON THE
SALE OF GOODS WITHIN THE STATE AND A USE TAX ON THE USE WITHIN THE
STATE OF GOODS PURCHASED ELSEWHERE.  RESPONDENTS ARE PRIVATE COMPANIES
WHO ARE CONTRACTORS FOR THE ATOMIC ENERGY COMMISSION AND VENDORS OF
THOSE CONTRACTORS WHO PAID UNDER PROTEST SALES TAXES AND USE TAXES
IMPOSED UNDER THE ACT ON ARTICLES USED IN THE PERFORMANCE OF CONTRACTS
WITH THE COMMISSION.  HELD:  THE CHALLENGED TAXES ARE PROHIBITED BY
SEC. 9(B) OF THE ATOMIC ENERGY ACT OF 1946.  PP. 233-236. 

2.  THE CONTRACTS WHICH THE RESPONDENTS HAVE WITH THE UNITED STATES,
AND THE PERFORMANCE THEREUNDER, ARE COMMISSION "ACTIVITIES" WHICH SEC.
9(B) EXEMPTS FROM STATE TAXATION.  PP. 234-236. 

CARSON, COMMISSIONER OF FINANCE & TAXATION, V. ROANE-ANDERSON COMPANY ET
AL. 

CERTIORARI TO THE SUPREME COURT OF TENNESSEE.* 

*TOGETHER WITH NO. 187, CARSON, COMMISSIONER OF FINANCE & TAXATION,
V. CARBIDE & CARBON CHEMICALS CORP. ET AL., ALSO ON CERTIORARI TO THE
SAME COURT. 

IN SUITS BROUGHT BY RESPONDENTS TO RECOVER AMOUNTS PAID AS STATE
SALES AND USE TAXES AND TO ENJOIN FUTURE COLLECTIONS, THE STATE SUPREME
COURT HELD THAT THE CHALLENGED TAXES WERE PROHIBITED BY SEC. 9(B) OF
THE ATOMIC ENERGY ACT OF 1946.  192 TENN. 150, 239 S.W.2D 27.  THIS
COURT GRANTED CERTIORARI.  342 U.S. 847.  AFFIRMED, P. 236. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE RETAILERS' SALES TAX ACT OF TENNESSEE, TENN. ACTS 1947, C. 3,
IMPOSES A SALES TAX ON THE SALE OF GOODS IN TENNESSEE AND A USE TAX ON
THE USE WITHIN THE STATE OF GOODS PURCHASED ELSEWHERE.  TENNESSEE
COLLECTED THESE TAXES FROM RESPONDENTS WHO PAID THEM UNDER PROTEST AND
THEN BROUGHT THESE SUITS TO RECOVER THEM AND TO ENJOIN FUTURE
COLLECTIONS.  TWO OF THE RESPONDENTS ARE PRIVATE COMPANIES WHO ARE
CONTRACTORS FOR THE ATOMIC ENERGY COMMISSION AND WHO PAID USE TAXES;
TWO ARE MERCHANTS WHO PAID SALES TAXES ON SALES TO THOSE CONTRACTORS
AND WHO PASSED THE TAXES ON TO THEM.  THE USE TAXES AND THE SALES TAXES
WERE ON ARTICLES USED BY THE CONTRACTORS IN THE PERFORMANCE OF THEIR
CONTRACTS WITH THE COMMISSION. 

THE TENNESSEE SUPREME COURT HELD BY A DIVIDED VOTE (192 TENN. 150,
239 S.W.2D 27) THAT THE CHALLENGED TAXES, THOUGH NOT FORBIDDEN BY THE
CONSTITUTION, WERE PROHIBITED BY SEC. 9(B) OF THE ATOMIC ENERGY ACT OF
1946, 60 STAT. 765, 42 U.S.C. SEC. 1809(B).  THE CASES ARE HERE ON
CERTIORARI.  342 U.S. 847. 

SEC. 9(B) PROVIDES IN PART THAT "THE COMMISSION, AND THE PROPERTY,
ACTIVITES, AND INCOME OF THE COMMISSION, ARE HEREBY EXPRESSLY EXEMPTED
FROM TAXATION IN ANY MANNER OR FORM BY ANY STATE, COUNTY, MUNICIPALITY,
OR ANY SUBDIVISION THEREOF."  THE CONSTITUTIONAL POWER OF CONGRESS TO
PROTECT ANY OF ITS AGENCIES FROM STATE TAXATION (PITTMAN V. HOME
OWNERS' CORPORATION, 308 U.S. 21; FEDERAL LAND BANK V. BISMARCK CO.,
314 U.S. 95) HAS LONG BEEN RECOGNIZED AS APPLYING TO THOSE WITH WHOM IT
HAS MADE AUTHORIZED CONTRACTS.  SEE THOMSON V. PACIFIC R. CO., 9 WALL. 
579, 588-589; JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 160-161. 
CERTAINLY THE POLICY BEHIND THE POWER OF CONGRESS TO CREATE TAX
IMMUNITIES DOES NOT TURN ON THE NATURE OF THE AGENCY DOING THE WORK OF
THE GOVERNMENT.  THE POWER STEMS FROM THE POWER TO PRESERVE AND PROTECT
FUNCTIONS VALIDLY AUTHORIZED (PITTMAN V. HOME OWNERS' CORP., SUPRA, P.
33) - THE POWER TO MAKE ALL LAWS NECESSARY AND PROPER FOR CARRYING INTO
EXECUTION THE POWERS VESTED IN THE CONGRESS.  U.S. CONST., ART. I, SEC.
8, CL. 18.  HENCE IF THE PRESENT CONTRACTS WHICH THE RESPONDENT
CONTRACTORS HAVE WITH THE UNITED STATES, AND THE PERFORMANCE
THEREUNDER, ARE "ACTIVITIES" WITHIN THE MEANING OF SEC. 9(B) OF THE
ACT, THE IMMUNITY IS CLEAR.  OUR VIEW IS THAT THEY ARE AND THAT THE
JUDGMENTS BELOW MUST BE AFFIRMED. 

RESPONDENT ROANE-ANDERSON MANAGES THE GOVERNMENT-OWNED TOWN OF OAK
RIDGE, TENNESSEE; CARBIDE AND CARBON CHEMICALS OPERATES THE OAK RIDGE
PLANTS FOR THE PRODUCTION OF FISSIONABLE MATERIALS.  THEIR CONTRACTS
ANTEDATE THE ATOMIC ENERGY ACT OF 1946, HAVING BEEN ORIGINALLY ENTERED
INTO WITH THE MANHATTAN DISTRICT OF THE CORPS OF ENGINEERS.  PURSUANT
TO SEC. 9(A) OF THE ACT THESE CONTRACTS WERE TRANSFERRED BY EXECUTIVE
ORDER (FN1) TO THE COMMISSION.  THE QUESTION WHETHER THE COMMISSION
SHOULD BE EMPOWERED TO EMPLOY PRIVATE CONTRACTORS IN PERFORMANCE OF ITS
FUNCTIONS OR WHETHER THE COMMISSION SHOULD ITSELF BE THE ENTREPRENEUR
WAS AN ISSUE OF NATIONAL POLICY MUCH DISCUSSED AND DEBATED AT THE TIME
THE LEGISLATION WAS BEFORE THE CONGRESS.  ONE MEASURE, WHICH HAD THE
BACKING OF THE WAR DEPARTMENT, WOULD HAVE AUTHORIZED THE COMMISSION TO
LEAN HEAVILY ON PRIVATE ENTERPRISE FOR PERFORMANCE OF ITS FUNCTIONS. 
(FN2)  ANOTHER MEASURE, ORIGINATING IN THE SENATE AND AFTER EXTENSIVE
REVISIONS BECOMING THE ATOMIC ENERGY ACT OF 1946, CONTAINED NO
PROVISION AUTHORIZING THE USE OF CONTRACTORS TO THE EXTENT HERE
INVOLVED, REQUIRED THE COMMISSION TO PRODUCE ITS OWN FISSIONABLE
MATERIALS IN ITS OWN PLANTS BY ITS OWN EMPLOYEES, AND DIRECTED THE
COMMISSION TO TERMINATE CONTRACTS PREVIOUSLY MADE FOR THE PRODUCTION OF
FISSIONABLE MATERIALS.  (FN3)  BUT THAT BILL WAS MATERIALLY ALTERED SO
AS TO ADOPT AS THE NATIONAL POLICY THE USE OF "MANAGEMENT CONTRACTS FOR
THE OPERATION OF GOVERNMENT-OWNED PLANTS SO AS TO GAIN THE FULL
ADVANTAGE OF THE SKILL AND EXPERIENCE OF AMERICAN INDUSTRY."  (FN4)
ACCORDINGLY SEC. 4(C)(2) OF THE ACT AUTHORIZES THE COMMISSION "TO MAKE,
OR TO CONTINUE IN EFFECT, CONTRACTS WITH PERSONS OBLIGATING THEM TO
PRODUCE FISSIONABLE MATERIAL IN FACILITIES OWNED BY THE COMMISSION." 
AND SEC. 9(A) AUTHORIZES THE TRANSFER TO THE COMMISSION OF ALL
CONTRACTS CONCERNING THE PRODUCTION OF FISSIONABLE MATERIAL.  THE USE
OF PRIVATE CONTRACTORS IS THEREFORE ONE OF THE WAYS IN WHICH THE
COMMISSION IS AUTHORIZED TO MANAGE ITS AFFAIRS.  ITS ACTIVITIES MAY, IN
OTHER WORDS, BE PERFORMED BY IT DIRECTLY OR THROUGH THE AGENCIES OF
PRIVATE ENTERPRISE. 

CONGRESS USES THE WORD "ACTIVITIES" IN VARIOUS SECTIONS OF THE ACT,
AND SEEMS EACH TIME TO GIVE IT A BROAD SWEEP.  THE CONGRESSIONAL OR
JOINT COMMITTEE CONSTITUTED UNDER SEC. 15 IS DIRECTED TO STUDY "THE
ACTIVITIES" OF THE COMMISSION.  THE REPORTS WHICH THE COMMISSION IS
DIRECTED TO SUBMIT TO CONGRESS PURSUANT TO SEC. 17 CONCERN ITS
"ACTIVITIES."  SECTION 9(B) AUTHORIZES THE COMMISSION TO MAKE PAYMENTS
TO STATE AND LOCAL GOVERNMENTS IN LIEU OF PROPERTY TAXES IN THOSE AREAS
"IN WHICH THE ACTIVITIES OF THE COMMISSION ARE CARRIED ON AND IN WHICH
THE COMMISSION HAS ACQUIRED PROPERTY" PREVIOUSLY SUBJECT TO LOCAL
TAXATION.  IN NONE OF THESE SECTIONS DO WE FIND ANY SUGGESTION THAT
"ACTIVITIES" IS USED IN A NARROW SENSE TO DESCRIBE LESS THAN ALL OF THE
FUNCTIONS OF THE COMMISSION.   THE MEANING OF "ACTIVITIES" AS APPLIED
EITHER TO AN INDIVIDUAL OR TO A GOVERNMENT AGENCY MAY BE BROAD ENOUGH
TO INCLUDE WHAT IS DONE THROUGH INDEPENDENT CONTRACTORS AS WELL AS
THROUGH AGENTS.  CERTAINLY WHERE THE PATTERN OF CONDUCT VISUALIZED BY
THE ACT IS THE USE OF INDEPENDENT CONTRACTORS OR AGENTS FROM THE FIELD
OF PRIVATE ENTERPRISE, THE INFERENCE IS STRONG THAT "ACTIVITIES" MEANS
ALL AUTHORIZED METHODS OF PERFORMING THE GOVERNMENTAL FUNCTION.  WE
FIND NO CONTRARY EVIDENCE FROM THE LEGISLATIVE HISTORY. 

IN VIEW OF THIS CONCLUSION WE FIND IT UNNECESSARY TO REACH THE
PROBLEMS OF IMPLIED CONSTITUTIONAL IMMUNITY INVOLVED IN JAMES V. DRAVO
CONTRACTING CO., SUPRA, AND ALABAMA V. KING & BOOZER, 314 U.S. 1.
AFFIRMED. 

FN1  EXECUTIVE ORDER NO. 9816, DEC. 31, 1946, 12 FED. REG. 37. 

FN2  SEE H.R. REP. NO. 1186, 79TH CONG., 1ST SESS. 

FN3  SEE S. 1717 REPRINTED IN HEARINGS BEFORE THE SENATE SPECIAL
COMMITTEE ON ATOMIC ENERGY, 79TH CONG., 2D SESS., PP. 1-9. 

FN4  S. REP. NO. 1211, 79TH CONG., 2D SESS., P. 15. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION V. JUNEAU SPRUCE
CORP. 342 U.S. 237 


NO. 280.  ARGUED DECEMBER 6, 1951 - DECIDED JANUARY 7, 1952 - 189 F.2D
177, AFFIRMED. 


1.  THE DISTRICT COURT FOR THE TERRITORY OF ALASKA IS A "DISTRICT
COURT OF THE UNITED STATES" WITHIN THE MEANING OF SEC. 303(B) OF THE
LABOR MANAGEMENT RELATIONS ACT, 1947, WHICH AUTHORIZES ANY PERSON
INJURED IN HIS BUSINESS OR PROPERTY BY REASON OF ANY VIOLATION OF SEC.
303(A) (RELATING TO SECONDARY BOYCOTTS, JURISDICTIONAL STRIKES, ETC.)
TO SUE THEREFOR IN ANY "DISTRICT COURT OF THE UNITED STATES."  PP. 240
243. 

2.  THE RIGHT OF ACTION UNDER SEC. 303(B) OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, FOR DAMAGES CAUSED BY JURISDICTIONAL STRIKES
PROHIBITED BY SEC. 303(A)(4) IS NOT DEPENDENT UPON ANY PRIOR
DETERMINATION BY THE NATIONAL LABOR RELATIONS BOARD UNDER SECS.
8(B)(4)(D) AND (10)(K) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED.  PP. 243-245. 

INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION ET AL. V. JUNEAU
SPRUCE CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

THE DISTRICT COURT FOR THE TERRITORY OF ALASKA AWARDED RESPONDENT A
JUDGMENT FOR $750,000 PLUS COSTS AGAINST PETITIONERS FOR INJURIES
SUSTAINED AS A RESULT OF A VIOLATION OF SEC. 303(A) OF THE LABOR
MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 136, 158, 29 U.S.C.  SEC.
187(A).  THE COURT OF APPEALS AFFIRMED.  189 F.2D 177.  THIS COURT
GRANTED CERTIORARI.  342 U.S. 857.  AFFIRMED, P. 245. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN THE SPRING OF 1947, RESPONDENT PURCHASED CERTAIN PROPERTIES FOR
THE MANUFACTURE OF LUMBER, INCLUDING A SAWMILL AT JUNEAU, ALASKA, AND
COMMENCED OPERATIONS.  SHORTLY THEREAFTER, THE INTERNATIONAL
WOODWORKERS OF AMERICA REQUESTED NEGOTIATION OF A CONTRACT WITH
RESPONDENT, CLAIMING REPRESENTATION OF A MAJORITY OF RESPONDENT'S
EMPLOYEES.  A BARGAINING AGREEMENT WAS SIGNED WITH THAT UNION ON
NOVEMBER 3, 1947. 

RESPONDENT DECIDED TO SHIP ITS LUMBER TO PORTS IN CANADA AND THE
UNITED STATES AND ACQUIRED BARGES FOR THAT PURPOSE.  RESPONDENT'S
POLICY WAS TO UTILIZE ITS OWN EMPLOYEES TO LOAD ITS BARGES.  IN
OCTOBER, 1947, PETITIONER, LOCAL 16 OF THE INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S UNION, ASKED THAT ITS MEN BE ALLOWED TO LOAD
RESPONDENT'S BARGES.  THE REQUEST WAS DENIED.  THE REQUEST WAS REPEATED
THE FOLLOWING SPRING AND WAS AGAIN DENIED.  PETITIONER LOCAL
ESTABLISHED A PICKET LINE AT RESPONDENT'S PLANT ON APRIL 10, 1948. 
MOST OF RESPONDENT'S EMPLOYEES REFUSED TO CROSS THE PICKET LINE AND THE
MILL SHUT DOWN.  THE MILL REOPENED ON JULY 19, 1948, BUT PICKETING
CONTINUED.  PETITIONER INTERNATIONAL NOTIFIED ITS CANADIAN LOCALS THAT
RESPONDENT'S PRODUCTS WERE UNFAIR.  RESPONDENT WAS UNABLE TO UNLOAD ITS
BARGES IN CANADA OR PUGET SOUND DUE TO THE REFUSAL OF LONGSHOREMEN TO
WORK RESPONDENT'S VESSELS.  ON OCTOBER 11, 1948, THE MILL AGAIN CLOSED
DOWN DUE TO LACK OF STORAGE FACILITIES TO HOLD THE ACCUMULATING
LUMBER.  PICKETING WAS NOT DISCONTINUED UNTIL MAY 9, 1949. 

ON AUGUST 3, 1948, RESPONDENT FILED A CHARGE AGAINST LOCAL 16
ALLEGING VIOLATIONS OF SEC. 8(B)(4)(D) OF THE NATIONAL LABOR RELATIONS
ACT, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, (FN1) 61
STAT. 136, 141, 29 U.S.C. (SUPP. II) SECS. 151, 158, ON THE GROUND THAT
THE LOCAL ATTEMPTED TO INDUCE ASSIGNMENT OF PARTICULAR WORK TO ITS
MEMBERS.  FOLLOWING A HEARING PURSUANT TO SEC. 10(K) OF THE ACT, THE
NATIONAL LABOR RELATIONS BOARD DETERMINED ON APRIL 1, 1949, THAT
LONGSHOREMEN REPRESENTED BY LOCAL 16 WERE NOT ENTITLED TO THE BARGE
LOADING WORK.  82 N.L.R.B. 650.  IN THE MEANTIME, RESPONDENT HAD FILED
SUIT FOR DAMAGES AGAINST BOTH THE LOCAL AND THE INTERNATIONAL UNDER
SEC. 303(A)(4) OF THE LABOR MANAGEMENT RELATIONS ACT.  (FN2)
RESPONDENT ASKED, PURSUANT TO AN AMENDED COMPLAINT, FOR DAMAGES FROM
APRIL 10, 1948, TO APRIL 27, 1949.  AFTER TRIAL BEFORE A JURY,
RESPONDENT WAS AWARDED A JUDGMENT OF $750,000 PLUS COSTS.  THE COURT OF
APPEALS FOR THE NINTH CIRCUIT AFFIRMED.  189 F.2D 177.  THE CASE IS
HERE ON CERTIORARI.  342 U.S. 857. 

FIRST.  THIS SUIT WAS BROUGHT IN THE DISTRICT COURT FOR THE TERRITORY
OF ALASKA.  AND THE QUESTION WHICH LIES AT THE THRESHOLD OF THE CASE IS
WHETHER THAT COURT IS A "DISTRICT COURT OF THE UNITED STATES" WITHIN
THE MEANING OF SEC. 303(B) OF THE ACT.  (FN3)  THAT COURT HAS THE
JURISDICTION OF DISTRICT COURTS OF THE UNITED STATES BY THE LAW WHICH
CREATED IT.  48 U.S.C. SEC. 101.  YET VESTING IT WITH THAT JURISDICTION
DOES NOT NECESSARILY MAKE IT A DISTRICT COURT FOR ALL THE VARIED
FUNCTIONS OF THE JUDICIAL CODE.  SEE REYNOLDS V. UNITED STATES, 98 U.S.
145, 154; MCALLISTER V. UNITED STATES, 141 U.S. 174; UNITED STATES V.
BURROUGHS, 289 U.S. 159, 163; MOOKINI V. UNITED STATES, 303 U.S. 201,
205.  THE WORDS "DISTRICT COURT OF THE UNITED STATES" COMMONLY DESCRIBE
CONSTITUTIONAL COURTS CREATED UNDER ARTICLE III OF THE CONSTITUTION,
NOT THE LEGISLATIVE COURTS WHICH HAVE LONG BEEN THE COURTS OF THE
TERRITORIES.  (FN4)  SEE MOOKINI V. UNITED STATES, SUPRA, P. 205.  BUT
WE THINK THAT IN THE CONTEXT OF THIS LEGISLATION THEY ARE USED TO
DESCRIBE COURTS WHICH EXERCISE THE JURISDICTION OF DISTRICT COURTS. 
THE JURISDICTION CONFERRED BY SEC. 303(B) (FN5) IS MADE "SUBJECT TO THE
LIMITATIONS AND PROVISIONS OF SECTION 301."  SECTION 301 LIFTS THE
LIMITATIONS GOVERNING DISTRICT COURTS AS RESPECTS THE AMOUNT IN
CONTROVERSY AND THE CITIZENSHIP OF THE PARTIES; IT DEFINES THE CAPACITY
OF LABOR UNIONS TO SUE OR BE SUED; IT RESTRICTS THE ENFORCEABILITY OF A
MONEY JUDGMENT AGAINST A LABOR UNION TO ITS ASSETS; AND IT SPECIFIES
THE JURISDICTION OF A DISTRICT COURT OVER A UNION AND DEFINES THE
SERVICE OF PROCESS.  (FN6)  CONGRESS WAS HERE CONCERNED WITH RESHAPING
LABOR-MANAGEMENT LEGAL RELATIONS; AND IT WAS TAKING PRECISE STEPS TO
DECLARED AND ANNOUNCED OBJECTIVES.  ONE OF THOSE WAS THE ELIMINATION OF
OBSTACLES TO SUITS IN THE FEDERAL COURTS.  IT REVISED THE
JURISDICTIONAL REQUIREMENTS FOR SUITS IN THE DISTRICT COURTS,
REQUIREMENTS AS APPLICABLE TO THE TRIAL COURT AS TO ANY COURT WHICH IN
THE TECHNICAL SENSE IS A DISTRICT COURT OF THE UNITED STATES.  THE ACT
EXTENDS IN ITS FULL SWEEP TO ALASKA AS WELL AS TO THE STATES AND THE
OTHER TERRITORIES.  (FN7)  THE TRIAL COURT IS INDEED THE ONLY COURT IN
ALASKA TO WHICH RECOURSE COULD BE HAD.  EVEN IF IT WERE NOT A "DISTRICT
COURT" WITHIN THE MEANING OF SEC. 303(B), IT PLAINLY WOULD BE "ANY
OTHER COURT" FOR PURPOSES OF THAT SECTION.  AS SUCH OTHER COURT IT
MIGHT OR MIGHT NOT HAVE JURISDICTION OVER THIS DISPUTE DEPENDING ON
ASPECTS OF TERRITORIAL LAW WHICH WE HAVE NOT EXAMINED.  BUT SINCE
CONGRESS LIFTED THE RESTRICTIVE REQUIREMENTS WHICH MIGHT PRECLUDE SUIT
IN COURTS HAVING THE DISTRICT COURT'S JURISDICTION, WE THINK IT IS MORE
CONSONANT WITH THE UNIFORM, NATIONAL POLICY OF THE ACT TO HOLD THAT
THOSE RESTRICTIONS WERE LIFTED AS RESPECTS ALL COURTS UPON WHICH THE
JURISDICTION OF A DISTRICT COURT HAS BEEN CONFERRED.  THAT READING OF
THE ACT DOES NOT, TO BE SURE, TAKE THE WORDS "DISTRICT COURT OF THE
UNITED STATES" IN THEIR HISTORIC, TECHNICAL SENSE.  BUT LITERALNESS IS
NO SURE TOUCHSTONE OF LEGISLATIVE PURPOSE.  THE PURPOSE HERE IS MORE
CLOSELY APPROXIMATED, WE BELIEVE, BY GIVING THE HISTORIC PHRASE A
LOOSER, MORE LIBERAL MEANING IN THE SPECIAL CONTEXT OF THIS
LEGISLATION. 

SECOND.  THE MAIN CONTENTION OF PETITIONERS IN THE CASE IS THAT SEC.
303(A)(4) READ IN LIGHT OF SEC. 8(B)(4)(D) (FN8) RENDERS ILLEGAL ONLY
SUCH PICKETING AS TAKES PLACE AFTER AND IN THE FACE OF A DETERMINATION
BY THE BOARD THAT THE ACTS COMPLAINED OF WERE UNFAIR LABOR PRACTICES. 
IF THAT CONCLUSION IS WARRANTED, THERE MUST BE A REVERSAL HERE SINCE
THE DAMAGES REFLECTED IN THE PRESENT JUDGMENT FOR THE MOST PART ACCRUED
PRIOR TO THE DECISION OF THE BOARD, UNDER SEC. 10(K) OF THE ACT, (FN9)
THAT PETITIONERS HAD COMMITTED AN UNFAIR LABOR PRACTICE WITHIN THE
MEANING OF SEC. 8(B)(4)(D). 

THE CONDUCT CONDEMNED.  SECTION 8(B)(4)(D) GIVES RISE TO AN
ADMINISTRATIVE FINDING; (FN10) SEC.  303(A)(4), TO A JUDGMENT FOR
DAMAGES.  THE FACT THAT THE TWO SECTIONS HAVE AN IDENTITY OF LANGUAGE
AND YET SPECIFY TWO DIFFERENT REMEDIES IS STRONG CONFIRMATION OF OUR
CONCLUSION THAT THE REMEDIES PROVIDED WERE TO BE INDEPENDENT OF EACH
OTHER.  CERTAINLY THERE IS NOTHING IN THE LANGUAGE OF SEC. 303(A)(4)
WHICH MAKES ITS REMEDY DEPENDENT ON ANY PRIOR ADMINISTRATIVE
DETERMINATION THAT AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED. 
RATHER, THE OPPOSITE SEEMS TO BE TRUE.  FOR THE JURISDICTIONAL DISPUTES
PROSCRIBED BY SEC. 303(A)(4) ARE RENDERED UNLAWFUL "FOR THE PURPOSES OF
THIS SECTION ONLY," THUS SETTING APART FOR PRIVATE REDRESS, ACTS WHICH
MIGHT ALSO BE SUBJECTED TO THE ADMINISTRATIVE PROCESS.  THE FACT THAT
THE BOARD MUST FIRST ATTEMPT TO RESOLVE THE DISPUTE BY MEANS OF A SEC.
10(K) DETERMINATION BEFORE IT CAN MOVE UNDER SEC. 10(B) AND (C) FOR A
CEASE AND DESIST ORDER (FN11) IS ONLY A LIMITATION ON ADMINISTRATIVE
POWER, AS IS THE PROVISION IN SEC. 10(K) THAT UPON COMPLIANCE "WITH THE
DECISION OF THE BOARD OR UPON SUCH VOLUNTARY ADJUSTMENT OF THE
DISPUTE," THE CHARGE SHALL BE DISMISSED.  THESE PROVISIONS, LIMITING
AND CURTAILING THE ADMINISTRATIVE POWER, FIND NO COUNTERPART IN THE
PROVISION FOR PRIVATE REDRESS CONTAINED IN SEC. 303(A)(4).  SECTION
303(A)(4) AS EXPLAINED BY SENATOR TAFT, ITS AUTHOR, "RETAINS SIMPLY A
RIGHT OF SUIT FOR DAMAGES AGAINST ANY LABOR ORGANIZATION WHICH
UNDERTAKES A SECONDARY BOYCOTT OR A JURISDICTIONAL STRIKE."  (FN12) 

THE RIGHT TO SUE IN THE COURTS IS CLEAR, PROVIDED THE PRESSURE ON THE
EMPLOYER FALLS IN THE PRESCRIBED CATEGORY WHICH, SO FAR AS MATERIAL
HERE, IS FORCING OR REQUIRING HIM TO ASSIGN PARTICULAR WORK "TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION" RATHER THAN TO EMPLOYEES
"IN ANOTHER LABOR ORGANIZATION" OR IN ANOTHER "CLASS."  HERE THE
JURISDICTIONAL ROW WAS BETWEEN THE OUTSIDE UNION AND THE INSIDE UNION. 
THE FACT THAT THE UNION OF MILL EMPLOYEES TEMPORARILY ACCEDED TO THE
CLAIM OF THE OUTSIDE GROUP DID NOT WITHDRAW THE DISPUTE FROM THE
CATEGORY OF JURISDICTIONAL DISPUTES CONDEMNED BY SEC. 303(A)(4). 
PETITIONERS, REPRESENTING ONE UNION AND EMPLOYING OUTSIDE LABOR, WERE
TRYING TO GET WORK WHICH ANOTHER UNION, EMPLOYING MILL LABOR, HAD. 
THAT COMPETITION FOR WORK AT THE EXPENSE OF EMPLOYERS HAS BEEN
CONDEMNED BY THE ACT.  WHETHER THAT CONDEMNATION WAS WISE OR UNWISE IS
NOT OUR CONCERN.  IT REPRESENTS NATIONAL POLICY WHICH HAS BOTH
ADMINISTRATIVE AND CONVENTIONAL LEGAL SANCTIONS.  AFFIRMED. 

FN1  SECTION 8(B)(4)(D) PROVIDES: 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS: 

     *         *         *         *         * 

"(4)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS:  ...  (D) FORCING OR
REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO EMPLOYEES IN A
PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE, CRAFT, OR CLASS
RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION OR IN ANOTHER
TRADE, CRAFT, OR CLASS, UNLESS SUCH EMPLOYER IS FAILING TO CONFORM TO
AN ORDER OR CERTIFICATION OF THE BOARD DETERMINING THE BARGAINING
REPRESENTATIVES FOR EMPLOYEES PERFORMING SUCH WORK:  PROVIDED, THAT
NOTHING CONTAINED IN THIS SUBSECTION (B) 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; ...  ." 

FN2 SECTION 303(A)(4) PROVIDES: 

"(A)  IT SHALL BE UNLAWFUL, FOR THE PURPOSES OF THIS SECTION ONLY, IN
AN INDUSTRY OR ACTIVITY AFFECTING COMMERCE, FOR ANY LABOR ORGANIZATION
TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY EMPLOYER
TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF THEIR
EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE HANDLE
OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO PERFORM
ANY SERVICES, WHERE AN OBJECT THEREOF IS: 

  *         *         *         *         * 

"(4)  FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE,
CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION
OR IN ANOTHER TRADE, CRAFT, OR CLASS UNLESS SUCH EMPLOYER IS FAILING TO
CONFORM TO AN ORDER OR CERTIFICATION OF THE NATIONAL LABOR RELATIONS
BOARD DETERMINING THE BARGAINING REPRESENTATIVE FOR EMPLOYEES
PERFORMING SUCH WORK.  NOTHING CONTAINED IN THIS SUBSECTION 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 THE NATIONAL LABOR RELATIONS ACT." 

FN3  SECTION 303(B) PROVIDES: 

"WHOEVER SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY REASON OF
ANY VIOLATION OF SUBSECTION (A) MAY SUE THEREFOR IN ANY DISTRICT COURT
OF THE UNITED STATES SUBJECT TO THE LIMITATIONS AND PROVISIONS OF
ANY OTHER COURT HAVING JURISDICTION OF THE PARTIES, AND SHALL RECOVER
THE DAMAGES BY HIM SUSTAINED AND THE COST OF THE SUIT." 

FN4  THE NEW JUDICIAL CODE CREATES JUDICIAL DISTRICTS FOR THE
DISTRICT OF COLUMBIA, 28 U.S.C. SEC. 88; FOR HAWAII, 28 U.S.C. SEC. 91;
AND FOR PUERTO RICO, 28 U.S.C. SEC.  119; BUT NONE FOR THE CANAL ZONE,
THE VIRGIN ISLANDS, OR FOR ALASKA. 

FN5  SEE NOTE 3, SUPRA.    FN6  SECTION 301 PROVIDES: 

"(A)  SUITS FOR VIOLATION OF CONTRACTS BETWEEN AN EMPLOYER AND A
LABOR ORGANIZATION REPRESENTING EMPLOYEES IN AN INDUSTRY AFFECTING
COMMERCE AS DEFINED IN THIS ACT, OR BETWEEN ANY SUCH LABOR
ORGANIZATIONS, MAY BE BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES HAVING JURISDICTION OF THE PARTIES, WITHOUT RESPECT TO THE
AMOUNT IN CONTROVERSY OR WITHOUT REGARD TO THE CITIZENSHIP OF THE
PARTIES. 

"(B) ANY LABOR ORGANIZATION WHICH REPRESENTS EMPLOYEES IN AN INDUSTRY
AFFECTING COMMERCE AS DEFINED IN THIS ACT AND ANY EMPLOYER WHOSE
ACTIVITIES AFFECT COMMERCE AS DEFINED IN THIS ACT SHALL BE BOUND BY THE
ACTS OF ITS AGENTS.  ANY SUCH LABOR ORGANIZATION MAY SUE OR BE SUED AS
AN ENTITY AND IN BEHALF OF THE EMPLOYEES WHOM IT REPRESENTS IN THE
COURTS OF THE UNITED STATES.  ANY MONEY JUDGMENT AGAINST A LABOR
ORGANIZATION IN A DISTRICT COURT OF THE UNITED STATES SHALL BE
ENFORCEABLE ONLY AGAINST THE ORGANIZATION AS AN ENTITY AND AGAINST ITS
ASSETS, AND SHALL NOT BE ENFORCEABLE AGAINST ANY INDIVIDUAL MEMBER OR
HIS ASSETS. 

"(C)  FOR THE PURPOSES OF ACTIONS AND PROCEEDINGS BY OR AGAINST LABOR
ORGANIZATIONS IN THE DISTRICT COURTS OF THE UNITED STATES, DISTRICT
COURTS SHALL BE DEEMED TO HAVE JURISDICTION OF A LABOR ORGANIZATION (1)
IN THE DISTRICT IN WHICH SUCH ORGANIZATION MAINTAINS ITS PRINCIPAL
OFFICE, OR (2) IN ANY DISTRICT IN WHICH ITS DULY AUTHORIZED OFFICERS OR
AGENTS ARE ENGAGED IN REPRESENTING OR ACTING FOR EMPLOYEE MEMBERS. 

"(D)  THE SERVICE OF SUMMONS, SUBPENA, OR OTHER LEGAL PROCESS OF ANY
COURT OF THE UNITED STATES UPON AN OFFICER OR AGENT OF A LABOR
ORGANIZATION, IN HIS CAPACITY AS SUCH, SHALL CONSTITUTE SERVICE UPON
THE LABOR ORGANIZATION. 

"(E)  FOR THE PURPOSES OF THIS SECTION, IN DETERMINING WHETHER ANY
PERSON IS ACTING AS AN 'AGENT' OF ANOTHER PERSON SO AS TO MAKE SUCH
OTHER PERSON RESPONSIBLE FOR HIS ACTS, THE QUESTION OF WHETHER THE
SPECIFIC ACTS PERFORMED WERE ACTUALLY AUTHORIZED OR SUBSEQUENTLY
RATIFIED SHALL NOT BE CONTROLLING." 

FN7  SECTION 2(6) DEFINES COMMERCE TO INCLUDE TRADE, ETC., BETWEEN A
STATE AND A TERRITORY OR WITHIN ANY TERRITORY. 

FN8  SEE NOTES 1 AND 2, SUPRA. 

FN9  SECTION 10(K) PROVIDES: 

"WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN AN UNFAIR
LABOR PRACTICE WITHIN THE MEANING OF PARAGRAPH (4)(D) OF SECTION 8(B),
THE BOARD IS EMPOWERED AND DIRECTED TO HEAR AND DETERMINE THE DISPUTE
OUT OF WHICH SUCH UNFAIR LABOR PRACTICE SHALL HAVE ARISEN, UNLESS,
WITHIN TEN DAYS AFTER NOTICE THAT SUCH CHARGE HAS BEEN FILED, THE
PARTIES TO SUCH DISPUTE SUBMIT TO THE BOARD SATISFACTORY EVIDENCE THAT
THEY HAVE ADJUSTED, OR AGREED UPON METHODS FOR THE VOLUNTARY ADJUSTMENT
OF, THE DISPUTE.  UPON COMPLIANCE BY THE PARTIES TO THE DISPUTE WITH
THE DECISION OF THE BOARD OR UPON SUCH VOLUNTARY ADJUSTMENT OF THE
DISPUTE, SUCH CHARGE SHALL BE DISMISSED." 

FN10  THE ADMINISTRATIVE FINDING UNDER SEC. 10(K) CAN BE THE BASIS
FOR A CEASE AND DESIST ORDER UNDER SEC. 10(B) AND (C).  A CEASE AND
DESIST ORDER WAS ISSUED IN THE PRESENT DISPUTE.  90 N.L.R.B. 1753. 

FN11  JUNEAU SPRUCE CORP., 82 N.L.R.B. 650, 655. 

FN12  93 CONG. REC. 4858; 2 LEGISLATIVE HISTORY OF THE LABOR
MANAGEMENT RELATIONS ACT, 1947, P. 1371. 
..END :








MORISSETTE V. UNITED STATES 342 U.S. 246 


NO. 12.  ARGUED OCTOBER 9-10, 1951 - DECIDED JANUARY 7, 1952 - 187 F.2D
427, REVERSED. 


1.  A CRIMINAL INTENT IS AN ESSENTIAL ELEMENT OF AN OFFENSE UNDER 18
U.S.C. SEC. 641, WHICH PROVIDES THAT "WHOEVER EMBEZZLES, STEALS,
PURLOINS, OR KNOWINGLY CONVERTS" PROPERTY OF THE UNITED STATES IS
PUNISHABLE BY FINE AND IMPRISONMENT.  PP. 247-273. 

(A)  MERE OMISSION FROM SEC. 641 OF ANY MENTION OF INTENT IS NOT TO
BE CONSTRUED AS ELIMINATING THAT ELEMENT FROM THE CRIMES DEFINED. 
UNITED STATES V. BEHRMAN, 258 U.S. 280, AND UNITED STATES V. BALINT,
258 U.S. 250, DISTINGUISHED.  PP. 250-263. 

(B)  THE HISTORY AND PURPOSES OF SEC. 641 AFFORD NO GROUND FOR
INFERRING ANY AFFIRMATIVE INSTRUCTION FROM CONGRESS TO ELIMINATE INTENT
FROM THE OFFENSE OF "KNOWINGLY CONVERTING" OR STEALING GOVERNMENT
PROPERTY.  PP. 263-273. 

2.  WHERE INTENT OF THE ACCUSED IS AN INGREDIENT OF THE CRIME
CHARGED, ITS EXISTENCE IS A QUESTION OF FACT WHICH MUST BE SUBMITTED TO
THE JURY FOR DETERMINATION IN THE LIGHT OF ALL RELEVANT EVIDENCE; AND
THE TRIAL COURT MAY NOT WITHDRAW OR PREJUDGE THE ISSUE BY INSTRUCTING
THE JURY THAT THE LAW RAISES A PRESUMPTION OF INTENT FROM A SINGLE
ACT.  PP. 273-276. 

MORISSETTE V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

PETITIONER WAS CONVICTED OF A VIOLATION OF 18 U.S.C. SEC. 641.  THE
COURT OF APPEALS AFFIRMED.  187 F.2D 427.  THIS COURT GRANTED
CERTIORARI.  341 U.S. 925.  REVERSED, P. 276. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS WOULD HAVE REMAINED A PROFOUNDLY INSIGNIFICANT CASE TO ALL
EXCEPT ITS IMMEDIATE PARTIES HAD IT NOT BEEN SO TRIED AND SUBMITTED TO
THE JURY AS TO RAISE QUESTIONS BOTH FUNDAMENTAL AND FAR-REACHING IN
FEDERAL CRIMINAL LAW, FOR WHICH REASON WE GRANTED CERTIORARI.  (FN1) 

ON A LARGE TRACT OF UNINHABITED AND UNTILLED LAND IN A WOODED AND
SPARSELY POPULATED AREA OF MICHIGAN, THE GOVERNMENT ESTABLISHED A
PRACTICE BOMBING RANGE OVER WHICH THE AIR FORCE DROPPED SIMULATED BOMBS
AT GROUND TARGETS.  THESE BOMBS CONSISTED OF A METAL CYLINDER ABOUT
FORTY INCHES LONG AND EIGHT INCHES ACROSS, FILLED WITH SAND AND ENOUGH
BLACK POWDER TO CAUSE A SMOKE PUFF BY WHICH THE STRIKE COULD BE
LOCATED.  AT VARIOUS PLACES ABOUT THE RANGE SIGNS READ "DANGER - KEEP
OUT - BOMBING RANGE."  NEVERTHELESS, THE RANGE WAS KNOWN AS GOOD DEER
COUNTRY AND WAS EXTENSIVELY HUNTED. 

SPENT BOMB CASINGS WERE CLEARED FROM THE TARGETS AND THROWN INTO
PILES "SO THAT THEY WILL BE OUT OF THE WAY."  THEY WERE NOT STACKED OR
PILED IN ANY ORDER BUT WERE DUMPED IN HEAPS, SOME OF WHICH HAD BEEN
ACCUMULATING FOR FOUR YEARS OR UPWARDS, WERE EXPOSED TO THE WEATHER AND
RUSTING AWAY. 

MORISSETTE, IN DECEMBER OF 1948, WENT HUNTING IN THIS AREA BUT DID
NOT GET A DEER.  HE THOUGHT TO MEET EXPENSES OF THE TRIP BY SALVAGING
SOME OF THESE CASINGS.  HE LOADED THREE TONS OF THEM ON HIS TRUCK AND
TOOK THEM TO A NEARBY FARM, WHERE THEY WERE FLATTENED BY DRIVING A
TRACTOR OVER THEM.  AFTER EXPENDING THIS LABOR AND TRUCKING THEM TO
MARKET IN FLINT, HE REALIZED $84. 

MORISSETTE, BY OCCUPATION, IS A FRUIT STAND OPERATOR IN SUMMER AND A
TRUCKER AND SCRAP IRON COLLECTOR IN WINTER.  AN HONORABLY DISCHARGED
VETERAN OF WORLD WAR II, HE ENJOYS A GOOD NAME AMONG HIS NEIGHBORS AND
HAS HAD NO BLEMISH ON HIS RECORD MORE DISREPUTABLE THAN A CONVICTION
FOR RECKLESS DRIVING. 

THE LOADING, CRUSHING AND TRANSPORTING OF THESE CASINGS WERE ALL IN
BROAD DAYLIGHT, IN FULL VIEW OF PASSERS-BY, WITHOUT THE SLIGHTEST
EFFORT AT CONCEALMENT.  WHEN AN INVESTIGATION WAS STARTED, MORISSETTE
VOLUNTARILY, PROMPTLY AND CANDIDLY TOLD THE WHOLE STORY TO THE
AUTHORITIES, SAYING THAT HE HAD NO INTENTION OF STEALING BUT THOUGHT
THE PROPERTY WAS ABANDONED, UNWANTED AND CONSIDERED OF NO VALUE TO THE
GOVERNMENT.  HE WAS INDICTED, HOWEVER, ON THE CHARGE THAT HE "DID
UNLAWFULLY, WILFULLY AND KNOWINGLY STEAL AND CONVERT" PROPERTY OF THE
UNITED STATES OF THE VALUE OF $84, IN VIOLATION OF 18 U.S.C. SEC. 641,
WHICH PROVIDES THAT "WHOEVER EMBEZZLES, STEALS, PURLOINS, OR KNOWINGLY
CONVERTS" GOVERNMENT PROPERTY IS PUNISHABLE BY FINE AND IMPRISONMENT. 
(FN2)  MORISSETTE WAS CONVICTED AND SENTENCED TO IMPRISONMENT FOR TWO
MONTHS OR TO PAY A FINE OF $200.  THE COURT OF APPEALS AFFIRMED, ONE
JUDGE DISSENTING.  (FN3) 

ON HIS TRIAL, MORISSETTE, AS HE HAD AT ALL TIMES TOLD INVESTIGATING
OFFICERS, TESTIFIED THAT FROM APPEARANCES HE BELIEVED THE CASINGS WERE
CAST-OFF AND ABANDONED, THAT HE DID NOT INTEND TO STEAL THE PROPERTY,
AND TOOK IT WITH NO WRONGFUL OR CRIMINAL INTENT.  THE TRIAL COURT,
HOWEVER, WAS UNIMPRESSED, AND RULED:  "HE TOOK IT BECAUSE HE THOUGHT IT
WAS ABANDONED AND HE KNEW HE WAS ON GOVERNMENT PROPERTY  ...  .  THAT
IS NO DEFENSE  ...  .  I DON'T THINK ANYBODY CAN HAVE THE DEFENSE THEY
THOUGHT THE PROPERTY WAS ABANDONED ON ANOTHER MAN'S PIECE OF
PROPERTY."  THE COURT STATED:  "I WILL NOT PERMIT YOU TO SHOW THIS MAN
THOUGHT IT WAS ABANDONED  ...  .  I HOLD IN THIS CASE THAT THERE IS NO
QUESTION OF ABANDONED PROPERTY."  THE COURT REFUSED TO SUBMIT OR TO
ALLOW COUNSEL TO ARGUE TO THE JURY WHETHER MORISSETTE ACTED WITH
INNOCENT INTENTION.  IT CHARGED:  "AND I INSTRUCT YOU THAT IF YOU
BELIEVE THE TESTIMONY OF THE GOVERNMENT IN THIS CASE, HE INTENDED TO
TAKE IT  ...  .  HE HAD NO RIGHT TO TAKE THIS PROPERTY  ...  .  AND IT
IS NO DEFENSE TO CLAIM THAT IT WAS ABANDONED, BECAUSE IT WAS ON PRIVATE
PROPERTY  ...  .  AND I INSTRUCT YOU TO THIS EFFECT:  THAT IF THIS
YOUNG MAN TOOK THIS PROPERTY (AND HE SAYS HE DID), WITHOUT ANY
PERMISSION (HE SAYS HE DID), THAT WAS ON THE PROPERTY OF THE UNITED
STATES GOVERNMENT (HE SAYS IT WAS), THAT IT WAS OF THE VALUE OF ONE
CENT OR MORE (AND EVIDENTLY IT WAS), THAT HE IS GUILTY OF THE OFFENSE
CHARGED HERE.  IF YOU BELIEVE THE GOVERNMENT, HE IS GUILTY  ...  .  THE
QUESTION ON INTENT IS WHETHER OR NOT HE INTENDED TO TAKE THE PROPERTY. 
HE SAYS HE DID.  THEREFORE, IF YOU BELIEVE EITHER SIDE, HE IS GUILTY." 
PETITIONER'S COUNSEL CONTENDED, "BUT THE TAKING MUST HAVE BEEN WITH A
FELONIOUS INTENT."  THE COURT RULED, HOWEVER:  "THAT IS PRESUMED BY HIS
OWN ACT." 

THE COURT OF APPEALS SUGGESTED THAT "GREATER RESTRAINT IN EXPRESSION
SHOULD HAVE BEEN EXERCISED," BUT AFFIRMED THE CONVICTION BECAUSE, "AS
WE HAVE INTERPRETED THE STATUTE, APPELLANT WAS GUILTY OF ITS VIOLATION
BEYOND A SHADOW OF DOUBT, AS EVIDENCED EVEN BY HIS OWN ADMISSIONS." 
ITS CONSTRUCTION OF THE STATUTE IS THAT IT CREATES SEVERAL SEPARATE AND
DISTINCT OFFENSES, ONE BEING KNOWING CONVERSION OF GOVERNMENT
PROPERTY.  THE COURT RULED THAT THIS PARTICULAR OFFENSE REQUIRES NO
ELEMENT OF CRIMINAL INTENT.  THIS CONCLUSION WAS THOUGHT TO BE REQUIRED
BY THE FAILURE OF CONGRESS TO EXPRESS SUCH A REQUISITE AND THIS COURT'S
DECISIONS IN UNITED STATES V. BEHRMAN, 258 U.S. 280, AND UNITED STATES
V. BALINT, 258 U.S. 250. 

                   I. 

IN THOSE CASES THIS COURT DID CONSTRUE MERE OMISSION FROM A CRIMINAL
ENACTMENT OF ANY MENTION OF CRIMINAL INTENT AS DISPENSING WITH IT.  IF
THEY BE DEEMED PRECEDENTS FOR PRINCIPLES OF CONSTRUCTION GENERALLY
APPLICABLE TO FEDERAL PENAL STATUTES, THEY AUTHORIZE THIS CONVICTION. 
INDEED, SUCH ADOPTION OF THE LITERAL REASONING ANNOUNCED IN THOSE CASES
WOULD DO THIS AND MORE - IT WOULD SWEEP OUT OF ALL FEDERAL CRIMES,
EXCEPT WHEN EXPRESSLY PRESERVED, THE ANCIENT REQUIREMENT OF A CULPABLE
STATE OF MIND.  WE THINK A RESUME OF THEIR HISTORICAL BACKGROUND IS
CONVINCING THAT AN EFFECT HAS BEEN ASCRIBED TO THEM MORE COMPREHENSIVE
THAN WAS CONTEMPLATED AND ONE INCONSISTENT WITH OUR PHILOSOPHY OF
CRIMINAL LAW. 

THE CONTENTION THAT AN INJURY CAN AMOUNT TO A CRIME ONLY WHEN
INFLICTED BY INTENTION IS NO PROVINCIAL OR TRANSIENT NOTION.  IT IS AS
UNIVERSAL AND PERSISTENT IN MATURE SYSTEMS OF LAW AS BELIEF IN FREEDOM
OF THE HUMAN WILL AND A CONSEQUENT ABILITY AND DUTY OF THE NORMAL
INDIVIDUAL TO CHOOSE BETWEEN GOOD AND EVIL.  (FN4)  A RELATION BETWEEN
SOME MENTAL ELEMENT AND PUNISHMENT FOR A HARMFUL ACT IS ALMOST AS
INSTINCTIVE AS THE CHILD'S FAMILIAR EXCULPATORY "BUT I DIDN'T MEAN TO,"
AND HAS AFFORDED THE RATIONAL BASIS FOR A TARDY AND UNFINISHED
SUBSTITUTION OF DETERRENCE AND REFORMATION IN PLACE OF RETALIATION AND
VENGEANCE AS THE MOTIVATION FOR PUBLIC PROSECUTION.  (FN5) UNQUALIFIED
ACCEPTANCE OF THIS DOCTRINE BY ENGLISH COMMON LAW IN THE EIGHTEENTH
CENTURY WAS INDICATED BY BLACKSTONE'S SWEEPING STATEMENT THAT TO
CONSTITUTE ANY CRIME THERE MUST FIRST BE A "VICIOUS WILL."  (FN6)
COMMON-LAW COMMENTATORS OF THE NINETEENTH CENTURY EARLY PRONOUNCED THE
SAME PRINCIPLE, (FN7) ALTHOUGH A FEW EXCEPTIONS NOT RELEVANT TO OUR
PRESENT PROBLEM CAME TO BE RECOGNIZED.  (FN8) 

CRIME, AS A COMPOUND CONCEPT, GENERALLY CONSTITUTED ONLY FROM
CONCURRENCE OF AN EVIL-MEANING MIND WITH AN EVIL-DOING HAND, WAS
CONGENIAL TO AN INTENSE INDIVIDUALISM AND TOOK DEEP AND EARLY ROOT IN
AMERICAN SOIL.  (FN9)  AS THE STATES CODIFIED THE COMMON LAW OF CRIMES,
EVEN IF THEIR ENACTMENTS WERE SILENT ON THE SUBJECT, THEIR COURTS
ASSUMED THAT THE OMISSION DID NOT SIGNIFY DISAPPROVAL OF THE PRINCIPLE
BUT MERELY RECOGNIZED THAT INTENT WAS SO INHERENT IN THE IDEA OF THE
OFFENSE THAT IT REQUIRED NO STATUTORY AFFIRMATION.  COURTS, WITH LITTLE
HESITATION OR DIVISION, FOUND AN IMPLICATION OF THE REQUIREMENT AS TO
OFFENSES THAT WERE TAKEN OVER FROM THE COMMON LAW.  (FN10)  THE
UNANIMITY WITH WHICH THEY HAVE ADHERED TO THE CENTRAL THOUGHT THAT
WRONGDOING MUST BE CONSCIOUS TO BE CRIMINAL IS EMPHASIZED BY THE
VARIETY, DISPARITY AND CONFUSION OF THEIR DEFINITIONS OF THE REQUISITE
BUT ELUSIVE MENTAL ELEMENT.  HOWEVER, COURTS OF VARIOUS JURISDICTIONS,
AND FOR THE PURPOSES OF DIFFERENT OFFENSES, HAVE DEVISED WORKING
FORMULAE, IF NOT SCIENTIFIC ONES, FOR THE INSTRUCTION OF JURIES AROUND
SUCH TERMS AS "FELONIOUS INTENT," "CRIMINAL INTENT," "MALICE
AFORETHOUGHT," "GUILTY KNOWLEDGE," "FRAUDULENT INTENT," "WILFULNESS,"
"SCIENTER," TO DENOTE GUILTY KNOWLEDGE, OR "MENS REA," TO SIGNIFY AN
EVIL PURPOSE OR MENTAL CULPABILITY.  BY USE OR COMBINATION OF THESE
VARIOUS TOKENS, THEY HAVE SOUGHT TO PROTECT THOSE WHO WERE NOT
BLAMEWORTHY IN MIND FROM CONVICTION OF INFAMOUS COMMON-LAW CRIMES. 

HOWEVER, THE BALINT AND BEHRMAN OFFENSES BELONG TO A CATEGORY OF
ANOTHER CHARACTER, WITH VERY DIFFERENT ANTECEDENTS AND ORIGINS.  THE
CRIMES THERE INVOLVED DEPEND ON NO MENTAL ELEMENT BUT CONSIST ONLY OF
FORBIDDEN ACTS OR OMISSIONS.  THIS, WHILE NOT EXPRESSED BY THE COURT,
IS MADE CLEAR FROM EXAMINATION OF A CENTURY-OLD BY ACCELERATING
TENDENCY, DISCERNIBLE BOTH HERE (FN11) AND IN ENGLAND, (FN12) TO CALL
INTO EXISTENCE NEW DUTIES AND CRIMES WHICH DISREGARD ANY INGREDIENT OF
INTENT.  THE INDUSTRIAL REVOLUTION MULTIPLIED THE NUMBER OF WORKMEN
EXPOSED TO INJURY FROM INCREASINGLY POWERFUL AND COMPLEX MECHANISMS,
DRIVEN BY FRESHLY DISCOVERED SOURCES OF ENERGY, REQUIRING HIGHER
PRECAUTIONS BY EMPLOYERS.  TRAFFIC OF VELOCITIES, VOLUMES AND VARIETIES
UNHEARD OF CAME TO SUBJECT THE WAYFARER TO INTOLERABLE CASUALTY RISKS
IF OWNERS AND DRIVERS WERE NOT TO OBSERVE NEW CARES AND UNIFORMITIES OF
CONDUCT.  CONGESTION OF CITIES AND CROWDING OF QUARTERS CALLED FOR
HEALTH AND WELFARE REGULATIONS UNDREAMED OF IN SIMPLER TIMES.  WIDE
DISTRIBUTION OF GOODS BECAME AN INSTRUMENT OF WIDE DISTRIBUTION OF HARM
WHEN THOSE WHO DISPERSED FOOD, DRINK, DRUGS, AND EVEN SECURITIES, DID
NOT COMPLY WITH REASONABLE STANDARDS OF QUALITY, INTEGRITY, DISCLOSURE
AND CARE.  SUCH DANGERS HAVE ENGENDERED INCREASINGLY NUMEROUS AND
DETAILED REGULATIONS WHICH HEIGHTEN THE DUTIES OF THOSE IN CONTROL OF
PARTICULAR INDUSTRIES, TRADES, PROPERTIES OR ACTIVITIES THAT AFFECT
PUBLIC HEALTH, SAFETY OR WELFARE. 

WHILE MANY OF THESE DUTIES ARE SANCTIONED BY A MORE STRICT CIVIL
LIABILITY, (FN13) LAWMAKERS, WHETHER WISELY OR NOT, (FN14) HAVE SOUGHT
TO MAKE SUCH REGULATIONS MORE EFFECTIVE BY INVOKING CRIMINAL SANCTIONS
TO BE APPLIED BY THE FAMILIAR TECHNIQUE OF CRIMINAL PROSECUTIONS AND
CONVICTIONS.   THIS HAS CONFRONTED THE COURTS WITH A MULTITUDE OF
PROSECUTIONS, BASED ON STATUTES OR ADMINISTRATIVE REGULATIONS, FOR WHAT
HAVE BEEN APTLY CALLED "PUBLIC WELFARE OFFENSES."  THESE CASES DO NOT
FIT NEATLY INTO ANY OF SUCH ACCEPTED CLASSIFICATIONS OF COMMON-LAW
OFFENSES, SUCH AS THOSE AGAINST THE STATE, THE PERSON, PROPERTY, OR
PUBLIC MORALS.  MANY OF THESE OFFENSES ARE NOT IN THE NATURE OF
POSITIVE AGGRESSIONS OR INVASIONS, WITH WHICH THE COMMON LAW SO OFTEN
DEALT, BUT ARE IN THE NATURE OF NEGLECT WHERE THE LAW REQUIRES CARE, OR
INACTION WHERE IT IMPOSES A DUTY.  MANY VIOLATIONS OF SUCH REGULATIONS
RESULT IN NO DIRECT OR IMMEDIATE INJURY TO PERSON OR PROPERTY BUT
MERELY CREATE THE DANGER OR PROBABILITY OF IT WHICH THE LAW SEEKS TO
MINIMIZE.  WHILE SUCH OFFENSES DO NOT THREATEN THE SECURITY OF THE
STATE IN THE MANNER OF TREASON, THEY MAY BE REGARDED AS OFFENSES
AGAINST ITS AUTHORITY, FOR THEIR OCCURRENCE IMPAIRS THE EFFICIENCY OF
CONTROLS DEEMED ESSENTIAL TO THE SOCIAL ORDER AS PRESENTLY
CONSTITUTED.  IN THIS RESPECT, WHATEVER THE INTENT OF THE VIOLATOR, THE
INJURY IS THE SAME, AND THE CONSEQUENCES ARE INJURIOUS OR NOT ACCORDING
TO FORTUITY.  HENCE, LEGISLATION APPLICABLE TO SUCH OFFENSES, AS A
MATTER OF POLICY, DOES NOT SPECIFY INTENT AS A NECESSARY ELEMENT.  THE
ACCUSED, IF HE DOES NOT WILL THE VIOLATION, USUALLY IS IN A POSITION TO
PREVENT IT WITH NO MORE CARE THAN SOCIETY MIGHT REASONABLY EXPECT AND
NO MORE EXERTION THAN IT MIGHT REASONABLY EXACT FROM ONE WHO ASSUMED
HIS RESPONSIBILITIES.  ALSO, PENALTIES COMMONLY ARE RELATIVELY SMALL,
AND CONVICTION DOES NO GRAVE DAMAGE TO AN OFFENDER'S REPUTATION.  UNDER
SUCH CONSIDERATIONS, COURTS HAVE TURNED TO CONSTRUING STATUTES AND
REGULATIONS WHICH MAKE NO MENTION OF INTENT AS DISPENSING WITH IT AND
HOLDING THAT THE GUILTY ACT ALONE MAKES OUT THE CRIME.  THIS HAS NOT,
HOWEVER, BEEN WITHOUT EXPRESSIONS OF MISGIVING. 

THE PILOT OF THE MOVEMENT IN THIS COUNTRY APPEARS TO BE A HOLDING
THAT A TAVERNKEEPER COULD BE CONVICTED FOR SELLING LIQUOR TO AN
HABITUAL DRUNKARD EVEN IF HE DID NOT KNOW THE BUYER TO BE SUCH.  BARNES
V. STATE, 19 CONN. 398 (1849).  LATER CAME MASSACHUSETTS HOLDINGS THAT
CONVICTIONS FOR SELLING ADULTERATED MILK IN VIOLATION OF STATUTES
FORBIDDING SUCH SALES REQUIRE NO ALLEGATION OR PROOF THAT DEFENDANT
KNEW OF THE ADULTERATION.  COMMONWEALTH V. FARREN, 9 ALLEN 489 (1864);
COMMONWEALTH V. NICHOLS, 10 ALLEN 199 (1865); COMMONWEALTH V. WAITE, 11
ALLEN 264 (1865).  DEPARTURES FROM THE COMMON-LAW TRADITION, MAINLY OF
THESE GENERAL CLASSES, WERE REVIEWED AND THEIR RATIONALE APPRAISED BY
CHIEF JUSTICE COOLEY, AS FOLLOWS:    "I AGREE THAT AS A RULE THERE CAN
BE NO CRIME WITHOUT A CRIMINAL INTENT; BUT THIS IS NOT BY ANY MEANS A
UNIVERSAL RULE  ...  .  MANY STATUTES WHICH ARE IN THE NATURE OF POLICE
REGULATIONS, AS THIS IS, IMPOSE CRIMINAL PENALTIES IRRESPECTIVE OF ANY
INTENT TO VIOLATE THEM; THE PURPOSE BEING TO REQUIRE A DEGREE OF
DILIGENCE FOR THE PROTECTION OF THE PUBLIC WHICH SHALL RENDER VIOLATION
IMPOSSIBLE."  PEOPLE V. ROBY, 52 MICH. 577, 579, 18 N.W. 365, 366
(1884).    AFTER THE TURN OF THE CENTURY, A NEW USE FOR CRIMES WITHOUT
INTENT APPEARED WHEN NEW YORK ENACTED NUMEROUS AND NOVEL REGULATIONS OF
TENEMENT HOUSES, SANCTIONED BY MONEY PENALTIES.  LANDLORDS CONTENDED
THAT A GUILTY INTENT WAS ESSENTIAL TO ESTABLISH A VIOLATION.  JUDGE
CARDOZO WROTE THE ANSWER: 

"THE DEFENDANT ASKS US TO TEST THE MEANING OF THIS STATUTE BY
STANDARDS APPLICABLE TO STATUTES THAT GOVERN INFAMOUS CRIMES.  THE
ANALOGY, HOWEVER, IS DECEPTIVE.  THE ELEMENT OF CONSCIOUS WRONGDOING,
THE GUILTY MIND ACCOMPANYING THE GUILTY ACT, IS ASSOCIATED WITH THE
CONCEPT OF CRIMES THAT ARE PUNISHED AS INFAMOUS  ...  .  EVEN THERE IT
IS NOT AN INVARIABLE ELEMENT  ...  .  BUT IN THE PROSECUTION OF MINOR
OFFENSES, THERE IS A WIDER RANGE OF PRACTICE AND OF POWER. 
PROSECUTIONS FOR PETTY PENALTIES HAVE ALWAYS CONSTITUTED IN OUR LAW A
CLASS BY THEMSELVES  ...  .  THAT IS TRUE THOUGH THE PROSECUTION IS
CRIMINAL IN FORM."  TENEMENT HOUSE DEPARTMENT V. MCDEVITT, 215 N.Y.
160, 168, 109 N.E.  88, 90 (1915). 

SOON, EMPLOYERS ADVANCED THE SAME CONTENTION AS TO VIOLATIONS OF
REGULATIONS PRESCRIBED BY A NEW LABOR LAW.  JUDGE CARDOZO, AGAIN FOR
THE COURT, POINTED OUT, AS A BASIS FOR PENALIZING VIOLATIONS WHETHER
INTENTIONAL OR NOT, THAT THEY WERE PUNISHABLE ONLY BY FINE "MODERATE IN
AMOUNT," BUT CAUTIOUSLY ADDED THAT IN SUSTAINING THE POWER SO TO FINE
UNINTENDED VIOLATIONS "WE ARE NOT TO BE UNDERSTOOD AS SUSTAINING TO A
LIKE LENGTH THE POWER TO IMPRISON.  WE LEAVE THAT QUESTION OPEN." 
PEOPLE EX REL. PRICE V. SHEFFIELD FARMS CO., 225 N.Y. 25, 32-33, 121
N.E. 474, 477 (1918). 

THUS, FOR DIVERSE BUT RECONCILABLE REASONS, STATE COURTS CONVERGED ON
THE SAME RESULT, DISCONTINUING INQUIRY INTO INTENT IN A LIMITED CLASS
OF OFFENSES AGAINST SUCH STATUTORY REGULATIONS. 

BEFORE LONG, SIMILAR QUESTIONS GROWING OUT OF FEDERAL LEGISLATION
REACHED THIS COURT.  ITS JUDGMENTS WERE IN HARMONY WITH THIS CONSENSUS
OF STATE JUDICIAL OPINION, THE EXISTENCE OF WHICH MAY HAVE LED THE
COURT TO OVERLOOK THE NEED FOR FULL EXPOSITION OF THEIR RATIONALE IN
THE CONTEXT OF FEDERAL LAW.  IN OVERRULING A CONTENTION THAT THERE CAN
BE NO CONVICTION ON AN INDICTMENT WHICH MAKES NO CHARGE OF CRIMINAL
INTENT BUT ALLEGES ONLY MAKING OF A SALE OF A NARCOTIC FORBIDDEN BY
LAW, CHIEF JUSTICE TAFT, WROTE: 

"WHILE THE GENERAL RULE AT COMMON LAW WAS THAT THE SCIENTER WAS A
NECESSARY ELEMENT IN THE INDICTMENT AND PROOF OF EVERY CRIME, AND THIS
WAS FOLLOWED IN REGARD TO STATUTORY CRIMES EVEN WHERE THE STATUTORY
DEFINITION DID NOT IN TERMS INCLUDE IT  ...  , THERE HAS BEEN A
MODIFICATION OF THIS VIEW IN RESPECT TO PROSECUTIONS UNDER STATUTES THE
PURPOSE OF WHICH WOULD BE OBSTRUCTED BY SUCH A REQUIREMENT.  IT IS A
QUESTION OF LEGISLATIVE INTENT TO BE CONSTRUED BY THE COURT  ...  ." 
UNITED STATES V. BALINT, SUPRA, 251-252. 

HE REFERRED, HOWEVER, TO "REGULATORY MEASURES IN THE EXERCISE OF WHAT
IS CALLED THE POLICE POWER WHERE THE EMPHASIS OF THE STATUTE IS
EVIDENTLY UPON ACHIEVEMENT OF SOME SOCIAL BETTERMENT RATHER THAN THE
PUNISHMENT OF THE CRIMES AS IN CASES OF MALA IN SE," AND DREW HIS
CITATION OF SUPPORTING AUTHORITY CHIEFLY FROM STATE COURT CASES DEALING
WITH REGULATORY OFFENSES.  ID., AT 252. 

ON THE SAME DAY, THE COURT DETERMINED THAT AN OFFENSE UNDER THE
NARCOTIC DRUG ACT DOES NOT REQUIRE INTENT, SAYING, "IF THE OFFENSE BE A
STATUTORY ONE, AND INTENT OR KNOWLEDGE IS NOT MADE AN ELEMENT OF IT,
THE INDICTMENT NEED NOT CHARGE SUCH KNOWLEDGE OR INTENT."  UNITED
STATES V. BEHRMAN, SUPRA, AT 288. 

OF COURSE, THE PURPOSE OF EVERY STATUTE WOULD BE "OBSTRUCTED" BY
REQUIRING A FINDING OF INTENT, IF WE ASSUME THAT IT HAD A PURPOSE TO
CONVICT WITHOUT IT.  THEREFORE, THE OBSTRUCTION RATIONALE DOES NOT HELP
US TO LEARN THE PURPOSE OF THE OMISSION BY CONGRESS.  AND SINCE NO
FEDERAL CRIME CAN EXIST EXCEPT BY FORCE OF STATUTE, THE REASONING OF
THE BEHRMAN OPINION, IF READ LITERALLY, WOULD WORK FAR-REACHING CHANGES
IN THE COMPOSITION OF ALL FEDERAL CRIMES.  HAD SUCH A RESULT BEEN
CONTEMPLATED, IT COULD HARDLY HAVE ESCAPED MENTION BY A COURT WHICH
NUMBERED AMONG ITS MEMBERS ONE ESPECIALLY INTERESTED AND INFORMED
CONCERNING THE IMPORTANCE OF INTENT IN COMMON-LAW CRIMES.  (FN15)  THIS
MIGHT BE THE MORE EXPECTED SINCE THE BEHRMAN HOLDING DID CALL FORTH HIS
DISSENT, IN WHICH MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BRANDEIS
JOINED, OMITTING ANY SUCH MENTION. 

IT WAS NOT UNTIL RECENTLY THAT THE COURT TOOK OCCASION MORE
EXPLICITLY TO RELATE ABANDONMENT OF THE INGREDIENT OF INTENT, NOT
MERELY WITH CONSIDERATIONS OF EXPEDIENCY IN OBTAINING CONVICTIONS, NOR
WITH THE MALUM PROHIBITUM CLASSIFICATION OF THE CRIME, BUT WITH THE
PECULIAR NATURE AND QUALITY OF THE OFFENSE.  WE REFERRED TO "  ...  A
NOW FAMILIAR TYPE OF LEGISLATION WHEREBY PENALTIES SERVE AS EFFECTIVE
MEANS OF REGULATION," AND CONTINUED, "SUCH LEGISLATION DISPENSES WITH
THE CONVENTIONAL REQUIREMENT FOR CRIMINAL CONDUCT - AWARENESS OF SOME
WRONGDOING.  IN THE INTEREST OF THE LARGER GOOD IT PUTS THE BURDEN OF
ACTING AT HAZARD UPON A PERSON OTHERWISE INNOCENT BUT STANDING IN
RESPONSIBLE RELATION TO A PUBLIC DANGER."  BUT WE WARNED:  "HARDSHIP
THERE DOUBTLESS MAY BE UNDER A STATUTE WHICH THUS PENALIZES THE
TRANSACTION THOUGH CONSCIOUSNESS OF WRONGDOING BE TOTALLY WANTING." 
UNITED STATES V. DOTTERWEICH, 320 U.S. 277, 280-281, 284.  (FN16) 

NEITHER THIS COURT NOR, SO FAR AS WE ARE AWARE, ANY OTHER HAS
UNDERTAKEN TO DELINEATE A PRECISE LINE OR SET FORTH COMPREHENSIVE
CRITERIA FOR DISTINGUISHING BETWEEN CRIMES THAT REQUIRE A MENTAL
ELEMENT AND CRIMES THAT DO NOT.  WE ATTEMPT NO CLOSED DEFINITION, FOR
THE LAW ON THE SUBJECT IS NEITHER SETTLED NOR STATIC.  THE CONCLUSION
REACHED IN THE BALINT AND BEHRMAN CASES HAS OUR APPROVAL AND ADHERENCE
FOR THE CIRCUMSTANCES TO WHICH IT WAS THERE APPLIED.  A QUITE DIFFERENT
QUESTION HERE IS WHETHER WE WILL EXPAND THE DOCTRINE OF CRIMES WITHOUT
INTENT TO INCLUDE THOSE CHARGED HERE. 

STEALING, LARCENY, AND ITS VARIANTS AND EQUIVALENTS, WERE AMONG THE
EARLIEST OFFENSES KNOWN TO THE LAW THAT EXISTED BEFORE LEGISLATION;
(FN17) THEY ARE INVASIONS OF RIGHTS OF PROPERTY WHICH STIR A SENSE OF
INSECURITY IN THE WHOLE COMMUNITY AND AROUSE PUBLIC DEMAND FOR
RETRIBUTION, THE PENALTY IS HIGH AND, WHEN A SUFFICIENT AMOUNT IS
INVOLVED, THE INFAMY IS THAT OF A FELONY, WHICH, SAYS MAITLAND, IS "
...  AS BAD A WORD AS YOU CAN GIVE TO MAN OR THING."  (FN18)  STATE
COURTS OF LAST RESORT, ON WHOM FALL THE HEAVIEST BURDEN OF INTERPRETING
CRIMINAL LAW IN THIS COUNTRY, HAVE CONSISTENTLY RETAINED THE
REQUIREMENT OF INTENT IN LARCENY-TYPE OFFENSES.  (FN19)  IF ANY STATE
HAS DEVIATED, THE EXCEPTION HAS NEITHER BEEN CALLED TO OUR ATTENTION
NOR DISCLOSED BY OUR RESEARCH. 

CONGRESS, THEREFORE, OMITTED ANY EXPRESS PRESCRIPTION OF CRIMINAL
INTENT FROM THE ENACTMENT BEFORE US IN THE LIGHT OF AN UNBROKEN COURSE
OF JUDICIAL DECISION IN ALL CONSTITUENT STATES OF THE UNION HOLDING
INTENT INHERENT IN THIS CLASS OF OFFENSE, EVEN WHEN NOT EXPRESSED IN A
STATUTE.  CONGRESSIONAL SILENCE AS TO MENTAL ELEMENTS IN AN ACT MERELY
ADOPTING INTO FEDERAL STATUTORY LAW A CONCEPT OF CRIME ALREADY SO WELL
DEFINED IN COMMON LAW AND STATUTORY INTERPRETATION BY THE STATES MAY
WARRANT QUITE CONTRARY INFERENCES THAN THE SAME SILENCE IN CREATING AN
OFFENSE NEW TO GENERAL LAW, FOR WHOSE DEFINITION THE COURTS HAVE NO
GUIDANCE EXCEPT THE ACT.  BECAUSE THE OFFENSES BEFORE THIS COURT IN THE
BALINT AND BEHRMAN CASES WERE OF THIS LATTER CLASS, WE CANNOT ACCEPT
THEM AS AUTHORITY FOR ELIMINATING INTENT FROM OFFENSES INCORPORATED
FROM THE COMMON LAW.  NOR DO EXHAUSTIVE STUDIES OF STATE COURT CASES
DISCLOSE ANY WELL-CONSIDERED DECISIONS APPLYING THE DOCTRINE OF CRIME
WITHOUT INTENT TO SUCH ENACTED COMMON-LAW OFFENSES, (FN20) ALTHOUGH A
FEW DEVIATIONS ARE NOTABLE AS ILLUSTRATIVE OF THE DANGER INHERENT IN
THE GOVERNMENT'S CONTENTIONS HERE.  (FN21) 

THE GOVERNMENT ASKS US BY A FEAT OF CONSTRUCTION RADICALLY TO CHANGE
THE WEIGHTS AND BALANCES IN THE SCALES OF JUSTICE.  THE PURPOSE AND
OBVIOUS EFFECT OF DOING AWAY WITH THE REQUIREMENT OF A GUILTY INTENT IS
TO EASE THE PROSECUTION'S PATH TO CONVICTION, TO STRIP THE DEFENDANT OF
SUCH BENEFIT AS HE DERIVED AT COMMON LAW FROM INNOCENCE OF EVIL
PURPOSE, AND TO CIRCUMSCRIBE THE FREEDOM HERETOFORE ALLOWED JURIES. 
SUCH A MANIFEST IMPAIRMENT OF THE IMMUNITIES OF THE INDIVIDUAL SHOULD
NOT BE EXTENDED TO COMMON-LAW CRIMES ON JUDICIAL INITIATIVE. 

THE SPIRIT OF THE DOCTRINE WHICH DENIES TO THE FEDERAL JUDICIARY
POWER TO CREATE CRIMES FORTHRIGHTLY (FN22) ADMONISHES THAT WE SHOULD
NOT ENLARGE THE REACH OF ENACTED CRIMES BY CONSTITUTING THEM FROM
ANYTHING LESS THAN THE INCRIMINATING COMPONENTS CONTEMPLATED BY THE
WORDS USED IN THE STATUTE.  AND WHERE CONGRESS BORROWS TERMS OF ART IN
WHICH ARE ACCUMULATED THE LEGAL TRADITION AND MEANING OF CENTURIES OF
PRACTICE, IT PRESUMABLY KNOWS AND ADOPTS THE CLUSTER OF IDEAS THAT WERE
ATTACHED TO EACH BORROWED WORD IN THE BODY OF LEARNING FROM WHICH IT
WAS TAKEN AND THE MEANING ITS USE WILL CONVEY TO THE JUDICIAL MIND
UNLESS OTHERWISE INSTRUCTED.  IN SUCH CASE, ABSENCE OF CONTRARY
DIRECTION MAY BE TAKEN AS SATISFACTION WITH WIDELY ACCEPTED
DEFINITIONS, NOT AS A DEPARTURE FROM THEM. 

WE HOLD THAT MERE OMISSION FROM SEC. 641 OF ANY MENTION OF INTENT
WILL NOT BE CONSTRUED AS ELIMINATING THAT ELEMENT FROM THE CRIMES
DENOUNCED. 

                   II. 

IT IS SUGGESTED, HOWEVER, THAT THE HISTORY AND PURPOSES OF SEC. 641
IMPLY SOMETHING MORE AFFIRMATIVE AS TO ELIMINATION OF INTENT FROM AT
LEAST ONE OF THE OFFENSES CHARGED UNDER IT IN THIS CASE.  THE ARGUMENT
DOES NOT CONTEST THAT CRIMINAL INTENT IS RETAINED IN THE OFFENSES OF
EMBEZZLEMENT, STEALING AND PURLOINING, AS INCORPORATED INTO THIS
SEPARATE AND DISTINCT OFFENSE, KNOWINGLY TO CONVERT GOVERNMENT
PROPERTY, UNDER CIRCUMSTANCES WHICH IMPLY THAT IT IS AN OFFENSE IN
WHICH THE MENTAL ELEMENT OF INTENT IS NOT NECESSARY. 

CONGRESS HAS BEEN ALERT TO WHAT OFTEN IS A DECISIVE FUNCTION OF SOME
MENTAL ELEMENT IN CRIME.  IT HAS SEEN FIT TO PRESCRIBE WHAT AN EVIL
STATE OF MIND, DESCRIBED VARIOUSLY IN ONE OR MORE SUCH TERMS AS
"INTENTIONAL," "WILFUL," "KNOWING," "FRAUDULENT" OR "MALICIOUS," WILL
MAKE CRIMINAL AN OTHERWISE INDIFFERENT ACT, (FN23) OR INCREASE THE
DEGREE OF THE OFFENSE OR ITS PUNISHMENT.  (FN24)  ALSO, IT HAS AT TIMES
REQUIRED A SPECIFIC INTENT OR PURPOSE WHICH WILL REQUIRE SOME
SPECIALIZED KNOWLEDGE OR DESIGN FOR SOME EVIL BEYOND THE COMMON-LAW
INTENT TO DO INJURY.  (FN25)  THE LAW UNDER SOME CIRCUMSTANCES
RECOGNIZES GOOD FAITH OR BLAMELESS INTENT AS A DEFENSE, PARTIAL
DEFENSE, OR AS AN ELEMENT TO BE CONSIDERED IN MITIGATION OF
PUNISHMENT.  (FN26)  AND TREASON - THE ONE CRIME DEEMED GRAVE ENOUGH
FOR DEFINITION IN OUR CONSTITUTION ITSELF - REQUIRES NOT ONLY THE DULY
WITNESSED OVERT ACT OF AID AND COMFORT TO THE ENEMY BUT ALSO THE MENTAL
ELEMENT OF DISLOYALTY OR ADHERENCE TO THE ENEMY.  (FN27)  IN VIEW OF
THE CARE THAT HAS BEEN BESTOWED UPON THE SUBJECT, IT IS SIGNIFICANT
THAT WE HAVE NOT FOUND, NOR HAS OUR ATTENTION BEEN DIRECTED TO, ANY
INSTANCE IN WHICH CONGRESS HAS EXPRESSLY ELIMINATED THE MENTAL ELEMENT
FROM A CRIME TAKEN OVER FROM THE COMMON LAW. 

THE SECTION WITH WHICH WE ARE HERE CONCERNED WAS ENACTED IN 1948, AS
A CONSOLIDATION OF FOUR FORMER SECTIONS OF TITLE 18, AS ADOPTED IN
1940, WHICH IN TURN WERE DERIVED FROM TWO SECTIONS OF THE REVISED
STATUTES.  THE PERTINENT LEGISLATIVE AND JUDICIAL HISTORY OF THESE
ANTECEDENTS, AS WELL AS OF SEC. 641, IS FOOTNOTED.  (FN28)  WE FIND NO
OTHER PURPOSE IN THE 1948 RE-ENACTMENT THAN TO COLLECT FROM SCATTERED
SOURCES CRIMES SO KINDRED AS TO BELONG IN ONE CATEGORY.  NOT ONE OF
THESE HAD BEEN INTERPRETED TO BE A CRIME WITHOUT INTENTION AND NO
PURPOSE TO DIFFERENTIATE BETWEEN THEM IN THE MATTER OF INTENT IS
DISCLOSED.  NO INFERENCE THAT SOME WERE AND SOME WERE NOT CRIMES OF
INTENTION CAN BE DRAWN FROM ANY DIFFERENCE IN CLASSIFICATION OR
PUNISHMENT.  NOT ONE FITS THE CONGRESSIONAL CLASSIFICATION OF THE PETTY
OFFENSE; EACH IS, AT ITS LEAST, A MISDEMEANOR, AND IF THE AMOUNT
INVOLVED IS ONE HUNDRED OR MORE DOLLARS EACH IS A FELONY.  (FN29)  IF
ONE CRIME WITHOUT INTENT HAS BEEN SMUGGLED INTO A SECTION WHOSE
DOMINANT OFFENSES DO REQUIRE INTENT, IT WAS PUT IN ILL-FITTING AND
COMPROMISING COMPANY.  THE GOVERNMENT APPARENTLY DID NOT BELIEVE THAT
CONVERSION STOOD SO ALONE WHEN IT DREW THIS ONE-COUNT INDICTMENT TO
CHARGE THAT MORISSETTE "DID UNLAWFULLY, WILFULLY AND KNOWINGLY STEAL
AND CONVERT TO HIS OWN USE."  (FN30) 

CONGRESS, BY THE LANGUAGE OF THIS SECTION, HAS BEEN AT PAINS TO
INCRIMINATE ONLY "KNOWING" CONVERSIONS.  BUT, AT COMMON LAW, THERE ARE
UNWITTING ACTS WHICH CONSTITUTE CONVERSIONS.  IN THE CIVIL TORT, EXCEPT
FOR RECOVERY OF EXEMPLARY DAMAGES, THE DEFENDANT'S KNOWLEDGE, INTENT,
MOTIVE, MISTAKE, AND GOOD FAITH ARE GENERALLY IRRELEVANT.  (FN31)  IF
ONE TAKES PROPERTY WHICH TURNS OUT TO BELONG TO ANOTHER, HIS INNOCENT
INTENT WILL NOT SHIELD HIM FROM MAKING RESTITUTION OR INDEMNITY, FOR
HIS WELL-MEANING MAY NOT BE ALLOWED TO DEPRIVE ANOTHER OF HIS OWN. 
HAD THE STATUTE APPLIED TO CONVERSIONS WITHOUT QUALIFICATION, IT WOULD
HAVE MADE CRIMES OF ALL UNWITTING, INADVERTENT AND UNINTENDED
CONVERSIONS.  KNOWLEDGE, OF COURSE, IS NOT IDENTICAL WITH INTENT AND
MAY NOT HAVE BEEN THE MOST APT WORDS OF LIMITATION.  BUT KNOWING
CONVERSION REQUIRES MORE THAN KNOWLEDGE THAT DEFENDANT WAS TAKING THE
PROPERTY INTO HIS POSSESSION.  HE MUST HAVE HAD KNOWLEDGE OF THE FACTS,
THOUGH NOT NECESSARILY THE LAW, THAT MADE THE TAKING A CONVERSION.  IN
THE CASE BEFORE US, WHETHER THE MENTAL ELEMENT THAT CONGRESS REQUIRED
BE SPOKEN OF AS KNOWLEDGE OR AS INTENT, WOULD NOT SEEM TO ALTER ITS
BEARING ON GUILT.  FOR IT IS NOT APPARENT HOW MORISSETTE COULD HAVE
KNOWINGLY OR INTENTIONALLY CONVERTED PROPERTY THAT HE DID NOT KNOW
COULD BE CONVERTED, AS WOULD BE THE CASE IF IT WAS IN FACT ABANDONED OR
IF HE TRULY BELIEVED IT TO BE ABANDONED AND UNWANTED PROPERTY. 

IT IS SAID, AND AT FIRST BLUSH THE CLAIM HAS PLAUSIBILITY, THAT, IF
WE CONSTRUE THE STATUTE TO REQUIRE A MENTAL ELEMENT AS PART OF CRIMINAL
CONVERSION, IT BECOMES A MEANINGLESS DUPLICATION OF THE OFFENSE OF
STEALING, AND THAT CONVERSION CAN BE GIVEN MEANING ONLY BY INTERPRETING
IT TO DISREGARD INTENTION.  BUT HERE AGAIN A BROADER VIEW OF THE
EVOLUTION OF THESE CRIMES THROWS A DIFFERENT LIGHT ON THE LEGISLATION. 

IT IS NOT SURPRISING IF THERE IS CONSIDERABLE OVERLAPPING IN THE
EMBEZZLEMENT, STEALING, PURLOINING AND KNOWING CONVERSION GROUPED IN
THIS STATUTE.  WHAT HAS CONCERNED CODIFIERS OF THE LARCENY-TYPE OFFENSE
IS THAT GAPS OR CREVICES HAVE SEPARATED PARTICULAR CRIMES OF THIS
GENERAL CLASS AND GUILTY MEN HAVE ESCAPED THROUGH THE BREACHES.  THE
BOOKS CONTAIN A SURFEIT OF CASES DRAWING FINE DISTINCTIONS BETWEEN
SLIGHTLY DIFFERENT CIRCUMSTANCES UNDER WHICH ONE MAY OBTAIN WRONGFUL
ADVANTAGES FROM ANOTHER'S PROPERTY.  THE CODIFIERS WANTED TO REACH ALL
SUCH INSTANCES.  PROBABLY EVERY STEALING IS A CONVERSION, BUT CERTAINLY
NOT EVERY KNOWING CONVERSION IS A STEALING.  "TO STEAL MEANS TO TAKE
AWAY FROM ONE IN LAWFUL POSSESSION WITHOUT RIGHT WITH THE INTENTION TO
KEEP WRONGFULLY."  IRVING TRUST CO. V. LEFF, 253 N.Y. 359, 364, 171
N.E. 569, 571.  CONVERSION, HOWEVER, MAY BE CONSUMMATED WITHOUT ANY
INTENT TO KEEP AND WITHOUT ANY WRONGFUL TAKING, WHERE THE INITIAL
POSSESSION BY THE CONVERTER WAS ENTIRELY LAWFUL.  CONVERSION MAY
INCLUDE MISUSE OR ABUSE OF PROPERTY.  IT MAY REACH USE IN AN
UNAUTHORIZED MANNER OR TO AN UNAUTHORIZED EXTENT OF PROPERTY PLACED IN
ONE'S CUSTODY FOR LIMITED USE.  MONEY RIGHTFULLY TAKEN INTO ONE'S
CUSTODY MAY BE CONVERTED WITHOUT ANY INTENT TO KEEP OR EMBEZZLE IT
MERELY BY COMMINGLING IT WITH THE CUSTODIAN'S OWN, IF HE WAS UNDER A
DUTY TO KEEP IT SEPARATE AND INTACT.  IT IS NOT DIFFICULT TO THINK OF
INTENTIONAL AND KNOWING ABUSES AND UNAUTHORIZED USES OF GOVERNMENT
PROPERTY THAT MIGHT BE KNOWING CONVERSIONS BUT WHICH COULD NOT BE
REACHED AS EMBEZZLEMENT, STEALING OR PURLOINING.  KNOWING CONVERSION
ADDS SIGNIFICANTLY TO THE RANGE OF PROTECTION OF GOVERNMENT PROPERTY
WITHOUT INTERPRETING IT TO PUNISH UNWITTING CONVERSIONS. 

THE PURPOSE WHICH WE HERE ATTRIBUTE TO CONGRESS PARALLELS THAT OF
CODIFIERS OF COMMON LAW IN ENGLAND (FN32) AND IN THE STATES (FN33) AND
DEMONSTRATES THAT THE SERIOUS PROBLEM IN DRAFTING SUCH A STATUTE IS TO
AVOID GAPS AND LOOPHOLES BETWEEN OFFENSES.  IT IS SIGNIFICANT THAT THE
ENGLISH AND STATE CODIFIERS HAVE TRIED TO COVER THE SAME TYPE OF
CONDUCT THAT WE ARE SUGGESTING AS THE PURPOSE OF CONGRESS HERE,
WITHOUT, HOWEVER, DEPARTING FROM THE COMMON-LAW TRADITION THAT THESE
ARE CRIMES OF INTENDMENT. 

WE FIND NO GROUNDS FOR INFERRING ANY AFFIRMATIVE INSTRUCTION FROM
CONGRESS TO ELIMINATE INTENT FROM ANY OFFENSE WITH WHICH THIS DEFENDANT
WAS CHARGED. 

                                       III. 

AS WE READ THE RECORD, THIS CASE WAS TRIED ON THE THEORY THAT EVEN IF
CRIMINAL INTENT WERE ESSENTIAL ITS PRESENCE (A) SHOULD BE DECIDED BY
THE COURT (B) AS A PRESUMPTION OF LAW, APPARENTLY CONCLUSIVE, (C)
PREDICATED UPON THE ISOLATED ACT OF TAKING RATHER THAN UPON ALL OF THE
CIRCUMSTANCES.  IN EACH OF THESE RESPECTS WE BELIEVE THE TRIAL COURT
WAS IN ERROR. 

WHERE INTENT OF THE ACCUSED IS AN INGREDIENT OF THE CRIME CHARGED,
ITS EXISTENCE IS A QUESTION OF FACT WHICH MUST BE SUBMITTED TO THE
JURY.  STATE COURT AUTHORITIES CITED TO THE EFFECT THAT INTENT IS
RELEVANT IN LARCENOUS CRIMES ARE EQUALLY EMPHATIC AND UNIFORM THAT IT
IS A JURY ISSUE.  THE SETTLED PRACTICE AND ITS REASON ARE WELL STATED
BY JUDGE ANDREWS IN PEOPLE V. FLACK, 125 N.Y. 324, 334, 26 N.E. 267,
270: 

"IT IS ALIKE THE GENERAL RULE OF LAW AND THE DICTATE OF NATURAL
JUSTICE THAT TO CONSTITUTE GUILT THERE MUST BE NOT ONLY A WRONGFUL ACT,
BUT A CRIMINAL INTENTION.  UNDER OUR SYSTEM (UNLESS IN EXCEPTIONAL
CASES), BOTH MUST BE FOUND BY THE JURY TO JUSTIFY A CONVICTION FOR
CRIME.  HOWEVER CLEAR THE PROOF MAY BE, OR HOWEVER INCONTROVERTIBLE MAY
SEEM TO THE JUDGE TO BE THE INFERENCE OF A CRIMINAL INTENTION, THE
QUESTION OF INTENT CAN NEVER BE RULED AS A QUESTION OF LAW, BUT MUST
ALWAYS BE SUBMITTED TO THE JURY.  JURORS MAY BE PERVERSE; THE ENDS OF
JUSTICE MAY BE DEFEATED BY UNRIGHTEOUS VERDICTS, BUT SO LONG AS THE
FUNCTIONS OF THE JUDGE AND JURY ARE DISTINCT, THE ONE RESPONDING TO THE
LAW, THE OTHER TO THE FACTS, NEITHER CAN INVADE THE PROVINCE OF THE
OTHER WITHOUT DESTROYING THE SIGNIFICANCE OF TRIAL BY COURT AND JURY
...  ." 

IT FOLLOWS THAT THE TRIAL COURT MAY NOT WITHDRAW OR PREJUDGE THE
ISSUE BY INSTRUCTION THAT THE LAW RAISES A PRESUMPTION OF INTENT FROM
AN ACT.  IT OFTEN IS TEMPTING TO CAST IN TERMS OF A "PRESUMPTION" A
CONCLUSION WHICH A COURT THINKS PROBABLE FROM GIVEN FACTS.  THE SUPREME
COURT OF FLORIDA, FOR EXAMPLE, IN A LARCENY CASE, FROM SELECTED
CIRCUMSTANCES WHICH ARE PRESENT IN THIS CASE, HAS DECLARED A
PRESUMPTION OF EXACTLY OPPOSITE EFFECT FROM THE ONE ANNOUNCED BY THE
TRIAL COURT HERE: 

"  ...  BUT WHERE THE TAKING IS OPEN AND THERE IS NO SUBSEQUENT
ATTEMPT TO CONCEAL THE PROPERTY, AND NO DENIAL, BUT AN AVOWAL, OF THE
TAKING A STRONG PRESUMPTION ARISES THAT THERE WAS NO FELONIOUS INTENT,
WHICH MUST BE REPELLED BY CLEAR AND CONVINCING EVIDENCE BEFORE A
CONVICTION IS AUTHORIZED ...  ."  KEMP V. STATE, 146 FLA. 101, 104, 200
SO.  368, 369. 

WE THINK PRESUMPTIVE INTENT HAS NO PLACE IN THIS CASE.  A CONCLUSIVE
PRESUMPTION WHICH TESTIMONY COULD NOT OVERTHROW WOULD EFFECTIVELY
ELIMINATE INTENT AS AN INGREDIENT OF THE OFFENSE.  A PRESUMPTION WHICH
WOULD PERMIT BUT NOT REQUIRE THE JURY TO ASSUME INTENT FROM AN ISOLATED
FACT WOULD PREJUDGE A CONCLUSION WHICH THE JURY SHOULD REACH OF ITS OWN
VOLITION.  A PRESUMPTION WHICH WOULD PERMIT THE JURY TO MAKE AN
ASSUMPTION WHICH ALL THE EVIDENCE CONSIDERED TOGETHER DOES NOT
LOGICALLY ESTABLISH WOULD GIVE TO A PROVEN FACT AN ARTIFICIAL AND
FICTIONAL EFFECT.  (FN34)  IN EITHER CASE, THIS PRESUMPTION WOULD
CONFLICT WITH THE OVERRIDING PRESUMPTION OF INNOCENCE WITH WHICH THE
LAW ENDOWS THE ACCUSED AND WHICH EXTENDS TO EVERY ELEMENT OF THE
CRIME.  SUCH INCRIMINATING PRESUMPTIONS ARE NOT TO BE IMPROVISED BY THE
JUDICIARY.  EVEN CONGRESSIONAL POWER TO FACILITATE CONVICTIONS BY
SUBSTITUTING PRESUMPTIONS FOR PROOF IS NOT WITHOUT LIMIT.  TOT V.
UNITED STATES, 319 U.S. 463. 

MOREOVER, THE CONCLUSION SUPPLIED BY PRESUMPTION IN THIS INSTANCE WAS
ONE OF INTENT TO STEAL THE CASINGS, AND IT WAS BASED ON THE MERE FACT
THAT DEFENDANT TOOK THEM.  THE COURT THOUGHT THE ONLY QUESTION WAS,
"DID HE INTEND TO TAKE THE PROPERTY?"  THAT THE REMOVAL OF THEM WAS A
CONSCIOUS AND INTENTIONAL ACT WAS ADMITTED.  BUT THAT ISOLATED FACT IS
NOT AN ADEQUATE BASIS ON WHICH THE JURY SHOULD FIND THE CRIMINAL INTENT
TO STEAL OR KNOWINGLY CONVERT, THAT IS, WRONGFULLY TO DEPRIVE ANOTHER
OF POSSESSION OF PROPERTY.  WHETHER THAT INTENT EXISTED, THE JURY MUST
DETERMINE, NOT ONLY FROM THE ACT OF TAKING, BUT FROM THAT TOGETHER WITH
DEFENDANT'S TESTIMONY AND ALL OF THE SURROUNDING CIRCUMSTANCES. 

OF COURSE, THE JURY, CONSIDERING MORISSETTE'S AWARENESS THAT THESE
CASINGS WERE ON GOVERNMENT PROPERTY, HIS FAILURE TO SEEK ANY PERMISSION
FOR THEIR REMOVAL AND HIS SELF-INTEREST AS A WITNESS, MIGHT HAVE
DISBELIEVED HIS PROFESSION OF INNOCENT INTENT AND CONCLUDED THAT HIS
ASSERTION OF A BELIEF THAT THE CASINGS WERE ABANDONED WAS AN
AFTERTHOUGHT.  HAD THE JURY CONVICTED ON PROPER INSTRUCTIONS IT WOULD
BE THE END OF THE MATTER.  BUT JURIES ARE NOT BOUND BY WHAT SEEMS
INESCAPABLE LOGIC TO JUDGES.  THEY MIGHT HAVE CONCLUDED THAT THE HEAPS
OF SPENT CASINGS LEFT IN THE HINTERLAND TO RUST AWAY PRESENTED AN
APPEARANCE OF UNWANTED AND ABANDONED JUNK, AND THAT LACK OF ANY
CONSCIOUS DEPRIVATION OF PROPERTY OR INTENTIONAL INJURY WAS INDICATED
BY MORISSETTE'S GOOD CHARACTER, THE OPENNESS OF THE TAKING, CRUSHING
AND TRANSPORTING OF THE CASINGS, AND THE CANDOR WITH WHICH IT WAS ALL
ADMITTED.  THEY MIGHT HAVE REFUSED TO BRAND MORISSETTE AS A THIEF.  HAD
THEY DONE SO, THAT TOO WOULD HAVE BEEN THE END OF THE MATTER. 
REVERSED. 

FN1  341 U.S. 925. 

FN2  18 U.S.C. SEC. 641, SO FAR AS PERTINENT, READS: 

"WHOEVER EMBEZZLES, STEALS, PURLOINS, OR KNOWINGLY CONVERTS TO HIS
USE OR THE USE OF ANOTHER, OR WITHOUT AUTHORITY, SELLS, CONVEYS OR
DISPOSES OF ANY RECORD, VOUCHER, MONEY, OR THING OF VALUE OF THE UNITED
STATES OR OF ANY DEPARTMENT OR AGENCY THEREOF, OR ANY PROPERTY MADE OR
BEING MADE UNDER CONTRACT FOR THE UNITED STATES OR ANY DEPARTMENT OR
AGENCY THEREOF: 

     *         *         *    *         * 

"SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN TEN
YEARS, OR BOTH; BUT IF THE VALUE OF SUCH PROPERTY DOES NOT EXCEED THE
SUM OF $100, HE SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT
MORE THAN ONE YEAR, OR BOTH." 

FN3  MORISSETTE V. UNITED STATES, 187 F.2D 427. 

FN4  FOR A BRIEF HISTORY AND PHILOSOPHY OF THIS CONCEPT IN BIBLICAL,
GREEK, ROMAN, CONTINENTAL AND ANGLO-AMERICAN LAW, SEE RADIN, INTENT,
CRIMINAL, 8 ENCYC.  SOC.  SCI. 126.  FOR MORE EXTENSIVE TREATMENT OF
THE DEVELOPMENT IN ENGLISH LAW, SEE 2 POLLOCK AND MAITLAND, HISTORY OF
ENGLISH LAW, 448-511.  "HISTORICALLY, OUR SUBSTANTIVE CRIMINAL LAW IS
BASED UPON A THEORY OF PUNISHING THE VICIOUS WILL.  IT POSTULATES A
FREE AGENT CONFRONTED WITH A CHOICE BETWEEN DOING RIGHT AND DOING WRONG
AND CHOOSING FREELY TO DO WRONG."  POUND, INTRODUCTION TO SAYRE, CASES
ON CRIMINAL LAW (1927). 

FN5  IN WILLIAMS V. NEW YORK, 337 U.S. 241, 248, WE OBSERVED THAT
"RETRIBUTION IS NO LONGER THE DOMINANT OBJECTIVE OF THE CRIMINAL LAW. 
REFORMATION AND REHABILITATION OF OFFENDERS HAVE BECOME IMPORTANT GOALS
OF CRIMINAL JURISPRUDENCE."  WE ALSO THERE REFERRED TO "  ...  A
PREVALENT MODERN PHILOSOPHY OF PENOLOGY THAT THE PUNISHMENT SHOULD FIT
THE OFFENDER AND NOT MERELY THE CRIME."  ID., AT 247.  SUCH ENDS WOULD
SEEM ILLUSORY IF THERE WERE NO MENTAL ELEMENT IN CRIME. 

FN6  4 BL. COMM. 21. 

FN7  EXAMPLES OF THESE TEXTS AND THEIR ALTERATIONS IN SUCCESSIVE
EDITIONS IN CONSEQUENCE OF EVOLUTION IN THE LAW OF "PUBLIC WELFARE
OFFENSES," AS HEREINAFTER RECITED, ARE TRACED IN SAYRE, PUBLIC WELFARE
OFFENSES, 33 COL. L. REV. 55, 66. 

FN8  EXCEPTIONS CAME TO INCLUDE SEX OFFENSES, SUCH AS RAPE, IN WHICH
THE VICTIM'S ACTUAL AGE WAS DETERMINATIVE DESPITE DEFENDANT'S
REASONABLE BELIEF THAT THE GIRL HAD REACHED AGE OF CONSENT.  ABSENCE OF
INTENT ALSO INVOLVES SUCH CONSIDERATIONS AS LACK OF UNDERSTANDING
BECAUSE OF INSANITY, SUBNORMAL MENTALITY, OR INFANCY, LACK OF VOLITION
DUE TO SOME ACTUAL COMPULSION, OR THAT INFERRED FROM DOCTRINES OF
COVERTURE.  MOST EXTENSIVE INROADS UPON THE REQUIREMENT OF INTENTION,
HOWEVER, ARE OFFENSES OF NEGLIGENCE, SUCH AS INVOLUNTARY MANSLAUGHTER
OR CRIMINAL NEGLIGENCE AND THE WHOLE RANGE OF CRIMES ARISING FROM
OMISSION OF DUTY.  CF. COMMONWEALTH V. WELANSKY, 316 MASS. 383, 55
N.E.2D 902 (1944). 

FN9  HOLMES, THE COMMON LAW, CONSIDERS INTENT IN THE CHAPTER ON THE
CRIMINAL LAW, AND EARLIER MAKES THE PITHY OBSERVATION:  "EVEN A DOG
DISTINGUISHES BETWEEN BEING STUMBLED OVER AND BEING KICKED."  P. 3. 
RADIN, INTENT, CRIMINAL, 8 ENCYC.  SOC.  SCI. 126, 127, POINTS OUT THAT
IN AMERICAN LAW "MENS REA IS NOT SO READILY CONSTITUTED FROM ANY
WRONGFUL ACT" AS ELSEWHERE. 

FN10  IN THE BALINT CASE, CHIEF JUSTICE TAFT RECOGNIZED THIS BUT
RATHER OVERSTATED IT BY MAKING NO ALLOWANCE FOR EXCEPTIONS SUCH AS
THOSE MENTIONED IN N. 8. 

FN11  THIS TREND AND ITS CAUSES, ADVANTAGES AND DANGERS HAVE BEEN
CONSIDERED BY SAYRE, PUBLIC WELFARE OFFENSES, 33 COL. L. REV. 55; HALL,
PROLEGOMENA TO A SCIENCE OF CRIMINAL LAW, 89 U. OF PA. L. REV. 549;
HALL, INTERRELATIONS OF CRIMINAL LAW AND TORTS, 43 COL.  L. REV. 753,
967. 

FN12  THE CHANGES IN ENGLISH LAW ARE ILLUSTRATED BY NINETEENTH
CENTURY ENGLISH CASES.  IN 1814, IT WAS HELD THAT ONE COULD NOT BE
CONVICTED OF SELLING IMPURE FOODS UNLESS HE WAS AWARE OF THE
IMPURITIES.  REX V. DIXON, 3 M.&S. 11 (K.B. 1814).  HOWEVER, THIRTY-TWO
YEARS LATER, IN AN ACTION TO ENFORCE A STATUTORY FORFEITURE FOR
POSSESSION OF ADULTERATED TOBACCO, THE RESPONDENT WAS HELD LIABLE EVEN
THOUGH HE HAD NO KNOWLEDGE OF, OR CAUSE TO SUSPECT, THE ADULTERATION. 
COUNTERING RESPONDENT'S ARGUMENTS, BARON PARKE SAID, "IT IS VERY TRUE
THAT IN PARTICULAR INSTANCES IT MAY PRODUCE MISCHIEF, BECAUSE AN
INNOCENT MAN MAY SUFFER FROM HIS WANT OF CARE IN NOT EXAMINING THE
TOBACCO HE HAS RECEIVED, AND NOT TAKING A WARRANTY; BUT THE PUBLIC
INCONVENIENCE WOULD BE MUCH GREATER, IF IN EVERY CASE THE OFFICERS WERE
OBLIGED TO PROVE KNOWLEDGE.  THEY WOULD BE VERY SELDOM ABLE TO DO SO." 
REGINA V. WOODROW, 15 M.&W. 404, 417 (EXCH.  1846).  CONVENIENCE OF THE
PROSECUTION THUS EMERGED AS A RATIONALE.  IN 1866, A QUARRY OWNER WAS
HELD LIABLE FOR THE NUISANCE CAUSED BY HIS WORKMEN DUMPING REFUSE INTO
A RIVER, IN SPITE OF HIS PLEA THAT HE PLAYED NO ACTIVE PART IN THE
MANAGEMENT OFF THE BUSINESS AND KNEW NOTHING ABOUT THE DUMPING
INVOLVED.  HIS KNOWLEDGE OR LACK OF IT WAS DEEMED IRRELEVANT.  REGINA
V. STEPHENS, L.R. 1 Q.B. 702 (1866).  BISHOP, REFERRING TO THIS
DECISION, SAYS, "THE DOCTRINE OF THIS ENGLISH CASE MAY ALMOST BE DEEMED
NEW IN THE CRIMINAL LAW  ...  .  AND, PROPERLY LIMITED, THE DOCTRINE IS
EMINENTLY WORTHY TO BE FOLLOWED HEREAFTER."  1 BISHOP, NEW CRIMINAL LAW
(8TH ED. 1892), SEC. 1076.  AFTER THESE DECISIONS, STATUTES PROHIBITING
THE SALE OF IMPURE OR ADULTERATED FOOD WERE ENACTED.  ADULTERATION OF
FOOD ACT (35 & 36 VICT., C. 74, SEC. 2 (1872)); SALE OF FOOD AND DRUGS
ACT OF 1875 (38 & 39 VICT., C. 63).  A CONVICTION UNDER THE FORMER WAS
SUSTAINED IN A HOLDING THAT NO GUILTY KNOWLEDGE OR INTENT NEED BE
PROVED IN A PROSECUTION FOR THE SALE OF ADULTERATED BUTTER, FITZPATRICK
V. KELLY, L.R. 8 Q.B. 337 (1873), AND IN BETTS V. ARMSTEAD, L.R. 20
Q.B.D. 771 (1888), INVOLVING THE LATTER STATUTE, IT WAS HELD THAT THERE
WAS NO NEED FOR A SHOWING THAT THE ACCUSED HAD KNOWLEDGE THAT HIS
PRODUCT DID NOT MEASURE UP TO THE STATUTORY SPECIFICATIONS. 

FN13  THE DEVELOPMENT OF STRICT CRIMINAL LIABILITY REGARDLESS OF
INTENT HAS BEEN ROUGHLY PARALLELED BY AN EVOLUTION OF A STRICT CIVIL
LIABILITY FOR CONSEQUENCES REGARDLESS OF FAULT IN CERTAIN
RELATIONSHIPS, AS SHOWN BY WORKMEN'S COMPENSATION ACTS, AND BY
VICARIOUS LIABILITY FOR FAULT OF OTHERS AS EVIDENCED BY VARIOUS MOTOR
VEHICLE ACTS. 

FN14  CONSEQUENCES OF A GENERAL ABOLITION OF INTENT AS AN INGREDIENT
OF SERIOUS CRIMES HAVE AROUSED THE CONCERN OF RESPONSIBLE AND
DISINTERESTED STUDENTS OF PENOLOGY.  OF COURSE, THEY WOULD NOT JUSTIFY
JUDICIAL DISREGARD OF A CLEAR COMMAND TO THAT EFFECT FROM CONGRESS, BUT
THEY DO ADMONISH US TO CAUTION IN ASSUMING THAT CONGRESS, WITHOUT CLEAR
EXPRESSION, INTENDS IN ANY INSTANCE TO DO SO.

RADIN, INTENT, CRIMINAL, 8 ENCYC.  SOC.  SCI. 126, 130, SAYS, "  ...
AS LONG AS IN POPULAR BELIEF INTENTION AND THE FREEDOM OF THE WILL ARE
TAKEN AS AXIOMATIC, NO PENAL SYSTEM THAT NEGATES THE MENTAL ELEMENT CAN
FIND GENERAL ACCEPTANCE.  IT IS VITAL TO RETAIN PUBLIC SUPPORT OF
METHODS OF DEALING WITH CRIME."  AGAIN, "THE QUESTION OF CRIMINAL
INTENT WILL PROBABLY ALWAYS HAVE SOMETHING OF AN ACADEMIC TAINT. 
NEVERTHELESS, THE FACT REMAINS THAT THE DETERMINATION OF THE BOUNDARY
BETWEEN INTENT AND NEGLIGENCE SPELLS FREEDOM OR CONDEMNATION FOR
THOUSANDS OF INDIVIDUALS.  THE WATCHFULNESS OF THE JURIST JUSTIFIES
ITSELF AT PRESENT IN ITS INSISTENCE UPON THE EXAMINATION OF THE MIND OF
EACH INDIVIDUAL OFFENDER." 

SAYRE, PUBLIC WELFARE OFFENSES, 33 COL. L. REV. 55, 56, SAYS:  "TO
INFLICT SUBSTANTIAL PUNISHMENT UPON ONE WHO IS MORALLY ENTIRELY
INNOCENT, WHO CAUSED INJURY THROUGH REASONABLE MISTAKE OR PURE
ACCIDENT, WOULD SO OUTRAGE THE FEELINGS OF THE COMMUNITY AS TO NULLIFY
ITS OWN ENFORCEMENT." 

HALL, PROLEGOMENA TO A SCIENCE OF CRIMINAL LAW, 89 U. OF PA. L. REV.
549, 569, APPEARS SOMEWHAT LESS DISTURBED BY THE TREND, IF PROPERLY
LIMITED, BUT, AS TO SO-CALLED PUBLIC WELFARE CRIMES, SUGGESTS THAT
"THERE IS NO REASON TO CONTINUE TO BELIEVE THAT THE PRESENT MODE OF
DEALING WITH THESE OFFENSES IS THE BEST SOLUTION OBTAINABLE, OR THAT WE
MUST BE CONTENT WITH THIS SACRIFICE OF ESTABLISHED PRINCIPLES.  THE
RAISING OF A PRESUMPTION OF KNOWLEDGE MIGHT BE AN IMPROVEMENT." 

IN FELTON V. UNITED STATES, 96 U.S. 699, 703, THE COURT SAID, "BUT
THE LAW AT THE SAME TIME IS NOT SO UNREASONABLE AS TO ATTACH
CULPABILITY, AND CONSEQUENTLY TO IMPOSE PUNISHMENT, WHERE THERE IS NO
INTENTION TO EVADE ITS PROVISIONS  ...  ." 

FN15  HOLMES, THE COMMON LAW. 

FN16  FOR THE PLACE OF THE MENTAL ELEMENT IN OFFENSES AGAINST THE
REVENUES,  SEE SPIES V. UNITED STATES, 317 U.S. 492; UNITED STATES V.
SCHARTON, 285 U.S. 518. 

FN17  2 RUSSELL ON CRIME (10TH ED., TURNER, 1950) 1037. 

FN18  2 POLLOCK AND MAITLAND, HISTORY OF ENGLISH LAW, 465. 

FN19  EXAMPLES OF DECISION IN DIVERSE JURISDICTIONS MAY BE CULLED
FROM ANY DIGEST.  MOST NEARLY IN POINT ARE JOHNSON V. STATE, 36 TEX.
375, HOLDING THAT TO TAKE A HORSE RUNNING AT LARGE ON THE RANGE IS NOT
LARCENY IN THE ABSENCE OF AN INTENT TO DEPRIVE AN OWNER OF HIS
PROPERTY; JORDAN V. STATE, 107 TEX. CR. R. 414, 296 S.W. 585, THAT, IF
AT THE TIME OF TAKING PARTS FROM AN AUTOMOBILE THE ACCUSED BELIEVED
THAT THE CAR HAD BEEN ABANDONED BY ITS OWNER, HE SHOULD BE ACQUITTED;
FETKENHAUER V. STATE, 112 WIS. 491, 88 N.W. 294, THAT AN HONEST,
ALTHOUGH MISTAKEN, BELIEF BY DEFENDANT THAT HE HAD PERMISSION TO TAKE
PROPERTY SHOULD BE CONSIDERED BY THE JURY; AND DEVINE V. PEOPLE.  20
HUN (N.Y.)  98, HOLDING THAT A CLAIM THAT AN ACT WAS ONLY A PRACTICAL
JOKE MUST BE WEIGHED AGAINST AN ADMITTED TAKING OF PROPERTY. 

OTHERS OF LIKE PURPORT ARE FARZLEY V. STATE, 231 ALA. 60, 163 SO.
394; NICKERSON V. STATE, 22 ALA. APP. 640, 119 SO. 243; PEOPLE V.
WILLIAMS, 73 CAL. APP. 2D 154, 166 P.2D 63; SCHIFF V. PEOPLE, 111 COLO.
333, 141 P.2D 892; KEMP V. STATE, 146 FLA. 101, 200 SO. 368; PERDEW V.
COMMONWEALTH, 260 KY. 638, 86 S.W.2D 534, HOLDING THAT APPROPRIATION BY
A FINDER OF LOST PROPERTY CANNOT CONSTITUTE LARCENY IN THE ABSENCE OF
INTENT; PEOPLE V. SHAUNDING, 268 MICH. 218, 255 N.W. 770; PEOPLE V.
WILL, 289 N.Y. 413, 46 N.E.2D 498; VAN VECHTEN V. AMERICAN EAGLE FIRE
INS. CO., 239 N.Y. 303, 146 N.E. 432; THOMAS V. KESSLER, 334 PA. 7, 5
A.2D 187; BARNES V. STATE, 145 TEX. CR. R. 131, 166 S.W.2D 708; SANDEL
V. STATE, 131 TEX. CR. R. 132, 97 S.W.2D 225; WEEKS V. STATE, 114 TEX.
CR. R. 406, 25 S.W.2D 855; HESKEW V. STATE, 18 TEX. CT. APP. 275; PAGE
V. COMMONWEALTH, 148 VA. 733, 138 S.E. 510, HOLDING REVERSIBLE ERROR TO
EXCLUDE EVIDENCE HAVING A TENDENCY TO THROW LIGHT ON THE QUESTION OF
THE BONA FIDES OF ONE ACCUSED OF LARCENY; BUTTS V. COMMONWEALTH, 145
VA. 800, 133 S.E. 764; STATE V. LEVY, 113 VT. 459, 35 A.2D 853, HOLDING
THAT THE TAKING OF ANOTHER'S PROPERTY IN GOOD FAITH BY INADVERTENCE OR
MISTAKE DOES NOT CONSTITUTE LARCENY. 

FN20  SAYRE, PUBLIC WELFARE OFFENSES, 33 COL. L. REV. 55, 73, 84,
CITES AND CLASSIFIES A LARGE NUMBER OF CASES AND CONCLUDES THAT THEY
FALL ROUGHLY INTO SUBDIVISIONS OF (1) ILLEGAL SALES OF INTOXICATING
LIQUOR, (2) SALES OF IMPURE OR ADULTERATED FOOD OR DRUGS, (3) SALES OF
MISBRANDED ARTICLES, (4) VIOLATIONS OF ANTINARCOTIC ACTS, (5) CRIMINAL
NUISANCES, (6) VIOLATIONS OF TRAFFIC REGULATIONS, (7) VIOLATIONS OF
MOTOR-VEHICLE LAWS, AND (8) VIOLATIONS OF GENERAL POLICE REGULATIONS,
PASSED FOR THE SAFETY, HEALTH OR WELL-BEING OF THE COMMUNITY. 

FN21  SAYRE POINTS OUT THAT IN CRIMINAL SYNDICALISM OR SEDITION
CASES, WHERE THE PRESSURE TO CONVICT IS STRONG, IT HAS BEEN
ACCOMPLISHED BY DISPENSING WITH THE ELEMENT OF INTENT, IN SOME
INSTANCES BY ANALOGY WITH THE PUBLIC WELFARE OFFENSE.  EXAMPLES ARE
STATE V. HENNESSY, 114 WASH. 351, 195 P. 211; PEOPLE V. RUTHENBERG, 229
MICH. 315, 201 N.W. 358; STATE V. KAHN, 56 MONT. 108, 182 P. 107; STATE
V. SMITH, 57 MONT. 563, 190 P. 107.  COMPARE PEOPLE V. MCCLENNEGEN, 195
CAL. 445, 234 P. 91.  THIS ALTHOUGH INTENT IS OF THE VERY ESSENCE OF
OFFENSES BASED ON DISLOYALTY.  CF. CRAMER V. UNITED STATES, 325 U.S. 1;
HAUPT V. UNITED STATES, 330 U.S. 631, WHERE INNOCENCE OF INTENTION WILL
DEFEAT A CHARGE EVEN OF TREASON. 

FN22  UNITED STATES V. HUDSON AND GOODWIN, 7 CRANCH 32; UNITED STATES
V. GOODING, 12 WHEAT.  460. 

FN23  18 U.S.C. SEC. 81, ARSON:  "  ...  WILLFULLY AND MALICIOUSLY
...  "; 18 U.S.C.  SEC. 113, ASSAULT:  "(A)  ...  WITH INTENT TO COMMIT
MURDER OR RAPE  ...  .  (B)  ...  WITH INTENT TO COMMIT ANY FELONY,
EXCEPT MURDER OR RAPE  ...  "; 18 U.S.C. SEC.  152, BANKRUPTCY -
CONCEALMENT OF ASSETS, FALSE OATHS AND CLAIMS, BRIBERY:  "  ...
KNOWINGLY AND FRAUDULENTLY  ...  "; 18 U.S.C. SEC. 201, BRIBERY AND
GRAFT:  "  ...  WITH INTENT TO INFLUENCE  ...  "; 18 U.S.C. SEC. 471,
COUNTERFEITING AND FORGERY: "  ...  WITH INTENT TO DEFRAUD  ...  "; 18
U.S.C. SEC. 594, INTIMIDATION OF VOTERS:  " ...  FOR THE PURPOSE OF
...  "; 18 U.S.C. SEC. 1072, CONCEALING ESCAPED PRISONER:  "  ...
WILLFULLY ...  "; 61 STAT. 151, 29 U.S.C. SEC. 162, INTERFERENCE WITH A
MEMBER OF THE NATIONAL LABOR RELATIONS BOARD OR AN AGENT OF THE BOARD
IN HIS PERFORMANCE OF HIS DUTIES:  "  ...  WILLFULLY ...  "; 52 STAT.
1069, 29 U.S.C. SEC. 216(A), VIOLATIONS OF PROVISIONS OF FAIR LABOR
STANDARDS ACT: "  ...  WILLFULLY  ...  "; 37 STAT. 251, 21 U.S.C. SEC.
23, PACKING OR SELLING MISBRANDED BARRELS OF APPLES:  "  ...  KNOWINGLY
...  ." 

FN24  18 U.S.C. SEC. 1112, MANSLAUGHTER, "  ...  THE UNLAWFUL KILLING
OF A HUMAN BEING WITHOUT MALICE," IF VOLUNTARY, CARRIES A MAXIMUM
PENALTY OF IMPRISONMENT NOT TO EXCEED TEN YEARS.  IF THE KILLING IS
"WITH MALICE AFORETHOUGHT," THE CRIME IS MURDER, 18 U.S.C.  SEC. 1111,
AND, IF OF THE FIRST DEGREE, PUNISHABLE BY DEATH OR LIFE IMPRISONMENT,
OR, IF OF THE SECOND DEGREE, PUNISHABLE BY IMPRISONMENT FOR ANY TERM OF
YEARS OR LIFE. 

FN25  18 U.S.C. SEC. 242; SCREWS V. UNITED STATES, 325 U.S. 91. 

FN26  I.R.C. SECS. 145(A), 145(B), 53 STAT. 62, AS AMENDED, 26 U.S.C.
SECS. 145(A), 145(B), AS CONSTRUED IN SPIES V. UNITED STATES, 317 U.S.
492; 52 STAT. 1069, 29 U.S.C.  SEC. 216(A), STATING THE CRIMINAL
SANCTIONS FOR VIOLATIONS OF THE FAIR LABOR STANDARDS ACT, PROVIDES
THAT:  "NO PERSON SHALL BE IMPRISONED UNDER THIS SUBSECTION EXCEPT FOR
AN OFFENSE COMMITTED AFTER THE CONVICTION OF SUCH PERSON FOR A PRIOR
OFFENSE UNDER THIS SUBSECTION."  N.Y. PENAL LAW, SEC. 1306, PROVIDES
THAT, "UPON AN INDICTMENT FOR LARCENY IT IS A SUFFICIENT DEFENSE THAT
THE PROPERTY WAS APPROPRIATED OPENLY AND AVOWEDLY, UNDER A CLAIM OF
TITLE PREFERRED IN GOOD FAITH, EVEN THOUGH SUCH CLAIM IS UNTENABLE." 

FN27  U.S. CONST., ART. III, SEC. 3, CL. 1. 

THIS PROVISION WAS TO PREVENT INCRIMINATION OF MERE MENTAL OPERATIONS
SUCH AS "COMPASSING" THE DEATH OF THE KING.  SEE CRAMER V. UNITED
STATES, 325 U.S. 1.  TO HOLD THAT A MENTAL ELEMENT IS NECESSARY TO A
CRIME IS, OF COURSE, NOT TO SAY THAT IT IS ALL THAT IS NECESSARY. 

FN28 THE REVISER'S NOTE TO 18 U.S.C. SEC. 641 STATES THAT IT IS
DERIVED FROM 18 U.S.C.  (1940 ED.)  SECS.  82, 87, 100, AND 101 WHICH,
IN TURN, ARE FROM REV. STAT. SECS. 5438 AND 5439.  WE SHALL CONSIDER
ONLY THE 1940 CODE SECTIONS AND THEIR INTERPRETATIONS. 

18 U.S.C. (1940 ED.)  SEC.  82 READS: 

"WHOEVER SHALL TAKE AND CARRY AWAY OR TAKE FOR HIS USE, OR FOR THE
USE OF ANOTHER, WITH INTENT TO STEAL OR PURLOIN  ...  ANY PROPERTY OF
THE UNITED STATES  ...  SHALL BE PUNISHED AS FOLLOWS  ...  ." 

IN UNITED STATES V. ANDERSON, 45 F. SUPP. 943, A PROSECUTION FOR
CONSPIRACY TO VIOLATE THAT SECTION, DISTRICT JUDGE YANKWICH SAID: 

"IT HAS BEEN BEFORE THE COURTS IN VERY FEW CASES.  BUT SUCH COURTS AS
HAVE HAD CASES UNDER IT, INCLUDING OUR OWN NINTH CIRCUIT COURT OF
APPEALS, HAVE HELD THAT THE OBJECT OF THE SECTION IS TO INTRODUCE THE
CRIME OF LARCENY INTO THE FEDERAL CRIMINAL CODE. 

"IN FRACH V. MASS, 9 CIR., 1939, 106 F.2D 820, 821, WE FIND THESE
WORDS:  'LARCENY OF PROPERTY OF THE UNITED STATES IS MADE A CRIME BY 18
U.S.C.A. SEC. 82.' 

"THIS MEANS OF COURSE, THAT IN INTERPRETING THE STATUTE, WE MAY APPLY
THE PRINCIPLES GOVERNING THE COMMON LAW CRIME OF LARCENY, AS
INTERPRETED BY THE COURTS OF VARIOUS STATES."  45 F. SUPP. AT 945. 

UNITED STATES V. TRINDER, 1 F. SUPP. 659, WAS A PROSECUTION OF A GROUP
OF BOYS, UNDER SEC. 82, FOR "STEALING" A GOVERNMENT AUTOMOBILE.  THEY
HAD TAKEN IT FOR A JOY RIDE WITHOUT PERMISSION, FULLY INTENDING TO
RETURN IT WHEN THEY WERE THROUGH.  THEIR PLANS WENT AWRY WHEN THE AUTO
CAME TO GRIEF AGAINST A TELEPHONE POLE.  IN DISMISSING THE COMPLAINT,
THE DISTRICT JUDGE SAID: 

"UPON PRINCIPLE AND AUTHORITY THERE WAS NO STEALING BUT MERELY
TRESPASS; SECRET BORROWING.  AT COMMON LAW AND LIKEWISE BY THE FEDERAL
STATUTE (18 U.S.C.A. SEC. 82) ADOPTING COMMON-LAW TERMS, STEALING IN
GENERAL IMPORTS LARCENY; THAT IS, FELONIOUS TAKING AND INTENT TO
PERMANENTLY DEPRIVE THE OWNER OF HIS PROPERTY."  1 F. SUPP. AT 660. 

18 U.S.C. (1940 ED.)  SEC.  87, ENTITLED "EMBEZZLING ARMS AND
STORES," PROVIDES: 

"WHOEVER SHALL STEAL, EMBEZZLE, OR KNOWINGLY APPLY TO HIS OWN USE, OR
UNLAWFULLY SELL, CONVEY, OR DISPOSE OF, ANY ORDNANCE, ARMS, AMMUNITION,
CLOTHING, SUBSISTENCE, STORES, MONEY, OR OTHER PROPERTY OF THE UNITED
STATES, FURNISHED OR TO BE USED FOR THE MILITARY OR NAVAL SERVICE,
SHALL BE PUNISHED AS PRESCRIBED IN SECTIONS 80 AND 82-86 OF THIS
TITLE." 

NO CASES APPEAR TO HAVE BEEN DECIDED RELATING TO THE ELEMENT OF
INTENT IN THE ACTS PROSCRIBED IN THAT SECTION. 

18 U.S.C. (1940 ED.)  SEC.  100, "EMBEZZLING PUBLIC MONEYS OR OTHER
PROPERTY," STATES THAT: 

"WHOEVER SHALL EMBEZZLE, STEAL, OR PURLOIN ANY MONEY, PROPERTY,
RECORD, VOUCHER, OR VALUABLE THING WHATEVER, OF THE MONEYS, GOODS,
CHATTELS, RECORDS, OR PROPERTY OF THE UNITED STATES, SHALL BE FINED NOT
MORE THAN $5,000, OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH." 

THE ONLY NOTED CASE OF CONSEQUENCE IS CRABB V. ZERBST, 99 F.2D 562
(C.A. 5TH CIR.), TO WHICH THE DISSENT BELOW REFERRED AT SOME LENGTH. 
THE APPELLANT THERE WAS CONVICTED OF FELONIOUSLY TAKING AND CARRYING
AWAY CERTAIN PERSONAL PROPERTY OF THE UNITED STATES IN VIOLATION OF
SEC. 46 OF THE CRIMINAL CODE, 18 U.S.C. (1940 ED.)  SEC.  99, AND HAD
BEEN SENTENCED TO SEVEN YEARS' IMPRISONMENT.   HE ARGUED THAT THE FIVE
YEAR LIMITATION OF SENTENCE IN 18 U.S.C. (1940 ED.)  SEC.  100 FOR
STEALING PROPERTY OF THE UNITED STATES REDUCED THE TEN-YEAR LIMITATION
IN SEC. 99 FOR FELONIOUSLY TAKING AND CARRYING AWAY PROPERTY OF THE
UNITED STATES TO FIVE YEARS ALSO. 

THE COURT OF APPEALS REJECTED HIS ARGUMENT, HOLDING THAT THE CRIME OF
"STEALING" IN SEC. 100 WAS SEPARATE AND DISTINCT FROM THE OFFENSE
SPECIFIED IN SEC. 99, ON THE GROUND THAT SEC. 100 WAS A BROADENING OF
THE COMMON-LAW CRIME OF LARCENY TO FORECLOSE ANY AVENUE BY WHICH ONE
MIGHT, IN THE PROCESS OF PLEADING, ESCAPE CONVICTION FOR ONE OFFENSE BY
PROVING THAT HE HAD COMMITTED ANOTHER ONLY A HAIR'S BREADTH DIFFERENT. 
IN THE COURSE OF ITS OPINION, IT ADVANCED THE FOLLOWING PERTINENT
OBSERVATIONS: 

"THAT FELONIOUS TAKING AND CARRYING AWAY OF PROPERTY WHICH MAY BE THE
SUBJECT OF THE OFFENSE CONSTITUTES THE COMMON LAW OFFENSE OF LARCENY
CANNOT BE DISPUTED  ...  .  HOWEVER, IT IS DOUBTFUL IF AT COMMON LAW
ANY FIXED DEFINITION OR FORMULA (AS TO THE MEANING OF 'LARCENY') WAS
NOT STRAINED IN ITS APPLICATION TO SOME OF THE CASES CLEARLY
CONSTITUTING THE OFFENSE.  MODERN CRIMINAL CODES TREAT THE OFFENSE IN
VARIOUS WAYS.  SOME DEFINE THE OFFENSE BY FOLLOWING THE OLD CASES AND
ARE MERELY DECLARATORY OF THE COMMON LAW, WHILE OTHERS HAVE BROADENED
THE OFFENSE TO INCLUDE OFFENSES PREVIOUSLY KNOWN AS EMBEZZLEMENT, FALSE
PRETENSES, AND EVEN FELONIOUS BREACHES OF TRUST.           *         *
  *         *         * 

"AS POINTED OUT ABOVE, THE MODERN TENDENCY IS TO BROADEN THE OFFENSE
OF LARCENY, BY WHATEVER NAME IT MAY BE CALLED, TO INCLUDE SUCH RELATED
OFFENSES AS WOULD TEND TO COMPLICATE PROSECUTIONS UNDER STRICT PLEADING
AND PRACTICE.  IN SOME OF THESE STATUTES THE OFFENSE IS DENOMINATED
'THEFT' OR 'STEALING.'  NO STATUTE OFFERS A CLEARER EXAMPLE OF
COMPROMISE BETWEEN THE COMMON LAW AND THE MODERN CODE THAN THE TWO
DEALS WITH ROBBERY AND LARCENY, THE DESCRIPTION OF THE LATTER BEING
TAKEN FROM THE COMMON LAW.  SECTION 47 (18 U.S.C.  (1940 ED.)  SEC. 
100) DENOUNCES THE RELATED OFFENSES WHICH MIGHT BE INCLUDED WITH THOSE
DESCRIBED IN SECTION 46 UNDER A CODE PRACTICE SEEKING TO AVOID THE
PITFALLS OF TECHNICAL PLEADING.  IN IT THE OFFENSE OF EMBEZZLEMENT IS
INCLUDED BY NAME, WITHOUT DEFINITION.  THEN TO COVER SUCH CASES AS MAY
SHADE INTO LARCENY, AS WELL AS ANY NEW SITUATIONS WHICH MAY ARISE UNDER
CHANGING MODERN CONDITIONS AND NOT ENVISIONED UNDER THE COMMON LAW, IT
ADDS THE WORDS STEAL OR PURLOIN  ...  . STEALING, HAVING NO COMMON LAW
DEFINITION TO RESTRICT ITS MEANING AS AN OFFENSE, IS COMMONLY USED TO
DENOTE ANY DISHONEST TRANSACTION WHEREBY ONE PERSON OBTAINS THAT WHICH
RIGHTFULLY BELONGS TO ANOTHER, AND DEPRIVES THE OWNER OF THE RIGHTS AND
BENEFITS OF OWNERSHIP, BUT MAY OR MAY NOT INVOLVE THE ELEMENT OF
STEALTH USUALLY ATTRIBUTED TO THE WORD PURLOIN  ...  .  THUS, IN ANY
CASE INVOLVING LARCENY AS DEFINED BY THE COMMON LAW, SECTION 46 (18
U.S.C. (1940 ED.)  SEC.  99) WOULD APPLY.  WHERE THE OFFENSE IS
EMBEZZLEMENT, OR ITS NATURE SO DOUBTFUL AS TO FALL BETWEEN LARCENY AND
EMBEZZLEMENT, IT MAY BE PROSECUTED UNDER SECTION 47 (18 U.S.C. (1940
ED.)  SEC.  100)."  99 F.2D AT 564-565. 

THE REFERENCE IN CRABB V. ZERBST TO 18 U.S.C. (1940 ED.)  SEC.  99,
THE ROBBERY AND LARCENY STATUTE THEN OPERATIVE, SUGGESTS EXAMINATION OF
ITS SUCCESSOR IN TODAY'S CODE.  FOR PURPOSE OF CLARIFICATION, THAT

"WHOEVER SHALL ROB ANOTHER OF ANY KIND OR DESCRIPTION OF PERSONAL
PROPERTY BELONGING TO THE UNITED STATES, OR SHALL FELONIOUSLY TAKE AND
CARRY AWAY THE SAME, SHALL BE FINED NOT MORE THAN $5,000, OR IMPRISONED
NOT MORE THAN TEN YEARS, OR BOTH." 

THE REVISER'S NOTE TO 18 U.S.C. SEC. 641 MAKES NO MENTION OF IT AS A
SUCCESSOR TO THAT SECTION.  THE PRESENT ROBBERY STATUTE IS 18 U.S.C.
SEC. 2112, "PERSONAL PROPERTY OF UNITED STATES," PROVIDING THAT: 

"WHOEVER ROBS ANOTHER OF ANY KIND OR DESCRIPTION OF PERSONAL PROPERTY
BELONGING TO THE UNITED STATES, SHALL BE IMPRISONED NOT MORE THAN
FIFTEEN YEARS." 

THE REVISER'S NOTE TO THAT SECTION RECITES THAT IT IS DERIVED FROM
SEC. 99 OF THE 1940 CODE, AND "THAT PORTION OF SAID SECTION 99 RELATING
TO FELONIOUS TAKING WAS OMITTED AS COVERED BY SECTION 641 OF THIS
TITLE," WHICH MAKES IT CLEAR THAT, NOTWITHSTANDING THE ABSENCE OF ANY
REFERENCE TO 18 U.S.C. (1940 ED.)  SEC.  99 IN THE NOTE TO 18 U.S.C.
SEC. 641, THE CRIME OF LARCENY BY A FELONIOUS TAKING AND CARRYING AWAY
HAS BEEN TRANSPORTED DIRECTLY FROM THE FORMER INTO THE LATTER. 

18 U.S.C. (1940 ED.)  SEC.  101 IS THE FORERUNNER OF THAT PART OF
PRESENT SEC. 641 DEALING WITH RECEIVING STOLEN PROPERTY, AND HAS NO
APPLICATION TO THE PROBLEM AT HAND. 

THE HISTORY OF SEC. 641 DEMONSTRATES THAT IT WAS TO APPLY TO ACTS
WHICH CONSTITUTED LARCENY OR EMBEZZLEMENT AT COMMON LAW AND ALSO ACTS
WHICH SHADE INTO THOSE CRIMES BUT WHICH, MOST STRICTLY CONSIDERED,
MIGHT NOT BE FOUND TO FIT THEIR FIXED DEFINITIONS.  IT IS ALSO
PERTINENT TO NOTE THAT IT RENDERS ONE SUBJECT TO ITS PENALTY WHO
"KNOWINGLY CONVERTS TO HIS OWN USE" PROPERTY OF THE UNITED STATES.  THE
WORD "CONVERTS" DOES NOT APPEAR IN ANY OF ITS PREDECESSORS.  18 U.S.C.
(1940 ED.)  SEC.  82 IS APPLICABLE TO ONE WHO "TAKES FOR HIS OWN USE
...  WITH INTENT TO STEAL OR PURLOIN  ...  ."  18 U.S.C. (1940 ED.) 
SEC.  87 USES THE WORDS "KNOWINGLY APPLY TO HIS OWN USE."  NEITHER 18
U.S.C. (1940 ED.)  SECS.  99, 100, NOR 101 HAS ANY WORDS RESEMBLING
"KNOWINGLY CONVERTS TO HIS OWN USE."  THE 1948 REVISION WAS NOT
INTENDED TO CREATE NEW CRIMES BUT TO RECODIFY THOSE THEN IN EXISTENCE. 
WE FIND NO SUGGESTION THAT A GUILTY INTENT WAS NOT A PART OF EACH CRIME
NOW EMBODIED IN SEC. 641. 

FN29  18 U.S.C. SECS. 1, 641. 

FN30  HAD THE INDICTMENT BEEN LIMITED TO A CHARGE IN THE WORDS OF THE
STATUTE, IT WOULD HAVE BEEN DEFECTIVE IF, IN THE LIGHT OF THE COMMON
LAW, THE STATUTE ITSELF FAILED TO SET FORTH EXPRESSLY, FULLY, AND
CLEARLY ALL ELEMENTS NECESSARY TO CONSTITUTE THE OFFENSE.  UNITED
STATES V. CARLL, 105 U.S. 611. 

FN31  HARKER V. DEMENT, 9 GILL (MD.)  7, 52 AM. DEC. 670 (1850);
RAILROAD CO. V. O'DONNELL, 49 OHIO ST. 489, 32 N.E. 476 (1892).  THE
RATIONALE UNDERLYING SUCH CASES IS THAT WHEN ONE CLEARLY ASSUMES THE
RIGHTS OF OWNERSHIP OVER PROPERTY OF ANOTHER NO PROOF OF INTENT TO
CONVERT IS NECESSARY.   IT HAS EVEN BEEN HELD THAT ONE MAY BE HELD
LIABLE IN CONVERSION EVEN THOUGH HE REASONABLY SUPPOSED THAT HE HAD A
LEGAL RIGHT TO THE PROPERTY IN QUESTION.  ROW V. HOME SAV. BANK, 306
MASS. 522, 29 N.E.2D 552 (1940).  FOR OTHER CASES IN THE SAME VEIN, SEE
THOSE COLLECTED IN 53 AM. JUR.  852-854.  THESE AUTHORITIES LEAVE NO
DOUBT THAT MORISSETTE COULD BE HELD LIABLE FOR A CIVIL CONVERSION FOR
HIS TAKING OF THE PROPERTY HERE INVOLVED, AND THE INSTRUCTIONS TO THE
JURY MIGHT HAVE BEEN APPROPRIATE IN SUCH A CIVIL ACTION.  THIS ASSUMES
OF COURSE THAT ACTUAL ABANDONMENT WAS NOT PROVEN, A MATTER WHICH
PETITIONER SHOULD BE ALLOWED TO PROVE IF HE CAN. 

FN32 THE LARCENY ACT OF 1916, 6&7 GEO. V, C. 50, AN ACT "TO
CONSOLIDATE AND SIMPLIFY THE LAW RELATING TO LARCENY TRIABLE ON
INDICTMENT AND KINDRED OFFENCES," PROVIDES: 

"1.  FOR THE PURPOSES OF THIS ACT: 

"(1)  A PERSON STEALS WHO, WITHOUT THE CONSENT OF THE OWNER,
FRAUDULENTLY AND WITHOUT A CLAIM OF RIGHT MADE IN GOOD FAITH, TAKES AND
CARRIES AWAY ANYTHING CAPABLE OF BEING STOLEN WITH INTENT, AT THE TIME
OF SUCH TAKING, PERMANENTLY TO DEPRIVE THE OWNER THEREOF: 

"PROVIDED THAT A PERSON MAY BE GUILTY OF STEALING ANY SUCH THING
NOTWITHSTANDING THAT HE HAS LAWFUL POSSESSION THEREOF, IF, BEING A
BAILEE OR PART OWNER THEREOF, HE FRAUDULENTLY CONVERTS THE SAME TO HIS
OWN USE OR THE USE OF ANY PERSON OTHER THAN THE OWNER  ...  ." 

FOR THE GROWTH AND DEVELOPMENT OF THE CRIME OF LARCENY IN ENGLAND,
SEE 2 RUSSELL ON CRIME (10TH ED., TURNER, 1950), 1037-1222, FROM WHICH
THE MATERIAL ABOVE WAS TAKEN. 

FN33  N.Y. PENAL LAW, SEC. 1290, DEFINES LARCENY AS FOLLOWS: 

"A PERSON WHO, WITH THE INTENT TO DEPRIVE OR DEFRAUD ANOTHER OF THE
USE AND BENEFIT OF PROPERTY OR TO APPROPRIATE THE SAME TO THE USE OF
THE TAKER, OR OF ANY OTHER PERSON OTHER THAN THE TRUE OWNER, WRONGFULLY
TAKES, OBTAINS OR WITHHOLDS, BY ANY MEANS WHATEVER, FROM THE POSSESSION
OF THE TRUE OWNER OR OF ANY OTHER PERSON ANY MONEY, PERSONAL PROPERTY,
THING IN ACTION, EVIDENCE OF DEBT OR CONTRACT, OR ARTICLE OF VALUE OF
ANY KIND, STEALS SUCH PROPERTY AND IS GUILTY OF LARCENY." 

THE SAME SECTION PROVIDES FURTHER THAT IT SHALL BE NO DEFENSE TO A
PROSECUTION THAT: 

"2.  THE ACCUSED IN THE FIRST INSTANCE OBTAINED POSSESSION OF, OR
TITLE TO, SUCH PROPERTY LAWFULLY, PROVIDED HE SUBSEQUENTLY WRONGFULLY
WITHHELD OR APPROPRIATED SUCH PROPERTY TO HIS OWN USE OR THE USE OF ANY
PERSON NOT ENTITLED TO THE USE AND BENEFIT OF SUCH PROPERTY  ...  ." 

THE HISTORICAL NOTE TO THAT SECTION DISCLOSES THAT IT REPRESENTS AN
ATTEMPT TO ABOLISH THE DISTINCTIONS BETWEEN KINDS OF LARCENIES.  LAWS
1942, C. 732, SEC. 1, PROVIDED: 

"IT IS HEREBY DECLARED AS THE PUBLIC POLICY OF THE STATE THAT THE
BEST INTERESTS OF THE PEOPLE OF THE STATE WILL BE SERVED, AND CONFUSION
AND INJUSTICE AVOIDED, BY ELIMINATING AND ABOLISHING THE DISTINCTIONS
WHICH HAVE HITHERTO DIFFERENTIATED ONE SORT OF THEFT FROM ANOTHER, EACH
OF WHICH, UNDER SECTION TWLEVE HUNDRED AND NINETY OF THE PENAL LAW, WAS
DENOMINATED A LARCENY, TO WIT:  COMMON LAW LARCENY BY ASPORTATION,
COMMON LAW LARCENY BY TRICK AND DEVICE, OBTAINING PROPERTY BY FALSE
PRETENSES, AND EMBEZZLEMENT." 

FN34  CF. MORGAN, INSTRUCTING THE JURY UPON PRESUMPTIONS AND BURDEN
OF PROOF, 47 HARV.  L. REV. 59; MORGAN, SOME OBSERVATIONS CONCERNING
PRESUMPTION, 44 HARV. L. REV. 906. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












UNITED STATES V. HALSETH 342 U.S. 277 


NO. 91.  ARGUED NOVEMBER 28, 1951 - DECIDED JANUARY 7, 1952 - AFFIRMED. 


IN SEC. 213 OF THE CRIMINAL CODE OF 1909, 18 U.S.C. (1946 ED.)  SEC. 
336, WHICH FORBIDS THE MAILING OF ANY LETTER, PACKAGE, POSTAL CARD, OR
CIRCULAR "CONCERNING ANY LOTTERY" OR SIMILAR SCHEME, THE WORDS
"CONCERNING ANY LOTTERY" MEAN AN EXISTING, GOING LOTTERY OR GAMBLING
SCHEME; AND THE SECTION IS NOT APPLICABLE TO THE MAILING OF A
PUNCHBOARD WITH A LETTER SUGGESTING HOW IT MIGHT BE USED AND AN ORDER
BLANK FOR ORDERING MERCHANDISE TO BE USED FOR PRIZES, WHEN NEITHER THE
SENDER NOR THE ADDRESSEE WAS ENGAGED IN THE OPERATION OF A LOTTERY OR
SIMILAR SCHEME.  PP. 277-281. 

UNITED STATES V. HALSETH. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF WISCONSIN. 

THE DISTRICT COURT DISMISSED AN INDICTMENT OF RESPONDENT FOR
VIOLATION OF SEC. 213 OF THE CRIMINAL CODE OF 1909, 18 U.S.C. (1946
ED.)  SEC.  336.  ON DIRECT APPEAL TO THIS COURT UNDER 18 U.S.C. SEC.
3731, AFFIRMED, P. 281. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

APPELLEE WAS INDICTED ON EIGHT COUNTS IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN FOR VIOLATION OF SEC. 213 OF THE CRIMINAL
CODE OF 1909, 35 STAT. 1129-1130, 18 U.S.C. SEC. 336.  THE DISTRICT
COURT GRANTED APPELLEE'S MOTION TO DISMISS THE INDICTMENT, AND THE
UNITED STATES APPEALED DIRECTLY TO THIS COURT, PURSUANT TO 18 U.S.C.
(SUPP. IV) SEC. 3731.  THE PERTINENT PROVISIONS OF THE STATUTE UPON
WHICH THE INDICTMENT WAS BASED WERE AS FOLLOWS: 

"NO LETTER, PACKAGE, POSTAL CARD, OR CIRCULAR CONCERNING ANY LOTTERY
...  OR SIMILAR SCHEME OFFERING PRIZES DEPENDENT IN WHOLE OR IN PART
UPON LOT OR CHANCE  ...  SHALL BE DEPOSITED IN OR CARRIED BY THE MAILS
...  .  WHOEVER SHALL KNOWINGLY DEPOSIT  ...  ANYTHING TO BE  ...
DELIVERED BY MAIL IN VIOLATION OF  ...  THIS SECTION  ...  SHALL BE
FINED  ...  OR IMPRISONED  ...  ." 

THE FIRST COUNT OF THE INDICTMENT CHARGED THAT: 

"PERRY HALSETH, KNOWINGLY, WILFULLY AND UNLAWFULLY DID CAUSE TO BE
DELIVERED BY MAIL TO MISS LUCIA BROWN A CIRCULAR LETTER CONCERNING A
LOTTERY OR SCHEME OFFERING A PRIZE DEPENDENT UPON LOT OR CHANCE  ...
." 

THE OTHER COUNTS WERE IDENTICAL EXCEPT AS TO THE NAME OF THE
ADDRESSEE AND THE POINT OF DELIVERY. 

FOR THE PURPOSE OF THE MOTION TO DISMISS, THE PARTIES STIPULATED AS
TO PARTICULARITY THAT A LETTER, A CIRCULAR, AN ORDER BLANK, AND A
PUNCHBOARD WERE SENT TO THE ADDRESSEE BY MAIL.  THE LETTER SUBTLY
INDICATED HOW THE ADDRESSEE MIGHT OBTAIN A RADIO FREE BY SELLING THE
CHANCES ON THE PUNCHBOARD AND HOW CERTAIN LUCKY NUMBERS WOULD REWARD
THE PURCHASER WITH PRIZES OF A RADIO AND THREE ROLPOINT BALL PENS. 
(FN1)  THE PUNCHBOARD CONTAINED AN ILLUSTRATION OF MERCHANDISE TO BE
WON.  NO MERCHANDISE WAS SENT WITH THE MAILING.  IF THE ADDRESSEE
DESIRED TO PUT THE SCHEME INTO OPERATION, THE MERCHANDISE COULD BE
OBTAINED BY SENDING THE FULL AMOUNT IN CASH, OR BY A DOWN PAYMENT OR
$2.00 WITH THE ORDER AND THE BALANCE PAYABLE ON DELIVERY, OR BY A
C.O.D. SHIPMENT.  THE PUNCHBOARD ALSO INFORMED THE ADDRESSEE THAT
MERCHANDISE COULD BE "PURCHASED" FROM APPELLEE AT ANY TIME. 

THE DISTRICT COURT HELD THAT EVEN IF THESE STIPULATED FACTS HAD BEEN
ALLEGED IN THE INDICTMENT AND ACCEPTED AS TRUE FOR THE PURPOSE OF THE
MOTION TO DISMISS, STILL THE INDICTMENT DID NOT STATE AN OFFENSE
BECAUSE THE MAILING DID NOT CONCERN AN EXISTING LOTTERY OR SCHEME TO
OBTAIN PRIZES BY LOT OR CHANCE.  THE QUESTION THEREFORE IS WHETHER THE
MAILING OF GAMBLING PARAPHERNALIA THAT MAY BE USED TO SET UP A LOTTERY
OR SIMILAR SCHEME IS A VIOLATION OF THE STATUTE. 

THE STATUTE ON WHICH THE INDICTMENT IS BASED WAS PASSED IN 1909, AND
SINCE THAT TIME NO REPORTED CASE HAS BEEN FOUND CONSTRUING IT.
HOWEVER, IN CASES CONSTRUING ANALOGOUS LOTTERY STATUTES, OLD IN OUR
LAW, THE COURTS HAVE HELD THAT THEY APPLY ONLY TO EXISTING LOTTERIES OR
SCHEMES.  (FN2) 

IN FRANCE V. UNITED STATES, 164 U.S. 676, A LOTTERY HAD BEEN
CONDUCTED IN KENTUCKY.  AFTER THE DRAWING WAS OVER, PERSONS WHO WERE
INTERESTED IN THE OUTCOME AND WHO HAD TAKEN MONEY TO THE OPERATORS OF
THE LOTTERY FOR CHANCES PURCHASED WERE RETURNING ACROSS THE STATE LINE
TO OHIO; THEY HAD IN THEIR POSSESSION THE OFFICIAL PRINT OF THE LUCKY
NUMBER THAT HAD BEEN DRAWN, SLIPS THAT CORRESPONDED WITH THE LUCKY
NUMBER, KNOWN AS "HIT SLIPS" AND MONEY WHICH WAS TO BE GIVEN TO
WINNERS.   THEY WERE ARRESTED AND CHARGED WITH A CONSPIRACY TO VIOLATE
A STATUTE WHICH PROHIBITED THE CARRYING ACROSS STATE LINES OF "ANY
PAPER, CERTIFICATE, OR INSTRUMENT PURPORTING TO BE OR REPRESENT A
TICKET, CHANCE, SHARE, OR INTEREST IN OR DEPENDENT UPON THE EVENT OF A
LOTTERY  ...  ."  (28 STAT. 963).  IN HOLDING THAT THE DEFENDANTS HAD
NOT VIOLATED THE STATUTE THIS COURT SAID: 

"THE LOTTERY HAD ALREADY BEEN DRAWN; THE PAPERS CARRIED BY THE
MESSENGERS WERE NOT THEN DEPENDENT UPON THE EVENT OF ANY LOTTERY  ...
. 

"THERE IS NO CONTRADICTION IN THE TESTIMONY, AND THE GOVERNMENT
ADMITS AND ASSUMES THAT THE DRAWING IN REGARD TO WHICH THESE PAPERS
CONTAINED ANY INFORMATION HAD ALREADY TAKEN PLACE IN KENTUCKY, AND IT
WAS THE RESULT OF THAT DRAWING ONLY THAT WAS ON ITS WAY IN THE HANDS OF
MESSENGERS TO THE AGENTS OF THE LOTTERY IN CINCINNATI. 

"THE STATUTE DOES NOT COVER THE TRANSACTION, AND HOWEVER
REPREHENSIBLE THE ACTS OF THE PLAINTIFFS IN ERROR MAY BE THOUGHT TO BE,
WE CANNOT SUSTAIN A CONVICTION ON THAT GROUND.  ALTHOUGH THE OBJECTION
IS A NARROW ONE, YET THE STATUTE BEING HIGHLY PENAL, RENDERING ITS
VIOLATOR LIABLE TO FINE AND IMPRISONMENT, WE ARE COMPELLED TO CONSTRUE
IT STRICTLY.  FULL EFFECT IS GIVEN TO THE STATUTE BY HOLDING THAT THE
LANGUAGE APPLIES ONLY TO THAT KIND OF A PAPER WHICH DEPENDS UPON A
LOTTERY THE DRAWING OF WHICH HAS NOT YET TAKEN PLACE, AND WHICH PAPER
PURPORTS TO BE A CERTIFICATE, ETC., AS DESCRIBED IN THE ACT.  IF IT BE
URGED THAT THE ACT OF THESE PLAINTIFFS IN ERROR IS WITHIN THE REASON OF
THE STATUTE, THE ANSWER MUST BE THAT IT IS SO FAR OUTSIDE OF ITS
LANGUAGE THAT TO INCLUDE IT WITHIN THE STATUTE WOULD BE TO LEGISLATE
AND NOT TO CONSTRUE LEGISLATION."  164 U.S. AT 682-683. 

IN THE INSTANT CASE, TOO, THE STATUTE IS PENAL AND MUST BE STRICTLY
CONSTRUED.  WE HOLD THAT THE WORDS "CONCERNING ANY LOTTERY" MEAN AN
EXISTING, GOING LOTTERY OR GAMBLING SCHEME.  THE MAILING DOES NOT
PURPORT TO CONCERN ANY EXISTING LOTTERY, AND NEITHER THE ADDRESSEE NOR
THE APPELLEE WAS ENGAGED IN THE OPERATION OF A LOTTERY OR SIMILAR
SCHEME.  THE LOTTERY OR SCHEME WOULD COME INTO EXISTENCE ONLY IF THE
ADDRESSEE PUT THE PARAPHERNALIA INTO OPERATION.  THE MERE MAILING OF
INFORMATION CONCERNING SUCH SCHEMES AND HOW THEY MAY BE SET UP OR THE
MAILING OF PARAPHERNALIA FOR SUCH SCHEMES DOES NOT VIOLATE THE STATUTE
IN QUESTION.  IN FACT, THE POST OFFICE DEPARTMENT ITSELF DID NOT REGARD
THE STATUTE AS COVERING THE ACTIVITY COMPLAINED OF HERE.  BEGINNING IN
1915, THE DEPARTMENT HAS SOUGHT TO AMEND THE STATUTE WITHOUT SUCCESS. 
(FN3) 

CONGRESS HAS HAD BEFORE IT MANY TIMES THE QUESTION OF WHAT GAMBLING
DEVICES AND PARAPHERNALIA IT WOULD EXCLUDE FROM THE MAILS AND
INTERSTATE COMMERCE, (FN4) AND ONLY RECENTLY HAS IT PASSED AN ACT
CONCERNING THE SUBJECT.  ACT OF JANUARY 2, 1951, P.L. NO. 906, 64 STAT.
1134, 15 U.S.C. SEC. 1171.  IF PUNCHBOARDS ARE TO BE ADDED TO THE
CATEGORY OF DEVICES TO BE EXCLUDED, IT IS FOR CONGRESS TO MAKE THE
ADDITION. 

THE JUDGMENT IS AFFIRMED. 

FN1  ACTUALLY, FOUR COUNTS WERE BASED ON MATERIAL RELATING TO RADIOS
AND PENS AND FOUR TO CAMERAS AND A TELESCOPE; BUT SINCE THE NATURE OF
THE MAILINGS WAS THE SAME, WE CONSIDER ONLY THE MATERIAL RELATING TO
RADIOS AND PENS. 

FN2 FRANCE V. UNITED STATES, 164 U.S. 676; FRANCIS V. UNITED STATES,
188 U.S. 375; UNITED STATES V. IRVINE, 156 F. 376. 

FN3  REPORT OF THE POSTMASTER GENERAL 72 (1915). 

FN4  HEARINGS OF APRIL, MAY AND JUNE 1950, HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON S. 3357 AND H.R. 6736, 81ST CONG.,
2D SESS. 259-260. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BURTON DISSENT. 
..END :





ROCHIN V. CALIFORNIA 342 U.S. 165 


NO. 83.  ARGUED OCTOBER 16, 1951 - DECIDED JANUARY 2, 1952 - 101 CAL.
APP. 2D 140, 225 P.2D 1, REVERSED. 


HAVING "SOME INFORMATION" THAT PETITIONER WAS SELLING NARCOTICS, THREE
STATE OFFICERS ENTERED HIS HOME AND FORCED THEIR WAY INTO THE BEDROOM
OCCUPIED BY HIM AND HIS WIFE.  WHEN ASKED ABOUT TWO CAPSULES LYING ON A
BEDSIDE TABLE, PETITIONER PUT THEM IN HIS MOUTH.  AFTER AN UNSUCCESSFUL
STRUGGLE TO EXTRACT THEM BY FORCE, THE OFFICERS TOOK PETITIONER TO A
HOSPITAL, WHERE AN EMETIC WAS FORCED INTO HIS STOMACH AGAINST HIS
WILL.  HE VOMITED TWO CAPSULES WHICH WERE FOUND TO CONTAIN MORPHINE. 
THESE WERE ADMITTED IN EVIDENCE OVER HIS OBJECTION AND HE WAS CONVICTED
IN A STATE COURT OF VIOLATING A STATE LAW FORBIDDING POSSESSION OF
MORPHINE.  HELD:  THE CONVICTION IS REVERSED, BECAUSE IT WAS OBTAINED
BY METHODS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 166-174. 

ROCHIN V. CALIFORNIA. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL FOR THE SECOND APPELLATE
DISTRICT OF CALIFORNIA. 

IN A CALIFORNIA STATE COURT, PETITIONER WAS CONVICTED OF VIOLATING A
STATE LAW FORBIDDING THE POSSESSION OF MORPHINE.  THE DISTRICT COURT OF
APPEAL AFFIRMED.  101 CAL. APP. 2D 140, 225 P.2D 1.  THE STATE SUPREME
COURT DENIED A REVIEW.  THIS COURT GRANTED CERTIORARI.  341 U.S. 939. 
REVERSED, P. 174. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

HAVING "SOME INFORMATION THAT (THE PETITIONER HERE) WAS SELLING
NARCOTICS," THREE DEPUTY SHERIFFS OF THE COUNTY OF LOS ANGELES, ON THE
MORNING OF JULY 1, 1949, MADE FOR THE TWO-STORY DWELLING HOUSE IN WHICH
ROCHIN LIVED WITH HIS MOTHER, COMMON-LAW WIFE, BROTHERS AND SISTERS. 
FINDING THE OUTSIDE DOOR OPEN, THEY ENTERED AND THEN FORCED OPEN THE
DOOR TO ROCHIN'S ROOM ON THE SECOND FLOOR.  INSIDE THEY FOUND
PETITIONER SITTING PARTLY DRESSED ON THE SIDE OF THE BED, UPON WHICH
HIS WIFE WAS LYING.  ON A "NIGHT STAND" BESIDE THE BED THE DEPUTIES
SPIED TWO CAPSULES.  WHEN ASKED "WHOSE STUFF IS THIS?"  ROCHIN SEIZED
THE CAPSULES AND PUT THEM IN HIS MOUTH.  A STRUGGLE ENSUED, IN THE
COURSE OF WHICH THE THREE OFFICERS "JUMPED UPON HIM" AND ATTEMPTED TO
EXTRACT THE CAPSULES.  THE FORCE THEY APPLIED PROVED UNAVAILING AGAINST
ROCHIN'S RESISTANCE.  HE WAS HANDCUFFED AND TAKEN TO A HOSPITAL.  AT
THE DIRECTION OF ONE OF THE OFFICERS A DOCTOR FORCED AN EMETIC SOLUTION
THROUGH A TUBE IN ROCHIN'S STOMACH AGAINST HIS WILL.  THIS "STOMACH
PUMPING" PRODUCED VOMITING.  IN THE VOMITED MATTER WERE FOUND TWO
CAPSULES WHICH PROVED TO CONTAIN MORPHINE. 

ROCHIN WAS BROUGHT TO TRIAL BEFORE A CALIFORNIA SUPERIOR COURT,
SITTING WITHOUT A JURY, ON THE CHARGE OF POSSESSING "A PREPARATION OF
MORPHINE" IN VIOLATION OF THE CALIFORNIA HEALTH AND SAFETY CODE, 1947,
SEC. 11,500.  ROCHIN WAS CONVICTED AND SENTENCED TO SIXTY DAYS'
IMPRISONMENT.  THE CHIEF EVIDENCE AGAINST HIM WAS THE TWO CAPSULES. 
THEY WERE ADMITTED OVER PETITIONER'S OBJECTION, ALTHOUGH THE MEANS OF
OBTAINING THEM WAS FRANKLY SET FORTH IN THE TESTIMONY BY ONE OF THE
DEPUTIES, SUBSTANTIALLY AS HERE NARRATED. 

ON APPEAL, THE DISTRICT COURT OF APPEAL AFFIRMED THE CONVICTION,
DESPITE THE FINDING THAT THE OFFICERS "WERE GUILTY OF UNLAWFULLY
BREAKING INTO AND ENTERING DEFENDANT'S ROOM AND WERE GUILTY OF
UNLAWFULLY ASSAULTING AND BATTERING DEFENDANT WHILE IN THE ROOM," AND
"WERE GUILTY OF UNLAWFULLY ASSAULTING, BATTERING, TORTURING AND FALSELY
IMPRISONING THE DEFENDANT AT THE ALLEGED HOSPITAL."  101 CAL. APP. 2D
140, 143, 225 P.2D 1, 3.  ONE OF THE THREE JUDGES, WHILE FINDING THAT
"THE RECORD IN THIS CASE REVEALS A SHOCKING SERIES OF VIOLATIONS OF
CONSTITUTIONAL RIGHTS," CONCURRED ONLY BECAUSE HE FELT BOUND BY
DECISIONS OF HIS SUPREME COURT.  THESE, HE ASSERTED, "HAVE BEEN LOOKED
UPON BY LAW ENFORCEMENT OFFICERS AS AN ENCOURAGEMENT, IF NOT AN
INVITATION, TO THE COMMISSION OF SUCH LAWLESS ACTS."  IBID.  THE
SUPREME COURT OF CALIFORNIA DENIED WITHOUT OPINION ROCHIN'S PETITION
FOR A HEARING.  (FN1)  TWO JUSTICES DISSENTED FROM THIS DENIAL, AND IN
DOING SO EXPRESSED THEMSELVES THUS:  "  ...  A CONVICTION WHICH RESTS
UPON EVIDENCE OF INCRIMINATING OBJECTS OBTAINED FROM THE BODY OF THE
ACCUSED BY PHYSICAL ABUSE IS AS INVALID AS A CONVICTION WHICH RESTS
UPON A VERBAL CONFESSION EXTRACTED FROM HIM BY SUCH ABUSE  ...  .  HAD
THE EVIDENCE FORCED FROM THE DEFENDANT'S LIPS CONSISTED OF AN ORAL
CONFESSION THAT HE ILLEGALLY POSSESSED A DRUG  ...  HE WOULD HAVE THE
PROTECTION OF THE RULE OF LAW WHICH EXCLUDES COERCED CONFESSIONS FROM
EVIDENCE.  BUT BECAUSE THE EVIDENCE FORCED FROM HIS LIPS CONSISTED OF
REAL OBJECTS THE PEOPLE OF THIS STATE ARE PERMITTED TO BASE A
CONVICTION UPON IT.  (WE) FIND NO VALID GROUND OF DISTINCTION BETWEEN A
VERBAL CONFESSION EXTRACTED BY PHYSICAL ABUSE AND A CONFESSION WRESTED
FROM DEFENDANT'S BODY BY PHYSICAL ABUSE."  101 CAL. APP. 2D 143, 149
150, 225 P.2D 913, 917-918. 

THIS COURT GRANTED CERTIORARI, 341 U.S. 939, BECAUSE A SERIOUS
QUESTION IS RAISED AS TO THE LIMITATIONS WHICH THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT IMPOSES ON THE CONDUCT OF CRIMINAL
PROCEEDINGS BY THE STATES. 

IN OUR FEDERAL SYSTEM THE ADMINISTRATION OF CRIMINAL JUSTICE IS
PREDOMINANTLY COMMITTED TO THE CARE OF THE STATES.  THE POWER TO DEFINE
CRIMES BELONGS TO CONGRESS ONLY AS AN APPROPRIATE MEANS OF CARRYING
INTO EXECUTION ITS LIMITED GRANT OF LEGISLATIVE POWERS.  U.S. CONST.,
ART. I, SEC. 8, CL. 18.  BROADLY SPEAKING, CRIMES IN THE UNITED STATES
ARE WHAT THE LAWS OF THE INDIVIDUAL STATES MAKE THEM, SUBJECT TO THE
LIMITATIONS OF ART. I, SEC. 10, CL. 1, IN THE ORIGINAL CONSTITUTION,
PROHIBITING BILLS OF ATTAINDER AND EX POST FACTO LAWS, AND OF THE
THIRTEENTH AND FOURTEENTH AMENDMENTS. 

THESE LIMITATIONS, IN THE MAIN, CONCERN NOT RESTRICTIONS UPON THE
POWERS OF THE STATES TO DEFINE CRIME, EXCEPT IN THE RESTRICTED AREA
WHERE FEDERAL AUTHORITY HAS PREEMPTED THE FIELD, BUT RESTRICTIONS UPON
THE MANNER IN WHICH THE STATES MAY ENFORCE THEIR PENAL CODES. 
ACCORDINGLY, IN REVIEWING A STATE CRIMINAL CONVICTION UNDER A CLAIM OF
RIGHT GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
FROM WHICH IS DERIVED THE MOST FAR-REACHING AND MOST FREQUENT FEDERAL
BASIS OF CHALLENGING STATE CRIMINAL JUSTICE, "WE MUST BE DEEPLY MINDFUL
OF THE RESPONSIBILITIES OF THE STATES FOR THE ENFORCEMENT OF CRIMINAL
LAWS, AND EXERCISE WITH DUE HUMILITY OUR MERELY NEGATIVE FUNCTION IN
SUBJECTING CONVICTIONS FROM STATE COURTS TO THE VERY NARROW SCRUTINY
WHICH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AUTHORIZES." 
MALINSKI V. NEW YORK, 324 U.S. 401, 412, 418.  DUE PROCESS OF LAW,
"ITSELF A HISTORICAL PRODUCT," JACKMAN V. ROSENBAUM CO., 260 U.S. 22,
31, IS NOT TO BE TURNED INTO A DESTRUCTIVE DOGMA AGAINST THE STATES IN
THE ADMINISTRATION OF THEIR SYSTEMS OF CRIMINAL JUSTICE. 

HOWEVER, THIS COURT TOO HAS ITS RESPONSIBILITY.  REGARD FOR THE
REQUIREMENTS OF THE DUE PROCESS CLAUSE "INESCAPABLY IMPOSES UPON THIS
COURT AN EXERCISE OF JUDGMENT UPON THE WHOLE COURSE OF THE PROCEEDINGS
(RESULTING IN A CONVICTION) IN ORDER TO ASCERTAIN WHETHER THEY OFFEND
THOSE CANONS OF DECENCY AND FAIRNESS WHICH EXPRESS THE NOTIONS OF
JUSTICE OF ENGLISH-SPEAKING PEOPLES EVEN TOWARD THOSE CHARGED WITH THE
MOST HEINOUS OFFENSES."  MALINSKI V. NEW YORK, SUPRA, AT 416-417. 
THESE STANDARDS OF JUSTICE ARE NOT AUTHORITATIVELY FORMULATED ANYWHERE
AS THOUGH THEY WERE SPECIFICS.  DUE PROCESS OF LAW IS A SUMMARIZED
CONSTITUTIONAL GUARANTEE OF RESPECT FOR THOSE PERSONAL IMMUNITIES
WHICH, AS MR. JUSTICE CARDOZO TWICE WROTE FOR THE COURT, ARE "SO ROOTED
IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS
FUNDAMENTAL," SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105, OR ARE
"IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY."  PALKO V. CONNECTICUT,
302 U.S. 319, 325.  (FN2) 

THE COURT'S FUNCTION IN THE OBSERVANCE OF THIS SETTLED CONCEPTION OF
THE DUE PROCESS CLAUSE DOES NOT LEAVE US WITHOUT ADEQUATE GUIDES IN
SUBJECTING STATE CRIMINAL PROCEDURES TO CONSTITUTIONAL JUDGMENT.  IN
DEALING NOT WITH THE MACHINERY OF GOVERNMENT BUT WITH HUMAN RIGHTS, THE
ABSENCE OF FORMAL EXACTITUDE, OR WANT OF FIXITY OF MEANING, IS NOT AN
UNUSUAL OR EVEN REGRETTABLE ATTRIBUTE OF CONSTITUTIONAL PROVISIONS. 
WORDS BEING SYMBOLS DO NOT SPEAK WITHOUT A GLOSS.  ON THE ONE HAND THE
GLOSS MAY BE THE DEPOSIT OF HISTORY, WHEREBY A TERM GAINS TECHNICAL
CONTENT.  THUS THE REQUIREMENTS OF THE SIXTH AND SEVENTH AMENDMENTS FOR
TRIAL BY JURY IN THE FEDERAL COURTS HAVE A RIGID MEANING.  NO CHANGES
OR CHANCES CAN ALTER THE CONTENT OF THE VERBAL SYMBOL OF "JURY" - A
BODY OF TWELVE MEN WHO MUST REACH A UNANIMOUS CONCLUSION IF THE VERDICT
IS TO GO AGAINST THE DEFENDANT.  (FN3)  ON THE OTHER HAND, THE GLOSS OF
SOME OF THE VERBAL SYMBOLS OF THE CONSTITUTION DOES NOT GIVE THEM A
FIXED TECHNICAL CONTENT.  IT EXACTS A CONTINUING PROCESS OF
APPLICATION. 

WHEN THE GLOSS HAS THUS NOT BEEN FIXED BUT IS A FUNCTION OF THE
PROCESS OF JUDGMENT, THE JUDGMENT IS BOUND TO FALL DIFFERENTLY AT
DIFFERENT TIMES AND DIFFERENTLY AT THE SAME TIME THROUGH DIFFERENT
JUDGES.  EVEN MORE SPECIFIC PROVISIONS, SUCH AS THE GUARANTY OF FREEDOM
OF SPEECH AND THE DETAILED PROTECTION AGAINST UNREASONABLE SEARCHES AND
SEIZURES, HAVE INEVITABLY EVOKED AS SHARP DIVISIONS IN THIS COURT AS
THE LEAST SPECIFIC AND MOST COMPREHENSIVE PROTECTION OF LIBERTIES, THE
DUE PROCESS CLAUSE. 

THE VAGUE CONTOURS OF THE DUE PROCESS CLAUSE DO NOT LEAVE JUDGES AT
LARGE.  (FN4)  WE MAY NOT DRAW ON OUR MERELY PERSONAL AND PRIVATE
NOTIONS AND DISREGARD THE LIMITS THAT BIND JUDGES IN THEIR JUDICIAL
FUNCTION.  EVEN THOUGH THE CONCEPT OF DUE PROCESS OF LAW IS NOT FINAL
AND FIXED, THESE LIMITS ARE DERIVED FROM CONSIDERATIONS THAT ARE FUSED
IN THE WHOLE NATURE OF OUR JUDICIAL PROCESS.  SEE CARDOZO, THE NATURE
OF THE JUDICIAL PROCESS; THE GROWTH OF THE LAW; THE PARADOXES OF LEGAL
SCIENCE.  THESE ARE CONSIDERATIONS DEEPLY ROOTED IN REASON AND IN THE
COMPELLING TRADITIONS OF THE LEGAL PROFESSION.  THE DUE PROCESS CLAUSE
PLACES UPON THIS COURT THE DUTY OF EXERCISING A JUDGMENT, WITHIN THE
NARROW CONFINES OF JUDICIAL POWER IN REVIEWING STATE CONVICTIONS, UPON
INTERESTS OF SOCIETY PUSHING IN OPPOSITE DIRECTIONS. 

DUE PROCESS OF LAW THUS CONCEIVED IS NOT TO BE DERIDED AS RESORT TO A
REVIVAL OF "NATURAL LAW."  (FN5)  TO BELIEVE THAT THIS JUDICIAL
EXERCISE OF JUDGMENT COULD BE AVOIDED BY FREEZING "DUE PROCESS OF LAW"
AT SOME FIXED STAGE OF TIME OR THOUGHT IS TO SUGGEST THAT THE MOST
IMPORTANT ASPECT OF CONSTITUTIONAL ADJUDICATION IS A FUNCTION FOR
INANIMATE MACHINES AND NOT FOR JUDGES, FOR WHOM THE INDEPENDENCE
SAFEGUARDED BY ARTICLE III OF THE CONSTITUTION WAS DESIGNED AND WHO ARE
PRESUMABLY GUIDED BY ESTABLISHED STANDARDS OF JUDICIAL BEHAVIOR.  EVEN
CYBERNETICS HAS NOT YET MADE THAT HAUGHTY CLAIM.  TO PRACTICE THE
REQUISITE DETACHMENT AND TO ACHIEVE SUFFICIENT OBJECTIVITY NO DOUBT
DEMANDS OF JUDGES THE HABIT OF SELF-DISCIPLINE AND SELF-CRITICISM,
INCERTITUDE THAT ONE'S OWN VIEWS ARE INCONTESTABLE AND ALERT TOLERANCE
TOWARD VIEWS NOT SHARED.  BUT THESE ARE PRECISELY THE PRESUPPOSITIONS
OF OUR JUDICIAL PROCESS.  THEY ARE PRECISELY THE QUALITIES SOCIETY HAS
A RIGHT TO EXPECT FROM THOSE ENTRUSTED WITH ULTIMATE JUDICIAL POWER. 

RESTRAINTS ON OUR JURISDICTION ARE SELF-IMPOSED ONLY IN THE SENSE
THAT THERE IS FROM OUR DECISIONS NO IMMEDIATE APPEAL SHORT OF
IMPEACHMENT OR CONSTITUTIONAL AMENDMENT.  BUT THAT DOES NOT MAKE DUE
PROCESS OF LAW A MATTER OF JUDICIAL CAPRICE.  THE FACULTIES OF THE DUE
PROCESS CLAUSE MAY BE INDEFINITE AND VAGUE, BUT THE MODE OF THEIR
ASCERTAINMENT IS NOT SELF-WILLED.  IN EACH CASE "DUE PROCESS OF LAW"
REQUIRES AN EVALUATION BASED ON A DISINTERESTED INQUIRY PURSUED IN THE
SPIRIT OF SCIENCE, ON A BALANCED ORDER OF FACTS EXACTLY AND FAIRLY
STATED, ON THE DETACHED CONSIDERATION OF CONFLICTING CLAIMS, SEE HUDSON
COUNTY WATER CO. V. MCCARTER, 209 U.S. 349, 355, ON A JUDGMENT NOT AD
HOC AND EPISODIC BUT DULY MINDFUL OF RECONCILING THE NEEDS BOTH OF
CONTINUITY AND OF CHANGE IN A PROGRESSIVE SOCIETY. 

APPLYING THESE GENERAL CONSIDERATIONS TO THE CIRCUMSTANCES OF THE
PRESENT CASE, WE ARE COMPELLED TO CONCLUDE THAT THE PROCEEDINGS BY
WHICH THIS CONVICTION WAS OBTAINED DO MORE THAN OFFEND SOME FASTIDIOUS
SQUEAMISHNESS OR PRIVATE SENTIMENTALISM ABOUT COMBATTING CRIME TOO
ENERGETICALLY.  THIS IS CONDUCT THAT SHOCKS THE CONSCIENCE.  ILLEGALLY
BREAKING INTO THE PRIVACY OF THE PETITIONER, THE STRUGGLE TO OPEN HIS
MOUTH AND REMOVE WHAT WAS THERE, THE FORCIBLE EXTRACTION OF HIS
STOMACH'S CONTENTS - THIS COURSE OF PROCEEDING BY AGENTS OF GOVERNMENT
TO OBTAIN EVIDENCE IS BOUND TO OFFEND EVEN HARDENED SENSIBILITIES. 
THEY ARE METHODS TOO CLOSE TO THE RACK AND THE SCREW TO PERMIT OF
CONSTITUTIONAL DIFFERENTIATION. 

IT HAS LONG SINCE CEASED TO BE TRUE THAT DUE PROCESS OF LAW IS
HEEDLESS OF THE MEANS BY WHICH OTHERWISE RELEVANT AND CREDIBLE EVIDENCE
IS OBTAINED.  THIS WAS NOT TRUE EVEN BEFORE THE SERIES OF RECENT CASES
ENFORCED THE CONSTITUTIONAL PRINCIPLE THAT THE STATES MAY NOT BASE
CONVICTIONS UPON CONFESSIONS, HOWEVER MUCH VERIFIED, OBTAINED BY
COERCION.  THESE DECISIONS ARE NOT ARBITRARY EXCEPTIONS TO THE
COMPREHENSIVE RIGHT OF STATES TO FASHION THEIR OWN RULES OF EVIDENCE
FOR CRIMINAL TRIALS.  THEY ARE NOT SPORTS IN OUR CONSTITUTIONAL LAW BUT
APPLICATIONS OF A GENERAL PRINCIPLE.  THEY ARE ONLY INSTANCES OF THE
GENERAL REQUIREMENT THAT STATES IN THEIR PROSECUTIONS RESPECT CERTAIN
DECENCIES OF CIVILIZED CONDUCT.  DUE PROCESS OF LAW, AS A HISTORIC AND
GENERATIVE PRINCIPLE, PRECLUDES DEFINING, AND THEREBY CONFINING, THESE
STANDARDS OF CONDUCT MORE PRECISELY THAN TO SAY THAT CONVICTIONS CANNOT
BE BROUGHT ABOUT BY METHODS THAT OFFEND "A SENSE OF JUSTICE."  SEE MR.
CHIEF JUSTICE HUGHES, SPEAKING FOR A UNANIMOUS COURT IN BROWN V.
MISSISSIPPI, 297 U.S. 278, 285-286.  IT WOULD BE A STULTIFICATION OF
THE RESPONSIBILITY WHICH THE COURSE OF CONSTITUTIONAL HISTORY HAS CAST
UPON THIS COURT TO HOLD THAT IN ORDER TO CONVICT A MAN THE POLICE
CANNOT EXTRACT BY FORCE WHAT IS IN HIS MIND BUT CAN EXTRACT WHAT IS IN
HIS STOMACH.  (FN6)    TO ATTEMPT IN THIS CASE TO DISTINGUISH WHAT
LAWYERS CALL "REAL EVIDENCE" FROM VERBAL EVIDENCE IS TO IGNORE THE
REASONS FOR EXCLUDING COERCED CONFESSIONS.  USE OF INVOLUNTARY VERBAL
CONFESSIONS IN STATE CRIMINAL TRIALS IS CONSTITUTIONALLY OBNOXIOUS NOT
ONLY BECAUSE OF THEIR UNRELIABILITY.  THEY ARE INADMISSIBLE UNDER THE
DUE PROCESS CLAUSE EVEN THOUGH STATEMENTS CONTAINED IN THEM MAY BE
INDEPENDENTLY ESTABLISHED AS TRUE.  COERCED CONFESSIONS OFFEND THE
COMMUNITY'S SENSE OF FAIR PLAY AND DECENCY.  SO HERE, TO SANCTION THE
BRUTAL CONDUCT WHICH NATURALLY ENOUGH WAS CONDEMNED BY THE COURT WHOSE
JUDGMENT IS BEFORE US, WOULD BE TO AFFORD BRUTALITY THE CLOAK OF LAW. 
NOTHING WOULD BE MORE CALCULATED TO DISCREDIT LAW AND THEREBY TO
BRUTALIZE THE TEMPER OF A SOCIETY.    IN DECIDING THIS CASE WE DO NOT
HEEDLESSLY BRING INTO QUESTION DECISIONS IN MANY STATES DEALING WITH
ESSENTIALLY DIFFERENT, EVEN IF RELATED, PROBLEMS.  WE THEREFORE PUT TO
ONE SIDE CASES WHICH HAVE ARISEN IN THE STATE COURTS THROUGH USE OF
MODERN METHODS AND DEVICES FOR DISCOVERING WRONGDOERS AND BRINGING THEM
TO BOOK.  IT DOES NOT FAIRLY REPRESENT THESE DECISIONS TO SUGGEST THAT
THEY LEGALIZE FORCE SO BRUTAL AND SO OFFENSIVE TO HUMAN DIGNITY IN
SECURING EVIDENCE FROM A SUSPECT AS IS REVEALED BY THIS RECORD.  INDEED
THE CALIFORNIA SUPREME COURT HAS NOT SANCTIONED THIS MODE OF SECURING A
CONVICTION.  IT MERELY EXERCISED ITS DISCRETION TO DECLINE A REVIEW OF
THE CONVICTION.  ALL THE CALIFORNIA JUDGES WHO HAVE EXPRESSED
THEMSELVES IN THIS CASE HAVE CONDEMNED THE CONDUCT IN THE STRONGEST
LANGUAGE. 

WE ARE NOT UNMINDFUL THAT HYPOTHETICAL SITUATIONS CAN BE CONJURED UP,
SHADING IMPERCEPTIBLY FROM THE CIRCUMSTANCES OF THIS CASE AND BY
GRADATIONS PRODUCING PRACTICAL DIFFERENCES DESPITE SEEMINGLY LOGICAL
EXTENSIONS.  BUT THE CONSTITUTION IS "INTENDED TO PRESERVE PRACTICAL
AND SUBSTANTIAL RIGHTS, NOT TO MAINTAIN THEORIES."  DAVIS V. MILLS, 194
U.S. 451, 457. 

ON THE FACTS OF THIS CASE THE CONVICTION OF THE PETITIONER HAS BEEN
OBTAINED BY METHODS THAT OFFEND THE DUE PROCESS CLAUSE.  THE JUDGMENT
BELOW MUST BE REVERSED. 

FN1  THE PETITION FOR A HEARING IS ADDRESSED TO THE DISCRETION OF THE
CALIFORNIA SUPREME COURT AND A DENIAL HAS APPARENTLY THE SAME
SIGNIFICANCE AS THE DENIAL OF CERTIORARI IN THIS COURT.  CAL. CONST.,
ART. VI, SECS. 4, 4C; "RULES ON APPEAL," RULES 28, 29, 36 CAL. 2D 24-25
(1951).  SEE 3 STAN.  L. REV. 243-269 (1951). 

FN2  WHAT IS HERE SUMMARIZED WAS DEEMED BY A MAJORITY OF THE COURT,
IN MALINSKI V. NEW YORK, 325 U.S. 401, 412 AND 438, TO BE "THE
CONTROLLING PRINCIPLES UPON WHICH THIS COURT REVIEWS ON CONSTITUTIONAL
GROUNDS A STATE COURT CONVICTION FOR CRIME."  THEY HAVE BEEN APPLIED BY
THIS COURT MANY TIMES, LONG BEFORE AND SINCE THE MALINSKI CASE. 

FN3  THIS IS THE FEDERAL JURY REQUIRED CONSTITUTIONALLY ALTHOUGH
ENGLAND AND AT LEAST HALF OF THE STATES HAVE IN SOME CIVIL CASES JURIES
WHICH ARE COMPOSED OF LESS THAN 12 OR WHOSE VERDICT MAY BE LESS THAN
UNANIMOUS.  SEE COUNTY COURTS ACT, 1934, 24 & 25 GEO.  V, C. 53, SEC.
93; ARIZONA STATE LEGISLATIVE BUREAU, LEGISLATIVE BRIEFS NO. 4, GRAND
AND PETIT JURIES IN THE UNITED STATES, V-VI (FEB. 15, 1940); THE
COUNCIL OF STATE GOVERNMENTS, THE BOOK OF THE STATES, 1950-1951, 515. 

FN4  BURKE'S OBSERVATIONS ON THE METHOD OF ASCERTAINING LAW BY JUDGES
ARE PERTINENT: 

"YOUR COMMITTEE DO NOT FIND ANY POSITIVE LAW WHICH BINDS THE JUDGES
OF THE COURTS IN WESTMINSTER-HALL PUBLICLY TO GIVE A REASONED OPINION
FROM THE BENCH, IN SUPPORT OF THEIR JUDGMENT UPON MATTERS THAT ARE
STATED BEFORE THEM.  BUT THE COURSE HATH PREVAILED FROM THE OLDEST
TIMES.  IT HATH BEEN SO GENERAL AND SO UNIFORM, THAT IT MUST BE
CONSIDERED AS THE LAW OF THE LAND."  REPORT OF THE COMMITTEE OF
MANAGERS ON THE CAUSES OF THE DURATION OF MR. HASTINGS'S TRIAL, 4
SPEECHES OF EDMUND BURKE (1816) 200-201. 

AND BURKE HAD AN ANSWER FOR THOSE WHO ARGUE THAT THE LIBERTY OF THE
CITIZEN CANNOT BE ADEQUATELY PROTECTED BY THE FLEXIBLE CONCEPTION OF
DUE PROCESS OF LAW: 

"  ... THE ENGLISH JURISPRUDENCE HAS NOT ANY OTHER SURE FOUNDATION,
NOR CONSEQUENTLY THE LIVES AND PROPERTIES OF THE SUBJECT ANY SURE HOLD,
BUT IN THE MAXIMS, RULES, AND PRINCIPLES, AND JURIDICAL TRADITIONARY
LINE OF DECISIONS  ...  ."  ID., AT 201. 

FN5 MORRIS R. COHEN, "JUS NATURALE REDIVIVUM," 25 PHILOSOPHICAL
REVIEW 761 (1916), AND "NATURAL RIGHTS AND POSITIVE LAW," REASON AND
NATURE (1931), 401-426; F. POLLOCK, "THE HISTORY OF THE LAW OF NATURE,"
ESSAYS IN THE LAW (1922), 31-79. 

FN6  AS TO THE DIFFERENCE BETWEEN THE PRIVILEGE AGAINST SELF
CRIMINATION PROTECTED, IN FEDERAL PROSECUTIONS, UNDER THE FIFTH
AMENDMENT, AND THE LIMITATIONS WHICH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT IMPOSES UPON THE STATES AGAINST THE USE OF COERCED
CONFESSIONS, SEE BROWN V. MISSISSIPPI, SUPRA, AT 285. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

ADAMSON V. CALIFORNIA, 332 U.S. 46, 68-123, SETS OUT REASONS FOR MY
BELIEF THAT STATE AS WELL AS FEDERAL COURTS AND LAW ENFORCEMENT
OFFICERS MUST OBEY THE FIFTH AMENDMENT'S COMMAND THAT "NO PERSON ...
SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF."  I THINK A PERSON IS COMPELLED TO BE A WITNESS AGAINST
HIMSELF NOT ONLY WHEN HE IS COMPELLED TO TESTIFY, BUT ALSO WHEN AS
HERE, INCRIMINATING EVIDENCE IS FORCIBLY TAKEN FROM HIM BY A
CONTRIVANCE OF MODERN SCIENCE.  CF. BOYD V. UNITED STATES, 116 U.S.
616; COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562; BRAM V. UNITED STATES,
168 U.S. 532; CHAMBERS V. FLORIDA, 309 U.S. 227.  CALIFORNIA CONVICTED
THIS PETITIONER BY USING AGAINST HIM EVIDENCE OBTAINED IN THIS MANNER,
AND I AGREE WITH MR. JUSTICE DOUGLAS THAT THE CASE SHOULD BE REVERSED
ON THIS GROUND. 

IN THE VIEW OF A MAJORITY OF THE COURT, HOWEVER, THE FIFTH AMENDMENT
IMPOSES NO RESTRAINT OF ANY KIND ON THE STATES.  THEY NEVERTHELESS HOLD
THAT CALIFORNIA'S USE OF THIS EVIDENCE VIOLATED THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  SINCE THEY HOLD AS I DO IN THIS CASE, I
REGRET MY INABILITY TO ACCEPT THEIR INTERPRETATION WITHOUT PROTEST. 
BUT I BELIEVE THAT FAITHFUL ADHERENCE TO THE SPECIFIC GUARANTEES IN THE
BILL OF RIGHTS INSURES A MORE PERMANENT PROTECTION OF INDIVIDUAL
LIBERTY THAN THAT WHICH CAN BE AFFORDED BY THE NEBULOUS STANDARDS
STATED BY THE MAJORITY. 

WHAT THE MAJORITY HOLDS IS THAT THE DUE PROCESS CLAUSE EMPOWERS THIS
COURT TO NULLIFY ANY STATE LAW IF ITS APPLICATION "SHOCKS THE
CONSCIENCE," OFFENDS "A SENSE OF JUSTICE" OR RUNS COUNTER TO THE
"DECENCIES OF CIVILIZED CONDUCT."  THE MAJORITY EMPHASIZE THAT THESE
STATEMENTS DO NOT REFER TO THEIR OWN CONSCIENCES OR TO THEIR SENSES OF
JUSTICE AND DECENCY.  FOR WE ARE TOLD THAT "WE MAY NOT DRAW ON OUR
MERELY PERSONAL AND PRIVATE NOTIONS"; OUR JUDGMENT MUST BE GROUNDED ON
"CONSIDERATIONS DEEPLY ROOTED IN REASON AND IN THE COMPELLING
TRADITIONS OF THE LEGAL PROFESSION."  WE ARE FURTHER ADMONISHED TO
MEASURE THE VALIDITY OF STATE PRACTICES, NOT BY OUR REASON, OR BY THE
TRADITIONS OF THE LEGAL PROFESSION, BUT BY "THE COMMUNITY'S SENSE OF
FAIR PLAY AND DECENCY"; BY THE "TRADITIONS AND CONSCIENCE OF OUR
PEOPLE"; OR BY "THOSE CANONS OF DECENCY AND FAIRNESS WHICH EXPRESS THE
NOTIONS OF JUSTICE OF ENGLISH-SPEAKING PEOPLES."  THESE CANONS ARE MADE
NECESSARY, IT IS SAID, BECAUSE OF "INTERESTS OF SOCIETY PUSHING IN
OPPOSITE DIRECTIONS." 

IF THE DUE PROCESS CLAUSE DOES VEST THIS COURT WITH SUCH UNLIMITED
POWER TO INVALIDATE LAWS, I AM STILL IN DOUBT AS TO WHY WE SHOULD
CONSIDER ONLY THE NOTIONS OF ENGLISH-SPEAKING PEOPLES TO DETERMINE WHAT
ARE IMMUTABLE AND FUNDAMENTAL PRINCIPLES OF JUSTICE.  MOREOVER, ONE MAY
WELL ASK WHAT AVENUES OF INVESTIGATION ARE OPEN TO DISCOVER "CANONS" OF
CONDUCT SO UNIVERSALLY FAVORED THAT THIS COURT SHOULD WRITE THEM INTO
THE CONSTITUTION?  ALL WE ARE TOLD IS THAT THE DISCOVERY MUST BE MADE
BY AN "EVALUATION BASED ON A DISINTERESTED INQUIRY PURSUED IN THE
SPIRIT OF SCIENCE, ON A BALANCED ORDER OF FACTS." 

SOME CONSTITUTIONAL PROVISIONS ARE STATED IN ABSOLUTE AND UNQUALIFIED
LANGUAGE SUCH, FOR ILLUSTRATION, AS THE FIRST AMENDMENT STATING THAT NO
LAW SHALL BE PASSED PROHIBITING THE FREE EXERCISE OF RELIGION OR
ABRIDGING THE FREEDOM OF SPEECH OR PRESS.  OTHER CONSTITUTIONAL
PROVISIONS DO REQUIRE COURTS TO CHOOSE BETWEEN COMPETING POLICIES, SUCH
AS THE FOURTH AMENDMENT WHICH, BY ITS TERMS, NECESSITATES A JUDICIAL
DECISION AS TO WHAT IS AN "UNREASONABLE" SEARCH OR SEIZURE.  THERE IS,
HOWEVER, NO EXPRESS CONSTITUTIONAL LANGUAGE GRANTING JUDICIAL POWER TO
INVALIDATE EVERY STATE LAW OF EVERY KIND DEEMED "UNREASONABLE" OR
CONTRARY TO THE COURT'S NOTION OF CIVILIZED DECENCIES; YET THE
CONSTITUTIONAL PHILOSOPHY USED BY THE MAJORITY HAS, IN THE PAST, BEEN
USED TO DENY A STATE THE RIGHT TO FIX THE PRICE OF GASOLINE, WILLIAMS
V. STANDARD OIL CO., 278 U.S. 235; AND EVEN THE RIGHT TO PREVENT BAKERS
FROM PALMING OFF SMALLER FOR LARGER LOAVES OF BREAD, JAY BURNS BAKING
CO. V. BRYAN, 264 U.S. 504.  THESE CASES, AND OTHERS, (FN1) SHOW THE
EXTENT TO WHICH THE EVANESCENT STANDARDS OF THE MAJORITY'S PHILOSOPHY
HAVE BEEN USED TO NULLIFY STATE LEGISLATIVE PROGRAMS PASSED TO SUPPRESS
EVIL ECONOMIC PRACTICES.  WHAT PARALYZING ROLE THIS SAME PHILOSOPHY
WILL PLAY IN THE FUTURE ECONOMIC AFFAIRS OF THIS COUNTRY IS IMPOSSIBLE
TO PREDICT.  OF EVEN GRAVER CONCERN, HOWEVER, IS THE USE OF THE
PHILOSOPHY TO NULLIFY THE BILL OF RIGHTS.  I LONG AGO CONCLUDED THAT
THE ACCORDION-LIKE QUALITIES OF THIS PHILOSOPHY MUST INEVITABLY IMPERIL
ALL THE INDIVIDUAL LIBERTY SAFEGUARDS SPECIFICALLY ENUMERATED IN THE
BILL OF RIGHTS.  (FN2)  REFLECTION AND RECENT DECISIONS (FN3) OF THIS
COURT SANCTIONING ABRIDGMENT OF THE FREEDOM OF SPEECH AND PRESS HAVE
STRENGTHENED THIS CONCLUSION. 

FN1  SEE N. 12 OF DISSENTING OPINION, ADMANSON V. CALIFORNIA, SUPRA,
AT P. 83. 

FN2  E.G., ADAMSON V. CALIFORNIA, SUPRA, AND CASES CITED IN THE
DISSENT. 

FN3 AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382; FEINER V.
NEW YORK, 340 U.S. 315; DENNIS V. UNITED STATES, 341 U.S. 494. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE EVIDENCE OBTAINED FROM THIS ACCUSED'S STOMACH WOULD BE ADMISSIBLE
IN THE MAJORITY OF STATES WHERE THE QUESTION HAS BEEN RAISED.  (FN1)
SO FAR AS THE REPORTED CASES REVEAL, THE ONLY STATES WHICH WOULD
PROBABLY EXCLUDE THE EVIDENCE WOULD BE ARKANSAS, IOWA, MICHIGAN, AND
MISSOURI.  (FN2) YET THE COURT NOW SAYS THAT THE RULE WHICH THE
MAJORITY OF THE STATES HAVE FASHIONED VIOLATES THE "DECENCIES OF
CIVILIZED CONDUCT."  TO THAT I CANNOT AGREE.  IT IS A RULE FORMULATED
BY RESPONSIBLE COURTS WITH JUDGES AS SENSITIVE AS WE ARE TO THE PROPER
STANDARDS FOR LAW ADMINISTRATION. 

AS AN ORIGINAL MATTER IT MIGHT BE DEBATABLE WHETHER THE PROVISION IN
THE FIFTH AMENDMENT THAT NO PERSON "SHALL BE COMPELLED IN ANY CRIMINAL
CASE TO BE A WITNESS AGAINST HIMSELF" SERVES THE ENDS OF JUSTICE.  NOT
ALL CIVILIZED LEGAL PROCEDURES RECOGNIZE IT.  (FN3)  BUT THE CHOICE WAS
MADE BY THE FRAMERS, A CHOICE WHICH SETS A STANDARD FOR LEGAL TRIALS IN
THIS COUNTRY.  THE FRAMERS MADE IT A STANDARD OF DUE PROCESS FOR
PROSECUTIONS BY THE FEDERAL GOVERNMENT.  IF IT IS A REQUIREMENT OF DUE
PROCESS FOR A TRIAL IN THE FEDERAL COURTHOUSE, IT IS IMPOSSIBLE FOR ME
TO SAY IT IS NOT A REQUIREMENT OF DUE PROCESS FOR A TRIAL IN THE STATE
COURTHOUSE.  THAT WAS THE ISSUE RECENTLY SURVEYED IN ADAMSON V.
CALIFORNIA, 332 U.S. 46.  THE COURT REJECTED THE VIEW THAT COMPELLED
TESTIMONY SHOULD BE EXCLUDED AND HELD IN SUBSTANCE THAT THE ACCUSED IN
A STATE TRIAL CAN BE FORCED TO TESTIFY AGAINST HIMSELF.  I DISAGREE. 
OF COURSE AN ACCUSED CAN BE COMPELLED TO BE PRESENT AT THE TRIAL, TO
STAND, TO SIT, TO TURN THIS WAY OR THAT, AND TO TRY ON A CAP OR A
COAT.  SEE HOLT V. UNITED STATES, 218 U.S. 245, 252-253.  BUT I THINK
THAT WORDS TAKEN FROM HIS LIPS, CAPSULES TAKEN FROM HIS STOMACH, BLOOD
TAKEN FROM HIS VEINS ARE ALL INADMISSIBLE PROVIDED THEY ARE TAKEN FROM
HIM WITHOUT HIS CONSENT.  THEY ARE INADMISSIBLE BECAUSE OF THE COMMAND
OF THE FIFTH AMENDMENT. 

THAT IS AN UNEQUIVOCAL, DEFINITE AND WORKABLE RULE OF EVIDENCE FOR
STATE AND FEDERAL COURTS.  BUT WE CANNOT IN FAIRNESS FREE THE STATE
COURTS FROM THAT COMMAND AND YET EXCORIATE THEM FOR FLOUTING THE
"DECENCIES OF CIVILIZED CONDUCT" WHEN THEY ADMIT THE EVIDENCE.  THAT IS
TO MAKE THE RULE TURN NOT ON THE CONSTITUTION BUT ON THE IDIOSYNCRASIES
OF THE JUDGES WHO SIT HERE. 

THE DAMAGE OF THE VIEW SPONSORED BY THE COURT IN THIS CASE MAY NOT BE
CONSPICUOUS HERE.  BUT IT IS PART OF THE SAME PHILOSOPHY THAT PRODUCED
BETTS V. BRADY, 316 U.S. 455, DENYING COUNSEL TO AN ACCUSED IN A STATE
TRIAL AGAINST THE COMMAND OF THE SIXTY AMENDMENT, AND WOLF V. COLORADO,
338 U.S. 25, ALLOWING EVIDENCE OBTAINED AS A RESULT OF A SEARCH AND
SEIZURE THAT IS ILLEGAL UNDER THE FOURTH AMENDMENT TO BE INTRODUCED IN
A STATE TRIAL.  IT IS PART OF THE PROCESS OF EROSION OF CIVIL RIGHTS OF
THE CITIZEN IN RECENT YEARS. 

FN1  SEE PEOPLE V. ONE 1941 MERCURY SEDAN, 74 CAL. APP. 2D 199, 168
P.2D 443 (PUMPING OF ACCUSED'S STOMACH TO RECOVER SWALLOWED NARCOTIC);
ROCHIN V. CALIFORNIA, 101 CAL.  APP. 2D 140, 225 P.2D 1 (PUMPING OF
ACCUSED'S STOMACH TO RECOVER SWALLOWED NARCOTIC); PEOPLE V. TUCKER, 88
CAL. APP. 2D 333, 198 P.2D 941 (BLOOD TEST TO DETERMINE INTOXICATION);
STATE V. AYRES, 70 IDAHO 18, 211 P.2D 142 (BLOOD TEST TO DETERMINE
INTOXICATION); DAVIS V. STATE, 189 MD. 640, 57 A.2D 289 (BLOOD TYPING
TO LINK ACCUSED WITH MURDER); SKIDMORE V. STATE, 59 NEV. 320, 92 P.2D
979 (EXAMINATION OF ACCUSED FOR VENEREAL DISEASE); STATE V. STURTEVANT,
96 N.H. 99, 70 A.2D 909 (BLOOD TEST TO DETERMINE INTOXICATION); STATE
V. ALEXANDER, 7 N.J. 585, 83 A.2D 441 (BLOOD TYPING TO ESTABLISH
GUILT); STATE V. GATTON, 60 OHIO APP. 192, 20 N.E.2D 265 (COMMENTING ON
REFUSAL TO SUBMIT TO BLOOD TEST OR URINALYSIS TO DETERMINE
INTOXICATION); STATE V. NUTT, 78 OHIO APP. 336, 65 N.E.2D 675
(COMMENTING ON REFUSAL TO SUBMIT TO URINALYSIS TO DETERMINE
INTOXICATION); BUT CF.  BOOKER V. CINCINNATI, 1 OHIO SUPP. 152
(EXAMINATION AND URINALYSIS TO DETERMINE INTOXICATION); STATE V. CRAM,
176 ORE.  577, 160 P.2D 283, 164 A.L.R. 952, 967 (BLOOD TEST TO
DETERMINE INTOXICATION); COMMONWEALTH V. STATTI, 166 PA. SUPER.  577,
73 A.2D 688 (BLOOD TYPING LINKING ACCUSED TO ASSAULT).    FN2  BETHEL
V. STATE, 178 ARK. 277, 10 S.W.2D 370 (EXAMINATION FOR VENEREAL
DISEASE); STATE V. HEIGHT, 117 IOWA 650, 91 N.W. 935 (EXAMINATION FOR
VENEREAL DISEASE); STATE V. WELTHA, 228 IOWA 519, 292 N.W. 148 (BLOOD
TEST TO DETERMINE INTOXICATION, LIMITING RULES ON SEARCH AND SEIZURE);
BUT CF. STATE V. BENSON, 230 IOWA 1168, 300 N.W. 275 (COMMENT ON
REFUSAL TO SUBMIT TO BLOOD TEST TO DETERMINE INTOXICATION); PEOPLE V.
CORDER, 244 MICH.  274, 221 N.W. 309 (EXAMINATION FOR VENEREAL
DISEASE); BUT SEE PEOPLE V. PLACIDO, 310 MICH. 404, 408, 17 N.W.2D 230,
232; STATE V. NEWCOMB, 220 MO. 54, 119 S.W. 405 (EXAMINATION FOR
VENEREAL DISEASE); STATE V. MATSINGER, 180 S.W. 856 (EXAMINATION FOR
VENEREAL DISEASE). 

FN3  SEE PLOSCOWE, THE INVESTIGATING MAGISTRATE IN EUROPEAN CRIMINAL
PROCEDURE, 33 MICH. L. REV. 1010 (1935). 
..END :

















KEROTEST MANUFACTURING CO. V. C-O-TWO FIRE EQUIPMENT CO. 342 U.S. 180 


NO. 180.  ARGUED NOVEMBER 30, 1951 - DECIDED JANUARY 2, 1952 - 189 F.2D
31, AFFIRMED. 


UNDER THE FEDERAL DECLARATORY JUDGMENTS ACT, A PENNSYLVANIA
MANUFACTURER, WHOSE CUSTOMER WAS ALREADY BEING SUED IN ILLINOIS BY A
DELAWARE CORPORATION FOR PATENT INFRINGEMENT, SUED IN A FEDERAL COURT
IN DELAWARE FOR A DECLARATORY JUDGMENT THAT THE PATENTS WERE INVALID
AND THAT DEVICES WHICH THE MANUFACTURER SUPPLIES TO ITS CUSTOMERS DID
NOT INFRINGE THEM.  SUBSEQUENTLY, THE MANUFACTURER WAS JOINED AS A
DEFENDANT IN THE ILLINOIS INFRINGEMENT SUIT.  THE DISTRICT COURT IN
DELAWARE DENIED A STAY OF THE DELAWARE SUIT AND ENJOINED THE PATENTEE
FROM PROCEEDING AGAINST THE MANUFACTURER IN THE ILLINOIS SUIT.  THE
COURT OF APPEALS REVERSED, ON THE GROUND THAT ALL INTERESTS WOULD BE
BEST SERVED BY PROSECUTION OF THE SUIT IN ILLINOIS.  HELD:  THE
JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.  PP. 181-186. 

(A)  AMPLE DISCRETION MUST BE LEFT TO THE LOWER COURTS FOR THE WISE
JUDICIAL ADMINISTRATION OF THE FEDERAL DECLARATORY JUDGMENTS ACT, WHICH
HAS CREATED COMPLICATED PROBLEMS FOR COORDINATE COURTS BY FACILITATING
THE INITIATION OF LITIGATION BY DIFFERENT PARTIES TO MANY-SIDED
TRANSACTIONS.  PP. 183-184. 

(B)  IT IS NOT TO BE ASSUMED THAT THE LOWER COURTS WILL PERMIT OWNERS
TO WEAK PATENTS TO AVOID REAL TESTS OF THEIR PATENTS' VALIDITY BY
SUCCESSIVE SUITS AGAINST CUSTOMERS IN FORUMS INCONVENIENT TO THE
MANUFACTURERS OR SELECTED BECAUSE OF GREATER HOSPITALITY TO PATENTS. 
PP. 184-185. 

(C)  A MANUFACTURER WHO IS CHARGED WITH INFRINGING A PATENT CANNOT
STRETCH THE FEDERAL DECLARATORY JUDGMENTS ACT TO GIVE HIM A PARAMOUNT
RIGHT TO CHOOSE THE FORUM FOR TRYING OUT QUESTIONS OF INFRINGEMENT AND
VALIDITY.  PP. 185-186. 

KEROTEST MANUFACTURING CO. V. C-O-TWO FIRE EQUIPMENT CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

A FEDERAL DISTRICT COURT IN DELAWARE TEMPORARILY STAYED A DECLARATORY
JUDGMENT PROCEEDING AGAINST RESPONDENT TO TEST THE VALIDITY OF ITS
PATENTS AND DENIED AN INJUNCTION AGAINST RESPONDENT PROCEEDING AGAINST
PETITIONER IN A PENDING INFRINGEMENT SUIT IN ILLINOIS AGAINST
PETITIONER'S CUSTOMER.  85 U.S.P.Q. 185.  THE COURT OF APPEALS
AFFIRMED.  182 F.2D 773.  AFTER PETITIONER HAD BEEN JOINED AS A
DEFENDANT IN THE ILLINOIS PROCEEDINGS, THE DISTRICT COURT IN DELAWARE
DENIED A STAY OF THE DECLARATORY JUDGMENT PROCEEDING AND ENJOINED
RESPONDENT FROM PROCEEDING AGAINST PETITIONER IN THE ILLINOIS SUIT.  92
F. SUPP. 943.  THE COURT OF APPEALS REVERSED.  88 U.S.P.Q. 335.  ON
REHEARING, THE COURT OF APPEALS, SITTING EN BANC, ADHERED TO THE
REVERSAL.  189 F.2D 31.  THIS COURT GRANTED CERTIORARI.  342 U.S. 810. 
AFFIRMED, P. 186. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE C-O-TWO FIRE EQUIPMENT COMPANY, THE RESPONDENT HERE, OWNS TWO
PATENTS, ONE ISSUED ON NOVEMBER 23, 1948, AND THE OTHER REISSUED ON
AUGUST 23, 1949, FOR SQUEEZE-GRIP VALVES AND DISCHARGE HEADS FOR
PORTABLE FIRE EXTINGUISHERS.  C-O-TWO, INCORPORATED IN DELAWARE, HAS
OFFICES IN NEWARK, NEW JERSEY.  ON JANUARY 17, 1950, IT COMMENCED IN
THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AN ACTION
AGAINST THE ACME EQUIPMENT COMPANY FOR "MAKING AND CAUSING TO BE MADE
AND SELLING AND USING" DEVICES WHICH WERE CHARGED WITH INFRINGING C-O
TWO'S PATENTS. 

ON MARCH 9, 1950, THE PETITIONER KEROTEST BEGAN IN THE DISTRICT COURT
OF DELAWARE THIS PROCEEDING AGAINST C-O-TWO FOR A DECLARATION THAT THE
TWO PATENTS SUED ON IN THE ILLINOIS ACTION ARE INVALID AND THAT THE
DEVICES WHICH KEROTEST MANUFACTURES AND SUPPLIES TO ACME, THE ILLINOIS
DEFENDANT, DO NOT INFRINGE THE C-O-TWO PATENTS.  KEROTEST, A
PENNSYLVANIA CORPORATION, HAS ITS OFFICES IN PITTSBURGH, BUT WAS
SUBJECT TO SERVICE OF PROCESS IN ILLINOIS.  C-O-TWO ON MARCH 22, 1950,
FILED AN AMENDMENT TO ITS COMPLAINT JOINING KEROTEST AS A DEFENDANT IN
THE ILLINOIS ACTION. 

IN DELAWARE, C-O-TWO MOVED FOR A STAY OF THE DECLARATORY JUDGMENT
ACTION AND KEROTEST SOUGHT TO ENJOIN C-O-TWO FROM PROSECUTING THE
ILLINOIS SUIT "EITHER AS AGAINST KEROTEST ALONE, OR GENERALLY, AS (THE
DELAWARE DISTRICT COURT MIGHT) DEEM JUST AND PROPER."  THE DISTRICT
COURT STAYED THE DELAWARE PROCEEDING AND REFUSED TO ENJOIN THAT IN
ILLINOIS, SUBJECT TO REEXAMINATION OF THE QUESTIONS AFTER 90 DAYS.  85
U.S.P.Q. 185.  ON APPEAL BY KEROTEST, THE COURT OF APPEALS FOR THE
THIRD CIRCUIT AFFIRMED, HOLDING THAT THE DISTRICT COURT HAD NOT ABUSED
ITS DISCRETION IN STAYING THE DELAWARE ACTION FOR 90 DAYS TO PERMIT IT
TO GET "MORE INFORMATION CONCERNING THE CONTROVERTED STATUS OF KEROTEST
IN THE ILLINOIS SUIT."  182 F.2D 773, 775. 

DURING THE 90-DAY PERIOD THE ILLINOIS DISTRICT COURT ALLOWED THE
JOINDER OF KEROTEST AS A DEFENDANT, DENYING A MOTION BY ACME TO STAY
THE ILLINOIS PROCEEDING PENDING DISPOSITION OF THE DELAWARE SUIT, AND
KEROTEST MADE A GENERAL APPEARANCE.  AFTER 90 DAYS BOTH PARTIES RENEWED
THEIR MOTIONS IN DELAWARE, WITH KEROTEST THIS TIME ASKING THAT C-O-TWO
BE ENJOINED FROM PROSECUTING THE ILLINOIS SUIT ONLY AS TO KEROTEST. 
THE DISTRICT COURT, A DIFFERENT JUDGE SITTING, ENJOINED C-O-TWO FORM
PROCEEDING IN THE ILLINOIS SUIT AGAINST KEROTEST, AND DENIED THE STAY
OF THE DELAWARE ACTION, LARGELY ACTING ON THE ASSUMPTION THAT RULINGS
BY ITS OWN AND OTHER COURTS OF APPEALS REQUIRED SUCH A RESULT EXCEPT IN
"EXCEPTIONAL CASES," SINCE THE DELAWARE ACTION BETWEEN C-O-TWO AND
KEROTEST WAS COMMENCED BEFORE KEROTEST WAS MADE A DEFENDANT IN THE
ILLINOIS SUIT.  92 F. SUPP. 943.  ON APPEAL, THE COURT OF APPEALS FOR
THE THIRD CIRCUIT REVERSED, SAYING IN PART: 

"  ...  THE WHOLE OF THE WAR AND ALL THE PARTIES TO IT ARE IN THE
CHICAGO THEATRE AND THERE ONLY CAN IT BE FOUGHT TO A FINISH AS THE
LITIGATIONS ARE NOW CAST.  ON THE OTHER HAND IF THE BATTLE IS WAGED IN
THE DELAWARE ARENA THERE IS A STRONG PROBABILITY THAT THE CHICAGO SUIT
NONETHELESS WOULD HAVE TO BE PROCEEDED WITH FOR ACME IS NOT AND CANNOT
BE MADE A PARTY TO THE DELAWARE LITIGATION.  THE CHICAGO SUIT WHEN
ADJUDICATED WILL BIND ALL THE PARTIES IN BOTH CASES.  WHY SHOULD THERE
BE TWO LITIGATIONS WHERE ONE WILL SUFFICE?  WE CAN FIND NO ADEQUATE
REASON.  WE ASSUME, OF COURSE, THAT THERE WILL BE PROMPT ACTION IN THE
CHICAGO THEATRE."  88 U.S.P.Q. 335, 337. 

A PETITION FOR REHEARING WAS GRANTED AND THE COURT OF APPEALS, THE
SEVEN CIRCUIT JUDGES SITTING EN BANC, IN AN EXPANDED OPINION FROM WHICH
TWO JUDGES DISSENTED, ADHERED TO THE VIEWS OF THE COURT OF THREE
JUDGES.  189 F.2D 31, 89 U.S.P.Q. 411.  INASMUCH AS A QUESTION OF
IMPORTANCE TO THE CONDUCT OF MULTIPLE LITIGATION IN THE FEDERAL
JUDICIAL SYSTEM WAS INVOLVED, WE GRANTED CERTIORARI.  342 U.S. 810. 

THE FEDERAL DECLARATORY JUDGMENTS ACT, (FN1) FACILITATING AS IT DOES
THE INITIATION OF LITIGATION BY DIFFERENT PARTIES TO MANY-SIDED
TRANSACTIONS, HAS CREATED COMPLICATED PROBLEMS FOR COORDINATE COURTS. 
(FN2)  WISE JUDICIAL ADMINISTRATION, GIVING REGARD TO CONSERVATION OF
JUDICIAL RESOURCES AND COMPREHENSIVE DISPOSITION OF LITIGATION, DOES
NOT COUNSEL RIGID MECHANICAL SOLUTION OF SUCH PROBLEMS.  THE FACTORS
RELEVANT TO WISE ADMINISTRATION HERE ARE EQUITABLE IN NATURE. 
NECESSARILY, AN AMPLE DEGREE OF DISCRETION, APPROPRIATE FOR DISCIPLINED
AND EXPERIENCED JUDGES, MUST BE LEFT TO THE LOWER COURTS.  THE
CONCLUSION WHICH WE ARE ASKED TO UPSET DERIVES FROM AN EXTENDED AND
CAREFUL STUDY OF THE CIRCUMSTANCES OF THIS LITIGATION.  SUCH AN
ESTIMATE HAS LED THE COURT OF APPEALS TWICE TO CONCLUDE THAT ALL
INTERESTS WILL BE BEST SERVED BY PROSECUTION OF THE SINGLE SUIT IN
ILLINOIS.  EVEN IF WE HAD MORE DOUBTS THAN WE DO ABOUT THE ANALYSIS
MADE BY THE COURT OF APPEALS, WE WOULD NOT FEEL JUSTIFIED IN DISPLACING
ITS JUDGMENT WITH OURS.  (FN3) 

IT WAS STRONGLY PRESSED UPON US THAT THE RESULT BELOW MAY ENCOURAGE
OWNERS OF WEAK PATENTS TO AVOID REAL TESTS OF THEIR PATENTS' VALIDITY
BY SUCCESSIVE SUITS AGAINST CUSTOMERS IN FORUMS INCONVENIENT FOR THE
MANUFACTURERS, OR SELECTED BECAUSE OF GREATER HOSPITALITY TO PATENTS. 
SUCH APPREHENSION IMPLIES A LACK OF DISCIPLINE AND OF DISINTERESTEDNESS
ON THE PART OF THE LOWER COURTS, HARDLY A WORTHY OR WISE BASIS FOR
FASHIONING RULES OF PROCEDURE.  IT REFLECTS AN ATTITUDE AGAINST WHICH
WE WERE WARNED BY MR. JUSTICE HOLMES, SPEAKING FOR THE WHOLE COURT,
LIKEWISE IN REGARD TO A QUESTION OF PROCEDURE:  "UNIVERSAL DISTRUST
CREATES UNIVERSAL INCOMPETENCE."  GRAHAM V. UNITED STATES, 231 U.S.
474, 480.  IF IN A RARE INSTANCE A DISTRICT JUDGE ABUSES THE
DISCRETIONARY AUTHORITY THE WANT OF WHICH PRECLUDES AN EFFECTIVE,
INDEPENDENT JUDICIARY, THERE IS ALWAYS THE OPPORTUNITY FOR CORRECTIVE
REVIEW BY A COURT OF APPEALS AND ULTIMATELY BY THIS COURT. 

THE MANUFACTURER WHO IS CHARGED WITH INFRINGING A PATENT CANNOT
STRETCH THE FEDERAL DECLARATORY JUDGMENTS ACT TO GIVE HIM A PARAMOUNT
RIGHT TO CHOOSE THE FORUM FOR TRYING OUT QUESTIONS OF INFRINGEMENT AND
VALIDITY.  HE IS GIVEN AN EQUAL START IN THE RACE TO THE COURTHOUSE,
NOT A HEADSTART.  IF HE IS FOREHANDED, SUBSEQUENT SUITS AGAINST HIM BY
THE PATENTEE CAN WITHIN THE TRIAL COURT'S DISCRETION BE ENJOINED
PENDING DETERMINATION OF THE DECLARATORY JUDGMENT SUIT, (FN4) AND A
JUDGMENT IN HIS FAVOR BARS SUITS AGAINST HIS CUSTOMERS.  (FN5)  IF HE
IS ANTICIPATED, THE COURT'S DISCRETION IS BROAD ENOUGH TO PROTECT HIM
FROM HARASSMENT OF HIS CUSTOMERS.  IF THE PATENTEE'S SUIT AGAINST A
CUSTOMER IS BROUGHT IN A DISTRICT WHERE THE MANUFACTURER CANNOT BE
JOINED AS A DEFENDANT, THE MANUFACTURER MAY BE PERMITTED SIMULTANEOUSLY
TO PROSECUTE A DECLARATORY ACTION AGAINST THE PATENTEE ELSEWHERE.  AND
IF THE MANUFACTURER IS JOINED AS AN UNWILLING DEFENDANT IN A FORUM NON
CONVENIENS, HE HAS AVAILABLE UPON AN APPROPRIATE SHOWING THE RELIEF
PROVIDED BY SEC. 1404(A) OF THE JUDICIAL CODE.  62 STAT. 869, 937, 28
U.S.C. SEC.  1404(A).  (FN6) 

THE JUDGMENT BELOW MUST BE AFFIRMED. 

FN1  48 STAT. 955, 28 U.S.C. SECS. 2201-2202. 

FN2  SEE DEVELOPMENTS IN THE LAW - DECLARATORY JUDGMENTS, 1941-1949,
62 HARV. L. REV. 787, 814-815, 866 (1949). 

FN3  OTHER CASES IN COURTS OF APPEALS WHICH PRESENT AT ALL COMPARABLE
SITUATIONS DO NOT SHOW ANY RIGID RULE SUCH AS THAT UNDER WHICH THE
DISTRICT COURT FELT CONSTRAINED.  IN VIEW OF THE BASIS OF OUR DECISION
IT WOULD NOT BE PROFITABLE TO DISCUSS THESE CASES IN DETAIL.  IT WILL
SUFFICE TO INDICATE THE CONCURRENT CONTROVERSIES FOR WHICH ADJUSTMENT
WAS SOUGHT.  TRIANGLE CONDUIT & CABLE CO. V. NATIONAL ELEC.  PROD. 
CORP., 125 F.2D 1008 (C.A. 3D CIR.)(SUIT 1 - DECLARATORY ACTION BY
MANUFACTURER AGAINST PATENTEE; SUIT 2 - PATENTEE SUES MANUFACTURER AND
CUSTOMER FOR INFRINGEMENT; SUIT 2 ENJOINED AS TO MANUFACTURER); CRESTA
BLANCA WINE CO. V. EASTERN WINE CORP., 143 F.2D 1012 (C.A.2D
CIR.)(SUITE 1 - DECLARATORY ACTION BY MANUFACTURER AGAINST TRADEMARK
OWNER; SUIT 2 - TRADEMARK OWNER SUES MANUFACTURER AND DISTRIBUTOR FOR
INFRINGEMENT; THEREAFTER, DISTRIBUTOR SEEKS TO INTERVENE AS PLAINTIFF
IN SUIT 1:  INTERVENTION DENIED AND SUIT 2 ENJOINED AS TO
MANUFACTURER); SPEED PRODUCTS CO. V. TINNERMAN PRODUCTS, INC., 83 U.S.
APP. D.C. 243, 171 F.2D 727 (SUIT 1 - A SUES COMMISSIONER OF PATENTS IN
DISTRICT OF COLUMBIA FOR REGISTRATION OF TRADEMARK; SUIT 2 - SUIT BY A
IN N.Y. AGAINST B ALONE FOR REGISTRATION OF TRADEMARK AND FOR
DECLARATION OF NONINFRINGEMENT OF B'S MARK; THEREAFTER, B JOINS AS
DEFENDANT IN SUIT 1 AND FILES COUNTERCLAIM FOR INFRINGEMENT OF B'S
MARK:  SUIT 2 NOT ENJOINED AND SUIT 1 NOT ADVANCED FOR TRIAL); HAMMETT
V. WARNER BROS. PICTURES, INC., 176 F.2D 145 (C.A.2D CIR.)(SUIT 1 -
ALLEGED COPYRIGHT OWNER SUES BROADCASTER FOR INFRINGEMENT; SUIT 2 -
DECLARATORY ACTION BY WRITER FOR BROADCASTER AGAINST ALLEGED COPYRIGHT
OWNER; THEREAFTER, WRITER JOINED AS DEFENDANT IN SUIT 1:  SUIT 2
DISMISSED); REMINGTON PROD.  CORP.  V. AMERICAN AEROVAP, INC., 192 F.2D
872 (C.A.2D CIR.), DECEMBER 4, 1951 (SUIT 1 - MANUFACTURER AND CUSTOMER
A BRING DECLARATORY ACTION AGAINST PATENTEE; SUIT 2 - PATENTEE SUES
CUSTOMERS A, B, C, AND D FOR INFRINGEMENT; THEREAFTER, CUSTOMER B JOINS
AS PLAINTIFF IN SUIT 1:  SUIT 2 ENJOINED).  BY ENDORSING WHAT WAS IN
EFFECT AN EXERCISE OF DISCRETION BY THE COURT OF APPEALS BELOW UPON
CONSIDERATION OF THE SPECIFIC CIRCUMSTANCES HERE, WE NEITHER APPROVE
NOR THROW DOUBT UPON DECISIONS BY IT OR OTHER COURTS OF APPEALS. 

FN4  SEE, E.G., CROSLEY CORP. V. WESTINGHOUSE ELEC.  & MFG. CO., 130
F.2D 474 (C.A. 3D CIR.); CARBIDE & CARBON CHEMICALS CORP. V. UNITED
STATES INDUSTRIAL CHEMICALS, INC., 140 F.2D 47 (C.A. 4TH CIR.);
INDEPENDENT PNEUMATIC TOOL CO. V. CHICAGO PNEUMATIC TOOL CO., 167 F.2D
1002 (C.A. 7TH CIR.). 

FN5  KESSLER V. ELDRED, 206 U.S. 285. 

FN6  IT IS SUGGESTED THAT RULE 15(C) OF THE FEDERAL RULES OF CIVIL
PROCEDURE MAKES THE JOINDER OF KEROTEST TAKE THE DATE, AS IT WERE, OF
THE ORIGINAL ACTION AGAINST ACME, WHICH OF COURSE PRECEDED THE DELAWARE
ACTION.  THE EQUITIES OF THE SITUATION DO NOT DEPEND ON THIS ARGUMENT. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK DISSENT. 
..END :























DESPER V. STARVED ROCK FERRY CO. 342 U.S. 187 


NO. 231.  ARGUED DECEMBER 6, 1951 - DECIDED JANUARY 2, 1952 - 188 F.2D
177, AFFIRMED. 


1.  THE SCOPE OF THE WORD "SEAMAN," AS USED IN THE JONES ACT, WAS NOT
EXTENDED BY THE 1939 AMENDMENT TO THE FEDERAL EMPLOYERS' LIABILITY ACT
TO INCLUDE ONE WHO WAS NOT A "SEAMAN" BEFORE.  PP. 189-190. 

2.  WHETHER AN INJURED PERSON WAS A "SEAMAN" ENTITLED TO THE BENEFITS
OF THE JONES ACT DEPENDS LARGELY ON THE FACTS OF THE PARTICULAR CASE
AND THE ACTIVITY IN WHICH HE WAS ENGAGED AT THE TIME OF INJURY.  P.
190. 

3.  DECEDENT HAD BEEN EMPLOYED AS AN OPERATOR OF ONE OF A FLEET OF
MOTORBOATS CARRYING SIGHTSEERS ON A RIVER DURING THE SUMMER MONTHS
ONLY.  HIS EMPLOYMENT HAD TERMINATED IN DECEMBER, AFTER HE HAD HELPED
TO LAY THE BOATS UP FOR THE WINTER.  HE WAS REEMPLOYED THE NEXT MARCH
AND INJURED IN APRIL WHILE HELPING TO PAINT, CLEAN AND WATERPROOF THE
BOATS, PREPARING THEM FOR NAVIGATION.  AT THAT TIME, NONE OF THE BOATS
WAS AFLOAT, NONE HAD A CAPTAIN OR CREW, AND THE WORK BEING DONE WAS OF
THE KIND THAT, IN THE CASE OF LARGER VESSELS, WOULD CUSTOMARILY BE DONE
EXCLUSIVELY BY SHOREBASED PERSONNEL.  HELD:  AT THE TIME OF HIS INJURY,
DECEDENT WAS NOT A "SEAMAN" WITHIN THE PURVIEW OF THE JONES ACT.  PP.
188-192. 

4.  THE FACT THAT DECEDENT HAD BEEN, OR EXPECTED IN THE FUTURE TO BE,
A SEAMAN DID NOT RENDER MARITIME WORK WHICH WAS NOT MARITIME IN ITS
NATURE.  P. 191. 

DESPER, ADMINISTRATRIX, V. STARVED ROCK FERRY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

THE DISTRICT COURT AWARDED PETITIONER A JUDGMENT UNDER THE JONES ACT
FOR THE DEATH OF HER SON FROM INJURIES SUSTAINED IN HIS EMPLOYMENT BY
RESPONDENT.  THE COURT OF APPEALS REVERSED.  188 F.2D 177.  THIS COURT
GRANTED CERTIORARI.  342 U.S. 847.  AFFIRMED, P. 192. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT SUIT UNDER THE JONES ACT (FN1) TO RECOVER DAMAGES
FOR THE DEATH OF HER INTESTATE SON FROM INJURIES SUSTAINED DURING THE
COURSE OF HIS EMPLOYMENT BY RESPONDENT.  THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT REVERSED THE JUDGMENT OF THE DISTRICT COURT ENTERED ON
A JURY'S VERDICT IN PETITIONER'S FAVOR.  (FN2)  THIS COURT GRANTED
CERTIORARI.  (FN3) 

RESPONDENT OPERATES A SMALL FLEET OF SIGHTSEEING MOTORBOATS ON THE
ILLINOIS RIVER IN THE VICINITY OF STARVED ROCK.  THE BOATS ARE
NAVIGATED UNDER COAST GUARD REGULATIONS BY PERSONNEL LICENSED BY THE
DEPARTMENT OF COMMERCE.  OPERATIONS ARE NECESSARILY RESTRICTED TO
SUMMER MONTHS.  EACH FALL THE BOATS ARE BEACHED AND PUT UP ON BLOCKS
FOR THE WINTER.  IN THE SPRING EACH IS OVERHAULED BEFORE BEING LAUNCHED
FOR THE SEASON.  THE DECEDENT, THOMAS J. DESPER, JR., WAS FIRST
EMPLOYED BY RESPONDENT IN APRIL, 1947, TO HELP PREPARE THE BOATS FOR
THEIR SEASONAL LAUNCHING.  IN JUNE OF THE SAME YEAR HE ACQUIRED THE
NECESSARY OPERATOR'S LICENSE FROM THE DEPARTMENT OF COMMERCE AND, FOR
THE REMAINDER OF THAT SEASON, HE WAS EMPLOYED AS A BOAT OPERATOR.  WHEN
THE SEASON CLOSED, HE HELPED TAKE THE BOATS OUT OF THE WATER AND BLOCK
THEM UP FOR THE WINTER.  HIS EMPLOYMENT TERMINATED DECEMBER 19, 1947. 

DESPER WAS RE-EMPLOYED MARCH 15, 1948.  THERE WAS TESTIMONY THAT HE
WAS THEN ENGAGED FOR THE SEASON AND WAS TO RESUME HIS OPERATOR'S DUTIES
WHEN THE BOATS WERE BACK IN THE WATER.  FOR THE TIME BEING, HOWEVER, HE
WAS PUT TO CLEANING, PAINTING, AND WATERPROOFING THE BOATS, PREPARING
THEM FOR NAVIGATION.  ON THE DATE OF THE ACCIDENT, APRIL 26TH, THE
BOATS WERE STILL BLOCKED UP ON LAND.  SEVERAL MEN, DESPER AMONG THEM,
WERE ON BOARD A MOORED BARGE, MAINTAINED BY RESPONDENT AS A MACHINE
SHOP, WAREHOUSE, WAITING ROOM AND TICKET OFFICE, ENGAGED IN PAINTING
LIFE PRESERVERS FOR USE ON THE BOATS.  ONE MAN WAS WORKING ON A FIRE
EXTINGUISHER.  IT EXPLODED, KILLING HIM AND DESPER. 

THE JONES ACT CONFERS A CAUSE OF ACTION ON "ANY SEAMAN."  (FN4)  IN
OPPOSITION TO PETITIONER'S SUIT UNDER THE ACT, RESPONDENT CONTENDED
THAT DESPER, AT THE TIME OF HIS DEATH, WAS NOT A "SEAMAN" WITHIN THE
MEANING OF THE ACT.  WHETHER HE WAS SUCH A "SEAMAN" IS THE CRITICAL
ISSUE IN THE CASE WHICH REACHED THIS COURT. 

PETITIONER CONTENDS THAT THE 1939 AMENDMENT TO THE FEDERAL EMPLOYERS'
LIABILITY ACT (FN5) EXTENDED THE SCOPE OF THE WORD "SEAMAN," AS USED IN
THE JONES ACT, TO INCLUDE THOSE WHOSE WORK "SUBSTANTIALLY AFFECTS"
NAVIGATION.  THE AMENDMENT PROVIDES THAT: 

"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  ...  BE CONSIDERED AS BEING EMPLOYED BY SUCH
CARRIER IN SUCH COMMERCE AND SHALL BE CONSIDERED AS ENTITLED TO THE
BENEFITS OF THIS CHAPTER." 

PETITIONER READS WITH THAT AMENDMENT THE PROVISION OF THE JONES ACT
THAT STATUTES "MODIFYING OR EXTENDING THE COMMON-LAW RIGHT OR REMEDY IN
CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES" SHALL APPLY IN A
SEAMAN'S ACTION.  WE AGREE WITH THE COURT BELOW THAT THE AMENDMENT HAS
NO EFFECT ON THE "RIGHT OR REMEDY" OF RAILWAY EMPLOYEES BUT MERELY
REDEFINES FOR THE PURPOSES OF THE FEDERAL EMPLOYERS' LIABILITY ACT THE
SCOPE OF THE WORD "EMPLOYEE" TO INCLUDE CERTAIN PERSONS NOT THERETOFORE
COVERED, BECAUSE THEY WERE NOT DIRECTLY ENGAGED IN INTERSTATE OR
FOREIGN COMMERCE.  IT DOES NOT EXTEND THE MEANING OF "SEAMAN" IN THE
JONES ACT TO INCLUDE ONE WHO WAS NOT A "SEAMAN" BEFORE.  SEAMEN WERE
GIVEN THE RIGHTS OF RAILWAY EMPLOYEES BY THE JONES ACT, BUT THE
DEFINITION OF "SEAMAN" WAS NEVER MADE DEPENDENT ON THE MEANING OF
"EMPLOYEE" AS USED IN LEGISLATION APPLICABLE TO RAILROADS. 

THE NEXT QUESTION IS WHETHER, WITHOUT REFERENCE TO THIS 1939
AMENDMENT, DECEDENT WAS A "SEAMAN" AT THE TIME OF HIS DEATH.  THE MANY
CASES TURNING UPON THE QUESTION WHETHER AN INDIVIDUAL WAS A "SEAMAN"
DEMONSTRATE THAT THE MATTER DEPENDS LARGELY ON THE FACTS OF THE
PARTICULAR CASE AND THE ACTIVITY IN WHICH HE WAS ENGAGED AT THE TIME OF
INJURY.  THE FACTS IN THIS CASE ARE UNIQUE.  THE WORK IN WHICH THE
DECEDENT WAS ENGAGED AT THE TIME OF HIS DEATH QUITE CLEARLY WAS NOT
THAT USUALLY DONE BY A "SEAMAN."  THE BOATS WERE NOT AFLOAT AND HAD
NEITHER CAPTAIN NOR CREW.  THEY WERE UNDERGOING SEASONAL REPAIRS, THE
WORK BEING OF THE KIND THAT, IN THE CASE OF LARGER VESSELS, WOULD
CUSTOMARILY BE DONE BY EXCLUSIVELY SHORE-BASED PERSONNEL.  FOR A NUMBER
OF REASONS THE SHIPS MIGHT NOT BE LAUNCHED, OR HE MIGHT NOT OPERATE
ONE.  TO BE SURE, HE WAS A PROBABLE NAVIGATOR IN THE NEAR FUTURE, BUT
THE LAW DOES NOT COVER PROBABLE OR EXPECTANT SEAMEN BUT SEAMEN IN
BEING.  IT IS OUR CONCLUSION THAT WHILE ENGAGED IN SUCH SEASONAL REPAIR
WORK DESPER WAS NOT A "SEAMAN" WITHIN THE PURVIEW OF THE JONES ACT. 
THE DISTINCT NATURE OF THE WORK IS EMPHASIZED BY THE FACT THAT THERE
WAS NO VESSEL ENGAGED IN NAVIGATION AT THE TIME OF THE DECEDENT'S
DEATH.  ALL HAD BEEN "LAID UP FOR THE WINTER."  HAWN V. AMERICAN S.S.
CO., 107 F.2D 999, 1000 (C.A.2D CIR.); CF. SENECA WASHED GRAVEL CORP.
V. MCMANIGAL, 65 F.2D 779, 780 (C.A.2D CIR.).  IN THE WORDS OF THE
COURT IN ANTUS V. INTEROCEAN S.S. CO., 108 F.2D 185, 187 (C.A. 6TH
CIR.), WHERE IT WAS HELD THAT ONE WHO HAD BEEN A MEMBER OF A SHIP'S
CREW AND WAS INJURED WHILE PREPARING IT FOR WINTER QUARTERS COULD NOT
MAINTAIN A JONES ACT SUIT FOR HIS INJURIES:  "THE FACT THAT HE HAD
BEEN, OR EXPECTED IN THE FUTURE TO BE, A SEAMAN DOES NOT RENDER
MARITIME WORK WHICH WAS NOT MARITIME IN ITS NATURE." 

BOTH PETITIONER AND RESPONDENT FILED APPLICATIONS WITH THE INDUSTRIAL
COMMISSION OF ILLINOIS SEEKING THE BENEFITS PROVIDED BY THE WORKMEN'S
COMPENSATION ACT OF THAT STATE.  THE COMMISSIONER RENDERED AN AWARD IN
PETITIONER'S FAVOR, BUT SHE STATES THAT SHE HAS TAKEN AN APPEAL TO THE
APPROPRIATE STATE COURT ON THE GROUND THAT THE COMMISSION WAS "WITHOUT
JURISDICTION."  SHE DOES NOT SPECIFY WHY SHE THINKS SO, BUT WE SURMISE
THAT HER REASON IS TO AVOID CONFLICT WITH HER CONTENTION THAT EXCLUSIVE
JURISDICTION IN THE PREMISES IS VESTED IN THE FEDERAL COURTS BY THE
JONES ACT.  WE DO NOT UNDERSTAND HER TO HAVE TAKEN THE POSITION THAT IF
THE JONES ACT IS NOT APPLICABLE THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT (FN6) IS, AND THAT THE STATE COMMISSION, THEREFORE, IS
WITHOUT JURISDICTION IN ANY EVENT.  THE QUESTION OF THE APPLICABILITY
OF THE LONGSHOREMEN'S ACT DOES NOT APPEAR FROM THE RECORD TO HAVE BEEN
RAISED BY EITHER PARTY IN THE COURTS BELOW.  (FN7)  NEITHER HAS RAISED
IT IN THIS COURT.  WE, THEREFORE, FIND IT INAPPROPRIATE TO RESOLVE THE
CONFLICT, IF ANY, BETWEEN THE ILLINOIS COMPENSATION ACT AND THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT.  CF. SOUTHERN
PACIFIC CO. V. JENSEN, 244 U.S. 205; PARKER V. MOTOR BOAT SALES, 314
U.S. 244; DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249. 

WE THINK THE COURT BELOW PROPERLY DISPOSED OF THE QUESTION
PRESENTED.  ACCORDINGLY, ITS JUDGMENT IS AFFIRMED. 

FN1  38 STAT. 1185, 41 STAT. 1007, 46 U.S.C. SEC. 688. 

FN2  188 F.2D 177. 

FN3  342 U.S. 847. 

FN4  38 STAT. 1185, 41 STAT. 1007, 46 U.S.C. SEC. 688, ENTITLED
"RECOVERY FOR INJURY TO OR DEATH OF SEAMAN" PROVIDES THAT: 

"ANY SEAMAN WHO SHALL SUFFER PERSONAL INJURY IN THE COURSE OF HIS
EMPLOYMENT MAY, AT HIS ELECTION, MAINTAIN AN ACTION FOR DAMAGES AT LAW,
WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL STATUTES OF THE
UNITED STATES MODIFYING OR EXTENDING THE COMMON-LAW RIGHT OR REMEDY IN
CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES SHALL APPLY; AND IN CASE
OF THE DEATH OF ANY SEAMAN AS A RESULT OF ANY SUCH PERSONAL INJURY THE
PERSONAL REPRESENTATIVE OF SUCH SEAMAN MAY MAINTAIN AN ACTION FOR
DAMAGES AT LAW WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL
STATUTES OF THE UNITED STATES CONFERRING OR REGULATING THE RIGHT OF
ACTION FOR DEATH IN THE CASE OF RAILWAY EMPLOYEES SHALL BE APPLICABLE. 
JURISDICTION IN SUCH ACTIONS SHALL BE UNDER THE COURT OF THE DISTRICT
IN WHICH THE DEFENDANT EMPLOYER RESIDES OR IN WHICH HIS PRINCIPAL
OFFICE IS LOCATED." 

FN5  53 STAT. 1404, 45 U.S.C. SEC. 51. 

FN6  44 STAT. 1424 AS AMENDED, 33 U.S.C. SEC. 901 ET SEQ. 

FN7  THE COURT OF APPEALS, HOWEVER, IN PHRASING THE QUESTION
PRESENTED IN THE CASE, ADVANCED THE PROPOSITION THAT IF PETITIONER WAS
NOT ENTITLED TO RECOVERY UNDER THE JONES ACT SHE "IS RESTRICTED TO THE
REMEDY AFFORDED BY THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT  ...  ."  WE TAKE THAT AS MEANING THAT PETITIONER'S ONLY FEDERAL
REMEDY, IF SHE CANNOT PREVAIL UNDER THE JONES ACT, IS IN THE
LONGSHOREMEN'S ACT.  IT WAS NOT INTENDED TO DECIDE WHETHER SHE COULD
PROCEED UNDER THE STATE COMPENSATION ACT. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT, AND WOULD AFFIRM
THE JUDGMENT OF THE DISTRICT COURT. 
..END :










UNITED STATES V. KELLY 342 U.S. 193 


NO. 209.  ARGUED NOVEMBER 30, 1951 - DECIDED JANUARY 2, 1952 - 119 CT.
CL. 197, 96 F. SUPP. 611, AFFIRMED. 


UNDER THE APPLICABLE WAGE AGREEMENT QUOTED IN THE OPINION AND THE
JOINT RESOLUTION OF JUNE 29, 1938, 5 U.S.C. SEC. 86A, GRANTING PER DIEM
EMPLOYEES OF THE GOVERNMENT GRATUITY PAY FOR HOLIDAYS ON WHICH THEY ARE
PREVENTED FROM WORKING, PER DIEM EMPLOYEES OF THE GOVERNMENT PRINTING
OFFICE WHO WERE REQUIRED TO WORK ON HOLIDAYS DURING WORLD WAR II ARE
ENTITLED TO AGGREGATE PAY THEREFOR AT THE RATE OF 2 1/2 TIMES THE
REGULAR RATE.  PP. 193-196. 

(A)  MERELY BECAUSE THE RESOLUTION ITSELF MAY NOT AWARD GRATUITY PAY
FOR HOLIDAYS WORKED IS NO GROUND FOR VITIATING A WAGE AGREEMENT THAT
DOES.  PP. 194-195. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY THE PRESIDENTIAL DIRECTIVE
OF MAY 12, 1943, THAT, FOR THE DURATION OF THE WAR, ALL HOLIDAYS EXCEPT
CHRISTMAS SHOULD BE CONSIDERED REGULAR WORKDAYS FOR GOVERNMENT
EMPLOYEES.  PP. 195-196. 

UNITED STATES V. KELLY ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS AWARDED RESPONDENT A JUDGMENT FOR PREMIUM PAY AND
GRATUITY PAY FOR WORK PERFORMED BY HIM ON CERTAIN HOLIDAYS DURING WORLD
WAR II.  119 CT. CL. 197, 96 F. SUPP. 611.  THE GOVERNMENT SOUGHT
REVIEW OF THAT PART OF THE JUDGMENT AWARDING GRATUITY PAY, AND THIS
COURT GRANTED CERTIORARI.  342 U.S. 808.  AFFIRMED, P. 196. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE COURT OF CLAIMS AWARDED JUDGMENT TO RESPONDENT, A PER DIEM
EMPLOYEE OF THE GOVERNMENT PRINTING OFFICE, FOR PREMIUM PAY AND
GRATUITY PAY FOR WORK PERFORMED BY HIM ON CERTAIN HOLIDAYS DURING WORLD
WAR II.  119 CT. CL. 197, 96 F. SUPP. 611.  THUS, RESPONDENT WAS HELD
ENTITLED TO THE AGGREGATE OF: 

1.  HIS REGULAR COMPENSATION FOR THE DAYS WORKED: 

2.  FIFTY PER CENT OF HIS REGULAR COMPENSATION AS PREMIUM PAY: 

3.  A FULL DAY'S COMPENSATION AS GRATUITY PAY. 

THE GOVERNMENT SOUGHT REVIEW OF THAT PART OF THE JUDGMENT WHICH
AWARDED GRATUITY PAY TO RESPONDENT AND OTHERS LIKE HIM, (FN1) AND WE
GRANTED CERTIORARI, 342 U.S. 808. 

RESPONDENT'S COMPENSATION WAS FIXED BY A WAGE AGREEMENT WHICH
PROVIDES IN PERTINENT PART: 

"HOLIDAY RATE.  EMPLOYEES REQUIRED TO WORK ON A LEGAL HOLIDAY OR A
SPECIAL HOLIDAY DECLARED BY EXECUTIVE ORDER SHALL BE PAID AT THE DAY
RATE PLUS 50 PER CENT FOR ALL THE TIME ACTUALLY EMPLOYED IN ADDITION TO
THEIR GRATUITY PAY FOR THE HOLIDAY AS PROVIDED BY LAW  ...  ." 

BY A 1938 RESOLUTION, THE APPLICABLE LAW DURING THE PERIOD IN
QUESTION, CONGRESS PROVIDED THAT WHENEVER PER DIEM EMPLOYEES WERE
"RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE
OF" HOLIDAYS DECLARED BY STATUTE OR EXECUTIVE ORDER, "THEY SHALL
RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN
ORDINARY DAY'S WORK IS PERFORMED."  (FN2)  THE QUESTION THUS PRESENTED
IS WHETHER THE RESOLUTION SOMEHOW PRECLUDES THE AWARDING OF THE
GRATUITY PAY WHICH THE AGREEMENT SEEMS TO GRANT. 

THE 1938 RESOLUTION AMENDED THE ACT OF 1895 (FN3) WHICH HAD BEEN
CONSISTENTLY ADMINISTERED AS PROVIDING FOR GRATUITY PAY IN ADDITION TO
REGULAR COMPENSATION IF THE EMPLOYEE WORKED ON A HOLIDAY.  (FN4)  THE
GOVERNMENT CONTENDS THAT CONGRESS INTENDED TO REPEAL THE EARLIER
STATUTE IN THIS RESPECT, AND THAT THE RESOLUTION PROVIDED GRATUITY PAY
ONLY FOR HOLIDAYS ON WHICH AN EMPLOYEE IS "RELIEVED OR PREVENTED FROM
WORKING." 

WE THINK THIS ARGUMENT MISSES THE POINT.  THE 1938 RESOLUTION
ESTABLISHED THE HOLIDAYS FOR WHICH GRATUITY PAY WAS TO BE ALLOWED.  IT
WAS SILENT ON THE SUBJECT OF GRATUITY PAY FOR HOLIDAYS ON WHICH WORK
WAS PERFORMED, AND WE MAY EVEN ASSUME THAT IT DID NOT PROVIDE GRATUITY
PAY FOR THOSE DAYS.  BUT THE WAGE AGREEMENT IS NOT SILENT ON THE
SUBJECT.  IT PROVIDES THAT WHEN AN EMPLOYEE WORKS ON A HOLIDAY HE IS TO
RECEIVE REGULAR COMPENSATION, PREMIUM PAY, AND GRATUITY PAY "FOR THE
HOLIDAY AS PROVIDED BY LAW."  THE HOLIDAYS "AS PROVIDED BY LAW" ARE THE
DAYS PROVIDED FOR IN THE 1938 RESOLUTION.  NOTHING IN THE RESOLUTION
PROHIBITS SUCH A WAGE AGREEMENT, AND, INDEED, THE GOVERNMENT CONCEDES
THIS FACT.  MERELY BECAUSE THE RESOLUTION ITSELF MAY NOT AWARD GRATUITY
PAY FOR HOLIDAYS WORKED IS NO GROUND FOR VITIATING A WAGE AGREEMENT
WHICH DOES. 

THE GOVERNMENT POINTS TO THE 1943 PRESIDENTIAL DIRECTIVE TO FEDERAL
AGENCIES, UNDER WHICH ALL HOLIDAYS EXCEPT CHRISTMAS WERE TO BE
CONSIDERED AS REGULAR WORKDAYS FOR THE DURATION OF THE WAR, (FN5) AND
URGES THAT THE DIRECTIVE INDICATED A POLICY AGAINST THE PAYMENT OF
GRATUITY PAY FOR HOLIDAYS WORKED.  CLEARLY, THE PRESIDENTIAL DIRECTIVE
WAS NOT INTENDED TO ABROGATE THE WAGE AGREEMENT. 

WE NEED NOT STOP TO CONSIDER THE ANOMALOUS RESULTS WHICH WOULD STEM
FROM THE GOVERNMENT'S POSITION.  (FN6)  SINCE THE AGREEMENT PROVIDED
FOR GRATUITY PAY FOR HOLIDAYS WORKED, RESPONDENT WAS ENTITLED TO SUCH
PAY.  ACCORDINGLY, THE JUDGMENT BELOW IS AFFIRMED. 

FN1  THE PARTIES HAVE STIPULATED THAT THE DISPOSITION OF THE CLAIM OF
RESPONDENT KELLY WILL BE DETERMINATIVE OF CLAIMS FILED BY 613 OTHER
EMPLOYEES OF THE PRINTING OFFICE. 

FN2  52 STAT. 1246, 5 U.S.C. SEC. 86A. 

FN3  28 STAT. 601, 607, SEC. 46. 

FN4  8 COMP. DEC. 322 (1901); 13 COMP. DEC. 40 (1906); 3 COMP. GEN.
411 (1924). 

FN5  SEE DIGEST OF PROVISIONS OF LAW FIXING PAY FOR EMPLOYEES IN THE
EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT (U.S. CIVIL SERVICE
COMMISSION, 1945), AT P. 94, NOTE 2; H.R. REP.  NO. 514, 79TH CONG.,
1ST SESS., APPENDIX, P. 94, NOTE 2. 

FN6  THUS, UNDER THE GOVERNMENT'S VIEW AN EMPLOYEE WHO WORKED FIVE
HOURS ON A HOLIDAY WOULD RECEIVE HIS REGULAR COMPENSATION PLUS PREMIUM
PAY, OR SEVEN AND ONE-HALF HOURS' PAY; IF HE STAYED HOME ALL DAY, HE
WOULD RECEIVE EIGHT HOURS' PAY. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE BLACK
JOIN, DISSENTING. 

THE 1938 RESOLUTION REFERS ONLY TO HOLIDAYS THAT "RELIEVED OR
PREVENTED" WORK.  IT REQUIRES A GRATUITY PAYMENT TO THEM EQUAL TO THE
REGULAR DAILY WAGE.  WHERE WORK IS DONE, AS BY THESE PER DIEM
EMPLOYEES, NO GRATUITY IS "PROVIDED BY LAW."  UNDER THE WAGE AGREEMENT,
HOWEVER, AN EMPLOYEE WORKING SHOULD BE PAID TIME AND A HALF FOR HOLIDAY
WORK - A PREMIUM OF FIFTY PER CENT MORE THAN THE GRATUITY PAID TO AN
EMPLOYEE WHO DOES NOT WORK. 

THE GOVERNMENT CONCEDES THAT THE WAGE AGREEMENT ENTITLES THE
EMPLOYEES TO THIS PREMIUM PAY FOR WORK ON HOLIDAYS.  IN OUR OPINION
RESPONDENTS ARE NOT ENTITLED TO ANY GRATUITY PAY, AND THIS HAS BEEN THE
CONSISTENT ADMINISTRATIVE INTERPRETATION OF THE COMPTROLLER GENERAL. 
18 COMP. GEN. 191.  IT IS SIGNIFICANT THAT THE JOURNEYMEN PRINTERS
ACQUIESCED IN THIS INTERPRETATION FOR EIGHT YEARS AFTER 1938. 

WE WOULD REVERSE. 
..END :




















PILLSBURY V. UNITED ENGINEERING CO. 342 U.S. 197 


NO. 229.  ARGUED DECEMBER 6, 1951 - DECIDED JANUARY 2, 1952 - 187 F.2D
987, AFFIRMED. 


UNDER SEC. 13(A) OF THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, THE ONE-YEAR PERIOD OF LIMITATION ON THE FILING OF
CLAIMS FOR COMPENSATION FOR DISABILITY BEGINS TO RUN ON THE DATE OF THE
INJURY AND NOT ON SOME SUBSEQUENT DATE WHEN DISABILITY OCCURS.  PP. 197
200. 

PILLSBURY ET AL., DEPUTY COMMISSIONERS, V. UNITED ENGINEERING CO. ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

THE DISTRICT COURT VACATED CERTAIN AWARDS OF COMPENSATION UNDER THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT.  92 F. SUPP. 898. 
THIS COURT OF APPEALS AFFIRMED.  187 F.2D 987.  THIS COURT GRANTED
CERTIORARI.  342 U.S. 847.  AFFIRMED, P. 200. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THESE FOUR CASES PRESENT THE SAME QUESTION, NAMELY, THE CONSTRUCTION
AND APPLICATION OF THE STATUTE OF LIMITATIONS PROVISION OF THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 44 STAT. 1424,
SEC. 13(A), 33 U.S.C. SEC. 913(A), WHICH PROVIDES IN PERTINENT PART AS
FOLLOWS: 

"THE RIGHT TO COMPENSATION FOR DISABILITY UNDER THIS ACT SHALL BE
BARRED UNLESS A CLAIM THEREFOR IS FILED WITHIN ONE YEAR AFTER THE
INJURY  ...  ." 

THE CLAIMS HERE INVOLVED WERE FILED FROM EIGHTEEN TO TWENTY-FOUR
MONTHS FROM THE DATES THE EMPLOYEES WERE INJURED.  THE DEPUTY
COMMISSIONER HELD THAT THE CLAIMS WERE NEVERTHELESS TIMELY, SINCE THEY
HAD BEEN FILED WITHIN ONE YEAR AFTER THE CLAIMANTS HAD BECOME DISABLED
BECAUSE OF THEIR INJURIES.  THE DISTRICT COURT VACATED THE AWARDS, 92
F. SUPP. 898, AND THE COURT OF APPEALS AFFIRMED ON THE GROUND THAT THE
CLAIMS WERE BARRED BECAUSE NOT "FILED WITHIN ONE YEAR AFTER THE
INJURY,"  187 F.2D 987, 990.  WE GRANTED CERTIORARI, 342 U.S. 847,
BECAUSE OF A CONFLICT BETWEEN CIRCUITS, (FN1) IDENTICAL TO THE PRESENT
CONFLICT BETWEEN THE HOLDINGS OF THE DEPUTY COMMISSIONER AND THE COURT
OF APPEALS, AS TO THE CONSTRUCTION TO BE GIVEN THE LIMITATIONS
PROVISION.  THIS SAME QUESTION WAS BEFORE US IN 1940 IN KOBILKIN V.
PILLSBURY, 103 F.2D 667, AFFIRMED BY AN EQUALLY DIVIDED COURT, 309 U.S.
619. 

PETITIONERS CONTEND THAT THE WORD "INJURY" AS USED IN THE STATUTE
SHOULD BE CONSTRUED TO MEAN "DISABILITY."  THIS CONTENTION IS PREMISED
ON PETITIONERS' CONCLUSION THAT SEC. 6(A) OF THE ACT, WHICH PROVIDES
THAT "NO COMPENSATION SHALL BE ALLOWED FOR THE FIRST SEVEN DAYS OF THE
DISABILITY," (FN2) ("DISABILITY" IS ELSEWHERE DEFINED IN THE ACT AS
"INCAPACITY BECAUSE OF INJURY TO EARN THE WAGES WHICH THE EMPLOYEE WAS
RECEIVING AT THE TIME OF INJURY IN THE SAME OR ANY OTHER EMPLOYMENT")
(FN3) AND SEC. 19(A), WHICH PROVIDES THAT "A CLAIM  ...  MAY BE FILED
...  AT ANY TIME AFTER THE FIRST SEVEN DAYS OF DISABILITY FOLLOWING ANY
INJURY," (FN4) OPERATE TO PREVENT THE FILING OF A CLAIM BEFORE SEVEN
DAYS OF DISABILITY HAVE OCCURRED.  SINCE, AS WAS THE CASE OF EACH OF
THE CLAIMANTS HERE, AN INJURED EMPLOYEE MAY FAIL TO ACCRUE SEVEN
DAYS'"DISABILITY" WITHIN A YEAR AFTER HIS INJURY, PETITIONERS ARGUE
THAT SUCH AN EMPLOYEE WILL BE BARRED FROM FILING HIS CLAIM BEFORE HIS
RIGHT TO FILE IT ARISES, IF "INJURY" IS CONSTRUED TO MEAN "INJURY." 
THUS, PETITIONERS CONCLUDE THAT THE LIMITATION SHOULD NOT BE MADE TO
RUN UNTIL THE INJURY BECOMES COMPENSABLE, I.E., AFTER SEVEN
DAYS'"DISABILITY." 

BUT THE RIGHT TO RECOVER FOR DISABILITY IS ONE THING, AND THE RIGHT
TO FILE A CLAIM IS ANOTHER.  IT HAS LONG BEEN THE PRACTICE OF THE
DEPUTY COMMISSIONER TO PERMIT FILING TO AVOID THE RUNNING OF THE ONE
YEAR LIMITATION PERIOD HERE INVOLVED.  A PROPER INTERPRETATION OF SECS.
6(A) AND 19(A) DOES NOT PROHIBIT THE FILING OF A CLAIM BEFORE THE
ACCRUAL OF SEVEN DAYS' DISABILITY.  EACH OF THE CLAIMANTS HERE WAS
IMMEDIATELY AWARE OF HIS INJURY, RECEIVED MEDICAL TREATMENT, AND
SUFFERED CONTINUOUS PAIN.  WE ARE NOT HERE DEALING WITH A LATENT INJURY
OR AN OCCUPATIONAL DISEASE. 

WE ARE NOT FREE, UNDER THE GUISE OF CONSTRUCTION, TO AMEND THE
STATUTE BY INSERTING THEREIN BEFORE THE WORD "INJURY" THE WORD
"COMPENSABLE" SO AS TO MAKE "INJURY" READ AS IF IT WERE "DISABILITY." 
CONGRESS KNEW THE DIFFERENCE BETWEEN "DISABILITY" AND "INJURY" AND USED
THE WORDS ADVISEDLY.  THIS VIEW IS ESPECIALLY COMPELLING WHEN IT IS
NOTED THAT THE TWO WORDS ARE USED IN THE SAME SENTENCE OF THE
LIMITATIONS PROVISION; THEREIN "DISABILITY" IS RELATED TO THE RIGHT TO
COMPENSATION, WHILE "INJURY" IS RELATED TO THE PERIOD WITHIN WHICH THE
CLAIM MUST BE FILED.  FURTHERMORE, CONGRESS DEFINED BOTH "DISABILITY"
AND "INJURY" IN THE ACT, (FN5) AND ITS AWARENESS OF THE DIFFERENCE IS
APPARENT THROUGHOUT.  THUS, WE THINK THAT WHEN CONGRESS USED
"DISABILITY" AND "INJURY" IN THE SAME SENTENCE, MAKING EACH WORD
APPLICABLE TO A DIFFERENT THING, IT DID NOT INTEND THE CAREFULLY
DISTINGUISHED AND SEPARATELY DEFINED WORDS TO MEAN THE SAME THING. 
CONGRESS MEANT WHAT IT SAID WHEN IT LIMITED RECOVERY TO ONE YEAR FROM
DATE OF INJURY, AND "INJURY" DOES NOT MEAN "DISABILITY." 

WE ARE AWARE THAT THIS IS A HUMANITARIAN ACT, AND THAT IT SHOULD BE
CONSTRUED LIBERALLY TO EFFECTUATE ITS PURPOSES; BUT THAT DOES NOT GIVE
US THE POWER TO REWRITE THE STATUTE OF LIMITATIONS AT WILL, AND MAKE
WHAT WAS INTENDED TO BE A LIMITATION NO LIMITATION AT ALL. 
PETITIONERS' CONSTRUCTION WOULD HAVE THE EFFECT OF EXTENDING THE
LIMITATION INDEFINITELY IF A CLAIM FOR DISABILITY HAD NOT BEEN FILED;
THE PROVISION WOULD THEN BE ONE OF EXTENSION RATHER THAN LIMITATION. 
WHILE IT MIGHT BE DESIRABLE FOR THE STATUTE TO PROVIDE AS PETITIONERS
CONTEND, THE POWER TO CHANGE THE STATUTE IS WITH CONGRESS, NOT US. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  THE CONFLICT IS BETWEEN THE INSTANT DECISION OF THE COURT OF
APPEALS FOR THE NINTH CIRCUIT AND THE DECISION OF THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT IN GREAT AMERICAN INDEMNITY CO. V.
BRITTON, 86 U.S. APP. D.C. 44, 179 F.2D 60. 

FN2  44 STAT. 1426, 33 U.S.C. SEC. 906(A). 

FN3  44 STAT. 1425, 33 U.S.C. SEC. 902(10). 

FN4  44 STAT. 1435, 33 U.S.C. SEC. 919(A). 

FN5  "SEC.  2.  WHEN USED IN THIS ACT: 

*         *         *         *         * 

"(2)  THE TERM 'INJURY' MEANS ACCIDENTIAL INJURY OR DEATH ARISING OUT
OF AND IN THE COURSE OF EMPLOYMENT, AND SUCH OCCUPATIONAL DISEASE OR
INFECTION AS ARISES NATURALLY OUT OF SUCH EMPLOYMENT OR AS NATURALLY OR
UNAVOIDABLY RESULTS FROM SUCH ACCIDENTIAL INJURY, AND INCLUDES AN
INJURY CAUSED BY THE WILLFUL ACT OF A THIRD PERSON DIRECTED AGAINST AN
EMPLOYEE BECAUSE OF HIS EMPLOYMENT. 

*         *         *         *         * 

"(10)  'DISABILITY' MEANS INCAPACITY BECAUSE OF INJURY TO EARN THE
WAGES WHICH THE EMPLOYEE WAS RECEIVING AT THE TIME OF INJURY IN THE
SAME OR ANY OTHER EMPLOYMENT."  44 STAT. 1424-1425, 33 U.S.C. SEC.
902(2), (10). 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

THE COURT'S COMPUTATION OF THE PERIOD ALLOWED FOR FILING CLAIMS UNDER
THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT IS SO OPPOSED
TO THE BENEFICIAL PURPOSE OF THE ACT THAT IT IS NOT JUSTIFIED IN THE
ABSENCE OF A MORE EXPRESS BASIS FOR IT.  THE PURPOSE OF THE ACT IS TO
PROVIDE COMPENSATION FOR THE DISABILITY OR DEATH OF EMPLOYEES IN
CERTAIN MARITIME EMPLOYMENTS WHEN CAUSED BY INJURIES ARISING OUT OF AND
IN THE COURSE OF THEIR EMPLOYMENT.  THE COURT NOW RESTRICTS THE
BENEFICIAL EFFECT OF THE ACT BY ITS COMPUTATION OF THE PERIOD ALLOWED
AN EMPLOYEE FOR FILING HIS CLAIM UNDER THE ACT.  THE COURT COMPUTES IT
FROM THE DATE OF THE EMPLOYEE'S ACCIDENT RATHER THAN FROM THAT OF HIS
RIGHT TO COMPENSATION.  ONE YEAR AFTER HIS ACCIDENT THE EMPLOYEE IS
THUS BARRED FROM CLAIMING COMPENSATION FOR ANY DISABILITY LATER
RESULTING FROM IT UNLESS, WITHIN THAT YEAR, HE HAS FILED A CLAIM FOR
COMPENSATION - ALTHOUGH DURING THE YEAR HE HAS SUFFERED NO DISABILITY
AND HAS ACQUIRED NO RIGHT TO COMPENSATION UNDER THE ACT. 

THE ACT DOES NOT CALL FOR OR JUSTIFY SUCH A FRUSTRATING
INTERPRETATION.  SECTION 13(A) DOES NOT SAY THAT AN EMPLOYEE'S CLAIM
MUST BE FILED WITHIN ONE YEAR AFTER THE "ACCIDENT."  IT SAYS THAT HIS
CLAIM MUST BE FILED "WITHIN ONE YEAR AFTER THE INJURY."  44 STAT. 1432,
33 U.S.C. SEC. 913(A).  THE ACT DEALS ONLY WITH DISABLING INJURIES AND
PROVIDES COMPENSATION ONLY FOR THE LOSS OF EARNING POWER OR DEATH
RESULTING FROM THEM.  IF IT IS RECOGNIZED THAT THE WORD "INJURY" IN
SEC. 13(A) MEANS A DISABLING OR COMPENSABLE INJURY, A NATURAL RESULT
FLOWS FROM IT.  SO INTERPRETED, THE SECTION REQUIRES ONLY THAT A CLAIM
FOR COMPENSATION MUST BE FILED WITHIN ONE YEAR AFTER A RIGHT TO
COMPENSATION FIRST ARISES. 

THAT THE ACT IS CONCERNED SOLELY WITH COMPENSATION FOR DISABILITY OR
DEATH APPEARS ON ITS FACE.  COMPENSATION IS NOT PAYABLE TO AN EMPLOYEE
MERELY BECAUSE HE HAS BEEN IN AN ACCIDENT IN THE COURSE OF HIS
EMPLOYMENT, NOR EVEN BECAUSE HE HAS SUFFERED PHYSICAL DAMAGE FROM THAT
ACCIDENT.  THE ACT ALLOWS COMPENSATION ONLY WHEN THE EMPLOYEE ALSO HAS
SUFFERED A RESULTING LOSS OF EARNING POWER. 

THE ACT EXPRESSLY LIMITS "INJURIES" TO THOSE OF A CERTAIN ORIGIN BY
STATING THAT THEY MUST ARISE OUT OF AND IN THE COURSE OF THE EMPLOYEE'S
EMPLOYMENT.  (FN1) IT ALLOWS COMPENSATION ONLY FOR RESULTING DISABILITY
OR DEATH.  (FN2)  IT DEFINES THE REQUIRED DISABILITY AS A DIMINUTION OF
EARNING POWER.  (FN3) 

ACT, HAS A REASONABLE EFFECT IF IT IS READ AS CONCERNED ONLY WITH
COMPENSABLE INJURIES.  (FN4)  ON THE OTHER HAND, TO INTERPRET SEC.
13(A) AS CUTTING OFF THE PERIOD FOR FILING CLAIMS ONE YEAR AFTER THE
DATE OF THE ACCIDENT IS TO MEASURE THE PERIOD FROM A DATE BEARING NO
CERTAIN RELATION TO THE TIME WHEN A RIGHT TO COMPENSATION ARISES.  IF
AN EMPLOYEE'S INJURY CAUSES HIM NO DIMINUTION OF EARNING POWER WITHIN
ONE YEAR AFTER THE ACCIDENT, HE IS ENTITLED TO NO COMPENSATION WITHIN
THAT YEAR.  YET, UNDER THE COURT'S INTERPRETATION OF SEC. 13(A), HE
WILL BE BARRED ALSO FROM CLAIMING COMPENSATION FOR SUBSEQUENTLY
RESULTING DISABILITIES UNLESS, WITHIN THE FIRST YEAR FOLLOWING HIS
ACCIDENT, HE HAS FILED A CLAIM FOR COMPENSATION.  THE INSTANT CASES
SHOW HOW READILY SUCH SITUATIONS MAY ARISE. 

THE LEGISLATIVE HISTORY OF SEC. 13(A) IS CONSISTENT WITH THE
PETITIONERS' INTERPRETATION.  (FN5) THEIR INTERPRETATION ALSO HAS HAD
JUDICIAL SUPPORT FROM THE APPELLATE COURTS OF THE DISTRICT OF COLUMBIA
CIRCUIT AND THE THIRD CIRCUIT.  SEE GREAT AMERICAN INDEMNITY CO. V.
BRITTON, 86 U.S. APP. D.C. 44, 179 F.2D 60; POTOMAC ELECTRIC POWER CO.
V. CARDILLO, 71 APP. D.C. 163, 107 F.2D 962; DI GIORGIO FRUIT CORP. V.
NORTON, 93 F.2D 119 (C.A. 3D CIR.). 

BEFORE THE ENACTMENT OF THIS COMPENSATION ACT BY CONGRESS, SEVERAL
STATES HAD INTERPRETED "INJURY" IN COMPARABLE PROVISIONS OF THEIR
COMPENSATION ACTS TO MEAN "COMPENSABLE INJURY" RATHER THAN "ACCIDENT." 
ESPOSITO V. MARLIN-ROCKWELL CORP., 96 CONN. 414, 114 A. 92; GUDERIAN V.
STERLING S.&R. CO., 151 LA. 59, 91 SO. 546; HUSTUS' CASE, 123 ME. 428,
123 A. 514.  CF. HORNBROOK-PRICE CO. V. STEWART, 66 IND. APP. 400, 118
N.E. 315; IN RE MCCASKEY, 65 IND. APP.  349, 117 N.E. 268.  CONTRA:
COOKE V. HOLLAND FURNACE CO., 200 MICH. 192, 166 N.W. 1013. 

TO DETERMINE WHEN THE ONE-YEAR PERIOD FOR FILING CLAIMS BEGINS IT IS
NECESSARY TO DETERMINE THE DATE WHEN THE EMPLOYEE'S INJURY RESULTED IN
A DIMINUTION OF HIS EARNING POWER.  THAT DATE IS NOT NECESSARILY
COINCIDENT WITH THAT OF THE FIRST PHYSICAL DAMAGE TO THE EMPLOYEE OR
THE FIRST REDUCTION IN THE RATE OF WAGES ACTUALLY PAID HIM.  IN THE
INSTANT CASES THE RESPECTIVE DEPUTY COMMISSIONERS EXPRESSLY FOUND THAT
EACH CLAIM WAS FILED WITHIN ONE YEAR AFTER THE EMPLOYEE'S DISABILITY
OCCURRED, ALTHOUGH NONE OF THE CLAIMS WERE FILED WITHIN ONE YEAR AFTER
THE ACCIDENT IN QUESTION.  THESE FINDINGS ARE SUPPORTED BY SUBSTANTIAL
EVIDENCE IN THE RECORD TAKEN AS A WHOLE.  SEE O'LEARY V. BROWN-PACIFIC
MAXON, INC., 340 U.S. 504.  ACCORDINGLY, I WOULD HOLD EACH OF THE
CLAIMS TIMELY AND WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS
WITH DIRECTIONS TO REMAND THE CASES TO THE DISTRICT COURT FOR DISMISSAL
OF THE SEVERAL COMPLAINTS. 

FN1  "SEC.  2.  WHEN USED IN THIS ACT: 

     *         *         *       *         * 

"(2)  THE TERM 'INJURY' MEANS ACCIDENTAL INJURY OR DEATH ARISING OUT
OF AND IN THE COURSE OF EMPLOYMENT, AND SUCH OCCUPATIONAL DISEASE OR
INFECTION AS ARISES NATURALLY OUT OF SUCH EMPLOYMENT OR AS NATUALLY OR
UNAVOIDABLY RESULTS FROM SUCH ACCIDENTAL INJURY, AND INCLUDES AN INJURY
CAUSED BY THE WILLFUL ACT OF A THIRD PERSON DIRECTED AGAINST AN
EMPLOYEE BECAUSE OF HIS EMPLOYMENT."  44 STAT. 1424-1425, 33 U.S.C.
SEC. 902(2). 

FN2  "SEC.  3.  (A)  COMPENSATION SHALL BE PAYABLE UNDER THIS ACT 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  ...  ."  44 STAT. 1426, 33
U.S.C. SEC. 903(A). 

FN3  "SEC.  2.  WHEN USED IN THIS ACT: 

     *     *         *         *         * 

"(10)  'DISABILITY' MEANS INCAPACITY BECAUSE OF INJURY TO EARN THE
WAGES WHICH THE EMPLOYEE WAS RECEIVING AT THE TIME OF INJURY IN THE
SAME OR ANY OTHER EMPLOYMENT."  44 STAT. 1424-1425, 33 U.S.C. SEC.
902(10).    FN4  "SEC.  13.  (A)  THE RIGHT TO COMPENSATION FOR
DISABILITY UNDER THIS ACT SHALL BE BARRED UNLESS A CLAIM THEREFOR IS
FILED WITHIN ONE YEAR AFTER THE INJURY, AND THE RIGHT TO COMPENSATION
FOR DEATH SHALL BE BARRED UNLESS A CLAIM THEREFOR IS FILED WITHIN ONE
YEAR AFTER THE DEATH, EXCEPT THAT IF PAYMENT OF COMPENSATION HAS BEEN
MADE WITHOUT AN AWARD ON ACCOUNT OF SUCH INJURY OR DEATH A CLAIM MAY BE
FILED WITHIN ONE YEAR AFTER THE DATE OF THE LAST PAYMENT  ...  ."  44
STAT. 1432, 33 U.S.C. SEC. 913(A). 

FN5  THE PROVISIONS IN THE BILL WHICH BECAME SEC. 13 OF THE
COMPENSATION ACT (S. 3170, 69TH CONG., 1ST SESS.; 67 CONG. REC. 4119)
WERE AMENDED SO AS TO REDUCE THE TIME LIMIT FOR FILING CLAIMS FROM TWO
YEARS TO ONE YEAR AND SO AS TO SUBSTITUTE THE WORD "INJURY" IN PLACE OF
THE WORD "ACCIDENT" AS THE STARTING POINT OF THE PERIOD.  A LIKE
SUBSTITUTION OF "INJURY" FOR "ACCIDENT" WAS MADE IN SEVERAL OTHER
PLACES AND A PROVISION FOR COMPENSATION FOR DISABILITY OR DEATH
RESULTING FROM OCCUPATIONAL DISEASE WAS ADDED.  THESE CHANGES EMPHASIZE
THE IMPROPRIETY OF NOW READING "INJURY" AS MEANING "ACCIDENT."  IN THE
CASE OF AN OCCUPATIONAL DISEASE, IT IS ESPECIALLY RESTRICTIVE OF AN
EMPLOYEE'S RIGHTS TO LIMIT HIS FILING PERIOD TO ONE YEAR FROM SOME DATE
OF EARLY CONTACT CONSTITUTING THE "ACCIDENT," RATHER THAN FROM THE DATE
OF HIS FIRST COMPENSABLE DIMINUTION OF EARNING POWER DUE TO THE
DISEASE. 
..END :

















PALMER V. ASHE 342 U.S. 134 


NO. 38.  ARGUED NOVEMBER 5, 1951 - DECIDED DECEMBER 11, 1951 - REVERSED
AND REMANDED. 


1.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES A
STATE TO AFFORD A DEFENDANT ASSISTANCE OF COUNSEL IN A NONCAPITAL
CRIMINAL CASE WHEN THERE ARE SPECIAL CIRCUMSTANCES SHOWING THAT WITHOUT
A LAWYER THE DEFENDANT COULD NOT HAVE AN ADEQUATE AND FAIR DEFENSE.  P.
134. 

2.  WITHOUT COUNSEL AND WITHOUT BEING OFFERED COUNSEL OR ADVISED OF
HIS RIGHT TO COUNSEL, PETITIONER PLEADED GUILTY AND WAS SENTENCED TO
TWO CONSECUTIVE TERMS OF FIVE TO FIFTEEN YEARS EACH ON CHARGES OF ARMED
ROBBERY AND ATTEMPTED ARMED ROBBERY.  YEARS LATER, IN A HABEAS CORPUS
PROCEEDING IN A PENNSYLVANIA COURT, HE ALLEGED THAT, BOTH UPON HIS
ARREST AND AT HIS ARRAIGNMENT, HE WAS TOLD THAT HE WAS CHARGED WITH
"BREAKING AND ENTERING," THAT HE WAS THEN A YOUNG, IRRESPONSIBLE BOY
WHO HAD SPENT SEVERAL YEARS IN A MENTAL INSTITUTION, AND THAT HE DID
NOT KNOW THAT HE WAS CHARGED WITH ARMED ROBBERY UNTIL AFTER HE REACHED
PRISON.  THE RECORD WAS NOT SUFFICIENT TO REFUTE THESE ALLEGATIONS; BUT
THE STATE COURT DISMISSED HIS PETITION WITHOUT AFFORDING HIM AN
OPPORTUNITY TO PROVE THEM.  HELD: JUDGMENT REVERSED AND CAUSE REMANDED
FOR FURTHER PROCEEDINGS.  PP. 135-138. 

(A)  IF PETITIONER'S ALLEGATIONS ARE PROVEN, THEY WOULD PRESENT
COMPELLING REASONS WHY HE DESPERATELY NEEDED LEGAL COUNSEL AND
SERVICES.  PP. 136-137. 

(B)  IN A HABEAS CORPUS PROCEEDING CHALLENGING THE CONSTITUTIONALITY
OF A CONVICTION FOR CRIME, THE TRIAL RECORD MAY RELEVANTLY BE
CONSIDERED; BUT THE RECORD IN THIS CASE DOES NOT EVEN INFERENTIALLY
DENY PETITIONER'S CHARGE THAT THE OFFICERS DECEIVED HIM, NOR SHOW AN
UNDERSTANDING PLEA OF GUILTY.  PP. 137-138. 

PALMER V. ASHE, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

A PENNSYLVANIA TRIAL COURT DISMISSED PETITIONER'S HABEAS CORPUS
PROCEEDING.  THE SUPERIOR COURT AFFIRMED.  167 PA. SUPER.  88, 74 A.2D
725.  THE STATE SUPREME COURT REFUSED TO ALLOW AN APPEAL.  THIS COURT
GRANTED CERTIORARI.  341 U.S. 919.  REVERSED AND REMANDED, P. 138. 

OPINION OF THE COURT BY MR. JUSTICE BLACK, ANNOUNCED BY MR. JUSTICE
FRANKFURTER. 

THIS COURT HAS REPEATEDLY HELD THAT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT REQUIRES STATES TO AFFORD DEFENDANTS ASSISTANCE OF
COUNSEL IN NONCAPITAL CRIMINAL CASES WHEN THERE ARE SPECIAL
CIRCUMSTANCES SHOWING THAT WITHOUT A LAWYER A DEFENDANT COULD NOT HAVE
AN ADEQUATE AND FAIR DEFENSE.*  PETITIONER, A PRISONER IN A
PENNSYLVANIA PENITENTIARY, IS SERVING THE SECOND OF TWO FIVE-TO-FIFTEEN
YEAR SENTENCES SIMULTANEOUSLY IMPOSED AFTER PLEAS OF GUILTY TO STATE
OFFENSES.  HE SOUGHT RELEASE IN THESE HABEAS CORPUS PROCEEDINGS FILED
IN A PENNSYLVANIA COURT OF COMMON PLEAS.  HIS PETITION ALLEGED THAT HIS
PLEAS OF GUILTY WERE ENTERED WITHOUT BENEFIT OF COUNSEL AND THAT OTHER
SPECIAL CIRCUMSTANCES EXISTED WHICH DEPRIVED HIM OF OPPORTUNITY AND
CAPACITY FAIRLY TO DEFEND HIMSELF.  ANSWERS OF THE WARDEN AND DISTRICT
ATTORNEY ADMITTED THAT PETITIONER HAD NOT BEEN REPRESENTED BY COUNSEL,
BUT ASSERTED THAT THE TRIAL RECORD SUFFICIENTLY REFUTED PETITIONER'S
ALLEGATIONS.  ON CONSIDERATION OF THE PETITION AND ANSWERS THE COURT
HELD THAT PETITIONER'S ALLEGATIONS, IN LIGHT OF THE RECORD, FAILED TO
SHOW PROBABLE CAUSE FOR HIS DISCHARGE.  THE CASE WAS THEN DISMISSED,
THEREBY DEPRIVING PETITIONER OF ANY OPPORTUNITY TO OFFER EVIDENCE TO
PROVE HIS ALLEGATIONS.  THE SUPERIOR COURT AFFIRMED, 167 PA. SUPER. 
88, 74 A.2D 725, AND THE STATE SUPREME COURT REFUSED TO ALLOW AN
APPEAL.  THE RIGHT TO COUNSEL BEING AN IMPORTANT CONSTITUTIONAL
SAFEGUARD, WE GRANTED PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS
AND HIS PETITION FOR CERTIORARI.  341 U.S. 919. 

*UVEGES V. PENNSYLVANIA, 335 U.S. 437; BUTE V. ILLINOIS, 333 U.S.
640, 677, AND CASES CITED.  IT WAS POINTED OUT IN THE UVEGES OPINION
THAT A MINORITY OF THE COURT BELIEVED THE FOURTEENTH AND SIXTH
AMENDMENTS REQUIRE BOTH STATE AND FEDERAL COURTS TO AFFORD DEFENDANTS
IN ALL CRIMINAL PROSECUTIONS THE ASSISTANCE OF COUNSEL FOR THEIR
DEFENSE. 

WE MUST LOOK TO THE PETITION AND ANSWERS TO DETERMINE WHETHER THE
PARTICULAR CIRCUMSTANCES ALLEGED ARE SUFFICIENT TO ENTITLE PETITIONER
TO A JUDICIAL HEARING.  IN SUMMARY THESE ALLEGATIONS ARE:  WHEN
PETITIONER WAS ARRESTED DECEMBER 20, 1930, THE OFFICERS TOLD HIM THAT
HE WAS CHARGED WITH "BREAKING AND ENTERING THE LEADERS DRY GOODS
STORE."  LATER, BEFORE A MAGISTRATE, HE WAS AGAIN TOLD THAT THE CHARGE
WAS "BREAKING AND ENTERING."  PETITIONER NEVER SAW THE INDICTMENTS
AGAINST HIM NOR WERE THEY READ TO HIM.  HE NEVER KNEW HE HAD BEEN
CHARGED WITH ROBBERY AND NEVER INTENDED TO PLEAD GUILTY TO SUCH A
CRIME.  TAKEN TO THE COURTROOM "THE DISTRICT ATTORNEY INFORMED THE
COURT, THAT 'THE DEFENDANT WISHES TO PLEAD GUILTY' AND IN THE MATTER OF
A MINUTE, MORE OR LESS, THE FOREGOING SENTENCE WAS ENTERED AFTER HE
ANSWERED 'YES' TO THE COURT'S QUERY, 'DO YOU PLEAD GUILTY TO THIS
CHARGE?'"  PETITIONER "WAS NOT REPRESENTED BY COUNSEL, NOR OFFERED
COUNSEL, OR ADVISED OF HIS RIGHT TO HAVE COUNSEL  ...  ."  AFTER
ARRIVAL AT THE PENITENTIARY, PETITIONER FIRST LEARNED, ACCORDING TO HIS
PETITION, THAT HE HAD BEEN SENTENCED FOR ROBBERY AND NOT FOR THE LESSER
CHARGE OF "BREAKING AND ENTERING."  THE PETITION ALSO ALLEGES THAT
PETITIONER WHEN ARRESTED WAS "A YOUNG IRRESPONSIBLE BOY, HAVING SPENT
SEVERAL YEARS IN POLK (BECAUSE HE WAS MENTALLY ABNORMAL), AS WELL AS
SEVERAL YEARS IN MORGANZA."  THIS ALLEGATION OF MENTAL ABNORMALITY IS
SUPPORTED BY THE PENITENTIARY WARDEN'S ANSWER SHOWING THAT PETITIONER
HAD BEEN CONFINED IN POLK (A STATE INSTITUTION) FROM AUGUST, 1918, TO
SEPTEMBER, 1920, BECAUSE HE WAS AN "IMBECILE."  THE WARDEN'S ANSWER
ALSO SHOWS THAT PETITIONER WAS BORN IN 1909; WAS A STATE ORPHANAGE
INMATE FOR A YEAR BEGINNING IN 1916; AND WAS IN REFORMATORIES FOR
LARCENY OR "BREAKING AND ENTERING" FOR EIGHT OF THE TEN YEARS BETWEEN
THE TIME OF HIS RELEASE FROM THE MENTAL INSTITUTION AND THE TIME OF THE
OFFENSE FOR WHICH HE IS NOW IN PRISON. 

ALL OF THE FOREGOING ALLEGATIONS, IF PROVEN, WOULD PRESENT COMPELLING
REASONS WHY PETITIONER DESPERATELY NEEDED LEGAL COUNSEL AND SERVICES. 
INCARCERATION AS A BOY FOR IMBECILITY, FOLLOWED BY REPEATED ACTIVITIES
WHOLLY INCOMPATIBLE WITH NORMAL STANDARDS OF CONDUCT, INDICATES NO
QUALITIES OF MIND OR CHARACTER CALCULATED TO ENABLE PETITIONER TO
PROTECT HIMSELF IN THE GIVE-AND-TAKE OF A COURTROOM TRIAL.  MOREOVER,
IF THERE CAN BE PROOF OF WHAT HE CHARGES, HE IS THE VICTIM OF
INADVERTENT OR INTENTIONAL DECEPTION OF OFFICERS WHO, SO HE ALLEGES,
PERSUADED HIM TO PLEAD GUILTY TO ARMED ROBBERY BY TELLING HIM HE WAS
ONLY CHARGED WITH BREAKING AND ENTERING, AN OFFENSE FOR WHICH THE
MAXIMUM IMPRISONMENT IS ONLY TEN YEARS AS COMPARED TO TWENTY YEARS FOR
ARMED ROBBERY.  18 PURDON'S PA. STAT. ANN. (1930) SEC. 2892, SEC.
3041.  IN THIS ASPECT OF THE CASE THE ALLEGATIONS ARE STRIKINGLY LIKE
THOSE THAT WE HELD ENTITLED THE PETITIONER TO A HEARING IN SMITH V.
O'GRADY, 312 U.S. 329. 

IT IS STRONGLY URGED HERE, HOWEVER, THAT PETITIONER'S ALLEGATIONS ARE
SATISFACTORILY REFUTED BY THE TRIAL RECORD, AND THAT THE COURT SHOULD
NOT NOW LOOK BEHIND THAT RECORD, PARTICULARLY IN VIEW OF THE LONG TIME
THAT HAS ELAPSED SINCE PETITIONER PLEADED GUILTY.  OF COURSE THE TRIAL
RECORD MAY RELEVANTLY BE CONSIDERED IN THE HABEAS CORPUS PROCEEDING. 
IN SOME RESPECTS PETITIONER'S ALLEGATIONS ARE REFUTED BY THE RECORD. 
BUT THAT RECORD DOES NOT EVEN INFERENTIALLY DENY PETITIONER'S CHARGE
THAT THE OFFICERS DECEIVED HIM, NOR DOES THE RECORD SHOW AN
UNDERSTANDING PLEA OF GUILTY FROM THIS PETITIONER, UNLESS BY A RESORT
TO SPECULATION AND SURMISE.  THE RIGHT TO COUNSEL IS TOO VALUABLE IN
OUR SYSTEM TO DILUTE IT BY SUCH UNTRUSTWORTHY REASONING.  CF.  HAWK V.
OLSON, 326 U.S. 271, 278.  THE JUDGMENT DISMISSING THE PETITION IS
REVERSED AND THE CAUSE IS REMANDED TO THE STATE SUPREME COURT FOR
FURTHER ACTION NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

MR. JUSTICE MINTON, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE REED AND
MR. JUSTICE JACKSON JOIN, DISSENTING. 

PETITIONER'S CONTENTION IS THAT BECAUSE OF THE SPECIAL CIRCUMSTANCES
OF HIS CASE THE FAILURE TO PROVIDE HIM COUNSEL WAS A DENIAL OF DUE
PROCESS OF LAW. 

THE FOLLOWING FACTS OF RECORD WERE BEFORE THE PENNSYLVANIA COURTS:
MOST OF PETITIONER'S LIFE HAD BEEN SPENT IN PENNSYLVANIA MENTAL AND
CORRECTIONAL INSTITUTIONS.  AT THE AGE OF EIGHT HE WAS PLACED IN POLK
STATE SCHOOL, A MENTAL INSTITUTION, FROM WHICH HE WAS DISCHARGED IN
LESS THAN TWO YEARS.  ABOUT A YEAR AFTER HIS DISCHARGE FROM POLK, HE
WAS SENT AT THE AGE OF ELEVEN TO THORN HILL SCHOOL ON A CHARGE OF
LARCENY.  HE WAS PAROLED IN LESS THAN THREE YEARS, RETURNED IN LESS
THAN THREE MONTHS FOR DELINQUENCY AND LARCENY, AND FINALLY DISCHARGED
TWO YEARS LATER.  APPROXIMATELY FOURTEEN MONTHS AFTER HIS DISCHARGE
FROM THORN HILL, HE WAS SENT TO THE PENNSYLVANIA TRAINING SCHOOL AT
MORGANZA FOR BREAKING AND ENTERING.  IN TWO AND ONE-HALF YEARS HE WAS
PAROLED AND IN LESS THAN ONE YEAR RETURNED AS A PAROLE VIOLATOR.  HE
WAS DISCHARGED FINALLY ABOUT FOUR MONTHS LATER, DECEMBER 18, 1930, HIS
TWENTY-FIRST BIRTHDAY.  ON THAT DAY, THE ROBBERY AND ATTEMPTED ROBBERY
WERE COMMITTED FOR WHICH PETITIONER WAS INDICTED, PLEADED GUILTY AND
WAS SENTENCED TO THE PENITENTIARY ON FEBRUARY 18, 1931, FOR A TERM OF
FIVE TO FIFTEEN YEARS FOR EACH OFFENSE, THE SENTENCES TO RUN
CONSECUTIVELY.  THESE ARE THE SENTENCES ATTACKED BY PETITIONER.  HE WAS
PAROLED ON THE FIRST SENTENCE, ATTEMPTED ARMED ROBBERY, ON AUGUST 26,
1942, TO ENABLE HIM TO BEGIN SERVING THE ARMED ROBBERY SENTENCE.  HE
WAS PAROLED ON HIS SECOND SENTENCE SEPTEMBER 19, 1947, RETURNED AS A
PAROLE VIOLATOR APRIL 1, 1949, AND HAS SINCE BEEN INCARCERATED IN THE
PENITENTIARY. 

IN THIS RECORD AND PETITIONER'S ALLEGATIONS IN HIS PETITION FOR
HABEAS CORPUS TO THE STATE COURTS MUST BE FOUND THE "SPECIAL
CIRCUMSTANCES" WHICH WOULD WARRANT THIS COURT TO HOLD THAT HE HAD SHOWN
SUFFICIENT PROBABLE CAUSE WHY HIS CONVICTION AND SENTENCING, ON
FEBRUARY 18, 1931, WERE VIOLATIVE OF THE DUE PROCESS CLAUSE. 

PETITIONER DID NOT ALLEGE THAT AT THE TIME OF SENTENCING HE WAS
MENTALLY INCOMPETENT.  HIS ONLY ALLEGATION CONCERNING MENTAL
INCOMPETENCY IS A RECITAL IN PARAGRAPH 2 OF HIS PETITION AS FOLLOWS: 

"YOUR PETITIONER, A YOUNG IRRESPONSIBLE BOY, HAVING SPENT SEVERAL
YEARS IN POLK (BECAUSE HE WAS MENTALLY ABNORMAL)  ...  ." 

YET HIS DISCHARGE FROM POLK WAS MORE THAN TEN YEARS BEFORE HE ENTERED
THE PLEA OF GUILTY NOW BEFORE US. 

PETITIONER DID ALLEGE THAT WHEN HE PLEADED GUILTY TO THE ROBBERY
INDICTMENTS HE THOUGHT HE WAS PLEADING GUILTY TO AN OFFENSE OF BREAKING
AND ENTERING, AS THE POLICE HAD TOLD HIM WHEN HE WAS ARRESTED THAT THAT
WAS THE CHARGE.  HOWEVER, AT THE ARGUMENT BEFORE THIS COURT IT WAS
CONTENDED BY THE STATE, AND NOT DENIED, THAT THE RECORD SHOWED THAT AT
THE TIME HE PLEADED GUILTY TO THE ROBBERY INDICTMENTS, PETITIONER ALSO
PLEADED GUILTY TO BREAKING AND ENTERING LEADERS' DRY GOODS STORE, FOR
WHICH HE RECEIVED A SUSPENDED SENTENCE.  PETITIONER ALSO ALLEGED THAT
HE DISCOVERED HIS MISTAKE FOR THE FIRST TIME WHEN HE WAS BEING EXAMINED
BY THE PENITENTIARY'S PSYCHOLOGY DEPARTMENT UPON HIS ADMISSION.  WITH
THAT KNOWLEDGE, HE REMAINED SILENT FOR EIGHTEEN YEARS, A YEAR AND A
HALF OF WHICH TIME HE WAS ON PAROLE. 

A CONTINUOUS LIFE OF CRIME, EXTENDING THROUGHOUT HIS ENTIRE YOUTH,
WAS THE EXPERIENCE OF THIS UNHAPPY BOY.  ONE WOULD THINK THAT SUCH A
PROPENSITY FOR CRIME WOULD OR SHOULD ALERT A COURT TO HIS MENTAL
CONDITION.  HE DID NOT ALLEGE THAT HE WAS MENTALLY INCOMPETENT AT THE
TIME HE WAS SERVING ALMOST NINE YEARS IN THORN HILL AND MORGANZA, FROM
1921 UNTIL 1930.  IF HE HAD SHOWN ANY SUCH INFIRMITY, SURELY THE
OFFICIALS IN CHARGE OF THESE TWO INSTITUTIONS WOULD HAVE HAD THE FACT
CALLED TO THEIR ATTENTION AND WOULD HAVE HAD HIM SENT TO A MENTAL
INSTITUTION.  THE OFFICIALS OF PENNSYLVANIA CORRECTIONAL INSTITUTIONS
HAD SUCH DUTY IMPOSED BY STATUTE IN 1927, SO THAT THE MORGANZA
OFFICIALS, WHERE HE WAS CONFINED FROM 1927 TO 1930, CLEARLY HAD SUCH
DUTY AS TO PETITIONER.   PA. LAWS 1927, NO. 281, PURDON'S PA.  STAT.
ANN., 1931, TIT. 50, SEC. 51.  THIS DUTY WAS IMPOSED ALSO UPON THE
COURT THAT SENTENCED HIM.  I CANNOT BELIEVE THAT THE TRIAL COURT WHICH
ACCEPTED HIS PLEA IN OPEN COURT WOULD HAVE DONE SO IF IT HAD KNOWN OR
HAD ANY INTIMATION THAT HE WAS MENTALLY DEFECTIVE.  I THINK THE COURTS
OF PENNSYLVANIA HAD A RIGHT TO ASSUME UNDER ALL THE CIRCUMSTANCES OF
RECORD, WHICH UNDER PENNSYLVANIA PRACTICE WAS BEFORE THEM AT THE TIME
OF SENTENCING AND AT THE DISPOSITION OF THE RULE TO SHOW CAUSE IN THE
HABEAS CORPUS PROCEEDINGS, THAT PETITIONER WAS A MENTALLY COMPETENT MAN
OF TWENTY-ONE YEARS AT THE TIME HE WAS SENTENCED.*  IT WAS NOT ALLEGED
OTHERWISE. 

*THE MAJORITY STATES THAT PETITIONER'S ALLEGATION OF MENTAL
ABNORMALITY IS "SUPPORTED BY THE PENITENTIARY WARDEN'S ANSWER SHOWING
THAT PETITIONER HAD BEEN CONFINED IN POLK (A STATE INSTITUTION) FROM
AUGUST, 1918, TO SEPTEMBER, 1920, BECAUSE HE WAS AN 'IMBECILE.'" 

IF HE WERE AN IMBECILE, IT WOULD SEEM PROBABLE THAT IN HIS MANY
ENCOUNTERS WITH THE COURTS THEY WOULD HAVE OBSERVED SUCH LOW GRADE OF
MENTALITY.  AN IMBECILE HAS NEXT TO THE LOWEST GRADE OF INTELLIGENCE
AMONG MENTAL DEFECTIVES, "WITH AN INTELLIGENCE QUOTIENT OF FROM 25 TO
49, OR A MENTAL AGE FOR AN ADULT EQUIVALENT TO THAT OF A CHILD OF FROM
3 TO 7 YEARS."  FAIRCHILD, DICTIONARY OF SOCIOLOGY (1944), 149. 
PETITIONER'S BRIEF IN THE PENNSYLVANIA SUPERIOR COURT STATED THAT WHEN
HE WAS EXAMINED AT THE PENITENTIARY UPON HIS ADMISSION HE HAD AN IQ OF
74. 

WHEN PETITIONER ENTERED HIS PLEA OF GUILTY TO THE ROBBERY INDICTMENTS
ON FEBRUARY 18, 1931, DID HE KNOW HE WAS DOING SO? HE ALLEGED HE DID
NOT; THAT HE THOUGHT HE WAS PLEADING GUILTY TO BREAKING AND ENTERING
LEADERS' DRY GOODS STORE, AS THE POLICE HAD TOLD HIM THAT WAS WHY HE
WAS BEING ARRESTED.  ASIDE FROM THE FACT THAT HE PLEADED GUILTY ALSO TO
THE BREAKING AND ENTERING OF LEADERS' AND RECEIVED A SUSPENDED SENTENCE
THEREON AND THAT HE FIRST MADE KNOWN HIS ERROR MORE THAN EIGHTEEN YEARS
AFTER HE DISCOVERED IT, THE COURTS OF PENNSYLVANIA IN SEEKING TO
DETERMINE FROM THE PETITION AND THE ANSWERS OF THE WARDEN AND DISTRICT
ATTORNEY WHETHER THERE WAS PROBABLE CAUSE FOR DISCHARGING HIM, TOOK
INTO CONSIDERATION THESE FURTHER FACTS OF RECORD: 

THE RECORD REVEALED THAT AFTER PETITIONER WAS ARRESTED, HE WAS
PRESENTED BEFORE A MAGISTRATE ON AN INFORMATION FILED BY A POLICE
OFFICER WHICH CHARGED PETITIONER AND TWO OTHERS, SEPARATELY, WITH ARMED
ROBBERY OF DAVID BRINN, A GROCERY STORE OWNER, AND ATTEMPTED ARMED
ROBBERY OF PETER ROSELLA, ALSO A GROCERY STORE OWNER.  THE VICTIMS
APPEARED AT THE HEARING AND TESTIFIED, TOGETHER WITH TWO OTHER
WITNESSES.  THE THREE DEFENDANTS WERE CHARGED IN TWO INDICTMENTS WITH
THE ARMED ROBBERY OF BRINN AND ATTEMPTED ARMED ROBBERY OF ROSELLA, WHO
WERE IN COURT WITH SEVERAL OTHER WITNESSES, PREPARED TO TESTIFY.  THEIR
NAMES WERE ENDORSED UPON THE INDICTMENTS AS WITNESSES AGAINST THE
DEFENDANTS.  PETITIONER'S PLEA OF GUILTY IN OPEN COURT TO THESE
INDICTMENTS WAS ALSO SO ENDORSED.    I THINK IT AN ALLOWABLE JUDGMENT
FOR THE PENNSYLVANIA COURTS TO CONCLUDE THAT PETITIONER'S ALLEGATIONS,
MADE EIGHTEEN YEARS AFTER TRIAL, WERE PROBABLE IN THE LIGHT OF THE
MATTERS OF RECORD, THAT PROBABLE CAUSE DID NOT EXIST FOR HIS DISCHARGE,
AND THAT THE NECESSITY OF A HEARING WAS NOT INDICATED.  THE COURTS HAD
A RIGHT TO ASSUME, IN THE ABSENCE OF ALLEGATIONS OR RECORD TO THE
CONTRARY, THAT PETITIONER WAS A MENTALLY COMPETENT YOUNG MAN OF TWENTY
ONE YEARS, AND THAT HIS CONTENTION, MADE EIGHTEEN YEARS LATE, THAT HE
HAD PLEADED GUILTY TO CRIMES OTHER THAN HE THOUGHT HE WAS PLEADING TO
WAS A BIT HARD TO BELIEVE, ESPECIALLY IN THE ABSENCE OF AN ALLEGATION
THAT HE DID NOT COMMIT THE OFFENSES CHARGED IN THE INDICTMENTS TO WHICH
HE PLEADED GUILTY.  FOR AUGHT THAT APPEARS IN HIS PETITION, HE DID
COMMIT THE OFFENSES - HE ALLEGED ONLY THAT HE DID NOT PLEAD GUILTY TO
THEM.  TO ME IT APPEARS PLAIN THAT THE RECORD ON THE WHOLE IS AGAINST
PETITIONER.  UNDER THE PRACTICE OF PENNSYLVANIA, PETITIONER IS ENTITLED
TO THE WRIT OF HABEAS CORPUS ONLY WHEN THE COURT IS SATISFIED THERE IS
PROBABLE CAUSE FOR IT TO ISSUE.  COMMONWEALTH EX REL. MCGLINN V. SMITH,
344 PA. 41, 47-48, 24 A.2D 1, 4-5.  ON THIS RECORD IT WAS PERMISSIBLE
FOR THE COURTS OF PENNSYLVANIA TO CONCLUDE THAT THERE WAS NO PROBABLE
CAUSE SHOWN WHY THE WRIT SHOULD ISSUE, AND THAT A HEARING WAS NOT
NECESSARY. 
..END :












LORAIN JOURNAL CO. V. UNITED STATES 342 U.S. 143 


NO. 26.  ARGUED OCTOBER 17, 1951 - DECIDED DECEMBER 11, 1951 - 92 F.
SUPP. 794, AFFIRMED. 


FOR 15 YEARS A NEWSPAPER PUBLISHER ENJOYED A SUBSTANTIAL MONOPOLY OF
THE MASS DISSEMINATION OF LOCAL AND NATIONAL NEWS AND ADVERTISING IN
ITS COMMUNITY, AND 99% COVERAGE OF THE COMMUNITY'S FAMILIES.  AFTER THE
ESTABLISHMENT OF A COMPETING RADIO STATION, THE PUBLISHER REFUSED TO
ACCEPT LOCAL ADVERTISING FROM THOSE WHO ADVERTISED OVER THE RADIO
STATION.  THE PURPOSE OF THE PUBLISHER WAS TO DESTROY THE BROADCASTING
COMPANY.  HELD:  THE PUBLISHER WAS ENGAGED IN AN ATTEMPT TO MONOPOLIZE
INTERSTATE COMMERCE, IN VIOLATION OF SEC. 2 OF THE SHERMAN ANTITRUST
ACT, AND WAS PROPERLY ENJOINED UNDER SEC. 4 FROM CONTINUING THE
ATTEMPT.  PP. 144-157. 

1.  THE CONDUCT OF THE PUBLISHER WAS AN ATTEMPT TO MONOPOLIZE
INTERSTATE COMMERCE.  PP. 149-152. 

(A)  THE DISTRIBUTION WITHIN THE COMMUNITY OF THE NEWS AND
ADVERTISING TRANSMITTED THERE IN INTERSTATE COMMERCE FOR THE SOLE
PURPOSE OF IMMEDIATE AND PROFITABLE REPRODUCTION AND DISTRIBUTION TO
THE READING PUBLIC IS AN INSEPARABLE PART OF THE FLOW OF THE INTERSTATE
COMMERCE INVOLVED.  P. 152. 

(B)  WITHOUT THE PROTECTION OF COMPETITION AT THE OUTLETS OF THE FLOW
OF INTERSTATE COMMERCE, THE PROTECTION OF ITS EARLIER STAGES IS OF
LITTLE WORTH.  P. 152. 

2.  THE PUBLISHER'S ATTEMPT TO REGAIN ITS MONOPOLY OF INTERSTATE
COMMERCE BY FORCING ADVERTISERS TO BOYCOTT A COMPETING RADIO STATION
VIOLATED SEC. 2 OF THE SHERMAN ACT.  PP. 152-155. 

(A)  IN ORDER TO ESTABLISH THIS VIOLATION OF SEC. 2, IT WAS NOT
NECESSARY TO SHOW THAT THE PUBLISHER'S ATTEMPT TO MONOPOLIZE WAS
SUCCESSFUL.  PP. 153-154. 

(B)  A LONE NEWSPAPER, ALREADY ENJOYING A SUBSTANTIAL MONOPOLY IN ITS
AREA, VIOLATES THE "ATTEMPT TO MONOPOLIZE" CLAUSE OF SEC. 2 WHEN IT
USES ITS MONOPOLY TO DESTROY THREATENED COMPETITION.  P. 154. 

(C)  THE RIGHT CLAIMED BY THE PUBLISHER AS A PRIVATE BUSINESS CONCERN
TO SELECT ITS CUSTOMERS AND TO REFUSE TO ACCEPT ADVERTISEMENTS FROM
WHOMEVER IT PLEASES IS NEITHER ABSOLUTE NOR EXEMPT FROM REGULATION. 
ITS EXERCISE AS A PURPOSEFUL MEANS OF MONOPOLIZING INTERSTATE COMMERCE
IS PROHIBITED BY THE SHERMAN ACT.  P. 155. 

3.  THE INJUNCTION AGAINST THE NEWSPAPER PUBLISHER'S CONTINUING TO
ATTEMPT TO MONOPOLIZE INTERSTATE COMMERCE DOES NOT VIOLATE THE FIRST
AMENDMENT'S GUARANTY OF FREEDOM OF THE PRESS.  PP. 155-156. 

4.  THERE IS NO OBVIOUS ERROR IN THE FORM OR SUBSTANCE OF THE DECREE
OF THE DISTRICT COURT; AND, IN THE CIRCUMSTANCES OF THE CASE, THIS
COURT RELIES UPON THAT COURT'S RETENTION OF JURISDICTION OVER THE CAUSE
FOR WHATEVER MODIFICATION THE DECREE MAY NEED IN THE LIGHT OF THE
ENTIRE PROCEEDINGS AND OF SUBSEQUENT EVENTS.  PP. 156-157. 

LORAIN JOURNAL CO. ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO. 

IN A CIVIL ACTION BROUGHT BY THE UNITED STATES UNDER THE SHERMAN ACT,
THE DISTRICT COURT ENJOINED APPELLANTS FROM VIOLATION OF THE ACT.  92
F. SUPP. 794.  A DIRECT APPEAL TO THIS COURT WAS TAKEN UNDER THE
EXPEDITING ACT.  AFFIRMED, P. 157. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION HERE IS WHETHER A NEWSPAPER PUBLISHER'S
CONDUCT CONSTITUTED AN ATTEMPT TO MONOPOLIZE INTERSTATE COMMERCE,
JUSTIFYING THE INJUNCTION ISSUED AGAINST IT UNDER SECS. 2 AND 4 OF THE
SHERMAN ANTITRUST ACT.  (FN1)  FOR THE REASONS HEREAFTER STATED, WE
HOLD THAT THE INJUNCTION WAS JUSTIFIED. 

THIS IS A CIVIL ACTION, INSTITUTED BY THE UNITED STATES IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, AGAINST THE LORAIN
JOURNAL COMPANY, AN OHIO CORPORATION, PUBLISHING, DAILY EXCEPT SUNDAY,
IN THE CITY OF LORAIN, OHIO, A NEWSPAPER HERE CALLED THE JOURNAL.  THE
COMPLAINT ALLEGED THAT THE CORPORATION, TOGETHER WITH FOUR OF ITS
OFFICIALS, WAS ENGAGING IN A COMBINATION AND CONSPIRACY IN RESTRAINT OF
INTERSTATE COMMERCE IN VIOLATION OF SEC. 1 OF THE SHERMAN ANTITRUST
ACT, AND IN A COMBINATION AND CONSPIRACY TO MONOPOLIZE SUCH COMMERCE IN
VIOLATION OF SEC. 2 OF THE ACT, AS WELL AS ATTEMPTING TO MONOPOLIZE
SUCH COMMERCE IN VIOLATION OF SEC. 2.  (FN2)  THE DISTRICT COURT
DECLINED TO ISSUE A TEMPORARY INJUNCTION BUT, AFTER TRIAL, FOUND THAT
THE PARTIES WERE ENGAGING IN AN ATTEMPT TO MONOPOLIZE AS CHARGED. 
CONFINING ITSELF TO THAT ISSUE, THE COURT ENJOINED THEM FROM CONTINUING
THE ATTEMPT.  92 F. SUPP. 794.  THEY APPEALED TO THIS COURT UNDER THE
EXPEDITING ACT OF 1903, 32 STAT. 823, AS AMENDED, 62 STAT. 989, 15
U.S.C. (SUPP. IV) SEC. 29, AND THE ISSUES BEFORE US ARE THOSE ARISING
FROM THAT FINDING AND THE TERMS OF THE INJUNCTION. 

THE APPELLANT CORPORATION, HERE CALLED THE PUBLISHER, HAS PUBLISHED
THE JOURNAL IN THE CITY OF LORAIN SINCE BEFORE 1932.  IN THAT YEAR IT,
WITH OTHERS, PURCHASED THE TIMES-HERALD WHICH WAS THE ONLY COMPETING
DAILY PAPER PUBLISHED IN THAT CITY.  LATER, WITHOUT SUCCESS, IT SOUGHT
A LICENSE TO ESTABLISH AND OPERATE A RADIO BROADCASTING STATION IN
LORAIN.  92 F. SUPP. 794, 796, AND SEE LORAIN JOURNAL CO. V. FEDERAL
COMMUNICATIONS COMM'N, 86 U.S. APP. D.C. 102, 180 F.2D 28. 

THE COURT BELOW DESCRIBES THE POSITION OF THE JOURNAL SINCE 1933, AS
"A COMMANDING AND AN OVERPOWERING ONE.  IT HAS A DAILY CIRCULATION IN
LORAIN OF OVER 13,000 COPIES AND IT REACHES NINETY-NINE PER CENT OF THE
FAMILIES IN THE CITY."  92 F. SUPP. AT 796.  LORAIN IS AN INDUSTRIAL
CITY ON LAKE ERIE WITH A POPULATION OF ABOUT 52,000 OCCUPYING 11,325
DWELLING UNITS.  THE SUNDAY NEWS, APPEARING ONLY ON SUNDAYS, IS THE
ONLY OTHER NEWSPAPER PUBLISHED THERE.  (FN3) 

WHILE BUT 165 OUT OF THE JOURNAL'S DAILY CIRCULATION OF OVER 20,000
COPIES ARE SENT OUT OF OHIO, IT PUBLISHES NOT ONLY LORAIN NEWS BUT
SUBSTANTIAL QUANTITIES OF STATE, NATIONAL AND INTERNATIONAL NEWS.  IT
PAYS SUBSTANTIAL SUMS FOR SUCH NEWS AND FOR FEATURE MATERIAL SHIPPED TO
IT FROM VARIOUS PARTS OF THE UNITED STATES AND THE REST OF THE WORLD. 
IT CARRIES A SUBSTANTIAL QUANTITY OF NATIONAL ADVERTISING SENT TO IT
FROM THROUGHOUT THE UNITED STATES.  SHIPMENTS AND PAYMENTS INCIDENTAL
TO THE ABOVE MATTERS, AS WELL AS THE PUBLISHER'S PURCHASES OF PAPER AND
INK, INVOLVE MANY TRANSACTIONS IN INTERSTATE OR FOREIGN COMMERCE. 

FROM 1933 TO 1948 THE PUBLISHER ENJOYED A SUBSTANTIAL MONOPOLY IN
LORAIN OF THE MASS DISSEMINATION OF NEWS AND ADVERTISING, BOTH OF A
LOCAL AND NATIONAL CHARACTER.  HOWEVER, IN 1948 THE ELYRIA-LORAIN
BROADCASTING COMPANY, A CORPORATION INDEPENDENT OF THE PUBLISHER, WAS
LICENSED BY THE FEDERAL COMMUNICATIONS COMMISSION TO ESTABLISH AND
OPERATE IN ELYRIA, OHIO, EIGHT MILES SOUTH OF LORAIN, A RADIO STATION
WHOSE CALL LETTERS, WEOL, STAND FOR ELYRIA, OBERLIN AND LORAIN.  (FN4)
SINCE THEN IT HAS OPERATED ITS PRINCIPAL STUDIO IN ELYRIA AND A BRANCH
STUDIO IN LORAIN.  LORAIN HAS ABOUT TWICE THE POPULATION OF ELYRIA AND
IS BY FAR THE LARGEST COMMUNITY IN THE STATION'S IMMEDIATE AREA. 
OBERLIN IS MUCH SMALLER THAN ELYRIA AND EIGHT MILES SOUTH OF IT. 

WHILE THE STATION IS NOT AFFILIATED WITH A NATIONAL NETWORK IT
DISSEMINATES BOTH INTRASTATE AND INTERSTATE NEWS AND ADVERTISING. 
ABOUT 65% OF ITS PROGRAM CONSISTS OF MUSIC BROADCAST FROM ELECTRICAL
TRANSCRIPTIONS.  THESE ARE SHIPPED AND LEASED TO THE STATION BY OUT-OF
STATE SUPPLIERS.  MOST OF THEM ARE COPYRIGHTED AND THE STATION PAYS
ROYALTIES TO THE OUT-OF-STATE HOLDERS OF THE COPYRIGHTS.  FROM 10 TO
12% OF THE STATION'S PROGRAM CONSISTS OF NEWS, WORLD-WIDE IN COVERAGE,
GATHERED BY UNITED PRESS ASSOCIATIONS.  THE NEWS IS RECEIVED FROM
OUTSIDE OF OHIO AND RELAYED TO ELYRIA THROUGH COLUMBUS OR CLEVELAND. 
FROM APRIL, 1949, TO MARCH, 1950, THE STATION BROADCAST OVER 100
SPONSORED SPORTS EVENTS ORIGINATING IN VARIOUS STATES. 

SUBSTANTIALLY ALL OF THE STATION'S INCOME IS DERIVED FROM ITS
BROADCASTS OF ADVERTISEMENTS OF GOODS OR SERVICES.  ABOUT 16% OF ITS
INCOME COMES FROM NATIONAL ADVERTISING UNDER CONTRACTS WITH ADVERTISERS
OUTSIDE OF OHIO.  THIS PRODUCES A CONTINUOUS FLOW OF COPY, PAYMENTS AND
MATERIALS MOVING ACROSS STATE LINES.  (FN5) 

THE COURT BELOW FOUND THAT APPELLANTS KNEW THAT A SUBSTANTIAL NUMBER
OF JOURNAL ADVERTISERS WISHED TO USE THE FACILITIES OF THE RADIO
STATION AS WELL.  FOR SOME OF THEM IT FOUND THAT ADVERTISING IN THE
JOURNAL WAS ESSENTIAL FOR THE PROMOTION OF THEIR SALES IN LORAIN
COUNTY.  IT FOUND THAT AT ALL TIMES SINCE WEOL COMMENCED BROADCASTING,
APPELLANTS HAD EXECUTED A PLAN CONCEIVED TO ELIMINATE THE THREAT OF
COMPETITION FOR THE STATION.  UNDER THIS PLAN THE PUBLISHER REFUSED TO
ACCEPT LOCAL ADVERTISEMENTS IN THE JOURNAL FROM AN LORAIN COUNTY
ADVERTISER WHO ADVERTISED OR WHO APPELLANTS BELIEVED TO BE ABOUT TO
ADVERTISE OVER WEOL.  THE COURT FOUND EXPRESSLY THAT THE PURPOSE AND
INTENT OF THIS PROCEDURE WAS TO DESTROY THE BROADCASTING COMPANY. 

THE COURT CHARACTERIZED ALL THIS AS "BOLD, RELENTLESS, AND PREDATORY
COMMERCIAL BEHAVIOR."  92 F. SUPP. AT 796.  TO CARRY OUT APPELLANT'S
PLAN, THE PUBLISHER MONITORED WEOL PROGRAMS TO DETERMINE THE IDENTITY
OF THE STATION'S LOCAL LORAIN ADVERTISERS.  THOSE USING THE STATION'S
FACILITIES HAD THEIR CONTRACTS WITH THE PUBLISHER TERMINATED AND WERE
ABLE TO RENEW THEM ONLY AFTER CEASING TO ADVERTISE THROUGH WEOL.  THE
PROGRAM WAS EFFECTIVE.  NUMEROUS LORAIN COUNTY MERCHANTS TESTIFIED
THAT, AS A RESULT OF THE PUBLISHER'S POLICY, THEY EITHER CEASED OR
ABANDONED THEIR PLANS TO ADVERTISE OVER WEOL. 

"HAVING THE PLAN AND DESIRE TO INJURE THE RADIO STATION, NO MORE
EFFECTIVE AND MORE DIRECT DEVICE TO IMPEDE THE OPERATIONS AND TO
RESTRAIN THE COMMERCE OF WEOL COULD BE FOUND BY THE JOURNAL THAN TO CUT
OFF ITS BLOODSTREAM OF EXISTENCE - THE ADVERTISING REVENUES WHICH
CONTROL ITS LIFE OR DEMISE. 

      *        *         *         *          * 

"  ...  THE VERY EXISTENCE OF WEOL IS IMPERILED BY THIS ATTACK UPON
ONE OF ITS PRINCIPAL SOURCES OF BUSINESS AND INCOME."  ID., AT 798,
799. 

THE PRINCIPAL PROVISIONS OF THE INJUNCTION ISSUED BY THE DISTRICT
COURT ARE NOT SET FORTH IN THE PUBLISHED REPORT OF THE CASE BELOW BUT
ARE PRINTED IN AN APPENDIX, INFRA, PP. 157-159.  SECTIONS IV AND VB OF
THE DECREE, RELATING TO NOTICES, ARE STAYED PENDING FINAL DISPOSITION
OF THIS APPEAL. 

1.  THE CONDUCT COMPLAINED OF WAS AN ATTEMPT TO MONOPOLIZE INTERSTATE
COMMERCE.  IT CONSISTED OF THE PUBLISHER'S PRACTICE OF REFUSING TO
ACCEPT LOCAL LORAIN ADVERTISING FROM PARTIES USING WEOL FOR LOCAL
ADVERTISING.  BECAUSE OF THE JOURNAL'S COMPLETE DAILY NEWSPAPER
MONOPOLY OF LOCAL ADVERTISING IN LORAIN AND ITS PRACTICALLY
INDISPENSABLE COVERAGE OF 99% OF THE LORAIN FAMILIES, THIS PRACTICE
FORCED NUMEROUS ADVERTISERS TO REFRAIN FROM USING WEOL FOR LOCAL
ADVERTISING.  THE RESULT NOT ONLY REDUCED THE NUMBER OF CUSTOMERS
AVAILABLE TO WEOL IN THE FIELD OF LOCAL LORAIN ADVERTISING AND
STRENGTHENED THE JOURNAL'S MONOPOLY IN THAT FIELD, BUT MORE
SIGNIFICANTLY TENDED TO DESTROY AND ELIMINATE WEOL ALTOGETHER. 
ATTAINMENT OF THAT SOUGHT-FOR ELIMINATION WOULD AUTOMATICALLY RESTORE
TO THE PUBLISHER OF THE JOURNAL ITS SUBSTANTIAL MONOPOLY IN LORAIN OF
THE MASS DISSEMINATION OF ALL NEWS AND ADVERTISING, INTERSTATE AND
NATIONAL, AS WELL AS LOCAL.  IT WOULD DEPRIVE NOT MERELY LORAIN BUT
ELYRIA AND ALL SURROUNDING COMMUNITIES OF THEIR ONLY NEARBY RADIO
STATION. 

THERE IS A SUGGESTION THAT THE OUT-OF-STATE DISTRIBUTION OF SOME
COPIES OF THE JOURNAL, COUPLED WITH THE CONSIDERABLE INTERSTATE
COMMERCE ENGAGED IN BY ITS PUBLISHER IN THE PURCHASE OF ITS OPERATING
SUPPLIES, PROVIDED, IN ANY EVENT, A SUFFICIENT BASIS FOR CLASSIFYING
THE PUBLISHER'S ENTIRE OPERATION AS ONE IN INTERSTATE COMMERCE.  IT IS
POINTED OUT ALSO THAT THE JOURNAL'S DAILY PUBLICATION OF LOCAL NEWS AND
ADVERTISING WAS SO INSEPARABLY INTEGRATED WITH ITS PUBLICATION OF
INTERSTATE NEWS AND NATIONAL ADVERTISING THAT ANY COERCION USED BY IT
IN SECURING LOCAL ADVERTISING INEVITABLY OPERATED TO STRENGTHEN ITS
ENTIRE OPERATION, INCLUDING ITS MONOPOLY OF INTERSTATE NEWS AND
NATIONAL ADVERTISING. 

IT IS NOT NECESSARY, HOWEVER, TO RELY ON THE ABOVE SUGGESTIONS.  THE
FINDINGS GO FURTHER.  THEY EXPRESSLY AND UNEQUIVOCALLY STATE THAT THE
PUBLISHER'S CONDUCT WAS AIMED AT A LARGER TARGET - THE COMPLETE
DESTRUCTION AND ELIMINATION OF WEOL.  THE COURT FOUND THAT THE
PUBLISHER, BEFORE 1948, ENJOYED A SUBSTANTIAL MONOPOLY IN LORAIN OF THE
MASS DISSEMINATION NOT ONLY OF LOCAL NEWS AND ADVERTISING, BUT OF NEWS
OF OUT-OF-STATE EVENTS TRANSMITTED TO LORAIN FOR IMMEDIATE
DISSEMINATION, AND OF ADVERTISING OF OUT-OF-STATE PRODUCTS FOR SALE IN
LORAIN.  WEOL OFFERED COMPETITION BY RADIO IN ALL THESE FIELDS SO THAT
THE PUBLISHER'S ATTEMPT TO DESTROY WEOL WAS IN FACT AN ATTEMPT TO END
THE INVASION BY RADIO OF THE LORAIN NEWSPAPER'S MONOPOLY OF INTERSTATE
AS WELL AS LOCAL COMMERCE.  (FN6) 

THERE CAN BE LITTLE DOUBT TODAY THAT THE IMMEDIATE DISSEMINATION OF
NEWS GATHERED FROM THOUGHOUT THE NATION OR THE WORLD BY AGENCIES
SPECIALLY ORGANIZED FOR THAT PURPOSE IS A PART OF INTERSTATE COMMERCE. 
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 14; ASSOCIATED PRESS V.
LABOR BOARD, 301 U.S. 103.  THE SAME IS TRUE OF NATIONAL ADVERTISING
ORIGINATING THROUGHOUT THE NATION AND OFFERING PRODUCTS FOR SALE ON A
NATIONAL SCALE.  THE LOCAL DISSEMINATION OF SUCH NEWS AND ADVERTISING
REQUIRES CONTINUOUS INTERSTATE TRANSMISSION OF MATERIALS AND PAYMENTS,
TO SAY NOTHING OF THE INTERSTATE COMMERCE INVOLVED IN THE SALE AND
DELIVERY OF PRODUCTS SOLD.  THE DECISION IN BLUMENSTOCK BROS. V. CURTIS
PUB. CO., 252 U.S. 436, RELATED TO THE MAKING OF CONTRACTS FOR
ADVERTISING RATHER THAN TO THE PREPARATION AND DISSEMINATION OF
ADVERTISING.  MOREOVER, THE VIEW THERE STATED, THAT THE MAKING OF
CONTRACTS BY PARTIES OUTSIDE OF A STATE FOR THE INSERTION OF
ADVERTISING MATERIAL IN PERIODICALS OF NATIONWIDE CIRCULATION DID NOT
AMOUNT TO INTERSTATE COMMERCE, RESTED EXPRESSLY ON A LINE OF CASES
HOLDING "THAT POLICIES OF INSURANCE ARE NOT ARTICLES OF COMMERCE, AND
THAT THE MAKING OF SUCH CONTRACTS IS A MERE INCIDENT OF COMMERCIAL
INTERCOURSE."  ID., AT 443.  SEE PAUL V. VIRGINIA, 8 WALL.  168, AND
NEW YORK LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495.  THAT LINE
OF CASES NO LONGER STANDS IN THE WAY.  UNITED STATES V. SOUTH-EASTERN
UNDERWRITERS ASSN., 322 U.S. 533.  SEE ALSO, NORTH AMERICAN CO. V.
SECURITIES & EXCHANGE COMM'N, 327 U.S. 686; INDIANA FARMER'S GUIDE PUB.
CO. V. PRAIRIE FARMER PUB. CO., 293 U.S. 268. 

THE DISTRIBUTION WITHIN LORAIN OF THE NEWS AND ADVERTISEMENTS
TRANSMITTED TO LORAIN IN INTERSTATE COMMERCE FOR THE SOLE PURPOSE OF
IMMEDIATE AND PROFITABLE REPRODUCTION AND DISTRIBUTION TO THE READING
PUBLIC IS AN INSEPARABLE PART OF THE FLOW OF THE INTERSTATE COMMERCE
INVOLVED.  SEE BINDERUP V. PATHE EXCHANGE, 263 U.S. 291, 309; STAFFORD
V. WALLACE, 258 U.S. 495, 516; ILLINOIS CENTRAL R. CO. V. LOUISIANA R.
COMM'N, 236 U.S. 157, 163; SWIFT & CO. V. UNITED STATES, 196 U.S. 375,
398.  UNLESS PROTECTED BY LAW, THE CONSUMING PUBLIC IS AT THE MERCY OF
RESTRAINTS AND MONOPOLIZATIONS OF INTERSTATE COMMERCE AT WHATEVER
POINTS THEY OCCUR.  WITHOUT THE PROTECTION OF COMPETITION AT THE
OUTLETS OF THE FLOW OF INTERSTATE COMMERCE, THE PROTECTION OF ITS
EARLIER STAGES IS OF LITTLE WORTH. 

2.  THE PUBLISHER'S ATTEMPT TO REGAIN ITS MONOPOLY OF INTERSTATE
COMMERCE BY FORCING ADVERTISERS TO BOYCOTT A COMPETING RADIO STATION
VIOLATED SEC. 2.  THE FINDINGS AND OPINION OF THE TRIAL COURT DESCRIBE
THE CONDUCT OF THE PUBLISHER UPON WHICH THE GOVERNMENT RELIES.  THE
SURROUNDING CIRCUMSTANCES ARE IMPORTANT.  THE MOST ILLUMINATING OF
THESE IS THE SUBSTANTIAL MONOPOLY WHICH WAS ENJOYED IN LORAIN BY THE
PUBLISHER FROM 1933 TO 1948, TOGETHER WITH A 99% COVERAGE OF LORAIN
FAMILIES.  THOSE FACTORS MADE THE JOURNAL AN INDISPENSABLE MEDIUM OF
ADVERTISING FOR MANY LORAIN CONCERNS.  ACCORDINGLY, ITS PUBLISHER'S
REFUSALS TO PRINT LORAIN ADVERTISING FOR THOSE USING WEOL FOR LIKE
ADVERTISING OFTEN AMOUNTED TO AN EFFECTIVE PROHIBITION OF THE USE OF
WEOL FOR THAT PURPOSE.   NUMEROUS LORAIN ADVERTISERS WISHED TO
SUPPLEMENT THEIR LOCAL NEWSPAPER ADVERTISING WITH LOCAL RADIO
ADVERTISING BUT COULD NOT AFFORD TO DISCONTINUE THEIR NEWSPAPER
ADVERTISING IN ORDER TO USE THE RADIO.    WEOL'S GREATEST POTENTIAL
SOURCE OF INCOME WAS LOCAL LORAIN ADVERTISING.  LOSS OF THAT WAS A
MAJOR THREAT TO ITS EXISTENCE.  THE COURT BELOW FOUND UNEQUIVOCALLY
THAT APPELLANTS' CONDUCT AMOUNTED TO AN ATTEMPT BY THE PUBLISHER TO
DESTROY WEOL AND, AT THE SAME TIME, TO REGAIN THE PUBLISHER'S PRE-1948
SUBSTANTIAL MONOPOLY OVER THE MASS DISSEMINATION OF ALL NEWS AND
ADVERTISING. 

TO ESTABLISH THIS VIOLATION OF SEC. 2 AS CHARGED, IT WAS NOT
NECESSARY TO SHOW THAT SUCCESS REWARDED APPELLANTS' ATTEMPT TO
MONOPOLIZE.  THE INJUNCTIVE RELIEF UNDER SEC. 4 SOUGHT TO FORESTALL
THAT SUCCESS.  WHILE APPELLANTS' ATTEMPT TO MONOPOLIZE DID SUCCEED
INSOFAR AS IT DEPRIVED WEOL OF INCOME, WEOL HAS NOT YET BEEN
ELIMINATED.  THE INJUNCTION MAY SAVE IT.  "WHEN THAT INTENT (TO
MONOPOLIZE) AND THE CONSEQUENT DANGEROUS PROBABILITY EXIST, THIS
STATUTE (THE SHERMAN ACT), LIKE MANY OTHERS AND LIKE THE COMMON LAW IN
SOME CASES, DIRECTS ITSELF AGAINST THAT DANGEROUS PROBABILITY AS WELL
AS AGAINST THE COMPLETED RESULT."  SWIFT & CO. V. UNITED STATES, 196
U.S. 375, 396.  SEE ALSO, AMERICAN TOBACCO CO. V. UNITED STATES, 328
U.S. 781; UNITED STATES V. ALUMINUM CO., 148 F.2D 416, 431. 

"THE SECOND SECTION (OF THE SHERMAN ACT) SEEKS, IF POSSIBLE, TO MAKE
THE PROHIBITIONS OF THE ACT ALL THE MORE COMPLETE AND PERFECT BY
EMBRACING ALL ATTEMPTS TO REACH THE END PROHIBITED BY THE FIRST
MONOPOLIZATION THEREOF, EVEN ALTHOUGH THE ACTS BY WHICH SUCH RESULTS
ARE ATTEMPTED TO BE BROUGHT ABOUT OR ARE BROUGHT ABOUT BE NOT EMBRACED
WITHIN THE GENERAL ENUMERATION OF THE FIRST SECTION."  STANDARD OIL CO.
V. UNITED STATES, 221 U.S. 1, 61.  (FN7) 

ASSUMING THE INTERSTATE CHARACTER OF THE COMMERCE INVOLVED, IT SEEMS
CLEAR THAT IF 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 SECS. 1 AND 2 OF THE
SHERMAN ACT.  CF. FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N,
312 U.S. 457, 465; BINDERUP V. PATHE EXCHANGE, 263 U.S. 291; FEDERAL
TRADE COMM'N V. BEECH-NUT PACKING CO., 257 U.S. 441; LOEWE V. LAWLOR,
208 U.S. 274; WILLIAM GOLDMAN THEATRES V. LOEW'S, INC., 150 F.2D 738. 
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 SEC. 2 WHEN IT USES ITS MONOPOLY TO
DESTROY THREATENED COMPETITION.  (FN8) 

THE PUBLISHER CLAIMS A RIGHT AS A PRIVATE BUSINESS CONCERN TO SELECT
ITS CUSTOMERS AND TO REFUSE TO ACCEPT ADVERTISEMENTS FROM WHOMEVER IT
PLEASES.  WE DO NOT DISPUTE THAT GENERAL RIGHT.  "BUT THE WORD 'RIGHT'
IS ONE OF THE MOST DECEPTIVE OF PITFALLS; IT IS SO EASY TO SLIP FROM A
QUALIFIED MEANING IN THE PREMISE TO AN UNQUALIFIED ONE IN THE
CONCLUSION.  MOST RIGHTS ARE QUALIFIED."  AMERICAN BANK & TRUST CO. V.
FEDERAL BANK, 256 U.S. 350, 358.  THE RIGHT CLAIMED BY THE PUBLISHER IS
NEITHER ABSOLUTE NOR EXEMPT FROM REGULATION.  ITS EXERCISE AS A
PURPOSEFUL MEANS OF MONOPOLIZING INTERSTATE COMMERCE IS PROHIBITED BY
THE SHERMAN ACT.  THE OPERATOR OF THE RADIO STATION, EQUALLY WITH THE
PUBLISHER OF THE NEWSPAPER, IS ENTITLED TO THE PROTECTION OF THAT ACT. 
"IN THE ABSENCE OF ANY PURPOSE TO CREATE OR MAINTAIN A MONOPOLY, THE
ACT DOES NOT RESTRICT THE LONG RECOGNIZED RIGHT OF TRADER OR
MANUFACTURER ENGAGED IN AN ENTIRELY PRIVATE BUSINESS, FREELY TO
EXERCISE HIS OWN INDEPENDENT DISCRETION AS TO PARTIES WITH WHOM HE WILL
DEAL."  UNITED STATES V. COLGATE & CO., 250 U.S. 300, 307.  SEE
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 15; UNITED STATES V.
BAUSCH & LOMB CO., 321 U.S. 707, 721-723. 

3.  THE INJUNCTION DOES NOT VIOLATE ANY GUARANTEED FREEDOM OF THE
PRESS.  THE PUBLISHER SUGGESTS THAT THE INJUNCTION AMOUNTS TO A PRIOR
RESTRAINT UPON WHAT IT MAY PUBLISH.  WE FIND IN IT NO RESTRICTION UPON
ANY GUARANTEED FREEDOM OF THE PRESS.  THE INJUNCTION APPLIES TO A
PUBLISHER WHAT THE LAW APPLIES TO OTHERS.  THE PUBLISHER MAY NOT ACCEPT
OR DENY ADVERTISEMENTS IN AN "ATTEMPT TO MONOPOLIZE  ...  ANY PART OF
THE TRADE OR COMMERCE AMONG THE SEVERAL STATES  ...  ."  ASSOCIATED
PRESS V. UNITED STATES, SUPRA, AT 6-7, 20; INDIANA FARMER'S GUIDE PUB.
CO. V. PRAIRIE FARMER PUB. CO., 293 U.S. 268.  SEE ALSO, OKLAHOMA PRESS
PUB. CO. V. WALLING, 327 U.S. 186, 192; MABEE V. WHITE PLAINS PUB. CO.,
327 U.S. 178, 184; ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103. 
INJUNCTIVE RELIEF UNDER SEC. 4 OF THE SHERMAN ACT IS AS APPROPRIATE A
MEANS OF ENFORCING THE ACT AGAINST NEWSPAPERS AS IT IS AGAINST OTHERS. 

4.  THE DECREE IS REASONABLY CONSISTENT WITH THE REQUIREMENTS OF THE
CASE AND REMAINS WITHIN THE CONTROL OF THE COURT BELOW.  (FN9)  WE HAVE
CONSIDERED THE OBJECTIONS MADE TO THE FORM AND SUBSTANCE OF THE DECREE
AND DO NOT FIND OBVIOUS ERROR.  IT IS SUGGESTED, FOR EXAMPLE, THAT THE
DECREE COVERS A BROADER SCOPE OF ACTIVITIES THAN IS REQUIRED BY THE
EVIDENCE AND REQUIRES UNNECESSARY SUPERVISION OF FUTURE CONDUCT OF THE
PUBLISHER, THAT NOTICE OF ITS TERMS MUST BE PUBLISHED AT LEAST ONCE A
WEEK FOR 25 WEEKS AND THAT THE PUBLISHER FOR FIVE YEARS MUST MAINTAIN
RECORDS RELATING TO THE SUBJECT OF THE JUDGMENT AND KEEP THEM
ACCESSIBLE FOR GOVERNMENTAL INSPECTION. 

WHILE THE DECREE SHOULD ANTICIPATE PROBABILITIES OF THE FUTURE, IT IS
EQUALLY IMPORTANT THAT IT DO NOT IMPOSE UNNECESSARY RESTRICTIONS AND
THAT THE PROCEDURE PRESCRIBED FOR SUPERVISION, GIVING NOTICE, KEEPING
RECORDS AND MAKING INSPECTIONS BE NOT UNDULY BURDENSOME. 

IN THE INSTANT CASE THE PRINTED RECORD CONTAINS NEITHER THE ENTIRE
TESTIMONY NOR ALL THE EXHIBITS WHICH WERE BEFORE THE COURT BELOW.  IT
OMITS ALSO MATERIAL MENTIONED DURING THE TRIAL AS HAVING BEEN
CONSIDERED BY THE COURT WHEN DENYING THE GOVERNMENT'S MOTION FOR A
TEMPORARY INJUNCTION.  UNDER THE CIRCUMSTANCES WE ARE CONTENT TO RELY
UPON THE TRIAL COURT'S RETENTION OF JURISDICTION OVER THE CAUSE FOR
WHATEVER MODIFICATION THE DECREE MAY REQUIRE IN THE LIGHT OF THE ENTIRE
PROCEEDINGS AND OF SUBSEQUENT EVENTS.  SEE ASSOCIATED PRESS V. UNITED
STATES, SUPRA, AT 22-23; UNITED STATES V. BAUSCH & LOMB CO., SUPRA, AT
727-729. 

THE JUDGMENT ACCORDINGLY IS AFFIRMED. 

FN1  "SEC.  2.  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  ...
. 

     *         *  *         *         * 

"SEC. 4.  THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE HEREBY
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  ... ."  26 STAT. 209, 36 STAT. 1167, 15
U.S.C.  SECS. 2 AND 4. 

FN2  THE INDIVIDUAL DEFENDANTS NAMED IN THE COMPLAINT WERE SAMUEL A.
HORVITZ, VICE PRESIDENT, SECRETARY AND A DIRECTOR OF THE CORPORATION;
ISADORE HORVITZ, PRESIDENT, TREASURER AND A DIRECTOR; D.P. SELF,
BUSINESS MANAGER; AND FRANK MALOY, EDITOR.  EACH PARTICIPATED IN THE
CONDUCT ALLEGED TO CONSTITUTE THE ATTEMPT TO MONOPOLIZE.  MALOY HAS
DIED PENDING THE APPEAL. 

FN3  THE SUNDAY NEWS HAS A WEEKLY CIRCULATION OF ABOUT 3,000 COPIES,
LARGELY IN LORAIN.  THE CHRONICLE-TELEGRAM IS A NEWSPAPER PUBLISHED
DAILY, EXCEPT SUNDAY, EIGHT MILES AWAY IN ELYRIA.  IT HAS A DAILY
CIRCULATION IN THAT CITY OF ABOUT 9,000 BUT NONE IN LORAIN.  THE
CLEVELAND PLAIN DEALER, NEWS AND PRESS ARE METROPOLITAN NEWSPAPERS
PUBLISHED DAILY, EXCEPT SUNDAY, IN CLEVELAND, 28 MILES EAST OF LORAIN. 
THEY HAVE A COMBINED DAILY CIRCULATION IN LORAIN OF ABOUT 6,000.  THE
CLEVELAND SUNDAY PLAIN DEALER HAS A SUNDAY CIRCULATION IN LORAIN OF
ABOUT 11,000.  THE CLEVELAND PAPERS CARRY NO LORAIN ADVERTISING AND
LITTLE LORAIN NEWS.  NO REFERENCE HAS BEEN MADE IN THE RECORD OR IN THE
ARGUMENT HERE TO COMPETITION FROM ANY RADIO STATION OTHER THAN WEOL. 

FN4  THE LICENSE ALSO COVERS WEOL-FM BUT THE TWO STATIONS ARE HERE
TREATED AS ONE.  WEOL OPERATES ON A FREQUENCY OF 930 KILOCYCLES AND
WEOL-FM OF 107.6 MEGACYCLES.  THE STATION OUTLINES ITS PRIMARY
LISTENING OR MARKET AREA ON THE BASIS OF A HALF MILLIVOLT DAYTIME
PATTERN AND A TWO MILLIVOLT NIGHTTIME PATTERN.  ITS DAY PATTERN REACHES
AN AREA CONTAINING ALL OR PART OF 20 COUNTIES AND AN ESTIMATED
POPULATION OF OVER 2,250,000.  ITS NIGHT PATTERN REACHES AN AREA
CONTAINING PARTS OF NINE OR THESE COUNTIES AND AN ESTIMATED POPULATION
OF ABOUT 450,000.  LORAIN COUNTY, WHICH INCLUDES THE COMMUNITIES OF
LORAIN, ELYRIA AND OBERLIN, CONTAINS ABOUT 120,000 PEOPLE, 52,000 OF
WHOM LIVE IN THE CITY OF LORAIN. 

FN5  OTHER FINDINGS SHOW THAT THE STATION BROADCASTS ADVERTISEMENTS
OF GOODS AND SERVICES ON BEHALF OF SUPPLIERS OUTSIDE OF OHIO.  THESE
SOMETIMES RESULT IN INTERSTATE ORDERS AND SHIPMENTS.  ORDERS RECEIVED
BY ITS LOCAL ADVERTISERS ARE SOMETIMES FILLED BY OUT-OF-STATE
SUPPLIERS.  THE STATION'S BROADCASTS INEVITABLY REACH ACROSS STATE
LINES.  THEY ARE HEARD WITH SOME REGULARITY BY MANY PEOPLE IN
SOUTHEASTERN MICHIGAN.  THE APPLICATION WHICH LED TO WEOL'S LICENSE WAS
CONSIDERED BY THE FEDERAL COMMUNICATIONS COMMISSION IN CONJUNCTION WITH
AN APPLICATION FOR ANOTHER LICENSE, SOUGHT BY A MICHIGAN STATION,
INVOLVING POSSIBLE CONFLICTS BETWEEN ITS COVERAGE AND THAT OF WEOL. 

FN6  THE REFERENCE IN SEC. 2 TO AN ATTEMPT TO MONOPOLIZE "ANY PART OF
THE TRADE OR COMMERCE AMONG THE SEVERAL STATES" RELATES NOT MERELY TO
INTERSTATE COMMERCE WITHIN ANY GEOGRAPHICAL PART OF THE UNITED STATES
BUT ALSO TO ANY APPRECIABLE PART OF SUCH INTERSTATE COMMERCE.  "THE
PROVISIONS OF SECS. 1 AND 2 HAVE BOTH A GEOGRAPHICAL AND DISTRIBUTIVE
SIGNIFICANCE AND APPLY TO ANY PART OF THE UNITED STATES AS
DISTINGUISHED FROM THE WHOLE AND TO ANY PART OF THE CLASSES OF THINGS
FORMING A PART OF INTERSTATE COMMERCE."  INDIANA FARMER'S GUIDE PUB.
CO. V. PRAIRIE FARMER PUB. CO., 293 U.S. 268, 279.  SEE ALSO, UNITED
STATES V. GRIFFITH, 334 U.S. 100, 106; UNITED STATES V. YELLOW CAB CO.,
332 U.S. 218, 225; MONTAGUE & CO. V. LOWRY, 193 U.S. 38. 

FN7  "SECTION 2 IS NOT RESTRICTED TO CONSPIRACIES OR COMBINATIONS TO
MONOPOLIZE BUT ALSO MAKES IT A CRIME FOR ANY PERSON TO MONOPOLIZE OR TO
ATTEMPT TO MONOPOLIZE ANY PART OF INTERSTATE OR FOREIGN TRADE OR
COMMERCE  ...  .  IT IS INDEED 'UNREASONABLE, PER SE, TO FORECLOSE
COMPETITORS FROM ANY SUBSTANTIAL MARKET  ...  .'  THE ANTI-TRUST LAWS
ARE AS MUCH VIOLATED BY THE PREVENTION OF COMPETITION AS BY ITS
DESTRUCTION  ...  .  IT FOLLOWS A FORTIORI THAT THE USE OF MONOPOLY
POWER, HOWEVER LAWFULLY ACQUIRED, TO FORECLOSE COMPETITION, TO GAIN A
COMPETITIVE ADVANTAGE, OR TO DESTROY A COMPETITOR, IS UNLAWFUL." 
UNITED STATES V. GRIFFITH, 334 U.S. 100, 106-107. 

FN8  APPELLANTS HAVE SOUGHT TO JUSTIFY THEIR CONDUCT ON THE GROUND
THAT IT WAS PART OF THE PUBLISHER'S PROGRAM FOR THE PROTECTION OF THE
LORAIN MARKET FROM OUTSIDE COMPETITION.  THE PUBLISHER CLAIMED TO HAVE
REFUSED ADVERTISING FROM ELYRIA OR OTHER OUT-OF-TOWN ADVERTISERS FOR
THE REASON THAT SUCH ADVERTISERS MIGHT COMPETE WITH LORAIN CONCERNS. 
THE PUBLISHER THEN CLASSIFIED WEOL AS THE PUBLISHER'S OWN COMPETITOR
FROM ELYRIA AND ASKED ITS LORAIN ADVERTISERS TO REFUSE TO EMPLOY WEOL
AS AN ADVERTISING MEDIUM IN COMPETITION WITH THE JOURNAL.  WE FIND NO
PRINCIPLE OF LAW WHICH REQUIRED LORAIN ADVERTISERS THUS TO BOYCOTT AN
ELYRIA ADVERTISING MEDIUM MERELY BECAUSE THE PUBLISHER OF A LORAIN
ADVERTISING MEDIUM HAD CHOSEN TO BOYCOTT SOME ELYRIA ADVERTISERS WHO
MIGHT COMPETE FOR BUSINESS IN THE LORAIN MARKET.  NOR DO WE FIND ANY
PRINCIPLE OF LAW WHICH PERMITTED THIS PUBLISHER TO DICTATE TO
PROSPECTIVE ADVERTISERS THAT THEY MIGHT ADVERTISE EITHER BY NEWSPAPER
OR BY RADIO BUT THAT THEY MIGHT NOT USE BOTH FACILITIES. 

FN9  A SUBSTANTIAL PART OF THE DECREE IS PRINTED IN THE APPENDIX,
INFRA, PP. 157-159. 

MR. JUSTICE CLARK AND MR. JUSTICE MINTON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

                                        APPENDIX. 

                               "FINAL JUDGMENT -  ...  . 

     *         *         *         *         *

                                       "III 

"DEFENDANT THE LORAIN JOURNAL COMPANY IS ENJOINED AND RESTRAINED
FROM: 

"A.  REFUSING TO ACCEPT FOR PUBLICATION OR REFUSING TO PUBLISH ANY
ADVERTISEMENT OR ADVERTISEMENTS OR DISCRIMINATING AS TO PRICE, SPACE,
ARRANGEMENT, LOCATION, COMMENCEMENT OR PERIOD OF INSERTION OR ANY OTHER
TERMS OR CONDITIONS OF PUBLICATION OF ADVERTISEMENT OR ADVERTISEMENTS
WHERE THE REASON FOR SUCH REFUSAL OR DISCRIMINATION IS, IN WHOLE OR IN
PART, EXPRESS OR IMPLIED, THAT THE PERSON, FIRM OR CORPORATION
SUBMITTING THE ADVERTISEMENT OR ADVERTISEMENTS HAS ADVERTISED,
ADVERTISES, HAS PROPOSED OR PROPOSES TO ADVERTISE IN OR THROUGH ANY
OTHER ADVERTISING MEDIUM. 

"B.  ACCEPTING FOR PUBLICATION OR PUBLISHING ANY ADVERTISEMENT OR
MAKING OR ADHERING TO ANY CONTRACT FOR THE PUBLICATION OF
ADVERTISEMENTS ON OR ACCOMPANIED BY ANY CONDITION, AGREEMENT OR
UNDERSTANDING, EXPRESS OR IMPLIED: 

"1.  THAT THE ADVERTISER SHALL NOT USE THE ADVERTISING MEDIUM OF ANY
PERSON, FIRM OR CORPORATION OTHER THAN DEFENDANT THE LORAIN JOURNAL
COMPANY: 

"2.  THAT THE ADVERTISER USE ONLY THE ADVERTISING MEDIUM OF DEFENDANT
THE LORAIN JOURNAL COMPANY:    "C.  CANCELLING, TERMINATING, REFUSING
TO RENEW OR IN ANY MANNER IMPAIRING ANY CONTRACT, AGREEMENT OR
UNDERSTANDING, INVOLVING THE PUBLICATION OF ADVERTISEMENTS, BETWEEN THE
DEFENDANTS, OR ANY OF THEM, AND ANY PERSON, FIRM OR CORPORATION FOR THE
REASON, IN WHOLE OR IN PART, THAT SUCH PERSON, FIRM OR CORPORATION
ADVERTISED, ADVERTISES OR PROPOSES TO ADVERTISE IN OR THROUGH ANY
ADVERTISING MEDIUM OTHER THAN THE NEWSPAPER PUBLISHED BY THE CORPORATE
DEFENDANT. 

      "IV 

"COMMENCING FIFTEEN (15) DAYS AFTER THE ENTRY OF THIS JUDGMENT AND AT
LEAST ONCE A WEEK FOR A PERIOD OF TWENTY-FIVE WEEKS THEREAFTER THE
CORPORATE DEFENDANT SHALL INSERT IN THE NEWSPAPER PUBLISHED BY IT A
NOTICE WHICH SHALL FAIRLY AND FULLY APPRISE THE READERS THEREOF OF THE
SUBSTANTIVE TERMS OF THIS JUDGMENT AND WHICH NOTICE SHALL BE PLACED IN
A CONSPICUOUS LOCATION. 

                                             "V 

"DEFENDANT THE LORAIN JOURNAL COMPANY AND THE INDIVIDUAL DEFENDANTS
ARE ORDERED AND DIRECTED TO: 

"A.  MAINTAIN FOR A PERIOD OF FIVE (5) YEARS FROM THE DATE OF THIS
JUDGMENT, ALL BOOKS AND RECORDS, WHICH SHALL INCLUDE ALL
CORRESPONDENCE, MEMORANDA, REPORTS AND OTHER WRITINGS, RELATING TO THE
SUBJECT MATTER OF THIS JUDGMENT: 

"B.  ADVISE IN WRITING WITHIN TEN (10) DAYS FROM THE DATE OF THIS
JUDGMENT ANY OFFICERS, AGENTS, EMPLOYEES, AND ANY OTHER PERSONS ACTING
FOR, THROUGH OR UNDER DEFENDANTS OR ANY OF THEM OF THE TERMS OF THIS
JUDGMENT AND THAT EACH AND EVERY SUCH PERSON IS SUBJECT TO THE
PROVISIONS OF THIS JUDGMENT.  THE DEFENDANTS SHALL MAKE READILY
AVAILABLE TO SUCH PERSONS A COPY OF THIS JUDGMENT AND SHALL INFORM THEM
OF SUCH AVAILABILITY. 

     *         *         *         *         *

                                             "VII 

"JURISDICTION OF THIS CAUSE IS RETAINED FOR THE PURPOSE OF ENABLING
ANY OF THE PARTIES TO THIS JUDGMENT TO APPLY TO THE COURT AT ANY TIME
FOR SUCH FURTHER ORDERS AND DIRECTIONS AS MAY BE NECESSARY OR
APPROPRIATE IN RELATION TO THE CONSTRUCTION OF, OR CARRYING OUT OF THIS
JUDGMENT, FOR THE AMENDMENT OR MODIFICATION OF ANY OF THE PROVISIONS
THEREOF, OR THE ENFORCEMENT OF COMPLIANCE THEREWITH AND FOR THE
PUNISHMENT OF VIOLATIONS THEREOF." 
..END :








UNITED STATES V. FORTIER 342 U.S. 160 


NO. 14.  ARGUED OCTOBER 10, 1951 - DECIDED DECEMBER 11, 1951 - 185 F.2D
608, AFFIRMED. 


A MAXIMUM SALE PRICE STIPULATED BY A BUILDER OF HOUSES, IN SECURING
PERMISSION TO BUILD AND PRIORITIES ASSISTANCE UNDER THE VETERANS'
EMERGENCY HOUSING ACT OF 1946 AND PRIORITIES REGULATION 33, DOES NOT
SURVIVE THE REPEAL OF THE STATUTORY AUTHORITY FOR THAT REGULATION BY
THE HOUSING AND RENT ACT OF 1947 AND MAY NOT BE ENFORCED AS TO HOUSES
SOLD AFTER SUCH REPEAL.  PP. 160-162. 

UNITED STATES V. FORTIER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

PER CURIAM. 

THE UNITED STATES BROUGHT THIS ACTION UNDER THE VETERANS' EMERGENCY
HOUSING ACT OF 1946 (FN1) TO COMPEL RESTITUTION OF ALLEGEDLY EXCESSIVE
PRICES CHARGED BY RESPONDENTS IN THE SALE OF TWO HOUSES.  THE DISTRICT
COURT ENTERED JUDGMENT FOR RESPONDENTS, 89 F. SUPP. 708, AND THE COURT
OF APPEALS FOR THE FIRST CIRCUIT AFFIRMED, 185 F.2D 608.  WE GRANTED
CERTIORARI, 341 U.S. 925. 

MAXIMUM SALES PRICES FOR THE TWO HOUSES HAD BEEN STIPULATED BY
RESPONDENTS IN SECURING THE PERMISSION TO BUILD REQUIRED UNDER
PRIORITIES REGULATION 33.  (FN2)  STATUTORY AUTHORITY FOR THAT
REGULATION HAD BEEN REPEALED BEFORE THE SALE OF RESPONDENTS' HOUSES,
EXCEPT FOR A PROVISO CONTINUING IN FULL FORCE AND EFFECT PRIORITIES FOR
BUILDING MATERIALS ISSUED UNDER THE VETERANS' EMERGENCY HOUSING ACT OF
1946.  (FN3)  THE GOVERNMENT VIEWS THE MAXIMUM PRICES STIPULATED BY
RESPONDENTS AS A CONDITION OF CONSTRUCTION AUTHORIZATION AND PRIORITIES
ASSISTANCE THAT SURVIVED REPEAL UNDER THE PROVISO.  WE REJECT THIS
VIEW. 

THE 1946 ACT CONTAINED DETAILED AUTHORIZATION FOR PRICE RESTRICTIONS
ON HOUSES AND FOR PRIORITIES ON BUILDING MATERIALS.  WHEN THAT ACT WAS
REPEALED IN 1947, CONGRESS PROVIDED FOR VETERANS' PREFERENCES IN THE
SALE AND RENTAL OF HOUSING AND FOR RENT CEILINGS ON CERTAIN
ACCOMMODATIONS CONSTRUCTED WITH THE ASSISTANCE OF PRIORITIES SECURED
UNDER THE 1946 ACT.  (FN4)  CONGRESS ADDRESSED ITSELF TO THE PROBLEM OF
VETERANS' HOUSING, BUT REFRAINED FROM IMPOSING ANY PRICE RESTRICTIONS
ON THE SALE OF HOUSES.  CONGRESS HAVING INDICATED A CONTRARY PURPOSE,
WE WILL NOT IMPOSE SUCH RESTRICTIONS BY IMPLICATION.  AFFIRMED. 

FN1  50 U.S.C. APP. SEC. 1821 ET SEQ. 

FN2  10 FED. REG. 15301, AS AMENDED, 11 FED. REG. 6598.  RESPONDENTS
WERE REQUIRED TO COMPLY WITH THIS REGULATION BY VETERANS' HOUSING
PROGRAM ORDER NO. 1, 11 FED.  REG. 3190. 

FN3  50 U.S.C. APP. (SUPP. IV) SEC. 1881(A), IN REPEALING THE 1946
ACT, PROVIDED: 

"THAT ANY ALLOCATIONS MADE OR COMMITTED, OR PRIORITIES GRANTED FOR
THE DELIVERY, OR ANY HOUSING MATERIALS OR FACILITIES UNDER ANY
REGULATION OR ORDER ISSUED UNDER THE AUTHORITY CONTAINED IN SAID ACT,
AND BEFORE THE DATE OF ENACTMENT OF THIS ACT (JUNE 30, 1947), WITH
RESPECT TO VETERANS OF WORLD WAR II, THEIR IMMEDIATE FAMILIES, AND
OTHERS, SHALL REMAIN IN FULL FORCE AND EFFECT." 

RESPONDENTS' HOUSES WERE NOT SOLD UNTIL NOVEMBER AND DECEMBER, 1947,
MONTHS AFTER REPEAL OF THE 1946 ACT.  AS A RESULT, NO "PENALTY,
FORFEITURE, OR LIABILITY" HAD BEEN INCURRED UNDER THE 1946 ACT WHICH
WOULD SURVIVE REPEAL UNDER THE GENERAL SAVING CLAUSE, 1 U.S.C.  (SUPP.
IV) SEC. 109.  COMPARE UNITED STATES V. CARTER, 171 F.2D 530 (C.A. 5TH
CIR. 1948). 

FN4  50 U.S.C. APP. (SUPP. IV) SEC. 1884(A); ID., SEC.
1892(C)(1)(B)(3)(A). 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















EX PARTE COGDELL 342 U.S. 163 


NO. 71, MISC.  CONTINUED DECEMBER 11, 1951 - CAUSE CONTINUED. 


BECAUSE THE QUESTION WHETHER A COURT OF THREE JUDGES IS REQUIRED BY 28
U.S.C. SEC. 2282 IN A SUIT TO RESTRAIN ON CONSTITUTIONAL GROUNDS
ENFORCEMENT OF CONGRESSIONAL ENACTMENTS AFFECTING ONLY THE DISTRICT OF
COLUMBIA IS A QUESTION OF GENERAL IMPORTANCE TO JUDICIAL ADMINISTRATION
WITHIN THE DISTRICT OF COLUMBIA AND IS NECESSARILY BEFORE THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA IN A PENDING APPEAL TAKEN BY
PETITIONERS, THE CASE ARISING ON THEIR PETITION FOR A WRIT OF MANDAMUS
FILED IN THIS COURT AND RAISING THE SAME QUESTION IS CONTINUED ON THE
DOCKET TO AWAIT THE VIEWS OF THE COURT OF APPEALS.  PP. 163-164. 

EX PARTE COGDELL ET AL. 

PETITION FOR WRIT OF MANDAMUS. 

PER CURIAM. 

PETITIONERS BROUGHT SUIT IN THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA TO RESTRAIN ON CONSTITUTIONAL GROUNDS THE ENFORCEMENT OF
CERTAIN LEGISLATION PASSED BY CONGRESS FOR THE ADMINISTRATION OF THE
DISTRICT OF COLUMBIA SCHOOL SYSTEM.  PETITIONERS' REQUEST THAT A COURT
OF THREE JUDGES BE CONVENED UNDER SECTION 2282 OF THE JUDICIAL CODE
(FN1) WAS DENIED.  SUBSEQUENTLY, THE MOTION OF DEFENDANT SCHOOL
OFFICIALS TO DISMISS THE SUIT FOR FAILURE TO STATE A CAUSE OF ACTION
WAS GRANTED. 

PETITIONERS FILED A MOTION IN THIS COURT FOR LEAVE TO FILE A PETITION
FOR A WRIT OF MANDAMUS DIRECTING THAT A COURT OF THREE JUDGES BE
CONVENED TO HEAR AND DETERMINE THEIR CONSTITUTIONAL CLAIMS.  AS
SUBSTANTIAL JURISDICTIONAL QUESTIONS WERE RAISED, WE GRANTED THE MOTION
AND ISSUED A RULE TO SHOW CAUSE ANY MANDAMUS SHOULD NOT BE GRANTED. 
342 U.S. 805.  IN ADDITION TO THIS MANDAMUS ACTION, APPEALS WERE TAKEN
BY PETITIONERS TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT AND ARE NOW PENDING IN THAT COURT. 

ONE OF THE JURISDICTIONAL QUESTIONS RAISED BY THIS CASE IS WHETHER A
COURT OF THREE JUDGES IS REQUIRED BY SECTION 2282 IN A SUIT TO ENJOIN
ENFORCEMENT OF CONGRESSIONAL ENACTMENTS AFFECTING ONLY THE DISTRICT OF
COLUMBIA.  THE SECTION USES THE WORDS "ANY ACT OF CONGRESS."  AS
AGAINST PETITIONERS' CONTENTION THAT ALL LEGISLATION PASSED BY CONGRESS
IS EMBRACED WITHIN THAT LANGUAGE, IT IS URGED THAT A PROPER
INTERPRETATION OF SECTION 2282 CONFINES THE PHRASE "ACT OF CONGRESS" TO
LAWS HAVING GENERAL APPLICATION THROUGHOUT THE UNITED STATES. 
RESOLUTION OF THIS ISSUE DETERMINES WHETHER THIS COURT HAS EXCLUSIVE
APPELLATE JURISDICTION IN THIS CLASS OF CASE, (FN2) OR WHETHER THE
COURT OF APPEALS HAS JURISDICTION.  AS A RESULT, THE SAME QUESTION IS
NECESSARILY BEFORE THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT IN ITS CONSIDERATION OF PETITIONERS' APPEALS NOW PENDING IN
THAT COURT.  (FN3)  BECAUSE THE QUESTION IS ONE OF GENERAL IMPORTANCE
TO JUDICIAL ADMINISTRATION WITHIN THE DISTRICT OF COLUMBIA, WE CONTINUE
THIS CASE ON OUR DOCKET TO AWAIT THE VIEWS OF THE COURT OF APPEALS. 
CAUSE CONTINUED. 

FN1  28 U.S.C. (SUPP. IV) SEC. 2282: 

"AN INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE
ENFORCEMENT, OPERATION OR EXECUTION OF ANY ACT OF CONGRESS FOR
REPUGNANCE TO THE CONSTITUTION OF THE UNITED STATES SHALL NOT BE
GRANTED BY ANY DISTRICT COURT OR JUDGE THEREOF UNLESS THE APPLICATION
THEREFOR IS HEARD AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES
UNDER SECTION 2284 OF THIS TITLE." 

FN2  28 U.S.C. (SUPP. IV) SEC. 1253. 

FN3  STRATTON V. ST. LOUIS SOUTHWESTERN R. CO., 282 U.S. 10 (1930). 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :



JENNINGS V. ILLINOIS 342 U.S. 104 


NO. 95.  ARGUED NOVEMBER 5-6, 1951 - DECIDED DECEMBER 3, 1951 -
JUDGMENTS VACATED AND CAUSES REMANDED. 


UNDER THE ILLINOIS POST-CONVICTION HEARING ACT, PETITIONER, A PRISONER
IN AN ILLINOIS PENITENTIARY, FILED IN THE STATE COURT IN WHICH HE HAD
BEEN CONVICTED A PETITION ALLEGING FACTS SUFFICIENT TO ESTABLISH A
PRIMA FACIE VIOLATION OF HIS RIGHTS UNDER THE FEDERAL CONSTITUTION
THROUGH THE ADMISSION OF A COERCED CONFESSION IN EVIDENCE AT HIS
TRIAL.  THE STATE'S ATTORNEY DID NOT DENY THESE ALLEGATIONS BUT MOVED
TO DISMISS THE PETITION ON GROUNDS OF RES JUDICATA AND FAILURE TO STATE
A CAUSE OF ACTION.  THE COURT DISMISSED THE PETITION WITHOUT A HEARING
OR OTHERWISE DETERMINING THE FACTUAL ISSUES PRESENTED.  THE STATE
SUPREME COURT, WITHOUT ARGUMENT AND WITHOUT OPINION, DISMISSED A WRIT
OF ERROR BY A FORM ORDER RECITING THAT IT HAD EXAMINED AND REVIEWED THE
PETITION AND RECORD IN THE POST-CONVICTION HEARING AND FOUND THE SAME
TO DISCLOSE NO VIOLATION OR DENIAL OF PETITIONER'S CONSTITUTIONAL
RIGHTS.  HELD:  JUDGMENT VACATED AND CAUSE REMANDED FOR FURTHER
PROCEEDINGS.  PP. 105-112. 

1.  IF HIS ALLEGATIONS ARE TRUE AND IF HIS CLAIM HAS NOT BEEN WAIVED
AT OR AFTER TRIAL, PETITIONER IS HELD IN CUSTODY IN VIOLATION OF
FEDERAL CONSTITUTIONAL RIGHTS; AND HE IS ENTITLED TO HIS DAY IN COURT
FOR RESOLUTION OF THESE ISSUES.  PP. 110-111. 

2.  ON REMAND, PETITIONER SHOULD BE ADVISED WHETHER HIS CLAIM THAT
HIS CONSTITUTIONAL RIGHTS WERE INFRINGED AT HIS TRIAL MAY BE DETERMINED
UNDER THE POST-CONVICTION HEARING ACT, OR WHETHER THAT ACT DOES NOT
PROVIDE AN APPROPRIATE STATE REMEDY IN THIS CASE.  P. 111. 

3.  IF PETITIONER'S CLAIM MAY BE RESOLVED IN A PROCEEDING UNDER THAT
ACT, EITHER BY AN INQUIRY INTO THE VERITY OF HIS FACTUAL ALLEGATIONS OR
A FINDING THAT HIS FEDERAL RIGHTS WERE WAIVED DURING OR AFTER HIS
TRIAL, SUCH RESOLUTION MAY PROCEED WITHOUT FURTHER ACTION BY THIS
COURT.  PP. 111-112. 

4.  IF ILLINOIS DOES NOT PROVIDE AN APPROPRIATE REMEDY FOR SUCH A
DETERMINATION, PETITIONER MAY PROCEED WITHOUT MORE TO APPLY TO THE
UNITED STATES DISTRICT COURT FOR A WRIT OF HABEAS CORPUS.  P. 112. 

JENNINGS V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS.* 

*TOGETHER WITH NO. 96, LA FRANA V. ILLINOIS; AND NO. 375, SHERMAN V.
ILLINOIS, ALSO ON CERTIORARI TO THE SAME COURT. 

ILLINOIS TRIAL COURTS DISMISSED PETITIONERS' PETITIONS UNDER THE
ILLINOIS POST-CONVICTION HEARING ACT, ILL. REV. STAT., 1951, C. 38,
SECS. 826-832.  THE ILLINOIS SUPREME COURT DISMISSED WRITS OF ERROR. 
THIS COURT GRANTED CERTIORARI.  341 U.S. 947; 342 U.S. 811.  JUDGMENTS
VACATED AND CAUSES REMANDED, P. 112. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

EACH OF THE THREE PETITIONERS IS CONFINED IN AN ILLINOIS PENITENTIARY
FOLLOWING CONVICTION OF SERIOUS CRIMES.  PETITIONERS' FACTUAL
ALLEGATIONS NEED NOT BE DESCRIBED, EXCEPT TO NOTE PETITIONERS' SPECIFIC
CLAIMS THAT CONFESSIONS INTRODUCED AT THEIR TRIALS WERE WRUNG FROM THEM
BY FORCE AND VIOLENCE.  ALTHOUGH SUCH ALLEGATIONS SET FORTH A PRIMA
FACIE VIOLATION OF FEDERAL CONSTITUTIONAL RIGHTS, (FN1) THERE HAS BEEN
NO DETERMINATION, EITHER BY REVIEW OF THE TRIAL RECORD OR BY HEARING OF
EVIDENCE, AS TO WHETHER PETITIONERS, IN FACT, ARE BEING IMPRISONED IN
VIOLATION OF THEIR RIGHTS UNDER THE CONSTITUTION. 

PRIOR TO THE CASE OF UNITED STATES EX REL. BONGIORNO V. RAGEN, 54 F.
SUPP. 973, 975-976 (D.C.N.D. ILL. 1944), INMATES OF ILLINOIS
PENITENTIARIES WERE DENIED THE RIGHT OF SENDING PAPERS TO THE COURTS. 
SINCE THAT DECISION, MANY ILLINOIS PRISONERS HAVE PRESENTED CLAIMS OF
DENIAL OF CONSTITUTIONAL RIGHTS AND COURTS HAVE SOUGHT TO DETERMINE
WHAT, IF ANY, IS THE POST-CONVICTION REMEDY AVAILABLE IN ILLINOIS TO
RAISE SUCH CLAIMS.  THE PROBLEM HAS BEEN HERE BEFORE.  WHITE V. RAGEN,
324 U.S. 760 (1945); WOODS V. NIERSTHEIMER, 328 U.S. 211 (1946); CARTER
V. ILLINOIS, 329 U.S. 173 (1946); FOSTER V. ILLINOIS, 332 U.S. 134
(1947); MARINO V. RAGEN, 332 U.S. 561 (1947); LOFTUS V. ILLINOIS, 334
U.S. 804 (1948), 337 U.S. 935 (1949).  FINALLY, IN YOUNG V. RAGEN, 337
U.S. 235 (1949), IT BECAME APPARENT THAT UNLESS HABEAS CORPUS WAS
AVAILABLE, THE ILLINOIS COURTS AFFORDED NO REMEDY FOR THE EIGHT
PRISONERS THEN BEFORE THE COURT, INCLUDING PETITIONER SHERMAN, NOW HERE
IN NO. 375.  ON REMAND TO THE CRIMINAL COURT OF COOK COUNTY, THAT COURT
HELD THAT HABEAS CORPUS WAS NOT AN APPROPRIATE REMEDY, A HOLDING THAT
COULD NOT BE REVIEWED BY THE ILLINOIS SUPREME COURT UNDER STATE
PRACTICE. 

MEANWHILE, THE ILLINOIS GENERAL ASSEMBLY PASSED THE ILLINOIS POST
CONVICTION HEARING ACT (FN2) TO PROVIDE A REMEDY FOR: 

"ANY PERSON IMPRISONED IN THE PENITENTIARY WHO ASSERTS THAT IN THE
PROCEEDINGS WHICH RESULTED IN HIS CONVICTION THERE WAS A SUBSTANTIAL
DENIAL OF HIS RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES OR OF
THE STATE OF ILLINOIS OR BOTH  ...  ." 

UNDER THIS ACT, THE COURT IN WHICH CONVICTION TOOK PLACE IS
AUTHORIZED TO GRANT RELIEF IN A PROCEEDING INITIATED BY THE FILING OF A
PETITION SETTING FORTH THE RESPECTS IN WHICH A PRISONER'S
CONSTITUTIONAL RIGHTS WERE VIOLATED.  THE STATE MAY THEN ANSWER TO MOVE
TO DISMISS THE PETITION AND THE TRIAL COURT IS AUTHORIZED TO RECEIVE
ORAL TESTIMONY OR DOCUMENTARY PROOF.  A FINAL JUDGMENT ON A PETITION
FILED UNDER THE ACT IS MADE REVIEWABLE IN THE ILLINOIS SUPREME COURT ON
WRIT OF ERROR.  (FN3) 

IN PEOPLE V. DALE, 406 ILL. 238, 92 N.E.2D 761 (1950), THE ILLINOIS
SUPREME COURT SUSTAINED THE POST-CONVICTION HEARING ACT AGAINST ATTACK
ON ILLINOIS CONSTITUTIONAL GROUNDS.  THE ACT WAS DESCRIBED AS PROVIDING
A NEW PROCEEDING TO AFFORD THE REQUIRED INQUIRY INTO THE CONSTITUTIONAL
INTEGRITY OF A CONVICTION.  IN THE DALE CASE, THE COURT ALSO STATED
THAT THE ACT DOES NOT AFFORD A REHEARING OF ISSUES THAT HAD ALREADY
BEEN FINALLY ADJUDICATED, REFERRING TO CASES WHERE THE ILLINOIS SUPREME
COURT HAD MADE SUCH AN ADJUDICATION. 

IN THE THREE CASES NOW BEFORE THE COURT, PETITIONERS PRESENTED THEIR
FACTUAL ALLEGATIONS TO THE TRIAL COURT IN PETITIONS FILED UNDER THE
POST-CONVICTION HEARING ACT.  THE STATE'S ATTORNEY FILED MOTIONS TO
DISMISS ON GROUNDS OF RES JUDICATA AND FAILURE TO STATE A CAUSE OF
ACTION AND THE TRIAL COURT DISMISSED EACH PETITION WITHOUT CONDUCTING A
HEARING OR OTHERWISE DETERMINING THE FACTUAL ISSUES PRESENTED.  THE
ILLINOIS SUPREME COURT DISMISSED WRIT OF ERROR IN EACH CASE WITHOUT
ARGUMENT AND WITHOUT OPINION, ENTERING FORM ORDERS PROVIDING THAT: 

"AFTER HAVING EXAMINED AND REVIEWED THE PETITION AND RECORD IN THE
POST CONVICTION HEARING THE SAME IS FOUND TO DISCLOSE NO VIOLATION OR
DENIAL OF ANY SUBSTANTIAL CONSTITUTIONAL RIGHTS OF THE PETITIONER UNDER
THE CONSTITUTION OF THE UNITED STATES OR OF THE CONSTITUTION OF THE
STATE OF ILLINOIS." 

WE GRANTED CERTIORARI, 341 U.S. 947, 342 U.S. 811 (1951). 

THE FORM ORDER ENTERED IN THESE THREE CASES HAS BEEN ENTERED IN EACH
OF THE TWENTY-FIVE CASES ARISING UNDER THE POST-CONVICTION HEARING ACT
THAT HAVE REACHED THIS COURT.  CERTIORARI HAS BEEN DENIED IN MANY OF
THESE CASES WHERE PETITIONERS ALLEGED FACTS WHICH, IF TRUE, PRESENTED
NO FEDERAL QUESTION.  IN SEVERAL OTHER CASES, THE TRIAL COURT REFUSED
TO GRANT THE STATE'S MOTION TO DISMISS THE POST-CONVICTION PETITION. 
INSTEAD, THE TRIAL COURT OBTAINED A TRANSCRIPT OF THE PETITIONER'S
TRIAL, REVIEWED THE ENTIRE RECORD AND FOUND THAT THERE HAD BEEN NO
DENIAL OF SUBSTANTIAL CONSTITUTIONAL RIGHTS.  (FN4)  HOWEVER, IN THE
CASES NOW BEFORE THE COURT, THE PETITIONS FILED IN THE TRIAL COURT
RAISED SUBSTANTIAL FEDERAL CLAIMS, PETITIONERS' FACTUAL ALLEGATIONS
WERE NOT DENIED BY THE STATE'S ATTORNEY AND THE COURTS BELOW HAVE
DENIED RELIEF WITHOUT INQUIRING INTO THE VERITY OF THE ALLEGATIONS OR
WHETHER PETITIONERS HAD WAIVED THEIR CLAIMS. 

AGAIN IN THESE CASES, AS IN YOUNG V. RAGEN, SUPRA, THE ATTORNEY
GENERAL OF ILLINOIS CONCEDES THAT PETITIONERS HAVE ALLEGED FACTS
SHOWING AN INFRINGEMENT OF FEDERAL RIGHTS.  AGAIN HE AGREES THAT
PETITIONERS ARE OR WERE ENTITLED TO A RESOLUTION OF THE FACTUAL ISSUES
RAISED.  BUT, AGAIN, THE ATTORNEY GENERAL EXPLAINS THE ACTION OF THE
STATE COURT AS RESTING UPON AN ADEQUATE GROUND OF STATE PROCEDURE. 
CITING CERTAIN LANGUAGE IN PEOPLE V. DALE, SUPRA, HE URGES THAT THE
JUDGMENTS BELOW MEAN THAT THE POST-CONVICTION HEARING ACT DOES NOT
PROVIDE AN APPROPRIATE REMEDY FOR CONSIDERATION OF CLAIMS WHICH WERE,
OR COULD HAVE BEEN, ADJUDICATED AT PETITIONERS' TRIALS. 

PETITIONERS CLAIM THAT THEY ARE HELD IN CUSTODY IN VIOLATION OF THE
FEDERAL CONSTITUTION IN THAT COERCED CONFESSIONS WERE USED TO OBTAIN
THEIR CONVICTIONS.  WHERE, AS HERE, A FEDERAL CLAIM CAN BE RAISED AT
THE TRIAL, IT MAY BE FORFEITED BY FAILURE TO MAKE A TIMELY ASSERTION OF
THE CLAIM.  (FN5) AND, IF A STATE PROVIDES A POST-CONVICTION CORRECTIVE
PROCESS, THAT PROCESS MUST BE INVOKED AND RELIEF DENIED BEFORE A CLAIM
OF DENIAL OF SUBSTANTIAL FEDERAL RIGHTS MAY BE ENTERTAINED BY A FEDERAL
COURT.  (FN6) IN INQUIRING WHETHER ANY SUCH CORRECTIVE PROCESS WAS
AVAILABLE TO PETITIONERS FOLLOWING THEIR CONVICTION, WE NOTE THAT UNDER
ILLINOIS PRACTICE, WRIT OF ERROR CAN BE USED TO BRING THE TRIAL RECORD,
INCLUDING A TRANSCRIPT OF THE PROCEEDINGS, BEFORE THE ILLINOIS SUPREME
COURT FOR REVIEW.  HOWEVER, PETITIONERS COULD OBTAIN REVIEW BY WRIT OF
ERROR ONLY IF A BILL OF EXCEPTIONS OR THE REPORT OF PROCEEDINGS AT THE
TRIAL HAD BEEN SUBMITTED TO THE TRIAL COURT WITHIN A LIMITED PERIOD
AFTER CONVICTION.  (FN7) WHILE ILLINOIS PROVIDES A TRANSCRIPT WITHOUT
COST TO INDIGENT DEFENDANTS WHO HAVE BEEN SENTENCED TO DEATH, IN THE
ABSENCE OF SOME ILLINOIS PROCEDURE TO PERMIT OTHER INDIGENT DEFENDANTS
TO SECURE AN ADEQUATE RECORD PETITIONERS COULD UTILIZE THE WRIT OF
ERROR PROCEDURE ONLY BY PURCHASING THE TRANSCRIPT WITHIN THE LIMITED
PERIOD FOLLOWING CONVICTION.  (FN8)  SINCE PETITIONERS IN THESE CASES
HAVE TAKEN PAUPERS' OATHS, THE ATTORNEY GENERAL OF ILLINOIS CONCEDES
THAT WRIT OF ERROR HAS NOT BEEN AVAILABLE TO REVIEW THEIR CLAIMS, AND
WE FIND NOTHING IN THIS RECORD TO JUSTIFY A DIFFERENT POSITION.  (FN9)
WE DO NOT CONSIDER HERE ANY INDEPENDENT QUESTION THAT MIGHT BE RAISED
BY A STATE'S FAILURE TO PROVIDE TO AN INDIGENT DEFENDANT THE TRANSCRIPT
OF HIS TRIAL.  IT IS SUFFICIENT FOR THE PURPOSE OF THIS CASE THAT, IF
WRIT OF ERROR WAS NOT AVAILABLE TO PETITIONERS AND IF THE ATTORNEY
GENERAL IS CORRECT IN STATING THAT THE POST-CONVICTION HEARING ACT DOES
NOT PROVIDE AN APPROPRIATE REMEDY IN THIS TYPE OF CASE, THERE NEVER HAS
BEEN, AND IS NOT NOW, ANY STATE POST-CONVICTION REMEDY AVAILABLE FOR
DETERMINATION OF PETITIONERS' CLAIMS THAT THEIR FEDERAL RIGHTS HAVE
BEEN INFRINGED. 

IF THEIR ALLEGATIONS ARE TRUE AND IF THEIR CLAIMS HAVE NOT BEEN
WAIVED AT OR AFTER TRIAL, PETITIONERS ARE HELD IN CUSTODY IN VIOLATION
OF FEDERAL CONSTITUTIONAL RIGHTS.  PETITIONERS ARE ENTITLED TO THEIR
DAY IN COURT FOR RESOLUTION OF THESE ISSUES.  WHERE THE STATE DOES NOT
AFFORD A REMEDY, A STATE PRISONER MAY APPLY FOR A WRIT OF HABEAS CORPUS
IN THE UNITED STATES DISTRICT COURT TO SECURE PROTECTION OF HIS FEDERAL
RIGHTS.  (FN10) 

THE ATTORNEY GENERAL OF ILLINOIS ASKS US TO AFFIRM THE JUDGMENTS
BELOW AS RESTING UPON AN INDEPENDENT STATE GROUND EVEN THOUGH HE
ACKNOWLEDGES THAT SUCH ACTION WOULD PERMIT PETITIONERS TO PROCEED IN
THE DISTRICT COURT WITHOUT MORE.  BUT WE DO NOT LIGHTLY ASSUME THAT A
STATE HAS FAILED TO PROVIDE ANY POST-CONVICTION REMEDY IF A DEFENDANT
IS IMPRISONED IN VIOLATION OF CONSTITUTIONAL RIGHTS.  (FN11)
ACCORDINGLY, WE CONSIDER IT APPROPRIATE THAT THE ILLINOIS SUPREME COURT
BE PERMITTED TO PROVIDE DEFINITE ANSWERS TO THE QUESTIONS OF STATE LAW
RAISED BY THESE CASES. 

UNLIKE OUR ACTION IN LOFTUS V. ILLINOIS, SUPRA, HOWEVER, WE DO NOT
CONTINUE THESE CASES ON OUR DOCKET PENDING FURTHER CONSIDERATION BY THE
ILLINOIS SUPREME COURT.  INSTEAD, WE VACATE THE JUDGMENTS BELOW AND
REMAND THE CASES TO THE ILLINOIS SUPREME COURT FOR FURTHER
PROCEEDINGS.  SEE MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551 (1940). 
ON REMAND, PETITIONERS SHOULD BE ADVISED WHETHER THEIR CLAIMS THAT
CONSTITUTIONAL RIGHTS WERE INFRINGED AT THEIR TRIALS MAY BE DETERMINED
UNDER THE POST-CONVICTION HEARING ACT, OR WHETHER THAT ACT DOES NOT
PROVIDE AN APPROPRIATE STATE REMEDY IN THESE CASES.  IF PETITIONERS'
CLAIMS MAY BE RESOLVED IN A PROCEEDING UNDER THE ACT, EITHER BY AN
INQUIRY INTO THE VERITY OF THEIR FACTUAL ALLEGATIONS OR A FINDING THAT
FEDERAL RIGHTS WERE WAIVED DURING OR AFTER THEIR TRIALS, SUCH
RESOLUTION MAY PROCEED WITHOUT FURTHER ACTION BY THIS COURT.  IF
ILLINOIS DOES NOT PROVIDE AN APPROPRIATE REMEDY FOR SUCH A
DETERMINATION, PETITIONERS MAY PROCEED WITHOUT MORE IN THE UNITED
STATES DISTRICT COURT.  IT IS SO ORDERED. 

FN1  BROWN V. MISSISSIPPI, 297 U.S. 278 (1936). 

FN2  ILL. REV. STAT., 1951, C. 38, SECS. 826-832. 

FN3  IN A NUMBER OF RECENT CASES IN WHICH OTHER ILLINOIS PROCEDURES
WERE INVOKED, THIS COURT HAS DENIED CERTIORARI WITH THE EXPRESS
STATEMENT THAT DENIAL WAS WITHOUT PREJUDICE TO PETITIONERS' PROCEEDING
UNDER THE NEW ACT.  E.G., WALKER V. RAGEN, 338 U.S. 833 (1949). 

FN4  E.G., PEOPLE V. SUPERO, NO. 1169, AND PEOPLE V. GEHANT, NO.
1146, BOTH CASES DECIDED BY THE ILLINOIS SUPREME COURT ON MAY 24,
1951.  CERTIORARI WAS ALSO DENIED IN THESE CASES.  342 U.S. 836, 840
(1951). 

FN5  SEE YAKUS V. UNITED STATES, 321 U.S. 414, 444 (1944), AND CASES
CITED THEREIN.  AS A RESULT OF THE FACT THAT THE TRANSCRIPTS OF
PETITIONERS' TRIALS ARE NOT INCLUDED IN THE RECORDS IN THESE POST
CONVICTION PROCEEDINGS, NOTE 8, INFRA, IT CANNOT BE KNOWN AT THIS STAGE
OF THE PROCEEDINGS THAT PETITIONERS WAIVED ALL OF THEIR FEDERAL CLAIMS
AT THEIR TRIALS. 

FN6  SEE FRANK V. MANGUM, 237 U.S. 309, 327 (1915).  PETITIONERS DO
NOT ALLEGE THAT ANY COERCION WAS USED TO BAR OBJECTION TO THE USE OF
THE CONFESSIONS OR FROM HAVING THEIR CONVICTIONS SET ASIDE ON REVIEW. 

FN7  ILL. REV. STAT., 1951, C. 110, SEC. 259.70A.  AT THE TIME OF
PETITIONERS' CONVICTIONS, THE PERIOD WAS 50 DAYS, SUBJECT TO EXTENSION
ON MOTION FILED WITHIN THAT PERIOD.  RECENTLY, THE PERIOD WAS EXTENDED
TO 100 DAYS.  COMPARE ILL. REV. STAT., 1949, C. 110, SEC. 259.70A. 

FN8  ILL. REV. STAT., 1951, C. 37, SEC. 163B; ID. C. 38, SEC. 769A. 
COMPARE 28 U.S.C.  (SUPP. IV) SECS. 1915, 2245, 2250.  THE TRANSCRIPTS
OF PETITIONERS' TRIALS HAVE NOT BEEN MADE PART OF THE RECORD IN THEIR
POST-CONVICTION PROCEEDINGS.  INCOMPLETE EXCERPTS HAVE BEEN PURCHASED,
ACCORDING TO PETITIONERS, OUT OF THEIR MEAGER EARNINGS WHILE IN
PRISON.  THOSE EXCERPTS WERE ATTACHED AS EXHIBITS TO THE PETITIONS
FILED IN THE TRIAL COURT. 

FN9  THIS DOES NOT, OF COURSE, FORECLOSE THE STATE FROM SHOWING THAT
ANY OF THE PETITIONERS, IN FACT, COULD HAVE OBTAINED REVIEW OF THEIR
CLAIMS BY WRIT OF ERROR AND FROM DETERMINING WHAT, IF ANY, EFFECT SUCH
A SHOWING WOULD HAVE ON THE AVAILABILITY OF ANY OTHER REMEDY UNDER
ILLINOIS LAW.  THE STATE IS ALSO FREE TO REQUIRE MORE PARTICULARITY IN
THE ALLEGATIONS AND ASSERTIONS OF THESE PETITIONERS WHO HAVE FILED
THEIR PAPERS PRO SE THROUGHOUT THESE PROCEEDINGS.  PYLE V. KANSAS, 317
U.S. 213, 216 (1942). 

IN REJECTING THE SUGGESTION THAT THESE WRITS OF CERTIORARI BE
DISMISSED, WE NOTE THAT IT IS AT LEAST HIGHLY QUESTIONABLE WHETHER, IF
THE JUDGMENTS BELOW ARE PERMITTED TO STAND, PETITIONERS WOULD BE
PERMITTED TO RAISE AGAIN IN NEW PROCEEDINGS ANY CLAIMS THAT WERE OR
COULD HAVE BEEN RAISED IN THESE PROCEEDINGS.  ILL. REV. STAT., 1951, C.
38, SECS. 828, 832.  SEE JENNER, THE ILLINOIS POST-CONVICTION HEARING
ACT, 9 F.R.D. 347, 358, 360 (1949).    FN10  28 U.S.C. (SUPP. IV) SECS.
2241(C)(3), 2254; HAWK V. OLSON, 326 U.S. 271, 276 (1945); HOUSE V.
MAYO, 324 U.S. 42, 46 (1945); EX PARTE HAWK, 321 U.S. 114, 118 (1944);
MOORE V. DEMPSEY, 261 U.S. 86 (1923). 

FN11  YOUNG V. RAGEN, SUPRA; SMITH V. O'GRADY, 312 U.S. 329, 331
(1941). 

FOR DISSENTING OPINION OF MR. JUSTICE MINTON, SEE POST, P. 116. 
MR. JUSTICE FRANKFURTER, DISSENTING. 

WE ALL AGREE, I ASSUME, THAT WE OUGHT NOT TO IMPUTE AN OBSTINATE
FLOUTING OF THIS COURT'S REPEATED ADJUDICATIONS TO THE HIGHEST COURT OF
A STATE UNLESS ITS ACTION PRECLUDES ANY OTHER FAIR INFERENCE.  THIS IS
MORE THAN A MERE GESTURE OF COURTESY.  IT GOES TO THE VERY CONCEPTION
OF THE RELATIONSHIP OF THE STATE COURTS TO THIS COURT IN OUR FEDERAL
SYSTEM.  ACCORDINGLY, JUST AS REASONABLE LEGAL GROUND MUST BE
ATTRIBUTED TO OUR DISPOSITIONS WITHOUT OPINION, SO EXPLANATIONS
RATIONALLY CONSONANT WITH LEGALITY MUST BE ATTRIBUTED TO THE ILLINOIS
ORDERS. 

ONE DIFFICULTY WITH THE REMAND OF THE CASES TO ILLINOIS IS THAT THE
EXPLANATORY OPINION LEAVES UNCERTAINTY REGARDING THE ISSUE ON WHICH
THIS COURT IS ASKING THE ILLINOIS SUPREME COURT FOR CLARIFICATION.  THE
ORDERS UNDER REVIEW MAY REST ON ONE OF TWO LEGALLY ENTERTAINABLE
GROUNDS:  THAT (A) THE ILLINOIS PROCEEDINGS DISCLOSE NO INFRACTION OF
THE FOURTEENTH AMENDMENT, OR (B) AS A MATTER OF LOCAL PROCEDURAL LAW,
THE CLAIM OF SUCH INFRACTION WAS NOT PROPERLY PRESENTED. 

IF WE THINK THAT A SUBSTANTIAL FEDERAL CLAIM IS RAISED IN THESE
CASES, FOR WHICH A HEARING WAS REQUIRED BUT DENIED, AND THE DENIAL
COULD ONLY BE JUSTIFIED BECAUSE ALLOWABLE LOCAL PROCEDURE WAS
DISREGARDED IN THE MANNER IN WHICH THIS FEDERAL RIGHT WAS PURSUED, IT
WOULD BE APPROPRIATE, OF COURSE, FOR US TO ASK THE ILLINOIS SUPREME
COURT TO TELL US EXPLICITLY WHETHER THESE CASES WENT OFF ON SUCH A NON
FEDERAL GROUND, AND IF SO WHAT IT IS.  SEE MINNESOTA V. NATIONAL TEA
CO., 309 U.S. 551.  IF THIS IS WHAT THE COURT MEANS TO DO, IT OUGHT NOT
TO BE TOO DIFFICULT FOR THE OPINION TO SAY SO VERY SIMPLY.  BUT TO
ADOPT THIS COURSE, WE MUST BE CONVINCED THAT A FEDERAL CLAIM OF
SUBSTANCE IS PRESENTED BY THE RECORD WHICH, BUT FOR THE LEGITIMATE
STATE PROCEDURAL REQUIREMENT, IS ENTITLED TO BE HEARD.  WE SHOULD,
THEN, AT LEAST SUGGEST WHAT THAT CLAIM IS. 

ALTERNATIVELY, THESE ILLINOIS ORDERS MAY REST, NOT ON A PROCEDURALLY
JUSTIFIABLE REFUSAL TO ENTERTAIN A SUBSTANTIAL FEDERAL CLAIM, BUT ON
THE VIEW OF THE ILLINOIS COURT THAT NO SUCH SUBSTANTIAL FEDERAL CLAIM
IS IN ISSUE.  IF THE COURT DISAGREES, IT IS CERTAINLY PROPER TO REMAND
THE CASE TO THE STATE COURT WITH INSTRUCTIONS TO ACCORD A HEARING TO
THE CLAIM OF FEDERAL RIGHT PRESENTED. 

BUT IN EITHER CASE, IS IT NOT INCUMBENT ON THIS COURT TO STATE
WITHOUT ANY ROUNDABOUTNESS WHAT THE SUBSTANTIAL FEDERAL QUESTION IS AND
HOW IT IS PROPERLY BEFORE US?  IT SEEMS TO ME THAT THE FORMULATION OF
THE SUBSTANTIAL FEDERAL CLAIM, TO WHICH THE ILLINOIS SUPREME COURT IS
SAID TO HAVE BEEN DEAF, IS THE CRUCIAL ISSUE IN THESE CASES.  WE WOULD
BE EXACTLY WHERE WE NOW ARE IF THE ILLINOIS SUPREME COURT WERE MOST
RESPECTFULLY TO REPLY TO OUR REQUEST FOR CLARIFICATION BY SAYING: "WHY
OF COURSE A HEARING IS REQUIRED UNDER ILLINOIS LAW OF A SUBSTANTIAL
CLAIM UNDER THE UNITED STATES CONSTITUTION.  BUT IN THESE CASES WE
FOUND NO SUCH SUBSTANTIAL FEDERAL CLAIM."  (FN1) 

WHAT IS THE SUBSTANTIAL FEDERAL QUESTION?  CERTAINLY WHETHER A CLAIM
WHICH COULD HAVE BEEN RAISED BY THE METHOD OF DIRECT REVIEW OF THE
TRIAL PROCEEDINGS BUT WAS NOT, MUST BE ALLOWED TO BE RAISED IN SOME
COLLATERAL ATTACK, IS NOT A SUBSTANTIAL FEDERAL QUESTION.  SUCH A
REQUIREMENT CANNOT BE MADE OF THE STATES UNDER THE FOURTEENTH
AMENDMENT.  IT IS NOT ENFORCEABLE EVEN AS TO FEDERAL PROSECUTIONS. 
SUNAL V. LARGE, 332 U.S. 174. 

IS THEN THE FEDERAL CLAIM THE DENIAL BY ILLINOIS OF STENOGRAPHIC
MINUTES OF A TRIAL TO AN INDIGENT DEFENDANT?  I APPRECIATE THAT SUCH A
DENIAL MIGHT BE FOUND TO BE IN VIOLATION OF THE FOURTEENTH AMENDMENT,
AND MORE PARTICULARLY OF ITS EQUAL PROTECTION CLAUSE, IN A STATE WHICH
HAS A SYSTEM OF CRIMINAL APPEALS.  IS THIS BEING DECIDED NOW?  AND IS
SO FAR-REACHING A GENERAL CLAIM DECIDED INFERENTIALLY, WITHOUT ARGUMENT
OR CONSIDERATION OF ALL THE RELEVANT SUBSIDIARY QUESTIONS THAT THE
GENERAL PROPOSITION WOULD RAISE?  (FN2) 

OR DOES THE COURT HOLD THAT, IN THE CIRCUMSTANCES OF THIS CASE, THE
PETITIONERS ARE ENTITLED, AS A MATTER OF FEDERAL RIGHT, TO AN
INDEPENDENT INQUIRY INTO THE CONSTITUTIONAL VALIDITY OF THEIR
CONVICTIONS EVEN THOUGH THE QUESTIONS RAISED WERE, OR COULD HAVE BEEN,
DETERMINED AT THE TRIALS?  AND IF SO WHAT ARE THE CIRCUMSTANCES WHICH
PROVIDE A BASIS FOR THAT CONCLUSION? 

A READING OF THE COURT'S OPINION WITH THE CARE AND DEFERENCE THAT
SHOULD BE ACCORDED IT BY A DOUBTER HAS NOT REVEALED WHICH IF ANY OF
THESE POSSIBLE FEDERAL CLAIMS HAS BEEN DENIED SO AS TO PROVIDE THE
NECESSARY BASIS FOR A REMAND TO THE STATE COURT. 

MY DIFFICULTY, HOWEVER, IS NOT MERELY WITH AMBIGUITY OR, PERHAPS,
OBSCURITY IN DEFINING THE FEDERAL RIGHT WHICH WAS, OR MAY HAVE BEEN,
DENIED BY THE ILLINOIS PROCEEDINGS HERE FOR REVIEW.  THE FATAL
WEAKNESS, AS I SEE IT, IS THAT THE QUESTION OF A DENIAL OR ONE OR MORE
PUTATIVE FEDERAL RIGHTS IS NOWHERE PROPERLY RAISED ON THE RECORD BEFORE
US. 

IT IS TRUE THAT PETITIONERS ALLEGE THEY WERE CONVICTED ON THE BASIS
OF COERCED CONFESSIONS AND PERJURED TESTIMONY ADMITTED IN EVIDENCE IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  BUT SO FAR AS APPEARS FROM THE
RECORD, THESE ISSUES WERE FULLY LITIGATED AND DETERMINED AT THE
TRIALS.  UNTIL THE CASES CAME TO THIS COURT, NO SHOWING WAS MADE, OR
SOUGHT TO BE MADE, THAT CIRCUMSTANCES WERE SUCH AS TO WARRANT A NEW AND
INDEPENDENT INQUIRY INTO THOSE DETERMINATIONS AS A MATTER OF FEDERAL
RIGHT. 

WHETHER THESE PETITIONERS COULD HAVE APPEALED FROM THEIR CONVICTIONS
BUT DID NOT, WHAT PROCEDURES WERE AVAILABLE FOR PERFECTING AN APPEAL,
WHETHER THE CIRCUMSTANCES WERE SUCH AS EFFECTIVELY TO DENY TO THESE
PETITIONERS THE OPPORTUNITY FOR DIRECT REVIEW OF THEIR CONVICTIONS -
ANSWERS TO ALL THESE QUESTIONS ARE INDISPENSABLE TO A JUDGMENT ON THE
NATURE AND SCOPE OF THE FEDERAL RIGHT, IF ANY, WHICH ILLINOIS MAY HAVE
DENIED THESE PRISONERS IN THIS PROCEEDING.  BUT THEY ARE QUESTIONS
ENTANGLED IN THE PROCEDURAL LAW OF ILLINOIS AND IN THE FACTS AND
CIRCUMSTANCES SURROUNDING THE CONVICTION OF THESE PETITIONERS.  THE
ILLINOIS COURTS HAVE NEVER PASSED ON THEM BECAUSE THEY WERE NEVER
RAISED.  AND NEITHER THEY NOR WE CAN PASS ON THEM UNLESS THEY ARE
RAISED IN SOME APPROPRIATE WAY.  WHITNEY V. CALIFORNIA, 274 U.S. 357,
379-380 (MR. JUSTICE BRANDEIS, CONCURRING). 

OF COURSE, WE READ THE SELF-COMPOSED CLAIMS OF AN INDIGENT DEFENDANT
WITH GENEROUS INFERENCES AND DO NOT REQUIRE ELEGANCE OF PLEADING.  WE
DO NOT MAKE SUCH AN EXACTION EVEN OF LAWYERS' PLEADINGS.  WE OUGHT TO
DIG OUT OF A COMPLAINT WHAT IS IN IT, AND STATE COURTS SURELY FEEL
THEMSELVES UNDER A SIMILAR OBLIGATION WHEN QUESTIONS OF CONSTITUTIONAL
RIGHT ARE INVOLVED.  BUT THIS IS ENTIRELY DIFFERENT FROM CONSTRUCTING A
NEW CASE NOT EVEN VAGUELY ADUMBRATED IN THE COMPLAINT WHICH MOVES A
COURT TO ACTION.  STILL LESS OUGHT THIS COURT TO ORIGINATE LITIGATION
IN THIS WAY WHEN TO DO SO IS TO DISRESPECT THE JUDGMENT OF A STATE
COURT AND TO DECIDE, AT LEAST IMPLICITLY, DIFFICULT CONSTITUTIONAL
QUESTIONS WITHOUT THE FOUNDATION OF FACT AND CIRCUMSTANCE NEEDED TO
ILLUMINE THEIR CONSIDERATION. 

IN LIGHT OF THESE VIEWS, I CANNOT JOIN THE COURT'S DISPOSITION OF
THESE CASES.  I THINK THE WRITS SHOULD BE DISMISSED FOR WANT OF A
PROPERLY PRESENTED FEDERAL QUESTION.  SUCH A DISMISSAL WOULD NOT, OF
COURSE, BAR A NEW PROCEEDING, DIFFERENTLY CONCEIVED, TENDERING ONE OR
MORE OF THE FEDERAL QUESTIONS HERE DISCUSSED.  CERTAINLY IF, FOR
WHATEVER REASON, THE ILLINOIS COURTS FAIL TO AFFORD CORRECTIVE RELIEF
FOR THE DENIAL OF A RIGHT GUARANTEED BY THE UNITED STATES CONSTITUTION,
THE ROAD TO THE FEDERAL COURT IS OPEN.  MOONEY V. HOLOHAN, 294 U.S.
103; DOWD V. UNITED STATES EX REL. COOK, 340 U.S. 206.  AT THE CORE OF
THE PROBLEM REMAINS THE PRECISE DEFINITION OF THE BASIS FOR INVOKING
THE FOURTEENTH AMENDMENT. 

FN1  INDEED, IT IS DIFFICULT TO INTERPRET THE ORDERS BEFORE US FOR
REVIEW AS SAYING ANYTHING ELSE:  "IT IS FURTHER CONSIDERED BY THE COURT
THAT AFTER HAVING EXAMINED AND REVIEWED THE PETITION AND RECORD IN THE
POST CONVICTION HEARING THE SAME IS FOUND TO DISCLOSE NO VIOLATION OR
DENIAL OF ANY SUBSTANTIAL CONSTITUTIONAL RIGHTS OF THE PETITIONER UNDER
THE CONSTITUTION OF THE UNITED STATES  ...  ."

FN2  IT IS AT LEAST RELEVANT TO REMIND THAT UNDER EXISTING FEDERAL
HABEAS CORPUS PROCEDURE, THE JUDGE WHO PRESIDED AT THE TRIAL RESULTING
IN CONVICTION MAY PREPARE A CERTIFICATE "SETTING FORTH THE FACTS
OCCURRING AT THE TRIAL" FOR USE IN THE HABEAS CORPUS COURT.  28 U.S.C.
SEC. 2245 (I AM NOT UNMINDFUL OF SEC. 2250 ENACTED IN 1948).  AND THE
"JUDGE'S NOTES" IS THE HISTORIC BASIS FOR APPELLATE REVIEW IN ENGLAND,
WHICH, I TAKE IT, IS A MODE NOT UNLIKE THAT OF THE "BYSTANDER'S RECORD"
IN SOME OF THE STATES.  I DO NOT NOW MEAN TO ARGUE THE MAIN QUESTION
NOR ITS SUBSIDIARY PROBLEMS NOR TO INTIMATE ANY CONSIDERED VIEW UPON
THEM.  BUT AS AN INDICATION OF THE KIND OF ISSUES THAT ARE RAISED
BEFORE REACHING A CONCLUSION ON THE GENERAL AND ABSTRACT PROPOSITION
THAT FAILURE TO PROVIDE STENOGRAPHIC MINUTES WITHOUT COST TO AN
INDIGENT DEFENDANT IS A VIOLATION OF A GUARANTY OF THE FOURTEENTH
AMENDMENT, IT IS USEFUL TO RECALL SOMETHING OF THE HISTORY TOUCHING THE
MEANS BY WHICH ERRORS AT NISI ARE BROUGHT TO THE ATTENTION OF AN
APPELLATE COURT. 

MR. JUSTICE MINTON, DISSENTING. 

I DISSENT AS I AM OF THE OPINION THE ILLINOIS SUPREME COURT BASED ITS
JUDGMENT AND OPINION UPON AN ADEQUATE STATE GROUND. 
..END :





















STEFANELLI V. MINARD 342 U.S. 117 


NO. 2.  ARGUED OCTOBER 16, 1951 - DECIDED DECEMBER 3, 1951 - 184 F.2D
575, AFFIRMED. 


1.  IN CIVIL PROCEEDINGS BROUGHT IN THE FEDERAL DISTRICT COURT UNDER
R.S. SEC. 1979, 8 U.S.C. SEC. 43 (CIVIL RIGHTS ACT), PETITIONERS SOUGHT
AN INJUNCTION AGAINST THE USE, IN PENDING STATE CRIMINAL PROCEEDINGS
AGAINST THEM IN NEW JERSEY, OF EVIDENCE CLAIMED TO HAVE BEEN OBTAINED
BY AN UNLAWFUL SEARCH BY STATE POLICE.  HELD:  THE DISTRICT COURT
PROPERLY DISMISSED THE COMPLAINTS.  PP. 117-125. 

2.  FEDERAL COURTS SHOULD REFUSE TO INTERVENE IN STATE CRIMINAL
PROCEEDINGS TO SUPPRESS THE USE OF EVIDENCE EVEN WHEN CLAIMED TO HAVE
BEEN SECURED BY UNLAWFUL SEARCH AND SEIZURE.  PP. 120-125. 

STEFANELLI ET AL. V. MINARD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN SUITS BROUGHT BY PETITIONERS UNDER R.S. SEC. 1979, 8 U.S.C. SEC.
43, TO ENJOIN THE USE, IN A STATE CRIMINAL TRIAL, OF EVIDENCE CLAIMED
TO HAVE BEEN OBTAINED BY AN UNLAWFUL SEARCH BY STATE POLICE, THE
DISTRICT COURT DISMISSED THE COMPLAINTS.  THE COURT OF APPEALS
AFFIRMED.  184 F.2D 575.  THIS COURT GRANTED CERTIORARI.  341 U.S.
930.  AFFIRMED, P. 125. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ASKED EQUITABLE RELIEF FROM THE FEDERAL DISTRICT COURT TO
PREVENT THE FRUIT OF AN UNLAWFUL SEARCH BY NEW JERSEY POLICE FROM BEING
USED IN EVIDENCE IN A STATE CRIMINAL TRIAL.  THE SUIT WAS BROUGHT UNDER
R.S. SEC. 1979, 8 U.S.C. SEC. 43, PROVIDING FOR REDRESS AGAINST "EVERY
PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION, CUSTOM,
OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICTION THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS  ...  ."  (FN1)  UPON
RESPONDENTS' MOTION, THE DISTRICT COURT DISMISSED THE COMPLAINTS, "IT
APPEARING THAT THE PLAINTIFFS HAVE NOT EXHAUSTED THEIR REMEDIES UNDER
STATE LAW."  THE COURT OF APPEALS AFFIRMED.  184 F.2D 575.  SINCE IT
RAISES IMPORTANT QUESTIONS TOUCHING THE CIVIL RIGHTS ACT IN THE CONTEXT
OF OUR FEDERAL SYSTEM WE BROUGHT THE CASE HERE.  341 U.S. 930. 

TWO SUITS, ARISING OUT OF SEPARATE SERIES OF EVENTS, WERE
CONSOLIDATED IN THE COURT OF APPEALS AND ARE BEFORE US AS ONE CASE. 
THE FACTS DO NOT DIFFER MATERIALLY.  NEWARK POLICE OFFICERS ENTERED
PETITIONERS' HOMES WITHOUT LEGAL AUTHORITY.  THERE THEY SEIZED PROPERTY
OF PETITIONERS USEFUL IN BOOKMAKING, A MISDEMEANOR UNDER N.J. REV.
STAT. 2:135-3.  IT IS NOT DISPUTED THAT THESE SEARCHES, IF MADE BY
FEDERAL OFFICERS, WOULD HAVE VIOLATED THE FOURTH AMENDMENT.  STEFANELLI
WAS ARRESTED, ARRAIGNED AND SUBSEQUENTLY INDICTED FOR BOOKMAKING.  HE
PLEADED NOT GUILTY.  THE OTHER PETITIONERS, AFTER HEARING, WERE HELD ON
THE SAME CHARGE TO AWAIT THE ACTION OF THE ESSEX COUNTY GRAND JURY. 
ALL ALLEGE THAT THE SEIZED PROPERTY IS DESTINED FOR EVIDENCE AGAINST
THEM IN THE NEW JERSEY CRIMINAL PROCEEDINGS.  PETITIONERS HAVE MADE NO
MOVE IN THE STATE COURTS TO SUPPRESS THE EVIDENCE, JUSTIFYING THEIR
FAILURE TO DO SO ON THE GROUND THAT UNDER EXISTING NEW JERSEY LAW THE
SEIZED PROPERTY IS ADMISSIBLE WITHOUT REGARD TO THE ILLEGALITY OF ITS
PROCUREMENT. 

PETITIONERS INVOKE OUR DECISION IN WOLF V. COLORADO, 338 U.S. 25. 
THE PRECISE HOLDING IN THAT CASE WAS "THAT IN A PROSECUTION IN A STATE
COURT FOR A STATE CRIME THE FOURTEENTH AMENDMENT DOES NOT FORBID THE
ADMISSION OF EVIDENCE OBTAINED BY AN UNREASONABLE SEARCH AND SEIZURE." 
ID., AT 33.  ALTHOUGH OUR HOLDING WAS THUS NARROWLY CONFINED, IN THE
COURSE OF THE OPINION IT WAS SAID:  "THE SECURITY OF ONE'S PRIVACY
AGAINST ARBITRARY INTRUSION BY THE POLICE - WHICH IS AT THE CORE OF THE
FOURTH AMENDMENT - IS BASIC TO A FREE SOCIETY.  IT IS THEREFORE
IMPLICIT IN 'THE CONCEPT OF ORDERED LIBERTY' AND AS SUCH ENFORCEABLE
AGAINST THE STATES THROUGH THE DUE PROCESS CLAUSE  ...  . ACCORDINGLY,
WE HAVE NO HESITATION IN SAYING THAT WERE A STATE AFFIRMATIVELY TO
SANCTION SUCH POLICE INCURSION INTO PRIVACY IT WOULD RUN COUNTER TO THE
GUARANTY OF THE FOURTEENTH AMENDMENT."  ID., AT 27-28.  THERE WAS
DISAGREEMENT AS TO THE LEGAL CONSEQUENCES OF THIS VIEW, BUT NONE AS TO
ITS VALIDITY.  WE ADHERE TO IT.  UPON IT IS FOUNDED THE ARGUMENT OF
PETITIONERS. 

IF THE FOURTEENTH AMENDMENT FORBIDS UNREASONABLE SEARCHES AND
SEIZURES BY THE STATES, THEY CONTEND, SUCH A SEARCH AND SEIZURE BY
STATE POLICE OFFICERS SUBJECTS ITS VICTIMS TO THE DEPRIVATION, UNDER
COLOR OF STATE LAW, OF A RIGHT, PRIVILEGE OR IMMUNITY SECURED BY THE
CONSTITUTION FOR WHICH REDRESS IS AFFORDED BY R.S. SEC. 1979. 
APPROPRIATE REDRESS, THEY URGE, IS A SUIT IN EQUITY TO SUPPRESS THE
EVIDENCE IN ORDER TO BAR ITS FURTHER USE IN STATE CRIMINAL
PROCEEDINGS. 

THERE IS NO OCCASION TO CONSIDER SUCH CONSTITUTIONAL QUESTIONS UNLESS
THEIR ANSWERS ARE INDISPENSABLE TO THE DISPOSITION OF THE CAUSE BEFORE
US.  IN THE VIEW WE TAKE, WE NEED NOT DECIDE WHETHER THE COMPLAINT
STATES A CAUSE OF ACTION UNDER R.S. SEC. 1979.  FOR EVEN IF THE POWER
TO GRANT THE RELIEF HERE SOUGHT MAY FAIRLY AND CONSTITUTIONALLY BE
DERIVED FROM THE GENERALITY OF LANGUAGE OF THE CIVIL RIGHTS ACT, TO
SUSTAIN THE CLAIM WOULD DISREGARD THE POWER OF COURTS OF EQUITY TO
EXERCISE DISCRETION WHEN, IN A MATTER OF EQUITY JURISDICTION, THE
BALANCE IS AGAINST THE WISDOM OF USING THEIR POWER.  HERE THE
CONSIDERATIONS GOVERNING THAT DISCRETION TOUCH PERHAPS THE MOST
SENSITIVE SOURCE OF FRICTION BETWEEN STATES AND NATION, NAMELY, THE
ACTIVE INTRUSION OF THE FEDERAL COURTS IN THE ADMINISTRATION OF THE
CRIMINAL LAW FOR THE PROSECUTION OF CRIMES SOLELY WITHIN THE POWER OF
THE STATES. 

WE HOLD THAT THE FEDERAL COURTS SHOULD REFUSE TO INTERVENE IN STATE
CRIMINAL PROCEEDINGS TO SUPPRESS THE USE OF EVIDENCE EVEN WHEN CLAIMED
TO HAVE BEEN SECURED BY UNLAWFUL SEARCH AND SEIZURE.  THE MAXIM THAT
EQUITY WILL NOT ENJOIN A CRIMINAL PROSECUTION SUMMARIZES CENTURIES OF
WEIGHTY EXPERIENCE IN ANGLO-AMERICAN LAW.  IT IS IMPRESSIVELY
REINFORCED WHEN NOT MERELY THE RELATIONS BETWEEN COORDINATE COURTS BUT
BETWEEN COORDINATE POLITICAL AUTHORITIES ARE IN ISSUE.  THE SPECIAL
DELICACY OF THE ADJUSTMENT TO BE PRESERVED BETWEEN FEDERAL EQUITABLE
POWER AND STATE ADMINISTRATION OF ITS OWN LAW, HAS BEEN AN HISTORIC
CONCERN OF CONGRESSIONAL ENACTMENT, SEE, E.G., 28 U.S.C. SECS. 1341,
1342, 2283, 2284(5).  THIS CONCERN HAS BEEN REFLECTED IN DECISIONS OF
THIS COURT, NOT GOVERNED BY EXPLICIT CONGRESSIONAL REQUIREMENT, BEARING
ON A STATE'S ENFORCEMENT OF ITS CRIMINAL LAW.  E.G., WATSON V. BUCK,
313 U.S. 387; BEAL V. MISSOURI PACIFIC R. CO., 312 U.S. 45; SPIELMAN
MOTOR CO. V. DODGE, 295 U.S. 89; FENNER V. BOYKIN, 271 U.S. 240.  IT
HAS RECEIVED STRIKING CONFIRMATION EVEN WHERE AN IMPORTANT
COUNTERVAILING FEDERAL INTEREST WAS INVOLVED.  MARYLAND V. SOPER (NO.
1), 270 U.S. 9; MARYLAND V. SOPER (NO. 2), 270 U.S. 36; MARYLAND V.
SOPER (NO. 3), 270 U.S. 44.  (FN2) 

THESE CONSIDERATIONS HAVE INFORMED OUR CONSTRUCTION OF THE CIVIL
RIGHTS ACT.  THIS ACT HAS GIVEN RISE TO DIFFERENCES OF APPLICATION
HERE.  SUCH DIFFERENCES INHERE IN THE ATTEMPT TO CONSTRUE THE REMAINING
FRAGMENTS OF A COMPREHENSIVE ENACTMENT, DISMEMBERED BY PARTIAL REPEAL
AND INVALIDITY, LOOSELY AND BLINDLY DRAFTED IN THE FIRST INSTANCE,
(FN3) AND DRAWING ON THE WHOLE CONSTITUTION ITSELF FOR ITS SCOPE AND
MEANING.  REGARDLESS OF DIFFERENCES IN PARTICULAR CASES, HOWEVER, THE
COURT'S LODESTAR OF ADJUDICATION HAS BEEN THAT THE STATUTE "SHOULD BE
CONSTRUED SO AS TO RESPECT THE PROPER BALANCE BETWEEN THE STATES AND
THE FEDERAL GOVERNMENT IN LAW ENFORCEMENT."  SCREWS V. UNITED STATES,
325 U.S. 91, 108.  ONLY LAST TERM WE REITERATED OUR CONVICTION THAT THE
CIVIL RIGHTS ACT "WAS NOT TO BE USED TO CENTRALIZE POWER SO AS TO UPSET
THE FEDERAL SYSTEM."  COLLINS V. HARDYMAN, 341 U.S. 651, 658. 
DISCRETIONARY REFUSAL TO EXERCISE EQUITABLE POWER UNDER THE ACT TO
INTERFERE WITH STATE CRIMINAL PROSECUTION IS ONE OF THE DEVICES WE HAVE
SANCTIONED FOR PRESERVING THIS BALANCE.  DOUGLAS V. CITY OF JEANNETTE,
319 U.S. 157.  AND UNDER THE VERY SECTION NOW INVOKED, WE HAVE WITHHELD
RELIEF IN EQUITY EVEN WHEN RECOGNIZING THAT COMPARABLE FACTS WOULD
CREATE A CAUSE OF ACTION FOR DAMAGES.  COMPARE GILES V. HARRIS, 189
U.S. 475, WITH LANE V. WILSON, 307 U.S. 268. 

IN DOUGLAS V. CITY OF JEANNETTE, SUPRA, THE COURT, SPEAKING THROUGH
CHIEF JUSTICE STONE, SAID: 

"CONGRESS, BY ITS LEGISLATION, HAS ADOPTED THE POLICY, WITH CERTAIN
WELL DEFINED STATUTORY EXCEPTIONS, OF LEAVING GENERALLY TO THE STATE
COURTS THE TRIAL OF CRIMINAL CASES ARISING UNDER STATE LAWS, SUBJECT TO
REVIEW BY THIS COURT OF ANY FEDERAL QUESTIONS INVOLVED.  HENCE, COURTS
OF EQUITY IN THE EXERCISE OF THEIR DISCRETIONARY POWERS SHOULD CONFORM
TO THIS POLICY BY REFUSING TO INTERFERE WITH OR EMBARRASS THREATENED
PROCEEDINGS IN STATE COURTS SAVE IN THOSE EXCEPTIONAL CASES WHICH CALL
FOR THE INTERPOSITION OF A COURT OF EQUITY TO PREVENT IRREPARABLE
INJURY WHICH IS CLEAR AND IMMINENT; ... ."  ID., AT 163.  (FN4) 

NO SUCH IRREPARABLE INJURY, CLEAR AND IMMINENT, IS THREATENED HERE. 
AT WORST, THE EVIDENCE SOUGHT TO BE SUPPRESSED MAY PROVIDE THE BASIS
FOR CONVICTION OF THE PETITIONERS IN THE NEW JERSEY COURTS.  SUCH A
CONVICTION, WE HAVE HELD, WOULD NOT DEPRIVE THEM OF DUE PROCESS OF
LAW.  WOLF V. COLORADO, SUPRA. 

IF THESE CONSIDERATIONS LIMIT FEDERAL COURTS IN RESTRAINING STATE
PROSECUTIONS MERELY THREATENED, HOW MUCH MORE COGENT ARE THEY TO
PREVENT FEDERAL INTERFERENCE WITH PROCEEDINGS ONCE BEGUN.  IF THE
FEDERAL EQUITY POWER MUST REFRAIN FROM STAYING STATE PROSECUTIONS
OUTRIGHT TO TRY THE CENTRAL QUESTION OF THE VALIDITY OF THE STATUTE ON
WHICH THE PROSECUTION IS BASED, HOW MUCH MORE RELUCTANT MUST IT BE TO
INTERVENE PIECEMEAL TO TRY COLLATERAL ISSUES.  (FN5) 

THE CONSEQUENCES OF EXERCISING THE EQUITY POWER HERE INVOKED ARE NOT
THE CONCERN OF A MERELY DOCTRINAIRE ALERTNESS TO PROTECT THE PROPER
SPHERE OF THE STATES IN ENFORCING THEIR CRIMINAL LAW.  IF WE WERE TO
SANCTION THIS INTERVENTION, WE WOULD EXPOSE EVERY STATE CRIMINAL
PROSECUTION TO INSUPPORTABLE DISRUPTION.  EVERY QUESTION OF PROCEDURAL
DUE PROCESS OF LAW - WITH ITS FAR-FLUNG AND UNDEFINED RANGE - WOULD
INVITE A FLANKING MOVEMENT AGAINST THE SYSTEM OF STATE COURTS BY RESORT
TO THE FEDERAL FORUM, WITH REVIEW IF NEED BE TO THIS COURT, TO
DETERMINE THE ISSUE.  ASSERTED UNCONSTITUTIONALITY IN THE IMPANELING
AND SELECTION OF THE GRAND (FN6) AND PETIT (FN7) JURIES, IN THE FAILURE
TO APPOINT COUNSEL, (FN8) IN THE ADMISSION OF A CONFESSION, (FN9) IN
THE CREATION OF AN UNFAIR TRIAL ATMOSPHERE, (FN10) IN THE MISCONDUCT OF
THE TRIAL COURT (FN11) - ALL WOULD PROVIDE READY OPPORTUNITIES, WHICH
CONSCIENTIOUS COUNSEL MIGHT BE BOUND TO EMPLOY, TO SUBVERT THE ORDERLY,
EFFECTIVE PROSECUTION OF LOCAL CRIME IN LOCAL COURTS.  TO SUGGEST THESE
DIFFICULTIES IS TO RECOGNIZE THEIR SOLUTION.  (FN12) 

MR. JUSTICE HOLMES DEALT WITH THIS PROBLEM IN A SITUATION ESPECIALLY
APPEALING:  "THE RELATION OF THE UNITED STATES AND THE COURTS OF THE
UNITED STATES TO THE STATES AND THE COURTS OF THE STATES IS A VERY
DELICATE MATTER THAT HAS OCCUPIED THE THOUGHTS OF STATESMEN AND JUDGES
FOR A HUNDRED YEARS AND CAN NOT BE DISPOSED OF BY A SUMMARY STATEMENT
THAT JUSTICE REQUIRES ME TO CUT RED TAPE AND TO INTERVENE."  MEMORANDUM
OF MR. JUSTICE HOLMES IN 5 THE SACCO-VANZETTI CASE, TRANSCRIPT OF THE
RECORD (HENRY HOLT & CO., 1929) 5516.  A PROPER RESPECT FOR THOSE
RELATIONS REQUIRES THAT THE JUDGMENT BELOW BE AFFIRMED. 

FN1  "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

JURISDICTION WAS FOUNDED, WITHOUT REGARD TO CITIZENSHIP OF THE
PARTIES OR AMOUNT IN CONTROVERSY, ON 28 U.S.C. SEC. 1343(3): 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY CIVIL
ACTION AUTHORIZED BY LAW TO BE COMMENCED BY ANY PERSON: 

     *         *         *         *         * 

"(3)  TO REDRESS THE DEPRIVATION, UNDER COLOR OF ANY STATE LAW,
STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY RIGHT,
PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION OF THE UNITED STATES
OR BY ANY ACT OF CONGRESS PROVIDING FOR EQUAL RIGHTS OF CITIZENS OR OF
ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES."  HAGUE V.
C.I.O., 307 U.S. 496. 

FN2  IN THOSE CASES, DESPITE THE OBVIOUS CONCERN OF CONGRESS FOR
ENFORCEMENT OF REVENUE LAWS UNIMPEDED BY LOCAL OPPOSITION, THE COURT
DULY RESPECTED STATE CRIMINAL JUSTICE BY CAREFULLY LIMITING THE POWER
OF REMOVING TO THE FEDERAL COURTS STATE CRIMINAL PROSECUTIONS INVOLVING
FEDERAL REVENUE OFFICERS WHO CLAIMED THAT SUCH PROSECUTIONS WERE "ON
ACCOUNT OF ANY ACT DONE UNDER THE COLOR OF THEIR OFFICE."  R.S. SEC.
643, NOW 28 U.S.C. SEC. 1442. 

FN3  WE RECENTLY COMMENTED ON THE CIRCUMSTANCES SURROUNDING THE
ENACTMENT OF THIS LEGISLATION IN UNITED STATES V. WILLIAMS, 341 U.S.
70, 74, AND COLLINS V. HARDYMAN, 341 U.S. 651, 657. 

FN4  HAGUE V. C.I.O., SUPRA, WAS DISTINGUISHED IN THE JEANNETTE CASE:
"IN THESE RESPECTS THE CASE DIFFERS FROM HAGUE V. C.I.O., SUPRA, 501
02, WHERE LOCAL OFFICIALS FORCIBLY BROKE UP MEETINGS OF THE
COMPLAINANTS AND IN MANY INSTANCES FORCIBLY DEPORTED THEM FROM THE
STATE WITHOUT TRIAL."  DOUGLAS V. CITY OF JEANNETTE, SUPRA, AT 164. 

FN5  CONGRESS HAS CONSISTENTLY DEMONSTRATED CONCERN THAT THE ORDERLY
COURSE OF JUDICIAL PROCEEDINGS SHOULD NOT, IN THE ABSENCE OF COMPELLING
CIRCUMSTANCES DEFINED BY STATUTE, BE BROKEN UP FOR THE PIECEMEAL
DETERMINATION OF THE ISSUES INVOLVED.  SEE, E.G., 28 U.S.C. SEC. 1291;
COBBLEDICK V. UNITED STATES, 309 U.S. 323 (APPEALS FROM "FINAL
DECISIONS" OF THE DISTRICT COURTS); 28 U.S.C. SEC. 1441(C) (REMOVAL OF
"SEPARABLE CONTROVERSIES"); AND CF. HURN V. OURSLER, 289 U.S. 238. 
FN6  SEE SMITH V. TEXAS, 311 U.S. 128. 

FN7  SEE STRAUDER V. WEST VIRGINIA, 100 U.S. 303; PIERRE V.
LOUISIANA, 306 U.S. 354. 

FN8  SEE POWELL V. ALABAMA, 287 U.S. 45. 

FN9  SEE WATTS V. INDIANA, 338 U.S. 49. 

FN10  SEE MOORE V. DEMPSEY, 261 U.S. 86.    FN11  SEE TOWNSEND V.
BURKE, 334 U.S. 736. 

FN12  ALTHOUGH THIS IS THE FIRST SUCH CASE TO REACH US, INSTANCES ARE
NOT WANTING WHERE THE FAIRNESS OF STATE COURT PROCEEDINGS HAS BEEN
ATTACKED IN THE LOWER FEDERAL COURTS UNDER R.S.  SEC. 1979 AND RELATED
DAMAGES WAS SUSTAINED AGAINST A MOTION TO DISMISS WHERE PLAINTIFF
ALLEGED THAT SHE WAS ARRESTED WITHOUT WARRANT, THAT DEFENDANTS, A
JUSTICE OF THE PEACE AND A CONSTABLE, MALICIOUSLY SECURED THE
APPOINTMENT OF A BIASED JURY AND SUBJECTED HER TO A FRAUDULENT TRIAL
RESULTING IN A CONVICTION REVERSED ON APPEAL.  MCSHANE V. MOLDOVAN, 172
F.2D 1016; CF. PICKING V. PENNSYLVANIA R. CO., 151 F.2D 240 (COMPLAINT
SEEKING DAMAGES FOR FALSE ARREST AND DETENTION IN VIOLATION OF THE
UNIFORM EXTRADITION ACT SUSTAINED AGAINST MOTION TO DISMISS).  BUT SEE
CAMPO V. NIEMEYER, 182 F.2D 115; LYONS V. BAKER, 180 F.2D 893; BOTTONE
V. LINDSLEY, 170 F.2D 705; MITCHELL V. GREENOUGH, 100 F.2D 184; LLANO
DEL RIO CO. V. ANDERSON-POST HARDWOOD LUMBER CO., 79 F. SUPP. 382,
AFF'D PER CURIAM, 187 F.2D 235.  CLOSER TO THE CASE BEFORE US ARE SUITS
FOR INJUNCTIONS GROUNDED ON THE CONTENTION THAT PARTICULAR PHASES OF
CRIMINAL PROCEEDINGS ARE UNFAIR.  THE LOWER COURTS HAVE REFUSED TO
INTERVENE.  COOPER V. HUTCHINSON, 184 F.2D 119 (REFUSAL OF STATE COURT
TO ALLOW CRIMINAL DEFENDANT COUNSEL OF HIS OWN CHOOSING; CASE REMANDED
FOR DISTRICT COURT TO RETAIN JURISDICTION PENDING EXHAUSTION OF STATE
REMEDIES); ACKERMAN V.  INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S
UNION, 187 F.2D 860, REVERSING 82 F. SUPP. 65, WHICH HAD ENJOINED
PROSECUTIONS IN PART ON THE GROUND OF DISCRIMINATION IN SELECTION OF
GRAND JURY PANEL; MCGUIRE V. AMREIN, 101 F. SUPP. 414 (REFUSAL TO
SUPPRESS WIRE TAP EVIDENCE; ALTERNATE GROUND); ERICKSON V. HOGAN, 94 F.
SUPP. 459 (SUPPRESSION OF EVIDENCE OBTAINED THROUGH UNLAWFUL SEARCH AND
SEIZURE); REFOULE V. ELLIS, 74 F. SUPP. 336 (COURT WOULD NOT ENJOIN USE
OF ALLEGEDLY COERCED CONFESSION IN STATE PROSECUTION ALTHOUGH ENJOINING
FUTURE UNLAWFUL ARREST, DETENTION AND INTERROGATION OF PLAINTIFF); CF.
EASTUS V. BRADSHAW, 94 F.2D 788.  AND SEE HOFFMAN V. O'BRIEN, 88 F.
SUPP. 490, WHERE AN ACTION UNDER R.S. SEC. 1979 TO ENJOIN THE
ENFORCEMENT OF THE NEW YORK WIRE TAP LAW WAS DISMISSED FOR WANT OF A
JUSTICIABLE CONTROVERSY. 

MR. JUSTICE BLACK AND MR. JUSTICE CLARK CONCUR IN THE RESULT. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

MR. JUSTICE MURPHY, MR. JUSTICE RUTLEDGE, AND I VOTED IN WOLF V.
COLORADO, 338 U.S. 25, THAT EVIDENCE OBTAINED AS A RESULT OF AN
UNREASONABLE SEARCH AND SEIZURE SHOULD BE EXCLUDED FROM STATE AS WELL
AS FEDERAL TRIALS.  IN RETROSPECT THE VIEWS EXPRESSED BY MR. JUSTICE
MURPHY AND MR. JUSTICE RUTLEDGE GROW IN POWER AND PERSUASIVENESS.  I
ADHERE TO THEM.  I THEREFORE THINK THAT ANY COURT MAY WITH PROPRIETY
STEP IN TO PREVENT THE USE OF THIS ILLEGAL EVIDENCE.  TO HOLD FIRST
THAT THE EVIDENCE MAY BE ADMITTED AND SECOND THAT ITS USE MAY NOT BE
ENJOINED IS TO MAKE THE FOURTH AMENDMENT AN EMPTY AND HOLLOW GUARANTEE
SO FAR AS STATE PROSECUTIONS ARE CONCERNED. 
..END :





COOK V. COOK 342 U.S. 126 


NO. 30.  ARGUED NOVEMBER 7, 1951 - DECIDED DECEMBER 3, 1951 - 116 VT.
374, 76 A.2D 593, REVERSED. 


1.  IT IS TO BE PRESUMED, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY,
THAT A FLORIDA COURT WHICH GRANTED A DECREE OF DIVORCE HAD JURISDICTION
OVER BOTH PARTIES, THEREBY RENDERING THE ISSUE OF JURISDICTION OVER THE
CAUSE RES JUDICATA ON A COLLATERAL ATTACK IN ANOTHER STATE.  PP. 127
128. 

2.  UPON THE RECORD IN THIS CASE, THE VERMONT COURT COULD NOT
CONSISTENTLY WITH THE FULL FAITH AND CREDIT CLAUSE SUSTAIN A COLLATERAL
ATTACK UPON A FLORIDA DIVORCE DECREE, SINCE THE PRESUMPTION OF
JURISDICTION OVER THE CAUSE AND THE PARTIES, TO WHICH THE FLORIDA
DECREE WAS ENTITLED, WAS NOT OVERCOME BY EXTRINSIC EVIDENCE OR BY THE
RECORD ITSELF.  PP. 126-129. 

COOK V. COOK. 

CERTIORARI TO THE SUPREME COURT OF VERMONT. 

IN A PROCEEDING BROUGHT BY RESPONDENT IN A VERMONT STATE COURT FOR
THE ANNULMENT OF HIS MARRIAGE AND REMARRIAGE TO PETITIONER, THE STATE
SUPREME COURT HELD BOTH MARRIAGES NULL AND VOID.  116 VT. 374, 76 A.2D
593.  THIS COURT GRANTED CERTIORARI.  341 U.S. 914.  REVERSED, P. 129. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SHORTLY AFTER PETITIONER AND RESPONDENT WERE MARRIED ON FEBRUARY 5,
1943, RESPONDENT DISCOVERED THAT PETITIONER WAS THE LAWFUL WIFE OF ONE
MANN.  AT THAT TIME PETITIONER AND RESPONDENT WERE LIVING IN VIRGINIA
AND AGREED THAT PETITIONER WOULD GO TO FLORIDA AND OBTAIN THERE A
DIVORCE FROM MANN, SO THAT THEY COULD BE REMARRIED.  THAT COURSE WAS
FOLLOWED, RESPONDENT PAYING A PART OF THE EXPENSES OF THE TRIP TO
FLORIDA AND OF THE DIVORCE ACTION.  PETITIONER RECEIVED A FLORIDA
DECREE AND A FEW WEEKS LATER, DECEMBER 18, 1943, AGAIN MARRIED
RESPONDENT.  MARITAL DIFFICULTIES DEVELOPED AND PETITIONER SECURED IN
HAWAII A DECREE OF SEPARATION AND MAINTENANCE.  THEREAFTER RESPONDENT
BROUGHT THE PRESENT ACTION IN THE VERMONT COURTS TO HAVE THE MARRIAGES
DECLARED NULL AND VOID.  PETITIONER WAS SERVED BY PUBLICATION AND
APPEARED.  THERE WAS A TRIAL, AFTER WHICH THE WINDSOR COUNTY COURT
GRANTED A JUDGMENT OF ANNULMENT.  IT FOUND THAT UNDER FLORIDA LAW IT
WAS NECESSARY FOR PETITIONER TO HAVE HAD AN INTENTION TO LIVE AND
REMAIN IN FLORIDA, WHICH SHE DID NOT HAVE; THAT SHE TESTIFIED FALSELY
IN THE FLORIDA PROCEEDINGS RESPECTING HER DOMICILE IN FLORIDA; AND THAT
SHE SECURED THE FLORIDA DECREE BY DECEIVING THE FLORIDA COURT AS TO HER
DOMICILE.  THE WINDSOR COUNTY COURT ANNULLED THE MARRIAGE OF FEBRUARY
5, 1943, AND DISMISSED THE PETITION AS RESPECTS THE SECOND MARRIAGE. 
THE SUPREME COURT OF VERMONT AFFIRMED THE JUDGMENT ANNULLING THE FIRST
MARRIAGE BUT REVERSED THE DISMISSAL AS TO THE SECOND MARRIAGE AND HELD
IT ALSO NULL AND VOID.  116 VT. 374, 76 A.2D 593.  THE CASE IS HERE ON
CERTIORARI.  341 U.S. 914. 

ON THIS RECORD WE DO NOT KNOW WHAT HAPPENED IN THE FLORIDA DIVORCE
PROCEEDINGS EXCEPT THAT THE FLORIDA COURT ENTERED A DIVORCE DECREE IN
FAVOR OF PETITIONER AND AGAINST MANN.  SO FAR AS WE KNOW, THE ISSUE OF
DOMICILE WAS CONTESTED, LITIGATED AND RESOLVED IN PETITIONER'S FAVOR. 
IF THE DEFENDANT SPOUSE APPEARED IN THE FLORIDA PROCEEDINGS AND
CONTESTED THE ISSUE OF THE WIFE'S DOMICILE (SHERRER V. SHERRER, 334
U.S. 343) OR APPEARED AND ADMITTED HER FLORIDA DOMICILE (COE V. COE,
334 U.S. 378) OR WAS PERSONALLY SERVED IN THE DIVORCE STATE (JOHNSON V.
MUELBERGER, 340 U.S. 581, 587), HE WOULD BE BARRED FROM ATTACKING THE
DECREE COLLATERALLY; AND SO WOULD A STRANGER TO THE FLORIDA
PROCEEDINGS, SUCH AS RESPONDENT, UNLESS FLORIDA APPLIES A LESS STRICT
RULE OF RES JUDICATA TO THE SECOND HUSBAND THAN IT DOES TO THE FIRST. 
SEE JOHNSON V. MUELBERGER, SUPRA.  ON THE OTHER HAND, IF THE DEFENDANT
SPOUSE HAD NEITHER APPEARED NOR BEEN SERVED IN FLORIDA, THE VERMONT
COURT, UNDER THE RULING IN WILLIAMS V. NORTH CAROLINA, 325 U.S. 226,
COULD REOPEN THE ISSUE OF DOMICILE. 

BUT THE BURDEN OF UNDERMINING THE DECREE OF A SISTER STATE "RESTS
HEAVILY UPON THE ASSAILANT."  WILLIAMS V. NORTH CAROLINA, SUPRA, P.
234; ESENWEIN V. COMMONWEALTH, 325 U.S. 279, 280-281.  A JUDGMENT
PRESUMES JURISDICTION OVER THE SUBJECT MATTER AND OVER THE PERSONS. 
SEE TITUS V. WALLICK, 306 U.S. 282, 287.  AS STATED FOR THE COURT OF
JUSTICE STONE IN ADAM V. SAENGER, 303 U.S. 59, 62, "IF IT APPEARS ON
ITS FACE TO BE A RECORD OF A COURT OF GENERAL JURISDICTION, SUCH
JURISDICTION OVER THE CAUSE AND THE PARTIES IS TO BE PRESUMED UNLESS
DISPROVED BY EXTRINSIC EVIDENCE, OR BY THE RECORD ITSELF." 

THE FLORIDA DECREE IS ENTITLED TO THAT PRESUMPTION.  THAT PRESUMPTION
MAY OF COURSE BE OVERCOME BY SHOWING, FOR EXAMPLE, THAT MANN NEVER WAS
SERVED IN FLORIDA NOR MADE AN APPEARANCE IN THE CASE EITHER GENERALLY
OR SPECIFICALLY TO CONTEST THE JURISDICTIONAL ISSUES.  THE VERMONT
SUPREME COURT RECOGNIZED THAT THERE WERE NO FINDINGS ON THOSE ISSUES IN
THE PRESENT RECORD.  THE COURT IN REFERRING TO THE CASE OF WILLIAMS V.
NORTH CAROLINA, 325 U.S. 226, SAID, "IT WAS THERE HELD THAT THE
QUESTION OF BONA FIDE DOMICILE WAS OPEN TO ATTACK, NOTWITHSTANDING THE
FULL FAITH AND CREDIT CLAUSE WHEN THE OTHER SPOUSE NEITHER HAD APPEARED
NOR BEEN SERVED WITH PROCESS IN THE STATE.  THE FINDINGS HERE DO NOT
SHOW EITHER OF THESE CRITERIA."  116 VT. 374, 378, 76 A.2D 593, 595. 
YET IT IS ESSENTIAL THAT THE COURT KNOW WHAT TRANSPIRED IN FLORIDA
BEFORE THIS COLLATERAL ATTACK ON THE FLORIDA DECREE CAN BE RESOLVED. 
FOR UNTIL FLORIDA'S JURISDICTION IS SHOWN TO BE VULNERABLE, VERMONT MAY
NOT RELITIGATE THE ISSUE OF DOMICILE ON WHICH THE FLORIDA DECREE
RESTS.  IT WAS SAID ON ARGUMENT THAT THE FIRST HUSBAND APPEARED IN THE
FLORIDA PROCEEDING.  BUT THE RECORD DOES NOT CONTAIN THE FLORIDA DECREE
NOR ANY STIPULATION CONCERNING IT. 

WE DEAL ONLY WITH THE PRESUMPTION, NOT WITH THE ISSUES ON WHICH THE
VERMONT COURT MADE ITS FINDINGS.  WE ALSO RESERVE THE QUESTION,
DISCUSSED ON ARGUMENT, WHETHER RESPONDENT WOULD NOW BE IN A POSITION TO
ATTACK THE FLORIDA DECREE COLLATERALLY IF IT WERE FOUND TO BE COLLUSIVE
AND HE PARTICIPATED IN THE FRAUD. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE SUPREME
COURT OF VERMONT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

CONCEDEDLY, WHEN A FLORIDA COURT, ON SEPTEMBER 10, 1943, PURPORTED TO
GRANT A DECREE OF DIVORCE TO THE PETITIONER, THEN MRS. ALBERT MANN, SHE
SECURED THE DECREE "BY DECEIVING THE FLORIDA COURT AS TO THE FACTS OF
HER DOMICILE" IN THAT SHE "WENT TO FLORIDA FOR THE EXPRESS PURPOSE OF
GETTING A DIVORCE" AND WITHOUT ANY "INTENTION TO LIVE AND REMAIN IN
FLORIDA," WHENCE SHE DEPARTED IMMEDIATELY ON SECURING HER DECREE. 
THEREFORE, THE FULL FAITH AND CREDIT CLAUSE DOES NOT REQUIRE VERMONT TO
RESPECT THIS FLORIDA DECREE, UNLESS MR. MANN HAS BEEN SERVED IN FLORIDA
OR HAD PERSONALLY PARTICIPATED IN THE FLORIDA DIVORCE PROCEEDING.  IF
THERE WERE FAIR DOUBT THAT MRS. MANN'S HUSBAND HAD SUBJECTED HIMSELF TO
THE JURISDICTION OF THE FLORIDA DECREE, THE THINGS WHICH IT IMPORTS
WOULD NOT HAVE BEEN UNDERMINED AND VERMONT WOULD HAVE TO RESPECT IT. 

IT IS THE VIEW OF MY BRETHREN THAT THE VERMONT SUPREME COURT HELD THE
FLORIDA DECREE TO BE A NULLITY, ALTHOUGH IT "RECOGNIZED THAT THERE WERE
NO FINDINGS ON THOSE ISSUES IN THE PRESENT RECORD" - THE ISSUES BEING,
WHETHER PETITIONER'S HUSBAND "WAS SERVED IN FLORIDA OR MADE AN
APPEARANCE IN THE CASE."  IF THIS WERE WHAT THE VERMONT SUPREME COURT
"RECOGNIZED" I WOULD JOIN MY BRETHREN.  BUT SO TO READ WHAT THE VERMONT
SUPREME COURT WROTE IS TO MISREAD.  IN ITS OWN VERMONT WAY, THE VERMONT
SUPREME COURT WROTE JUST THE OPPOSITE.  REFERRING TO THE SECOND
WILLIAMS CASE, 325 U.S. 226, THE VERMONT SUPREME COURT WENT ON: 

"IT WAS THERE HELD THAT THE QUESTION OF BONA FIDE DOMICILE WAS OPEN
TO ATTACK, NOTWITHSTANDING THE FULL FAITH AND CREDIT CLAUSE WHEN THE
OTHER SPOUSE NEITHER HAD APPEARED NOR BEEN SERVED WITH PROCESS IN THE
STATE.  THE FINDINGS HERE DO NOT SHOW EITHER OF THESE CRITERIA."  COOK
V. COOK, 116 VT. 374, 378, 76 A.2D 593, 595. 

IN THE LIGHT OF THE WHOLE RECORD, IS NOT THE MEANING OF THIS, HOWEVER
OBLIQUELY EXPRESSED, THAT THE CIRCUMSTANCE WAS WANTING WHICH ALONE
WOULD HAVE GIVEN THE FLORIDA COURT JURISDICTION OVER MRS. MANN'S SUIT,
NAMELY, MR. MANN'S SUBMISSION TO IT?  A FAIR READING OF THIS RECORD
IMPLIES THAT THE FLORIDA DECREE WAS NEITHER CONSENTED TO NOR CONTESTED
BY MANN.  IN SUCH CIRCUMSTANCES, IT WOULD BE FORMALISM OF THE MOST ARID
KIND IF A STATE IN A THIRD-PARTY PROCEEDING MAY DENY FULL FAITH AND
CREDIT TO AN EX PARTE DIVORCE FRAUDULENTLY SECURED BY A SPOUSE IN A
SISTER STATE ONLY IF IT MAKES FORMAL FINDINGS THAT SUCH AN EX PARTE
FRAUDULENT DECREE WAS OBTAINED WITHOUT THE JURISDICTIONAL PARTICIPATION
OF THE HUSBAND. 

IF MRS. MANN DID NOT HAVE A FLORIDA DOMICILE AND HER HUSBAND DID NOT
SUBMIT, UNDER THE SHERRER DOCTRINE, 334 U.S. 343, TO THE STATE'S
JURISDICTION, FLORIDA HAD NO POWER TO TERMINATE THE MARRIAGE.   IF
THERE WAS NO JURISDICTION TO GRANT A DIVORCE, THERE WAS NO DIVORCE. 
THE SHAM DIVORCE WAS A NULLITY, NO MORE BINDING ON THE VERMONT COURTS
THAN WOULD HAVE BEEN A PRIVATE LETTER TO THE LADY BY THE LOCAL FLORIDA
JUDGE.  AND WHILE VERMONT COULD, IF THAT STATE CHOSE, DENY RELIEF TO
COOK BECAUSE OF HIS "UNCLEAN HANDS," THE CONSTITUTION OF THE UNITED
STATES HAS NOTHING TO DO WITH THAT DEFENSE. 

IT IS IMPORTANT TO REMEMBER THAT THROUGHOUT THIS PROCEEDING THE
PETITIONER HERE APPEARED PERSONALLY AND WAS REPRESENTED BY COUNSEL. 
THE FINDINGS OF THE WINDSOR COUNTY COURT WERE BASED ON "A CONSIDERATION
OF THE STATEMENTS OF COUNSEL, ORAL TESTIMONY AND THE EXHIBITS IN THE
CASE."  THE FINDINGS ARE INESCAPABLE THAT THE FLORIDA DECREE WAS A
COOKED-UP AFFAIR NOT BETWEEN MR. AND MRS. MANN BUT BETWEEN MRS. MANN
AND COOK.  "FLORIDA WAS CHOSEN AS THE PLACE WHERE THE DIVORCE WAS TO BE
OBTAINED BECAUSE FLORIDA WOULD BE THE NEAREST AND BEST PLACE TO SECURE
A DIVORCE."  ALL THIS TOOK PLACE TWO MONTHS AFTER MRS. MANN AND COOK
HAD SUPPOSEDLY BEEN MARRIED, WHEN HE DISCOVERED SHE WAS THE WIFE OF
MANN.  THE PRESENT PROCEEDINGS, BEGUN IN DECEMBER, 1949, DID NOT COME
TO ISSUE UNTIL MARCH, 1950, THE FINDINGS OF FACT WERE MADE IN MAY,
1950, AND THE CASE DISPOSED OF BY THE SUPREME COURT OF VERMONT IN
NOVEMBER, 1950.  THE FLORIDA DECREE WAS URGED AS A DEFENSE AGAINST THE
PRAYER FOR A DECLARATION OF ANNULMENT ON TWO GROUNDS, AS ONE READS THE
RECORD, AND TWO GROUNDS ONLY: UNCLEAN HANDS AND CONDONATION - UNCLEAN
HANDS IN THAT COOK COOPERATED WITH MRS. MANN IN DECEIVING THE FLORIDA
COURT AS TO THE FALSITY OF HER DOMICILIARY CLAIM; CONDONATION BY
CONDUCT ON COOK'S PART SUBSEQUENT TO, AND WITH KNOWLEDGE OF, MRS.
MANN'S FRAUDULENTLY OBTAINED DIVORCE DECREE. 

IT IS IMPORTANT TO REMEMBER THAT THE JUDGMENTS OF THE WINDSOR COUNTY
COURT AND OF THE SUPREME COURT OF VERMONT CAME TWO YEARS AFTER THIS
COURT'S DECISIONS IN SHERRER V. SHERRER, SUPRA, AND COE V. COE, 334
U.S. 378.  THESE WERE NOT PUSS-IN-THE-CORNER ADJUDICATIONS.  IT IS
INCONCEIVABLE THAT THE VERMONT COURTS DID NOT KNOW THAT THE FRAUDULENT
CLAIM OF DOMICILE BY A DIVORCING SPOUSE IS IRRELEVANT TO THE
ENFORCEABILITY IN SISTER STATES OF A DECREE OF DIVORCE IF THE OTHER
SPOUSE CONTESTS OR CONSENTS TO THE PROCEEDING LEADING TO THE DECREE. 
WHEN THE SUPREME COURT OF VERMONT IN 1950 FINDS A DECREE OF DIVORCE TO
HAVE BEEN FRAUDULENTLY OBTAINED BY A SPOUSE AND SAYS THAT THERE ARE NO
FINDINGS THAT THE OTHER SPOUSE HAD EITHER APPEARED OR BEEN SERVED WITH
PROCESS, AND REJECTS THE CLAIM THAT THE DIVORCE DECREE MUST BE
RESPECTED BY REASON OF UNCLEAN HANDS OR CONDONATION, PLAINLY PART OF
THE CASE IS THE ASSUMPTION THAT THIS WAS NOT A SHERRER V. SHERRER OR
COE V. COE SITUATION.  AN ISSUE WHICH IS ESTABLISHED BY THE ASSUMPTIONS
IN A LITIGATION IS AS TRULY ESTABLISHED AS THOUGH PUT INTO WORDS. 

IN VIEW OF WHAT THIS RECORD DISCLOSES - THE EXPLICIT FINDINGS AS TO
THE FRAUDULENTLY PREARRANGED DIVORCE FROM THE HUSBAND BETWEEN A WIFE
AND HER PUTATIVE HUSBAND, THE ISSUES THAT WERE TENDERED IN THE
PERSONALLY CONTESTED PROCEEDING FOR ANNULMENT OF MARRIAGE BY THE
DISILLUSIONED THIRD PARTY, THE CHARGES OF UNCLEAN HANDS AND CONDONATION
AS GROUNDS ON WHICH THE WIFE SOUGHT TO RELY ON THE DIVORCE, THE ONLY
ISSUES THUS TENDERED TO THE VERMONT COURTS AND THEIR DISPOSITION TWO
YEARS AFTER SHERRER V. SHERRER AND COE V. COE - TO HOLD THAT THERE MUST
BE A FINDING IN EXPLICIT WORDS THAT MANN DID NOT APPEAR IN THE FLORIDA
PROCEEDINGS IS TO GO BACK TO THE DAYS ANTEDATING BARON PARKE, WHEN
CERTAIN WORDS IN THE LAW WERE INDISPENSABLE.  NOT TO USE THEM WAS
FATAL.  THE FLORIDA DECREE IS NOT SET FORTH IN THE RECORD BEFORE US.
FOR ALL WE KNOW, THE DECREE MAY RECITE THE NON-APPEARANCE OF MANN.  AND
YET THE VERMONT SUPREME COURT IS REVERSED ON THE UNWARRANTED
PRESUMPTION THAT MANN APPEARED IN THE FLORIDA SUIT. 

THE CASE NOW GOES BACK TO VERMONT.  IT WOULD NOT BE SUPRISING IF, IN
THE PROCEEDINGS TO FOLLOW, IT WILL BE FORMALLY ESTABLISHED THAT
INASMUCH AS MANN WAS NEITHER SERVED NOR APPEARED IN FLORIDA THE DECREE
WAS A NULLITY, TO WHICH THE CONSTITUTION OF THE UNITED STATES DOES NOT
REQUIRE OBEDIENCE FROM VERMONT.  I AM NOT ONE OF THOSE WHO THINK THAT
PROCEDURE IS JUST FOLDEROL OR NOXIOUS MOSS.  PROCEDURE - THE FAIR,
ORDERLY AND DELIBERATIVE METHOD BY WHICH CLAIMS ARE TO BE LITIGATED -
GOES TO THE VERY SUBSTANCE OF LAW.  BUT TO DENY THE MEANING OF WHAT
LIES ON THE SURFACE OF A RECORD SIMPLY BECAUSE IT IS INEPTLY CONVEYED
IS TO REVERT TO ARCHAISMS AND NOT TO RESPECT ESSENTIALS. 
..END :




















SUTTON V. LEIB 342 U.S. 402 


NO. 143.  SUBMITTED DECEMBER 3, 1951.  - DECIDED MARCH 3, 1952.  - 188
F.2D 766, REVERSED. 


ASSERTING DIVERSITY JURISDICTION, PETITIONER BROUGHT SUIT IN A FEDERAL
DISTRICT COURT IN ILLINOIS TO RECOVER ALIMONY UNDER AN ILLINOIS DIVORCE
DECREE WHICH AWARDED HER ALIMONY UNTIL REMARRIAGE.  SUBSEQUENT TO THE
ILLINOIS DIVORCE, PETITIONER REMARRIED IN NEVADA, BUT THE MARRIAGE WAS
LATER ANNULLED IN NEW YORK ON THE GROUND THAT THE MAN SHE MARRIED IN
NEVADA WAS ALREADY MARRIED IN NEW YORK AND HIS NEVADA DIVORCE FROM HIS
FIRST WIFE WAS INVALID.  HELD: 

1.  THE LIABILITY OF THE DEFENDANT IN THIS CASE IS GOVERNED BY THE
STATE LAW OF ILLINOIS, ALTHOUGH THE DECISION OF FEDERAL CONSTITUTIONAL
ISSUES INVOLVED RESTS FINALLY ON THIS COURT.  P. 406. 

2.  UPON THE FACTS OF THIS CASE, THE NEW YORK ANNULMENT OF THE NEVADA
MARRIAGE MUST BE ACCORDED FULL FAITH AND CREDIT IN ILLINOIS.  PP. 406
409. 

(A)  THE NEVADA DECREE DIVORCING PETITIONER'S SECOND HUSBAND FROM HIS
FIRST WIFE, WHO WAS NOT PERSONALLY SERVED IN NEVADA AND ENTERED NO
APPEARANCE THERE, WAS SUBJECT TO ATTACK AND NULLIFICATION IN NEW YORK
FOR LACK OF JURISDICTION OVER THE PARTIES IN A CONTESTED ACTION.  PP.
408-409. 

3.  THE QUESTION OF THE EFFECT OF THE NEVADA MARRIAGE AND THE NEW
YORK ANNULMENT ON THE OBLIGATION OF THE DEFENDANT IN THE ALIMONY SUIT
MUST BE DETERMINED UNDER ILLINOIS LAW.  PP. 409-412. 

(A)  AS A MATTER OF CONSTITUTIONAL LAW, ILLINOIS IS FREE TO DECIDE
FOR ITSELF THE EFFECT OF NEW YORK'S DECLARATION OF ANNULMENT ON THE
OBLIGATIONS OF PETITIONER'S FIRST HUSBAND, A STRANGER TO THE NEW YORK
DECREE.  P. 410. 

(B)  THE JURISDICTION OF THE FEDERAL COURT IN THIS CASE RESTS ON
DIVERSITY OF CITIZENSHIP; THE CASE DOES NOT PRESENT ANY NON-FEDERAL
ISSUE SUITABLE FOR SEPARATION AND DETERMINATION IN THE STATE COURTS;
AND THE REMAINING QUESTIONS OF STATE LAW SHOULD BE DECIDED BY THE
FEDERAL COURTS.  P. 410. 

4.  THE COURT OF APPEALS' RULING THAT, IN THE CIRCUMSTANCES OF THIS
CASE, THERE WAS NO COMPROMISE OF A DISPUTED CLAIM, IS ACCEPTED HERE. 
P. 411. 

SUTTON V. LEIB. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN A DIVERSITY SUIT TO RECOVER UNPAID INSTALLMENTS OF ALIMONY, THE
DISTRICT COURT RENDERED SUMMARY JUDGMENT FOR THE DEFENDANT.  THE COURT
OF APPEALS AFFIRMED.  188 F.2D 766.  THIS COURT GRANTED CERTIORARI. 
342 U.S. 846.  REVERSED AND REMANDED, P. 412. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

BY REASON OF A DIVORCE IN AN ILLINOIS STATE COURT, WITH A JUDGMENT
FOR MONTHLY INSTALLMENTS OF ALIMONY UNTIL REMARRIAGE, PETITIONER
ASSERTS THAT HER DIVORCED HUSBAND, THE RESPONDENT LEIB, IS LIABLE FOR
UNPAID INSTALLMENTS OF ALIMONY.  ASSERTING DIVERSITY JURISDICTION,
PETITIONER, A DIVORCEE, FILED SUIT IN THE UNITED STATES DICTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS.  CLAIM FOR RECOVERY IS MADE,
NOTWITHSTANDING A LATER MARRIAGE BY PETITIONER TO ANOTHER IN NEVADA,
SUBSEQUENTLY ANNULLED IN NEW YORK, FOR THE PERIOD FROM THE NEVADA
REMARRIAGE TO HER THIRD PRESUMABLY VALID MARRIAGE IN NEW YORK TO A
THIRD MAN.  TO RESPONDENT'S PLEA THAT THE ILLINOIS ALIMONY OBLIGATION
WAS FINALLY ENDED BY THE NEVADA REMARRIAGE OF PETITIONER, MRS. SUTTON
RELIED UPON THE NEW YORK ANNULMENT DECREE AS DETERMINING THAT HER
NEVADA MARRIAGE WAS VOID.  SHE CONTENDS THAT THE FULL FAITH AND CREDIT
CLAUSE OF THE FEDERAL CONSTITUTION REQUIRES THAT ILLINOIS HOLD HER
NEVADA MARRIAGE VOID AB INITIO BY VIRTUE OF THE NEW YORK ANNULMENT;
(FN1) THAT AS THE ANNULMENT DECREE OBLITERATES THE EXISTENCE OF HER
NEVADA MARRIAGE RESPONDENT IS LIABLE FOR UNPAID ALIMONY UNTIL HER NEW
YORK MARRIAGE TO SUTTON. 

THE TRIAL COURT RENDERED SUMMARY JUDGMENT FOR RESPONDENT AND THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED.  188 F.2D 766.  THE
AFFIRMANCE WAS BOTTOMED ON THE CONCLUSION THAT, AS THE NEVADA MARRIAGE
OF PETITIONER WAS VALID IN NEVADA, IT TERMINATED THE LIABILITY FOR
ALIMONY UNDER THE ILLINOIS JUDGMENT OF DIVORCE.  THE COURT THUS GAVE
FULL FAITH AND CREDIT TO THE NEVADA MARRIAGE RATHER THAN THE NEW YORK
ANNULMENT.  (FN2)  BECAUSE DISPOSITION OF THIS CASE REQUIRED TREATMENT
OF AN IMPORTANT QUESTION OF FEDERAL LAW, REVIEW WAS GRANTED ON A WRIT
OF CERTIORARI.  342 U.S. 846. 

FACTS.  PETITIONER, VERNA SUTTON, DIVORCED RESPONDENT, LEIB, IN
ILLINOIS IN 1939, AND UNDER THE TERMS OF THE DECREE OF DIVORCE WAS
AWARDED $125 "ON OR BEFORE THE FIRST DAY OF EACH CALENDAR MONTH ...
FOR SO LONG AS THE PLAINTIFF SHALL REMAIN UNMARRIED, OR FOR SO LONG AS
THIS DECREE REMAINS IN FULL FORCE AND EFFECT."  ON JULY 3, 1944, IN
RENO, NEVADA, PETITIONER MARRIED WALTER HENZEL WHO HAD THAT DAY
OBTAINED A NEVADA DIVORCE FROM DOROTHY HENZEL, A RESIDENT OF NEW YORK
WHO HAD NOT BEEN SERVED IN NEVADA AND WHO MADE NO APPEARANCE THERE. 
ONE MONTH LATER, AUGUST 3, 1944, DOROTHY HENZEL BROUGHT A SEPARATE
MAINTENANCE PROCEEDING IN THE COURTS OF NEW YORK.  WALTER HENZEL
DEFENDED THIS SUIT.  THE PROCEEDING RESULTED IN A DECREE IN DOROTHY
HENZEL'S FAVOR, DECLARING WALTER HENZEL'S NEVADA DIVORCE FROM HER "NULL
AND VOID."  WITH THE SERVICE OF DOROTHY'S PROCESS ON WALTER, PETITIONER
CEASED LIVING WITH HIM AND IN JANUARY 1945 FILED SUIT IN NEW YORK FOR
ANNULMENT OF HER MARRIAGE TO HIM.  IN THIS PROCEEDING WALTER HENZEL
ALSO APPEARED.  ON JUNE 6, 1947, THE NEW YORK COURT ENTERED AN
INTERLOCUTORY DECREE AFTER TRIAL WHICH BECAME FINAL THREE MONTHS
THEREAFTER.  THIS JUDGMENT DECLARED THAT PETITIONER'S MARRIAGE TO
HENZEL WAS "NULL AND VOID" FOR THE REASON THAT HE "HAD ANOTHER WIFE
LIVING AT THE TIME OF SAID MARRIAGE." 

THERE WAS NO APPEAL IN NEVADA FROM THE NEVADA DIVORCE OF THE
HENZELS.  NO FURTHER ACTION WAS TAKEN IN NEVADA CONCERNING THE MARRIAGE
OF HENZEL AND PETITIONER, AND NO APPEAL TAKEN IN NEW YORK FROM THE
JUDGMENT HOLDING THE HENZEL'S NEVADA DIVORCE NULL AND VOID OR FROM THE
JUDGMENT ANNULLING THE NEVADA MARRIAGE OF HENZEL AND PETITIONER.  THE
JURISDICTION OF THE NEW YORK COURTS TO ENTER THE JUDGMENTS IS
UNQUESTIONED. 

ANALYSIS OF ISSUES.  COLLECTION OF ALIMONY IS SOUGHT AGAINST
RESPONDENT WHO WAS NOT A PARTY TO ANY OF THE JUDICIAL PROCEEDINGS IN
NEVADA OR NEW YORK AND APPEARS IN NONE OF THE RECORDS FROM EITHER
STATE.  ILLINOIS LAW AS TO REPONDENT'S LIABILITY GOVERNS THE FEDERAL
COURT'S DECISION OF THIS CASE.  (FN3)  BUT THE RESPONSIBILITY FOR THE
DECISION OF FEDERAL CONSTITUTIONAL ISSUES INVOLVED RESTS FINALLY ON
THIS COURT.  (FN4)  THIS CONTROVERSY PRESENTS, FUNDAMENTALLY, A PROBLEM
OF ILLINOIS LAW, TO WIT, THE ILLINOIS RULE AS TO THE EFFECT OF A
SUBSEQUENTLY ANNULLED SECOND MARRIAGE ON THE ALIMONY PROVISIONS OF AN
ILLINOIS DIVORCE AWARDING SUPPORT UNTIL REMARRIAGE. 

AS THE FULL FAITH AND CREDIT CLAUSE REQUIRES ILLINOIS TO RECOGNIZE
THE VALIDITY OF RECORDS AND JUDICIAL PROCEEDINGS OF SISTER STATES, THE
CONCLUSION WILL NOT VARY BECAUSE THE POST-DIVORCE RECORDED EVENTS
UNDERLYING THIS LITIGATION TOOK PLACE IN OTHER STATES THAN ILLINOIS. 
THIS IS NOT AN ALLEGED CONFLICT OF DECISIONS BETWEEN STATES SUCH AS
EXISTED IN CERTAIN TAX AND ESTATE CASES.  (FN5)  RATHER THE SITUATION
MORE NEARLY APPROACHES BARBER V. BARBER, 323 U.S. 77.  THERE TENNESSEE
REFUSED FULL FAITH AND CREDIT TO A NORTH CAROLINA JUDGMENT FOR ARREARS
OF ALIMONY ON THE GROUND OF ITS LACK OF FINALITY IN NORTH CAROLINA.  WE
REVERSED TENNESSEE'S DECISION, NOT ON THE GROUND OF ERROR IN TENNESSEE
RULES OF LAW BUT ON OUR DETERMINATION THAT THE NORTH CAROLINA JUDGMENT
WAS FINAL AND THEREFORE ENFORCEABLE AS A MATTER OF FEDERAL LAW IN
TENNESSEE UNDER THE FULL FAITH AND CREDIT CLAUSE.  SO IN THIS CASE,
ILLINOIS' CONCLUSION AS TO THIS CLAIM FOR ALIMONY MUST BE REACHED UNDER
ILLINOIS LAW ON THE BASIS OF GIVING THE VARIOUS PROCEEDINGS THE EFFECT
TO WHICH THE CONSTITUTION ENTITLES THEM.  IN THIS WAY THE FULL FAITH
AND CREDIT CLAUSE PERFORMS ITS INTENDED FUNCTION OF AVOIDING
RELITIGATION IN OTHER STATES OF ADJUDICATED ISSUES, WHILE LEAVING TO
THE LAW OF THE FORUM STATE THE APPLICATION OF THE PREDETERMINED FACTS
TO THE NEW PROBLEM.  RILEY V. NEW YORK TRUST CO., 315 U.S. 343, 348
349. 

LEGAL EFFECT OF NEVADA AND NEW YORK EVENTS.  PETITIONER AND HENZEL
WERE MARRIED IN NEVADA.  THEREAFTER PETITIONER BROUGHT HER PUTATIVE
HUSBAND BEFORE THE NEW YORK COURT.  PETITIONER AND HENZEL SUBJECTED
THEMSELVES TO THE JURISDICTION OF THE NEW YORK COURT AND ITS DECREE
ANNULLING THEIR NEVADA MARRIAGE WAS ENTERED WITH JURISDICTION, SO FAR
AS THIS RECORD SHOWS, OF THE PARTIES AND THE SUBJECT MATTER.  THE
BURDEN IS UPON ONE ATTACKING THE VALIDITY OF A JUDGMENT TO DEMONSTRATE
ITS INVALIDITY.  (FN6)  THAT JUDGMENT IS RES JUDICATA BETWEEN THE
PARTIES AND IS UNASSAILABLE COLLATERALLY.  (FN7) AS BOTH PARTIES WERE
BEFORE THE NEW YORK COURT, ITS DECREE OF ANNULMENT OF THEIR NEVADA
MARRIAGE CEREMONY IS EFFECTIVE TO DETERMINE THAT THE MARRIAGE
RELATIONSHIP OF PETITIONER AND HENZEL DID NOT EXIST AT THE TIME OF
FILING THE PRESENT COMPLAINT IN ILLINOIS FOR UNPAID ALIMONY.  THE
EFFECT IN ILLINOIS OF THE NEW YORK DECLARATION OF NULLITY OF THE
OBLIGATION FOR ALIMONY IS A MATTER OF ILLINOIS LAW HEREINAFTER
TREATED.  THE NEW YORK ANNULMENT DETERMINES THE MARRIAGE RELATIONSHIP
THAT IS THE MARITAL STATUS OF PETITIONER AND HENZEL, JUST AS ANY
DIVORCE JUDGMENT DETERMINES SUCH RELATIONSHIP.  IF THE NEVADA COURT HAD
HAD JURISDICTION BY PERSONAL SERVICE IN THE STATE OR APPEARANCE IN THE
CASE OF HENZEL AND THE FIRST MRS. HENZEL, ITS DECREE OF DIVORCE WOULD
HAVE BEEN UNASSAILABLE IN OTHER STATES.  (FN8)  SO AS TO THE NEW YORK
DECREE ANNULLING THE MARRIAGE, NEW YORK HAD SUCH JURISDICTION OF THE
PARTIES AND ITS DECREE IS ENTITLED TO FULL FAITH THROUGHOUT THE NATION,
IN NEVADA AS WELL AS IN ILLINOIS.  (FN9) 

THE NEW YORK INVALIDATION OF THE NEVADA DIVORCE OF THE HENZELS STANDS
IN THE SAME POSITION.  AS MRS. HENZEL WAS NEITHER PERSONALLY SERVED IN
NEVADA NOR ENTERED HER APPEARANCE, THE NEVADA DIVORCE DECREE WAS
SUBJECT TO ATTACK AND NULLIFICATION IN NEW YORK FOR LACK OF
JURISDICTION OVER THE PARTIES IN A CONTESTED ACTION.  (FN10) 

THIS LEADS US TO HOLD THAT THE CONCLUSION OF THE COURT OF APPEALS
QUOTED IN NOTE 2, SUPRA, IS INCORRECT UNDER THE FACTS OF THIS CASE. 
THE MARRIAGE CEREMONY PERFORMED FOR PETITIONER AND HENZEL IN NEVADA
MUST BE HELD INVALID BECAUSE THEN HENZEL HAD A LIVING WIFE.  THE NEW
YORK ANNULMENT HELD THE NEVADA MARRIAGE VOID.  NEVADA DECLARES BIGAMOUS
MARRIAGES VOID.  (FN11) 

CONCLUSION.  THE DETERMINATION THAT THE NEW YORK ADJUDICATIONS MUST
BE GIVEN FULL FAITH AND CREDIT IN ILLINOIS, HOWEVER, DOES NOT DECIDE
THIS CONTROVERSY.  ALTHOUGH THE FEDERAL COURTS MUST GIVE THE SAME FORCE
AND EFFECT TO THE NEW YORK DECREES AS ILLINOIS DOES, (FN12) A QUESTION
OF STATE LAW REMAINS.  DOES ILLINOIS GIVE THE MARRIAGE CEREMONY OF AN
ANNULLED MARRIAGE SUFFICIENT VITALITY TO RELEASE LEIB, THE RESPONDENT,
FROM HIS OBLIGATION TO PAY ALIMONY SUBSEQUENTLY DUE? 

FULL FAITH TO THE NEW YORK ANNULMENT, WHICH IS CONCLUSIVE EVERYWHERE
AS TO THE MARRIAGE STATUS OF PETITIONER AND HENZEL, COMPELS ILLINOIS TO
TREAT THEIR NEVADA MARRIAGE CEREMONY AS VOID.  (FN13) THE FORCE OF THAT
RULE, HOWEVER, DOES NOT REQUIRE THAT THE EFFECT OF THE NEW YORK
ANNULMENT ON RIGHTS INCIDENT TO THIS DECLARATION OF THE INVALIDITY OF
THE NEVADA MARRIAGE CEREMONY SHALL BE THE SAME IN ALL STATES. 
ANNULMENT IS, IN RESPECT TO ITS EFFECT, ANALOGOUS TO DIVORCE.  A VALID
DIVORCE, ONE SPOUSE APPEARING ONLY BY CONSTRUCTIVE SERVICE, THAT FREES
THE PARTIES FROM THE BONDS OF MATRIMONY THROUGHOUT THE UNITED STATES
DOES NOT REQUIRE A SECOND STATE TO ACCORD ITS TERMS THE SAME RESULT IN
LITIGATION OVER SEPARABLE LEGAL RIGHTS AS THE DECREE WOULD HAVE IN THE
COURTS OF THE STATE ENTERING THE DECREE.  (FN14)  WITHOUT REFERENCE TO
THE EFFECT OF A DIVORCE ON INCIDENTS OF THE MARRIAGE RELATION WHERE
BOTH SPOUSES ARE ACTUALLY BEFORE THE COURT, WE THINK IT EQUALLY CLEAR,
AS A MATTER OF CONSTITUTIONAL LAW, THAT ILLINOIS IS FREE TO DECIDE FOR
ITSELF THE EFFECT OF NEW YORK'S DECLARATION OF ANNULMENT ON THE
OBLIGATIONS OF RESPONDENT, A STRANGER TO THAT DECREE. 

ALTHOUGH THE PRESENT PROCEEDING NECESSARILY PRESENTS QUESTIONS OF
STATE LAW, RESTING AS IT DOES UPON DIVERSITY JURISDICTION, THE CASE
DOES NOT PRESENT ANY NON-FEDERAL ISSUE SUITABLE FOR SEPARATION AND
DETERMINATION IN THE STATE COURTS.  (FN15)  THE REMAINING MATTERS OF
STATE LAW ARE FOR THE DECISION OF THE FEDERAL COURTS.  (FN16) 

IT IS FREQUENTLY SAID, AS A LEGAL FICTION, THAT ANNULMENT MAKES THE
ANNULLED MARRIAGE CEREMONY AS THOUGH IT HAD NEVER OCCURRED.  THAT
FICTION IS VARIOUSLY TREATED IN DIFFERENT JURISDICTIONS.  (FN17)  FOR
EXAMPLE IN NEW YORK, THE PETITIONER APPARENTLY WOULD RECOVER ALIMONY
AFTER ANNULMENT BUT NOT FOR THE PERIOD BETWEEN THE REMARRIAGE CEREMONY
AND THE ANNULMENT.  (FN18) 

THE COURT OF APPEALS OF THE SEVENTH CIRCUIT HAS DECLARED ON AN ISSUE
AS TO WHETHER THE PETITIONER'S CLAIM FOR ALIMONY HAD BEEN ADJUSTED THAT
THERE HAS BEEN IN THIS CONTROVERSY NO COMPROMISE OF A DISPUTED CLAIM. 
SEE NOTE 15, SUPRA.  WE ACCEPT THAT RULING.  THAT COURT HAS NOT HAD
OCCASION TO CONSIDER THE EFFECT OF THE ANNULMENT UNDER THE LAW OF
ILLINOIS ON THE RESPONDENT'S ALIMONY OBLIGATION. 

WHERE THERE HAD BEEN A VALID FOREIGN MARRIAGE, FOLLOWED BY AN
ANNULMENT, BASED PARTLY ON ISSUES NOT HERE INVOLVED, ILLINOIS HAS HELD
THAT THE OBLIGATION OF A FORMER HUSBAND TO PAY ALIMONY UNTIL THE WIFE
"REMARRY" IS TERMINATED BY THE REMARRIAGE.  (FN19)  WHAT THE ILLINOIS
RULE IS WHEN THE FOREIGN (NEVADA) MARRIAGE IS JUDICIALLY DECLARED
INVALID, UNDER PRESENT CIRCUMSTANCES, OR WHETHER RESPONDENT, IF LIABLE
AT ALL, IS LIABLE FOR THE PERIOD DURING WHICH HENZEL MAY HAVE OWED
SUPPORT UNDER A RULE SUCH AS THAT OF SLEICHER V. SLEICHER, 251 N.Y.
366, 167 N.E. 501, HAS NOT, SO FAR AS WE KNOW, BEEN DETERMINED. 

THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE REVERSED AND THE CAUSE
REMANDED TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  "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."  U.S. CONSTITUTION, ART. IV, SEC. 1. 

PURSUANT TO THE SECTION, CONGRESS EARLY PRESCRIBED THE EFFECT
SUBSTANTIALLY IN THE WORDS NOW USED:

"SUCH ACTS, RECORDS AND JUDICIAL PROCEEDINGS OR COPIES THEREOF, SO
AUTHENTICATED, 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."  28 U.S.C. SEC. 1738. 

FN2  "WE HAVE SEARCHED THE NUMEROUS CASES DECIDED BY THE SUPREME
COURT OF THE UNITED STATES ON THE SUBJECT OF MIGRATORY DIVORCE FOR A
DEFINITIVE HOLDING AS TO THE JUDICIAL STATUS OF SUCH DIVORCE IN THE
STATE THAT DECREED IT.  IT APPEARS TO BE ASSUMED THAT THE DECREE IS
VALID AND BINDING IN THE STATE WHERE IT IS RENDERED.  THUS MR. JUSTICE
FRANKFURTER REMARKS IN HIS CONCURRING OPINION, WILLIAMS V. NORTH
CAROLINA, 317 U.S. 287, 307,  ...  'IT IS INDISPUTABLE THAT THE NEVADA
DECREES HERE, LIKE THE CONNECTICUT DECREE IN THE HADDOCK  ...  CASE,
...  WERE VALID AND BINDING IN THE STATE WHERE THEY WERE RENDERED.' 
AND MR. JUSTICE MURPHY, CONCURRING IN WILLIAMS V. STATE OF NORTH
CAROLINA, 325 U.S. 266, 239,  ...  STATES THAT "THE STATE OF NEVADA HAS
UNQUESTIONED AUTHORITY, CONSISTENT WITH PROCEDURAL DUE PROCESS, TO
GRANT DIVORCES ON WHATEVER BASIS IT SEES FIT TO ALL WHO MEET ITS
STATUTORY REQUIREMENTS.  IT IS ENTITLED, MOREOVER, TO GIVE TO ITS
DIVORCE DECREES ABSOLUTE AND BINDING FINALITY WITHIN THE CONFINES OF
ITS BORDERS.'  AND MR. JUSTICE RUTLEDGE, DISSENTING IN THE SAME CASE,
325 U.S. AT PAGE 244,  ...  COMMENTS ON THE FACT THAT THE NEVADA
JUDGMENT WAS NOT VOIDED BY THE DECISION.  'IT COULD NOT BE, IF THE SAME
TEST APPLIES TO SUSTAIN IT AS UPHOLDS THE NORTH CAROLINA CONVICTIONS. 
IT STANDS, WITH THE MARRIAGES FOUNDED UPON IT, UMIMPEACHED.'  HE AND
MR. JUSTICE BLACK, ALSO DISSENTING, BOTH CALL ATTENTION TO THE FACT
THAT THE COURT, IN ITS DECISION, DOES NOT HOLD THAT THE NEVADA JUDGMENT
IS INVALID IN NEVADA.  HENCE, IN SPITE OF THE ABSENCE OF A CLEAR-CUT
STATEMENT IN ANY OF THE MAIN OPINIONS OF THE COURT AS TO THE STATUS OF
THE NEVADA DECREE IN NEVADA AFTER SUCCESSFUL EXTRATERRITORIAL CHALLENGE
OF IT, WE THINK WE MAY SPELL OUT AUTHORITY FOR OUR ASSUMPTION THAT IT
SURVIVES SUCH CHALLENGE AND REMAINS IN FULL FORCE AND EFFECT WITHIN THE
CONFINES OF THE STATE OF NEVADA UNTIL AND UNLESS IT IS SET ASIDE UPON
REVIEW IN THAT STATE. 

"ASSUMING THE VALIDITY OF THE DIVORCE IN NEVADA, THEN THE PARTY OR
PARTIES THERETO RESUMED FULL MARITAL CAPACITY IN THAT STATE.  IT
FOLLOWS THAT, SO FAR AS THE STATE OF NEVADA IS CONCERNED, THERE WAS NO
INHIBITION AGAINST THE REMARRIAGE OF WALTER HENZEL IN THAT STATE, AND
NO REASON APPEARS FOR CHALLENGING HIS MARRIAGE THERE TO PLAINTIFF
IMMEDIATELY AFTER THE DECREE OF DIVORCE WAS RENDERED.  UNDER THE TERMS
OF THE ILLINOIS DECREE OF DIVORCE OF PLAINTIFF AND DEFENDANT, SUCH
MARRIAGE IMMEDIATELY TERMINATED THE OBLIGATION OF THE LATTER TO
CONTINUE THE ALIMONY PAYMENTS REQUIRED THEREBY.  WE THINK THAT
OBLIGATION WAS NOT REINSTATED AND REVIVED BY THE SUBSEQUENT ANNULMENT
OF THE NEVADA MARRIAGE IN NEW YORK."  188 F.2D AT 768. 

FN3 ERIE R. CO. V. TOMPKINS, 304 U.S. 64; ANGEL V. BULLINGTON, 330
U.S. 183. 

FN4  BARBER V. BARBER, 323 U.S. 77, 81. 

FN5 WORCESTER COUNTY CO. V. RILEY, 302 U.S. 292, AND CASES CITED.  IN
THIS CASE THIS COURT HELD, P. 299, AS A BASIS THAT THE ACTION WAS
AGAINST A STATE WITHOUT ITS CONSENT, THAT THE FULL FAITH AND CREDIT
CLAUSE DOES NOT REQUIRE UNIFORMITY OF DECISION AS TO DOMICILE BETWEEN
THE COURTS OF DIFFERENT STATES.  CF. TEXAS V. FLORIDA, 306 U.S. 398,
410. 

RILEY V. NEW YORK TRUST CO., 315 U.S. 343.  IN THIS CASE GEORGIA HAD
DETERMINED THAT DECEDENT'S DOMICILE WAS GEORGIA.  NEW YORK HAD
DETERMINED THE DOMICILE WAS NEW YORK.  IN AN INTERPLEADER SUIT IN
DELAWARE, INVOLVING THE TRANSFER OF STOCK OF A DELAWARE CORPORATION TO
ONE OF THE TWO PERSONAL REPRESENTATIVES OF DECEDENT APPOINTED BY THE
RESPECTIVE STATES, THIS COURT HELD, WHERE NEITHER PERSONAL
REPRESENTATIVE HAD BEEN A PARTY TO THE DETERMINATION OF DOMICILE IN THE
STATE OF THE OTHER, DELAWARE WAS FREE TO DETERMINE THE QUESTION OF
DOMICILE AND REQUIRE DELIVERY OF THE STOCK TO THAT REPRESENTATIVE. 

FN6  BARBER V. BARBER, SUPRA, 86; COOK V. COOK, 342 U.S. 126, 128. 

FN7  TREINIES V. SUNSHINE MINING CO., 308 U.S. 66, 76-78. 

FN8  SHERRER V. SHERRER, 334 U.S. 343. 

FN9  TREINIES V. SUNSHINE MINING CO., SUPRA; MILLIKEN V. MEYER, 311
U.S. 457, 462. 

FN10  COOK V. COOK, SUPRA, CITING WILLIAMS V. NORTH CAROLINA, 325
U.S. 226; RICE V. RICE, 336 U.S. 674.  CF. SHERRER V. SHERRER, SUPRA.

FN11  NEV. COMP. LAWS, 1929, SEC. 4066; POUPART V. DISTRICT COURT, 34
NEV. 336, 123 P. 769. 

FN12  SEE NOTE 1, AND UNION & PLANTERS' BANK V. MEMPHIS, 189 U.S. 71,
75. 

FN13  WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 291-304. 

FN14  ESTIN V. ESTIN, 334 U.S. 541.  SEE MACKAY V. MACKAY, 279 APP.
DIV. 350, 110 N.Y.S.2D 82. 

FN15  PROPPER V. CLARK, 337 U.S. 472, 489, ET SEQ., AND CASES CITED. 

FURTHERMORE THE COURT OF APPEALS HAS ALREADY DETERMINED THAT CERTAIN
PAYMENTS OF ALIMONY MADE TO PETITIONER BY RESPONDENT IN SETTLEMENT OF
INSTALLMENTS ACCRUING PRIOR TO THE NEVADA MARRIAGE DO NOT AMOUNT TO A
COMPROMISE OF THE DISPUTED CLAIM.  188 F.2D AT 767-768.  CF. MOORE V.
SHOOK, 276 ILL. 47, 55, 114 N.E. 592; DARST V. LANGE, 367 ILL. 119, 10
N.E.2D 659. 

FN16  MEREDITH V. WINTER HAVEN, 320 U.S. 228; PROPPER V. CLARK,
SUPRA, 486. 

FN17  IN RE WOMBWELL'S SETTLEMENT, (1922) 2 CH. 298.  HERE A MARRIAGE
SETTLEMENT WAS IN TRUST FOR THE SETTLOR "UNTIL THE SAID INTENDED
MARRIAGE" AND THEREAFTER ON DECLARED TRUSTS FOR THE SPOUSES.  THE
MARRIAGE WAS ANNULLED.  THE SETTLOR WAS HELD ENTITLED TO THE FUNDS AS A
VALID MARRIAGE WAS INTENDED AND THIS ONE WAS VOID AB INITIO.  LIKEWISE
CHAPMAN V. BRADLEY, 33 L.J. CH. 139.  CF. IN RE GARNETT, 74 L.J. CH.
570; BISHOP V. SMITH, 1 VICT.  L.R. 313; P. V. P., (1916) 2 I.R. 400. 

SEE VERNIER, AMERICAN FAMILY LAWS, SEC. 53, SUITS TO ANNUL - EFFECT
OF JUDGMENT, AND SEC. 48, ISSUE OF PROHIBITED MARRIAGES (THIS INCLUDES
ANNULMENT). 

NEW YORK DECLARES SOME MARRIAGES VOID FROM THE TIME THEIR NULLITY IS
DECLARED.  MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK, BOOK 14, DOMESTIC
RELATIONS LAW, SEC. 7. 

FOR EFFECT ON DIFFERENT INCIDENTS, SEE HENNEGER V. LOMAS, 145 IND.
287, 44 N.E. 462 (SEDUCTION, TORT); BURNEY V. STATE, 111 TEX. CR. R.
599, 13 S.W.2D 375 (SEDUCTION, CRIMINAL); MILLER V. WALL, 216 ALA. 448,
113 SO. 501 (MARRIAGE, LATER ANNULLED, HELD ANNULMENT DID NOT POSTPONE
DISTRIBUTION OF ESTATE, DISTRIBUTABLE MARRIAGE); DEEDS V. STRODE, 6
IDAHO 317, 55 P. 656 (CIVIL ACTION); FIGONI V. FIGONI, 211 CAL. 354,
295 P.2D 339 (DISTRIBUTION OF COMMUNITY PROPERTY). 

FN18  THIS AVOIDS DOUBLE SUPPORT TO THE WIFE.  SLEICHER V. SLEICHER,
251 N.Y. 366, 167 N.E. 501.  SEE FRANK V. CARTER, 219 N.Y. 35, 113 N.E.
549 (HUSBAND LIABLE FOR NECESSARIES PRIOR TO ANNULMENT); IN THE MATTER
OF MONCRIEF, 235 N.Y. 390, 139 N.E. 550 (CHILD OF ANNULLED MARRIAGE,
ILLEGITIMATE). 

THE SLEICHER CASE CALLED FORTH MANY COMMENTS WHEN IT WAS HANDED
DOWN.  SEE 43 HARV. L. REV.  109; 30 COL. L. REV. 877; 25 ILL. L. REV.
99; 14 MINN. L. REV. 93; 39 YALE L.J. 133. 

FN19  LEHMANN V. LEHMANN, 225 ILL. APP. 513, SAYING: 

"WE THINK THAT SAID WORDS AS SO USED WERE INTENDED BY THE PARTIES TO
REFER TO THE CEREMONY OR ACT OF MARRIAGE AS DISTINGUISHED FROM THE
STATUS OR RELATION THEREAFTER."  P. 522. 

"EVEN THOUGH IT BE CONSIDERED THAT SUCH MARRIAGE WAS NOT A VALID ONE
IN ILLINOIS, IT WAS VALID IN NEW JERSEY, WHERE PERFORMED, AND ALSO
VALID IN THEIR SUBSEQUENT SUCCESSIVE DOMICILES, AND WE THINK THAT UNDER
ALL THE FACTS DISCLOSED IT SHOULD BE HELD, CONTRARY TO THE FINDING OF
THE CHANCELLOR IN THE DECREE APPEALED FROM, THAT SHE REMARRIED WITHIN
THE MEANING OF THE WORDS CONTAINED IN SAID DIVORCE DECREE OF APRIL 1,
1915, AND IN THE WRITTEN AGREEMENT ENTERED INTO BETWEEN THE PARTIES
ABOUT THAT TIME, AND THAT SHE THEREBY ELECTED TO FORFEIT, AND DID
FORFEIT, HER RIGHT TO RECEIVE ALIMONY FOR HER OWN SUPPORT THEREAFTER
FROM RESPONDENT."  P. 526. 

THE ILLINOIS COURT WAS INFLUENCED BY THE PRACTICAL CONSTRUCTION GIVEN
TO THE ALIMONY DECREE BY THE PARTIES.  PP. 516, 527.  SEE WILSON V.
COOK, 256 ILL. 460, 100 N.E. 222. 

MR. JUSTICE BLACK AGREES WITH THE COURT OF APPEALS AND WOULD AFFIRM
ITS JUDGMENT. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THIS CASE ILLUSTRATES WHAT LITTLE EXCUSE IS LEFT FOR DIVERSITY
JURISDICTION, CERTAINLY SINCE ERIE R. CO. V. TOMPKINS, 304 U.S. 64, HAS
CURBED THE UNWARRANTED FREEDOM OF FEDERAL COURTS TO FASHION RULES OF
LOCAL LAW IN DEFIANCE OF LOCAL LAW.  FOR MY BROTHER REED NATURALLY
ENOUGH CONCLUDES THAT THE TURNING POINT OF THIS CASE IS A MATTER OF
ILLINOIS LAW HAVING NO RELATION WHATEVER TO THE ESSENTIAL FUNCTIONS
WHICH FEDERAL COURTS SERVE, AND A MATTER WHICH IS PECULIARLY ILL-SUITED
FOR DETERMINATION BY A FEDERAL COURT.  THE ISSUE IN THIS CASE IS
WHETHER THE OBLIGATION IMPOSED BY AN ILLINOIS DIVORCE DECREE TO PAY
ALIMONY "FOR SO LONG AS PLAINTIFF SHALL REMAIN UNMARRIED" CEASES UNDER
ILLINOIS LAW WHEN THE PLAINTIFF GOES THROUGH THE FORM OF ANOTHER
MARRIAGE CEREMONY REGARDLESS OF THE BINDING VALIDITY OF SUCH A
CEREMONY.  ILLINOIS IS FREE TO CONSULT SOLELY HER OWN WILL WHETHER SUCH
A PROVISION IN A DECREE RELATES MERELY TO CEREMONY OR REQUIRES A UNION
WITH A SPOUSE LEGALLY FREE TO MARRY.  ON THAT CRUCIAL ISSUE, WE ARE
TOLD, THERE IS NO ILLINOIS LAW.  BY WHAT SEEMS TO ME UNDESIRABLE
JUDICIAL ADMINISTRATION, THE ASCERTAINMENT - FOR ALL I KNOW THE
FORMULATION - OF ILLINOIS LAW IS COMMITTED TO A FEDERAL COURT WHICH IN
THE VERY NATURE OF THINGS CAN RENDER ONLY A TENTATIVE AND INDECISIVE
JUDGMENT. 

TENTATIVE AND INDECISIVE, BECAUSE WHATEVER VIEW THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT TAKES ON THIS QUESTION MAY BE AUTHORITATIVELY
SUPPLANTED BY THE ONLY COURT THAT CAN FINALLY SETTLE THE ISSUE, NAMELY,
THE SUPREME COURT OF ILLINOIS.  SUCH A DECISION FROM THE ILLINOIS
SUPREME COURT CAN READILY BE SOLICITED BY THE PLAINTIFF THROUGH THE
ILLINOIS DECLARATORY JUDGMENT PROCEDURE.  IT IS PRECISELY THE KIND OF
CONTROVERSY FOR WHICH THE UTILITY OF THE DEVICE OF A DECLARATORY
JUDGMENT HAS BEEN SO FULSOMELY ACCLAIMED.  INSTEAD OF AVAILING ITSELF
OF THIS MODERN PROCEDURE, THE COURT MAKES ITSELF A PARTY TO A DISCORD
WHICH PASSETH UNDERSTANDING. 

NO DOUBT THE COURT OF APPEALS MAY TENTATIVELY ANSWER THIS QUESTION OF
ILLINOIS LAW SO FAR AS THE IMMEDIATE PARTIES ARE CONCERNED.  BUT IT IS
NOT CONDUCIVE TO THE INTERESTS OF LAW IN GENERAL THAT THIS COURT SHOULD
COMPEL A DECISION IN A FEDERAL COURT WHICH TOMORROW OR THE DAY AFTER
MAY BE DEFINITIVELY CONTRADICTED BY THE STATE COURT WITH THE FINAL
SAY.  I WOULD REMAND THE CASE TO THE COURT OF APPEALS TO BE HELD BY IT
UNTIL THE PLAINTIFF SEEKS WITH ALL DELIBERATE SPEED A DECISION ON THE
CRUCIAL QUESTION OF THE CASE IN THE ILLINOIS COURTS. 

SUBJECT TO THIS QUALIFICATION, I AGREE WITH THE OPINION OF THE
COURT. 
..END :





GALLEGOS V. NEBRASKA 342 U.S. 55 


NO. 94.  ARGUED OCTOBER 8, 1951 - DECIDED NOVEMBER 26, 1951 - 152 NEB.
831, 43 N.W.2D 1, AFFIRMED. 


PETITIONER, A 38-YEAR-OLD MEXICAN FARM HAND WHO CAN NEITHER SPEAK NOR
WRITE ENGLISH, WAS ARRESTED, JAILED AND QUESTIONED IN TEXAS, AND AFTER
FOUR DAYS, DURING WHICH HE CLAIMS HE WAS MISTREATED, HE CONFESSED TO A
HOMICIDE IN NEBRASKA.  THEREAFTER HE WAS TAKEN TO NEBRASKA, WHERE HE
AGAIN CONFESSED, ALTHOUGH HE MAKES NO CLAIM OF MISTREATMENT BY THE
NEBRASKA AUTHORITIES.  TWENTY-FIVE DAYS AFTER HIS ARREST AND FOURTEEN
DAYS AFTER HIS ARRIVAL IN NEBRASKA, HE WAS BROUGHT BEFORE A MAGISTRATE
FOR THE FIRST TIME, AND HE PLEADED GUILTY.  TWO DAYS LATER, BEFORE
TRIAL, COUNSEL WAS APPOINTED TO DEFEND HIM.  AT HIS TRIAL IN A STATE
COURT, THE TWO CONFESSIONS AND THE PLEA WERE ADMITTED IN EVIDENCE OVER
HIS OBJECTION AND HE WAS CONVICTED OF MANSLAUGHTER.  THE STATE SUPREME
COURT AFFIRMED.  HELD: UPON THE RECORD IN THIS CASE, IT CANNOT BE SAID
THAT THE ADMISSION IN EVIDENCE OF THE CONFESSIONS AND PLEA VIOLATED
PETITIONER'S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 56-68; 68-73. 

(A)  THE RULE OF MCNABB V. UNITED STATES, 318 U.S. 332, IS NOT A
LIMITATION IMPOSED BY THE CONSTITUTION AND IS NOT APPLICABLE TO TRIALS
OF CRIMINAL CASES IN STATE COURTS.  PP. 63-65; 71-72. 

(B)  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT NEBRASKA
VIOLATED THE REQUIREMENTS OF DUE PROCESS IN THIS CONVICTION.  PP. 60
63, 65-68; 68-73. 

GALLEGOS V. NEBRASKA. 

CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

PETITIONER'S CONVICTION IN A STATE COURT OF NEBRASKA FOR
MANSLAUGHTER, CLAIMED TO HAVE BEEN IN VIOLATION OF RIGHTS UNDER THE
FOURTEENTH AMENDMENT, WAS AFFIRMED BY THE STATE SUPREME COURT.  152
NEB. 831, 43 N.W.2D 1.  THIS COURT GRANTED CERTIORARI.  341 U.S. 947. 
AFFIRMED, P. 68. 

MR. JUSTICE REED ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BURTON AND MR. JUSTICE CLARK
JOIN. 

PETITIONER, AGAPITA GALLEGOS, WAS CONVICTED IN A DISTRICT COURT OF
NEBRASKA OF MANSLAUGHTER AND SENTENCED TO TEN YEARS' IMPRISONMENT, THE
MAXIMUM PENALTY.  THE CHARGE WAS THE SLAYING OF HIS PARAMOUR WITHOUT
DELIBERATION OR PREMEDITATION.  THIS JUDGMENT OF CONVICTION WAS
SUSTAINED BY THE SUPREME COURT OF NEBRASKA OVER THE OBJECTION THAT
INTRODUCTION AT THE TRIAL OF PETITIONER'S PRIOR STATEMENTS ADMITTING
THE HOMICIDE VIOLATED THE FOURTEENTH AMENDMENT OF THE CONSTITUTION.  IN
VIEW OF CERTAIN UNDENIED INCIDENTS GIVING COLOR TO PETITIONER'S
ALLEGATION OF UNFAIRNESS IN THE PROSECUTION, CERTIORARI WAS GRANTED TO
DETERMINE WHETHER THE DUE PROCESS REQUIREMENTS OF THE FOURTEENTH
AMENDMENT WERE VIOLATED BY THE ADMISSION OF THE STATEMENTS.  341 U.S.
947. 

ON SEPTEMBER 19, 1949, AT THE REQUEST OF THE UNITED STATES
IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER, A THIRTY-EIGHT-YEAR
OLD MEXICAN FARM HAND WHO CAN NEITHER SPEAK NOR WRITE ENGLISH, WAS
ARRESTED, TOGETHER WITH HIS BROTHER, BY POLICE OFFICERS OF EL PASO
COUNTY, AT THE SOUTHWEST CORNER OF TEXAS, AND THERE BOOKED ON A CHARGE
OF VAGRANCY.  GALLEGOS HAD BEEN AN ITINERANT FARM WORKER IN THIS
COUNTRY BEFORE HIS ARREST AND HAD RECENTLY RETURNED HERE FOR SUCH
WORK. 

WE GATHER FROM THE ABBREVIATED RECORD THAT INFORMATION WAS SOUGHT BY
THE TEXAS AUTHORITIES AS TO PETITIONER'S ACTS IN NEBRASKA, WHERE HE HAD
WORKED THE PRECEDING YEAR.  AFTER ARREST, PETITIONER WAS QUESTIONED
REGARDING HIS IDENTITY.  HE AT ONCE GAVE A FALSE NAME.  THEREAFTER, HE
WAS JAILED IN A SMALL ROOM FOR THE NEXT TWENTY-ONE HOURS.  FURTHER
QUESTIONING TO ESTABLISH IDENTITY WAS HAD ON SEPTEMBER 20, 1949,
WITHOUT RESULT.  FOLLOWING HIS SECOND INTERROGATION, PETITIONER WAS
LEFT ALONE FOR FORTY-EIGHT HOURS.  ON SEPTEMBER 22, 1949, PETITIONER
WAS REMOVED FROM HIS CELL AND INTERROGATED.  AFTER HE GAVE HIS NAME AND
AN ADMISSION THAT HE HAD BEEN IN NEBRASKA, HE WAS RECONFINED; THIS TIME
CONFINEMENT RAN FOR A PERIOD OF TWENTY-FOUR HOURS. 

ON SEPTEMBER 23, 1949, PETITIONER DISCLOSED DETAILS OF THIS NEBRASKA
CRIME.  A STATEMENT IN RESPECT OF THE CRIME WAS IMMEDIATELY PREPARED IN
ENGLISH.  THIS WAS READ TO THE PETITIONER IN SPANISH, AND HE THEREAFTER
SIGNED IT.  HIS TEXAS DETENTION CONTINUED UNTIL SEPTEMBER 27, 1949. 
DURING THE ENTIRE TIME NO CHARGE WAS FILED AGAINST HIM IN ANY STATE OR
FEDERAL COURT NOR WAS HE BROUGHT BEFORE A MAGISTRATE. 

WE HAVE GALLEGOS' EVIDENCE AS TO HIS TEXAS CONFINEMENT, THE ROOMS HE
WAS PLACED IN, THEIR CONDITION AS TO FURNISHINGS, AND THE FOOD
PROVIDED.  HIS TESTIMONY ON THESE POINTS IS MET ONLY IN PART BY THE
TESTIMONY OF THE CHIEF DEPUTY SHERIFF OF EL PASO, HIS INTERROGATOR. 
THERE WERE TIMES WHEN GALLEGOS WAS NOT UNDER HIS DIRECT OBSERVATION. 
NEBRASKA HAD NO OTHER WITNESS FOR THE TRIAL FAMILIAR WITH CONDITIONS OF
THE TEXAS RESTRAINT.  GALLEGOS' TESTIMONY THROUGH THE INTERPRETER
CONCERNING THESE MATTERS IS VAGUE.  FROM IT ONE GATHERS THAT GALLEGOS
SOUGHT TO CONVEY THE IMPRESSION THAT THE ROOMS WERE CELLS, THAT THE ONE
HE OCCUPIED FOR TWENTY-ONE HOURS WAS WITHOUT A BED, THAT ONE HE
OCCUPIED WAS WITHOUT LIGHT OR POORLY LIGHTED, AND THAT THE FOOD WAS
SPARSE, PERHAPS NOT MORE THAN A MEAL A DAY. 

DURING THE QUESTIONING IN THE FOUR-DAY PERIOD FROM SEPTEMBER 19TH
THROUGH THE 23D, THE STATE SAYS PETITIONER WAS NOT TREATED OR
THREATENED WITH VIOLENCE.  HIS QUESTIONING DID NOT LAST LONGER THAN AN
HOUR OR TWO ON ANY DAY AND ACCORDING TO THE RECORD WAS CONDUCTED ALMOST
ENTIRELY BY THE STATE'S WITNESS, THE CHIEF DEPUTY SHERIFF.  HOWEVER,
GALLEGOS TESTIFIES THAT HE WAS TOLD THAT HE MIGHT BE TURNED OVER TO THE
MEXICAN AUTHORITIES FOR MORE SEVERE QUESTIONING AND THAT A LIE DETECTOR
MIGHT BE USED UPON HIM.  THE RECORD SHOWS NO FLAT DENIAL OF GALLEGOS'
ASSERTIONS CONTAINED IN THE LAST SENTENCE, BUT IT DOES SHOW, BY
TESTIMONY OF THE DEPUTY SHERIFF, THAT NO THREATS OR PROMISES WERE MADE
AND THAT REFERENCE TO THE MEXICAN AUTHORITIES, IF MADE, WAS THAT
GALLEGOS WOULD BE TURNED OVER TO THE UNITED STATES IMMIGRATION SERVICE
WHO, IN TURN, WOULD DELIVER HIM TO THE MEXICAN IMMIGRATION SERVICE. 
GALLEGOS ALSO SPOKE OF THREATENED VIOLENCE.  (FN1) 

ON SEPTEMBER 27, 1949, A NEBRASKA SHERIFF REACHED TEXAS AND TOOK
PETITIONER TO THE SCOTTS BLUFF COUNTY, NEBRASKA, JAIL, ARRIVING
THURSDAY, SEPTEMBER 29, AT 1 A.M.  GALLEGOS WAS QUESTIONED ON SATURDAY,
OCTOBER 1, AT WHICH TIME HE WAS INTERVIEWED THROUGH AN INTERPRETER BY
THREE COUNTY POLICE OFFICERS.  HE DESCRIBED THE CRIME FOR WHICH HE WAS
CONVICTED.  A TRANSCRIPT IN ENGLISH OF THE INTERPRETER'S TRANSLATIONS
OF THE INTERVIEW WAS MADE AND SOME DAYS LATER READ BACK TO PETITIONER
IN A SPANISH RETRANSLATION.  THE EVIDENCE IS THAT GALLEGOS CONFIRMED
THIS RECORD.  THE RECORD SHOWN NO CLAIM OF MISTREATMENT BY NEBRASKA
AUTHORITIES. 

BY SEC. 29-406, NEB. REV. STAT., 1943, A POLICE OFFICER IS COMMANDED
TO TAKE AN ACCUSED BEFORE A MAGISTRATE.  THIS WAS NOT DONE UNTIL
OCTOBER 13, 1949, WHEN PETITIONER WAS BROUGHT BEFORE THE COUNTY JUDGE
OF SCOTTS BLUFF COUNTY FOR A PRELIMINARY HEARING ON A COMPLAINT
CHARGING MURDER IN THE SECOND DEGREE.  THIS WAS THE FIRST TIME
PETITIONER WAS BROUGHT BEFORE ANY MAGISTRATE OR COURT.  AS AN INCIDENT
TO THE HEARING, PETITIONER WAS ASKED TO PLEAD.  HE PLEADED GUILTY. 
THESE TWO CONFESSIONS AND THE PLEA WERE INTRODUCED AT PETITIONER'S
TRIAL BY THE STATE.  ON OCTOBER 15, 1949, BEFORE TRIAL, THE DISTRICT
COURT OF SCOTTS BLUFF COUNTY FOUND PETITIONER TO BE ENTITLED TO COUNSEL
APPOINTED BY THE COURT, AND COUNSEL WAS THEN FOR THE FIRST TIME
APPOINTED. 

PETITIONER PRESENTS IN HIS BRIEF ONLY THE FOLLOWING QUESTION: 

"ARE CONFESSIONS AND A PLEA OBTAINED FROM A PRISONER DURING A PERIOD
OF TWENTY-FIVE DAYS ILLEGAL DETENTION BY FEDERAL AND STATE OFFICERS
BEFORE BEING BROUGHT BEFORE A MAGISTRATE AND BEFORE COUNSEL IS
APPOINTED TO ASSIST THE PRISONER ADMISSIBLE IN EVIDENCE?" 

AN ANSWER REQUIRES AN EXAMINATION INTO THE CIRCUMSTANCES OF RECORD
SURROUNDING THE STATEMENTS. 

BEFORE THE SUPREME COURT OF NEBRASKA, ON THE BASIS OF FACTS IN THE
RECORD OF THE TRIAL, IT WAS URGED THAT THE CONFESSIONS AND PLEA WERE
INADMISSIBLE BECAUSE THEY WERE THE RESULT OF "PHYSICAL TORTURE AND
THREATS OF TORTURE, MENTAL DURESS, ILLEGAL TRANSPORTATION AND ILLEGAL
DETENTION," IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS.  AS
CONVICTION WITHOUT ACCEPTANCE OF THE VOLUNTARY CHARACTER OF THE
CONFESSIONS WOULD LOGICALLY HAVE BEEN IMPOSSIBLE, WE ASSUME THAT THE
JURY, UNDER APPLICABLE INSTRUCTIONS, FOUND THE STATEMENTS VOLUNTARY. 
152 NEB. 831, 837-840, 43 N.W.2D 1, 4-6.  EVIDENTLY, NEITHER JUDGE NOR
JURY ACCEPTED THE TESTIMONY OF GALLEGOS ON DISPUTED FACTS AS TO
COERCION.  WHERE DIRECT CONTRADICTION OF PETITIONER'S ASSERTIONS AS TO
CONDITIONS OF HIS DETENTION IN TEXAS WAS UNAVAILABLE OR UNOBTAINABLE,
THE JURY DISREGARDED OR MINIMIZED OR DISBELIEVED GALLEGOS TO SUCH AN
EXTENT THAT HIS CONFESSIONS WERE ACCEPTED AS VOLUNTARY.  THE DEPUTY
SHERIFF, THE PROSECUTION WITNESS IN THE BEST POSITION TO KNOW, DENIED
ANY COERCION BY PROMISE, THREAT OR VIOLENCE.  A CRIMINAL PROSECUTION
APPROVED BY THE STATE SHOULD NOT BE SET ASIDE AS VIOLATIVE OF DUE
PROCESS WITHOUT CLEAR PROOF THAT SUCH DRASTIC ACTION IS REQUIRED TO
PROTECT FEDERAL CONSTITUTIONAL RIGHTS.  WHILE OUR CONCLUSION ON DUE
PROCESS DOES NOT NECESSARILY FOLLOW THE ULTIMATE DETERMINATIONS OF
JUDGES OR JURIES AS TO THE VOLUNTARY CHARACTER OF A DEFENDANT'S
STATEMENTS PRIOR TO TRIAL, THE BETTER OPPORTUNITY AFFORDED THOSE STATE
AGENCIES TO APPRAISE THE WEIGHT OF THE EVIDENCE, BECAUSE THE WITNESSES
GAVE IT PERSONALLY BEFORE THEM, LEADS US TO ACCEPT THEIR JUDGMENT
INSOFAR AS FACTS UPON WHICH CONCLUSIONS MUST BE REACHED ARE IN
DISPUTE.  THE STATE'S ULTIMATE CONCLUSION ON GUILT IS EXAMINED FROM THE
DUE PROCESS STANDPOINT IN THE LIGHT OF FACTS UNDISPUTED BY THE STATE. 
(FN2)  THAT MEANS NOT ONLY ADMITTED FACTS BUT ALSO THOSE THAT CAN BE
CLASSIFIED FROM THE RECORD AS WITHOUT SUBSTANTIAL CHALLENGE. 

AS THIS COURT HAS BEEN ENTRUSTED WITH POWER TO INTERPRET AND APPLY
OUR CONSTITUTION TO THE PROTECTION OF THE RIGHT OF AN ACCUSED TO
FEDERAL DUE PROCESS IN STATE CRIMINAL TRIALS, THE PROPER PERFORMANCE OF
THAT DUTY REQUIRES US TO EXAMINE, IN CASES BEFORE US, SUCH UNDISPUTED
FACTS AS FORM THE BASIS OF A STATE COURT'S DENIAL OF THAT RIGHT. 
KANSAS CITY SOUTHERN R. CO. V. ALBERS COMM'N CO., 223 U.S. 573, 591;
NORRIS V. ALABAMA, 294 U.S. 587, 594; WATTS V. INDIANA, 338 U.S. 49,
51.  A CONTRARY RULE WOULD DENY TO THE FEDERAL GOVERNMENT ULTIMATE
AUTHORITY TO REDRESS A VIOLATION OF CONSTITUTIONAL RIGHTS.  AS STATE
COURTS ALSO ARE CHARGED WITH APPLYING CONSTITUTIONAL STANDARDS OF DUE
PROCESS, IN RECOGNITION OF THEIR SUPERIOR OPPORTUNITY TO APPRAISE
CONFLICTING TESTIMONY, WE GIVE DEFERENCE TO THEIR CONCLUSIONS ON
DISPUTED AND ESSENTIAL ISSUES OF WHAT ACTUALLY HAPPENED.  SEE NOTE 2,
INFRA.  ITS DUTY COMPELS THIS COURT, HOWEVER, TO DECIDE FOR ITSELF, ON
THE FACTS THAT ARE UNDISPUTED, THE CONSTITUTIONAL VALIDITY OF A
JUDGMENT THAT DENIES CLAIMED CONSTITUTIONAL RIGHTS. 

CONTROVERSIES AS TO FACTS TAKE VARIOUS FORMS.  THE JURY MAY REACH A
VERDICT OF GUILTY ALTHOUGH THEY RESOLVED SOME SUBSIDIARY FACT IN FAVOR
OF THE ACCUSED.  IN GALLEGOS' CASE WE DO NOT KNOW WHETHER HIS
ASSERTIONS NOT DIRECTLY CONTRADICTED AS TO QUESTIONABLE CONDITIONS OF
HIS TEXAS DETENTION AND EXAMINATION WERE ACCEPTED AS TRUE BY THE JURY. 
IT IS QUITE POSSIBLE THAT THE JURY THOUGHT THE CONFESSION VOLUNTARY
EVEN THOUGH IT IT BELIEVED ALL OF GALLEGOS' TESTIMONY.  AS WE CANNOT
ACCEPT THE VERDICT AS A FINDING SOLELY ON DISPUTED FACTS, WE MUST WEIGH
GALLEGOS' UNCONTRADICTED TESTIMONY ALONG WITH THE UNDISPUTED FACTS.  WE
ARE NOT FREE, AS NEBRASKA WAS, TO LEAVE TO THE JURY DETERMINATIONS OF
FACTS UPON WHICH THE ADMISSIBILITY OF THE STATEMENTS IS BASED.  (FN3) 

THE ISSUE OF FEDERAL DUE PROCESS NOW TENDERED IS TO BE CONSIDERED
ONLY ON UNCONTROVERTED FACTS.  THE ANSWER TO THE QUESTION PRESENTED
DEPENDS UPON WHETHER THERE IS A VIOLATION OF THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT FROM THE ADMITTED CIRCUMSTANCES THAT THE TWO
CONFESSIONS OF SEPTEMBER 23 AND OCTOBER 1 WERE GIVEN TO POLICE OFFICERS
AFTER ARREST IN TEXAS ON SEPTEMBER 19, 1949, WHILE NO MAGISTRATE WITH
SUPERVISORY POWER OVER THE EXAMINATIONS WAS PRESENT AND WHILE THE
ACCUSED WAS WITHOUT COUNSEL.  CIRCUMSTANCES SURROUNDING THE TEXAS, AS
WELL AS THE NEBRASKA, CONFESSION MUST BE APPRAISED BECAUSE NEBRASKA
INTRODUCED THE TEXAS CONFESSION IN EVIDENCE IN THE TRIAL.  THE USE OF
ANY CONFESSION OBTAINED IN VIOLATION OF DUE PROCESS REQUIRES THE
REVERSAL OF A CONVICTION EVEN THOUGH UNCHALLENGED EVIDENCE, ADEQUATE TO
CONVICT, REMAINS.  MALINSKI V. NEW YORK, 324 U.S. 401, 404.  BOTH
STATES REQUIRE FUGITIVES FROM JUSTICE TO BE PROMPTLY TAKEN BEFORE A
MAGISTRATE ON ARREST FOR EXTRADITION.  TEXAS, VERNON'S CODE OF CRIMINAL
PROCEDURE, ARTS. 998, 999, 217.  NEB. REV. STAT., 1943, SECS. 29-713,
29-715.  THE QUESTION MUST BE WEIGHED IN THE LIGHT OF THE
UNCONTRADICTED PORTION OF GALLEGOS' OWN TESTIMONY OF HARSH TREATMENT
AND THE ANSWERS OF THE PROSECUTION AND THE JUDGE AND THE JURY.  THE
PLEA OF GUILTY AT THE PRELIMINARY HEARING ON OCTOBER 13 IS ALSO A
FACTOR.  WE THEREFORE LIMIT OUR EXAMINATION TO AN INQUIRY AS TO WHETHER
USE AT TRIAL OF THESE ADMISSIONS OF GUILT THERETOFORE MADE BY AN
ACCUSED VIOLATES THE FOURTEENTH AMENDMENT. 

THE DECISION AND JUDGMENT BELOW DETERMINE FOR US THAT UNDER THE LAW
OF NEBRASKA SUCH DETENTION AND EXAMINATION, WITHOUT APPEARANCE OR
ARRAIGNMENT, DO NOT REQUIRE EXCLUSION OF THE CONFESSIONS OR PLEA AS
INVOLUNTARY.  (FN4)  THE RULE OF THE MCNABB CASE, CONSIDERED RECENTLY
IN UNITED STATES V. CARIGNAN, 342 U.S. 36, IS NOT A LIMITATION IMPOSED
BY THE DUE PROCESS CLAUSE.  MCNABB V. UNITED STATES, 318 U.S. 332, 340;
LYONS V. OKLAHOMA, 322 U.S. 596, 597, NOTE 2.  COMPLIANCE WITH THE
MCNABB RULE IS REQUIRED IN FEDERAL COURTS BY THIS COURT THROUGH ITS
POWER OF SUPERVISION OVER THE PROCEDURE AND PRACTICES OF FEDERAL COURTS
IN THE TRIAL OF CRIMINAL CASES.  THAT POWER OVER STATE CRIMINAL TRIALS
IS NOT VESTED IN THIS COURT.  A CONFESSION CAN BE DECLARED INADMISSIBLE
IN A STATE CRIMINAL TRIAL BY THIS COURT ONLY WHEN THE CIRCUMSTANCES
UNDER WHICH IT IS RECEIVED VIOLATE THOSE "FUNDAMENTAL PRINCIPLES OF
LIBERTY AND JUSTICE" PROTECTED BY THE FOURTEENTH AMENDMENT AGAINST
INFRACTION BY ANY STATE.  (FN5) 

THE FEDERAL CONSTITUTION DOES NOT COMMAND A STATE TO FURNISH
DEFENDANTS COUNSEL AS A MATTER OF COURSE, AS IS REQUIRED BY THE SIXTH
AMENDMENT IN FEDERAL PROSECUTIONS.  (FN6)  LACK OF COUNSEL AT STATE
NONCAPITAL TRIALS DENIES FEDERAL CONSTITUTIONAL PROTECTION ONLY WHEN
THE ABSENCE RESULTS IN A DENIAL TO ACCUSED OF THE ESSENTIALS OF
JUSTICE.  (FN7)  LACK OF COUNSEL PRIOR TO TRIAL CERTAINLY HAS NO
GREATER EFFECT.  LYONS V. OKLAHOMA, SUPRA, P. 599.  "THE MERE FACT THAT
A CONFESSION WAS MADE WHILE IN THE CUSTODY OF THE POLICE DOES NOT
RENDER IT INADMISSIBLE."  MCNABB V. UNITED STATES, 318 U.S. 332, 346;
CF. UNITED STATES V. CARIGNAN, 342 U.S. 36, 39.    PROLONGED DETENTION
WITHOUT A CHARGE OF CRIME OR WITHOUT PRELIMINARY APPEARANCE BEFORE A
MAGISTRATE, THE LACK OF COUNSEL BEFORE, DURING, OR AFTER ARRAIGNMENT,
AND CONFESSION TO THE POLICE IN PRIVATE, ARE, HOWEVER, ELEMENTS THAT
SHOULD BE CONSIDERED IN DETERMINING WHETHER A CONFESSION, PERMITTED TO
BE INTRODUCED AND RELIED UPON AT A TRIAL, HAS BEEN OBTAINED UNDER SUCH
CIRCUMSTANCES THAT ITS USE VIOLATES DUE PROCESS.  WATTS V. INDIANA, 338
U.S. 49, 54.  OF COURSE, THE PLEA OF GUILTY AT THE PRELIMINARY HEARING
SHOULD BE TREATED IN THE SAME WAY AS THE CONFESSIONS. 

SO FAR AS DUE PROCESS AFFECTS ADMISSIONS BEFORE TRIAL OF THE
DEFENDANT, THE ACCEPTED TEST IS THEIR VOLUNTARINESS.  (FN8)  THIS
REQUIRES APPRAISAL OF THE FACTS OF EACH PARTICULAR CASE OPEN TO
CONSIDERATION BY THIS COURT.  IN RECENT CASES, WHERE UNDISPUTED FACTS
EXISTED FAR MORE LIKELY TO PRODUCE INVOLUNTARY CONFESSIONS THAN THOSE
IN THIS CASE, THERE WAS DISAGREEMENT AS TO WHETHER DUE PROCESS WAS
VIOLATED.  (FN9)  THE FACTS HERE TO SUPPORT A CLAIM OF DENIAL OF DUE
PROCESS ARE NOT SO CONVINCING. 

CERTIORARI WAS GRANTED IN THIS CASE BECAUSE THE RECORD DISCLOSED A
SERIOUS CHARGE UNDER THE DUE PROCESS CLAUSE AGAINST NEBRASKA PROCEDURE
IN A CRIMINAL CASE.  WE HAVE CAREFULLY WEIGHED THE CIRCUMSTANCES OF THE
PETITIONER'S LACK OF EDUCATION AND FAMILIARITY WITH OUR LAW, HIS
EXPERIENCE AND CONDITION IN LIFE, HIS NEED FOR ADVICE OF COUNSEL AS TO
THE LAW OF HOMICIDE AND THE PROBABLE EFFECT ON SUCH A MAN OF
INTERROGATION DURING CONFINEMENT.  WE HAVE ALSO TAKEN INTO
CONSIDERATION GALLEGOS' UNCONTRADICTED TESTIMONY ABOUT HIS
ACCOMMODATIONS, HIS LIMITED AMOUNTS OF FOOD AND CERTAIN THREATS MADE BY
A TEXAS ASSISTANT SHERIFF NOT PRESENT AT THE TRIAL.  THE UNCERTAIN
CHARACTER OF THIS UNCONTRADICTED TESTIMONY, ITS LACK OF DEFINITENESS,
AND THE ACTION OF THE TRIAL JUDGE AND JURY LEAD US TO PLACE LITTLE
WEIGHT UPON IT.  OUR POSITION IS CONFIRMED BY GALLEGOS' REITERATION OF
HIS CONFESSION WHILE IN CUSTODY IN NEBRASKA, WHEN HE CHARGES NO
COERCION EXCEPT DETENTION.  SEE LYONS V. OKLAHOMA, 322 U.S. 596, 603. 

WE CANNOT SAY THAT NEBRASKA HAS HERE VIOLATED STANDARDS OF DECENCY OR
JUSTICE IN THIS CONVICTION.  AFFIRMED. 

FN1  "A.  AT ANY TIME WHEN ANYBODY WAS TALKING TO YOU AT THE JAIL IN
EL PASO, TEXAS, DID THEY ACT LIKE THEY WERE TRYING TO SCARE YOU? 

     *         *         *         *         * 

"A. YES, SIR. 

"Q.  TELL US WHEN THAT WAS? 

"A.  WHEN THEY STARTED TO INVESTIGATE ME. 

"Q.  WAS THAT THE FIRST DAY YOU WERE IN JAIL OR THE SECOND DAY OR THE
THIRD DAY? 

"A.  THE FIRST DAY. 

"Q.  TELL US WHAT HAPPENED. 

"A.  THEY TRIED TO GET WORDS OUT OF MY FORCIBLY BY ANOTHER SHERIFF
THAT IS THERE. 

"Q.  DO YOU KNOW WHO THAT OTHER SHERIFF WAS? 

"A.  I DON'T KNOW WHAT HIS NAME IS. 

"Q.  HAVE YOU SEEN HIM HERE IN THIS COURT ROOM? 

"A.  NO, SIR. 

"Q.  WHAT DID HE DO? 

"A.  HE WOULD NOT TAKE HIS EYES AWAY FROM ME AND HE SEEMED LIKE HE
WANTED TO HIT ME AND I WAS FRIGHTENED AND I DIDN'T KNOW WHAT TO DO." 
(R. 84-85.) 

"Q.  BUT YOU SAY NO ONE STRUCK YOU? 

"A.  NO. 

"Q.  AND NO ONE EVER RAISED THEIR ARM AS IF THEY WERE GOING TO STRIKE
YOU? 

"A.  THE OTHER FELLOW. 

"Q.  WHAT OTHER FELLOW? 

"A.  THE OTHER ONE THAT INVESTIGATED ME. 

"Q.  WHERE DID HE DO THAT? 

"A.  IN ONE ROOM THAT HE HAD THERE WHERE HE WAS INVESTIGATING ME. 

"Q.  HOW DID HE THREATEN TO STRIKE YOU? 

"A.  WITH HIS HAND. 

"Q.  DID HE STRIKE YOU AT THAT TIME? 

"A.  HE JUST RAISED HIS HAND. 

"Q.  DID HE SAY HE WAS GOING TO STRIKE YOU? 

"A.  HE SAID HE WAS GOING TO HIT ME BECAUSE I WOULD NOT TELL HIM THE
TRUTH. 

"Q.  BUT HE STILL DID NOT HIT YOU? 

"A.  NO, HE DID NOT HIT ME."  (R. 90-91.) 

FN2  LYONS V. OKLAHOMA, 322 U.S. 596, 603; MALINSKI V. NEW YORK, 324
U.S. 401, 404; HALEY V. OHIO, 332 U.S. 596, 599; WATTS V. INDIANA, 338
U.S. 49, 51.  CF. LISENBA V. CALIFORNIA, 314 U.S. 219, 238-241. 

FN3  152 NEB. 839, 43 N.W.2D 5: 

"WHILE THERE IS TESTIMONY GIVEN BY THE DEFENDANT FROM WHICH THE JURY
COULD HAVE FOUND THAT THE CONFESSIONS MADE WERE INVOLUNTARY DUE TO THE
MANNER IN WHICH DEFENDANT WAS HELD IN CONFINEMENT, THE TREATMENT
RECEIVED WHILE SO HELD, AND THE THREATS MADE; HOWEVER, THE TESTIMONY OF
THE AUTHORITIES IN CHARGE, BOTH AT EL PASO AND SCOTTSBLUFF, DENY THESE
FACTS AND WHEN THEIR TESTIMONY IS TAKEN TOGETHER WITH CERTAIN TESTIMONY
OF THE DEFENDANT, IT PRESENTS A FACTUAL SITUATION FROM WHICH THE JURY
COULD PROPERLY FIND THAT THE CONFESSIONS WERE FREELY AND VOLUNTARILY
MADE.  THIS INCLUDES THE ISSUE PRESENTED BY THE EVIDENCE OFFERED AS TO
WHETHER OR NOT THE COMPLAINT WAS PROPERLY TRANSLATED AT THE PRELIMINARY
HEARING SO IT WAS UNDERSTOOD BY THE DEFENDANT IN MAKING HIS PLEA
THERETO.  IT ALSO INCLUDES THE QUESTION OF WHETHER OR NOT HE UNDERSTOOD
THE NATURE OR DEGREE OF THE CRIME WITH WHICH HE WAS CHARGED.  THESE
ISSUES BOTH RELATE THEMSELVES DIRECTLY TO THE QUESTION OF WHETHER OR
NOT HE UNDERSTOOD WHAT HE WAS DOING WHEN HE MADE HIS ADMISSION OF GUILT
AND CONSEQUENTLY RELATE DIRECTLY TO WHETHER IT WAS VOLUNTARILY OR
INVOLUNTARILY MADE." 

FN4  GALLEGOS V. STATE, 152 NEB. 831, 839-840, 43 N.W.2D 1, 6: 

"IN REGARD TO HOW SOON AFTER A PERSON IS ARRESTED HE MUST BE GIVEN A
PRELIMINARY HEARING WE SAID IN MAHER V. STATE, 144 NEB. 463, 13 N.W.2D
641: 'THE QUESTION AS TO THE TIME IN WHICH THE DEFENDANT SHOULD BE
GIVEN A PRELIMINARY HEARING IS A QUESTION FOR THE COURT.  THERE CAN BE
NO PRECISE LENGTH OF TIME, AFTER THE ARREST OF A PERSON, IN WHICH HE
MUST BE GIVEN A HEARING.  THE THEORY OF THE LAW IS THAT HE MUST BE
GIVEN A HEARING AS SOON AS POSSIBLE.  A PERSON CHARGED SHOULD BE GIVEN
A PRELIMINARY HEARING JUST AS SOON AS THE NATURE AND CIRCUMSTANCES OF
THE CASE WILL PERMIT.' 

"  ...  HERE THE COURT, IN THE FIRST INSTANCE, HEARD ALL OF THE
EVIDENCE RELATING THERETO AND DETERMINED THAT SUFFICIENT FOUNDATION HAD
BEEN LAID FOR THEIR ADMISSION.  THE EVIDENCE WAS THEN PRESENTED TO THE
JURY AND THE QUESTION AS TO THEIR CHARACTER, WHETHER VOLUNTARY OR
INVOLUNTARY, WAS SUBMITTED TO IT BY THE COURT'S INSTRUCTIONS NOS. 12,
13, AND 14.  WE FIND THE FACTS AND CIRCUMSTANCES RELATING TO THE GIVING
OF THE TWO CONFESSIONS AND THE ADMISSION OF GUILT AT THE PRELIMINARY
HEARING JUSTIFIED THE TRIAL COURT IN ADMITTING THEM IN EVIDENCE IN THE
FIRST INSTANCE AND SUBMITTING THEIR CHARACTER, WHETHER VOLUNTARY OR
INVOLUNTARY, TO THE JURY.  SEE KITTS.  V. STATE (151 NEB. 679, 39
N.W.2D 283)." 

FN5  HEBERT V. LOUISIANA, 272 U.S. 312, 316; ADAMSON V. CALIFORNIA,
332 U.S. 46, 54. 

FN6  QUICKSALL V. MICHIGAN, 339 U.S. 660; BUTE V. ILLINOIS, 333 U.S.
640; FOSTER V. ILLINOIS, 332 U.S. 134. 

FN7  UVEGES V. PENNSYLVANIA, 335 U.S. 437, 441; BETTS V. BRADY, 316
U.S. 455, 462; COMPARE HAWK V. OLSON, 326 U.S. 271, 278. 

FN8  BROWN V. MISSISSIPPI, 297 U.S. 278, 285-286; CHAMBERS V.
FLORIDA, 309 U.S. 227, 236, 238; LISENBA V. CALIFORNIA, 314 U.S. 219,
238. 

FN9  WATTS V. INDIANA, 338 U.S. 49, 51, 52: 

"ON NOVEMBER 12, 1947, A WEDNESDAY, PETITIONER WAS ARRESTED AND HELD
AS THE SUSPECTED PERPETRATOR OF AN ALLEGED CRIMINAL ASSAULT EARLIER IN
THE DAY.  LATER THE SAME DAY, IN THE VICINITY OF THIS OCCURRENCE, A
WOMAN WAS FOUND DEAD UNDER CONDITIONS SUGGESTING MURDER IN THE COURSE
OF AN ATTEMPTED CRIMINAL ASSAULT.  SUSPICION OF MURDER QUICKLY TURNED
TOWARDS PETITIONER AND THE POLICE BEGAN TO QUESTION HIM.  THEY TOOK HIM
FROM THE COUNTY JAIL TO STATE POLICE HEADQUARTERS, WHERE HE WAS
QUESTIONED BY OFFICERS IN RELAYS FROM ABOUT 11:30 THAT NIGHT UNTIL
SOMETIME BETWEEN 2:30 AND 3 O'CLOCK THE FOLLOWING MORNING.  THE SAME
PROCEDURE OF PERSISTENT INTERROGATION FROM ABOUT 5:30 IN THE AFTERNOON
UNTIL ABOUT 3 O'CLOCK THE FOLLOWING MORNING, BY A RELAY OF SIX TO EIGHT
OFFICERS, WAS PURSUED ON THURSDAY THE 13TH, FRIDAY THE 14TH, SATURDAY
THE 15TH, MONDAY THE 17TH.  SUNDAY WAS A DAY OF REST FROM
INTERROGATION.  ABOUT 3 O'CLOCK ON TUESDAY MORNING, NOVEMBER 18, THE
PETITIONER MADE AN INCRIMINATING STATEMENT AFTER CONTINUOUS QUESTIONING
SINCE 6 O'CLOCK OF THE PRECEDING EVENING.  THE STATEMENT DID NOT
SATISFY THE PROSECUTOR WHO HAD BEEN CALLED IN AND HE THEN TOOK
PETITIONER IN HAND.   PETITIONER, QUESTIONED BY AN INTERROGATOR OF
TWENTY YEARS' EXPERIENCE AS LAWYER, JUDGE AND PROSECUTOR, YIELDED A
MORE INCRIMINATING DOCUMENT. 

"UNTIL HIS INCULPATORY STATEMENTS WERE SECURED, THE PETITIONER WAS A
PRISONER IN THE EXCLUSIVE CONTROL OF THE PROSECUTING AUTHORITIES.  HE
WAS KEPT FOR THE FIRST TWO DAYS IN SOLITARY CONFINEMENT IN A CELL APTLY
ENOUGH CALLED 'THE HOLE' IN VIEW OF ITS PHYSICAL CONDITIONS AS
DESCRIBED BY THE STATE'S WITNESSES.  APART FROM THE FIVE NIGHT
SESSIONS, THE POLICE INTERMITTENTLY INTERROGATED WATTS DURING THE DAY
AND ON THREE DAYS DROVE HIM AROUND TOWN, HOURS AT A TIME, WITH A VIEW
TO ELICITING IDENTIFICATIONS AND OTHER DISCLOSURES.  ALTHOUGH THE LAW
OF INDIANA REQUIRED THAT PETITIONER BE GIVEN A PROMPT PRELIMINARY
HEARING BEFORE A MAGISTRATE, WITH ALL THE PROTECTION A HEARING WAS
INTENDED TO GIVE HIM, THE PETITIONER WAS NOT ONLY GIVEN NO HEARING
DURING THE ENTIRE PERIOD OF INTERROGATION BUT WAS WITHOUT FRIENDLY OR
PROFESSIONAL AID AND WITHOUT ADVICE AS TO HIS CONSTITUTIONAL RIGHTS. 
DISREGARD OF RUDIMENTARY NEEDS OF LIFE - OPPORTUNITIES FOR SLEEP AND A
DECENT ALLOWANCE OF FOOD - ARE ALSO RELEVANT, NOT AS AGGRAVATING
ELEMENTS OF PETITIONER'S TREATMENT, BUT AS PART OF THE TOTAL SITUATION
OUT OF WHICH HIS CONFESSIONS CAME AND WHICH STAMPED THEIR CHARACTER." 

TURNER V. PENNSYLVANIA, 338 U.S. 62, 63-64: 

"THE OFFICERS MAKING THE ARREST HAD NO WARRANT AND DID NOT TELL THE
PETITIONER WHY HE WAS BEING ARRESTED.  THESE OFFICERS BEGAN TO QUESTION
THE PETITIONER AS SOON AS THEY REACHED THE CITY HALL POLICE STATION. 
ONE OF THEM EXAMINED THE PETITIONER FOR THREE HOURS ON THAT AFTERNOON
AND AGAIN THAT NIGHT FROM EIGHT TO ELEVEN O'CLOCK.  FROM TIME TO TIME
OTHER OFFICERS JOINED IN THE INTERROGATION.  PETITIONER PERSISTENTLY
DENIED ANY KNOWLEDGE OF THE MURDER. 

"THE NEXT MORNING, JUNE 4, THE PETITIONER WAS BOOKED ON THE POLICE
RECORDS AS BEING HELD FOR QUESTIONING.  LATER THAT DAY HE WAS
QUESTIONED FOR ABOUT FOUR HOURS MORE.  ON JUNE 5 HE WAS INTERROGATED
FOR ANOTHER FOUR HOURS AND ON THE 6TH FOR DAY AND NIGHT SESSIONS
TOTALING SIX HOURS.  THE QUESTIONING WAS CONDUCTED SOMETIMES BY ONE
OFFICER AND AT OTHER TIMES BY SEVERAL WORKING TOGETHER; IT APPEARS, IN
FACT, THAT WHENEVER ONE OF THE POLICE OFFICERS INTERESTED IN THE
INVESTIGATION HAD ANY FREE TIME HE WOULD HAVE THE PETITIONER BROUGHT
FROM HIS CELL FOR QUESTIONING. 

"ON JUNE 7, THE DAY WHEN A CONFESSION WAS FINALLY OBTAINED,
QUESTIONING BEGAN IN THE AFTERNOON AND CONTINUED FOR THREE HOURS. 
LATER THAT DAY THE OFFICERS WHO HAD BEEN PRESENT DURING THE AFTERNOON
RETURNED WITH OTHERS TO RESUME THE EXAMINATION OF PETITIONER.  DESPITE
THE FACT THAT HE WAS FALSELY TOLD THAT OTHER SUSPECTS HAD 'OPENED UP'
ON HIM, PETITIONER REPEATEDLY DENIED GUILT.  BUT FINALLY, AT ABOUT
ELEVEN O'CLOCK, PETITIONER STATED THAT HE HAD KILLED THE PERSON FOR
WHOSE MURDER HE WAS LATER ARRAIGNED." 

HARRIS V. SOUTH CAROLINA, 338 U.S. 68, 69-70: 

"ON MONDAY NIGHT QUESTIONING BEGAN IN EARNEST.  AT LEAST FIVE
OFFICERS WORKED IN RELAYS, RELIEVING EACH OTHER FROM TIME TO TIME TO
PERMIT RESPITE FROM THE STIFLING HEAT OF THE CUBICLE IN WHICH THE
INTERROGATION WAS CONDUCTED.  THROUGHOUT THE EVENING PETITIONER DENIED
THAT HE HAD KILLED THE BENNETTS.  ON TUESDAY THE QUESTIONING CONTINUED
UNDER THE SAME CONDITIONS FROM 1:30 IN THE AFTERNOON UNTIL PAST ONE THE
FOLLOWING MORNING WITH ONLY AN HOUR'S INTERVAL AT 5:30.  ON WEDNESDAY
AFTERNOON THE CHIEF OF THE STATE CONSTABULARY, WITH HALF A DOZEN OF HIS
MEN, QUESTIONED PETITIONER FOR ABOUT AN HOUR, AND THE LOCAL AUTHORITIES
CARRIED ON THE INTERROGATION FOR THREE AND A HALF HOURS LONGER.  AT
6:30 THAT EVENING THE EXAMINATION RESUMED.  PETITIONER CONTINUED TO
DENY IMPLICATION IN THE KILLINGS.  THE SHERIFF THEN THREATENED TO
ARREST PETITIONER'S MOTHER FOR HANDLING STOLEN PROPERTY.  PETITIONER
REPLIED, 'DON'T GET MY MOTHER MIXED UP IN IT AND I WILL TELL YOU THE
TRUTH.'  PETITIONER THEN STATED IN SUBSTANCE WHAT APPEARS IN THE
CONFESSION INTRODUCED AT THE TRIAL.  THE SESSION ENDED AT MIDNIGHT. 

"PETITIONER WAS NOT INFORMED OF HIS RIGHTS UNDER SOUTH CAROLINA LAW,
SUCH AS THE RIGHT TO SECURE A LAWYER, THE RIGHT TO REQUEST A
PRELIMINARY HEARING, OR THE RIGHT TO REMAIN SILENT.  NO PRELIMINARY
HEARING WAS EVER GIVEN AND HIS CONFESSION DOES NOT EVEN CONTAIN THE
USUAL STATEMENT THAT HE WAS TOLD THAT WHAT HE SAID MIGHT BE USED
AGAINST HIM.  DURING THE SHOLE PERIOD OF INTERROGATION HE WAS DENIED
THE BENEFIT OF CONSULTATION WITH FAMILY AND FRIENDS AND WAS SURROUNDED
BY AS MANY AS A DOZEN MEMBERS OF A DOMINANT GROUP IN POSITIONS OF
AUTHORITY.  IT IS RELEVANT TO NOTE THAT HARRIS WAS AN ILLITERATE." 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS, CONCURRING. 

THE STATE OF NEBRASKA IS THE PARTY THAT WE HAVE SUMMONED TO ANSWER
FOR STATE ACTION CLAIMED TO VIOLATE THE FOURTEENTH AMENDMENT.  I BEGIN,
THEREFORE, BY CONSIDERING JUST WHAT NEBRASKA ITSELF HAS DONE THAT MAY
BE SAID TO VIOLATE RIGHTS OF THE PETITIONER. 

NEBRASKA AUTHORITIES WERE NOT PURSUING GALLEGOS.  THEY DID NOT KNOW
THAT MURDER HAD BEEN DONE IN THAT STATE AND WERE UNDER NO PRESSURE TO
PIN GUILT ON SOMEONE.  GALLEGOS, A MEXICAN ILLEGALLY IN THIS COUNTRY,
HAD BEEN A TRANSIENT WORKER IN NEBRASKA BEET FIELDS AND HAD WITH HIM A
WOMAN AND TWO CHILDREN.  THE WHENCE AND WHITHER OF THEIR COMINGS AND
GOINGS MADE NO IMPRESSION ON THE COMMUNITY, AND WHEN THEY DISAPPEARED
NO ONE ASKED HOW OR WHY.    FROM TEXAS AUTHORITIES, HOWEVER, CAME WORD
THAT A MEXICAN, HELD THERE AT REQUEST OF THE UNITED STATES IMMIGRATION
AND NATURALIZATION SERVICE, HAD CONFESSED TO MURDERING HIS WOMAN IN
NEBRASKA AND HAD TOLD WHERE THE BODY WAS BURIED.  NEBRASKA DOES NOT
CHARGE MURDER ON THE BASIS OF A CONFESSION WITHOUT PROOF OF THE CORPUS
DELICTI, SO THE NEBRASKA OFFICERS - FROM INFORMATION GIVEN BY GALLEGOS
IN TEXAS - FOUND A GRAVE AND A DECOMPOSED BODY ULTIMATELY IDENTIFIED AS
THAT OF THE WOMAN WHO HAD BEEN LIVING THERE WITH GALLEGOS WITHOUT
BENEFIT OF CLERGY.  ONLY AFTER THIS DISCOVERY AND IDENTIFICATION WERE
THEY IN A POSITION TO MAKE A MURDER CHARGE. 

GALLEGOS WAS BROUGHT FROM TEXAS TO SCOTTS BLUFF COUNTY, NEBRASKA. 
THAT WAS THE FIRST TIME HE WAS IN THE CUSTODY OF NEBRASKA.  THERE IS
NOT THE SLIGHTEST PROOF OR SUGGESTION BY THE DEFENDANT OR HIS COUNSEL
THAT NEBRASKA OFFICIALS ABUSED, THREATENED, OR UNDULY QUESTIONED HIM. 
ON THE CONTRARY, HE WILLINGLY TOLD HOW HE BEAT HIS PARAMOUR TO DEATH IN
A FIT OF JEALOUSY.  THE ONLY COMPLAINT AGAINST NEBRASKA IS THAT IT
DETAINED GALLEGOS AN UNDULY LONG TIME BEFORE ARRAIGNMENT.  EVEN IF IT
DID, THE DELAY WAS AFTER CONFESSION AND THEREFORE COULD NOT HAVE BEEN
FOR ANY SINISTER PURPOSE OF COERCING ONE, NOR COULD THE DETENTION HAVE
BEEN THE CAUSE OF CONFESSION.  THERE IS NOT, FROM ANY STATE ACTION BY
NEBRASKA, THE SLIGHTEST GROUND FOR INFERENCE THAT THE CONFESSION TO ITS
OFFICIALS WAS NOT GIVEN VOLUNTARILY. 

UPON THE TRIAL, HOWEVER, THE PROSECUTION PROVED NOT ONLY THE NEBRASKA
CONFESSION BUT ALSO AN EARLIER ONE MADE IN TEXAS.  IN CONNECTION WITH
THE LATTER, VAGUE ALLEGATIONS ARE MADE AGAINST THE TEXAS OFFICIALS. 
PERHAPS THE PROSECUTION WOULD HAVE BEEN WELL ADVISED NOT TO HAVE PROVED
HOW THE MURDER ORIGINALLY CAME TO LIGHT.  BUT THE PROSECUTION CHOSE TO
LAY THE WHOLE MATTER BEFORE THE JURY, AND HAD IT FAILED TO DO SO IT
WOULD NO DOUBT HAVE BEEN CHARGED WITH SOME SINISTER PURPOSE IN ITS
SUPPRESSION. 

EVEN IF WE SHOULD ASSUME THAT TEXAS OFFICIALS COERCED THIS
CONFESSION, THEY WERE NOT ACTING AT THE REQUEST OF NEBRASKA NOR IN ANY
SENSE AS HER AGENT.  BEFORE WE COULD REVERSE THE CONVICTION, WE WOULD
HAVE TO DECIDE A QUESTION NOT HERETOFORE ANSWERED IN ANY DECISION THAT
I RECALL, NAMELY, WHETHER NEBRASKA MERELY BY ADMITTING A COERCED
FOREIGN CONFESSION IN EVIDENCE WOULD DENY DUE PROCESS.  INSOFAR AS THE
REASON FOR EXCLUSION IS TO PREVENT CONVICTIONS ON COERCED CONFESSIONS,
WHICH ARE SHOWN BY LEGAL EXPERIENCE TO BE INTRINSICALLY UNRELIABLE, I
SHOULD SUPPOSE THAT ANY DEFECT IN ITS ORIGIN WOULD INHERE IN THE
CONFESSION WHEREVER OFFERED.  INSOFAR, HOWEVER, AS THE REASON FOR
EXCLUSION IS TO DETER STATES FROM ATTEMPTING COERCION IN ORDER TO BRING
ABOUT CONVICTIONS, THE REASON WOULD HARDLY APPLY TO A CASE WHERE A
STATE OF CONFESSION SOUGHT NO CONVICTION AND THE STATE OF CONVICTION
DID NOT SEEK THE CONFESSION.  BUT HERE THERE IS NO NEED TO RESOLVE SUCH
DIFFICULT QUESTIONS IN AFFIRMING THE CONVICTION, FOR I FIND NO COERCION
SUCH AS WOULD REQUIRE EXCLUSION OF THIS CONFESSION, EVEN IF NEBRASKA BE
HELD TO ANSWER FOR THE CONDUCT OF EVERY OFFICIAL INVOLVED. 

GALLEGOS WAS TAKEN INTO CUSTODY BY THE TEXAS AUTHORITIES AT THE
REQUEST OF THE UNITED STATES IMMIGRATION SERVICE.  THEY HAD PROBABLE
CAUSE TO BELIEVE HE WAS ILLEGALLY IN THE COUNTRY, AS INDEED HE WAS, AND
I SHOULD NOT SUPPOSE HIS DETENTION WAS ILLEGAL.  THE DEFENDANT HIMSELF
DOES NOT CLAIM THAT HE WAS BEATEN, UNDULY QUESTIONED, OR THREATENED,
EXCEPT THAT HE WAS TOLD HE MIGHT BE SHIPPED BACK TO MEXICO AND TURNED
OVER TO THE MEXICAN AUTHORITIES - A STATEMENT WHICH, IF MADE, WAS
PATENTLY TRUE. 

IT SHOULD BE BORNE IN MIND THAT THE DETAINING OFFICERS DID NOT KNOW
OF THIS MURDER EXCEPT THAT THE IMMIGRATION OFFICIALS APPARENTLY HAD
SOME INFORMATION THAT THE WOMAN IN THE CASE HAD DISAPPEARED.  THE TEXAS
AUTHORITIES WERE NOT UNDER PRESSURE TO SOLVE A LOCAL MURDER.  IT IS NOT
EVEN CLEAR THAT THEY ACCUSED GALLEGOS OF MURDER AND CERTAINLY THEY HAD
NO THEORY OF A CRIME WHICH THEY WERE TRYING TO SUPPORT BY OBTAINING A
CONFESSION. 

BUT "THE GUILTY FLEE WHEN NO MAN PURSUETH."  FOR THREE DAYS, GALLEGOS
REFUSED TO TELL HIS NAME.  BUT WHEN HE FINALLY REVEALED HIS IDENTITY,
HE WENT ON AND TOLD ALL.  HE MAY HAVE BEEN OF THE IMPRESSION THAT THE
AUTHORITIES WHO WERE HOLDING HIM KNEW MORE THAN THEY DID.  ONLY THE
FACT THAT HE WAS IN CUSTODY, THE FEAR THAT HIS DEEDS WERE KNOWN, AND
THE WEIGHT OF THE CRIME ON HIS CONSCIENCE CAN BE SAID TO HAVE COERCED
THIS CONFESSION. 

THIS DEFENDANT'S TRIAL APPEARS TO HAVE BEEN SCRUPULOUSLY FAIR AND
DISPASSIONATE.  THE JURY AND THE NEBRASKA COURTS APPEAR TO HAVE WEIGHED
ALL OF THE CLAIMS OF GALLEGOS FAIRLY AND FOUND, WHAT I DO NOT SEE HOW
THEY COULD AVOID FINDING, THAT THE CONFESSIONS WERE VOLUNTARY WITHIN
THE MEANING OF THE LAW.   THESE ARE NOT CONFESSIONS OBTAINED TO FIT THE
FACTS KNOWN TO THE OFFICIALS.  IT IS A CASE WHERE THE OFFICIALS WERE
DIRECTED TO FACTS THAT FITTED DETAILS OF THE CONFESSION.  NOR IS IT A
CASE WHERE THE CONFESSION WAS ALTERED OR EMBELLISHED IN A PROLONGED
PROCESS OF EXAMINATION.  THE STORY FIRST GIVEN TO THE AUTHORITIES IN
TEXAS IS SUBSTANTIALLY IDENTICAL WITH THAT RECITED TO THE NEBRASKA
AUTHORITIES IN GREATER DETAIL. 

INDEED NO CONTENTION IS BROUGHT TO THIS COURT THAT THE CONFESSIONS
WERE IN FACT COERCED OR INVOLUNTARY.  THE REASON NO SUCH CONTENTION IS
MADE IS THAT CAPABLE AND ZEALOUS COUNSEL CANNOT SUPPORT THEM ON THIS
RECORD.  BUT THE CONTENTION IS THAT BOTH CONFESSIONS SHOULD BE MADE
INADMISSIBLE IN EVIDENCE BECAUSE WE SHOULD CONVERT THE SO-CALLED MCNABB
RULE, A RULE OF EVIDENCE FOR FEDERAL COURTS, INTO A CONSTITUTIONAL
LIMITATION UPON THE STATES.  MCNABB V. UNITED STATES, 318 U.S. 332. 
THE CLAIM, AND THE ONLY CLAIM, IS THAT BECAUSE GALLEGOS WAS NOT
ARRAIGNED BY TEXAS IMMEDIATELY AFTER ARREST AND AGAIN BY NEBRASKA
IMMEDIATELY AFTER ARRIVAL IN THAT STATE, EACH DETENTION WAS ILLEGAL AND
THE CONFESSIONS, EVEN IF MADE WITHOUT ABUSE OR THREAT OF IT, BUT AS A
RESULT OF QUESTIONING DURING THIS DETENTION, ARE INADMISSIBLE IN
EVIDENCE.  THE ONLY "QUESTION PRESENTED" BY THE PETITION TO THIS COURT
READS: "ARE CONFESSIONS OF AN ACCUSED OBTAINED FROM HIM DURING A
PROLONGED PERIOD OF UNLAWFUL DETENTION BEFORE HE WAS BROUGHT BEFORE A
MAGISTRATE AND BEFORE A COUNSEL WAS APPOINTED TO ASSIST HIM, ADMISSIBLE
IN EVIDENCE?"  EVERY ONE OF THE THREE SPECIFICATIONS OF ERROR URGED IN
PETITIONER'S BRIEF IS BASED ON "TWENTY-FIVE DAYS OF UNLAWFUL DETENTION"
AND ON THAT ALONE. 

LET US SEE WHAT THIS WOULD MEAN AS APPLIED TO TEXAS.  TEXAS MADE THE
ARREST AT THE REQUEST OF THE IMMIGRATION AUTHORITIES AND IT IS NOT
DENIED THAT THEY HAD PROBABLE CAUSE TO BELIEVE HE WAS AN ALIEN WHO HAD
ENTERED THE COUNTRY ILLEGALLY.  BUT, FOR THREE DAYS HE WOULD NOT TELL
HIS NAME.  I SHOULD NOT SUPPOSE THE AUTHORITIES WERE OBLIGED TO RELEASE
AN OBVIOUS ALIEN SO CHARGED BEFORE THEY COULD LEARN HIS IDENTITY.  THEN
HE DISCLOSED THE MURDER.  BUT THE MURDER DID NOT TAKE PLACE IN TEXAS. 
THAT STATE OBVIOUSLY COULD NOT ARRAIGN HIM FOR IT.  WAS IT OBLIGED TO
TURN LOOSE A CONFESSED MURDERER BECAUSE THE MURDER OCCURRED OUTSIDE OF
THEIR JURISDICTION?  IT DOES NOT SEEM TO ME THAT TO HOLD SUCH A PERSON
WITHOUT ARRAIGNMENT UNDER THESE CIRCUMSTANCES DENIES DUE PROCESS,
UNLESS DUE PROCESS PROHIBITS SOCIETY FROM TAKING COMMON-SENSE STEPS TO
SOLVE A MURDER. 

BUT IT IS COMPLAINED THAT NEBRASKA HELD HIM TOO LONG (JUST HOW LONG
IS TOO LONG WE NEVER ARE TOLD) WITHOUT ARRAIGNMENT.  AS I HAVE POINTED
OUT, NEBRASKA KNEW NOTHING OF THE MURDER AND HAD TO CONDUCT AN
INVESTIGATION BEFORE IT COULD MAKE A PROPERLY SUPPORTED CHARGE OF
MURDER.  CERTAINLY DUE PROCESS DOES NOT REQUIRE THAT CHARGES BE PLACED
HURRIEDLY AND RECKLESSLY.  SCOTTS BLUFF COUNTY IS A RURAL COUNTY WITH
LESS THAN FORTY THOUSAND INHABITANTS, MORE THAN HALF OF WHOM ARE
CONCENTRATED IN TWO TOWNS, THE LARGEST OF WHICH HAS A POPULATION OF
ONLY TWELVE THOUSAND.  THE SMALL PROSECUTING STAFF THAT SUCH A COUNTY
WOULD MAINTAIN CANNOT BE EXPECTED TO MOVE WITH THE SPEED OF THE FEDERAL
GOVERNMENT, WITH ITS MANY THOUSAND AGENTS AND COUNTLESS ATTORNEYS, OR
WITH THE SPEED OF BIG CITY POLICE FORCES.  WHAT WAS THERE TO HURRY
ABOUT?  GALLEGOS HAD ALREADY CONFESSED AND HE WAS NOT PREJUDICED BY THE
DELAY.  THE AUTHORITIES TOOK THEIR TIME DRAWING PAPERS AND GETTING
PROOF OF THE CORPUS DELICTI IN ORDER.  THERE SEEMS TO HAVE BEEN NO
PASSION OR REVENGE AT WORK IN THE CASE.  A SMALL PROSECUTING OFFICE IN
A TOWN WHERE LIFE IS LEISURELY MADE A SIMPLE EFFORT TO GO ABOUT ITS
DUTY WITH CONVENIENT SPEED. 

EVEN IF, AS SOME MEMBERS OF THE COURT ARDENTLY DESIRE, THE MCNABB
RULE WERE EVER TO BE CONVERTED INTO A CONSTITUTIONAL LIMITATION UPON
THE STATES, THE FACTS IN THIS CASE WOULD AFFORD A POOR FOUNDATION FOR
IT.  I CONCUR IN THE AFFIRMANCE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

AMERICANS JUSTLY COMPLAIN WHEN THEIR FELLOW CITIZENS IN CERTAIN
EUROPEAN COUNTRIES ARE POUNCED UPON AT WILL BY STATE POLICE, HELD IN
JAIL INCOMMUNICADO, AND LATER CONVICTED OF CRIME ON CONFESSIONS
OBTAINED DURING SUCH INCARCERATION.  YET IN PART* UPON JUST SUCH A
CONFESSION, THIS COURT TODAY AFFIRMS NEBRASKA'S CONVICTION OF A CITIZEN
OF MEXICO WHO CAN NEITHER READ NOR UNDERSTAND ENGLISH. 

*DURING PETITIONER'S TRIAL AN ALLEGED CONFESSION MADE IN TEXAS, AN
ALLEGED CONFESSION MADE IN NEBRASKA AND A PLEA OF GUILTY ENTERED IN A
NEBRASKA COURT WERE INTRODUCED IN EVIDENCE AGAINST HIM.  HIS CONVICTION
SHOULD BE REVERSED IF ANY ONE OF THESE THREE ITEMS OF EVIDENCE WERE
SECURED IN VIOLATION OF DUE PROCESS OF LAW WHICH THE FEDERAL
CONSTITUTION GUARANTEES.  FOR THIS REASON I CONSIDER THE TEXAS
CONFESSION ONLY. 

THE RECORD SHOWS THE FOLLOWING FACTS WITHOUT ANY DISPUTE AT ALL:
WHILE WORKING IN A FIELD IN EL PASO COUNTY, TEXAS, ON SEPTEMBER 19,
1949, THE PETITIONER WAS ARRESTED BY A LOCAL DEPUTY SHERIFF WITHOUT A
WARRANT.  THE EXCUSE GIVEN FOR THE ARREST WAS THAT IMMIGRATION OFFICERS
HAD REQUESTED IT. NO CHARGE WAS EVER FILED AGAINST PETITIONER IN ANY
TEXAS STATE COURT NOR WAS ANY WARRANT SWORN OUT AGAINST HIM DURING THE
EIGHT DAYS HE WAS KEPT IN THE TEXAS JAIL.  HIS DETENTION WAS
INCOMMUNICADO EXCEPT FOR REPEATED QUESTIONING BY THE DEPUTIES.  PART OF
THE TIME PETITIONER WAS KEPT IN AN 8 FOOT X 8 FOOT CELL WITH NO
WINDOWS, A CELL WHICH A TEXAS DEPUTY TESTIFYING IN THIS CASE REFERRED
TO AS THE "DARK ROOM" OR THE "PUNISHMENT ROOM," ALTHOUGH PETITIONER WAS
A "DOCILE PRISONER" AND DID ALL HE WAS TOLD TO DO BY THE OFFICERS.  IT
WAS DURING THIS INCARCERATION OF EIGHT DAYS THAT THE PETITIONER GAVE A
CONFESSION USED TO CONVICT HIM IN THIS CASE.  AS IS USUAL IN THIS TYPE
OF CASE THE DEPUTIES SAY THAT THE CONFESSION WAS WHOLLY "VOLUNTARY";
PETITIONER SAYS THAT IT WAS DUE TO FEAR ENGENDERED BY HIS INCARCERATION
AND THE ACTIONS OF THE DEPUTIES.  EVEN IF THE OFFICERS' STORY SHOULD
HAPPEN TO BE CORRECT, I BELIEVE THE CONSTITUTION FORBIDS THE USE OF
CONFESSIONS OBTAINED BY THE KIND OF SECRET INQUISITION THESE DEPUTIES
CONDUCTED. 

THERE ARE COUNTRIES WHERE ARBITRARY ARRESTS LIKE THIS, FOLLOWED BY
SECRET IMPRISONMENT AND SYSTEMATIC QUESTIONING UNTIL CONFESSIONS ARE
OBTAINED, ARE STILL RECOGNIZED AND PERMISSIBLE LEGAL PROCEDURES.  SEE
"THE TRAP CLOSES" BY ROBERT A. VOGELER WITH LEIGH WHITE, THE SATURDAY
EVENING POST, NOVEMBER 3, 1951, P. 36 ET SEQ. MY OWN BELIEF IS THAT
ONLY BY DEPARTURE FROM THE CONSTITUTION AS PROPERLY INTERPRETED CAN
AMERICA TOLERATE SUCH PRACTICES.  SEE ASHCRAFT V. TENNESSEE, 322 U.S.
143, 154-155; CHAMBERS V. FLORIDA, 309 U.S. 227; BRAM V. UNITED STATES,
168 U.S. 532, 556, 562-563.  I WOULD REVERSE THIS JUDGMENT. 
..END :



BINDCZYCK V. FINUCANE 342 U.S. 76 


NO. 18.  ARGUED OCTOBER 10, 1951 - DECIDED NOVEMBER 26, 1951 - 87 U.S.
APP. D.C. 137, 184 F.2D 225, REVERSED. 


1.  THE PROCEDURE PRESCRIBED BY SEC. 338 OF THE NATIONALITY ACT OF
1940, 8 U.S.C. SEC. 738, IS THE EXCLUSIVE PROCEDURE FOR REVOKING
NATURALIZATION ON THE GROUND OF FRAUD OR ILLEGAL PROCUREMENT, BASED ON
EVIDENCE OUTSIDE THE RECORD.  PP. 77-88. 

2.  A STATE COURT GRANTED PETITIONER A CERTIFICATE OF CITIZENSHIP. 
AT THE SAME TERM, AS PERMITTED BY STATE PRACTICE, IT GRANTED A MOTION
OF THE GOVERNMENT, BASED ON EVIDENCE OUTSIDE THE RECORD, TO VACATE AND
SET ASIDE ITS ORDER OF NATURALIZATION ON THE GROUND OF FRAUD IN
PROCUREMENT.  PETITIONER APPEARED PERSONALLY AND ADMITTED THE FRAUD. 
HELD:  THIS REVOCATION OF PETITIONER'S NATURALIZATION IS VOID, BECAUSE
IT WAS NOT IN ACCORDANCE WITH THE UNIFORM PROCEDURE PRESCRIBED BY SEC.
338 OF THE NATIONALITY ACT.  PP. 77-88. 

(A)  CONGRESS INTENDED TO PRESCRIBE A UNIFORM AND CAREFULLY
SAFEGUARDED PROCEDURE FOR REVOKING NATURALIZATION ON THE GROUND OF
FRAUD OR ILLEGAL PROCUREMENT BASED ON EVIDENCE OUTSIDE THE RECORD; AND
THIS PURPOSE WOULD BE DEFEATED IF STATE COURTS COULD FOLLOW INSTEAD
WIDELY DIVERSE STATE RULES AFFECTING THE FINALITY OF LOCAL JUDGMENTS. 
PP. 79-86. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY TUTUN V. UNITED STATES,
270 U.S. 568, SUSTAINING THE RIGHT OF AN ALIEN TO APPEAL FROM AN ORDER
DENYING NATURALIZATION.  PP. 86-88. 

BINDCZYCK V. FINUCANE, CHAIRMAN OF THE BOARD OF IMMIGRATION APPEALS, ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE DISTRICT COURT GRANTED PETITIONER A JUDGMENT DECLARING HIM TO BE
A CITIZEN OF THE UNITED STATES.  THE COURT OF APPEALS REVERSED.  87
U.S. APP. D.C. 137, 184 F.2D 225.  THIS COURT GRANTED CERTIORARI.  341
U.S. 919.  REVERSED, P. 88. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 2, 1943, THE CIRCUIT COURT OF FREDERICK COUNTY, MARYLAND,
ISSUED A CERTIFICATE OF NATURALIZATION TO PETITIONER AFTER PROCEEDINGS
THAT CONFORMED WITH THE REQUIREMENTS OF THE NATIONALITY ACT OF 1940. 
54 STAT. 1137, 8 U.S.C. SEC. 501 FF.  SEVEN DAYS LATER, AND AT THE SAME
TERM OF COURT, THE GOVERNMENT MOVED TO VACATE AND SET ASIDE THE ORDER
OF NATURALIZATION, CLAIMING ON EVIDENCE OUTSIDE THE RECORD THAT IT WAS
OBTAINED BY FRAUD AND THAT THEREFORE THE CITIZENSHIP WAS ILLEGALLY
PROCURED. 

IT IS ADMITTED THAT THE REQUIREMENTS OF SEC. 338 OF THE NATIONALITY
ACT, WHEREIN CONGRESS MADE SPECIFIC PROVISION FOR "REVOKING  ...  THE
ORDER ADMITTING  ...  TO CITIZENSHIP  ...  ON THE GROUND OF FRAUD OR ON
THE GROUND THAT SUCH ORDER  ...  WAS ILLEGALLY PROCURED," (FN1) WERE
NOT FOLLOWED.  INSTEAD, THE MARYLAND COURT EXERCISED ITS GENERAL POWER
UNDER MARYLAND LAW TO SET ASIDE JUDGMENTS DURING THE TERM OF COURT IN
WHICH THEY WERE RENDERED.  (FN2) 

WE BROUGHT THIS CASE HERE TO DETERMINE WHETHER THE REQUIREMENTS OF
SEC. 338 CONTROL THE REVOCATION OF CITIZENSHIP ON THE GROUND OF FRAUD
OR ON THE GROUND THAT IT WAS ILLEGALLY PROCURED; OR WHETHER THE GRANT
OF CITIZENSHIP BY THE COURTS OF THE FORTY-EIGHT STATES IS SUBJECT TO
WHATEVER SUMMARY CONTROL STATE COURTS MAY HAVE OVER THEIR MERELY LOCAL
JUDGMENTS.  THE QUESTIONS ARE OF OBVIOUS IMPORTANCE IN THE
ADMINISTRATION OF THE NATURALIZATION LAWS, APART FROM THE CONFLICT
BETWEEN THE VIEWS OF THE COURT BELOW AND THOSE OF THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT IN UNITED STATES EX REL. VOLPE V. JORDAN, 161
F.2D 390. 

THE ISSUE WAS RAISED BY PETITIONER'S ACTION IN THE DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA FOR A JUDGMENT DECLARING HIM TO BE A CITIZEN
OF THE UNITED STATES AND FOR AN ORDER RESTRAINING RESPONDENTS FROM
DEPORTING HIM.  UPON A MOTION BY THE GOVERNMENT TO DISMISS THE
COMPLAINT, PETITIONER MOVED FOR SUMMARY JUDGMENT WHICH WAS GRANTED BY
THE DISTRICT COURT, DECLARING PETITIONER "TO BE A NATIONAL AND CITIZEN
OF THE UNITED STATES" BUT "WITHOUT PREJUDICE TO THE GOVERNMENT'S RIGHT
TO INSTITUTE APPROPRIATE PROCEEDINGS FOR DENATURALIZATION UNDER SEC.
338 OF THE NATIONALITY ACT OF 1940."  THE COURT OF APPEALS REVERSED, 87
U.S. APP. D.C. 137, 184 F.2D 225, AND WE GRANTED CERTIORARI.  341 U.S.
919. 

DUE REGARD FOR SEC. 338, INCLUDING THE HISTORY OF ITS ORIGIN, AND FOR
THE NATURE OF A JUDGMENT OF NATURALIZATION, TOGETHER WITH A
CONSIDERATION OF THE CONFLICTING AND CAPRICIOUS DIVERSITIES OF LOCAL
LAW AFFECTING THE FINALITY OF LOCAL JUDGMENTS, COMPEL US TO HOLD THAT
SEC. 338 IS THE EXCLUSIVE PROCEDURE FOR CANCELING CITIZENSHIP ON THE
SCORE OF FRAUDULENT OR ILLEGAL PROCUREMENT BASED ON EVIDENCE OUTSIDE
THE RECORD. 

REENACTMENT OF SEC. 15 OF THE ACT OF JUNE 29, 1906, 34 STAT. 596, 601. 
THAT ACT WAS THE CULMINATION OF HALF A CENTURY'S AGITATION DIRECTED AT
NATURALIZATION FRAUDS, PARTICULARLY IN THEIR BEARING UPON THE
SUFFRAGE.  (FN3)  ON THE BASIS OF A NATIONWIDE SURVEY TO DETERMINE THE
INCIDENCE AND CAUSES OF NATURALIZATION FRAUDS WITH A VIEW TO DEVISING
RECOMMENDATIONS FOR CORRECTIVE LEGISLATION, PRESIDENT THEODORE
ROOSEVELT'S COMMISSION ON NATURALIZATION PREPARED A REPORT WHICH WAS
THE FOUNDATION OF THE ACT OF 1906.  H.R. DOC. NO. 46, 59TH CONG., 1ST
SESS.  THIS REPORT, THE HEARINGS BEFORE CONGRESSIONAL COMMITTEES AND
THEIR REPORTS, THE FLOOR DEBATES ON THE PROPOSED MEASURE, LEAVE NO
DOUBT THAT THE TARGET OF LEGISLATION WAS FRAUDULENT NATURALIZATION. 
(FN4)  IT IS EQUALLY CLEAR THAT THE REMEDY FOR THE DISCLOSED EVIL LAY
IN THE EFFECTIVE EXERCISE OF THE POWER OF CONGRESS "TO ESTABLISH AN
UNIFORM RULE OF NATURALIZATION."  U.S. CONST., ART. I, SEC. 8, CL. 4. 

TO PREVENT FRAUD IN A PROCEEDING BEFORE A NATURALIZATION COURT, THE
ACT DEVISED A SCHEME OF ADMINISTRATIVE OVERSIGHT FOR THE NATURALIZATION
PROCESS.  THE GOVERNMENT WAS GIVEN THE RIGHT TO APPEAR.  SEC. 11, 34
STAT. 596, 599.  THIS RIGHT WAS FORTIFIED BY REQUIRING NOTICE OF THE
PETITION TO THE NEWLY CREATED BUREAU OF IMMIGRATION AND NATURALIZATION
AND A NINETY-DAY WAITING PERIOD BETWEEN THE FILING OF THE PETITION AND
THE FINAL HEARING.  SECS. 6 AND 12, 34 STAT. 596, 598 AND 599.  THESE
WERE SAFEGUARDS TO ENABLE VERIFICATION BY THE BUREAU OF THE FACTS
ALLEGED IN THE PETITION AND INVESTIGATION OF THE QUALIFICATIONS OF THE
APPLICANT FOR CITIZENSHIP.  (FN5)  BY THESE PROVISIONS CONGRESS
RECOGNIZED THAT ENFORCEMENT IS THE HEART OF THE LAW. 

BUT CONGRESS WAS NOT CONTENT TO DEVISE MEASURES AGAINST FRAUD IN
PROCURING NATURALIZATION ONLY.  IN SEC. 15 OF THE ACT OF 1906 IT
FORMULATED A CAREFULLY SAFEGUARDED METHOD FOR DENATURALIZATION.  THOUGH
THE PRINCIPAL CRITICISM LEADING TO THE ENACTMENT CONCERNED THE EVILS
INHERENT IN WIDELY DIVERSE NATURALIZATION PROCEDURES, EXPERIENCE WAS
NOT WANTING OF THE DANGERS AND HARDSHIPS ATTENDANT ON HAPHAZARD
DENATURALIZATION.  INFORMATION WAS BEFORE CONGRESS THAT EVER SINCE 1890
THE THEN CIRCUIT COURTS HAD VACATED NATURALIZATION ORDERS AT THE SUIT
OF THE ATTORNEY GENERAL, (FN6) ALTHOUGH WHEN THE VALIDITY OF SEC. 15
WAS BEFORE IT, THIS COURT LEFT OPEN THE QUESTION WHETHER A COURT OF
EQUITY HAD SUCH POWER WITHOUT EXPRESS LEGISLATIVE AUTHORITY. 
JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 240.  BUT THE REVOCATION OF
CITIZENSHIP BEFORE 1906 WAS NOT ALWAYS SURROUNDED BY THE SAFEGUARDS OF
AN ORIGINAL EQUITY PROCEEDING.  SEE, E.G., TINN V. UNITED STATES
DISTRICT ATTORNEY, 148 CAL. 773, 84 P. 152 (1906).  (FN7)  INDEED, THE
HISTORY OF THE ACT OF 1906 MAKES CLEAR THAT ELECTIONS COULD BE
INFLUENCED BY IRREGULAR DENATURALIZATIONS AS WELL AS BY FRAUDULENT
NATURALIZATIONS.  THE ONLY INSTANCE IN THE EXTENSIVE LEGISLATIVE
MATERIALS OF VACATION OF NATURALIZATION ORDERS BY WHAT APPEARS TO HAVE
BEEN THE PROCEDURE URGED BY THE GOVERNMENT IN THIS CASE INVOLVED JUST
SUCH A SITUATION.  A JUDGE WHO HAD NATURALIZED SEVEN ALIENS ON THE
SUPPOSITION THAT THEY WERE MEMBERS OF HIS OWN POLITICAL PARTY PROMPTLY
VACATED HIS ORDER WHEN THIS SUPPOSITION WAS CORRECTED.  SEE REP. ATTY.
GEN. 394 (1903).  (FN8)

SIGNIFICANTLY, FLOOR ACTION ON SEC. 15 IN THE HOUSE REVEALS A
SPECIFIC PURPOSE TO DEPRIVE THE NATURALIZING COURT AS SUCH OF POWER TO
REVOKE.  THE ORIGINAL BILL AUTHORIZED UNITED STATES ATTORNEYS TO
INSTITUTE REVOCATION PROCEEDINGS IN THE COURT ISSUING THE CERTIFICATE
AS WELL AS IN A COURT HAVING JURISDICTION TO NATURALIZE IN THE DISTRICT
OF THE NATURALIZED CITIZEN'S RESIDENCE.  H.R. 15442, 59TH CONG., 1ST
SESS., SEC. 17.  A COMMITTEE AMENDMENT ADOPTED JUST BEFORE FINAL
PASSAGE PUT THE SECTION IN THE FORM IN WHICH IT WAS ENACTED.  THAT
AMENDMENT, IN THE WORDS OF CONGRESSMAN BONYNGE, THE MANAGER OF THE
BILL, "TAKES AWAY THE RIGHT TO INSTITUTE A REVOCATION PROCEEDING IN THE
COURT OUT OF WHICH THE CERTIFICATE OF CITIZENSHIP MAY HAVE BEEN ISSUED,
UNLESS THE ALIEN HAPPENS TO RESIDE WITHIN THE JURISDICTION OF THAT
COURT."  40 CONG. REC. 7874. 

IN THE LIGHT OF THIS LEGISLATIVE HISTORY WE CANNOT ESCAPE THE
CONCLUSION THAT IN ITS DETAILED PROVISIONS FOR REVOKING A
NATURALIZATION BECAUSE OF FRAUD OR ILLEGAL PROCUREMENT NOT APPEARING ON
THE FACE OF THE RECORD, CONGRESS FORMULATED A SELF-CONTAINED, EXCLUSIVE
PROCEDURE.  WITH A VIEW TO PROTECTING THE GOVERNMENT AGAINST FRAUD
WHILE SAFEGUARDING CITIZENSHIP FROM ABROGATION EXCEPT BY A CLEARLY
DEFINED PROCEDURE, CONGRESS INSISTED ON THE DETAILED, EXPLICIT
PROVISIONS OF SEC. 15.  TO FIND THAT AT THE SAME TIME IT LEFT THE SAME
RESULT TO BE ACHIEVED BY THE CONFUSED AND CONFLICTING MEDLEY, AS WE
SHALL SEE, OF STATE PROCEDURES FOR SETTING ASIDE LOCAL JUDGMENTS IS TO
READ CONGRESSIONAL ENACTMENT WITHOUT RESPECT FOR REASON. 

BETWEEN THEM, THESE TWO SECTIONS, SEC. 11 AND SEC. 15, PROVIDED A
COMPLETE AND EXCLUSIVE FRAMEWORK FOR SAFEGUARDING CITIZENSHIP AGAINST
UNQUALIFIED APPLICANTS.  UNDER THE FIRST, THE GOVERNMENT WAS GIVEN
AMPLE OPPORTUNITY TO INTERPOSE OBJECTIONS PRIOR TO THE ORDER OF
NATURALIZATION.  IF PROPER ACCOUNT WAS NOT TAKEN OF THE EVIDENCE, THE
GOVERNMENT HAD RECOURSE TO APPEAL FOR EXAMINATION OF THE ACTION OF THE
NATURALIZING COURT ON THE RECORD.  TUTUN V. UNITED STATES, 270 U.S.
568.  CONGRESS, HOWEVER, THOUGHT THAT NINETY DAYS WAS QUITE ENOUGH TIME
FOR THE GOVERNMENT TO DEVELOP ITS CASE - INDEED MANY MEMBERS DEEMED IT
TOO LONG.  40 CONG. REC. 7766-7770.  AT THE EXPIRATION OF THAT TIME, IF
CITIZENSHIP WAS GRANTED, IT WAS TO BE PROOF AGAINST ATTACKS FOR FRAUD
OR ILLEGAL PROCUREMENT BASED ON EVIDENCE OUTSIDE THE RECORD, EXCEPT
THROUGH THE PROCEEDINGS PRESCRIBED IN SEC. 15.  THE CONGRESSIONAL
SCHEME, PROVIDING CAREFULLY FOR THE REPRESENTATION OF THE GOVERNMENT'S
INTEREST BEFORE THE GRANT OF CITIZENSHIP AND A DETAILED, SAFEGUARDED
PROCEDURE FOR ATTACKING THE DECREE ON EVIDENCE OF FRAUD OUTSIDE THE
RECORD, (FN9) COVERS THE WHOLE GROUND.  EVERY NATIONAL INTEREST IS
THEREBY PROTECTED. 

NEITHER UNCONTESTED PRACTICE NOR ADJUDICATION BY LOWER COURTS HAS
RENDERED A VERDICT WHICH IS DISREGARDED BY OUR CONSTRUCTION OF SEC.
338.  NOR AS A RULE FOR FUTURE CONDUCT IS ANY BURDEN THEREBY PLACED ON
THE GOVERNMENT IN SETTING ASIDE A NATURALIZATION ORDER WHERE IT CAN
PROVE ILLEGALITY OR FRAUD. 

AN ABSTRACT SYLLOGISM IS PRESSED AGAINST THIS NATURAL, BECAUSE
RATIONAL, TREATMENT OF SEC. 338 AS THE EXCLUSIVE AND SAFEGUARDING
PROCEDURE FOR VOIDING NATURALIZATIONS GRANTED AFTER COMPLIANCE WITH THE
CAREFUL FORMALITIES OF SEC. 334.  (FN10)  GRANT OF CITIZENSHIP IS A
JUDGMENT; A JUDGMENT IS WITHIN THE CONTROL OF THE ISSUING COURT DURING
THE COURT'S TERM; THEREFORE NATURALIZATION IS SUBJECT TO REVOCATION FOR
FRAUD OR ILLEGAL PROCUREMENT DURING THE TERM OF THE COURT THAT GRANTED
IT.  SO RUNS THE ARGUMENT.  SUCH ABSTRACT REASONING IS MECHANICAL
JURISPRUDENCE IN ITS MOST GLITTERING FORM.   IT DISREGARDS ALL THOSE
DECISIVE CONSIDERATIONS BY WHICH A PROVISION LIKE SEC. 338 DERIVES THE
MEANING OF LIFE FROM THE CONTEXT OF ITS GENERATING FORCES AND ITS
PURPOSES.  IT ALSO DISREGARDS THE CAPRICIOUS AND HAPHAZARD RESULTS THAT
WOULD FLOW FROM APPLYING SUCH AN EMPTY SYLLOGISM TO THE ACTUALITIES OF
JUDICIAL ADMINISTRATION. 

BY GIVING STATE COURTS JURISDICTION IN NATURALIZATION CASES, CONGRESS
EMPOWERED SOME THOUSAND STATE COURT JUDGES TO ADJUDICATE CITIZENSHIP. 
IF THE REQUIREMENTS SPECIFICALLY DEFINED IN SEC. 338 FOR REVOCATION OF
CITIZENSHIP WERE TO BE SUPPLEMENTED BY STATE LAW REGARDING CONTROL OVER
JUDGMENTS BY WAY OF THE "TERM RULE" OR OTHERWISE, THE RETENTION OF
CITIZENSHIP WOULD BE CONTINGENT UPON APPLICATION OF MYRIAD DISCORDANT
RULES BY A THOUSAND JUDGES SCATTERED OVER THE LAND. 

WIDE AND WHIMSICAL DIVERSITIES ARE REVEALED BY THE LOCAL LAW OF THE
FORTY-EIGHT STATES IN THE POWER OF THEIR COURTS TO SET ASIDE LOCAL
JUDGMENTS.  (FN11)  THE COURTS OF SOME STATES HAVE NO POWER TO SET
ASIDE THEIR OWN JUDGMENTS; COURTS IN OTHER STATES HAVE ALMOST UNLIMITED
POWER.  NOT ONLY IS THERE THIS GREAT DIVERSITY AMONG THE STATES.  THERE
ARE CAPRICIOUS DIFFERENCES WITHIN INDIVIDUAL STATES.  THAT CONGRESS,
COMPOSED LARGELY OF LAWYERS, SHOULD HAVE GONE THROUGH THE PROCESS OF
THE ELABORATE DEFINITION IN SEC. 338 BUT IMPLIEDLY ALSO ALLOWED
DENATURALIZATION THROUGH THE ECCENTRICITIES AND ACCIDENTS OF VARIEGATED
STATE PRACTICE, IS AN ASSUMPTION THAT OUGHT TO HAVE A SOLIDER
FOUNDATION THAN AN ABSTRACT SYLLOGISM.  WITHOUT MORE, WE CANNOT BELIEVE
THAT CONGRESS WOULD SUBJECT A NATURALIZED CITIZEN - WHO HAS ACHIEVED
THAT STATUS ONLY BY THE PROTECTING FORMALITIES OF THE NATIONALITY ACT -
TO SUCH UNPREDICTABLE ATTACK.  (FN12) 

FINALLY, IT IS SUGGESTED THAT SINCE SEC. 15 WAS FOUND NOT TO PREVENT
THE TAKING OF APPEALS FROM A NATURALIZATION ORDER, TUTUN V. UNITED
STATES, SUPRA, AND SINCE THERE ARE DIVERSITIES IN THE TIME FOR APPEAL
AMONG STATE COURTS WITH POWER TO NATURALIZE, THE DIVERSITIES AMONG
STATE COURTS IN THE POWER TO VACATE THEIR OWN JUDGMENTS OUGHT NOT TO
REQUIRE RESORT TO SEC. 338 AS THE EXCLUSIVE, UNIFORM PROCEDURE FOR
DENATURALIZATION. 

ONE ANSWER IS THAT THE ACT OF 1906 AND ITS SUCCESSOR, THE NATIONALITY
ACT OF 1940, HAD NO PROVISION WHATEVER AS TO APPELLATE REVIEW OF ERRORS
APPEARING OF RECORD IN A NATURALIZATION COURT.  ON THE OTHER HAND,
CONGRESS LABORIOUSLY DEALT WITH THE REVOCATION OF NATURALIZATION
OBTAINED BY FRAUD OR OTHERWISE ILLEGALLY.  AND SINCE APPELLATE REVIEW
IS SO INGRAINED A PART OF AMERICAN JUSTICE, THIS COURT IN THE TUTUN
CASE NATURALLY HELD THAT IT WAS NOT TO BE ASSUMED THAT CONGRESS DENIED
THE RIGHT OF APPEAL MERELY BECAUSE IT DID NOT AFFIRMATIVELY CONFER IT.
OF COURSE THERE ARE DIFFERENCES AMONG STATE JUDICIARIES AS TO THE TIME
WITHIN WHICH AN APPEAL CAN BE TAKEN.  BUT THE DIFFERENCES ARE WITHIN A
NARROW AND UNIMPORTANT RANGE (FN13) COMPARED WITH THE ENORMOUS AND
QUIXOTIC DIFFERENCES RELATING TO A COURT'S CONTROL OVER ITS JUDGMENTS
ON THE SCORE OF FRAUD OR ILLEGALITY.  IT IS ONE THING TO ALLOW SOME
PLAY FOR THE JOINTS IN A STATUTORY SCHEME LIKE THE NATIONALITY ACT,
ENFORCEABLE BY BOTH STATE AND FEDERAL COURTS.  IT IS QUITE ANOTHER TO
INJECT A WHOLLY DISLOCATING FACTOR BY INCORPORATING THE DIVERSE STATE
RULES FOR VACATING JUDGMENTS INTO THE REVOCATION PROCESS, WHICH
CONGRESS SPECIFICALLY AND COMPREHENSIVELY DEALT WITH IN SEC. 338. 
CONGRESSIONAL CONCERN FOR UNIFORMITY IN POST-NATURALIZATION PROCEEDINGS
WAS SHOWN IN THIS VERY CONNECTION.  THE BILL BEFORE CONGRESS IN 1906
PROVIDED FOR A UNIFORM MODE OF APPEAL TO THE UNITED STATES CIRCUIT
COURTS OF APPEALS FROM NATURALIZATION JUDGMENTS RENDERED BY STATE, AS
WELL AS FEDERAL, COURTS.  H.R. 15442, 59TH CONG., 1ST SESS., SEC. 13. 
CONSTITUTIONAL DOUBTS AND THE PRACTICAL PROBLEMS WHICH SUCH AN
ANOMALOUS PROCEDURE WOULD RAISE LED TO THE OMISSION OF THIS SECTION,
LEAVING APPEAL PROCEDURE TO THE STATES.  40 CONG. REC. 7784-7787.  IT
IS NOT TO BE SUPPOSED, HOWEVER, THAT WHERE, AS WITH DENATURALIZATION,
SUCH DOUBTS AND ANOMALIES WERE NOT PRESENT, CONGRESS WOULD GRATUITOUSLY
ABANDON THE CONSTITUTIONAL MANDATE TO ESTABLISH "AN UNIFORM RULE OF
NATURALIZATION."  IT ESTABLISHED SUCH A RULE IN SEC. 338. 

ACCORDINGLY, THE JUDGMENT BELOW MUST BE REVERSED AND THAT OF THE
DISTRICT COURT REINSTATED.  IT IS SO ORDERED. 

FN1 54 STAT. 1137, 1158, 8 U.S.C. SEC. 738.  THE PERTINENT PORTIONS
OF THE SECTION ARE: 

"(A)  IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT ATTORNEYS
FOR THE RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD CAUSE
THEREFOR, TO INSTITUTE PROCEEDINGS IN ANY COURT SPECIFIED IN SUBSECTION
(A) OF SECTION 301 IN THE JUDICIAL DISTRICT IN WHICH THE NATURALIZED
CITIZEN MAY RESIDE AT THE TIME OF BRINGING SUIT, FOR THE PURPOSE OF
REVOKING AND SETTING ASIDE THE ORDER ADMITTING SUCH PERSON TO
CITIZENSHIP AND CANCELING THE CERTIFICATE OF NATURALIZATION ON THE
GROUND OF FRAUD OR ON THE GROUND THAT SUCH ORDER AND CERTIFICATE OF
NATURALIZATION WERE ILLEGALLY PROCURED. 

"(B)  THE PARTY TO WHOM WAS GRANTED THE NATURALIZATION ALLEGED TO
HAVE BEEN FRAUDULENTLY OR ILLEGALLY PROCURED SHALL, IN ANY SUCH
PROCEEDINGS UNDER SUBSECTION (A) OF THIS SECTION, HAVE SIXTY DAYS'
PERSONAL NOTICE IN WHICH TO MAKE ANSWER TO THE PETITION OF THE UNITED
STATES; AND IF SUCH NATURALIZED PERSON BE ABSENT FROM THE UNITED STATES
OR FROM THE JUDICIAL DISTRICT IN WHICH SUCH PERSON LAST HAD HIS
RESIDENCE, SUCH NOTICE SHALL BE GIVEN BY PUBLICATION IN THE MANNER
PROVIDED FOR THE SERVICE OF SUMMONS BY PUBLICATION OR UPON ABSENTEES BY
THE LAWS OF THE STATE OR THE PLACE WHERE SUCH SUIT IS BROUGHT." 

FN2  SEE EDDY V. SUMMERS, 183 MD. 683, 687, 39 A.2D 812, 814 (1944). 

FN3  AS EARLY AS 1844, A SENATE RESOLUTION CALLED FOR AN INQUIRY INTO
THESE FRAUDS AND INTO THE POSSIBILITY OF A JUDICIAL PROCEDURE FOR
CANCELING FRAUDULENT NATURALIZATION CERTIFICATES.  S.J., 28TH CONG., 2D
SESS. 40, 44.  FOR A SUMMARY OF PRE-CIVIL WAR LEGISLATIVE ACTIVITY IN
REGARD TO NATURALIZATION SEE FRANKLIN, THE LEGISLATIVE HISTORY OF
NATURALIZATION IN THE UNITED STATES.  ANNUAL MESSAGES OF THE
PRESIDENTS, FROM GRANT ONWARD, URGED REMEDIAL LEGISLATION.  RICHARDSON,
MESSAGES AND PAPERS OF THE PRESIDENTS:  GRANT, 1ST ANNUAL MESSAGE,
1869, 6TH ANNUAL MESSAGE, 1874, 7TH ANNUAL MESSAGE, 1875, 8TH ANNUAL
MESSAGE, 1876; ARTHUR, 4TH ANNUAL MESSAGE, 1884; CLEVELAND, 1ST ANNUAL
MESSAGE, 1885, 2D ANNUAL MESSAGE, 1886, 4TH ANNUAL MESSAGE, 1888;
HARRISON, 1ST ANNUAL MESSAGE, 1889, 2D ANNUAL MESSAGE, 1890; ROOSEVELT,
3D ANNUAL MESSAGE, 1903, 4TH ANNUAL MESSAGE, 1904, 5TH ANNUAL MESSAGE,
1905.  GRANT AND CLEVELAND ASSERTED SPECIFICALLY THAT THERE WAS NO WAY
FOR THE GOVERNMENT TO OBTAIN A REVOCATION OF FRAUDULENTLY ACQUIRED
CITIZENSHIP AND ASKED FOR CORRECTION OF THIS DEFICIENCY.  ID., GRANT,
6TH ANNUAL MESSAGE, 1874; CLEVELAND, 1ST ANNUAL MESSAGE, 1885.  BUT
HARRISON CALLED ATTENTION TO A "NEW APPLICATION OF A FAMILIAR EQUITY
JURISDICTION" WHEREBY OVER A HUNDRED NATURALIZATION ORDERS HAD BEEN
VACATED AT THE INSTANCE OF THE ATTORNEY GENERAL BY THE UNITED STATES
CIRCUIT COURTS IN ORIGINAL EQUITY SUITS.  AS HE SAW IT, THE URGENT
REMAINING NEED WAS FOR AN ADEQUATE PRENATURALIZATION INVESTIGATION. 
ID., HARRISON, 2D ANNUAL MESSAGE, 1890. 

IN 1903, A FEDERAL GRAND JURY INVESTIGATED AND A SPECIAL ASSISTANT
UNITED STATES ATTORNEY WAS CHARGED WITH PROSECUTION OF NATURALIZATION
FRAUDS IN NEW YORK CITY.  SEE REP. ATTY. GEN. V, 392 (1903); H.R. DOC.
NO. 46, 59TH CONG., 1ST SESS. 76.  A SPECIAL EXAMINER FOR THE
DEPARTMENT OF JUSTICE MADE A NATIONWIDE INVESTIGATION, A REPORT OF
WHICH WAS TRANSMITTED TO CONGRESS.  SEE REP. ATTY. GEN. 393 (1903). 
SEE GENERALLY ROCHE, PRE-STATUTORY DENATURALIZATION, 35 CORNELL L.Q.
120. 

FN4  SEE, E.G., H.R. DOC. NO. 46, 59TH CONG., 1ST SESS. 11-15, 20-23,
76-78, 79-92; HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON THE BILLS TO ESTABLISH A BUREAU OF NATURALIZATION,
AND TO PROVIDE FOR A UNIFORM RULE FOR THE NATURALIZATION OF ALIENS
THROUGHOUT THE UNITED STATES, 59TH CONG., 1ST SESS. 3-54; H.R. REP. NO.
1789, 59TH CONG., 1ST SESS. 2; S. REP. NO. 4373, 59TH CONG., 1ST SESS.
2; 40 CONG. REC. 3640 FF. 

FN5  THESE PROVISIONS WERE SUGGESTED BY THE SPECIAL COMMISSION ON
NATURALIZATION.  SEE H.R. DOC. NO. 46, 59TH CONG., 1ST SESS 17, 99.  IN
HIS SECOND ANNUAL MESSAGE, PRESIDENT HARRISON HAD RECOMMENDED A WAITING
PERIOD FOR INVESTIGATION.  SEE RICHARDSON, MESSAGES AND PAPERS OF THE
PRESIDENTS, HARRISON, 2D ANNUAL MESSAGE, 1890.  SEE ALSO REP. ATTY.
GEN. 397 (1903) FOR A SIMILAR SUGGESTION FROM THE SPECIAL EXAMINER IN
RELATION TO NATURALIZATION. 

NO SECTION OF THE ACT WAS MORE THOROUGHLY DEBATED THAN THIS ONE. 
THREE SEPARATE AMENDMENTS TO REDUCE THE WAITING PERIOD WERE REJECTED. 
40 CONG. REC. 7762-7770.  THE PERIOD WAS CUT TO THIRTY DAYS IN THE
NATIONALITY ACT OF 1940, 54 STAT. 1137, 1156, 8 U.S.C. SEC. 734(C). 
BUT THE CODIFIERS REITERATED THAT THE PURPOSE OF THE DELAY WAS TO
PERMIT THE GOVERNMENT "TO MAKE FURTHER INQUIRY AS TO THE ELIGIBILITY OF
THE APPLICANT AND THE COMPETENCY OF HIS WITNESSES."  HEARINGS BEFORE
THE HOUSE COMMITTEE ON IMMIGRATION AND NATURALIZATION ON H.R. 6127,
SUPERSEDED BY H.R. 9980, 76TH CONG., 1ST SESS. 466. 

THE OPPORTUNITY FOR INVESTIGATION PROVIDED BY THESE SECTIONS WAS
TAKEN FULL ADVANTAGE OF BY THE BUREAU.  SEE H.R. REP. NO. 1328, 69TH
CONG., 1ST SESS. 1.  INDEED, IN 1926, THE INVESTIGATIONS WERE MADE A
FORMAL PART OF THE NATURALIZATION PROCESS IN THE FEDERAL COURTS BY
PERMITTING OFFICERS OF THE BUREAU TO CONDUCT THE EXAMINATION OF THE
APPLICANT'S WITNESSES PRIOR TO FINAL HEARING ON THE PETITION AND
AUTHORIZING THE NATURALIZATION JUDGE TO FOREGO SUCH EXAMINATION ON
FINAL HEARINGS IF THE RECOMMENDATION OF THE BUREAU WAS FAVORABLE.  44
STAT. 709.  THIS PROCEDURE WAS EXTENDED TO STATE NATURALIZATION COURTS
AS WELL IN 1940.  54 STAT. 1137, 1156, 8 U.S.C. SEC. 733. 

FN6  SEE RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS, HARRISON,
2D ANNUAL MESSAGE, 1890.  1,916 FRAUDULENTLY OBTAINED NATURALIZATION
CERTIFICATES WERE CANCELED IN CIVIL PROCEEDINGS IN NEW YORK CITY IN THE
TWO-YEAR PERIOD TO MAY 29, 1905.  H.R. DOC. NO. 46, 59TH CONG., 1ST
SESS. 76; H.R. REP. NO. 1789, 59TH CONG., 1ST SESS. 2. 

FN7  IN THAT CASE, NINE CITIZENSHIP ORDERS WERE REVOKED IN AN EX
PARTE PROCEEDING ON ORAL MOTION OF THE UNITED STATES DISTRICT ATTORNEY,
PURPORTING TO BE MADE AS IN THE COURSE OF THE ORIGINAL PROCEEDINGS,
OVER THREE YEARS AFTER THE ORDERS ADMITTING TO CITIZENSHIP.  THIS
ACTION WAS, HOWEVER, REVERSED ON APPEAL.  SEE ALSO 40 CONG. REC. 7045
WHERE IT IS STATED THAT UPON THE ANNOUNCEMENT BY THE UNITED STATES
DISTRICT ATTORNEY IN SAN FRANCISCO THAT IMMUNITY FROM PROSECUTION WOULD
BE GIVEN TO ANY HOLDER OF A FRAUDULENTLY ACQUIRED CERTIFICATE WHO
SURRENDERED IT FOR CANCELLATION, 204 CERTIFICATES WERE TURNED IN IN THE
FIRST THIRTY DAYS. 

FN8  OBJECTIONS WERE RAISED, ON SIMILAR GROUNDS, TO THE SECTION IN
THE ORIGINAL BILL PROVIDING FOR APPEAL FROM NATURALIZATION ORDERS AND
REQUIRING A STAY OF THE ISSUANCE OF THE CERTIFICATE PENDING APPEAL.  IT
WAS ARGUED THAT A PARTISAN DISTRICT ATTORNEY MIGHT INFLUENCE A CLOSE
ELECTION BY JUDICIOUSLY CHOOSING THE CASES IN WHICH TO APPEAL AND
OBTAIN THE STAY.  40 CONG. REC. 7786. 

FN9  IT DESERVES EMPHASIS THAT WE ARE DEALING HERE WITH THE
REVOCATION OF NATURALIZATION "ON THE GROUND OF FRAUD OR ON THE GROUND
THAT  ...  THE NATURALIZATION WAS ILLEGALLY PROCURED," TO BE
ESTABLISHED OUTSIDE THE RECORD.  WE HAVE NOT BEFORE US, AND THEREFORE
DO NOT DECIDE, THE POWER OF A STATE COURT TO CONTROL ITS NATURALIZATION
JUDGMENT TO THE EXTENT OF CORRECTING SOME CLERICAL ERROR. 

AND, OF COURSE, THE PRESENT CASE DOES NOT TOUCH SITUATIONS WHERE
UNDER STATE LAW A JUDGMENT DOES NOT COME INTO BEING UNTIL A DEFINED
PERIOD OR EVENT AFTER A DECISION IS RENDERED.  COMPARE COMMISSIONER V.
ESTATE OF BEDFORD, 325 U.S. 283, 284-288. 

FN10  54 STAT. 1137, 1156, 8 U.S.C. SEC. 734. 

FN11  THE CONFLICTING VARIETIES OF STATE RULES FOR VACATING JUDGMENTS
ARE ILLUSTRATIVELY SUMMARIZED IN AN APPENDIX, POST, P. 88. 

FN12  THAT CONGRESS WAS NOT INATTENTIVE TO EXISTING VARIATIONS IN
STATE PRACTICE, WHERE IT WISHED TO ABSORB THEM, IS SHOWN BY THE LAST
PORTION OF SEC. 338(B) WHICH READS: 

"  ...  AND IF SUCH NATURALIZED PERSON BE ABSENT FROM THE UNITED
STATES OR FROM THE JUDICIAL DISTRICT IN WHICH SUCH PERSON LAST HAD HIS
RESIDENCE, SUCH NOTICE SHALL BE GIVEN BY PUBLICATION IN THE MANNER
PROVIDED FOR THE SERVICE OF SUMMONS BY PUBLICATION OR UPON ABSENTEES BY
THE LAWS OF THE STATE OR THE PLACE WHERE SUCH SUIT IS BROUGHT." 

FN13  VAGARIES AMONG THE STATES AS TO TIME FOR APPEALS ARE NOT
SUBSTANTIAL.  THE TIMES FOR APPEAL FIXED BY STATES RANGE PRINCIPALLY
FROM THIRTY DAYS TO THREE MONTHS.  SEE POUND, APPELLATE PROCEDURE IN
CIVIL CASES, 340-342. 

MR. JUSTICE CLARK AND MR. JUSTICE MINTON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

FOR DISSENTING OPINION OF MR. JUSTICE REED, JOINED BY MR. JUSTICE
BURTON, SEE POST, P. 92. 

                                    APPENDIX. 

                 POWER OF STATE COURTS TO VACATE THEIR OWN

                                 JUDGMENTS  (FN1) 

THE DIVERSITIES IN STATE RULES GOVERNING THE POWER TO VACATE
JUDGMENTS ARE ILLUSTRATED BY THE FOLLOWING: 

(1)  THE COMMON LAW RULE, STILL FOLLOWED BY MANY STATES, INCLUDING
MARYLAND, IS THAT FOR THE DURATION OF THE TERM IN WHICH THE JUDGMENT IS
ENTERED THE COURT MAY ENTERTAIN A MOTION TO CHANGE IT.  (FN2)  THIS
"TERM RULE" INEVITABLY WOULD PRODUCE ERRATIC RESULTS AS TO
NATURALIZATION:  (FN3)

(A)  STATES DIFFER VERY SUBSTANTIALLY IN THE LENGTH OF COURT TERMS
SET BY LEGISLATURE OR COURT.  SEE 3 MARTINDALE-HUBBELL LAW DIRECTORY,
"COURT CALENDARS" (1951).  FOR EXAMPLE, IN SEVERAL COUNTIES OF KENTUCKY
THE CIRCUIT COURT HOLDS TERMS OF ONLY SIX DAYS' DURATION; IN CONTRAST,
THE TERMS OF THE OKLAHOMA DISTRICT COURTS ARE SIX MONTHS IN LENGTH. 

(B)  EVEN WITHIN A STATE THE LENGTH OF TERMS MAY VARY GREATLY. 
CONSIDER INDIANA, FOR EXAMPLE.  THE MARION COUNTY (INDIANAPOLIS)
SUPERIOR COURT HAS MONTHLY TERMS; SOME JUDGES OF THE LAKE COUNTY
SUPERIOR COURT HOLD TERMS LASTING FOR SIX MONTHS.  (FN4) 

(C) IN A GOOD MANY STATES THE LENGTH OF TERM MAY FLUCTUATE WITH THE
AMOUNT OF BUSINESS THAT HAPPENS TO BE BEFORE THE COURT, AND WITH THE
UNTRAMMELLED DISCRETION OF A JUDGE IN ADJOURNING SINE DIE.  UNLESS
ADJOURNED SINE DIE OR CONCLUDED BY THE TERMINAL DATE SET BY STATUTE, A
TERM, IN GENERAL, ENDS ONLY AT THE COMMENCEMENT OF THE NEXT SUCCEEDING
TERM HELD AT THE SAME PLACE.  SEE, E.G., COMES V. COMES, 190 IOWA 547,
178 N.W. 403 (1920); HENSLEY V. STATE, 53 OKLA. CR. 22, 3 P.2D 211
(1931).  THUS, A TERM MAY BE LESS THAN A DAY IN LENGTH, OR IT MIGHT BE
A FULL YEAR WHERE THE COURT HAS ONLY ONE PRESCRIBED TERM ANNUALLY. 

(D)  THERE IS AN INHERENT UNCERTAINTY IN THE "TERM RULE."  CONSIDER A
COURT WITH A PRESCRIBED OR PERMITTED TERM OF TEN MONTHS.  E.G., RHODE
ISLAND SUPERIOR COURT IN PROVIDENCE, R.I. GEN. LAWS, 1938, C. 498, SEC.
2.  A CITIZENSHIP OBTAINED BY NATURALIZATION ON THE FIRST DAY OF THE
TERM MIGHT BE VACATED AT ANY TIME WITHIN 10 MONTHS - UNDER THE
REASONING OF THE GOVERNMENT; WHEREAS THE ALIEN FORTUNATE ENOUGH TO BE
NATURALIZED ON THE LAST DAY OF THE TERM WOULD HAVE CITIZENSHIP
INDEFEASIBLY EXCEPT BY THE SAFEGUARDED PROCEDURE OF SEC. 338. 

(2)  A NUMBER OF STATES HAVE STATUTES SIMILAR TO THAT OF ALABAMA
READING:  "THE CIRCUIT COURTS ...  SHALL BE OPEN FOR THE TRANSACTION OF
ANY AND ALL BUSINESS, OR JUDICIAL PROCEEDINGS OF EVERY KIND, AT ALL
TIMES."  ALA. CODE, 1940, TIT. 13, SEC. 114.  IN THOSE STATES WIDE
DISPARITY IN THE TIME WITHIN WHICH A JUDGMENT MAY BE VACATED IS
INTRODUCED BY THE FOLLOWING CIRCUMSTANCES: 

(A)  SOME OF THESE STATES PROVIDE BY STATUTE THAT A COURT HAS CONTROL
OF ITS JUDGMENTS AND MAY VACATE THEM WITHIN SOME FIXED TIME; THE TIMES
VARY GREATLY: 

ONE YEAR: 

MINNESOTA - MINN. STAT., 1949, SEC. 544.32. 

60 DAYS: 

KENTUCKY (COURTS IN CONTINUOUS SESSION) - KY. REV. STAT., 1946, SEC.
451.130(1). 

30 DAYS: 

ALABAMA - ALA. CODE, 1940, TIT. 13, SEC. 119. 

ILLINOIS - ILL. REV. STAT., 1949, C. 77, SEC. 82. 

MARYLAND (BALTIMORE CITY COURT) - SEE HARVEY V. SLACUM, 181 MD. 206,
29 A.2D 276 (1942). 

NEW MEXICO - N.M. STAT., 1941, SEC. 19-901. 

(B)  OTHER STATES PROVIDE THAT ONLY THE MOTION FOR SETTING ASIDE THE
JUDGMENT NEED BE FILED WITHIN A FIXED PERIOD; THE LENGTH OF THESE
PERIODS ALSO VARIES CONSIDERABLY: 

"A REASONABLE TIME NOT EXCEEDING SIX MONTHS:" 

ARIZONA - ARIZ. CODE ANN., 1939, SEC. 21-1502. 

CALIFORNIA - DEERING'S CAL. CODE CIV. PROC., 1949, SEC. 473. 

6 MONTHS:    NEVADA - SEE LAUER V. EIGHTH JUDICIAL DISTRICT COURT, 62
NEV. 78, 140 P.2D 953 (1943). 

(C)  AT ANY RATE EITHER THE FIXED PERIOD OR THE REASONABLE TIME FOR
VACATING JUDGMENTS PRODUCES QUITE DIFFERENT RESULTS FROM THE ERRATIC
CONSEQUENCES OF THE "TERM RULE." 

(3)  IN SOME STATES, IT APPEARS, A COURT HAS NO CONTROL OVER ITS
JUDGMENTS AFTER THEY ARE SIGNED AND ENTERED.  SEE, E.G., LOUISIANA BANK
V. HAMPTON, 4 MART.  94 (LA. 1816); NELSON & CO. V. ROCQUET & CO., 123
LA. 91, 48 SO. 756 (1909).  IN MASSACHUSETTS A COURT HAS NO
JURISDICTION TO VACATE A JUDGMENT "ON MERE MOTION" EXCEPT FOR CLERICAL
ERROR.  SHAWMUT COMMERCIAL PAPER CO. V. CRAM, 212 MASS. 108, 98 N.E.
696 (1912).  BUT SEE MASS. GEN. LAWS, 1932, C. 250, SECS. 14-20.    FN1
IT IS HARDLY NECESSARY TO NOTE THAT THE BEST EFFORT TO SECURE
FASTIDIOUS ACCURACY AND CURRENCY IN SUCH MATTERS AS THE LOCAL RULES
HERE SUMMARIZED CANNOT ASSURE THEM.  THE INTERPRETATION OF LOCAL LAW,
ESPECIALLY AS TO PRACTICE, IS TREACHEROUS BUSINESS FOR AN OUTSIDER. 
THE VERY UNCERTAINTY OF THE LOCAL RULES MAKES IT ALL THE MORE UNLIKELY
THAT CONGRESS INTENDED TO SUBJECT CITIZENSHIP BY NATURALIZATION TO SUCH
ATTACK. 

OF COURSE ONLY STATE COURTS WITH POWER TO NATURALIZE, THAT IS,
"HAVING A SEAL, A CLERK, AND JURISDICTION IN ACTIONS AT LAW OR EQUITY,
OR LAW AND EQUITY, IN WHICH THE AMOUNT IN CONTROVERSY IS UNLIMITED," 54
STAT. 1137, 1140, 8 U.S.C. SEC. 701(A), ARE HERE CANVASSED. 

A GREAT MANY STATES PROVIDE PROCEDURES - STATUTORY OR COMMON LAW -
FOR VACATING JUDGMENTS BY A SEPARATE PROCEEDING IN THE NATURE OF AN
EQUITY SUIT.  SEE, E.G., KAN. GEN. STAT., 1949, SEC. 60-3007 ET SEQ.
THE GOVERNMENT IN THIS CASE DOES NOT ARGUE THAT THESE COLLATERAL
PROCEDURES ARE AVAILABLE IN THE FACE OF SEC. 338.  BUT IT IS NOT
OBVIOUS WHY THE ARGUMENT OF IMPLIED STATE CONTROL OVER A STATE JUDGMENT
IS NOT ALSO RELEVANT AS TO THESE STATE METHODS FOR CONTROLLING
JUDGMENTS. 

FN2  THE MEDIEVAL IDEA OF DIVIDING THE CALENDAR YEAR FOR JUDICIAL
PURPOSES INTO TERMS AND VACATIONS DEVELOPED FROM THE NECESSITIES OF
SOWING AND HARVESTING, AND FROM THE DEMANDS OF THE CHURCH FOR RELIGIOUS
PEACE AT CERTAIN SEASONS OF THE YEAR.  SEE 1 REEVES, HISTORY OF ENGLISH
LAW, 191-192; 3 HOLDSWORTH, A HISTORY OF ENGLISH LAW, 674-675. 

FN3  THE STATES USED AS ILLUSTRATION UNDER THIS DIVISION (1) ARE ONLY
THOSE WHICH, AS FAR AS INVESTIGATION DISCLOSES, FOLLOW THE COMMON LAW
"TERM RULE." 

FN4  TEXAS PROVIDES STRIKING ILLUSTRATIONS OF DIVERSITY WITHIN A
SINGLE STATE.  THE TEXAS DISTRICT COURTS VARY GREATLY FROM COUNTY TO
COUNTY IN THE NUMBER OF TERMS PER YEAR AND IN THE SPECIFIED LENGTH OF
THE TERMS; MANY DISTRICT COURTS ARE IN CONTINUOUS SESSION, OTHERS SIT
"TILL FINISHED," AND OTHERS HAVE FIXED TERMS OF 3, 4, 6, 8 OR 10
WEEKS.  THE JUDGMENTS OF CERTAIN DISTRICT COURTS WITH TERMS OF 3 MONTHS
OR LONGER BECOME "AS FINAL  ...  30 DAYS AFTER THE DATE OF JUDGMENT
...  AS IF THE TERM OF COURT HAD EXPIRED."  VERNON'S TEX. CIV. STAT.,
1926, ART. 2092 (30); JOY V. YOUNG, 194 S.W.2D 159 (TEX. CIV. APP.
1946). 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

UPON FILING OF HIS PETITION FOR NATURALIZATION, AN ORDER AND A
CERTIFICATE OF NATURALIZATION WERE ISSUED IMMEDIATELY BY THE CIRCUIT
COURT OF FREDERICK COUNTY, MARYLAND, ON DECEMBER 2, 1943, TO PETITIONER
BINDCZYCK, A SOLDIER IN THE UNITED STATES ARMY.  NATIONALITY ACT OF
1940, SEC. 324, 54 STAT. 1149.  ON THE NEXT DAY HE DISCLAIMED LOYALTY
TO THE UNITED STATES AND STATED HIS DESIRE TO LEAVE THE COUNTRY AFTER
THE WAR. 

SEVEN DAYS AFTER THE NATURALIZATION AND WITHIN THE SAME TERM OF THE
CIRCUIT COURT, THE UNITED STATES FILED IN THE NATURALIZATION PROCEEDING
A MOTION TO VACATE AND SET ASIDE THE ORDER OF NATURALIZATION ON THE
GROUND THAT NEWLY DISCOVERED EVIDENCE SHOWED BINDCZYCK SWORE FALSELY
CONCERNING HIS LOYALTY TOWARD THE UNITED STATES AND ITS DEFENSE. 
BINDCZYCK IN OPEN COURT ADMITTED THE CHARGE.  THEREUPON THE MARYLAND
COURT DIRECTED THAT THE ORDER OF CITIZENSHIP BE VACATED, THE
CERTIFICATE OF NATURALIZATION VOIDED, AND THE CASE RESTORED TO THE
PENDING CALENDAR FOR IMMEDIATE HEARING.  THE RECORD SHOWS NO FURTHER
PROCEEDINGS IN MARYLAND, EITHER BY FURTHER HEARING OR BY APPEAL. 

ON JUNE 15, 1948, WHILE HE WAS IN CUSTODY FOR DEPORTATION, BINDCZYCK
FILED A COMPLAINT IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
PRAYING A DECLARATION THAT HE WAS A CITIZEN OF THE UNITED STATES.  THIS
WAS BASED ON THE CONTENTION THAT THE ORDER VACATING HIS ADMISSION TO
CITIZENSHIP WAS VOID BECAUSE IT HAD BEEN ISSUED WITHOUT COMPLIANCE WITH
SEC. 338 OF THE NATIONALITY ACT OF 1940, SET OUT IN NOTE 1 OF THE
COURT'S OPINION, ANTE, P. 77. 

THE COURT UPHOLDS BINDCZYCK'S CONTENTION.  BY THAT JUDGMENT THE COURT
IN A COLLATERAL PROCEEDING DETERMINES THAT THE VACATION BY THE MARYLAND
COURT OF ITS ORDER AND THE CANCELLATION BY THAT COURT OF THE
CERTIFICATE OF NATURALIZATION ARE VOID BECAUSE THE PROCEEDINGS WERE NOT
TAKEN IN ACCORDANCE WITH THE ABOVE-MENTIONED SEC. 338.  THAT IS, A
STATE COURT WITH THE ALIEN BEFORE IT HAS NO POWER SO TO ACT, ALTHOUGH
IT HAD JURISDICTION TO HEAR HIS APPLICATION AND ENTER AN ORDER FOR HIS
NATURALIZATION.  SEC. 301. 

THE COURT'S JUDGMENT, WE THINK, FLOWS FROM ITS DISREGARD OF A
POSTULATE OF STATUTORY CONSTRUCTION.   THIS IMPORTANT PRINCIPLE IS THAT
NEW LEGISLATION IS TO BE CONSTRUED IN THE SETTING OF EXISTING LAW AND
PRACTICE.  (FN1)  SINCE SOUND METHODS OF STATUTORY INTERPRETATION ARE
IMPORTANT IN THE ADMINISTRATION OF JUSTICE, IT SEEMS WORTHWHILE TO
STATE THE REASONS FOR DISAGREEMENT.  A DISSENT MAY HELP TO AVOID
ANOTHER AND FURTHER DEPARTURE FROM NORMAL STATUTORY INTERPRETATION. 

EVEN THE MOST COMPREHENSIVE LEGISLATION CANNOT BE CONSIDERED AS
THOUGH IT WERE THE ENTIRE BODY OF THE LAW.  THE CONTINUATION OF COURTS
AND PRACTICES IS ASSUMED.  CONGRESS MAY GIVE CONCURRENT JURISDICTION
OVER FEDERAL MATTERS TO BOTH STATE AND FEDERAL COURTS.  OF COURSE, THE
JURISDICTION OF FEDERAL COURTS OVER FEDERAL MATTERS MAY BE MADE
EXCLUSIVE OF ALL OTHER TRIBUNALS BY CONGRESS.  (FN2)  THAT BODY MAY
ALSO, WE ASSUME, PUT LIMITS ON STATE COURT POWERS CONCERNING FEDERAL
RIGHTS.  WHEN CONGRESS GRANTS CONCURRENT JURISDICTION OVER FEDERAL
MATTERS, HOWEVER, SUCH A GRANT OF POWER IS TO BE EXERCISED IN
ACCORDANCE WITH THE NORMAL PRACTICES AND PROCEDURE OF THE RESPECTIVE
COURTS UNLESS SPECIFICALLY OR BY NECESSARY IMPLICATION THE FEDERAL
LEGISLATION REQUIRES SUCH LIMITATION.  (FN3) 

WE HAVE HAD PROVISIONS FOR NATURALIZATION SINCE MARCH 26, 1790. 
(FN4)  THEY HAVE GROWN IN COMPLEXITY THROUGH THE YEARS.  UNDER THE ACT
OF 1906, AS SHOWN BY THE COURT'S OPINION, THE CONGRESS SOUGHT TO REMEDY
THE EVILS OF FRAUDULENT NATURALIZATION AND TO PROTECT THE NEW CITIZEN
AGAINST CANCELLATION OF HIS CERTIFICATE IN AN INCONVENIENT FORUM OR
WITHOUT PROPER NOTICE.  THIS PURPOSE HAS BEEN CARRIED OUT IN THE
PRESENT 1940 ACT PRACTICALLY BY THE SAME WORDS, SO FAR AS THE SECTIONS
HERE INVOLVED ARE CONCERNED.  POWER OVER NATURALIZATION HAS REMAINED IN
BOTH STATE AND FEDERAL COURTS OF GENERAL JURISDICTION.  (FN5) 

THERE IS NOT A SUGGESTION IN THE ACTS OR IN THE LEGISLATIVE HISTORY
THAT, BY THE ENACTMENT OF SEC. 15 OF THE EARLIER ACT OR SEC. 338 OF THE
PRESENT ACT, THE CONGRESS INTENDED TO AFFECT THE POWER WHICH STATE AND
FEDERAL COURTS HAVE TO GRANT NEW TRIALS OR REHEARINGS OR TO SET ASIDE
ORDERS DURING A TERM OR WITHIN SUCH OTHER LIMITED TIME AS STATUTE OR
PRACTICE MAY PRESCRIBE.  SECTION 338 IN PROVIDING A METHOD FOR
"REVOKING AND SETTING ASIDE" THE ORDER AND "CANCELING THE CERTIFICATE"
OF NATURALIZATION REFERS TO THE METHOD OF OVERTURNING A JUDGMENT OF
NATURALIZATION AFTER THE JUDICIAL PROCEDURE REQUIRED FOR THE GRANT IS
AT AN END.  SECTION 338, IN OUR VIEW, COVERS ONLY THOSE NEW CASES WHERE
CIRCUMSTANCES CALL FOR THE GOVERNMENT, IN THE WORDS OF THE SECTION "TO
INSTITUTE PROCEEDINGS IN ANY COURT SPECIFIED IN SUBSECTION (A) OF
NATURALIZED CITIZEN MAY RESIDE AT THE TIME OF BRINGING SUIT."  UNDER
SUBSECTION (B) OF SEC. 338 THE DEFENDANT IS TO "MAKE ANSWER TO THE
PETITION OF THE UNITED STATES."  THIS LANGUAGE IS AIMED AT NEW
LITIGATION, NOT AT STEPS IN A PENDING CASE.  (FN6)  ACTION ON JUDGMENTS
DURING TERM TIME IS A STEP IN A PENDING CASE.  (FN7) 

THE CERTIFICATE OF NATURALIZATION, AS EVIDENCE OF CITIZENSHIP, IS
ISSUED WHEN THE JUDGE SIGNS THE ORDER.  8 CFR (1949 ED.)  SEC.  377.1. 
A SUCCESSFUL APPEAL BY THE GOVERNMENT FROM AN ORDER OF NATURALIZATION
WOULD RESULT IN CANCELLATION OF AN ISSUED CERTIFICATE.  IT IS SETTLED
LAW, HOWEVER, THAT APPEALS ARE ALLOWABLE FROM FEDERAL AND STATE
COURTS.  TUTUN V. UNITED STATES, 270 U.S. 568, 575, NOTE 3, 580.  THIS
CONCLUSION WAS REACHED IN THE FACE OF THE ARGUMENTS THERE ADVANCED THAT
"EXCLUSIVE JURISDICTION" WAS CONFERRED ON THE TRIAL COURTS BY THE ACT
AND THAT A MEANS OF REVIEW WAS GRANTED TO THE UNITED STATES BY SEC.
15.  THE REASON WHICH LED THIS COURT TO ALLOW APPEALS UNDER THE
NATURALIZATION ACT WAS THE SAME REASON THAT SHOULD GUIDE US HERE, THAT
IS, "A DENIAL OF A REVIEW IN NATURALIZATION CASES WOULD ENGRAFT AN
EXCEPTION UPON AN OTHERWISE UNIVERSAL RULE."  P. 579; SEE PP. 578-580. 

THE RULING IN THE TUTUN CASE COMPELS A DISTINCTION SOUGHT TO BE MADE
IN TODAY'S OPINION.  THE COURT NOW HOLDS THAT "SEC.  338 IS THE
EXCLUSIVE PROCEDURE FOR CANCELING CITIZENSHIP ON THE SCORE OF
FRAUDULENT OR ILLEGAL PROCUREMENT BASED ON EVIDENCE OUTSIDE THE
RECORD."  SINCE TUTUN SUSTAINED REVIEW THAT WOULD ON APPEAL SET ASIDE
NATURALIZATION ORDERS AND CANCEL CERTIFICATES ON FACTS OF RECORD, THE
JUDGMENT TODAY DIFFERENTIATES THAT CASE BY MAKING THE EXISTENCE OF
FACTS DEHORS THE RECORD, AT LEAST WHERE THEY AMOUNT TO FRAUD OR ILLEGAL
PROCUREMENT, THE DECISIVE INCIDENT TO BAR STATE ACTION ON REHEARING FOR
NEWLY DISCOVERED EVIDENCE.  WE THINK TODAY'S DECISION DEPARTS FROM THE
REASONING OF THE TUTUN CASE AND ENGRAFTS "AN EXCEPTION UPON AN
OTHERWISE UNIVERSAL RULE." 

THE CERTAINTY THAT NATURALIZATION MAY BE REVOKED BY APPEAL DETERMINES
ANOTHER POINT.  THERE IS A SUGGESTION IN THE COURT'S OPINION, NOT
ELABORATED, THAT CONGRESS INTENDED TO BAR STATE ACTION FOR REHEARING OR
VACATION DURING TERM ON FACTS DEHORS THE RECORD BECAUSE TO DO OTHERWISE
"WOULD GRATUITOUSLY ABANDON THE CONSTITUTIONAL MANDATE TO ESTABLISH 'AN
UNIFORM RULE OF NATURALIZATION.'"  TO ALLOW PROCEDURE TO BE DETERMINED
ACCORDING TO THE PARTICULAR COURT THAT THE ALIEN MIGHT UTILIZE WOULD
NOT VIOLATE THE PRINCIPLE OF UNIFORMITY.  (FN8)  THAT IS THE KIND OF
UNIFORMITY THAT THE TUTUN CASE APPROVES BY IMPLIEDLY ALLOWING APPEALS
UNDER STATE PROCEDURE. 

INTERPRETATION OF A STATUTE BY GOVERNMENT OFFICIALS CHARGED WITH ITS
ADMINISTRATION CARRIES WEIGHT.  (FN9)  A PRACTICE UNDER THAT
INTERPRETATION INCREASES ITS IMPORTANCE.  APPARENTLY THE GOVERNMENT
AVAILS ITSELF OF THE LOCAL METHODS OF DIRECTLY ATTACKING A JUDGMENT OF
NATURALIZATION WITHIN THE TERM, OR WITHIN LIMITED PERIODS UNDER
APPROPRIATE RULES.  (FN10)  THE GOVERNMENT, AND IN THIS BINDCZYCK CASE
THE SERVICE, THUS MAKES CLEAR ITS UNDERSTANDING THAT SEC. 338 DOES NOT
LIMIT THE POWER OF COURTS OVER JUDGMENTS DURING TERM TIME. 

WHEN WE CONSIDER THAT CONGRESS WAS CONCERNED WITH PREVENTING FRAUD
AND ILLEGAL PRACTICES IN NATURALIZATION, THE COURT'S CONCLUSION DOES
NOT SEEM JUSTIFIED.  IT DISREGARDS WELL-ESTABLISHED PRINCIPLES OF
STATUTORY CONSTRUCTION, WITHOUT FURTHERING THE CONGRESSIONAL PURPOSE,
AND PUTS A USELESS BURDEN ON THE GOVERNMENT WITHOUT ANY ULTIMATE
BENEFIT TO THE NATURALIZED CITIZEN.  SUCH A FORMALISTIC APPROACH TO
LEGAL PROBLEMS IS NOT HELPFUL TO THE ADMINISTRATION OF JUSTICE. 

WE THINK THE JUDGMENT SHOULD BE AFFIRMED. 

FN1  SEE UNITED STATES V. SANGES, 144 U.S. 310, 311; CRAWFORD,
STATUTORY CONSTRUCTION (1940), C. XXII; 1 BISHOP ON CRIMINAL LAW (9TH
ED., ZANE & ZOLLMAN, 1923) SEC. 291B.  CF. STARK V. WICKARD, 321 U.S.
288, 309; BURNET V. HARMEL, 287 U.S. 103, 108. 

FN2  FOR EXAMPLES, SEE 28 U.S.C. SECS. 1333, 1334, 1338(A), 1351,
1355, AND 1356. 

FN3  THIS PRINCIPLE WAS ADVERTED TO IN THE SECOND EMPLOYERS'
LIABILITY CASES, 223 U.S. 1, 56, IN THESE WORDS: 

"BECAUSE OF SOME GENERAL OBSERVATIONS IN THE OPINION OF THE SUPREME
COURT OF ERRORS, AND TO THE END THAT THE REMAINING GROUND OF DECISION
ADVANCED THEREIN MAY BE MORE ACCURATELY UNDERSTOOD, WE DEEM IT WELL TO
OBSERVE THAT THERE IS NOT HERE INVOLVED ANY ATTEMPT BY CONGRESS TO
ENLARGE OR REGULATE THE JURISDICTION OF STATE COURTS OR TO CONTROL OR
AFFECT THEIR MODES OF PROCEDURE, BUT ONLY A QUESTION OF THE DUTY OF
SUCH A COURT, WHEN ITS ORDINARY JURISDICTION AS PRESCRIBED BY LOCAL
LAWS IS APPROPRIATE TO THE OCCASION AND IS INVOKED IN CONFORMITY WITH
THOSE LAWS, TO TAKE COGNIZANCE OF AN ACTION TO ENFORCE A RIGHT OF CIVIL
RECOVERY ARISING UNDER THE ACT OF CONGRESS AND SUSCEPTIBLE OF
ADJUDICATION ACCORDING TO THE PREVAILING RULES OF PROCEDURE." 

FN4  ACT OF MARCH 26, 1790, 1 STAT. 103.  SEE STATUTORY HISTORY OF
NATURALIZATION IN THE UNITED STATES, REPORT OF SECRETARY OF STATE,
JANUARY 19, 1904, APPENDED TO REPORT TO THE PRESIDENT OF THE COMMISSION
ON NATURALIZATION, H.R. DOC. NO. 46, 59TH CONG., 1ST SESS., P. 58. 

FN5  ACT TO ESTABLISH A BUREAU OF IMMIGRATION AND NATURALIZATION, 34
STAT. 596, SECS. 3 AND 15; NATIONALITY ACT OF 1940, 54 STAT. 1137,
SECS. 301 AND 338. 

FN6  SEE JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 236: 

"IT DOES NOT FOLLOW THAT CONGRESS MAY NOT AUTHORIZE A DIRECT ATTACK
UPON CERTIFICATES OF CITIZENSHIP IN AN INDEPENDENT PROCEEDING SUCH AS
IS AUTHORIZED BY SEC. 15 OF THE ACT OF 1906."  COMPARE ALSO UNITED
STATES V. NESS, 245 U.S. 319, 326, WHERE THE COURT SPEAKS OF SEC. 15 AS
AFFORDING A REMEDY BY "INDEPENDENT SUIT." 

FN7  "KNOWING THAT THE COURT HAD FULL POWER DURING THE TERM TO VACATE
ITS OWN DECREE, HE TOOK THESE LEASES SUBJECT TO THE POSSIBILITY OF SUCH
VACATING OF THE DECREE."  HENDERSON V. CARBONDALE COAL & COKE CO., 140
U.S. 25, 40; GODDARD V. ORDWAY, 101 U.S. 745, 749-751; ZIMMERN V.
UNITED STATES, 298 U.S. 167.  SEE EDDY V. SUMMERS, 183 MD. 683, 687, 39
A.2D 812, 814.    FN8  HANOVER NATIONAL BANK V. MOYSES, 186 U.S. 181,
189; WRIGHT V. VINTON BANK, 300 U.S. 440, 463, N. 7; FERNANDEZ V.
WIENER, 326 U.S. 340, 359. 

FN9  CF. UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534,
545. 

FN10  SEE, E.G., PETITION OF WELTZIEN, 68 F. SUPP. 1000; UNITED
STATES EX REL. VOLPE V. JORDAN, 161 F.2D 390. 
..END :



UNITED STATES V. WUNDERLICH 342 U.S. 98 


NO. 11.  ARGUED NOVEMBER 6, 1951 - DECIDED NOVEMBER 26, 1951 - 117 CT.
CL. 92, REVERSED. 


UNDER THE STANDARD PROVISION OF A GOVERNMENT CONTRACT THAT ALL
DISPUTES INVOLVING QUESTIONS OF FACT SHALL BE DECIDED BY THE
CONTRACTING OFFICER, WITH THE RIGHT OF APPEAL TO THE HEAD OF THE
DEPARTMENT, "WHOSE DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE
PARTIES THERETO," A FINDING BY THE HEAD OF A DEPARTMENT ON A QUESTION
OF FACT MAY NOT BE SET ASIDE BY THE COURT OF CLAIMS, UNLESS IT WAS
FOUNDED ON FRAUD, ALLEGED AND PROVED.  PP. 98-101. 

(A)  BY FRAUD IS MEANT CONSCIOUS WRONGDOING, AN INTENTION TO CHEAT OR
BE DISHONEST.  P. 100. 

(B)  A FINDING BY THE COURT OF CLAIMS THAT THE DECISION OF THE
DEPARTMENT HEAD WAS "ARBITRARY," "CAPRICIOUS" AND "GROSSLY ERRONEOUS"
IS NOT SUFFICIENT TO JUSTIFY SETTING IT ASIDE.  P. 100. 

UNITED STATES V. WUNDERLICH ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS SET ASIDE A DECISION OF A DEPARTMENT HEAD ON A
QUESTION OF FACT ARISING UNDER A STANDARD-FORM GOVERNMENT CONTRACT. 
117 CT. CL. 92.  THIS COURT GRANTED CERTIORARI.  341 U.S. 924. 
REVERSED, P. 101. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THIS COURT IS AGAIN CALLED UPON TO DETERMINE THE MEANING OF THE
"FINALITY CLAUSE" OF A STANDARD FORM GOVERNMENT CONTRACT.  RESPONDENTS
AGREED TO BUILD A DAM FOR THE UNITED STATES UNDER A CONTRACT CONTAINING
THE USUAL "ARTICLE 15."*  THAT ARTICLE PROVIDES THAT ALL DISPUTES
INVOLVING QUESTIONS OF FACT SHALL BE DECIDED BY THE CONTRACTING
OFFICER, WITH THE RIGHT OF APPEAL TO THE HEAD OF THE DEPARTMENT "WHOSE
DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO." 
DISSATISFIED WITH THE RESOLUTION OF VARIOUS DISPUTES BY THE DEPARTMENT
HEAD, IN THIS INSTANCE THE SECRETARY OF THE INTERIOR, RESPONDENTS
BROUGHT SUIT IN THE COURT OF CLAIMS.  THAT COURT REVIEWED THEIR
CONTENTIONS, AND IN THE ONE CLAIM INVOLVED IN THIS PROCEEDING SET ASIDE
THE DECISION OF THE DEPARTMENT HEAD.  117 CT. CL. 92.  ALTHOUGH THERE
WAS SOME DISPUTE BELOW, THE PARTIES NOW AGREE THAT THE QUESTION DECIDED
BY THE DEPARTMENT HEAD WAS A QUESTION OF FACT.  WE GRANTED CERTIORARI,
341 U.S. 924, TO CLARIFY THE RULE OF THIS COURT WHICH CREATED AN
EXCEPTION TO THE CONCLUSIVENESS OF SUCH ADMINISTRATIVE DECISION. 

*"ARTICLE 15.  DISPUTES.  - EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
IN THIS CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING
UNDER THIS CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER SUBJECT
TO WRITTEN APPEAL BY THE CONTRACTOR WITHIN 30 DAYS TO THE HEAD OF THE
DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE
DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO.  IN
THE MEANTIME THE CONTRACTOR SHALL DILIGENTLY PROCEED WITH THE WORK AS
DIRECTED." 

THE SAME ARTICLE 15 OF A GOVERNMENT CONTRACT WAS BEFORE THIS COURT
RECENTLY, AND WE HELD, AFTER A REVIEW OF THE AUTHORITIES, THAT SUCH
ARTICLE WAS VALID.  UNITED STATES V. MOORMAN, 338 U.S. 457.  NOR WAS
THE MOORMAN CASE ONE OF FIRST IMPRESSION.  CONTRACTS, BOTH GOVERNMENTAL
AND PRIVATE, HAVE BEEN BEFORE THIS COURT IN SEVERAL CASES IN WHICH
PROVISIONS EQUIVALENT TO ARTICLE 15 HAVE BEEN APPROVED AND ENFORCED "IN
THE ABSENCE OF FRAUD OR SUCH GROSS MISTAKE AS WOULD NECESSARILY IMPLY
BAD FAITH, OR A FAILURE TO EXERCISE AN HONEST JUDGMENT  ...  ." 
KIHLBERG V. UNITED STATES, 97 U.S. 398, 402; SWEENEY V. UNITED STATES,
109 U.S. 618, 620; MARTINSBURG & P.R. CO. V. MARCH, 114 U.S. 549, 553;
CHICAGO, S.F.&C.R. CO. V. PRICE, 138 U.S. 185, 195. 

IN RIPLEY V. UNITED STATES, 223 U.S. 695, 704, GROSS MISTAKE IMPLYING
BAD FAITH IS EQUATED TO "FRAUD."  DESPITE THE FACT THAT OTHER WORDS
SUCH AS "NEGLIGENCE," "INCOMPETENCE," "CAPRICIOUSNESS," AND "ARBITRARY"
HAVE BEEN USED IN THE COURSE OF THE OPINIONS, THIS COURT HAS
CONSISTENTLY UPHELD THE FINALITY OF THE DEPARTMENT HEAD'S DECISION
UNLESS IT WAS FOUNDED ON FRAUD, ALLEGED AND PROVED.  SO FRAUD IS IN
ESSENCE THE EXCEPTION.  BY FRAUD WE MEAN CONSCIOUS WRONGDOING, AN
INTENTION TO CHEAT OR BE DISHONEST.  THE DECISION OF THE DEPARTMENT
HEAD, ABSENT FRAUDULENT CONDUCT, MUST STAND UNDER THE PLAIN MEANING OF
THE CONTRACT. 

IF THE DECISION OF THE DEPARTMENT HEAD UNDER ARTICLE 15 IS TO BE SET
ASIDE FOR FRAUD, FRAUD SHOULD BE ALLEGED AND PROVED, AS IT IS NEVER
PRESUMED.  UNITED STATES V. COLORADO ANTHRACITE CO., 225 U.S. 219,
226.  IN THE CASE AT BAR, THERE WAS NO ALLEGATION OF FRAUD.  THERE WAS
NO FINDING OF FRAUD NOR REQUEST FOR SUCH A FINDING.  THE FINDING OF THE
COURT OF CLAIMS WAS THAT THE DECISION OF THE DEPARTMENT HEAD WAS
"ARBITRARY," "CAPRICIOUS," AND "GROSSLY ERRONEOUS."  BUT THESE WORDS
ARE NOT THE EQUIVALENT OF FRAUD, THE EXCEPTION WHICH THIS COURT HAS
HERETOFORE LAID DOWN AND TO WHICH IT NOW ADHERES WITHOUT
QUALIFICATION. 

RESPONDENTS WERE NOT COMPELLED OR COERCED INTO MAKING THE CONTRACT. 
IT WAS A VOLUNTARY UNDERTAKING ON THEIR PART.  AS COMPETENT PARTIES
THEY HAVE CONTRACTED FOR THE SETTLEMENT OF DISPUTES IN AN ARBITRAL
MANNER.  THIS, WE HAVE SAID IN MOORMAN, CONGRESS HAS LEFT THEM FREE TO
DO.  UNITED STATES V. MOORMAN, SUPRA, AT 462.  THE LIMITATION UPON THIS
ARBITRAL PROCESS IS FRAUD, PLACED THERE BY THIS COURT.  IF THE STANDARD
OF FRAUD THAT WE ADHERE TO IS TOO LIMITED, THAT IS A MATTER FOR
CONGRESS. 

SINCE THERE WAS NO PLEADING OF FRAUD, AND NO FINDING OF FRAUD, AND NO
REQUEST FOR SUCH A FINDING, WE ARE NOT DISPOSED TO REMAND THE CASE FOR
ANY FURTHER FINDINGS, AS RESPONDENTS URGE.  WE ASSUME THAT IF THE
EVIDENCE HAD BEEN SUFFICIENT TO CONSTITUTE FRAUD, THE COURT OF CLAIMS
WOULD HAVE SO FOUND.  IN THE ABSENCE OF SUCH FINDING, THE DECISION OF
THE DEPARTMENT HEAD MUST STAND AS CONCLUSIVE, AND THE JUDGMENT IS
REVERSED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED CONCURS, DISSENTING. 

LAW HAS REACHED ITS FINEST MOMENTS WHEN IT HAS FREED MAN FROM THE
UNLIMITED DISCRETION OF SOME RULER, SOME CIVIL OR MILITARY OFFICIAL,
SOME BUREAUCRAT.  WHERE DISCRETION IS ABSOLUTE, MAN HAS ALWAYS
SUFFERED.  AT TIMES IT HAS BEEN HIS PROPERTY THAT HAS BEEN INVADED; AT
TIMES, HIS PRIVACY; AT TIMES, HIS LIBERTY OF MOVEMENT; AT TIMES, HIS
FREEDOM OF THOUGHT; AT TIMES, HIS LIFE.  ABSOLUTE DISCRETION IS A
RUTHLESS MASTER.  IT IS MORE DESTRUCTIVE OF FREEDOM THAN ANY OF MAN'S
OTHER INVENTIONS. 

THE INSTANT CASE REVEALS ONLY A MINOR FACET OF THE AGE-LONG
STRUGGLE.  THE RESULT REACHED BY THE COURT CAN BE RATIONALIZED OR MADE
PLAUSIBLE BY CASTING IT IN TERMS OF CONTRACT LAW:  THE PARTIES NEED NOT
HAVE MADE THIS CONTRACT; THOSE WHO CONTRACT WITH THE GOVERNMENT MUST
TURN SQUARE CORNERS; THE PARTIES WILL BE LEFT WHERE THEIR ENGAGEMENT
BROUGHT THEM.  AND IT MAY BE THAT IN THIS CASE THE EQUITIES ARE WITH
THE GOVERNMENT, NOT WITH THE CONTRACTOR.  BUT THE RULE WE ANNOUNCE HAS
WIDE APPLICATION AND A DEVASTATING EFFECT.  IT MAKES A TYRANT OUT OF
EVERY CONTRACTING OFFICER.  HE IS GRANTED THE POWER OF A TYRANT EVEN
THOUGH HE IS STUBBORN, PERVERSE OR CAPTIOUS.  HE IS ALLOWED THE POWER
OF A TYRANT THOUGH HE IS INCOMPETENT OR NEGLIGENT.  HE HAS THE POWER OF
LIFE AND DEATH OVER A PRIVATE BUSINESS EVEN THOUGH HIS DECISION IS
GROSSLY ERRONEOUS.  POWER GRANTED IS SELDOM NEGLECTED. 

THE PRINCIPLE OF CHECKS AND BALANCES IS A HEALTHY ONE.  AN OFFICIAL
WHO IS ACCOUNTABLE WILL ACT MORE PRUDENTLY.  A CITIZEN WHO HAS AN
APPEAL TO A BODY INDEPENDENT OF THE CONTROVERSY HAS PROTECTION AGAINST
PASSION, OBSTINACY, IRRATIONAL CONDUCT, AND INCOMPETENCY OF AN
OFFICIAL.  THE OPINION BY JUDGE MADDEN IN THIS CASE EXPRESSES A
REVULSION TO ALLOWING ONE MAN AN UNCONTROLLED DISCRETION OVER ANOTHER'S
FISCAL AFFAIRS.  WE SHOULD ALLOW THE COURT OF CLAIMS, THE AGENCY CLOSE
TO THESE DISPUTES, TO REVERSE AN OFFICIAL WHOSE CONDUCT IS PLAINLY OUT
OF BOUNDS WHETHER HE IS FRAUDULENT, PERVERSE, CAPTIOUS, INCOMPETENT OR
JUST PALPABLY WRONG.  THE RULE WE ANNOUNCE MAKES GOVERNMENT
OPPRESSIVE.  THE RULE THE COURT OF CLAIMS ESPOUSES GIVES A CITIZEN
JUSTICE EVEN AGAINST HIS GOVERNMENT. 

MR. JUSTICE JACKSON, DISSENTING. 

IT IS APPARENT THAT THE COURT OF CLAIMS, WHICH DEALS WITH MANY SUCH
CASES WHILE WE DEAL WITH FEW, HAS REACHED A CONCLUSION THAT CONTRACTING
OFFICERS AND HEADS OF DEPARTMENTS SOMETIMES ARE ABUSING THE POWER OF
DECIDING THEIR OWN LAWSUITS WHICH THESE CONTRACT PROVISIONS GIVE TO
THEM.  IT ALSO IS APPARENT THAT THE COURT OF CLAIMS DOES NOT BELIEVE
THAT OUR DECISION IN UNITED STATES V. MOORMAN, 338 U.S. 457, COMPLETELY
CLOSED THE DOOR TO JUDICIAL RELIEF FROM ARBITRARY ACTION UNLESS IT ALSO
IS FRAUDULENT IN THE SENSE OF "CONSCIOUS WRONGDOING, AN INTENTION TO
CHEAT OR BE DISHONEST."  NOR COULD I HAVE BELIEVED IT. 

GRANTED THAT THESE CONTRACTS ARE LEGAL, IT SHOULD NOT FOLLOW THAT ONE
WHO TAKES A PUBLIC CONTRACT PUTS HIMSELF WHOLLY IN THE POWER OF
CONTRACTING OFFICERS AND DEPARTMENT HEADS.  WHEN WE RECENTLY REPEATED
IN MOORMAN THAT THEIR DECISIONS WERE "'CONCLUSIVE, UNLESS IMPEACHED ON
THE GROUND OF FRAUD, (OR SUCH GROSS MISTAKE AS NECESSARILY IMPLIED BAD
FAITH,)'" ID., AT 461, I SUPPOSED THAT WE MEANT THAT PART OF THE
RESERVATION INCLUDED IN PARENTHESES.  TODAY'S DECISION SEEMS NOT ONLY
TO READ THAT OUT OF THE MOORMAN DECISION, BUT ALSO TO ADD AN
EXCEEDINGLY RIGID MEANING TO THE WORD "FRAUD." 

UNDOUBTEDLY CONTRACTING PARTIES CAN AGREE TO PUT DECISION OF THEIR
DISPUTES IN THE HANDS OF ONE OF THEM.  BUT ONE WHO UNDERTAKES TO ACT AS
A JUDGE IN HIS OWN CASE OR, WHAT AMOUNTS TO THE SAME THING, IN THE CASE
OF HIS OWN DEPARTMENT, SHOULD BE UNDER SOME FIDUCIARY OBLIGATION TO THE
POSITION WHICH HE ASSUMES.  HE IS NOT AT LIBERTY TO MAKE ARBITRARY OR
RECKLESS USE OF HIS POWER, NOR TO DISREGARD EVIDENCE, NOR TO SHIELD HIS
DEPARTMENT FROM CONSEQUENCES OF ITS OWN BLUNDERS AT THE EXPENSE OF
CONTRACTORS.  HE IS SOMEWHAT IN THE POSITION OF THE LAWYER DEALING WITH
HIS CLIENT OR THE DOCTOR WITH HIS PATIENT, FOR THE SUPERIORITY OF HIS
POSITION IMPOSES RESTRAINTS APPROPRIATE TO THE TRUST.  THOUGH THE
CONTRACTOR MAY HAVE COVENANTED TO BE SATISIFED WITH WHAT HIS ADVERSARY
RENDERS TO HIM, IT MUST BE TRUE THAT HE WHO BARGAINS TO BE MADE JUDGE
OF HIS OWN CAUSE ASSUMES AN IMPLIED OBLIGATION TO DO JUSTICE.  THIS
DOES NOT MEAN THAT EVERY PETTY DISAGREEMENT SHOULD BE READJUDGED, BUT
THAT THE COURTS SHOULD HOLD THE ADMINISTRATIVE OFFICERS TO THE OLD BUT
VANISHING STANDARD OF GOOD FAITH AND CARE. 

I THINK THAT WE SHOULD ADHERE TO THE RULE THAT WHERE THE DECISION OF
THE CONTRACTING OFFICER OR DEPARTMENT HEAD SHOWS "SUCH GROSS MISTAKE AS
NECESSARILY TO IMPLY BAD FAITH" THERE IS A JUDICIAL REMEDY EVEN IF IT
HAS ITS ORIGIN IN OVERZEAL FOR THE DEPARTMENT, NEGLIGENCE OF THE
DECIDING OFFICIAL, MISREPRESENTATIONS - HOWEVER INNOCENT - BY
SUBORDINATES, PREJUDICE AGAINST THE CONTRACTOR, OR OTHER CAUSES THAT
FALL SHORT OF ACTUAL CORRUPTION.  MEN ARE MORE OFTEN BRIBED BY THEIR
LOYALTIES AND AMBITIONS THAN BY MONEY.  I STILL BELIEVE ONE SHOULD BE
ALLOWED TO HAVE A JUDICIAL HEARING BEFORE HIS BUSINESS CAN BE DESTROYED
BY ADMINISTRATIVE ACTION, ALTHOUGH THE COURT AGAIN THINKS OTHERWISE. 
CF.  EWING V. MYTINGER & CASSELBERRY, 339 U.S. 594, 604. 
..END :









UNITED STATES V. CARIGNAN 342 U.S. 36 


NO. 5.  ARGUED OCTOBER 8, 1951 - DECIDED NOVEMBER 13, 1951 - 185 F.2D
954, AFFIRMED ON OTHER GROUNDS. 


1.  HAVING CONFESSED THAT HE ASSAULTED A WOMAN WITH INTENT TO COMMIT
RAPE, RESPONDENT WAS ARRESTED AND DULY COMMITTED ON THAT CHARGE ON A
FRIDAY.  WHILE IN LAWFUL CUSTODY ON THAT CHARGE, HE WAS QUESTIONED ON
SATURDAY AND MONDAY (BUT NOT ON SUNDAY) ABOUT THE MURDER OF ANOTHER
WOMAN DURING AN ATTEMPT TO COMMIT RAPE; AND HE CONFESSED TO THE MURDER
ON MONDAY, WITHOUT HAVING BEEN ARRESTED, INDICTED OR COMMITTED ON THAT
CHARGE.  THERE WAS NO EVIDENCE OF VIOLENCE, PERSISTENT QUESTIONING OR
DEPRIVATION OF FOOD OR REST.  RESPONDENT WAS TOLD THAT HE DID NOT HAVE
TO MAKE A STATEMENT AND THAT NO PROMISES COULD BE MADE TO HIM IN ONE
WAY OR ANOTHER.  PRIOR TO HIS CONFESSION, HE WAS PERMITTED TO CONSULT
PRIVATELY WITH A PRIEST ON TWO DIFFERENT OCCASIONS.  HELD: ON THE
UNCONTRADICTED FACTS IN THIS RECORD, THE CONFESSION OF MURDER WAS NOT
INADMISSIBLE IN EVIDENCE UNDER THE PRINCIPLES OF MCNABB V. UNITED
STATES, 318 U.S. 332, AND UPSHAW V. UNITED STATES, 335 U.S. 410.  PP.
37-45. 

(A)  SO LONG AS NO COERCIVE METHODS BY THREATS OR INDUCEMENTS TO
CONFESS ARE EMPLOYED, CONSTITUTIONAL REQUIREMENTS DO NOT FORBID POLICE
EXAMINATION IN PRIVATE OF THOSE IN LAWFUL CUSTODY OR THE USE AS
EVIDENCE OF INFORMATION VOLUNTARILY GIVEN.  P. 39. 

(B)  THE MCNABB DOCTRINE WAS NOT INTENDED AS A PENALTY OR SANCTION
FOR VIOLATION OF RULE 5 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 
UNITED STATES V. MITCHELL, 322 U.S. 65.  P. 42. 

(C)  RESPONDENT'S CONFESSION OF MURDER WAS NOT GIVEN DURING UNLAWFUL
DETENTION, BECAUSE HE WAS BEING LAWFULLY DETAINED ON ANOTHER CHARGE
ALTHOUGH HE HAD NOT BEEN ARRESTED FOR OR CHARGED WITH MURDER WHEN THE
CONFESSION OF MURDER WAS MADE.  PP. 43-44. 

(D)  THIS COURT DECLINES TO EXTEND THE MCNABB DOCTRINE TO STATEMENTS
TO POLICE OR WARDENS CONCERNING OTHER CRIMES WHILE PRISONERS ARE
LEGALLY DETAINED ON CRIMINAL CHARGES.  P. 45. 

2.  ISSUES WHICH WERE IN CONTROVERSY IN THE COURT OF APPEALS, BUT
WHICH THAT COURT DID NOT DECIDE, ARE AVAILABLE TO A RESPONDENT IN
CERTIORARI AS GROUNDS FOR AFFIRMANCE OF THE JUDGMENT, EVEN THOUGH THE
RESPONDENT DID NOT PETITION FOR CERTIORARI.  P. 38, N. 1. 

3.  WHEN THE ADMISSIBILITY OF RESPONDENT'S CONFESSION WAS IN ISSUE IN
THE TRIAL COURT, THE JUDGE COMMITTED REVERSIBLE ERROR IN REFUSING TO
PERMIT RESPONDENT TO TESTIFY IN THE ABSENCE OF THE JURY TO FACTS
BELIEVED TO INDICATE THE INVOLUNTARY CHARACTER OF HIS CONFESSION.  P.
38. 

4.  THE FACTS IN THIS RECORD SURROUNDING THE GIVING OF THE CONFESSION
DO NOT NECESSARILY ESTABLISH COERCION, PHYSICAL OR PSYCHOLOGICAL, SO AS
TO RENDER THE CONFESSION INADMISSIBLE.  P. 39. 

UNITED STATES V. CARIGNAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

IN THE DISTRICT COURT FOR THE TERRITORY OF ALASKA, RESPONDENT WAS
CONVICTED OF FIRST DEGREE MURDER IN ATTEMPTING TO PERPETRATE A RAPE AND
WAS SENTENCED TO DEATH.  THE COURT OF APPEALS REVERSED.  185 F.2D 954. 
THIS COURT GRANTED CERTIORARI.  341 U.S. 934.  AFFIRMED ON OTHER
GROUNDS, P. 45. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

RESPONDENT CARIGNAN WAS CONVICTED IN THE DISTRICT COURT FOR THE
TERRITORY OF ALASKA OF FIRST DEGREE MURDER IN ATTEMPTING TO PERPETRATE
A RAPE.  ALASKA COMPILED LAWS ANNOTATED, 1949, SEC. 65-4-1.  HE WAS
SENTENCED TO DEATH.  THE CONVICTION WAS REVERSED BY THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT.  CARIGNAN V. UNITED STATES, 185
F.2D 954.  THE SOLE GROUND OF THE REVERSAL WAS THE ADMISSION OF A
CONFESSION OBTAINED IN A MANNER HELD TO BE CONTRARY TO THE PRINCIPLES
EXPOUNDED BY THIS COURT IN MCNABB V. UNITED STATES, 318 U.S. 332, AND
UPSHAW V. UNITED STATES, 335 U.S. 410. 

THE CASE IS HERE ON WRIT OF CERTIORARI GRANTED ON THE PETITION OF THE
GOVERNMENT.  341 U.S. 934.  THE QUESTION PRESENTED BY THE PETITION WAS
WHETHER IT WAS ERROR TO ADMIT AT THE TRIAL RESPONDENT'S CONFESSION OF
THE MURDER.  THE CONFESSION WAS HELD INADMISSIBLE BECAUSE GIVEN BEFORE
ARREST, INDICTMENT, OR COMMITMENT ON THE MURDER CHARGE.  THE CONFESSION
WAS GIVEN AFTER RESPONDENT HAD BEEN DULY COMMITTED TO JAIL, RULE 5,
FEDERAL RULES OF CRIMINAL PROCEDURE, UNDER A WARRANT WHICH CHARGED THAT
HE HAD, AT A TIME SIX WEEKS AFTER THE MURDER, PERPETRATED AN ASSAULT
WITH INTENT TO RAPE. 

RESPONDENT ADVANCES THREE ADDITIONAL ISSUES TO SUPPORT THE REVERSAL
OF THE CONVICTION BESIDES THE ABOVE POINT ON DETENTION.  FIRST.  ERROR,
IT IS ARGUED, WAS COMMITTED BY THE TRIAL COURT IN ADMITTING THE
CONFESSION BECAUSE IT WAS OBTAINED BY SECRET INTERROGATION AND
PHYCHOLOGICAL PRESSURE BY POLICE OFFICERS.  SECOND.  FURTHER ERROR, IT
IS SAID, FOLLOWED FROM A FAILURE OF THE TRIAL COURT TO SUBMIT TO THE
JURY, AS A QUESTION OF FACT, THE VOLUNTARY OR INVOLUNTARY CHARACTER OF
THE CONFESSION.  THIRD.  ERROR OCCURRED WHEN THE TRIAL COURT REFUSED TO
PERMIT RESPONDENT TO TAKE THE STAND AND TESTIFY IN THE ABSENCE OF THE
JURY TO FACTS BELIEVED TO INDICATE THE INVOLUNTARY CHARACTER OF THE
CONFESSION.  (FN1) 

THE UNITED STATES CONCEDES IN REGARD TO THE THIRD ISSUE THAT THE
BETTER PRACTICE, WHEN ADMISSIBILITY OF A CONFESSION IS IN ISSUE, IS FOR
THE JUDGE TO HEAR A DEFENDANT'S OFFERED TESTIMONY IN THE ABSENCE OF THE
JURY AS TO THE SURROUNDING FACTS.  THEREFORE, THE GOVERNMENT MAKES NO
OBJECTION TO THE REVERSAL OF THE CONVICTION ON THAT GROUND.  WE THINK
IT CLEAR THAT THIS DEFENDANT WAS ENTITLED TO SUCH AN OPPORTUNITY TO
TESTIFY.  AN INVOLUNTARY CONFESSION IS INADMISSIBLE.  WILSON V. UNITED
STATES, 162 U.S. 613, 623.  SUCH EVIDENCE WOULD BE PERTINENT TO THE
INQUIRY ON ADMISSIBILITY AND MIGHT BE MATERIAL AND DETERMINATIVE.  THE
REFUSAL TO ADMIT THE TESTIMONY WAS REVERSIBLE ERROR.  AS THIS ERROR
MAKES NECESSARY A NEW EXAMINATION INTO THE VOLUNTARY CHARACTER OF THE
CONFESSION, THERE IS NO NEED NOW TO PURSUE ON THIS RECORD THE FIRST AND
SECOND ISSUES BROUGHT FORWARD BY RESPONDENT, EXCEPT TO SAY THAT THE
FACTS IN THIS RECORD SURROUNDING THE GIVING OF THE CONFESSION DO NOT
NECESSARILY ESTABLISH COERCION, PHYSICAL OR PHYCHOLOGICAL, SO AS TO
RENDER THE CONFESSION INADMISSIBLE.  THE EVIDENCE ON THE NEW TRIAL WILL
DETERMINE THE NECESSITY FOR OR CHARACTER OF INSTRUCTIONS TO THE JURY ON
THE WEIGHT TO BE ACCORDED THE CONFESSION, IF IT IS ADMITTED IN
EVIDENCE.  CF. UNITED STATES V. LUSTIG, 163 F.2D 85, 88-89.  MCNABB V.
UNITED STATES, 318 U.S. 332, 338, NOTE 5.  SO LONG AS NO COERCIVE
METHODS BY THREATS OR INDUCEMENTS TO CONFESS ARE EMPLOYED,
CONSTITUTIONAL REQUIREMENTS DO NOT FORBID POLICE EXAMINATION IN PRIVATE
OF THOSE IN LAWFUL CUSTODY OR THE USE AS EVIDENCE OF INFORMATION
VOLUNTARILY GIVEN.  (FN2) 

THE FOLLOWING SUMMARY OF THE UNCONTRADICTED FACTS DISCLOSES THE
CIRCUMSTANCES LEADING TO THE CONFESSION.  RESPONDENT CARIGNAN WAS
DETAINED BY THE ANCHORAGE POLICE IN CONNECTION WITH THE SUBSEQUENT
ASSAULT CASE FROM ABOUT 11 A.M., FRIDAY, SEPTEMBER 16, 1949.  HE WAS
IDENTIFIED IN A LINE-UP BY THE VICTIM, AND CONFESSED TO THE ASSAULT. 
AROUND 4 P.M. ON THE SAME DAY HE WAS ARRESTED AND DULY COMMITTED FOR
THE ASSAULT.  HIS TRIAL ON THE ASSAULT CHARGE TOOK PLACE SUBSEQUENT TO
THIS CONFESSION. 

DURING THE TIME BETWEEN HIS DETENTION AND COMMITMENT FOR THE ASSAULT,
RESPONDENT WAS QUESTIONED BY THE POLICE ABOUT THE MURDER WHICH WAS THE
BASIS OF THE CONVICTION NOW UNDER REVIEW.  A WITNESS WHO HAD SEEN THE
MAN INVOLVED IN THE MURDER AND HIS VICTIM TOGETHER AT THE SCENE OF THE
CRIME WAS BROUGHT TO THE POLICE STATION DURING THIS TIME.  FROM A LINE
UP HE PICKED OUT RESPONDENT CARIGNAN AS ONE APPEARING TO BE THE PERSON
THAT HE SAW ON THAT OCCASION.  CARIGNAN DID NOT GIVE ANY INFORMATION
ABOUT HIS ACTIVITIES ON THE DAY THE MURDER WAS COMMITTED. 

THE NIGHT OF FRIDAY, SEPTEMBER 16, CARIGNAN WAS LODGED IN THE CITY
JAIL.  THE NEXT MORNING, SATURDAY, HERRING, THE UNITED STATES MARSHAL,
UNDERTOOK TO QUESTION RESPONDENT IN REGARD TO THE EARLIER CRIME OF
MURDER.  NO EVIDENCE APPEARS OF VIOLENCE, OF PERSISTENT QUESTIONING, OR
OF DEPRIVATION OF FOOD OR REST.  RESPONDENT WAS TOLD THAT HE DID NOT
HAVE TO MAKE A STATEMENT, AND THAT NO PROMISES COULD BE MADE TO HIM ONE
WAY OR ANOTHER.  THERE WERE PCITURES OF CHRIST AND OF VARIOUS SAINTS ON
THE WALLS OF THE OFFICE IN WHICH THE CONVERSATION OCCURRED.  THE
MARSHAL EVIDENTLY SUGGESTED TO HIM THAT HIS MAKER MIGHT THINK MORE OF
HIM IF HE TOLD THE TRUTH ABOUT THE CRIME.  THE EVIDENCE ALSO SHOWS THAT
THE MARSHAL TOLD CARIGNAN THAT HE, THE MARSHAL, HAD BEEN IN AN ORPHAN
ASYLUM AS A YOUTH, AS HAD CARIGNAN.  ON RESPONDENT'S REQUEST A PRIEST
WAS CALLED.  THE ACCUSED TALKED TO THE PRIEST ALONE FOR SOME TIME AND
LATER TOLD THE MARSHAL HE WOULD GIVE HIM A STATEMENT.  AFTER HIS RETURN
TO THE JAIL ABOUT 5 P.M. ON SATURDAY, HE WAS LEFT UNDISTURBED. 

ON SUNDAY HE WAS NOT QUESTIONED, AND ON MONDAY MORNING THE MARSHAL
AGAIN TOOK RESPONDENT OUT OF JAIL AND INTO THE GRAND JURY ROOM IN THE
COURTHOUSE.  UPON THE MARSHAL'S INQUIRY IF HE HAD ANY STATEMENT TO
MAKE, RESPONDENT ANSWERED THAT HE HAD BUT THAT HE WISHED TO SEE THE
PRIEST FIRST. 

AFTER TALKING TO THE PRIEST AGAIN FOR SOME TIME, HE GAVE THE MARSHAL
A WRITTEN STATEMENT.  THE STATEMENT WAS NONCOMMITTAL AS TO THE MURDER
CHARGE.  TWO OTHER POLICE OFFICERS WHO WERE WITH THE MARSHAL AND
CARIGNAN THEN SUGGESTED THAT PERHAPS CARIGNAN WOULD RATHER TALK TO THE
MARSHAL ALONE.  THEY WITHDREW.  THE MARSHAL TOLD CARIGNAN, IN RESPONSE
TO AN INQUIRY, THAT HE HAD BEEN AROUND THAT COURT FOR TWENTY-SEVEN
YEARS AND THAT DURING THAT TIME "THERE HAD BEEN NO HANGING, WHAT WOULD
HAPPEN TO HIM I COULDN'T PROMISE HIM OR ANYONE ELSE."  THERE WAS ALSO
SOME TALK ABOUT MCNEIL ISLAND, THE LOCATION OF THE NEAREST FEDERAL
PENITENTIARY, AND THE MARSHAL SAID, IN REPLY TO A QUESTION OF
CARIGNAN'S, THAT HE, THE MARSHAL, "HAD KNOWN MEN THAT HAD BEEN THERE
AND LEARNED A TRADE AND THAT MADE SOMETHING OF THEIR LIVES."  AFTER A
FEW MOMENTS' FURTHER CONVERSATION CARIGNAN COMPLETED THE WRITTEN
STATEMENT THAT WAS LATER PUT IN EVIDENCE.  IT THEN ADMITTED THE
KILLING. 

WHETHER INVOLUNTARY CONFESSIONS ARE EXCLUDED FROM FEDERAL CRIMINAL
TRIALS ON THE GROUND OF A VIOLATION OF THE FIFTH AMENDMENT'S PROTECTION
AGAINST SELF-INCRIMINATION, (FN3) OR FROM A RULE THAT FORCED
CONFESSIONS ARE UNTRUSTWORTHY, (FN4) THESE UNCONTRADICTED FACTS DO NOT
BAR THIS CONFESSION AS A MATTER OF LAW.  THE CONSTITUTIONAL TEST FOR
ADMISSION OF AN ACCUSED'S CONFESSION IN FEDERAL COURTS FOR A LONG TIME
HAS BEEN WHETHER IT WAS MADE "FREELY, VOLUNTARILY AND WITHOUT
COMPULSION OR INDUCEMENT OF ANY SORT."  (FN5)  HOWEVER, THIS COURT IN
RECENT YEARS HAS ENFORCED A JUDICIALLY CREATED FEDERAL RULE OF
EVIDENCE, TO WHICH THE LABEL "MCNABB RULE" HAS BEEN APPLIED, THAT
CONFESSIONS SHALL BE EXCLUDED IF OBTAINED DURING "ILLEGAL DETENTION DUE
TO FAILURE PROMPTLY TO CARRY A PRISONER BEFORE A COMMITTING MAGISTRATE,
WHETHER OR NOT THE 'CONFESSION IS THE RESULT OF TORTURE, PHYSICAL OR
PSYCHOLOGICAL.'"  (FN6)  VIOLATION OF THE MCNABB RULE, IN THE VIEW OF
THE COURT OF APPEALS, NOT THE ASSERTEDLY INVOLUNTARY CHARACTER OF THE
CONFESSION, CAUSED THAT COURT TO REVERSE THE CONVICTION.  (FN7)  OUR
PROBLEM IN THIS REVIEW IS WHETHER THE MCNABB RULE COVERS THIS
CONFESSION OR, IF NOT, WHETHER THAT RULE OF EVIDENCE SHOULD NOW BE
JUDICIALLY EXTENDED TO THESE FACTS. 

BY UNITED STATES V. MITCHELL, 322 U.S. 65, 70-71, THIS COURT DECIDED
THAT THE MCNABB RULE WAS NOT INTENDED AS A PENALTY OR SANCTION FOR
VIOLATION OF R.S.D.C. SEC. 397, A COMMITMENT STATUTE.  THE SAME
CONCLUSION APPLIES TO RULE 5, FEDERAL RULES OF CRIMINAL PROCEDURE. 
(FN8)  THIS RULE APPLIES TO ALASKA.  RULE 54(A).  SEE UPSHAW V. UNITED
STATES, 335 U.S. 410, 411.  MITCHELL'S CONFESSION, MADE BEFORE
COMMITMENT, BUT ALSO BEFORE HIS DETENTION HAD BEEN ILLEGALLY PROLONGED,
WAS ADMITTED AS EVIDENCE BECAUSE IT WAS NOT ELICITED "THROUGH
ILLEGALITY."  THE ADMISSION THEREFORE, WAS NOT "USE BY THE GOVERNMENT
OF THE FRUITS OF WRONGDOING BY ITS OFFICERS."  UPSHAW V. UNITED STATES,
SUPRA, 413.  (FN9) 

THE MCNABB RULE HAS BEEN STATED THUS: 

"  ...  THAT A CONFESSION IS INADMISSIBLE IF MADE DURING ILLEGAL
DETENTION DUE TO FAILURE PROMPTLY TO CARRY A PRISONER BEFORE A
COMMITTING MAGISTRATE, WHETHER OR NOT THE 'CONFESSION IS THE RESULT OF
TORTURE, PHYSICAL OR PHYCHOLOGICAL  ...  .'"  UPSHAW V. UNITED STATES,
335 U.S. AT 413. 

ONE CANNOT SAY THAT THIS RECORD JUSTIFIES CHARACTERIZATION OF THIS
CONFESSION AS GIVEN DURING UNLAWFUL DETENTION.  RULE 5, FEDERAL RULES
OF CRIMINAL PROCEDURE, DOES NOT APPLY IN TERMS, BECAUSE CARIGNAN WAS
NEITHER ARRESTED FOR NOR CHARGED WITH THE MURDER WHEN THE CONFESSION TO
THAT CRIME WAS MADE.  HE HAD BEEN ARRESTED AND COMMITTED FOR THE
ASSAULT PERPETRATED SIX WEEKS AFTER THE MURDER.  HIS DETENTION,
THEREFORE, WAS LEGAL.  FURTHER, BEFORE THE CONFESSION, THERE WAS BASIS
FOR NO MORE THAN A STRONG SUSPICION THAT CARIGNAN WAS THE MURDERER. 
THAT SUSPICION AROSE FROM A DOUBTFUL IDENTIFICATION BY A PERSON WHO HAD
IN PASSING SEEN A MAN RESEMBLING THE RESPONDENT AT THE SCENE OF THE
MURDER AND FROM A SIMILARITY OF CIRCUMSTANCES BETWEEN THE MURDER AND
THE ASSAULT.  (FN10)  THE POLICE COULD HARDLY BE EXPECTED TO MAKE A
MURDER CHARGE ON SUCH UNCERTAINTIES WITHOUT FURTHER INQUIRY AND
INVESTIGATION.  THIS CASE FALLS OUTSIDE THE REASON FOR THE RULE, I.E.,
TO ABOLISH UNLAWFUL DETENTION.  SUCH DETENTION WAS THOUGHT TO GIVE
OPPORTUNITY FOR IMPROPER PRESSURE BY POLICE BEFORE THE ACCUSED HAD THE
BENEFIT OF THE STATEMENT BY THE COMMISSIONER.  RULE 5(B), SUPRA, NOTE
8.  UPSHAW V. UNITED STATES, SUPRA, 414; MCNABB V. UNITED STATES,
SUPRA, 344.  CARIGNAN HAD RECEIVED THAT INFORMATION AT HIS COMMITMENT
FOR THE ASSAULT. 

ANOTHER EXTENSION OF THE MCNABB RULE WOULD ACCENTUATE THE SHIFT OF
THE INQUIRY AS TO ADMISSIBILITY FROM THE VOLUNTARINESS OF THE
CONFESSION TO THE LEGALITY OF THE ARREST AND RESTRAINT.  COMPLETE
PROTECTION IS AFFORDED THE CIVIL RIGHTS OF AN ACCUSED WHO MAKES AN
INVOLUNTARY CONFESSION OR STATEMENT WHEN SUCH CONFESSION MUST BE
EXCLUDED BY THE JUDGE OR DISREGARDED BY THE JURY UPON PROOF THAT IT IS
NOT VOLUNTARY.  SUCH A JUST AND MERCIFUL RULE PRESERVES THE RIGHTS OF
ACCUSED AND SOCIETY ALIKE.  IT DOES NOT SACRIFICE JUSTICE TO
SENTIMENTALITY.  AN EXTENSION OF A MECHANICAL RULE BASED ON THE TIME OF
A CONFESSION WOULD NOT BE A HELPFUL ADDITION TO THE RULES OF CRIMINAL
EVIDENCE.  WE DECLINE TO EXTEND THE MCNABB FIXED RULE OF EXCLUSION TO
STATEMENTS TO POLICE OR WARDENS CONCERNING OTHER CRIMES WHILE PRISONERS
ARE LEGALLY IN DETENTION ON CRIMINAL CHARGES. 

THE DECISION OF THE COURT OF APPEALS IS MODIFIED AND, AS MODIFIED BY
THIS OPINION, THE JUDGMENT IS AFFIRMED. 

FN1  SINCE THESE ISSUES WERE IN CONTROVERSY BELOW, THEY ARE AVAILABLE
TO RESPONDENT AS GROUNDS FOR AFFIRMANCE OF THE COURT OF APPEALS. 
LANGNES V. GREEN, 282 U.S. 531, 535, 538; UNITED STATES V. CURTISS
WRIGHT CORP., 299 U.S. 304, 330. 

FN2  ZIANG SUNG WAN V. UNITED STATES, 266 U.S. 1, 14; LISENBA V.
CALIFORNIA, 314 U.S. 219, 239; MCNABB V. UNITED STATES, 318 U.S. 332,
346.  CF. HARDY V. UNITED STATES, 186 U.S. 224, 228. 

FN3  BRAM V. UNITED STATES, 168 U.S. 532, 542; POWERS V. UNITED
STATES, 223 U.S. 303, 313. 

FN4  WIGMORE, EVIDENCE (1940 ED.), SEC. 822.  CF. ZIANG SUNG WAN V.
UNITED STATES, 266 U.S. 1, 14. 

FN5  WILSON V. UNITED STATES, 162 U.S. 613, 623. 

FN6  UPSHAW V. UNITED STATES, 335 U.S. 410, 413; MCNABB V. UNITED
STATES, 318 U.S. 332. 

FN7  CARIGNAN V. UNITED STATES, 185 F.2D 954: 

HEALY, CIRCUIT JUDGE: 

"WHAT THE COURT HAS TO DECIDE IS WHETHER THE CIRCUMSTANCES OUTLINED
WERE SUCH AS TO BRING THE CASE WITHIN THE SPIRIT AND INTENT OF RULE 5
AND THE HOLDING OF THE MCNABB DECISION, SUPRA, AS FURTHER EXPOUNDED IN
UPSHAW V. UNITED STATES, 335 U.S. 410,  ...  .  (FN4) 

"FN4  IN THE VIEW OF THE WRITER OF THIS OPINION SOMETHING APPROACHING
PSYCHOLOGICAL PRESSURE, NOT UNMIXED WITH DECEIT, CONTRIBUTED TO THE
EXTRACTION OF THE CONFESSION.  SINCE THE MAJORITY ARE OF A CONTRARY
OPINION THIS POSSIBLE ASPECT HAS NOT BEEN GIVEN WEIGHT IN THE DECISION
TO REVERSE."  P. 958.    BONE, CIRCUIT JUDGE: 

"HOWEVER, I EMPHASIZE THAT MY CONCURRENCE RESTS SOLELY UPON THE FACT
THAT APPELLANT WAS NOT ARRAIGNED PRIOR TO BEING INTERROGATED BY THE
MARSHAL AND PRIOR TO THE MAKING OF THE CONFESSION.  THE EVIDENCE IN
THIS CASE CONVINCES ME THAT THE CONFESSION WAS FREELY MADE AND WAS NOT
THE PRODUCT OF ANY FORM OF PROMISES OR INDUCEMENT THAT WOULD OR SHOULD
VITIATE IT."  P. 961.    SEE ALSO POPE, CIRCUIT JUDGE, DISSENTING, P.
962. 

FN8  FEDERAL RULES OF CRIMINAL PROCEDURE:

 "RULE 5.  PROCEEDINGS BEFORE THE COMMISSIONER. 

"(A)  APPEARANCE BEFORE THE COMMISSIONER.  AN OFFICER MAKING AN
ARREST UNDER A WARRANT ISSUED UPON A COMPLAINT OR ANY PERSON MAKING AN
ARREST WITHOUT A WARRANT SHALL TAKE THE ARRESTED PERSON WITHOUT
UNNECESSARY DELAY BEFORE THE NEAREST AVAILABLE COMMISSIONER OR BEFORE
ANY OTHER NEARBY OFFICER EMPOWERED TO COMMIT PERSONS CHARGED WITH
OFFENSES AGAINST THE LAWS OF THE UNITED STATES.  WHEN A PERSON ARRESTED
WITHOUT A WARRANT IS BROUGHT BEFORE A COMMISSIONER OR OTHER OFFICER, A
COMPLAINT SHALL BE FILED FORTHWITH. 

"(B)  STATEMENT BY THE COMMISSIONER.  THE COMMISSIONER SHALL INFORM
THE DEFENDANT OF THE COMPLAINT AGAINST HIM, OF HIS RIGHT TO RETAIN
COUNSEL AND OF HIS RIGHT TO HAVE A PRELIMINARY EXAMINATION.  HE SHALL
ALSO INFORM THE DEFENDANT THAT HE IS NOT REQUIRED TO MAKE A STATEMENT
AND THAT ANY STATEMENT MADE BY HIM MAY BE USED AGAINST HIM.  THE
COMMISSIONER SHALL ALLOW THE DEFENDANT REASONABLE TIME AND OPPORTUNITY
TO CONSULT COUNSEL AND SHALL ADMIT THE DEFENDANT TO BAIL AS PROVIDED IN
THESE RULES." 

FN9  IN THE MITCHELL CASE, DEFENDANT'S CONFESSION WAS GIVEN AT THE
POLICE STATION BEFORE COMMITMENT, A FEW MINUTES AFTER TWO POLICEMEN HAD
JAILED HIM FOLLOWING HIS ARREST ON A CHARGE OF HOUSEBREAKING AND
LARCENY.  FOR THE PURPOSE OF AIDING IN CLEARING UP A SERIES OF
HOUSEBREAKINGS, MITCHELL'S APPEARANCE FOR COMMITMENT WAS ILLEGALLY
POSTPONED FOR EIGHT DAYS. 

FN10  THE WEAKNESS OF THIS EVIDENCE IS SHOWN BY THE RECORD. 

"Q.  NOW, AT ANY LATER TIME, MR. KEITH, WERE YOU CALLED UPON TO
IDENTIFY ANYONE THAT RESEMBLED THE PERSON THAT YOU SAW, THE MALE PERSON
IN THE GRASS THAT NIGHT? 

"A.  I WAS TAKEN TO THE POLICE STATION AND VIEWED THE LINE-UP. 

"Q.  DO YOU RECALL HOW MANY WERE IN THAT LINE-UP? 

"A.  THERE WAS EITHER FOUR OR FIVE, I DON'T EXACTLY RECOLLECT. 

"Q.  DID YOU PICK OUT SOME PERSON THAT APPEARED TO BE THE PERSON THAT
YOU SAW ON THIS PARTICULAR OCCASION? 

"A.  I DID. 

"Q.  DO YOU SEE ANYONE IN THE COURTROOM TODAY THAT RESEMBLES THE
PARTY THAT YOU SAW THAT NIGHT IN QUESTION? 

"A.  I DO. 

"Q.  WILL YOU POINT HIM OUT? 

"A.  HE IS RIGHT OVER THERE."  R. 120-121. 

     *  *         *         *         * 

"Q.  NOW, WERE YOU ABLE TO REMEMBER THE PERSON YOU SAW THERE SO THAT
WHEN YOU SAW HIM IN THE COURTROOM TODAY YOU WERE ABLE TO RECOGNIZE HIM
AS THE SAME PERSON? 

"A.  I COULDN'T POSITIVELY SWEAR THAT HE IS THE SAME PERSON."  R.
128. 

     *         *         *         *         * 

"Q.  WHEN DID YOU NEXT SEE THE MAN WHOM YOU IDENTIFIED AS THE PERSON
YOU SAW IN THE PARK IN THE GRASS? 

"A. IN THE POLICE LINE-UP. 

"Q.  DID YOU HAVE ANY DIFFICULTY RECOGNIZING HIM AT THAT TIME? 

"A.  WELL, NO. I PICKED HIM OUT AS LOOKING NEARER LIKE THE MAN THAT I
SAW THERE THAN ANY MAN I HAVE SEEN."  R. 130. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
FRANKFURTER JOIN, CONCURRING. 

I AGREE THAT THE JUDGMENT OF CONVICTION WAS PROPERLY SET ASIDE.  BUT
MY REASON STRIKES DEEPER THAN THE ONE ON WHICH THE COURT RESTS ITS
OPINION.  THERE ARE TIME-HONORED POLICE METHODS FOR OBTAINING
CONFESSIONS FROM AN ACCUSED.  ONE IS DETENTION WITHOUT ARRAIGNMENT, THE
PROBLEM WE DEALT WITH IN MCNABB V. UNITED STATES, 318 U.S. 332.  THEN
THE ACCUSED IS UNDER THE EXCLUSIVE CONTROL OF THE POLICE, SUBJECT TO
THEIR MERCY, AND BEYOND THE REACH OF COUNSEL OR OF FRIENDS.  WHAT
HAPPENS BEHIND DOORS THAT ARE OPENED AND CLOSED AT THE SOLE DISCRETION
OF THE POLICE IS A BLACK CHAPTER IN EVERY COUNTRY - THE FREE AS WELL AS
THE DESPOTIC, THE MODERN AS WELL AS THE ANCIENT.  IN THE MCNABB CASE WE
TRIED TO RID THE FEDERAL SYSTEM OF THOSE BREEDING GROUNDS FOR COERCED
CONFESSIONS. 

ANOTHER TIME-HONORED POLICE METHOD FOR OBTAINING CONFESSIONS IS TO
ARREST A MAN ON ONE CHARGE (OFTEN A MINOR ONE) AND USE HIS DETENTION
FOR INVESTIGATING A WHOLLY DIFFERENT CRIME.  THIS IS AN EASY SHORT CUT
FOR THE POLICE.  HOW CONVENIENT IT IS TO MAKE DETENTION THE VEHICLE OF
INVESTIGATION]   THEN THE POLICE CAN HAVE ACCESS TO THE PRISONER DAY
AND NIGHT.  ARRAIGNMENT FOR ONE CRIME GIVES SOME PROTECTION.  BUT WHEN
IT IS A PRETENSE OR USED AS THE DEVICE FOR BREAKING THE WILL OF THE
PRISONER ON LONG, RELENTLESS, OR REPEATED QUESTIONINGS, IT IS
ABHORRENT.  WE SHOULD FREE THE FEDERAL SYSTEM OF THAT DISREPUTABLE
PRACTICE WHICH HAS HONEYCOMBED THE MUNICIPAL POLICE SYSTEM IN THIS
COUNTRY.*  WE SHOULD MAKE ILLEGAL SUCH A PERVERSION OF A "LEGAL"
DETENTION. 

*SEE, FOR EXAMPLE, 29 CITY CLUB BULLETIN OF PORTLAND, OREGON, NO. 7,
JUNE 18, 1948. 

THE RULE I PROPOSE WOULD, OF COURSE, REDUCE THE "EFFICIENCY" OF THE
POLICE.  BUT SO DO THE REQUIREMENTS FOR ARRAIGNMENT, THE PROHIBITION
AGAINST COERCED CONFESSIONS, THE RIGHT TO BAIL, THE JURY TRIAL, AND
MOST OF OUR OTHER PROCEDURAL SAFEGUARDS.  WE IN THIS COUNTRY, HOWEVER,
EARLY MADE THE CHOICE - THAT THE DIGNITY AND PRIVACY OF THE INDIVIDUAL
WERE WORTH MORE TO SOCIETY THAN AN ALL-POWERFUL POLICE. 

WE ARE FRAMING HERE A RULE OF EVIDENCE FOR CRIMINAL TRIALS IN THE
FEDERAL COURTS.  THAT RULE MUST BE DRAWN IN LIGHT NOT OF THE FACTS OF
THE PARTICULAR CASE BUT OF THE SYSTEM WHICH THE PARTICULAR CASE
REFLECTS.  HENCE, THE FACT THAT THE CHARGE ON WHICH THIS RESPONDENT WAS
ARRAIGNED WAS NOT A MINOR ONE NOR ONE EASILY CONCEIVED BY THE POLICE IS
IMMATERIAL.  THE RULE OF EVIDENCE WE ANNOUNCE TODAY GIVES SANCTION TO A
POLICE PRACTICE WHICH MAKES DETENTION THE MEANS OF INVESTIGATION. 
THEREIN LIES ITS VICE.  HENCE, WE DO NOT REACH THE QUESTION WHETHER A
CONFESSION SO OBTAINED VIOLATES THE FIFTH AMENDMENT. 
..END :



















UNITED STATES V. JEFFERS 342 U.S. 48 


NO. 3.  ARGUED OCTOBER 15, 1951 - DECIDED NOVEMBER 13, 1951 - 88 U.S.
APP. D.C. 58, 187 F.2D 498, AFFIRMED. 


1.  WITHOUT A WARRANT FOR SEARCH OR ARREST, BUT WITH REASON TO BELIEVE
THAT RESPONDENT HAD NARCOTICS UNLAWFULLY CONCEALED THERE, OFFICERS
ENTERED THE HOTEL ROOM OF RESPONDENT'S AUNTS, IN THEIR ABSENCE AND IN
THE ABSENCE OF RESPONDENT, SEARCHED IT, AND SEIZED NARCOTICS CLAIMED BY
RESPONDENT.  THE SEARCH AND SEIZURE WERE NOT INCIDENT TO A VALID
ARREST; AND THERE WERE NO EXCEPTIONAL CIRCUMSTANCES TO JUSTIFY THEIR
BEING MADE WITHOUT A WARRANT.  HELD:  THE SEIZURE VIOLATED THE FOURTH
AMENDMENT; AND, ON RESPONDENT'S MOTION, THE NARCOTICS SO SEIZED SHOULD
HAVE BEEN EXCLUDED AS EVIDENCE IN HIS TRIAL FOR VIOLATION OF THE
NARCOTICS LAWS.  PP. 49-54. 

(A)  THAT THE EVIDENCE SEIZED IN THESE CIRCUMSTANCES WAS NOT ON
RESPONDENT'S PREMISES, DID NOT DEPRIVE HIM OF STANDING TO SUPPRESS IT.
PP. 51-52. 

(B)  NOR IS A DIFFERENT RESULT REQUIRED BY THE PROVISION OF 26 U.S.C.
SEC. 3116 THAT "NO PROPERTY RIGHTS SHALL EXIST" IN SUCH CONTRABAND
GOODS.  PP. 52-54. 

2.  SINCE THE EVIDENCE ILLEGALLY SEIZED WAS CONTRABAND, THE
RESPONDENT WAS NOT ENTITLED TO HAVE IT RETURNED TO HIM.  P. 54. 

UNITED STATES V. JEFFERS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

IN THE DISTRICT COURT, RESPONDENT'S MOTION TO SUPPRESS EVIDENCE
SEIZED WITHOUT A WARRANT WAS DENIED AND HE WAS CONVICTED OF VIOLATING
THE NARCOTICS LAWS, 26 U.S.C. SEC.  2553(A) AND 21 U.S.C. SEC. 174. 
THE COURT OF APPEALS REVERSED.  88 U.S. APP. D.C. 58, 187 F.2D 498. 
THIS COURT GRANTED CERTIORARI.  340 U.S. 951.  AFFIRMED, P. 54. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

HERE WE ARE FACED WITH TROUBLESOME QUESTIONS AS TO THE EXCLUSION FROM
EVIDENCE, ON MOTION OF THE ACCUSED, OF CONTRABAND NARCOTICS CLAIMED BY
HIM WHICH WERE SEIZED ON THE PREMISES OF OTHER PERSONS IN THE COURSE OF
A SEARCH WITHOUT A WARRANT.  ON THE BASIS OF THE SEIZED NARCOTICS, THE
ACCUSED, RESPONDENT HERE, WAS CONVICTED OF VIOLATION OF THE NARCOTICS
LAWS, 26 U.S.C. SEC. 2553(A) AND 21 U.S.C. SEC. 174  (FN1)  PRIOR TO
TRIAL THE DISTRICT COURT HAD DENIED RESPONDENT'S MOTION TO SUPPRESS, AS
EVIDENCE AT THE TRIAL, THE PROPERTY SEIZED.  THE COURT OF APPEALS
REVERSED THE CONVICTION BY A DIVIDED COURT, 88 U.S. APP. D.C. 58, 187
F.2D 498.  SINCE A DETERMINATION OF THE QUESTION IS IMPORTANT IN THE
ADMINISTRATION OF CRIMINAL JUSTICE, WE BROUGHT THE CASE HERE.  340 U.S.
951. 

THE EVIDENCE SHOWED THAT ONE ROBERTS CAME TO THE DUNBAR HOTEL IN THE
DISTRICT OF COLUMBIA ON MONDAY, SEPTEMBER 12, 1949, AT ABOUT 3 P.M.,
SOUGHT OUT THE HOUSE DETECTIVE, SCOTT, AND OFFERED HIM $500 TO LET HIM
INTO A ROOM IN THE HOTEL OCCUPIED BY RESPONDENT'S TWO AUNTS, THE MISSES
JEFFRIES.  ROBERTS TOLD SCOTT THAT RESPONDENT HAD "SOME STUFF STASHED"
IN THE ROOM.  THE HOUSE DETECTIVE TOLD ROBERTS TO CALL BACK LATER IN
THE EVENING AND HE WOULD SEE ABOUT IT.  HE THEN IMMEDIATELY REPORTED
THE INCIDENT TO LIEUT.  KARPER, IN CHARGE OF THE NARCOTICS SQUAD OF THE
METROPOLITAN POLICE, WHO CAME TO THE HOTEL ABOUT 4 P.M.  KARPER WENT
WITH SCOTT TO THE ROOM OCCUPIED BY THE MISSES JEFFRIES.  WHEN THERE WAS
NO ANSWER TO THEIR KNOCK ON THE DOOR THE TWO OFFICERS THEN WENT TO THE
ASSISTANT MANAGER AND OBTAINED A KEY TO THE ROOM.  ALTHOUGH NEITHER
OFFICER HAD EITHER A SEARCH OR AN ARREST WARRANT THEY UNLOCKED THE
DOOR, ENTERED THE ROOM AND, IN THE ABSENCE OF THE MISSES JEFFRIES AS
WELL AS THE RESPONDENT, PROCEEDED TO CONDUCT A DETAILED SEARCH
THEREOF.  ON THE TOP SHELF OF A CLOSET THEY DISCOVERED A PASTEBOARD BOX
CONTAINING 19 BOTTLES OF COCAINE, OF WHICH ONLY TWO HAD U.S. TAX STAMPS
ATTACHED, AND ONE BOTTLE OF CODEINE, ALSO WITHOUT STAMPS.  THE BOTTLES
WERE SEIZED AND TAKEN TO SCOTT'S OFFICE, WHERE LIEUT. KARPER TELEPHONED
THE FEDERAL NARCOTICS AGENT AND UPON THE LATTER'S ARRIVAL TURNED THE
SEIZED ARTICLES OVER TO HIM.  RESPONDENT WAS ARRESTED THE FOLLOWING DAY
ON THE CHARGES BEFORE US, AT WHICH TIME HE CLAIMED OWNERSHIP OF THE
NARCOTICS SEIZED. 

IT APPEARED FROM THE EVIDENCE AT THE PRETRIAL HEARING THAT THE MISSES
JEFFRIES HAD GIVEN RESPONDENT A KEY TO THEIR ROOM, THAT HE HAD THEIR
PERMISSION TO USE THE ROOM AT WILL, AND THAT HE OFTEN ENTERED THE ROOM
FOR VARIOUS PURPOSES.  THEY HAD NOT GIVEN HIM PERMISSION TO STORE
NARCOTICS THERE AND HAD NO KNOWLEDGE THAT ANY WERE SO STORED.  THE
HOTEL RECORDS REFLECTED THAT THE ROOM WAS ASSIGNED TO AND PAID FOR BY
THEM ALONE. 

WE AGREE WITH THE COURT OF APPEALS THAT THE SEIZURE WAS MADE IN
VIOLATION OF THE FOURTH AMENDMENT AND ON MOTION OF RESPONDENT ITS
FRUITS SHOULD HAVE BEEN EXCLUDED AS EVIDENCE ON HIS TRIAL. 

THE FOURTH AMENDMENT (FN2) PROHIBITS BOTH UNREASONABLE SEARCHES AND
UNREASONABLE SEIZURES, AND ITS PROTECTION EXTENDS TO BOTH "HOUSES" AND
"EFFECTS."  OVER AND AGAIN THIS COURT HAS EMPHASIZED THAT THE MANDATE
OF THE AMENDMENT REQUIRES ADHERENCE TO JUDICIAL PROCESSES.  SEE WEEKS
V. UNITED STATES, 232 U.S. 383 (1914); AGNELLO V. UNITED STATES, 269
U.S. 20 (1925).  ONLY WHERE INCIDENT TO A VALID ARREST, UNITED STATES
V. RABINOWITZ, 339 U.S. 56 (1950), OR IN "EXCEPTIONAL CIRCUMSTANCES,"
JOHNSON V. UNITED STATES, 333 U.S. 10 (1948), MAY AN EXEMPTION LIE, AND
THEN THE BURDEN IS ON THOSE SEEKING THE EXEMPTION TO SHOW THE NEED FOR
IT, MCDONALD V. UNITED STATES, 335 U.S. 451, 456 (1948).  IN SO DOING
THE AMENDMENT DOES NOT PLACE AN UNDULY OPPRESSIVE WEIGHT ON LAW
ENFORCEMENT OFFICERS BUT MERELY INTERPOSES AN ORDERLY PROCEDURE UNDER
THE AEGIS OF JUDICIAL IMPARTIALITY THAT IS NECESSARY TO ATTAIN THE
BENEFICENT PURPOSES INTENDED.  JOHNSON V. UNITED STATES, SUPRA.
OFFICERS INSTEAD OF OBEYING THIS MANDATE HAVE TOO OFTEN, AS SHOWN BY
THE NUMEROUS CASES IN THIS COURT, TAKEN MATTERS INTO THEIR OWN HANDS
AND INVADED THE SECURITY OF THE PEOPLE AGAINST UNREASONABLE SEARCH AND
SEIZURE. 

THE LAW DOES NOT PROHIBIT EVERY ENTRY, WITHOUT A WARRANT, INTO A
HOTEL ROOM.  CIRCUMSTANCES MIGHT MAKE EXCEPTIONS AND CERTAINLY IMPLIED
OR EXPRESS PERMISSION IS GIVEN TO SUCH PERSONS AS MAIDS, JANITORS OR
REPAIRMEN IN THE PERFORMANCE OF THEIR DUTIES.  BUT HERE THE GOVERNMENT
ADMITS THAT THE SEARCH OF THE HOTEL ROOM, AS TO THE MISSES JEFFRIES,
WAS UNLAWFUL.  THEY WERE NOT EVEN PRESENT WHEN THE ENTRY, SEARCH AND
SEIZURE WERE CONDUCTED; NOR WERE EXCEPTIONAL CIRCUMSTANCES PRESENT TO
JUSTIFY THE ACTION OF THE OFFICERS.  THERE WAS NO QUESTION OF VIOLENCE,
NO MOVABLE VEHICLE WAS INVOLVED, NOR WAS THERE AN ARREST OR IMMINENT
DESTRUCTION, REMOVAL, OR CONCEALMENT OF THE PROPERTY INTENDED TO BE
SEIZED.  IN FACT, THE OFFICERS ADMIT THEY COULD HAVE EASILY PREVENTED
ANY SUCH DESTRUCTION OR REMOVAL BY MERELY GUARDING THE DOOR.  INSTEAD,
IN ENTERING THE ROOM AND MAKING THE SEARCH FOR THE SOLE PURPOSE OF
SEIZING RESPONDENT'S NARCOTICS, THE OFFICERS NOT ONLY PROCEEDED WITHOUT
A WARRANT OR OTHER LEGAL AUTHORITY, BUT THEIR INTRUSION WAS CONDUCTED
SURREPTITIOUSLY AND BY MEANS DENOUNCED AS CRIMINAL. 

THE GOVERNMENT ARGUES, HOWEVER, THAT THE SEARCH DID NOT INVADE
RESPONDENT'S PRIVACY AND THAT HE, THEREFORE, LACKED THE NECESSARY
STANDING TO SUPPRESS THE EVIDENCE SEIZED.  THE SIGNIFICANT ACT, IT
SAYS, IS THE SEIZURE OF THE GOODS OF THE RESPONDENT WITHOUT A WARRANT. 
WE DO NOT BELIEVE THE EVENTS ARE SO EASILY ISOLABLE.  RATHER THEY ARE
BOUND TOGETHER BY ONE SOLE PURPOSE - TO LOCATE AND SEIZE THE NARCOTICS
OF RESPONDENT.  THE SEARCH AND SEIZURE ARE, THEREFORE, INCAPABLE OF
BEING UNTIED.  TO HOLD THAT THIS SEARCH AND SEIZURE WERE LAWFUL AS TO
THE RESPONDENT WOULD PERMIT A QUIBBLIG DISTINCTION TO OVERTURN A
PRINCIPLE WHICH WAS DESIGNED TO PROTECT A FUNDAMENTAL RIGHT.  THE
RESPONDENT UNQUESTIONABLY HAD STANDING TO OBJECT TO THE SEIZURE MADE
WITHOUT WARRANT OR ARREST UNLESS THE CONTRABAND NATURE OF THE NARCOTICS
SEIZED PRECLUDED HIS ASSERTION, FOR PURPOSES OF THE EXCLUSIONARY RULE,
OF A PROPERTY INTEREST THEREIN. 

IT IS URGENTLY CONTENDED BY THE GOVERNMENT THAT NO PROPERTY RIGHTS
WITHIN THE MEANING OF THE FOURTH AMENDMENT EXIST IN THE NARCOTICS
SEIZED HERE, BECAUSE THEY ARE CONTRABAND GOODS IN WHICH CONGRESS HAS
DECLARED THAT "NO PROPERTY RIGHTS SHALL EXIST."  (FN3)  THE GOVERNMENT
MADE THE SAME CONTENTION IN TRUPIANO V. UNITED STATES, 334 U.S. 699
(1948).  SEE BRIEF FOR THE UNITED STATES, PP. 24-45.  THIS COURT
DISPOSED OF THE CONTENTION SAYING: 

"IT FOLLOWS THAT IT WAS ERROR TO REFUSE PETITIONERS' MOTION TO
EXCLUDE AND SUPPRESS THE PROPERTY WHICH WAS IMPROPERLY SEIZED.  BUT
SINCE THIS PROPERTY WAS CONTRABAND, THEY HAVE NO RIGHT TO HAVE IT
RETURNED TO THEM."  334 U.S. AT 710. 

THE SAME SECTION DECLARING THAT "NO PROPERTY RIGHTS SHALL EXIST" IN
CONTRABAND GOODS PROVIDES FOR THE ISSUANCE OF SEARCH WARRANTS "FOR THE
SEIZURE" OF SUCH PROPERTY.  THE GOVERNMENT'S VIEW IN TRUPIANO WAS THAT
THE LATTER PROVISION APPLIES "WHEN THE ENTRY MUST BE MADE TO SEIZE";
BUT NOT "WHERE, AFTER A LAWFUL ENTRY FOR ANOTHER PURPOSE, THE
CONTRABAND PROPERTY IS BEFORE THE EYES OF THE ENFORCING OFFICERS." 
(FN4)  THIS CONSTRUCTION WOULD MAKE IT NECESSARY FOR THE OFFICERS TO
HAVE A SEARCH WARRANT HERE.  WE ARE OF THE OPINION THAT CONGRESS, IN
ABROGATING PROPERTY RIGHTS IN SUCH GOODS, MERELY INTENDED TO AID IN
THEIR FORFEITURE AND THEREBY PREVENT THE SPREAD OF THE TRAFFIC IN DRUGS
RATHER THAN TO ABOLISH THE EXCLUSIONARY RULE FORMULATED BY THE COURTS
IN FURTHERANCE OF THE HIGH PURPOSES OF THE FOURTH AMENDMENT.  SEE IN RE
FRIED, 161 F.2D 453 (1947). 

SINCE THE EVIDENCE ILLEGALLY SEIZED WAS CONTRABAND THE RESPONDENT WAS
NOT ENTITLED TO HAVE IT RETURNED TO HIM.  IT BEING HIS PROPERTY, FOR
PURPOSES OF THE EXCLUSIONARY RULE, HE WAS ENTITLED ON MOTION TO HAVE IT
SUPPRESSED AS EVIDENCE ON HIS TRIAL.  AFFIRMED. 

FN1  "IT SHALL BE UNLAWFUL FOR ANY PERSON TO PURCHASE, SELL,
DISPENSE, OR DISTRIBUTE ANY OF THE DRUGS MENTIONED IN SECTION 2550(A)
EXCEPT IN THE ORIGINAL STAMPED PACKAGE OR FROM THE ORIGINAL STAMPED
PACKAGE; AND THE ABSENCE OF APPROPRIATE TAX-PAID STAMPS FROM ANY OF THE
AFORESAID DRUGS SHALL BE PRIMA FACIE EVIDENCE OF A VIOLATION OF THIS
SUBSECTION BY THE PERSON IN WHOSE POSSESSION SAME MAY BE FOUND; ...
."  26 U.S.C. SEC. 2553(A). 

"IF ANY PERSON FRAUDULENTLY OR KNOWINGLY IMPORTS OR BRINGS ANY
NARCOTIC DRUG INTO THE UNITED STATES OR ANY TERRITORY UNDER ITS CONTROL
OR JURISDICTION, CONTRARY TO LAW, OR ASSISTS IN SO DOING OR RECEIVES,
CONCEALS, BUYS, SELLS OR IN ANY MANNER FACILITATES THE TRANSPORTATION,
CONCEALMENT, OR SALE OF ANY SUCH NARCOTIC DRUG AFTER BEING IMPORTED OR
BROUGHT IN, KNOWING THE SAME TO HAVE BEEN IMPORTED CONTRARY TO LAW,
SUCH PERSON SHALL, UPON CONVICTION, BE FINED NOT MORE THAN $5,000 AND
IMPRISONED FOR NOT MORE THAN TEN YEARS.  WHENEVER ON TRIAL FOR A
VIOLATION OF THIS SECTION THE DEFENDANT IS SHOWN TO HAVE OR TO HAVE HAD
POSSESSION OF THE NARCOTIC DRUG, SUCH POSSESSION SHALL BE DEEMED
SUFFICIENT EVIDENCE TO AUTHORIZE CONVICTION UNLESS THE DEFENDANT
EXPLAINS THE POSSESSION TO THE SATISFACTION OF THE JURY."  21 U.S.C.
SEC. 174. 

FN2  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

FN3  "IT SHALL BE UNLAWFUL TO HAVE OR POSSESS ANY LIQUOR OR PROPERTY
INTENDED FOR USE IN VIOLATING THE PROVISIONS OF THIS PART, OR THE
INTERNAL-REVENUE LAWS, OR REGULATIONS PRESCRIBED UNDER SUCH PART OR
LAWS, OR WHICH HAS BEEN SO USED, AND NO PROPERTY RIGHTS SHALL EXIST IN
ANY SUCH LIQUOR OR PROPERTY.  A SEARCH WARRANT MAY ISSUE AS PROVIDED IN
TITLE XI OF THE ACT OF JUNE 15, 1917, 40 STAT. 228 (U.S.C., TITLE 18,
SECS. 611-633) (SINCE SUPERSEDED BY FED. RULES CRIM. PROC. 41), FOR THE
SEIZURE OF SUCH LIQUOR OR PROPERTY.  NOTHING IN THIS SECTION SHALL IN
ANY MANNER LIMIT OR AFFECT ANY CRIMINAL OR FORFEITURE PROVISION OF THE
INTERNAL-REVENUE LAWS, OR OF ANY OTHER LAW.  THE SEIZURE AND FORFEITURE
OF ANY LIQUOR OR PROPERTY UNDER THE PROVISIONS OF THIS PART, AND THE
DISPOSITION OF SUCH LIQUOR OR PROPERTY SUBSEQUENT TO SEIZURE AND
FORFEITURE, OR THE DISPOSITION OF THE PROCEEDS FROM THE SALE OF SUCH
LIQUOR OR PROPERTY, SHALL BE IN ACCORDANCE WITH EXISTING LAWS OR THOSE
HEREAFTER IN EXISTENCE RELATING TO SEIZURES, FORFEITURES, AND
DISPOSITION OF PROPERTY OR PROCEEDS, FOR VIOLATION OF THE INTERNAL
REVENUE LAWS."  26 U.S.C. SEC. 3116. 

FN4  BRIEF FOR THE UNITED STATES, PP. 35-36. 

THE CHIEF JUSTICE AND MR. JUSTICE REED DISSENT. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



STACK V. BOYLE 342 U.S. 1 


NO. 400.  ARGUED OCTOBER 18, 1951 - DECIDED NOVEMBER 5, 1951 - 192 F.2D
56, JUDGMENT VACATED AND CASE REMANDED. 


1.  THE TWELVE PETITIONERS WERE ARRESTED ON CHARGES OF CONSPIRING TO
VIOLATE THE SMITH ACT, 18 U.S.C. (SUPP. IV) SECS. 371, 2385, AND THEIR
BAIL WAS FIXED INITIALLY IN AMOUNTS VARYING FROM $2,500 TO $100,000. 
SUBSEQUENTLY, THE DISTRICT COURT FIXED BAIL PENDING TRIAL IN THE
UNIFORM AMOUNT OF $50,000 FOR EACH OF THEM.  THEY MOVED TO REDUCE BAIL,
CLAIMING THAT IT WAS "EXCESSIVE" UNDER THE EIGHTH AMENDMENT, AND FILED
SUPPORTING STATEMENTS OF FACT WHICH WERE NOT CONTROVERTED.  THE ONLY
EVIDENCE OFFERED BY THE GOVERNMENT WAS A CERTIFIED RECORD SHOWING THAT
FOUR OTHER PERSONS PREVIOUSLY CONVICTED UNDER THE SMITH ACT IN ANOTHER
DISTRICT HAD FORFEITED BAIL; AND THERE WAS NO EVIDENCE RELATING THEM TO
PETITIONERS.  THE MOTION TO REDUCE BAIL WAS DENIED.  HELD:  BAIL HAS
NOT BEEN FIXED BY PROPER METHODS IN THIS CASE.  PP. 3-7. 

(A)  BAIL SET BEFORE TRIAL AT A FIGURE HIGHER THAN AN AMOUNT
REASONABLY CALCULATED TO FULFILL THE PURPOSE OF ASSURING THE PRESENCE
OF THE DEFENDANT IS "EXCESSIVE" UNDER THE EIGHTH AMENDMENT.  P. 5. 

(B)  THE FIXING OF BAIL BEFORE TRIAL FOR ANY INDIVIDUAL DEFENDANT
MUST BE BASED UPON STANDARDS RELEVANT TO THE PURPOSE OF ASSURING THE
PRESENCE OF THAT DEFENDANT.  RULE 46(C) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE.  P. 5. 

(C)  IF BAIL IN AN AMOUNT GREATER THAN THAT USUALLY FIXED FOR SERIOUS
CHARGES OF CRIMES IS REQUIRED IN THE CASE OF ANY OF THE PETITIONERS,
THAT IS A MATTER TO WHICH EVIDENCE SHOULD BE DIRECTED IN A HEARING, SO
THAT THE CONSTITUTIONAL RIGHTS OF EACH PETITIONER MAY BE PRESERVED.  P.
6. 

2.  AFTER THEIR MOTION TO REDUCE BAIL WAS DENIED, PETITIONERS DID NOT
APPEAL, BUT APPLIED TO THE SAME DISTRICT COURT FOR HABEAS CORPUS.  THIS
WAS DENIED AND THE COURT OF APPEALS AFFIRMED.  HELD: 

(A)  PETITIONERS' REMEDY IS BY MOTION TO REDUCE BAIL, WITH THE RIGHT
OF APPEAL TO THE COURT OF APPEALS.  PP. 6-7. 

(B)  THE ORDER DENYING THE MOTION TO REDUCE BAIL IS APPEALABLE AS A
"FINAL DECISION" OF THE DISTRICT COURT UNDER 28 U.S.C. (SUPP. IV) SEC.
1291.  P. 6. 

(C)  WHILE HABEAS CORPUS IS AN APPROPRIATE REMEDY FOR ONE HELD IN
CUSTODY IN VIOLATION OF THE CONSTITUTION, THE DISTRICT COURT SHOULD
WITHHOLD RELIEF IN THIS COLLATERAL HABEAS CORPUS ACTION WHERE AN
ADEQUATE REMEDY AVAILABLE IN THE CRIMINAL PROCEEDING HAS NOT BEEN
EXHAUSTED.  PP. 6-7. 

(D)  THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO VACATE ITS ORDER
DENYING PETITIONERS' APPLICATIONS FOR WRITS OF HABEAS CORPUS AND TO
DISMISS THE APPLICATIONS WITHOUT PREJUDICE.  P. 7. 

(E)  PETITIONERS MAY MOVE FOR REDUCTION OF BAIL IN THE CRIMINAL
PROCEEDING, SO THAT A HEARING MAY BE HELD FOR THE PURPOSE OF FIXING
REASONABLE BAIL FOR EACH PETITIONER.  P. 7. 

STACK ET AL. V. BOYLE, UNITED STATES MARSHAL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

PETITIONERS' APPLICATIONS FOR HABEAS CORPUS WERE DENIED BY THE
DISTRICT COURT.  THE COURT OF APPEALS AFFIRMED.  192 F.2D 56.  THIS
COURT GRANTS CERTIORARI, POST, P. 4.  JUDGMENT VACATED AND CASE
REMANDED, P. 7. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

INDICTMENTS HAVE BEEN RETURNED IN THE SOUTHERN DISTRICT OF CALIFORNIA
CHARGING THE TWELVE PETITIONERS WITH CONSPIRING TO VIOLATE THE SMITH
ACT, 18 U.S.C. (SUPP. IV) SECS. 371, 2385.  UPON THEIR ARREST, BAIL WAS
FIXED FOR EACH PETITIONER IN THE WIDELY VARYING AMOUNTS OF $2,500,
$7,500, $75,000 AND $100,000.  ON MOTION OF PETITIONER SCHNEIDERMAN
FOLLOWING ARREST IN THE SOUTHERN DISTRICT OF NEW YORK, HIS BAIL WAS
REDUCED TO $50,000 BEFORE HIS REMOVAL TO CALIFORNIA.  ON MOTION OF THE
GOVERNMENT TO INCREASE BAIL IN THE CASE OF OTHER PETITIONERS, AND AFTER
SEVERAL INTERMEDIATE PROCEDURAL STEPS NOT MATERIAL TO THE ISSUES
PRESENTED HERE, BAIL WAS FIXED IN THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA IN THE UNIFORM AMOUNT OF $50,000 FOR EACH
PETITIONER. 

PETITIONERS MOVED TO REDUCE BAIL ON THE GROUND THAT BAIL AS FIXED WAS
EXCESSIVE UNDER THE EIGHTH AMENDMENT.  (FN1)  IN SUPPORT OF THEIR
MOTION, PETITIONERS SUBMITTED STATEMENTS AS TO THEIR FINANCIAL
RESOURCES, FAMILY RELATIONSHIPS, HEALTH, PRIOR CRIMINAL RECORDS, AND
OTHER INFORMATION.  THE ONLY EVIDENCE OFFERED BY THE GOVERNMENT WAS A
CERTIFIED REPORT SHOWING THAT FOUR PERSONS PREVIOUSLY CONVICTED UNDER
THE SMITH ACT IN THE SOUTHERN DISTRICT OF NEW YORK HAD FORFEITED BAIL. 
NO EVIDENCE WAS PRODUCED RELATING THOSE FOUR PERSONS TO THE PETITIONERS
IN THIS CASE.  AT A HEARING ON THE MOTION, PETITIONERS WERE EXAMINED BY
THE DISTRICT JUDGE AND CROSS-EXAMINED BY AN ATTORNEY FOR THE
GOVERNMENT.  PETITIONERS' FACTUAL STATEMENTS STAND UNCONTROVERTED. 

AFTER THEIR MOTION TO REDUCE BAIL WAS DENIED, PETITIONERS FILED
APPLICATIONS FOR HABEAS CORPUS IN THE SAME DISTRICT COURT.  UPON
CONSIDERATION OF THE RECORD ON THE MOTION TO REDUCE BAIL, THE WRITS
WERE DENIED.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED.  192
F.2D 56.  PRIOR TO FILING THEIR PETITION FOR CERTIORARI IN THIS COURT,
PETITIONERS FILED WITH MR. JUSTICE DOUGLAS AN APPLICATION FOR BAIL AND
AN ALTERNATIVE APPLICATION FOR HABEAS CORPUS SEEKING INTERIM RELIEF. 
BOTH APPLICATIONS WERE REFERRED TO THE COURT AND THE MATTER WAS SET
DOWN FOR ARGUMENT ON SPECIFIC QUESTIONS COVERING THE ISSUES RAISED BY
THIS CASE. 

RELIEF IN THIS TYPE OF CASE MUST BE SPEEDY IF IT IS TO BE EFFECTIVE. 
THE PETITION FOR CERTIORARI AND THE FULL RECORD ARE NOW BEFORE THE
COURT AND, SINCE THE QUESTIONS PRESENTED BY THE PETITION HAVE BEEN
FULLY BRIEFED AND ARGUED, WE CONSIDER IT APPROPRIATE TO DISPOSE OF THE
PETITION FOR CERTIORARI AT THIS TIME.  ACCORDINGLY, THE PETITION FOR
CERTIORARI IS GRANTED FOR REVIEW OF QUESTIONS IMPORTANT TO THE
ADMINISTRATION OF CRIMINAL JUSTICE.  (FN2) 

FIRST.  FROM THE PASSAGE OF THE JUDICIARY ACT OF 1789, 1 STAT. 73,
91, TO THE PRESENT FEDERAL RULES OF CRIMINAL PROCEDURE, RULE 46(A)(1),
FEDERAL LAW HAS UNEQUIVOCALLY PROVIDED THAT A PERSON ARRESTED FOR A NON
CAPITAL OFFENSE SHALL BE ADMITTED TO BAIL.  THIS TRADITIONAL RIGHT TO
FREEDOM BEFORE CONVICTION PERMITS THE UNHAMPERED PREPARATION OF A
DEFENSE, AND SERVES TO PREVENT THE INFLICTION OF PUNISHMENT PRIOR TO
CONVICTION.  SEE HUDSON V. PARKER, 156 U.S. 277, 285 (1895).  UNLESS
THIS RIGHT TO BAIL BEFORE TRIAL IS PRESERVED, THE PRESUMPTION OF
INNOCENCE, SECURED ONLY AFTER CENTURIES OF STRUGGLE, WOULD LOSE ITS
MEANING. 

THE RIGHT TO RELEASE BEFORE TRIAL IS CONDITIONED UPON THE ACCUSED'S
GIVING ADEQUATE ASSURANCE THAT HE WILL STAND TRIAL AND SUBMIT TO
SENTENCE IF FOUND GUILTY.  EX PARTE MILBURN, 9 PET. 704, 710 (1835). 
LIKE THE ANCIENT PRACTICE OF SECURING THE OATHS OF RESPONSIBLE PERSONS
TO STAND AS SURETIES FOR THE ACCUSED, THE MODERN PRACTICE OF REQUIRING
A BAIL BOND OR THE DEPOSIT OF A SUM OF MONEY SUBJECT TO FORFEITURE
SERVES AS ADDITIONAL ASSURANCE OF THE PRESENCE OF THE ACCUSED.  BAIL
SET AT A FIGURE HIGHER THAN AN AMOUNT REASONABLY CALCULATED TO FULFILL
THIS PURPOSE IS "EXCESSIVE" UNDER THE EIGHTH AMENDMENT.  SEE UNITED
STATES V. MOTLOW, 10 F.2D 657 (1926, OPINION OF MR. JUSTICE BUTLER AS
CIRCUIT JUDGE OF THE SEVENTH CIRCUIT). 

SINCE THE FUNCTION OF BAIL IS LIMITED, THE FIXING OF BAIL FOR ANY
INDIVIDUAL DEFENDANT MUST BE BASED UPON STANDARDS RELEVANT TO THE
PURPOSE OF ASSURING THE PRESENCE OF THAT DEFENDANT.  THE TRADITIONAL
STANDARDS AS EXPRESSED IN THE FEDERAL RULES OF CRIMINAL PROCEDURE (FN3)
ARE TO BE APPLIED IN EACH CASE TO EACH DEFENDANT.  IN THIS CASE
PETITIONERS ARE CHARGED WITH OFFENSES UNDER THE SMITH ACT AND, IF FOUND
GUILTY, THEIR CONVICTIONS ARE SUBJECT TO REVIEW WITH THE SCRUPULOUS
CARE DEMANDED BY OUR CONSTITUTION.  DENNIS V. UNITED STATES, 341 U.S.
494, 516 (1951).  UPON FINAL JUDGMENT OF CONVICTION, PETITIONERS FACE
IMPRISONMENT OF NOT MORE THAN FIVE YEARS AND A FINE OF NOT MORE THAN
$10,000.  IT IS NOT DENIED THAT BAIL FOR EACH PETITIONER HAS BEEN FIXED
IN A SUM MUCH HIGHER THAN THAT USUALLY IMPOSED FOR OFFENSES WITH LIKE
PENALTIES AND YET THERE HAS BEEN NO FACTUAL SHOWING TO JUSTIFY SUCH
ACTION IN THIS CASE.  THE GOVERNMENT ASKS THE COURTS TO DEPART FROM THE
NORM BY ASSUMING, WITHOUT THE INTRODUCTION OF EVIDENCE, THAT EACH
PETITIONER IS A PAWN IN A CONSPIRACY AND WILL, IN OBEDIENCE TO A
SUPERIOR, FLEE THE JURISDICTION.  TO INFER FROM THE FACT OF INDICTMENT
ALONE A NEED FOR BAIL IN AN UNUSUALLY HIGH AMOUNT IS AN ARBITRARY ACT. 
SUCH CONDUCT WOULD INJECT INTO OUR OWN SYSTEM OF GOVERNMENT THE VERY
PRINCIPLES OF TOTALITARIANISM WHICH CONGRESS WAS SEEKING TO GUARD
AGAINST IN PASSING THE STATUTE UNDER WHICH PETITIONERS HAVE BEEN
INDICTED. 

IF BAIL IN AN AMOUNT GREATER THAN THAT USUALLY FIXED FOR SERIOUS
CHARGES OF CRIMES IS REQUIRED IN THE CASE OF ANY OF THE PETITIONERS,
THAT IS A MATTER TO WHICH EVIDENCE SHOULD BE DIRECTED IN A HEARING SO
THAT THE CONSTITUTIONAL RIGHTS OF EACH PETITIONER MAY BE PRESERVED.  IN
THE ABSENCE OF SUCH A SHOWING, WE ARE OF THE OPINION THAT THE FIXING OF
BAIL BEFORE TRIAL IN THESE CASES CANNOT BE SQUARED WITH THE STATUTORY
AND CONSTITUTIONAL STANDARDS FOR ADMISSION TO BAIL. 

SECOND.  THE PROPER PROCEDURE FOR CHALLENGING BAIL AS UNLAWFULLY
FIXED IS BY MOTION FOR REDUCTION OF BAIL AND APPEAL TO THE COURT OF
APPEALS FROM AN ORDER DENYING SUCH MOTION.  PETITIONERS' MOTION TO
REDUCE BAIL DID NOT MERELY INVOKE THE DISCRETION OF THE DISTRICT COURT
SETTING BAIL WITHIN A ZONE OF REASONABLENESS, BUT CHALLENGED THE BAIL
AS VIOLATING STATUTORY AND CONSTITUTIONAL STANDARDS.  AS THERE IS NO
DISCRETION TO REFUSE TO REDUCE EXCESSIVE BAIL, THE ORDER DENYING THE
MOTION TO REDUCE BAIL IS APPEALABLE AS A "FINAL DECISION" OF THE
DISTRICT COURT UNDER 28 U.S.C. (SUPP. IV) SEC. 1291.   COHEN V.
BENEFICIAL LOAN CORP., 337 U.S. 541, 545-547 (1949).  IN THIS CASE,
HOWEVER, PETITIONERS DID NOT TAKE AN APPEAL FROM THE ORDER OF THE
DISTRICT COURT DENYING THEIR MOTION FOR REDUCTION OF BAIL.  INSTEAD,
THEY PRESENTED THEIR CLAIMS UNDER THE EIGHTH AMENDMENT IN APPLICATIONS
FOR WRITS OF HABEAS CORPUS.  WHILE HABEAS CORPUS IS AN APPROPRIATE
REMEDY FOR ONE HELD IN CUSTODY IN VIOLATION OF THE CONSTITUTION, 28
U.S.C. (SUPP. IV) SEC. 2241(C)(3), THE DISTRICT COURT SHOULD WITHHOLD
RELIEF IN THIS COLLATERAL HABEAS CORPUS ACTION WHERE AN ADEQUATE REMEDY
AVAILABLE IN THE CRIMINAL PROCEEDING HAS NOT BEEN EXHAUSTED.  EX PARTE
ROYALL, 117 U.S. 241 (1886); JOHNSON V. HOY, 227 U.S. 245 (1913). 

THE COURT CONCLUDES THAT BAIL HAS NOT BEEN FIXED BY PROPER METHODS IN
THIS CASE AND THAT PETITIONERS' REMEDY IS BY MOTION TO REDUCE BAIL,
WITH RIGHT OF APPEAL TO THE COURT OF APPEALS.  ACCORDINGLY, THE
JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO
THE DISTRICT COURT WITH DIRECTIONS TO VACATE ITS ORDER DENYING
PETITIONERS' APPLICATIONS FOR WRITS OF HABEAS CORPUS AND TO DISMISS THE
APPLICATIONS WITHOUT PREJUDICE.  PETITIONERS MAY MOVE FOR REDUCTION OF
BAIL IN THE CRIMINAL PROCEEDING SO THAT A HEARING MAY BE HELD FOR THE
PURPOSE OF FIXING REASONABLE BAIL FOR EACH PETITIONER.  IT IS SO
ORDERED. 

FN1  "EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR EXCESSIVE FINES
IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED."  U.S. CONST.,
AMEND. VIII. 

FN2    IN VIEW OF OUR ACTION IN GRANTING AND MAKING FINAL DISPOSITION
OF THE PETITION FOR CERTIORARI, WE HAVE NO OCCASION TO DETERMINE THE
POWER OF A SINGLE JUSTICE OR CIRCUIT JUSTICE TO FIX BAIL PENDING
DISPOSITION OF A PETITION FOR CERTIORARI IN A CASE OF THIS KIND. 

FN3  RULE 46(C).  "AMOUNT.  IF THE DEFENDANT IS ADMITTED TO BAIL, THE
AMOUNT THEREOF SHALL BE SUCH AS IN THE JUDGMENT OF THE COMMISSIONER OR
COURT OR JUDGE OR JUSTICE WILL INSURE THE PRESENCE OF THE DEFENDANT,
HAVING REGARD TO THE NATURE AND CIRCUMSTANCES OF THE OFFENSE CHARGED,
THE WEIGHT OF THE EVIDENCE AGAINST HIM, THE FINANCIAL ABILITY OF THE
DEFENDANT TO GIVE BAIL AND THE CHARACTER OF THE DEFENDANT." 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

BY MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS. 

I THINK THE PRINCIPLES GOVERNING ALLOWANCE OF BAIL HAVE BEEN
MISUNDERSTOOD OR TOO CASUALLY APPLIED IN THESE CASES AND THAT THEY
SHOULD BE RETURNED TO THE CIRCUIT JUSTICE OR THE DISTRICT COURTS FOR
RECONSIDERATION IN THE LIGHT OF STANDARDS WHICH IT IS OUR FUNCTION TO
DETERMINE.  WE HAVE HEARD THE PARTIES ON ONLY FOUR SPECIFIC QUESTIONS
RELATING TO BAIL BEFORE CONVICTION - TWO INVOLVING CONSIDERATIONS OF
LAW AND OF FACT WHICH SHOULD DETERMINE THE AMOUNT OF BAIL, AND TWO
RELATING TO THE PROCEDURE FOR CORRECTING ANY DEPARTURE THEREFROM.  I
CONSIDER FIRST THE PRINCIPLES WHICH GOVERN RELEASE OF ACCUSED PERSONS
UPON BAIL PENDING THEIR TRIAL. 

THE PRACTICE OF ADMISSION TO BAIL, AS IT HAS EVOLVED IN ANGLO
AMERICAN LAW, IS NOT A DEVICE FOR KEEPING PERSONS IN JAIL UPON MERE
ACCUSATION UNTIL IT IS FOUND CONVENIENT TO GIVE THEM A TRIAL.  ON THE
CONTRARY, THE SPIRIT OF THE PROCEDURE IS TO ENABLE THEM TO STAY OUT OF
JAIL UNTIL A TRIAL HAS FOUND THEM GUILTY.  WITHOUT THIS CONDITIONAL
PRIVILEGE, EVEN THOSE WRONGLY ACCUSED ARE PUNISHED BY A PERIOD OF
IMPRISONMENT WHILE AWAITING TRIAL AND ARE HANDICAPPED IN CONSULTING
COUNSEL, SEARCHING FOR EVIDENCE AND WITNESSES, AND PREPARING A
DEFENSE.  TO OPEN A WAY OF ESCAPE FROM THIS HANDICAP AND POSSIBLE
INJUSTICE, CONGRESS COMMANDS ALLOWANCE OF BAIL FOR ONE UNDER CHARGE OF
ANY OFFENSE NOT PUNISHABLE BY DEATH, FED. RULES CRIM. PROC., 46(A)(1)
PROVIDING:  "A PERSON ARRESTED FOR AN OFFENSE NOT PUNISHABLE BY DEATH
SHALL BE ADMITTED TO BAIL  ...  " BEFORE CONVICTION. 

ADMISSION TO BAIL ALWAYS INVOLVES A RISK THAT THE ACCUSED WILL TAKE
FLIGHT.  THAT IS A CALCULATED RISK WHICH THE LAW TAKES AS THE PRICE OF
OUR SYSTEM OF JUSTICE.  WE KNOW THAT CONGRESS ANTICIPATED THAT BAIL
WOULD ENABLE SOME ESCAPES, BECAUSE IT PROVIDED A PROCEDURE FOR DEALING
WITH THEM.  FED. RULES CRIM. PROC., 46(F). 

IN ALLOWANCE OF BAIL, THE DUTY OF THE JUDGE IS TO REDUCE THE RISK BY
FIXING AN AMOUNT REASONABLY CALCULATED TO HOLD THE ACCUSED AVAILABLE
FOR TRIAL AND ITS CONSEQUENCE.  FED.  RULES CRIM. PROC., 46(C).  BUT
THE JUDGE IS NOT FREE TO MAKE THE SKY THE LIMIT, BECAUSE THE EIGHTH
AMENDMENT TO THE CONSTITUTION SAYS:  "EXCESSIVE BAIL SHALL NOT BE
REQUIRED  ...  ." 

CONGRESS HAS REDUCED THIS GENERALITY IN PROVIDING MORE PRECISE
STANDARDS, STATING THAT "  ...  THE AMOUNT THEREOF SHALL BE SUCH AS IN
THE JUDGMENT OF THE COMMISSIONER OR COURT OR JUDGE OR JUSTICE WILL
INSURE THE PRESENCE OF THE DEFENDANT, HAVING REGARD TO THE NATURE AND
CIRCUMSTANCES OF THE OFFENSE CHARGED, THE WEIGHT OF THE EVIDENCE
AGAINST HIM, THE FINANCIAL ABILITY OF THE DEFENDANT TO GIVE BAIL AND
THE CHARACTER OF THE DEFENDANT."  FED.  RULES CRIM. PROC., 46(C). 

THESE STATUTORY STANDARDS ARE NOT CHALLENGED AS UNCONSTITUTIONAL,
RATHER THE AMOUNTS OF BAIL ESTABLISHED FOR THESE PETITIONERS ARE
ALLEGED TO EXCEED THESE STANDARDS.  WE SUBMITTED NO CONSTITUTIONAL
QUESTIONS TO ARGUMENT BY THE PARTIES, AND IT IS OUR DUTY TO AVOID
CONSTITUTIONAL ISSUES IF POSSIBLE.  FOR ME, THE RECORD IS INADEQUATE TO
SAY WHAT AMOUNTS WOULD BE REASONABLE IN ANY PARTICULAR ONE OF THESE
CASES AND I REGARD IT AS NOT THE FUNCTION OF THIS COURT TO DO SO.
FURTHERMORE, THE WHOLE COURT AGREES THAT THE REMEDY PURSUED IN THE
CIRCUMSTANCES OF THIS CASE IS INAPPROPRIATE TO TEST THE QUESTION AND
BRING IT HERE.  BUT I DO THINK THERE IS A FAIR SHOWING THAT THESE
CONGRESSIONALLY ENACTED STANDARDS HAVE NOT BEEN CORRECTLY APPLIED. 

IT IS COMPLAINED THAT THE DISTRICT COURT FIXED A UNIFORM BLANKET BAIL
CHIEFLY BY CONSIDERATION OF THE NATURE OF THE ACCUSATION AND DID NOT
TAKE INTO ACCOUNT THE DIFFERENCE IN CIRCUMSTANCES BETWEEN DIFFERENT
DEFENDANTS.  IF THIS OCCURRED, IT IS CLEAR VIOLATION OF RULE 46(C). 
EACH DEFENDANT STANDS BEFORE THE BAR OF JUSTICE AS AN INDIVIDUAL.  EVEN
ON A CONSPIRACY CHARGE DEFENDANTS DO NOT LOSE THEIR SEPARATENESS OR
IDENTITY.  WHILE IT MIGHT BE POSSIBLE THAT THESE DEFENDANTS ARE
IDENTICAL IN FINANCIAL ABILITY, CHARACTER AND RELATION TO THE CHARGE -
ELEMENTS CONGRESS HAS DIRECTED TO BE REGARDED IN FIXING BAIL - I THINK
IT VIOLATES THE LAW OF PROBABILITIES.  EACH ACCUSED IS ENTITLED TO ANY
BENEFITS DUE TO HIS GOOD RECORD, AND MISDEEDS OR A BAD RECORD SHOULD
PREJUDICE ONLY THOSE WHO ARE GUILTY OF THEM.  THE QUESTION WHEN
APPLICATION FOR BAIL IS MADE RELATES TO EACH ONE'S TRUSTWORTHINESS TO
APPEAR FOR TRIAL AND WHAT SECURITY WILL SUPPLY REASONABLE ASSURANCE OF
HIS APPEARANCE.    COMPLAINT FURTHER IS MADE THAT THE COURTS BELOW HAVE
BEEN UNDULY INFLUENCED BY RECOMMENDATIONS OF VERY HIGH BAIL MADE BY THE
GRAND JURY.  IT IS NOT THE FUNCTION OF THE GRAND JURY TO FIX BAIL, AND
ITS VOLUNTEERED ADVICE IS NOT GOVERNING.  SINCE THE GRAND JURY IS A
SECRET BODY, ORDINARILY HEARING NO EVIDENCE BUT THE PROSECUTION'S,
ATTENDED BY NO COUNSEL EXCEPT THE PROSECUTING ATTORNEYS, IT IS OBVIOUS
THAT IT IS NOT IN A POSITION TO MAKE AN IMPARTIAL RECOMMENDATION.  ITS
SUGGESTION MAY INDICATE THAT THOSE WHO HAVE HEARD THE EVIDENCE FOR THE
PROSECUTION REGARD IT AS STRONGLY INDICATIVE THAT THE ACCUSED MAY BE
GUILTY OF THE CRIME CHARGED.  IT COULD NOT MEAN MORE THAN THAT WITHOUT
HEARING THE DEFENSE, AND IT ADDS NOTHING TO THE INFERENCE FROM THE FACT
OF INDICTMENT.  SUCH RECOMMENDATIONS ARE BETTER LEFT UNMADE, AND IF
MADE SHOULD BE GIVEN NO WEIGHT. 

BUT THE PROTEST CHARGES, AND THE DEFECT IN THE PROCEEDINGS BELOW
APPEARS TO BE, THAT, PROVOKED BY THE FLIGHT OF CERTAIN COMMUNISTS AFTER
CONVICTION, THE GOVERNMENT DEMANDS AND PUBLIC OPINION SUPPORTS A USE OF
THE BAIL POWER TO KEEP COMMUNIST DEFENDANTS IN JAIL BEFORE CONVICTION. 
THUS, THE AMOUNT IS SAID TO HAVE BEEN FIXED NOT AS A REASONABLE
ASSURANCE OF THEIR PRESENCE AT THE TRIAL, BUT ALSO AS AN ASSURANCE THEY
WOULD REMAIN IN JAIL.  THERE SEEMS REASON TO BELIEVE THAT THIS MAY HAVE
BEEN THE SPIRIT TO WHICH THE COURTS BELOW HAVE YIELDED, AND IT IS
CONTRARY TO THE WHOLE POLICY AND PHILOSOPHY OF BAIL.  THIS IS NOT TO
SAY THAT EVERY DEFENDANT IS ENTITLED TO SUCH BAIL AS HE CAN PROVIDE,
BUT HE IS ENTITLED TO AN OPPORTUNITY TO MAKE IT IN A REASONABLE
AMOUNT.  I THINK THE WHOLE MATTER SHOULD BE RECONSIDERED BY THE
APPROPRIATE JUDGES IN THE TRADITIONAL SPIRIT OF BAIL PROCEDURE. 

THE OTHER QUESTIONS WE HAVE HEARD ARGUED RELATE TO THE REMEDY
APPROPRIATE WHEN THE STANDARDS FOR AMOUNT OF BAIL ARE MISAPPLIED.  OF
COURSE, PROCEDURAL RIGHTS SO VITAL CANNOT BE WITHOUT MEANS OF
VINDICATION.  IN VIEW OF THE NATURE OF THE WRIT OF HABEAS CORPUS, WE
SHOULD BE RELUCTANT TO SAY THAT UNDER NO CIRCUMSTANCES WOULD IT BE
APPROPRIATE.  BUT THAT WRIT WILL BEST SERVE ITS PURPOSE AND BE BEST
PROTECTED FROM DISCREDITING ABUSE IF IT IS RESERVED FOR CASES IN WHICH
NO OTHER PROCEDURE WILL PRESENT THE ISSUES TO THE COURTS.  ITS USE AS A
SUBSTITUTE FOR APPEALS OR AS AN OPTIONAL ALTERNATIVE TO OTHER REMEDIES
IS NOT TO BE ENCOURAGED.  HABEAS CORPUS IS NOT, IN THE ABSENCE OF
EXTRAORDINARY CIRCUMSTANCES, THE PROCEDURE TO TEST REASONABLENESS OF
BAIL. 

WE THINK THAT, PROPERLY LIMITED AND ADMINISTERED, THE MOTION TO
REDUCE BAIL WILL AFFORD A PRACTICAL, SIMPLE, ADEQUATE AND EXPEDITIOUS
PROCEDURE.  IN VIEW OF PREVAILING CONFUSIONS AND CONFLICTS IN PRACTICE,
THIS COURT SHOULD DEFINE AND LIMIT THE PROCEDURE WITH CONSIDERABLE
PRECISION, IN THE ABSENCE OF WHICH WE MAY FLOOD THE COURTS WITH MOTIONS
AND APPEALS IN BAIL CASES. 

THE FIRST FIXING OF BAIL, WHETHER BY A COMMISSIONER UNDER RULE 5(B),
OR UPON REMOVAL UNDER RULE 40(A), FED. RULES CRIM. PROC., OR BY THE
COURT UPON ARRAIGNMENT AFTER INDICTMENT, 18 U.S.C. SEC. 3141, IS A
SERIOUS EXERCISE OF JUDICIAL DISCRETION.  BUT OFTEN IT MUST BE DONE IN
HASTE - THE DEFENDANT MAY BE TAKEN BY SURPRISE, COUNSEL HAS JUST BEEN
ENGAGED, OR FOR OTHER REASONS THE BAIL IS FIXED WITHOUT THAT FULL
INQUIRY AND CONSIDERATION WHICH THE MATTER DESERVES.  SOME PROCEDURE
FOR RECONSIDERATION IS A PRACTICAL NECESSITY, AND THE COURT'S POWER
OVER REVOCATION OR REDUCTION IS A CONTINUING POWER WHICH EITHER PARTY
MAY INVOKE AS CHANGING CIRCUMSTANCES MAY REQUIRE.  IT IS HIGHLY
IMPORTANT THAT SUCH PRELIMINARY MATTERS AS BAIL BE DISPOSED OF WITH AS
MUCH FINALITY AS POSSIBLE IN THE DISTRICT COURT WHERE THE CASE IS TO BE
TRIED.  IT IS CLOSE TO THE SCENE OF THE OFFENSE, MOST ACCESSIBLE TO
DEFENDANT, HAS OPPORTUNITY TO SEE AND HEAR THE DEFENDANT AND THE
WITNESSES PERSONALLY, AND IS LIKELY TO BE BEST INFORMED FOR SOUND
EXERCISE OF DISCRETION.  RARELY WILL THE ORIGINAL DETERMINATION BE
DISTURBED, IF CAREFULLY MADE, BUT IF THE ACCUSED MOVES TO REDUCE OR THE
GOVERNMENT TO REVOKE BAIL, A MORE CAREFUL DELIBERATION MAY THEN BE MADE
ON THE RELEVANT EVIDENCE PRESENTED BY THE PARTIES, AND IF THE DEFENDANT
OR THE GOVERNMENT IS AGGRIEVED BY A DENIAL OF THE MOTION AN APPEAL MAY
BE TAKEN ON THE RECORD AS IT THEN STANDS. 

IT IS MY CONCLUSION THAT AN ORDER DENYING REDUCTION OF BAIL IS TO BE
REGARDED AS A FINAL DECISION WHICH MAY BE APPEALED TO THE COURT OF
APPEALS.  BUT THIS IS NOT BECAUSE EVERY CLAIM OF EXCESSIVE BAIL RAISES
A CONSTITUTIONAL QUESTION.  IT IS BECAUSE WE MAY PROPERLY HOLD APPEAL
TO BE A STATUTORY RIGHT.  WHILE ONLY A SENTENCE CONSTITUTES A FINAL
JUDGMENT IN A CRIMINAL CASE, BERMAN V. UNITED STATES, 302 U.S. 211,
212, IT IS A FINAL DECISION THAT CONGRESS HAS MADE REVIEWABLE.  28
U.S.C. SEC. 1291.  WHILE A FINAL JUDGMENT ALWAYS IS A FINAL DECISION,
THERE ARE INSTANCES IN WHICH A FINAL DECISION IS NOT A FINAL JUDGMENT. 
THE PURPOSE OF THE FINALITY REQUIREMENT IS TO AVOID PIECEMEAL
DISPOSITION OF THE BASIC CONTROVERSY IN A SINGLE CASE "WHERE THE RESULT
OF REVIEW WILL BE 'TO HALT IN THE ORDERLY PROGRESS OF A CAUSE AND
CONSIDER INCIDENTALLY A QUESTION WHICH HAS HAPPENED TO CROSS THE PATH
OF SUCH LITIGATION  ...  .'"  COBBLEDICK V. UNITED STATES, 309 U.S.
323, 326.  BUT AN ORDER FIXING BAIL CAN BE REVIEWED WITHOUT HALTING THE
MAIN TRIAL - ITS ISSUES ARE ENTIRELY INDEPENDENT OF THE ISSUES TO BE
TRIED - AND UNLESS IT CAN BE REVIEWED BEFORE SENTENCE, IT NEVER CAN BE
REVIEWED AT ALL.  THE RELATION OF AN ORDER FIXING BAIL TO FINAL
JUDGMENT IN A CRIMINAL CASE IS ANALOGOUS TO AN ORDER DETERMINING THE
RIGHT TO SECURITY IN A CIVIL PROCEEDING, COHEN V. BENEFICIAL INDUSTRIAL
LOAN CORP., 337 U.S. 541, OR OTHER INTERLOCUTORY ORDERS REVIEWABLE
UNDER 28 U.S.C. SEC. 1292.  I WOULD HOLD, THEREFORE, THAT SUCH ORDERS
ARE APPEALABLE. 

I CANNOT AGREE, HOWEVER, THAT AN ORDER DETERMINING WHAT AMOUNT OF
BAIL IS REASONABLE UNDER THE STANDARDS PRESCRIBED DOES NOT CALL FOR AN
EXERCISE OF DISCRETION.  THE COURT OF APPEALS IS NOT REQUIRED TO
REEXAMINE EVERY ORDER COMPLAINED OF.  THEY REPRESENT EXERCISES OF
DISCRETION, UPON QUESTIONS, USUALLY OF FACT.  TRIVIAL DIFFERENCES OR
FRIVOLOUS OBJECTIONS SHOULD BE DISMISSED.  THE APPELLATE COURT SHOULD
ONLY REVERSE FOR CLEAR ABUSE OF DISCRETION OR OTHER MISTAKE OF LAW. 
AND IT OUGHT TO BE NOTED THAT THIS COURT WILL NOT EXERCISE ITS
CERTIORARI POWER IN INDIVIDUAL CASES EXCEPT WHERE THEY ARE TYPICAL OF A
PROBLEM SO IMPORTANT AND GENERAL AS TO DESERVE THE ATTENTION OF THE
SUPERVISORY POWER. 

IF WE WOULD FOLLOW THIS COURSE OF REASONING, I THINK IN ACTUAL
EXPERIENCE IT WOULD PROTECT EVERY RIGHT OF THE ACCUSED EXPEDITIOUSLY
AND CHEAPLY.  AT THE SAME TIME, IT WOULD NOT OPEN THE FLOODGATES TO A
MULTITUDE OF TRIVIAL DISPUTES ABUSIVE OF THE MOTION PROCEDURE. 

HAVING FOUND THAT THE HABEAS CORPUS PROCEEDING WAS PROPERLY DISMISSED
BY THE DISTRICT COURT, IN WHICH ITS JUDGMENT WAS AFFIRMED BY THE COURT
OF APPEALS, WE SHOULD TO THAT EXTENT AFFIRM.  HAVING THUS DECIDED THAT
THE PROCEDURE TAKEN IN THIS CASE IS NOT THE PROPER ONE TO BRING THE
QUESTION OF EXCESSIVENESS OF BAIL BEFORE THE COURTS, THERE IS A MEASURE
OF INCONSISTENCY AND DEPARTURE FROM USUAL PRACTICE IN OUR DISCUSSION OF
MATTERS NOT BEFORE US.  CERTAINLY IT WOULD BE INAPPROPRIATE TO SAY NOW
THAT ANY PARTICULAR AMOUNT AS TO ANY PARTICULAR DEFENDANT IS EITHER
REASONABLE OR EXCESSIVE.   THAT CONCRETE AMOUNT, IN THE LIGHT OF EACH
DEFENDANT'S TESTIMONY AND THAT OF THE GOVERNMENT, SHOULD BE FIXED BY
THE APPROPRIATE JUDGE OR JUSTICE UPON EVIDENCE RELEVANT TO THE
STANDARDS PRESCRIBED.  IT IS NOT APPROPRIATE FOR THE COURT AS A WHOLE
TO FIX BAIL WHERE THE POWER HAS BEEN GIVEN TO INDIVIDUAL JUDGES AND
JUSTICES TO DO SO.  BUT THERE IS LITTLE IN OUR BOOKS TO HELP GUIDE
FEDERAL JUDGES IN BAIL PRACTICE, AND THE EXTRAORDINARY AND RECURRING
NATURE OF THIS PARTICULAR PROBLEM SEEMS TO WARRANT A DISCUSSION OF THE
MERITS IN WHICH WE WOULD NOT ORDINARILY ENGAGE. 

IT REMAINS TO ANSWER OUR OWN QUESTION AS TO WHETHER THE POWER TO
GRANT BAIL IS IN THE COURT OR IN THE CIRCUIT JUSTICE.  THERE IS
CONSIDERABLE CONFUSION AS TO THE SOURCE AND EXTENT OF THAT POWER. 

FED. RULES CRIM. PROC., 46(A)(1), WITH RESPECT TO NONCAPITAL CASES
DOES NOT STATE WHO HAS POWER TO GRANT BAIL BEFORE CONVICTION - IT
SIMPLY DIRECTS THAT IN SUCH CASE BAIL "SHALL" BE GRANTED.  FOR AN
ANSWER TO THE "WHO" QUESTION IT IS NECESSARY TO TURN TO THE CRIMINAL
CODE. 

18 U.S.C.A. SEC. 3141, ENTITLED "POWER OF COURTS AND MAGISTRATES,"
PROVIDES: 

"BAIL MAY BE TAKEN BY ANY COURT, JUDGE OR MAGISTRATE AUTHORIZED TO
ARREST AND COMMIT OFFENDERS, BUT IN CAPITAL CASES BAIL MAY BE TAKEN
ONLY BY A COURT OF THE UNITED STATES HAVING ORIGINAL OR APPELLATE
JURISDICTION IN CRIMINAL CASES OR BY A JUSTICE OR JUDGE THEREOF." 

THE POWER TO ARREST AND COMMIT OFFENDERS IS CONTAINED IN 18 U.S.C.A.
SEC. 3041, WHICH STATES THAT:

"FOR ANY OFFENSE AGAINST THE UNITED STATES, THE OFFENDER MAY, BY ANY
JUSTICE OR JUDGE OF THE UNITED STATES,  ...  BE ARRESTED AND
IMPRISONED, OR BAILED, AS THE CASE MAY BE, FOR TRIAL BEFORE SUCH COURT
OF THE UNITED STATES AS BY LAW HAS COGNIZANCE OF THE OFFENSE." 

THE FACT THAT THIS SECTION SPECIFICALLY GRANTS THE POWER OF ARREST TO
"ANY JUSTICE  ...  OF THE UNITED STATES" SUPPORTS THE CONCLUSION THAT
JUSTICES OF THIS COURT HAVE THE POWER OF ARREST, AND, HAVING THAT POWER
UNDER THIS SECTION, THEY THEREFORE ALSO HAVE POWER TO GRANT BAIL UNDER
SEC. 3141. 

THE REVISER'S NOTES TO SEC. 3141 DISCLOSE THAT IT IS THE PRODUCT OF
REV. STAT. SECS.  1015 AND 1016, WHICH WERE EMBODIED VERBATIM IN 18
U.S.C. (1940 ED.)  SECS.  596 AND 597.  THE REVISER ALSO STATES THAT,
"SECTIONS 596 AND 597 OF TITLE 18, U.S.C., 1940 ED., EXCEPT AS
SUPERSEDED BY RULE 46(A)(1) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
ARE CONSOLIDATED AND REWRITTEN IN THIS SECTION WITHOUT CHANGE OF
MEANING.  80TH CONGRESS HOUSE REPORT NO. 304."  SINCE NO CHANGE OF
MEANING WAS INTENDED, THE CONTEXT OF THE OLD SECTIONS BECOMES
PERTINENT. 

REV. STAT. SEC. 1015 READS: 

"BAIL SHALL BE ADMITTED UPON ALL ARRESTS IN CRIMINAL CASES WHERE THE
OFFENSE IS NOT PUNISHABLE BY DEATH; AND IN SUCH CASES IT MAY BE TAKEN
BY ANY OF THE PERSONS AUTHORIZED BY THE PRECEDING SECTION TO ARREST AND
IMPRISON OFFENDERS." 

"THE PRECEDING SECTION," SEC. 1014, IS THE PREDECESSOR OF 18 U.S.C.A.
SEC. 3041, AND READS THE SAME AS THAT SECTION, NAMELY: 

"FOR ANY CRIME OR OFFENSE AGAINST THE UNITED STATES, THE OFFENDER
MAY, BY ANY JUSTICE OR JUDGE OF THE UNITED STATES,  ...  BE ARRESTED
AND IMPRISONED, OR BAILED, AS THE CASE MAY BE, FOR TRIAL BEFORE SUCH
COURT OF THE UNITED STATES AS BY LAW HAS COGNIZANCE OF THE OFFENSE  ...
." 

GOING ON IN THE REVISED STATUTES, SEC. 1016 STATES THAT: 

"BAIL MAY BE ADMITTED UPON ALL ARRESTS IN CRIMINAL CASES WHERE THE
PUNISHMENT MAY BE DEATH; BUT IN SUCH CASES IT SHALL BE TAKEN ONLY BY
THE SUPREME COURT OR A CIRCUIT COURT, OR BY A JUSTICE OF THE SUPREME
COURT, A CIRCUIT JUDGE, OR A JUDGE OF A DISTRICT COURT, WHO SHALL
EXERCISE THEIR DISCRETION THEREIN, HAVING REGARD TO THE NATURE AND
CIRCUMSTANCES OF THE OFFENSE, AND OF THE EVIDENCE, AND TO THE USAGES OF
LAW." 

THE EVIDENT TENOR OF SECS. 1015 AND 1016, TAKEN TOGETHER WITH SEC.
1014, IS THAT A JUSTICE OF THIS COURT IS ONE OF MANY WHO CAN GRANT BAIL
IN A NONCAPITAL CASE BUT IS ONE OF A RESTRICTED CLASS WHO CAN GRANT
BAIL IN A CAPITAL CASE.  SECTION 1016 APPEARS TO NARROW THE CLASS
INCLUDED IN SEC. 1015. 

TO CORRELATE THE REVISED STATUTES WITH THE PRESENT STATUTORY SCHEME: 

1.  RULE 46(A)(1), READING AS FOLLOWS, IS TAKEN FROM REV. STAT. SECS.
1015 AND 1016 INSOFAR AS THE LATTER GOVERN WHO SHALL BE ADMITTED TO
BAIL AND THE CONSIDERATIONS TO BE GIVEN THE ADMISSION TO BAIL OF A
CAPITAL CASE DEFENDANT. 

RULE 46(A)(1), "BAIL BEFORE CONVICTION": 

"A PERSON ARRESTED FOR AN OFFENSE NOT PUNISHABLE BY DEATH SHALL BE
ADMITTED TO BAIL.  A PERSON ARRESTED FOR AN OFFENSE PUNISHABLE BY DEATH
MAY BE ADMITTED TO BAIL BY ANY COURT OR JUDGE AUTHORIZED BY LAW TO DO
SO IN THE EXERCISE OF DISCRETION, GIVING DUE WEIGHT TO THE EVIDENCE AND
TO THE NATURE AND CIRCUMSTANCES OF THE OFFENSE." 

2.  18 U.S.C.A. SEC. 3041, GOVERNING POWER OF ARREST, IS TAKEN
DIRECTLY FROM REV. STAT.  SEC. 1014. 

3.  18 U.S.C.A. SEC. 3141, SETTING OUT WHO MAY GRANT BAIL, IS TAKEN
FROM REV. STAT.  SECS. 1015 AND 1016 INSOFAR AS THE LATTER ARE APROPOS
OF THAT SUBJECT. 

IT THUS APPEARS THAT THE SCHEME OF THE REVISED STATUTES HAS BEEN
TAKEN OVER BODILY INTO THE PRESENT CODE AND RULES.  THE ONLY CHANGE I
PERCEIVE IS THAT, UNDER THE REVISED STATUTES, THERE WAS NO CLEAR
STATUTORY AUTHORITY FOR A COURT TO GRANT BAIL IN A NONCAPITAL CASE. 
REV. STAT. SEC. 1015 (AND SEC. 1014) APPLICABLE TO SUCH CASE SPEAK ONLY
OF INDIVIDUALS.  18 U.S.C.A. SEC. 3141 CONFERS THE POWER ON "ANY COURT,
JUDGE OR MAGISTRATE AUTHORIZED TO ARREST AND COMMIT OFFENDERS."  THE
ONLY REASONABLE CONSTRUCTION OF THE LATTER IS THE OBVIOUS LITERAL ONE,
THAT IS, THAT COURTS AS WELL AS THE INDIVIDUALS EMPOWERED TO ARREST AND
COMMIT OFFENDERS BY 18 U.S.C.A. SEC. 3041 ARE AUTHORIZED TO GRANT
BAIL.  THIS IS SUBSTANTIATED BY THE LANGUAGE OF FED. RULES CRIM. PROC.,
46(C), "AMOUNT OF BAIL":    "IF THE DEFENDANT IS ADMITTED TO BAIL, THE
AMOUNT THEREOF SHALL BE SUCH AS IN THE JUDGMENT OF THE COMMISSIONER OR
COURT OR JUDGE OR JUSTICE WILL INSURE THE PRESENCE OF THE DEFENDANT
...  ." 

THAT IS THE ONE DIFFERENCE BETWEEN THE REVISED STATUTES' SCHEME AND
THE PRESENT - THE POWER TO GRANT BAIL IN NONCAPITAL CASES NOW CLEARLY
IS VESTED IN THE COURTS AS WELL AS IN INDIVIDUAL JUDGES AND JUSTICES. 

WITH THE PREMISE PROVIDED BY THE REVISOR THAT THE POWER TO GRANT BAIL
BEFORE CONVICTION IS THE SAME NOW AS UNDER THE REVISED STATUTES, THE
ONE EXCEPTION BEING THE EXTENSION TO THE COURTS JUST NOTED, THE
CONCLUSION FOLLOWS THAT BAIL CAN BE GRANTED BY ANY COURT OF THE UNITED
STATES, INCLUDING THIS COURT, OR BY ANY JUDGE OF THE UNITED STATES,
INCLUDING THE JUSTICES OF THIS COURT. 

THE NEXT PROBLEM IS HOW RULE 45 OF THE RULES OF THIS COURT IS TO BE
ASSIMILATED WITH THE FOREGOING.  ONLY THE FIRST AND FOURTH SUBSECTIONS
OF THE RULE HAVE ANY PRESENT PERTINENCE.  THEY READ AS FOLLOWS: 

"1.  PENDING REVIEW OF A DECISION REFUSING A WRIT OF HABEAS CORPUS,
THE CUSTODY OF THE PRISONER SHALL NOT BE DISTURBED. 

     *        *         *         *         * 

"4.  THE INITIAL ORDER RESPECTING THE CUSTODY OR ENLARGEMENT OF THE
PRISONER PENDING REVIEW, AS ALSO ANY RECOGNIZANCE TAKEN, SHALL BE
DEEMED TO COVER NOT ONLY THE REVIEW IN THE INTERMEDIATE APPELLATE COURT
BUT ALSO THE FURTHER POSSIBLE REVIEW IN THIS COURT; AND ONLY WHERE
SPECIAL REASONS THEREFOR ARE SHOWN TO THIS COURT WILL IT DISTURB THAT
ORDER, OR MAKE ANY INDEPENDENT ORDER IN THAT REGARD." 

THE APPARENT CONFLICT BETWEEN THE TWO SUBSECTIONS DISAPPEARS WHEN
SUBSECTION 4 IS VIEWED AS A RESERVATION OF POWER IN THIS COURT ONLY,
NOT IN AN INDIVIDUAL JUSTICE OF THIS COURT, TO ISSUE AN ORDER IN
EXCEPTIONAL CASES DISTURBING THE CUSTODY OF THE PRISONER.  NO OTHER
COURT AND NO INDIVIDUAL JUDGE OR JUSTICE CAN DISTURB THE CUSTODY OF THE
PRISONER.  SEE CARLSON V. LANDON, 341 U.S. 918. 

THE NEXT PROBLEM IS THE BEARING, IF ANY, OF FED. RULES CRIM. PROC.,
46(A)(2), COVERING THE RIGHT TO BAIL "UPON REVIEW."  IT READS: 

"BAIL MAY BE ALLOWED PENDING APPEAL OR CERTIORARI ONLY IF IT APPEARS
THAT THE CASE INVOLVES A SUBSTANTIAL QUESTION WHICH SHOULD BE
DETERMINED BY THE APPELLATE COURT.  BAIL MAY BE ALLOWED BY THE TRIAL
JUDGE OR BY THE APPELLATE COURT OR BY ANY JUDGE THEREOF OR BY THE
CIRCUIT JUSTICE  ...  ." 

INSOFAR AS IT MIGHT BE APPLICABLE TO PETITIONERS' CASE, SINCE THEY
WERE SEEKING A REVIEW WHEN THEY FILED THEIR PETITION FOR BAIL, IT WOULD
NOT SEEM THAT IT HAS ANY EFFICACY.  THEY HAVE NOT YET BEEN TRIED FOR
THE OFFENSE FOR WHICH THEY HAVE BEEN INDICTED, SO THAT THE MUCH WIDER
POWERS OF BAIL CONFERRED BY THE STATUTES GOVERNING BAIL BEFORE
CONVICTION ARE APPLICABLE.  RULE 46(A)(2) IS ONLY INTENDED TO APPLY
WHERE A REVIEW OF A CONVICTION ON THE MERITS IS SOUGHT. 

TURNING BACK TO THE CASE AT HAND, AND TREATING THE APPLICATION TO MR.
JUSTICE DOUGLAS FOR BAIL AS ONE FOR BAIL PENDING REVIEW OF A DENIAL OF
HABEAS CORPUS, I THINK IT CLEAR THAT HE DOES NOT HAVE POWER TO GRANT
BAIL, BUT THE FULL COURT DOES HAVE THAT POWER.  HOWEVER, SINCE THE
COURT SUSTAINS THE DENIAL OF HABEAS CORPUS, TREATING THE APPLICATION
FOR BAIL STRICTLY AS ONE PENDING REVIEW OF THE DENIAL OF HABEAS CORPUS,
THE PROBLEMS IT RAISES ARE ACTUALLY MOOT.  IF THE APPLICATION TO MR.
JUSTICE DOUGLAS BE TREATED AS ONE MADE FOR FIXING BAIL IN THE ORIGINAL
CASE, IT IS MY OPINION THAT HE HAS POWER TO ENTERTAIN IT.
..END :







SUTPHEN ESTATES, INC. V. UNITED STATES 342 U.S. 19 


NO. 25.  ARGUED OCTOBER 11, 1951 - DECIDED NOVEMBER 5, 1951 - APPEAL
DISMISSED. 


PURSUANT TO A DECREE IN SHERMAN ACT PROCEEDINGS AGAINST CERTAIN MOTION
PICTURE COMPANIES, A PLAN FOR THE REORGANIZATION OF WARNER BROS.
PROVIDED FOR THE SEPARATION OF WARNER'S THEATRE BUSINESS FROM ITS
PRODUCTION AND DISTRIBUTION BUSINESS.  TWO NEW COMPANIES WERE TO BE
FORMED, ONE TO RECEIVE THE THEATRE ASSETS, THE OTHER TO RECEIVE THE
PRODUCTION AND DISTRIBUTION ASSETS; AND WARNER BROS. WAS TO BE
DISSOLVED.  WARNER WAS GUARANTOR OF A LONG-TERM LEASE OF THEATRE
PROPERTIES MADE BY APPELLANT TO A WARNER SUBSIDIARY; AND, UNDER THE
PLAN OF REORGANIZATION, THE GUARANTY WAS TO BE ASSUMED ONLY BY THE NEW
THEATRE COMPANY.  APPELLANT SOUGHT TO INTERVENE IN THE SHERMAN ACT
PROCEEDINGS TO PROTECT ITS GUARANTY, BUT THE DISTRICT COURT DENIED
LEAVE.  HELD: 

1.  IF APPELLANT WAS ENTITLED TO INTERVENE AS OF RIGHT, THE ORDER
DENYING LEAVE IS APPEALABLE.  P. 20. 

2.  THE DECREE IN THE SHERMAN ACT PROCEEDINGS IS NOT RES JUDICATA OF
THE RIGHTS WHICH APPELLANT SOUGHT TO PROTECT THROUGH INTERVENTION, AND
APPELLANT WAS THEREFORE NOT ENTITLED TO INTERVENE AS OF RIGHT UNDER
RULE 24(A)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  P. 21. 

3.  ON THE RECORD IN THIS CASE, APPELLANT HAS NOT SHOWN THAT IT WILL
BE "ADVERSELY AFFECTED" BY THE REORGANIZATION, AND HENCE MAY NOT
INTERVENE AS OF RIGHT UNDER RULE 24(A)(3).  P. 22. 

4.  THE CLAIM OF INJURY TO APPELLANT IS TOO SPECULATIVE AND TOO
CONTINGENT ON UNKNOWN FACTORS TO CONCLUDE THAT THE COURT'S DENIAL OF
LEAVE TO INTERVENE WAS AN ABUSE OF ITS DISCRETION UNDER RULE 24(B).  P.
23. 

SUTPHEN ESTATES INC. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

IN PROCEEDINGS UNDER THE SHERMAN ANTITRUST ACT, THE DISTRICT COURT
ENTERED A CONSENT DECREE AGAINST WARNER BROS. AND CERTAIN OF ITS
SUBSIDIARIES, AND ENTERED AN ORDER DENYING APPELLANT'S MOTION FOR LEAVE
TO INTERVENE.  ON A DIRECT APPEAL TO THIS COURT FROM THIS ORDER AND
FROM THE CONSENT DECREE, THE APPEAL IS DISMISSED, P. 23. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RULE 24(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDES IN PART
AS FOLLOWS: 

"(A)  INTERVENTION OF RIGHT.  UPON TIMELY APPLICATION ANYONE SHALL BE
PERMITTED TO INTERVENE IN AN ACTION:  ...  (2) WHEN THE REPRESENTATION
OF THE APPLICANT'S INTEREST BY EXISTING PARTIES IS OR MAY BE INADEQUATE
AND THE APPLICANT IS OR MAY BE BOUND BY A JUDGMENT IN THE ACTION; OR
(3) WHEN THE APPLICANT IS SO SITUATED AS TO BE ADVERSELY AFFECTED BY A
DISTRIBUTION OR OTHER DISPOSITION OF PROPERTY WHICH IS IN THE CUSTODY
OR SUBJECT TO THE CONTROL OR DISPOSITION OF THE COURT OR AN OFFICER
THEREOF." 

APPELLANT CLAIMS INTERVENTION OF RIGHT IN THE SHERMAN ACT PROCEEDINGS
INVOLVING THE REORGANIZATION OF CERTAIN PRODUCERS AND DISTRIBUTORS OF
MOTION PICTURE FILMS WHOSE ACTIVITIES HAD BEEN FOUND TO VIOLATE THE
ACT.  SEE UNITED STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131.  IF
APPELLANT MAY INTERVENE AS OF RIGHT, THE ORDER OF THE COURT DENYING
INTERVENTION IS APPEALABLE.  SEE RAILROAD TRAINMEN V. B.&O.R. CO., 331
U.S. 519, 524; 32 STAT. 823, AS AMENDED, 15 U.S.C. (SUPP. II) SEC. 29. 
IT WAS TO RESOLVE THAT QUESTION THAT WE POSTPONED THE QUESTION OF OUR
JURISDICTION OF THE APPEAL TO THE HEARING ON THE MERITS. 

THE PRESENT CONTROVERSY STEMS FROM THE REORGANIZATION OF WARNER BROS.
PICTURES, INC., PURSUANT TO A DECREE OF THE COURT IN THE SHERMAN ACT
PROCEEDINGS.  UNDER THIS DECREE PROVISION IS MADE FOR THE DIVORCEMENT
OF WARNER'S THEATRE BUSINESS FROM ITS PRODUCTION AND DISTRIBUTION
BUSINESS.  THE VARIOUS STEPS IN THE REORGANIZATION ARE NOT MATERIAL
HERE.  IT IS SUFFICIENT TO NOTE THAT ACCORDING TO THE PLAN THE
STOCKHOLDERS OF WARNER WILL VOTE A DISSOLUTION OF WARNER.  TWO NEW
COMPANIES WILL BE FORMED, ONE TO RECEIVE THE THEATRE ASSETS, THE OTHER
TO RECEIVE THE PRODUCTION AND DISTRIBUTION ASSETS.  EACH OF THE NEW
COMPANIES WILL DISTRIBUTE ITS CAPITAL STOCK PRO RATA TO WARNER'S
STOCKHOLDERS. 

WARNER IS A GUARANTOR OF A LEASE OF THEATRE PROPERTIES MADE BY
APPELLANT TO A SUBSIDIARY OF A SUBSIDIARY OF WARNER.  THE LEASE,
EXECUTED IN 1928 AND MODIFIED IN 1948, IS FOR A TERM OF 98 YEARS.  THE
PLAN OF REORGANIZATION SUBMITTED TO THE STOCKHOLDERS PROVIDES, AS WE
READ IT AND AS CONSTRUED BY COUNSEL FOR APPELLEES ON ORAL ARGUMENT,
THAT LIABILITIES OF THE CLASS IN WHICH THE GUARANTY FALLS WILL BE
ASSUMED BY THE NEW THEATRE COMPANY.  APPELLANT SEEKS INTERVENTION TO
PROTECT ITS GUARANTY. 

THERE IS INTERVENTION AS OF RIGHT UNDER RULE 24(A)(2) "WHEN THE
REPRESENTATION OF THE APPLICANT'S INTEREST BY EXISTING PARTIES IS OR
MAY BE INADEQUATE AND THE APPLICANT IS OR MAY BE BOUND BY A JUDGMENT IN
THE ACTION."  APPELLANT, HOWEVER, IS NOT A PRIVY OF WARNER; ITS RIGHTS
NOT ONLY DO NOT DERIVE FROM WARNER, THEY ARE INDEED ADVERSE TO WARNER. 
THE DECREE IN THIS CASE, LIKE THAT IN CREDITS COMMUTATION CO. V. UNITED
STATES, 177 U.S. 311, THEREFORE IS NOT RES JUDICATA OF THE RIGHTS
SOUGHT TO BE PROTECTED THROUGH INTERVENTION. 

NOR IS APPELLANT ENTITLED TO INTERVENE AS OF RIGHT BY REASON OF RULE
24(A)(3).  IT IS TRUE THAT THIS IS A CASE OF "A DISTRIBUTION OR OTHER
DISPOSITION OF PROPERTY WHICH IS IN THE CUSTODY OR SUBJECT TO THE
CONTROL OR DISPOSITION OF THE COURT  ... " WITHIN THE MEANING OF RULE
24(A)(3).  FOR IT IS THE AUTHORITY OF THE COURT UNDER THE SHERMAN ACT
THAT SANCTIONS AND DIRECTS THE REORGANIZATION.  UNITED STATES V.
PARAMOUNT PICTURES, INC., SUPRA, PP. 170 ET SEQ. APPELLANT ARGUES THAT
IT IS "ADVERSELY AFFECTED" BY THE DISPOSITION OF THE PROPERTY.  IT
POINTS OUT THAT UNDER THE PLAN ITS GUARANTOR IS DISSOLVED AND HIS
PROPERTY DIVIDED AMONG TWO NEW COMPANIES, ONLY ONE OF WHICH ASSUMES THE
GUARANTOR'S LIABILITIES UNDER THE LEASE.  IT ARGUES THAT IT IS ENTITLED
TO A JUDICIALLY ASCERTAINED EQUIVALENT FOR THE WARNER GUARANTY.  AND IT
CLAIMS THAT IN THIS CASE THAT EQUIVALENT WOULD BE A GUARANTY BY EACH OF
THE NEW COMPANIES. 

WE DO NOT THINK, HOWEVER, THAT ON THIS RECORD APPELLANT HAS SHOWN
THAT IT WILL BE "ADVERSELY AFFECTED" BY THE REORGANIZATION WITHIN THE
MEANING OF RULE 24(A)(3).  IT WILL HAVE THE GUARANTY OF THE NEW THEATRE
COMPANY.  NO SHOWING IS MADE OR ATTEMPTED THAT THAT COMPANY LACKS THE
FINANCIAL STRENGTH TO ASSUME THE RESPONSIBILITIES OF THE GUARANTY.  NO
SHOWING IS MADE OR ATTEMPTED THAT THE CONTINGENT LIABILITY UNDER THE
GUARANTY IS SO IMMINENT AND ONEROUS AS TO MAKE THE GUARANTY OF THE NEW
COMPANY SUBSTANTIALLY LESS VALUABLE THAN THE GUARANTY OF WARNER'S.  FOR
ALL WE KNOW, A GUARANTY OF A COMPANY IN THE THEATRE BUSINESS, FREED
FROM THE HAZARDS OF THE PRODUCTION AND DISTRIBUTION BUSINESS, MAY BE
EVEN MORE VALUABLE THAN THE GUARANTY OF WARNER'S.  WE DO NOT PASS HERE
ON THE FAIRNESS OF THE PLAN OR REORGANIZATION.  CF. CONTINENTAL CO. V.
UNITED STATES, 259 U.S. 156.  WE HOLD ONLY THAT APPELLANT HAS NOT
MAINTAINED THE BURDEN OF SHOWING THAT UNDER RULE 24(A)(3) IT MAY
INTERVENE AS OF RIGHT. 

PERMISSIVE INTERVENTION IS GOVERNED BY RULE 24(B).  BUT WE HAVE SAID
ENOUGH TO SHOW THAT THE CLAIM OF INJURY TO APPELLANT IS TOO SPECULATIVE
AND TOO CONTINGENT ON UNKNOWN FACTORS TO CONCLUDE THAT THERE WAS AN
ABUSE OF DISCRETION IN DENYING LEAVE TO INTERVENE.  THE COURT HAD AMPLE
REASON TO PREVENT THE ADMINISTRATION OF THE DECREE FROM BEING BURDENED
WITH A COLLATERAL ISSUE THAT ON THIS RECORD CAN PROPERLY BE ADJUDICATED
ELSEWHERE.  THE APPEAL IS THEREFORE DISMISSED. 

MR. JUSTICE JACKSON, MR. JUSTICE CLARK, AND MR. JUSTICE MINTON TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

WARNER BROTHERS, INC., HAS BEEN GUARANTOR ON A LEASE OF THEATER
PROPERTIES MADE BY APPELLANT SUTPHEN ESTATES.  UNDER A COURT DECREE OF
DISSOLUTION WARNER IS TO BE SPLIT UP INTO TWO COMPANIES, ONLY ONE OF
WHICH WILL EXPRESSLY ASSUME THE WARNER GUARANTEE TO SUTPHEN.  SUTPHEN'S
LEASE CAN NO LONGER BE GUARANTEED BY THE COMBINED ASSETS OF THE ILLEGAL
CORPORATION WE HAVE ORDERED DISSOLVED.  PERHAPS IT IS INEVITABLE THAT
THE GUARANTEE WILL BE IMPAIRED TO SOME EXTENT, BUT WE SHOULD INSURE
THAT SUTPHEN SUFFERS NO MORE THAN ITS FAIR SHARE OF WHATEVER LOSSES MAY
RESULT FROM THE ENFORCEMENT OF THE ANTITRUST LAWS. 

I AM OF THE OPINION THAT THE ISSUE OF IMPAIRMENT CAN BEST BE AND
SHOULD BE DETERMINED BY THE DISTRICT COURT AS A PART OF THE DISSOLUTION
PROCEEDINGS.  FURTHERMORE, I CANNOT ASSENT TO AN OPINION THAT PERMITS
THIS QUESTION OF IMPAIRMENT TO REMAIN OPEN FOR ADJUDICATION ELSEWHERE
AT SOME INDEFINITE TIME IN THE FUTURE. 

DISSOLUTION OF WARNER, WHICH WE HAVE ORDERED, CANNOT BE COMPLETELY
CONSUMMATED IF THE DECREE LEAVES IN DOUBT WHETHER BOTH NEW COMPANIES
ARE JOINTLY OBLIGATED ON SUTPHEN'S LEASE.  CF. CONTINENTAL INSURANCE
CO. V. UNITED STATES, 259 U.S. 156, 173-174.  SURELY, IF WE HAVE THE
POWER TO ORDER A DISSOLUTION TO PREVENT SHERMAN ACT VIOLATIONS, WE HAVE
THE POWER TO INSURE THAT THE NEWLY CREATED COMPANIES ARE PERMANENTLY
AND TOTALLY DISINTERESTED IN EACH OTHER'S FUTURE ACTIVITIES, AND ARE IN
NO WAY UNITED BY PAST OBLIGATIONS. 
..END :















MCMAHON V. UNITED STATES 342 U.S. 25 


NO. 17.  ARGUED OCTOBER 17, 1951 - DECIDED NOVEMBER 5, 1951 - 186 F.2D
227, AFFIRMED. 


1.  UNDER THE CLARIFICATION ACT THE CLAIM OF A SEAMAN AGAINST THE
UNITED STATES FOR INJURIES AND MAINTENANCE AND CURE, "IF
ADMINISTRATIVELY DISALLOWED IN WHOLE OR IN PART," MAY BE ENFORCED
PURSUANT TO THE PROVISIONS OF THE SUITS IN ADMIRALTY ACT, WHICH
PROVIDES THAT ANY SUIT THEREUNDER "SHALL BE BROUGHT WITHIN TWO YEARS
AFTER THE CAUSE OF ACTION ARISES."  HELD:  THE PERIOD OF LIMITATION
BEGINS TO RUN FROM THE DATE OF THE INJURY, NOT FROM THE TIME OF THE
ADMINISTRATIVE DISALLOWANCE OF THE CLAIM.  PP. 25-27. 

2.  UPON THE RECORD IN THIS CASE, IT IS INAPPROPRIATE TO CONSIDER
WHETHER THE STATUTE OF LIMITATIONS IS TOLLED FOR A MAXIMUM OF SIXTY
DAYS WHILE A CLAIM IS PENDING AND NOT DISALLOWED EITHER BY NOTICE OR BY
OPERATION OF THE REGULATIONS.  P. 28. 

MCMAHON V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PETITIONER'S COMPLAINT IN A SUIT AGAINST THE UNITED STATES WAS
DISMISSED BY THE DISTRICT COURT AS BARRED BY LIMITATIONS.  91 F. SUPP.
593.  THE COURT OF APPEALS AFFIRMED.  186 F.2D 227.  THIS COURT GRANTED
CERTIORARI.  341 U.S. 930.  AFFIRMED, P. 28. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A SEAMAN, BROUGHT THIS SUIT IN ADMIRALTY ALLEGING IN THE
FIRST COUNT A CAUSE OF ACTION BASED ON NEGLIGENCE AND UNSEAWORTHINESS,
WHILE IN THE SECOND COUNT HE SOUGHT MAINTENANCE AND CURE.  HE ALLEGED
THE ACTIONABLE WRONGS TO HAVE TAKEN PLACE IN NOVEMBER AND DECEMBER OF
1945, BUT HE DID NOT FILE HIS LIBEL UNTIL JANUARY 22, 1948. 

THE ACT WHICH GIVES TO SEAMEN EMPLOYED BY THE UNITED STATES ON
GOVERNMENT-OWNED VESSELS THE SAME RIGHTS AS THOSE EMPLOYED ON PRIVATELY
OWNED AND OPERATED AMERICAN VESSELS PROVIDES THAT CLAIMS LIKE THOSE OF
THE PETITIONER, "  ...  IF ADMINISTRATIVELY DISALLOWED IN WHOLE OR IN
PART  ...  ," MAY BE ENFORCED PURSUANT TO THE PROVISIONS OF THE SUITS
IN ADMIRALTY ACT.  (FN1)  THAT ACT IN TURN PROVIDES THAT ANY SUIT
THEREUNDER " ...  SHALL BE BROUGHT WITHIN TWO YEARS AFTER THE CAUSE OF
ACTION ARISES ...  ."  (FN2)  COURTS OF APPEALS HAVE RENDERED
CONFLICTING DECISIONS AS TO WHETHER THE DATE OF INJURY OR THE DATE OF
DISALLOWANCE OF THE CLAIM COMMENCES THE PERIOD OF LIMITATION.  THE
DISTRICT COURT DISMISSED THIS PETITIONER'S COMPLAINT ON THE GROUND SET
UP BY THE GOVERNMENT THAT IT WAS NOT FILED WITHIN TWO YEARS FROM THE
DATES OF HIS INJURIES.  (FN3)  THE COURT OF APPEALS FOR THE THIRD
CIRCUIT AFFIRMED ON THE SAME GROUND, ADHERING TO ITS VIEW EXPRESSED IN
AN EARLIER CASE, AND, IT SUBSEQUENTLY DEVELOPED, IN AGREEMENT WITH THE
COURT OF APPEALS FOR THE SECOND CIRCUIT.  (FN4) 

THE CONTENTION OF THE PETITIONER IS THAT HE COULD NOT SUE UNTIL HIS
CLAIM HAD BEEN ADMINISTRATIVELY DISALLOWED, AND THAT HE HAD NO "CAUSE
OF ACTION" UNTIL HE COULD SUE.  ACCORDINGLY, HE ARGUES THAT THE PERIOD
OF LIMITATIONS CANNOT START TO RUN UNTIL HIS CLAIM HAS BEEN
ADMINISTRATIVELY DISALLOWED BECAUSE ONLY THEN DOES HIS "CAUSE OF
ACTION" ARISE.  IN HIS SUPPORT HE POINTS TO THURSTON V. UNITED STATES,
179 F.2D 514, IN WHICH THE COURT OF APPEALS FOR THE NINTH CIRCUIT HELD
IN ACCORD WITH HIS PRESENT CONTENTIONS. 

WE FIND OURSELVES UNABLE TO AGREE WITH PETITIONER AND THE NINTH
CIRCUIT, FOR WE THINK IT CLEAR THAT THE PROPER CONSTRUCTION OF THE
LANGUAGE USED IN THE SUITS IN ADMIRALTY ACT IS THAT THE PERIOD OF
LIMITATION IS TO BE COMPUTED FROM THE DATE OF THE INJURY.  IT WAS
ENACTED SEVERAL YEARS BEFORE SUITS SUCH AS THE PRESENT, ON DISALLOWED
CLAIMS, WERE AUTHORIZED.  CERTAINLY DURING THOSE YEARS THE LIMITATION
DEPENDED UPON THE EVENT GIVING RISE TO THE CLAIMS, NOT UPON THE
REJECTION.  WHEN LATER THE RIGHT TO SUE WAS BROADENED TO INCLUDE SUCH
CLAIMS AS THIS, THERE WAS NO INDICATION OF ANY CHANGE IN THE LIMITATION
CONTAINED IN THE OLDER ACT.  WHILE, AS THE COURT BELOW POINTED OUT,
LEGISLATION FOR THE BENEFIT OF SEAMEN IS TO BE CONSTRUED LIBERALLY IN
THEIR FAVOR, IT IS EQUALLY TRUE THAT STATUTES WHICH WAIVE IMMUNITY OF
THE UNITED STATES FROM SUIT ARE TO BE CONSTRUED STRICTLY IN FAVOR OF
THE SOVEREIGN.  (FN5)  SINCE NO TIME IS FIXED WITHIN WHICH THE SEAMAN
IS OBLIGED TO PRESENT HIS CLAIM, UNDER PETITIONER'S POSITION HE WOULD
HAVE IT IN HIS POWER, BY DELAYING ITS FILING, TO POSTPONE INDEFINITELY
COMMENCEMENT OF THE RUNNING OF THE STATUTE OF LIMITATIONS AND THUS TO
DELAY INDEFINITELY KNOWLEDGE BY THE GOVERNMENT THAT A CLAIM EXISTED. 
WE CANNOT CONSTRUE THE ACT AS GIVING CLAIMANTS AN OPTION AS TO WHEN
THEY WILL CHOOSE TO START THE PERIOD OF LIMITATION OF AN ACTION AGAINST
THE UNITED STATES.  ACCORDINGLY, WE HOLD THAT THE STATUTE OF
LIMITATIONS RUNS FROM THE DATE OF THE INJURY, AND AFFIRM THE COURT
BELOW. 

IT IS TO BE OBSERVED THAT THE REGULATIONS APPLICABLE TO THE FILING OF
SUCH A CLAIM PROVIDE THAT, IF IT IS NOT REJECTED IN WRITING WITHIN
SIXTY DAYS FROM FILING, IT SHALL BE PRESUMED TO HAVE BEEN
ADMINISTRATIVELY DISALLOWED AND THE CLAIMANT SHALL BE ENTITLED TO
ENFORCE HIS CLAIM.  (FN6)  THE RECORD FILED WITH US DOES NOT DISCLOSE
WHEN PETITIONER'S CLAIM WAS FILED OR, WITH PRECISION, WHEN IT WAS
DISALLOWED.  IN VIEW OF THAT STATE OF THE RECORD MAKING IT UNCERTAIN
WHETHER THE POINT WOULD HAVE ANY EFFECT ON THE OUTCOME AND THE FACT
THAT PETITIONER HAS NOT RAISED THE POINT, WE FIND IT INAPPROPRIATE TO
CONSIDER WHETHER THE STATUTE OF LIMITATIONS IS TOLLED FOR A MAXIMUM OF
SIXTY DAYS WHILE A CLAIM IS PENDING AND NOT DISALLOWED EITHER BY NOTICE
OR BY OPERATION OF THE REGULATIONS.  AFFIRMED. 

FN1  CLARIFICATION ACT OF MARCH 24, 1943, SEC. 1(A), 57 STAT. 45, 50
U.S.C. APP. SEC. 1291(A). 

FN2  SUITS IN ADMIRALTY ACT, SEC. 5, 41 STAT. 526, 46 U.S.C. SEC.
745. 

FN3  91 F. SUPP. 593. 

FN4  186 F.2D 227; RODINCIUC V. UNITED STATES, 175 F.2D 479, 481
(C.A. 3D CIR.); GREGORY V. UNITED STATES, 187 F.2D 101, 103 (C.A.2D
CIR.). 

FN5  UNITED STATES V. MICHEL, 282 U.S. 656, 659; UNITED STATES V.
SHAW, 309 U.S. 495, 500-501; UNITED STATES V. SHERWOOD, 312 U.S. 584,
586-587. 

FN6  GENERAL ORDER 32, ADMINISTRATOR, WAR SHIPPING ADMINISTRATION, 8
FED. REG. 5414, 46 CFR SEC. 304.26. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS THINK THAT, FOR REASONS
STATED IN THURSTON V. UNITED STATES, 179 F.2D 514, THE STATUTE OF
LIMITATIONS DID NOT BEGIN TO RUN UNTIL THE CLAIM WAS DISALLOWED AND
WOULD THEREFORE REVERSE THIS JUDGMENT. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













GARDNER V. PANAMA RAILROAD CO. 342 U.S. 29 


NO. 22.  ARGUED OCTOBER 11, 1951 - DECIDED NOVEMBER 5, 1951 - 185 F.2D
730, REVERSED. 


1.  UPON THE FACTS OF THIS CASE, LACHES WAS NOT A DEFENSE TO
PETITIONER'S SUIT IN ADMIRALTY AGAINST RESPONDENT TO RECOVER DAMAGES
FOR INJURIES ALLEGED TO HAVE BEEN SUSTAINED WHILE A PASSENGER ON
RESPONDENT'S STEAMSHIP, ALTHOUGH AN ACTION AT LAW WAS BARRED BY THE
LOCAL STATUTE OF LIMITATIONS.   PP. 30-32. 

(A)  ALTHOUGH THE QUESTION OF LACHES IS ONE PRIMARILY ADDRESSED TO
THE DISCRETION OF THE TRIAL COURT, IT SHOULD NOT BE DETERMINED MERELY
BY A REFERENCE TO AND A MECHANICAL APPLICATION OF THE STATUTE OF
LIMITATIONS; THE EQUITIES OF THE PARTIES MUST ALSO BE CONSIDERED.  PP.
30-31. 

(B)  WHERE THERE HAS BEEN ON INEXCUSABLE DELAY IN SEEKING A REMEDY
AND WHERE NO PREJUDICE TO THE DEFENDANT HAS ENSUED FROM THE MERE
PASSAGE OF TIME, RELIEF SHOULD NOT BE DENIED ON THE GROUND OF LACHES. 
P. 31. 

2.  PUBLIC LAW 172, 81ST CONG., 1ST SESS., 63 STAT. 444, 28 U.S.C.
SEC. 2680(M), WHICH EXCLUDED CLAIMS AGAINST THE PANAMA RAILROAD COMPANY
FROM THE PROVISIONS OF THE TORT CLAIMS ACT, IS NOT TO BE INTERPRETED AS
SUMMARILY CUTTING OFF THE REMEDY OF ALL WHO HAD SUED THE UNITED STATES
FOR TORTS WHICH HAD BEEN COMMITTED BY THE COMPANY DURING THE YEAR
PRECEDING ITS ENACTMENT, BUT AS PERMITTING OUTSTANDING CLAIMS UPON
WHICH SUIT HAD BEEN INSTITUTED AGAINST THE UNITED STATES TO BE ENFORCED
BY PROMPT PROCEEDINGS DIRECTLY AGAINST THE COMPANY.  PP. 31-32. 

GARDNER V. PANAMA RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PETITIONER'S SUIT IN ADMIRALTY AGAINST RESPONDENT WAS DISMISSED BY
THE DISTRICT COURT ON THE GROUND OF LACHES.  THE COURT OF APPEALS
AFFIRMED.  185 F.2D 730.  THIS COURT GRANTED CERTIORARI.  341 U.S.
934.  REVERSED, P. 32. 

PER CURIAM. 

THIS SUIT IN ADMIRALTY, A LIBEL IN PERSONAM BROUGHT IN THE DISTRICT
COURT FOR THE CANAL ZONE, IS PETITIONER'S THIRD ATTEMPT TO SECURE
DAMAGES FOR INJURIES ALLEGED TO HAVE BEEN SUSTAINED ON DECEMBER 3,
1947, WHILE A PASSENGER ON BOARD RESPONDENT'S STEAMSHIP PANAMA. 

PETITIONER INSTITUTED HER FIRST ACTION AGAINST THE RESPONDENT ON
APRIL 10, 1948.  THIS COMPLAINT WAS DISMISSED OCTOBER 7, 1948, AFTER
THE COMPANY SUCCESSFULLY MAINTAINED THAT PETITIONER'S ONLY REMEDY WAS
TO SUE THE UNITED STATES UNDER THE FEDERAL TORT CLAIMS ACT; THAT
RESPONDENT, WHOSE ENTIRE STOCK IS OWNED BY THE UNITED STATES, WAS A
"FEDERAL AGENCY" WITHIN THE MEANING OF THAT ACT.  (FN1) 

AN ACTION AGAINST THE UNITED STATES FILED ON NOVEMBER 28, 1948 -
STILL WITHIN THE ONE-YEAR PERIOD OF LIMITATION - WAS DISMISSED BY THE
DISTRICT COURT BEFORE REACHING TRIAL ON THE MERITS, AFTER CONGRESS HAD
AMENDED, ON JULY 16, 1949, THE FEDERAL TORT CLAIMS ACT, EXCLUDING FROM
ITS COVERAGE "ANY CLAIMS ARISING FROM THE ACTIVITIES OF THE PANAMA
RAILROAD COMPANY."  (FN2) 

FIVE DAYS LATER, ON OCTOBER 19, 1949, PETITIONER COMMENCED THE
PRESENT SUIT.  RESPONDENT PLEADED LACHES ON THE THEORY THAT, SINCE THE
ONE-YEAR CANAL ZONE STATUTE OF LIMITATIONS (FN3) NOW BARRED ANY ACTION
AT LAW, LACHES SHOULD BAR ANY REMEDY IN ADMIRALTY.  THE DISTRICT COURT
SUSTAINED THIS DEFENSE, AND ENTERED JUDGMENT FOR THE RESPONDENT.  THE
COURT OF APPEALS AFFIRMED ON THAT GROUND, 185 F.2D 730.  WE GRANTED
CERTIORARI, 341 U.S. 934. 

THOUGH THE EXISTENCE OF LACHES IS A QUESTION PRIMARILY ADDRESSED TO
THE DISCRETION OF THE TRIAL COURT, THE MATTER SHOULD NOT BE DETERMINED
MERELY BY A REFERENCE TO AND A MECHANICAL APPLICATION OF THE STATUTE OF
LIMITATIONS.  THE EQUITIES OF THE PARTIES MUST BE CONSIDERED AS WELL. 
WHERE THERE HAS BEEN NO INEXCUSABLE DELAY IN SEEKING A REMEDY AND WHERE
NO PREJUDICE TO THE DEFENDANT HAS ENSUED FROM THE MERE PASSAGE OF TIME,
THERE SHOULD BE NO BAR TO RELIEF.  THE KEY CITY, 14 WALL.  653 (1872);
SOUTHERN PACIFIC CO. V. BOGERT, 250 U.S. 483 (1919); HOLMBERG V.
ARMBRECHT, 327 U.S. 392 (1946); SEE MCGRATH V. PANAMA R. CO., 298 F.
303, 304 (1924). 

PETITIONER HAS DILIGENTLY SOUGHT REDRESS IN THIS CASE.  TWICE WITHIN
THE YEAR FOLLOWING HER INJURIES SHE BROUGHT SUIT.  THE SECOND ACTION
ABATED THROUGH AN ACT OF CONGRESS AND NOT THROUGH ANY FAULT OF HER
OWN.  THERE IS NO SHOWING THAT RESPONDENT'S POSITION HAS SUFFERED FROM
THE FACT THAT THE CLAIM HAS NOT YET PROCEEDED TO TRIAL ON ITS MERITS. 

RESPONDENT CONTENDS THAT, IN ANY EVENT, THE DECISION BELOW MUST BE
AFFIRMED BECAUSE THE PETITIONER AT NO TIME HAS HAD A CAUSE OF ACTION
AGAINST THE COMPANY.  IT CONTENDS THAT, AT THE TIME OF THE INJURY, THE
UNITED STATES AND NOT THE COMPANY WAS LIABLE, AND THAT PUBLIC LAW 172,
WHICH NOW RENDERS THE COMPANY AMENABLE TO SUIT, SHOULD NOT OPERATE
RETROACTIVELY TO TRANSFER THE PREEXISTING LIABILITY OF THE GOVERNMENT
TO THE RESPONDENT. 

WE MUST REJECT THIS VIEW.  THE COMPANY WAS SUBJECT TO SUIT BEFORE
PASSAGE OF THE TORT CLAIMS ACT, PANAMA R. CO. V. MINNIX, 282 F. 47
(1922), AND ITS INCLUSION WITHIN THE SCOPE OF THAT ACT MEANT ONLY THAT
THE UNITED STATES WAS RESPONSIBLE IN DAMAGES FOR ITS TORTS.  WITHOUT
INTERVAL, FROM THE TIME OF RESPONDENT'S INCORPORATION, UNTIL JULY 16,
1949, THOSE INJURED THROUGH FAULT OF THE COMPANY WERE NEVER LEFT
WITHOUT MEANS OF REDRESS.  RESPONDENT WOULD NOW HAVE US ATTRIBUTE TO
CONGRESS THE INTENT TO CREATE AN INEQUITABLE HIATUS.  DESPITE THE FACT
THAT THE STATED "PURPOSE" OF PUBLIC LAW 172 WAS SIMPLY TO "EXCLUDE
CLAIMS AGAINST THE  ...  COMPANY FROM THE PROVISIONS" OF THE TORT
CLAIMS ACT, (FN4) RESPONDENT WOULD HAVE US HOLD THAT CONGRESS MEANT TO
CUT OFF, SUMMARILY, THE REMEDY OF ALL WHO HAD SUED THE UNITED STATES
FOR TORTS WHICH HAD BEEN COMMITTED BY THE PANAMA RAILROAD COMPANY
DURING THE YEAR PRECEDING ENACTMENT OF PUBLIC LAW 172. 

IN OUR VIEW, THE AMENDMENT PERMITTED OUTSTANDING CLAIMS UPON WHICH
SUIT HAD BEEN INSTITUTED AGAINST THE UNITED STATES TO BE ENFORCED BY
PROMPT PROCEEDINGS DIRECTLY AGAINST THE COMPANY.  THE PETITIONER
FOLLOWED THIS COURSE.  THIS INTERPRETATION WOULD SEEM TO BE SUSTAINED
BY THE STATEMENT OF THE COMPANY'S PRESIDENT WHEN HE ENDORSED THE
PASSAGE OF PUBLIC LAW 172, SECURING THE EXCLUSION OF RESPONDENT FROM
THE TORT CLAIMS ACT, AT WHICH TIME HE SAID THAT THOUGH THE ACT EMBRACED
"CLAIMS AGAINST THE PANAMA RAILROAD COMPANY," ITS PROVISIONS WERE NOT
WELL DESIGNED TO EXPEDITE THE REDRESS OF SUCH INJURIES, AND THAT
CONGRESS SHOULD ENACT PUBLIC LAW 172 "TO CONTINUE UNIMPAIRED  ...  THE
AMENABILITY OF THE COMPANY TO SUIT IN THE ORDINARY COURSE."  (FN5) 

THE DECISION OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.  REVERSED. 

FN1  28 U.S.C. SECS. 2671, 2679. 

FN2  PUBLIC LAW 172, 81ST CONG., 1ST SESS., 63 STAT. 444, 28 U.S.C.
SEC. 2680(M). 

FN3  CANAL ZONE CODE, 1934, TIT. 4, SEC. 87(3). 

FN4  H.R. REP. NO. 830, 81ST CONG., 1ST SESS.; S. REP. NO. 167, ID. 

FN5  H.R. REP. NO. 830, SUPRA, 3, 4; S. REP. NO. 167, SUPRA, 3, 4. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :























DIXON V. DUFFY 342 U.S. 33 


NO. 79.  ARGUED OCTOBER 16, 1951 - CONTINUED NOVEMBER 5, 1951. 


THIS CAUSE IS CONTINUED FOR SUCH PERIOD AS WILL ENABLE COUNSEL FOR
PETITIONER TO SECURE A DETERMINATION FROM THE SUPREME COURT OF
CALIFORNIA AS TO WHETHER ITS JUDGMENT HEREIN WAS INTENDED TO REST ON AN
ADEQUATE INDEPENDENT STATE GROUND OR WHETHER DECISION OF THE FEDERAL
CLAIM WAS NECESSARY TO THE JUDGMENT RENDERED.  PP. 33-34. 

DIXON V. DUFFY, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

PETITIONER WAS CONVICTED IN THE CALIFORNIA SUPERIOR COURT IN 1949 OF
MAKING AND POSSESSING COUNTERFEITING DIES OR PLATES IN VIOLATION OF
CAL. PENAL CODE, 1949, SEC. 480.  HE DID NOT APPEAL, BUT SOUGHT TO
CHALLENGE THE VALIDITY OF HIS CONVICTION BY FILING SUCCESSIVE PETITIONS
FOR A WRIT OF HABEAS CORPUS IN THE CALIFORNIA SUPERIOR COURT AND
CALIFORNIA DISTRICT COURT OF APPEAL. 

FOLLOWING DENIAL OF THESE PETITIONS, HE INSTITUTED THIS CASE BY
FILING AN ORIGINAL PETITION FOR A WRIT OF HABEAS CORPUS IN THE SUPREME
COURT OF CALIFORNIA.  THE SUPREME COURT OF CALIFORNIA DENIED THE
PETITION WITHOUT OPINION, TWO JUSTICES THEREOF VOTING FOR ISSUANCE OF
THE WRIT.  WE GRANTED CERTIORARI, 341 U.S. 938, BECAUSE OF A SERIOUS
CLAIM THAT PETITIONER HAD BEEN DEPRIVED OF HIS RIGHTS UNDER THE FEDERAL
CONSTITUTION. 

AT THE BAR OF THIS COURT, THE ATTORNEY GENERAL OF THE STATE OF
CALIFORNIA ARGUED THAT HABEAS CORPUS WAS NOT A PROPER STATE REMEDY FOR
DETERMINATION OF PETITIONER'S FEDERAL CLAIM.  IT IS THE POSITION OF THE
ATTORNEY GENERAL THAT PETITIONER'S FAILURE TO APPEAL IN THIS CASE
BARRED HIM FROM SEEKING POST-CONVICTION RELIEF BY WAY OF A COLLATERAL
HABEAS CORPUS PROCEEDING.  HE ADMITS THAT HABEAS CORPUS IS AVAILABLE IN
CALIFORNIA IN CASES INVOLVING CERTAIN EXCEPTIONAL CIRCUMSTANCES, BUT
CONTENDS THAT THIS IS NOT SUCH A CASE.  IF THE ATTORNEY GENERAL IS
CORRECT, THE JUDGMENT MAY REST ON A NON-FEDERAL GROUND, THUS CALLING
FOR DISMISSAL OF OUR WRIT OF CERTIORARI.  IN THIS STATE OF UNCERTAINTY,
WE FOLLOW OUR PRECEDENTS IN HERB V. PITCAIRN, 324 U.S. 117 (1945), AND
LOFTUS V. ILLINOIS, 334 U.S. 804 (1948). 

ACCORDINGLY, THE CAUSE IS ORDERED CONTINUED FOR SUCH PERIOD AS WILL
ENABLE COUNSEL FOR PETITIONER TO SECURE A DETERMINATION FROM THE
SUPREME COURT OF CALIFORNIA AS TO WHETHER THE JUDGMENT HEREIN WAS
INTENDED TO REST ON AN ADEQUATE INDEPENDENT STATE GROUND OR WHETHER
DECISION OF THE FEDERAL CLAIM WAS NECESSARY TO THE JUDGMENT RENDERED. 
CAUSE CONTINUED. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















PALMER OIL CORP. V. AMERADA PETROLEUM CORP. 342 U.S. 35 


NO. 301.  CONTINUED NOVEMBER 5, 1951. 


THESE CAUSES ARE CONTINUED FOR SUCH PERIOD AS WILL ENABLE APPELLANTS
WITH ALL CONVENIENT SPEED TO SECURE IN AN APPROPRIATE STATE PROCEEDING
A DETERMINATION AS TO THE EFFECT ON THESE APPEALS OF THE REPEAL OF THE
STATE STATUTE WHOSE CONSTITUTIONALITY IS DRAWN IN QUESTION BY THESE
APPEALS. 

PALMER OIL CORP. ET AL. V. AMERADA PETROLEUM CORP. ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA.* 

*TOGETHER WITH NO. 302, FARWELL ET AL. V. AMERADA PETROLEUM CORP. ET
AL., ALSO ON APPEAL FROM THE SAME COURT. 

THE DECISION BELOW IS REPORTED IN 204 OKLA. 543, 231 P.2D 997. 

PER CURIAM. 

THE COURT IS ADVISED THAT, ON MAY 26, 1951, THE OKLAHOMA LEGISLATURE
REPEALED OKLA.  STAT., 1941 (CUM. SUPP. 1949), TIT. 52, SECS. 286.1
286.17, THE CONSTITUTIONALITY OF WHICH IS DRAWN IN QUESTION BY THESE
APPEALS.  THE CAUSES ARE THEREFORE ORDERED CONTINUED FOR SUCH PERIOD AS
WILL ENABLE APPELLANTS WITH ALL CONVENIENT SPEED TO SECURE IN AN
APPROPRIATE STATE PROCEEDING A DETERMINATION AS TO THE EFFECT OF THIS
REPEAL ON THE MATTERS RAISED IN THESE APPEALS.  CAUSE CONTINUED. 
..END :























DENNIS V. UNITED STATES, 341 U.S. 494 


NO. 336.  ARGUED DECEMBER 4, 1950.  - DECIDED JUNE 4, 1951.- 183 F.2D
201, AFFIRMED. 


1.  AS CONSTRUED AND APPLIED IN THIS CASE, SECS. 2(A)(1), 2(A)(3) AND
3 OF THE SMITH ACT, 54 STAT. 671, MAKING IT A CRIME FOR ANY PERSON
KNOWINGLY OR WILLFULLY TO ADVOCATE THE OVERTHROW OR DESTRUCTION OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE, TO ORGANIZE OR
HELP TO ORGANIZE ANY GROUP WHICH DOES SO, OR TO CONSPIRE TO DO SO, DO
NOT VIOLATE THE FIRST AMENDMENT OR OTHER PROVISIONS OF THE BILL OF
RIGHTS AND DO NOT VIOLATE THE FIRST OR FIFTH AMENDMENTS BECAUSE OF
INDEFINITENESS.  PP. 495-499, 517. 

2.  PETITIONERS, LEADERS OF THE COMMUNIST PARTY IN THIS COUNTRY, WERE
INDICTED IN A FEDERAL DISTRICT COURT UNDER SEC. 3 OF THE SMITH ACT FOR
WILLFULLY AND KNOWINGLY CONSPIRING (1) TO ORGANIZE AS THE COMMUNIST
PARTY A GROUP OF PERSONS TO TEACH AND ADVOCATE THE OVERTHROW AND
DESTRUCTION OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE, AND (2) KNOWINGLY AND WILLFULLY TO ADVOCATE AND TEACH THE
DUTY AND NECESSITY OF OVERTHROWING AND DESTROYING THE GOVERNMENT OF THE
UNITED STATES BY FORCE AND VIOLENCE.  THE TRIAL JUDGE INSTRUCTED THE
JURY THAT THEY COULD NOT CONVICT UNLESS THEY FOUND THAT PETITIONERS
INTENDED TO OVERTHROW THE GOVERNMENT "AS SPEEDILY AS CIRCUMSTANCES
WOULD PERMIT" BUT THAT, IF THEY SO FOUND, THEN, AS A MATTER OF LAW,
THERE WAS SUFFICIENT DANGER OF A SUBSTANTIVE EVIL THAT CONGRESS HAS A
RIGHT TO PREVENT TO JUSTIFY APPLICATION OF THE STATUTE UNDER THE FIRST
AMENDMENT.  PETITIONERS WERE CONVICTED AND THE CONVICTIONS WERE
SUSTAINED BY THE COURT OF APPEALS.  THIS COURT GRANTED CERTIORARI,
LIMITED TO THE QUESTIONS:  (1) WHETHER EITHER SEC. 2 OR SEC. 3 OF THE
SMITH ACT, INHERENTLY OR AS CONSTRUED AND APPLIED IN THE INSTANT CASE,
VIOLATES THE FIRST AMENDMENT AND OTHER PROVISIONS OF THE BILL OF
RIGHTS; AND (2) WHETHER EITHER SEC. 2 OR SEC. 3, INHERENTLY OR AS
CONSTRUED AND APPLIED IN THE INSTANT CASE, VIOLATES THE FIRST AND FIFTH
AMENDMENTS BECAUSE OF INDEFINITENESS.  HELD:  THE CONVICTIONS ARE
AFFIRMED.  PP. 495-499, 511-512, 517. 

FOR THE OPINIONS OF THE JUSTICES CONSTITUTING THE MAJORITY OF THE
COURT, SEE: 

OPINION OF THE CHIEF JUSTICE, JOINED BY MR. JUSTICE REED, MR. JUSTICE
BURTON AND MR. JUSTICE MINTON, P. 495. 

OPINION OF MR. JUSTICE FRANKFURTER, P. 517. 

OPINION OF MR. JUSTICE JACKSON, P. 561. 

FOR THE DISSENTING OPINION OF MR. JUSTICE BLACK, SEE P. 579. 

FOR THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS, SEE P. 581. 

DENNIS ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE CASE IS STATED IN THE OPINION OF THE CHIEF JUSTICE, PP. 495-499. 
AFFIRMED, P. 517. 

MR. CHIEF JUSTICE VINSON ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE REED, MR. JUSTICE BURTON AND MR. JUSTICE
MINTON JOIN. 

PETITIONERS WERE INDICTED IN JULY, 1948, FOR VIOLATION OF THE
CONSPIRACY PROVISIONS OF THE SMITH ACT, 54 STAT. 671, 18 U.S.C. (1946
ED.)  SEC.  11, DURING THE PERIOD OF APRIL, 1945, TO JULY, 1948.  THE
PRETRIAL MOTION TO QUASH THE INDICTMENT ON THE GROUNDS, INTER ALIA,
THAT THE STATUTE WAS UNCONSTITUTIONAL WAS DENIED, UNITED STATES V.
FOSTER, 80 F.SUPP.  479, AND THE CASE WAS SET FOR TRIAL ON JANUARY 17,
1949.  A VERDICT OF GUILTY AS TO ALL THE PETITIONERS WAS RETURNED BY
THE JURY ON OCTOBER 14, 1949.  THE COURT OF APPEALS AFFIRMED THE
CONVICTIONS.  183 F.2D 201.  WE GRANTED CERTIORARI, 340 U.S. 863,
LIMITED TO THE FOLLOWING TWO QUESTIONS:  (1) WHETHER EITHER SEC. 2 OR
SEC. 3 OF THE SMITH ACT, INHERENTLY OR AS CONSTRUED AND APPLIED IN THE
INSTANT CASE, VIOLATES THE FIRST AMENDMENT AND OTHER PROVISIONS OF THE
BILL OF RIGHTS; (2) WHETHER EITHER SEC. 2 OR SEC. 3 OF THE ACT,
INHERENTLY OR AS CONSTRUED AND APPLIED IN THE INSTANT CASE, VIOLATES
THE FIRST AND FIFTH AMENDMENTS BECAUSE OF INDEFINITENESS. 

ED.)  SECS.  10, 11(SEE PRESENT 18 U.S.C. SEC. 2385), PROVIDE AS
FOLLOWS: 

"SEC. 2.  (A)  IT SHALL BE UNLAWFUL FOR ANY PERSON - 

"(1)  TO KNOWINGLY OR WILLFULLY ADVOCATE, ABET, ADVISE, OR TEACH THE
DUTY, NECESSITY, DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR
DESTROYING ANY GOVERNMENT IN THE UNITED STATES BY FORCE OR VIOLENCE, OR
BY THE ASSASSINATION OF ANY OFFICER OF ANY SUCH GOVERNMENT; 

"(2)  WITH INTENT TO CAUSE THE OVERTHROW OR DESTRUCTION OF ANY
GOVERNMENT IN THE UNITED STATES, TO PRINT, PUBLISH, EDIT, ISSUE,
CIRCULATE, SELL, DISTRIBUTE, OR PUBLICLY DISPLAY ANY WRITTEN OR PRINTED
MATTER ADVOCATING, ADVISING, OR TEACHING THE DUTY, NECESSITY,
DESIRABILITY, OR PROPRIETY OF OVERTHROWING OR DESTROYING ANY GOVERNMENT
IN THE UNITED STATES BY FORCE OR VIOLENCE; 

"(3)  TO ORGANIZE OR HELP TO ORGANIZE ANY SOCIETY, GROUP, OR ASSEMBLY
OF PERSONS WHO TEACH, ADVOCATE, OR ENCOURAGE THE OVERTHROW OR
DESTRUCTION OF ANY GOVERNMENT IN THE UNITED STATES BY FORCE OR
VIOLENCE; OR TO BE OR BECOME A MEMBER OF, OR AFFILIATE WITH, ANY SUCH
SOCIETY, GROUP, OR ASSEMBLY OF PERSONS, KNOWING THE PURPOSES THEREOF. 

"(B)  FOR THE PURPOSES OF THIS SECTION, THE TERM 'GOVERNMENT IN THE
UNITED STATES' MEANS THE GOVERNMENT OF THE UNITED STATES, THE
GOVERNMENT OF ANY STATE, TERRITORY, OR POSSESSION OF THE UNITED STATES,
THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR THE GOVERNMENT OF ANY
POLITICAL SUBDIVISION OF ANY OF THEM. 

"SEC. 3.  IT SHALL BE UNLAWFUL FOR ANY PERSON TO ATTEMPT TO COMMIT,
OR TO CONSPIRE TO COMMIT, ANY OF THE ACTS PROHIBITED BY THE PROVISIONS
OF THIS TITLE." 

THE INDICTMENT CHARGED THE PETITIONERS WITH WILFULLY AND KNOWINGLY
CONSPIRING (1) TO ORGANIZE AS THE COMMUNIST PARTY OF THE UNITED STATES
OF AMERICA A SOCIETY, GROUP AND ASSEMBLY OF PERSONS WHO TEACH AND
ADVOCATE THE OVERTHROW AND DESTRUCTION OF THE GOVERNMENT OF THE UNITED
STATES BY FORCE AND VIOLENCE, AND (2) KNOWINGLY AND WILFULLY TO
ADVOCATE AND TEACH THE DUTY AND NECESSITY OF OVERTHROWING AND
DESTROYING THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE. 
THE INDICTMENT FURTHER ALLEGED THAT SEC. 2 OF THE SMITH ACT PROSCRIBES
THESE ACTS AND THAT ANY CONSPIRACY TO TAKE SUCH ACTION IS A VIOLATION
OF SEC. 3 OF THE ACT. 

THE TRIAL OF THE CASE EXTENDED OVER NINE MONTHS, SIX OF WHICH WERE
DEVOTED TO THE TAKING OF EVIDENCE, RESULTING IN A RECORD OF 16,000
PAGES.  OUR LIMITED GRANT OF THE WRIT OF CERTIORARI HAS REMOVED FROM
OUR CONSIDERATION ANY QUESTION AS TO THE SUFFICIENCY OF THE EVIDENCE TO
SUPPORT THE JURY'S DETERMINATION THAT PETITIONERS ARE GUILTY OF THE
OFFENSE CHARGED.  WHETHER ON THIS RECORD PETITIONERS DID IN FACT
ADVOCATE THE OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE IS NOT
BEFORE US, AND WE MUST BASE ANY DISCUSSION OF THIS POINT UPON THE
CONCLUSIONS STATED IN THE OPINION OF THE COURT OF APPEALS, WHICH
TREATED THE ISSUE IN GREAT DETAIL.  THAT COURT HELD THAT THE RECORD IN
THIS CASE AMPLY SUPPORTS THE NECESSARY FINDING OF THE JURY THAT
PETITIONERS, THE LEADERS OF THE COMMUNIST PARTY IN THIS COUNTRY, WERE
UNWILLING TO WORK WITHIN OUR FRAMEWORK OF DEMOCRACY, BUT INTENDED TO
INITIATE A VIOLENT REVOLUTION WHENEVER THE PROPITIOUS OCCASION
APPEARED.  PETITIONERS DISPUTE THE MEANING TO BE DRAWN FROM THE
EVIDENCE, CONTENDING THAT THE MARXIST-LENINIST DOCTRINE THEY ADVOCATED
TAUGHT THAT FORCE AND VIOLENCE TO ACHIEVE A COMMUNIST FORM OF
GOVERNMENT IN AN EXISTING DEMOCRATIC STATE WOULD BE NECESSARY ONLY
BECAUSE THE RULING CLASSES OF THAT STATE WOULD NEVER PERMIT THE
TRANSFORMATION TO BE ACCOMPLISHED PEACEFULLY, BUT WOULD USE FORCE AND
VIOLENCE TO DEFEAT ANY PEACEFUL POLITICAL AND ECONOMIC GAIN THE
COMMUNISTS COULD ACHIEVE.  BUT THE COURT OF APPEALS HELD THAT THE
RECORD SUPPORTS THE FOLLOWING BROAD CONCLUSIONS:  BY VIRTUE OF THEIR
CONTROL OVER THE POLITICAL APPARATUS OF THE COMMUNIST POLITICAL
ASSOCIATION,  FN1  PETITIONERS WERE ABLE TO TRANSFORM THAT ORGANIZATION
INTO THE COMMUNIST PARTY; THAT THE POLICIES OF THE ASSOCIATION WERE
CHANGED FROM PEACEFUL COOPERATION WITH THE UNITED STATES AND ITS
ECONOMIC AND POLITICAL STRUCTURE TO A POLICY WHICH HAD EXISTED BEFORE
THE UNITED STATES AND THE SOVIET UNION WERE FIGHTING A COMMON ENEMY,
NAMELY, A POLICY WHICH WORKED FOR THE OVERTHROW OF THE GOVERNMENT BY
FORCE AND VIOLENCE; THAT THE COMMUNIST PARTY IS A HIGHLY DISCIPLINED
ORGANIZATION, ADEPT AT INFILTRATION INTO STRATEGIC POSITIONS, USE OF
ALIASES, AND DOUBLE-MEANING LANGUAGE; THAT THE PARTY IS RIGIDLY
CONTROLLED; THAT COMMUNISTS, UNLIKE OTHER POLITICAL PARTIES, TOLERATE
NO DISSENSION FROM THE POLICY LAID DOWN BY THE GUIDING FORCES, BUT THAT
THE APPROVED PROGRAM IS SLAVISHLY FOLLOWED BY THE MEMBERS OF THE PARTY;
THAT THE LITERATURE OF THE PARTY AND THE STATEMENTS AND ACTIVITIES OF
ITS LEADERS, PETITIONERS HERE, ADVOCATE, AND THE GENERAL GOAL OF THE
PARTY WAS, DURING THE PERIOD IN QUESTION, TO ACHIEVE A SUCCESSFUL
OVERTHROW OF THE EXISTING ORDER BY FORCE AND VIOLENCE. 

                                  I. 

IT WILL BE HELPFUL IN CLARIFYING THE ISSUES TO TREAT NEXT THE
CONTENTION THAT THE TRIAL JUDGE IMPROPERLY INTERPRETED THE STATUTE BY
CHARGING THAT THE STATUTE REQUIRED AN UNLAWFUL INTENT BEFORE THE JURY
COULD CONVICT.  MORE SPECIFICALLY, HE CHARGED THAT THE JURY COULD NOT
FIND THE PETITIONERS GUILTY UNDER THE INDICTMENT UNLESS THEY FOUND THAT
PETITIONERS HAD THE INTENT TO "OVERTHROW  ...  THE GOVERNMENT OF THE
UNITED STATES BY FORCE AND VIOLENCE AS SPEEDILY AS CIRCUMSTANCES WOULD
PERMIT." 

ADVOCATE,  ... OR TEACH THE DUTY, NECESSITY, DESIRABILITY, OR PROPRIETY
OF OVERTHROWING OR DESTROYING ANY GOVERNMENT IN THE UNITED STATES BY
FORCE OR VIOLENCE  ...  "; SECTION 2(A)(3), "TO ORGANIZE OR HELP TO
ORGANIZE ANY SOCIETY, GROUP, OR ASSEMBLY OF PERSONS WHO TEACH,
ADVOCATE, OR ENCOURAGE THE OVERTHROW  ...  " BECAUSE OF THE FACT THAT
SEC. 2(A)(2) EXPRESSLY REQUIRES A SPECIFIC INTENT TO OVERTHROW THE
GOVERNMENT, AND BECAUSE OF THE ABSENCE OF PRECISE LANGUAGE IN THE
FOREGOING SUBSECTIONS, IT IS CLAIMED THAT CONGRESS DELIBERATELY OMITTED
ANY SUCH REQUIREMENT.  WE DO NOT AGREE.  IT WOULD REQUIRE A FAR GREATER
INDICATION OF CONGRESSIONAL DESIRE THAT INTENT NOT BE MADE AN ELEMENT
OF THE CRIME THAN THE USE OF THE DISJUNCTIVE "KNOWINGLY OR WILLFULLY"
IN SEC. 2(A)(1), OR THE OMISSION OF EXACT LANGUAGE IN SEC. 2(A)(3). 
THE STRUCTURE AND PURPOSE OF THE STATUTE DEMAND THE INCLUSION OF INTENT
AS AN ELEMENT OF THE CRIME.  CONGRESS WAS CONCERNED WITH THOSE WHO
ADVOCATE AND ORGANIZE FOR THE OVERTHROW OF THE GOVERNMENT.  CERTAINLY
THOSE WHO RECRUIT AND COMBINE FOR THE PURPOSE OF ADVOCATING OVERTHROW
INTEND TO BRING ABOUT THAT OVERTHROW.  WE HOLD THAT THE STATUTE
REQUIRES AS AN ESSENTIAL ELEMENT OF THE CRIME PROOF OF THE INTENT OF
THOSE WHO ARE CHARGED WITH ITS VIOLATION TO OVERTHROW THE GOVERNMENT BY
FORCE AND VIOLENCE.  SEE WILLIAMS V. UNITED STATES, 341 U.S. 97, 101
102(1951); SCREWS V. UNITED STATES, 325 U.S. 91, 101-105(1945); CRAMER
V. UNITED STATES, 325 U.S. 1, 31(1945). 

NOR DOES THE FACT THAT THERE MUST BE AN INVESTIGATION OF A STATE OF
MIND UNDER THIS INTERPRETATION AFFORD ANY BASIS FOR REJECTION OF THAT
MEANING.  A SURVEY OF TITLE 18 OF THE U.S.C. INDICATES THAT THE VAST
MAJORITY OF THE CRIMES DESIGNATED BY THAT TITLE REQUIRE, BY EXPRESS
LANGUAGE, PROOF OF THE EXISTENCE OF A CERTAIN MENTAL STATE, IN WORDS
SUCH AS "KNOWINGLY," "MALICIOUSLY," "WILFULLY," "WITH THE PURPOSE OF,"
"WITH INTENT TO," OR COMBINATIONS OR PERMUTATIONS OF THESE AND
SYNONYMOUS TERMS.  THE EXISTENCE OF A MENS REA IS THE RULE OF, RATHER
THAN THE EXCEPTION TO, THE PRINCIPLES OF ANGLO-AMERICAN CRIMINAL
JURISPRUDENCE.  SEE AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.
382, 411(1950). 

IT HAS BEEN SUGGESTED THAT THE PRESENCE OF INTENT MAKES A DIFFERENCE
IN THE LAW WHEN AN "ACT OTHERWISE EXCUSABLE OR CARRYING MINOR
PENALTIES" IS ACCOMPANIED BY SUCH AN EVIL INTENT.  YET THE EXISTENCE OF
SUCH AN INTENT MADE THE KILLING CONDEMNED IN SCREWS, SUPRA, AND THE
BEATING IN WILLIAMS, SUPRA, BOTH CLEARLY AND SEVERELY PUNISHABLE UNDER
STATE LAW, OFFENSES CONSTITUTIONALLY PUNISHABLE BY THE FEDERAL
GOVERNMENT.  IN THOSE CASES, THE COURT REQUIRED THE GOVERNMENT TO PROVE
THAT THE DEFENDANTS INTENDED TO DEPRIVE THE VICTIM OF A CONSTITUTIONAL
RIGHT.  IF THAT PRECISE MENTAL STATE MAY BE AN ESSENTIAL ELEMENT OF A
CRIME, SURELY AN INTENT TO OVERTHROW THE GOVERNMENT OF THE UNITED
STATES BY ADVOCACY THEREOF IS EQUALLY SUSCEPTIBLE OF PROOF.  FN2

      II. 

THE OBVIOUS PURPOSE OF THE STATUTE IS TO PROTECT EXISTING GOVERNMENT,
NOT FROM CHANGE BY PEACEABLE, LAWFUL AND CONSTITUTIONAL MEANS, BUT FROM
CHANGE BY VIOLENCE, REVOLUTION AND TERRORISM.  THAT IT IS WITHIN THE
POWER OF THE CONGRESS TO PROTECT THE GOVERNMENT OF THE UNITED STATES
FROM ARMED REBELLION IS A PROPOSITION WHICH REQUIRES LITTLE
DISCUSSION.  WHATEVER THEORETICAL MERIT THERE MAY BE TO THE ARGUMENT
THAT THERE IS A "RIGHT" TO REBELLION AGAINST DICTATORIAL GOVERNMENTS IS
WITHOUT FORCE WHERE THE EXISTING STRUCTURE OF THE GOVERNMENT PROVIDES
FOR PEACEFUL AND ORDERLY CHANGE.  WE REJECT ANY PRINCIPLE OF
GOVERNMENTAL HELPLESSNESS IN THE FACE OF PREPARATION FOR REVOLUTION,
WHICH PRINCIPLE, CARRIED TO ITS LOGICAL CONCLUSION, MUST LEAD TO
ANARCHY.  NO ONE COULD CONCEIVE THAT IT IS NOT WITHIN THE POWER OF
CONGRESS TO PROHIBIT ACTS INTENDED TO OVERTHROW THE GOVERNMENT BY FORCE
AND VIOLENCE.  THE QUESTION WITH WHICH WE ARE CONCERNED HERE IS NOT
WHETHER CONGRESS HAS SUCH POWER, BUT WHETHER THE MEANS WHICH IT HAS
EMPLOYED CONFLICT WITH THE FIRST AND FIFTH AMENDMENTS TO THE
CONSTITUTION. 

ONE OF THE BASES FOR THE CONTENTION THAT THE MEANS WHICH CONGRESS HAS
EMPLOYED ARE INVALID TAKES THE FORM OF AN ATTACK ON THE FACE OF THE
STATUTE ON THE GROUNDS THAT BY ITS TERMS IT PROHIBITS ACADEMIC
DISCUSSION OF THE MERITS OF MARXISM-LENINISM, THAT IT STIFLES IDEAS AND
IS CONTRARY TO ALL CONCEPTS OF A FREE SPEECH AND A FREE PRESS. 
ALTHOUGH WE DO NOT AGREE THAT THE LANGUAGE ITSELF HAS THAT
SIGNIFICANCE, WE MUST BEAR IN MIND THAT IT IS THE DUTY OF THE FEDERAL
COURTS TO INTERPRET FEDERAL LEGISLATION IN A MANNER NOT INCONSISTENT
WITH THE DEMANDS OF THE CONSTITUTION.  AMERICAN COMMUNICATIONS ASSN. V.
DOUDS, 339 U.S. 382, 407(1950).  WE ARE NOT HERE CONFRONTED WITH CASES
SIMILAR TO THORNHILL V. ALABAMA, 310 U.S. 88(1940); HERNDON V. LOWRY,
301 U.S. 242(1937); AND DE JONGE V. OREGON, 299 U.S. 353(1937), WHERE A
STATE COURT HAD GIVEN A MEANING TO A STATE STATUTE WHICH WAS
INCONSISTENT WITH THE FEDERAL CONSTITUTION.  THIS IS A FEDERAL STATUTE
WHICH WE MUST INTERPRET AS WELL AS JUDGE.  HEREIN LIES THE FALLACY OF
RELIANCE UPON THE MANNER IN WHICH THIS COURT HAS TREATED JUDGMENTS OF
STATE COURTS.  WHERE THE STATUTE AS CONSTRUED BY THE STATE COURT
TRANSGRESSED THE FIRST AMENDMENT, WE COULD NOT BUT INVALIDATE THE
JUDGMENTS OF CONVICTION. 

THE VERY LANGUAGE OF THE SMITH ACT NEGATES THE INTERPRETATION WHICH
PETITIONERS WOULD HAVE US IMPOSE ON THAT ACT.  IT IS DIRECTED AT
ADVOCACY, NOT DISCUSSION.  THUS, THE TRIAL JUDGE PROPERLY CHARGED THE
JURY THAT THEY COULD NOT CONVICT IF THEY FOUND THAT PETITIONERS DID "NO
MORE THAN PURSUE PEACEFUL STUDIES AND DISCUSSIONS OR TEACHING AND
ADVOCACY IN THE REALM OF IDEAS."  HE FURTHER CHARGED THAT IT WAS NOT
UNLAWFUL "TO CONDUCT IN AN AMERICAN COLLEGE OR UNIVERSITY A COURSE
EXPLAINING THE PHILOSOPHICAL THEORIES SET FORTH IN THE BOOKS WHICH HAVE
BEEN PLACED IN EVIDENCE."  SUCH A CHARGE IS IN STRICT ACCORD WITH THE
STATUTORY LANGUAGE, AND ILLUSTRATES THE MEANING TO BE PLACED ON THOSE
WORDS.  CONGRESS DID NOT INTEND TO ERADICATE THE FREE DISCUSSION OF
POLITICAL THEORIES, TO DESTROY THE TRADITIONAL RIGHTS OF AMERICANS TO
DISCUSS AND EVALUATE IDEAS WITHOUT FEAR OF GOVERNMENTAL SANCTION. 
RATHER CONGRESS WAS CONCERNED WITH THE VERY KIND OF ACTIVITY IN WHICH
THE EVIDENCE SHOWED THESE PETITIONERS ENGAGED. 
        III. 

BUT ALTHOUGH THE STATUTE IS NOT DIRECTED AT THE HYPOTHETICAL CASES
WHICH PETITIONERS HAVE CONJURED, ITS APPLICATION IN THIS CASE HAS
RESULTED IN CONVICTIONS FOR THE TEACHING AND ADVOCACY OF THE OVERTHROW
OF THE GOVERNMENT BY FORCE AND VIOLENCE, WHICH, EVEN THOUGH COUPLED
WITH THE INTENT TO ACCOMPLISH THAT OVERTHROW, CONTAINS AN ELEMENT OF
SPEECH.  FOR THIS REASON, WE MUST PAY SPECIAL HEED TO THE DEMANDS OF
THE FIRST AMENDMENT MARKING OUT THE BOUNDARIES OF SPEECH.    WE POINTED
OUT IN DOUDS, SUPRA, THAT THE BASIS OF THE FIRST AMENDMENT IS THE
HYPOTHESIS THAT SPEECH CAN REBUT SPEECH, PROPAGANDA WILL ANSWER
PROPAGANDA, FREE DEBATE OF IDEAS WILL RESULT IN THE WISEST GOVERNMENTAL
POLICIES.  IT IS FOR THIS REASON THAT THIS COURT HAS RECOGNIZED THE
INHERENT VALUE OF FREE DISCOURSE.  AN ANALYSIS OF THE LEADING CASES IN
THIS COURT WHICH HAVE INVOLVED DIRECT LIMITATIONS ON SPEECH, HOWEVER,
WILL DEMONSTRATE THAT BOTH THE MAJORITY OF THE COURT AND THE DISSENTERS
IN PARTICULAR CASES HAVE RECOGNIZED THAT THIS IS NOT AN UNLIMITED,
UNQUALIFIED RIGHT, BUT THAT THE SOCIETAL VALUE OF SPEECH MUST, ON
OCCASION, BE SUBORDINATED TO OTHER VALUES AND CONSIDERATIONS. 

NO IMPORTANT CASE INVOLVING FREE SPEECH WAS DECIDED BY THIS COURT
PRIOR TO SCHENCK V. UNITED STATES, 249 U.S. 47(1919).  INDEED, THE
SUMMARY TREATMENT ACCORDED AN ARGUMENT BASED UPON AN INDIVIDUAL'S CLAIM
THAT THE FIRST AMENDMENT PROTECTED CERTAIN UTTERANCES INDICATES THAT
THE COURT AT EARLIER DATES PLACED NO UNIQUE EMPHASIS UPON THAT RIGHT. 
FN3  IT WAS NOT UNTIL THE CLASSIC DICTUM OF JUSTICE HOLMES IN THE
SCHENCK CASE THAT SPEECH PER SE RECEIVED THAT EMPHASIS IN A MAJORITY
OPINION.  THAT CASE INVOLVED A CONVICTION UNDER THE CRIMINAL ESPIONAGE
ACT, 40 STAT. 217.  THE QUESTION THE COURT FACED WAS WHETHER THE
EVIDENCE WAS SUFFICIENT TO SUSTAIN THE CONVICTION.  WRITING FOR A
UNANIMOUS COURT, JUSTICE HOLMES STATED THAT THE "QUESTION IN EVERY CASE
IS WHETHER THE WORDS USED ARE USED IN SUCH CIRCUMSTANCES AND ARE OF
SUCH A NATURE AS TO CREATE A CLEAR AND PRESENT DANGER THAT THEY WILL
BRING ABOUT THE SUBSTANTIVE EVILS THAT CONGRESS HAS A RIGHT TO
PREVENT."  249 U.S. AT 52.  BUT THE FORCE OF EVEN THIS EXPRESSION IS
CONSIDERABLY WEAKENED BY THE REFERENCE AT THE END OF THE OPINION TO
GOLDMAN V. UNITED STATES, 245 U.S. 474(1918), A PROSECUTION UNDER THE
SAME STATUTE.  SAID JUSTICE HOLMES, "INDEED (GOLDMAN) MIGHT BE SAID TO
DISPOSE OF THE PRESENT CONTENTION IF THE PRECEDENT COVERS ALL MEDIA
CONCLUDENDI.  BUT AS THE RIGHT TO FREE SPEECH WAS NOT REFERRED TO
SPECIALLY, WE HAVE THOUGHT FIT TO ADD A FEW WORDS."  249 U.S. AT 52. 
THE FACT IS INESCAPABLE, TOO, THAT THE PHRASE BORE NO CONNOTATION THAT
THE DANGER WAS TO BE ANY THREAT TO THE SAFETY OF THE REPUBLIC.  THE
CHARGE WAS CAUSING AND ATTEMPTING TO CAUSE INSUBORDINATION IN THE
MILITARY FORCES AND OBSTRUCT RECRUITING.  THE OBJECTIONABLE DOCUMENT
DENOUNCED CONSCRIPTION AND ITS MOST INCITING SENTENCE WAS, "YOU MUST DO
YOUR SHARE TO MAINTAIN, SUPPORT AND UPHOLD THE RIGHTS OF THE PEOPLE OF
THIS COUNTRY."  249 U.S. AT 51.  FIFTEEN THOUSAND COPIES WERE PRINTED
AND SOME CIRCULATED.  THIS INSUBSTANTIAL GESTURE TOWARD INSUBORDINATION
IN 1917 DURING WAR WAS HELD TO BE A CLEAR AND PRESENT DANGER OF
BRINGING ABOUT THE EVIL OF MILITARY INSUBORDINATION. 

IN SEVERAL LATER CASES INVOLVING CONVICTIONS UNDER THE CRIMINAL
ESPIONAGE ACT, THE NUB OF THE EVIDENCE THE COURT HELD SUFFICIENT TO
MEET THE "CLEAR AND PRESENT DANGER" TEST ENUNCIATED IN SCHENCK WAS AS
FOLLOWS:  FROHWERK V. UNITED STATES, 249 U.S. 204(1919) - PUBLICATION
OF TWELVE NEWSPAPER ARTICLES ATTACKING THE WAR; DEBS V. UNITED STATES,
249 U.S. 211(1919) - ONE SPEECH ATTACKING UNITED STATES' PARTICIPATION
IN THE WAR; ABRAMS V. UNITED STATES, 250 U.S. 616(1919) - CIRCULATION
OF COPIES OF TWO DIFFERENT SOCIALIST CIRCULARS ATTACKING THE WAR;
SCHAEFER V. UNITED STATES, 251 U.S. 466(1920) - PUBLICATION OF A GERMAN
LANGUAGE NEWSPAPER WITH ALLEGEDLY FALSE ARTICLES, CRITICAL OF
CAPITALISM AND THE WAR; PIERCE V. UNITED STATES, 252 U.S. 239(1920) -
CIRCULATION OF COPIES OF A FOUR-PAGE PAMPHLET WRITTEN BY A CLERGYMAN,
ATTACKING THE PURPOSES OF THE WAR AND UNITED STATES' PARTICIPATION
THEREIN.  JUSTICE HOLMES WROTE THE OPINIONS FOR A UNANIMOUS COURT IN
SCHENCK, FROHWERK AND DEBS.  HE AND JUSTICE BRANDEIS DISSENTED IN
ABRAMS, SCHAEFER AND PIERCE.  THE BASIS OF THESE DISSENTS WAS THAT,
BECAUSE OF THE PROTECTION WHICH THE FIRST AMENDMENT GIVES TO SPEECH,
THE EVIDENCE IN EACH CASE WAS INSUFFICIENT TO SHOW THAT THE DEFENDANTS
HAD CREATED THE REQUISITE DANGER UNDER SCHENCK.  BUT THESE DISSENTS DID
NOT MARK A CHANGE OF PRINCIPLE.  THE DISSENTERS DOUBTED ONLY THE
PROBABLE EFFECTIVENESS OF THE PUNY EFFORTS TOWARD SUBVERSION.  IN
ABRAMS, THEY WROTE, "I DO NOT DOUBT FOR A MOMENT THAT BY THE SAME
REASONING THAT WOULD JUSTIFY PUNISHING PERSUASION TO MURDER, THE UNITED
STATES CONSTITUTIONALLY MAY PUNISH SPEECH THAT PRODUCES OR IS INTENDED
TO PRODUCE A CLEAR AND IMMINENT DANGER THAT IT WILL BRING ABOUT
FORTHWITH CERTAIN SUBSTANTIVE EVILS THAT THE UNITED STATES
CONSTITUTIONALLY MAY SEEK TO PREVENT."  250 U.S. AT 627.  AND IN
SCHAEFER THE TEST WAS SAID TO BE ONE OF "DEGREE," 251 U.S. AT 482,
ALTHOUGH IT IS NOT CLEAR WHETHER "DEGREE" REFERS TO CLEAR AND PRESENT
DANGER OR EVIL.  PERHAPS BOTH WERE MEANT. 

THE RULE WE DEDUCE FROM THESE CASES IS THAT WHERE AN OFFENSE IS
SPECIFIED BY A STATUTE IN NONSPEECH OR NONPRESS TERMS, A CONVICTION
RELYING UPON SPEECH OR PRESS AS EVIDENCE OF VIOLATION MAY BE SUSTAINED
ONLY WHEN THE SPEECH OR PUBLICATION CREATED A "CLEAR AND PRESENT
DANGER" OF ATTEMPTING OR ACCOMPLISHING THE PROHIBITED CRIME, E.G.,
INTERFERENCE WITH ENLISTMENT.  THE DISSENTS, WE REPEAT, IN EMPHASIZING
THE VALUE OF SPEECH, WERE ADDRESSED TO THE ARGUMENT OF THE SUFFICIENCY
OF THE EVIDENCE. 

THE NEXT IMPORTANT CASE  FN4  BEFORE THE COURT IN WHICH FREE SPEECH
WAS THE CRUX OF THE CONFLICT WAS GITLOW V. NEW YORK, 268 U.S.
652(1925).  THERE NEW YORK HAD MADE IT A CRIME TO ADVOCATE "THE
NECESSITY OR PROPRIETY OF OVERTHROWING  ...  ORGANIZED GOVERNMENT BY
FORCE ...  "  THE EVIDENCE OF VIOLATION OF THE STATUTE WAS THAT THE
DEFENDANT HAD PUBLISHED A MANIFESTO ATTACKING THE GOVERNMENT AND
CAPITALISM.  THE CONVICTIONS WERE SUSTAINED, JUSTICES HOLMES AND
BRANDEIS DISSENTING.  THE MAJORITY REFUSED TO APPLY THE "CLEAR AND
PRESENT DANGER" TEST TO THE SPECIFIC UTTERANCE.  ITS REASONING WAS AS
FOLLOWS:  THE "CLEAR AND PRESENT DANGER" TEST WAS APPLIED TO THE
UTTERANCE ITSELF IN SCHENCK BECAUSE THE QUESTION WAS MERELY ONE OF
SUFFICIENCY OF EVIDENCE UNDER AN ADMITTEDLY CONSTITUTIONAL STATUTE. 
GITLOW, HOWEVER, PRESENTED A DIFFERENT QUESTION.  THERE A LEGISLATURE
HAD FOUND THAT A CERTAIN KIND OF SPEECH WAS, ITSELF, HARMFUL AND
UNLAWFUL.  THE CONSTITUTIONALITY OF SUCH A STATE STATUTE HAD TO BE
ADJUDGED BY THIS COURT JUST AS IT DETERMINED THE CONSTITUTIONALITY OF
ANY STATE STATUTE, NAMELY, WHETHER THE STATUTE WAS "REASONABLE."  SINCE
IT WAS ENTIRELY REASONABLE FOR A STATE TO ATTEMPT TO PROTECT ITSELF
FROM VIOLENT OVERTHROW, THE STATUTE WAS PERFORCE REASONABLE.  THE ONLY
QUESTION REMAINING IN THE CASE BECAME WHETHER THERE WAS EVIDENCE TO
SUPPORT THE CONVICTION, A QUESTION WHICH GAVE THE MAJORITY NO
DIFFICULTY.  JUSTICES HOLMES AND BRANDEIS REFUSED TO ACCEPT THIS
APPROACH, BUT INSISTED THAT WHEREVER SPEECH WAS THE EVIDENCE OF THE
VIOLATION, IT WAS NECESSARY TO SHOW THAT THE SPEECH CREATED THE "CLEAR
AND PRESENT DANGER" OF THE SUBSTANTIVE EVIL WHICH THE LEGISLATURE HAD
THE RIGHT TO PREVENT.  JUSTICES HOLMES AND BRANDEIS, THEN, MADE NO
DISTINCTION BETWEEN A FEDERAL STATUTE WHICH MADE CERTAIN ACTS UNLAWFUL,
THE EVIDENCE TO SUPPORT THE CONVICTION BEING SPEECH, AND A STATUTE
WHICH MADE SPEECH ITSELF THE CRIME.  THIS APPROACH WAS EMPHASIZED IN
WHITNEY V. CALIFORNIA, 274 U.S. 357(1927), WHERE THE COURT WAS
CONFRONTED WITH A CONVICTION UNDER THE CALIFORNIA CRIMINAL SYNDICALIST
STATUTE.  THE COURT SUSTAINED THE CONVICTION, JUSTICES BRANDEIS AND
HOLMES CONCURRING IN THE RESULT.  IN THEIR CONCURRENCE THEY REPEATED
THAT EVEN THOUGH THE LEGISLATURE HAD DESIGNATED CERTAIN SPEECH AS
CRIMINAL, THIS COULD NOT PREVENT THE DEFENDANT FROM SHOWING THAT THERE
WAS NO DANGER THAT THE SUBSTANTIVE EVIL WOULD BE BROUGHT ABOUT. 

ALTHOUGH NO CASE SUBSEQUENT TO WHITNEY AND GITLOW HAS EXPRESSLY
OVERRULED THE MAJORITY OPINIONS IN THOSE CASES, THERE IS LITTLE DOUBT
THAT SUBSEQUENT OPINIONS HAVE INCLINED TOWARD THE HOLMES-BRANDEIS
RATIONALE.  FN5  AND IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, SUPRA,
WE WERE CALLED UPON TO DECIDE THE VALIDITY OF SEC. 9(H) OF THE LABOR
MANAGEMENT RELATIONS ACT OF 1947.  THAT SECTION REQUIRED OFFICIALS OF
UNIONS WHICH DESIRED TO AVAIL THEMSELVES OF THE FACILITIES OF THE
NATIONAL LABOR RELATIONS BOARD TO TAKE OATHS THAT THEY DID NOT BELONG
TO THE COMMUNIST PARTY AND THAT THEY DID NOT BELIEVE IN THE OVERTHROW
OF THE GOVERNMENT BY FORCE AND VIOLENCE.  WE POINTED OUT THAT CONGRESS
DID NOT INTEND TO PUNISH BELIEF, BUT RATHER INTENDED TO REGULATE THE
CONDUCT OF UNION AFFAIRS.  WE THEREFORE HELD THAT ANY INDIRECT SANCTION
ON SPEECH WHICH MIGHT ARISE FROM THE OATH REQUIREMENT DID NOT PRESENT A
PROPER CASE FOR THE "CLEAR AND PRESENT DANGER" TEST, FOR THE REGULATION
WAS AIMED AT CONDUCT RATHER THAN SPEECH.  IN DISCUSSING THE PROPER
MEASURE OF EVALUATION OF THIS KIND OF LEGISLATION, WE SUGGESTED THAT
THE HOLMES-BRANDEIS PHILOSOPHY INSISTED THAT WHERE THERE WAS A DIRECT
RESTRICTION UPON SPEECH, A "CLEAR AND PRESENT DANGER" THAT THE
SUBSTANTIVE EVIL WOULD BE CAUSED WAS NECESSARY BEFORE THE STATUTE IN
QUESTION COULD BE CONSTITUTIONALLY APPLIED.  AND WE STATED, "(THE
FIRST) AMENDMENT REQUIRES THAT ONE BE PERMITTED TO BELIEVE WHAT HE
WILL.  IT REQUIRES THAT ONE BE PERMITTED TO ADVOCATE WHAT HE WILL
UNLESS THERE IS A CLEAR AND PRESENT DANGER THAT A SUBSTANTIAL PUBLIC
EVIL WILL RESULT THEREFROM."  339 U.S. AT 412.  BUT WE FURTHER
SUGGESTED THAT NEITHER JUSTICE HOLMES NOR JUSTICE BRANDEIS EVER
ENVISIONED THAT A SHORTHAND PHRASE SHOULD BE CRYSTALLIZED INTO A RIGID
RULE TO BE APPLIED INFLEXIBLY WITHOUT REGARD TO THE CIRCUMSTANCES OF
EACH CASE.  SPEECH IS NOT AN ABSOLUTE, ABOVE AND BEYOND CONTROL BY THE
LEGISLATURE WHEN ITS JUDGMENT, SUBJECT TO REVIEW HERE, IS THAT CERTAIN
KINDS OF SPEECH ARE SO UNDESIRABLE AS TO WARRANT CRIMINAL SANCTION. 
NOTHING IS MORE CERTAIN IN MODERN SOCIETY THAN THE PRINCIPLE THAT THERE
ARE NO ABSOLUTES, THAT A NAME, A PHRASE, A STANDARD HAS MEANING ONLY
WHEN ASSOCIATED WITH THE CONSIDERATIONS WHICH GAVE BIRTH TO THE
NOMENCLATURE.  SEE AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. AT
397.  TO THOSE WHO WOULD PARALYZE OUR GOVERNMENT IN THE FACE OF
IMPENDING THREAT BY ENCASING IT IN A SEMANTIC STRAITJACKET WE MUST
REPLY THAT ALL CONCEPTS ARE RELATIVE. 

IN THIS CASE WE ARE SQUARELY PRESENTED WITH THE APPLICATION OF THE
"CLEAR AND PRESENT DANGER" TEST, AND MUST DECIDE WHAT THAT PHRASE
IMPORTS.  WE FIRST NOTE THAT MANY OF THE CASES IN WHICH THIS COURT HAS
REVERSED CONVICTIONS BY USE OF THIS OR SIMILAR TESTS HAVE BEEN BASED ON
THE FACT THAT THE INTEREST WHICH THE STATE WAS ATTEMPTING TO PROTECT
WAS ITSELF TOO INSUBSTANTIAL TO WARRANT RESTRICTION OF SPEECH.  IN THIS
CATEGORY WE MAY PUT SUCH CASES AS SCHNEIDER V. STATE, 308 U.S.
147(1939); CANTWELL V. CONNECTICUT, 310 U.S. 296(1940); MARTIN V.
STRUTHERS, 319 U.S. 141(1943); WEST VIRGINIA BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624(1943); THOMAS V. COLLINS, 323 U.S. 516(1945);
MARSH V. ALABAMA, 326 U.S. 501(1946); BUT CF. PRINCE V. MASSACHUSETTS,
321 U.S. 158(1944); COX V. NEW HAMPSHIRE, 312 U.S. 569(1941). 
OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE IS CERTAINLY A
SUBSTANTIAL ENOUGH INTEREST FOR THE GOVERNMENT TO LIMIT SPEECH. 
INDEED, THIS IS THE ULTIMATE VALUE OF ANY SOCIETY, FOR IF A SOCIETY
CANNOT PROTECT ITS VERY STRUCTURE FROM ARMED INTERNAL ATTACK, IT MUST
FOLLOW THAT NO SUBORDINATE VALUE CAN BE PROTECTED.  IF, THEN, THIS
INTEREST MAY BE PROTECTED, THE LITERAL PROBLEM WHICH IS PRESENTED IS
WHAT HAS BEEN MEANT BY THE USE OF THE PHRASE "CLEAR AND PRESENT DANGER"
OF THE UTTERANCES BRINGING ABOUT THE EVIL WITHIN THE POWER OF CONGRESS
TO PUNISH. 

OBVIOUSLY, THE WORDS CANNOT MEAN THAT BEFORE THE GOVERNMENT MAY ACT,
IT MUST WAIT UNTIL THE PUTSCH IS ABOUT TO BE EXECUTED, THE PLANS HAVE
BEEN LAID AND THE SIGNAL IS AWAITED.  IF GOVERNMENT IS AWARE THAT A
GROUP AIMING AT ITS OVERTHROW IS ATTEMPTING TO INDOCTRINATE ITS MEMBERS
AND TO COMMIT THEM TO A COURSE WHEREBY THEY WILL STRIKE WHEN THE
LEADERS FEEL THE CIRCUMSTANCES PERMIT, ACTION BY THE GOVERNMENT IS
REQUIRED.  THE ARGUMENT THAT THERE IS NO NEED FOR GOVERNMENT TO CONCERN
ITSELF, FOR GOVERNMENT IS STRONG, IT POSSESSES AMPLE POWERS TO PUT DOWN
A REBELLION, IT MAY DEFEAT THE REVOLUTION WITH EASE NEEDS NO ANSWER. 
FOR THAT IS NOT THE QUESTION.  CERTAINLY AN ATTEMPT TO OVERTHROW THE
GOVERNMENT BY FORCE, EVEN THOUGH DOOMED FROM THE OUTSET BECAUSE OF
INADEQUATE NUMBERS OR POWER OF THE REVOLUTIONISTS, IS A SUFFICIENT EVIL
FOR CONGRESS TO PREVENT.  THE DAMAGE WHICH SUCH ATTEMPTS CREATE BOTH
PHYSICALLY AND POLITICALLY TO A NATION MAKES IT IMPOSSIBLE TO MEASURE
THE VALIDITY IN TERMS OF THE PROBABILITY OF SUCCESS, OR THE IMMEDIACY
OF A SUCCESSFUL ATTEMPT.  IN THE INSTANT CASE THE TRIAL JUDGE CHARGED
THE JURY THAT THEY COULD NOT CONVICT UNLESS THEY FOUND THAT PETITIONERS
INTENDED TO OVERTHROW THE GOVERNMENT "AS SPEEDILY AS CIRCUMSTANCES
WOULD PERMIT."  THIS DOES NOT MEAN, AND COULD NOT PROPERLY MEAN, THAT
THEY WOULD NOT STRIKE UNTIL THERE WAS CERTAINTY OF SUCCESS.  WHAT WAS
MEANT WAS THAT THE REVOLUTIONISTS WOULD STRIKE WHEN THEY THOUGHT THE
TIME WAS RIPE.  WE MUST THEREFORE REJECT THE CONTENTION THAT SUCCESS OR
PROBABILITY OF SUCCESS IS THE CRITERION.    THE SITUATION WITH WHICH
JUSTICES HOLMES AND BRANDEIS WERE CONCERNED IN GITLOW WAS A
COMPARATIVELY ISOLATED EVENT, BEARING LITTLE RELATION IN THEIR MINDS TO
ANY SUBSTANTIAL THREAT TO THE SAFETY OF THE COMMUNITY.  SUCH ALSO IS
TRUE OF CASES LIKE FISKE V. KANSAS, 274 U.S. 380(1927), AND DE JONGE V.
OREGON, 299 U.S. 353(1937); BUT CF. LAZAR V. PENNSYLVANIA, 286 U.S.
532(1932).  THEY WERE NOT CONFRONTED WITH ANY SITUATION COMPARABLE TO
THE INSTANT ONE - THE DEVELOPMENT OF AN APPARATUS DESIGNED AND
DEDICATED TO THE OVERTHROW OF THE GOVERNMENT, IN THE CONTEXT OF WORLD
CRISIS AFTER CRISIS.    CHIEF JUDGE LEARNED HAND, WRITING FOR THE
MAJORITY BELOW, INTERPRETED THE PHRASE AS FOLLOWS: "IN EACH CASE
(COURTS) MUST ASK WHETHER THE GRAVITY OF THE 'EVIL,' DISCOUNTED BY ITS
IMPROBABILITY, JUSTIFIES SUCH INVASION OF FREE SPEECH AS IS NECESSARY
TO AVOID THE DANGER."  183 F.2D AT 212.  WE ADOPT THIS STATEMENT OF THE
RULE.  AS ARTICULATED BY CHIEF JUDGE HAND, IT IS AS SUCCINCT AND
INCLUSIVE AS ANY OTHER WE MIGHT DEVISE AT THIS TIME.  IT TAKES INTO
CONSIDERATION THOSE FACTORS WHICH WE DEEM RELEVANT, AND RELATES THEIR
SIGNIFICANCES.  MORE WE CANNOT EXPECT FROM WORDS. 

LIKEWISE, WE ARE IN ACCORD WITH THE COURT BELOW, WHICH AFFIRMED THE
TRIAL COURT'S FINDING THAT THE REQUISITE DANGER EXISTED.  THE MERE FACT
THAT FROM THE PERIOD 1945 TO 1948 PETITIONERS' ACTIVITIES DID NOT
RESULT IN AN ATTEMPT TO OVERTHROW THE GOVERNMENT BY FORCE AND VIOLENCE
IS OF COURSE NO ANSWER TO THE FACT THAT THERE WAS A GROUP THAT WAS
READY TO MAKE THE ATTEMPT.  THE FORMATION BY PETITIONERS OF SUCH A
HIGHLY ORGANIZED CONSPIRACY, WITH RIGIDLY DISCIPLINED MEMBERS SUBJECT
TO CALL WHEN THE LEADERS, THESE PETITIONERS, FELT THAT THE TIME HAD
COME FOR ACTION, COUPLED WITH THE INFLAMMABLE NATURE OF WORLD
CONDITIONS, SIMILAR UPRISINGS IN OTHER COUNTRIES, AND THE TOUCH-AND-GO
NATURE OF OUR RELATIONS WITH COUNTRIES WITH WHOM PETITIONERS WERE IN
THE VERY LEAST IDEOLOGICALLY ATTUNED, CONVINCE US THAT THEIR
CONVICTIONS WERE JUSTIFIED ON THIS SCORE.  AND THIS ANALYSIS DISPOSES
OF THE CONTENTION THAT A CONSPIRACY TO ADVOCATE, AS DISTINGUISHED FROM
THE ADVOCACY ITSELF, CANNOT BE CONSTITUTIONALLY RESTRAINED, BECAUSE IT
COMPRISES ONLY THE PREPARATION.  IT IS THE EXISTENCE OF THE CONSPIRACY
WHICH CREATES THE DANGER.  CF. PINKERTON V. UNITED STATES, 328 U.S.
640(1946); GOLDMAN V. UNITED STATES, 245 U.S. 474(1918); UNITED STATES
V. RABINOWICH, 238 U.S. 78(1915).  IF THE INGREDIENTS OF THE REACTION
ARE PRESENT, WE CANNOT BIND THE GOVERNMENT TO WAIT UNTIL THE CATALYST
IS ADDED. 

         IV. 

ALTHOUGH WE HAVE CONCLUDED THAT THE FINDING THAT THERE WAS A
SUFFICIENT DANGER TO WARRANT THE APPLICATION OF THE STATUTE WAS
JUSTIFIED ON THE MERITS, THERE REMAINS THE PROBLEM OF WHETHER THE TRIAL
JUDGE'S TREATMENT OF THE ISSUE WAS CORRECT.  HE CHARGED THE JURY, IN
RELEVANT PART, AS FOLLOWS: 

"IN FURTHER CONSTRUCTION AND INTERPRETATION OF THE STATUTE I CHARGE
YOU THAT IT IS NOT THE ABSTRACT DOCTRINE OF OVERTHROWING OR DESTROYING
ORGANIZED GOVERNMENT BY UNLAWFUL MEANS WHICH IS DENOUNCED BY THIS LAW,
BUT THE TEACHING AND ADVOCACY OF ACTION FOR THE ACCOMPLISHMENT OF THAT
PURPOSE, BY LANGUAGE REASONABLY AND ORDINARILY CALCULATED TO INCITE
PERSONS TO SUCH ACTION.  ACCORDINGLY, YOU CANNOT FIND THE DEFENDANTS OR
ANY OF THEM GUILTY OF THE CRIME CHARGED UNLESS YOU ARE SATISFIED BEYOND
A REASONABLE DOUBT THAT THEY CONSPIRED TO ORGANIZE A SOCIETY, GROUP AND
ASSEMBLY OF PERSONS WHO TEACH AND ADVOCATE THE OVERTHROW OR DESTRUCTION
OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE AND TO
ADVOCATE AND TEACH THE DUTY AND NECESSITY OF OVERTHROWING OR DESTROYING
THE GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE, WITH THE
INTENT THAT SUCH TEACHING AND ADVOCACY BE OF A RULE OR PRINCIPLE OF
ACTION AND BY LANGUAGE REASONABLY AND ORDINARILY CALCULATED TO INCITE
PERSONS TO SUCH ACTION, ALL WITH THE INTENT TO CAUSE THE OVERTHROW OR
DESTRUCTION OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE AS SPEEDILY AS CIRCUMSTANCES WOULD PERMIT. 

     .         .      .         .         . 

"IF YOU ARE SATISFIED THAT THE EVIDENCE ESTABLISHES BEYOND A
REASONABLE DOUBT THAT THE DEFENDANTS, OR ANY OF THEM, ARE GUILTY OF A
VIOLATION OF THE STATUTE, AS I HAVE INTERPRETED IT TO YOU, I FIND AS
MATTER OF LAW THAT THERE IS SUFFICIENT DANGER OF A SUBSTANTIVE EVIL
THAT THE CONGRESS HAS A RIGHT TO PREVENT TO JUSTIFY THE APPLICATION OF
THE STATUTE UNDER THE FIRST AMENDMENT OF THE CONSTITUTION. 

"THIS IS MATTER OF LAW ABOUT WHICH YOU HAVE NO CONCERN.  IT IS A
FINDING ON A MATTER OF LAW WHICH I DEEM ESSENTIAL TO SUPPORT MY RULING
THAT THE CASE SHOULD BE SUBMITTED TO YOU TO PASS UPON THE GUILT OR
INNOCENCE OF THE DEFENDANTS.  ...  " 

IT IS THUS CLEAR THAT HE RESERVED THE QUESTION OF THE EXISTENCE OF
THE DANGER FOR HIS OWN DETERMINATION, AND THE QUESTION BECOMES WHETHER
THE ISSUE IS OF SUCH A NATURE THAT IT SHOULD HAVE BEEN SUBMITTED TO THE
JURY. 

THE FIRST PARAGRAPH OF THE QUOTED INSTRUCTIONS CALLS FOR THE JURY TO
FIND THE FACTS ESSENTIAL TO ESTABLISH THE SUBSTANTIVE CRIME, VIOLATION
OF SECS. 2(A)(1) AND 2(A)(3) OF THE SMITH ACT, INVOLVED IN THE
CONSPIRACY CHARGE.  THERE CAN BE NO DOUBT THAT IF THE JURY FOUND THOSE
FACTS AGAINST THE PETITIONERS VIOLATION OF THE ACT WOULD BE
ESTABLISHED.  THE ARGUMENT THAT THE ACTION OF THE TRIAL COURT IS
ERRONEOUS, IN DECLARING AS A MATTER OF LAW THAT SUCH VIOLATION SHOWS
SUFFICIENT DANGER TO JUSTIFY THE PUNISHMENT DESPITE THE FIRST
AMENDMENT, RESTS ON THE THEORY THAT A JURY MUST DECIDE A QUESTION OF
THE APPLICATION OF THE FIRST AMENDMENT.  WE DO NOT AGREE. 

WHEN FACTS ARE FOUND THAT ESTABLISH THE VIOLATION OF A STATUTE, THE
PROTECTION AGAINST CONVICTION AFFORDED BY THE FIRST AMENDMENT IS A
MATTER OF LAW.  THE DOCTRINE THAT THERE MUST BE A CLEAR AND PRESENT
DANGER OF A SUBSTANTIVE EVIL THAT CONGRESS HAS A RIGHT TO PREVENT IS A
JUDICIAL RULE TO BE APPLIED AS A MATTER OF LAW BY THE COURTS.  THE
GUILT IS ESTABLISHED BY PROOF OF FACTS.  WHETHER THE FIRST AMENDMENT
PROTECTS THE ACTIVITY WHICH CONSTITUTES THE VIOLATION OF THE STATUTE
MUST DEPEND UPON A JUDICIAL DETERMINATION OF THE SCOPE OF THE FIRST
AMENDMENT APPLIED TO THE CIRCUMSTANCES OF THE CASE. 

PETITIONERS' RELIANCE UPON JUSTICE BRANDEIS' LANGUAGE IN HIS
CONCURRENCE IN WHITNEY, SUPRA, IS MISPLACED.  IN THAT CASE JUSTICE
BRANDEIS POINTED OUT THAT THE DEFENDANT COULD HAVE MADE THE EXISTENCE
OF THE REQUISITE DANGER THE IMPORTANT ISSUE AT HER TRIAL, BUT THAT SHE
HAD NOT DONE SO. IN DISCUSSING THIS FAILURE, HE STATED THAT THE
DEFENDANT COULD HAVE HAD THE ISSUE DETERMINED BY THE COURT OR THE
JURY.  FN6  NO REALISTIC CONSTRUCTION OF THIS DISJUNCTIVE LANGUAGE
COULD ARRIVE AT THE CONCLUSION THAT HE INTENDED TO STATE THAT THE
QUESTION WAS ONLY DETERMINABLE BY A JURY.  NOR IS THE INCIDENTAL
STATEMENT OF THE MAJORITY IN PIERCE, SUPRA, OF ANY MORE PERSUASIVE
EFFECT.  FN7  THERE THE ISSUE OF THE PROBABLE EFFECT OF THE PUBLICATION
HAD BEEN SUBMITTED TO THE JURY, AND THE MAJORITY WAS APPARENTLY
ADDRESSING ITS REMARKS TO THE CONTENTION OF THE DISSENTERS THAT THE
JURY COULD NOT REASONABLY HAVE RETURNED A VERDICT OF GUILTY ON THE
EVIDENCE.  FN8  INDEED, IN THE VERY CASE IN WHICH THE PHRASE WAS BORN,
SCHENCK, THIS COURT ITSELF EXAMINED THE RECORD TO FIND WHETHER THE
REQUISITE DANGER APPEARED, AND THE ISSUE WAS NOT SUBMITTED TO A JURY. 
AND IN EVERY LATER CASE IN WHICH THE COURT HAS MEASURED THE VALIDITY OF
A STATUTE BY THE "CLEAR AND PRESENT DANGER" TEST, THAT DETERMINATION
HAS BEEN BY THE COURT, THE QUESTION OF THE DANGER NOT BEING SUBMITTED
TO THE JURY. 

THE QUESTION IN THIS CASE IS WHETHER THE STATUTE WHICH THE
LEGISLATURE HAS ENACTED MAY BE CONSTITUTIONALLY APPLIED.  IN OTHER
WORDS, THE COURT MUST EXAMINE JUDICIALLY THE APPLICATION OF THE STATUTE
TO THE PARTICULAR SITUATION, TO ASCERTAIN IF THE CONSTITUTION PROHIBITS
THE CONVICTION.  WE HOLD THAT THE STATUTE MAY BE APPLIED WHERE THERE IS
A "CLEAR AND PRESENT DANGER" OF THE SUBSTANTIVE EVIL WHICH THE
LEGISLATURE HAD THE RIGHT TO PREVENT.  BEARING, AS IT DOES, THE MARKS
OF A "QUESTION OF LAW," THE ISSUE IS PROPERLY ONE FOR THE JUDGE TO
DECIDE. 

                         V. 

THERE REMAINS TO BE DISCUSSED THE QUESTION OF VAGUENESS - WHETHER THE
STATUTE AS WE HAVE INTERPRETED IT IS TOO VAGUE, NOT SUFFICIENTLY
ADVISING THOSE WHO WOULD SPEAK OF THE LIMITATIONS UPON THEIR ACTIVITY. 
IT IS URGED THAT SUCH VAGUENESS CONTRAVENES THE FIRST AND FIFTH
AMENDMENTS.  THIS ARGUMENT IS PARTICULARLY NONPERSUASIVE WHEN PRESENTED
BY PETITIONERS, WHO, THE JURY FOUND, INTENDED TO OVERTHROW THE
GOVERNMENT AS SPEEDILY AS CIRCUMSTANCES WOULD PERMIT.  SEE ABRAMS V.
UNITED STATES, 250 U.S. 616, 627-629(1919)(DISSENTING OPINION); WHITNEY
V. CALIFORNIA, 274 U.S. 357, 373(1927)(CONCURRING OPINION); TAYLOR V.
MISSISSIPPI, 319 U.S. 583, 589(1943).  A CLAIM OF GUILELESSNESS ILL
BECOMES THOSE WITH EVIL INTENT.  WILLIAMS V. UNITED STATES, 341 U.S.
97, 101-102(1951); JORDAN V. DE GEORGE, 341 U.S. 223, 230-232(1951);
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. AT 413; SCREWS V.
UNITED STATES, 325 U.S. 91, 101(1945). 

WE AGREE THAT THE STANDARD AS DEFINED IS NOT A NEAT, MATHEMATICAL
FORMULARY.  LIKE ALL VERBALIZATIONS IT IS SUBJECT TO CRITICISM ON THE
SCORE OF INDEFINITENESS.  BUT PETITIONERS THEMSELVES CONTEND THAT THE
VERBALIZATION "CLEAR AND PRESENT DANGER" IS THE PROPER STANDARD.  WE
SEE NO DIFFERENCE, FROM THE STANDPOINT OF VAGUENESS, WHETHER THE
STANDARD OF "CLEAR AND PRESENT DANGER" IS ONE CONTAINED IN HAEC VERBA
WITHIN THE STATUTE, OR WHETHER IT IS THE JUDICIAL MEASURE OF
CONSTITUTIONAL APPLICABILITY.  WE HAVE SHOWN THE INDETERMINATE STANDARD
THE PHRASE NECESSARILY CONNOTES.  WE DO NOT THINK WE HAVE RENDERED THAT
STANDARD ANY MORE INDEFINITE BY OUR ATTEMPT TO SUM UP THE FACTORS WHICH
ARE INCLUDED WITHIN ITS SCOPE.  WE THINK IT WELL SERVES TO INDICATE TO
THOSE WHO WOULD ADVOCATE CONSTITUTIONALLY PROHIBITED CONDUCT THAT THERE
IS A LINE BEYOND WHICH THEY MAY NOT GO - A LINE WHICH THEY, IN FULL
KNOWLEDGE OF WHAT THEY INTEND AND THE CIRCUMSTANCES IN WHICH THEIR
ACTIVITY TAKES PLACE, WILL WELL APPRECIATE AND UNDERSTAND.  WILLIAMS,
SUPRA, AT 101-102; JORDAN, SUPRA, AT 230-232; UNITED STATES V.
PETRILLO, 332 U.S. 1, 7(1948); UNITED STATES V. WURZBACH, 280 U.S. 396,
399(1930); NASH V. UNITED STATES, 229 U.S. 373, 376-377(1913).  WHERE
THERE IS DOUBT AS TO THE INTENT OF THE DEFENDANTS, THE NATURE OF THEIR
ACTIVITIES, OR THEIR POWER TO BRING ABOUT THE EVIL, THIS COURT WILL
REVIEW THE CONVICTIONS WITH THE SCRUPULOUS CARE DEMANDED BY OUR
CONSTITUTION.  BUT WE ARE NOT CONVINCED THAT BECAUSE THERE MAY BE
BORDERLINE CASES AT SOME TIME IN THE FUTURE, THESE CONVICTIONS SHOULD
BE REVERSED BECAUSE OF THE ARGUMENT THAT THESE PETITIONERS COULD NOT
KNOW THAT THEIR ACTIVITIES WERE CONSTITUTIONALLY PROSCRIBED BY THE
STATUTE. 

WE HAVE NOT DISCUSSED MANY OF THE QUESTIONS WHICH COULD BE EXTRACTED
FROM THE RECORD, ALTHOUGH THEY WERE TREATED IN DETAIL BY THE COURT
BELOW.  OUR LIMITED GRANT OF THE WRIT OF CERTIORARI HAS WITHDRAWN FROM
OUR CONSIDERATION AT THIS DATE THOSE QUESTIONS, WHICH INCLUDE, INTER
ALIA, SUFFICIENCY OF THE EVIDENCE, COMPOSITION OF JURY, AND CONDUCT OF
THE TRIAL. 

WE HOLD THAT SECS. 2(A)(1), 2(A)(3) AND 3 OF THE SMITH ACT DO NOT
INHERENTLY, OR AS CONSTRUED OR APPLIED IN THE INSTANT CASE, VIOLATE THE
FIRST AMENDMENT AND OTHER PROVISIONS OF THE BILL OF RIGHTS, OR THE
FIRST AND FIFTH AMENDMENTS BECAUSE OF INDEFINITENESS.  PETITIONERS
INTENDED TO OVERTHROW THE GOVERNMENT OF THE UNITED STATES AS SPEEDILY
AS THE CIRCUMSTANCES WOULD PERMIT.  THEIR CONSPIRACY TO ORGANIZE THE
COMMUNIST PARTY AND TO TEACH AND ADVOCATE THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE CREATED A "CLEAR
AND PRESENT DANGER" OF AN ATTEMPT TO OVERTHROW THE GOVERNMENT BY FORCE
AND VIOLENCE.  THEY WERE PROPERLY AND CONSTITUTIONALLY CONVICTED FOR
VIOLATION OF THE SMITH ACT.  THE JUDGMENTS OF CONVICTION ARE AFFIRMED. 

FN1  FOLLOWING THE DISSOLUTION OF THE COMMUNIST INTERNATIONAL IN
1943, THE COMMUNIST PARTY OF THE UNITED STATES DISSOLVED AND WAS
RECONSTITUTED AS THE COMMUNIST POLITICAL ASSOCIATION.  THE PROGRAM OF
THIS ASSOCIATION WAS ONE OF COOPERATION BETWEEN LABOR AND MANAGEMENT,
AND, IN GENERAL, ONE DESIGNED TO ACHIEVE NATIONAL UNITY AND PEACE AND
PROSPERITY IN THE POST-WAR PERIOD. 

FN2  WE HAVE TREATED THIS POINT BECAUSE OF THE DISCUSSION ACCORDED IT
BY THE COURT OF APPEALS AND ITS IMPORTANCE TO THE ADMINISTRATION OF
THIS STATUTE, COMPARE JOHNSON V. UNITED STATES, 318 U.S. 189(1943),
ALTHOUGH PETITIONERS THEMSELVES REQUESTED A CHARGE SIMILAR TO THE ONE
GIVEN, AND UNDER RULE 30 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
WOULD APPEAR TO BE BARRED FROM RAISING THIS POINT ON APPEAL.  CF. BOYD
V. UNITED STATES, 271 U.S. 104(1926). 

FN3  TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402(1918); FOX
V. WASHINGTON, 236 U.S. 273(1915); DAVIS V. MASSACHUSETTS, 167 U.S.
43(1897); SEE GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418,
439(1911); ROBERTSON V. BALDWIN, 165 U.S. 275, 281(1897). 

FN4  CF. GILBERT V. MINNESOTA, 254 U.S. 325(1920). 

FN5  CONTEMPT OF COURT:  CRAIG V. HARNEY, 331 U.S. 367, 373(1947);
PENNEKAMP V. FLORIDA, 328 U.S. 331, 333-336(1946); BRIDGES V.
CALIFORNIA, 314 U.S. 252, 260-263(1941). 

VALIDITY OF STATE STATUTE:  THOMAS V. COLLINS, 323 U.S. 516,
530(1945); TAYLOR V. MISSISSIPPI, 319 U.S. 583, 589-590(1943);
THORNHILL V. ALABAMA, 310 U.S. 88, 104-106(1940). 

VALIDITY OF LOCAL ORDINANCE OR REGULATION:  WEST VIRGINIA BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624, 639(1943); CARLSON V. CALIFORNIA,
310 U.S. 106, 113(1940).    COMMON LAW OFFENSE:  CANTWELL V.
CONNECTICUT, 310 U.S. 296, 308, 311(1940). 

FN6  "WHETHER IN 1919, WHEN MISS WHITNEY DID THE THINGS COMPLAINED
OF, THERE WAS IN CALIFORNIA SUCH CLEAR AND PRESENT DANGER OF SERIOUS
EVIL, MIGHT HAVE BEEN MADE THE IMPORTANT ISSUE IN THE CASE.  SHE MIGHT
HAVE REQUIRED THAT THE ISSUE BE DETERMINED EITHER BY THE COURT OR THE
JURY.  SHE CLAIMED BELOW THAT THE STATUTE AS APPLIED TO HER VIOLATED
THE FEDERAL CONSTITUTION; BUT SHE DID NOT CLAIM THAT IT WAS VOID
BECAUSE THERE WAS NO CLEAR AND PRESENT DANGER OF SERIOUS EVIL, NOR DID
SHE REQUEST THAT THE EXISTENCE OF THESE CONDITIONS OF A VALID MEASURE
THUS RESTRICTING THE RIGHTS OF FREE SPEECH AND ASSEMBLY BE PASSED UPON
BY THE COURT OR A JURY.  ON THE OTHER HAND, THERE WAS EVIDENCE ON WHICH
THE COURT OR JURY MIGHT HAVE FOUND THAT SUCH DANGER EXISTED."  274 U.S.
AT 379. 

FN7  "WHETHER THE PRINTED WORDS WOULD IN FACT PRODUCE AS A PROXIMATE
RESULT A MATERIAL INTERFERENCE WITH THE RECRUITING OR ENLISTMENT
SERVICE, OR THE OPERATION OR SUCCESS OF THE FORCES OF THE UNITED
STATES, WAS A QUESTION FOR THE JURY TO DECIDE IN VIEW OF ALL THE
CIRCUMSTANCES OF THE TIME AND CONSIDERING THE PLACE AND MANNER OF
DISTRIBUTION."  252 U.S. 239, 250(1920). 

FN8  A SIMILARLY WORDED EXPRESSION IS FOUND IN THAT PART OF THE
MAJORITY OPINION SUSTAINING THE OVERRULING OF THE DEFENDANTS' GENERAL
DEMURRER TO THE INDICTMENT.  252 U.S. AT 244.  SINCE THE DEFENDANTS HAD
NOT RAISED THE ISSUE OF "CLEAR AND PRESENT DANGER" AT THE TRIAL, IT IS
CLEAR THAT THE COURT WAS NOT FACED WITH THE QUESTION WHETHER THE TRIAL
JUDGE ERRED IN NOT DETERMINING, AS A CONCLUSIVE MATTER, THE EXISTENCE
OR NONEXISTENCE OF A "CLEAR AND PRESENT DANGER."  THE ONLY ISSUE TO
WHICH THE REMARKS WERE ADDRESSED WAS WHETHER THE INDICTMENT
SUFFICIENTLY ALLEGED THE VIOLATION. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING IN AFFIRMANCE OF THE JUDGMENT. 

THE DEFENDANTS WERE CONVICTED UNDER SEC. 3 OF THE SMITH ACT FOR
CONSPIRING TO VIOLATE SEC. 2 OF THAT ACT, WHICH MAKES IT UNLAWFUL "TO
ORGANIZE OR HELP TO ORGANIZE ANY SOCIETY, GROUP, OR ASSEMBLY OF PERSONS
WHO TEACH, ADVOCATE, OR ENCOURAGE THE OVERTHROW OR DESTRUCTION OF ANY
GOVERNMENT IN THE UNITED STATES BY FORCE OR VIOLENCE."  ACT OF JUNE 28,
1940, SEC. 2(A)(3), 54 STAT. 670, 671, 18 U.S.C. SEC. 10, NOW 18 U.S.C.
SEC. 2385.  THE SUBSTANCE OF THE INDICTMENT IS THAT THE DEFENDANTS
BETWEEN APRIL 1, 1945, AND JULY 20, 1948, AGREED TO BRING ABOUT THE
DISSOLUTION OF A BODY KNOWN AS THE COMMUNIST POLITICAL ASSOCIATION AND
TO ORGANIZE IN ITS PLACE THE COMMUNIST PARTY OF THE UNITED STATES; THAT
THE AIM OF THE NEW PARTY WAS "THE OVERTHROW AND DESTRUCTION OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE"; THAT THE
DEFENDANTS WERE TO ASSUME LEADERSHIP OF THE PARTY AND TO RECRUIT
MEMBERS FOR IT AND THAT THE PARTY WAS TO PUBLISH BOOKS AND CONDUCT
CLASSES, TEACHING THE DUTY AND THE NECESSITY OF FORCEFUL OVERTHROW. 
THE JURY FOUND ALL THE DEFENDANTS GUILTY.  WITH ONE EXCEPTION, EACH WAS
SENTENCED TO IMPRISONMENT FOR FIVE YEARS AND TO A FINE OF $10,000.  THE
CONVICTIONS WERE AFFIRMED BY THE COURT OF APPEALS FOR THE SECOND
CIRCUIT.  183 F.2D 201.  WE WERE ASKED TO REVIEW THIS AFFIRMANCE ON ALL
THE GROUNDS CONSIDERED BY THE COURT OF APPEALS.  THESE INCLUDED NOT
ONLY THE SCOPE OF THE FREEDOM OF SPEECH GUARANTEED BY THE CONSTITUTION,
BUT ALSO SERIOUS QUESTIONS REGARDING THE LEGAL COMPOSITION OF THE JURY
AND THE FAIR CONDUCT OF THE TRIAL.  WE GRANTED CERTIORARI, STRICTLY
LIMITED, HOWEVER, TO THE CONTENTION THAT SECS. 2 AND 3 OF THE SMITH
ACT, INHERENTLY AND AS APPLIED, VIOLATED THE FIRST AND FIFTH
AMENDMENTS.  340 U.S. 863.  NO ATTEMPT WAS MADE TO SEEK AN ENLARGEMENT
OF THE RANGE OF QUESTIONS THUS DEFINED, AND THESE ALONE ARE NOW OPEN
FOR OUR CONSIDERATION.  ALL OTHERS ARE FORECLOSED BY THE DECISION OF
THE COURT OF APPEALS. 

AS THUS LIMITED, THE CONTROVERSY IN THIS COURT TURNS ESSENTIALLY ON
THE INSTRUCTIONS GIVEN TO THE JURY FOR DETERMINING GUILT OR INNOCENCE. 
9 F.R.D. 367.  THE FIRST QUESTION IS WHETHER - WHOLLY APART FROM
CONSTITUTIONAL MATTERS - THE JUDGE'S CHARGE PROPERLY EXPLAINED TO THE
JURY WHAT IT IS THAT THE SMITH ACT CONDEMNS.  THE CONCLUSION THAT HE
DID SO REQUIRES NO LABORED ARGUMENT.  ON THE BASIS OF THE INSTRUCTIONS,
THE JURY FOUND, FOR THE PURPOSE OF OUR REVIEW, THAT THE ADVOCACY WHICH
THE DEFENDANTS CONSPIRED TO PROMOTE WAS TO BE A RULE OF ACTION, BY
LANGUAGE REASONABLY CALCULATED TO INCITE PERSONS TO SUCH ACTION, AND
WAS INTENDED TO CAUSE THE OVERTHROW OF THE GOVERNMENT BY FORCE AND
VIOLENCE AS SOON AS CIRCUMSTANCES PERMIT.  THIS BRINGS US TO THE
ULTIMATE ISSUE.  IN ENACTING A STATUTE WHICH MAKES IT A CRIME FOR THE
DEFENDANTS TO CONSPIRE TO DO WHAT THEY HAVE BEEN FOUND TO HAVE
CONSPIRED TO DO, DID CONGRESS EXCEED ITS CONSTITUTIONAL POWER? 

FEW QUESTIONS OF COMPARABLE IMPORT HAVE COME BEFORE THIS COURT IN
RECENT YEARS.  THE APPELLANTS MAINTAIN THAT THEY HAVE A RIGHT TO
ADVOCATE A POLITICAL THEORY, SO LONG, AT LEAST, AS THEIR ADVOCACY DOES
NOT CREATE AN IMMEDIATE DANGER OF OBVIOUS MAGNITUDE TO THE VERY
EXISTENCE OF OUR PRESENT SCHEME OF SOCIETY.  ON THE OTHER HAND, THE
GOVERNMENT ASSERTS THE RIGHT TO SAFEGUARD THE SECURITY OF THE NATION BY
SUCH A MEASURE AS THE SMITH ACT.  OUR JUDGMENT IS THUS SOLICITED ON A
CONFLICT OF INTERESTS OF THE UTMOST CONCERN TO THE WELL-BEING OF THE
COUNTRY.  THIS CONFLICT OF INTERESTS CANNOT BE RESOLVED BY A DOGMATIC
PREFERENCE FOR ONE OR THE OTHER, NOR BY A SONOROUS FORMULA WHICH IS IN
FACT ONLY A EUPHEMISTIC DISGUISE FOR AN UNRESOLVED CONFLICT.  IF
ADJUDICATION IS TO BE A RATIONAL PROCESS, WE CANNOT ESCAPE A CANDID
EXAMINATION OF THE CONFLICTING CLAIMS WITH FULL RECOGNITION THAT BOTH
ARE SUPPORTED BY WEIGHTY TITLE-DEEDS. 

                                  I. 

THERE COME OCCASIONS IN LAW, AS ELSEWHERE, WHEN THE FAMILIAR NEEDS TO
BE RECALLED.  OUR WHOLE HISTORY PROVES EVEN MORE DECISIVELY THAN THE
COURSE OF DECISIONS IN THIS COURT THAT THE UNITED STATES HAS THE POWERS
INSEPARABLE FROM A SOVEREIGN NATION.  "AMERICA HAS CHOSEN TO BE, IN
MANY RESPECTS, AND TO MANY PURPOSES, A NATION; AND FOR ALL THESE
PURPOSES, HER GOVERNMENT IS COMPLETE; TO ALL THESE OBJECTS, IT IS
COMPETENT."  CHIEF JUSTICE MARSHALL IN COHENS V. VIRGINIA, 6 WHEAT. 
264, 414.  THE RIGHT OF A GOVERNMENT TO MAINTAIN ITS EXISTENCE - SELF
PRESERVATION - IS THE MOST PERVASIVE ASPECT OF SOVEREIGNTY.  "SECURITY
AGAINST FOREIGN DANGER," WROTE MADISON, "IS ONE OF THE PRIMITIVE
OBJECTS OF CIVIL SOCIETY."  THE FEDERALIST, NO. 41.  THE CONSTITUTIONAL
POWER TO ACT UPON THIS BASIC PRINCIPLE HAS BEEN RECOGNIZED BY THIS
COURT AT DIFFERENT PERIODS AND UNDER DIVERSE CIRCUMSTANCES.  "TO
PRESERVE ITS INDEPENDENCE, AND GIVE SECURITY AGAINST FOREIGN AGGRESSION
AND ENCROACHMENT, IS THE HIGHEST DUTY OF EVERY NATION, AND TO ATTAIN
THESE ENDS NEARLY ALL OTHER CONSIDERATIONS ARE TO BE SUBORDINATED.  IT
MATTERS NOT IN WHAT FORM SUCH AGGRESSION AND ENCROACHMENT COME  ...
THE GOVERNMENT, POSSESSING THE POWERS WHICH ARE TO BE EXERCISED FOR
PROTECTION AND SECURITY, IS CLOTHED WITH AUTHORITY TO DETERMINE THE
OCCASION ON WHICH THE POWERS SHALL BE CALLED FORTH  ...  "  CHINESE
EXCLUSION CASE, 130 U.S. 581, 606.  SEE ALSO DE LIMA V. BIDWELL, 182
U.S. 1; MACKENZIE V. HARE, 239 U.S. 299; MISSOURI V. HOLLAND, 252 U.S.
416; UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304.  THE MOST
TRAGIC EXPERIENCE IN OUR HISTORY IS A POIGNANT REMINDER THAT THE
NATION'S CONTINUED EXISTENCE MAY BE THREATENED FROM WITHIN.  TO PROTECT
ITSELF FROM SUCH THREATS, THE FEDERAL GOVERNMENT "IS INVESTED WITH ALL
THOSE INHERENT AND IMPLIED POWERS WHICH, AT THE TIME OF ADOPTING THE
CONSTITUTION, WERE GENERALLY CONSIDERED TO BELONG TO EVERY GOVERNMENT
AS SUCH, AND AS BEING ESSENTIAL TO THE EXERCISE OF ITS FUNCTIONS."  MR.
JUSTICE BRADLEY, CONCURRING IN LEGAL TENDER CASES, 12 WALL.  457, 554,
556; AND SEE IN RE DEBS, 158 U.S. 564, 582. 

BUT EVEN THE ALL-EMBRACING POWER AND DUTY OF SELFPRESERVATION ARE NOT
ABSOLUTE.  LIKE THE WAR POWER, WHICH IS INDEED AN ASPECT OF THE POWER
OF SELF-PRESERVATION, IT IS SUBJECT TO APPLICABLE CONSTITUTIONAL
LIMITATIONS.  SEE HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146,
156.  OUR CONSTITUTION HAS NO PROVISION LIFTING RESTRICTIONS UPON
GOVERNMENTAL AUTHORITY DURING PERIODS OF EMERGENCY, ALTHOUGH THE SCOPE
OF A RESTRICTION MAY DEPEND ON THE CIRCUMSTANCES IN WHICH IT IS
INVOKED. 

THE FIRST AMENDMENT IS SUCH A RESTRICTION.  IT EXACTS OBEDIENCE EVEN
DURING PERIODS OF WAR; IT IS APPLICABLE WHEN WAR CLOUDS ARE NOT
FIGMENTS OF THE IMAGINATION NO LESS THAN WHEN THEY ARE.  THE FIRST
AMENDMENT CATEGORICALLY DEMANDS THAT "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."  THE RIGHT OF A MAN TO THINK
WHAT HE PLEASES, TO WRITE WHAT HE THINKS, AND TO HAVE HIS THOUGHTS MADE
AVAILABLE FOR OTHERS TO HEAR OR READ HAS AN ENGAGING RING OF
UNIVERSALITY.  THE SMITH ACT AND THIS CONVICTION UNDER IT NO DOUBT
RESTRICT THE EXERCISE OF FREE SPEECH AND ASSEMBLY.  DOES THAT, WITHOUT
MORE, DISPOSE OF THE MATTER? 

JUST AS THERE ARE THOSE WHO REGARD AS INVULNERABLE EVERY MEASURE FOR
WHICH THE CLAIM OF NATIONAL SURVIVAL IS INVOKED, THERE ARE THOSE WHO
FIND IN THE CONSTITUTION A WHOLLY UNFETTERED RIGHT OF EXPRESSION.  SUCH
LITERALNESS TREATS THE WORDS OF THE CONSTITUTION AS THOUGH THEY WERE
FOUND ON A PIECE OF OUTWORN PARCHMENT INSTEAD OF BEING WORDS THAT HAVE
CALLED INTO BEING A NATION WITH A PAST TO BE PRESERVED FOR THE FUTURE. 
THE SOIL IN WHICH THE BILL OF RIGHTS GREW WAS NOT A SOIL OF ARID
PEDANTRY.  THE HISTORIC ANTECEDENTS OF THE FIRST AMENDMENT PRECLUDE THE
NOTION THAT ITS PURPOSE WAS TO GIVE UNQUALIFIED IMMUNITY TO EVERY
EXPRESSION THAT TOUCHED ON MATTERS WITHIN THE RANGE OF POLITICAL
INTEREST.  THE MASSACHUSETTS CONSTITUTION OF 1780 GUARANTEED FREE
SPEECH; YET THERE ARE RECORDS OF AT LEAST THREE CONVICTIONS FOR
POLITICAL LIBELS OBTAINED BETWEEN 1799 AND 1803.  FN1 THE PENNSYLVANIA
CONSTITUTION OF 1790 AND THE DELAWARE CONSTITUTION OF 1792 EXPRESSLY
IMPOSED LIABILITY FOR ABUSE OF THE RIGHT OF FREE SPEECH.  FN2
MADISON'S OWN STATE PUT ON ITS BOOKS IN 1792 A STATUTE CONFINING THE
ABUSIVE EXERCISE OF THE RIGHT OF UTTERANCE.  FN3  AND IT DESERVES TO BE
NOTED THAT IN WRITING TO JOHN ADAMS'S WIFE, JEFFERSON DID NOT REST HIS
CONDEMNATION OF THE SEDITION ACT OF 1798 ON HIS BELIEF IN UNRESTRAINED
UTTERANCE AS TO POLITICAL MATTER.  THE FIRST AMENDMENT, HE ARGUED,
REFLECTED A LIMITATION UPON FEDERAL POWER, LEAVING THE RIGHT TO ENFORCE
RESTRICTIONS ON SPEECH TO THE STATES.  FN4 

THE LANGUAGE OF THE FIRST AMENDMENT IS TO BE READ NOT AS BARREN WORDS
FOUND IN A DICTIONARY BUT AS SYMBOLS OF HISTORIC EXPERIENCE ILLUMINED
BY THE PRESUPPOSITIONS OF THOSE WHO EMPLOYED THEM.  NOT WHAT WORDS DID
MADISON AND HAMILTON USE, BUT WHAT WAS IT IN THEIR MINDS WHICH THEY
CONVEYED?  FREE SPEECH IS SUBJECT TO PROHIBITION OF THOSE ABUSES OF
EXPRESSION WHICH A CIVILIZED SOCIETY MAY FORBID.  AS IN THE CASE OF
EVERY OTHER PROVISION OF THE CONSTITUTION THAT IS NOT CRYSTALLIZED BY
THE NATURE OF ITS TECHNICAL CONCEPTS, THE FACT THAT THE FIRST AMENDMENT
IS NOT SELF-DEFINING AND SELF-ENFORCING NEITHER IMPAIRS ITS USEFULNESS
NOR COMPELS ITS PARALYSIS AS A LIVING INSTRUMENT. 

"THE LAW IS PERFECTLY WELL SETTLED," THIS COURT SAID OVER FIFTY YEARS
AGO, "THAT THE FIRST TEN AMENDMENTS TO THE CONSTITUTION, COMMONLY KNOWN
AS THE BILL OF RIGHTS, WERE NOT INTENDED TO LAY DOWN ANY NOVEL
PRINCIPLES OF GOVERNMENT, BUT SIMPLY TO EMBODY CERTAIN GUARANTIES AND
IMMUNITIES WHICH WE HAD INHERITED FROM OUR ENGLISH ANCESTORS, AND WHICH
HAD FROM TIME IMMEMORIAL BEEN SUBJECT TO CERTAIN WELL-RECOGNIZED
EXCEPTIONS ARISING FROM THE NECESSITIES OF THE CASE.  IN INCORPORATING
THESE PRINCIPLES INTO THE FUNDAMENTAL LAW THERE WAS NO INTENTION OF
DISREGARDING THE EXCEPTIONS, WHICH CONTINUED TO BE RECOGNIZED AS IF
THEY HAD BEEN FORMALLY EXPRESSED."  ROBERTSON V. BALDWIN, 165 U.S. 275,
281.  THAT THIS REPRESENTS THE AUTHENTIC VIEW OF THE BILL OF RIGHTS AND
THE SPIRIT IN WHICH IT MUST BE CONSTRUED HAS BEEN RECOGNIZED AGAIN AND
AGAIN IN CASES THAT HAVE COME HERE WITHIN THE LAST FIFTY YEARS.  SEE,
E.G., GOMPERS V. UNITED STATES, 233 U.S. 604, 610.  ABSOLUTE RULES
WOULD INEVITABLY LEAD TO ABSOLUTE EXCEPTIONS, AND SUCH EXCEPTIONS WOULD
EVENTUALLY CORRODE THE RULES.  FN5  THE DEMANDS OF FREE SPEECH IN A
DEMOCRATIC SOCIETY AS WELL AS THE INTEREST IN NATIONAL SECURITY ARE
BETTER SERVED BY CANDID AND INFORMED WEIGHING OF THE COMPETING
INTERESTS, WITHIN THE CONFINES OF THE JUDICIAL PROCESS, THAN BY
ANNOUNCING DOGMAS TOO INFLEXIBLE FOR THE NON-EUCLIDIAN PROBLEMS TO BE
SOLVED. 

BUT HOW ARE COMPETING INTERESTS TO BE ASSESSED?  SINCE THEY ARE NOT
SUBJECT TO QUANTITATIVE ASCERTAINMENT, THE ISSUE NECESSARILY RESOLVES
ITSELF INTO ASKING, WHO IS TO MAKE THE ADJUSTMENT?  - WHO IS TO BALANCE
THE RELEVANT FACTORS AND ASCERTAIN WHICH INTEREST IS IN THE
CIRCUMSTANCES TO PREVAIL?  FULL RESPONSIBILITY FOR THE CHOICE CANNOT BE
GIVEN TO THE COURTS.  COURTS ARE NOT REPRESENTATIVE BODIES.  THEY ARE
NOT DESIGNED TO BE A GOOD REFLEX OF A DEMOCRATIC SOCIETY.  THEIR
JUDGMENT IS BEST INFORMED, AND THEREFORE MOST DEPENDABLE, WITHIN NARROW
LIMITS.  THEIR ESSENTIAL QUALITY IS DETACHMENT, FOUNDED ON
INDEPENDENCE.  HISTORY TEACHES THAT THE INDEPENDENCE OF THE JUDICIARY
IS JEOPARDIZED WHEN COURTS BECOME EMBROILED IN THE PASSIONS OF THE DAY
AND ASSUME PRIMARY RESPONSIBILITY IN CHOOSING BETWEEN COMPETING
POLITICAL, ECONOMIC AND SOCIAL PRESSURES. 

PRIMARY RESPONSIBILITY FOR ADJUSTING THE INTERESTS WHICH COMPETE IN
THE SITUATION BEFORE US OF NECESSITY BELONGS TO THE CONGRESS.  THE
NATURE OF THE POWER TO BE EXERCISED BY THIS COURT HAS BEEN DELINEATED
IN DECISIONS NOT CHARGED WITH THE EMOTIONAL APPEAL OF SITUATIONS SUCH
AS THAT NOW BEFORE US.  WE ARE TO SET ASIDE THE JUDGMENT OF THOSE WHOSE
DUTY IT IS TO LEGISLATE ONLY IF THERE IS NO REASONABLE BASIS FOR IT.
SINKING-FUND CASES, 99 U.S. 700, 718; MUGLER V. KANSAS, 123 U.S. 623,
660-661; UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144.  WE ARE
TO DETERMINE WHETHER A STATUTE IS SUFFICIENTLY DEFINITE TO MEET THE
CONSTITUTIONAL REQUIREMENTS OF DUE PROCESS, AND WHETHER IT RESPECTS THE
SAFEGUARDS AGAINST UNDUE CONCENTRATION OF AUTHORITY SECURED BY
SEPARATION OF POWER.  UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81. 
WE MUST ASSURE FAIRNESS OF PROCEDURE, ALLOWING FULL SCOPE TO
GOVERNMENTAL DISCRETION BUT MINDFUL OF ITS IMPACT ON INDIVIDUALS IN THE
CONTEXT OF THE PROBLEM INVOLVED.  JOINT ANTI-FASCIST REFUGEE COMM. V.
MCGRATH, 341 U.S. 123.  AND, OF COURSE, THE PROCEEDINGS IN A PARTICULAR
CASE BEFORE US MUST HAVE THE WARRANT OF SUBSTANTIAL PROOF.  BEYOND
THESE POWERS WE MUST NOT GO; WE MUST SCRUPULOUSLY OBSERVE THE NARROW
LIMITS OF JUDICIAL AUTHORITY EVEN THOUGH SELF-RESTRAINT IS ALONE SET
OVER US.  ABOVE ALL WE MUST REMEMBER THAT THIS COURT'S POWER OF
JUDICIAL REVIEW IS NOT "AN EXERCISE OF THE POWERS OF A SUPER
LEGISLATURE."  MR. JUSTICE BRANDEIS AND MR. JUSTICE HOLMES, DISSENTING
IN BURNS BAKING CO. V. BRYAN, 264 U.S. 504, 534. 

A GENERATION AGO THIS DISTRIBUTION OF RESPONSIBILITY WOULD NOT HAVE
BEEN QUESTIONED.  SEE FOX V. WASHINGTON, 236 U.S. 273; MEYER V.
NEBRASKA, 262 U.S. 390; BARTELS V. IOWA, 262 U.S. 404; CF. NEW YORK EX
REL. BRYANT V. ZIMMERMAN, 278 U.S. 63.  BUT IN RECENT DECISIONS WE HAVE
MADE EXPLICIT WHAT HAS LONG BEEN IMPLICITLY RECOGNIZED.  IN REVIEWING
STATUTES WHICH RESTRICT FREEDOMS PROTECTED BY THE FIRST AMENDMENT, WE
HAVE EMPHASIZED THE CLOSE RELATION WHICH THOSE FREEDOMS BEAR TO
MAINTENANCE OF A FREE SOCIETY.  SEE KOVACS V. COOPER, 336 U.S. 77, 89,
95(CONCURRING).  SOME MEMBERS OF THE COURT - AND AT TIMES A MAJORITY -
HAVE DONE MORE.  THEY HAVE SUGGESTED THAT OUR FUNCTION IN REVIEWING
STATUTES RESTRICTING FREEDOM OF EXPRESSION DIFFERS SHARPLY FROM OUR
NORMAL DUTY IN SITTING IN JUDGMENT ON LEGISLATION.  IT HAS BEEN SAID
THAT SUCH STATUTES "MUST BE JUSTIFIED BY CLEAR PUBLIC INTEREST,
THREATENED NOT DOUBTFULLY OR REMOTELY, BUT BY CLEAR AND PRESENT
DANGER.  THE RATIONAL CONNECTION BETWEEN THE REMEDY PROVIDED AND THE
EVIL TO BE CURBED, WHICH IN OTHER CONTEXTS MIGHT SUPPORT LEGISLATION
AGAINST ATTACK ON DUE PROCESS GROUNDS, WILL NOT SUFFICE."  THOMAS V.
COLLINS, 323 U.S. 516, 530.  IT HAS BEEN SUGGESTED, WITH THE CASUALNESS
OF A FOOTNOTE, THAT SUCH LEGISLATION IS NOT PRESUMPTIVELY VALID, SEE
UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 152, N. 4, AND IT
HAS BEEN WEIGHTILY REITERATED THAT FREEDOM OF SPEECH HAS A "PREFERRED
POSITION" AMONG CONSTITUTIONAL SAFEGUARDS.  KOVACS V. COOPER, 336 U.S.
77, 88. 

THE PRECISE MEANING INTENDED TO BE CONVEYED BY THESE PHRASES NEED NOT
NOW BE PURSUED.  IT IS ENOUGH TO NOTE THAT THEY HAVE RECURRED IN THE
COURT'S OPINIONS, AND THEIR CUMULATIVE FORCE HAS, NOT WITHOUT
JUSTIFICATION, ENGENDERED BELIEF THAT THERE IS A CONSTITUTIONAL
PRINCIPLE, EXPRESSED BY THOSE ATTRACTIVE BUT IMPRECISE WORDS,
PROHIBITING RESTRICTION UPON UTTERANCE UNLESS IT CREATES A SITUATION OF
"IMMINENT" PERIL AGAINST WHICH LEGISLATION MAY GUARD.  FN6  IT IS ON
THIS BODY OF THE COURT'S PRONOUNCEMENTS THAT THE DEFENDANTS' ARGUMENT
HERE IS BASED. 

IN ALL FAIRNESS, THE ARGUMENT CANNOT BE MET BY REINTERPRETING THE
COURT'S FREQUENT USE OF "CLEAR" AND "PRESENT" TO MEAN AN ENTERTAINABLE
"PROBABILITY."  IN GIVING THIS MEANING TO THE PHRASE "CLEAR AND PRESENT
DANGER," THE COURT OF APPEALS WAS FASTIDIOUSLY CONFINING THE RHETORIC
OF OPINIONS TO THE EXACT SCOPE OF WHAT WAS DECIDED BY THEM.  WE HAVE
GREATER RESPONSIBILITY FOR HAVING GIVEN CONSTITUTIONAL SUPPORT, OVER
REPEATED PROTESTS, TO UNCRITICAL LIBERTARIAN GENERALITIES. 

NOR IS THE ARGUMENT OF THE DEFENDANTS ADEQUATELY MET BY CITING
ISOLATED CASES.  ADJUSTMENT OF CLASH OF INTERESTS WHICH ARE AT ONCE
SUBTLE AND FUNDAMENTAL IS NOT LIKELY TO REVEAL ENTIRE CONSISTENCY IN A
SERIES OF INSTANCES PRESENTING THE CLASH.  IT IS NOT TOO DIFFICULT TO
FIND WHAT ONE SEEKS IN THE LANGUAGE OF DECISIONS REPORTING THE EFFORT
TO RECONCILE FREE SPEECH WITH THE INTERESTS WITH WHICH IT CONFLICTS. 
THE CASE FOR THE DEFENDANTS REQUIRES THAT THEIR CONVICTION BE TESTED
AGAINST THE ENTIRE BODY OF OUR RELEVANT DECISIONS.  SINCE THE
SIGNIFICANCE OF EVERY EXPRESSION OF THOUGHT DERIVES FROM THE
CIRCUMSTANCES EVOKING IT, RESULTS REACHED RATHER THAN LANGUAGE EMPLOYED
GIVE THE VITAL MEANING.  SEE COHENS V. VIRGINIA, 6 WHEAT.  264, 442;
WAMBAUGH, THE STUDY OF CASES, 10. 

THERE IS AN ADDED REASON WHY WE MUST TURN TO THE DECISIONS.  "GREAT
CASES," IT IS APPROPRIATE TO REMEMBER, "LIKE HARD CASES MAKE BAD LAW. 
FOR GREAT CASES ARE CALLED GREAT, NOT BY REASON OF THEIR REAL
IMPORTANCE IN SHAPING THE LAW OF THE FUTURE, BUT BECAUSE OF SOME
ACCIDENT OF IMMEDIATE OVERWHELMING INTEREST WHICH APPEALS TO THE
FEELINGS AND DISTORTS THE JUDGMENT.  THESE IMMEDIATE INTERESTS EXERCISE
A KIND OF HYDRAULIC PRESSURE WHICH MAKES WHAT PREVIOUSLY WAS CLEAR SEEM
DOUBTFUL, AND BEFORE WHICH EVEN WELL SETTLED PRINCIPLES OF LAW WILL
BEND."  MR. JUSTICE HOLMES, DISSENTING IN NORTHERN SECURITIES CO. V.
UNITED STATES, 193 U.S. 197, 400-401. 

THIS IS SUCH A CASE.  UNLESS WE ARE TO COMPROMISE JUDICIAL
IMPARTIALITY AND SUBJECT THESE DEFENDANTS TO THE RISK OF AN AD HOC
JUDGMENT INFLUENCED BY THE IMPREGNATING ATMOSPHERE OF THE TIMES, THE
CONSTITUTIONALITY OF THEIR CONVICTION MUST BE DETERMINED BY PRINCIPLES
ESTABLISHED IN CASES DECIDED IN MORE TRANQUIL PERIODS.  IF THOSE
DECISIONS ARE TO BE USED AS A GUIDE AND NOT AS AN ARGUMENT, IT IS
IMPORTANT TO VIEW THEM AS A WHOLE AND TO DISTRUST THE EASY
GENERALIZATIONS TO WHICH SOME OF THEM LEND THEMSELVES. 

                                 II. 

WE HAVE RECOGNIZED AND RESOLVED CONFLICTS BETWEEN SPEECH AND
COMPETING INTERESTS IN SIX DIFFERENT TYPES OF CASES.  FN7 

1.  THE CASES INVOLVING A CONFLICT BETWEEN THE INTEREST IN ALLOWING
FREE EXPRESSION OF IDEAS IN PUBLIC PLACES AND THE INTEREST IN
PROTECTION OF THE PUBLIC PEACE AND THE PRIMARY USES OF STREETS AND
PARKS, WERE TOO RECENTLY CONSIDERED TO BE REHEARSED HERE.  NIEMOTKO V.
MARYLAND, 340 U.S. 268, 273.  IT SUFFICES TO RECALL THAT THE RESULT IN
EACH CASE WAS FOUND TO TURN ON THE CHARACTER OF THE INTEREST WITH WHICH
THE SPEECH CLASHED, THE METHOD USED TO IMPOSE THE RESTRICTION, AND THE
NATURE AND CIRCUMSTANCES OF THE UTTERANCE PROHIBITED.  WHILE THE
DECISIONS RECOGNIZED THE IMPORTANCE OF FREE SPEECH AND CAREFULLY
SCRUTINIZED THE JUSTIFICATION FOR ITS REGULATION, THEY REJECTED THE
NOTION THAT VINDICATION OF THE DEEP PUBLIC INTEREST IN FREEDOM OF
EXPRESSION REQUIRES SUBORDINATION OF ALL CONFLICTING VALUES. 

2.  A CRITIQUE OF THE CASES TESTING RESTRICTIONS ON PICKETING IS MADE
MORE DIFFICULT BY THE INADEQUATE RECOGNITION BY THE COURT FROM THE
OUTSET THAT THE LOYALTIES AND RESPONSES EVOKED AND EXACTED BY PICKET
LINES DIFFERENTIATE THIS FORM OF EXPRESSION FROM OTHER MODES OF
COMMUNICATION.  SEE THORNHILL V. ALABAMA, 310 U.S. 88.  BUT THE CRUX OF
THE DECISION IN THE THORNHILL CASE WAS THAT A STATE COULD NOT
CONSTITUTIONALLY PUNISH PEACEFUL PICKETING WHEN NEITHER THE AIM OF THE
PICKETING NOR THE MANNER IN WHICH IT WAS CARRIED OUT CONFLICTED WITH A
SUBSTANTIAL INTEREST.  IN SUBSEQUENT DECISIONS WE SUSTAINED
RESTRICTIONS DESIGNED TO PREVENT RECURRENCE OF VIOLENCE, MILK WAGON
DRIVERS UNION V. MEADOWMOOR DAIRIES, 312 U.S. 287, OR REASONABLY TO
LIMIT THE AREA OF INDUSTRIAL STRIFE, CARPENTERS & JOINERS UNION V.
RITTER'S CAFE, 315 U.S. 722; CF. BAKERY & PASTRY DRIVERS LOCAL V. WOHL,
315 U.S. 769.  WE HELD THAT A STATE'S POLICY AGAINST RESTRAINTS OF
TRADE JUSTIFIED IT IN PROHIBITING PICKETING WHICH VIOLATED THAT POLICY,
GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490; WE SUSTAINED RESTRICTIONS
DESIGNED TO ENCOURAGE SELF-EMPLOYED PERSONS, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS UNION V. HANKE, 339 U.S. 470; AND TO PREVENT RACIAL
DISCRIMINATION, HUGHES V. SUPERIOR COURT, 339 U.S. 460.  THE FOURTEENTH
AMENDMENT BARS A STATE FROM PROHIBITING PICKETING WHEN THERE IS NO FAIR
JUSTIFICATION FOR THE BREADTH OF THE RESTRICTION IMPOSED.  AMERICAN
FEDERATION OF LABOR V. SWING, 312 U.S. 321; CAFETERIA EMPLOYEES UNION
V. ANGELOS, 320 U.S. 293.  BUT IT DOES NOT PREVENT A STATE FROM DENYING
THE MEANS OF COMMUNICATION THAT PICKETING AFFORDS IN A FAIR BALANCE
BETWEEN THE INTERESTS OF TRADE UNIONISM AND OTHER INTERESTS OF THE
COMMUNITY. 

3.  IN THREE CASES WE HAVE CONSIDERED THE SCOPE AND APPLICATION OF
THE POWER OF THE GOVERNMENT TO EXCLUDE, DEPORT, OR DENATURALIZE ALIENS
BECAUSE OF THEIR ADVOCACY OR THEIR BELIEFS.  IN UNITED STATES EX REL.
TURNER V. WILLIAMS, 194 U.S. 279, WE HELD THAT THE FIRST AMENDMENT DID
NOT DISABLE CONGRESS FROM DIRECTING THE EXCLUSION OF AN ALIEN FOUND IN
AN ADMINISTRATIVE PROCEEDING TO BE AN ANARCHIST.  "(AS) LONG AS HUMAN
GOVERNMENTS ENDURE," WE SAID, "THEY CANNOT BE DENIED THE POWER OF SELF
PRESERVATION, AS THAT QUESTION IS PRESENTED HERE."  194 U.S. AT 294. 
IN SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, AND BRIDGES V. WIXON,
326 U.S. 135, WE DID NOT CONSIDER THE EXTENT OF THE POWER OF CONGRESS. 
IN EACH CASE, BY A CLOSELY DIVIDED COURT, WE INTERPRETED A STATUTE
AUTHORIZING DENATURALIZATION OR DEPORTATION TO IMPOSE ON THE GOVERNMENT
THE STRICTEST STANDARDS OF PROOF. 

4.  HISTORY REGARDS "FREEDOM OF THE PRESS" AS INDISPENSABLE FOR A
FREE SOCIETY AND FOR ITS GOVERNMENT.  WE HAVE, THEREFORE, INVALIDATED
DISCRIMINATORY TAXATION AGAINST THE PRESS AND PRIOR RESTRAINTS ON
PUBLICATION OF DEFAMATORY MATTER.  GROSJEAN V. AMERICAN PRESS CO., 297
U.S. 233; NEAR V. MINNESOTA, 283 U.S. 697. 

WE HAVE ALSO GIVEN CLEAR INDICATION OF THE IMPORTANCE WE ATTACH TO
DISSEMINATION OF IDEAS IN REVIEWING THE ATTEMPTS OF STATES TO RECONCILE
FREEDOM OF THE PRESS WITH PROTECTION OF THE INTEGRITY OF THE JUDICIAL
PROCESS.  IN PENNEKAMP V. FLORIDA, 328 U.S. 331, THE COURT AGREED THAT
THE FOURTEENTH AMENDMENT BARRED A STATE FROM ADJUDGING IN CONTEMPT OF
COURT THE PUBLISHER OF CRITICAL AND INACCURATE COMMENT ABOUT PORTIONS
OF A LITIGATION THAT FOR ALL PRACTICAL PURPOSES WERE NO LONGER
PENDING.  WE LIKEWISE AGREED, IN A MINOR PHASE OF OUR DECISION IN
BRIDGES V. CALIFORNIA, 314 U.S. 252, THAT EVEN WHEN STATEMENTS IN THE
PRESS RELATE TO MATTERS STILL PENDING BEFORE A COURT, CONVICTIONS FOR
THEIR PUBLICATION CANNOT BE SUSTAINED IF THEIR UTTERANCE IS TOO TRIVIAL
TO BE DEEMED A SUBSTANTIAL THREAT TO THE IMPARTIAL ADMINISTRATION OF
JUSTICE. 

THE COURT HAS, HOWEVER, SHARPLY DIVIDED ON WHAT CONSTITUTES A
SUFFICIENT INTERFERENCE WITH THE COURSE OF JUSTICE.  IN THE FIRST
DECISION, PATTERSON V. COLORADO, 205 U.S. 454, THE COURT AFFIRMED A
JUDGMENT FOR CONTEMPT IMPOSED BY A STATE SUPREME COURT FOR PUBLICATION
OF ARTICLES REFLECTING ON THE CONDUCT OF THE COURT IN CASES STILL
BEFORE IT ON MOTIONS FOR REHEARING.  IN THE BRIDGES CASE, HOWEVER, A
MAJORITY HELD THAT A STATE COURT COULD NOT PROTECT ITSELF FROM THE
IMPLIED THREAT OF A POWERFUL NEWSPAPER THAT FAILURE OF AN ELECTED JUDGE
TO IMPOSE A SEVERE SENTENCE WOULD BE A "SERIOUS MISTAKE."  THE SAME
CASE ALSO PLACED BEYOND A STATE'S POWER TO PUNISH THE PUBLICATION OF A
TELEGRAM FROM THE PRESIDENT OF AN IMPORTANT UNION WHO THREATENED A
DAMAGING STRIKE IN THE EVENT OF AN ADVERSE DECISION.  THE MAJORITY IN
CRAIG V. HARNEY, 331 U.S. 367, 376, HELD THAT THE FOURTEENTH AMENDMENT
PROTECTED "STRONG," "INTEMPERATE," "UNFAIR" CRITICISM OF THE WAY AN
ELECTED LAY JUDGE WAS CONDUCTING A PENDING CIVIL CASE.  NONE OF THE
CASES ESTABLISHES THAT THE PUBLIC INTEREST IN A FREE PRESS MUST IN ALL
INSTANCES PREVAIL OVER THE PUBLIC INTEREST IN DISPASSIONATE
ADJUDICATION.  BUT THE BRIDGES AND CRAIG DECISIONS, IF THEY SURVIVE,
TEND TO REQUIRE A SHOWING THAT INTERFERENCE BE SO IMMINENT AND SO
DEMONSTRABLE THAT THE POWER THEORETICALLY POSSESSED BY THE STATE IS
LARGELY PARALYZED. 

5.  OUR DECISION IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.
382, RECOGNIZED THAT THE EXERCISE OF POLITICAL RIGHTS PROTECTED BY THE
FIRST AMENDMENT WAS NECESSARILY DISCOURAGED BY THE REQUIREMENT OF THE
TAFT-HARTLEY ACT THAT OFFICERS OF UNIONS EMPLOYING THE SERVICES OF THE
NATIONAL LABOR RELATIONS BOARD SIGN AFFIDAVITS THAT THEY ARE NOT
COMMUNISTS.  BUT WE HELD THAT THE STATUTE WAS NOT FOR THIS REASON
PRESUMPTIVELY INVALID.  THE PROBLEM, WE SAID, WAS "ONE OF WEIGHING THE
PROBABLE EFFECTS OF THE STATUTE UPON THE FREE EXERCISE OF THE RIGHT OF
SPEECH AND ASSEMBLY AGAINST THE CONGRESSIONAL DETERMINATION THAT
POLITICAL STRIKES ARE EVILS OF CONDUCT WHICH CAUSE SUBSTANTIAL HARM TO
INTERSTATE COMMERCE AND THAT COMMUNISTS AND OTHERS IDENTIFIED BY SEC.
9(H) POSE CONTINUING THREATS TO THAT PUBLIC INTEREST WHEN IN POSITIONS
OF UNION LEADERSHIP."  339 U.S. AT 400.  ON BALANCE, WE DECIDED THAT
THE LEGISLATIVE JUDGMENT WAS A PERMISSIBLE ONE.  FN8 

6.  STATUTES PROHIBITING SPEECH BECAUSE OF ITS TENDENCY TO LEAD TO
CRIME PRESENT A CONFLICT OF INTERESTS WHICH BEARS DIRECTLY ON THE
PROBLEM NOW BEFORE US.  THE FIRST CASE IN WHICH WE CONSIDERED THIS
CONFLICT WAS FOX V. WASHINGTON, SUPRA.  THE STATUTE THERE CHALLENGED
HAD BEEN INTERPRETED TO PROHIBIT PUBLICATION OF MATTER "ENCOURAGING AN
ACTUAL BREACH OF LAW."  WE HELD THAT THE FOURTEENTH AMENDMENT DID NOT
PROHIBIT APPLICATION OF THE STATUTE TO AN ARTICLE WHICH WE CONCLUDED
INCITED A BREACH OF LAWS AGAINST INDECENT EXPOSURE.  WE SAID THAT THE
STATUTE "LAYS HOLD OF ENCOURAGEMENTS THAT, APART FROM STATUTE, IF
DIRECTED TO A PARTICULAR PERSON'S CONDUCT, GENERALLY WOULD MAKE HIM WHO
UTTERED THEM GUILTY OF A MISDEMEANOR IF NOT AN ACCOMPLICE OR A
PRINCIPAL IN THE CRIME ENCOURAGED, AND DEALS WITH THE PUBLICATION OF
THEM TO A WIDER AND LESS SELECTED AUDIENCE."  236 U.S. AT 277-278.  TO
BE SURE, THE FOX CASE PRECEDED THE EXPLICIT ABSORPTION OF THE SUBSTANCE
OF THE FIRST AMENDMENT IN THE FOURTEENTH.  BUT SUBSEQUENT DECISIONS
EXTENDED THE FOX PRINCIPLE TO FREE-SPEECH SITUATIONS.  THEY ARE SO
IMPORTANT TO THE PROBLEM BEFORE US THAT WE MUST CONSIDER THEM IN
DETAIL.    (A)  THE FIRST IMPORTANT APPLICATION OF THE PRINCIPLE WAS
MADE IN SIX CASES ARISING UNDER THE ESPIONAGE ACT OF 1917.  THAT ACT
PROHIBITS CONSPIRACIES AND ATTEMPTS TO "OBSTRUCT THE RECRUITING OR
ENLISTMENT SERVICE."  IN EACH OF THE FIRST THREE CASES, MR. JUSTICE
HOLMES WROTE FOR A UNANIMOUS COURT, AFFIRMING THE CONVICTIONS.  THE
EVIDENCE IN SCHENCK V. UNITED STATES, 249 U.S. 47, SHOWED THAT THE
DEFENDANT HAD CONSPIRED TO CIRCULATE AMONG MEN CALLED FOR THE DRAFT
15,000 COPIES OF A CIRCULAR WHICH ASSERTED A "RIGHT" TO OPPOSE THE
DRAFT.  THE DEFENDANT IN FROHWERK V. UNITED STATES, 249 U.S. 204, WAS
SHOWN TO HAVE CONSPIRED TO PUBLISH IN A NEWSPAPER TWELVE ARTICLES
DESCRIBING THE SUFFERINGS OF AMERICAN TROOPS AND THE FUTILITY OF OUR
WAR AIMS.  THE RECORD WAS INADEQUATE, AND WE SAID THAT IT WAS THEREFORE
"IMPOSSIBLE TO SAY THAT IT MIGHT NOT HAVE BEEN FOUND THAT THE
CIRCULATION OF THE PAPER WAS IN QUARTERS WHERE A LITTLE BREATH WOULD BE
ENOUGH TO KINDLE A FLAME AND THAT THE FACT WAS KNOWN AND RELIED UPON BY
THOSE WHO SENT THE PAPER OUT."  249 U.S. AT 209.  IN DEBS V. UNITED
STATES, 249 U.S. 211, THE INDICTMENT CHARGED THAT THE DEFENDANT HAD
DELIVERED A PUBLIC SPEECH EXPOUNDING SOCIALISM AND PRAISING SOCIALISTS
WHO HAD BEEN CONVICTED OF ABETTING VIOLATION OF THE DRAFT LAWS. 

THE GROUND OF DECISION IN EACH CASE WAS THE SAME.  THE FIRST
AMENDMENT "CANNOT HAVE BEEN, AND OBVIOUSLY WAS NOT, INTENDED TO GIVE
IMMUNITY FOR EVERY POSSIBLE USE OF LANGUAGE.  ROBERTSON V. BALDWIN, 165
U.S. 275, 281."  FROHWERK V. UNITED STATES, SUPRA, AT 206.  "THE
QUESTION IN EVERY CASE IS WHETHER THE WORDS USED ARE USED IN SUCH
CIRCUMSTANCES AND ARE OF SUCH A NATURE AS TO CREATE A CLEAR AND PRESENT
DANGER THAT THEY WILL BRING ABOUT THE SUBSTANTIVE EVILS THAT CONGRESS
HAS A RIGHT TO PREVENT.  IT IS A QUESTION OF PROXIMITY AND DEGREE." 
SCHENCK V. UNITED STATES, SUPRA, AT 52.  WHEN "THE WORDS USED HAD AS
THEIR NATURAL TENDENCY AND REASONABLY PROBABLE EFFECT TO OBSTRUCT THE
RECRUITING SERVICE," AND "THE DEFENDANT HAD THE SPECIFIC INTENT TO DO
SO IN HIS MIND," CONVICTION IN WARTIME IS NOT PROHIBITED BY THE
CONSTITUTION.  DEBS V. UNITED STATES, SUPRA, AT 216. 

IN THE THREE SUCCEEDING CASES HOLMES AND BRANDEIS, JJ., DISSENTED
FROM JUDGMENTS OF THE COURT AFFIRMING CONVICTIONS.  THE INDICTMENT IN
ABRAMS V. UNITED STATES, 250 U.S. 616, WAS LAID UNDER AN AMENDMENT TO
THE ESPIONAGE ACT WHICH PROHIBITED CONSPIRACIES TO ADVOCATE CURTAILMENT
OF PRODUCTION OF MATERIAL NECESSARY TO PROSECUTION OF THE WAR, WITH THE
INTENT THEREBY TO HINDER THE UNITED STATES IN THE PROSECUTION OF THE
WAR.  IT APPEARED THAT THE DEFENDANTS WERE ANARCHISTS WHO HAD PRINTED
CIRCULARS AND DISTRIBUTED THEM IN NEW YORK CITY.  THE LEAFLETS REPEATED
STANDARD MARXIST SLOGANS, CONDEMNED AMERICAN INTERVENTION IN RUSSIA,
AND CALLED FOR A GENERAL STRIKE IN PROTEST.  IN SCHAEFER V. UNITED
STATES, 251 U.S. 466, THE EDITORS OF A GERMAN-LANGUAGE NEWSPAPER IN
PHILADELPHIA WERE CHARGED WITH OBSTRUCTING THE RECRUITING SERVICE AND
WITH WILFULLY PUBLISHING FALSE REPORTS WITH THE INTENT TO PROMOTE THE
SUCCESS OF THE ENEMIES OF THE UNITED STATES.  THE EVIDENCE SHOWED
PUBLICATION OF ARTICLES WHICH ACCUSED AMERICAN TROOPS OF WEAKNESS AND
MENDACITY AND IN ONE INSTANCE MISQUOTED OR MISTRANSLATED TWO WORDS OF A
SENATOR'S SPEECH.  THE INDICTMENT IN PIERCE V. UNITED STATES, 252 U.S.
239, CHARGED THAT THE DEFENDANTS HAD ATTEMPTED TO CAUSE INSUBORDINATION
IN THE ARMED FORCES AND HAD CONVEYED FALSE REPORTS WITH INTENT TO
INTERFERE WITH MILITARY OPERATIONS.  CONVICTION WAS BASED ON
CIRCULATION OF A PAMPHLET WHICH BELITTLED ALLIED WAR AIMS AND
CRITICIZED CONSCRIPTION IN STRONG TERMS. 

IN EACH CASE BOTH THE MAJORITY AND THE DISSENTING OPINIONS RELIED ON
SCHENCK V. UNITED STATES.  THE COURT DIVIDED ON ITS VIEW OF THE
EVIDENCE.  THE MAJORITY HELD THAT THE JURY COULD INFER THE REQUIRED
INTENT AND THE PROBABLE EFFECT OF THE ARTICLES FROM THEIR CONTENT. 
HOLMES AND BRANDEIS, JJ., THOUGHT THAT ONLY "EXPRESSIONS OF OPINION AND
EXHORTATIONS," 250 U.S. AT 631, WERE INVOLVED, THAT THEY WERE "PUNY
ANONYMITIES," 250 U.S. AT 629, "IMPOTENT TO PRODUCE THE EVIL AGAINST
WHICH THE STATUTE AIMED," 251 U.S. 493, AND THAT FROM THEM THE SPECIFIC
INTENT REQUIRED BY THE STATUTE COULD NOT REASONABLY BE INFERRED.  THE
COURT AGREED THAT AN INCITEMENT TO DISOBEY THE DRAFT STATUTE COULD
CONSTITUTIONALLY BE PUNISHED.  IT DISAGREED OVER THE PROOF REQUIRED TO
SHOW SUCH AN INCITEMENT. 

(B)  IN THE EYES OF A MAJORITY OF THE COURT, GITLOW V. NEW YORK, 268
U.S. 652, PRESENTED A VERY DIFFERENT PROBLEM.  THERE THE DEFENDANT HAD
BEEN CONVICTED UNDER A NEW YORK STATUTE NEARLY IDENTICAL WITH THE SMITH
ACT NOW BEFORE US.  THE EVIDENCE SHOWED THAT THE DEFENDANT WAS AN
OFFICIAL OF THE LEFT WING SECTION OF THE SOCIALIST PARTY, AND THAT HE
WAS RESPONSIBLE FOR PUBLICATION OF A LEFT WING MANIFESTO.  THIS
DOCUMENT REPUDIATED "MODERATE SOCIALISM," AND URGED THE NECESSITY OF A
MILITANT "REVOLUTIONARY SOCIALISM," BASED ON CLASS STRUGGLE AND
REVOLUTIONARY MASS ACTION.  NO EVIDENCE OF THE EFFECT OF THE MANIFESTO
WAS INTRODUCED; BUT THE JURY WERE INSTRUCTED THAT THEY COULD NOT
CONVICT UNLESS THEY FOUND THAT THE DOCUMENT ADVOCATED EMPLOYING
UNLAWFUL ACTS FOR THE PURPOSE OF OVERTHROWING ORGANIZED GOVERNMENT. 

THE CONVICTION WAS AFFIRMED.  THE QUESTION, THE COURT HELD, WAS
ENTIRELY DIFFERENT FROM THAT INVOLVED IN SCHENCK V. UNITED STATES,
WHERE THE STATUTE PROHIBITED ACTS WITHOUT REFERENCE TO LANGUAGE.  HERE,
WHERE "THE LEGISLATIVE BODY HAS DETERMINED GENERALLY, IN THE
CONSTITUTIONAL EXERCISE OF ITS DISCRETION, THAT UTTERANCES OF A CERTAIN
KIND INVOLVE SUCH DANGER OF SUBSTANTIVE EVIL THAT THEY MAY BE PUNISHED,
THE QUESTION WHETHER ANY SPECIFIC UTTERANCE COMING WITHIN THE
PROHIBITED CLASS IS LIKELY, IN AND OF ITSELF, TO BRING ABOUT THE
SUBSTANTIVE EVIL, IS NOT OPEN TO CONSIDERATION."  268 U.S. AT 670.  IT
IS SUFFICIENT THAT THE DEFENDANT'S CONDUCT FALLS WITHIN THE STATUTE,
AND THAT THE STATUTE IS A REASONABLE EXERCISE OF LEGISLATIVE JUDGMENT. 

THIS PRINCIPLE WAS ALSO APPLIED IN WHITNEY V. CALIFORNIA, 274 U.S.
357, TO SUSTAIN A CONVICTION UNDER A STATE CRIMINAL SYNDICALISM
STATUTE.  THAT STATUTE MADE IT A FELONY TO ASSIST IN ORGANIZING A GROUP
ASSEMBLED TO ADVOCATE THE COMMISSION OF CRIME, SABOTAGE, OR UNLAWFUL
ACTS OF VIOLENCE AS A MEANS OF EFFECTING POLITICAL OR INDUSTRIAL
CHANGE.  THE DEFENDANT WAS FOUND TO HAVE ASSISTED IN ORGANIZING THE
COMMUNIST LABOR PARTY OF CALIFORNIA, AN ORGANIZATION FOUND TO HAVE THE
SPECIFIED CHARACTER.  IT WAS HELD THAT THE LEGISLATURE WAS NOT
UNREASONABLE IN BELIEVING ORGANIZATION OF SUCH A PARTY "INVOLVES SUCH
DANGER TO THE PUBLIC PEACE AND THE SECURITY OF THE STATE, THAT THESE
ACTS SHOULD BE PENALIZED IN THE EXERCISE OF ITS POLICE POWER."  274
U.S. AT 371. 

IN NEITHER OF THESE CASES DID MR. JUSTICE HOLMES AND MR. JUSTICE
BRANDEIS ACCEPT THE REASONING OF THE COURT.  "'THE QUESTION,'" THEY
SAID, QUOTING FROM SCHENCK V. UNITED STATES, "'IN EVERY CASE IS WHETHER
THE WORDS USED ARE USED IN SUCH CIRCUMSTANCES AND ARE OF SUCH A NATURE
AS TO CREATE A CLEAR AND PRESENT DANGER THAT THEY WILL BRING ABOUT THE
SUBSTANTIVE EVILS THAT (THE STATE) HAS A RIGHT TO PREVENT.'"  268 U.S.
AT 672-673.  SINCE THE MANIFESTO CIRCULATED BY GITLOW "HAD NO CHANCE OF
STARTING A PRESENT CONFLAGRATION," 268 U.S. AT 673, THEY DISSENTED FROM
THE AFFIRMANCE OF HIS CONVICTION.  IN WHITNEY V. CALIFORNIA, THEY
CONCURRED IN THE RESULT REACHED BY THE COURT, BUT ONLY BECAUSE THE
RECORD CONTAINED SOME EVIDENCE THAT ORGANIZATION OF THE COMMUNIST LABOR
PARTY MIGHT FURTHER A CONSPIRACY TO COMMIT IMMEDIATE SERIOUS CRIMES,
AND THE CREDIBILITY OF THE EVIDENCE WAS NOT PUT IN ISSUE BY THE
DEFENDANT.  FN9 

(C)  SUBSEQUENT DECISIONS HAVE ADDED LITTLE TO THE PRINCIPLES
ESTABLISHED IN THESE TWO GROUPS OF CASES.  IN THE ONLY CASE ARISING
UNDER THE ESPIONAGE ACT DECIDED BY THIS COURT DURING THE LAST WAR, THE
SUBSTANTIALITY OF THE EVIDENCE WAS THE CRUCIAL ISSUE.  THE DEFENDANT IN
HARTZEL V. UNITED STATES, 322 U.S. 680, WAS AN EDUCATED MAN AND A
CITIZEN, NOT ACTIVELY AFFILIATED WITH ANY POLITICAL GROUP.  IN 1942 HE
WROTE THREE ARTICLES CONDEMNING OUR WARTIME ALLIES AND URGING THAT THE
WAR BE CONVERTED INTO A RACIAL CONFLICT.  HE MAILED THE TRACTS TO 600
PEOPLE, INCLUDING HIGH-RANKING MILITARY OFFICERS.  ACCORDING TO HIS
TESTIMONY HIS INTENTION WAS TO "CREATE SENTIMENT AGAINST WAR AMONGST
THE WHITE RACES."  THE MAJORITY OF THIS COURT HELD THAT A JURY COULD
NOT REASONABLY INFER FROM THESE FACTS THAT THE DEFENDANT HAD ACTED WITH
A SPECIFIC INTENT TO CAUSE INSUBORDINATION OR DISLOYALTY IN THE ARMED
FORCES. 

OF GREATER IMPORTANCE IS THE FACT THAT THE ISSUE OF LAW WHICH DIVIDED
THE COURT IN THE GITLOW AND WHITNEY CASES HAS NOT AGAIN BEEN CLEARLY
RAISED, ALTHOUGH IN FOUR ADDITIONAL INSTANCES WE HAVE REVIEWED
CONVICTIONS UNDER COMPARABLE STATUTES.  FISKE V. KANSAS, 274 U.S. 380,
INVOLVED A CRIMINAL SYNDICALISM STATUTE SIMILAR TO THAT BEFORE US IN
WHITNEY V. CALIFORNIA.  WE REVERSED A CONVICTION BASED ON EVIDENCE THAT
THE DEFENDANT EXHIBITED AN INNOCUOUS PREAMBLE TO THE CONSTITUTION OF
THE INDUSTRIAL WORKERS OF THE WORLD IN SOLICITING MEMBERS FOR THAT
ORGANIZATION.  IN HERNDON V. LOWRY, 301 U.S. 242, THE DEFENDANT HAD
SOLICITED MEMBERS FOR THE COMMUNIST PARTY, BUT THERE WAS NO PROOF THAT
HE HAD URGED OR EVEN APPROVED THOSE OF THE PARTY'S AIMS WHICH WERE
UNLAWFUL.  WE REVERSED A CONVICTION OBTAINED UNDER A STATUTE
PROHIBITING AN ATTEMPT TO INCITE TO INSURRECTION BY VIOLENCE, ON THE
GROUND THAT THE FOURTEENTH AMENDMENT PROHIBITED CONVICTION WHERE ON THE
EVIDENCE A JURY COULD NOT REASONABLY INFER THAT THE DEFENDANT HAD
VIOLATED THE STATUTE THE STATE SOUGHT TO APPLY.  FN10 

THE OTHER TWO DECISIONS GO NO FURTHER THAN TO HOLD THAT THE STATUTE
AS CONSTRUED BY THE STATE COURTS EXCEEDED THE BOUNDS OF A LEGISLATIVE
JUDGMENT FOUNDED IN REASON.  THE STATUTE PRESENTED IN DE JONGE V.
OREGON, 299 U.S. 353, HAD BEEN CONSTRUED TO APPLY TO ANYONE WHO MERELY
ASSISTED IN THE CONDUCT OF A MEETING HELD UNDER THE AUSPICES OF THE
COMMUNIST PARTY.  IN TAYLOR V. MISSISSIPPI, 319 U.S. 583, THE STATUTE
PROHIBITED DISSEMINATION OF PRINTED MATTER "DESIGNED AND CALCULATED TO
ENCOURAGE VIOLENCE, SABOTAGE, OR DISLOYALTY TO THE GOVERNMENT OF THE
UNITED STATES, OR THE STATE OF MISSISSIPPI."  WE REVERSED A CONVICTION
FOR WHAT WE CONCLUDED WAS MERE CRITICISM AND PROPHESY, WITHOUT
INDICATING WHETHER WE THOUGHT THE STATUTE COULD IN ANY CIRCUMSTANCES
VALIDLY BE APPLIED.  WHAT THE DEFENDANTS COMMUNICATED, WE SAID, "IS NOT
CLAIMED OR SHOWN TO HAVE BEEN DONE WITH AN EVIL OR SINISTER PURPOSE, TO
HAVE ADVOCATED OR INCITED SUBVERSIVE ACTION AGAINST THE NATION OR
STATE, OR TO HAVE THREATENED ANY CLEAR AND PRESENT DANGER TO OUR
INSTITUTIONS OR OUR GOVERNMENT."  319 U.S. AT 589-590. 

I MUST LEAVE TO OTHERS THE UNGRATEFUL TASK OF TRYING TO RECONCILE ALL
THESE DECISIONS.  IN SOME INSTANCES WE HAVE TOO READILY PERMITTED
JURIES TO INFER DECEPTION FROM ERROR, OR INTENTION FROM ARGUMENTATIVE
OR CRITICAL STATEMENTS.  ABRAMS V. UNITED STATES, SUPRA; SCHAEFER V.
UNITED STATES, SUPRA; PIERCE V. UNITED STATES, SUPRA; GILBERT V.
MINNESOTA, 254 U.S. 325.  IN OTHER INSTANCES WE WEIGHTED THE INTEREST
IN FREE SPEECH SO HEAVILY THAT WE PERMITTED ESSENTIAL CONFLICTING
VALUES TO BE DESTROYED.  BRIDGES V. CALIFORNIA, SUPRA; CRAIG V. HARNEY,
SUPRA.  VIEWED AS A WHOLE, HOWEVER, THE DECISIONS EXPRESS AN ATTITUDE
TOWARD THE JUDICIAL FUNCTION AND A STANDARD OF VALUES WHICH FOR ME ARE
DECISIVE OF THE CASE BEFORE US. 

FIRST. - FREE-SPEECH CASES ARE NOT AN EXCEPTION TO THE PRINCIPLE THAT
WE ARE NOT LEGISLATORS, THAT DIRECT POLICYMAKING IS NOT OUR PROVINCE. 
HOW BEST TO RECONCILE COMPETING INTERESTS IS THE BUSINESS OF
LEGISLATURES, AND THE BALANCE THEY STRIKE IS A JUDGMENT NOT TO BE
DISPLACED BY OURS, BUT TO BE RESPECTED UNLESS OUTSIDE THE PALE OF FAIR
JUDGMENT. 

ON OCCASION WE HAVE STRAINED TO INTERPRET LEGISLATION IN ORDER TO
LIMIT ITS EFFECT ON INTERESTS PROTECTED BY THE FIRST AMENDMENT. 
SCHNEIDERMAN V. UNITED STATES, SUPRA; BRIDGES V. WIXON, SUPRA. IN SOME
INSTANCES WE HAVE DENIED TO STATES THE DEFERENCE TO WHICH I THINK THEY
ARE ENTITLED.  BRIDGES V. CALIFORNIA, SUPRA; CRAIG V. HARNEY, SUPRA.
ONCE IN THIS RECENT COURSE OF DECISIONS THE COURT REFUSED TO PERMIT A
JURY TO DRAW INFERENCES WHICH SEEMED TO ME TO BE OBVIOUSLY REASONABLE. 
HARTZEL V. UNITED STATES, SUPRA. 

BUT IN NO CASE HAS A MAJORITY OF THIS COURT HELD THAT A LEGISLATIVE
JUDGMENT, EVEN AS TO FREEDOM OF UTTERANCE, MAY BE OVERTURNED MERELY
BECAUSE THE COURT WOULD HAVE MADE A DIFFERENT CHOICE BETWEEN THE
COMPETING INTERESTS HAD THE INITIAL LEGISLATIVE JUDGMENT BEEN FOR IT TO
MAKE.  IN THE CASES IN WHICH THE OPINIONS GO FARTHEST TOWARDS
INDICATING A TOTAL REJECTION OF RESPECT FOR LEGISLATIVE DETERMINATIONS,
THE INTERESTS BETWEEN WHICH CHOICE WAS ACTUALLY MADE WERE SUCH THAT
DECISION MIGHT WELL HAVE BEEN EXPRESSED IN THE FAMILIAR TERMS OF WANT
OF REASON IN THE LEGISLATIVE JUDGMENT.  IN THOMAS V. COLLINS, 323 U.S.
516, FOR EXAMPLE, DECISION COULD NOT UNREASONABLY HAVE BEEN PLACED ON
THE GROUND THAT NO SUBSTANTIAL INTEREST JUSTIFIED A STATE IN REQUIRING
AN OUT-OF-STATE LABOR LEADER TO REGISTER BEFORE SPEAKING IN ADVOCACY OF
THE CAUSE OF TRADE UNIONISM.  IN MARTIN V. CITY OF STRUTHERS, 319 U.S.
141, IT WAS BROADLY HELD THAT A MUNICIPALITY WAS NOT JUSTIFIED IN
PROHIBITING KNOCKING ON DOORS AND RINGING DOORBELLS FOR THE PURPOSE OF
DELIVERING HANDBILLS.  BUT SINCE THE GOOD FAITH AND REASONABLENESS OF
THE REGULATION WERE PLACED IN DOUBT BY THE FACT THAT THE CITY DID NOT
THINK IT NECESSARY ALSO TO PROHIBIT DOOR-TO-DOOR COMMERCIAL SALES,
DECISION COULD BE SUSTAINED ON NARROWER GROUND.  AND COMPARE BREARD V.
ALEXANDRIA, POST, P. 622, DECIDED THIS DAY.    IN OTHER CASES,
MOREOVER, WE HAVE GIVEN CLEAR INDICATION THAT EVEN WHEN FREE SPEECH IS
INVOLVED WE ATTACH GREAT SIGNIFICANCE TO THE DETERMINATION OF THE
LEGISLATURE.  GITLOW V. NEW YORK, SUPRA; WHITNEY V. CALIFORNIA, SUPRA;
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, SUPRA; CF. BRIDGES V.
CALIFORNIA, 314 U.S. AT 260.  AND SEE HUGHES V. SUPERIOR COURT, SUPRA;
INTERNATIONAL BROTHERHOOD OF TEAMSTERS UNION V. HANKE, SUPRA. 

IN GITLOW V. NEW YORK, WE PUT OUR RESPECT FOR THE LEGISLATIVE
JUDGMENT IN TERMS WHICH, IF THEY WERE ACCEPTED HERE, WOULD MAKE
DECISION EASY.  FOR THAT CASE HELD THAT, WHEN THE LEGISLATURE HAS
DETERMINED THAT ADVOCACY OF FORCEFUL OVERTHROW SHOULD BE FORBIDDEN, A
CONVICTION MAY BE SUSTAINED WITHOUT A FINDING THAT IN THE PARTICULAR
CASE THE ADVOCACY HAD A CLOSE RELATION TO A SERIOUS ATTEMPT AT
OVERTHROW.  WE HELD THAT IT WAS ENOUGH THAT THE STATUTE BE A REASONABLE
EXERCISE OF THE LEGISLATIVE JUDGMENT, AND THAT THE DEFENDANT'S CONDUCT
FALL WITHIN THE STATUTE. 

ONE OF THE JUDGES BELOW RESTED HIS AFFIRMANCE ON THE GITLOW DECISION,
AND THE DEFENDANTS DO NOT ATTEMPT TO DISTINGUISH THE CASE.  THEY PLACE
THEIR ARGUMENT SQUARELY ON THE GROUND THAT THE CASE HAS BEEN OVERRULED
BY SUBSEQUENT DECISIONS.  IT HAS NOT BEEN EXPLICITLY OVERRULED.  BUT IT
WOULD BE DISINGENUOUS TO DENY THAT THE DISSENT IN GITLOW HAS BEEN
TREATED WITH THE RESPECT USUALLY ACCORDED TO A DECISION. 

THE RESULT OF THE GITLOW DECISION WAS TO SEND A LEFT-WING SOCIALIST
TO JAIL FOR PUBLISHING A MANIFESTO EXPRESSING MARXIST EXHORTATIONS.  IT
REQUIRES EXCESSIVE TOLERANCE OF THE LEGISLATIVE JUDGMENT TO SUPPOSE
THAT THE GITLOW PUBLICATION IN THE CIRCUMSTANCES COULD JUSTIFY SERIOUS
CONCERN. 

IN CONTRAST, THERE IS AMPLE JUSTIFICATION FOR A LEGISLATIVE JUDGMENT
THAT THE CONSPIRACY NOW BEFORE US IS A SUBSTANTIAL THREAT TO NATIONAL
ORDER AND SECURITY.  IF THE SMITH ACT IS JUSTIFIED AT ALL, IT IS
JUSTIFIED PRECISELY BECAUSE IT MAY SERVE TO PROHIBIT THE TYPE OF
CONSPIRACY FOR WHICH THESE DEFENDANTS WERE CONVICTED.  THE COURT BELOW
PROPERLY HELD THAT AS A MATTER OF SEPARABILITY THE SMITH ACT MAY BE
LIMITED TO THOSE SITUATIONS TO WHICH IT CAN CONSTITUTIONALLY BE
APPLIED.  SEE 183 F.2D AT 214-215.  OUR DECISION TODAY CERTAINLY DOES
NOT MEAN THAT THE SMITH ACT CAN CONSTITUTIONALLY BE APPLIED TO FACTS
LIKE THOSE IN GITLOW V. NEW YORK.  WHILE RELIANCE MAY PROPERLY BE
PLACED ON THE ATTITUDE OF JUDICIAL SELF-RESTRAINT WHICH THE GITLOW
DECISION REFLECTS, IT IS NOT NECESSARY TO DEPEND ON THE FACTS OR THE
FULL EXTENT OF THE THEORY OF THAT CASE IN ORDER TO FIND THAT THE
JUDGMENT OF CONGRESS, AS APPLIED TO THE FACTS OF THE CASE NOW BEFORE
US, IS NOT IN CONFLICT WITH THE FIRST AMENDMENT. 

SECOND. - A SURVEY OF THE RELEVANT DECISIONS INDICATES THAT THE
RESULTS WHICH WE HAVE REACHED ARE ON THE WHOLE THOSE THAT WOULD ENSUE
FROM CAREFUL WEIGHING OF CONFLICTING INTERESTS.  THE COMPLEX ISSUES
PRESENTED BY REGULATION OF SPEECH IN PUBLIC PLACES, BY PICKETING, AND
BY LEGISLATION PROHIBITING ADVOCACY OF CRIME HAVE BEEN RESOLVED BY
SCRUTINY OF MANY FACTORS BESIDES THE IMMINENCE AND GRAVITY OF THE EVIL
THREATENED.  THE MATTER HAS BEEN WELL SUMMARIZED BY A REFLECTIVE
STUDENT OF THE COURT'S WORK.  "THE TRUTH IS THAT THE CLEAR-AND-PRESENT
DANGER TEST IS AN OVERSIMPLIFIED JUDGMENT UNLESS IT TAKES ACCOUNT ALSO
OF A NUMBER OF OTHER FACTORS:  THE RELATIVE SERIOUSNESS OF THE DANGER
IN COMPARISON WITH THE VALUE OF THE OCCASION FOR SPEECH OR POLITICAL
ACTIVITY; THE AVAILABILITY OF MORE MODERATE CONTROLS THAN THOSE WHICH
THE STATE HAS IMPOSED; AND PERHAPS THE SPECIFIC INTENT WITH WHICH THE
SPEECH OR ACTIVITY IS LAUNCHED.  NO MATTER HOW RAPIDLY WE UTTER THE
PHRASE 'CLEAR AND PRESENT DANGER,' OR HOW CLOSELY WE HYPHENATE THE
WORDS, THEY ARE NOT A SUBSTITUTE FOR THE WEIGHING OF VALUES.  THEY TEND
TO CONVEY A DELUSION OF CERTITUDE WHEN WHAT IS MOST CERTAIN IS THE
COMPLEXITY OF THE STRANDS IN THE WEB OF FREEDOMS WHICH THE JUDGE MUST
DISENTANGLE."  FREUND, ON UNDERSTANDING THE SUPREME COURT, 27-28. 

IT IS A FAMILIAR EXPERIENCE IN THE LAW THAT NEW SITUATIONS DO NOT FIT
NEATLY INTO LEGAL CONCEPTIONS THAT AROSE UNDER DIFFERENT CIRCUMSTANCES
TO SATISFY DIFFERENT NEEDS.  SO IT WAS WHEN THE INJUNCTION WAS TORTURED
INTO AN INSTRUMENT OF OPPRESSION AGAINST LABOR IN INDUSTRIAL
CONFLICTS.  SO IT IS WITH THE ATTEMPT TO USE THE DIRECTION OF THOUGHT
LYING BEHIND THE CRITERION OF "CLEAR AND PRESENT DANGER" WHOLLY OUT OF
THE CONTEXT IN WHICH IT ORIGINATED, AND TO MAKE OF IT AN ABSOLUTE DOGMA
AND DEFINITIVE MEASURING ROD FOR THE POWER OF CONGRESS TO DEAL WITH
ASSAULTS AGAINST SECURITY THROUGH DEVICES OTHER THAN OVERT PHYSICAL
ATTEMPTS. 

BEARING IN MIND THAT MR. JUSTICE HOLMES REGARDED QUESTIONS UNDER THE
FIRST AMENDMENT AS QUESTIONS OF "PROXIMITY AND DEGREE," SCHENCK V.
UNITED STATES, 249 U.S. AT 52, IT WOULD BE A DISTORTION, INDEED A
MOCKERY, OF HIS REASONING TO COMPARE THE "PUNY ANONYMITIES," 250 U.S.
AT 629, TO WHICH HE WAS ADDRESSING HIMSELF IN THE ABRAMS CASE IN 1919
OR THE PUBLICATION THAT WAS "FUTILE AND TOO REMOTE FROM POSSIBLE
CONSEQUENCES," 268 U.S. AT 673, IN THE GITLOW CASE IN 1925 WITH THE
SETTING OF EVENTS IN THIS CASE IN 1950. 

"IT DOES AN ILL-SERVICE TO THE AUTHOR OF THE MOST QUOTED JUDICIAL
PHRASES REGARDING FREEDOM OF SPEECH, TO MAKE HIM THE VICTIM OF A
TENDENCY WHICH HE FOUGHT ALL HIS LIFE, WHEREBY PHRASES ARE MADE TO DO
SERVICE FOR CRITICAL ANALYSIS BY BEING TURNED INTO DOGMA.  'IT IS ONE
OF THE MISFORTUNES OF THE LAW THAT IDEAS BECOME ENCYSTED IN PHRASES AND
THEREAFTER FOR A LONG TIME CEASE TO PROVOKE FURTHER ANALYSIS.'  HOLMES,
J., DISSENTING, IN HYDE V. UNITED STATES, 225 U.S. 347, 384, AT 391." 
THE PHRASE "CLEAR AND PRESENT DANGER," IN ITS ORIGIN, "SERVED TO
INDICATE THE IMPORTANCE OF FREEDOM OF SPEECH TO A FREE SOCIETY BUT ALSO
TO EMPHASIZE THAT ITS EXERCISE MUST BE COMPATIBLE WITH THE PRESERVATION
OF OTHER FREEDOMS ESSENTIAL TO A DEMOCRACY AND GUARANTEED BY OUR
CONSTITUTION."  PENNEKAMP V. FLORIDA, 328 U.S. 331, 350, 352
353(CONCURRING).  IT WERE FAR BETTER THAT THE PHRASE BE ABANDONED THAN
THAT IT BE SOUNDED ONCE MORE TO HIDE FROM THE BELIEVERS IN AN ABSOLUTE
RIGHT OF FREE SPEECH THE PLAIN FACT THAT THE INTEREST IN SPEECH,
PROFOUNDLY IMPORTANT AS IT IS, IS NO MORE CONCLUSIVE IN JUDICIAL REVIEW
THAN OTHER ATTRIBUTES OF DEMOCRACY OR THAN A DETERMINATION OF THE
PEOPLE'S REPRESENTATIVES THAT A MEASURE IS NECESSARY TO ASSURE THE
SAFETY OF GOVERNMENT ITSELF. 

THIRD. - NOT EVERY TYPE OF SPEECH OCCUPIES THE SAME POSITION ON THE
SCALE OF VALUES.  THERE IS NO SUBSTANTIAL PUBLIC INTEREST IN PERMITTING
CERTAIN KINDS OF UTTERANCES:  "THE LEWD AND OBSCENE, THE PROFANE, THE
LIBELOUS, AND THE INSULTING OR 'FIGHTING' WORDS - THOSE WHICH BY THEIR
VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE AN IMMEDIATE BREACH OF
THE PEACE."  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572.  WE HAVE
FREQUENTLY INDICATED THAT THE INTEREST IN PROTECTING SPEECH DEPENDS ON
THE CIRCUMSTANCES OF THE OCCASION.  SEE CASES COLLECTED IN NIEMOTKO V.
MARYLAND, 340 U.S. AT 275-283.  IT IS PERTINENT TO THE DECISION BEFORE
US TO CONSIDER WHERE ON THE SCALE OF VALUES WE HAVE IN THE PAST PLACED
THE TYPE OF SPEECH NOW CLAIMING CONSTITUTIONAL IMMUNITY. 

THE DEFENDANTS HAVE BEEN CONVICTED OF CONSPIRING TO ORGANIZE A PARTY
OF PERSONS WHO ADVOCATE THE OVERTHROW OF THE GOVERNMENT BY FORCE AND
VIOLENCE.  THE JURY HAS FOUND THAT THE OBJECT OF THE CONSPIRACY IS
ADVOCACY AS "A RULE OR PRINCIPLE OF ACTION," "BY LANGUAGE REASONABLY
AND ORDINARILY CALCULATED TO INCITE PERSONS TO SUCH ACTION," AND WITH
THE INTENT TO CAUSE THE OVERTHROW "AS SPEEDILY AS CIRCUMSTANCES WOULD
PERMIT." 

ON ANY SCALE OF VALUES WHICH WE HAVE HITHERTO RECOGNIZED, SPEECH OF
THIS SORT RANKS LOW. 

THROUGHOUT OUR DECISIONS THERE HAS RECURRED A DISTINCTION BETWEEN THE
STATEMENT OF AN IDEA WHICH MAY PROMPT ITS HEARERS TO TAKE UNLAWFUL
ACTION, AND ADVOCACY THAT SUCH ACTION BE TAKEN.  THE DISTINCTION HAS
ITS ROOT IN THE CONCEPTION OF THE COMMON LAW, SUPPORTED BY PRINCIPLES
OF MORALITY, THAT A PERSON WHO PROCURES ANOTHER TO DO AN ACT IS
RESPONSIBLE FOR THAT ACT AS THOUGH HE HAD DONE IT HIMSELF.  THIS
PRINCIPLE WAS EXTENDED IN FOX V. WASHINGTON, SUPRA, TO WORDS DIRECTED
TO THE PUBLIC GENERALLY WHICH WOULD CONSTITUTE AN INCITEMENT WERE THEY
DIRECTED TO AN INDIVIDUAL.  IT WAS ADAPTED IN SCHENCK V. UNITED STATES,
SUPRA, INTO A RULE OF EVIDENCE DESIGNED TO RESTRICT APPLICATION OF THE
ESPIONAGE ACT.  IT WAS RELIED ON BY THE COURT IN GITLOW V. NEW YORK,
SUPRA. THE DISTINCTION HAS BEEN REPEATED IN MANY OF THE DECISIONS IN
WHICH WE HAVE UPHELD THE CLAIMS OF SPEECH.  WE FREQUENTLY HAVE
DISTINGUISHED PROTECTED FORMS OF EXPRESSION FROM STATEMENTS WHICH
"INCITE TO VIOLENCE AND CRIME AND THREATEN THE OVERTHROW OF ORGANIZED
GOVERNMENT BY UNLAWFUL MEANS."  STROMBERG V. CALIFORNIA, 283 U.S. AT
369.  SEE ALSO NEAR V. MINNESOTA, 283 U.S. AT 716; DE JONGE V. OREGON,
299 U.S. AT 365; CANTWELL V. CONNECTICUT, 310 U.S. 296, 308; TAYLOR V.
MISSISSIPPI, 319 U.S. AT 589. 

IT IS TRUE THAT THERE IS NO DIVINING ROD BY WHICH WE MAY LOCATE
"ADVOCACY."  EXPOSITION OF IDEAS READILY MERGES INTO ADVOCACY.  THE
SAME JUSTICE WHO GAVE CURRENCY TO APPLICATION OF THE INCITEMENT
DOCTRINE IN THIS FIELD DISSENTED FOUR TIMES FROM WHAT HE THOUGHT WAS
ITS MISAPPLICATION.  AS HE SAID IN THE GITLOW DISSENT, "EVERY IDEA IS
AN INCITEMENT."  268 U.S. AT 673.  EVEN THOUGH ADVOCACY OF OVERTHROW
DESERVES LITTLE PROTECTION, WE SHOULD HESITATE TO PROHIBIT IT IF WE
THEREBY INHIBIT THE INTERCHANGE OF RATIONAL IDEAS SO ESSENTIAL TO
REPRESENTATIVE GOVERNMENT AND FREE SOCIETY. 

BUT THERE IS UNDERLYING VALIDITY IN THE DISTINCTION BETWEEN ADVOCACY
AND THE INTERCHANGE OF IDEAS, AND WE DO NOT DISCARD A USEFUL TOOL
BECAUSE IT MAY BE MISUSED.  THAT SUCH A DISTINCTION COULD BE USED
UNREASONABLY BY THOSE IN POWER AGAINST HOSTILE OR UNORTHODOX VIEWS DOES
NOT NEGATE THE FACT THAT IT MAY BE USED REASONABLY AGAINST AN
ORGANIZATION WIELDING THE POWER OF THE CENTRALLY CONTROLLED
INTERNATIONAL COMMUNIST MOVEMENT.  THE OBJECT OF THE CONSPIRACY BEFORE
US IS SO CLEAR THAT THE CHANCE OF ERROR IN SAYING THAT THE DEFENDANTS
CONSPIRED TO ADVOCATE RATHER THAN TO EXPRESS IDEAS IS SLIGHT.  MR.
JUSTICE DOUGLAS QUITE PROPERLY POINTS OUT THAT THE CONSPIRACY BEFORE US
IS NOT A CONSPIRACY TO OVERTHROW THE GOVERNMENT.  BUT IT WOULD BE
EQUALLY WRONG TO TREAT IT AS A SEMINAR IN POLITICAL THEORY. 

            III. 

THESE GENERAL CONSIDERATIONS UNDERLIE DECISION OF THE CASE BEFORE
US. 

ON THE ONE HAND IS THE INTEREST IN SECURITY.  THE COMMUNIST PARTY WAS
NOT DESIGNED BY THESE DEFENDANTS AS AN ORDINARY POLITICAL PARTY.  FOR
THE CIRCUMSTANCES OF ITS ORGANIZATION, ITS AIMS AND METHODS, AND THE
RELATION OF THE DEFENDANTS TO ITS ORGANIZATION AND AIMS WE ARE
CONCLUDED BY THE JURY'S VERDICT.  THE JURY FOUND THAT THE PARTY REJECTS
THE BASIC PREMISE OF OUR POLITICAL SYSTEM - THAT CHANGE IS TO BE
BROUGHT ABOUT BY NONVIOLENT CONSTITUTIONAL PROCESS.  THE JURY FOUND
THAT THE PARTY ADVOCATES THE THEORY THAT THERE IS A DUTY AND NECESSITY
TO OVERTHROW THE GOVERNMENT BY FORCE AND VIOLENCE.  IT FOUND THAT THE
PARTY ENTERTAINS AND PROMOTES THIS VIEW, NOT AS A PROPHETIC INSIGHT OR
AS A BIT OF UNWORLDLY SPECULATION, BUT AS A PROGRAM FOR WINNING
ADHERENTS AND AS A POLICY TO BE TRANSLATED INTO ACTION. 

IN FINDING THAT THE DEFENDANTS VIOLATED THE STATUTE, WE MAY NOT TREAT
AS ESTABLISHED FACT THAT THE COMMUNIST PARTY IN THIS COUNTRY IS OF
SIGNIFICANT SIZE, WELL-ORGANIZED, WELL-DISCIPLINED, CONDITIONED TO
EMBARK ON UNLAWFUL ACTIVITY WHEN GIVEN THE COMMAND.  BUT IN DETERMINING
WHETHER APPLICATION OF THE STATUTE TO THE DEFENDANTS IS WITHIN THE
CONSTITUTIONAL POWERS OF CONGRESS, WE ARE NOT LIMITED TO THE FACTS
FOUND BY THE JURY.  WE MUST VIEW SUCH A QUESTION IN THE LIGHT OF
WHATEVER IS RELEVANT TO A LEGISLATIVE JUDGMENT.  WE MAY TAKE JUDICIAL
NOTICE THAT THE COMMUNIST DOCTRINES WHICH THESE DEFENDANTS HAVE
CONSPIRED TO ADVOCATE ARE IN THE ASCENDENCY IN POWERFUL NATIONS WHO
CANNOT BE ACQUITTED OF UNFRIENDLINESS TO THE INSTITUTIONS OF THIS
COUNTRY.  WE MAY TAKE ACCOUNT OF EVIDENCE BROUGHT FORWARD AT THIS TRIAL
AND ELSEWHERE, MUCH OF WHICH HAS LONG BEEN COMMON KNOWLEDGE.  IN SUM,
IT WOULD AMPLY JUSTIFY A LEGISLATURE IN CONCLUDING THAT RECRUITMENT OF
ADDITIONAL MEMBERS FOR THE PARTY WOULD CREATE A SUBSTANTIAL DANGER TO
NATIONAL SECURITY. 

IN 1947, IT HAS BEEN RELIABLY REPORTED, AT LEAST 60,000 MEMBERS WERE
ENROLLED IN THE PARTY.  FN11  EVIDENCE WAS INTRODUCED IN THIS CASE THAT
THE MEMBERSHIP WAS ORGANIZED IN SMALL UNITS, LINKED BY AN INTRICATE
CHAIN OF COMMAND, AND PROTECTED BY ELABORATE PRECAUTIONS DESIGNED TO
PREVENT DISCLOSURE OF INDIVIDUAL IDENTITY.  THERE ARE NO RELIABLE DATA
TRACING ACTS OF SABOTAGE OR ESPIONAGE DIRECTLY TO THESE DEFENDANTS. 
BUT A CANADIAN ROYAL COMMISSION APPOINTED IN 1946 TO INVESTIGATE
ESPIONAGE REPORTED THAT IT WAS "OVERWHELMINGLY ESTABLISHED" THAT "THE
COMMUNIST MOVEMENT WAS THE PRINCIPAL BASE WITHIN WHICH THE ESPIONAGE
NETWORK WAS RECRUITED."  FN12  THE MOST NOTORIOUS SPY IN RECENT HISTORY
WAS LED INTO THE SERVICE OF THE SOVIET UNION THROUGH COMMUNIST
INDOCTRINATION.  FN13  EVIDENCE SUPPORTS THE CONCLUSION THAT MEMBERS OF
THE PARTY SEEK AND OCCUPY POSITIONS OF IMPORTANCE IN POLITICAL AND
LABOR ORGANIZATIONS.  FN14  CONGRESS WAS NOT BARRED BY THE CONSTITUTION
FROM BELIEVING THAT INDIFFERENCE TO SUCH EXPERIENCE WOULD BE AN
EXERCISE NOT OF FREEDOM BUT OF IRRESPONSIBILITY. 

ON THE OTHER HAND IS THE INTEREST IN FREE SPEECH.  THE RIGHT TO EXERT
ALL GOVERNMENTAL POWERS IN AID OF MAINTAINING OUR INSTITUTIONS AND
RESISTING THEIR PHYSICAL OVERTHROW DOES NOT INCLUDE INTOLERANCE OF
OPINIONS AND SPEECH THAT CANNOT DO HARM ALTHOUGH OPPOSED AND PERHAPS
ALIEN TO DOMINANT, TRADITIONAL OPINION.  THE TREATMENT OF ITS
MINORITIES, ESPECIALLY THEIR LEGAL POSITION, IS AMONG THE MOST
SEARCHING TESTS OF THE LEVEL OF CIVILIZATION ATTAINED BY A SOCIETY.  IT
IS BETTER FOR THOSE WHO HAVE ALMOST UNLIMITED POWER OF GOVERNMENT IN
THEIR HANDS TO ERR ON THE SIDE OF FREEDOM.  WE HAVE ENJOYED SO MUCH
FREEDOM FOR SO LONG THAT WE ARE PERHAPS IN DANGER OF FORGETTING HOW
MUCH BLOOD IT COST TO ESTABLISH THE BILL OF RIGHTS.    OF COURSE NO
GOVERNMENT CAN RECOGNIZE A "RIGHT" OF REVOLUTION, OR A "RIGHT" TO
INCITE REVOLUTION IF THE INCITEMENT HAS NO OTHER PURPOSE OR EFFECT. 
BUT SPEECH IS SELDOM RESTRICTED TO A SINGLE PURPOSE, AND ITS EFFECTS
MAY BE MANIFOLD.  A PUBLIC INTEREST IS NOT WANTING IN GRANTING FREEDOM
TO SPEAK THEIR MINDS EVEN TO THOSE WHO ADVOCATE THE OVERTHROW OF THE
GOVERNMENT BY FORCE.  FOR, AS THE EVIDENCE IN THIS CASE ABUNDANTLY
ILLUSTRATES, COUPLED WITH SUCH ADVOCACY IS CRITICISM OF DEFECTS IN OUR
SOCIETY.  CRITICISM IS THE SPUR TO REFORM; AND BURKE'S ADMONITION THAT
A HEALTHY SOCIETY MUST REFORM IN ORDER TO CONSERVE HAS NOT LOST ITS
FORCE.  ASTUTE OBSERVERS HAVE REMARKED THAT ONE OF THE CHARACTERISTICS
OF THE AMERICAN REPUBLIC IS INDIFFERENCE TO FUNDAMENTAL CRITICISM. 
BRYCE, THE AMERICAN COMMONWEALTH, C. 84.  IT IS A COMMONPLACE THAT
THERE MAY BE A GRAIN OF TRUTH IN THE MOST UNCOUTH DOCTRINE, HOWEVER
FALSE AND REPELLENT THE BALANCE MAY BE. SUPPRESSING ADVOCATES OF
OVERTHROW INEVITABLY WILL ALSO SILENCE CRITICS WHO DO NOT ADVOCATE
OVERTHROW BUT FEAR THAT THEIR CRITICISM MAY BE SO CONSTRUED.  NO MATTER
HOW CLEAR WE MAY BE THAT THE DEFENDANTS NOW BEFORE US ARE PREPARING TO
OVERTHROW OUR GOVERNMENT AT THE PROPITIOUS MOMENT, IT IS SELF-DELUSION
TO THINK THAT WE CAN PUNISH THEM FOR THEIR ADVOCACY WITHOUT ADDING TO
THE RISKS RUN BY LOYAL CITIZENS WHO HONESTLY BELIEVE IN SOME OF THE
REFORMS THESE DEFENDANTS ADVANCE.  IT IS A SOBERING FACT THAT IN
SUSTAINING THE CONVICTIONS BEFORE US WE CAN HARDLY ESCAPE RESTRICTION
ON THE INTERCHANGE OF IDEAS. 

WE MUST NOT OVERLOOK THE VALUE OF THAT INTERCHANGE.  FREEDOM OF
EXPRESSION IS THE WELL-SPRING OF OUR CIVILIZATION - THE CIVILIZATION WE
SEEK TO MAINTAIN AND FURTHER BY RECOGNIZING THE RIGHT OF CONGRESS TO
PUT SOME LIMITATION UPON EXPRESSION.  SUCH ARE THE PARADOXES OF LIFE. 
FOR SOCIAL DEVELOPMENT OF TRIAL AND ERROR, THE FULLEST POSSIBLE
OPPORTUNITY FOR THE FREE PLAY OF THE HUMAN MIND IS AN INDISPENSABLE
PREREQUISITE.  THE HISTORY OF CIVILIZATION IS IN CONSIDERABLE MEASURE
THE DISPLACEMENT OF ERROR WHICH ONCE HELD SWAY AS OFFICIAL TRUTH BY
BELIEFS WHICH IN TURN HAVE YIELDED TO OTHER TRUTHS.  THEREFORE THE
LIBERTY OF MAN TO SEARCH FOR TRUTH OUGHT NOT TO BE FETTERED, NO MATTER
WHAT ORTHODOXIES HE MAY CHALLENGE.  LIBERTY OF THOUGHT SOON SHRIVELS
WITHOUT FREEDOM OF EXPRESSION.  NOR CAN TRUTH BE PURSUED IN AN
ATMOSPHERE HOSTILE TO THE ENDEAVOR OR UNDER DANGERS WHICH ARE HAZARDED
ONLY BY HEROES. 

"THE INTEREST, WHICH (THE FIRST AMENDMENT) GUARDS, AND WHICH GIVES IT
ITS IMPORTANCE, PRESUPPOSES THAT THERE ARE NO ORTHODOXIES - RELIGIOUS,
POLITICAL, ECONOMIC, OR SCIENTIFIC - WHICH ARE IMMUNE FROM DEBATE AND
DISPUTE.  BACK OF THAT IS THE ASSUMPTION - ITSELF AN ORTHODOXY, AND THE
ONE PERMISSIBLE EXCEPTION - THAT TRUTH WILL BE MOST LIKELY TO EMERGE,
IF NO LIMITATIONS ARE IMPOSED UPON UTTERANCES THAT CAN WITH ANY
PLAUSIBILITY BE REGARDED AS EFFORTS TO PRESENT GROUNDS FOR ACCEPTING OR
REJECTING PROPOSITIONS WHOSE TRUTH THE UTTERER ASSERTS, OR DENIES." 
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS V. LABOR BOARD, 181
F.2D 34, 40.  IN THE LAST ANALYSIS IT IS ON THE VALIDITY OF THIS FAITH
THAT OUR NATIONAL SECURITY IS STAKED. 

IT IS NOT FOR US TO DECIDE HOW WE WOULD ADJUST THE CLASH OF INTERESTS
WHICH THIS CASE PRESENTS WERE THE PRIMARY RESPONSIBILITY FOR
RECONCILING IT OURS.  CONGRESS HAS DETERMINED THAT THE DANGER CREATED
BY ADVOCACY OF OVERTHROW JUSTIFIES THE ENSUING RESTRICTION ON FREEDOM
OF SPEECH.  THE DETERMINATION WAS MADE AFTER DUE DELIBERATION, AND THE
SERIOUSNESS OF THE CONGRESSIONAL PURPOSE IS ATTESTED BY THE VOLUME OF
LEGISLATION PASSED TO EFFECTUATE THE SAME ENDS.  FN15 

CAN WE THEN SAY THAT THE JUDGMENT CONGRESS EXERCISED WAS DENIED IT BY
THE CONSTITUTION?  CAN WE ESTABLISH A CONSTITUTIONAL DOCTRINE WHICH
FORBIDS THE ELECTED REPRESENTATIVES OF THE PEOPLE TO MAKE THIS CHOICE? 
CAN WE HOLD THAT THE FIRST AMENDMENT DEPRIVES CONGRESS OF WHAT IT
DEEMED NECESSARY FOR THE GOVERNMENT'S PROTECTION? 

TO MAKE VALIDITY OF LEGISLATION DEPEND ON JUDICIAL READING OF EVENTS
STILL IN THE WOMB OF TIME - A FORECAST, THAT IS, OF THE OUTCOME OF
FORCES AT BEST APPRECIATED ONLY WITH KNOWLEDGE OF THE TOPMOST SECRETS
OF NATIONS - IS TO CHARGE THE JUDICIARY WITH DUTIES BEYOND ITS
EQUIPMENT.  WE DO NOT EXPECT COURTS TO PRONOUNCE HISTORIC VERDICTS ON
BYGONE EVENTS.  EVEN HISTORIANS HAVE CONFLICTING VIEWS TO THIS DAY ON
THE ORIGINS AND CONDUCT OF THE FRENCH REVOLUTION, OR, FOR THAT MATTER,
VARYING INTERPRETATIONS OF "THE GLORIOUS REVOLUTION" OF 1688.  IT IS AS
ABSURD TO BE CONFIDENT THAT WE CAN MEASURE THE PRESENT CLASH OF FORCES
AND THEIR OUTCOME AS TO ASK US TO READ HISTORY STILL ENVELOPED IN
CLOUDS OF CONTROVERSY. 

IN THE LIGHT OF THEIR EXPERIENCE, THE FRAMERS OF THE CONSTITUTION
CHOSE TO KEEP THE JUDICIARY DISSOCIATED FROM DIRECT PARTICIPATION IN
THE LEGISLATIVE PROCESS.  IN ASSERTING THE POWER TO PASS ON THE
CONSTITUTIONALITY OF LEGISLATION, MARSHALL AND HIS COURT EXPRESSED THE
PURPOSES OF THE FOUNDERS.  SEE CHARLES A. BEARD, THE SUPREME COURT AND
THE CONSTITUTION.  BUT THE EXTENT TO WHICH THE EXERCISE OF THIS POWER
WOULD INTERPENETRATE MATTERS OF POLICY COULD HARDLY HAVE BEEN FORESEEN
BY THE MOST PRESCIENT.  THE DISTINCTION WHICH THE FOUNDERS DREW BETWEEN
THE COURT'S DUTY TO PASS ON THE POWER OF CONGRESS AND ITS COMPLEMENTARY
DUTY NOT TO ENTER DIRECTLY THE DOMAIN OF POLICY IS FUNDAMENTAL.  BUT IN
ITS ACTUAL OPERATION IT IS RATHER SUBTLE, CERTAINLY TO THE COMMON
UNDERSTANDING.  OUR DUTY TO ABSTAIN FROM CONFOUNDING POLICY WITH
CONSTITUTIONALITY DEMANDS PERCEPTIVE HUMILITY AS WELL AS SELF-RESTRAINT
IN NOT DECLARING UNCONSTITUTIONAL WHAT IN A JUDGE'S PRIVATE JUDGMENT IS
DEEMED UNWISE AND EVEN DANGEROUS. 

EVEN WHEN MOVING STRICTLY WITHIN THE LIMITS OF CONSTITUTIONAL
ADJUDICATION, JUDGES ARE CONCERNED WITH ISSUES THAT MAY BE SAID TO
INVOLVE VITAL FINALITIES.  THE TOO EASY TRANSITION FROM DISAPPROVAL OF
WHAT IS UNDESIRABLE TO CONDEMNATION AS UNCONSTITUTIONAL, HAS LED SOME
OF THE WISEST JUDGES TO QUESTION THE WISDOM OF OUR SCHEME IN LODGING
SUCH AUTHORITY IN COURTS.  BUT IT IS RELEVANT TO REMIND THAT IN
SUSTAINING THE POWER OF CONGRESS IN A CASE LIKE THIS NOTHING
IRREVOCABLE IS DONE.  THE DEMOCRATIC PROCESS AT ALL EVENTS IS NOT
IMPAIRED OR RESTRICTED.  POWER AND RESPONSIBILITY REMAIN WITH THE
PEOPLE AND IMMEDIATELY WITH THEIR REPRESENTATIVES.  ALL THE COURT SAYS
IS THAT CONGRESS WAS NOT FORBIDDEN BY THE CONSTITUTION TO PASS THIS
ENACTMENT AND THAT A PROSECUTION UNDER IT MAY BE BROUGHT AGAINST A
CONSPIRACY SUCH AS THE ONE BEFORE US.

                                 IV. 

THE WISDOM OF THE ASSUMPTIONS UNDERLYING THE LEGISLATION AND
PROSECUTION IS ANOTHER MATTER.  IN FINDING THAT CONGRESS HAS ACTED
WITHIN ITS POWER, A JUDGE DOES NOT REMOTELY IMPLY THAT HE FAVORS THE
IMPLICATIONS THAT LIE BENEATH THE LEGAL ISSUES.  CONSIDERATIONS THERE
ENTER WHICH GO BEYOND THE CRITERIA THAT ARE BINDING UPON JUDGES WITHIN
THE NARROW CONFINES OF THEIR LEGITIMATE AUTHORITY.  THE LEGISLATION WE
ARE HERE CONSIDERING IS BUT A TRUNCATED ASPECT OF A DEEPER ISSUE.  FOR
ME IT HAS BEEN MOST ILLUMINATINGLY EXPRESSED BY ONE IN WHOM
RESPONSIBILITY AND EXPERIENCE HAVE FRUCTIFIED NATIVE INSIGHT, THE
DIRECTOR-GENERAL OF THE BRITISH BROADCASTING CORPORATION: 

"WE HAVE TO FACE UP TO THE FACT THAT THERE ARE POWERFUL FORCES IN THE
WORLD TODAY MISUSING THE PRIVILEGES OF LIBERTY IN ORDER TO DESTROY
HER.  THE QUESTION MUST BE ASKED, HOWEVER, WHETHER SUPPRESSION OF
INFORMATION OR OPINION IS THE TRUE DEFENSE.  WE MAY HAVE COME A LONG
WAY FROM MILL'S FAMOUS DICTUM THAT: 

"'IF ALL MANKIND MINUS ONE WERE OF ONE OPINION, AND ONLY ONE PERSON
WERE OF THE CONTRARY OPINION, MANKIND WOULD BE NO MORE JUSTIFIED IN
SILENCING THAT ONE PERSON, THAN HE, IF HE HAD THE POWER, WOULD BE
JUSTIFIED IN SILENCING MANKIND,' 

BUT MILL'S REMINDERS FROM HISTORY AS TO WHAT HAS HAPPENED WHEN
SUPPRESSION WAS MOST VIRULENTLY EXERCISED OUGHT TO WARN US THAT NO
DEBATE IS EVER PERMANENTLY WON BY SHUTTING ONE'S EARS OR BY EVEN THE
MOST DRACONIAN POLICY OF SILENCING OPPONENTS.  THE DEBATE MUST BE WON. 
AND IT MUST BE WON WITH FULL INFORMATION.  WHERE THERE ARE LIES, THEY
MUST BE SHOWN FOR WHAT THEY ARE.  WHERE THERE ARE ERRORS, THEY MUST BE
REFUTED.  IT WOULD BE A MAJOR DEFEAT IF THE ENEMIES OF DEMOCRACY FORCED
US TO ABANDON OUR FAITH IN THE POWER OF INFORMED DISCUSSION AND SO
BROUGHT US DOWN TO THEIR OWN LEVEL.  MANKIND IS SO CONSTITUTED,
MOREOVER, THAT IF, WHERE EXPRESSION AND DISCUSSION ARE CONCERNED, THE
ENEMIES OF LIBERTY ARE MET WITH A DENIAL OF LIBERTY, MANY MEN OF
GOODWILL WILL COME TO SUSPECT THERE IS SOMETHING IN THE PROSCRIBED
DOCTRINE AFTER ALL.  ERRONEOUS DOCTRINES THRIVE ON BEING EXPUNGED. 
THEY DIE IF EXPOSED."  SIR WILLIAM HALEY, WHAT STANDARDS FOR
BROADCASTING?  MEASURE, VOL. I, NO. 3, SUMMER 1950, PP. 211-212. 

IN THE CONTEXT OF THIS DEEPER STRUGGLE, ANOTHER VOICE HAS INDICATED
THE LIMITATIONS OF WHAT WE DECIDE TODAY.  NO ONE IS BETTER EQUIPPED
THAN GEORGE F. KENNAN TO SPEAK ON THE MEANING OF THE MENACE OF
COMMUNISM AND THE SPIRIT IN WHICH WE SHOULD MEET IT. 

"IF OUR HANDLING OF THE PROBLEM OF COMMUNIST INFLUENCE IN OUR MIDST
IS NOT CAREFULLY MODERATED - IF WE PERMIT IT, THAT IS, TO BECOME AN
EMOTIONAL PREOCCUPATION AND TO BLIND US TO THE MORE IMPORTANT POSITIVE
TASKS BEFORE US - WE CAN DO A DAMAGE TO OUR NATIONAL PURPOSE BEYOND
COMPARISON GREATER THAN ANYTHING THAT THREATENS US TODAY FROM THE
COMMUNIST SIDE.  THE AMERICAN COMMUNIST PARTY IS TODAY, BY AND LARGE,
AN EXTERNAL DANGER.  IT REPRESENTS A TINY MINORITY IN OUR COUNTRY; IT
HAS NO REAL CONTACT WITH THE FEELINGS OF THE MASS OF OUR PEOPLE; AND
ITS POSITION AS THE AGENCY OF A HOSTILE FOREIGN POWER IS CLEARLY
RECOGNIZED BY THE OVERWHELMING MASS OF OUR CITIZENS. 

"BUT THE SUBJECTIVE EMOTIONAL STRESSES AND TEMPTATIONS TO WHICH WE
ARE EXPOSED IN OUR ATTEMPT TO DEAL WITH THIS DOMESTIC PROBLEM ARE NOT
AN EXTERNAL DANGER:  THEY REPRESENT A DANGER WITHIN OURSELVES - A
DANGER THAT SOMETHING MAY OCCUR IN OUR OWN MINDS AND SOULS WHICH WILL
MAKE US NO LONGER LIKE THE PERSONS BY WHOSE EFFORTS THIS REPUBLIC WAS
FOUNDED AND HELD TOGETHER, BUT RATHER LIKE THE REPRESENTATIVES OF THAT
VERY POWER WE ARE TRYING TO COMBAT:  INTOLERANT, SECRETIVE, SUSPICIOUS,
CRUEL, AND TERRIFIED OF INTERNAL DISSENSION BECAUSE WE HAVE LOST OUR
OWN BELIEF IN OURSELVES AND IN THE POWER OF OUR IDEALS.  THE WORST
THING THAT OUR COMMUNISTS COULD DO TO US, AND THE THING WE HAVE MOST TO
FEAR FROM THEIR ACTIVITIES, IS THAT WE SHOULD BECOME LIKE THEM. 

"THAT OUR COUNTRY IS BESET WITH EXTERNAL DANGERS I READILY CONCEDE. 
BUT THESE DANGERS, AT THEIR WORST, ARE ONES OF PHYSICAL DESTRUCTION, OF
THE DISRUPTION OF OUR WORLD SECURITY, OF EXPENSE AND INCONVENIENCE AND
SACRIFICE.  THESE ARE SERIOUS, AND SOMETIMES TERRIBLE THINGS, BUT THEY
ARE ALL THINGS THAT WE CAN TAKE AND STILL REMAIN AMERICANS. 

"THE INTERNAL DANGER IS OF A DIFFERENT ORDER.  AMERICA IS NOT JUST
TERRITORY AND PEOPLE.  THERE IS LOTS OF TERRITORY ELSEWHERE, AND THERE
ARE LOTS OF PEOPLE; BUT IT DOES NOT ADD UP TO AMERICA.  AMERICA IS
SOMETHING IN OUR MINDS AND OUR HABITS OF OUTLOOK WHICH CAUSES US TO
BELIEVE IN CERTAIN THINGS AND TO BEHAVE IN CERTAIN WAYS, AND BY WHICH,
IN ITS TOTALITY, WE HOLD OURSELVES DISTINGUISHED FROM OTHERS.  IF THAT
ONCE GOES THERE WILL BE NO AMERICA TO DEFEND.  AND THAT CAN GO TOO
EASILY IF WE YIELD TO THE PRIMITIVE HUMAN INSTINCT TO ESCAPE FROM OUR
FRUSTRATIONS INTO THE REALMS OF MASS EMOTION AND HATRED AND TO FIND
SCAPEGOATS FOR OUR DIFFICULTIES IN INDIVIDUAL FELLOW-CITIZENS WHO ARE,
OR HAVE AT ONE TIME BEEN, DISORIENTED OR CONFUSED."  GEORGE F. KENNAN,
WHERE DO YOU STAND ON COMMUNISM?  NEW YORK TIMES MAGAZINE, MAY 27,
1951, PP. 7, 53, 55. 

CIVIL LIBERTIES DRAW AT BEST ONLY LIMITED STRENGTH FROM LEGAL
GUARANTIES.  PREOCCUPATION BY OUR PEOPLE WITH THE CONSTITUTIONALITY,
INSTEAD OF WITH THE WISDOM, OF LEGISLATION OR OF EXECUTIVE ACTION IS
PREOCCUPATION WITH A FALSE VALUE.  EVEN THOSE WHO WOULD MOST FREELY USE
THE JUDICIAL BRAKE ON THE DEMOCRATIC PROCESS BY INVALIDATING
LEGISLATION THAT GOES DEEPLY AGAINST THEIR GRAIN, ACKNOWLEDGE, AT LEAST
BY PAYING LIP SERVICE, THAT CONSTITUTIONALITY DOES NOT EXACT A SENSE OF
PROPORTION OR THE SANITY OF HUMOR OR AN ABSENCE OF FEAR.  FOCUSING
ATTENTION ON CONSTITUTIONALITY TENDS TO MAKE CONSTITUTIONALITY
SYNONYMOUS WITH WISDOM.  WHEN LEGISLATION TOUCHES FREEDOM OF THOUGHT
AND FREEDOM OF SPEECH, SUCH A TENDENCY IS A FORMIDABLE ENEMY OF THE
FREE SPIRIT.  MUCH THAT SHOULD BE REJECTED AS ILLIBERAL, BECAUSE
REPRESSIVE AND ENVENOMING, MAY WELL BE NOT UNCONSTITUTIONAL.  THE
ULTIMATE RELIANCE FOR THE DEEPEST NEEDS OF CIVILIZATION MUST BE FOUND
OUTSIDE THEIR VINDICATION IN COURTS OF LAW; APART FROM ALL ELSE,
JUDGES, HOWSOEVER THEY MAY CONSCIENTIOUSLY SEEK TO DISCIPLINE
THEMSELVES AGAINST IT, UNCONSCIOUSLY ARE TOO APT TO BE MOVED BY THE
DEEP UNDERCURRENTS OF PUBLIC FEELING.  A PERSISTENT, POSITIVE
TRANSLATION OF THE LIBERATING FAITH INTO THE FEELINGS AND THOUGHTS AND
ACTIONS OF MEN AND WOMEN IS THE REAL PROTECTION AGAINST ATTEMPTS TO
STRAIT-JACKET THE HUMAN MIND.  SUCH TEMPTATIONS WILL HAVE THEIR WAY, IF
FEAR AND HATRED ARE NOT EXORCIZED.  THE MARK OF A TRULY CIVILIZED MAN
IS CONFIDENCE IN THE STRENGTH AND SECURITY DERIVED FROM THE INQUIRING
MIND.  WE MAY BE GRATEFUL FOR SUCH HONEST COMFORTS AS IT SUPPORTS, BUT
WE MUST BE UNAFRAID OF ITS INCERTITUDES.  WITHOUT OPEN MINDS THERE CAN
BE NO OPEN SOCIETY.  AND IF SOCIETY BE NOT OPEN THE SPIRIT OF MAN IS
MUTILATED AND BECOMES ENSLAVED.                 APPENDIX TO OPINION OF
MR. JUSTICE FRANKFURTER. 

OPINIONS RESPONSIBLE FOR THE VIEW THAT SPEECH COULD NOT
CONSTITUTIONALLY BE RESTRICTED UNLESS THERE WOULD RESULT FROM IT AN
IMMINENT - I.E., CLOSE AT HAND - SUBSTANTIVE EVIL. 

1.  THORNHILL V. ALABAMA, 310 U.S. 88, 104-105(STATE STATUTE
PROHIBITING PICKETING HELD INVALID):  "  ...  EVERY EXPRESSION OF
OPINION ON MATTERS THAT ARE IMPORTANT HAS THE POTENTIALITY OF INDUCING
ACTION IN THE INTERESTS OF ONE RATHER THAN ANOTHER GROUP IN SOCIETY. 
BUT THE GROUP IN POWER AT ANY MOMENT MAY NOT IMPOSE PENAL SANCTIONS ON
PEACEFUL AND TRUTHFUL DISCUSSION OF MATTERS OF PUBLIC INTEREST MERELY
ON A SHOWING THAT OTHERS MAY THEREBY BE PERSUADED TO TAKE ACTION
INCONSISTENT WITH ITS INTERESTS.  ABRIDGMENT OF THE LIBERTY OF SUCH
DISCUSSION CAN BE JUSTIFIED ONLY WHERE THE CLEAR DANGER OF SUBSTANTIVE
EVILS ARISES UNDER CIRCUMSTANCES AFFORDING NO OPPORTUNITY TO TEST THE
MERITS OF IDEAS BY COMPETITION FOR ACCEPTANCE IN THE MARKET OF PUBLIC
OPINION.  ... 

"  ...  (NO) CLEAR AND PRESENT DANGER OF DESTRUCTION OF LIFE OR
PROPERTY, OR INVASION OF THE RIGHT OF PRIVACY, OR BREACH OF THE PEACE
CAN BE THOUGHT TO BE INHERENT IN THE ACTIVITIES OF EVERY PERSON WHO
APPROACHES THE PREMISES OF AN EMPLOYER AND PUBLICIZES THE FACTS OF A
LABOR DISPUTE INVOLVING THE LATTER." 

2.  BRIDGES V. CALIFORNIA, 314 U.S. 252, 262-263(CONVICTIONS FOR
CONTEMPT OF COURT REVERSED):  " ...  (THE) 'CLEAR AND PRESENT DANGER'
LANGUAGE OF THE SCHENCK CASE HAS AFFORDED PRACTICAL GUIDANCE IN A GREAT
VARIETY OF CASES IN WHICH THE SCOPE OF CONSTITUTIONAL PROTECTIONS OF
FREEDOM OF EXPRESSION WAS IN ISSUE.  IT HAS BEEN UTILIZED BY EITHER A
MAJORITY OR MINORITY OF THIS COURT IN PASSING UPON THE
CONSTITUTIONALITY OF CONVICTIONS UNDER ESPIONAGE ACTS, SCHENCK V.
UNITED STATES, SUPRA (249 U.S. 47); ABRAMS V. UNITED STATES, 250 U.S.
616; UNDER A CRIMINAL SYNDICALISM ACT, WHITNEY V. CALIFORNIA, SUPRA
(274 U.S. 357); UNDER AN 'ANTI-INSURRECTION' ACT, HERNDON V. LOWRY,
SUPRA (301 U.S. 242); AND FOR BREACH OF THE PEACE AT COMMON LAW,
CANTWELL V. CONNECTICUT, SUPRA (310 U.S. 296).  AND VERY RECENTLY WE
HAVE ALSO SUGGESTED THAT 'CLEAR AND PRESENT DANGER' IS AN APPROPRIATE
GUIDE IN DETERMINING THE CONSTITUTIONALITY OF RESTRICTIONS UPON
EXPRESSION WHERE THE SUBSTANTIVE EVIL SOUGHT TO BE PREVENTED BY THE
RESTRICTION IS 'DESTRUCTION OF LIFE OR PROPERTY, OR INVASION OF THE
RIGHT OF PRIVACY.'  THORNHILL V. ALABAMA, 310 U.S. 88, 105. 

     .         .         .         .         . 

"WHAT FINALLY EMERGES FROM THE 'CLEAR AND PRESENT DANGER' CASES IS A
WORKING PRINCIPLE THAT THE SUBSTANTIVE EVIL MUST BE EXTREMELY SERIOUS
AND THE DEGREE OF IMMINENCE EXTREMELY HIGH BEFORE UTTERANCES CAN BE
PUNISHED.  THOSE CASES DO NOT PURPORT TO MARK THE FURTHERMOST
CONSTITUTIONAL BOUNDARIES OF PROTECTED EXPRESSION, NOR DO WE HERE. 
THEY DO NO MORE THAN RECOGNIZE A MINIMUM COMPULSION OF THE BILL OF
RIGHTS.  FOR THE FIRST AMENDMENT DOES NOT SPEAK EQUIVOCALLY.  IT
PROHIBITS ANY LAW 'ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS.' 
IT MUST BE TAKEN AS A COMMAND OF THE BROADEST SCOPE THAT EXPLICIT
LANGUAGE, READ IN THE CONTEXT OF A LIBERTY-LOVING SOCIETY, WILL
ALLOW." 

3.  WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624,
639(FLAG-SALUTE REQUIREMENT FOR SCHOOL CHILDREN HELD INVALID):  "IN
WEIGHING ARGUMENTS OF THE PARTIES IT IS IMPORTANT TO DISTINGUISH
BETWEEN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AS AN
INSTRUMENT FOR TRANSMITTING THE PRINCIPLES OF THE FIRST AMENDMENT AND
THOSE CASES IN WHICH IT IS APPLIED FOR ITS OWN SAKE.  THE TEST OF
LEGISLATION WHICH COLLIDES WITH THE FOURTEENTH AMENDMENT, BECAUSE IT
ALSO COLLIDES WITH THE PRINCIPLES OF THE FIRST, IS MUCH MORE DEFINITE
THAN THE TEST WHEN ONLY THE FOURTEENTH IS INVOLVED.  MUCH OF THE
VAGUENESS OF THE DUE PROCESS CLAUSE DISAPPEARS WHEN THE SPECIFIC
PROHIBITIONS OF THE FIRST BECOME ITS STANDARD.  THE RIGHT OF A STATE TO
REGULATE, FOR EXAMPLE, A PUBLIC UTILITY MAY WELL INCLUDE, SO FAR AS THE
DUE PROCESS TEST IS CONCERNED, POWER TO IMPOSE ALL OF THE RESTRICTIONS
WHICH A LEGISLATURE MAY HAVE A 'RATIONAL BASIS' FOR ADOPTING.  BUT
FREEDOMS OF SPEECH AND OF PRESS, OF ASSEMBLY, AND OF WORSHIP MAY NOT BE
INFRINGED ON SUCH SLENDER GROUNDS.  THEY ARE SUSCEPTIBLE OF RESTRICTION
ONLY TO PREVENT GRAVE AND IMMEDIATE DANGER TO INTERESTS WHICH THE STATE
MAY LAWFULLY PROTECT.  IT IS IMPORTANT TO NOTE THAT WHILE IT IS THE
FOURTEENTH AMENDMENT WHICH BEARS DIRECTLY UPON THE STATE IT IS THE MORE
SPECIFIC LIMITING PRINCIPLES OF THE FIRST AMENDMENT THAT FINALLY GOVERN
THIS CASE." 

4.  THOMAS V. COLLINS, 323 U.S. 516, 529-530(STATE STATUTE REQUIRING
REGISTRATION OF LABOR ORGANIZERS HELD INVALID AS APPLIED):  "THE CASE
CONFRONTS US AGAIN WITH THE DUTY OUR SYSTEM PLACES ON THIS COURT TO SAY
WHERE THE INDIVIDUAL'S FREEDOM ENDS AND THE STATE'S POWER BEGINS. 
CHOICE ON THAT BORDER, NOW AS ALWAYS DELICATE, IS PERHAPS MORE SO WHERE
THE USUAL PRESUMPTION SUPPORTING LEGISLATION IS BALANCED BY THE
PREFERRED PLACE GIVEN IN OUR SCHEME TO THE GREAT, THE INDISPENSABLE
DEMOCRATIC FREEDOMS SECURED BY THE FIRST AMENDMENT.  CF. SCHNEIDER V.
STATE, 308 U.S. 147; CANTWELL V. CONNECTICUT, 310 U.S. 296; PRINCE V.
MASSACHUSETTS, 321 U.S. 158.  THAT PRIORITY GIVES THESE LIBERTIES A
SANCTITY AND A SANCTION NOT PERMITTING DUBIOUS INTRUSIONS.  AND IT IS
THE CHARACTER OF THE RIGHT, NOT OF THE LIMITATION, WHICH DETERMINES
WHAT STANDARD GOVERNS THE CHOICE.  COMPARE UNITED STATES V. CAROLENE
PRODUCTS CO., 304 U.S. 144, 152-153. 

"FOR THESE REASONS ANY ATTEMPT TO RESTRICT THOSE LIBERTIES MUST BE
JUSTIFIED BY CLEAR PUBLIC INTEREST, THREATENED NOT DOUBTFULLY OR
REMOTELY, BUT BY CLEAR AND PRESENT DANGER.  THE RATIONAL CONNECTION
BETWEEN THE REMEDY PROVIDED AND THE EVIL TO BE CURBED, WHICH IN OTHER
CONTEXTS MIGHT SUPPORT LEGISLATION AGAINST ATTACK ON DUE PROCESS
GROUNDS, WILL NOT SUFFICE.  THESE RIGHTS REST ON FIRMER FOUNDATION. 
ACCORDINGLY, WHATEVER OCCASION WOULD RESTRAIN ORDERLY DISCUSSION AND
PERSUASION, AT APPROPRIATE TIME AND PLACE, MUST HAVE CLEAR SUPPORT IN
PUBLIC DANGER, ACTUAL OR IMPENDING.  ONLY THE GRAVEST ABUSES,
ENDANGERING PARAMOUNT INTERESTS, GIVE OCCASION FOR PERMISSIBLE
LIMITATION." 

5.  CRAIG V. HARNEY, 331 U.S. 367, 376(CONVICTION FOR CONTEMPT OF
COURT REVERSED):  "THE FIRES WHICH (THE LANGUAGE) KINDLES MUST
CONSTITUTE AN IMMINENT, NOT MERELY A LIKELY, THREAT TO THE
ADMINISTRATION OF JUSTICE.  THE DANGER MUST NOT BE REMOTE OR EVEN
PROBABLE; IT MUST IMMEDIATELY IMPERIL." 

6.  GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490, 503(INJUNCTION
AGAINST PICKETING UPHELD):  " ...  THERE WAS CLEAR DANGER, IMMINENT AND
IMMEDIATE, THAT UNLESS RESTRAINED, APPELLANTS WOULD SUCCEED IN MAKING
(THE STATE'S POLICY AGAINST RESTRAINTS OF TRADE) A DEAD LETTER INSOFAR
AS PURCHASES BY NONUNION MEN WERE CONCERNED.  ...  " 

7.  TERMINIELLO V. CHICAGO, 337 U.S. 1, 4-5(CONVICTION FOR DISORDERLY
CONDUCT REVERSED): "SPEECH IS OFTEN PROVOCATIVE AND CHALLENGING.  IT
MAY STRIKE AT PREJUDICES AND PRECONCEPTIONS AND HAVE PROFOUND
UNSETTLING EFFECTS AS IT PRESSES FOR ACCEPTANCE OF AN IDEA.  THAT IS
WHY FREEDOM OF SPEECH, THOUGH NOT ABSOLUTE, CHAPLINSKY V. NEW
HAMPSHIRE, SUPRA, (315 U.S. 568) 571-572, IS NEVERTHELESS PROTECTED
AGAINST CENSORSHIP OR PUNISHMENT, UNLESS SHOWN LIKELY TO PRODUCE A
CLEAR AND PRESENT DANGER OF A SERIOUS SUBSTANTIVE EVIL THAT RISES FAR
ABOVE PUBLIC INCONVENIENCE, ANNOYANCE, OR UNREST.  SEE BRIDGES V.
CALIFORNIA, 314 U.S. 252, 262; CRAIG V. HARNEY, 331 U.S. 367, 373. 
THERE IS NO ROOM UNDER OUR CONSTITUTION FOR A MORE RESTRICTIVE VIEW. 
FOR THE ALTERNATIVE WOULD LEAD TO STANDARDIZATION OF IDEAS EITHER BY
LEGISLATURES, COURTS, OR DOMINANT POLITICAL OR COMMUNITY GROUPS." 

8.  AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 396,
412("NON-COMMUNIST AFFIDAVIT" PROVISION OF TAFT-HARTLEY ACT UPHELD):
"SPEECH MAY BE FOUGHT WITH SPEECH.  FALSEHOODS AND FALLACIES MUST BE
EXPOSED, NOT SUPPRESSED, UNLESS THERE IS NOT SUFFICIENT TIME TO AVERT
THE EVIL CONSEQUENCES OF NOXIOUS DOCTRINE BY ARGUMENT AND EDUCATION. 
THAT IS THE COMMAND OF THE FIRST AMENDMENT."  AND AGAIN, "(THE FIRST)
AMENDMENT REQUIRES THAT ONE BE PERMITTED TO BELIEVE WHAT HE WILL.  IT
REQUIRES THAT ONE BE PERMITTED TO ADVOCATE WHAT HE WILL UNLESS THERE IS
A CLEAR AND PRESENT DANGER THAT A SUBSTANTIAL PUBLIC EVIL WILL RESULT
THEREFROM." 

FN1  MASS. CONST., 1780, PART I, ART. XVI.  SEE DUNIWAY, FREEDOM OF
THE PRESS IN MASSACHUSETTS, 144-146. 

FN2  PA. CONST., 1790, ART. IX, SEC. 7; DEL. CONST., 1792, ART. I,
SEC. 5. 

FN3  THE GENERAL ASSEMBLY OF VIRGINIA PASSED A STATUTE ON DECEMBER
26, 1792, DIRECTED AT ESTABLISHMENT OF "ANY GOVERNMENT SEPARATE FROM,
OR INDEPENDENT OF THE GOVERNMENT OF VIRGINIA, WITHIN THE LIMITS
THEREOF, UNLESS BY ACT OF THE LEGISLATURE OF THIS COMMONWEALTH FOR THAT
PURPOSE FIRST OBTAINED."  THE STATUTE PROVIDED THAT "EVERY PERSON  ...
WHO SHALL BY WRITING OR ADVISED SPEAKING, ENDEAVOUR TO INSTIGATE THE
PEOPLE OF THIS COMMONWEALTH TO ERECT OR ESTABLISH SUCH GOVERNMENT
WITHOUT SUCH ASSENT AS AFORESAID, SHALL BE ADJUDGED GUILTY OF A HIGH
CRIME AND MISDEMEANOR  ...  "  VA. CODE, 1803, C. CXXXVI. 

FN4  IN A LETTER TO ABIGAIL ADAMS, DATED SEPTEMBER 11, 1804,
JEFFERSON SAID WITH REFERENCE TO THE SEDITION ACT: 

"NOR DOES THE OPINION OF THE UNCONSTITUTIONALITY AND CONSEQUENT
NULLITY OF THAT LAW REMOVE ALL RESTRAINT FROM THE OVERWHELMING TORRENT
OF SLANDER WHICH IS CONFOUNDING ALL VICE AND VIRTUE, ALL TRUTH AND
FALSEHOOD IN THE US.  THE POWER TO DO THAT IS FULLY POSSESSED BY THE
SEVERAL STATE LEGISLATURES.  IT WAS RESERVED TO THEM, AND WAS DENIED TO
THE GENERAL GOVERNMENT, BY THE CONSTITUTION ACCORDING TO OUR
CONSTRUCTION OF IT.  WHILE WE DENY THAT CONGRESS HAVE A RIGHT TO
CONTROUL THE FREEDOM OF THE PRESS, WE HAVE EVER ASSERTED THE RIGHT OF
THE STATES, AND THEIR EXCLUSIVE RIGHT, TO DO SO." 

THE LETTER WILL BE PUBLISHED IN A FORTHCOMING VOLUME OF THE PAPERS OF
THOMAS JEFFERSON (BOYD ED.), TO WHICH I AM INDEBTED FOR ITS
REPRODUCTION HERE IN ITS EXACT FORM. 

THE SEDITION ACT OF JULY 14, 1798, WAS DIRECTED AT TWO TYPES OF
CONDUCT.  SECTION 1 MADE IT A CRIMINAL OFFENSE TO CONSPIRE "TO IMPEDE
THE OPERATION OF ANY LAW OF THE UNITED STATES," AND TO "COUNSEL, ADVISE
OR ATTEMPT TO PROCURE ANY INSURRECTION, RIOT, UNLAWFUL ASSEMBLY, OR
COMBINATION."  SECTION 2 PROVIDED: 

"THAT IF ANY PERSON SHALL WRITE, PRINT, UTTER OR PUBLISH, OR SHALL
CAUSE OR PROCURE TO BE WRITTEN, PRINTED, UTTERED OR PUBLISHED, OR SHALL
KNOWINGLY AND WILLINGLY ASSIST OR AID IN WRITING, PRINTING, UTTERING OR
PUBLISHING ANY FALSE, SCANDALOUS AND MALICIOUS WRITING OR WRITINGS
AGAINST THE GOVERNMENT OF THE UNITED STATES, OR EITHER HOUSE OF THE
CONGRESS OF THE UNITED STATES, OR THE PRESIDENT OF THE UNITED STATES,
WITH INTENT TO DEFAME THE SAID GOVERNMENT, OR EITHER HOUSE OF THE SAID
CONGRESS, OR THE SAID PRESIDENT, OR TO BRING THEM, OR EITHER OF THEM,
INTO CONTEMPT OR DISREPUTE; OR TO EXCITE AGAINST THEM, OR EITHER OR ANY
OF THEM, THE HATRED OF THE GOOD PEOPLE OF THE UNITED STATES, OR TO STIR
UP SEDITION WITHIN THE UNITED STATES, OR TO EXCITE ANY UNLAWFUL
COMBINATIONS THEREIN, FOR OPPOSING OR RESISTING ANY LAW OF THE UNITED
STATES, OR ANY ACT OF THE PRESIDENT OF THE UNITED STATES, DONE IN
PURSUANCE OF ANY SUCH LAW, OR OF THE POWERS IN HIM VESTED BY THE
CONSTITUTION OF THE UNITED STATES, OR TO RESIST, OPPOSE, OR DEFEAT ANY
SUCH LAW OR ACT, OR TO AID, ENCOURAGE OR ABET ANY HOSTILE DESIGNS OF
ANY FOREIGN NATION AGAINST THE UNITED STATES, THEIR PEOPLE OR
GOVERNMENT, THEN SUCH PERSON, BEING THEREOF CONVICTED BEFORE ANY COURT
OF THE UNITED STATES HAVING JURISDICTION THEREOF, SHALL BE PUNISHED BY
A FINE NOT EXCEEDING TWO THOUSAND DOLLARS, AND BY IMPRISONMENT NOT
EXCEEDING TWO YEARS."  1 STAT. 596-597. 

NO SUBSTANTIAL OBJECTION WAS RAISED TO SEC. 1 OF THE ACT.  THE
ARGUMENT AGAINST THE VALIDITY OF SEC. 2 IS STATED MOST FULLY IN THE
VIRGINIA REPORT OF 1799-1800.  THAT REPORT, PREPARED FOR THE HOUSE OF
DELEGATES BY A COMMITTEE OF WHICH MADISON WAS CHAIRMAN, ATTEMPTED TO
ESTABLISH THAT THE POWER TO REGULATE SPEECH WAS NOT DELEGATED TO THE
FEDERAL GOVERNMENT BY THE CONSTITUTION, AND THAT THE FIRST AMENDMENT
HAD PROHIBITED THE NATIONAL GOVERNMENT FROM EXERCISING THE POWER.  IN
REPLY IT WAS URGED THAT POWER TO RESTRICT SEDITIOUS WRITING WAS
IMPLICIT IN THE ACKNOWLEDGED POWER OF THE FEDERAL GOVERNMENT TO
PROHIBIT SEDITIOUS ACTS, AND THAT THE LIBERTY OF THE PRESS DID NOT
EXTEND TO THE SORT OF SPEECH RESTRICTED BY THE ACT.  SEE THE REPORT OF
THE COMMITTEE OF THE HOUSE OF REPRESENTATIVES TO WHICH WERE REFERRED
MEMORIALS FROM THE STATES, H.R. REP. NO. 110, 5TH CONG., 3D SESS.,
PUBLISHED IN AMERICAN STATE PAPERS, MISC. VOL. 1, P. 181.  FOR AN
EXTENSIVE CONTEMPORARY ACCOUNT OF THE CONTROVERSY, SEE ST. GEORGE
TUCKER'S 1803 EDITION OF BLACKSTONE'S COMMENTARIES, APPENDIX TO VOL.
FIRST, PART SECOND, NOTE G. 

FN5  PROFESSOR ALEXANDER MEIKLEJOHN IS A LEADING EXPONENT OF THE
ABSOLUTIST INTERPRETATION OF THE FIRST AMENDMENT.  RECOGNIZING THAT
CERTAIN FORMS OF SPEECH REQUIRE REGULATION, HE EXCLUDES THOSE FORMS OF
EXPRESSION ENTIRELY FROM THE PROTECTION ACCORDED BY THE AMENDMENT. 
"THE CONSTITUTIONAL STATUS OF A MERCHANT ADVERTISING HIS WARES, OF A
PAID LOBBYIST FIGHTING FOR THE ADVANTAGE OF HIS CLIENT, IS UTTERLY
DIFFERENT FROM THAT OF A CITIZEN WHO IS PLANNING FOR THE GENERAL
WELFARE."  MEIKLEJOHN, FREE SPEECH, 39.  "THE RADIO AS IT NOW OPERATES
AMONG US IS NOT FREE.  NOR IS IT ENTITLED TO THE PROTECTION OF THE
FIRST AMENDMENT.  IT IS NOT ENGAGED IN THE TASK OF ENLARGING AND
ENRICHING HUMAN COMMUNICATION.  IT IS ENGAGED IN MAKING MONEY."  ID. AT
104.  PROFESSOR MEIKLEJOHN EVEN SUGGESTS THAT SCHOLARSHIP MAY NOW
REQUIRE SUCH SUBVENTION AND CONTROL THAT IT NO LONGER IS ENTITLED TO
PROTECTION BY THE FIRST AMENDMENT.  SEE ID. AT 99-100.  PROFESSOR
CHAFEE IN HIS REVIEW OF THE MEIKLEJOHN BOOK, 62 HARV. L. REV. 891, HAS
SUBJECTED THIS POSITION TO TRENCHANT COMMENT.    FN6  IN HARTZEL V.
UNITED STATES, 322 U.S. 680, 687, THE COURT REVERSED A CONVICTION FOR
WILFULLY CAUSING INSUBORDINATION IN THE MILITARY FORCES ON THE GROUND
THAT THE INTENT REQUIRED BY THE STATUTE WAS NOT SHOWN.  IT ADDED THAT
THERE WAS A SECOND ELEMENT NECESSARY TO CONVICTION, "CONSISTING OF A
CLEAR AND PRESENT DANGER THAT THE ACTIVITIES IN QUESTION WILL BRING
ABOUT THE SUBSTANTIVE EVILS WHICH CONGRESS HAS A RIGHT TO PREVENT. 
SCHENCK V. UNITED STATES, 249 U.S. 47.  BOTH ELEMENTS MUST BE PROVED BY
THE GOVERNMENT BEYOND A REASONABLE DOUBT." 

OTHER PASSAGES RESPONSIBLE FOR ATTRIBUTING TO THE COURT THE PRINCIPLE
THAT IMMINENCE OF THE APPREHENDED EVIL IS NECESSARY TO CONVICTION IN
FREE-SPEECH CASES ARE COLLECTED IN AN APPENDIX TO THIS OPINION, POST,
P. 556. 

FN7  NO USEFUL PURPOSE WOULD BE SERVED BY CONSIDERING HERE DECISIONS
IN WHICH THE COURT TREATED THE CHALLENGED REGULATION AS THOUGH IT
IMPOSED NO REAL RESTRAINT ON SPEECH OR ON THE PRESS.  E.G., ASSOCIATED
PRESS V. LABOR BOARD, 301 U.S. 103; VALENTINE V. CHRESTENSEN, 316 U.S.
52; RAILWAY EXPRESS AGENCY V. NEW YORK, 336 U.S. 106; LEWIS PUBLISHING
CO. V. MORGAN, 229 U.S. 288.  WE RECOGNIZED THAT RESTRICTIONS ON SPEECH
WERE INVOLVED IN UNITED STATES EX REL. MILWAUKEE PUBLISHING CO. V.
BURLESON, 255 U.S. 407, AND GILBERT V. MINNESOTA, 254 U.S. 325; BUT THE
DECISIONS RAISED ISSUES SO DIFFERENT FROM THOSE PRESENTED HERE THAT
THEY TOO NEED NOT BE CONSIDERED IN DETAIL.  OUR DECISIONS IN STROMBERG
V. CALIFORNIA, 283 U.S. 359, AND WINTERS V. NEW YORK, 333 U.S. 507,
TURNED ON THE INDEFINITENESS OF THE STATUTES. 

FN8  THE TAFT-HARTLEY ACT ALSO REQUIRES THAT AN OFFICER OF A UNION
USING THE SERVICES OF THE NATIONAL LABOR RELATIONS BOARD TAKE OATH THAT
HE "DOES NOT BELIEVE IN, AND IS NOT A MEMBER OF OR SUPPORTS ANY
ORGANIZATION THAT BELIEVES IN OR TEACHES, THE OVERTHROW OF THE UNITED
STATES GOVERNMENT BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL
METHODS."  THE COURT DIVIDED ON THE VALIDITY OF THIS REQUIREMENT.  TEST
OATHS RAISE SUCH SPECIAL PROBLEMS THAT DECISIONS ON THEIR VALIDITY ARE
NOT DIRECTLY HELPFUL HERE.  SEE WEST VIRGINIA BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624. 

FN9  BURNS V. UNITED STATES, 274 U.S. 328, ADDS NOTHING TO THE
DECISION IN WHITNEY V. CALIFORNIA. 

FN10  IN HERNDON V. GEORGIA, 295 U.S. 441, THE OPINION OF THE COURT
WAS CONCERNED SOLELY WITH A QUESTION OF PROCEDURE.  MR. JUSTICE
BRANDEIS, MR. JUSTICE STONE, AND MR. JUSTICE CARDOZO, HOWEVER, THOUGHT
THAT THE PROBLEM OF GITLOW V. NEW YORK WAS RAISED.  SEE 295 U.S. AT
446. 

FN11  SEE THE TESTIMONY OF THE DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION.  HEARINGS BEFORE THE HOUSE COMMITTEE ON UN-AMERICAN
ACTIVITIES, ON H.R. 1884 AND H.R. 2122, 80TH CONG., 1ST SESS., PART 2,
P. 37. 

FN12  REPORT OF THE ROYAL COMMISSION TO INVESTIGATE COMMUNICATION OF
SECRET AND CONFIDENTIAL INFORMATION TO AGENTS OF A FOREIGN POWER, JUNE
27, 1946, P. 44.  THERE APPEARS TO BE LITTLE RELIABLE EVIDENCE
DEMONSTRATING DIRECTLY THAT THE COMMUNIST PARTY IN THIS COUNTRY HAS
RECRUITED PERSONS WILLING TO ENGAGE IN ESPIONAGE OR OTHER UNLAWFUL
ACTIVITY ON BEHALF OF THE SOVIET UNION.  THE DEFECTION OF A SOVIET
DIPLOMATIC EMPLOYEE, HOWEVER, LED TO A CAREFUL INVESTIGATION OF AN
ESPIONAGE NETWORK IN CANADA, AND HAS DISCLOSED THE EFFECTIVENESS OF THE
CANADIAN COMMUNIST PARTY IN CONDITIONING ITS MEMBERS TO DISCLOSE TO
SOVIET AGENTS VITAL INFORMATION OF A SECRET CHARACTER.  ACCORDING TO
THE REPORT OF THE ROYAL COMMISSION INVESTIGATING THE NETWORK,
CONSPIRATORIAL CHARACTERISTICS OF THE PARTY SIMILAR TO THOSE SHOWN IN
THE EVIDENCE NOW BEFORE US WERE INSTRUMENTAL IN DEVELOPING THE
NECESSARY MOTIVATION TO COOPERATE IN THE ESPIONAGE.  SEE PP. 43-83 OF
THE REPORT. 

FN13  THE COMMUNIST BACKGROUND OF DR. KLAUS FUCHS WAS BROUGHT OUT IN
THE PROCEEDINGS AGAINST HIM.  SEE THE (LONDON) TIMES, MAR. 2, 1950, P.
2, COL. 6. 

FN14  SEE AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382. 
FORMER SENATOR ROBERT M. LA FOLLETTE, JR., HAS REPORTED HIS EXPERIENCE
WITH INFILTRATION OF COMMUNIST SYMPATHIZERS INTO CONGRESSIONAL
COMMITTEE STAFFS.  COLLIER'S, FEB. 8, 1947, P. 22. 

FN15  IMMIGRATION LAWS REQUIRE, FOR INSTANCE, EXCLUSION AND
DEPORTATION OF ALIENS WHO ADVOCATE THE OVERTHROW OF THE GOVERNMENT BY
FORCE AND VIOLENCE, AND DECLARE INELIGIBLE FOR NATURALIZATION ALIENS
WHO ARE MEMBERS OF ORGANIZATIONS SO ADVOCATING.  ACT OF FEB. 5, 1917,
SEC. 19, 39 STAT. 889, 8 U.S.C. SEC. 155; ACT OF OCT. 16, 1918, 40
STAT. 1012, 8 U.S.C. SEC. 137; ACT OF OCT. 14, 1940, SEC. 305, 54 STAT.
1141, 8 U.S.C. SEC. 705.  THE HATCH ACT PROHIBITS EMPLOYMENT BY ANY
GOVERNMENT AGENCY OF MEMBERS OF ORGANIZATIONS ADVOCATING OVERTHROW OF
"OUR CONSTITUTIONAL FORM OF GOVERNMENT."  ACT OF AUG. 2, 1939, SEC. 9A,
53 STAT. 1148, 5 U.S.C. (SUPP. III) SEC. 118J.  THE VOORHIS ACT OF OCT.
17, 1940, WAS PASSED TO REQUIRE REGISTRATION OF ORGANIZATIONS SUBJECT
TO FOREIGN CONTROL WHICH ENGAGE IN POLITICAL ACTIVITY.  54 STAT. 1201,
18 U.S.C. SEC. 2386.  THE TAFT-HARTLEY ACT CONTAINS A SECTION DESIGNED
TO EXCLUDE COMMUNISTS FROM POSITIONS OF LEADERSHIP IN LABOR
ORGANIZATIONS.  ACT OF JUNE 23, 1947, SEC. 9(H), 61 STAT. 146, 29
U.S.C. (SUPP. III) SEC. 159(H).  AND, MOST RECENTLY, THE MCCARRAN ACT
REQUIRES REGISTRATION OF "COMMUNIST-ACTION" AND "COMMUNIST-FRONT"
ORGANIZATIONS.  ACT OF SEPT. 23, 1950, SEC. 7, 64 STAT. 987, 993. 

MR. JUSTICE JACKSON, CONCURRING. 

THIS PROSECUTION IS THE LATEST OF NEVER-ENDING, BECAUSE NEVER
SUCCESSFUL, QUESTS FOR SOME LEGAL FORMULA THAT WILL SECURE AN EXISTING
ORDER AGAINST REVOLUTIONARY RADICALISM.  IT REQUIRES US TO REAPPRAISE,
IN THE LIGHT OF OUR OWN TIMES AND CONDITIONS, CONSTITUTIONAL DOCTRINES
DEVISED UNDER OTHER CIRCUMSTANCES TO STRIKE A BALANCE BETWEEN AUTHORITY
AND LIBERTY. 

ACTIVITY HERE CHARGED TO BE CRIMINAL IS CONSPIRACY - THAT DEFENDANTS
CONSPIRED TO TEACH AND ADVOCATE, AND TO ORGANIZE THE COMMUNIST PARTY TO
TEACH AND ADVOCATE, OVERTHROW AND DESTRUCTION OF THE GOVERNMENT BY
FORCE AND VIOLENCE.  THERE IS NO CHARGE OF ACTUAL VIOLENCE OR ATTEMPT
AT OVERTHROW.  FN1 

THE PRINCIPAL RELIANCE OF THE DEFENSE IN THIS COURT IS THAT THE
CONVICTION CANNOT STAND UNDER THE CONSTITUTION BECAUSE THE CONSPIRACY
OF THESE DEFENDANTS PRESENTS NO "CLEAR AND PRESENT DANGER" OF IMMINENT
OR FORESEEABLE OVERTHROW. 

                                  I. 

THE STATUTE BEFORE US REPEATS A PATTERN, ORIGINALLY DEVISED TO COMBAT
THE WAVE OF ANARCHISTIC TERRORISM THAT PLAGUED THIS COUNTRY ABOUT THE
TURN OF THE CENTURY,  FN2  WHICH LAGS AT LEAST TWO GENERATIONS BEHIND
COMMUNIST PARTY TECHNIQUES. 

ANARCHISM TAUGHT A PHILOSOPHY OF EXTREME INDIVIDUALISM AND HOSTILITY
TO GOVERNMENT AND PROPERTY.  ITS AVOWED AIM WAS A MORE JUST ORDER, TO
BE ACHIEVED BY VIOLENT DESTRUCTION OF ALL GOVERNMENT.  FN3  ANARCHISM'S
SPORADIC AND UNCOORDINATED ACTS OF TERROR WERE NOT INTEGRATED WITH AN
EFFECTIVE REVOLUTIONARY MACHINE, BUT THE CHICAGO HAYMARKET RIOTS OF
1886,  FN4  ATTEMPTED MURDER OF THE INDUSTRIALIST FRICK, ATTACKS ON
STATE OFFICIALS, AND ASSASSINATION OF PRESIDENT MCKINLEY IN 1901, WERE
FRUITS OF ITS PREACHING. 

HOWEVER, EXTREME INDIVIDUALISM WAS NOT CONDUCIVE TO COHESIVE AND
DISCIPLINED ORGANIZATION.  ANARCHISM FELL INTO DISFAVOR AMONG
INCENDIARY RADICALS, MANY OF WHOM SHIFTED THEIR ALLEGIANCE TO THE
RISING COMMUNIST PARTY.  MEANWHILE, IN EUROPE ANARCHISM HAD BEEN
DISPLACED BY BOLSHEVISM AS THE DOCTRINE AND STRATEGY OF SOCIAL AND
POLITICAL UPHEAVAL.  LED BY INTELLECTUALS HARDENED BY REVOLUTIONARY
EXPERIENCE, IT WAS A MORE SOPHISTICATED, DYNAMIC AND REALISTIC
MOVEMENT.  ESTABLISHING A BASE IN THE SOVIET UNION, IT FOUNDED AN
AGGRESSIVE INTERNATIONAL COMMUNIST APPARATUS WHICH HAS MODELED AND
DIRECTED A REVOLUTIONARY MOVEMENT ABLE ONLY TO HARASS OUR OWN COUNTRY. 
BUT IT HAS SEIZED CONTROL OF A DOZEN OTHER COUNTRIES. 

COMMUNISM, THE ANTITHESIS OF ANARCHISM,  FN5  APPEARS TODAY AS A
CLOSED SYSTEM OF THOUGHT REPRESENTING STALIN'S VERSION OF LENIN'S
VERSION OF MARXISM.  AS AN IDEOLOGY, IT IS NOT ONE OF SPONTANEOUS
PROTEST ARISING FROM AMERICAN WORKING-CLASS EXPERIENCE.  IT IS A
COMPLICATED SYSTEM OF ASSUMPTIONS, BASED ON EUROPEAN HISTORY AND
CONDITIONS, SHROUDED IN AN OBSCURE AND AMBIGUOUS VOCABULARY, WHICH
ALLURES OUR ULTRASOPHISTICATED INTELLIGENTSIA MORE THAN OUR HARD-HEADED
WORKING PEOPLE.  FROM TIME TO TIME IT CHAMPIONS ALL MANNER OF CAUSES
AND GRIEVANCES AND MAKES ALLIANCES THAT MAY ADD TO ITS FOOTHOLD IN
GOVERNMENT OR EMBARRASS THE AUTHORITIES. 

THE COMMUNIST PARTY, NEVERTHELESS, DOES NOT SEEK ITS STRENGTH
PRIMARILY IN NUMBERS.  ITS AIM IS A RELATIVELY SMALL PARTY WHOSE
STRENGTH IS IN SELECTED, DEDICATED, INDOCTRINATED, AND RIGIDLY
DISCIPLINED MEMBERS.  FROM ESTABLISHED POLICY IT TOLERATES NO DEVIATION
AND NO DEBATE.  IT SEEKS MEMBERS THAT ARE, OR MAY BE, SECRETED IN
STRATEGIC POSTS IN TRANSPORTATION, COMMUNICATIONS, INDUSTRY,
GOVERNMENT, AND ESPECIALLY IN LABOR UNIONS WHERE IT CAN COMPEL
EMPLOYERS TO ACCEPT AND RETAIN ITS MEMBERS.  FN6  IT ALSO SEEKS TO
INFILTRATE AND CONTROL ORGANIZATIONS OF PROFESSIONAL AND OTHER GROUPS. 
THROUGH THESE PLACEMENTS IN POSITIONS OF POWER IT SEEKS A LEVERAGE OVER
SOCIETY THAT WILL MAKE UP IN POWER OF COERCION WHAT IT LACKS IN POWER
OF PERSUASION. 

THE COMMUNISTS HAVE NO SCRUPLES AGAINST SABOTAGE, TERRORISM,
ASSASSINATION, OR MOB DISORDER; BUT VIOLENCE IS NOT WITH THEM, AS WITH
THE ANARCHISTS, AN END IN ITSELF.  THE COMMUNIST PARTY ADVOCATES FORCE
ONLY WHEN PRUDENT AND PROFITABLE.  THEIR STRATEGY OF STEALTH PRECLUDES
PREMATURE OR UNCOORDINATED OUTBURSTS OF VIOLENCE, EXCEPT, OF COURSE,
WHEN THE BLAME WILL BE PLACED ON SHOULDERS OTHER THAN THEIR OWN.  THEY
RESORT TO VIOLENCE AS TO TRUTH, NOT AS A PRINCIPLE BUT AS AN
EXPEDIENT.  FORCE OR VIOLENCE, AS THEY WOULD RESORT TO IT, MAY NEVER BE
NECESSARY, BECAUSE INFILTRATION AND DECEPTION MAY BE ENOUGH. 

FORCE WOULD BE UTILIZED BY THE COMMUNIST PARTY NOT TO DESTROY
GOVERNMENT BUT FOR ITS CAPTURE.  THE COMMUNIST RECOGNIZES THAT AN
ESTABLISHED GOVERNMENT IN CONTROL OF MODERN TECHNOLOGY CANNOT BE
OVERTHROWN BY FORCE UNTIL IT IS ABOUT READY TO FALL OF ITS OWN WEIGHT. 
CONCERTED UPRISING, THEREFORE, IS TO AWAIT THAT CONTINGENCY AND
REVOLUTION IS SEEN, NOT AS A SUDDEN EPISODE, BUT AS THE CONSUMMATION OF
A LONG PROCESS. 

THE UNITED STATES, FORTUNATELY, HAS EXPERIENCED COMMUNISM ONLY IN ITS
PREPARATORY STAGES AND FOR ITS PATTERN OF FINAL ACTION MUST LOOK
ABROAD.  RUSSIA, OF COURSE, WAS THE PILOT COMMUNIST REVOLUTION, WHICH
TO THE MARXIST CONFIRMS THE PARTY'S ASSUMPTIONS AND POINTS ITS
DESTINY.  FN7 BUT COMMUNIST TECHNIQUE IN THE OVERTURN OF A FREE
GOVERNMENT WAS DISCLOSED BY THE COUP D'ETAT IN WHICH THEY SEIZED POWER
IN CZECHOSLOVAKIA.  FN8  THERE THE COMMUNIST PARTY DURING ITS
PREPARATORY STAGE CLAIMED AND RECEIVED PROTECTION FOR ITS FREEDOMS OF
SPEECH, PRESS, AND ASSEMBLY.  PRETENDING TO BE BUT ANOTHER POLITICAL
PARTY, IT EVENTUALLY WAS CONCEDED PARTICIPATION IN GOVERNMENT, WHERE IT
ENTRENCHED RELIABLE MEMBERS CHIEFLY IN CONTROL OF POLICE AND
INFORMATION SERVICES.  WHEN THE GOVERNMENT FACED A FOREIGN AND DOMESTIC
CRISIS, THE COMMUNIST PARTY HAD ESTABLISHED A LEVERAGE STRONG ENOUGH TO
THREATEN CIVIL WAR.  IN A PERIOD OF CONFUSION THE COMMUNIST PLAN
UNFOLDED AND THE UNDERGROUND ORGANIZATION CAME TO THE SURFACE
THROUGHOUT THE COUNTRY IN THE FORM CHIEFLY OF LABOR "ACTION
COMMITTEES."  COMMUNIST OFFICERS OF THE UNIONS TOOK OVER TRANSPORTATION
AND ALLOWED ONLY PERSONS WITH PARTY PERMITS TO TRAVEL.  COMMUNIST
PRINTERS TOOK OVER THE NEWSPAPERS AND RADIO AND PUT OUT ONLY PARTY
APPROVED VERSIONS OF EVENTS.  POSSESSION WAS TAKEN OF TELEGRAPH AND
TELEPHONE SYSTEMS AND COMMUNICATIONS WERE CUT OFF WHEREVER DIRECTED BY
PARTY HEADS.  COMMUNIST UNIONS TOOK OVER THE FACTORIES, AND IN THE
CITIES A PARTISAN DISTRIBUTION OF FOOD WAS MANAGED BY THE COMMUNIST
ORGANIZATION.  A VIRTUALLY BLOODLESS ABDICATION BY THE ELECTED
GOVERNMENT ADMITTED THE COMMUNISTS TO POWER, WHEREUPON THEY INSTITUTED
A REIGN OF OPPRESSION AND TERROR, AND RUTHLESSLY DENIED TO ALL OTHERS
THE FREEDOMS WHICH HAD SHELTERED THEIR CONSPIRACY. 

  II. 

THE FOREGOING IS ENOUGH TO INDICATE THAT, EITHER BY ACCIDENT OR
DESIGN, THE COMMUNIST STRATAGEM OUTWITS THE ANTI-ANARCHIST PATTERN OF
STATUTE AIMED AGAINST "OVERTHROW BY FORCE AND VIOLENCE" IF QUALIFIED BY
THE DOCTRINE THAT ONLY "CLEAR AND PRESENT DANGER" OF ACCOMPLISHING THAT
RESULT WILL SUSTAIN THE PROSECUTION. 

THE "CLEAR AND PRESENT DANGER" TEST WAS AN INNOVATION BY MR. JUSTICE
HOLMES IN THE SCHENCK CASE, FN9  REITERATED AND REFINED BY HIM AND MR.
JUSTICE BRANDEIS IN LATER CASES,  FN10  ALL ARISING BEFORE THE ERA OF
WORLD WAR II REVEALED THE SUBTLETY AND EFFICACY OF MODERNIZED
REVOLUTIONARY TECHNIQUES USED BY TOTALITARIAN PARTIES.  IN THOSE CASES,
THEY WERE FACED WITH CONVICTIONS UNDER SO-CALLED CRIMINAL SYNDICALISM
STATUTES AIMED AT ANARCHISTS BUT WHICH, LOOSELY CONSTRUED, HAD BEEN
APPLIED TO PUNISH SOCIALISM, PACIFISM, AND LEFT-WING IDEOLOGIES, THE
CHARGES OFTEN RESTING ON FARFETCHED INFERENCES WHICH, IF TRUE, WOULD
ESTABLISH ONLY TECHNICAL OR TRIVIAL VIOLATIONS.  THEY PROPOSED "CLEAR
AND PRESENT DANGER" AS A TEST FOR THE SUFFICIENCY OF EVIDENCE IN
PARTICULAR CASES. 

I WOULD SAVE IT, UNMODIFIED, FOR APPLICATION AS A "RULE OF REASON"
FN11  IN THE KIND OF CASE FOR WHICH IT WAS DEVISED.  WHEN THE ISSUE IS
CRIMINALITY OF A HOT-HEADED SPEECH ON A STREET CORNER, OR CIRCULATION
OF A FEW INCENDIARY PAMPHLETS, OR PARADING BY SOME ZEALOTS BEHIND A RED
FLAG, OR REFUSAL OF A HANDFUL OF SCHOOL CHILDREN TO SALUTE OUR FLAG, IT
IS NOT BEYOND THE CAPACITY OF THE JUDICIAL PROCESS TO GATHER,
COMPREHEND, AND WEIGH THE NECESSARY MATERIALS FOR DECISION WHETHER IT
IS A CLEAR AND PRESENT DANGER OF SUBSTANTIVE EVIL OR A HARMLESS LETTING
OFF OF STEAM.  IT IS NOT A PROPHECY, FOR THE DANGER IN SUCH CASES HAS
MATURED BY THE TIME OF TRIAL OR IT WAS NEVER PRESENT.  THE TEST APPLIES
AND HAS MEANING WHERE A CONVICTION IS SOUGHT TO BE BASED ON A SPEECH OR
WRITING WHICH DOES NOT DIRECTLY OR EXPLICITLY ADVOCATE A CRIME BUT TO
WHICH SUCH TENDENCY IS SOUGHT TO BE ATTRIBUTED BY CONSTRUCTION OR BY
IMPLICATION FROM EXTERNAL CIRCUMSTANCES.  THE FORMULA IN SUCH CASES
FAVORS FREEDOMS THAT ARE VITAL TO OUR SOCIETY, AND, EVEN IF SOMETIMES
APPLIED TOO GENEROUSLY, THE CONSEQUENCES CANNOT BE GRAVE.  BUT ITS
RECENT EXPANSION HAS EXTENDED, IN PARTICULAR TO COMMUNISTS,
UNPRECEDENTED IMMUNITIES.  FN12  UNLESS WE ARE TO HOLD OUR GOVERNMENT
CAPTIVE IN A JUDGEMADE VERBAL TRAP, WE MUST APPROACH THE PROBLEM OF A
WELL-ORGANIZED, NATION-WIDE CONSPIRACY, SUCH AS I HAVE DESCRIBED, AS
REALISTICALLY AS OUR PREDECESSORS FACED THE TRIVIALITIES THAT WERE
BEING PROSECUTED UNTIL THEY WERE CHECKED WITH A RULE OF REASON. 

I THINK REASON IS LACKING FOR APPLYING THAT TEST TO THIS CASE. 

IF WE MUST DECIDE THAT THIS ACT AND ITS APPLICATION ARE
CONSTITUTIONAL ONLY IF WE ARE CONVINCED THAT PETITIONER'S CONDUCT
CREATES A "CLEAR AND PRESENT DANGER" OF VIOLENT OVERTHROW, WE MUST
APPRAISE IMPONDERABLES, INCLUDING INTERNATIONAL AND NATIONAL PHENOMENA
WHICH BAFFLE THE BEST INFORMED FOREIGN OFFICES AND OUR MOST EXPERIENCED
POLITICIANS.  WE WOULD HAVE TO FORESEE AND PREDICT THE EFFECTIVENESS OF
COMMUNIST PROPAGANDA, OPPORTUNITIES FOR INFILTRATION, WHETHER, AND
WHEN, A TIME WILL COME THAT THEY CONSIDER PROPITIOUS FOR ACTION, AND
WHETHER AND HOW FAST OUR EXISTING GOVERNMENT WILL DETERIORATE.  AND WE
WOULD HAVE TO SPECULATE AS TO WHETHER AN APPROACHING COMMUNIST COUP
WOULD NOT BE ANTICIPATED BY A NATIONALISTIC FASCIST MOVEMENT.  NO
DOCTRINE CAN BE SOUND WHOSE APPLICATION REQUIRES US TO MAKE A PROPHECY
OF THAT SORT IN THE GUISE OF A LEGAL DECISION.  THE JUDICIAL PROCESS
SIMPLY IS NOT ADEQUATE TO A TRIAL OF SUCH FAR-FLUNG ISSUES.  THE
ANSWERS GIVEN WOULD REFLECT OUR OWN POLITICAL PREDILECTIONS AND NOTHING
MORE. 

THE AUTHORS OF THE CLEAR AND PRESENT DANGER TEST NEVER APPLIED IT TO
A CASE LIKE THIS, NOR WOULD I.  IF APPLIED AS IT IS PROPOSED HERE, IT
MEANS THAT THE COMMUNIST PLOTTING IS PROTECTED DURING ITS PERIOD OF
INCUBATION; ITS PRELIMINARY STAGES OF ORGANIZATION AND PREPARATION ARE
IMMUNE FROM THE LAW; THE GOVERNMENT CAN MOVE ONLY AFTER IMMINENT ACTION
IS MANIFEST, WHEN IT WOULD, OF COURSE, BE TOO LATE. 

                           III. 

THE HIGHEST DEGREE OF CONSTITUTIONAL PROTECTION IS DUE TO THE
INDIVIDUAL ACTING WITHOUT CONSPIRACY.  BUT EVEN AN INDIVIDUAL CANNOT
CLAIM THAT THE CONSTITUTION PROTECTS HIM IN ADVOCATING OR TEACHING
OVERTHROW OF GOVERNMENT BY FORCE OR VIOLENCE.  I SHOULD SUPPOSE NO ONE
WOULD DOUBT THAT CONGRESS HAS POWER TO MAKE SUCH ATTEMPTED OVERTHROW A
CRIME.  BUT THE CONTENTION IS THAT ONE HAS THE CONSTITUTIONAL RIGHT TO
WORK UP A PUBLIC DESIRE AND WILL TO DO WHAT IT IS A CRIME TO ATTEMPT. 
I THINK DIRECT INCITEMENT BY SPEECH OR WRITING CAN BE MADE A CRIME, AND
I THINK THERE CAN BE A CONVICTION WITHOUT ALSO PROVING THAT THE ODDS
FAVORED ITS SUCCESS BY 99 TO 1, OR SOME OTHER EXTREMELY HIGH RATIO. 

THE NAMES OF MR. JUSTICE HOLMES AND MR. JUSTICE BRANDEIS CANNOT BE
ASSOCIATED WITH SUCH A DOCTRINE OF GOVERNMENTAL DISABILITY.  AFTER THE
SCHENCK CASE, IN WHICH THEY SET FORTH THE CLEAR AND PRESENT DANGER
TEST, THEY JOINED IN THESE WORDS OF MR. JUSTICE HOLMES, SPOKEN FOR A
UNANIMOUS COURT: 

"  ...  (THE) FIRST AMENDMENT WHILE PROHIBITING LEGISLATION AGAINST
FREE SPEECH AS SUCH CANNOT HAVE BEEN, AND OBVIOUSLY WAS NOT, INTENDED
TO GIVE IMMUNITY FOR EVERY POSSIBLE USE OF LANGUAGE.  ROBERTSON V.
BALDWIN, 165 U.S. 275, 281.  WE VENTURE TO BELIEVE THAT NEITHER
HAMILTON NOR MADISON, NOR ANY OTHER COMPETENT PERSON THEN OR LATER,
EVER SUPPOSED THAT TO MAKE CRIMINAL THE COUNSELLING OF A MURDER WITHIN
THE JURISDICTION OF CONGRESS WOULD BE AN UNCONSTITUTIONAL INTERFERENCE
WITH FREE SPEECH."  FROHWERK V. UNITED STATES, 249 U.S. 204, 206. 

THE SAME DOCTRINE WAS EARLIER STATED IN FOX V. WASHINGTON, 236 U.S.
273, 277, AND THAT CASE WAS RECENTLY AND WITH APPROVAL CITED IN GIBONEY
V. EMPIRE STORAGE & ICE CO., 336 U.S. 490, 502. 

AS APTLY STATED BY JUDGE LEARNED HAND IN MASSES PUBLISHING CO. V.
PATTEN, 244 F. 535, 540:  "ONE MAY NOT COUNSEL OR ADVISE OTHERS TO
VIOLATE THE LAW AS IT STANDS.  WORDS ARE NOT ONLY THE KEYS OF
PERSUASION, BUT THE TRIGGERS OF ACTION, AND THOSE WHICH HAVE NO PURPORT
BUT TO COUNSEL THE VIOLATION OF LAW CANNOT BY ANY LATITUDE OF
INTERPRETATION BE A PART OF THAT PUBLIC OPINION WHICH IS THE FINAL
SOURCE OF GOVERNMENT IN A DEMOCRATIC STATE." 

OF COURSE, IT IS NOT ALWAYS EASY TO DISTINGUISH TEACHING OR ADVOCACY
IN THE SENSE OF INCITEMENT FROM TEACHING OR ADVOCACY IN THE SENSE OF
EXPOSITION OR EXPLANATION.  IT IS A QUESTION OF FACT IN EACH CASE. 

IV. 

WHAT REALLY IS UNDER REVIEW HERE IS A CONVICTION OF CONSPIRACY, AFTER
A TRIAL FOR CONSPIRACY, ON AN INDICTMENT CHARGING CONSPIRACY, BROUGHT
UNDER A STATUTE OUTLAWING CONSPIRACY.  WITH DUE RESPECT TO MY
COLLEAGUES, THEY SEEM TO ME TO DISCUSS ANYTHING UNDER THE SUN EXCEPT
THE LAW OF CONSPIRACY.  ONE OF THE DISSENTING OPINIONS EVEN APPEARS TO
CHIDE ME FOR "INVOKING THE LAW OF CONSPIRACY."  AS THAT IS THE CASE
BEFORE US, IT MAY BE MORE AMAZING THAT ITS REVERSAL CAN BE PROPOSED
WITHOUT EVEN CONSIDERING THE LAW OF CONSPIRACY. 

THE CONSTITUTION DOES NOT MAKE CONSPIRACY A CIVIL RIGHT.  THE COURT
HAS NEVER BEFORE DONE SO AND I THINK IT SHOULD NOT DO SO NOW. 
CONSPIRACIES OF LABOR UNIONS, TRADE ASSOCIATIONS, AND NEWS AGENCIES
HAVE BEEN CONDEMNED, ALTHOUGH ACCOMPLISHED, EVIDENCED AND CARRIED OUT,
LIKE THE CONSPIRACY HERE, CHIEFLY BY LETTER-WRITING, MEETINGS, SPEECHES
AND ORGANIZATION.  INDEED, THIS COURT SEEMS, PARTICULARLY IN CASES
WHERE THE CONSPIRACY HAS ECONOMIC ENDS, TO BE APPLYING ITS DOCTRINES
WITH INCREASING SEVERITY.  WHILE I CONSIDER CRIMINAL CONSPIRACY A
DRAGNET DEVICE CAPABLE OF PERVERSION INTO AN INSTRUMENT OF INJUSTICE IN
THE HANDS OF A PARTISAN OR COMPLACENT JUDICIARY, IT HAS AN ESTABLISHED
PLACE IN OUR SYSTEM OF LAW, AND NO REASON APPEARS FOR APPLYING IT ONLY
TO CONCERTED ACTION CLAIMED TO DISTURB INTERSTATE COMMERCE AND
WITHHOLDING IT FROM THOSE CLAIMED TO UNDERMINE OUR WHOLE GOVERNMENT. 
FN13 

THE BASIC RATIONALE OF THE LAW OF CONSPIRACY IS THAT A CONSPIRACY MAY
BE AN EVIL IN ITSELF, INDEPENDENTLY OF ANY OTHER EVIL IT SEEKS TO
ACCOMPLISH.  THUS, WE RECENTLY HELD IN PINKERTON V. UNITED STATES, 328
U.S. 640, 643-644, "IT HAS BEEN LONG AND CONSISTENTLY RECOGNIZED BY THE
COURT THAT THE COMMISSION OF THE SUBSTANTIVE OFFENSE AND A CONSPIRACY
TO COMMIT IT ARE SEPARATE AND DISTINCT OFFENSES.  THE POWER OF CONGRESS
TO SEPARATE THE TWO AND TO AFFIX TO EACH A DIFFERENT PENALTY IS WELL
ESTABLISHED.  ...  AND THE PLEA OF DOUBLE JEOPARDY IS NO DEFENSE TO A
CONVICTION FOR BOTH OFFENSES.  ...  " 

SO FAR DOES THIS DOCTRINE REACH THAT IT IS WELL SETTLED THAT CONGRESS
MAY MAKE IT A CRIME TO CONSPIRE WITH OTHERS TO DO WHAT AN INDIVIDUAL
MAY LAWFULLY DO ON HIS OWN.  THIS PRINCIPLE IS ILLUSTRATED IN
CONSPIRACIES THAT VIOLATE THE ANTITRUST LAWS AS SUSTAINED AND APPLIED
BY THIS COURT.  ALTHOUGH ONE MAY RAISE THE PRICES OF HIS OWN PRODUCTS,
AND MANY, ACTING WITHOUT CONCERT, MAY DO SO, THE MOMENT THEY CONSPIRE
TO THAT END THEY ARE PUNISHABLE.  THE SAME PRINCIPLE IS APPLIED TO
ORGANIZED LABOR.  ANY WORKMAN MAY QUIT HIS WORK FOR ANY REASON, BUT
CONCERTED ACTIONS TO THE SAME END ARE IN SOME CIRCUMSTANCES FORBIDDEN. 
NATIONAL LABOR RELATIONS ACT, AS AMENDED, 61 STAT. 136, SEC. 8(B), 29
U.S.C. SEC. 158(B). 

THE REASONS UNDERLYING THE DOCTRINE THAT CONSPIRACY MAY BE A
SUBSTANTIVE EVIL IN ITSELF, APART FROM ANY EVIL IT MAY THREATEN,
ATTEMPT, OR ACCOMPLISH, ARE PECULIARLY APPROPRIATE TO CONSPIRATORIAL
COMMUNISM. 

"THE REASON FOR FINDING CRIMINAL LIABILITY IN CASE OF A COMBINATION
TO EFFECT AN UNLAWFUL END OR TO USE UNLAWFUL MEANS, WHERE NONE WOULD
EXIST, EVEN THOUGH THE ACT CONTEMPLATED WERE ACTUALLY COMMITTED BY AN
INDIVIDUAL, IS THAT A COMBINATION OF PERSONS TO COMMIT A WRONG, EITHER
AS AN END OR AS A MEANS TO AN END, IS SO MUCH MORE DANGEROUS, BECAUSE
OF ITS INCREASED POWER TO DO WRONG, BECAUSE IT IS MORE DIFFICULT TO
GUARD AGAINST AND PREVENT THE EVIL DESIGNS OF A GROUP OF PERSONS THAN
OF A SINGLE PERSON, AND BECAUSE OF THE TERROR WHICH FEAR OF SUCH A
COMBINATION TENDS TO CREATE IN THE MINDS OF PEOPLE."  FN14 

THERE IS LAMENTATION IN THE DISSENTS ABOUT THE INJUSTICE OF
CONVICTION IN THE ABSENCE OF SOME OVERT ACT.  OF COURSE, THERE HAS BEEN
NO GENERAL UPRISING AGAINST THE GOVERNMENT, BUT THE RECORD IS REPLETE
WITH ACTS TO CARRY OUT THE CONSPIRACY ALLEGED, ACTS SUCH AS ALWAYS ARE
HELD SUFFICIENT TO CONSUMMATE THE CRIME WHERE THE STATUTE REQUIRES AN
OVERT ACT. 

BUT THE SHORTER ANSWER IS THAT NO OVERT ACT IS OR NEED BE REQUIRED. 
THE COURT, IN ANTITRUST CASES, EARLY UPHELD THE POWER OF CONGRESS TO
ADOPT THE ANCIENT COMMON LAW THAT MAKES CONSPIRACY ITSELF A CRIME. 
THROUGH MR. JUSTICE HOLMES, IT SAID:  "COMING NEXT TO THE OBJECTION
THAT NO OVERT ACT IS LAID, THE ANSWER IS THAT THE SHERMAN ACT PUNISHES
THE CONSPIRACIES AT WHICH IT IS AIMED ON THE COMMON LAW FOOTING - THAT
IS TO SAY, IT DOES NOT MAKE THE DOING OF ANY ACT OTHER THAN THE ACT OF
CONSPIRING A CONDITION OF LIABILITY."  NASH V. UNITED STATES, 229 U.S.
373, 378.  REITERATED, UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S.
150, 252.  IT IS NOT TO BE SUPPOSED THAT THE POWER OF CONGRESS TO
PROTECT THE NATION'S EXISTENCE IS MORE LIMITED THAN ITS POWER TO
PROTECT INTERSTATE COMMERCE. 

ALSO, IT IS URGED THAT SINCE THE CONVICTION IS FOR CONSPIRACY TO
TEACH AND ADVOCATE, AND TO ORGANIZE THE COMMUNIST PARTY TO TEACH AND
ADVOCATE, THE FIRST AMENDMENT IS VIOLATED, BECAUSE FREEDOMS OF SPEECH
AND PRESS PROTECT TEACHING AND ADVOCACY REGARDLESS OF WHAT IS TAUGHT OR
ADVOCATED.  I HAVE NEVER THOUGHT THAT TO BE THE LAW. 

I DO NOT SUGGEST THAT CONGRESS COULD PUNISH CONSPIRACY TO ADVOCATE
SOMETHING, THE DOING OF WHICH IT MAY NOT PUNISH.  ADVOCACY OR
EXPOSITION OF THE DOCTRINE OF COMMUNAL PROPERTY OWNERSHIP, OR ANY
POLITICAL PHILOSOPHY UNASSOCIATED WITH ADVOCACY OF ITS IMPOSITION BY
FORCE OR SEIZURE OF GOVERNMENT BY UNLAWFUL MEANS COULD NOT BE REACHED
THROUGH CONSPIRACY PROSECUTION.  BUT IT IS NOT FORBIDDEN TO PUT DOWN
FORCE OR VIOLENCE, IT IS NOT FORBIDDEN TO PUNISH ITS TEACHING OR
ADVOCACY, AND THE END BEING PUNISHABLE, THERE IS NO DOUBT OF THE POWER
TO PUNISH CONSPIRACY FOR THE PURPOSE. 

THE DEFENSE OF FREEDOM OF SPEECH OR PRESS HAS OFTEN BEEN RAISED IN
CONSPIRACY CASES, BECAUSE, WHETHER COMMITTED BY COMMUNISTS, BY
BUSINESSMEN, OR BY COMMON CRIMINALS, IT USUALLY CONSISTS OF WORDS
WRITTEN OR SPOKEN, EVIDENCED BY LETTERS, CONVERSATIONS, SPEECHES OR
DOCUMENTS.  COMMUNICATION IS THE ESSENCE OF EVERY CONSPIRACY, FOR ONLY
BY IT CAN COMMON PURPOSE AND CONCERT OF ACTION BE BROUGHT ABOUT OR BE
PROVED.  HOWEVER, WHEN LABOR UNIONS RAISED THE DEFENSE OF FREE SPEECH
AGAINST A CONSPIRACY CHARGE, WE UNANIMOUSLY SAID: 

"IT RARELY HAS BEEN SUGGESTED THAT THE CONSTITUTIONAL FREEDOM FOR
SPEECH AND PRESS EXTENDS ITS IMMUNITY TO SPEECH OR WRITING USED AS AN
INTEGRAL PART OF CONDUCT IN VIOLATION OF A VALID CRIMINAL STATUTE.  WE
REJECT THE CONTENTION NOW.  ... 

.         .         .         .         . 

"  ...  IT IS TRUE THAT THE AGREEMENTS AND COURSE OF CONDUCT HERE
WERE AS IN MOST INSTANCES BROUGHT ABOUT THROUGH SPEAKING OR WRITING. 
BUT IT HAS NEVER BEEN DEEMED AN ABRIDGMENT OF FREEDOM OF SPEECH OR
PRESS TO MAKE A COURSE OF CONDUCT ILLEGAL MERELY BECAUSE THE CONDUCT
WAS IN PART INITIATED, EVIDENCED, OR CARRIED OUT BY MEANS OF LANGUAGE,
EITHER SPOKEN, WRITTEN, OR PRINTED.  ...  SUCH AN EXPANSIVE
INTERPRETATION OF THE CONSTITUTIONAL GUARANTIES OF SPEECH AND PRESS
WOULD MAKE IT PRACTICALLY IMPOSSIBLE EVER TO ENFORCE LAWS AGAINST
AGREEMENTS IN RESTRAINT OF TRADE AS WELL AS MANY OTHER AGREEMENTS AND
CONSPIRACIES DEEMED INJURIOUS TO SOCIETY."  GIBONEY V. EMPIRE STORAGE &
ICE CO., 336 U.S. 490, 498, 502. 

A CONTENTION BY THE PRESS ITSELF, IN A CONSPIRACY CASE, THAT IT WAS
ENTITLED TO THE BENEFITS OF THE "CLEAR AND PRESENT DANGER" TEST, WAS
CURTLY REBUFFED BY THIS COURT, SAYING:  "NOR IS A PUBLISHER WHO ENGAGES
IN BUSINESS PRACTICES MADE UNLAWFUL BY THE SHERMAN ACT ENTITLED TO A
PARTIAL IMMUNITY BY REASON OF THE 'CLEAR AND PRESENT DANGER' DOCTRINE
...  FORMULATED AS IT WAS TO PROTECT LIBERTY OF THOUGHT AND OF
EXPRESSION, IT WOULD DEGRADE THE CLEAR AND PRESENT DANGER DOCTRINE TO
FASHION FROM IT A SHIELD FOR BUSINESS PUBLISHERS WHO ENGAGE IN BUSINESS
PRACTICES CONDEMNED BY THE SHERMAN ACT.  ...  "  ASSOCIATED PRESS V.
UNITED STATES, 326 U.S. 1, 7.  I SHOULD THINK IT AT LEAST AS
"DEGRADING" TO FASHION OF IT A SHIELD FOR CONSPIRATORS WHOSE ULTIMATE
PURPOSE IS TO CAPTURE OR OVERTHROW THE GOVERNMENT. 

IN CONSPIRACY CASES THE COURT NOT ONLY HAS DISPENSED WITH PROOF OF
CLEAR AND PRESENT DANGER BUT EVEN OF POWER TO CREATE A DANGER:  "IT
LONG HAS BEEN SETTLED, HOWEVER, THAT A 'CONSPIRACY TO COMMIT A CRIME IS
A DIFFERENT OFFENSE FROM THE CRIME THAT IS THE OBJECT OF THE
CONSPIRACY.'  ... PETITIONERS, FOR EXAMPLE, MIGHT HAVE BEEN CONVICTED
HERE OF A CONSPIRACY TO MONOPOLIZE WITHOUT EVER HAVING ACQUIRED THE
POWER TO CARRY OUT THE OBJECT OF THE CONSPIRACY  ...  "  AMERICAN
TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 789. 

HAVING HELD THAT A CONSPIRACY ALONE IS A CRIME AND ITS CONSUMMATION
IS ANOTHER, IT WOULD BE WEIRD LEGAL REASONING TO HOLD THAT CONGRESS
COULD PUNISH THE ONE ONLY IF THERE WAS "CLEAR AND PRESENT DANGER" OF
THE SECOND.  THIS WOULD COMPEL THE GOVERNMENT TO PROVE TWO CRIMES IN
ORDER TO CONVICT FOR ONE.    WHEN OUR CONSTITUTIONAL PROVISIONS WERE
WRITTEN, THE CHIEF FORCES RECOGNIZED AS ANTAGONISTS IN THE STRUGGLE
BETWEEN AUTHORITY AND LIBERTY WERE THE GOVERNMENT ON THE ONE HAND AND
THE INDIVIDUAL CITIZEN ON THE OTHER.  IT WAS THOUGHT THAT IF THE STATE
COULD BE KEPT IN ITS PLACE THE INDIVIDUAL COULD TAKE CARE OF HIMSELF. 

IN MORE RECENT TIMES THESE PROBLEMS HAVE BEEN COMPLICATED BY THE
INTERVENTION BETWEEN THE STATE AND THE CITIZEN OF PERMANENTLY
ORGANIZED, WELL-FINANCED, SEMISECRET AND HIGHLY DISCIPLINED POLITICAL
ORGANIZATIONS.  TOTALITARIAN GROUPS HERE AND ABROAD PERFECTED THE
TECHNIQUE OF CREATING PRIVATE PARAMILITARY ORGANIZATIONS TO COERCE BOTH
THE PUBLIC GOVERNMENT AND ITS CITIZENS.  THESE ORGANIZATIONS ASSERT AS
AGAINST OUR GOVERNMENT ALL OF THE CONSTITUTIONAL RIGHTS AND IMMUNITIES
OF INDIVIDUALS AND AT THE SAME TIME EXERCISE OVER THEIR FOLLOWERS MUCH
OF THE AUTHORITY WHICH THEY DENY TO THE GOVERNMENT.  THE COMMUNIST
PARTY REALISTICALLY IS A STATE WITHIN A STATE, AN AUTHORITARIAN
DICTATORSHIP WITHIN A REPUBLIC.  IT DEMANDS THESE FREEDOMS, NOT FOR ITS
MEMBERS, BUT FOR THE ORGANIZED PARTY.  IT DENIES TO ITS OWN MEMBERS AT
THE SAME TIME THE FREEDOM TO DISSENT, TO DEBATE, TO DEVIATE FROM THE
PARTY LINE, AND ENFORCES ITS AUTHORITARIAN RULE BY CRUDE PURGES, IF
NOTHING MORE VIOLENT. 

THE LAW OF CONSPIRACY HAS BEEN THE CHIEF MEANS AT THE GOVERNMENT'S
DISPOSAL TO DEAL WITH THE GROWING PROBLEMS CREATED BY SUCH
ORGANIZATIONS.  I HAPPEN TO THINK IT IS AN AWKWARD AND INEPT REMEDY,
BUT I FIND NO CONSTITUTIONAL AUTHORITY FOR TAKING THIS WEAPON FROM THE
GOVERNMENT.  THERE IS NO CONSTITUTIONAL RIGHT TO "GANG UP" ON THE
GOVERNMENT. 

WHILE I THINK THERE WAS POWER IN CONGRESS TO ENACT THIS STATUTE AND
THAT, AS APPLIED IN THIS CASE, IT CANNOT BE HELD UNCONSTITUTIONAL,
FN15  I ADD THAT I HAVE LITTLE FAITH IN THE LONG-RANGE EFFECTIVENESS OF
THIS CONVICTION TO STOP THE RISE OF THE COMMUNIST MOVEMENT.  COMMUNISM
WILL NOT GO TO JAIL WITH THESE COMMUNISTS.  NO DECISION BY THIS COURT
CAN FORESTALL REVOLUTION WHENEVER THE EXISTING GOVERNMENT FAILS TO
COMMAND THE RESPECT AND LOYALTY OF THE PEOPLE AND SUFFICIENT DISTRESS
AND DISCONTENT IS ALLOWED TO GROW UP AMONG THE MASSES.  MANY FAILURES
BY FALLEN GOVERNMENTS ATTEST THAT NO GOVERNMENT CAN LONG PREVENT
REVOLUTION BY OUTLAWRY.  FN16  CORRUPTION, INEPTITUDE, INFLATION,
OPPRESSIVE TAXATION, MILITARIZATION, INJUSTICE, AND LOSS OF LEADERSHIP
CAPABLE OF INTELLECTUAL INITIATIVE IN DOMESTIC OR FOREIGN AFFAIRS ARE
ALLIES ON WHICH THE COMMUNISTS COUNT TO BRING OPPORTUNITY KNOCKING TO
THEIR DOOR.  SOMETIMES I THINK THEY MAY BE MISTAKEN.  BUT THE
COMMUNISTS ARE NOT BUILDING JUST FOR TODAY - THE REST OF US MIGHT
PROFIT BY THEIR EXAMPLE. 

FN1  THE GOVERNMENT'S OWN SUMMARY OF ITS CHARGE IS:  "THE INDICTMENT
CHARGED THAT FROM APRIL 1, 1945, TO THE DATE OF THE INDICTMENT
PETITIONERS UNLAWFULLY, WILFULLY, AND KNOWINGLY CONSPIRED WITH EACH
OTHER AND WITH OTHER PERSONS UNKNOWN TO THE GRAND JURY (1) TO ORGANIZE
AS THE COMMUNIST PARTY OF THE UNITED STATES OF AMERICA A SOCIETY, GROUP
AND ASSEMBLY OF PERSONS WHO TEACH AND ADVOCATE THE OVERTHROW AND
DESTRUCTION OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE, AND (2) KNOWINGLY AND WILFULLY TO ADVOCATE AND TEACH THE DUTY
AND NECESSITY OF OVERTHROWING AND DESTROYING THE GOVERNMENT OF THE
UNITED STATES BY FORCE AND VIOLENCE.  THE INDICTMENT ALLEGED THAT
CONSPIRACY TO TAKE SUCH ACTION IS A VIOLATION OF SECTION 3 OF THE ACT
(18 U.S.C. 10, 11(1946 ED.))." 

FN2  THE GOVERNMENT SAYS THIS ACT BEFORE US WAS MODELED AFTER THE NEW
YORK ACT OF 1909, SUSTAINED BY THIS COURT IN GITLOW V. NEW YORK, 268
U.S. 652.  THAT, IN TURN, AS THE COURT POINTED OUT, FOLLOWED AN EARLIER
NEW YORK ACT OF 1902.  SHORTLY AFTER THE ASSASSINATION OF PRESIDENT
MCKINLEY BY AN ANARCHIST, CONGRESS ADOPTED THE SAME CONCEPTS IN THE
IMMIGRATION ACT OF MARCH 3, 1903.  32 STAT. 1213, SEC. 2.  SOME GERMS
OF THE SAME CONCEPT CAN BE FOUND IN SOME RECONSTRUCTION LEGISLATION,
SUCH AS THE ENFORCEMENT ACT OF 1871, 17 STAT. 13.  THE ESPIONAGE ACT OF
1917, 40 STAT. 217, TIT. 1, SEC. 3, WHICH GAVE RISE TO A SERIES OF
CIVIL-RIGHTS DECISIONS, APPLIED ONLY DURING WAR AND DEFINED AS CRIMINAL
"FALSE STATEMENTS WITH INTENT" TO INTERFERE WITH OUR WAR EFFORT OR
CAUSE INSUBORDINATION IN THE ARMED FORCES OR OBSTRUCT RECRUITING. 
HOWEVER, A WAVE OF "CRIMINAL SYNDICALISM STATUTES" WERE ENACTED BY THE
STATES.  THEY WERE GENERALLY UPHELD, WHITNEY V. CALIFORNIA, 274 U.S.
357, AND PROSECUTIONS UNDER THEM WERE ACTIVE FROM 1919 TO 1924.  IN
CALIFORNIA ALONE, 531 INDICTMENTS WERE RETURNED AND 164 PERSONS
CONVICTED.  4 ENCYC.  SOC.  SCI. 582, 583.  THE SMITH ACT FOLLOWED
CLOSELY THE TERMINOLOGY DESIGNED TO INCRIMINATE THE METHODS OF
TERRORISTIC ANARCHISM. 

FN3  ELEMENTARY TEXTS AMPLIFY THE THEORY AND PRACTICE OF THESE
MOVEMENTS WHICH MUST BE GREATLY OVERSIMPLIFIED IN THIS OPINION.  SEE
ANARCHISM, 2 ENCYC.  SOC.  SCI. 46; NIHILISM, 11 ENCYC.  SOC.  SCI.
377. 

FN4  SPIES V. ILLINOIS, 122 ILL. 1, 12 N.E. 865, 17 N.E. 898. 

FN5  PROF. BEARD DEMONSTRATES THIS ANTITHESIS BY QUOTING THE RUSSIAN
ANARCHIST LEADER BAKUNIN, AS FOLLOWS: 

"'MARX IS AN AUTHORITARIAN AND CENTRALIZING COMMUNIST.  HE WISHES
WHAT WE WISH:  THE COMPLETE TRIUMPH OF ECONOMIC AND SOCIAL EQUALITY,
HOWEVER, WITHIN THE STATE AND THROUGH THE POWER OF THE STATE, THROUGH
THE DICTATORSHIP OF A VERY STRONG AND, SO TO SPEAK, DESPOTIC
PROVISIONAL GOVERNMENT, THAT IS, BY THE NEGATION OF LIBERTY.  HIS
ECONOMIC IDEAL IS THE STATE AS THE SOLE OWNER OF LAND AND CAPITAL,
TILLING THE SOIL BY MEANS OF AGRICULTURAL ASSOCIATIONS, UNDER THE
MANAGEMENT OF ITS ENGINEERS, AND DIRECTING THROUGH THE AGENCY OF
CAPITAL ALL INDUSTRIAL AND COMMERCIAL ASSOCIATIONS. 

"'WE DEMAND THE SAME TRIUMPH OF ECONOMIC AND SOCIAL EQUALITY THROUGH
THE ABOLITION OF THE STATE AND EVERYTHING CALLED JURIDICAL RIGHT, WHICH
IS ACCORDING TO OUR VIEW THE PERMANENT NEGATION OF HUMAN RIGHT.  WE
WISH THE RECONSTRUCTION OF SOCIETY AND THE ESTABLISHMENT OF THE UNITY
OF MANKIND NOT FROM ABOVE DOWNWARD THROUGH AUTHORITY, THROUGH
SOCIALISTIC OFFICIALS, ENGINEERS AND PUBLIC TECHNICIANS, BUT FROM BELOW
UPWARD THROUGH THE VOLUNTARY FEDERATION OF LABOR ASSOCIATIONS OF ALL
KINDS EMANCIPATED ENTIRELY FROM THE YOKE OF THE STATE.'"  BEARD,
INDIVIDUALISM AND CAPITALISM, 1 ENCYC.  SOC.  SCI. 145, 158. 

FN6  FOR METHODS AND OBJECTS OF INFILTRATION OF LABOR UNIONS, SEE
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 422. 

FN7  THE CZAR'S GOVERNMENT, IN FEBRUARY 1917, LITERALLY GAVE UP,
ALMOST WITHOUT VIOLENCE, TO THE PROVISIONAL GOVERNMENT, BECAUSE IT WAS
READY TO FALL APART FROM ITS CORRUPTION, INEPTITUDE, SUPERSTITION,
OPPRESSION AND DEFEAT.  THE REVOLUTIONARY PARTIES HAD LITTLE TO DO WITH
THIS AND REGARDED IT AS A BOURGEOISIE TRIUMPH.  LENIN WAS AN EXILE IN
SWITZERLAND, TROTSKY IN THE UNITED STATES, AND STALIN WAS IN SIBERIA. 
THE PROVISIONAL GOVERNMENT ATTEMPTED TO CONTINUE THE WAR AGAINST
GERMANY, BUT IT, TOO, WAS UNABLE TO SOLVE INTERNAL PROBLEMS AND ITS
GALICIAN CAMPAIGN FAILED WITH HEAVY LOSSES.  BY OCTOBER, ITS PRESTIGE
AND INFLUENCE SANK SO LOW THAT IT COULD NOT CONTINUE.  MEANWHILE, LENIN
AND TROTSKY HAD RETURNED AND CONSOLIDATED THE BOLSHEVIK POSITION AROUND
THE SOVIETS, OR TRADE UNIONS.  THEY SIMPLY TOOK OVER POWER IN AN ALMOST
BLOODLESS REVOLUTION BETWEEN OCTOBER 25 AND NOVEMBER 7, 1917.  THAT
LENIN AND TROTSKY REPRESENTED ONLY A MINORITY WAS DEMONSTRATED IN
NOVEMBER ELECTIONS, IN WHICH THE BOLSHEVIKS SECURED LESS THAN A QUARTER
OF THE SEATS.  THEN BEGAN THE SERIES OF OPPORTUNISTIC MOVEMENTS TO
ENTRENCH THEMSELVES IN POWER.  FACED BY INVASION OF THE ALLIES, BY
COUNTERREVOLUTION, AND THE ATTEMPTED ASSASSINATION OF LENIN, TERRORISM
WAS RESORTED TO ON A LARGE SCALE AND ALL THE DEVICES OF THE CZAR'S
POLICE STATE WERE REESTABLISHED.  SEE 1 CARR, THE BOLSHEVIK REVOLUTION
1917-1923, 99-110, AND MOORE, SOVIET POLITICS - THE DILEMMA OF POWER,
117-139. 

FN8  DUCHACEK, THE STRATEGY OF COMMUNIST INFILTRATION:
CZECHOSLOVAKIA, 1944-1948, WORLD POLITICS, VOL. II, NO. 3(APRIL 1950),
345-372; AND THE FEBRUARY COUP IN CZECHOSLOVAKIA, ID., JULY 1950, 511
532; SEE ALSO KERTESZ, THE METHODS OF COMMUNIST CONQUEST: HUNGARY, 1944
1947, ID., OCTOBER 1950, 20-54; LASSWELL, THE STRATEGY OF SOVIET
PROPAGANDA, 24 ACAD.  POL.  SCI. PROC. 214, 221.  SEE ALSO FRIEDMAN,
THE BREAK-UP OF CZECH DEMOCRACY. 

FN9  SCHENCK V. UNITED STATES, 249 U.S. 47.  THIS DOCTRINE HAS BEEN
ATTACKED AS ONE WHICH "ANNULS THE MOST SIGNIFICANT PURPOSE OF THE FIRST
AMENDMENT.  IT DESTROYS THE INTELLECTUAL BASIS OF OUR PLAN OF SELF
GOVERNMENT."  MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF
GOVERNMENT, 29.  IT HAS BEEN PRAISED:  "THE CONCEPT OF FREEDOM OF
SPEECH RECEIVED FOR THE FIRST TIME AN AUTHORITATIVE JUDICIAL
INTERPRETATION IN ACCORD WITH THE PURPOSE OF THE FRAMERS OF THE
CONSTITUTION."  CHAFEE, FREE SPEECH IN THE UNITED STATES, 82.  IN
EITHER EVENT, IT IS THE ONLY ORIGINAL JUDICIAL THOUGHT ON THE SUBJECT,
ALL LATER CASES HAVING MADE ONLY EXTENSIONS OF ITS APPLICATION.  ALL
AGREE THAT IT MEANS SOMETHING VERY IMPORTANT, BUT NO TWO SEEM TO AGREE
ON WHAT IT IS.  SEE CONCURRING OPINION, MR. JUSTICE FRANKFURTER, KOVACS
V. COOPER, 336 U.S. 77, 89. 

FN10  GITLOW V. NEW YORK, 268 U.S. 652; WHITNEY V. CALIFORNIA, 274
U.S. 357.  HOLMES' COMMENT ON THE FORMER, IN HIS LETTERS TO SIR
FREDERICK POLLOCK OF JUNE 2 AND 18, 1925, AS "A CASE IN WHICH
CONSCIENCE AND JUDGMENT ARE A LITTLE IN DOUBT," AND DESCRIPTION OF HIS
DISSENT AS ONE "IN FAVOR OF THE RIGHTS OF AN ANARCHIST (SO-CALLED) TO
TALK DROOL IN FAVOR OF THE PROLETARIAN DICTATORSHIP" SHOW THE TENTATIVE
NATURE OF HIS TEST, EVEN AS APPLIED TO A TRIVIAL CASE.  HOLMES-POLLOCK
LETTERS (HOWE ED. 1946). 

FN11  SO CHARACTERIZED BY MR. JUSTICE BRANDEIS IN SCHAEFER V. UNITED
STATES, 251 U.S. 466, 482. 

FN12  RECENT CASES HAVE PUSHED THE "CLEAR AND PRESENT DANGER"
DOCTRINE TO GREATER EXTREMES.  WHILE MR. JUSTICE BRANDEIS SAID ONLY
THAT THE EVIL TO BE FEARED MUST BE "IMMINENT" AND "RELATIVELY SERIOUS,"
WHITNEY V. CALIFORNIA, 274 U.S. 357, 376 AND 377, MORE RECENTLY IT WAS
REQUIRED "THAT THE SUBSTANTIVE EVIL MUST BE EXTREMELY SERIOUS AND THE
DEGREE OF IMMINENCE EXTREMELY HIGH BEFORE UTTERANCES CAN BE PUNISHED." 
BRIDGES V. CALIFORNIA, 314 U.S. 252, 263. 

SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, OVERRULED EARLIER
HOLDINGS THAT THE COURTS COULD TAKE JUDICIAL NOTICE THAT THE COMMUNIST
PARTY DOES ADVOCATE OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE. 
THIS COURT REVIEWED MUCH OF THE BASIC COMMUNIST LITERATURE THAT IS
BEFORE US NOW, AND HELD THAT IT WAS WITHIN "THE AREA OF ALLOWABLE
THOUGHT," ID., AT 139, THAT IT DOES NOT SHOW LACK OF ATTACHMENT TO THE
CONSTITUTION, AND THAT SUCCESS OF THE COMMUNIST PARTY WOULD NOT
NECESSARILY MEAN THE END OF REPRESENTATIVE GOVERNMENT.  THE COURT
DECLARED FURTHER THAT "A TENABLE CONCLUSION FROM THE FOREGOING IS THAT
THE PARTY IN 1927 DESIRED TO ACHIEVE ITS PURPOSE BY PEACEFUL AND
DEMOCRATIC MEANS, AND AS A THEORETICAL MATTER JUSTIFIED THE USE OF
FORCE AND VIOLENCE ONLY AS A METHOD OF PREVENTING AN ATTEMPTED FORCIBLE
COUNTER-OVERTHROW ONCE THE PARTY HAD OBTAINED CONTROL IN A PEACEFUL
MANNER, OR AS A METHOD OF LAST RESORT TO ENFORCE THE MAJORITY WILL IF
AT SOME INDEFINITE FUTURE TIME BECAUSE OF PECULIAR CIRCUMSTANCES
CONSTITUTIONAL OR PEACEFUL CHANNELS WERE NO LONGER OPEN."  ID., AT
157.  MOREOVER, THE COURT CONSIDERED THAT THIS "MERE DOCTRINAL
JUSTIFICATION OR PREDICTION OF THE USE OF FORCE UNDER HYPOTHETICAL
CONDITIONS AT SOME INDEFINITE FUTURE TIME - PREDICTION THAT IS NOT
CALCULATED OR INTENDED TO BE PRESENTLY ACTED UPON,  ...  " IBID., WAS
WITHIN THE REALM OF FREE SPEECH.  A DISSENT BY MR. CHIEF JUSTICE STONE,
FOR HIMSELF AND JUSTICES ROBERTS AND FRANKFURTER, CHALLENGED THESE
NAIVE CONCLUSIONS, AS THEY DID AGAIN IN BRIDGES V. WIXON, 326 U.S. 135,
IN WHICH THE COURT AGAIN SET ASIDE AN ATTORNEY GENERAL'S DEPORTATION
ORDER.  HERE MR. JUSTICE MURPHY, WITHOUT WHOM THERE WOULD NOT HAVE BEEN
A MAJORITY FOR THE DECISION, SPEAKING FOR HIMSELF IN A CONCURRING
OPINION, PRONOUNCED THE WHOLE DEPORTATION STATUTE UNCONSTITUTIONAL, AS
APPLIED TO COMMUNISTS, UNDER THE "CLEAR AND PRESENT DANGER TEST,"
BECAUSE, "NOT THE SLIGHTEST EVIDENCE WAS INTRODUCED TO SHOW THAT EITHER
BRIDGES OR THE COMMUNIST PARTY SERIOUSLY AND IMMINENTLY THREATENS TO
UPROOT THE GOVERNMENT BY FORCE OR VIOLENCE."  326 U.S. AT 165. 

FN13  THESE DANGERS WERE MORE FULLY SET OUT IN KRULEWITCH V. UNITED
STATES, 336 U.S. 440, 445. 

FN14  MILLER ON CRIMINAL LAW, 110.  SIMILAR REASONS HAVE BEEN
REITERATED BY THIS COURT.  UNITED STATES V. RABINOWICH, 238 U.S. 78,
88; PINKERTON V. UNITED STATES, 328 U.S. 640, 643-644. 

FN15  THE DEFENDANTS HAVE HAD THE BENEFIT SO FAR IN THIS CASE OF ALL
THE DOUBTS AND CONFUSIONS AFFORDED BY ATTEMPTS TO APPLY THE "CLEAR AND
PRESENT DANGER" DOCTRINE.  WHILE I THINK IT HAS NO PROPER APPLICATION
TO THE CASE, THESE EFFORTS HAVE BEEN IN RESPONSE TO THEIR OWN
CONTENTIONS AND FAVORED RATHER THAN PREJUDICED THEM.  THERE IS NO CALL
FOR REVERSAL ON ACCOUNT OF IT. 

FN16  THE PATHETICALLY INEFFECTIVE EFFORTS OF FREE EUROPEAN STATES TO
OVERCOME FEEBLENESS OF THE EXECUTIVE AND DECOMPOSITION OF THE
LEGISLATIVE BRANCHES OF GOVERNMENT BY LEGAL PROSCRIPTIONS ARE REVIEWED
IN LOEWENSTEIN, LEGISLATIVE CONTROL OF POLITICAL EXTREMISM IN EUROPEAN
DEMOCRACIES, 38 COL. L. REV. 591, 725(1938).  THE NAZI PARTY SEIZURE OF
POWER IN GERMANY OCCURRED WHILE BOTH IT AND ITS COMMUNIST COUNTERPART
WERE UNDER SENTENCE OF ILLEGALITY FROM THE COURTS OF THE WEIMAR
REPUBLIC.  THE GERMAN CRIMINAL CODE STRUCK DIRECTLY AT THE DISCIPLINARY
SYSTEM OF TOTALITARIAN PARTIES.  IT PROVIDED:    "THE PARTICIPATION IN
AN ORGANIZATION THE EXISTENCE, CONSTITUTION, OR PURPOSES OF WHICH ARE
TO BE KEPT SECRET FROM THE GOVERNMENT, OR IN WHICH OBEDIENCE TO UNKNOWN
SUPERIORS OR UNCONDITIONAL OBEDIENCE TO KNOWN SUPERIORS IS PLEDGED, IS
PUNISHABLE BY IMPRISONMENT UP TO SIX MONTHS FOR THE MEMBERS AND FROM
ONE MONTH TO ONE YEAR FOR THE FOUNDERS AND OFFICERS.  PUBLIC OFFICIALS
MAY BE DEPRIVED OF THE RIGHT TO HOLD PUBLIC OFFICE FOR A PERIOD OF FROM
ONE TO FIVE YEARS."  2 NAZI CONSPIRACY AND AGGRESSION (GPO 1946) 11. 
THE CZAR'S GOVERNMENT OF RUSSIA FELL WHILE THE COMMUNIST LEADERS WERE
IN EXILE.  SEE N. 7.  INSTANCES OF SIMILAR FAILURES COULD BE MULTIPLIED
INDEFINITELY. 

MR. JUSTICE BLACK, DISSENTING. 

HERE AGAIN, AS IN BREARD V. ALEXANDRIA, POST, P. 622, DECIDED THIS
DAY, MY BASIC DISAGREEMENT WITH THE COURT IS NOT AS TO HOW WE SHOULD
EXPLAIN OR RECONCILE WHAT WAS SAID IN PRIOR DECISIONS BUT SPRINGS FROM
A FUNDAMENTAL DIFFERENCE IN CONSTITUTIONAL APPROACH.  CONSEQUENTLY, IT
WOULD SERVE NO USEFUL PURPOSE TO STATE MY POSITION AT LENGTH. 

AT THE OUTSET I WANT TO EMPHASIZE WHAT THE CRIME INVOLVED IN THIS
CASE IS, AND WHAT IT IS NOT.  THESE PETITIONERS WERE NOT CHARGED WITH
AN ATTEMPT TO OVERTHROW THE GOVERNMENT.  THEY WERE NOT CHARGED WITH
OVERT ACTS OF ANY KIND DESIGNED TO OVERTHROW THE GOVERNMENT.  THEY WERE
NOT EVEN CHARGED WITH SAYING ANYTHING OR WRITING ANYTHING DESIGNED TO
OVERTHROW THE GOVERNMENT.  THE CHARGE WAS THAT THEY AGREED TO ASSEMBLE
AND TO TALK AND PUBLISH CERTAIN IDEAS AT A LATER DATE:  THE INDICTMENT
IS THAT THEY CONSPIRED TO ORGANIZE THE COMMUNIST PARTY AND TO USE
SPEECH OR NEWSPAPERS AND OTHER PUBLICATIONS IN THE FUTURE TO TEACH AND
ADVOCATE THE FORCIBLE OVERTHROW OF THE GOVERNMENT.  NO MATTER HOW IT IS
WORDED, THIS IS A VIRULENT FORM OF PRIOR CENSORSHIP OF SPEECH AND
PRESS, WHICH I BELIEVE THE FIRST AMENDMENT FORBIDS.  I WOULD HOLD SEC.
3 OF THE SMITH ACT AUTHORIZING THIS PRIOR RESTRAINT UNCONSTITUTIONAL ON
ITS FACE AND AS APPLIED. 

BUT LET US ASSUME, CONTRARY TO ALL CONSTITUTIONAL IDEAS OF FAIR
CRIMINAL PROCEDURE, THAT PETITIONERS ALTHOUGH NOT INDICTED FOR THE
CRIME OF ACTUAL ADVOCACY, MAY BE PUNISHED FOR IT.  EVEN ON THIS RADICAL
ASSUMPTION, THE OTHER OPINIONS IN THIS CASE SHOW THAT THE ONLY WAY TO
AFFIRM THESE CONVICTIONS IS TO REPUDIATE DIRECTLY OR INDIRECTLY THE
ESTABLISHED "CLEAR AND PRESENT DANGER" RULE.  THIS THE COURT DOES IN A
WAY WHICH GREATLY RESTRICTS THE PROTECTIONS AFFORDED BY THE FIRST
AMENDMENT.  THE OPINIONS FOR AFFIRMANCE INDICATE THAT THE CHIEF REASON
FOR JETTISONING THE RULE IS THE EXPRESSED FEAR THAT ADVOCACY OF
COMMUNIST DOCTRINE ENDANGERS THE SAFETY OF THE REPUBLIC.  UNDOUBTEDLY,
A GOVERNMENTAL POLICY OF UNFETTERED COMMUNICATION OF IDEAS DOES ENTAIL
DANGERS.  TO THE FOUNDERS OF THIS NATION, HOWEVER, THE BENEFITS DERIVED
FROM FREE EXPRESSION WERE WORTH THE RISK.  THEY EMBODIED THIS
PHILOSOPHY IN THE FIRST AMENDMENT'S COMMAND THAT "CONGRESS SHALL MAKE
NO LAW  ...  ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS  ...  "
I HAVE ALWAYS BELIEVED THAT THE FIRST AMENDMENT IS THE KEYSTONE OF OUR
GOVERNMENT, THAT THE FREEDOMS IT GUARANTEES PROVIDE THE BEST INSURANCE
AGAINST DESTRUCTION OF ALL FREEDOM.  AT LEAST AS TO SPEECH IN THE REALM
OF PUBLIC MATTERS, I BELIEVE THAT THE "CLEAR AND PRESENT DANGER" TEST
DOES NOT "MARK THE FURTHERMOST CONSTITUTIONAL BOUNDARIES OF PROTECTED
EXPRESSION" BUT DOES "NO MORE THAN RECOGNIZE A MINIMUM COMPULSION OF
THE BILL OF RIGHTS."  BRIDGES V. CALIFORNIA, 314 U.S. 252, 263. 

SO LONG AS THIS COURT EXERCISES THE POWER OF JUDICIAL REVIEW OF
LEGISLATION, I CANNOT AGREE THAT THE FIRST AMENDMENT PERMITS US TO
SUSTAIN LAWS SUPPRESSING FREEDOM OF SPEECH AND PRESS ON THE BASIS OF
CONGRESS' OR OUR OWN NOTIONS OF MERE "REASONABLENESS."  SUCH A DOCTRINE
WATERS DOWN THE FIRST AMENDMENT SO THAT IT AMOUNTS TO LITTLE MORE THAN
AN ADMONITION TO CONGRESS.  THE AMENDMENT AS SO CONSTRUED IS NOT LIKELY
TO PROTECT ANY BUT THOSE "SAFE" OR ORTHODOX VIEWS WHICH RARELY NEED ITS
PROTECTION.  I MUST ALSO EXPRESS MY OBJECTION TO THE HOLDING BECAUSE,
AS MR. JUSTICE DOUGLAS' DISSENT SHOWS, IT SANCTIONS THE DETERMINATION
OF A CRUCIAL ISSUE OF FACT BY THE JUDGE RATHER THAN BY THE JURY.  NOR
CAN I LET THIS OPPORTUNITY PASS WITHOUT EXPRESSING MY OBJECTION TO THE
SEVERELY LIMITED GRANT OF CERTIORARI IN THIS CASE WHICH PRECLUDED
CONSIDERATION HERE OF AT LEAST TWO OTHER REASONS FOR REVERSING THESE
CONVICTIONS:  (1) THE RECORD SHOWS A DISCRIMINATORY SELECTION OF THE
JURY PANEL WHICH PREVENTED TRIAL BEFORE A REPRESENTATIVE CROSS-SECTION
OF THE COMMUNITY; (2) THE RECORD SHOWS THAT ONE MEMBER OF THE TRIAL
JURY WAS VIOLENTLY HOSTILE TO PETITIONERS BEFORE AND DURING THE TRIAL. 

PUBLIC OPINION BEING WHAT IT NOW IS, FEW WILL PROTEST THE CONVICTION
OF THESE COMMUNIST PETITIONERS.  THERE IS HOPE, HOWEVER, THAT IN CALMER
TIMES, WHEN PRESENT PRESSURES, PASSIONS AND FEARS SUBSIDE, THIS OR SOME
LATER COURT WILL RESTORE THE FIRST AMENDMENT LIBERTIES TO THE HIGH
PREFERRED PLACE WHERE THEY BELONG IN A FREE SOCIETY. 

MR. JUSTICE DOUGLAS, DISSENTING. 

IF THIS WERE A CASE WHERE THOSE WHO CLAIMED PROTECTION UNDER THE
FIRST AMENDMENT WERE TEACHING THE TECHNIQUES OF SABOTAGE, THE
ASSASSINATION OF THE PRESIDENT, THE FILCHING OF DOCUMENTS FROM PUBLIC
FILES, THE PLANTING OF BOMBS, THE ART OF STREET WARFARE, AND THE LIKE,
I WOULD HAVE NO DOUBTS.  THE FREEDOM TO SPEAK IS NOT ABSOLUTE; THE
TEACHING OF METHODS OF TERROR AND OTHER SEDITIOUS CONDUCT SHOULD BE
BEYOND THE PALE ALONG WITH OBSCENITY AND IMMORALITY.  THIS CASE WAS
ARGUED AS IF THOSE WERE THE FACTS.  THE ARGUMENT IMPORTED MUCH
SEDITIOUS CONDUCT INTO THE RECORD.  THAT IS EASY AND IT HAS POPULAR
APPEAL, FOR THE ACTIVITIES OF COMMUNISTS IN PLOTTING AND SCHEMING
AGAINST THE FREE WORLD ARE COMMON KNOWLEDGE.  BUT THE FACT IS THAT NO
SUCH EVIDENCE WAS INTRODUCED AT THE TRIAL.  THERE IS A STATUTE WHICH
MAKES A SEDITIOUS CONSPIRACY UNLAWFUL.  FN1  PETITIONERS, HOWEVER, WERE
NOT CHARGED WITH A "CONSPIRACY TO OVERTHROW" THE GOVERNMENT.  THEY WERE
CHARGED WITH A CONSPIRACY TO FORM A PARTY AND GROUPS AND ASSEMBLIES OF
PEOPLE WHO TEACH AND ADVOCATE THE OVERTHROW OF OUR GOVERNMENT BY FORCE
OR VIOLENCE AND WITH A CONSPIRACY TO ADVOCATE AND TEACH ITS OVERTHROW
BY FORCE AND VIOLENCE.  FN2  IT MAY WELL BE THAT INDOCTRINATION IN THE
TECHNIQUES OF TERROR TO DESTROY THE GOVERNMENT WOULD BE INDICTABLE
UNDER EITHER STATUTE.  BUT THE TEACHING WHICH IS CONDEMNED HERE IS OF A
DIFFERENT CHARACTER. 

SO FAR AS THE PRESENT RECORD IS CONCERNED, WHAT PETITIONERS DID WAS
TO ORGANIZE PEOPLE TO TEACH AND THEMSELVES TEACH THE MARXIST-LENINIST
DOCTRINE CONTAINED CHIEFLY IN FOUR BOOKS:  FN3  STALIN, FOUNDATIONS OF
LENINISM (1924); MARX AND ENGELS, MANIFESTO OF THE COMMUNIST PARTY
(1848); LENIN, THE STATE AND REVOLUTION (1917); HISTORY OF THE
COMMUNIST PARTY OF THE SOVIET UNION (B.)(1939). 

THOSE BOOKS ARE TO SOVIET COMMUNISM WHAT MEIN KAMPF WAS TO NAZISM. 
IF THEY ARE UNDERSTOOD, THE UGLINESS OF COMMUNISM IS REVEALED, ITS
DECEIT AND CUNNING ARE EXPOSED, THE NATURE OF ITS ACTIVITIES BECOMES
APPARENT, AND THE CHANCES OF ITS SUCCESS LESS LIKELY.  THAT IS NOT, OF
COURSE, THE REASON WHY PETITIONERS CHOSE THESE BOOKS FOR THEIR
CLASSROOMS.  THEY ARE FERVENT COMMUNISTS TO WHOM THESE VOLUMES ARE
GOSPEL.  THEY PREACHED THE CREED WITH THE HOPE THAT SOME DAY IT WOULD
BE ACTED UPON. 

THE OPINION OF THE COURT DOES NOT OUTLAW THESE TEXTS NOR CONDEMN THEM
TO THE FIRE, AS THE COMMUNISTS DO LITERATURE OFFENSIVE TO THEIR CREED. 
BUT IF THE BOOKS THEMSELVES ARE NOT OUTLAWED, IF THEY CAN LAWFULLY
REMAIN ON LIBRARY SHELVES, BY WHAT REASONING DOES THEIR USE IN A
CLASSROOM BECOME A CRIME?  IT WOULD NOT BE A CRIME UNDER THE ACT TO
INTRODUCE THESE BOOKS TO A CLASS, THOUGH THAT WOULD BE TEACHING WHAT
THE CREED OF VIOLENT OVERTHROW OF THE GOVERNMENT IS.  THE ACT, AS
CONSTRUED, REQUIRES THE ELEMENT OF INTENT - THAT THOSE WHO TEACH THE
CREED BELIEVE IN IT.  THE CRIME THEN DEPENDS NOT ON WHAT IS TAUGHT BUT
ON WHO THE TEACHER IS.  THAT IS TO MAKE FREEDOM OF SPEECH TURN NOT ON
WHAT IS SAID, BUT ON THE INTENT WITH WHICH IT IS SAID.  ONCE WE START
DOWN THAT ROAD WE ENTER TERRITORY DANGEROUS TO THE LIBERTIES OF EVERY
CITIZEN. 

THERE WAS A TIME IN ENGLAND WHEN THE CONCEPT OF CONSTRUCTIVE TREASON
FLOURISHED.  MEN WERE PUNISHED NOT FOR RAISING A HAND AGAINST THE KING
BUT FOR THINKING MURDEROUS THOUGHTS ABOUT HIM.  THE FRAMERS OF THE
CONSTITUTION WERE ALIVE TO THAT ABUSE AND TOOK STEPS TO SEE THAT THE
PRACTICE WOULD NOT FLOURISH HERE.  TREASON WAS DEFINED TO REQUIRE OVERT
ACTS - THE EVOLUTION OF A PLOT AGAINST THE COUNTRY INTO AN ACTUAL
PROJECT.  THE PRESENT CASE IS NOT ONE OF TREASON.  BUT THE ANALOGY IS
CLOSE WHEN THE ILLEGALITY IS MADE TO TURN ON INTENT, NOT ON THE NATURE
OF THE ACT.  WE THEN START PROBING MEN'S MINDS FOR MOTIVE AND PURPOSE;
THEY BECOME ENTANGLED IN THE LAW NOT FOR WHAT THEY DID BUT FOR WHAT
THEY THOUGHT; THEY GET CONVICTED NOT FOR WHAT THEY SAID BUT FOR THE
PURPOSE WITH WHICH THEY SAID IT. 

INTENT, OF COURSE, OFTEN MAKES THE DIFFERENCE IN THE LAW.  AN ACT
OTHERWISE EXCUSABLE OR CARRYING MINOR PENALTIES MAY GROW TO AN
ABHORRENT THING IF THE EVIL INTENT IS PRESENT.  WE DEAL HERE, HOWEVER,
NOT WITH ORDINARY ACTS BUT WITH SPEECH, TO WHICH THE CONSTITUTION HAS
GIVEN A SPECIAL SANCTION. 

THE VICE OF TREATING SPEECH AS THE EQUIVALENT OF OVERT ACTS OF A
TREASONABLE OR SEDITIOUS CHARACTER IS EMPHASIZED BY A CONCURRING
OPINION, WHICH BY INVOKING THE LAW OF CONSPIRACY MAKES SPEECH DO
SERVICE FOR DEEDS WHICH ARE DANGEROUS TO SOCIETY.  THE DOCTRINE OF
CONSPIRACY HAS SERVED DIVERS AND OPPRESSIVE PURPOSES AND IN ITS BROAD
REACH CAN BE MADE TO DO GREAT EVIL.  BUT NEVER UNTIL TODAY HAS ANYONE
SERIOUSLY THOUGHT THAT THE ANCIENT LAW OF CONSPIRACY COULD
CONSTITUTIONALLY BE USED TO TURN SPEECH INTO SEDITIOUS CONDUCT.  YET
THAT IS PRECISELY WHAT IS SUGGESTED.  I REPEAT THAT WE DEAL HERE WITH
SPEECH ALONE, NOT WITH SPEECH PLUS ACTS OF SABOTAGE OR UNLAWFUL
CONDUCT.  NOT A SINGLE SEDITIOUS ACT IS CHARGED IN THE INDICTMENT.  TO
MAKE A LAWFUL SPEECH UNLAWFUL BECAUSE TWO MEN CONCEIVE IT IS TO RAISE
THE LAW OF CONSPIRACY TO APPALLING PROPORTIONS.  THAT COURSE IS TO MAKE
A RADICAL BREAK WITH THE PAST AND TO VIOLATE ONE OF THE CARDINAL
PRINCIPLES OF OUR CONSTITUTIONAL SCHEME. 

FREE SPEECH HAS OCCUPIED AN EXALTED POSITION BECAUSE OF THE HIGH
SERVICE IT HAS GIVEN OUR SOCIETY.  ITS PROTECTION IS ESSENTIAL TO THE
VERY EXISTENCE OF A DEMOCRACY.  THE AIRING OF IDEAS RELEASES PRESSURES
WHICH OTHERWISE MIGHT BECOME DESTRUCTIVE.  WHEN IDEAS COMPETE IN THE
MARKET FOR ACCEPTANCE, FULL AND FREE DISCUSSION EXPOSES THE FALSE AND
THEY GAIN FEW ADHERENTS.  FULL AND FREE DISCUSSION EVEN OF IDEAS WE
HATE ENCOURAGES THE TESTING OF OUR OWN PREJUDICES AND PRECONCEPTIONS. 
FULL AND FREE DISCUSSION KEEPS A SOCIETY FROM BECOMING STAGNANT AND
UNPREPARED FOR THE STRESSES AND STRAINS THAT WORK TO TEAR ALL
CIVILIZATIONS APART. 

FULL AND FREE DISCUSSION HAS INDEED BEEN THE FIRST ARTICLE OF OUR
FAITH.  WE HAVE FOUNDED OUR POLITICAL SYSTEM ON IT.  IT HAS BEEN THE
SAFEGUARD OF EVERY RELIGIOUS, POLITICAL, PHILOSOPHICAL, ECONOMIC, AND
RACIAL GROUP AMONGST US.  WE HAVE COUNTED ON IT TO KEEP US FROM
EMBRACING WHAT IS CHEAP AND FALSE; WE HAVE TRUSTED THE COMMON SENSE OF
OUR PEOPLE TO CHOOSE THE DOCTRINE TRUE TO OUR GENIUS AND TO REJECT THE
REST.  THIS HAS BEEN THE ONE SINGLE OUTSTANDING TENET THAT HAS MADE OUR
INSTITUTIONS THE SYMBOL OF FREEDOM AND EQUALITY.  WE HAVE DEEMED IT
MORE COSTLY TO LIBERTY TO SUPPRESS A DESPISED MINORITY THAN TO LET THEM
VENT THEIR SPLEEN.  WE HAVE ABOVE ALL ELSE FEARED THE POLITICAL
CENSOR.  WE HAVE WANTED A LAND WHERE OUR PEOPLE CAN BE EXPOSED TO ALL
THE DIVERSE CREEDS AND CULTURES OF THE WORLD. 

THERE COMES A TIME WHEN EVEN SPEECH LOSES ITS CONSTITUTIONAL
IMMUNITY.  SPEECH INNOCUOUS ONE YEAR MAY AT ANOTHER TIME FAN SUCH
DESTRUCTIVE FLAMES THAT IT MUST BE HALTED IN THE INTERESTS OF THE
SAFETY OF THE REPUBLIC.  THAT IS THE MEANING OF THE CLEAR AND PRESENT
DANGER TEST.  WHEN CONDITIONS ARE SO CRITICAL THAT THERE WILL BE NO
TIME TO AVOID THE EVIL THAT THE SPEECH THREATENS, IT IS TIME TO CALL A
HALT.  OTHERWISE, FREE SPEECH WHICH IS THE STRENGTH OF THE NATION WILL
BE THE CAUSE OF ITS DESTRUCTION. 

YET FREE SPEECH IS THE RULE, NOT THE EXCEPTION.  THE RESTRAINT TO BE
CONSTITUTIONAL MUST BE BASED ON MORE THAN FEAR, ON MORE THAN PASSIONATE
OPPOSITION AGAINST THE SPEECH, ON MORE THAN A REVOLTED DISLIKE FOR ITS
CONTENTS.  THERE MUST BE SOME IMMEDIATE INJURY TO SOCIETY THAT IS
LIKELY IF SPEECH IS ALLOWED.  THE CLASSIC STATEMENT OF THESE CONDITIONS
WAS MADE BY MR. JUSTICE BRANDEIS IN HIS CONCURRING OPINION IN WHITNEY
V. CALIFORNIA, 274 U.S. 357, 376-377, 

"FEAR OF SERIOUS INJURY CANNOT ALONE JUSTIFY SUPPRESSION OF FREE
SPEECH AND ASSEMBLY.  MEN FEARED WITCHES AND BURNT WOMEN.  IT IS THE
FUNCTION OF SPEECH TO FREE MEN FROM THE BONDAGE OF IRRATIONAL FEARS. 
TO JUSTIFY SUPPRESSION OF FREE SPEECH THERE MUST BE REASONABLE GROUND
TO FEAR THAT SERIOUS EVIL WILL RESULT IF FREE SPEECH IS PRACTICED. 
THERE MUST BE REASONABLE GROUND TO BELIEVE THAT THE DANGER APPREHENDED
IS IMMINENT.  THERE MUST BE REASONABLE GROUND TO BELIEVE THAT THE EVIL
TO BE PREVENTED IS A SERIOUS ONE.  EVERY DENUNCIATION OF EXISTING LAW
TENDS IN SOME MEASURE TO INCREASE THE PROBABILITY THAT THERE WILL BE
VIOLATION OF IT.  CONDONATION OF A BREACH ENHANCES THE PROBABILITY. 
EXPRESSIONS OF APPROVAL ADD TO THE PROBABILITY.  PROPAGATION OF THE
CRIMINAL STATE OF MIND BY TEACHING SYNDICALISM INCREASES IT.  ADVOCACY
OF LAW-BREAKING HEIGHTENS IT STILL FURTHER.  BUT EVEN ADVOCACY OF
VIOLATION, HOWEVER REPREHENSIBLE MORALLY, IS NOT A JUSTIFICATION FOR
DENYING FREE SPEECH WHERE THE ADVOCACY FALLS SHORT OF INCITEMENT AND
THERE IS NOTHING TO INDICATE THAT THE ADVOCACY WOULD BE IMMEDIATELY
ACTED ON.  THE WIDE DIFFERENCE BETWEEN ADVOCACY AND INCITEMENT, BETWEEN
PREPARATION AND ATTEMPT, BETWEEN ASSEMBLING AND CONSPIRACY, MUST BE
BORNE IN MIND.  IN ORDER TO SUPPORT A FINDING OF CLEAR AND PRESENT
DANGER IT MUST BE SHOWN EITHER THAT IMMEDIATE SERIOUS VIOLENCE WAS TO
BE EXPECTED OR WAS ADVOCATED, OR THAT THE PAST CONDUCT FURNISHED REASON
TO BELIEVE THAT SUCH ADVOCACY WAS THEN CONTEMPLATED.    "THOSE WHO WON
OUR INDEPENDENCE BY REVOLUTION WERE NOT COWARDS.  THEY DID NOT FEAR
POLITICAL CHANGE.  THEY DID NOT EXALT ORDER AT THE COST OF LIBERTY.  TO
COURAGEOUS, SELF-RELIANT MEN, WITH CONFIDENCE IN THE POWER OF FREE AND
FEARLESS REASONING APPLIED THROUGH THE PROCESSES OF POPULAR GOVERNMENT,
NO DANGER FLOWING FROM SPEECH CAN BE DEEMED CLEAR AND PRESENT, UNLESS
THE INCIDENCE OF THE EVIL APPREHENDED IS SO IMMINENT THAT IT MAY BEFALL
BEFORE THERE IS OPPORTUNITY FOR FULL DISCUSSION.  IF THERE BE TIME TO
EXPOSE THROUGH DISCUSSION THE FALSEHOOD AND FALLACIES, TO AVERT THE
EVIL BY THE PROCESSES OF EDUCATION, THE REMEDY TO BE APPLIED IS MORE
SPEECH, NOT ENFORCED SILENCE." 

I HAD ASSUMED THAT THE QUESTION OF THE CLEAR AND PRESENT DANGER,
BEING SO CRITICAL AN ISSUE IN THE CASE, WOULD BE A MATTER FOR
SUBMISSION TO THE JURY.  IT WAS SQUARELY HELD IN PIERCE V. UNITED
STATES, 252 U.S. 239, 244, TO BE A JURY QUESTION.  MR. JUSTICE PITNEY,
SPEAKING FOR THE COURT, SAID, "WHETHER THE STATEMENT CONTAINED IN THE
PAMPHLET HAD A NATURAL TENDENCY TO PRODUCE THE FORBIDDEN CONSEQUENCES,
AS ALLEGED, WAS A QUESTION TO BE DETERMINED NOT UPON DEMURRER BUT BY
THE JURY AT THE TRIAL."  THAT IS THE ONLY TIME THE COURT HAS PASSED ON
THE ISSUE.  NONE OF OUR OTHER DECISIONS IS CONTRARY.  NOTHING SAID IN
ANY OF THE NONJURY CASES HAS DETRACTED FROM THAT RULING.  FN4  THE
STATEMENT IN PIERCE V. UNITED STATES, SUPRA, STATES THE LAW AS IT HAS
BEEN AND AS IT SHOULD BE.  THE COURT, I THINK, ERRS WHEN IT TREATS THE
QUESTION AS ONE OF LAW. 

YET, WHETHER THE QUESTION IS ONE FOR THE COURT OR THE JURY, THERE
SHOULD BE EVIDENCE OF RECORD ON THE ISSUE.  THIS RECORD, HOWEVER,
CONTAINS NO EVIDENCE WHATSOEVER SHOWING THAT THE ACTS CHARGED, VIZ.,
THE TEACHING OF THE SOVIET THEORY OF REVOLUTION WITH THE HOPE THAT IT
WILL BE REALIZED, HAVE CREATED ANY CLEAR AND PRESENT DANGER TO THE
NATION.  THE COURT, HOWEVER, RULES TO THE CONTRARY.  IT SAYS, "THE
FORMATION BY PETITIONERS OF SUCH A HIGHLY ORGANIZED CONSPIRACY, WITH
RIGIDLY DISCIPLINED MEMBERS SUBJECT TO CALL WHEN THE LEADERS, THESE
PETITIONERS, FELT THAT THE TIME HAD COME FOR ACTION, COUPLED WITH THE
INFLAMMABLE NATURE OF WORLD CONDITIONS, SIMILAR UPRISINGS IN OTHER
COUNTRIES, AND THE TOUCH-AND-GO NATURE OF OUR RELATIONS WITH COUNTRIES
WITH WHOM PETITIONERS WERE IN THE VERY LEAST IDEOLOGICALLY ATTUNED,
CONVINCE US THAT THEIR CONVICTIONS WERE JUSTIFIED ON THIS SCORE." 

THAT RULING IS IN MY VIEW NOT RESPONSIVE TO THE ISSUE IN THE CASE. 
WE MIGHT AS WELL SAY THAT THE SPEECH OF PETITIONERS IS OUTLAWED BECAUSE
SOVIET RUSSIA AND HER RED ARMY ARE A THREAT TO WORLD PEACE. 

THE NATURE OF COMMUNISM AS A FORCE ON THE WORLD SCENE WOULD, OF
COURSE, BE RELEVANT TO THE ISSUE OF CLEAR AND PRESENT DANGER OF
PETITIONERS' ADVOCACY WITHIN THE UNITED STATES.  BUT THE PRIMARY
CONSIDERATION IS THE STRENGTH AND TACTICAL POSITION OF PETITIONERS AND
THEIR CONVERTS IN THIS COUNTRY.  ON THAT THERE IS NO EVIDENCE IN THE
RECORD.  IF WE ARE TO TAKE JUDICIAL NOTICE OF THE THREAT OF COMMUNISTS
WITHIN THE NATION, IT SHOULD NOT BE DIFFICULT TO CONCLUDE THAT AS A
POLITICAL PARTY THEY ARE OF LITTLE CONSEQUENCE.  COMMUNISTS IN THIS
COUNTRY HAVE NEVER MADE A RESPECTABLE OR SERIOUS SHOWING IN ANY
ELECTION.  I WOULD DOUBT THAT THERE IS A VILLAGE, LET ALONE A CITY OR
COUNTY OR STATE, WHICH THE COMMUNISTS COULD CARRY.  COMMUNISM IN THE
WORLD SCENE IS NO BOGEYMAN; BUT COMMUNISM AS A POLITICAL FACTION OR
PARTY IN THIS COUNTRY PLAINLY IS.  COMMUNISM HAS BEEN SO THOROUGHLY
EXPOSED IN THIS COUNTRY THAT IT HAS BEEN CRIPPLED AS A POLITICAL
FORCE.  FREE SPEECH HAS DESTROYED IT AS AN EFFECTIVE POLITICAL PARTY. 
IT IS INCONCEIVABLE THAT THOSE WHO WENT UP AND DOWN THIS COUNTRY
PREACHING THE DOCTRINE OF REVOLUTION WHICH PETITIONERS ESPOUSE WOULD
HAVE ANY SUCCESS.  IN DAYS OF TROUBLE AND CONFUSION, WHEN BREAD LINES
WERE LONG, WHEN THE UNEMPLOYED WALKED THE STREETS, WHEN PEOPLE WERE
STARVING, THE ADVOCATES OF A SHORT-CUT BY REVOLUTION MIGHT HAVE A
CHANCE TO GAIN ADHERENTS.  BUT TODAY THERE ARE NO SUCH CONDITIONS.  THE
COUNTRY IS NOT IN DESPAIR; THE PEOPLE KNOW SOVIET COMMUNISM; THE
DOCTRINE OF SOVIET REVOLUTION IS EXPOSED IN ALL OF ITS UGLINESS AND THE
AMERICAN PEOPLE WANT NONE OF IT. 

HOW IT CAN BE SAID THAT THERE IS A CLEAR AND PRESENT DANGER THAT THIS
ADVOCACY WILL SUCCEED IS, THEREFORE, A MYSTERY.  SOME NATIONS LESS
RESILIENT THAN THE UNITED STATES, WHERE ILLITERACY IS HIGH AND WHERE
DEMOCRATIC TRADITIONS ARE ONLY BUDDING, MIGHT HAVE TO TAKE DRASTIC
STEPS AND JAIL THESE MEN FOR MERELY SPEAKING THEIR CREED.  BUT IN
AMERICA THEY ARE MISERABLE MERCHANTS OF UNWANTED IDEAS; THEIR WARES
REMAIN UNSOLD.  THE FACT THAT THEIR IDEAS ARE ABHORRENT DOES NOT MAKE
THEM POWERFUL. 

THE POLITICAL IMPOTENCE OF THE COMMUNISTS IN THIS COUNTRY DOES NOT,
OF COURSE, DISPOSE OF THE PROBLEM.  THEIR NUMBERS; THEIR POSITIONS IN
INDUSTRY AND GOVERNMENT; THE EXTENT TO WHICH THEY HAVE IN FACT
INFILTRATED THE POLICE, THE ARMED SERVICES, TRANSPORTATION,
STEVEDORING, POWER PLANTS, MUNITIONS WORKS, AND OTHER CRITICAL PLACES -
THESE FACTS ALL BEAR ON THE LIKELIHOOD THAT THEIR ADVOCACY OF THE
SOVIET THEORY OF REVOLUTION WILL ENDANGER THE REPUBLIC.  BUT THE RECORD
IS SILENT ON THESE FACTS.  IF WE ARE TO PROCEED ON THE BASIS OF
JUDICIAL NOTICE, IT IS IMPOSSIBLE FOR ME TO SAY THAT THE COMMUNISTS IN
THIS COUNTRY ARE SO POTENT OR SO STRATEGICALLY DEPLOYED THAT THEY MUST
BE SUPPRESSED FOR THEIR SPEECH.  I COULD NOT SO HOLD UNLESS I WERE
WILLING TO CONCLUDE THAT THE ACTIVITIES IN RECENT YEARS OF COMMITTEES
OF CONGRESS, OF THE ATTORNEY GENERAL, OF LABOR UNIONS, OF STATE
LEGISLATURES, AND OF LOYALTY BOARDS WERE SO FUTILE AS TO LEAVE THE
COUNTRY ON THE EDGE OF GRAVE PERIL.  TO BELIEVE THAT PETITIONERS AND
THEIR FOLLOWING ARE PLACED IN SUCH CRITICAL POSITIONS AS TO ENDANGER
THE NATION IS TO BELIEVE THE INCREDIBLE.  IT IS SAFE TO SAY THAT THE
FOLLOWERS OF THE CREED OF SOVIET COMMUNISM ARE KNOWN TO THE F.B.I.;
THAT IN CASE OF WAR WITH RUSSIA THEY WILL BE PICKED UP OVERNIGHT AS
WERE ALL PROSPECTIVE SABOTEURS AT THE COMMENCEMENT OF WORLD WAR II;
THAT THE INVISIBLE ARMY OF PETITIONERS IS THE BEST KNOWN, THE MOST
BESET, AND THE LEAST THRIVING OF ANY FIFTH COLUMN IN HISTORY.  ONLY
THOSE HELD BY FEAR AND PANIC COULD THINK OTHERWISE. 

THIS IS MY VIEW IF WE ARE TO ACT ON THE BASIS OF JUDICIAL NOTICE. 
BUT THE MERE STATEMENT OF THE OPPOSING VIEWS INDICATES HOW IMPORTANT IT
IS THAT WE KNOW THE FACTS BEFORE WE ACT.  NEITHER PREJUDICE NOR HATE
NOR SENSELESS FEAR SHOULD BE THE BASIS OF THIS SOLEMN ACT.  FREE SPEECH
- THE GLORY OF OUR SYSTEM OF GOVERNMENT - SHOULD NOT BE SACRIFICED ON
ANYTHING LESS THAN PLAIN AND OBJECTIVE PROOF OF DANGER THAT THE EVIL
ADVOCATED IS IMMINENT.  ON THIS RECORD NO ONE CAN SAY THAT PETITIONERS
AND THEIR CONVERTS ARE IN SUCH A STRATEGIC POSITION AS TO HAVE EVEN THE
SLIGHTEST CHANCE OF ACHIEVING THEIR AIMS. 

THE FIRST AMENDMENT PROVIDES THAT "CONGRESS SHALL MAKE NO LAW  ...
ABRIDGING THE FREEDOM OF SPEECH."  THE CONSTITUTION PROVIDES NO
EXCEPTION.  THIS DOES NOT MEAN, HOWEVER, THAT THE NATION NEED HOLD ITS
HAND UNTIL IT IS IN SUCH WEAKENED CONDITION THAT THERE IS NO TIME TO
PROTECT ITSELF FROM INCITEMENT TO REVOLUTION.  SEDITIOUS CONDUCT CAN
ALWAYS BE PUNISHED.  BUT THE COMMAND OF THE FIRST AMENDMENT IS SO CLEAR
THAT WE SHOULD NOT ALLOW CONGRESS TO CALL A HALT TO FREE SPEECH EXCEPT
IN THE EXTREME CASE OF PERIL FROM THE SPEECH ITSELF.  THE FIRST
AMENDMENT MAKES CONFIDENCE IN THE COMMON SENSE OF OUR PEOPLE AND IN
THEIR MATURITY OF JUDGMENT THE GREAT POSTULATE OF OUR DEMOCRACY.  ITS
PHILOSOPHY IS THAT VIOLENCE IS RARELY, IF EVER, STOPPED BY DENYING
CIVIL LIBERTIES TO THOSE ADVOCATING RESORT TO FORCE.  THE FIRST
AMENDMENT REFLECTS THE PHILOSOPHY OF JEFFERSON "THAT IT IS TIME ENOUGH
FOR THE RIGHTFUL PURPOSES OF CIVIL GOVERNMENT, FOR ITS OFFICERS TO
INTERFERE WHEN PRINCIPLES BREAK OUT INTO OVERT ACTS AGAINST PEACE AND
GOOD ORDER."  FN5  THE POLITICAL CENSOR HAS NO PLACE IN OUR PUBLIC
DEBATES.  UNLESS AND UNTIL EXTREME AND NECESSITOUS CIRCUMSTANCES ARE
SHOWN, OUR AIM SHOULD BE TO KEEP SPEECH UNFETTERED AND TO ALLOW THE
PROCESSES OF LAW TO BE INVOKED ONLY WHEN THE PROVOCATEURS AMONG US MOVE
FROM SPEECH TO ACTION. 

VISHINSKY WROTE IN 1938 IN THE LAW OF THE SOVIET STATE, "IN OUR
STATE, NATURALLY, THERE IS AND CAN BE NO PLACE FOR FREEDOM OF SPEECH,
PRESS, AND SO ON FOR THE FOES OF SOCIALISM." 

OUR CONCERN SHOULD BE THAT WE ACCEPT NO SUCH STANDARD FOR THE UNITED
STATES.  OUR FAITH SHOULD BE THAT OUR PEOPLE WILL NEVER GIVE SUPPORT TO
THESE ADVOCATES OF REVOLUTION, SO LONG AS WE REMAIN LOYAL TO THE
PURPOSES FOR WHICH OUR NATION WAS FOUNDED. 

FN1  18 U.S.C. SEC. 2384 PROVIDES:  "IF TWO OR MORE PERSONS IN ANY
STATE OR TERRITORY, OR IN ANY PLACE SUBJECT TO THE JURISDICTION OF THE
UNITED STATES, CONSPIRE TO OVERTHROW, PUT DOWN, OR TO DESTROY BY FORCE
THE GOVERNMENT OF THE UNITED STATES, OR TO LEVY WAR AGAINST THEM, OR TO
OPPOSE BY FORCE THE AUTHORITY THEREOF, OR BY FORCE TO PREVENT, HINDER,
OR DELAY THE EXECUTION OF ANY LAW OF THE UNITED STATES, OR BY FORCE TO
SEIZE, TAKE, OR POSSESS ANY PROPERTY OF THE UNITED STATES CONTRARY TO
THE AUTHORITY THEREOF, THEY SHALL EACH BE FINED NOT MORE THAN $5,000 OR
IMPRISONED NOT MORE THAN SIX YEARS, OR BOTH." 

FN2 54 STAT. 671, 18 U.S.C. SECS. 10, 11. 

FN3  OTHER BOOKS TAUGHT WERE STALIN, PROBLEMS OF LENINISM, STRATEGY
AND TACTICS OF WORLD COMMUNISM (H.R. DOC. NO. 619, 80TH CONG., 2D
SESS.), AND PROGRAM OF THE COMMUNIST INTERNATIONAL. 

FN4  THE CASES WHICH REACHED THE COURT ARE ANALYZED IN THE APPENDIX
ATTACHED TO THIS OPINION, POST, P. 591. 

FN5  12 HENING'S STAT. (VIRGINIA 1823), C. 34, P. 84.  WHIPPLE, OUR
ANCIENT LIBERTIES (1927), P. 95, STATES:  "THIS IDEA THAT THE LIMIT ON
FREEDOM OF SPEECH OR PRESS SHOULD BE SET ONLY BY AN ACTUAL OVERT ACT
WAS NOT NEW.  IT HAD BEEN ASSERTED BY A LONG LINE OF DISTINGUISHED
THINKERS INCLUDING JOHN LOCKE, MONTESQUIEU IN HIS THE SPIRIT OF THE
LAWS ('WORDS DO NOT CONSTITUTE AN OVERT ACT'), THE REV. PHILLIP
FURNEAUX, JAMES MADISON, AND THOMAS JEFFERSON." 

             APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. 

THERE HAVE BEEN NUMEROUS FIRST AMENDMENT CASES BEFORE THE COURT
RAISING THE ISSUE OF CLEAR AND PRESENT DANGER SINCE MR. JUSTICE HOLMES
FIRST FORMULATED THE TEST IN SCHENCK V. UNITED STATES, 249 U.S. 47,
52.  MOST OF THEM, HOWEVER, HAVE NOT INVOLVED JURY TRIALS. 

THE CASES WHICH MAY BE DEEMED AT ALL RELEVANT TO OUR PROBLEM CAN BE
CLASSIFIED AS FOLLOWS: 

CONVICTIONS FOR CONTEMPT OF COURT (NON-JURY):  NEAR V. MINNESOTA, 283
U.S. 697; BRIDGES V. CALIFORNIA, 314 U.S. 252; THOMAS V. COLLINS, 323
U.S. 516; PENNEKAMP V. FLORIDA, 328 U.S. 331; CRAIG V. HARNEY, 331 U.S.
367. 

CONVICTIONS BY STATE COURTS SITTING WITHOUT JURIES, GENERALLY FOR
VIOLATIONS OF LOCAL ORDINANCES:  LOVELL V. GRIFFIN, 303 U.S. 444;
SCHNEIDER V. STATE, 308 U.S. 147; CANTWELL V. CONNECTICUT, 310 U.S.
296; MARSH V. ALABAMA, 326 U.S. 501; TUCKER V. TEXAS, 326 U.S. 517;
WINTERS V. NEW YORK, 333 U.S. 507; SAIA V. NEW YORK, 334 U.S. 558;
KOVACS V. COOPER, 336 U.S. 77; KUNZ V. NEW YORK, 340 U.S. 290; FEINER
V. NEW YORK, 340 U.S. 315. 

INJUNCTIONS AGAINST ENFORCEMENT OF STATE OR LOCAL LAWS (NON-JURY):
GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; HAGUE V. C.I.O., 307 U.S.
496; MINERSVILLE SCHOOL DISTRICT V. GOBITIS, 310 U.S. 586; WEST
VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624. 

ADMINISTRATIVE PROCEEDINGS (NON-JURY):  BRIDGES V. WIXON, 326 U.S.
135; SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118; AMERICAN
COMMUNICATIONS ASSOCIATION V. DOUDS, 339 U.S. 382. 

CASES TRIED BEFORE JURIES FOR VIOLATIONS OF STATE LAWS DIRECTED
AGAINST ADVOCACY OF ANARCHY, CRIMINAL SYNDICALISM, ETC.:  GILBERT V.
MINNESOTA, 254 U.S. 325; GITLOW V. NEW YORK, 268 U.S. 652; WHITNEY V.
CALIFORNIA, 274 U.S. 357; FISKE V. KANSAS, 274 U.S. 380; STROMBERG V.
CALIFORNIA, 283 U.S. 359; DE JONGE V. OREGON, 299 U.S. 353; HERNDON V.
LOWRY, 301 U.S. 242; TAYLOR V. MISSISSIPPI, 319 U.S. 583; OR FOR MINOR
LOCAL OFFENSES:  COX V. NEW HAMPSHIRE, 312 U.S. 569; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568; TERMINIELLO V. CHICAGO, 337 U.S. 1; NIEMOTKO
V. MARYLAND, 340 U.S. 268. 

FEDERAL PROSECUTIONS BEFORE JURIES UNDER THE ESPIONAGE ACT OF 1917
FOLLOWING WORLD WAR I: SCHENCK V. UNITED STATES, 249 U.S. 47; FROHWERK
V. UNITED STATES, 249 U.S. 204; DEBS V. UNITED STATES, 249 U.S. 211;
ABRAMS V. UNITED STATES, 250 U.S. 616; SCHAEFER V. UNITED STATES, 251
U.S. 466; PIERCE V. UNITED STATES, 252 U.S. 239.  PIERCE V. UNITED
STATES RULED THAT THE QUESTION OF CLEAR AND PRESENT DANGER WAS FOR THE
JURY.  IN THE OTHER CASES IN THIS GROUP THE QUESTION WHETHER THE ISSUE
WAS FOR THE COURT OR THE JURY WAS NOT RAISED OR PASSED UPON. 

FEDERAL PROSECUTION BEFORE A JURY UNDER THE ESPIONAGE ACT OF 1917
FOLLOWING WORLD WAR II: HARTZEL V. UNITED STATES, 322 U.S. 680.  THE
JURY WAS INSTRUCTED ON CLEAR AND PRESENT DANGER IN TERMS DRAWN FROM THE
LANGUAGE OF MR. JUSTICE HOLMES IN SCHENCK V. UNITED STATES, SUPRA, P.
52.  THE COURT REVERSED THE CONVICTION ON THE GROUND THAT THERE HAD NOT
BEEN SUFFICIENT EVIDENCE FOR SUBMISSION OF THE CASE TO THE JURY. 
..END :


















TIMKEN CO. V. UNITED STATES, 341 U.S. 593 


NO. 352.  ARGUED APRIL 24, 1951.  - DECIDED JUNE 4, 1951.  - 83 F.SUPP. 
284, MODIFIED AND AFFIRMED. 


IN A CIVIL ACTION BROUGHT BY THE UNITED STATES AGAINST APPELLANT, A
DOMESTIC CORPORATION, TO ENJOIN ALLEGED VIOLATIONS OF THE SHERMAN ACT,
THE COMPLAINT CHARGED THAT APPELLANT HAD COMBINED AND CONSPIRED WITH A
BRITISH CORPORATION AND A FRENCH CORPORATION, IN EACH OF WHICH IT HAD A
FINANCIAL INTEREST, TO RESTRAIN INTERSTATE AND FOREIGN COMMERCE IN THE
MANUFACTURE AND SALE OF ANTIFRICTION BEARINGS.  THE DISTRICT COURT
FOUND THAT UNDER AGREEMENTS BETWEEN THEM THE CORPORATIONS HAD ALLOCATED
TRADE TERRITORIES AMONG THEMSELVES; FIXED PRICES ON PRODUCTS OF ONE
SOLD IN THE TERRITORY OF THE OTHERS; COOPERATED TO PROTECT EACH OTHER'S
MARKETS AND TO ELIMINATE OUTSIDE COMPETITION; AND PARTICIPATED IN
CARTELS TO RESTRICT IMPORTS TO, AND EXPORTS FROM, THE UNITED STATES. 
THE COURT CONCLUDED THAT APPELLANT HAD VIOLATED THE SHERMAN ACT AS
CHARGED, AND ENTERED A COMPREHENSIVE DECREE DESIGNED TO BAR FUTURE
VIOLATIONS.  HELD: 

1.  THE DISTRICT COURT'S MATERIAL FINDINGS OF FACT ARE NOT "CLEARLY
ERRONEOUS," AND ARE ACCEPTED HERE.  FED. RULES CIV. PROC., 52(A).  PP.
596-597. 

2.  THE OPINION OF THE DISTRICT COURT SUFFICIENTLY COMPLIES WITH THE
REQUIREMENTS OF RULE 52(A) RELATIVE TO FINDINGS OF FACT AND CONCLUSIONS
OF LAW.  P. 597, N. 7. 

3.  AGREEMENTS BETWEEN LEGALLY SEPARATE PERSONS AND COMPANIES TO
SUPPRESS COMPETITION AMONG THEMSELVES CANNOT BE JUSTIFIED BY
CHARACTERIZING THE PROJECT AS A "JOINT VENTURE."  PP. 597-598. 

(A)  AGREEMENTS PROVIDING FOR AN AGGREGATION OF TRADE RESTRAINTS SUCH
AS THOSE EXISTING IN THIS CASE ARE PROHIBITED BY THE ACT, WHETHER OR
NOT INCIDENTAL TO A "JOINT VENTURE."  P. 598. 

(B)  COMMON OWNERSHIP OR CONTROL OF THE CONTRACTING CORPORATIONS DOES
NOT LIBERATE THEM FROM THE IMPACT OF THE ANTITRUST LAWS.  P. 598. 

4.  NOR CAN THE RESTRAINTS BE JUSTIFIED AS REASONABLE STEPS TAKEN TO
IMPLEMENT A VALID TRADEMARK LICENSING SYSTEM, SINCE THE TRADEMARK
PROVISIONS OF THE AGREEMENTS WERE SECONDARY TO THE CENTRAL PURPOSE OF
ALLOCATING TRADE TERRITORY, AND SINCE THE AGREEMENTS PROVIDED FOR
CONTROL OF THE MANUFACTURE AND SALE OF ANTIFRICTION BEARINGS WHETHER
CARRYING THE TRADEMARK OR NOT.  PP. 598-599. 

(A)  A TRADEMARK CANNOT LAWFULLY BE USED AS A DEVICE FOR VIOLATING
THE SHERMAN ACT, AND ITS USE THEREFOR IS PENALIZED BY THE TRADE MARK
ACT OF 1946.  P. 599. 

5.  THE SUGGESTION THAT WHAT APPELLANT HAS DONE IS REASONABLE IN VIEW
OF CURRENT FOREIGN TRADE CONDITIONS, AND THAT THEREFORE THE SHERMAN ACT
SHOULD NOT BE ENFORCED IN THIS CASE, IS REJECTED.  P. 599. 

6.  THE DECREE OF THE DISTRICT COURT PROPERLY ENJOINED CONTINUATION
OR REPETITION OF THE CONDUCT WHICH IT FOUND TO BE ILLEGAL.  P. 600. 

7.  THE RELIEF WHICH A DISTRICT COURT MAY GRANT IN A SHERMAN ACT CASE
NEED NOT BE CONFINED TO THE NARROW LIMITS OF THE PROVEN VIOLATION.  P.
600. 

8.  THE DISTRICT COURT SHOULD NOT HAVE ORDERED APPELLANT TO DIVEST
ITSELF OF ITS STOCKHOLDINGS AND ALL OTHER FINANCIAL INTERESTS IN THE
BRITISH AND FRENCH CORPORATIONS, AND THE DECREE IS MODIFIED SO AS TO
ELIMINATE PROVISIONS DIRECTED TO THAT END.  PP. 600-601. 

TIMKEN ROLLER BEARING CO. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO. 

IN A CIVIL ACTION BROUGHT BY THE UNITED STATES AGAINST APPELLANT, TO
RESTRAIN ALLEGED VIOLATIONS OF THE SHERMAN ACT, THE DISTRICT COURT
FOUND THAT APPELLANT HAD VIOLATED THE ACT AND A DECREE OF INJUNCTION
WAS ENTERED.  83 F.SUPP.  284.  ON DIRECT APPEAL TO THIS COURT, THE
DECREE IS MODIFIED AND, AS MODIFIED, AFFIRMED, P. 601. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS CIVIL ACTION TO PREVENT AND RESTRAIN
VIOLATIONS OF THE SHERMAN ACT  FN1  BY APPELLANT, TIMKEN ROLLER BEARING
CO., AN OHIO CORPORATION.  THE COMPLAINT CHARGED THAT APPELLANT, IN
VIOLATION OF SECS. 1 AND 3 OF THE ACT,  FN2  COMBINED, CONSPIRED AND
ACTED WITH BRITISH TIMKEN, LTD. (BRITISH TIMKEN), AND SOCIETE ANONYME
FRANCAISE TIMKEN (FRENCH TIMKEN) TO RESTRAIN INTERSTATE AND FOREIGN
COMMERCE BY ELIMINATING COMPETITION IN THE MANUFACTURE AND SALE OF
ANTIFRICTION BEARINGS IN THE MARKETS OF THE WORLD.  AFTER A TRIAL OF
MORE THAN A MONTH THE DISTRICT COURT MADE DETAILED FINDINGS OF FACT
WHICH MAY BE SUMMARIZED AS FOLLOWS: 

AS EARLY AS 1909 APPELLANT AND BRITISH TIMKEN'S PREDECESSOR HAD MADE
COMPREHENSIVE AGREEMENTS PROVIDING FOR A TERRITORIAL DIVISION OF THE
WORLD MARKETS FOR ANTIFRICTION BEARINGS.  THESE ARRANGEMENTS WERE
SOMEWHAT MODIFIED AND EXTENDED IN 1920, 1924 AND 1925.  AGAIN IN 1927
THE AGREEMENTS WERE SUBSTANTIALLY RENEWED IN CONNECTION WITH A
TRANSACTION BY WHICH APPELLANT AND ONE DEWAR, AN ENGLISH BUSINESSMAN,
COOPERATED IN PURCHASING ALL THE STOCK OF BRITISH TIMKEN.  LATER SOME
BRITISH TIMKEN STOCK WAS SOLD TO THE PUBLIC WITH THE RESULT THAT
APPELLANT NOW HOLDS ABOUT 30% OF THE OUTSTANDING SHARES WHILE DEWAR
OWNS ABOUT 24%.  FN3  IN 1928 APPELLANT AND DEWAR ORGANIZED FRENCH
TIMKEN AND SINCE THAT DATE HAVE TOGETHER OWNED ALL THE STOCK IN THE
FRENCH COMPANY.  BEGINNING IN THAT YEAR, APPELLANT, BRITISH TIMKEN AND
FRENCH TIMKEN HAVE CONTINUOUSLY KEPT OPERATIVE "BUSINESS AGREEMENTS"
REGULATING THE MANUFACTURE AND SALE OF ANTIFRICTION BEARINGS BY THE
THREE COMPANIES AND PROVIDING FOR THE USE BY THE BRITISH AND FRENCH
CORPORATIONS OF THE TRADEMARK "TIMKEN."  FN4  UNDER THESE AGREEMENTS
THE CONTRACTING PARTIES HAVE (1) ALLOCATED TRADE TERRITORIES AMONG
THEMSELVES; (2) FIXED PRICES ON PRODUCTS OF ONE SOLD IN THE TERRITORY
OF THE OTHERS; (3) COOPERATED TO PROTECT EACH OTHER'S MARKETS AND TO
ELIMINATE OUTSIDE COMPETITION; AND (4) PARTICIPATED IN CARTELS TO
RESTRICT IMPORTS TO, AND EXPORTS FROM, THE UNITED STATES. 

ON THESE FINDINGS, THE DISTRICT COURT CONCLUDED THAT APPELLANT HAD
VIOLATED THE SHERMAN ACT AS CHARGED, AND ENTERED A COMPREHENSIVE DECREE
DESIGNED TO BAR FUTURE VIOLATIONS.  83 F.SUPP.  284.  THE CASE IS
BEFORE US ON APPELLANT'S DIRECT APPEAL UNDER 15 U.S.C. SEC. 29. 

ALTHOUGH APPELLANT HAS INDISCRIMINATELY CHALLENGED THE DISTRICT
COURT'S JUDGMENT AND DECREE IN OVER 200 SEPARATE ASSIGNMENTS OF ERROR,
THE REAL GROUNDS RELIED ON FOR REVERSAL ARE ONLY A FEW IN NUMBER.  FN5
IN THE FIRST PLACE, APPELLANT CONTENDS THAT MOST OF THE DISTRICT
COURT'S MATERIAL FINDINGS OF FACT ARE WITHOUT EVIDENTIAL SUPPORT, THAT
THEY "IGNORE OR FAIL PROPERLY TO EVALUATE" EVIDENCE SUPPORTING
APPELLANT'S POSITION, AND THAT IT WAS ERROR FOR THE COURT TO REFUSE TO
MAKE ADDITIONAL FINDINGS.  FOR THE MOST PART, THIS SHOTGUN APPROACH IS
ACTUALLY ONLY A DISPUTE AS TO THE PROPER INFERENCES TO BE DRAWN FROM
THE EVIDENCE IN THE RECORD; FN6  IN EFFECT, IT IS AN INVITATION FOR US
TO TRY THE CASE DE NOVO.  THIS COURT MUST DECLINE SUCH AN INVITATION
JUST AS IT DOES WHEN THE GOVERNMENT MAKES THE SAME REQUEST.  UNITED
STATES V. YELLOW CAB CO., 338 U.S. 338.  IN THE PRESENT CASE, THE TRIAL
JUDGE AFTER A PATIENT HEARING CAREFULLY ANALYZED THE EVIDENCE IN AN
OPINION PREPARED WITH OBVIOUS CARE.  FN7  APPELLANT'S LENGTHY BRIEF HAS
FAILED TO ESTABLISH THAT THERE WAS ERROR IN MAKING ANY CRUCIAL, OR EVEN
IMPORTANT, ULTIMATE OR SUBSIDIARY FINDING.  SINCE WE CANNOT SAY THE
FINDINGS ARE "CLEARLY ERRONEOUS," WE ACCEPT THEM.  FED. RULES CIV.
PROC., 52(A). 

APPELLANT NEXT CONTENDS THAT THE RESTRAINTS OF TRADE SO CLEARLY
REVEALED BY THE DISTRICT COURT'S FINDINGS CAN BE JUSTIFIED AS
"REASONABLE," AND THEREFORE NOT IN VIOLATION OF THE SHERMAN ACT,
BECAUSE THEY ARE "ANCILLARY" TO ALLEGEDLY "LEGAL MAIN TRANSACTIONS,"
NAMELY, (1) A "JOINT VENTURE" BETWEEN APPELLANT AND DEWAR, AND (2) AN
EXERCISE OF APPELLANT'S RIGHT TO LICENSE THE TRADEMARK "TIMKEN." 

WE CANNOT ACCEPT THE "JOINT VENTURE" CONTENTION.  THAT THE TRADE
RESTRAINTS WERE MERELY INCIDENTAL TO AN OTHERWISE LEGITIMATE "JOINT
VENTURE" IS, TO SAY THE LEAST, DOUBTFUL.  THE DISTRICT COURT FOUND THAT
THE DOMINANT PURPOSE OF THE RESTRICTIVE AGREEMENTS INTO WHICH
APPELLANT, BRITISH TIMKEN AND FRENCH TIMKEN ENTERED WAS TO AVOID ALL
COMPETITION EITHER AMONG THEMSELVES OR WITH OTHERS.  REGARDLESS OF
THIS, HOWEVER, APPELLANT'S ARGUMENT MUST BE REJECTED.  OUR PRIOR
DECISIONS PLAINLY ESTABLISH THAT AGREEMENTS PROVIDING FOR AN
AGGREGATION OF TRADE RESTRAINTS SUCH AS THOSE EXISTING IN THIS CASE ARE
ILLEGAL UNDER THE ACT.  KIEFER-STEWART CO. V. SEAGRAM & SONS, 340 U.S.
211, 213; UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 223-224
AND NOTE 59; UNITED STATES V. NATIONAL LEAD CO., 63 F.SUPP.  513,
AFFIRMED, 332 U.S. 319; UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S.
106, 180-184; ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 15.  SEE
ALSO UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 439-445. 
THE FACT THAT THERE IS COMMON OWNERSHIP OR CONTROL OF THE CONTRACTING
CORPORATIONS DOES NOT LIBERATE THEM FROM THE IMPACT OF THE ANTITRUST
LAWS.  E.G., KEIFER-STEWART CO. V. SEAGRAM & SONS, SUPRA AT 215.  NOR
DO WE FIND ANY SUPPORT IN REASON OR AUTHORITY FOR THE PROPOSITION THAT
AGREEMENTS BETWEEN LEGALLY SEPARATE PERSONS AND COMPANIES TO SUPPRESS
COMPETITION AMONG THEMSELVES AND OTHERS CAN BE JUSTIFIED BY LABELING
THE PROJECT A "JOINT VENTURE."  PERHAPS EVERY AGREEMENT AND COMBINATION
TO RESTRAIN TRADE COULD BE SO LABELED. 

NOR CAN THE RESTRAINTS OF TRADE BE JUSTIFIED AS REASONABLE STEPS
TAKEN TO IMPLEMENT A VALID TRADEMARK LICENSING SYSTEM, EVEN IF WE
ASSUME WITH APPELLANT THAT IT IS THE OWNER OF THE TRADEMARK "TIMKEN" IN
THE TRADE AREAS ALLOCATED TO THE BRITISH AND FRENCH CORPORATIONS. 
APPELLANT'S PREMISE THAT THE TRADE RESTRAINTS ARE ONLY INCIDENTAL TO
THE TRADEMARK CONTRACTS IS REFUTED BY THE DISTRICT COURT'S FINDING THAT
THE "TRADE MARK PROVISIONS (IN THE AGREEMENTS) WERE SUBSIDIARY AND
SECONDARY TO THE CENTRAL PURPOSE OF ALLOCATING TRADE TERRITORIES." 
FURTHERMORE, WHILE A TRADEMARK MERELY AFFORDS PROTECTION TO A NAME, THE
AGREEMENTS IN THE PRESENT CASE WENT FAR BEYOND PROTECTION OF THE NAME
"TIMKEN" AND PROVIDED FOR CONTROL OF THE MANUFACTURE AND SALE OF
ANTIFRICTION BEARINGS WHETHER CARRYING THE MARK OR NOT.  A TRADEMARK
CANNOT BE LEGALLY USED AS A DEVICE FOR SHERMAN ACT VIOLATION.  INDEED,
THE TRADE MARK ACT OF 1946 ITSELF PENALIZES USE OF A MARK "TO VIOLATE
THE ANTITRUST LAWS OF THE UNITED STATES."  FN8 

WE ALSO REJECT THE SUGGESTION THAT THE SHERMAN ACT SHOULD NOT BE
ENFORCED IN THIS CASE BECAUSE WHAT APPELLANT HAS DONE IS REASONABLE IN
VIEW OF CURRENT FOREIGN TRADE CONDITIONS.  THE ARGUMENT IN THIS REGARD
SEEMS TO BE THAT TARIFFS, QUOTA RESTRICTIONS AND THE LIKE ARE NOW SUCH
THAT THE EXPORT AND IMPORT OF ANTIFRICTION BEARINGS CAN NO LONGER BE
EXPECTED AS A PRACTICAL MATTER; THAT APPELLANT CANNOT SUCCESSFULLY SELL
ITS AMERICAN-MADE GOODS ABROAD; AND THAT THE ONLY WAY IT CAN PROFIT
FROM BUSINESS IN ENGLAND, FRANCE AND OTHER COUNTRIES IS THROUGH THE
OWNERSHIP OF STOCK IN COMPANIES ORGANIZED AND MANUFACTURING THERE. 
THIS POSITION IGNORES THE FACT THAT THE PROVISIONS IN THE SHERMAN ACT
AGAINST RESTRAINTS OF FOREIGN TRADE ARE BASED ON THE ASSUMPTION, AND
REFLECT THE POLICY, THAT EXPORT AND IMPORT TRADE IN COMMODITIES IS BOTH
POSSIBLE AND DESIRABLE.  THOSE PROVISIONS OF THE ACT ARE WHOLLY
INCONSISTENT WITH APPELLANT'S ARGUMENT THAT AMERICAN BUSINESS MUST BE
LEFT FREE TO PARTICIPATE IN INTERNATIONAL CARTELS, THAT FREE FOREIGN
COMMERCE IN GOODS MUST BE SACRIFICED IN ORDER TO FOSTER EXPORT OF
AMERICAN DOLLARS FOR INVESTMENT IN FOREIGN FACTORIES WHICH SELL
ABROAD.  ACCEPTANCE OF APPELLANT'S VIEW WOULD MAKE THE SHERMAN ACT A
DEAD LETTER INSOFAR AS IT PROHIBITS CONTRACTS AND CONSPIRACIES IN
RESTRAINT OF FOREIGN TRADE.  IF SUCH A DRASTIC CHANGE IS TO BE MADE IN
THE STATUTE, CONGRESS IS THE ONE TO DO IT. 

FINALLY, APPELLANT ATTACKS THE DISTRICT COURT'S DECREE AS BEING TOO
BROAD IN SCOPE.  THE DECREE ENJOINS CONTINUATION OR REPETITION OF THE
CONDUCT FOUND ILLEGAL.  THIS IS CLEARLY CORRECT.  ETHYL GASOLINE CORP.
V. UNITED STATES, 309 U.S. 436, 461.  IT ALSO CONTAINS CERTAIN OTHER
RESTRAINING PROVISIONS WHICH WERE WITHIN THE COURT'S DISCRETION BECAUSE
"RELIEF, TO BE EFFECTIVE, MUST GO BEYOND THE NARROW LIMITS OF THE
PROVEN VIOLATION."  UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S.
76, 90.  THE MOST VIGOROUS OBJECTION, HOWEVER, IS MADE TO THOSE
PORTIONS OF THE DECREE RELATING TO DIVESTITURE OF APPELLANT'S
STOCKHOLDINGS AND OTHER FINANCIAL INTERESTS IN BRITISH AND FRENCH
TIMKEN. 

MR. JUSTICE DOUGLAS, MR. JUSTICE MINTON AND I BELIEVE THAT THE DECREE
PROPERLY ORDERED DIVESTITURE.  OUR VIEWS ON THIS POINT ARE AS FOLLOWS:
APPELLANT'S INTERESTS IN THE BRITISH AND FRENCH COMPANIES WERE OBTAINED
AS PART OF A PLAN TO PROMOTE THE ILLEGAL TRADE RESTRAINTS.  IF NOT
SEVERED, THE INTERCOMPANY RELATIONSHIPS WILL PROVIDE IN THE FUTURE, AS
THEY HAVE IN THE PAST, THE TEMPTATION AND MEANS TO ENGAGE IN THE
PROHIBITED CONDUCT.  THESE CONSIDERATIONS ALONE SHOULD BE ENOUGH TO
SUPPORT THE DIVESTITURE ORDER.  UNITED STATES V. PARAMOUNT PICTURES,
INC., 334 U.S. 131, 152-153; UNITED STATES V. NATIONAL LEAD CO., 332
U.S. 319, 363.  BUT THERE ARE OTHER CONSIDERATIONS AS WELL.  THE DECREE
SHOULD NOT BE OVERTURNED UNLESS WE CAN SAY THAT THE DISTRICT COURT
ABUSED ITS DISCRETION.  ABSENT DIVESTITURE, IT IS DIFFICULT TO SEE
WHERE OTHER PARTS OF THE DECREE FORBIDDING TRADE RESTRAINTS WOULD ADD
MUCH TO WHAT THE SHERMAN ACT BY ITSELF ALREADY PROHIBITS.  FN9  AND
OBVIOUSLY THE MOST EFFECTIVE WAY TO SUPPRESS FURTHER SHERMAN ACT
VIOLATIONS IS TO END THE INTERCORPORATE RELATIONSHIP WHICH HAS BEEN THE
CORE OF THE CONSPIRACY.  FOR THESE REASONS, MR. JUSTICE DOUGLAS, MR.
JUSTICE MINTON AND I CANNOT SAY THAT THE DISTRICT COURT ABUSED ITS
DISCRETION IN ORDERING DIVESTITURE.  FN10 

NEVERTHELESS, A MAJORITY OF THIS COURT, FOR REASONS SET FORTH IN
OTHER OPINIONS FILED IN THIS CASE, BELIEVE THAT DIVESTITURE SHOULD NOT
HAVE BEEN ORDERED BY THE DISTRICT COURT.  THEREFORE, IT BECOMES
NECESSARY TO STRIKE FROM THE DECREE SECS. VIII, IVB, AND THE PHRASE "OR
B" IN SEC. IVC.  AS SO MODIFIED, THE JUDGMENT OF THE DISTRICT COURT IS
AFFIRMED.  IT IS SO ORDERED. 

FN1  26 STAT. 209, 15 U.S.C. SECS. 1-4. 

FN2  THESE SECTIONS DECLARE ILLEGAL ALL CONTRACTS, COMBINATIONS OR
CONSPIRACIES IN RESTRAINT OF TRADE OR COMMERCE AMONG THE STATES AND
TERRITORIES OR WITH FOREIGN NATIONS. 

FN3  DEWAR DIED WHILE THE APPEAL IN THIS CASE WAS PENDING.  SEE NOTE
10, INFRA. 

FN4  THE MOST RECENT OF THESE AGREEMENTS, WHICH WAS TO HAVE GOVERNED
THE CONDUCT OF THE PARTIES UNTIL 1965, IS DATED NOVEMBER 28, 1938. 

FN5  APPELLANT ORIGINALLY ATTACKED THE DECISION BELOW IN 206
ASSIGNMENTS OF ERROR, INCLUDING 69 ALLEGED ERRORS IN THE DISTRICT
COURT'S FINDINGS OF FACT, 26 IN ITS CONCLUSIONS OF LAW, AND 62 BASED ON
THE COURT'S REFUSAL TO MAKE NEW AND ADDITIONAL FINDINGS.  (LATER
APPELLANT ABANDONED 5 OF THE ASSIGNMENTS.)  THESE ASSIGNMENTS ARE
UNDULY REPETITIOUS, SOME ARE FRIVOLOUS, AND THE EXCESSIVE NUMBER
OBSCURES THE ACTUAL GROUNDS ON WHICH APPELLANT RELIES FOR REVERSAL.  AS
THE GOVERNMENT POINTED OUT IN ITS MOTION TO DISMISS THE APPEAL, OUR
PRIOR CASES JUSTIFY DISMISSAL IN SUCH SITUATIONS.  SEE LOCAL 167 V.
UNITED STATES, 291 U.S. 293, 296; PHILLIPS & COLBY CONSTRUCTION CO. V.
SEYMOUR, 91 U.S. 646, 648.  WE DO NOT TAKE THAT ACTION, HOWEVER, SINCE
APPELLANT IN ITS BRIEF OPPOSING THE GOVERNMENT'S MOTION HAS
SUFFICIENTLY SPELLED OUT THE FEW REAL OBJECTIONS IT RAISES HERE. 

FN6  THIS IS WELL ILLUSTRATED BY THE FOLLOWING PORTION OF THE
"SUMMARY OF ARGUMENT" WHICH APPEARS IN THE APPELLANT'S BRIEF:  "THE
EVIDENCE RELIED UPON BY THE DISTRICT COURT AS DEMONSTRATING CONDUCT OF
AN INTENTIONAL RESTRAINT OF TRADE BY THE THREE TIMKEN COMPANIES FROM
1928 ON IS JUST AS RECONCILABLE WITH THE CONDUCT OF A LEGAL JOINT
ADVENTURE AS WITH THE CONDUCT OF A COMBINATION FOR THE PURPOSE OF
SUPPRESSING COMPETITION AND CONTROLLING WORLD TRADE IN TAPERED ROLLER
BEARINGS, AND THEREFORE THE DISTRICT COURT'S DECISION TO THE CONTRARY
IS CLEARLY ERRONEOUS."  BRIEF FOR APPELLANT, PP. 78-79. 

FN7  APPELLANT CLAIMS THE DISTRICT COURT'S FINDINGS OF FACT AND
CONCLUSIONS OF LAW FAILED TO COMPLY WITH RULE 52(A) OF THE FEDERAL
RULES OF CIVIL PROCEDURE.  WE THINK THAT THE OPINION BELOW MEETS ALL
THE REQUIREMENTS OF THE RULE.    FN8  60 STAT. 427, 439, SEC. 33(B)(7),
15 U.S.C. SECS. 1051, 1115(B)(7).  THE REASON FOR THE PENALTY PROVISION
WAS THAT "TRADE-MARKS HAVE BEEN MISUSED.  ...  HAVE BEEN USED IN
CONNECTION WITH CARTEL AGREEMENTS."  92 CONG. REC. 7872. 

FN9  WE WOULD REJECT THE ARGUMENT THAT DIVESTITURE IS UNWISE IN LIGHT
OF CURRENT FOREIGN TRADE CONDITIONS FOR SUBSTANTIALLY THE SAME REASONS
WE REJECTED IT IN CONNECTION WITH APPELLANT'S CONTENTION THAT THERE WAS
NO VIOLATION OF THE SHERMAN ACT. 

FN10  DEWAR DIED WHILE THIS APPEAL WAS PENDING.  WERE IT NOT FOR THE
PRESENT LITIGATION, APPELLANT, UNDER THE CONTRACTS BETWEEN IT AND
DEWAR, WOULD BE ENTITLED TO PURCHASE DEWAR'S INTEREST IN BRITISH TIMKEN
(WHICH WOULD GIVE APPELLANT A 54% STOCK INTEREST IN THAT CORPORATION);
APPELLANT ALSO HAS A RIGHT OF FIRST REFUSAL AS TO DEWAR'S 50% STOCK
INTEREST IN FRENCH TIMKEN (WHICH, IF EXERCISED, WOULD GIVE APPELLANT
100% OWNERSHIP OF THAT COMPANY).  APPELLANT MOVED IN THE DISTRICT COURT
TO REOPEN THE RECORD TO ADMIT EVIDENCE OF THESE CHANGED CIRCUMSTANCES
CAUSED BY DEWAR'S DEATH AND FOR A RECONSIDERATION OF THE DIVESTITURE
PROVISIONS OF THE DECREE.  THE DISTRICT COURT DENIED THE MOTION.  MR.
JUSTICE DOUGLAS, MR. JUSTICE MINTON AND I WOULD HOLD THAT THIS RULING
WAS WITHIN ITS DISCRETION. 

MR. JUSTICE BURTON AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING. 

IT SEEMS TO ME THERE CAN BE NO VALID OBJECTION TO THAT PART OF THE
OPINION WHICH APPROVES THE FINDING OF THE DISTRICT COURT THAT THE
TIMKEN ROLLER BEARING COMPANY HAS VIOLATED SECS. 1 AND 3 OF THE SHERMAN
ACT.  IT MAY SEEM STRANGE TO HAVE A CONSPIRACY FOR THE DIVISION OF
TERRITORY FOR MARKETING BETWEEN ONE CORPORATION AND ANOTHER IN WHICH IT
HAS A LARGE OR EVEN A MAJOR INTEREST, BUT ANY OTHER CONCLUSION WOULD
OPEN WIDE THE DOORS FOR VIOLATION OF THE SHERMAN ACT AT HOME AND IN
FOREIGN FIELDS.  MY DISAGREEMENT WITH THE OPINION IS BASED ON THE
SUGGESTED REQUIREMENT THAT AMERICAN TIMKEN DIVEST ITSELF OF ALL
INTEREST IN BRITISH TIMKEN AND FRENCH TIMKEN AS REQUIRED BY PARAGRAPH
VIII OF THE DECREE SET OUT BELOW.  FN1  MY REASONS FOR THIS
DISAGREEMENT FOLLOW. 

THERE ARE NO SPECIFIC STATUTORY PROVISIONS AUTHORIZING COURTS TO
EMPLOY THE HARSH REMEDY OF DIVESTITURE IN CIVIL PROCEEDINGS TO RESTRAIN
VIOLATIONS OF THE SHERMAN ACT.  FINES AND IMPRISONMENT MAY FOLLOW
CRIMINAL CONVICTIONS, 15 U.S.C. SEC. 1, AND DIVESTITURE OF PROPERTY HAS
BEEN USED IN DECREES, NOT AS PUNISHMENT, BUT TO ASSURE EFFECTIVE
ENFORCEMENT OF THE LAWS AGAINST RESTRAINT OF TRADE.  FN2 

SINCE DIVESTITURE IS A REMEDY TO RESTORE COMPETITION AND NOT TO
PUNISH THOSE WHO RESTRAIN TRADE, IT IS NOT TO BE USED INDISCRIMINATELY,
WITHOUT REGARD TO THE TYPE OF VIOLATION OR WHETHER OTHER EFFECTIVE
METHODS, LESS HARSH, ARE AVAILABLE.  THAT JUDICIAL RESTRAINT SHOULD
FOLLOW SUCH LINES IS EXEMPLIFIED BY OUR RECENT RULINGS IN UNITED STATES
V. NATIONAL LEAD CO., 332 U.S. 319, WHERE WE APPROVED DIVESTITURE OF
SOME PROPERTIES BELONGING TO THE CONSPIRATORS AND DENIED IT AS TO
OTHERS, PP. 348-353.  WHILE THE DECREE HERE DOES NOT CALL FOR
CONFISCATION, IT DOES CALL FOR DIVESTITURE.  I THINK THAT REQUIREMENT
IS UNNECESSARY.  FN3 

IN THIS CASE THE PROHIBITED PLAN GREW OUT OF THE EFFORT TO IMPLEMENT
A PATENT MONOPOLY.  THE DIFFICULTIES OF CULTIVATING A FOREIGN MARKET
FOR OUR MANUFACTURED GOODS OBVIOUSLY ENTERED INTO CREATION OF THE
BRITISH AND FRENCH COMPANIES SO AS TO ENJOY A RIGHT OF DISTRIBUTION
INTO AREAS WHERE OTHERWISE RESTRICTIONS, BECAUSE OF TARIFFS, QUOTAS AND
EXCHANGE, MIGHT BE EXPECTED.  WE FAIL TO SEE SUCH PROPENSITY TOWARD
RESTRAINT OF TRADE AS IS EVIDENCED IN THE CRESCENT CASE. 

WHAT WE HAVE IS AN AMERICAN CORPORATION, DOMINANT IN THE FIELD OF
TAPERED ROLLER BEARINGS, PRODUCING BETWEEN 70 AND 80 PERCENT OF THE
AMERICAN OUTPUT.  IN 1947 ITS GROSS SALES WERE OVER $77,000,000.  THIS
IS A DISTINCTIVE TYPE OF BEARING, COMPETING SUCCESSFULLY FOR ADOPTION
BY INDUSTRY WITH OTHER ANTIFRICTION BEARINGS.  TIMKEN PRODUCES ABOUT
25% OF ALL UNITED STATES ANTIFRICTION BEARINGS.  AS THERE WERE NO
FINDINGS OF FACTS TENDING TO SHOW VIOLATION OF THE SHERMAN ACT
OTHERWISE THAN THROUGH FORMAL AGREEMENTS FOR PARTITION OF TERRITORY, WE
ASSUME APPELLANT'S CONDUCT WAS OTHERWISE LAWFUL. 

IN SUCH CIRCUMSTANCES, THERE WAS, OF COURSE, NO OCCASION FOR THE
LOWER COURT TO ORDER ANY SPLITTING UP OF A CONSOLIDATED ENTITY.  CF.
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; UNITED STATES V.
AMERICAN TOBACCO CO., 221 U.S. 106.  THERE HAS BEEN NO EFFORT TO CREATE
NUMEROUS SMALLER COMPANIES OUT OF TIMKEN SO THAT THERE WILL BE NO
DOMINANT INDIVIDUAL IN THE TAPERED ROLLER BEARING FIELD.  THE AMERICAN
COMPANY HAD HAD A NORMAL GROWTH AND DEVELOPMENT.  ITS RELATIONS WITH
ENGLISH AND FRENCH TIMKEN WERE CLOSE AND AMERICAN TIMKEN HAD STOCK AND
CONTRACTS FOR FURTHER STOCK IN BOTH FOREIGN COMPANIES OF VALUE IN THE
DEVELOPMENT OF ITS FOREIGN BUSINESS.  SUCH BUSINESS ARRANGEMENTS SHOULD
NOT BE DESTROYED UNLESS NECESSARY TO DO AWAY WITH THE PROHIBITED EVIL. 

AN INJUNCTION WAS ENTERED BY THE DISTRICT COURT TO PROHIBIT THE
CONTINUATION OF THE OBJECTIONABLE CONTRACTS.  VIOLATION OF THAT
INJUNCTION WOULD THREATEN THE APPELLANT AND ITS OFFICERS WITH CIVIL AND
CRIMINAL CONTEMPT.  UNITED STATES V. GOLDMAN, 277 U.S. 229, AND HILL V.
WEINER, 300 U.S. 105.  THE PAUCITY OF CASES DEALING WITH CONTEMPT OF
SHERMAN ACT INJUNCTIONS IS, I THINK, AN INDICATION OF HOW CAREFULLY THE
DECREES ARE OBEYED.  THE INJUNCTION IS A FAR STRONGER SANCTION AGAINST
FURTHER VIOLATION THAN THE SHERMAN ACT ALONE.  ONCE IN POSSESSION OF
FACTS SHOWING VIOLATION, THE GOVERNMENT WOULD OBTAIN A QUICK AND
SUMMARY PUNISHMENT OF THE VIOLATOR.  FURTHERMORE THIS CASE REMAINS ON
THE DOCKET FOR THE PURPOSE OF "ENFORCEMENT OF COMPLIANCE" AND
"PUNISHMENT OF VIOLATIONS."  THIS PROVISION SHOULD LEAVE POWER IN THE
COURT TO ENFORCE DIVESTITURE, IF THE INJUNCTION ALONE FAILS.  PROMPT
AND FULL COMPLIANCE WITH THE DECREE SHOULD BE ANTICIPATED. 

THIS COURT IS HESITANT, ALWAYS, TO INTERFERE WITH THE SCOPE OF THE
TRIAL COURT'S DECREE.  FN4 HOWEVER, IN THIS CASE IT SEEMS APPROPRIATE
TO INDICATE MY DISAPPROVAL OF THE REQUIREMENT OF DIVESTITURE AND TO
SUGGEST A DIRECTION TO THE DISTRICT COURT THAT PROVISIONS LEADING TO
THAT RESULT BE ELIMINATED FROM THE DECREE.  SUCH REMAND WOULD ALSO GIVE
OPPORTUNITY FOR RECONSIDERATION OF THE CHANGES NECESSARY IN THE DECREE
BECAUSE OF THE REMAND AND THE DEATH OF MR. DEWAR. 

IN MY VIEW SUCH AN ORDER SHOULD BE ENTERED. 

FN1  "VIII.  A. WITHIN TWO YEARS FROM THE DATE OF THIS JUDGMENT,
DEFENDANT SHALL DIVEST ITSELF OF ALL STOCK HOLDINGS AND OTHER FINANCIAL
INTERESTS, DIRECT OR INDIRECT, IN BRITISH TIMKEN AND FRENCH TIMKEN. 
WITHIN ONE YEAR FROM THE DATE OF THIS JUDGMENT, DEFENDANT SHALL PRESENT
TO THE COURT FOR ITS APPROVAL A PLAN FOR SUCH DIVESTITURE. 

"B.  DEFENDANT IS HEREBY ENJOINED AND RESTRAINED, FROM THE DATE OF
THIS JUDGMENT, FROM: 

"1.  ACQUIRING, DIRECTLY OR INDIRECTLY, ANY OWNERSHIP INTEREST IN (BY
PURCHASE OR ACQUISITION OF ASSETS OR SECURITIES, OR THROUGH THE
EXERCISE OF ANY OPTION, OR OTHERWISE), OR ANY CONTROL OVER, BRITISH
TIMKEN OR FRENCH TIMKEN, OR ANY SUBSIDIARY, SUCCESSOR OR ASSIGN
THEREOF; 

"2.  EXERCISING ANY INFLUENCE OR CONTROL OVER THE PRODUCTION, SALES
OR OTHER BUSINESS POLICIES OF BRITISH TIMKEN OR FRENCH TIMKEN, OR ANY
SUBSIDIARY, SUCCESSOR, ASSIGN, AGENT, SALES REPRESENTATIVE, OR
DISTRIBUTOR THEREOF; 

"3.  CAUSING, AUTHORIZING OR KNOWINGLY PERMITTING ANY OFFICER,
DIRECTOR, OR EMPLOYEE OF DEFENDANT OR ITS SUBSIDIARIES TO SERVE AS AN
OFFICER, DIRECTOR, OR EMPLOYEE OF BRITISH TIMKEN OR FRENCH TIMKEN OR OF
ANY SUBSIDIARY, SUCCESSOR, ASSIGN, AGENT, SALES REPRESENTATIVE, OR
DISTRIBUTOR THEREOF." 

FN2  UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 189;
UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131, 166(THIRD); 85
F.SUPP.  881, 895, AFFIRMED SUB NOM. UNITED STATES V. LOEW'S, INC., 339
U.S. 974; UNITED STATES V. ALUMINUM CO. OF AMERICA, 91 F.SUPP.  333,
392(ALUMINUM LIMITED) AT 418-419. 

FN3  CF. HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 413 ET
SEQ. 

FN4  SEE UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 89. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE FORCE OF THE REASONING AGAINST DIVESTITURE IN THIS CASE FORTIFIES
THE DOUBTS WHICH I FELT ABOUT THE GOVERNMENT'S POSITION AT THE CLOSE OF
ARGUMENT AND PERSUADES ME TO ASSOCIATE MYSELF, IN SUBSTANCE, WITH THE
DISSENTING VIEWS EXPRESSED BY MR. JUSTICE JACKSON.  EVEN "CARTEL" IS
NOT A TALISMANIC WORD, SO AS TO DISPLACE THE RULE OF REASON BY WHICH
BREACHES OF THE SHERMAN LAW ARE DETERMINED.  NOR IS "DIVISION OF
TERRITORY" SO SELF-OPERATING A CATEGORY OF SHERMAN LAW VIOLATIONS AS TO
DISPENSE WITH ANALYSIS OF THE PRACTICAL CONSEQUENCES OF WHAT ON PAPER
IS A GEOGRAPHIC DIVISION OF TERRITORY. 

WHILE AMERICAN BANANA CO. V. UNITED FRUIT CO., 213 U.S. 347,
PRESENTED A WHOLLY DIFFERENT SET OF FACTS FROM THOSE BEFORE US, THE
DECISION IN THAT CASE DOES POINT TO THE FACT THAT THE CIRCUMSTANCES OF
FOREIGN TRADE MAY ALTER THE INCIDENCE OF WHAT IN THE SETTING OF
DOMESTIC COMMERCE WOULD BE A CLEAR CASE OF UNREASONABLE RESTRAINT OF
TRADE. 

OF COURSE, IT IS NOT FOR THIS COURT TO FORMULATE ECONOMIC POLICY AS
TO FOREIGN COMMERCE.  BUT THE CONDITIONS CONTROLLING FOREIGN COMMERCE
MAY BE RELEVANT HERE.  WHEN AS A MATTER OF COLD FACT THE LEGAL,
FINANCIAL, AND GOVERNMENTAL POLICIES DENY OPPORTUNITIES FOR EXPORTATION
FROM THIS COUNTRY AND IMPORTATION INTO IT, ARRANGEMENTS THAT AFFORD
SUCH OPPORTUNITIES TO AMERICAN ENTERPRISE MAY NOT FALL UNDER THE BAN OF
A FAIR CONSTRUCTION OF THE SHERMAN LAW BECAUSE COMPARABLE ARRANGEMENTS
REGARDING DOMESTIC COMMERCE COME WITHIN ITS CONDEMNATION. 

MR. JUSTICE JACKSON, DISSENTING. 

I DOUBT THAT IT SHOULD BE REGARDED AS AN UNREASONABLE RESTRAINT OF
TRADE FOR AN AMERICAN INDUSTRIAL CONCERN TO ORGANIZE FOREIGN
SUBSIDIARIES, EACH LIMITED TO SERVING A PARTICULAR MARKET AREA.  IF SO,
IT SEEMS TO PRECLUDE THE ONLY PRACTICAL MEANS OF REACHING FOREIGN
MARKETS BY MANY AMERICAN INDUSTRIES. 

THE FUNDAMENTAL ISSUE HERE CONCERNS A SEVERELY TECHNICAL APPLICATION
TO FOREIGN COMMERCE OF THE CONCEPT OF CONSPIRACY.  IT IS ADMITTED THAT
IF TIMKEN HAD, WITHIN ITS OWN CORPORATE ORGANIZATION, SET UP SEPARATE
DEPARTMENTS TO OPERATE PLANTS IN FRANCE AND GREAT BRITAIN, AS WELL AS
IN THE UNITED STATES, "THAT WOULD NOT BE A CONSPIRACY.  YOU MUST HAVE
TWO ENTITIES TO HAVE A CONSPIRACY."  FN1  THUS, ALTHOUGH A SINGLE
AMERICAN PRODUCER, OF COURSE, WOULD NOT COMPETE WITH ITSELF, EITHER
ABROAD OR AT HOME, AND COULD DETERMINE PRICES AND ALLOT TERRITORIES
WITH THE SAME EFFECT AS HERE, THAT WOULD NOT BE A VIOLATION OF THE ACT,
BECAUSE A CORPORATION CANNOT CONSPIRE WITH ITSELF.  GOVERNMENT COUNSEL
ANSWERED AFFIRMATIVELY THE QUESTION OF THE CHIEF JUSTICE:  "YOUR THEORY
IS THAT IF YOU HAVE A SEPARATE CORPORATION, THAT MAKES THE
DIFFERENCE?"  FN2  THUS, THE COURT APPLIES THE WELL-ESTABLISHED
CONSPIRACY DOCTRINE THAT WHAT IT WOULD NOT BE ILLEGAL FOR TIMKEN TO DO
ALONE MAY BE ILLEGAL AS A CONSPIRACY WHEN DONE BY TWO LEGALLY SEPARATE
PERSONS.  THE DOCTRINE NOW APPLIED TO FOREIGN COMMERCE IS THAT FOREIGN
SUBSIDIARIES ORGANIZED BY AN AMERICAN CORPORATION ARE "SEPARATE
PERSONS," AND ANY ARRANGEMENT BETWEEN THEM AND THE PARENT CORPORATION
TO DO THAT WHICH IS LEGAL FOR THE PARENT ALONE IS AN UNLAWFUL
CONSPIRACY.  I THINK THAT RESULT PLACES TOO MUCH WEIGHT ON LABELS. 

BUT IF WE APPLY THE MOST STRICT CONSPIRACY DOCTRINE, WE STILL HAVE
THE QUESTION WHETHER THE ARRANGEMENT IS AN UNREASONABLE RESTRAINT OF
TRADE OR A METHOD AND MEANS OF CARRYING ON COMPETITION IN TRADE. 
TIMKEN DID NOT SIT DOWN WITH COMPETITORS AND DIVIDE AN EXISTING MARKET
BETWEEN THEM.  IT HAS AT ALL TIMES, IN ALL PLACES, HAD POWERFUL
RIVALS.  IT WAS NOT EFFECTIVELY MEETING THEIR COMPETITION IN FOREIGN
MARKETS, AND SO IT JOINED OTHERS IN CREATING A BRITISH SUBSIDIARY TO GO
AFTER BUSINESS BEST REACHABLE THROUGH SUCH A CONCERN AND A FRENCH ONE
TO EXPLOIT FRENCH MARKETS.  OF COURSE, IN DOING SO, IT ALLOTTED
APPROPRIATE TERRITORY TO EACH AND NONE WAS TO ENTER INTO COMPETITION
WITH THE OTHER OR WITH THE PARENT.  SINCE MANY FOREIGN GOVERNMENTS
PROHIBIT OR HANDICAP AMERICAN CORPORATIONS FROM OWNING PLANTS, ENTERING
INTO CONTRACTS, OR ENGAGING IN BUSINESS DIRECTLY, THIS SEEMS THE ONLY
PRACTICAL WAY OF WAGING COMPETITION IN THOSE AREAS. 

THE PHILOSOPHY OF THE GOVERNMENT, ADOPTED BY THE COURT, IS THAT
TIMKEN'S CONDUCT IS CONSPIRACY TO RESTRAIN TRADE SOLELY BECAUSE THE
VENTURE MADE USE OF SUBSIDIARIES.  IT IS FORBIDDEN THUS TO DEAL WITH
AND UTILIZE SUBSIDIARIES TO EXPLOIT FOREIGN TERRITORIES, BECAUSE
"PARENT AND SUBSIDIARY CORPORATIONS MUST ACCEPT THE CONSEQUENCES OF
MAINTAINING SEPARATE CORPORATE ENTITIES,"  FN3  AND THAT CONSEQUENCE IS
CONSPIRACY TO RESTRAIN TRADE.  BUT NOT ALL AGREEMENTS ARE CONSPIRACIES
AND NOT ALL RESTRAINTS OF TRADE ARE UNLAWFUL.  IN A WORLD OF TARIFFS,
TRADE BARRIERS, EMPIRE OR DOMESTIC PREFERENCES, AND VARIOUS FORMS OF
PAROCHIALISM FROM WHICH WE ARE BY NO MEANS FREE, I THINK A RULE THAT IT
IS RESTRAINT OF TRADE TO ENTER A FOREIGN MARKET THROUGH A SEPARATE
SUBSIDIARY OF LIMITED SCOPE IS VIRTUALLY TO FORECLOSE FOREIGN COMMERCE
OF MANY KINDS.  IT IS ONE THING FOR COMPETITORS OR A PARENT AND ITS
SUBSIDIARIES TO DIVIDE THE UNITED STATES DOMESTIC MARKET WHICH IS AN
ECONOMIC AND LEGAL UNIT; IT IS ANOTHER FOR AN INDUSTRY TO RECOGNIZE
THAT FOREIGN MARKETS CONSIST OF MANY LEGAL AND ECONOMIC UNITS AND TO GO
AFTER EACH THROUGH SEPARATE MEANS.  I THINK THIS DECISION WILL RESTRAIN
MORE TRADE THAN IT WILL MAKE FREE.    FN1  ARGUMENT OF GOVERNMENT
COUNSEL REPORTED 19 L.W. 3291 ET SEQ. 

FN2  SEE NOTE 1, SUPRA.    FN3  SEE NOTE 1, SUPRA.
..END :







HUGHES V. FETTER, 341 U.S. 609 


NO. 355.  ARGUED MARCH 1-2, 1951.  - DECIDED JUNE 4, 1951.  - 257 WIS.
35, 42 N.W.2D 452, REVERSED. 


APPELLANT ADMINISTRATOR BROUGHT THIS ACTION IN A WISCONSIN STATE COURT
TO RECOVER DAMAGES FOR THE DEATH OF A DECEDENT WHO WAS FATALLY INJURED
IN AN AUTOMOBILE ACCIDENT IN ILLINOIS.  THE COMPLAINT WAS BASED ON THE
ILLINOIS WRONGFUL DEATH STATUTE, AND NAMED AS DEFENDANTS THE ALLEGEDLY
NEGLIGENT DRIVER AND AN INSURANCE COMPANY.  APPELLANT, THE DECEDENT,
AND THE INDIVIDUAL DEFENDANT WERE RESIDENTS OF WISCONSIN; APPELLANT HAD
BEEN APPOINTED ADMINISTRATOR UNDER WISCONSIN LAWS; AND THE INSURANCE
COMPANY WAS A WISCONSIN CORPORATION.  THE TRIAL COURT DISMISSED THE
COMPLAINT, PURSUANT TO A WISCONSIN STATUTE WHICH CREATES A RIGHT OF
ACTION ONLY FOR DEATHS CAUSED IN THAT STATE, AND WHICH ESTABLISHES A
LOCAL PUBLIC POLICY AGAINST WISCONSIN COURTS ENTERTAINING SUITS BROUGHT
UNDER THE WRONGFUL DEATH ACTS OF OTHER STATES.  HELD:  THE STATUTORY
POLICY OF WISCONSIN WHICH EXCLUDES FROM ITS COURTS THIS ILLINOIS CAUSE
OF ACTION IS IN CONTRAVENTION OF THE FULL FAITH AND CREDIT CLAUSE OF
THE FEDERAL CONSTITUTION.  PP. 610-614. 

(A)  THE ILLINOIS STATUTE IS A "PUBLIC ACT" WITHIN THE MEANING OF THE
FEDERAL CONSTITUTIONAL PROVISION THAT "FULL FAITH AND CREDIT SHALL BE
GIVEN IN EACH STATE TO THE PUBLIC ACTS  ...  OF EVERY OTHER STATE."  P.
611. 

(B)  WISCONSIN CANNOT ESCAPE ITS CONSTITUTIONAL OBLIGATION TO ENFORCE
THE RIGHTS AND DUTIES VALIDLY CREATED UNDER THE LAWS OF OTHER STATES BY
THE SIMPLE DEVICE OF REMOVING JURISDICTION FROM COURTS OTHERWISE
COMPETENT.  P. 611. 

(C)  WISCONSIN'S POLICY AGAINST ENTERTAINING SUITS UNDER THE WRONGFUL
DEATH ACTS OF OTHER STATES MUST GIVE WAY, IN THE CIRCUMSTANCES OF THIS
CASE, TO THE STRONG UNIFYING PRINCIPLE EMBODIED IN THE FULL FAITH AND
CREDIT CLAUSE LOOKING TOWARD MAXIMUM ENFORCEMENT IN EACH STATE OF THE
OBLIGATIONS OR RIGHTS CREATED OR RECOGNIZED BY THE STATUTES OF SISTER
STATES.  PP. 611-613. 

(D)  ASSUMING THAT THE DOCTRINE OF FORUM NON CONVENIENS MIGHT UNDER
SOME CIRCUMSTANCES JUSTIFY A FORUM STATE IN REFUSING TO ACCORD FULL
FAITH AND CREDIT TO ACTS OF SISTER STATES, THE WISCONSIN STATUTORY
POLICY CANNOT BE CONSIDERED AS AN APPLICATION OF THAT DOCTRINE, SINCE
THIS CASE IS NOT ONE WHICH LACKS A CLOSE RELATIONSHIP WITH WISCONSIN. 
PP. 612-613. 

HUGHES, ADMINISTRATOR, V. FETTER ET AL. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

APPELLANT'S ACTION IN A WISCONSIN COURT, TO RECOVER DAMAGES FOR A
WRONGFUL DEATH ARISING OUT OF AN ACCIDENT WHICH OCCURRED IN ILLINOIS,
WAS DISMISSED PURSUANT TO THE PROVISIONS OF A WISCONSIN STATUTE.  THE
STATE SUPREME COURT AFFIRMED.  257 WIS. 35, 42 N.W.2D 452.  ON APPEAL
TO THIS COURT, REVERSED AND REMANDED, P. 614. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

BASING HIS COMPLAINT ON THE ILLINOIS WRONGFUL DEATH STATUTE,  FN1
APPELLANT ADMINISTRATOR BROUGHT THIS ACTION IN THE WISCONSIN STATE
COURT TO RECOVER DAMAGES FOR THE DEATH OF HAROLD HUGHES, WHO WAS
FATALLY INJURED IN AN AUTOMOBILE ACCIDENT IN ILLINOIS.  THE ALLEGEDLY
NEGLIGENT DRIVER AND AN INSURANCE COMPANY WERE NAMED AS DEFENDANTS.  ON
THEIR MOTION THE TRIAL COURT ENTERED SUMMARY JUDGMENT "DISMISSING THE
COMPLAINT ON THE MERITS."  IT HELD THAT A WISCONSIN STATUTE, WHICH
CREATES A RIGHT OF ACTION ONLY FOR DEATHS CAUSED IN THAT STATE,
ESTABLISHES A LOCAL PUBLIC POLICY AGAINST WISCONSIN'S ENTERTAINING
SUITS BROUGHT UNDER THE WRONGFUL DEATH ACTS OF OTHER STATES.  FN2  THE
WISCONSIN SUPREME COURT AFFIRMED, NOTWITHSTANDING THE CONTENTION THAT
THE LOCAL STATUTE SO CONSTRUED VIOLATED THE FULL FAITH AND CREDIT
CLAUSE OF ART. IV, SEC. 1 OF THE CONSTITUTION.  FN3  THE CASE IS
PROPERLY HERE ON APPEAL UNDER 28 U.S.C. SEC. 1257. 

WE ARE CALLED UPON TO DECIDE THE NARROW QUESTION WHETHER WISCONSIN,
OVER THE OBJECTION RAISED, CAN CLOSE THE DOORS OF ITS COURTS TO THE
CAUSE OF ACTION CREATED BY THE ILLINOIS WRONGFUL DEATH ACT.  FN4  PRIOR
DECISIONS HAVE ESTABLISHED THAT THE ILLINOIS STATUTE IS A "PUBLIC ACT"
WITHIN THE PROVISION OF ART. IV, SEC. 1 THAT "FULL FAITH AND CREDIT
SHALL BE GIVEN IN EACH STATE TO THE PUBLIC ACTS  ...  OF EVERY OTHER
STATE."  FN5  IT IS ALSO SETTLED THAT WISCONSIN CANNOT ESCAPE THIS
CONSTITUTIONAL OBLIGATION TO ENFORCE THE RIGHTS AND DUTIES VALIDLY
CREATED UNDER THE LAWS OF OTHER STATES BY THE SIMPLE DEVICE OF REMOVING
JURISDICTION FROM COURTS OTHERWISE COMPETENT.  FN6 WE HAVE RECOGNIZED,
HOWEVER, THAT FULL FAITH AND CREDIT DOES NOT AUTOMATICALLY COMPEL A
FORUM STATE TO SUBORDINATE ITS OWN STATUTORY POLICY TO A CONFLICTING
PUBLIC ACT OF ANOTHER STATE; RATHER, IT IS FOR THIS COURT TO CHOOSE IN
EACH CASE BETWEEN THE COMPETING PUBLIC POLICIES INVOLVED.  FN7  THE
CLASH OF INTERESTS IN CASES OF THIS TYPE HAS USUALLY BEEN DESCRIBED AS
A CONFLICT BETWEEN THE PUBLIC POLICIES OF TWO OR MORE STATES.  FN8  THE
MORE BASIC CONFLICT INVOLVED IN THE PRESENT APPEAL, HOWEVER, IS AS
FOLLOWS:  ON THE ONE HAND IS THE STRONG UNIFYING PRINCIPLE EMBODIED IN
THE FULL FAITH AND CREDIT CLAUSE LOOKING TOWARD MAXIMUM ENFORCEMENT IN
EACH STATE OF THE OBLIGATIONS OR RIGHTS CREATED OR RECOGNIZED BY THE
STATUTES OF SISTER STATES; FN9  ON THE OTHER HAND IS THE POLICY OF
WISCONSIN, AS INTERPRETED BY ITS HIGHEST COURT, AGAINST PERMITTING
WISCONSIN COURTS TO ENTERTAIN THIS WRONGFUL DEATH ACTION.  FN10 

WE HOLD THAT WISCONSIN'S POLICY MUST GIVE WAY.  THAT STATE HAS NO
REAL FEELING OF ANTAGONISM AGAINST WRONGFUL DEATH SUITS IN GENERAL. 
FN11  TO THE CONTRARY, A FORUM IS REGULARLY PROVIDED FOR CASES OF THIS
NATURE, THE EXCLUSIONARY RULE EXTENDING ONLY SO FAR AS TO BAR ACTIONS
FOR DEATH NOT CAUSED LOCALLY.  FN12  THE WISCONSIN POLICY, MOREOVER,
CANNOT BE CONSIDERED AS AN APPLICATION OF THE FORUM NON CONVENIENS
DOCTRINE, WHATEVER EFFECT THAT DOCTRINE MIGHT BE GIVEN IF ITS USE
RESULTED IN DENYING ENFORCEMENT TO PUBLIC ACTS OF OTHER STATES.  EVEN
IF WE ASSUME THAT WISCONSIN COULD REFUSE, BY REASON OF PARTICULAR
CIRCUMSTANCES, TO HEAR FOREIGN CONTROVERSIES TO WHICH NONRESIDENTS WERE
PARTIES,  FN13  THE PRESENT CASE IS NOT ONE LACKING A CLOSE
RELATIONSHIP WITH THE STATE.  FOR NOT ONLY WERE APPELLANT, THE DECEDENT
AND THE INDIVIDUAL DEFENDANT ALL RESIDENTS OF WISCONSIN, BUT ALSO
APPELLANT WAS APPOINTED ADMINISTRATOR AND THE CORPORATE DEFENDANT WAS
CREATED UNDER WISCONSIN LAWS.  WE ALSO THINK IT RELEVANT, ALTHOUGH NOT
CRUCIAL HERE, THAT WISCONSIN MAY WELL BE THE ONLY JURISDICTION IN WHICH
SERVICE COULD BE HAD AS AN ORIGINAL MATTER ON THE INSURANCE COMPANY
DEFENDANT.  FN14  AND WHILE IN THE PRESENT CASE JURISDICTION OVER THE
INDIVIDUAL DEFENDANT APPARENTLY COULD BE HAD IN ILLINOIS BY SUBSTITUTED
SERVICE,  FN15  IN OTHER CASES WISCONSIN'S EXCLUSIONARY STATUTE MIGHT
AMOUNT TO A DEPRIVATION OF ALL OPPORTUNITY TO ENFORCE VALID DEATH
CLAIMS CREATED BY ANOTHER STATE. 

UNDER THESE CIRCUMSTANCES, WE CONCLUDE THAT WISCONSIN'S STATUTORY
POLICY WHICH EXCLUDES THIS ILLINOIS CAUSE OF ACTION IS FORBIDDEN BY THE
NATIONAL POLICY OF THE FULL FAITH AND CREDIT CLAUSE.  FN16  THE
JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE SUPREME COURT OF
WISCONSIN FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED
AND REMANDED. 

FN1  SMITH-HURD'S ILL. ANN. STAT., 1936, C. 70, SECS. 1, 2. 

FN2  WIS. STAT., 1949, SEC. 331.03.  THIS SECTION CONTAINS LANGUAGE
TYPICALLY FOUND IN WRONGFUL DEATH ACTS BUT CONCLUDES AS FOLLOWS:
"PROVIDED, THAT SUCH ACTION SHALL BE BROUGHT FOR A DEATH CAUSED IN THIS
STATE." 

FN3  257 WIS. 35, 42 N.W.2D 452. 

FN4  THE PARTIES CONCEDE, AS THEY MUST, THAT IF THE SAME CAUSE OF
ACTION HAD PREVIOUSLY BEEN REDUCED TO JUDGMENT, THE FULL FAITH AND
CREDIT CLAUSE WOULD COMPEL THE COURTS OF WISCONSIN TO ENTERTAIN AN
ACTION TO ENFORCE IT.  KENNEY V. SUPREME LODGE, 252 U.S. 411. 

FN5  E.G., BRODERICK V. ROSNER, 294 U.S. 629, 644; BRADFORD ELEC. 
CO. V. CLAPPER, 286 U.S. 145, 154-155; JOHN HANCOCK INS. CO. V. YATES,
299 U.S. 178, 183. 

FN6  E.G., BRODERICK V. ROSNER, 294 U.S. 629, 642-643; CONVERSE V.
HAMILTON, 224 U.S. 243, 260-261; CF. KENNEY V. SUPREME LODGE, 252 U.S.
411, 415; ANGEL V. BULLINGTON, 330 U.S. 183, 188.  THE RELIANCE OF THE
SUPREME COURT OF WISCONSIN ON CHAMBERS V. BALTIMORE & O.R. CO., 207
U.S. 142, WAS MISPLACED.  THAT CASE DOES NOT HOLD THAT ONE STATE,
CONSISTENTLY WITH ART. IV, SEC. 1, CAN EXCLUDE FROM ITS COURTS CAUSES
OF ACTION CREATED BY ANOTHER STATE FOR, AS POINTED OUT IN BRODERICK V.
ROSNER, SUPRA AT 642, N. 3, IN CHAMBERS "NO CLAIM WAS MADE UNDER THE
FULL FAITH AND CREDIT CLAUSE." 

FN7  E.G., PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S. 201, 210-211;
PACIFIC INS. CO. V. COMMISSION, 306 U.S. 493, 502; ALASKA PACKERS ASSN.
V. COMMISSION, 294 U.S. 532, 547. 

FN8  SEE, E.G., ALASKA PACKERS ASSN. V. COMMISSION, 294 U.S. 532, 547
550. 

FN9  THIS CLAUSE "ALTERED THE STATUS OF THE SEVERAL STATES AS
INDEPENDENT FOREIGN SOVEREIGNTIES, EACH FREE TO IGNORE RIGHTS AND
OBLIGATIONS CREATED UNDER THE LAWS OR ESTABLISHED BY THE JUDICIAL
PROCEEDINGS OF THE OTHERS, BY MAKING EACH AN INTEGRAL PART OF A SINGLE
NATION  ...  "  MAGNOLIA PETROLEUM CO. V. HUNT, 320 U.S. 430, 439.  SEE
ALSO MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268, 276-277; ORDER OF
TRAVELERS V. WOLFE, 331 U.S. 586. 

FN10  THE PRESENT CASE IS NOT ONE WHERE WISCONSIN, HAVING ENTERTAINED
APPELLANT'S LAWSUIT, CHOSE TO APPLY ITS OWN INSTEAD OF ILLINOIS'
STATUTE TO MEASURE THE SUBSTANTIVE RIGHTS INVOLVED.  THIS DISTINGUISHES
THE PRESENT CASE FROM THOSE WHERE WE HAVE SAID THAT "PRIMA FACIE EVERY
STATE IS ENTITLED TO ENFORCE IN ITS OWN COURTS ITS OWN STATUTES,
LAWFULLY ENACTED."  ALASKA PACKERS ASSN. V. COMMISSION, 294 U.S. 532,
547; SEE ALSO, WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 295-296. 

FN11  IT MAY WELL BE THAT THE WRONGFUL DEATH ACTS OF WISCONSIN AND
ILLINOIS CONTAIN DIFFERENT PROVISIONS IN REGARD TO SUCH MATTERS AS
MAXIMUM RECOVERY AND DISPOSITION OF THE PROCEEDS OF SUIT.  SUCH
DIFFERENCES, HOWEVER, ARE GENERALLY CONSIDERED UNIMPORTANT.  SEE CASES
COLLECTED 77 A.L.R. 1311, 1317-1324. 

FN12  SEE NOTE 2, SUPRA. 

FN13  SEE BRODERICK V. ROSNER, 294 U.S. 629, 643; COMPARE ANGLO
AMERICAN PROVISION CO. V. DAVIS CO., 191 U.S. 373, WITH KENNEY V.
SUPREME LODGE, 252 U.S. 411. 

FN14  CF. TENNESSEE COAL CO. V. GEORGE, 233 U.S. 354, 359-360. 

FN15  SMITH-HURD'S ILL. ANN. STAT., 1950, C. 95 1/2, SEC. 23. 

FN16  IN CERTAIN PREVIOUS CASES, E.G., PACIFIC INS. CO. V.
COMMISSION, 306 U.S. 493, 502; ALASKA PACKERS ASSN. V. COMMISSION, 294
U.S. 532, 547, THIS COURT SUGGESTED THAT UNDER THE FULL FAITH AND
CREDIT CLAUSE A FORUM STATE MIGHT MAKE A DISTINCTION BETWEEN STATUTES
AND JUDGMENTS OF SISTER STATES BECAUSE OF CONGRESS' FAILURE TO
PRESCRIBE THE EXTRA-STATE EFFECT TO BE ACCORDED PUBLIC ACTS. 
SUBSEQUENT TO THESE DECISIONS THE JUDICIAL CODE WAS REVISED SO AS TO
PROVIDE:  "SUCH ACTS (OF THE LEGISLATURE OF ANY STATE)  ...  AND
JUDICIAL PROCEEDINGS  ...  SHALL HAVE THE SAME FULL FAITH AND CREDIT IN
EVERY COURT WITHIN THE UNITED STATES  ...  AS THEY HAVE  ...  IN THE
COURTS OF SUCH STATE  ...  FROM WHICH THEY ARE TAKEN."  28 U.S.C. (1946
ED., SUPP. III) SEC. 1738.  IN DECIDING THE PRESENT APPEAL, HOWEVER, WE
HAVE FOUND IT UNNECESSARY TO RELY ON ANY CHANGES ACCOMPLISHED BY THE
JUDICIAL CODE REVISION. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED, MR. JUSTICE JACKSON,
AND MR. JUSTICE MINTON JOIN, DISSENTING. 

THIS IS AN ACTION BROUGHT IN THE WISCONSIN STATE COURTS TO RECOVER
FOR THE WRONGFUL DEATH OF HAROLD G. HUGHES.  HUGHES WAS KILLED IN AN
AUTOMOBILE ACCIDENT IN ILLINOIS.  AN ILLINOIS STATUTE PROVIDES THAT AN
ACTION MAY BE BROUGHT TO RECOVER DAMAGES FOR A WRONGFUL DEATH OCCURRING
IN THAT STATE.  SMITH-HURD'S ILL. ANN. STAT., 1936, C. 70, SECS. 1, 2. 
A WISCONSIN STATUTE PROVIDES THAT AN ACTION MAY NOT BE BROUGHT IN THE
COURTS OF THAT STATE FOR A WRONGFUL DEATH OCCURRING OUTSIDE WISCONSIN. 
WIS. STAT., 1949, SEC. 331.03.  THE WISCONSIN COURTS, OBEYING THE
COMMAND OF THE WISCONSIN STATUTE, DISMISSED THE ACTION.  I CANNOT AGREE
THAT THE WISCONSIN STATUTE, SO APPLIED, IS CONTRARY TO ART. IV, SEC. 1
OF THE UNITED STATES CONSTITUTION:  "FULL FAITH AND CREDIT SHALL BE
GIVEN IN EACH STATE TO THE PUBLIC ACTS, RECORDS, AND JUDICIAL
PROCEEDINGS OF EVERY OTHER STATE." 

THE FULL FAITH AND CREDIT CLAUSE WAS DERIVED FROM A SIMILAR PROVISION
IN THE ARTICLES OF CONFEDERATION.  ART. 4, SEC. 3.  THE ONLY CLUE TO
ITS MEANING IN THE AVAILABLE RECORDS OF THE CONSTITUTIONAL CONVENTION
IS A NOTATION IN MADISON'S DEBATES THAT "MR. WILSON & DOCR.  JOHNSON
(WHO BECAME MEMBERS OF THE COMMITTEE TO WHICH THE PROVISION WAS
REFERRED) SUPPOSED THE MEANING TO BE THAT JUDGMENTS IN ONE STATE SHOULD
BE THE GROUND OF ACTIONS IN OTHER STATES, & THAT ACTS OF THE
LEGISLATURES SHOULD BE INCLUDED, FOR THE SAKE OF ACTS OF INSOLVENCY &C
."  II FARRAND, THE RECORDS OF THE FEDERAL CONVENTION, 447.  THIS
COURT HAS, WITH GOOD REASON, GONE FAR IN REQUIRING THAT THE COURTS OF A
STATE RESPECT JUDGMENTS ENTERED BY COURTS OF OTHER STATES.  FAUNTLEROY
V. LUM, 210 U.S. 230; KENNEY V. SUPREME LODGE, 252 U.S. 411; MILWAUKEE
COUNTY V. M.E. WHITE CO., 296 U.S. 268; CF. MAGNOLIA PETROLEUM CO. V.
HUNT, 320 U.S. 430.  BUT THE EXTENT TO WHICH A STATE MUST RECOGNIZE AND
ENFORCE THE RIGHTS OF ACTION CREATED BY OTHER STATES IS NOT SO CLEAR. 

1.  IN THE FIELD OF COMMERCIAL LAW - WHERE CERTAINTY IS OF HIGH
IMPORTANCE - WE HAVE OFTEN IMPOSED A RATHER RIGID RULE THAT A STATE
MUST DEFER TO THE LAW OF THE STATE OF INCORPORATION, OR TO THE LAW OF
THE PLACE OF CONTRACT.  THUS, IN BRODERICK V. ROSNER, 294 U.S. 629, WE
HELD THAT NEW JERSEY COULD NOT CLOSE ITS COURTS TO SUITS WHICH INVOLVED
STOCKHOLDER LIABILITY ARISING UNDER THE LAWS OF NEW YORK.  WE HAD
ALREADY SAID, IN CONVERSE V. HAMILTON, 224 U.S. 243, 260, THAT SUCH
LIABILITY WAS "PECULIARLY WITHIN THE REGULATORY POWER" OF THE STATE OF
INCORPORATION; "SO MUCH SO THAT NO OTHER STATE PROPERLY CAN BE SAID TO
HAVE ANY PUBLIC POLICY THEREON."  IN JOHN HANCOCK INSURANCE CO. V.
YATES, 299 U.S. 178, WE HELD THAT THE GEORGIA COURTS HAD TO GIVE FULL
FAITH AND CREDIT TO A NEW YORK PAROLE EVIDENCE STATUTE WHICH PREVENTED
RECOVERY ON AN INSURANCE CONTRACT MADE IN NEW YORK.  IN BOTH THESE
CASES, THE COURT, SPEAKING THROUGH MR. JUSTICE BRANDEIS, EMPHASIZED
THAT IT WAS THE PARTICULAR RELATIONSHIP INVOLVED WHICH MADE THE FULL
FAITH AND CREDIT CLAUSE APPLICABLE. 

IN PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S. 201, THE COURT FOUND THAT
THE FULL FAITH AND CREDIT CLAUSE DID NOT REQUIRE THE COURTS OF THE
FORUM TO ENFORCE, AGAINST LOCAL POLICYHOLDERS, ASSESSMENTS VALID UNDER
THE LAWS OF THE STATE OF INCORPORATION OF A MUTUAL INSURANCE COMPANY. 
IN $ GRIFFIN V. MCCOACH, 313 U.S. 498, WE DECIDED THAT THE FORUM MAY
DECLINE TO ENFORCE AN INSURANCE POLICY IN FAVOR OF BENEFICIARIES WHO
HAVE NO INSURABLE INTEREST UNDER LOCAL LAW.  ORDER OF TRAVELERS V.
WOLFE, 331 U.S. 586, SEEMS TO HAVE MADE IT CLEAR, HOWEVER, THAT THESE
DECISIONS DID NOT REPRESENT A RADICAL DEPARTURE FROM THE EARLIER
CASES.  WE HELD IN THE WOLFE CASE THAT THE FORUM WAS REQUIRED TO GIVE
FULL FAITH AND CREDIT TO A LAW OF THE STATE OF INCORPORATION ALLOWING A
FRATERNAL BENEFIT SOCIETY TO LIMIT THE DURATION OF ITS LIABILITY.  IT
IS NOT MERELY A BIT OF RHETORIC TO CAUTION AGAINST IMPOSING ON THE
COURTS OF THE FORUM A "STATE OF VASSALAGE."  HAWKINS V. BARNEY'S
LESSEE, 5 PET. 457, 467, QUOTED IN ORDER OF TRAVELERS V. WOLFE, SUPRA,
AT 627(DISSENTING OPINION).  BUT THIS CONSIDERATION OF AUTONOMY IS NOT
SUFFICIENT TO OVERCOME THE ADVANTAGES TO BE OBTAINED FROM A DEGREE OF
CERTAINTY IN CORPORATE AND COMMERCIAL LAW.    2.  IN CASES INVOLVING
WORKMEN'S COMPENSATION, THERE IS ALSO A PRE-EXISTING RELATIONSHIP
BETWEEN THE EMPLOYER AND EMPLOYEE THAT MAKES CERTAINTY OF RESULT
DESIRABLE.  THE POSSIBLE INTEREST OF THE FORUM IN PROTECTING THE
WORKMAN, HOWEVER, HAS MADE THIS COURT RELUCTANT TO IMPOSE RIGID RULES. 
IN BRADFORD ELECTRIC CO. V. CLAPPER, 286 U.S. 145, SUIT WAS BROUGHT IN
NEW HAMPSHIRE TO RECOVER FOR THE WRONGFUL DEATH OF AN EMPLOYEE
OCCURRING IN NEW HAMPSHIRE.  WE HELD, IN AN OPINION BY MR. JUSTICE
BRANDEIS, THAT THE COURT SITTING IN NEW HAMPSHIRE WOULD HAVE TO DISMISS
THE ACTION BECAUSE WORKMEN'S COMPENSATION WAS AN EXCLUSIVE REMEDY UNDER
THE LAWS OF VERMONT, WHERE THE CONTRACT OF EMPLOYMENT WAS MADE, WHERE
THE EMPLOYMENT WAS USUALLY CARRIED ON, AND WHERE BOTH THE EMPLOYER AND
THE EMPLOYEE WERE DOMICILED.  MR. JUSTICE STONE CONCURRED ON THE GROUND
THAT THE NEW HAMPSHIRE COURTS WOULD APPLY THE VERMONT LAW ON PRINCIPLES
OF COMITY.  HE THOUGHT THE FULL FAITH AND CREDIT CLAUSE "SHOULD BE
INTERPRETED AS LEAVING THE COURTS OF NEW HAMPSHIRE FREE, IN THE
CIRCUMSTANCES NOW PRESENTED, EITHER TO APPLY OR REFUSE TO APPLY THE LAW
OF VERMONT, IN ACCORDANCE WITH THEIR OWN INTERPRETATION OF NEW
HAMPSHIRE POLICY AND LAW."  286 U.S. AT 164-165. 

IN ALASKA PACKERS ASSN. V. COMMISSION, 294 U.S. 532, WE HELD THAT
CALIFORNIA - WHERE THE CONTRACT OF EMPLOYMENT WAS ENTERED INTO - WAS
FREE TO APPLY THE TERMS OF ITS OWN WORKMEN'S COMPENSATION STATUTE TO AN
EMPLOYEE INJURED IN ALASKA, ALTHOUGH AN ALASKA STATUTE PURPORTED TO
GIVE AN EXCLUSIVE REMEDY TO PERSONS INJURED THERE.  IN PACIFIC
INSURANCE CO. V. COMMISSION, 306 U.S. 493, WE HELD THAT THE CALIFORNIA
COURTS NEED NOT GIVE FULL FAITH AND CREDIT TO THE EXCLUSIVE REMEDY
PROVISIONS OF THE MASSACHUSETTS WORKMEN'S COMPENSATION STATUTE,
ALTHOUGH MASSACHUSETTS WAS THE PLACE OF CONTRACT AND THE USUAL PLACE OF
EMPLOYMENT. 

MR. JUSTICE STONE, WHO WROTE THE OPINIONS IN THE LATTER TWO CASES,
SPECIFICALLY LIMITED THE CLAPPER DECISION:  "THE CLAPPER CASE CANNOT BE
SAID TO HAVE DECIDED MORE THAN THAT A STATE STATUTE APPLICABLE TO
EMPLOYER AND EMPLOYEE WITHIN THE STATE, WHICH BY ITS TERMS PROVIDES
COMPENSATION FOR THE EMPLOYEE IF HE IS INJURED IN THE COURSE OF HIS
EMPLOYMENT WHILE TEMPORARILY IN ANOTHER STATE, WILL BE GIVEN FULL FAITH
AND CREDIT IN THE LATTER WHEN NOT OBNOXIOUS TO ITS POLICY."  306 U.S.
AT 504. 

3.  IN THE TORT ACTION BEFORE US, THERE IS LITTLE REASON TO IMPOSE A
"STATE OF VASSALAGE" ON THE FORUM.  THE LIABILITY HERE IMPOSED DOES NOT
REST ON A PRE-EXISTING RELATIONSHIP BETWEEN THE PLAINTIFF AND
DEFENDANT.  THERE IS CONSEQUENTLY NO NEED FOR FIXED RULES WHICH WOULD
ENABLE PARTIES, AT THE TIME THEY ENTER INTO A TRANSACTION, TO PREDICT
ITS CONSEQUENCES. 

THE COURT, IN THE CLAPPER CASE, STRESSED THAT NEW HAMPSHIRE HAD
OPENED ITS COURTS TO THE ACTION, BUT HAD REFUSED TO RECOGNIZE A
SUBSTANTIVE DEFENSE.  INDEED, THE COURT INDICATED THAT A STATE MAY BE
FREE TO CLOSE ITS COURTS TO SUITS BASED ON THE TORT LIABILITY CREATED
BY THE STATUTES OF OTHER STATES:  "IT IS TRUE THAT THE FULL FAITH AND
CREDIT CLAUSE DOES NOT REQUIRE THE ENFORCEMENT OF EVERY RIGHT CONFERRED
BY A STATUTE OF ANOTHER STATE.  THERE IS ROOM FOR SOME PLAY OF
CONFLICTING POLICIES.  THUS, A PLAINTIFF SUING IN NEW HAMPSHIRE ON A
STATUTORY CAUSE OF ACTION ARISING IN VERMONT MIGHT BE DENIED RELIEF
BECAUSE THE FORUM FAILS TO PROVIDE A COURT WITH JURISDICTION OF THE
CONTROVERSY; SEE CHAMBERS V. BALTIMORE & OHIO R. CO., 207 U.S. 142,
148, 149; COMPARE DOUGLAS V. NEW YORK, N.H. & H.R. CO., 279 U.S. 377
...  A STATE MAY, ON OCCASION, DECLINE TO ENFORCE A FOREIGN CAUSE OF
ACTION.  IN SO DOING, IT MERELY DENIES A REMEDY, LEAVING UNIMPAIRED THE
PLAINTIFF'S SUBSTANTIVE RIGHT, SO THAT HE IS FREE TO ENFORCE IT
ELSEWHERE."  286 U.S. AT 160. 

THIS COURT SHOULD CERTAINLY NOT REQUIRE THAT THE FORUM DENY ITS OWN
LAW AND FOLLOW THE TORT LAW OF ANOTHER STATE WHERE THERE IS A
REASONABLE BASIS FOR THE FORUM TO CLOSE ITS COURTS TO THE FOREIGN CAUSE
OF ACTION.  THE DECISION OF WISCONSIN TO OPEN ITS COURTS TO ACTIONS FOR
WRONGFUL DEATHS WITHIN THE STATE BUT CLOSE THEM TO ACTIONS FOR DEATHS
OUTSIDE THE STATE MAY NOT SATISFY EVERYONE'S NOTION OF WISE POLICY. 
SEE LOUCKS V. STANDARD OIL CO., 224 N.Y. 99, 120 N.E. 198(1918).  BUT
IT IS NEITHER NOVEL NOR WITHOUT REASON.  COMPARE THE SIMILAR ILLINOIS
STATUTE WHICH WAS BEFORE THIS COURT IN KENNEY V. SUPREME LODGE, SUPRA.
WISCONSIN MAY BE WILLING TO GRANT A RIGHT OF ACTION WHERE WITNESSES
WILL BE AVAILABLE IN WISCONSIN AND THE COURTS ARE ACQUAINTED WITH A
DETAILED LOCAL STATUTE AND CASES CONSTRUING IT.  IT MAY NOT WISH TO
SUBJECT RESIDENTS TO SUIT WHERE OUT-OF-STATE WITNESSES WILL BE
DIFFICULT TO BRING BEFORE THE COURT, AND WHERE THE COURT WILL BE FACED
WITH THE ALTERNATIVE OF APPLYING A COMPLEX FOREIGN STATUTE - PERHAPS
INCONSISTENT WITH THAT OF WISCONSIN ON IMPORTANT ISSUES - OR FITTING
THE STATUTE TO THE WISCONSIN PATTERN.  THE LEGISLATURE MAY WELL FEEL
THAT IT IS BETTER TO ALLOW THE COURTS OF THE STATE WHERE THE ACCIDENT
OCCURRED TO CONSTRUE AND APPLY ITS OWN STATUTE, AND THAT THE
EXCEPTIONAL CASE WHERE THE DEFENDANT CANNOT BE SERVED IN THE STATE
WHERE THE ACCIDENT OCCURRED DOES NOT WARRANT A GENERAL STATUTE ALLOWING
SUIT IN THE WISCONSIN COURTS.  THE VARIOUS WRONGFUL DEATH STATUTES ARE
INCONSISTENT ON SUCH ISSUES AS BENEFICIARIES, THE PARTY WHO MAY BRING
SUIT, LIMITATIONS ON LIABILITY, COMPARATIVE NEGLIGENCE, AND THE MEASURE
OF DAMAGES.  SEE REPORT OF THE SPECIAL COMMISSION TO STUDY THE METHOD
OF ASSESSING DAMAGES IN ACTIONS FOR DEATH (MASS. SEN. NO. 430, DEC. 31,
1942) 21 ET SEQ.; NOTE, 1950 WIS. L. REV. 354, 360, 363.  THE MEASURE
OF DAMAGES AND THE RELATION OF WRONGFUL DEATH ACTIONS TO ACTIONS FOR
INJURY SURVIVING DEATH HAVE RAISED EXTREMELY COMPLICATED PROBLEMS, EVEN
FOR A COURT APPLYING THE FAMILIAR STATUTE OF ITS OWN STATE.  SEE NOTE,
91 U. OF PA. L. REV. 68(1942); OPPENHEIM, THE SURVIVAL OF TORT ACTIONS
AND THE ACTION FOR WRONGFUL DEATH - A SURVEY AND A PROPOSAL, 16 TULANE
L. REV. 386(1942).  THESE DIVERSITIES REASONABLY SUGGEST APPLICATION BY
LOCAL JUDGES VERSED IN THEM.  COMPARE BURFORD V. SUN OIL CO., 319 U.S.
315; ALABAMA PUBLIC SERVICE COMM'N V. SOUTHERN R. CO., 341 U.S. 341. 

NO CLAIM IS MADE THAT WISCONSIN HAS DISCRIMINATED AGAINST THE
CITIZENS OF OTHER STATES AND THUS VIOLATED ART. IV, SEC. 2 OF THE
CONSTITUTION.  COMPARE DOUGLAS V. NEW YORK, N.H. & H.R. CO., 279 U.S.
377.  NOR IS A CLAIM MADE THAT THE LACK OF A FORUM IN WISCONSIN
DEPRIVES THE PLAINTIFF OF DUE PROCESS.  COMPARE BRINKERHOFF-FARIS CO.
V. HILL, 281 U.S. 673; MISSOURI V. LEWIS, 101 U.S. 22, 30.  NOR IS IT
ARGUED THAT WISCONSIN IS FLOUTING A FEDERAL STATUTE.  COMPARE ATLANTIC
COAST LINE R. CO. V. BURNETTE, 239 U.S. 199, 201.  THE ONLY QUESTION
BEFORE US IS HOW FAR THE FULL FAITH AND CREDIT CLAUSE UNDERCUTS THE
PURPOSE OF THE CONSTITUTION, MADE EXPLICIT BY THE TENTH AMENDMENT, TO
LEAVE THE CONDUCT OF DOMESTIC AFFAIRS TO THE STATES.  FEW INTERESTS ARE
OF MORE DOMINANT LOCAL CONCERN THAN MATTERS GOVERNING THE
ADMINISTRATION OF LAW.  THIS VITAL INTEREST OF THE STATES SHOULD NOT BE
SACRIFICED IN THE INTEREST OF A MERELY LITERAL READING OF THE FULL
FAITH AND CREDIT CLAUSE. 

THERE IS NO SUPPORT, EITHER IN REASON OR IN THE CASES, FOR HOLDING
THAT THIS COURT IS TO MAKE A DE NOVO CHOICE BETWEEN THE POLICIES
UNDERLYING THE LAWS OF WISCONSIN AND ILLINOIS.  I CANNOT BELIEVE THAT
THE FULL FAITH AND CREDIT CLAUSE PROVIDED A "WRITER'S INKHORN" SO THAT
THIS COURT MIGHT SEPARATE RIGHT FROM WRONG.  "PRIMA FACIE EVERY STATE
IS ENTITLED TO ENFORCE IN ITS OWN COURTS ITS OWN STATUTES, LAWFULLY
ENACTED.  ONE WHO CHALLENGES THAT RIGHT, BECAUSE OF THE FORCE GIVEN TO
A CONFLICTING STATUTE OF ANOTHER STATE BY THE FULL FAITH AND CREDIT
CLAUSE, ASSUMES THE BURDEN OF SHOWING, UPON SOME RATIONAL BASIS, THAT
OF THE CONFLICTING INTERESTS INVOLVED THOSE OF THE FOREIGN STATE ARE
SUPERIOR TO THOSE OF THE FORUM."  MR. JUSTICE STONE, IN ALASKA PACKERS
ASSN. V. COMMISSION, SUPRA, AT 547-548.  IN THE PRESENT CASE, THE
DECEDENT, THE PLAINTIFF, AND THE INDIVIDUAL DEFENDANT WERE RESIDENTS OF
WISCONSIN.  THE CORPORATE DEFENDANT WAS CREATED UNDER WISCONSIN LAW. 
THE SUIT WAS BROUGHT IN THE WISCONSIN COURTS.  NO REASON IS APPARENT -
AND NONE IS VOUCHSAFED IN THE OPINION OF THE COURT - WHY THE INTEREST
OF ILLINOIS IS SO GREAT THAT IT CAN FORCE THE COURTS OF WISCONSIN TO
GRANT RELIEF IN DEFIANCE OF THEIR OWN LAW. 

FINALLY, IT MAY BE NOTED THAT THERE IS NO CONFLICT HERE IN THE
POLICIES UNDERLYING THE STATUTE OF WISCONSIN AND THAT OF ILLINOIS.  THE
ILLINOIS WRONGFUL DEATH STATUTE HAS A PROVISO THAT "NO ACTION SHALL BE
BROUGHT OR PROSECUTED IN THIS STATE TO RECOVER DAMAGES FOR A DEATH
OCCURRING OUTSIDE OF THIS STATE WHERE A RIGHT OF ACTION FOR SUCH DEATH
EXISTS UNDER THE LAWS OF THE PLACE WHERE SUCH DEATH OCCURRED AND
SERVICE OF PROCESS IN SUCH SUIT MAY BE HAD UPON THE DEFENDANT IN SUCH
PLACE."  SMITH-HURD'S ILL. ANN. STAT., 1936, C. 70, SEC. 2.  THE
OPINION OF THE COURT CONCEDES THAT "JURISDICTION OVER THE INDIVIDUAL
DEFENDANT APPARENTLY COULD BE HAD IN ILLINOIS BY SUBSTITUTED SERVICE." 
SMITH-HURD'S ILL. ANN. STAT., 1950, C. 95 1/2, SEC. 23.  THUS, IN THE
CONVERSE OF THE CASE AT BAR - IF HUGHES HAD BEEN KILLED IN WISCONSIN
AND SUIT HAD BEEN BROUGHT IN ILLINOIS - THE ILLINOIS COURTS WOULD
APPARENTLY HAVE DISMISSED THE SUIT.  THERE IS NO NEED TO BE "MORE ROMAN
THAN THE ROMANS."* 

*COMPARE FREUND, CHIEF JUSTICE STONE AND THE CONFLICT OF LAWS, 59
HARV. L. REV. 1210, 1220(1946). 
..END :



















BREARD V. ALEXANDRIA, 341 U.S. 622 


NO. 399.  ARGUED MARCH 7-8, 1951.  - DECIDED JUNE 4, 1951.  - 217 LA.
820, 47 SO.2D 553, AFFIRMED. 


A SO-CALLED "GREEN RIVER ORDINANCE" OF A MUNICIPALITY FORBIDS THE
PRACTICE OF GOING IN AND UPON PRIVATE RESIDENCES FOR THE PURPOSE OF
SOLICITING ORDERS FOR THE SALE OF GOODS, WITHOUT PRIOR CONSENT OF THE
OWNERS OR OCCUPANTS.  APPELLANT, REPRESENTING A FOREIGN CORPORATION,
WAS ENGAGED IN DOOR-TO-DOOR SOLICITING OF SUBSCRIPTIONS FOR NATIONALLY
KNOWN MAGAZINES AND PERIODICALS.  SUBSCRIPTIONS WERE ACKNOWLEDGED BY A
CARD SENT FROM THE HOME OFFICE OF THE CORPORATION AND THE PUBLICATIONS
WERE DELIVERED BY THE PUBLISHERS IN INTERSTATE COMMERCE THROUGH THE
MAILS.  APPELLANT WAS CONVICTED OF A VIOLATION OF THE ORDINANCE SOLELY
BECAUSE HE HAD NOT OBTAINED THE PRIOR CONSENT OF THE OWNERS OR
OCCUPANTS OF THE RESIDENCES HE SOLICITED.  HELD: 

1.  THE ORDINANCE IS NOT INVALID UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 629-633. 

(A)  THE ORDINANCE CAN BE CHARACTERIZED AS PROHIBITORY OF APPELLANT'S
LEGITIMATE BUSINESS OF OBTAINING SUBSCRIPTIONS TO PERIODICALS ONLY IN
THE LIMITED SENSE OF SUBSCRIPTIONS BY HOUSE-TO-HOUSE CANVASS WITHOUT
INVITATION.  IT LEAVES OPEN THE USUAL METHODS OF SOLICITATION - BY
RADIO, PERIODICALS, MAIL AND LOCAL AGENCIES.  PP. 631-632. 

(B)  THE CONSTITUTION'S PROTECTION OF PROPERTY RIGHTS DOES NOT RENDER
A STATE OR CITY IMPOTENT TO GUARD ITS CITIZENS AGAINST THE ANNOYANCES
OF LIFE BECAUSE THE REGULATION MAY RESTRICT THE MANNER OF DOING A
LEGITIMATE BUSINESS.  PP. 632-633. 

2.  THE ORDINANCE DOES NOT SO BURDEN OR IMPEDE INTERSTATE COMMERCE AS
TO VIOLATE THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 633
641. 

(A)  THE ORDINANCE DOES NOT DISCRIMINATE AGAINST INTERSTATE BUSINESS
AND IS A VALID LOCAL REGULATION OF SOLICITATION.  HOOD & SONS V. DU
MOND, 336 U.S. 525, AND DEAN MILK CO. V. MADISON, 340 U.S. 349,
DISTINGUISHED.  PP. 633-641. 

(B)  APPELLANT, AS A PUBLISHERS' REPRESENTATIVE OR IN HIS OWN RIGHT
AS A DOOR-TO-DOOR CANVASSER, IS NO MORE FREE TO VIOLATE LOCAL
REGULATIONS TO PROTECT PRIVACY THAN ARE OTHER SOLICITORS.  PP. 637
641. 

(C)  WHEN THERE IS A REASONABLE BASIS FOR LEGISLATION TO PROTECT THE
SOCIAL, AS DISTINGUISHED FROM THE ECONOMIC, WELFARE OF A COMMUNITY, IT
IS NOT FOR THIS COURT BECAUSE OF THE COMMERCE CLAUSE TO DENY THE
EXERCISE LOCALLY OF THE SOVEREIGN POWER OF THE STATE.  PP. 640-641. 

3.  THE ORDINANCE DOES NOT ABRIDGE THE FREEDOM OF SPEECH AND PRESS
GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  PP. 641-645. 

(A)  THE FACT THAT PERIODICALS ARE SOLD DOES NOT PUT THEM BEYOND THE
PROTECTION OF THE FIRST AMENDMENT.  PP. 641-642. 

(B)  THE CONSTITUTIONAL GUARANTIES OF FREE SPEECH AND FREE PRESS ARE
NOT ABSOLUTES.  P. 642. 

(C)  MARTIN V. STRUTHERS, 319 U.S. 141; MARSH V. ALABAMA, 326 U.S.
501; AND TUCKER V. TEXAS, 326 U.S. 517, DISTINGUISHED.  PP. 642-644. 

(D)  IT WOULD BE A MISUSE OF THE GREAT GUARANTIES OF FREE SPEECH AND
FREE PRESS TO USE THEM TO FORCE A COMMUNITY TO ADMIT THE SOLICITORS OF
PUBLICATIONS TO THE HOME PREMISES OF ITS RESIDENTS.  P. 645. 

BREARD V. ALEXANDRIA. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

APPELLANT'S CONVICTION OF A VIOLATION OF A MUNICIPAL ORDINANCE,
CHALLENGED AS VIOLATIVE OF HIS RIGHTS UNDER THE FEDERAL CONSTITUTION,
WAS AFFIRMED BY THE STATE SUPREME COURT.  217 LA. 820, 47 SO.2D 553. 
ON APPEAL TO THIS COURT, AFFIRMED, P. 645. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT HERE, JACK H. BREARD, A REGIONAL REPRESENTATIVE OF
KEYSTONE READERS SERVICE, INC., A PENNSYLVANIA CORPORATION, WAS
ARRESTED WHILE GOING FROM DOOR TO DOOR IN THE CITY OF ALEXANDRIA,
LOUISIANA, SOLICITING SUBSCRIPTIONS FOR NATIONALLY KNOWN MAGAZINES. 
THE ARREST WAS SOLELY ON THE GROUND THAT HE HAD VIOLATED AN ORDINANCE
BECAUSE HE HAD NOT OBTAINED THE PRIOR CONSENT OF THE OWNERS OF THE
RESIDENCES SOLICITED.  BREARD, A RESIDENT OF TEXAS, WAS IN CHARGE OF A
CREW OF SOLICITORS WHO GO FROM HOUSE TO HOUSE IN THE VARIOUS CITIES AND
TOWNS IN THE AREA UNDER BREARD'S MANAGEMENT AND SOLICIT SUBSCRIPTIONS
FOR NATIONALLY KNOWN MAGAZINES AND PERIODICALS, INCLUDING AMONG OTHERS
THE SATURDAY EVENING POST, LADIES' HOME JOURNAL, COUNTRY GENTLEMAN,
HOLIDAY, NEWSWEEK, AMERICAN HOME, COSMOPOLITAN, ESQUIRE, PIC, PARENTS,
TODAY'S WOMAN AND TRUE.  THESE SOLICITORS SPEND ONLY A FEW DAYS IN EACH
CITY, DEPENDING UPON ITS SIZE.  KEYSTONE SENDS A CARD FROM ITS HOME
OFFICE TO THE NEW SUBSCRIBERS ACKNOWLEDGING RECEIPT OF THE SUBSCRIPTION
AND THEREAFTER THE PERIODICAL IS FORWARDED TO THE SUBSCRIBER BY THE
PUBLISHER IN INTERSTATE COMMERCE THROUGH THE MAILS. 

THE ORDINANCE UNDER WHICH THE ARREST WAS MADE, SO FAR AS IS HERE
PERTINENT, READS AS FOLLOWS: 

"SECTION 1.  BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ALEXANDRIA,
LOUISIANA, IN LEGAL SESSION CONVENED THAT THE PRACTICE OF GOING IN AND
UPON PRIVATE RESIDENCES IN THE CITY OF ALEXANDRIA, LOUISIANA BY
SOLICITORS, PEDDLERS, HAWKERS, ITINERANT MERCHANTS OR TRANSIENT VENDORS
OF MERCHANDISE NOT HAVING BEEN REQUESTED OR INVITED SO TO DO BY THE
OWNER OR OWNERS, OCCUPANT OR OCCUPANTS OF SAID PRIVATE RESIDENCES FOR
THE PURPOSE OF SOLICITING ORDERS FOR THE SALE OF GOODS, WARES AND
MERCHANDISE AND/OR DISPOSING OF AND/OR PEDDLING OR HAWKING THE SAME IS
DECLARED TO BE A NUISANCE AND PUNISHABLE AS SUCH NUISANCE AS A
MISDEMEANOR." 

IT, OR ONE OF SIMILAR IMPORT, HAS BEEN ON THE STATUTE BOOKS OF
ALEXANDRIA FOR MANY YEARS.  IT IS STIPULATED THAT: 

"SUCH ORDINANCE WAS ENACTED BY THE CITY COUNCIL, AMONG OTHER REASONS,
BECAUSE SOME HOUSEHOLDERS COMPLAINED TO THOSE IN AUTHORITY THAT IN SOME
INSTANCES, FOR ONE REASON OR ANOTHER, SOLICITORS WERE UNDESIRABLE OR
DISCOURTEOUS, AND SOME HOUSEHOLDERS COMPLAINED THAT, WHETHER A
SOLICITOR WAS COURTEOUS OR NOT, THEY DID NOT DESIRE ANY UNINVITED
INTRUSION INTO THE PRIVACY OF THEIR HOME." 

THE PROTECTIVE PURPOSES OF THE ORDINANCE WERE UNDERSCORED BY THE
SUPREME COURT OF LOUISIANA IN ITS OPINION.  217 LA. 820, AT 825-828, 47
SO.2D 553, AT 555. 

AT APPELLANTHS TRIAL FOR VIOLATION OF THE ORDINANCE, THERE WAS A
MOTION TO QUASH ON THE GROUND THAT THE ORDINANCE VIOLATES THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION;
THAT IT VIOLATES THE FEDERAL COMMERCE CLAUSE; AND THAT IT VIOLATES THE
GUARANTEES OF THE FIRST AMENDMENT OF FREEDOM OF SPEECH AND OF THE
PRESS, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES.  APPELLANT'S MOTION TO QUASH WAS
OVERRULED BY THE TRIAL COURT AND HE WAS FOUND GUILTY AND SENTENCED TO
PAY A $25 FINE OR SERVE 30 DAYS IN JAIL.  THE SUPREME COURT OF
LOUISIANA AFFIRMED APPELLANTHS CONVICTION AND EXPRESSLY REJECTED THE
FEDERAL CONSTITUTIONAL OBJECTIONS.  217 LA. 820, 47 SO.2D 553.  THE
CASE IS HERE ON APPEAL, 28 U.S.C. SEC. 1257; JAMISON V. TEXAS, 318 U.S.
413. 

ALL DECLARE FOR LIBERTY AND PROCEED TO DISAGREE AMONG THEMSELVES AS
TO ITS TRUE MEANING.  THERE IS EQUAL UNANIMITY THAT OPPORTUNISTS, FOR
PRIVATE GAIN, CANNOT BE PERMITTED TO ARM THEMSELVES WITH AN ACCEPTABLE
PRINCIPLE, SUCH AS THAT OF A RIGHT TO WORK, A PRIVILEGE TO ENGAGE IN
INTERSTATE COMMERCE, OR A FREE PRESS, AND PROCEED TO USE IT AS AN IRON
STANDARD TO SMOOTH THEIR PATH BY CRUSHING THE LIVING RIGHTS OF OTHERS
TO PRIVACY AND REPOSE.  THIS CASE CALLS FOR AN ADJUSTMENT OF
CONSTITUTIONAL RIGHTS IN THE LIGHT OF THE PARTICULAR LIVING CONDITIONS
OF THE TIME AND PLACE.  EVERYONE CANNOT HAVE HIS OWN WAY AND EACH MUST
YIELD SOMETHING TO THE REASONABLE SATISFACTION OF THE NEEDS OF ALL. 

IT IS TRUE THAT THE KNOCKER ON THE FRONT DOOR IS TREATED AS AN
INVITATION OR LICENSE TO ATTEMPT AN ENTRY, JUSTIFYING INGRESS TO THE
HOME BY SOLICITORS, HAWKERS AND PEDDLERS FOR ALL KINDS OF SALABLE
ARTICLES.  FN1  WHEN SUCH VISITORS ARE BARRED FROM PREMISES BY NOTICE
OR ORDER, HOWEVER, SUBSEQUENT TRESPASSES HAVE BEEN PUNISHED.  FN2  DOOR
TO-DOOR CANVASSING HAS FLOURISHED INCREASINGLY IN RECENT YEARS WITH THE
READY MARKET FURNISHED BY THE RAPID CONCENTRATION OF HOUSING.  THE
INFREQUENT AND STILL WELCOME SOLICITOR TO THE RURAL HOME BECAME TO SOME
A RECURRING NUISANCE IN TOWNS WHEN THE VISITS WERE MULTIPLIED.  FN3
UNWANTED KNOCKS ON THE DOOR BY DAY OR NIGHT ARE A NUISANCE, OR WORSE,
TO PEACE AND QUIET.  THE LOCAL RETAIL MERCHANT, TOO, HAS NOT BEEN
UNMINDFUL OF THE EFFECTIVE COMPETITION FURNISHED BY HOUSE-TO-HOUSE
SELLING IN MANY LINES.  AS A MATTER OF BUSINESS FAIRNESS, IT MAY BE
THOUGHT NOT REALLY SPORTING TO CORNER THE QUARRY IN HIS HOME AND
THROUGH HIS OPEN DOOR PUT PRESSURE ON THE PROSPECT TO PURCHASE.  AS THE
EXIGENCIES OF TRADE ARE NOT ORDINARILY EXPECTED TO HAVE A HIGHER RATING
CONSTITUTIONALLY THAN THE TRANQUILLITY OF THE FIRESIDE, RESPONSIBLE
MUNICIPAL OFFICERS HAVE SOUGHT A WAY TO CURB THE ANNOYANCES WHILE
PRESERVING COMPLETE FREEDOM FOR DESIRABLE VISITORS TO THE HOMES.  THE
IDEA OF BARRING CLASSIFIED SALESMEN FROM HOMES BY MEANS OF NOTICES
POSTED BY INDIVIDUAL HOUSEHOLDERS WAS REJECTED EARLY AS LESS PRACTICAL
THAN AN ORDINANCE REGULATING SOLICITORS.  FN4 

THE TOWN OF GREEN RIVER, WYOMING, UNDERTOOK IN 1931 TO REMEDY BY
ORDINANCE THE IRRITATING INCIDENTS OF HOUSE-TO-HOUSE CANVASSING FOR
SALES.  THE SUBSTANCE OF THAT ORDINANCE, SO FAR AS HERE MATERIAL, IS
THE SAME AS THAT OF ALEXANDRIA, LOUISIANA.  FN5  THE GREEN RIVER
ORDINANCE WAS SUSTAINED BY THE CIRCUIT COURT OF APPEALS OF THE TENTH
CIRCUIT IN 1933 AGAINST AN ATTACK BY A NONRESIDENT CORPORATION, A
SOLICITOR OF ORDERS, THROUGH A BILL FOR AN INJUNCTION TO PROHIBIT ITS
ENFORCEMENT, ON THE FEDERAL CONSTITUTIONAL GROUNDS OF INTERFERENCE WITH
INTERSTATE COMMERCE, DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF
LAW, AND DENIAL OF THE EQUAL PROTECTION OF THE LAWS.  TOWN OF GREEN
RIVER V. FULLER BRUSH CO., 65 F. ID 112.  NO REVIEW OF THAT DECISION
WAS SOUGHT.  AN EMPLOYEE OF THE BRUSH COMPANY CHALLENGED THE SAME
ORDINANCE AGAIN IN THE COURTS OF WYOMING IN 1936 ON A PROSECUTION BY
THE TOWN FOR THE MISDEMEANOR OF VIOLATING ITS TERMS.  ON THIS ATTACK
CERTAIN PURELY STATE GROUNDS WERE RELIED UPON, WHICH WE NEED NOT
NOTICE, AND THE CHARGES OF VIOLATION OF THE FEDERAL CONSTITUTION WERE
REPEATED.  THE ORDINANCE WAS HELD VALID BY THE SUPREME COURT OF
WYOMING.  TOWN OF GREEN RIVER V. BUNGER, 50 WYO. 52, 58 P.2D 456.  FN6 

DUE PROCESS.  - ON APPEAL TO THIS COURT, APPELLANT URGED PARTICULARLY
THE UNCONSTITUTIONALITY UNDER THE FOURTEENTH AMENDMENT DUE PROCESS
CLAUSE OF SUCH UNREASONABLE RESTRAINTS AS THE GREEN RIVER ORDINANCE
PLACED ON "THE RIGHT TO ENGAGE IN ONE OF THE COMMON OCCUPATIONS OF
LIFE," CITING, INTER ALIA, NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262,
278, AND ADAMS V. TANNER, 244 U.S. 590.  HE ALSO RELIED UPON THE
ALLEGED PROHIBITION OF INTERSTATE COMMERCE UNDER THE GUISE OF A POLICE
REGULATION.  FN7 

HERE THIS COURT DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION.  300 U.S. 638.  FOR AN ANSWER TO THE ARGUMENT THAT THE
ORDINANCE DENIED DUE PROCESS BECAUSE OF ITS UNREASONABLE RESTRAINT ON
THE RIGHT TO ENGAGE IN A LEGITIMATE OCCUPATION, THIS COURT CITED THREE
CASES:  GUNDLING V. CHICAGO, 177 U.S. 183; FN8  WESTERN TURF
ASSOCIATION V. GREENBERG, 204 U.S. 359; FN9  AND WILLIAMS V. ARKANSAS,
217 U.S. 79.  FN10 

THE OPINIONS OF THIS COURT SINCE THIS GREEN RIVER CASE HAVE NOT GIVEN
ANY GROUND TO ARGUE THAT THE POLICE POWER OF A STATE OVER SOLICITING
HAS CONSTITUTIONAL INFIRMITIES UNDER THE DUE PROCESS PRINCIPLE EMBODIED
IN THE CONCEPT OF FREEDOM TO CARRY ON AN INOFFENSIVE TRADE OR
BUSINESS.  DECISIONS SUCH AS LIEBMANN AND TANNER, SUPRA, INVALIDATING
LEGISLATIVE ACTION, ARE HARDLY IN POINT HERE.  THE FORMER REQUIRED A
CERTIFICATE OF CONVENIENCE AND NECESSITY TO MANUFACTURE ICE, AND THE
LATTER PROHIBITED EMPLOYMENT AGENCIES FROM RECEIVING REMUNERATION FOR
THEIR SERVICES.  THE GREEN RIVER ORDINANCE CAN BE CHARACTERIZED AS
PROHIBITORY OF APPELLANT'S LEGITIMATE BUSINESS OF OBTAINING
SUBSCRIPTIONS TO PERIODICALS ONLY IN THE LIMITED SENSE OF FORBIDDING
SOLICITATION OF SUBSCRIPTIONS BY HOUSE-TO-HOUSE CANVASS WITHOUT
INVITATION.  ALL REGULATORY LEGISLATION IS PROHIBITORY IN THAT SENSE. 
THE USUAL METHODS OF SOLICITATION - RADIO, PERIODICALS, MAIL, LOCAL
AGENCIES - ARE OPEN.  FN11  FURTHERMORE, NEITHER CASE IS IN AS STRONG A
POSITION TODAY AS IT WAS WHEN BUNGER APPEALED.  SEE OLSEN V. NEBRASKA,
313 U.S. 236, 243 ET SEQ., AND LINCOLN UNION V. NORTHWESTERN CO., 335
U.S. 525, 535. 

THE CONSTITUTION'S PROTECTION OF PROPERTY RIGHTS DOES NOT MAKE A
STATE OR A CITY IMPOTENT TO GUARD ITS CITIZENS AGAINST THE ANNOYANCES
OF LIFE BECAUSE THE REGULATION MAY RESTRICT THE MANNER OF DOING A
LEGITIMATE BUSINESS.  FN12  THE QUESTION OF A MAN'S RIGHT TO CARRY ON
WITH PROPRIETY A STANDARD METHOD OF SELLING IS PRESENTED HERE IN ITS
MOST APPEALING FORM - AN ASSERTION BY A DOOR-TO-DOOR SOLICITOR THAT THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT PERMIT A STATE
OR ITS SUBDIVISIONS TO DEPRIVE A SPECIALIST IN DOOR-TO-DOOR SELLING OF
HIS MEANS OF LIVELIHOOD.  BUT PUTTING ASIDE THE ARGUMENT THAT AFTER ALL
IT IS THE COMMERCE, I.E., SALES OF PERIODICALS, AND NOT THE METHODS,
THAT IS PETITIONER'S BUSINESS, WE THINK THAT EVEN A LEGITIMATE
OCCUPATION MAY BE RESTRICTED OR PROHIBITED IN THE PUBLIC INTEREST.  SEE
THE DISSENT IN NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262, 280, 303. 
THE PROBLEM IS LEGISLATIVE WHERE THERE ARE REASONABLE BASES FOR
LEGISLATIVE ACTION.  FN13  WE HOLD THAT THIS ORDINANCE IS NOT INVALID
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

COMMERCE CLAUSE.  - NOR DID THIS COURT IN BUNGER CONSIDER THE GREEN
RIVER ORDINANCE INVALID UNDER THE COMMERCE CLAUSE AS AN UNREASONABLE
BURDEN UPON OR AN INTERFERENCE WITH INTERSTATE COMMERCE.  FN14  AS
AGAINST THE CASES CITED IN BUNGERHS BEHALF, THIS COURT RELIED UPON
ASBELL V. KANSAS, 209 U.S. 251, 254, 255(ALLOWING KANSAS TO HAVE ITS
OWN INSPECTION FOR CATTLE IMPORTED INTO THE STATE, EXCEPT FOR IMMEDIATE
SLAUGHTER); SAVAGE V. JONES, 225 U.S. 501, 525(ALLOWING A STATE TO
REGULATE THE SALE AND REQUIRE A FORMULA FOR STOCK FEEDS); HARTFORD
INDEMNITY CO. V. ILLINOIS, 298 U.S. 155, 158(UPHOLDING AN ILLINOIS
STATUTE REQUIRING COMMISSION MERCHANTS TO KEEP RECORD OF OUT-OF-STATE
CONSIGNMENTS AND OBTAIN A LICENSE AND GIVE A BOND).  FN15 

APPELLANT DOES NOT, OF COURSE, ARGUE THAT THE COMMERCE CLAUSE FORBIDS
ALL LOCAL REGULATION OF SOLICITATION FOR INTERSTATE BUSINESS. 

"UNDER OUR CONSTITUTIONAL SYSTEM, THERE NECESSARILY REMAINS TO THE
STATES, UNTIL CONGRESS ACTS, A WIDE RANGE FOR THE PERMISSIBLE EXERCISE
OF POWER APPROPRIATE TO THEIR TERRITORIAL JURISDICTION ALTHOUGH
INTERSTATE COMMERCE MAY BE AFFECTED.  ...  STATES ARE THUS ENABLED TO
DEAL WITH LOCAL EXIGENCIES AND TO EXERT IN THE ABSENCE OF CONFLICT WITH
FEDERAL LEGISLATION AN ESSENTIAL PROTECTIVE POWER."  FN16 

SUCH STATE POWER HAS LONG BEEN RECOGNIZED.  FN17  APPELLANT ARGUES
THAT THE ORDINANCE VIOLATES THE COMMERCE CLAUSE "BECAUSE THE PRACTICAL
OPERATION OF THE ORDINANCE, AS APPLIED TO APPELLANT AND OTHERS
SIMILARLY SITUATED, IMPOSES AN UNDUE AND DISCRIMINATORY BURDEN UPON
INTERSTATE COMMERCE AND IN EFFECT IS TANTAMOUNT TO A PROHIBITION OF
SUCH COMMERCE."  THE ATTEMPT TO SECURE THE HOUSEHOLDER'S CONSENT IS
SAID TO BE TOO COSTLY AND THE RESULTS NEGLIGIBLE.  THE EXTENT OF THIS
INTERSTATE BUSINESS, AS STIPULATED, IS LARGE.  FN18  APPELLANT ASSERTS
THAT GREEN RIVER V. BUNGER, SUPRA, IS INAPPLICABLE TO THE COMMERCE
ISSUE, ALTHOUGH THE POINT WAS MADE AND MET, BECAUSE THE EFFECT OF THE
ORDINANCE AT THAT DATE, 1936, UPON COMMERCE WAS "INCIDENTAL"  FN19  AND
BECAUSE IT WAS DECIDED "BEFORE THE WIDESPREAD ENACTMENT OF GREEN RIVER
ORDINANCES AND BEFORE THEIR ACTUAL AND CUMULATIVE EFFECT UPON
INTERSTATE COMMERCE COULD POSSIBLY BE FORECAST."  IT IS URGED THAT OUR
RECENT CASES OF HOOD & SONS V. DU MOND, 336 U.S. 525, AND DEAN MILK CO.
V. CITY OF MADISON, 340 U.S. 349, DEMONSTRATE THAT THIS COURT WILL NOT
PERMIT LOCAL INTERESTS TO PROTECT THEMSELVES AGAINST OUT-OF-STATE
COMPETITION BY CURTAILING INTERSTATE BUSINESS.  FN20 

IT WAS PARTLY BECAUSE THE REGULATION IN DEAN MILK CO. DISCRIMINATED
AGAINST INTERSTATE COMMERCE THAT IT WAS STRUCK DOWN.    "IN THUS
ERECTING AN ECONOMIC BARRIER PROTECTING A MAJOR LOCAL INDUSTRY AGAINST
COMPETITION FROM WITHOUT THE STATE, MADISON PLAINLY DISCRIMINATES
AGAINST INTERSTATE COMMERCE.  THIS IT CANNOT DO, EVEN IN THE EXERCISE
OF ITS UNQUESTIONED POWER TO PROTECT THE HEALTH AND SAFETY OF ITS
PEOPLE, IF REASONABLE NONDISCRIMINATORY ALTERNATIVES, ADEQUATE TO
CONSERVE LEGITIMATE LOCAL INTERESTS, ARE AVAILABLE."  ID. AT 354. 

NOR DOES THE CLAUSE AS TO ALTERNATIVES APPLY TO THE ALEXANDRIA
ORDINANCE.  INTERSTATE COMMERCE ITSELF KNOCKS ON THE LOCAL DOOR.  IT IS
ONLY BY REGULATING THAT KNOCK THAT THE INTERESTS OF THE HOME MAY BE
PROTECTED BY PUBLIC AS DISTINCT FROM PRIVATE ACTION.  FN21  LIKEWISE IN
HOOD & SONS V. DU MOND IT WAS THE DISCRIMINATION AGAINST OUT-OF-STATE
DEALERS THAT INVALIDATED THE ORDER REFUSING A LICENSE TO BUY MILK TO AN
OUT-OF-STATE DISTRIBUTOR.  FN22  WHERE NO DISCRIMINATION EXISTED, IN A
SOMEWHAT SIMILAR SITUATION, WE UPHELD THE STATE REGULATION AS A
PERMISSIBLE BURDEN ON COMMERCE.  FN23  SEE IN ACCORD, PANHANDLE EASTERN
PIPE LINE CO. V. MICHIGAN PUB. SERV. COMM'N, 341 U.S. 329, 336. 

WE RECOGNIZE THE IMPORTANCE TO PUBLISHERS OF OUR MANY PERIODICALS OF
THE HOUSE-TO-HOUSE METHOD OF SELLING BY SOLICITATION.  AS A MATTER OF
CONSTITUTIONAL LAW, HOWEVER, THEY IN THEIR BUSINESS OPERATIONS ARE IN
NO DIFFERENT POSITION SO FAR AS THE COMMERCE CLAUSE IS CONCERNED THAN
THE SELLERS OF OTHER WARES.  FN24  APPELLANT, AS THEIR REPRESENTATIVE
OR IN HIS OWN RIGHT AS A DOOR-TO-DOOR CANVASSER, IS NO MORE FREE TO
VIOLATE LOCAL REGULATIONS TO PROTECT PRIVACY THAN ARE OTHER
SOLICITORS.  AS WE SAID ABOVE, THE USUAL METHODS OF SEEKING BUSINESS
ARE LEFT OPEN BY THE ORDINANCE.  THAT SUCH METHODS DO NOT PRODUCE AS
MUCH BUSINESS AS HOUSE-TO-HOUSE CANVASSING IS, CONSTITUTIONALLY,
IMMATERIAL AND A MATTER FOR ADJUSTMENT AT THE LOCAL LEVEL IN THE
ABSENCE OF FEDERAL LEGISLATION.  CF. PRUDENTIAL INS. CO. V. BENJAMIN,
328 U.S. 408.  TAXATION THAT THREATENS INTERSTATE COMMERCE WITH
PROHIBITION OR DISCRIMINATION IS BAD, NIPPERT V. RICHMOND, 327 U.S.
416, 434, BUT REGULATION THAT LEAVES OUT-OF-STATE SELLERS ON THE SAME
BASIS AS LOCAL SELLERS CANNOT BE INVALID FOR THAT REASON. 

WHILE TAXATION AND LICENSING OF HAWKING OR PEDDLING, DEFINED AS
SELLING AND DELIVERING IN THE STATE, HAS LONG BEEN THOUGHT TO SHOW NO
VIOLATION OF THE COMMERCE CLAUSE, SOLICITATION OF ORDERS WITH
SUBSEQUENT INTERSTATE SHIPMENT HAS BEEN IMMUNE FROM SUCH AN EXACTION. 
FN25  THESE DECISIONS HAVE BEEN EXPLAINED BY THIS COURT AS EMBODYING A
PROTECTION OF COMMERCE AGAINST DISCRIMINATION MADE MOST APPARENT BY
FIXED-SUM LICENSES REGARDLESS OF SALES.  FN26  WHERE THE LEGISLATION IS
NOT AN ADDED FINANCIAL BURDEN UPON SALES IN COMMERCE OR AN EXACTION FOR
THE PRIVILEGE OF DOING INTERSTATE COMMERCE BUT A REGULATION OF LOCAL
MATTERS, DIFFERENT CONSIDERATIONS APPLY. 

WE THINK ALEXANDRIA'S ORDINANCE FALLS IN THE CLASSIFICATION OF
REGULATION.  THE ECONOMIC EFFECTS ON INTERSTATE COMMERCE IN DOOR-TO
DOOR SOLICITING CANNOT BE GAINSAID.  TO SOLICITORS SO ENGAGED,
ORDINANCES SUCH AS THIS COMPEL THE DEVELOPMENT OF A NEW TECHNIQUE OF
APPROACH TO PROSPECTS.  THEIR LOCAL RETAIL COMPETITORS GAIN ADVANTAGES
FROM THE LOCATION OF THEIR STORES AND INVESTMENTS IN THEIR STOCK BUT
THE SOLICITOR RETAINS HIS FLEXIBILITY OF MOVEMENT AND FREEDOM FROM
HEAVY INVESTMENT. 

THE GENERAL USE OF THE GREEN RIVER TYPE OF ORDINANCE SHOWS ITS
ADAPTATION TO THE NEEDS OF THE MANY COMMUNITIES THAT HAVE ENACTED IT.
WE ARE NOT WILLING EVEN TO APPRAISE THE SUGGESTION, UNSUPPORTED IN THE
RECORD, THAT SUCH WIDE USE SPRINGS PREDOMINANTLY FROM THE SELFISH
INFLUENCE OF LOCAL MERCHANTS. 

EVEN BEFORE THIS COURT'S DECISION IN MARTIN V. STRUTHERS, 319 U.S.
141, HOLDING INVALID, WHEN APPLIED TO A PERSON DISTRIBUTING LEAFLETS
ADVERTISING A RELIGIOUS MEETING, AN ORDINANCE OF THE CITY OF STRUTHERS,
OHIO, FORBIDDING THE SUMMONING OF THE OCCUPANTS OF A RESIDENCE TO THE
DOOR, OUR LESS EXTREME CASES HAD CREATED COMMENT.  SEE CHAFEE, FREE
SPEECH IN THE UNITED STATES (1941), 406.  FN27 

TO THE CITY COUNCIL FALLS THE DUTY OF PROTECTING ITS CITIZENS AGAINST
THE PRACTICES DEEMED SUBVERSIVE OF PRIVACY AND OF QUIET.  A HOUSEHOLDER
DEPENDS FOR PROTECTION ON HIS CITY BOARD RATHER THAN CHURLISHLY
GUARDING HIS ENTRANCES WITH ORDERS FORBIDDING THE ENTRANCE OF
SOLICITORS.  A SIGN WOULD HAVE TO BE A SMALL BILLBOARD TO MAKE THE
DIFFERENTIATIONS BETWEEN THE WELCOME AND UNWELCOME THAT CAN BE WRITTEN
IN AN ORDINANCE ONCE CHEAPLY FOR ALL HOMES. 

"THE POLICE POWER OF A STATE EXTENDS BEYOND HEALTH, MORALS AND
SAFETY, AND COMPREHENDS THE DUTY, WITHIN CONSTITUTIONAL LIMITATIONS, TO
PROTECT THE WELL-BEING AND TRANQUILITY OF A COMMUNITY."  FN28 

WHEN THERE IS A REASONABLE BASIS FOR LEGISLATION TO PROTECT THE
SOCIAL, AS DISTINGUISHED FROM THE ECONOMIC, WELFARE OF A COMMUNITY, IT
IS NOT FOR THIS COURT BECAUSE OF THE COMMERCE CLAUSE TO DENY THE
EXERCISE LOCALLY OF THE SOVEREIGN POWER OF LOUISIANA.  FN29  CHANGING
LIVING CONDITIONS OR VARIATIONS IN THE EXPERIENCES OR HABITS OF
DIFFERENT COMMUNITIES MAY WELL CALL FOR DIFFERENT LEGISLATIVE
REGULATIONS AS TO METHODS AND MANNERS OF DOING BUSINESS.  POWERS OF
MUNICIPALITIES ARE SUBJECT TO CONTROL BY THE STATES.  THEIR JUDGMENT OF
LOCAL NEEDS IS MADE FROM A MORE INTIMATE KNOWLEDGE OF LOCAL CONDITIONS
THAN THAT OF ANY OTHER LEGISLATIVE BODY.  WE CANNOT SAY THAT THIS
ORDINANCE OF ALEXANDRIA SO BURDENS OR IMPEDES INTERSTATE COMMERCE AS TO
EXCEED THE REGULATORY POWERS OF THAT CITY. 

FIRST AMENDMENT.  - FINALLY WE COME TO A POINT NOT HERETOFORE URGED
IN THIS COURT AS A GROUND FOR THE INVALIDATION OF A GREEN RIVER
ORDINANCE.  THIS IS THAT SUCH AN ORDINANCE IS AN ABRIDGMENT OF FREEDOM
OF SPEECH AND THE PRESS.  ONLY THE PRESS OR ORAL ADVOCATES OF IDEAS
COULD URGE THIS POINT.  IT WAS NOT OPEN TO THE SOLICITORS FOR GADGETS
OR BRUSHES.  THE POINT IS NOT THAT THE PRESS IS FREE OF THE ORDINARY
RESTRAINTS AND REGULATIONS OF THE MODERN STATE, SUCH AS TAXATION OR
LABOR REGULATION, REFERRED TO ABOVE AT N. 24, BUT, AS STATED IN
APPELLANT'S BRIEF, "BECAUSE THE ORDINANCE PLACES AN ARBITRARY,
UNREASONABLE AND UNDUE BURDEN UPON A WELL ESTABLISHED AND ESSENTIAL
METHOD OF DISTRIBUTION AND CIRCULATION OF LAWFUL MAGAZINES AND
PERIODICALS AND, IN EFFECT, IS TANTAMOUNT TO A PROHIBITION OF THE
UTILIZATION OF SUCH METHOD."  REGULATION NECESSARILY HAS ELEMENTS OF
PROHIBITION.  THUS THE ARGUMENT IS NOT THAT THE MONEYMAKING ACTIVITIES
OF THE SOLICITOR ENTITLE HIM TO GO "IN OR UPON PRIVATE RESIDENCES" AT
WILL, BUT THAT THE DISTRIBUTION OF PERIODICALS THROUGH DOOR-TO-DOOR
CANVASSING IS ENTITLED TO FIRST AMENDMENT PROTECTION.  FN30  THIS KIND
OF DISTRIBUTION IS SAID TO BE PROTECTED BECAUSE THE MERE FACT THAT
MONEY IS MADE OUT OF THE DISTRIBUTION DOES NOT BAR THE PUBLICATIONS
FROM FIRST AMENDMENT PROTECTION.  FN31  WE AGREE THAT THE FACT THAT
PERIODICALS ARE SOLD DOES NOT PUT THEM BEYOND THE PROTECTION OF THE
FIRST AMENDMENT.  FN32  THE SELLING, HOWEVER, BRINGS INTO THE
TRANSACTION A COMMERCIAL FEATURE. 

THE FIRST AND FOURTEENTH AMENDMENTS HAVE NEVER BEEN TREATED AS
ABSOLUTES.  FN33  FREEDOM OF SPEECH OR PRESS DOES NOT MEAN THAT ONE CAN
TALK OR DISTRIBUTE WHERE, WHEN AND HOW ONE CHOOSES.  RIGHTS OTHER THAN
THOSE OF THE ADVOCATES ARE INVOLVED.  BY ADJUSTMENT OF RIGHTS, WE CAN
HAVE BOTH FULL LIBERTY OF EXPRESSION AND AN ORDERLY LIFE. 

THE CASE THAT COMES NEAREST TO SUPPORTING APPELLANT'S CONTENTION IS
MARTIN V. STRUTHERS, 319 U.S. 141.  THERE A MUNICIPAL ORDINANCE
FORBIDDING ANYONE SUMMONING THE OCCUPANTS OF A RESIDENCE TO THE DOOR TO
RECEIVE ADVERTISEMENTS WAS HELD INVALID AS APPLIED TO THE FREE
DISTRIBUTION OF DODGERS "ADVERTISING A RELIGIOUS MEETING."  ATTENTION
WAS DIRECTED IN N. 1 OF THAT CASE TO THE FACT THAT THE ORDINANCE WAS
NOT AIMED "SOLELY AT COMMERCIAL ADVERTISING."  IT WAS SAID: 

"THE ORDINANCE DOES NOT CONTROL ANYTHING BUT THE DISTRIBUTION OF
LITERATURE, AND IN THAT RESPECT IT SUBSTITUTES THE JUDGMENT OF THE
COMMUNITY FOR THE JUDGMENT OF THE INDIVIDUAL HOUSEHOLDER."  PP. 143
144. 

THE DECISION TO RELEASE THE DISTRIBUTOR WAS BECAUSE: 

"FREEDOM TO DISTRIBUTE INFORMATION TO EVERY CITIZEN WHEREVER HE
DESIRES TO RECEIVE IT IS SO CLEARLY VITAL TO THE PRESERVATION OF A FREE
SOCIETY THAT, PUTTING ASIDE REASONABLE POLICE AND HEALTH REGULATIONS OF
TIME AND MANNER OF DISTRIBUTION, IT MUST BE FULLY PRESERVED."  PP. 146
147. 

THERE WAS DISSENT EVEN TO THIS CAREFULLY PHRASED APPLICATION OF THE
PRINCIPLES OF THE FIRST AMENDMENT.  AS NO ELEMENT OF THE COMMERCIAL
ENTERED INTO THIS FREE SOLICITATION AND THE OPINION WAS NARROWLY
LIMITED TO THE PRECISE FACT OF THE FREE DISTRIBUTION OF AN INVITATION
TO RELIGIOUS SERVICES, WE FEEL THAT IT IS NOT NECESSARILY INCONSISTENT
WITH THE CONCLUSION REACHED IN THIS CASE. 

IN MARSH V. ALABAMA, 326 U.S. 501, AND TUCKER V. TEXAS, 326 U.S. 517,
FN34  A STATE WAS HELD BY THIS COURT UNABLE TO PUNISH FOR TRESPASS,
AFTER NOTICE UNDER A STATE CRIMINAL STATUTE, CERTAIN DISTRIBUTORS OF
PRINTED MATTER, MORE RELIGIOUS THAN COMMERCIAL.  THE STATUTE WAS HELD
INVALID UNDER THE PRINCIPLES OF THE FIRST AMENDMENT.  IN THE MARSH CASE
IT WAS A PRIVATE CORPORATION, IN THE TUCKER CASE THE UNITED STATES,
THAT OWNED THE PROPERTY USED AS PERMISSIVE PASSWAYS IN COMPANY AND
GOVERNMENT-OWNED TOWNS.  IN NEITHER CASE WAS THERE DEDICATION TO PUBLIC
USE BUT IT SEEMS FAIR TO SAY THAT THE PERMISSIVE USE OF THE WAYS WAS
CONSIDERED EQUAL TO SUCH DEDICATION.  SUCH PROTECTION WAS NOT EXTENDED
TO COLPORTEURS OFFENDING AGAINST SIMILAR STATE TRESPASS LAWS BY
DISTRIBUTING, AFTER NOTICE TO DESIST, LIKE PUBLICATIONS TO THE TENANTS
IN A PRIVATE APARTMENT HOUSE.  HALL V. COMMONWEALTH, 188 VA. 72, 49
S.E.2D 369, APPEAL, AFTER CONVICTION, ON THE GROUND OF DENIAL OF FIRST
AMENDMENT RIGHTS, DISMISSED ON MOTION OF APPELLEE TO DISMISS BECAUSE OF
LACK OF SUBSTANCE IN THE QUESTION, 335 U.S. 875, 912; SEE N. 2, SUPRA. 

SINCE IT IS NOT PRIVATE INDIVIDUALS BUT THE LOCAL AND FEDERAL
GOVERNMENTS THAT ARE PROHIBITED BY THE FIRST AND FOURTEENTH AMENDMENTS
FROM ABRIDGING FREE SPEECH OR PRESS, HALL V. VIRGINIA DOES NOT RULE A
CONVICTION FOR TRESPASS AFTER NOTICE BY ORDINANCE.  HOWEVER, IF AS WE
HAVE SHOWN ABOVE, P. 640, A CITY COUNCIL MAY SPEAK FOR THE CITIZENS ON
MATTERS SUBJECT TO THE POLICE POWER, WE WOULD HAVE IN THE PRESENT
PROSECUTION THE TIME-HONORED OFFENSE OF TRESPASS ON PRIVATE GROUNDS
AFTER NOTICE.  THUS THE MARSH AND TUCKER CASES ARE NOT APPLICABLE
HERE. 

THIS MAKES THE CONSTITUTIONALITY OF ALEXANDRIA'S ORDINANCE TURN UPON
A BALANCING OF THE CONVENIENCES BETWEEN SOME HOUSEHOLDERS' DESIRE FOR
PRIVACY AND THE PUBLISHER'S RIGHT TO DISTRIBUTE PUBLICATIONS IN THE
PRECISE WAY THAT THOSE SOLICITING FOR HIM THINK BRINGS THE BEST
RESULTS.  THE ISSUE BRINGS INTO COLLISION THE RIGHTS OF THE HOSPITABLE
HOUSEWIFE, PEERING ON MONDAY MORNING AROUND HER CHAINED DOOR, WITH
THOSE OF MR. BREARD'S COURTEOUS, WELL-TRAINED BUT POSSIBLY PERSISTENT
SOLICITOR, OFFERING A BARGAIN ON CULTURE AND INFORMATION THROUGH A
JOINT SUBSCRIPTION TO THE SATURDAY EVENING POST, PIC AND TODAY'S
WOMAN.  BEHIND THE HOUSEWIFE ARE MANY HOUSEWIVES AND HOME-OWNERS IN THE
TOWNS WHERE GREEN RIVER ORDINANCES OFFER THEIR AID.  BEHIND MR. BREARD
ARE "KEYSTONE" WITH AN ANNUAL BUSINESS OF $5,000,000 IN SUBSCRIPTIONS
AND THE PERIODICALS WITH THEIR USE OF HOUSE-TO-HOUSE CANVASSING TO
SECURE SUBSCRIBERS FOR THEIR VALUABLE PUBLICATIONS, TOGETHER WITH OTHER
HOUSEWIVES WHO DESIRE SOLICITORS TO OFFER THEM THE OPPORTUNITY AND
REMIND AND HELP THEM, AT THEIR DOORS, TO SUBSCRIBE FOR PUBLICATIONS. 

SUBSCRIPTIONS MAY BE MADE BY ANYONE INTERESTED IN RECEIVING THE
MAGAZINES WITHOUT THE ANNOYANCES OF HOUSE-TO-HOUSE CANVASSING.  WE
THINK THOSE COMMUNITIES THAT HAVE FOUND THESE METHODS OF SALE OBNOXIOUS
MAY CONTROL THEM BY ORDINANCE.  IT WOULD BE, IT SEEMS TO US, A MISUSE
OF THE GREAT GUARANTEES OF FREE SPEECH AND FREE PRESS TO USE THOSE
GUARANTEES TO FORCE A COMMUNITY TO ADMIT THE SOLICITORS OF PUBLICATIONS
TO THE HOME PREMISES OF ITS RESIDENTS.  WE SEE NO ABRIDGMENT OF THE
PRINCIPLES OF THE FIRST AMENDMENT IN THIS ORDINANCE.  AFFIRMED. 

FN1 RESTATEMENT, TORTS, SEC. 167; COOLEY ON TORTS (4TH ED.)  SEC. 
248. 

FN2  HALL V. COMMONWEALTH, 188 VA. 72, 49 S.E.2D 369, APPEAL
DISMISSED, 335 U.S. 875; STATUTES COLLECTED, MARTIN V. STRUTHERS, 319
U.S. 141, 147, N. 10. 

FN3  "WE MUST ASSUME THAT THE PRACTICE EXISTED IN THE TOWN AS THE
FIRST SECTION STATES, AND THAT IT HAD BECOME ANNOYING AND DISTURBING
AND OBJECTIONABLE TO AT LEAST SOME OF THE CITIZENS.  WE THINK LIKE
PRACTICES HAVE BECOME SO GENERAL AND COMMON AS TO BE OF JUDICIAL
KNOWLEDGE, AND THAT THE FREQUENT RINGING OF DOORBELLS OF PRIVATE
RESIDENCES BY ITINERANT VENDORS AND SOLICITORS IS IN FACT A NUISANCE TO
THE OCCUPANTS OF HOMES.  IT IS NOT APPELLEE AND ITS SOLICITORS AND
THEIR METHODS ALONE THAT MUST BE CONSIDERED IN DETERMINING THE
REASONABLENESS OF THE ORDINANCE, BUT MANY OTHERS AS WELL WHO SEEK IN
THE SAME WAY TO DISPOSE OF THEIR WARES.  ONE FOLLOWS ANOTHER UNTIL THE
RINGING DOORBELLS DISTURB THE QUIETUDE OF THE HOME AND BECOME A
CONSTANT ANNOYANCE."  TOWN OF GREEN RIVER V. FULLER BRUSH CO., 65 F.2D
112, 114.    FN4  TOWN OF GREEN RIVER V. BUNGER, 50 WYO. 52, 70, 58
P.2D 456, 462; CF. REAL SILK HOSIERY MILLS V. CITY OF RICHMOND, 298 F.
126. 

FN5  THE ORDINANCE NOW UNDER CONSIDERATION, SEC. 3, DOES NOT APPLY TO
"THE SALE, OR SOLICITING OF ORDERS FOR THE SALE, OF MILK, DAIRY
PRODUCTS, VEGETABLES, POULTRY, EGGS AND OTHER FARM AND GARDEN PRODUCE
...  "  APPELLANT MAKES NO POINT AGAINST THE PRESENT ORDINANCE ON THE
GROUND OF INVALID CLASSIFICATION.  CF. TIGNER V. TEXAS, 310 U.S. 141;
WILLIAMS V. ARKANSAS, 217 U.S. 79, 90. 

FN6  THE VALIDITY OF GREEN RIVER ORDINANCES HAS ALSO BEEN CONSIDERED
IN A NUMBER OF STATE COURTS.  FIVE STATES - COLORADO, LOUISIANA (IN
CASES PREVIOUS TO THE INSTANT ONE), NEW MEXICO, NEW YORK, AND WYOMING -
HAVE UPHELD THE ORDINANCE, AGAINST OBJECTIONS THAT IT WAS BEYOND THE
SCOPE OF THE POLICE POWER, DEPRIVED VENDORS OF PROPERTY RIGHTS WITHOUT
DUE PROCESS OF LAW, DEPRIVED THEM OF THE EQUAL PROTECTION OF THE LAWS,
AND INFRINGED UPON THE COMMERCE CLAUSE AND THE FIRST AND FOURTEENTH
AMENDMENTS.  MCCORMICK V. CITY OF MONTROSE, 105 COLO. 493, 99 P.2D 969;
SHREVEPORT V. CUNNINGHAM, 190 LA. 481, 182 SO. 649; ALEXANDRIA V.
JONES, 216 LA. 923, 45 SO.2D 79; GREEN V. GALLUP, 46 N.M. 71, 120 P.2D
619; PEOPLE V. BOHNKE, 287 N.Y. 154, 38 N.E.2D 478; GREEN RIVER V.
BUNGER, 50 WYO. 52, 58 P.2D 456. 

ELEVEN STATES, ON THE OTHER HAND, HAVE HELD SUCH ORDINANCES INVALID. 
ALL OF THESE STATES ACTED IN PART AT LEAST ON NONFEDERAL GROUNDS, AND
THE ONLY FEDERAL CONSTITUTIONAL ARGUMENT, WHICH WAS CONSIDERED BY THREE
STATES, WAS THAT BASED ON THE DUE PROCESS CLAUSE.  NO STATE COURT, IN
VOIDING THE ORDINANCE, HAS REACHED THE COMMERCE CLAUSE OR THE FIRST
AMENDMENT ISSUES URGED HERE.  THE PRINCIPAL GROUNDS RELIED ON HAVE BEEN
THAT THE PROHIBITED CONDUCT AMOUNTED AT MOST ONLY TO A PRIVATE NUISANCE
AND NOT A PUBLIC ONE; THAT THERE WAS NO SHOWING OF INJURY TO PUBLIC
HEALTH OR SAFETY BY THE PROHIBITED CONDUCT; THAT THERE WAS A VESTED
RIGHT IN A LAWFUL OCCUPATION, SO THAT IT WAS SUBJECT ONLY TO REGULATION
BUT NOT TO PROHIBITION; AND THAT THE ORDINANCE WAS BEYOND THE DELEGATED
POWERS OF THE MUNICIPALITY.  PRIOR V. WHITE, 132 FLA. 1, 180 SO.
347(NOT MORE THAN A PRIVATE NUISANCE); CLAY V. MATHEWS, 185 GA. 279,
194 S.E. 172(AFFIRMING WITHOUT OPINION BY AN EVENLY DIVIDED COURT);
DEBERRY V. LAGRANGE, 62 GA. APP. 74, 8 S.E.2D 146(NOT A NUISANCE;
INVADES AN INALIENABLE RIGHT TO THE OCCUPATION OF SOLICITING); OSCEOLA
V. BLAIR, 231 IOWA 770, 2 N.W.2D 83(NOT A NUISANCE, DEPRIVES PERSONS OF
A PROPERTY RIGHT IN THEIR OCCUPATION); MT. STERLING V. DONALDSON BAKING
CO., 287 KY. 781, 155 S.W.2D 237(NOT A PUBLIC NUISANCE, BEYOND THE
SCOPE OF THE MUNICIPAL POLICE POWER); JEWEL TEA CO. V. BEL AIR, 172 MD.
536, 192 A. 417(NOT A NUISANCE, NOT WITHIN DELEGATED POWERS OF
MUNICIPALITY); JEWEL TEA CO. V. GENEVA, 137 NEB. 768, 291 N.W. 664(NOT
A PUBLIC NUISANCE, ARBITRARY, VIOLATES DUE PROCESS CLAUSE, CITING JAY
BURNS BAKING CO. V. BRYAN, 264 U.S. 504); N.J. GOOD HUMOR, INC. V.
BOARD OF COMMISSIONERS, 124 N.J.L. 162, 11 A.2D 113(NOT A VALID POLICE
REGULATION, BEYOND POWERS OF MUNICIPALITY); MCALESTER V. GRAND UNION
TEA CO., 186 OKLA. 487, 98 P.2D 924(ONLY A PRIVATE NUISANCE);
ORANGEBURG V. FARMER, 181 S.C. 143, 186 S.E. 783(UNREASONABLE,
PROHIBITS A LAWFUL OCCUPATION, IN VIOLATION OF STATE AND FEDERAL DUE
PROCESS, ENACTED WITH IMPROPER MOTIVE); EX PARTE FAULKNER, 143 TEX. CR.
R. 272, 158 S.W.2D 525(BEYOND THE POWERS OF THE MUNICIPALITY); WHITE V.
CULPEPER, 172 VA. 630, 1 S.E.2D 269(NOT A PUBLIC NUISANCE). 

THE ORDINANCES IN THE BEL AIR AND CULPEPER CASES CONTAINED
DISCRIMINATORY PROVISIONS NOT INVOLVED IN THE INSTANT CASE.  IT SHOULD
BE NOTED ALSO THAT WHILE NEW YORK UPHELD THE ORDINANCE IN BOHNKE,
SUPRA, AS APPLIED TO DISTRIBUTION OF RELIGIOUS TRACTS, THAT CASE WAS
DECIDED BEFORE THIS COURT'S DECISION IN MARTIN V. STRUTHERS, 319 U.S.
141.  ENFORCEMENT OF GREEN RIVER ORDINANCES HAS SUBSEQUENTLY BEEN
ENJOINED AS AGAINST MEMBERS OF THE JEHOVAH'S WITNESSES SECT, IN DONLEY
V. COLORADO SPRINGS, 40 F.SUPP.  15, AND ZIMMERMAN V. LONDON (OHIO), 38
F.SUPP.  582. 

FN7  HE CITED:  REAL SILK HOSIERY MILLS V. PORTLAND, 268 U.S. 325; DI
SANTO V. PENNSYLVANIA, 273 U.S. 34; INTERNATIONAL TEXTBOOK CO. V. PIGG,
217 U.S. 91; ROGERS V. ARKANSAS, 227 U.S. 401; ROBBINS V. SHELBY TAXING
DISTRICT, 120 U.S. 489; BALDWIN V. SEELIG, INC., 294 U.S. 511; STEWART
V. MICHIGAN, 232 U.S. 665. 

FN8  AN ORDINANCE FORBIDDING THE SALE OF CIGARETTES WITHOUT A LICENSE
WAS UPHELD. 

"REGULATIONS RESPECTING THE PURSUIT OF A LAWFUL TRADE OR BUSINESS ARE
OF VERY FREQUENT OCCURRENCE IN THE VARIOUS CITIES OF THE COUNTRY, AND
WHAT SUCH REGULATIONS SHALL BE AND TO WHAT PARTICULAR TRADE, BUSINESS
OR OCCUPATION THEY SHALL APPLY, ARE QUESTIONS FOR THE STATE TO
DETERMINE, AND THEIR DETERMINATION COMES WITHIN THE PROPER EXERCISE OF
THE POLICE POWER BY THE STATE, AND UNLESS THE REGULATIONS ARE SO
UTTERLY UNREASONABLE AND EXTRAVAGANT IN THEIR NATURE AND PURPOSE THAT
THE PROPERTY AND PERSONAL RIGHTS OF THE CITIZEN ARE UNNECESSARILY, AND
IN A MANNER WHOLLY ARBITRARY, INTERFERED WITH OR DESTROYED WITHOUT DUE
PROCESS OF LAW, THEY DO NOT EXTEND BEYOND THE POWER OF THE STATE TO
PASS, AND THEY FORM NO SUBJECT FOR FEDERAL INTERFERENCE."  177 U.S. AT
188. 

FN9  A STATUTE MAKING IT UNLAWFUL TO REFUSE A PURCHASER OF A TICKET
ADMISSION TO A PLACE OF PUBLIC ENTERTAINMENT EXCEPT IN CERTAIN
CIRCUMSTANCES RELATING TO DRUNKENNESS AND VICE, WAS UPHELD. 

"DOES THE STATUTE DEPRIVE THE DEFENDANT OF ANY PROPERTY RIGHT WITHOUT
DUE PROCESS OF LAW?  WE ANSWER THIS QUESTION IN THE NEGATIVE. 
DECISIONS OF THIS COURT, FAMILIAR TO ALL, AND WHICH NEED NOT BE CITED,
RECOGNIZE THE POSSESSION, BY EACH STATE, OF POWERS NEVER SURRENDERED TO
THE GENERAL GOVERNMENT; WHICH POWERS THE STATE, EXCEPT AS RESTRAINED BY
ITS OWN CONSTITUTION OR THE CONSTITUTION OF THE UNITED STATES, MAY
EXERT NOT ONLY FOR THE PUBLIC HEALTH, THE PUBLIC MORALS AND THE PUBLIC
SAFETY, BUT FOR THE GENERAL OR COMMON GOOD, FOR THE WELL-BEING, COMFORT
AND GOOD ORDER OF THE PEOPLE."  204 U.S. AT 363. 

"SUCH A REGULATION, IN ITSELF JUST, IS LIKEWISE PROMOTIVE OF PEACE
AND GOOD ORDER AMONG THOSE WHO ATTEND PLACES OF PUBLIC ENTERTAINMENT OR
AMUSEMENT."  ID. AT 364. 

FN10  THE FOLLOWING SECTIONS OF A STATUTE OF ARKANSAS WERE UPHELD: 

"SEC. 1.  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON OR PERSONS, EXCEPT
AS HEREINAFTER PROVIDED IN SECTION 2 OF THIS ACT, TO DRUM OR SOLICIT
BUSINESS OR PATRONAGE FOR ANY HOTEL, LODGING HOUSE, EATING HOUSE, BATH
HOUSE, PHYSICIAN, MASSEUR, SURGEON, OR OTHER MEDICAL PRACTITIONER, ON
THE TRAIN, CARS, OR DEPOTS OF ANY RAILROAD OR COMMON CARRIER OPERATING
OR RUNNING WITHIN THE STATE OF ARKANSAS. 

     .         .         .      .         . 

"'SEC. 2.  THAT IT SHALL BE UNLAWFUL FOR ANY RAILROAD OR COMMON
CARRIER OPERATING A LINE WITHIN THE STATE OF ARKANSAS KNOWINGLY TO
PERMIT ITS TRAINS, CARS OR DEPOTS WITHIN THE STATE TO BE USED BY ANY
PERSON OR PERSONS FOR DRUMMING OR SOLICITING BUSINESS OR PATRONAGE FOR
ANY HOTEL, LODGING HOUSE, EATING HOUSE, BATH HOUSE, PHYSICIAN, MASSEUR,
SURGEON, OR OTHER MEDICAL PRACTITIONER, OR DRUMMING OR SOLICITING FOR
ANY BUSINESS OR PROFESSION WHATSOEVER; ...  '"  217 U.S. 86. 

THIS COURT QUOTED THE SUPREME COURT OF ARKANSAS AS SAYING: 

"'DRUMMERS WHO SWARM THROUGH THE TRAINS SOLICITING FOR PHYSICIANS,
BATH HOUSES, HOTELS, ETC., MAKE EXISTENCE A BURDEN TO THOSE WHO ARE
SUBJECTED TO THEIR REPEATED SOLICITATIONS.  IT IS TRUE THAT THE
TRAVELER MAY TURN A DEAF EAR TO THESE IMPORTUNITIES, BUT THIS DOES NOT
RENDER IT ANY THE LESS UNPLEASANT AND ANNOYING.  THE DRUMMER MAY KEEP
WITHIN THE LAW AGAINST DISORDERLY CONDUCT, AND STILL RENDER HIMSELF A
SOURCE OF ANNOYANCE TO TRAVELERS BY HIS MUCH BESEECHING TO BE ALLOWED
TO LEAD THE WAY TO A DOCTOR OR A HOTEL.'"  ID. 89. 

FN11  BUT CF. JENSEN, BURDENING INTERSTATE DIRECT SELLING, 12 ROCKY
MT. L. REV. 257, 275:  "TO DISCLAIM THIS ECONOMIC EFFECT OF UPHOLDING
THE ORDINANCE AND TO SUGGEST OTHER METHODS OF MERCHANDISING TO DIRECT
SELLING BUSINESSES SHORT OF LOCAL RETAILING, AS WAS DONE BY THE TENTH
CIRCUIT COURT OF APPEALS (65 F.2D 112), SHOWS A WOEFUL LACK OF
KNOWLEDGE OF THE ACTUAL PROBLEMS OF DIRECT-TO-CONSUMER MERCHANDISING." 

FN12  NEBBIA V. NEW YORK, 291 U.S. 502, 523: 

"UNDER OUR FORM OF GOVERNMENT THE USE OF PROPERTY AND THE MAKING OF
CONTRACTS ARE NORMALLY MATTERS OF PRIVATE AND NOT OF PUBLIC CONCERN. 
THE GENERAL RULE IS THAT BOTH SHALL BE FREE OF GOVERNMENTAL
INTERFERENCE.  BUT NEITHER PROPERTY RIGHTS NOR CONTRACT RIGHTS ARE
ABSOLUTE; FOR GOVERNMENT CANNOT EXIST IF THE CITIZEN MAY AT WILL USE
HIS PROPERTY TO THE DETRIMENT OF HIS FELLOWS, OR EXERCISE HIS FREEDOM
OF CONTRACT TO WORK THEM HARM.  EQUALLY FUNDAMENTAL WITH THE PRIVATE
RIGHT IS THAT OF THE PUBLIC TO REGULATE IT IN THE COMMON INTEREST." 
RAILWAY EXPRESS AGENCY V. NEW YORK, 336 U.S. 106; DANIEL V. FAMILY
SECURITY LIFE INS. CO., 336 U.S. 220. 

FN13  ARIZONA V. CALIFORNIA, 283 U.S. 423, 454-455; HENNEFORD V.
SILAS MASON CO., 300 U.S. 577, 586. 

FN14  CONSTITUTION, ART. I, SEC. 8. 

FN15  THE CASES CITED FOR BUNGER MAY BE EASILY DISTINGUISHED.  THE
CASES OF THE SHELBY COUNTY TAXING DISTRICT, ROGERS V. ARKANSAS, 227
U.S. 401, AND STEWART V. MICHIGAN, 232 U.S. 665, RELATE TO TAXES UPON
OR LICENSES TO DO AN INTERSTATE BUSINESS.  THE SAME IS TRUE OF REAL
SILK HOSIERY MILLS V. PORTLAND, 268 U.S. 325.  THERE IS, HOWEVER, IN
THIS LATTER CASE A STATEMENT THAT SHOULD BE NOTICED:  "NOR CAN WE
ACCEPT THE THEORY THAT AN EXPRESSED PURPOSE TO PREVENT POSSIBLE FRAUDS
IS ENOUGH TO JUSTIFY LEGISLATION WHICH REALLY INTERFERES WITH THE FREE
FLOW OF LEGITIMATE INTERSTATE COMMERCE.  SEE SHAFER V. FARMERS GRAIN
CO., 268 U.S. 189."  P. 336.  THAT SHOULD BE READ AS A COMMENT ON AN
ORDINANCE REQUIRING A LICENSE AND A BOND TO CARRY ON INTERSTATE
BUSINESS.  CF. PARKER V. BROWN, 317 U.S. 341, 361. 

THE STATUTE HELD INVALID IN THE INTERNATIONAL TEXTBOOK CASE, 217 U.S.
91, WAS ONE CONSTRUED TO REQUIRE A LICENSE TO TRANSACT INTERSTATE
BUSINESS.  BALDWIN V. SEELIG, 294 U.S. 511, HELD INVALID A STATE LAW
PROHIBITING THE SALE OF MILK IMPORTED FROM ANOTHER STATE UNLESS THE
PRICE PAID IN THE SELLING STATE REACHED THE MINIMUM PRICE REQUIREMENT
OF SELLERS IN THE REGULATING STATE.  THE DI SANTO CASE, 273 U.S. 34,
HOLDING INVALID AS A DIRECT BURDEN ON COMMERCE A STATE LAW REQUIRING
STEAMSHIP AGENTS TO PROCURE A LICENSE, CAN NO LONGER BE CITED AS
AUTHORITY FOR SUCH A RULING.  CALIFORNIA V. THOMPSON, 313 U.S. 109,
115. 

NONE OF THESE CASES REACH THE PROBLEM HERE UNDER CONSIDERATION OF
LOCAL REGULATION OF SOLICITORHS CONDUCT. 

FN16  KELLY V. WASHINGTON, 302 U.S. 1, 9-10. 

FN17  COOLEY V. BOARD OF WARDENS, 12 HOW.  299; EMERT V. MISSOURI,
156 U.S. 296; AUSTIN V. TENNESSEE, 179 U.S. 343; MINNESOTA RATE CASES,
230 U.S. 352, 402, 408; SOUTH CAROLINA DEPT. V. BARNWELL BROS., 303
U.S. 177, 187; CALIFORNIA V. THOMPSON, 313 U.S. 109; PARKER V. BROWN,
317 U.S. 341, 359, 362; TOOMER V. WITSELL, 334 U.S. 385, 394; PANHANDLE
EASTERN PIPE LINE CO. V. MICHIGAN PUB. SERV. COMM'N, 341 U.S. 329. 

"AS HAS BEEN SO OFTEN STATED BUT NEVERTHELESS SEEMS TO REQUIRE
CONSTANT REPETITION, NOT ALL BURDENS UPON COMMERCE, BUT ONLY UNDUE OR
DISCRIMINATORY ONES, ARE FORBIDDEN.  FOR, THOUGH 'INTERSTATE BUSINESS
MUST PAY ITS WAY,' A STATE CONSISTENTLY WITH THE COMMERCE CLAUSE CANNOT
PUT A BARRIER AROUND ITS BORDERS TO BAR OUT TRADE FROM OTHER STATES AND
THUS BRING TO NAUGHT THE GREAT CONSTITUTIONAL PURPOSE OF THE FATHERS IN
GIVING TO CONGRESS THE POWER 'TO REGULATE COMMERCE WITH FOREIGN
NATIONS, AND AMONG THE SEVERAL STATES  ...  '  NOR MAY THE PROHIBITION
BE ACCOMPLISHED IN THE GUISE OF TAXATION WHICH PRODUCES THE EXCLUDING
OR DISCRIMINATORY EFFECT."  NIPPERT V. RICHMOND, 327 U.S. 416, 425
426. 

AND CF. NELSON V. SEARS, ROEBUCK & CO., 312 U.S. 359, WHERE THE
MAINTENANCE OF RETAIL STORES WITHIN A STATE BY A CORPORATION ENGAGED IN
DIRECT MAIL SELLING WAS HELD TO PERMIT THE STATE TO TAX SUCH SALES TO
ITS RESIDENTS, EVEN THOUGH NONE OF THE CORPORATION'S AGENTS WITHIN THE
STATE HAD ANY CONNECTION WITH THE SALES. 

FN18  "THE SOLICITATION OF SUBSCRIPTIONS IN THE FIELD REGULARLY
ACCOUNTS FOR FROM 50% TO 60% OF THE TOTAL ANNUAL SUBSCRIPTION
CIRCULATION OF NATIONALLY-DISTRIBUTED MAGAZINES WHICH SUBMIT VERIFIED
CIRCULATION REPORTS TO THE AUDIT BUREAU OF CIRCULATIONS  ...  DURING
THE PERIOD FROM 1925 TO DATE, THE AVERAGE CIRCULATION PER ISSUE OF SUCH
MAGAZINES ATTRIBUTABLE TO FIELD SUBSCRIPTION SOLICITATION,  ...  HAS
AMOUNTED TO MORE THAN 30% OF THE TOTAL AVERAGE ANNUAL CIRCULATION PER
ISSUE  ...  "  THE TOTAL SUBSCRIPTION VALUE OBTAINED BY KEYSTONE
READERS SERVICE, APPELLANT'S EMPLOYER, IN 1948 WAS $5,319,423.40. 
THERE IS A NATIONAL ASSOCIATION OF MAGAZINE PUBLISHERS, A TRADE
ORGANIZATION WHOSE MEMBERS PUBLISH SOME 400 NATIONALLY DISTRIBUTED
MAGAZINES WITH A COMBINED CIRCULATION OF 140 MILLION COPIES.  THIS
ASSOCIATION SPONSORS AND MAINTAINS A CENTRAL REGISTRY PLAN TO WHICH
AGENCIES LIKE KEYSTONE, SOLICITING SUBSCRIPTIONS, BELONG. 

FN19  "INCIDENTAL" AS A TEST HAS NOT CONTINUED AS A USEFUL MANNER FOR
DETERMINING THE VALIDITY OF LOCAL REGULATION OF MATTERS AFFECTING
INTERSTATE COMMERCE. 

"SUCH REGULATIONS BY THE STATE ARE TO BE SUSTAINED, NOT BECAUSE THEY
ARE 'INDIRECT' RATHER THAN 'DIRECT,'  ...  NOT BECAUSE THEY CONTROL
INTERSTATE ACTIVITIES IN SUCH A MANNER AS ONLY TO AFFECT THE COMMERCE
RATHER THAN TO COMMAND ITS OPERATIONS.  BUT THEY ARE TO BE UPHELD
BECAUSE UPON A CONSIDERATION OF ALL THE RELEVANT FACTS AND
CIRCUMSTANCES IT APPEARS THAT THE MATTER IS ONE WHICH MAY APPROPRIATELY
BE REGULATED IN THE INTEREST OF THE SAFETY, HEALTH AND WELL-BEING OF
LOCAL COMMUNITIES, AND WHICH, BECAUSE OF ITS LOCAL CHARACTER, AND THE
PRACTICAL DIFFICULTIES INVOLVED, MAY NEVER BE ADEQUATELY DEALT WITH BY
CONGRESS."  PARKER V. BROWN, 317 U.S. 341, 362-363.    FN20  SO FAR AS
THIS ARGUMENT SEEKS TO BLAME THE PASSAGE OF THE ORDINANCE ON LOCAL
RETAILERS, WE DISREGARD IT.  SUCH ARGUMENTS SHOULD BE PRESENTED TO
LEGISLATORS, NOT TO COURTS.  ARIZONA V. CALIFORNIA, 283 U.S. 423, 455. 
SEE P. 639, INFRA. 

FN21  340 U.S. AT 354-355: 

"IF THE CITY OF MADISON PREFERS TO RELY UPON ITS OWN OFFICIALS FOR
INSPECTION OF DISTANT MILK SOURCES, SUCH INSPECTION IS READILY OPEN TO
IT WITHOUT HARDSHIP FOR IT COULD CHARGE THE ACTUAL AND REASONABLE COST
OF SUCH INSPECTION TO THE IMPORTING PRODUCERS AND PROCESSORS."    FN22
336 U.S. 525, 531-532, 533: 

"IT (THE OPINION IN BALDWIN V. SEELIG, 294 U.S. 511) RECOGNIZED, AS
DO WE, BROAD POWER IN THE STATE TO PROTECT ITS INHABITANTS AGAINST
PERILS TO HEALTH OR SAFETY, FRAUDULENT TRADERS AND HIGHWAY HAZARDS,
EVEN BY USE OF MEASURES WHICH BEAR ADVERSELY UPON INTERSTATE COMMERCE. 
BUT IT LAID REPEATED EMPHASIS UPON THE PRINCIPLE THAT THE STATE MAY NOT
PROMOTE ITS OWN ECONOMIC ADVANTAGES BY CURTAILMENT OR BURDENING OF
INTERSTATE COMMERCE. 

     .         .         .         .       . 

"THIS DISTINCTION BETWEEN THE POWER OF THE STATE TO SHELTER ITS
PEOPLE FROM MENACES TO THEIR HEALTH OR SAFETY AND FROM FRAUD, EVEN WHEN
THOSE DANGERS EMANATE FROM INTERSTATE COMMERCE, AND ITS LACK OF POWER
TO RETARD, BURDEN OR CONSTRICT THE FLOW OF SUCH COMMERCE FOR THEIR
ECONOMIC ADVANTAGE, IS ONE DEEPLY ROOTED IN BOTH OUR HISTORY AND OUR
LAW." 

FN23  MILK CONTROL BOARD V. EISENBERG FARM PRODUCTS, 306 U.S. 346. 

FN24 GIRAGI V. MOORE, 301 U.S. 670, 48 ARIZ. 33, 58 P.2D 1249, 49
ARIZ. 74, 64 P.2D 819; ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103,
132-133; ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 7. 

FN25  EMERT V. MISSOURI, 156 U.S. 296; SEE COMMONWEALTH V. OBER, 12
CUSH.  (MASS.)  493; CRENSHAW V. ARKANSAS, 227 U.S. 389, 399-400;
ROGERS V. ARKANSAS, 227 U.S. 401; CASKEY BAKING CO. V. VIRGINIA, 313
U.S. 117, 119. 

FN26  MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, 55-57; NIPPERT V.
RICHMOND, 327 U.S. 416, 421-425. 

FN27  "HOUSE TO HOUSE CANVASSING RAISES MORE SERIOUS PROBLEMS.  OF
ALL THE METHODS OF SPREADING UNPOPULAR IDEAS, THIS SEEMS THE LEAST
ENTITLED TO EXTENSIVE PROTECTION.  THE POSSIBILITIES OF PERSUASION ARE
SLIGHT COMPARED WITH THE CERTAINTIES OF ANNOYANCE.  GREAT AS IS THE
VALUE OF EXPOSING CITIZENS TO NOVEL VIEWS, HOME IS ONE PLACE WHERE A
MAN OUGHT TO BE ABLE TO SHUT HIMSELF UP IN HIS OWN IDEAS IF HE
DESIRES.  THERE HE SHOULD BE FREE NOT ONLY FROM UNREASONABLE SEARCHES
AND SEIZURES BUT ALSO FROM HEARING UNINVITED STRANGERS EXPOUND
DISTASTEFUL DOCTRINES.  A DOORBELL CANNOT BE DISREGARDED LIKE A
HANDBILL.  IT TAKES SEVERAL MINUTES TO ASCERTAIN THE PURPOSE OF A
PROPAGANDIST AND AT LEAST SEVERAL MORE TO GET RID OF HIM.  ...
MOREOVER, HOSPITABLE HOUSEWIVES DISLIKE TO LEAVE A VISITOR ON A WINDY
DOORSTEP WHILE HE EXPLAINS HIS ERRAND, YET ONCE HE IS INSIDE THE HOUSE
ROBBERY OR WORSE MAY HAPPEN.  SO PEDDLERS OF IDEAS AND SALESMEN OF
SALVATION IN ODD BRANDS SEEM TO CALL FOR REGULATION AS MUCH AS THE
REGULAR RUN OF COMMERCIAL CANVASSERS.  ... FREEDOM OF THE HOME IS AS
IMPORTANT AS FREEDOM OF SPEECH.  I CANNOT HELP WONDERING WHETHER THE
JUSTICES OF THE SUPREME COURT ARE QUITE AWARE OF THE EFFECT OF
ORGANIZED FRONT-DOOR INTRUSIONS UPON PEOPLE WHO ARE NOT SHELTERED FROM
ZEALOTS AND IMPOSTORS BY A STAFF OF SERVANTS OR THE LOCKED ENTRANCE OF
AN APARTMENT HOUSE." 

FN28  KOVACS V. COOPER, 336 U.S. 77, 83. 

FN29  UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 154:
"BUT BY THEIR VERY NATURE SUCH INQUIRIES, WHERE THE LEGISLATIVE
JUDGMENT IS DRAWN IN QUESTION, MUST BE RESTRICTED TO THE ISSUE WHETHER
ANY STATE OF FACTS EITHER KNOWN OR WHICH COULD REASONABLY BE ASSUMED
AFFORDS SUPPORT FOR IT.  HERE THE DEMURRER CHALLENGES THE VALIDITY OF
THE STATUTE ON ITS FACE AND IT IS EVIDENT FROM ALL THE CONSIDERATIONS
PRESENTED TO CONGRESS, AND THOSE OF WHICH WE MAY TAKE JUDICIAL NOTICE,
THAT THE QUESTION IS AT LEAST DEBATABLE WHETHER COMMERCE IN FILLED MILK
SHOULD BE LEFT UNREGULATED, OR IN SOME MEASURE RESTRICTED, OR WHOLLY
PROHIBITED.  AS THAT DECISION WAS FOR CONGRESS, NEITHER THE FINDING OF
A COURT ARRIVED AT BY WEIGHING THE EVIDENCE, NOR THE VERDICT OF A JURY
CAN BE SUBSTITUTED FOR IT." 

SEE JAMISON V. TEXAS, 318 U.S. 413; SKIRIOTES V. FLORIDA, 313 U.S.
69, 79; HEBERT V. LOUISIANA, 272 U.S. 312, 316. 

FN30  CF. MARTIN V. STRUTHERS, 319 U.S. 141, 146; LOVELL V. CITY OF
GRIFFIN, 303 U.S. 444, 452. 

FN31  THOMAS V. COLLINS, 323 U.S. 516, 531. 

FN32  CF. KOVACS V. COOPER, 336 U.S. 77, 88, N. 14; CONCURRENCE AT
90.  SEE N. 24, SUPRA. 

FN33  CANTWELL V. CONNECTICUT, 310 U.S. 296, 303, 304; COX V. NEW
HAMPSHIRE, 312 U.S. 569; CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568;
MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 109-110; PRINCE V.
MASSACHUSETTS, 321 U.S. 158, 166; SAIA V. NEW YORK, 334 U.S. 558, 561;
FEINER V. NEW YORK, 340 U.S. 315.  SEE THE COLLECTION OF CASES IN
NIEMOTKO V. MARYLAND, 340 U.S. 268, AT P. 276 FF. 

FN34  THESE CASES CALLED FORTH NUMEROUS NOTES, E.G., 46 COL. L. REV.
457; 34 GEO. L.J. 244; 44 MICH. L. REV. 848. 

MR. CHIEF JUSTICE VINSON, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

THE ORDINANCE BEFORE US MAKES CRIMINAL THE HITHERTO LEGITIMATE
BUSINESS PRACTICE OF SOLICITING MAGAZINE SUBSCRIPTIONS FROM DOOR TO
DOOR WITHOUT PRIOR INVITATION OF THE HOMEOWNER.  LOOKING ONLY TO THE
FACE OF THAT ORDINANCE, THE COURT SUSTAINS IT AS AGAINST OBJECTIONS
UNDER THE DUE PROCESS CLAUSE, THE COMMERCE CLAUSE AND THE FIRST
AMENDMENT.  I DISSENT AND WOULD REVERSE THE JUDGMENT BELOW WITHOUT
REACHING ALL OF THE ISSUES RAISED, FOR, IN MY OPINION, THE ORDINANCE
CONSTITUTES AN UNDUE AND DISCRIMINATORY BURDEN ON INTERSTATE COMMERCE. 

THE COURT HOLDS THAT BECAUSE THE "ORDINANCE FALLS IN THE
CLASSIFICATION OF REGULATION," THE CITY COUNCIL IS FREE TO BURDEN
INTERSTATE COMMERCE.  ANTE, P. 638.  IN MY VIEW, THE ORDINANCE IS A
FLAT PROHIBITION OF SOLICITATION.  THE LOUISIANA SUPREME COURT
RECOGNIZED THIS FACT WHEN IT CHARACTERIZED THE ORDINANCE AS "PROVIDING)
FOR A BLANKET PROHIBITION OF SOLICITATION WITHOUT INVITATION, SAVE FOR
FOOD VENDORS, WHO ARE SPECIFICALLY EXEMPT."  217 LA. AT 828, 47 SO.2D
AT 556.  UNLIKE THIS COURT, THE STATE COURT ACKNOWLEDGED THE
PROHIBITORY CHARACTER OF THE ORDINANCE IN REJECTING APPELLANT'S CLAIM
UNDER THE COMMERCE CLAUSE IN THE FOLLOWING PORTION OF ITS OPINION: 

"THE ORDINANCE IMPOSES NO TAX, NO LICENSE.  IT IS A PROHIBITION OF AN
ACTIVITY ON LOCAL TERRITORY, INVOLVING THE PROBLEMATICAL SALE OF A
COMMODITY ORIGINATING IN ANOTHER STATE, WHICH IS ACTUALLY DISTRIBUTED
THROUGH THE UNITED STATES MAILS.  IT IMPOSES NO BURDEN ON THE
DISTRIBUTION ITSELF, NOR ON THE MANUFACTURE OF THE COMMODITY, NOR ON
ANY PHASE OF THE TRANSPORTATION FROM ONE PLACE TO ANOTHER OF THAT
COMMODITY."  217 LA. AT 829, 47 SO.2D AT 556. 

AT LEAST SINCE THE DECISION IN ROBBINS V. SHELBY COUNTY TAXING
DISTRICT, 120 U.S. 489, 497(1887), THIS COURT HAS REGARDED THE PROCESS
OF SOLICITING ORDERS FOR GOODS TO BE SHIPPED ACROSS STATE LINES AS
BEING INTERSTATE COMMERCE AS MUCH AS THE TRANSPORTATION ITSELF.  UNDER
THE LINE OF CASES FOLLOWING THIS PRINCIPLE, REEXAMINED AND REAFFIRMED
IN NIPPERT V. RICHMOND, 327 U.S. 416(1946), THE PROCESS OF SOLICITATION
FOR INTERSTATE COMMERCE CANNOT BE SUBJECTED TO TAXES, LICENSES OR
BONDING REQUIREMENTS THAT IN THEIR PRACTICAL OPERATION DISCRIMINATE
AGAINST OR UNDULY BURDEN INTERSTATE COMMERCE.  THE COURT DOES NOT TODAY
PURPORT TO OVERRULE THIS LINE OF DECISIONS.  AND IT ACKNOWLEDGES, AS IT
MUST, THAT THE COURT HAS SHARPLY DISTINGUISHED THE PROCESS OF
SOLICITATION OF INTERSTATE BUSINESS FROM THE ESSENTIALLY LOCAL
RETAILING OPERATIONS OF HAWKING AND PEDDLING.  SEE WAGNER V. COVINGTON,
251 U.S. 95, 103-104(1919), AND CASES CITED THEREIN.  NOR DOES THE
OPINION DISPUTE THAT THIS ORDINANCE HAS A SEVERE ECONOMIC IMPACT UPON
THE SUBSTANTIAL INTERSTATE BUSINESS OF APPELLANT'S EMPLOYER, AS WELL AS
THE ENTIRE MAGAZINE INDUSTRY WHICH DERIVES 50% TO 60% OF ITS ANNUAL
SUBSCRIPTION CIRCULATION FROM THE VERY TYPE OF SOLICITATION PROHIBITED
BY THIS ORDINANCE.  I DISAGREE WITH THE COURT IN ITS HOLDING THAT AN
ORDINANCE IMPOSING A "BLANKET PROHIBITION" CAN BE SUSTAINED UNDER THE
COMMERCE CLAUSE AS MERE REGULATION. 

CONGRESS IS GIVEN THE POWER "TO REGULATE COMMERCE  ...  AMONG THE
SEVERAL STATES."  U.S. CONST., ART. I, SEC. 8, CL. 3.  THE DOCTRINE OF
COOLEY V. BOARD OF WARDENS, 12 HOW.  299(1851), PERMITS A STATE TO
EXERCISE ITS POLICE POWERS IN A MANNER IMPINGING UPON INTERSTATE
COMMERCE ONLY WHERE THE SUBJECT OF REGULATION IS ESSENTIALLY LOCAL AND
THEN ONLY WHEN THERE IS NO DISCRIMINATION AGAINST OR UNDUE BURDEN ON
INTERSTATE COMMERCE.  THIS IS AN APPROACH GROUNDED IN THE PRACTICAL, AN
APPROACH WHICH IMPOSES UPON THIS COURT THE "DUTY TO DETERMINE WHETHER
THE STATUTE (OR ORDINANCE) UNDER ATTACK, WHATEVER ITS NAME MAY BE, WILL
IN ITS PRACTICAL OPERATION WORK DISCRIMINATION AGAINST INTERSTATE
COMMERCE."  BEST & CO. V. MAXWELL, 311 U.S. 454, 455-456(1940).  THAT
THIS ORDINANCE, ON ITS FACE, PROFESSES TO PROTECT THE HOME DOES NOT
RELIEVE US OF OUR DUTY TO WEIGH THE PRACTICAL EFFECT OF THE ORDINANCE
UPON INTERSTATE COMMERCE.  LACK OF DISCRIMINATION ON ITS FACE HAS NOT
HERETOFORE BEEN REGARDED AS SUFFICIENT TO SUSTAIN AN ORDINANCE WITHOUT
INQUIRY INTO ITS PRACTICAL EFFECTS UPON INTERSTATE COMMERCE.  E.G.,
DEAN MILK CO. V. MADISON, 340 U.S. 349, 354(1951)(PROHIBITION AGAINST
SALE OF MILK PASTEURIZED MORE THAN FIVE MILES FROM CITY); REAL SILK
HOSIERY MILLS V. PORTLAND, 268 U.S. 325, 336(1925)(REQUIREMENT THAT
SOLICITORS FILE BOND); MINNESOTA V. BARBER, 136 U.S. 313(1890)(STATUTE
REQUIRING INSPECTION OF MEAT WITHIN STATE). 

IN PASSING UPON OTHER ORDINANCES AFFECTING SOLICITORS, THIS COURT HAS
NOT HESITATED IN NOTING THE ECONOMIC FACT THAT "THE 'REAL COMPETITORS'
OF (SOLICITORS) ARE, AMONG OTHERS, THE LOCAL RETAIL MERCHANTS." 
NIPPERT V. RICHMOND, SUPRA, AT 433, CITING BEST & CO. V. MAXWELL,
SUPRA.  SEE ALSO ROBBINS V. SHELBY COUNTY TAXING DISTRICT, SUPRA, AT
498.  THE COURT ACKNOWLEDGES "EFFECTIVE COMPETITION" BETWEEN SOLICITORS
AND THE LOCAL RETAIL MERCHANTS, ANTE, P. 627, BUT IS DELIBERATE IN ITS
REFUSAL TO APPRAISE THE PRACTICAL EFFECT OF THIS ORDINANCE AS A
DETERRENT TO INTERSTATE COMMERCE, ANTE, P. 639.  I THINK IT PLAIN THAT
A "BLANKET PROHIBITION" UPON APPELLANT'S SOLICITATION DISCRIMINATES
AGAINST AND UNDULY BURDENS INTERSTATE COMMERCE IN FAVORING LOCAL RETAIL
MERCHANTS.  "WHETHER OR NOT IT WAS SO INTENDED, THOSE ARE ITS NECESSARY
EFFECTS."  NIPPERT V. RICHMOND, SUPRA, AT 434.  THE FACT THAT THIS
ORDINANCE EXEMPTS SOLICITATION BY THE ESSENTIALLY LOCAL PURVEYORS OF
FARM PRODUCTS SHOWS THAT LOCAL ECONOMIC INTERESTS ARE RELIEVED OF THE
BURDENSOME EFFECTS OF THE ORDINANCE.  NO ONE DOUBTS THAT PROTECTION OF
THE HOME IS A PROPER SUBJECT OF LEGISLATION, BUT THAT END CAN BE SERVED
WITHOUT PROHIBITING INTERSTATE COMMERCE.  OUR PRIOR DECISIONS CANNOT BE
AVOIDED BY LIMITING THEIR AUTHORITY TO THE LIMITED CATEGORIES OF TAX
AND LICENSE.  ON THE CONTRARY, WE MUST GUARD AGAINST STATE ACTION
WHICH, "IN ANY FORM OR UNDER ANY GUISE, DIRECTLY BURDENS) THE
PROSECUTION OF INTERSTATE BUSINESS."  BALDWIN V. SEELIG, 294 U.S. 511,
522(1935), CITING INTERNATIONAL TEXTBOOK CO. V. PIGG, 217 U.S. 91,
112(1910).  SEE ALSO HOOD & SONS V. DU MOND, 336 U.S. 525(1949).  I
CANNOT AGREE THAT THIS COURT SHOULD DEFER TO THE CITY COUNCIL OF
ALEXANDRIA AS THOUGH WE HAD BEFORE US AN ACT OF CONGRESS REGULATING
COMMERCE.  SEE ANTE, P. 640.  "(THIS) COURT, AND NOT THE STATE
LEGISLATURE (OR THE CITY COUNCIL), IS UNDER THE COMMERCE CLAUSE THE
FINAL ARBITER OF THE COMPETING DEMANDS OF STATE (OR LOCAL) AND NATIONAL
INTERESTS."  SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761, 769(1945). 

THE COURT RELIES UPON BUNGER V. GREEN RIVER, 300 U.S. 638(1937),
WHERE THE CONVICTION OF A FULLER BRUSH MAN WAS SUSTAINED UNDER AN
ORDINANCE AKIN TO THE ONE BEFORE US.  THE ORDER WAS ENTERED WITHOUT
ARGUMENT, WITHOUT OPINION AND WITH CITATION OF THE THREE CASES
DISCUSSED BY THE COURT, ANTE, AT P. 633, EACH OF WHICH CASES SUSTAINED
AS "INCIDENTAL" TO INTERSTATE COMMERCE STATE ACTION REGULATING LOCAL
INSPECTION AND FEEDING OF CATTLE, AND THE SALE OF PRODUCE* . 

*IT IS PASSING STRANGE THAT, AFTER RELYING ON THREE CASES GROUNDED
SOLELY ON "INCIDENTAL" AS A TEST OF VALIDITY UNDER THE COMMERCE CLAUSE,
THE COURT SHOULD ITSELF STATE THAT SUCH A TEST "HAS NOT CONTINUED AS A
USEFUL MANNER FOR DETERMINING THE VALIDITY OF LOCAL REGULATION OF
MATTERS AFFECTING INTERSTATE COMMERCE."  ANTE, P. 635, N. 19. 

I WOULD APPLY TO THIS CASE THE PRINCIPLES SO RECENTLY ANNOUNCED IN
DEAN MILK CO. V. MADISON, 340 U.S. 349(1951).  IN THE COURSE OF ITS
DISCUSSION OF OUR DEAN MILK DECISION, THE COURT REMARKS THAT IN THE
INSTANT CASE "INTERSTATE COMMERCE ITSELF KNOCKS ON THE LOCAL DOOR." 
ANTE, P. 636.  AS I READ THE PRIOR DECISIONS OF THIS COURT, THAT FACT,
FAR FROM JUSTIFYING AVOIDANCE OF DEAN MILK, BUTTRESSES MY CONCLUSION
THAT THE ORDINANCE CANNOT CONSISTENTLY WITH THE COMMERCE CLAUSE BE
APPLIED TO APPELLANT. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

ON MAY 3, 1943, THIS COURT HELD THAT CITIES AND STATES COULD NOT
ENFORCE LAWS WHICH IMPOSE FLAT TAXES ON THE PRIVILEGE OF DOOR-TO-DOOR
SALES OF RELIGIOUS LITERATURE, JONES V. OPELIKA, 319 U.S. 103; MURDOCK
V. PENNSYLVANIA, 319 U.S. 105, OR WHICH MAKE IT UNLAWFUL FOR PERSONS TO
GO FROM HOME TO HOME KNOCKING ON DOORS AND RINGING DOORBELLS TO INVITE
OCCUPANTS TO RELIGIOUS, POLITICAL OR OTHER KINDS OF PUBLIC MEETINGS. 
MARTIN V. STRUTHERS, 319 U.S. 141.  OVER STRONG DISSENTS, THESE LAWS
WERE HELD TO INVADE LIBERTY OF SPEECH, PRESS AND RELIGION IN VIOLATION
OF THE FIRST AND FOURTEENTH AMENDMENTS.  TODAY A NEW MAJORITY ADOPTS
THE POSITION OF THE FORMER DISSENTERS AND SUSTAINS A CITY ORDINANCE
FORBIDDING DOOR-TO-DOOR SOLICITATION OF SUBSCRIPTIONS TO THE SATURDAY
EVENING POST, NEWSWEEK AND OTHER MAGAZINES.  SINCE THIS DECISION CANNOT
BE RECONCILED WITH THE JONES, MURDOCK AND MARTIN V. STRUTHERS CASES, IT
SEEMS TO ME THAT GOOD JUDICIAL PRACTICE CALLS FOR THEIR FORTHRIGHT
OVERRULING.  BUT WHETHER THIS IS DONE OR NOT, IT SHOULD BE PLAIN THAT
MY DISAGREEMENT WITH THE MAJORITY OF THE COURT AS NOW CONSTITUTED STEMS
BASICALLY FROM A DIFFERENT CONCEPT OF THE REACH OF THE CONSTITUTIONAL
LIBERTY OF THE PRESS RATHER THAN FROM ANY DIFFERENCE OF OPINION AS TO
WHAT FORMER CASES HAVE HELD.    TODAY'S DECISION MARKS A REVITALIZATION
OF THE JUDICIAL VIEWS WHICH PREVAILED BEFORE THIS COURT EMBRACED THE
PHILOSOPHY THAT THE FIRST AMENDMENT GIVES A PREFERRED STATUS TO THE
LIBERTIES IT PROTECTS.  I ADHERE TO THAT PREFERRED POSITION
PHILOSOPHY.  IT IS MY BELIEF THAT THE FREEDOM OF THE PEOPLE OF THIS
NATION CANNOT SURVIVE EVEN A LITTLE GOVERNMENTAL HOBBLING OF RELIGIOUS
OR POLITICAL IDEAS, WHETHER THEY BE COMMUNICATED ORALLY OR THROUGH THE
PRESS. 

THE CONSTITUTIONAL SANCTUARY FOR THE PRESS MUST NECESSARILY INCLUDE
LIBERTY TO PUBLISH AND CIRCULATE.  IN VIEW OF OUR ECONOMIC SYSTEM, IT
MUST ALSO INCLUDE FREEDOM TO SOLICIT PAYING SUBSCRIBERS.  OF COURSE
HOMEOWNERS CAN IF THEY WISH FORBID NEWSBOYS, REPORTERS OR MAGAZINE
SOLICITORS TO RING THEIR DOORBELLS.  BUT WHEN THE HOMEOWNER HIMSELF HAS
NOT DONE THIS, I BELIEVE THAT THE FIRST AMENDMENT, INTERPRETED WITH DUE
REGARD FOR THE FREEDOMS IT GUARANTEES, BARS LAWS LIKE THE PRESENT
ORDINANCE WHICH PUNISH PERSONS WHO PEACEFULLY GO FROM DOOR TO DOOR AS
AGENTS OF THE PRESS* . 

*OF COURSE I BELIEVE THAT THE PRESENT ORDINANCE COULD
CONSTITUTIONALLY BE APPLIED TO A "MERCHANT" WHO GOES FROM DOOR TO DOOR
"SELLING POTS."  COMPARE MARTIN V. STRUTHERS, 319 U.S. 141, 144 WITH
VALENTINE V. CHRESTENSEN, 316 U.S. 52. 
..END :













COLLINS V. HARDYMAN, 341 U.S. 651 


NO. 217.  ARGUED JANUARY 8-9, 1951.  - DECIDED JUNE 4, 1951.  - 183 F.2D
308, REVERSED. 


A COMPLAINT IN AN ACTION TO RECOVER DAMAGES UNDER 8 U.S.C. SEC. 47(3)
ALLEGED THAT THE PLAINTIFFS WERE MEMBERS OF A POLITICAL CLUB WHICH
PLANNED A MEETING TO ADOPT A RESOLUTION OPPOSING THE MARSHALL PLAN;
THAT DEFENDANTS CONSPIRED TO DEPRIVE PLAINTIFFS OF THEIR RIGHTS AS
CITIZENS OF THE UNITED STATES PEACEABLY TO ASSEMBLE AND TO EQUAL
PRIVILEGES AND IMMUNITIES UNDER THE LAWS OF THE UNITED STATES; THAT, IN
FURTHERANCE OF THE CONSPIRACY, DEFENDANTS PROCEEDED TO PLAINTIFFS'
MEETING PLACE AND, BY THREATS AND VIOLENCE, BROKE UP THE MEETING, THUS
INTERFERING WITH THE RIGHT OF PLAINTIFFS TO PETITION THE GOVERNMENT FOR
REDRESS OF GRIEVANCES; AND THAT DEFENDANTS DID NOT INTERFERE OR
CONSPIRE TO INTERFERE WITH MEETINGS OF OTHER GROUPS WITH WHOSE OPINIONS
DEFENDANTS AGREED.  THERE WAS NO AVERMENT THAT DEFENDANTS WERE STATE
OFFICERS OR ACTED UNDER COLOR OF STATE LAW.  HELD:  THE COMPLAINT DID
NOT STATE A CAUSE OF ACTION UNDER 8 U.S.C. SEC. 47(3).  PP. 652-663. 

(A)  ASSUMING, WITHOUT DECIDING, THAT THE FACTS ALLEGED SHOW THAT
DEFENDANTS DEPRIVED PLAINTIFFS "OF HAVING AND EXERCISING" A FEDERAL
RIGHT, THE FACTS ALLEGED DID NOT SHOW THAT THE CONSPIRACY WAS "FOR THE
PURPOSE OF DEPRIVING (THEM) OF THE EQUAL PROTECTION OF THE LAWS, OR OF
EQUAL PRIVILEGES AND IMMUNITIES UNDER THE LAWS"; AND THEREFORE, IN THIS
CASE, A CAUSE OF ACTION UNDER 8 U.S.C. SEC. 47(3) WAS NOT STATED.  PP.
660-663. 

(B)  SECTION 47(3) DOES NOT ATTEMPT TO REACH A CONSPIRACY TO DEPRIVE
ONE OF RIGHTS, UNLESS IT IS A DEPRIVATION OF EQUALITY, OF "EQUAL
PROTECTION OF THE LAW" OR OF "EQUAL PRIVILEGES AND IMMUNITIES UNDER THE
LAW."  PP. 660-661. 

(C)  THE FACT THAT THE DEFENDANTS BROKE UP PLAINTIFFS' MEETING BUT
DID NOT INTERFERE WITH THE MEETINGS OF THOSE WHO SHARED DEFENDANTS'
VIEWS IS NOT INEQUALITY BEFORE THE LAW UNLESS THERE IS SOME
MANIPULATION OF THE LAW OR ITS AGENCIES TO GIVE SANCTION OR SANCTUARY
FOR DOING SO.  P. 661. 

(D)  ALTHOUGH PLAINTIFFS' RIGHTS WERE INVADED, DISREGARDED AND
LAWLESSLY VIOLATED, NEITHER THEIR RIGHTS NOR THEIR EQUALITY OF RIGHTS
UNDER THE LAW HAVE BEEN, OR WERE INTENDED TO BE, DENIED OR IMPAIRED. 
PP. 661-662. 

COLLINS ET AL. V. HARDYMAN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

IN AN ACTION BROUGHT BY RESPONDENTS AGAINST PETITIONERS TO RECOVER
DAMAGES UNDER 8 U.S.C. SEC. 47(3), THE DISTRICT COURT DISMISSED THE
COMPLAINT.  80 F.SUPP.  501.  THE COURT OF APPEALS REVERSED.  183 F.2D
308.  THIS COURT GRANTED CERTIORARI.  340 U.S. 809.  REVERSED, P. 663. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY ARISES UNDER 8 U.S.C. SEC. 47(3), WHICH PROVIDES
CIVIL REMEDIES FOR CERTAIN CONSPIRACIES.  FN1  A MOTION TO DISMISS THE
AMENDED COMPLAINT RAISES THE ISSUE OF ITS SUFFICIENCY AND, OF COURSE,
REQUIRES US TO ACCEPT ITS WELL-PLEADED FACTS AS THE HYPOTHESIS FOR
DECISION. 

ITS ESSENTIAL ALLEGATIONS ARE THAT PLAINTIFFS ARE CITIZENS OF THE
UNITED STATES, RESIDENTS OF CALIFORNIA, AND MEMBERS OR OFFICERS OF A
VOLUNTARY ASSOCIATION OR POLITICAL CLUB ORGANIZED FOR THE PURPOSE OF
PARTICIPATING IN THE ELECTION OF OFFICERS OF THE UNITED STATES,
PETITIONING THE NATIONAL GOVERNMENT FOR REDRESS OF GRIEVANCES, AND
ENGAGING IN PUBLIC MEETINGS FOR THE DISCUSSION OF NATIONAL PUBLIC
ISSUES.  IT PLANNED A PUBLIC MEETING FOR NOVEMBER 14, 1947, ON THE
SUBJECT, "THE COMINFORM AND THE MARSHALL PLAN," AT WHICH IT WAS
INTENDED TO ADOPT A RESOLUTION OPPOSING SAID MARSHALL PLAN, TO BE
FORWARDED, BY WAY OF A PETITION FOR THE REDRESS OF GRIEVANCES, TO
APPROPRIATE FEDERAL OFFICIALS. 

THE CONSPIRACY CHARGED AS BEING WITHIN THE ACT IS THAT DEFENDANTS,
WITH KNOWLEDGE OF THE MEETING AND ITS PURPOSES, ENTERED INTO AN
AGREEMENT TO DEPRIVE THE PLAINTIFFS, "AS CITIZENS OF THE UNITED STATES,
OF PRIVILEGES AND IMMUNITIES, AS CITIZENS OF THE UNITED STATES, OF THE
RIGHTS PEACEABLY TO ASSEMBLE FOR THE PURPOSE OF DISCUSSING AND
COMMUNICATING UPON NATIONAL PUBLIC ISSUES  ...  "  AND FURTHER, "TO
DEPRIVE THE PLAINTIFFS AS WELL AS THE MEMBERS OF SAID CLUB, AS CITIZENS
OF THE UNITED STATES, OF EQUAL PRIVILEGES AND IMMUNITIES UNDER THE LAWS
OF THE UNITED STATES  ...  "  THIS IS AMPLIFIED BY ALLEGATIONS THAT
DEFENDANTS KNEW OF MANY PUBLIC MEETINGS IN THE LOCALITY, AT WHICH
RESOLUTIONS WERE ADOPTED BY GROUPS WITH WHOSE OPINIONS DEFENDANTS
AGREED, AND WITH WHICH DEFENDANTS DID NOT INTERFERE OR CONSPIRE TO
INTERFERE.  "WITH RESPECT TO THE MEETING AFORESAID ON NOVEMBER 14,
1947, HOWEVER, THE DEFENDANTS CONSPIRED TO INTERFERE WITH SAID MEETING
FOR THE REASON THAT THE DEFENDANTS OPPOSED THE VIEWS OF THE PLAINTIFFS
...  " 

IN THE EFFORT TO BRING THE CASE WITHIN THE STATUTE, THE PLEADER ALSO
ALLEGED THAT DEFENDANTS CONSPIRED "TO GO IN DISGUISE UPON THE HIGHWAYS"
AND THAT THEY DID IN FACT GO IN DISGUISE "CONSISTING OF THE UNLAWFUL
AND UNAUTHORIZED WEARING OF CAPS OF THE AMERICAN LEGION."  THE DISTRICT
COURT DISPOSED OF THIS PART OF THE COMPLAINT BY HOLDING THAT WEARING
SUCH HEADGEAR DID NOT CONSTITUTE THE DISGUISE OR CONCEALMENT OF
IDENTITY CONTEMPLATED BY THE ACT.  PLAINTIFFS THEREUPON ABANDONED THAT
PART OF THE COMPLAINT AND DO NOT HERE RELY UPON IT TO SUPPORT THEIR
CLAIMS. 

THE COMPLAINT THEN SEPARATELY SETS OUT THE OVERT ACTS OF INJURY AND
DAMAGE RELIED UPON TO MEET THE REQUIREMENTS OF THE ACT.  TO CARRY OUT
THE CONSPIRACY, IT IS ALLEGED, DEFENDANTS PROCEEDED TO THE MEETING
PLACE AND, BY FORCE AND THREATS OF FORCE, DID ASSAULT AND INTIMIDATE
PLAINTIFFS AND THOSE PRESENT AT THE MEETING AND THEREBY BROKE UP THE
MEETING, THUS INTERFERING WITH THE RIGHT OF THE PLAINTIFFS TO PETITION
THE GOVERNMENT FOR REDRESS OF GRIEVANCES.  BOTH COMPENSATORY AND
PUNITIVE DAMAGES ARE DEMANDED. 

IT IS AVERRED THAT THE CAUSE OF ACTION ARISES UNDER THE STATUTE CITED
AND UNDER THE CONSTITUTION OF THE UNITED STATES.  BUT APPARENTLY THE
DRAFTSMAN WAS SCRUPULOUSLY CAUTIOUS NOT TO ALLEGE THAT IT AROSE UNDER
THE FOURTEENTH AMENDMENT, OR THAT DEFENDANTS HAD CONSPIRED TO DEPRIVE
PLAINTIFFS OF RIGHTS SECURED BY THAT AMENDMENT, THUS SEEKING TO AVOID
THE EFFECT OF EARLIER DECISIONS OF THIS COURT IN FOURTEENTH AMENDMENT
CASES. 

THE COMPLAINT MAKES NO CLAIM THAT THE CONSPIRACY OR THE OVERT ACTS
INVOLVED ANY ACTION BY STATE OFFICIALS, OR THAT DEFENDANTS EVEN
PRETENDED TO ACT UNDER COLOR OF STATE LAW.  IT IS NOT SHOWN THAT
DEFENDANTS HAD OR CLAIMED ANY PROTECTION OR IMMUNITY FROM THE LAW OF
THE STATE, OR THAT THEY IN FACT ENJOYED SUCH BECAUSE OF ANY ACT OR
OMISSION BY STATE AUTHORITIES.  INDEED, THE TRIAL COURT FOUND THAT THE
ACTS ALLEGED ARE PUNISHABLE UNDER THE LAWS OF CALIFORNIA RELATING TO
DISTURBANCE OF THE PEACE, ASSAULT, AND TRESPASS, AND ARE ALSO CIVILLY
ACTIONABLE.  FN2 

THE DISTRICT JUDGE HELD THAT THE STATUTE DOES NOT AND CANNOT
CONSTITUTIONALLY AFFORD REDRESS FOR INVASIONS OF CIVIL RIGHTS AT THE
HANDS OF INDIVIDUALS, BUT CAN ONLY BE APPLIED TO INJURIES TO CIVIL
RIGHTS BY PERSONS ACTING PURSUANT TO OR UNDER COLOR OF STATE LAW.  FN3
IN REVERSING THE DISTRICT COURT'S DISMISSAL OF THE COMPLAINT, THE COURT
OF APPEALS FOR THE NINTH CIRCUIT HELD OTHERWISE, ONE JUDGE DISSENTING. 
FN4  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT, IN LOVE V. CHANDLER,
124 F.2D 785, HAS RULED IN ACCORD WITH THE DISTRICT JUDGE AND THE
DISSENTING COURT OF APPEALS JUDGE HERE.  FN5  TO RESOLVE THE CONFLICT,
WE GRANTED CERTIORARI.  FN6 

THIS STATUTORY PROVISION HAS LONG BEEN DORMANT.  IT WAS INTRODUCED
INTO THE FEDERAL STATUTES BY THE ACT OF APRIL 20, 1871, ENTITLED, "AN
ACT TO ENFORCE THE PROVISIONS OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES, AND FOR OTHER PURPOSES."  FN7  THE
ACT WAS AMONG THE LAST OF THE RECONSTRUCTION LEGISLATION TO BE BASED ON
THE "CONQUERED PROVINCE" THEORY WHICH PREVAILED IN CONGRESS FOR A
PERIOD FOLLOWING THE CIVIL WAR.  THIS STATUTE, WITHOUT SEPARABILITY
PROVISIONS, ESTABLISHED THE CIVIL LIABILITY WITH WHICH WE ARE HERE
CONCERNED AS WELL AS OTHER CIVIL LIABILITIES, TOGETHER WITH PARALLEL
CRIMINAL LIABILITIES.  IT ALSO PROVIDED THAT UNLAWFUL COMBINATIONS AND
CONSPIRACIES NAMED IN THE ACT MIGHT BE DEEMED REBELLIONS, AND
AUTHORIZED THE PRESIDENT TO EMPLOY THE MILITIA TO SUPPRESS THEM.  THE
PRESIDENT WAS ALSO AUTHORIZED TO SUSPEND THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS.  IT PROHIBITED ANY PERSON FROM BEING A FEDERAL GRAND OR
PETIT JUROR IN ANY CASE ARISING UNDER THE ACT UNLESS HE TOOK AND
SUBSCRIBED AN OATH IN OPEN COURT "THAT HE HAS NEVER, DIRECTLY OR
INDIRECTLY, COUNSELLED, ADVISED, OR VOLUNTARILY AIDED ANY SUCH
COMBINATION OR CONSPIRACY."  HEAVY PENALTIES AND LIABILITIES WERE LAID
UPON ANY PERSON WHO, WITH KNOWLEDGE OF SUCH CONSPIRACIES, AIDED THEM OR
FAILED TO DO WHAT HE COULD TO SUPPRESS THEM. 

THE ACT, POPULARLY KNOWN AS THE KU KLUX ACT, WAS PASSED BY A PARTISAN
VOTE IN A HIGHLY INFLAMED ATMOSPHERE.  IT WAS PRECEDED BY SPIRITED
DEBATE WHICH POINTED OUT ITS GRAVE CHARACTER AND SUSCEPTIBILITY TO
ABUSE, AND ITS DEFECTS WERE SOON REALIZED WHEN ITS EXECUTION BROUGHT
ABOUT A SEVERE REACTION.  FN8 

THE PROVISION ESTABLISHING CRIMINAL CONSPIRACIES IN LANGUAGE
INDISTINGUISHABLE FROM THAT USED TO DESCRIBE CIVIL CONSPIRACIES CAME TO
JUDGMENT IN UNITED STATES V. HARRIS, 106 U.S. 629.  FN9  IT WAS HELD
UNCONSTITUTIONAL.  THIS DECISION WAS IN HARMONY WITH THAT OF OTHER
IMPORTANT DECISIONS DURING THAT PERIOD  FN10  BY A COURT, EVERY MEMBER
OF WHICH HAD BEEN APPOINTED BY PRESIDENT LINCOLN, GRANT, HAYES,
GARFIELD OR ARTHUR - ALL INDOCTRINATED IN THE CAUSE WHICH PRODUCED THE
FOURTEENTH AMENDMENT, BUT CONVINCED THAT IT WAS NOT TO BE USED TO
CENTRALIZE POWER SO AS TO UPSET THE FEDERAL SYSTEM. 

WHILE WE HAVE NOT BEEN IN AGREEMENT AS TO THE INTERPRETATION AND
APPLICATION OF SOME OF THE POST-CIVIL WAR LEGISLATION,  FN11  THE COURT
RECENTLY UNANIMOUSLY DECLARED, THROUGH THE CHIEF JUSTICE: 

"SINCE THE DECISION OF THIS COURT IN THE CIVIL RIGHTS CASES, 109 U.S.
3(1883), 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."  FN12 

AND MR. JUSTICE DOUGLAS, DISSENTING, HAS QUOTED WITH APPROVAL FROM
THE CRUIKSHANK CASE, "'THE FOURTEENTH AMENDMENT PROHIBITS A STATE FROM
DENYING TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF
THE LAWS; BUT THIS PROVISION DOES NOT, ANY MORE THAN THE ONE WHICH
PRECEDES IT ...  ADD ANYTHING TO THE RIGHTS WHICH ONE CITIZEN HAS UNDER
THE CONSTITUTION AGAINST ANOTHER.'  92 U.S. AT PP. 554-555."  AND "'THE
ONLY OBLIGATION RESTING UPON THE UNITED STATES IS TO SEE THAT THE
STATES DO NOT DENY THE RIGHT.  THIS THE AMENDMENT GUARANTEES, BUT NO
MORE.  THE POWER OF THE NATIONAL GOVERNMENT IS LIMITED TO THE
ENFORCEMENT OF THIS GUARANTY.'"  HE SUMMED UP:  "THE FOURTEENTH
AMENDMENT PROTECTS THE INDIVIDUAL AGAINST STATE ACTION, NOT AGAINST
WRONGS DONE BY INDIVIDUALS.  ...  "  FN13 

IT IS APPARENT THAT, IF THIS COMPLAINT MEETS THE REQUIREMENTS OF THIS
ACT, IT RAISES CONSTITUTIONAL PROBLEMS OF THE FIRST MAGNITUDE THAT, IN
THE LIGHT OF HISTORY, ARE NOT WITHOUT DIFFICULTY.  THESE WOULD INCLUDE
ISSUES AS TO CONGRESSIONAL POWER UNDER AND APART FROM THE FOURTEENTH
AMENDMENT, THE RESERVED POWER OF THE STATES, THE CONTENT OF RIGHTS
DERIVED FROM NATIONAL AS DISTINGUISHED FROM STATE CITIZENSHIP, AND THE
QUESTION OF SEPARABILITY OF THE ACT IN ITS APPLICATION TO THOSE TWO
CLASSES OF RIGHTS.  THE LATTER QUESTION WAS LONG AGO DECIDED ADVERSELY
TO THE PLAINTIFFS.  BALDWIN V. FRANKS, 120 U.S. 678.  BEFORE WE EMBARK
UPON SUCH A CONSTITUTIONAL INQUIRY, IT IS NECESSARY TO SATISFY
OURSELVES THAT THE ATTEMPT TO ALLEGE A CAUSE OF ACTION WITHIN THE
PURVIEW OF THE STATUTE HAS BEEN SUCCESSFUL. 

THE SECTION UNDER WHICH THIS ACTION IS BROUGHT FALLS INTO TWO
DIVISIONS.  THE FOREPART DEFINES CONSPIRACIES THAT MAY BECOME THE BASIS
OF LIABILITY, AND THE LATTER PORTION DEFINES OVERT ACTS NECESSARY TO
CONSUMMATE THE CONSPIRACY AS AN ACTIONABLE WRONG.  WHILE A MERE
UNLAWFUL AGREEMENT OR CONSPIRACY MAY BE MADE A FEDERAL CRIME, AS IT WAS
AT COMMON LAW,  FN14  THIS STATUTE DOES NOT MAKE THE MERE AGREEMENT OR
UNDERSTANDING FOR CONCERTED ACTION WHICH CONSTITUTES THE FORBIDDEN
CONSPIRACY AN ACTIONABLE WRONG UNLESS IT MATURES INTO SOME ACTION THAT
INFLICTS INJURY.  THAT, WE THINK, IS THE SIGNIFICANCE OF THE SECOND
DIVISION OF THE SECTION. 

THE PROVISION WITH REFERENCE TO THE OVERT ACT WILL BEAR REPEATING,
WITH EMPHASIS SUPPLIED:  " ...  (IN) ANY CASE OF CONSPIRACY SET FORTH
IN THIS SECTION, IF ONE OR MORE PERSONS ENGAGED THEREIN DO, OR CAUSE TO
BE DONE, ANY ACT IN FURTHERANCE OF THE OBJECT OF SUCH CONSPIRACY,
WHEREBY ANOTHER IS INJURED IN HIS PERSON OR PROPERTY, OR DEPRIVED OF
HAVING AND EXERCISING ANY RIGHT OR PRIVILEGE OF A CITIZEN OF THE UNITED
STATES, THE PARTY SO INJURED OR DEPRIVED MAY HAVE AN ACTION FOR THE
RECOVERY OF DAMAGES  ...  " 

IN THE LIGHT OF THE DICTUM IN UNITED STATES V. CRUIKSHANK, 92 U.S.
542, 552, WE ASSUME, WITHOUT DECIDING, THAT THE FACTS PLEADED SHOW THAT
DEFENDANTS DID DEPRIVE PLAINTIFFS "OF HAVING AND EXERCISING" A FEDERAL
RIGHT WHICH, PROVIDED THE DEFENDANTS WERE ENGAGED IN A "CONSPIRACY SET
FORTH IN THIS SECTION," WOULD BRING THE CASE WITHIN THE ACT. 

THE "CONSPIRACY" REQUIRED IS DIFFERENTLY STATED FROM THE REQUIRED
OVERT ACT AND WE THINK THE DIFFERENCE IS NOT ACCIDENTAL BUT
SIGNIFICANT.  ITS ESSENTIALS, WITH EMPHASIS SUPPLIED, ARE THAT TWO OR
MORE PERSONS MUST CONSPIRE (1) FOR THE PURPOSE OF DEPRIVING ANY PERSON
OR CLASS OF PERSONS OF THE EQUAL PROTECTION OF THE LAWS, OR OF EQUAL
PRIVILEGES AND IMMUNITIES UNDER THE LAW; OR (2) FOR THE PURPOSE OF
PREVENTING OR HINDERING THE CONSTITUTED AUTHORITIES FROM GIVING OR
SECURING TO ALL PERSONS THE EQUAL PROTECTION OF THE LAWS; OR (3) TO
PREVENT BY FORCE, INTIMIDATION, OR THREAT, ANY CITIZEN ENTITLED TO VOTE
FROM GIVING HIS SUPPORT OR ADVOCACY IN A LEGAL MANNER TOWARD ELECTION
OF AN ELECTOR FOR PRESIDENT OR A MEMBER OF CONGRESS; OR (4) TO INJURE
ANY CITIZEN IN PERSON OR PROPERTY ON ACCOUNT OF SUCH SUPPORT OR
ADVOCACY.  THERE IS NO CLAIM THAT ANY ALLEGATION BRINGS THIS CASE
WITHIN THE PROVISIONS THAT WE HAVE NUMBERED (2), (3), AND (4), SO WE
MAY ELIMINATE ANY CONSIDERATION OF THOSE CATEGORIES.  THE COMPLAINT IS
WITHIN THE STATUTE ONLY IF IT ALLEGES A CONSPIRACY OF THE FIRST
DESCRIBED CLASS.  IT IS APPARENT THAT THIS PART OF THE ACT DEFINES
CONSPIRACIES OF A VERY LIMITED CHARACTER.  THEY MUST, WE REPEAT, BE
"FOR THE PURPOSE OF DEPRIVING ...  OF THE EQUAL PROTECTION OF THE LAWS,
OR OF EQUAL PRIVILEGES AND IMMUNITIES UNDER THE LAWS." 

PASSING THE ARGUMENT, FULLY DEVELOPED IN THE CIVIL RIGHTS CASES, THAT
AN INDIVIDUAL OR GROUP OF INDIVIDUALS NOT IN OFFICE CANNOT DEPRIVE
ANYBODY OF CONSTITUTIONAL RIGHTS, THOUGH THEY MAY INVADE OR VIOLATE
THOSE RIGHTS, IT IS CLEAR THAT THIS STATUTE DOES NOT ATTEMPT TO REACH A
CONSPIRACY TO DEPRIVE ONE OF RIGHTS, UNLESS IT IS A DEPRIVATION OF
EQUALITY, OF "EQUAL PROTECTION OF THE LAW," OR OF "EQUAL PRIVILEGES AND
IMMUNITIES UNDER THE LAW."  THAT ACCORDS WITH THE PURPOSE OF THE ACT TO
PUT THE LATELY FREED NEGRO ON AN EQUAL FOOTING BEFORE THE LAW WITH HIS
FORMER MASTER.  THE ACT APPARENTLY DEEMED THAT ADEQUATE AND WENT NO
FURTHER.    WHAT WE HAVE HERE IS NOT A CONSPIRACY TO AFFECT IN ANY WAY
THESE PLAINTIFFS' EQUALITY OF PROTECTION BY THE LAW, OR THEIR EQUALITY
OF PRIVILEGES AND IMMUNITIES UNDER THE LAW.  THERE IS NOT THE SLIGHTEST
ALLEGATION THAT DEFENDANTS WERE CONSCIOUS OF OR TRYING TO INFLUENCE THE
LAW, OR WERE ENDEAVORING TO OBSTRUCT OR INTERFERE WITH IT.  THE ONLY
INEQUALITY SUGGESTED IS THAT THE DEFENDANTS BROKE UP PLAINTIFFS'
MEETING AND DID NOT BREAK UP MEETINGS OF OTHERS WITH WHOSE SENTIMENTS
THEY AGREED.  TO BE SURE, THIS IS NOT EQUAL INJURY, BUT IT IS NO MORE A
DEPRIVATION OF "EQUAL PROTECTION" OR OF "EQUAL PRIVILEGES AND
IMMUNITIES" THAN IT WOULD BE FOR ONE TO ASSAULT ONE NEIGHBOR WITHOUT
ASSAULTING THEM ALL, OR TO LIBEL SOME PERSONS WITHOUT MENTION OF
OTHERS.  SUCH PRIVATE DISCRIMINATION IS NOT INEQUALITY BEFORE THE LAW
UNLESS THERE IS SOME MANIPULATION OF THE LAW OR ITS AGENCIES TO GIVE
SANCTION OR SANCTUARY FOR DOING SO.  PLAINTIFFS' RIGHTS WERE CERTAINLY
INVADED, DISREGARDED AND LAWLESSLY VIOLATED, BUT NEITHER THEIR RIGHTS
NOR THEIR EQUALITY OF RIGHTS UNDER THE LAW HAVE BEEN, OR WERE INTENDED
TO BE, DENIED OR IMPAIRED.  THEIR RIGHTS UNDER THE LAWS AND TO
PROTECTION OF THE LAWS REMAIN UNTOUCHED AND EQUAL TO THE RIGHTS OF
EVERY OTHER CALIFORNIAN, AND MAY BE VINDICATED IN THE SAME WAY AND WITH
THE SAME EFFECT AS THOSE OF ANY OTHER CITIZEN WHO SUFFERS VIOLENCE AT
THE HANDS OF A MOB. 

WE DO NOT SAY THAT NO CONSPIRACY BY PRIVATE INDIVIDUALS COULD BE OF
SUCH MAGNITUDE AND EFFECT AS TO WORK A DEPRIVATION OF EQUAL PROTECTION
OF THE LAWS, OR OF EQUAL PRIVILEGES AND IMMUNITIES UNDER LAWS.  INDEED,
THE POST-CIVIL WAR KU KLUX KLAN, AGAINST WHICH THIS ACT WAS FASHIONED,
MAY HAVE, OR MAY REASONABLY HAVE BEEN THOUGHT TO HAVE, DONE SO.  IT IS
ESTIMATED TO HAVE HAD A MEMBERSHIP OF AROUND 550,000, AND THUS TO HAVE
INCLUDED "NEARLY THE ENTIRE ADULT MALE WHITE POPULATION OF THE SOUTH." 
FN15  IT MAY WELL BE THAT A CONSPIRACY, SO FAR-FLUNG AND EMBRACING SUCH
NUMBERS, WITH A PURPOSE TO DOMINATE AND SET AT NAUGHT THE "CARPETBAG"
AND "SCALAWAG" GOVERNMENTS OF THE DAY, WAS ABLE EFFECTIVELY TO DEPRIVE
NEGROES OF THEIR LEGAL RIGHTS AND TO CLOSE ALL AVENUES OF REDRESS OR
VINDICATION, IN VIEW OF THE THEN DISPARITY OF POSITION, EDUCATION AND
OPPORTUNITY BETWEEN THEM AND THOSE WHO MADE UP THE KU KLUX KLAN.  WE DO
NOT KNOW.  BUT HERE NOTHING OF THAT SORT APPEARS.  WE HAVE A CASE OF A
LAWLESS POLITICAL BRAWL, PRECIPITATED BY A HANDFUL OF WHITE CITIZENS
AGAINST OTHER WHITE CITIZENS.  CALIFORNIA COURTS ARE OPEN TO PLAINTIFFS
AND ITS LAWS OFFER REDRESS FOR THEIR INJURY AND VINDICATION FOR THEIR
RIGHTS. 

WE SAY NOTHING OF THE POWER OF CONGRESS TO AUTHORIZE SUCH CIVIL
ACTIONS AS RESPONDENTS HAVE COMMENCED OR OTHERWISE TO REDRESS SUCH
GRIEVANCES AS THEY ASSERT.  WE THINK THAT CONGRESS HAS NOT, IN THE
NARROW CLASS OF CONSPIRACIES DEFINED BY THIS STATUTE, INCLUDED THE
CONSPIRACY CHARGED HERE.  WE THEREFORE REACH NO CONSTITUTIONAL
QUESTIONS.  THE FACTS ALLEGED FALL SHORT OF A CONSPIRACY TO ALTER,
IMPAIR OR DENY EQUALITY OF RIGHTS UNDER THE LAW, THOUGH THEY DO SHOW A
LAWLESS INVASION OF RIGHTS FOR WHICH THERE ARE REMEDIES IN THE LAW OF
CALIFORNIA.  IT IS NOT FOR THIS COURT TO COMPETE WITH CONGRESS OR
ATTEMPT TO REPLACE IT AS THE NATION'S LAW-MAKING BODY. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  17 STAT. 13, 8 U.S.C. SEC. 47(3) READS: 

"IF TWO OR MORE PERSONS IN ANY STATE OR TERRITORY CONSPIRE OR GO IN
DISGUISE ON THE HIGHWAY OR ON THE PREMISES OF ANOTHER, FOR THE PURPOSE
OF DEPRIVING, EITHER DIRECTLY OR INDIRECTLY, ANY PERSON OR CLASS OF
PERSONS OF THE EQUAL PROTECTION OF THE LAWS, OR OF EQUAL PRIVILEGES AND
IMMUNITIES UNDER THE LAWS; OR FOR THE PURPOSE OF PREVENTING OR
HINDERING THE CONSTITUTED AUTHORITIES OF ANY STATE OR TERRITORY FROM
GIVING OR SECURING TO ALL PERSONS WITHIN SUCH STATE OR TERRITORY THE
EQUAL PROTECTION OF THE LAWS; OR IF TWO OR MORE PERSONS CONSPIRE TO
PREVENT BY FORCE, INTIMIDATION, OR THREAT, ANY CITIZEN WHO IS LAWFULLY
ENTITLED TO VOTE, FROM GIVING HIS SUPPORT OR ADVOCACY IN A LEGAL
MANNER, TOWARD OR IN FAVOR OF THE ELECTION OF ANY LAWFULLY QUALIFIED
PERSON AS AN ELECTOR FOR PRESIDENT OR VICE PRESIDENT, OR AS A MEMBER OF
CONGRESS OF THE UNITED STATES; OR TO INJURE ANY CITIZEN IN PERSON OR
PROPERTY ON ACCOUNT OF SUCH SUPPORT OR ADVOCACY; IN ANY CASE OF
CONSPIRACY SET FORTH IN THIS SECTION, IF ONE OR MORE PERSONS ENGAGED
THEREIN DO, OR CAUSE TO BE DONE, ANY ACT IN FURTHERANCE OF THE OBJECT
OF SUCH CONSPIRACY, WHEREBY ANOTHER IS INJURED IN HIS PERSON OR
PROPERTY, OR DEPRIVED OF HAVING AND EXERCISING ANY RIGHT OR PRIVILEGE
OF A CITIZEN OF THE UNITED STATES, THE PARTY SO INJURED OR DEPRIVED MAY
HAVE AN ACTION FOR THE RECOVERY OF DAMAGES, OCCASIONED BY SUCH INJURY
OR DEPRIVATION, AGAINST ANY ONE OR MORE OF THE CONSPIRATORS." 

THIS PARAGRAPH SHOULD BE READ IN THE CONTEXT OF OTHER PARAGRAPHS OF
THE SAME SECTION, AND NOTE SHOULD ALSO BE TAKEN OF 8 U.S.C. SEC. 43,
WHICH READS: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICTION THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS." 

FN2  THE OPINION OF DISTRICT JUDGE YANKWICH FOR THIS CITES IN HIS
NOTES, 80 F.SUPP.  501, 510: 

"39.  CAL. PENAL CODE, SECTION 415(DISTURBANCE OF THE PEACE OF
NEIGHBORHOOD OR PERSON); SECTION 403(DISTURBANCE OF PUBLIC MEETINGS) 

"40.  CAL. PENAL CODE, SECTION 602(J)(ILLEGAL ENTRY FOR THE PURPOSE
OF INJURING PROPERTY OR PROPERTY RIGHTS OR INTERFERING OR OBSTRUCTING
LAWFUL BUSINESS OF ANOTHER). 

"41.  CAL. PENAL CODE, SECTIONS 240, 241(ASSAULT); SECTIONS 242,
243(BATTERY).  AMONG THE CORRESPONDING CIVIL SECTIONS RELATING TO CIVIL
REMEDIES ARE CALIFORNIA CIVIL CODE, SECTION 43(GUARANTEE AGAINST
PERSONAL BODILY HARM OR RESTRAINT); GOVERNMENT CODE, SECTION
241(DEFINING AS CITIZENS ALL PERSONS BORN OR RESIDING WITHIN THE
STATE); CALIFORNIA CODE OF CIVIL PROCEDURE, SECTION 338(3)(SECTION
338(2))(ACTION FOR TRESPASS TO REAL PROPERTY MAY BE BROUGHT WITHIN
THREE YEARS); SECTION 340(3)(ACTION FOR ASSAULT AND BATTERY MAY BE
BROUGHT WITHIN ONE YEAR).  AND FOR THE STATE CIVIL RIGHTS PROVISIONS,
SEE CALIFORNIA CIVIL CODE, SECTIONS 51-54." 

FN3  80 F.SUPP.  501. 

FN4  183 F.2D 308. 

FN5  OTHER RECENT CASES INVOLVING THE STATUTE ARE VILES V. SYMES, 129
F.2D 828; ROBESON V. FANELLI, 94 F.SUPP.  62; AND FERRER V. FRONTON
EXHIBITION CO., 188 F.2D 954. 

FN6  340 U.S. 809. 

FN7  17 STAT. 13. 

FN8  THE BACKGROUND OF THIS ACT, THE NATURE OF THE DEBATES WHICH
PRECEDED ITS PASSAGE, AND THE REACTION IT PRODUCED ARE SET FORTH IN
BOWERS, THE TRAGIC ERA, 340-348. 

FN9  R.S. SEC. 5519, UNDER WHICH THE PROSECUTION WAS BROUGHT,
PROVIDED: 

"IF TWO OR MORE PERSONS IN ANY STATE OR TERRITORY CONSPIRE, OR GO IN
DISGUISE ON THE HIGHWAY OR ON THE PREMISES OF ANOTHER, FOR THE PURPOSE
OF DEPRIVING, EITHER DIRECTLY OR INDIRECTLY, ANY PERSON OR CLASS OF
PERSONS OF THE EQUAL PROTECTION OF THE LAWS, OR OF EQUAL PRIVILEGES AND
IMMUNITIES UNDER THE LAWS; OR FOR THE PURPOSE OF PREVENTING OR
HINDERING THE CONSTITUTED AUTHORITIES OF ANY STATE OR TERRITORY FROM
GIVING OR SECURING TO ALL PERSONS WITHIN SUCH STATE OR TERRITORY THE
EQUAL PROTECTION OF THE LAWS; EACH OF SUCH PERSONS SHALL BE PUNISHED BY
A FINE OF NOT LESS THAN FIVE HUNDRED NOR MORE THAN FIVE THOUSAND
DOLLARS, OR BY IMPRISONMENT, WITH OR WITHOUT HARD LABOR, NOT LESS THAN
SIX MONTHS NOR MORE THAN SIX YEARS, OR BY BOTH SUCH FINE AND
IMPRISONMENT." 

FN10  SLAUGHTER-HOUSE CASES, 16 WALL.  36; UNITED STATES V. REESE, 92
U.S. 214; UNITED STATES V. CRUIKSHANK, 92 U.S. 542; CIVIL RIGHTS CASES,
109 U.S. 3. 

FN11  SCREWS V. UNITED STATES, 325 U.S. 91. 

FN12  SHELLEY V. KRAEMER, 334 U.S. 1, 13. 

FN13  UNITED STATES V. WILLIAMS, 341 U.S. 70, 92. 

FN14  NASH V. UNITED STATES, 229 U.S. 373, 378; UNITED STATES V.
SOCONY-VACUUM OIL CO., 310 U.S. 150, 252. 

FN15  8 ENCYC.  SOC.  SCI. 606, 607. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

I CANNOT AGREE THAT THE RESPONDENTS IN THEIR COMPLAINT HAVE FAILED TO
STATE A CAUSE OF ACTION UNDER R.S. SEC. 1980(3), 8 U.S.C. SEC. 47(3). 

THE RIGHT ALLEGED TO HAVE BEEN VIOLATED IS THE RIGHT TO PETITION THE
FEDERAL GOVERNMENT FOR A REDRESS OF GRIEVANCES.  THIS RIGHT IS
EXPRESSLY RECOGNIZED BY THE FIRST AMENDMENT AND THIS COURT HAS SAID
THAT "THE VERY IDEA OF A GOVERNMENT, REPUBLICAN IN FORM, IMPLIES A
RIGHT ON THE PART OF ITS CITIZENS TO MEET PEACEABLY FOR CONSULTATION IN
RESPECT TO PUBLIC AFFAIRS AND TO PETITION FOR A REDRESS OF
GRIEVANCES."  UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 552, AND SEE IN
RE QUARLES AND BUTLER, 158 U.S. 532, 535.  THE SOURCE OF THE RIGHT IN
THIS CASE IS NOT THE FOURTEENTH AMENDMENT.  THE COMPLAINT ALLEGES THAT
PETITIONERS "KNOWINGLY" DID NOT INTERFERE WITH THE "MANY PUBLIC
MEETINGS" WHOSE OBJECTIVES THEY AGREED WITH, BUT THAT THEY DID CONSPIRE
TO BREAK UP RESPONDENTS' MEETING BECAUSE PETITIONERS WERE OPPOSED TO
RESPONDENTS' VIEWS, WHICH WERE EXPECTED TO BE THERE EXPRESSED.  SUCH
CONDUCT DOES NOT DIFFER MATERIALLY FROM THE SPECIFIC CONSPIRACIES WHICH
THE COURT RECOGNIZES THAT THE STATUTE WAS INTENDED TO REACH. 

THE LANGUAGE OF THE STATUTE REFUTES THE SUGGESTION THAT ACTION UNDER
COLOR OF STATE LAW IS A NECESSARY INGREDIENT OF THE CAUSE OF ACTION
WHICH IT RECOGNIZES.  R.S. SEC. 1980(3) SPEAKS OF "TWO OR MORE PERSONS
IN ANY STATE OR TERRITORY" CONSPIRING.  THAT CLAUSE IS NOT LIMITED TO
STATE OFFICIALS.  STILL MORE OBVIOUSLY, WHERE THE SECTION SPEAKS OF
PERSONS GOING "IN DISGUISE ON THE HIGHWAY  ...  FOR THE PURPOSE OF
DEPRIVING  ...  ANY PERSON OR CLASS OF PERSONS OF THE EQUAL PROTECTION
OF THE LAWS," IT CERTAINLY DOES NOT LIMIT ITS REFERENCE TO ACTIONS OF
THAT KIND BY STATE OFFICIALS.  WHEN CONGRESS, AT THIS PERIOD, DID
INTEND TO LIMIT COMPARABLE CIVIL RIGHTS LEGISLATION TO ACTION UNDER
COLOR OF STATE LAW, IT SAID SO IN UNMISTAKABLE TERMS.  IN FACT, R.S.
SEC. 1980(3) ORIGINALLY WAS SEC. 2 OF THE ACT OF APRIL 20, 1871, AND
SEC. 1 OF THAT SAME ACT SAID "THAT ANY PERSON WHO, UNDER COLOR OF ANY
LAW, STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE OF ANY STATE,
SHALL SUBJECT  ...  ANY PERSON WITHIN THE JURISDICTION OF THE UNITED
STATES TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES
SECURED BY THE CONSTITUTION OF THE UNITED STATES, SHALL  ...  BE LIABLE
TO THE PARTY INJURED  ...."  17 STAT. 13. 

CONGRESS CERTAINLY HAS THE POWER TO CREATE A FEDERAL CAUSE OF ACTION
IN FAVOR OF PERSONS INJURED BY PRIVATE INDIVIDUALS THROUGH THE
ABRIDGMENT OF FEDERALLY CREATED CONSTITUTIONAL RIGHTS.  IT SEEMS TO ME
THAT CONGRESS HAS DONE JUST THIS IN R.S. SEC. 1980(3).  THIS IS NOT
INCONSISTENT WITH THE PRINCIPLE UNDERLYING THE FOURTEENTH AMENDMENT. 
THAT AMENDMENT PROHIBITS THE RESPECTIVE STATES FROM MAKING LAWS
ABRIDGING THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES
OR DENYING TO ANY PERSON WITHIN THE JURISDICTION OF A STATE THE EQUAL
PROTECTION OF THE LAWS.  CASES HOLDING THAT THOSE CLAUSES ARE DIRECTED
ONLY AT STATE ACTION ARE NOT AUTHORITY FOR THE CONTENTION THAT CONGRESS
MAY NOT PASS LAWS SUPPORTING RIGHTS WHICH EXIST APART FROM THE
FOURTEENTH AMENDMENT. 

ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :









LABOR BOARD V. RICE MILLING CO., 341 U.S. 665 


NO. 313.  ARGUED FEBRUARY 27, 1951.  - DECIDED JUNE 4, 1951.  - 183 F.2D
21, REVERSED. 


ALTHOUGH THE UNION HERE INVOLVED WAS NOT CERTIFIED OR RECOGNIZED AS
THE REPRESENTATIVE OF THE EMPLOYEES OF A CERTAIN MILL ENGAGED IN
INTERSTATE COMMERCE, ITS AGENTS PICKETED THE MILL WITH THE OBJECT OF
SECURING RECOGNITION OF THE UNION AS THE COLLECTIVE BARGAINING
REPRESENTATIVE OF THE MILL'S EMPLOYEES.  IN THE COURSE OF THEIR
PICKETING, THE AGENTS SOUGHT TO INFLUENCE TWO MEN IN CHARGE OF A TRUCK
OF A NEUTRAL CUSTOMER TO REFUSE, IN THE COURSE OF THEIR EMPLOYMENT, TO
GO TO THE MILL FOR AN ORDER OF GOODS; AND THEY THREW ROCKS AT THE TRUCK
WHEN IT PROCEEDED TO THE MILL BY A DETOUR.  HELD:  SUCH ACTION DID NOT
VIOLATE THE "SECONDARY BOYCOTT" PROVISIONS OF SEC. 8(B)(4) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT, 1947.  PP. 666-674. 

(A)  THE UNION'S PICKETING AND ITS ENCOURAGEMENT OF THE MEN ON THE
TRUCK DID NOT AMOUNT TO SUCH AN INDUCEMENT OR ENCOURAGEMENT TO
"CONCERTED" ACTIVITIES AS THE SECTION PROSCRIBES.  PP. 670-671. 

(B)  IT IS THE OBJECT OF UNION ENCOURAGEMENT THAT IS PROSCRIBED BY
SEC. 8(B)(4), RATHER THAN THE MEANS ADOPTED TO MAKE IT FELT; AND
VIOLENCE ON THE PICKET LINE IS NOT MATERIAL IN THIS CASE, SINCE THE
COMPLAINT WAS NOT BASED UPON THAT VIOLENCE AS SUCH AND DID NOT RELY
UPON SEC. 8(B)(1)(A).  P. 672. 

(C)  CONGRESS DID NOT SEEK BY SEC. 8(B)(4) TO INTERFERE WITH ORDINARY
STRIKES.  PP. 672-673. 

(D)  BY SEC. 13, CONGRESS HAS MADE IT CLEAR THAT SEC. 8(B)(4), AND
ALL OTHER PARTS OF THE ACT WHICH OTHERWISE MIGHT BE READ SO AS TO
INTERFERE WITH, IMPEDE OR DIMINISH A UNION'S TRADITIONAL RIGHT TO
STRIKE, MAY BE SO READ ONLY IF SUCH INTERFERENCE, IMPEDIMENT OR
DIMINUTION IS "SPECIFICALLY PROVIDED FOR" IN THE ACT.  P. 673. 

NATIONAL LABOR RELATIONS BOARD V. INTERNATIONAL RICE MILLING CO., INC.
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE NATIONAL LABOR RELATIONS BOARD DISMISSED A COMPLAINT OF AN
ALLEGED VIOLATION OF SEC. 8(B)(4) OF THE NATIONAL LABOR RELATIONS ACT,
AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947.  84 N.L.R.B.
360.  THE COURT OF APPEALS SET ASIDE THE DISMISSAL AND REMANDED THE
CASE FOR FURTHER PROCEEDINGS.  183 F.2D 21.  THIS COURT GRANTED
CERTIORARI.  340 U.S. 902.  REVERSED, P. 674. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER A UNION VIOLATED SEC. 8(B)(4) OF
THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 29 U.S.C. SEC. 151, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, FN1  UNDER THE
FOLLOWING CIRCUMSTANCES:  ALTHOUGH NOT CERTIFIED OR RECOGNIZED AS THE
REPRESENTATIVE OF THE EMPLOYEES OF A CERTAIN MILL ENGAGED IN INTERSTATE
COMMERCE, THE AGENTS OF THE UNION PICKETED THE MILL WITH THE OBJECT OF
SECURING RECOGNITION OF THE UNION AS THE COLLECTIVE BARGAINING
REPRESENTATIVE OF THE MILL EMPLOYEES.  IN THE COURSE OF THEIR
PICKETING, THE AGENTS SOUGHT TO INFLUENCE, OR IN THE LANGUAGE OF THE
STATUTE THEY "ENCOURAGED," TWO MEN IN CHARGE OF A TRUCK OF A NEUTRAL
CUSTOMER OF THE MILL TO REFUSE, IN THE COURSE OF THEIR EMPLOYMENT, TO
GO TO THE MILL FOR AN ORDER OF GOODS.  FOR THE REASONS HEREINAFTER
STATED, WE HOLD THAT SUCH CONDUCT DID NOT VIOLATE SEC. 8(B)(4). 

THIS CASE WAS HEARD HERE WITH NO. 393, LABOR BOARD V. DENVER BUILDING
TRADES COUNCIL, POST, P. 675; NO. 108, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS V. LABOR BOARD, POST, P. 694; AND NO. 85, LOCAL 74,
UNITED BROTHERHOOD OF CARPENTERS V. LABOR BOARD, POST, P. 707.  ITS
FACTS, HOWEVER, DISTINGUISH IT FROM THOSE CASES. 

THIS REVIEW IS CONFINED TO THE SINGLE INCIDENT DESCRIBED IN THE
COMPLAINT ISSUED BY THE ACTING REGIONAL DIRECTOR OF THE NATIONAL LABOR
RELATIONS BOARD AGAINST THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 201, A.F.L.,
HEREIN CALLED THE UNION.  THE COMPLAINT ORIGINALLY WAS BASED UPON FOUR
CHARGES MADE AGAINST THE UNION BY SEVERAL RICE MILLS ENGAGED IN
INTERSTATE COMMERCE NEAR THE CENTER OF THE LOUISIANA RICE INDUSTRY. 
THE MILLS INCLUDED THE INTERNATIONAL RICE MILLING COMPANY, INC., WHICH
GIVES ITS NAME TO THIS PROCEEDING, AND THE KAPLAN RICE MILLS, INC., A
LOUISIANA CORPORATION, WHICH OPERATED THE MILL AT KAPLAN, LOUISIANA,
WHERE THE INCIDENT NOW BEFORE US OCCURRED.  THE COMPLAINT CHARGED THAT
THE UNION OR ITS AGENTS, BY THEIR CONDUCT TOWARD TWO EMPLOYEES OF A
NEUTRAL CUSTOMER OF THE KAPLAN RICE MILLS, ENGAGED IN AN UNFAIR LABOR
PRACTICE CONTRARY TO SEC. 8(B)(4).  THE BOARD, WITH ONE MEMBER NOT
PARTICIPATING, ADOPTED THE FINDINGS AND CONCLUSIONS OF ITS TRIAL
EXAMINER AS TO THE FACTS BUT DISAGREED WITH HIS RECOMMENDATION THAT
THOSE FACTS CONSTITUTED A VIOLATION OF SEC. 8(B)(4)(A) OR (B).  THE
BOARD DISMISSED THE COMPLAINT BUT ATTACHED THE TRIAL EXAMINER'S
INTERMEDIATE REPORT TO ITS DECISION.  84 N.L.R.B. 360.  THE COURT OF
APPEALS SET ASIDE THE DISMISSAL AND REMANDED THE CASE FOR FURTHER
PROCEEDINGS.  183 F.2D 21.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THE PRINCIPLE INVOLVED AND BECAUSE OF THE CONFLICTING
VIEWS OF SEVERAL CIRCUITS AS TO THE MEANING OF SEC. 8(B)(4).  340 U.S.
902.  FN2 

THE FINDINGS ADOPTED BY THE BOARD SHOW THAT THE INCIDENT BEFORE US
OCCURRED AT THE UNION'S PICKET LINE NEAR THE KAPLAN MILL IN OCTOBER,
1947.  THE PICKETS GENERALLY CARRIED SIGNS, ONE BEING "THIS JOB IS
UNFAIR TO" THE UNION.  THE GOAL OF THE PICKETS WAS RECOGNITION OF THE
UNION AS THE COLLECTIVE BARGAINING REPRESENTATIVE OF THE MILL
EMPLOYEES, BUT NONE OF THOSE EMPLOYEES TOOK PART IN THE PICKETING. 
LATE ONE AFTERNOON TWO EMPLOYEES OF THE SALES AND SERVICE HOUSE, WHICH
WAS A CUSTOMER OF THE MILL, CAME IN A TRUCK TO THE KAPLAN MILL TO
OBTAIN RICE OR BRAN FOR THEIR EMPLOYER.  THE UNION HAD NO GRIEVANCE
AGAINST THE CUSTOMER AND THE LATTER WAS A NEUTRAL IN THE DISPUTE
BETWEEN THE UNION AND THE MILL.  THE PICKETS FORMED A LINE ACROSS THE
ROAD AND WALKED TOWARD THE TRUCK.  WHEN THE TRUCK STOPPED, THE PICKETS
TOLD ITS OCCUPANTS THERE WAS A STRIKE ON AND THAT THE TRUCK WOULD HAVE
TO GO BACK.  THOSE ON THE TRUCK AGREED, WENT BACK TO THE HIGHWAY AND
STOPPED.  THERE ONE GOT OUT AND WENT TO THE MILL ACROSS THE STREET.  AT
THAT TIME A VICE PRESIDENT OF THE KAPLAN MILL CAME OUT AND ASKED
WHETHER THE TRUCK WAS ON ITS WAY TO THE MILL AND WHETHER ITS OCCUPANTS
WANTED TO GET THE ORDER THEY CAME FOR.  THE MAN ON THE TRUCK EXPLAINED
THAT HE WAS NOT THE DRIVER AND THAT HE WOULD HAVE TO SEE THE DRIVER. 
ON THE DRIVER'S RETURN, THE TRUCK PROCEEDED, WITH THE VICE PRESIDENT,
TO THE MILL BY A SHORT DETOUR.  THE PICKETS RAN TOWARD THE TRUCK AND
THREW STONES AT IT.  THE TRUCK ENTERED THE MILL, BUT THE FINDINGS DO
NOT DISCLOSE WHETHER THE ARTICLES SOUGHT THERE WERE OBTAINED.  THE
BOARD ADOPTED THE FINDING THAT "THE STOPPING OF THE SALES HOUSE TRUCK
DRIVERS AND THE USE OF FORCE IN CONNECTION WITH THE STOPPAGE WERE
WITHIN THE 'SCOPE OF THE EMPLOYMENT' OF THE PICKETS AS AGENTS OF THE
RESPONDENT (UNION) AND THAT SUCH ACTIVITIES ARE ATTRIBUTABLE TO THE
RESPONDENT."  84 N.L.R.B. 360, 372. 

THE MOST THAT CAN BE CONCLUDED FROM THE FOREGOING, TO ESTABLISH A
VIOLATION OF SEC. 8(B)(4), IS THAT THE UNION, IN THE COURSE OF
PICKETING THE KAPLAN MILL, DID ENCOURAGE TWO EMPLOYEES OF A NEUTRAL
CUSTOMER TO TURN BACK FROM AN INTENDED TRIP TO THE MILL AND THUS TO
REFUSE, IN THE COURSE OF THEIR EMPLOYMENT, TO TRANSPORT ARTICLES OR
PERFORM CERTAIN SERVICES FOR THEIR EMPLOYER.  WE MAY ASSUME, WITHOUT
THE NECESSITY OF ADOPTING THE BOARD'S FINDINGS TO THAT EFFECT, THAT THE
OBJECTS OF SUCH CONDUCT ON THE PART OF THE UNION AND ITS AGENTS WERE
(1) TO FORCE KAPLAN'S CUSTOMER TO CEASE HANDLING, TRANSPORTING OR
OTHERWISE DEALING IN PRODUCTS OF THE MILL OR TO CEASE DOING BUSINESS
WITH KAPLAN, AT THAT TIME AND PLACE, AND (2) TO ADD TO THE PRESSURE ON
KAPLAN TO RECOGNIZE THE UNION AS THE BARGAINING REPRESENTATIVE OF THE
MILL EMPLOYEES. 

A SUFFICIENT ANSWER TO THIS CLAIMED VIOLATION OF THE SECTION IS THAT
THE UNION'S PICKETING AND ITS ENCOURAGEMENT OF THE MEN ON THE TRUCK DID
NOT AMOUNT TO SUCH AN INDUCEMENT OR ENCOURAGEMENT TO "CONCERTED"
ACTIVITY AS THE SECTION PROSCRIBES.  WHILE EACH CASE MUST BE CONSIDERED
IN THE LIGHT OF ITS SURROUNDING CIRCUMSTANCES, YET THE APPLICABLE
PROSCRIPTIONS OF SEC. 8(B)(4) ARE EXPRESSLY LIMITED TO THE INDUCEMENT
OR ENCOURAGEMENT OF CONCERTED CONDUCT BY THE EMPLOYEES OF THE NEUTRAL
EMPLOYER.  FN3  THAT LANGUAGE CONTEMPLATES INDUCEMENT OR ENCOURAGEMENT
TO SOME CONCERT OF ACTION GREATER THAN IS EVIDENCED BY THE PICKETS'
REQUEST TO A DRIVER OF A SINGLE TRUCK TO DISCONTINUE A PENDING TRIP TO
A PICKETED MILL.  THERE WAS NO ATTEMPT BY THE UNION TO INDUCE ANY
ACTION BY THE EMPLOYEES OF THE NEUTRAL CUSTOMER WHICH WOULD BE MORE
WIDESPREAD THAN THAT ALREADY DESCRIBED.  THERE WERE NO INDUCEMENTS OR
ENCOURAGEMENTS APPLIED ELSEWHERE THAN ON THE PICKET LINE.  THE
LIMITATION OF THE COMPLAINT TO AN INCIDENT IN THE GEOGRAPHICALLY
RESTRICTED AREA NEAR THE MILL IS SIGNIFICANT, ALTHOUGH NOT NECESSARILY
CONCLUSIVE.  THE PICKETING WAS DIRECTED AT THE KAPLAN EMPLOYEES AND AT
THEIR EMPLOYER IN A MANNER TRADITIONAL IN LABOR DISPUTES.  CLEARLY,
THAT, IN ITSELF, WAS NOT PROSCRIBED BY SEC. 8(B)(4).  INSOFAR AS THE
UNION'S EFFORTS WERE DIRECTED BEYOND THAT AND TOWARD THE EMPLOYEES OF
ANYONE OTHER THAN KAPLAN, THERE IS NO SUGGESTION THAT THE UNION SOUGHT
CONCERTED CONDUCT BY SUCH OTHER EMPLOYEES.  SUCH EFFORTS ALSO FALL
SHORT OF THE PROSCRIPTIONS IN SEC. 8(B)(4).  IN THIS CASE, THEREFORE,
WE NEED NOT DETERMINE THE SPECIFIC OBJECTS TOWARD WHICH A UNION'S
ENCOURAGEMENT OF CONCERTED CONDUCT MUST BE DIRECTED IN ORDER TO AMOUNT
TO AN UNFAIR LABOR PRACTICE UNDER SUBSECTION (A) OR (B) OF SEC.
8(B)(4).  A UNION'S INDUCEMENTS OR ENCOURAGEMENTS REACHING INDIVIDUAL
EMPLOYEES OF NEUTRAL EMPLOYERS ONLY AS THEY HAPPEN TO APPROACH THE
PICKETED PLACE OF BUSINESS GENERALLY ARE NOT AIMED AT CONCERTED, AS
DISTINGUISHED FROM INDIVIDUAL, CONDUCT BY SUCH EMPLOYEES.  GENERALLY,
THEREFORE, SUCH ACTIONS DO NOT COME WITHIN THE PROSCRIPTION OF SEC.
8(B)(4), AND THEY DO NOT HERE. 

IN THE INSTANT CASE THE VIOLENCE ON THE PICKET LINE IS NOT MATERIAL. 
THE COMPLAINT WAS NOT BASED UPON THAT VIOLENCE, AS SUCH.  TO REACH IT,
THE COMPLAINT MORE PROPERLY WOULD HAVE RELIED UPON SEC. 8(B)(1)(A)  FN4
OR WOULD HAVE ADDRESSED ITSELF TO LOCAL AUTHORITIES.  THE SUBSTITUTION
OF VIOLENT COERCION IN PLACE OF PEACEFUL PERSUASION WOULD NOT IN ITSELF
BRING THE COMPLAINED-OF CONDUCT INTO CONFLICT WITH SEC. 8(B)(4).  IT IS
THE OBJECT OF UNION ENCOURAGEMENT THAT IS PROSCRIBED BY THAT SECTION,
RATHER THAN THE MEANS ADOPTED TO MAKE IT FELT.  FN5 

THAT CONGRESS DID NOT SEEK, BY SEC. 8(B)(4), TO INTERFERE WITH THE
ORDINARY STRIKE HAS BEEN INDICATED RECENTLY BY THIS COURT.  FN6  THIS
IS EMPHASIZED IN SEC. 13 AS FOLLOWS: 

"NOTHING IN THIS ACT, EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN,
SHALL BE CONSTRUED SO AS EITHER TO INTERFERE WITH OR IMPEDE OR DIMINISH
IN ANY WAY THE RIGHT TO STRIKE, OR TO AFFECT THE LIMITATIONS OR
QUALIFICATIONS ON THAT RIGHT."  61 STAT. 151, 29 U.S.C. (SUPP. III)
SEC. 163. 

BY SEC. 13, CONGRESS HAS MADE IT CLEAR THAT SEC. 8(B)(4), AND ALL
OTHER PARTS OF THE ACT WHICH OTHERWISE MIGHT BE READ SO AS TO INTERFERE
WITH, IMPEDE OR DIMINISH THE UNION'S TRADITIONAL RIGHT TO STRIKE, MAY
BE SO READ ONLY IF SUCH INTERFERENCE, IMPEDIMENT OR DIMINUTION IS
"SPECIFICALLY PROVIDED FOR" IN THE ACT.  FN7  NO SUCH SPECIFIC
PROVISION IN SEC. 8(B)(4) REACHES THE INCIDENT HERE.  THE MATERIAL
LEGISLATIVE HISTORY SUPPORTS THIS VIEW.  FN8 

ON THE SINGLE ISSUE BEFORE US, WE SUSTAIN THE ACTION OF THE BOARD AND
THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS REVERSED. 

FN1  "SEC.  8.  ... 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS - 

.         .         .         .         . 

"(4)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS:  (A) FORCING OR
REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR
EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON; (B) FORCING OR REQUIRING ANY OTHER
EMPLOYER TO RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE
REPRESENTATIVE OF HIS EMPLOYEES UNLESS SUCH LABOR ORGANIZATION HAS BEEN
CERTIFIED AS THE REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS
OF SECTION 9; (C) FORCING OR REQUIRING ANY EMPLOYER TO RECOGNIZE OR
BARGAIN WITH A PARTICULAR LABOR ORGANIZATION AS THE REPRESENTATIVE OF
HIS EMPLOYEES IF ANOTHER LABOR ORGANIZATION HAS BEEN CERTIFIED AS THE
REPRESENTATIVE OF SUCH EMPLOYEES UNDER THE PROVISIONS OF SECTION 9; (D)
FORCING OR REQUIRING ANY EMPLOYER TO ASSIGN PARTICULAR WORK TO
EMPLOYEES IN A PARTICULAR LABOR ORGANIZATION OR IN A PARTICULAR TRADE,
CRAFT, OR CLASS RATHER THAN TO EMPLOYEES IN ANOTHER LABOR ORGANIZATION
OR IN ANOTHER TRADE, CRAFT, OR CLASS, UNLESS SUCH EMPLOYER IS FAILING
TO CONFORM TO AN ORDER OR CERTIFICATION OF THE BOARD DETERMINING THE
BARGAINING REPRESENTATIVE FOR EMPLOYEES PERFORMING SUCH WORK:
PROVIDED, THAT NOTHING CONTAINED IN THIS SUBSECTION (B) 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; ...."  61 STAT. 140-142, 29 U.S.C. (SUPP.
III) SEC. 158(B)(4). 

THE ABOVE PROVISIONS, TOGETHER WITH THOSE OF SEC. 303, 61 STAT. 158,
29 U.S.C. (SUPP. III) SEC. 187, HAVE BEEN REFERRED TO BY CONGRESS AND
THE COURTS AS THE "SECONDARY BOYCOTT SECTIONS" OF THE ACT. 

FN2  WHILE THE COMPLAINT CHARGED NO UNFAIR LABOR PRACTICE ON THE PART
OF THE UNION IN ITS RELATIONS WITH EMPLOYEES OF THE KAPLAN MILL, IT DID
CHARGE THAT THE UNION ALSO VIOLATED SEC. 8(B)(4)(A) BY ITS CONDUCT IN
INDUCING AND ENCOURAGING EMPLOYEES OF TWO NEUTRAL RAILROADS TO ENGAGE
IN A CONCERTED REFUSAL, IN THE COURSE OF THEIR EMPLOYMENT, TO TRANSPORT
OR OTHERWISE HANDLE ARTICLES SHIPPED TO OR FROM SOME OF THE RESPECTIVE
MILLS, INCLUDING THE KAPLAN MILL.  NOT ONLY DID THE ENCOURAGEMENT OF
CONCERTED ACTION WHICH WAS ALLEGED IN THAT CHARGE DIFFER SUBSTANTIALLY
FROM THE CONDUCT WHICH IS BEFORE US BUT THE BOARD FOUND THAT THE
RAILROAD EMPLOYEES WERE NOT EMPLOYEES WITHIN THE MEANING OF SEC.
8(B)(4).  84 N.L.R.B. 360.  THE COURT OF APPEALS HELD TO THE CONTRARY
AND REMANDED THE CHARGE FOR FURTHER PROCEEDINGS.  183 F.2D 21, 24-26. 
THE BOARD, HOWEVER, DOES NOT SEEK A REVIEW OF THAT ORDER.    FN3  IT IS
NOT CHARGED HERE THAT THE UNION OR ITS AGENTS THEMSELVES ENGAGED IN A
STRIKE OR CONCERTED ACTIVITY FOR AN OBJECT PROSCRIBED BY SEC. 8(B)(4). 

FN4  "SEC.  8.  ... 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS - 

"(1)  TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SECTION 7: ...  "  61 STAT. 140-141, 29 U.S.C.
(SUPP. III) SEC. 158(B)(1)(A). 

"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, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM
ANY OR ALL OF SUCH ACTIVITIES  ...  " 61 STAT. 140, 29 U.S.C. (SUPP.
III) SEC. 157. 

FN5  "  ...  THE LABOR MANAGEMENT RELATIONS ACT DECLARED IT TO BE AN
UNFAIR LABOR PRACTICE FOR A UNION TO INDUCE OR ENGAGE IN A STRIKE OR
CONCERTED REFUSAL TO WORK WHERE AN OBJECT THEREOF IS ANY OF CERTAIN
ENUMERATED ONES.  SEC. 8(B)(4)  ...  WHILE THE FEDERAL BOARD IS
EMPOWERED TO FORBID A STRIKE, WHEN AND BECAUSE ITS PURPOSE IS ONE THAT
THE FEDERAL ACT MADE ILLEGAL, IT HAS BEEN GIVEN NO POWER TO FORBID ONE
BECAUSE ITS METHOD IS ILLEGAL - EVEN IF THE ILLEGALITY WERE TO CONSIST
OF ACTUAL OR THREATENED VIOLENCE TO PERSONS OR DESTRUCTION OF
PROPERTY."  INTERNATIONAL UNION V. WISCONSIN BOARD, 336 U.S. 245, 253. 

FN6  IN THIS ACT "CONGRESS SAFEGUARDED THE EXERCISE BY EMPLOYEES OF
'CONCERTED ACTIVITIES' AND EXPRESSLY RECOGNIZED THE RIGHT TO STRIKE." 
INTERNATIONAL UNION V. O'BRIEN, 339 U.S. 454, 457; SEE ALSO,
AMALGAMATED ASSN. OF EMPLOYEES V. WISCONSIN BOARD, 340 U.S. 383, 389,
404; UNITED ELECTRICAL & MACHINE WORKERS, 85 N.L.R.B. 417, 418; OIL
WORKERS INTERNATIONAL UNION, 84 N.L.R.B. 315, 318-320. 

FN7  SEE ALSO, THE PROTECTION GIVEN TO THE RIGHT TO ENGAGE IN
CONCERTED ACTIVITIES BY SEC. 7 OF THE ACT, NOTE 4, SUPRA.  AS TO BOTH
SECS. 13 AND 7, SEE INTERNATIONAL UNION V. WISCONSIN BOARD, SUPRA, AT
258-264. 

THE CHARACTER OF THE PROBLEM OF RECONCILIATION OF THE RIGHT TO STRIKE
WITH THE LIMITATIONS EXPRESSED IN SEC. 8(B)(4) IS NOT UNLIKE THAT WHICH
CONFRONTED THE COURT IN ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, 325
U.S. 797, 806: 

"THE RESULT OF ALL THIS IS THAT WE HAVE TWO DECLARED CONGRESSIONAL
POLICIES WHICH IT IS OUR RESPONSIBILITY TO TRY TO RECONCILE.  THE ONE
SEEKS TO PRESERVE A COMPETITIVE BUSINESS ECONOMY; THE OTHER TO PRESERVE
THE RIGHTS OF LABOR TO ORGANIZE TO BETTER ITS CONDITIONS THROUGH THE
AGENCY OF COLLECTIVE BARGAINING.  WE MUST DETERMINE HERE HOW FAR
CONGRESS INTENDED ACTIVITIES UNDER ONE OF THESE POLICIES TO NEUTRALIZE
THE RESULTS ENVISIONED BY THE OTHER." 

FN8  SENATOR TAFT, CHAIRMAN OF THE SENATE COMMITTEE ON LABOR AND
PUBLIC WELFARE, AND FLOOR MANAGER FOR THE BILL IN THE SENATE, SAID:
"SO FAR AS THE BILL IS CONCERNED, WE HAVE PROCEEDED ON THE THEORY THAT
THERE IS A RIGHT TO STRIKE AND THAT LABOR PEACE MUST BE BASED ON FREE
COLLECTIVE BARGAINING.  WE HAVE DONE NOTHING TO OUTLAW STRIKES FOR
BASIC WAGES, HOURS, AND WORKING CONDITIONS AFTER PROPER OPPORTUNITY FOR
MEDIATION."  93 CONG. REC. 3835.  SIMILAR STATEMENTS BY SENATOR TAFT
APPEAR AT 93 CONG. REC. 3838, 4198, 4867, 6446, 7537.  SEVERAL OTHER
MEMBERS OF THE COMMITTEE EXPRESSED LIKE VIEWS:  SENATOR ELLENDER AT 93
CONG. REC. 4131-4132; SENATOR BALL AT 4834, 4838, 7529-7530; SENATOR
AIKEN AT 4860; AND SENATOR MORSE AT 4864, 4871-4873. 

SEE ALSO, "THE PRIMARY STRIKE FOR RECOGNITION (WITHOUT A BOARD
CERTIFICATION) IS NOT PROSCRIBED."  S. REP. NO. 105, 80TH CONG., 1ST
SESS. (PT. 1) 22, AND SEE H.R. REP. NO. 510, 80TH CONG., 1ST SESS. 43. 

IN DISCUSSING THE EFFECT OF SEC. 8(B)(4), AND IN SHOWING ITS
APPLICATION ONLY TO CIRCUMSTANCES OTHER THAN THOSE INVOLVED IN THIS
CASE, SENATOR TAFT SAID FURTHER: 

"THE SENATOR WILL FIND A GREAT MANY DECISIONS  ...  WHICH HOLD THAT
UNDER THE COMMON LAW A SECONDARY BOYCOTT IS UNLAWFUL.  ...  UNDER THE
PROVISIONS OF THE NORRIS-LAGUARDIA ACT, IT BECAME IMPOSSIBLE TO STOP A
SECONDARY BOYCOTT OR ANY OTHER KIND OF A STRIKE, NO MATTER HOW UNLAWFUL
IT MAY HAVE BEEN AT COMMON LAW.  ALL THIS PROVISION OF THE BILL (SEC.
8(B)(4)) DOES IS TO REVERSE THE EFFECT OF THE LAW AS TO SECONDARY
BOYCOTTS."  93 CONG. REC. 4198. 
..END :



















LABOR BOARD V. DENVER BLDG. COUNCIL, 341 U.S. 675 


NO. 393.  ARGUED FEBRUARY 27, 1951.  - DECIDED JUNE 4, 1951.  - 87 U.S.
APP. D.C. 293, 186 F.2D 326, REVERSED. 


1.  A DECISION OF A DISTRICT COURT IN A PRELIMINARY PROCEEDING UNDER
SEC. 10(L) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, THAT THE
ACTIVITIES COMPLAINED OF DID NOT AFFECT INTERSTATE COMMERCE AND WERE
THEREFORE NOT WITHIN THE JURISDICTION OF THE BOARD, WAS NOT RES
JUDICATA OF THAT ISSUE IN A PROCEEDING ON THE MERITS UNDER SEC. 10(E)
AND (F).  PP. 681-683. 

2.  A SUBCONTRACTOR ENGAGED BY A GENERAL CONTRACTOR TO DO THE
ELECTRICAL WORK ON A BUILDING BEING CONSTRUCTED PURCHASED $86,560 OF
RAW MATERIALS DURING THE YEAR, $55,745 OF WHICH WERE PURCHASED OUTSIDE
THE STATE.  IT PERFORMED NO SERVICES OUTSIDE THE STATE BUT SHIPPED
$5,000 OF ITS PRODUCTS OUTSIDE THE STATE.  IT HAD EXPENDED $315 FOR
LABOR AND $350 FOR MATERIALS ON THE PROJECT WHEN ITS SERVICES WERE
TERMINATED BECAUSE OF A STRIKE.  BOTH THE NATIONAL LABOR RELATIONS
BOARD AND THE COURT OF APPEALS FOUND THAT THE STRIKE AFFECTED
INTERSTATE COMMERCE.  HELD:  THIS CONCLUSION IS SUSTAINED.  PP. 683
685. 

(A)  THE FACT THAT THE INSTANT BUILDING, AFTER ITS COMPLETION, MIGHT
BE USED ONLY FOR LOCAL PURPOSES DOES NOT ALTER THE FACT THAT ITS
CONSTRUCTION, AS DISTINGUISHED FROM ITS LATER USE, AFFECTED INTERSTATE
COMMERCE.  P. 684. 

(B)  THE MAXIM DE MINIMIS NON CURAT LEX DID NOT REQUIRE THE BOARD TO
REFUSE TO TAKE JURISDICTION OF THE INSTANT CASE.  P. 685. 

3.  THE NATIONAL LABOR RELATIONS BOARD FOUND THAT, BY ENGAGING IN A
STRIKE AN OBJECT OF WHICH WAS TO FORCE THE GENERAL CONTRACTOR ON A
CONSTRUCTION PROJECT TO TERMINATE ITS CONTRACT WITH A SUBCONTRACTOR
EMPLOYING NONUNION LABOR ON THE PROJECT, RESPONDENT LABOR ORGANIZATION
COMMITTED AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC.
8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR
MANAGEMENT RELATIONS ACT, 1947.  HELD:  THIS FINDING IS SUSTAINED. 
LABOR BOARD V. RICE MILLING CO., ANTE, P. 665, DISTINGUISHED.  PP. 685
692. 

(A)  IT WAS AN OBJECT OF THE STRIKE TO FORCE THE CONTRACTOR TO
TERMINATE THE CONTRACT OF THE ELECTRICAL SUBCONTRACTOR.  PP. 687-689. 

(B)  A STRIKE WITH SUCH AN OBJECT IS AN UNFAIR LABOR PRACTICE WITHIN
THE MEANING OF SEC. 8(B)(4)(A), EVEN THOUGH THAT MAY NOT BE THE SOLE
OBJECT.  PP. 689-690. 

(C)  SECTION 8(C) SAFEGUARDING FREEDOM OF SPEECH HAS NO SIGNIFICANT
APPLICATION TO THE PICKET'S PLACARD IN THIS CASE AND DOES NOT IMMUNIZE
RESPONDENT'S ACTION AGAINST THE SPECIFIC PROVISIONS OF SEC.
8(B)(4)(A).  SEE ELECTRICAL WORKERS V. LABOR BOARD, POST, P. 694.  PP.
690-691. 

(D)  THE BOARD'S FINDINGS ON QUESTIONS OF FACT IN THIS FIELD ARE
CONCLUSIVE WHEN SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD AS A
WHOLE; AND THE BOARD'S INTERPRETATION AND APPLICATION OF THE ACT IN
DOUBTFUL SITUATIONS ARE ENTITLED TO WEIGHT.  PP. 691-692. 

(E)  AS APPLIED IN THIS CASE, THE VIEWS OF THE BOARD CONFORM WITH THE
DUAL CONGRESSIONAL OBJECTIVE OF PRESERVING THE RIGHT OF LABOR
ORGANIZATIONS TO BRING PRESSURE TO BEAR ON OFFENDING EMPLOYERS IN
PRIMARY LABOR DISPUTES AND OF SHIELDING UNOFFENDING EMPLOYERS AND
OTHERS FROM PRESSURES IN CONTROVERSIES NOT THEIR OWN.  P. 692. 

NATIONAL LABOR RELATIONS BOARD V. DENVER BUILDING & CONSTRUCTION
TRADES COUNCIL ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE NATIONAL LABOR RELATIONS BOARD FOUND RESPONDENTS GUILTY OF AN
UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC. 8(B)(4)(A) OF THE
NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT, 1947, AND ORDERED IT TO CEASE AND DESIST.  82 N.L.R.B.
1195.  THE COURT OF APPEALS DENIED ENFORCEMENT.  87 U.S. APP. D.C. 293,
186 F.2D 326.  THIS COURT GRANTED CERTIORARI.  340 U.S. 902.  REVERSED,
P. 692. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION HERE IS WHETHER A LABOR ORGANIZATION COMMITTED
AN UNFAIR LABOR PRACTICE, WITHIN THE MEANING OF SEC. 8(B)(4)(A) OF THE
NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 29 U.S.C. SEC. 151, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947,  FN1  BY ENGAGING
IN A STRIKE, AN OBJECT OF WHICH WAS TO FORCE THE GENERAL CONTRACTOR ON
A CONSTRUCTION PROJECT TO TERMINATE ITS CONTRACT WITH A CERTAIN
SUBCONTRACTOR ON THAT PROJECT.  FOR THE REASONS HEREAFTER STATED, WE
HOLD THAT SUCH AN UNFAIR LABOR PRACTICE WAS COMMITTED. 

IN SEPTEMBER, 1947, DOOSE & LINTNER WAS THE GENERAL CONTRACTOR FOR
THE CONSTRUCTION OF A COMMERCIAL BUILDING IN DENVER, COLORADO.  IT
AWARDED A SUBCONTRACT FOR ELECTRICAL WORK ON THE BUILDING, IN AN
ESTIMATED AMOUNT OF $2,300, TO GOULD & PREISNER, A FIRM WHICH FOR 20
YEARS HAD EMPLOYED NONUNION WORKMEN ON CONSTRUCTION WORK IN THAT CITY. 
THE LATTER'S EMPLOYEES PROVED TO BE THE ONLY NONUNION WORKMEN ON THE
PROJECT.  THOSE OF THE GENERAL CONTRACTOR AND OF THE OTHER
SUBCONTRACTORS WERE MEMBERS OF UNIONS AFFILIATED WITH THE RESPONDENT
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL (HERE CALLED THE
COUNCIL).  IN NOVEMBER A REPRESENTATIVE OF ONE OF THOSE UNIONS TOLD
GOULD THAT HE DID NOT SEE HOW THE JOB COULD PROGRESS WITH GOULD'S
NONUNION MEN ON IT.  GOULD INSISTED THAT THEY WOULD COMPLETE THE
ELECTRICAL WORK UNLESS BODILY PUT OFF.  THE REPRESENTATIVE REPLIED THAT
THE SITUATION WOULD BE DIFFICULT FOR BOTH GOULD & PREISNER AND DOOSE &
LINTNER. 

JANUARY 8, 1948, THE COUNCIL'S BOARD OF BUSINESS AGENTS INSTRUCTED
THE COUNCIL'S REPRESENTATIVE "TO PLACE A PICKET ON THE JOB STATING THAT
THE JOB WAS UNFAIR" TO IT.  FN2  IN KEEPING WITH THE COUNCIL'S
PRACTICE,  FN3  EACH AFFILIATE WAS NOTIFIED OF THAT DECISION.  THAT
NOTICE WAS A SIGNAL IN THE NATURE OF AN ORDER TO THE MEMBERS OF THE
AFFILIATED UNIONS TO LEAVE THE JOB AND REMAIN AWAY UNTIL OTHERWISE
ORDERED.  REPRESENTATIVES OF THE COUNCIL AND EACH OF THE RESPONDENT
UNIONS VISITED THE PROJECT AND REMINDED THE CONTRACTOR THAT GOULD &
PREISNER EMPLOYED NONUNION WORKMEN AND SAID THAT UNION MEN COULD NOT
WORK ON THE JOB WITH NONUNION MEN.  THEY FURTHER ADVISED THAT IF GOULD
& PREISNER'S MEN DID WORK ON THE JOB, THE COUNCIL AND ITS AFFILIATES
WOULD PUT A PICKET ON IT TO NOTIFY THEIR MEMBERS THAT NONUNION MEN WERE
WORKING ON IT AND THAT THE JOB WAS UNFAIR.  ALL PARTIES STOOD THEIR
GROUND. 

JANUARY 9, THE COUNCIL POSTED A PICKET AT THE PROJECT CARRYING A
PLACARD STATING "THIS JOB UNFAIR TO DENVER BUILDING AND CONSTRUCTION
TRADES COUNCIL."  FN4  HE WAS PAID BY THE COUNCIL AND HIS PICKETING
CONTINUED FROM JANUARY 9 THROUGH JANUARY 22.  DURING THAT TIME THE ONLY
PERSONS WHO REPORTED FOR WORK WERE THE NONUNION ELECTRICIANS OF GOULD &
PREISNER.  JANUARY 22, BEFORE GOULD & PREISNER HAD COMPLETED ITS
SUBCONTRACT, THE GENERAL CONTRACTOR NOTIFIED IT TO GET OFF THE JOB SO
THAT DOOSE & LINTNER COULD CONTINUE WITH THE PROJECT.  JANUARY 23, THE
COUNCIL REMOVED ITS PICKET AND SHORTLY THEREAFTER THE UNION EMPLOYEES
RESUMED WORK ON THE PROJECT.  GOULD & PREISNER PROTESTED THIS TREATMENT
BUT ITS WORKMEN WERE DENIED ENTRANCE TO THE JOB. 

ON CHARGES FILED BY GOULD & PREISNER, THE REGIONAL DIRECTOR OF THE
NATIONAL LABOR RELATIONS BOARD ISSUED THE COMPLAINT IN THIS CASE
AGAINST THE COUNCIL AND THE RESPONDENT UNIONS.  FN5  IT ALLEGED THAT
THEY HAD ENGAGED IN A STRIKE OR HAD CAUSED STRIKE ACTION TO BE TAKEN ON
THE PROJECT BY EMPLOYEES OF THE GENERAL CONTRACTOR AND OF OTHER
SUBCONTRACTORS, AN OBJECT OF WHICH WAS TO FORCE THE GENERAL CONTRACTOR
TO CEASE DOING BUSINESS WITH GOULD & PREISNER ON THAT PROJECT. 

BETWEEN THE BOARD'S RECEIPT OF THE CHARGES AND THE FILING OF THE
COMPLAINT BASED UPON THEM, THE REGIONAL DIRECTOR OF THE BOARD
PETITIONED THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO FOR INJUNCTIVE RELIEF.  FN6  THAT PETITION WAS DISMISSED ON
THE JURISDICTIONAL GROUND THAT THE ACTIVITIES COMPLAINED OF DID NOT
AFFECT INTERSTATE COMMERCE.  SPERRY V. DENVER BUILDING TRADES COUNCIL,
77 F.SUPP.  321.  SUCH ACTION WILL BE DISCUSSED LATER UNDER THE HEADING
OF RES JUDICATA.  HEARINGS WERE HELD BY THE BOARD'S TRIAL EXAMINER ON
THE MERITS OF THE COMPLAINT.  THE BOARD ADOPTED ITS EXAMINER'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, WITH MINOR ADDITIONS AND
MODIFICATIONS NOT HERE MATERIAL.  IT ATTACHED THE EXAMINER'S
INTERMEDIATE REPORT TO ITS DECISION AND ORDERED RESPONDENTS TO CEASE
AND DESIST FROM ENGAGING IN THE ACTIVITIES CHARGED.  82 N.L.R.B. 1195. 
RESPONDENTS PETITIONED THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT FOR A REVIEW UNDER SEC. 10(F).  FN7  THE
BOARD ANSWERED AND ASKED FOR ENFORCEMENT OF ITS ORDER.  THAT COURT
HELD, WITH ONE JUDGE DISSENTING, THAT THE CONDUCT COMPLAINED OF
AFFECTED INTERSTATE COMMERCE SUFFICIENTLY TO GIVE THE BOARD
JURISDICTION OVER IT, BUT THE COURT UNANIMOUSLY SET ASIDE THE ORDER OF
THE BOARD AND SAID:  "CONVINCED THAT THE ACTION IN THE CIRCUMSTANCES OF
THIS CASE IS PRIMARY AND NOT SECONDARY WE ARE OBLIGED TO REFUSE TO
ENFORCE THE ORDER BASED ON SEC. 8(B)(4)(A)."  87 U.S. APP. D.C. 293,
304, 186 F.2D 326, 337.  THE BOARD CLAIMED A CONFLICT BETWEEN THAT
CONCLUSION AND THE REASONING OF THE COURT OF APPEALS FOR THE SECOND
CIRCUIT IN NO. 108, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS V.
LABOR BOARD, 181 F.2D 34, AND OF THAT FOR THE SIXTH CIRCUIT IN NO. 85,
LABOR BOARD V. LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS, 181 F.2D
126.  WE GRANTED CERTIORARI IN EACH CASE, 340 U.S. 902-903, AND ALL
WERE ARGUED WITH NO. 313, LABOR BOARD V. INTERNATIONAL RICE MILLING
CO., ANTE, P. 665.  FN8  IN ANOTHER COMPANION CASE, NO. 387, UNITED
BROTHERHOOD OF CARPENTERS V. LABOR BOARD, DECIDED BY THE COURT OF
APPEALS FOR THE TENTH CIRCUIT, 184 F.2D 60, CERTIORARI HAS BEEN DENIED
THIS DAY, POST, P. 947. 

I. RES JUDICATA.  - RESPONDENTS NOT ONLY ATTACK THE JURISDICTION OF
THE BOARD ON THE GROUND THAT THE ACTIONS COMPLAINED OF DID NOT AFFECT
INTERSTATE COMMERCE, BUT THEY CONTEND THAT THE DECISION RENDERED ON
THAT POINT BY THE DISTRICT COURT FOR THE DISTRICT OF COLORADO IN SPERRY
V. DENVER BUILDING TRADES COUNCIL, SUPRA, HAS MADE THE ISSUE RES
JUDICATA.  FN9  WE DO NOT AGREE.  THE DISTRICT COURT DID NOT HAVE
BEFORE IT THE RECORD ON THE MERITS.  IT PROCEEDED UNDER SEC. 10(L) FN10
WHICH IS DESIGNED TO ASSIST A PRELIMINARY INVESTIGATION OF THE CHARGES
BEFORE THE FILING OF A COMPLAINT.  IF THE OFFICER OR REGIONAL ATTORNEY
TO WHOM THE MATTER IS REFERRED HAS REASONABLE CAUSE TO BELIEVE THAT A
CHARGE IS TRUE AND THAT A COMPLAINT SHOULD ISSUE, THE STATUTE SAYS THAT
HE SHALL PETITION AN APPROPRIATE DISTRICT COURT FOR INJUNCTIVE RELIEF,
PENDING THE FINAL ADJUDICATION OF THE BOARD.  SUCH PROCEEDING IS
INDEPENDENT OF THAT ON THE MERITS UNDER SEC. 10(A)-(D).  THERE IS A
SEPARATE PROVISION FOR SECURING INJUNCTIVE RELIEF AFTER THE FILING OF
THE COMPLAINT.  SEC. 10(J).  COURT REVIEW IS AUTHORIZED IN SEC. 10(E)
AND (F).  AS HELD BY THE BOARD, 82 N.L.R.B. AT 1203-1204, AND THE COURT
BELOW, 87 U.S. APP. D.C. AT 297, 299, 186 F.2D AT 330, 332, THE VERY
SCHEME OF THE STATUTE ACCORDINGLY CONTEMPLATES THAT A DECISION ON
JURISDICTION MADE IN THE INDEPENDENT PRELIMINARY PROCEEDING FOR
INTERLOCUTORY RELIEF, UNDER SEC. 10(L), SHALL NOT FORECLOSE A
PROCEEDING ON THE MERITS SUCH AS IS NOW BEFORE US.  FN11 

II.  EFFECT ON INTERSTATE COMMERCE.  - THE ACTIVITIES COMPLAINED OF
MUST AFFECT INTERSTATE COMMERCE IN ORDER TO BRING THEM WITHIN THE
JURISDICTION OF THE BOARD.  FN12  THE BOARD HERE FOUND THAT THEIR
EFFECT WAS SUFFICIENT TO SUSTAIN ITS JURISDICTION AND THE COURT OF
APPEALS WAS SATISFIED.  WE SEE NO JUSTIFICATION FOR REVERSING THAT
CONCLUSION. 

THE BOARD FOUND THAT, IN 1947, GOULD & PREISNER PURCHASED $86,560.30
OF RAW MATERIALS, OF WHICH $55,745.25, OR ABOUT 65%, WERE PURCHASED
OUTSIDE OF COLORADO.  ALSO, MOST OF THE MERCHANDISE IT PURCHASED IN
COLORADO HAD BEEN PRODUCED OUTSIDE OF THAT STATE.  WHILE GOULD &
PREISNER PERFORMED NO SERVICES OUTSIDE OF COLORADO, IT SHIPPED $5,000
OF ITS PRODUCTS OUTSIDE OF THAT STATE.  UP TO THE TIME WHEN ITS
SERVICES WERE DISCONTINUED ON THE INSTANT PROJECT, IT HAD EXPENDED ON
IT ABOUT $315 FOR LABOR AND ABOUT $350 FOR MATERIALS.  ON A 65% BASIS,
$225 OF THOSE MATERIALS WOULD BE FROM OUT OF THE STATE.  THE BOARD
ADOPTED ITS EXAMINER'S FINDING THAT ANY WIDESPREAD APPLICATION OF THE
PRACTICES HERE CHARGED MIGHT WELL RESULT IN SUBSTANTIALLY DECREASING
THE INFLUX OF MATERIALS INTO COLORADO FROM OUTSIDE THE STATE AND IT
RECOGNIZED THAT GOULD & PREISNER'S ANNUAL PURCHASE OF OVER $55,000 OF
SUCH MATERIALS WAS NOT NEGLIGIBLE. 

THE BOARD ALSO ADOPTED THE FINDING THAT THE ACTIVITIES COMPLAINED OF
HAD A CLOSE, INTIMATE AND SUBSTANTIAL RELATION TO TRADE, TRAFFIC AND
COMMERCE AMONG THE STATES AND THAT THEY TENDED TO LEAD, AND HAD LED, TO
LABOR DISPUTES BURDENING AND OBSTRUCTING COMMERCE AND THE FREE FLOW OF
COMMERCE.  THE FACT THAT THE INSTANT BUILDING, AFTER ITS COMPLETION,
MIGHT BE USED ONLY FOR LOCAL PURPOSES DOES NOT ALTER THE FACT THAT ITS
CONSTRUCTION, AS DISTINGUISHED FROM ITS LATER USE, AFFECTED INTERSTATE
COMMERCE. 

EVEN WHEN THE EFFECT OF ACTIVITIES ON INTERSTATE COMMERCE IS
SUFFICIENT TO ENABLE THE BOARD TO TAKE JURISDICTION OF A COMPLAINT, THE
BOARD SOMETIMES PROPERLY DECLINES TO DO SO, STATING THAT THE POLICIES
OF THE ACT WOULD NOT BE EFFECTUATED BY ITS ASSERTION OF JURISDICTION IN
THAT CASE.  HERE, HOWEVER, THE BOARD NOT ONLY UPHELD THE FILING OF THE
COMPLAINT BUT IT SUSTAINED THE CHARGES MADE IN IT. 

THE SAME JURISDICTIONAL LANGUAGE AS THAT NOW IN EFFECT APPEARED IN
THE NATIONAL LABOR RELATIONS ACT OF 1935  FN13  AND THIS COURT SAID OF
IT IN THAT CONNECTION: 

"EXAMINING THE ACT IN THE LIGHT OF ITS PURPOSE AND OF THE
CIRCUMSTANCES IN WHICH IT MUST BE APPLIED WE CAN PERCEIVE NO BASIS FOR
INFERRING ANY INTENTION OF CONGRESS TO MAKE THE OPERATION OF THE ACT
DEPEND ON ANY PARTICULAR VOLUME OF COMMERCE AFFECTED MORE THAN THAT TO
WHICH COURTS WOULD APPLY THE MAXIM DE MINIMIS."  LABOR BOARD V.
FAINBLATT, 306 U.S. 601, 607; SEE ALSO, LABOR BOARD V. JONES & LAUGHLIN
STEEL CORP., 301 U.S. 1. 

THE MAXIM DE MINIMIS NON CURAT LEX DOES NOT REQUIRE THE BOARD TO
REFUSE TO TAKE JURISDICTION OF THE INSTANT CASE.  FN14 

III.  THE SECONDARY BOYCOTT.  - WE NOW REACH THE MERITS.  THEY
REQUIRE A STUDY OF THE OBJECTIVES OF THE STRIKE AND A DETERMINATION
WHETHER THE STRIKE CAME WITHIN THE DEFINITION OF AN UNFAIR LABOR
PRACTICE STATED IN SEC. 8(B)(4)(A). 

THE LANGUAGE OF THAT SECTION WHICH IS HERE ESSENTIAL IS AS FOLLOWS: 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
... 

     .         .         .         .         . 

"(4) TO ENGAGE IN  ...  A STRIKE  ...  WHERE AN OBJECT THEREOF IS:
(A) FORCING OR REQUIRING ...  ANY EMPLOYER OR OTHER PERSON  ...  TO
CEASE DOING BUSINESS WITH ANY OTHER PERSON; ...  "  61 STAT. 141, 29
U.S.C. (SUPP. III) SEC. 158(B)(4)(A). 

WHILE SEC. 8(B)(4) DOES NOT EXPRESSLY MENTION "PRIMARY" OR
"SECONDARY" DISPUTES, STRIKES OR BOYCOTTS, THAT SECTION OFTEN IS
REFERRED TO IN THE ACT'S LEGISLATIVE HISTORY AS ONE OF THE ACT'S
"SECONDARY BOYCOTT SECTIONS."  THE OTHER IS SEC. 303, 61 STAT. 158, 29
U.S.C. (SUPP. III) SEC. 187, WHICH USES THE SAME LANGUAGE IN DEFINING
THE BASIS FOR PRIVATE ACTIONS FOR DAMAGES CAUSED BY THESE PROSCRIBED
ACTIVITIES. 

SENATOR TAFT, WHO WAS THE SPONSOR OF THE BILL IN THE SENATE AND WAS
THE CHAIRMAN OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE IN
CHARGE OF THE BILL, SAID, IN DISCUSSING THIS SECTION: 

"  ...  UNDER THE PROVISIONS OF THE NORRIS-LAGUARDIA ACT, IT BECAME
IMPOSSIBLE TO STOP A SECONDARY BOYCOTT OR ANY OTHER KIND OF A STRIKE,
NO MATTER HOW UNLAWFUL IT MAY HAVE BEEN AT COMMON LAW.  ALL THIS
PROVISION OF THE BILL DOES IS TO REVERSE THE EFFECT OF THE LAW AS TO
SECONDARY BOYCOTTS.  IT HAS BEEN SET FORTH THAT THERE ARE GOOD
SECONDARY BOYCOTTS AND BAD SECONDARY BOYCOTTS.  OUR COMMITTEE HEARD
EVIDENCE FOR WEEKS AND NEVER SUCCEEDED IN HAVING ANYONE TELL US ANY
DIFFERENCE BETWEEN DIFFERENT KINDS OF SECONDARY BOYCOTTS.  SO WE HAVE
SO BROADENED THE PROVISION DEALING WITH SECONDARY BOYCOTTS AS TO MAKE
THEM AN UNFAIR LABOR PRACTICE."  93 CONG. REC. 4198. 

THE CONFERENCE REPORT TO THE HOUSE OF REPRESENTATIVES SAID: 

"UNDER CLAUSE (A)(OF SEC. 8(B)(4)) STRIKES OR BOYCOTTS, OR ATTEMPTS
TO INDUCE OR ENCOURAGE SUCH ACTION, WERE MADE UNFAIR LABOR PRACTICES IF
THE PURPOSE WAS TO FORCE AN EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANOTHER, OR TO CEASE DOING BUSINESS WITH ANY OTHER PERSON.  THUS IT
WAS MADE AN UNFAIR LABOR PRACTICE FOR A UNION TO ENGAGE IN A STRIKE
AGAINST EMPLOYER A FOR THE PURPOSE OF FORCING THAT EMPLOYER TO CEASE
DOING BUSINESS WITH EMPLOYER B. SIMILARLY IT WOULD NOT BE LAWFUL FOR A
UNION TO BOYCOTT EMPLOYER A BECAUSE EMPLOYER A USES OR OTHERWISE DEALS
IN THE GOODS OF, OR DOES BUSINESS WITH, EMPLOYER B."  H.R. REP. NO.
510, 80TH CONG., 1ST SESS. 43.  FN15    AT THE SAME TIME THAT SECS. 7
AND 13  FN16  SAFEGUARD COLLECTIVE BARGAINING, CONCERTED ACTIVITIES AND
STRIKES BETWEEN THE PRIMARY PARTIES TO A LABOR DISPUTE, SEC. 8(B)(4)
RESTRICTS A LABOR ORGANIZATION AND ITS AGENTS IN THE USE OF ECONOMIC
PRESSURE WHERE AN OBJECT OF IT IS TO FORCE AN EMPLOYER OR OTHER PERSON
TO BOYCOTT SOMEONE ELSE. 

A. WE MUST FIRST DETERMINE WHETHER THE STRIKE IN THIS CASE HAD A
PROSCRIBED OBJECT.  THE CONDUCT WHICH THE BOARD HERE CONDEMNED IS
READILY DISTINGUISHABLE FROM THAT WHICH IT DECLINED TO CONDEMN IN THE
RICE MILLING CASE, ANTE, P. 665.  THERE THE ACCUSED UNION SOUGHT MERELY
TO OBTAIN ITS OWN RECOGNITION BY THE OPERATOR OF A MILL, AND THE
UNION'S PICKETS NEAR THE MILL SOUGHT TO INFLUENCE TWO EMPLOYEES OF A
CUSTOMER OF THE MILL NOT TO CROSS THE PICKET LINE.  IN THAT CASE WE
SUPPORTED THE BOARD IN ITS CONCLUSION THAT SUCH CONDUCT WAS NO MORE
THAN WAS TRADITIONAL AND PERMISSIBLE IN A PRIMARY STRIKE.  THE UNION
DID NOT ENGAGE IN A STRIKE AGAINST THE CUSTOMER.  IT DID NOT ENCOURAGE
CONCERTED ACTION BY THE CUSTOMER'S EMPLOYEES TO FORCE THE CUSTOMER TO
BOYCOTT THE MILL.  IT DID NOT COMMIT ANY UNFAIR LABOR PRACTICE
PROSCRIBED BY SEC. 8(B)(4). 

IN THE BACKGROUND OF THE INSTANT CASE THERE WAS A LONG-STANDING LABOR
DISPUTE BETWEEN THE COUNCIL AND GOULD & PREISNER DUE TO THE LATTER'S
PRACTICE OF EMPLOYING NONUNION WORKMEN ON CONSTRUCTION JOBS IN DENVER. 
THE RESPONDENT LABOR ORGANIZATIONS CONTEND THAT THEY ENGAGED IN A
PRIMARY DISPUTE WITH DOOSE & LINTNER ALONE, AND THAT THEY SOUGHT SIMPLY
TO FORCE DOOSE & LINTNER TO MAKE THE PROJECT AN ALL-UNION JOB.  IF
THERE HAD BEEN NO CONTRACT BETWEEN DOOSE & LINTNER AND GOULD & PREISNER
THERE MIGHT BE SUBSTANCE IN THEIR CONTENTION THAT THE DISPUTE INVOLVED
NO BOYCOTT.  IF, FOR EXAMPLE, DOOSE & LINTNER HAD BEEN DOING ALL THE
ELECTRICAL WORK ON THIS PROJECT THROUGH ITS OWN NONUNION EMPLOYEES, IT
COULD HAVE REPLACED THEM WITH UNION MEN AND THUS DISPOSED OF THE
DISPUTE.  HOWEVER, THE EXISTENCE OF THE GOULD & PREISNER SUBCONTRACT
PRESENTED A MATERIALLY DIFFERENT SITUATION.  THE NONUNION EMPLOYEES
WERE EMPLOYEES OF GOULD & PREISNER.  THE ONLY WAY THAT RESPONDENTS
COULD ATTAIN THEIR PURPOSE WAS TO FORCE GOULD & PREISNER ITSELF OFF THE
JOB.  THIS, IN TURN, COULD BE DONE ONLY THROUGH DOOSE & LINTNER'S
TERMINATION OF GOULD & PREISNER'S SUBCONTRACT.  THE RESULT IS THAT THE
COUNCIL'S STRIKE, IN ORDER TO ATTAIN ITS ULTIMATE PURPOSE, MUST HAVE
INCLUDED AMONG ITS OBJECTS THAT OF FORCING DOOSE & LINTNER TO TERMINATE
THAT SUBCONTRACT.  ON THAT POINT, THE BOARD ADOPTED THE FOLLOWING
FINDING: 

"THAT AN OBJECT, IF NOT THE ONLY OBJECT, OF WHAT TRANSPIRED WITH
RESPECT TO  ...  DOOSE & LINTNER WAS TO FORCE OR REQUIRE THEM TO CEASE
DOING BUSINESS WITH GOULD & PREISNER SEEMS SCARCELY OPEN TO QUESTION,
IN VIEW OF ALL OF THE FACTS.  AND IT IS CLEAR AT LEAST AS TO DOOSE &
LINTNER, THAT THAT PURPOSE WAS ACHIEVED."  82 N.L.R.B. AT 1212.  FN17 

WE ACCEPT THIS CRUCIAL FINDING.  IT WAS AN OBJECT OF THE STRIKE TO
FORCE THE CONTRACTOR TO TERMINATE GOULD & PREISNER'S SUBCONTRACT. 

B. WE HOLD ALSO THAT A STRIKE WITH SUCH AN OBJECT WAS AN UNFAIR LABOR
PRACTICE WITHIN THE MEANING OF SEC. 8(B)(4)(A). 

IT IS NOT NECESSARY TO FIND THAT THE SOLE OBJECT OF THE STRIKE WAS
THAT OF FORCING THE CONTRACTOR TO TERMINATE THE SUBCONTRACTOR'S
CONTRACT.  THIS IS EMPHASIZED IN THE LEGISLATIVE HISTORY OF THE
WORKERS UNION, 178 F.2D 584, 586. 

WE AGREE WITH THE BOARD ALSO IN ITS CONCLUSION THAT THE FACT THAT THE
CONTRACTOR AND SUBCONTRACTOR WERE ENGAGED ON THE SAME CONSTRUCTION
PROJECT, AND THAT THE CONTRACTOR HAD SOME SUPERVISION OVER THE
SUBCONTRACTOR'S WORK, DID NOT ELIMINATE THE STATUS OF EACH AS AN
INDEPENDENT CONTRACTOR OR MAKE THE EMPLOYEES OF ONE THE EMPLOYEES OF
THE OTHER.  THE BUSINESS RELATIONSHIP BETWEEN INDEPENDENT CONTRACTORS
IS TOO WELL ESTABLISHED IN THE LAW TO BE OVERRIDDEN WITHOUT CLEAR
LANGUAGE DOING SO.  THE BOARD FOUND THAT THE RELATIONSHIP BETWEEN DOOSE
& LINTNER AND GOULD & PREISNER WAS ONE OF "DOING BUSINESS" AND WE FIND
NO ADEQUATE REASON FOR UPSETTING THAT CONCLUSION.  FN19 

FINALLY, SEC. 8(C)  FN20  SAFEGUARDING FREEDOM OF SPEECH HAS NO
SIGNIFICANT APPLICATION TO THE PICKET'S PLACARD IN THIS CASE.  SECTION
8(C) DOES NOT APPLY TO A MERE SIGNAL BY A LABOR ORGANIZATION TO ITS
MEMBERS, OR TO THE MEMBERS OF ITS AFFILIATES, TO ENGAGE IN AN UNFAIR
LABOR PRACTICE SUCH AS A STRIKE PROSCRIBED BY SEC. 8(B)(4)(A).  THAT
THE PLACARD WAS MERELY SUCH A SIGNAL, TANTAMOUNT TO A DIRECTION TO
STRIKE, WAS FOUND BY THE BOARD. 

"  ...  THE ISSUES IN THIS CASE TURN UPON ACTS BY LABOR ORGANIZATIONS
WHICH ARE TANTAMOUNT TO DIRECTIONS AND INSTRUCTIONS TO THEIR MEMBERS TO
ENGAGE IN STRIKE ACTION.  THE PROTECTION AFFORDED BY SECTION 8(C) OF
THE ACT TO THE EXPRESSION OF 'ANY VIEWS, ARGUMENT OR OPINION' DOES NOT
PERTAIN WHERE, AS HERE, THE ISSUES RAISED UNDER SECTION 8(B)(4)(A) TURN
ON OFFICIAL DIRECTIONS OR INSTRUCTIONS TO A UNION'S OWN MEMBERS."  82
N.L.R.B. AT 1213.  FN21 

THE FURTHER CONCLUSION THAT SEC. 8(C) DOES NOT IMMUNIZE ACTION
AGAINST THE SPECIFIC PROVISIONS OF SEC. 8(B)(4)(A) HAS BEEN ANNOUNCED
IN OTHER CASES.  SEE NO. 108, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS V. LABOR BOARD, POST, P. 694.  FN22 

NOT ONLY ARE THE FINDINGS OF THE BOARD CONCLUSIVE WITH RESPECT TO
QUESTIONS OF FACT IN THIS FIELD WHEN SUPPORTED BY SUBSTANTIAL EVIDENCE
ON THE RECORD AS A WHOLE,  FN23  BUT THE BOARD'S INTERPRETATION OF THE
ACT AND THE BOARD'S APPLICATION OF IT IN DOUBTFUL SITUATIONS ARE
ENTITLED TO WEIGHT.  IN THE VIEWS OF THE BOARD AS APPLIED TO THIS CASE
WE FIND CONFORMITY WITH THE DUAL CONGRESSIONAL OBJECTIVES OF PRESERVING
THE RIGHT OF LABOR ORGANIZATIONS TO BRING PRESSURE TO BEAR ON OFFENDING
EMPLOYERS IN PRIMARY LABOR DISPUTES AND OF SHIELDING UNOFFENDING
EMPLOYERS AND OTHERS FROM PRESSURES IN CONTROVERSIES NOT THEIR OWN. 

FOR THESE REASONS WE CONCLUDE THAT THE CONDUCT OF RESPONDENTS
CONSTITUTED AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC.
8(B)(4)(A).  THE JUDGMENT OF THE COURT OF APPEALS ACCORDINGLY IS
REVERSED AND THE CASE IS REMANDED TO IT FOR PROCEDURE NOT INCONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  "SEC.  8.  ... 

"(B)  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION
OR ITS AGENTS - 

.         .         .         .         . 

"(4)  TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE EMPLOYEES OF ANY
EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF
THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS, TRANSPORT, OR OTHERWISE
HANDLE OR WORK ON ANY GOODS, ARTICLES, MATERIALS, OR COMMODITIES OR TO
PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS: (A) FORCING OR
REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO JOIN ANY LABOR OR
EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON TO CEASE USING,
SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING IN THE PRODUCTS
OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR TO CEASE DOING
BUSINESS WITH ANY OTHER PERSON; ...  " 61 STAT. 140-141, 29 U.S.C.
(SUPP. III) SEC. 158(B)(4)(A). 

FN2  DENVER BUILDING TRADES COUNCIL, 82 N.L.R.B. 1195, 1210. 

FN3  THE COUNCIL'S BY-LAWS PROVIDED IN PART:

                             "ARTICLE I-B 

"SECTION 1.  IT SHALL BE THE DUTY OF THIS COUNCIL TO STAND FOR
ABSOLUTE CLOSED SHOP CONDITIONS ON ALL JOBS IN THE CITY OF DENVER AND
JURISDICTIONAL SURROUNDINGS.... 

"SECTION 2.  THE BOARD OF BUSINESS AGENTS  ...  SHALL HAVE THE POWER
TO DECLARE A JOB UNFAIR AND REMOVE ALL MEN FROM THE JOB.  THEY SHALL
ALSO HAVE THE POWER TO PLACE THE MEN BACK ON THE JOB WHEN SATISFACTORY
ARRANGEMENTS HAVE BEEN MADE. 

"SECTION 3.  ANY CRAFT REFUSING TO LEAVE A JOB WHICH HAS BEEN
DECLARED UNFAIR OR RETURNING TO THE JOB BEFORE BEING ORDERED BACK BY
THE COUNCIL OR ITS BOARD OF AGENTS SHALL BE TRIED, AND IF FOUND GUILTY,
SHALL BE FINED THE SUM OF $25.00. 

"SECTION 4.  REFUSAL OF ANY ORGANIZATION TO PAY SAID FINE SHALL BE
FOLLOWED BY EXPULSION FROM THIS COUNCIL.  AN ORGANIZATION SO EXPELLED
SHALL PAY SAID FINE AND ONE COMPLETE BACK QUARTER DUES AND PER CAPITA
BEFORE BEING REINSTATED. 

                      "ARTICLE XI-B 

"SECTION 1.  STRIKES MUST BE CALLED BY THE COUNCIL OR THE BOARD OF
AGENTS IN CONFORMITY WITH ARTICLE I-B, SECTIONS 1-2.  WHEN STRIKES ARE
CALLED THE COUNCIL SHALL HAVE FULL JURISDICTION OVER THE SAME, AND ANY
CONTRACTOR, WHO WORKS ON A STRUCK JOB, OR EMPLOYS NON-UNION MEN TO WORK
ON A STRUCK JOB, SHALL BE DECLARED UNFAIR AND ALL UNION MEN SHALL BE
CALLED OFF FROM HIS WORK OR SHOP. 

"SECTION 2.  THE REPRESENTATIVE OF THE COUNCIL SHALL HAVE THE POWER
TO ORDER ALL STRIKES WHEN INSTRUCTED TO DO SO BY THE COUNCIL OR BOARD
OF AGENTS.  ...  ALL EMPLOYEES ON A STRUCK JOB SHALL LEAVE THE SAME
WHEN ORDERED TO DO SO BY THE COUNCIL AGENT AND REMAIN AWAY FROM THE
SAME UNTIL SUCH TIME AS A SETTLEMENT IS MADE, OR OTHERWISE ORDERED." 
82 N.L.R.B. AT 1214-1215. 

FN4  82 N.L.R.B. AT 1211. 

FN5  ORIGINALLY THE COMPLAINT WAS DIRECTED ALSO AGAINST ANOTHER UNION
AND INCLUDED INCIDENTS AT TWO OTHER CONSTRUCTION PROJECTS IN DENVER ON
WHICH GOULD & PREISNER HAD SUBCONTRACTED TO DO ELECTRICAL WORK.  THE
TRIAL EXAMINER RECOMMENDED THAT THE BOARD ISSUE A CEASE AND DESIST
ORDER BASED UPON ONE OF THOSE INCIDENTS, BUT THE BOARD DISMISSED THE
COMPLAINT AS TO ALL CONDUCT EXCEPT THAT ON THE PROJECT BEFORE US. 

FN6  UNDER SEC. 10(L), 61 STAT. 149-150, 29 U.S.C. (SUPP. III) SEC.
160(L). 

FN7  61 STAT. 148-149, 29 U.S.C. (SUPP. III) SEC. 160(F). 

FN8  FOR A COLLECTION AND REVIEW OF THE BOARD AND LOWER COURT CASES
DEALING WITH THESE AND RELATED ISSUES UNDER SEC. 8(B)(4), SEE DENNIS,
THE BOYCOTT UNDER THE TAFT-HARTLEY ACT, N.Y.U. THIRD ANNUAL CONFERENCE
ON LABOR (1950) 367-460. 

FN9  AN APPEAL TO THE COURT OF APPEALS IN THAT PROCEEDING WAS
DISMISSED BY THE BOARD WITH THAT COURT'S CONSENT. 

FN10  "(L)  WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED IN AN
UNFAIR LABOR PRACTICE WITHIN THE MEANING OF PARAGRAPH (4)(A), (B), OR
(C) OF SECTION 8(B), THE PRELIMINARY INVESTIGATION OF SUCH CHARGE SHALL
BE MADE FORTHWITH AND GIVEN PRIORITY OVER ALL OTHER CASES EXCEPT CASES
OF LIKE CHARACTER IN THE OFFICE WHERE IT IS FILED OR TO WHICH IT IS
REFERRED.  IF, AFTER SUCH INVESTIGATION, THE OFFICER OR REGIONAL
ATTORNEY TO WHOM THE MATTER MAY BE REFERRED HAS REASONABLE CAUSE TO
BELIEVE SUCH CHARGE IS TRUE AND THAT A COMPLAINT SHOULD ISSUE, HE
SHALL, ON BEHALF OF THE BOARD, PETITION ANY DISTRICT COURT OF THE
UNITED STATES (INCLUDING THE DISTRICT COURT OF THE UNITED STATES FOR
THE DISTRICT OF COLUMBIA) WITHIN ANY DISTRICT WHERE THE UNFAIR LABOR
PRACTICE IN QUESTION HAS OCCURRED, IS ALLEGED TO HAVE OCCURRED, OR
WHEREIN SUCH PERSON RESIDES OR TRANSACTS BUSINESS, FOR APPROPRIATE
INJUNCTIVE RELIEF PENDING THE FINAL ADJUDICATION OF THE BOARD WITH
RESPECT TO SUCH MATTER.  UPON THE FILING OF ANY SUCH PETITION THE
DISTRICT COURT SHALL HAVE JURISDICTION TO GRANT SUCH INJUNCTIVE RELIEF
OR TEMPORARY RESTRAINING ORDER AS IT DEEMS JUST AND PROPER,
NOTWITHSTANDING ANY OTHER PROVISION OF LAW:  ...  "  61 STAT. 149, 29
U.S.C. (SUPP. III) SEC. 160(L). 

FN11  SEE ALSO, LABOR BOARD V. LOCAL 74, UNITED BROTHERHOOD OF
CARPENTERS, 181 F.2D 126, AFF'D IN NO. 85, POST, P. 707; DENVER
BUILDING TRADES COUNCIL, 82 N.L.R.B. 93. 

FN12  "SEC.  10.  (A)  THE BOARD IS EMPOWERED  ...  TO PREVENT ANY
PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED IN SECTION 8)
AFFECTING COMMERCE.  ...  "  61 STAT. 146, 29 U.S.C. (SUPP. III) SEC.
160(A). 

"SEC. 2.  WHEN USED IN THIS ACT - 

     .         .         .        .         . 

"(6)  THE TERM 'COMMERCE' MEANS TRADE, TRAFFIC, COMMERCE,
TRANSPORTATION, OR COMMUNICATION AMONG THE SEVERAL STATES  ... 

"(7)  THE TERM 'AFFECTING COMMERCE' MEANS IN COMMERCE, OR BURDENING
OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE, OR HAVING LED OR
TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE OR
THE FREE FLOW OF COMMERCE.  ...  "  61 STAT. 137-138, 29 U.S.C. (SUPP.
III) SEC. 152(6)(7). 

FN13  49 STAT. 450, 29 U.S.C. SEC. 152(6) AND (7). 

FN14  "  ...  CONGRESS GAVE THE BOARD AUTHORITY TO PREVENT PRACTICES
'TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE
OR THE FREE FLOW OF COMMERCE.'  ...  CONGRESS THEREFORE LEFT IT TO THE
BOARD TO ASCERTAIN WHETHER PROSCRIBED PRACTICES WOULD IN PARTICULAR
SITUATIONS ADVERSELY AFFECT COMMERCE WHEN JUDGED BY THE FULL REACH OF
THE CONSTITUTIONAL POWER OF CONGRESS.  WHETHER OR NO PRACTICES MAY BE
DEEMED BY CONGRESS TO AFFECT INTERSTATE COMMERCE IS NOT TO BE
DETERMINED BY CONFINING JUDGMENT TO THE QUANTITATIVE EFFECT OF THE
ACTIVITIES IMMEDIATELY BEFORE THE BOARD.  APPROPRIATE FOR JUDGMENT IS
THE FACT THAT THE IMMEDIATE SITUATION IS REPRESENTATIVE OF MANY OTHERS
THROUGHOUT THE COUNTRY, THE TOTAL INCIDENCE OF WHICH IF LEFT UNCHECKED
MAY WELL BECOME FAR-REACHING IN ITS HARM TO COMMERCE."  POLISH ALLIANCE
V. LABOR BOARD, 322 U.S. 643, 648.  SEE ALSO, UNITED BROTHERHOOD OF
CARPENTERS V. SPERRY, 170 F.2D 863, 867-868. 

FOR THE CURRENT PRACTICE SEE MIMEOGRAPH RELEASE OF NATIONAL LABOR
RELATIONS BOARD, DATED OCTOBER 6, 1950, ENTITLED "N.L.R.B. CLARIFIES
AND DEFINES AREAS IN WHICH IT WILL AND WILL NOT EXERCISE
JURISDICTION."  SEE ALSO, HOTEL ASSN. OF ST. LOUIS, 92 N.L.R.B. 1388,
27 LRR MAN.  1243.    FN15  SEE ALSO, HEARINGS BEFORE THE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE ON S. 55 AND S.J. RES. 22, 80TH
CONG., 1ST SESS. 14, 568, 688, 983, 1614, 1814, 1838; S. REP. NO. 105,
80TH CONG., 1ST SESS. (PT. 1) 3, 22, 54, (PT. 2) 19; 93 CONG. REC.
4844, 4845, 4858. 

FN16  61 STAT. 140, 151, 29 U.S.C. (SUPP. III) SECS. 157, 163. 

FN17  THE BOARD FURTHER STATED: 

"2.  THE TRIAL EXAMINER FOUND THAT THE COUNCIL AND THE OTHER THREE
RESPONDENTS, BY PICKETING DOOSE & LINTNER'S  ...  PROJECT AS ALLEGED IN
THE COMPLAINT AND THEREBY CAUSING MEMBERS OF LOCAL UNIONS AFFILIATED
WITH THE COUNCIL TO QUIT WORK ON THAT PROJECT, WITH AN OBJECT OF
FORCING DOOSE & LINTNER TO CEASE DOING BUSINESS WITH GOULD & PREISNER,
ENGAGED IN STRIKE ACTION IN VIOLATION OF SECTION 8(B)(4)(A).  WE FIND
MERIT IN THE RESPONDENTS' EXCEPTIONS ONLY WITH RESPECT TO CARPENTERS
(NOT INVOLVED HERE), AND OTHERWISE AGREE IN SUBSTANCE WITH THE TRIAL'S
EXAMINER'S FINDING."  82 N.L.R.B. AT 1196. 

FN18  SENATOR TAFT, SPONSOR OF THE BILL, STATED IN HIS SUPPLEMENTARY
ANALYSIS OF IT AS PASSED: "SECTION 8(B)(4), RELATING TO ILLEGAL STRIKES
AND BOYCOTTS, WAS AMENDED IN CONFERENCE BY STRIKING OUT THE WORDS 'FOR
THE PURPOSE OF' AND INSERTING THE CLAUSE 'WHERE AN OBJECT THEREOF
IS.'"  93 CONG. REC. 6859. 

FN19  SEE NOTE 17, SUPRA, AND SEE ALSO: 

"WHAT THE ISSUE REALLY BOILS DOWN TO IS THIS:  DOES SECTION
8(B)(4)(A) APPLY TO NORMAL BUSINESS DEALINGS BETWEEN A CONTRACTOR AND
SUBCONTRACTOR, BOTH ENGAGED IN THE SAME GENERAL BUSINESS, WHERE BOYCOTT
PRESSURE IS APPLIED AGAINST THE SUBCONTRACTOR IN AID OF A DISPUTE WITH
THE PRINCIPAL CONTRACTOR?  CLEARLY IT DOES UNDER THE WORDING OF THE
STATUTE."  METAL POLISHERS UNION, 86 N.L.R.B. 1243, 1252. 

AND SEE LABOR BOARD V. WINE, LIQUOR & DISTILLERY WORKERS UNION, 178
F.2D 584. 

FN20  "THE EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION, OR THE
DISSEMINATION THEREOF, WHETHER IN WRITTEN, PRINTED, GRAPHIC, OR VISUAL
FORM, SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR PRACTICE
UNDER ANY OF THE PROVISIONS OF THIS ACT, IF SUCH EXPRESSION CONTAINS NO
THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT."  61 STAT. 142, 29
U.S.C. (SUPP. III) SEC. 158(C). 

FN21  "THIS STRIKE ACTION, OF WHICH THE PICKETING WAS AN INTEGRAL AND
INSEPARABLE PART, HAD THE PLANNED AND EXPECTED EFFECT OF DENYING THE
SERVICES OF ALL UNION WORKMEN TO DOOSE & LINTNER WHILE THEY CONTINUED
TO UTILIZE THE SERVICES OF GOULD & PREISNER.  YET AS SOON AS THE
ILLEGAL OBJECTIVE OF THE RESPONDENTS' STRIKE ACTION HAD BEEN ACHIEVED,
THE PICKET, THE SIGNAL TO UNION WORKMEN THAT A STRIKE WAS IN PROGRESS,
WAS REMOVED.  THEREUPON UNION WORKMEN WERE AGAIN AVAILABLE TO DOOSE &
LINTNER.  THUS THE JOINT ENTERPRISE OF THE RESPONDENTS WAS ACCOMPLISHED
WITHIN THE FRAMEWORK AND INTENT OF THE COUNCIL'S BYLAWS BUT IN
VIOLATION OF SECTION 8(B)(4)(A) OF THE ACT."  82 N.L.R.B. AT 1216.  AND
SEE REFERENCE TO THIS FINDING BY THE SAME TRIAL EXAMINER IN
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, 82 N.L.R.B. 1028,
1046, N. 55. 

FN22  "WE THEREFORE CONCLUDE THAT SECTION 8(B)(4)(A) PROHIBITS
PEACEFUL PICKETING, AS WELL AS OTHER PEACEFUL MEANS OF INDUCEMENT AND
ENCOURAGEMENT, IN FURTHERANCE OF AN OBJECTIVE PROSCRIBED THEREIN AND
THAT SECTION 8(C) DOES NOT IMMUNIZE SUCH CONDUCT."  UNITED BROTHERHOOD
OF CARPENTERS, 81 N.L.R.B. 802, 815; SEE ALSO, PP. 807-816; ENFORCEMENT
ORDER ISSUED IN LABOR BOARD V. UNITED BROTHERHOOD OF CARPENTERS, 184
F.2D 60, CERTIORARI DENIED THIS DAY AS NO. 387, POST, P. 947.  SEE
UNITED BROTHERHOOD OF CARPENTERS V. SPERRY, 170 F.2D 863, 868-869;
PRINTING SPECIALTIES UNION, 82 N.L.R.B. 271, 290; BRICKLAYERS UNION, 82
N.L.R.B. 228; LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, 82 N.L.R.B.
211. 

FN23  UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474; LABOR
BOARD V. PITTSBURGH STEAMSHIP CO., 340 U.S. 498. 

MR. JUSTICE JACKSON WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED JOINS, DISSENTING. 

THE EMPLOYMENT OF UNION AND NONUNION MEN ON THE SAME JOB IS A BASIC
PROTEST IN TRADE UNION HISTORY.  THAT WAS THE PROTEST HERE.  THE UNION
WAS NOT OUT TO DESTROY THE CONTRACTOR BECAUSE OF HIS ANTIUNION
ATTITUDE.  THE UNION WAS NOT PURSUING THE CONTRACTOR TO OTHER JOBS. 
ALL THE UNION ASKED WAS THAT UNION MEN NOT BE COMPELLED TO WORK
ALONGSIDE NONUNION MEN ON THE SAME JOB.  AS JUDGE RIFKIND STATED IN AN
ANALOGOUS CASE, "THE UNION WAS NOT EXTENDING ITS ACTIVITY TO A FRONT
REMOTE FROM THE IMMEDIATE DISPUTE BUT TO ONE INTIMATELY AND INDEED
INEXTRICABLY UNITED TO IT."  FN1 

THE PICKETING WOULD UNDOUBTEDLY HAVE BEEN LEGAL IF THERE HAD BEEN NO
SUBCONTRACTOR INVOLVED - IF THE GENERAL CONTRACTOR HAD PUT NONUNION MEN
ON THE JOB.  THE PRESENCE OF A SUBCONTRACTOR DOES NOT ALTER ONE WHIT
THE REALITIES OF THE SITUATION; THE PROTEST OF THE UNION IS PRECISELY
THE SAME.  IN EACH THE UNION WAS TRYING TO PROTECT THE JOB ON WHICH
UNION MEN WERE EMPLOYED.  IF THAT IS FORBIDDEN, THE TAFT-HARTLEY ACT
MAKES THE RIGHT TO STRIKE, GUARANTEED BY SEC. 13, DEPENDENT ON
FORTUITOUS BUSINESS ARRANGEMENTS THAT HAVE NO SIGNIFICANCE SO FAR AS
THE EVILS OF THE SECONDARY BOYCOTT ARE CONCERNED.  I WOULD GIVE SCOPE
TO BOTH SEC. 8(B)(4) AND SEC. 13 BY READING THE RESTRICTIONS OF SEC.
8(B)(4) TO REACH THE CASE WHERE AN INDUSTRIAL DISPUTE SPREADS FROM THE
JOB TO ANOTHER FRONT.  FN2 

FN1  DOUDS V. METROPOLITAN FEDERATION, 75 F.SUPP.  672, 677. 

FN2  SEE THE OPINION OF JUDGE FAHY BELOW, 87 U.S. APP. D.C. 293, 186
F.2D 326; AND THE DISSENTING OPINION OF JUDGE CLARK, INTERNATIONAL
BROTHERHOOD V. LABOR BOARD, 181 F.2D 34, 40. 
..END :



ELECTRICAL WORKERS V. LABOR BOARD, 341 U.S. 694 


NO. 108.  ARGUED FEBRUARY 26-27, 1951.  - DECIDED JUNE 4, 1951.  - 181
F.2D 34, AFFIRMED. 


BY PEACEFUL PICKETING, THE AGENT OF A LABOR ORGANIZATION INDUCED UNION
EMPLOYEES OF A CARPENTRY SUBCONTRACTOR ON A CONSTRUCTION PROJECT TO
ENGAGE IN A STRIKE IN THE COURSE OF THEIR EMPLOYMENT.  AN OBJECT OF
SUCH INDUCEMENT WAS TO FORCE THE GENERAL CONTRACTOR TO TERMINATE ITS
CONTRACT WITH THE ELECTRICAL SUBCONTRACTOR, WHO WAS EMPLOYING NONUNION
WORKMEN.  THE NATIONAL LABOR RELATIONS BOARD FOUND THAT THE LABOR
ORGANIZATION AND ITS AGENT (PETITIONERS HERE) HAD COMMITTED AN UNFAIR
LABOR PRACTICE WITHIN THE MEANING OF SEC. 8(B)(4)(A) OF THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT,
1947, AND ORDERED THEM TO CEASE AND DESIST.  HELD: THIS FINDING AND THE
ORDER ARE SUSTAINED.  SEE LABOR BOARD V. DENVER BUILDING TRADES
COUNCIL, ANTE, P. 675.  PP. 695-706. 

1.  THE ACTIONS COMPLAINED OF HAD SUFFICIENT EFFECT UPON INTERSTATE
COMMERCE TO SUSTAIN THE JURISDICTION OF THE BOARD.  P. 699. 

2.  THE FINDINGS DEMONSTRATE THAT THE PICKETING WAS DIRECTED AT THE
UNION EMPLOYEES OF THE CARPENTRY SUBCONTRACTOR TO INDUCE THEM TO STRIKE
AND THUS FORCE THE CARPENTRY SUBCONTRACTOR TO FORCE THE GENERAL
CONTRACTOR TO TERMINATE THE CONTRACT OF THE ELECTRICAL SUBCONTRACTOR. 
PP. 699-700. 

3.  IT WAS SUFFICIENT THAT AN OBJECTIVE, ALTHOUGH NOT NECESSARILY THE
ONLY OBJECTIVE, OF THE PICKETING WAS TO FORCE THE GENERAL CONTRACTOR TO
TERMINATE THE CONTRACT OF THE ELECTRICAL SUBCONTRACTOR.  P. 700. 

4.  SECTION 8(C) DOES NOT IMMUNIZE PEACEFUL PICKETING WHICH INDUCES A
SECONDARY BOYCOTT MADE UNLAWFUL BY SEC. 8(B)(4).  PP. 700-705. 

5.  THE PROHIBITION OF INDUCEMENT OR ENCOURAGEMENT OF SECONDARY
PRESSURE BY SEC. 8(B)(4)(A) CARRIES NO UNCONSTITUTIONAL ABRIDGMENT OF
FREE SPEECH.  P. 705. 

6.  THE ORDER ISSUED BY THE BOARD IN THIS CASE PROPERLY ENJOINED
PETITIONERS FROM EXERTING THIS PRESSURE UPON THE ELECTRICAL
SUBCONTRACTOR THROUGH OTHER EMPLOYERS, AS WELL AS THROUGH THE GENERAL
CONTRACTOR AND THE CARPENTRY SUBCONTRACTOR.  PP. 705-706. 

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS ET AL. V. NATIONAL
LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE NATIONAL LABOR RELATIONS BOARD FOUND THAT PETITIONERS HAD
COMMITTED AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC.
8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR
MANAGEMENT RELATIONS ACT, 1947, AND ORDERED THEM TO CEASE AND DESIST. 
82 N.L.R.B. 1028.  THE COURT OF APPEALS ORDERED ENFORCEMENT.  181 F.2D
34.  THIS COURT GRANTED CERTIORARI.  340 U.S. 902.  AFFIRMED, P. 706. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 393, LABOR BOARD V. DENVER BUILDING
TRADES COUNCIL (THE DENVER CASE), ANTE, P. 675, AND NO. 85, LOCAL 74,
UNITED BROTHERHOOD OF CARPENTERS V. LABOR BOARD (THE CHATTANOOGA CASE),
POST, P. 707. 

THE PRINCIPAL QUESTION HERE IS WHETHER A LABOR ORGANIZATION AND ITS
AGENT COMMITTED AN UNFAIR LABOR PRACTICE, WITHIN THE MEANING OF SEC.
8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 29 U.S.C.
SEC. 151, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947,  FN1
WHEN, BY PEACEFUL PICKETING, THE AGENT INDUCED EMPLOYEES OF A
SUBCONTRACTOR ON A CONSTRUCTION PROJECT TO ENGAGE IN A STRIKE IN THE
COURSE OF THEIR EMPLOYMENT, WHERE AN OBJECT OF SUCH INDUCEMENT WAS TO
FORCE THE GENERAL CONTRACTOR TO TERMINATE ITS CONTRACT WITH ANOTHER
SUBCONTRACTOR.  FOR THE REASONS HEREAFTER STATED, WE HOLD THAT AN
UNFAIR LABOR PRACTICE WAS COMMITTED. 

IN DECEMBER, 1947, THE GIORGI CONSTRUCTION COMPANY, A PARTNERSHIP
(HERE CALLED GIORGI), HAVING ITS PRINCIPAL PLACE OF BUSINESS AT PORT
CHESTER, NEW YORK, CONTRACTED TO BUILD A PRIVATE DWELLING IN GREENWICH,
CONNECTICUT.  THE CONTRACT PRICE WAS $15,200.  GIORGI DID PART OF THE
WORK WITH ITS OWN EMPLOYEES BUT SUBCONTRACTED THE ELECTRICAL WORK TO
SAMUEL LANGER AND THE CARPENTRY WORK TO NICHOLAS DELTORTO, THE
PRINCIPAL PLACE OF BUSINESS OF EACH OF WHOM WAS ALSO AT PORT CHESTER. 
LANGER'S SUBCONTRACT WAS FOR $325. 

LANGER IN THE PAST HAD EMPLOYED UNION MEN BUT, PRIOR TO THIS PROJECT,
HAD BECOME INVOLVED IN A DISPUTE WITH PETITIONER, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 501, A.F. OF L., HERE CALLED
THE ELECTRICIANS UNION, BECAUSE OF HIS EMPLOYMENT OF NONUNION MEN.  BY
THE MIDDLE OF APRIL, 1948, LANGER'S TWO ELECTRICIANS, NEITHER OF WHOM
WAS A MEMBER OF THE ELECTRICIANS UNION, HAD COMPLETED THE ROUGHING IN
OF THE ELECTRICAL WORK WHICH WAS NECESSARY BEFORE THE WALLS OF THE
HOUSE COULD BE COMPLETED.  AT THAT POINT, ON TWO DAYS WHEN NO EMPLOYEES
OF LANGER WERE PRESENT ON THE PROJECT, BUT BEFORE THE COMPLETION OF
LANGER'S SUBCONTRACT, WILLIAM PATTERSON, THE OTHER PETITIONER HEREIN,
VISITED THE PROJECT IN HIS CAPACITY OF AGENT AND BUSINESS
REPRESENTATIVE OF THE ELECTRICIANS UNION.  THE ONLY WORKMEN THEN
PRESENT WERE DELTORTO AND HIS TWO CARPENTERS, EACH OF WHOM WAS A MEMBER
OF LOCAL 543, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA,
A.F. OF L., HERE CALLED THE CARPENTERS UNION.  PATTERSON INFORMED
DELTORTO AND ONE OR BOTH OF HIS WORKMEN THAT THE ELECTRICAL WORK ON THE
JOB WAS BEING DONE BY NONUNION MEN.  DELTORTO AND HIS MEN EXPRESSED
IGNORANCE OF THAT FACT, BUT PATTERSON, ON THE SECOND DAY OF HIS VISITS,
REPEATED THE STATEMENT AND PROCEEDED TO PICKET THE PREMISES HIMSELF,
CARRYING A PLACARD WHICH READ "THIS JOB IS UNFAIR TO ORGANIZED LABOR:
I.B.E.W. 501 A.F.L."  DELTORTO AND HIS MEN THEREUPON STOPPED WORK AND
LEFT THE PROJECT.  DELTORTO PROMPTLY TELEPHONED GIORGI, THE GENERAL
CONTRACTOR, THAT HIS CARPENTERS HAD WALKED OFF THE JOB BECAUSE THE
ELECTRICAL DELEGATE HAD PICKETED IT.  PATTERSON ALSO TELEPHONED GIORGI
SAYING THAT LANGER WAS "UNFAIR" AND THAT GIORGI WOULD HAVE TO REPLACE
LANGER WITH A UNION CONTRACTOR IN ORDER TO COMPLETE THE JOB.  HE ADDED
THAT IF GIORGI DID NOT REPLACE LANGER, HE WOULD NOT RECEIVE ANY SKILLED
TRADES TO FINISH THE REST OF THE WORK. 

NO COMMUNICATION WAS HAD WITH LANGER BY EITHER OF PETITIONERS.  THE
NEXT DAY, GIORGI RECITED THESE CIRCUMSTANCES TO LANGER AND THE LATTER
RELEASED GIORGI FROM THE ELECTRICAL SUBCONTRACT, SAYING THAT HE WOULD
STEP ASIDE SO THAT A UNION SUBCONTRACTOR COULD TAKE OVER.  HE DID NO
FURTHER WORK ON THE PROJECT.  GIORGI INFORMED DELTORTO THAT THE TROUBLE
HAD BEEN STRAIGHTENED OUT, AND THE LATTER'S CARPENTERS RETURNED TO THE
PROJECT. 

ON A CHARGE FILED BY LANGER, BASED UPON THESE EVENTS, THE REGIONAL
DIRECTOR OF THE NATIONAL LABOR RELATIONS BOARD ISSUED A COMPLAINT
AGAINST THE ELECTRICIANS UNION AND PATTERSON.  IT ALLEGED THAT THEY HAD
INDUCED AND ENCOURAGED THE EMPLOYEES OF DELTORTO TO ENGAGE IN A STRIKE
OR A CONCERTED REFUSAL IN THE COURSE OF THEIR EMPLOYMENT TO PERFORM
SERVICES FOR HIM, AN OBJECT THEREOF BEING TO FORCE OR REQUIRE GIORGI TO
CEASE DOING BUSINESS WITH LANGER IN VIOLATION OF SEC. 8(B)(4)(A).  FN2 

WITH THE CONSENT OF THE PRESENT PETITIONERS, A RESTRAINING ORDER WAS
ISSUED AGAINST THEM BY THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, PURSUANT TO SEC. 10(1).  FN3 THE
COMPLAINT WAS REFERRED TO THE SAME TRIAL EXAMINER WHO HEARD THE DENVER
CASE, ANTE, P. 675.  HE DISTINGUISHED THE ACTION OF PETITIONERS FROM
THAT WHICH HE HAD FOUND IN THE DENVER CASE TO CONSTITUTE A STRIKE
SIGNAL, AND RECOMMENDED DISMISSAL OF THE COMPLAINT ON THE GROUND THAT
PETITIONERS' ACTION HERE WAS PERMISSIBLE UNDER SEC. 8(C), DESPITE THE
PROVISIONS OF SEC. 8(B)(4)(A).  THE BOARD, WITH TWO MEMBERS DISSENTING,
UPHELD ITS JURISDICTION OF THE COMPLAINT AGAINST A CLAIM THAT THE
ACTIONS COMPLAINED OF DID NOT SUFFICIENTLY AFFECT INTERSTATE COMMERCE. 
THE MAJORITY OF THE BOARD SO HOLDING THEN AFFIRMED THE RULINGS WHICH
THE EXAMINER HAD MADE DURING THE HEARINGS, ADOPTED CERTAIN OF HIS
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, ATTACHED HIS INTERMEDIATE
REPORT TO ITS DECISION, BUT DECLINED TO FOLLOW HIS RECOMMENDATION TO
DISMISS THE COMPLAINT.  THE BOARD EXPRESSLY HELD THAT SEC. 8(C) DID NOT
IMMUNIZE PETITIONERS' CONDUCT FROM THE PROSCRIPTIONS OF SEC.
8(B)(4)(A).  82 N.L.R.B. 1028.  IT ORDERED PETITIONERS TO - 

"CEASE AND DESIST FROM INDUCING OR ENCOURAGING THE EMPLOYEES OF
NICHOLAS DELTORTO OR ANY EMPLOYER, BY PICKETING OR RELATED CONDUCT, TO
ENGAGE IN A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF THEIR
EMPLOYMENT TO PERFORM ANY SERVICES, WHERE AN OBJECT THEREOF IS TO FORCE
OR REQUIRE GIORGI CONSTRUCTION CO. OR ANY OTHER EMPLOYER OR PERSON TO
CEASE DOING BUSINESS WITH SAMUEL LANGER."  ID., AT 1030. 

PETITIONERS ASKED THE UNITED STATES COURT OF APPEALS, UNDER SEC.
10(F),  FN4  TO REVIEW AND SET ASIDE THAT ORDER.  THE BOARD ANSWERED
AND ASKED ENFORCEMENT OF IT.  WITH ONE JUDGE DISSENTING, THE COURT
BELOW ORDERED ENFORCEMENT.  181 F.2D 34.  WE GRANTED CERTIORARI.  340
U.S. 902.  SEE LABOR BOARD V. DENVER BUILDING TRADES COUNCIL, ANTE, P.
675. 

1.  PETITIONERS CONTEST THE JURISDICTION OF THE BOARD ON THE GROUND
OF THE INSUFFICIENCY OF THE EFFECT OF THE ACTIONS COMPLAINED OF UPON
INTERSTATE COMMERCE.  THE FACTS, WHICH WERE FOUND IN DETAIL IN THE
INTERMEDIATE REPORT, APPROVED BY THE BOARD AND UPHELD BY THE COURT
BELOW, ARE IN OUR OPINION SUFFICIENT TO SUSTAIN THAT JURISDICTION ON
THE GROUNDS STATED IN THE DENVER CASE, ANTE, P. 675.  IN ADDITION, THE
CONTRACTOR AND BOTH SUBCONTRACTORS IN THE INSTANT CASE HAD THEIR
PRINCIPAL PLACES OF BUSINESS IN NEW YORK.  THE PERFORMANCE OF THEIR
CONTRACTUAL OBLIGATIONS ON THIS PROJECT IN CONNECTICUT ACCORDINGLY
EMPHASIZES THE INTERSTATE MOVEMENT OF THE SERVICES AND MATERIALS WHICH
THEY HERE SUPPLIED. 

2.  THE SECONDARY CHARACTER OF THE ACTIVITIES HERE COMPLAINED OF AND
THEIR OBJECTIVES ALSO COME WITHIN THE PATTERN OF THE DENVER CASE.  IN
THE INSTANT CASE, A LABOR DISPUTE HAD BEEN PENDING FOR SOME TIME
BETWEEN LANGER AND THE ELECTRICIANS UNION, BUT NO DEMANDS WERE MADE
UPON HIM DIRECTLY BY EITHER OF PETITIONERS IN CONNECTION WITH THIS
PROJECT.  THERE ARE NO FINDINGS THAT THE PICKETING WAS AIMED AT LANGER
TO FORCE HIM TO EMPLOY UNION WORKMEN ON THIS JOB.  ON THE CONTRARY, THE
FINDINGS DEMONSTRATE THAT THE PICKETING WAS DIRECTED AT DELTORTO'S
EMPLOYEES TO INDUCE THEM TO STRIKE AND THUS FORCE DELTORTO, THE
CARPENTRY SUBCONTRACTOR, TO FORCE GIORGI, THE GENERAL CONTRACTOR, TO
TERMINATE LANGER'S ELECTRICAL SUBCONTRACT. 

3.  THE DENVER CASE ALSO COVERS THE POINT THAT IT WAS SUFFICIENT THAT
AN OBJECTIVE OF THE PICKETING, ALTHOUGH NOT NECESSARILY THE ONLY
OBJECTIVE OF THE PICKETING, WAS TO FORCE GIORGI TO TERMINATE LANGER'S
UNCOMPLETED CONTRACT AND THUS CEASE DOING BUSINESS WITH HIM ON THE
PROJECT. 

4.  THE PRINCIPAL FEATURE OF THE INSTANT CASE, NOT SQUARELY COVERED
BY THE DENVER CASE, IS THAT THERE IS NO FINDING HERE THAT THE PICKETING
AND OTHER ACTIVITIES OF PETITIONERS WERE MERE SIGNALS IN STARTING AND
STOPPING A STRIKE IN ACCORDANCE WITH BY-LAWS OR OTHER CONTROLLING
PRACTICES OF THE ELECTRICIANS AND CARPENTERS UNIONS.  THE COMPLAINT
HERE IS NOT THAT PETITIONERS, LIKE THE TRADES COUNCIL IN THE DENVER
CASE, THEMSELVES ENGAGED IN OR CALLED A STRIKE OF DELTORTO'S CARPENTERS
IN ORDER TO FORCE THE GENERAL CONTRACTOR TO CEASE DOING BUSINESS WITH
THE ELECTRICAL SUBCONTRACTOR.  HERE THE COMPLAINT IS THAT PETITIONERS,
BY PEACEFUL PICKETING, RATHER THAN BY PREARRANGED SIGNAL, INDUCED OR
ENCOURAGED THE EMPLOYEES OF DELTORTO TO STRIKE (OR TO ENGAGE IN A
CONCERTED REFUSAL TO PERFORM ANY SERVICES FOR DELTORTO) IN THE COURSE
OF THEIR EMPLOYMENT TO FORCE GIORGI, THE CONTRACTOR, TO CEASE DOING
BUSINESS WITH LANGER, THE ELECTRICAL SUBCONTRACTOR. 

WHILE IN THE DENVER CASE WE HAVE HELD THAT SEC. 8(C)  FN5  HAD NO
APPLICATION TO A STRIKE SIGNAL, THERE ARE OTHER CONSIDERATIONS THAT
ENTER INTO THE DECISION HERE.  THE QUESTION HERE IS WHAT EFFECT, IF
ANY, SHALL BE GIVEN TO SEC. 8(C) IN ITS APPLICATION TO PEACEFUL
PICKETING CONDUCTED BY A LABOR ORGANIZATION OR ITS AGENTS MERELY AS AN
INDUCEMENT OR ENCOURAGEMENT OF EMPLOYEES TO ENGAGE IN A SECONDARY
BOYCOTT.  PETITIONERS CONTEND THAT SEC. 8(C) IMMUNIZES PEACEFUL
PICKETING, EVEN THOUGH THE PICKETING INDUCES A SECONDARY BOYCOTT MADE
UNLAWFUL BY SEC. 8(B)(4).  THE BOARD REACHED THE OPPOSITE CONCLUSION
AND THE COURT BELOW APPROVED THE BOARD'S ORDER AS APPLIED TO THE FACTS
OF THIS CASE WHICH IT RECOGNIZED AS AMOUNTING TO "BARE INSTIGATION" OF
THE SECONDARY BOYCOTT.  FN6  WE AGREE WITH THE BOARD. 

A. TO EXEMPT PEACEFUL PICKETING FROM THE CONDEMNATION OF SEC.
8(B)(4)(A) AS A MEANS OF BRINGING ABOUT A SECONDARY BOYCOTT IS CONTRARY
TO THE LANGUAGE AND PURPOSE OF THAT SECTION.  THE WORDS "INDUCE OR
ENCOURAGE" ARE BROAD ENOUGH TO INCLUDE IN THEM EVERY FORM OF INFLUENCE
AND PERSUASION.  FN7  THERE IS NO LEGISLATIVE HISTORY TO JUSTIFY AN
INTERPRETATION THAT CONGRESS BY THOSE TERMS HAS LIMITED ITS
PROSCRIPTION OF SECONDARY BOYCOTTING TO CASES WHERE THE MEANS OF
INDUCEMENT OR ENCOURAGEMENT AMOUNT TO A "THREAT OF REPRISAL OR FORCE OR
PROMISE OF BENEFIT."  SUCH AN INTERPRETATION WOULD GIVE MORE
SIGNIFICANCE TO THE MEANS USED THAN TO THE END SOUGHT.  IF SUCH WERE
THE CASE THERE WOULD HAVE BEEN LITTLE NEED FOR SEC. 8(B)(4) DEFINING
THE PROSCRIBED OBJECTIVES, BECAUSE THE USE OF "RESTRAINT AND COERCION"
FOR ANY PURPOSE WAS PROHIBITED IN THIS WHOLE FIELD BY SEC. 8(B)(1)(A). 

"INDUCE OR ENCOURAGE" APPEAR IN LIKE CONTEXT IN SEC. 303.  THE
ACTION PROSCRIBED BY THE TERMS OF SEC. 8(B)(4) IS MADE IN SEC. 303 THE
BASIS FOR THE RECOVERY OF DAMAGES IN A CIVIL ACTION.  BECAUSE SEC. 8(C)
IS IN TERMS LIMITED TO UNFAIR LABOR PRACTICE PROCEEDINGS AND SEC. 303
REFERS ONLY TO CIVIL ACTIONS FOR DAMAGES,  FN8  IT SEEMS CLEAR THAT
SEC. 8(C) DOES NOT APPLY TO AN ACTION UNDER SEC. 303.  THAT SECTION
DOES NOT MENTION UNFAIR LABOR PRACTICES THROUGH WHICH ALONE THE
PROVISIONS OF SEC. 8(C) CAN BECOME APPLICABLE.  IF SEC. 8(C) WERE GIVEN
THE EFFECT WHICH PETITIONERS URGE, IT WOULD LIMIT SEC. 8(B)(4)(A) SO AS
TO GIVE THE WORDS "INDUCE OR ENCOURAGE" A MEANING IN THAT SECTION
DIFFERENT THAN THEY HAVE IN SEC. 303.  WE THINK THAT THE WORDS ARE
ENTITLED TO THE SAME MEANING IN SECS. 8(B)(4) AND 303. 

B. THE INTENDED BREADTH OF THE WORDS "INDUCE OR ENCOURAGE" IN SEC.
8(B)(4)(A) IS EMPHASIZED BY THEIR CONTRAST WITH THE RESTRICTED PHRASES
USED IN OTHER PARTS OF SEC. 8(B).  FOR EXAMPLE, THE UNFAIR LABOR
PRACTICE DESCRIBED IN SEC. 8(B)(1) IS ONE "TO RESTRAIN OR COERCE"
EMPLOYEES; IN SEC. 8(B)(2) IT IS TO "CAUSE OR ATTEMPT TO CAUSE AN
EMPLOYER"; IN SEC. 8(B)(5) IT IS TO "REQUIRE OF EMPLOYEES"; AND IN SEC.
8(B)(6) IT IS TO "CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER."  THE SCOPE OF
"INDUCE" AND ESPECIALLY OF "ENCOURAGE" GOES BEYOND EACH OF THEM. 

C. TO EXEMPT PEACEFUL PICKETING FROM THE REACH OF SEC. 8(B)(4) WOULD
BE TO OPEN THE DOOR TO THE CUSTOMARY MEANS OF ENLISTING THE SUPPORT OF
EMPLOYEES TO BRING ECONOMIC PRESSURE TO BEAR ON THEIR EMPLOYER.  THE
BOARD QUICKLY RECOGNIZED THAT TO DO SO WOULD BE DESTRUCTIVE OF THE
PURPOSE OF SEC. 8(B)(4)(A).  IT SAID "TO FIND THAT PEACEFUL PICKETING
WAS NOT THEREBY PROSCRIBED WOULD BE TO IMPUTE TO CONGRESS AN
INCONGRUOUS INTENT TO PERMIT, THROUGH INDIRECTION, THE ACCOMPLISHMENT
OF AN OBJECTIVE WHICH IT FORBADE TO BE ACCOMPLISHED DIRECTLY."  UNITED
BROTHERHOOD OF CARPENTERS, 81 N.L.R.B. 802, 811.  ALSO -    "IT WAS THE
OBJECTIVE OF THE UNIONS' SECONDARY ACTIVITIES  ...  AND NOT THE QUALITY
OF THE MEANS EMPLOYED TO ACCOMPLISH THAT OBJECTIVE, WHICH WAS THE
DOMINANT FACTOR MOTIVATING CONGRESS IN ENACTING THAT PROVISION.  ...
IN THESE CIRCUMSTANCES, TO CONSTRUE SECTION 8(B)(4)(A) AS QUALIFIED BY
AMOUNT TO IMPUTING TO CONGRESS AN UNREALISTIC APPROACH TO THE
PROBLEM."  ID., AT 812. 

THE LEGISLATIVE HISTORY DOES NOT SUSTAIN A CONGRESSIONAL PURPOSE TO
OUTLAW SECONDARY BOYCOTTS UNDER SEC. 8(B)(4) AND YET IN EFFECT TO
SANCTION THEM UNDER SEC. 8(C).    D. WE FIND NO INDICATION THAT
CONGRESS THOUGHT THAT THE KIND OF PICKETING AND RELATED CONDUCT WHICH
WAS USED IN THIS CASE TO INDUCE OR ENCOURAGE A STRIKE FOR AN UNLAWFUL
OBJECT WAS ANY LESS OBJECTIONABLE THAN ENGAGING DIRECTLY IN THAT
STRIKE.  THE COURT BELOW, AFTER FINDING THAT THERE WAS "BARE
INSTIGATION" HERE RATHER THAN AN APPEAL TO REASON BY "THE EXPRESSING OF
ANY VIEWS, ARGUMENT, OR OPINION," TRACED THE DEVELOPMENT OF THE
DOCTRINE THAT HE WHO PROVOKES OR INSTIGATES A WRONG MAKES HIMSELF A
PARTY TO IT.  THAT COURT THEN REACHED THE CONCLUSION THAT IT IS "HIGHLY
UNLIKELY THAT BY SEC. 8(C) CONGRESS MEANT TO ABOLISH A DOCTRINE, SO
DEEPLY EMBEDDED IN OUR CIVIL AND CRIMINAL LAW."  181 F.2D AT 39. 

E. THE REMEDIAL FUNCTION OF SEC. 8(C) IS TO PROTECT NONCOERCIVE
SPEECH BY EMPLOYER AND LABOR ORGANIZATION ALIKE IN FURTHERANCE OF A
LAWFUL OBJECT.  IT SERVES THAT PURPOSE ADEQUATELY WITHOUT EXTENDING ITS
PROTECTION TO SPEECH OR PICKETING IN FURTHERANCE OF UNFAIR LABOR
PRACTICES SUCH AS ARE DEFINED IN SEC. 8(B)(4).  THE GENERAL TERMS OF
SEC. 8(C) APPROPRIATELY GIVE WAY TO THE SPECIFIC PROVISIONS OF SEC.
8(B)(4). 

5.  THE PROHIBITION OF INDUCEMENT OR ENCOURAGEMENT OF SECONDARY
PRESSURE BY SEC. 8(B)(4)(A) CARRIES NO UNCONSTITUTIONAL ABRIDGMENT OF
FREE SPEECH.  THE INDUCEMENT OR ENCOURAGEMENT IN THE INSTANT CASE TOOK
THE FORM OF PICKETING FOLLOWED BY A TELEPHONE CALL EMPHASIZING ITS
PURPOSE.  THE CONSTITUTIONALITY OF SEC. 8(B)(4)(A) IS HERE QUESTIONED
ONLY AS TO ITS POSSIBLE RELATION TO THE FREEDOM OF SPEECH GUARANTEED BY
THE FIRST AMENDMENT.  THIS PROVISION HAS BEEN SUSTAINED BY SEVERAL
COURTS OF APPEALS.  FN9  THE SUBSTANTIVE EVIL CONDEMNED BY CONGRESS IN
SEC. 8(B)(4) IS THE SECONDARY BOYCOTT AND WE RECENTLY HAVE RECOGNIZED
THE CONSTITUTIONAL RIGHT OF STATES TO PROSCRIBE PICKETING IN
FURTHERANCE OF COMPARABLY UNLAWFUL OBJECTIVES.  FN10  THERE IS NO
REASON WHY CONGRESS MAY NOT DO LIKEWISE. 

6.  PETITIONERS OBJECT TO THE BREADTH OF THE BOARD'S ORDER AS STATED
IN 82 N.L.R.B. AT 1030, SUPRA, PP. 698-699.  THEY CONTEND THAT ITS
LANGUAGE PROHIBITS INDUCEMENT NOT ONLY OF EMPLOYEES OF DELTORTO BUT
ALSO THE INDUCEMENT OF EMPLOYEES OF ANY OTHER EMPLOYER TO STRIKE, WHERE
AN OBJECT THEREOF IS TO FORCE GIORGI OR ANY OTHER EMPLOYER OR PERSON TO
CEASE DOING BUSINESS WITH LANGER.  TO CONFINE THE ORDER SOLELY TO
SECONDARY PRESSURE THROUGH GIORGI OR DELTORTO WOULD LEAVE LANGER AND
OTHER EMPLOYERS WHO DO BUSINESS WITH HIM EXPOSED TO THE SAME TYPE OF
PRESSURE THROUGH OTHER COMPARABLE CHANNELS.  THE ORDER PROPERLY ENJOINS
PETITIONERS FROM EXERTING THIS PRESSURE UPON LANGER, THROUGH OTHER
EMPLOYERS, AS WELL AS THROUGH GIORGI AND DELTORTO.  WE MAY WELL APPLY
HERE THE PRINCIPLE STATED IN INTERNATIONAL SALT CO. V. UNITED STATES,
332 U.S. 392, 400:  "WHEN THE PURPOSE TO RESTRAIN TRADE APPEARS FROM A
CLEAR VIOLATION OF LAW, IT IS NOT NECESSARY THAT ALL OF THE UNTRAVELED
ROADS TO THAT END BE LEFT OPEN AND THAT ONLY THE WORN ONE BE CLOSED." 
AND SEE UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 90. 

THE JUDGMENT OF THE COURT OF APPEALS ACCORDINGLY IS AFFIRMED. 

FN1  61 STAT. 140-141, 29 U.S.C. (SUPP. III) SEC. 158(B)(4)(A).  FOR
TEXT SEE LABOR BOARD V. DENVER BUILDING TRADES COUNCIL, ANTE, P. 677,
NOTE 1. 

FN2  THE COMPLAINT REFERRED ORIGINALLY NOT ONLY TO THE UNFAIR LABOR
PRACTICE HERE CONSIDERED BUT ALSO TO COERCION IN VIOLATION OF SEC.
8(B)(1)(A), AND TO THREATS OF ACTION ADDRESSED TO OTHER EMPLOYERS. 
THOSE CHARGES WERE DISMISSED BY THE BOARD AND ARE NOT BEFORE US. 

FN3  61 STAT. 149-150, 29 U.S.C. (SUPP. III) SEC. 160(L).  FOR TEXT
SEE LABOR BOARD V. DENVER BUILDING TRADES COUNCIL, ANTE, P. 682, NOTE
10. 

FN4  61 STAT. 148-149, 29 U.S.C. (SUPP. III) SEC. 160(F). 

FN5  "THE EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION, OR THE
DISSEMINATION THEREOF, WHETHER IN WRITTEN, PRINTED, GRAPHIC, OR VISUAL
FORM, SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR PRACTICE
UNDER ANY OF THE PROVISIONS OF THIS ACT, IF SUCH EXPRESSION CONTAINS NO
THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT."  61 STAT. 142, 29
U.S.C. (SUPP. III) SEC. 158(C). 

FN6  THIS ISSUE IS EXTENSIVELY REVIEWED AND DETERMINED IN FAVOR OF
THE VIEW THAT SEC. 8(C) DOES NOT IMMUNIZE OTHERWISE UNFAIR LABOR
PRACTICE AGAINST SEC. 8(B)(4)(A) IN UNITED BROTHERHOOD OF CARPENTERS,
81 N.L.R.B. 802, 807-816.  IN AFFIRMING THAT CONCLUSION THE COURT OF
APPEALS FOR THE TENTH CIRCUIT SAID: 

"THEY ESTABLISHED A PICKET AT THE BUILDING PROJECT OF KLASSEN.  AND
THEY PLACED KLASSEN ON A SO-CALLED BLACKLIST AND GAVE WIDE CIRCULATION
OF THE FACT AMONG THOSE PARTICULARLY INTERESTED IN THE BUILDING
INDUSTRY, ALL FOR THE PURPOSE OF COMPELLING KLASSEN TO CEASE DOING
BUSINESS WITH WADSWORTH.  THERE IS NOTHING IN THE LANGUAGE OR
LEGISLATIVE HISTORY OF SECTION 8(C) WHICH INDICATES PERSUASIVELY A
CONGRESSIONAL INTENT TO CREATE AN ASYLUM OF IMMUNITY FROM THE
PROSCRIPTION OF SECTION 8(B)(4)(A) FOR ACTS AND CONDUCT OF THAT KIND." 
LABOR BOARD V. UNITED BROTHERHOOD OF CARPENTERS, 184 F.2D 60, 62. 

PETITION FOR CERTIORARI WAS FILED IN THIS COURT AND ACTION ON THE
PETITION WAS WITHHELD PENDING DECISION OF THE INSTANT CASES.  THE
UNITED BROTHERHOOD OF CARPENTERS FILED A BRIEF AS AMICUS CURIAE IN
CONNECTION WITH THE HEARINGS OF THESE CASES AND THE PETITION OF
CERTIORARI IS THIS DAY BEING DENIED, POST, P. 947.  SEE ALSO, UNITED
BROTHERHOOD OF CARPENTERS V. SPERRY, 170 F.2D 863, 868-869; PRINTING
SPECIALTIES UNION, 82 N.L.R.B. 271; BRICKLAYERS UNION, 82 N.L.R.B. 228;
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, 82 N.L.R.B. 211; DENNIS,
THE BOYCOTT UNDER THE TAFT-HARTLEY ACT, N.Y.U. THIRD ANNUAL CONFERENCE
ON LABOR (1950), 367, 382-386. 

FN7  INDUCE:  "1.  TO LEAD ON; TO INFLUENCE; TO PREVAIL ON; TO MOVE
BY PERSUASION OR INFLUENCE." 

ENCOURAGE:  "1.  TO GIVE COURAGE TO; TO INSPIRE WITH COURAGE, SPIRIT,
OR HOPE; TO RAISE THE CONFIDENCE OF; TO ANIMATE; HEARTEN; ... 

"2.  TO EMBOLDEN, INCITE, OR INDUCE AS BY INSPIRATION,
RECOMMENDATION, ETC.; HENCE, TO ADVISE; ... 

"3.  TO GIVE HELP OR PATRONAGE TO, AS AN INDUSTRY; TO FOSTER; ...  "
WEBSTER'S NEW INT'L DICT., UNABRIDGED (2D ED. 1945). 

FN8  "SEC.  303.  (A)  IT SHALL BE UNLAWFUL, FOR THE PURPOSES OF THIS
LABOR ORGANIZATION TO ENGAGE IN, OR TO INDUCE OR ENCOURAGE THE
EMPLOYEES OF ANY EMPLOYER TO ENGAGE IN, A STRIKE OR A CONCERTED REFUSAL
IN THE COURSE OF THEIR EMPLOYMENT TO USE, MANUFACTURE, PROCESS,
TRANSPORT, OR OTHERWISE HANDLE OR WORK ON ANY GOODS, ARTICLES,
MATERIALS, OR COMMODITIES OR TO PERFORM ANY SERVICES, WHERE AN OBJECT
THEREOF IS - 

"(1)  FORCING OR REQUIRING ANY EMPLOYER OR SELF-EMPLOYED PERSON TO
JOIN ANY LABOR OR EMPLOYER ORGANIZATION OR ANY EMPLOYER OR OTHER PERSON
TO CEASE USING, SELLING, HANDLING, TRANSPORTING, OR OTHERWISE DEALING
IN THE PRODUCTS OF ANY OTHER PRODUCER, PROCESSOR, OR MANUFACTURER, OR
TO CEASE DOING BUSINESS WITH ANY OTHER PERSON; 

     .         .         .         .         . 

"(B)  WHOEVER SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY REASON
OF ANY VIOLATION OF SUBSECTION (A) MAY SUE THEREFOR IN ANY DISTRICT
COURT OF THE UNITED STATES SUBJECT TO THE LIMITATIONS AND PROVISIONS OF
ANY OTHER COURT HAVING JURISDICTION OF THE PARTIES, AND SHALL RECOVER
THE DAMAGES BY HIM SUSTAINED AND THE COST OF THE SUIT."  61 STAT. 158
159, 29 U.S.C. (SUPP. III) SEC. 187. 

FN9  SEE LABOR BOARD V. UNITED BROTHERHOOD OF CARPENTERS, 184 F.2D
60, 62, CERTIORARI DENIED THIS DAY AS NO. 387, POST, P. 947; LABOR
BOARD V. LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS, 181 F.2D 126, 132,
AFF'D AS NO. 85, POST, P. 707; LABOR BOARD V. WINE, LIQUOR & DISTILLERY
WORKERS UNION, 178 F.2D 584, 587-588; PRINTING SPECIALTIES UNION V. LE
BARON, 171 F.2D 331, 334-335; UNITED BROTHERHOOD OF CARPENTERS V.
SPERRY, 170 F.2D 863, 868-869.  SEE ALSO, AS TO SEC. 8(B)(4)(C), DOUDS
V. LOCAL 1250, 170 F.2D 700, 701. 

FN10  SEE BUILDING SERVICE UNION V. GAZZAM, 339 U.S. 532;
INTERNATIONAL BROTHERHOOD OF TEAMSTERS V. HANKE, 339 U.S. 470; HUGHES
V. SUPERIOR COURT, 339 U.S. 460; GIBONEY V. EMPIRE STORAGE CO., 336
U.S. 490. 

MR. JUSTICE REED, MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON WOULD
REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 
..END :



















CARPENTERS UNION V. LABOR BOARD, 341 U.S. 707 


NO. 85.  ARGUED FEBRUARY 26, 1951.  - DECIDED JUNE 4, 1951.  - 181 F.2D
126, AFFIRMED. 


ON THE DAY BEFORE THE EFFECTIVE DATE OF THE LABOR MANAGEMENT RELATIONS
ACT, 1947, AMENDING THE NATIONAL LABOR RELATIONS ACT, A UNION ORDERED
ITS MEMBERS, WHO WERE WORKING ON A DWELLING RENOVATION PROJECT, TO
STRIKE.  THEY DID SO, AND THE STRIKE CONTINUED AFTER THE EFFECTIVE DATE
OF THE AMENDMENT.  ONE OF THE OBJECTS WAS TO FORCE THE OWNER OF THE
DWELLING TO CANCEL A CONTRACT FOR THE INSTALLATION OF WALL AND FLOOR
COVERINGS BY A MERCHANT USING NONUNION WORKMEN IN THEIR INSTALLATION. 
THE NATIONAL LABOR RELATIONS BOARD FOUND THAT THE UNION AND ITS AGENT
(PETITIONERS HERE) HAD ENGAGED IN AN UNFAIR LABOR PRACTICE WITHIN THE
MEANING OF SEC. 8(B)(4)(A) OF THE ACT AND ORDERED THEM TO CEASE AND
DESIST.  HELD:  ITS FINDING AND ORDER ARE SUSTAINED.  PP. 708-715. 

1.  ON THE RECORD IN THIS CASE, THE ACTIONS COMPLAINED OF HAD
SUFFICIENT EFFECT ON INTERSTATE COMMERCE TO SUSTAIN THE BOARD'S
JURISDICTION.  P. 712. 

2.  SECTION 8(C) IS NOT APPLICABLE.  PP. 712-713. 

3.  IT IS ENOUGH THAT ONE OF THE OBJECTS OF THE ACTION COMPLAINED OF
WAS TO FORCE THE OWNER OF THE DWELLING TO CANCEL THE MERCHANT'S
CONTRACT; AND IT DOES NOT IMMUNIZE SUCH ACTION FROM SEC. 8(B)(4)(A) TO
SHOW THAT ANOTHER OBJECT WAS TO ENFORCE A RULE OF THE UNION THAT ITS
MEMBERS SHOULD NOT WORK ON A PROJECT ON WHICH NONUNION MEN WERE
EMPLOYED.  P. 713. 

4.  IT IS IMMATERIAL THAT THE STRIKE HAD ITS ORIGIN BEFORE THE
EFFECTIVE DATE OF THE AMENDED ACT, SINCE IT WAS PROLONGED AFTER THE
EFFECTIVE DATE, FOR THE SAME OBJECTIVE.  PP. 713-714. 

5.  THE CASE HAS NOT BEEN RENDERED MOOT BY THE COMPLETION OF THE
RENOVATION PROJECT.  P. 715. 

LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, A.F.
OF L., ET AL. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

THE NATIONAL LABOR RELATIONS BOARD FOUND THAT PETITIONERS HAD
COMMITTED AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC.
8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR
MANAGEMENT RELATIONS ACT, 1947, AND ORDERED THEM TO CEASE AND DESIST. 
80 N.L.R.B. 533.  THE COURT OF APPEALS ORDERED ENFORCEMENT.  181 F.2D
126.  THIS COURT GRANTED CERTIORARI.  340 U.S. 902.  AFFIRMED, P. 715. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 393, LABOR BOARD V. DENVER BUILDING
TRADES COUNCIL (THE DENVER CASE), ANTE, P. 675, AND NO. 108,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS V. LABOR BOARD (THE
GREENWICH CASE), ANTE, P. 694. 

THE PRINCIPAL QUESTION IS WHETHER, UNDER THE FOLLOWING CIRCUMSTANCES,
A UNION ENGAGED IN AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC.
8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 29 U.S.C.
SEC. 151, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947:  FN1
ON THE DAY BEFORE THE EFFECTIVE DATE OF THAT AMENDMENT, THE UNION
ORDERED ITS MEMBERS, WHO WERE WORKING ON A DWELLING RENOVATION PROJECT,
TO ENGAGE IN A STRIKE, WHERE AN OBJECT THEREOF WAS TO FORCE THE OWNER
OF THE DWELLING TO CANCEL A CONTRACT FOR THE INSTALLATION OF WALL AND
FLOOR COVERINGS; AND THEN FOR SEVERAL DAYS, ON AND AFTER THE EFFECTIVE
DATE OF THE AMENDMENT, THE STRIKE WAS CONTINUED UNDER THE SAME
CONDITIONS WHICH CREATED IT AND FOR THE SAME OBJECTIVE.  FOR THE
REASONS HEREAFTER STATED, WE HOLD THAT AN UNFAIR LABOR PRACTICE WAS
ENGAGED IN ON AND AFTER THE EFFECTIVE DATE OF THE AMENDMENT. 

FOR SOME YEARS BEFORE MARCH, 1947, IRA A. WATSON COMPANY, A RHODE
ISLAND CORPORATION (HERE CALLED WATSON'S), OPERATED A GENERAL RETAIL
STORE IN CHATTANOOGA, TENNESSEE, INCLUDING A DEPARTMENT FOR THE SALE
AND INSTALLATION OF WALL AND FLOOR COVERINGS.  SINCE THAT TIME WATSON'S
HAS OPERATED A SPECIALTY STORE DEVOTED TO THOSE ACTIVITIES.  AT ABOUT
THE SAME TIME, LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, A.F. OF L. (HERE CALLED THE UNION), AND ITS BUSINESS AGENT,
JACK HENDERSON (RESPECTIVELY THE PETITIONERS IN THE INSTANT CASE),
ASKED WATSON'S TO ENTER INTO A CLOSED-SHOP AGREEMENT WITH THE UNION
RECOGNIZING IT AS THE BARGAINING AGENT OF WATSON'S INSTALLATION
EMPLOYEES.  NONE OF ITS EMPLOYEES WERE MEMBERS OF THE UNION AND
WATSON'S DECLINED TO ENTER THE AGREEMENT.  THEREUPON, FROM THE LATTER
PART OF MARCH UNTIL ABOUT AUGUST 28, 1947, PETITIONERS MAINTAINED A
PICKET IN FRONT OF WATSON'S STORE CARRYING A PLACARD.  THIS ANNOUNCED,
OVER THE NAME OF THE UNION, THAT WATSON'S WAS "UNFAIR TO ORGANIZED
LABOR" OR LATER "THIS STORE EMPLOYS NON-UNION LABOR."  WATSON'S
SOMETIMES SOLD WALL OR FLOOR COVERINGS WITHOUT INSTALLING THEM AND, AT
OTHER TIMES, IT INSISTED UPON INSTALLING SUCH COVERINGS AS A CONDITION
OF THEIR SALE.  WHEN THE INSTALLATIONS WERE MADE BY WATSON'S, THE WORK
WAS DONE BY NONUNION MEN. 

AUGUST 7, 1947, GEORGE D. STANLEY, WHO OWNED A DWELLING NEAR
CHATTANOOGA, CONTRACTED WITH D. F. PARKER TO IMPROVE AND RENOVATE IT.
PARKER WAS TO FURNISH AND SUPERVISE THE WORKMEN AND SELECT THE
MATERIALS.  STANLEY WAS TO PAY THE WAGES OF THE WORKMEN, THE COST OF
THE MATERIALS, AND A TEN PER CENT COMMISSION TO PARKER ON BOTH.  PARKER
WAS A MEMBER OF THE UNION AND HE HIRED UNION MEMBERS TO DO THE
CARPENTRY WORK.  IF THE WALL AND FLOOR COVERINGS DESIRED BY STANLEY HAD
BEEN AVAILABLE IN CHATTANOOGA ELSEWHERE THAN AT WATSON'S, PARKER WOULD
HAVE PURCHASED THEM FROM SUCH SOURCE AND WOULD HAVE EMPLOYED UNION MEN
TO INSTALL THEM.  HOWEVER, NEITHER PARKER NOR STANLEY COULD FIND SUCH
COVERINGS IN CHATTANOOGA EXCEPT AT WATSON'S AND WATSON'S INSISTED ON
INSTALLING THEM AS A CONDITION OF THEIR SALE.  ALTHOUGH KNOWING THAT
WATSON'S WOULD USE NONUNION MEN TO MAKE THE INSTALLATIONS, STANLEY,
WITH PARKER'S IMPLIED CONSENT, CONTRACTED WITH WATSON'S FOR THE
PURCHASE AND INSTALLATION OF THE COVERINGS.  WATSON'S BEGAN ITS
INSTALLATION SUNDAY, AUGUST 17, WHEN THERE WERE NO OTHER WORKMEN
PRESENT.  MONDAY AND TUESDAY, APPARENTLY WITH PARKER'S APPROVAL, THE
INSTALLATION CONTINUED DURING REGULAR WORKING HOURS.  WEDNESDAY, TWO OF
THE UNION CARPENTERS STOPPED WORK FOR HALF AN HOUR BECAUSE OF THE
PRESENCE ON THE JOB OF THE NONUNION INSTALLATION WORKERS.  PARKER,
HOWEVER, INDUCED THE CARPENTERS TO RESUME WORK.  THIS SITUATION CAME TO
THE ATTENTION OF THE UNION AND, ON THURSDAY, AUGUST 21, HENDERSON CAME
TO THE PROJECT AND TOLD THE FOUR UNION CARPENTERS WHO WERE WORKING
THERE THAT THEY COULD NOT CONTINUE TO WORK WITH NONUNION MEN OR WHERE
NONUNION MEN WERE EMPLOYED.  AT THAT HOUR, NONE OF WATSON'S MEN WERE
PRESENT BUT THE INSTALLATION OF COVERINGS CONTRACTED FOR BY STANLEY
WITH WATSON'S HAD NOT BEEN COMPLETED.  THE UNION MEN FINISHED THEIR
DAY'S WORK BUT, IN COMPLIANCE WITH THE INSTRUCTIONS THUS ISSUED BY
PETITIONERS, DID NOT RETURN ON THE FOLLOWING DAYS.  WATSON'S MEN
RETURNED AND COMPLETED THEIR WORK BY AUGUST 28, AND THE ENTIRE
RENOVATION WAS FINISHED BY THE END OF AUGUST.  THE UNFINISHED CARPENTRY
WORK WAS DONE BY TWO OF THE FOUR UNION MEN WHO HAD BEEN ON THE JOB AND
WHO RETURNED WITHOUT THE KNOWLEDGE OR CONSENT OF PETITIONERS.  ON
AUGUST 22, 1947, SEC. 8(B)(4)(A) TOOK EFFECT.  FN2 

WATSON'S PROMPTLY FILED A CHARGE WITH THE NATIONAL LABOR RELATIONS
BOARD BASED UPON THE CONTINUANCE OF THE ABOVE STRIKE BY PETITIONERS ON
AND AFTER AUGUST 22.  THE REGIONAL DIRECTOR ISSUED A COMPLAINT CHARGING
THE UNION AND HENDERSON WITH ENGAGING IN AN UNFAIR LABOR PRACTICE AS
DEFINED IN SEC. 8(B)(4)(A).  FN3  PURSUANT TO SEC. 10(1),  FN4  THE
REGIONAL DIRECTOR PETITIONED THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE FOR INJUNCTIVE RELIEF.  THIS RELIEF WAS
DENIED ON THE GROUND THAT THE CONDUCT COMPLAINED OF TOOK PLACE BEFORE
AUGUST 22 AND WAS AT THAT TIME LAWFUL.  74 F.SUPP.  499. 

AFTER HEARINGS BEFORE AN EXAMINER, THE BOARD, WITH ONE MEMBER
DISSENTING, AFFIRMED THE RULINGS OF ITS EXAMINER, ATTACHED HIS
INTERMEDIATE REPORT TO ITS DECISION, 80 N.L.R.B. 533, 540, AND ADOPTED
HIS FINDINGS, CONCLUSIONS AND RECOMMENDATIONS WITH ADDITIONS AND
MODIFICATIONS.  IT ORDERED THE UNION AND HENDERSON TO - 

"CEASE AND DESIST FROM ENGAGING IN OR INDUCING THE MEMBERS OF LOCAL
74 TO ENGAGE IN A STRIKE OR A CONCERTED REFUSAL IN THE COURSE OF THEIR
EMPLOYMENT TO PERFORM SERVICES FOR ANY EMPLOYER, WHERE AN OBJECT
THEREOF IS TO REQUIRE ANY EMPLOYER OR OTHER PERSON TO CEASE DOING
BUSINESS WITH IRA A. WATSON, DOING BUSINESS AS WATSON'S SPECIALTY
STORE."  ID., AT 539. 

THE DISSENT WAS ON THE GROUND THAT THE EFFECT OF THE ACTIONS
COMPLAINED OF UPON INTERSTATE COMMERCE WAS SO REMOTE AND INSUBSTANTIAL
AND THE CONTROVERSY WAS SO LOCAL IN CHARACTER THAT IT WAS UNDESIRABLE
FOR THE BOARD TO EXERCISE FEDERAL POWER IN RELATION TO IT.  ID., AT
540.  ON A REVIEW UNDER SEC. 10(E),  FN5  THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT ORDERED ENFORCEMENT OF THE ORDER.  181 F.2D 126.  WE
GRANTED CERTIORARI.  340 U.S. 902.  SEE LABOR BOARD V. DENVER BUILDING
TRADES COUNCIL, ANTE, AT P. 681. 

1.  PETITIONERS CONTEST THE JURISDICTION OF THE BOARD ON THE GROUND
OF THE INSUFFICIENCY OF THE EFFECT OF THE ACTIONS COMPLAINED OF UPON
INTERSTATE COMMERCE.  WE CONCLUDE THAT THE FINDINGS IN THE INTERMEDIATE
REPORT, ADOPTED BY THE BOARD AND ACCEPTED BY THE COURT BELOW, ARE
SUFFICIENT TO SUSTAIN THE BOARD'S JURISDICTION.  DENVER CASE, ANTE, AT
PP. 683-685.  FROM MARCH TO SEPTEMBER, 1947, WATSON'S PURCHASED ABOUT
$93,000 WORTH OF GOODS.  THIRTY-THREE PERCENT WAS SHIPPED TO IT IN
INTERSTATE BUSINESS.  THIRTY PERCENT MORE HAD BEEN MANUFACTURED OUTSIDE
OF TENNESSEE.  WATSON'S SALES AND INSTALLATION JOBS CAME TO ABOUT
$100,000 OF WHICH EIGHT PERCENT REPRESENTED SALES AND INSTALLATIONS
OUTSIDE OF THE STATE.  THE BOARD ALSO REFERRED TO THE FACT THAT
WATSON'S OPERATED A SYSTEM OF 26 OR 27 RETAIL STORES IN SEVEN DIFFERENT
STATES, OF WHICH THE CHATTANOOGA STORE APPARENTLY WAS AN INTEGRAL
PART. 

2.  THE COMPLAINT WAS NOT AGAINST THE PICKETING AT WATSON'S STORE
FROM MARCH TO AUGUST 28, 1947.  SEE LABOR BOARD V. INTERNATIONAL RICE
MILLING CO., ANTE, P. 665.  THE COMPLAINT WAS DIRECTED AGAINST
PETITIONERS' EXTENSION OF THEIR ACTIVITIES TO THE STANLEY PROJECT BY
THERE ORDERING A STRIKE, OR CONCERTED CESSATION OF WORK, ON THE PART OF
STANLEY'S UNION CARPENTERS  FN6 WITH AN OBJECT OF FORCING STANLEY TO
CANCEL HIS INSTALLATION CONTRACT WITH WATSON'S.  SECTION 8(C) FN7  IS
NOT APPLICABLE.  THIS STRIKE WAS ORDERED BY HENDERSON IN PERSON.  THE
UNION AND HE BOTH ENGAGED IN AND ORDERED THE STRIKE.  THE CARPENTERS AS
INDIVIDUAL EMPLOYEES ARE NOT CHARGED WITH AN UNFAIR LABOR PRACTICE. 
THE CHARGE IS CONFINED TO THE ACTIONS OF THE LABOR ORGANIZATION AND ITS
AGENT IN ENGAGING IN, ORDERING AND CONTINUING A STRIKE FOR A PROSCRIBED
OBJECT AFTER CONGRESS HAD MADE SUCH CONDUCT AN UNFAIR LABOR PRACTICE. 

3.  AS DETERMINED IN THE DENVER CASE, IT IS ENOUGH THAT ONE OF THE
OBJECTS OF THE ACTION COMPLAINED OF WAS TO FORCE STANLEY TO CANCEL
WATSON'S CONTRACT.  IT DOES NOT IMMUNIZE SUCH ACTION FROM SEC.
8(B)(4)(A) TO SHOW THAT IT ALSO HAD AS AN OBJECT THE ENFORCEMENT OF A
RULE OF THE UNION THAT ITS MEMBERS SHOULD NOT WORK ON A PROJECT ON
WHICH NONUNION MEN WERE EMPLOYED.  FN8  THE STATUTE DID NOT REQUIRE THE
INDIVIDUAL CARPENTERS TO REMAIN ON THIS JOB.  IT DID, HOWEVER, MAKE IT
AN UNFAIR LABOR PRACTICE FOR THE UNION OR ITS AGENT TO ENGAGE IN A
STRIKE, AS THEY DID HERE, WHEN AN OBJECT OF DOING SO WAS TO FORCE THE
PROJECT OWNER TO CANCEL HIS INSTALLATION CONTRACT WITH WATSON'S. 

4.  EVEN ASSUMING THAT, IF PETITIONERS HAD ENGAGED IN SUCH A STRIKE
OR HAD INDUCED THE UNION CARPENTERS TO TAKE PART IN IT ON AND AFTER
AUGUST 22, 1947, IT WOULD HAVE BEEN AN UNFAIR LABOR PRACTICE UNDER THE
NEW AMENDMENT, PETITIONERS CONTEND THAT THEIR ACTIONS ALL TOOK PLACE
BEFORE AUGUST 22, AND THAT THEY DID NOTHING ON OR AFTER THAT DATE WHICH
IS PROSCRIBED BY SEC. 8(B)(4)(A).  FN9  THE ANSWER TURNS ON WHAT
ACTUALLY TOOK PLACE ON AND AFTER AUGUST 22.  AS TO THAT THE BOARD
CONCLUDED: 

"NOR IS IT MATERIAL  ...  THAT THE LABOR DISPUTE HAD ITS ORIGIN
BEFORE THE EFFECTIVE DATE OF THE AMENDED ACT, FOR WE ARE CONVINCED THAT
IT WAS CONTINUED AND PROLONGED AFTER THE EFFECTIVE DATE BY THE VERY
SAME FACTORS WHICH ORIGINALLY CREATED IT AND FOR THE SAME ORIGINAL
OBJECTIVE WHICH, AS FOUND ABOVE, SECTION 8(B)(4)(A) DECLARES UNLAWFUL. 
THUS, AT MATERIAL TIMES BOTH BEFORE AND AFTER THE EFFECTIVE DATE OF THE
AMENDMENTS  ...  (2) THE RESPONDENTS' (HERE PETITIONERS) STRIKE ORDER,
WHICH ADMITTEDLY WAS NEVER RESCINDED, WAS OUTSTANDING AND EFFECTIVELY
PREVENTED THE CARPENTERS FROM OFFICIALLY WORKING ON THE JOB AS LONG AS
WATSON'S MEN WERE ALSO WORKING; ...  "  80 N.L.R.B. AT 537-538.  FN10 

WE AGREE WITH THE COURT BELOW IN SUSTAINING THAT CONCLUSION.  FN11 

5.  WE HAVE CONSIDERED THE REMAINING QUESTIONS RAISED BY PETITIONERS,
BASES ON CONSTITUTIONAL OR OTHER GROUNDS, AND HAVE RESOLVED THEM IN
FAVOR OF SUSTAINING THE BOARD AND THE COURT BELOW.  THIS CASE HAS NOT
BEEN RENDERED MOOT BY THE COMPLETION OF THE RENOVATION PROJECT.  THE
COMPLAINT WAS AGAINST PETITIONERS' USE OF SECONDARY PRESSURE UPON
WATSON'S IN A MANNER PROSCRIBED BY THE STATUTE.  THE USE OF SUCH
PRESSURE ON THIS RENOVATION PROJECT WAS MERELY A SAMPLE OF WHAT MIGHT
BE REPEATED ELSEWHERE IF NOT PROHIBITED.  THE UNDERLYING DISPUTE
BETWEEN PETITIONERS AND WATSON'S HAS NOT BEEN SHOWN TO HAVE BEEN
RESOLVED. 

THE JUDGMENT OF THE COURT OF APPEALS ACCORDINGLY IS AFFIRMED. 

FN1  61 STAT. 140-141, 29 U.S.C. (SUPP. III) SEC. 158(B)(4)(A).  FOR
TEXT SEE LABOR BOARD V. DENVER BUILDING TRADES COUNCIL, ANTE, P. 677,
NOTE 1. 

FN2  THE LABOR MANAGEMENT RELATIONS ACT, 1947, WAS ENACTED INTO LAW
JUNE 23, 1947, BUT TITLE I, CONTAINING SEC. 8(B)(4)(A), TOOK EFFECT 60
DAYS LATER.  61 STAT. 152, 162, 29 U.S.C. (SUPP. III), NOTE FOLLOWING
SEC. 151. 

FN3  THE COMPLAINT ORIGINALLY ALSO CHARGED VIOLATIONS OF SEC.
8(B)(1)(A) BUT THE BOARD DISMISSED THOSE ALLEGATIONS AND THEY ARE NOT
BEFORE US. 

FN4 61 STAT. 149-150, 29 U.S.C. (SUPP. III) SEC. 160(L).  FOR TEXT
SEE LABOR BOARD V. DENVER BUILDING TRADES COUNCIL, ANTE, P. 682, NOTE
10. 

FN5  61 STAT. 147-148, 29 U.S.C. (SUPP. III) SEC. 160(E). 

FN6  THE EXAMINER EXPRESSED DOUBT AS TO WHETHER THE CARPENTERS WERE
EMPLOYEES OF PARKER OR OF STANLEY BUT DECIDED TO ASSUME THAT THEY WERE
EMPLOYEES OF STANLEY.  80 N.L.R.B. AT 544, N. 12. 

FN7  61 STAT. 142, 29 U.S.C. (SUPP. III) SEC. 158(C).  FOR TEXT SEE
THE DENVER CASE, ANTE, P. 690, NOTE 20. 

FN8  THE EXAMINER FOUND THAT HENDERSON TESTIFIED CREDIBLY THAT THIS
RULE APPLIED WHETHER OR NOT THE NONUNION MEN WERE PHYSICALLY PRESENT AT
THE MOMENT.  IT WAS ENOUGH THAT NONUNION MEN WERE EMPLOYED ON THE
PROJECT.  HENDERSON, THEREFORE, APPLIED THE RULE HERE BECAUSE, ALTHOUGH
WATSON'S MEN WERE ABSENT FROM THE PROJECT ON AUGUST 21, 1947, WATSON'S
INSTALLATION CONTRACT WAS NOT YET COMPLETE, AND IT WAS CLEAR THAT ITS
COMPLETION WOULD MEAN THE RETURN OF NONUNION MEN TO THE PROJECT. 
HENDERSON TESTIFIED ALSO THAT THE RULE APPLIED EVEN TO THE EMPLOYMENT
OF NONUNION LABOR WHICH DID NOT COME UNDER THE JURISDICTION OF LOCAL
74.  80 N.L.R.B. AT 546, 553, N. 33.    FN9  IN THE PROCEEDINGS FOR AN
INJUNCTION UNDER SEC. 10(L) THE DISTRICT COURT SO HELD.  ITS DECISION,
HOWEVER, WAS BASED UPON THE AFFIDAVITS BEFORE IT RATHER THAN UPON THE
RECORD BEFORE THE BOARD, AND ITS CONCLUSION DID NOT BIND THE BOARD IN
THE PROCEEDING ON THE MERITS.  74 F.SUPP.  499, AND SEE LABOR BOARD V.
DENVER BUILDING TRADES COUNCIL, ANTE, PP. 681-683. 

FN10  PETITIONERS GAIN NOTHING FROM SEC. 102:  "NO PROVISION OF THIS
TITLE (WHICH INCLUDES SEC. 8(B)(4)(A)) SHALL BE DEEMED TO MAKE AN
UNFAIR LABOR PRACTICE ANY ACT WHICH WAS PERFORMED PRIOR TO THE DATE OF
THE ENACTMENT OF THIS ACT (JUNE 23, 1947) WHICH DID NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE PRIOR THERETO  ...  "  61 STAT. 152, 29 U.S.C.
(SUPP. III), NOTE FOLLOWING SEC. 158. 

FN11  FOR A COMPARABLE RESULT RELATING TO A LABOR DISPUTE WHICH
COMMENCED BEFORE THE TAKING EFFECT OF THE NATIONAL LABOR RELATIONS ACT
OF 1935, SEE JEFFERY-DE WITT INSULATOR CO. V. LABOR BOARD, 91 F.2D
134. 

MR. JUSTICE REED, MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON ARE OF
THE OPINION THAT THE JUDGMENT SHOULD BE REVERSED. 
..END :



GARNER V. LOS ANGELES BOARD, 341 U.S. 716 


NO. 453.  ARGUED APRIL 25, 1951.  - DECIDED JUNE 4, 1951.  - 98 CAL.
APP.2D 493, 220 P.2D 958, AFFIRMED. 


1.  THE FEDERAL CONSTITUTION DOES NOT FORBID A MUNICIPALITY TO REQUIRE
ITS EMPLOYEES TO EXECUTE AFFIDAVITS DISCLOSING WHETHER OR NOT THEY ARE
OR EVER HAVE BEEN MEMBERS OF THE COMMUNIST PARTY OR THE COMMUNIST
POLITICAL ASSOCIATION.  P. 720. 

2.  IN 1941, THE CALIFORNIA LEGISLATURE AMENDED THE CHARTER OF THE
CITY OF LOS ANGELES SO AS TO PROVIDE, IN SUBSTANCE, THAT NO PERSON
SHALL HOLD OR RETAIN OR BE ELIGIBLE FOR ANY PUBLIC OFFICE OR EMPLOYMENT
IN THE SERVICE OF THE CITY (1) WHO ADVISES, ADVOCATES OR TEACHES THE
OVERTHROW BY FORCE OR VIOLENCE OF THE STATE OR FEDERAL GOVERNMENT OR
BELONGS TO AN ORGANIZATION WHICH DOES SO, OR (2) WHO, WITHIN THE FIVE
YEARS PRIOR TO THE EFFECTIVE DATE, HAD SO ADVISED, ADVOCATED OR TAUGHT
OR HAD BELONGED TO AN ORGANIZATION WHICH DID SO.  IN 1948, THE CITY
PASSED AN ORDINANCE REQUIRING EACH OF ITS OFFICERS AND EMPLOYEES TO
TAKE AN OATH THAT HE HAS NOT WITHIN THE FIVE YEARS PRECEDING THE
EFFECTIVE DATE OF THE ORDINANCE, DOES NOT NOW, AND WILL NOT WHILE IN
THE SERVICE OF THE CITY, ADVISE, ADVOCATE OR TEACH THE OVERTHROW BY
FORCE, VIOLENCE OR OTHER UNLAWFUL MEANS, OF THE STATE OR FEDERAL
GOVERNMENT OR BELONG TO AN ORGANIZATION WHICH DOES SO OR HAS DONE SO
WITHIN SUCH FIVE-YEAR PERIOD.  HELD:  THE ORDINANCE IS NOT A BILL OF
ATTAINDER OR EX POST FACTO LAW, NOR, AS HERE CONSTRUED, DOES IT VIOLATE
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 720-724. 

(A)  THE CHARTER AMENDMENT IS VALID UNDER THE FEDERAL CONSTITUTION TO
THE EXTENT THAT IT BARS FROM THE CITY'S PUBLIC SERVICE PERSONS WHO,
SINCE ITS ADOPTION IN 1941, ADVISE, ADVOCATE OR TEACH THE VIOLENT
OVERTHROW OF THE GOVERNMENT OR WHO ARE OR BECOME AFFILIATED WITH ANY
GROUP DOING SO, SINCE THE PROVISIONS THUS OPERATING PROSPECTIVELY ARE A
REASONABLE REGULATION TO PROTECT THE MUNICIPAL SERVICE.  THE QUESTION
OF ITS VALIDITY INSOFAR AS IT PURPORTED TO APPLY RETROSPECTIVELY FOR A
FIVE-YEAR PERIOD PRIOR TO ITS EFFECTIVE DATE IS NOT HERE INVOLVED.  PP.
720-721. 

(B)  THE ORDINANCE CLEARLY IS NOT EX POST FACTO, SINCE THE ACTIVITY
COVERED BY THE OATH HAD BEEN PROSCRIBED BY THE CHARTER IN THE SAME
TERMS, FOR THE SAME PURPOSE, AND TO THE SAME EFFECT OVER SEVEN YEARS
BEFORE, AND TWO YEARS PRIOR TO THE PERIOD COVERED BY THE OATH.  P.
721. 

(C)  THE ORDINANCE IS NOT A BILL OF ATTAINDER, SINCE NO PUNISHMENT IS
IMPOSED BY A GENERAL REGULATION WHICH MERELY PROVIDES STANDARDS OF
QUALIFICATION AND ELIGIBILITY FOR PUBLIC EMPLOYMENT.  LOVETT V. UNITED
STATES, 328 U.S. 303, DISTINGUISHED.  PP. 722-723. 

(D)  IT IS ASSUMED HERE THAT THE OATH WILL NOT BE CONSTRUED AS
AFFECTING ADVERSELY PERSONS WHO DURING THEIR AFFILIATION WITH A
PROSCRIBED ORGANIZATION WERE INNOCENT OF ITS PURPOSE, OR THOSE WHO
SEVERED THEIR RELATIONS WITH ANY SUCH ORGANIZATION WHEN ITS CHARACTER
BECAME APPARENT, OR THOSE WHO WERE AFFILIATED WITH ORGANIZATIONS WHICH
WERE NOT ENGAGED IN PROSCRIBED ACTIVITIES AT THE TIME OF THEIR
AFFILIATION; AND THAT, IF THIS INTERPRETATION OF THE OATH IS CORRECT,
THE CITY WILL GIVE THOSE PETITIONERS WHO HERETOFORE REFUSED TO TAKE THE
OATH AN OPPORTUNITY TO TAKE IT AS INTERPRETED AND RESUME THEIR
EMPLOYMENT.  AS THUS CONSTRUED, THE REQUIREMENT OF THE OATH DOES NOT
VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 723
724. 

GARNER ET AL. V. BOARD OF PUBLIC WORKS OF LOS ANGELES ET AL. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND
APPELLATE DISTRICT. 

IN A SUIT BY DISCHARGED EMPLOYEES OF A CITY FOR REINSTATEMENT AND
UNPAID SALARIES, THE STATE COURT DENIED RELIEF.  98 CAL. APP.2D 493,
220 P.2D 958.  THIS COURT GRANTED CERTIORARI.  340 U.S. 941.  AFFIRMED,
P. 724. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

IN 1941 THE CALIFORNIA LEGISLATURE AMENDED THE CHARTER OF THE CITY OF
LOS ANGELES TO PROVIDE IN PART AS FOLLOWS: 

"  ...  NO PERSON SHALL HOLD OR RETAIN OR BE ELIGIBLE FOR ANY PUBLIC
OFFICE OR EMPLOYMENT IN THE SERVICE OF THE CITY OF LOS ANGELES, IN ANY
OFFICE OR DEPARTMENT THEREOF, EITHER ELECTIVE OR APPOINTIVE, WHO HAS
WITHIN FIVE (5) YEARS PRIOR TO THE EFFECTIVE DATE OF THIS SECTION
ADVISED, ADVOCATED OR TAUGHT, OR WHO MAY, AFTER THIS SECTION BECOMES
EFFECTIVE (APRIL 28, 1941), ADVISE, ADVOCATE OR TEACH, OR WHO IS NOW OR
HAS BEEN WITHIN FIVE (5) YEARS PRIOR TO THE EFFECTIVE DATE OF THIS
MEMBER OF OR AFFILIATED WITH ANY GROUP, SOCIETY, ASSOCIATION,
ORGANIZATION OR PARTY WHICH ADVISES, ADVOCATES OR TEACHES, OR HAS,
WITHIN SAID PERIOD OF FIVE (5) YEARS, ADVISED, ADVOCATED OR TAUGHT THE
OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES
OF AMERICA OR OF THE STATE OF CALIFORNIA. 

"IN SO FAR AS THIS SECTION MAY BE HELD BY ANY COURT OF COMPETENT
JURISDICTION NOT TO BE SELF-EXECUTING, THE CITY COUNCIL IS HEREBY GIVEN
POWER AND AUTHORITY TO ADOPT APPROPRIATE LEGISLATION FOR THE PURPOSE OF
EFFECTUATING THE OBJECTS HEREOF."  CAL. STAT. 1941, C. 67. 

PURSUANT TO THE AUTHORITY THUS CONFERRED, THE CITY OF LOS ANGELES IN
1948 PASSED ORDINANCE NO. 94,004, REQUIRING EVERY PERSON WHO HELD AN
OFFICE OR POSITION IN THE SERVICE OF THE CITY TO TAKE AN OATH PRIOR TO
JANUARY 6, 1949.  IN RELEVANT PART THE OATH WAS AS FOLLOWS: 

"I FURTHER SWEAR (OR AFFIRM) THAT I DO NOT ADVISE, ADVOCATE OR TEACH,
AND HAVE NOT WITHIN THE PERIOD BEGINNING FIVE (5) YEARS PRIOR TO THE
EFFECTIVE DATE OF THE ORDINANCE REQUIRING THE MAKING OF THIS OATH OR
AFFIRMATION, ADVISED, ADVOCATED OR TAUGHT, THE OVERTHROW BY FORCE,
VIOLENCE OR OTHER UNLAWFUL MEANS, OF THE GOVERNMENT OF THE UNITED
STATES OF AMERICA OR OF THE STATE OF CALIFORNIA AND THAT I AM NOT NOW
AND HAVE NOT, WITHIN SAID PERIOD, BEEN OR BECOME A MEMBER OF OR
AFFILIATED WITH ANY GROUP, SOCIETY, ASSOCIATION, ORGANIZATION OR PARTY
WHICH ADVISES, ADVOCATES OR TEACHES, OR HAS, WITHIN SAID PERIOD,
ADVISED, ADVOCATED OR TAUGHT, THE OVERTHROW BY FORCE, VIOLENCE OR OTHER
UNLAWFUL MEANS OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA, OR OF
THE STATE OF CALIFORNIA.  I FURTHER SWEAR (OR AFFIRM) THAT I WILL NOT,
WHILE I AM IN THE SERVICE OF THE CITY OF LOS ANGELES, ADVISE, ADVOCATE
OR TEACH, OR BE OR BECOME A MEMBER OF OR AFFILIATED WITH ANY GROUP,
ASSOCIATION, SOCIETY, ORGANIZATION OR PARTY WHICH ADVISES, ADVOCATES OR
TEACHES, OR HAS WITHIN SAID PERIOD, ADVISED, ADVOCATED OR TAUGHT, THE
OVERTHROW BY FORCE, VIOLENCE OR OTHER UNLAWFUL MEANS, OF THE GOVERNMENT
OF THE UNITED STATES OF AMERICA OR OF THE STATE OF CALIFORNIA ...  " 

THE ORDINANCE ALSO REQUIRED EVERY EMPLOYEE TO EXECUTE AN AFFIDAVIT
"STATING WHETHER OR NOT HE IS OR EVER WAS A MEMBER OF THE COMMUNIST
PARTY OF THE UNITED STATES OF AMERICA OR OF THE COMMUNIST POLITICAL
ASSOCIATION, AND IF HE IS OR WAS SUCH A MEMBER, STATING THE DATES WHEN
HE BECAME, AND THE PERIODS DURING WHICH HE WAS, SUCH A MEMBER  ...  " 

ON THE FINAL DATE FOR FILING OF THE OATH AND AFFIDAVIT PETITIONERS
WERE CIVIL SERVICE EMPLOYEES OF THE CITY OF LOS ANGELES.  PETITIONERS
PACIFICO AND SCHWARTZ TOOK THE OATH BUT REFUSED TO EXECUTE THE
AFFIDAVIT.  THE REMAINING FIFTEEN PETITIONERS REFUSED TO DO EITHER. 
ALL WERE DISCHARGED FOR SUCH CAUSE, AFTER ADMINISTRATIVE HEARING, AS OF
JANUARY 6, 1949.  IN THIS ACTION THEY SUE FOR REINSTATEMENT AND UNPAID
SALARIES.  THE DISTRICT COURT OF APPEAL DENIED RELIEF.  98 CAL. APP.2D
493, 220 P.2D 958(1950).  WE GRANTED CERTIORARI, 340 U.S. 941(1951). 

PETITIONERS ATTACK THE ORDINANCE AS VIOLATIVE OF THE PROVISION OF
ART. I, SEC. 10 OF THE FEDERAL CONSTITUTION THAT "NO STATE SHALL  ...
PASS ANY BILL OF ATTAINDER, (OR) EX POST FACTO LAW  ...  " THEY ALSO
CONTEND THAT THE ORDINANCE DEPRIVES THEM OF FREEDOM OF SPEECH AND
ASSEMBLY AND OF THE RIGHT TO PETITION FOR REDRESS OF GRIEVANCES. 

PETITIONERS HAVE ASSUMED THAT THE OATH AND AFFIDAVIT PROVISIONS OF
THE ORDINANCE PRESENT SIMILAR CONSTITUTIONAL CONSIDERATIONS AND STAND
OR FALL TOGETHER.  WE THINK, HOWEVER, THAT SEPARATE DISPOSITION IS
INDICATED. 

1.  THE AFFIDAVIT RAISES THE ISSUE WHETHER THE CITY OF LOS ANGELES IS
CONSTITUTIONALLY FORBIDDEN TO REQUIRE THAT ITS EMPLOYEES DISCLOSE THEIR
PAST OR PRESENT MEMBERSHIP IN THE COMMUNIST PARTY OR THE COMMUNIST
POLITICAL ASSOCIATION.  NOT BEFORE US IS THE QUESTION WHETHER THE CITY
MAY DETERMINE THAT AN EMPLOYEE'S DISCLOSURE OF SUCH POLITICAL
AFFILIATION JUSTIFIES HIS DISCHARGE. 

WE THINK THAT A MUNICIPAL EMPLOYER IS NOT DISABLED BECAUSE IT IS AN
AGENCY OF THE STATE FROM INQUIRING OF ITS EMPLOYEES AS TO MATTERS THAT
MAY PROVE RELEVANT TO THEIR FITNESS AND SUITABILITY FOR THE PUBLIC
SERVICE.  PAST CONDUCT MAY WELL RELATE TO PRESENT FITNESS; PAST LOYALTY
MAY HAVE A REASONABLE RELATIONSHIP TO PRESENT AND FUTURE TRUST.  BOTH
ARE COMMONLY INQUIRED INTO IN DETERMINING FITNESS FOR BOTH HIGH AND LOW
POSITIONS IN PRIVATE INDUSTRY AND ARE NOT LESS RELEVANT IN PUBLIC
EMPLOYMENT.  THE AFFIDAVIT REQUIREMENT IS VALID. 

2.  IN OUR VIEW THE VALIDITY OF THE OATH TURNS UPON THE NATURE OF THE
CHARTER AMENDMENT (1941) AND THE RELATION OF THE ORDINANCE (1948) TO
THIS AMENDMENT.  IMMATERIAL HERE IS ANY OPINION WE MIGHT HAVE AS TO THE
CHARTER PROVISION INSOFAR AS IT PURPORTED TO APPLY RETROSPECTIVELY FOR
A FIVE-YEAR PERIOD PRIOR TO ITS EFFECTIVE DATE.  WE ASSUME THAT UNDER
THE FEDERAL CONSTITUTION THE CHARTER AMENDMENT IS VALID TO THE EXTENT
THAT IT BARS FROM THE CITY'S PUBLIC SERVICE PERSONS WHO, SUBSEQUENT TO
ITS ADOPTION IN 1941, ADVISE, ADVOCATE, OR TEACH THE VIOLENT OVERTHROW
OF THE GOVERNMENT OR WHO ARE OR BECOME AFFILIATED WITH ANY GROUP DOING
SO.  THE PROVISIONS OPERATING THUS PROSPECTIVELY WERE A REASONABLE
REGULATION TO PROTECT THE MUNICIPAL SERVICE BY ESTABLISHING AN
EMPLOYMENT QUALIFICATION OF LOYALTY TO THE STATE AND THE UNITED
STATES.  CF. GERENDE V. BOARD OF SUPERVISORS OF ELECTIONS, 341 U.S.
56(1951).  LIKEWISE, AS A REGULATION OF POLITICAL ACTIVITY OF MUNICIPAL
EMPLOYEES, THE AMENDMENT WAS REASONABLY DESIGNED TO PROTECT THE
INTEGRITY AND COMPETENCY OF THE SERVICE.  THIS COURT HAS HELD THAT
CONGRESS MAY REASONABLY RESTRICT THE POLITICAL ACTIVITY OF FEDERAL
CIVIL SERVICE EMPLOYEES FOR SUCH A PURPOSE, UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75, 102-103(1947), AND A STATE IS NOT WITHOUT POWER
TO DO AS MUCH. 

THE CHARTER AMENDMENT DEFINED STANDARDS OF ELIGIBILITY FOR EMPLOYEES
AND SPECIFICALLY DENIED CITY EMPLOYMENT TO THOSE PERSONS WHO THEREAFTER
SHOULD NOT COMPLY WITH THESE STANDARDS.  WHILE THE AMENDMENT DEPRIVED
NO ONE OF EMPLOYMENT WITH OR WITHOUT TRIAL, YET FROM ITS EFFECTIVE DATE
IT TERMINATED ANY PRIVILEGE TO WORK FOR THE CITY IN THE CASE OF PERSONS
WHO THEREAFTER ENGAGED IN THE ACTIVITY PROSCRIBED. 

THE ORDINANCE PROVIDED FOR ADMINISTRATIVE IMPLEMENTATION OF THE
PROVISIONS OF THE CHARTER AMENDMENT.  THE OATH IMPOSED BY THE ORDINANCE
PROSCRIBED TO EMPLOYEES ACTIVITY WHICH HAD BEEN DENIED THEM IN
IDENTICAL TERMS AND WITH IDENTICAL SANCTIONS IN THE CHARTER PROVISION
EFFECTIVE IN 1941.  THE FIVE-YEAR PERIOD PROVIDED BY THE OATH EXTENDED
BACK ONLY TO 1943. 

THE ORDINANCE WOULD BE EX POST FACTO IF IT IMPOSED PUNISHMENT FOR
PAST CONDUCT LAWFUL AT THE TIME IT WAS ENGAGED IN.  PASSING FOR THE
MOMENT THE QUESTION WHETHER SEPARATION OF PETITIONERS FROM THEIR
EMPLOYMENT MUST BE CONSIDERED AS PUNISHMENT, THE ORDINANCE CLEARLY IS
NOT EX POST FACTO.  THE ACTIVITY COVERED BY THE OATH HAD BEEN
PROSCRIBED BY THE CHARTER IN THE SAME TERMS, FOR THE SAME PURPOSE, AND
TO THE SAME EFFECT OVER SEVEN YEARS BEFORE, AND TWO YEARS PRIOR TO THE
PERIOD EMBRACED IN THE OATH.  NOT THE LAW BUT THE FACT WAS POSTERIOR. 

BILLS OF ATTAINDER ARE "LEGISLATIVE ACTS  ...  THAT APPLY EITHER TO
NAMED INDIVIDUALS OR TO EASILY ASCERTAINABLE MEMBERS OF A GROUP IN SUCH
A WAY AS TO INFLICT PUNISHMENT ON THEM WITHOUT A JUDICIAL TRIAL  ...  "
UNITED STATES V. LOVETT, 328 U.S. 303, 315(1946).  PUNISHMENT IS A
PREREQUISITE.  SEE CONCURRING OPINION IN LOVETT, SUPRA, AT 318, 324. 
WHETHER LEGISLATIVE ACTION CURTAILING A PRIVILEGE PREVIOUSLY ENJOYED
AMOUNTS TO PUNISHMENT DEPENDS UPON "THE CIRCUMSTANCES ATTENDING AND THE
CAUSES OF THE DEPRIVATION."  CUMMINGS V. MISSOURI, 4 WALL.  277,
320(1867).  WE ARE UNABLE TO CONCLUDE THAT PUNISHMENT IS IMPOSED BY A
GENERAL REGULATION WHICH MERELY PROVIDES STANDARDS OF QUALIFICATION AND
ELIGIBILITY FOR EMPLOYMENT. 

CUMMINGS V. MISSOURI, 4 WALL.  277(1867), AND EX PARTE GARLAND, 4
WALL.  333(1867), THE LEADING CASES IN THIS COURT APPLYING THE FEDERAL
CONSTITUTIONAL PROHIBITIONS AGAINST BILLS OF ATTAINDER, RECOGNIZED THAT
THE GUARANTEES AGAINST SUCH LEGISLATION WERE NOT INTENDED TO PRECLUDE
LEGISLATIVE DEFINITION OF STANDARDS OF QUALIFICATION FOR PUBLIC OR
PROFESSIONAL EMPLOYMENT.  CAREFULLY DISTINGUISHING AN INSTANCE OF
LEGISLATIVE "INFLICTION OF PUNISHMENT" FROM THE EXERCISE OF "THE POWER
OF CONGRESS TO PRESCRIBE QUALIFICATIONS," THE COURT SAID IN GARLAND'S
CASE:  "THE LEGISLATURE MAY UNDOUBTEDLY PRESCRIBE QUALIFICATIONS FOR
THE OFFICE, TO WHICH HE MUST CONFORM, AS IT MAY, WHERE IT HAS EXCLUSIVE
JURISDICTION, PRESCRIBE QUALIFICATIONS FOR THE PURSUIT OF ANY OF THE
ORDINARY AVOCATIONS OF LIFE."  4 WALL.  AT 379-380.  SEE ALSO, CUMMINGS
V. MISSOURI, SUPRA, AT 318-319.  THIS DOCTRINE WAS REAFFIRMED IN DENT
V. WEST VIRGINIA, 129 U.S. 114(1889), IN WHICH MR. JUSTICE FIELD, WHO
HAD WRITTEN THE CUMMINGS AND GARLAND OPINIONS, WROTE FOR A UNANIMOUS
COURT UPHOLDING A STATUTE ELEVATING STANDARDS OF QUALIFICATION TO
PRACTICE MEDICINE.  AND IN HAWKER V. NEW YORK, 170 U.S. 189(1898), THE
COURT UPHELD A STATUTE FORBIDDING THE PRACTICE OF MEDICINE BY ANY
PERSON WHO HAD BEEN CONVICTED OF A FELONY.  BOTH DENT AND HAWKER
DISTINGUISHED THE CUMMINGS AND GARLAND CASES AS INAPPLICABLE WHEN THE
LEGISLATURE ESTABLISHES REASONABLE QUALIFICATIONS FOR A VOCATIONAL
PURSUIT WITH THE NECESSARY EFFECT OF DISQUALIFYING SOME PERSONS
PRESENTLY ENGAGED IN IT. 

PETITIONERS RELY HEAVILY UPON UNITED STATES V. LOVETT, 328 U.S.
303(1946), IN WHICH A LEGISLATIVE ACT EFFECTIVELY SEPARATING CERTAIN
PUBLIC SERVANTS FROM THEIR POSITIONS WAS HELD TO BE A BILL OF
ATTAINDER.  UNLIKE THE PROVISIONS OF THE CHARTER AND ORDINANCE UNDER
WHICH PETITIONERS WERE REMOVED, THE STATUTE IN THE LOVETT CASE DID NOT
DECLARE GENERAL AND PROSPECTIVELY OPERATIVE STANDARDS OF QUALIFICATION
AND ELIGIBILITY FOR PUBLIC EMPLOYMENT.  RATHER, BY ITS TERMS IT
PROHIBITED ANY FURTHER PAYMENT OF COMPENSATION TO NAMED INDIVIDUAL
EMPLOYEES.  UNDER THESE CIRCUMSTANCES, VIEWED AGAINST THE LEGISLATIVE
BACKGROUND, THE STATUTE WAS HELD TO HAVE IMPOSED PENALTIES WITHOUT
JUDICIAL TRIAL. 

NOR ARE WE IMPRESSED BY THE CONTENTION THAT THE OATH DENIES DUE
PROCESS BECAUSE ITS NEGATION IS NOT LIMITED TO AFFILIATIONS WITH
ORGANIZATIONS KNOWN TO THE EMPLOYEE TO BE IN THE PROSCRIBED CLASS.  WE
HAVE NO REASON TO SUPPOSE THAT THE OATH IS OR WILL BE CONSTRUED BY THE
CITY OF LOS ANGELES OR BY CALIFORNIA COURTS AS AFFECTING ADVERSELY
THOSE PERSONS WHO DURING THEIR AFFILIATION WITH A PROSCRIBED
ORGANIZATION WERE INNOCENT OF ITS PURPOSE, OR THOSE WHO SEVERED THEIR
RELATIONS WITH ANY SUCH ORGANIZATION WHEN ITS CHARACTER BECAME
APPARENT, OR THOSE WHO WERE AFFILIATED WITH ORGANIZATIONS WHICH AT ONE
TIME OR ANOTHER DURING THE PERIOD COVERED BY THE ORDINANCE WERE ENGAGED
IN PROSCRIBED ACTIVITY BUT NOT AT THE TIME OF AFFIANT'S AFFILIATION* .
WE ASSUME THAT SCIENTER IS IMPLICIT IN EACH CLAUSE OF THE OATH.  AS THE
CITY HAS DONE NOTHING TO NEGATIVE THIS INTERPRETATION, WE TAKE FOR
GRANTED THAT THE ORDINANCE WILL BE SO READ TO AVOID RAISING DIFFICULT
CONSTITUTIONAL PROBLEMS WHICH ANY OTHER APPLICATION WOULD PRESENT.  FOX
V. WASHINGTON, 236 U.S. 273, 277(1915).  IT APPEARS FROM CORRESPONDENCE
OF RECORD BETWEEN THE CITY AND PETITIONERS THAT ALTHOUGH THE CITY
WELCOMED INQUIRY AS TO ITS CONSTRUCTION OF THE OATH, THE INTERPRETATION
UPON WHICH WE HAVE PROCEEDED MAY NOT HAVE BEEN EXPLICITLY CALLED TO THE
ATTENTION OF PETITIONERS BEFORE THEIR REFUSAL.  WE ASSUME THAT, IF OUR
INTERPRETATION OF THE OATH IS CORRECT, THE CITY OF LOS ANGELES WILL
GIVE THOSE PETITIONERS WHO HERETOFORE REFUSED TO TAKE THE OATH AN
OPPORTUNITY TO TAKE IT AS INTERPRETED AND RESUME THEIR EMPLOYMENT. 

*IN INTERPRETING LOCAL LEGISLATION PROSCRIBING AFFILIATION WITH
DEFECTIVE ORGANIZATIONS, THE SUPREME COURT OF CALIFORNIA HAS GONE
BEYOND THE LITERAL TEXT OF A STATUTE SO AS TO REQUIRE KNOWLEDGE OF THE
CHARACTER OF THE ORGANIZATION, AS OF THE TIME OF AFFILIATION, BY THE
PERSON WHOSE AFFILIATION IS IN QUESTION.  IN PEOPLE V. STEELIK, 187
CAL. 361, 203 P. 78(1921), THE COURT UPHELD A CONVICTION UNDER THE
CRIMINAL SYNDICALISM ACT OF 1919 WHICH MADE ONE GUILTY OF A FELONY WHO
"IS" A MEMBER OF ANY ONE OF A CERTAIN CLASS OF PROSCRIBED
ORGANIZATIONS.  THE INDICTMENT IN RELEVANT PART ALLEGED THAT DEFENDANTS
"ARE AND EACH OF THEM IS" A MEMBER OF A PROSCRIBED ORGANIZATION.  THE
COURT INTERPRETED THE STATUTE AS DEFINING AND THE INDICTMENT AS
CHARGING "THE OFFENSE OF CRIMINAL SYNDICALISM IN THAT HE KNOWINGLY
BELONGED" TO A PROSCRIBED ORGANIZATION.  187 CAL. AT 376, 203 P. AT
84.    THE JUDGMENT AS TO PACIFICO AND SCHWARTZ IS AFFIRMED.  THE
JUDGMENT AS TO THE REMAINING PETITIONERS IS AFFIRMED ON THE BASIS OF
THE INTERPRETATION OF THE ORDINANCE WHICH WE HAVE FELT JUSTIFIED IN
ASSUMING.  AFFIRMED. 

MR. JUSTICE FRANKFURTER, CONCURRING IN PART AND DISSENTING IN PART. 

THE CONSTITUTION DOES NOT GUARANTEE PUBLIC EMPLOYMENT.  CITY, STATE
AND NATION ARE NOT CONFINED TO MAKING PROVISIONS APPROPRIATE FOR
SECURING COMPETENT PROFESSIONAL DISCHARGE OF THE FUNCTIONS PERTAINING
TO DIVERSE GOVERNMENTAL JOBS.  THEY MAY ALSO ASSURE THEMSELVES OF
FIDELITY TO THE VERY PRESUPPOSITIONS OF OUR SCHEME OF GOVERNMENT ON THE
PART OF THOSE WHO SEEK TO SERVE IT.  NO UNIT OF GOVERNMENT CAN BE
DENIED THE RIGHT TO KEEP OUT OF ITS EMPLOY THOSE WHO SEEK TO OVERTHROW
THE GOVERNMENT BY FORCE OR VIOLENCE, OR ARE KNOWINGLY MEMBERS OF AN
ORGANIZATION ENGAGED IN SUCH ENDEAVOR.  SEE GERENDE V. BOARD OF
SUPERVISORS OF ELECTIONS, 341 U.S. 56. 

BUT IT DOES NOT AT ALL FOLLOW THAT BECAUSE THE CONSTITUTION DOES NOT
GUARANTEE A RIGHT TO PUBLIC EMPLOYMENT, A CITY OR A STATE MAY RESORT TO
ANY SCHEME FOR KEEPING PEOPLE OUT OF SUCH EMPLOYMENT.  LAW CANNOT REACH
EVERY DISCRIMINATION IN PRACTICE.  BUT DOUBTLESS UNREASONABLE
DISCRIMINATIONS, IF AVOWED IN FORMAL LAW, WOULD NOT SURVIVE
CONSTITUTIONAL CHALLENGE.  SURELY, A GOVERNMENT COULD NOT EXCLUDE FROM
PUBLIC EMPLOYMENT MEMBERS OF A MINORITY GROUP MERELY BECAUSE THEY ARE
ODIOUS TO THE MAJORITY, NOR RESTRICT SUCH EMPLOYMENT, SAY, TO
NATIVEBORN CITIZENS.  TO DESCRIBE PUBLIC EMPLOYMENT AS A PRIVILEGE DOES
NOT MEET THE PROBLEM. 

THIS LINE OF REASONING GIVES THE DIRECTION, I BELIEVE, FOR DEALING
WITH THE ISSUES BEFORE US.  A MUNICIPALITY LIKE LOS ANGELES OUGHT TO BE
ALLOWED ADEQUATE SCOPE IN SEEKING TO ELICIT INFORMATION ABOUT ITS
EMPLOYEES AND FROM THEM.  IT WOULD GIVE TO THE DUE PROCESS CLAUSE AN
UNWARRANTED POWER OF INTRUSION INTO LOCAL AFFAIRS TO HOLD THAT A CITY
MAY NOT REQUIRE ITS EMPLOYEES TO DISCLOSE WHETHER THEY HAVE BEEN
MEMBERS OF THE COMMUNIST PARTY OR THE COMMUNIST POLITICAL ASSOCIATION. 
IN THE CONTEXT OF OUR TIME, SUCH MEMBERSHIP IS SUFFICIENTLY RELEVANT TO
EFFECTIVE AND DEPENDABLE GOVERNMENT, AND TO THE CONFIDENCE OF THE
ELECTORATE IN ITS GOVERNMENT.  I THINK THE PRECISE MADISON WOULD HAVE
BEEN SURPRISED EVEN TO HEAR IT SUGGESTED THAT THE REQUIREMENT OF THIS
AFFIDAVIT WAS AN "ATTAINDER" UNDER ART. I, SEC. 10, OF THE
CONSTITUTION.  FOR REASONS OUTLINED IN THE CONCURRING OPINION IN UNITED
STATES V. LOVETT, 328 U.S. 303, 318, I CANNOT SO REGARD IT.  THIS KIND
OF INQUIRY INTO POLITICAL AFFILIATION MAY IN THE LONG RUN DO MORE HARM
THAN GOOD.  BUT THE TWO EMPLOYEES WHO WERE DISMISSED SOLELY BECAUSE
THEY REFUSED TO FILE AN AFFIDAVIT STATING WHETHER OR WHEN THEY HAD BEEN
MEMBERS OF THE COMMUNIST PARTY OR THE COMMUNIST POLITICAL ASSOCIATION
CANNOT SUCCESSFULLY APPEAL TO THE CONSTITUTION OF THE UNITED STATES. 

A VERY DIFFERENT ISSUE IS PRESENTED BY THE FIFTEEN EMPLOYEES WHO WERE
DISCHARGED BECAUSE THEY REFUSED TO TAKE THIS OATH: 

"I  ...  DO SOLEMNLY SWEAR (OR AFFIRM)  ...  THAT I  ...  HAVE NOT,
WITHIN SAID PERIOD (FROM DECEMBER 6, 1943), BEEN OR BECOME A MEMBER OF
OR AFFILIATED WITH ANY GROUP, SOCIETY, ASSOCIATION, ORGANIZATION OR
PARTY WHICH ADVISES, ADVOCATES OR TEACHES, OR HAS, WITHIN SAID PERIOD,
ADVISED, ADVOCATED OR TAUGHT, THE OVERTHROW BY FORCE, VIOLENCE OR OTHER
UNLAWFUL MEANS OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA, OR OF
THE STATE OF CALIFORNIA." 

THE VALIDITY OF AN OATH MUST BE JUDGED ON THE ASSUMPTION THAT IT WILL
BE TAKEN CONSCIENTIOUSLY.  THIS ORDINANCE DOES NOT ASK THE EMPLOYEE TO
SWEAR THAT HE "KNOWINGLY" OR "TO THE BEST OF HIS KNOWLEDGE" HAD NO
PROSCRIBED AFFILIATION.  CERTAINTY IS IMPLIED IN THE DISAVOWAL
EXACTED.  THE OATH THUS EXCLUDES FROM CITY EMPLOYMENT ALL PERSONS WHO
ARE NOT CERTAIN THAT EVERY ORGANIZATION TO WHICH THEY BELONGED OR WITH
WHICH THEY WERE AFFILIATED (WITH ALL THE UNCERTAINTIES OF THE MEANING
OF "AFFILIATED") AT ANY TIME SINCE 1943 HAS NOT SINCE THAT DATE
ADVOCATED THE OVERTHROW BY "UNLAWFUL MEANS" OF THE GOVERNMENT OF THE
UNITED STATES OR OF THE STATE OF CALIFORNIA. 

THE VICE IN THIS OATH IS THAT IT IS NOT LIMITED TO AFFILIATION WITH
ORGANIZATIONS KNOWN AT THE TIME TO HAVE ADVOCATED OVERTHROW OF
GOVERNMENT.  WE HAVE HERE A VERY DIFFERENT SITUATION FROM THAT RECENTLY
BEFORE US IN GERENDE V. BOARD OF SUPERVISORS, 341 U.S. 56.  THERE THE
ATTORNEY GENERAL OF MARYLAND ASSURED THIS COURT THAT HE WOULD ADVISE
THE APPROPRIATE AUTHORITIES TO ACCEPT AS THE OATH REQUIRED BY STATE LAW
FROM A CANDIDATE FOR OFFICE, AN AFFIRMATION THAT HE IS NOT ENGAGED IN
THE ATTEMPT TO OVERTHROW THE GOVERNMENT BY FORCE OR VIOLENCE AND THAT
HE IS NOT KNOWINGLY A MEMBER OF AN ORGANIZATION ENGAGED IN SUCH AN
ATTEMPT.  THE ATTORNEY GENERAL DID NOT GIVE THIS ASSURANCE AS A MATTER
OF PERSONAL RELAXATION OF A LEGAL REQUIREMENT.  HE WAS ABLE TO GIVE IT
ON THE BASIS OF THE INTERPRETATION THAT THE COURT OF APPEALS OF
MARYLAND, THE HIGHEST COURT OF THAT STATE, HAD PLACED UPON THE
LEGISLATION.  NO SUCH ASSURANCE WAS REMOTELY SUGGESTED ON BEHALF OF LOS
ANGELES.  NATURALLY NOT.  NOTHING IN THE DECISIONS UNDER REVIEW WOULD
WARRANT SUCH RESTRICTED INTERPRETATION OF THE ASSAILED ORDINANCE* .  TO
FIND SCIENTER IMPLIED IN A CRIMINAL STATUTE IS THE OBVIOUS WAY OF
READING SUCH A STATUTE, FOR GUILTY KNOWLEDGE IS THE NORMAL INGREDIENT
OF CRIMINAL RESPONSIBILITY.  THE ORDINANCE BEFORE US EXACTS AN OATH AS
A CONDITION OF EMPLOYMENT; IT DOES NOT DEFINE A CRIME.  IT IS CERTAINLY
NOT OPEN TO THIS COURT TO REWRITE THE OATH REQUIRED BY LOS ANGELES OF
ITS EMPLOYEES, AFTER THE OATH AS WRITTEN HAS BEEN SUSTAINED BY THE
CALIFORNIA COURTS. 

*NOTHING IN THE DECISION OR OPINION OF THE SUPREME COURT OF
CALIFORNIA IN PEOPLE V. STEELIK, 187 CAL. 361, 203 P. 78, INDICATES
THAT THE COURTS OF CALIFORNIA WOULD AT THEIR OWN INSTANCE READ INTO THE
LOS ANGELES OATH A LIMITATION WHICH IS NOT THERE EXPRESSED.  IN THE
STEELIK CASE THE COURT WAS CONSIDERING A STATUTE WHICH PROVIDED THAT
"ANY PERSON WHO  ...  (ORGANIZES) OF ASSISTS IN ORGANIZING, OR IS OR
KNOWINGLY BECOMES A MEMBER OF, ANY ORGANIZATION" TEACHING CRIMINAL
SYNDICALISM IS GUILTY OF A FELONY.  CAL. STAT. 1919, C. 188, SEC. 2. 
THE COURT HELD ONLY THAT THE WORD "KNOWINGLY" QUALIFIED THE WORD "IS"
IN ADDITION TO THE WORD "BECOMES." 

IF THIS ORDINANCE IS SUSTAINED, SANCTION IS GIVEN TO LIKE OATHS FOR
EVERY GOVERNMENTAL UNIT IN THE UNITED STATES.  NOT ONLY DOES THE OATH
MAKE AN IRRATIONAL DEMAND.  IT IS BOUND TO OPERATE AS A REAL DETERRENT
TO PEOPLE CONTEMPLATING EVEN INNOCENT ASSOCIATIONS.  HOW CAN ANYONE BE
SURE THAT AN ORGANIZATION WITH WHICH HE AFFILIATES WILL NOT AT SOME
TIME IN THE FUTURE BE FOUND BY A STATE OR NATIONAL OFFICIAL TO ADVOCATE
OVERTHROW OF GOVERNMENT BY "UNLAWFUL MEANS"?  ALL BUT THE HARDIEST MAY
WELL HESITATE TO JOIN ORGANIZATIONS IF THEY KNOW THAT BY SUCH A
PROSCRIPTION THEY WILL BE PERMANENTLY DISQUALIFIED FROM PUBLIC
EMPLOYMENT.  THESE ARE CONSIDERATIONS THAT CUT DEEP INTO THE TRADITIONS
OF OUR PEOPLE.  GREGARIOUSNESS AND FRIENDLINESS ARE AMONG THE MOST
CHARACTERISTIC OF AMERICAN ATTITUDES.  THROUGHOUT OUR HISTORY THEY HAVE
BEEN MANIFESTED IN "JOINING."  SEE ARTHUR M. SCHLESINGER, SR.,
BIOGRAPHY OF A NATION OF JOINERS, PUBLISHED IN 50 AMERICAN HISTORICAL
REVIEW 1, REPRINTED IN SCHLESINGER, PATHS TO THE PRESENT, 23. 

GIVING FULL SCOPE TO THE SELECTIVE PROCESSES OPEN TO OUR
MUNICIPALITIES AND STATES IN SECURING COMPETENT AND RELIABLE
FUNCTIONARIES FREE FROM ALLEGIANCE TO ANY ALIEN POLITICAL AUTHORITY, I
DO NOT THINK THAT IT IS CONSONANT WITH THE DUE PROCESS CLAUSE FOR MEN
TO BE ASKED, ON PAIN OF GIVING UP PUBLIC EMPLOYMENT, TO SWEAR TO
SOMETHING THEY CANNOT BE EXPECTED TO KNOW.  SUCH A DEMAND IS AT WAR
WITH INDIVIDUAL INTEGRITY; IT CAN NO MORE BE JUSTIFIED THAN THE INQUIRY
INTO BELIEF WHICH MR. JUSTICE BLACK, MR. JUSTICE JACKSON AND I DEEMED
INVALID IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382. 

THE NEEDS OF SECURITY DO NOT REQUIRE SUCH CURBS ON WHAT MAY WELL BE
INNOCUOUS FEELINGS AND ASSOCIATIONS.  SUCH CURBS ARE INDEED SELF
DEFEATING.  THEY ARE NOT MERELY UNJUSTIFIABLE RESTRAINTS ON
INDIVIDUALS.  THEY ARE NOT MERELY PRODUCTIVE OF AN ATMOSPHERE OF
REPRESSION UNCONGENIAL TO THE SPIRITUAL VITALITY OF A DEMOCRATIC
SOCIETY.  THE INHIBITIONS WHICH THEY ENGENDER ARE HOSTILE TO THE BEST
CONDITIONS FOR SECURING A HIGH-MINDED AND HIGH-SPIRITED PUBLIC
SERVICE. 

IT IS NOT FOR US TO WRITE THE OATH THAT LOS ANGELES MAY EXACT.  AND
SO AS TO THE FIFTEEN EMPLOYEES I THINK THE CASE SHOULD GO BACK TO THE
STATE COURT, WITH INSTRUCTIONS THAT THESE PETITIONERS BE REINSTATED
UNLESS THEY REFUSE TO TAKE AN OATH OR AFFIRMATION WITHIN THE SCOPE
INDICATED IN THIS OPINION. 

MR. JUSTICE BURTON, DISSENTING IN PART AND CONCURRING IN PART. 

                   I. 

I CANNOT AGREE THAT UNDER OUR DECISIONS THE OATH IS VALID.  UNITED
STATES V. LOVETT, 328 U.S. 303; EX PARTE GARLAND, 4 WALL.  333;
CUMMINGS V. MISSOURI, 4 WALL.  277.  THE OATH IS SO FRAMED AS TO
OPERATE RETROSPECTIVELY AS A PERPETUAL BAR TO THOSE EMPLOYEES WHO HELD
CERTAIN VIEWS AT ANY TIME SINCE A DATE FIVE YEARS PRECEDING THE
EFFECTIVE DATE OF THE ORDINANCE.  IT LEAVES NO ROOM FOR A CHANGE OF
HEART.  IT CALLS FOR MORE THAN A PROFESSION OF PRESENT LOYALTY OR
PROMISE OF FUTURE ATTACHMENT.  IT IS NOT LIMITED IN RETROSPECT TO ANY
PERIOD MEASURED BY REASONABLE RELATION TO THE PRESENT.  IN TIME THIS
ORDINANCE WILL AMOUNT TO THE REQUIREMENT OF AN OATH THAT THE AFFIANT
HAS NEVER DONE ANY OF THE PROSCRIBED ACTS.  CF. GERENDE V. BOARD OF
SUPERVISORS, 341 U.S. 56; AMERICAN COMMUNICATIONS ASSN, V. DOUDS, 339
U.S. 382, 413-414. 

THE OATH IS NOT SAVED BY THE FACT THAT IT REACHES BACK ONLY TO
DECEMBER 6, 1943, AND THAT CITY EMPLOYEES HAVE BEEN FORBIDDEN SINCE
APRIL 28, 1941, UNDER SEC. 432 OF THE LOS ANGELES CHARTER, TO ADVISE,
TEACH OR ADVOCATE THE VIOLENT OVERTHROW OF THE GOVERNMENT.  SEE THE
LOVETT, GARLAND AND CUMMINGS CASES, SUPRA.

             II. 

I AGREE WITH THE COURT THAT THE JUDGMENT SHOULD BE AFFIRMED AS TO
PETITIONERS PACIFICO AND SCHWARTZ.  THEY EXECUTED THE OATH BUT REFUSED
TO SIGN AN AFFIDAVIT CALLING FOR INFORMATION AS TO THEIR PAST OR
PRESENT MEMBERSHIP IN THE COMMUNIST PARTY OR THE COMMUNIST POLITICAL
ASSOCIATION.  SUCH REFUSAL DOES NOT NOW PRESENT THE QUESTION OF WHETHER
THE CONSTITUTION PERMITS THE CITY TO DISCHARGE THEM FROM MUNICIPAL
EMPLOYMENT ON THE BASIS OF INFORMATION IN THEIR AFFIDAVITS.  WE HAVE
BEFORE US ONLY THE QUESTION OF WHETHER MUNICIPAL EMPLOYEES MAY BE
REQUIRED TO GIVE TO THEIR EMPLOYER FACTUAL INFORMATION WHICH IS
RELEVANT TO A DETERMINATION OF THEIR PRESENT LOYALTY AND SUITABILITY
FOR PUBLIC SERVICE.  SUCH LOYALTY AND SUITABILITY IS NO LESS MATERIAL
IN CANDIDATES FOR APPOINTMENT AS MUNICIPAL EMPLOYEES THAN IN CANDIDATES
FOR ELECTIVE OFFICE, GERENDE V. BOARD OF SUPERVISORS, SUPRA, OR UNION
OFFICERS, AMERICAN COMMUNICATIONS ASSN. V. DOUDS, SUPRA. 

MR. JUSTICE BLACK, DISSENTING. 

I AGREE WITH THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS BUT WISH
TO EMPHASIZE TWO OBJECTIONS TO THE OPINION OF THE COURT: 

1.  OUR PER CURIAM OPINION IN GERENDE V. BOARD OF SUPERVISORS, 341
U.S. 56, IN NO WAY STANDS FOR THE PRINCIPLE FOR WHICH THE COURT CITES
IT TODAY.  IN GERENDE, WE UPHELD A MARYLAND LAW THAT HAD BEEN
INTERPRETED BY THE HIGHEST COURT OF THAT STATE TO REQUIRE ONLY AN OATH
THAT A CANDIDATE "IS NOT A PERSON WHO IS ENGAGED 'IN ONE WAY OR ANOTHER
IN THE ATTEMPT TO OVERTHROW THE GOVERNMENT BY FORCE OR VIOLENCE,' AND
THAT HE IS NOT KNOWINGLY A MEMBER OF AN ORGANIZATION ENGAGED IN SUCH AN
ATTEMPT."  THE OATH AND AFFIDAVIT IN THE PRESENT CASE ARE OBVIOUSLY NOT
SO LIMITED. 

2.  THE OPINION OF THE COURT CREATES CONSIDERABLE DOUBT AS TO THE
CONTINUED VITALITY OF THREE OF OUR PAST DECISIONS:  CUMMINGS V.
MISSOURI, 4 WALL.  277; EX PARTE GARLAND, 4 WALL.  333; UNITED STATES
V. LOVETT, 328 U.S. 303.  TO THIS EXTENT IT WEAKENS ONE MORE OF THE
CONSTITUTION'S GREAT GUARANTEES OF INDIVIDUAL LIBERTY.  SEE, E.G.,
DENNIS V. UNITED STATES, ANTE, P. 494, AND BREARD V. ALEXANDRIA, ANTE,
P. 622, DECIDED THIS DAY. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

PETITIONERS ARE CITIZENS OF THE UNITED STATES AND CIVIL SERVICE
EMPLOYEES OF THE CITY OF LOS ANGELES.  IN 1948 THE CITY OF LOS ANGELES
PASSED ORDINANCE NO. 94,004 WHICH REQUIRES EACH OF ITS EMPLOYEES TO
SUBSCRIBE TO AN OATH OF LOYALTY WHICH INCLUDED, INTER ALIA, AN
AFFIRMATION THAT HE DOES NOT ADVISE, ADVOCATE, OR TEACH, AND HAS NOT
WITHIN THE FIVE YEARS PRIOR TO THE EFFECTIVE DATE OF THE ORDINANCE
"ADVISED, ADVOCATED OR TAUGHT, THE OVERTHROW BY FORCE, VIOLENCE OR
OTHER UNLAWFUL MEANS, OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA
OR OF THE STATE OF CALIFORNIA," AND THAT HE IS NOT AND HAS NOT WITHIN
THAT PERIOD BEEN "A MEMBER OF OR AFFILIATED WITH ANY GROUP, SOCIETY,
ASSOCIATION, ORGANIZATION OR PARTY WHICH ADVISES, ADVOCATES OR TEACHES,
OR HAS, WITHIN SAID PERIOD, ADVISED, ADVOCATED OR TAUGHT, THE OVERTHROW
BY FORCE, VIOLENCE OR OTHER UNLAWFUL MEANS OF THE GOVERNMENT OF THE
UNITED STATES OF AMERICA, OR OF THE STATE OF CALIFORNIA." 

THE ORDINANCE ALSO REQUIRES EACH EMPLOYEE TO EXECUTE AN AFFIDAVIT
STATING "WHETHER OR NOT HE IS OR EVER WAS A MEMBER OF THE COMMUNIST
PARTY OF THE UNITED STATES OF AMERICA OR OF THE COMMUNIST POLITICAL
ASSOCIATION, AND IF HE IS OR WAS SUCH A MEMBER, STATING THE DATES WHEN
HE BECAME, AND THE PERIODS DURING WHICH HE WAS, SUCH A MEMBER."    THE
ORDINANCE WAS PASSED TO EFFECTUATE THE PROVISIONS OF SEC. 432 OF THE
CHARTER OF LOS ANGELES (CAL. STAT. 1941, C. 67, P. 3409) WHICH
PROVIDES, INTER ALIA, THAT NO PERSON WHO HAS WITHIN FIVE YEARS PRIOR TO
THE ADOPTION OF SEC. 432 ADVISED, ADVOCATED OR TAUGHT THE OVERTHROW BY
FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES OR OF
CALIFORNIA, OR WHO DURING THAT TIME HAS BEEN A MEMBER OF OR AFFILIATED
WITH ANY GROUP OR PARTY WHICH HAS ADVISED, ADVOCATED, OR TAUGHT THAT
DOCTRINE, SHALL HOLD OR RETAIN OR BE ELIGIBLE FOR ANY EMPLOYMENT IN THE
SERVICE OF THE CITY.  THUS THE ORDINANCE AND SEC. 432 OF THE CHARTER
READ TOGETHER MAKE PLAIN THAT PRIOR ADVOCACY OR MEMBERSHIP IS WITHOUT
MORE A DISQUALIFICATION FOR EMPLOYMENT.  BOTH THE OATH AND THE
AFFIDAVIT ARE METHODS FOR ENFORCEMENT OF THAT POLICY. 

FIFTEEN OF THE PETITIONERS REFUSED TO SIGN EITHER THE OATH OR THE
AFFIDAVIT.  TWO TOOK THE OATH BUT REFUSED TO SIGN THE AFFIDAVIT.  ALL
SEVENTEEN WERE DISCHARGED - THE SOLE GROUND BEING THEIR REFUSAL TO SIGN
THE AFFIDAVIT OR TO SIGN AND TO TAKE THE OATH, AS THE CASE MAY BE.
THEY HAD AN ADMINISTRATIVE REVIEW, WHICH AFFORDED THEM NO RELIEF.  THIS
SUIT WAS THEREUPON INSTITUTED IN THE CALIFORNIA COURT, CLAIMING
REINSTATEMENT AND UNPAID SALARIES.  RELIEF WAS DENIED BY THE DISTRICT
COURT OF APPEAL, 98 CAL. APP.2D 493, 220 P.2D 958; AND A HEARING WAS
DENIED BY THE SUPREME COURT, THREE JUSTICES DISSENTING.  THE CASE IS
HERE ON CERTIORARI. 

THE CASE IS GOVERNED BY CUMMINGS V. MISSOURI, 4 WALL.  277, AND EX
PARTE GARLAND, 4 WALL.  333, WHICH STRUCK DOWN TEST OATHS ADOPTED AT
THE CLOSE OF THE CIVIL WAR.  THE CUMMINGS CASE INVOLVED PROVISIONS OF
THE MISSOURI CONSTITUTION REQUIRING PUBLIC OFFICIALS AND CERTAIN
CLASSES OF PROFESSIONAL PEOPLE, INCLUDING CLERGYMEN, TO TAKE AN OATH
THAT, INTER ALIA, THEY HAD NEVER BEEN "IN ARMED HOSTILITY" TO THE
UNITED STATES; THAT THEY HAD NEVER "BY ACT OR WORD" MANIFESTED THEIR
"ADHERENCE TO THE CAUSE" OF ENEMIES OF THE COUNTRY OR THEIR "DESIRE"
FOR THE TRIUMPH OF ITS ENEMIES; THAT THEY HAD NEVER "KNOWINGLY AND
WILLINGLY HARBORED, AIDED, OR COUNTENANCED" AN ENEMY; THAT THEY HAD
NEVER BEEN A "MEMBER OF, OR CONNECTED WITH, ANY ORDER, SOCIETY, OR
ORGANIZATION INIMICAL TO THE GOVERNMENT OF THE UNITED STATES" OR
ENGAGED "IN GUERILLA WARFARE" AGAINST ITS INHABITANTS; THAT THEY HAD
NEVER LEFT MISSOURI "FOR THE PURPOSE OF AVOIDING ENROLMENT FOR OR DRAFT
INTO THE MILITARY SERVICE OF THE UNITED STATES" OR BECOME ENROLLED AS A
SOUTHERN SYMPATHIZER. 

THE GARLAND CASE INVOLVED CERTAIN ACTS OF CONGRESS REQUIRING PUBLIC
OFFICIALS AND ATTORNEYS PRACTICING BEFORE THE FEDERAL COURTS TO TAKE AN
OATH THAT THEY HAD "VOLUNTARILY GIVEN NO AID, COUNTENANCE, COUNSEL, OR
ENCOURAGEMENT TO PERSONS ENGAGED IN ARMED HOSTILITY" AGAINST THE UNITED
STATES AND THAT THEY HAD "NEITHER SOUGHT NOR ACCEPTED, NOR ATTEMPTED TO
EXERCISE THE FUNCTIONS OF ANY OFFICE WHATEVER, UNDER ANY AUTHORITY OR
PRETENDED AUTHORITY IN HOSTILITY TO THE UNITED STATES."  THE COURT
AMENDED ITS RULES OF ADMISSION TO REQUIRE THIS OATH. 

CUMMINGS, A CATHOLIC PRIEST, WAS INDICTED AND CONVICTED FOR TEACHING
AND PREACHING WITHOUT HAVING FIRST TAKEN THE OATH. 

GARLAND, A MEMBER OF THE BAR OF THE COURT, HAD SERVED IN THE
CONFEDERATE GOVERNMENT, FOR WHICH HE HAD RECEIVED A PARDON FROM THE
PRESIDENT CONDITIONED ON HIS TAKING THE CUSTOMARY OATH OF LOYALTY.  HE
APPLIED FOR PERMISSION TO PRACTICE BEFORE THE COURT WITHOUT TAKING THE
NEW OATH. 

ARTICLE I, SEC. 10 OF THE CONSTITUTION FORBIDS ANY STATE TO "PASS ANY
BILL OF ATTAINDER" OR ANY "EX POST FACTO LAW."  ARTICLE I, SEC. 9
CURTAILS THE POWER OF CONGRESS BY PROVIDING THAT "NO BILL OF ATTAINDER
OR EX POST FACTO LAW SHALL BE PASSED."  THE COURT RULED THAT THE TEST
OATHS IN THE CUMMINGS AND GARLAND CASES WERE BILLS OF ATTAINDER AND EX
POST FACTO LAWS WITHIN THE MEANING OF THE CONSTITUTION.  "A BILL OF
ATTAINDER," WROTE MR. JUSTICE FIELD FOR THE COURT, "IS A LEGISLATIVE
ACT WHICH INFLICTS PUNISHMENT WITHOUT A JUDICIAL TRIAL."  FN1  CUMMINGS
V. MISSOURI, SUPRA, P. 323; AND SEE UNITED STATES V. LOVETT, 328 U.S.
303, 317, 318.  THE COURT HELD THAT DEPRIVATION OF THE RIGHT TO FOLLOW
ONE'S PROFESSION IS PUNISHMENT.  A BILL OF ATTAINDER, THOUGH GENERALLY
DIRECTED AGAINST NAMED INDIVIDUALS, MAY BE DIRECTED AGAINST A WHOLE
CLASS.  BILLS OF ATTAINDER USUALLY DECLARED THE GUILT; HERE THEY
ASSUMED THE GUILT AND ADJUDGED THE PUNISHMENT CONDITIONALLY, I.E., THEY
DEPRIVED THE PARTIES OF THEIR RIGHT TO PREACH AND TO PRACTICE LAW
UNLESS THE PRESUMPTION WERE REMOVED BY THE EXPURGATORY OATH.  THAT WAS
HELD TO BE AS MUCH A BILL OF ATTAINDER AS IF THE GUILT HAD BEEN
IRREVOCABLY PRONOUNCED.  THE LAWS WERE ALSO HELD TO BE EX POST FACTO
SINCE THEY IMPOSED A PENALTY FOR AN ACT NOT SO PUNISHABLE AT THE TIME
IT WAS COMMITTED. 

THERE ARE, OF COURSE, DIFFERENCES BETWEEN THE PRESENT CASE AND THE
CUMMINGS AND GARLAND CASES.  THOSE CONDEMNED BY THE LOS ANGELES
ORDINANCE ARE MUNICIPAL EMPLOYEES; THOSE CONDEMNED IN THE OTHERS WERE
PROFESSIONAL PEOPLE.  HERE THE PAST CONDUCT FOR WHICH PUNISHMENT IS
EXACTED IS SINGLE - ADVOCACY WITHIN THE PAST FIVE YEARS OF THE
OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE.  IN THE OTHER CASES
THE ACTS FOR WHICH CUMMINGS AND GARLAND STOOD CONDEMNED COVERED A WIDER
RANGE AND INVOLVED SOME CONDUCT WHICH MIGHT BE VAGUE AND UNCERTAIN. 
BUT THOSE DIFFERENCES, SEIZED ON HERE IN HOSTILITY TO THE
CONSTITUTIONAL PROVISIONS, ARE WHOLLY IRRELEVANT.  DEPRIVATION OF A
MAN'S MEANS OF LIVELIHOOD BY REASON OF PAST CONDUCT, NOT SUBJECT TO
THIS PENALTY WHEN COMMITTED, IS PUNISHMENT WHETHER HE IS A PROFESSIONAL
MAN, A DAY LABORER WHO WORKS FOR PRIVATE INDUSTRY, OR A GOVERNMENT
EMPLOYEE.  THE DEPRIVATION IS NONETHELESS UNCONSTITUTIONAL WHETHER IT
BE FOR ONE SINGLE PAST ACT OR A SERIES OF PAST ACTS.  THE DEGREE OF
PARTICULARITY WITH WHICH THE PAST ACT IS DEFINED IS NOT THE CRITERION. 
WE ARE NOT DEALING HERE WITH THE PROBLEM OF VAGUENESS IN CRIMINAL
STATUTES.  NO AMOUNT OF CERTAINTY WOULD HAVE CURED THE LAWS IN THE
CUMMINGS AND GARLAND CASES.  THEY WERE STRICKEN DOWN BECAUSE OF THE
MODE IN WHICH PUNISHMENT WAS INFLICTED. 

PETITIONERS WERE DISQUALIFIED FROM OFFICE NOT FOR WHAT THEY ARE
TODAY, NOT BECAUSE OF ANY PROGRAM THEY CURRENTLY ESPOUSE (CF. GERENDE
V. BOARD OF SUPERVISORS, 341 U.S. 56), NOT BECAUSE OF STANDARDS RELATED
TO FITNESS FOR THE OFFICE (CF. DENT V. WEST VIRGINIA, 129 U.S. 114;
HAWKER V. NEW YORK, 170 U.S. 189), BUT FOR WHAT THEY ONCE ADVOCATED. 
THEY ARE DEPRIVED OF THEIR LIVELIHOOD BY LEGISLATIVE ACT, NOT BY
JUDICIAL PROCESSES.  WE PUT THE CASE IN THE ASPECT MOST INVIDIOUS TO
PETITIONERS.  WHETHER THEY ACTUALLY ADVOCATED THE VIOLENT OVERTHROW OF
GOVERNMENT DOES NOT APPEAR.  BUT HERE, AS IN THE CUMMINGS CASE, THE
VICE IS IN THE PRESUMPTION OF GUILT WHICH CAN ONLY BE REMOVED BY THE
EXPURGATORY OATH.  THAT PUNISHMENT, ALBEIT CONDITIONAL, VIOLATES HERE
AS IT DID IN THE CUMMINGS CASE THE CONSTITUTIONAL PROHIBITION AGAINST
BILLS OF ATTAINDER.  WHETHER THE ORDINANCE ALSO AMOUNTS TO AN EX POST
FACTO LAW IS A QUESTION WE DO NOT REACH. 

FN1  MR. JUSTICE FIELD CONTINUED:  "IF THE PUNISHMENT BE LESS THAN
DEATH, THE ACT IS TERMED A BILL OF PAINS AND PENALTIES.  WITHIN THE
MEANING OF THE CONSTITUTION, BILLS OF ATTAINDER INCLUDE BILLS OF PAINS
AND PENALTIES.  IN THESE CASES THE LEGISLATIVE BODY, IN ADDITION TO ITS
LEGITIMATE FUNCTIONS, EXERCISES THE POWERS AND OFFICE OF JUDGE; IT
ASSUMES, IN THE LANGUAGE OF THE TEXT-BOOKS, JUDICIAL MAGISTRACY; IT
PRONOUNCES UPON THE GUILT OF THE PARTY, WITHOUT ANY OF THE FORMS OR
SAFEGUARDS OF TRIAL; IT DETERMINES THE SUFFICIENCY OF THE PROOFS
PRODUCED, WHETHER CONFORMABLE TO THE RULES OF EVIDENCE OR OTHERWISE;
AND IT FIXES THE DEGREE OF PUNISHMENT IN ACCORDANCE WITH ITS OWN
NOTIONS OF THE ENORMITY OF THE OFFENCE."  4 WALL.  P. 323. 

IN ADDITION TO THE HISTORY OF BILLS OF ATTAINDER IN ENGLAND, THE
DRAFTSMEN OF THE CONSTITUTION HAD BEFORE THEM RECENT EXAMPLES OF SUCH
LEGISLATION BY THE REVOLUTIONARY GOVERNMENTS OF THE STATES. 
LEGISLATIVE ACTION AGAINST PERSONS OF KNOWN OR SUSPECTED LOYALIST
SYMPATHIES INCLUDED OUTRIGHT ATTAINT OF TREASON OR SUBVERSION (E.G.,
GEORGIA, ACT OF MARCH 1, 1778; PENNSYLVANIA LAWS 1778, C. 49; NEW YORK
LAWS 1779, THIRD SESSION, C. 25); PROSCRIPTION AND BANISHMENT (E.G.,
MASSACHUSETTS, ACT OF SEPT. 1778, CHARTERS AND GEN. LAWS, C. 48; NEW
HAMPSHIRE LAWS 1778, FOURTH SESSION, C. 9); CONFISCATION (E.G.,
DELAWARE LAWS 1778, C. 29B; NEW JERSEY, ACT OF DEC. 11, 1778, LAWS, P.
40); AS WELL AS NUMEROUS TEST OATHS INVOLVING, AMONG OTHER PENALTIES,
DISQUALIFICATION FROM HOLDING OFFICE OR PRACTICING CERTAIN
PROFESSIONS.  SEE LAWS COLLECTED IN VAN TYNE, THE LOYALISTS IN THE
AMERICAN REVOLUTION, APP. BC; AND GENERALLY, THOMPSON, ANTILOYALIST
LEGISLATION DURING THE AMERICAN REVOLUTION, 3 ILL. L. REV. 81, 147. 
..END :






















LAND V. DOLLAR, 341 U.S. 737 


DECIDED JUNE 4, 1951. 


IN THESE RELATED PROCEEDINGS, THIS COURT (1) GRANTS CERTIORARI IN NOS.
697 AND 702; (2) DENIES A MOTION TO VACATE AN ORDER STAYING THE COURT
OF APPEALS' CONTEMPT ORDER; (3) CONTINUES ON THE DOCKET A MOTION FOR
RECONSIDERATION OF THE DENIAL OF CERTIORARI IN NO. 353; AND (4) REJECTS
THE SUGGESTION THAT THE COURT DEFER ADJOURNMENT AND HEAR ARGUMENT
WITHIN A MATTER OF WEEKS.  PP. 737-740. 

LAND ET AL. V. DOLLAR ET AL* . 

*NO. 353, LAND ET AL. V. DOLLAR ET AL., ON MOTION FOR LEAVE TO FILE A
MOTION FOR RECONSIDERATION OF DENIAL OF CERTIORARI; NO. 697, LAND ET
AL. V. DOLLAR ET AL., AND NO. 702, IN RE KILLION, ON PETITIONS FOR
WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT; NO. - , SAWYER ET AL. V. DOLLAR ET AL.,
AND NO. - , IN RE KILLION, ON MOTION TO VACATE STAY OF CONTEMPT ORDER. 

PER CURIAM. 

(1)  NOS. 697 AND 702 ARE BEFORE THE COURT ON PETITIONS FOR
CERTIORARI TO REVIEW, FIRST, AN ORDER OF THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA REQUIRING THAT CHARLES SAWYER ENDORSE CERTAIN
STOCK CERTIFICATES AS "UNITED STATES MARITIME COMMISSION, BY CHARLES
SAWYER, SECRETARY OF COMMERCE," AND, SECOND, A RESTRAINING ORDER ISSUED
BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ENJOINING
NAMED PETITIONERS FROM: 

"PROPOSING, SEEKING OR ADVOCATING ANY STEP IN ANY PROCEEDING, WHETHER
IN SAID SUIT ENTITLED UNITED STATES V. R. STANLEY DOLLAR, ET AL., OR IN
ANY OTHER PROCEEDING, INCONSISTENT WITH STRICT COMPLIANCE WITH AND
OBEDIENCE TO THE ORDERS HERETOFORE ENTERED BY THIS COURT IN THIS
CAUSE. 

"AND IT IS FURTHER ORDERED THAT SAID PERSONS ARE AND EACH OF THEM IS
ENJOINED AND RESTRAINED UNTIL FURTHER ORDER OF THIS COURT FROM
COMPLYING WITH, TAKING ADVANTAGE OF, OR UTILIZING, OR SEEKING TO COMPLY
WITH, UTILIZE OR TAKE ADVANTAGE OF SAID TEMPORARY INJUNCTION ISSUED BY
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SOUTHERN DIVISION, IN SAID CAUSE ENTITLED UNITED STATES V.
R. STANLEY DOLLAR, ET AL., OR ANY ORDER OF SIMILAR TENOR WHICH MAY
HEREAFTER BE ENTERED BY SAID COURT OR ANY OTHER COURT." 

THE TWO ORDERS ARE BEFORE THE COURT FOR THE FIRST TIME IN NOS. 697
AND 702.  CERTIORARI IS GRANTED IN THESE CASES. 

(2)  SUBSEQUENT TO THE ISSUANCE OF THE ABOVE RESTRAINING ORDER, THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FOUND NAMED
PETITIONERS TO BE IN CIVIL CONTEMPT OF ITS PRIOR DECREES BY REASON OF,
INTER ALIA, THEIR ACTIVITIES IN CONNECTION WITH OBTAINING THE TEMPORARY
INJUNCTION ON BEHALF OF THE UNITED STATES IN ITS SUIT IN THE NORTHERN
DISTRICT OF CALIFORNIA, REFERRED TO IN THE RESTRAINING ORDER.  THE
ORDER OF CONTEMPT HAS BEEN STAYED PENDING DISPOSITION OF NOS. 697 AND
702 AS WELL AS THE FORTHCOMING PETITIONS FOR CERTIORARI DIRECTED TO THE
CONTEMPT ORDER.  MOTION OF RESPONDENTS TO VACATE THE STAY IS DENIED. 

(3)  NO ACTION IS TAKEN AT THIS TIME ON PETITIONERS' MOTION FOR LEAVE
TO FILE A MOTION FOR RECONSIDERATION OF OUR DENIAL OF CERTIORARI IN NO.
353.  THE MOTION IS CONTINUED ON THE DOCKET SO THAT THERE MAY BE NO
QUESTION AS TO THIS COURT'S CONTROL OVER NO. 353 FOR WHATEVER ACTION
MAY BE DEEMED APPROPRIATE. 

(4)  IT HAS BEEN SUGGESTED THAT THIS COURT DELAY THE NORMAL ENDING OF
THE OCTOBER TERM, 1950, AND HEAR ARGUMENT WITHIN A MATTER OF WEEKS.  NO
MOTION FOR ADVANCEMENT HAS BEEN FILED. 

WE AGREE THAT EXPEDITIOUS DISPOSITION OF THE IMPORTANT ISSUES IN THIS
LENGTHY PROCEEDING IS HIGHLY DESIRABLE.  BUT OUR DESIRE FOR EXPEDITION
MUST BE WEIGHED AGAINST THE DANGER TO ORDERLY PRESENTATION OF IMPORTANT
ISSUES INHERENT IN HASTY BRIEFING AND ARGUMENT.  AND THIS IS
PARTICULARLY SO WHEN IT IS SUGGESTED THAT WE HEAR ARGUMENT NOT ONLY IN
NOS. 697 AND 702 NOW BEFORE US, BUT ALSO IN THE CASES TO COME TO US
FROM THE ORDER OF CIVIL CONTEMPT IN WHICH PETITIONS FOR CERTIORARI ARE
TO BE FILED. 

THERE IS A FURTHER CONSIDERATION MILITATING AGAINST PREMATURE
DISPOSITION OF THE ISSUES PRESENTED.  THERE IS NOW PENDING IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AN
ACTION BROUGHT BY THE UNITED STATES FOR ADJUDICATION OF ITS CLAIM OF
TITLE IN THE SAME SHARES OF STOCK AS THOSE INVOLVED IN THE INSTANT
CASES.  WE HAVE HERETOFORE HELD THAT JUDGMENTS ENTERED IN THE INSTANT
CASES WOULD NOT BE RES JUDICATA AGAINST THE UNITED STATES.  LAND V.
DOLLAR, 330 U.S. 731, 736, 737, 739(1947).  APPEALS HAVE BEEN TAKEN
FROM THE TEMPORARY INJUNCTION ISSUED IN THAT SUIT ON BEHALF OF THE
UNITED STATES AND WITH WHICH MUCH OF THE PRESENT PHASE OF THIS
LITIGATION IS CONCERNED.  WE ARE ADVISED THAT ON MAY 31, 1951, THE
COURT OF APPEALS FOR THE NINTH CIRCUIT HEARD ARGUMENT ON A MOTION TO
STAY THE TEMPORARY INJUNCTION PENDING APPEAL FROM THE ORDER GRANTING
THE TEMPORARY INJUNCTION AND HAS TAKEN THAT MOTION UNDER ADVISEMENT. 
ON JUNE 1, 1951, THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA BEGAN ITS HEARING ON DEFENDANTS' (RESPONDENTS IN THIS COURT)
MOTION TO DISMISS THE COMPLAINT AND FOR SUMMARY JUDGMENT. 

FOR THE FOREGOING REASONS, WE DO NOT ACCEPT THE SUGGESTION THAT
HEARING ARGUMENT IN A MATTER OF WEEKS IS COMPATIBLE WITH THE ORDERLY
ADMINISTRATION OF JUSTICE. 

MR. JUSTICE BLACK AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE APPLICATIONS. 

MR. JUSTICE FRANKFURTER DOES NOT JOIN IN THIS OPINION. 

SEPARATE MEMORANDUM OF MR. JUSTICE FRANKFURTER. 

IT IS NOT PRACTICABLE, AS A RULE, FOR REASONS INDICATED IN MY
MEMORANDUM IN MARYLAND V. BALTIMORE RADIO SHOW, 338 U.S. 912, TO SET
FORTH THE CONSIDERATIONS THAT MOVE THE COURT IN GRANTING OR DENYING A
PETITION FOR CERTIORARI.  AND SINCE AN UNEXPLAINED ANNOUNCEMENT OF AN
INDIVIDUAL VOTE ON SUCH ACTION IS TOO OFTEN APT TO BE EQUIVOCAL, IT HAS
BEEN MY UNBROKEN PRACTICE NOT TO NOTE MY VOTE ON THE DISPOSITION OF
SUCH PETITIONS.  HOWEVER, THE PETITION NOW BEFORE THE COURT IS THE
LATEST STAGE IN A LONG PROCESS.  IN DIFFERENT PHASES IT HAS BEEN HERE
THREE TIMES.  BECAUSE OUR ACTION MAY BE MISLEADING, UNLESS VIEWED IN
ITS SETTING, A PLAIN NARRATIVE OF THE COURSE OF THIS LITIGATION IN ITS
BEARING ON THIS PETITION IS, I BELIEVE, DESIRABLE. 

1.  WHAT IS ULTIMATELY IN ISSUE IS THE OWNERSHIP OF THE DOLLAR
STEAMSHIP LINES.  AS A RESULT OF TRANSACTIONS BETWEEN THE LINES AND THE
UNITED STATES MARITIME COMMISSION, WHICH WE NEED NOT HERE RELATE, 92%
OF THE STOCK OF THE CORPORATION WAS IN 1945 LISTED IN THE NAME OF THE
MARITIME COMMISSION AND VOTED BY THE MEMBERS OF THAT BODY.  ON NOVEMBER
6 OF THAT YEAR, THE FORMER DOLLAR STOCKHOLDERS (HEREAFTER CALLED THE
DOLLARS) BROUGHT SUIT AGAINST THE MEMBERS OF THE COMMISSION, ALLEGING
THAT THE STOCK WAS UNLAWFULLY WITHHELD AND DEMANDING ITS RETURN.  THE
ACTION WAS BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA,
AND FOR FOUR AND ONE-HALF YEARS WOUND ITS WAY THROUGH THE COURT OF
APPEALS TO THIS COURT, BACK TO THE DISTRICT COURT, AND ONCE AGAIN TO
THE COURT OF APPEALS.  81 U.S. APP. D.C. 28, 154 F.2D 307; 330 U.S.
731; 82 F.SUPP.  919; 87 U.S. APP. D.C. 214, 184 F.2D 245.  AT EVERY
STAGE, THE COMMISSIONERS WERE REPRESENTED BY ATTORNEYS FROM THE
DEPARTMENT OF JUSTICE, WHO ASSERTED AS GROUND FOR DISMISSAL THAT THE
ACTION WAS A SUIT AGAINST THE UNITED STATES TO WHICH CONSENT HAD NOT
BEEN GIVEN.  OUR DECISION, 330 U.S. 731, HELD THAT, IF THE ALLEGATIONS
OF THE COMPLAINT WERE TRUE, THE ACTION WAS NOT AGAINST THE UNITED
STATES, BUT RATHER AGAINST THE COMMISSIONERS IN THEIR INDIVIDUAL
CAPACITIES.  THE DISTRICT COURT DECIDED ON THE MERITS THAT THE FACTS
WERE NOT AS THEY HAD BEEN ALLEGED.  82 F.SUPP.  919.  BUT ON JULY 17,
1950, THE COURT OF APPEALS REVERSED.  IT HELD THAT THE STOCK OF THE
CORPORATION WAS UNLAWFULLY WITHHELD BY THE MEMBERS OF THE COMMISSION,
AND THAT, SINCE TITLE TO IT HAD NEVER VESTED IN THE UNITED STATES, THE
SUIT WAS NOT AGAINST THE SOVEREIGN.  87 U.S. APP. D.C. 214, 184 F.2D
245.  WE REFUSED TO REVIEW THIS DECISION.  340 U.S. 884.  LATER, WE
REFUSED TO RECONSIDER OUR REFUSAL.  340 U.S. 948. 

2.  THE UPSHOT OF THE LITIGATION AT THIS POINT WAS THAT THE DOLLARS
HAD OBTAINED A FINAL JUDGMENT THAT THE MEMBERS OF THE UNITED STATES
MARITIME COMMISSION WERE UNLAWFULLY WITHHOLDING THE STOCK OF THE
CORPORATION, AND THAT, AS AGAINST THE COMMISSIONERS, THE DOLLARS WERE
ENTITLED TO IT.  TO CARRY OUT THE JUDGMENT, THE DISTRICT COURT ENTERED
AN ORDER ON MANDATE ON DECEMBER 11, 1950.  THAT ORDER STATED IN PART
THAT 

"TITLE TO THE SHARES IN QUESTION IS IN THE PLAINTIFFS (DOLLARS),
SINCE THEY WERE NEVER LEGALLY DIVESTED OF THE SAME, AND THE ASSERTED
TITLE OF ALL OTHERS ARISING OUT OF THE SAME TRANSACTION TO THE CONTRARY
(IS) NULL AND VOID  ...  "  97 F.SUPP.  59. 

3.  THE MEMBERS OF THE MARITIME COMMISSION TOOK AN APPEAL FROM THIS
ORDER.  THEY URGED THAT IT WAS TOO BROAD, IN THAT IT PURPORTED TO BIND,
NOT ONLY THE INDIVIDUAL MEMBERS OF THE COMMISSION, BUT ALSO THE UNITED
STATES.  THE COURT OF APPEALS REMANDED THE CAUSE WITH INSTRUCTIONS TO
ENTER A NARROWER ORDER, THE TERMS OF WHICH IT PRESCRIBED.  THE
SUBSTANCE OF THOSE TERMS IS AS FOLLOWS: 

"(PLAINTIFFS)(DOLLARS) ARE ENTITLED TO POSSESSION OF THE SHARES AS
AGAINST DEFENDANTS, AND THE DEFENDANTS ARE ORDERED AND DIRECTED TO
DELIVER FORTHWITH TO THE PLAINTIFFS THE SAID SHARES.  THE POSSESSION TO
WHICH PLAINTIFFS ARE ENTITLED IS AN EFFECTIVE POSSESSION OF THE
SHARES.  IN SO FAR AS SUCH RIGHT REQUIRES ACTION ON THE PART OF
DEFENDANTS IN ADDITION TO PHYSICAL DELIVERY OF THE CERTIFICATES, SUCH
ACTION IS HEREBY DIRECTED TO BE TAKEN.  PLAINTIFFS ARE ENTITLED UNDER
THIS JUDGMENT TO ALL RIGHTS BELONGING TO POSSESSORS OF THE SHARES."  88
U.S. APP. D.C. - , - , 188 F.2D 629, 631. 

IN FURTHER EXPLANATION OF ITS ORDER THE COURT STATED: 

"THE DISTRICT COURT IS DIRECTED TO ENFORCE OBEDIENCE TO ITS ORDER, AS
HEREIN MODIFIED, WHETHER EFFECTIVE PROCESS IS AGAINST THE PRESENT NAMED
DEFENDANTS OR IS AGAINST ANOTHER OFFICIAL, OR OTHER OFFICIALS, AGAINST
WHOM THE ORDER MIGHT BE LAWFULLY ENFORCED IF HE OR THEY WERE A PARTY OR
PARTIES TO THE SUIT. 

     .         .         .         .         . 

"IF THE SECRETARY OF COMMERCE NOW HAS CUSTODY OR POSSESSION OF THE
SHARES, HE OBVIOUSLY ACQUIRED SUCH CUSTODY OR POSSESSION SINCE THE
BEGINNING OF THIS ACTION, INDEED SINCE THE ORDER OF JUNE 11,
1947(PROHIBITING TRANSFER OF THE STOCK PENDENTE LITE).  OBEDIENCE TO
THE ORDER ABOUT TO BE ENTERED PURSUANT TO THIS OPINION IS, THEREFORE,
ENFORCEABLE AGAINST HIM, AND HE IS LIABLE UNDER RULE 71, SUPRA, TO THE
SAME PROCESS FOR ENFORCING OBEDIENCE TO THAT ORDER AS IF HE WERE A
PARTY."  88 U.S. APP. D.C. - , - , 188 F.2D 629, 632. 

4.  WE WERE ASKED TO GRANT CERTIORARI TO REVIEW THIS ORDER FOR
ENFORCEMENT.  ON MARCH 12, 1951, WE REFUSED.  340 U.S. 948.  IT WAS AT
THIS POINT THAT WE REFUSED TO RECONSIDER OUR REFUSAL TO REVIEW THE
DECISION ON THE MERITS. 

5.  ACCORDINGLY, THE CASE WENT BACK TO THE DISTRICT COURT.  THAT
COURT ENTERED TWO ORDERS ON MARCH 16.  THE FIRST WAS IN THE TERMS
PRESCRIBED BY THE COURT OF APPEALS.  THE SECOND WAS DESIGNED TO ENFORCE
THE JUDGMENT AGAINST THE SECRETARY OF COMMERCE, WHO, UNDER A
PRESIDENTIAL REORGANIZATION PLAN, HAD SUCCEEDED THE MARITIME COMMISSION
AS CUSTODIAN OF THE STOCK SHORTLY BEFORE THE COURT OF APPEALS ENTERED
ITS DECISION ON THE MERITS.  THIS ORDER DIRECTED THE SECRETARY TO
ENDORSE THE STOCK CERTIFICATES IN HIS POSSESSION IN BLANK, BY WRITING
ON THEM THE WORDS, "UNITED STATES MARITIME COMMISSION, BY CHARLES
SAWYER, SECRETARY OF COMMERCE."  IT REQUIRED FURTHER THAT HE DELIVER
THE STOCK TO A REPRESENTATIVE OF THE DOLLARS, AND THAT HE INSTRUCT THE
CORPORATION TO MAKE THE TRANSFERS OF RECORD.  IN THE EVENT THAT THE
SECRETARY FAILED TO ENDORSE THE STOCK BEFORE DELIVERY OR TO ISSUE THE
INSTRUCTIONS PRIOR TO MARCH 17, THE CLERK OF THE DISTRICT COURT WAS
DIRECTED TO PERFORM THESE ACTS IN HIS PLACE.  97 F.SUPP.  60. 

6.  MEANWHILE, A NEW PROCEEDING GOT UNDER WAY.  ON MARCH 12, THE DAY
WE DENIED CERTIORARI TO THE DECISION OF THE COURT OF APPEALS MODIFYING
THE ORDER ON MANDATE, THE GOVERNMENT FILED A COMPLAINT IN THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION.  IN
THIS ACTION, THE UNITED STATES WAS NAMED AS PLAINTIFF, AND SOUGHT
RELIEF BY INJUNCTION, DECLARATORY JUDGMENT, AND DAMAGES AGAINST THE
DOLLAR SHAREHOLDERS, THE CORPORATION, AND THE TRANSFER AGENTS
RESPONSIBLE FOR THE STOCK.  THE CLAIM URGED WAS SUBSTANTIALLY THE SAME
AS THAT WHICH GOVERNMENT COUNSEL FOR MEMBERS OF THE MARITIME COMMISSION
HAD UNSUCCESSFULLY ADVANCED IN THE LITIGATION IN THE DISTRICT OF
COLUMBIA WHICH CULMINATED IN THE JUDGMENT AGAINST THE INDIVIDUAL
DEFENDANTS. 

7.  ON MARCH 19, THE GOVERNMENT MOVED FOR A PRELIMINARY INJUNCTION IN
THIS CALIFORNIA LITIGATION.  IT REQUESTED THAT THE DOLLARS BE
RESTRAINED FROM "EXERCISING OR ATTEMPTING TO EXERCISE ANY RIGHTS OR
PRIVILEGES AS THE OWNERS" OF THE STOCK, FROM MAKING DEMANDS UPON THE
CORPORATION THAT NEW CERTIFICATES BE ISSUED IN THEIR NAME, AND FROM
TRANSFERRING THE STOCK CERTIFICATES IN THEIR POSSESSION.  THE
GOVERNMENT SUPPORTED ITS MOTION BY AN AFFIDAVIT OF THE PRESENT CHAIRMAN
OF THE FEDERAL MARITIME BOARD.  ON THE BASIS OF A REPORT OF THE
MARITIME COMMISSION TO THE CONGRESS ON APRIL 10, 1939, WHICH REFERRED
TO THE DOLLAR MANAGEMENT AS "SHOCKINGLY INCOMPETENT" AND CHARGED IT
WITH DRAWING EXCESSIVE SALARIES FROM THE CORPORATION AND WITH
"(FAILURE) TO MAINTAIN ADEQUATE SERVICE FROM THE WEST COAST TO THE
ORIENT," THE CHAIRMAN STATED THAT "(SHOULD) INEFFICIENT MANAGEMENT
REPLACE THE EXISTING MANAGEMENT" OF THE CORPORATION, "GRAVE DANGER
EXISTS THAT THIS IMPORTANT UNIT OF THE AMERICAN MERCHANT MARINE MAY
DETERIORATE AS IT DID BEFORE WHEN UNDER THE CONTROL OF PLAINTIFFS IN
THE CASE OF R. STANLEY DOLLAR ET AL. V. EMORY S. LAND ET AL."  ON APRIL
6 THE DISTRICT JUDGE ANNOUNCED THAT HE WOULD ISSUE A TEMPORARY
RESTRAINING ORDER.  SEE 97 F.SUPP.  50.    8.  THAT ORDER, DATED APRIL
11, IS IN PERTINENT PART AS FOLLOWS: 

"NOW, THEREFORE, IT IS HEREBY ORDERED BY THIS COURT THAT, IN ORDER TO
PRESERVE THE STATUS QUO PENDING THE DETERMINATION BY THIS COURT AS TO
WHETHER PLAINTIFF ON THE ONE HAND, OR THE (DOLLARS) ...  ON THE OTHER
HAND, ARE THE LAWFUL OWNERS OF SAID STOCK, THE (DOLLARS)  ...  BE AND
THEY HEREBY ARE, ENJOINED PENDING THE ENTRY OFFICIAL JUDGMENT IN THIS
ACTION, FROM EXERCISING OR ATTEMPTING TO EXERCISE ANY RIGHTS OR
PRIVILEGES AS OWNERS OF STOCK CERTIFICATES  ...  , AND FROM MAKING ANY
DEMANDS UPON (THE CORPORATION OR ITS AGENTS)  ...  THAT NEW
CERTIFICATES REPRESENTING SAID SHARES OF STOCK  ...  BE ISSUED TO (THE
DOLLARS)  ...  , OR THAT SAID (DOLLARS) BE REGISTERED AS THE OWNERS OF
THE SHARES OF STOCK REPRESENTED BY SAID CERTIFICATES  ...  , AND FROM
PLEDGING, SELLING, TRANSFERRING, OR OTHERWISE DISPOSING OF SAID STOCK
CERTIFICATES AND THE SHARES OF STOCK REPRESENTED THEREBY, AND 

"IT IS FURTHER ORDERED BY THIS COURT THAT (THE CORPORATION AND ITS
AGENTS)  ...  BE, AND THEY HEREBY ARE, RESTRAINED, PENDING THE ENTRY OF
FINAL JUDGMENT IN THIS ACTION, FROM ISSUING ANY NEW CERTIFICATES OF
STOCK OF (THE CORPORATION) REPRESENTING SAID SHARES TO (THE DOLLARS)
...  , FROM REGISTERING OR RECORDING (THE DOLLARS)  ...  AS OWNERS OF
ANY OF THE SHARES OF STOCK  ...  , AND FROM IN ANY WAY RECOGNIZING SAID
(DOLLARS)  ...  , AS THE LAWFUL OWNERS OF SAID SHARES OF STOCK OR SAID
CERTIFICATES." 

9.  WHILE THESE PROCEEDINGS WERE TAKING PLACE IN CALIFORNIA, APPEALS
WERE TAKEN TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
FROM THE TWO ORDERS ENTERED BY THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA ON MARCH 16.  THE SECRETARY OF COMMERCE AND THE MEMBERS OF THE
MARITIME COMMISSION URGED AS GROUNDS FOR REVERSAL THAT THE LOWER COURT
HAD MISCONSTRUED THE MANDATE OF THE COURT OF APPEALS, AND HAD
JEOPARDIZED THE UNITED STATES' CLAIM OF TITLE BY GIVING THE DOLLARS
POWER TO TRANSFER THE STOCK TO A BONA FIDE PURCHASER FOR VALUE.  THEY
DID NOT ASSERT AS GROUNDS FOR REVERSING THE ORDERS THAT THE DOLLARS
WERE LIKELY SO TO MISMANAGE THE CORPORATION THAT ASSETS TO WHICH THE
UNITED STATES MIGHT ULTIMATELY BE ENTITLED WOULD BE WASTED.  ON APRIL 4
THE COURT DISMISSED THE APPEALS, WITHOUT OPINION.  AT THE SAME TIME IT
TOOK UNDER ADVISEMENT A MOTION TO IMPOSE SANCTIONS ON THE
REPRESENTATIVES OF THE GOVERNMENT. 

10.  THE COURT OF APPEALS ACTED ON THE MOTION TO IMPOSE SANCTIONS BY
ORDERS DATED APRIL 10, FOR REASONS INDICATED IN A STATEMENT READ IN
OPEN COURT ON APRIL 6 AND AN OPINION FILED ON APRIL 11, 1951.  88 U.S.
APP. D.C. - , 190 F.2D 366. 

(A)  IT ISSUED AN ORDER REQUIRING THE SECRETARY OF COMMERCE, THE
SOLICITOR GENERAL, AND OTHER OFFICIALS OF THE DEPARTMENT OF JUSTICE AND
OF THE CORPORATION TO SHOW CAUSE WHY THEY SHOULD NOT BE HELD IN
CONTEMPT FOR DISOBEDIENCE TO THE ORDERS OF THE COURTS OF THE DISTRICT
OF COLUMBIA.  IT BASED THIS ORDER IN PART ON ALLEGATIONS THAT THE
RESPONDENTS "REFUSED TO ENDORSE THE CERTIFICATES AND REFUSED TO
INSTRUCT THE TRANSFER AGENT TO TRANSFER THE SHARES" AS DIRECTED BY THE
COURT.  INSTEAD, RESPONDENTS "EXECUTED PROXIES IN THEIR OWN NAMES AFTER
THE DECREE OF THIS COURT WAS KNOWN TO THEM," AND "WARNED, IN WRITING,
THE TRANSFER AGENT OF THE CORPORATION NOT TO TRANSFER THE SHARES OF
STOCK."  IN PART, THE ORDER WAS BASED ON THE ALLEGATION THAT
RESPONDENTS "SOUGHT AND OBTAINED FROM THE DISTRICT COURT IN NORTHERN
CALIFORNIA AN INJUNCTION AGAINST THE DOLLAR INTERESTS, RESTRAINING THEM
FROM ATTEMPTING TO SECURE COMPLIANCE WITH THE DECREE OF THIS COURT." 
88 U.S. APP. D.C. AT - , 190 F.2D AT 374.  THE PROCEEDINGS TO WHICH
THIS ORDER HAS LED ARE NOT BEFORE US ON THIS PETITION. 

(B)  THE COURT OF APPEALS ISSUED A RESTRAINING ORDER ALSO DIRECTED TO
THE SECRETARY OF COMMERCE, THE SOLICITOR GENERAL, AND OFFICERS OF THE
DEPARTMENT OF JUSTICE AND THE CORPORATION.  IT RECITED THAT THESE
RESPONDENTS "CAUSED TO BE INSTITUTED" THE CALIFORNIA SUIT, AND THAT "IN
SAID ACTION SAID RESPONDENTS HAVE SOUGHT IN THE NAME OF THE UNITED
STATES RELIEF WHICH IS CONTRARY TO, INCONSISTENT WITH, AND IN
NULLIFICATION OF THIS COURT'S DECISIONS AND ORDERS" IN THE CASE.  IT
STATED AT THE HEARING ON THE ORDER THAT IT WAS NOT DECIDING "WHETHER
THE UNITED STATES MIGHT SEEK ANCILLARY INJUNCTIVE RELIEF IN ANY OTHER
RESPECT; THAT IS, IN ANY RESPECT SAVE ONLY THE DEFEAT AND NULLIFICATION
OF A JUDGMENT ALREADY FINALLY ENTERED BY A COURT OF COMPETENT
JURISDICTION."  IT ORDERED THAT THE RESPONDENTS, THEIR AGENTS,
ATTORNEYS, AND ALL PERSONS IN ACTIVE CONCERT WITH ANY OF THEM 

"BE AND THEY HEREBY ARE ENJOINED AND RESTRAINED UNTIL FURTHER ORDER
OF THIS COURT FROM PROPOSING, SEEKING OR ADVOCATING ANY STEP IN ANY
PROCEEDING, WHETHER IN SAID SUIT ENTITLED UNITED STATES V. R. STANLEY
DOLLAR, ET AL., OR IN ANY OTHER PROCEEDING, INCONSISTENT WITH STRICT
COMPLIANCE WITH AND OBEDIENCE TO THE ORDERS HERETOFORE ENTERED BY THIS
COURT IN THIS CAUSE. 

"AND IT IS FURTHER ORDERED THAT SAID PERSONS ARE AND EACH OF THEM IS
ENJOINED AND RESTRAINED UNTIL FURTHER ORDER OF THIS COURT FROM
COMPLYING WITH, TAKING ADVANTAGE OF, OR UTILIZING, OR SEEKING TO COMPLY
WITH, UTILIZE OR TAKE ADVANTAGE OF SAID TEMPORARY INJUNCTION ISSUED BY
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SOUTHERN DIVISION, IN SAID CAUSE ENTITLED UNITED STATES V.
R. STANLEY DOLLAR, ET AL., OR ANY ORDER OF SIMILAR TENOR WHICH MAY
HEREAFTER BE ENTERED BY SAID COURT OR ANY OTHER COURT." 

WE HAVE BEFORE US FOR REVIEW ON THIS PETITION (1) THE ORDER OF THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT DISMISSING
APPEALS FROM THE ORDERS ENTERED BY THE DISTRICT COURT ON MARCH 16
DIRECTING THAT THE STOCK BE DELIVERED TO THE DOLLARS; (2) THE
RESTRAINING ORDER ISSUED BY THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT ON APRIL 10. 

THREE OTHER MATTERS CONCERNING THIS LITIGATION ARE ALSO NOW BEFORE
THE COURT.  THEY ARE REFERRED TO IN A PER CURIAM OPINION.  THIS
MEMORANDUM DOES NOT ADDRESS ITSELF TO THEM. 

BY MR. JUSTICE JACKSON. 

RESPONDENTS ASK THE FULL COURT TO VACATE A STAY OF PROCEEDINGS
GRANTED BY THE CHIEF JUSTICE.  I REGRET THAT I CANNOT ACQUIESCE IN
SUMMARY DISPOSITION OF THE MOTION, FOR I THINK THE CIRCUMSTANCES
REQUIRE THE COURT TO SET IT DOWN FOR PROMPT ARGUMENT AND ACT ONLY AFTER
HEARING BOTH SIDES. 

THIS COURT EXAMINED THE DECISION OF THE COURT OF APPEALS THAT THE
DOLLAR INTERESTS WERE ENTITLED TO THE STOCK IN QUESTION AND DECIDED
THAT IT DID NOT MERIT FURTHER REVIEW.  87 U.S. APP. D.C. 214, 184 F.2D
245.  CERTIORARI DENIED, 340 U.S. 884.  THE COURTS BELOW PROPERLY
UNDERSTOOD THAT WE THEN REGARDED THAT LITIGATION AS ENDED AND THE
DISTRICT COURT ENTERED ITS MANDATE.  WHEN COMPLETE COMPLIANCE WAS
WITHHELD, THE MANDATE WAS MODIFIED TO ORDER OFFICIALS TO DELIVER UP
"EFFECTIVE POSSESSION" OF THE STOCK.  CERTIORARI WAS SOUGHT FROM THIS
ENFORCEMENT ORDER AND WE WERE ALSO AGAIN ASKED TO REVIEW THE MERITS. 
WE DENIED BOTH.  340 U.S. 948.  TO DATE, "EFFECTIVE POSSESSION" HAS NOT
BEEN DELIVERED. 

WE MAY HAVE BEEN RIGHT OR WE MAY HAVE BEEN WRONG IN THESE REPEATED
DENIALS OF REVIEW.  BUT WHAT THE COURT OF APPEALS HAS NOW DONE IS TRY
TO EFFECTUATE A JUDGMENT THAT WE, BY REFUSAL TO REVIEW, IN EFFECT HAVE
CONFIRMED. 

DENIAL BY THE FULL COURT OF THIS MOTION FIXES IT AS THE COURT'S
POLICY TO SUSPEND ENFORCEMENT INDEFINITELY, CERTAINLY SO LONG AS ANY
PHASE OF THIS MATTER IS PENDING HERE.  SUCCESSIVE STAYS WILL ISSUE AS
OF COURSE UNTIL WE DECIDE THIS AND PERHAPS ALSO THE CASE RECENTLY
COMMENCED IN CALIFORNIA.  NO ONE KNOWS FOR HOW LONG THIS WILL
CONTINUE.  MY PREDICTION WOULD BE IN TERMS OF YEARS RATHER THAN
MONTHS. 

CERTAINLY BOTH THE APPEARANCE AND SUBSTANCE OF JUSTICE REQUIRE THAT
THE PARTIES BE HEARD BEFORE THE COURT DENIES RESPONDENTS, FOR AN
INDEFINITE PERIOD, THE BENEFITS OF THE JUDGMENT THEY HAVE WON.  WE
SHOULD NOT OVERLOOK THE FACT THAT MANAGEMENT OF THIS SHIPPING CONCERN
IS KEPT OUT OF THE HANDS OF THOSE WHOM YEARS OF LITIGATION HAVE
ADJUDGED TO BE ITS OWNERS, AND NO PROTECTION BY BOND, CONDITION OF THE
ORDER, OR OTHERWISE IS PROVIDED FOR THEM DURING SUCH TIME AS IT IS KEPT
IN THE HANDS ADJUDGED TO HAVE IT ILLEGALLY. 

THIS COURT, NOW ASKED TO VACATE THE STAY ORDER, DENIES THE MOTION
WITHOUT HEARING EITHER OF THE PARTIES.  THIS MATTER HAS BECOME ONE OF
CONSIDERABLE DELICACY AND I SHOULD NOT, IN EFFECT, APPROVE AN
INDEFINITE STAY OF PROCEEDINGS WITHOUT HEARING ALL THE ARGUMENT AND
INFORMATION THAT EITHER PARTY CAN OFFER.  I DO NOT THINK DENIAL WITHOUT
HEARING IS PRUDENT JUDICIAL ACTION.  NO LEGITIMATE INTEREST COULD
SUFFER FROM A HEARING AND WE WOULD SURELY BE BETTER INFORMED AS A
RESULT OF IT. 

EVEN IF THE PARTIES THEMSELVES ARE NOT STRICTLY ENTITLED TO OR DO NOT
WANT TO ARGUE THIS MOTION, I SHOULD REQUIRE THEM TO DO SO, FOR HEARINGS
ARE MORE IMPORTANT HERE FOR THE BENEFIT OF THE COURT, AS A PROTECTION
AGAINST UNWISE DECISION, THAN FOR BENEFIT OF THE PARTIES.  IT IS THE
COURT THAT IS NOW ON TRIAL.  WHEN THE SHOE OF CONTEMPT WAS ON THE OTHER
FOOT, WE STRONGLY SUPPORTED THE GOVERNMENT'S DEMAND FOR COMPLETE
SUBMISSION TO COURT DECREES, EVEN BEFORE THEY WERE SUSTAINED BY THIS
COURT AND THOUGH THEIR VALIDITY WAS REASONABLY IN DOUBT.  ON THIS BASIS
A HEAVY FINE WAS LEVIED AGAINST THE UNITED MINE WORKERS.  UNITED STATES
V. UNITED MINE WORKERS, 330 U.S. 258.  SEE ALSO MCCOMB V. JACKSONVILLE
PAPER CO., 336 U.S. 187. 

THE SPECTACLE OF THIS COURT STALLING THE ENFORCEMENT EFFORTS OF LOWER
COURTS WHILE THERE IS OUTSTANDING A JUDGMENT THAT SOME OF THE NATION'S
HIGH OFFICIALS ARE GUILTY OF CONTEMPT OF COURT IS NOT WHOLESOME.  THE
EVIL INFLUENCE OF SUCH AN EXAMPLE WILL BE INCREASED BY DELAY.  THIS
COURT SHOULD EXERCISE UTMOST CARE LEST IT APPEAR TO BE INDIFFERENT TO A
CLAIM OF OFFICIAL DISOBEDIENCE. 

MOREOVER, WE OWE SOMETHING IN THIS MATTER TO THE COURT OF APPEALS. 
THAT COURT HELD SEVERAL HEARINGS, CONSIDERED EVERY PHASE OF THIS CASE
IN CAREFUL AND EXHAUSTIVE OPINIONS, AND MADE DETAILED FINDINGS OF
FACT.  IT EMBARKED ON THIS EFFORT AT ENFORCEMENT ONLY AFTER THIS COURT
HAD REFUSED TO REVIEW THE BASIC ORDERS.  THEY WERE CLEARLY JUSTIFIED IN
BELIEVING THAT WE EXPECTED THE ORDER TO BE ENFORCED.  SURELY WE DO NOT
WANT TO CONFIRM MR. DOOLEY'S OBSERVATION TO THE EFFECT THAT AN APPEAL
IS AN OCCASION FOR ONE COURT TO SHOW ITS CONTEMPT FOR ANOTHER. 

BEING OUTVOTED AS TO THE STAY, HOWEVER, I THINK IT IS OWING TO THE
COURT ITSELF, TO THE COURTS BELOW, AND TO BOTH LITIGANTS, TO HEAR AND
DECIDE THE CONTROVERSIAL ORDERS WITHOUT DELAY.  ANY DENIAL OF THIS
MOTION OR CONTINUANCE OF THE STAY SHOULD BE CONDITIONED UPON A
SHORTENING OF THE TIME OF ALL PARTIES AND AN ARGUMENT OF THE CASES ON
THE MERITS WITHIN TWO WEEKS, DEFERRING THE COURT'S ADJOURNMENT UNTIL
THE CONTROVERSY IS FINALLY CLEARED UP.  IF THE COURT OF APPEALS IS
WRONG, WE SHOULD PROMPTLY VINDICATE THE OFFICIALS INVOLVED.  IF THAT
COURT IS RIGHT, WE SHOULD NOT WAVER IN UPHOLDING ITS HAND. 

I WITHHOLD MY ASSENT FROM THE PER CURIAM OPINION OF TODAY. 
..END :






RADIO CORP. V. UNITED STATES, 341 U.S. 412 


NO. 565.  ARGUED MARCH 26-27, 1951.  - DECIDED MAY 28, 1951.  - 95
F.SUPP.  660, AFFIRMED. 


AFTER EXTENSIVE HEARINGS ON, AND DEMONSTRATIONS OF, THREE DIFFERENT
METHODS OF COLOR TELEVISION TRANSMISSION, THE FEDERAL COMMUNICATIONS
COMMISSION ISSUED AN ORDER WHICH, IN EFFECT, PERMITS USE OF THE METHOD
OF COLUMBIA BROADCASTING SYSTEM (CBS) AND EXCLUDES USE OF OTHERS.  THIS
ORDER WAS BASED UPON FINDINGS THAT THE CBS METHOD WAS THE BEST
PRESENTLY AVAILABLE AND HAD REACHED A STATE OF DEVELOPMENT WHICH
JUSTIFIED ITS ACCEPTANCE TO THE EXCLUSION OF OTHERS, THOUGH COLOR
TELECASTS BY THE CBS METHOD COULD NOT BE RECEIVED EITHER IN COLOR OR IN
BLACK AND WHITE ON THE MILLIONS OF EXISTING BLACK AND WHITE RECEIVERS
WITHOUT COSTLY ADAPTATIONS.  SUBSEQUENTLY, THE COMMISSION DECLINED TO
REOPEN THE PROCEEDINGS AT THE REQUEST OF RADIO CORPORATION OF AMERICA
(RCA), WHICH CLAIMED TO HAVE MADE GREAT ADVANCES TOWARD A METHOD OF
COLOR TELEVISION TRANSMISSION WHICH COULD BE RECEIVED IN BLACK AND
WHITE ON EXISTING BLACK AND WHITE RECEIVERS WITHOUT ANY ADAPTATION. 
THE DISTRICT COURT DISMISSED A SUIT BY RCA TO ENJOIN AND SET ASIDE THE
COMMISSION'S ORDER.  HELD: 

1.  THE DISTRICT COURT DID NOT FAIL TO REVIEW THE RECORD AS A WHOLE
IN DETERMINING THAT THE COMMISSION'S ORDER WAS SUPPORTED BY SUBSTANTIAL
EVIDENCE.  PP. 414-416. 

2.  THE DISTRICT COURT DID NOT MISAPPREHEND OR MISAPPLY THE PROPER
JUDICIAL STANDARD IN HOLDING THAT THE COMMISSION'S ORDER WAS NOT
ARBITRARY OR AGAINST THE PUBLIC INTEREST AS A MATTER OF LAW.  PP. 416
420. 

(A)  VIEWING THE RECORD AS A WHOLE, THE COMMISSION DID NOT ERR AS A
MATTER OF LAW IN CONCLUDING THAT THE CBS COLOR METHOD HAD REACHED A
STATE OF DEVELOPMENT WHICH JUSTIFIED ITS ACCEPTANCE TO THE EXCLUSION OF
OTHERS.  PP. 416-419. 

(B)  THE COMMISSION'S DETERMINATION, AFTER HEARING EVIDENCE ON ALL
SIDES, THAT THE CBS METHOD WILL PROVIDE THE PUBLIC WITH COLOR
TELEVISION OF GOOD QUALITY AND THAT TELEVISION VIEWERS SHOULD BE GIVEN
AN OPPORTUNITY TO RECEIVE IT IF THEY SO DESIRE, WAS NOT CAPRICIOUS. 
PP. 419-420. 

(C)  COURTS SHOULD NOT OVERRULE AN ADMINISTRATIVE DECISION MERELY
BECAUSE THEY DISAGREE WITH ITS WISDOM.  P. 420. 

3.  WHETHER THE COMMISSION SHOULD HAVE REOPENED ITS PROCEEDINGS TO
PERMIT RCA TO OFFER PROOF OF NEW DISCOVERIES FOR ITS METHOD WAS A
QUESTION WITHIN THE DISCRETION OF THE COMMISSION; AND THAT DISCRETION
WAS NOT ABUSED.  PP. 420-421. 

RADIO CORPORATION OF AMERICA ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN DIVISION. 

A THREE-JUDGE DISTRICT COURT SUSTAINED AN ORDER OF THE FEDERAL
COMMUNICATIONS COMMISSION PRESCRIBING STANDARDS FOR COLOR TELEVISION
TRANSMISSION.  95 F.SUPP.  660.  ON DIRECT APPEAL TO THIS COURT UNDER
28 U.S.C. SECS. 1253 AND 2101(B), AFFIRMED, P. 421. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RADIO CORPORATION OF AMERICA (RCA) AND TWO OF ITS SUBSIDIARIES
BROUGHT THIS ACTION IN A THREE-JUDGE DISTRICT COURT TO ENJOIN AND SET
ASIDE AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION PRESCRIBING
STANDARDS FOR TRANSMISSION OF COLOR TELEVISION.  FN1  THE EFFECT OF THE
CHALLENGED ORDER WAS TO REJECT A COLOR SYSTEM PROPOSED BY RCA AND TO
ACCEPT ONE PROPOSED BY THE COLUMBIA BROADCASTING SYSTEM (CBS).  FN2
THE BASIS OF RCA'S COMPLAINT WAS THAT THE ORDER HAD BEEN ENTERED
ARBITRARILY AND CAPRICIOUSLY, WITHOUT THE SUPPORT OF SUBSTANTIAL
EVIDENCE, AGAINST THE PUBLIC INTEREST, AND CONTRARY TO LAW.  AFTER
HEARING AND ORAL ARGUMENT, THE DISTRICT COURT ENTERED SUMMARY JUDGMENT
SUSTAINING THE COMMISSION, ONE JUDGE DISSENTING.  FN3  RCA AND THE
OTHER PLAINTIFFS TOOK THIS DIRECT APPEAL UNDER 28 U.S.C. SEC. 1253 AND
SEC. 2101(B). 

AT THE OUTSET WE ARE FACED WITH RCA'S CONTENTION THAT THE DISTRICT
COURT FAILED TO REVIEW THE RECORD AS A WHOLE IN DETERMINING WHETHER THE
COMMISSION'S ORDER WAS SUPPORTED BY SUBSTANTIAL EVIDENCE; IT IS URGED
THAT FOR THIS REASON WE SHOULD SUMMARILY REVERSE AND REMAND THE CASE
FOR FURTHER CONSIDERATION BY THAT COURT.  IF RCA'S PREMISE WERE
CORRECT, THE COURSE WHICH IT SUGGESTS MIGHT BE WHOLLY APPROPRIATE.  FOR
AS POINTED OUT RECENTLY, IN CONSIDERING THE QUESTION OF SUFFICIENCY OF
EVIDENCE TO SUPPORT AN ADMINISTRATIVE ORDER THIS COURT MUST AND DOES
RELY LARGELY ON A FIRST REVIEWING COURT'S CONCLUSION.  UNIVERSAL CAMERA
CORP. V. LABOR BOARD, 340 U.S. 474.  THE PRESENT CASE, HOWEVER, NEED
NOT BE RETURNED FOR FURTHER SCRUTINY BELOW BECAUSE WE ARE CONVINCED
THAT THE REVIEW ALREADY AFFORDED DID NOT FALL SHORT OF THAT WHICH IS
REQUIRED.  THE DISTRICT COURT HEARD ORAL ARGUMENT FOR THREE DAYS AND
DELIBERATED FOR ABOUT FIVE WEEKS BEFORE HANDING DOWN ITS DECISION. 
BOTH THE MAJORITY AND DISSENTING OPINIONS SHOW A FAMILIARITY WITH RCA'S
BASIC CONTENTION (AND THE MINOR ONES AS WELL) THAT COULD HAVE COME ONLY
FROM CAREFUL STUDY OF THE RECORD AS A WHOLE.  TO BE SURE, THERE WAS A
CASUAL STATEMENT IN THE MAJORITY OPINION SUSCEPTIBLE OF THE
INTERPRETATION THAT THE COURT IN REACHING THE DECISION MADE AN
EXAMINATION OF THE RECORD LESS COMPLETE THAN IT SHOULD HAVE BEEN.  FN4
FAIRLY CONSTRUED, HOWEVER, THE REMARK, WHILE PERHAPS UNFORTUNATE, IS
ENTIRELY CONSISTENT WITH THAT CONSCIENTIOUS REVIEW WHICH WE ARE
SATISFIED WAS GIVEN THIS RECORD BY THE DISTRICT COURT.  WE THEREFORE
PASS TO THE QUESTION OF VALIDITY OF THE COMMISSION'S ORDER. 

ALL PARTIES AGREE, AS THEY MUST, THAT GIVEN A JUSTIFIABLE FACT
SITUATION, THE COMMISSION HAS POWER UNDER 47 U.S.C. SEC. 303(C), (E),
(F), (G)  FN5  TO DO PRECISELY WHAT IT DID IN THIS CASE, NAMELY, TO
PROMULGATE STANDARDS FOR TRANSMISSION OF COLOR TELEVISION THAT RESULT
IN REJECTING ALL BUT ONE OF THE SEVERAL PROPOSED SYSTEMS.  MOREOVER, IT
CANNOT BE CONTENDED SERIOUSLY THAT THE COMMISSION IN TAKING SUCH A
COURSE WAS WITHOUT EVIDENTIAL SUPPORT FOR ITS REFUSAL TO ADOPT THE RCA
SYSTEM AT THIS TIME.  FN6  THE REAL ARGUMENT, ADVANCED AT GREAT LENGTH
AND IN MANY DIFFERENT FORMS, BOILS DOWN TO THIS:  VIEWING THE RECORD AS
A WHOLE, THE COMMISSION AS A MATTER OF LAW ERRED IN CONCLUDING THAT THE
CBS COLOR SYSTEM HAD REACHED A STATE OF DEVELOPMENT WHICH JUSTIFIED ITS
ACCEPTANCE TO THE EXCLUSION OF RCA'S AND THAT OF OTHERS.  CONSEQUENTLY,
BEFORE THE COMMISSION, THE DISTRICT COURT AND HERE, RCA'S MAIN ATTEMPT
HAS BEEN TO PERSUADE THAT NO SYSTEM HAS YET BEEN PROVEN WORTHY OF
ACCEPTANCE FOR PUBLIC USE, THAT COMMERCIAL COLOR BROADCASTING MUST BE
POSTPONED AWAITING INVENTIONS THAT WILL ACHIEVE MORE NEARLY PERFECT
RESULTS. 

WE SUSTAIN THE COMMISSION'S POWER TO REJECT THIS POSITION AND HOLD
VALID THE CHALLENGED ORDER, BUTTRESSED AS IT IS BY THE DISTRICT COURT'S
APPROVAL.  TO EXPLAIN OUR CONCLUSION IT IS UNNECESSARY TO REPEAT THE
DETAILED STATEMENT OF FACTS MADE IN THE MAJORITY AND MINORITY OPINIONS
OF THE COMMISSION AND DISTRICT COURT.  FN7  NOR, FOR PRESENT PURPOSES,
IS IT NECESSARY TO ATTEMPT A TRANSLATION OF THE TECHNICAL TERMS
INVENTED TO CARRY MEANINGS IN THE RAPIDLY GROWING TELEVISION INDUSTRY. 
IT WILL SUFFICE TO GIVE THE FOLLOWING BRIEF SUMMARY OF THE BACKGROUND
OF THE COMMISSION'S FINDINGS AND WHAT WAS FOUND: 

STANDARDS FOR BLACK AND WHITE TELEVISION TRANSMISSION WERE FIRST
PROMULGATED BY THE COMMISSION IN 1941.  RCA'S COMPLAINT ALLEGES, AND
ALL APPARENTLY AGREE, THAT "THE QUALITY OF THE PRESENT (BLACK AND
WHITE) SERVICE, THE IMPROVEMENTS AND REDUCTIONS IN PRICE TO THE PUBLIC
THAT HAVE BEEN MADE, THE INCREDIBLE EXPANSION OF THE INDUSTRY AS A
WHOLE, ARE ALL DUE TO THE FACT THAT MANUFACTURERS COULD BUILD UPON A
SINGLE SET OF LONG-RANGE HIGH-QUALITY STANDARDS."  FN8  FROM 1941 UNTIL
NOW THE COMMISSION HAS BEEN ENGAGED IN CONSIDERATION OF PLANS AND
PROPOSALS LOOKING TOWARD PROMULGATION OF A SINGLE SET OF COLOR
STANDARDS.  FN9  CBS APPARENTLY MADE QUICKER PROGRESS IN DEVELOPING AN
ACCEPTABLE SYSTEM THAN DID OTHERS.  FN10  IT WAS SOON ATTACKED,
HOWEVER, ON THE GROUND THAT IT WAS UTILIZING OLD KNOWLEDGE HIGHLY
USEFUL IN THE REALM OF THE PHYSICAL SCIENCES AND MECHANICAL PRACTICES
BUT INCONGRUOUS IN THE NEW FIELDS OF ELECTRONICS OCCUPIED BY
TELEVISION.  THIS IS STILL THE CORE OF THE OBJECTION TO THE CBS SYSTEM,
TOGETHER WITH THE OBJECTION THAT EXISTING RECEIVING SETS ARE NOT
CONSTRUCTED IN SUCH A WAY THAT THEY CAN, WITHOUT CONSIDERABLE
ADJUSTMENTS, RECEIVE CBS COLOR BROADCASTS EITHER IN COLOR OR BLACK AND
WHITE.  THE FACT THAT ADJUSTMENTS ARE REQUIRED BEFORE A CBS COLOR
BROADCAST CAN BE RECEIVED IN BLACK AND WHITE ON EXISTING SETS MAKES
THIS SYSTEM "INCOMPATIBLE" WITH THE MILLIONS OF TELEVISION RECEIVERS
NOW IN THE HANDS OF THE PUBLIC. 

THERE IS NO DOUBT THAT A "COMPATIBLE" COLOR TELEVISION SYSTEM WOULD
BE DESIRABLE.  RECOGNITION OF THIS FACT SEEMS TO BE THE CONTROLLING
REASON WHY THE COMMISSION DID NOT LONG AGO APPROVE THE "INCOMPATIBLE"
CBS SYSTEM.  IN THE PAST, IT HAS POSTPONED ADOPTION OF STANDARDS WITH
THE HOPE THAT A SATISFACTORY "COMPATIBLE" COLOR TELEVISION SYSTEM WOULD
BE DEVELOPED.  BUT THIS TIME, IN LIGHT OF PREVIOUS EXPERIENCE, THE
COMMISSION THOUGHT THAT FURTHER DELAY IN MAKING COLOR AVAILABLE WAS TOO
HIGH A PRICE TO PAY FOR POSSIBLE "COMPATIBILITY" IN THE FUTURE, DESPITE
RCA'S CLAIM THAT IT WAS ON THE VERGE OF DISCOVERING AN ACCEPTABLE
"COMPATIBLE" SYSTEM. 

THE COMMISSION'S SPECIAL FAMILIARITY WITH THE PROBLEMS INVOLVED IN
ADOPTING STANDARDS FOR COLOR TELEVISION IS AMPLY ATTESTED BY THE
RECORD.  IT HAS DETERMINED AFTER HEARING EVIDENCE ON ALL SIDES THAT THE
CBS SYSTEM WILL PROVIDE THE PUBLIC WITH COLOR OF GOOD QUALITY AND THAT
TELEVISION VIEWERS SHOULD BE GIVEN AN OPPORTUNITY TO RECEIVE IT IF THEY
SO DESIRE.  FN11  THIS DETERMINATION CERTAINLY CANNOT BE HELD
CAPRICIOUS.  IT IS TRUE THAT THE CHOICE BETWEEN ADOPTING STANDARDS NOW
OR AT A LATER DATE WAS NOT FREE FROM DIFFICULTIES.  MOREOVER, THE
WISDOM OF THE DECISION MADE CAN BE CONTESTED AS IS SHOWN IN THE
DISSENTING OPINIONS OF TWO COMMISSIONERS.  BUT COURTS SHOULD NOT
OVERRULE AN ADMINISTRATIVE DECISION MERELY BECAUSE THEY DISAGREE WITH
ITS WISDOM.  FN12  WE CANNOT SAY THE DISTRICT COURT MISAPPREHENDED OR
MISAPPLIED THE PROPER JUDICIAL STANDARD IN HOLDING THAT THE
COMMISSION'S ORDER WAS NOT ARBITRARY OR AGAINST THE PUBLIC INTEREST AS
A MATTER OF LAW.  FN13 

WHETHER THE COMMISSION SHOULD HAVE REOPENED ITS PROCEEDINGS TO PERMIT
RCA TO OFFER PROOF OF NEW DISCOVERIES FOR ITS SYSTEM WAS A QUESTION
WITHIN THE DISCRETION OF THE COMMISSION WHICH WE FIND WAS NOT ABUSED. 
FN14  WE HAVE CONSIDERED OTHER MINOR CONTENTIONS MADE BY RCA BUT ARE
SATISFIED WITH THE WAY THE DISTRICT COURT DISPOSED OF THEM. 

THE DISTRICT COURT'S JUDGMENT SUSTAINING THE ORDER OF THE COMMISSION
IS AFFIRMED. 

FN1  THE SUBSIDIARIES ARE THE NATIONAL BROADCASTING CO. AND RCA
VICTOR DISTRIBUTING CORP. LATER, OTHER PARTIES WERE PERMITTED OVER THE
COMMISSION'S OBJECTION TO INTERVENE IN SUPPORT OF RCA'S POSITION.  THE
COLUMBIA BROADCASTING SYSTEM (CBS) INTERVENED AS A PARTY DEFENDANT. 

FN2  THE ORDER ALSO REJECTED A SYSTEM PROPOSED BY COLOR TELEVISION,
INC., WHICH IS NOT A PARTY TO THIS LITIGATION. 

FN3  95 F.SUPP.  660(N.D. ILL.). 

FN4  "AFTER LISTENING TO MANY HOURS OF ORAL ARGUMENT BY ABLE COUNSEL
REPRESENTING THE RESPECTIVE PARTIES, WE FORMED SOME RATHER DEFINITE
IMPRESSIONS RELATIVE TO THE MERITS OF THE ORDER, AS WELL AS THE
PROCEEDINGS BEFORE THE COMMISSION UPON WHICH IT RESTS.  AND OUR READING
AND STUDY OF THE NUMEROUS AND VOLUMINOUS BRIEFS WITH WHICH WE HAVE BEEN
FAVORED HAVE NOT ALTERED OR REMOVED THOSE IMPRESSIONS.  ALSO, IN
STUDYING THE CASE, WE HAVE BEEN UNABLE TO FREE OUR MINDS OF THE
QUESTION AS TO WHY WE SHOULD DEVOTE THE TIME AND ENERGY WHICH THE
IMPORTANCE OF THE CASE MERITS, REALIZING AS WE MUST THAT THE
CONTROVERSY CAN ONLY BE FINALLY TERMINATED BY A DECISION OF THE SUPREME
COURT.  THIS IS SO BECAUSE ANY DECISION WE MAKE IS APPEALABLE TO THAT
COURT AS A MATTER OF RIGHT AND WE WERE INFORMED DURING ORAL ARGUMENT,
IN NO UNCERTAIN TERMS, THAT WHICH OTHERWISE MIGHT BE EXPECTED, THAT IS,
THAT THE AGGRIEVED PARTY OR PARTIES WILL IMMEDIATELY APPEAL.  IN OTHER
WORDS, THIS IS LITTLE MORE THAN A PRACTICE SESSION WHERE THE PARTIES
PREPARE AND TEST THEIR AMMUNITION FOR THE BIG BATTLE AHEAD."  95
F.SUPP.  AT 664. 

FN5  47 U.S.C. SEC. 303:  "  ...  (THE) COMMISSION  ...  AS PUBLIC
CONVENIENCE, INTEREST, OR NECESSITY REQUIRES, SHALL - 

     . .         .         .         . 

"(C)  ASSIGN BANDS OF FREQUENCIES TO THE VARIOUS CLASSES OF STATIONS,
AND ASSIGN FREQUENCIES FOR EACH INDIVIDUAL STATION AND DETERMINE THE
POWER WHICH EACH STATION SHALL USE AND THE TIME DURING WHICH IT MAY
OPERATE; 

     .         .         .         .         . 

"(E) REGULATE THE KIND OF APPARATUS TO BE USED WITH RESPECT TO ITS
EXTERNAL EFFECTS AND THE PURITY AND SHARPNESS OF THE EMISSIONS FROM
EACH STATION AND FROM THE APPARATUS THEREIN; 

"(F)  MAKE SUCH REGULATIONS NOT INCONSISTENT WITH LAW AS IT MAY DEEM
NECESSARY TO PREVENT INTERFERENCE BETWEEN STATIONS AND TO CARRY OUT THE
PROVISIONS OF THIS CHAPTER  ... 

"(G)  STUDY NEW USES FOR RADIO, PROVIDE FOR EXPERIMENTAL USES OF
FREQUENCIES, AND GENERALLY ENCOURAGE THE LARGER AND MORE EFFECTIVE USE
OF RADIO IN THE PUBLIC INTEREST." 

FN6  THE COMMISSION UNANIMOUSLY BELIEVED THAT CBS HAD THE BEST SYSTEM
PRESENTLY AVAILABLE, ALTHOUGH TWO COMMISSIONERS DISSENTED ON OTHER
GROUNDS.  THE RELATIVE MERITS AND DEMERITS OF THE RCA AND CBS SYSTEMS
WERE SUMMARIZED AS FOLLOWS: 

"(THE) RCA SYSTEM (IS) DEFICIENT IN THE FOLLOWING RESPECTS: 

"(A)  THE COLOR FIDELITY OF THE RCA PICTURE IS NOT SATISFACTORY. 

"(B)  THE TEXTURE OF THE COLOR PICTURE IS NOT SATISFACTORY. 

"(C)  THE RECEIVING EQUIPMENT UTILIZED BY THE RCA SYSTEM IS
EXCEEDINGLY COMPLEX. 

"(D)  THE EQUIPMENT UTILIZED AT THE STATION IS EXCEEDINGLY COMPLEX. 

"(E)  THE RCA COLOR SYSTEM IS MUCH MORE SUSCEPTIBLE TO CERTAIN KINDS
OF INTERFERENCE THAN THE PRESENT MONOCHROME SYSTEM OR THE CBS SYSTEM. 

"(F)  THERE IS NOT ADEQUATE ASSURANCE IN THE RECORD THAT RCA COLOR
PICTURES CAN BE TRANSMITTED OVER THE 2.7 MEGACYCLE COAXIAL CABLE
FACILITIES. 

"(G)  THE RCA SYSTEM HAS NOT MET THE REQUIREMENTS OF SUCCESSFUL FIELD
TESTING. 

     .   .         .         .         . 

"(THE) CBS SYSTEM PRODUCES A COLOR PICTURE THAT IS MOST SATISFACTORY
FROM THE POINT OF VIEW OF TEXTURE, COLOR FIDELITY AND CONTRAST.   ...
(RECEIVERS) AND STATION EQUIPMENT ARE SIMPLE TO OPERATE AND  ...
RECEIVERS WHEN PRODUCED ON A MASS MARKETING BASIS SHOULD BE WITHIN THE
ECONOMIC REACH OF THE GREAT MASS OF PURCHASING PUBLIC.   ...  (EVEN)
WITH PRESENT EQUIPMENT THE CBS SYSTEM CAN PRODUCE COLOR PICTURES OF
SUFFICIENT BRIGHTNESS WITHOUT OBJECTIONABLE FLICKER TO BE ADEQUATE FOR
HOME USE AND  ...  THE EVIDENCE CONCERNING LONG PERSISTENCE PHOSPHORS
SHOWS THAT THERE IS A SPECIFIC METHOD AVAILABLE FOR STILL FURTHER
INCREASING BRIGHTNESS WITH NO OBJECTIONABLE FLICKER.  FINALLY,  ...
WHILE THE CBS SYSTEM HAS LESS GEOMETRIC RESOLUTION THAN THE PRESENT
MONOCHROME SYSTEM THE ADDITION OF COLOR TO THE PICTURE MORE THAN
OUTWEIGHS THE LOSS IN GEOMETRIC RESOLUTION SO FAR AS APPARENT
DEFINITION IS CONCERNED."  SECOND REPORT OF THE COMMISSION, OCTOBER 10,
1950, 1 PIKE & FISCHER RADIO REG. (P. & F.), $* 91:26, PP. 91:441-442. 

FN7  THE FACTS FOUND BY THE COMMISSION APPEAR IN TWO REPORTS ON COLOR
TELEVISION ISSUES.  FIRST REPORT OF THE COMMISSION, SEPTEMBER 1, 1950,
1 P. & F. $* 91:24, P. 91:261; SECOND REPORT OF THE COMMISSION, OCTOBER
10, 1950, 1 P. & F. $* 91:26, P. 91:441.  THE DISTRICT COURT DESCRIBED
THE PROCEEDINGS BEFORE THE COMMISSION AS FOLLOWS:  "THE HEARING,
PARTICIPATED IN BY ALL MEMBERS OF THE COMMISSION, COMMENCED SEPTEMBER
26, 1949 AND ENDED MAY 26, 1950.  IN ALL, FIFTY-THREE DIFFERENT
WITNESSES WERE HEARD AND 265 EXHIBITS RECEIVED.  THE TRANSCRIPT OF THE
HEARING COVERS 9717 PAGES.  DURING THE PERIOD FROM NOVEMBER 22, 1949 TO
FEBRUARY 6, 1950, EXTENSIVE FIELD TESTS WERE MADE OF THE THREE SYSTEMS
(RCA, CBS, COLOR TELEVISION, INC.) PROPOSED.  PROGRESS REPORTS
CONCERNING THESE TESTS WERE FILED WITH THE COMMISSION BY THE THREE
PROPONENTS DURING DECEMBER 1949 AND JANUARY 1950.  COMPARATIVE
DEMONSTRATIONS OF THE THREE PROPOSED SYSTEMS WERE MADE ON DIFFERENT
DATES UNTIL MAY 17, 1950."  95 F.SUPP.  AT 665.    FN9  SEE THE
PARTICULARLY INTERESTING HISTORICAL SUMMARY OF THESE EFFORTS IN
COMMISSIONER JONES' DISSENT TO THE FIRST REPORT OF THE COMMISSION,
SEPTEMBER 1, 1950, 1 P. & F. $* 91:24, PP. 91:346-447.  HIS VIEW WAS
THAT COLOR TELEVISION STANDARDS SHOULD HAVE BEEN PROMULGATED LONG
BEFORE THEY WERE. 

FN10  SEE NOTE 6, SUPRA. 

FN11  SEE NOTE 6, SUPRA. 

FN12  NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 224. 

FN13  UNIVERSAL CAMERA CORP. V. LABOR BOARD, 340 U.S. 474, 490-491. 

FN14  SEE UNITED STATES V. PIERCE AUTO LINES, 327 U.S. 515, 534-535. 
WITH RESPECT TO REOPENING THE RECORD, THE COMMISSION SAID IN PART:  "
...  (A) NEW TELEVISION SYSTEM IS NOT ENTITLED TO A HEARING OR A
REOPENING OF A HEARING SIMPLY ON THE BASIS OF A PAPER PRESENTATION.  IN
THE RADIO FIELD MANY THEORETICAL SYSTEMS EXIST AND CAN BE DESCRIBED ON
PAPER BUT IT IS A LONG STEP FROM THIS PROCESS TO SUCCESSFUL OPERATION. 
THERE CAN BE NO ASSURANCE THAT A SYSTEM IS GOING TO WORK UNTIL THE
APPARATUS HAS BEEN BUILT AND HAS BEEN TESTED.  NONE OF THE NEW SYSTEMS
OR IMPROVEMENTS IN SYSTEMS MEET THESE TESTS SO AS TO WARRANT REOPENING
OF THE HEARING.  ... 

"THE COMMISSION DOES NOT IMPLY THAT THERE IS NO FURTHER ROOM FOR
EXPERIMENTATION.  ...  MANY OF THE RESULTS OF SUCH EXPERIMENTATION CAN
UNDOUBTEDLY BE ADDED WITHOUT AFFECTING EXISTING RECEIVERS.  AS TO
OTHERS SOME OBSOLESCENCE OF EXISTING RECEIVERS MAY BE INVOLVED IF THE
CHANGES ARE ADOPTED.  IN THE INTEREST OF STABILITY THIS LATTER TYPE OF
CHANGE WILL NOT BE ADOPTED UNLESS THE IMPROVEMENT IS SUBSTANTIAL IN
NATURE, WHEN COMPARED TO THE AMOUNT OF DISLOCATION INVOLVED.  BUT WHEN
SUCH AN IMPROVEMENT DOES COME ALONG, THE COMMISSION CANNOT REFUSE TO
CONSIDER IT MERELY BECAUSE THE OWNERS OF EXISTING RECEIVERS MIGHT BE
COMPELLED TO SPEND ADDITIONAL MONEY TO CONTINUE RECEIVING PROGRAMS. 

"  ...  (ANY) IMPROVEMENT THAT RESULTS FROM THE EXPERIMENTATION MIGHT
FACE THE PROBLEM OF BEING INCOMPATIBLE WITH THE PRESENT MONOCHROME
SYSTEM OR THE COLOR SYSTEM WE ARE ADOPTING TODAY.  IN THAT EVENT, THE
NEW COLOR SYSTEM OR OTHER IMPROVEMENT WILL HAVE TO SUSTAIN THE BURDEN
OF SHOWING THAT THE IMPROVEMENT WHICH RESULTS IS SUBSTANTIAL ENOUGH TO
BE WORTH WHILE WHEN COMPARED TO THE AMOUNT OF DISLOCATION INVOLVED TO
RECEIVERS THEN IN THE HANDS OF THE PUBLIC."  SECOND REPORT OF THE
COMMISSION, OCTOBER 10, 1950, 1 P. & F. $* 91:26, PP. 91:445-446. 

MR. JUSTICE FRANKFURTER, DUBITANTE. 

SINCE I AM NOT ALONE IN ENTERTAINING DOUBTS ABOUT THIS CASE THEY HAD
BETTER BE STATED.  THE ULTIMATE ISSUE IS THE FUNCTION OF THIS COURT IN
REVIEWING AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION, ADOPTED
OCTOBER 10, 1950, WHEREBY IT PROMULGATED STANDARDS FOR THE TRANSMISSION
OF COLOR TELEVISION.  THE SIGNIFICANCE OF THESE STANDARDS LIES IN THE
SANCTION OF A SYSTEM OF "INCOMPATIBLE" COLOR TELEVISION, THAT IS, A
SYSTEM REQUIRING A CHANGE IN EXISTING RECEIVERS FOR THE RECEPTION OF
BLACK AND WHITE AS WELL AS COLORED PICTURES.  THE SYSTEM SANCTIONED BY
THE COMMISSION'S ORDER WILL REQUIRE THE ADDITION OF AN APPOPRIATE
GADGET TO THE MILLIONS OF OUTSTANDING RECEIVING SETS AT A VARIOUSLY
ESTIMATED, BUT IN ANY EVENT SUBSTANTIAL, COST.  FROM THE POINT OF VIEW
OF THE PUBLIC INTEREST, IT IS HIGHLY DESIRABLE TO HAVE A COLOR
TELEVISION SYSTEM THAT IS COMPATIBLE.  THE COMMISSION'S ORDER
SANCTIONING AN INCOMPATIBLE SYSTEM IS BASED NOT ON THE SCIENTIFIC
UNATTAINABILITY OF A COMPATIBLE SYSTEM, NOR EVEN ON A FORECAST THAT ITS
FEASIBILITY IS REMOTE.  IT RESTS ON THE DETERMINATION THAT INASMUCH AS
COMPATIBILITY HAS NOT YET BEEN ACHIEVED, WHILE A WORKABLE INCOMPATIBLE
SYSTEM HAS PROVEN ITSELF, SUCH A SYSTEM, HOWEVER INTRINSICALLY
UNSATISFACTORY, OUGHT NO LONGER TO BE WITHHELD FROM THE PUBLIC. 

AFTER HEARINGS ON THE COMMISSION'S PROPOSALS WERE CLOSED, THE RADIO
CORPORATION OF AMERICA, PERSISTENT PROMOTER OF A COMPATIBLE SYSTEM,
SUGGESTED TO THE COMMISSION FURTHER CONSIDERATION OF THE PROGRESS MADE
AFTER THE COMMISSION HAD TAKEN THE MATTER UNDER ADVISEMENT IN MAY,
1950.  TO BE SURE, THIS PROFFER OF RELEVANT INFORMATION CONCERNING
PROGRESS TOWARD THE DESIRED GOAL WAS MADE BY AN INTERESTED PARTY.  BUT
WITHIN THE COMMISSION ITSELF THE NEED FOR FURTHER LIGHT WAS URGED IN
VIEW OF THE RAPID DEVELOPMENT THAT HAD BEEN MADE SINCE THE COMMISSION'S
HEARINGS GOT UNDER WAY.  THE HEART OF THE CONTROVERSY WAS THUS PUT BY
COMMISSION HENNOCK:  "IT IS OF VITAL IMPORTANCE TO THE FUTURE OF
TELEVISION THAT WE MAKE EVERY EFFORT TO GAIN THE TIME NECESSARY FOR
FURTHER EXPERIMENTATION LEADING TO THE PERFECTION OF A COMPATIBLE COLOR
TELEVISION SYSTEM."  THE COMMISSION DID NOT RULE OUT REASONABLE HOPE
FOR THE EARLY ATTAINMENT OF COMPATIBILITY.  INDEED, IT GAVE GROUND FOR
BELIEVING THAT SUCCESS OF EXPERIMENTATION TO THAT END IS IMMINENT.  BUT
IT SHUT OFF FURTHER INQUIRY INTO DEVELOPMENTS IT RECOGNIZED HAD GROWN
APACE BECAUSE IN ITS "SOUND DISCRETION" IT CONCLUDED THAT "A DELAY IN
REACHING A DETERMINATION WITH RESPECT TO THE ADOPTION OF STANDARDS FOR
COLOR TELEVISION SERVICE  ...  WOULD NOT BE CONDUCIVE TO THE ORDERLY
AND EXPEDITIOUS DISPATCH OF THE COMMISSION'S BUSINESS AND WOULD NOT
BEST SERVE THE ENDS OF JUSTICE  ...  " 

THE REAL QUESTION, AS I HAVE INDICATED, IS WHETHER THIS DETERMINATION
OF THE COMMISSION, CONSIDERING ITS NATURE AND ITS CONSEQUENCES, IS
BEYOND JUDICIAL SCRUTINY. 

I AM NO FRIEND OF JUDICIAL INTRUSION INTO THE ADMINISTRATIVE
PROCESS.  I DO NOT BELIEVE IN A CONSTRUCTION OF THE COMMUNICATIONS ACT
THAT WOULD CRAMP THE BROAD POWERS OF THE COMMUNICATIONS COMMISSION. 
SEE NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190.  I HAVE
NO DOUBT THAT IF CONGRESS CHOSE TO WITHDRAW ALL COURT REVIEW FROM THE
COMMISSION'S ORDERS IT WOULD BE CONSTITUTIONALLY FREE TO DO SO.  SEE
STARK V. WICKARD, 321 U.S. 288, 312.  AND I DEEM IT ESSENTIAL TO THE
VITALITY OF THE ADMINISTRATIVE PROCESS THAT, EVEN WHEN SUBJECT TO
JUDICIAL REVIEW, THE COMMISSION BE ALLOWED TO EXERCISE ITS POWERS
UNHAMPERED BY THE RESTRICTIVE PROCEDURES APPROPRIATE FOR LITIGATION IN
THE COURTS.  SEE FEDERAL COMMUNICATIONS COMM'N V. NATIONAL BROADCASTING
CO., 319 U.S. 239, 248.  BUT SO LONG AS THE CONGRESS HAS DEEMED IT
RIGHT TO SUBJECT THE ORDERS OF THE COMMISSION TO REVIEW BY THIS COURT,
THE DUTY OF ANALYZING THE ESSENTIAL ISSUES OF AN ORDER CANNOT BE
ESCAPED BY TOO EASY RELIANCE ON THE CONCLUSIONS OF A DISTRICT COURT OR
ON THE INDISPUTABLE FORMULA THAT AN EXERCISE OF DISCRETION BY THE
COMMISSION IS NOT TO BE DISPLACED BY A CONTRARY EXERCISE OF JUDICIAL
DISCRETION. 

WHAT MAY BE AN OBVIOUS MATTER OF JUDGMENT FOR THE COMMISSION IN ONE
SITUATION MAY SO PROFOUNDLY AFFECT THE PUBLIC INTEREST IN ANOTHER AS
NOT TO BE A MERE EXERCISE OF CONVENTIONAL DISCRETION.  DETERMINATIONS
BY THE COMMISSION ARE NOT ABSTRACT DETERMINATIONS.  WE ARE NOT HERE
CALLED UPON TO PASS ON THE ABSTRACT QUESTION WHETHER THE COMMISSION MAY
REFUSE TO RECONSIDER A PROBLEM BEFORE IT ALTHOUGH ENLIGHTENING NEW
EVIDENCE IS PROMISED.  WE ARE FACED WITH A PARTICULAR ORDER OF GREAT
SIGNIFICANCE.  IT IS NOT THE EFFECT OF THIS ORDER UPON COMMERCIAL
RIVALRIES THAT GIVES IT MOMENT.  THE COMMUNICATIONS ACT WAS NOT
DESIGNED AS A CODE FOR THE ADJUSTMENT OF CONFLICTING PRIVATE
INTERESTS.  IT IS THE FACT THAT THE ORDER ORIGINATES COLOR TELEVISION,
WITH FAR-REACHING IMPLICATIONS TO THE PUBLIC INTEREST. 

THE ASSUMPTION UNDERLYING OUR SYSTEM OF REGULATION IS THAT THE
NATIONAL INTEREST WILL BE FURTHERED BY THE FULLEST POSSIBLE USE OF
COMPETITION.  AT SOME POINT, OF COURSE, THE COMMISSION MUST FIX
STANDARDS LIMITING COMPETITION.  BUT ONCE THOSE STANDARDS ARE FIXED,
THE INCENTIVE FOR IMPROVEMENT IS RELAXED.  IT IS OBVIOUS THAT THE MONEY
SPENT BY THE PUBLIC TO ADAPT AND CONVERT THE MILLIONS OF SETS NOW IN
USE MAY WELL MAKE THE COMMISSION RELUCTANT TO SANCTION NEW AND BETTER
STANDARDS FOR COLOR PICTURES IF THOSE STANDARDS WOULD OUTMODE RECEIVING
SETS ADAPTED TO THE SYSTEM ALREADY IN USE.  AND EVEN IF THE COMMISSION
IS WILLING TO ADOPT A SECOND, INCONSISTENT SET OF COLOR TELEVISION
STANDARDS SOMETIME IN THE FUTURE, THE RESULT WILL BE ECONOMIC WASTE ON
A VAST SCALE. 

AND ALL TO WHAT END?  AND FOR WHAT OVERRIDING GAIN?  OF COURSE THE
COMMISSION DOES NOT HAVE TO WAIT FOR THE MILLENNIUM.  OF COURSE IT DOES
NOT HAVE TO WITHHOLD COLOR PICTURES FROM THE AMERICAN PUBLIC
INDEFINITELY BECAUSE IMPROVEMENTS IN COLOR TRANSMISSION WILL STEADILY
BE PERFECTED.  THAT IS NOT WHAT IS INVOLVED HERE.  WHAT THE COMMISSION
HERE DECIDED IS THAT IT COULD NOT WAIT, OR THE AMERICAN PUBLIC COULD
NOT WAIT, A LITTLE WHILE LONGER, WITH EVERY PROSPECT OF A DEVELOPMENT
WHICH, WHEN IT DOES COME, CONCEDEDLY WILL PROMOTE THE PUBLIC INTEREST
MORE THAN THE INCOMPATIBLE SYSTEM NOW AUTHORIZED.  SURELY WHAT
CONSTITUTES THE PUBLIC INTEREST ON AN ISSUE LIKE THIS IS NOT ONE OF
THOSE EXPERT MATTERS AS TO WHICH COURTS SHOULD PROPERLY BOW TO THE
COMMISSION'S EXPERTNESS.  IN ANY EVENT, NOTHING WAS SUBMITTED TO US ON
ARGUMENT, NOR DO I FIND ANYTHING IN THE COMMISSION'S BRIEF OF 150
PAGES, WHICH GIVES ANY HINT AS TO THE PUBLIC INTEREST THAT BROOKS NO
DELAY IN GETTING COLOR TELEVISION EVEN THOUGH THE METHOD BY WHICH IT
WILL GET IT IS INTRINSICALLY UNDESIRABLE, INEVITABLY LIMITS THE
POSSIBILITIES OF AN IMPROVED SYSTEM OR, IN ANY EVENT, LEADS TO
POTENTIAL GREAT ECONOMIC WASTE.  THE ONLY BASIS FOR THIS HASTE IS THAT
THE DESIRED BETTER METHOD HAS NOT YET PROVED ITSELF AND IN VIEW OF PAST
FAILURES THERE IS NO GREAT ASSURANCE OF EARLY SUCCESS.  AND SO, SINCE A
SYSTEM OF COLOR TELEVISION, THOUGH WITH OBVIOUS DISADVANTAGES, IS
AVAILABLE, THE REQUISITE PUBLIC INTEREST WHICH MUST CONTROL THE
COMMISSION'S AUTHORIZATION IS ESTABLISHED.  I DO NOT AGREE. 

ONE OF THE MORE IMPORTANT SOURCES OF THE RETARDATION OR REGRESSION OF
CIVILIZATION IS MAN'S TENDENCY TO USE NEW INVENTIONS INDISCRIMINATELY
OR TOO HURRIEDLY WITHOUT ADEQUATE REFLECTION OF LONG-RANGE
CONSEQUENCES.  NO DOUBT THE RADIO ENLARGES MAN'S HORIZON.  BUT BY
MAKING HIM A CAPTIVE LISTENER IT MAY MAKE FOR SPIRITUAL
IMPOVERISHMENT.  INDISCRIMINATE USE OF THE RADIO DENIES HIM THE
OPPORTUNITIES FOR REFLECTION AND FOR SATISFYING THOSE NEEDS OF
WITHDRAWAL OF WHICH SILENT PRAYER IS ONLY ONE MANIFESTATION.  IT IS AN
UNCRITICAL ASSUMPTION THAT EVERY FORM OF REPORTING OR COMMUNICATION IS
EQUALLY ADAPTABLE TO EVERY SITUATION.  THUS, THERE MAY BE A MODE OF
WHAT IS CALLED REPORTING WHICH MAY DEFEAT THE PURSUIT OF JUSTICE. 

DOUBTLESS, TELEVISION MAY FIND A PLACE AMONG THE DEVICES OF
EDUCATION; BUT MUCH LONG-HEADED THOUGHT AND PATIENT EXPERIMENTATION ARE
DEMANDED LEST UNCRITICAL USE MAY LEAD TO HASTY JETTISONING OF HARD-WON
GAINS OF CIVILIZATION.  THE RATIONAL PROCESS OF TRIAL AND ERROR IMPLIES
A WARY USE OF NOVELTY AND A CRITICAL ADOPTION OF CHANGE.  WHEN A
COLLEGE HEAD CAN SERIOUSLY SUGGEST, NOT BY WAY OF IRONY, THAT SOON
THERE WILL BE NO NEED OF PEOPLE BEING ABLE TO READ - THAT ILLITERACY
WILL BE THE SAVING OF WASTEFUL LABOR - ONE GETS AN IDEA OF THE
POSSIBILITIES OF THE NEW BARBARISM PARADING AS SCIENTIFIC PROGRESS. 

MAN FORGETS AT TERRIBLE COST THAT THE ENVIRONMENT IN WHICH AN EVENT
IS PLACED MAY POWERFULLY DETERMINE ITS EFFECT.  DISCLOSURE CONVEYED BY
THE LIMITATIONS AND POWER OF THE CAMERA DOES NOT CONVEY THE SAME THINGS
TO THE MIND AS DISCLOSURE MADE BY THE LIMITATIONS AND POWER OF PEN OR
VOICE.  THE RANGE OF PRESENTATION, THE OPPORTUNITIES FOR DISTORTION,
THE IMPACT ON REASON, THE EFFECT ON THE LOOKER-ON AS AGAINST THE READER
HEARER, VARY; AND THE DIFFERENCES MAY BE VITAL.  JUDGMENT MAY BE
CONFUSED INSTEAD OF ENLIGHTENED.  FEELING MAY BE AGITATED, NOT GUIDED;
REASON DEFLECTED, NOT ENLISTED.  REASON - THE DELIBERATIVE PROCESS -
HAS ITS OWN REQUIREMENTS, MET BY ONE METHOD AND FRUSTRATED BY ANOTHER*
. 

*"BROADCASTING AS AN INFLUENCE ON MEN'S MINDS HAS GREAT
POSSIBILITIES, EITHER OF GOOD OR EVIL.  THE GOOD IS THAT IF
BROADCASTING CAN FIND A SERIOUS AUDIENCE IT IS AN UNRIVALLED MEANS OF
BRINGING VITAL ISSUES TO WIDER UNDERSTANDING.  THE EVIL IS THAT
BROADCASTING IS CAPABLE OF INCREASING PERHAPS THE MOST SERIOUS OF ALL
DANGERS WHICH THREATEN DEMOCRACY AND FREE INSTITUTIONS TODAY - THE
DANGER OF PASSIVITY - OF ACCEPTANCE BY MASSES OF ORDERS GIVEN TO THEM
AND OF THINGS SAID TO THEM.  BROADCASTING HAS IN ITSELF A TENDENCY TO
ENCOURAGE PASSIVITY, FOR LISTENING AS SUCH, IF ONE DOES NO MORE, IS A
PASSIVE OCCUPATION.  TELEVISION MAY BE FOUND TO HAVE THIS DANGER OF
PASSIVITY IN EVEN STRONGER FORM."  REPORT OF THE BROADCASTING
COMMITTEE, 1949(CMD.  8116, 1951) 75. 

WHAT EVIL WOULD BE ENCOURAGED, WHAT GOOD RETARDED BY DELAY?  BY
HASTE, WOULD MORALITY BE ENHANCED, INSIGHT DEEPENED, AND JUDGMENT
ENLIGHTENED?  IS IT EVEN ECONOMICALLY ADVANTAGEOUS TO GIVE GOVERNMENTAL
SANCTION TO COLOR TELEVISION AT THE FIRST PRACTICABLE MOMENT, OR WILL
IT NOT IN FACT SERVE AS AN ADDED DRAIN ON RAW MATERIALS FOR WHICH THE
NATIONAL SECURITY HAS MORE EXIGENT NEEDS? 

FINALLY, WE ARE TOLD THAT THE COMMISSION'S DETERMINATION AS TO THE
LIKELY PROSPECT OF EARLY ATTAINMENT OF COMPATIBILITY IS A MATTER WITHIN
ITS COMPETENCE AND NOT SUBJECT TO COURT REVIEW.  BUT PROPHECY OF
TECHNOLOGICAL FEASIBILITY IS HARDLY IN THE DOMAIN OF EXPERTNESS SO LONG
AS SCIENTIFIC AND TECHNOLOGICAL BARRIERS DO NOT MAKE THE PROSPECT
FANCIFUL.  IN ANY EVENT, THIS COURT IS NOT WITHOUT EXPERIENCE IN
UNDERSTANDING THE NATURE OF SUCH COMPLICATED ISSUES.  WE HAVE HAD
OCCASION BEFORE TO CONSIDER COMPLEX SCIENTIFIC MATTERS.  TELEPHONE
CASES, 126 U.S. 1; MCCORMICK V. GRAHAM'S ADM'R, 129 U.S. 1(HARVESTER);
CORONA CO. V. DOVAN CORP., 276 U.S. 358(IMPROVEMENT IN VULCANIZATION OF
RUBBER); DEFOREST RADIO CO. V. GENERAL ELECTRIC CO., 283 U.S. 664(HIGH
VACUUM DISCHARGE TUBE); RADIO CORPORATION V. RADIO ENGINEERING
LABORATORIES, 293 U.S. 1(AUDION OSCILLATOR); MARCONI WIRELESS CO. V.
UNITED STATES, 320 U.S. 1(WIRELESS TELEGRAPHY IMPROVEMENT); AND
UNIVERSAL OIL PRODUCTS CO. V. GLOBE OIL & RFG.  CO., 322 U.S. 471(OIL
CRACKING PROCESS).    EXPERIENCE HAS MADE IT AXIOMATIC TO ESCHEW
DOGMATISM IN PREDICTING THE IMPOSSIBILITY OF IMPORTANT DEVELOPMENTS IN
THE REALMS OF SCIENCE AND TECHNOLOGY.  ESPECIALLY WHEN THE INCENTIVE IS
GREAT, INVENTION CAN RAPIDLY UPSET PREVAILING OPINIONS OF FEASIBILITY. 
ONE MAY EVEN GENERALIZE THAT ONCE THE DEADLOCK IN A PARTICULAR FIELD OF
INQUIRY IS BROKEN PROGRESS BECOMES RAPID.  THUS, THE PLASTICS INDUSTRY
DEVELOPED APACE AFTER A BOTTLENECK HAD BEEN BROKEN IN THE CHEMISTRY OF
RUBBERS.  ONCE THE EFFICACY OF SULFANILAMIDE WAS CLEARLY ESTABLISHED,
COMPETENT INVESTIGATORS WERE AT WORK EXPERIMENTING WITH THOUSANDS OF
COMPOUNDS, AND NEW AND BETTER ANTIBIOTICS BECAME AVAILABLE IN A
CONTINUOUS STREAM.  A GOOD EXAMPLE OF THE RAPID CHANGE OF OPINION THAT
OFTEN OCCURS IN JUDGMENT OF FEASIBILITY IS FURNISHED BY THE CYCLOTRON. 
ONLY A FEW YEARS AGO DISTINGUISHED NUCLEAR PHYSICISTS PROCLAIMED THE
LIMITS ON THE ENERGY TO WHICH PARTICLES COULD BE ACCELERATED BY THE USE
OF A CYCLOTRON.  IT WAS SUGGESTED THAT 12,000,000-VOLT PROTONS WERE THE
MAXIMUM OBTAINABLE.  WITHIN A YEAR THE LIMITATIONS PREVIOUSLY ACCEPTED
WERE CHALLENGED.  AT THE PRESENT TIME THERE ARE, I BELIEVE, IN
OPERATION IN THE UNITED STATES AT LEAST FOUR CYCLOTRONS WHICH
ACCELERATE PROTONS TO ENERGIES OF ABOUT 400,000,000 VOLTS.  ONE NEED
NOT HAVE THE INSIGHT OF A GREAT SCIENTIFIC INVESTIGATOR, NOR THE
RASHNESS OF THE UNTUTORED, TO BE CONFIDENT THAT THE PROGNOSTICATIONS
NOW MADE IN REGARD TO THE FEASIBILITY OF A "COMPATIBLE" COLOR
TELEVISION SYSTEM WILL BE FALSIFIED IN THE VERY NEAR FUTURE. 
..END :




STANDARD OIL CO. V. NEW JERSEY, 341 U.S. 428 


NO. 384.  ARGUED MARCH 5, 1951.  - DECIDED MAY 28, 1951.  - 5 N.J. 281,
74 A.2D 565, AFFIRMED. 


UNDER THE NEW JERSEY ESCHEAT ACT, PROCEEDINGS WERE INSTITUTED IN A
STATE COURT TO ESCHEAT TO THE STATE CERTAIN PERSONAL PROPERTY,
INCLUDING UNCLAIMED SHARES OF APPELLANT CORPORATION'S STOCK AND
UNCLAIMED DIVIDENDS.  PERSONAL SERVICE WAS MADE ON APPELLANT, AND
NOTICE IDENTIFYING THE PROPERTY AND THE LAST-KNOWN OWNERS WAS GIVEN BY
PUBLICATION.  APPELLANT IS A NEW JERSEY CORPORATION BUT HAS NO OFFICE
OR PLACE OF BUSINESS IN THE STATE EXCEPT A STATUTORY REGISTERED
OFFICE.  IT HAS NO TANGIBLE PROPERTY IN THE STATE EXCEPT ITS STOCK AND
TRANSFER BOOKS.  THE STOCK WAS ISSUED AND THE DIVIDENDS HELD IN OTHER
STATES; AND THE LAST-KNOWN ADDRESSES OF THE OWNERS WERE CHIEFLY IN
OTHER STATES AND FOREIGN COUNTRIES.  OVER APPELLANT'S OBJECTION TO THE
VALIDITY OF THE PROCEEDINGS UNDER THE FEDERAL CONSTITUTION, IT WAS
DECREED THAT THE UNCLAIMED STOCK AND DIVIDENDS HAD ESCHEATED TO THE
STATE.  HELD:  THE JUDGMENT IS SUSTAINED.  PP. 429-443. 

1. THE NOTICE REQUIRED BY THE STATUTE, AS CONSTRUED BY THE SUPREME
COURT OF NEW JERSEY, AND WHICH WAS GIVEN, WAS ADEQUATE TO BIND
INTERESTED PERSONS.  PP. 432-435. 

2.  THE STATUTE DOES NOT IMPAIR THE OBLIGATION OF CONTRACTS IN
VIOLATION OF ART. I, SEC. 10, $* 1, OF THE FEDERAL CONSTITUTION.  PP.
435-436. 

3. REGARDLESS OF THEORIES AS TO THEIR SITUS, STOCK CERTIFICATES AND
UNDELIVERED DIVIDENDS MAY BE ABANDONED PROPERTY SUBJECT TO THE
DISPOSITION OF THE DOMICILIARY STATE OF THE CORPORATION WHEN THE
WHEREABOUTS OF THE OWNERS ARE UNKNOWN FOR SUCH LENGTHS OF TIME, AND
UNDER SUCH CIRCUMSTANCES, AS PERMIT A DECLARATION OF ABANDONMENT.  PP.
437-442. 

(A)  THE FACT THAT APPELLANT IS A NEW JERSEY CORPORATION, AMENABLE TO
PROCESS THROUGH ITS DESIGNATED AGENT AT ITS REGISTERED OFFICE IN NEW
JERSEY, GAVE NEW JERSEY POWER TO SEIZE THE RES HERE INVOLVED - I.E.,
THE "DEBTS OR DEMANDS DUE TO THE ESCHEATED ESTATE."  PP. 438-439. 

(B)  NO MATTER WHERE APPELLANT'S ASSETS MAY BE, SINCE IT IS ITS
OBLIGATION TO PAY TO THE ESCHEATED ESTATE THAT IS TAKEN, PERSONAL
SERVICE ON APPELLANT EFFECTS A SEIZURE OF THAT OBLIGATION.  P. 439. 

(C)  SINCE CHOSES IN ACTION HAVE NO TANGIBLE EXISTENCE, CONTROL OVER
THEM CAN ONLY ARISE FROM CONTROL OVER THE PERSONS WHOSE RELATIONSHIPS
ARE THE SOURCE OF THE RIGHTS AND OBLIGATIONS.  PP. 439-440. 

(D)  SINCE THE NEW JERSEY COURT HAD JURISDICTION OF APPELLANT BY
PERSONAL SERVICE AND OF THE OWNERS OF THE STOCK AND DIVIDENDS THROUGH
NOTICE OR SERVICE BY PUBLICATION, NEW JERSEY HAD POWER TO ACT ON THEIR
RIGHTS RESPECTING THESE CHOSES IN ACTION WITHIN CONSTITUTIONAL LIMITS. 
PP. 440-441. 

4.  UNDER THE FULL FAITH AND CREDIT CLAUSE OF THE FEDERAL
CONSTITUTION, THE DEBTS AND DEMANDS AGAINST APPELLANT REPRESENTED BY
THE STOCK AND DIVIDENDS CANNOT BE TAKEN FROM APPELLANT BY ANOTHER STATE
WHEN THEY HAVE ALREADY BEEN TAKEN FROM APPELLANT BY A VALID JUDGMENT OF
NEW JERSEY.  PP. 442-443. 

STANDARD OIL CO. V. NEW JERSEY. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

A NEW JERSEY COURT DECREED ESCHEAT TO THE STATE OF CERTAIN UNCLAIMED
STOCK OF APPELLANT AND OF UNCLAIMED DIVIDENDS.  2 N.J. SUPER.  442, 64
A.2D 386; 5 N.J. SUPER.  460, 68 A.2D 499.  THE SUPREME COURT OF NEW
JERSEY AFFIRMED.  5 N.J. 281, 74 A.2D 565.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 443. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE STANDARD OIL COMPANY, A NEW JERSEY CORPORATION, APPEALS FROM A
JUDGMENT OF THE SUPREME COURT OF NEW JERSEY INSOFAR AS IT DECLARES
ESCHEATED TO THE STATE OF NEW JERSEY UNPAID DIVIDENDS DECLARED UPON THE
STOCK OF STANDARD OIL, AND TWELVE SHARES OF THE COMMON STOCK OF THE
COMPANY.  THE NEW JERSEY ESCHEAT ACT READS IN PART: 

"IF ANY PERSON, WHO, AT THE TIME OF HIS DEATH, HAS BEEN OR SHALL HAVE
BEEN, THE OWNER OF ANY PERSONAL PROPERTY WITHIN THIS STATE, AND SHALL
HAVE DIED, OR SHALL DIE, INTESTATE, WITHOUT HEIRS OR KNOWN KINDRED,
CAPABLE OF INHERITING THE SAME, AND WITHOUT LEAVING A SURVIVING SPOUSE,
SUCH PERSONAL PROPERTY, OF WHATSOEVER NATURE THE SAME MAY BE, SHALL
ESCHEAT TO THE STATE." 

"WHENEVER THE OWNER, BENEFICIAL OWNER, OR PERSON ENTITLED TO ANY
PERSONAL PROPERTY WITHIN THIS STATE, HAS BEEN OR SHALL BE AND REMAIN
UNKNOWN FOR THE PERIOD OF FOURTEEN SUCCESSIVE YEARS, OR WHENEVER THE
WHEREABOUTS OF SUCH OWNER, BENEFICIAL OWNER OR PERSON, HAS BEEN OR
SHALL BE AND REMAIN UNKNOWN FOR THE PERIOD OF FOURTEEN SUCCESSIVE
YEARS, OR WHENEVER ANY PERSONAL PROPERTY WHEREVER SITUATE HAS BEEN OR
SHALL BE AND REMAIN UNCLAIMED FOR THE PERIOD OF FOURTEEN SUCCESSIVE
YEARS, THEN, IN ANY SUCH EVENT, SUCH PERSONAL PROPERTY SHALL ESCHEAT TO
THE STATE."  N.J. REV. STAT. (CUM. SUPP. 1945-1947) 2:53-16, 2:53-17. 

IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED BY THE ACT, A PETITION IN
THE NAME OF THE STATE OF NEW JERSEY FOR A DECREE ESCHEATING CERTAIN
PERSONAL PROPERTY,  FN1  INCLUDING THE PROPERTY IN ISSUE HERE, WAS
FILED IN THE CHANCERY DIVISION OF THE SUPERIOR COURT OF NEW JERSEY. 
THE PETITION ALLEGED THAT APPELLANT HAD IN ITS CUSTODY OR POSSESSION
PROPERTY WHICH WAS SUBJECT TO ESCHEAT UNDER THE ACT FOR EACH OF THE
ALTERNATIVE REASONS LISTED IN THE ABOVE PROVISIONS:  THE OWNERS OF THE
PROPERTY HAD DIED INTESTATE WITHOUT LEAVING ANYONE CAPABLE OF TAKING
THE PROPERTY; THE OWNERS HAD BEEN UNKNOWN FOR FOURTEEN SUCCESSIVE
YEARS; THE WHEREABOUTS OF THE OWNERS HAD BEEN UNKNOWN FOR FOURTEEN
SUCCESSIVE YEARS; THE PROPERTY HAD BEEN UNCLAIMED FOR FOURTEEN
SUCCESSIVE YEARS. 

THE APPELLANT ANSWERED THE PETITION AND, AFTER NOTICE AND HEARING,
THE CHANCERY DIVISION OF THE SUPERIOR COURT ENTERED A FINAL JUDGMENT
ORDERING ESCHEAT OF THE PERSONAL PROPERTY.  2 N.J. SUPER.  442, 64 A.2D
386; 5 N.J. SUPER.  460, 68 A.2D 499.  THIS JUDGMENT WAS MODIFIED AND
AFFIRMED AS MODIFIED BY THE SUPREME COURT OF NEW JERSEY.  5 N.J. 281,
74 A.2D 565. 

STANDARD OIL, APPEALING FROM THE DECISION OF THE SUPREME COURT OF NEW
JERSEY, CLAIMS THAT THE NEW JERSEY ESCHEAT ACT AND THE JUDGMENT
THEREUNDER DEPRIVED THE COMPANY OF ITS PROPERTY WITHOUT DUE PROCESS OF
LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  THIS UNCONSTITUTIONAL
DEPRIVATION IS ALLEGED TO ARISE FROM THE FACT THAT THE JUDGMENT OF
ESCHEAT DOES NOT PROTECT STANDARD OIL FROM LATER LIABILITY TO THE
STOCKHOLDERS WHOSE CLAIMS TO STOCK AND DIVIDENDS ARE ESCHEATED,
BECAUSE: (1) BOTH THE NOTICE TO THE CLAIMANTS OF THE PROPERTY
PRESCRIBED BY THE STATUTE AND THE NOTICE ACTUALLY PUBLISHED WERE SO
INADEQUATE THAT CLAIMANTS WERE AFFORDED NO REASONABLE OPPORTUNITY TO
LEARN OF THE ESCHEAT PROCEEDING AND OF ITS EFFECT ON THEIR CLAIMS, OR
TO APPEAR AND PROTECT THEIR RIGHTS; (2) THE OBLIGATION OF THE CONTRACTS
OF THE PERSONS WHOSE PROPERTY WAS ESCHEATED WAS IMPAIRED BY THE STATUTE
AND JUDGMENT THEREUNDER IN VIOLATION OF ART. I, SEC. 10, P1 OF THE
CONSTITUTION OF THE UNITED STATES; (3) THE NEW JERSEY COURTS WERE
WITHOUT JURISDICTION TO ENTER THE JUDGMENT SINCE NEITHER THE SHARES OF
STOCK NOR THE DIVIDENDS HAD A SITUS IN NEW JERSEY FOR THE PURPOSE OF
ESCHEAT, NOR WERE EITHER LAWFULLY SEIZED IN THE ESCHEAT PROCEEDINGS. 
FN2 

NOTICE. - APPELLANT CONTENDS THAT THE JUDGMENT OF ESCHEAT DEPRIVES
THE VARIOUS CLAIMANTS AGAINST STANDARD OIL OF THEIR PROPERTY WITHOUT
ADEQUATE NOTICE, AND SINCE THE CLAIMANTS MAY THEREFORE SUE APPELLANT
LATER AND RECOVER ON THESE CLAIMS, THIS STATUTE AND JUDGMENT DEPRIVE
APPELLANT OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW.  FN3 

THE STATUTE, N.J. REV. STAT. (CUM. SUPP. 1945-1947) 2:53-21,
PROVIDES: 

"A NOTICE CONTAINING A SUMMARY OF THE ORDER DESIGNATING THE TIME AND
PLACE OF HEARING, AS APPROVED BY THE COURT SHALL BE PUBLISHED IN A
MANNER DIRECTED BY THE COURT AND SHALL ALSO BE PUBLISHED ONCE A WEEK
FOR THREE SUCCESSIVE WEEKS IN A NEWSPAPER OF GENERAL CIRCULATION
DESIGNATED BY THE COURT; ...  " 

THE SUPREME COURT OF NEW JERSEY AUTHORITATIVELY CONSTRUED THIS TO
REQUIRE "THAT THE NOTICE SHALL IDENTIFY THE PROPERTY OF WHICH ESCHEAT
IS SOUGHT AND THE LAST KNOWN OWNER."  5 N.J. AT 307, 74 A.2D AT 577. 
FN4  THE PUBLISHED NOTICE IN THIS CASE CORRESPONDED WITH THIS
CONSTRUCTION.  IT DESCRIBED THE PROPERTY IN ACCORDANCE WITH THE STATE
COURT'S UNDERSTANDING OF THE REQUIREMENTS OF N.J. REV. STAT. 2:53-21,
AND CLEARLY INDICATED THAT THE PETITION WAS ONE FOR ESCHEAT. 

THIS CASE DIFFERS FROM WUCHTER V. PIZZUTTI, 276 U.S. 13, RELIED ON BY
APPELLANT, SINCE IT IS NOT HERE ATTEMPTED TO VALIDATE A DEFECTIVE
STATUTORY PROVISION FOR NOTICE BY RECOURSE TO THE SUFFICIENCY OF THE
NOTICE WHICH, ALTHOUGH NOT REQUIRED BY STATUTE, WAS IN FACT GIVEN. 
HERE IT IS THE STATUTE ITSELF, AS INTERPRETED BY THE STATE COURT, WHICH
REQUIRES WHAT WE THINK IS ADEQUATE NOTICE. 

IN SECURITY SAVINGS BANK V. CALIFORNIA, 263 U.S. 282, A CASE
INVOLVING STATUTORY ESCHEAT OF THE BANK DEPOSITS PRESUMED ABANDONED,
WHERE NOTHING TO THE CONTRARY IS KNOWN BY BANK OFFICIALS, BECAUSE
UNUSED AND UNCLAIMED FOR TWENTY YEARS, IT WAS SIMILARLY CONTENDED THE
BANK WAS DENIED DUE PROCESS BECAUSE DEPOSITORS WOULD NOT BE BOUND BY
THE JUDGMENT OF ESCHEAT.  P. 286.  THIS COURT SAID:  "(THE) ESSENTIALS
OF JURISDICTION OVER THE DEPOSITS ARE THAT THERE BE SEIZURE OF THE RES
AT THE COMMENCEMENT OF THE SUIT; AND REASONABLE NOTICE AND OPPORTUNITY
TO BE HEARD."  P. 287.  THE PROCEDURAL PROVISION MADE THE DEPOSITORS
AFFECTED PARTIES AND REQUIRED PUBLICATION IN SACRAMENTO COUNTY, ONLY,
OF THE SUMMONS WITH NO REQUIREMENT OF THE DEPOSITORS' ADDRESSES. 
DELIVERY OF A COPY OF THE SUMMONS ON THE BANK WAS COMMANDED.  IT WAS
HELD, P. 287, THAT THE PERSONAL SERVICE ON THE BANK EFFECTED SEIZURE OF
THE DEPOSIT AND THE PUBLICATION OF THE SUMMONS WAS EFFECTIVE AS SIMILAR
PUBLICATION WOULD BE IN LITIGATION INVOLVING UNKNOWN PERSONS WITH
POSSIBLE CLAIMS TO PROPERTY.  CF. ANDERSON NATIONAL BANK V. LUCKETT,
321 U.S. 233, 243. 

IN MULLANE V. CENTRAL HANOVER TRUST CO., 339 U.S. 306, IN A
PROCEEDING TO SETTLE TRUSTS WITH NUMEROUS PARTIES AS POSSIBLE
BENEFICIARIES WHOSE NAMES AND INTERESTS WERE UNKNOWN TO THE TRUSTEE, WE
COMMENTED ON THE SUBJECT OF NOTICE: 

"THIS COURT HAS NOT HESITATED TO APPROVE OF RESORT TO PUBLICATION AS
A CUSTOMARY SUBSTITUTE IN ANOTHER CLASS OF CASES WHERE IT IS NOT
REASONABLY POSSIBLE OR PRACTICABLE TO GIVE MORE ADEQUATE WARNING."  P.
317. 

WE HELD THAT: 

"ACCORDINGLY WE OVERRULE APPELLANT'S CONSTITUTIONAL OBJECTIONS TO
PUBLISHED NOTICE INSOFAR AS THEY ARE URGED ON BEHALF OF ANY
BENEFICIARIES WHOSE INTERESTS OR ADDRESSES ARE UNKNOWN TO THE
TRUSTEE."  P. 318. 

THE SOUND REASONS STATED IN THE FOREGOING CASES FOR DEEMING THE
NOTICES THERE GIVEN ADEQUATE TO BIND INTERESTED PERSONS IN THE
RESPECTIVE PROCEEDINGS, LEAD US TO THE CONCLUSION THAT THE NOTICE BY
PUBLICATION IN THIS CASE WAS ADEQUATE.  IF THE STATE HAS THE
RESPONSIBILITY OF LOOKING AFTER ABANDONED PROPERTY SUBJECT TO ITS
SOVEREIGN POWER, THESE PUBLICATIONS ARE ADEQUATE TO AFFECT THE OWNER'S
RIGHTS. 

IMPAIRMENT OF CONTRACT.  - APPELLANT ATTACKS THE VALIDITY OF THE NEW
JERSEY ESCHEAT STATUTE ON THE GROUND THAT IT IMPAIRS THE CONTRACT
RIGHTS OF THE OWNERS OF THE DIVIDENDS AND STOCK CERTIFICATES IN
VIOLATION OF ART. I, SEC. 10, P1, OF THE CONSTITUTION:  "NO STATE SHALL
...  PASS ANY  ...  LAW IMPAIRING THE OBLIGATION OF CONTRACTS  ...  "
THIS NEW JERSEY LAW WAS ENACTED TO AUTHORIZE THE STATE TO TAKE
POSSESSION OF "PERSONAL PROPERTY" WHENEVER THE OWNER ENTITLED TO THAT
"PERSONAL PROPERTY WITHIN (NEW JERSEY)  ...  SHALL BE AND REMAIN
UNKNOWN" OR HIS "WHEREABOUTS" REMAIN UNKNOWN OR THE PROPERTY REMAINS
"UNCLAIMED" FOR FOURTEEN SUCCESSIVE YEARS.  N.J. REV. STAT. (CUM. SUPP.
1945-1947) 2:53-15 AND 17.  WE NEED NOT CONSIDER WHETHER A STATE
POSSESSES INHERENT POWER FOR SUCH LEGISLATION AS TO PERSONALTY AS THE
SUCCESSOR TO A PREROGATIVE OF ROYAL SOVEREIGNTY.  FN5 

AS A BROAD PRINCIPLE OF JURISPRUDENCE RATHER THAN AS A RESULT OF THE
EVOLUTION OF LEGAL RULES, IT IS CLEAR THAT A STATE, SUBJECT TO
CONSTITUTIONAL LIMITATIONS, MAY USE ITS LEGISLATIVE POWER TO DISPOSE OF
PROPERTY WITHIN ITS REACH, BELONGING TO UNKNOWN PERSONS.  FN6  SUCH
PROPERTY THUS ESCAPES SEIZURE BY WOULD-BE POSSESSORS AND IS USED FOR
THE GENERAL GOOD RATHER THAN FOR THE CHANCE ENRICHMENT OF PARTICULAR
INDIVIDUALS OR ORGANIZATIONS.  NORMALLY THE OBLIGOR OR HOLDER AND THE
OBLIGEE OR OWNER OF ABANDONED PROPERTY WOULD, AS HERE, HAVE NO
CONTRACTUAL ARRANGEMENT BETWEEN THEMSELVES FOR ITS DISPOSITION IN CASE
OF THE OWNER'S FAILURE TO MAKE CLAIM.  AS THE DISPOSITION OF ABANDONED
PROPERTY IS A FUNCTION OF THE STATE, NO IMPLIED CONTRACT ARISES BETWEEN
OBLIGOR AND OBLIGEE TO DETERMINE THE DISPOSITION OF SUCH PROPERTY. 
CONSEQUENTLY, THERE IS NO IMPAIRMENT OF CONTRACT BY NEW JERSEY'S
STATUTE, ENACTED SUBSEQUENT TO THE CREATION OF THE OBLIGATIONS HERE
UNDER EXAMINATION, BUT ONLY THE EXERCISE OF A REGULATORY POWER OVER
ABANDONED PROPERTY.  FN7 

SITUS OF PROPERTY.  - APPELLANT ARGUES THAT THE ESCHEAT TO NEW JERSEY
OF THE STOCK AND THE DIVIDENDS DENIES IT DUE PROCESS BECAUSE SUCH
PROPERTY HAS NO SITUS IN NEW JERSEY FOR THE PURPOSE OF ESCHEAT.  FN8
APPELLANT ALSO CONTENDS THAT IT HAS NEITHER CUSTODY NOR POSSESSION OF
THESE DEBTS OR DEMANDS DUE FROM IT TO ITS STOCKHOLDERS AND THEREFORE
THEY CANNOT BE SEIZED.  SINCE THE PROPERTY CANNOT BE SEIZED OR
ESCHEATED, THE CORPORATION WOULD REMAIN LIABLE TO ITS STOCKHOLDERS, AND
TO REQUIRE THE PAYMENT TO THE STATE DENIES DUE PROCESS. 

APPELLANT HAS NO TANGIBLE PROPERTY IN NEW JERSEY EXCEPT ITS STOCK AND
TRANSFER BOOKS, KEPT AT ITS REGISTERED OFFICE, LOCATED IN THE OFFICE OF
AN INDIVIDUAL, AT FLEMINGTON, NEW JERSEY.  APPELLANT POINTS OUT THAT IN
THE SECURITY SAVINGS BANK CASE, 263 U.S. AT 285, AND THE ANDERSON
NATIONAL BANK CASE, 321 U.S. AT 241, THE CONTRACTS OF DEPOSIT WERE MADE
IN THE RESPECTIVE STATES BY BANKS DOING BUSINESS THEREIN.  A LIKE
SITUATION DOES NOT EXIST HERE, AS THE STOCK WAS ISSUED AND THE
DIVIDENDS WERE HELD IN OTHER STATES.  FURTHER IT IS SAID THAT THE BANK
DEPOSIT CASES DID NOT DEAL WITH ESCHEAT STATUTES, BUT RATHER, LIKE THE
MOORE CASE, WITH CONSERVATION STATUTES. 

IT WAS NOT SOLELY THE FACT THAT THE CONTRACTS FOR BANK DEPOSITS WERE
MADE IN CALIFORNIA AND KENTUCKY THAT GAVE THOSE STATES POWER OVER THE
ABANDONED DEPOSITS.  HAD THE CONTRACT BEEN ONE OF BAILMENT BETWEEN TWO
INDIVIDUAL CITIZENS OF THOSE STATES WHO HAD SUBSEQUENTLY REMOVED TO
ANOTHER STATE, THE COURTS OF THE STATE OF THE CONTRACT WOULD NOT HAVE
CONTROLLED, THOUGH ITS LAWS MIGHT HAVE.  THE CONTROLLING FACT WAS THAT
THE BANKS AND THE DEPOSITORS COULD BE SERVED WITH PROCESS, EITHER
PERSONALLY OR BY PUBLICATION, TO DETERMINE RIGHTS IN THIS CHOSE IN
ACTION.  FN9 

APPELLANT IS A CORPORATION OF NEW JERSEY, AMENABLE TO PROCESS THROUGH
ITS DESIGNATED AGENT AT ITS REGISTERED OFFICE.  N.J. REV. STAT. (CUM.
SUPP. 1945-1947) 14:4-1, 14:4-2.  CF. STATE V. GARFORD TRUCKING, INC.,
4 N.J. 346, 72 A.2D 851.  THIS GAVE NEW JERSEY POWER TO SEIZE THE RES
HERE INVOLVED, TO WIT, THE "DEBTS OR DEMANDS DUE TO THE ESCHEATED
ESTATE."  AND THE FACT THAT THIS IS IMMEDIATE ESCHEAT IS NOT
SIGNIFICANT.  ESCHEAT IS PERMITTED AGAINST PERSONS WHOSE ADDRESSES OR
EXISTENCE IS UNKNOWN.  FN10  THE TAKING-OVER IN THE BANK DEPOSIT CASES
FORESHADOWED ESCHEAT.  SEE THE MALONE CASE, 221 U.S. AT 664, THE
SECURITY SAVINGS BANK CASE, 263 U.S. AT 283 AND 290, THE ANDERSON
NATIONAL BANK CASE, 321 U.S. AT 241. 

NO MATTER WHERE THE APPELLANT'S ASSETS MAY BE, SINCE IT IS ITS
OBLIGATION TO PAY TO THE ESCHEATED ESTATE THAT IS TAKEN, PERSONAL
SERVICE ON APPELLANT EFFECTS A SEIZURE OF THAT OBLIGATION IN JUST THE
SAME WAY THAT SERVICE ON A BANK IS SEIZURE OF THE DEPOSIT AS SHOWN IN
THE NOTICE SUBDIVISION OF THIS OPINION, SUPRA, P. 432.  THAT POWER TO
SEIZE THE DEBT BY JURISDICTION OVER THE DEBTOR PROVIDES NOT ONLY THE
BASIS FOR NOTICE TO THE ABSENT OWNER BUT ALSO FOR TAKING OVER THE DEBT
FROM THE DEBTOR.  SECURITY SAVINGS BANK V. CALIFORNIA, SUPRA, AT 287. 
IT IS TRUE THAT FICTION PLAYS A PART IN THE JURISPRUDENTIAL CONCEPT OF
CONTROL OVER INTANGIBLES.  THERE IS NO FICTION, HOWEVER, IN THE FACT
THAT CHOSES IN ACTION, STOCK CERTIFICATES AND DIVIDENDS HELD BY THE
CORPORATION, ARE PROPERTY.  WHETHER SUCH PROPERTY HAS ITS SITUS WITH
THE OBLIGOR OR THE OBLIGEE OR FOR SOME PURPOSES WITH BOTH HAS GIVEN
RISE TO DIVERSE VIEWS IN THIS COURT.  FN11   WE SEE NO REASON TO DOUBT
THAT, WHERE THE DEBTOR AND CREDITOR ARE WITHIN THE JURISDICTION OF A
COURT, THAT COURT HAS CONSTITUTIONAL POWER TO DEAL WITH THE DEBT. 
SINCE CHOSES IN ACTION HAVE NO SPATIAL OR TANGIBLE EXISTENCE, CONTROL
OVER THEM CAN "ONLY ARISE FROM CONTROL OR POWER OVER THE PERSONS WHOSE
RELATIONSHIPS ARE THE SOURCE OF THE RIGHTS AND OBLIGATIONS."  ESTIN V.
ESTIN, 334 U.S. 541, 548.  FN12  SITUS OF AN INTANGIBLE IS FICTIONAL
BUT CONTROL OVER PARTIES WHOSE JUDICIALLY COERCED ACTION CAN MAKE
EFFECTIVE RIGHTS CREATED BY THE CHOSE IN ACTION ENABLES THE COURT WITH
SUCH CONTROL TO DISPOSE OF THE RIGHTS OF THE PARTIES TO THE
INTANGIBLE.  FN13  SINCE SUCH POWER EXISTS THROUGH THE STATE'S
JURISDICTION OF THE PARTIES WHOSE DEALINGS HAVE CREATED THE CHOSE IN
ACTION, WE NEED NOT RELY ON THE CONCEPT THAT THE ASSET REPRESENTED BY
THE CERTIFICATE OR DIVIDEND IS WHERE THE OBLIGOR IS FOUND.  FN14  THE
RIGHTS OF THE OWNERS OF THE STOCK AND DIVIDENDS COME WITHIN THE REACH
OF THE COURT BY THE NOTICE, I.E., SERVICE BY PUBLICATION; THE RIGHTS OF
THE APPELLANT BY PERSONAL SERVICE.  THAT POWER ENABLES THE ESCHEATING
STATE TO COMPEL THE ISSUE OF THE CERTIFICATES OR PAYMENT OF THE
DIVIDENDS.  COMPARE GREAT NORTHERN R. CO. V. SUTHERLAND, 273 U.S. 182,
193.  FN15  THIS GIVES NEW JERSEY JURISDICTION TO ACT.  THAT ACTION, OF
COURSE, MUST BE IN ACCORD WITH THE BOUNDARIES ON LEGISLATION SET BY THE
CONSTITUTION. 

UNCLAIMED PROPERTY AT THE DISPOSAL OF THE STATE MAY INCLUDE DEPOSITS
IN BANKS DOING BUSINESS IN THE PARTICULAR STATE, THOUGH INCORPORATED BY
THE FEDERAL GOVERNMENT, 12 U.S.C. SEC. 21 ET SEQ. ANDERSON NATIONAL
BANK V. LUCKETT, 321 U.S. 233.  SUCH A DEPOSIT "IS A PART OF THE MASS
OF PROPERTY WITHIN THE STATE WHOSE TRANSFER AND DEVOLUTION IS SUBJECT
TO (THE SAME) STATE CONTROL," P. 248, AS WOULD BE "TANGIBLE PROPERTY." 
SECURITY SAVINGS BANK V. CALIFORNIA, SUPRA, P. 285.  MONEYS OWED BY
FOREIGN INSURANCE COMPANIES, DOING BUSINESS IN A STATE, ON LIFE
POLICIES ISSUED ON THE LIVES OF RESIDENTS OF THAT STATE AND REMAINING
UNCLAIMED FOR AN ADEQUATE PERIOD, ARE SUBJECT TO THE STATE'S
DISPOSITION.  CONNECTICUT INS. CO. V. MOORE, 333 U.S. 541. 

WE THINK THAT STOCK CERTIFICATES AND UNDELIVERED DIVIDENDS THEREON
MAY ALSO BE ABANDONED PROPERTY SUBJECT TO THE DISPOSITION OF THE
DOMICILIARY STATE OF THE CORPORATION WHEN THE WHEREABOUTS OF THE OWNERS
ARE UNKNOWN FOR SUCH LENGTHS OF TIME, AND UNDER SUCH CIRCUMSTANCES, AS
PERMIT THE DECLARATION OF ABANDONMENT.  FN16  THAT RULE IS APPLICABLE
HERE. 

FULL FAITH AND CREDIT.  - FINALLY, WE SHALL DEAL WITH APPELLANT'S
OBJECTION THAT THIS STATUTORY ESCHEAT TAKES ITS PROPERTY WITHOUT DUE
PROCESS BECAUSE IT DOES NOT PROTECT IT FROM CLAIMS BY THE OWNERS.  THE
ARGUMENT IS THAT THE PROTECTION AFFORDED BY THE NEW JERSEY ESCHEAT
STATUTE IS INADEQUATE IN THAT N.J. REV. STAT. (CUM. SUPP. 1945-1947)
2:53-23.1  FN17  IS NO PROTECTION BEYOND THE STATE AGAINST OWNERS OF
THE ESCHEATED SHARES OR AGAINST ESCHEAT OR CONSERVATION ACTIONS BY
OTHER STATES AGAINST STANDARD OIL OF NEW JERSEY FOR THE SAME DEBTS OR
DEMANDS DUE FROM STANDARD TO ITS STOCKHOLDERS.  FN18  THE JUDGMENT, AS
MODIFIED, CALLS FOR THE REISSUE OF THE ABANDONED CERTIFICATES TO NEW
JERSEY AND FOR THE PAYMENT TO THAT STATE OF THE UNPAID DIVIDENDS. 

WE HAVE INDICATED ABOVE THAT WE CONSIDER THE NOTICE TO THE
STOCKHOLDERS ADEQUATE TO SUPPORT A VALID JUDGMENT AGAINST THEIR RIGHTS
AS WELL AS THOSE OF THE COMPANY.  THE RES IS THE DEBT AND THE SAME RULE
APPLIES AS WITH TANGIBLE PROPERTY.  FN19  THE DEBTS OR DEMANDS
REPRESENTED BY THE STOCK AND DIVIDENDS HAVING BEEN TAKEN FROM THE
APPELLANT COMPANY BY A VALID JUDGMENT OF NEW JERSEY, THE SAME DEBTS OR
DEMANDS AGAINST APPELLANT CANNOT BE TAKEN BY ANOTHER STATE.  THE FULL
FAITH AND CREDIT CLAUSE BARS ANY SUCH DOUBLE ESCHEAT.  CF. BALTIMORE &
OHIO R. CO. V. HOSTETTER, 240 U.S. 620, 624, AND CASES CITED,
PARTICULARLY HARRIS V. BALK, 198 U.S. 215, 226. 

DISSENTS SUGGEST THAT STATES MAY ENACT ONLY CUSTODIAL STATUTES UNTIL
THIS COURT SETTLES ANY CONTROVERSY THAT MAY ARISE BETWEEN STATES OVER
RIGHTS TO ABANDONED CHOSES IN ACTION.  THE DETAILS OF THE METHOD OF
BRINGING OTHER STATES AND FOREIGN COUNTRIES BEFORE THIS COURT FOR
SELECTION OF THE APPROPRIATE SOVEREIGNTY TO RECEIVE THE ABANDONED
PROPERTY ARE NOT ELABORATED UPON.  THE CLAIM OF NO OTHER STATE TO THIS
PROPERTY IS BEFORE US AND, OF COURSE, DETERMINATION OF ANY RIGHT OF A
CLAIMANT STATE AGAINST NEW JERSEY FOR THE PROPERTY ESCHEATED BY NEW
JERSEY MUST AWAIT PRESENTATION HERE. 

THE JUDGMENT OF THE SUPREME COURT OF NEW JERSEY IS AFFIRMED. 

FN1 THE ESCHEAT ACT DEFINES THE TERM "PERSONAL PROPERTY" TO INCLUDE
"MONEYS, NEGOTIABLE INSTRUMENTS, CHOSES IN ACTION, INTEREST, DEBTS OR
DEMANDS DUE TO THE ESCHEATED ESTATE, STOCKS, BONDS, DEPOSITS,
MACHINERY, FARM CROPS, LIVE STOCK, FIXTURES, AND EVERY OTHER KIND OF
TANGIBLE OR INTANGIBLE PROPERTY AND THE ACCRETIONS THEREON."  N.J. REV.
STAT. (CUM. SUPP. 1945-1947) 2:53-15. 

FN2  IN ADDITION TO THE SHARES OF COMMON STOCK AND THE DIVIDENDS, THE
PERSONAL PROPERTY IN POSSESSION OF APPELLANT, WHICH THE CHANCERY
DIVISION OF THE SUPERIOR COURT HELD TO BE ESCHEATED, INCLUDED UNPAID
WAGES OF FORMER EMPLOYEES, MONEY WITHHELD FROM WAGES OF FORMER
EMPLOYEES FOR PURCHASE OF LIBERTY BONDS, MONEYS REPRESENTING THE
AMOUNTS OF UNPRESENTED COMMERCIAL CHECKS ISSUED BY APPELLANT, AND
MONEYS REPRESENTING UNPRESENTED COUPONS ON A DEBENTURE ISSUE.  BUT THE
SUPREME COURT OF NEW JERSEY HELD THAT THE ESCHEAT ACT DID NOT APPLY TO
DEBTS OR DEMANDS DUE THE ESCHEATED ESTATE THAT HAD BEEN "EXTINGUISHED,
EITHER BY SATISFACTION OR BY THE BAR OF THE STATUTE OF LIMITATIONS." 
STATE V. STANDARD OIL CO., 5 N.J. 281, 293, 74 A.2D 565, 570.  MONEYS
REPRESENTING UNPAID WAGES AND UNPRESENTED CHECKS AND COUPONS WERE
AFFECTED BY THIS RULING.  THE NEW JERSEY RULE IS THAT THE STATUTE OF
LIMITATION BARS THE RIGHT AS WELL AS THE REMEDY.  ID. AT 292 ET SEQ.,
74 A.2D AT 570 ET SEQ. CF. CHASE SECURITIES CORP. V. DONALDSON, 325
U.S. 304, 311, CONSIDERING CAMPBELL V. HOLT, 115 U.S. 620.  THE NEW
JERSEY SUPREME COURT ALSO HELD THAT MINOR CLAIMS THAT WERE NOT LISTED
IN THE NOTICE OF THE CHANCERY DIVISION'S PROCEEDINGS WERE NOT
ESCHEATED.  5 N.J. 281, 310, 74 A.2D 565, 579.  CONSEQUENTLY, APPELLANT
COMPLAINS ONLY OF THE ESCHEAT OF TWELVE SHARES OF COMMON STOCK OF AN
AGGREGATE PAR VALUE OF $300, AND OF UNPAID DIVIDENDS. 

OF COURSE, NEW JERSEY'S CONSTRUCTION OF THE ESCHEAT STATUTES IS
BINDING ON THIS COURT EXCEPT WHERE MATTERS OF FEDERAL LAW ARE
INVOLVED.  HEBERT V. LOUISIANA, 272 U.S. 312, 317; UNITED STATES V.
BURNISON, 339 U.S. 87, 89. 

FN3  THE ESCHEAT STATUTE MAKES THE DECREE A FULL RELEASE OF LIABILITY
IN ANY JURISDICTION IN WHICH IT IS EFFECTIVE BUT NEW JERSEY MAKES NO
GUARANTEE TO PROTECT APPELLANT AGAINST SUCH CLAIMS.  N.J. REV. STAT.
(CUM. SUPP. 1945-1947) 2:53-23.1. 

FN4  THE NEW JERSEY SUPREME COURT DID NOT SPECIFICALLY REQUIRE THAT
THE ADDRESS OF THE LAST KNOWN OWNER BE INCLUDED IN THE NOTICE, BUT THE
NOTICE WHICH IT APPROVED DID, IN FACT, CONTAIN THE LAST KNOWN
ADDRESSES, AND ALSO DESCRIBED THE VALUE AND CHARACTER OF THE PROPERTY
WHICH WAS TO BE ESCHEATED.  THE NOTICE WAS PUBLISHED ONCE A WEEK FOR
THREE SUCCESSIVE WEEKS, IN ACCORDANCE WITH THE STATUTORY REQUIREMENT. 
N.J. REV. STAT. (CUM. SUPP. 1945-1947) 2:53-21. 

FN5  THE RIGHT OF THE KING AT COMMON LAW TO TAKE POSSESSION, IN
CERTAIN CIRCUMSTANCES, OF ABANDONED CHATTELS IS CLEAR.  VII HOLDSWORTH,
HISTORY OF ENGLISH LAW (2D ED.), 495.  E.G., TREASURE TROVE, ATTORNEY
GENERAL V. TRUSTEES OF THE BRITISH MUSEUM, (1903) 2 CH. 598.  THIS
DOCTRINE OF BONA VACANTIA CAME TO INCLUDE CHOSES IN ACTION, X
HOLDSWORTH, SUPRA, 350, SUCH AS CERTIFICATES OF STOCK IN CORPORATIONS,
VII HOLDSWORTH, SUPRA, 515 ET SEQ.; AMES, DISSEISIN OF CHATTELS, 3
SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY 541, 558.  THUS THE KING
POSSESSED AS BONA VACANTIA THE RIGHT TO DIVIDENDS ON A CLAIM OF A
DISSOLVED CORPORATION IN A BANKRUPTCY PROCEEDING AGAINST THE
CORPORATION'S DEBTOR.  THIS WAS HELD IN 1898 ON THE THEORY THAT THE
CORPORATION WAS "EXTINCT WITHOUT SUCCESSOR OR REPRESENTATIVE."  IN RE
HIGGINSON & DEAN, (1899) 1 Q.B. 325, 330.  SEE GRANT ON CORPORATIONS
(1854 ED.)  303-304.  WRIGHT, J., SAID, (1899) 1 Q.B. 329:  "THE COURTS
WILL NOT ALLOW A PERSON WHO HAS OBTAINED TITLE OR POSSESSION AS A MERE
TRUSTEE OF CHATTELS TO SET UP UNCONSCIENTIOUSLY ANY BENEFICIAL TITLE BY
OCCUPANCY, POSSESSION, OR OTHERWISE."  THUS THE CROWN TOOK THE PLACE OF
THE EXTINCT CREDITOR.  CF. ENEVER, BONA VACANTIA UNDER THE LAW OF
ENGLAND (1927), 55. 

SEE PARTICULARLY, IN RE MELROSE AVE., 234 N.Y. 48, 53, 136 N.E. 235,
237. 

CUNNACK V. EDWARDS, (1896) 2 CH. 679, DEALT WITH A SOCIETY TREATED AS
A LEGAL UNIT.  THE MEMBERS HAD ASSOCIATED THEMSELVES TO PROVIDE
ANNUITIES FOR THEIR WIDOWS.  AFTER THE DEATH OF ALL THE ASSOCIATES AND
THEIR WIDOWS, $*1250 SURPLUS REMAINED.  AS IT WAS NOT A CHARITY BUT
RATHER A BUSINESS ARRANGEMENT UNDER WHICH ALL OBLIGEES HAD RECEIVED
PAYMENT IN FULL, THE COURT HELD THAT NEITHER THE CY-PRES DOCTRINE NOR
THE DOCTRINE OF THE RESULTING TRUST APPLIED, AND AS LORD HALSBURY PUT
IT:  "THE ONLY OTHER ALTERNATIVE REMAINING IS THAT WHICH I ADOPT,
NAMELY, THAT THESE FUNDS ARE BONA VACANTIA, AND BELONG TO THE CROWN IN
THAT CHARACTER." 

FN6  CUNNIUS V. READING SCHOOL DISTRICT, 198 U.S. 458, 469.  COMPARE
MORMON CHURCH V. UNITED STATES, 136 U.S. 1, 47.  SEE 3 SCOTT, LAW OF
TRUSTS (1939), SEC. 411.4. 

FN7  SECURITY SAVINGS BANK V. CALIFORNIA, 263 U.S. 282, 285;
CONNECTICUT INS. CO. V. MOORE, 333 U.S. 541, 545-548; PROVIDENT SAVINGS
INSTITUTION V. MALONE, 221 U.S. 660, 663, 665-666. 

FN8  EACH CLASSIFIED LIST OF DEBTS OR DEMANDS DUE TO THE ESCHEATED
ESTATES BY THE APPELLANT COMPANY INCLUDES AS THE LAST KNOWN ADDRESSES
OF THE HOLDERS OF SAID CLAIMS CHIEFLY POINTS OUTSIDE NEW JERSEY.  THE
METHODS OF PAYMENT OF THE DIFFERENT CLAIMS HAVE VARIED.  FOR EXAMPLE,
DIVIDENDS HAVE BEEN PAID FROM BANK ACCOUNTS MAINTAINED IN NEW YORK
BANKS BY APPELLANT EITHER IN ITS OWN NAME OR THAT OF ITS TRANSFER
AGENT.  AS WE THINK THESE BUSINESS PRACTICES ARE NOT SIGNIFICANT IN
DETERMINING APPELLANT'S LIABILITY FOR THESE ESCHEATS, THEY WILL NOT BE
FURTHER DISCUSSED. 

FN9  THIS IS LIKE THE CREDITOR'S ABILITY TO GARNISHEE THE DEBTOR OF
HIS DEBTOR, WHEREVER THE GARNISHEED DEBTOR MAY BE.  HARRIS V. BALK, 198
U.S. 215; LOUISVILLE & NASHVILLE R. CO. V. DEER, 200 U.S. 176;
BALTIMORE & OHIO R. CO. V. HOSTETTER, 240 U.S. 620.  CF. CARPENTER, 31
HARV. L. REV. 905, BUT SEE BEALE, 27 HARV. L. REV. 107.  WHATEVER MAY
BE PROFESSOR BEALE'S VIEW OF GARNISHMENT, HE AGREES WITH THE THEORY OF
CONTROL RELIED UPON HEREIN. 

"THE TRUE DOCTRINE WOULD SEEM TO BE THAT A DEBT HAS IN FACT NO SITUS
ANYWHERE; NOT MERELY BECAUSE IT IS INTANGIBLE BUT BECAUSE AS A MERE
FORCED RELATION BETWEEN THE PARTIES IT HAS NO REAL EXISTENCE ANYWHERE. 
LIKE OTHER SUCH RELATIONS IT MAY, OF COURSE, BE CONTROLLED BY THE LAW,
AND BY THE COURTS AS INSTRUMENTS OF THE LAW; BUT THE CONTROL MUST BE
OBTAINED BY MAKING USE OF THE RELATION.  IN ORDER TO CONTROL THE
RELATION THE COURT MUST HAVE THE POWER TO CONTROL BOTH PARTIES TO IT.
ANY COURT WHICH HAS BOTH DEBTOR AND CREDITOR MAY COMPEL A RELEASE FROM
THE CREDITOR AND AN ASSIGNMENT OF THE ACTION OF THE CREDITOR.  IN OTHER
WORDS IF A DEBT IS TO BE LEGALLY ASSIGNED OR DISCHARGED IT REQUIRES THE
ACTION OF BOTH PARTIES AND ESPECIALLY THE CREDITOR, AND THE COURT WHICH
HAS TO APPLY SUCH A PROCESS MUST DO SO THROUGH ITS CONTROL OVER BOTH
PARTIES."  27 HARV. L. REV. AT 115-116. 

FN10  CHRISTIANSON V. KING COUNTY, 239 U.S. 356, 368; HAMILTON V.
BROWN, 161 U.S. 256, 268. 

FN11  BLACKSTONE V. MILLER, 188 U.S. 189, OVERRULED BY FARMERS LOAN &
TRUST CO. V. MINNESOTA, 280 U.S. 204, 209.  THE LATTER CASE LED TO A
LIKE DECISION IN FIRST NATIONAL BANK V. MAINE, 284 U.S. 312, WHICH WAS
IN TURN OVERRULED BY STATE TAX COMM'N V. ALDRICH, 316 U.S. 174, 181. 
SEE TREICHLER V. WISCONSIN, 338 U.S. 251, 256. 

FN12  CURRY V. MCCANLESS, 307 U.S. 357, 365-366:  "SUCH RIGHTS ARE
BUT RELATIONSHIPS BETWEEN PERSONS, NATURAL OR CORPORATE, WHICH THE LAW
RECOGNIZES BY ATTACHING TO THEM CERTAIN SANCTIONS ENFORCEABLE IN
COURTS.  THE POWER OF GOVERNMENT OVER THEM AND THE PROTECTION WHICH IT
GIVES THEM CANNOT BE EXERTED THROUGH CONTROL OF A PHYSICAL THING.  THEY
CAN BE MADE EFFECTIVE ONLY THROUGH CONTROL OVER AND PROTECTION AFFORDED
TO THOSE PERSONS WHOSE RELATIONSHIPS ARE THE ORIGIN OF THE RIGHTS." 

SEE A LIKE RULING IN DIRECTION DER DISCONTO-GESELLSCHAFT V. UNITED
STATES STEEL CORP., 300 F. 741, 746, AND 267 U.S. 22, 28. 

FN13  WHEN TAXATION OF INTANGIBLES WAS RULED BY FARMERS LOAN & TRUST
CO. V. MINNESOTA, 280 U.S. 204, TO THE EFFECT THAT STATES COULD NOT TAX
INTANGIBLES BELONGING TO NONRESIDENTS THOUGH OWED BY RESIDENTS,
WASHINGTON HELD THAT A WASHINGTON BANK DEPOSIT, BELONGING TO THE ESTATE
OF A KNOWN NONRESIDENT DECEDENT WITHOUT HEIRS, COULD NOT ESCHEAT TO
WASHINGTON.  "(THE) SITUS OF THIS PROPERTY WAS AT THE DOMICILE OF ITS
OWNER, AND THEREFORE IT WAS NOT PROPERTY WITHIN THIS STATE AT THE TIME
OF HIS DEATH AND NOT SUBJECT TO ESCHEAT UNDER OUR STATUTE."  IN RE
LYONS' ESTATE, 175 WASH. 115, 123, 26 P.2D 615, 618.  A CONTRARY VIEW
WAS TAKEN IN IN RE RAPOPORT'S ESTATE, 317 MICH. 291, 26 N.W.2D 777. 
THERE IT WAS HELD THAT THE MICHIGAN BANK DEPOSIT OF A NONRESIDENT
DECEDENT WITHOUT HEIRS PASSED TO MICHIGAN ON THE THEORY THAT THE
MICHIGAN ESCHEAT STATUTE OVERRULED THE MICHIGAN DOCTRINE OF THE
DOMICILIARY SITUS OF INTANGIBLES. 

FN14 2 BEALE, CONFLICT OF LAWS, SEC. 309.1:  "THE PICTURE OF BONA
VACANTIA IS THAT OF MOVABLES WITHOUT AN OWNER BEING TAKEN BY THE
OFFICERS OF THE STATE.  IN REALITY, THE MONEY WHICH (IS) REPRESENTED BY
THE BANK DEPOSIT WAS WHERE THE BANK WAS WHEN IT WAS PROVED TO BE
WITHOUT AN OWNER."  AN OBLIGOR ON A CHOSE IN ACTION, A BANK ESPECIALLY,
DOES NOT ALWAYS HAVE TANGIBLE ASSETS TO REPRESENT THE LIABILITY. 
FN15  THE FACT THAT NEW ,-ERSEY HAS ADOPTED THE UNIFORM STOCK TRANSFER
ACT WITH ITS PROVISIONS FOR THE TRANSFER OF SHARES AND THE REPLACEMENT
OF LOST CERTIFICATES IS, WE THINK, WITHOUT A BEARING ON THE PROBLEM OF
POWER TO ESCHEAT.  N.J. REV. STAT. (CUM. SUPP. 1945-1947) 14:8-27 AND
14:8-43.  WHILE THOSE SECTIONS PROVIDE FOR TRANSFER OF STOCK
CERTIFICATES ONLY BY DELIVERY AND THE ISSUE OF NEW CERTIFICATES ONLY
AFTER NOTICE BY PUBLICATION OR OTHERWISE AND UPON SECURITY, THEY WERE
APPARENTLY TREATED BY NEW JERSEY AS INAPPLICABLE TO THE PROBLEM OF
ESCHEAT.  SEE STATE V. STANDARD OIL CO., 5 N.J. 281, 307, 74 A.2D 565,
577.  NEW JERSEY MAY CONSIDER THAT ESCHEAT IS A PROCEEDING OF THE SAME
GENERAL CHARACTER AS MATTERS OF INTERNAL CORPORATE MANAGEMENT RESERVED
IN ITS DECISION IN ELGART V. MINTZ, 123 N.J. EQ. 404, 414-415, 197 A.
747, 753, AN ATTACHMENT CASE.  THE PURPOSE OF THE UNIFORM STOCK
TRANSFER ACT WAS TO PROVIDE A SYSTEM FOR TRANSFER OF STOCK THAT STATES
MIGHT FOLLOW TO SIMPLIFY TRANSACTIONS THAT TOUCHED OTHER STATES.  SEE
FOR EXAMPLE THE COMPLICATIONS OVER ATTACHMENTS IN MILLS V. JACOBS, 333
PA. 231, 4 A.2D 152.  AS THE UNIFORM STOCK TRANSFER ACT WAS NOT
SPECIFICALLY DIRECTED AT SHARES WITH UNKNOWN OWNERS, NEW JERSEY MAY
TREAT SUCH SHARES IN ITS CORPORATIONS DIFFERENTLY FROM LOST SHARES. 

FN16  CF. VII HOLDSWORTH, HISTORY OF ENGLISH LAW (2D ED.), 515. 

FN17  2:53-23.1:  "OPERATION AND EFFECT IN DECREE - 

"ANY DECREE ENTERED PURSUANT TO THE ACT TO WHICH THIS ACT IS A
SUPPLEMENT, SHALL AUTOMATICALLY OPERATE AS A FULL, ABSOLUTE AND
UNCONDITIONAL RELEASE AND DISCHARGE OF THE PERSON HAVING SUCH PROPERTY
IN POSSESSION OR CUSTODY FROM ANY AND ALL CLAIM, DEMAND, OR LIABILITY
TO ANY PERSON WHATEVER OTHER THAN THE STATE TREASURER WITH RESPECT TO
SUCH PROPERTY, AND SUCH DECREE MAY BE PLEADED AS AN ABSOLUTE BAR TO ANY
ACTION BROUGHT AGAINST SUCH PERSON WITH RESPECT TO SUCH PROPERTY BY ANY
PERSON OTHER THAN THE STATE TREASURER." 

FN18  WE LAY ASIDE WITHOUT CONSIDERATION THE POSSIBILITY THAT THE
ESCHEATED CERTIFICATES HAD LEGALLY BEEN TRANSFERRED TO OTHER PARTIES BY
THE OWNERS PRIOR TO PUBLICATION IN THIS ACTION.  " ...  I THINK THAT
THE RISK  ...  IS NOT SERIOUS ENOUGH TO JUSTIFY A REFUSAL TO ADJUST THE
DIFFERENCES ACTUALLY PRESENTED."  DIRECTION DER DISCONTO-GESELLSCHAFT
V. UNITED STATES STEEL CORP., 300 F. 741, 743; 267 U.S. 22, 29. 

FN19  PENNOYER V. NEFF, 95 U.S. 714; HAMILTON V. BROWN, 161 U.S. 256;
PENNINGTON V. FOURTH NATIONAL BANK, 243 U.S. 269.  SEE N. 9, SUPRA. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

I DO NOT UNDERSTAND THAT THE COURT AFFIRMS THE JUDGMENT OF ESCHEAT ON
THE GROUND THAT NEW JERSEY MAY CONDITION THE GRANTING OF A CORPORATE
CHARTER ON PAYMENT TO THE STATE OF DIVIDENDS UNCLAIMED AFTER 14 YEARS. 
INDEED, THE COURT SPECIFICALLY BARS THE POSSIBILITY OF DOUBLE ESCHEAT,
WHICH WOULD LOGICALLY RESULT FROM SUCH A HOLDING.  AS I UNDERSTAND IT,
THE DECISION MUST REST UPON NEW JERSEY'S POWER OVER INTERESTS WHICH IN
A TERRITORIAL SENSE ARE ASSUMED TO BE WITHIN ITS CONTROL.  THE
FOUNDATION OF THIS POWER IS USUALLY CONVEYED BY THE CONCEPT OF SITUS. 
AS TO THIS GROUND OF DECISION I MUST DISSENT.  IN CONNECTICUT LIFE INS.
CO. V. MOORE, 333 U.S. 541, THIS COURT SUSTAINED A NEW YORK STATUTE
ALLOWING ESCHEAT OF THE UNCLAIMED PROCEEDS OF INSURANCE POLICIES ON THE
BASIS OF THE INSURED'S RESIDENCE IN THE STATE AT THE TIME OF THE
DELIVERY OF THE POLICY.  ON THAT BASIS, THE STATE WHERE THE LAST KNOWN
OWNER WAS DOMICILED CERTAINLY HAS A BETTER CLAIM TO ABANDONED STOCK
THAN A STATE IN WHICH IT HAPPENS THAT THE CORPORATION IS SUBJECT TO
PROCESS. 

IF PERCHANCE ONE IS TO INFER FROM THE OPINION THAT THE UNCLAIMED
DIVIDENDS DEPOSITED WITH THE GUARANTY TRUST COMPANY OF NEW YORK ARE
ALSO ESCHEATABLE BY NEW YORK AND THAT NEW YORK, HAD SHE ANTICIPATED NEW
JERSEY, COULD HAVE EXHAUSTED ALL THE POTENTIALITIES OF ESCHEAT IN THE
UNCLAIMED DIVIDENDS, THERE IS AN ADDED REASON FOR DISSENT.  THE
CONSTITUTION OUGHT NOT TO BE PLACED IN AN UNSEEMLY LIGHT BY SUGGESTING
THAT THE CONSTITUTIONAL RIGHTS OF THE SEVERAL STATES DEPEND ON, AND ARE
TERMINATED BY, A RACE OF DILIGENCE.  THE BANKRUPTCY ACT EXPRESSES
APPROPRIATE CONDEMNATION OF SUCH UNSEEMLY CONDUCT AND ACCIDENTAL
SOLUTION OF COMPETING INTERESTS.  IT IS ONE THING FOR A STATE TO TAKE
CUSTODY OF ABANDONED PROPERTY AS TRUSTEE, LEAVING OPEN FOR SUBSEQUENT
DETERMINATION WHAT STATE HAS A CONTROLLING INTEREST JUSTIFYING
ESCHEAT.  BUT IF A STATE WISHES TO ASSERT ITS RIGHT TO ESCHEAT PROPERTY
WHICH BY ITS VERY NATURE IS NOT EXCLUSIVELY WITHIN ITS CONTROL, OTHER
INTERESTED STATES SHOULD BE PARTIES TO THE LITIGATION.  THE RIGHT TO
RESORT TO THIS COURT FOR ADJUSTMENT OF CONFLICTING INTERESTS AMONG
SEVERAL STATES HAS BEEN PLACED IN THE CONSTITUTION TO AVOID CRUDE
REMEDIES OF SELF-HELP IN THE SETTLEMENT OF INTERSTATE CONTROVERSIES. 
SEE TEXAS V. FLORIDA, 306 U.S. 398. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THERE ARE SEVERAL STATES WITH POSSIBLE CLAIMS TO THE ESCHEAT OF
INTANGIBLES.  THE STATE OF INCORPORATION OF THE OBLIGOR; THE STATE
WHERE THE LAST KNOWN OWNER WAS DOMICILED (SEE CONNECTICUT INS. CO. V.
MOORE, 333 U.S. 541); THE STATE WHERE LATER ON THE TRUE RESIDENCE OF
THE OWNER WAS PROVED TO BE; THE STATE OF HIS LAST KNOWN DOMICILE; THE
STATE WHERE THE OBLIGOR HAS ITS MAIN PLACE OF BUSINESS; IN CASE OF
INSURANCE OR TRUST PROPERTY, THE STATE OF RESIDENCE (OR DOMICILE) OF
THE BENEFICIARY.  THERE MAY BE STILL OTHER STATES WITH CLAIMS OF AN
EQUAL OR GREATER DIGNITY TO THESE.  IN THIS CASE WE HAVE HEARD FROM
ONLY ONE - THE STATE OF INCORPORATION. 

I THINK ANY OF SEVERAL STATES, INCLUDING THE STATE OF INCORPORATION,
MIGHT CONSTITUTIONALLY ENACT A CUSTODIAL STATUTE UNDER WHICH IT
UNDERTOOK TO HOLD THE ESCHEATED INTANGIBLES PENDING DETERMINATION BY
THIS COURT OF THE CLAIMS OF COMPETING STATES.  NEW JERSEY HAS NOT DONE
THAT.  NEW JERSEY UNDERTAKES TO APPROPRIATE TO HER EXCLUSIVE USE (AFTER
A SHORT STATUTE OF LIMITATIONS HAS RUN) THIS VAST AMOUNT OF WEALTH. 
HENCE, I DISSENT. 
..END :









ZITTMAN V. MCGRATH, 341 U.S. 446 


ARGUED FEBRUARY 28, 1951.  - DECIDED MAY 28, 1951.  - 182 F.2D 349,
REVERSED. 


AFTER "TRANSFERS" OF ASSETS OF GERMAN NATIONALS HAD BEEN FORBIDDEN BY
EXECUTIVE ORDERS NOS. 8785 AND 8389, ISSUED BY THE PRESIDENT PURSUANT
TO SEC. 5(B) OF THE TRADING WITH THE ENEMY ACT, PETITIONERS, AMERICAN
HOLDERS OF CLAIMS AGAINST GERMAN BANKS, LEVIED ATTACHMENTS ON THE
DEBTORS' ACCOUNTS IN A NEW YORK BANK AND PROSECUTED THE CLAIMS TO
JUDGMENTS IN NEW YORK STATE COURTS.  SUBSEQUENTLY, THE ALIEN PROPERTY
CUSTODIAN ISSUED VESTING ORDERS VESTING IN HIMSELF THE RIGHT, TITLE AND
INTEREST OF THE DEBTORS IN THE ACCOUNTS.  DUE TO THE OUTSTANDING
ATTACHMENT LEVIES, THE NEW YORK BANK REFUSED TO RELEASE THE ACCOUNTS;
AND THE CUSTODIAN SUED IN A FEDERAL DISTRICT COURT FOR A DECLARATORY
JUDGMENT THAT PETITIONERS "OBTAINED NO LIEN OR OTHER INTEREST IN" THE
ATTACHED ACCOUNTS AND THAT THE CUSTODIAN WAS ENTITLED TO POSSESSION OF
THE FUNDS IN THE ACCOUNTS.  HELD: THE CUSTODIAN WAS NOT ENTITLED TO THE
RELIEF SOUGHT.  PP. 447-449, 464. 

1. UNDER NEW YORK LAW, PETITIONERS HAVE JUDGMENTS, SECURED BY
ATTACHMENTS ON BALANCES OWNED BY GERMAN ALIENS, GOOD AS AGAINST THE
DEBTORS, BUT SUBJECT TO FEDERAL LICENSING BEFORE THEY CAN BE SATISFIED
BY TRANSFER OF TITLE OR POSSESSION.  PP. 449-452. 

2.  THE ATTACHMENT LEVIES IN THIS CASE ARE NOT NULLITIES AS AGAINST
THE RIGHT, TITLE AND INTEREST OF THE GERMAN BANKS.  PP. 452-459. 

(A)  ATTACHMENTS SUCH AS THESE HAVE BEEN TREATED AS VALID BY
CONSISTENT ADMINISTRATIVE PRACTICE, AND ARE NOT TO BE DEEMED INVALID BY
RETROACTIVE APPLICATION OF GENERAL RULING NO. 12 SPECIFICALLY
DESIGNATING AN ATTACHMENT LEVY AS A "TRANSFER" PROHIBITED BY EXECUTIVE
ORDER NO. 8389.  PP. 452-459. 

3. THE ATTACHMENT PROCEEDINGS PURSUED IN THIS CASE ARE NOT
INCONSISTENT WITH THE FEDERAL PROGRAM FOR CONTROL OF ALIEN PROPERTY,
SINCE THEY DO NOT PURPORT TO CONTROL THE CUSTODIAN IN THE EXERCISE OF
THE FEDERAL LICENSING POWER OR IN HIS POWER TO VEST THE RES FOR
PURPOSES OF ADMINISTRATION.  PROPPER V. CLARK, 337 U.S. 472,
DISTINGUISHED.  PP. 459-463. 

4.  AS AGAINST THE GERMAN DEBTORS, THE ATTACHMENTS AND THE JUDGMENTS
THEY SECURE ARE VALID UNDER NEW YORK LAW; AND THEY CANNOT BE CANCELLED
OR ANNULLED UNDER A VESTING ORDER BY WHICH THE ALIEN PROPERTY CUSTODIAN
TAKES OVER ONLY THE RIGHT, TITLE AND INTEREST OF THOSE DEBTORS IN THE
ACCOUNTS.  PP. 463-464. 

ZITTMAN V. MCGRATH, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY
CUSTODIAN. 

NO. 298.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT* . 

*TOGETHER WITH NO. 314, MCCARTHY V. MCGRATH, ATTORNEY GENERAL,
SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, ALSO ON CERTIORARI TO THE
SAME COURT. 

IN DECLARATORY JUDGMENT ACTIONS AGAINST PETITIONERS BY THE ALIEN
PROPERTY CUSTODIAN, THE DISTRICT COURT GRANTED THE RELIEF SOUGHT.  82
F.SUPP.  740.  THE COURT OF APPEALS AFFIRMED.  182 F.2D 349.  THIS
COURT GRANTED CERTIORARI.  340 U.S. 882.  REVERSED, P. 464. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 11, 1941, PETITIONER ZITTMAN, HOLDER OF CLAIMS AGAINST
THE DEUTSCHE REICHSBANK AND THE DEUTSCHE GOLDDISKONTBANK, CAUSED
ATTACHMENT WARRANTS TO BE ISSUED BY THE APPROPRIATE NEW YORK COURT AND
LEVIED ON ACCOUNTS MAINTAINED BY THE DEBTORS IN NEW YORK CITY WITH THE
CHASE NATIONAL BANK.  ON JANUARY 21, 1942, PETITIONER MCCARTHY, HOLDER
OF A CLAIM AGAINST THE REICHSBANK, ALSO ATTACHED ITS ACCOUNTS WITH THE
CHASE BANK.  BOTH ATTACHMENTS WERE FOLLOWED BY STATE COURT ACTIONS
WHICH WERE PURSUED TO DEFAULT JUDGMENTS.  THE JUDGMENTS REMAIN
UNSATISFIED BECAUSE THE ATTACHED FUNDS WERE AND ARE "FROZEN" BY FEDERAL
GOVERNMENT FOREIGN FUNDS CONTROLS.  THE NEW YORK COURTS HAVE REPEATEDLY
EXTENDED THE NINETY-DAY LIMITATION PROVIDED FOR THE SHERIFF TO REDUCE
THE ACCOUNTS TO HIS POSSESSION OR COMMENCE AN ACTION TO DO SO,  FN1  SO
THAT THE ATTACHMENTS, LIKE THE JUDGMENTS, ARE OUTSTANDING. 

THE ACCOUNTS WERE FROZEN JUNE 14, 1941, BY EXECUTIVE ORDER NO. 8785,
FN2  WHICH EXTENDED TO ASSETS OF GERMAN NATIONALS FREEZING CONTROLS
INITIATED BY EXECUTIVE ORDER NO. 8389,  FN3  ISSUED APRIL 10, 1940, BY
THE PRESIDENT, PURSUANT TO THE POWERS VESTED IN HIM BY SEC. 5(B) OF THE
TRADING WITH THE ENEMY ACT.  FN4  THE GENERAL EFFECT OF THE BASIC ORDER
WAS TO FORBID "TRANSACTIONS" IN THE ASSETS OF BLOCKED NATIONALS,
INCLUDING ALL "TRANSFERS" OF SUCH FUNDS.  FN5  IN OCTOBER, 1946, MORE
THAN FOUR AND A HALF YEARS AFTER THE LEVY OF THESE ATTACHMENTS, THE
ALIEN PROPERTY CUSTODIAN ISSUED VESTING ORDERS, WHICH VESTED "THAT
CERTAIN DEBT OR OTHER OBLIGATION OWING TO" THE GERMAN BANK "AND ANY AND
ALL RIGHTS TO DEMAND, ENFORCE AND COLLECT THE SAME."  THE CHASE BANK
NOTIFIED THE CUSTODIAN THAT, DUE TO THE OUTSTANDING ATTACHMENT LEVIES,
IT COULD NOT RELEASE THE ACCOUNTS.  FN6  SOME SIXTEEN MONTHS LATER, THE
CUSTODIAN PETITIONED THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR A DECLARATORY JUDGMENT THAT THE PETITIONERS
"OBTAINED NO LIEN OR OTHER INTEREST IN" THE ATTACHED ACCOUNTS AND THAT
HE WAS ENTITLED TO TAKE THE ENTIRE BALANCES.  THE DISTRICT COURT
GRANTED THE RELIEF SOUGHT,  FN7  AND THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT AFFIRMED, PER CURIAM, SOLELY ON THE AUTHORITY OF
PROPPER V. CLARK, 337 U.S. 472.  FN8  WE GRANTED CERTIORARI.  FN9  THE
QUESTION IS WHETHER THE ATTACHMENT LEVIES WERE "TRANSFERS" FORBIDDEN BY
EXECUTIVE ORDER NO. 8389. 

              I. RIGHTS OF THE JUDGMENT CREDITORS UNDER

                            NEW YORK LAW. 

IN THE NEW YORK COURTS, PETITIONERS INVOKED ONE OF SEVERAL
PROVISIONAL REMEDIES WHICH, FROM TIME OUT OF MIND, NEW YORK HAS
EXTENDED TO ITS CITIZENS AGAINST THEIR NON-RESIDENT DEBTORS.  THESE, IN
APPROPRIATE CIRCUMSTANCES, MAY TAKE THE FORM OF RECEIVERSHIP  FN10  OR
ATTACHMENT.  FN11  WHILE THESE TWO REMEDIES DIFFER IN NATURE AND
INCIDENTS, THEY ARE ALIKE IN BEING AVAILABLE AT THE COMMENCEMENT OR
DURING THE PENDENCY OF AN ACTION, ARE NOT INDEPENDENT BUT AUXILIARY IN
CHARACTER, AND ARE NOT DESIGNED FINALLY TO ADJUDGE SUBSTANTIVE RIGHTS
BUT TO SECURE SUCH JUDGMENT AS MAY BE RENDERED.  AS EMPLOYED IN THIS
CASE, ATTACHMENT ALSO WAS THE SOLE BASIS OF JURISDICTION. 

THE ATTACHMENT LEVY ON BANK BALANCES IS PERFECTED BY SERVICE OF A
CERTIFIED COPY OF THE WARRANT OF ATTACHMENT ON THE BANKING INSTITUTION,
FN12  WHICH IS REQUIRED TO CERTIFY TO THE SHERIFF MAKING THE LEVY THE
BALANCE DUE TO THE DEFENDANT.  FN13  THE LEVY DOES NOT REQUIRE THE
SHERIFF TO TAKE PHYSICAL POSSESSION OF ANY PROPERTY, NOR DOES IT
REQUIRE ANY TRANSFER OF TITLE.  THE EFFECT IS PRESCRIBED:  "ANY SUCH
PERSON SO SERVED WITH A CERTIFIED COPY OF A WARRANT OF ATTACHMENT IS
FORBIDDEN TO MAKE OR SUFFER, ANY TRANSFER OR OTHER DISPOSITION OF, OR
INTERFERE WITH, ANY SUCH PROPERTY OR INTEREST THEREIN SO LEVIED UPON,
...  OR SELL, ASSIGN OR TRANSFER ANY RIGHT SO LEVIED UPON, TO ANY
PERSON, OR PERSONS, OTHER THAN THE SHERIFF SERVING THE SAID WARRANT
UNTIL NINETY DAYS FROM THE DATE OF SUCH SERVICE, EXCEPT UPON DIRECTION
OF THE SHERIFF OR PURSUANT TO AN ORDER OF THE COURT."  FN14  THE
ACCOUNT ATTACHED MUST, ON THE SHERIFF'S DEMAND, BE PAID OVER TO HIM
WITHIN NINETY DAYS, UNLESS, AS HERE, THE TIME HAS BEEN EXTENDED BY
ORDER OF COURT, AND THE SHERIFF IS AUTHORIZED TO INSTITUTE AN ACTION
WITHIN THAT TIME TO RECOVER AMOUNTS WITHHELD.  FN15 

THESE CREDITORS PROSECUTED THEIR ACTIONS TO JUDGMENTS WHICH COULD BE
SATISFIED ONLY FROM ATTACHED PROPERTY AND BY ISSUANCE OF EXECUTIONS. 
FN16  AN ATTACHMENT MERGES IN AN EXECUTION WHEN ISSUED, BUT IT IS NOT
ANNULLED UNTIL THE JUDGMENT IS PAID AND REMAINS IN FORCE TO KEEP ALIVE
THE LIEN ON THE PROPERTY.  CASTRIOTIS V. GUARANTY TRUST CO., 229 N.Y.
74, 79, 127 N.E. 900, 902(1920). 

EXECUTION, IF ISSUED, WOULD REQUIRE A TRANSFER OF CREDIT AND OF
FUNDS, BUT THIS STEP HAS NOT BEEN TAKEN AND, IT IS ADMITTED, CANNOT BE
TAKEN IN THESE CASES WITHOUT A FEDERAL LICENSE.  WHILE REQUIREMENT OF A
FEDERAL LICENSE CREATES SOMETHING OF A CONTINGENCY AS TO SATISFACTION
OF THE JUDGMENTS, AS MATTER OF NEW YORK LAW THIS DOES NOT DEPRIVE THE
JUDGMENT OF ITS VALIDITY OR THE ATTACHMENT OF ITS LIEN.  COMMISSION FOR
POLISH RELIEF V. BANCA NATIONALA A RUMANIEI, 288 N.Y. 332, 338, 43
N.E.2D 345, 347(1942). 

ALTHOUGH THE PROVISIONAL REMEDY OF ATTACHMENT, AS USED IN THIS CASE,
HAS SERVED TO PROVIDE THE BASIS OF JURISDICTION AND HAS CREATED A LIEN
TO SECURE SATISFACTION OF THE JUDGMENT, IT IS CLEAR THAT IT HAS NEITHER
ATTEMPTED NOR ACCOMPLISHED ANY TRANSFER OF POSSESSION, FOR THESE
ATTACHMENTS HAVE BEEN MAINTAINED FOR OVER NINE YEARS, AND THE ACCOUNTS
ARE STILL WHERE THEY WERE BEFORE THE ATTACHMENTS WERE LEVIED.  THAT
THERE HAS BEEN NO TRANSFER OF TITLE TO THE FUNDS BY THE PROCEEDINGS TO
DATE ALSO IS CLEAR.  IF THE JUDGMENT DEBTORS CHOSE TO SATISFY THE
JUDGMENTS BY OTHER MEANS, OR TO SUBSTITUTE AN UNDERTAKING FOR THE
PROPERTY ATTACHED, THEY COULD DO SO, AND THE ACCOUNTS WOULD BE FREED OF
THE LIEN.  FN17 

UNDER STATE LAW, THE POSITION OF THESE JUDGMENT CREDITORS IS THAT
THEY HAVE JUDGMENTS, SECURED BY ATTACHMENTS ON BALANCES OWNED BY GERMAN
ALIENS, GOOD AS AGAINST THE DEBTORS, BUT SUBJECT TO FEDERAL LICENSING
BEFORE THEY CAN BE SATISFIED BY TRANSFER OF TITLE OR POSSESSION.  THE
CUSTODIAN CLAIMS, IN A COLLATERAL ATTACK, THAT FEDERAL COURTS SHOULD
PRONOUNCE THEM WHOLLY VOID AND OF NO EFFECT. 

II.  EFFECT OF FEDERAL FOREIGN FUNDS CONTROL ON

                   ATTACHMENT. 

THE GOVERNMENT, IN THE PRESENT ACTION, RELIES HEAVILY ON GENERAL
RULING NO. 12 UNDER EXECUTIVE ORDER NO. 8389, ISSUED APRIL 21, 1942,
SOME THREE TO FIVE MONTHS AFTER THESE ATTACHMENTS WERE LEVIED, AND
ALMOST TWO YEARS AFTER ISSUANCE OF THE EXECUTIVE ORDER WHICH IT
PURPORTS TO INTERPRET.  FN18  THEN, FOR THE FIRST TIME, AN ATTACHMENT
LEVY WAS SPECIFICALLY DESIGNATED AS A PROHIBITED "TRANSFER."  THE
GOVERNMENT ASKS THAT IT BE CONSTRUED TO PROHIBIT SUCH ATTACHMENTS AS
HERE MADE AND BE APPLIED RETROACTIVELY TO THESE ATTACHMENTS MADE BEFORE
ITS PROMULGATION.  WHETHER AN ADMINISTRATIVE AGENCY COULD THUS LUMP ALL
ATTACHMENTS AS PROHIBITED "TRANSFERS," WITHOUT REFERENCE TO THE NATURE
OF THE RIGHTS ACQUIRED OR STEPS TAKEN UNDER THE VARIOUS STATE LAWS
PROVIDING FOR ATTACHMENTS, PRESENTS A QUESTION WHICH WE NEED NOT DECIDE
HERE.  SOME ATTACHMENTS MAY WELL BE TRANSFERS, AND THUS PROHIBITED.  WE
DEAL HERE ONLY WITH AN ATTACHMENT UNDER NEW YORK LAW RELATING
SPECIFICALLY TO BANK ACCOUNTS. 

THIS GENERAL RULING, AS THUS INTERPRETED TO FORBID THESE ATTACHMENTS,
WOULD BE NOT ONLY RETROACTIVE BUT INCONSISTENT AND IRRECONCILABLE WITH
THE CONTENTIONS MADE ONE DAY AFTER ITS ISSUANCE BY BOTH THE TREASURY
AND THE DEPARTMENT OF JUSTICE TO THE NEW YORK COURT OF APPEALS.  THESE
DEPARTMENTS FILED A BRIEF AMICUS CURIAE, DATED APRIL 22, 1942, IN THE
NEW YORK COURT OF APPEALS IN COMMISSION FOR POLISH RELIEF V. BANCA
NATIONALA A RUMANIEI, SUPRA.  THE CASE INVOLVED AN ATTACHMENT,
IDENTICAL IN STATE LAW CHARACTER WITH THOSE HERE, OF BANK BALANCES IN
NEW YORK OF THE NATIONAL BANK OF RUMANIA, WHICH HAD BEEN FROZEN BY
EXECUTIVE ORDER PRIOR TO LEVY.  THE GOVERNMENT'S BRIEF WAS SUBSCRIBED
BY THE GENERAL COUNSEL OF THE TREASURY AND AN ASSISTANT ATTORNEY
GENERAL, BOTH MEMBERS OF THE NEW YORK BAR, PRESUMABLY FAMILIAR WITH THE
PECULIARITIES OF THE NEW YORK LAW OF ATTACHMENT OF BANK ACCOUNTS.  IT
SPECIFICALLY CALLED ATTENTION TO GENERAL RULING NO. 12, AND, REFERRING
TO THE CLAIM OF INCOMPATIBILITY BETWEEN THE ATTACHMENT AND THE FEDERAL
FREEZING PROGRAM, IT DECLARED:  "THIS IS THE FIRST OCCASION IN WHICH A
COURT OF LAST RESORT IN THIS COUNTRY HAS BEEN CALLED UPON TO MEET THIS
ISSUE  ...  "  FN19  IT WENT ON TO ADVISE THE COURT OF APPEALS
DEFINITELY AND COMPREHENSIVELY AS TO THE RIGHTS OF NEW YORK COURTS TO
PROCEED ON THE BASIS OF THE ATTACHMENT THERE INVOLVED.  IN VIEW OF THE
CUSTODIAN'S PRESENT CONTENTIONS, IT MERITS EXTENSIVE CONSIDERATION. 

THE NEW YORK COURTS WERE ADVISED OF FIVE PURPOSES OF THE FEDERAL
GOVERNMENT'S PROGRAM:  "1.  PROTECTING PROPERTY OF PERSONS IN OCCUPIED
COUNTRIES"; "2.  PREVENTING THE AXIS, NOW OUR ENEMY, FROM ACQUIRING ANY
BENEFIT FROM THESE BLOCKED ASSETS"; "3.  FACILITATING THE USE OF
BLOCKED ASSETS IN THE UNITED NATIONS WAR EFFORT AND PROTECTING AMERICAN
BANKS AND BUSINESS INSTITUTIONS"; "4.  PROTECTING AMERICAN CREDITORS";
"5.  FOREIGN RELATIONS, INCLUDING POST-WAR NEGOTIATIONS AND
SETTLEMENTS."  FN20 

TO ACCOMPLISH THESE PURPOSES IN RELATION TO OVER SEVEN BILLION
DOLLARS OF BLOCKED FOREIGN ASSETS, IT WAS SAID THAT "  ...  THE
TREASURY HAS HAD TO DEAL WITH THE PROBLEM OF LITIGATION, PARTICULARLY
ATTACHMENT ACTIONS, AS AFFECTING BLOCKED ASSETS,"  FN21  AND THE
POSITION OF THE TREASURY WAS REPRESENTED AS FOLLOWS: 

"  ...  THE TREASURY DID NOT WANT TO INTERFERE WITH THE ORDERLY
CONSIDERATION OF CASES BY THE COURTS, INCLUDING ATTACHMENT ACTIONS, AND
AT THE SAME TIME IT WAS ESSENTIAL TO THE GOVERNMENT'S PROGRAM THAT THE
RESULTS OF COURT PROCEEDINGS BE SUBJECT TO THE SAME POLICY
CONSIDERATIONS FROM THE POINT OF VIEW OF FREEZING CONTROL AS THOSE
ARISING OR RECOGNIZED THROUGH VOLUNTARY ACTION OF THE PARTIES. 

"INDEED THE TREASURY REGARDS THE COURTS AS THE APPROPRIATE PLACE TO
DECIDE DISPUTED CLAIMS AND SUGGESTED TO PARTIES THAT THEY ADJUDICATE
SUCH CLAIMS BEFORE APPLYING FOR A LICENSE TO PERMIT THE TRANSFER OF
FUNDS.  THE JUDGMENT WAS THEN REGARDED BY THE TREASURY AS THE
EQUIVALENT OF A VOLUNTARY PAYMENT ORDER WITHOUT THE CREATION OR
TRANSFER OF ANY VESTED INTEREST, AND A LICENSE WAS ISSUED OR DENIED ON
THE SAME PRINCIPLES OF POLICY AS THOSE GOVERNING VOLUNTARY TRANSFERS OF
BLOCKED ASSETS. 

"THE TREASURY DEPARTMENT DID NOT FEEL THAT IT COULD FINALLY PASS ON
AN APPLICATION FOR A LICENSE TO TRANSFER BLOCKED ASSETS WHERE THE FACTS
WERE DISPUTED OR LIABILITY DENIED.  THE TREASURY FELT THAT IT WAS NOT
PRACTICAL TO PASS ON THE FREEZING CONTROL QUESTIONS INVOLVED IN SUCH
APPLICATIONS UNTIL THERE WAS AT LEAST A DETERMINATION OF THE FACTS BY A
COURT OF LAW.  ...  "  FN22 

NOTWITHSTANDING THIS ASSERTION OF COMPLETE DISCRETION TO GRANT OR
WITHHOLD APPROVAL OF ULTIMATE TRANSFERS, THE GOVERNMENT ADVISED THE
COURT OF APPEALS THAT, "SO FAR AS FOREIGN FUNDS CONTROL IS CONCERNED
THERE CAN BE AN ATTACHABLE INTEREST UNDER NEW YORK LAW WITH RESPECT TO
THE BLOCKED ASSETS.  ...  "  FN23  IN LANGUAGE APPLICABLE TO THE CASE
BEFORE US NOW, IT SAID: 

"THE NATIONAL BANK OF RUMANIA HAS PROPERTY WITHIN THE JURISDICTION. 
IT HAS NOT BEEN DIVESTED OF ALL ITS PROPERTY RIGHTS.  IN FACT, ITS
INTERESTS TODAY IN THE BLOCKED ASSETS ARE PERHAPS BY FAR THE MOST
VALUABLE OF ALL THE INTERESTS IN SUCH ASSETS.  THIS PROPERTY HAS NOT
BEEN CONFISCATED BY THE GOVERNMENT.  THE NATIONAL BANK OF RUMANIA IS
PROHIBITED FROM EXERCISING POWERS AND PRIVILEGES WHICH PRIOR TO THE
EXECUTIVE ORDER IT COULD EXERCISE.  ...  (THE) RIGHT OF THE OWNER OF A
BLOCKED ACCOUNT TO APPLY FOR A LICENSE TO MAKE PAYMENT OUT OF SUCH AN
ACCOUNT IS A MOST SUBSTANTIAL ONE, AND THAT LAWFUL PAYMENT CAN BE MADE
IF A LICENSE IS GRANTED."  FN24 

AND THE GOVERNMENT CONTINUED: 

"AN ATTACHMENT ACTION AGAINST A NATIONAL'S BLOCKED ACCOUNT IS AN
ATTEMPT TO OBTAIN AN UNLICENSED ASSIGNMENT OF THE NATIONAL'S INTEREST
IN THE BLOCKED ACCOUNT - NOTHING MORE AND NOTHING LESS. 

"IN THIS SENSE, THE ATTACHMENT ACTION MIGHT BE REGARDED AS A LEVY
UPON THE NATIONALS CONTINGENT POWER (I.E. CONTINGENT UPON TREASURY
AUTHORIZATION) TO TRANSFER ALL HIS INTEREST IN THE BLOCKED ACCOUNT TO
A; ANY JUDGMENT IN THE ATTACHMENT ACTION RESULTING IN GIVING A A
CONTINGENT INTEREST IN THE ACCOUNT EQUIVALENT TO WHAT HE WOULD HAVE
OBTAINED BY VOLUNTARY ASSIGNMENT.    "THE VALUE OF SUCH AN INTEREST IS
OF COURSE PROBLEMATICAL.  WHETHER IT IS WORTHLESS OR WORTH FULL VALUE
WILL DEPEND UPON WHETHER THE TRANSFER SOUGHT IS IN ACCORDANCE WITH THE
GOVERNMENT'S POLICIES IN ADMINISTERING FREEZING CONTROL. 

"UNDER THIS ANALYSIS OF WHAT THE NATURE OF ANY ATTACHMENT ACTION
AGAINST A BLOCKED ACCOUNT MUST BE, IN THE LIGHT OF THE PURPOSES OF
FREEZING CONTROL, IT IS SUGGESTED THAT AN ATTACHMENT ACTION OF THIS
NATURE MIGHT WELL BE ALLOWED IN THE NEW YORK COURTS.  FN25 

 .         .         .         .         .    "THE FEDERAL
GOVERNMENT IS ANXIOUS TO KEEP TO A MINIMUM INTERFERENCE WITH THE NORMAL
RIGHTS OF LITIGANTS AND THE JURISDICTION OF COURTS TO HEAR AND
DETERMINE CASES, CONSISTENT WITH THE MOST EFFECTIVE PROSECUTION BY THE
GOVERNMENT OF TOTAL WAR.  APPLIED TO THE INSTANT CASE, THIS MEANS THAT
THE FEDERAL GOVERNMENT MUST HAVE ITS HANDS UNFETTERED IN USING FREEZING
CONTROL, RECOGNIZING THAT IT IS DESIRABLE THAT PRIVATE LITIGANTS BE
ABLE TO ATTACH SOME INTEREST WITH RESPECT TO BLOCKED ASSETS IN ORDER TO
CLARIFY THEIR RIGHTS AND LIABILITIES. 

"THIS HAS BEEN SUGGESTED IN THIS BRIEF.  THE GOVERNMENT BELIEVES THAT
THE INTERESTS OF PRIVATE LITIGANTS IN STATE COURTS CAN BE SERVED
WITHOUT INTERFERENCE WITH THE FREEZING CONTROL PROGRAM.  HOWEVER, THE
INTEREST OF THE GOVERNMENT IS PARAMOUNT TO THE RIGHTS OF PRIVATE
LITIGANTS IN THIS FIELD AND SHOULD THIS COURT BE OF THE VIEW THAT UNDER
THE NEW YORK LAW THERE CANNOT BE A VALID ATTACHMENT OF THE LIMITED
INTERESTS HEREIN SUGGESTED, THEN THE GOVERNMENT MUST RELUCTANTLY TAKE
THE POSITION THAT IN THE ABSENCE OF FURTHER AUTHORIZATION UNDER THE
FREEZING CONTROL, THERE CAN BE NO ATTACHABLE INTEREST UNDER NEW YORK
LAW WITH RESPECT TO BLOCKED ASSETS."  FN26 

AS THE GOVERNMENT POINTED OUT IN THE POLISH RELIEF CASE, THE
CUSTODIAN IS CHARGED, AMONG OTHER THINGS, WITH PRESERVING AND
DISTRIBUTING BLOCKED ASSETS FOR THE BENEFIT OF AMERICAN CREDITORS.  FEW
CLAIMS ARE NOT SUBJECT TO SOME QUESTION, AND THE TREASURY DOES NOT PAY
QUESTIONABLE CLAIMS.  FOR THOSE CLAIMS TO BE SETTLED SO THAT THEY CAN
PROPERLY BE PAID OUT OF BLOCKED ASSETS THEY MUST BE ADJUDICATED VALID
BY SOME COURT OF LAW.  BECAUSE THE DEBTOR RARELY IS AMENABLE TO
PERSONAL SERVICE, ANY ACTION MUST BE IN THE NATURE OF A QUASI-IN-REM
ACTION PRECEDED BY AN ATTACHMENT OF PROPERTY BELONGING TO THE DEBTOR
WITHIN THE JURISDICTION OF THE COURT.  IF, AS THE CUSTODIAN NOW
CONTENDS, THE FREEZING PROGRAM PUTS ALL ASSETS OF AN ALIEN DEBTOR
BEYOND THE REACH OF AN ATTACHMENT, IT IS NOT DIFFICULT TO SEE THAT
THERE CAN BE NO ADJUDICATIONS OF THE VALIDITY OF AMERICAN CLAIMS AND
CONSEQUENTLY THE CLAIMS, NOT BEING SETTLED, WOULD NOT BE SATISFIED BY
THE TREASURY.  THE LOGICAL END OF THAT COURSE WOULD BE COMPLETE
FRUSTRATION OF A LARGE PART OF THE FREEZING PROGRAM.  WE CANNOT BELIEVE
THAT THE PRESIDENT INTENDED THE PROGRAM TO REACH SUCH A SELF-GENERATED
STALEMATE. 

THE NEW YORK COURT OF APPEALS TOOK THE POSITION URGED BY THE FEDERAL
GOVERNMENT.  IT HELD THAT THE INTEREST OF THE DEBTOR, ALTHOUGH SUBJECT
TO THE LICENSING CONTINGENCY, WAS SUFFICIENT AS MATTER OF STATE LAW TO
RENDER THE LEVY VALID AND SUFFICIENT AS A BASIS OF JURISDICTION TO
DECIDE ANY ISSUES BETWEEN THE ATTACHING CREDITOR AND THE FOREIGN
DEBTOR.  AT THE SAME TIME, IT ACKNOWLEDGED THAT ANY TRANSFER OF THE
ATTACHED FUNDS TO SATISFY THE JUDGMENT COULD ONLY BE HAD IF AND WHEN
THE PROPER LICENSE HAD BEEN SECURED.  COMMISSION FOR POLISH RELIEF V.
BANCA NATIONALA A RUMANIEI, SUPRA. 

WHAT THE NEW YORK COURTS HAVE DONE HERE IS NOT DISTINGUISHABLE FROM
WHAT THE GOVERNMENT URGED IN THE POLISH RELIEF CASE.  INDEED, IN THAT
CASE, THE SECRETARY OF THE TREASURY HAD EXPRESSLY DENIED THE
APPLICATION OF THE PETITIONER FOR A LICENSE FOR HIS ATTACHMENT.  IN
SPITE OF THAT, HOWEVER, THE GOVERNMENT URGED THAT THE ATTACHMENT WAS
AUTHORIZED BY SETTLED ADMINISTRATIVE PRACTICE: 

"FROM THE VERY INCEPTION OF FREEZING CONTROL, LITIGANTS, PRIOR TO
COMMENCING ATTACHMENT ACTIONS AGAINST FUNDS BELONGING TO BLOCKED
NATIONALS, HAVE REQUESTED THE SECRETARY OF THE TREASURY TO LICENSE A
TRANSFER TO THE SHERIFF BY ATTACHMENT.  IN ALL THOSE CASES, RUNNING
INTO THE HUNDREDS, THE TREASURY DEPARTMENT HAS TAKEN A CONSISTENT
POSITION.  THE TREASURY DEPARTMENT HAS AUTHORIZED THE BRINGING OF AN
ATTACHMENT ACTION.  HOWEVER, THE TREASURY DEPARTMENT HAS NOT LICENSED A
TRANSFER OF THE BLOCKED FUNDS TO THE SHERIFF PRIOR TO JUDGMENT."  FN27 

THE FOREGOING IS CONFIRMED IN THIS CASE BY A STIPULATION THAT
CONSISTENT ADMINISTRATIVE PRACTICE TREATED ATTACHMENTS SUCH AS WE HAVE
HERE AS PERMISSIBLE AND VALID AT THE TIME THEY WERE LEVIED.  FN28 

THE CUSTODIAN NOW ASKS THE FEDERAL COURTS TO DECLARE THE STATE COURT
ATTACHMENTS NULLITIES.  HIS REQUEST HERE IS NOT MERELY THAT HE IS
ENTITLED TO TAKE AND ADMINISTER THE FUND, BUT THAT THE ATTACHMENTS ARE
NOT EFFECTIVE AS AGAINST THE RIGHT, TITLE, AND INTEREST OF THE GERMAN
BANKS.  HIS REQUEST IS IRRECONCILABLE WITH THE ADMITTED ADMINISTRATIVE
PRACTICE AND THE POSITION URGED UPON THE NEW YORK COURTS IN THE POLISH
RELIEF CASE.  HE PREDICATES THAT REVERSAL OF POSITION, AND SO FAR HAS
BEEN SUSTAINED IN IT, UPON THE DECISION OF THIS COURT IN PROPPER V.
CLARK, SUPRA, TO WHICH WE ACCORDINGLY TURN. 

III. 

THE ESSENCE OF THE CUSTODIAN'S ARGUMENT THAT PROPPER V. CLARK
REQUIRES INVALIDATION OF THESE ATTACHMENTS, AS STATED IN HIS BRIEF, IS
THAT: 

"  ...  (IT) IS LITTLE SHORT OF ABSURD TO SUGGEST THAT, WHILE
CREDITORS OF AN ENEMY NATIONAL ARE PRECLUDED FROM REACHING HIS BLOCKED
PROPERTY IN THE ABSENCE OF A LICENSE WHERE THEY PROCEED BY THE
PROVISIONAL REMEDY OF RECEIVERSHIP, THE OPPOSITE RESULT WILL BE
PERMITTED WHERE THEY FOLLOW THE PROVISIONAL REMEDY OF ATTACHMENT." 
FN29 

THE ANSWER TO THIS SUGGESTED ABSURDITY IS THAT A DISTINCTION IN NEW
YORK LAW, ALL IMPORTANT HERE, HAS ELUDED THE CUSTODIAN.  THE RECEIVER
IN PROPPER WAS NOT A RECEIVER APPOINTED AS A PROVISIONAL REMEDY BUT WAS
A SPECIAL STATUTORY RECEIVER WHICH STATE LAW PURPORTED TO VEST WITH
BOTH TITLE AND RIGHT TO POSSESSION, WHICH, IN CASE OF BLOCKED ASSETS OF
A FOREIGN CORPORATE DEBTOR, WOULD OBVIOUSLY DEFEAT THE SCHEME OF
FEDERAL CONTROLS.  AS OUR OPINION NOTES, 337 U.S. AT P. 475, PROPPER'S
CLAIM, ADVERSE TO THAT OF THE CUSTODIAN, WAS INITIATED BY A TEMPORARY
RECEIVER, LATER MADE PERMANENT, APPOINTED BY A NEW YORK STATE COURT
PURSUANT TO SEC. 977-B OF THE NEW YORK CIVIL PRACTICE ACT, WHICH IS
ENTITLED, "RECEIVERS TO LIQUIDATE LOCAL ASSETS OF FOREIGN
CORPORATIONS."  THAT IS A SPECIAL PROCEEDING ADDED TO NEW YORK PRACTICE
BY THE 1936 LEGISLATURE, FN30  AND PROVIDES FOR APPOINTMENT OF A
LIQUIDATING RECEIVER OF ASSETS WITHIN THE STATE OWNED BY A FOREIGN
CORPORATION WHICH HAS BEEN DISSOLVED, LIQUIDATED, OR NATIONALIZED, OR
WHICH, VOLUNTARILY OR OTHERWISE, HAS CEASED TO DO BUSINESS.  FN31  UPON
APPLICATION BY A CREDITOR OF SUCH A CORPORATION, THE COURT APPOINTS A
TEMPORARY RECEIVER.  FN32  TITLE TO ALL SUCH ASSETS VESTS IN HIM UPON
APPOINTMENT,  FN33  AND THE STATUTE REQUIRES AND EMPOWERS HIM TO
"REDUCE TO HIS POSSESSION ANY AND ALL ASSETS, CREDITS, CHOSES IN ACTION
AND PROPERTY" FOUND IN THE STATE.  FN34  IF IT IS ESTABLISHED ON TRIAL
THAT THE CORPORATION HAS BEEN DISSOLVED OR NATIONALIZED OR THAT ITS
CHARTER HAS BEEN ANNULLED OR THAT IT HAS CEASED, FOR ANY REASON, TO DO
BUSINESS, THE RECEIVERSHIP IS MADE PERMANENT  FN35  AND NOTICE IS GIVEN
TO ALL CREDITORS TO PROVE THEIR CLAIMS.  FN36  THOSE ALLOWED, THE
RECEIVER PAYS IN ACCORDANCE WITH STATUTORY PRIORITIES.  FN37  ANY
SURPLUS IS PAID TO STOCKHOLDERS OF THE CORPORATION OR, IN THE
DISCRETION OF THE COURT, TO A RECEIVER OR LIQUIDATOR, IF ANY, APPOINTED
IN THE DOMICILE OF THE CORPORATION OR ELSEWHERE.  FN38 

THIS SPECIAL PROCEEDING, WHICH HAS NOTHING BUT NAME IN COMMON WITH
THE TRADITIONAL PROVISIONAL REMEDY OF RECEIVERSHIP,  FN39  WAS
INTRODUCED TO PROTECT RESIDENT CREDITORS AND SHAREHOLDERS AGAINST
CONFISCATORY DECREES BY FOREIGN NATIONS.  AS ONE COURT HAS SAID: 

"THIS SECTION BECAME EFFECTIVE ON THE 8TH DAY OF JUNE, 1936, AND
MARKS A DISTINCT CHANGE IN THE POLICY OF THIS STATE WITH RESPECT TO THE
DISPOSITION OF PROPERTY SITUATED HERE BUT WHICH BELONGS TO A FOREIGN
CORPORATION THAT HAS CEASED TO DO BUSINESS FOR ANY REASON, OR HAS BEEN
DISSOLVED, LIQUIDATED, OR NATIONALIZED. 

"THE PURPOSE OF THIS STATUTE, CLEARLY, IS TO ADMINISTER THE
DISTRIBUTION OF SUCH ASSETS IN THIS STATE, IRRESPECTIVE OF THE SCHEME
OF DISTRIBUTION PROMULGATED IN ANY OTHER STATE INCLUSIVE OF THE
DOMICILE OF THE FOREIGN CORPORATION.  ...  "  OLINER V. AMERICAN
ORIENTAL BANKING CORP., 252 APP. DIV. 212, 297 N.Y. SUPP. 432(1937)
AFF'D 277 N.Y. 588, 13 N.E.2D 783(1938).  SEE ALSO MOSCOW FIRE INS. CO.
V. BANK OF NEW YORK & TRUST CO., 161 MISC. 903, 924, 294 N.Y. SUPP.
648, 676(1937). 

SUCH WAS THE POSITION OF THE RECEIVER WHOSE CLAIMS WE REJECTED IN
PROPPER V. CLARK.  THE COURTS OF NEW YORK HAD THEMSELVES RECOGNIZED
THAT THE PROPPER RECEIVERSHIP CONFLICTED IN PRINCIPLE WITH FEDERAL
FUNDS CONTROL AND HAD POINTED OUT THAT IN PRACTICE IT MIGHT WELL DEFEAT
THE FEDERAL POLICY.  IT WAS SAID, "THE PRINCIPLE IS WELL SETTLED THAT
WAR SUSPENDS THE RIGHT OF NON-RESIDENT ALIEN ENEMIES TO PROSECUTE
ACTIONS IN OUR COURTS  ...  AND IT CANNOT BE DENIED THAT THE PLAINTIFF
HERE (PROPPER), ALTHOUGH HIMSELF NEITHER AN ENEMY NOR AN ALIEN NOR A
NON-RESIDENT, IS SEEKING TO ENFORCE A CAUSE OF ACTION WHICH, AT LEAST
UNTIL HIS APPOINTMENT, EXISTED, IF AT ALL, IN FAVOR OF A NON-RESIDENT
ALIEN WHICH IS ALSO AN ENEMY AS THE TERM 'ENEMY' IS DEFINED IN THE
TRADING WITH THE ENEMY ACT.  ...  HIS RIGHT TO RECOVER MUST REST UPON
THE RIGHTS OF SUCH NON-RESIDENT ALIEN ENEMY, AND WHILE SECTION 977-B OF
THE CIVIL PRACTICE ACT PURPORTS TO VEST A RECEIVER APPOINTED THEREUNDER
WITH TITLE TO CLAIMS EXISTING IN FAVOR OF THE FOREIGN CORPORATION IT
ALSO IS POSSIBLE THAT UNDER THAT SECTION SOME PROCEEDS OF A RECOVERY
HEREIN ULTIMATELY MAY BENEFIT NON-RESIDENT ALIEN ENEMIES ...  "
PROPPER V. BUCK, 178 MISC. 76, 78, 33 N.Y.S.2D 11, 13(1942). 

BUT, AS THE GOVERNMENT BEFORE THAT DECISION SO UNEQUIVOCALLY URGED
UPON THE NEW YORK COURT OF APPEALS, ATTACHMENT PROCEEDINGS AS PURSUED
IN THESE CASES HAVE NO SUCH CONSEQUENCES.  NOTHING IN THESE STATE COURT
PROCEEDINGS HAVE PURPORTED TO FRUSTRATE THE PURPOSES OF THE FEDERAL
FREEZING PROGRAM.  ON THE CONTRARY, THE EFFECT OF THE STATE'S ACTION,
LIKE THAT OF THE FEDERAL, WAS TO FREEZE THESE FUNDS, TO PREVENT THEIR
WITHDRAWAL OR TRANSFER TO USE OF THE GERMAN NATIONALS.  THERE IS NO
SUGGESTION THAT THESE ATTACHMENT PROCEEDINGS COULD IN ANY MANNER
BENEFIT THE ENEMY.  THE SOLE BENEFICIARIES ARE AMERICAN CITIZENS WHOSE
LIENS ARE NOT DERIVED FROM THE ENEMY BUT ARE ADVERSE TO ANY ENEMY
INTERESTS.  AND, IF NO FEDERAL FREEZE ORDERS WERE IN EXISTENCE, THESE
STATE PROCEEDINGS WOULD TIE UP ENEMY PROPERTY AND REDUCE THE AMOUNTS
AVAILABLE FOR ENEMY DISPOSITION.  WE AGREE WITH THE GOVERNMENT'S
ASSURANCE TO THE COURT OF APPEALS IN THE POLISH RELIEF CASE THAT THESE
PROCEEDINGS, IN VIEW OF THE FACT THAT THEY DO NOT PURPORT TO CONTROL
THE CUSTODIAN IN THE EXERCISE OF THE FEDERAL LICENSING POWER, OR IN THE
POWER TO VEST THE RES IF HE SEES FIT TO DO SO FOR ADMINISTRATION, ARE
NOT INCONSISTENT WITH THE FREEZING PROGRAM AND WE THINK THEY WERE NOT
INVALIDATED OR CONSIDERED IN PROPPER V. CLARK, SUPRA.  THE LATTER
DECISION IS NOT AUTHORITY FOR THE JUDGMENT ASKED AND OBTAINED BY THE
CUSTODIAN HERE. 

                       IV.  THE VESTING ORDER. 

THE CUSTODIAN IN THIS CASE HAS ONLY SOUGHT TO VEST IN HIMSELF THE
"RIGHT, TITLE, AND INTEREST" OF THE GERMAN BANKS.  AS WE UNDERSTAND IT,
HE ACKNOWLEDGES THAT IF THE INTERESTS ACQUIRED BY THE ATTACHMENTS ARE
VALID AS AGAINST THE GERMAN BANKS HE IS NOT, UNDER THE VESTING ORDERS
INVOLVED, AS HE HAS CHOSEN TO PHRASE THEM, ENTITLED TO THE ATTACHED
FUNDS, BUT HE TAKES THE POSITION THAT NO VALID RIGHTS AGAINST THE
GERMAN DEBTORS WERE ACQUIRED BY THE ATTACHMENTS BECAUSE PROHIBITED BY
THE FREEZING PROGRAM.  FN40  HE HAS, IN SHORT, PUT HIMSELF IN THE SHOES
OF THE GERMAN BANKS.  AS AGAINST THE GERMAN DEBTORS, 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.  BUT, OF COURSE, AS AGAINST THE CUSTODIAN, EXERCISING THE
PARAMOUNT POWER OF THE UNITED STATES, THEY DO NOT CONTROL OR LIMIT THE
FEDERAL POLICY OF DEALING WITH ALIEN PROPERTY AND DO NOT PREVENT A RES
VESTING, AS SUSTAINED IN THE COMPANION CASES, IF THE CUSTODIAN SEES FIT
TO TAKE OVER THE ENTIRE FUND FOR ADMINISTRATION UNDER THE ACT.  IN SUCH
CASE, ALL FEDERAL QUESTIONS AS TO RECOGNITION BY THE CUSTODIAN OF THE
STATE LAW LIEN, OR PRIORITY OF PAYMENT, ARE RESERVED FOR DECISION IF
AND WHEN PRESENTED IN ACCORDANCE WITH THE ACT. 

THIS RESULT, AS WE HAVE INDICATED, IN NO WAY IMPAIRS FEDERAL CONTROL
OVER ALIEN PROPERTY, SINCE THE PETITIONERS ADMIT THAT THEY CANNOT
SECURE PAYMENT FROM THE ATTACHED FROZEN FUNDS WITHOUT A LICENSE FROM
THE CUSTODIAN.  THE CASE IS, THEREFORE, MORE NEARLY LIKE LYON V.
SINGER, 339 U.S. 841, 842, WHERE THIS COURT SAID:  "WE ACCEPT THE NEW
YORK COURT'S DETERMINATION THAT UNDER NEW YORK LAW THESE CLAIMS AROSE
FROM TRANSACTIONS IN NEW YORK AND WERE ENTITLED TO A PREFERENCE.  SINCE
THE NEW YORK COURT CONDITIONED ENFORCEMENT OF THE CLAIMS UPON LICENSING
BY THE ALIEN PROPERTY CUSTODIAN, FEDERAL CONTROL OVER ALIEN PROPERTY
REMAINS UNDIMINISHED." 

THE DECISION OF THE COURT BELOW IS REVERSED.    FN1  AS PROVIDED FOR
IN N.Y. CIV. PRAC.  ACT SEC. 922. 

FN2  3 CFR, 1943 CUM. SUPP., 948, 6 FED. REG. 2897. 

FN3  3 CFR, 1943 CUM. SUPP., 645, 5 FED. REG. 1400. 

FN4  40 STAT. 411, 415, AS AMENDED BY JOINT RESOLUTION OF MAY 7,
1940, 54 STAT. 179, AND FIRST WAR POWERS ACT OF 1941, SEC. 301, 55
STAT. 839. 

FN5  EXECUTIVE ORDER NO. 8389, AS AMENDED, PROVIDES: 

"SECTION 1.  ALL OF THE FOLLOWING TRANSACTIONS ARE PROHIBITED, EXCEPT
AS SPECIFICALLY AUTHORIZED BY THE SECRETARY OF THE TREASURY BY MEANS OF
REGULATIONS, RULINGS, INSTRUCTIONS, LICENSES, OR OTHERWISE, 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: 

"A.  ALL TRANSFERS OF CREDIT BETWEEN ANY BANKING INSTITUTIONS WITHIN
THE UNITED STATES  ...  ; 

"B.  ALL PAYMENTS BY OR TO ANY BANKING INSTITUTION WITHIN THE UNITED
STATES; 

     .         .         .         .         . 

"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; AND 

"F.  ANY TRANSACTION FOR THE PURPOSE OR WHICH HAS THE EFFECT OF
EVADING OR AVOIDING THE FOREGOING PROHIBITIONS." 

FN6  THE ATTORNEY GENERAL HAS SINCE SUCCEEDED TO THE FUNCTIONS AND
POWERS OF THE ALIEN PROPERTY CUSTODIAN, BUT, FOR CONVENIENCE, THE
RESPONDENT INTEREST WILL BE REFERRED TO THROUGHOUT AS THE CUSTODIAN. 

FN7  82 F.SUPP.  740. 

FN8  182 F.2D 349. 

FN9  340 U.S. 882. 

FN10  N.Y. CIV. PRAC.  ACT SECS. 974-977. 

FN11  ID. SECS. 902-973. 

FN12  ID. SEC. 917(2). 

FN13  ID. SEC. 918. 

FN14  ID. SEC. 917(2). 

FN15  ID. SEC. 922(1). 

FN16  ID. SEC. 520. 

FN17  ID. SECS. 952, 953. 

FN18  GENERAL RULING NO. 12 UNDER EXECUTIVE ORDER NO. 8389, 31 CFR,
1943 CUM. SUPP., 8849, APRIL 21, 1942, DEFINED A PROHIBITED "TRANSFER"
AS "  ...  ANY ACTUAL OR PURPORTED ACT OR TRANSACTION ...  THE PURPOSE,
INTENT, OR EFFECT OF WHICH IS TO CREATE, SURRENDER, RELEASE, TRANSFER,
OR ALTER, DIRECTLY OR INDIRECTLY, ANY RIGHT, REMEDY, POWER, PRIVILEGE,
OR INTEREST WITH RESPECT TO ANY PROPERTY AND WITHOUT LIMITATION UPON
THE FOREGOING SHALL INCLUDE  ...  THE CREATION OR TRANSFER OF ANY LIEN;
THE ISSUANCE, DOCKETING, FILING, OR THE LEVY OF OR UNDER ANY JUDGMENT,
DECREE, ATTACHMENT, EXECUTION, OR OTHER JUDICIAL OR ADMINISTRATIVE
PROCESS OR ORDER, OR THE SERVICE OF ANY GARNISHMENT  ...  " 

FN19  BRIEF OF THE UNITED STATES AS AMICUS CURIAE, P. 2, COMMISSION
FOR POLISH RELIEF V. BANCA NATIONALA A RUMANIEI, 288 N.Y. 332, 43
N.E.2D 345(1942). 

FN20  ID. AT PP. 5, 7, 9, 11, 13. 

FN21  ID. AT P. 14. 

FN22  ID. AT PP. 14-15. 

FN23  ID. AT P. 42. 

FN24  ID. AT P. 50. 

FN25  ID. AT P. 52. 

FN26  ID. AT P. 53. 

FN27  ID. AT P. 39. 

FN28  THE STIPULATION OF FACTS STATES: 

     .         .         .         .      . 

"5.  FROM THE INCEPTION OF 'FREEZING' CONTROLS, ALL LITIGANTS WHO,
PRIOR TO COMMENCING ATTACHMENT ACTIONS AGAINST FUNDS BELONGING TO
BLOCKED NATIONALS, HAD REQUESTED THE SECRETARY OF THE TREASURY TO
LICENSE AN ATTACHMENT, OR LEVY, RECEIVED FROM THE TREASURY DEPARTMENT A
RESPONSE OF THE FOLLOWING NATURE: 

"UNDER EXECUTIVE ORDER NO. 8389, AS AMENDED, AND THE REGULATIONS
ISSUED THEREUNDER, NO ATTEMPT IS MADE TO LIMIT THE BRINGING OF SUITS IN
THE COURTS OF THE UNITED STATES OR OF ANY OF THE STATES.  HOWEVER,
SHOULD YOU SECURE A JUDGMENT AGAINST ONE OF THE PARTIES REFERRED TO IN
YOUR LETTER, WHICH IS A COUNTRY COVERED BY THE ORDER, OR A NATIONAL
THEREOF, A LICENSE WOULD HAVE TO BE SECURED BEFORE PAYMENT COULD BE
MADE FROM ACCOUNTS IN BANKING INSTITUTIONS WITHIN THE UNITED STATES IN
THE NAME OF SUCH COUNTRY OR NATIONAL. 

"6.  FROM THE INCEPTION OF 'FREEZING' CONTROLS, THE SECRETARY OF THE
TREASURY IN ADMINISTERING THE 'FREEZING' CONTROL PROGRAM ADOPTED THE
POSITION, IN RESPONSE TO NUMEROUS REQUESTS MADE OF HIM, THAT THE
BRINGING OF AN ACTION, THE ISSUANCE OF A WARRANT OF ATTACHMENT THEREIN,
AND THE LEVY THEREUNDER UPON BLOCKED PROPERTY FOUND WITHIN THE
JURISDICTION OF THE COURT WHICH ISSUED THE WARRANT WERE NOT FORBIDDEN
BUT THAT A LICENSE WAS REQUIRED TO BE SECURED BEFORE PAYMENT COULD BE
MADE FROM THE BLOCKED ACCOUNT TO SATISFY ANY JUDGMENT RECOVERED IN SUCH
ACTION. 

"7.  ...  A LICENSE TO INSTITUTE THE ACTION AND LEVY THE ATTACHMENT
WAS IN FACT NOT REQUIRED BY THE TREASURY DEPARTMENT." 

FN29  BRIEF FOR RESPONDENT, PP. 16-17. 

FN30  L. 1936, C. 917. 

FN31  N.Y. CIV. PRAC.  ACT SEC. 977-B (1). 

FN32  ID. SEC. 977-B (4). 

FN33  ID. SEC. 977-B (19). 

FN34  ID. SEC. 977-B (4). 

FN35  ID. SEC. 977-B (10). 

FN36  ID. SEC. 977-B (11). 

FN37  ID. SEC. 977-B (16). 

FN38  IBID. 

FN39  ID. SECS. 974-977.  A RECEIVER APPOINTED AS A PROVISIONAL
REMEDY IS NOT AN AGENT OR REPRESENTATIVE OF EITHER PARTY, BUT HOLDS THE
PROPERTY DURING THE LITIGATION PENDING FINAL JUDGMENT.  WEEKS V. WEEKS,
106 N.Y. 626, 631, 13 N.E. 96, 98(1887); PEOPLE EX REL. ATTORNEY
GENERAL V. SECURITY LIFE INS. CO., 79 N.Y. 267, 270(1879).  "THE
RECEIVER ACQUIRES NO TITLE, BUT ONLY THE RIGHT OF POSSESSION AS THE
OFFICER OF THE COURT.  THE TITLE REMAINS IN THOSE IN WHOM IT WAS VESTED
WHEN THE APPOINTMENT WAS MADE."  STOKES V. HOFFMAN HOUSE, 167 N.Y. 554,
559-560, 60 N.E. 667, 669(1901), QUOTING KEENEY V. HOME INS. CO., 71
N.Y. 396, 401, 27 AM. REP. 60, 63(1877).  SEE ALSO CARMODY'S MANUAL OF
NEW YORK CIVIL PRACTICE (CARR, FINN, SAXE, 1946 ED.)  SEC.  609. 

FN40  BRIEF FOR RESPONDENT, P. 27. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS, CONCURRING. 

I JOIN IN THE OPINION OF THE COURT SINCE IT PLACES CONTROL OF THE
PUBLIC INTEREST PHASE OF THE CONTROVERSY IN THE LICENSING POWER OF THE
CUSTODIAN.  PAYMENT OF CLAIMS REQUIRES A LICENSE.  FN1 A LICENSE, OF
COURSE, MAY BE REFUSED WHEN PAYMENT WOULD ACCRUE DIRECTLY OR INDIRECTLY
TO THE BENEFIT OF THE ENEMY.  BUT THE POLICY OF THE ACT IS IN NO WAY
SUBVERTED BY RECOGNITION OF A LIEN WHICH CAN RIPEN INTO A PRIORITY ONLY
IF PAYMENT WOULD HAVE NO SUCH EFFECT.  DENIAL OF THE LIEN COULD BE MADE
ONLY IF THE ACT CALLED FOR AN EQUALITY OF DISTRIBUTION AMONG CLAIMANTS,
REGARDLESS OF THEIR INNOCENCE OR GUILT.  I CAN FIND NOTHING IN THE ACT
WHICH WARRANTS LEVELING THE GOOD FAITH LIEN CLAIMANT TO THE UNSECURED
STATUS OF THE OTHERS.  FN2 

FN1  SEE SEC. 5(B) OF THE TRADING WITH THE ENEMY ACT, 40 STAT. 411,
415, AS AMENDED, 54 STAT. 179, 55 STAT. 839, AND 8 CFR, C. II, PART
511. 

FN2  THE PRIORITY OF DEBT CLAIMS CONTAINED IN SEC. 34(G), 60 STAT.
925, 928, DOES NOT PURPORT TO DEAL WITH CREDITORS PREFERRED BY REASON
OF A LIEN LAWFULLY ACQUIRED IN JUDICIAL PROCEEDINGS. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON JOINS, CONCURRING IN
PART AND DISSENTING IN PART. 

THE COURT FAILS TO DECIDE THE ONLY QUESTION OF IMPORTANCE PRESENTED
BY THIS CASE.  THIS QUESTION IS WHETHER A STATE ATTACHMENT, OBTAINED ON
ASSETS PREVIOUSLY BLOCKED UNDER EXECUTIVE ORDER NO. 8785, GIVES THE
ATTACHING CREDITOR ANY RIGHT IN THOSE ASSETS THAT DISPLACES THE POWER
OF THE GOVERNMENT TO MAKE SUCH DISPOSITION OR USE OF THE ASSETS AS IT
MAY ULTIMATELY DETERMINE IS FOR THE BEST INTEREST OF THE NATION AND ITS
CITIZENS.  THE COURT DEFERS ALL QUESTIONS AS TO "RECOGNITION BY THE
CUSTODIAN OF THE STATE LAW LIEN, OR PRIORITY OF PAYMENT" FOR LATER
DECISION.  UNDER TODAY'S DECISION THE ALIEN PROPERTY CUSTODIAN VESTS
THE ACCOUNT IN QUESTION WITHOUT KNOWING WHAT POWER HE HAS OVER ITS
HANDLING OR DISPOSITION.  SUCH UNCERTAINTY WILL HAMPER ADMINISTRATION
AND BE AN OPEN INVITATION TO THE OWNERS OF BLOCKED ASSETS TO SELL THEIR
INTERESTS IN THE BLOCKED PROPERTY, AS THE CUSTODIAN PHRASES IT, "TO
FRIENDLY SPECULATORS WILLING TO BUY AT A DISCOUNT AND TO AWAIT PAYMENT
ON THE ULTIMATE DAY OF UNBLOCKING." 

THE CUSTODIAN SOUGHT A DETERMINATION OF THIS TROUBLESOME QUESTION. 
HIS PETITION IN THE DISTRICT COURT ASKED THAT COURT TO DECLARE THAT 

"RESPONDENTS ZITTMAN AND MCCARTHY, AND MCCLOSKEY, AS SHERIFF,
OBTAINED NO LIEN OR OTHER INTEREST IN THE 'REICHSBANK-DIREKTORIUM' OR
THE DEUTSCHE GOLDDISKONTBANK ACCOUNTS, OR THE FUNDS REPRESENTED
THEREBY, AND THAT BY VIRTUE OF VESTING ORDERS NOS. 7792 AND 7870 THE
PETITIONER IS ENTITLED TO THE ENTIRE BALANCES REMAINING IN THE
'REICHSBANK-DIREKTORIUM' AND DEUTSCHE GOLDDISKONTBANK ACCOUNTS ON THE
BOOKS OF THE RESPONDENT CHASE NATIONAL BANK, TOGETHER WITH ALL ACCRUED
DIVIDENDS AND ACCUMULATIONS." 

THE DECREE SUSTAINED THAT REQUEST ON THE AUTHORITY OF PROPPER V.
CLARK, 337 U.S. 472.  IT IS TO BE NOTED THAT THE PRAYER REFERRED TO
LIENS OR OTHER INTERESTS IN THE ACCOUNTS AND ASKED THAT THE BALANCES BE
TURNED OVER.  THE COURT IS OF THE VIEW THAT THIS IS NOT A SIMPLE TURN
OVER REQUEST BUT ALSO SEEKS A DECLARATION "THAT NO VALID RIGHTS AGAINST
THE GERMAN DEBTORS WERE ACQUIRED BY THE ATTACHMENTS BECAUSE PROHIBITED
BY THE FREEZING PROGRAM." 

WHILE SUCH CONSTRUCTION OF THE PETITION IS POSSIBLE, I READ IT TO
SEEK A RATHER DIFFERENT DECISION.  THE CUSTODIAN'S COMPLAINT PRAYED A
RULING THAT THE ATTACHING CREDITORS OBTAINED NO LIEN OR OTHER INTEREST
IN THE ACCOUNTS THAT COULD DETERMINE HIS ACTION IN ADMINISTERING OR
DISTRIBUTING THE FUND IN ACCORDANCE WITH THE DIRECTION OF CONGRESS. 
THIS IS MADE CLEAR BY THE STATEMENTS EXCERPTED FROM THE CUSTODIAN'S
BRIEF IN THE MARGIN.  FN1  IT IS SUBSTANTIATED BY UNITED STATES
TREASURY DEPARTMENT GENERAL RULING NO. 12, UPON WHICH THE CUSTODIAN
RELIES.  FN2 

IF THE COURT HAS ANY DOUBT THAT ANYTHING ELSE WAS MEANT BY THE
COMPLAINT OR DECREE, THE PROPER COURSE WOULD BE TO INSERT IN THE DECREE
A MODIFYING PROVISO TO THE EFFECT THAT "NO LIEN OR OTHER INTEREST,
EXCEPT AS BETWEEN THE DEBTOR AND CREDITOR, WAS OBTAINED BY THE
ATTACHMENT PROCEEDINGS IN THE STATE COURT."  SEE LYON V. SINGER, 339
U.S. 841. 

IN MY JUDGMENT A VALID STATE ATTACHMENT, OBTAINED SUBSEQUENT TO THE
BLOCKING ORDER, IS GOOD AS BETWEEN AN ALIEN AND HIS CREDITORS.  I AM
ALSO SURE THAT SUCH AN ATTACHMENT HAS NO COMPELLING POWER UPON THE
ATTORNEY GENERAL IN HIS ADMINISTRATION OF THE TRADING WITH THE ENEMY
ACT. 

PROPPER V. CLARK, 337 U.S. 472, 482-486, SO HOLDS.  IT WAS LIKE THE
PRESENT CASE - A SUIT BY THE ALIEN PROPERTY CUSTODIAN, AFTER A VESTING
ORDER, TO GET POSSESSION OF THE BLOCKED CREDITS.  IN PROPPER V. CLARK,
AS IN THIS CASE, THERE WAS A CLAIM THAT AN INTEREST HAD PASSED TO A
THIRD PARTY, PROPPER, AS PERMANENT RECEIVER BY JUDICIAL DECREE ENTERED
BETWEEN THE BLOCKING AND VESTING ORDERS.  THERE IS NOTHING IN THE GROUP
OF CASES IN LYON V. SINGER, 339 U.S. 841, TO WEAKEN THE HOLDING IN THE
PROPPER CASE.  THE TRANSACTIONS IN THOSE LATER CASES LIKEWISE TOOK
PLACE AFTER A FEDERAL BLOCKING ORDER AND BEFORE A VESTING ORDER BY THE
ALIEN PROPERTY CUSTODIAN.  THE NEW YORK COURT OF APPEALS HAD DECIDED
THAT THE CLAIMANTS HAD PREFERRED CLAIMS UNDER NEW YORK LAW AGAINST THE
ASSETS OF THE ALIEN.  WE RECOGNIZED THOSE CLAIMS SINCE THEY WERE
CONDITIONED UPON LICENSING BY THE ALIEN PROPERTY CUSTODIAN, BUT WE
DISTINCTLY SAID THAT THE RULING IN PROPPER V. CLARK WAS NOT AFFECTED
BECAUSE IN THE PROPPER CASE "THE LIQUIDATOR CLAIMED TITLE TO FROZEN
ASSETS ADVERSELY TO THE CUSTODIAN, AND SOUGHT TO DENY THE CUSTODIAN'S
PARAMOUNT POWER TO VEST THE ALIEN PROPERTY IN THE UNITED STATES." 
THEREFORE THE CLEAR RULE OF THE PROPPER CASE THAT THE CUSTODIAN VESTS
AND ADMINISTERS ENTIRELY FREE FROM EFFECTIVE INTERFERENCE OVER ANY
RIGHTS OR TITLE SECURED BY THE ATTACHMENT STANDS UNIMPAIRED.  IN SUCH A
SITUATION IT DOES NOT SEEM TO ME THAT THERE CAN BE ANY DIFFERENCE
BETWEEN A TITLE ACQUIRED BY A RECEIVER, SUBJECT TO THE CONTROL OF THE
CUSTODIAN AS LICENSOR, AND THE LIEN ACQUIRED BY THE ATTACHING CREDITOR,
SUBJECT TO THE SAME LICENSE LIMITATION.  THE COURT'S DISTINCTION
BETWEEN PROPPER V. CLARK AND THIS CASE SHOULD HAVE NO EFFECT ON THE
RESULT HERE. 

I DISAGREE, TOO, WITH THE COURT'S INTERPRETATION OF THE BRIEF FILED
BY THE GOVERNMENT IN COMMISSION FOR POLISH RELIEF V. BANCA NATIONALA A
RUMANIEI, 288 N.Y. 332, 43 N.E.2D 345.  THE CASE HOLDS ONLY THAT THE
ATTACHMENT IS GOOD BETWEEN THE DEBTOR AND CREDITOR.  IT DOES NOT HOLD
IT GOOD AGAINST THE GOVERNMENT NOR DID THE GOVERNMENT BRIEF, AS I READ
IT, SO CONCEDE.  THE BRIEF MERELY APPROVED SUITS BETWEEN LITIGANTS TO
SETTLE THOSE LITIGANTS' PERSONAL RIGHTS, NOT TO GET TRANSFERS OF OR
LIENS ON FROZEN ASSETS EFFECTIVE AGAINST THE CUSTODIAN.  THAT IS
LITIGATION PURSUANT TO GENERAL RULING NO. 12(4), NOTE 2, SUPRA.  THIS
IS CLEAR FROM THE BRIEF, EXCERPTS FROM WHICH APPEAR BELOW.  FN3 

AS THE COURT DOES NOT AGREE WITH ME ON THE PROPRIETY OF MAKING A
DETERMINATION AT THE PRESENT TIME AS ABOVE SUGGESTED AND HAS LEFT OPEN
FOR FUTURE LITIGATION "ALL FEDERAL QUESTIONS AS TO RECOGNITION BY THE
CUSTODIAN OF THE STATE LAW LIEN, OR PRIORITY OF PAYMENT," I FORBEAR
FROM EXPRESSING MY VIEWS AT LENGTH UNTIL THIS ISSUE IS PRESENTED. 

AS INDICATED ABOVE, I THINK WE SHOULD MODIFY THE JUDGMENT ENTERED
BELOW BY SOME SUCH INSERTION AS I HAVE HERETOFORE SUGGESTED ON PP. 467
468, AND AS SO MODIFIED AFFIRM THAT DECREE. 

FN1  "PETITIONERS COULD NOT THEREAFTER ACQUIRE A PROPERTY INTEREST IN
THE BLOCKED ACCOUNTS WHICH COULD PREVAIL AGAINST A SUBSEQUENT VESTING
BY THE CUSTODIAN."  RESP.  BRIEF, P. 9. 

"PETITIONERS STRESS THAT NOTHING IN THE TRADING WITH THE ENEMY ACT OR
IN THE FREEZING REGULATIONS PROHIBITS THE BRINGING OF SUITS AGAINST
ENEMY NATIONALS IN TIME OF WAR.  THIS IS CORRECT.  INDEED, THE TREASURY
DEPARTMENT IN ADMINISTERING THE CONTROLS TOOK THE POSITION FROM THE
OUTSET THAT PARTIES WERE FREE TO SEEK ADJUDICATIONS OF THEIR RIGHTS VIS
A-VIS BLOCKED NATIONALS."  ID. P. 13.    "RESPONDENT DOES NOT CONTEND
THAT THE ATTACHMENTS WERE ABSOUTELY VOID OR THAT THEY WERE ILLEGAL.  HE
AGREES THAT FREEZING DID NOT PURPORT TO PROHIBIT THE RESORT TO JUDICIAL
PROCESS.  HE STATES SIMPLY THAT TRANSFERS IN BLOCKED PROPERTY WERE
PROSCRIBED AND THAT THE JUDICIAL HAND WAS STAYED TO THAT EXTENT.  NOT
ATTACHMENTS, BUT TRANSFERS, WERE CONTROLLED.  THAT MEANS THAT A FIXED
OR ABSOLUTE LIEN (AS DISTINGUISHED FROM 'A POTENTIAL RIGHT OR A
CONTINGENT LIEN') COULD NOT BE CREATED WITHOUT A RELEASE OF THE
PROPERTY FROM FEDERAL CONTROL.  SINCE THE PERFECTING OF A FIXED LIEN IS
CHARACTERISTICALLY SUBJECT TO NUMEROUS CONTINGENCIES UNDER STATE LAW,
E.G., THE ENTRY OF A JUDGMENT IN PLAINTIFF'S FAVOR, IT WOULD SEEM CLEAR
THAT THE IMPOSITION OF A FURTHER CONDITION BY OPERATION OF FEDERAL LAW
THE PROCUREMENT OF A LICENSE - IS NOT INCONSISTENT WITH PROCEEDINGS BY
WAY OF ATTACHMENT. 

"IN EFFECT, THEN, THE TREASURY SAID THIS: - BLOCKED PROPERTY IS
SUBJECT TO A FEDERAL INJUNCTION AGAINST TRANSFER.  THIS DOES NOT
PREVENT A STATE COURT FROM ISSUING A WRIT WHICH ALSO DIRECTS THE HOLDER
OF THE BLOCKED PROPERTY TO KEEP IT INTACT.  AND IF THE STATE COURT, IN
THESE CIRCUMSTANCES, REGARDS ITS OWN PROCESS AS OFFERING A SUFFICIENT
PROMISE OF CONTROL TO WARRANT AN EXERCISE OF ITS JURISDICTION, THERE IS
NO OBJECTION TO ITS DECLARING THE RIGHTS OF A SUITOR AS AGAINST THE
OWNER OF THE BLOCKED PROPERTY.  BUT THE STATE COURT'S POWER TO CONFER A
PROPRIETARY INTEREST UPON THE SUITOR NECESSARILY AWAITS A LIFTING OF
THE FEDERAL INJUNCTION."  ID. PP. 49-50. 

FN2  "(D)  ANY TRANSFER AFFECTED BY THE ORDER AND/OR THIS GENERAL
RULING AND INVOLVED IN, OR ARISING OUT OF, ANY ACTION OR PROCEEDING IN
ANY COURT WITHIN THE UNITED STATES SHALL, SO FAR AS AFFECTED BY THE
ORDER AND/OR THIS GENERAL RULING, BE VALID AND ENFORCEABLE FOR THE
PURPOSE OF DETERMINING FOR THE PARTIES TO THE ACTION OR PROCEEDING THE
RIGHTS AND LIABILITIES THEREIN LITIGATED; PROVIDED, HOWEVER, THAT NO
ATTACHMENT, JUDGMENT, DECREE, LIEN, EXECUTION, GARNISHMENT, OR OTHER
JUDICIAL PROCESS SHALL CONFER OR CREATE A GREATER RIGHT, POWER, OR
PRIVILEGE WITH RESPECT TO, OR INTEREST IN, ANY PROPERTY IN A BLOCKED
ACCOUNT THAN THE OWNER OF SUCH PROPERTY COULD CREATE OR CONFER BY
VOLUNTARY ACT PRIOR TO THE ISSUANCE OF AN APPROPRIATE LICENSE."  7 FED.
REG. 2991. 

FN3  "ALMOST FROM THE OUTSET OF FREEZING CONTROL THE TREASURY HAS HAD
TO DEAL WITH THE PROBLEM OF LITIGATION, PARTICULARLY ATTACHMENT
ACTIONS, AS AFFECTING BLOCKED ASSETS.  AS WILL BE MORE FULLY DEVELOPED
LATER IN THIS BRIEF, THE TREASURY DID NOT WANT TO INTERFERE WITH THE
ORDERLY CONSIDERATION OF CASES BY THE COURTS, INCLUDING ATTACHMENT
ACTIONS, AND AT THE SAME TIME IT WAS ESSENTIAL TO THE GOVERNMENT'S
PROGRAM THAT THE RESULTS OF COURT PROCEEDINGS BE SUBJECT TO THE SAME
POLICY CONSIDERATIONS FROM THE POINT OF VIEW OF FREEZING CONTROL AS
THOSE ARISING OR RECOGNIZED THROUGH VOLUNTARY ACTION OF THE PARTIES. 

"INDEED THE TREASURY REGARDS THE COURTS AS THE APPROPRIATE PLACE TO
DECIDE DISPUTED CLAIMS AND SUGGESTED TO PARTIES THAT THEY ADJUDICATE
SUCH CLAIMS BEFORE APPLYING FOR A LICENSE TO PERMIT THE TRANSFER OF
FUNDS.  THE JUDGMENT WAS THEN REGARDED BY THE TREASURY AS THE
EQUIVALENT OF A VOLUNTARY PAYMENT ORDER WITHOUT THE CREATION OR
TRANSFER OF ANY VESTED INTEREST, AND A LICENSE WAS ISSUED OR DENIED ON
THE SAME PRINCIPLES OF POLICY AS THOSE GOVERNING VOLUNTARY TRANSFERS OF
BLOCKED ASSETS."  P. 14. 

"THE JUDICIAL PROCEDURE IS GENERALLY GEARED TO DEAL ONLY WITH THE
RIGHTS AND LIABILITIES OF THE PARTIES TO THE PROCEEDING.  THE JUDICIAL
PROCEDURE IS NOT THE MOST APPROPRIATE FIELD TO DETERMINE THE GREAT
POLITICAL QUESTIONS OF NATIONAL AND INTERNATIONAL MAGNITUDE THAT WILL
INHERE IN THE ULTIMATE DISPOSITION OF FOREIGN-OWNED PROPERTY IN THIS
COUNTRY AND IN THE DETERMINATION OF THE RIGHTS OF GROUPS OF AMERICAN
AND FOREIGN CREDITORS.  THESE GREAT PROBLEMS OF NATIONAL POLICY CAN BE
HANDLED ADEQUATELY ONLY BY THE FEDERAL GOVERNMENT.  THE DETERMINATION
OF SUCH NATIONAL POLICIES SHOULD NOT BE FORCED BY JUDICIAL DECISIONS IN
PARTICULAR CASES DETERMINING THE RIGHTS AND LIABILITIES OF THE PARTIES
TO THE PROCEEDINGS.  THE QUESTIONS ARE POLITICAL AND FOR THE EXECUTIVE,
NOT THE JUDICIARY.  THEY ARE FEDERAL, NOT STATE.  THEY CALL FOR UNIFORM
TREATMENT WITH REFERENCE TO LARGE NATIONAL POLICIES, NOT FOR DISPARATE
LOCAL TREATMENT TO ACCORD WITH LOCAL POLICIES.  MOREOVER CONGRESS AND
THE EXECUTIVE HAVE SET UP MACHINERY TO DEAL WITH THE PROBLEMS, A
MACHINERY DESIGNED TO RELATE THE SOLUTION TO THE WHOLE WAR EFFORT AND
THE INEVITABLE POSTWAR PROBLEMS."  P. 12. 

"FREEZING CONTROL IN PROTECTING BLOCKED ASSETS OF OVERRUN COUNTRIES
AND THEIR NATIONALS HAD AS A FURTHER PURPOSE THE DESIRE TO MAKE SUCH
ASSETS AVAILABLE, AT LEAST IN PART, IN THE WAR EFFORT AGAINST THE
AXIS.  NEEDLESS TO SAY, IF THERE CAN BE UNLICENSED TRANSFERS OF TITLE
TO BLOCKED PROPERTY, THE TRUE OWNERS OF SUCH BLOCKED PROPERTY MAY BE
PREVENTED FROM USING THE PROPERTY IN THE WAR EFFORT.  ...  "  PP. 9
10. 

"'BLOCKED DOLLARS' ARE STILL VALUABLE DOLLARS.  WITH A LICENSE THEY
ARE 'FREE DOLLARS.'  MORE THAN EIGHTY GENERAL LICENSES AND 400,000
SPECIAL LICENSES HAVE BEEN ISSUED UNDER THE FREEZING CONTROL,
AUTHORIZING THE USE OF BLOCKED DOLLARS FOR STATED PURPOSES.  MOREOVER,
'HOPE SPRINGS ETERNAL IN THE HUMAN BREAST.'  THERE ARE ALWAYS THOSE WHO
ARE WILLING TO WAIT FOR THE DAY WHEN THE WAR IS OVER WITH THE
EXPECTATION THAT THE FREEZING CONTROL WILL BE LIFTED."  P. 8. 
..END :









ZITTMAN V. MCGRATH, 341 U.S. 471 


ARGUED FEBRUARY 28, 1951.  - DECIDED MAY 28, 1951.  - 182 F.2D 349,
AFFIRMED. 


AFTER "TRANSFERS" OF ASSETS OF GERMAN NATIONALS HAD BEEN FORBIDDEN BY
EXECUTIVE ORDERS ISSUED PURSUANT TO THE TRADING WITH THE ENEMY ACT,
PETITIONERS, AMERICAN HOLDERS OF CLAIMS AGAINST A GERMAN BANK, LEVIED
ATTACHMENTS ON ACCOUNTS OF THE DEBTOR IN A NEW YORK BANK AND PROSECUTED
THE CLAIMS TO JUDGMENTS IN NEW YORK STATE COURTS.  THE ALIEN PROPERTY
CUSTODIAN SERVED ON THE NEW YORK BANK VESTING ORDERS AND ALSO A
"TURNOVER DIRECTIVE" REQUIRING THAT ALL FUNDS IN THE ACCOUNTS BE TURNED
OVER TO HIM "TO BE HELD, ADMINISTERED AND ACCOUNTED FOR AS PROVIDED BY
LAW."  IN AN ACTION IN THE FEDERAL DISTRICT COURT, THE CUSTODIAN SOUGHT
A DECLARATORY JUDGMENT THAT HE IS "ENTITLED TO POSSESSION" OF THE FUNDS
IN THE ACCOUNTS.  HELD:  THE CUSTODIAN IS ENTITLED TO POSSESSION OF THE
FUNDS AND TO ADMINISTER THEM.  ZITTMAN V. MCGRATH, ANTE, P. 446,
DISTINGUISHED.  PP. 472-474. 

(A)  THE TRANSFER OF POSSESSION OF THE FUNDS IN THIS CASE DOES NOT
OPERATE TO DEPRIVE ANY CLASS OF CREDITORS OF RIGHTS, BUT TAKES OVER THE
ESTATE FOR ADMINISTRATION.  PP. 473-474. 

(B)  ALL QUESTIONS AS TO THE PETITIONERS' CLAIMS, JUDGMENTS, OR
PRIORITIES ARE RESERVED FOR DECISION IN THE PROCEEDINGS PRESCRIBED BY
THE ACT.  P. 474. 

ZITTMAN V. MCGRATH, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY
CUSTODIAN. 

NO. 299.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT* . 

*TOGETHER WITH NO. 315, MCCARTHY V. MCGRATH, ATTORNEY GENERAL,
SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, ALSO ON CERTIORARI TO THE
SAME COURT. 

IN DECLARATORY JUDGMENT ACTIONS AGAINST PETITIONERS BY THE ALIEN
PROPERTY CUSTODIAN, THE DISTRICT COURT GRANTED THE RELIEF SOUGHT.  82
F.SUPP.  740.  THE COURT OF APPEALS AFFIRMED.  182 F.2D 349.  THIS
COURT GRANTED CERTIORARI.  340 U.S. 882.  AFFIRMED, P. 474. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO NOS. 298 AND 314, ANTE, P. 446.  HERE,
THE PETITIONERS ATTACHED THE ACCOUNTS OF THE DEUTSCHE REICHSBANK WITH
THE FEDERAL RESERVE BANK OF NEW YORK.  THE ATTACHMENTS WERE LEVIED AT
THE SAME TIME AS THOSE LEVIED ON THE CHASE BANK ACCOUNTS, AND WERE ALSO
FOLLOWED BY STATE COURT ACTIONS AGAINST THE REICHSBANK, CULMINATING IN
DEFAULT JUDGMENTS THAT HAVE NOT BEEN SATISFIED BECAUSE OF THE FEDERAL
GOVERNMENT'S FREEZING PROGRAM.  THE ALIEN PROPERTY CUSTODIAN SERVED ON
THE FEDERAL RESERVE BANK VESTING ORDERS SIMILAR TO THOSE SERVED ON THE
CHASE BANK IN NOS. 298 AND 314.  BUT HE ALSO SERVED ON THE FEDERAL
RESERVE BANK A "TURNOVER DIRECTIVE" DESCRIBING THE SPECIFIC PROPERTY
WHICH HE REQUIRED TO BE "TURNED OVER TO THE UNDERSIGNED TO BE HELD,
ADMINISTERED AND ACCOUNTED FOR AS PROVIDED BY LAW," AND CALLING
ATTENTION TO THE PROTECTION WHICH SEC. 5(B) OF THE TRADING WITH THE
ENEMY ACT GIVES FOR COMPLIANCE.  NO SUCH DIRECTIVE WAS SERVED ON THE
CHASE BANK IN THE COMPANION CASES.  THE FEDERAL RESERVE BANK REFUSED TO
RELEASE TO HIM THE PORTION OF THE ACCOUNTS THAT HAD BEEN SUBJECTED TO
THE ATTACHMENT LEVIES.  THE CUSTODIAN HAS BEEN SUSTAINED BY THE COURTS
BELOW, AS HE WAS IN NOS. 298 AND 314, ON THE BASIS OF PROPPER V. CLARK,
337 U.S. 472.  FN1 

ALL THAT WE HAVE SAID IN SUBDIVISIONS NUMBERED I, II, AND III IN NOS.
298 AND 314, RESPECTING THE NATURE OF THE RIGHTS ACQUIRED UNDER NEW
YORK LAW BY AN ATTACHING CREDITOR, AND THE POSITION OCCUPIED BY THOSE
RIGHTS CONSISTENT WITH THE FREEZING PROGRAM, IS EQUALLY APPLICABLE TO
THE ATTACHMENTS HERE INVOLVED.  THE IMPORTANT DISTINCTION BETWEEN THESE
CASES AND THEIR COMPANIONS IS IN THE VESTING ORDERS ISSUED BY THE
CUSTODIAN AND THE NATURE OF THE JUDGMENT HE HAS SOUGHT IN EACH.  THE
ONLY ORDER ISSUED TO THE CHASE BANK WAS A "RIGHT, TITLE, AND INTEREST"
VESTING ORDER, WHICH, AS WE UNDERSTAND THE CUSTODIAN TO CONCEDE, PUT
HIM IN THE PLACE OF THE GERMAN BANKS AND LEFT OPEN TO JUDICIAL
DETERMINATION WHETHER ANY VALID INTERESTS AS AGAINST ANYONE WERE
CREATED BY THE ATTACHMENTS.  IN THE LITIGATION INVOLVING THE CHASE
BANK, THE CUSTODIAN SOUGHT A DECLARATORY JUDGMENT THAT THE FREEZING
PROGRAM PRECLUDED ATTACHING CREDITORS FROM OBTAINING ANY INTEREST IN
THE BLOCKED PROPERTY GOOD AS AGAINST THE DEBTORS. 

IN THESE CASES THE CUSTODIAN PURSUED A DIFFERENT COURSE, NOT ONLY IN
THAT HE SERVED ON THE FEDERAL RESERVE BANK A "TURNOVER DIRECTIVE," BUT
ALSO IN THAT THE RELIEF ASKED IN THIS CASE OMITS ANY REQUEST FOR A
DECLARATION THAT THE ATTACHMENTS ARE INVALID.  HE ASKS A DECREE ONLY
THAT THE CUSTODIAN IS "ENTITLED TO POSSESSION" OF THE ACCOUNTS IN THEIR
ENTIRETY.  IN OTHER WORDS, IN THE ACTIONS INVOLVING THE CHASE BANK THE
CUSTODIAN STEPPED INTO THE SHOES OF THE GERMAN BANKS AND SOUGHT TO FREE
THEIR TITLES OF THE STATE LIENS; HERE HE SEEKS TO STEP INTO THE SHOES
OF THE FEDERAL RESERVE BANK AS POSSESSOR OF THE CREDITS AND FUNDS,
LEAVING UNADJUDICATED THE EFFECT OF SUCH SUBSTITUTION OF CUSTODY UPON
THE ATTACHING CREDITORS' RIGHTS. 

WHILE THE STATUTE UNDER WHICH THE FUNDS ARE TO BE "HELD, ADMINISTERED
AND ACCOUNTED FOR" AUTHORIZES THE VESTING OF SUCH FOREIGN-OWNED
PROPERTY IN THE CUSTODIAN AND ITS ADMINISTRATION "IN THE INTEREST OF
AND FOR THE BENEFIT OF THE UNITED STATES,"  FN2  IT IS NOT A
CONFISCATION MEASURE, BUT A LIQUIDATION MEASURE FOR THE PROTECTION OF
AMERICAN CREDITORS.  IT PROVIDES FOR THE FILING AND PROVING OF CLAIMS
AND STATES THAT THE FUNDS "SHALL BE EQUITABLY APPLIED" FOR THE PAYMENT
OF DEBTS.  FN3  IF THE CUSTODIAN DISALLOWS A CLAIM, OR IF HE DISALLOWS
A CLAIM OF PRIORITY WHERE CLAIMS EXCEED ASSETS, THE CLAIMANT MAY SEEK
RELIEF IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA.  FN4  THE TRANSFER OF POSSESSION OF THESE FUNDS DOES NOT
PURPORT TO WORK ANY AUTOMATIC DEPRIVATION OF RIGHTS OF ANY CLASS OF
CREDITORS, BUT TAKES OVER THE ESTATE FOR ADMINISTRATION. 

IN VIEW OF THESE FACTS, WE DECIDE, AND DECIDE ONLY, THAT THE
CUSTODIAN HAS POWER TO POSSESS HIMSELF OF THESE FUNDS AND TO ADMINISTER
THEM.  TO HOLD OTHERWISE WOULD BE INCOMPATIBLE WITH THE FEDERAL
PROGRAM.  THE CONSEQUENCES, IF ANY, THAT FLOW FROM THE SUBSTITUTION OF
THE CUSTODIAN IN PLACE OF THE BANK AS HOLDER OF THE FUNDS, UPON RIGHTS
DERIVED FROM VALID STATE COURT JUDGMENTS SECURED BY ATTACHMENT, ARE NOT
RIPE FOR DETERMINATION.  THEY MAY NEVER COME INTO CONTROVERSY.  ALL
QUESTIONS AS TO THE PETITIONERS' CLAIMS, JUDGMENTS, OR PRIORITIES ARE
RESERVED FOR DECISION IN THE PROCEEDINGS PRESCRIBED BY STATUTE. 

THE POWER OF THE UNITED STATES TO TAKE AND ADMINISTER THE FUND IS
PARAMOUNT.  THE JUDGMENT BELOW MUST, THEREFORE, AFFIRMED. 

FN1  82 F.SUPP.  740; 182 F.2D 349. 

FN2  TRADING WITH THE ENEMY ACT OF 1917, 40 STAT. 411, AS AMENDED,
SEC. 5(B)(1), 55 STAT. 839. 

FN3  SEC. 34(A), 60 STAT. 925. 

FN4  ID. SEC. 34(E), (F). 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :









MCCLOSKEY V. MCGRATH, 341 U.S. 475 


NO. 324.  ARGUED FEBRUARY 28, 1951.  - DECIDED MAY 28, 1951.  - 182 F.2D
349, AFFIRMED IN PART AND REVERSED IN PART. 


PETITIONER IS THE SHERIFF WHO LEVIED THE ATTACHMENTS AGAINST ACCOUNTS
OF GERMAN NATIONALS "FROZEN" UNDER EXECUTIVE ORDERS NOS. 8785 AND 8389,
WHICH WERE INVOLVED IN THE TWO PRECEDING DECISIONS (ZITTMAN V. MCGRATH,
ANTE, PP. 446, 471).  HIS CLAIM FOR HIS FEES WAS DENIED BY THE COURTS
BELOW INCIDENTALLY TO THEIR DENIAL OF THE RIGHTS ASSERTED BY THE
ATTACHING CREDITORS.  HELD:  THE JUDGMENT IS REVERSED INSOFAR AS THE
FEES OF THE SHERIFF RELATE TO THE ACCOUNTS TO WHICH THE CUSTODIAN WAS
HELD NOT ENTITLED TO POSSESSION, AND AFFIRMED INSOFAR AS THEY RELATE TO
THE ACCOUNTS TO WHICH THE CUSTODIAN WAS HELD ENTITLED TO POSSESSION -
WITHOUT PREJUDICE TO CERTAIN RIGHTS OF THE SHERIFF AS INDICATED IN THE
OPINION.  PP. 475-478. 

MCCLOSKEY, SHERIFF, V. MCGRATH, ATTORNEY GENERAL, SUCCESSOR TO THE
ALIEN PROPERTY CUSTODIAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PETITIONER'S CLAIM TO HIS FEES AS SHERIFF WERE DENIED BY THE COURTS
BELOW INCIDENTALLY TO THE DENIAL OF THE RIGHTS ASSERTED BY THE
ATTACHING CREDITORS.  82 F.SUPP.  740; 182 F.2D 349.  THIS COURT
GRANTED CERTIORARI.  340 U.S. 882.  REVERSED IN PART AND AFFIRMED IN
PART, P. 478. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A DEPENDENT COMPANION TO THE FOUR PRECEDING CASES, NOS.
298 AND 314, ANTE, P. 446, AND NOS. 299 AND 315, ANTE, P. 471.  THE
PETITIONER IS THE SHERIFF WHO LEVIED THE ATTACHMENTS INVOLVED IN THOSE
CASES.  HE WAS IMPLEADED BY THE CUSTODIAN AS A PARTY DEFENDANT, AND HIS
AMENDED ANSWER, AFTER ADOPTING THE POSITION OF HIS CO-DEFENDANTS AND
URGING DISMISSAL OF THE CUSTODIAN'S PETITION, AS AN ALTERNATIVE ASKED:
"THAT IF THE COURT DETERMINES THAT THE PETITIONER IS ENTITLED TO
POSSESSION OF THE PROPERTY ATTACHED BY THE SHERIFF PURSUANT TO THE
ZITTMAN AND MCCARTHY ATTACHMENTS, ANY DECREE TO BE ENTERED THEREON
SHOULD PROVIDE FOR PAYMENT OF THE SHERIFF'S STATUTORY POUNDAGE FEES
ARISING FROM SAID ATTACHMENTS  ...  "  HIS CLAIM WAS DENIED BY THE
COURTS BELOW INCIDENTALLY TO THEIR DENIAL OF THE RIGHTS ASSERTED BY THE
ATTACHING CREDITORS.  THE DISTRICT COURT SAID ONLY:  "BECAUSE THE
ATTACHMENTS BY THE SHERIFF DID NOT TRANSFER ANY RIGHT, TITLE OR
INTEREST IN THE BLOCKED PROPERTY, HIS APPLICATION FOR PAYMENT OF HIS
FEES BY THE CUSTODIAN MUST BE DENIED."  FN1  THE COURT OF APPEALS
AFFIRMED, PER CURIAM, ON THE GROUND STATED BY THE DISTRICT COURT.  FN2 

THE PRECISE STATUS OF THE SHERIFF'S CLAIMS UNDER NEW YORK LAW, IF
THEY HAVE BEEN SETTLED, IS NOT MADE CLEAR TO US BY THE RECORD, AND,
UNDER THE CIRCUMSTANCES OF THIS CASE, WE CANNOT PRESUME TO SAY, NOR
COULD THE DISTRICT COURT, WHAT THE NEW YORK COURTS WOULD ALLOW TO THE
SHERIFF.  FN3  NOR CAN WE ASCERTAIN FROM THE RECORD THE EXTENT TO WHICH
HIS FEES HAVE BEEN OR MAY BE INCLUDED IN THE JUDGMENTS DEALT WITH IN
THE PRECEDING CASES.  THE RECORD DOES NOT DISCLOSE THAT THEY HAVE BEEN
ALLOWED OR FIXED BY THE JUDGE WHO ISSUED THE ATTACHMENT WARRANTS. 
ALTHOUGH THE SHERIFF HAS NEVER HAD THE ATTACHED FUNDS IN HIS
POSSESSION, THERE IS AUTHORITY THAT SUCH LACK OF PHYSICAL POSSESSION
DOES NOT DEPRIVE HIM OF HIS RIGHT TO POUNDAGE N4.  FURTHERMORE, THE
UNCERTAIN VALUES OF THE LEVIES MADE, IN VIEW OF THEIR NATURE AS DEFINED
IN COMMISSION FOR POLISH RELIEF V. BANCA NATIONALA A RUMANIEI, 288 N.Y.
332, 43 N.E.2D 345(1942), AND THE INABILITY OF THE SHERIFF TO SEIZE THE
ATTACHED FUNDS, MAKE THE DETERMINATION OF THE SHERIFF'S FEES A MATTER
FOR THE APPROPRIATE NEW YORK STATE COURT.  ALSO, WHETHER THOSE FEES
CONSTITUTE SEPARATE CLAIMS OR ARE TAXABLE COSTS WHICH BECOME PART OF
THE JUDGMENTS TO WHICH THEY RELATE IS FOR STATE COURT DETERMINATION. 

WE HAVE NO DOUBT THAT, IN ONE FORM OR ANOTHER, THE PROPER FEES OF THE
SHERIFF SHOULD BE TREATED BY FEDERAL LAW IN THE SAME MANNER AS THE
ATTACHMENTS AND JUDGMENTS TO WHICH THEY APPERTAIN.  THEREFORE, INSOFAR
AS THE ACCOUNTS HELD BY THE CHASE BANK WERE CONCERNED, THE CUSTODIAN
WAS NOT ENTITLED TO A DECLARATION THAT THE SHERIFF'S FEES DID NOT
CONSTITUTE A VALID CLAIM.  THE CUSTODIAN SOUGHT NO SUCH DECLARATION
WHERE THE ACCOUNTS HELD BY THE FEDERAL RESERVE BANK WERE CONCERNED, BUT
ONLY ASSERTED THAT THE SHERIFF'S CLAIMS COULD NOT DEFEAT HIS RIGHT OF
POSSESSION.  TO PRESERVE THE PARAMOUNT AUTHORITY OF THE FEDERAL
GOVERNMENT OVER THE FROZEN FUNDS, WE HOLD THEY COULD NOT.  ACCORDINGLY,
THE JUDGMENT IS REVERSED INSOFAR AS THE FEES OF THE SHERIFF RELATE TO
THE ATTACHMENTS OF THE ACCOUNTS HELD BY THE CHASE BANK AND AFFIRMED
INSOFAR AS THEY RELATE TO THE ACCOUNTS HELD BY THE FEDERAL RESERVE
BANK. 

THIS, HOWEVER, IS WITHOUT PREJUDICE TO THE RIGHT OF THE SHERIFF TO
HAVE THE NEW YORK COURTS DETERMINE THE STATE LAW STATUS OF HIS FEES,
AND, IN THE CASE OF THE ATTACHMENTS OF THE ACCOUNTS HELD BY THE CHASE
BANK, TO HAVE THEM, AS FIXED, INCLUDED IN THE JUDGMENTS OR OTHERWISE
GIVEN THE SAME POSITION AS SUCH JUDGMENTS.  AND NO PREJUDICE IS
INTENDED TO HIS RIGHTS, IN THE CASE OF THE ATTACHMENTS OF THE ACCOUNTS
HELD BY THE FEDERAL RESERVE BANK, TO PRESENT HIS FEE CLAIMS, AS SETTLED
BY THE NEW YORK COURTS, TO THE CUSTODIAN IN THE SAME MANNER AND SUBJECT
TO THE SAME PROCEDURES AS THE JUDGMENT CREDITORS IN NOS. 299 AND 315. 
IT IS SO ORDERED. 

FN1  82 F.SUPP.  740, 742-743. 

FN2  182 F.2D 349. 

FN3  THE JUDGMENT CREDITORS WERE ENTITLED TO COSTS OF COURSE WHEN
JUDGMENT WAS RENDERED IN THEIR FAVOR.  N.Y. CIV. PRAC.  ACT SEC.
1470(11).  THEY WERE ENTITLED TO INCLUDE IN THEIR BILLS OF COSTS, AND
HENCE IN THEIR JUDGMENTS, NECESSARY DISBURSEMENTS, WHICH MAY INCLUDE
CERTAIN SHERIFF'S FEES.  ID. SEC. 1518.  FOR EACH ATTACHMENT LEVY MADE,
THE SHERIFF IS ENTITLED TO A SPECIFIED AMOUNT " ...  AND, ALSO, SUCH
ADDITIONAL COMPENSATION FOR HIS TROUBLE AND EXPENSES IN TAKING
POSSESSION OF AND PRESERVING THE PROPERTY AS THE JUDGE ISSUING THE
WARRANT  ...  " ALLOWS.  ID. SEC. 1558(2).  THERE ARE ALSO OTHER FEES
FOR INVENTORY, MILEAGE, AND POUNDAGE UPON THE VALUE OF THE PROPERTY
ATTACHED.  IBID.  IF EXECUTION IS ISSUED, ADDITIONAL FEES ACCRUE, AND A
SCHEDULE OF PERCENTAGES "FOR COLLECTING MONEY BY VIRTUE OF AN
EXECUTION, A WARRANT OF ATTACHMENT, OR AN ATTACHMENT FOR THE PAYMENT OF
MONEY IN AN ACTION OR A SPECIAL PROCEEDING  ...  " IS PROVIDED.  ID.
SEC. 1558(7).  WHERE "THE WARRANT OF ATTACHMENT IS VACATED OR SET ASIDE
BY ORDER OF THE COURT," THE SHERIFF IS ENTITLED TO POUNDAGE AND TO SUCH
ADDITIONAL COMPENSATION FOR TAKING AND PRESERVING THE PROPERTY AS THE
JUDGE WHO ISSUED THE WARRANT MAY ALLOW, AND THE COURT OR JUDGE MAY
ISSUE AN ORDER "REQUIRING THE PARTY AT WHOSE INSTANCE THE ATTACHMENT IS
ISSUED TO PAY THE SAME TO THE SHERIFF."  ID. SEC. 1558(18). 

FN4  DISTILLERS FACTORS CORP. V. COUNTRY DISTILLERS PRODUCTS, 81
N.Y.S.2D 857, 859. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















HOFFMAN V. UNITED STATES, 341 U.S. 479 


NO. 513.  ARGUED APRIL 25, 1951.  - DECIDED MAY 28, 1951.  - 185 F.2D
617, REVERSED. 


1.  CLAIMING THAT ANSWERS MIGHT TEND TO INCRIMINATE HIM OF A FEDERAL
OFFENSE, PETITIONER REFUSED TO ANSWER CERTAIN QUESTIONS ASKED HIM BY A
SPECIAL FEDERAL GRAND JURY MAKING A COMPREHENSIVE INVESTIGATION OF
VIOLATIONS OF NUMEROUS FEDERAL CRIMINAL STATUTES AND CONSPIRACIES TO
VIOLATE THEM.  HE HAD BEEN PUBLICLY CHARGED WITH BEING KNOWN AS AN
UNDERWORLD CHARACTER AND A RACKETEER WITH A 20-YEAR POLICE RECORD,
INCLUDING A PRISON SENTENCE ON A NARCOTICS CHARGE.  THE QUESTIONS HE
REFUSED TO ANSWER PERTAINED TO THE NATURE OF HIS PRESENT OCCUPATION AND
HIS CONTACTS AND CONNECTIONS WITH, AND KNOWLEDGE OF THE WHEREABOUTS OF,
A FUGITIVE WITNESS SOUGHT BY THE SAME GRAND JURY AND FOR WHOM A BENCH
WARRANT HAD BEEN REQUESTED.  THE JUDGE WHO HAD IMPANELED THE GRAND JURY
AND WAS FAMILIAR WITH THESE CIRCUMSTANCES FOUND NO REAL AND SUBSTANTIAL
DANGER OF INCRIMINATION TO PETITIONER AND ORDERED HIM TO ANSWER. 
PETITIONER STATED THAT HE WOULD NOT OBEY THE ORDER, AND HE WAS
CONVICTED OF CRIMINAL CONTEMPT.  HELD: THE CONVICTION IS REVERSED.  PP.
480-490. 

(A)  THE PRIVILEGE AGAINST SELF-INCRIMINATION GUARANTEED BY THE FIFTH
AMENDMENT EXTENDS NOT ONLY TO ANSWERS THAT WOULD IN THEMSELVES SUPPORT
A CONVICTION UNDER A FEDERAL CRIMINAL STATUTE BUT ALSO TO THOSE WHICH
WOULD FURNISH A LINK IN THE CHAIN OF EVIDENCE NEEDED TO PROSECUTE THE
CLAIMANT FOR A FEDERAL CRIME.  BLAU V. UNITED STATES, 340 U.S. 159.  P.
486. 

(B)  TO SUSTAIN THE PRIVILEGE, IT NEED ONLY BE EVIDENT 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.  PP. 486-487. 

(C)  IN THIS CASE, THE COURT SHOULD HAVE CONSIDERED THAT THE CHIEF
OCCUPATION OF SOME PERSONS INVOLVES EVASION OF FEDERAL CRIMINAL LAWS
AND THAT TRUTHFUL ANSWERS BY PETITIONER TO THE QUESTIONS AS TO THE
NATURE OF HIS BUSINESS MIGHT HAVE DISCLOSED THAT HE WAS ENGAGED IN SUCH
PROSCRIBED ACTIVITY.  PP. 487-488. 

(D)  ANSWERS TO THE QUESTIONS AS TO HIS CONTACTS AND CONNECTIONS WITH
THE FUGITIVE WITNESS AND KNOWLEDGE OF HIS WHEREABOUTS AT THE TIME MIGHT
HAVE EXPOSED PETITIONER TO PERIL OF PROSECUTION FOR FEDERAL OFFENSES
RANGING FROM OBSTRUCTION TO CONSPIRACY.  P. 488. 

2.  TWO WEEKS AFTER HIS CONVICTION OF CONTEMPT AND DENIAL OF BAIL
PENDING APPEAL, PETITIONER FILED IN THE DISTRICT COURT A PAPER
CAPTIONED "PETITION FOR RECONSIDERATION OF ALLOWANCE OF BAIL PENDING
APPEAL," ACCOMPANIED BY AN AFFIDAVIT AND EXHIBITS EXPLAINING HIS
REFUSAL TO ANSWER THE QUESTIONS AND PRESENTING FACTS TO JUSTIFY HIS
FEAR THAT ANSWERS WOULD TEND TO INCRIMINATE HIM.  THESE PAPERS WERE
FILED IN THE COURT OF APPEALS AS A SUPPLEMENTAL RECORD ON APPEAL; BUT
THAT COURT STRUCK THEM FROM THE RECORD AND AFFIRMED THE CONVICTION. 
HELD:  THE SUPPLEMENTAL RECORD SHOULD HAVE BEEN CONSIDERED BY THE COURT
OF APPEALS, SINCE IT WAS ACTUALLY DIRECTED TO THE POWER OF THE
COMMITTING COURT TO DISCHARGE THE CONTEMNOR FOR GOOD CAUSE - A POWER
WHICH COURTS SHOULD BE SOLICITOUS TO INVOKE WHEN IMPORTANT
CONSTITUTIONAL OBJECTIONS ARE RENEWED.  PP. 489-490. 

HOFFMAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN A FEDERAL DISTRICT COURT, PETITIONER WAS CONVICTED OF CONTEMPT FOR
REFUSAL TO ANSWER QUESTIONS BEFORE A FEDERAL GRAND JURY.  THE COURT OF
APPEALS AFFIRMED.  185 F.2D 617.  THIS COURT GRANTED CERTIORARI.  340
U.S. 946.  REVERSED, P. 490. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

PETITIONER HAS BEEN CONVICTED OF CRIMINAL CONTEMPT FOR REFUSING TO
OBEY A FEDERAL COURT ORDER REQUIRING HIM TO ANSWER CERTAIN QUESTIONS
ASKED IN A GRAND JURY INVESTIGATION.  HE RAISES HERE IMPORTANT ISSUES
AS TO THE APPLICATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION UNDER
THE FIFTH AMENDMENT, CLAIMED TO JUSTIFY HIS REFUSAL. 

A SPECIAL FEDERAL GRAND JURY WAS CONVENED AT PHILADELPHIA ON
SEPTEMBER 14, 1950, TO INVESTIGATE FRAUDS UPON THE FEDERAL GOVERNMENT,
INCLUDING VIOLATIONS OF THE CUSTOMS, NARCOTICS AND INTERNAL REVENUE
LIQUOR LAWS OF THE UNITED STATES, THE WHITE SLAVE TRAFFIC ACT, PERJURY,
BRIBERY, AND OTHER FEDERAL CRIMINAL LAWS, AND CONSPIRACY TO COMMIT ALL
SUCH OFFENSES.  IN RESPONSE TO SUBPOENA PETITIONER APPEARED TO TESTIFY
ON THE DAY THE GRAND JURY WAS EMPANELED, AND WAS EXAMINED ON OCTOBER
3.  THE PERTINENT INTERROGATION, IN WHICH HE REFUSED TO ANSWER,
FOLLOWS: 

"Q.  WHAT DO YOU DO NOW, MR. HOFFMAN? 

"A.  I REFUSE TO ANSWER. 

"Q.  HAVE YOU BEEN IN THE SAME UNDERTAKING SINCE THE FIRST OF THE
YEAR? 

"A.  I DON'T UNDERSTAND THE QUESTION. 

"Q.  HAVE YOU BEEN DOING THE SAME THING YOU ARE DOING NOW SINCE THE
FIRST OF THE YEAR? 

"A.  I REFUSE TO ANSWER. 

"Q.  DO YOU KNOW MR. WILLIAM WEISBERG? 

"A.  I DO. 

"Q.  HOW LONG HAVE YOU KNOWN HIM? 

"A.  PRACTICALLY TWENTY YEARS, I GUESS. 

"Q.  WHEN DID YOU LAST SEE HIM? 

"A.  I REFUSE TO ANSWER. 

"Q.  HAVE YOU SEEN HIM THIS WEEK? 

"A.  I REFUSE TO ANSWER. 

"Q.  DO YOU KNOW THAT A SUBPOENA HAS BEEN ISSUED FOR MR. WEISBERG? 

"A.  I HEARD ABOUT IT IN COURT. 

"Q.  HAVE YOU TALKED WITH HIM ON THE TELEPHONE THIS WEEK? 

"A.  I REFUSE TO ANSWER. 

"Q.  DO YOU KNOW WHERE MR. WILLIAM WEISBERG IS NOW? 

"A.  I REFUSE TO ANSWER."  IT WAS STIPULATED THAT PETITIONER DECLINED
TO ANSWER ON THE GROUND THAT HIS ANSWERS MIGHT TEND TO INCRIMINATE HIM
OF A FEDERAL OFFENSE. 

PETITIONER'S CLAIM OF PRIVILEGE WAS CHALLENGED BY THE GOVERNMENT IN
THE FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA,
WHICH FOUND NO REAL AND SUBSTANTIAL DANGER OF INCRIMINATION TO
PETITIONER AND ORDERED HIM TO RETURN TO THE GRAND JURY AND ANSWER. 
PETITIONER STATED IN OPEN COURT THAT HE WOULD NOT OBEY THE ORDER, AND
ON OCTOBER 5 WAS ADJUDGED IN CRIMINAL CONTEMPT AND SENTENCED TO FIVE
MONTHS IMPRISONMENT.  18 U.S.C. SEC. 401; FEDERAL RULE OF CRIMINAL
PROCEDURE 42(A). 

PETITIONER APPEALED TO THE COURT OF APPEALS FOR THE THIRD CIRCUIT,
WHERE THE RECORD WAS DOCKETED ON OCTOBER 11.  AFTER DENIAL BY THE
DISTRICT COURT OF HIS REQUEST FOR BAIL PENDING APPEAL, PETITIONER ON
OCTOBER 20 FILED IN THAT COURT A "PETITION FOR RECONSIDERATION OF
ALLOWANCE OF BAIL PENDING APPEAL," ALLEGING THAT "ON THE BASIS OF THE
FACTS CONTAINED IN HIS AFFIDAVIT, ATTACHED ...  , HE WAS JUSTIFIED IN
HIS REFUSAL TO ANSWER THE QUESTIONS AS AFORESAID, OR, IN ANY EVENT,
THAT THERE IS SO SUBSTANTIAL A QUESTION INVOLVED THAT YOUR PETITIONER
SHOULD BE RELEASED ON BAIL ...  "  IN THE ACCOMPANYING AFFIDAVIT
PETITIONER ASSERTED THAT 

"HE ASSUMED WHEN HE REFUSED TO ANSWER THE QUESTIONS INVOLVED BEFORE
THE GRAND JURY, THAT BOTH IT AND THE COURT WERE COGNIZANT OF, AND TOOK
INTO CONSIDERATION, THE FACTS ON WHICH HE BASED HIS REFUSALS TO
ANSWER. 

"HE HAS SINCE BEEN ADVISED, AFTER HIS COMMITMENT, THAT THE COURT DID
NOT CONSIDER ANY OF SAID FACTS UPON WHICH HE RELIED AND, ON THE
CONTRARY, THE COURT CONSIDERED ONLY THE BARE RECORD (OF THE QUESTIONS
AND ANSWERS AS SET OUT ABOVE). 

"IN THE INTEREST OF JUSTICE AND PARTICULARLY IN AID OF A PROPER
DETERMINATION OF THE ABOVE PETITION, HE SUBMITS THE FOLLOWING IN
SUPPORT OF HIS POSITION THAT HE GENUINELY FEARED TO ANSWER THE
QUESTIONS PROPOUNDED: 

"(A)  THIS INVESTIGATION WAS STATED, IN THE CHARGE OF THE COURT TO
THE GRAND JURY, TO COVER 'THE GAMUT OF ALL CRIMES COVERED BY FEDERAL
STATUTE.'  ... 

"(B)  AFFIANT HAS BEEN PUBLICLY CHARGED WITH BEING A KNOWN UNDERWORLD
CHARACTER, AND A RACKETEER WITH A TWENTY YEAR POLICE RECORD, INCLUDING
A PRISON SENTENCE ON A NARCOTICS CHARGE.  ... 

"(C)  AFFIANT, WHILE WAITING TO TESTIFY BEFORE THE GRAND JURY, WAS
PHOTOGRAPHED WITH ONE JOSEPH N. BRANSKY, HEAD OF THE PHILADELPHIA
OFFICE OF THE UNITED STATES BUREAU OF NARCOTICS.  ... 

"(D)  AFFIANT WAS QUESTIONED CONCERNING THE WHEREABOUTS OF A WITNESS
WHO HAD NOT BEEN SERVED WITH A SUBPOENA AND FOR WHOM A BENCH WARRANT
WAS SOUGHT BY THE GOVERNMENT PROSECUTOR.  ... 

"ON THE BASIS OF THE ABOVE PUBLIC FACTS AS WELL AS THE FACTS WITHIN
HIS OWN PERSONAL KNOWLEDGE, AFFIANT AVERS THAT HE HAD A REAL FEAR THAT
THE ANSWERS TO THE QUESTIONS ASKED BY THE GRAND JURY WOULD INCRIMINATE
HIM OF A FEDERAL OFFENSE." 

INCLUDED AS APPENDICES TO THE AFFIDAVIT WERE CLIPPINGS FROM LOCAL
NEWSPAPERS, OF DATES CURRENT WITH THE GRANDJURY PROCEEDING, REPORTING
THE FACTS ASSERTED IN THE AFFIDAVIT.  ON OCTOBER 23 THE DISTRICT COURT
ALLOWED BAIL.  ON THE FOLLOWING DAY THE PETITION FOR RECONSIDERATION OF
ALLOWANCE OF BAIL, INCLUDING AFFIDAVIT AND APPENDICES, WAS FILED IN THE
COURT OF APPEALS AS A SUPPLEMENTAL RECORD ON APPEAL.  THE GOVERNMENT
MOVED TO STRIKE THIS MATTER ON THE GROUND THAT IT WAS NOT PROPERLY PART
OF THE APPEAL RECORD. 

THE COURT OF APPEALS GRANTED THE MOTION TO STRIKE AND AFFIRMED THE
CONVICTION.  185 F.2D 617(1950).  WITH RESPECT TO THE QUESTIONS
REGARDING WEISBERG, THE COURT HELD UNANIMOUSLY THAT "THE RELATIONSHIP
BETWEEN POSSIBLE ADMISSIONS IN ANSWER TO THE QUESTIONS  ... AND THE
PROSCRIPTION OF (PERTINENT FEDERAL CRIMINAL STATUTES (18 U.S.C. SECS.
371, 1501)) WOULD NEED TO BE MUCH CLOSER FOR US TO CONCLUDE THAT THERE
WAS REAL DANGER IN ANSWERING."  AS TO THE QUESTIONS CONCERNING
PETITIONER'S BUSINESS, THE COURT OBSERVED THAT "IT IS NOW QUITE
APPARENT THAT THE APPELLANT COULD HAVE SHOWN BEYOND QUESTION THAT THE
DANGER WAS NOT FANCIFUL."  IN THE COURT'S VIEW THE DATA SUBMITTED IN
THE SUPPLEMENTAL RECORD "WOULD RATHER CLEARLY BE ADEQUATE TO ESTABLISH
CIRCUMSTANTIALLY THE LIKELIHOOD THAT APPELLANT'S ASSERTION OF FEAR OF
INCRIMINATION WAS NOT MERE CONTUMACY."  BUT THE COURT OF APPEALS
CONCLUDED, AGAIN UNANIMOUSLY, THAT THE INFORMATION OFFERED IN SUPPORT
OF THE PETITION FOR RECONSIDERATION OF BAIL "WAS NOT BEFORE THE COURT
WHEN IT FOUND APPELLANT IN CONTEMPT, AND THEREFORE CANNOT BE CONSIDERED
NOW."  THUS LIMITED TO THE RECORD ORIGINALLY FILED, THE MAJORITY OF THE
COURT WAS OF THE OPINION, WITH RESPECT TO THE BUSINESS QUESTIONS, THAT
"THE WITNESS HERE FAILED TO GIVE THE JUDGE ANY INFORMATION WHICH WOULD
ALLOW THE LATTER TO RULE INTELLIGENTLY ON THE CLAIM OF PRIVILEGE FOR
THE WITNESS SIMPLY REFUSED TO SAY ANYTHING AND GAVE NO FACTS TO SHOW
WHY HE REFUSED TO SAY ANYTHING."  ONE JUDGE DISSENTED, CONCLUDING THAT
THE DISTRICT COURT KNEW THAT "THE SETTING OF THE CONTROVERSY" WAS "A
GRAND JURY INVESTIGATION OF RACKETEERING AND FEDERAL CRIME IN THE
VICINITY" AND "SHOULD HAVE ADVERTED TO THE FACT OF COMMON KNOWLEDGE
THAT THERE EXISTS A CLASS OF PERSONS WHO LIVE BY ACTIVITY PROHIBITED BY
FEDERAL CRIMINAL LAWS AND THAT SOME OF THESE PERSONS WOULD BE SUMMONED
AS WITNESSES IN THIS GRAND JURY INVESTIGATION." 

PETITIONER UNSUCCESSFULLY SOUGHT REHEARING IN THE COURT OF APPEALS,
URGING REMAND TO THE DISTRICT COURT TO PERMIT RECONSIDERATION OF THE
CONVICTION ON THE BASIS OF DATA IN THE SUPPLEMENTAL RECORD.  WE GRANTED
CERTIORARI, 340 U.S. 946(1951). 

THIS IS ANOTHER OF FIVE PROCEEDINGS BEFORE THIS COURT DURING THE
PRESENT TERM IN EACH OF WHICH THE PRIVILEGE AGAINST SELF-INCRIMINATION
HAS BEEN ASSERTED IN THE COURSE OF FEDERAL GRAND-JURY INVESTIGATIONS* .
A NUMBER OF SIMILAR CASES HAVE BEEN CONSIDERED RECENTLY BY THE LOWER
COURTS.  THE SIGNAL INCREASE IN SUCH LITIGATION EMPHASIZES THE
CONTINUING NECESSITY THAT PROSECUTORS AND COURTS ALIKE BE "ALERT TO
REPRESS" ANY ABUSES OF THE INVESTIGATORY POWER INVOKED, BEARING IN MIND
THAT WHILE GRAND JURIES "MAY PROCEED, EITHER UPON THEIR OWN KNOWLEDGE
OR UPON THE EXAMINATION OF WITNESSES, TO INQUIRE  ...  WHETHER A CRIME
COGNIZABLE BY THE COURT HAS BEEN COMMITTED," HALE V. HENKEL, 201 U.S.
43, 65(1906), YET "THE MOST VALUABLE FUNCTION OF THE GRAND JURY  ...
(HAS BEEN) NOT ONLY TO EXAMINE INTO THE COMMISSION OF CRIMES, BUT TO
STAND BETWEEN THE PROSECUTOR AND THE ACCUSED," ID. AT 59.  ENFORCEMENT
OFFICIALS TAKING THE INITIATIVE IN GRAND-JURY PROCEEDINGS AND COURTS
CHARGED WITH THEIR SUPERINTENDENCE SHOULD BE SENSITIVE TO THE
CONSIDERATIONS MAKING FOR WISE EXERCISE OF SUCH INVESTIGATORY POWER,
NOT ONLY WHERE CONSTITUTIONAL ISSUES MAY BE INVOLVED BUT ALSO WHERE THE
NONCOERCIVE ASSISTANCE OF OTHER FEDERAL AGENCIES MAY RENDER IT
UNNECESSARY TO INVOKE THE COMPULSIVE PROCESS OF THE GRAND JURY. 

*(PATRICIA) BLAU V. UNITED STATES, 340 U.S. 159(1950); (IRVING) BLAU
V. UNITED STATES, 340 U.S. 332(1951); ROGERS V. UNITED STATES, 340 U.S.
367(1951); UNITED STATES V. GREENBERG, 187 F.2D 35(C.A. 3D CIR. 1951),
PETITION FOR WRIT OF CERTIORARI PENDING.  (SEE POST, P. 944.) 

THE FIFTH AMENDMENT DECLARES IN PART THAT "NO PERSON  ...  SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  THIS
GUARANTEE AGAINST TESTIMONIAL COMPULSION, LIKE OTHER PROVISIONS OF THE
BILL OF RIGHTS, "WAS ADDED TO THE ORIGINAL CONSTITUTION IN THE
CONVICTION THAT TOO HIGH A PRICE MAY BE PAID EVEN FOR THE UNHAMPERED
ENFORCEMENT OF THE CRIMINAL LAW AND THAT, IN ITS ATTAINMENT, OTHER
SOCIAL OBJECTS OF A FREE SOCIETY SHOULD NOT BE SACRIFICED."  FELDMAN V.
UNITED STATES, 322 U.S. 487, 489(1944).  THIS PROVISION OF THE
AMENDMENT MUST BE ACCORDED LIBERAL CONSTRUCTION IN FAVOR OF THE RIGHT
IT WAS INTENDED TO SECURE.  COUNSELMAN V. HITCHCOCK, 142 U.S. 547,
562(1892); ARNDSTEIN V. MCCARTHY, 254 U.S. 71, 72-73(1920). 

THE PRIVILEGE AFFORDED NOT ONLY EXTENDS TO ANSWERS THAT WOULD IN
THEMSELVES SUPPORT A CONVICTION UNDER A FEDERAL CRIMINAL STATUTE BUT
LIKEWISE EMBRACES THOSE WHICH WOULD FURNISH A LINK IN THE CHAIN OF
EVIDENCE NEEDED TO PROSECUTE THE CLAIMANT FOR A FEDERAL CRIME. 
(PATRICIA) BLAU V. UNITED STATES, 340 U.S. 159(1950).  BUT THIS
PROTECTION MUST BE CONFINED TO INSTANCES WHERE THE WITNESS HAS
REASONABLE CAUSE TO APPREHEND DANGER FROM A DIRECT ANSWER.  MASON V.
UNITED STATES, 244 U.S. 362, 365(1917), AND CASES CITED.  THE WITNESS
IS NOT EXONERATED FROM ANSWERING MERELY BECAUSE HE DECLARES THAT IN SO
DOING HE WOULD INCRIMINATE HIMSELF - HIS SAY-SO DOES NOT OF ITSELF
ESTABLISH THE HAZARD OF INCRIMINATION.  IT IS FOR THE COURT TO SAY
WHETHER HIS SILENCE IS JUSTIFIED, ROGERS V. UNITED STATES, 340 U.S.
367(1951), AND TO REQUIRE HIM TO ANSWER IF "IT CLEARLY APPEARS TO THE
COURT THAT HE IS MISTAKEN."  TEMPLE V. COMMONWEALTH, 75 VA. 892,
899(1881).  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.  TO
SUSTAIN THE PRIVILEGE, IT NEED ONLY BE EVIDENT 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.  THE
TRIAL JUDGE IN APPRAISING THE CLAIM "MUST BE GOVERNED AS MUCH BY HIS
PERSONAL PERCEPTION OF THE PECULIARITIES OF THE CASE AS BY THE FACTS
ACTUALLY IN EVIDENCE."  SEE TAFT, J., IN EX PARTE IRVINE, 74 F. 954,
960(C.C.S.D. OHIO, 1896). 

WHAT WERE THE CIRCUMSTANCES WHICH THE DISTRICT COURT SHOULD HAVE
CONSIDERED IN RULING UPON PETITIONER'S CLAIM OF PRIVILEGE?  THIS IS THE
BACKGROUND AS INDICATED BY THE RECORD: 

THE JUDGE WHO RULED ON THE PRIVILEGE HAD HIMSELF IMPANELED THE
SPECIAL GRAND JURY TO INVESTIGATE "RACKETS" IN THE DISTRICT.  HE HAD
EXPLAINED TO THE JURY THAT "THE ATTORNEY GENERAL'S OFFICE HAS COME INTO
THIS DISTRICT TO CONDUCT AN INVESTIGATION  ...  (THAT) WILL RUN THE
GAMUT OF ALL CRIMES COVERED BY FEDERAL STATUTE."  "IF RACKETS INFEST OR
ENCRUST OUR SYSTEM OF GOVERNMENT," HE INSTRUCTED, "JUST AS ANY BLIGHT
ATTACKS ANY OTHER GROWTH, IT WITHERS AND DIES.  ...  "  SUBPOENAS HAD
ISSUED FOR SOME TWENTY WITNESSES, BUT ONLY ELEVEN HAD BEEN SERVED; AS
THE PROSECUTOR PUT IT, HE WAS "HAVING TROUBLE FINDING SOME BIG SHOTS." 
SEVERAL OF THOSE WHO DID APPEAR AND WERE CALLED INTO THE GRAND-JURY
ROOM BEFORE PETITIONER HAD REFUSED TO ANSWER QUESTIONS UNTIL ORDERED TO
DO SO BY THE COURT.  THE PROSECUTOR HAD REQUESTED BENCH WARRANTS FOR
EIGHT OF THE NINE WHO HAD NOT APPEARED THE FIRST DAY OF THE SESSION,
ONE OF WHOM WAS WILLIAM WEISBERG.  PETITIONER HAD ADMITTED HAVING KNOWN
WEISBERG FOR ABOUT TWENTY YEARS.  IN ADDITION, COUNSEL FOR PETITIONER
HAD ADVISED THE COURT THAT "IT HAS BEEN BROADLY PUBLISHED THAT
(PETITIONER) HAS A POLICE RECORD."    THE COURT SHOULD HAVE CONSIDERED,
IN CONNECTION WITH THE BUSINESS QUESTIONS, THAT THE CHIEF OCCUPATION OF
SOME PERSONS INVOLVES EVASION OF FEDERAL CRIMINAL LAWS, AND THAT
TRUTHFUL ANSWERS BY PETITIONER TO THESE QUESTIONS MIGHT HAVE DISCLOSED
THAT HE WAS ENGAGED IN SUCH PROSCRIBED ACTIVITY. 

ALSO, THE COURT SHOULD HAVE RECOGNIZED, IN CONSIDERING THE WEISBERG
QUESTIONS, THAT ONE PERSON WITH A POLICE RECORD SUMMONED TO TESTIFY
BEFORE A GRAND JURY INVESTIGATING THE RACKETS MIGHT BE HIDING OR
HELPING TO HIDE ANOTHER PERSON OF QUESTIONABLE REPUTE SOUGHT AS A
WITNESS.  TO BE SURE, THE GOVERNMENT MAY INQUIRE OF WITNESSES BEFORE
THE GRAND JURY AS TO THE WHEREABOUTS OF UNLOCATED WITNESSES; ORDINARILY
THE ANSWERS TO SUCH QUESTIONS ARE HARMLESS IF NOT FRUITLESS.  BUT OF
THE SEVEN QUESTIONS RELATING TO WEISBERG (OF WHICH THREE WERE
ANSWERED), THREE WERE DESIGNED TO DRAW INFORMATION AS TO PETITIONER'S
CONTACTS AND CONNECTION WITH THE FUGITIVE WITNESS; AND THE FINAL
QUESTION, PERHAPS AN AFTERTHOUGHT OF THE PROSECUTOR, INQUIRED OF
WEISBERG'S WHEREABOUTS AT THE TIME.  ALL OF THEM COULD EASILY HAVE
REQUIRED ANSWERS THAT WOULD FORGE LINKS IN A CHAIN OF FACTS IMPERILING
PETITIONER WITH CONVICTION OF A FEDERAL CRIME.  THE THREE QUESTIONS, IF
ANSWERED AFFIRMATIVELY, WOULD ESTABLISH CONTACTS BETWEEN PETITIONER AND
WEISBERG DURING THE CRUCIAL PERIOD WHEN THE LATTER WAS ELUDING THE
GRAND JURY; AND IN THE CONTEXT OF THESE INQUIRIES THE LAST QUESTION
MIGHT WELL HAVE CALLED FOR DISCLOSURE THAT WEISBERG WAS HIDING AWAY ON
PETITIONER'S PREMISES OR WITH HIS ASSISTANCE.  PETITIONER COULD
REASONABLY HAVE SENSED THE PERIL OF PROSECUTION FOR FEDERAL OFFENSES
RANGING FROM OBSTRUCTION TO CONSPIRACY. 

IN THIS SETTING IT WAS NOT "PERFECTLY CLEAR, FROM A CAREFUL
CONSIDERATION OF ALL THE CIRCUMSTANCES IN THE CASE, THAT THE WITNESS IS
MISTAKEN, AND THAT THE (ANSWERS) CANNOT POSSIBLY HAVE SUCH TENDENCY" TO
INCRIMINATE.  TEMPLE V. COMMONWEALTH, 75 VA. 892, 898(1881), CITED WITH
APPROVAL IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 579-580(1892).  SEE
ALSO, ARNDSTEIN V. MCCARTHY, 254 U.S. 71(1920). 

THIS CONCLUSION IS BUTTRESSED BY THE SUPPLEMENTAL RECORD.  IT SHOWED
THAT PETITIONER HAD A TWENTY-YEAR POLICE RECORD AND HAD BEEN PUBLICLY
LABELED AN "UNDERWORLD CHARACTER AND RACKETEER"; THAT THE SENATE CRIME
INVESTIGATING COMMITTEE HAD PLACED HIS NAME ON A LIST OF "KNOWN
GANGSTERS" FROM THE PHILADELPHIA AREA WHO HAD MADE MIAMI BEACH THEIR
HEADQUARTERS; THAT PHILADELPHIA POLICE OFFICIALS HAD DESCRIBED HIM AS
"THE KING OF THE SHORE RACKETS WHO LIVES BY THE GUN"; THAT HE HAD
SERVED A SENTENCE ON A NARCOTICS CHARGE; AND THAT HIS PREVIOUS
CONVICTION WAS DRAMATIZED BY A PICTURE APPEARING IN THE LOCAL PRESS
WHILE HE WAS WAITING TO TESTIFY, IN WHICH PETITIONER WAS PHOTOGRAPHED
WITH THE HEAD OF THE PHILADELPHIA OFFICE OF THE UNITED STATES BUREAU OF
NARCOTICS IN AN ACCUSING POSE. 

IT APPEARS THAT THE PETITION WHICH COMPRISED THE SUPPLEMENTAL RECORD,
THOUGH CAPTIONED A "PETITION FOR RECONSIDERATION OF ALLOWANCE OF BAIL
PENDING APPEAL," WAS BY ITS TERMS AN APPLICATION TO THE DISTRICT COURT
TO VACATE THE CONTEMPT ORDER ON CONSTITUTIONAL GROUNDS, AND
ALTERNATIVELY A SECOND MOTION FOR BAIL.  CLEARLY THIS PETITION, FILED
BUT TWO WEEKS AFTER THE CONTEMPT ORDER, WAS DIRECTED TO THE POWER OF
THE COMMITTING COURT TO DISCHARGE THE CONTEMNOR FOR GOOD CAUSE - A
POWER WHICH COURTS SHOULD BE SOLICITOUS TO INVOKE WHEN IMPORTANT
CONSTITUTIONAL OBJECTIONS ARE RENEWED.  CF. GOULED V. UNITED STATES,
255 U.S. 298(1921).  THE ENDS OF JUSTICE REQUIRE DISCHARGE OF ONE
HAVING SUCH A RIGHT WHENEVER FACTS APPEAR SUFFICIENT TO SUSTAIN THE
CLAIM OF PRIVILEGE.  ACCORDINGLY THE SUPPLEMENTAL RECORD SHOULD HAVE
BEEN CONSIDERED BY THE COURT OF APPEALS. 

FOR THESE REASONS WE CANNOT AGREE WITH THE JUDGMENTS BELOW.  IF THIS
RESULT ADDS TO THE BURDEN OF DILIGENCE AND EFFICIENCY RESTING ON
ENFORCEMENT AUTHORITIES, ANY OTHER CONCLUSION WOULD SERIOUSLY
COMPROMISE AN IMPORTANT CONSTITUTIONAL LIBERTY.  "THE IMMEDIATE AND
POTENTIAL EVILS OF COMPULSORY SELF-DISCLOSURE TRANSCEND ANY
DIFFICULTIES THAT THE EXERCISE OF THE PRIVILEGE MAY IMPOSE ON SOCIETY
IN THE DETECTION AND PROSECUTION OF CRIME."  UNITED STATES V. WHITE,
322 U.S. 694, 698(1944).  PERTINENT HERE IS THE OBSERVATION OF MR.
JUSTICE BRANDEIS FOR THIS COURT IN MCCARTHY V. ARNDSTEIN, 266 U.S. 34,
42(1924):  "IF CONGRESS SHOULD HEREAFTER CONCLUDE THAT A FULL
DISCLOSURE  ...  BY THE WITNESSES IS OF GREATER IMPORTANCE THAN THE
POSSIBILITY OF PUNISHING THEM FOR SOME CRIME IN THE PAST, IT CAN, AS IN
OTHER CASES, CONFER THE POWER OF UNRESTRICTED EXAMINATION BY PROVIDING
COMPLETE IMMUNITY."  REVERSED. 

MR. JUSTICE REED DISSENTS.  HE AGREES WITH THE CONCLUSIONS REACHED BY
JUDGES GOODRICH AND KALODNER AS EXPRESSED IN THE OPINION BELOW. 
..END :









HAMMERSTEIN V. SUPERIOR COURT, 341 U.S. 491 


NO. 421.  ARGUED MARCH 9, 1951.  - CAUSE CONTINUED MARCH 26, 1951.  -
DISMISSED MAY 28, 1951.  - WRIT OF CERTIORARI, 340 U.S. 919,
DISMISSED. 


1.  THE SUPREME COURT OF CALIFORNIA HAVING BASED ITS DENIAL OF
CERTIORARI ON PETITIONER'S FAILURE TO APPEAL FROM THE SUPERIOR COURT'S
DEFAULT JUDGMENT, THIS COURT HAS NO JURISDICTION TO REVIEW THE
PROCEEDINGS ARISING FROM THE DEFAULT JUDGMENT.  P. 492. 

2.  THE CALIFORNIA DISTRICT COURT OF APPEAL'S DENIAL OF A WRIT OF
PROHIBITION IN THIS CASE BEING RESTED ON ITS DECISION OF A FEDERAL
QUESTION AND NOT UPON AN INDEPENDENT STATE GROUND, THIS COURT HAS
JURISDICTION TO REVIEW THAT JUDGMENT.  P. 492. 

3.  SINCE PETITIONER COULD HAVE OBTAINED REVIEW OF THE FINAL
ADJUDICATION OF THE MERITS OF THIS CASE BY APPEALING FROM THE DEFAULT
JUDGMENT, AND SINCE THE SUPREME COURT OF CALIFORNIA APPARENTLY
REFRAINED FROM TAKING ACTION BECAUSE OF THE EXISTENCE OF THAT REMEDY,
THIS COURT DEEMS IT ADVISABLE NOT TO EXERCISE ITS DISCRETIONARY
JURISDICTION AND DISMISSES THE WRIT OF CERTIORARI AS IMPROVIDENTLY
GRANTED.  PP. 492-493. 

HAMMERSTEIN V. SUPERIOR COURT OF CALIFORNIA ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA AND TO THE DISTRICT
COURT OF APPEAL, SECOND APPELLATE DISTRICT, OF CALIFORNIA. 

PER CURIAM. 

AFTER ARGUMENT, WE CONTINUED THIS CAUSE TO ENABLE THE PETITIONER TO
APPLY FOR A CERTIFICATE OR OTHER EXPRESSION FROM THE APPROPRIATE
CALIFORNIA COURTS TO SHOW WHETHER THE JUDGMENTS RESTED ON ADEQUATE AND
INDEPENDENT STATE GROUNDS OR WHETHER DECISION OF THE FEDERAL QUESTION
WAS NECESSARY TO THE JUDGMENTS RENDERED.  340 U.S. 622(1951).  SUCH
EXPRESSIONS HAVE BEEN OBTAINED. 

THE SUPREME COURT HAS INFORMED US THAT ITS REFUSAL TO GRANT A WRIT OF
CERTIORARI FROM THE DEFAULT JUDGMENT ENTERED BY THE SUPERIOR COURT WAS
BASED UPON PETITIONER'S FAILURE TO UTILIZE THE PROPER CHANNEL OF
REVIEW, NAMELY, HIS FAILURE TO APPEAL FROM THE DEFAULT JUDGMENT. 
INASMUCH AS OUR JURISDICTION TO REVIEW STATE COURT JUDGMENTS EXTENDS
ONLY TO FINAL JUDGMENTS RENDERED "BY THE HIGHEST COURT OF A STATE IN
WHICH A DECISION COULD BE HAD," 28 U.S.C. SEC. 1257, WE HAVE NO
JURISDICTION TO REVIEW THE PROCEEDINGS ARISING FROM THE DEFAULT
JUDGMENT. 

THE DISTRICT COURT OF APPEAL HAS INFORMED US THAT THE DECISION OF THE
FEDERAL QUESTION WAS ESSENTIAL TO ITS DENIAL OF THE APPLICATION FOR
WRIT OF PROHIBITION, AND THAT ITS JUDGMENT DID NOT REST UPON AN
INDEPENDENT STATE GROUND.  THE EXPRESSION WE HAVE RECEIVED FROM THE
CALIFORNIA SUPREME COURT IS ALSO SUSCEPTIBLE OF THE INTERPRETATION THAT
ITS DENIAL OF A HEARING FROM THE JUDGMENT OF THE DISTRICT COURT OF
APPEAL WAS BASED UPON AN ADEQUATE STATE GROUND.  WE DO NOT CONSIDER THE
FORCE OF THAT STATEMENT SINCE IT IS CLEAR THAT THE JUDGMENT PROPERLY
BEFORE US IS THAT OF THE DISTRICT COURT OF APPEAL, WHICH DID DECIDE THE
FEDERAL QUESTION.  SEE AMERICAN RAILWAY EXPRESS CO. V. LEVEE, 263 U.S.
19, 20-21(1923).  WE HAVE JURISDICTION OVER THAT JUDGMENT.  RESCUE ARMY
V. MUNICIPAL COURT, 331 U.S. 549, 565-568(1947); BANDINI CO. V.
SUPERIOR COURT, 284 U.S. 8(1931), AND CASES CITED AT 14. 

THE PRESENCE OF JURISDICTION UPON PETITION FOR WRIT OF CERTIORARI
DOES NOT, OF COURSE, DETERMINE THE EXERCISE OF THAT JURISDICTION, FOR
THE ISSUANCE OF THE WRIT IS DISCRETIONARY.  IN THIS CASE PETITIONER
COULD HAVE OBTAINED REVIEW OF THE FINAL ADJUDICATION OF THE MERITS BY
APPEALING FROM THE DEFAULT JUDGMENT.  THE CALIFORNIA SUPREME COURT HAS
APPARENTLY REFRAINED FROM TAKING ACTION BECAUSE OF THE EXISTENCE OF
THAT REMEDY.  IN THESE CIRCUMSTANCES WE THINK IT ADVISABLE NOT TO
EXERCISE OUR JURISDICTION.  THE WRIT IS THEREFORE DISMISSED AS
IMPROVIDENTLY GRANTED.  CF. LOFTUS V. ILLINOIS, 337 U.S. 935(1949);
PHYLE V. DUFFY, 334 U.S. 431(1948); HEDGEBETH V. NORTH CAROLINA, 334
U.S. 806(1948).  WRIT DISMISSED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE JACKSON AND MR.
JUSTICE CLARK DISSENT. 
..END :



















ALABAMA COMM'N V. SOUTHERN R. CO., 341 U.S. 341 


NO. 395.  ARGUED FEBRUARY 27-28, 1951.  - DECIDED MAY 21, 1951.  - 91
F.SUPP.  980, REVERSED. 


APPELLEE APPLIED TO THE ALABAMA PUBLIC SERVICE COMMISSION FOR A PERMIT
TO DISCONTINUE CERTAIN LOCAL INTRASTATE TRAINS, ON THE GROUND THAT THEY
WERE OPERATING AT A LOSS.  AFTER A HEARING, THE COMMISSION FOUND THAT
THERE WAS PUBLIC NEED FOR THE SERVICE AND ENTERED AN ORDER DENYING THE
PERMIT.  WITHOUT APPLYING TO A STATE COURT FOR THE ADEQUATE JUDICIAL
REVIEW TO WHICH IT WAS ENTITLED AS A MATTER OF RIGHT UNDER STATE LAW,
APPELLEE SUED IN A FEDERAL COURT TO ENJOIN ENFORCEMENT OF THE
COMMISSION'S ORDER.  IT ALLEGED THAT ITS ENFORCEMENT WOULD RESULT IN
IRREPARABLE INJURY, EITHER THROUGH OPERATING LOSSES RESULTING FROM
COMPLIANCE OR THROUGH SEVERE PENALTIES FOR VIOLATIONS.  HELD:  ASSUMING
THAT THE FEDERAL COURT HAD JURISDICTION, SUCH JURISDICTION SHOULD NOT
BE EXERCISED IN THIS CASE AS A MATTER OF SOUND EQUITABLE DISCRETION. 
PP. 342-351. 

(A)  THE PROBLEMS RAISED BY THE DISCONTINUANCE OF THESE TRAINS CANNOT
BE RESOLVED ALONE BY REFERENCE TO APPELLEE'S LOSS IN THEIR OPERATION
BUT DEPEND MORE UPON THE PREDOMINANTLY LOCAL FACTOR OF PUBLIC NEED FOR
THE SERVICE RENDERED.  P. 347. 

(B)  SINCE ADEQUATE STATE-COURT REVIEW OF AN ADMINISTRATIVE ORDER
BASED ON PREDOMINANTLY LOCAL FACTORS IS AVAILABLE TO APPELLEE,
INTERVENTION OF A FEDERAL COURT IS NOT NECESSARY FOR THE PROTECTION OF
FEDERAL RIGHTS.  P. 349. 

(C)  IN THESE CIRCUMSTANCES, UNDER THE USUAL RULE OF COMITY GOVERNING
THE EXERCISE OF EQUITABLE JURISDICTION BY FEDERAL COURTS IN MATTERS
AFFECTING THE DOMESTIC POLICIES OF THE STATES, APPELLEE SHOULD BE LEFT
TO PURSUE THROUGH THE STATE COURTS WHATEVER RIGHTS IT MAY HAVE.  P.
350. 

ALABAMA PUBLIC SERVICE COMMISSION ET AL. V. SOUTHERN RAILWAY CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF ALABAMA. 

IN A SUIT BY A RAILROAD, A THREE-JUDGE FEDERAL DISTRICT COURT
ENJOINED ENFORCEMENT OF AN ORDER OF THE ALABAMA PUBLIC SERVICE
COMMISSION.  91 F.SUPP.  980.  ON APPEAL TO THIS COURT UNDER 28 U.S.C.
SEC. 1253, REVERSED, P. 351. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE SOUTHERN RAILWAY COMPANY, APPELLEE, BROUGHT THIS ACTION IN THE
FEDERAL DISTRICT COURT TO ENJOIN THE MEMBERS OF THE ALABAMA PUBLIC
SERVICE COMMISSION AND THE ATTORNEY GENERAL OF ALABAMA, APPELLANTS,
FROM ENFORCING LAWS OF ALABAMA PROHIBITING DISCONTINUANCE OF CERTAIN
RAILROAD PASSENGER SERVICE.  APPELLEE'S ALABAMA INTRASTATE SERVICE IS
GOVERNED BY A STATUTE PROHIBITING ABANDONMENT OF "ANY PORTION OF ITS
SERVICE TO THE PUBLIC  ...  UNLESS AND UNTIL THERE SHALL FIRST HAVE
BEEN FILED AN APPLICATION FOR A PERMIT TO ABANDON SERVICE AND OBTAINED
FROM THE COMMISSION A PERMIT ALLOWING SUCH ABANDONMENT."  ALA. CODE,
1940, TIT. 48, SEC. 106.  FN1  SEVERE PENALTIES ARE PRESCRIBED FOR
WILFUL VIOLATION OF REGULATORY STATUTES OR ORDERS OF THE COMMISSION BY
UTILITIES OR THEIR EMPLOYEES.  ID. SECS. 399, 400, 405. 

APPELLEE OPERATES A RAILROAD SYSTEM THROUGHOUT THE SOUTH.  THIS CASE,
HOWEVER, INVOLVES ONLY THAT ALABAMA INTRASTATE PASSENGER SERVICE
FURNISHED BY TRAINS NOS. 7 AND 8 OPERATED DAILY BETWEEN TUSCUMBIA,
ALABAMA, AND CHATTANOOGA, TENNESSEE, A DISTANCE OF APPROXIMATELY 145
MILES MAINLY WITHIN ALABAMA.  ON SEPTEMBER 13, 1948, APPELLEE APPLIED
TO THE ALABAMA PUBLIC SERVICE COMMISSION FOR PERMISSION TO DISCONTINUE
TRAINS NOS. 7 AND 8, ALLEGING THAT PUBLIC USE OF THE SERVICE HAD SO
DECLINED THAT REVENUES FELL FAR SHORT OF MEETING DIRECT OPERATING
EXPENSES.  AFTER HEARING EVIDENCE AT HUNTSVILLE, ALABAMA, ONE OF THE
COMMUNITIES SERVED BY THE TRAINS, THE COMMISSION ENTERED AN ORDER ON
APRIL 3, 1950, DENYING PERMISSION TO DISCONTINUE ON THE GROUNDS THAT
THERE EXISTS A PUBLIC NEED FOR THE SERVICE AND THAT APPELLEE HAD NOT
ATTEMPTED TO REDUCE LOSSES THROUGH ADOPTION OF MORE ECONOMICAL
OPERATING METHODS. 

INSTEAD OF PURSUING ITS RIGHT OF APPEAL TO THE STATE COURTS,  FN2
APPELLEE FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT ALLEGING
DIVERSITY OF CITIZENSHIP AND THAT REQUIRING CONTINUED OPERATION OF
TRAINS NOS. 7 AND 8 AT AN OUT-OF-POCKET LOSS AMOUNTED TO A CONFISCATION
OF ITS PROPERTY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  INJUNCTIVE RELIEF WAS PRAYED TO PROTECT APPELLEE
FROM IRREPARABLE LOSS, FLOWING ON THE ONE HAND FROM OPERATING LOSSES IN
COMPLYING WITH ALABAMA LAW OR, ON THE OTHER, FROM SEVERE PENALTIES FOR
DISCONTINUANCE OF SERVICE IN THE FACE OF THAT LAW.  A THREE-JUDGE COURT
FN3  HEARD EVIDENCE, MADE ITS OWN FINDINGS OF FACT AND ENTERED
JUDGMENT HOLDING THE COMMISSION ORDER VOID AND PERMANENTLY ENJOINING
APPELLANTS FROM TAKING ANY STEPS TO ENFORCE EITHER THE COMMISSION ORDER
OR THE PENALTY PROVISIONS OF THE ALABAMA CODE IN RELATION TO THE
DISCONTINUANCE OF TRAINS NOS. 7 AND 8.  FN4  91 F.SUPP.  980 (1950). 
THE CASE IS PROPERLY HERE ON APPEAL, 28 U.S.C. (SUPP. III) SEC. 1253. 

FEDERAL JURISDICTION IN THIS CASE IS GROUNDED UPON DIVERSITY OF
CITIZENSHIP AS WELL AS THE ALLEGATION OF A FEDERAL QUESTION.  EXERCISE
OF THAT JURISDICTION DOES NOT INVOLVE CONSTRUCTION OF A STATE STATUTE
SO ILL-DEFINED THAT A FEDERAL COURT SHOULD HOLD THE CASE PENDING A
DEFINITIVE CONSTRUCTION OF THAT STATUTE IN THE STATE COURTS, E.G.,
RAILROAD COMMISSION OF TEXAS V. PULLMAN CO., 312 U.S. 496(1941);
SHIPMAN V. DUPRE, 339 U.S. 321(1950).  WE ALSO PUT TO ONE SIDE THOSE
CASES IN WHICH THE CONSTITUTIONALITY OF A STATE STATUTE ITSELF IS DRAWN
INTO QUESTION, E.G., TOOMER V. WITSELL, 334 U.S. 385(1948).  FOR IN
THIS CASE APPELLEE ATTACKS A STATE ADMINISTRATIVE ORDER ISSUED UNDER A
VALID REGULATORY STATUTE DESIGNED TO ASSURE THE PROVISION OF ADEQUATE
INTRASTATE SERVICE BY UTILITIES OPERATING WITHIN ALABAMA.  FN5 

APPELLEE TAKES THE POSITION, ADOPTED BY THE COURT BELOW, THAT
WHENEVER A PLAINTIFF CAN SHOW IRREPARABLE LOSS CAUSED BY AN ALLEGEDLY
INVALID STATE ADMINISTRATIVE ORDER RIPE FOR JUDICIAL REVIEW IN THE
STATE COURTS THE PRESENCE OF DIVERSITY OF CITIZENSHIP OR A FEDERAL
QUESTION OPENS THE FEDERAL COURTS TO LITIGATION AS TO THE VALIDITY OF
THAT ORDER, AT LEAST SO LONG AS NO ACTION INVOLVING THE SAME SUBJECT
MATTER IS ACTUALLY PENDING IN THE STATE COURTS.  BUT, IT BY NO MEANS
FOLLOWS FROM THE FACT OF DISTRICT COURT JURISDICTION THAT SUCH
JURISDICTION MUST BE EXERCISED IN THIS CASE.  FN6  AS FRAMED BY THE
COURT IN BURFORD V. SUN OIL CO., 319 U.S. 315, 318(1943), THE QUESTION
BEFORE US IS: 

"ASSUMING THAT THE FEDERAL DISTRICT COURT HAD JURISDICTION, SHOULD
IT, AS A MATTER OF SOUND EQUITABLE DISCRETION, HAVE DECLINED TO
EXERCISE THAT JURISDICTION HERE?" 

IN ASSESSING THE PROPRIETY OF EQUITABLE RELIEF, A REVIEW OF THE
REGULATORY PROBLEM INVOLVED IN THIS CASE IS APPROPRIATE. 

APPELLEE CONDUCTS AN INTERSTATE BUSINESS OVER THE SAME TRACKS AND BY
MEANS OF THE SAME TRAINS INVOLVED IN THIS CASE, AND SUCH INTERSTATE
ACTIVITIES ARE REGULATED BY THE FEDERAL INTERSTATE COMMERCE COMMISSION,
49 U.S.C. SECS. 1 ET SEQ. BUT, IT HAS LONG BEEN HELD THAT THIS
INTERBLENDING OF THE INTERSTATE AND INTRASTATE OPERATIONS DOES NOT
DEPRIVE THE STATES OF THEIR PRIMARY AUTHORITY OVER INTRASTATE
TRANSPORTATION IN THE ABSENCE OF CONGRESSIONAL ACTION SUPPLEMENTING
THAT AUTHORITY.  MINNESOTA RATE CASES, 230 U.S. 352(1913).  AND
CONGRESS HAS SINCE PROVIDED: 

"THAT NOTHING IN (THE INTERSTATE COMMERCE ACT) SHALL IMPAIR OR AFFECT
THE RIGHT OF A STATE, IN THE EXERCISE OF ITS POLICE POWER, TO REQUIRE
JUST AND REASONABLE FREIGHT AND PASSENGER SERVICE FOR INTRASTATE
BUSINESS, EXCEPT INSOFAR AS SUCH REQUIREMENT IS INCONSISTENT WITH ANY
LAWFUL ORDER OF THE (INTERSTATE COMMERCE COMMISSION)."  49 U.S.C. SEC.
1(17)(A).  FN7 

THIS COURT HAS HELD THAT REGULATION OF INTRASTATE RAILROAD SERVICE IS
"PRIMARILY THE CONCERN OF THE STATE."  NORTH CAROLINA V. UNITED STATES,
325 U.S. 507, 511(1945)(RATES); PALMER V. MASSACHUSETTS, 308 U.S.
79(1939)(DISCONTINUANCE OF LOCAL SERVICE). 

STATE AND FEDERAL REGULATORY AGENCIES HAVE EXPRESSED CONCERN OVER THE
CHRONIC DEFICIT ARISING OUT OF PASSENGER TRAIN OPERATIONS AS A THREAT
TO THE FINANCIAL SECURITY OF THE AMERICAN RAILROADS AND HAVE
RECOMMENDED DRASTIC ACTION TO MINIMIZE THE DEFICIT, INCLUDING THE
DISCONTINUANCE OF UNPATRONIZED AND UNPROFITABLE SERVICE.  FN8  HOWEVER,
OUR CONCERN IN THIS CASE IS LIMITED TO THE PROPRIETY OF A FEDERAL COURT
INJUNCTION ENJOINING ENFORCEMENT OF A STATE REGULATORY ORDER.  FN9 

THE COURT BELOW JUSTIFIED THE EXERCISE OF ITS JURISDICTION WITH A
FINDING THAT CONTINUED OPERATION OF TRAINS NOS. 7 AND 8 WOULD RESULT IN
CONFISCATION OF APPELLEE'S PROPERTY IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  IN PURSUING THE THRESHOLD INQUIRY
WHETHER A FEDERAL COURT SHOULD EXERCISE JURISDICTION IN THIS CASE, WE
FIND IT UNNECESSARY TO CONSIDER ISSUES RELATING TO THE MERITS OF
APPELLEE'S CASE, ISSUES WHICH APPELLANTS DID NOT SEE FIT TO RAISE IN
THIS COURT EITHER IN THEIR STATEMENT OF JURISDICTION OR IN THEIR
BRIEFS.  WE DO NOTE THAT IN PASSING UPON SIMILAR CONTENTIONS IN THE
PAST, THIS COURT HAS RECOGNIZED THAT REVIEW OF AN ORDER REQUIRING
PERFORMANCE OF A PARTICULAR UTILITY SERVICE, EVEN AT A PECUNIARY LOSS,
IS SUBJECT TO CONSIDERATIONS QUITE DIFFERENT FROM THOSE INVOLVED WHEN
THE RETURN ON THE ENTIRE INTRASTATE OPERATIONS OF A UTILITY IS DRAWN
INTO QUESTION.  ATLANTIC COAST LINE R. CO. V. NORTH CAROLINA
CORPORATION COMMISSION, 206 U.S. 1, 24-27(1907).  THE PROBLEMS RAISED
BY THE DISCONTINUANCE OF TRAINS NOS. 7 AND 8 CANNOT BE RESOLVED ALONE
BY REFERENCE TO APPELLEE'S LOSS IN THEIR OPERATION BUT DEPEND MORE UPON
THE PREDOMINANTLY LOCAL FACTOR OF PUBLIC NEED FOR THE SERVICE
RENDERED.  CHESAPEAKE & OHIO R. CO. V. PUBLIC SERVICE COMMISSION OF
WEST VIRGINIA, 242 U.S. 603, 608(1917). 

THE ALABAMA COMMISSION, AFTER A HEARING HELD IN THE AREA SERVED,
FOUND A PUBLIC NEED FOR THE SERVICE.  THE COURT BELOW, HEARING EVIDENCE
DE NOVO, FOUND THAT NO PUBLIC NECESSITY EXISTS IN VIEW OF THE INCREASED
USE AND AVAILABILITY OF MOTOR TRANSPORTATION.  WE DO NOT ATTEMPT TO
RESOLVE THESE INCONSISTENT FINDINGS OF FACT.  WE TAKE NOTE, HOWEVER, OF
THE FACT THAT A FEDERAL COURT HAS BEEN ASKED TO INTERVENE IN RESOLVING
THE ESSENTIALLY LOCAL PROBLEM OF BALANCING THE LOSS TO THE RAILROAD
FROM CONTINUED OPERATION OF TRAINS NOS. 7 AND 8 WITH THE PUBLIC NEED
FOR THAT SERVICE IN TUSCUMBIA, DECATUR, HUNTSVILLE, SCOTTSBORO, AND THE
OTHER ALABAMA COMMUNITIES DIRECTLY AFFECTED. 

NOT ONLY HAS ALABAMA ESTABLISHED ITS PUBLIC SERVICE COMMISSION TO
PASS UPON A PROPOSED DISCONTINUANCE OF INTRASTATE TRANSPORTATION
SERVICE, BUT IT HAS ALSO PROVIDED FOR APPEAL FROM ANY FINAL ORDER OF
THE COMMISSION TO THE CIRCUIT COURT OF MONTGOMERY COUNTY AS A MATTER OF
RIGHT.  ALA. CODE, 1940, TIT. 48, SEC. 79.  THAT COURT, AFTER A HEARING
ON THE RECORD CERTIFIED BY THE COMMISSION, IS EMPOWERED TO SET ASIDE
ANY COMMISSION ORDER FOUND TO BE CONTRARY TO THE SUBSTANTIAL WEIGHT OF
THE EVIDENCE OR ERRONEOUS AS A MATTER OF LAW, ID. SEC. 82, AND ITS
DECISION MAY BE APPEALED TO THE ALABAMA SUPREME COURT.  ID. SEC. 90. 
STATUTORY APPEAL FROM AN ORDER OF THE COMMISSION IS AN INTEGRAL PART OF
THE REGULATORY PROCESS UNDER THE ALABAMA CODE.  APPEALS, CONCENTRATED
IN ONE CIRCUIT COURT, ARE "SUPERVISORY IN CHARACTER."  AVERY FREIGHT
LINES, INC. V. WHITE, 245 ALA. 618, 622-623, 18 SO.2D 394, 398(1944). 
THE SUPREME COURT OF ALABAMA HAS HELD THAT IT WILL REVIEW AN ORDER OF
THE COMMISSION AS IF APPEALED DIRECTLY TO IT, ALABAMA PUBLIC SERVICE
COMMISSION V. NUNIS, 252 ALA. 30, 34, 39 SO.2D 409, 412(1949), AND THAT
JUDICIAL REVIEW CALLS FOR AN INDEPENDENT JUDGMENT AS TO BOTH LAW AND
FACTS WHEN A DENIAL OF DUE PROCESS IS ASSERTED.  ALABAMA PUBLIC SERVICE
COMMISSION V. SOUTHERN BELL TEL. & TEL. CO., 253 ALA. 1, 11-12, 42
SO.2D 655, 662(1949). 

THE FACT THAT REVIEW IN THE ALABAMA COURTS IS LIMITED TO THE RECORD
TAKEN BEFORE THE COMMISSION PRESENTS NO CONSTITUTIONAL INFIRMITY. 
WASHINGTON EX REL. OREGON R. & N. CO. V. FAIRCHILD, 224 U.S.
510(1912).  AND, WHATEVER THE SCOPE OF REVIEW OF COMMISSION FINDINGS
WHEN AN ALLEGED DENIAL OF CONSTITUTIONAL RIGHTS IS IN ISSUE, IT IS NOW
SETTLED THAT A UTILITY HAS NO RIGHT TO RELITIGATE FACTUAL QUESTIONS ON
THE GROUND THAT CONSTITUTIONAL RIGHTS ARE INVOLVED.  NEW YORK V. UNITED
STATES, 331 U.S. 284, 334-336(1947); RAILROAD COMMISSION OF TEXAS V.
ROWAN & NICHOLS OIL CO., 311 U.S. 570, 576(1941).  APPELLEE COMPLAINS
OF IRREPARABLE INJURY RESULTING FROM THE COMMISSION ORDER PENDING
JUDICIAL REVIEW, BUT HAS NOT INVOKED THE PROTECTIVE POWERS OF THE
ALABAMA COURTS TO DIRECT THE STAY OR SUPERSEDEAS OF A COMMISSION ORDER
PENDING APPEAL.  ALA. CODE, 1940, TIT. 48, SECS. 81, 84.  FN10
APPELLEE HAS NOT SHOWN THAT THE ALABAMA PROCEDURE FOR REVIEW OF
COMMISSION ORDERS IS IN ANY WAY INADEQUATE TO PRESERVE FOR ULTIMATE
REVIEW IN THIS COURT ANY FEDERAL QUESTIONS ARISING OUT OF SUCH ORDERS. 

AS ADEQUATE STATE COURT REVIEW OF AN ADMINISTRATIVE ORDER BASED UPON
PREDOMINANTLY LOCAL FACTORS IS AVAILABLE TO APPELLEE,  FN11
INTERVENTION OF A FEDERAL COURT IS NOT NECESSARY FOR THE PROTECTION OF
FEDERAL RIGHTS.  EQUITABLE RELIEF MAY BE GRANTED ONLY WHEN THE DISTRICT
COURT, IN ITS SOUND DISCRETION EXERCISED WITH THE "SCRUPULOUS REGARD
FOR THE RIGHTFUL INDEPENDENCE OF STATE GOVERNMENTS WHICH SHOULD AT ALL
TIMES ACTUATE THE FEDERAL COURTS,"  FN12  IS CONVINCED THAT THE
ASSERTED FEDERAL RIGHT CANNOT BE PRESERVED EXCEPT BY GRANTING THE
"EXTRAORDINARY RELIEF OF AN INJUNCTION IN THE FEDERAL COURTS."  FN13
CONSIDERING THAT "(FEW) PUBLIC INTERESTS HAVE A HIGHER CLAIM UPON THE
DISCRETION OF A FEDERAL CHANCELLOR THAN THE AVOIDANCE OF NEEDLESS
FRICTION WITH STATE POLICIES,"  FN14  THE USUAL RULE OF COMITY MUST
GOVERN THE EXERCISE OF EQUITABLE JURISDICTION BY THE DISTRICT COURT IN
THIS CASE.  WHATEVER RIGHTS APPELLEE MAY HAVE ARE TO BE PURSUED THROUGH
THE STATE COURTS.  BURFORD V. SUN OIL CO., 319 U.S. 315(1943); RAILROAD
COMMISSION OF TEXAS V. ROWAN & NICHOLS OIL CO., 311 U.S. 570,
577(1941); RAILROAD COMMISSION OF TEXAS V. ROWAN & NICHOLS OIL CO., 310
U.S. 573, AS AMENDED, 311 U.S. 614, 615(1940). 

THE JOHNSON ACT, 48 STAT. 775(1934), NOW 28 U.S.C. (SUPP. III) SEC.
1342, DOES NOT AFFECT THE RESULT IN THIS CASE.  THAT ACT DEPRIVED
FEDERAL DISTRICT COURTS OF JURISDICTION TO ENJOIN ENFORCEMENT OF
CERTAIN STATE ADMINISTRATIVE ORDERS AFFECTING PUBLIC UTILITY RATES
WHERE "A PLAIN, SPEEDY AND EFFICIENT REMEDY MAY BE HAD IN THE COURTS OF
SUCH STATE."  AS THE ORDER OF THE ALABAMA SERVICE COMMISSION INVOLVED
IN THIS CASE IS NOT ONE AFFECTING APPELLEE'S RATES, THE JOHNSON ACT IS
NOT APPLICABLE.  WE HAVE ASSUMED THROUGHOUT THIS OPINION THAT THE COURT
BELOW HAD JURISDICTION, SUPRA, P. 345, BUT HOLD THAT JURISDICTION
SHOULD NOT BE EXERCISED IN THIS CASE AS A MATTER OF SOUND EQUITABLE
DISCRETION.  AS THIS COURT HELD IN GREAT LAKES DREDGE & DOCK CO. V.
HUFFMAN, 319 U.S. 293, 297-298(1943):    "THIS WITHHOLDING OF
EXTRAORDINARY RELIEF BY COURTS HAVING AUTHORITY TO GIVE IT IS NOT A
DENIAL OF THE JURISDICTION WHICH CONGRESS HAS CONFERRED ON THE FEDERAL
COURTS  ...  ON THE CONTRARY, IT IS BUT A RECOGNITION  ...  THAT A
FEDERAL COURT OF EQUITY  ...  SHOULD STAY ITS HAND IN THE PUBLIC
INTEREST WHEN IT REASONABLY APPEARS THAT PRIVATE INTERESTS WILL NOT
SUFFER  ... 

"IT IS IN THE PUBLIC INTEREST THAT FEDERAL COURTS OF EQUITY SHOULD
EXERCISE THEIR DISCRETIONARY POWER TO GRANT OR WITHHOLD RELIEF SO AS TO
AVOID NEEDLESS OBSTRUCTION OF THE DOMESTIC POLICY OF THE STATES." 
FN15    FOR THE FOREGOING REASONS, THE JUDGMENT OF THE DISTRICT COURT
IS REVERSED. 

FN1  UPON THE FILING OF AN APPLICATION FOR PERMISSION TO DISCONTINUE,
THE STATUTE PROVIDES FOR NOTIFICATION OF MUNICIPAL OFFICIALS,
PUBLICATION OF NOTICE IN THE AREA AFFECTED BY THE CHANGE IN SERVICE,
AND A HEARING BY THE COMMISSION.  ALA. CODE, 1940, TIT. 48, SEC. 107. 
"THE COMMISSION, AS IT DEEMS TO THE BEST INTEREST OF THE PUBLIC, MAY
GRANT IN PART OR IN WHOLE, OR MAY REFUSE SUCH APPLICATIONS,  ...  "
ID. SEC. 108. 

FN2  ALA. CODE, 1940, TIT. 48, SECS. 79 ET SEQ. 

FN3  UNDER 28 U.S.C. (SUPP. III) SEC. 2281, ONLY A DISTRICT COURT OF
THREE JUDGES MAY ISSUE AN INJUNCTION RESTRAINING ENFORCEMENT OF "ANY
STATE STATUTE BY RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN
THE ENFORCEMENT OR EXECUTION OF SUCH STATUTE OR OF AN ORDER MADE BY AN
ADMINISTRATIVE BOARD OR COMMISSION ACTING UNDER STATE STATUTES  ...  "
THE WORD "STATUTE" COMPREHENDS ALL STATE LEGISLATIVE ENACTMENTS,
INCLUDING THOSE EXPRESSED THROUGH ADMINISTRATIVE ORDERS.  AMERICAN
FEDERATION OF LABOR V. WATSON, 327 U.S. 582, 591-593(1946); OKLAHOMA
NATURAL GAS CO. V. RUSSELL, 261 U.S. 290, 292(1923). 

FN4  APPELLANTS CONTEND FOR THE FIRST TIME IN THIS COURT THAT A SUIT
TO RESTRAIN STATE OFFICIALS FROM ENFORCING UNCONSTITUTIONAL STATE LAWS
IS, IN EFFECT, A SUIT AGAINST THE STATE PROHIBITED BY THE ELEVENTH
AMENDMENT.  THE CONTENTION IS NOT TENABLE IN VIEW OF THE MANY CASES
PRIOR TO AND FOLLOWING EX PARTE YOUNG, 209 U.S. 123(1908), IN WHICH
THIS COURT HAS GRANTED SUCH RELIEF OVER THE SAME OBJECTION. 

FN5  THE ALABAMA STATUTE REQUIRING APPLICATION FOR A PERMIT FROM THE
ALABAMA PUBLIC SERVICE COMMISSION BEFORE DISCONTINUING TRANSPORTATION
SERVICE WAS UPHELD BY THIS COURT IN ST. LOUIS-SAN FRANCISCO R. CO. V.
ALABAMA PUBLIC SERVICE COMMISSION, 279 U.S. 560(1929).  THE STATUTE WAS
RECENTLY CONSTRUED AND APPLIED BY THE ALABAMA SUPREME COURT IN ALABAMA
PUBLIC SERVICE COMMISSION V. ATLANTIC COAST LINE R. CO., 253 ALA. 559,
45 SO.2D 449(1950). 

FN6  GULF OIL CORP. V. GILBERT, 330 U.S. 501, 504-505(1947); GREAT
LAKES DREDGE & DOCK CO. V. HUFFMAN, 319 U.S. 293, 297(1943); ATLAS LIFE
INS. CO. V. W.I. SOUTHERN, INC., 306 U.S. 563, 570(1939); CANADA
MALTING CO., LTD. V. PATERSON STEAMSHIPS, LTD., 285 U.S. 413, 422
423(1932). 

FN7  APPELLEE SEEKS TO DISCONTINUE ONLY TWO OF SEVERAL PASSENGER
TRAINS SERVING THE SAME COMMUNITIES.  THIS IS A PROPOSED PARTIAL
DISCONTINUANCE AND NOT AN ABANDONMENT OVER WHICH THE INTERSTATE
COMMERCE COMMISSION IS GIVEN EXCLUSIVE AUTHORITY UNDER 49 U.S.C. SECS.
1(18-20).  COLORADO V. UNITED STATES, 271 U.S. 153(1926).  THE I.C.C.
HAS HELD THAT IT HAS NO AUTHORITY UNDER 49 U.S.C. SECS. 1(18-20) TO
AUTHORIZE A PARTIAL DISCONTINUANCE AS SUCH OF INTRASTATE PASSENGER
SERVICE.  KANSAS CITY SOUTHERN R. CO., 94 I.C.C. 691(1925); NEW YORK
CENTRAL R. CO., 254 I.C.C. 745, 765(1944). 

FN8  SEE 64TH ANNUAL REPORT, INTERSTATE COMMERCE COMMISSION (1950) 5
6; 63D ANNUAL REPORT, INTERSTATE COMMERCE COMMISSION (1949) 4-5;
INCREASED FREIGHT RATES, 1948, 276 I.C.C. 9, 32-40(1949); PROCEEDINGS,
61ST ANNUAL CONVENTION, NATIONAL ASSOCIATION OF RAILROAD AND UTILITIES
COMMISSIONERS (1949) 378-382, 410-414. 

FN9  AS THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION UNDER
49 U.S.C. SEC. 13(4) HAS NOT BEEN INVOKED FOR DECISION AS TO WHETHER
THE CONTINUANCE OF THIS INTRASTATE SERVICE CONSTITUTES AN UNDUE
DISCRIMINATION AGAINST INTERSTATE COMMERCE, WE CANNOT, IN THIS
PROCEEDING, CONSIDER ANY IMPACT THE ORDER OF THE ALABAMA PUBLIC SERVICE
COMMISSION MIGHT HAVE ON INTERSTATE COMMERCE.  WESTERN & ATLANTIC R.
CO. V. GEORGIA PUB. SERV. COMM'N, 267 U.S. 493(1925), AND CASES CITED
THEREIN. 

FN10  COMPARE PACIFIC TEL. & TEL. CO. V. KUYKENDALL, 265 U.S.
196(1924), WHERE SUPERSEDEAS WAS NOT AVAILABLE TO ADEQUATELY PROTECT
FEDERAL RIGHTS, AND OKLAHOMA NATURAL GAS CO. V. RUSSELL, 261 U.S.
290(1923), WHERE SUPERSEDEAS WAS SOUGHT BUT DENIED BY THE STATE COURT. 

FN11  COMPARE SUCH CASES AS BACON V. RUTLAND R. CO., 232 U.S.
134(1914), WHERE STATE JUDICIAL REVIEW PROCEDURES PLUS REVIEW IN THIS
COURT WERE THOUGHT TO BE INADEQUATE.  THIS INADEQUACY DERIVED FROM THE
RATIONALE THAT THE FEDERAL RIGHT OF A UTILITY TO BE PROTECTED FROM
CONFISCATION OF ITS PROPERTY DEPENDED UPON "PURE MATTERS OF FACT" TO
THE EXTENT THAT A DE NOVO HEARING OF SUCH FACTS IN A FEDERAL COURT WAS
ESSENTIAL TO THE PROTECTION OF CONSTITUTIONAL RIGHTS.  PRENTIS V.
ATLANTIC COAST LINE R. CO., 211 U.S. 210, 228(1908).  SEE LILIENTHAL,
THE FEDERAL COURTS AND STATE REGULATION OF PUBLIC UTILITIES, 43 HARV.
L. REV. 379, 424(1930).  THE DECISIONS IN RAILROAD COMMISSION OF TEXAS
V. ROWAN & NICHOLS OIL CO., 311 U.S. 570, 576(1941), AND NEW YORK V.
UNITED STATES, SUPRA, HOLDING THAT DUE PROCESS DOES NOT REQUIRE
RELITIGATION OF FACTUAL MATTERS DETERMINED BY AN ADMINISTRATIVE BODY,
ELIMINATED THE PREMISE UPON WHICH EQUITABLE RELIEF IN BACON RESTED. 

FN12  MATTHEWS V. RODGERS, 284 U.S. 521, 525(1932).  SEE PENNSYLVANIA
V. WILLIAMS, 294 U.S. 176, 185(1935). 

FN13  RAILROAD COMMISSION OF TEXAS V. ROWAN & NICHOLS OIL CO., 310
U.S. 573, AS AMENDED, 311 U.S. 614, 615(1940). 

FN14  RAILROAD COMMISSION OF TEXAS V. PULLMAN CO., 312 U.S. 496,
500(1941). 

FN15  IN MEREDITH V. WINTER HAVEN, 320 U.S. 228, 237(1943), THE COURT
SUSTAINED THE EXERCISE OF JURISDICTION BY A FEDERAL COURT IN A CASE
INVOLVING MATTERS OF STATE LAW, BUT ONLY WHERE DECISION "DOES NOT
REQUIRE THE FEDERAL COURT TO DETERMINE OR SHAPE STATE POLICY GOVERNING
ADMINISTRATIVE AGENCIES" AND "ENTAILS NO INTERFERENCE WITH SUCH
AGENCIES OR WITH THE STATE COURTS."  THE ABSENCE OF A LEGAL REMEDY IN
THE FEDERAL COURTS DOES NOT OF ITSELF JUSTIFY THE GRANTING OF EQUITABLE
RELIEF IN SUCH CASES.  ATLAS LIFE INS. CO. V. W.I. SOUTHERN, INC., 306
U.S. 563, 569-570(1939). 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, CONCURRING
IN THE RESULT. 

THE SOUTHERN RAILWAY ASKED LEAVE OF THE ALABAMA PUBLIC SERVICE
COMMISSION TO TAKE OFF TWO OF ITS PASSENGER TRAINS.  THE COMMISSION,
DEEMING THE SERVICE OF THESE RUNS NECESSARY FOR THE COMMUNITIES SERVED,
DENIED LEAVE.  THE RAILWAY THEREAFTER APPLIED TO THE UNITED STATES
DISTRICT COURT FOR AN INJUNCTION AGAINST THE ORDER OF THE COMMISSION. 
THE BILL ASKING FOR THIS INJUNCTION WAS BASED ON A CLAIM UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE ALLEGATIONS OF THE
BILL AND THE PROOF UNDER IT FAILED TO ESTABLISH A SUBSTANTIAL CLAIM
UNDER THE UNITED STATES CONSTITUTION.  UNDER FAMILIAR, WELL-ESTABLISHED
PRINCIPLES THE DISTRICT COURT SHOULD HAVE DISMISSED THE BILL.  THE
COURT LIKEWISE DIRECTS THE DISTRICT COURT TO DISMISS THE BILL.  BUT IT
CHOOSES TO DO SO BY A LINE OF ARGUMENT IN PLAIN DISREGARD OF
CONGRESSIONAL LEGISLATION.  AGAINST THAT I AM COMPELLED TO PROTEST. 

ALABAMA HAS THE CONVENTIONAL FEATURE OF RAILROAD REGULATORY
LEGISLATION REQUIRING LEAVE OF THE STATE PUBLIC SERVICE COMMISSION FOR
THE DISCONTINUANCE OF TRAINS.  ALA. CODE, 1940, TIT. 48, SEC. 106.  THE
SOUTHERN RAILWAY COMPANY ASKED PERMISSION TO DISCONTINUE THE TWO TRAINS
ON THE GROUND THAT, AS SEGREGATED ITEMS OF ITS TOTAL BUSINESS IN
ALABAMA, THESE TRAINS WERE OPERATING AT A SUBSTANTIAL LOSS.  THE
COMMISSION REFUSED PERMISSION AFTER A FULL HEARING, AND NO QUESTION OF
PROCEDURAL DUE PROCESS IS BEFORE US. 

SOUTHERN BROUGHT ITS TO RESTRAIN ENFORCEMENT OF THE COMMISSION ORDER
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
ALABAMA.  THE CASE WAS HEARD BY A THREE-JUDGE COURT, AS REQUIRED BY 28
U.S.C. SEC. 2281, AND A PERMANENT INJUNCTION WAS GRANTED.  A DIRECT
APPEAL TO THIS COURT LIES FROM SUCH A DECISION.  28 U.S.C. SEC. 1253. 

IN HOLDING THAT THE ORDER OF THE STATE COMMISSION VIOLATED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THE DISTRICT COURT RELIED
CHIEFLY UPON THE FACT THAT THE OPERATION OF THE TWO TRAINS INVOLVED A
SUBSTANTIAL LOSS.  IT HAS LONG BEEN SETTLED, HOWEVER, THAT A
REQUIREMENT THAT A PARTICULAR SERVICE BE RENDERED AT A LOSS DOES NOT
MAKE SUCH A SERVICE CONFISCATORY AND THEREBY AN UNCONSTITUTIONAL TAKING
OF PROPERTY.  ST. LOUIS & S.F.R. CO. V. GILL, 156 U.S. 649, 665-666;
ATLANTIC COAST LINE R. CO. V. NORTH CAROLINA COMM'N, 206 U.S. 1;
MISSOURI PACIFIC R. CO. V. KANSAS, 216 U.S. 262, 278; CHESAPEAKE & O.R.
CO. V. PUBLIC SERV. COMM'N, 242 U.S. 603; PUGET SOUND TRACTION CO. V.
REYNOLDS, 244 U.S. 574; FORT SMITH LIGHT & TRACTION CO. V. BOURLAND,
267 U.S. 330; SEE NORTHERN PACIFIC R. CO. V. NORTH DAKOTA, 236 U.S.
585, 600. 

UNLIKE A DEPARTMENT STORE OR A GROCERY, A RAILROAD CANNOT OF ITS OWN
FREE WILL DISCONTINUE A PARTICULAR SERVICE TO THE PUBLIC BECAUSE AN
ITEM OF ITS BUSINESS HAS BECOME UNPROFITABLE.  "ONE OF THE DUTIES OF A
RAILROAD COMPANY DOING BUSINESS AS A COMMON CARRIER IS THAT OF
PROVIDING REASONABLY ADEQUATE FACILITIES FOR SERVING THE PUBLIC.  THIS
DUTY ARISES OUT OF THE ACCEPTANCE AND ENJOYMENT OF THE POWERS AND
PRIVILEGES GRANTED BY THE STATE AND ENDURES SO LONG AS THEY ARE
RETAINED.  IT REPRESENTS A PART OF WHAT THE COMPANY UNDERTAKES TO DO IN
RETURN FOR THEM, AND ITS PERFORMANCE CANNOT BE AVOIDED MERELY BECAUSE
IT WILL BE ATTENDED BY SOME PECUNIARY LOSS."  CHESAPEAKE & O.R. CO. V.
PUBLIC SERV. COMM'N, SUPRA, AT 607. 

IT IS TRUE THAT WE HAVE, ON RARE OCCASION, FOUND AN ORDER REQUIRING
SERVICE SO ARBITRARY AS TO CONSTITUTE CONFISCATION.  THUS, IN NORTHERN
PACIFIC R. CO. V. NORTH DAKOTA, SUPRA, THE STATE WAS ATTEMPTING TO
FORCE RAILROADS TO SUBSIDIZE PRODUCTION OF A PARTICULAR COMMODITY.  IN
MISSISSIPPI COMM'N V. MOBILE & O.R. CO., 244 U.S. 388, THE COURT
CONCLUDED:  "LOOKING TO THE EXTENT AND PRODUCTIVENESS OF THE BUSINESS
OF THE COMPANY AS A WHOLE, THE SMALL TRAVELING POPULATION TO BE SERVED,
THE CHARACTER AND LARGE EXPENSE OF THE SERVICE REQUIRED BY THIS ORDER,
AND TO THE SERIOUS FINANCIAL CONDITIONS CONFRONTING THE CARRIER, WITH
THE PUBLIC LOSS AND INCONVENIENCE WHICH ITS FINANCIAL FAILURE WOULD
ENTAIL, WE FULLY AGREE WITH THE DISTRICT COURT IN CONCLUDING THAT THE
ORDER OF THE COMMISSION AT THE TIME AND UNDER THE CIRCUMSTANCES WHEN IT
WAS ISSUED WAS ARBITRARY AND UNREASONABLE  ...  "  ID. AT 396. 

IN THE CASE BEFORE US, THE TRAINS INVOLVED, NOS. 7 AND 8, ARE LOCAL
PASSENGER TRAINS OPERATED BETWEEN SHEFFIELD-TUSCUMBIA, ALABAMA, AND
CHATTANOOGA.  SOUTHERN OPERATES FOUR OTHER TRAINS BETWEEN THESE
POINTS.  NOS. 45 AND 46 DO NOT STOP AT ALL STATIONS AND OPERATE ON A
SCHEDULE INCONVENIENT TO THE PUBLIC HERE CONCERNED.  THE STATE
COMMISSION FOUND THAT THE SCHEDULES OF NOS. 35 AND 36 "ARE NOT
COMPARABLE TO" THOSE OF TRAINS 7 AND 8 AND DO NOT AFFORD THE SAME
CONVENIENCE. 

IT APPEARS THAT THE OPERATION OF TRAINS 7 AND 8 RESULTED IN A LOSS OF
$8,527.24 PER MONTH DURING THE TWELVE-MONTH PERIOD ENDING FEBRUARY 28,
1949.  DURING THE FIVE-MONTH PERIOD ENDING JULY 31, 1949, THE LOSS
AMOUNTED TO $10,738.51 PER MONTH.  BUT THE RAILROAD MADE NO CLAIM THAT
IT IS OPERATING AT A LOSS, OR FAILING TO RECEIVE A FAIR RETURN, EITHER
ON ITS TOTAL INVESTMENT OR UPON ITS INVESTMENT WITHIN THE STATE OF
ALABAMA.  THE RECORD CONTAINS ONLY THE SKETCHIEST FINDINGS CONCERNING
THE OPERATION OF THE RAILROAD IN ITS ENTIRETY.  BUT IT DOES APPEAR
THAT, ALTHOUGH SOUTHERN HAS OPERATED ITS PASSENGER BUSINESS AT A LOSS
ASIDE FROM THE WAR YEARS, IT HAS EARNED A SUBSTANTIAL NET OPERATING
INCOME UPON BOTH ITS ENTIRE BUSINESS AND ITS SERVICE WITHIN THE STATE
OF ALABAMA.  FN1  THIS LITIGATION SEEMS TO HAVE BEEN CONCERNED ALMOST
EXCLUSIVELY WITH THE OPERATIONS OF TRAINS 7 AND 8.  NO SHOWING WHATEVER
WAS MADE THAT BY THE LOSS INCURRED IN RUNNING THESE TRAINS SOUTHERN WAS
DEPRIVED OF THAT PROTECTION FOR ITS INVESTMENT IN ALABAMA WHICH ALONE
CAN BE MADE THE BASIS OF A CLAIM UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  THE LACK OF MERIT IN THE PLAINTIFF'S CASE IS SO
CLEAR THAT IT CALLS FOR DISMISSAL OF THE COMPLAINT. 

INSTEAD, AS WE HAVE STATED, THIS COURT RESTS ITS DECISION ON A GROUND
THAT REQUIRES IT TO OVERTURN A LONG COURSE OF DECISIONS AND, IN EFFECT,
TO REPEAL AN ACT OF CONGRESS DEFINING THE JURISDICTION OF THE DISTRICT
COURTS.  IT IS UNDISPUTED THAT THE PLAINTIFF IS ASSERTING A CLAIM UNDER
THE FEDERAL CONSTITUTION.  THE COURT ADMITS THAT THE DISTRICT COURT HAS
JURISDICTION OF THE SUIT.  28 U.S.C. SECS. 1331, 1332.  IT IS SAID,
HOWEVER, THAT THE DISTRICT COURT MUST DECLINE TO EXERCISE THIS
JURISDICTION BECAUSE JUDICIAL REVIEW OF THE ORDER COULD HAVE BEEN HAD
IN THE STATE COURTS. 

IN 1875, CONGRESS FOR THE FIRST TIME (BARRING THE ABORTIVE ACT OF
1801) OPENED THE FEDERAL COURTS TO CLAIMS BASED ON A RIGHT UNDER THE
CONSTITUTION OR LAWS OF THE UNITED STATES.  ACT OF MARCH 3, 1875, 18
STAT. 470.  FN2  THERETOFORE SUCH CLAIMS HAD TO BE PURSUED IN THE STATE
COURTS AND BROUGHT TO THIS COURT FOR REVIEW OF THE FEDERAL QUESTION
UNDER SEC. 25 OF THE JUDICIARY ACT OF 1789, 1 STAT. 73, 85.  IN REAGAN
V. FARMERS' LOAN & TRUST CO., 154 U.S. 362, 391, WE REJECTED THE
ARGUMENT THAT SUIT COULD NOT BE BROUGHT IN THE FEDERAL COURT TO
RESTRAIN THE ENFORCEMENT OF A STATE AGENCY ORDER.  THE COURT HAS
CONSISTENTLY HELD TO THE VIEW THAT IT CANNOT OVERRULE THE DETERMINATION
OF CONGRESS AS TO WHETHER FEDERAL COURTS SHOULD BE ALLOWED
JURISDICTION, CONCURRENT WITH THE STATE COURTS, EVEN WHERE THE
PLAINTIFF SEEKS TO RESTRAIN ACTION OF A STATE AGENCY.  SMYTH V. AMES,
169 U.S. 466, 516; WILLCOX V. CONSOLIDATED GAS CO., 212 U.S. 19, 40;
BACON V. RUTLAND R. CO., 232 U.S. 134, 137; DETROIT & MACKINAC R. CO.
V. MICHIGAN COMM'N, 235 U.S. 402; OKLAHOMA NATURAL GAS CO. V. RUSSELL,
261 U.S. 290, 293; PRENDERGAST V. NEW YORK TELEPHONE CO., 262 U.S. 43,
47; PACIFIC TELEPHONE & TELEGRAPH CO. V. KUYKENDALL, 265 U.S. 196, 201;
RAILROAD & WAREHOUSE COMM'N OF MINNESOTA V. DULUTH ST. R. CO., 273 U.S.
625, 628; SEE PRENTIS V. ATLANTIC COAST LINE R. CO., 211 U.S. 210,
228.    THESE CASES CAN BE OVERRULED.  THEY CANNOT BE EXPLAINED AWAY. 
THE THEORY OF THE CASES NOW DISCARDED WAS CLEARLY STATED IN WILLCOX V.
CONSOLIDATED GAS CO., SUPRA, DECIDED THE SAME TERM AS THE PRENTIS CASE:
"THAT THE CASE MAY BE ONE OF LOCAL INTEREST ONLY IS ENTIRELY
IMMATERIAL, SO LONG AS THE PARTIES ARE CITIZENS OF DIFFERENT STATES OR
A QUESTION IS INVOLVED WHICH BY LAW BRINGS THE CASE WITHIN THE
JURISDICTION OF A FEDERAL COURT.  THE RIGHT OF A PARTY PLAINTIFF TO
CHOOSE A FEDERAL COURT WHERE THERE IS A CHOICE CANNOT BE PROPERLY
DENIED."  212 U.S. AT 40.  WHAT THE COURT TODAY HOLDS IS THAT IF A
PLAINTIFF CAN BE SENT TO A STATE COURT TO CHALLENGE AN AGENCY ORDER
THERE IS NO FEDERAL COURT AVAILABLE TO HIM.  FN3  SINCE THE BODY OF
DECISIONS WHICH HOLD THE CONTRARY IS THUS TO BE DISCARDED, THEY OUGHT
NOT TO BE LEFT AS DERELICTS ON THE WATERS OF THE LAW. 

IN CONGRESS, A PROLONGED DEBATE HAS ENSUED OVER THE WISDOM OF THE
BROAD GRANTS OF POWER MADE TO THE FEDERAL COURTS OF ORIGINAL
JURISDICTION - POWER WHICH MAY BE INVOKED AGAINST STATE REGULATION OF
ECONOMIC ENTERPRISE.  BILL AFTER BILL HAS BEEN PROPOSED TO PREVENT THE
LOWER FEDERAL COURTS FROM INTERFERING WITH SUCH STATE ACTION.  FINALLY,
IN 1910, BY A PROVISION IN THE MANN-ELKINS ACT, CONGRESS PROVIDED THAT
AN ACTION FOR AN INTERLOCUTORY INJUNCTION TO RESTRAIN THE ACTION OF A
STATE OFFICER ACTING UNDER A STATUTE ALLEGED TO VIOLATE THE FEDERAL
CONSTITUTION BE HEARD BY A COURT OF THREE JUDGES, WITH A RIGHT OF
DIRECT APPEAL TO THE SUPREME COURT.  ACT OF JUNE 18, 1910, SEC. 17, 36
STAT. 539, 557.  IN 1913, THIS PROCEDURE WAS EXTENDED TO APPLICATIONS
FOR AN INTERLOCUTORY INJUNCTION TO RESTRAIN ENFORCEMENT OF THE ORDER OF
A STATE BOARD OR COMMISSION.  ACT OF MARCH 4, 1913, 37 STAT. 1013.  BY
THE SAME STATUTE, A STATE WAS EMPOWERED TO KEEP LITIGATION CONCERNING
THE VALIDITY OF STATE AGENCY REGULATION IN ITS OWN COURTS IF IT WAS
WILLING TO STAY THE ADMINISTRATIVE ORDER.  FN4  IN 1925, THE PROVISION
FOR A THREE-JUDGE COURT AND DIRECT APPEAL WAS EXTENDED TO A PERMANENT
INJUNCTION.  ACT OF FEB. 13, 1925, 43 STAT. 936, 938. 

CONGRESS, FULLY AWARE OF THE PROBLEM, WAS STILL NOT SATISFIED WITH
THE JURISDICTION IT HAD LEFT TO THE FEDERAL DISTRICT COURTS. 
ACCORDINGLY, IN 1934, IT PASSED THE JOHNSON ACT WHICH WITHDREW THEIR
JURISDICTION OVER SUITS TO ENJOIN THE ENFORCEMENT OF STATE RATE ORDERS,
PROVIDING THAT A REMEDY WAS AVAILABLE IN THE STATE COURTS.  ACT OF MAY
14, 1934, 48 STAT. 775.  THIS RESTRICTION ON A DISTRICT COURT IS NOT
HERE APPLICABLE, FOR THE ORDER IN CONTROVERSY IS NOT A RATE ORDER.  IN
1937, CONGRESS FURTHER LIMITED FEDERAL JURISDICTION BY PROVIDING THAT A
DISTRICT COURT COULD NOT ENJOIN ENFORCEMENT OF A STATE TAX STATUTE
WHERE A REMEDY WAS AVAILABLE IN THE STATE COURTS.  ACT OF AUG. 21,
1937, 50 STAT. 738. 

PLAINLY WE ARE CONCERNED WITH A JURISDICTIONAL ISSUE WHICH HAS BEEN
CONTINUOUSLY BEFORE CONGRESS AND WITH WHICH IT HAS DEALT BY EXPLICIT
AND DETAILED LEGISLATION.  CONGRESS FIRST MADE A BROAD GRANT OF
JURISDICTION TO THE FEDERAL COURTS AS TO ALL CONSTITUTIONAL AND OTHER
FEDERAL CLAIMS.  EXPERIENCE GAVE RISE TO DISSATISFACTION WITH THIS
GRANT AND CONGRESS BEGAN TO HEDGE AND LIMIT THE POWER.  IT REQUIRED
THAT THE CASE BE HEARD BY THREE JUDGES, THAT A SPEEDY APPEAL BE
AVAILABLE, AND THAT THE STATE COURTS COULD HAVE EXCLUSIVE JURISDICTION
IF THEY WOULD STAY THE ADMINISTRATIVE ORDER.  IT WITHDREW JURISDICTION
TO ENJOIN ENFORCEMENT OF STATE STATUTES AND ORDERS IN THE TWO FIELDS
WHERE THE GREATEST DISSATISFACTION WITH FEDERAL JURISDICTION EXISTED -
RATE ORDERS AND TAXATION - SO LONG AS A STATE REMEDY WAS AVAILABLE. 
BUT CONGRESS DID NOT TAKE AWAY THE POWER OF THE DISTRICT COURT TO
DECIDE A CASE LIKE THE ONE BEFORE US.  INSTEAD, IT RECOGNIZED BY THE
WORDING OF SEC. 17 OF THE MANN-ELKINS ACT AND LATER LEGISLATION THAT IT
HAD GIVEN A RIGHT TO RESORT TO THE FEDERAL COURTS AND THAT SUCH POWER
WAS AN OBLIGATORY JURISDICTION, NOT TO BE DENIED BECAUSE AS A MATTER OF
POLICY IT MIGHT BE MORE DESIRABLE TO RAISE SUCH CONSTITUTIONAL CLAIMS
IN A STATE COURT. 

THE COURT REJECTS THE GUIDANCE OF THESE AMENDATORY ACTS, ALL PLACING
SPECIFIC LIMITATIONS UPON THE EXERCISE OF DISTRICT COURT JURISDICTION
IN CASES AFFECTING LOCAL REGULATION.  INSTEAD, THE COURT NOW LIMITS THE
JURISDICTION OF THE FEDERAL COURTS AS THOUGH CONGRESS HAD AMENDED SEC.
1331 OF TITLE 28 TO READ: 

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL CIVIL
ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM OR VALUE OF
$3,000, EXCLUSIVE OF INTEREST AND COSTS, AND ARISES UNDER THE
CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES, PROVIDED THAT THE
DISTRICT COURTS SHALL NOT EXERCISE THIS JURISDICTION WHERE A SUIT
INVOLVES A CHALLENGE TO AN ORDER OF A STATE REGULATORY COMMISSION." 

IT DOES NOT CHANGE THE SIGNIFICANCE OF THE COURT'S DECISION TO COAT
IT WITH THE SUGAR OF EQUITY MAXIMS.  AS WE HAVE SEEN, THERE IS NO
WARRANT IN THE DECISIONS OF THIS COURT FOR SAYING THAT THE PLAINTIFF
HAS AN "ADEQUATE REMEDY AT LAW" MERELY BECAUSE HE MAY BRING SUIT IN THE
STATE COURTS.  AN "ADEQUATE REMEDY AT LAW," AS A BAR TO EQUITABLE
RELIEF IN THE FEDERAL COURTS, REFERS TO A REMEDY ON THE LAW SIDE OF
FEDERAL COURTS.  PETROLEUM EXPLORATION, INC. V. COMMISSION, 304 U.S.
209, 217; DI GIOVANNI V. CAMDEN INS. ASSN., 296 U.S. 64, 69; HENRIETTA
MILLS V. RUTHERFORD COUNTY, 281 U.S. 121, 126; RISTY V. CHICAGO, R.I. &
PAC. R. CO., 270 U.S. 378, 388.  AN EQUITY COURT MAY DECLINE TO GIVE
RELIEF BY INJUNCTION IF THE PLAINTIFF WOULD BE ADEQUATELY COMPENSATED
BY MONEY DAMAGES, HIS "REMEDY AT LAW."  ARMOUR & CO. V. DALLAS, 255
U.S. 280, HARRISONVILLE V. DICKEY CLAY CO., 289 U.S. 334.  BUT IT IS
NOT SUGGESTED THAT THIS SUIT SHOULD HAVE BEEN TRANSFERRED TO THE LAW
SIDE OF THE FEDERAL COURT. 

AN EQUITY COURT MAY ALSO DECLINE TO ISSUE AN INJUNCTION IF THE
INTEREST OF THE PLAINTIFF IS RELATIVELY UNIMPORTANT WHEN COMPARED TO
SOME OVERWHELMING PUBLIC INTEREST.  SEE MR. JUSTICE BRANDEIS,
DISSENTING, IN TRUAX V. CORRIGAN, 257 U.S. 312, 354, 374.  SEE ALSO
VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 552.  AN EQUITY
COURT, IN THE EXERCISE OF ITS BROAD POWERS, MAY ALSO DECLINE TO GIVE
RELIEF IF THERE ARE SPECIAL CIRCUMSTANCES WHICH MAKE IT DESIRABLE FOR
THE COURT TO STAY ITS HAND OR DECLINE TO INTERFERE.  THUS,
TRADITIONALLY, AN EQUITY COURT WILL BE RELUCTANT TO INTERFERE WITH THE
ADMINISTRATION OF CRIMINAL JUSTICE.  BEAL V. MISSOURI PACIFIC R. CORP.,
312 U.S. 45.  IT SHOULD AVOID DECISION OF A CONSTITUTIONAL QUESTION
WHEN CONSTRUCTION OF A STATE STATUTE IN THE STATE COURTS MAY MAKE SUCH
A DECISION UNNECESSARY.  RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496. 
IT MAY DECLINE TO CONSIDER A CASE WHICH INVOLVES A SPECIALIZED ASPECT
OF A COMPLICATED SYSTEM OF LOCAL LAW OUTSIDE THE NORMAL COMPETENCE OF A
FEDERAL COURT.  BURFORD V. SUN OIL CO., 319 U.S. 315, 332 ET SEQ. IN
THAT CASE, THE MAJORITY FOUND THAT THE TECHNICALITIES OF OIL REGULATION
AND THE IMPORTANCE OF COMPETENT, UNIFORM REVIEW MADE IT PROPER FOR THE
DISTRICT COURT TO DECLINE TO EXERCISE ITS EQUITY JURISDICTION.  AGAIN,
AN EQUITY COURT, LIKE A COURT OF LAW FOR THAT MATTER, OUGHT NOT TO HEAR
A CASE BEFORE THE PLAINTIFF HAS EXHAUSTED ALL AVAILABLE NONJUDICIAL
LEGAL REMEDIES.  PRENTIS V. ATLANTIC COAST LINE R. CO., SUPRA. 

HERE THE PLAINTIFF HAS EXHAUSTED ITS NONJUDICIAL REMEDIES.  AVERY
FREIGHT LINES, INC. V. PERSONS, 250 ALA. 40, 32 S.2D 886(1947). 
CONCEDEDLY THERE IS NO STATE STATUTE TO CONSTRUE.  THERE IS NO
CONSIDERATION WHICH SHOULD MAKE A COURT OF EQUITY, AS A MATTER OF
DISCRETION, DECLINE TO ENTERTAIN A BILL FOR AN INJUNCTION.  NOR DOES
THE SITUATION IN THIS SUIT INVOLVE A SPECIALIZED FIELD OF STATE LAW IN
WHICH OUT-OF-STATE FEDERAL JUDGES ARE NOT AT HOME.  ON THE CONTRARY,
THE CLAIM THAT IS MADE HERE IS WITHIN THE EASY GRASP OF FEDERAL JUDGES,
AND CERTAINLY WITHIN THE COMPETENCE OF THREE JUDGES BRED IN ALABAMA
LAW, WITH WIDE EXPERIENCE IN ITS ADMINISTRATION.  THE ONLY REASON FOR
DECLINING TO ENTERTAIN THE SUIT IS THAT IT MAY WELL BE MORE DESIRABLE
AS A MATTER OF STATE-FEDERAL RELATIONS FOR THE ORDER OF A STATE AGENCY
TO BE REVIEWED ORIGINALLY IN THE STATE LOWER COURT AND NOT TO BE
CHALLENGED IN THE FIRST INSTANCE IN A FEDERAL COURT.  IT IS NOT FOR ME
TO QUARREL WITH THE WISDOM OF SUCH A POLICY.  BUT CONGRESS, IN THE
CONSTITUTIONAL EXERCISE OF ITS POWER TO DEFINE THE JURISDICTION OF THE
INFERIOR FEDERAL COURTS, HAS DECIDED OTHERWISE. 

EQUITY BY ITS VERY NATURE DENIES RELIEF IF, ON BALANCE OF
CONSIDERATIONS OF CONVENIENCE RELEVANT TO EQUITY, IT WOULD BE
INEQUITABLE TO GRANT THE EXTRAORDINARY REMEDY OF AN INJUNCTION. 
FEDERAL COURTS OF EQUITY HAVE ALWAYS ACTED ON THIS EQUITABLE DOCTRINE. 
BUT IT WAS NEVER A DOCTRINE OF EQUITY THAT A FEDERAL COURT SHOULD
EXERCISE ITS JUDICIAL DISCRETION TO DISMISS A SUIT MERELY BECAUSE A
STATE COURT COULD ENTERTAIN IT. 

THIS IS SO BECAUSE DISCRETION BASED SOLELY ON THE AVAILABILITY OF A
REMEDY IN THE STATE COURTS WOULD FOR ALL PRACTICAL PURPOSES REPEAL THE
ACT OF 1875.  THIS ACT GAVE TO THE FEDERAL COURTS A JURISDICTION NOT
THERETOFORE POSSESSED SO THAT A STATE COULD NOT TIE UP A LITIGANT
MAKING SUCH A CLAIM BY REQUIRING THAT HE BRING SUIT FOR REDRESS IN ITS
OWN COURTS.  THAT JURISDICTION WAS PRECISELY THE JURISDICTION TO HEAR
CONSTITUTIONAL CHALLENGE TO LOCAL ACTION ON THE BASIS OF THE VAST
LIMITATIONS PLACED UPON STATE ACTION BY THE CIVIL WAR AMENDMENTS.  AND
PRECISELY BECAUSE OF OBJECTIONS TO THE CHOICE OF COURTS GIVEN
PLAINTIFFS BY THE ACT OF 1875, CONGRESS, BY PIECEMEAL RESTRICTIVE
LEGISLATION, DID REQUIRE THAT SOME FEDERAL CLAIMS AGAINST LOCAL
REGULATORY ACTION BE LITIGATED ORIGINALLY IN STATE COURTS AND FROM
THERE BROUGHT HERE FOR REVIEW. 

BY ONE FELL SWOOP THE COURT NOW FINDS THAT CONGRESS INDULGED IN
NEEDLESS LEGISLATION IN THE ACTS OF 1910, 1913, 1925, 1934 AND 1937. 
BY THESE MEASURES, CONGRESS, SO THE COURT NOW DECIDES, GAVE NOT ONLY
NEEDLESS BUT INADEQUATE RELIEF, SINCE IT NOW APPEARS THAT THE FEDERAL
COURTS HAVE INHERENT POWER TO STERILIZE THE ACT OF 1875 AGAINST ALL
PROCEEDINGS CHALLENGING LOCAL REGULATION.  FOR IF THIS DECISION MEANS
ANYTHING BEYOND DISPOSING OF THIS PARTICULAR LITIGATION IT MEANS THAT
HEREAFTER NO FEDERAL COURT SHOULD ENTERTAIN A SUIT AGAINST ANY ACTION
OF A STATE AGENCY.  FOR EVERY STATE MUST AFFORD JUDICIAL REVIEW IN ITS
COURTS OF A CLAIM UNDER THE DUE PROCESS CLAUSE IF SUCH CLAIM WOULD GIVE
A FEDERAL COURT JURISDICTION.  IN THE ABSENCE OF SUCH JUDICIAL REVIEW
IN THE STATE COURTS, STATE ACTION UNDER THE DOCTRINE OF OHIO VALLEY CO.
V. BEN AVON BOROUGH, 253 U.S. 287, WOULD BE NUGATORY BECAUSE
UNCONSTITUTIONAL. 

I REGRET MY INABILITY TO MAKE CLEAR TO THE MAJORITY OF THIS COURT
THAT ITS OPINION IS IN FLAGRANT CONTRADICTION WITH THE UNBROKEN COURSE
OF DECISIONS IN THIS COURT FOR SEVENTY-FIVE YEARS. 

FN1  THE RECORD CONTAINS NO ALLEGATIONS OR FINDINGS ON THE VALUE OF
THE RAILROAD'S PROPERTY AND NO PARTICULARS CONCERNING ITS ACCOUNTING
SYSTEM.  FINDING 23 INDICATES THAT THE RAILROAD HAS HAD THE FOLLOWING
YEARLY "NET OPERATING INCOME" FROM ITS ENTIRE BUSINESS: 

1931-1941(AVERAGE) ........  $16,232,045 

1942-1945(AVERAGE) ........   35,561,045 

1946-1948(AVERAGE) ........   23,278,299 

FINDING 24 INDICATES THAT THE RAILROAD HAS HAD THE FOLLOWING YEARLY
"NET OPERATING INCOME" FROM ITS SERVICE WITHIN ALABAMA: 

1936-1941(AVERAGE) .........  $1,508,282 

1942-1945(AVERAGE) ......... 4,220,203 

1946-1948(AVERAGE) .........   2,598,459 

FN2  JURISDICTION OVER CASES WHERE THERE IS DIVERSITY OF CITIZENSHIP
WAS CONFERRED BY SEC. 11 OF THE JUDICIARY ACT OF 1789.  1 STAT. 73,
78.  IN MEREDITH V. WINTER HAVEN, 320 U.S. 228, WE HELD THAT IN AN
EQUITY CASE THE DISTRICT COURT COULD NOT DECLINE TO EXERCISE ITS
JURISDICTION MERELY BECAUSE MATTERS OF STATE LAW WERE INVOLVED. 

FN3  WE ARE TOLD BY THE COURT:  "COMPARE SUCH CASES AS BACON V.
RUTLAND R. CO., 232 U.S. 134(1914), WHERE STATE JUDICIAL REVIEW
PROCEDURES PLUS REVIEW IN THIS COURT WERE THOUGHT TO BE INADEQUATE." 
THERE IS NOT THE SHADOW OF A HINT IN THE BACON CASE TO WARRANT SUCH AN
EXPLANATION OF IT.  NO SUCH THING WAS "THOUGHT" BEFORE TODAY'S
DECISION.  THE BACON CASE IS MERELY AN INSTANCE OF WHAT UNTIL TODAY WAS
THE SETTLED DOCTRINE THAT A RAILROAD COMPANY HAD THE CHOICE OF GOING
EITHER INTO THE STATE COURT OR INTO THE FEDERAL COURT TO PRESS A
FEDERAL CONSTITUTIONAL CLAIM. 

IT IS SUGGESTED THAT THE "INADEQUACY" OF STATE JUDICIAL REVIEW, BY
WHICH THE BACON CASE IS NOW SOUGHT TO BE EXPLAINED, "DERIVED FROM THE
RATIONALE THAT THE FEDERAL RIGHT OF A UTILITY TO BE PROTECTED FROM
CONFISCATION OF ITS PROPERTY DEPENDED UPON 'PURE MATTERS OF FACT' TO
THE EXTENT THAT A DE NOVO HEARING OF SUCH FACTS IN A FEDERAL COURT WAS
ESSENTIAL TO THE PROTECTION OF CONSTITUTIONAL RIGHTS.  PRENTIS V.
ATLANTIC COAST LINE R. CO., 211 U.S. 210, 228(1908)." 

I REGRET THE NECESSITY FOR SAYING AGAIN THAT THERE IS NO WARRANT
WHATEVER FOR THIS STATEMENT.  IT CANNOT BE FOUND AT THE PLACE CITED IN
THE PRENTIS OPINION.  THAT MERELY REPEATS THE DOCTRINE OF THE NUMEROUS
CASES AFTER THE ACT OF 1875 THAT A PLAINTIFF HAS A CHOICE OF STATE OR
FEDERAL COURT WHERE A CONSTITUTIONAL CLAIM IS MADE:  "ALL THEIR
CONSTITUTIONAL RIGHTS, WE REPEAT, DEPEND UPON WHAT THE FACTS ARE FOUND
TO BE.  THEY ARE NOT TO BE FORBIDDEN TO TRY THOSE FACTS BEFORE A COURT
OF THEIR OWN CHOOSING IF OTHERWISE COMPETENT.  'A STATE CANNOT TIE UP A
CITIZEN OF ANOTHER STATE, HAVING PROPERTY WITHIN ITS TERRITORY INVADED
BY UNAUTHORIZED ACTS OF ITS OWN OFFICERS, TO SUITS FOR REDRESS IN ITS
OWN COURTS.'  REAGAN V. FARMERS' LOAN & TRUST CO., 154 U.S. 362, 391;
SMYTH V. AMES, 169 U.S. 466, 517.  SEE MCNEILL V. SOUTHERN RAILWAY CO.,
202 U.S. 543; EX PARTE YOUNG, 209 U.S. 123, 165."  211 U.S. AT 228. 
FN4  "IT IS FURTHER PROVIDED THAT IF BEFORE THE FINAL HEARING OF SUCH
APPLICATION A SUIT SHALL HAVE BEEN BROUGHT IN A COURT OF THE STATE
HAVING JURISDICTION THEREOF UNDER THE LAWS OF SUCH STATE, TO ENFORCE
SUCH STATUTE OR ORDER, ACCOMPANIED BY A STAY IN SUCH STATE COURT OF
PROCEEDINGS UNDER SUCH STATUTE OR ORDER PENDING THE DETERMINATION OF
SUCH SUIT BY SUCH STATE COURT, ALL PROCEEDINGS IN ANY COURT OF THE
UNITED STATES TO RESTRAIN THE EXECUTION OF SUCH STATUTE OR ORDER SHALL
BE STAYED PENDING THE FINAL DETERMINATION OF SUCH SUIT IN THE COURTS OF
THE STATE."  37 STAT. 1014.  SEE 28 U.S.C. SEC. 2284(5). 

ALABAMA DID NOT AVAIL ITSELF OF THIS MEANS FOR TAKING THE LITIGATION
FROM THE FEDERAL COURT. 
..END :








ALABAMA COMM'N V. SOUTHERN R. CO., 341 U.S. 363 


NO. 146.  ARGUED FEBRUARY 27-28, 1951.  - DECIDED MAY 21, 1951.  - 88
F.SUPP.  441, REVERSED. 


DECIDED UPON THE AUTHORITY OF ALABAMA PUBLIC SERVICE COMM'N V.
SOUTHERN R. CO., ANTE, P. 341. 

ALABAMA PUBLIC SERVICE COMMISSION ET AL. V. SOUTHERN RAILWAY CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF ALABAMA. 

IN A SUIT BY A RAILROAD, A THREE-JUDGE FEDERAL DISTRICT COURT
ENJOINED ENFORCEMENT OF AN ORDER OF THE ALABAMA PUBLIC SERVICE
COMMISSION.  88 F.SUPP.  441.  ON APPEAL TO THIS COURT UNDER 28 U.S.C.
SEC. 1253, REVERSED, P. 366. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS ARGUED WITH NO. 395, DECIDED THIS DAY, ANTE, P. 341,
AND BRINGS THE SAME PARTIES BEFORE THE COURT. 

THIS PROCEEDING ARISES OUT OF APPELLEE'S EFFORTS TO DISCONTINUE
OPERATION OF PASSENGER TRAINS NOS. 11 AND 16 OPERATED DAILY BETWEEN
BIRMINGHAM, ALABAMA, AND COLUMBUS, MISSISSIPPI, A DISTANCE OF
APPROXIMATELY 120 MILES MAINLY WITHIN ALABAMA.  ALLEGING THAT THE
TRAINS ARE LITTLE USED AND PRODUCE REVENUES FAR BELOW THEIR DIRECT
OPERATING EXPENSES, APPELLEE APPLIED TO THE ALABAMA PUBLIC SERVICE
COMMISSION ON SEPTEMBER 13, 1948, FOR THE PERMISSION TO DISCONTINUE
REQUIRED BY ALABAMA LAW. 

OVER A YEAR LATER, AND BEFORE ANY ACTION ON THE APPLICATION HAD BEEN
TAKEN BY THE ALABAMA COMMISSION, THE INTERSTATE COMMERCE COMMISSION
ORDERED A REDUCTION IN THE INTERSTATE AND INTRASTATE OPERATION OF COAL
BURNING PASSENGER LOCOMOTIVES TO PREVENT UNDUE DEPLETION OF COAL
RESERVES DURING A NATIONAL COAL STRIKE.  IN RESPONSE TO THE I.C.C.
ORDER, APPELLEE DISCONTINUED SERVICE ON A NUMBER OF ITS TRAINS,
INCLUDING TRAINS NOS. 11 AND 16.  WHEN THE I.C.C. ORDER WAS RESCINDED,
OTHER TRAINS WERE RESTORED TO OPERATION BUT APPELLEE REFUSED TO RESTORE
THE FINANCIALLY COSTLY OPERATION OF TRAINS NOS. 11 AND 16, AT LEAST
UNTIL THE ALABAMA COMMISSION GRANTED A HEARING UPON ITS APPLICATION FOR
PERMANENT DISCONTINUANCE.  AN IMPASSE DEVELOPED AND THE ALABAMA
COMMISSION ENTERED AN ORDER IN WHICH IT REFUSED TO HEAR EVIDENCE
PROFFERED BY APPELLEE, THREATENED TO DELAY ANY HEARING ON THE
APPLICATION UNTIL APPELLEE RESTORED THE TRAINS, FOUND APPELLEE IN
CONTEMPT OF THE COMMISSION AND CALLED APPELLEE'S ATTENTION TO A
PROVISION OF THE ALABAMA CODE PROVIDING PENALTIES FOR THE VIOLATION OF
AN ORDER OF THE COMMISSION.  ON DECEMBER 6, 1949, THE DAY AFTER ENTRY
OF THIS ORDER, APPELLEE FILED ITS COMPLAINT IN THE DISTRICT COURT
ALLEGING THAT REQUIRING CONTINUED OPERATION OF TRAINS 11 AND 16 WOULD
CONFISCATE ITS PROPERTY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  IT PRAYED FOR AN INJUNCTION RESTRAINING
APPELLANTS FROM ENFORCING THOSE LAWS OF ALABAMA, INCLUDING PENALTY
PROVISIONS, WHICH PREVENTED APPELLEE FROM DISCONTINUING THOSE TRAINS. 
A TEMPORARY RESTRAINING ORDER WAS ISSUED. 

IN THE COURT BELOW AND IN THIS COURT, APPELLANTS HAVE ARGUED THAT A
FEDERAL COURT SHOULD NOT INTERFERE WITH A STATE'S IMPOSITION OF
PENALTIES TO PUNISH DEFIANT DISREGARD OF ITS REGULATORY LAWS.  BEAL V.
MISSOURI PACIFIC R. CORP., 312 U.S. 45, 51(1941); WADLEY SOUTHERN R.
CO. V. GEORGIA, 235 U.S. 651, 662(1915).  COMPARE WESTERN & ATLANTIC R.
CO. V. GEORGIA PUBLIC SERVICE COMMISSION, 267 U.S. 493, 496(1925). 
APPELLEE, ON THE OTHER HAND, EMPHASIZES THE COMMISSION'S DELAY IN
PASSING UPON ITS APPLICATION TO DISCONTINUE THE FINANCIALLY BURDENSOME
SERVICE AS BEING SO LONG-CONTINUED AND UNREASONABLE AS TO PERMIT THE
INTERVENTION OF A FEDERAL COURT BEFORE A DECISION BY THE COMMISSION. 
SMITH V. ILLINOIS BELL TELEPHONE CO., 270 U.S. 587(1926). 

THOUGH THESE ARGUMENTS WERE RELEVANT WHEN THE TEMPORARY RESTRAINING
ORDER WAS ISSUED, WE ARE CALLED UPON TO REVIEW ONLY THE FINAL DECREE,
CF. SHAFFER V. CARTER, 252 U.S. 37, 44(1920), AND DO NOT FIND IT
NECESSARY TO PASS UPON SUCH CONTENTIONS IN VIEW OF THE ADDITIONAL
DEVELOPMENTS OCCURRING PRIOR TO THE ENTRY OF THE FINAL JUDGMENT BELOW. 
THE COMMISSION DID HOLD A HEARING ON DECEMBER 8, 1949, IN FAYETTE,
ALABAMA, ONE OF THE COMMUNITIES AFFECTED BY THE DISCONTINUANCE OF
SERVICE, AND, ON JANUARY 9, 1950, ENTERED AN ORDER DENYING PERMISSION
TO DISCONTINUE OPERATION OF TRAINS NOS. 11 AND 16 ON THE GROUNDS THAT A
PUBLIC NEED EXISTS FOR THE SERVICE AND THAT APPELLEE HAD NOT MADE A
SUFFICIENT EFFORT TO REDUCE LOSSES THROUGH ADOPTION OF MORE ECONOMICAL
OPERATING METHODS.  THE PLEADINGS IN THE COURT BELOW WERE AMENDED IN
LIGHT OF THE COMMISSION'S ORDER OF JANUARY 9, 1950, AND THE FINAL
JUDGMENT ENTERED BY THE THREE-JUDGE DISTRICT COURT WAS BASED UPON A
FINDING THAT ENFORCEMENT OF THAT ORDER WOULD BE CONTRARY TO THE
FOURTEENTH AMENDMENT.  88 F.SUPP.  441(1950). 

APPELLEE CHALLENGES THE VALIDITY OF AN ORDER OF THE ALABAMA PUBLIC
SERVICE COMMISSION, BUT DID NOT INVOKE THE ADEQUATE STATE REMEDY
PROVIDED FOR REVIEW OF SUCH ORDERS.  THEREFORE, AS THIS CASE COMES TO
US, IT IS GOVERNED BY OUR DECISION IN NO. 395, DECIDED THIS DAY, ANTE,
P. 341.  ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT IS REVERSED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON CONCUR IN THE RESULT
FOR THE REASONS SET FORTH IN THEIR OPINION IN NO. 395, ALABAMA PUBLIC
SERVICE COMM'N V. SOUTHERN R. CO., ANTE, P. 351. 
..END :






















TENNEY V. BRANDHOVE, 341 U.S. 367 


NO. 338.  ARGUED MARCH 1, 1951.  - DECIDED MAY 21, 1951.  - 183 F.2D
121, REVERSED. 


RESPONDENT SUED PETITIONERS IN THE FEDERAL DISTRICT COURT FOR DAMAGES
UNDER 8 U.S.C. SECS. 43 AND 47(3), ALLEGING THAT, IN CONNECTION WITH AN
INVESTIGATION BY A COMMITTEE OF THE CALIFORNIA LEGISLATURE, HE HAD BEEN
DEPRIVED OF RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION.  PETITIONERS
ARE THE COMMITTEE AND THE MEMBERS THEREOF, ALL OF WHOM ARE MEMBERS OF
THE LEGISLATURE.  HELD: FROM THE ALLEGATIONS OF THE COMPLAINT, IT
APPEARS THAT PETITIONERS WERE ACTING IN A FIELD WHERE LEGISLATORS
TRADITIONALLY HAVE POWER TO ACT; AND 8 U.S.C. SECS. 43 AND 47(3) DO NOT
CREATE CIVIL LIABILITY FOR SUCH CONDUCT.  PP. 369-379. 

(A)  THE PRIVILEGE OF LEGISLATORS TO BE FREE FROM ARREST OR CIVIL
PROCESS FOR WHAT THEY DO OR SAY IN LEGISLATIVE PROCEEDINGS HAS BEEN
CAREFULLY PRESERVED IN THE FORMATION OF OUR STATE AND NATIONAL
GOVERNMENTS.  PP. 372-375. 

(B)  BY 8 U.S.C. SECS. 43 AND 47(3), CONGRESS DID NOT INTEND TO LIMIT
THIS PRIVILEGE BY SUBJECTING LEGISLATORS TO CIVIL LIABILITY FOR ACTS
DONE WITHIN THE SPHERE OF LEGISLATIVE ACTIVITY.  P. 376. 

(C)  THE PRIVILEGE IS NOT DESTROYED BY A CLAIM THAT THE MOTIVES OF
THE LEGISLATORS WERE IMPROPER.  P. 377. 

(D)  IN ORDER TO FIND THAT A LEGISLATIVE COMMITTEE'S INVESTIGATION
HAS EXCEEDED THE BOUNDS OF LEGISLATIVE POWER, IT MUST BE OBVIOUS THAT
THERE WAS A USURPATION OF FUNCTIONS EXCLUSIVELY VESTED IN THE JUDICIARY
OR THE EXECUTIVE.  P. 378. 

(E)  LEGISLATIVE PRIVILEGE DESERVES GREATER RESPECT IN A CASE IN
WHICH THE DEFENDANTS ARE MEMBERS OF THE LEGISLATURE THAN WHERE AN
OFFICIAL ACTING ON BEHALF OF THE LEGISLATURE IS SUED OR WHERE THE
LEGISLATURE SEEKS THE AFFIRMATIVE AID OF THE COURTS TO ASSERT A
PRIVILEGE.  P. 379. 

TENNEY ET AL. V. BRANDHOVE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

IN AN ACTION BROUGHT BY RESPONDENT AGAINST PETITIONERS UNDER 8 U.S.C.
SECS. 43 AND 47(3), THE DISTRICT COURT DISMISSED THE COMPLAINT.  THE
COURT OF APPEALS REVERSED.  183 F.2D 121.  THIS COURT GRANTED
CERTIORARI.  340 U.S. 903.  REVERSED, P. 379. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WILLIAM BRANDHOVE BROUGHT THIS ACTION IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, ALLEGING THAT HE HAD
BEEN DEPRIVED OF RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION.  THE
DEFENDANTS ARE JACK B. TENNEY AND OTHER MEMBERS OF A COMMITTEE OF THE
CALIFORNIA LEGISLATURE, THE SENATE FACT-FINDING COMMITTEE ON UN
AMERICAN ACTIVITIES, COLLOQUIALLY KNOWN AS THE TENNEY COMMITTEE.  ALSO
NAMED AS DEFENDANTS ARE THE COMMITTEE AND ELMER E. ROBINSON, MAYOR OF
SAN FRANCISCO. 

THE ACTION IS BASED ON SECS. 43 AND 47(3) OF TITLE 8 OF THE UNITED
STATES CODE.  THESE SECTIONS DERIVE FROM ONE OF THE STATUTES, PASSED IN
1871, AIMED AT ENFORCING THE FOURTEENTH AMENDMENT.  ACT OF APRIL 20,
1871, C. 22, SECS. 1, 2, 17 STAT. 13.  SECTION 43 PROVIDES: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER PERSON WITHIN THE
JURISDICTION THEREOF TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS."  R.S. SEC. 1979, 8 U.S.C. SEC. 43. 

WHO MAY CONSPIRE TO DEPRIVE ANOTHER OF CONSTITUTIONAL RIGHTS, AS
THEREIN DEFINED.  FN1 

REDUCED TO ITS LEGAL ESSENTIALS, THE COMPLAINT SHOWS THESE FACTS. 
THE TENNEY COMMITTEE WAS CONSTITUTED BY A RESOLUTION OF THE CALIFORNIA
SENATE ON JUNE 20, 1947.  ON JANUARY 28, 1949, BRANDHOVE CIRCULATED A
PETITION AMONG MEMBERS OF THE STATE LEGISLATURE.  HE ALLEGES THAT IT
WAS CIRCULATED IN ORDER TO PERSUADE THE LEGISLATURE NOT TO APPROPRIATE
FURTHER FUNDS FOR THE COMMITTEE.  THE PETITION CHARGED THAT THE
COMMITTEE HAD USED BRANDHOVE AS A TOOL IN ORDER "TO SMEAR CONGRESSMAN
FRANCK R. HAVENNER AS A 'RED' WHEN HE WAS A CANDIDATE FOR MAYOR OF SAN
FRANCISCO IN 1947; AND THAT THE REPUBLICAN MACHINE IN SAN FRANCISCO AND
THE CAMPAIGN MANAGEMENT OF ELMER E. ROBINSON, FRANCK HAVENNER'S
OPPONENT, CONSPIRED WITH THE TENNEY COMMITTEE TO THIS END."  IN VIEW OF
THE CONFLICT BETWEEN THIS PETITION AND EVIDENCE PREVIOUSLY GIVEN BY
BRANDHOVE, THE COMMITTEE ASKED LOCAL PROSECUTING OFFICIALS TO INSTITUTE
CRIMINAL PROCEEDINGS AGAINST HIM.  THE COMMITTEE ALSO SUMMONED
BRANDHOVE TO APPEAR BEFORE THEM AT A HEARING HELD ON JANUARY 29. 
TESTIMONY WAS THERE TAKEN FROM THE MAYOR OF SAN FRANCISCO, ALLEGEDLY A
MEMBER OF THE CONSPIRACY.  THE PLAINTIFF APPEARED WITH COUNSEL, BUT
REFUSED TO GIVE TESTIMONY.  FOR THIS, HE WAS PROSECUTED FOR CONTEMPT IN
THE STATE COURTS.  UPON THE JURY'S FAILURE TO RETURN A VERDICT THIS
PROSECUTION WAS DROPPED.  AFTER BRANDHOVE REFUSED TO TESTIFY, THE
CHAIRMAN QUOTED TESTIMONY GIVEN BY BRANDHOVE AT PRIOR HEARINGS.  THE
CHAIRMAN ALSO READ INTO THE RECORD A STATEMENT CONCERNING AN ALLEGED
CRIMINAL RECORD OF BRANDHOVE, A NEWSPAPER ARTICLE DENYING THE TRUTH OF
HIS CHARGES, AND A DENIAL BY THE COMMITTEE'S COUNSEL - WHO WAS ABSENT -
THAT BRANDHOVE'S CHARGES WERE TRUE. 

BRANDHOVE ALLEGES THAT THE JANUARY 29 HEARING "WAS NOT HELD FOR A
LEGISLATIVE PURPOSE," BUT WAS DESIGNED "TO INTIMIDATE AND SILENCE
PLAINTIFF AND DETER AND PREVENT HIM FROM EFFECTIVELY EXERCISING HIS
CONSTITUTIONAL RIGHTS OF FREE SPEECH AND TO PETITION THE LEGISLATURE
FOR REDRESS OF GRIEVANCES, AND ALSO TO DEPRIVE HIM OF THE EQUAL
PROTECTION OF THE LAWS, DUE PROCESS OF LAW, AND OF THE ENJOYMENT OF
EQUAL PRIVILEGES AND IMMUNITIES AS A CITIZEN OF THE UNITED STATES UNDER
THE LAW, AND SO DID INTIMIDATE, SILENCE, DETER, AND PREVENT AND DEPRIVE
PLAINTIFF."  DAMAGES OF $10,000 WERE ASKED "FOR LEGAL COUNSEL,
TRAVELING, HOTEL ACCOMMODATIONS, AND OTHER MATTERS PERTAINING AND
NECESSARY TO HIS DEFENSE" IN THE CONTEMPT PROCEEDING ARISING OUT OF THE
COMMITTEE HEARINGS.  THE PLAINTIFF ALSO ASKED FOR PUNITIVE DAMAGES. 

THE ACTION WAS DISMISSED WITHOUT OPINION BY THE DISTRICT JUDGE.  THE
COURT OF APPEALS FOR THE NINTH CIRCUIT HELD, HOWEVER, THAT THE
COMPLAINT STATED A CAUSE OF ACTION AGAINST THE COMMITTEE AND ITS
MEMBERS.  183 F.2D 121.  FN2  WE BROUGHT THE CASE HERE BECAUSE
IMPORTANT ISSUES ARE RAISED CONCERNING THE RIGHTS OF INDIVIDUALS AND
THE POWER OF STATE LEGISLATURES.  340 U.S. 903. 

WE ARE AGAIN FACED WITH THE RECONSTRUCTION LEGISLATION WHICH CAUSED
THE COURT SUCH CONCERN IN SCREWS V. UNITED STATES, 325 U.S. 91, AND IN
THE WILLIAMS CASES DECIDED THIS TERM, ANTE, PP. 70, 97.  BUT THIS TIME
WE DO NOT HAVE TO WRESTLE WITH FAR-REACHING QUESTIONS OF
CONSTITUTIONALITY OR EVEN OF CONSTRUCTION.  WE THINK IT IS CLEAR THAT
THE LEGISLATION ON WHICH THIS ACTION IS FOUNDED DOES NOT IMPOSE
LIABILITY ON THE FACTS BEFORE US, ONCE THEY ARE RELATED TO THE
PRESUPPOSITIONS OF OUR POLITICAL HISTORY. 

THE PRIVILEGE OF LEGISLATORS TO BE FREE FROM ARREST OR CIVIL PROCESS
FOR WHAT THEY DO OR SAY IN LEGISLATIVE PROCEEDINGS HAS TAPROOTS IN THE
PARLIAMENTARY STRUGGLES OF THE SIXTEENTH AND SEVENTEENTH CENTURIES.  AS
PARLIAMENT ACHIEVED INCREASING INDEPENDENCE FROM THE CROWN, ITS
STATEMENT OF THE PRIVILEGE GREW STRONGER.  IN 1523, SIR THOMAS MORE
COULD MAKE ONLY A TENTATIVE CLAIM.  ROPER, LIFE OF SIR THOMAS MORE, IN
MORE'S UTOPIA (ADAMS ED.)  10.  IN 1668, AFTER A LONG AND BITTER
STRUGGLE, PARLIAMENT FINALLY LAID THE GHOST OF CHARLES I, WHO HAD
PROSECUTED SIR JOHN ELLIOT AND OTHERS FOR "SEDITIOUS" SPEECHES IN
PARLIAMENT.  PROCEEDINGS AGAINST SIR JOHN ELLIOT, 3 HOW.  ST. TR., 294,
332.  IN 1689, THE BILL OF RIGHTS DECLARED IN UNEQUIVOCAL LANGUAGE:
"THAT THE FREEDOM OF SPEECH, AND DEBATES OR PROCEEDINGS IN PARLIAMENT,
OUGHT NOT TO BE IMPEACHED OR QUESTIONED IN ANY COURT OR PLACE OUT OF
PARLIAMENT."  1 WM. & MARY, SESS. 2, C. II.  SEE STOCKDALE V. HANSARD,
9 AD. & EL. 1, 113-114(1839). 

FREEDOM OF SPEECH AND ACTION IN THE LEGISLATURE WAS TAKEN AS A MATTER
OF COURSE BY THOSE WHO SEVERED THE COLONIES FROM THE CROWN AND FOUNDED
OUR NATION.  IT WAS DEEMED SO ESSENTIAL FOR REPRESENTATIVES OF THE
PEOPLE THAT IT WAS WRITTEN INTO THE ARTICLES OF CONFEDERATION AND LATER
INTO THE CONSTITUTION.  ARTICLE V OF THE ARTICLES OF CONFEDERATION IS
QUITE CLOSE TO THE ENGLISH BILL OF RIGHTS:  "FREEDOM OF SPEECH AND
DEBATE IN CONGRESS SHALL NOT BE IMPEACHED OR QUESTIONED IN ANY COURT OR
PLACE OUT OF CONGRESS  ...  "  ARTICLE I, SEC. 6, OF THE CONSTITUTION
PROVIDES:  " ...  FOR ANY SPEECH OR DEBATE IN EITHER HOUSE, (THE
SENATORS AND REPRESENTATIVES) SHALL NOT BE QUESTIONED IN ANY OTHER
PLACE." 

THE REASON FOR THE PRIVILEGE IS CLEAR.  IT WAS WELL SUMMARIZED BY
JAMES WILSON, AN INFLUENTIAL MEMBER OF THE COMMITTEE OF DETAIL WHICH
WAS RESPONSIBLE FOR THE PROVISION IN THE FEDERAL CONSTITUTION.  "IN
ORDER TO ENABLE AND ENCOURAGE A REPRESENTATIVE OF THE PUBLIC TO
DISCHARGE HIS PUBLIC TRUST WITH FIRMNESS AND SUCCESS, IT IS
INDISPENSABLY NECESSARY, THAT HE SHOULD ENJOY THE FULLEST LIBERTY OF
SPEECH, AND THAT HE SHOULD BE PROTECTED FROM THE RESENTMENT OF EVERY
ONE, HOWEVER POWERFUL, TO WHOM THE EXERCISE OF THAT LIBERTY MAY
OCCASION OFFENCE."  II WORKS OF JAMES WILSON (ANDREWS ED. 1896) 38. 
SEE THE STATEMENT OF THE REASON FOR THE PRIVILEGE IN THE REPORT FROM
THE SELECT COMMITTEE ON THE OFFICIAL SECRETS ACTS (HOUSE OF COMMONS,
1939) XIV. 

THE PROVISION IN THE UNITED STATES CONSTITUTION WAS A REFLECTION OF
POLITICAL PRINCIPLES ALREADY FIRMLY ESTABLISHED IN THE STATES.  THREE
STATE CONSTITUTIONS ADOPTED BEFORE THE FEDERAL CONSTITUTION
SPECIFICALLY PROTECTED THE PRIVILEGE.  THE MARYLAND DECLARATION OF
RIGHTS, NOV. 3, 1776, PROVIDED:  "THAT FREEDOM OF SPEECH, AND DEBATES
OR PROCEEDINGS, IN THE LEGISLATURE, OUGHT NOT TO BE IMPEACHED IN ANY
OTHER COURT OR JUDICATURE."  ART. VIII.  THE MASSACHUSETTS CONSTITUTION
OF 1780 PROVIDED:  "THE FREEDOM OF DELIBERATION, SPEECH AND DEBATE, IN
EITHER HOUSE OF THE LEGISLATURE, IS SO ESSENTIAL TO THE RIGHTS OF THE
PEOPLE, THAT IT CANNOT BE THE FOUNDATION OF ANY ACCUSATION OR
PROSECUTION, ACTION, OR COMPLAINT, IN ANY OTHER COURT OR PLACE
WHATSOEVER."  PART THE FIRST, ART. XXI.  CHIEF JUSTICE PARSONS GAVE THE
FOLLOWING GLOSS TO THIS PROVISION IN COFFIN V. COFFIN, 4 MASS. 1,
27(1808): 

"THESE PRIVILEGES ARE THUS SECURED, NOT WITH THE INTENTION OF
PROTECTING THE MEMBERS AGAINST PROSECUTIONS FOR THEIR OWN BENEFIT, BUT
TO SUPPORT THE RIGHTS OF THE PEOPLE, BY ENABLING THEIR REPRESENTATIVES
TO EXECUTE THE FUNCTIONS OF THEIR OFFICE WITHOUT FEAR OF PROSECUTIONS,
CIVIL OR CRIMINAL.  I THEREFORE THINK THAT THE ARTICLE OUGHT NOT TO BE
CONSTRUED STRICTLY, BUT LIBERALLY, THAT THE FULL DESIGN OF IT MAY BE
ANSWERED.  I WILL NOT CONFINE IT TO DELIVERING AN OPINION, UTTERING A
SPEECH, OR HARANGUING IN DEBATE; BUT WILL EXTEND IT TO THE GIVING OF A
VOTE, TO THE MAKING OF A WRITTEN REPORT, AND TO EVERY OTHER ACT
RESULTING FROM THE NATURE, AND IN THE EXECUTION, OF THE OFFICE; AND I
WOULD DEFINE THE ARTICLE AS SECURING TO EVERY MEMBER EXEMPTION FROM
PROSECUTION, FOR EVERY THING SAID OR DONE BY HIM, AS A REPRESENTATIVE,
IN THE EXERCISE OF THE FUNCTIONS OF THAT OFFICE, WITHOUT INQUIRING
WHETHER THE EXERCISE WAS REGULAR ACCORDING TO THE RULES OF THE HOUSE,
OR IRREGULAR AND AGAINST THEIR RULES." 

THE NEW HAMPSHIRE CONSTITUTION OF 1784 PROVIDED:  "THE FREEDOM OF
DELIBERATION, SPEECH, AND DEBATE, IN EITHER HOUSE OF THE LEGISLATURE,
IS SO ESSENTIAL TO THE RIGHTS OF THE PEOPLE, THAT IT CANNOT BE THE
FOUNDATION OF ANY ACTION, COMPLAINT, OR PROSECUTION, IN ANY OTHER COURT
OR PLACE WHATSOEVER."  PART I, ART. XXX.  FN3 

IT IS SIGNIFICANT THAT LEGISLATIVE FREEDOM WAS SO CAREFULLY PROTECTED
BY CONSTITUTIONAL FRAMERS AT A TIME WHEN EVEN JEFFERSON EXPRESSED FEAR
OF LEGISLATIVE EXCESS.  FN4  FOR THE LOYALIST EXECUTIVE AND JUDICIARY
HAD BEEN DEPOSED, AND THE LEGISLATURE WAS SUPREME IN MOST STATES DURING
AND AFTER THE REVOLUTION.  "THE LEGISLATIVE DEPARTMENT IS EVERY WHERE
EXTENDING THE SPHERE OF ITS ACTIVITY, AND DRAWING ALL POWER INTO ITS
IMPETUOUS VORTEX."  MADISON, THE FEDERALIST, NO. XLVIII. 

AS OTHER STATES JOINED THE UNION OR REVISED THEIR CONSTITUTIONS, THEY
TOOK GREAT CARE TO PRESERVE THE PRINCIPLE THAT THE LEGISLATURE MUST BE
FREE TO SPEAK AND ACT WITHOUT FEAR OF CRIMINAL AND CIVIL LIABILITY. 
FORTY-ONE OF THE FORTY-EIGHT STATES NOW HAVE SPECIFIC PROVISIONS IN
THEIR CONSTITUTIONS PROTECTING THE PRIVILEGE.  FN5 

DID CONGRESS BY THE GENERAL LANGUAGE OF ITS 1871 STATUTE MEAN TO
OVERTURN THE TRADITION OF LEGISLATIVE FREEDOM ACHIEVED IN ENGLAND BY
CIVIL WAR AND CAREFULLY PRESERVED IN THE FORMATION OF STATE AND
NATIONAL GOVERNMENTS HERE?  DID IT MEAN TO SUBJECT LEGISLATORS TO CIVIL
LIABILITY FOR ACTS DONE WITHIN THE SPHERE OF LEGISLATIVE ACTIVITY?  LET
US ASSUME, MERELY FOR THE MOMENT, THAT CONGRESS HAS CONSTITUTIONAL
POWER TO LIMIT THE FREEDOM OF STATE LEGISLATORS ACTING WITHIN THEIR
TRADITIONAL SPHERE.  THAT WOULD BE A BIG ASSUMPTION.  BUT WE WOULD HAVE
TO MAKE AN EVEN RASHER ASSUMPTION TO FIND THAT CONGRESS THOUGHT IT HAD
EXERCISED THE POWER.  THESE ARE DIFFICULTIES WE CANNOT HURDLE.  THE
LIMITS OF SECS. 1 AND 2 OF THE 1871 STATUTE - NOW SECS. 43 AND 47(3) OF
TITLE 8 - WERE NOT SPELLED OUT IN DEBATE.  WE CANNOT BELIEVE THAT
CONGRESS - ITSELF A STAUNCH ADVOCATE OF LEGISLATIVE FREEDOM - WOULD
IMPINGE ON A TRADITION SO WELL GROUNDED IN HISTORY AND REASON BY COVERT
INCLUSION IN THE GENERAL LANGUAGE BEFORE US. 

WE COME THEN TO THE QUESTION WHETHER FROM THE PLEADINGS IT APPEARS
THAT THE DEFENDANTS WERE ACTING IN THE SPHERE OF LEGITIMATE LEGISLATIVE
ACTIVITY.  LEGISLATURES MAY NOT OF COURSE ACQUIRE POWER BY AN
UNWARRANTED EXTENSION OF PRIVILEGE.  THE HOUSE OF COMMONS' CLAIM OF
POWER TO ESTABLISH THE LIMITS OF ITS PRIVILEGE HAS BEEN LITTLE MORE
THAN A PRETENSE SINCE ASHBY V. WHITE, 2 LD. RAYM.  938, 3 ID. 320. 
THIS COURT HAS NOT HESITATED TO SUSTAIN THE RIGHTS OF PRIVATE
INDIVIDUALS WHEN IT FOUND CONGRESS WAS ACTING OUTSIDE ITS LEGISLATIVE
ROLE.  KILBOURN V. THOMPSON, 103 U.S. 168; MARSHALL V. GORDON, 243 U.S.
521; COMPARE MCGRAIN V. DAUGHERTY, 273 U.S. 135, 176. 

THE CLAIM OF AN UNWORTHY PURPOSE DOES NOT DESTROY THE PRIVILEGE. 
LEGISLATORS ARE IMMUNE FROM DETERRENTS TO THE UNINHIBITED DISCHARGE OF
THEIR LEGISLATIVE DUTY, NOT FOR THEIR PRIVATE INDULGENCE BUT FOR THE
PUBLIC GOOD.  ONE MUST NOT EXPECT UNCOMMON COURAGE EVEN IN
LEGISLATORS.  THE PRIVILEGE WOULD BE OF LITTLE VALUE IF THEY COULD BE
SUBJECTED TO THE COST AND INCONVENIENCE AND DISTRACTIONS OF A TRIAL
UPON A CONCLUSION OF THE PLEADER, OR TO THE HAZARD OF A JUDGMENT
AGAINST THEM BASED UPON A JURY'S SPECULATION AS TO MOTIVES.  THE
HOLDING OF THIS COURT IN FLETCHER V. PECK, 6 CRANCH 87, 130, THAT IT
WAS NOT CONSONANT WITH OUR SCHEME OF GOVERNMENT FOR A COURT TO INQUIRE
INTO THE MOTIVES OF LEGISLATORS, HAS REMAINED UNQUESTIONED.  SEE CASES
CITED IN ARIZONA V. CALIFORNIA, 283 U.S. 423, 455.    INVESTIGATIONS,
WHETHER BY STANDING OR SPECIAL COMMITTEES, ARE AN ESTABLISHED PART OF
REPRESENTATIVE GOVERNMENT N6.  LEGISLATIVE COMMITTEES HAVE BEEN CHARGED
WITH LOSING SIGHT OF THEIR DUTY OF DISINTERESTEDNESS.  IN TIMES OF
POLITICAL PASSION, DISHONEST OR VINDICTIVE MOTIVES ARE READILY
ATTRIBUTED TO LEGISLATIVE CONDUCT AND AS READILY BELIEVED.  FN7  COURTS
ARE NOT THE PLACE FOR SUCH CONTROVERSIES.  SELF-DISCIPLINE AND THE
VOTERS MUST BE THE ULTIMATE RELIANCE FOR DISCOURAGING OR CORRECTING
SUCH ABUSES.  THE COURTS SHOULD NOT GO BEYOND THE NARROW CONFINES OF
DETERMINING THAT A COMMITTEE'S INQUIRY MAY FAIRLY BE DEEMED WITHIN ITS
PROVINCE.  TO FIND THAT A COMMITTEE'S INVESTIGATION HAS EXCEEDED THE
BOUNDS OF LEGISLATIVE POWER IT MUST BE OBVIOUS THAT THERE WAS A
USURPATION OF FUNCTIONS EXCLUSIVELY VESTED IN THE JUDICIARY OR THE
EXECUTIVE.  THE PRESENT CASE DOES NOT PRESENT SUCH A SITUATION. 
BRANDHOVE INDICATED THAT EVIDENCE PREVIOUSLY GIVEN BY HIM TO THE
COMMITTEE WAS FALSE, AND HE RAISED SERIOUS CHARGES CONCERNING THE WORK
OF A COMMITTEE INVESTIGATING A PROBLEM WITHIN LEGISLATIVE CONCERN.  THE
COMMITTEE WAS ENTITLED TO ASSERT A RIGHT TO CALL THE PLAINTIFF BEFORE
IT AND EXAMINE HIM. 

IT SHOULD BE NOTED THAT THIS IS A CASE IN WHICH THE DEFENDANTS ARE
MEMBERS OF A LEGISLATURE.  LEGISLATIVE PRIVILEGE IN SUCH A CASE
DESERVES GREATER RESPECT THAN WHERE AN OFFICIAL ACTING ON BEHALF OF THE
LEGISLATURE IS SUED OR THE LEGISLATURE SEEKS THE AFFIRMATIVE AID OF THE
COURTS TO ASSERT A PRIVILEGE.  IN KILBOURN V. THOMPSON, SUPRA, THIS
COURT ALLOWED A JUDGMENT AGAINST THE SERGEANT-AT-ARMS, BUT FOUND THAT
ONE COULD NOT BE ENTERED AGAINST THE DEFENDANT MEMBERS OF THE HOUSE. 

WE HAVE ONLY CONSIDERED THE SCOPE OF THE PRIVILEGE AS APPLIED TO THE
FACTS OF THE PRESENT CASE.  AS MR. JUSTICE MILLER SAID IN THE KILBOURN
CASE:  "IT IS NOT NECESSARY TO DECIDE HERE THAT THERE MAY NOT BE THINGS
DONE, IN THE ONE HOUSE OR THE OTHER, OF AN EXTRAORDINARY CHARACTER, FOR
WHICH THE MEMBERS WHO TAKE PART IN THE ACT MAY BE HELD LEGALLY
RESPONSIBLE."  103 U.S. AT 204.  WE CONCLUDE ONLY THAT HERE THE
INDIVIDUAL DEFENDANTS AND THE LEGISLATIVE COMMITTEE WERE ACTING IN A
FIELD WHERE LEGISLATORS TRADITIONALLY HAVE POWER TO ACT, AND THAT THE
STATUTE OF 1871 DOES NOT CREATE CIVIL LIABILITY FOR SUCH CONDUCT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THAT OF THE
DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  R.S. SEC. 1980(PAR.  THIRD), 8 U.S.C. SEC. 47(3): 

"IF TWO OR MORE PERSONS IN ANY STATE OR TERRITORY CONSPIRE, OR GO IN
DISGUISE ON THE HIGHWAY OR ON THE PREMISES OF ANOTHER, FOR THE PURPOSE
OF DEPRIVING, EITHER DIRECTLY OR INDIRECTLY, ANY PERSON OR CLASS OF
PERSONS OF THE EQUAL PROTECTION OF THE LAWS, OR OF EQUAL PRIVILEGES AND
IMMUNITIES UNDER THE LAWS; OR FOR THE PURPOSE OF PREVENTING OR
HINDERING THE CONSTITUTED AUTHORITIES OF ANY STATE OR TERRITORY FROM
GIVING OR SECURING TO ALL PERSONS WITHIN SUCH STATE OR TERRITORY THE
EQUAL PROTECTION OF THE LAWS; OR IF TWO OR MORE PERSONS CONSPIRE TO
PREVENT BY FORCE, INTIMIDATION, OR THREAT, ANY CITIZEN WHO IS LAWFULLY
ENTITLED TO VOTE, FROM GIVING HIS SUPPORT OR ADVOCACY IN A LEGAL
MANNER, TOWARD OR IN FAVOR OF THE ELECTION OF ANY LAWFULLY QUALIFIED
PERSON AS AN ELECTOR FOR PRESIDENT OR VICE-PRESIDENT, OR AS A MEMBER OF
CONGRESS OF THE UNITED STATES; OR TO INJURE ANY CITIZEN IN PERSON OR
PROPERTY ON ACCOUNT OF SUCH SUPPORT OR ADVOCACY; IN ANY CASE OF
CONSPIRACY SET FORTH IN THIS SECTION, IF ONE OR MORE PERSONS ENGAGED
THEREIN DO, OR CAUSE TO BE DONE, ANY ACT IN FURTHERANCE OF THE OBJECT
OF SUCH CONSPIRACY, WHEREBY ANOTHER IS INJURED IN HIS PERSON OR
PROPERTY, OR DEPRIVED OF HAVING AND EXERCISING ANY RIGHT OR PRIVILEGE
OF A CITIZEN OF THE UNITED STATES, THE PARTY SO INJURED OR DEPRIVED MAY
HAVE AN ACTION FOR THE RECOVERY OF DAMAGES, OCCASIONED BY SUCH INJURY
OR DEPRIVATION, AGAINST ANY ONE OR MORE OF THE CONSPIRATORS." 

FN2  THE COURT OF APPEALS AFFIRMED THE DISMISSAL AS TO ROBINSON ON
THE GROUND THAT HE WAS NOT ACTING UNDER COLOR OF LAW AND THAT THE
COMPLAINT DID NOT SHOW HIM TO BE A MEMBER OF A CONSPIRACY.  WE HAVE
DENIED A PETITION TO REVIEW THIS DECISION.  341 U.S. 936. 

FN3  IN TWO STATE CONSTITUTIONS OF 1776, THE PRIVILEGE WAS PROTECTED
BY GENERAL PROVISIONS PRESERVING ENGLISH LAW.  SEE S.C. CONST., 1776,
ART. VII; N.J. CONST., 1776, ART. XXII.  COMPARE N.C. CONST., 1776,
SEC. XLV. 

THREE OTHER OF THE ORIGINAL STATES MADE SPECIFIC PROVISION TO PROTECT
LEGISLATIVE FREEDOM IMMEDIATELY AFTER THE FEDERAL CONSTITUTION WAS
ADOPTED.  SEE PA. CONST., 1790, ART. I, SEC. 17; GA. CONST., 1789, ART.
I, SEC. 14; DEL. CONST., 1792, ART. II, SEC. 11.  CONNECTICUT AND RHODE
ISLAND SO PROVIDED IN THE FIRST CONSTITUTIONS ENACTED TO REPLACE THEIR
UNCODIFIED ORGANIC LAW.  CONN. CONST., 1818, ART. THIRD, SEC. 10; R.I.
CONST., 1842, ART. IV, SEC. 5. 

IN NEW YORK, THE BILL OF RIGHTS PASSED BY THE LEGISLATURE ON JANUARY
26, 1787, PROVIDED:  "THAT THE FREEDOM OF SPEECH AND DEBATES, AND
PROCEEDINGS IN THE SENATE AND ASSEMBLY, SHALL NOT BE IMPEACHED OR
QUESTIONED IN ANY COURT OR PLACE OUT OF THE SENATE OR ASSEMBLY."  IN
VIRGINIA, AS WELL AS IN THE OTHER COLONIES, THE ASSEMBLIES HAD BUILT UP
A STRONG TRADITION OF LEGISLATIVE PRIVILEGE LONG BEFORE THE
REVOLUTION.  SEE CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN
COLONIES (1943), PASSIM, ESPECIALLY 70 AND 93 ET SEQ. 

FN4  SEE JEFFERSON, NOTES ON THE STATE OF VIRGINIA (3D AM. ED. 1801),
174-175.  THE NOTES WERE WRITTEN IN 1781.  SEE ALSO, A LETTER FROM
JEFFERSON TO MADISON, MARCH 15, 1789, TO BE PUBLISHED IN A FORTHCOMING
VOLUME OF THE PAPERS OF THOMAS JEFFERSON (BOYD ED.):  "THE TYRANNY OF
THE LEGISLATURES IS THE MOST FORMIDABLE DREAD AT PRESENT, AND WILL BE
FOR LONG YEARS."  AS TO THE POLITICAL CURRENTS AT THE TIME THE UNITED
STATES CONSTITUTION AND THE STATE CONSTITUTIONS WERE FORMULATED, SEE
CORWIN, THE PROGRESS OF CONSTITUTIONAL THEORY BETWEEN THE DECLARATION
OF INDEPENDENCE AND THE MEETING OF THE PHILADELPHIA CONVENTION, 30 AM.
HIST. REV. 511(1925). 

FN5  ALA. CONST., ART. IV, SEC. 56; ARIZ. CONST., ART. IV, 2, SEC. 7;
ARK. CONST., ART. V, SEC. 15; COLO. CONST., ART. V, SEC. 16; CONN.
CONST., ART. THIRD, SEC. 10; DEL. CONST., ART. II, SEC. 13; GA. CONST.,
ART. III, SEC. VII, PAR. III; IDAHO CONST., ART. III, SEC. 7; ILL.
CONST., ART. IV, SEC. 14; IND. CONST., ART. 4, SEC. 8; KAN. CONST.,
ART. 2, SEC. 22; KY. CONST., SEC. 43; LA. CONST., ART. III, SEC. 13;
ME. CONST., ART. IV, PT. THIRD, SEC. 8; MD. D.R. 10, CONST., ART. III,
SEC. 18; MASS. CONST., PT. FIRST, ART. 21; MICH. CONST., ART. V, SEC.
8; MINN. CONST., ART. IV, SEC. 8; MO. CONST., ART. III, SEC. 19; MONT.
CONST., ART. V, SEC. 15; NEB. CONST., ART. III, SEC. 26; N.H. CONST.,
PT. FIRST, ART. 30TH; N.J. CONST., ART. IV, SEC. IV, PAR. 8; N.M.
CONST., ART. IV, SEC. 13; N.Y. CONST., ART. III, SEC. 11; N.D. CONST.,
ART. II, SEC. 42; OHIO CONST., ART. II, SEC. 12; OKLA. CONST., ART. V,
SEC. 22; ORE.  CONST., ART. IV, SEC. 9; PA. CONST., ART. II, SEC. 15;
R.I. CONST., ART. IV, SEC. 5; S.D. CONST., ART. III, SEC. 11; TENN.
CONST., ART. II, SEC. 13; TEX. CONST., ART. III, SEC. 21; UTAH CONST.,
ART. VI, SEC. 8; VT. CONST., C. I, ART. 14TH; VA. CONST., ART. IV, SEC.
48; WASH. CONST., ART. II, SEC. 17; W. VA. CONST., ART. VI, SEC. 17;
WIS. CONST., ART. IV, SEC. 16; WYO. CONST., ART. 3, SEC. 16. 

COMPARE IOWA CONST., ART. III, SEC. 10; N.C. CONST., ART. II, SEC.
17(RIGHT OF LEGISLATOR TO PROTEST ACTION OF LEGISLATURE).  SEE ALSO,
CAL. CONST., ART. IV, SEC. 11; IOWA CONST., ART. III, SEC. 11; MISS. 
CONST., ART. 4, SEC. 48; NEV. CONST., ART. IV, SEC. 11; S.C. CONST.,
ART. III, SEC. 14(FREEDOM FROM ARREST).  ONLY THE FLORIDA CONSTITUTION
HAS NO PROVISION CONCERNING LEGISLATIVE PRIVILEGE. 

FN6  SEE WILSON, CONGRESSIONAL GOVERNMENT (1885), 303:  "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." 

FN7  SEE DILLIARD, CONGRESSIONAL INVESTIGATIONS:  THE ROLE OF THE
PRESS, 18 U. OF CHI.  L. REV. 585. 

MR. JUSTICE BLACK, CONCURRING. 

THE COURT HOLDS THAT THE CIVIL RIGHTS STATUTES  FN1  WERE NOT
INTENDED TO MAKE LEGISLATORS PERSONALLY LIABLE FOR DAMAGES TO A WITNESS
INJURED BY A COMMITTEE EXERCISING LEGISLATIVE POWER.  THIS RESULT IS
REACHED BY REFERENCE TO THE LONG-STANDING AND WISE TRADITION THAT
LEGISLATORS ARE IMMUNE FROM LEGAL RESPONSIBILITY FOR THEIR INTRA
LEGISLATIVE STATEMENTS AND ACTIVITIES.  THE COURT'S OPINION ALSO POINTS
OUT THAT KILBOURN V. THOMPSON, 103 U.S. 168, HELD LEGISLATIVE IMMUNITY
TO HAVE SOME LIMITS.  AND TODAY'S DECISION INDICATES THAT THERE IS A
POINT AT WHICH A LEGISLATOR'S CONDUCT SO FAR EXCEEDS THE BOUNDS OF
LEGISLATIVE POWER THAT HE MAY BE HELD PERSONALLY LIABLE IN A SUIT
BROUGHT UNDER THE CIVIL RIGHTS ACT.  I SUBSTANTIALLY AGREE WITH THE
COURT'S REASONING AND ITS CONCLUSION.  BUT SINCE THIS IS A DIFFICULT
CASE FOR ME, I THINK IT IMPORTANT TO EMPHASIZE WHAT WE DO NOT DECIDE. 

IT IS NOT HELD THAT THE VALIDITY OF LEGISLATIVE ACTION IS COEXTENSIVE
WITH THE PERSONAL IMMUNITY OF THE LEGISLATORS.  THAT IS TO SAY, THE
HOLDING THAT THE CHAIRMAN AND THE OTHER MEMBERS OF HIS COMMITTEE CANNOT
BE SUED IN THIS CASE IS NOT A HOLDING THAT THEIR ALLEGED PERSECUTION OF
BRANDHOVE IS LEGAL CONDUCT.  INDEED, AS I UNDERSTAND THE DECISION,
THERE IS STILL MUCH ROOM FOR CHALLENGE TO THE COMMITTEE ACTION.  THUS,
FOR EXAMPLE, IN ANY PROCEEDING INSTITUTED BY THE TENNEY COMMITTEE TO
FINE OR IMPRISON BRANDHOVE ON PERJURY, CONTEMPT OR OTHER CHARGES, HE
WOULD CERTAINLY BE ABLE TO DEFEND HIMSELF ON THE GROUND THAT THE
RESOLUTION CREATING THE COMMITTEE OR THE COMMITTEE'S ACTIONS UNDER IT
WERE UNCONSTITUTIONAL AND VOID. 

IN THIS CONNECTION IT IS NOT OUT OF PLACE TO OBSERVE THAT THE
RESOLUTION CREATING THE COMMITTEE IS SO BROADLY DRAWN THAT GRAVE DOUBTS
ARE RAISED AS TO WHETHER THE COMMITTEE COULD CONSTITUTIONALLY EXERCISE
ALL THE POWERS PURPORTEDLY BESTOWED ON IT.  FN2  IN PART, THE
RESOLUTION DIRECTS THE COMMITTEE 

"TO ASCERTAIN  ...  ALL FACTS RELATING TO THE ACTIVITIES OF PERSONS
AND GROUPS KNOWN OR SUSPECTED TO BE DOMINATED OR CONTROLLED BY A
FOREIGN POWER, AND WHO OWE ALLEGIANCE THERETO BECAUSE OF RELIGIOUS,
RACIAL, POLITICAL, IDEOLOGICAL, PHILOSOPHICAL, OR OTHER TIES, INCLUDING
BUT NOT LIMITED TO THE INFLUENCE UPON ALL SUCH PERSONS AND GROUPS OF
EDUCATION, ECONOMIC CIRCUMSTANCES, SOCIAL POSITIONS, FRATERNAL AND
CASUAL ASSOCIATIONS, LIVING STANDARDS, RACE, RELIGION, POLITICAL,
ANCESTRY AND THE ACTIVITIES OF PAID PROVOCATION  ...  "  CAL. SENATE
RESOLUTION 75, JUNE 20, 1947. 

OF COURSE THE COURT DOES NOT IN ANY WAY SANCTION A LEGISLATIVE
INQUISITION OF THE TYPE APPARENTLY AUTHORIZED BY THIS RESOLUTION. 

UNFORTUNATELY, IT IS TRUE THAT LEGISLATIVE ASSEMBLIES, BORN TO DEFEND
THE LIBERTY OF THE PEOPLE, HAVE AT TIMES VIOLATED THEIR SACRED TRUSTS
AND BECOME THE INSTRUMENTS OF OPPRESSION.  MANY SPECIFIC INSTANCES
COULD BE CITED BUT PERHAPS THE MOST RECENT SPECTACULAR ILLUSTRATION IS
THE USE OF A COMMITTEE OF THE ARGENTINE CONGRESS AS THE INSTRUMENT TO
STRANGLE THE INDEPENDENT NEWSPAPER LA PRENSA BECAUSE OF THE VIEWS IT
ESPOUSED.  FN3  IN LIGHT OF THIS ARGENTINE EXPERIENCE, IT DOES NOT SEEM
INAPPROPRIATE TO POINT OUT THAT THE RIGHT OF EVERY PERSON IN THIS
COUNTRY TO HAVE HIS SAY, HOWEVER UNORTHODOX OR UNPOPULAR HE OR HIS
OPINIONS MAY BE, IS GUARANTEED BY THE SAME CONSTITUTIONAL AMENDMENT
THAT PROTECTS THE FREE PRESS.  THOSE WHO CHERISH FREEDOM OF THE PRESS
HERE WOULD DO WELL TO REMEMBER THAT THIS FREEDOM CANNOT LONG SURVIVE
THE LEGISLATIVE SNUFFING OUT OF FREEDOM TO BELIEVE AND FREEDOM TO
SPEAK. 

FN1  8 U.S.C. SECS. 43, 47(3). 

FN2  SEE JUDGE EDGERTON DISSENTING IN BARSKY V. UNITED STATES, 83
U.S. APP. D.C. 127, 138, 167 F.2D 241, 252; JUDGE CHARLES E. CLARK
DISSENTING IN UNITED STATES V. JOSEPHSON, 165 F.2D 82, 93. 

FN3  N.Y. TIMES, MAR. 16, 1951, P. 1, COL. 2; N.Y. TIMES, MAR. 17,
1951, P. 1, COL. 2.  THE SITUATION WAS GRAPHICALLY DESCRIBED IN AN
EDITORIAL APPEARING IN LA NACION OF BUENOS AIRES ON MARCH 18, 1951:
"BUT NO ONE COULD HAVE IMAGINED UNTIL THIS MOMENT THAT CONGRESS,
PROPERLY INVESTED WITH IMPLICIT POWERS OF INVESTIGATION, COULD DECREE
INTERVENTIONS OF THIS NATURE INTENDED TO CARRY OUT ACTS WHICH, UNDER NO
CIRCUMSTANCE, COME WITHIN THE PROVINCE OF THE LEGISLATURE.  IN THE
PRESENT CASE THIS ALTERATION OF FUNCTIONS IS OF UNUSUAL IMPORTANCE
BECAUSE IT AFFECTS AN INVIOLABLE CONSTITUTIONAL PRINCIPLE.  IF CONGRESS
CANNOT DICTATE 'LAWS RESTRICTIVE OF THE FREEDOM OF THE PRESS' (ART. 23,
ARGENTINE CONSTITUTION), WHICH WOULD BE THE ONLY POSSIBLE STEP WITHIN
ITS SPECIFIC FUNCTION, HOW COULD IT TAKE POSSESSION OF NEWSPAPERS,
HINDER THEIR ACTIVITY AND DECIDE THEIR FATE, ALL THESE BEING ACTS
WHEREBY THE EXERCISE OF THAT SAME FREEDOM IS RENDERED IMPRACTICABLE? 
IF SUCH A STATE OF THINGS IS PERMITTED AND BECOMES GENERALIZED, THEN IT
MEANS THAT THE REPETITION OF THESE ACTS WHENEVER IT IS DEEMED SUITABLE
IN VIEW OF CONFLICTING OPINIONS, WOULD CAUSE THE CONSTITUTIONAL
GUARANTEE TO BE UTTERLY DISREGARDED.  ...  LAST YEAR THE ACTIVITIES OF
AN INVESTIGATING CONGRESSIONAL COMMISSION (THE COMMITTEE ON ANTI
ARGENTINE ACTIVITIES), APPOINTED FOR ANOTHER CONCRETE PURPOSE, SERVED
TO BRING ABOUT THE CLOSURE OF UP TO 49 NEWSPAPERS IN ONE DAY.  ...  "
SEE GENERALLY, EDITOR & PUBLISHER, MAR. 24, 1951, P. 5.    MR. JUSTICE
DOUGLAS, DISSENTING. 

I AGREE WITH THE OPINION OF THE COURT AS A STATEMENT OF GENERAL
PRINCIPLES GOVERNING THE LIABILITY OF LEGISLATIVE COMMITTEES AND
MEMBERS OF THE LEGISLATURES.  BUT I DO NOT AGREE THAT ALL ABUSES OF
LEGISLATIVE COMMITTEES ARE SOLELY FOR THE LEGISLATIVE BODY TO POLICE. 

WE ARE DEALING HERE WITH A RIGHT PROTECTED BY THE CONSTITUTION - THE
RIGHT OF FREE SPEECH.  THE CHARGE SEEMS STRAINED AND DIFFICULT TO
SUSTAIN; BUT IT IS THAT A LEGISLATIVE COMMITTEE BROUGHT THE WEIGHT OF
ITS AUTHORITY DOWN ON RESPONDENT FOR EXERCISING HIS RIGHT OF FREE
SPEECH.  REPRISAL FOR SPEAKING IS AS MUCH AN ABRIDGMENT AS A PRIOR
RESTRAINT.  IF A COMMITTEE DEPARTS SO FAR FROM ITS DOMAIN TO DEPRIVE A
CITIZEN OF A RIGHT PROTECTED BY THE CONSTITUTION, I CAN THINK OF NO
REASON WHY IT SHOULD BE IMMUNE.  YET THAT IS THE EXTENT OF THE
LIABILITY SOUGHT TO BE IMPOSED ON PETITIONERS UNDER 8 U.S.C. SEC. 43. 
FN1 

IT IS SPEECH AND DEBATE IN THE LEGISLATIVE DEPARTMENT WHICH OUR
CONSTITUTIONAL SCHEME MAKES PRIVILEGED.  INCLUDED, OF COURSE, ARE THE
ACTIONS OF LEGISLATIVE COMMITTEES THAT ARE AUTHORIZED TO CONDUCT
HEARINGS OR MAKE INVESTIGATIONS SO AS TO LAY THE FOUNDATION FOR
LEGISLATIVE ACTION.  BUT WE ARE APPARENTLY HOLDING TODAY THAT THE
ACTIONS OF THOSE COMMITTEES HAVE NO LIMITS IN THE EYES OF THE LAW.  MAY
THEY DEPART WITH IMPUNITY FROM THEIR LEGISLATIVE FUNCTIONS, SIT AS
KANGAROO COURTS, AND TRY MEN FOR THEIR LOYALTY AND THEIR POLITICAL
BELIEFS?  MAY THEY SUBSTITUTE TRIAL BEFORE COMMITTEES FOR TRIAL BEFORE
JURIES?  MAY THEY SIT AS A BOARD OF CENSORS OVER INDUSTRY, PREPARE
THEIR BLACKLISTS OF CITIZENS, AND ISSUE PRONOUNCEMENTS AS DEVASTATING
AS ANY BILL OF ATTAINDER? 

NO OTHER PUBLIC OFFICIAL HAS COMPLETE IMMUNITY FOR HIS ACTIONS.  EVEN
A POLICEMAN WHO EXACTS A CONFESSION BY FORCE AND VIOLENCE CAN BE HELD
CRIMINALLY LIABLE UNDER THE CIVIL RIGHTS ACT, AS WE RULED ONLY THE
OTHER DAY IN WILLIAMS V. UNITED STATES, 341 U.S. 97.  YET NOW WE HOLD
THAT NO MATTER THE EXTREMES TO WHICH A LEGISLATIVE COMMITTEE MAY GO IT
IS NOT ANSWERABLE TO AN INJURED PARTY UNDER THE CIVIL RIGHTS
LEGISLATION.  THAT RESULT IS THE NECESSARY CONSEQUENCE OF OUR RULING
SINCE THE TEST OF THE STATUTE, SO FAR AS MATERIAL HERE, IS WHETHER A
CONSTITUTIONAL RIGHT HAS BEEN IMPAIRED, NOT WHETHER THE DOMAIN OF THE
COMMITTEE WAS TRADITIONAL.  IT IS ONE THING TO GIVE GREAT LEEWAY TO THE
LEGISLATIVE RIGHT OF SPEECH, DEBATE, AND INVESTIGATION.  BUT WHEN A
COMMITTEE PERVERTS ITS POWER, BRINGS DOWN ON AN INDIVIDUAL THE WHOLE
WEIGHT OF GOVERNMENT FOR AN ILLEGAL OR CORRUPT PURPOSE, THE REASON FOR
THE IMMUNITY ENDS.  IT WAS INDEED THE PURPOSE OF THIS CIVIL RIGHTS
LEGISLATION TO SECURE FEDERAL RIGHTS AGAINST INVASION BY OFFICERS AND
AGENTS OF THE STATES.  I SEE NO REASON WHY ANY OFFICER OF GOVERNMENT
SHOULD BE HIGHER THAN THE CONSTITUTION FROM WHICH ALL RIGHTS AND
PRIVILEGES OF AN OFFICE OBTAIN. 

FN1  "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 
..END :



SCHWEGMANN BROS. V. CALVERT CORP., 341 U.S. 384 


ARGUED APRIL 9-10, 1951.  - DECIDED MAY 21, 1951.  - 184 F.2D 11,
REVERSED. 


THE MILLER-TYDINGS ACT EXEMPTS FROM THE OPERATION OF THE SHERMAN ACT
"CONTRACTS OR AGREEMENTS PRESCRIBING MINIMUM PRICES FOR THE RESALE" OF
SPECIFIED COMMODITIES WHEN "CONTRACTS OR AGREEMENTS OF THAT DESCRIPTION
ARE LAWFUL AS APPLIED TO INTRASTATE TRANSACTIONS" UNDER LOCAL LAW. 
RESPONDENTS, DISTRIBUTORS OF GIN AND WHISKEY IN INTERSTATE COMMERCE,
HAVE CONTRACTS OR AGREEMENTS WITH LOUISIANA RETAILERS FIXING MINIMUM
RETAIL PRICES FOR RESPONDENTS' PRODUCTS.  LOUISIANA LAW AUTHORIZES
ENFORCEMENT OF PRICE FIXING NOT ONLY AGAINST PARTIES TO A "CONTRACT"
BUT ALSO AGAINST NONSIGNERS.  PETITIONER, A RETAILER IN NEW ORLEANS,
REFUSED TO SIGN A PRICE-FIXING CONTRACT WITH RESPONDENTS AND SOLD
RESPONDENTS' PRODUCTS AT CUT-RATE PRICES.  HELD:  RESPONDENTS WERE NOT
ENTITLED BY REASON OF THE MILLER-TYDINGS ACT TO ENJOIN PETITIONER FROM
SELLING THEIR PRODUCTS AT LESS THAN THE MINIMUM PRICES FIXED BY THEIR
SCHEDULES.  PP. 385-395. 

(A)  PRICE FIXING IS UNLAWFUL PER SE UNDER THE SHERMAN ACT.  P. 386. 

(B)  THE MILLER-TYDINGS ACT EXEMPTS "CONTRACTS OR AGREEMENTS
PRESCRIBING MINIMUM PRICES FOR THE RESALE" OF THE ARTICLES PURCHASED,
NOT "CONTRACTS OR AGREEMENTS" RESPECTING THE PRACTICES OF
NONCONTRACTING COMPETITORS OF THE CONTRACTING RETAILERS.  PP. 387-390. 

(C)  THE HISTORY OF THE MILLER-TYDINGS ACT SUPPORTS THE CONSTRUCTION
HERE GIVEN IT. PP. 390-395. 

SCHWEGMANN BROTHERS ET AL. V. CALVERT DISTILLERS CORP. 

NO. 442.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT* . 

*TOGETHER WITH NO. 443, SCHWEGMANN BROTHERS ET AL. V. SEAGRAM
DISTILLERS CORP., ALSO ON CERTIORARI TO THE SAME COURT. 

THE DISTRICT COURT ENJOINED PETITIONER FROM ALLEGED UNLAWFUL PRICE
CUTTING.  THE COURT OF APPEALS AFFIRMED.  184 F.2D 11.  THIS COURT
GRANTED CERTIORARI.  340 U.S. 928.  REVERSED, P. 395. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, MARYLAND AND DELAWARE CORPORATIONS, ARE DISTRIBUTORS OF
GIN AND WHISKEY.  THEY SELL THEIR PRODUCTS TO WHOLESALERS IN LOUISIANA,
WHO IN TURN SELL TO RETAILERS.  RESPONDENTS HAVE A PRICE-FIXING SCHEME
WHEREBY THEY TRY TO MAINTAIN UNIFORM RETAIL PRICES FOR THEIR PRODUCTS. 
THEY ENDEAVOR TO MAKE RETAILERS SIGN PRICE-FIXING CONTRACTS UNDER WHICH
THE BUYERS PROMISE TO SELL AT NOT LESS THAN THE PRICES STATED IN
RESPONDENTS' SCHEDULES.  THEY HAVE INDEED SUCCEEDED IN GETTING OVER ONE
HUNDRED LOUISIANA RETAILERS TO SIGN THESE AGREEMENTS.  PETITIONER, A
RETAILER IN NEW ORLEANS, REFUSED TO AGREE TO THE PRICE-FIXING SCHEME
AND SOLD RESPONDENTS' PRODUCTS AT A CUT-RATE PRICE.  RESPONDENTS
THEREUPON BROUGHT THIS SUIT IN THE DISTRICT COURT BY REASON OF
DIVERSITY OF CITIZENSHIP TO ENJOIN PETITIONER FROM SELLING THE PRODUCTS
AT LESS THAN THE MINIMUM PRICES FIXED BY THEIR SCHEDULES. 

IT IS CLEAR FROM OUR DECISIONS UNDER THE SHERMAN ACT (26 STAT. 209)
THAT THIS INTERSTATE MARKETING ARRANGEMENT WOULD BE ILLEGAL, THAT IT
WOULD BE ENJOINED, THAT IT WOULD DRAW CIVIL AND CRIMINAL PENALTIES, AND
THAT NO COURT WOULD ENFORCE IT.  FIXING MINIMUM PRICES, LIKE OTHER
TYPES OF PRICE FIXING, IS ILLEGAL PER SE.  UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S. 150; KIEFER-STEWART CO. V. SEAGRAM & SONS, 340
U.S. 211.  RESALE PRICE MAINTENANCE WAS INDEED STRUCK DOWN IN DR. MILES
MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373.  THE FACT THAT A STATE
AUTHORIZES THE PRICE FIXING DOES NOT, OF COURSE, GIVE IMMUNITY TO THE
SCHEME, ABSENT APPROVAL BY CONGRESS. 

RESPONDENTS, HOWEVER, SEEK TO FIND LEGALITY FOR THIS MARKETING
ARRANGEMENT IN THE MILLER-TYDINGS ACT ENACTED IN 1937 AS AN AMENDMENT
TO SEC. 1 OF THE SHERMAN ACT.  50 STAT. 693, 15 U.S.C. SEC. 1.  THAT
AMENDMENT PROVIDES IN MATERIAL PART THAT "NOTHING HEREIN CONTAINED
SHALL RENDER ILLEGAL, CONTRACTS OR AGREEMENTS PRESCRIBING MINIMUM
PRICES FOR THE RESALE" OF SPECIFIED COMMODITIES WHEN "CONTRACTS OR
AGREEMENTS OF THAT DESCRIPTION ARE LAWFUL AS APPLIED TO INTRASTATE
TRANSACTIONS" UNDER LOCAL LAW.  FN1 

LOUISIANA HAS SUCH A LAW.  LA. GEN. STAT., SECS. 9809.1 ET SEQ. IT
PERMITS A "CONTRACT" FOR THE SALE OR RESALE OF A COMMODITY TO PROVIDE
THAT THE BUYER WILL NOT RESELL "EXCEPT AT THE PRICE STIPULATED BY THE
VENDOR."  THE LOUISIANA STATUTE GOES FURTHER.  IT NOT ONLY ALLOWS A
DISTRIBUTOR AND RETAILER TO MAKE A "CONTRACT" FIXING THE RESALE PRICE;
BUT ONCE THERE IS A PRICE-FIXING "CONTRACT," KNOWN TO A SELLER, WITH
ANY RETAILER IN THE STATE, IT ALSO CONDEMNS AS UNFAIR COMPETITION A
SALE AT LESS THAN THE PRICE STIPULATED EVEN THOUGH THE SELLER IS NOT A
PARTY TO THE "CONTRACT."  FN2  IN OTHER WORDS, THE LOUISIANA STATUTE
ENFORCES PRICE FIXING NOT ONLY AGAINST PARTIES TO A "CONTRACT" BUT ALSO
AGAINST NONSIGNERS.  SO FAR AS LOUISIANA LAW IS CONCERNED, PRICE FIXING
CAN BE ENFORCED AGAINST ALL RETAILERS ONCE ANY SINGLE RETAILER AGREES
WITH A DISTRIBUTOR ON THE RESALE PRICE.  AND THE ARGUMENT IS THAT THE
MILLER-TYDINGS ACT PERMITS THE SAME RANGE OF PRICE FIXING. 

THE ARGUMENT IS PHRASED AS FOLLOWS:  THE PRESENT ACTION IS OUTLAWED
BY THE SHERMAN ACT - THE MILLER-TYDINGS ACT APART - ONLY IF IT IS A
CONTRACT, COMBINATION, OR CONSPIRACY IN RESTRAINT OF TRADE.  BUT IF A
CONTRACT OR AGREEMENT IS THE VICE, THEN BY THE TERMS OF THE MILLER
TYDINGS ACT THAT CONTRACT OR AGREEMENT IS IMMUNIZED, PROVIDED IT IS
IMMUNIZED BY STATE LAW.  THE SAME IS TRUE IF THE VICE IS A CONSPIRACY,
SINCE A CONSPIRACY PRESUPPOSES AN AGREEMENT.  THAT WAS IN ESSENCE THE
VIEW OF THE COURT OF APPEALS, WHICH AFFIRMED BY A DIVIDED VOTE A
JUDGMENT OF A DISTRICT COURT ENJOINING PETITIONER FROM PRICE CUTTING. 
184 F.2D 11. 

THE ARGUMENT AT FIRST BLUSH HAS APPEAL.  BUT WE THINK IT OFFENDS THE
STATUTORY SCHEME. 

WE NOTE TO BEGIN WITH THAT THERE ARE CRITICAL DIFFERENCES BETWEEN
LOUISIANA'S LAW AND THE MILLER-TYDINGS ACT.  THE LATTER EXEMPTS ONLY
"CONTRACTS OR AGREEMENTS PRESCRIBING MINIMUM PRICES FOR THE RESALE." 
ON THE OTHER HAND, THE LOUISIANA LAW SANCTIONS THE FIXING OF MAXIMUM AS
WELL AS MINIMUM PRICES, FOR IT EXEMPTS ANY PROVISION THAT THE BUYER
WILL NOT RESELL "EXCEPT AT THE PRICE STIPULATED BY THE VENDOR."  WE
START THEN WITH A FEDERAL ACT WHICH DOES NOT, AS RESPONDENTS SUGGEST,
TURN OVER TO THE STATES THE HANDLING OF THE WHOLE PROBLEM OF RESALE
PRICE MAINTENANCE ON THIS TYPE OF COMMODITY.  WHAT IS GRANTED IS A
LIMITED IMMUNITY - A LIMITATION THAT IS FURTHER EMPHASIZED BY THE
INCLUSION IN THE STATE LAW AND THE EXCLUSION FROM THE FEDERAL LAW OF
THE NONSIGNER PROVISION.  THE OMISSION OF THE NONSIGNER PROVISION FROM
THE FEDERAL LAW IS FATAL TO RESPONDENTS' POSITION UNLESS WE ARE TO
PERFORM A DISTINCT LEGISLATIVE FUNCTION BY READING INTO THE ACT A
PROVISION THAT WAS METICULOUSLY OMITTED FROM IT. 

A REFUSAL TO READ THE NONSIGNER PROVISION INTO THE MILLER-TYDINGS ACT
MAKES SENSE IF WE ARE TO TAKE THE WORDS OF THE STATUTE IN THEIR NORMAL
AND CUSTOMARY MEANING.  THE ACT SANCTIONS ONLY "CONTRACTS OR
AGREEMENTS."  IF A DISTRIBUTOR AND ONE OR MORE RETAILERS WANT TO AGREE,
COMBINE, OR CONSPIRE TO FIX A MINIMUM PRICE, THEY CAN DO SO IF STATE
LAW PERMITS.  THEIR CONTRACT, COMBINATION, OR CONSPIRACY - HITHERTO
ILLEGAL - IS MADE LAWFUL.  THEY CAN FIX MINIMUM PRICES PURSUANT TO
THEIR CONTRACT OR AGREEMENT WITH IMPUNITY.  WHEN THEY SEEK, HOWEVER, TO
IMPOSE PRICE FIXING ON PERSONS WHO HAVE NOT CONTRACTED OR AGREED TO THE
SCHEME, THE SITUATION IS VASTLY DIFFERENT.  THAT IS NOT PRICE FIXING BY
CONTRACT OR AGREEMENT; THAT IS PRICE FIXING BY COMPULSION.  THAT IS NOT
FOLLOWING THE PATH OF CONSENSUAL AGREEMENT; THAT IS RESORT TO
COERCION. 

MUCH ARGUMENT IS MADE TO IMPORT INTO THE CONTRACTS WHICH RESPONDENTS
MAKE WITH RETAILERS A PROVISION THAT THE PARTIES MAY FORCE NONSIGNERS
INTO LINE.  IT IS SAID THAT STATE LAW ATTACHES THAT CONDITION TO EVERY
SUCH CONTRACT AND THAT THEREFORE THE MILLER-TYDINGS ACT EXEMPTS IT FROM
THE SHERMAN ACT.  SUCH A CONDITION, IF IMPLIED, CREATES AN AGREEMENT
RESPECTING NOT SALES MADE UNDER THE CONTRACT BUT OTHER SALES.  YET ALL
THAT ARE EXEMPTED BY THE MILLER-TYDINGS ACT ARE "CONTRACTS OR
AGREEMENTS PRESCRIBING MINIMUM PRICES FOR THE RESALE" OF THE ARTICLES
PURCHASED, NOT "CONTRACTS OR AGREEMENTS" RESPECTING THE PRACTICES OF
NONCONTRACTING COMPETITORS OF THE CONTRACTING RETAILERS. 

IT SHOULD BE NOTED IN THIS CONNECTION THAT THE MILLER-TYDINGS ACT
EXPRESSLY CONTINUES THE PROHIBITIONS OF THE SHERMAN ACT AGAINST
"HORIZONTAL" PRICE FIXING BY THOSE IN COMPETITION WITH EACH OTHER AT
THE SAME FUNCTIONAL LEVEL.  FN3 THEREFORE, WHEN A STATE COMPELS
RETAILERS TO FOLLOW A PARALLEL PRICE POLICY, IT DEMANDS PRIVATE CONDUCT
WHICH THE SHERMAN ACT FORBIDS.  SEE PARKER V. BROWN, 317 U.S. 341,
350.  ELIMINATION OF PRICE COMPETITION AT THE RETAIL LEVEL MAY, OF
COURSE, LAWFULLY RESULT IF A DISTRIBUTOR SUCCESSFULLY NEGOTIATES
INDIVIDUAL "VERTICAL" AGREEMENTS WITH ALL HIS RETAILERS.  BUT WHEN
RETAILERS ARE FORCED TO ABANDON PRICE COMPETITION, THEY ARE DRIVEN INTO
A COMPACT IN VIOLATION OF THE SPIRIT OF THE PROVISO WHICH FORBIDS
"HORIZONTAL" PRICE FIXING.  A REAL SANCTION CAN BE GIVEN THE
PROHIBITIONS OF THE PROVISO ONLY IF THE PRICE MAINTENANCE POWER GRANTED
A DISTRIBUTOR IS LIMITED TO VOLUNTARY ENGAGEMENTS.  OTHERWISE, THE
EXCEPTION SWALLOWS THE PROVISO AND DESTROYS ITS PRACTICAL
EFFECTIVENESS. 

THE CONTRARY CONCLUSION WOULD HAVE A VAST AND DEVASTATING EFFECT ON
SHERMAN ACT POLICIES.  IF IT WERE ADOPTED, ONCE A DISTRIBUTOR EXECUTED
A CONTRACT WITH A SINGLE RETAILER SETTING THE MINIMUM RESALE PRICE FOR
A COMMODITY IN THE STATE, ALL OTHER RETAILERS COULD BE FORCED INTO
LINE.  HAD CONGRESS DESIRED TO ELIMINATE THE CONSENSUAL ELEMENT FROM
THE ARRANGEMENT AND TO PERMIT BLANKETING A STATE WITH RESALE PRICE
FIXING IF ONLY ONE RETAILER WANTED IT, WE FEEL THAT DIFFERENT MEASURES
WOULD HAVE BEEN ADOPTED - EITHER A NONSIGNER PROVISION WOULD HAVE BEEN
INCLUDED OR RESALE PRICE FIXING WOULD HAVE BEEN AUTHORIZED WITHOUT
MORE.  CERTAINLY THE WORDS USED CONNOTE A VOLUNTARY SCHEME.  CONTRACTS
OR AGREEMENTS CONVEY THE IDEA OF A COOPERATIVE ARRANGEMENT, NOT A
PROGRAM WHEREBY RECALCITRANTS ARE DRAGGED IN BY THE HEELS AND COMPELLED
TO SUBMIT TO PRICE FIXING. 

THE HISTORY OF THE ACT SUPPORTS THIS CONSTRUCTION.  THE EFFORTS TO
OVERRIDE THE RULE OF DR. MILES MEDICAL CO. V. PARK & SONS CO., SUPRA,
WERE LONG AND PERSISTENT.  MANY BILLS HAD BEEN INTRODUCED ON THIS
SUBJECT BEFORE SENATOR TYDINGS INTRODUCED HIS.  THUS IN 1929, IN THE
SEVENTY-FIRST CONGRESS, THE CAPPER-KELLY FAIR TRADE BILL WAS OFFERED. 
FN4  IT HAD NO NONSIGNER PROVISION.  IT MERELY PERMITTED RESALE PRICE
MAINTENANCE AS RESPECTS SPECIFIED CLASSES OF COMMODITIES BY DECLARING
THAT NO SUCH "CONTRACT RELATING TO THE SALE OR RESALE" SHALL BE
UNLAWFUL.  AS STATED IN THE HOUSE REPORT, THAT BILL MERELY LEGALIZED AN
AGREEMENT "THAT THE VENDEE WILL NOT RESELL THE COMMODITY SPECIFIED IN
THE CONTRACT EXCEPT AT A STIPULATED PRICE."  FN5  THAT BILL BECAME THE
MODEL FOR THE CALIFORNIA ACT PASSED IN 1931 - THE FIRST STATE ACT
PERMITTING RESALE PRICE MAINTENANCE.  FN6  THE CALIFORNIA ACT CONTAINED
NO NONSIGNER CLAUSE.  NEITHER DID THE CAPPER-KELLY BILL THAT WAS
INTRODUCED IN THE SEVENTY-SECOND CONGRESS.  FN7  SO FAR AS MATERIAL
HERE IT WAS IDENTICAL WITH ITS PREDECESSOR. 

THE CAPPER-KELLY BILL DID NOT PASS.  AND BY THE TIME THE NEXT BILL
WAS INTRODUCED - THREE YEARS LATER - THE CALIFORNIA ACT HAD BEEN
CHANGED BY THE ADDITION OF THE NONSIGNER PROVISION.  FN8  THAT WAS IN
1933.  YET WHEN IN 1936 SENATOR TYDINGS INTRODUCED HIS FIRST BILL IN
THE SEVENTY-FOURTH CONGRESS  FN9  HE FOLLOWED SUBSTANTIALLY THE CAPPER
KELLY BILLS AND WROTE NO NONSIGNER PROVISION INTO IT.  HIS BILL MERELY
LEGALIZED "CONTRACTS OR AGREEMENTS PRESCRIBING MINIMUM PRICES OR OTHER
CONDITIONS FOR THE RESALE" OF A COMMODITY.  BY THIS DATE SEVERAL
ADDITIONAL STATES HAD RESALE PRICE MAINTENANCE LAWS WITH NONSIGNER
PROVISIONS.  FN10  EVEN THOUGH THE STATE LAWS WERE THE MODELS FOR THE
FEDERAL BILLS, THE NONSIGNER PROVISION WAS NEVER ADDED.  THAT WAS TRUE
OF THE BILL INTRODUCED IN THE SEVENTY-FIFTH CONGRESS AS WELL AS THE
SUBSEQUENT ONE.  THEY ALL FOLLOWED IN THIS RESPECT THE PATTERN OF THE
CAPPER-KELLY BILL AS IT APPEARED BEFORE THE FIRST NONSIGNER PROVISION
WAS WRITTEN INTO STATE LAW.  THE "CONTRACT" CONCEPT UTILIZED BY CAPPER
KELLY BEFORE THERE WAS A NONSIGNER PROVISION IN STATE LAW WAS THUS
CONTINUED EVEN AFTER THE NONSIGNER PROVISION APPEARED.  THE INFERENCE,
THEREFORE, IS STRONG THAT THERE WAS CONTINUITY BETWEEN THE FIRST
TYDINGS BILL AND THE PRECEDING CAPPER-KELLY BILLS.  THE TYDINGS BILLS
BUILT ON THE SAME FOUNDATION; THEY WERE NO MORE CONCERNED WITH
NONSIGNER PROVISIONS THAN WERE THEIR PREDECESSORS.  IN VIEW OF THIS
HISTORY WE CAN ONLY CONCLUDE THAT, IF THE DRAFTSMAN INTENDED THAT THE
NONSIGNING RETAILER WAS TO BE COERCED, IT WAS STRANGE INDEED THAT HE
OMITTED THE ONE CLEAR PROVISION THAT WOULD HAVE ACCOMPLISHED THAT
RESULT. 

AN ARGUMENT IS MADE FROM THE REPORTS AND DEBATES TO THE EFFECT THAT
"CONTRACTS OR AGREEMENTS" NEVERTHELESS INCLUDES THE NONSIGNER
PROVISIONS OF STATE LAW.  THE SENATE REPORT ON THE FIRST TYDINGS BILL,
AFTER STATING THAT THE CALIFORNIA LAW AUTHORIZED A DISTRIBUTOR "TO MAKE
A CONTRACT THAT THE PURCHASER WILL NOT RESELL" EXCEPT AT THE STIPULATED
PRICE, SAID THAT THE PROPOSED FEDERAL LAW "DOES NO MORE THAN TO REMOVE
FEDERAL OBSTACLES TO THE ENFORCEMENT OF CONTRACTS WHICH THE STATES
THEMSELVES HAVE DECLARED LAWFUL."  FN11  THE SENATE REPORT ON THE
SECOND TYDINGS BILL, WHICH WAS INTRODUCED IN THE SEVENTY-FIFTH
CONGRESS, DID LITTLE MORE THAN REPRINT THE EARLIER REPORT.  FN12  THE
HOUSE REPORT, HEAVILY RELIED ON HERE, GAVE A MORE EXTENDED ANALYSIS. 
FN13 

THE HOUSE REPORT REFERRED TO THE STATE FAIR TRADE ACTS AS AUTHORIZING
THE MAINTENANCE OF RESALE PRICES BY CONTRACT AND AS PROVIDING THAT
"THIRD PARTIES WITH NOTICE ARE BOUND BY THE TERMS OF SUCH A CONTRACT
REGARDLESS OF WHETHER THEY ARE PARTIES TO IT"; AND THE REPORT ALSO
STATED THAT THE OBJECTIVE OF THE ACT WAS TO PERMIT THE PUBLIC POLICY OF
THE STATES HAVING SUCH ACTS TO OPERATE WITH RESPECT TO INTERSTATE
CONTRACTS FOR THE SALE OF GOODS.  FN14  THIS REPORT IS THE STRONGEST
STATEMENT FOR RESPONDENTS' POSITION WHICH IS FOUND IN THE LEGISLATIVE
HISTORY.  THE BILL WHICH THAT REPORT ENDORSED, HOWEVER, DID NOT PASS. 
THE BILL WHICH BECAME THE LAW WAS ATTACHED BY THE SENATE COMMITTEE ON
THE DISTRICT OF COLUMBIA AS A RIDER TO THE DISTRICT OF COLUMBIA REVENUE
BILL.  IN THAT FORM IT WAS DEBATED AND PASSED. 

IT IS TRUE THAT THE HOUSE REPORT QUOTED ABOVE  FN15  WAS REFERRED TO
WHEN THE SENATE AMENDMENT TO THE REVENUE MEASURE WAS BEFORE THE HOUSE. 
FN16  AND ONE CONGRESSMAN IN THE DEBATE SAID THAT THE NONSIGNER
PROVISION OF STATE LAWS WAS VALIDATED BY THE FEDERAL LAW.    BUT WE DO
NOT TAKE THESE REMARKS AT FACE VALUE.  IN THE FIRST PLACE, THE HOUSE
REPORT, WHILE REFERRING TO THE NONSIGNER PROVISION WHEN DESCRIBING A
TYPICAL STATE FAIR TRADE ACT, IS SO DRAFTED THAT THE VOLUNTARY CONTRACT
IS THE CORE OF THE ARGUMENT FOR THE BILL.  HENCE, THE GENERAL STATEMENT
IN THE REPORT STATES THAT THE SOLE OBJECTIVE OF THE ACT WAS "TO PERMIT
THE PUBLIC POLICY OF STATES HAVING 'FAIR TRADE ACTS' TO OPERATE WITH
RESPECT TO INTERSTATE CONTRACTS FOR THE RESALE OF GOODS"; AND THE FAIR
TRADE ACTS ARE REFERRED TO AS LEGALIZING "THE MAINTENANCE, BY CONTRACT,
OF RESALE PRICES OF BRANDED OR TRADE-MARKED GOODS."  FN17 

IN THE SECOND PLACE, THE REMARKS RELIED ON WERE NOT ONLY ABOUT A BILL
ON WHICH NO VOTE WAS TAKEN; THEY WERE ABOUT A BILL WHICH SANCTIONED
"CONTRACTS OR AGREEMENTS" PRESCRIBING NOT ONLY "MINIMUM PRICES" BUT
"OTHER CONDITIONS" AS WELL.  THE WORDS "OTHER CONDITIONS" WERE DROPPED
FROM THE AMENDMENT THAT WAS MADE TO THE REVENUE BILL.  WHY THEY WERE
DELETED DOES NOT APPEAR.  IT IS SAID THAT THEY HAVE NO RELEVANCE TO THE
PRESENT PROBLEM, SINCE WE ARE DEALING HERE WITH "MINIMUM PRICES" NOT
WITH "OTHER CONDITIONS."  BUT THAT ANSWER DOES NOT QUITE HOLD.  THE
QUESTION IS THE AMOUNT OF STATE LAW EMBRACED IN THE WORDS "CONTRACTS OR
AGREEMENTS."  IT MIGHT WELL BE ARGUED THAT ONE OF THE "CONDITIONS"
ATTACHING TO A CONTRACT FIXING A MINIMUM PRICE WOULD BE THE LIABILITY
OF A NONSIGNER.  WE DO NO MORE THAN STIR THE DOUBT, FOR THE DOUBT ALONE
IS ENOUGH TO MAKE US SKEPTICAL OF THE FULL IMPLICATIONS OF THE OLD
REPORT AS APPLIED TO A NEW AND DIFFERENT BILL. 

WE LOOK FOR MORE DEFINITE CLUES; AND WE FIND THE FOLLOWING STATEMENT
MADE ON THE FLOOR BY SENATOR TYDINGS: "WHAT DOES THE AMENDMENT DO?  IT
PERMITS A MAN WHO MANUFACTURES AN ARTICLE TO STATE THE MINIMUM RESALE
PRICE OF THE ARTICLE IN A CONTRACT WITH THE MAN WHO BUYS IT FOR
ULTIMATE RESALE TO THE PUBLIC  ...  "  FN18  NOT ONCE DID SENATOR
TYDINGS REFER TO THE NONSIGNER PROVISIONS OF STATE LAW.  NOT ONCE DID
HE SUGGEST THAT THE AMENDMENT WOULD AFFECT ANYONE BUT THE RETAILER WHO
SIGNS THE CONTRACT.  WE SEARCH THE WORDS OF THE SPONSORS FOR A CLEAR
INDICATION THAT COERCIVE AS WELL AS VOLUNTARY SCHEMES OR ARRANGEMENTS
ARE PERMISSIBLE.  WE FIND NONE.  FN19  WHAT WE DO FIND IS THE
EXPRESSION OF FEAR IN THE MINORITY REPORT OF THE SENATE COMMITTEE THAT
THE NONSIGNER PROVISIONS OF THE STATE LAWS WOULD BE MADE EFFECTIVE IF
THE LAW PASSED.  FN20  THESE FEARS WERE PRESENTED IN THE SENATE DEBATE
BY SENATOR KING IN OPPOSITION TO THE AMENDMENT.  FN21  BUT THE SENATE
REPORT EMPHASIZES THE "PERMISSIVE" NATURE OF THE STATE LAWS,  FN22  NOT
ONCE POINTING TO THEIR COERCIVE FEATURES. 

THE FEARS AND DOUBTS OF THE OPPOSITION ARE NO AUTHORITATIVE GUIDE TO
THE CONSTRUCTION OF LEGISLATION.  IT IS THE SPONSORS THAT WE LOOK TO
WHEN THE MEANING OF THE STATUTORY WORDS IS IN DOUBT.  AND WHEN WE READ
WHAT THE SPONSORS WROTE AND SAID ABOUT THE AMENDMENT, WE CANNOT FIND
THAT THE DISTRIBUTORS WERE TO HAVE THE RIGHT TO USE NOT ONLY A CONTRACT
TO FIX RETAIL PRICES BUT A CLUB AS WELL.  THE WORDS THEY USED -
"CONTRACTS OR AGREEMENTS" - SUGGEST JUST THE CONTRARY. 

IT SHOULD BE REMEMBERED THAT IT WAS THE STATE LAWS THAT THE FEDERAL
LAW WAS DESIGNED TO ACCOMMODATE.  FEDERAL REGULATION WAS TO GIVE WAY TO
STATE REGULATION.  WHEN STATE REGULATION PROVIDED FOR RESALE PRICE
MAINTENANCE BY BOTH THOSE WHO CONTRACTED AND THOSE WHO DID NOT, AND THE
FEDERAL REGULATION WAS RELAXED ONLY AS RESPECTS "CONTRACTS OR
AGREEMENTS," THE INFERENCE IS STRONG THAT CONGRESS LEFT THE
NONCONTRACTING GROUP TO BE GOVERNED BY PREEXISTING LAW.  IN OTHER
WORDS, SINCE CONGRESS WAS WRITING A LAW TO MEET THE SPECIFICATIONS OF
STATE LAW, IT WOULD SEEM THAT IF THE NONSIGNER PROVISION AS WELL AS THE
"CONTRACT" PROVISION OF STATE LAW WERE TO BE WRITTEN INTO FEDERAL LAW,
THE PATTERN OF THE LEGISLATION WOULD HAVE BEEN DIFFERENT. 

WE COULD CONCLUDE THAT CONGRESS CARVED OUT THE VAST EXCEPTION FROM
THE SHERMAN ACT NOW CLAIMED ONLY IF WE WERE WILLING TO ASSUME THAT IT
TOOK A DEVIOUS ROUTE AND YET FAILED TO MAKE ITS PURPOSE PLAIN. 
REVERSED. 

FN1  RESALE PRICE MAINTENANCE IS ALLOWED ONLY AS RESPECTS COMMODITIES
WHICH BEAR, OR THE LABEL OR CONTAINER OF WHICH BEAR, THE TRADE MARK,
BRAND, OR NAME OF THE PRODUCER OR DISTRIBUTOR AND WHICH ARE IN FREE AND
OPEN COMPETITION WITH COMMODITIES OF THE SAME GENERAL CLASS PRODUCED OR
DISTRIBUTED BY OTHERS.  EXCLUDED ARE AGREEMENTS BETWEEN MANUFACTURERS,
BETWEEN PRODUCERS, BETWEEN WHOLESALERS, BETWEEN BROKERS, BETWEEN
FACTORS, BETWEEN RETAILERS OR BETWEEN PERSONS, FIRMS OR CORPORATIONS IN
COMPETITION WITH EACH OTHER. 

FN2  THE NONSIGNER CLAUSE IN THE LOUISIANA ACT READS AS FOLLOWS:
"WILFULLY AND KNOWINGLY ADVERTISING, OFFERING FOR SALE OR SELLING ANY
COMMODITY AT LESS THAN THE PRICE STIPULATED IN ANY CONTRACT ENTERED
INTO PURSUANT TO THE PROVISION OF SECTION 1(SEC.  9809.1) OF THIS ACT,
WHETHER THE PERSON SO ADVERTISING, OFFERING FOR SALE OR SELLING IS OR
IS NOT A PARTY TO SUCH CONTRACT, IS UNFAIR COMPETITION AND IS
ACTIONABLE AT THE SUIT OF ANY PERSON DAMAGED THEREBY." 

FN3  "PROVIDED FURTHER, THAT THE PRECEDING PROVISO SHALL NOT MAKE
LAWFUL ANY CONTRACT OR AGREEMENT, PROVIDING FOR THE ESTABLISHMENT OR
MAINTENANCE OF MINIMUM RESALE PRICES ON ANY COMMODITY HEREIN INVOLVED,
BETWEEN MANUFACTURERS, OR BETWEEN PRODUCERS, OR BETWEEN WHOLESALERS,
...  OR BETWEEN RETAILERS, OR BETWEEN PERSONS, FIRMS, OR CORPORATIONS
IN COMPETITION WITH EACH OTHER."  15 U.S.C. SEC. 1. 

FN4  S. 240, 71ST CONG., 1ST SESS.; H.R. 11, 71ST CONG., 1ST SESS.
SEE H.R. REP. NO. 536, 71ST CONG., 2D SESS. 

FN5  H.R. REP. NO. 536, 71ST CONG., 2D SESS. 2. 

FN6 CAL. STAT., 1931, C. 278.  THE CALIFORNIA ACT WAS SOMETIMES KNOWN
AS "THE JUNIOR CAPPER-KELLY."  SEE GRETHER, PRICE CONTROL UNDER FAIR
TRADE LEGISLATION (1939), P. 54. 

FN7  S. 97, 72D CONG., 1ST SESS.; H.R. 11, 72D CONG., 1ST SESS. 

FN8  CAL. STAT., 1933, C. 260:  THE CALIFORNIA LAW IS NOW FOUND IN
BUSINESS & PROFESSIONS CODE, PT. 2, C. 3, SEC. 16904. 

FN9  S. 3822, 74TH CONG., 2D SESS., 80 CONG. REC. 1007. 

FN10  SEE ILL. LAWS 1935, P. 1436; IOWA LAWS 1935, C. 106; MD. LAWS
1935, C. 212, SEC. 2; N.J. LAWS 1935, C. 58, SEC. 2; N.Y. LAWS 1935, C.
976, SEC. 2; ORE.  LAWS 1935, C. 295, SEC. 2; PA. LAWS 1935, NO. 115,
SEC. 2; WASH. LAWS 1935, C. 177, SEC. 4; WIS. LAWS 1935, C. 52. 

FN11  S. REP. NO. 2053, 74TH CONG., 2D SESS. 2. 

FN12  S. REP. NO. 257, 75TH CONG., 1ST SESS. 

FN13  H.R. REP. NO. 382, 75TH CONG., 1ST SESS. 

FN14  ID., P. 2. 

FN15 ID. 

FN16  SEE, E.G., THE STATEMENT OF REP. DIRKSEN, A HOUSE CONFEREE, IN
81 CONG. REC. 8138. 

FN17  H.R. REP. NO. 382, 75TH CONG., 1ST SESS. 2. 

FN18  81 CONG. REC. 7495. 

FN19  H.R. REP. NO. 1413, 75TH CONG., 1ST SESS. 10(THE CONFERENCE
REPORT OF THE HOUSE) MERELY STATED:  "THIS AMENDMENT PROVIDES FOR AN
AMENDMENT TO THE ANTITRUST LAWS UNDER WHICH CONTRACTS AND AGREEMENTS
STIPULATING MINIMUM RESALE PRICES OF CERTAIN COMMODITIES, AND WHICH ARE
SIMILAR TO CONTRACTS AND AGREEMENTS WHICH ARE LAWFUL AS APPLIED TO
INTRASTATE COMMERCE, ARE NOT TO BE REGARDED AS BEING ILLEGAL UNDER THE
ANTITRUST LAWS." 

FN20  S. REP. NO. 879, 75TH CONG., 1ST SESS. 

FN21  81 CONG. REC. 7491.  AND SEE S. REP. NO. 879, PART 2, 75TH
CONG., 1ST SESS. 

FN22  S. REP. NO. 879, 75TH CONG., 1ST SESS. 6. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE MINTON JOINS, CONCURRING. 

I AGREE WITH THE COURT'S JUDGMENT AND WITH ITS OPINION INSOFAR AS IT
RESTS UPON THE LANGUAGE OF THE MILLER-TYDINGS ACT.  BUT IT DOES NOT
APPEAR THAT THERE IS EITHER NECESSITY OR PROPRIETY IN GOING BACK OF IT
INTO LEGISLATIVE HISTORY. 

RESORT TO LEGISLATIVE HISTORY IS ONLY JUSTIFIED WHERE THE FACE OF THE
ACT IS INESCAPABLY AMBIGUOUS, AND THEN I THINK WE SHOULD NOT GO BEYOND
COMMITTEE REPORTS, WHICH PRESUMABLY ARE WELL CONSIDERED AND CAREFULLY
PREPARED.  I CANNOT DENY THAT I HAVE SOMETIMES OFFENDED AGAINST THAT
RULE.  BUT TO SELECT CASUAL STATEMENTS FROM FLOOR DEBATES, NOT ALWAYS
DISTINGUISHED FOR CANDOR OR ACCURACY, AS A BASIS FOR MAKING UP OUR
MINDS WHAT LAW CONGRESS INTENDED TO ENACT IS TO SUBSTITUTE OURSELVES
FOR THE CONGRESS IN ONE OF ITS IMPORTANT FUNCTIONS.  THE RULES OF THE
HOUSE AND SENATE, WITH THE SANCTION OF THE CONSTITUTION, REQUIRE THREE
READINGS OF AN ACT IN EACH HOUSE BEFORE FINAL ENACTMENT.  THAT IS
INTENDED, I TAKE IT, TO MAKE SURE THAT EACH HOUSE KNOWS WHAT IT IS
PASSING AND PASSES WHAT IT WANTS, AND THAT WHAT IS ENACTED WAS FORMALLY
REDUCED TO WRITING.  IT IS THE BUSINESS OF CONGRESS TO SUM UP ITS OWN
DEBATES IN ITS LEGISLATION.  MOREOVER, IT IS ONLY THE WORDS OF THE BILL
THAT HAVE PRESIDENTIAL APPROVAL, WHERE THAT APPROVAL IS GIVEN.  IT IS
NOT TO BE SUPPOSED THAT, IN SIGNING A BILL, THE PRESIDENT ENDORSES THE
WHOLE CONGRESSIONAL RECORD.  FOR US TO UNDERTAKE TO RECONSTRUCT AN
ENACTMENT FROM LEGISLATIVE HISTORY IS MERELY TO INVOLVE THE COURT IN
POLITICAL CONTROVERSIES WHICH ARE QUITE PROPER IN THE ENACTMENT OF A
BILL BUT SHOULD HAVE NO PLACE IN ITS INTERPRETATION. 

MOREOVER, THERE ARE PRACTICAL REASONS WHY WE SHOULD ACCEPT WHENEVER
POSSIBLE THE MEANING WHICH AN ENACTMENT REVEALS ON ITS FACE.  LAWS ARE
INTENDED FOR ALL OF OUR PEOPLE TO LIVE BY; AND THE PEOPLE GO TO LAW
OFFICES TO LEARN WHAT THEIR RIGHTS UNDER THOSE LAWS ARE.  HERE IS A
CONTROVERSY WHICH AFFECTS EVERY LITTLE MERCHANT IN MANY STATES.  ASIDE
FROM A FEW OFFICES IN THE LARGER CITIES, THE MATERIALS OF LEGISLATIVE
HISTORY ARE NOT AVAILABLE TO THE LAWYER WHO CAN AFFORD NEITHER THE COST
OF ACQUISITION, THE COST OF HOUSING, OR THE COST OF REPEATEDLY
EXAMINING THE WHOLE CONGRESSIONAL HISTORY.  MOREOVER, IF HE COULD, HE
WOULD NOT KNOW ANY WAY OF ANTICIPATING WHAT WOULD IMPRESS ENOUGH
MEMBERS OF THE COURT TO BE CONTROLLING.  TO ACCEPT LEGISLATIVE DEBATES
TO MODIFY STATUTORY PROVISIONS IS TO MAKE THE LAW INACCESSIBLE TO A
LARGE PART OF THE COUNTRY. 

BY AND LARGE, I THINK OUR FUNCTION WAS WELL STATED BY MR. JUSTICE
HOLMES:  "WE DO NOT INQUIRE WHAT THE LEGISLATURE MEANT; WE ASK ONLY
WHAT THE STATUTE MEANS."  HOLMES, COLLECTED LEGAL PAPERS, 207.  SEE
ALSO SOON HING V. CROWLEY, 113 U.S. 703, 710-711.  AND I CAN THINK OF
NO BETTER EXAMPLE OF LEGISLATIVE HISTORY THAT IS UNEDIFYING AND
UNILLUMINATING THAN THAT OF THE ACT BEFORE US. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

IN 1890, CONGRESS PASSED THE SHERMAN LAW, WHICH DECLARED ILLEGAL
"(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."  ACT OF JULY 2, 1890, SEC. 1, 26 STAT. 209,
15 U.S.C. SEC. 1.  IN 1937, CONGRESS PASSED THE MILLER-TYDINGS
AMENDMENT.  THIS EXCEPTED FROM THE SHERMAN LAW "CONTRACTS OR
AGREEMENTS" PRESCRIBING MINIMUM PRICES FOR THE RESALE OF TRADE-MARKED
COMMODITIES WHERE SUCH CONTRACTS OR AGREEMENTS WERE VALID UNDER STATE
STATUTE OR POLICY.  ACT OF AUG. 17, 1937, TITLE VIII, 50 STAT. 673,
693, 15 U.S.C. SEC. 1.  IT WOULD APPEAR THAT, INSOFAR AS THE SHERMAN
LAW MADE MAINTENANCE OF MINIMUM RESALE PRICES ILLEGAL, THE MILLER
TYDINGS AMENDMENT MADE IT LEGAL TO THE EXTENT THAT STATE LAW LEGALIZED
IT.  "CONTRACTS OR AGREEMENTS" IMMUNIZED BY THE MILLER-TYDINGS
AMENDMENT SURELY CANNOT HAVE A NARROWER SCOPE THAN "CONTRACT,
COMBINATION  ... OR CONSPIRACY" IN THE SHERMAN LAW.  THE MILLER-TYDINGS
AMENDMENT IS AN AMENDMENT TO SEC. 1 OF THE SHERMAN LAW.  THE CATEGORY
OF CONTRACT CANNOT BE GIVEN DIFFERENT CONTENT IN THE VERY SAME SECTION
OF THE SAME ACT, AND EVERY COMBINATION OR CONSPIRACY IMPLIES AN
AGREEMENT. 

THE SETTING OF THE MILLER-TYDINGS AMENDMENT AND ITS LEGISLATIVE
HISTORY REMOVE ANY LINGERING DOUBTS.  THE DEPRESSION FOLLOWING 1929
GAVE IMPETUS TO THE MOVEMENT FOR LEGISLATION WHICH WOULD ALLOW THE
FIXING OF MINIMUM RESALE PRICES.  IN 1931, CALIFORNIA PASSED A STATUTE
ALLOWING A MANUFACTURER TO ESTABLISH RESALE PRICES BINDING ONLY UPON
RETAILERS WHO VOLUNTARILY ENTERED INTO A CONTRACT WITH HIM.  THIS
PROVED COMPLETELY INEFFECTIVE, AND IN 1933 CALIFORNIA AMENDED HER
STATUTE TO PROVIDE THAT SUCH A CONTRACT ESTABLISHED A MINIMUM PRICE
BINDING UPON ANY PERSON WHO HAD NOTICE OF THE CONTRACT.  GRETHER,
EXPERIENCE IN CALIFORNIA WITH FAIR TRADE LEGISLATION RESTRICTING PRICE
CUTTING, 24 CALIF. L. REV. 640, 644(1936).  THIS AMENDMENT WAS THE SO
CALLED "NON-SIGNER" CLAUSE WHICH, IN EFFECT, ALLOWED A MANUFACTURER OR
WHOLESALER TO FIX A MINIMUM RESALE PRICE FOR HIS PRODUCT.  EVERY "FAIR
TRADE" LAW THEREAFTER PASSED BY ANY STATE CONTAINED THIS "NONSIGNER"
CLAUSE.  BY THE CLOSE OF 1936, 14 STATES HAD PASSED SUCH LAWS.  IN
1937, 28 MORE STATES PASSED THEM.  TODAY, 45 OUT OF 48 STATES HAVE
"FAIR TRADE" LAWS.  SEE REPORT OF THE FEDERAL TRADE COMMISSION ON
RESALE PRICE MAINTENANCE XXVII (DEC. 13, 1945). 

A SUBSTANTIAL OBSTACLE REMAINED IN THE PATH OF THE "FAIR TRADE"
MOVEMENT.  IN 1911, WE HAD DECIDED DR. MILES MEDICAL CO. V. PARK & SONS
CO., 220 U.S. 373.  THERE, IN A SUIT BROUGHT AGAINST A "NON-SIGNER," WE
HELD THAT AN AGREEMENT TO MAINTAIN RESALE PRICES WAS A "CONTRACT  ...
IN RESTRAINT OF TRADE" WHICH WAS CONTRARY TO THE SHERMAN LAW.  TO
REMOVE THIS BLOCK, THE MILLER-TYDINGS AMENDMENT WAS ENACTED.  IT IS
SAID, HOWEVER, THAT THEREBY CONGRESS MEANT ONLY TO REMOVE THE BAR OF
THE SHERMAN LAW FROM AGREEMENTS BETWEEN THE MANUFACTURER AND RETAILER,
THAT CONGRESS DID NOT MEAN TO MAKE VALID THE "NON-SIGNER" CLAUSE WHICH
FORMED AN INTEGRAL PART OF EACH OF THE 42 STATE STATUTES IN EFFECT WHEN
THE AMENDMENT WAS PASSED. 

THE MILLER-TYDINGS AMENDMENT WAS PASSED AS A RIDER TO A REVENUE BILL
FOR THE DISTRICT OF COLUMBIA.  THE SENATE COMMITTEE WHICH ATTACHED THE
RIDER REFERRED THE SENATE TO S. REP. NO. 2053, 74TH CONG., 2D SESS.
FN1  THE HOUSE CONFERENCE REPORT (H.R. REP. NO. 1413, 75TH CONG., 1ST
SESS.), CONTAINS ONLY FIVE LINES CONCERNING THE RIDER.  BUT THE RIDER
WAS NOT A NEW MEASURE.  IT CAME AS NO SURPRISE TO THE HOUSE, WHICH
ALREADY HAD BEFORE IT PRACTICALLY THE SAME LANGUAGE IN THE MILLER BILL,
REPORTED FAVORABLY BY THE COMMITTEE ON THE JUDICIARY.  H.R. REP. NO.
382, 75TH CONG., 1ST SESS.  BOTH THE HOUSE AND SENATE, THEREFORE, HAD
BEFORE THEM REPORTS DEALING WITH THE SUBSTANCE OF THE MILLER-TYDINGS
AMENDMENT.  THESE REPORTS SPEAK FOR THEMSELVES, AND I ATTACH THEM AS
APPENDICES TO THIS OPINION, POST, P. 402.  EVERY STATE ACT REFERRED TO
IN THESE REPORTS CONTAINED A "NONSIGNER" PROVISION.  I CANNOT SEE HOW,
IN VIEW OF THESE REPORTS, WE CAN CONCLUDE THAT CONGRESS MEANT THE
"NONSIGNER" PROVISIONS TO BE INVALID UNDER THE SHERMAN LAW - UNLESS,
THAT IS, WE ARE TO DEPART FROM THE RESPECT WE HAVE ACCORDED
AUTHORITATIVE LEGISLATIVE HISTORY IN SCORES OF CASES DURING THE LAST
DECADE.  SEE CASES COLLECTED IN COMMISSIONER V. ESTATE OF CHURCH, 335
U.S. 632, 687, APPENDIX A. IN MANY OF THESE CASES THE PURPOSE OF
CONGRESS WAS FAR LESS CLEARLY REVEALED THAN HERE.  FN2  IT HAS NEVER
BEEN QUESTIONED IN THIS COURT THAT COMMITTEE REPORTS, AS WELL AS
STATEMENTS BY THOSE IN CHARGE OF A BILL OR OF A REPORT, ARE
AUTHORITATIVE ELUCIDATIONS OF THE SCOPE OF A MEASURE. 

IT IS SUGGESTED THAT WE GO TO THE WORDS OF THE SPONSORS OF THE MILLER
TYDINGS AMENDMENT.  WE HAVE DONE SO.  THEIR WORDS CONFIRM THE PLAIN
MEANING OF THE WORDS OF THE STATUTE AND OF THE CONGRESSIONAL REPORTS. 
SENATOR TYDINGS MADE THE FOLLOWING STATEMENT:  "WHAT WE HAVE ATTEMPTED
TO DO IS WHAT 42 STATES HAVE ALREADY WRITTEN ON THEIR STATUTE BOOKS. 
IT IS SIMPLY TO BACK UP THOSE ACTS, THAT IS ALL; TO HAVE A CODE OF FAIR
TRADE PRACTICES WRITTEN NOT BY A NATIONAL BOARD SUCH AS THE N.R.A. BUT
BY EACH STATE, SO THAT THE PEOPLE MAY GO TO THE STATE LEGISLATURE AND
CORRECT IMMEDIATELY ANY ABUSES THAT MAY DEVELOP."  81 CONG. REC. 7496. 

REPRESENTATIVE DIRKSEN MADE A STATEMENT TO THE HOUSE AS A MEMBER OF
ITS CONFERENCE COMMITTEE.  HE REFERRED TO THE CASE OF OLD DEARBORN CO.
V. SEAGRAM CORP., 299 U.S. 183, IN WHICH THIS COURT HAD HELD THAT THE
"NONSIGNER" PROVISION OF THE ILLINOIS "FAIR TRADE" STATUTE DID NOT
VIOLATE THE DUE PROCESS CLAUSE.  MR. DIRKSEN CONTINUED:  "A QUESTION
THEN AROSE AS TO WHETHER OR NOT THE MAINTENANCE OF SUCH RESALE PRICES
UNDER A STATE FAIR TRADE ACT MIGHT NOT BE IN VIOLATION OF THE SHERMAN
ANTI-TRUST LAW OF 1890 INSOFAR AS THESE TRANSACTIONS SPRANG FROM A
CONTRACT IN INTERSTATE COMMERCE.  THIS QUESTION WAS PRESENTED TO THE
HOUSE JUDICIARY COMMITTEE AND THERE DETERMINED BY THE REPORTING OF THE
MILLER BILL.  IT WAS ESSENTIALLY NOTHING MORE THAN AN ENABLING ACT
WHICH PLACED THE STAMP OF APPROVAL UPON PRICE MAINTENANCE TRANSACTIONS
UNDER STATE ACTS, NOTWITHSTANDING THE SHERMAN ACT OF 1890."  81 CONG.
REC. 8138. 

EVERY ONE OF THE 42 STATE ACTS WHICH THE MILLER-TYDINGS AMENDMENT WAS
TO "BACK UP" - THE ACTS ON WHICH THE MILLER-TYDINGS AMENDMENT WAS TO
PLACE A "STAMP OF APPROVAL" - CONTAINED A "NON-SIGNER" PROVISION.  AS
DEMONSTRATED BY EXPERIENCE IN CALIFORNIA, THE STATE ACTS WOULD HAVE
BEEN FUTILE WITHOUT THE "NON-SIGNER" CLAUSE.  THE COURT NOW HOLDS THAT
THE MILLER-TYDINGS AMENDMENT DOES NOT COVER THESE "NON-SIGNER"
PROVISIONS.  NOT ONLY IS THE VIEW OF THE COURT CONTRARY TO THE WORDS OF
THE STATUTE AND TO THE LEGISLATIVE HISTORY.  IT IS ALSO IN CONFLICT
WITH THE INTERPRETATION GIVEN THE MILLER-TYDINGS AMENDMENT BY THE
FEDERAL TRADE COMMISSION,  FN3  BY THE DEPARTMENT OF JUSTICE, FN4  AND
BY PRACTICALLY ALL PERSONS ADVERSELY AFFECTED BY THE "FAIR TRADE"
LAWS.  FN5  THE "FAIR TRADE" LAWS MAY WELL BE UNSOUND AS A MATTER OF
ECONOMICS.  PERHAPS CONGRESS SHOULD NOT PASS AN IMPORTANT MEASURE
DEALING WITH AN EXTRANEOUS SUBJECT AS A RIDER TO A REVENUE BILL, WITH
THE COERCIVE INFLUENCE IT EXERTS IN AVOIDING A VETO; PERHAPS IT SHOULD
RESTRICT LEGISLATION TO A SINGLE RELEVANT SUBJECT, AS REQUIRED BY THE
CONSTITUTIONS OF THREE-FOURTHS OF THE STATES.  THESE ARE MATTERS BEYOND
THE COURT'S CONCERN.  WHERE BOTH THE WORDS OF A STATUTE AND ITS
LEGISLATIVE HISTORY CLEARLY INDICATE THE PURPOSE OF CONGRESS, IT SHOULD
BE RESPECTED.  WE SHOULD NOT SUBSTITUTE OUR OWN NOTION OF WHAT CONGRESS
SHOULD HAVE DONE. 

           APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER. 

              HOUSE REPORT NO. 382, 75TH CONG., 1ST SESS. 

THE COMMITTEE ON THE JUDICIARY, TO WHOM WAS REFERRED THE BILL (H.R.
1611) TO AMEND THE ACT ENTITLED "AN ACT TO PROTECT TRADE AND COMMERCE
AGAINST UNLAWFUL RESTRAINTS AND MONOPOLIES," APPROVED JULY 2, 1890,
AFTER CONSIDERATION, REPORT THE SAME FAVORABLY TO THE HOUSE WITH AN
AMENDMENT WITH THE RECOMMENDATION THAT AS AMENDED THE BILL DO PASS. 

THE COMMITTEE AMENDMENT IS AS FOLLOWS:  STRIKE OUT ALL AFTER THE
ENACTING CLAUSE AND INSERT IN LIEU THEREOF THE FOLLOWING: 

THAT SECTION 1 OF THE ACT ENTITLED "AN ACT TO PROTECT TRADE AND
COMMERCE AGAINST UNLAWFUL RESTRAINTS AND MONOPOLIES," APPROVED JULY 2,
1890(U.S. CODE, TITLE 15, SEC. 1), BE AMENDED TO READ AS FOLLOWS: 

"SECTION 1.  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 HEREBY DECLARED TO BE
ILLEGAL.  EVERY PERSON WHO SHALL MAKE ANY SUCH CONTRACT OR ENGAGE IN
ANY SUCH COMBINATION OR CONSPIRACY, SHALL BE DEEMED GUILTY OF A
MISDEMEANOR, AND, ON CONVICTION THEREOF, SHALL BE PUNISHED BY FINE NOT
EXCEEDING $5,000, OR BY IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY BOTH
SAID PUNISHMENTS, IN THE DISCRETION OF THE COURT.  NOTHING HEREIN
CONTAINED SHALL RENDER ILLEGAL, CONTRACTS OR AGREEMENTS PRESCRIBING
MINIMUM PRICES OR OTHER CONDITIONS FOR THE RESALE OF A COMMODITY WHICH
BEARS, OR THE LABEL OR CONTAINER OF WHICH BEARS, THE TRADE MARK, BRAND,
OR NAME OF THE PRODUCER OR DISTRIBUTOR OF SUCH COMMODITY AND WHICH IS
IN FREE AND OPEN COMPETITION WITH COMMODITIES OF THE SAME GENERAL CLASS
PRODUCED OR DISTRIBUTED BY OTHERS, WHEN SUCH CONTRACTS OR AGREEMENTS
ARE LAWFUL AS APPLIED TO INTRASTATE TRANSACTIONS, UNDER ANY STATUTE,
LAW, OR PUBLIC POLICY NOW OR HEREAFTER IN EFFECT IN ANY STATE,
TERRITORY, OR THE DISTRICT OF COLUMBIA IN WHICH SUCH RESALE IS MADE, OR
TO WHICH THE COMMODITY IS TO BE TRANSPORTED FOR SUCH RESALE, AND THE
MAKING OF SUCH CONTRACTS OR AGREEMENTS SHALL NOT BE AN UNFAIR METHOD OF
COMPETITION UNDER SECTION 5, AS AMENDED AND SUPPLEMENTED, OF THE ACT
ENTITLED 'AN ACT TO CREATE A FEDERAL TRADE COMMISSION, TO DEFINE ITS
POWERS AND DUTIES, AND FOR OTHER PURPOSES,' APPROVED SEPTEMBER 26,
1914(U.S. CODE, TITLE 15, SEC. 45)." 

GENERAL STATEMENT 

THE SOLE OBJECTIVE OF THIS PROPOSED LEGISLATION IS TO PERMIT THE
PUBLIC POLICY OF STATES HAVING "FAIR TRADE ACTS" TO OPERATE WITH
RESPECT TO INTERSTATE CONTRACTS FOR THE RESALE OF GOODS WITHIN THOSE
STATES.  THE FAIR-TRADE ACTS REFERRED TO LEGALIZE THE MAINTENANCE, BY
CONTRACT, OF RESALE PRICES OF BRANDED OR TRADE-MARKED GOODS WHICH ARE
IN FREE COMPETITION WITH OTHER GOODS OF THE SAME GENERAL CLASS. 

TO ACCOMPLISH THIS END, THE REPORTED BILL AMENDS SECTION 1 OF THE
SHERMAN ANTITRUST ACT WHICH DECLARES EVERY CONTRACT IN RESTRAINT OF
TRADE ILLEGAL.  THE AMENDMENT ADDS A SENTENCE TO THE SECTION, IN THE
NATURE OF A LIMITATION, TO THE EFFECT, IN SUBSTANCE, THAT NOTHING
THEREIN CONTAINED SHALL RENDER ILLEGAL CONTRACTS PRESCRIBING MINIMUM
PRICES OR OTHER CONDITIONS FOR RESALE OF BRANDED OR TRADE-MARKED GOODS
WHEN SUCH CONTRACTS ARE LAWFUL AS TO INTRASTATE TRANSACTIONS UNDER THE
STATE LAW OF THE STATE IN WHICH THE RESALE IS TO BE MADE; AND THAT THE
MAKING OF SUCH CONTRACTS SHALL NOT BE AN UNFAIR METHOD OF COMPETITION
UNDER SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT. 

IN VIEW OF THE DECISION OF THE SUPREME COURT IN DR. MILES MEDICAL CO.
V. PARK & SONS CO. (220 U.S. 373), AND OTHER CASES, IT IS DOUBTFUL, AT
LEAST, THAT SUCH CONTRACTS ARE NOW VALID IN INTERSTATE COMMERCE. 

                  STATE FAIR TRADE ACTS 

STATE FAIR TRADE ACTS TYPICALLY PROVIDE, FIRST, THAT CONTRACTS MAY
LAWFULLY BE MADE WHICH PROVIDE FOR MAINTENANCE BY CONTRACT OF RESALE
PRICES OF BRANDED OR TRADE-MARKED COMPETITIVE GOODS.  SECOND, THAT
THIRD PARTIES WITH NOTICE ARE BOUND BY THE TERMS OF SUCH A CONTRACT
REGARDLESS OF WHETHER THEY ARE PARTIES TO IT. 

THE PERTINENT PROVISIONS OF THE ILLINOIS ACT, RECENTLY HELD
CONSTITUTIONAL BY THE SUPREME COURT IN THE CASE OF OLD DEARBORN
DISTRIBUTING CO. V. SEAGRAM-DISTILLERS CORPORATION (DECIDED DEC. 7,
1936) READ AS FOLLOWS: 

WHICH BEARS, OR THE LABEL OR CONTENT OF WHICH BEARS, THE TRADE MARK,
BRAND, OR NAME OF THE PRODUCER OR OWNER OF SUCH COMMODITY AND WHICH IS
IN FAIR AND OPEN COMPETITION WITH COMMODITIES OF THE SAME GENERAL CLASS
PRODUCED BY OTHERS SHALL BE DEEMED IN VIOLATION OF ANY LAW OF THE STATE
OF ILLINOIS BY REASON OF ANY OF THE FOLLOWING PROVISIONS WHICH MAY BE
CONTAINED IN SUCH CONTRACT: 

(1)  THAT THE BUYER WILL NOT RESELL SUCH COMMODITY EXCEPT AT THE
PRICE STIPULATED BY THE VENDOR. 

(2)  THAT THE PRODUCER OR VENDEE OF A COMMODITY REQUIRE UPON THE SALE
OF SUCH COMMODITY TO ANOTHER THAT SUCH PURCHASER AGREE THAT HE WILL
NOT, IN TURN, RESELL EXCEPT AT THE PRICE STIPULATED BY SUCH PRODUCER OR
VENDEE. 

SUCH PROVISIONS IN ANY CONTRACT SHALL BE DEEMED TO CONTAIN OR IMPLY
CONDITIONS THAT SUCH COMMODITY MAY BE RESOLD WITHOUT REFERENCE TO SUCH
AGREEMENT IN THE FOLLOWING CASES: 

(1)  IN CLOSING OUT THE OWNER'S STOCK FOR THE PURPOSE OF
DISCONTINUING DELIVERY OF ANY SUCH COMMODITY:  PROVIDED, HOWEVER, THAT
SUCH STOCK IS FIRST OFFERED TO THE MANUFACTURER OF SUCH STOCK AT THE
ORIGINAL INVOICE PRICE, AT LEAST TEN (10) DAYS BEFORE SUCH STOCK SHALL
BE OFFERED FOR SALE TO THE PUBLIC. 

(2)  WHEN THE GOODS ARE DAMAGED OR DETERIORATED IN QUALITY, AND
NOTICE IS GIVEN TO THE PUBLIC THEREOF. 

(3)  BY ANY OFFICER ACTING UNDER THE ORDERS OF ANY COURT. 

SEC. 2.  WILFULLY AND KNOWINGLY ADVERTISING, OFFERING FOR SALE, OR
SELLING ANY COMMODITY AT LESS THAN THE PRICE STIPULATED IN ANY CONTRACT
ENTERED INTO PURSUANT TO THE PROVISIONS OF SECTION 1 OF THIS ACT,
WHETHER THE PERSON SO ADVERTISING, OFFERING FOR SALE, OR SELLING IS OR
IS NOT A PARTY TO SUCH CONTRACT, IS UNFAIR COMPETITION AND IS
ACTIONABLE AT THE SUIT OF ANY PERSON DAMAGED THEREBY. 

THE FOLLOWING STATES, THE COMMITTEE IS ADVISED, HAVE ADOPTED FAIR
TRADE ACTS:  CALIFORNIA, WASHINGTON, OREGON, MONTANA, WYOMING, ARIZONA,
NEW MEXICO, UTAH, NORTH DAKOTA, SOUTH DAKOTA, KANSAS, LOUISIANA,
ARKANSAS, IOWA, WISCONSIN, ILLINOIS, KENTUCKY, TENNESSEE, INDIANA,
OHIO, GEORGIA, VIRGINIA, WEST VIRGINIA, PENNSYLVANIA, MARYLAND, NEW
YORK, NEW JERSEY, AND RHODE ISLAND. 

THE COMMITTEE IS ADVISED THAT IN ADDITION ONE HOUSE OF EACH OF THE
FOLLOWING STATES HAVE PASSED A FAIR TRADE BILL:  SOUTH CAROLINA, NORTH
CAROLINA, IDAHO, COLORADO, AND OKLAHOMA. 

THE COMMITTEE IS FURTHER ADVISED THAT BILLS ARE PENDING IN THE
LEGISLATURES OF NEVADA, MICHIGAN, MINNESOTA, TEXAS, MISSISSIPPI,
DELAWARE, MISSOURI, CONNECTICUT, MASSACHUSETTS, NEW HAMPSHIRE, AND
MAINE; AND THAT ONLY ONE STATE, VERMONT, HAS DEFINITELY REJECTED
LEGISLATION OF THIS CHARACTER. 

                     ECONOMIC ASPECTS 

THE ANTICIPATED ECONOMIC EFFECTS OF THE LEGISLATION HERE PROPOSED
WERE PRESENTED BOTH BY PROPONENTS AND OPPONENTS OF THE BILL IN THE
HEARINGS HELD BY THE SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY IN
CHARGE OF THE BILL.  ON THE ONE HAND IT IS URGED THAT PREDATORY PRICE
CUTTING IS A WEAPON OF MONOPOLISTIC LARGE DISTRIBUTORS TO CRUSH SMALL
BUSINESSMEN.  ON THE OTHER HAND, IT IS CONTENDED THAT PRICE-MAINTENANCE
LEGISLATION TENDS UNDULY TO ENHANCE THE PRICE OF GOODS TO THE
CONSUMER.  TO THIS ARGUMENT IT IS ANSWERED THAT THE FREE PLAY OF
COMPETITION BETWEEN PRODUCTS OF DIFFERENT MANUFACTURERS OF THE SAME
GENERAL CLASS WILL PREVENT SUCH A RESULT. 

HOWEVER, IN THE OPINION OF THE COMMITTEE, THOSE ARGUMENTS ARE MORE
PROPERLY ADDRESSED TO THE STATE LEGISLATURES CONSIDERING THE ENACTMENT
OF FAIR TRADE ACTS.  IT IS THE LEGISLATURE'S RESPONSIBILITY TO FIX THE
PUBLIC POLICY OF THE STATE.  THIS LEGISLATION MERELY SEEKS TO HELP
EFFECTUATE A PUBLIC POLICY SO FIXED IN A STATE.  IT HAS NO APPLICATION
TO ANY STATE WHICH DOES NOT SEE FIT TO ENACT A FAIR TRADE ACT. 

IN THIS CONNECTION THE COMMITTEE INVITES ATTENTION TO THE FOLLOWING
PARAGRAPH OF THE OPINION OF THE SUPREME COURT, HERETOFORE REFERRED TO,
UPHOLDING THE CONSTITUTIONALITY OF THE ILLINOIS ACT, THE COURT SPEAKING
THROUGH MR. JUSTICE SUTHERLAND: 

THERE IS A GREAT BODY OF FACT AND OPINION TENDING TO SHOW THAT PRICE
CUTTING BY RETAIL DEALERS IS NOT ONLY INJURIOUS TO THE GOODWILL AND
BUSINESS OF THE PRODUCER AND DISTRIBUTOR OF IDENTIFIED GOODS, BUT
INJURIOUS TO THE GENERAL PUBLIC AS WELL.  THE EVIDENCE TO THAT EFFECT
IS VOLUMINOUS; BUT IT WOULD SERVE NO USEFUL PURPOSE TO REVIEW THE
EVIDENCE OR TO ENLARGE FURTHER UPON THE SUBJECT.  TRUE, THERE IS
EVIDENCE, OPINION, AND ARGUMENT TO THE CONTRARY; BUT IT DOES NOT
CONCERN US TO DETERMINE WHERE THE WEIGHT LIES.  WE NEED SAY NO MORE
THAN THAT THE QUESTION MAY BE REGARDED AS FAIRLY OPEN TO DIFFERENCES OF
OPINION.  THE LEGISLATION HERE IN QUESTION PROCEEDS UPON THE FORMER AND
NOT THE LATTER VIEW; AND THE LEGISLATIVE DETERMINATION IN THAT RESPECT,
IN THE CIRCUMSTANCES HERE DISCLOSED, IS CONCLUSIVE SO FAR AS THIS COURT
IS CONCERNED.  WHERE THE QUESTION OF WHAT THE FACTS ESTABLISH IS A
FAIRLY DEBATABLE ONE WE ACCEPT AND CARRY INTO EFFECT THE OPINION OF THE
LEGISLATURE.  RADICE V. NEW YORK (264 U.S. 292, 294); ZAHN V. BOARD OF
PUBLIC WORKS (274 U.S. 325, 328, AND CASES CITED). 
EFFECTUATION OF STATE PUBLIC POLICY 

YOUR COMMITTEE RESPECTFULLY SUBMIT THAT SOUND PUBLIC POLICY ON THE
PART OF THE FEDERAL GOVERNMENT LIES IN THE DIRECTION OF LENDING
ASSISTANCE TO THE STATES TO EFFECTUATE THEIR OWN PUBLIC POLICY WITH
REGARD TO THEIR INTERNAL AFFAIRS.  IT IS SUBMITTED THAT THIS IS
ESPECIALLY TRUE WHERE SUCH ASSISTANCE, AS IN THIS INSTANCE, CONSISTS OF
REMOVING A HANDICAP RESULTING FROM THE SURRENDER OF THE POWER OVER
INTERSTATE COMMERCE BY THE STATES TO THE FEDERAL GOVERNMENT. 

     .         .         .         .         .

             SENATE REPORT NO. 2053, 74TH CONG., 2D SESS. 

THE COMMITTEE ON THE JUDICIARY, HAVING HAD UNDER CONSIDERATION THE
BILL (S. 3822) TO AMEND THE ACT ENTITLED "AN ACT TO PROTECT TRADE AND
COMMERCE AGAINST UNLAWFUL RESTRAINTS AND MONOPOLIES," APPROVED JULY 2,
1890, REPORT THE SAME BACK WITH THE RECOMMENDATION THAT THE BILL DO
PASS. 

IN 1933 A LAW WAS ENACTED BY THE STATE OF CALIFORNIA AUTHORIZING A
MANUFACTURER OR PRODUCER OF A COMMODITY WHICH BEARS HIS TRADE MARK,
BRAND, OR NAME, AND WHICH IS SOLD IN FREE AND OPEN COMPETITION WITH
COMMODITIES OF THE SAME GENERAL CLASS PRODUCED BY OTHERS, TO MAKE A
CONTRACT THAT THE PURCHASER WILL NOT RESELL SUCH COMMODITY EXCEPT AT
THE PRICE STIPULATED BY THE MANUFACTURER OR PRODUCER. 

THE PURPOSE OF THE CALIFORNIA ACT, AS EXPRESSED IN ITS TITLE, WAS TO
PROTECT TRADE-MARK OWNERS, DISTRIBUTORS, AND THE GENERAL PUBLIC AGAINST
INJURIOUS AND UNECONOMIC PRACTICES IN THE DISTRIBUTION OF ARTICLES OF
STANDARD QUALITY UNDER A TRADE MARK, BRAND, OR NAME, AND THE PARTICULAR
PRACTICE AGAINST WHICH IT WAS DIRECTED WAS THE SO-CALLED "LOSS-LEADER
SELLING." 

SINCE THE PASSAGE OF THE CALIFORNIA ACT SIMILAR LEGISLATION HAS BEEN
ENACTED IN 12 OTHER STATES, NAMELY, NEW YORK, ILLINOIS, PENNSYLVANIA,
NEW JERSEY, OREGON, WASHINGTON, WISCONSIN, IOWA, MARYLAND, OHIO,
VIRGINIA, AND RHODE ISLAND (THE LAST THREE SINCE THE INTRODUCTION OF
THE PROPOSED BILL). 

IN STILL OTHER STATES CONTRACTS STIPULATING MINIMUM RESALE PRICES ARE
VALID AT COMMON LAW. 

IN THE STATES WHERE SUCH CONTRACTS ARE LAWFUL IT HAS BEEN FOUND THAT
LOSS-LEADER SELLING OF IDENTIFIED MERCHANDISE SOLD UNDER COMPETITIVE
CONDITIONS OPERATES AS A FRAUD ON THE CONSUMER DESTROYS THE PRODUCER'S
GOODWILL IN HIS TRADE MARK, AND IS USED BY THE LARGE MERCHANT TO
ELIMINATE HIS SMALL INDEPENDENT COMPETITOR. 

IN RECOMMENDING THE PASSAGE OF S. 3822 THE COMMITTEE, WHILE FULLY
RECOGNIZING THE EVILS OF LOSS-LEADER SELLING, IS NOT REQUIRED TO
DETERMINE THE EFFECTIVENESS OF THE DEVICE ADOPTED BY THE STATES TO
ELIMINATE THE SAME. 

IT IS SUFFICIENT THAT THIS TYPE OF SELLING UNQUESTIONABLY HAS HAD A
DISASTROUS EFFECT UPON THE SMALL INDEPENDENT RETAILER, THEREBY TENDING
TO CREATE MONOPOLY, AND THAT A LARGE NUMBER OF STATES HAVE FOUND THAT
ITS EVIL EFFECTS CAN BE MITIGATED, IF NOT ELIMINATED, BY LEGALIZING
CONTRACTS STIPULATING MINIMUM RESALE PRICES. 

THE CONGRESS IS NOT CALLED UPON TO PASS UPON THE EFFECTIVENESS OF THE
REMEDY, BUT IT SHOULD NOT PUT OBSTACLES IN THE WAY OF EFFORTS OF THE
INDIVIDUAL STATES TO MAKE THE REMEDY EFFECTIVE. 

THOUGH THERE IS NO SPECIFIC ADJUDICATION ON THE SUBJECT, IT IS
BELIEVED THAT CONTRACTS STIPULATING MINIMUM RESALE PRICES, EVEN WHEN
THEY ARE MADE OR ARE TO BE PERFORMED IN A STATE WHERE SUCH CONTRACTS
ARE LAWFUL, MAY VIOLATE THE SHERMAN ACT WHENEVER THE GOODS SOLD UNDER
THE CONTRACT MOVE IN INTERSTATE COMMERCE. 

CONSEQUENTLY, MANY MANUFACTURERS NOT DOMICILED IN THE STATE OF THE
VENDEE ARE UNWILLING TO RUN THE RISK OF VIOLATING THE FEDERAL LAW, AND
THE EFFECTIVENESS OF THE STATE FAIR-TRADE LAWS IS THEREBY SERIOUSLY
IMPAIRED. 

S. 3822 REMOVES THE DOUBT AS TO THE APPLICABILITY OF THE SHERMAN ACT
BY EXPRESSLY LEGALIZING SUCH CONTRACTS WHERE LEGAL UNDER THE LAWS OF
THE STATE WHERE MADE OR WHERE THEY ARE TO BE PERFORMED. 

MOREOVER, THE PROPOSED BILL DECLARES SUCH CONTRACTS SHALL NOT BE AN
UNFAIR METHOD OF COMPETITION UNDER THE FEDERAL TRADE COMMISSION LAW. 

THE LANGUAGE OF THE BILL, IN DESCRIBING THE CLASS OF COMMODITIES TO
WHICH IT IS APPLICABLE, FOLLOWS CLOSELY THE LANGUAGE OF THE STATE ACTS,
AND THE SCOPE OF THE BILL IS THEREFORE CAREFULLY LIMITED TO COMMODITIES
"IN FREE AND OPEN COMPETITION WITH COMMODITIES OF THE SAME GENERAL
CLASS PRODUCED BY OTHERS." 

THE STATE ACTS ARE IN NO SENSE GENERAL PRICE-FIXING ACTS.  THEY
MERELY AUTHORIZE A MANUFACTURER OR PRODUCER TO ENTER INTO CONTRACTS FOR
THE MAINTENANCE OF HIS PRICE, BUT THEY DO NOT COMPEL HIM TO DO SO.  IN
OTHER WORDS, THEY ARE MERELY PERMISSIVE. 

THEY DO NOT AUTHORIZE HORIZONTAL CONTRACTS, THAT IS TO SAY, CONTRACTS
OR AGREEMENTS BETWEEN MANUFACTURERS, BETWEEN PRODUCERS, OR BETWEEN
WHOLESALERS, OR BETWEEN RETAILERS AS TO THE SALE OR RESALE PRICE OF ANY
COMMODITY. 

THEY APPLY ONLY TO COMMODITIES WHICH ARE IN FREE AND OPEN COMPETITION
WITH COMMODITIES OF THE SAME GENERAL CLASS PRODUCED BY OTHERS, AND THEY
THEREFORE DO NOT IN ANY SENSE RESTRAIN TRADE OR COMPETITION.  IN FACT,
THEY LEGALIZE A DEVICE WHICH IS INTENDED TO INCREASE COMPETITION AND
PREVENT MONOPOLY. 

BUT MOST IMPORTANT, FROM THE STANDPOINT OF THE CONGRESS, THE PROPOSED
BILL MERELY PERMITS THE INDIVIDUAL STATES TO FUNCTION, WITHOUT FEDERAL
RESTRAINT, WITHIN THEIR PROPER SPHERE, AND DOES NOT COMMIT THE CONGRESS
TO A NATIONAL POLICY ON THE SUBJECT MATTER OF THE STATE LAWS. 

IN OTHER WORDS, THE BILL DOES NO MORE THAN TO REMOVE FEDERAL
OBSTACLES TO THE ENFORCEMENT OF CONTRACTS WHICH THE STATES THEMSELVES
HAVE DECLARED LAWFUL. 

FN1  THE SENATE REPORT ON THE DISTRICT OF COLUMBIA REVENUE BILL, S.
REP. NO. 879, 75TH CONG., 1ST SESS., QUOTED S. REP. NO. 2053, 74TH
CONG., 2D SESS.  SEE S. REP. NO. 257, 75TH CONG., 1ST SESS., WHICH ALSO
QUOTES THE TEXT OF THE EARLIER REPORT. 

FN2  THE INTRICATE VERBAL ARGUMENTS USED TO SUPPORT THE COURT'S
DECISION DO NOT AFFECT THE CLARITY OF THE STATUTE AND ITS LEGISLATIVE
HISTORY.  (1) IT IS SAID THAT THE PROVISO TO THE MILLER-TYDINGS
AMENDMENT MAKES IT INAPPLICABLE TO "NON-SIGNER" CLAUSES IN STATE ACTS. 
BUT THE PROVISO ONLY MADE EXPLICIT THAT THE AMENDMENT APPLIED ONLY TO
VERTICAL AGREEMENTS AND DID NOT MAKE LEGAL HORIZONTAL AGREEMENTS, FOR
EXAMPLE, THOSE BETWEEN RETAILERS OR BETWEEN MANUFACTURERS.  SEE
STATEMENTS OF SENATOR TYDINGS, 81 CONG. REC. 7487, 7496.  THE WORDING
OF THE PROVISO, IN FACT, FOLLOWS CLOSELY A STATEMENT OF WHAT THE SENATE
COMMITTEE THOUGHT WAS IMPLICIT IN THE STATE ACTS.  SEE S. REP. NO.
2053, 74TH CONG., 2D SESS. 2.  (2) THE FACT THAT THE 1931 CALIFORNIA
STATUTE USED WORDING SIMILAR TO THE MILLER-TYDINGS AMENDMENT AND WAS
LATER AMENDED TO REFER TO NONSIGNERS IS BESIDE THE MARK.  THE WORDS OF
THE 1933 AMENDMENT TO THE CALIFORNIA STATUTE MAKE CLEAR THAT IT WAS
NOT, LIKE THE MILLER-TYDINGS AMENDMENT, DESIGNED TO REMOVE THE BAR OF
AN ANTITRUST ACT.  IT WAS ENACTED TO GIVE AN AFFIRMATIVE RIGHT TO
RECOVER FROM NONSIGNERS, SOMETHING THE MILLER-TYDINGS AMENDMENT DOES
NOT PURPORT TO DO.  IN SUCH A STATUTE SPECIFIC LANGUAGE REFERRING TO
NONSIGNERS WOULD OF COURSE HAVE TO BE USED.  (3) IT IS SAID THAT H.R.
REP. NO. 382, 75TH CONG., 1ST SESS., REFERS TO A BILL CONTAINING THE
PHRASE "OTHER CONDITIONS."  THE WORDS "OTHER CONDITIONS," WHEN USED IN
CONJUNCTION WITH A PHRASE REFERRING TO MINIMUM PRICES, COULD SCARCELY
MEAN ANYTHING EXCEPT "CONDITIONS OTHER THAN MINIMUM PRICES."  WE ARE
HERE CONCERNED WITH MINIMUM PRICES.  (4) "PERMISSIVE" WAS USED IN THE
SENATE REPORT NOT TO REFER TO RETAILERS BUT TO MANUFACTURERS.  "(THE
STATE ACTS) MERELY AUTHORIZE A MANUFACTURER OR PRODUCER TO ENTER INTO
CONTRACTS FOR THE MAINTENANCE OF HIS PRICE, BUT THEY DO NOT COMPEL HIM
TO DO SO.  IN OTHER WORDS, THEY ARE MERELY PERMISSIVE."  S. REP. NO.
2053, 74TH CONG., 2D SESS. 2. 

FN3  SEE LETTER ADDRESSED TO THE PRESIDENT BY THE CHAIRMAN OF THE
FEDERAL TRADE COMMISSION, S. DOC. NO. 58, 75TH CONG., 1ST SESS., PP. 2
3.  SEE ALSO REPORT OF THE FEDERAL TRADE COMMISSION ON RESALE PRICE
MAINTENANCE LXII (DEC. 13, 1945). 

FN4  THE DEPARTMENT OF JUSTICE APPEARS TO HAVE INSTITUTED NO
PROSECUTIONS BECAUSE OF ENFORCEMENT OF "FAIR TRADE" ACTS AGAINST
NONSIGNERS.  THE ASSISTANT ATTORNEY GENERAL WHO PLAYED AN IMPORTANT
PART IN ENFORCEMENT OF THE ANTITRUST LAWS CALLED FOR REPEAL OF THE
MILLER-TYDINGS AMENDMENT BECAUSE IT MADE LEGAL THE NONSIGNER PROVISIONS
OF THE STATE "FAIR TRADE" ACTS.  STATEMENT OF MR. THURMAN ARNOLD,
T.N.E.C. HEARINGS, PP. 18162-18165. 

FN5  THE CONTENTION THAT THE "NON-SIGNER" PROVISIONS ARE NOT WITHIN
THE MILLER-TYDINGS AMENDMENT APPEARS TO HAVE BEEN MADE IN ONLY TWO
REPORTED CASES SINCE THE AMENDMENT WAS PASSED IN 1937.  CALAMIA V.
GOLDSMITH BROS., INC., 299 N.Y. 636 AND 795, 87 N.E.2D 50 AND 687;
PEPSODENT CO. V. KRAUSS CO., 56 F.SUPP.  922.  IN BOTH, THE ARGUMENT
WAS REJECTED. 
..END :




















LABOR BOARD V. HIGHLAND PARK CO., 341 U.S. 322 


NO. 425.  ARGUED APRIL 23, 1951.  - DECIDED MAY 14, 1951.  - 184 F.2D
98, AFFIRMED. 


1.  THE CONGRESS OF INDUSTRIAL ORGANIZATIONS (C.I.O.)  IS A "NATIONAL
OR INTERNATIONAL LABOR ORGANIZATION" WITHIN THE MEANING OF SEC. 9(H) OF
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT; AND THE NATIONAL LABOR RELATIONS BOARD COULD NOT PROCEED
AGAINST AN EMPLOYER AT THE INSTANCE OF A UNION AFFILIATED WITH C.I.O.
WHEN THE OFFICERS OF C.I.O. HAD NOT FILED THE NON-COMMUNIST AFFIDAVITS
REQUIRED BY THAT SECTION, ALTHOUGH THE AFFILIATED UNION'S OWN OFFICERS
HAD FILED SUCH AFFIDAVITS.  PP. 323-325. 

2.  WHEN A COURT OF APPEALS IS PETITIONED TO DECREE ENFORCEMENT OF AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD REQUIRING AN EMPLOYER TO
BARGAIN WITH A UNION AND THE FACTS REGARDING COMPLIANCE WITH SEC. 9(H)
ARE NOT IN DISPUTE, THE EMPLOYER IS ENTITLED TO A JUDICIAL REVIEW OF
THE LEGAL QUESTION WHETHER THERE HAS BEEN COMPLIANCE WITH SEC. 9(H). 
PP. 325-326. 

NATIONAL LABOR RELATIONS BOARD V. HIGHLAND PARK MANUFACTURING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

THE COURT OF APPEALS DENIED ENFORCEMENT OF AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD REQUIRING AN EMPLOYER TO BARGAIN WITH A UNION
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS BECAUSE THE
OFFICERS OF THE LATTER HAD NOT FILED THE NON-COMMUNIST AFFIDAVITS
REQUIRED BY SEC. 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) SEC. 159(H), 184 F.2D 98.  THIS COURT GRANTED CERTIORARI.  340
U.S. 927.  AFFIRMED, P. 326. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD ENTERTAINED A COMPLAINT BY THE
TEXTILE WORKERS UNION OF AMERICA AGAINST RESPONDENT, HIGHLAND PARK
MANUFACTURING COMPANY, AND ORDERED RESPONDENT TO BARGAIN WITH THAT
UNION.  AT ALL TIMES RELEVANT TO THE PROCEEDINGS, THE TEXTILE WORKERS
UNION WAS AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS AND,
WHILE THE TEXTILE WORKERS UNION OFFICERS HAD FILED THE NON-COMMUNIST
AFFIDAVITS PURSUANT TO STATUTE, THE OFFICERS OF THE C.I.O. AT THAT TIME
HAD NOT.  THE STATUTE PROVIDES THAT "NO INVESTIGATION SHALL BE MADE BY
THE BOARD  ...  , NO PETITION UNDER SUBSECTION (E)(1) OF THIS SECTION
SHALL BE ENTERTAINED, 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 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 OR CONSTITUENT UNIT THAT HE IS NOT A MEMBER OF THE
COMMUNIST PARTY (ETC.)."  SEC. 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) SEC. 159(H).  THE ORDER WAS CHALLENGED UPON THE
GROUNDS, AMONG OTHERS, THAT THE FAILURE OF THE C.I.O. OFFICERS TO FILE
NON-COMMUNIST AFFIDAVITS DISABLED ITS AFFILIATE, THE TEXTILE WORKERS
UNION, AND THE BOARD COULD NOT ENTERTAIN THEIR COMPLAINT AND ENTER THE
ORDER. 

THE GENERAL COUNSEL OF THE BOARD HAD RULED THAT THE BOARD COULD NOT
ENTERTAIN A COMPLAINT UNDER THESE CIRCUMSTANCES; BUT THE BOARD, WITH
ONE MEMBER DISSENTING, OVERRULED HIM, FOR REASONS STATED IN MATTER OF
NORTHERN VIRGINIA BROADCASTERS, 75 N.L.R.B. 11.  THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT REACHED THE SAME CONCLUSION AS THE
BOARD IN WEST TEXAS UTILITIES CO. V. LABOR BOARD, 87 U.S. APP. D.C.
179, 184 F.2D 233.  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT IN THIS
CASE, 184 F.2D 98, AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, IN
LABOR BOARD V. POSTEX COTTON MILLS, 181 F.2D 919, ARRIVED AT A CONTRARY
RESULT, HOLDING THAT THE BOARD COULD NOT ENTERTAIN THE COMPLAINT.  THE
CONFLICTING RESULTS ARE EACH SO WELL-CONSIDERED AND SO THOROUGHLY
DOCUMENTED IN OPINIONS ALREADY APPEARING IN THE BOOKS THAT LITTLE COULD
BE ADDED TO EITHER.  WE AGRRE WITH THE CONCLUSIONS OF THE FOURTH AND
FIFTH CIRCUITS. 

THE DEFINITION OF "LABOR UNION" IN THE STATUTE CONCEDEDLY INCLUDES
THE C.I.O.  IT IS FURTHER CONCEDED THAT THE PHRASE "LABOR ORGANIZATION
NATIONAL OR INTERNATIONAL IN SCOPE" AS FOUND IN SEC. 10(C) REFERS TO
THE A.F. OF L. AND C.I.O.  BUT IT IS CLAIMED THAT WHEN THE ADJECTIVES
"NATIONAL" OR "INTERNATIONAL" ARE ALONE ADDED, THEY EXCLUDE THE C.I.O.,
BECAUSE IT IS REGARDED IN LABOR CIRCLES AS A FEDERATION RATHER THAN A
NATIONAL OR INTERNATIONAL UNION.  WE THINK, HOWEVER, THAT THE USE OF
GEOGRAPHIC TERMS TO REACH NATION-WIDE OR MORE THAN NATION-WIDE UNIONS
DOES NOT EXCLUDE THOSE OF SOME PARTICULAR TECHNICAL STRUCTURE.  THE
C.I.O., BEING ADMITTEDLY A LABOR UNION AND ONE OF NATION-WIDE
JURISDICTION, OPERATION AND INFLUENCE, IS CERTAINLY IN THE SPEECH OF
PEOPLE A NATIONAL UNION, WHATEVER ITS INTERNAL COMPOSITION.  IF
CONGRESS INTENDED GEOGRAPHIC ADJECTIVES TO HAVE A STRUCTURAL
CONNOTATION OR TO HAVE OTHER THAN THEIR ORDINARILY ACCEPTED MEANING, IT
WOULD AND SHOULD HAVE GIVEN THEM A SPECIAL MEANING BY DEFINITION. 

THE LANGUAGE IN ITS ORDINARILY ACCEPTED SENSE IS CONSISTENT WITH THE
CONTEXT AND PURPOSE OF THE ACT, WHICH WE HAVE DEFINED AT LENGTH IN
AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382.  AS THE COURTS OF
APPEALS FOR BOTH THE FOURTH AND FIFTH CIRCUITS HAVE SAID, THE
CONGRESSIONAL PURPOSE WAS TO "WHOLLY ERADICATE AND BAR FROM LEADERSHIP
IN THE AMERICAN LABOR MOVEMENT, AT EACH AND EVERY LEVEL, ADHERENTS TO
THE COMMUNIST PARTY AND BELIEVERS IN THE UNCONSTITUTIONAL OVERTHROW OF
OUR GOVERNMENT."  181 F.2D 919, 920; 184 F.2D 98, 101.  IT WOULD
REQUIRE MUCH CLEARER LANGUAGE OF EXEMPTION TO JUSTIFY HOLDING THAT THE
VERY TOP LEVELS OF INFLUENCE AND ACTUAL POWER IN THE LABOR MOVEMENT IN
THIS COUNTRY WERE UNTOUCHED WHILE ONLY THE LOWER LEVELS WERE AFFECTED. 

THE FURTHER CONTENTION IS ADVANCED BY THE BOARD THAT THE
ADMINISTRATIVE DETERMINATION THAT A PETITIONING LABOR ORGANIZATION HAS
COMPLIED WITH THE ACT IS NOT SUBJECT TO JUDICIAL REVIEW AT THE INSTANCE
OF AN EMPLOYER IN AN UNFAIR LABOR PRACTICE PROCEEDING.  IF THERE WERE
DISPUTE AS TO WHETHER THE C.I.O. HAD FILED THE REQUIRED AFFIDAVITS OR
WHETHER DOCUMENTS FILED MET THE STATUTORY REQUIREMENTS AND THE BOARD
HAD RESOLVED THAT QUESTION IN FAVOR OF THE LABOR ORGANIZATIONS, A
DIFFERENT QUESTION WOULD BE PRESENTED.  BUT HERE THERE IS NO QUESTION
OF FACT.  WHILE THE C.I.O. OFFICERS HAVE SINCE FILED THE AFFIDAVITS,
THEY WERE NOT ON FILE AT ANY TIME RELEVANT TO THIS PROCEEDING. 

IT WOULD BE STRANGE INDEED IF THE COURTS WERE COMPELLED TO ENFORCE
WITHOUT INQUIRY AN ORDER WHICH COULD ONLY RESULT FROM PROCEEDINGS THAT,
UNDER THE ADMITTED FACTS, THE BOARD WAS FORBIDDEN TO CONDUCT.  THE
BOARD IS A STATUTORY AGENCY, AND, WHEN IT IS FORBIDDEN TO INVESTIGATE
OR ENTERTAIN COMPLAINTS IN CERTAIN CIRCUMSTANCES, ITS FINAL ORDER COULD
HARDLY BE VALID.  WE THINK THE CONTENTION IS WITHOUT MERIT AND THAT AN
ISSUE OF LAW OF THIS KIND, WHICH GOES TO THE HEART OF THE VALIDITY OF
THE PROCEEDINGS ON WHICH THE ORDER IS BASED, IS OPEN TO INQUIRY BY THE
COURTS WHEN THEY ARE ASKED TO LEND THEIR ENFORCEMENT POWERS TO AN
ADMINISTRATIVE TRIBUNAL.  JUDGMENT AFFIRMED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

CONGRESS, OF COURSE, COULD HAVE EXACTED AFFIDAVITS OF NONMEMBERSHIP
IN COMMUNIST ORGANIZATIONS FROM THE OFFICERS OF ALL LOCAL UNIONS, OF
ALL NATIONALS AND INTERNATIONALS OF WHICH LOCALS ARE CONSTITUENTS, AND
OF ALL THE FEDERATED ORGANIZATIONS - I.E., THE C.I.O. AND THE A.F. OF
L. - OF WHICH NATIONAL AND INTERNATIONAL ORGANIZATIONS ARE MEMBERS.  TO
CARRY OUT SUCH A PURPOSE IT COULD HAVE BEEN EXPLICIT.  IT COULD ALSO
HAVE USED SOME COLLOQUIALLY ALL-EMBRACING TERM SUCH AS THE PHRASE
"NATIONAL OR INTERNATIONAL IN SCOPE" WHICH IT IN FACT DID EMPLOY IN
SEC. 10(C) OF THE ACT.  CONGRESS DID NOT CHOOSE TO EXPRESS ITS WILL IN
EITHER OF THESE UNEQUIVOCAL FORMS.  INSTEAD IT USED THE PHRASE
"NATIONAL OR INTERNATIONAL LABOR ORGANIZATION." 

THE FACT THAT THE PHRASE "NATIONAL OR INTERNATIONAL LABOR
ORGANIZATION" CONSISTS OF ORDINARY ENGLISH WORDS, WHICH TO THE ORDINARY
EAR MAY CARRY A MEANING DIFFERENT FROM THAT WHICH THEY CARRY IN THE
DOMAIN OF INDUSTRIAL RELATIONS, DOES NOT DESTROY OUR DUTY TO DETERMINE
WHETHER THEY DO HAVE A TECHNICAL MEANING WHEN USED IN REGARD TO MATTERS
OF INDUSTRIAL RELATIONS.  SEE THE DECISION, PER HOLMES, J., IN BOSTON
SAND CO. V. UNITED STATES, 278 U.S. 41, 48.  THE TAFT-HARTLEY ACT IS
NOT AN ABSTRACT DOCUMENT TO BE CONSTRUED WITH ONLY THE AID OF A
STANDARD DICTIONARY.  ITS SPONSORS WERE FAMILIAR WITH LABOR
ORGANIZATION AND LABOR PROBLEMS AND IT WAS DOUBTLESS DRAWN BY
SPECIALISTS IN LABOR RELATIONS.  IF THEY USED TERMS HAVING A SPECIAL
MEANING WITHIN THE FIELD, SUCH WORDS OF ART, IN THE ABSENCE OF CONTRARY
INDICATIONS, MUST BE GIVEN THAT MEANING. 

THE BEST SOURCE FOR US IN DETERMINING WHETHER A TERM USED IN THE
FIELD OF INDUSTRIAL RELATIONS HAS A TECHNICAL CONNOTATION IS THE BODY
TO WHICH CONGRESS HAS COMMITTED THE ADMINISTRATION OF THE STATUTE. 
CERTAINLY, IF THERE IS NO REASONABLE GROUND FOR REJECTING THE
DETERMINATION OF THE NATIONAL LABOR RELATIONS BOARD, ITS VIEW SHOULD
NOT BE REJECTED.  WE ARE ADVISED BY THE BOARD THAT "NATIONAL AND
INTERNATIONAL ORGANIZATION" IS A TERM OF ART REFERRING TO THE
AUTONOMOUS NATIONAL AND INTERNATIONAL ORGANIZATIONS OF WORKERS WHICH IN
FEDERATION CONSTITUTE THE C.I.O. AND THE A.F. OF L. "WE ARE FAMILIAR
WITH NO USE OF THE TERM 'NATIONAL OR INTERNATIONAL LABOR ORGANIZATION'
WHICH INCLUDES PARENT FEDERATIONS SUCH AS THE AFL OR THE CIO WITHIN ITS
MEANING.  ON THE CONTRARY, EVERY DEFINITION OR DESCRIPTION OF THE
STRUCTURE OF THESE TWO FEDERATIONS CLEARLY INDICATES THAT THE AFL AND
THE CIO ARE DIFFERENT FROM 'NATIONAL' OR 'INTERNATIONAL' LABOR
ORGANIZATIONS."  NORTHERN VIRGINIA BROADCASTERS, INC., 75 N.L.R.B. 11,
13.  NOTHING CALLED TO OUR ATTENTION HAS PUT IN QUESTION THIS
AUTHORITATIVE FINDING BY THE NATIONAL LABOR RELATIONS BOARD.  WE OUGHT
NOT, THEREFORE, TO REJECT IT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I SEE NO ANSWER TO THE ANALYSIS OF MR. JUSTICE FRANKFURTER IF
OBJECTIVITY IS OUR STANDARD AND IF THE EXPERTISE OF ADMINISTRATIVE
AGENCIES IS TO CONTINUE AS OUR GUIDE.  IN SITUATIONS NO MORE DIFFICULT
THAN THIS WE HAVE TAKEN THE ADMINISTRATIVE CONSTRUCTION OF STATUTORY
WORDS.  UNTIL TODAY THE TEST HAS BEEN NOT WHETHER THE CONSTRUCTION
WOULD BE OUR OWN IF WE SAT AS THE BOARD, BUT WHETHER IT HAS A
REASONABLE BASIS IN CUSTOM, PRACTICE, OR LEGISLATIVE HISTORY.  SEE GRAY
V. POWELL, 314 U.S. 402; LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S.
111. 

OF COURSE THE C.I.O. IS AT TIMES A "NATIONAL OR INTERNATIONAL LABOR
ORGANIZATION" WITHIN THE MEANING OF THE ACT.  THE BOARD SO HELD IN
AMERICAN OPTICAL CO., 81 N.L.R.B. 453.  IN THAT CASE THE PETITIONING
LABOR ORGANIZATION WAS AN "ORGANIZING COMMITTEE" OF THE C.I.O. OVER
WHICH THE C.I.O. HAD CONTROL COMPARABLE TO THE POWER A "NATIONAL OR
INTERNATIONAL" UNION EXERCISES OVER ITS CONSTITUENT UNIONS.  THE SAME
WOULD BE TRUE OF LOCAL UNIONS DIRECTLY CHARTERED BY THE C.I.O.  IF ONE
OF THOSE UNIONS HAD FILED THE COMPLAINT AGAINST RESPONDENT, THEN THE
C.I.O. WOULD HAVE TO FILE THE AFFIDAVITS, SINCE IT WOULD BE IN THE
RELATION OF A "NATIONAL OR INTERNATIONAL LABOR ORGANIZATION" TO THAT
DISPUTE.  A LABOR ORGANIZATION WHICH HAS THAT RELATION TO A DISPUTE HAS
THE POWER AND CONTROL AT WHICH THE AFFIDAVIT PROVISION IS AIMED.  IF WE
TOOK, AS WE CUSTOMARILY DO, THE ADMINISTRATIVE CONSTRUCTION OF THE
WORDS CONGRESS USED, WE WOULD HOLD THAT THE C.I.O. MUST FILE THE
AFFIDAVITS ONLY WHEN IN THE DISPUTE BEFORE THE BOARD IT STANDS, AS IT
SOMETIMES DOES, IN THE POSITION OF "NATIONAL OR INTERNATIONAL LABOR
ORGANIZATION" - TO USE THE PARLANCE OF THE TRADE.  BUT THAT IS A
DIFFERENT CASE FROM THE ONE BEFORE US.
..END :






















PANHANDLE CO. V. MICHIGAN COMM'N, 341 U.S. 329 


NO. 486.  ARGUED APRIL 23, 1951.  - DECIDED MAY 14, 1951.  - 328 MICH.
650, 44 N.W.2D 324, AFFIRMED. 


APPELLANT IS ENGAGED IN THE TRANSPORTATION OF NATURAL GAS BY PIPE LINE
FROM OTHER STATES INTO MICHIGAN, AND IS SUBJECT TO REGULATION BY THE
FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT.  APPELLEE GAS
COMPANY IS A MICHIGAN PUBLIC UTILITY WHICH DISTRIBUTES NATURAL GAS,
OBTAINED ENTIRELY FROM APPELLANT, TO DOMESTIC, COMMERCIAL AND
INDUSTRIAL CONSUMERS IN THE DETROIT AREA; AND A SUBSTANTIAL PORTION OF
ITS REVENUES IS DERIVED FROM SALES TO LARGE INDUSTRIAL CONSUMERS. 
APPELLANT SEEKS TO MAKE DIRECT SALES OF NATURAL GAS TO LARGE INDUSTRIAL
CONSUMERS IN MICHIGAN, AND IN ITS OPERATIONS WOULD USE STREETS AND
ALLEYS IN THE DETROIT AREA.  HELD:  AN ORDER OF THE MICHIGAN PUBLIC
SERVICE COMMISSION REQUIRING APPELLANT TO OBTAIN FROM THAT COMMISSION A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY BEFORE SELLING NATURAL
GAS DIRECT TO INDUSTRIAL CONSUMERS IN A MUNICIPALITY ALREADY SERVED BY
A PUBLIC UTILITY IS NOT IN CONFLICT WITH THE NATURAL GAS ACT OR THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 330-337. 

(A)  THE SALE TO INDUSTRIAL CONSUMERS AS PROPOSED BY APPELLANT IS
CLEARLY INTERSTATE COMMERCE, BUT THE SALE AND DISTRIBUTION OF GAS TO
LOCAL CONSUMERS BY ONE ENGAGED IN INTERSTATE COMMERCE IS "ESSENTIALLY
LOCAL" IN ASPECT AND IS SUBJECT TO STATE REGULATION.  P. 333. 

(B)  THE NATURAL GAS ACT APPLIES ONLY TO SUCH SALES OF GAS IN
INTERSTATE COMMERCE AS ARE FOR RESALE, AND DOES NOT APPLY TO SALES MADE
DIRECT TO CONSUMERS, THE LATTER BEING LEFT TO STATE REGULATION.  P.
334. 

(C)  THERE ARE IN THIS CASE NO CONFLICTING CLAIMS BETWEEN STATE AND
FEDERAL REGULATION.  P. 336. 

(D)  TO REQUIRE APPELLANT TO SECURE A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY BEFORE IT MAY ENTER A MUNICIPALITY ALREADY
SERVED BY A PUBLIC UTILITY IS REGULATION, NOT ABSOLUTE PROHIBITION. 
HOOD & SONS V. DU MOND, 336 U.S. 525, DISTINGUISHED.  PP. 336-337. 

PANHANDLE EASTERN PIPE LINE CO. V. MICHIGAN PUBLIC SERVICE COMMISSION
ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

A CEASE-AND-DESIST ORDER ISSUED AGAINST APPELLANT BY THE MICHIGAN
PUBLIC SERVICE COMMISSION WAS AFFIRMED BY THE STATE SUPREME COURT.  328
MICH. 650, 44 N.W.2D 324.  ON APPEAL TO THIS COURT, AFFIRMED, P. 337. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE AFFIRMANCE OF AN ORDER OF THE MICHIGAN
PUBLIC SERVICE COMMISSION REQUIRING APPELLANT TO OBTAIN A CERTIFICATE
OF PUBLIC CONVENIENCE AND NECESSITY BEFORE SELLING NATURAL GAS DIRECT
TO INDUSTRIAL CONSUMERS IN A MUNICIPALITY ALREADY SERVED BY A PUBLIC
UTILITY. 

APPELLANT IS ENGAGED IN THE TRANSPORTATION OF NATURAL GAS BY PIPE
LINE FROM FIELDS IN TEXAS, OKLAHOMA AND KANSAS INTO AREAS WHICH INCLUDE
THE STATE OF MICHIGAN.  APPELLANT IS A "NATURAL-GAS COMPANY" WITHIN THE
COVERAGE OF THE NATURAL GAS ACT, 52 STAT. 821, 15 U.S.C. SECS. 717 ET
SEQ., AND SUBJECT THEREUNDER TO REGULATION BY THE FEDERAL POWER
COMMISSION.  APPELLEE MICHIGAN CONSOLIDATED GAS COMPANY IS A PUBLIC
UTILITY OF MICHIGAN WHICH UNDER APPROPRIATE AUTHORIZATION DISTRIBUTES
GAS TO DOMESTIC, COMMERCIAL AND INDUSTRIAL CONSUMERS IN AND AROUND
DETROIT.  CONSOLIDATED OBTAINS ITS ENTIRE SUPPLY OF NATURAL GAS FOR
DISTRIBUTION IN THE DETROIT DISTRICT FROM APPELLANT. 

IN 1945 APPELLANT PUBLICLY ANNOUNCED A PROGRAM OF SECURING LARGE
INDUSTRIAL CUSTOMERS FOR THE DIRECT SALE OF NATURAL GAS IN MICHIGAN. 
IN DETROIT IT OFFERED TO PAY THE CITY FOR THE RIGHT TO LAY AND OPERATE
ITS PIPE LINE ALONG THE STREETS AND ALLEYS DIRECTLY TO LARGE INDUSTRIAL
CUSTOMERS.  IN OCTOBER OF THAT YEAR APPELLANT SUCCEEDED IN SECURING A
LARGE DIRECT-SALE CONTRACT WITH THE FORD MOTOR COMPANY FOR GAS AT ITS
DEARBORN PLANT, LOCATED IN THE DETROIT DISTRICT.  FORD WAS ALREADY
PURCHASING SUBSTANTIAL QUANTITIES OF GAS FOR INDUSTRIAL USE AT THE
DEARBORN PLANT FROM CONSOLIDATED. 

BELIEVING ITS INTERESTS AND THOSE OF ITS CUSTOMERS WERE PREJUDICED BY
APPELLANT'S PROGRAM, PARTICULARLY THE FORD CONTRACT, CONSOLIDATED FILED
A COMPLAINT WITH THE MICHIGAN PUBLIC SERVICE COMMISSION.  APPELLANT
APPEARED TO CONTEST THE JURISDICTION OF THE COMMISSION OVER SUCH
SALES.  AFTER HEARING, THE COMMISSION ORDERED APPELLANT TO - 

"CEASE AND DESIST FROM MAKING DIRECT SALES AND DELIVERIES OF NATURAL
GAS TO INDUSTRIES WITHIN THE STATE OF MICHIGAN, LOCATED WITHIN
MUNICIPALITIES ALREADY BEING SERVED BY A PUBLIC UTILITY, UNTIL SUCH
TIME AS IT SHALL HAVE FIRST OBTAINED A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY FROM THIS COMMISSION TO PERFORM SUCH
SERVICES."  FN1  APPELLANT OBTAINED AN INJUNCTION AGAINST THE ORDER OF
THE COMMISSION IN THE CIRCUIT COURT OF INGHAM COUNTY, MICHIGAN.  THE
CIRCUIT COURT HELD THAT THE ORDER WAS A PROHIBITION OF INTERSTATE
COMMERCE AND THEREFORE INVALID.  THE SUPREME COURT OF MICHIGAN, THREE
JUDGES DISSENTING, REVERSED THE CIRCUIT COURT AND AFFIRMED THE
COMMISSION'S ORDER.  328 MICH. 650, 44 N.W.2D 324.  THAT COURT REJECTED
THE ARGUMENT THAT THE ORDER OF THE COMMISSION WAS AN ABSOLUTE DENIAL OF
THE RIGHT OF APPELLANT TO SELL NATURAL GAS IN MICHIGAN DIRECT TO
CONSUMERS.  SINCE APPELLANT WAS FREE TO MAKE APPLICATION TO THE
MICHIGAN COMMISSION FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY AS TO SUCH SALES, THE ORDER WAS CONSTRUED AS DENYING THE
RIGHT OF APPELLANT TO SELL DIRECT WITHOUT FIRST OBTAINING SUCH
CERTIFICATE.  THE COURT HELD THIS REQUIREMENT TO BE WITHIN THE STATE'S
REGULATORY AUTHORITY DESPITE THE INTERSTATE CHARACTER OF THE SALES. 
THIS APPEAL CHALLENGES THE CORRECTNESS OF THAT DECISION. 

THE SALE TO INDUSTRIAL CONSUMERS AS PROPOSED BY APPELLANT IS CLEARLY
INTERSTATE COMMERCE.  PANHANDLE PIPE LINE CO. V. PUBLIC SERVICE COMM'N
OF INDIANA, 332 U.S. 507, 513; PENNSYLVANIA GAS CO. V. COMMISSION, 252
U.S. 23, 28.  BUT THE SALE AND DISTRIBUTION OF GAS TO LOCAL CONSUMERS
MADE BY ONE ENGAGED IN INTERSTATE COMMERCE IS "ESSENTIALLY LOCAL" IN
ASPECT AND IS SUBJECT TO STATE REGULATION WITHOUT INFRINGEMENT OF THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  IN THE ABSENCE OF FEDERAL
REGULATION, STATE REGULATION IS REQUIRED IN THE PUBLIC INTEREST. 
PENNSYLVANIA GAS CO. V. COMMISSION, SUPRA, AT 31.  SEE ALSO OPINION OF
CARDOZO, J., IN PENNSYLVANIA GAS CO. V. COMMISSION, 225 N.Y. 397, 122
N.E. 260.  THESE PRINCIPLES APPLY TO DIRECT SALES FOR INDUSTRIAL
CONSUMPTION AS WELL AS TO SALES FOR DOMESTIC AND COMMERCIAL USES. 
PANHANDLE-INDIANA, SUPRA, AT 514, 519-520. 

THE FACTS IN THE INSTANT CASE SHOW THAT THE PROPOSED SALES ARE
PRIMARILY OF LOCAL INTEREST.  THEY EMPHASIZE THE NEED FOR LOCAL
REGULATION AND THE WISDOM OF THE PRINCIPLES JUST DISCUSSED.  TO
ACCOMMODATE ITS OPERATIONS, APPELLANT PROPOSES TO USE THE STREETS AND
ALLEYS OF DETROIT AND ENVIRONS.  A LOCAL UTILITY ALREADY OPERATING IN
THE SAME AREA, CONSOLIDATED, RECEIVES ITS ENTIRE SUPPLY OF NATURAL GAS
FROM APPELLANT.  A SUBSTANTIAL PORTION OF CONSOLIDATED'S REVENUES IS
DERIVED FROM SALES TO LARGE INDUSTRIAL CONSUMERS.  APPELLANT IGNORED
REQUESTS OF CONSOLIDATED FOR ADDITIONAL GAS TO MEET THE INCREASED WANTS
OF ITS INDUSTRIAL CUSTOMERS.  INSTEAD OF ATTEMPTING TO MEET INCREASED
NEEDS THROUGH CONSOLIDATED, APPELLANT LAUNCHED A PROGRAM TO SECURE FOR
ITSELF LARGE INDUSTRIAL ACCOUNTS FROM CUSTOMERS, SOME OF WHOM WERE
ALREADY BEING SERVED BY CONSOLIDATED.  IN CONNECTION WITH THE FORD
MOTOR COMPANY, IT IS NOTEWORTHY THAT THE TAP LINE BY WHICH APPELLANT
PROPOSED TO SERVE FORD DIRECTLY WOULD BE SUBSTANTIALLY PARALLEL TO AND
ONLY A SHORT DISTANCE FROM THE EXISTING TAP LINE BY WHICH CONSOLIDATED
NOW SERVES FORD. 

THUS, NOT ONLY WOULD THERE BE TWO UTILITIES USING LOCAL FACILITIES TO
ACCOMMODATE THEIR DISTRIBUTION SYSTEMS, BUT THEY WOULD BE SEEKING TO
SERVE THE SAME INDUSTRIAL CONSUMERS.  APPELLANT ASSERTS A RIGHT TO
COMPETE FOR THE CREAM OF THE VOLUME BUSINESS WITHOUT REGARD TO THE
LOCAL PUBLIC CONVENIENCE OR NECESSITY.  WERE APPELLANT SUCCESSFUL IN
THIS VENTURE, IT WOULD NO DOUBT BE REFLECTED ADVERSELY IN
CONSOLIDATED'S OVER-ALL COSTS OF SERVICE AND ITS RATES TO CUSTOMERS
WHOSE ONLY SOURCE OF SUPPLY IS CONSOLIDATED.  THIS CLEARLY PRESENTS A
SITUATION OF "ESSENTIALLY LOCAL" CONCERN AND OF VITAL INTEREST TO THE
STATE OF MICHIGAN. 

OF COURSE, WHEN CONGRESS ACTS IN THIS FIELD IT IS SUPREME.  IT HAS
ACTED.  SECTION 1(B) OF THE NATURAL GAS ACT, SUPRA, PROVIDES AS
FOLLOWS: 

"THE PROVISIONS OF THIS ACT SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

BY THIS ACT CONGRESS OCCUPIED ONLY A PART OF THE FIELD.  AS TO SALES,
ONLY THE SALE OF GAS IN INTERSTATE COMMERCE FOR RESALE WAS COVERED. 
DIRECT SALES FOR CONSUMPTIVE USE WERE DESIGNEDLY LEFT TO STATE
REGULATION.  PANHANDLE-INDIANA, 332 U.S. AT 516-518.  SPEAKING FURTHER
OF THE DIVISION OF REGULATORY AUTHORITY OVER INTERSTATE COMMERCE IN
NATURAL GAS, THIS COURT SAID IN THE SAME CASE: 

"IT WOULD BE AN EXCEEDINGLY INCONGRUOUS RESULT IF A STATUTE SO
MOTIVATED, DESIGNED AND SHAPED TO BRING ABOUT MORE EFFECTIVE
REGULATION, AND PARTICULARLY MORE EFFECTIVE STATE REGULATION, WERE
CONSTRUED IN THE TEETH OF THOSE OBJECTS, AND THE IMPORT OF ITS WORDING
AS WELL, TO CUT DOWN REGULATORY POWER AND TO DO SO IN A MANNER MAKING
THE STATES LESS CAPABLE OF REGULATION THAN BEFORE THE STATUTE'S
ADOPTION.  YET THIS, IN EFFECT, IS WHAT APPELLANT ASKS US TO DO.  FOR
THE ESSENCE OF ITS POSITION, APART FROM STANDING DIRECTLY ON THE
COMMERCE CLAUSE, IS THAT CONGRESS BY ENACTING THE NATURAL GAS ACT HAS
'OCCUPIED THE FIELD,' I.E., THE ENTIRE FIELD OPEN TO FEDERAL
REGULATION, AND THUS HAS RELIEVED ITS DIRECT INDUSTRIAL SALES OF ANY
SUBORDINATION TO STATE CONTROL. 

"THE EXACT OPPOSITE IS THE FACT.  CONGRESS, IT IS TRUE, OCCUPIED A
FIELD.  BUT IT WAS METICULOUS TO TAKE IN ONLY TERRITORY WHICH THIS
COURT HAD HELD THE STATES COULD NOT REACH.  THAT AREA DID NOT INCLUDE
DIRECT CONSUMER SALES, WHETHER FOR INDUSTRIAL OR OTHER USES.  THOSE
SALES HAD BEEN REGULATED BY THE STATES AND THE REGULATION HAD BEEN
REPEATEDLY SUSTAINED.  IN NO INSTANCE REACHING THIS COURT HAD IT BEEN
STRICKEN DOWN. 

     .         .         .         .         . 

"THE NATURAL GAS ACT CREATED AN ARTICULATE LEGISLATIVE PROGRAM BASED
ON A CLEAR RECOGNITION OF THE RESPECTIVE RESPONSIBILITIES OF THE
FEDERAL AND STATE REGULATORY AGENCIES.  IT DOES NOT CONTEMPLATE
INEFFECTIVE REGULATION AT EITHER LEVEL.  WE HAVE EMPHASIZED REPEATEDLY
THAT CONGRESS MEANT TO CREATE A COMPREHENSIVE AND EFFECTIVE REGULATORY
SCHEME, COMPLEMENTARY IN ITS OPERATION TO THOSE OF THE STATES AND IN NO
MANNER USURPING THEIR AUTHORITY.  ...  AND, AS WAS POINTED OUT IN POWER
COMM'N V. HOPE GAS CO., (320 U.S. 591) AT 610, 'THE PRIMARY AIM OF THIS
LEGISLATION WAS TO PROTECT CONSUMERS AGAINST EXPLOITATION AT THE HANDS
OF NATURAL GAS COMPANIES.'  THE SCHEME WAS ONE OF COOPERATIVE ACTION
BETWEEN FEDERAL AND STATE AGENCIES.  IT COULD ACCOMPLISH NEITHER THAT
PROTECTIVE AIM NOR THE COMPREHENSIVE AND EFFECTIVE DUAL REGULATION
CONGRESS HAD IN MIND, IF THOSE COMPANIES COULD DIVERT AT WILL ALL OR
THE CREAM OF THEIR BUSINESS TO UNREGULATED INDUSTRIAL USES."  332 U.S.
AT 519, 520-521. 

THE STATUTORY SCHEME OF "DUAL REGULATION" MIGHT HAVE SOME OVERLAPS OR
CONFLICTS BUT NO SUCH EXIGENCIES APPEAR HERE.  THERE ARE NO OPPOSING
DIRECTIVES AND HENCE NO NECESSITY FOR US TO RESOLVE ANY CONFLICTING
CLAIMS AS BETWEEN STATE AND FEDERAL REGULATION. 

APPELLANT CONCEDES, AS IT MUST, THAT DIRECT SALES BY IT TO INDUSTRIAL
CONSUMERS ARE SUBJECT TO STATE RATE REGULATION UNDER THE PANHANDLE
INDIANA DECISION.  IT CONTENDS, HOWEVER, THAT THAT DECISION DOES NOT
COMPREHEND ITS PROBLEM, REASONING THAT THE JURISDICTION HERE ASSERTED
BY THE MICHIGAN COMMISSION IS THE POWER TO PROHIBIT INTERSTATE COMMERCE
IN NATURAL GAS. 

ALTHOUGH THE END RESULT MIGHT BE PROHIBITION OF PARTICULAR DIRECT
SALES, TO REQUIRE APPELLANT TO SECURE A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY BEFORE IT MAY ENTER A MUNICIPALITY ALREADY
SERVED BY A PUBLIC UTILITY IS REGULATION, NOT ABSOLUTE PROHIBITION. 
THERE IS NO INTIMATION THAT APPELLANT CANNOT DELIVER AND SELL AVAILABLE
GAS TO CONSOLIDATED FOR RESALE TO CUSTOMERS WHO HAVE ADDITIONAL GAS
REQUIREMENTS.  IT IS NO DISCRIMINATION AGAINST INTERSTATE COMMERCE FOR
MICHIGAN TO REQUIRE APPELLANT TO ROUTE ITS SALES OF GAS THROUGH THE
EXISTING CERTIFICATED UTILITY WHERE THE PUBLIC CONVENIENCE AND
NECESSITY WOULD NOT BE SERVED BY DIRECT SALES.  THAT THERE IS NEITHER
DISCRIMINATION NOR PROHIBITION HERE SAVES THIS REGULATION FROM THE RULE
OF SUCH CASES AS HOOD & SONS V. DU MOND, 336 U.S. 525, RELIED ON BY
APPELLANT, WHERE A STATE WAS SAID TO HAVE DISCRIMINATED AGAINST
INTERSTATE COMMERCE BY PROHIBITING IT BECAUSE IT WOULD SUBJECT LOCAL
BUSINESS TO COMPETITION.  AND THE STATUTE UNDER WHICH THE MICHIGAN
COMMISSION ACTED DOES NOT DISTINGUISH BETWEEN AN INTERSTATE OR
INTRASTATE AGENCY DESIRING TO OPERATE IN A LOCALITY ALREADY SERVED BY A
UTILITY.  FN2  SEE CITIES SERVICE CO. V. PEERLESS CO., 340 U.S. 179,
188. 

IT DOES NOT FOLLOW THAT BECAUSE APPELLANT IS ENGAGED IN INTERSTATE
COMMERCE IT IS FREE FROM STATE REGULATION OR FREE TO MANAGE ESSENTIALLY
LOCAL ASPECTS OF ITS BUSINESS AS IT PLEASES.  THE COURSE OF THIS
COURT'S DECISIONS RECOGNIZES NO SUCH LICENSE.  SEE CITIES SERVICE CASE,
SUPRA; PANHANDLE-INDIANA CASE, SUPRA; PENNSYLVANIA GAS CO. V.
COMMISSION, 252 U.S. 23.  SUCH A COURSE WOULD NOT ACCOMPLISH THE
EFFECTIVE DUAL REGULATION CONGRESS INTENDED, AND WOULD PERMIT APPELLANT
TO PREJUDICE SUBSTANTIAL LOCAL INTERESTS.  THIS IS NOT COMPELLED BY THE
NATURAL GAS ACT OR THE COMMERCE CLAUSE OF THE CONSTITUTION.  JUDGMENT
AFFIRMED. 

FN1  THE COMMISSION ACTED UNDER AUTHORITY OF MICH. COMP. LAWS, 1948,
SEC. 460.502, WHICH PROVIDES: 

"SEC. 2.  NO PUBLIC UTILITY SHALL HEREAFTER BEGIN THE CONSTRUCTION OR
OPERATION OF ANY PUBLIC UTILITY PLANT OR SYSTEM THEREOF NOR SHALL IT
RENDER ANY SERVICE FOR THE PURPOSE OF TRANSACTING OR CARRYING ON A
LOCAL BUSINESS EITHER DIRECTLY, OR INDIRECTLY, BY SERVING ANY OTHER
UTILITY OR AGENCY SO ENGAGED IN SUCH LOCAL BUSINESS, IN ANY
MUNICIPALITY IN THIS STATE WHERE ANY OTHER UTILITY OR AGENCY IS THEN
ENGAGED IN SUCH LOCAL BUSINESS AND RENDERING THE SAME SORT OF SERVICE,
OR WHERE SUCH MUNICIPALITY IS RECEIVING SERVICE OF THE SAME SORT, UNTIL
SUCH PUBLIC UTILITY SHALL FIRST OBTAIN FROM THE COMMISSION A
CERTIFICATE THAT PUBLIC CONVENIENCE AND NECESSITY REQUIRES OR WILL
REQUIRE SUCH CONSTRUCTION, OPERATION, SERVICE, OR EXTENSION." 

OTHER RELEVANT SECTIONS OF THE MICHIGAN STATUTE PROVIDE: 

"SEC. 3.  BEFORE ANY SUCH CERTIFICATE OF CONVENIENCE AND NECESSITY
SHALL ISSUE, THE APPLICANT THEREFOR SHALL FILE A PETITION WITH THE
COMMISSION STATING THE NAME OF THE MUNICIPALITY OR MUNICIPALITIES WHICH
IT DESIRES TO SERVE AND THE KIND OF SERVICE WHICH IT PROPOSES TO
RENDER, AND THAT THE APPLICANT HAS SECURED THE NECESSARY CONSENT OR
FRANCHISE FROM SUCH MUNICIPALITY OR MUNICIPALITIES AUTHORIZING IT TO
TRANSACT A LOCAL BUSINESS."  SEC. 460.503.    "SEC. 5.  IN DETERMINING
THE QUESTION OF PUBLIC CONVENIENCE AND NECESSITY THE COMMISSION SHALL
TAKE INTO CONSIDERATION THE SERVICE BEING RENDERED BY THE UTILITY THEN
SERVING SUCH TERRITORY, THE INVESTMENT IN SUCH UTILITY, THE BENEFIT, IF
ANY, TO THE PUBLIC IN THE MATTER OF RATES AND SUCH OTHER MATTERS AS
SHALL BE PROPER AND EQUITABLE IN DETERMINING WHETHER OR NOT PUBLIC
CONVENIENCE AND NECESSITY REQUIRES THE APPLYING UTILITY TO SERVE THE
TERRITORY.  ...  "  SEC. 460.505.    FN2  SEE NOTE 1, SUPRA. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

PANHANDLE SEEKS TO SELL NATURAL GAS FROM ITS FIELDS IN TEXAS,
OKLAHOMA AND KANSAS DIRECTLY TO THE FORD MOTOR COMPANY AT ITS DEARBORN
PLANT IN MICHIGAN.  CONCEDEDLY THIS IS THE CLEAREST KIND OF INTERSTATE
COMMERCE.  WE HAVE NOT HERE IN CONTROVERSY PANHANDLE'S DESIRE TO LAY
PIPES IN THE PUBLIC HIGHWAYS OF MICHIGAN AND THE POWER OF MICHIGAN TO
MAKE EXACTIONS FOR SUCH PRIVILEGES SO LONG AS IT DOES NOT OFFEND THE
DOCTRINE OF UNCONSTITUTIONAL CONDITIONS.  MICHIGAN HERE IS ASSERTING A
WHOLLY DIFFERENT CLAIM.  THE STATE CLAIMS THE RIGHT TO SAY WHETHER AN
OUT-OF-STATE SELLER MAY BE PERMITTED TO COMPETE WITH MICHIGAN
DISTRIBUTORS IN THE SALE OF NATURAL GAS TO MICHIGAN INDUSTRIAL
CONSUMERS.  MICHIGAN SAYS THAT IT MAY DETERMINE THAT THE LOCAL MARKET
IS SATURATED AND THAT, SINCE THE ENTRY OF AN OUT-OF-STATE DISTRIBUTOR
MAY DISADVANTAGE OR DISRUPT THE LOCAL MARKET, IT MAY DENY HIM LEAVE TO
MAKE SUCH SALES. 

THE RIGHT HERE ASSERTED BY MICHIGAN TO PROHIBIT PANHANDLE FROM
FURNISHING GAS DIRECTLY TO CONSUMERS HAS, SINCE 1938, BY VIRTUE OF THE
NATURAL GAS ACT, BEEN LODGED IN THE FEDERAL POWER COMMISSION.  WE ARE
ADVISED BY THE COMMISSION THAT IT HAS EXERCISED IN MULTITUDINOUS
INSTANCES AUTHORITY OVER TRANSPORTATION FOR DIRECT SALE TO CONSUMERS. 
"IT IS, OF COURSE, TRUE," ADDS THE COMMISSION, "THAT A STATE
CERTIFICATE AUTHORIZING AN INTERSTATE SALE TO AN INDUSTRIAL CONSUMER
WOULD BE MEANINGLESS IF THE FEDERAL COMMISSION CAN DENY A CERTIFICATE
FOR THE NECESSARY TRANSPORTATION FACILITY, AND VICE VERSA."  IF THIS
MEANS ANYTHING IT MEANS THAT THE CONTROL WHICH MICHIGAN HERE CLAIMS IS
WITHIN THE EFFECTIVE AUTHORITY OF THE FEDERAL POWER COMMISSION.  THE
FEDERAL POWER COMMISSION MAY DENY A CERTIFICATE FOR TRANSPORTATION OF
GAS BY PANHANDLE TO THE FORD MOTOR COMPANY FOR THE SAME REASONS THAT
MICHIGAN WOULD RELY UPON IN WITHHOLDING A CERTIFICATE OF CONVENIENCE
AND NECESSITY TO PANHANDLE TO SELL ITS GAS TO FORD.  QUESTIONS OF
CONSERVATION, OF MARKET STABILITY, OF CUT-THROAT COMPETITION AND THE
LIKE WOULD BE RELEVANT FACTORS IN ONE CASE AS WELL AS IN THE OTHER. 
THE COMMISSION IS CLEAR THAT THE POWER OF MICHIGAN IS SUBORDINATE TO
ITS AUTHORITY, SO THAT MICHIGAN COULD NOT FRUSTRATE THE COMMISSION'S
AUTHORITY IN GRANTING OR DENYING TO PANHANDLE THE RIGHT TO ENTER
MICHIGAN FOR DIRECT SALE TO CONSUMERS. 

THE INFERENCE TO BE DRAWN FROM THE COMMISSION'S POSITION IS THAT,
SINCE PANHANDLE NEEDS THE COMMISSION'S CERTIFICATE FOR THE PHYSICAL
TRANSPORTATION OF THE GAS TO FORD, IT CANNOT IN ANY EVENT MAKE SUCH
SALE TO FORD PRIOR TO THE ISSUANCE OF THE CERTIFICATE.  HOWSOEVER THIS
BE, THE COURT HAS PLACED THE CASE IN A DIFFERENT FOCUS.  IT IS
SUGGESTED THAT UNTIL THERE IS AN ACTUAL CLASH BETWEEN AN ORDER OF THE
COMMISSION AND THE ORDER NOW ASSAILED THERE IS A VACUUM WHICH MICHIGAN
MAY ENTER.  NO DOUBT CONGRESS COULD GIVE THE STATES AUTHORITY OVER SUCH
A FIELD OF INTERSTATE COMMERCE AND DENY IT TO THE COMMISSION OR GIVE IT
TO THE STATES UNTIL SUPPLANTED BY COMMISSION ACTION.  IT HAS DONE
NEITHER.  THE PROBLEM THEREFORE REMAINS WHAT IT WAS UNDER THE LAW OF
THE COMMERCE CLAUSE BEFORE THE ENACTMENT OF THE NATURAL GAS ACT. 

THE PROBLEM DOES NOT DISAPPEAR BY INVOKING A SOLVING PHRASE,
"REGULATION, NOT ABSOLUTE PROHIBITION."  THE COMMERCE CLAUSE SOUGHT TO
PUT AN END TO THE ECONOMIC AUTARCHY OF THE STATES.  IT IS NOT FOR
MICHIGAN TO DETERMINE WHAT COMPETITION SHE WILL OR WILL NOT ALLOW FROM
WITHOUT, SUBJECT, OF COURSE, TO HER RIGHT TO PROTECT THOSE STATE
INTERESTS WHICH ARE IMPLIED BY THE NOW THREADBARE PHRASE THAT
INTERSTATE COMMERCE MUST ALSO PAY ITS WAY, OR TO PROTECT LOCAL
INTERESTS THAT ONLY INCIDENTALLY OR INSIGNIFICANTLY TOUCH INTERSTATE OR
FOREIGN COMMERCE.  E.G., UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202. 

IF THERE WERE NO CONSTITUTION WITH A COMMERCE CLAUSE, EACH STATE
COULD SHUT OUT THE PRODUCTS OF OTHER STATES OR ADMIT THEM ON
CONDITIONS.  UNDER THE CONSTITUTION SUCH COMMERCE BELONGS NOT TO THE
STATES BUT TO CONGRESS.  IT IS NOT FOR THE STATES, IN PURSUIT OF LOCAL
STATE POLICIES, TO DECIDE WHAT PRODUCTS FROM WITHOUT MAY CROSS STATE
BOUNDARIES OR ADMIT THEM ON CONDITION THAT THEY SATISFY LOCAL ECONOMIC
POLICY.  IF AS A MATTER OF NATIONAL POLICY STATES ARE TO HAVE SUCH
POWER, CONGRESS MUST GIVE IT TO THEM, AS IT DID IN THE CASE OF LIQUOR,
PRISON-MADE GOODS, AND INSURANCE.  SEE ACT OF AUG. 8, 1890, 26 STAT.
313, 27 U.S.C. SEC. 121; ACT OF JULY 24, 1935, 49 STAT. 494; ACT OF
AUG. 10, 1939, 53 STAT. 1391, 26 U.S.C. SEC. 1606(A); ACT OF MAR. 9,
1945, 59 STAT. 34, 15 U.S.C. SEC. 1012(B). 

AGAINST THE INHERENT RIGHT OF A STATE TO KEEP OUT EXCEPT BY ITS LEAVE
THE PRODUCTS OR SERVICES FROM OTHER STATES, THE DECISIONS IN BUCK V.
KUYKENDALL, 267 U.S. 307, AND BUSH CO. V. MALOY, 267 U.S. 317, SEEM TO
ME DECISIVE. 

WHAT MR. JUSTICE BRANDEIS, SPEAKING FOR THE ENTIRE COURT, EXCEPTING
ONLY MR. JUSTICE MCREYNOLDS, SAID IN THE BUCK CASE DEFINES THE
SITUATION HERE.  THERE, AS HERE, THE COURT WAS CONFRONTED WITH A STATE
STATUTE REQUIRING A CERTIFICATE OF CONVENIENCE AND NECESSITY.  THE
REGULATION RELATED TO PASSENGER AND FREIGHT BUSSES.  THERE WAS NO
OUTRIGHT PROHIBITION, BUT OF COURSE SUCH A SYSTEM OF CERTIFICATION IS
BASED ON THE DUTY OF DENYING ACCESS TO THE MARKET IF THE COMMUNITY IS
ALREADY ADEQUATELY SERVED.  SUCH A SCHEME "DETERMINES WHETHER THE
PROHIBITION SHALL BE APPLIED BY RESORT, THROUGH STATE OFFICIALS, TO A
TEST WHICH IS PECULIARLY WITHIN THE PROVINCE OF FEDERAL ACTION - THE
EXISTENCE OF ADEQUATE FACILITIES FOR CONDUCTING INTERSTATE COMMERCE. 
...  THUS, THE PROVISION OF THE WASHINGTON STATUTE IS A REGULATION, NOT
OF THE USE OF ITS OWN HIGHWAYS, BUT OF INTERSTATE COMMERCE.  ITS EFFECT
UPON SUCH COMMERCE IS NOT MERELY TO BURDEN BUT TO OBSTRUCT IT.  SUCH
STATE ACTION IS FORBIDDEN BY THE COMMERCE CLAUSE."  267 U.S. AT 316. 

IT IS EASY TO MOCK OR MINIMIZE THE SIGNIFICANCE OF "FREE TRADE AMONG
THE STATES," BALDWIN V. G.A.F. SEELIG, INC., 294 U.S. 511, 526, WHICH
IS THE SIGNIFICANCE GIVEN TO THE COMMERCE CLAUSE BY A CENTURY AND A
HALF OF ADJUDICATION IN THIS COURT.  WITH ALL DOUBTS AS TO WHAT LESSONS
HISTORY TEACHES, FEW SEEM CLEARER THAN THE BENEFICIAL CONSEQUENCES
WHICH HAVE FLOWED FROM THIS CONCEPTION OF THE COMMERCE CLAUSE.  IT IS
TRUE OF THIS PRINCIPLE, AS OF OTHERS, THAT THE PRINCIPLE IS NOT TO BE
REDUCED TO THE APPEAL OF THE PARTICULAR INSTANCE IN WHICH IT IS
INVOKED. 
..END :

















JORDAN V. DE GEORGE, 341 U.S. 223 


NO. 348.  ARGUED MARCH 5, 1951.  - DECIDED MAY 7, 1951.  - 183 F.2D 768,
REVERSED. 


CONSPIRACY TO DEFRAUD THE UNITED STATES OF TAXES ON DISTILLED SPIRITS
IS A "CRIME INVOLVING MORAL TURPITUDE" WITHIN THE MEANING OF SEC. 19(A)
OF THE IMMIGRATION ACT OF 1917, 8 U.S.C. SEC. 155(A), WHICH REQUIRES
THE DEPORTATION OF ANY ALIEN WHO IS SENTENCED MORE THAN ONCE TO
IMPRISONMENT FOR ONE YEAR OR MORE BECAUSE OF CONVICTION IN THIS COUNTRY
OF ANY SUCH CRIME.  PP. 223-232. 

(A)  CRIMES IN WHICH FRAUD IS AN INGREDIENT HAVE ALWAYS BEEN REGARDED
AS INVOLVING MORAL TURPITUDE.  PP. 227-229, 232. 

(B)  THE PHRASE "CRIME INVOLVING MORAL TURPITUDE" DOES NOT LACK
SUFFICIENTLY DEFINITE STANDARDS TO JUSTIFY THIS DEPORTATION PROCEEDING;
AND THE STATUTE IS NOT UNCONSTITUTIONAL FOR VAGUENESS.  PP. 229-232. 

JORDAN, DISTRICT DIRECTOR OF IMMIGRATION & NATURALIZATION, V. DE
GEORGE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING TO CHALLENGE THE VALIDITY OF A
DEPORTATION ORDER, THE DISTRICT COURT DISMISSED THE PETITION.  THE
COURT OF APPEALS REVERSED.  183 F.2D 768.  THIS COURT GRANTED
CERTIORARI.  340 U.S. 890.  REVERSED, P. 232. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS ONLY ONE QUESTION:  WHETHER CONSPIRACY TO DEFRAUD
THE UNITED STATES OF TAXES ON DISTILLED SPIRITS IS A "CRIME INVOLVING
MORAL TURPITUDE" WITHIN THE MEANING OF SEC. 19(A) OF THE IMMIGRATION
ACT OF 1917.  FN1 

RESPONDENT, A NATIVE AND CITIZEN OF ITALY, HAS LIVED CONTINUOUSLY IN
THE UNITED STATES SINCE HE ENTERED THIS COUNTRY IN 1921.  FN2  IN 1937,
RESPONDENT WAS INDICTED UNDER 18 U.S.C. SEC. 88 FN3 FOR CONSPIRING WITH
SEVEN OTHER DEFENDANTS TO VIOLATE TWELVE SECTIONS OF THE INTERNAL
REVENUE CODE.  THE INDICTMENT SPECIFICALLY CHARGED HIM WITH POSSESSING
WHISKEY AND ALCOHOL "WITH INTENT TO SELL IT IN FRAUD OF LAW AND EVADE
THE TAX THEREON."  HE WAS FURTHER ACCUSED OF REMOVING AND CONCEALING
LIQUOR "WITH INTENT TO DEFRAUD THE UNITED STATES OF THE TAX THEREON." 
FN4  AFTER PLEADING GUILTY, RESPONDENT WAS SENTENCED TO IMPRISONMENT IN
A FEDERAL PENITENTIARY FOR A TERM OF ONE YEAR AND ONE DAY. 

RESPONDENT SERVED HIS SENTENCE UNDER THIS CONVICTION, AND WAS
RELEASED FROM CUSTODY.  LESS THAN A YEAR LATER, HE RETURNED TO HIS
FORMER ACTIVITIES AND IN DECEMBER 1939, HE WAS INDICTED AGAIN WITH
EIGHT OTHER DEFENDANTS FOR VIOLATING THE SAME FEDERAL STATUTES.  HE WAS
CHARGED WITH CONSPIRING TO "UNLAWFULLY, KNOWINGLY, AND WILLFULLY
DEFRAUD THE UNITED STATES OF TAX ON DISTILLED SPIRITS."  FN5  AFTER
BEING TRIED AND FOUND GUILTY IN 1941, HE WAS SENTENCED TO IMPRISONMENT
FOR TWO YEARS. 

WHILE SERVING HIS SENTENCE UNDER THIS SECOND CONVICTION, DEPORTATION
PROCEEDINGS WERE COMMENCED AGAINST THE RESPONDENT UNDER SEC. 19(A) OF
THE IMMIGRATION ACT WHICH PROVIDES: 

"  ...  ANY ALIEN  ...  WHO IS HEREAFTER SENTENCED MORE THAN ONCE TO
SUCH A TERM OF IMPRISONMENT (ONE YEAR OR MORE) BECAUSE OF CONVICTION IN
THIS COUNTRY OF ANY CRIME INVOLVING MORAL TURPITUDE, COMMITTED AT ANY
TIME AFTER ENTRY  ...  SHALL, UPON THE WARRANT OF THE ATTORNEY GENERAL,
BE TAKEN INTO CUSTODY AND DEPORTED.  ...  "  FN6 

AFTER CONTINUED HEARINGS AND CONSIDERATION OF THE CASE BY THE
COMMISSIONER OF IMMIGRATION AND NATURALIZATION AND BY THE BOARD OF
IMMIGRATION APPEALS, RESPONDENT WAS ORDERED TO BE DEPORTED IN JANUARY
1946, ON THE GROUND THAT HE HAD TWICE BEEN CONVICTED AND SENTENCED TO
TERMS OF ONE YEAR OR MORE OF CRIMES INVOLVING MORAL TURPITUDE.  FN7
DEPORTATION WAS DEFERRED FROM TIME TO TIME AT RESPONDENT'S REQUEST
UNTIL 1949, WHEN THE DISTRICT DIRECTOR OF IMMIGRATION AND
NATURALIZATION MOVED TO EXECUTE THE WARRANT OF DEPORTATION. 

RESPONDENT THEN SOUGHT HABEAS CORPUS IN THE DISTRICT COURT, CLAIMING
THAT THE DEPORTATION ORDER WAS INVALID BECAUSE THE CRIMES OF WHICH HE
HAD BEEN CONVICTED DID NOT INVOLVE MORAL TURPITUDE.  THE DISTRICT COURT
HELD A HEARING, AND DISMISSED THE PETITION.  THE COURT OF APPEALS
REVERSED THE ORDER OF THE DISTRICT COURT AND ORDERED THAT THE
RESPONDENT BE DISCHARGED.  183 F.2D 768(1950).  THE COURT OF APPEALS
STATED THAT "CRIMES INVOLVING MORAL TURPITUDE," AS THOSE WORDS WERE
USED IN THE IMMIGRATION ACT, "WERE INTENDED TO INCLUDE ONLY CRIMES OF
VIOLENCE, OR CRIMES WHICH ARE COMMONLY THOUGHT OF AS INVOLVING
BASENESS, VILENESS OR DEPRAVITY.  SUCH A CLASSIFICATION DOES NOT
INCLUDE THE CRIME OF EVADING THE PAYMENT OF TAX ON LIQUOR, NOR OF
CONSPIRING TO EVADE THAT TAX."  183 F.2D AT 772.  WE GRANTED CERTIORARI
TO REVIEW THE DECISION, 340 U.S. 890(1950), AS CONFLICTING WITH
DECISIONS OF THE COURTS OF APPEALS IN OTHER CIRCUITS. 

THIS COURT HAS INTERPRETED THE PROVISION OF THE STATUTE BEFORE US "TO
AUTHORIZE DEPORTATION ONLY WHERE AN ALIEN HAVING COMMITTED A CRIME
INVOLVING MORAL TURPITUDE AND HAVING BEEN CONVICTED AND SENTENCED, ONCE
AGAIN COMMITS A CRIME OF THAT NATURE AND IS CONVICTED AND SENTENCED FOR
IT."  FONG HAW TAN V. PHELAN, 333 U.S. 6, 9-10(1948).  RESPONDENT HAS
ON TWO SEPARATE OCCASIONS BEEN CONVICTED OF THE SAME CRIME, CONSPIRACY
TO DEFRAUD THE UNITED STATES OF TAXES ON DISTILLED SPIRITS.  THEREFORE,
OUR INQUIRY IN THIS CASE IS NARROWED TO DETERMINING WHETHER THIS
PARTICULAR OFFENSE INVOLVES MORAL TURPITUDE.  WHETHER OR NOT CERTAIN
OTHER OFFENSES INVOLVE MORAL TURPITUDE IS IRRELEVANT AND BESIDE THE
POINT. 

THE TERM "MORAL TURPITUDE" HAS DEEP ROOTS IN THE LAW.  THE PRESENCE
OF MORAL TURPITUDE HAS BEEN USED AS A TEST IN A VARIETY OF SITUATIONS,
INCLUDING LEGISLATION GOVERNING THE DISBARMENT OF ATTORNEYS  FN8  AND
THE REVOCATION OF MEDICAL LICENSES.  FN9  MORAL TURPITUDE ALSO HAS
FOUND JUDICIAL EMPLOYMENT AS A CRITERION IN DISQUALIFYING AND
IMPEACHING WITNESSES,  FN10  IN DETERMINING THE MEASURE OF CONTRIBUTION
BETWEEN JOINT TORT-FEASORS,  FN11  AND IN DECIDING WHETHER CERTAIN
LANGUAGE IS SLANDEROUS.  FN12 

IN DECIDING THE CASE BEFORE THE COURT, WE LOOK TO THE MANNER IN WHICH
THE TERM "MORAL TURPITUDE" HAS BEEN APPLIED BY JUDICIAL DECISION. 
WITHOUT EXCEPTION, FEDERAL AND STATE COURTS HAVE HELD THAT A CRIME IN
WHICH FRAUD IS AN INGREDIENT INVOLVES MORAL TURPITUDE.  IN THE
CONSTRUCTION OF THE SPECIFIC SECTION OF THE STATUTE BEFORE US, A COURT
OF APPEALS HAS STATED THAT FRAUD HAS ORDINARILY BEEN THE TEST TO
DETERMINE WHETHER CRIMES NOT OF THE GRAVEST CHARACTER INVOLVE MORAL
TURPITUDE.  UNITED STATES EX REL. BERLANDI V. REIMER, 113 F.2D
429(1940). 

IN EVERY DEPORTATION CASE WHERE FRAUD HAS BEEN PROVED, FEDERAL COURTS
HAVE HELD THAT THE CRIME IN ISSUE INVOLVED MORAL TURPITUDE.  THIS HAS
BEEN TRUE IN A VARIETY OF SITUATIONS INVOLVING FRAUDULENT CONDUCT:
OBTAINING GOODS UNDER FRAUDULENT PRETENSES, BERMANN V. REIMER, 123 F.2D
331(1941); CONSPIRACY TO DEFRAUD BY DECEIT AND FALSEHOOD, MERCER V.
LENCE, 96 F.2D 122(1938); FORGERY WITH INTENT TO DEFRAUD, UNITED STATES
EX REL. POPOFF V. REIMER, 79 F.2D 513(1935); USING THE MAILS TO
DEFRAUD, PONZI V. WARD, 7 F.SUPP.  736(1934); EXECUTION OF CHATTEL
MORTGAGE WITH INTENT TO DEFRAUD, UNITED STATES EX REL. MILLARD V.
TUTTLE, 46 F.2D 342(1930); CONCEALING ASSETS IN BANKRUPTCY, UNITED
STATES EX REL. MEDICH V. BURMASTER, 24 F.2D 57(1928); ISSUING CHECKS
WITH INTENT TO DEFRAUD, UNITED STATES EX REL. PORTADA V. DAY, 16 F.2D
328(1926).  IN THE STATE COURTS, CRIMES INVOLVING FRAUD HAVE
UNIVERSALLY BEEN HELD TO INVOLVE MORAL TURPITUDE.  FN13 

MOREOVER, THERE HAVE BEEN TWO OTHER DECISIONS BY COURTS OF APPEALS
PRIOR TO THE DECISION NOW UNDER REVIEW ON THE QUESTION OF WHETHER THE
PARTICULAR OFFENSE BEFORE US IN THIS CASE INVOLVES MORAL TURPITUDE
WITHIN THE MEANING OF SEC. 19(A) OF THE IMMIGRATION ACT.  IN UNITED
STATES EX REL. BERLANDI V. REIMER, 113 F.2D 429(1940), AND MAITA V.
HAFF, 116 F.2D 337(1940), COURTS OF APPEALS SPECIFICALLY DECIDED THAT
THE CRIME OF CONSPIRACY TO VIOLATE THE INTERNAL REVENUE LAWS BY
POSSESSING AND CONCEALING DISTILLED SPIRITS WITH INTENT TO DEFRAUD THE
UNITED STATES OF TAXES INVOLVES MORAL TURPITUDE.  FURTHERMORE, IN
GUARNERI V. KESSLER, 98 F.2D 580(1938), A COURT OF APPEALS HELD THAT
THE CRIME OF SMUGGLING ALCOHOL INTO THE UNITED STATES WITH INTENT TO
DEFRAUD THE UNITED STATES INVOLVES MORAL TURPITUDE. 

IN VIEW OF THESE DECISIONS, IT CAN BE CONCLUDED THAT FRAUD HAS
CONSISTENTLY BEEN REGARDED AS SUCH A CONTAMINATING COMPONENT IN ANY
CRIME THAT AMERICAN COURTS HAVE, WITHOUT EXCEPTION, INCLUDED SUCH
CRIMES WITHIN THE SCOPE OF MORAL TURPITUDE.  IT IS THEREFORE CLEAR,
UNDER AN UNBROKEN COURSE OF JUDICIAL DECISIONS, THAT THE CRIME OF
CONSPIRING TO DEFRAUD THE UNITED STATES IS A "CRIME INVOLVING MORAL
TURPITUDE." 

BUT IT HAS BEEN SUGGESTED THAT THE PHRASE "CRIME INVOLVING MORAL
TURPITUDE" LACKS SUFFICIENTLY DEFINITE STANDARDS TO JUSTIFY THIS
DEPORTATION PROCEEDING AND THAT THE STATUTE BEFORE US IS THEREFORE
UNCONSTITUTIONAL FOR VAGUENESS.  UNDER THIS VIEW, NO CRIME, HOWEVER
GRAVE, COULD BE REGARDED AS FALLING WITHIN THE MEANING OF THE TERM
"MORAL TURPITUDE."  THE QUESTION OF VAGUENESS WAS NOT RAISED BY THE
PARTIES NOR ARGUED BEFORE THIS COURT. 

IT IS SIGNIFICANT THAT THE PHRASE HAS BEEN PART OF THE IMMIGRATION
LAWS FOR MORE THAN SIXTY YEARS.  FN14  AS DISCUSSED ABOVE, THE PHRASE
"CRIME INVOLVING MORAL TURPITUDE" HAS ALSO BEEN USED FOR MANY YEARS AS
A CRITERION IN A VARIETY OF OTHER STATUTES.  NO CASE HAS BEEN DECIDED
HOLDING THAT THE PHRASE IS VAGUE, NOR ARE WE ABLE TO FIND ANY TRACE OF
JUDICIAL EXPRESSION WHICH HINTS THAT THE PHRASE IS SO MEANINGLESS AS TO
BE A DEPRIVATION OF DUE PROCESS. 

FURTHERMORE, THIS COURT HAS ITSELF CONSTRUED THE PHRASE "CRIME
INVOLVING MORAL TURPITUDE."  IN UNITED STATES EX REL. VOLPE V. SMITH,
DIRECTOR OF IMMIGRATION, 289 U.S. 422(1933), THE COURT INTERPRETED THE
SAME SECTION OF THE IMMIGRATION STATUTE NOW BEFORE US.  THERE, AN ALIEN
HAD BEEN CONVICTED OF COUNTERFEITING GOVERNMENT OBLIGATIONS WITH INTENT
TO DEFRAUD, AND ONE QUESTION OF THE CASE WAS WHETHER THE CRIME OF
COUNTERFEITING INVOLVED MORAL TURPITUDE.  THIS QUESTION WAS RAISED BY
THE PARTIES AND DISCUSSED IN THE BRIEFS.  THE COURT TREATED THE
QUESTION WITHOUT HESITATION, STATING THAT THE CRIME OF COUNTERFEITING
OBLIGATIONS OF THE UNITED STATES WAS "PLAINLY A CRIME INVOLVING MORAL
TURPITUDE."  289 U.S. AT 423. 

THE ESSENTIAL PURPOSE OF THE "VOID FOR VAGUENESS" DOCTRINE IS TO WARN
INDIVIDUALS OF THE CRIMINAL CONSEQUENCES OF THEIR CONDUCT.  WILLIAMS V.
UNITED STATES, 341 U.S. 97, DECIDED APRIL 23, 1951; SCREWS V. UNITED
STATES, 325 U.S. 91, 103-104(1945).  THIS COURT HAS REPEATEDLY STATED
THAT CRIMINAL STATUTES WHICH FAIL TO GIVE DUE NOTICE THAT AN ACT HAS
BEEN MADE CRIMINAL BEFORE IT IS DONE ARE UNCONSTITUTIONAL DEPRIVATIONS
OF DUE PROCESS OF LAW.  LANZETTA V. NEW JERSEY, 306 U.S. 451(1939);
UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81(1921).  IT SHOULD BE
EMPHASIZED THAT THIS STATUTE DOES NOT DECLARE CERTAIN CONDUCT TO BE
CRIMINAL.  ITS FUNCTION IS TO APPRISE ALIENS OF THE CONSEQUENCES WHICH
FOLLOW AFTER CONVICTION AND SENTENCE OF THE REQUISITE TWO CRIMES. 

DESPITE THE FACT THAT THIS IS NOT A CRIMINAL STATUTE, WE SHALL
NEVERTHELESS EXAMINE THE APPLICATION OF THE VAGUENESS DOCTRINE TO THIS
CASE.  WE DO THIS IN VIEW OF THE GRAVE NATURE OF DEPORTATION.  THE
COURT HAS STATED THAT "DEPORTATION IS A DRASTIC MEASURE AND AT TIMES
THE EQUIVALENT OF BANISHMENT OR EXILE  ...  IT IS THE FORFEITURE FOR
MISCONDUCT OF A RESIDENCE IN THIS COUNTRY.  SUCH A FORFEITURE IS A
PENALTY."  FONG HAW TAN V. PHELAN, SUPRA, AT 10.  WE SHALL, THEREFORE,
TEST THIS STATUTE UNDER THE ESTABLISHED CRITERIA OF THE "VOID FOR
VAGUENESS" DOCTRINE. 

WE HAVE SEVERAL TIMES HELD THAT DIFFICULTY IN DETERMINING WHETHER
CERTAIN MARGINAL OFFENSES ARE WITHIN THE MEANING OF THE LANGUAGE UNDER
ATTACK AS VAGUE DOES NOT AUTOMATICALLY RENDER A STATUTE
UNCONSTITUTIONAL FOR INDEFINITENESS.  UNITED STATES V. WURZBACH, 280
U.S. 396, 399(1930).  IMPOSSIBLE STANDARDS OF SPECIFICITY ARE NOT
REQUIRED.  FN15  UNITED STATES V. PETRILLO, 332 U.S. 1(1947).  THE TEST
IS WHETHER THE LANGUAGE CONVEYS SUFFICIENTLY DEFINITE WARNING AS TO THE
PROSCRIBED CONDUCT WHEN MEASURED BY COMMON UNDERSTANDING AND
PRACTICES.  CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385(1926). 

WE CONCLUDE THAT THIS TEST HAS BEEN SATISFIED HERE.  WHATEVER ELSE
THE PHRASE "CRIME INVOLVING MORAL TURPITUDE" MAY MEAN IN PERIPHERAL
CASES, THE DECIDED CASES MAKE IT PLAIN THAT CRIMES IN WHICH FRAUD WAS
AN INGREDIENT HAVE ALWAYS BEEN REGARDED AS INVOLVING MORAL TURPITUDE. 
WE HAVE RECENTLY STATED THAT DOUBT AS TO THE ADEQUACY OF A STANDARD IN
LESS OBVIOUS CASES DOES NOT RENDER THAT STANDARD UNCONSTITUTIONAL FOR
VAGUENESS.  SEE WILLIAMS V. UNITED STATES, SUPRA.  BUT THERE IS NO SUCH
DOUBT PRESENT IN THIS CASE.  FRAUD IS THE TOUCHSTONE BY WHICH THIS CASE
SHOULD BE JUDGED.  THE PHRASE "CRIME INVOLVING MORAL TURPITUDE" HAS
WITHOUT EXCEPTION BEEN CONSTRUED TO EMBRACE FRAUDULENT CONDUCT.  WE
THEREFORE DECIDE THAT CONGRESS SUFFICIENTLY FOREWARNED RESPONDENT THAT
THE STATUTORY CONSEQUENCE OF TWICE CONSPIRING TO DEFRAUD THE UNITED
STATES IS DEPORTATION.  REVERSED. 

FN1  39 STAT. 889, AS AMENDED, 8 U.S.C. SEC. 155(A). 

FN2  LESS THAN THREE YEARS AFTER ENTERING THE UNITED STATES,
RESPONDENT WAS CONVICTED FOR TRANSPORTING LIQUOR AND SENTENCED TO A
TERM IN THE REFORMATORY.  IN 1931, HE WAS CONVICTED AND FINED FOR
TRANSFERRING LICENSE PLATES. 

FN3  35 STAT. 1096, NOW 18 U.S.C. SEC. 371: 

"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." 

FN4  THESE CHARGES WERE BASED UPON 26 U.S.C. (1934 ED.)  SECS. 
1155(F), 1440 AND 1441. 

FN5  THE RECORD ESTABLISHES THAT RESPONDENT WAS A LARGE-SCALE
VIOLATOR ENGAGED IN A SIZABLE BUSINESS.  THE SECOND INDICTMENT ALONE
CHARGED HIM WITH POSSESSING 4,675 GALLONS OF ALCOHOL AND AN
UNDETERMINED QUANTITY OF DISTILLED SPIRITS.  AT THE RATE OF $2.25 A
GALLON THEN IN EFFECT, THE TAX ON THE ALCOHOL ALONE WOULD HAVE BEEN
OVER $10,000.    FN6  39 STAT. 889, AS AMENDED, 8 U.S.C. SEC. 155(A). 

FN7  SECTION 19(A) FURTHER PROVIDES:  "  ...  THE PROVISION OF THIS
INVOLVING MORAL TURPITUDE SHALL NOT APPLY TO ONE WHO HAS BEEN PARDONED,
NOR SHALL SUCH DEPORTATION BE MADE OR DIRECTED IF THE COURT, OR JUDGE
THEREOF, SENTENCING SUCH ALIEN FOR SUCH CRIME SHALL, AT THE TIME OF
IMPOSING JUDGMENT OR PASSING SENTENCE OR WITHIN THIRTY DAYS THEREAFTER,
DUE NOTICE HAVING FIRST BEEN GIVEN TO REPRESENTATIVES OF THE STATE,
MAKE A RECOMMENDATION TO THE ATTORNEY GENERAL THAT SUCH ALIEN SHALL NOT
BE DEPORTED IN PURSUANCE OF THIS CHAPTER  ...  " 39 STAT. 889, AS
AMENDED, 8 U.S.C. SEC. 155(A).  THE RECORD DOES NOT INDICATE THAT
RESPONDENT HAS BEEN PARDONED, NOR THAT THE SENTENCING JUDGE RECOMMENDED
THAT HE NOT BE DEPORTED, NOR THAT RESPONDENT REQUESTED THAT SUCH
RECOMMENDATION BE MADE. 

FN8  IN RE KIRBY, 10 S.D. 322, 73 N.W. 92, 39 L.R.A. 856(1897). 
BARTOS V. UNITED STATES DISTRICT COURT, 19 F.2D 722(1927); SEE BRADWAY,
MORAL TURPITUDE AS THE CRITERION OF OFFENSES THAT JUSTIFY DISBARMENT,
24 CAL. L. REV. 9-27. 

FN9  FORT V. BRINKLEY, 87 ARK. 400, 404, 112 S.W. 1084, 1085(1908). 
"IT SEEMS CLEARLY DEDUCIBLE FROM THE ABOVE CITED AUTHORITIES THAT THE
WORDS 'MORAL TURPITUDE' HAD A POSITIVE AND FIXED MEANING AT COMMON LAW
...  " 

FN10  3 WIGMORE, EVIDENCE (3D ED.), 540; CASES ARE COLLECTED AT 40
A.L.R. 1049, AND 71 A.L.R. 219. 

FN11  FIDELITY & CAS. CO. V. CHRISTENSON, 183 MINN. 182, 236 N.W.
618(1931). 

FN12  BAXTER V. MOHR, 37 MISC. 833, 76 N.Y.S. 982(1902). 

FN13  STATE DECISIONS HAVE HELD THAT THE FOLLOWING CRIMES INVOLVE
MORAL TURPITUDE:  PASSING A CHECK WITH INTENT TO DEFRAUD, BANCROFT V.
BOARD OF GOVERNORS OF REGISTERED DENTISTS OF OKLAHOMA, 202 OKLA. 108,
210 P.2D 666(1949); USING THE MAILS TO DEFRAUD, NEIBLING V. TERRY, 352
MO. 396, 177 S.W.2D 502(1944), IN RE COMYNS, 132 WASH. 391, 232 P.
269(1925); OBTAINING MONEY AND PROPERTY BY FALSE AND FRAUDULENT
PRETENSES, IN RE NEEDHAM, 364 ILL. 65, 4 N.E.2D 19(1936); POSSESSING
COUNTERFEIT MONEY WITH INTENT TO DEFRAUD, FORT V. BRINKLEY, 87 ARK.
400, 112 S.W. 1084(1908).  ONE STATE COURT HAS SPECIFICALLY HELD THAT
THE WILFUL EVASION OF FEDERAL INCOME TAXES CONSTITUTES MORAL
TURPITUDE.  LOUISIANA STATE BAR ASSN. V. STEINER, 204 LA. 1073, 16
SO.2D 843(1944). 

FN14  THE TERM "MORAL TURPITUDE" FIRST APPEARED IN THE ACT OF MARCH
3, 1891, 26 STAT. 1084, WHICH DIRECTED THE EXCLUSION OF "PERSONS WHO
HAVE BEEN CONVICTED OF A FELONY OR OTHER INFAMOUS CRIME OR MISDEMEANOR
INVOLVING MORAL TURPITUDE."  SIMILAR LANGUAGE WAS REENACTED IN THE
STATUTES OF 1903 AND 1907.  SEC. 2, ACT OF MARCH 3, 1903, 32 STAT.
1213; SEC. 2, ACT OF FEB. 20, 1907, 34 STAT. 898.  IT HAS BEEN
SUGGESTED THAT THE FACT THAT THIS PHRASE HAS BEEN USED IN THE
IMMIGRATION LAWS FOR OVER SIXTY YEARS HAS NO WEIGHT IN UPHOLDING ITS
CONSTITUTIONALITY.  OF COURSE, THE MERE EXISTENCE OF A STATUTE FOR OVER
SIXTY YEARS DOES NOT PROVIDE IMMUNITY FROM CONSTITUTIONAL ATTACK.  WE
HAVE RECENTLY HELD AN EQUALLY ANCIENT STATUTE UNCONSTITUTIONAL FOR
VAGUENESS.  WINTERS V. NEW YORK, 333 U.S. 507(1948).  THERE, A STATUTE,
WHICH EMPLOYED VAGUE TERMINOLOGY WHOLLY LACKING IN COMMON LAW
BACKGROUND OR INTERPRETATION, WAS AIMED AT LIMITING RIGHTS OF FREE
SPEECH.  EVEN IN THE WINTERS CASE, HOWEVER, SEVERAL DISSENTING MEMBERS
OF THIS COURT WERE OF THE VIEW THAT THE VENERABILITY OF THE STATUTE WAS
AN ELEMENT TO BE CONSIDERED IN DECIDING THE QUESTION OF VAGUENESS. 

FN15  THE PHRASE "CRIME INVOLVING MORAL TURPITUDE" PRESENTS NO
GREATER UNCERTAINTY OR DIFFICULTY THAN LANGUAGE FOUND IN MANY OTHER
STATUTES REPEATEDLY SANCTIONED BY THE COURT.  THE SHERMAN ACT PROVIDES
THE MOST OBVIOUS EXAMPLE, "RESTRAINT OF TRADE" AS CONSTRUED TO MEAN
"UNREASONABLE OR UNDUE RESTRAINT OF TRADE," NASH V. UNITED STATES, 229
U.S. 373(1913).  COMPARE OTHER STATUTORY LANGUAGE WHICH HAS SURVIVED
ATTACK UNDER THE VAGUENESS DOCTRINE IN THIS COURT:  "IN EXCESS OF THE
NUMBER OF EMPLOYEES NEEDED BY SUCH LICENSEE TO PERFORM ACTUAL
SERVICES," UNITED STATES V. PETRILLO, 332 U.S. 1(1947); "ANY OFFENSIVE,
DERISIVE OR ANNOYING WORD," CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S.
568(1942); "CONNECTED WITH OR RELATED TO THE NATIONAL DEFENSE," GORIN
V. UNITED STATES, 312 U.S. 19(1941); "PSYCHOPATHIC PERSONALITY,"
MINNESOTA V. PROBATE COURT, 309 U.S. 270(1940); "WILFULLY OVERVALUES
ANY SECURITY," KAY V. UNITED STATES, 303 U.S. 1(1938); "FAIR AND OPEN
COMPETITION," OLD DEARBORN CO. V. SEAGRAM CORP., 299 U.S. 183(1936);
"REASONABLE VARIATIONS SHALL BE PERMITTED," UNITED STATES V. SHREVEPORT
GRAIN & ELEVATOR CO., 287 U.S. 77(1932); "UNREASONABLE WASTE OF NATURAL
GAS," BANDINI PETROLEUM CO. V. SUPERIOR COURT, 284 U.S. 8(1931);
"POLITICAL PURPOSES," UNITED STATES V. WURZBACH, 280 U.S. 396(1930);
"RANGE USUALLY OCCUPIED BY ANY CATTLE GROWER," OMAECHEVARRIA V. IDAHO,
246 U.S. 343(1918). 

MR. JUSTICE JACKSON, DISSENTING. 

RESPONDENT, BECAUSE HE IS AN ALIEN, AND BECAUSE HE HAS BEEN TWICE
CONVICTED OF CRIMES THE COURT HOLDS INVOLVE "MORAL TURPITUDE," IS
PUNISHED WITH A LIFE SENTENCE OF BANISHMENT IN ADDITION TO THE
PUNISHMENT WHICH A CITIZEN WOULD SUFFER FOR THE IDENTICAL ACTS.  MR.
JUSTICE BLACK, MR. JUSTICE FRANKFURTER AND I CANNOT AGREE, BECAUSE WE
BELIEVE THE PHRASE "CRIME INVOLVING MORAL TURPITUDE," AS FOUND IN THE
IMMIGRATION ACT,  FN1  HAS NO SUFFICIENTLY DEFINITE MEANING TO BE A
CONSTITUTIONAL STANDARD FOR DEPORTATION. 

RESPONDENT MIGRATED TO THIS COUNTRY FROM HIS NATIVE ITALY IN 1921 AT
THE AGE OF SEVENTEEN.  HERE HE HAS LIVED TWENTY-NINE YEARS, IS MARRIED
TO AN AMERICAN CITIZEN, AND HIS SON, CITIZEN BY BIRTH, IS NOW A
UNIVERSITY STUDENT.  IN MAY, 1938, HE PLEADED GUILTY TO A CHARGE OF
CONSPIRACY TO VIOLATE THE INTERNAL REVENUE CODE  FN2  AND WAS SENTENCED
TO IMPRISONMENT FOR ONE YEAR AND ONE DAY.  ON JUNE 6, 1941, HE WAS
CONVICTED OF A SECOND VIOLATION AND SENTENCED TO IMPRISONMENT FOR TWO
YEARS.  DURING THE DECADE SINCE, HE HAS NOT BEEN ARRESTED OR CHARGED
WITH ANY LAW VIOLATION.  WHILE STILL IN PRISON, HOWEVER, DEPORTATION
PROCEEDINGS WERE INSTITUTED AGAINST HIM, RESULTING IN 1946, IN A
WARRANT FOR ARREST AND DEPORTATION. 

BY HABEAS CORPUS PROCEEDINGS, DE GEORGE CHALLENGED THE DEPORTATION
ORDER UPON THE GROUND THAT HIS IS NOT A CRIME "INVOLVING MORAL
TURPITUDE."  THE DISTRICT COURT THOUGHT IT DID AND DISMISSED THE WRIT. 
THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT THOUGHT IT DID NOT AND
REVERSED.  FN3 THERE IS A CONFLICT AMONG THE CIRCUITS.  FN4 

WHAT THE GOVERNMENT SEEKS, AND WHAT THE COURT CANNOT GIVE, IS A BASIC
DEFINITION OF "MORAL TURPITUDE" TO GUIDE ADMINISTRATORS AND LOWER
COURTS. 

THE UNCERTAINTIES OF THIS STATUTE DO NOT ORIGINATE IN CONTRARIETY OF
JUDICIAL OPINION.  CONGRESS KNOWINGLY CONCEIVED IT IN CONFUSION. 
DURING THE HEARINGS OF THE HOUSE COMMITTEE ON IMMIGRATION, OUT OF WHICH
EVENTUALLY CAME THE ACT OF 1917 IN CONTROVERSY, CLEAR WARNING OF ITS
DEFICIENCIES WAS SOUNDED AND NEVER DENIED. 

"MR. SABATH.  ...  (YOU) KNOW THAT A CRIME INVOLVING MORAL TURPITUDE
HAS NOT BEEN DEFINED.  NO ONE CAN REALLY SAY WHAT IS MEANT BY SAYING A
CRIME INVOLVING MORAL TURPITUDE.  UNDER SOME CIRCUMSTANCES, LARCENY IS
CONSIDERED A CRIME INVOLVING MORAL TURPITUDE - THAT IS, STEALING.  WE
HAVE LAWS IN SOME STATES UNDER WHICH PICKING OUT A CHUNK OF COAL ON A
RAILROAD TRACK IS CONSIDERED LARCENY OR STEALING.  IN SOME STATES IT IS
CONSIDERED A FELONY.  SOME STATES HOLD THAT EVERY FELONY IS A CRIME
INVOLVING MORAL TURPITUDE.  IN SOME PLACES THE STEALING OF A WATERMELON
OR A CHICKEN IS LARCENY.  IN SOME STATES THE AMOUNT IS NOT STATED.  OF
COURSE, IF THE LARCENY IS OF AN ARTICLE, OR A THING WHICH IS LESS THAN
$20 IN VALUE, IT IS A MISDEMEANOR IN SOME STATES, BUT IN OTHER STATES
THERE IS NO DISTINCTION.  FN5  " 

DESPITE THIS NOTICE, CONGRESS DID NOT SEE FIT TO STATE WHAT MEANING
IT ATTRIBUTES TO THE PHRASE "CRIME INVOLVING MORAL TURPITUDE."  IT IS
NOT ONE WHICH HAS SETTLED SIGNIFICANCE FROM BEING WORDS OF ART IN THE
PROFESSION.  IF WE GO TO THE DICTIONARIES, THE LAST RESORT OF THE
BAFFLED JUDGE, WE LEARN LITTLE EXCEPT THAT THE EXPRESSION IS REDUNDANT,
FOR TURPITUDE ALONE MEANS MORAL WICKEDNESS OR DEPRAVITY N6 AND MORAL
TURPITUDE SEEMS TO MEAN LITTLE MORE THAN MORALLY IMMORAL.  FN7  THE
GOVERNMENT CONFESSES THAT IT IS "A TERM THAT IS NOT CLEARLY DEFINED,"
AND SAYS:  "THE VARIOUS DEFINITIONS OF MORAL TURPITUDE PROVIDE NO EXACT
TEST BY WHICH WE CAN CLASSIFY THE SPECIFIC OFFENSES HERE INVOLVED." 

EXCEPT FOR THE COURT'S OPINION, THERE APPEARS TO BE UNIVERSAL
RECOGNITION THAT WE HAVE HERE AN UNDEFINED AND UNDEFINABLE STANDARD. 
THE PARTIES AGREE THAT THE PHRASE IS AMBIGUOUS AND HAVE PROPOSED A
VARIETY OF TESTS TO REDUCE THE ABSTRACT PROVISION OF THIS STATUTE TO
SOME CONCRETE MEANING. 

IT IS PROPOSED BY RESPONDENT, WITH STRONG SUPPORT IN LEGISLATIVE
HISTORY, THAT CONGRESS HAD IN MIND ONLY CRIMES OF VIOLENCE.  FN8  IF
THE COURT SHOULD ADOPT THIS CONSTRUCTION, THE STATUTE BECOMES
SUFFICIENTLY DEFINITE, AND, OF COURSE, WOULD NOT REACH THE CRIMES OF
THE RESPONDENT. 

THE GOVERNMENT SUGGESTS SERIOUSNESS OF THE CRIME AS A TEST AND SAYS
THE STATUTE IS ONE BY WHICH IT IS "SOUGHT TO REACH THE CONFIRMED
CRIMINAL, WHOSE CRIMINALITY HAS BEEN REVEALED IN TWO SERIOUS PENAL
OFFENSES."  BUT WE CANNOT, AND THE COURT DOES NOT, TAKE SERIOUSNESS AS
A TEST OF TURPITUDE.  ALL OFFENSES DENOUNCED BY CONGRESS, PROSECUTED BY
THE EXECUTIVE, AND CONVICTED BY THE COURTS, MUST BE DEEMED IN SOME
DEGREE "SERIOUS" OR LAW ENFORCEMENT WOULD BE A FRIVOLOUS ENTERPRISE. 
HOWEVER, USE OF QUALIFYING WORDS MUST MEAN THAT NOT ALL STATUTORY
OFFENSES ARE SUBJECT TO THE TAINT OF TURPITUDE.  THE HIGHER DEGREES OF
CRIMINAL GRAVITY ARE COMMONLY CLASSIFIED AS FELONIES, THE LOWER ONES AS
MISDEMEANORS.  IF THE ACT CONTEMPLATED THAT REPETITION OF ANY SERIOUS
CRIME WOULD BE GROUNDS FOR DEPORTATION, IT WOULD HAVE BEEN SIMPLE AND
INTELLIGIBLE TO HAVE MENTIONED FELONIES.  BUT THE LANGUAGE USED
INDICATES THAT THERE ARE FELONIES WHICH ARE NOT INCLUDED AND PERHAPS
THAT SOME MISDEMEANORS ARE.  WE CANNOT SEE THAT SERIOUSNESS AFFORDS ANY
STANDARD OF GUIDANCE. 

RESPONDENT SUGGESTS HERE, AND THE GOVERNMENT HAS ON OTHER OCCASIONS
TAKEN THE POSITION, THAT THE TRADITIONAL DISTINCTION BETWEEN CRIMES
MALA PROHIBITA AND THOSE MALA IN SE WILL AFFORD A KEY FOR THE
INCLUSIONS AND EXCLUSIONS OF THIS STATUTE.  FN9  BUT WE CANNOT OVERLOOK
THAT WHAT CRIMES BELONG IN WHICH CATEGORY HAS BEEN THE SUBJECT OF
CONTROVERSY FOR YEARS.  FN10  THIS CLASSIFICATION COMES TO US FROM
COMMON LAW, WHICH IN ITS EARLY HISTORY FREELY BLENDED RELIGIOUS
CONCEPTIONS OF SIN WITH LEGAL CONCEPTIONS OF CRIME.  THIS STATUTE SEEMS
TO REVERT TO THAT PRACTICE. 

THE GOVERNMENT, HOWEVER, OFFERS THE MALA PROHIBITA, MALA IN SE
DOCTRINE HERE IN SLIGHTLY DIFFERENT VERBIAGE FOR DETERMINING THE NATURE
OF THESE CRIMES.  IT SAYS: "ESSENTIALLY, THEY MUST BE MEASURED AGAINST
THE MORAL STANDARDS THAT PREVAIL IN CONTEMPORARY SOCIETY TO DETERMINE
WHETHER THE VIOLATIONS ARE GENERALLY CONSIDERED ESSENTIALLY IMMORAL." 

CAN WE ACCEPT "THE MORAL STANDARDS THAT PREVAIL IN CONTEMPORARY
SOCIETY" AS A SUFFICIENTLY DEFINITE STANDARD FOR THE PURPOSES OF THE
ACT?  THIS IS A LARGE COUNTRY AND ACTS THAT ARE REGARDED AS CRIMINAL IN
SOME STATES ARE LAWFUL IN OTHERS.  WE SUSPECT THAT MORAL STANDARDS
WHICH PREVAIL AS TO POSSESSION OR SALE OF LIQUOR THAT HAS EVADED TAX
MAY NOT BE UNIFORM IN ALL PARTS OF THE COUNTRY, NOR IN ALL LEVELS OF
"CONTEMPORARY SOCIETY."  HOW SHOULD WE ASCERTAIN THE MORAL SENTIMENTS
OF MASSES OF PERSONS ON ANY BETTER BASIS THAN A GUESS?  FN11 

THE COURT SEEMS NO MORE CONVINCED THAN ARE WE BY THE GOVERNMENT'S
ATTEMPTS TO REDUCE THESE NEBULOUS ABSTRACTIONS TO A CONCRETE WORKING
RULE, BUT TO SUSTAIN THIS PARTICULAR DEPORTATION IT IMPROVISES ANOTHER
WHICH FAILS TO CONVINCE US.  ITS THESIS IS (1) THAT THE STATUTE IS
SIXTY YEARS OLD, (2) THAT STATE COURTS HAVE USED THE SAME CONCEPT FOR
VARIOUS PURPOSES, AND (3) THAT FRAUD IMPORTS TURPITUDE INTO ANY
OFFENSE. 

1.  IT IS SOMETHING LESS THAN ACCURATE TO IMPLY THAT IN ANY SENSE
RELEVANT TO THIS ISSUE THIS PHRASE HAS BEEN "PART OF THE IMMIGRATION
LAWS FOR MORE THAN SIXTY YEARS."  FN12 

BUT, IN ANY EVENT, VENERABILITY OF A VAGUE PHRASE MAY BE AN ARGUMENT
FOR ITS VALIDITY WHEN THE PASSING YEARS HAVE BY ADMINISTRATION PRACTICE
OR JUDICIAL CONSTRUCTION SERVED TO MAKE IT CLEAR AS A WORD OF LEGAL
ART. TO BE SURE, THE PHRASE IN ITS PRESENT CONTEXT HAS BEEN ON THE
STATUTE BOOKS SINCE 1917.  IT HAS NEVER BEFORE BEEN IN ISSUE BEFORE
THIS COURT.  RELIANCE TODAY ON UNITED STATES V. SMITH, 289 U.S. 422, IS
UNWARRANTED.  THERE THE COURT ASSUMED WITHOUT ANALYSIS OR DISCUSSION A
PROPOSITION NOT SERIOUSLY RELIED ON.  THERE HAVE, HOWEVER, BEEN
SOMETHING LIKE FIFTY CASES IN LOWER COURTS WHICH APPLIED THIS PHRASE. 
NO ONE CAN READ THIS BODY OF OPINIONS AND FEEL THAT ITS APPLICATION
REPRESENTS A SATISFYING, RATIONAL PROCESS.  IF ANY CONSISTENT PATTERN
OF APPLICATION OR CONSENSUS OF MEANING COULD BE DISTILLED FROM JUDICIAL
DECISION, NEITHER THE GOVERNMENT NOR THE COURT SPELLS IT OUT. 
IRRATIONALITY IS INHERENT IN THE TASK OF TRANSLATING THE RELIGIOUS AND
ETHICAL CONNOTATIONS OF THE PHRASE INTO LEGAL DECISIONS.  THE LOWER
COURT CASES SEEM TO REST, AS WE FEEL THIS COURT'S DECISION DOES, UPON
THE MORAL REACTIONS OF PARTICULAR JUDGES TO PARTICULAR OFFENSES.  WHAT
IS STRIKING ABOUT THE OPINIONS IN THESE "MORAL TURPITUDE" CASES IS THE
WEARISOME REPETITION OF CLICHES ATTEMPTING TO DEFINE "MORAL TURPITUDE,"
USUALLY A QUOTATION FROM BOUVIER.  BUT THE GUIDING LINE SEEMS TO HAVE
NO RELATION TO THE RESULT REACHED.  THE CHIEF IMPRESSION FROM THE CASES
IS THE CAPRICE OF THE JUDGMENTS.  FN13  HOW MANY ALIENS HAVE BEEN
DEPORTED WHO WOULD NOT HAVE BEEN HAD SOME OTHER JUDGE HEARD THEIR
CASES, AND VICE VERSA, WE MAY ONLY GUESS.  THAT IS NOT GOVERNMENT BY
LAW.    2.  THE USE OF THE PHRASE BY STATE COURTS FOR VARIOUS CIVIL
PROCEEDINGS AFFORDS NO TEACHING FOR FEDERAL COURTS.  THE FEDERAL
GOVERNMENT HAS NO COMMON-LAW CRIMES AND THE JUDGES ARE NOT PERMITTED TO
DEFINE CRIMES BY DECISION, FOR THEY REST SOLELY IN STATUTE.  FN14  NOR
ARE WE PERSUADED THAT THE STATE COURTS HAVE BEEN ABLE TO DIVEST THE
PHRASE OF ITS INHERENT AMBIGUITIES AND VAGUENESS.    3.  THE COURT
CONCLUDES THAT FRAUD IS "A CONTAMINATING COMPONENT IN ANY CRIME" AND
IMPORTS "MORAL TURPITUDE."  THE FRAUD INVOLVED HERE IS NONPAYMENT OF A
TAX.  THE ALIEN POSSESSED AND APPARENTLY TRAFFICKED IN LIQUOR WITHOUT
PAYING THE GOVERNMENT ITS TAX.  THAT, OF COURSE, IS A FRAUD ON THE
REVENUES.  BUT THOSE WHO DEPLORE THE TRAFFIC REGARD IT AS MUCH AN
EXHIBITION OF MORAL TURPITUDE FOR THE GOVERNMENT TO SHARE ITS REVENUES
AS FOR RESPONDENTS TO WITHHOLD THEM.  THOSE OTHERS WHO ENJOY THE
TRAFFIC ARE NOT NOTABLE FOR SCRUPLES AS TO WHETHER LIQUOR HAS A LAW
ABIDING PEDIGREE.  SO FAR AS THIS OFFENSE IS CONCERNED WITH WHISKEY, IT
IS NOT PARTICULARLY UN-AMERICAN, AND WE SEE NO REASON TO STRAIN TO MAKE
THE PENALTY FOR THE SAME ACT SO MUCH MORE SEVERE IN THE CASE OF AN
ALIEN "BOOTLEGGER" THAN IT IS IN THE CASE OF A NATIVE "MOONSHINER."  I
HAVE NEVER DISCOVERED THAT DISREGARD OF THE NATION'S LIQUOR TAXES
EXCLUDED A CITIZEN FROM OUR BEST SOCIETY AND I SEE NO REASON WHY IT
SHOULD BANISH AN ALIEN FROM OUR WORST. 

BUT IT IS SAID HE HAS CHEATED THE REVENUES AND THE TOTAL IS COMPUTED
IN HIGH FIGURES.  IF "MORAL TURPITUDE" DEPENDS ON THE AMOUNT INVOLVED,
RESPONDENT IS PROBABLY ENTITLED TO A PLACE IN ITS HIGHER BRACKETS. 
WHETHER BY POPULAR TEST THE MAGNITUDE OF THE FRAUD WOULD BE AN
EXTENUATING OR AN AGGRAVATING CIRCUMSTANCE, WE DO NOT KNOW.  WE WOULD
SUPPOSE THE BASIC MORALITY OF A FRAUD ON THE REVENUES WOULD BE THE SAME
FOR PETTY AS FOR GREAT CHEATS.  BUT WE ARE NOT AWARE OF ANY KEEN
SENTIMENT OF REVULSION AGAINST ONE WHO IS A LITTLE NIGGARDLY ON A
CUSTOMS DECLARATION OR WHO EVADES A SALES TAX, A LOCAL CIGARETTE TAX,
OR FAILS TO KEEP HIS ACCOUNT SQUARE WITH A PARKING METER.  BUT PERHAPS
WHAT SHOCKS IS NOT THE OFFENSE SO MUCH AS A CONVICTION. 

WE SHOULD NOT FORGET THAT CRIMINALITY IS ONE THING - A MATTER OF LAW
AND THAT MORALITY, ETHICS AND RELIGIOUS TEACHINGS ARE ANOTHER.  THEIR
RELATIONS HAVE PUZZLED THE BEST OF MEN.  ASSASSINATION, FOR EXAMPLE,
WHOSE CRIMINALITY NO ONE DOUBTS, HAS BEEN THE SUBJECT OF SERIOUS DEBATE
AS TO ITS MORALITY.  FN15  THIS DOES NOT MAKE CRIME LESS CRIMINAL, BUT
IT SHOWS ON WHAT TREACHEROUS GROUNDS WE TREAD WHEN WE UNDERTAKE TO
TRANSLATE ETHICAL CONCEPTS INTO LEGAL ONES, CASE BY CASE.  WE USUALLY
END UP BY CONDEMNING ALL THAT WE PERSONALLY DISAPPROVE AND FOR NO
BETTER REASON THAN THAT WE DISAPPROVE IT.  IN FACT, WHAT BETTER REASON
IS THERE?  UNIFORMITY AND EQUAL PROTECTION OF THE LAW CAN COME ONLY
FROM A STATUTORY DEFINITION OF FAIRLY STABLE AND CONFINED BOUNDS. 

A DIFFERENT QUESTION MIGHT BE BEFORE US HAD CONGRESS INDICATED THAT
THE DETERMINATION BY THE BOARD OF IMMIGRATION APPEALS THAT A CRIME
INVOLVES "MORAL TURPITUDE" SHOULD BE GIVEN THE WEIGHT USUALLY
ATTRIBUTED TO ADMINISTRATIVE DETERMINATIONS.  BUT THAT IS NOT THE CASE,
NOR HAVE THE COURTS SO INTERPRETED THE STATUTE.  IN THE FIFTY-ODD CASES
EXAMINED, NO WEIGHT WAS ATTACHED TO THE DECISION OF THAT QUESTION BY
THE BOARD, THE COURT IN EACH CASE MAKING ITS OWN INDEPENDENT ANALYSIS
AND CONCLUSION.  APPARENTLY, CONGRESS EXPECTED THE COURTS TO DETERMINE
THE VARIOUS CRIMES INCLUDABLE IN THIS VAGUE PHRASE.  FN16  WE THINK
THAT NOT A JUDICIAL FUNCTION. 

A RESIDENT ALIEN IS ENTITLED TO DUE PROCESS OF LAW.  FN17  WE HAVE
SAID THAT DEPORTATION IS EQUIVALENT TO BANISHMENT OR EXILE.  FN18
DEPORTATION PROCEEDINGS TECHNICALLY ARE NOT CRIMINAL; BUT PRACTICALLY
THEY ARE FOR THEY EXTEND THE CRIMINAL PROCESS OF SENTENCING TO INCLUDE
ON THE SAME CONVICTIONS AN ADDITIONAL PUNISHMENT OF DEPORTATION.  IF
RESPONDENT WERE A CITIZEN, HIS AGGREGATE SENTENCES OF THREE YEARS AND A
DAY WOULD HAVE BEEN SERVED LONG SINCE AND HIS PUNISHMENT ENDED.  BUT
BECAUSE OF HIS ALIENAGE, HE IS ABOUT TO BEGIN A LIFE SENTENCE OF EXILE
FROM WHAT HAS BECOME HOME, OF SEPARATION FROM HIS ESTABLISHED MEANS OF
LIVELIHOOD FOR HIMSELF AND HIS FAMILY OF AMERICAN CITIZENS.  THIS IS A
SAVAGE PENALTY AND WE BELIEVE DUE PROCESS OF LAW REQUIRES STANDARDS FOR
IMPOSING IT AS DEFINITE AND CERTAIN AS THOSE FOR CONVICTION OF CRIME. 

STRANGELY ENOUGH, THE COURT DOES NOT EVEN PAY THE TRIBUTE OF A
CITATION TO ITS RECENT DECISION IN MUSSER V. UTAH, 333 U.S. 95, WHERE A
MAJORITY JOINED IN VACATING AND REMANDING A DECISION WHICH HAD
SUSTAINED CONVICTIONS UNDER A UTAH STATUTE WHICH MADE CRIMINAL A
CONSPIRACY "TO COMMIT ACTS INJURIOUS TO PUBLIC MORALS."  WE SAID OF
THAT STATUTE:  "STANDING BY ITSELF, IT WOULD SEEM TO BE WARRANT FOR
CONVICTION FOR AGREEMENT TO DO ALMOST ANY ACT WHICH A JUDGE AND JURY
MIGHT FIND AT THE MOMENT CONTRARY TO HIS OR ITS NOTIONS OF WHAT WAS
GOOD FOR HEALTH, MORALS, TRADE, COMMERCE, JUSTICE OR ORDER."  333 U.S.
AT 97.  FOR MY PART, I AM UNABLE TO RATIONALIZE WHY "ACTS INJURIOUS TO
PUBLIC MORALS" IS VAGUE IF "MORAL TURPITUDE" IS NOT.  AND ON REMAND,
THE SUPREME COURT OF UTAH SAID:  "WE ARE  ...  UNABLE TO PLACE A
CONSTRUCTION ON THESE WORDS WHICH LIMITS THEIR MEANING BEYOND THEIR
GENERAL MEANING."  STATE V. MUSSER,  - UTAH - , - , 223 P.2D 193,
194(OCT.  20, 1950). 

IN WINTERS V. NEW YORK, 333 U.S. 507, THE COURT DIRECTLY STRUCK DOWN
FOR INDEFINITENESS A STATUTE SIXTY YEARS ON THE STATUTE BOOKS OF NEW
YORK AND INDIRECTLY LIKE STATUTES LONG ON THE BOOKS OF HALF THE STATES
OF THE UNION.  FN19  THE NEW YORK STATUTE MADE A PERSON GUILTY OF A
MISDEMEANOR WHO IN ANY WAY DISTRIBUTES "ANY BOOK, PAMPHLET, MAGAZINE,
NEWSPAPER OR OTHER PRINTED PAPER DEVOTED TO THE PUBLICATION, AND
PRINCIPALLY MADE UP OF CRIMINAL NEWS, POLICE REPORTS, OR ACCOUNTS OF
CRIMINAL DEEDS, OR PICTURES, OR STORIES OF DEEDS OF BLOODSHED, LUST OR
CRIME; ...  " 333 U.S. AT 508.  THAT STATUTE WAS CERTAINLY NO MORE
VAGUE THAN THE ONE BEFORE US NOW AND HAD NOT CAUSED EVEN A FRACTION OF
THE JUDICIAL CONFLICT THAT "MORAL TURPITUDE" HAS. 

IN WINTERS V. NEW YORK, SUPRA, THE COURT RESTED HEAVILY ON CONNALLY
V. GENERAL CONSTRUCTION CO., 269 U.S. 385, IN WHICH THIS COURT FOUND
UNCONSTITUTIONAL INDEFINITENESS IN A STATUTE CALLING FOR "THE CURRENT
RATE OF PER DIEM WAGES IN THE LOCALITY" WHERE CONTRACTORS WERE DOING
GOVERNMENT WORK.  (THE SANCTION OF THE STATUTE WAS A RELATIVELY SMALL
MONEY FINE, OR A MAXIMUM OF SIX MONTHS, THOUGH OF COURSE A CORPORATE
VIOLATOR COULD ONLY BE SUBJECTED TO THE FINE.)  THE TEST BY WHICH
VAGUENESS WAS TO BE DETERMINED ACCORDING TO THE CONNALLY CASE WAS THAT
LEGISLATION USES TERMS "SO VAGUE THAT MEN OF COMMON INTELLIGENCE MUST
NECESSARILY GUESS AT ITS MEANING AND DIFFER AS TO ITS APPLICATION  ...
"  269 U.S. AT 391.  IT WOULD SEEM TO BE DIFFICULT TO FIND A MORE
STRIKING INSTANCE THAN WE HAVE HERE OF SUCH A PHRASE SINCE IT REQUIRES
EVEN JUDGES TO GUESS AND PERMITS THEM TO DIFFER. 

WE DO NOT DISAGREE WITH A POLICY OF EXTREME RELUCTANCE TO ADJUDGE A
CONGRESSIONAL ACT UNCONSTITUTIONAL.  BUT WE DO NOT HERE QUESTION THE
POWER OF CONGRESS TO DEFINE DEPORTABLE CONDUCT.  WE ONLY QUESTION THE
POWER OF ADMINISTRATIVE OFFICERS AND COURTS TO DECREE DEPORTATION UNTIL
CONGRESS HAS GIVEN AN INTELLIGIBLE DEFINITION OF DEPORTABLE CONDUCT. 

FN1  SECTION 19(A) OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, 39
STAT. 889, AS AMENDED, 8 U.S.C. SEC. 155(A). 

FN2  53 STAT. 401, 26 U.S.C. SEC. 3321. 

FN3  183 F.2D 768. 

FN4  UNITED STATES EX REL. BERLANDI V. REIMER, 113 F.2D 429(C.A.2D
CIR.) AND MAITA V. HAFF, 116 F.2D 337(C.A.9TH CIR.) HOLD THIS CRIME
INVOLVES MORAL TURPITUDE.  CF. GUARNERI V. KESSLER, 98 F.2D 580(C.A.5TH
CIR.), CERT. DENIED, 305 U.S. 648. 

FN5  HEARINGS BEFORE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON H.R. 10384, 64TH CONG., 1ST SESS. 8. 

FN6  BLACK'S LAW DICTIONARY DEFINES TURPITUDE AS:  "(INHERENT)
BASENESS OR VILENESS OF PRINCIPLE OR ACTION; SHAMEFUL WICKEDNESS;
DEPRAVITY."  AN EXAMPLE OF ITS USE ALONE TO SIGNIFY IMMORALITY MAY BE
TAKEN FROM MACAULAY, WHOSE MOST BITTER CRITICS WOULD ADMIT HE WAS A
MASTER OF THE ENGLISH WORD.  "(THE) ARTISTS CORRUPTED THE SPECTATORS,
AND THE SPECTATORS THE ARTISTS, TILL THE TURPITUDE OF THE DRAMA BECAME
SUCH AS MUST ASTONISH ALL WHO ARE NOT AWARE THAT EXTREME RELAXATION IS
THE NATURAL EFFECT OF EXTREME RESTRAINT."  HISTORY OF ENGLAND, VOL. I
(1849 ED.), P. 374. 

FN7  BOUVIER'S LAW DICTIONARY, RAWLES THIRD REVISION, DEFINES "MORAL
TURPITUDE" AS "AN ACT OF BASENESS, VILENESS OR DEPRAVITY IN THE PRIVATE
AND SOCIAL DUTIES WHICH A MAN OWES TO HIS FELLOW MEN OR TO SOCIETY IN
GENERAL, CONTRARY TO THE ACCEPTED AND CUSTOMARY RULE OF RIGHT AND DUTY
BETWEEN MAN AND MAN." 

FN8  "MR. WOODS.  ...  I WOULD MAKE PROVISIONS TO GET RID OF AN ALIEN
IN THIS COUNTRY WHO COMES HERE AND COMMITS FELONIES AND BURGLARIES,
HOLDS YOU UP ON THE STREETS, AND COMMITS CRIMES AGAINST OUR DAUGHTERS,
BECAUSE WE DO NOT WANT THAT KIND OF ALIEN HERE, AND THEY HAVE NO RIGHT
TO BE HERE.  ...  THE RULE IS THAT IF WE GET A MAN IN THIS COUNTRY WHO
HAS NOT BECOME A CITIZEN, WHO KNOCKS DOWN PEOPLE IN THE STREET, WHO
MURDERS OR WHO ATTEMPTS TO MURDER PEOPLE, WHO BURGLARIZES OUR HOUSES
WITH BLACKJACK AND REVOLVER, WHO ATTACKS OUR WOMEN IN THE CITY, THOSE
PEOPLE SHOULD NOT BE HERE  ...  "  HEARINGS BEFORE HOUSE COMMITTEE ON
IMMIGRATION AND NATURALIZATION ON H.R. 10384, 64TH CONG., 1ST SESS.
14.  MR. WOODS WAS NOT AN ORDINARY WITNESS.  AS THE THEN POLICE
COMMISSIONER OF NEW YORK CITY, HIS TESTIMONY APPEARS TO HAVE BEEN MOST
INFLUENTIAL IN THIS PROVISION OF THE 1917 ACT. 

FN9  IN VOLUME II OF ADMINISTRATIVE DECISIONS UNDER IMMIGRATION AND
NATIONALITY LAWS OF THE UNITED STATES, P. 141, THERE IS AN
ADMINISTRATIVE INTERPRETATION BY THE DEPARTMENT THEN HAVING THE
ADMINISTRATION OF THE ACT.  IN AN OPINION ON A DEPORTATION PROCEEDING
DECIDED BY THE BOARD JUNE 26, 1944, AND APPROVED BY THE ATTORNEY
GENERAL JULY 12, 1944, THE STATEMENT WAS QUOTED WITH APPROVAL: 

"'A CRIME INVOLVING MORAL TURPITUDE MAY BE EITHER A FELONY OR
MISDEMEANOR, EXISTING AT COMMON LAW OR CREATED BY STATUTE, AND IS AN
ACT OR OMISSION WHICH IS MALUM IN SE AND NOT MERELY MALUM PROHIBITUM;
WHICH IS ACTUATED BY MALICE OR COMMITTED WITH KNOWLEDGE AND INTENTION
AND NOT DONE INNOCENTLY OR (WITHOUT ADVERTENCE) OR REFLECTION; WHICH IS
SO FAR CONTRARY TO THE MORAL LAW, AS INTERPRETED BY THE GENERAL MORAL
SENSE OF THE COMMUNITY, THAT THE OFFENDER IS BROUGHT TO PUBLIC
DISGRACE, IS NO LONGER GENERALLY RESPECTED, OR IS DEPRIVED OF SOCIAL
RECOGNITION BY GOOD LIVING PERSONS; BUT WHICH IS NOT THE OUTCOME MERELY
OF NATURAL PASSION, OF ANIMAL SPIRITS, OF INFIRMITY OF TEMPER, OF
WEAKNESS OF CHARACTER, OF MISTAKEN PRINCIPLES, UNACCOMPANIED BY A
VICIOUS MOTIVE OR A CORRUPT MIND.'" 

FN10  CRIMES MALA IN SE, ACCORDING TO BLACKSTONE, ARE OFFENSES
AGAINST "(THOSE) RIGHTS THEN WHICH GOD AND NATURE HAVE ESTABLISHED, AND
ARE THEREFORE CALLED NATURAL RIGHTS, SUCH AS ARE LIFE AND LIBERTY,  ...
THE WORSHIP OF GOD, THE MAINTENANCE OF CHILDREN, AND THE LIKE."  THEY
ARE "CRIMES AND MISDEMEANORS, THAT ARE FORBIDDEN BY THE SUPERIOR LAWS,
AND THEREFORE STYLED MALA IN SE (CRIMES IN THEMSELVES), SUCH AS MURDER,
THEFT, AND PERJURY; WHICH CONTRACT NO ADDITIONAL TURPITUDE FROM BEING
DECLARED UNLAWFUL BY THE INFERIOR LEGISLATURE."  ACCORDING TO
BLACKSTONE, CRIMES MALA PROHIBITA "ENJOIN ONLY POSITIVE DUTIES, AND
FORBID ONLY SUCH THINGS AS ARE NOT MALA IN SE  ... WITHOUT ANY
INTERMIXTURE OF MORAL GUILT."  ILLUSTRATIVE OF THIS TYPE OF CRIME ARE
"EXERCISING TRADES WITHOUT SERVING AN APPRENTICESHIP THERETO, FOR NOT
BURYING THE DEAD IN WOOLLEN, FOR NOT PERFORMING THE STATUTE-WORK ON THE
PUBLIC ROADS, AND FOR INNUMERABLE OTHER POSITIVE MISDEMEANORS.  NOW
THESE PROHIBITORY LAWS DO NOT MAKE THE TRANSGRESSION A MORAL OFFENSE,
OR SIN:  THE ONLY OBLIGATION IN CONSCIENCE IS TO SUBMIT TO THE PENALTY,
IF LEVIED."  "(AND) HIS CONSCIENCE WILL BE CLEAR, WHICH EVER SIDE OF
THE ALTERNATIVE HE THINKS PROPER TO EMBRACE."  COOLEY'S BLACKSTONE,
VOL. I (4TH ED.), PP.*  54,*  58.  OF THIS, J. W. C. URNER SAYS:  "SOME
OF THE WEAK POINTS IN THIS DOCTRINE WERE DETECTED BY AN EARLY EDITOR OF
BLACKSTONE, AND IN MODERN TIMES IT IS GENERALLY REGARDED AS QUITE
DISCREDITED."  THE MODERN APPROACH TO CRIMINAL LAW 221.  AND CF. UNITED
STATES V. BALINT, 258 U.S. 250. 

FN11  AS JUDGE LEARNED HAND PUT IT, IN ATTEMPTING TO RESOLVE A
SIMILAR CONFLICT:  "EVEN THOUGH WE COULD TAKE A POLL, IT WOULD NOT BE
ENOUGH MERELY TO COUNT HEADS, WITHOUT ANY APPRAISAL OF THE VOTERS.  A
MAJORITY OF THE VOTES OF THOSE IN PRISONS AND BROTHELS, FOR INSTANCE,
OUGHT SCARCELY TO OUTWEIGH THE VOTES OF ACCREDITED CHURCHGOERS.  NOR
CAN WE SEE ANY REASON TO SUPPOSE THAT THE OPINION OF CLERGYMEN WOULD BE
A MORE RELIABLE ESTIMATE THAN OUR OWN."  SCHMIDT V. UNITED STATES, 177
F.2D 450, 451(C.A.2D CIR.). 

FN12  WE ARE CONSTRUING THE ACT OF 1917 AND NOT THE EARLIER
IMMIGRATION ACTS, THOSE OF MARCH 3, 1891, 26 STAT. 1084; MARCH 3, 1903,
32 STAT. 1213; FEBRUARY 20, 1907, 34 STAT. 898.  ALL OF THESE PRIOR
STATUTES ALLOWED DEPORTATION FOR CONVICTION FOR EVERY FELONY OR CRIME,
WHICH MEANT FOR CONVICTION OF EVERY CRIME INVOLVING A SENTENCE OF NOT
LESS THAN A YEAR.  IT THEN ADDED ANOTHER DEPORTABLE CATEGORY, TO WIT,
MISDEMEANORS INVOLVING MORAL TURPITUDE.  IN ADDITION TO ALL CRIMES
INVOLVING A SENTENCE OF A YEAR OR MORE, THE EARLIER ACTS CARVED OUT A
SMALL CATEGORY OF PETTY OFFENSES, WHEN THEY WERE OF A KIND "INVOLVING
MORAL TURPITUDE," I.E., OFFENSES EVEN THOUGH CARRYING A SMALL SENTENCE
HAVING A MANIFESTATION OF INTRINSIC BADNESS.  BUT THAT CREATES A VERY
DIFFERENT PROBLEM FROM REQUIRING US TO DISCRIMINATE AMONG ALL OFFENSES,
FELONIES AND MISDEMEANORS ON THE BASIS OF INTRINSIC BADNESS.    FN13
HOW UNGUIDING THE GUIDE "MORAL TURPITUDE" IS, IN RELATION TO THE
ENFORCEMENT OF THE ACT OF 1917, CAN BE SHOWN BY THREE PAIRS OF CASES: 

(1)  IN TILLINGHAST V. EDMEAD, 31 F.2D 81, THE FIRST CIRCUIT, OVER A
PUNGENT DISSENT, HELD THAT A CONVICTION FOR PETTY LARCENY BY AN
"IGNORANT COLORED GIRL" WORKING AS A DOMESTIC WAS AN OFFENSE INVOLVING
"MORAL TURPITUDE."  ON THE OTHER HAND, IN UNITED STATES V. UHL, 107
F.2D 399, THE SECOND CIRCUIT HELD THAT CONVICTION FOR POSSESSION OF A
JIMMY, WITH INTENT TO USE IT IN THE COMMISSION OF SOME CRIME, THE JIMMY
BEING "ADAPTED, DESIGNED AND COMMONLY USED FOR THE COMMISSION OF THE
CRIMES OF BURGLARY AND LARCENY" WAS NOT FOR AN OFFENSE INVOLVING "MORAL
TURPITUDE." 

(2)  IN UNITED STATES V. DAY, 15 F.2D 391(D.C.S.D.N.Y.), JUDGE KNOX
HELD THAT AN ASSAULT IN THE SECOND DEGREE, THOUGH BY ONE INTOXICATED,
CONSTITUTED A CRIME INVOLVING "MORAL TURPITUDE."  BUT IN UNITED STATES
V. ZIMMERMAN, 71 F.SUPP.  534(D.C.E.D. PA.), JUDGE MARIS HELD THAT JAIL
BREAKING BY A BANK ROBBER AWAITING TRIAL WAS NOT AN OFFENSE INVOLVING
"MORAL TURPITUDE." 

(3)  IN ROUSSEAU V. WEEDIN, 284 F. 565, THE NINTH CIRCUIT HELD THAT
ONE WHO WAS CONVICTED OF BEING A "JOINTIST" UNDER A WASHINGTON STATUTE
PROHIBITING "THE UNLAWFUL SALE OF INTOXICATING LIQUOR" WAS DEPORTABLE
AS HAVING COMMITTED A CRIME INVOLVING "MORAL TURPITUDE."  WHILE IN
HAMPTON V. WONG GING, 299 F. 289, IT HELD (WITH THE SAME TWO JUDGES
SITTING IN BOTH CASES) THAT A CONVICTION UNDER THE NARCOTIC ACT WAS NOT
OF ITSELF A CRIME OF "MORAL TURPITUDE," SINCE THE RECORD DID NOT SHOW
WHETHER THE OFFENSE FOR WHICH CONVICTION WAS HAD WAS "OF SUCH AN
AGGRAVATED CHARACTER AS TO INVOLVE MORAL TURPITUDE." 

FN14  VIERECK V. UNITED STATES, 318 U.S. 236, 241. 

FN15  JOHN STUART MILL, REFERRING TO THE MORALITY OF ASSASSINATION OF
POLITICAL USURPERS, PASSED BY EXAMINATION OF THE SUBJECT OF
TYRANNICIDE, AS FOLLOWS:  "I SHALL CONTENT MYSELF WITH SAYING THAT THE
SUBJECT HAS BEEN AT ALL TIMES ONE OF THE OPEN QUESTIONS OF MORALS; THAT
THE ACT OF A PRIVATE CITIZEN IN STRIKING DOWN A CRIMINAL, WHO, BY
RAISING HIMSELF ABOVE THE LAW, HAS PLACED HIMSELF BEYOND THE REACH OF
LEGAL PUNISHMENT OR CONTROL, HAS BEEN ACCOUNTED BY WHOLE NATIONS, AND
BY SOME OF THE BEST AND WISEST OF MEN, NOT A CRIME, BUT AN ACT OF
EXALTED VIRTUE; AND THAT, RIGHT OR WRONG, IT IS NOT OF THE NATURE OF
ASSASSINATION, BUT OF CIVIL WAR."  MILL, ON LIBERTY AND CONSIDERATIONS
ON REPRESENTATIVE GOVERNMENT, P. 14, N. 1. 

THE VICE OF LEAVING STATUTES THAT INFLICT PENALTIES SO VAGUE IN
DEFINITION THAT THEY THROW THE JUDGE IN EACH CASE BACK UPON HIS OWN
NOTIONS IS THE UNCONSCIOUS TENDENCY TO 

"COMPOUND FOR SINS THEY ARE INCLIN'D TO, 

BY DAMNING THOSE THEY HAVE NO MIND TO." 

BUTLER, HUDIBRAS, VOL. I (1772 ED.), 28. 

FN16  HOWEVER, A STATEMENT BY THE CHAIRMAN OF THE COMMITTEE ON
IMMIGRATION AND NATURALIZATION MAY SUGGEST ANOTHER EXPLANATION:  "MY
RECOLLECTION IS THAT THE SUPREME COURT OF THE UNITED STATES HAS
DETERMINED WHAT CRIMES ARE CRIMES INVOLVING MORAL TURPITUDE UNDER THE
FEDERAL LAW, AND IF SO, THAT WOULD CONTROL, I SHOULD THINK."  HEARINGS
BEFORE HOUSE COMMITTEE ON IMMIGRATION AND NATURALIZATION ON H.R. 10384,
64TH CONG., 1ST SESS. 8. 

FN17  WONG YANG SUNG V. MCGRATH, 339 U.S. 33. 

FN18  FONG HAW TAN V. PHELAN, 333 U.S. 6, 10. 

FN19  THE COURT'S REFERENCE TO THE DISSENT IN THE WINTERS CASE WOULD
SEEM TO MAKE QUESTIONABLE ITS PRESENT FORCE AS AN AUTHORITY. 
..END :






MONTANA-DAKOTA CO. V. PUB. SERV. CO., 341 U.S. 246 


NO. 77.  ARGUED NOVEMBER 27, 1950.  - DECIDED MAY 7, 1951.  - 181 F.2D
19, AFFIRMED ON A DIFFERENT GROUND. 


PETITIONER AND RESPONDENT ARE PUBLIC UTILITY ELECTRIC COMPANIES
ENGAGED IN INTERSTATE COMMERCE AND SUBJECT TO THE FEDERAL POWER ACT. 
FOR TEN YEARS, WHILE UNDER THE SAME MANAGEMENT THROUGH INTERLOCKING
DIRECTORATES AND JOINT OFFICERS WITH THE APPROVAL OF THE FEDERAL POWER
COMMISSION, PETITIONER'S PREDECESSOR AND RESPONDENT INTERCHANGED
ELECTRIC ENERGY, SHARED EXPENSES AND MADE A NUMBER OF INTERCOMPANY
CONTRACTS ESTABLISHING RATES AND CHARGES WHICH WERE FILED WITH AND
ACCEPTED BY THE COMMISSION.  AFTER SEPARATION OF THEIR MANAGEMENT,
PETITIONER SUED IN A FEDERAL DISTRICT COURT TO RECOUP LOSSES ALLEGED TO
HAVE RESULTED FROM ITS PREDECESSOR PAYING RESPONDENT UNREASONABLY HIGH
CHARGES FOR WHAT RESPONDENT FURNISHED IT AND RECEIVING UNREASONABLY LOW
RATES FOR WHAT IT FURNISHED RESPONDENT.  IT ALLEGED THAT THESE RATES
AND CHARGES WERE FRAUDULENT AND UNLAWFUL AND WERE DUE TO THE
INTERLOCKING DIRECTORATES, WHICH PREVENTED PROTEST TO THE COMMISSION TO
HAVE REASONABLE RATES AND CHARGES ESTABLISHED PURSUANT TO THE
PROVISIONS OF THE FEDERAL POWER ACT.  THERE WAS NO DIVERSITY OF
CITIZENSHIP OF THE PARTIES; AND FEDERAL JURISDICTION WAS ASSERTED
SOLELY ON THE GROUND THAT THE CASE AROSE UNDER THE FEDERAL POWER ACT. 
HELD: 

1.  SINCE THE COMPLAINT ASSERTED A CAUSE OF ACTION UNDER THE FEDERAL
POWER ACT, THE DISTRICT COURT HAD JURISDICTION TO DETERMINE WHETHER IT
STATED A CAUSE OF ACTION MAINTAINABLE IN A FEDERAL COURT AND, IF SO,
WHETHER IT WAS SUSTAINED ON THE FACTS.  P. 249. 

2.  THE COMPLAINT STATED NO CAUSE OF ACTION MAINTAINABLE IN A FEDERAL
COURT.  PP. 249-255. 

(A)  UNDER THE FEDERAL POWER ACT, THE RIGHT TO A REASONABLE RATE IS
THE RIGHT TO THE RATE WHICH THE COMMISSION FILES OR FIXES; AND, EXCEPT
FOR REVIEW OF THE COMMISSION'S ORDERS, A COURT CAN ASSUME NO RIGHT TO A
DIFFERENT RATE ON THE GROUND THAT, IN THE OPINION OF THE COURT, SUCH
DIFFERENT RATE IS THE ONLY REASONABLE RATE OR A MORE REASONABLE RATE. 
PP. 250-252. 

(B)  IN THE ABSENCE OF DIVERSITY OF CITIZENSHIP, THE ALLEGATION OF
FRAUD RESULTING FROM THE INTERLOCKING RELATIONSHIP DID NOT STATE A
CAUSE OF ACTION MAINTAINABLE IN A FEDERAL COURT.  PP. 252-253. 

(C)  SINCE THE FEDERAL POWER ACT DOES NOT AUTHORIZE THE COMMISSION TO
GRANT REPARATIONS FOR UNREASONABLE RATES COLLECTED IN THE PAST, THE
DISTRICT COURT COULD NOT PROPERLY REFER THE CASE TO THE COMMISSION FOR
DETERMINATION OF THE REASONABLENESS OF THE RATES HERE INVOLVED.  PP.
253-254. 

3.  SINCE THE CASE INVOLVES ONLY ISSUES WHICH A FEDERAL COURT CANNOT
DECIDE AND CAN ONLY REFER TO A BODY WHICH ALSO WOULD HAVE NO
INDEPENDENT JURISDICTION TO DECIDE THEM, THE COMPLAINT MUST BE
DISMISSED.  P. 255. 

MONTANA-DAKOTA UTILITIES CO. V. NORTHWESTERN PUBLIC SERVICE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

IN A SUIT ALLEGED TO BE FOUNDED ON THE FEDERAL POWER ACT, THE
DISTRICT COURT AWARDED PETITIONER A JUDGMENT FOR LOSSES SUSTAINED ON
PAST RATES AND CHARGES WHICH THE DISTRICT COURT FOUND TO BE
UNREASONABLE AND BASED ON FRAUD.  THE COURT OF APPEALS REVERSED ON THE
GROUND THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION.  181 F.2D 19. 
THIS COURT GRANTED CERTIORARI.  340 U.S. 806.  AFFIRMED ON A DIFFERENT
GROUND, P. 255. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER AND RESPONDENT ARE PUBLIC ELECTRIC UTILITIES COMPANIES
ENGAGED IN INTERSTATE COMMERCE.  PETITIONER'S PREDECESSOR AND
RESPONDENT WERE UNDER THE SAME MANAGEMENT THROUGH INTERLOCKING
DIRECTORSHIPS AND JOINT OFFICERS.  DURING THAT RELATIONSHIP THE TWO
INTERCHANGED ELECTRIC ENERGY, SHARED EXPENSES, AND MADE A NUMBER OF
INTERCOMPANY CONTRACTS ESTABLISHING RATES AND CHARGES, WHICH CONTRACTS
WERE FILED WITH AND ACCEPTED BY THE FEDERAL POWER COMMISSION.  THESE
CONTRACT RATES AND CHARGES ARE AT THE ROOT OF THIS CONTROVERSY. 
PETITIONER CHARGES THAT, DURING THE PERIOD 1935-1945, ITS PREDECESSOR
PAID RESPONDENT UNREASONABLY HIGH PRICES FOR WHAT RESPONDENT FURNISHED
IT, AND THAT IT RECEIVED UNREASONABLY LOW RATES FOR WHAT IT PROVIDED
RESPONDENT.  THAT ADVANTAGE, IT IS ALLEGED, WAS FRAUDULENT AND UNLAWFUL
AND WAS DUE TO THE INTERLOCKING DIRECTORATE, WHICH PREVENTED PROTEST TO
THE COMMISSION TO HAVE REASONABLE RATES AND CHARGES ESTABLISHED
PURSUANT TO THE PROVISIONS OF THE FEDERAL POWER ACT.  FN1 

PETITIONER SUED IN UNITED STATES DISTRICT COURT AND ASSERTED
JURISDICTION ON THE GROUND THAT THE CASE "ARISES UNDER THE CONSTITUTION
OR LAWS OF THE UNITED STATES"  FN2  AND, MORE PARTICULARLY, UNDER A
"LAW REGULATING COMMERCE," N3 SPECIFICALLY THE FEDERAL POWER ACT. 

PETITIONER WAS SUCCESSFUL IN THE DISTRICT COURT, WHICH FOUND THE
CONTRACTS VOID FOR FRAUD AND THE RATES AND CHARGES ESTABLISHED THEREIN
UNREASONABLE.  THE COURT ALSO DETERMINED WHAT WOULD HAVE BEEN
REASONABLE RATES AND CHARGES FOR THE PERIOD IN QUESTION AND GAVE
JUDGMENT FOR THE DIFFERENCE BETWEEN ITS CONCEPTION OF REASONABLE
CHARGES AND THE ACTUAL CHARGES, AMOUNTING TO OVER THREE-QUARTERS OF A
MILLION DOLLARS.  FN4 

THE JUDGMENT WAS REVERSED BY THE COURT OF APPEALS FOR THE EIGHTH
CIRCUIT ON THE GROUND THAT THE DISTRICT COURT WAS WITHOUT
JURISDICTION.  FN5 

AS FREQUENTLY HAPPENS WHERE JURISDICTION DEPENDS ON SUBJECT MATTER,
THE QUESTION WHETHER JURISDICTION EXISTS HAS BEEN CONFUSED WITH THE
QUESTION WHETHER THE COMPLAINT STATES A CAUSE OF ACTION.  THE JUDICIAL
CODE, IN VESTING JURISDICTION IN THE DISTRICT COURTS, DOES NOT CREATE
CAUSES OF ACTION, BUT ONLY CONFERS JURISDICTION TO ADJUDICATE THOSE
ARISING FROM OTHER SOURCES WHICH SATISFY ITS LIMITING PROVISIONS. 
PETITIONER ASSERTED A CAUSE OF ACTION UNDER THE POWER ACT.  TO
DETERMINE WHETHER THAT CLAIM IS WELL FOUNDED, THE DISTRICT COURT MUST
TAKE JURISDICTION, WHETHER ITS ULTIMATE RESOLUTION IS TO BE IN THE
AFFIRMATIVE OR THE NEGATIVE.  IF THE COMPLAINT RAISES A FEDERAL
QUESTION, THE MERE CLAIM CONFERS POWER TO DECIDE THAT IT HAS NO MERIT,
AS WELL AS TO DECIDE THAT IT HAS.  IN THE WORDS OF MR. JUSTICE HOLMES,
"  ...  IF THE PLAINTIFF REALLY MAKES A SUBSTANTIAL CLAIM UNDER AN ACT
OF CONGRESS THERE IS JURISDICTION WHETHER THE CLAIM ULTIMATELY BE HELD
GOOD OR BAD."  THE FAIR V. KOHLER DIE CO., 228 U.S. 22, 25.  SEE ALSO
HURN V. OURSLER, 289 U.S. 238, 240.  EVEN A PATENTLY FRIVOLOUS
COMPLAINT MIGHT BE SUFFICIENT TO CONFER POWER TO MAKE A FINAL DECISION
THAT IT IS OF THAT NATURE, BINDING AS RES JUDICATA ON THE PARTIES. 

PETITIONER'S COMPLAINT, IN SUBSTANCE, ALLEGES EXISTENCE OF THE
INTERLOCKING DIRECTORSHIP, CONTENDS THAT SUCH RELATIONSHIP WAS USED
FRAUDULENTLY TO DEPRIVE IT OF ITS FEDERALLY CONFERRED RIGHT TO
REASONABLE RATES AND CHARGES, AND DEMANDS REPARATIONS.  WE THINK THERE
WAS POWER IN THE DISTRICT COURT TO DECIDE WHETHER THE CLAIMS SO
GROUNDED CONSTITUTE A CAUSE OF ACTION MAINTAINABLE IN FEDERAL COURT
AND, IF SO, WHETHER IT IS SUSTAINED ON THE FACTS.  WE THINK A DIRECTION
TO DISMISS FOR WANT OF JURISDICTION WAS ERROR AND THAT IT SHOULD NOT
STAND AS A PRECEDENT. 

HOWEVER, IT IS CLEAR THAT THE REASON UNDERLYING THE COURT OF APPEALS'
DECISION WAS THAT NO FEDERAL CAUSE OF ACTION WAS ESTABLISHED.  IF THIS
WAS CORRECT, WE SHOULD SUSTAIN THE JUDGMENT OF REVERSAL, THOUGH ON
OTHER GROUNDS THAN THOSE STATED. 

THE PETITIONER'S PROBLEM IS TO AVOID SCYLLA WITHOUT BEING DRAWN INTO
CHARYBDIS.  IF ITS CAUSE OF ACTION ARISES FROM FRAUD AND DECEIT, IT IS
A COMMON-LAW ACTION OF WHICH A FEDERAL COURT HAS NO JURISDICTION, THERE
BEING NO DIVERSITY IN CITIZENSHIP OF THESE PARTIES.  BUT IF IT ARISES
FROM BEING CHARGED RATES IN EXCESS OF THOSE PERMITTED BY THE POWER ACT,
IT IS CONFRONTED WITH THE EXCLUSIVE POWERS OF THE COMMISSION TO
DETERMINE WHAT THOSE RATES ARE TO BE.  HENCE, IT IS NECESSARY TO BRING
THE CASE INTO COURT, NOT AS A FRAUD ACTION, BUT AS ONE TO ENFORCE THE
POWER ACT, USING THE ALLEGATIONS OF FRAUD TO ESCAPE THE LIMITATIONS OF
THE POWER COMMISSION REMEDIES. 

I. 

PETITIONER IDENTIFIES AS THE SOURCE OF ITS CAUSE OF ACTION THE
FEDERAL POWER ACT'S REQUIREMENT OF REASONABLE ELECTRIC UTILITY RATES,
FN6  WHICH, IT CONTENDS, CREATES ITS LEGAL RIGHT TO RATES WHICH A COURT
MAY DEEM REASONABLE, EVEN IF DIFFERENT FROM THOSE ACCEPTED BY THE
FEDERAL POWER COMMISSION.  IT IS ADMITTED, HOWEVER, THAT A UTILITY
COULD NOT INSTITUTE A SUIT IN A FEDERAL COURT TO RECOVER A PORTION OF
PAST RATES WHICH IT SIMPLY ALLEGES WERE UNREASONABLE.  IT WOULD BE OUT
OF COURT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, FOR, AT ANY
TIME IN THE PAST, IT COULD HAVE APPLIED FOR AND SECURED A REVIEW AND,
PERHAPS, A REDUCTION OF THE RATES BY THE COMMISSION.  FN7 

PETITIONER GIVES ITS CASE A DIFFERENT CAST BY ALLEGING THAT BY
FRAUDULENT ABUSE OF THE INTERLOCKING RELATIONSHIP ITS PREDECESSOR WAS
DEPRIVED OF ITS INDEPENDENCE AND POWER TO RESORT TO ITS ADMINISTRATIVE
REMEDY. 

BUT THE PROBLEM IS WHETHER IT IS OPEN TO THE COURTS TO DETERMINE WHAT
THE REASONABLE RATES DURING THE PAST SHOULD HAVE BEEN.  THE PETITIONER,
IN CONTENDING THAT THEY ARE SO EMPOWERED, AND THE DISTRICT COURT, IN
UNDERTAKING TO EXERCISE THAT POWER, BOTH REGARD REASONABLENESS AS A
JUSTICIABLE LEGAL RIGHT RATHER THAN A CRITERION FOR ADMINISTRATIVE
APPLICATION IN DETERMINING A LAWFUL RATE.  STATUTORY REASONABLENESS IS
AN ABSTRACT QUALITY REPRESENTED BY AN AREA RATHER THAN A PINPOINT.  IT
ALLOWS A SUBSTANTIAL SPREAD BETWEEN WHAT IS UNREASONABLE BECAUSE TOO
LOW AND WHAT IS UNREASONABLE BECAUSE TOO HIGH.  TO REDUCE THE ABSTRACT
CONCEPT OF REASONABLENESS TO CONCRETE EXPRESSION IN DOLLARS AND CENTS
IS THE FUNCTION OF THE COMMISSION.  IT IS NOT THE DISEMBODIED
"REASONABLENESS" BUT THAT STANDARD WHEN EMBODIED IN A RATE WHICH THE
COMMISSION ACCEPTS OR DETERMINES THAT GOVERNS THE RIGHTS OF BUYER AND
SELLER.  A COURT MAY THINK A DIFFERENT LEVEL MORE REASONABLE.  BUT THE
PRESCRIPTION OF THE STATUTE IS A STANDARD FOR THE COMMISSION TO APPLY
AND, INDEPENDENTLY OF COMMISSION ACTION, CREATES NO RIGHT WHICH COURTS
MAY ENFORCE. 

PETITIONER CANNOT SEPARATE WHAT CONGRESS HAS JOINED TOGETHER.  IT
CANNOT LITIGATE IN A JUDICIAL FORUM ITS GENERAL RIGHT TO A REASONABLE
RATE, IGNORING THE QUALIFICATION THAT IT SHALL BE MADE SPECIFIC ONLY BY
EXERCISE OF THE COMMISSION'S JUDGMENT, IN WHICH THERE IS SOME
CONSIDERABLE ELEMENT OF DISCRETION.  IT CAN CLAIM NO RATE AS A LEGAL
RIGHT THAT IS OTHER THAN THE FILED RATE, WHETHER FIXED OR MERELY
ACCEPTED BY THE COMMISSION, AND NOT EVEN A COURT CAN AUTHORIZE COMMERCE
IN THE COMMODITY ON OTHER TERMS. 

WE HOLD THAT THE RIGHT TO A REASONABLE RATE IS THE RIGHT TO THE RATE
WHICH THE COMMISSION FILES OR FIXES, AND THAT, EXCEPT FOR REVIEW OF THE
COMMISSION'S ORDERS, THE COURTS CAN ASSUME NO RIGHT TO A DIFFERENT ONE
ON THE GROUND THAT, IN ITS OPINION, IT IS THE ONLY OR THE MORE
REASONABLE ONE. 

                                 II. 

THE PETITIONER HERE CONTENDS THAT ITS CASE IS DIFFERENT BY REASON OF
ITS ALLEGATIONS OF FRAUD.  THOSE, THE EVIDENCE THAT SUPPORTS THEM, AND
THE FINDINGS ARE EXCEEDINGLY GENERAL, AND IT IS NOT ENTIRELY CLEAR
WHETHER, IN ADDITION TO THE CLAIM THAT CONSTRUCTIVE FRAUD MAY BE
INFERRED FROM THE INTERCORPORATE RELATIONSHIP, SPECIFIC ACTS OF DECEIT
ARE FOUND.  NOR DOES IT APPEAR TO HAVE BEEN THOUGHT THAT THE DIFFERENCE
BETWEEN CONSTRUCTIVE AND ACTUAL FRAUD MATTERED. 

IF THE PETITIONER'S GRIEVANCE ARISES FROM ACTIVE FRAUD AND DECEIT, IT
GAINS NOTHING FROM THE FEDERAL ACT.  SUCH AN ACTION WOULD HAVE BEEN
MAINTAINABLE IF NO FEDERAL POWER ACT HAD BEEN ENACTED.  BEFORE THE ACT,
PETITIONER WOULD HAVE HAD NO STATUTORY RIGHT TO A REASONABLE RATE, BUT
IT DID HAVE A COMMON-LAW RIGHT NOT TO BE DEFRAUDED INTO PAYING AN
EXCESSIVE OR UNREASONABLE ONE.  THE FEDERAL ACT ADDS NOTHING TO FRAUD
AS AN ACTIONABLE WRONG, AND, THEREFORE, TO FIND A CAUSE OF ACTION OF
THIS CHARACTER WOULD ONLY BE TO DISMISS IT FOR WANT OF DIVERSITY. 

BUT PETITIONER'S CASE APPEARS TO HAVE RESTED MORE HEAVILY AND PERHAPS
ENTIRELY ON CONSTRUCTIVE FRAUD PRESUMED FROM THE INTERCORPORATE
RELATIONSHIP.  THE ACT VESTS IN THE COMMISSION POWER TO AUTHORIZE AN
INTERLOCKING DIRECTORATE, WHICH OTHERWISE IS PROHIBITED, "UPON DUE
SHOWING  ...  THAT NEITHER PUBLIC NOR PRIVATE INTERESTS WILL BE
ADVERSELY AFFECTED THEREBY."  FN8  THE RELATIONSHIP HERE CONCERNED HAD
RECEIVED COMMISSION APPROVAL.  THE EFFECT OF THE APPROVAL IS TO EXEMPT
THE RELATIONSHIP FROM THE BAN OF THE ACT AND REMOVE FROM IT ANY
PRESUMPTION OF FRAUD THAT MIGHT BE THOUGHT TO ARISE FROM ITS MERE
EXISTENCE.  IT WOULD BE A STRANGE CONTRADICTION BETWEEN JUDICIAL AND
ADMINISTRATIVE POLICIES IF A RELATIONSHIP WHICH THE COMMISSION HAS
DECLARED WILL NOT ADVERSELY AFFECT PUBLIC OR PRIVATE INTERESTS WERE
REGARDED BY COURTS AS ENOUGH TO CREATE A PRESUMPTION OF FRAUD. 
PERHAPS, IN THE ABSENCE OF THE COMMISSION'S APPROVAL, SUCH RELATIONSHIP
WOULD BE SUFFICIENT TO RAISE THE PRESUMPTION UNDER STATE LAW, BUT IT
CANNOT DO SO WHERE THE FEDERAL SUPERVISING AUTHORITY HAS EXPRESSLY
APPROVED THE ARRANGEMENT. 

WE NEED NOT DECIDE WHAT ACTION THE COMMISSION IS EMPOWERED TO TAKE IF
IT BELIEVES THAT A FRAUD HAS BEEN COMMITTED ON ITSELF, FOR IT HAS TAKEN
NO ACTION WHICH GIVES RISE TO OR AFFECTS THIS CONTROVERSY. 

                           III. 

THE ENTIRE COURT IS AGREED THAT THE JUDGMENT RENDERED BY THE DISTRICT
COURT CANNOT STAND AND ALL AGREE THAT IT CANNOT ADJUDICATE THE ISSUES
THAT PLAINTIFF TENDERED TO IT.  WE DISAGREE ONLY AS TO THE CONSEQUENCES
OF THE DISABILITY.  THE MAJORITY BELIEVE THE FEDERAL COURT SHOULD
DISMISS THE COMPLAINT.  A MINORITY URGES THAT WE SHOULD DIRECT THE
DISTRICT COURT TO REFER ISSUES TO THE FEDERAL POWER COMMISSION. 

IT IS TRUE THAT IN SOME CASES THE COURT HAS DIRECTED LOWER FEDERAL
COURTS TO STAY THEIR HANDS PENDING REFERENCE TO AN ADMINISTRATIVE BODY
OF A SUBSIDIARY QUESTION.  SMITH V. HOBOKEN R. CO., 328 U.S. 123;
THOMPSON V. TEXAS MEXICAN R. CO., 328 U.S. 134; GENERAL AMERICAN TANK
CAR CORP. V. EL DORADO TERMINAL CO., 308 U.S. 422.  BUT IN ALL THOSE
CASES THE PLAINTIFF BELOW CONCEDEDLY STATED A FEDERALLY COGNIZABLE
CAUSE OF ACTION, TO WHICH THE REFERRED ISSUE WAS SUBSIDIARY.  IN NO
INSTANCE HAVE WE DIRECTED A COURT TO RETAIN A CASE IN WHICH IT COULD
NOT DETERMINE A SINGLE ONE OF ITS VITAL ISSUES.  HERE THE ISSUE OF
REASONABLENESS OF THE CHARGES IS NOT ONE CLEARLY SEVERABLE FROM THE
ISSUES OF LIABILITY, FOR THE ACTS CHARGED DO NOT AMOUNT TO FRAUD UNLESS
THERE HAS BEEN AN UNREASONABLE CHARGE.  INJURY IS AN ESSENTIAL ELEMENT
OF REMEDIABLE FRAUD.  "DECEIT AND INJURY MUST CONCUR."  ADAMS V. CLARK,
239 N.Y. 403, 410, 146 N.E. 642, 644(1925).  SEE ALSO CONNELLY V.
BARTLETT, 286 MASS. 311, 315, 190 N.E. 799, 801(1934). 

IF THE COURT IS PRESENTED WITH A CASE IT CAN DECIDE BUT SOME ISSUE IS
WITHIN THE COMPETENCE OF AN ADMINISTRATIVE BODY, IN AN INDEPENDENT
PROCEEDING, TO DECIDE, COMITY AND AVOIDANCE OF CONFLICT AS WELL AS
OTHER CONSIDERATIONS MAKE IT PROPER TO REFER THAT ISSUE.  BUT WE KNOW
OF NO CASE WHERE THE COURT HAS ORDERED REFERENCE OF AN ISSUE WHICH THE
ADMINISTRATIVE BODY WOULD NOT ITSELF HAVE JURISDICTION TO DETERMINE IN
A PROCEEDING FOR THAT PURPOSE.  THE FACT THAT THE CONGRESS WITHHELD
FROM THE COMMISSION POWER TO GRANT REPARATIONS  FN9  DOES NOT REQUIRE
COURTS TO ENTERTAIN PROCEEDINGS THEY CANNOT THEMSELVES DECIDE IN ORDER
INDIRECTLY TO OBTAIN COMMISSION ACTION WHICH CONGRESS DID NOT ALLOW TO
BE TAKEN DIRECTLY.  THERE IS NO INDICATION IN THE POWER ACT THAT THAT
WAS CONGRESS' INTENT. 

IT IS URGED THAT THIS LEAVES PETITIONER WITHOUT A REMEDY UNDER THE
POWER ACT.  WE AGREE.  IN THAT RESPECT, PETITIONER IS NO WORSE OFF
AFTER LOSING ITS LAWSUIT THAN ITS CUSTOMERS ARE IF IT WINS.  UNLESS WE
ARE TO ASSUME THAT THIS COMPANY FAILED TO INCLUDE ITS BUYING COSTS IN
ITS SELLING RATES, WE MUST ASSUME THAT ANY UNREASONABLE AMOUNTS IT PAID
SUPPLIERS IT COLLECTED FROM CONSUMERS.  INDEED, THIS IS THE ASSUMPTION
MADE BY THE COMMISSION IN ITS BRIEF AS AMICUS CURIAE HERE.  FN10  IT IS
ADMITTED THAT, IF IT RECOUPS AGAIN WHAT IT HAS ALREADY RECOUPED FROM
THE PUBLIC, THERE IS NO MACHINERY IN OR OUT OF COURT BY WHICH OTHERS
WHO HAVE PAID UNREASONABLE CHARGES TO IT CAN RECOVER.  FN11    UNDER
SUCH CIRCUMSTANCES, WE CONCLUDE THAT, SINCE THE CASE INVOLVES ONLY
ISSUES WHICH A FEDERAL COURT CANNOT DECIDE AND CAN ONLY REFER TO A BODY
WHICH ALSO WOULD HAVE NO INDEPENDENT JURISDICTION TO DECIDE, IT MUST
DECLINE THE CASE FORTHRIGHTLY RATHER THAN RESORT TO SUCH
IMPROVISATION. 

THE JUDGMENT BELOW IS AFFIRMED UPON THE GROUND THAT THE PETITIONER
HAS NOT ESTABLISHED A CAUSE OF ACTION.  IT IS SO ORDERED. 

FN1  41 STAT. 1063, 49 STAT. 838, 62 STAT. 275, 16 U.S.C. SECS. 791A
825R. 

FN2  28 U.S.C. SEC. 1331. 

FN3  28 U.S.C. SEC. 1337. 

FN4  NOT REPORTED. 

FN5  181 F.2D 19. 

FN6  SECTION 205(A) OF THE ACT, 49 STAT. 851, 16 U.S.C. SEC. 824D
(A), STATES THAT:  "ALL RATES AND CHARGES  ...  AND ALL RULES AND
REGULATIONS AFFECTING OR PERTAINING TO SUCH RATES OR CHARGES SHALL BE
JUST AND REASONABLE, AND ANY SUCH RATE OR CHARGE THAT IS NOT JUST AND
REASONABLE IS HEREBY DECLARED TO BE UNLAWFUL." 

FN7  SEC. 206(A), 49 STAT. 852, 16 U.S.C. SEC. 824E (A). 

FN8  SEC. 305, 49 STAT. 856, 16 U.S.C. SEC. 825D (B). 

FN9  S. REP. NO. 621, 74TH CONG., 1ST SESS. 20. 

FN10  BRIEF FOR THE FEDERAL POWER COMMISSION AS AMICUS CURIAE, PP. 13
14. 

FN11  ID., PP. 14-17. 

MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE BLACK, MR. JUSTICE
REED, AND MR. JUSTICE DOUGLAS, DISSENTING. 

THE PLAINTIFF, MONTANA-DAKOTA UTILITIES COMPANY, PETITIONER HERE, IS
THE SUCCESSOR IN INTEREST TO SEVERAL UTILITY COMPANIES WHICH
DISTRIBUTED ELECTRIC ENERGY IN NORTH AND SOUTH DAKOTA.  THE DEFENDANT,
NORTHWESTERN PUBLIC SERVICE COMPANY, SERVED THE REGION TO THE SOUTH OF
MONTANA-DAKOTA'S TERRITORY.  BOTH CORPORATIONS HAVE BEEN SUBJECT TO THE
FEDERAL POWER ACT SINCE ITS ENACTMENT IN 1935.  49 STAT. 847, 16 U.S.C.
SEC. 824 ET SEQ. THE CONTROVERSY ARISES OUT OF RELATIONS BETWEEN THE
TWO ENTERPRISES PRIOR TO 1945.  THE FACTS WHICH RAISE THE QUESTION
WHETHER THE FEDERAL DISTRICT COURT HAD JURISDICTION TO ENTERTAIN THE
SUIT MAY BE BRIEFLY SUMMARIZED. 

AFTER JANUARY 1, 1935, ALL BUT ONE OF MONTANA-DAKOTA'S DIRECTORS WERE
DIRECTORS OF NORTHWESTERN, AND ALL OF MONTANA-DAKOTA'S OFFICERS WERE
OFFICERS OF THE OTHER COMPANY.  THESE INTERLOCKING ARRANGEMENTS
RECEIVED FORMAL AUTHORIZATION BY THE FEDERAL POWER COMMISSION, AS
REQUIRED BY SEC. 305(B) OF THE ACT.  16 U.S.C. SEC. 825D (B).  AT
DIFFERENT TIMES BETWEEN 1935 AND 1945 CONTRACTS WERE MADE BETWEEN THE
TWO CORPORATIONS FOR THE SALE OF ELECTRIC ENERGY.  ALL SUCH AGREEMENTS
HAVE TO BE FILED WITH THE COMMISSION, SEC. 205(C), 16 U.S.C. SEC. 824D
(C), BUT THE LEGALITY OF RATES SO FILED IS NOT CONDITIONED UPON THE
COMMISSION'S APPROVAL.  UNLESS THEY ARE CHALLENGED, EITHER BY AN
INTERESTED PARTY OR ON THE COMMISSION'S INITIATIVE, THE FILED RATES
BECOME THE LEGAL RATES.  MONTANA-DAKOTA NOW CLAIMS, IN ESSENCE, THAT
FOR A DECADE NORTHWESTERN, BY VIRTUE OF ITS CONTROL, DEPRIVED MONTANA
DAKOTA OF THE RIGHTS WHICH THAT CORPORATION ENJOYED UNDER THE FEDERAL
POWER ACT AND PREVENTED IT FROM CONTEMPORANEOUSLY ASSERTING THEM BEFORE
THE FEDERAL POWER COMMISSION.  MONTANA-DAKOTA WAS PREVENTED FROM FILING
WHAT WOULD HAVE BEEN THE LAWFUL RATES BECAUSE NORTHWESTERN, AS THE
DOMINUS OF MONTANA-DAKOTA, FILED RATES FOR THAT COMPANY THAT WERE LESS
THAN THE REASONABLE RATES TO BE EXACTED UNDER THE FEDERAL POWER ACT -
RATES WHICH WOULD HAVE BEEN DETERMINED BY ARM'S LENGTH DEALING BETWEEN
THE TWO COMPANIES.  HAVING SECURED FREEDOM OF ACTION AND THEREBY THE
POWER TO ASSERT ITS RIGHTS, MONTANA-DAKOTA BROUGHT THIS SUIT IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA TO RECOUP
THE LOSSES WHICH IT CLAIMS WERE THUS IMPOSED ON IT. 

THE DEFENDANT MOVED TO DISMISS THE COMPLAINT FOR WANT OF JURISDICTION
IN THAT IT FAILED TO STATE A CLAIM UNDER FEDERAL LAW.  THE MOTION WAS
DENIED, 73 F.SUPP.  149, AND THE CASE WENT TO TRIAL.  THE DISTRICT
COURT FOUND UNFAIR DEALING IN THE CIRCUMSTANCES OF THE INTERLOCKING
RELATIONSHIP AND RESULTING UNREASONABLENESS IN THE RATES, AND GAVE
JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $779,958.30, PRINCIPAL AND
INTEREST. 

THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT REVERSED.  IT HELD THAT
THE FEDERAL POWER COMMISSION "HAD JURISDICTION AND WAS THE PROPER
TRIBUNAL IN THE FIRST INSTANCE" TO DETERMINE THE REASONABLENESS OF THE
RATES AND THE BEARING OF FRAUD PRACTICED ON THE COMMISSION IN SECURING
PERMISSION FOR THE INTERLOCKING ARRANGEMENTS AND THE RESULTING
SUBVERSION OF RIGHTS UNDER THE FEDERAL POWER ACT.  THE COURT FOUND THAT
"THE COMMISSION CAN, NO DOUBT, CORRECT ITS OWN MISTAKES," BUT IT DID
NOT SPECIFY THE ADMINISTRATIVE REMEDIES IT DEEMED AVAILABLE.  IT
CONCLUDED THAT THE DISTRICT COURT WAS WITHOUT POWER TO ENTERTAIN THE
COMPLAINT AND ORDERED IT DISMISSED.  181 F.2D 19, 23.  WE BROUGHT THE
CASE HERE SINCE IMPORTANT ISSUES IN THE ADMINISTRATION OF THE FEDERAL
POWER ACT ARE AT STAKE.  340 U.S. 806. 

THE DISTRICT COURTS OF THE UNITED STATES "EXCLUSIVE JURISDICTION OF
VIOLATIONS OF THIS ACT OR THE RULES, REGULATIONS, AND ORDERS
THEREUNDER, AND OF ALL SUITS IN EQUITY AND ACTIONS AT LAW BROUGHT TO
ENFORCE ANY LIABILITY OR DUTY CREATED BY, OR TO ENJOIN ANY VIOLATION
OF, THIS ACT OR ANY RULE, REGULATION, OR ORDER THEREUNDER."  49 STAT.
862, 16 U.S.C. SEC. 825P.  THERE CAN BE NO DOUBT, THEREFORE, THAT IF
THE COMPLAINT, FAIRLY CONSTRUED IN LIGHT OF THE SUCCESSFUL
DETERMINATION OF THE ISSUES, SEEKS TO ENFORCE A DUTY WHICH THE FEDERAL
POWER ACT RECOGNIZES, THE DISTRICT COURT PROPERLY ENTERTAINED THE SUIT
UNDER THE JURISDICTIONAL PROVISIONS OF THE ACT, REINFORCING, AS THEY
DO, THE GENERAL JURISDICTIONAL PROVISIONS GOVERNING THE DISTRICT
COURTS.  SEE ACT OF MARCH 3, 1911, SEC. 24 FIRST, EIGHTH, 36 STAT.
1091, 1092, 28 U.S.C. SECS. 1331, 1337. 

THE FEDERAL POWER ACT DIRECTS THAT 

"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, AND ANY SUCH RATE OR CHARGE THAT IS NOT JUST AND
REASONABLE IS HEREBY DECLARED TO BE UNLAWFUL."  SEC. 205(A), 49 STAT.
851, 16 U.S.C. SEC. 824D (A). 

WE FACE AT THE OUTSET THE CONTENTION THAT THIS SECTION CONFERS ON THE
FEDERAL POWER COMMISSION AUTHORITY TO AWARD REPARATIONS FOR
UNREASONABLE RATES COLLECTED IN THE PAST.  FEDERAL RAILROAD RATE
LEGISLATION GAVE SUCH A POWER TO THE INTERSTATE COMMERCE COMMISSION. 
ACT OF FEB. 4, 1887, SECS. 9, 16, 24 STAT. 382, 384-385, AS AMENDED, 49
U.S.C. SECS. 9, 16(1); CF. ACT OF AUG. 15, 1921, SEC. 308, 42 STAT.
165, 7 U.S.C. SEC. 209.  BUT IT WAS NOT GIVEN TO THE FEDERAL POWER
COMMISSION.  IT WAS WITHHELD DELIBERATELY.  SEE S. REP. NO. 621, 74TH
CONG., 1ST SESS. 20.  WHOLESALE CONSUMERS OF ELECTRIC ENERGY WERE
APPARENTLY CONSIDERED, AS A RULE, ADEQUATELY PROTECTED BY THE
PROVISIONS OF THE ACT AUTHORIZING THE COMMISSION TO GRANT PROSPECTIVE
RELIEF AND, IN CERTAIN CIRCUMSTANCES, TO ORDER REFUNDING OF SUMS
ACCUMULATED DURING THE PENDENCY OF RATE PROCEEDINGS.  SECS. 205(E),
206(A), 49 STAT. 852, 16 U.S.C. SECS. 824D (E), 824E (A).  DESPITE THE
UNQUALIFIED STATUTORY DECLARATION THAT UNREASONABLE RATES ARE UNLAWFUL,
WE THINK IT CLEAR THAT CONGRESS DID NOT INTEND EITHER COURT OR
COMMISSION TO HAVE THE POWER TO AWARD REPARATIONS ON THE GROUND THAT A
PROPERLY FILED RATE OR CHARGE HAS IN FACT BEEN UNREASONABLY HIGH OR
LOW.  IF THAT WERE ALL THE COMPLAINT BEFORE US SHOWED, WE WOULD AGREE
THAT RECOVERY OF DAMAGES IN A CIVIL ACTION WOULD NOT BE AN APPROPRIATE
REMEDY, AND THAT THE COMPLAINT SHOULD HAVE BEEN DISMISSED. 

BUT THE CASE BEFORE US IS VERY DIFFERENT.  MONTANA-DAKOTA DOES NOT
ASSERT MERELY THAT THE RATES FIXED AND FILED FOR IT BY THE DEFENDANT
WERE UNREASONABLE.  MONTANA-DAKOTA CLAIMED AND INTRODUCED EVIDENCE TO
SHOW THAT SOME CONTRACTS REQUIRED BY THE ACT TO BE FILED WERE NOT FILED
AT ALL; THAT OTHERS WERE FILED MONTHS LATE; AND THAT SOME WERE NOT THE
BONA FIDE CONTRACTS OBTAINED BY ARM'S LENGTH NEGOTIATION THAT ON THEIR
FACE THEY APPEARED TO BE, BUT INSTEAD WERE "CONCEIVED AND PUT INTO
OPERATION BY THE DEFENDANT AND ITS AFORESAID DIRECTORS AND OFFICERS FOR
THE PURPOSE OF EXACTING LARGE CHARGES FROM (MONTANA-DAKOTA) FOR THE
PURPOSE, AMONG OTHER THINGS, OF OFFSETTING CHARGES OF (MONTANA-DAKOTA)
FOR ELECTRICAL ENERGY GENERATED IN NORTH DAKOTA AND TRANSMITTED TO AND
SOLD TO DEFENDANT FOR RESALE IN SOUTH DAKOTA."  SEE CAUSE 3, $* V OF
THE COMPLAINT.  THUS THE COMPLAINT IN SUBSTANCE ALLEGES THAT
NORTHWESTERN MISLED THE COMMISSION INTO APPROVING SCHEDULES WHICH WOULD
NOT HAVE BEEN APPROVED HAD NORTHWESTERN COMPLIED WITH THE OBLIGATIONS
OF FULL AND FAIR DISCLOSURE IMPOSED ON IT BY THE FEDERAL POWER ACT. 
WHILE THE COMPLAINT DOES NOT ARTISTICALLY ALLEGE THAT DOMINATION BY
NORTHWESTERN PREVENTED MONTANA-DAKOTA FROM COMPLAINING TO THE
COMMISSION THAT THE RATES AND CHARGES WERE UNREASONABLE, THAT IS ITS
PLAIN IMPORT AND THE FACTS WERE SO FOUND AT THE TRIAL. 

WE ARE NOT HERE CONCERNED WITH THE COMPLAINT INSOFAR AS IT SETS FORTH
A COMMON-LAW CAUSE OF ACTION BASED ON MISUSE OF POWERS BY THE DIRECTORS
OF A CONTROLLED CORPORATION.  SUCH AN ACTION BY ITSELF OF COURSE CANNOT
BE BROUGHT IN A FEDERAL COURT IN THE ABSENCE OF DIVERSITY OF
CITIZENSHIP BETWEEN THE PARTIES.  BUT THIS DOES NOT PRECLUDE THE SAME
CIRCUMSTANCES FROM GIVING RISE TO A CAUSE OF ACTION THAT HAS ITS ROOTS
IN THE FEDERAL POWER ACT.  AS SUCH THE CONTROVERSY DOES FALL WITHIN THE
JURISDICTION OF A FEDERAL COURT.  THE ESSENCE OF THIS CAUSE OF ACTION
IS THAT THE FEDERAL POWER ACT IMPOSED ON NORTHWESTERN THE DUTY TO
CHARGE AND PAY REASONABLE RATES IN ITS TRANSACTIONS WITH MONTANA
DAKOTA; AND THAT WHILE UNDER THE ACT RATES APPROPRIATELY FILED ARE,
WHEN UNCHALLENGED, THE LEGAL RATES AND DEEMED TO BE REASONABLE, IN THE
CIRCUMSTANCES HERE ALLEGED THE SCHEDULES AND CONTRACTS FILED WERE NOT
COMPLETE OR TIMELY OR BONA FIDE.  SINCE IT WAS COERCIVELY CONTROLLED,
MONTANA-DAKOTA COULD NEITHER FILE RATES THAT WERE TRULY REASONABLE NOR
PROTEST UNREASONABLE RATES FILED ON ITS BEHALF. 

THE COURT OF APPEALS APPARENTLY CLOSED THE DOOR OF THE DISTRICT COURT
TO THIS SUIT ON THE ASSUMPTION THAT RELIEF COULD BE HAD FROM THE
FEDERAL POWER COMMISSION FOR THE DAMAGE FLOWING FROM VIOLATION OF THE
FEDERAL POWER ACT.  OF COURSE A COURT WOULD NOT GRANT RELIEF, AT LEAST
IN THE FIRST INSTANCE, IF AN ADEQUATE ADMINISTRATIVE REMEDY WERE
AVAILABLE.  IT IS FUNDAMENTAL TO FEDERAL REGULATORY LEGISLATION THAT
"NO ONE IS ENTITLED TO JUDICIAL RELIEF FOR A SUPPOSED OR THREATENED
INJURY UNTIL THE PRESCRIBED ADMINISTRATIVE REMEDY HAS BEEN EXHAUSTED." 
MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, 50-51.  THIS
PRINCIPLE IS PARTICULARLY RELEVANT TO RATE REGULATION.  TEXAS & PAC. R.
CO. V. ABILENE COTTON OIL CO., 204 U.S. 426; MITCHELL COAL CO. V.
PENNSYLVANIA R. CO., 230 U.S. 247; ARMOUR & CO. V. ALTON R. CO., 312
U.S. 195.  COMPARE GREAT NORTHERN R. CO. V. MERCHANTS ELEVATOR CO., 259
U.S. 285. 

BUT WE DO NOT FIND THAT THE FEDERAL POWER ACT PROVIDES ADMINISTRATIVE
REMEDIES TO MEET THE SITUATION BEFORE US.  WE HAVE SEEN THAT THAT ACT
DOES NOT AUTHORIZE THE COMMISSION TO AWARD REPARATIONS TO THOSE
SUBJECTED TO UNREASONABLE RATES.  THE ACT LIKEWISE DOES NOT AFFORD TO
THE COMMISSION THE AUTHORITY CONFERRED ON ADMINISTRATIVE AGENCIES UNDER
OTHER REGULATORY STATUTES TO AWARD DAMAGES TO THOSE INJURED BY
VIOLATIONS OF THE ACT.  COMPARE ACT OF FEBRUARY 4, 1887, SEC. 9, 24
STAT. 382, 49 U.S.C. SEC. 9; ACT OF AUGUST 15, 1921, SEC. 309(E), 42
STAT. 166, 7 U.S.C. SEC. 210(E).  THE POWER ACT, IT IS TRUE, DOES GIVE
THE COMMISSION AUTHORITY TO LOOK INTO PAST RATES IN ORDER TO DETERMINE
WHETHER THE ACT HAS BEEN VIOLATED.  SEC. 307(A), 49 STAT. 856, 16
U.S.C. SEC. 825F (A).  SEE ATLANTIC COAST LINE R. CO. V. FLORIDA, 295
U.S. 301, 312.  BUT SUCH AN INQUIRY CANNOT BE MADE THE BASIS FOR AN
ADMINISTRATIVE AWARD OF DAMAGES TO THE VICTIMS OF THE VIOLATIONS. 
AGAIN, THE COMMISSION MAY, AS THE GOVERNMENT SUGGESTS, HAVE POWER UNDER
THE OMNIBUS PROVISIONS OF SEC. 309 TO VACATE ITS APPROVAL OF A RATE
WHEN APPROVAL HAS BEEN OBTAINED BY FRAUD.  49 STAT. 858, 16 U.S.C. SEC.
825H.  BUT THIS DOES NOT AUTHORIZE THE COMMISSION TO FIX RATE ORDERS
RETROSPECTIVELY.  THE COMMISSION MAY ESTABLISH RATES ONLY "TO BE
THEREAFTER OBSERVED AND IN FORCE."  SEC. 206(A), 49 STAT. 852, 16
U.S.C. SEC. 824E (A). 

IF THE COMMISSION CAN NEITHER FIX RATES RETROSPECTIVELY NOR AWARD
DAMAGES, IT CLEARLY CAN AFFORD NO ADEQUATE REMEDY TO MONTANA-DAKOTA. 
VACATING ITS ACQUIESCENCE IN THE INTERLOCKING DIRECTORATE OR IN THE
SCHEDULES FILED BY NORTHWESTERN MIGHT PREVENT NORTHWESTERN FROM
ASSERTING THE APPROVAL OF THE FEDERAL AGENCY IN AN ACTION BROUGHT
AGAINST IT UNDER STATE LAW; BUT IT WOULD NOT PROVIDE A BASIS FOR
RECOVERY BY THE INJURED PARTY OR IMPOSE ANY CERTAIN LIABILITY ON THE
WRONGDOER.  WE ARE BOUND TO CONCLUDE THAT THE COURT OF APPEALS WAS IN
ERROR IN THINKING THAT AN ADEQUATE ADMINISTRATIVE REMEDY EXISTED AND
PRECLUDED COURTS FROM GRANTING RELIEF. 

BUT WE CANNOT AGREE THAT THE INABILITY OF THE FEDERAL POWER
COMMISSION TO GRANT RELIEF REQUIRES THAT COURTS BE SIMILARLY DISABLED. 
COURTS, UNLIKE ADMINISTRATIVE AGENCIES, ARE ORGANS WITH HISTORIC
ANTECEDENTS WHICH BRING WITH THEM WELL-DEFINED POWERS.  THEY DO NOT
REQUIRE EXPLICIT STATUTORY AUTHORIZATION FOR FAMILIAR REMEDIES TO
ENFORCE STATUTORY OBLIGATIONS.  TEXAS & N.O.R. CO. V. BROTHERHOOD OF
CLERKS, 281 U.S. 548; VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S.
515; DECKERT V. INDEPENDENCE SHARES CORP., 311 U.S. 282.  A DUTY
DECLARED BY CONGRESS DOES NOT EVAPORATE FOR WANT OF A FORMULATED
SANCTION.  WHEN CONGRESS HAS "LEFT THE MATTER AT LARGE FOR JUDICIAL
DETERMINATION," OUR FUNCTION IS TO DECIDE WHAT REMEDIES ARE APPROPRIATE
IN THE LIGHT OF THE STATUTORY LANGUAGE AND PURPOSE AND OF THE
TRADITIONAL MODES BY WHICH COURTS COMPEL PERFORMANCE OF LEGAL
OBLIGATIONS.  SEE BOARD OF COMM'RS V. UNITED STATES, 308 U.S. 343,
351.  IF CIVIL LIABILITY IS APPROPRIATE TO EFFECTUATE THE PURPOSES OF A
STATUTE, COURTS ARE NOT DENIED THIS TRADITIONAL REMEDY BECAUSE IT IS
NOT SPECIFICALLY AUTHORIZED.  TEXAS & PAC. R. CO. V. RIGSBY, 241 U.S.
33; STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192; TUNSTALL V.
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 323 U.S. 210; CF. DE
LIMA V. BIDWELL, 182 U.S. 1. 

THAT CIVIL LIABILITY IS AN APPROPRIATE REMEDY IN THE SITUATION BEFORE
US IS ATTESTED ALIKE BY THE WORDS OF THE STATUTE, BY THE FORCE OF
FAMILIAR PRINCIPLES OF LIABILITY, AND BY PRACTICAL CONSIDERATIONS IN
CARRYING OUT LEGISLATIVE OBJECTIVES. 

THE POWER ACT IS EXPLICIT THAT ANY "RATE OR CHARGE THAT IS NOT JUST
AND REASONABLE IS HEREBY DECLARED TO BE UNLAWFUL."  SEC. 205(A), 49
STAT. 851, 16 U.S.C. SEC. 824D (A).  THE AIM OF CONGRESS WOULD BE
NEEDLESSLY ABORTED IF THIS "DEFINITE STATUTORY PROHIBITION OF CONDUCT"
DID NOT IMPOSE CIVIL LIABILITY IN A SITUATION NOT COVERED BY
ADMINISTRATIVE REMEDIES MERELY BECAUSE NO JUDICIAL RELIEF WAS
EXPLICITLY AUTHORIZED.  COMPARE TEXAS & N.O.R. CO. V. BROTHERHOOD OF
CLERKS, SUPRA, AT 568.  THE RIGHT OF CIVIL RECOVERY BY PERSONS
COMPELLED TO PAY UNREASONABLE OR DISCRIMINATORY RATES TO COMMON
CARRIERS IS ONE OF THE OLDEST FORMS OF RELIEF IN OUR LAW.  WESTERN
UNION TEL. CO. V. CALL PUBLISHING CO., 181 U.S. 92.  TO ENFORCE A
REMEDY FOR COLLECTION OF UNREASONABLE CHARGES IN THE SITUATION BEFORE
US, THEREFORE, WOULD RECOGNIZE DEEPLY-ROOTED LAW; TO DENY IT WOULD BE
INCONSISTENT WITH LONG-ESTABLISHED JUDICIAL PRACTICE.  THE EXPERIENCE
OF THE COMMISSION INDICATES THAT THE STATUTE ITSELF, BY VIRTUE OF THE
POSITIVE DUTIES IT COMMANDS, UNDER NORMAL CIRCUMSTANCES IS VERY LARGELY
ITS OWN SANCTION.  FN1  WANT OF EXPLICITNESS IN PROVIDING A FAMILIAR
REMEDY FOR THE RARE CASE OF DISOBEDIENCE SHOULD NOT BE CONSTRUED A
DENIAL OF IT. 

TO LEAVE RELIEF TO THE DIVERSE AND CONFLICTING STATE LAW DEALING WITH
INTERCORPORATE RELATIONS WOULD MAKE FOR CONFLICTING LOCAL
ADMINISTRATION OF AN IMPORTANT NATIONAL PROBLEM.  THIS COURT HAS
RECENTLY SHOWN MARKED RELUCTANCE TO LEAVE TO THE STATES DETERMINATION
OF EVEN STATE LAW QUESTIONS INVOLVED IN THE ADMINISTRATION OF THE
FEDERAL POWER ACT.  FIRST IOWA COOPERATIVE V. FEDERAL POWER COMMISSION,
328 U.S. 152.  WHAT IS INVOLVED HERE - THE FRUSTRATION, BY MISUSE OF
THE MACHINERY OF THE FEDERAL POWER ACT, OF THE COMMAND OF CONGRESS THAT
RATES BE REASONABLE - HAS A FEDERAL CHARACTER AND SIGNIFICANCE.  WE DO
NOT THINK IT LIKELY THAT CONGRESS INTENDED THAT THERE SHOULD BE NO
RELIEF FOR THIS KIND OF TAMPERING WITH THE FEDERAL REGULATORY SCHEME
OTHER THAN THAT WHICH MIGHT BE AFFORDED BY THE CORPORATION LAW OF THE
FORTY-EIGHT STATES. 

WE COULD ATTRIBUTE SUCH A PURPOSE TO CONGRESS ONLY IF TO ALLOW CIVIL
RELIEF IN THE SITUATION BEFORE US WOULD INTERFERE WITH THE
ADMINISTRATIVE REMEDIES CONTEMPLATED UNDER THE ACT, OR IMPOSE ON COURTS
ALIEN RESPONSIBILITIES OR DUTIES THEY ARE NOT EQUIPPED TO FULFILL.  NO
SUCH CONSEQUENCE IS REMOTELY INVOLVED IN UTILIZING THIS AGE-OLD
REMEDY.  THE STATUTE IS BASED ON THE ASSUMPTION THAT UNLAWFUL RATES
WILL ORDINARILY BE PROMPTLY CORRECTED AT THE INITIATIVE OF INJURED
PARTIES PERMITTED TO RESORT TO THE COMMISSION FOR PROSPECTIVE RELIEF. 
SEC. 306, 49 STAT. 856, 16 U.S.C. SEC. 825E.  THAT PROCEDURE IS NOT
AVAILABLE WHEN THE WRONG ASSERTED IS THAT THE DEFENDANT CORPORATION HAS
ESTABLISHED UNLAWFUL SCHEDULES BY FRAUDULENT DOMINATION OF THE UTILITY
WITH WHICH IT TRANSACTS BUSINESS.  TO GRANT JUDICIAL RELIEF FOR SUCH A
WRONG WILL NOT INTERFERE WITH THE REMEDIAL PROCEDURE TO WHICH THE ACT
CONFINES CORPORATIONS WHICH ARE THEIR OWN MASTERS. 

NOR WILL IT TRANSFER TO THE COURTS RESPONSIBILITY FOR DECIDING
QUESTIONS WHICH SHOULD PROPERLY BE PRESENTED TO THE POWER COMMISSION. 
IN A VARIETY OF SITUATIONS WE HAVE RECENTLY EMPHASIZED THE PRINCIPLE
THAT COURTS AND AGENCIES "ARE TO BE DEEMED COLLABORATIVE
INSTRUMENTALITIES OF JUSTICE."  UNITED STATES V. MORGAN, 313 U.S. 409,
422, 307 U.S. 183; PALMER V. MASSACHUSETTS, 308 U.S. 79.  TO THAT END
IT IS ESTABLISHED PRACTICE THAT COURTS MAY ENTERTAIN ACTIONS BROUGHT
BEFORE THEM, BUT CALL TO THEIR AID THE APPROPRIATE ADMINISTRATIVE
AGENCY ON QUESTIONS WITHIN ITS ADMINISTRATIVE COMPETENCE.  SEE SMITH V.
HOBOKEN R. CO., 328 U.S. 123; THOMPSON V. TEXAS MEXICAN R. CO., 328
U.S. 134; CF. UNITED STATES ALKALI ASSN. V. UNITED STATES, 325 U.S.
196, 210.  IN THE EL DORADO OIL WORKS LITIGATION WE HELD THAT PROPER
PROCEDURE REQUIRED THE DISTRICT COURT TO ENTERTAIN A SUIT ON A CONTRACT
BUT TO LOOK TO THE INTERSTATE COMMERCE COMMISSION FOR GUIDANCE AS TO
TRANSPORTATION PRACTICES INVOLVED IN CARRYING OUT THE CONTRACT. 
GENERAL AMERICAN TANK CAR CORP. V. EL DORADO TERMINAL CO., 308 U.S.
422, 433; EL DORADO OIL WORKS V. UNITED STATES, 328 U.S. 12.  THE FACT
THAT THE FEDERAL POWER COMMISSION IS NOT ITSELF AUTHORIZED TO AWARD
DAMAGES DOES NOT DISABLE IT FROM ADVISING A COURT ON QUESTIONS ON WHICH
ITS JUDGMENT IS NEEDED.  SEE UNITED STATES V. MORGAN, SUPRA; ATLANTIC
COAST LINE R. CO. V. FLORIDA, SUPRA, AT 312.  WE SEE NO REASON WHY THE
COMMISSION'S FINDINGS SHOULD NOT BE SOUGHT HERE. 

WE THINK, THEREFORE, THAT A CAUSE OF ACTION WITHIN THE JURISDICTION
OF THE DISTRICT COURTS IS STATED BY A COMPLAINT CHARGING A DISTRIBUTOR
OF ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE (1) WITH BUYING
OR SELLING AT UNREASONABLE RATES, (2) WITH FAILURE TO COMPLY WITH
PROCEDURAL REQUIREMENTS OF THE FEDERAL POWER ACT, AND (3) WITH
PREVENTING OTHERS FROM RESORTING TO THE REMEDIES AFFORDED BY THAT ACT. 
IN SUCH CASES THE DISTRICT COURT SHOULD STAY PROCEEDINGS AND REQUEST
DETERMINATION BY THE FEDERAL POWER COMMISSION OF MATTERS WITHIN THE
COMMISSION'S SPECIAL COMPETENCE.  IT IS WITHIN THE COMMISSION'S DOMAIN
TO RULE WHETHER FILED RATES SHOULD NOT, IN VIEW OF ALL RELEVANT
CIRCUMSTANCES, BE CONSIDERED "REASONABLE" RATES.  IT ALSO FALLS TO THE
COMMISSION TO DECIDE WHAT WOULD HAVE BEEN THE REASONABLE RATES.  THE
OPINION OF THE COMMISSION, BEING "ONLY A PRELIMINARY, INTERIM STEP"
TOWARDS FINAL JUDGMENT, WOULD NOT BE A REVIEWABLE ORDER UNDER SEC.
313(B) OF THE ACT, BUT WOULD BE REVIEWED ONLY AS A PART OF THE JUDGMENT
ENTERED BY THE DISTRICT COURT.  FEDERAL POWER COMM'N V. HOPE NATURAL
GAS CO., 320 U.S. 591, 618, 619. 

THE OBJECTIONS RAISED TO THIS PROCEDURE HAVE APPARENTLY NOT BEEN
CONSIDERED SUBSTANTIAL BY THE FEDERAL POWER COMMISSION, THE BODY
PRIMARILY CHARGED WITH ADMINISTRATION OF THE ACT.  FN2  WE DO NOT THINK
THEY SHOULD PREVAIL.  THE FUNCTION OF THE DISTRICT COURT IS NOT SIMPLY
TO SERVE AS A FACADE BEHIND WHICH THE COMMISSION IS ENABLED TO
ACCOMPLISH INDIRECTLY WHAT IT CANNOT DO DIRECTLY.  CERTAIN ISSUES OF
FACT - THE COMPLETENESS OF DISCLOSURE, FOR INSTANCE, OR THE LOYALTIES
OF THE DIRECTORS - ARE PROPERLY FOR THE COURT.  ACTION BY THE COURT MAY
SIMILARLY BE REQUIRED IN DETERMINING THE APPROPRIATE DISPOSITION OF THE
FUND.  SEE FEDERAL POWER COMM'N V. INTERSTATE NATURAL GAS CO., 336 U.S.
577, 181 F.2D 833.  RECOVERY BY MONTANA-DAKOTA NEED NOT BE A WINDFALL
TO THAT COMPANY.  MANY CHANGES IN COSTS CHARGED UTILITIES ARE NOT
REFLECTED IN PRICES THEY MAY COLLECT.  COMPARE ST. LOUIS & O'FALLON R.
CO. V. UNITED STATES, 279 U.S. 461, 488, 505-509(MR. JUSTICE BRANDEIS,
DISSENTING).  TO THE EXTENT THAT MONTANA-DAKOTA HAS PASSED ON ITS LOSS
TO ITS CUSTOMERS, THEY MAY BE PERMITTED RECOVERY FROM IT ON WELL
ESTABLISHED PRINCIPLES OF UNJUST ENRICHMENT.  AND EVEN IF THE EFFECT OF
AWARDING RELIEF IS ULTIMATELY TO BENEFIT MONTANA-DAKOTA, IT CERTAINLY
HAS A BETTER CLAIM TO THE EXACTED FUNDS THAN NORTHWESTERN.  THE
PROCEDURE HERE OUTLINED IS NOT UNLIKE THAT WHICH THE COURT EMPLOYED IN
UNITED STATES V. MORGAN, SUPRA, WHERE A SIMILAR DEMAND WAS MADE ON THE
RESOURCEFULNESS OF LAW TO FIND A REMEDY TO MEET AN UNUSUAL SITUATION. 
SUCH A REMEDY NOT ONLY DEFEATS UNJUST ENRICHMENT AS BETWEEN PRIVATE
PARTIES.  THIS IS ACCOMPLISHED IN THE PUBLIC INTEREST OF EFFECTUATING
THE FEDERAL POWER ACT. 

BECAUSE WE CONCLUDE THAT THE DISTRICT COURT, WHILE CORRECT IN
REFUSING TO DISMISS THE COMPLAINT, SHOULD HAVE ASKED THE FEDERAL POWER
COMMISSION TO DETERMINE MATTERS PECULIARLY WITHIN ITS COMPETENCE AND
REPORT ITS FINDING TO THAT COURT, WE THINK THE CASE SHOULD BE REMANDED
TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  WE DO NOT, OF COURSE, INTIMATE ANY OPINION AS TO THE
SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONCLUSION THAT THE FILED
RATES IN THIS CASE SHOULD NOT BE DEEMED LAWFUL.  NOR WOULD WE RESTRICT
ANY APPROPRIATE USE THE COMMISSION MIGHT WISH TO MAKE OF EVIDENCE
ADDUCED AT THE TRIAL. 

FN1  DATA SUPPLIED BY THE COMMISSION SHOW THAT RATE REDUCTIONS
PROPOSED BY UTILITIES INVARIABLY BECOME EFFECTIVE AS FILED.  MORE THAN
HALF OF THE RATE INCREASES LIKEWISE BECOME EFFECTIVE AUTOMATICALLY AS
FILED.  THOSE WHICH ARE SUSPENDED BY THE COMMISSION ARE AS A GENERAL
RULE WITHDRAWN, MODIFIED, OR APPROVED AFTER INFORMAL CONFERENCES
BETWEEN THE PARTIES AND THE COMMISSION'S STAFF. 

FN2  IN ITS BRIEF HERE THE COMMISSION URGED ADOPTION OF SUBSTANTIALLY
THE GROUND SET FORTH IN THIS OPINION. 
..END :









MOSSER V. DARROW, 341 U.S. 267 


NO. 461.  ARGUED APRIL 10-11, 1951.  - DECIDED MAY 7, 1951.  - 184 F.2D
1, REVERSED. 


1.  RESPONDENT WAS APPOINTED BY A FEDERAL DISTRICT COURT AS
REORGANIZATION TRUSTEE FOR TWO COMMON-LAW TRUSTS WHOSE PRINCIPAL ASSETS
WERE SECURITIES OF SUBSIDIARY COMPANIES.  HE EMPLOYED TO ASSIST HIM IN
THE TRUSTEESHIP TWO PERSONS WHOSE SERVICES HE THOUGHT WERE
INDISPENSABLE, AND HE EXPRESSLY AGREED THAT THEY COULD CONTINUE TO
TRADE IN SECURITIES OF THE DEBTORS' SUBSIDIARIES.  ALTHOUGH RESPONDENT
DID NOT PERSONALLY BENEFIT, THESE EMPLOYEES TRADED EXTENSIVELY IN
SECURITIES OF THE DEBTORS' SUBSIDIARIES AND MADE SUBSTANTIAL PROFITS. 
HELD:  RESPONDENT WAS PROPERLY SURCHARGED AS TRUSTEE IN AN AMOUNT
REPRESENTING THE PROFITS WHICH THESE EMPLOYEES DERIVED FROM THEIR
TRADING IN SECURITIES OF THE DEBTORS' SUBSIDIARIES.  PP. 268-275. 

(A)  THAT WHICH THE TRUSTEE HAD NO RIGHT TO DO HE HAD NO RIGHT TO
AUTHORIZE, AND THE TRANSACTIONS WERE AS FORBIDDEN FOR BENEFIT OF OTHERS
AS THEY WOULD HAVE BEEN ON BEHALF OF THE TRUSTEE HIMSELF.  PP. 271
272. 

(B)  THE LIABILITY HERE IS NOT CREATED BY A FAILURE TO DETECT
DEFALCATIONS, IN WHICH CASE NEGLIGENCE MIGHT BE REQUIRED TO SURCHARGE A
TRUSTEE, BUT IS A CASE OF A WILLFUL AND DELIBERATE SETTING UP OF AN
INTEREST IN EMPLOYEES ADVERSE TO THAT OF THE TRUST.  P. 272. 

(C)  THE MOST EFFECTIVE SANCTION FOR GOOD ADMINISTRATION BY A
BANKRUPTCY TRUSTEE IS PERSONAL LIABILITY FOR THE CONSEQUENCES OF
FORBIDDEN ACTS; AND A TRUSTEE MAY EFFECTIVELY PROTECT HIMSELF AGAINST
PERSONAL LIABILITY BY ACCOUNTING AT PROMPT INTERVALS AND BY SEEKING
INSTRUCTIONS FROM THE COURT AS TO MATTERS WHICH INVOLVE DIFFICULT
QUESTIONS OF JUDGMENT.  PP. 273-275. 

2.  FROM A JUDGMENT REVERSING AN ORDER OF THE DISTRICT COURT
SURCHARGING A FORMER REORGANIZATION TRUSTEE, A PETITION FOR CERTIORARI
WAS FILED IN THIS COURT BY ONE WHO HAD ALREADY RESIGNED AS SUCCESSOR
TRUSTEE, AND WHO WAS JOINED IN THE PETITION BY AN INDENTURE TRUSTEE. 
HELD:  THE INDENTURE TRUSTEE'S STANDING IS EXPRESSLY AUTHORIZED BY 52
STAT. 894, 11 U.S.C. SEC. 606; AND THE SUBSTITUTION OF A SUBSEQUENTLY
APPOINTED SUCCESSOR TRUSTEE IS AUTHORIZED.  PP. 270-271. 

(A)  SUCCESSOR TRUSTEES, UNLIKE SUCCESSORS OF PUBLIC OFFICERS, ARE
REGARDED AS TRANSFEREES OR ASSIGNEES OF ALL THE INTERESTS OF THEIR
PREDECESSORS, AND REMOVAL OF A TRUSTEE DOES NOT CAUSE ABATEMENT.  P.
271. 

MOSSER, SUCCESSOR TRUSTEE, ET AL. V. DARROW, FORMER TRUSTEE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

AN ORDER OF THE DISTRICT COURT SURCHARGING A REORGANIZATION TRUSTEE
WAS REVERSED BY THE COURT OF APPEALS.  184 F.2D 1.  THIS COURT GRANTED
CERTIORARI.  340 U.S. 928.  REVERSED AND REMANDED, P. 275. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION HERE CONCERNS PERSONAL LIABILITY OF A
REORGANIZATION TRUSTEE WHO, ALTHOUGH MAKING NO PERSONAL PROFIT,
PERMITTED KEY EMPLOYEES TO PROFIT FROM TRADING IN SECURITIES OF THE
DEBTORS' SUBSIDIARIES.  UPON A LONG RECORD, CONTROLLING FACTS HAVE BEEN
FOUND WITH LITTLE DISAGREEMENT. 

IN 1935, THE UNITED STATES DISTRICT COURT APPOINTED RESPONDENT DARROW
AS REORGANIZATION TRUSTEE FOR TWO COMMON-LAW TRUSTS.  THESE HAD
FUNCTIONED AS HOLDING COMPANIES AND THEIR PRINCIPAL ASSETS WERE THE
SECURITIES OF TWENTY-SEVEN UNDERLYING COMPANIES, EACH OF WHICH OWNED
IMPROVED REAL ESTATE AND HAD ITS OWN DEBT AND CAPITAL STRUCTURE.  BOTH
THE SUBSIDIARY COMPANIES AND THE TWO TRUSTS HAD BEEN PROMOTED BY JACOB
KULP AND MYRTLE JOHNSON, WHO THOROUGHLY KNEW THE INSIDE OF THE BUSINESS
AND WERE ACQUAINTED WITH MANY OF THE INVESTORS.  THE TANGLED FINANCIAL
HISTORY LEADING TO THE REORGANIZATION IS NOT IMPORTANT TO OUR ISSUE. 

DARROW EMPLOYED KULP AND MISS JOHNSON TO ASSIST IN HIS TRUSTEESHIP. 
THAT THEY WERE COMPETENT AND USEFUL IS UNDENIED.  KULP MANAGED THE
PHYSICAL PROPERTIES WHILE MISS JOHNSON SUPERVISED THE OFFICE, HAD
COMPLETE CHARGE OF ALL RECORDS OF INCOME, EXPENDITURES AND PROPERTIES
OF BOTH DEBTORS AND ALL UNDERLYING COMPANIES.  DARROW DECIDED UPON A
POLICY OF BUYING IN BONDS OF THE SUBSIDIARIES FOR RETIREMENT, WHERE
THEY WERE AVAILABLE AT A DISCOUNT, AND DURING HIS TRUSTEESHIP REDUCED
THE OUTSTANDING BONDS OF SUBSIDIARIES BY THIS METHOD BY ABOUT TWO AND
ONE-HALF MILLION DOLLARS.  DARROW DEPENDED UPON MISS JOHNSON'S JUDGMENT
AND ADVICE IN ALLOCATING FUNDS FOR SINKING FUND OPERATIONS, IN HIS
PURCHASE OF SECURITIES AND IN FIXING PRICES TO BE OFFERED. 

KULP AND MISS JOHNSON WERE EMPLOYED BY DARROW WITH THE EXPRESS
AGREEMENT THAT THEY COULD CONTINUE TO TRADE IN SECURITIES OF THE
DEBTORS' SUBSIDIARIES PERSONALLY AND THROUGH COLONIAL SECURITIES
CORPORATION, WHICH THEY OWNED.  WITHOUT SUCH CONSENT THEY STATED THEY
WOULD NOT HAVE REMAINED.  DARROW AND COLONIAL FOR A CONSIDERABLE PERIOD
SHARED OFFICE FACILITIES AND PERSONNEL, WITH MISS JOHNSON IN CHARGE
BOTH OF THE TRUSTEE'S OFFICE, WHICH WAS INTERESTED IN THE PURCHASE OF
BONDS, AND HER OWN COLONIAL, INTERESTED IN THE SAME THING. 

MISS JOHNSON AND KULP, DURING THEIR EMPLOYMENT BY THE TRUSTEE, TRADED
EXTENSIVELY IN BONDS OF THE SUBSIDIARY COMPANIES.  ON MANY OCCASIONS
THEY ACQUIRED BONDS FOR THEMSELVES AND ON THE SAME DAY, OR WITHIN A FEW
DAYS, TRANSFERRED THEM TO DARROW AT A PROFIT.  DARROW PAID FOR SOME
SECURITIES IN ADVANCE OF THEIR DELIVERY TO HIM AND FOR SOME EVEN BEFORE
MISS JOHNSON HAD MADE HER OWN PURCHASE OF THEM.  JOHNSON AND KULP
SOMETIMES BOUGHT FOR THEMSELVES BONDS OFFERED BY BONDHOLDERS WHO HAD
COME TO THE TRUSTEE'S OFFICE TO DISPOSE OF THEM TO THE TRUSTEE.  THEY
MADE SUBSTANTIAL PROFITS THROUGH THESE TRANSACTIONS. 

IN HIS EIGHT YEARS OF TRUSTEESHIP, DARROW FILED BUT ONE ACCOUNT FOR
ONE OF THE DEBTOR-CORPORATIONS AND NONE FOR THE OTHER.  THE SECURITIES
AND EXCHANGE COMMISSION INTERVENED AND DEMANDED INVESTIGATION OF HIS
CONDUCT OF THE TRUST AND THEREAFTER HE RESIGNED AND FILED HIS ACCOUNTS,
WHICH WERE MET WITH OBJECTIONS BY HIS SUCCESSOR TRUSTEE.  THESE ISSUES
WERE REFERRED TO A SPECIAL MASTER, WHO HEARD A LONG CONTEST OVER THE
FOREGOING AND MANY OTHER ITEMS UNIMPORTANT HERE.  THE MASTER
RECOMMENDED A SURCHARGE ON ACCOUNT OF THE FOREGOING CONDUCT.  THE
MASTER'S REPORT WAS REVIEWED BY THE DISTRICT COURT, WHICH CONCLUDED
THAT THE EVIDENCE SUPPORTED THE FINDINGS AND RECOMMENDATIONS AND
SURCHARGED THE TRUSTEE IN THE AMOUNT OF $43,447.46, RESERVING SOME
QUESTIONS FOR LATER CONSIDERATION.  DARROW APPEALED AND THE COURT OF
APPEALS REVERSED THE DECISION OF THE DISTRICT COURT, FOR REASONS THAT
WE WILL LATER CONSIDER.  184 F.2D 1.  WE CONCLUDE THAT THE DISTRICT
COURT WAS CORRECT AND THE DECISION OF THE COURT OF APPEALS CANNOT
STAND. 

AT THE OUTSET WE ARE MET WITH A JURISDICTIONAL OBJECTION.  RESPONDENT
CONTENDS THAT WE ARE POWERLESS TO GRANT A MOTION TO SUBSTITUTE PARTIES
BECAUSE THE PETITION FOR THE WRIT OF CERTIORARI IS JURISDICTIONALLY
DEFECTIVE IN THAT IT IS FILED IN THE NAME OF STACY MOSSER, A RESIGNED
TRUSTEE.  IT IS FURTHER CONTENDED THAT JOHN W. GUILD, THE OTHER NAMED
PETITIONER, IS WITHOUT STANDING TO SEEK REVIEW BECAUSE HE IS ONLY AN
INDENTURE TRUSTEE.  BOTH CONTENTIONS ARE ERRONEOUS. 

AN INDENTURE TRUSTEE'S STANDING IS EXPRESSLY AUTHORIZED BY 52 STAT.
894, 11 U.S.C. SEC. 606, WHICH PROVIDES, "THE DEBTOR, THE INDENTURE
TRUSTEES, AND ANY CREDITOR OR STOCKHOLDER OF THE DEBTOR SHALL HAVE THE
RIGHT TO BE HEARD ON ALL MATTERS ARISING IN A PROCEEDING UNDER THIS
CHAPTER."  AND RESPONDENT, IN OPPOSING THE MOTION TO SUBSTITUTE,
ERRONEOUSLY RELIES ON CASES INVOLVING GOVERNMENT OFFICERS.  DAVIS V.
PRESTON, 280 U.S. 406; SNYDER V. BUCK, 340 U.S. 15.  SUCCESSOR
TRUSTEES, UNLIKE SUCCESSORS OF PUBLIC OFFICERS, ARE REGARDED AS
TRANSFEREES OR ASSIGNEES OF ALL THE INTERESTS OF THEIR PREDECESSOR, AND
REMOVAL OF A TRUSTEE DOES NOT CAUSE ABATEMENT.  52 STAT. 840, 860, 11
U.S.C. SEC. 74.  WE HOLD, IN ACCORD WITH BOWDEN V. JOHNSON, 107 U.S.
251, 264, THAT SUBSTITUTION IS FULLY AUTHORIZED AND PROPER IN THESE
CIRCUMSTANCES AND ACCORDINGLY TURN TO THE MERITS. 

THIS WAS A STRICT TRUSTEESHIP, NOT ONE OF THOSE QUASITRUSTEESHIPS IN
WHICH SELF-INTEREST AND REPRESENTATIVE INTERESTS ARE COMBINED.  A
REORGANIZATION TRUSTEE IS THE REPRESENTATIVE OF THE COURT AND IT IS NOT
CONTENDED AND WOULD NOT BE ARGUABLE THAT IF HE HAD ENGAGED FOR HIS OWN
ADVANTAGE IN THE SAME TRANSACTIONS THAT HE AUTHORIZED ON THE PART OF
HIS SUBORDINATES HE SHOULD NOT BE SURCHARGED.  EQUITY TOLERATES IN
BANKRUPTCY TRUSTEES NO INTEREST ADVERSE TO THE TRUST.  THIS IS NOT
BECAUSE SUCH INTERESTS ARE ALWAYS CORRUPT BUT BECAUSE THEY ARE ALWAYS
CORRUPTING.  BY ITS EXCLUSION OF THE TRUSTEE FROM ANY PERSONAL
INTEREST, IT SEEKS TO AVOID SUCH DELICATE INQUIRIES AS WE HAVE HERE
INTO THE CONDUCT OF ITS OWN APPOINTEES BY EXACTING FROM THEM
FORBEARANCE OF ALL OPPORTUNITIES TO ADVANCE SELF-INTEREST THAT MIGHT
BRING THE DISINTERESTEDNESS OF THEIR ADMINISTRATION INTO QUESTION. 

THESE STRICT PROHIBITIONS WOULD SERVE LITTLE PURPOSE IF THE TRUSTEE
WERE FREE TO AUTHORIZE OTHERS TO DO WHAT HE IS FORBIDDEN.  WHILE THERE
IS NO CHARGE OF IT HERE, IT IS OBVIOUS THAT THIS WOULD OPEN UP
OPPORTUNITIES FOR DEVIOUS DEALINGS IN THE NAME OF OTHERS THAT THE
TRUSTEE COULD NOT CONDUCT IN HIS OWN.  THE MOTIVES OF MAN ARE TOO
COMPLEX FOR EQUITY TO SEPARATE IN THE CASE OF ITS TRUSTEES THE MOTIVE
OF ACQUIRING EFFICIENT HELP FROM MOTIVES OF FAVORING HELP, FOR ANY
REASON AT ALL OR FROM ANTICIPATION OF COUNTER-FAVORS LATER TO COME.  WE
THINK THAT WHICH THE TRUSTEE HAD NO RIGHT TO DO HE HAD NO RIGHT TO
AUTHORIZE, AND THAT THE TRANSACTIONS WERE AS FORBIDDEN FOR BENEFIT OF
OTHERS AS THEY WOULD HAVE BEEN ON BEHALF OF THE TRUSTEE HIMSELF. 

IT IS ARGUED HERE, AND APPEARS TO HAVE BEEN THE VIEW OF THE COURT OF
APPEALS, THAT PRINCIPLES OF NEGLIGENCE APPLIED AND THAT A TRUSTEE COULD
NOT BE SURCHARGED UNDER MANY DECISIONS UNLESS GUILTY OF "SUPINE
NEGLIGENCE."  WE SEE NO ROOM FOR THE OPERATION OF THE PRINCIPLES OF
NEGLIGENCE IN A CASE IN WHICH CONDUCT HAS BEEN KNOWINGLY AUTHORIZED. 
THIS IS NOT THE CASE OF A TRUSTEE BETRAYED BY THOSE HE HAD GROUNDS TO
BELIEVE WERE TRUSTWORTHY, FOR THESE EMPLOYEES DID EXACTLY WHAT IT WAS
AGREED BY THE TRUSTEE THAT THEY SHOULD DO.  THE QUESTION WHETHER HE WAS
NEGLIGENT IN NOT MAKING DETAILED INQUIRIES INTO THEIR OPERATIONS IS
UNIMPORTANT, BECAUSE HE HAD GIVEN A BLANKET AUTHORITY FOR THE
OPERATIONS.  THE LIABILITY HERE IS NOT CREATED BY A FAILURE TO DETECT
DEFALCATIONS, IN WHICH CASE NEGLIGENCE MIGHT BE REQUIRED TO SURCHARGE
THE TRUSTEE, BUT IS A CASE OF A WILLFUL AND DELIBERATE SETTING UP OF AN
INTEREST IN EMPLOYEES ADVERSE TO THAT OF THAT TRUST. 

IT IS CONTENDED, HOWEVER, THAT THE TRUST HAS INCURRED NO LOSS. 
INDEED, IT IS ARGUED, AND MUCH EVIDENCE WAS TAKEN TO THE EFFECT, THAT
THE BUYING PROGRAM OF DARROW AS A WHOLE WAS TO THE ADVANTAGE OF THE
TRUST.  OF COURSE, THESE DEALINGS IN A RISING MARKET DID NOT DIRECTLY
EXTRACT ANY AMOUNTS FROM THE TILL OF THE TRUSTEE.  BUT IT IS OBVIOUS
THAT A BUYING PROGRAM TO RETIRE AT DISCOUNT BONDS OF SUBSIDIARIES
ADVANCES MOST RAPIDLY AND ACHIEVES ITS GREATEST RESULTS WHEN THE
PURCHASE PRICES ARE LOWEST.  DARROW CONCEDEDLY RELIED ON MISS JOHNSON
IN FIXING OFFERING PRICES.  THOSE OFFERING PRICES WERE SUFFICIENTLY
ABOVE WHAT BONDHOLDERS WERE WILLING TO ACCEPT, SO THAT A MARGIN WAS
LEFT FOR MISS JOHNSON TO PROFIT.  IT MAY NOT HAVE BEEN INTENTIONALLY
RIGGED FOR THE PURPOSE, BUT THERE CAN BE NO DOUBT OF THE RESULT.  IF
PEOPLE WERE WILLING TO TRUDGE TO THE TRUSTEE'S OFFICE TO DISPOSE OF
THEIR HOLDINGS FOR LESS THAN HIS OFFER, THERE IS NO REASON WHY THE
ADVANTAGE OF THAT LOW PRICE SHOULD NOT HAVE BEEN TAKEN BY THE TRUSTEE. 
INSTEAD, IN HIS OWN OFFICE, MISS JOHNSON INTERVENED BETWEEN THE SELLER
AND THE BUYER AND MADE A PROFIT FOR HERSELF BY DOING SO. 

IN ONE OF THE LARGER TRANSACTIONS, A BLOCK OF SECURITIES WAS OFFERED
AT JUDICIAL SALE.  DARROW DID NOT BID BUT MISS JOHNSON DID.  ABOUT ONE
HALF OF THE PURCHASE PRICE SHE OBTAINED THROUGH A RESALE TO DARROW.  HE
PAID HER, IN ADVANCE OF DELIVERY, $12,447 FOR SECURITIES THAT COST HER
APPROXIMATELY $8,000, AND HIS CHECK WAS USED BY MISS JOHNSON TO MAKE
THE PAYMENT DUE UNDER HER BID.  IF DARROW'S EMPLOYEES WERE ABLE TO
PURCHASE IN THE OPEN MARKET THESE SECURITIES AT LESS THAN DARROW ON
THEIR ADVICE THEREAFTER OFFERED AND PAID, IT IS DIFFICULT TO SAY THAT
THERE WAS NO INJURY TO THE ESTATE OF THE TRUST THROUGH THESE
TRANSACTIONS.  BUT EQUITY HAS SOUGHT TO LIMIT DIFFICULT AND DELICATE
FACT-FINDING TASKS CONCERNING ITS OWN TRUSTEE BY PRECLUDING SUCH
TRANSACTIONS FOR THE REASON THAT THEIR EFFECT IS OFTEN DIFFICULT TO
TRACE, AND THE PROHIBITION IS NOT MERELY AGAINST INJURING THE ESTATE -
IT IS AGAINST PROFITING OUT OF THE POSITION OF TRUST.  THAT THIS HAS
OCCURRED, SO FAR AS THE EMPLOYEES ARE CONCERNED, IS UNDENIED. 

IT IS ARGUED, AND THE COURT OF APPEALS APPEARS TO HAVE BEEN IMPRESSED
BY THE ARGUMENT, THAT THIS SURCHARGE CREATES A VERY HEAVY LIABILITY
UPON A MAN WHO ENJOYED NO PERSONAL PROFIT AND MUST BE CONDONED "'SO AS
NOT TO STRIKE TERROR INTO MANKIND ACTING FOR THE BENEFIT OF OTHERS AND
NOT FOR THEIR OWN.'"  184 F.2D 1, 8.  TRUSTEES ARE OFTEN OBLIGED TO
MAKE DIFFICULT BUSINESS JUDGMENTS, AND THE BEST THAT DISINTERESTED
JUDGMENT CAN ACCOMPLISH WITH FORESIGHT MAY BE OPEN TO SERIOUS CRITICISM
BY OBSTREPEROUS CREDITORS AIDED BY HINDSIGHT.  COURTS ARE QUITE LIKELY
TO PROTECT TRUSTEES AGAINST HEAVY LIABILITIES FOR DISINTERESTED
MISTAKES IN BUSINESS JUDGMENT.  BUT A TRUSTEESHIP IS SERIOUS BUSINESS
AND IS NOT TO BE UNDERTAKEN LIGHTLY OR SO DISCHARGED.  THE MOST
EFFECTIVE SANCTION FOR GOOD ADMINISTRATION IS PERSONAL LIABILITY FOR
THE CONSEQUENCES OF FORBIDDEN ACTS, AND THERE ARE WAYS BY WHICH A
TRUSTEE MAY EFFECTIVELY PROTECT HIMSELF AGAINST PERSONAL LIABILITY. 

THE PRACTICE IS WELL ESTABLISHED BY WHICH TRUSTEES SEEK INSTRUCTIONS
FROM THE COURT, GIVEN UPON NOTICE TO CREDITORS AND INTERESTED PARTIES,
AS TO MATTERS WHICH INVOLVE DIFFICULT QUESTIONS OF JUDGMENT.  IN THIS
PARTICULAR MATTER, IT IS CLAIMED THAT THE SPECIAL KNOWLEDGE OF MISS
JOHNSON AND KULP WAS INDISPENSABLE TO THE TRUSTEE.  THIS, IT IS SAID,
IS THE REASON THE TRUSTEE YIELDED TO THEIR INSISTENCE UPON THE RIGHT TO
SPECULATE IN THE SECURITIES UNDERLYING THE TRUST.  IF THEIR SERVICES
WERE SO INDISPENSABLE THAT AN ARRANGEMENT SO HIGHLY IRREGULAR WAS OF
ADVANTAGE TO THE TRUST, THIS MIGHT HAVE BEEN FULLY DISCLOSED TO THE
COURT AND THE CREDITORS CITED TO SHOW CAUSE WHY IT SHOULD NOT HAVE BEEN
OPENLY AUTHORIZED.  INSTEAD OF THIS, THE TRUSTEE, ALTHOUGH HE DID
DISCUSS WITH JUDGE HOLLY THE EMPLOYMENT OF KULP AND MISS JOHNSON, DID
NOT DISCLOSE THE CRITICAL FACT THAT HE WAS EMPLOYING THEM ON TERMS
WHICH PERMITTED THEIR TRADING IN THE UNDERLYING SECURITIES.  INDEED, IT
APPEARS THAT HE DID NOT EVEN DISCLOSE THIS FEATURE OF THE TRANSACTION
TO HIS OWN COUNSEL.  IT IS HARDLY PROBABLE THAT A CANDID DISCLOSURE TO
CREDITORS, TO THE COURT, AND TO INTERESTED PARTIES WOULD HAVE RESULTED
IN INSTRUCTIONS TO HAVE PURSUED THIS COURSE; BUT, HAD IT BEEN
AUTHORIZED, AT LEAST THE ASSENTING CREDITORS MIGHT HAVE FOUND
THEMSELVES ESTOPPED TO QUESTION THE TRANSACTION. 

A FURTHER REMEDY OF A TRUSTEE FOR LIMITING, IF NOT AVOIDING, PERSONAL
LIABILITY IS TO ACCOUNT AT PROMPT INTERVALS, WHICH PUTS UPON OBJECTORS
THE BURDEN OF RAISING THEIR OBJECTIONS.  AND HAD THE TRUSTEE ACCOUNTED,
AS GOOD PRACTICE WOULD HAVE REQUIRED, HE UNDOUBTEDLY WOULD HAVE
DISCOVERED LONG AGO THAT THIS ARRANGEMENT WAS OBJECTIONABLE.  IT HARDLY
LIES IN THE MOUTH OF A TRUSTEE TO ALLOW HIS LIABILITIES TO ACCUMULATE
OVER SUCH A PERIOD OF TIME AND THEN ASK THE COURT TO RELIEVE HIM OF
THEM BECAUSE THEY HAVE BECOME TOO BURDENSOME.    IN FAIRNESS TO THE
TRUSTEE, IT IS TO BE NOTED THAT THERE IS NO HINT OR PROOF THAT HE HAS
BEEN CORRUPT OR THAT HE HAS ANY INTEREST, PRESENT OR FUTURE, IN THE
PROFITS HE HAS PERMITTED THESE EMPLOYEES TO MAKE.  FOR ALL THAT
APPEARS, HE WAS SINPLY MISLED INTO THINKING THESE PERSONS
INDISPENSABLE, BUT HE ENTERED INTO AN ARRANGEMENT WHICH COURTS CANNOT
SANCTION UNLESS THEY ARE TO OPEN THE DOOR TO PRACTICES WHICH WOULD
DEMORALIZE TRUSTEESHIPS AND DISCREDIT BANKRUPTCY ADMINISTRATION.    THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE REMANDED TO
THE DISTRICT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

MR. JUSTICE BURTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

THE SPECIAL MASTER, DISTRICT COURT, COURT OF APPEALS AND THIS COURT
ALL SEEM TO AGREE THAT THE RESPONDENT TRUSTEE, DARROW, HAS BEEN GUILTY
OF NO ACT OF BAD FAITH.  AS A RESULT OF HIS ADMINISTRATION, LARGE
PROFITS ACCRUED TO THE ESTATE.  NEVERTHELESS, THE COURT NOW HOLDS THAT
RESPONDENT MUST BE SURCHARGED $43,000 SOLELY BECAUSE TWO OF THE TRUST'S
EMPLOYEES PROFITED TO THAT EXTENT FROM TRADING IN TRUST SECURITIES WITH
HIS KNOWLEDGE.  THIS RULE OF TRUSTEE LIABILITY DID NOT EXIST BEFORE
TODAY, AS IS SHOWN BY THE FACT THAT NO STATUTE OR CASE IS CITED IN
SUPPORT OF THE COURT'S DECISION. 

DESPITE ITS NOVELTY, THERE IS MUCH TO BE SAID IN FAVOR OF SUCH A RULE
FOR CASES ARISING IN THE FUTURE.  IT SEEMS TO ME, HOWEVER, THAT THERE
IS NO REASON WHY THE RULE SHOULD BE RETROACTIVELY APPLIED TO THIS
RESPONDENT WHEN TO DO SO IS GROSSLY UNFAIR.  ADMITTEDLY, THE MOST THAT
CAN BE SAID AGAINST RESPONDENT IS THAT HE MADE AN HONEST MISTAKE WHICH
BEFORE TODAY WOULD NOT HAVE SUBJECTED HIM TO THE HEAVY FINANCIAL
PENALTY.  UNDER THESE CIRCUMSTANCES, IF THE NEW RULE IS TO BE ANNOUNCED
BY THE COURT, I THINK IT SHOULD BE GIVEN PROSPECTIVE APPLICATION ONLY. 
SEE GREAT NORTHERN R. CO. V. SUNBURST OIL CO., 287 U.S. 358 AND CASES
CITED, 85 A.L.R. 262. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :














ELDER V. BRANNAN, 341 U.S. 277 


ARGUED APRIL 11, 1951.  - DECIDED MAY 7, 1951.  - 87 U.S. APP. D.C. 117,
184 F.2D 219, AFFIRMED IN PART AND REVERSED IN PART. 


1.  PETITIONERS ARE VETERANS ENTITLED TO THE BENEFITS OF THE VETERANS'
PREFERENCE ACT OF 1944.  THEY WERE APPOINTED AS ATTORNEYS IN A
GOVERNMENT DEPARTMENT IN 1943, WHEN A CIVIL SERVICE REGULATION LIMITED
SUCH APPOINTMENTS TO THE DURATION OF THE WAR PLUS SIX MONTHS, AND
PERSONS SO APPOINTED WERE NOT TO ACQUIRE A CLASSIFIED (COMPETITIVE)
CIVIL SERVICE STATUS.  IN 1947, THROUGH A REDUCTION IN FORCE,
PETITIONERS AND OTHER ATTORNEYS IN THE DEPARTMENT WERE SEPARATED FROM
THE SERVICE, ALTHOUGH NONVETERAN ATTORNEYS WITH CLASSIFIED STATUS WERE
RETAINED.  THEY SOUGHT RELIEF IN AN ACTION IN THE DISTRICT COURT,
ALLEGING THAT THEIR SEPARATION FROM THE SERVICE WAS UNLAWFUL.  HELD:
PETITIONERS' SEPARATION FROM THE SERVICE WAS IN ACCORD WITH THE CIVIL
SERVICE COMMISSION'S RETENTION-PREFERENCE REGULATIONS; THE REGULATIONS
WERE CONSISTENT WITH SEC. 12 OF THE ACT AND WERE VALID; AND
PETITIONERS' SEPARATION FROM THE FEDERAL SERVICE WAS THEREFORE VALID. 
PP. 281-285. 

(A)  PETITIONERS DID NOT ACQUIRE A CLASSIFIED CIVIL SERVICE STATUS
AND WERE NOT ENTITLED UNDER CIVIL SERVICE REGULATIONS TO RETENTION
PREFERENCE OVER ALL NONVETERANS.  P. 281. 

(B)  THE PROVISO OF SEC. 12 OF THE ACT DOES NOT GIVE TO VETERANS WITH
AN EFFICIENCY RATING OF "GOOD" OR BETTER AN ABSOLUTE PREFERENCE OVER
ALL OTHER EMPLOYEES, WITH OR WITHOUT CLASSIFIED STATUS OR ITS
EQUIVALENT.  PP. 283-285. 

(C)  THE COMMISSION'S RETENTION REGULATIONS, ADOPTED PURSUANT TO SEC.
12 OF THE ACT, CAN HARDLY BE DEEMED INVALID FOR MAKING A DISTINCTION ON
THE BASIS OF TENURE WHEN THEY REFLECT A LONG-STANDING DEFINITION OF
"COMPETING" GROUPS, WHEN THEY WERE ISSUED BY THE AGENCY WHICH PROPOSED
THE STATUTORY LANGUAGE FINALLY ADOPTED, AND WHEN CONGRESS INDICATED NO
INTENT WHATSOEVER TO SUPPLY A NEW STANDARD.  P. 285. 

(D)  THE CONTENTION THAT, APART FROM SEC. 12, VETERANS WERE GIVEN AN
ABSOLUTE PREFERENCE BY SEC. 4 OF THE ACT OF 1912, 37 STAT. 413, AND
THAT THE PREFERENCE SO GRANTED WAS CARRIED OVER BY THE SAVING CLAUSE IN
SEC. 18 OF THE 1944 ACT, CANNOT BE SUSTAINED AS TO THESE TEMPORARY WAR
SERVICE EMPLOYEES.  PP. 285-286. 

(E)  SECTION 2 OF THE 1944 ACT DOES NOT, IN AND OF ITSELF, EXTEND
ABSOLUTE PREFERENCE TO VETERANS WITH LIMITED TENURE.  NO SPECIFIC
PREFERENCE RIGHTS ARE GRANTED BY THAT SECTION.  P. 286. 

2.  PETITIONERS' COMPLAINT ALSO ALLEGED THAT THE DEPARTMENT HAD
REHIRED SOME OF THE OTHER ATTORNEYS, THAT SOME OF THOSE REHIRED HAD A
LOWER CLASSIFICATION ON THE RETENTION REGISTER THAN THAT OF
PETITIONERS, AND THAT PETITIONERS WERE THUS WRONGFULLY DENIED
PREFERENCE IN REHIRING.  THEY DID NOT ALLEGE THAT THEY HAD REQUESTED
THAT THEIR NAMES BE PLACED ON THE APPROPRIATE REEMPLOYMENT LIST, NOR
THAT THE APPOINTING OFFICER FAILED TO FOLLOW THE PROCEDURES SPECIFIED
BY SECS. 7, 8, 15 AND PERTINENT REGULATIONS.  HELD:  THE COMPLAINT WAS
INSUFFICIENT TO STATE A CAUSE OF ACTION UNDER THE ACT.  PP. 286-289. 

(A)  SECTION 2 OF THE 1944 ACT GRANTS PETITIONERS NO "REINSTATEMENT
AND REEMPLOYMENT" PREFERENCE RIGHTS.  PP. 286-287. 

(B)  REINSTATEMENT OR REEMPLOYMENT PREFERENCES ARE NOT TO BE MEASURED
BY RETENTION-PREFERENCE REGULATIONS UNDER SEC. 12 OF THE ACT.  P. 287. 

(C)  PETITIONERS' RIGHTS TO PREFERENCE IN REEMPLOYMENT WERE GOVERNED
BY SEC. 15 OF THE ACT.  THEY WERE ENTITLED TO THOSE RIGHTS ONLY IF THEY
REQUESTED THAT THEIR NAMES BE PLACED ON THE APPROPRIATE REEMPLOYMENT
LIST; AND, EVEN IF THEY DID SO, THEIR PREFERENCE RIGHTS WERE VIOLATED
ONLY IF THE APPOINTING OFFICER FAILED TO FOLLOW THE PROCEDURES
SPECIFIED BY SECS. 7, 8, 15 AND PERTINENT REGULATIONS.  P. 289. 

ELDER ET AL. V. BRANNAN, SECRETARY OF AGRICULTURE. 

NO. 474.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT* . 

*TOGETHER WITH NO. 473, BRANNAN, SECRETARY OF AGRICULTURE, V. ELDER
ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

IN ACTIONS BROUGHT AGAINST THE SECRETARY OF AGRICULTURE BY TWO
VETERANS, WHO SOUGHT TO BE RESTORED TO THEIR FORMER POSITIONS IN THE
DEPARTMENT, THE DISTRICT COURT GRANTED THE MOTION OF THE SECRETARY FOR
SUMMARY JUDGMENT.  THE COURT OF APPEALS REVERSED AND REMANDED THE
CAUSE.  87 U.S. APP. D.C. 117, 184 F.2D 219.  THIS COURT GRANTED CROSS
PETITIONS FOR CERTIORARI.  340 U.S. 928.  AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED TO THE DISTRICT COURT, P. 289. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THESE ACTIONS INVOLVE QUESTIONS CONCERNING THE PRECISE SCOPE OF
RIGHTS TO EMPLOYMENT IN THE FEDERAL SERVICE GRANTED BY THE VETERANS'
PREFERENCE ACT OF 1944.  58 STAT. 387, 5 U.S.C. (1946 ED.)  SECS.  851
ET SEQ. THE ULTIMATE ISSUES ARE TWO:  (1) WHETHER UNDER SEC. 12 OF THE
ACT VETERANS WITH TEMPORARY WAR-SERVICE APPOINTMENTS ARE ENTITLED TO
RETENTION PREFERENCE OVER NONVETERANS WITH THE EQUIVALENT OF CLASSIFIED
CIVIL SERVICE STATUS WHEN REDUCTION-IN-FORCE DISCHARGES ARE MADE; AND
(2) WHETHER THE REEMPLOYMENT RIGHTS OF VETERANS LAWFULLY DISCHARGED ARE
GOVERNED BY SEC. 12 RETENTION PRIORITIES OR BY OTHER PROVISIONS OF THE
ACT. 

WE TREAT THESE CASES TOGETHER, AS DID THE COURTS BELOW, AND SHALL
REFER TO ELDER AND FURMAN AS PETITIONERS.  PETITIONERS ARE HONORABLY
DISCHARGED VETERANS AND AS SUCH ARE CONCEDEDLY ENTITLED TO WHATEVER
BENEFITS THE ACT AFFORDS.  THEY WERE APPOINTED ASSOCIATE ATTORNEYS IN
THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF AGRICULTURE IN JULY
AND AUGUST 1943.  AT THE TIME OF THEIR APPOINTMENTS, A CIVIL SERVICE
REGULATION WAS IN EFFECT UNDER WHICH ALL APPOINTMENTS AS ATTORNEYS WERE
TO BE LIMITED TO THE DURATION OF THE WAR PLUS SIX MONTHS, AND PERSONS
SO APPOINTED WERE NOT TO ACQUIRE A CLASSIFIED (COMPETITIVE) CIVIL
SERVICE STATUS.  ON MAY 29, 1947, PETITIONERS AND EIGHTEEN OTHER
ATTORNEYS IN THE DEPARTMENT WERE NOTIFIED THAT, BECAUSE OF A REDUCTION
IN FORCE COMPELLED BY LACK OF FUNDS, THEY WOULD BE SEPARATED FROM
SERVICE ON JUNE 30 FOLLOWING.  NONVETERAN ATTORNEYS WITH EQUIVALENT OF
CLASSIFIED STATUS WERE TO BE RETAINED.  THE SELECTION WAS MADE ON THE
BASIS OF CIVIL SERVICE RETENTION-PREFERENCE REGULATIONS - UNDER SEC. 12
- WHICH PLAINLY REQUIRED THAT NONVETERANS WITH CLASSIFIED STATUS OR ITS
EQUIVALENT BE GIVEN A HIGHER RETENTION PRIORITY THAN VETERANS WITHOUT. 

PLAINTIFFS APPEALED TO THE COMMISSION, WHICH SUBSEQUENTLY FOUND THAT
THEIR SEPARATION WAS IN ACCORD WITH THE STATUTE AND REGULATIONS. 
MEANWHILE, HOWEVER, THEY INSTITUTED THESE ACTIONS IN THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA, ALLEGING FIRST THAT THEY HAD ACQUIRED A
CLASSIFIED STATUS, AND HENCE WERE ENTITLED UNDER THE REGULATIONS TO A
RETENTION PRIORITY OVER NONVETERANS; SECOND, THAT IN ANY EVENT, THE
STATUTE GAVE VETERANS AN ABSOLUTE RETENTION PRIORITY REGARDLESS OF
STATUS, AND THAT COMMISSION REGULATIONS TO THE CONTRARY WERE INVALID. 

WHILE THESE ACTIONS WERE PENDING, THE DEPARTMENT CAME INTO ADDITIONAL
FUNDS, AND SEVERAL ATTORNEYS NOT REACHED FOR SEPARATION RESIGNED
VOLUNTARILY OR TRANSFERRED.  THE DEPARTMENT THEN REHIRED NINE OF THE
ATTORNEYS PREVIOUSLY SEPARATED, THE FIRST OF WHOM TOOK OFFICE ON
OCTOBER 27, 1947.  SOME OF THE ATTORNEYS REHIRED WERE NONVETERANS WITH
A LOWER REDUCTION-IN-FORCE RETENTION PRIORITY THAN THAT POSSESSED BY
PETITIONERS AT THE TIME ALL WERE SEPARATED.  ON THIS GROUND, THE LATTER
AMENDED THEIR COMPLAINTS BEFORE THE DISTRICT COURT TO ALLEGE IN
ADDITION THAT THEY HAD BEEN DEPRIVED OF A PREFERENTIAL RIGHT TO
"REEMPLOYMENT" OR "REINSTATEMENT."  THE SECRETARY MOVED FOR A SUMMARY
JUDGMENT, AND THE DISTRICT COURT GRANTED THE MOTION.  ON APPEAL, THE
COURT OF APPEALS AFFIRMED THE JUDGMENT THAT PETITIONERS' SEPARATION
FROM THE SERVICE WAS LAWFUL.  BUT IT FOUND THAT THE ALLEGATIONS
CONCERNING VIOLATION OF REEMPLOYMENT OR REINSTATEMENT RIGHTS WERE WELL
FOUNDED.  THE COURT THEREFORE REVERSED AND REMANDED WITH DIRECTIONS
THAT THE SECRETARY BE GIVEN LEAVE TO DENY THE FACTS ALLEGED.  87 U.S.
APP. D.C. 117, 184 F.2D 219.  FROM THIS JUDGMENT, THE PARTIES FILED
CROSS-PETITIONS FOR REVIEW.  PETITIONERS SOUGHT REVIEW OF THE JUDGMENT
THAT THEIR SEPARATION WAS LAWFULLY CARRIED OUT.  THE SECRETARY SOUGHT
REVIEW OF THE JUDGMENT THAT PETITIONERS' ALLEGATIONS AS TO DEPRIVATION
OF REEMPLOYMENT OR REINSTATEMENT RIGHTS STATED A CAUSE OF ACTION UNDER
THE STATUTE.  WE GRANTED CERTIORARI BECAUSE OF THE OBVIOUS IMPACT OF
THESE ISSUES ON FEDERAL EMPLOYMENT POLICIES.  340 U.S. 928(1951). 

FOR REASONS OUTLINED BELOW, WE AGREE THAT PETITIONERS' SEPARATION
FROM SERVICE WAS IN FULL ACCORD WITH THE STATUTE.  WE DISAGREE WITH THE
HOLDING THAT THE ALLEGATIONS OF THE COMPLAINT ARE SUFFICIENT TO STATE
AN UNLAWFUL DEPRIVATION OF A PREFERENTIAL RIGHT TO REEMPLOYMENT. 

                          I. 

AS THE COURT OF APPEALS POINTED OUT, THERE IS NO MERIT IN
PETITIONERS' CONTENTION THAT THEY HAD ACQUIRED A CLASSIFIED CIVIL
SERVICE STATUS AND WERE THUS ENTITLED UNDER THE REGULATIONS TO
RETENTION PREFERENCE OVER ALL NONVETERANS.  FN1  THE VALIDITY OF
PETITIONERS' DISCHARGE, THEREFORE, TURNS ON THE VALIDITY OF THE
COMMISSION'S RETENTION-PREFERENCE REGULATIONS.  5 CFR (SUPP. 1947) SEC.
20.3.  THESE REGULATIONS WERE ADOPTED PURSUANT TO SEC. 12 OF THE
VETERANS' PREFERENCE ACT, 5 U.S.C. SEC. 861, WHICH READS IN PART AS
FOLLOWS: 

"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 PREFERENCE EMPLOYEES WHOSE EFFICIENCY
RATINGS ARE 'GOOD' OR BETTER SHALL BE RETAINED IN PREFERENCE TO ALL
OTHER COMPETING EMPLOYEES AND THAT PREFERENCE EMPLOYEES WHOSE
EFFICIENCY RATINGS ARE BELOW 'GOOD' SHALL BE RETAINED IN PREFERENCE TO
COMPETING NONPREFERENCE EMPLOYEES WHO HAVE EQUAL OR LOWER EFFICIENCY
RATINGS  ...." 

THE REGULATIONS FIRST DEFINE "COMPETING" EMPLOYEES ON THE BASIS OF
TENURE OF EMPLOYMENT.  THE HIGHEST PRIORITY IS GIVEN GROUP A, WHICH
INCLUDES (1) EMPLOYEES HAVING CLASSIFIED CIVIL SERVICE STATUS, AND (2)
THOSE HOLDING POSITIONS EXCEPTED FROM EXAMINATION REQUIREMENTS AND
WHOSE APPOINTMENTS ARE WITHOUT TIME LIMITATION.  GROUP B, SECOND IN
RETENTION PRIORITY, INCLUDES EMPLOYEES WITHOUT CLASSIFIED STATUS OR
WHOSE APPOINTMENTS ARE LIMITED TO THE DURATION OF THE WAR PLUS SIX
MONTHS.  GROUP C IS COMPOSED OF EMPLOYEES APPOINTED FOR ONE YEAR OR
LESS.  THE REGULATIONS THEN CLASSIFY EMPLOYEES WITHIN EACH GROUP ON THE
BASIS OF VETERANS' PREFERENCE AND EFFICIENCY RATINGS.  SUBGROUPS A-1, B
1 AND C-1 INCLUDE EMPLOYEES WITH BOTH VETERANS' PREFERENCE AND
EFFICIENCY RATINGS OF "GOOD" OR BETTER.  SUBGROUPS A-2, B-2 AND C-2
INCLUDE THOSE WITH "GOOD" OR BETTER EFFICIENCY RATINGS BUT WITHOUT
VETERANS' PREFERENCE.  UNDER THESE REGULATIONS, PETITIONERS, AS WAR
SERVICE EMPLOYEES, WERE CLASSIFIED B-1, AND WERE SEPARATED WHILE SOME
NONVETERAN ATTORNEYS WITH AN A-2 CLASSIFICATION (PERMANENT EMPLOYEES)
WERE RETAINED.  THE SECRETARY HAD NO OTHER CHOICE, SINCE THE
REGULATIONS GROUP EMPLOYEES BY TENURE AND LIMIT THE REACH OF VETERANS'
PREFERENCE TO COMPETING EMPLOYEES OF THE SAME GROUP. 

PETITIONERS CONTEND THAT THIS FEATURE VIOLATES THE STATUTE, THAT THE
PROVISO OF SEC. 12 PLAINLY GIVES VETERANS WITH AN EFFICIENCY RATING OF
"GOOD" OR BETTER AN ABSOLUTE PREFERENCE OVER ALL OTHER EMPLOYEES, WITH
OR WITHOUT CLASSIFIED STATUS OR ITS EQUIVALENT.  BUT THE PROVISO, LIKE
THE BODY OF SEC. 12, CONTAINS THE TERM "COMPETING" EMPLOYEES, WHICH
NECESSARILY IMPLIES THAT A VETERAN'S PREFERENCE OPERATES ONLY WITHIN A
DEFINED GROUP.  AND SINCE THE STATUTE DOES NOT SUPPLY A DEFINITION, WE
MUST DETERMINE FROM THE LEGISLATIVE HISTORY OF THE ACT, AND FROM PRIOR
LEGISLATION AND REGULATIONS, WHETHER THE COMMISSION'S DEFINITION MAY
REASONABLY BE SAID TO "CARRY INTO FULL EFFECT THE PROVISIONS, INTENT,
AND PURPOSE (OF THE STATUTE)."  5 U.S.C. SEC. 868. 

THIS COURT MADE A SIMILAR EXAMINATION IN HILTON V. SULLIVAN, 334 U.S.
323(1948).  THE DECISION IN THAT CASE UPHELD THE RETENTION-PREFERENCE
REGULATIONS INSOFAR AS THEY GRANTED VETERANS WITH CLASSIFIED STATUS AN
ABSOLUTE PRIORITY OVER NONVETERANS OF THE SAME STATUS REGARDLESS OF
LENGTH OF SERVICE.  THE COURT STATED THAT IN THE LIGHT OF ALL PERTINENT
HISTORY "NO OTHER INTERPRETATION OF (SEC. 12)  ...  CAN FAIRLY BE
REACHED."  ID. AT 336.  SINCE "LENGTH OF SERVICE" AND "TENURE OF
EMPLOYMENT" APPEAR AS PARALLEL TERMS IN THE BODY OF SEC. 12, IT CAN BE
ARGUED THAT IF THE PROVISO ELIMINATES LENGTH OF SERVICE AS A BARRIER TO
VETERANS' PREFERENCE, IT ALSO ELIMINATES TENURE.  BUT THIS IGNORES A
CRUCIAL DIFFERENCE IN THE HISTORICAL TREATMENT OF THESE TWO FACTORS. 
EXECUTIVE ORDERS AND CIVIL SERVICE REGULATIONS PRIOR TO 1944 HAD
CONSISTENTLY DISREGARDED LENGTH OF SERVICE IN GIVING VETERANS
PREFERENCE OVER NONVETERANS WITH THE SAME TENURE - A FACT STRESSED IN
THE HILTON CASE.  ID. AT 336-337.  ON THE OTHER HAND, THE REGULATIONS
HAD JUST AS CONSISTENTLY DISTINGUISHED "COMPETING" GROUPS ON THE BASIS
OF TENURE, AND HAD CONFINED THE SCOPE OF VETERANS' PREFERENCE TO
EMPLOYEES OF THE SAME GROUP.  AS EARLY AS 1932, THE COMMISSION PROVIDED
THAT REDUCTION IN FORCE WAS TO BE CARRIED OUT IN INVERSE ORDER OF
TENURE, PERMANENT EMPLOYEES TO BE SEPARATED LAST.  FN2  THE RULE WAS
STILL IN FORCE AT THE TIME THE VETERANS' PREFERENCE ACT OF 1944 WAS
PASSED.  5 CFR (SUPP. 1943) SEC. 12.304. 

MOREOVER, THE LEGISLATIVE HISTORY OF THE ACT IS BARREN OF ANY
INDICATION THAT THIS LONG-ESTABLISHED SEPARATION OF "COMPETING"
EMPLOYEES ON THE BASIS OF TENURE WAS TO BE BROKEN DOWN AND SUBORDINATED
TO VETERANS' PREFERENCE.  IN GENERAL, THE ACT WAS DESIGNED TO "GIVE
LEGISLATIVE SANCTION TO EXISTING VETERANS' PREFERENCE" AND TO "GIVE
SOME ADDITIONAL STRENGTH" TO THAT PREFERENCE.  FN3  ADDITIONAL RIGHTS
GRANTED WERE SPECIFICALLY BROUGHT TO THE CONGRESS' ATTENTION.  ONE
ADDITION WHICH WAS STRESSED, FOR EXAMPLE, WAS THE THIRD PROVISO OF SEC.
12, WHICH GRANTS PREFERENCE TO VETERAN EMPLOYEES OF AN AGENCY WHEN THAT
AGENCY IS REPLACED OR ANY OF ITS FUNCTIONS TRANSFERRED TO ANOTHER
ADMINISTRATIVE BODY.  FN4  BUT, IN THE ONLY INTERPRETIVE DISCUSSION OF
THE PROVISO HERE INVOLVED, COMMISSIONER FLEMMING STATED THAT IT "SIMPLY
CONTINUES WHAT HAS BEEN IN PRACTICE THROUGHOUT THE ENTIRE FEDERAL
SERVICE SINCE 1923."  FN5  MORE IMPORTANT, TWO BILLS EARLIER PROPOSED
BY VETERANS' ORGANIZATIONS WOULD HAVE SPECIFICALLY GRANTED THE RIGHT
WHICH PLAINTIFFS CLAIM IN THIS CASE - ABSOLUTE PREFERENCE IN RETENTION
REGARDLESS OF TENURE.  FN6  THESE BILLS WERE REJECTED IN FAVOR OF SEC.
12 AS ENACTED, THE LANGUAGE OF WHICH WAS PROPOSED BY THE COMMISSION
ITSELF.  FN7  IN SUM, THE COMMISSION'S RETENTION REGULATIONS CAN HARDLY
BE CALLED INVALID FOR MAKING A DISTINCTION ON THE BASIS OF TENURE WHEN
THEY REFLECT A LONG-STANDING DEFINITION OF "COMPETING" GROUPS, WHEN
THEY WERE ISSUED BY THE AGENCY WHICH PROPOSED THE STATUTORY LANGUAGE
FINALLY ADOPTED, AND WHEN CONGRESS INDICATED NO INTENT WHATSOEVER TO
SUPPLY A NEW STANDARD. 

TWO FURTHER POINTS REMAIN.  PETITIONERS CONTEND THAT, APART FROM SEC.
12, VETERANS WERE GIVEN AN ABSOLUTE PREFERENCE BY SEC. 4 OF THE ACT OF
1912, 37 STAT. 413, AND THAT THE PREFERENCE SO GRANTED WAS CARRIED OVER
BY THE SAVING CLAUSE IN SEC. 18 OF THE 1944 ACT.  5 U.S.C. SEC. 867. 
THE FLAW IN THIS ARGUMENT, AS THE COURT BELOW POINTED OUT, IS THAT SEC.
4 BY ITS TERMS WAS CONFINED TO THE CLASSIFIED CIVIL SERVICE.  ITS
FEATURES WERE SUBSEQUENTLY APPLIED, UNDER EXECUTIVE ORDERS, WITHIN THE
UNCLASSIFIED SERVICE, BUT AS INDICATED ABOVE, TEMPORARY APPOINTMENT
VETERANS NEVER HAD RETENTION PREFERENCE OVER PERMANENT TENURE
NONVETERANS.  ALTERNATIVELY, PETITIONERS CONTEND THAT SEC. 2 OF THE
1944 ACT IN AND OF ITSELF EXTENDS ABSOLUTE PREFERENCE TO VETERANS WITH
LIMITED TENURE.  5 U.S.C. SEC. 851.  BUT IT SEEMS APPARENT THAT SEC. 2
GIVES NO SPECIFIC PREFERENCE RIGHTS AT ALL.  THE SECTION CONTAINS ONLY
A GENERAL STATEMENT OF POLICY, A LISTING OF PREFERRED GROUPS, AND A
SPECIFICATION OF FEDERAL POSITIONS COVERED.  IT PROVIDES THAT
"PREFERENCE SHALL BE GIVEN" IN CERTIFICATION FOR APPOINTMENT,
APPOINTMENT, REINSTATEMENT, REEMPLOYMENT AND RETENTION; IT DOES NOT
DELINEATE WHAT THAT PREFERENCE SHALL BE.  THE DETAILS ARE SPELLED OUT
IN SUBSEQUENT SECTIONS OF THE ACT, RETENTION PREFERENCE BEING GOVERNED
BY SEC. 12.  CF. HILTON V. SULLIVAN, SUPRA.  SECTION 2 WAS DESCRIBED
THROUGHOUT THE LEGISLATIVE HISTORY AS MERELY "DEFINING THE GROUPS TO
WHOM PREFERENCE WAS TO BE GRANTED."  FN8 

SINCE RETENTION RIGHTS ARE GOVERNED BY SEC. 12, AND SINCE THE
REGULATIONS ARE CONSISTENT WITH THE STATUTE, PETITIONERS WERE PROPERLY
SEPARATED FROM THEIR POSITIONS IN THE FEDERAL SERVICE. 

II.    THE COMPLAINT THAT PLAINTIFFS WERE WRONGFULLY DENIED PREFERENCE
IN REHIRING RESTS SOLELY ON THE ALLEGATION THAT THE DEPARTMENT
REEMPLOYED ATTORNEYS WITH A LOWER CLASSIFICATION ON THE RETENTION
REGISTER.  THE COURT OF APPEALS CONCLUDED THAT THIS ALLEGATION, NOT
DENIED BY THE SECRETARY, WAS SUFFICIENT TO STATE A CAUSE OF ACTION
UNDER THE STATUTE.  IT HELD THAT SEC. 2 OF THE STATUTE GRANTED
"REINSTATEMENT AND RE-EMPLOYMENT" PREFERENCE RIGHTS, AND THAT THESE
RIGHTS WERE MEASURED BY THE RETENTION-PREFERENCE REGULATIONS UNDER SEC.
12.  87 U.S. APP. D.C. 117, 120, 184 F.2D 219, 222(C.A.D.C. CIR.
1950).  NEITHER OF THESE HOLDINGS WITHSTANDS ANALYSIS.  SECTION 2, AS
HAS BEEN INDICATED, GRANTS NO SPECIFIC RIGHTS EXCEPT INSOFAR AS IT MAY
BE THOUGHT TO PRESERVE, IN CONJUNCTION WITH SEC. 18, ANY RIGHTS
PREVIOUSLY ARISING FROM STATUTE, EXECUTIVE ORDER OR REGULATION AND NOT
GRANTED BY THE OTHER SECTIONS OF THE 1944 ACT. 

NOR ARE WE ABLE TO ACCEPT THE RULING THAT REINSTATEMENT OR
REEMPLOYMENT PREFERENCES ARE TO BE MEASURED BY RETENTION-PREFERENCE
REGULATIONS UNDER SEC. 12.  REEMPLOYMENT PREFERENCES ARE SPECIALLY
DEALT WITH ELSEWHERE IN THE ACT.  SECTION 15 PROVIDES THAT ALL
PREFERENCE ELIGIBLES WHO HAVE BEEN SEPARATED WITHOUT FAULT ON THEIR
PART MAY - AT THEIR REQUEST - HAVE THEIR NAMES PLACED ON ALL
APPROPRIATE REGISTERS OR EMPLOYMENT LISTS FOR POSITIONS FOR WHICH THEY
ARE QUALIFIED.  5 U.S.C. SEC. 864.  IT FURTHER PROVIDES THAT THEIR
ELIGIBILITY FOR REAPPOINTMENT IS THEN GOVERNED BY SECS. 7 AND 8 OF THE
ACT, DEALING WITH APPOINTMENTS IN GENERAL.  5 U.S.C. SECS. 856, 857. 
THE NAMES OF PREFERENCE ELIGIBLES ARE PLACED ON THE APPROPRIATE
REGISTERS OR LISTS IN ACCORDANCE WITH THEIR RESPECTIVE NUMERICAL
RATINGS, WHICH ARE AUGMENTED BY 10 POINTS IN THE CASE OF DISABLED
VETERANS, THEIR WIVES, OR UNMARRIED WIDOWS OF DECEASED VETERANS; 5
POINTS IN THE CASE OF OTHER PREFERENCE ELIGIBLES.  5 U.S.C. SEC. 852. 
THE APPOINTING OFFICER MAY PASS OVER A VETERAN IN FAVOR OF A
NONVETERAN, BUT IF HE DOES SO HE MUST FILE IN WRITING HIS REASONS
THEREFOR, AND THE COMMISSION MUST EXAMINE THOSE REASONS TO DETERMINE
THEIR SUFFICIENCY.  SECTION 15 FURTHER PROVIDES THAT NO APPOINTMENT
SHALL BE MADE FROM AN EXAMINATION REGISTER, EXCEPT OF 10-POINT
PREFERENCE ELIGIBLES, WHEN THERE ARE THREE OR MORE NAMES OF PREFERENCE
ELIGIBLES ON ANY APPROPRIATE REEMPLOYMENT LIST FOR THE POSITION TO BE
FILLED. 

THERE IS NO PERSUASIVE REASON WHY THE PROVISIONS OF SEC. 15 ARE NOT
APPLICABLE IN THIS CASE.  PETITIONERS MAKE A TWOFOLD ARGUMENT TO THE
CONTRARY:  (1) THAT THEIR RIGHT WAS TO PREFERENCE IN "REINSTATEMENT"
RATHER THAN IN "REEMPLOYMENT," AND THAT "REINSTATEMENT" PREFERENCE IS
GRANTED AND GOVERNED BY SEC. 2; (2) THAT SEC. 15 APPLIES ONLY TO THE
COMPETITIVE CIVIL SERVICE, FROM WHICH ATTORNEYS WERE EXCEPTED BY
REGULATIONS TAKING EFFECT MAY 1, 1947.  12 FED. REG. 2839, 5 CFR (SUPP.
1947) SEC. 6.4.  EVEN IF VALID, THE FIRST CONTENTION IS OF NO HELP TO
PETITIONERS.  "REINSTATEMENT" - TO THE EXTENT IT HAD ANY PECULIAR
MEANING IN CIVIL SERVICE PARLANCE PRIOR TO THE TIME THAT 1944 ACT WAS
PASSED - MEANT REEMPLOYMENT OF A PERSON UPON FORMAL REQUEST OF THE
APPOINTING OFFICER.  1 FED. REG. 602, 5 CFR SECS. 9.1, 9.101(1939). 
FN9  THE PREFERENCE ACCORDED VETERANS WAS THAT THEY MIGHT BE REINSTATED
WITHOUT TIME LIMIT, WHEREAS A REQUEST FOR REINSTATEMENT OF NONVETERANS
HAD TO COME WITHIN SPECIFIED PERIODS AFTER THEIR SEPARATION.  THE TERM
WAS NOT CONFINED TO REAPPOINTMENT TO A POSITION FORMERLY HELD.  AN
INVOLUNTARILY SEPARATED EMPLOYEE COULD BE REINSTATED IN ANY PART OF THE
SERVICE, AND THE COMMISSION WAS AUTHORIZED TO PROVIDE FOR SIMILAR
REINSTATEMENT OF ANY CLASSIFIED STATUS EMPLOYEE.  THE APPARENT ANALOGUE
OF THIS TYPE OF REEMPLOYMENT IS CONTAINED IN SEC. 13 OF THE 1944 ACT,
WHICH PROVIDES THAT ANY PREFERENCE ELIGIBLE "WHO HAS RESIGNED OR WHO
HAS BEEN DISMISSED OR FURLOUGHED" MAY BE APPOINTED TO ANY POSITION FOR
WHICH HE IS ELIGIBLE "AT THE REQUEST OF ANY APPOINTING OFFICER."  5
U.S.C. SEC. 862.  PETITIONERS WOULD INTERPRET SEC. 2 AS CREATING AN
ENTIRELY NEW AND ABSOLUTE RIGHT OF PREFERENCE IN "REINSTATEMENT," NOT
DEPENDENT UPON THE REQUEST OF THE APPOINTING OFFICER.  SUCH AN
INTERPRETATION WOULD NOT ONLY STRETCH SEC. 2 BEYOND ITS APPARENT AND
INTENDED SCOPE, BUT WOULD IN EFFECT STRIKE SEC. 15 OFF THE BOOKS, SINCE
NO VETERAN WOULD EVER HAVE CAUSE TO USE THE LIMITED PREFERENCE IN
REEMPLOYMENT THERE GRANTED. 

THE SECOND CLAIM, THAT SEC. 15 COVERS REEMPLOYMENT ONLY IN POSITIONS
WITHIN THE COMPETITIVE CIVIL SERVICE, IS CLEARLY ERRONEOUS.  THE
APPROPRIATE REGISTERS AND LISTS "FOR EVERY POSITION FOR WHICH HIS
QUALIFICATIONS HAVE BEEN ESTABLISHED, AS MAINTAINED BY THE CIVIL
SERVICE COMMISSION, OR AS SHALL BE MAINTAINED BY ANY AGENCY OR PROJECT
OF THE FEDERAL GOVERNMENT  ...  " 

PETITIONERS WERE LAWFULLY SEPARATED FROM THEIR POSITIONS IN THE
DEPARTMENT OF AGRICULTURE.  THEIR RIGHTS TO PREFERENCE IN REEMPLOYMENT
WERE GOVERNED BY SEC. 15 OF THE ACT.  THEY WERE ENTITLED TO THOSE
RIGHTS ONLY IF THEY REQUESTED THAT THEIR NAMES BE PLACED ON THE
APPROPRIATE REEMPLOYMENT LIST.  THEIR COMPLAINTS CONTAIN NO ALLEGATION
THAT THEY MADE SUCH A REQUEST.  AND EVEN IF THEY DID SO, THEIR
PREFERENCE RIGHTS WERE VIOLATED ONLY IF THE APPOINTING OFFICER FAILED
TO FOLLOW THE PROCEDURES SPECIFIED BY SECS. 7, 8, 15 AND PERTINENT
REGULATIONS.  AGAIN, THERE ARE NO SUCH ALLEGATIONS IN THE COMPLAINTS. 
THE COMPLAINTS AS THEY STAND ARE FATALLY DEFECTIVE IN THESE RESPECTS,
AND UNLESS PETITIONERS ON REMAND ARE ABLE TO SUPPLY THE MISSING LINKS
IN ALLEGATIONS AND PROOF, THE SECRETARY IS ENTITLED TO A SUMMARY
JUDGMENT. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED
IN PART, AND THE CASES ARE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  SO ORDERED. 

FN1  EXECUTIVE ORDER 9063, ISSUED FEBRUARY 16, 1942, AND IN EFFECT AT
ALL TIMES RELEVANT, AUTHORIZED THE CIVIL SERVICE COMMISSION TO
FORMULATE SPECIAL PROCEDURES FOR THE RECRUITMENT OF PERSONNEL DURING
THE WAR, AND FURTHER PROVIDED THAT "(PERSONS APPOINTED SOLELY BY REASON
OF ANY SPECIAL PROCEDURES ADOPTED UNDER AUTHORITY OF THIS ORDER  ...
SHALL NOT THEREBY ACQUIRE A CLASSIFIED (COMPETITIVE) CIVIL-SERVICE
STATUS, BUT, IN THE DISCRETION OF THE CIVIL SERVICE COMMISSION, MAY BE
RETAINED FOR THE DURATION OF THE WAR AND FOR SIX MONTHS THEREAFTER."  3
CFR (CUM. SUPP. 1943) 1091.  ON MARCH 16, 1942, THE BOARD OF LEGAL
EXAMINERS, FUNCTIONING UNDER THE COMMISSION, AMENDED ITS REGULATIONS TO
PROVIDE THAT ALL APPOINTMENT TO ATTORNEY POSITIONS BE EFFECTED UNDER
THIS EXECUTIVE ORDER, AND BE LIMITED TO THE DURATION OF THE WAR PLUS
SIX MONTHS.  7 FED. REG. 2201.  SEE ALSO EXECUTIVE ORDER 9230, 7 FED.
REG. 6665, 3 CFR (CUM. SUPP. 1943) 1201, 1202.  THIS REGULATION WAS
CONTINUED IN EFFECT BY SEC. 17.1(G) OF THE BOARD'S REGULATIONS, 5 CFR
(CUM. SUPP. 1943) SEC. 17.1(G), AND SEC. 17.1(G) REMAINED IN EFFECT
WHEN, BY EXECUTIVE ORDER 9358 OF JULY 1, 1943, 8 FED. REG. 9175, THE
FUNCTIONS OF THE BOARD WERE VESTED IN THE COMMISSION ITSELF.  NO
PLAUSIBLE REASON HAS BEEN OR COULD BE ADVANCED FOR HOLDING THIS
REGULATION INVALID. 

FN2  MINUTE OF THE CIVIL SERVICE COMMISSION, AUGUST 11, 1932.  SEE
CIVIL SERVICE COMMISSION, ACTS, RULES AND REGULATIONS (AS AMENDED TO
SEPTEMBER 15, 1934), P. 54. 

FN3  STATEMENT OF REPRESENTATIVE STARNES, AUTHOR OF THE BILL,
HEARINGS BEFORE SENATE COMMITTEE ON CIVIL SERVICE ON S. 1762 AND H.R.
4115, 78TH CONG., 2D SESS. 8-9; STATEMENT OF REPRESENTATIVE RAMSPECK,
CHAIRMAN OF THE CIVIL SERVICE COMMITTEE, 90 CONG. REC. 3505(1944). 

FN4  HEARINGS, SUPRA, NOTE 3 AT 9-10.  FOR A SPECIFICATION OF THIS
AND OTHER ADDITIONS TO VETERANS' RIGHTS, SEE ALSO, 90 CONG. REC. 3503;
S. REP. NO. 907, 78TH CONG., 2D SESS. 2-4; H.R. REP. NO. 1289, 78TH
CONG., 2D SESS. 3-4. 

FN5  HEARINGS, SUPRA, NOTE 3 AT 27. 

FN6  H.R. 5101, 76TH CONG., 1ST SESS.; H.R. 5147, 76TH CONG., 1ST
SESS. 

FN7  H.R. REP. NO. 1289, SUPRA, NOTE 4 AT 6. 

FN8  H.R. REP. NO. 1289, SUPRA, NOTE 4 AT 3; S. REP. NO. 907, SUPRA,
NOTE 4 AT 2; 90 CONG. REC. 3503. 

FN9  THE PROVISIONS OF PART 9 WERE SUPERSEDED IN PART BY THE WARTIME
SERVICE REGULATIONS ADOPTED IN 1943, SEC. 18.8 OF WHICH PROVIDED THAT
FORMER EMPLOYEES WITH AT LEAST ONE YEAR'S SERVICE "MAY BE REAPPOINTED
BY WAR SERVICE APPOINTMENT TO ANY POSITION FOR WHICH HE MEETS THE
STANDARDS," AND FURTHER PROVIDED THAT VETERANS WHO WOULD HAVE STATUS
FOR REINSTATEMENT UNDER PART 9 COULD BE REEMPLOYED WITHOUT REGARD TO
LENGTH OF PRIOR SERVICE.  5 CFR (SUPP. 1943) SEC. 18.8. 

MR. JUSTICE BLACK DISSENTS. 
..END :












UNITED STATES V. CHAMPLIN RFG. CO., 341 U.S. 290 


NO. 433.  ARGUED MARCH 8-9, 1951.  - DECIDED MAY 7, 1951.  - 95 F.SUPP. 
170, AFFIRMED IN PART AND REVERSED IN PART. 


APPELLEE OWNS AND OPERATES A PIPE LINE FROM ITS REFINERY IN OKLAHOMA
TO ITS TERMINALS IN OTHER STATES.  IT USES THE PIPE LINE SOLELY TO
CARRY ITS OWN REFINED PETROLEUM PRODUCTS.  NO OTHER PIPE LINE OR
REFINER HAS CONNECTIONS WITH APPELLEE'S LINE, AND NO OTHER REFINER HAS
EVER SHIPPED PRODUCTS THROUGH IT.  AT EACH OF ITS TERMINALS, APPELLEE
HAS STORAGE FACILITIES FROM WHICH IT MAKES DELIVERIES TO JOBBER
PURCHASERS, WHO SUPPLY THEIR OWN TRANSPORTATION THEREFROM.  AT TWO OF
ITS TERMINALS IT HAS ETHYL PLANTS WHERE IT PROCESSES 20% OF ITS
PRODUCTS.  APPELLEE PRESENTLY HANDLES 1.98% OF THE TOTAL PRODUCTS
CONSUMED IN ITS MARKETING AREA.  THERE ARE AMPLE COMMON-CARRIER PIPE
LINE FACILITIES AVAILABLE TO THESE MARKETS; AND NO REFINERY OR OTHER
PIPE-LINE COMPANY HAS REQUESTED A CONNECTION WITH APPELLEE.  IN AN
EARLIER PROCEEDING, CHAMPLIN REFINING CO. V. UNITED STATES, 329 U.S.
29, THIS COURT FOUND THAT APPELLEE WAS A "COMMON CARRIER" WITHIN THE
MEANING OF SEC. 1 OF THE INTERSTATE COMMERCE ACT, AND SUSTAINED A
COMMISSION ORDER UNDER SEC. 19A REQUIRING APPELLEE TO FILE VALUATION
DATA, MAPS, CHARTS, ETC. PERTAINING TO ITS OPERATIONS.  HELD: 

1.  A SUBSEQUENT ORDER OF THE COMMISSION IS SUSTAINED, INSOFAR AS IT
REQUIRES APPELLEE, UNDER SEC. 20 OF THE ACT, TO FILE ANNUAL, PERIODIC
AND SPECIAL REPORTS, AND TO INSTITUTE AND MAINTAIN A UNIFORM SYSTEM OF
ACCOUNTS APPLICABLE TO PIPE LINES.  PP. 294-297. 

2.  INSOFAR AS THE ORDER REQUIRES APPELLEE, UNDER SEC. 6 OF THE ACT,
TO PUBLISH AND FILE SCHEDULES SHOWING RATES AND CHARGES FOR INTERSTATE
TRANSPORTATION OF REFINED PETROLEUM PRODUCTS - WHICH MIGHT FORCE
APPELLEE TO DEVOTE ITS PIPE LINE, AT LEAST PARTIALLY, TO PUBLIC USE -
IT GOES BEYOND WHAT CONGRESS CONTEMPLATED WHEN IT PASSED THE ACT; AND
IT CANNOT BE SUSTAINED.  PP. 297-301. 

UNITED STATES ET AL. V. CHAMPLIN REFINING CO. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA. 

THE INTERSTATE COMMERCE COMMISSION ISSUED AN ORDER REQUIRING APPELLEE
TO TAKE CERTAIN STEPS UNDER SECS. 6 AND 20 OF THE INTERSTATE COMMERCE
ACT.  274 I.C.C. 409.  A THREE-JUDGE DISTRICT COURT DENIED
ENFORCEMENT.  95 F.SUPP.  170.  ON DIRECT APPEAL TO THIS COURT,
AFFIRMED IN PART AND REVERSED IN PART, P. 301. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

CARRIERS" ENGAGED IN THE "TRANSPORTATION" OF OIL OR OTHER COMMODITIES
SHALL BE SUBJECT TO THE REGULATORY REQUIREMENTS SPECIFIED IN OTHER
FOUND THAT CHAMPLIN, AS OWNER OF A PIPE LINE, WAS A "COMMON CARRIER"
WITHIN THE MEANING OF SEC. 1; AND ON THE RECORD THERE PRESENTED THE
COURT UPHELD AN I.C.C. ORDER UNDER SEC. 19A (A)-(E) OF THE ACT
REQUIRING THE COMPANY TO SUBMIT VALUATION DATA, MAPS, CHARTS AND OTHER
DOCUMENTS PERTAINING TO ITS OPERATIONS N2.  CHAMPLIN REFINING CO. V.
UNITED STATES, 329 U.S. 29(1946).  THE PRESENT PROCEEDING INVOLVES A
SUBSEQUENT I.C.C. ORDER DIRECTING CHAMPLIN (1) TO FILE ANNUAL, PERIODIC
AND SPECIAL REPORTS, AND TO INSTITUTE AND MAINTAIN A UNIFORM SYSTEM OF
ACCOUNTS APPLICABLE TO PIPE LINES, BOTH UNDER SEC. 20 OF THE ACT; FN3
AND (2) TO PUBLISH AND FILE SCHEDULES SHOWING THE RATES AND CHARGES FOR
INTERSTATE TRANSPORTATION OF REFINED PETROLEUM PRODUCTS, PURSUANT TO
SEC. 6.  FN4 

A SPECIALLY CONSTITUTED THREE-JUDGE DISTRICT COURT, WITH ONE MEMBER
DISSENTING, REFUSED TO ENFORCE THE ORDER ON THE GROUND THAT CHAMPLIN,
AT LEAST FOR THE PURPOSES OF SECS. 6 AND 20, IS NOT WITHIN THE CLASS OF
CARRIERS INTENDED TO BE REGULATED BY THE ACT.  IT HELD FURTHER THAT TO
IMPOSE THE REQUIREMENTS OF SEC. 6 ON CHAMPLIN WOULD BE TO TAKE ITS
PROPERTY WITHOUT DUE PROCESS IN VIOLATION OF THE FIFTH AMENDMENT.  95
F.SUPP.  170.  THE GOVERNMENT AND THE COMMISSION APPEALED, 28 U.S.C.
SECS. 1253, 2101(E), 2325. 

THE FACTS HERE ARE SUBSTANTIALLY THE SAME AS IN THE EARLIER CASE. 
CHAMPLIN OWNS AND OPERATES A PIPE LINE RUNNING FROM ITS REFINERY AT
ENID, OKLAHOMA, TO TERMINALS AT HUTCHINSON, KANSAS; SUPERIOR, NEBRASKA;
AND ROCK RAPIDS, IOWA - A DISTANCE OF 516 MILES.  IT USES THE PIPE LINE
SOLELY TO CARRY ITS OWN REFINED PETROLEUM PRODUCTS, SUCH AS GASOLINE
AND KEROSENE.  NO OTHER REFINER HAS CONNECTIONS WITH THE LINE, AND NONE
HAS EVER SHIPPED PRODUCTS THROUGH IT.  THE LINE DOES NOT CONNECT WITH
ANY OTHER PIPE LINE.  CHAMPLIN HAS STORAGE FACILITIES AT EACH OF ITS
THREE TERMINALS.  JOBBERS PURCHASING CHAMPLIN PRODUCTS SUPPLY THEIR OWN
TRANSPORTATION FROM THE STORAGE TANKS TO THEIR BULK DEPOTS. 

SINCE THE FIRST CASE, THERE HAS BEEN A CHANGE IN CHAMPLIN'S METHOD OF
QUOTING PRICES.  AT THE TIME OF THE EARLIER PROCEEDING, THE PRICE WAS
COMPUTED AS F.O.B. THE ENID REFINERY, PLUS A DIFFERENTIAL EQUAL TO THE
THROUGH RAIL RATE FROM ENID TO THE PURCHASER'S DESTINATION MINUS THE
CHARGES FOR LOCAL TRANSPORTATION BETWEEN THE NEAREST PIPE-LINE TERMINAL
AND THE DESTINATION.  HOWEVER, CHAMPLIN MADE FREQUENT AND SUBSTANTIAL
DEPARTURES FROM THIS FORMULA IN ORDER TO MEET COMPETITIVE PRICES AT
VARIOUS LOCATIONS.  IN MAY 1948, THE COMPANY BEGAN QUOTING PRICES AS
F.O.B. THE RESPECTIVE TERMINALS, A POLICY WHICH IS STILL IN EFFECT. 
BUT AS BEFORE, ADJUSTMENTS ARE MADE SO THAT DELIVERED PRICES TO JOBBERS
WILL BE COMPETITIVE WITH THOSE OFFERED BY OTHER REFINERS. 

ON THE BASIS OF THESE AND OTHER FACTS, THE GOVERNMENT CONTENDS (1)
THAT THERE ARE NO SIGNIFICANT FACTUAL DIFFERENCES BETWEEN THIS AND THE
PRIOR CASE, AND THEREFORE CHAMPLIN IS BARRED BY COLLATERAL ESTOPPEL
FROM RELITIGATING THE HOLDING OF THIS COURT THAT IT IS A "COMMON
CARRIER" ENGAGED IN "TRANSPORTATION" WITHIN THE MEANING OF SEC. 1 OF
THE ACT; (2) THAT SINCE THE DEFINITION OF "COMMON CARRIER" IN SEC. 1
APPLIES TO SECS. 6 AND 20 AS WELL AS TO SEC. 19A, THE COURT'S PRIOR
HOLDING PER SE ESTABLISHES THE VALIDITY OF THE PRESENT ORDER; (3) THAT
EVEN IF ESTOPPEL DOES NOT APPLY, THE FACTS ARE ADEQUATE UNDER THE
STATUTE TO SUPPORT THE COMMISSION'S ORDER; (4) THAT THE ALLEGED
CONSTITUTIONAL QUESTION IS FRIVOLOUS. 

CHAMPLIN CLAIMS (1) THAT FACTUAL CHANGES REMOVE THIS CASE FROM THE
REALM OF COLLATERAL ESTOPPEL; (2) THAT THE COURT SPECIFICALLY RESERVED
THE STATUTORY ISSUE PRESENTED BY THIS CASE, NAMELY WHETHER THE I.C.C.
MAY CONVERT A PRIVATE CARRIER INTO A COMMON CARRIER FOR HIRE; AND (3)
THAT THE LOWER COURT WAS CORRECT IN HOLDING THAT THE ACT VIOLATES THE
FIFTH AMENDMENT IF CONSTRUED TO AUTHORIZE THE I.C.C.'S ORDER. 

WE AGREE WITH THE GOVERNMENT THAT THERE HAVE BEEN NO SIGNIFICANT
FACTUAL CHANGES IN CHAMPLIN'S OPERATIONS SINCE THE PRIOR CASE.  THE
PRACTICE OF QUOTING PRICES F.O.B. ENID MADE IT SUPERFICIALLY MORE
OBVIOUS THAT TRANSPORTATION CHARGES WERE BEING COLLECTED, A POINT WHICH
THE COURT BROUGHT OUT.  329 U.S. AT 34.  AND THE RECORD INDICATES THAT
THE CHANGE TO AN F.O.B. TERMINAL FORMULA RESULTED IN MINOR ALTERATIONS
IN THE PATTERN OF RELATIVE DELIVERED PRICES AT VARIOUS LOCATIONS.  BUT
CHAMPLIN IS STILL TRANSPORTING, AND UNLESS IT HAS LAUNCHED ON A
CALCULATED PLAN OF BANKRUPTCY, ITS PRICES ON THE AVERAGE ARE
NECESSARILY INTENDED TO COVER TRANSPORTATION COSTS AS WELL AS OTHER
COSTS.  CHAMPLIN FURTHER POINTS OUT THAT IT HAS CONSTRUCTED ETHYL
PLANTS AT TWO OF ITS PIPE-LINE TERMINALS AND IS THERE PROCESSING SOME
20 PERCENT OF ITS PRODUCTS.  IT CLAIMS THAT THIS CHANGE MAKES THE PIPE
LINE A PART OF "MANUFACTURING" FACILITIES AND THUS BRINGS THE COMPANY
WITHIN THE UNCLE SAM RULE, WHICH EXCEPTED A CLASS OF GATHERING LINES
FROM THE COVERAGE OF THE ACT.  PIPE LINE CASES, 234 U.S. 548,
562(1914).  BUT A CHAMPLIN OFFICER TESTIFIED IN THIS CASE THAT THE
COMPANY HAS "ALWAYS DONE SOME BLENDING AND TREATING" OF ITS PRODUCTS AT
THE TERMINALS; AND 80 PERCENT OF THE PRODUCTS ARE STILL TRANSPORTED IN
THEIR FINAL FORM.  HENCE, THERE IS NO JUSTIFICATION FOR RECONSIDERING
THIS COURT'S REFUSAL TO "EXPAND THE ACTUAL HOLDING" OF THE UNCLE SAM
CASE TO INCLUDE CHAMPLIN, AND ITS RULING THAT CHAMPLIN WAS A "COMMON
CARRIER" AS DEFINED BY SEC. 1 OF THE ACT. 

HOWEVER, WE DISAGREE WITH THE GOVERNMENT'S CONTENTION THAT THE PRIOR
HOLDING DISPOSES OF ALL THE STATUTORY ISSUES IN THIS CASE.  TO BE SURE,
THE LITERAL TERMS OF THE STATUTE LEND SOME WEIGHT TO THE GOVERNMENT'S
ARGUMENT.  SECTION 1(1) PROVIDES THAT "THE PROVISIONS OF THIS PART"
SHALL APPLY TO "COMMON CARRIERS" AS DEFINED, THE WORD "PART" REFERRING
TO SECS. 1-27 INCLUSIVE.  SECTION 19A, UNDER WHICH THE EARLIER ORDER
WAS ISSUED, APPLIES TO "EVERY COMMON CARRIER SUBJECT TO THE PROVISIONS
OF THIS PART."  SECTION 20 APPLIES TO "CARRIERS," WHICH IS DEFINED IN
SUBPARAGRAPH (8) AS "COMMON (CARRIERS) SUBJECT TO THIS CHAPTER"; AND
SEC. 6 APPLIES TO "EVERY COMMON CARRIER SUBJECT TO THE PROVISIONS OF
THIS CHAPTER."  HENCE, THE COMMISSION'S JURISDICTION TO ISSUE ORDERS
UNDER ANY OF THESE SECTIONS IS DETERMINED BY A DECISION THAT A COMPANY
IS A "COMMON CARRIER" UNDER SEC. 1.  THE GOVERNMENT IN EFFECT ARGUES,
HOWEVER, THAT A DECISION AS TO JURISDICTION ALSO SETTLES THE MERITS,
THAT FACTS ADEQUATE TO SUPPORT A SPECIFIC VALUATION ORDER UNDER SEC.
19A ARE ALSO ADEQUATE TO SUPPORT AN ORDER UNDER SECS. 6 AND 20.  BUT
THIS IS THE VERY CONCLUSION WHICH THIS COURT NECESSARILY REJECTED IN
CHAMPLIN I. IN THAT CASE, IT WAS CHAMPLIN WHICH ARGUED THAT AN
INTERPRETATION ENCOMPASSING IT WITHIN SEC. 1 WOULD CONVERT A PRIVATE
PIPE LINE INTO A PUBLIC UTILITY AND REQUIRE IT TO BECOME A COMMON
CARRIER IN FACT.  BUT THE COURT STATED THAT "OUR CONCLUSION RESTS ON NO
SUCH BASIS AND AFFORDS NO SUCH IMPLICATION.  ...  THE CONTENTION  ...
IS TOO PREMATURE AND HYPOTHETICAL TO WARRANT CONSIDERATION  ...  "  329
U.S. AT 35.  IN HOLDING MERELY THAT CHAMPLIN COULD BE REQUIRED TO
SUBMIT INFORMATION AS A "COMMON CARRIER" UNDER THE ACT, THE COURT
PLAINLY INDICATED THAT THE APPLICATION OF MORE RIGOROUS SANCTIONS WOULD
BE RESERVED FOR TREATMENT AS AN INDEPENDENT STATUTORY ISSUE ON A PROPER
RECORD. 

THE REASONS FOR THIS APPROACH WERE SUGGESTED IN VALVOLINE OIL CO. V.
UNITED STATES, 308 U.S. 141, 146(1939).  COLLECTION OF INFORMATION HAS
A SIGNIFICANCE INDEPENDENT FROM THE IMPOSITION OF REGULATIONS, WHETHER
OR NOT SUCH REGULATIONS EVER COME FORTH.  VALUATION AND COST DATA FROM
COMPANIES NOT SUBJECT TO RATE MAKING MAY ADD TO THE STATISTICAL
RELIABILITY OF STANDARDS IMPOSED ON THOSE COMPANIES WHICH ARE. 
"PUBLICITY ALONE MAY GIVE EFFECTIVE REMEDY TO ABUSES, IF ANY THERE
BE."  ID. AT 146.  DISCLOSURE MAY ALTER THE FUTURE COURSE OF A COMPANY
OTHERWISE DISPOSED TO INDULGE IN ACTIVITIES WHICH THE STATUTE
CONDEMNS.  DISCLOSURE PROVIDES THE BASIS FOR PROMPT ACTION SHOULD A
FUTURE CHANGE IN CIRCUMSTANCES MAKE FULL-SCALE REGULATION APPROPRIATE. 
FINALLY, REPORTS MAY BRING TO LIGHT NEW ABUSES AND THUS PROVIDE THE
GROUND-WORK FOR FUTURE STATUTORY AMENDMENTS.  WE ASSUME THAT THE
CONGRESS WHICH PASSED THE INTERSTATE COMMERCE ACT WAS WELL AWARE OF
THESE BENEFITS.  WE CONCLUDE, AS BEFORE, THAT THE CONGRESS DID NOT MEAN
TO ESCHEW THEM BY OMITTING A GENERAL PROVISION EMPOWERING THE
COMMISSION TO COLLECT PERTINENT DATA FROM ALL INTERSTATE PIPE LINES. 

THE PRIOR HOLDING, THEREFORE, SUPPORTS THAT PART OF THE COMMISSION'S
ORDER INVOLVING SEC. 20 OF THE ACT.  THE REQUIREMENT OF ANNUAL AND
SPECIAL REPORTS CANNOT BE DIFFERENTIATED FROM A REQUEST FOR MAPS,
CHARTS AND VALUATION DATA.  THE REQUIREMENT THAT CHAMPLIN MAINTAIN A
UNIFORM SYSTEM OF ACCOUNTS IS SOMEWHAT MORE BURDENSOME, BUT WE THINK
ITS INDEPENDENT VALUE AS A MEASURING ROD FOR COMPANIES FULLY REGULATED
UNDER THE ACT IS CLEARLY SUFFICIENT TO JUSTIFY THE COMMISSION'S
REQUESTING SO MUCH AS IS PERTINENT. 

AT THE SAME TIME, WE FIND IT HARD TO CONCLUDE, DESPITE THE GENERALITY
OF THE STATUTORY TERMS USED, THAT CONGRESS INTENDED TO APPLY THE
SANCTIONS OF SEC. 6 - IMPOSING THE DUTY OF SERVING THE PUBLIC AT
REGULATED RATES - ON ALL PRIVATE PIPE LINES MERELY BECAUSE THEY CROSS
STATE LINES.  THE STATUTE CANNOT BE DIVORCED FROM THE CIRCUMSTANCES
EXISTING AT THE TIME IT WAS PASSED, AND FROM THE EVIL WHICH CONGRESS
SOUGHT TO CORRECT AND PREVENT.  THE CIRCUMSTANCES AND THE EVIL ARE WELL
KNOWN.  PIPE LINES WERE FEW IN NUMBER AND HEAVILY CONCENTRATED UNDER
THE CONTROL OF ONE COMPANY, STANDARD OIL.  THAT COMPANY, THROUGH THE
OWNERSHIP OF SUBSIDIARIES AND AFFILIATES, HAD "MADE ITSELF MASTER OF
THE ONLY PRACTICABLE OIL TRANSPORTATION BETWEEN THE OIL FIELDS EAST OF
CALIFORNIA AND THE ATLANTIC OCEAN AND CARRIED MUCH THE GREATER PART OF
THE OIL BETWEEN THOSE POINTS.  ...  AVAILING ITSELF OF ITS MONOPOLY OF
THE MEANS OF TRANSPORTATION (IT) REFUSED THROUGH ITS SUBORDINATES TO
CARRY ANY OIL UNLESS THE SAME WAS SOLD TO IT OR TO THEM  ...  ON TERMS
MORE OR LESS DICTATED BY ITSELF."  PIPE LINE CASES, SUPRA, AT 559. 
SMALL INDEPENDENT PRODUCERS - WHO LACKED THE RESOURCES TO CONSTRUCT
THEIR OWN LINES, OR WHOSE OUTPUT WAS SO SMALL THAT A PIPE LINE BUILT TO
CARRY THAT OUTPUT ALONE WOULD BE ECONOMICALLY UNFEASIBLE - WERE IN A
DESPERATE COMPETITIVE POSITION.  THERE IS LITTLE DOUBT, FROM THE
LEGISLATIVE HISTORY, THAT THE ACT WAS PASSED TO ELIMINATE THE
COMPETITIVE ADVANTAGE WHICH EXISTING OR FUTURE INTEGRATED COMPANIES
MIGHT POSSESS FROM EXCLUSIVE OWNERSHIP OF A PIPE LINE. 

THIS EVIL COULD NOT HAVE BEEN REACHED BY BRINGING WITHIN THE COVERAGE
OF THE ACT ONLY THOSE PIPE LINES WHO WERE COMMON CARRIERS FOR HIRE IN
THE COMMON-LAW SENSE.  ATTEMPTS SO TO LIMIT THE ACT'S SCOPE WERE MADE
DURING THE COURSE OF CONGRESSIONAL DEBATES.  SENATOR LODGE, SPONSOR OF
THE PRINCIPAL AMENDMENT, RENDERED THE OBVIOUS ANSWER THAT SUCH AN
ALTERATION WOULD "ABSOLUTELY DESTROY (THE PROPOSAL)  ...  SO FAR AS ITS
EFFECTIVENESS IS CONCERNED."  40 CONG. REC. 7000(1906).  HENCE THE BILL
AS FINALLY ENACTED WAS CLEARLY INTENDED "TO BRING WITHIN ITS SCOPE PIPE
LINES THAT ALTHOUGH NOT TECHNICALLY COMMON CARRIERS YET WERE CARRYING
ALL OIL OFFERED, IF ONLY THE OFFERERS WOULD SELL AT THEIR PRICE."  PIPE
LINE CASES, SUPRA, AT 560.  AND SEE VALVOLINE OIL CO. V. UNITED STATES,
SUPRA.  WE MAY ALSO ASSUME FOR PURPOSES OF ARGUMENT - NO SUCH FACTS
EVER HAVING BEEN BEFORE THIS COURT - THAT THE GENERALITY OF THE TERM
"ALL PIPE LINES" WAS MEANT TO IMPOSE FULL REGULATION ON INTEGRATED
PRODUCER PIPE LINES WHO EXPLOIT A COMPETITIVE ADVANTAGE SIMPLY BY
REFUSING TO DEAL WITH INDEPENDENT PRODUCERS HAVING NO COMPARABLY CHEAP
METHOD OF REACHING CONSUMING MARKETS.  BUT IT WOULD BE STRANGE TO
SUPPOSE THAT CONGRESS, IN ADOPTING A TERM BROAD ENOUGH TO COVER ALL
COMPETITIVE IMBALANCES WHICH MIGHT ARISE, INTENDED THAT THE COMMISSION
SHOULD MAKE COMMON CARRIERS FOR HIRE OUT OF PRIVATE PIPE LINES WHOSE
SERVICES WERE UNUSED, UNSOUGHT AFTER, AND UNNEEDED BY INDEPENDENT
PRODUCERS, AND WHOSE PRESENCE FOSTERS COMPETITION IN MARKETS HEAVILY
BLANKETED BY LARGE "MAJORS."  SUCH A STEP WOULD AT BEST BE POINTLESS;
IT MIGHT WELL SUBVERT THE CHIEF PURPOSE OF THE ACT. 

YET ON THE RECORD BEFORE US, THIS IS PRECISELY WHAT THE COMMISSION IS
ATTEMPTING TO DO.  UNLIKE THE CRUDE-OIL GATHERING LINES OF VALVOLINE,
WHICH CARRIED THE PRODUCTS OF OVER 3,800 INDEPENDENT OWNERS AND
OPERATORS, CHAMPLIN'S REFINED-PRODUCTS LINE CARRIES ONLY ITS OWN.  FN5
THE GOVERNMENT CONCEDES THAT THE ORDER UNDER SEC. 6 CARRIES A NECESSARY
IMPLICATION THAT CHAMPLIN MAY NOW BE FORCED TO DEVOTE ITS PIPE LINE, AT
LEAST PARTIALLY, TO PUBLIC USE.  NEVERTHELESS, THE COMMISSION HAS NOT
ONLY FAILED TO DISCLOSE CIRCUMSTANCES WHICH THE ACT WAS PASSED TO
CORRECT, BUT HAS EITHER ASSUMED OR MADE FINDINGS TO THE CONTRARY.  IN
ADDITION TO FINDINGS PREVIOUSLY REFERRED TO, THE COMMISSION STATED AS
FOLLOWS:    "ONLY ABOUT 1.98 PERCENT OF THE TOTAL GASOLINE CONSUMED IN
(CHAMPLIN'S MARKETING) AREA IS MOVED THROUGH THE PIPE LINE AND SOLD
FROM RESPONDENT'S TERMINAL STORAGE FACILITIES.  ...  THE TOTAL CAPACITY
OF THE COMMON-CARRIER LINES INTO THE NEBRASKA MARKET IS ABOUT 13 TIMES
THAT OF THE CHAMPLIN LINE AND ABOUT 10 TIMES THAT OF THE LATTER INTO
THE IOWA MARKET.  THE COMMON-CARRIER PIPE-LINE CAPACITY AVAILABLE TO
REFINERIES IN OKLAHOMA AND KANSAS AGGREGATES 172,800 BARRELS A DAY (IN
CONTRAST TO CHAMPLIN'S CAPACITY OF 9,800 BARRELS), AND RESPONDENT'S
PIPE LINE IS THE SMALLEST OF ANY COMMON-CARRIER OR PRIVATE PIPE LINE
OPERATING IN THIS TERRITORY.  APPARENTLY, COMMON-CARRIER PIPE-LINE
TRANSPORTATION IS AVAILABLE TO ANY SMALL REFINER IN THIS AREA DESIRING
SUCH TRANSPORTATION. 

     .         .         .         .         . 

"SO FAR AS APPEARS, NO OTHER PIPE-LINE COMPANY HAS THREATENED TO
FORCE  ...  A CONNECTION (WITH CHAMPLIN'S), AND BECAUSE OF THE AMPLE
COMMON-CARRIER PIPE-LINE FACILITIES AVAILABLE, AS REVEALED BY
RESPONDENT, NO REFINERY WOULD BE LIKELY TO INTEREST ITSELF IN SUCH A
CONNECTION."  274 I.C.C. 412-413, 415(1949). 

THE COURT BELOW, IN ITS FINDINGS OF FACT, CONCLUDED THAT "CHAMPLIN
DOES NOT HAVE A MONOPOLY OR ANY POWER TO ESTABLISH A MONOPOLY EITHER IN
THE TRANSPORTATION OF PETROLEUM PRODUCTS INTO THE TRADE TERRITORY OR IN
THE SALE OF PETROLEUM PRODUCTS THEREIN."  IT FURTHER FOUND THAT
"CHAMPLIN ...  IS A SMALL COMPANY IN COMPARISON WITH COMPANIES WITH
WHICH IT COMPETES IN THE AREA REACHED BY ITS PIPE LINE.  ...
CHAMPLIN'S ACTS CREATE COMPETITION."  SEE ALSO CHAIRMAN SPLAWN,
DISSENTING FROM THE COMMISSION REPORT.  274 I.C.C. 416.  FN6  THE
GOVERNMENT SEEKS TO REBUILD ITS CASE BY POINTING TO SMALL REFINERS WHO
ARE CLOSER TO CHAMPLIN'S PIPE LINE THAN TO ANY OTHER, AND BY STRESSING
THE EXPENSE OF BUILDING LONG CONNECTING LINES.  BUT THERE IS NO
EVIDENCE THAT ANY OF THESE REFINERS WISH TO MARKET OUTSIDE THEIR
IMMEDIATE AREA.  AND IN ANY EVENT, IT IS NOT THE FUNCTION OF THIS COURT
TO RESCUE THE COMMISSION BY MAKING FINDINGS DE NOVO WHICH THE
COMMISSION ITSELF WAS UNABLE OR UNWILLING TO MAKE.  WE HOLD THAT ON
THIS RECORD THE COMMISSION'S ORDER, INSOFAR AS IT CONCERNS SEC. 6, GOES
BEYOND WHAT CONGRESS CONTEMPLATED WHEN IT PASSED THE ACT. 

THE JUDGMENT BELOW WILL BE MODIFIED BY STRIKING OUT THOSE PORTIONS
SETTING ASIDE THE COMMISSION'S ORDER IN CAUSE NO. 29912, CHAMPLIN
REFINING COMPANY ACCOUNTS AND REPORTS, AND AS MODIFIED, IT IS
AFFIRMED.  SO ORDERED. 

FN1  49 U.S.C. SEC. 1: 

"(1)  CARRIERS SUBJECT TO REGULATION. 

"THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO COMMON CARRIERS
ENGAGED IN - 

     .         .         .         .         . 

"(B)  THE TRANSPORTATION OF OIL OR OTHER COMMODITY, EXCEPT WATER AND
EXCEPT NATURAL OR ARTIFICIAL GAS, BY PIPE LINE  ... 

     .         .         .         .         . 

"(3) ...  (A)  THE TERM 'COMMON CARRIER' AS USED IN THIS CHAPTER
SHALL INCLUDE ALL PIPE-LINE COMPANIES; ...  " 

FN2  49 U.S.C. SEC. 19A: 

"(A)  PHYSICAL VALUATION OF PROPERTY OF CARRIERS; CLASSIFICATION AND
INVENTORY. 

"THE COMMISSION SHALL  ...  INVESTIGATE, ASCERTAIN, AND REPORT THE
VALUE OF ALL THE PROPERTY OWNED OR USED BY EVERY COMMON CARRIER SUBJECT
TO THE PROVISIONS OF THIS CHAPTER  ... 

     .         .         .  .         . 

"(E)  ...  EVERY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS
CHAPTER SHALL FURNISH TO THE COMMISSION OR ITS AGENTS FROM TIME TO TIME
AND AS THE COMMISSION MAY REQUIRE MAPS, PROFILES, CONTRACTS, REPORTS OF
ENGINEERS, AND ANY OTHER DOCUMENTS  ...  " 

FN3  49 U.S.C. SEC. 20: 

"(1)  REPORTS FROM CARRIERS AND LESSORS. 

"THE COMMISSION IS AUTHORIZED TO REQUIRE ANNUAL, PERIODICAL, OR
SPECIAL REPORTS FROM CARRIERS ... 

     .         .         .         .         . 

"(3)  UNIFORM SYSTEM OF ACCOUNTS. 

"THE COMMISSION MAY, IN ITS DISCRETION, FOR THE PURPOSE OF ENABLING
IT THE BETTER TO CARRY OUT THE PURPOSES OF THIS CHAPTER, PRESCRIBE A
UNIFORM SYSTEM OF ACCOUNTS APPLICABLE TO ANY CLASS OF CARRIERS SUBJECT
THERETO  ... 

"(4)  DEPRECIATION CHARGES. 

"THE COMMISSION SHALL  ...  PRESCRIBE FOR CARRIERS THE CLASSES OF
PROPERTY FOR WHICH DEPRECIATION CHARGES MAY PROPERLY BE INCLUDED UNDER
OPERATING EXPENSES, AND THE RATE OR RATES OF DEPRECIATION WHICH SHALL
BE CHARGED  ... 

     .         .         .         . . 

"(8)  ...  THE TERM 'CARRIER' MEANS A COMMON CARRIER SUBJECT TO THIS
CHAPTER  ...  " 

FN4  49 U.S.C. SEC. 6: 

"(1)  SCHEDULE OF RATES, FARES, AND CHARGES; FILING AND POSTING. 

"EVERY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS CHAPTER SHALL
FILE WITH THE COMMISSION ...  AND PRINT AND KEEP OPEN TO PUBLIC
INSPECTION SCHEDULES SHOWING ALL THE RATES, FARES, AND CHARGES FOR
TRANSPORTATION  ...  " 

REASONABLE."  49 U.S.C. SEC. 1(5). 

FN5  CHAMPLIN IS SOLE OWNER OF THE STOCK OF THE CIMARRON VALLEY PIPE
LINE COMPANY, AN INTRASTATE CRUDE-OIL GATHERING SYSTEM WHICH SUPPLIES
OIL FROM BOTH ITS OWN AND OTHERS' WELLS TO THE CHAMPLIN REFINERY. 
HOWEVER, THE COMMISSION BOTH IN THIS CASE AND IN CHAMPLIN I GAVE NO
CONSIDERATION, EITHER IN THE HEARINGS OR THE ORDERS, TO CHAMPLIN'S
GATHERING FACILITIES. 

IN ANY EVENT, IT WOULD SEEM THAT CHAMPLIN'S EXCLUSIVE OWNERSHIP OF
THE REFINED-PRODUCTS LINE WOULD BE OF NO CONCERN TO INDEPENDENT CRUDE
OIL PRODUCERS UNLESS THE FOLLOWING ASSUMPTIONS WERE TRUE:  (A) THAT
INDEPENDENT REFINERS WERE SHUT OUT OF GASOLINE MARKETS WHICH THEY WOULD
OTHERWISE ENTER; (B) THAT THIS REDUCED THEIR OUTPUT BELOW THE CAPACITY
OF THEIR REFINERIES; (C) THAT THIS DECREASED THEIR DEMAND FOR CRUDE
OIL, THUS REDUCING THEIR COMPETITION WITH CHAMPLIN IN THE PURCHASE OF
CRUDE, AND THUS DEPRESSING THE PRICE WHICH CRUDE-OIL PRODUCERS COULD
GET.  AS TO THE FIRST, AND CRUCIAL, ASSUMPTION, THE COMMISSION FOUND
PRECISELY TO THE CONTRARY.  SEE TEXT, INFRA. 

FN6  " ...  (THE) EVIDENCE IS CLEAR THAT THERE HAS BEEN, AND IS, NO
HOLDING OUT BY CHAMPLIN OF A COMMON-CARRIER SERVICE EITHER DIRECTLY OR
INDIRECTLY.  NONE OF THE PRODUCTS MOVED THROUGH THE LINE HAS EVER BEEN
PURCHASED FROM ANY OTHER INTEREST.  MOREOVER, THE EVIDENCE SHOWS THAT
THE PRODUCTS TRANSPORTED THROUGH CHAMPLIN'S PIPE LINE CONSTITUTES AN
INCONSEQUENTIAL PART OF THE TOTAL VOLUME OF PRODUCTS THAT MOVES BY PIPE
LINE TO THE CONSUMING TERRITORY SERVED BY CHAMPLIN FROM ITS STORAGE
FACILITIES. 

"REQUIRING CHAMPLIN TO COMPLY WITH OUR VALUATION ORDERS AND THE
REQUIREMENTS OF SECTION 20 OF THE ACT  ...  IS ONE THING, BUT TO
REQUIRE IT TO FILE TARIFFS AND THEREBY OBLIGATE ITSELF TO TRANSPORT OIL
PRODUCTS OF OTHERS IN COMMON-CARRIER SERVICE, TO THE EXCLUSION OF ITS
OWN, IS SOMETHING ENTIRELY DIFFERENT. 

     .         .         .         .         . 

"THE PURPOSE OF THE AMENDMENT IN 1906 WAS TO PROTECT SMALL
INDEPENDENT PRODUCERS FROM MONOPOLY POWER.  THIS REPORT CONSTRUES THAT
AMENDMENT SO AS TO CONVERT INTO A COMMON CARRIER THE PIPE LINE WHOLLY
OWNED AND COMPLETELY UTILIZED BY A RELATIVELY SMALL INDEPENDENT
COMPANY, THOUGH THE COMPANY IS WHOLLY DEPENDENT UPON SUCH FACILITY  ...
IN THE CONDUCT OF ITS REFINING BUSINESS.  THIS ULTRA LITERAL
CONSTRUCTION REGARDLESS OF DIFFERING CONDITIONS AND CIRCUMSTANCES MIGHT
WELL HAVE THE EFFECT OF DESTROYING SMALL INDEPENDENT COMPANIES INSTEAD
OF AFFORDING THEM THE PROTECTION INTENDED BY THE AMENDMENT." 

MR. JUSTICE FRANKFURTER, WHILE JOINING THE COURT'S OPINION, WOULD
OVERRULE THE EARLIER CHAMPLIN DECISION, 329 U.S. 29, ON THE GROUND SET
FORTH IN THE DISSENT IN THAT CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE
BURTON CONCUR, CONCURRING IN PART AND DISSENTING IN PART. 

THE TERM "COMMON CARRIER" HAS BUT ONE MEANING IN THE ACT - THE
MEANING GIVEN IT BY SEC. 1.  THAT DEFINITION WAS HELD IN CHAMPLIN
REFINING CO. V. UNITED STATES, 329 U.S. 29, SUFFICIENTLY BROAD TO
INCLUDE APPELLEE.  SECTION 19A WAS INVOLVED THERE AND SEC. 6 IS
INVOLVED HERE.  THAT MAY MAKE A CONSTITUTIONAL DIFFERENCE; BUT THERE
CAN BE NONE SO FAR AS THE STATUTE IS CONCERNED.  SINCE SEC. 6, LIKE
SEC. 19A, CAN REACH APPELLEE ONLY THROUGH SEC. 1, IF SEC. 1 IS BROAD
ENOUGH FOR THE ONE SECTION IT IS BROAD ENOUGH FOR THE OTHER.  AS THE
COURT IN ITS SEVERAL DECISIONS HAS NOT BEEN CONSISTENT IN ITS
INTERPRETATION OF THE SCOPE OF THE ACT AS APPLIED TO PRIVATE PIPE
LINES, I FEEL FREE TO FOLLOW THE PRECEDENT OF THE PIPE LINE CASES, 234
U.S. 548, 561-562, AND THE VIEW EXPRESSED IN THE DISSENT IN CHAMPLIN
REFINING CO. V. UNITED STATES, 329 U.S. 29, THAT PIPE LINES CARRYING
ONLY THE COMMODITIES OF THEIR OWNERS FROM THE OWNERS' REFINERIES TO THE
OWNERS' STORAGE TANKS FOR MARKETING HAVE NOT BEEN MADE BY CONGRESS
SUBJECT TO THE ACT.  CONSEQUENTLY, I AGREE THAT SEC. 1 IS NOT BROAD
ENOUGH TO BRING APPELLEE UNDER THE REGULATORY POWER OF THE INTERSTATE
COMMERCE COMMISSION.  THEREFORE, NEITHER SEC. 6 NOR SEC. 20 APPLIES. 

MR. JUSTICE BLACK, DISSENTING. 

FROM WHATEVER ANGLE THIS CASE IS APPROACHED, IT SEEMS TO ME THAT THE
HOLDING OF THE COURT IS WRONG.  THE DECISION RIDES ROUGHSHOD OVER CLEAR
STATUTORY LANGUAGE MAKING THE HEPBURN ACT  FN1 APPLICABLE TO INTERSTATE
OIL-CARRYING PIPE LINES, AND MAKES IMPOSSIBLE ENFORCEMENT OF THE ACT AS
CONGRESS INTENDED.  THE DECISION UNDERCUTS AND I THINK OVERRULES
SEVERAL PRIOR CASES WITHOUT MENTIONING THIS FACT.  AND THIS APPELLANT,
CHAMPLIN, IS EVEN GIVEN A SECOND TRIAL AND VICTORIOUS RELITIGATION OF
THE SAME ISSUES WE HAD PREVIOUSLY DETERMINED AGAINST IT.  FINALLY, THE
OPINION SUGGESTS TO ME THAT THE COURT ACCEPTS WHAT I DEEM TO BE A
FRIVOLOUS CONSTITUTIONAL CHALLENGE TO THE ACT, NAMELY THAT CONGRESS IS
WITHOUT POWER TO FORCE OIL-CARRYING INTERSTATE PIPE LINES TO SERVE AS
COMMON CARRIERS FOR HIRE. 

                 I. 

THE COURT'S HOLDING THAT CHAMPLIN MUST COMPLY WITH SEC. 20 OF THE
HEPBURN ACT, BUT NEED NOT COMPLY WITH SEC. 6, CANNOT BE RECONCILED WITH
CLEAR LANGUAGE IN THOSE SECTIONS OR WITH OUR PREVIOUS DECISIONS
CONSTRUING THE SAME LANGUAGE.  SECTION 20 AUTHORIZES THE INTERSTATE
COMMERCE COMMISSION TO REQUIRE THAT "ALL COMMON CARRIERS SUBJECT TO THE
PROVISIONS OF THIS ACT"  FN2  FILE, AMONG OTHER THINGS, CERTAIN ANNUAL
REPORTS; SEC. 6 COMMANDS THAT "EVERY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF THIS ACT"  FN2  SHALL FILE SCHEDULES OF RATES WITH THE
COMMISSION.  I DO NOT UNDERSTAND WHY IT SHOULD BE NECESSARY TO LABOR
THE OBVIOUS - THIS LANGUAGE REQUIRES CHAMPLIN (IF IT IS A "COMMON
CARRIER SUBJECT TO THE  ...  ACT") TO COMPLY WITH SEC. 6 IF IT IS
REQUIRED TO COMPLY WITH SEC. 20, OR TO COMPLY WITH SEC. 20 IF IT IS
REQUIRED TO COMPLY WITH SEC. 6.  THE COURT HOLDS THAT CHAMPLIN IS A
"COMMON CARRIER SUBJECT TO" THE ACT, AND ACCORDINGLY SUSTAINS THE
COMMISSION'S ORDER TO FILE REPORTS UNDER SEC. 20.  PARADOXICALLY,
HOWEVER, IT THEN PROCEEDS TO HOLD THAT THE SAME CHAMPLIN, THOUGH
"SUBJECT TO" THE ACT, NEED NOT COMPLY WITH SEC. 6.  HOW THE COURT GIVES
THE IDENTICAL LANGUAGE IN THE TWO SECTIONS SUCH DIFFERENT MEANINGS IS
LEFT A MYSTERY.  FN4 

THE COURT MAY BE SAYING THAT SEC. 6 IS SOMETHING SUI GENERIS, THAT NO
PIPE-LINE COMPANY NEED COMPLY WITH THAT SECTION UNLESS IT IS SOMETHING
MORE THAN A "COMMON CARRIER SUBJECT TO THE  ... ACT."  FN5  WHILE THE
MEANING OF THIS "SOMETHING MORE" IS NOT MADE CLEAR, THE COURT, IN
OVERTURNING THE COMMISSION ORDER DOES SUGGEST IN PASSING THAT IT MIGHT
POSSIBLY SUSTAIN AN ORDER REQUIRING CHAMPLIN TO COMPLY WITH SEC. 6 UPON
COMMISSION FINDINGS THAT THE COMPANY EXPLOITED "A COMPETITIVE ADVANTAGE
SIMPLY BY REFUSING TO DEAL WITH INDEPENDENT PRODUCERS HAVING NO
COMPARABLY CHEAP METHOD OF REACHING CONSUMING MARKETS" OR THAT CHAMPLIN
ENJOYED A "MONOPOLY" POSITION IN ITS AREA.  CERTAINLY NOTHING IN THE
HEPBURN ACT SHOULD ENCOURAGE SUCH JUDICIAL CREATIVENESS FOR SEC. 6
APPLIES TO "EVERY COMMON CARRIER SUBJECT TO THE  ...  ACT" IN LANGUAGE
WHICH DOES NOT LOGICALLY ADMIT OF LIMITING THE SECTION'S COVERAGE TO
CARRIERS THAT HAVE REFUSED "TO DEAL WITH INDEPENDENT PRODUCERS" OR
ACHIEVED "MONOPOLY" STATUS.  THAT SEC. 6 WOULD OR COULD BE THUS
RESTRICTED WAS NOT HINTED AT IN THE PIPE LINE CASES, 234 U.S. 548(WHERE
THIS SECTION WAS INVOLVED), NOR IN VALVOLINE OIL CO. V. UNITED STATES,
308 U.S. 141,  FN6  NOR IN OUR DECISION IN THE FIRST CHAMPLIN CASE,
CHAMPLIN RFG.  CO. V. UNITED STATES, 329 U.S. 29.  FN7  IT SHOULD BE
NOTED THAT THE DISSENTING JUSTICES IN CHAMPLIN I THOUGHT THAT AN
ADDITIONAL "SOMETHING" WAS NECESSARY BEFORE THE HEPBURN ACT WAS
APPLICABLE; THEY BELIEVED THAT NONE OF THE ACT'S PROVISIONS SHOULD
APPLY TO PIPE-LINE COMPANIES UNLESS THEY WERE "COMMON CARRIERS IN
SUBSTANCE."  BUT NEITHER THOSE JUSTICES NOR ANYONE ELSE, SO FAR AS I
KNOW, HAVE EVER BEFORE SUGGESTED THAT THE COURT CAN PICK AND CHOOSE
POSSIBILITY REMAINED FOR TODAY'S MAJORITY TO DISCOVER, 46 YEARS AFTER
PASSAGE OF THE HEPBURN ACT.  FN8

                                 II. 

FAR MORE IMPORTANT THAN THE JUDICIAL EXEMPTION OF CHAMPLIN FROM
FILING PAPERS UNDER SEC. 6, HOWEVER, IS THE COURT'S HOLDING THAT PIPE
LINE COMPANIES ENGAGED IN INTERSTATE TRANSPORTATION OF THEIR OWN
PETROLEUM PRODUCTS NEED NOT ACT AS PUBLIC CARRIERS FOR HIRE UNLESS THEY
HAVE ALREADY VOLUNTARILY BECOME "SOMETHING MORE" THAN INTERSTATE OIL
CARRYING PIPE LINES.  THE PROPER ANSWER TO THIS BASIC QUESTION IN THE
CASE TURNS ON SEC. 1 OF THE HEPBURN ACT:  "(THIS) ACT SHALL APPLY TO
ANY CORPORATION OR ANY PERSON OR PERSONS ENGAGED IN THE TRANSPORTATION
OF OIL OR OTHER COMMODITY ...  BY MEANS OF PIPE LINES  ...  WHO SHALL
BE CONSIDERED AND HELD TO BE COMMON CARRIERS WITHIN THE MEANING AND
PURPOSE OF THIS ACT  ...  "  FN9    THAT CHAMPLIN IS A COMMON CARRIER
WITHIN THE LITERAL LANGUAGE OF THIS PROVISION IS SHOWN BY THE
UNCHALLENGED FINDINGS OF FACT MADE BY THE I.C.C.:  CHAMPLIN, A FULLY
INTEGRATED COMPANY, PRODUCES, REFINES, TRANSPORTS AND MARKETS PETROLEUM
PRODUCTS.  THROUGH A WHOLLY OWNED SUBSIDIARY IT ALSO BUYS, GATHERS AND
TRANSPORTS TO ITS REFINERY OIL PRODUCED FROM THE WELLS OF OTHERS.  FN10
ITS TRUNK PIPE LINE EXTENDS 516 MILES ACROSS FIVE STATES FROM ITS
REFINERY AT ENID, OKLAHOMA, TO ITS TERMINAL AT ROCK RAPIDS, IOWA. 
ALTHOUGH APPLICATION OF THE ACT DOES NOT DEPEND ON A PIPE-LINE
COMPANY'S SIZE, CHAMPLIN IS BY NO MEANS A SMALL COMPANY; RATHER, IT
OCCUPIES AN IMPORTANT POSITION IN THE AREA IT SERVES.  FN11  BUT FOR
THE COURT'S HOLDING, I SHOULD HAVE THOUGHT THAT SEC. 1 OF THE ACT ON
THE ADMITTED FACTS OBVIOUSLY REQUIRED CHAMPLIN TO SERVE AS A COMMON
CARRIER FOR THE PRODUCTS OF OTHERS. 

THAT THE HEPBURN ACT DID CONVERT CHAMPLIN INTO A PUBLIC CARRIER FOR
HIRE IS MADE EVEN CLEARER BY THE LEGISLATIVE HISTORY.  THE PIPE-LINE
PROVISION WAS SPONSORED IN 1906 BY SENATOR HENRY CABOT LODGE OF
MASSACHUSETTS WHO OFFERED TO AMEND A PENDING RAILROAD BILL IN A MANNER
WHICH WOULD CONVERT INTERSTATE OIL-CARRYING PIPE LINES INTO COMMON
CARRIERS SUBJECT TO REGULATION BY THE I.C.C.  FN12  THE LODGE AMENDMENT
REFLECTED DISSATISFACTION WITH MONOPOLY CONDITIONS IN THE PETROLEUM
INDUSTRY.  SUCH CONDITIONS, IT WAS THOUGHT, HAD BEEN BROUGHT ABOUT IN
THE MAIN THROUGH CONTROL OF OIL-CARRYING PIPE LINES BY LARGE INTEGRATED
COMPANIES (ESPECIALLY THE STANDARD OIL COMPANY) WHICH WERE USING THEIR
CONTROL TO EXCLUDE INDEPENDENT PRODUCERS AND REFINERS FROM THIS CHEAP
TRANSPORTATION FACILITY.  FN13  BUT THE ENSUING DEBATE LEFT NO ROOM FOR
DOUBT THAT THE PURPOSE OF THE AMENDMENT, AS ITS LANGUAGE CLEARLY
SHOWED, WAS TO DEPRIVE ANY OIL COMPANY, NOT MERELY STANDARD,  FN14  OF
POWER TO UTILIZE PIPE-LINE CONTROL TO CRUSH COMPETITION.  TO THIS END,
AS IS SHOWN BY AN APPENDIX FOLLOWING THIS OPINION, THE AMENDMENT WAS
DESIGNED TO MAKE PUBLIC OR COMMON CARRIERS FOR HIRE OUT OF EVERY
PRIVATE PIPE-LINE COMPANY TRANSPORTING PETROLEUM PRODUCTS IN INTERSTATE
COMMERCE.  SENATORS WHO WERE OPPOSED CHARGED THAT THE PASSAGE OF THE
AMENDMENT WOULD DO EXACTLY THIS AGAINST THE WILL OF "PRIVATE"
CARRIERS.  LODGE AND OTHER PROPONENTS FREELY ADMITTED IT, EXPLAINING
THAT ANYTHING LESS WOULD BE INEFFECTIVE.  ALL CONGRESSIONAL EFFORTS TO
NARROW THE AMENDMENT TO COVER ONLY COMPANIES ALREADY ACTING LIKE COMMON
CARRIERS WERE DEFEATED.  THEREFORE IT IS STRANGE TO SAY, AS THE COURT
DOES, THAT APPLYING THE PIPE-LINE PROVISIONS SO AS TO MAKE CHAMPLIN A
COMMON CARRIER FOR HIRE WOULD "SUBVERT THE CHIEF PURPOSE OF THE ACT." 
STRANGER STILL IS THE COURT'S UNEXPLAINED APPREHENSION THAT REQUIRING
ALL INTERSTATE PIPE-LINE COMPANIES TO SERVE AS PUBLIC CARRIERS FOR HIRE
WOULD SOMEHOW "FOSTER" MONOPOLY. 

       III. 

THE COURT, WITHOUT MENTIONING IT, NECESSARILY OVERRULES ONE OR MORE
OF OUR PREVIOUS DECISIONS CONSTRUING THE HEPBURN ACT.  IN THE PIPE LINE
CASES, SUPRA, IT WAS HELD THAT THE HEPBURN ACT CONVERTED INTO COMMON
CARRIERS FOR HIRE ALL PRIVATE PIPE-LINE COMPANIES "ENGAGED IN THE
TRANSPORTATION OF OIL OR OTHER COMMODITY" ACROSS STATE LINES, A
DECISION WHICH MEANT THAT ALL SUCH COMPANIES ARE BY LAW REQUIRED TO
OFFER THEIR SERVICES TO THE PUBLIC.  FN15  IN THE FIRST CHAMPLIN CASE,
SUPRA, WE DETERMINED THAT THIS APPELLANT WAS SO "ENGAGED."  FN16
CONSEQUENTLY, TODAY'S DECISION ALLOWING CHAMPLIN TO REFRAIN FROM FILING
TARIFFS UNDER SEC. 6 NECESSARILY OVERRULES EITHER THE PIPE LINE CASES
OR CHAMPLIN I, OR BOTH.  IF THEY ARE TO BE OVERRULED, THE COURT SHOULD
SAY SO.  I WOULD NOT OVERRULE EITHER. 

NOR DO I UNDERSTAND HOW TODAY'S HOLDING CAN BE RECONCILED WITH
VALVOLINE OIL CO. V. UNITED STATES, SUPRA, WHERE WE HELD THAT VALVOLINE
WAS A "COMMON CARRIER SUBJECT TO" THE ACT.  THE PATTERN OF OPERATIONS
OF VALVOLINE AND CHAMPLIN ARE IDENTICAL WITH TWO MINOR EXCEPTIONS:  (1)
VALVOLINE'S INTERSTATE PIPE LINES TRANSPORTED CRUDE OIL WHILE
CHAMPLIN'S TRUNK LINE TRANSPORTS GASOLINE.  THIS DIFFERENCE IS
IMMATERIAL; EVEN ASSUMING THAT "GASOLINE" IS NOT "OIL" WITHIN THE
MEANING OF SEC. 1, THAT SECTION MAKES THE ACT APPLY NOT MERELY TO ANY
PIPE-LINE COMPANY CARRYING "OIL" BUT TO PIPE-LINE COMPANIES CARRYING
ANY "OTHER COMMODITY."  (2) VALVOLINE CHOSE TO OPERATE ITS GATHERING
LINES AND PURCHASE OIL FROM INDEPENDENT PRODUCERS IN ITS OWN CORPORATE
NAME WHILE CHAMPLIN CHOOSES TO OPERATE ITS GATHERING LINES AND PURCHASE
OIL IN THE NAME OF A WHOLLY OWNED SUBSIDIARY.  THE COURT, HOWEVER, HAD
NO DIFFICULTY IN THE PIPE LINE CASES IN TREATING AS A SINGLE UNIT THE
STANDARD OIL COMPANY AND ITS WHOLLY OWNED OR EVEN PARTLY OWNED
SUBSIDIARIES.  FN17 

IT SHOULD BE NOTED, MOREOVER, THAT VALVOLINE UNSUCCESSFULLY MADE THE
SAME CONTENTION THAT THE COURT NOW ACCEPTS IN ORDER TO RELIEVE CHAMPLIN
FROM ITS STATUTORY DUTIES.  THUS, VALVOLINE ATTEMPTED TO AVOID BECOMING
A COMMON CARRIER FOR HIRE BY CLAIMING THAT THE ACT APPLIED ONLY TO
COMPANIES ENJOYING A MONOPOLY POSITION IN AN AREA, A POSITION NOT HELD
BY VALVOLINE BECAUSE PUBLIC PIPE LINES FOR HIRE ADEQUATELY SERVED THE
FIELDS WHERE VALVOLINE BOUGHT ITS OIL.  FN18  THE I.C.C. REFUSED TO
ACCEPT VALVOLINE'S PROPOSED INTERPRETATION OF THE ACT, AND WE
NECESSARILY DID THE SAME IN AFFIRMING THE COMMISSION'S ORDER. 

THE COURT NEVERTHELESS SEEKS TO DISTINGUISH THE VALVOLINE CASE ON THE
GROUND THAT VALVOLINE "CARRIED THE PRODUCTS OF OVER 3,800 INDEPENDENT
OWNERS AND OPERATORS."  THE QUOTED LANGUAGE CORRECTLY STATES A FACT
ONLY IF IT IS UNDERSTOOD TO MEAN THAT VALVOLINE MADE PURCHASES FROM
3,800 INDEPENDENTS AND THEN CARRIED THE PURCHASED OIL IN ITS PIPE
LINE.  THIS FACT, HOWEVER, CERTAINLY DOES NOT DISTINGUISH THE TWO
CASES.  LIKE VALVOLINE, CHAMPLIN CARRIES THE "OIL OF OTHERS" ALL THE
WAY FROM THE WELL TO THE MARKET AREA:  OVER HALF OF THE OIL AND
GASOLINE CARRIED BY CHAMPLIN IS ORIGINALLY PURCHASED AS CRUDE OIL FROM
INDEPENDENT PRODUCERS IN THE FIELD BEFORE TRANSPORTATION BEGINS.  FN19
AS NOTED ABOVE, CHAMPLIN DOES MAKE THESE PURCHASES THROUGH A WHOLLY
OWNED SUBSIDIARY, RATHER THAN IN ITS OWN CORPORATE NAME, BUT THIS FACT
IS UNIMPORTANT.  FN20 

SINCE THERE IS NO SUBSTANTIAL DIFFERENCE BETWEEN THE OPERATIONS OF
CHAMPLIN AND VALVOLINE, AND BETWEEN THE LEGAL ARGUMENTS MADE IN THE TWO
CASES, I CONCLUDE THAT, VERBALISMS ASIDE, THE EFFECT OF TODAY'S
DECISION IS TO UNDERMINE THE VALVOLINE HOLDING.  IN THIS SITUATION I
THINK VALVOLINE SHOULD BE EXPRESSLY OVERRULED.  WHY, IN FAIRNESS,
SHOULD VALVOLINE AND OTHERS SIMILARLY SITUATED BE REQUIRED TO SERVE AS
COMMON CARRIERS FOR HIRE WHILE CHAMPLIN IS LEFT FREE TO CONDUCT ITS
PIPE LINES AS IT CHOOSES? 

                           IV. 

IN THE FIRST CHAMPLIN CASE WE UPHELD FINDINGS OF FACT MADE BY THE
I.C.C., 49 VAL. REP. (I.C.C.)  463, 470, THAT APPELLANT WAS "ENGAGED IN
TRANSPORTATION" AND WAS "A COMMON CARRIER SUBJECT TO THE PROVISIONS OF"
THE ACT.  SINCE THESE QUESTIONS WERE "DISTINCTLY PUT IN ISSUE AND
DIRECTLY DETERMINED," CHAMPLIN MAY NOT DISPUTE THEM IN THIS SECOND
PROCEEDING BETWEEN THE SAME PARTIES UNLESS THERE IS A DEPARTURE FROM
THE PRINCIPLES MOST RECENTLY ANNOUNCED IN UNITED STATES V. MUNSINGWEAR,
340 U.S. 36, 38.  YET THREE CONCURRING JUSTICES TODAY APPEAR TO TAKE
THE POSITION THAT CHAMPLIN IS NOT "ENGAGED IN TRANSPORTATION," AND IS
THEREFORE NOT A COMMON CARRIER SUBJECT TO THE ACT, A POSITION WHICH
THIS COURT EMPHATICALLY REJECTED IN CHAMPLIN I. I ALSO BELIEVE THAT THE
MAJORITY'S POSITION IS UNJUSTIFIED UNDER THE MUNSINGWEAR PRINCIPLE WHEN
THE EFFECT (AS DISTINGUISHED FROM THE LANGUAGE) OF THEIR DECISION IS
CONSIDERED. 

                                  V. 

WHY SHOULD THE COURT INTERPRET THE HEPBURN ACT IN A WAY WHICH
NULLIFIES ITS PURPOSE?  I AM FORCED BY PROCESS OF ELIMINATION TO
CONSIDER WHETHER THE DECISION REFLECTS EITHER A HOSTILITY TO THE POLICY
OF THE ACT OR AN UNARTICULATED BELIEF THAT IT IS UNCONSTITUTIONAL, IF
ENFORCED AS WRITTEN.  NEITHER THIS COURT NOR ANY OTHER SHOULD STRANGLE
AN ACT BECAUSE OF JUDICIAL DISAGREEMENT WITH CONGRESSIONAL POLICY.  IF
DESTRUCTION OF THE ACT RESULTS FROM A FEELING THAT THE CONSTITUTION
FORBIDS CONGRESS TO CONVERT PRIVATE COMPANIES INTO PUBLIC SERVANTS, I
THINK THAT THIS VIEW SHOULD BE ANNOUNCED HERE, AS IT WAS BY A MAJORITY
OF THE COURT BELOW.  PIPE-LINE COMPANIES, ADMINISTRATORS OF THE LAW,
THE BENCH, THE BAR, AND THE CONGRESS ARE ENTITLED TO NO LESS.  OF
COURSE, THE SAME CONSTITUTIONAL CONTENTION WAS EXPRESSLY REJECTED IN
1914 IN THE PIPE LINE CASES, SUPRA:  AS TO COMPANIES WHICH, LIKE
CHAMPLIN, BUILT THEIR LINES AFTER PASSAGE OF THE ACT, JUSTICE HOLMES,
SPEAKING FOR THE COURT, DISMISSED THE CHALLENGE BRUSQUELY WITH LESS
THAN A SENTENCE, STATING MERELY THAT "THERE CAN BE NO DOUBT THAT IT
(THE PIPE LINE PROVISION) IS VALID."  234 U.S. AT 561.  AGAIN, IN 1922,
THE COURT, RELYING ON THE PIPE LINE CASES, SUPRA, REJECTED A SOMEWHAT
SIMILAR CONSTITUTIONAL ARGUMENT AS "FUTILE TO THE POINT ALMOST OF BEING
FRIVOLOUS."  PIERCE OIL CORP. V. PHOENIX RFG.  CO., 259 U.S. 125, 128. 
SURELY A CONTENTION DEEMED "ALMOST FRIVOLOUS" TWENTY-NINE YEARS AGO
SHOULD NOT NOW BE REINVIGORATED BY IMPLICATION. 

              VI. 

NO ONE CAN BE SURE THAT UNDER THE ACT AS NOW REWRITTEN BY THE COURT
THE COMMISSION CAN OR SHOULD SUCCEED IN FORCING ANY OIL COMPANY - EVEN
THOSE NOW COMPLYING WITH THE ACT - TO CARRY GASOLINE OR OIL FOR OTHERS
AS A COMMON CARRIER.  EVEN WITHOUT THE NEWLY ENGRAFTED, COURT-CREATED
HURDLES, THE PIPE-LINE PROVISIONS, FOR ONE REASON OR ANOTHER, HAVE
NEVER BEEN ENFORCED AS EFFECTIVELY AS MIGHT BE DESIRED.  FN21  PERHAPS,
THEREFORE, NO GREAT HARM WILL RESULT FROM THE COURT'S POLITE BUT SURE
FRUSTRATION OF THE HEPBURN ACT'S PURPOSE.  SOME PEOPLE IN AND FAMILIAR
WITH THE OIL INDUSTRY, HOWEVER, BELIEVE THAT THIS ACT SHOULD BE
STRENGTHENED, NOT WEAKENED.  FN22  BE THAT AS IT MAY, I DEEM IT MY DUTY
TO VOTE TO ENFORCE THE ACT AS CONGRESS HAS PASSED IT. 

I WOULD REVERSE. 

FN1  34 STAT. 584.  THE HEPBURN ACT WAS PASSED IN 1906 AS AN
AMENDMENT TO THE INTERSTATE COMMERCE ACT OF 1887, 24 STAT. 379, AND MAY
NOW BE FOUND IN 49 U.S.C. SECS. 1-27.  ALL QUOTATIONS IN THE TEXT
FOLLOW THE ORIGINAL LANGUAGE OF THE HEPBURN ACT, THIS COURT TWICE
HAVING HELD THAT SUBSEQUENT MINOR MODIFICATIONS CHANGED NEITHER THE
PURPOSE NOR THE MEANING OF THE ACT.  VALVOLINE OIL CO. V. UNITED
STATES, 308 U.S. 141, 145-146; CHAMPLIN RFG.  CO. V. UNITED STATES, 329
U.S. 29, 32, NOTE 4. 

FN2  34 STAT. 593, NOW 49 U.S.C. SEC. 20, WHICH PROVIDES THAT THE
I.C.C. MAY REQUIRE REPORTS "FROM CARRIERS" AND "  ...  THE TERM
'CARRIER' MEANS A COMMON CARRIER SUBJECT TO THIS CHAPTER ...  " 

FN3  34 STAT. 586, NOW 49 U.S.C. SEC. 6:  "EVERY COMMON CARRIER
SUBJECT TO THE PROVISIONS OF THIS CHAPTER SHALL FILE  ...  " 

FN4  THE MYSTERY IS NOT LESSENED BY THE COURT'S USE OF THE CONCEPT OF
THE "COMMISSION'S JURISDICTION" IN CONNECTION WITH TARIFFS.  FOR THE
DUTY OF A COMMON CARRIER TO FILE TARIFFS IS NOT DEPENDENT ON ANY
"JURISDICTION" OR ANY ORDER OF THE I.C.C.  SECTION 6 UNEQUIVOCALLY
COMMANDS THAT COMMON CARRIERS SUBJECT TO THE ACT "SHALL FILE."  SEE
NOTE 3, SUPRA. 

FN5  I AM UNABLE TO FIND ANY SUPPORT FOR THIS INTERESTING THEORY IN
THE LANGUAGE OR HISTORY OF ANY PART OF THE ACT, OR FROM ANY OTHER
SOURCE.  BUT SEE SPLAWN, COMMISSIONER, DISSENTING, 274 I.C.C. 416;
COMPARE THE OPINION OF COMMISSIONERS AITCHISON, SPLAWN AND ALLDREDGE IN
THE FIRST CHAMPLIN CASE, 49 VAL. REP. (I.C.C.)  463. 

FN6  SEE PART III, INFRA. 

FN7  THE HOLDING OF THE LAST TWO CITED CASES WAS THAT VALVOLINE AND
CHAMPLIN HAD TO COMPLY WITH 49 U.S.C. SEC. 19A (A) AND (E).  SECTION
19A, LIKE SEC. 6 AND SEC. 20, APPLIES TO "EVERY COMMON CARRIER SUBJECT
TO THE PROVISIONS OF THIS CHAPTER ...  " 

FN8  I DO NOT THINK THAT THE COURT IN CHAMPLIN I RESERVED "AS AN
INDEPENDENT STATUTORY ISSUE ON A PROPER RECORD" THE QUESTION WHETHER
CHAMPLIN COULD BE CONVERTED INTO A PUBLIC CARRIER FOR HIRE; RATHER THE
QUESTION LEFT OPEN WAS WHETHER THE FIFTH AMENDMENT BARRED CONVERTING
CHAMPLIN INTO A PUBLIC CARRIER. 

OF COURSE, THE GOVERNMENT ARGUED IN CHAMPLIN I, AS IT DID IN
VALVOLINE, THAT THE ACT'S PROVISIONS SHOULD BE TREATED AS "SEPARABLE"
IN PASSING ON THE CONSTITUTIONAL QUESTION RAISED.  BUT THE GOVERNMENT
HAS NEVER INTIMATED THAT THE SECTIONS OF THE ACT AS A MATTER OF
STATUTORY CONSTRUCTION WERE "SEPARABLE."  EVEN AN ASSUMPTION THAT THE
EXEMPTING CHAMPLIN FROM SEC. 6 UNLESS IT COULD FIND SUPPORT FOR SUCH AN
EXEMPTION IN SOME STATUTORY LANGUAGE.  THE COURT HAS POINTED TO NO SUCH
EXCLUSIONARY LANGUAGE; I CAN FIND NONE.  MOREOVER, AS AN APPENDIX TO
THIS OPINION, INFRA, P. 315, SHOWS, SENATOR LODGE INTENDED TO MAKE "THE
PIPE LINES AND THE OIL COMPANIES SUBJECT TO ALL THE PROVISIONS OF THE
BILL" UNLESS EXPRESSLY EXCLUDED IN A PARTICULAR PROVISION. 

FN9  34 STAT. 584, NOW 49 U.S.C. SEC. 1:  "(1)  ...  THE PROVISIONS
OF THIS CHAPTER SHALL APPLY TO COMMON CARRIERS ENGAGED IN -  ...
(B)(THE) TRANSPORTATION OF OIL OR OTHER COMMODITY  ...  BY PIPE LINE
...  (3)  ...  (A) THE TERM 'COMMON CARRIER' AS USED IN THIS CHAPTER
SHALL INCLUDE ALL PIPE-LINE COMPANIES; ...  "  SEE NOTE 1, SUPRA. 

FN10  MR. A. G. E. LEVERTON, COMPTROLLER OF THE CHAMPLIN REFINING
COMPANY, TESTIFIED:  "WE HAVE NEVER PRODUCED MORE THAN APPROXIMATELY 45
PERCENT OF THE CRUDE OIL REQUIRED BY OUR REFINERY AND HENCE HAVE ALWAYS
BEEN COMPELLED TO PURCHASE ON THE OPEN MARKET, MORE THAN HALF OF OUR
CRUDE OIL REQUIREMENTS.  ...  "    FN11  THE TOTAL COST OF CHAMPLIN'S
PIPE LINE AND APPURTENANT FACILITIES AS OF DECEMBER 31, 1940, WAS
$3,189,028.66.  CHAMPLIN, ACCORDING TO THE I.C.C., OWNS:  (1)
APPROXIMATELY 149 OIL WELLS ON 53 LEASES IN OKLAHOMA, 45 WELLS ON 13
LEASES IN KANSAS, AND 52 WELLS ON 10 LEASES IN TEXAS; (2) APPROXIMATELY
75,000 ACRES OF UNDEVELOPED LEASES; (3) THE ENID REFINERY WHICH
PROCESSES APPROXIMATELY 4 1/2 MILLION BARRELS OF CRUDE OIL ANNUALLY;
(4) ALL THE STOCK OF THE CIMARRON VALLEY PIPE LINE COMPANY WHICH OWNS
AND OPERATES 450 MILES OF GATHERING LINES IN OKLAHOMA; (5) 723 TANK
CARS; (6) APPROXIMATELY 316 FILLING STATIONS AND 248 GASOLINE AND OIL
BULK PLANTS; (7) THE PRODUCTS PIPE LINE INVOLVED IN THIS CASE; (8)
TRUCKS AND OTHER EQUIPMENT USED TO PROMOTE THE PRODUCING, PURCHASING
AND REFINING OF CRUDE OIL AND THE MARKETING OF THE PRODUCTS THEREOF. 
49 VAL. REP. (I.C.C.)  463-464; 274 I.C.C. 410. 

FN12  THE "PIPE LINE PROVISION" WAS ADDED TO SEC. 1 OF THE HEPBURN
ACT AND IS THE LANGUAGE QUOTED FROM SEC. 1 IN THE TEXT ACCOMPANYING
NOTE 9, SUPRA.  THAT PROVISION IS NOW FOUND IN 49 U.S.C. SEC. 1.  SEE
NOTE 9, SUPRA. 

FN13  IMMEDIATELY BEFORE SENATOR LODGE INTRODUCED HIS AMENDMENT,
PRESIDENT THEODORE ROOSEVELT TRANSMITTED TO THE CONGRESS A REPORT ON
THE TRANSPORTATION OF PETROLEUM.  40 CONG. REC. 6358.  THE REPORT
POINTED OUT THE ADVANTAGE POSSESSED BY STANDARD OIL AS A RESULT OF ITS
CONTROL OF PIPE LINES.  H.R. DOC. NO. 100, 59TH CONG., 1ST SESS. 29, 36
37, 60-62, 398-400.  FOR THE BACKGROUND OF MONOPOLISTIC PRACTICES IN
THE PETROLEUM INDUSTRY AT THAT TIME, SEE GENERALLY BEARD, REGULATION OF
PIPE LINES AS COMMON CARRIERS (1941), 10-27; 2 SHARFMAN, THE INTERSTATE
COMMERCE COMMISSION (1931), 59, 96; WHITESEL, RECENT FEDERAL REGULATION
OF THE PETROLEUM PIPE LINE AS A COMMON CARRIER, 32 CORNELL L.Q. 337,
341.  FOR HISTORY OF STANDARD OIL PRACTICES, SEE STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1; UNITED STATES V. STANDARD OIL CO., 173 F.
177; TARBELL, THE HISTORY OF THE STANDARD OIL COMPANY (1925). 

CONTROL OF PIPE-LINE TRANSPORTATION IS STILL IMPORTANT TODAY.  SEE,
E.G., THE STATEMENT OF ALFRED M. LANDON:  "VERY LITTLE CRUDE OIL IS
MOVED IN ANY OTHER WAY THAN BY PIPE LINE.  THERE IS ONLY A SMALL AMOUNT
MOVED BY INTRASTATE SHIPMENTS.  THE INDEPENDENT PRODUCER THEREFORE
FINDS HIMSELF AT THE MERCY OF HIS COMPETITOR IN THE BUSINESS OF
PRODUCING OIL WHEN THAT COMPETITOR CONTROLS PRACTICALLY ONE HUNDRED PER
CENT OF THE TRANSPORTATION FACILITIES, BECAUSE IT BECOMES SIMPLY A
QUESTION OF BOOKKEEPING AS TO THE END OF THE BUSINESS IN WHICH THIS BIG
MONOPOLY SHOWS ITS PROFIT.  IT CAN PAY LESS FOR THE OIL AND MAKE ITS
PROFIT FROM THE TRANSPORTATION.  THE INDEPENDENT REFINER IS CHOKED ALSO
BY THIS SAME MEANS - THE CONTROL OF THE TRANSPORTATION FACILITIES." 
HEARINGS BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON
H.R. 16695, 71ST CONG., 3D SESS. 59. 

FN14  AS TO THE DANGER INVOLVED IN INTERPRETING THIS ACT AS AIMED AT
A SINGLE CORPORATION, SEE MCFARLAND V. AMERICAN SUGAR CO., 241 U.S.
79. 

FN15  JUSTICE HOLMES WROTE FOR THE COURT:  "THE PROVISIONS OF THE ACT
ARE TO APPLY TO ANY PERSON ENGAGED IN THE TRANSPORTATION OF OIL BY
MEANS OF PIPE LINES.  THE WORDS 'WHO SHALL BE CONSIDERED AND HELD TO BE
COMMON CARRIERS WITHIN THE MEANING AND PURPOSE OF THIS ACT' OBVIOUSLY
ARE NOT INTENDED TO CUT DOWN THE GENERALITY OF THE PREVIOUS DECLARATION
TO THE MEANING THAT ONLY THOSE SHALL BE HELD COMMON CARRIERS WITHIN THE
ACT WHO WERE COMMON CARRIERS IN A TECHNICAL SENSE, BUT AN INJUNCTION
THAT THOSE IN CONTROL OF PIPE LINES AND ENGAGED IN THE TRANSPORTATION
OF OIL SHALL BE DEALT WITH AS SUCH."  234 U.S. AT 559-560. 

BOTH THE INTERSTATE COMMERCE COMMISSION AND THE COMMERCE COURT HAD
CONSTRUED THE STATUTE AS REQUIRING ALL INTERSTATE, OIL-CARRYING PIPE
LINES TO SERVE AS COMMON CARRIERS FOR HIRE.  24 I.C.C. 1(1912); 204 F.
798(1913).  IT IS TRUE THAT THE COMMERCE COURT HELD THE HEPBURN ACT
UNCONSTITUTIONAL AS A TAKING OF PROPERTY WITHOUT DUE PROCESS OF LAW,
ONE JUDGE DISSENTING.  BUT ON APPEAL, PIPE LINE CASES, 234 U.S. 548,
THIS COURT REVERSED, HOLDING THE ACT CONSTITUTIONAL:  AS TO THOSE PIPE
LINES IN EXISTENCE BEFORE PASSAGE OF THE ACT, ONE GROUND ASSIGNED BY
THE COURT WAS THAT THEY WERE ALREADY COMMON CARRIERS IN SUBSTANCE.  AS
TO PIPE LINES BUILT SUBSEQUENT TO THE PASSAGE OF THE ACT, SEE PART V,
INFRA. 

FN16  329 U.S. AT 34.  IN THE PIPE LINE CASES, SUPRA, THE UNCLE SAM
OIL COMPANY, WHICH OPERATED ITS BUSINESS ON THE BORDER BETWEEN OKLAHOMA
AND KANSAS, WAS HELD NOT TO BE SO "ENGAGED" BECAUSE IT WAS "SIMPLY
DRAWING OIL FROM ITS OWN WELLS ACROSS A STATE LINE TO ITS OWN REFINERY
FOR ITS OWN USE, AND THAT (WAS) ALL  ...  "  234 U.S. AT 562.  THERE IS
NO UNCLE SAM PROBLEM IN THIS CASE SINCE A MAJORITY OF THE COURT TODAY
REAFFIRMS THE FORMER HOLDING THAT CHAMPLIN IS "ENGAGED IN
TRANSPORTATION." 

FN17  BUT CF. UNITED STATES V. ELGIN, J. & E.R. CO., 298 U.S. 492;
UNITED STATES V. SOUTH BUFFALO R. CO., 333 U.S. 771. 

FN18  AS TO THE FACTUAL SIMILARITY BETWEEN CHAMPLIN'S AND VALVOLINE'S
DOMINATION (OR LACK OF DOMINATION) IN THE FIELDS SERVED, COMPARE 274
I.C.C. 413("(APPARENTLY), COMMON-CARRIER PIPE-LINE TRANSPORTATION IS
AVAILABLE TO ANY SMALL REFINER IN (CHAMPLIN'S) AREA DESIRING SUCH
TRANSPORTATION") WITH 47 VAL. REP. (I.C.C.)  534, 535("(AT) LEAST ONE
COMMON-CARRIER PIPE-LINE COMPANY SERVES EACH OF THE FIELDS REACHED BY
THE VALVOLINE"). 

FN19  SEE NOTE 10, SUPRA.  WHETHER CHAMPLIN BUYS FROM MORE OR LESS
THAN 3,800 INDEPENDENT PRODUCERS DOES NOT APPEAR IN THE RECORD.  BUT
THE EXACT NUMBER CANNOT HAVE LEGAL SIGNIFICANCE HERE.  SEE VALVOLINE
OIL CO. V. UNITED STATES, 308 U.S. 141, 147. 

FN20  EVEN IF CHAMPLIN PRODUCED ALL THE OIL IT TRANSPORTED, THE ACT
WOULD REQUIRE ITS REGULATION BECAUSE OF THE EFFECT OF EXCLUSIVE PIPE
LINE OWNERSHIP ON CHAMPLIN'S PRICE POLICY AT THE OTHER END OF THE PIPE
LINE.  FOR ONE MAJOR PURPOSE OF THE ACT WAS TO INSURE COMPETITION IN
THE PETROLEUM INDUSTRY BY REGULATING PIPE-LINE TRANSPORTATION SO THAT
THE INDEPENDENT REFINER, THE JOBBER AND THE CONSUMER WOULD NOT BE
CHARGED EXORBITANT PRICES BY THE INTEGRATED COMPANIES.  SEE 40 CONG.
REC. 6365, 6366; NOTE, PUBLIC CONTROL OF PETROLEUM PIPE LINES, 51 YALE
L.J. 1338, 1347-1348.  IT IS NOTEWORTHY THAT THE PRICE OF CHAMPLIN'S
GASOLINE WAS 1/8[ PER GALLON HIGHER AT SUPERIOR, KANSAS (A POINT NOT
SERVED BY ANY OTHER COMMON CARRIER PIPE LINE), THAN IT WAS AT ROCK
RAPIDS, IOWA (A POINT SERVED BY A COMMON CARRIER LINE, HENCE IN A
COMPETITIVE MARKET); ROCK RAPIDS IS 260 MILES FURTHER FROM THE ENID
REFINERY THAN IS SUPERIOR.  THE EFFECT OF SUCH CONTROL WAS POINTED OUT
LONG AGO BY THIS COURT IN STANDARD OIL CO. V. UNITED STATES, 221 U.S.
1, 77, AS FOLLOWS: "AS SUBSTANTIAL POWER OVER THE CRUDE PRODUCT WAS THE
INEVITABLE RESULT OF THE ABSOLUTE CONTROL WHICH EXISTED OVER THE
REFINED PRODUCT, THE MONOPOLIZATION OF THE ONE CARRIED WITH IT THE
POWER TO CONTROL THE OTHER  ...  " 

FN21  "THE MAJOR OIL COMPANIES HAVE THEIR GREATEST CONTROL IN THE
TRANSPORTATION OF CRUDE OIL.  ...  THE CONTROL OF TRANSPORTATION TODAY
BY THE MAJORS APPEARS IN MANY RESPECTS TO BE JUST AS COMPLETE AND
EFFECTIVE AS WAS THE CASE OF THE STANDARD OIL TRUST."  REPORT OF THE
TEMPORARY NATIONAL ECONOMIC COMMITTEE, 76TH CONG., 3D SESS., MONOGRAPH
39(1941), P. 28.  THIS REPORT CONTAINS AN EXCELLENT DISCUSSION OF
TRANSPORTATION PROBLEMS IN THE PETROLEUM INDUSTRY.  ID. AT 19-28.  AND
SEE KEMNITZER, REBIRTH OF MONOPOLY (1938), 78-95; WHITESEL, RECENT
FEDERAL REGULATION OF THE PETROLEUM PIPE LINE AS A COMMON CARRIER, 32
CORNELL L.Q. 337, 355-369. 

FN22  SEE, E.G., THE STATEMENT OF ALFRED M. LANDON:  "THE CRUSHING
STRENGTH OF THE OLD STANDARD OIL CO. LAY IN THE FACT THAT, OF ITS
THIRTY-ODD COMPANIES, SOME WERE PRODUCERS ONLY, SOME WERE TRANSPORTERS
ONLY, SOME WERE REFINERS ONLY, AND SOME WERE MARKETERS ONLY. 

"BUT THE MASTER MINDS THAT CONTROLLED THE OLD STANDARD OIL CO.
COORDINATED THESE THIRTY AND ODD COMPANIES INTO ONE VAST COMPANY - A
GREAT SINGLE, INTEGRATED, COORDINATED 'UNIT' THAT, AS A CORPORATE
ENTITY, DID ALL OF THESE THINGS (PRODUCING, TRANSPORTING, REFINING, AND
MARKETING) - AND ALL OF THEM WITHIN THE CORPORATE INCLUSIVENESS OF
'ONE' COMPANY. 

"THEREIN RESTED THE TERRIFIC, THE OVERPOWERING STRENGTH OF THE OLD
STANDARD OIL CO. 

"TO-DAY, FROM A CORPORATE STANDPOINT, WE HAVE THE 'EQUIVALENT,' MANY
TIMES OVER, OF THE OLD STANDARD OIL CO. ... 

     .         .         .         .         . 

"IT IS INEVITABLE THAT THE ONLY ESCAPE FROM MONOPOLISTIC DOMINATION
IN THE OIL INDUSTRY - AND IT IS BEING RAPIDLY ACCOMPLISHED THROUGH
MERGERS AND INTEGRATION - IS TO CLEARLY, DEFINITELY, AND EFFECTIVELY
SEGREGATE, FIRST, THE ENTIRE PIPE LINE TRANSPORTATION SYSTEM OF THE OIL
INDUSTRY FROM THE REST OF THE INDUSTRY.  THE FIRST EFFECT OF THIS
SEGREGATION WOULD BE THE SUBSTITUTION OF COMPETITION IN THE
TRANSPORTATION OF CRUDE OIL FOR THE PRESENT PRACTICE WHICH, IN EACH
INDIVIDUAL CASE, IS, TO ALL PRACTICAL PURPOSES, A MONOPOLY."  HEARINGS
BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R.
16695, 71ST CONG., 3D SESS. 60, 61.  FOR VIEWS AGAINST THE PROPOSED
STRENGTHENING OF THE HEPBURN ACT, SEE HOUSE REPORT ON PIPE LINES, 72D
CONG., 2D SESS. (1933), EXPECIALLY SPECIAL COUNSEL SPLAWN'S
CONCLUSIONS, P. LXXVIII.  SEE ALSO KEMNITZER, REBIRTH OF MONOPOLY
(1938), 87-90; F.R. BLACK, OIL PIPE LINE DIVORCEMENT BY LITIGATION AND
LEGISLATION, 25 CORNELL L.Q. 510. 

              APPENDIX TO OPINION OF MR. JUSTICE BLACK. 

ON MAY 4, 1906, PRESIDENT THEODORE ROOSEVELT TRANSMITTED TO THE
CONGRESS A REPORT DESCRIBING AND CONDEMNING VARIOUS MONOPOLISTIC
PRACTICES IN THE PETROLEUM INDUSTRY.  40 CONG. REC. 6358.  SENATOR
LODGE OF MASSACHUSETTS ON THE SAME DAY INTRODUCED AN AMENDMENT TO SEC.
1 OF THE HEPBURN ACT MAKING PIPE-LINE COMPANIES ENGAGED IN THE
INTERSTATE TRANSPORTATION OF OIL AND OTHER COMMODITIES COMMON
CARRIERS: 

"(THAT THE PROVISIONS OF THIS ACT SHALL APPLY TO)  ANY CORPORATION OR
ANY PERSON OR PERSONS ENGAGED IN THE TRANSPORTATION OF OIL OR OTHER
COMMODITY, EXCEPT NATURAL GAS OR WATER FOR MUNICIPAL PURPOSES, BY MEANS
OF PIPE LINES, OR PARTLY BY PIPE LINES AND PARTLY BY RAILROAD, OR
PARTLY BY PIPE LINES AND PARTLY BY WATER, WHO SHALL BE CONSIDERED AND
HELD TO BE COMMON CARRIERS WITHIN THE MEANING AND PURPOSE OF THIS ACT
...."  ID. AT 6361. 

SENATOR FORAKER OF OHIO IMMEDIATELY OBJECTED TO THE BROAD SCOPE OF
THE LODGE PROPOSAL:  "I DO NOT WANT TO MAKE ANY OPPOSITION TO THE
SENATOR'S AMENDMENT, BUT IT OCCURS TO ME THAT THE AMENDMENT OUGHT TO BE
FURTHER AMENDED, SO AS TO PROVIDE THAT IT SHALL APPLY ONLY TO PIPE
LINES OPERATED FOR THE PUBLIC.  I DO NOT UNDERSTAND HOW YOU WOULD
COMPEL A MAN WHO HAS A PRIVATE PIPE LINE OF HIS OWN TO BECOME A COMMON
CARRIER....  I THINK SUCH A LIMITATION OUGHT TO BE PUT IN THE SENATOR'S
AMENDMENT BY AN AMENDMENT TO THE AMENDMENT THAT IT SHALL APPLY TO ALL
PIPE LINES THAT ARE CARRYING FOR THE PUBLIC, AND NOT TO PRIVATE PIPE
LINES THAT AN INDIVIDUAL OR A SINGLE CORPORATION MAY HAVE LAID DOWN AND
PUT INTO OPERATION FOR ITS OWN BENEFIT."  ID. AT 6361. 

SENATOR NELSON IN REPLY STATED THAT FORAKER'S SUGGESTION WOULD
"PRACTICALLY NULLIFY THE PROVISION, BECAUSE EVERY ONE OF THESE PIPE
LINES CAN SAY 'WE REFUSE TO DO BUSINESS FOR THE PUBLIC.'  PRACTICALLY
THE (LODGE) AMENDMENT WOULD BE OF NO USE AT ALL."  ID. AT 6365.  AND
SENATOR LODGE ADDED:  "THE AMENDMENT SUGGESTED BY (SENATOR FORAKER) TO
THE EFFECT THAT NO PIPE LINE, UNLESS IT CARRIES FOR THE PUBLIC, SHALL
COME UNDER THIS RULE, WILL, AS (SENATOR NELSON) SAYS, ABSOLUTELY
DESTROY THE VALUE OF MY AMENDMENT."  ID. AT 6365. 

DURING THE COURSE OF THE DEBATE AN ATTEMPT WAS MADE TO MAKE THE LODGE
AMENDMENT APPLICABLE ONLY TO CARRIERS "FOR THE PUBLIC" OR TO
"TRANSPORTATION FOR HIRE" OR "FOR COMPENSATION," BUT IT WAS
UNSUCCESSFUL.  ID. AT 7000.  SENATOR LODGE AGAIN STATED THAT SUCH AN
AMENDMENT WOULD "ABSOLUTELY DESTROY" HIS PROPOSAL "SO FAR AS ITS
EFFECTIVENESS IS CONCERNED."  ID. AT 7000. 

THERE CAN BE NO DOUBT BUT THAT THE PROPONENTS KNEW AND STATED THEIR
PURPOSE.  SENATOR LODGE DECLARED: 

"THE PURPOSE OF THIS AMENDMENT IS TO BRING THE TRANSPORTATION OF OIL
AND OTHER COMMODITIES WITHIN THE INTERSTATE-COMMERCE LAW.  OIL IS ONE
OF THE GREATEST ARTICLES OF INTERSTATE COMMERCE CARRIED IN THIS
COUNTRY, AND IT IS NOW ABSOLUTELY OUTSIDE AND BEYOND ANY GOVERNMENT
REGULATION WHATSOEVER."  ID. AT 6365.  LATER HE ADDED:  "ALL PIPE LINES
OWNED BY ANY COMPANY WITHIN THE UNITED STATES  ...  ARE MADE COMMON
CARRIERS."  ID. AT 7001.  SENATOR CLAY, SPEAKING ABOUT THE PIPE-LINE
PROVISION, OBSERVED:  "THIS BILL MAKES EVERY CORPORATION ENGAGED IN THE
TRANSMISSION OF OIL A COMMON CARRIER.  EVERY PRIVATE CORPORATION
TRANSMITTING ITS OWN OIL  ...  IS MADE A COMMON CARRIER BY THE LODGE
AMENDMENT  ...."  ID. AT 7009.  AND SENATOR CULBERSON SAID:  "NOTHING
IS LEFT TO THE COURTS FOR CONSTRUCTION, BUT THE STATUTE ITSELF DECLARES
THAT ANY CORPORATION, OR ANY PERSON OR PERSONS ENGAGED IN TRANSPORTING
OIL BY PIPE LINES - OF COURSE, AS INTERSTATE COMMERCE - ARE COMMON
CARRIERS, AND ARE DECLARED TO BE SUCH IN THIS ACT OF CONGRESS, SUBJECT
TO THE AUTHORITY OF THIS ACT  ...."  ID. AT 7005.  SENATOR BAILEY, IN
THE FINAL DEBATE ON THE MEASURE, DESCRIBED THE LODGE PROPOSAL AS THE
"'PIPE-LINE AMENDMENT,' BY WHICH WE MEAN THE AMENDMENT THAT MAKES THE
PIPE LINES COMMON CARRIERS."  ID. AT 9647. 

THE "COMMODITIES CLAUSE" OF THE HEPBURN ACT WAS DESIGNED TO PREVENT
RAILROADS FROM OWNING BUSINESSES WHOSE SHIPMENTS THEY CARRIED.  WHEN
THAT CLAUSE WAS FIRST CONSIDERED IN THE SENATE, IT APPLIED TO "COMMON
CARRIERS SUBJECT TO" THE ACT.  SOME SENATORS REALIZED THAT THE
"COMMODITIES CLAUSE" - READ TOGETHER WITH THE LODGE AMENDMENT MAKING
EVERY PIPE-LINE COMPANY SUBJECT TO THE ACT - WOULD FORCE A DIVORCEMENT
OF PIPE LINES FROM REFINERIES.  TO AVOID THIS, THEY AGAIN SUGGESTED
THAT THE LODGE PROPOSAL BE AMENDED SO AS TO APPLY ONLY TO PIPE LINES
OPERATING FOR THE PUBLIC.  SENATOR LODGE SAID:  "WHAT I WANT TO SUGGEST
TO THE SENATOR IS THAT THIS (ORIGINAL LODGE) AMENDMENT MAKES THE PIPE
LINES AND THE OIL COMPANIES SUBJECT TO ALL THE PROVISIONS OF THE BILL. 
IF THE SENATOR THINKS THERE IS AN INJUSTICE, THE PLACE TO REMEDY IT IS
ON PAGE 5, AT THAT AMENDMENT (THE COMMODITIES CLAUSE), AND NOT AT THIS
ONE (THE LODGE AMENDMENT)."  ID. AT 7009.  ACCORDINGLY, THE
"COMMODITIES CLAUSE" FINALLY PASSED BY CONGRESS REFERRED SPECIFICALLY
TO RAILROADS.  34 STAT. 585. 
..END :














UNITED STATES V. WHEELOCK BROS., 341 U.S. 319 


ARGUED JANUARY 3, 1951.  - DECIDED MAY 7, 1951.  - 115 CT. CL. 733, 88
F.SUPP.  278, VACATED AND REMANDED. 


A PRIVATE MOTOR CARRIER SUED IN THE COURT OF CLAIMS TO RECOVER JUST
COMPENSATION FOR AN ALLEGED TEMPORARY TAKING OF ITS PROPERTY AND
BUSINESS BY THE UNITED STATES UNDER EXECUTIVE ORDER NO. 9462.  WHILE
THE CASE WAS PENDING, THE MOTOR CARRIER CLAIMS COMMISSION ACT WAS
ENACTED; AND THE MOTOR CARRIER TIMELY FILED ITS CLAIM WITH THE
COMMISSION BEFORE THE COURT OF CLAIMS ENTERED JUDGMENT.  HELD:  THIS
DEPRIVED THE COURT OF CLAIMS OF JURISDICTION TO ENTER JUDGMENT IN THE
CASE.  PP. 319-320. 

UNITED STATES V. WHEELOCK BROS., INC. 

NO. 169.  CERTIORARI TO THE COURT OF CLAIMS.* 

*TOGETHER WITH NO. 177, WHEELOCK BROS., INC. V. UNITED STATES, ALSO
ON CERTIORARI TO THE SAME COURT. 

PER CURIAM. 

WHEELOCK BROS., INC., A PRIVATE MOTOR CARRIER, SUED IN THE COURT OF
CLAIMS TO RECOVER JUST COMPENSATION FOR AN ALLEGED TEMPORARY TAKING OF
ITS PROPERTIES AND BUSINESS BY THE UNITED STATES PURSUANT TO EXECUTIVE
ORDER NO. 9462.  9 FED. REG. 10071(1944).  THE COURT OF CLAIMS ENTERED
JUDGMENT AWARDING WHEELOCK BROS., INC., JUST COMPENSATION IN AN AMOUNT
LESS THAN THAT CLAIMED.  115 CT. CL. 733, 88 F.SUPP.  278(1950).  WE
GRANTED CERTIORARI ON THE PETITIONS OF BOTH PARTIES.  340 U.S.
808(1950). 

WHILE THE ACTION WAS PENDING IN THE COURT OF CLAIMS, CONGRESS PASSED
THE MOTOR CARRIER CLAIMS COMMISSION ACT* , PROVIDING THAT THAT
COMMISSION "SHALL HEAR AND DETERMINE, ACCORDING TO LAW, EXISTING CLAIMS
AGAINST THE UNITED STATES ARISING OUT OF THE TAKING BY THE UNITED
STATES OF POSSESSION OR CONTROL OF ANY OF THE MOTOR-CARRIER
TRANSPORTATION SYSTEMS DESCRIBED IN EXECUTIVE ORDER NUMBERED 9462  ...
"  SECTION 2.  WITHIN THE TIME PROVIDED IN THE ACT AND BEFORE ENTRY OF
JUDGMENT IN THE COURT OF CLAIMS, WHEELOCK BROS., INC., FILED ITS CLAIM
WITH THE COMMISSION. 

*62 STAT. 1222(1948), AS AMENDED, 62 STAT. 1289, 1290(1948), 63 STAT.
80(1949). 

AT THE THRESHOLD, WE ARE MET WITH THE QUESTION WHETHER THE COURT OF
CLAIMS HAD JURISDICTION TO ENTER JUDGMENT IN THIS CASE.  CONGRESS, IN
SEC. 6 OF THE MOTOR CARRIER CLAIMS COMMISSION ACT, EXPRESSLY PROVIDED: 

"THE JURISDICTION OF THE COMMISSION OVER CLAIMS PRESENTED TO IT AS
PROVIDED IN SECTION 2 OF THIS ACT SHALL BE EXCLUSIVE; BUT NOTHING IN
THIS ACT SHALL PREVENT ANY PERSON WHO DOES NOT ELECT TO PRESENT HIS
CLAIM TO THE COMMISSION FROM PURSUING ANY OTHER REMEDY AVAILABLE TO
HIM." 

WHEELOCK BROS., INC., BY FILING ITS CLAIM WITH THE COMMISSION, DID
ELECT TO PRESENT IT TO THAT TRIBUNAL.  THE COMMISSION'S JURISDICTION
OVER THE CLAIM BEING "EXCLUSIVE," THE COURT OF CLAIMS WAS WITHOUT
JURISDICTION TO ENTER JUDGMENT IN THIS CASE.  FOR THIS REASON, THE
JUDGMENT BELOW IS VACATED AND THE CASE IS REMANDED TO THE COURT OF
CLAIMS WITH INSTRUCTIONS TO DISMISS THE CLAIM IN THAT COURT.  IT IS SO
ORDERED. 
..END :











EWING V. GARDNER, 341 U.S. 321 


NO. 621.  DECIDED MAY 7, 1951.  - 185 F.2D 781, REVERSED IN PART. 


UNDER 28 U.S.C. SEC. 2412(A), COSTS MAY NOT BE ASSESSED AGAINST THE
FEDERAL SECURITY ADMINISTRATOR IN A SUIT BROUGHT AGAINST HIM IN HIS
OFFICIAL CAPACITY, WHEN THERE IS NO EXPRESS STATUTORY AUTHORITY FOR THE
ALLOWANCE OF SUCH COSTS. 

EWING, FEDERAL SECURITY ADMINISTRATOR, V. GARDNER, EXECUTOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT. 

IN A SUIT AGAINST THE FEDERAL SECURITY ADMINISTRATOR IN HIS OFFICIAL
CAPACITY, THE DISTRICT COURT AWARDED A JUDGMENT AND ASSESSED COSTS
AGAINST THE ADMINISTRATOR.  88 F.SUPP.  315.  THE COURT OF APPEALS
AFFIRMED.  185 F.2D 781.  CERTIORARI GRANTED AND JUDGMENT REVERSED,
INSOFAR AS IT RELATES TO THE TAXATION OF COSTS AGAINST PETITIONER. 

PER CURIAM. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED.  THE SOLE QUESTION
PRESENTED BY THE PETITION IS THE VALIDITY OF THE AFFIRMANCE BY THE
COURT OF APPEALS OF THE JUDGMENT RENDERED AGAINST THE PETITIONER FOR
COSTS BY THE DISTRICT COURT.  THERE BEING NO EXPRESS STATUTORY
AUTHORITY FOR THE ALLOWANCE OF COSTS TO THE RESPONDENT, SUCH AN AWARD
OF COSTS IS PRECLUDED BY 28 U.S.C. SEC. 2412(A).  THE JUDGMENT OF THE
COURT OF APPEALS, INSOFAR AS IT RELATES TO THE TAXATION OF COSTS
AGAINST THE PETITIONER, IS THEREFORE REVERSED. 
..END :





















UNITED STATES V. PEWEE COAL CO., 341 U.S. 114 


NO. 168.  ARGUED JANUARY 2-3, 1951.  - DECIDED APRIL 30, 1951.  - 115
CT. CL. 626, 88 F.SUPP.  426, AFFIRMED. 


RESPONDENT IS A COAL MINE OPERATOR WHOSE PROPERTY WAS SEIZED AND
OPERATED BY THE UNITED STATES DURING A TEMPORARY PERIOD IN 1943 TO
AVERT A NATIONWIDE STRIKE OF MINERS.  RESPONDENT SUED IN THE COURT OF
CLAIMS TO RECOVER UNDER THE FIFTH AMENDMENT FOR THE TOTAL OPERATING
LOSSES SUSTAINED DURING THAT PERIOD.  THE COURT OF CLAIMS AWARDED
RESPONDENT JUDGMENT FOR ONLY THAT PORTION OF THE OPERATING LOSS (VIZ.,
INCREASED WAGE PAYMENTS MADE IN ACCORDANCE WITH A WAR LABOR BOARD
ORDER) WHICH THE COURT FOUND WAS ATTRIBUTABLE TO GOVERNMENT OPERATION
OF THE MINE.  RESPONDENT DID NOT SEEK REVIEW HERE; CERTIORARI WAS
GRANTED ON THE PETITION OF THE GOVERNMENT.  HELD: 

1.  UNDER THE CIRCUMSTANCES, THERE WAS A "TAKING" OF RESPONDENT'S
PROPERTY, WHICH ENTITLED RESPONDENT TO RECOVER COMPENSATION UNDER THE
FIFTH AMENDMENT.  PP. 115-117. 

2.  THE JUDGMENT OF THE COURT OF CLAIMS AWARDING COMPENSATION FOR
THAT PORTION OF THE OPERATING LOSS WHICH IT FOUND ATTRIBUTABLE TO
GOVERNMENT OPERATION IS AFFIRMED.  PP. 117-119. 

UNITED STATES V. PEWEE COAL CO., INC. 

CERTIORARI TO THE COURT OF CLAIMS. 

IN A SUIT BY RESPONDENT TO RECOVER COMPENSATION FOR AN ALLEGED TAKING
OF ITS PROPERTY, THE COURT OF CLAIMS AWARDED JUDGMENT FOR RESPONDENT,
BUT IN LESS THAN THE AMOUNT CLAIMED.  115 CT. CL. 626, 88 F.SUPP. 
426.  ON THE PETITION OF THE GOVERNMENT, THIS COURT GRANTED
CERTIORARI.  340 U.S. 808.  AFFIRMED, P. 119. 

MR. JUSTICE BLACK DELIVERED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, AND MR. JUSTICE
JACKSON JOINED. 

RESPONDENT, PEWEE COAL CO., INC., IS A COAL MINE OPERATOR WHOSE
PROPERTY WAS ALLEGEDLY POSSESSED AND OPERATED BY THE UNITED STATES FROM
MAY 1 TO OCTOBER 12, 1943, TO AVERT A NATION-WIDE STRIKE OF MINERS. 
PEWEE BROUGHT THIS ACTION IN THE COURT OF CLAIMS TO RECOVER UNDER THE
FIFTH AMENDMENT FN1  FOR THE TOTAL OPERATING LOSSES SUSTAINED DURING
THAT PERIOD.  AFTER CONSIDERING THE EVIDENCE, THE COURT HELD THAT THERE
HAD BEEN A "TAKING" ENTITLING PEWEE TO COMPENSATION.  IT FOUND THE
TOTAL OPERATING LOSS TO BE $36,128.96, BUT RENDERED JUDGMENT FOR ONLY
$2,241.26, THIS AMOUNT BEING THE PORTION OF THE OPERATING LOSS WHICH
THE COURT FOUND ATTRIBUTABLE TO GOVERNMENT OPERATION OF THE MINE.  115
CT. CL. 626, 88 F.SUPP.  426.  PEWEE DID NOT SEEK REVIEW HERE.  WE
GRANTED THE GOVERNMENT'S PETITION FOR CERTIORARI  FN2  IN WHICH TWO
QUESTIONS ARE PRESENTED:  (1) WAS THERE SUCH A TAKING OF PEWEE'S
PROPERTY AS TO JUSTIFY COMPENSATION UNDER THE FIFTH AMENDMENT?  (2) IF
THERE WAS, DOES THE RECORD SUPPORT THE AWARD OF $2,241.26? 

FIRST.  WE AGREE WITH THE COURT OF CLAIMS THAT THERE WAS A "TAKING"
REQUIRING THE GOVERNMENT TO PAY PEWEE.  THE FACTS UPON WHICH THIS
CONCLUSION RESTS ARE SET OUT IN THE FINDINGS AND OPINION BELOW AND NEED
NOT BE REPEATED IN DETAIL HERE.  SEE 115 CT. CL. 626.  THE FOLLOWING
ARE SUFFICIENT TO SHOW THE GENERAL PICTURE:  ON MAY 1, 1943, THE
PRESIDENT ISSUED EXECUTIVE ORDER 9340, 8 FED. REG. 5695, DIRECTING THE
SECRETARY OF INTERIOR "  ...  TO TAKE IMMEDIATE POSSESSION, SO FAR AS
MAY BE NECESSARY OR DESIRABLE, OF ANY AND ALL MINES PRODUCING COAL IN
WHICH A STRIKE OR STOPPAGE HAS OCCURRED OR IS THREATENED,  ...  AND TO
OPERATE OR ARRANGE FOR THE OPERATION OF SUCH MINES  ...  "  ON THE SAME
DAY, THE SECRETARY ISSUED AN "ORDER FOR TAKING POSSESSION" OF MOST OF
THE NATION'S MINES, INCLUDING PEWEE'S.  8 FED. REG. 5767.  TO CONVINCE
THE OPERATORS, MINERS AND PUBLIC THAT THE UNITED STATES WAS TAKING
POSSESSION FOR THE BONA FIDE PURPOSE OF OPERATING THE MINES, THE
GOVERNMENT FORMALLY AND CEREMONIOUSLY PROCLAIMED THAT SUCH WAS ITS
INTENTION.  IT REQUIRED MINE OFFICIALS TO AGREE TO CONDUCT OPERATIONS
AS AGENTS FOR THE GOVERNMENT; REQUIRED THE AMERICAN FLAG TO BE FLOWN AT
EVERY MINE; REQUIRED PLACARDS READING "UNITED STATES PROPERTY."  TO BE
POSTED ON THE PREMISES; AND APPEALED TO THE MINERS TO DIG COAL FOR THE
UNITED STATES AS A PUBLIC DUTY.  UNDER THESE CIRCUMSTANCES AND IN VIEW
OF THE OTHER FACTS WHICH WERE FOUND, IT SHOULD NOT AND WILL NOT BE
ASSUMED THAT THE SEIZURE OF THE MINES WAS A MERE SHAM OR PRETENSE TO
ACCOMPLISH SOME UNEXPRESSED GOVERNMENTAL PURPOSE INSTEAD OF BEING THE
PROCLAIMED ACTUAL TAKING OF POSSESSION AND CONTROL.  IN UNITED STATES
V. UNITED MINE WORKERS, 330 U.S. 258, THERE HAD BEEN A GOVERNMENT
SEIZURE OF THE MINES UNDER PRESIDENTIAL AND SECRETARIAL ORDERS, WHICH,
INSOFAR AS HERE MATERIAL, WERE SUBSTANTIALLY THE SAME AS THOSE ISSUED
IN THE PRESENT CASE.  WE REJECTED THE CONTENTION OF THE MINE WORKERS
THAT "THE GOVERNMENT'S ROLE IN ADMINISTERING THE BITUMINOUS COAL MINES
(WAS) FOR THE MOST PART FICTIONAL AND FOR THE REMAINDER NOMINAL ONLY." 
FN3  WE TREATED THAT SEIZURE AS MAKING THE MINES GOVERNMENTAL
FACILITIES "IN AS COMPLETE A SENSE AS IF THE GOVERNMENT HELD FULL TITLE
AND OWNERSHIP."  ID., AT 284-285.  IT FOLLOWS ALMOST AS A MATTER OF
COURSE FROM OUR HOLDING IN UNITED MINE WORKERS THAT THE GOVERNMENT HERE
"TOOK" PEWEE'S PROPERTY AND BECAME ENGAGED IN THE MINING BUSINESS. 
FN4 

SECOND.  HAVING TAKEN PEWEE'S PROPERTY, THE UNITED STATES BECAME
LIABLE UNDER THE CONSTITUTION TO PAY JUST COMPENSATION.  ORDINARILY,
FAIR COMPENSATION FOR A TEMPORARY POSSESSION OF A BUSINESS ENTERPRISE
IS THE REASONABLE VALUE OF THE PROPERTY'S USE.  SEE KIMBALL LAUNDRY CO.
V. UNITED STATES, 338 U.S. 1; UNITED STATES V. GENERAL MOTORS CORP.,
323 U.S. 373.  BUT IN THE PRESENT CASE, THERE IS NO NEED TO CONSIDER
THE DIFFICULT PROBLEMS INHERENT IN FIXING THE VALUE OF THE USE OF A
GOING CONCERN BECAUSE PEWEE NEITHER CLAIMED SUCH COMPENSATION NOR
PROVED THE AMOUNT.  IT PROCEEDED ON THE GROUND THAT THE FIFTH AMENDMENT
REQUIRES THE UNITED STATES TO BEAR OPERATING LOSSES INCURRED DURING THE
PERIOD THE GOVERNMENT OPERATES PRIVATE PROPERTY IN THE NAME OF THE
PUBLIC WITHOUT THE OWNER'S CONSENT.  WE BELIEVE THAT THIS CONTENTION
EXPRESSES A CORRECT GENERAL PRINCIPLE WHICH UNDER THE CIRCUMSTANCES OF
THIS CASE SUPPORTS THE JUDGMENT FOR $2,241.26. 

LIKE ANY PRIVATE PERSON OR CORPORATION, THE UNITED STATES NORMALLY IS
ENTITLED TO THE PROFITS FROM, AND MUST BEAR THE LOSSES OF, BUSINESS
OPERATIONS WHICH IT CONDUCTS.  WHEN A PRIVATE BUSINESS IS POSSESSED AND
OPERATED FOR PUBLIC USE, NO REASON APPEARS TO JUSTIFY IMPOSITION OF
LOSSES SUSTAINED ON THE PERSON FROM WHOM THE PROPERTY WAS SEIZED.  THIS
IS CONCEPTUALLY DISTINCT FROM THE GOVERNMENT'S OBLIGATION TO PAY FAIR
COMPENSATION FOR PROPERTY TAKEN, ALTHOUGH IN CASES RAISING THE ISSUE,
THE GOVERNMENT'S PROFIT AND LOSS EXPERIENCE MAY WELL BE ONE FACTOR
INVOLVED IN COMPUTING REASONABLE COMPENSATION FOR A TEMPORARY TAKING. 
OF COURSE, THERE MIGHT BE AN EXPRESS OR IMPLIED AGREEMENT BETWEEN THE
PARTIES THAT THE GOVERNMENT SHOULD NOT RECEIVE OPERATING PROFITS NOR
BEAR THE LOSSES, IN WHICH EVENT THE GENERAL PRINCIPLE WOULD BE
INAPPLICABLE.  BUT THE POSSIBILITY THAT SUCH AN AGREEMENT EXISTED IN
THE PRESENT CASE MAY BE DISPOSED OF QUICKLY.  PEWEE'S FAILURE TO SEEK
REVIEW HERE MAKES IT UNNECESSARY TO CONSIDER WHETHER THE COMPANY
CONSENTED TO BEAR THE DISALLOWED AND MAJOR PORTION OF THE LOSSES
SUSTAINED DURING THE PERIOD OF GOVERNMENTAL CONTROL.  AND THERE IS NO
INDICATION THAT PEWEE EXPRESSLY OR IMPLIEDLY AGREED TO ASSUME THE LOSS
OF $2,241.26 WHICH THE COURT FOUND MAINLY ATTRIBUTABLE TO INCREASED
WAGE PAYMENTS MADE TO COMPLY WITH A WAR LABOR BOARD DECISION. 

WHERE LOSSES RESULTING FROM OPERATION OF PROPERTY TAKEN MUST BE BORNE
BY THE GOVERNMENT, IT MAKES NO DIFFERENCE THAT THE LOSSES ARE CAUSED IN
WHOLE OR IN PART BY COMPLIANCE WITH ADMINISTRATIVE REGULATIONS
REQUIRING ADDITIONAL WAGES TO BE PAID.  WITH OR WITHOUT A WAR LABOR
BOARD ORDER, WHEN THE GOVERNMENT INCREASED THE WAGES OF THE MINERS WHOM
IT EMPLOYED, IT THEREBY INCURRED THE EXPENSE.  MOREOVER, IT IS
IMMATERIAL THAT GOVERNMENTAL OPERATION RESULTED IN A SMALLER LOSS THAN
PEWEE WOULD HAVE SUSTAINED IF THERE HAD BEEN NO SEIZURE OF THE MINES. 
WHATEVER MIGHT HAVE BEEN PEWEE'S LOSSES HAD IT BEEN LEFT FREE TO
EXERCISE ITS OWN BUSINESS JUDGMENT, THE CRUCIAL FACT IS THAT THE
GOVERNMENT CHOSE TO INTERVENE BY TAKING POSSESSION AND OPERATING
CONTROL.  BY DOING SO, IT BECAME THE PROPRIETOR AND, IN THE ABSENCE OF
CONTRARY ARRANGEMENTS, WAS ENTITLED TO THE BENEFITS AND SUBJECT TO THE
LIABILITIES WHICH THAT STATUS INVOLVES. 

THE JUDGMENT OF THE COURT OF CLAIMS IS AFFIRMED. 

FN1  "  ...  NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE,
WITHOUT JUST COMPENSATION."  U.S. CONST., AMEND. V. 

FN2  340 U.S. 808. 

FN3  BRIEF FOR UNITED MINE WORKERS OF AMERICA AND JOHN L. LEWIS, P.
32, UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258. 

FN4  THE CASE OF MARION & RYE VALLEY R. CO. V. UNITED STATES, 270
U.S. 280, IS CITED BY THE GOVERNMENT AS SUPPORTING ITS VIEW THAT THERE
WAS NO "TAKING" HERE.  IN THAT CASE, HOWEVER, THE COURT HAD "NO
OCCASION TO DETERMINE WHETHER IN LAW THE PRESIDENT TOOK POSSESSION AND
ASSUMED CONTROL" OF A RAILROAD.  INSTEAD, IT DEALT WITH THE PROBLEM ON
THE ASSUMPTION THAT THERE WAS A "TAKING" AND PROCEEDED TO DECISION ON
THE FINDING THAT THE RAILROAD "WAS NOT SUBJECTED BY THE GOVERNMENT TO
PECUNIARY LOSS."  THIS DECISION CANNOT BE ACCEPTED AS CONTROLLING THE
PRESENT CASE SINCE WHETHER THERE IS A "TAKING" MUST BE DETERMINED IN
LIGHT OF THE PARTICULAR FACTS AND CIRCUMSTANCES INVOLVED. 

MR. JUSTICE REED, CONCURRING. 

I AGREE THAT IN THIS CASE THERE WAS A "TAKING" BY EMINENT DOMAIN THAT
REQUIRES THE GOVERNMENT TO PAY JUST COMPENSATION TO THE OWNER OF THE
PROPERTY FOR ITS USE.  HOWEVER, IT IS IMPOSSIBLE FOR ME TO ACCEPT THE
VIEW THAT THE "TAKING" IN THIS CASE REQUIRES THE UNITED STATES TO BEAR
ALL OPERATING LOSSES DURING THE PERIOD IT CONTROLS THE PROPERTY WITHOUT
THE OWNER'S CONSENT OR AGREEMENT.  SUCH A VIEW WOULD LEAD TO DISASTROUS
CONSEQUENCES WHERE PROPERTIES NECESSARILY TAKEN FOR THE BENEFIT OF THE
NATION HAVE A LONG RECORD OF OPERATING LOSSES, E.G., CERTAIN RAILROADS,
COAL MINES, OR TELEVISION BROADCASTING STATIONS.  THE QUESTION OF WHO
BEARS SUCH LOSSES IS NOT, I THINK, "CONCEPTUALLY DISTINCT" FROM THE
QUESTION OF JUST COMPENSATION.  LOSSES OR PROFITS ON THE TEMPORARY
OPERATION AFTER THE DECLARATION OR JUDGMENT OF TAKING ARE FACTORS TO BE
TAKEN INTO CONSIDERATION IN DETERMINING WHAT IS JUST COMPENSATION TO
THE OWNER. 

THIS IS A TEMPORARY TAKING.  THE RELATIVELY NEW TECHNIQUE OF
TEMPORARY TAKING BY EMINENT DOMAIN IS A MOST USEFUL ADMINISTRATIVE
DEVICE:  MANY PROPERTIES, SUCH AS LAUNDRIES, OR COAL MINES, OR
RAILROADS, MAY BE SUBJECTED TO PUBLIC OPERATION ONLY FOR A SHORT TIME
TO MEET WAR OR EMERGENCY NEEDS, AND CAN THEN BE RETURNED TO THEIR
OWNERS.  HOWEVER, THE USE OF THE TEMPORARY TAKING HAS SPAWNED A HOST OF
DIFFICULT PROBLEMS, E.G., UNITED STATES V. GENERAL MOTORS CORP., 323
U.S. 373; UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372; KIMBALL
LAUNDRY CO. V. UNITED STATES, 338 U.S. 1, ESPECIALLY IN THE FIXING OF
THE JUST COMPENSATION.  MARKET VALUE, DESPITE ITS DIFFICULTIES,
PROVIDES A FAIRLY ACCEPTABLE TEST FOR JUST COMPENSATION WHEN THE
PROPERTY IS TAKEN ABSOLUTELY.  SEE UNITED STATES V. MILLER, 317 U.S.
369; UNITED STATES V. JOHN J. FELIN & CO., 334 U.S. 624; UNITED STATES
V. TORONTO NAVIGATION CO., 338 U.S. 396; UNITED STATES V. COMMODITIES
TRADING CORP., 339 U.S. 121.  BUT IN THE TEMPORARY TAKING OF OPERATING
PROPERTIES, E.G., MARION & RYE VALLEY R. CO. V. UNITED STATES, 270 U.S.
280; UNITED STATES V. UNITED MINE WORKERS OF AMERICA, 330 U.S. 258,
MARKET VALUE IS TOO UNCERTAIN A MEASURE TO HAVE ANY PRACTICAL
SIGNIFICANCE.  THE RENTAL VALUE FOR A FULLY FUNCTIONING RAILROAD FOR AN
UNCERTAIN PERIOD IS AN UNKNOWABLE QUANTITY.  THIS LED TO A GOVERNMENT
GUARANTEE OF EARNINGS IN THE FIRST WORLD WAR, 40 STAT. 451.  CF. UNITED
STATES V. WESTINGHOUSE ELECTRIC & MFG. CO., 339 U.S. 261.  THE MOST
REASONABLE SOLUTION IS TO AWARD COMPENSATION TO THE OWNER AS DETERMINED
BY A COURT UNDER ALL THE CIRCUMSTANCES OF THE PARTICULAR CASE. 

TEMPORARY TAKINGS CAN ASSUME VARIOUS FORMS.  THERE MAY BE A TAKING IN
WHICH THE OWNERS ARE OUSTED FROM OPERATION, THEIR BUSINESS SUSPENDED,
AND THE PROPERTY DEVOTED TO NEW USES.  UNITED STATES V. GENERAL MOTORS
CORP., 323 U.S. 373; UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372;
KIMBALL LAUNDRY CO. V. UNITED STATES, 338 U.S. 1.  A SECOND KIND OF
TAKING IS WHERE, AS HERE, THE GOVERNMENT, FOR PUBLIC SAFETY OR THE
PROTECTION OF THE PUBLIC WELFARE, "TAKES" THE PROPERTY IN THE SENSE OF
ASSUMING THE RESPONSIBILITY OF ITS DIRECTION AND EMPLOYMENT FOR
NATIONAL PURPOSES, LEAVING THE ACTUAL OPERATIONS IN THE HANDS OF ITS
OWNERS AS GOVERNMENT OFFICIALS APPOINTED TO CONDUCT ITS AFFAIRS WITH
THE ASSETS AND EQUIPMENT OF THE CONTROLLED COMPANY.  EXAMPLES ARE THE
OPERATION OF RAILROADS, MOTOR CARRIERS, OR COAL MINES.  MARION & RYE
VALLEY R. CO. V. UNITED STATES, 270 U.S. 280; UNITED STATES V. UNITED
MINE WORKERS OF AMERICA, 330 U.S. 258. 

WHEN, IN A TEMPORARY TAKING, NO AGREEMENT IS REACHED WITH THE OWNERS,
THE COURTS MUST DETERMINE WHAT PAYMENTS THE GOVERNMENT MUST MAKE. 
WHATEVER THE NATURE OF THE "TAKING," THE TEST SHOULD BE THE
CONSTITUTIONAL REQUIREMENT OF "JUST COMPENSATION."  HOWEVER, THERE IS
NO INFLEXIBLE REQUIREMENT THAT THE SAME INCIDENTS MUST BE USED IN EACH
APPLICATION OF THE TEST. 

SO FAR AS THE SECOND KIND OF TEMPORARY "TAKING" IS CONCERNED, THE
GOVERNMENT'S SUPERVISION OF A LOSING BUSINESS FOR A TEMPORARY EMERGENCY
OUGHT NOT TO PLACE UPON THE GOVERNMENT THE BURDEN OF THE LOSSES
INCURRED DURING THAT SUPERVISION UNLESS THE LOSSES WERE INCURRED BY
GOVERNMENTAL ACTS, E.G., IF THE BUSINESS WOULD NOT HAVE BEEN CONDUCTED
AT ALL BUT FOR THE GOVERNMENT, OR IF EXTRA LOSSES OVER WHAT WOULD HAVE
BEEN OTHERWISE SUSTAINED WERE OCCASIONED BY GOVERNMENT OPERATIONS. 
WHERE THE OWNER'S LOSSES ARE WHAT THEY WOULD HAVE BEEN WITHOUT THE
"TAKING," THE OWNER HAS SUFFERED NO LOSS OR DAMAGE FOR WHICH
COMPENSATION IS DUE.  CF. MARION & RYE VALLEY R. CO. V. UNITED STATES,
270 U.S. 280.  THE MEASURE OF JUST COMPENSATION HAS ALWAYS BEEN THE
LOSS TO THE OWNER, NOT THE LOSS OR GAIN TO THE GOVERNMENT.  BOSTON
CHAMBER OF COMMERCE V. BOSTON, 217 U.S. 189, 195.    HERE THE COURT OF
CLAIMS HAS CORRECTLY APPLIED THESE PRINCIPLES IN A CASE OF A LOSING
OPERATION IN A TEMPORARY TAKING.  IT HAS FOUND THAT A CERTAIN SUM WAS
EXPENDED WITHOUT LEGAL OR BUSINESS NECESSITY SO TO DO.  THIS SUM WAS
THE EXTRA ALLOWANCE PAID AT THE DIRECTION OF THE UNITED STATES UNDER A
CERTAIN WAR LABOR BOARD RECOMMENDATION THAT HAD NO LEGAL SANCTION.  50
U.S.C. APP. SEC. 1507; E.O. 9017, 3 CFR, 1943 CUM. SUPP., 1075.  I
WOULD NOT OVERTURN ITS FINDING IN THIS CASE AND WOULD THEREFORE
AFFIRM. 

MR. JUSTICE BURTON, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE CLARK
AND MR. JUSTICE MINTON CONCUR, DISSENTING.    I AGREE THAT THERE WAS A
"TAKING" OF THE MINING PROPERTY FROM MAY 1 TO OCTOBER 12, 1943, BUT I
FIND NO GROUND FOR ALLOWING THE RESPONDENT TO RECOVER THE SUM HERE
SOUGHT AS COMPENSATION FOR SUCH TAKING. 

THIS CASE IS WITHIN THE PRINCIPLE STATED IN MARION & R.V.R. CO. V.
UNITED STATES, 270 U.S. 280, 282, AS FOLLOWS: "(EVEN) IF THERE WAS
TECHNICALLY A TAKING, THE JUDGMENT FOR DEFENDANT WAS RIGHT.  NOTHING
WAS RECOVERABLE AS JUST COMPENSATION, BECAUSE NOTHING OF VALUE WAS
TAKEN FROM THE COMPANY; AND IT WAS NOT SUBJECTED BY THE GOVERNMENT TO
PECUNIARY LOSS.  NOMINAL DAMAGES ARE NOT RECOVERABLE IN THE COURT OF
CLAIMS." 

HERE THERE IS NO SHOWING BY THE COMPANY OF ANY RENTAL VALUE DUE IT AS
COMPENSATION FOR THE GOVERNMENT'S POSSESSION OF ITS PROPERTIES.  THERE
IS NO SHOWING THAT ANYTHING OF COMPENSABLE VALUE WAS TAKEN BY THE
GOVERNMENT FROM THE COMPANY, OR THAT THE GOVERNMENT SUBJECTED THE
COMPANY TO ANY PECUNIARY LOSS.  THE DISSENTING JUDGE IN THE COURT OF
CLAIMS POINTED OUT THAT - 

"THIS EXTRA EXPENSE CONSISTED OF AN INCREASED VACATION ALLOWANCE TO
THE PLAINTIFF'S WORKMEN, AND THE REFUND TO THEM OF OCCUPATIONAL CHARGES
LIKE RENTALS ON MINE LAMPS.  THE COURT HAS NOT FOUND THAT THE PLAINTIFF
(COMPANY) COULD HAVE OPERATED ITS MINE WITHOUT MAKING THE CONCESSIONS
DIRECTED BY THE WAR LABOR BOARD, NOR HAS IT FOUND WHAT THE LOSSES TO
THE PLAINTIFF WOULD HAVE BEEN IF THE GOVERNMENT HAD NOT INTERVENED AND
THE STRIKE HAD CONTINUED.  I THINK THAT THE COURT IS NOT JUSTIFIED IN
AWARDING THE PLAINTIFF THE AMOUNT OF THESE EXPENDITURES WHEN IT DOES
NOT AND, I THINK, COULD NOT, FIND THAT THE PLAINTIFF WAS, IN FACT,
FINANCIALLY HARMED BY THE GOVERNMENT'S ACTS."  115 CT. CL. AT 678-679,
88 F.SUPP.  AT 431. 

ACCORDINGLY, I WOULD REVERSE THE JUDGMENT OF THE COURT OF CLAIMS AND
ALLOW NO RECOVERY BY THE RESPONDENT. 
..END :









ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 123 


ARGUED OCTOBER 11, 1950.  - DECIDED APRIL 30, 1951.  - 85 U.S. APP. D.C.
255, 177 F.2D 79 - 86 U.S. APP. D.C. 287, 182 F.2D 368, REVERSED. 


PURPORTING TO ACT UNDER PART III, SEC. 3 OF EXECUTIVE ORDER NO. 9835,
THE ATTORNEY GENERAL, WITHOUT NOTICE OR HEARING, DESIGNATED THE THREE
PETITIONER ORGANIZATIONS AS COMMUNIST IN A LIST FURNISHED TO THE
LOYALTY REVIEW BOARD FOR USE IN CONNECTION WITH DETERMINATIONS OF
DISLOYALTY OF GOVERNMENT EMPLOYEES.  THE BOARD DISSEMINATED THE LIST TO
ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT.  PETITIONERS SUED FOR
DECLARATORY JUDGMENTS AND INJUNCTIVE RELIEF.  THEY ALLEGED THAT THEIR
ORGANIZATIONS WERE ENGAGED IN CHARITABLE OR CIVIC ACTIVITIES OR IN THE
BUSINESS OF FRATERNAL INSURANCE; ALL THREE IMPLIED AN ATTITUDE OF
COOPERATION AND HELPFULNESS, RATHER THAN ONE OF HOSTILITY OR DISLOYALTY
TOWARD THE UNITED STATES; AND TWO EXPRESSLY ALLEGED THAT THEIR
RESPECTIVE ORGANIZATIONS WERE NOT WITHIN ANY CLASSIFICATION LISTED IN
PART III, SEC. 3 OF THE ORDER.  PETITIONERS FURTHER ALLEGED THAT THE
ACTIONS OF THE ATTORNEY GENERAL AND THE BOARD GREATLY HAMPERED THEIR
ACTIVITIES AND DEPRIVED THEM OF RIGHTS IN VIOLATION OF THE
CONSTITUTION; THAT THE EXECUTIVE ORDER VIOLATES THE FIRST, FIFTH,
NINTH, AND TENTH AMENDMENTS TO THE CONSTITUTION; THAT SEC. 9A OF THE
HATCH ACT, AS CONSTRUED AND APPLIED, IS VOID; AND THAT PETITIONERS WERE
SUFFERING IRREPARABLE INJURY AND HAD NO ADEQUATE REMEDY AT LAW.  THE
DISTRICT COURT GRANTED MOTIONS TO DISMISS THE COMPLAINTS FOR FAILURE TO
STATE CLAIMS UPON WHICH RELIEF COULD BE GRANTED.  THE COURT OF APPEALS
AFFIRMED.  HELD:  THE JUDGMENTS ARE REVERSED AND THE CASES ARE REMANDED
TO THE DISTRICT COURT WITH INSTRUCTIONS TO DENY THE MOTIONS THAT THE
COMPLAINTS BE DISMISSED FOR FAILURE TO STATE CLAIMS UPON WHICH RELIEF
COULD BE GRANTED.  PP. 124-125, 142. 

FOR THE OPINIONS OF THE JUSTICES CONSTITUTING THE MAJORITY OF THE
COURT, SEE: 

OPINION OF MR. JUSTICE BURTON, JOINED BY MR. JUSTICE DOUGLAS, PP. 124
142. 

OPINION OF MR. JUSTICE BLACK, PP. 142-149. 

OPINION OF MR. JUSTICE FRANKFURTER, PP. 149-174. 

OPINION OF MR. JUSTICE DOUGLAS, PP. 174-183. 

OPINION OF MR. JUSTICE JACKSON, PP. 183-187. 

FOR THE DISSENTING OPINION OF MR. JUSTICE REED, JOINED BY THE CHIEF
JUSTICE AND MR. JUSTICE MINTON, SEE PP. 187-213. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
ANY OF THESE CASES. 

JOINT ANTI-FASCIST REFUGEE COMMITTEE V. MCGRATH, ATTORNEY GENERAL, ET
AL. 

NO. 8.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT* . 

*TOGETHER WITH NO. 7, NATIONAL COUNCIL OF AMERICAN-SOVIET FRIENDSHIP,
INC. ET AL. V. MCGRATH, ATTORNEY GENERAL, ET AL.; AND NO. 71,
INTERNATIONAL WORKERS ORDER, INC. ET AL. V. MCGRATH, ATTORNEY GENERAL,
ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

THE CASES ARE STATED IN THE OPINION OF MR. JUSTICE BURTON, PP. 130
135.  REVERSED AND REMANDED, P. 142. 

MR. JUSTICE BURTON ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
THE FOLLOWING OPINION, IN WHICH MR. JUSTICE DOUGLAS JOINS: 

IN EACH OF THESE CASES THE SAME ISSUE IS RAISED BY THE DISMISSAL OF A
COMPLAINT FOR ITS FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED.  THAT ISSUE IS WHETHER, IN THE FACE OF THE FACTS ALLEGED IN
THE COMPLAINT AND THEREFORE ADMITTED BY THE MOTION TO DISMISS, THE
ATTORNEY GENERAL OF THE UNITED STATES HAS AUTHORITY TO INCLUDE THE
COMPLAINING ORGANIZATION IN A LIST OF ORGANIZATIONS DESIGNATED BY HIM
AS COMMUNIST AND FURNISHED BY HIM TO THE LOYALTY REVIEW BOARD OF THE
UNITED STATES CIVIL SERVICE COMMISSION.  HE CLAIMS TO DERIVE AUTHORITY
TO DO THIS FROM THE FOLLOWING PROVISIONS IN PART III, SEC. 3, OF
EXECUTIVE ORDER NO. 9835, ISSUED BY THE PRESIDENT, MARCH 21, 1947:

             "PART III - RESPONSIBILITIES OF CIVIL SERVICE

    COMMISSION 

     .         .         .         .       . 

"3.  THE LOYALTY REVIEW BOARD SHALL CURRENTLY BE FURNISHED BY THE
DEPARTMENT OF JUSTICE THE NAME OF EACH FOREIGN OR DOMESTIC
ORGANIZATION, ASSOCIATION, MOVEMENT, GROUP OR COMBINATION OF PERSONS
WHICH THE ATTORNEY GENERAL, AFTER APPROPRIATE INVESTIGATION AND
DETERMINATION, DESIGNATES AS TOTALITARIAN, FASCIST, COMMUNIST OR
SUBVERSIVE, OR AS HAVING ADOPTED A POLICY OF ADVOCATING OR APPROVING
THE COMMISSION OF ACTS OF FORCE OR VIOLENCE TO DENY OTHERS THEIR RIGHTS
UNDER THE CONSTITUTION OF THE UNITED STATES, OR AS SEEKING TO ALTER THE
FORM OF GOVERNMENT OF THE UNITED STATES BY UNCONSTITUTIONAL MEANS. 

"A.  THE LOYALTY REVIEW BOARD SHALL DISSEMINATE SUCH INFORMATION TO
ALL DEPARTMENTS AND AGENCIES."  3 CFR, 1947 SUPP., PP. 129, 131, 12
FED. REG. 1935, 1938. 

THE RESPECTIVE COMPLAINTS DESCRIBE THE COMPLAINING ORGANIZATIONS AS
ENGAGED IN CHARITABLE OR CIVIC ACTIVITIES OR IN THE BUSINESS OF
FRATERNAL INSURANCE.  EACH IMPLIES AN ATTITUDE OF COOPERATION AND
HELPFULNESS, RATHER THAN ONE OF HOSTILITY OR DISLOYALTY, ON THE PART OF
THE ORGANIZATION TOWARD THE UNITED STATES.  TWO OF THE COMPLAINTS DENY
EXPRESSLY THAT THE ORGANIZATION IS WITHIN ANY CLASSIFICATION SPECIFIED
IN PART III, SEC. 3, OF THE ORDER. 

FOR THE REASONS HEREINAFTER STATED, WE CONCLUDE THAT, IF THE
ALLEGATIONS OF THE COMPLAINTS ARE TAKEN AS TRUE (AS THEY MUST BE ON THE
MOTIONS TO DISMISS), THE EXECUTIVE ORDER DOES NOT AUTHORIZE THE
ATTORNEY GENERAL TO FURNISH THE LOYALTY REVIEW BOARD WITH A LIST
CONTAINING SUCH A DESIGNATION AS HE GAVE TO EACH OF THESE ORGANIZATIONS
WITHOUT OTHER JUSTIFICATION.  UNDER SUCH CIRCUMSTANCES HIS OWN
ADMISSIONS RENDER HIS DESIGNATIONS PATENTLY ARBITRARY BECAUSE THEY ARE
CONTRARY TO THE ALLEGED AND UNCONTROVERTED FACTS CONSTITUTING THE
ENTIRE RECORD BEFORE US.  THE COMPLAINING ORGANIZATIONS HAVE NOT BEEN
AFFORDED ANY OPPORTUNITY TO SUBSTANTIATE THEIR ALLEGATIONS, BUT AT THIS
STAGE OF THE PROCEEDINGS THE ATTORNEY GENERAL HAS CHOSEN NOT TO DENY
THEIR ALLEGATIONS AND HAS NOT OTHERWISE PLACED THEM IN ISSUE. 

WHATEVER MAY BE HIS AUTHORITY TO DESIGNATE THESE ORGANIZATIONS AS
COMMUNIST UPON UNDISCLOSED FACTS IN HIS POSSESSION, HE HAS NOT CHOSEN
TO LIMIT HIMSELF TO THAT AUTHORIZATION.  BY HIS PRESENT PROCEDURE HE
HAS CLAIMED AUTHORITY SO TO DESIGNATE THEM UPON THE VERY FACTS ALLEGED
BY THEM IN THEIR OWN COMPLAINTS.  SELF-SERVING OR NOT, THOSE
ALLEGATIONS DO NOT STATE FACTS FROM WHICH ALONE A REASONABLE
DETERMINATION CAN BE DERIVED THAT THE ORGANIZATIONS ARE COMMUNIST.  TO
DEFEND SUCH A DESIGNATION OF THEM, ON THE BASIS OF THE COMPLAINTS
ALONE, IS AN ASSERTION OF PRESIDENTIAL AUTHORITY SO TO DESIGNATE AN
ORGANIZATION AT THE OPTION OF THE ATTORNEY GENERAL WITHOUT RELIANCE
UPON EITHER DISCLOSED OR UNDISCLOSED FACTS SUPPLYING A REASONABLE BASIS
FOR THE DETERMINATION.  IT IS THAT, AND ONLY THAT OUTER LIMIT OF THE
AUTHORITY OF THE ATTORNEY GENERAL THAT IS NOW BEFORE US. 

AT LEAST SINCE 1939, INCREASING CONCERN HAS BEEN EXPRESSED, IN AND
OUT OF CONGRESS, AS TO THE POSSIBLE PRESENCE IN THE EMPLOY OF THE
GOVERNMENT OF PERSONS DISLOYAL TO IT.  THIS IS REFLECTED IN THE
LEGISLATION, REPORTS AND EXECUTIVE ORDERS CULMINATING IN EXECUTIVE
ORDER NO. 9835.  FN1  THAT ORDER ANNOUNCED THE PRESIDENT'S EMPLOYEES
LOYALTY PROGRAM IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.  IT STATES
THAT BOTH "MAXIMUM PROTECTION MUST BE AFFORDED THE UNITED STATES
AGAINST INFILTRATION OF DISLOYAL PERSONS INTO THE RANKS OF ITS
EMPLOYEES, AND EQUAL PROTECTION FROM UNFOUNDED ACCUSATIONS OF
DISLOYALTY MUST BE AFFORDED THE LOYAL EMPLOYEES OF THE GOVERNMENT:
...."  IT PROVIDES FOR THE LOYALTY REVIEW BOARD AND SETS UP A STANDARD
FOR REFUSALS OF AND REMOVALS FROM EMPLOYMENT ON GROUNDS RELATING TO
LOYALTY.  IT OUTLINES THE USE TO BE MADE IN THAT CONNECTION OF THE LIST
OF ORGANIZATIONS TO BE FURNISHED BY THE ATTORNEY GENERAL.  FN2  THE
ORGANIZATIONS TO BE DESIGNATED ON THAT LIST ARE NOT LIMITED TO THOSE
HAVING FEDERAL EMPLOYEES IN THEIR MEMBERSHIPS.  THEY MAY EVEN EXCLUDE
SUCH EMPLOYEES FROM MEMBERSHIP.  ACCORDINGLY, THE IMPACT OF THE
ATTORNEY GENERAL'S LIST IS BY NO MEANS LIMITED TO PERSONS WHO ARE
SUBJECT TO THE EMPLOYEES LOYALTY PROGRAM. 

THE ATTORNEY GENERAL INCLUDED EACH OF THE COMPLAINING ORGANIZATIONS
IN THE LIST HE FURNISHED TO THE LOYALTY REVIEW BOARD NOVEMBER 24,
1947.  THAT LIST WAS DISSEMINATED BY THE BOARD TO ALL DEPARTMENTS AND
AGENCIES OF THE UNITED STATES DECEMBER 4, 1947.  13 FED. REG. 1473. 
FN3  THE COMPLAINTS ALLEGE THAT SUCH ACTION RESULTED IN NATIONWIDE
PUBLICITY AND CAUSED THE INJURIES TO THE COMPLAINING ORGANIZATIONS
WHICH ARE DETAILED LATER.  SEPTEMBER 17, 1948, DURING THE PENDENCY OF
THE INSTANT CASES BUT BEFORE ACTION UPON THE APPEALS IN ANY OF THEM,
"THE ATTORNEY GENERAL FURNISHED THE LOYALTY REVIEW BOARD WITH A
CONSOLIDATED LIST CONTAINING THE NAMES OF ALL OF THE ORGANIZATIONS
PREVIOUSLY DESIGNATED BY HIM AS WITHIN EXECUTIVE ORDER 9835, SEGREGATED
ACCORDING TO THE CLASSIFICATIONS ENUMERATED IN SECTION 3, PART III, ON
THE BASIS OF DOMINANT CHARACTERISTICS."  FN4  HE ENUMERATED SIX
CLASSIFICATIONS AND CLASSIFIED THE THREE COMPLAINING ORGANIZATIONS AS
"COMMUNIST."  FN5 

THE INSTANT CASES ORIGINATED IN THE DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA AND COME HERE AFTER AFFIRMANCE BY THE COURT OF APPEALS.  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE ISSUES AND THEIR
RELATION TO THE EMPLOYEES LOYALTY PROGRAM.  NO. 8, 339 U.S. 910; NO. 7,
339 U.S. 956; NO. 71, 340 U.S. 805. 

    NO. 8.  - THE REFUGEE COMMITTEE CASE 

THE COMPLAINANT IS THE JOINT ANTI-FASCIST REFUGEE COMMITTEE, AN
UNINCORPORATED ASSOCIATION IN THE CITY AND STATE OF NEW YORK.  IT IS
THE PETITIONER HERE.  THE DEFENDANTS IN THE ORIGINAL ACTION WERE THE
ATTORNEY GENERAL, TOM C. CLARK, AND THE MEMBERS OF THE LOYALTY REVIEW
BOARD.  J. HOWARD MCGRATH HAS BEEN SUBSTITUTED AS THE ATTORNEY GENERAL
AND HE AND THE MEMBERS OF THAT BOARD ARE THE RESPONDENTS HERE. 

THE FOLLOWING STATEMENT, BASED ON THE ALLEGATIONS OF THE COMPLAINT,
SUMMARIZES THE SITUATION BEFORE US:  THE COMPLAINANT IS "A CHARITABLE
ORGANIZATION ENGAGED IN RELIEF WORK" WHICH CARRIED ON ITS RELIEF
ACTIVITIES FROM 1942 TO 1946 UNDER A LICENSE FROM THE PRESIDENT'S WAR
RELIEF CONTROL BOARD.  THEREAFTER, IT VOLUNTARILY SUBMITTED ITS
PROGRAM, BUDGETS AND AUDITS FOR INSPECTION BY THE ADVISORY COMMITTEE ON
VOLUNTARY FOREIGN AID OF THE UNITED STATES GOVERNMENT.  SINCE ITS
INCEPTION, IT HAS, THROUGH VOLUNTARY CONTRIBUTIONS, RAISED AND
DISBURSED FUNDS FOR THE BENEFIT OF ANTI-FASCIST REFUGEES WHO ASSISTED
THE GOVERNMENT OF SPAIN AGAINST ITS OVERTHROW BY FORCE AND VIOLENCE. 
THE ORGANIZATION'S AIMS AND PURPOSES "ARE TO RAISE, ADMINISTER AND
DISTRIBUTE FUNDS FOR THE RELIEF AND REHABILITATION OF SPANISH
REPUBLICANS IN EXILE AND OTHER ANTI-FASCIST REFUGEES WHO FOUGHT IN THE
WAR AGAINST FRANCO."  FN6 

IT HAS DISBURSED $1,011,448 IN CASH, AND $217,903 IN KIND, FOR THE
RELIEF OF ANTI-FASCIST REFUGEES AND THEIR FAMILIES.  THIS RELIEF HAS
INCLUDED MONEY, FOOD, SHELTER, EDUCATIONAL FACILITIES, MEDICAL
TREATMENT AND SUPPLIES, AND CLOTHING TO RECIPIENTS IN 11 COUNTRIES,
INCLUDING THE UNITED STATES.  THE ACTS OF THE ATTORNEY GENERAL AND THE
LOYALTY REVIEW BOARD, PURPORTING TO BE TAKEN BY THEM UNDER AUTHORITY OF
THE EXECUTIVE ORDER, HAVE SERIOUSLY AND IRREPARABLY IMPAIRED, AND WILL
CONTINUE TO SO IMPAIR, THE REPUTATION OF THE ORGANIZATION AND THE MORAL
SUPPORT AND GOOD WILL OF THE AMERICAN PEOPLE NECESSARY FOR THE
CONTINUANCE OF ITS CHARITABLE ACTIVITIES.  UPON INFORMATION AND BELIEF,
THESE ACTS HAVE CAUSED MANY CONTRIBUTORS, ESPECIALLY PRESENT AND
PROSPECTIVE CIVIL SERVANTS, TO REDUCE OR DISCONTINUE THEIR
CONTRIBUTIONS TO THE ORGANIZATION; MEMBERS AND PARTICIPANTS IN ITS
ACTIVITIES HAVE BEEN "VILIFIED AND SUBJECTED TO PUBLIC SHAME, DISGRACE,
RIDICULE AND OBLOQUY  ...  " THEREBY INFLICTING UPON IT ECONOMIC INJURY
AND DISCOURAGING PARTICIPATION IN ITS ACTIVITIES; IT HAS BEEN HAMPERED
IN SECURING MEETING PLACES; AND MANY PEOPLE HAVE REFUSED TO TAKE PART
IN ITS FUND-RAISING ACTIVITIES. 

THIS COMPLAINT DOES NOT CONTAIN AN EXPRESS DENIAL THAT THE
COMPLAINING ORGANIZATION IS WITHIN THE CLASSIFICATIONS NAMED IN PART
III, SEC. 3, OF EXECUTIVE ORDER NO. 9835.  IT DOES, HOWEVER, STATE THAT
THE ACTIONS OF THE ATTORNEY GENERAL AND THE LOYALTY REVIEW BOARD WHICH
ARE COMPLAINED OF ARE UNAUTHORIZED AND WITHOUT WARRANT IN LAW AND
AMOUNT TO A DEPRIVATION OF THE COMPLAINANT'S RIGHTS IN VIOLATION OF THE
CONSTITUTION; THAT EXECUTIVE ORDER NO. 9835, ON ITS FACE AND AS
CONSTRUED AND APPLIED, VIOLATES THE FIRST, FIFTH, NINTH AND TENTH
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND THAT SEC. 9A OF
THE HATCH ACT, 53 STAT. 1148, 5 U.S.C. (1946 ED., SUPP.III) SEC. 118J,
INSOFAR AS IT PURPORTS TO AUTHORIZE THE INSTANT APPLICATION OF THE
ORDER, IS VOID.  FN7  IT ASKS FOR DECLARATORY AND INJUNCTIVE RELIEF,
ALLEGING THAT THE COMPLAINING ORGANIZATION IS SUFFERING IRREPARABLE
LOSS AND THAT NO ADEQUATE REMEDY IS AVAILABLE TO IT EXCEPT THROUGH THE
EQUITY POWERS OF THE DISTRICT COURT.  THAT COURT GRANTED A MOTION TO
DISMISS THE COMPLAINT FOR ITS FAILURE TO STATE A CLAIM UPON WHICH
RELIEF COULD BE GRANTED AND DENIED THE COMPLAINANT'S MOTION FOR A
PRELIMINARY INJUNCTION.  FN8  THE COURT OF APPEALS AFFIRMED, ONE JUDGE
DISSENTING.  85 U.S. APP. D.C. 255, 177 F.2D 79. 

                  NO. 7.  - THE NATIONAL COUNCIL CASE 

IN THIS CASE THE COURT BELOW RELIED UPON ITS DECISION IN THE REFUGEE
COMMITTEE CASE AND REACHED THE SAME RESULT, PER CURIAM (UNREPORTED). 
EXCEPT AS INDICATED BELOW IN OUR SUMMARY OF THE FACTS ALLEGED, THIS
CASE, FOR OUR PURPOSES, IS LIKE THE FIRST.  THE COMPLAINANTS, WHO ARE
THE PETITIONERS HERE, ARE THE NATIONAL COUNCIL OF AMERICAN-SOVIET
FRIENDSHIP, INC., A NEW YORK NONPROFIT MEMBERSHIP CORPORATION,
ORGANIZED IN 1943; THE DENVER COUNCIL OF AMERICAN-SOVIET FRIENDSHIP, A
COLORADO UNINCORPORATED ASSOCIATION AND LOCAL AFFILIATE OF THE NATIONAL
COUNCIL; AND SIX INDIVIDUAL OFFICERS AND DIRECTORS OF ONE OR THE OTHER
OF THESE ORGANIZATIONS.  THE PURPOSE OF THE NATIONAL COUNCIL "IS TO
STRENGTHEN FRIENDLY RELATIONS BETWEEN THE UNITED STATES AND THE UNION
OF SOVIET SOCIALIST REPUBLICS BY DISSEMINATING TO THE AMERICAN PEOPLE
EDUCATIONAL MATERIAL REGARDING THE SOVIET UNION, BY DEVELOPING CULTURAL
RELATIONS BETWEEN THE PEOPLES OF THE TWO NATIONS, AND BY COMBATTING
ANTI-SOVIET PROPAGANDA DESIGNED TO DISRUPT FRIENDLY RELATIONS BETWEEN
THE PEOPLES OF THESE NATIONS AND TO DIVIDE THE UNITED NATIONS."  THE
COMPLAINT ALLEGES THAT ALL OF THE COMPLAINANTS ARE SERIOUSLY AND
IRREPARABLY INJURED IN THEIR CAPACITY TO CONDUCT THE NATIONAL COUNCIL'S
EDUCATIONAL, CULTURAL AND FUND-RAISING PROGRAM, AND THAT THE INDIVIDUAL
COMPLAINANTS HAVE SUFFERED PERSONAL LOSSES SUCH AS THE REMOVAL OF ONE
FROM AN ASSISTANT RECTORSHIP OF A CHURCH, THE LOSS BY ANOTHER OF A
TEACHING POSITION, AND NUMEROUS CANCELLATIONS OF LECTURING AND
PROFESSIONAL ENGAGEMENTS.  THE COMPLAINT EXPRESSLY STATES THAT - 

"IN ALL ITS ACTIVITIES THE NATIONAL COUNCIL HAS SOUGHT TO FURTHER THE
BEST INTERESTS OF THE AMERICAN PEOPLE BY LAWFUL, PEACEFUL AND
CONSTITUTIONAL MEANS.  IT HAS NEVER IN ANY WAY ENGAGED IN ANY CONDUCT
OR ACTIVITY WHICH PROVIDES ANY BASIS FOR IT TO BE DESIGNATED AS
'TOTALITARIAN, FASCIST, COMMUNIST OR SUBVERSIVE, OR AS HAVING ADOPTED A
POLICY OF ADVOCATING OR APPROVING THE COMMISSION OF ACTS OF FORCE OR
VIOLENCE TO DENY OTHERS THEIR RIGHTS UNDER THE CONSTITUTION OF THE
UNITED STATES, OR AS SEEKING TO ALTER THE FORM OF GOVERNMENT OF THE
UNITED STATES BY UNCONSTITUTIONAL MEANS.'"                     NO. 71. 
- THE INTERNATIONAL WORKERS CASE 

THE COMPLAINING ORGANIZATION, WHICH IS THE PETITIONER HERE, IS A
FRATERNAL BENEFIT SOCIETY, ORGANIZED IN 1930 AS A CORPORATION UNDER THE
INSURANCE LAW OF THE STATE OF NEW YORK, OPERATING FOR THE MUTUAL
BENEFIT OF ITS MEMBERS AND THEIR BENEFICIARIES AND NOT FOR PROFIT.  IT
IS LICENSED AND OPERATES IN THE DISTRICT OF COLUMBIA AND SEVERAL
STATES; ITS PURPOSES ARE COMPARABLE TO THOSE OF FRATERNAL BENEFIT
SOCIETIES IN GENERAL; IT OPERATES UNDER A LODGE SYSTEM AND HAS A
REPRESENTATIVE FORM OF GOVERNMENT; AT THE TIME OF THE PROMULGATION OF
THE DEPARTMENT OF JUSTICE LIST IT HAD 185,000 MEMBERS, INCLUDING
EMPLOYEES OF THE FEDERAL GOVERNMENT AND OF VARIOUS STATES AND
MUNICIPALITIES; IT PROVIDED LIFE INSURANCE PROTECTION FOR ITS
MEMBERSHIP EXCEEDING $120,000,000; ITS ACTIVITIES HAVE BEEN THE SUBJECT
OF ADMINISTRATIVE AND JUDICIAL PROCEEDINGS IN ADDITION TO THOSE BEFORE
THE INSURANCE DEPARTMENTS OF THE STATES IN WHICH IT FUNCTIONS, AND, AS
A RESULT OF SUCH PROCEEDINGS, "THE PURPOSES AND ACTIVITIES OF THE ORDER
HAVE BEEN HELD TO BE FREE FROM ANY ILLEGAL OR IMPROPER TAINT  ...  "
FN9  AMONG THE ALLEGATIONS OF DAMAGE, MADE UPON INFORMATION AND BELIEF,
THE COMPLAINT STATES THAT, SOLELY AS A RESULT OF THE RESPONDENTS' ACTS,
THERE HAVE BEEN INSTITUTED AGAINST THE ORDER AND ITS MEMBERS A
MULTIPLICITY OF ADMINISTRATIVE PROCEEDINGS, INCLUDING THOSE TO RESCIND
LICENSES, FRANCHISES, OR TAX EXEMPTIONS, OR TO IMPEDE THE
NATURALIZATION OF ITS MEMBERS.  BECAUSE OF RESPONDENTS' ACTS, MANY SUCH
MEMBERS, ESPECIALLY PRESENT AND PROSPECTIVE CIVIL SERVANTS, HAVE
RESIGNED OR WITHDRAWN FROM MEMBERSHIP IN THE ORDER, AND MANY POTENTIAL
MEMBERS HAVE DECLINED TO JOIN IT.  FN10 

THE SECOND AMENDED COMPLAINT WAS DISMISSED BY THE DISTRICT COURT, 88
F.SUPP.  873.  THAT JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS, ONE
JUDGE DISSENTING.  86 U.S. APP. D.C. 287, 182 F.2D 368. 

IF, UPON THE ALLEGATIONS IN ANY OF THESE COMPLAINTS, IT HAD APPEARED
THAT THE ACTS OF THE RESPONDENTS, FROM WHICH RELIEF WAS SOUGHT, WERE
AUTHORIZED BY THE PRESIDENT UNDER HIS EXECUTIVE ORDER NO. 9835, THE
CASE WOULD HAVE BRISTLED WITH CONSTITUTIONAL ISSUES.  ON THAT BASIS THE
COMPLAINT WOULD HAVE RAISED QUESTIONS AS TO THE JUSTICIABILITY AND
MERIT OF CLAIMS BASED UPON THE FIRST, FIFTH, NINTH AND TENTH AMENDMENTS
TO THE CONSTITUTION.  IT IS OUR OBLIGATION, HOWEVER, NOT TO REACH THOSE
ISSUES UNLESS THE ALLEGATIONS BEFORE US SQUARELY PRESENT THEM.  SEE
UNITED STATES V. LOVETT, 328 U.S. 303, 320.  CF. UNITED PUBLIC WORKERS
V. MITCHELL, 330 U.S. 75; MYERS V. UNITED STATES, 272 U.S. 52. 

THE EXECUTIVE ORDER CONTAINS NO EXPRESS OR IMPLIED ATTEMPT TO CONFER
POWER ON ANYONE TO ACT ARBITRARILY OR CAPRICIOUSLY - EVEN ASSUMING A
CONSTITUTIONAL POWER TO DO SO.  THE ORDER INCLUDES IN THE PURPOSES OF
THE PRESIDENT'S PROGRAM NOT ONLY THE PROTECTION OF THE UNITED STATES
AGAINST DISLOYAL EMPLOYEES BUT THE "EQUAL PROTECTION" OF LOYAL
EMPLOYEES AGAINST UNFOUNDED ACCUSATIONS OF DISLOYALTY.  3 CFR, 1947
SUPP., P. 129, 12 FED. REG. 1935.  THE STANDARDS STATED FOR REFUSAL OF
AND REMOVAL FROM EMPLOYMENT REQUIRE THAT "ON ALL THE EVIDENCE,
REASONABLE GROUNDS (SHALL) EXIST FOR BELIEF THAT THE PERSON INVOLVED IS
DISLOYAL  ...  "  ID., AT 132, 12 FED. REG. 1938.  OBVIOUSLY IT WOULD
BE CONTRARY TO THE PURPOSE OF THAT ORDER TO PLACE ON A LIST TO BE
DISSEMINATED UNDER THE LOYALTY PROGRAM ANY DESIGNATION OF AN
ORGANIZATION THAT WAS PATENTLY ARBITRARY AND CONTRARY TO THE
UNCONTROVERTED MATERIAL FACTS.  THE ORDER CONTAINS THE EXPRESS
REQUIREMENT THAT EACH DESIGNATION OF AN ORGANIZATION BY THE ATTORNEY
GENERAL ON SUCH A LIST SHALL BE MADE ONLY AFTER AN "APPROPRIATE  ...
DETERMINATION" AS PRESCRIBED IN PART III, SEC. 3.  AN "APPROPRIATE"
GOVERNMENTAL "DETERMINATION" MUST BE THE RESULT OF A PROCESS OF
REASONING.  IT CANNOT BE AN ARBITRARY FIAT CONTRARY TO THE KNOWN
FACTS.  THIS IS INHERENT IN THE MEANING OF "DETERMINATION."  IT IS
IMPLICIT IN A GOVERNMENT OF LAWS AND NOT OF MEN.  WHERE AN ACT OF AN
OFFICIAL PLAINLY FALLS OUTSIDE OF THE SCOPE OF HIS AUTHORITY, HE DOES
NOT MAKE THAT ACT LEGAL BY DOING IT AND THEN INVOKING THE DOCTRINE OF
ADMINISTRATIVE CONSTRUCTION TO COVER IT. 

IT REMAINS, THEREFORE, FOR US TO DECIDE WHETHER, ON THE FACE OF THESE
COMPLAINTS, THE ATTORNEY GENERAL IS ACTING WITHIN HIS AUTHORITY IN
FURNISHING THE LOYALTY REVIEW BOARD WITH A DESIGNATION OF THE
COMPLAINING ORGANIZATIONS EITHER AS "COMMUNIST" OR AS WITHIN ANY OTHER
CLASSIFICATION OF PART III, SEC. 3, OF THE ORDER.  IN THE NATIONAL
COUNCIL AND INTERNATIONAL WORKERS CASES, THE COMPLAINING ORGANIZATION
IS ALLEGED NOT ONLY TO BE A CIVIC OR INSURANCE ORGANIZATION, APPARENTLY
ABOVE REPROACH FROM THE POINT OF VIEW OF LOYALTY TO THE UNITED STATES,
BUT IT IS ALSO DECLARED TO BE ONE THAT IS NOT WITHIN ANY CLASSIFICATION
LISTED IN PART III, SEC. 3, OF THE ORDER.  IN THE REFUGEE COMMITTEE
CASE, THE NEGATIVE ALLEGATIONS ARE OMITTED BUT THE AFFIRMATIVE
ALLEGATIONS ARE INCOMPATIBLE WITH THE INCLUSION OF THE COMPLAINING
ORGANIZATION WITHIN ANY OF THE DESIGNATED CLASSIFICATIONS.  THE
INCLUSION OF ANY OF THE COMPLAINING ORGANIZATIONS IN THE DESIGNATED
LIST SOLELY ON THE FACTS ALLEGED IN THE RESPECTIVE COMPLAINTS, WHICH
MUST BE THE BASIS FOR OUR DECISION HERE, IS THEREFORE AN ARBITRARY AND
UNAUTHORIZED ACT.  IN THE TWO CASES WHERE THE COMPLAINT SPECIFICALLY
ALLEGES THE FACTUAL ABSENCE OF ANY BASIS FOR THE DESIGNATION, AND THE
RESPONDENTS' MOTION ADMITS THAT ALLEGATION, THE DESIGNATION IS
NECESSARILY CONTRARY TO THE RECORD.  THE SITUATION IS COMPARABLE TO ONE
WHICH WOULD BE CREATED IF THE ATTORNEY GENERAL, UNDER LIKE
CIRCUMSTANCES, WERE TO DESIGNATE THE AMERICAN NATIONAL RED CROSS AS A
COMMUNIST ORGANIZATION.  ACCEPTING AS COMMON KNOWLEDGE THE CHARITABLE
AND LOYAL STATUS OF THAT ORGANIZATION, THERE IS NO DOUBT THAT, IN THE
ABSENCE OF ANY CONTRARY CLAIM ASSERTED AGAINST IT, THE EXECUTIVE ORDER
DOES NOT AUTHORIZE ITS INCLUSION BY THE ATTORNEY GENERAL AS A
"COMMUNIST" ORGANIZATION OR AS COMING WITHIN ANY OF THE OTHER
CLASSIFICATIONS NAMED IN PART III, SEC. 3, OF THE ORDER. 

SINCE WE FIND THAT THE CONDUCT ASCRIBED TO THE ATTORNEY GENERAL BY
THE COMPLAINTS IS PATENTLY ARBITRARY, THE DEFERENCE ORDINARILY DUE
ADMINISTRATIVE CONSTRUCTION OF AN ADMINISTRATIVE ORDER IS NOT
SUFFICIENT TO BRING HIS ALLEGED CONDUCT WITHIN THE AUTHORITY CONFERRED
BY EXECUTIVE ORDER NO. 9835.  THE DOCTRINE OF ADMINISTRATIVE
CONSTRUCTION NEVER HAS BEEN CARRIED SO FAR AS TO PERMIT ADMINISTRATIVE
DISCRETION TO RUN RIOT.  IF APPLIED TO THIS CASE AND COMPOUNDED WITH
THE ASSUMPTION THAT THE PRESIDENT'S EXECUTIVE ORDER WAS DRAFTED FOR HIM
BY HIS ATTORNEY GENERAL, THE CONCLUSION WOULD REST UPON THE PREMISE
THAT THE ATTORNEY GENERAL HAS ATTEMPTED TO DELEGATE TO HIMSELF THE
POWER TO ACT ARBITRARILY.  WE CANNOT IMPUTE SUCH AN ATTEMPT TO THE
NATION'S HIGHEST LAW ENFORCEMENT OFFICER ANY MORE THAN WE CAN TO ITS
PRESIDENT. 

IN THUS EMPHASIZING AN OUTER LIMIT TO WHAT CAN BE CONSIDERED AN
AUTHORIZED DESIGNATION OF AN ORGANIZATION UNDER THE ORDER, THE INSTANT
CASES SERVE A VALUABLE PURPOSE.  THEY DEMONSTRATE THAT THE ORDER DOES
NOT AUTHORIZE, MUCH LESS DIRECT, THE EXERCISE OF ANY SUCH ABSOLUTE
POWER AS WOULD PERMIT THE INCLUSION IN THE ATTORNEY GENERAL'S LIST OF A
DESIGNATION THAT IS PATENTLY ARBITRARY OR CONTRARY TO FACT.  FN11 

WHEN THE ACTS OF THE ATTORNEY GENERAL AND OF THE MEMBERS OF THE
LOYALTY REVIEW BOARD ARE STRIPPED OF THE PRESIDENTIAL AUTHORIZATION
CLAIMED FOR THEM BY THE RESPONDENTS, THEY STAND, ON THE FACE OF THESE
COMPLAINTS, AS UNAUTHORIZED PUBLICATIONS OF ADMITTEDLY UNFOUNDED
DESIGNATIONS OF THE COMPLAINING ORGANIZATIONS AS "COMMUNIST."  THEIR
EFFECT IS TO CRIPPLE THE FUNCTIONING AND DAMAGE THE REPUTATION OF THOSE
ORGANIZATIONS IN THEIR RESPECTIVE COMMUNITIES AND IN THE NATION.  THE
COMPLAINTS, ON THAT BASIS, SUFFICIENTLY CHARGE THAT SUCH ACTS VIOLATE
EACH COMPLAINING ORGANIZATION'S COMMON-LAW RIGHT TO BE FREE FROM
DEFAMATION.  "A COMMUNICATION IS DEFAMATORY IF IT TENDS SO TO HARM THE
REPUTATION OF ANOTHER AS TO LOWER HIM IN THE ESTIMATION OF THE
COMMUNITY OR TO DETER THIRD PERSONS FROM ASSOCIATING OR DEALING WITH
HIM."  RESTATEMENT, TORTS, SEC. 559.  FN12 

THESE COMPLAINTS DO NOT RAISE THE QUESTION OF THE PERSONAL LIABILITY
OF PUBLIC OFFICIALS FOR MONEY DAMAGES CAUSED BY THEIR ULTRA VIRES
ACTS.  SEE SPALDING V. VILAS, 161 U.S. 483.  THEY ASK ONLY FOR
DECLARATORY AND INJUNCTIVE RELIEF STRIKING THE NAMES OF THE DESIGNATED
ORGANIZATIONS FROM THE ATTORNEY GENERAL'S PUBLISHED LIST AND, AS FAR AS
PRACTICABLE, CORRECTING THE PUBLIC RECORDS. 

THE RESPONDENTS ARE NOT IMMUNE FROM SUCH A PROCEEDING.  ONLY
RECENTLY, THIS COURT RECOGNIZED THAT "THE ACTION OF AN OFFICER OF THE
SOVEREIGN (BE IT HOLDING, TAKING OR OTHERWISE LEGALLY AFFECTING THE
PLAINTIFF'S PROPERTY) CAN BE REGARDED AS SO 'ILLEGAL' AS TO PERMIT A
SUIT FOR SPECIFIC RELIEF AGAINST THE OFFICER AS AN INDIVIDUAL  ...  IF
IT IS NOT WITHIN THE OFFICER'S STATUTORY POWERS OR, IF WITHIN THOSE
POWERS  ...  IF THE POWERS, OR THEIR EXERCISE IN THE PARTICULAR CASE,
ARE CONSTITUTIONALLY VOID."  LARSON V. DOMESTIC AND FOREIGN COMMERCE
CORP., 337 U.S. 682, 701-702.  THE SAME IS TRUE HERE, WHERE THE ACTS
COMPLAINED OF ARE BEYOND THE OFFICER'S AUTHORITY UNDER THE EXECUTIVE
ORDER.  FN13 

FINALLY, THE STANDING OF THE PETITIONERS TO BRING THESE SUITS IS
CLEAR.  FN14 THE TOUCHSTONE TO JUSTICIABILITY IS INJURY TO A LEGALLY
PROTECTED RIGHT  FN15  AND THE RIGHT OF A BONA FIDE CHARITABLE
ORGANIZATION TO CARRY ON ITS WORK, FREE FROM DEFAMATORY STATEMENTS OF
THE KIND DISCUSSED, IS SUCH A RIGHT. 

IT IS UNREALISTIC TO CONTEND THAT BECAUSE THE RESPONDENTS GAVE NO
ORDERS DIRECTLY TO THE PETITIONERS TO CHANGE THEIR COURSE OF CONDUCT,
RELIEF CANNOT BE GRANTED AGAINST WHAT THE RESPONDENTS ACTUALLY DID.  WE
LONG HAVE GRANTED RELIEF TO PARTIES WHOSE LEGAL RIGHTS HAVE BEEN
VIOLATED BY UNLAWFUL PUBLIC ACTION, ALTHOUGH SUCH ACTION MADE NO DIRECT
DEMANDS UPON THEM.  COLUMBIA BROADCASTING SYSTEM V. UNITED STATES, 316
U.S. 407; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510; BUCHANAN V.
WARLEY, 245 U.S. 60; TRUAX V. RAICH, 239 U.S. 33.  FN16  THE COMPLAINTS
HERE AMPLY ALLEGE PAST AND IMPENDING SERIOUS DAMAGES CAUSED BY THE
ACTIONS OF WHICH THE PETITIONERS COMPLAIN. 

NOTHING WE HAVE SAID PURPORTS TO ADJUDICATE THE TRUTH OF PETITIONERS'
ALLEGATIONS THAT THEY ARE NOT IN FACT COMMUNISTIC.  WE HAVE ASSUMED
THAT THE DESIGNATIONS MADE BY THE ATTORNEY GENERAL ARE ARBITRARY
BECAUSE WE ARE COMPELLED TO MAKE THAT ASSUMPTION BY HIS MOTIONS TO
DISMISS THE COMPLAINTS.  WHETHER THE COMPLAINING ORGANIZATIONS ARE IN
FACT COMMUNISTIC OR WHETHER THE ATTORNEY GENERAL POSSESSES INFORMATION
FROM WHICH HE COULD REASONABLY FIND THEM TO BE SO MUST AWAIT
DETERMINATION BY THE DISTRICT COURT UPON REMAND. 

FOR THESE REASONS, WE FIND IT NECESSARY TO REVERSE THE JUDGMENTS OF
THE COURT OF APPEALS IN THE RESPECTIVE CASES AND TO REMAND EACH CASE TO
THE DISTRICT COURT WITH INSTRUCTIONS TO DENY THE RESPONDENTS' MOTION
THAT THE COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.  REVERSED AND REMANDED. 

FN1  E.G., SEC. 9A OF THE HATCH POLITICAL ACTIVITY ACT, AUGUST 2,
1939, 53 STAT. 1148, 5 U.S.C. (1946 ED., SUPP. III) SEC. 118J; SMITH
ACT, JUNE 28, 1940, 54 STAT. 670, NOW 18 U.S.C. (1946 ED., SUPP. III)
SECS. 2385, 2387; VOORHIS ANTI-PROPAGANDA ACT, OCTOBER 17, 1940, 54
STAT. 1201, NOW 18 U.S.C. (1946 ED., SUPP. III) SEC. 2386; MANY
APPROPRIATION ACT RIDERS BARRING THE USE OF FUNDS TO PAY "ANY PERSON
WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES,
THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR
VIOLENCE:  ...  " SUCH AS THAT AT 55 STAT. 42; EXEC. ORDER NO. 9300,
"ESTABLISHING THE INTERDEPARTMENTAL COMMITTEE TO CONSIDER CASES OF
SUBVERSIVE ACTIVITY ON THE PART OF FEDERAL EMPLOYEES," FEBRUARY 5,
1943, 3 CFR, 1943 CUM. SUPP., P. 1252, 8 FED. REG. 1701; AND EXEC.
ORDER NO. 9806, "ESTABLISHING THE PRESIDENT'S TEMPORARY COMMISSION ON
EMPLOYEE LOYALTY," NOVEMBER 25, 1946, 3 CFR, 1946 SUPP., P. 183, 11
FED. REG. 13863.  SEE ALSO, UNITED STATES V. LOVETT, 328 U.S. 303, 308
313.  A LATER EXPRESSION OF CONGRESSIONAL POLICY APPEARS IN TITLE I
(THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950) OF THE INTERNAL
SECURITY ACT OF 1950(THE MCCARRAN ACT) OF SEPTEMBER 23, 1950, 64 STAT.
987.  THIS REQUIRES ANY "COMMUNIST-ACTION ORGANIZATION" OR "COMMUNIST
FRONT ORGANIZATION" TO REGISTER WITH THE ATTORNEY GENERAL (SEC. 7) AND
PROVIDES FOR HEARINGS BEFORE A NEWLY CREATED "SUBVERSIVE ACTIVITIES
CONTROL BOARD" (SECS. 12, 13). 

FN2                           "PART V - STANDARDS 

"1.  THE STANDARD FOR THE REFUSAL OF EMPLOYMENT OR THE REMOVAL FROM
EMPLOYMENT IN AN EXECUTIVE DEPARTMENT OR AGENCY ON GROUNDS RELATING TO
LOYALTY SHALL BE THAT, ON ALL THE EVIDENCE, REASONABLE GROUNDS EXIST
FOR BELIEF THAT THE PERSON INVOLVED IS DISLOYAL TO THE GOVERNMENT OF
THE UNITED STATES. 

"2.  ACTIVITIES AND ASSOCIATIONS OF AN APPLICANT OR EMPLOYEE WHICH
MAY BE CONSIDERED IN CONNECTION WITH THE DETERMINATION OF DISLOYALTY
MAY INCLUDE ONE OR MORE OF THE FOLLOWING: 

     .         .     .         .         . 

"F.  MEMBERSHIP IN, AFFILIATION WITH OR SYMPATHETIC ASSOCIATION WITH
ANY FOREIGN OR DOMESTIC ORGANIZATION, ASSOCIATION, MOVEMENT, GROUP OR
COMBINATION OF PERSONS, DESIGNATED BY THE ATTORNEY GENERAL AS
TOTALITARIAN, FASCIST, COMMUNIST, OR SUBVERSIVE, OR AS HAVING ADOPTED A
POLICY OF ADVOCATING OR APPROVING THE COMMISSION OF ACTS OF FORCE OR
VIOLENCE TO DENY OTHER PERSONS THEIR RIGHTS UNDER THE CONSTITUTION OF
THE UNITED STATES, OR AS SEEKING TO ALTER THE FORM OF GOVERNMENT OF THE
UNITED STATES BY UNCONSTITUTIONAL MEANS."  3 CFR, 1947 SUPP., P. 132,
12 FED. REG. 1938. 

FN3  AS PUBLISHED IN THE FEDERAL REGISTER, MARCH 20, 1948, THE LIST
INCLUDES TWO GROUPS.  THE FIRST GROUP CONTAINS NONE OF THE PRESENT
COMPLAINANTS.  THE ATTORNEY GENERAL EXPLAINS THAT THAT GROUP "IS
REPORTED AS HAVING BEEN PREVIOUSLY NAMED AS SUBVERSIVE BY THE
DEPARTMENT OF JUSTICE AND AS HAVING BEEN PREVIOUSLY DISSEMINATED AMONG
THE GOVERNMENT AGENCIES FOR USE IN CONNECTION WITH CONSIDERATION OF
EMPLOYEE LOYALTY UNDER EXECUTIVE ORDER NO. 9300, ISSUED FEBRUARY 5,
1943  ...  " 13 FED. REG. 1473.  THE SECOND GROUP INCLUDES EACH OF THE
COMPLAINING ORGANIZATIONS.  THE ATTORNEY GENERAL LISTS THIS GROUP, WITH
THE FIRST, UNDER THE GENERAL HEADING "APPENDIX A - LIST OF
ORGANIZATIONS DESIGNATED BY THE ATTORNEY GENERAL PURSUANT TO EXECUTIVE
ORDER NO. 9835."  5 CFR, 1949, C. II, PT. 210, PP. 199-201, 13 FED.
REG. 1471, 1473.  HE THEN PLACES THE SECOND GROUP UNDER THE FOLLOWING
SUBHEADING:  "UNDER PART III, SECTION 3, OF EXECUTIVE ORDER NO. 9835,
THE FOLLOWING ADDITIONAL ORGANIZATIONS ARE DESIGNATED:  ...."  ID., AT
201, 13 FED. REG. 1473. 

FN4  13 FED. REG. 6137-6138.  THIS CLASSIFICATION WAS DISSEMINATED TO
ALL DEPARTMENTS AND AGENCIES SEPTEMBER 21, 1948, AND THE CLASSIFIED
LIST WAS PUBLISHED OCTOBER 21, 1948, AS AN AMENDMENT TO 5 CFR, 1949, C.
II, PT. 210, PP. 200-202, 203-205. 

FN5  THE SIX CLASSIFICATIONS WERE:  "TOTALITARIAN," "FASCIST,"
"COMMUNIST," "SUBVERSIVE," "ORGANIZATIONS WHICH HAVE 'ADOPTED A POLICY
OF ADVOCATING OR APPROVING THE COMMISSION OF ACTS OF FORCE AND VIOLENCE
TO DENY OTHERS THEIR RIGHTS UNDER THE CONSTITUTION OF THE UNITED
STATES,'" AND "ORGANIZATIONS WHICH 'SEEK TO ALTER THE FORM OF
GOVERNMENT OF THE UNITED STATES BY UNCONSTITUTIONAL MEANS.'"  5 CFR,
1949, C. II, PT. 210, PP. 203-205, 13 FED. REG. 6137-6138. 

THE ATTORNEY GENERAL ALSO EXPLAINED THAT - 

"APPLYING THE ELEMENTARY RULE OF STATUTORY CONSTRUCTION, EACH OF
THESE CLASSIFICATIONS MUST BE TAKEN TO BE INDEPENDENT AND MUTUALLY
EXCLUSIVE OF THE OTHERS.  IT MAY WELL BE THAT A DESIGNATED
ORGANIZATION, BY REASON OF ORIGIN, LEADERSHIP, CONTROL, PURPOSES,
POLICIES OR ACTIVITIES, ALONE OR IN COMBINATION, MAY FALL WITHIN MORE
THAN ONE OF THE SPECIFIED CLASSIFICATIONS.  IN SUCH CASES A REASONABLE
INTERPRETATION OF THE EXECUTIVE ORDER WOULD SEEM TO REQUIRE THAT
DESIGNATION BE PREDICATED UPON ITS DOMINANT CHARACTERISTICS RATHER THAN
EXTENDED TO INCLUDE ALL OTHER CLASSIFICATIONS POSSIBLE ON THE BASIS OF
WHAT MAY BE SUBORDINATE ATTRIBUTES OF THE GROUP.  IN CLASSIFYING THE
DESIGNATED ORGANIZATIONS THE ATTORNEY GENERAL HAS BEEN GUIDED BY THIS
POLICY.  ACCORDINGLY, IT SHOULD NOT BE ASSUMED THAT AN ORGANIZATION'S
DOMINANT CHARACTERISTIC IS ITS ONLY CHARACTERISTIC."  ID., AT 203, 13
FED. REG. 6137. 

FN6  THE COMPLAINT ADDS THAT - 

"BEFORE THE END OF THE WAR IN EUROPE, THIS RELIEF CONSISTED OF:  (1)
THE RELEASE AND ASSISTANCE OF THOSE OF THE AFORESAID REFUGEES WHO WERE
IN CONCENTRATION CAMPS IN VICHY FRANCE, NORTH AFRICA AND OTHER
COUNTRIES; (2) TRANSPORTATION AND ASYLUM FOR THOSE OF THE AFORESAID
REFUGEES IN FLIGHT; (3) DIRECT RELIEF AND AID, TO THOSE OF THE
AFORESAID REFUGEES REQUIRING HELP, THROUGH THE RED CROSS AND OTHER
INTERNATIONAL AGENCIES.  AT THE PRESENT TIME, THE JOINT ANTI-FASCIST
REFUGEE COMMITTEE RELIEF WORK IS PRINCIPALLY DEVOTED TO AIDING THOSE
SPANISH REPUBLICAN REFUGEES, AND OTHER ANTI-FASCIST REFUGEES WHO FOUGHT
AGAINST FRANCO, LOCATED IN FRANCE AND MEXICO." 

FN7  EXECUTIVE ORDER NO. 9835 PURPORTS TO REST, IN PART, UPON THE
AUTHORITY OF SEC. 9A OF THE HATCH ACT.  3 CFR, 1947 SUPP., P. 129, 12
FED. REG. 1935. 

FN8  IN THIS CASE, UNLIKE THE OTHERS, THE COMPLAINANT ASKED THAT A
THREE-JUDGE DISTRICT COURT BE CONVENED, PURSUANT TO 28 U.S.C. (1946
ED.)  SEC.  380A, NOW PART OF 28 U.S.C. (1946 ED., SUPP. III) SECS.
2281-2284.  THE DISTRICT COURT, HOWEVER, DISMISSED THE COMPLAINT
WITHOUT CONVENING SUCH A COURT. 

FN9  THE COMPLAINT ALSO ALLEGES IN PART IV: 

"8.  THE PURPOSE, OBJECTIVES AND ACTIVITIES OF THE ORDER ARE IN NO
SENSE SUBVERSIVE.  THE ORDER IS NOT AN ORGANIZATION WITHIN THE MEANING
OF PART III, SECTION 3 OF EXECUTIVE ORDER NO. 9835, AND IT HAS NOT
ADOPTED A POLICY OF ADVOCATING OR APPROVING THE COMMISSION OF ACTS OF
FORCE OR VIOLENCE, OR TO DENY OTHER PERSONS THE RIGHTS UNDER THE
CONSTITUTION OR AS SEEKING TO ALTER THE FORM OF GOVERNMENT BY
UNCONSTITUTIONAL MEANS, BUT ON THE CONTRARY, THE ORDER IS OPPOSED TO
THE COMMISSION OF ACTS OF FORCE OR VIOLENCE, FIGHTS AGAINST THE DENIAL
OF RIGHTS TO ANY PERSON, AND IS OPPOSED TO THE ALTERING OF OUR FORM OF
GOVERNMENT BY ANY ILLEGAL OR UNCONSTITUTIONAL MEANS.  THE ORDER IS
DEDICATED TO THE DEMOCRATIC IDEALS AND TRADITIONS OF THE UNITED STATES
AND THE PRINCIPLES OF FREEDOM AND EQUALITY EMBODIED IN THE
CONSTITUTION." 

FN10  THE COMPLAINT ATTACKS THE CONSTITUTIONALITY OF SEC. 9A OF THE
HATCH ACT BUT DOES NOT ASK FOR THE CONVENING OF A THREE-JUDGE DISTRICT
COURT. 

IN THIS CASE, A.L. DRAYTON, AS A MEMBER OF THE ORDER AND A CIVIL
EMPLOYEE OF THE UNITED STATES, SOUGHT PERMISSION FROM THE DISTRICT
COURT TO INTERVENE UNDER RULE 24(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE AND TO HAVE ADDED AS DEFENDANTS THREE MEMBERS OF THE LOYALTY
REVIEW BOARD OF THE POST OFFICE DEPARTMENT.  HIS MOTION WAS DENIED AND
HIS APPEAL FROM THAT DENIAL DISMISSED.  THE RESPONDENTS NOW ADVISE US
THAT, IN A SEPARATE PROCEEDING, HE APPEALED TO THE LOYALTY REVIEW BOARD
FROM A DECISION ADVERSE TO HIS LOYALTY, WITH THE RESULT THAT SUCH
DECISION HAS BEEN REVERSED AND THAT HE HAS RETURNED TO DUTY.  WHILE HE
HAS NOT WITHDRAWN HIS APPEAL FROM THE DENIAL OF HIS MOTION TO
INTERVENE, WE FIND NO REASON TO REVIEW THE DISCRETION EXERCISED BY THE
DISTRICT COURT IN DENYING THAT MOTION.  ALLEN CALCULATORS V. NATIONAL
CASH REGISTER CO., 322 U.S. 137; SEE 4 MOORE'S FEDERAL PRACTICE (2D ED.
1950) 62-64. 

FN11  THE DESIGNATION OF THESE ORGANIZATIONS WAS NOT PRECEDED BY ANY
ADMINISTRATIVE HEARING.  THE ORGANIZATIONS RECEIVED NO NOTICE THAT THEY
WERE TO BE LISTED, HAD NO OPPORTUNITY TO PRESENT EVIDENCE ON THEIR OWN
BEHALF AND WERE NOT INFORMED OF THE EVIDENCE ON WHICH THE DESIGNATIONS
REST.  SEE CHIN YOW V. UNITED STATES, 208 U.S. 8. 

WE HAVE NOTED THE FOLLOWING RECITALS MADE BY THE ATTORNEY GENERAL IN
DESCRIBING HIS STANDARD PROCEDURE IN THE PREPARATION OF HIS LISTS: 

"AFTER THE ISSUANCE OF EXECUTIVE ORDER NO. 9835 BY THE PRESIDENT, THE
DEPARTMENT OF JUSTICE COMPILED ALL AVAILABLE DATA WITH RESPECT TO THE
TYPE OF ORGANIZATION TO BE DEALT WITH UNDER THAT ORDER.  THE
INVESTIGATIVE REPORTS OF THE FEDERAL BUREAU OF INVESTIGATION CONCERNING
SUCH ORGANIZATIONS WERE CORRELATED.  MEMORANDA ON EACH SUCH
ORGANIZATION WERE PREPARED BY ATTORNEYS OF THE DEPARTMENT.  THE LIST OF
ORGANIZATIONS CONTAINED HEREIN HAS BEEN CERTIFIED TO THE BOARD BY THE
ATTORNEY GENERAL ON THE BASIS OF RECOMMENDATIONS OF ATTORNEYS OF THE
DEPARTMENT AS REVIEWED BY THE SOLICITOR GENERAL, THE ASSISTANT
ATTORNEYS GENERAL, AND THE ASSISTANT SOLICITOR GENERAL, AND SUBSEQUENT
CAREFUL STUDY OF ALL BY THE ATTORNEY GENERAL."  5 CFR, 1949, C. II, PT.
210, PP. 199-200, 13 FED. REG. 1471. 

THESE RECITALS, HOWEVER, RELATE TO THE MECHANICS USED RATHER THAN TO
THE APPROPRIATENESS OF THE DETERMINATION OR THE JUSTIFICATION FOR THE
RESPECTIVE DESIGNATIONS.  THEY FALL SHORT OF DISCLOSING THAT THERE HAS
BEEN SUCH AN ADMINISTRATIVE HEARING AS WOULD OFFSET THE ADMISSIONS OF
THE SPECIFIC ALLEGATIONS OF THE COMPLAINTS WHICH ARE INHERENT IN THE
RESPONDENTS' MOTIONS TO DISMISS.  SEE FED. RULES CIV. PROC., 12(B) AND
56(C), AND REAGAN V. FARMERS' LOAN & TRUST CO., 154 U.S. 362, 401-402. 

WE HAVE TREATED THE DESIGNATION OF AN ORGANIZATION BY THE ATTORNEY
GENERAL IN HIS LIST AS INCLUDING HIS FURNISHING OF THAT LIST TO THE
LOYALTY REVIEW BOARD WITH KNOWLEDGE OF THAT BOARD'S OBLIGATION TO
DISSEMINATE IT TO ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 

FN12  AS AN ILLUSTRATION OF THE MEANING OF SEC. 559, THE RESTATEMENT
SUGGESTS: 

"2.  A WRITES IN A LETTER TO B THAT C IS A MEMBER OF THE KU KLUX
KLAN.  B LIVES IN A COMMUNITY IN WHICH A SUBSTANTIAL NUMBER OF THE
CITIZENS REGARD THIS ORGANIZATION AS A DISCREDITABLE ONE.  A HAS
DEFAMED C." 

SEE ALSO, SPANEL V. PEGLER, 160 F.2D 619(C.A.7TH CIR.); WRIGHT V.
FARM JOURNAL, 158 F.2D 976(C.A.2D CIR.); GRANT V. READER'S DIGEST
ASSN., 151 F.2D 733(C.A.2D CIR.); MENCHER V. CHESLEY, 297 N.Y. 94, 75
N.E.2D 257; PROSSER, HANDBOOK OF THE LAW OF TORTS, SEC. 91; 171 A.L.R.
709-710, NOTE. 

FN13  WE DO NOT REACH EITHER THE VALIDITY OF THE EMPLOYEES LOYALTY
PROGRAM OR THE EFFECT OF THE RESPONDENTS' ACTS IN FURNISHING AND
DISSEMINATING A COMPARABLE LIST IN ANY INSTANCE WHERE SUCH ACTS ARE
WITHIN THE AUTHORITY PURPORTEDLY GRANTED BY THE EXECUTIVE ORDER.  CF.
CARTER V. CARTER COAL CO., 298 U.S. 238, 289-292; UNITED STATES V.
BUTLER, 297 U.S. 1, 68-78; LINDER V. UNITED STATES, 268 U.S. 5, 17;
M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 423. 

FN14  RULE 17(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE GIVES
UNINCORPORATED ASSOCIATIONS THE RIGHT TO SUE IN THEIR OWN NAMES FOR THE
ENFORCEMENT OF RIGHTS EXISTING UNDER THE CONSTITUTION OR LAWS OF THE
UNITED STATES.  AND SEE RESTATEMENT, TORTS, SEC. 561(2) AND COMMENT B
THEREON.  SEE ALSO, N.Y. SOCIETY FOR SUPPRESSION OF VICE V. MCFADDEN
PUBLICATIONS, 260 N.Y. 167, 183 N.E. 284; CF. PULLMAN CO. V. LOCAL
UNION NO. 2928, 152 F.2D 493(C.A.7TH CIR.). 

FN15  UTAH FUEL CO. V. NATIONAL BITUMINOUS COAL COMM'N, 306 U.S. 56;
SHIELDS V. UTAH IDAHO CENTRAL R. CO., 305 U.S. 177; PHILADELPHIA CO. V.
STIMSON, 223 U.S. 605. 

FN16  UNITED STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299, 309
310, DOES NOT PRESCRIBE A CONTRARY COURSE.  IN THAT CASE WE HELD THAT
THE INTERSTATE COMMERCE COMMISSION ORDER FIXING A RATE BASE COULD NOT
BE ATTACKED BY A BILL IN EQUITY WHEN THE BASE COULD BE CHALLENGED IN
SUBSEQUENT PROCEEDINGS FIXING THE RATE.  NO COMPARABLE ALTERNATIVE
RELIEF IS AVAILABLE HERE. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
ANY OF THESE CASES. 

MR. JUSTICE BLACK, CONCURRING. 

WITHOUT NOTICE OR HEARING AND UNDER COLOR OF THE PRESIDENT'S
EXECUTIVE ORDER NO. 9835, THE ATTORNEY GENERAL FOUND PETITIONERS GUILTY
OF HARBORING TREASONABLE OPINIONS AND DESIGNS, OFFICIALLY BRANDED THEM
AS COMMUNISTS, AND PROMULGATED HIS FINDINGS AND CONCLUSIONS FOR
PARTICULAR USE AS EVIDENCE AGAINST GOVERNMENT EMPLOYEES SUSPECTED OF
DISLOYALTY.  IN THE PRESENT CLIMATE OF PUBLIC OPINION IT APPEARS
CERTAIN THAT THE ATTORNEY GENERAL'S MUCH PUBLICIZED FINDINGS,
REGARDLESS OF THEIR TRUTH OR FALSITY, ARE THE PRACTICAL EQUIVALENTS OF
CONFISCATION AND DEATH SENTENCES FOR ANY BLACKLISTED ORGANIZATION NOT
POSSESSING EXTRAORDINARY FINANCIAL, POLITICAL OR RELIGIOUS PRESTIGE AND
INFLUENCE.  THE GOVERNMENT NOT ONLY DEFENDS THE POWER OF THE ATTORNEY
GENERAL TO PRONOUNCE SUCH DEADLY EDICTS BUT ALSO ARGUES THAT
INDIVIDUALS OR GROUPS SO CONDEMNED HAVE NO STANDING TO SEEK REDRESS IN
THE COURTS, EVEN THOUGH A FAIR JUDICIAL HEARING MIGHT CONCLUSIVELY
DEMONSTRATE THEIR LOYALTY.  MY BASIC REASONS FOR REJECTING THESE AND
OTHER CONTENTIONS OF THE GOVERNMENT ARE IN SUMMARY THE FOLLOWING: 

(1)  I AGREE WITH MR. JUSTICE BURTON THAT PETITIONERS HAVE STANDING
TO SUE FOR THE REASON AMONG OTHERS THAT THEY HAVE A RIGHT TO CONDUCT
THEIR ADMITTEDLY LEGITIMATE POLITICAL, CHARITABLE AND BUSINESS
OPERATIONS FREE FROM UNJUSTIFIED GOVERNMENTAL DEFAMATION.  OTHERWISE,
EXECUTIVE OFFICERS COULD ACT LAWLESSLY WITH IMPUNITY.  AND, ASSUMING
THAT THE PRESIDENT MAY CONSTITUTIONALLY AUTHORIZE THE PROMULGATION OF
THE ATTORNEY GENERAL'S LIST, I FURTHER AGREE WITH MR. JUSTICE BURTON
THAT THIS COURT SHOULD NOT ATTRIBUTE TO THE PRESIDENT A PURPOSE TO VEST
IN A CABINET OFFICER THE POWER TO DESTROY POLITICAL, SOCIAL, RELIGIOUS
OR BUSINESS ORGANIZATIONS BY "ARBITRARY FIAT," AND THUS THE METHODS
EMPLOYED BY THE ATTORNEY GENERAL EXCEED HIS AUTHORITY UNDER EXECUTIVE
ORDER NO. 9835. 

(2)  ASSUMING, THOUGH I DENY, THAT THE CONSTITUTION PERMITS THE
EXECUTIVE OFFICIALLY TO DETERMINE, LIST AND PUBLICIZE INDIVIDUALS AND
GROUPS AS TRAITORS AND PUBLIC ENEMIES, I AGREE WITH MR. JUSTICE
FRANKFURTER THAT THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT WOULD
BAR SUCH CONDEMNATION WITHOUT NOTICE AND A FAIR HEARING.  MY VIEWS
PREVIOUSLY EXPRESSED UNDER SIMILAR CIRCUMSTANCES ARE RELEVANT HERE. 
E.G., DISSENTING OPINION IN LUDECKE V. WATKINS, 335 U.S. 160, 173; AND
SEE IN RE OLIVER, 333 U.S. 257. 

(3)  MORE FUNDAMENTALLY, HOWEVER, IN MY JUDGMENT THE EXECUTIVE HAS NO
CONSTITUTIONAL AUTHORITY, WITH OR WITHOUT A HEARING, OFFICIALLY TO
PREPARE AND PUBLISH THE LISTS CHALLENGED BY PETITIONERS.  IN THE FIRST
PLACE, THE SYSTEM ADOPTED EFFECTIVELY PUNISHES MANY ORGANIZATIONS AND
THEIR MEMBERS MERELY BECAUSE OF THEIR POLITICAL BELIEFS AND UTTERANCES,
AND TO THIS EXTENT SMACKS OF A MOST EVIL TYPE OF CENSORSHIP.  THIS
CANNOT BE RECONCILED WITH THE FIRST AMENDMENT AS I INTERPRET IT.  SEE
MY DISSENT IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382,
445.  MOREOVER, OFFICIALLY PREPARED AND PROCLAIMED GOVERNMENTAL
BLACKLISTS POSSESS ALMOST EVERY QUALITY OF BILLS OF ATTAINDER, THE USE
OF WHICH WAS FROM THE BEGINNING FORBIDDEN TO BOTH NATIONAL AND STATE
GOVERNMENTS.  U.S. CONST., ART. I, SECS. 9, 10.  IT IS TRUE THAT THE
CLASSIC BILL OF ATTAINDER WAS A CONDEMNATION BY THE LEGISLATURE
FOLLOWING INVESTIGATION BY THAT BODY, SEE UNITED STATES V. LOVETT, 328
U.S. 303, WHILE IN THE PRESENT CASE THE ATTORNEY GENERAL PERFORMED THE
OFFICIAL TASKS.  BUT I CANNOT BELIEVE THAT THE AUTHORS OF THE
CONSTITUTION, WHO OUT-LAWED THE BILL OF ATTAINDER, INADVERTENTLY
ENDOWED THE EXECUTIVE WITH POWER TO ENGAGE IN THE SAME TYRANNICAL
PRACTICES THAT HAD MADE THE BILL SUCH AN ODIOUS INSTITUTION.  FN1 

THERE IS ARGUMENT THAT EXECUTIVE POWER TO ISSUE THESE PSEUDO-BILLS OF
ATTAINDER CAN BE IMPLIED FROM THE UNDOUBTED POWER OF THE GOVERNMENT TO
HIRE AND DISCHARGE EMPLOYEES AND TO PROTECT ITSELF AGAINST TREASONABLE
INDIVIDUALS OR ORGANIZATIONS.  FN2  OUR BASIC LAW, HOWEVER, WISELY
WITHHELD AUTHORITY FOR RESORT TO EXECUTIVE INVESTIGATIONS,
CONDEMNATIONS AND BLACKLISTS AS A SUBSTITUTE FOR IMPOSITION OF LEGAL
TYPES OF PENALTIES BY COURTS FOLLOWING TRIAL AND CONVICTION IN
ACCORDANCE WITH PROCEDURAL SAFEGUARDS OF THE BILL OF RIGHTS.  FN3    IN
THIS DAY WHEN PREJUDICE, HATE AND FEAR ARE CONSTANTLY INVOKED TO
JUSTIFY IRRESPONSIBLE SMEARS AND PERSECUTION OF PERSONS EVEN FAINTLY
SUSPECTED OF ENTERTAINING UNPOPULAR VIEWS, IT MAY BE FUTILE TO SUGGEST
THAT THE CAUSE OF INTERNAL SECURITY WOULD BE FOSTERED, NOT HURT, BY
FAITHFUL ADHERENCE TO OUR CONSTITUTIONAL GUARANTEES OF INDIVIDUAL
LIBERTY.  NEVERTHELESS, SINCE PREJUDICE MANIFESTS ITSELF IN MUCH THE
SAME WAY IN EVERY AGE AND COUNTRY AND SINCE WHAT HAS HAPPENED BEFORE
CAN HAPPEN AGAIN, IT SURELY SHOULD NOT BE AMISS TO CALL ATTENTION TO
WHAT HAS OCCURRED WHEN DOMINANT GOVERNMENTAL GROUPS HAVE BEEN LEFT FREE
TO GIVE UNCONTROLLED REIN TO THEIR PREJUDICES AGAINST UNORTHODOX
MINORITIES.  AS SPECIFIC ILLUSTRATION, I AM ADDING AS AN APPENDIX
MACAULAY'S ACCOUNT OF A PARLIAMENTARY PROSCRIPTION WHICH TOOK PLACE
WHEN POPULAR PREJUDICE WAS HIGH; THIS IS ONLY ONE OUT OF MANY SIMILAR
INSTANCES THAT READILY CAN BE FOUND.  FN4  MEMORIES OF SUCH EVENTS WERE
FRESH IN THE MINDS OF THE FOUNDERS WHEN THEY FORBADE THE USE OF THE
BILL OF ATTAINDER. 

APPENDIX TO OPINION OF MR. JUSTICE BLACK. 

JAMES II, THE LAST STUART KING OF ENGLAND, WAS DRIVEN FROM HIS THRONE
IN 1688 BY WILLIAM OF ORANGE.  AFTER A BRIEF SOJOURN AT SAINT GERMAINS
IN FRANCE, JAMES LANDED IN IRELAND WHERE HE WAS SUPPORTED BY THOSE
IRISH CATHOLICS WHO HAD SUFFERED GREATLY AT THE HANDS OF THE ENGLISH
PROTESTANT COLONISTS.  ONE OF HIS FIRST OFFICIAL ACTS WAS TO CALL AN
IRISH PARLIAMENT WHICH ENACTED THE BILL OF ATTAINDER DESCRIBED BY THE
HISTORIAN MACAULAY AS FOLLOWS: 

"  ...  (THE COMMONS) RESPECTED NO PREROGATIVE, HOWEVER ANCIENT,
HOWEVER LEGITIMATE, HOWEVER SALUTARY, IF THEY APPREHENDED THAT (JAMES
II) MIGHT USE IT TO PROTECT THE RACE WHICH THEY ABHORRED.  THEY WERE
NOT SATISFIED TILL THEY HAD EXTORTED HIS RELUCTANT CONSENT TO A
PORTENTOUS LAW, A LAW WITHOUT A PARALLEL IN THE HISTORY OF CIVILISED
COUNTRIES, THE GREAT ACT OF ATTAINDER. 

"A LIST WAS FRAMED CONTAINING BETWEEN TWO AND THREE THOUSAND NAMES. 
AT THE TOP WAS HALF THE PEERAGE OF IRELAND.  THEN CAME BARONETS,
KNIGHTS, CLERGYMEN, SQUIRES, MERCHANTS, YEOMEN, ARTISANS, WOMEN,
CHILDREN.  NO INVESTIGATION WAS MADE.  ANY MEMBER WHO WISHED TO RID
HIMSELF OF A CREDITOR, A RIVAL, A PRIVATE ENEMY, GAVE IN THE NAME TO
THE CLERK AT THE TABLE, AND IT WAS GENERALLY INSERTED WITHOUT
DISCUSSION.  THE ONLY DEBATE OF WHICH ANY ACCOUNT HAS COME DOWN TO US
RELATED TO THE EARL OF STRAFFORD.  HE HAD FRIENDS IN THE HOUSE WHO
VENTURED TO OFFER SOMETHING IN HIS FAVOUR.  BUT A FEW WORDS FROM SIMON
LUTTRELL SETTLED THE QUESTION.  'I HAVE,' HE SAID, 'HEARD THE KING SAY
SOME HARD THINGS OF THAT LORD.'  THIS WAS THOUGHT SUFFICIENT, AND THE
NAME OF STRAFFORD STANDS FIFTH IN THE LONG TABLE OF THE PROSCRIBED. 

"DAYS WERE FIXED BEFORE WHICH THOSE WHOSE NAMES WERE ON THE LIST WERE
REQUIRED TO SURRENDER THEMSELVES TO SUCH JUSTICE AS WAS THEN
ADMINISTERED TO ENGLISH PROTESTANTS IN DUBLIN.  IF A PROSCRIBED PERSON
WAS IN IRELAND, HE MUST SURRENDER HIMSELF BY THE TENTH OF AUGUST.  IF
HE HAD LEFT IRELAND SINCE THE FIFTH OF NOVEMBER 1688, HE MUST SURRENDER
HIMSELF BY THE FIRST OF SEPTEMBER.  IF HE HAD LEFT IRELAND BEFORE THE
FIFTH OF NOVEMBER 1688, HE MUST SURRENDER HIMSELF BY THE FIRST OF
OCTOBER.  IF HE FAILED TO APPEAR BY THE APPOINTED DAY, HE WAS TO BE
HANGED, DRAWN, AND QUARTERED WITHOUT A TRIAL, AND HIS PROPERTY WAS TO
BE CONFISCATED.  IT MIGHT BE PHYSICALLY IMPOSSIBLE FOR HIM TO DELIVER
HIMSELF UP WITHIN THE TIME FIXED BY THE ACT.  HE MIGHT BE BEDRIDDEN. 
HE MIGHT BE IN THE WEST INDIES.  HE MIGHT BE IN PRISON.  INDEED THERE
NOTORIOUSLY WERE SUCH CASES.  AMONG THE ATTAINTED LORDS WAS MOUNTJOY. 
HE HAD BEEN INDUCED BY THE VILLANY OF TYRCONNEL TO TRUST HIMSELF AT
SAINT GERMAINS:  HE HAD BEEN THROWN INTO THE BASTILE:  HE WAS STILL
LYING THERE; AND THE IRISH PARLIAMENT WAS NOT ASHAMED TO ENACT THAT,
UNLESS HE COULD, WITHIN A FEW WEEKS, MAKE HIS ESCAPE FROM HIS CELL, AND
PRESENT HIMSELF AT DUBLIN, HE SHOULD BE PUT TO DEATH. 

"AS IT WAS NOT EVEN PRETENDED THAT THERE HAD BEEN ANY INQUIRY INTO
THE GUILT OF THOSE WHO WERE THUS PROSCRIBED, AS NOT A SINGLE ONE AMONG
THEM HAD BEEN HEARD IN HIS OWN DEFENCE, AND AS IT WAS CERTAIN THAT IT
WOULD BE PHYSICALLY IMPOSSIBLE FOR MANY OF THEM TO SURRENDER THEMSELVES
IN TIME, IT WAS CLEAR THAT NOTHING BUT A LARGE EXERCISE OF THE ROYAL
PREROGATIVE OF MERCY COULD PREVENT THE PERPETRATION OF INIQUITIES SO
HORRIBLE THAT NO PRECEDENT COULD BE FOUND FOR THEM EVEN IN THE
LAMENTABLE HISTORY OF THE TROUBLES OF IRELAND.  THE COMMONS THEREFORE
DETERMINED THAT THE ROYAL PREROGATIVE OF MERCY SHOULD BE LIMITED. 
SEVERAL REGULATIONS WERE DEVISED FOR THE PURPOSE OF MAKING THE PASSING
OF PARDONS DIFFICULT AND COSTLY:  AND FINALLY IT WAS ENACTED THAT EVERY
PARDON GRANTED BY HIS MAJESTY, AFTER THE END OF NOVEMBER 1689, TO ANY
OF THE MANY HUNDREDS OF PERSONS WHO HAD BEEN SENTENCED TO DEATH WITHOUT
A TRIAL, SHOULD BE ABSOLUTELY VOID AND OF NONE EFFECT.  SIR RICHARD
NAGLE CAME IN STATE TO THE BAR OF THE LORDS AND PRESENTED THE BILL WITH
A SPEECH WORTHY OF THE OCCASION.  'MANY OF THE PERSONS HERE ATTAINTED,'
SAID HE, 'HAVE BEEN PROVED TRAITORS BY SUCH EVIDENCE AS SATISFIES US.
AS TO THE REST WE HAVE FOLLOWED COMMON FAME.' 

"WITH SUCH RECKLESS BARBARITY WAS THE LIST FRAMED THAT FANATICAL
ROYALISTS, WHO WERE, AT THAT VERY TIME, HAZARDING THEIR PROPERTY, THEIR
LIBERTY, THEIR LIVES, IN THE CAUSE OF JAMES, WERE NOT SECURE FROM
PROSCRIPTION.  THE MOST LEARNED MAN OF WHOM THE JACOBITE PARTY COULD
BOAST WAS HENRY DODWELL, CAMDENIAN PROFESSOR IN THE UNIVERSITY OF
OXFORD.  IN THE CAUSE OF HEREDITARY MONARCHY HE SHRANK FROM NO
SACRIFICE AND FROM NO DANGER.  IT WAS ABOUT HIM THAT WILLIAM (OF
ORANGE) UTTERED THOSE MEMORABLE WORDS:  'HE HAS SET HIS HEART ON BEING
A MARTYR; AND I HAVE SET MINE ON DISAPPOINTING HIM.'  BUT JAMES WAS
MORE CRUEL TO FRIENDS THAN WILLIAM TO FOES.  DODWELL WAS A PROTESTANT:
HE HAD SOME PROPERTY IN CONNAUGHT:  THESE CRIMES WERE SUFFICIENT; AND
HE WAS SET DOWN IN THE LONG ROLL OF THOSE WHO WERE DOOMED TO THE
GALLOWS AND THE QUARTERING BLOCK. 

"THAT JAMES WOULD GIVE HIS ASSENT TO A BILL WHICH TOOK FROM HIM THE
POWER OF PARDONING, SEEMED TO MANY PERSONS IMPOSSIBLE.  ...  HE MIGHT
ALSO HAVE SEEN THAT THE RIGHT COURSE WAS THE WISE COURSE.  HAD HE, ON
THIS GREAT OCCASION, HAD THE SPIRIT TO DECLARE THAT HE WOULD NOT SHED
THE BLOOD OF THE INNOCENT, AND THAT, EVEN AS RESPECTED THE GUILTY, HE
WOULD NOT DIVEST HIMSELF OF THE POWER OF TEMPERING JUDGMENT WITH MERCY,
HE WOULD HAVE REGAINED MORE HEARTS IN ENGLAND THAN HE WOULD HAVE LOST
IN IRELAND.  BUT IT WAS EVER HIS FATE TO RESIST WHERE HE SHOULD HAVE
YIELDED, AND TO YIELD WHERE HE SHOULD HAVE RESISTED.  THE MOST WICKED
OF ALL LAWS RECEIVED HIS SANCTION; AND IT IS BUT A VERY SMALL
EXTENUATION OF HIS GUILT THAT HIS SANCTION WAS SOMEWHAT RELUCTANTLY
GIVEN. 

"THAT NOTHING MIGHT BE WANTING TO THE COMPLETENESS OF THIS GREAT
CRIME, EXTREME CARE WAS TAKEN TO PREVENT THE PERSONS WHO WERE ATTAINTED
FROM KNOWING THAT THEY WERE ATTAINTED, TILL THE DAY OF GRACE FIXED IN
THE ACT WAS PASSED.  THE ROLL OF NAMES WAS NOT PUBLISHED, BUT KEPT
CAREFULLY LOCKED UP IN FITTON'S CLOSET.  SOME PROTESTANTS, WHO STILL
ADHERED TO THE CAUSE OF JAMES, BUT WHO WERE ANXIOUS TO KNOW WHETHER ANY
OF THEIR FRIENDS OR RELATIONS HAD BEEN PROSCRIBED, TRIED HARD TO OBTAIN
A SIGHT OF THE LIST; BUT SOLICITATION, REMONSTRANCE, EVEN BRIBERY,
PROVED VAIN.  NOT A SINGLE COPY GOT ABROAD TILL IT WAS TOO LATE FOR ANY
OF THE THOUSANDS WHO HAD BEEN CONDEMNED WITHOUT A TRIAL TO OBTAIN A
PARDON. 

"  ...  THAT THE COLONISTS, WHEN THEY HAD WON THE VICTORY, GROSSLY
ABUSED IT, THAT THEIR LEGISLATION WAS, DURING MANY YEARS, UNJUST AND
TYRANNICAL, IS MOST TRUE.  BUT IT IS NOT LESS TRUE THAT THEY NEVER
QUITE CAME UP TO THE ATROCIOUS EXAMPLE SET BY THEIR VANQUISHED ENEMY
DURING HIS SHORT TENURE OF POWER." 

3 MACAULAY, HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES THE SECOND
(LONDON, 1855), 216-220.  (FOOTNOTES APPEARING IN THE ORIGINAL HAVE
BEEN OMITTED.) 

FN1  IN NOVEMBER 1794, THERE WAS INTRODUCED IN CONGRESS A RESOLUTION
OF PUBLIC DISAPPROVAL OF CERTAIN "SELF-CREATED DEMOCRATIC SOCIETIES"
THOUGHT TO BE RESPONSIBLE FOR STIRRING UP THE PEOPLE TO INSURRECTION. 
MADISON OPPOSED THE RESOLUTION, APPARENTLY BELIEVING THAT IF IT WERE
ENACTED IT WOULD BE A BILL OF ATTAINDER.  HIS VIEWS IN THIS REGARD ARE
REPORTED AS FOLLOWS:  "IT IS IN VAIN TO SAY THAT THIS INDISCRIMINATE
CENSURE IS NO PUNISHMENT.  IF IT FALLS ON CLASSES, OR INDIVIDUALS, IT
WILL BE A SEVERE PUNISHMENT.  ...  IS NOT THIS PROPOSITION, IF VOTED, A
VOTE OF ATTAINDER?"  4 ANNALS OF CONG. 934(1794). 

FN2  BUT COMPARE MADISON IN FEDERALIST PAPER NO. 42:  "AS TREASON MAY
BE COMMITTED AGAINST THE UNITED STATES, THE AUTHORITY OF THE UNITED
STATES OUGHT TO BE ENABLED TO PUNISH IT.  BUT AS NEW-FANGLED AND
ARTIFICIAL TREASONS HAVE BEEN THE GREAT ENGINES BY WHICH VIOLENT
FACTIONS, THE NATURAL OFFSPRING OF FREE GOVERNMENTS, HAVE USUALLY
WREAKED THEIR ALTERNATE MALIGNITY ON EACH OTHER, THE CONVENTION HAVE,
WITH GREAT JUDGMENT, OPPOSED A BARRIER TO THIS PECULIAR DANGER, BY
INSERTING A CONSTITUTIONAL DEFINITION OF THE CRIME, FIXING THE PROOF
NECESSARY FOR CONVICTION OF IT, AND RESTRAINING THE CONGRESS, EVEN IN
PUNISHING IT, FROM EXTENDING THE CONSEQUENCES OF GUILT BEYOND THE
PERSON OF ITS AUTHOR." 

FN3  ONE PURPOSE OF THE ATTORNEY GENERAL'S BLACKLIST UNDER EXECUTIVE
ORDER 9835 IS FOR USE AS EVIDENCE AGAINST GOVERNMENT EMPLOYEES TRIED
FOR DISLOYALTY BEFORE LOYALTY BOARDS ACTING UNDER THE SAME EXECUTIVE
ORDER.  PROOF OF MEMBERSHIP IN A BLACKLISTED ORGANIZATION, OR OF
ASSOCIATION WITH ITS MEMBERS, CAN WEIGH HEAVILY AGAINST A GOVERNMENT
EMPLOYEE'S LOYALTY.  THUS AN EMPLOYEE MAY LOSE HIS JOB BECAUSE OF THE
ATTORNEY GENERAL'S SECRET AND EX PARTE ACTION.  THIS IS WELL
ILLUSTRATED IN THE CASE OF BAILEY V. RICHARDSON, 341 U.S. 918, DECIDED
TODAY BY AN EQUALLY DIVIDED COURT.  THE LOYALTY BOARD'S FINDING AGAINST
MISS BAILEY APPEARS TO HAVE RESTED IN PART ON HER SUPPOSED ASSOCIATION
WITH SUCH ORGANIZATIONS AND IN PART ON SECRET UNSWORN HEARSAY
STATEMENTS COMMUNICATED TO THE BOARD BY ANONYMOUS INFORMERS.  JUDGE
EDGERTON'S DISSENTING OPINION DEMONSTRATES HOW THE ENTIRE LOYALTY
PROGRAM GROSSLY DEPRIVES GOVERNMENT EMPLOYEES OF THE BENEFITS OF
CONSTITUTIONAL SAFEGUARDS.  BAILEY V. RICHARDSON, 86 U.S. APP. D.C.
248, 182 F.2D 46, 66. 

FN4  THE APPENDIX IS AN ILLUSTRATION OF PERSECUTION OF PROTESTANTS BY
CATHOLICS.  FOR INSTANCES OF PERSECUTION OF CATHOLICS BY PROTESTANTS,
SEE MY DISSENTING OPINION IN AMERICAN COMMUNICATIONS ASSN. V. DOUDS,
339 U.S. 382, 445, PARTICULARLY NOTES 3, 4 AND 7. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE MORE ISSUES OF LAW ARE INESCAPABLY ENTANGLED IN POLITICAL
CONTROVERSIES, ESPECIALLY THOSE THAT TOUCH THE PASSIONS OF THE DAY, THE
MORE THE COURT IS UNDER DUTY TO DISPOSE OF A CONTROVERSY WITHIN THE
NARROWEST CONFINES THAT INTELLECTUAL INTEGRITY PERMITS.  AND SO I
SYMPATHIZE WITH THE ENDEAVOR OF MY BROTHER BURTON TO DECIDE THESE CASES
ON A GROUND AS LIMITED AS THAT WHICH HAS COMMENDED ITSELF TO HIM. 
UNFORTUNATELY, I AM UNABLE TO READ THE PLEADINGS AS HE DOES.  THEREFORE
I MUST FACE UP TO LARGER ISSUES.  BUT IN A CASE RAISING DELICATE
CONSTITUTIONAL QUESTIONS IT IS PARTICULARLY INCUMBENT FIRST TO SATISFY
THE THRESHOLD INQUIRY WHETHER WE HAVE ANY BUSINESS TO DECIDE THE CASE
AT ALL.  IS THERE, IN SHORT, A LITIGANT BEFORE US WHO HAS A CLAIM
PRESENTED IN A FORM AND UNDER CONDITIONS "APPROPRIATE FOR JUDICIAL
DETERMINATION"?  AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240. 

                        I. 

LIMITATION ON "THE JUDICIAL POWER OF THE UNITED STATES" IS EXPRESSED
BY THE REQUIREMENT THAT A LITIGANT MUST HAVE "STANDING TO SUE" OR, MORE
COMPREHENSIVELY, THAT A FEDERAL COURT MAY ENTERTAIN A CONTROVERSY ONLY
IF IT IS "JUSTICIABLE."  BOTH CHARACTERIZATIONS MEAN THAT A COURT WILL
NOT DECIDE A QUESTION UNLESS THE NATURE OF THE ACTION CHALLENGED, THE
KIND OF INJURY INFLICTED, AND THE RELATIONSHIP BETWEEN THE PARTIES ARE
SUCH THAT JUDICIAL DETERMINATION IS CONSONANT WITH WHAT WAS, GENERALLY
SPEAKING, THE BUSINESS OF THE COLONIAL COURTS AND THE COURTS OF
WESTMINSTER WHEN THE CONSTITUTION WAS FRAMED.  THE JURISDICTION OF THE
FEDERAL COURTS CAN BE INVOKED ONLY UNDER CIRCUMSTANCES WHICH TO THE
EXPERT FEEL OF LAWYERS CONSTITUTE A "CASE OR CONTROVERSY."  THE SCOPE
AND CONSEQUENCES OF THE REVIEW WITH WHICH THE JUDICIARY IS ENTRUSTED
OVER EXECUTIVE AND LEGISLATIVE ACTION REQUIRE US TO OBSERVE THESE
BOUNDS FASTIDIOUSLY.  (SEE THE COURSE OF DECISIONS BEGINNING WITH
HAYBURN'S CASE, 2 DALL.  409, THROUGH PARKER V. LOS ANGELES COUNTY, 338
U.S. 327.)  THESE GENERALITIES HAVE HAD MYRIAD APPLICATIONS.  EACH
APPLICATION, EVEN TO A SITUATION NOT DIRECTLY PERTINENT TO WHAT IS
BEFORE US, REFLECTS CONSIDERATIONS RELEVANT TO DECISION HERE.  I SHALL
CONFINE MY INQUIRY, HOWEVER, BY LIMITING IT TO SUITS SEEKING RELIEF
FROM GOVERNMENTAL ACTION. 

(1)  THE SIMPLEST APPLICATION OF THE CONCEPT OF "STANDING" IS TO
SITUATIONS IN WHICH THERE IS NO REAL CONTROVERSY BETWEEN THE PARTIES. 
REGARD FOR THE SEPARATION OF POWERS, SEE MUSKRAT V. UNITED STATES, 219
U.S. 346, AND FOR THE IMPORTANCE TO CORRECT DECISION OF ADEQUATE
PRESENTATION OF ISSUES BY CLASHING INTERESTS, SEE CHICAGO & G.T.R. CO.
V. WELLMAN, 143 U.S. 339, RESTRICTS THE COURTS OF THE UNITED STATES TO
ISSUES PRESENTED IN AN ADVERSARY MANNER.  A PETITIONER DOES NOT HAVE
STANDING TO SUE UNLESS HE IS "INTERESTED IN AND AFFECTED ADVERSELY BY
THE DECISION" OF WHICH HE SEEKS REVIEW.  HIS "INTEREST MUST BE OF A
PERSONAL AND NOT OF AN OFFICIAL NATURE."  BRAXTON COUNTY COURT V. WEST
VIRGINIA, 208 U.S. 192, 197; SEE ALSO MASSACHUSETTS V. MELLON, 262 U.S.
447.  THE INTEREST MUST NOT BE WHOLLY NEGLIGIBLE, AS THAT OF A TAXPAYER
OF THE FEDERAL GOVERNMENT IS CONSIDERED TO BE, FROTHINGHAM V. MELLON,
262 U.S. 447; CF. CRAMPTON V. ZABRISKIE, 101 U.S. 601.  A LITIGANT MUST
SHOW MORE THAN THAT "HE SUFFERS IN SOME INDEFINITE WAY IN COMMON WITH
PEOPLE GENERALLY."  FROTHINGHAM V. MELLON, SUPRA, AT 488.    ADVERSE
PERSONAL INTEREST, EVEN OF SUCH AN INDIRECT SORT AS ARISES FROM
COMPETITION, IS ORDINARILY SUFFICIENT TO MEET CONSTITUTIONAL STANDARDS
OF JUSTICIABILITY.  THE COURTS MAY THEREFORE BY STATUTE BE GIVEN
JURISDICTION OVER CLAIMS BASED ON SUCH INTERESTS.  FEDERAL
COMMUNICATIONS COMM'N V. SANDERS RADIO STATION, 309 U.S. 470; CF.
INTERSTATE COMMERCE COMM'N V. OREGON-WASHINGTON R. CO., 288 U.S. 14. 

(2)  TO REQUIRE A COURT TO INTERVENE IN THE ABSENCE OF A STATUTE,
HOWEVER, EITHER ON CONSTITUTIONAL GROUNDS OR IN THE EXERCISE OF
INHERENT EQUITABLE POWERS, SOMETHING MORE THAN ADVERSE PERSONAL
INTEREST IS NEEDED.  THIS ADDITIONAL ELEMENT IS USUALLY DEFINED IN
TERMS WHICH ASSUME THE ANSWER.  IT IS SAID THAT THE INJURY MUST BE "A
WRONG WHICH DIRECTLY RESULTS IN THE VIOLATION OF A LEGAL RIGHT." 
ALABAMA POWER CO. V. ICKES, 302 U.S. 464, 479.  OR THAT THE CONTROVERSY
"MUST BE DEFINITE AND CONCRETE, TOUCHING THE LEGAL RELATIONS OF PARTIES
HAVING ADVERSE LEGAL INTERESTS."  AETNA LIFE INS. CO. V. HAWORTH,
SUPRA, 300 U.S. AT 240-241.  THESE TERMS HAVE MEANING ONLY WHEN
CONTAINED BY THE FACTS TO WHICH THEY HAVE BEEN APPLIED.  IN SEEKING TO
DETERMINE WHETHER IN THE CASE BEFORE US THE STANDARDS THEY REFLECT ARE
MET, THEREFORE, WE MUST GO TO THE DECISIONS.  THEY SHOW THAT THE
EXISTENCE OF "LEGAL" INJURY HAS TURNED ON THE ANSWER TO ONE OR MORE OF
THESE QUESTIONS:  (A) WILL THE ACTION CHALLENGED AT ANY TIME
SUBSTANTIALLY AFFECT THE "LEGAL" INTERESTS OF ANY PERSON?  (B) DOES THE
ACTION CHALLENGED AFFECT THE PETITIONER WITH SUFFICIENT "DIRECTNESS"? 
(C) IS THE ACTION CHALLENGED SUFFICIENTLY "FINAL"?  SINCE EACH OF THESE
QUESTIONS ITSELF CONTAINS A WORD OF ART, WE MUST LOOK TO EXPERIENCE TO
FIND THEIR MEANING. 

(A)  WILL THE ACTION CHALLENGED AT ANY TIME SUBSTANTIALLY AFFECT THE
"LEGAL" INTERESTS OF ANY PERSON?  A LITIGANT ORDINARILY HAS STANDING TO
CHALLENGE GOVERNMENTAL ACTION OF A SORT THAT, IF TAKEN BY A PRIVATE
PERSON, WOULD CREATE A RIGHT OF ACTION COGNIZABLE BY THE COURTS. 
UNITED STATES V. LEE, 106 U.S. 196.  FN1  OR STANDING MAY BE BASED ON
AN INTEREST CREATED BY THE CONSTITUTION OR A STATUTE.  E.G., PARKER V.
FLEMING, 329 U.S. 531; COLEMAN V. MILLER, 307 U.S. 433; CF. BELL V.
HOOD, 327 U.S. 678.  BUT IF NO COMPARABLE COMMON-LAW RIGHT EXISTS AND
NO SUCH CONSTITUTIONAL OR STATUTORY INTEREST HAS BEEN CREATED, RELIEF
IS NOT AVAILABLE JUDICIALLY.  THUS, AT LEAST UNLESS CAPRICIOUS
DISCRIMINATION IS ASSERTED, THERE IS NO PROTECTED INTEREST IN
CONTRACTING WITH THE GOVERNMENT.  A LITIGANT THEREFORE HAS NO STANDING
TO OBJECT THAT AN OFFICIAL HAS MISINTERPRETED HIS INSTRUCTIONS IN
REQUIRING A PARTICULAR CLAUSE TO BE INCLUDED IN A CONTRACT.  PERKINS V.
LUKENS STEEL CO., 310 U.S. 113.  SIMILARLY, A DETERMINATION WHETHER THE
GOVERNMENT IS WITHIN ITS POWERS IN DISTRIBUTING ELECTRIC POWER MAY BE
OF ENORMOUS FINANCIAL CONSEQUENCE TO A PRIVATE POWER COMPANY, BUT IT
HAS NO STANDING TO RAISE THE ISSUE.  TENNESSEE POWER CO. V. T.V.A., 306
U.S. 118; CF. ALABAMA POWER CO. V. ICKES, 302 U.S. 464.  THE COMMON LAW
DOES NOT RECOGNIZE AN INTEREST IN FREEDOM FROM HONEST COMPETITION; A
COURT WILL GIVE PROTECTION FROM COMPETITION BY THE GOVERNMENT,
THEREFORE, ONLY WHEN THE CONSTITUTION OR A STATUTE CREATES SUCH A
RIGHT. 

(B)  DOES THE ACTION CHALLENGED AFFECT PETITIONER WITH SUFFICIENT
"DIRECTNESS"?  FREQUENTLY GOVERNMENTAL ACTION DIRECTLY AFFECTS THE
LEGAL INTERESTS OF SOME PERSON, AND CAUSES ONLY A CONSEQUENTIAL
DETRIMENT TO ANOTHER.  WHETHER THE PERSON CONSEQUENTIALLY HARMED CAN
CHALLENGE THE ACTION IS SAID TO DEPEND ON THE "DIRECTNESS" OF THE
IMPACT OF THE ACTION ON HIM.  A SHIPPER HAS NO STANDING TO ATTACK A
RATE NOT APPLICABLE TO HIM BUT MERELY AFFECTING HIS PREVIOUS
COMPETITIVE ADVANTAGE OVER SHIPPERS SUBJECT TO THE RATE.  HINES
TRUSTEES V. UNITED STATES, 263 U.S. 143, 148; SPRUNT & SON V. UNITED
STATES, 281 U.S. 249, 255, 257.  WHEN THOSE CONSEQUENTIALLY AFFECTED
MAY RESORT TO AN ADMINISTRATIVE AGENCY CHARGED WITH THEIR PROTECTION,
COURTS ARE ESPECIALLY RELUCTANT TO GIVE THEM "STANDING" TO CLAIM
JUDICIAL REVIEW.  SEE ATLANTA V. ICKES, 308 U.S. 517; CF. ASSOCIATED
INDUSTRIES V. ICKES, 134 F.2D 694.  FN2 

BUT IT IS NOT ALWAYS TRUE THAT ONLY THE PERSON IMMEDIATELY AFFECTED
CAN CHALLENGE THE ACTION.  THE FACT THAT AN ADVANTAGEOUS RELATIONSHIP
IS TERMINABLE AT WILL DOES NOT PREVENT A LITIGANT FROM ASSERTING THAT
IMPROPER INTERFERENCE WITH IT GIVES HIM "STANDING" TO ASSERT A RIGHT OF
ACTION.  HITCHMAN COAL & COKE CO. V. MITCHELL, 245 U.S. 229.  ON THIS
PRINCIPLE AN ALIEN EMPLOYEE WAS ALLOWED TO CHALLENGE A STATE LAW
REQUIRING HIS EMPLOYER TO DISCHARGE ALL BUT A SPECIFIED PROPORTION OF
ALIEN EMPLOYEES, TRUAX V. RAICH, 239 U.S. 33, AND A PRIVATE SCHOOL TO
ENJOIN ENFORCEMENT OF A STATUTE REQUIRING PARENTS TO SEND THEIR
CHILDREN TO PUBLIC SCHOOLS, PIERCE V. SOCIETY OF SISTERS, 268 U.S.
510.  THE LIKELIHOOD THAT THE INTERESTS OF THE PETITIONER WILL BE
ADEQUATELY PROTECTED BY THE PERSON DIRECTLY AFFECTED IS A RELEVANT
CONSIDERATION, COMPARE COLUMBIA SYSTEM V. UNITED STATES, 316 U.S. 407,
423-424, WITH SCHENLEY CORP. V. UNITED STATES, 326 U.S. 432, 435, AS
IS, PROBABLY, THE NATURE OF THE RELATIONSHIP INVOLVED.  SEE DAVIS &
FARNUM MFG. CO. V. LOS ANGELES, 189 U.S. 207, 220; TRUAX V. RAICH, 239
U.S. 33, 38-39.  FN3 

(C)  IS THE ACTION CHALLENGED SUFFICIENTLY FINAL?  ALTHOUGH A
LITIGANT IS THE PERSON MOST DIRECTLY AFFECTED BY THE CHALLENGED ACTION
OF THE GOVERNMENT, HE MAY NOT HAVE "STANDING" TO RAISE HIS OBJECTIONS
IN A COURT IF THE ACTION HAS NOT, AS IT WERE, COME TO REST.  FN4
COURTS DO NOT REVIEW ISSUES, ESPECIALLY CONSTITUTIONAL ISSUES, UNTIL
THEY HAVE TO.  SEE PARKER V. LOS ANGELES COUNTY, SUPRA, AND SEE
BRANDEIS, J., CONCURRING IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY,
297 U.S. 288, 341.  IN PART, THIS PRACTICE REFLECTS THE TRADITION THAT
COURTS, HAVING FINAL POWER, CAN EXERCISE IT MOST WISELY BY RESTRICTING
THEMSELVES TO SITUATIONS IN WHICH DECISION IS NECESSARY.  IN PART, IT
IS FOUNDED ON THE PRACTICAL WISDOM OF NOT COMING PREMATURELY OR
NEEDLESSLY IN CONFLICT WITH THE EXECUTIVE OR LEGISLATURE.  SEE
ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, 130-131. 
CONTROVERSIES, THEREFORE, ARE OFTEN HELD NONJUSTICIABLE "(WHERE THE
ACTION SOUGHT TO BE REVIEWED MAY HAVE THE EFFECT OF FORBIDDING OR
COMPELLING CONDUCT ON THE PART OF THE PERSON SEEKING TO REVIEW IT, BUT
ONLY IF SOME FURTHER ACTION IS TAKEN BY THE COMMISSION."  ROCHESTER
TEL. CORP. V. UNITED STATES, SUPRA, AT 129; AND SEE CHICAGO & S. AIR
LINES V. WATERMAN S.S. CORP., 333 U.S. 103.  THERE IS NO "STANDING" TO
CHALLENGE A PRELIMINARY ADMINISTRATIVE DETERMINATION, ALTHOUGH THE
DETERMINATION ITSELF CAUSES SOME DETRIMENT TO THE LITIGANT.  UNITED
STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299; CF. EX PARTE
WILLIAMS, 277 U.S. 267.  NOR DOES THE RESERVATION OF AUTHORITY TO ACT
TO A PETITIONER'S DETRIMENT ENTITLE HIM TO CHALLENGE THE RESERVATION
WHEN IT IS CONCEDED THAT THE AUTHORITY WILL BE EXERCISED ONLY ON A
CONTINGENCY WHICH APPEARS NOT TO BE IMMINENT.  ECCLES V. PEOPLES BANK,
333 U.S. 426.  LACK OF FINALITY ALSO EXPLAINS THE DECISION IN STANDARD
SCALE CO. V. FARRELL, 249 U.S. 571.  THERE THE COURT WAS FACED BY AN
ADVISORY "SPECIFICATION" OF CHARACTERISTICS DESIRABLE IN ORDINARY
MEASURING SCALES.  THE SPECIFICATION COULD BE ENFORCED ONLY BY
INDEPENDENT LOCAL OFFICERS' WITHHOLDING THEIR APPROVAL OF THE
EQUIPMENT.  JUSTICIABILITY WAS DENIED.  FN5 

"FINALITY" IS NOT, HOWEVER, A PRINCIPLE INFLEXIBLY APPLIED.  IF THE
ULTIMATE IMPACT OF THE CHALLENGED ACTION ON THE PETITIONER IS
SUFFICIENTLY PROBABLE AND NOT TOO DISTANT, AND IF THE PROCEDURE BY
WHICH THAT ULTIMATE ACTION MAY BE QUESTIONED IS TOO ONEROUS OR
HAZARDOUS, "STANDING" IS GIVEN TO CHALLENGE THE ACTION AT A PRELIMINARY
STAGE.  TERRACE V. THOMPSON, 263 U.S. 197; SANTA FE PAC. R. CO. V.
LANE, 244 U.S. 492; SEE WAITE V. MACY, 246 U.S. 606.  IT IS WELL
SETTLED THAT EQUITY WILL ENJOIN ENFORCEMENT OF CRIMINAL STATUTES FOUND
TO BE UNCONSTITUTIONAL "WHEN IT IS FOUND TO BE ESSENTIAL TO THE
PROTECTION OF THE PROPERTY RIGHTS, AS TO WHICH THE JURISDICTION OF A
COURT OF EQUITY HAS BEEN INVOKED."  E.G., PHILADELPHIA CO. V. STIMSON,
223 U.S. 605, 621.  FN6  AND IF THE DETERMINATION CHALLENGED CREATES A
STATUS WHICH ENFORCES A COURSE OF CONDUCT THROUGH PENAL SANCTIONS, A
LITIGANT NEED NOT SUBJECT HIMSELF TO THE PENALTIES TO CHALLENGE THE
DETERMINATION.  LA CROSSE TEL. CORP. V. WISCONSIN BOARD, 336 U.S. 18;
SHIELDS V. UTAH IDAHO R. CO., 305 U.S. 177. 

(3)  WHETHER "JUSTICIABILITY" EXISTS, THEREFORE, HAS MOST OFTEN
TURNED ON EVALUATING BOTH THE APPROPRIATENESS OF THE ISSUES FOR
DECISION BY COURTS AND THE HARDSHIP OF DENYING JUDICIAL RELIEF.  THIS
EXPLAINS THE INFERENCE TO BE DRAWN FROM THE CASES THAT "STANDING" TO
CHALLENGE OFFICIAL ACTION IS MORE APT TO EXIST WHEN THAT ACTION IS NOT
WITHIN THE SCOPE OF OFFICIAL AUTHORITY THAN WHEN THE OBJECTION TO THE
ADMINISTRATIVE DECISION GOES ONLY TO ITS CORRECTNESS.  SEE UNITED
STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299, 314-315; PENNSYLVANIA
R. CO. V. LABOR BOARD, 261 U.S. 72; EX PARTE WILLIAMS, 277 U.S. 267,
271.  FN7  THE OBJECTION TO JUDICIAL RESTRAINT OF AN UNAUTHORIZED
EXERCISE OF POWERS IS NOT WEIGHTY.  FN8

                                 II. 

THE INJURY ASSERTED IN THE CASES AT BAR DOES NOT FALL INTO ANY
FAMILIAR CATEGORY.  PETITIONER IN NO. 8, THE JOINT ANTI-FASCIST REFUGEE
COMMITTEE, IS, ACCORDING TO ITS COMPLAINT, AN UNINCORPORATED
ASSOCIATION ENGAGED IN RELIEF WORK ON BEHALF OF SPANISH REPUBLICAN
REFUGEES.  SINCE ITS INCEPTION IT HAS DISTRIBUTED RELIEF TOTALING
$1,229,351; CURRENTLY IT IS COMMITTED TO REGULAR MONTHLY REMITTANCES OF
$5,400.  ITS REVENUES HAVE BEEN OBTAINED FROM PUBLIC CONTRIBUTIONS,
GARNERED LARGELY AT MEETINGS AND SOCIAL FUNCTIONS.  THE NATIONAL
COUNCIL OF AMERICAN-SOVIET FRIENDSHIP, PETITIONER IN NO. 7, IS A
NONPROFIT MEMBERSHIP CORPORATION WHOSE PURPOSE IS ALLEGED TO BE TO
STRENGTHEN FRIENDLY RELATIONS BETWEEN THE UNITED STATES AND THE SOVIET
UNION BY DEVELOPING CULTURAL RELATIONS "BETWEEN THE PEOPLES OF THE TWO
NATIONS" AND BY DISSEMINATING IN THIS COUNTRY EDUCATIONAL MATERIALS
ABOUT RUSSIA.  IT HAS OBTAINED ITS FUNDS THROUGH PUBLIC APPEALS AND
THROUGH COLLECTIONS AT MEETINGS.  PETITIONER IN NO. 71 IS THE
INTERNATIONAL WORKERS ORDER.  ITS COMPLAINT STATES THAT IT IS A
FRATERNAL BENEFIT SOCIETY, COMPRISING OVER 1,800 LODGES, WITH ASSETS
TOTALING APPROXIMATELY $5,000,000.  ITS MEMBERS PAY DUES FOR THE
GENERAL EXPENSES OF THE ORDER, AND MANY OF THEM MAKE ADDITIONAL
CONTRIBUTIONS FOR LIFE, SICKNESS AND DISABILITY INSURANCE.  IN ADDITION
TO ITS INSURANCE ACTIVITIES, THE ORDER "ATTEMPTS TO ENCOURAGE THE
PRESERVATION OF THE CULTURAL HERITAGES AND ARTISTIC VALUES DEVELOPED
...  BY THE PEOPLES OF THE DIFFERENT COUNTRIES OF THE WORLD AND BROUGHT
WITH THEM TO THE UNITED STATES." 

IN NOVEMBER, 1947, EACH OF THESE ORGANIZATIONS WAS INCLUDED IN THE
LIST OF GROUPS DESIGNATED BY THE ATTORNEY GENERAL AS WITHIN THE
PROVISIONS OF EXECUTIVE ORDER NO. 9835, THE PRESIDENT'S LOYALTY ORDER. 
THE LIST WAS DISSEMINATED TO ALL DEPARTMENTS AND AGENCIES OF THE
GOVERNMENT.  SIX MONTHS LATER, EACH WAS WITH MORE PARTICULARITY LABELED
"COMMUNIST."  EACH ALLEGES SUBSTANTIAL INJURY AS A CONSEQUENCE. 
PUBLICITY AND MEETING PLACES HAVE BECOME DIFFICULT FOR THE REFUGEE
COMMITTEE AND THE COUNCIL TO OBTAIN.  THE FEDERAL TAX EXEMPTIONS OF ALL
THREE ORGANIZATIONS HAVE BEEN REVOKED; LICENSES NECESSARY TO
SOLICITATION OF FUNDS HAVE BEEN DENIED THE REFUGEE COMMITTEE; AND THE
NEW YORK SUPERINTENDENT OF INSURANCE HAS BEGUN PROCEEDINGS, IN WHICH A
REPRESENTATIVE OF THE ATTORNEY GENERAL OF THE UNITED STATES HAS
APPEARED, FOR DISSOLUTION OF THE ORDER.  MOST IMPORTANT, EACH OF THE
ORGANIZATIONS ASSERTS THAT IT HAS LOST SUPPORTERS AND MEMBERS,
ESPECIALLY FROM PRESENT OR PROSPECTIVE FEDERAL EMPLOYEES.  CLAIMING
THAT THE INJURY IS IRREPARABLE, EACH ASKS FOR RELIEF BY WAY OF A
DECLARATORY JUDGMENT AND AN INJUNCTION. 

THE NOVELTY OF THE INJURIES DESCRIBED IN THESE PETITIONS DOES NOT
ALTER THE FACT THAT THEY PRESENT THE CHARACTERISTICS WHICH HAVE IN THE
PAST LED THIS COURT TO RECOGNIZE JUSTICIABILITY.  THEY ARE UNLIKE
CLAIMS WHICH THE COURTS HAVE HITHERTO FOUND INCOMPATIBLE WITH THE
JUDICIAL PROCESS.  NO LACK OF FINALITY CAN BE URGED.  DESIGNATION WORKS
AN IMMEDIATE SUBSTANTIAL HARM TO THE REPUTATIONS OF PETITIONERS.  THE
THREAT WHICH IT CARRIES FOR THOSE MEMBERS WHO ARE, OR PROPOSE TO
BECOME, FEDERAL EMPLOYEES MAKES IT NOT A FINICKY OR TENUOUS CLAIM TO
OBJECT TO THE INTERFERENCE WITH THEIR OPPORTUNITIES TO RETAIN OR SECURE
SUCH EMPLOYEES AS MEMBERS.  THE MEMBERSHIP RELATION IS AS SUBSTANTIAL
AS THAT PROTECTED IN TRUAX V. RAICH AND PIERCE V. SOCIETY OF SISTERS,
SUPRA. AND IT IS AT LEAST DOUBTFUL THAT THE MEMBERS COULD OR WOULD
ADEQUATELY PRESENT THE ORGANIZATIONS' OBJECTIONS TO THE DESIGNATION
PROVISIONS OF THE ORDER. 

ONLY ON THE GROUND THAT THE ORGANIZATIONS ASSERT NO INTEREST
PROTECTED IN ANALOGOUS SITUATIONS AT COMMON LAW, BY STATUTE, OR BY THE
CONSTITUTION, THEREFORE, CAN PLAUSIBLE CHALLENGE TO THEIR "STANDING"
HERE BE MADE.  BUT THE REASONS WHICH MADE AN EXERCISE OF JUDICIAL POWER
INAPPROPRIATE IN PERKINS V. LUKENS STEEL CO., TENNESSEE POWER CO. V.
T.V.A., AND ALABAMA POWER CO. V. ICKES, SUPRA, ARE NOT APPOSITE HERE. 
THERE THE INJURIES WERE SUCH THAT, HAD THEY NOT BEEN INFLICTED BY THE
GOVERNMENT, THEY CLEARLY COULD NOT HAVE BEEN REDRESSED.  IN PERKINS V.
LUKENS STEEL CO., IT WAS NOT ASSERTED THAT THE AUTHORITY UNDER WHICH
THE GOVERNMENT ACTED WAS INVALID; ONLY THE CORRECTNESS OF AN
INTERPRETATION OF A STATUTE IN THE COURSE OF THE EXERCISE OF AN
ADMITTED POWER WAS CHALLENGED.  IN THE POWER CASES PROTECTION FROM
COMPETITION WAS SOUGHT; BUT THE THRUST OF THE LAW IS TO PRESERVE
COMPETITION, NOT TO GIVE PROTECTION FROM IT.  THE ACTION THERE
CHALLENGED, FURTHERMORE, WAS NOT DIRECTED AT NAMED INDIVIDUALS.  HERE,
ON THE OTHER HAND, PETITIONERS SEEK TO CHALLENGE GOVERNMENTAL ACTION
STIGMATIZING THEM INDIVIDUALLY.  THEY OBJECT, NOT TO A PARTICULAR
ERRONEOUS APPLICATION OF A VALID POWER, BUT TO THE VALIDITY OF THE
REGULATION AUTHORIZING THE ACTION.  THEY POINT TO TWO TYPES OF INJURY,
EACH OF A SORT WHICH, WERE IT NOT FOR PRINCIPLES OF GOVERNMENTAL
IMMUNITY, WOULD BE CLEARLY ACTIONABLE AT COMMON LAW. 

THIS CONTROVERSY IS THEREFORE AMENABLE TO THE JUDICIAL PROCESS.  FN9
ITS JUSTICIABILITY DOES NOT DEPEND SOLELY ON THE FACT THAT THE ACTION
CHALLENGED IS DEFAMATORY.  NOT EVERY INJURY INFLICTED BY A DEFAMATORY
STATEMENT OF A GOVERNMENT OFFICER CAN BE REDRESSED IN COURT.  ON THE
BALANCE OF ALL CONSIDERATIONS, THE EXERCISE HERE OF JUDICIAL POWER
ACCORDS WITH TRADITIONAL CANONS FOR ACCESS TO COURTS WITHOUT INROADS ON
THE EFFECTIVE CONDUCT OF GOVERNMENT. 

                                 III. 

THIS BRINGS US TO THE MERITS OF THE CLAIMS BEFORE THE COURT. 
PETITIONERS ARE ORGANIZATIONS WHICH, ON THE FACE OF THE RECORD, ARE
ENGAGED SOLELY IN CHARITABLE OR INSURANCE ACTIVITIES.  THEY HAVE BEEN
DESIGNATED "COMMUNIST" BY THE ATTORNEY GENERAL OF THE UNITED STATES. 
THIS DESIGNATION IMPOSES NO LEGAL SANCTION ON THESE ORGANIZATIONS OTHER
THAN THAT IT SERVES AS EVIDENCE IN RIDDING THE GOVERNMENT OF PERSONS
REASONABLY SUSPECTED OF DISLOYALTY.  IT WOULD BE BLINDNESS, HOWEVER,
NOT TO RECOGNIZE THAT IN THE CONDITIONS OF OUR TIME SUCH DESIGNATION
DRASTICALLY RESTRICTS THE ORGANIZATIONS, IF IT DOES NOT PROSCRIBE
THEM.  POTENTIAL MEMBERS, CONTRIBUTORS OR BENEFICIARIES OF LISTED
ORGANIZATIONS MAY WELL BE INFLUENCED BY USE OF THE DESIGNATION, FOR
INSTANCE, AS GROUND FOR REJECTION OF APPLICATIONS FOR COMMISSIONS IN
THE ARMED FORCES OR FOR PERMITS FOR MEETINGS IN THE AUDITORIUMS OF
PUBLIC HOUSING PROJECTS.  COMPARE ACT OF APRIL 3, 1948, SEC. 110(C), 62
STAT. 143, 22 U.S.C. (SUPP. III) SEC. 1508(C).  YET, DESIGNATION HAS
BEEN MADE WITHOUT NOTICE, WITHOUT DISCLOSURE OF ANY REASONS JUSTIFYING
IT, WITHOUT OPPORTUNITY TO MEET THE UNDISCLOSED EVIDENCE OR SUSPICION
ON WHICH DESIGNATION MAY HAVE BEEN BASED, AND WITHOUT OPPORTUNITY TO
ESTABLISH AFFIRMATIVELY THAT THE AIMS AND ACTS OF THE ORGANIZATION ARE
INNOCENT.  IT IS CLAIMED THAT THUS TO MAIM OR DECAPITATE, ON THE MERE
SAY-SO OF THE ATTORNEY GENERAL, AN ORGANIZATION TO ALL OUTWARD-SEEMING
ENGAGED IN LAWFUL OBJECTIVES IS SO DEVOID OF FUNDAMENTAL FAIRNESS AS TO
OFFEND THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

FAIRNESS OF PROCEDURE IS "DUE PROCESS IN THE PRIMARY SENSE." 
BRINKERHOFF-FARIS CO. V. HILL, 281 U.S. 673, 681.  IT IS INGRAINED IN
OUR NATIONAL TRADITIONS AND IS DESIGNED TO MAINTAIN THEM.  IN A VARIETY
OF SITUATIONS THE COURT HAS ENFORCED THIS REQUIREMENT BY CHECKING
ATTEMPTS OF EXECUTIVES, LEGISLATURES, AND LOWER COURTS TO DISREGARD THE
DEEP-ROOTED DEMANDS OF FAIR PLAY ENSHRINED IN THE CONSTITUTION. 
"(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  ...  " THE JAPANESE IMMIGRANT CASE, 189 U.S.
86, 100-101.  "(BY) 'DUE PROCESS' IS MEANT ONE WHICH, FOLLOWING THE
FORMS OF LAW, IS APPROPRIATE TO THE CASE, AND JUST TO THE PARTIES TO BE
AFFECTED.  IT MUST BE PURSUED IN THE ORDINARY MODE PRESCRIBED BY THE
LAW; IT MUST BE ADAPTED TO THE END TO BE ATTAINED; AND WHEREVER IT IS
NECESSARY FOR THE PROTECTION OF THE PARTIES, IT MUST GIVE THEM AN
OPPORTUNITY TO BE HEARD RESPECTING THE JUSTICE OF THE JUDGMENT
SOUGHT."  HAGAR V. RECLAMATION DISTRICT, 111 U.S. 701, 708.  "BEFORE
ITS PROPERTY CAN BE TAKEN UNDER THE EDICT OF AN ADMINISTRATIVE OFFICER
THE APPELLANT IS ENTITLED TO A FAIR HEARING UPON THE FUNDAMENTAL
FACTS."  SOUTHERN R. CO. V. VIRGINIA, 290 U.S. 190, 199.  "WHETHER
ACTING THROUGH ITS JUDICIARY OR THROUGH ITS LEGISLATURE, A STATE MAY
NOT DEPRIVE A PERSON OF ALL EXISTING REMEDIES FOR THE ENFORCEMENT OF A
RIGHT, WHICH THE STATE HAS NO POWER TO DESTROY, UNLESS THERE IS, OR
WAS, AFFORDED TO HIM SOME REAL OPPORTUNITY TO PROTECT IT."  BRINKERHOFF
FARIS CO. V. HILL, SUPRA, 281 U.S. AT 682. 

THE REQUIREMENT OF "DUE PROCESS" IS NOT A FAIR-WEATHER OR TIMID
ASSURANCE.  IT MUST BE RESPECTED IN PERIODS OF CALM AND IN TIMES OF
TROUBLE; IT PROTECTS ALIENS AS WELL AS CITIZENS.  BUT "DUE PROCESS,"
UNLIKE SOME LEGAL RULES, IS NOT A TECHNICAL CONCEPTION WITH A FIXED
CONTENT UNRELATED TO TIME, PLACE AND CIRCUMSTANCES.  EXPRESSING AS IT
DOES IN ITS ULTIMATE ANALYSIS RESPECT ENFORCED BY LAW FOR THAT FEELING
OF JUST TREATMENT WHICH HAS BEEN EVOLVED THROUGH CENTURIES OF ANGLO
AMERICAN CONSTITUTIONAL HISTORY AND CIVILIZATION, "DUE PROCESS" CANNOT
BE IMPRISONED WITHIN THE TREACHEROUS LIMITS OF ANY FORMULA. 
REPRESENTING A PROFOUND ATTITUDE OF FAIRNESS BETWEEN MAN AND MAN, AND
MORE PARTICULARLY BETWEEN THE INDIVIDUAL AND GOVERNMENT, "DUE PROCESS"
IS COMPOUNDED OF HISTORY, REASON, THE PAST COURSE OF DECISIONS, AND
STOUT CONFIDENCE IN THE STRENGTH OF THE DEMOCRATIC FAITH WHICH WE
PROFESS.  DUE PROCESS IS NOT A MECHANICAL INSTRUMENT.  IT IS NOT A
YARDSTICK.  IT IS A PROCESS.  IT IS A DELICATE PROCESS OF ADJUSTMENT
INESCAPABLY INVOLVING THE EXERCISE OF JUDGMENT BY THOSE WHOM THE
CONSTITUTION ENTRUSTED WITH THE UNFOLDING OF THE PROCESS. 

FULLY AWARE OF THE ENORMOUS POWERS THUS GIVEN TO THE JUDICIARY AND
ESPECIALLY TO ITS SUPREME COURT, THOSE WHO FOUNDED THIS NATION PUT
THEIR TRUST IN A JUDICIARY TRULY INDEPENDENT - IN JUDGES NOT SUBJECT TO
THE FEARS OR ALLUREMENTS OF A LIMITED TENURE AND BY THE VERY NATURE OF
THEIR FUNCTION DETACHED FROM PASSING AND PARTISAN INFLUENCES. 

IT MAY FAIRLY BE SAID THAT, BARRING ONLY OCCASIONAL AND TEMPORARY
LAPSES, THIS COURT HAS NOT SOUGHT UNDULY TO CONFINE THOSE WHO HAVE THE
RESPONSIBILITY OF GOVERNING BY GIVING THE GREAT CONCEPT OF DUE PROCESS
DOCTRINAIRE SCOPE.  THE COURT HAS RESPONDED TO THE INFINITE VARIETY AND
PERPLEXITY OF THE TASKS OF GOVERNMENT BY RECOGNIZING THAT WHAT IS
UNFAIR IN ONE SITUATION MAY BE FAIR IN ANOTHER.  COMPARE, FOR INSTANCE,
MURRAY'S LESSEE V. HOBOKEN LAND & IMPROVEMENT CO., 18 HOW.  272, WITH
NG FUNG HO V. WHITE, 259 U.S. 276, AND SEE COMMUNICATIONS COMM'N V.
WJR, 337 U.S. 265, 275.  WHETHER THE EX PARTE PROCEDURE TO WHICH THE
PETITIONERS WERE SUBJECTED DULY OBSERVED "THE RUDIMENTS OF FAIR PLAY,"
CHICAGO, M. & ST. P.R. CO. V. POLT, 232 U.S. 165, 168, CANNOT,
THEREFORE, BE TESTED BY MERE GENERALITIES OR SENTIMENTS ABSTRACTLY
APPEALING.  THE PRECISE NATURE OF THE INTEREST THAT HAS BEEN ADVERSELY
AFFECTED, THE MANNER IN WHICH THIS WAS DONE, THE REASONS FOR DOING IT,
THE AVAILABLE ALTERNATIVES TO THE PROCEDURE THAT WAS FOLLOWED, THE
PROTECTION IMPLICIT IN THE OFFICE OF THE FUNCTIONARY WHOSE CONDUCT IS
CHALLENGED, THE BALANCE OF HURT COMPLAINED OF AND GOOD ACCOMPLISHED -
THESE ARE SOME OF THE CONSIDERATIONS THAT MUST ENTER INTO THE JUDICIAL
JUDGMENT. 

APPLYING THEM TO THE IMMEDIATE SITUATION, WE NOTE THAT PUBLICLY
DESIGNATING AN ORGANIZATION AS WITHIN THE PROSCRIBED CATEGORIES OF THE
LOYALTY ORDER DOES NOT DIRECTLY DEPRIVE ANYONE OF LIBERTY OR PROPERTY. 
WEIGHT MUST ALSO BE GIVEN TO THE FACT THAT SUCH DESIGNATION IS NOT MADE
BY A MINOR OFFICIAL BUT BY THE HIGHEST LAW OFFICER OF THE GOVERNMENT. 
AGAIN, IT IS FAIR TO EMPHASIZE THAT THE INDIVIDUAL'S INTEREST IS HERE
TO BE WEIGHED AGAINST A CLAIM OF THE GREATEST OF ALL PUBLIC INTERESTS,
THAT OF NATIONAL SECURITY.  IN STRIKING THE BALANCE THE RELEVANT
CONSIDERATIONS MUST BE FAIRLY, WHICH MEANS COOLLY, WEIGHED WITH DUE
REGARD TO THE FACT THAT THIS COURT IS NOT EXERCISING A PRIMARY JUDGMENT
BUT IS SITTING IN JUDGMENT UPON THOSE WHO ALSO HAVE TAKEN THE OATH TO
OBSERVE THE CONSTITUTION AND WHO HAVE THE RESPONSIBILITY FOR CARRYING
ON GOVERNMENT. 

BUT THE SIGNIFICANCE WE ATTACH TO GENERAL PRINCIPLES MAY TURN THE
SCALE WHEN COMPETING CLAIMS APPEAL FOR SUPREMACY.  ACHIEVEMENTS OF OUR
CIVILIZATION AS PRECIOUS AS THEY WERE HARD WON WERE SUMMARIZED BY MR.
JUSTICE BRANDEIS WHEN HE WROTE THAT "IN THE DEVELOPMENT OF OUR LIBERTY
INSISTENCE UPON PROCEDURAL REGULARITY HAS BEEN A LARGE FACTOR." 
BURDEAU V. MCDOWELL, 256 U.S. 465, 477(DISSENTING).  IT IS NOTEWORTHY
THAT PROCEDURAL SAFEGUARDS CONSTITUTE THE MAJOR PORTION OF OUR BILL OF
RIGHTS.  AND SO, NO ONE NOW DOUBTS THAT IN THE CRIMINAL LAW A "PERSON'S
RIGHT TO REASONABLE NOTICE OF A CHARGE AGAINST HIM, AND AN OPPORTUNITY
TO BE HEARD IN HIS DEFENSE - A RIGHT TO HIS DAY IN COURT - ARE BASIC IN
OUR SYSTEM OF JURISPRUDENCE."  IN RE OLIVER, 333 U.S. 257, 273.  "THE
HEARING, MOREOVER, MUST BE A REAL ONE, NOT A SHAM OR A PRETENSE." 
PALKO V. CONNECTICUT, 302 U.S. 319, 327.  NOR IS THERE DOUBT THAT
NOTICE AND HEARING ARE PREREQUISITE TO DUE PROCESS IN CIVIL
PROCEEDINGS, E.G., COE V. ARMOUR FERTILIZER WORKS, 237 U.S. 413.  ONLY
THE NARROWEST EXCEPTIONS, JUSTIFIED BY HISTORY BECOME PART OF THE
HABITS OF OUR PEOPLE OR BY OBVIOUS NECESSITY, ARE TOLERATED.  OWNBEY V.
MORGAN, 256 U.S. 94; ENDICOTT JOHNSON CORP. V. ENCYCLOPEDIA PRESS, 266
U.S. 285; SEE COOKE V. UNITED STATES, 267 U.S. 517, 536. 

IT IS AGAINST THIS BACKGROUND OF GUIDING CONSIDERATIONS THAT WE MUST
VIEW THE RATHER NOVEL ASPECTS OF THE SITUATION AT HAND.  IT IS NOT TRUE
THAT THE EVILS AGAINST WHICH THE LOYALTY ORDER WAS DIRECTED ARE WHOLLY
DEVOID OF ANALOGY IN OUR OWN HISTORY.  THE CIRCUMSTANCES ATTENDING THE
NAPOLEONIC CONFLICTS, WHICH GAVE RISE TO THE SEDITION ACT OF 1798, 1
STAT. 596, READILY COME TO MIND.  BUT IT IS TRUE THAT THE EXECUTIVE
ACTION NOW UNDER SCRUTINY IS OF A SORT NOT HERETOFORE CHALLENGED IN
THIS COURT.  THAT OF ITSELF DOES NOT JUSTIFY THE EX PARTE SUMMARY
DESIGNATION PROCEDURE.  IT DOES MAKE IT NECESSARY TO CONSIDER ITS
VALIDITY WHEN JUDGED BY OUR WHOLE EXPERIENCE WITH THE DUE PROCESS
CLAUSE. 

                                 IV. 

THE CONSTRUCTION PLACED BY THIS COURT UPON LEGISLATION CONFERRING
ADMINISTRATIVE POWERS SHOWS CONSISTENT RESPECT FOR A REQUIREMENT OF
FAIR PROCEDURE BEFORE MEN ARE DENIED OR DEPRIVED OF RIGHTS.  FROM A
GREAT MASS OF CASES, RUNNING THE FULL GAMUT OF CONTROL OVER PROPERTY
AND LIBERTY, THERE EMERGES THE PRINCIPLE THAT STATUTES SHOULD BE
INTERPRETED, IF EXPLICIT LANGUAGE DOES NOT PRECLUDE, SO AS TO OBSERVE
DUE PROCESS IN ITS BASIC MEANING.  SEE, E.G., ANNISTON MFG. CO. V.
DAVIS, 301 U.S. 337; AMERICAN POWER CO. V. S.E.C., 329 U.S. 90, 107
108; WONG YANG SUNG V. MCGRATH, 339 U.S. 33, 49.  FAIR HEARINGS HAVE
BEEN HELD ESSENTIAL FOR RATE DETERMINATIONS FN10  AND, GENERALLY, TO
DEPRIVE PERSONS OF PROPERTY.  FN11  AN OPPORTUNITY TO BE HEARD IS
CONSTITUTIONALLY NECESSARY TO DEPORT PERSONS EVEN THOUGH THEY MAKE NO
CLAIM OF CITIZENSHIP, AND IS ACCORDED TO ALIENS SEEKING ENTRY IN THE
ABSENCE OF SPECIFIC DIRECTIONS TO THE CONTRARY.  FN12 EVEN IN THE
DISTRIBUTION BY THE GOVERNMENT OF BENEFITS THAT MAY BE WITHHELD, THE
OPPORTUNITY OF A HEARING IS DEEMED IMPORTANT.  FN13 

THE HIGH SOCIAL AND MORAL VALUES INHERENT IN THE PROCEDURAL SAFEGUARD
OF A FAIR HEARING ARE ATTESTED BY THE NARROWNESS AND RARITY OF THE
INSTANCES WHEN WE HAVE SUSTAINED EXECUTIVE ACTION EVEN THOUGH IT DID
NOT OBSERVE THE CUSTOMARY STANDARDS OF PROCEDURAL FAIRNESS.  IT IS IN
THESE INSTANCES THAT CONSTITUTIONAL COMPULSION REGARDING FAIR PROCEDURE
WAS DIRECTLY IN ISSUE.  THUS IT HAS BEEN HELD THAT THE CONSTITUTION
CANNOT BE INVOKED TO PREVENT CONGRESS FROM AUTHORIZING DISBURSEMENTS ON
THE EX PARTE DETERMINATION OF AN ADMINISTRATIVE OFFICER THAT PRESCRIBED
CONDITIONS ARE MET.  UNITED STATES V. BABCOCK, 250 U.S. 328; CF. UNITED
STATES EX REL. DUNLAP V. BLACK, 128 U.S. 40.  THE IMPORTATION OF GOODS
IS A PRIVILEGE WHICH, IF CONGRESS CLEARLY SO DIRECTS, MAY LIKEWISE BE
CONDITIONED ON EX PARTE FINDINGS.  BUTTFIELD V. STRANAHAN, 192 U.S.
470; CF. HILTON V. MERRITT, 110 U.S. 97.  ONLY BY A CLOSE DIVISION OF
THE COURT WAS IT HELD THAT AT A TIME OF NATIONAL EMERGENCY, WHEN WAR
HAS NOT BEEN CLOSED BY FORMAL PEACE, THE ATTORNEY GENERAL IS NOT
REQUIRED TO GIVE A HEARING BEFORE DENYING HOSPITALITY TO AN ALIEN
DEEMED DANGEROUS TO PUBLIC SECURITY.  LUDECKE V. WATKINS, 335 U.S. 160;
UNITED STATES EX REL. KNAUFF V. SHAUGHNESSY, 338 U.S. 537.  AGAIN, WHEN
DECISIONS OF ADMINISTRATIVE OFFICERS IN EXECUTION OF LEGISLATION TURN
EXCLUSIVELY ON CONSIDERATIONS SIMILAR TO THOSE ON WHICH THE LEGISLATIVE
BODY COULD ITSELF HAVE ACTED SUMMARILY, NOTICE AND HEARING MAY NOT BE
COMMANDED BY THE CONSTITUTION.  BI-METALLIC CO. V. COLORADO, 239 U.S.
441.  FN14  FINALLY, SUMMARY ADMINISTRATIVE PROCEDURE MAY BE SANCTIONED
BY HISTORY OR OBVIOUS NECESSITY.  BUT THESE ARE SO RARE AS TO BE
ISOLATED INSTANCES.  MURRAY'S LESSEE V. HOBOKEN LAND & IMPROVEMENT CO.,
18 HOW.  272; SPRINGER V. UNITED STATES, 102 U.S. 586; LAWTON V.
STEELE, 152 U.S. 133. 

THIS COURT IS NOT ALONE IN RECOGNIZING THAT THE RIGHT TO BE HEARD
BEFORE BEING CONDEMNED TO SUFFER GRIEVOUS LOSS OF ANY KIND, EVEN THOUGH
IT MAY NOT INVOLVE THE STIGMA AND HARDSHIPS OF A CRIMINAL CONVICTION,
IS A PRINCIPLE BASIC TO OUR SOCIETY.  REGARD FOR THIS PRINCIPLE HAS
GUIDED CONGRESS AND THE EXECUTIVE.  CONGRESS HAS OFTEN ENTRUSTED, AS IT
MAY, PROTECTION OF INTERESTS WHICH IT HAS CREATED TO ADMINISTRATIVE
AGENCIES RATHER THAN TO THE COURTS.  BUT RARELY HAS IT AUTHORIZED SUCH
AGENCIES TO ACT WITHOUT THOSE ESSENTIAL SAFEGUARDS FOR FAIR JUDGMENT
WHICH IN THE COURSE OF CENTURIES HAVE COME TO BE ASSOCIATED WITH DUE
PROCESS.  SEE SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S.
297; TUTUN V. UNITED STATES, 270 U.S. 568, 576, 577; PENNSYLVANIA R.
CO. V. LABOR BOARD, 261 U.S. 72.  FN15  AND WHEN CONGRESS HAS GIVEN AN
ADMINISTRATIVE AGENCY DISCRETION TO DETERMINE ITS OWN PROCEDURE, THE
AGENCY HAS RARELY CHOSEN TO DISPOSE OF THE RIGHTS OF INDIVIDUALS
WITHOUT A HEARING, HOWEVER INFORMAL.  FN16    THE HEART OF THE MATTER
IS THAT DEMOCRACY IMPLIES RESPECT FOR THE ELEMENTARY RIGHTS OF MEN,
HOWEVER SUSPECT OR UNWORTHY; A DEMOCRATIC GOVERNMENT MUST THEREFORE
PRACTICE FAIRNESS; AND FAIRNESS CAN RARELY BE OBTAINED BY SECRET, ONE
SIDED DETERMINATION OF FACTS DECISIVE OF RIGHTS.  FN17 

AN OPPORTUNITY TO BE HEARD MAY NOT SEEM VITAL WHEN AN ISSUE RELATES
ONLY TO TECHNICAL QUESTIONS SUSCEPTIBLE OF DEMONSTRABLE PROOF ON WHICH
EVIDENCE IS NOT LIKELY TO BE OVERLOOKED AND ARGUMENT ON THE MEANING AND
WORTH OF CONFLICTING AND CLOUDY DATA NOT APT TO BE HELPFUL.  BUT IN
OTHER SITUATIONS AN ADMONITION OF MR. JUSTICE HOLMES BECOMES RELEVANT. 
"ONE HAS TO REMEMBER THAT WHEN ONE'S INTEREST IS KEENLY EXCITED
EVIDENCE GATHERS FROM ALL SIDES AROUND THE MAGNETIC POINT  ...  " FN18
IT SHOULD BE PARTICULARLY HEEDED AT TIMES OF AGITATION AND ANXIETY,
WHEN FEAR AND SUSPICION IMPREGNATE THE AIR WE BREATHE.  COMPARE BROWN,
THE FRENCH REVOLUTION IN ENGLISH HISTORY.  "THE PLEA THAT EVIDENCE OF
GUILT MUST BE SECRET IS ABHORRENT TO FREE MEN, BECAUSE IT PROVIDES A
CLOAK FOR THE MALEVOLENT, THE MISINFORMED, THE MEDDLESOME, AND THE
CORRUPT TO PLAY THE ROLE OF INFORMER UNDETECTED AND UNCORRECTED." 
UNITED STATES EX REL. KNAUFF V. SHAUGHNESSY, 338 U.S. 537,
551(DISSENTING).  APPEARANCES IN THE DARK ARE APT TO LOOK DIFFERENT IN
THE LIGHT OF DAY. 

MAN BEING WHAT HE IS CANNOT SAFELY BE TRUSTED WITH COMPLETE IMMUNITY
FROM OUTWARD RESPONSIBILITY IN DEPRIVING OTHERS OF THEIR RIGHTS.  AT
LEAST SUCH IS THE CONVICTION UNDERLYING OUR BILL OF RIGHTS.  THAT A
CONCLUSION SATISFIES ONE'S PRIVATE CONSCIENCE DOES NOT ATTEST ITS
RELIABILITY.  THE VALIDITY AND MORAL AUTHORITY OF A CONCLUSION LARGELY
DEPEND ON THE MODE BY WHICH IT WAS REACHED.  SECRECY IS NOT CONGENIAL
TO TRUTH-SEEKING AND SELF-RIGHTEOUSNESS GIVES TOO SLENDER AN ASSURANCE
OF RIGHTNESS.  NO BETTER INSTRUMENT HAS BEEN DEVISED FOR ARRIVING AT
TRUTH THAN TO GIVE A PERSON IN JEOPARDY OF SERIOUS LOSS NOTICE OF THE
CASE AGAINST HIM AND OPPORTUNITY TO MEET IT. NOR HAS A BETTER WAY BEEN
FOUND FOR GENERATING THE FEELING, SO IMPORTANT TO A POPULAR GOVERNMENT,
THAT JUSTICE HAS BEEN DONE.  FN19

                                  V. 

THE STRENGTH AND SIGNIFICANCE OF THESE CONSIDERATIONS -
CONSIDERATIONS WHICH GO TO THE VERY ETHOS OF THE SCHEME OF OUR SOCIETY
GIVE A READY ANSWER TO THE PROBLEM BEFORE US.  THAT A HEARING HAS BEEN
THOUGHT INDISPENSABLE IN SO MANY OTHER SITUATIONS, LEAVING THE CASES OF
DENIAL EXCEPTIONAL, DOES NOT OF ITSELF PROVE THAT IT MUST BE FOUND
ESSENTIAL HERE.  BUT IT DOES PLACE UPON THE ATTORNEY GENERAL THE BURDEN
OF SHOWING WEIGHTY REASON FOR DEPARTING IN THIS INSTANCE FROM A RULE SO
DEEPLY IMBEDDED IN HISTORY AND IN THE DEMANDS OF JUSTICE.  NOTHING IN
THE LOYALTY ORDER REQUIRES HIM TO DENY ORGANIZATIONS OPPORTUNITY TO
PRESENT THEIR CASE.  THE EXECUTIVE ORDER, DEFINING HIS POWERS, DIRECTS
ONLY THAT DESIGNATION SHALL BE MADE "AFTER APPROPRIATE INVESTIGATION
AND DETERMINATION."  THIS SURELY DOES NOT PRECLUDE AN ADMINISTRATIVE
PROCEDURE, HOWEVER INFORMAL, WHICH WOULD INCORPORATE THE ESSENTIALS OF
DUE PROCESS.  NOTHING HAS BEEN PRESENTED TO THE COURT TO INDICATE THAT
IT WILL BE IMPRACTICAL OR PREJUDICIAL TO A CONCRETE PUBLIC INTEREST TO
DISCLOSE TO ORGANIZATIONS THE NATURE OF THE CASE AGAINST THEM AND TO
PERMIT THEM TO MEET IT IF THEY CAN.  INDEED, SUCH A CONTENTION COULD
HARDLY BE MADE INASMUCH AS THE LOYALTY ORDER ITSELF REQUIRES PARTIAL
DISCLOSURE AND HEARING IN PROCEEDINGS AGAINST A GOVERNMENT EMPLOYEE WHO
IS A MEMBER OF A PROSCRIBED ORGANIZATION.  WHETHER SUCH PROCEDURE
SUFFICIENTLY PROTECTS THE RIGHTS OF THE EMPLOYEE IS A DIFFERENT STORY. 
SUCH AS IT IS, IT AFFORDS EVIDENCE THAT THE WHOLLY SUMMARY PROCESS FOR
THE ORGANIZATIONS IS INADEQUATE.  FN20  AND WE HAVE CONTROLLING PROOF
THAT CONGRESS DID NOT THINK THAT THE ATTORNEY GENERAL'S PROCEDURE WAS
INDISPENSABLE FOR THE PROTECTION OF THE PUBLIC INTEREST.  THE MCCARRAN
ACT, PASSED UNDER CIRCUMSTANCES CERTAINLY NOT MORE SERENE THAN WHEN THE
LOYALTY ORDER WAS ISSUED, GRANTS ORGANIZATIONS A FULL ADMINISTRATIVE
HEARING, SUBJECT TO JUDICIAL REVIEW, BEFORE THEY ARE REQUIRED TO
REGISTER AS "COMMUNIST-ACTION" OR "COMMUNIST-FRONT."  N21 

WE ARE NOT HERE DEALING WITH THE GRANT OF GOVERNMENT LARGESS.  WE
HAVE NOT BEFORE US THE MEASURED ACTION OF CONGRESS, WITH THE PAUSE THAT
IS PROPERLY ENGENDERED WHEN THE VALIDITY OF LEGISLATION IS ASSAILED. 
THE ATTORNEY GENERAL IS CERTAINLY NOT IMMUNE FROM THE HISTORIC
REQUIREMENTS OF FAIRNESS MERELY BECAUSE HE ACTS, HOWEVER
CONSCIENTIOUSLY, IN THE NAME OF SECURITY.  NOR DOES HE OBTAIN IMMUNITY
ON THE GROUND THAT DESIGNATION IS NOT AN "ADJUDICATION" OR A
"REGULATION" IN THE CONVENTIONAL USE OF THOSE TERMS.  DUE PROCESS IS
NOT CONFINED IN ITS SCOPE TO THE PARTICULAR FORMS IN WHICH RIGHTS HAVE
HERETOFORE BEEN FOUND TO HAVE BEEN CURTAILED FOR WANT OF PROCEDURAL
FAIRNESS.  DUE PROCESS IS PERHAPS THE MOST MAJESTIC CONCEPT IN OUR
WHOLE CONSTITUTIONAL SYSTEM.  WHILE IT CONTAINS THE GARNERED WISDOM OF
THE PAST IN ASSURING FUNDAMENTAL JUSTICE, IT IS ALSO A LIVING PRINCIPLE
NOT CONFINED TO PAST INSTANCES. 

THEREFORE THE PETITIONERS DID SET FORTH CAUSES OF ACTION WHICH THE
DISTRICT COURT SHOULD HAVE ENTERTAINED. 

FN1  THE DECISIONS ARE COLLECTED IN THE DISSENTING OPINION IN LARSON
V. DOMESTIC & FOREIGN CORP., 337 U.S. 682, 705. 

FN2  A STATUTE MAY OF COURSE CONFER STANDING EVEN IN THIS SITUATION. 
FEDERAL COMMUNICATIONS COMM'N V. SANDERS RADIO STATION, 309 U.S. 470;
COLUMBIA SYSTEM V. UNITED STATES, 316 U.S. 407; CF. YOUNGSTOWN CO. V.
UNITED STATES, 295 U.S. 476; STARK V. WICKARD, 321 U.S. 288. 

FN3  THE DAVIS & FARNUM CASE HELD THAT A SUBCONTRACTOR DID NOT HAVE
STANDING TO ENJOIN A MUNICIPAL ORDINANCE WHICH PROHIBITED A
CONSTRUCTION PROJECT IN VIOLATION OF A RIGHT OF THE OWNER OF THE LAND
ON WHICH IT WAS TO BE BUILT.  THE COURT HELD THAT THE PETITIONER HAD NO
LEGAL INTEREST IN THE CONTROVERSY, SINCE HIS INTEREST WAS ONLY
"INDIRECT." 

FN4  GOVERNMENT ACTION IS "FINAL" IN THE SENSE HERE INVOLVED WHEN AT
NO FUTURE TIME WILL ITS IMPACT ON THE PETITIONER BECOME MORE
CONCLUSIVE, DEFINITE, OR SUBSTANTIAL.  "FINALITY" IS ALSO EMPLOYED IN A
DIFFERENT SENSE WITH WHICH WE ARE NOT HERE CONCERNED, IN REFERENCE TO
JUDICIAL ACTION NOT SUBJECT TO SUBSEQUENT REVISORY EXECUTIVE OR
LEGISLATIVE ACTION.  CF. UNITED STATES V. FERREIRA, 13 HOW.  40. 

FN5  THE COURT EXPRESSED THE DECISION IN TERMS OF THE NONLEGISLATIVE
CHARACTER OF THE SPECIFICATION.  BUT SINCE THE VALIDITY OF THE
SPECIFICATION COULD BE DETERMINED IN AN ACTION FOR INJUNCTION OR
MANDAMUS AGAINST THE LOCAL OFFICERS, THE DECISION DOES NOT ESTABLISH
THAT FINAL ADMINISTRATIVE ACTION IS IMMUNE FROM REVIEW BECAUSE IT IS
NOT LEGISLATIVE IN FORM. 

FN6  SEE ALSO DECISIONS TREATING AS "JUSTICIABLE" BILLS TO ENJOIN
REGULATIONS WHICH CREATE DUTIES IMMEDIATELY ENFORCEABLE BY IMPOSITION
OF PENALTIES.  ASSIGNED CAR CASES, 274 U.S. 564; UNITED STATES V.
BALTIMORE & O.R. CO., 293 U.S. 454. 

FN7  IN THE LOS ANGELES CASE THE COURT THUS SUPPORTED ITS CONCLUSION
THAT THE BILL WAS NOT JUSTICIABLE UNDER GENERAL EQUITY POWERS:  "THE
INVESTIGATION WAS UNDERTAKEN IN AID OF THE LEGISLATIVE PURPOSE OF
REGULATION.  IN CONDUCTING THE INVESTIGATION, AND IN MAKING THE REPORT,
THE COMMISSION PERFORMED A SERVICE SPECIFICALLY DELEGATED AND
PRESCRIBED BY CONGRESS.  ITS CONCLUSIONS, IF ERRONEOUS IN LAW, MAY BE
DISREGARDED.  BUT NEITHER ITS UTTERANCES, NOR ITS PROCESSES OF
REASONING, AS DISTINGUISHED FROM ITS ACTS, ARE A SUBJECT FOR
INJUNCTION."  273 U.S. AT 314-315.  PENNSYLVANIA R. CO. V. LABOR BOARD,
261 U.S. 72, WAS A BILL TO ENJOIN THE RAILROAD LABOR BOARD FROM
PUBLISHING THAT THE PETITIONER HAD VIOLATED ITS DECISION.  DECISIONS OF
THE BOARD WERE NOT LEGALLY ENFORCEABLE; AND THE COURT THEREFORE
CONCLUDED THAT THEY VIOLATED "NO LEGAL OR EQUITABLE RIGHT OF THE
COMPLAINING COMPANY."  261 U.S. AT 85.  THE COURT CONSIDERED AT LENGTH,
HOWEVER, THE COMPANY'S ARGUMENT THAT THE BOARD HAD BEEN GIVEN NO
JURISDICTION TO DECIDE THE PARTICULAR ISSUE INVOLVED.  THAT IT FOUND IT
NECESSARY TO DECIDE THIS ISSUE AGAINST THE COMPANY ON THE MERITS
INDICATES THAT IT THOUGHT A STRONGER CASE FOR STANDING WOULD HAVE BEEN
PRESENTED HAD THE DECISION BEEN BEYOND THE BOARD'S AUTHORITY.  IN EX
PARTE WILLIAMS, 277 U.S. AT 271, THERE IS A SUGGESTION THAT A LITIGANT
MAY HAVE STANDING TO ENJOIN A TAX ASSESSMENT WHEN THE CHALLENGE IS TO
THE VALIDITY OF THE STATUTE AUTHORIZING THE ASSESSMENT, ALTHOUGH THERE
WOULD BE NO STANDING TO CHALLENGE THE ASSESSMENT ON THE GROUND THAT IT
DENIED EQUAL PROTECTION OF THE LAWS. 

FN8  COMPARE THE DECISIONS WHICH HOLD THAT CERTAIN EXECUTIVE OFFICERS
ARE NOT LIABLE IN SUITS FOR DAMAGES FOR ERRONEOUS OR EVEN MALICIOUS
CONDUCT IN OFFICE, SO LONG AS THEY ARE ACTING WITHIN THE SCOPE OF THE
AUTHORITY GIVEN THEM.  SPALDING V. VILAS, 161 U.S. 483; GREGOIRE V.
BIDDLE, 177 F.2D 579. 

FN9  A DENVER AFFILIATE OF THE NATIONAL COUNCIL, JOINED AS PETITIONER
IN NO. 7, HAS STANDING IDENTICAL WITH ITS PARENT.  THE INDIVIDUAL
PETITIONERS IN THAT SUIT, HOWEVER, HAVE AS OFFICERS OF THE COUNCIL AN
INTEREST WHICH IS TOO REMOTE TO JUSTIFY FINDING THE ISSUES JUSTICIABLE
AS TO THEM. 

FN10  THE REASONABLENESS OF RATES HAS OF COURSE BEEN HELD IN PART A
QUESTION FOR THE COURTS.  OHIO VALLEY CO. V. BEN AVON BOROUGH, 253 U.S.
287; CF. CHICAGO, M. & ST. P.R. CO. V. MINNESOTA, 134 U.S. 418.  BUT TO
THE EXTENT THAT FINALITY IS ACCORDED TO THE DETERMINATION OF AN
ADMINISTRATIVE AGENCY, THE COURT HAS EXACTED A HIGH STANDARD OF
PROCEDURAL FAIRNESS.  OHIO BELL TEL. CO. V. COMMISSION, 301 U.S. 292,
304; SEE I.C.C. V. LOUISVILLE & N.R. CO., 227 U.S. 88; UNITED STATES V.
ABILENE & S.R. CO., 265 U.S. 274; WEST OHIO GAS CO. V. COMMISSION (NO.
1), 294 U.S. 63; RAILROAD COMM'N V. PACIFIC GAS CO., 302 U.S. 388;
MORGAN V. UNITED STATES, 304 U.S. 1; CF. UNITED STATES V. ILLINOIS
CENTRAL R. CO., 291 U.S. 457. 

FN11  IN SOUTHERN R. CO. V. VIRGINIA, 290 U.S. 190, THE COURT
DECLARED UNCONSTITUTIONAL A STATE OFFICER'S EX PARTE ORDER THAT A
RAILROAD INSTALL AN OVERHEAD CROSSING.  COMPARE MONONGAHELA BRIDGE CO.
V. UNITED STATES, 216 U.S. 177, IN WHICH A COMPARABLE ORDER OF THE
SECRETARY OF WAR, ENTERED AFTER HEARING, WAS UPHELD.  IN DECISIONS
INVOLVING LOCAL TAXATION FOR IMPROVEMENTS, THE COURT HAS REQUIRED THAT
OWNERS BE GIVEN A HEARING ON VALUATION AS WELL AS ON THE QUESTION
WHETHER THEIR PROPERTY HAS BEEN BENEFITED WHENEVER THAT DETERMINATION
HAS NOT BEEN LEGISLATIVELY MADE.  SEE, E.G., EMBREE V. KANSAS CITY ROAD
DIST., 240 U.S. 242; CF. ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337.  AND
ALTHOUGH AN INDIVIDUAL'S INTEREST HAS BEEN CREATED BY AN EX PARTE
DECISION, IT MAY NOT BE DESTROYED "WITHOUT THAT CHARACTER OF NOTICE AND
OPPORTUNITY TO BE HEARD ESSENTIAL TO DUE PROCESS OF LAW."  UNITED
STATES EX REL. TURNER V. FISHER, 222 U.S. 204, 208; GARFIELD V.
GOLDSBY, 211 U.S. 249.  SEE ALSO EX PARTE ROBINSON, 19 WALL.  505. 

FN12  THE JAPANESE IMMIGRANT CASE, 189 U.S. 86; SEE KWOCK JAN FAT V.
WHITE, 253 U.S. 454; WONG YANG SUNG V. MCGRATH, 339 U.S. 33, 49; CF.
UNITED STATES EX REL. KNAUFF V. SHAUGHNESSY, 338 U.S. 537.  IN LLOYD
SABAUDO SOCIETA V. ELTING, 287 U.S. 329, THE COURT HELD THAT A
STEAMSHIP COMPANY REQUIRED TO PAY A FINE TO OBTAIN PORT CLEARANCE FOR A
SHIP WHICH HAD BROUGHT A DISEASED ALIEN TO THIS COUNTRY WAS ENTITLED TO
DETERMINATION OF THE FACTS BY FAIR PROCEDURE.  THE COURT DISAPPROVED IN
PART OCEANIC NAV. CO. V. STRANAHAN, 214 U.S. 320. 

FN13  IN DISMUKE V. UNITED STATES, 297 U.S. 167, 172, THE COURT SAID
THAT "IN THE ABSENCE OF COMPELLING LANGUAGE, RESORT TO THE COURTS TO
ASSERT A RIGHT WHICH THE STATUTE CREATES WILL BE DEEMED TO BE CURTAILED
ONLY SO FAR AS AUTHORITY TO DECIDE IS GIVEN TO THE ADMINISTRATIVE
OFFICER.  ...  IF HE IS AUTHORIZED TO DETERMINE QUESTIONS OF FACT HIS
DECISION MUST BE ACCEPTED UNLESS HE EXCEEDS HIS AUTHORITY BY MAKING A
DETERMINATION WHICH IS ARBITRARY OR CAPRICIOUS OR UNSUPPORTED BY
EVIDENCE,  ...  OR BY FAILING TO FOLLOW A PROCEDURE WHICH SATISFIES
ELEMENTARY STANDARDS OF FAIRNESS AND REASONABLENESS ESSENTIAL TO THE
DUE CONDUCT OF THE PROCEEDING WHICH CONGRESS HAS AUTHORIZED  ...  " 

FN14  THUS, NO HEARING NEED BE GRANTED ON THE QUESTION WHETHER
PROPERTY IS NEEDED FOR A PUBLIC USE.  RINDGE CO. V. LOS ANGELES, 262
U.S. 700.  CF. MARTIN V. MOTT, 12 WHEAT.  19; UNITED STATES V. BUSH &
CO., 310 U.S. 371. 

FN15  CF. NORWEGIAN NITROGEN CO. V. UNITED STATES, 288 U.S. 294.  IN
RECENT CUSTOMS LEGISLATION CONGRESS HAS REQUIRED A HEARING ON
OBJECTIONS TO APPRAISEMENT.  38 STAT. 187, AS AMENDED, 19 U.S.C. SEC.
1501; SEE FREUND, ADMINISTRATIVE POWERS OVER PERSONS AND PROPERTY,
163.  IN NUMBERLESS OTHER SITUATIONS CONGRESS HAS REQUIRED THE
ESSENTIALS OF A HEARING.  AMONG THOSE THAT HAVE COME BEFORE THIS COURT
ARE REMOVAL ORDERS OF THE FEDERAL RESERVE BOARD, BOARD OF GOVERNORS V.
AGNEW, 329 U.S. 441; DETERMINATIONS UNDER THE HATCH ACT, OKLAHOMA V.
CIVIL SERVICE COMM'N, 330 U.S. 127; INDUCTION ORDERS UNDER THE DRAFT
LAW, ESTEP V. UNITED STATES, 327 U.S. 114; MINIMUM PRICE ORDERS OF THE
SECRETARY OF AGRICULTURE, STARK V. WICKARD, 321 U.S. 288; PRICE
CONTROL, YAKUS V. UNITED STATES, 321 U.S. 414; MINIMUM WAGE
DETERMINATIONS, OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126; LABOR
RELATIONS REGULATION, LABOR BOARD V. MACKAY RADIO CO., 304 U.S. 333;
LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 47; SHIELDS V.
UTAH IDAHO R. CO., 305 U.S. 177; INLAND EMPIRE COUNCIL V. MILLIS, 325
U.S. 697.    FN16  IN 1941 THE ATTORNEY GENERAL'S COMMITTEE ON
ADMINISTRATIVE PROCEDURE REPORTED THAT IT "FOUND IN ITS INVESTIGATION
OF THE ADMINISTRATIVE PROCESS FEW INSTANCES OF INDIFFERENCE ON THE PART
OF THE AGENCIES TO THE BASIC VALUES WHICH UNDERLIE A FAIR HEARING." 
THESE VALUES IT DEFINED AS FOLLOWS:  "BEFORE ADVERSE ACTION IS TO BE
TAKEN BY AN AGENCY, WHETHER IT BE DENYING PRIVILEGES TO AN APPLICANT OR
BOUNTIES TO A CLAIMANT, BEFORE A CEASE-AND-DESIST ORDER IS ISSUED OR
PRIVILEGES OR BOUNTIES ARE PERMANENTLY WITHDRAWN, BEFORE AN INDIVIDUAL
IS ORDERED DIRECTLY TO ALTER HIS METHOD OF BUSINESS, OR BEFORE
DISCIPLINE IS IMPOSED UPON HIM, THE INDIVIDUAL IMMEDIATELY CONCERNED
SHOULD BE APPRISED NOT ONLY OF THE CONTEMPLATED ACTION WITH SUFFICIENT
PRECISION TO PERMIT HIS PREPARATION TO RESIST, BUT, BEFORE FINAL
ACTION, HE SHOULD BE APPRISED OF THE EVIDENCE AND CONTENTIONS BROUGHT
FORWARD AGAINST HIM SO THAT HE MAY MEET THEM.  HE MUST BE OFFERED A
FORUM WHICH PROVIDES HIM WITH AN OPPORTUNITY TO BRING HIS OWN
CONTENTIONS HOME TO THOSE WHO WILL ADJUDICATE THE CONTROVERSY IN WHICH
HE IS CONCERNED.  THE FORUM ITSELF MUST BE ONE WHICH IS PREPARED TO
RECEIVE AND CONSIDER ALL THAT HE OFFERS WHICH IS RELEVANT TO THE
CONTROVERSY."  FINAL REPORT, P. 62. 

THE MONOGRAPHS PREPARED UNDER THE DIRECTION OF THE COMMITTEE SUPPORT
THE CONCLUSION THAT BY STATUTORY DIRECTION OR ADMINISTRATIVE
INTERPRETATION AGENCIES CONSISTENTLY GRANT AT LEAST MINIMUM RIGHTS OF
HEARING.  FOR EXAMPLE, THE WALSH-HEALEY ACT IS ENFORCEABLE BY THE
GOVERNMENT'S RECOVERY OF LIQUIDATED DAMAGES AND BY ITS WITHHOLDING
FURTHER CONTRACTS FOR A THREE-YEAR PERIOD.  ADMINISTRATIVE HEARINGS ARE
EMPLOYED FOR ALL CONTESTED ACTION.  MONOGRAPH OF THE ATTORNEY GENERAL'S
COMMITTEE ON ADMINISTRATIVE PROCEDURE, S. DOC. NO. 186, 76TH CONG., 3D
SESS., PART 1, P. 7.  IT IS GENERALLY THE PRACTICE OF THE VETERANS'
ADMINISTRATION TO GRANT HEARINGS ON REQUEST OF CLAIMANTS.  ID., PART 2,
P. 11.  HEARINGS ARE GRANTED ON REQUEST ON APPLICATIONS FOR PERMITS
FROM THE FEDERAL ALCOHOL ADMINISTRATION, ID., PART 5, P. 6, AND WHEN
LICENSES GRANTED UNDER THE GRAIN STANDARDS ACT ARE SUSPENDED OR
REVOKED, ID., PART 7, P. 10.  THE FEDERAL DEPOSIT INSURANCE CORPORATION
DETERMINES ADMISSIBILITY OF BANKS TO MEMBERSHIP WITHOUT GIVING THE
APPLICANT A HEARING OR FORMAL OPPORTUNITY TO CONTRADICT THE BANK
EXAMINER'S REPORT.  HOWEVER, GROUNDS FOR DISAPPROVAL ARE REPORTED TO
THE APPLICANT.  ID., PART 13, P. 15.  WAR DEPARTMENT OFFICIALS GRANT
HEARINGS ON APPLICATIONS TO CONSTRUCT INSTALLATIONS IN NAVIGABLE
WATERS, EXCEPT WHEN IT IS CLEAR THAT THE APPLICATION SHOULD OR SHOULD
NOT BE GRANTED.  S. DOC. NO. 10, 77TH CONG., 1ST SESS., PART 2, P. 7. 
A 1939 AMENDMENT TO THE SOCIAL SECURITY LAW REQUIRES HEARINGS IN THE
EVENT A CLAIMANT IS DISSATISFIED WITH THE DISPOSITION OF THE CASE BY
THE BUREAU OF OLD-AGE AND SURVIVORS INSURANCE.  ID., PART 3, P. 14. 
THE DEPARTMENT OF THE INTERIOR GRANTS HEARINGS IN ALLOCATING GRAZING
LANDS, ID., PART 7, PP. 9, 10; IN DISPOSING OF APPLICATIONS FOR MINERAL
LEASES, EXCEPT WHERE HEARING WOULD SERVE NO USEFUL PURPOSE, ID., AT 26;
AND IN DETERMINING QUESTIONS OF FACT NECESSARY TO ISSUING MINING
PATENTS, ID., AT 36.  HEARINGS ARE FREQUENTLY EMPLOYED IN
INVESTIGATIONS UNDER FLEXIBLE TARIFF PROCEDURES OF THE TARIFF
COMMISSION, ID., PART 14, P. 12. 

FN17  THE IMPORTANCE OF OPPORTUNITY TO BE HEARD IS RECOGNIZED AS WELL
BY THE ENGLISH COURTS.  THE LEADING CASE IS BOARD OF EDUCATION V. RICE,
(1911) A.C. 179.  LORD LOREBURN SAID IN DICTUM, "IN SUCH CASES THE
BOARD OF EDUCATION WILL HAVE TO ASCERTAIN THE LAW AND ALSO TO ASCERTAIN
THE FACTS.  I NEED NOT ADD THAT IN DOING EITHER THEY MUST ACT IN GOOD
FAITH AND FAIRLY LISTEN TO BOTH SIDES, FOR THAT IS A DUTY LYING UPON
EVERY ONE WHO DECIDES ANYTHING.  ...  THEY CAN OBTAIN INFORMATION IN
ANY WAY THEY THINK BEST, ALWAYS GIVING A FAIR OPPORTUNITY TO THOSE WHO
ARE PARTIES IN THE CONTROVERSY FOR CORRECTING OR CONTRADICTING ANY
RELEVANT STATEMENT PREJUDICIAL TO THEIR VIEW."  ID., AT 182.  THIS
PRINCIPLE HAS BEEN APPROVED IN A LONG LINE OF DECISIONS.  SEE LOCAL
GOVERNMENT BOARD V. ARLIDGE, (1915) A.C. 120, 132-133; GENERAL MEDICAL
COUNCIL V. SPACKMAN, (1943) A.C. 627; ERRINGTON V. MINISTER OF HEALTH,
(1935) 1 K.B. 249; REX V. WESTMINSTER, (1941) 1 K.B. 53.  THE COMMITTEE
ON MINISTERS' POWERS REPORTED IN 1936 THAT WHILE IN ADMINISTRATIVE
DETERMINATION A MINISTER MAY "DEPART FROM THE USUAL FORMS OF LEGAL
PROCEDURE OR FROM THE COMMON LAW RULES OF EVIDENCE, HE OUGHT NOT TO
DEPART FROM OR OFFEND AGAINST 'NATURAL JUSTICE.'"  THREE PRINCIPLES OF
"NATURAL JUSTICE" WERE STATED TO BE THAT "A MAN MAY NOT BE A JUDGE IN
HIS OWN CAUSE," THAT "NO PARTY OUGHT TO BE CONDEMNED UNHEARD," AND THAT
"A PARTY IS ENTITLED TO KNOW THE REASON FOR THE DECISION."  REPORT OF
COMMITTEE ON MINISTERS' POWERS, CMD.  4060, PP. 75-80. 

FN18  MR. JUSTICE HOLMES MADE THIS REMARK IN A LETTER TO MR. ARTHUR
GARFIELD HAYS IN 1928.  SEE BENT, JUSTICE OLIVER WENDELL HOLMES, 312. 

FN19  "IN A GOVERNMENT LIKE OURS, ENTIRELY POPULAR, CARE SHOULD BE
TAKEN IN EVERY PART OF THE SYSTEM, NOT ONLY TO DO RIGHT, BUT TO SATISFY
THE COMMUNITY THAT RIGHT IS DONE."  5 THE WRITINGS AND SPEECHES OF
DANIEL WEBSTER, 163.  THE SAME THOUGHT IS REFLECTED IN A RECENT OPINION
BY THE LORD CHIEF JUSTICE.  A WITNESS IN A CRIMINAL CASE HAD BEEN
INTERROGATED BY THE COURT IN THE ABSENCE OF THE DEFENDANT.  QUASHING
THE CONVICTION, LORD GODDARD SAID:  "THAT IS A MATTER WHICH CANNOT
POSSIBLY BE JUSTIFIED.  I AM NOT SUGGESTING FOR ONE MOMENT THAT THE
JUSTICES HAD ANY SINISTER OR IMPROPER MOTIVE IN ACTING AS THEY DID.  IT
MAY BE THAT THEY SENT FOR THIS OFFICER IN THE INTERESTS OF THE ACCUSED;
IT MAY BE THAT THE INFORMATION WHICH THE OFFICER GAVE WAS IN THE
INTERESTS OF THE ACCUSED.  THAT DOES NOT MATTER.  TIME AND AGAIN THIS
COURT HAS SAID THAT JUSTICE MUST NOT ONLY BE DONE BUT MUST MANIFESTLY
BE SEEN TO BE DONE.  ...  "  REX V. JUSTICES OF BODMIN, (1947) 1 K.B.
321, 325. 

FN20  OTHER EVIDENCE IS FURNISHED BY THE STATE OF NEW YORK.  THE
FEINBERG LAW, COMPARABLE IN PURPOSE AND IN ITS SCHEME TO THE LOYALTY
ORDER, MAKES NOTICE AND HEARING PREREQUISITE TO DESIGNATION OF
ORGANIZATIONS.  SEE THOMPSON V. WALLIN, 301 N.Y. 476, 494, 95 N.E.2D
806, 814-815. 

FN21  ACT OF SEPTEMBER 23, 1950, SECS. 13, 14, 64 STAT. 987, 998,
1001. 

MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN IN THE OPINION OF MR. JUSTICE BURTON, WHICH WOULD
DISPOSE OF THE CASES ON PROCEDURAL GROUNDS, THE COURT HAS DECIDED THEM
ON THE CONSTITUTION.  AND SO I TURN TO THAT ASPECT OF THE CASES. 

THE RESOLUTION OF THE CONSTITUTIONAL QUESTION PRESENTS ONE OF THE
GRAVEST ISSUES OF THIS GENERATION.  THERE IS NO DOUBT IN MY MIND OF THE
NEED FOR THE CHIEF EXECUTIVE AND THE CONGRESS TO TAKE STRONG MEASURES
AGAINST ANY FIFTH COLUMN WORMING ITS WAY INTO GOVERNMENT - A FIFTH
COLUMN THAT HAS ACCESS TO VITAL INFORMATION AND THE PURPOSE TO PARALYZE
AND CONFUSE.  THE PROBLEMS OF SECURITY ARE REAL.  SO ARE THE PROBLEMS
OF FREEDOM.  THE PARAMOUNT ISSUE OF THE AGE IS TO RECONCILE THE TWO. 

IN DAYS OF GREAT TENSION WHEN FEELINGS RUN HIGH, IT IS A TEMPTATION
TO TAKE SHORT-CUTS BY BORROWING FROM THE TOTALITARIAN TECHNIQUES OF OUR
OPPONENTS.  BUT WHEN WE DO, WE SET IN MOTION A SUBVERSIVE INFLUENCE OF
OUR OWN DESIGN THAT DESTROYS US FROM WITHIN.  THE PRESENT CASES,
TOGETHER WITH NO. 49, BAILEY V. RICHARDSON, POST, P. 918, AFFIRMED
TODAY BY AN EQUALLY DIVIDED COURT, ARE SIMPLE ILLUSTRATIONS OF THAT
TREND. 

I DISAGREE WITH MR. JUSTICE JACKSON THAT AN ORGANIZATION - WHETHER IT
BE THESE PETITIONERS, THE AMERICAN RED CROSS, THE CATHOLIC CHURCH, THE
MASONIC ORDER, OR THE BOY SCOUTS - HAS NO STANDING TO OBJECT TO BEING
LABELED "SUBVERSIVE" IN THESE EX PARTE PROCEEDINGS.  THE OPINION OF MR.
JUSTICE FRANKFURTER DISPOSES OF THAT ARGUMENT.  THIS IS NOT AN INSTANCE
OF NAME CALLING BY PUBLIC OFFICIALS.  THIS IS A DETERMINATION OF STATUS
- A PROCEEDING TO ASCERTAIN WHETHER THE ORGANIZATION IS OR IS NOT
"SUBVERSIVE."  THIS DETERMINATION HAS CONSEQUENCES THAT ARE SERIOUS TO
THE CONDEMNED ORGANIZATIONS.  THOSE CONSEQUENCES FLOW IN PART, OF
COURSE, FROM PUBLIC OPINION.  BUT THEY ALSO FLOW FROM ACTIONS OF
REGULATORY AGENCIES THAT ARE MOVING IN THE WAKE OF THE ATTORNEY
GENERAL'S DETERMINATION TO PENALIZE OR POLICE THESE ORGANIZATIONS.  FN1
AN ORGANIZATION BRANDED AS "SUBVERSIVE" BY THE ATTORNEY GENERAL IS
MAIMED AND CRIPPLED.  THE INJURY IS REAL, IMMEDIATE, AND INCALCULABLE. 

THE REQUIREMENTS FOR FAIR TRIALS UNDER OUR SYSTEM OF GOVERNMENT NEED
NO ELABORATION.  A PARTY IS ENTITLED TO KNOW THE CHARGE AGAINST HIM; HE
IS ALSO ENTITLED TO NOTICE AND OPPORTUNITY TO BE HEARD.  THOSE
PRINCIPLES WERE, IN MY OPINION, VIOLATED HERE. 

THE CHARGE THAT THESE ORGANIZATIONS ARE "SUBVERSIVE" COULD BE CLEARLY
DEFINED.  BUT HOW CAN ANYONE IN THE CONTEXT OF THE EXECUTIVE ORDER SAY
WHAT IT MEANS?  IT APPARENTLY DOES NOT NECESSARILY MEAN "TOTALITARIAN,"
"FASCIST" OR "COMMUNIST" BECAUSE THEY ARE SEPARATELY LISTED.  DOES IT
MEAN AN ORGANIZATION WITH SOCIALIST IDEAS?  THERE ARE SOME WHO LUMP
SOCIALISTS AND COMMUNISTS TOGETHER.  DOES IT MEAN AN ORGANIZATION THAT
THINKS THE LOT OF SOME PEASANTS HAS BEEN IMPROVED UNDER SOVIET
AUSPICES?  DOES IT INCLUDE AN ORGANIZATION THAT IS AGAINST THE ACTION
OF THE UNITED NATIONS IN KOREA?  DOES IT EMBRACE A GROUP WHICH ON SOME
ISSUES OF INTERNATIONAL POLICY ALIGNS ITSELF WITH THE SOVIET
VIEWPOINT?  DOES IT MEAN A GROUP WHICH HAS UNWITTINGLY BECOME THE TOOL
FOR SOVIET PROPAGANDA?  DOES IT MEAN ONE INTO WHOSE MEMBERSHIP SOME
COMMUNISTS HAVE INFILTRATED?  OR DOES IT DESCRIBE ONLY AN ORGANIZATION
WHICH UNDER THE GUISE OF HONORABLE ACTIVITIES SERVES AS A FRONT FOR
COMMUNIST ACTIVITIES? 

NO ONE CAN TELL FROM THE EXECUTIVE ORDER WHAT MEANING IS INTENDED. 
NO ONE CAN TELL FROM THE RECORDS OF THE CASES WHICH ONE THE ATTORNEY
GENERAL APPLIED.  THE CHARGE IS FLEXIBLE; IT WILL MEAN ONE THING TO ONE
OFFICER, ANOTHER TO SOMEONE ELSE.  IT WILL BE GIVEN MEANING ACCORDING
TO THE PREDILECTIONS OF THE PROSECUTOR:  "SUBVERSIVE" TO SOME WILL BE
SYNONYMOUS WITH "RADICAL"; "SUBVERSIVE" TO OTHERS WILL BE SYNONYMOUS
WITH "COMMUNIST."  IT CAN BE EXPANDED TO INCLUDE THOSE WHO DEPART FROM
THE ORTHODOX PARTY LINE - TO THOSE WHOSE WORDS AND ACTIONS (THOUGH
COMPLETELY LOYAL) DO NOT CONFORM TO THE ORTHODOX VIEW ON FOREIGN OR
DOMESTIC POLICY.  THESE FLEXIBLE STANDARDS, WHICH VARY WITH THE MOOD OR
POLITICAL PHILOSOPHY OF THE PROSECUTOR, ARE WEAPONS WHICH CAN BE MADE
AS SHARP OR AS BLUNT AS THE OCCASION REQUIRES.  SINCE THEY ARE SUBJECT
TO GRAVE ABUSE, THEY HAVE NO PLACE IN OUR SYSTEM OF LAW.  WHEN WE
EMPLOY THEM, WE PLANT WITHIN OUR BODY POLITIC THE VIRUS OF THE
TOTALITARIAN IDEOLOGY WHICH WE OPPOSE. 

IT IS NOT ENOUGH TO KNOW THAT THE MEN APPLYING THE STANDARD ARE
HONORABLE AND DEVOTED MEN.  THIS IS A GOVERNMENT OF LAWS, NOT OF MEN. 
THE POWERS BEING USED ARE THE POWERS OF GOVERNMENT OVER THE REPUTATIONS
AND FORTUNES OF CITIZENS.  IN SITUATIONS FAR LESS SEVERE OR IMPORTANT
THAN THESE A PARTY IS TOLD THE NATURE OF THE CHARGE AGAINST HIM.  THUS
WHEN A DEFENDANT IS SUMMONED BEFORE A FEDERAL COURT TO ANSWER TO A
CLAIM FOR DAMAGES OR TO A DEMAND FOR AN INJUNCTION AGAINST HIM, THERE
MUST BE A "PLAIN STATEMENT OF THE CLAIM SHOWING THAT THE PLEADER IS
ENTITLED TO RELIEF."  FN2  IF THAT IS NECESSARY FOR EVEN THE MOST MINOR
CLAIM ASSERTED AGAINST A DEFENDANT, WE SHOULD REQUIRE NO LESS WHEN IT
COMES TO DETERMINATIONS THAT MAY WELL DESTROY THE GROUP AGAINST WHOM
THE CHARGE OF BEING "SUBVERSIVE" IS DIRECTED.  FN3  WHEN THE GOVERNMENT
BECOMES THE MOVING PARTY AND LEVELS ITS GREAT POWERS AGAINST THE
CITIZEN, IT SHOULD BE HELD TO THE SAME STANDARDS OF FAIR DEALING AS WE
PRESCRIBE FOR OTHER LEGAL CONTESTS.  TO LET THE GOVERNMENT ADOPT SUCH
LESSER ONES AS SUITS THE CONVENIENCE OF ITS OFFICERS IS TO START DOWN
THE TOTALITARIAN PATH. 

THE TREND IN THAT DIRECTION IS ONLY EMPHASIZED BY THE FAILURE TO GIVE
NOTICE AND HEARING ON THE CHARGES IN THESE CASES AND BY THE PROCEDURE
ADOPTED IN BAILEY V. RICHARDSON, SUPRA. 

NOTICE AND OPPORTUNITY TO BE HEARD ARE FUNDAMENTAL TO DUE PROCESS OF
LAW.  WE WOULD REVERSE THESE CASES OUT OF HAND IF THEY WERE SUITS OF A
CIVIL NATURE TO ESTABLISH A CLAIM AGAINST PETITIONERS.  NOTICE AND
OPPORTUNITY TO BE HEARD ARE INDISPENSABLE TO A FAIR TRIAL WHETHER THE
CASE BE CRIMINAL OR CIVIL.  SEE COE V. ARMOUR FERTILIZER WORKS, 237
U.S. 413, 424; PALKO V. CONNECTICUT, 302 U.S. 319, 327; IN RE OLIVER,
333 U.S. 257, 273.  THE GRAVITY OF THE PRESENT CHARGES IS PROOF ENOUGH
OF THE NEED FOR NOTICE AND HEARING BEFORE THE UNITED STATES OFFICIALLY
BRANDS THESE ORGANIZATIONS AS "SUBVERSIVE."  NO MORE CRITICAL
GOVERNMENTAL RULING CAN BE MADE AGAINST AN ORGANIZATION THESE DAYS.  IT
CONDEMNS WITHOUT TRIAL.  IT DESTROYS WITHOUT OPPORTUNITY TO BE HEARD. 
THE CONDEMNATION MAY IN EACH CASE BE WHOLLY JUSTIFIED.  BUT GOVERNMENT
IN THIS COUNTRY CANNOT BY EDICT CONDEMN OR PLACE BEYOND THE PALE.  THE
RUDIMENTS OF JUSTICE, AS WE KNOW IT, CALL FOR NOTICE AND HEARING - AN
OPPORTUNITY TO APPEAR AND TO REBUT THE CHARGE. 

THE SYSTEM USED TO CONDEMN THESE ORGANIZATIONS IS BAD ENOUGH.  THE
EVIL IS ONLY COMPOUNDED WHEN A GOVERNMENT EMPLOYEE IS CHARGED WITH
BEING DISLOYAL.  ASSOCIATION WITH OR MEMBERSHIP IN AN ORGANIZATION
FOUND TO BE "SUBVERSIVE" WEIGHS HEAVILY AGAINST THE ACCUSED.  HE IS NOT
ALLOWED TO PROVE THAT THE CHARGE AGAINST THE ORGANIZATION IS FALSE. 
THAT CASE IS CLOSED; THAT LINE OF DEFENSE IS TAKEN AWAY.  THE TECHNIQUE
IS ONE OF GUILT BY ASSOCIATION - ONE OF THE MOST ODIOUS INSTITUTIONS OF
HISTORY.  THE FACT THAT THE TECHNIQUE OF GUILT BY ASSOCIATION WAS USED
IN THE PROSECUTIONS AT NUREMBERG  FN4  DOES NOT MAKE IT CONGENIAL TO
OUR CONSTITUTIONAL SCHEME.  GUILT UNDER OUR SYSTEM OF GOVERNMENT IS
PERSONAL.  WHEN WE MAKE GUILT VICARIOUS WE BORROW FROM SYSTEMS ALIEN TO
OURS AND APE OUR ENEMIES.  THOSE SHORT-CUTS MAY AT TIMES SEEM TO SERVE
NOBLE AIMS; BUT WE DEPRECIATE OURSELVES BY INDULGING IN THEM.  WHEN WE
DENY EVEN THE MOST DEGRADED PERSON THE RUDIMENTS OF A FAIR TRIAL, WE
ENDANGER THE LIBERTIES OF EVERYONE.  WE SET A PATTERN OF CONDUCT THAT
IS DANGEROUSLY EXPANSIVE AND IS ADAPTABLE TO THE NEEDS OF ANY MAJORITY
BENT ON SUPPRESSING OPPOSITION OR DISSENSION.    IT IS NOT WITHOUT
SIGNIFICANCE THAT MOST OF THE PROVISIONS OF THE BILL OF RIGHTS ARE
PROCEDURAL.  IT IS PROCEDURE THAT SPELLS MUCH OF THE DIFFERENCE BETWEEN
RULE BY LAW AND RULE BY WHIM OR CAPRICE.  STEADFAST ADHERENCE TO STRICT
PROCEDURAL SAFEGUARDS IS OUR MAIN ASSURANCE THAT THERE WILL BE EQUAL
JUSTICE UNDER LAW.  THE CASE OF DOROTHY BAILEY IS AN EXCELLENT
ILLUSTRATION OF HOW DANGEROUS A DEPARTURE FROM OUR CONSTITUTIONAL
STANDARDS CAN BE.  SHE WAS CHARGED WITH BEING A COMMUNIST AND WITH
BEING ACTIVE IN A COMMUNIST "FRONT ORGANIZATION."  THE REVIEW BOARD
STATED THAT THE CASE AGAINST HER WAS BASED ON REPORTS, SOME OF WHICH
CAME FROM "INFORMANTS CERTIFIED TO US BY THE FEDERAL BUREAU OF
INVESTIGATION AS EXPERIENCED AND ENTIRELY RELIABLE." 

COUNSEL FOR DOROTHY BAILEY ASKED THAT THEIR NAMES BE DISCLOSED.  THAT
WAS REFUSED. 

COUNSEL FOR DOROTHY BAILEY ASKED IF THESE INFORMANTS HAD BEEN ACTIVE
IN A CERTAIN UNION.  THE CHAIRMAN REPLIED, "I HAVEN'T THE SLIGHTEST
KNOWLEDGE AS TO WHO THEY WERE OR HOW ACTIVE THEY HAVE BEEN IN
ANYTHING." 

COUNSEL FOR DOROTHY BAILEY ASKED IF THOSE STATEMENTS OF THE
INFORMANTS WERE UNDER OATH.  THE CHAIRMAN ANSWERED, "I DON'T THINK
SO." 

THE LOYALTY BOARD CONVICTS ON EVIDENCE WHICH IT CANNOT EVEN
APPRAISE.  THE CRITICAL EVIDENCE MAY BE THE WORD OF AN UNKNOWN WITNESS
WHO IS "A PARAGON OF VERACITY, A KNAVE, OR THE VILLAGE IDIOT."  FN5
HIS NAME, HIS REPUTATION, HIS PREJUDICES, HIS ANIMOSITIES, HIS
TRUSTWORTHINESS ARE UNKNOWN BOTH TO THE JUDGE AND TO THE ACCUSED.  THE
ACCUSED HAS NO OPPORTUNITY TO SHOW THAT THE WITNESS LIED OR WAS
PREJUDICED OR VENAL.  WITHOUT KNOWING WHO HER ACCUSERS ARE SHE HAS NO
WAY OF DEFENDING.  SHE HAS NOTHING TO OFFER EXCEPT HER OWN WORD AND THE
CHARACTER TESTIMONY OF HER FRIENDS. 

DOROTHY BAILEY WAS NOT, TO BE SURE, FACED WITH A CRIMINAL CHARGE AND
HENCE NOT TECHNICALLY ENTITLED UNDER THE SIXTH AMENDMENT TO BE
CONFRONTED WITH THE WITNESSES AGAINST HER.  BUT SHE WAS ON TRIAL FOR
HER REPUTATION, HER JOB, HER PROFESSIONAL STANDING.  A DISLOYALTY TRIAL
IS THE MOST CRUCIAL EVENT IN THE LIFE OF A PUBLIC SERVANT.  IF
CONDEMNED, HE IS BRANDED FOR LIFE AS A PERSON UNWORTHY OF TRUST OR
CONFIDENCE.  TO MAKE THAT CONDEMNATION WITHOUT METICULOUS REGARD FOR
THE DECENCIES OF A FAIR TRIAL IS ABHORRENT TO FUNDAMENTAL JUSTICE. 

I DO NOT MEAN TO IMPLY THAT BUT FOR THESE IRREGULARITIES THE SYSTEM
OF LOYALTY TRIALS IS CONSTITUTIONAL.  I DO NOT SEE HOW THE
CONSTITUTIONALITY OF THIS DRAGNET SYSTEM OF LOYALTY TRIALS WHICH HAS
BEEN ENTRUSTED TO THE ADMINISTRATIVE AGENCIES OF GOVERNMENT CAN BE
SUSTAINED.  EVERY GOVERNMENT EMPLOYEE MUST TAKE AN OATH OF LOYALTY. 
FN6  IF HE SWEARS FALSELY, HE COMMITS PERJURY AND CAN BE TRIED IN
COURT.  IN SUCH A TRIAL HE GETS THE FULL PROTECTION OF THE BILL OF
RIGHTS, INCLUDING TRIAL BY JURY AND THE PRESUMPTION OF INNOCENCE.  I AM
INCLINED TO THE VIEW THAT WHEN A DISLOYALTY CHARGE IS SUBSTITUTED FOR
PERJURY AND AN ADMINISTRATIVE BOARD SUBSTITUTED FOR THE COURT "THE
SPIRIT AND THE LETTER OF THE BILL OF RIGHTS" ARE OFFENDED.  FN7 

THE PROBLEM OF SECURITY IS REAL; AND THE GOVERNMENT NEED NOT BE
PARALYZED IN HANDLING IT.  THE SECURITY PROBLEM, HOWEVER, RELATES ONLY
TO THOSE SENSITIVE AREAS WHERE SECRETS ARE OR MAY BE AVAILABLE, WHERE
CRITICAL POLICIES ARE BEING FORMULATED, OR WHERE SABOTAGE CAN BE
COMMITTED.  THE DEPARTMENT HEADS MUST HAVE LEEWAY IN HANDLING THEIR
PERSONNEL PROBLEMS IN THESE SENSITIVE AREAS.  THE QUESTION IS ONE OF
THE FITNESS OR QUALIFICATIONS OF AN INDIVIDUAL FOR A PARTICULAR
POSITION.  ONE CAN BE TRANSFERRED FROM THOSE AREAS EVEN WHEN THERE IS
NO MORE THAN A SUSPICION AS TO HIS LOYALTY.  WE MEET CONSTITUTIONAL
DIFFICULTIES WHEN THE GOVERNMENT UNDERTAKES TO PUNISH BY PROCLAIMING
THE DISLOYALTY OF AN EMPLOYEE AND MAKING HIM INELIGIBLE FOR ANY
GOVERNMENT POST.  THE BRITISH HAVE AVOIDED THOSE DIFFICULTIES BY
APPLYING THE LOYALTY PROCEDURE ONLY IN SENSITIVE AREAS AND IN USING IT
TO TEST THE QUALIFICATIONS OF AN EMPLOYEE FOR A PARTICULAR POST, NOT TO
CONDEMN HIM FOR ALL PUBLIC EMPLOYMENT.  FN8  WHEN WE GO BEYOND THAT
PROCEDURE AND ADOPT THE DRAGNET SYSTEM NOW IN FORCE, WE TRENCH UPON THE
CIVIL RIGHTS OF OUR PEOPLE.  WE CONDEMN BY ADMINISTRATIVE EDICT, RATHER
THAN BY JURY TRIAL.  FN9  OF COURSE, NO ONE HAS A CONSTITUTIONAL RIGHT
TO A GOVERNMENT JOB.  BUT EVERY CITIZEN HAS A RIGHT TO A FAIR TRIAL
WHEN HIS GOVERNMENT SEEKS TO DEPRIVE HIM OF THE PRIVILEGES OF FIRST
CLASS CITIZENSHIP. 

THE EVIL OF THESE CASES IS ONLY EMPHASIZED BY THE PROCEDURE EMPLOYED
IN DOROTHY BAILEY'S CASE.  TOGETHER THEY ILLUSTRATE HOW DEPRIVATION OF
OUR CITIZENS OF FAIR TRIALS IS SUBVERSION FROM WITHIN. 

FN1  THE BUREAU OF INTERNAL REVENUE CANCELED THE TAX-EXEMPT STATUS OF
CONTRIBUTIONS TO EIGHT "SUBVERSIVE" ORGANIZATIONS SHORTLY AFTER THE
ATTORNEY GENERAL'S LIST WAS RELEASED.  THE BUREAU'S ANNOUNCEMENT OF THE
REVOCATION INDICATED THAT THE LISTING PROVIDED THE BASIS FOR IT.
TREASURY DEPT. PRESS RELEASE NO. S-613, FEB. 4, 1948, 5 CCH 1948 FED.
TAX REP. $* 6075. 

THE NEW YORK FEINBERG LAW, DIRECTED AT ELIMINATING MEMBERS OF
SUBVERSIVE ORGANIZATIONS FROM EMPLOYMENT IN THE PUBLIC SCHOOLS,
AUTHORIZES THE BOARD OF REGENTS TO UTILIZE THE ATTORNEY GENERAL'S LIST
IN DRAWING UP ITS OWN LIST OF SUBVERSIVE ORGANIZATIONS.  MEMBERSHIP IN
A LISTED ORGANIZATION IS PRIMA FACIE EVIDENCE OF DISQUALIFICATION. 
LAWS OF NEW YORK, 1949, C. 360, $* 3022(2).  THE NEW YORK
SUPERINTENDENT OF INSURANCE RECENTLY BROUGHT AN ACTION TO DISSOLVE THE
INTERNATIONAL WORKERS ORDER, INC., PETITIONER IN NO. 71, ON THE GROUNDS
THAT IT WAS ON THE ATTORNEY GENERAL'S LIST.  MATTER OF PEOPLE OF THE
STATE OF NEW YORK, MOTION 165, SUPREME COURT OF NEW YORK COUNTY, DEC.
18, 1950.  (SEE 199 MISC. 941.) 

THE MARYLAND OBER LAW REQUIRES CANDIDATES FOR APPOINTIVE OR ELECTIVE
OFFICE TO CERTIFY WHETHER THEY ARE MEMBERS OF "SUBVERSIVE"
ORGANIZATIONS.  LAWS OF MARYLAND, 1949, C. 86, $*$* 10-15.  THE
COMMISSION WHICH DRAFTED THE ACT CONTEMPLATED THAT THE ATTORNEY
GENERAL'S LIST WOULD BE EMPLOYED IN POLICING THESE OATHS.  REPORT OF
COMMISSION ON SUBVERSIVE ACTIVITIES TO GOVERNOR LANE AND THE MARYLAND
GENERAL ASSEMBLY, JANUARY, 1949, P. 43. 

FN2  RULE 8(A), FEDERAL RULES OF CIVIL PROCEDURE. 

FN3  AS MR. JUSTICE FRANKFURTER POINTS OUT, DUE PROCESS REQUIRES NO
LESS.  BUT APART FROM DUE PROCESS IN THE CONSTITUTIONAL SENSE IS THE
POWER OF THE COURT TO PRESCRIBE STANDARDS OF CONDUCT AND PROCEDURE FOR
INFERIOR FEDERAL COURTS AND AGENCIES.  SEE MCNABB V. UNITED STATES, 318
U.S. 332. 

FN4  THE INTERNATIONAL TRIBUNAL TRIED NAZI ORGANIZATIONS TO DETERMINE
WHETHER THEY WERE "CRIMINAL."  ART. 9, CHARTER OF THE INTERNATIONAL
MILITARY TRIBUNAL, NAZI CONSPIRACY AND AGGRESSION, VOL. 1, OFFICE OF
U.S. CHIEF COUNSEL, U.S. GOVERNMENT PRINTING OFFICE (1946) P. 6.  THAT
PROCEDURE, UNLIKE THE PRESENT ONE, PROVIDED THAT ACCUSED ORGANIZATIONS
MIGHT DEFEND THEMSELVES AGAINST THAT CHARGE.  IBID.  BUT THE FINDING OF
GUILT AS TO AN ORGANIZATION WAS BINDING ON AN INDIVIDUAL WHO WAS LATER
BROUGHT TO TRIAL FOR THE CRIME OF MEMBERSHIP IN A CRIMINAL
ORGANIZATION.  ARTICLE 10 PROVIDED:  "IN CASES WHERE A GROUP OR
ORGANIZATION IS DECLARED CRIMINAL BY THE TRIBUNAL, THE COMPETENT
NATIONAL AUTHORITY OF ANY SIGNATORY SHALL HAVE THE RIGHT TO BRING
INDIVIDUALS TO TRIAL FOR MEMBERSHIP THEREIN BEFORE NATIONAL, MILITARY
OR OCCUPATION COURTS.  IN ANY SUCH CASE THE CRIMINAL NATURE OF THE
GROUP OR ORGANIZATION IS CONSIDERED PROVED AND SHALL NOT BE
QUESTIONED."  ID. 

FN5  BARTH, THE LOYALTY OF FREE MEN (1951), P. 109. 

FN6  "THE OATH TO BE TAKEN BY ANY PERSON ELECTED OR APPOINTED TO ANY
OFFICE OF HONOR OR PROFIT EITHER IN THE CIVIL, MILITARY, OR NAVAL
SERVICE, EXCEPT THE PRESIDENT OF THE UNITED STATES SHALL BE AS FOLLOWS:
'I, AB, DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND
THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND
DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; THAT
I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL RESERVATION OR
PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY DISCHARGE THE
DUTIES OF THE OFFICE ON WHICH I AM ABOUT TO ENTER.  SO HELP ME GOD.'" 
23 STAT. 22, R.S. SEC. 1757, 5 U.S.C. SEC. 16.  AND SEE ACT OF SEPT. 6,
1950, PUB. L. NO. 759, SEC. 1209, 64 STAT. 595, 764. 

FN7  SEE THE ADDRESS BY BENJAMIN V. COHEN, 96 CONG. REC. A785, A786. 

FN8  448 H.C. DEB.  1703 ET SEQ., 3418 ET SEQ. (5TH SER.  1947
1948).  THE METICULOUS CARE WITH WHICH THIS SMALL SELECT GROUP IS
HANDLED IS REFLECTED IN THE LETTER OF THE PRIME MINISTER, DATED DEC. 1,
1948, REPORTING ON THE PURGE OF COMMUNISTS AND FASCISTS FROM THE CIVIL
SERVICE.  459 H.C. DEB.  830(5TH SER.  1948-1949). 

THE NUMBER OF CASES CONSIDERED BY THE END OF APRIL, 1950, WAS 86,
CLASSIFIED AS FOLLOWS: 

TRANSFERRED TO NONSECRET DEPARTMENTS .............................
32 

RESIGNED .........................................................
5 

EXONERATED AND REINSTATED ........................................
19 

DISMISSED (INCLUDING ONE FASCIST) ................................
7 

RETIRED FOR HEALTH REASONS BEFORE COMPLETION OF INVESTIGATIONS....
1 

ON SPECIAL LEAVE, EITHER SUB JUDICE OR CONFIRMED COMMUNISTS AWAITING
TRANSFER OR DISMISSAL ...$R22

----

          86 

SEE BRITISH INFORMATION SERVICES, REFERENCE DIVISION, APRIL, 1950. 

FN9  THE CIVIL SERVICE COMMISSION REPORTS AS OF FEBRUARY, 1951, THE
FOLLOWING STATISTICS RELATING TO ADJUDICATIONS OF LOYALTY UNDER
EXECUTIVE ORDER NO. 9835 OF MARCH 21, 1947: 

TOTAL CASES RECEIVED BY LOYALTY BOARDS...................  14,910 

LESS:  CASES WHERE EMPLOYEE LEFT THE SERVICE DURING 

INVESTIGATIONS ..........................................   1,722

                -------- 

CASES RECEIVE FOR ADJUDICATION ..........................  13,188 

LESS:  CASES WHERE EMPLOYEE THEREAFTER RESIGNED .........   1,331 

FIELD INVESTIGATION REPORTS PENDING IN LOYALTY BOARDS ...   1.060 

CASES IN DEPARTMENT OF THE ARMY .........................   1,304 

CASES ADJUDICATED........................................   9,493 

ELIGIBLE DETERMINATION ..................................  8,964 

INELIGIBLE, EXCLUDING 20 CASES ON REVIEW ................     529 

DISPOSITION OF INELIGIBLES: 

DISMISSED ...............................................     307 

RESTORED AFTER APPEAL ...................................     197 

REMANDED AFTER APPEAL....................................  19 

ON APPEAL ...............................................      26 

MR. JUSTICE JACKSON, CONCURRING. 

IT IS UNFORTUNATE THAT THIS COURT SHOULD FLOUNDER IN WORDY
DISAGREEMENT OVER THE VALIDITY AND EFFECT OF PROCEDURES WHICH HAVE
ALREADY BEEN PURSUED FOR SEVERAL YEARS.  THE EXTRAVAGANCE OF SOME OF
THE VIEWS EXPRESSED AND THE INTEMPERANCE OF THEIR STATEMENT MAY CREATE
A SUSPICION THAT THE DECISION OF THE CASE DOES NOT RISE ABOVE THE
POLITICAL CONTROVERSY THAT ENGENDERED IT. 

MR. JUSTICE BURTON, AND THOSE FOR WHOM HE SPEAKS, WOULD RESCUE THE
LOYALTY ORDER FROM INQUIRY AS TO ITS VALIDITY BY SPELLING OUT AN
ADMISSION BY THE ATTORNEY GENERAL THAT IT HAS BEEN ARBITRARILY
MISAPPLIED.  MR. JUSTICE BLACK WOULD HAVE US HOLD THAT LISTING BY THE
ATTORNEY GENERAL OF ORGANIZATIONS ALLEGED TO BE SUBVERSIVE IS THE
EQUIVALENT OF A BILL OF ATTAINDER FOR TREASON AFTER THE FASHION OF
THOSE OF THE STUART KINGS, WHILE MR. JUSTICE REED CONTENDS, IN
SUBSTANCE, THAT THE DESIGNATION IS A MERE PRESS RELEASE WITHOUT LEGAL
CONSEQUENCES. 

IF THE COURT AGREED THAT AN ACCUSED EMPLOYEE COULD CHALLENGE THE
DESIGNATION, ITS EFFECT WOULD BE ONLY ADVISORY OR PRIMA FACIE; BUT AS I
POINT OUT LATER, THE COURT REFUSES SO TO LIMIT THE EFFECT OF THE
DESIGNATION.  IN VIEW OF THESE AND OTHER DIVERSIFIED OPINIONS, NONE OF
WHICH HAS ATTRACTED SUFFICIENT ADHERENTS FOR A COURT AND NONE OF WHICH
I CAN FULLY ACCEPT, I SHALL STATE RATHER THAN ARGUE MY VIEW OF THE
MATTER. 

1.  THE LOYALTY ORDER DOES AFFECT SUBSTANTIVE LEGAL RIGHTS.  - I
AGREE THAT MERE DESIGNATION AS SUBVERSIVE DEPRIVES THE ORGANIZATIONS
THEMSELVES OF NO LEGAL RIGHT OR IMMUNITY.  BY IT THEY ARE NOT
DISSOLVED, SUBJECTED TO ANY LEGAL PROSECUTION, PUNISHED, PENALIZED, OR
PROHIBITED FROM CARRYING ON ANY OF THEIR ACTIVITIES.  THEIR CLAIM OF
INJURY IS THAT THEY CANNOT ATTRACT AUDIENCES, ENLIST MEMBERS, OR OBTAIN
CONTRIBUTIONS AS READILY AS BEFORE.  THESE, HOWEVER, ARE SANCTIONS
APPLIED BY PUBLIC DISAPPROVAL, NOT BY LAW.  IT IS QUITE TRUE THAT THE
POPULAR CENSURE IS FOCUSED UPON THEM BY THE ATTORNEY GENERAL'S
CHARACTERIZATION.  BUT THE RIGHT OF PRIVACY DOES NOT EXTEND TO
ORGANIZED GROUPS OR ASSOCIATIONS WHICH SOLICIT FUNDS OR MEMBERSHIPS OR
TO CORPORATIONS DEPENDENT UPON THE STATE FOR THEIR CHARTERS.  FN1  THE
RIGHT OF INDIVIDUALS TO ASSEMBLE IS ONE THING; THE CLAIM THAT AN
ORGANIZATION OF SECRET UNDISCLOSED CHARACTER MAY CONDUCT PUBLIC DRIVES
FOR FUNDS OR MEMBERSHIPS IS ANOTHER.  THEY MAY BE FREE TO SOLICIT,
PROPAGANDIZE, AND HOLD MEETINGS, BUT THEY ARE NOT FREE FROM PUBLIC
CRITICISM OR EXPOSURE.  IF THE ONLY EFFECT OF THE LOYALTY ORDER WAS
THAT SUFFERED BY THE ORGANIZATIONS, I SHOULD THINK THEIR RIGHT TO
RELIEF VERY DUBIOUS. 

BUT THE REAL TARGET OF ALL THIS PROCEDURE IS THE GOVERNMENT EMPLOYEE
WHO IS A MEMBER OF, OR SYMPATHETIC TO, ONE OR MORE ACCUSED
ORGANIZATIONS.  HE NOT ONLY MAY BE DISCHARGED, BUT DISQUALIFIED FROM
EMPLOYMENT, UPON NO OTHER GROUND THAN SUCH MEMBERSHIP OR SYMPATHETIC
AFFILIATION.  AND HE CANNOT ATTACK THE CORRECTNESS OF THE ATTORNEY
GENERAL'S DESIGNATION IN ANY LOYALTY PROCEEDING.  FN2    ORDINARY
DISMISSALS FROM GOVERNMENT SERVICE WHICH VIOLATE NO FIXED TENURE
CONCERN ONLY THE EXECUTIVE BRANCH, AND COURTS WILL NOT REVIEW SUCH
DISCRETIONARY ACTION.  FN3  HOWEVER, THESE ARE NOT DISCRETIONARY
DISCHARGES BUT DISCHARGES PURSUANT TO AN ORDER HAVING FORCE OF LAW. 
ADMINISTRATIVE MACHINERY IS PUBLICLY SET UP TO COMB THE WHOLE
GOVERNMENT SERVICE  FN4  TO DISCHARGE PERSONS OR TO DECLARE THEM
INELIGIBLE FOR EMPLOYMENT UPON AN INCONTESTABLE FINDING, MADE WITHOUT
HEARING, THAT SOME ORGANIZATION IS SUBVERSIVE.  TO BE DEPRIVED NOT ONLY
OF PRESENT GOVERNMENT EMPLOYMENT BUT OF FUTURE OPPORTUNITY FOR IT
CERTAINLY IS NO SMALL INJURY WHEN GOVERNMENT EMPLOYMENT SO DOMINATES
THE FIELD OF OPPORTUNITY. 

THE FACT THAT ONE MAY NOT HAVE A LEGAL RIGHT TO GET OR KEEP A
GOVERNMENT POST DOES NOT MEAN THAT HE CAN BE ADJUDGED INELIGIBLE
ILLEGALLY.  PERKINS V. ELG.  FN5 

2.  TO PROMULGATE WITH FORCE OF LAW A CONCLUSIVE FINDING OF
DISLOYALTY, WITHOUT HEARING AT SOME STAGE BEFORE SUCH FINDING BECOMES
FINAL, IS A DENIAL OF DUE PROCESS OF LAW.  - ON THIS SUBJECT, I AGREE
WITH THE OPINION OF MR. JUSTICE FRANKFURTER.  THAT THE SAFEGUARD OF A
HEARING WOULD NOT DEFEAT THE EFFECTIVENESS OF A LOYALTY PROGRAM IS
APPARENTLY THE JUDGMENT OF CONGRESS AND OF STATE LEGISLATURES, FOR, AS
HE POINTS OUT, BOTH CONGRESSIONAL AND STATE LOYALTY LEGISLATION
RECOGNIZE THE RIGHT. 

3.  THE ORGANIZATIONS MAY VINDICATE UNCONSTITUTIONAL DEPRIVATION OF
MEMBERS' RIGHTS.  - THERE ARE TWO STAGES AT WHICH ADMINISTRATIVE
HEARINGS COULD PROTECT INDIVIDUALS' LEGAL RIGHTS - ONE IS BEFORE AN
ORGANIZATION IS DESIGNATED AS SUBVERSIVE, THE OTHER IS WHEN THE
INDIVIDUAL, BECAUSE OF MEMBERSHIP, IS ACCUSED OF DISLOYALTY.  EITHER
CHOICE MIGHT BE A PERMISSIBLE SOLUTION OF A DIFFICULT PROBLEM INHERENT
IN SUCH AN EXTENSIVE PROGRAM.  BUT AN EQUALLY DIVIDED COURT TODAY,
ERRONEOUSLY, I THINK REJECTS THE CLAIM THAT THE INDIVIDUAL HAS HEARING
RIGHTS.  FN6  I AM UNABLE TO COMPREHEND THE PROCESS BY WHICH THOSE WHO
THINK THE ATTORNEY GENERAL'S DESIGNATION IS NO MORE THAN A PRESS
RELEASE CAN FORECLOSE ATTACK UPON IT IN THE EMPLOYEES' CASE.  ALSO
BEYOND MY UNDERSTANDING IS HOW A COURT WHOSE COLLECTIVE OPINION IS THAT
THE DESIGNATIONS ARE SUBJECT TO JUDICIAL INQUIRY CAN AT THE SAME TIME
SAY THAT A DISCHARGE BASED AT LEAST IN PART ON THEM IS NOT. 

BY THE PROCEDURES OF THIS LOYALTY ORDER, BOTH GROUPS AND INDIVIDUALS
MAY BE LABELED DISLOYAL AND SUBVERSIVE.  THE COURT GRANTS JUDICIAL
REVIEW AND RELIEF TO THE GROUP WHILE REFUSING IT TO THE INDIVIDUAL.  SO
FAR AS I RECALL, THIS IS THE FIRST TIME THIS COURT HAS HELD RIGHTS OF
INDIVIDUALS SUBORDINATE AND INFERIOR TO THOSE OF ORGANIZED GROUPS.  I
THINK THAT IS AN INVERTED VIEW OF THE LAW - IT IS JUSTICE TURNED BOTTOM
SIDE UP. 

I HAVE BELIEVED THAT A CORPORATION CAN MAINTAIN AN ACTION TO PROTECT
RIGHTS UNDER THE DUE PROCESS OR EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT, E.G., WHEELING STEEL CORP. V. GLANDER, 337 U.S.
562, 574.  THE ONLY PRACTICAL JUDICIAL POLICY WHEN PEOPLE POOL THEIR
CAPITAL, THEIR INTERESTS, OR THEIR ACTIVITIES UNDER A NAME AND FORM
THAT WILL IDENTIFY COLLECTIVE INTERESTS, OFTEN IS TO PERMIT THE
ASSOCIATION OR CORPORATION IN A SINGLE CASE TO VINDICATE THE INTERESTS
OF ALL. 

THIS PROCEDURE IS APPROPRIATE HERE WHERE THE GOVERNMENT HAS LUMPED
ALL THE MEMBERS' INTERESTS IN THE ORGANIZATION SO THAT CONDEMNATION OF
THE ONE WILL REACH ALL.  THE GOVERNMENT PROCEEDS ON THE BASIS THAT EACH
OF THESE ASSOCIATIONS IS SO IDENTICAL WITH ITS MEMBERS THAT THE
SUBVERSIVE PURPOSE AND INTENTS OF THE ONE MAY BE ATTRIBUTED TO AND MADE
CONCLUSIVE UPON THE OTHER.  HAVING ADOPTED THIS PROCEDURE IN THE
EXECUTIVE DEPARTMENT, I THINK THE GOVERNMENT CAN HARDLY ASK THE
JUDICIAL DEPARTMENT TO DENY THE STANDING OF THE ORGANIZATIONS TO
VINDICATE ITS MEMBERS' RIGHTS. 

UNLESS A HEARING IS PROVIDED IN WHICH THE ORGANIZATION CAN PRESENT
EVIDENCE AS TO ITS CHARACTER, A PRESUMPTION OF DISLOYALTY IS ENTERED
AGAINST ITS EVERY MEMBER-EMPLOYEE, AND BECAUSE OF IT, HE MAY BE BRANDED
DISLOYAL, DISCHARGED, AND RENDERED INELIGIBLE FOR GOVERNMENT SERVICE. 
I WOULD REVERSE THE DECISIONS FOR LACK OF DUE PROCESS IN DENYING A
HEARING AT ANY STAGE. 

FN1  UNITED STATES V. MORTON SALT CO., 338 U.S. 632, 652. 

FN2  "BOARDS  ...  SHOULD NOT ENTER UPON ANY EVIDENTIAL INVESTIGATION
OF THE NATURE OF ANY OF THE ORGANIZATIONS IDENTIFIED IN THE ATTORNEY
GENERAL'S LIST, FOR THE PURPOSE OF ATTACKING, CONTRADICTING, OR
MODIFYING THE CONTROLLING CONCLUSION REACHED BY THE ATTORNEY GENERAL IN
SUCH LIST.  ...  (THE) BOARD SHOULD PERMIT NO EVIDENCE OR ARGUMENT
BEFORE IT ON THE POINT."  LOYALTY REVIEW BOARD, MEMORANDUM NO. 2, MARCH
9, 1948. 

FN3  EBERLEIN V. UNITED STATES, 257 U.S. 82; KEIM V. UNITED STATES,
177 U.S. 290. 

THIS IS TRUE, ALTHOUGH REASONS STATED ARE ALLEGED TO BE FALSE OR THE
OFFICER TAKING THE ACTION IS ALLEGED TO HAVE ACTED IN A BIASED,
PREJUDICIAL AND UNFAIR MANNER.  GOLDING V. UNITED STATES, 78 CT. CL.
682, 685; CERT. DENIED, 292 U.S. 643. 

FN4  "A TOTAL OF 3,166 GOVERNMENT EMPLOYEES HAVE QUIT OR HAVE BEEN
DISCHARGED UNDER PRESIDENT TRUMAN'S LOYALTY PROGRAM SINCE IT BEGAN
MARCH 21, 1947, THE LOYALTY REVIEW BOARD REPORTED TODAY. 

"OF THESE, 294 ACTUALLY WERE DISCHARGED FOR DISLOYALTY.  THE
REMAINDER, 2,872, QUIT WHILE UNDER INVESTIGATION AND MIGHT OR MIGHT NOT
HAVE BEEN FOUND DISLOYAL."  NEW YORK TIMES, JANUARY 16, 1951. 

FN5  307 U.S. 325, 349.  THAT WAS AN ACTION TO MANDAMUS THE SECRETARY
OF STATE TO ISSUE A PASSPORT, TO WHICH IT WAS CONCEDED MISS ELG HAD NO
LEGAL RIGHT, ITS ISSUANCE BEING WHOLLY WITHIN EXECUTIVE DISCRETION
WHICH THE COURTS WOULD NOT ATTEMPT TO CONTROL.  CHIEF JUSTICE HUGHES
POINTED OUT, HOWEVER, THAT ITS DENIAL TO MISS ELG WAS NOT GROUNDED IN
THE SECRETARY'S GENERAL DISCRETION BUT "SOLELY ON THE GROUND THAT SHE
HAD LOST HER NATIVE BORN AMERICAN CITIZENSHIP."  FINDING THAT GROUND
UNTENABLE, THIS COURT DIRECTED ITS DECREE AGAINST THE SECRETARY.  THE
SECRETARY MIGHT SAY SHE WOULD GET NO PASSPORT, BUT HE COULD NOT, FOR
UNJUSTIFIABLE REASONS, SAY SHE WAS INELIGIBLE FOR ONE. 

FN6  BAILEY V. RICHARDSON, 341 U.S. 918. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE MINTON
JOIN, DISSENTING. 

THE THREE ORGANIZATIONS NAMED IN THE CAPTION, TOGETHER WITH CERTAIN
OTHER GROUPS AND INDIVIDUALS, FILED SUITS IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA PRIMARILY TO HAVE DECLARED
UNCONSTITUTIONAL EXECUTIVE ORDER NO. 9835, MARCH 21, 1947, 12 FED. REG.
1935, AS APPLIED AGAINST THESE PETITIONERS.  ACTING UNDER PART III,
SEC. 3 OF EXECUTIVE ORDER NO. 9835, NOTE 3, INFRA, THE ATTORNEY
GENERAL, ON NOVEMBER 24, 1947, TRANSMITTED THE REQUIRED LIST OF
ORGANIZATIONS TO THE LOYALTY REVIEW BOARD.  THIS LIST INCLUDED THE
THREE ABOVE-NAMED ORGANIZATIONS.  THE BOARD PROMPTLY DISSEMINATED THE
INFORMATION TO ALL DEPARTMENTS AND AGENCIES.  IT WAS PUBLISHED AS
APPENDIX A TO TITLE 5, ADMINISTRATIVE PERSONNEL, CFR SEC.
210.11(B)(6).  13 FED. REG. 1471.  LATER, SEPTEMBER 17, 1948, THE THREE
ORGANIZATIONS WERE DESIGNATED BY THE ATTORNEY GENERAL AS "COMMUNIST." 
13 FED. REG. 6135.  THE RELIEF SOUGHT BY PETITIONERS WAS TO HAVE THE
NAMES OF THE ORGANIZATIONS DELETED FROM THE ALLEGEDLY
UNCONSTITUTIONALLY CREATED LISTS BECAUSE OF THE OBVIOUS HARM TO THEIR
ACTIVITIES BY REASON OF THEIR DESIGNATION. 

THE LIST WAS TRANSMITTED TO THE BOARD BY THE ATTORNEY GENERAL AS A
PART OF THE PLAN OF THE PRESIDENT, BROADLY SET FORTH IN EXECUTIVE ORDER
NO. 9835, TO FURNISH MAXIMUM PROTECTION "AGAINST INFILTRATION OF
DISLOYAL PERSONS INTO THE RANKS OF (GOVERNMENT) EMPLOYEES, AND EQUAL
PROTECTION FROM UNFOUNDED ACCUSATIONS OF DISLOYALTY" FOR THE LOYAL
EMPLOYEES.  12 FED. REG. 1935.  EXECUTIVE ORDER NO. 9835 CAME AFTER
LONG CONSIDERATION OF THE PROBLEMS OF POSSIBLE DAMAGE TO THE GOVERNMENT
FROM DISLOYALTY AMONG ITS EMPLOYEES.  92 CONG. REC. 9601.  SEE THE
REPORT OF THE PRESIDENT'S TEMPORARY COMMISSION ON EMPLOYEE LOYALTY
(APPOINTED 1946), P. 23: 

"THE PRESENCE WITHIN THE GOVERNMENT OF ANY DISLOYAL OR SUBVERSIVE
PERSONS, OR THE ATTEMPT BY ANY SUCH PERSONS TO OBTAIN GOVERNMENT
EMPLOYMENT, PRESENTS A PROBLEM OF SUCH IMPORTANCE THAT IT MUST BE DEALT
WITH VIGOROUSLY AND EFFECTIVELY." 

A LIST OF SUBVERSIVE ORGANIZATIONS UNDER EXECUTIVE ORDER NO. 9300, 3
CFR, 1943 CUM. SUPP., 1252, WAS LIKEWISE DISSEMINATED TO GOVERNMENT
AGENCIES.  13 FED. REG. 1473.  GREAT BRITAIN (SEE NOTE 31, INFRA),
AUSTRALIA (ACT OF OCTOBER 20, 1950), NEW ZEALAND (DEYNZER V. CAMPBELL,
(1950) N.Z.L.R. 790; 37TH REP., PUBLIC SERVICE COMM'N, NEW ZEALAND,
1949, P. 14; 38TH REP., PUBLIC SERVICE COMM'N, NEW ZEALAND, 1950, P.
12), AND THE UNION OF SOUTH AFRICA (ACT NO. 44 OF 1950) HAVE TAKEN
LEGISLATIVE OR ADMINISTRATIVE STEPS TO CONTROL DISLOYALTY AMONG
GOVERNMENT EMPLOYEES.  SEE THE REPORT OF THE ROYAL COMMISSION (CANADA)
APPOINTED UNDER ORDER IN COUNCIL, P.C. 411, FEBRUARY 5, 1946.  THE
METHOD OF DEALING WITH COMMUNISM AND COMMUNISTS ADOPTED BY THE
COMMONWEALTH OF AUSTRALIA WAS HELD BEYOND THE POWERS OF THAT
GOVERNMENT.  AUSTRALIAN COMMUNIST PARTY V. COMMONWEALTH, DECISION OF
FRIDAY, MARCH 9, 1951, 83 C.L.R. 1. 

THE PROCEDURE FOR DESIGNATING THESE PETITIONERS AS COMMUNISTS MAY BE
SUMMARIZED AS FOLLOWS: EXECUTIVE ORDER NO. 9835, PART III, WAS ISSUED
BY THE PRESIDENT AS CHIEF EXECUTIVE, "IN THE INTEREST OF THE INTERNAL
MANAGEMENT OF THE GOVERNMENT" AND UNDER THE CIVIL SERVICE ACT OF 1883,
22 STAT. 403, AS AMENDED, AND SEC. 9A OF THE HATCH ACT, 5 U.S.C. (SUPP.
II) SEC. 118J.  THE FORMER ACTS GIVE GENERAL REGULATORY POWERS OVER THE
EMPLOYMENT AND DISCHARGE OF GOVERNMENT PERSONNEL; THE LATTER IS MORE
SPECIFIC.  FN1  THESE PRESENT CASES DO NOT INVOLVE THE REMOVAL OF ANY
EMPLOYEE.  THE ORDER REQUIRED INVESTIGATION OF THE LOYALTY OF
APPLICANTS FOR GOVERNMENT EMPLOYMENT AND SIMILAR INVESTIGATION OF
PRESENT EMPLOYEES.  TO ASSURE UNIFORMITY AND FAIRNESS THROUGHOUT THE
GOVERNMENT IN THE INVESTIGATION OF EMPLOYEES, A LOYALTY REVIEW BOARD
WAS CREATED TO REVIEW LOYALTY CASES FROM ANY DEPARTMENT OR AGENCY,
DISSEMINATE INFORMATION PERTINENT TO EMPLOYEE LOYALTY PROGRAMS, AND
ADVISE THE HEADS THEREOF.  STANDARDS WERE PROVIDED FOR EMPLOYMENT AND
DISCHARGE.  SO FAR AS PERTINENT TO THE OBJECTIONS OF PETITIONER TO
INCLUSION ON THE LIST OF SUBVERSIVE AND COMMUNIST ORGANIZATIONS, THEY
APPEAR IN NOTE 3 AND IN THE NOTE BELOW.  FN2  IT WAS APPARENTLY TO
AVOID THE NECESSITY OF CONTINUOUS REEXAMINATION BY ALL GOVERNMENT
DEPARTMENTS AND AGENCIES OF THE CHARACTERISTICS OF ORGANIZATIONS
SUSPECTED OF AIMS INIMICAL TO THE GOVERNMENT THAT PROVISION WAS MADE IN
THE ORDER FOR EXAMINATION AND DESIGNATION OF SUCH ORGANIZATIONS BY THE
ATTORNEY GENERAL.  12 FED. REG. 1938, PART III, SEC. 3.  FN3 IT WAS
UNDER THIS PLAN THAT THE ATTORNEY GENERAL MADE HIS DESIGNATIONS. 

THE DESIGNATIONS MADE AVAILABLE FOR THE USE OF THE LOYALTY REVIEW
BOARD AND THE DEPARTMENTAL OR AGENCY LOYALTY BOARDS, THE RESULT OF THE
INVESTIGATION OF THE ATTORNEY GENERAL INTO THE CHARACTER OF
ORGANIZATIONS THAT MIGHT FALL UNDER SUSPICION AS TOTALITARIAN, FASCIST,
COMMUNIST OR SUBVERSIVE.  THE LIST DOES NOT FURNISH A BASIS FOR ANY
COURT ACTION AGAINST THE ORGANIZATIONS SO DESIGNATED.  IT OF COURSE
MIGHT FOLLOW FROM DISCOVERY OF FACTS BY THE INVESTIGATION THAT CRIMINAL
OR CIVIL PROCEEDINGS WOULD BE BEGUN TO ENFORCE AN APPLICABLE CRIMINAL
STATUTE OR TO CANCEL THE FRANCHISE OR SOME LICENSE OF A LISTED
ORGANIZATION.  IN SUCH A PROCEEDING, HOWEVER, THE ACCUSED ORGANIZATION
WOULD HAVE THE USUAL PROTECTIONS OF ANY DEFENDANT.  THE LIST IS
EVIDENCE ONLY OF THE CHARACTER OF THE LISTED ORGANIZATIONS IN
PROCEEDINGS BEFORE LOYALTY BOARDS TO DETERMINE WHETHER "REASONABLE"
GROUNDS EXIST FOR BELIEF "THAT THE EMPLOYEE UNDER CONSIDERATION" IS
DISLOYAL TO THE GOVERNMENT OF THE UNITED STATES.  SEE NOTE 2, SUPRA.
THE NAMES WERE PLACED ON THE LIST BY THE ATTORNEY GENERAL AFTER
INVESTIGATION.  IF LEGALLY PERMISSIBLE, AS CARRIED OUT BY THE ATTORNEY
GENERAL, THERE IS NO QUESTION BUT THAT A SINGLE INVESTIGATION AS TO THE
CHARACTER OF AN ORGANIZATION IS PREFERABLE TO ONE BY EACH OF THE MORE
THAN A HUNDRED AGENCIES OF GOVERNMENT THAT ARE CATALOGUED IN THE UNITED
STATES GOVERNMENT ORGANIZATION MANUAL.  TO REQUIRE A DETERMINATION AS
TO EACH ORGANIZATION FOR THE ADMINISTRATIVE HEARING OF EACH EMPLOYEE
INVESTIGATED FOR DISLOYALTY WOULD BE IMPOSSIBLE.  THE EMPLOYEE'S
ASSOCIATION WITH A LISTED ORGANIZATION DOES NOT, UNDER THE ORDER,
ESTABLISH, EVEN PRIMA FACIE, REASONABLE GROUNDS FOR BELIEF IN THE
EMPLOYEE'S DISLOYALTY.  FN4 

NONE OF THE COMPLAINTS DENY THAT THE ATTORNEY GENERAL MADE AN
"INVESTIGATION" OF THE ORGANIZATIONS TO DETERMINE WHETHER OR NOT THEY
WERE TOTALITARIAN, FASCIST, COMMUNIST OR SUBVERSIVE AS REQUIRED BY PART
III, SEC. 3, OR THAT HE HAD MATERIAL INFORMATION CONCERNING DISLOYAL
ACTIVITIES ON THEIR PART.  THE COUNCIL CAME THE NEAREST TO SUCH AN
ALLEGATION IN THE QUOTED EXCERPTS FROM THEIR COMPLAINT IN NOTE 10, BUT
WE READ THEM AS NO MORE THAN ALLEGATIONS OF UNCONSTITUTIONALITY BECAUSE
"INVESTIGATION" WITHOUT NOTICE AND HEARING IS NOT "APPROPRIATE." 
CERTAINLY THERE IS NO SPECIFIC ALLEGATION OF THE WAY IN WHICH THE
ATTORNEY GENERAL FAILED TO FOLLOW THE ORDER.  WE THEREFORE ASSUME THAT
THE DESIGNATION WAS MADE AFTER APPROPRIATE INVESTIGATION AND
DETERMINATION.  FN5 

NO OBJECTION IS OR COULD REASONABLY BE MADE IN THE RECORDS OR BRIEFS
TO AN EXAMINATION BY THE GOVERNMENT INTO THE LOYALTY OF ITS EMPLOYEES. 
ALTHOUGH THE FOUNDERS OF THIS REPUBLIC REBELLED AGAINST THEIR
ESTABLISHED GOVERNMENT OF ENGLAND AND WON OUR FREEDOM, THE CREATION OF
OUR OWN CONSTITUTIONAL GOVERNMENT ENDOWED THAT NEW GOVERNMENT, THE
UNITED STATES OF AMERICA, WITH THE RIGHT AND DUTY TO PROTECT ITS
EXISTENCE AGAINST ANY FORCE THAT SEEKS ITS OVERTHROW OR CHANGES IN ITS
STRUCTURE BY OTHER THAN CONSTITUTIONAL MEANS.  TOLERANT AS WE ARE OF
ALL POLITICAL EFFORTS BY ARGUMENT OR PERSUASION TO CHANGE THE BASIS OF
OUR SOCIAL, ECONOMIC OR POLITICAL LIFE, THE LINE IS DRAWN SHARPLY AND
CLEARLY AT ANY ACT OR INCITEMENT TO ACT IN VIOLATION OF OUR
CONSTITUTIONAL PROCESSES.  SURELY THE GOVERNMENT NEED NOT AWAIT AN
EMPLOYEE'S CONVICTION OF A CRIME INVOLVING DISLOYALTY BEFORE SEPARATING
HIM FROM PUBLIC SERVICE.  GOVERNMENTS CANNOT BE INDIFFERENT TO
MANIFESTATIONS OF SUBVERSION.  AS SOON AS THESE ARE SIGNIFICANT ENOUGH
REASONABLY TO CAUSE CONCERN AS TO THE LIKELIHOOD OF ACTION, THE DUTY TO
PROTECT THE STATE COMPELS THE EXERTION OF GOVERNMENTAL POWER.  NOT TO
MOVE WOULD BRAND A GOVERNMENT WITH A DANGEROUS WEAKNESS OF WILL.  THE
DETERMINATION OF THE TIME FOR ACTION RESTS WITH THE EXECUTIVE AND
LEGISLATIVE ARMS.  AN OBJECTION TO CONSIDERATION OF AN EMPLOYEE'S
SYMPATHETIC ASSOCIATION WITH AN ADMITTED TOTALITARIAN, FASCIST,
COMMUNIST OR SUBVERSIVE GROUP, AS BEARING UPON THE PROPRIETY OF HIS
RETENTION OR EMPLOYMENT AS A GOVERNMENT EMPLOYEE WOULD HAVE NO BETTER
STANDING.  THE ORDER GIVES CONCLUSIVE INDICATION OF THE TYPE OF
ORGANIZATION THAT IS MEANT BY THE FOUR WORD-LABELS.  FN6  FOLLOWING
THEM IN PART III, SEC. 3, 12 FED. REG. 1938, ARE THE WORDS, "OR AS
HAVING ADOPTED A POLICY OF ADVOCATING OR APPROVING THE COMMISSION OF
ACTS OF FORCE OR VIOLENCE TO DENY OTHERS THEIR RIGHTS UNDER THE
CONSTITUTION OF THE UNITED STATES, OR AS SEEKING TO ALTER THE FORM OF
GOVERNMENT OF THE UNITED STATES BY UNCONSTITUTIONAL MEANS."  BRACKETED
WITH MEMBERSHIP IN LISTED ORGANIZATIONS (EXEC. ORDER NO. 9835, PART V)
AS ACTIVITIES FOR CONSIDERATION IN DETERMINING AN EMPLOYEE'S LOYALTY
ARE THOSE LISTED BELOW.  THESE ARE THE STANDARDS THAT DEFINE THE TYPE
OF ORGANIZATION SUBJECT TO DESIGNATION.  FN7  OF COURSE, THE ORDER
MEANS THAT A COMMUNIST OR SUBVERSIVE ORGANIZATION IS OF THE SAME
GENERAL CHARACTER AS ONE THAT SEEKS TO ALTER OUR FORM OF GOVERNMENT BY
UNCONSTITUTIONAL MEANS, 13 FED. REG. 6137, TO WIT BY FORCE AND
VIOLENCE. 

PROCEDURE UNDER THE EXECUTIVE ORDER DOES NOT REQUIRE "PROOF" IN THE
SENSE OF A COURT PROCEEDING THAT THESE COMMUNIST ORGANIZATIONS TEACH OR
INCITE TO FORCE AND VIOLENCE TO OBTAIN THEIR OBJECTIVES.  FN8  WHAT IS
REQUIRED BY THE ORDER IS AN EXAMINATION AND DETERMINATION BY THE
ATTORNEY GENERAL THAT THESE ORGANIZATIONS ARE "COMMUNIST."  THE
DESCRIPTION "COMMUNIST" IS ADEQUATE FOR THE PURPOSES OF INQUIRY AND
LISTING.  NO SUCH PRECISION OF DEFINITION IS NECESSARY AS A CRIMINAL
PROSECUTION MIGHT REQUIRE.  CF. UNITED STATES V. CHEMICAL FOUNDATION,
272 U.S. 1, 14.  COMMUNISM IS WELL UNDERSTOOD TO MEAN A GROUP SEEKING
TO OVERTHROW BY FORCE AND VIOLENCE GOVERNMENTS SUCH AS OURS AND TO
ESTABLISH A NEW GOVERNMENT BASED ON PUBLIC OWNERSHIP AND DIRECTION OF
PRODUCTIVE PROPERTY.  UNDOUBTEDLY, THERE ARE REASONABLE GROUNDS TO
CONCLUDE THAT ACCEPTED HISTORY TEACHES THAT REVOLUTION BY FORCE AND
VIOLENCE TO ACCOMPLISH THIS END IS A TENET OF COMMUNISTS.  FN9  NO MORE
IS NECESSARY TO JUSTIFY AN ORGANIZATION'S DESIGNATION AS COMMUNIST. 

AS A BASIS FOR PETITIONERS' ATTACK ON THE LIST, THE REFUGEE COMMITTEE
SET FORTH FACTS IN ITS COMPLAINT TO SHOW ITS CHARITABLE CHARACTER. 
THESE INDICATE ACTIVITIES AND EXPENDITURES IN AID OF THE SPANISH
REPUBLICANS IN FLIGHT FROM THEIR HOMELAND.  THE INTERNATIONAL WORKERS
ORDER SETS FORTH FACTS TO SHOW THAT IT WAS A DULY ORGANIZED FRATERNAL
BENEFIT SOCIETY UNDER NEW YORK LAW, FURNISHING SICKNESS AND DEATH
BENEFITS AS WELL AS LIFE INSURANCE PROTECTION TO ITS MEMBERS.  IT
STATES OTHER WORTHY OBJECTIVES IN WHICH IT IS ENGAGED AND ASSERTS IT IS
NOT AN ORGANIZATION SUCH AS ARE REFERRED TO IN THE ORDER, PART III,
SEC. 3, SUPRA.  THE COUNCIL, TOO, SETS OUT ITS PURPOSE TO PROMOTE
AMERICAN-SOVIET FRIENDSHIP BY MEANS OF EDUCATION AND INFORMATION.  IT
ASSERTS: 

"IN ALL ITS ACTIVITIES THE NATIONAL COUNCIL HAS SOUGHT TO FURTHER THE
BEST INTERESTS OF THE AMERICAN PEOPLE BY LAWFUL, PEACEFUL AND
CONSTITUTIONAL MEANS." 

THE ABSENCE OF ANY PROVISION IN THE ORDER OR RULES FOR NOTICE TO
SUSPECTED ORGANIZATIONS, FOR HEARINGS WITH PRIVILEGE TO THE
ORGANIZATIONS TO CONFRONT WITNESSES, CROSS-EXAMINE, PRODUCE EVIDENCE
AND HAVE REPRESENTATION OF COUNSEL OR JUDICIAL REVIEW OF THE CONCLUSION
REACHED BY THE ATTORNEY GENERAL IS URGED BY THE PETITIONERS, AS A
PROCEDURE SO FUNDAMENTALLY UNFAIR AND RESTRICTIVE OF PERSONAL FREEDOMS
AS TO VIOLATE THE FEDERAL CONSTITUTION, SPECIFICALLY THE DUE PROCESS
CLAUSE AND THE FIRST AMENDMENT.  NO OPPORTUNITY WAS ALLOWED BY THE
ATTORNEY GENERAL FOR PETITIONERS TO OFFER PROOF OF THE LEGALITY OF
THEIR PURPOSES OR TO DISPROVE CHARGES OF SUBVERSIVE OPERATIONS.  THIS
IS THE REAL GRAVAMEN OF EACH COMPLAINT, THE BASIS UPON WHICH THE
DETERMINATION OF UNCONSTITUTIONALITY IS SOUGHT.  FN10 

TO THESE COMPLAINTS, THE GOVERNMENT FILED MOTIONS TO DISMISS BECAUSE
OF FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED.  THE
MOTIONS WERE GRANTED BY THE DISTRICT COURT AND THE COURT OF APPEALS
AFFIRMED. 

ADMISSIONS BY MOTIONS TO DISMISS.  - IT IS HELD IN MR. JUSTICE
BURTON'S OPINION THAT THE MOTION TO DISMISS SHOULD HAVE BEEN DENIED. 
IT IS SAID: 

"THE INCLUSION OF ANY OF THE COMPLAINING ORGANIZATIONS IN THE
DESIGNATED LIST SOLELY ON THE FACTS ALLEGED IN THE RESPECTIVE
COMPLAINTS, WHICH MUST BE THE BASIS FOR OUR DECISION HERE, IS THEREFORE
AN ARBITRARY AND UNAUTHORIZED ACT.  IN THE TWO CASES WHERE THE
COMPLAINT SPECIFICALLY ALLEGES THE FACTUAL ABSENCE OF ANY BASIS FOR THE
DESIGNATION, AND THE RESPONDENTS' MOTION ADMITS THAT ALLEGATION, THE
DESIGNATION IS NECESSARILY CONTRARY TO THE RECORD."  P. 137. 

I UNDERSTAND MR. JUSTICE BURTON'S OPINION TO HOLD THAT AS A MOTION TO
STRIKE FOR FAILURE TO STATE A CAUSE OF ACTION ADMITS ALL WELL-PLEADED
FACTS RESPONDENTS' MOTION ADMITS SUCH ALLEGATIONS IN THE COMPLAINT AS
THAT QUOTED IN THE THIRD PRECEDING PARAGRAPH FROM THE COUNCIL'S
COMPLAINT AND THE ASSERTIONS THAT PETITIONERS ARE NOT "TOTALITARIAN,
FASCIST, COMMUNIST OR SUBVERSIVE."  SUCH STATEMENTS, HOWEVER, APPEAR TO
ME TO BE ONLY CONCLUSIONS OF LAW AS TO THE EFFECT OF FACTS STATED, OR
EMPTY ASSERTIONS OR CONCLUSIONS WITHOUT WELL-PLEADED FACTS TO SUSTAIN
THEM.  FN11  WHERE THE ISSUE IS THE PERMISSIBILITY OF DESIGNATION
WITHOUT NOTICE OR HEARING, A MOTION TO STRIKE DOES NOT ADMIT AN
ALLEGATION OF "ARBITRARY" ACTION OR THAT "ALL ITS ACTIVITIES (ARE)  ...
CONSTITUTIONAL."  THESE COMPLAINTS MAY NOT BE DECIDED UPON ANY SUCH
POSTURE IN PLEADING.  PETITIONERS' CHARGE, THAT THEIR "DESIGNATION"
VIOLATES DUE PROCESS AND THE FIRST AMENDMENT, REMAINS THE ISSUE. 

STANDING TO SUE.  - A QUESTION IS RAISED BY THE UNITED STATES AS TO
PETITIONERS' STANDING TO MAINTAIN THESE ACTIONS.  IT SEEMS UNNECESSARY
TO ANALYZE THAT PROBLEM IN THIS DISSENT.  IF THERE SHOULD BE A
DETERMINATION THAT PETITIONERS' CONSTITUTIONAL RIGHTS ARE VIOLATED BY
PETITIONERS' DESIGNATION UNDER PART III, SEC. 3, OF THE ORDER, IT WOULD
SEEM THEY WOULD HAVE STANDING TO SEEK REDRESS.  THE "STANDING" TURNS ON
THE EXISTENCE OF THE FEDERAL RIGHT.  FN12  DOES PETITIONERS'
DESIGNATION ABRIDGE THEIR RIGHTS UNDER THE FIRST AMENDMENT?  DO
PETITIONERS HAVE A CONSTITUTIONAL RIGHT UNDER THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT TO REQUIRE A HEARING BEFORE THE ATTORNEY GENERAL
DESIGNATES THEM AS A SUBVERSIVE OR COMMUNIST ORGANIZATION FOR THE
PURPOSES OF EXECUTIVE ORDER NO. 9835? 

FIRST AMENDMENT.  - PETITIONERS ASSERT THAT THEIR INCLUDSION ON THE
DISLOYAL LIST HAS ABRIDGED THEIR FREEDOM OF SPEECH, SINCE LISTENERS OR
READERS ARE MORE DIFFICULT TO OBTAIN FOR THEIR SPEECHES AND
PUBLICATIONS, AND PARTIES INTERESTED IN THEIR WORK ARE MORE HESITANT TO
BECOME ASSOCIATES.  THE REFUGEE COMMITTEE BRIEF ADDS THAT "THOUGHT" IS
ALSO ABRIDGED.  A CONCURRING OPINION ACCEPTS THESE ARGUMENTS TO THE
POINT OF CONCLUDING THAT THE PUBLICATION OF THE LISTS "WITH OR WITHOUT
A HEARING" VIOLATES THE FIRST AMENDMENT. 

THIS COURT, THROUGHOUT THE YEARS, HAS MAINTAINED THE PROTECTION OF
THE FIRST AMENDMENT AS A MAJOR SAFEGUARD TO THE MAINTENANCE OF A FREE
REPUBLIC.  THIS NATION HAS NEVER SUFFERED FROM AN ENFORCED CONFORMITY
OF EXPRESSION OR A LIMITATION OF CRITICISM.  BUT NEITHER ARE WE
COMPELLED TO ENDURE ESPIONAGE AND SEDITION.  WIDE AS ARE THE FREEDOMS
OF THE FIRST AMENDMENT, THIS COURT HAS NEVER HESITATED TO DENY THE
INDIVIDUAL'S RIGHT TO USE THE PRIVILEGES FOR THE OVERTURN OF LAW AND
ORDER.  REASONABLE RESTRAINTS FOR THE FAIR PROTECTION OF THE GOVERNMENT
AGAINST INCITEMENT TO SEDITION CANNOT PROPERLY BE SAID TO BE
"UNDEMOCRATIC" OR CONTRARY TO THE GUARANTEES OF FREE SPEECH.  OTHERWISE
THE GUARANTEE OF CIVIL RIGHTS WOULD BE A MOCKERY N13.  EVEN WHEN THIS
COURT SPOKE OUT MOST STRONGLY AGAINST PREVIOUS RESTRAINTS, IT WAS
CAREFUL TO RECOGNIZE THAT "THE SECURITY OF THE COMMUNITY LIFE MAY BE
PROTECTED AGAINST INCITEMENTS TO ACTS OF VIOLENCE AND THE OVERTHROW BY
FORCE OF ORDERLY GOVERNMENT."  NEAR V. MINNESOTA, 283 U.S. 697, 716. 

RECOGNIZING THAT THE DESIGNATION, RIGHTLY OR WRONGLY, OF PETITIONER
ORGANIZATIONS AS COMMUNIST IMPAIRS THEIR ABILITY TO CARRY FORWARD
SUCCESSFULLY WHATEVER LEGITIMATE OBJECTS THEY SEEK TO ACCOMPLISH, WE DO
NOT ACCEPT THEIR ARGUMENT THAT SUCH INTERFERENCE IS AN ABRIDGMENT OF
FIRST AMENDMENT GUARANTEES.  FN14  THEY ARE IN THE POSITION OF EVERY
PROPONENT OF UNPOPULAR VIEWS.  HERESY INDUCES STRONG EXPRESSIONS OF
OPPOSITION.  SO LONG AS PETITIONERS ARE PERMITTED TO VOICE THEIR
POLITICAL IDEAS, FREE FROM SUGGESTIONS FOR THE OPPORTUNE USE OF FORCE
TO ACCOMPLISH THEIR SOCIAL AND ECONOMIC AIMS, IT IS HARD TO UNDERSTAND
HOW ANY ADVOCATE OF FREEDOM OF EXPRESSION CAN ASSERT THAT THEIR RIGHT
HAS BEEN UNCONSTITUTIONALLY ABRIDGED.  AS NOTHING IN THE ORDERS OR
REGULATIONS CONCERNING THIS LIST LIMITS THE TEACHINGS OR SUPPORT OF
THESE ORGANIZATIONS, WE DO NOT BELIEVE THAT ANY RIGHT OF THEIRS UNDER
THE FIRST AMENDMENT IS ABRIDGED BY PUBLICATION OF THE LIST. 

DUE PROCESS.  - THIS POINT BRINGS US FACE TO FACE WITH THE ARGUMENT
THAT WHETHER THE ATTORNEY GENERAL WAS RIGHT OR WRONG IN LISTING THESE
ORGANIZATIONS, HIS DESIGNATION CANNOT STAND BECAUSE A FINAL DECISION OF
INELIGIBILITY FOR EMPLOYMENT WITHOUT NOTICE AND HEARING RISES TO THE
IMPORTANCE OF A CONSTITUTIONAL DEFECT.  IF STANDARDS FOR DEFINITION OF
ORGANIZATIONS INCLUDABLE ON THE LIST ARE NECESSARY, THE ORDER FURNISHES
ADEQUATE TESTS AS APPEARS FROM THE TEXT PRECEDING NOTES 2 AND 7 ABOVE
AND THE STANDARDS SET OUT IN THOSE NOTES.  COMPARE CASES CITED, NOTE 6,
SUPRA. 

DOES DUE PROCESS REQUIRE NOTICE AND HEARING FOR THE DEPARTMENT OF
JUSTICE INVESTIGATION UNDER EXECUTIVE ORDER NO. 9835, PART III, SEC. 3,
NOTE 3, SUPRA, PRELIMINARY TO LISTING?  AS A STANDARD FOR DUE PROCESS
ONE CANNOT DO BETTER THAN TO ACCEPT AS A MEASURE THAT NO ONE MAY BE
DEPRIVED OF LIBERTY OR PROPERTY WITHOUT SUCH REASONABLE NOTICE AND
HEARING AS FAIRNESS REQUIRES.  THIS IS MY UNDERSTANDING OF THE MEANING
OF THE OPINIONS UPON DUE PROCESS CITED IN THE CONCURRING OPINIONS.  WE
ARE NOT HERE CONCERNED WITH THE RIGHTFULNESS OF THE EXTENT OF
PARTICIPATION IN THE INVESTIGATIONS THAT MIGHT BE CLAIMED BY
PETITIONERS N15.  THEY WERE GIVEN NO CHANCE TO TAKE PART.  THEIR CLAIM
IS THAT THE LISTING RESULTED IN A DEPRIVATION OF LIBERTY OR PROPERTY
CONTRARY TO THE PROCEDURE REQUIRED BY THE FIFTH AMENDMENT.  FN16 

THE CONTENTION CAN BE ANSWERED SUMMARILY BY SAYING THAT THERE IS NO
DEPRIVATION OF ANY PROPERTY OR LIBERTY OF ANY LISTED ORGANIZATION BY
THE ATTORNEY GENERAL'S DESIGNATION.  IT MAY BE ASSUMED THAT THE LISTING
IS HURTFUL TO THEIR PRESTIGE, REPUTATION AND EARNING POWER.  IT MAY BE
SUCH AN INJURY AS WOULD ENTITLE ORGANIZATIONS TO DAMAGES IN A TORT
ACTION AGAINST PERSONS NOT PROTECTED BY PRIVILEGE.  SEE SPALDING V.
VILAS, 161 U.S. 483; GLASS V. ICKES, 73 APP. D.C. 3, 117 F.2D 273. 
THIS DESIGNATION, HOWEVER, DOES NOT PROHIBIT ANY BUSINESS OF THE
ORGANIZATIONS, SUBJECT THEM TO ANY PUNISHMENT OR DEPRIVE THEM OF
LIBERTY OF SPEECH OR OTHER FREEDOM.  THE CASES RELIED UPON IN THE
BRIEFS AND OPINIONS OF THE MAJORITY AS REQUIRING NOTICE AND HEARING
BEFORE VALID ACTION CAN BE TAKEN BY ADMINISTRATIVE OFFICERS ARE WHERE
COMPLAINANT WILL LOSE SOME PROPERTY OR ENFORCEABLE CIVIL OR STATUTORY
RIGHT BY THE ACTION TAKEN OR PROPOSED.  FN17  "(A) MERE ABSTRACT
DECLARATION" BY AN ADMINISTRATOR REGARDING THE CHARACTER OF AN
ORGANIZATION, WITHOUT THE EFFECT OF FORBIDDING OR COMPELLING CONDUCT ON
THE PART OF COMPLAINANT, OUGHT NOT TO BE SUBJECT TO JUDICIAL
INTERFERENCE.  ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S.
125, 129, 143.  THAT IS, IT DOES NOT REQUIRE NOTICE AND HEARING. 

THESE PETITIONERS ARE NOT ORDERED TO DO ANYTHING AND ARE NOT PUNISHED
FOR ANYTHING.  THEIR POSITION MAY BE ANALOGIZED TO THAT OF PERSONS
UNDER GRAND JURY INVESTIGATION.  SUCH PERSONS HAVE NO RIGHT TO NOTICE
BY AND HEARING BEFORE A GRAND JURY; ONLY A RIGHT TO DEFEND THE CHARGE
AT TRIAL.  FN18  PROPERTY MAY BE TAKEN FOR GOVERNMENT USE WITHOUT
NOTICE OR HEARING BY A MERE DECLARATION OF TAKING BY THE AUTHORIZED
OFFICIAL.  NO COURT HAS DOUBTED THE CONSTITUTIONALITY OF SUCH SUMMARY
ACTION UNDER THE DUE PROCESS CLAUSE WHEN JUST COMPENSATION MUST BE PAID
ULTIMATELY N19.  PERSONS MAY BE BARRED FROM CERTAIN POSITIONS MERELY
BECAUSE OF THEIR ASSOCIATIONS.  FN20 

TO ALLOW PETITIONERS ENTRY INTO THE INVESTIGATION WOULD AMOUNT TO
INTERFERENCE WITH THE EXECUTIVE'S DISCRETION, CONTRARY TO THE ORDINARY
OPERATIONS OF GOVERNMENT.  LONG AGO MR. CHIEF JUSTICE TANEY IN DECATUR
V. PAULDING, 14 PET. 497, STATED THE RULE AND THE REASON AGAINST
JUDICIAL INTERFERENCE WITH EXECUTIVE DISCRETION:    "THE HEAD OF AN
EXECUTIVE DEPARTMENT OF THE GOVERNMENT, IN THE ADMINISTRATION OF THE
VARIOUS AND IMPORTANT CONCERNS OF HIS OFFICE, IS CONTINUALLY REQUIRED
TO EXERCISE JUDGMENT AND DISCRETION.  ... 

"IF A SUIT SHOULD COME BEFORE THIS COURT, WHICH INVOLVED THE
CONSTRUCTION OF ANY OF THESE LAWS, THE COURT CERTAINLY WOULD NOT BE
BOUND TO ADOPT THE CONSTRUCTION GIVEN BY THE HEAD OF A DEPARTMENT. 

AND IF THEY SUPPOSED HIS DECISION TO BE WRONG, THEY WOULD, OF COURSE,
SO PRONOUNCE THEIR JUDGMENT.  BUT THEIR JUDGMENT UPON THE CONSTRUCTION
OF A LAW MUST BE GIVEN IN A CASE IN WHICH THEY HAVE JURISDICTION, AND
IN WHICH IT IS THEIR DUTY TO INTERPRET THE ACT OF CONGRESS, IN ORDER TO
ASCERTAIN THE RIGHTS OF THE PARTIES IN THE CAUSE BEFORE THEM."  P.
515. 

"THE INTERFERENCE OF THE COURTS WITH THE PERFORMANCE OF THE ORDINARY
DUTIES OF THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT, WOULD BE
PRODUCTIVE OF NOTHING BUT MISCHIEF; AND WE ARE QUITE SATISFIED THAT
SUCH A POWER WAS NEVER INTENDED TO BE GIVEN TO THEM."  P. 516. 

THAT RULE STILL STANDS.  LARSON V. DOMESTIC & FOREIGN CORP., 337 U.S.
682, 704.  FN21  THIS COURT APPLIED IT RECENTLY IN CHICAGO & SOUTHERN
AIR LINES, INC. V. WATERMAN S.S. CORP., 333 U.S. 103, AS TO FOREIGN
POLICY DECISIONS OF THE PRESIDENT CONCERNING OVERSEAS AIRLINE
LICENSES.  FN22  IN LOUISIANA V. MCADOO, 234 U.S. 627, THE STATE SOUGHT
TO ENJOIN AN ORDER OF THE SECRETARY OF THE TREASURY FIXING THE CUSTOMS
RATE ON SUGAR AS "ARBITRARY, ILLEGAL AND UNJUST" AND IRREPARABLY
INJURIOUS TO THE STATE.  THE COURT REFUSED THE STATE PERMISSION TO FILE
THE SUIT AS IN REALITY A SUIT AGAINST THE UNITED STATES, SAYING AN
OFFICER MAY BE COMPELLED TO ACT MINISTERIALLY. 

"BUT IF THE MATTER IN RESPECT TO WHICH THE ACTION OF THE OFFICIAL IS
SOUGHT, IS ONE IN WHICH THE EXERCISE OF EITHER JUDGMENT OR DISCRETION
IS REQUIRED, THE COURTS WILL REFUSE TO SUBSTITUTE THEIR JUDGMENT OR
DISCRETION FOR THAT OF THE OFFICIAL ENTRUSTED BY LAW WITH ITS
EXECUTION.  INTERFERENCE IN SUCH A CASE WOULD BE TO INTERFERE WITH THE
ORDINARY FUNCTIONS OF GOVERNMENT."  P. 633. 

IT SEEMS CLEARLY ERRONEOUS TO SUGGEST THAT "LISTING" DETERMINES ANY
"GUILT" OR "PUNISHMENT" FOR THE ORGANIZATIONS OR HAS ANY FINALITY IN
DETERMINING THE LOYALTY OF MEMBERS.  THE PRESIDENT AND THE ATTORNEY
GENERAL POINTED THIS OUT.  FN23  IT IS WRITTEN INTO THE CODE OF FEDERAL
REGULATIONS, 5 CFR SEC. 210.11(B)(6), NOTE 4, SUPRA.  THE STANDARD FOR
DISCHARGE EMPHASIZES THE MEANING.  SEE NOTES 2 AND 7, SUPRA. 

BEFORE STATING OUR CONCLUSIONS A COMMENT SHOULD BE MADE AS TO THE
INTRODUCTION BY THE CONCURRING OPINIONS OF A DISCUSSION OF THE RIGHTS
OF A MEMBER OF THESE ORGANIZATIONS.  IT IS SUGGESTED BY ONE CONCURRENCE
THAT AS THE "GOVERNMENT PROCEEDS ON THE BASIS THAT EACH OF THESE
ASSOCIATIONS IS SO IDENTICAL WITH ITS MEMBERS THAT THE SUBVERSIVE
PURPOSE AND INTENTS OF THE ONE MAY BE ATTRIBUTED TO AND MADE CONCLUSIVE
UPON THE OTHER," THE ORGANIZATION MUST BE PERMITTED TO VINDICATE THE
MEMBERS' RIGHTS OR DUE PROCESS IS NOT SATISFIED.  ANOTHER CONCURRENCE
STATES "AN EMPLOYEE MAY LOSE HIS JOB BECAUSE OF THE ATTORNEY GENERAL'S
SECRET AND EX PARTE ACTION."  BOTH CONCURRENCES INDICATE, IT SEEMS TO
ME, THAT AS A MEMBER OF PETITIONER ORGANIZATIONS IS DENIED DUE PROCESS
BY THE EFFECT OF LISTING THE ORGANIZATIONS, THE ORGANIZATION IS
LIKEWISE DENIED DUE PROCESS IN THE LISTING.  WITHOUT ACCEPTING THE
LOGIC OF THE CONCURRENCES, AND WAIVING INQUIRY AS TO THE STANDING OF A
CORPORATION OR UNINCORPORATED ASSOCIATION TO DEFEND THE RIGHTS OF A
MEMBER TO EMPLOYMENT, WE THINK THE SUGGESTIONS AS TO LACK OF DUE
PROCESS ARE BASED ON AN ERRONEOUS PREMISE.  EMPLOYEES GENERALLY, UNDER
EXECUTIVE DEPARTMENTS AND AGENCIES, WHETHER OR NOT MEMBERS OF LISTED
ORGANIZATIONS, WITHOUT SPECIAL STATUTORY PROTECTION SUCH AS PERMANENT
EMPLOYEES UNDER THE COMPETITIVE AND CLASSIFIED CIVIL SERVICE LAWS AND
REGULATIONS OR PREFERENCE ELIGIBLES UNDER THE VETERANS' PREFERENCE ACT
OF 1944, 58 STAT. 387, 5 U.S.C. SEC. 851, 5 CFR, PARTS 9 AND 22, AND
PART 2, SEC. 2.104, ARE SUBJECT TO SUMMARY REMOVAL BY THE APPOINTING
OFFICERS.  FN24  LISTING OF THESE ORGANIZATIONS DOES NOT CONCLUDE THE
MEMBERS' RIGHTS TO HOLD GOVERNMENT EMPLOYMENT.  IT IS ONLY ONE PIECE OF
EVIDENCE FOR CONSIDERATION.  FN25  THAT MERE MEMBERSHIP IN LISTED
ORGANIZATIONS DOES NOT NORMALLY BRING ABOUT FINDINGS OF DISLOYALTY IS
GRAPHICALLY SHOWN BY A REPORT OF PROCEEDINGS UNDER THE LOYALTY
PROGRAM.  FN26  THE PROCEDURE FOR REMOVAL OF EMPLOYEES SUSPECTED OF
DISLOYALTY FOLLOWS THE ROUTINE PRESCRIBED FOR THE REMOVAL OF EMPLOYEES
ON OTHER GROUNDS FOR DISMISSAL.  EMPLOYEES UNDER INVESTIGATION HAVE
NEVER HAD THE RIGHT TO CONFRONTATION, CROSS-EXAMINATION AND QUASI
JUDICIAL HEARING.  37 STAT. 555, AS AMENDED, 5 U.S.C. SEC. 652.  NORMAL
REMOVAL PROCEDURE FUNCTIONS FOR PERMANENT EMPLOYEES ABOUT IN THIS WAY. 
THE EMPLOYING AGENCY MAY REMOVE FOR THE EFFICIENCY OF THE SERVICE,
INCLUDING GROUNDS FOR DISQUALIFICATION OF AN APPLICANT.  5 CFR, 1947
SUPP., SEC. 9.101.  FN27  REMOVAL REQUIRES NOTICE AND CHARGES.  FN28
BEFORE THE LOYALTY REVIEW BOARDS SIMILAR PROCEDURE IS FOLLOWED.  FN29
WHERE INITIAL CONSIDERATION INDICATES A REMOVAL OF AN INCUMBENT FOR
DISLOYALTY MAY BE WARRANTED, NOTICE IS PROVIDED FOR.  FN30  THUS, THERE
IS SCRUPULOUS CARE TAKEN TO SEE THAT AN EMPLOYEE WHO HAS FALLEN UNDER
SUSPICION HAS NOTICE OF THE CHARGES AND AN OPPORTUNITY TO EXPLAIN HIS
ACTIONS.  THE EMPLOYEE HAS NO OPPORTUNITY TO DISPROVE THE
CHARACTERIZATION PLACED UPON THE LISTED ORGANIZATION BY THE ATTORNEY
GENERAL FOR THE PRACTICAL REASONS STATED FOLLOWING NOTE 2, SUPRA.  THE
EMPLOYEE DOES HAVE EVERY OPPORTUNITY TO EXPLAIN HIS ASSOCIATION WITH
THAT ORGANIZATION.  THE CONSTITUTION REQUIRES FOR THE EMPLOYEE NO MORE
THAN THIS FAIR OPPORTUNITY TO EXPLAIN HIS QUESTIONED ACTIVITIES.  SUCH
PROCEDURE IS QUITE SIMILAR TO THAT FOLLOWED IN GREAT BRITAIN IN THE
REMOVAL OR TRANSFER OF CIVIL SERVANTS FROM POSITIONS "VITAL TO THE
SECURITY OF THE STATE."  THE PRIME MINISTER ASSUMED THE AUTHORITY TO
DESIGNATE MEMBERSHIP IN THE COMMUNIST PARTY OR "OTHER FORMS OF
CONTINUING ASSOCIATION" THEREWITH AS SUFFICIENT TO BAR EMPLOYMENT IN
SENSITIVE AREAS.  FN31 

CONCLUSION. - IN OUR JUDGMENT ORGANIZATIONS ARE NOT AFFECTED BY THESE
DESIGNATIONS IN SUCH A MANNER AS TO PERMIT A COURT'S INTERFERENCE OR TO
DENY DUE PROCESS.  THAT CONCLUSION HOLDS GOOD ALSO WHEN WE ASSUME THE
ORGANIZATIONS MAY PRESENT THEIR MEMBERS' GRIEVANCES OVER DISCHARGE AS A
PART OF THE ORGANIZATION'S CASE.  THE ADMINISTRATIVE HEARING GRANTED AN
EMPLOYEE FACING DISCHARGE IS A STATUTORY MODIFICATION OF THE EMPLOYING
AGENT'S FORMER AUTHORITY TO DISCHARGE SUMMARILY.  SUCH ACT OF GRACE
DOES NOT CREATE A CONSTITUTIONAL RIGHT.  DUE PROCESS IS CALLED FOR IN
DETERMINATIONS AFFECTING RIGHTS. 

WHAT PETITIONERS SEEK IS A RULING THAT THE GOVERNMENT CANNOT
DESIGNATE ORGANIZATIONS AS COMMUNIST FOR THE PURPOSE OF FURTHERING
INVESTIGATIONS INTO EMPLOYEES' LOYALTY BY THE EMPLOYING AGENCIES
WITHOUT GIVING THOSE ORGANIZATIONS AN OPPORTUNITY TO EXAMINE AND MEET
THE INFORMATION ON WHICH THE LIST IS BASED.  ONE CAN UNDERSTAND THAT
POSITION.  THERE IS A NATURAL HESITATION AGAINST ANY ACTION THAT MAY
DAMAGE ANY PERSON OR ORGANIZATION THROUGH AN ERROR THAT NOTICE AND
HEARING MIGHT CORRECT.  SUCH ATTITUDE OF TOLERANCE IS REFLECTED IN SEC.
13 OF THE INTERNAL SECURITY ACT OF 1950, 64 STAT. 987, 998.  A
STATUTORY REQUIREMENT FOR NOTICE AND ADMINISTRATIVE HEARING, HOWEVER,
DOES NOT MEAN THE EXISTENCE OF A CONSTITUTIONAL REQUIREMENT.  FN32 

THE EXECUTIVE HAS AUTHORITY TO GATHER INFORMATION CONCERNING THE
LOYALTY OF ITS EMPLOYEES AS CONGRESSIONAL COMMITTEES HAVE POWER TO
INVESTIGATE MATTERS OF LEGISLATIVE INTEREST.  A PUBLIC STATEMENT OF
LEGISLATIVE CONCLUSIONS ON INFORMATION THAT LATER MAY BE FOUND
ERRONEOUS MAY DAMAGE THOSE INVESTIGATED BUT IT IS NOT A CIVIL JUDGMENT
OR A CRIMINAL CONVICTION.  DUE PROCESS DOES NOT APPLY.  QUESTIONS OF
PROPRIETY OF POLITICAL ACTION ARE NOT FOR THE COURTS.  INFORMATION THAT
AN EMPLOYEE ASSOCIATES WITH OR BELONGS TO ORGANIZATIONS CONSIDERED
COMMUNISTIC MAY BE DEEMED BY THE EXECUTIVE A SOUND REASON FOR MAKING
INQUIRIES INTO THE DESIRABILITY OF THE EMPLOYMENT OF THAT EMPLOYEE. 
THAT IS NOT "GUILT BY ASSOCIATION."  IT IS A WARNING TO INVESTIGATE THE
CONDUCT OF THE EMPLOYEE AND HIS OPPORTUNITY FOR HARM. 

WHILE WE MUST BE ON GUARD AGAINST BEING MOVED TO CONCLUSIONS ON THE
CONSTITUTIONALITY OF ACTION, LEGISLATIVE OR EXECUTIVE, BY THE
CIRCUMSTANCES OF THE MOMENT, UNDOUBTEDLY VARYING CONDITIONS CALL FOR
DIFFERENCES IN PROCEDURE.  DUE PROCESS REQUIRES APPRAISAL IN THE LIGHT
OF CONDITIONS CONFRONTING THE EXECUTIVE DURING THE CONTINUATION OF THE
CHALLENGED ACTION.  FN33  POWER LIES IN THE EXECUTIVE TO GUARD THE
NATION FROM ESPIONAGE, SUBVERSION AND SEDITION BY EXAMINING INTO THE
LOYALTY OF EMPLOYEES, AND DUE PROCESS IN SUCH INVESTIGATION DEPENDS
UPON THE PARTICULAR EXERCISE OF THAT POWER IN PARTICULAR CONDITIONS. 
FN34  IN INVESTIGATIONS TO DETERMINE THE PURPOSES OF SUSPECTED
ORGANIZATIONS, THE GOVERNMENT SHOULD BE FREE TO PROCEED WITHOUT NOTICE
OR HEARING.  PETITIONERS WILL HAVE PROTECTION WHEN STEPS ARE TAKEN TO
PUNISH OR ENJOIN THEIR ACTIVITIES.  WHERE NOTICE AND SUCH
ADMINISTRATIVE HEARING AS THE CODE OF FEDERAL REGULATIONS PRESCRIBES
PRECEDE PUNISHMENT, INJUNCTION OR DISCHARGE, PETITIONERS AND THEIR
MEMBERS' RIGHTS TO DUE PROCESS ARE PROTECTED. 

THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE AFFIRMED. 

FN1  5 U.S.C. (SUPP. II) SEC. 118J: 

"(1)  IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN ANY CAPACITY BY
ANY AGENCY OF THE FEDERAL GOVERNMENT, WHOSE COMPENSATION, OR ANY PART
THEREOF, IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY ANY ACT OF
CONGRESS, TO HAVE MEMBERSHIP IN ANY POLITICAL PARTY OR ORGANIZATION
WHICH ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT
IN THE UNITED STATES. 

"(2)  ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE
IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND
THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS FOR
SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH
PERSONS." 

FN2  SEE 12 FED. REG. 1938, 5 CFR SEC. 210.11(A): 

"(A)  STANDARD.  THE STANDARD FOR THE REFUSAL OF EMPLOYMENT OR THE
REMOVAL FROM EMPLOYMENT IN AN EXECUTIVE DEPARTMENT OR AGENCY ON GROUNDS
RELATING TO LOYALTY SHALL BE THAT, ON ALL THE EVIDENCE, REASONABLE
GROUNDS EXIST FOR BELIEF THAT THE PERSON INVOLVED IS DISLOYAL TO THE
GOVERNMENT OF THE UNITED STATES.  THE PANEL SHALL REACH ITS DECISION ON
CONSIDERATION OF THE COMPLETE FILE, ARGUMENTS, BRIEF AND TESTIMONY
PRESENTED TO IT. 

"(B)  ACTIVITIES AND ASSOCIATIONS.  AMONG THE ACTIVITIES AND
ASSOCIATIONS OF AN APPLICANT OR EMPLOYEE WHICH MAY BE CONSIDERED IN
CONNECTION WITH THE DETERMINATION OF DISLOYALTY MAY BE ONE OR MORE OF
THE FOLLOWING: 

     .         .         .         .         . 

"(6)  MEMBERSHIP IN, AFFILIATION WITH OR SYMPATHETIC ASSOCIATION WITH
ANY FOREIGN OR DOMESTIC ORGANIZATION, ASSOCIATION, MOVEMENT, GROUP OR
COMBINATION OF PERSONS, DESIGNATED BY THE ATTORNEY GENERAL AS
TOTALITARIAN, FASCIST, COMMUNIST, OR SUBVERSIVE, OR AS HAVING ADOPTED A
POLICY OF ADVOCATING OR APPROVING THE COMMISSION OF ACTS OF FORCE OR
VIOLENCE TO DENY OTHER PERSONS THEIR RIGHTS UNDER THE CONSTITUTION OF
THE UNITED STATES, OR AS SEEKING TO ALTER THE FORM OF GOVERNMENT OF THE
UNITED STATES BY UNCONSTITUTIONAL MEANS." 

FN3  "3.  THE LOYALTY REVIEW BOARD SHALL CURRENTLY BE FURNISHED BY
THE DEPARTMENT OF JUSTICE THE NAME OF EACH FOREIGN OR DOMESTIC
ORGANIZATION, ASSOCIATION, MOVEMENT, GROUP OR COMBINATION OF PERSONS
WHICH THE ATTORNEY GENERAL, AFTER APPROPRIATE INVESTIGATION AND
DETERMINATION, DESIGNATES AS TOTALITARIAN, FASCIST, COMMUNIST OR
SUBVERSIVE, OR AS HAVING ADOPTED A POLICY OF ADVOCATING OR APPROVING
THE COMMISSION OF ACTS OF FORCE OR VIOLENCE TO DENY OTHERS THEIR RIGHTS
UNDER THE CONSTITUTION OF THE UNITED STATES, OR AS SEEKING TO ALTER THE
FORM OF GOVERNMENT OF THE UNITED STATES BY UNCONSTITUTIONAL MEANS. 

"A.  THE LOYALTY REVIEW BOARD SHALL DISSEMINATE SUCH INFORMATION TO
ALL DEPARTMENTS AND AGENCIES." 

FN4  5 CFR SEC. 210.11(B)(6): 

"SUCH MEMBERSHIP, AFFILIATION OR SYMPATHETIC ASSOCIATION IS SIMPLY
ONE PIECE OF EVIDENCE WHICH MAY OR MAY NOT BE HELPFUL IN ARRIVING AT A
CONCLUSION AS TO THE ACTION WHICH IS TO BE TAKEN IN A PARTICULAR CASE. 
...  " 

SEE 5 CFR SEC. 200.1. 

FN5  13 FED. REG. 1471: 

"AFTER THE ISSUANCE OF EXECUTIVE ORDER NO. 9835 BY THE PRESIDENT, THE
DEPARTMENT OF JUSTICE COMPILED ALL AVAILABLE DATA WITH RESPECT TO THE
TYPE OF ORGANIZATION TO BE DEALT WITH UNDER THAT ORDER.  THE
INVESTIGATIVE REPORTS OF THE FEDERAL BUREAU OF INVESTIGATION CONCERNING
SUCH ORGANIZATIONS WERE CORRELATED.  MEMORANDA ON EACH SUCH
ORGANIZATION WERE PREPARED BY ATTORNEYS OF THE DEPARTMENT.  THE LIST OF
ORGANIZATIONS CONTAINED HEREIN HAS BEEN CERTIFIED TO THE BOARD BY THE
ATTORNEY GENERAL ON THE BASIS OF RECOMMENDATIONS OF ATTORNEYS OF THE
DEPARTMENT AS REVIEWED BY THE SOLICITOR GENERAL, THE ASSISTANT
ATTORNEYS GENERAL, AND THE ASSISTANT SOLICITOR GENERAL, AND SUBSEQUENT
CAREFUL STUDY OF ALL BY THE ATTORNEY GENERAL." 

CF. UNITED STATES V. CHEMICAL FOUNDATION, 272 U.S. 1, 14; LEWIS V.
UNITED STATES, 279 U.S. 63, 73. 

FN6  CF. NASH V. UNITED STATES, 229 U.S. 373, 377; N.Y. CENTRAL
SECURITIES CORP. V. UNITED STATES, 287 U.S. 12, 24; UNITED STATES V.
PETRILLO, 332 U.S. 1. 

FN7  5 CFR SEC. 210.11(B): 

"(1)  SABOTAGE, ESPIONAGE, OR ATTEMPTS OR PREPARATIONS THEREFOR, OR
KNOWINGLY ASSOCIATING WITH SPIES OR SABOTEURS;    "(2)  TREASON OR
SEDITION OR ADVOCACY THEREOF; 

"(3)  ADVOCACY OF REVOLUTION OR FORCE OR VIOLENCE TO ALTER THE
CONSTITUTIONAL FORM OF GOVERNMENT OF THE UNITED STATES; 

"(4)  INTENTIONAL, UNAUTHORIZED DISCLOSURE TO ANY PERSON UNDER
CIRCUMSTANCES WHICH MAY INDICATE DISLOYALTY TO THE UNITED STATES, OF
DOCUMENTS OR INFORMATION OF A CONFIDENTIAL OR NON-PUBLIC CHARACTER
OBTAINED BY THE PERSON MAKING THE DISCLOSURE AS A RESULT OF HIS
EMPLOYMENT BY THE GOVERNMENT OF THE UNITED STATES, OR PRIOR TO HIS
EMPLOYMENT; 

"(5)  PERFORMING OR ATTEMPTING TO PERFORM HIS DUTIES, OR OTHERWISE
ACTING, SO AS TO SERVE THE INTERESTS OF ANOTHER GOVERNMENT IN
PREFERENCE TO THE INTERESTS OF THE UNITED STATES; ...  "  SEE ALSO N.
2, SUPRA. 

FN8  IN SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 148, 158, A
REVIEW OF THE EVIDENCE OF COMMUNIST THEORY UPON THE USE OF FORCE AND
VIOLENCE PRESENTED IN THAT RECORD LED THIS COURT TO HOLD THAT THE
EVIDENCE CONCERNING COMMUNIST TEACHING UPON FORCE AND VIOLENCE WAS NOT
SO "CLEAR, UNEQUIVOCAL AND CONVINCING" AS TO JUSTIFY DEPORTATION OF
THAT DEFENDANT.  WE REFUSED SPECIFICALLY TO PASS UPON THE ATTITUDE OF
COMMUNISM TOWARD FORCE AND VIOLENCE.  320 U.S. AT 148, 158. 

FN9  THE RUSSIAN IMPERIAL GOVERNMENT FELL QUICKLY IN FEBRUARY 1917,
BECAUSE ITS POWER HAD BEEN SAPPED BY BUREAUCRATIC RAPACITY AND WAR
LOSSES AS WELL AS BY COMMUNIST REVOLUTIONARY DOCTRINES.  EVEN UNDER
THOSE CIRCUMSTANCES, THERE ARE SAID TO HAVE BEEN MORE THAN A THOUSAND
CASUALTIES IN ST. PETERSBURG.  I TROTSKY, HISTORY OF THE RUSSIAN
REVOLUTION, 141. 

THE DOCTRINE AND PRACTICES OF COMMUNISM CLEARLY ENOUGH TEACH THE USE
OF FORCE AGAINST AN EXISTING NONCOMMUNIST GOVERNMENT TO JUSTIFY AN
OFFICIAL OF OUR GOVERNMENT TAKING STEPS TO PROTECT GOVERNMENTAL
PERSONNEL BY SCREENING INDIVIDUALS TO DETERMINE WHETHER THEY ACCEPT
FORCE AND VIOLENCE AS A POLITICAL WEAPON.  FROM THE LAST PARAGRAPHS OF
THE COMMUNIST MANIFESTO TO THE SEIZURE OF THE LAST SATELLITE, FORCE AND
VIOLENCE APPEARS AS A COMMUNIST METHOD FOR GAINING CONTROL.  LENIN,
COLLECTED WORKS (1930), VOL. XVIII, PP. 279-280; TROTSKY, OP. CIT.,
106, 120, 144, 151; LENIN, THE STATE AND REVOLUTION, AUGUST, 1917,
FOREIGN LANGUAGES PUBLISHING HOUSE, MOSCOW (1949), 28, 30, 33. 
TRANSLATIONS FURNISHED ME INDICATE THE SAME ATTITUDE ON THE PART OF
STALIN.  COLLECTED WORKS, VOL. I, PP. 131-137, 185-205, 241-246; VOL.
III, PP. 367-370.  AND SEE LEITES, THE OPERATIONAL CODE OF THE
POLITBURO (1950), C. XIII, "VIOLENCE." 

SEE SEC. 2 OF THE INTERNAL SECURITY ACT OF 1950, 64 STAT. 987. 

FN10  IN THE REFUGEE COMMITTEE COMPLAINT UNCONSTITUTIONALITY OF THE
DESIGNATION WAS PREDICATED UPON REPUGNANCY: 

"1)  IT IS REPUGNANT TO THE CONSTITUTION OF THE UNITED STATES AS A
DEPRIVATION OF FREEDOM OF SPEECH, OF THE PRESS, AND OF ASSEMBLY AND
ASSOCIATION IN VIOLATION OF THE FIRST AMENDMENT. 

"2)  ...  AS A DEPRIVATION OF THE FUNDAMENTAL RIGHTS OF THE PEOPLE OF
THE UNITED STATES RESERVED TO THE PEOPLE OF THE UNITED STATES BY THE
NINTH AND TENTH AMENDMENTS. 

"3)  ...  AS A DEPRIVATION OF LIBERTY AND PROPERTY WITHOUT DUE
PROCESS OF LAW IN VIOLATION OF THE FIFTH AMENDMENT." 

IN THE COUNCIL CASE, IT WAS PREDICATED UPON A LACK OF "ANY ADVANCE
NOTICE" AND THE ATTORNEY GENERAL'S ACTING "WITHOUT MAKING 'AN
APPROPRIATE INVESTIGATION AND DETERMINATION,' AS REQUIRED" BY THE
ORDER.  IT WAS SAID: 

"THE AFORESAID ACTIONS OF THE DEFENDANTS HAVE BEEN ARBITRARY,
CAPRICIOUS, CONTRARY TO LAW, IN EXCESS OF STATUTORY RIGHT AND
AUTHORITY.  SUCH ACTIONS HAVE VIOLATED THE RIGHTS OF THE PLAINTIFFS
GUARANTEED BY THE FIRST AND FIFTH AMENDMENTS TO THE CONSTITUTION AND
ARE CONTRARY TO THE NINTH AND TENTH AMENDMENTS." 

THE SAME GENERAL ALLEGATIONS OF VIOLATIONS OF THE DUE PROCESS CLAUSE
AND THE FIRST AMENDMENT APPEAR IN NO. 71, INTERNATIONAL WORKERS ORDER,
INC. 

FN11  NORTZ V. UNITED STATES, 294 U.S. 317, 324; PIERCE OIL CORP. V.
CITY OF HOPE, 248 U.S. 498; STRAUS V. FOXWORTH, 231 U.S. 162, 168. 

FN12  BELL V. HOOD, 327 U.S. 678, 681, 684; LARSON V. DOMESTIC &
FOREIGN CORP., 337 U.S. 682, 690. 

FN13  UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 95, AND CASES
CITED; AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382, 394-399;
FEINER V. NEW YORK, 340 U.S. 315, 320-321. 

FN14  THE FAIRNESS OF THAT DESIGNATION IS CONSIDERED UNDER THE NEXT
POINT. 

FN15 PERHAPS THEY WOULD INSIST NOT ONLY ON NOTICE THAT AN
INVESTIGATION IS TO BE HAD BUT ON AN OPPORTUNITY TO BE PRESENT AND TO
HAVE COUNSEL, TO CROSS-EXAMINE, TO OBJECT TO THE INTRODUCTION OF
EVIDENCE, TO ARGUE AND TO HAVE JUDICIAL REVIEW.  CF. HIATT V. COMPAGNA,
178 F.2D 42, AFFIRMED BY AN EQUALLY DIVIDED COURT, 340 U.S. 880.  AN
INJUNCTION AGAINST LISTING COULD HAVE DELAYED ADMINISTRATION UNTIL
TODAY. 

THE STATUTORY REQUIREMENT FOR A HEARING EXPLAINS THE STATEMENT IN
MORGAN V. UNITED STATES, 304 U.S. 1, 14, THAT "IN ADMINISTRATIVE
PROCEEDINGS OF A QUASI-JUDICIAL CHARACTER THE LIBERTY AND PROPERTY OF
THE CITIZEN SHALL BE PROTECTED BY THE RUDIMENTARY REQUIREMENTS OF FAIR
PLAY.  THESE DEMAND 'A FAIR AND OPEN HEARING,'  - ESSENTIAL ALIKE TO
THE LEGAL VALIDITY OF THE ADMINISTRATIVE REGULATION AND TO THE
MAINTENANCE OF PUBLIC CONFIDENCE IN THE VALUE AND SOUNDNESS OF THIS
IMPORTANT GOVERNMENTAL PROCESS.  SUCH A HEARING HAS BEEN DESCRIBED AS
AN 'INEXORABLE SAFEGUARD.'"  THIS HEARING WAS A RATE DETERMINATION
PROCEEDING. 

SEE THE STATEMENT IN THE FIRST MORGAN CASE, 298 U.S. 468, 480:  "THAT
DUTY IS WIDELY DIFFERENT FROM ORDINARY EXECUTIVE ACTION.  IT IS A DUTY
WHICH CARRIES WITH IT FUNDAMENTAL PROCEDURAL REQUIREMENTS.  THERE MUST
BE A FULL HEARING.  THERE MUST BE EVIDENCE ADEQUATE TO SUPPORT
PERTINENT AND NECESSARY FINDINGS OF FACT." 

NO ENFORCEABLE RIGHTS TO A HEARING EXIST IN AN ALIEN SEEKING
ADMISSION TO THE UNITED STATES.  UNITED STATES EX REL. KNAUFF V.
SHAUGHNESSY, 338 U.S. 537, 544; EKIU V. UNITED STATES, 142 U.S. 651. 
TO THE EXTENT THAT NG FUNG HO V. WHITE, 259 U.S. 276, REQUIRES A
HEARING, IT IS ON THE ISSUE OF ALIENAGE, AND NOT OF ADMISSIBILITY. 

FN16  OF COURSE, NOTICE TO PETITIONERS THAT AN INVESTIGATION WAS TO
BE HAD TO DETERMINE WHETHER THEY HAD SEDITIOUS PURPOSES WOULD BE
USELESS WITHOUT OPPORTUNITY FOR AN ADMINISTRATIVE HEARING.  THAT IS THE
EFFECT OF PETITIONERS' ARGUMENT. 

FN17  FOR EXAMPLE, SHIELDS V. UTAH IDAHO R. CO., 305 U.S. 177,
INTERPRETED A STATUTORY REQUIREMENT FOR DETERMINATION BY THE INTERSTATE
COMMERCE COMMISSION OF THE SUBJECTION OF THE RAILROAD TO THE RAILWAY
LABOR ACT TO NECESSITATE PROCEDURAL DUE PROCESS, "THE HEARING OF
EVIDENCE AND ARGUMENT."  WE HELD, P. 183, THAT EQUITY HAD COGNIZANCE OF
AN OBJECTION TO THE PROCEEDING, AS "ARBITRARY AND CAPRICIOUS," P. 185,
BECAUSE FAILURE TO POST A PRESCRIBED NOTICE IS PUNISHABLE AS A CRIME. 
A "RIGHT" WAS ASSERTED. 

RELIANCE ON INTERSTATE COMMERCE COMM'N V. LOUISVILLE & N.R. CO., 227
U.S. 88, IS MISPLACED.  THE STATUTE GAVE A RIGHT TO A FULL HEARING, P.
91. 

UNITED STATES V. LOVETT, 328 U.S. 303, 316, PROTECTED AN EMPLOYEE
AGAINST WHAT THIS COURT HELD WAS LEGISLATIVE DECREE OF EXCLUSION FROM
GOVERNMENT EMPLOYMENT WITHOUT TRIAL. 

COLUMBIA BROADCASTING SYSTEM V. UNITED STATES, 316 U.S. 407, 418,
DEPENDS UPON THIS COURT'S RULING THAT THE REGULATION THERE SUBJECTED TO
ATTACK REQUIRED THE FEDERAL COMMUNICATIONS COMMISSION TO REJECT
APPLICATIONS AND CANCEL OUTSTANDING LICENSES "ON THE GROUNDS SPECIFIED
IN THE REGULATIONS WITHOUT MORE." 

FN18  DUKE V. UNITED STATES, 90 F.2D 840; UNITED STATES V. CENTRAL
SUPPLY ASSN., 34 F.SUPP.  241. 

FN19  46 STAT. 1421, 40 U.S.C.A. SEC. 258(A), AND ANNOTATIONS; CATLIN
V. UNITED STATES, 324 U.S. 229, 231. 

FN20  E.G., UNDERWRITERS FROM BANK EMPLOYMENT OR DIRECTION.  48 STAT.
194, AS AMENDED, 49 STAT. 709, 12 U.S.C. SEC. 78. 

FN21  THIS COURT HAS DECLARED THE COURTS CANNOT SUPERVISE
DEPARTMENTAL ACTION IN DISCHARGE FOR INEFFICIENT RATING, KEIM V. UNITED
STATES, 177 U.S. 290, OR ENJOIN LEASES OF PUBLIC LANDS WHERE NO
CONTRACT RIGHTS ARE INVOLVED, CHAPMAN V. SHERIDAN-WYOMING CO., 338 U.S.
621, 625.  CF. WORK V. RIVES, 267 U.S. 175. 

FN22  IT SAID, P. 111:  "IT WOULD BE INTOLERABLE THAT COURTS, WITHOUT
THE RELEVANT INFORMATION, SHOULD REVIEW AND PERHAPS NULLIFY ACTIONS OF
THE EXECUTIVE TAKEN ON INFORMATION PROPERLY HELD SECRET.  NOR CAN
COURTS SIT IN CAMERA IN ORDER TO BE TAKEN INTO EXECUTIVE CONFIDENCES. 
BUT EVEN IF COURTS COULD REQUIRE FULL DISCLOSURE, THE VERY NATURE OF
EXECUTIVE DECISIONS AS TO FOREIGN POLICY IS POLITICAL, NOT JUDICIAL. 
SUCH DECISIONS ARE WHOLLY CONFIDED BY OUR CONSTITUTION TO THE POLITICAL
DEPARTMENTS OF THE GOVERNMENT, EXECUTIVE AND LEGISLATIVE." 

AND ADDED, PP. 112-113: 

"UNTIL THE DECISION OF THE BOARD HAS PRESIDENTIAL APPROVAL, IT GRANTS
NO PRIVILEGE AND DENIES NO RIGHT.  IT CAN GIVE NOTHING AND CAN TAKE
NOTHING AWAY FROM THE APPLICANT OR A COMPETITOR.  IT MAY BE A STEP
WHICH IF ERRONEOUS WILL MATURE INTO A PREJUDICIAL RESULT, AS AN ORDER
FIXING VALUATIONS IN A RATE PROCEEDING MAY FORESHOW AND COMPEL A
PREJUDICIAL RATE ORDER.  BUT ADMINISTRATIVE ORDERS ARE NOT REVIEWABLE
UNLESS AND UNTIL THEY IMPOSE AN OBLIGATION, DENY A RIGHT OR FIX SOME
LEGAL RELATIONSHIP AS A CONSUMMATION OF THE ADMINISTRATIVE PROCESS." 

FN23  5 CFR, APP. A, P. 200, 13 FED. REG. 1471-1473: 

"IN CONNECTION WITH THE DESIGNATION OF THESE ORGANIZATIONS, THE
ATTORNEY GENERAL HAS POINTED OUT, AS THE PRESIDENT HAD DONE PREVIOUSLY,
THAT IT IS ENTIRELY POSSIBLE THAT MANY PERSONS BELONGING TO SUCH
ORGANIZATIONS MAY BE LOYAL TO THE UNITED STATES; THAT MEMBERSHIP IN,
AFFILIATION WITH, OR SYMPATHETIC ASSOCIATION WITH, ANY ORGANIZATION
DESIGNATED IS SIMPLY ONE PIECE OF EVIDENCE WHICH MAY OR MAY NOT BE
HELPFUL IN ARRIVING AT A CONCLUSION AS TO THE ACTION WHICH IS TO BE
TAKEN IN A PARTICULAR CASE.  'GUILT BY ASSOCIATION' HAS NEVER BEEN ONE
OF THE PRINCIPLES OF OUR AMERICAN JURISPRUDENCE.  WE MUST BE SATISFIED
THAT REASONABLE GROUNDS EXIST FOR CONCLUDING THAT AN INDIVIDUAL IS
DISLOYAL.  THAT MUST BE THE GUIDE." 

FN24  KEIM V. UNITED STATES, 177 U.S. 290; UNITED PUBLIC WORKERS V.
MITCHELL, 330 U.S. 75, 102.  CLASSIFIED CIVIL SERVICE EMPLOYEES BY
STATUTE SHALL HAVE NOTICE OF THE CHARGES IN WRITING AND THE PRIVILEGE
OF FILING AN ANSWER WITH AFFIDAVITS.  THE STATUTE ADDS, "NO EXAMINATION
OF WITNESSES NOR ANY TRIAL OR HEARING SHALL BE REQUIRED EXCEPT IN THE
DISCRETION OF THE OFFICER OR EMPLOYEE DIRECTING THE REMOVAL OR
SUSPENSION WITHOUT PAY."  37 STAT. 555, AS AMENDED, 5 U.S.C. SEC. 652. 
AND CF. EXECUTIVE ORDER DATED JULY 27, 1897, AMENDING CIVIL SERVICE
RULE II, IN 18TH REPORT OF THE U.S. CIVIL SERVICE COMMISSION, AT 282. 

FN25  5 CFR SEC. 220.2(A)(6).  SEE NOTE 4, SUPRA. 

FN26  "A TOTAL OF 3,166 GOVERNMENT EMPLOYEES HAVE QUIT OR HAVE BEEN
DISCHARGED UNDER PRESIDENT TRUMAN'S LOYALTY PROGRAM SINCE IT BEGAN
MARCH 21, 1947, THE LOYALTY REVIEW BOARD REPORTED TODAY. 

"OF THESE, 294 ACTUALLY WERE DISCHARGED FOR DISLOYALTY.  THE
REMAINDER, 2,872, QUIT WHILE UNDER INVESTIGATION AND MIGHT OR MIGHT NOT
HAVE BEEN FOUND DISLOYAL. 

"THE LOYALTY FIGURES COVER ALL 2,000,000 OR MORE GOVERNMENT
EMPLOYEES, PLUS THE ADDITIONAL THOUSANDS HIRED SINCE THE PROGRAM WAS
BEGUN IN THE SPRING OF 1947. 

"THE REGULAR MONTHLY LOYALTY REPORT SHOWED THAT LOYALTY BOARDS OF THE
VARIOUS FEDERAL AGENCIES HAD RECEIVED 13,842 REPORTS FROM THE FEDERAL
BUREAU OF INVESTIGATION AND OTHER INVESTIGATING AGENCIES SINCE MARCH
21, 1947.  THIS MEANT INVESTIGATORS FOUND SOMETHING ABOUT THOSE PERSONS
THAT RAISED A QUESTION ABOUT THEIR LOYALTY. 

"OF THE CASES RULED ON BY LOYALTY BOARDS, 8,371 WERE FOUND LOYAL AND
522 DISLOYAL.  OF THE 522, 294 WERE DISCHARGED, 186 WON THEIR JOBS BACK
ON APPEAL AND FORTY-TWO ARE STILL AWAITING DECISIONS."  NEW YORK TIMES,
JANUARY 16, 1951. 

SEE ALSO N. 9 OF MR. JUSTICE DOUGLAS' CONCURRENCE. 

FN27  DISQUALIFICATION GROUNDS ARE IN 5 CFR SEC. 2.104(A): 

"(A)  AN APPLICANT MAY BE DENIED EXAMINATION AND AN ELIGIBLE MAY BE
DENIED APPOINTMENT FOR ANY OF THE FOLLOWING REASONS: 

"(1)  DISMISSAL FROM EMPLOYMENT FOR DELINQUENCY OR MISCONDUCT. 

"(2)  PHYSICAL OR MENTAL UNFITNESS FOR THE POSITION FOR WHICH
APPLIED. 

"(3)  CRIMINAL, INFAMOUS, DISHONEST, IMMORAL, OR NOTORIOUSLY
DISGRACEFUL CONDUCT. 

"(4)  INTENTIONAL FALSE STATEMENTS OR DECEPTION OR FRAUD IN
EXAMINATION OR APPOINTMENT. 

"(5)  REFUSAL TO FURNISH TESTIMONY AS REQUIRED BY SEC. 5.3 OF THIS
CHAPTER. 

"(6)  HABITUAL USE OF INTOXICATING BEVERAGES TO EXCESS. 

"(7)  ON ALL THE EVIDENCE, REASONABLE GROUNDS EXIST FOR BELIEF THAT
THE PERSON INVOLVED IS DISLOYAL TO THE GOVERNMENT OF THE UNITED
STATES. 

"(8) ANY LEGAL OR OTHER DISQUALIFICATION WHICH MAKES THE APPLICANT
UNFIT FOR THE SERVICE." 

PARAGRAPH (7) IS NEW.  CF. 12 FED. REG. 1938. 

FN28  5 CFR SEC. 9.102(1): 

"NO EMPLOYEE, VETERAN OR NONVETERAN, SHALL BE SEPARATED, SUSPENDED,
OR DEMOTED EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE
SERVICE AND FOR REASONS GIVEN IN WRITING.  THE AGENCY SHALL NOTIFY THE
EMPLOYEE IN WRITING OF THE ACTION PROPOSED TO BE TAKEN.  THIS NOTICE
SHALL SET FORTH, SPECIFICALLY AND IN DETAIL, THE CHARGES PREFERRED
AGAINST HIM.  THE EMPLOYEE SHALL BE ALLOWED A REASONABLE TIME FOR
FILING A WRITTEN ANSWER TO SUCH CHARGES AND FURNISHING AFFIDAVITS IN
SUPPORT OF HIS ANSWER.  HE SHALL NOT, HOWEVER, BE ENTITLED TO AN
EXAMINATION OF WITNESSES, NOR SHALL ANY TRIAL OR HEARING BE REQUIRED
EXCEPT IN THE DISCRETION OF THE AGENCY."    SEE PART 22 FOR APPEALS
UNDER VETERANS' PREFERENCE ACT OF 1944. 

FN29  5 CFR, PART 220. 

FN30  5 CFR SEC. 220.2(F) AND (G). 

"(G)  ...  THE NOTICE OF PROPOSED REMOVAL ACTION REQUIRED IN
PARAGRAPH (F) OF THIS SECTION SHALL STATE TO THE EMPLOYEE:    "(1)  THE
CHARGES AGAINST HIM IN FACTUAL DETAIL, SETTING FORTH WITH PARTICULARITY
THE FACTS AND CIRCUMSTANCES RELATING TO THE CHARGES SO FAR AS SECURITY
CONSIDERATIONS WILL PERMIT, IN ORDER TO ENABLE THE EMPLOYEE TO SUBMIT
HIS ANSWER, DEFENSE OR EXPLANATION. 

"(2)  HIS RIGHT TO ANSWER THE CHARGES IN WRITING, UNDER OATH OR
AFFIRMATION, WITHIN A SPECIFIED REASONABLE PERIOD OF TIME, NOT LESS
THAN TEN (10) CALENDAR DAYS FROM THE DATE OF THE RECEIPT BY THE
EMPLOYEE OF THE NOTICE. 

"(3)  HIS RIGHT TO HAVE AN ADMINISTRATIVE HEARING ON THE CHARGES
BEFORE A LOYALTY BOARD IN THE AGENCY, UPON HIS REQUEST. 

"(4)  HIS RIGHT TO APPEAR BEFORE SUCH BOARD PERSONALLY, TO BE
REPRESENTED BY COUNSEL OR REPRESENTATIVE OF HIS OWN CHOOSING, AND TO
PRESENT EVIDENCE IN HIS BEHALF." 

ID., SEC. 220.3(D): 

"(D)  PRESENTATION OF EVIDENCE.  BOTH THE GOVERNMENT AND THE
APPLICANT OR EMPLOYEE MAY INTRODUCE SUCH EVIDENCE AS THE BOARD MAY DEEM
PROPER IN THE PARTICULAR CASE. 

"THE BOARD SHALL TAKE INTO CONSIDERATION THE FACT THAT THE APPLICANT
OR EMPLOYEE MAY HAVE BEEN HANDICAPPED IN HIS DEFENSE BY THE NON
DISCLOSURE TO HIM OF CONFIDENTIAL INFORMATION OR BY THE LACK OF
OPPORTUNITY TO CROSS-EXAMINE PERSONS CONSTITUTING SUCH SOURCES OF
INFORMATION." 

FN31  THE PRIME MINISTER FIRST DESCRIBED THIS PROGRAM IN A STATEMENT
IN THE HOUSE OF COMMONS, MARCH 15, 1948, 448 H.C. DEB.  1703 FF., AND
IN FURTHER DETAIL ON MARCH 25, ID. AT 3418 FF.  THE STANDARDS FOR THE
PROGRAM ARE SET FORTH AT 451 H.C. DEB., WRITTEN ANSWERS, P. 118, IN THE
FORM OF INSTRUCTIONS TO THREE "ADVISERS ON COMMUNISTS AND FASCISTS IN
THE CIVIL SERVICE," RETIRED CIVIL SERVANTS DESIGNATED TO PERFORM A
FUNCTION ESSENTIALLY PARALLEL TO THAT OF THE LOYALTY REVIEW BOARD
HERE: 

"1.  THE GOVERNMENT HAVE STATED THAT NO ONE WHO IS BELIEVED TO BE:
 

"(I)  EITHER A MEMBER OF THE COMMUNIST PARTY OR OF A FASCIST
ORGANISATION; OR 

"(II)  ASSOCIATED WITH EITHER THE COMMUNIST PARTY OR A FASCIST
ORGANISATION IN SUCH A WAY AS TO RAISE LEGITIMATE DOUBTS ABOUT HIS
RELIABILITY; 

IS TO BE EMPLOYED IN CONNECTION WITH WORK THE NATURE OF WHICH IS
VITAL TO THE SECURITY OF THE STATE. 

"2.  YOU HAVE BEEN APPOINTED TO ADVISE MINISTERS, IN ANY CASES
REFERRED TO YOU, WHETHER IN YOUR OPINION THEIR PRIMA FACIE RULING THAT
A CIVIL SERVANT COMES UNDER (I) OR (II) ABOVE IS OR IS NOT
SUBSTANTIATED.  THE DECISION ON WHAT EMPLOYMENT IS TO BE REGARDED AS
INVOLVING 'CONNECTION WITH WORK THE NATURE OF WHICH IS VITAL TO THE
SECURITY OF THE STATE' IS ONE NOT FOR YOU BUT FOR MINISTERS IN CHARGE
OF DEPARTMENTS. 

"3.  YOUR FUNCTIONS DO NOT EXTEND BEYOND ADVISING THE MINISTER WHETHER
THE PRIMA FACIE CASE HAS OR HAS NOT BEEN SUBSTANTIATED.  YOU ARE NOT
CONCERNED WITH THE ACTION WHICH HE MAY DECIDE TO TAKE IN RELATION TO
THE MATTER." 

THE PRIME MINISTER STATED THAT THE CIVIL SERVANT CONCERNED WOULD BE
INFORMED AS SPECIFICALLY AS POSSIBLE OF THE CHARGES AGAINST HIM, BUT
THAT "IT IS QUITE IMPOSSIBLE - AND EVERYONE WILL REALISE THAT IT IS -
THAT WE SHOULD GIVE IN DETAIL EXACTLY THE SOURCES OF INFORMATION.  IF
WE DO THAT, WE DESTROY ANYTHING LIKE AN EFFECTIVE SECURITY SERVICE." 
ID., VOL. 448, AT 3423.  HE WOULD BE ALLOWED TO APPEAR PERSONALLY IN
RESPONSE TO CHARGES.  ID. AT 3425. 

WHILE THE PROGRAM IS PRIMARILY INTENDED TO EFFECT THE TRANSFER OF
UNRELIABLE CIVIL SERVANTS TO JOBS NOT VITAL TO THE SECURITY OF THE
STATE (UNLESS THEIR TECHNICAL TRAINING FITS THEM ONLY FOR SECURITY
JOBS), NEVERTHELESS IT HAS APPARENTLY BEEN EXTENDED TO COVER ALL JOBS
IN CERTAIN AGENCIES, SUCH AS THE AIR MINISTRY HEADQUARTERS.  ID., VOL.
452, AT 940-941. 

THE PRIME MINISTER DID NOT ANSWER DIRECTLY QUESTIONS AS TO THE SCOPE
OF THE ORDER IN RELATION TO "THE TELEPHONE SERVICE AND KEY TELEPHONE
EXCHANGES," ID., VOL. 448, AT 1705, OR "MEMBERS OF THE SERVICES WHO ARE
ENGAGED IN DEALING WITH SECRET PROCESSES."  ID. AT 1706. 

FN32  CF. STANDARD COMPUTING SCALE CO. V. FARRELL, 249 U.S. 571. 

FN33  HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 93, 100. 

FN34  HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 426,
442. 
..END :



BOWMAN DAIRY CO. V. UNITED STATES, 341 U.S. 214 


NO. 435.  ARGUED MARCH 9, 1951.  - DECIDED APRIL 30, 1951.  - 185 F.2D
159, JUDGMENT VACATED. 


BEFORE TRIAL ON AN INDICTMENT FOR VIOLATION OF SEC. 1 OF THE SHERMAN
ACT, DEFENDANTS OBTAINED UNDER RULE 16 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE AN ORDER REQUIRING THE GOVERNMENT TO PRODUCE FOR INSPECTION
ALL DOCUMENTS OR OBJECTS OBTAINED FROM DEFENDANTS AND OBTAINED BY
SEIZURE OR PROCESS FROM OTHERS.  THE GOVERNMENT COMPLIED WITH THAT
ORDER.  DEFENDANTS ALSO MOVED, UNDER RULE 17(C), FOR AN ORDER DIRECTING
COMPLIANCE WITH A SUBPOENA DUCES TECUM REQUIRING THE PRODUCTION FOR
INSPECTION OF CERTAIN DOCUMENTS AND OBJECTS OBTAINED BY THE GOVERNMENT
BY MEANS OTHER THAN SEIZURE OR PROCESS AND WHICH (A) HAD BEEN PRESENTED
TO THE GRAND JURY, OR (B) WERE TO BE OFFERED AS EVIDENCE AT THE TRIAL,
OR "(C) ARE RELEVANT TO THE ALLEGATIONS OR CHARGES CONTAINED IN SAID
INDICTMENT, WHETHER OR NOT THEY MIGHT CONSTITUTE EVIDENCE WITH RESPECT
TO THE GUILT OR INNOCENCE OF ANY OF THE DEFENDANTS."  FOR REFUSAL TO
COMPLY WITH THIS ORDER, RESPONDENT, A GOVERNMENT ATTORNEY WHO HAD
POSSESSION OF THE SUBPOENAED MATERIALS, WAS FOUND GUILTY OF CONTEMPT. 
HELD: 

1.  UNDER RULE 17(C), ANY DOCUMENT OR OTHER MATERIAL WHICH HAS BEEN
OBTAINED BY THE GOVERNMENT BY SOLICITATION OR VOLUNTARILY FROM THIRD
PERSONS, AND WHICH IS ADMISSIBLE IN EVIDENCE, IS SUBJECT TO SUBPOENA. 
PP. 218-221. 

(A)  IT IS NOT REQUIRED THAT MATERIALS THUS SUBPOENAED BE ACTUALLY
USED IN EVIDENCE, BUT ONLY THAT A GOOD-FAITH EFFORT BE MADE TO OBTAIN
EVIDENCE; AND THE COURT MAY CONTROL THE USE OF RULE 17(C) TO THAT END
BY ITS POWER TO RULE ON MOTIONS TO QUASH OR MODIFY.  PP. 219-220. 

(B)  WHERE SUCH MATERIALS ARE REQUIRED TO BE PRODUCED, THE COURT
SHOULD BE SOLICITOUS TO PROTECT AGAINST DISCLOSURES OF THE IDENTITY OF
INFORMANTS AND THE METHOD, MANNER AND CIRCUMSTANCES OF THE GOVERNMENT'S
ACQUISITION OF THE MATERIALS.  P. 221. 

2.  CLAUSE (C) OF THE SUBPOENA IS INVALID, BEING NOT INTENDED TO
PRODUCE EVIDENTIARY MATERIALS BUT BEING MERELY "A FISHING EXPEDITION TO
SEE WHAT MAY TURN UP."  P. 221. 

3.  THE SUBPOENA BEING PART GOOD AND PART BAD, RESPONDENT MAY NOT BE
HELD IN CONTEMPT FOR REFUSAL TO COMPLY WITH IT.  P. 221. 

BOWMAN DAIRY CO. ET AL. V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

UPON REVIEW OF AN ORDER OF THE DISTRICT COURT FINDING A GOVERNMENT
ATTORNEY GUILTY OF CONTEMPT FOR REFUSAL TO COMPLY WITH A SUBPOENA DUCES
TECUM, THE COURT OF APPEALS REVERSED.  185 F.2D 159.  THIS COURT
GRANTED CERTIORARI.  340 U.S. 919.  JUDGMENT VACATED AND CAUSE REMANDED
TO THE DISTRICT COURT, P. 222. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE INDICTED FOR A VIOLATION OF SEC. 1 OF THE SHERMAN
ACT.  FN1  BEFORE THE CASE WAS SET FOR TRIAL, EACH PETITIONER FILED A
MOTION UNDER RULE 16 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE  FN2
FOR AN ORDER REQUIRING THE UNITED STATES TO PRODUCE FOR INSPECTION ALL
BOOKS, PAPERS, DOCUMENTS, OR OBJECTS OBTAINED FROM PETITIONERS AND
OBTAINED BY SEIZURE OR PROCESS FROM OTHERS.  AN AGREED ORDER WAS
ENTERED BY THE COURT AND THE GOVERNMENT FULLY COMPLIED THEREWITH.  THE
VALIDITY OF THIS ORDER IS NOT IN QUESTION. 

PETITIONERS ALSO MOVED UNDER RULE 17(C) FN3  FOR AN ORDER DIRECTING
THE GOVERNMENT AT A TIME AND PLACE TO BE SPECIFIED THEREIN TO PRODUCE
FOR INSPECTION CERTAIN OTHER BOOKS, PAPERS, DOCUMENTS AND OBJECTS
OBTAINED BY THE GOVERNMENT BY MEANS OTHER THAN SEIZURE OR PROCESS. 
PETITIONERS FILED AND SERVED ON THE GOVERNMENT ATTORNEYS A SUBPOENA
DUCES TECUM, THE PERTINENT PART OF WHICH READS AS FOLLOWS: 

"ALL DOCUMENTS, BOOKS, PAPERS AND OBJECTS (EXCEPT MEMORANDA PREPARED
BY GOVERNMENT COUNSEL, AND DOCUMENTS OR PAPERS SOLICITED BY OR
VOLUNTEERED TO GOVERNMENT COUNSEL WHICH CONSIST OF NARRATIVE STATEMENTS
OF PERSONS OR MEMORANDA OF INTERVIEWS), OBTAINED BY GOVERNMENT COUNSEL,
IN ANY MANNER OTHER THAN BY SEIZURE OR PROCESS, (A) IN THE COURSE OF
THE INVESTIGATION BY GRAND JURY NO. 8949 WHICH RESULTED IN THE RETURN
OF THE INDICTMENT HEREIN, AND (B) IN THE COURSE OF THE GOVERNMENT'S
PREPARATION FOR THE TRIAL OF THIS CAUSE, IF SUCH BOOKS, PAPERS,
DOCUMENTS AND OBJECTS, (A) HAVE BEEN PRESENTED TO THE GRAND JURY; OR
(B) ARE TO BE OFFERED AS EVIDENCE ON THE TRIAL OF THE DEFENDANTS, OR
ANY OF THEM, UNDER SAID INDICTMENT; OR (C) ARE RELEVANT TO THE
ALLEGATIONS OR CHARGES CONTAINED IN SAID INDICTMENT, WHETHER OR NOT
THEY MIGHT CONSTITUTE EVIDENCE WITH RESPECT TO THE GUILT OR INNOCENCE
OF ANY OF THE DEFENDANTS  ...  " 

A HEARING WAS HELD AND THE COURT ENTERED AN ORDER DIRECTING THE
GOVERNMENT TO PRODUCE FOR PETITIONERS' INSPECTION THE MATERIALS
DESIGNATED IN THE SUBPOENA. 

THEREAFTER THE GOVERNMENT MOVED TO QUASH THE SUBPOENA AND TO SET
ASIDE THE ORDER, CONTENDING THAT THE ACCESS OF A DEFENDANT IN A
CRIMINAL PROCEEDING TO MATERIALS IN CUSTODY OF GOVERNMENT ATTORNEYS IS
LIMITED TO RIGHTS GRANTED BY RULE 16 AND THAT THE DISTRICT COURT HAD
ERRED IN ORDERING PRODUCTION OF THE SUBPOENAED MATERIALS.  THIS MOTION
WAS DENIED.  RESPONDENT HOTCHKISS, ONE OF THE GOVERNMENT ATTORNEYS TO
WHOM THE SUBPOENA WAS ADDRESSED, HAD POSSESSION OF THE MATERIALS CALLED
FOR, BUT REFUSED TO PRODUCE ANY OF THEM.  AFTER A HEARING, THE DISTRICT
COURT HELD HIM IN CONTEMPT.  THE COURT OF APPEALS REVERSED, 185 F.2D
159.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE SCOPE OF
RULE 17(C) IN FEDERAL PRACTICE.  340 U.S. 919. 

DURING THE HEARING ON PETITIONERS' MOTIONS FOR AN ORDER UNDER RULE
17(C), RESPONDENT HOTCHKISS, ACTING FOR THE GOVERNMENT, HAD OFFERED TO
PRODUCE, AND TO ENTER INTO A STIPULATION THEREFOR, ALL DOCUMENTS OF
EVIDENTIARY CHARACTER, IN THE CUSTODY OF THE GOVERNMENT OBTAINED OTHER
THAN BY SEIZURE OR PROCESS, I.E., DOCUMENTS OTHER THAN THE WORK PRODUCT
OF THE GOVERNMENT, SOLICITED AND VOLUNTEERED NARRATIVE STATEMENTS, AND
MEMORANDA OF INTERVIEWS.  HOWEVER, THIS OFFER DID NOT INCLUDE DOCUMENTS
FURNISHED THE GOVERNMENT BY VOLUNTARY AND CONFIDENTIAL INFORMANTS. 

THE SUBPOENA WAS BROAD ENOUGH TO INCLUDE ANY DOCUMENTS AND OTHER
MATERIALS THAT HAD BEEN FURNISHED THE GOVERNMENT BY VOLUNTARY
INFORMANTS AND WHICH DID NOT "CONSIST OF NARRATIVE STATEMENTS OF
PERSONS OR MEMORANDA OF INTERVIEWS."  THE GOVERNMENT'S CHIEF OBJECTION
TO THE SUBPOENA, AS STATED TO THE COURT BY RESPONDENT HOTCHKISS, WAS AS
FOLLOWS: 

"MR. HOTCHKISS:  THERE IS ONLY ONE OBJECTION - BASIC OBJECTION WHICH
I WOULD MAKE TO THE FORM WHICH IS PROPOSED:  THIS LANGUAGE IN THIS
SUBPOENA OR PROPOSED SUBPOENA, AS I CONSTRUE IT DOES NOT PROTECT THOSE
CONFIDENTIAL INFORMANTS WHO HAVE PROVIDED THE GOVERNMENT WITH
CONFIDENTIAL MATERIAL WHICH THE GOVERNMENT FEELS ON THE BASIS OF VERY
WELL ESTABLISHED PRINCIPLES FOLLOWED BY THE COURTS ARE NORMALLY
PROTECTED FROM THE VIEW OF LITIGANTS." 

IT APPEARS FROM RESPONDENT'S COLLOQUY WITH THE COURT THAT THE
CONFIDENTIAL MATERIAL WHICH HE WOULD EXCEPT FROM THE SUBPOENA CONSISTED
OF "DOCUMENTS FURNISHED THE GOVERNMENT WITHOUT PROCESS OR SEIZURE BY
VOLUNTARY INFORMANTS." 

IT WAS INTENDED BY THE RULES TO GIVE SOME MEASURE OF DISCOVERY.  RULE
16 WAS ADOPTED FOR THAT PURPOSE.  IT GAVE DISCOVERY AS TO DOCUMENTS AND
OTHER MATERIALS OTHERWISE BEYOND THE REACH OF THE DEFENDANT WHICH, AS
IN THE INSTANT CASE, MIGHT BE NUMEROUS AND DIFFICULT TO IDENTIFY.  THE
RULE WAS TO APPLY NOT ONLY TO DOCUMENTS AND OTHER MATERIALS BELONGING
TO THE DEFENDANT, BUT ALSO TO THOSE BELONGING TO OTHERS WHICH HAD BEEN
OBTAINED BY SEIZURE OR PROCESS.  THIS WAS A DEPARTURE FROM WHAT HAD
THERETOFORE BEEN ALLOWED IN CRIMINAL CASES.  FN4 

RULE 16 DEALS WITH DOCUMENTS AND OTHER MATERIALS THAT ARE IN THE
POSSESSION OF THE GOVERNMENT AND PROVIDES HOW THEY MAY BE MADE
AVAILABLE TO THE DEFENDANT FOR HIS INFORMATION.  IN THE INTEREST OF
ORDERLY PROCEDURE IN THE HANDLING OF BOOKS, PAPERS, DOCUMENTS AND
OBJECTS IN THE CUSTODY OF THE GOVERNMENT ACCUMULATED IN THE COURSE OF
AN INVESTIGATION AND SUBPOENAED FOR USE BEFORE THE GRAND JURY AND ON
THE TRIAL, IT WAS PROVIDED BY RULE 16 THAT THE COURT COULD ORDER SUCH
MATERIALS MADE AVAILABLE TO THE DEFENDANT FOR INSPECTION AND COPYING OR
PHOTOGRAPHING.  IN THAT WAY, THE CONTROL AND POSSESSION OF THE
GOVERNMENT IS NOT DISTURBED.  RULE 16 PROVIDES THE ONLY WAY THE
DEFENDANT CAN REACH SUCH MATERIALS SO AS TO INFORM HIMSELF. 

BUT IF SUCH MATERIALS OR ANY PART OF THEM ARE NOT PUT IN EVIDENCE BY
THE GOVERNMENT, THE DEFENDANT MAY SUBPOENA THEM UNDER RULE 17(C) AND
USE THEM HIMSELF.  IT WOULD BE STRANGE INDEED IF THE DEFENDANT
DISCOVERED SOME EVIDENCE BY THE USE OF RULE 16 WHICH THE GOVERNMENT WAS
NOT GOING TO INTRODUCE AND YET COULD NOT REQUIRE ITS PRODUCTION BY RULE
17(C).  THERE MAY BE DOCUMENTS AND OTHER MATERIALS IN THE POSSESSION OF
THE GOVERNMENT NOT SUBJECT TO RULE 16.  NO GOOD REASON APPEARS TO US
WHY THEY MAY NOT BE REACHED BY SUBPOENA UNDER RULE 17(C) AS LONG AS
THEY ARE EVIDENTIARY.  THAT IS NOT TO SAY THAT THE MATERIALS THUS
SUBPOENAED MUST ACTUALLY BE USED IN EVIDENCE.  IT IS ONLY REQUIRED THAT
A GOOD-FAITH EFFORT BE MADE TO OBTAIN EVIDENCE.  THE COURT MAY CONTROL
THE USE OF RULE 17(C) TO THAT END BY ITS POWER TO RULE ON MOTIONS TO
QUASH OR MODIFY.  FN5 

IT WAS NOT INTENDED BY RULE 16 TO GIVE A LIMITED RIGHT OF DISCOVERY,
AND THEN BY RULE 17 TO GIVE A RIGHT OF DISCOVERY IN THE BROADEST
TERMS.  RULE 17 PROVIDED FOR THE USUAL SUBPOENA AD TESTIFICANDUM AND
DUCES TECUM, WHICH MAY BE ISSUED BY THE CLERK, WITH THE PROVISION THAT
THE COURT MAY DIRECT THE MATERIALS DESIGNATED IN THE SUBPOENA DUCES
TECUM TO BE PRODUCED AT A SPECIFIED TIME AND PLACE FOR INSPECTION BY
THE DEFENDANT.  RULE 17(C) WAS NOT INTENDED TO PROVIDE AN ADDITIONAL
MEANS OF DISCOVERY.  ITS CHIEF INNOVATION WAS TO EXPEDITE THE TRIAL BY
PROVIDING A TIME AND PLACE BEFORE TRIAL FOR THE INSPECTION OF THE
SUBPOENAED MATERIALS.  UNITED STATES V. MARYLAND & VIRGINIA MILK
PRODUCERS ASSN., 9 F.R.D. 509.  HOWEVER, THE PLAIN WORDS OF THE RULE
ARE NOT TO BE IGNORED.  THEY MUST BE GIVEN THEIR ORDINARY MEANING TO
CARRY OUT THE PURPOSE OF ESTABLISHING A MORE LIBERAL POLICY FOR THE
PRODUCTION, INSPECTION AND USE OF MATERIALS AT THE TRIAL.  THERE WAS NO
INTENTION TO EXCLUDE FROM THE REACH OF PROCESS OF THE DEFENDANT ANY
MATERIAL THAT HAD BEEN USED BEFORE THE GRAND JURY OR COULD BE USED AT
THE TRIAL.  IN SHORT, ANY DOCUMENT OR OTHER MATERIALS, ADMISSIBLE AS
EVIDENCE, OBTAINED BY THE GOVERNMENT BY SOLICITATION OR VOLUNTARILY
FROM THIRD PERSONS IS SUBJECT TO SUBPOENA.  IT WAS MATERIAL OF THIS
CHARACTER WHICH THE GOVERNMENT WAS UNWILLING TO STIPULATE TO PRODUCE OR
TO PRODUCE IN OBEDIENCE TO THE SUBPOENA.  SUCH MATERIALS WERE SUBJECT
TO THE SUBPOENA.  WHERE THE COURT CONCLUDES THAT SUCH MATERIALS OUGHT
TO BE PRODUCED, IT SHOULD, OF COURSE, BE SOLICITOUS TO PROTECT AGAINST
DISCLOSURES OF THE IDENTITY OF INFORMANTS, AND THE METHOD, MANNER AND
CIRCUMSTANCES OF THE GOVERNMENT'S ACQUISITION OF THE MATERIALS. 

CLAUSE (C), WHICH IS THE LAST CLAUSE IN THE SUBPOENA, READS AS
FOLLOWS: 

"ARE RELEVANT TO THE ALLEGATIONS OR CHARGES CONTAINED IN SAID
INDICTMENT, WHETHER OR NOT THEY MIGHT CONSTITUTE EVIDENCE WITH RESPECT
TO THE GUILT OR INNOCENCE OF ANY OF THE DEFENDANTS  ...  " 

THIS IS A CATCH-ALL PROVISION, NOT INTENDED TO PRODUCE EVIDENTIARY
MATERIALS BUT IS MERELY A FISHING EXPEDITION TO SEE WHAT MAY TURN UP.
THE CLAUSE IS THEREFORE INVALID. 

THE SUBPOENA CALLS FOR MATERIALS WHICH THE GOVERNMENT IS BOUND TO
PRODUCE AND FOR MATERIALS IT IS NOT BOUND TO PRODUCE.  THE DISTRICT
COURT SAID:  "GIVE US ALL."  THE GOVERNMENT REPLIED:  "WE WILL GIVE YOU
NOTHING."  BOTH WERE WRONG.  THE GOVERNMENT SHOULD PRODUCE THE
EVIDENTIARY MATERIALS CALLED FOR BY THE SUBPOENA.  IT NEED NOT PRODUCE
ANYTHING UNDER CLAUSE (C). 

ONE SHOULD NOT BE HELD IN CONTEMPT UNDER A SUBPOENA THAT IS PART GOOD
AND PART BAD.  THE BURDEN IS ON THE COURT TO SEE THAT THE SUBPOENA IS
GOOD IN ITS ENTIRETY AND IT IS NOT UPON THE PERSON WHO FACES PUNISHMENT
TO CULL THE GOOD FROM THE BAD. 

ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE
CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  26 STAT. 209, 15 U.S.C. SEC. 1. 

FN2  "RULE 16.  DISCOVERY AND INSPECTION. 

"UPON MOTION OF A DEFENDANT AT ANY TIME AFTER THE FILING OF THE
INDICTMENT OR INFORMATION, THE COURT MAY ORDER THE ATTORNEY FOR THE
GOVERNMENT TO PERMIT THE DEFENDANT TO INSPECT AND COPY OR PHOTOGRAPH
DESIGNATED BOOKS, PAPERS, DOCUMENTS OR TANGIBLE OBJECTS, OBTAINED FROM
OR BELONGING TO THE DEFENDANT OR OBTAINED FROM OTHERS BY SEIZURE OR BY
PROCESS, UPON A SHOWING THAT THE ITEMS SOUGHT MAY BE MATERIAL TO THE
PREPARATION OF HIS DEFENSE AND THAT THE REQUEST IS REASONABLE.  THE
ORDER SHALL SPECIFY THE TIME, PLACE AND MANNER OF MAKING THE INSPECTION
AND OF TAKING THE COPIES OR PHOTOGRAPHS AND MAY PRESCRIBE SUCH TERMS
AND CONDITIONS AS ARE JUST." 

FN3  "RULE 17.  SUBPOENA. 

"(A)  FOR ATTENDANCE OF WITNESSES; FORM; ISSUANCE.  A SUBPOENA SHALL
BE ISSUED BY THE CLERK ...  AND SHALL COMMAND EACH PERSON TO WHOM IT IS
DIRECTED TO ATTEND AND GIVE TESTIMONY AT THE TIME AND PLACE SPECIFIED
THEREIN.  THE CLERK SHALL ISSUE A SUBPOENA, SIGNED AND SEALED BUT
OTHERWISE IN BLANK TO A PARTY REQUESTING IT, WHO SHALL FILL IN THE
BLANKS BEFORE IT IS SERVED. 

     .         .         .         .    . 

"(C)  FOR PRODUCTION OF DOCUMENTARY EVIDENCE AND OF OBJECTS.  A
SUBPOENA MAY ALSO COMMAND THE PERSON TO WHOM IT IS DIRECTED TO PRODUCE
THE BOOKS, PAPERS, DOCUMENTS OR OTHER OBJECTS DESIGNATED THEREIN.  THE
COURT ON MOTION MADE PROMPTLY MAY QUASH OR MODIFY THE SUBPOENA IF
COMPLIANCE WOULD BE UNREASONABLE OR OPPORESSIVE.  THE COURT MAY DIRECT
THAT BOOKS, PAPERS, DOCUMENTS OR OBJECTS DESIGNATED IN THE SUBPOENA BE
PRODUCED BEFORE THE COURT AT A TIME PRIOR TO THE TRIAL OR PRIOR TO THE
TIME WHEN THEY ARE TO BE OFFERED IN EVIDENCE AND MAY UPON THEIR
PRODUCTION PERMIT THE BOOKS, PAPERS, DOCUMENTS OR OBJECTS OR PORTIONS
THEREOF TO BE INSPECTED BY THE PARTIES AND THEIR ATTORNEYS." 

FN4  SEE ADVISORY COMMITTEE'S NOTE TO RULE 16, 18 U.S.C., P. 1969. 

FN5  "WE ALSO FIND IN THE SAME RULE, UNDER (C), A PROVISION FOR THE
PRODUCTION OF DOCUMENTARY EVIDENCE OR OBJECTS - THE FAMILIAR SUBPOENA
DUCES TECUM - AND IF THE PERSON UPON WHOM THE SUBPOENA IS SERVED THINKS
IT IS BROAD OR UNREASONABLE OR OPPRESSIVE HE MAY APPLY TO THE COURT TO
QUASH THE SUBPOENA.  FURTHERMORE, WHILE NORMALLY UNDER A SUBPOENA THE
BOOKS AND OTHER THINGS CALLED FOR WOULD MERELY BE BROUGHT INTO COURT AT
THE TIME OF THE TRIAL, LET US SAY IMMEDIATELY BEFORE THEY ARE TO BE
OFFERED IN EVIDENCE, THERE IS A PROVISION IN THIS RULE THAT THE COURT
MAY, IN THE PROPER CASE, DIRECT THAT THEY BE BROUGHT INTO COURT IN
ADVANCE OF THE TIME THAT THEY ARE OFFERED IN EVIDENCE, SO THAT THEY MAY
THEN BE INSPECTED IN ADVANCE, FOR THE PURPOSE OF COURSE OF ENABLING THE
PARTY TO SEE WHETHER HE CAN USE IT OR WHETHER HE WANTS TO USE IT." 
STATEMENT OF MR. G. AARON YOUNGQUIST, MEMBER OF ADVISORY COMMITTEE,
FEDERAL RULES OF CRIMINAL PROCEDURE, PROCEEDINGS OF THE INSTITUTE ON
FEDERAL RULES OF CRIMINAL PROCEDURE (NEW YORK UNIVERSITY SCHOOL OF LAW,
INSTITUTE PROCEEDINGS, VOL. VI, 1946), PP. 167-168. 

MR. JUSTICE BLACK WOULD AFFIRM THE DISTRICT COURT.    MR. JUSTICE
CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :














UNITED STATES V. WILLIAMS, 341 U.S. 58 


NO. 134.  ARGUED JANUARY 8, 1951.  - DECIDED APRIL 23, 1951.  - 93
F.SUPP.  922, REVERSED. 


IN A PROSECUTION FOR VIOLATION OF WHAT IS NOW 18 U.S.C. SEC. 242,
ARISING OUT OF THE ALLEGED BEATING OF PERSONS TO COERCE CONFESSIONS,
AND FOR CONSPIRACY AGAINST FOURTEENTH AMENDMENT RIGHTS OF CITIZENS IN
ALLEGED VIOLATION OF WHAT IS NOW 18 U.S.C. SEC. 241, APPELLEE WILLIAMS
WAS CONVICTED AND THE OTHER THREE APPELLEES WERE ACQUITTED OF THE
SUBSTANTIVE OFFENSES, AND THE JURY WAS UNABLE TO AGREE ON A VERDICT ON
THE CONSPIRACY COUNTS.  APPELLEES WERE REINDICTED FOR THE CONSPIRACY
AND WERE CONVICTED; BUT, ON APPEAL, THE COURT OF APPEALS REVERSED AND
ORDERED THE INDICTMENT QUASHED ON THE GROUND THAT SEC. 241 DOES NOT
EMBRACE FOURTEENTH AMENDMENT RIGHTS.  AN INDICTMENT OF APPELLEES UNDER
18 U.S.C. SEC. 1621 FOR PERJURY IN THE FIRST TRIAL, CHARGING WILLIAMS
WITH FALSELY TESTIFYING THAT HE HAD NOT BEATEN THE VICTIMS, AND
CHARGING THE OTHER APPELLEES WITH FALSELY TESTIFYING THAT THEY HAD NOT
SEEN WILLIAMS BEATING THE VICTIMS, WAS DISMISSED BY THE DISTRICT
COURT.  HELD: 

1.  THE CONVICTION OF WILLIAMS ON THE CHARGE OF BEATING THE VICTIMS
DID NOT BAR, AS DOUBLE JEOPARDY, HIS PROSECUTION FOR PERJURY IN
TESTIFYING FALSELY THAT HE HAD NOT BEATEN THEM.  P. 62. 

2.  THAT THE OTHER APPELLEES HAD BEEN ACQUITTED OF THE SUBSTANTIVE
OFFENSE OF AIDING AND ABETTING WILLIAMS IN ABUSING THE VICTIMS DID NOT
BAR, ON THE GROUND OF RES JUDICATA, THEIR SUBSEQUENT PROSECUTION FOR
PERJURY IN TESTIFYING THAT THEY HAD NOT SEEN WILLIAMS BEATING THEM. 
SEALFON V. UNITED STATES, 332 U.S. 575, DISTINGUISHED.  PP. 63-65. 

3.  TESTIFYING FALSELY IN THE FIRST TRIAL ON THE CONSPIRACY CHARGES
CONSTITUTED PERJURY UNDER 18 U.S.C. SEC. 1621, EVEN THOUGH ON APPEAL IT
WAS DETERMINED THAT THE LATER INDICTMENT FOR CONSPIRACY WAS DEFECTIVE. 
PP. 65-69. 

(A)  IN THE TRIAL OF THE FIRST CONSPIRACY CHARGES THE DISTRICT COURT
HAD JURISDICTION OF THE SUBJECT MATTER (AN ALLEGED VIOLATION OF A
FEDERAL CONSPIRACY STATUTE) AND OF THE PARTIES, AND THEREFORE WAS A
"COMPETENT TRIBUNAL" WITHIN THE REQUIREMENT OF THE PERJURY STATUTE. 
PP. 65-66. 

(B)  THE CIRCUMSTANCE THAT ULTIMATELY IT IS DETERMINED ON APPEAL THAT
THE INDICTMENT IS DEFECTIVE DOES NOT AFFECT THE JURISDICTION OF THE
TRIAL COURT TO DETERMINE THE CASE PRESENTED BY THE INDICTMENT.  P. 66. 

(C)  WHERE THE COURT IN THE PROCEEDINGS IN WHICH THE ALLEGED PERJURY
OCCURRED HAD JURISDICTION TO RENDER JUDGMENT ON THE MERITS IN THOSE
PROCEEDINGS, DEFECTS DEVELOPED DEHORS THE RECORD OR IN THE PROCEDURE,
SUFFICIENT TO INVALIDATE ANY JUDGMENT ON REVIEW, DO NOT BAR A
CONVICTION FOR PERJURY.  PP. 67-69. 

UNITED STATES V. WILLIAMS ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

THE DISTRICT COURT DISMISSED AN INDICTMENT OF APPELLEES FOR PERJURY
UNDER 18 U.S.C. SEC. 1621.  93 F.SUPP.  922.  ON DIRECT APPEAL TO THIS
COURT UNDER 18 U.S.C. SEC. 3731, REVERSED, P. 69. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES APPEALS FROM AN ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF FLORIDA DISMISSING AN INDICTMENT
AGAINST THE APPELLEES HERE.  18 U.S.C. SEC. 3731.  THAT INDICTMENT, 18
U.S.C. SEC. 1621, CHARGED EACH APPELLEE WITH THE CRIME OF PERJURY WHILE
TESTIFYING IN A PRIOR CRIMINAL TRIAL.  THE FORMER TRIAL WAS ON CHARGES
OF USING "THIRD DEGREE" METHODS TO FORCE CONFESSIONS FROM PRISONERS. 

IN THAT PRIOR TRIAL, SIX DEFENDANTS - THE FOUR APPELLEES AND TWO
OTHERS NOT HERE INVOLVED - WERE PROSECUTED UNDER AN INDICTMENT, FOUR
COUNTS OF WHICH CHARGED THEM, 18 U.S.C. (1946 ED.)  SEC.  51, NOW 18
U.S.C. SEC. 241, WITH CONSPIRING "TO INJURE, OPPRESS, THREATEN, AND
INTIMIDATE STATES) IN THE FREE EXERCISE AND ENJOYMENT OF THE RIGHTS AND
PRIVILEGES SECURED  ...  AND PROTECTED BY THE FOURTEENTH AMENDMENT. 
...  "  FN1 

THE OTHER FOUR COUNTS OF THE INDICTMENT, 18 U.S.C. (1946 ED.)  SEC. 
52, NOW 18 U.S.C. SEC. 242, CHARGED THAT WILLIAMS, BOMBACI, FORD, AND
ANOTHER NOT HERE INVOLVED, AS POLICE OFFICERS ACTING UNDER STATE LAWS,
COMMITTED SUBSTANTIVE CRIMES BY SUBJECTING FOUR PERSONS TO DEPRIVATION
OF CERTAIN "OF THE RIGHTS, PRIVILEGES AND IMMUNITIES SECURED  ...  AND
PROTECTED BY THE FOURTEENTH AMENDMENT,"  FN2  AND THAT YUHAS AND
ANOTHER WILFULLY AIDED AND ABETTED IN THE COMMISSION OF THESE
SUBSTANTIVE OFFENSES. 

IN THE PRIOR TRIAL, DURING WHICH THIS INDICTMENT CHARGES PERJURY WAS
COMMITTED, WILLIAMS WAS FOUND GUILTY BY A JURY OF THE SUBSTANTIVE
OFFENSES.  HIS CONVICTION IS AFFIRMED TODAY.  SEE NO. 365, WILLIAMS V.
UNITED STATES, POST, P. 97.  THE JURY FOUND BOMBACI AND FORD NOT GUILTY
OF THESE OFFENSES AND YUHAS NOT GUILTY OF AIDING AND ABETTING IN THE
COMMISSION OF THESE OFFENSES.  HOWEVER, THE JURY WAS UNABLE TO AGREE ON
A VERDICT AS TO THE FOUR COUNTS WHICH CHARGED CONSPIRACY.  LATER A NEW
INDICTMENT WAS PRESENTED WHICH FRAMED ONCE AGAIN THE CONSPIRACY
CHARGES, AND THIS TIME THE APPELLEES IN THIS CASE WERE FOUND GUILTY. 
THE PERJURY CHARGES NOW BEFORE US ARE NOT BASED ON THE PROCEEDINGS IN
THE SECOND CONSPIRACY TRIAL.  ON APPEAL FROM THE CONVICTION IN THE
SECOND TRIAL, AND BEFORE THE TRIAL FOR PERJURY, THE COURT OF APPEALS
QUASHED THE CONSPIRACY INDICTMENT AND REVERSED.  SO FAR AS HERE
IMPORTANT, THE BASIS FOR THE REVERSAL WAS THAT SEC. 241 DID NOT APPLY
TO THE GENERAL RIGHTS EXTENDED TO ALL PERSONS BY THE FOURTEENTH
AMENDMENT.  179 F.2D 644, 648.  THIS COURT, TODAY, AFFIRMS THE COURT OF
APPEALS.  NO. 26, UNITED STATES V. WILLIAMS, DECIDED TODAY, POST, P.
70. 

IN DISMISSING THE INDICTMENT IN THE CASE NOW BEFORE US, THE DISTRICT
COURT HELD, 93 F.SUPP.  922, THAT SINCE WILLIAMS HAD BEEN CONVICTED IN
THE FIRST TRIAL OF THE SUBSTANTIVE COUNTS BASED UPON HIS BEATING
CERTAIN VICTIMS, TO CONVICT WILLIAMS OF PERJURY FOR TESTIFYING THAT HE
HAD NOT BEATEN THE VICTIMS - WHICH IS THE GIST OF THE PERJURY
INDICTMENT AGAINST WILLIAMS - WOULD CONSTITUTE DOUBLE JEOPARDY. 

THE DISTRICT COURT FURTHER REASONED THAT THE JURY'S FINDING THAT
YUHAS, FORD AND BOMBACI HAD NOT BEEN GUILTY OF THE SUBSTANTIVE OFFENSES
IN THE FIRST TRIAL, WAS A DETERMINATION OF THEIR INNOCENCE "WHETHER AS
PRINCIPALS OR ACCESSORIES," AND THEREFORE NONE OF THE THREE COULD BE
FOUND GUILTY OF THE CHARGE MADE BY THE PERJURY INDICTMENT: TESTIFYING
FALSELY THAT THEY HAD NOT SEEN OR OBSERVED WILLIAMS BEATING THE
VICTIMS. 

FINALLY, THE DISTRICT COURT REASONED THAT SINCE THE LATER INDICTMENT
WHICH REPEATED THE CONSPIRACY CHARGES HAD BEEN QUASHED ON APPEAL, THERE
WAS NO JURISDICTION TO TRY THE DEFENDANTS ON THE CONSPIRACY COUNTS IN
THE FIRST CRIMINAL TRIAL, AND THEREFORE THE PERJURY COUNTS BASED ON THE
CONSPIRACY COUNTS IN THE PRIOR CASE WERE BAD. 

THE UNITED STATES IN ITS APPEAL URGES THAT THE DISTRICT COURT ERRED
IN ALL THREE GROUNDS FOR QUASHING THE PERJURY INDICTMENT.  THE FEDERAL
PERJURY STATUTE, 18 U.S.C. SEC. 1621, READS AS FOLLOWS: 

"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." 

ITS TERMS COVER PARTIES AS WELL AS OTHER WITNESSES.  IF ANY INCIDENT
OR JUDGMENT OF A FORMER TRIAL BARS A PROSECUTION FOR PERJURY UNDER SEC.
1621, THAT EFFECT MUST BE IMPORTED INTO THE PERJURY TRIAL BY A LEGAL
RULE DISTINCT FROM THE STATUTE. 

I. FORMER JEOPARDY.  - THE CONVICTION OF WILLIAMS, AT A FORMER TRIAL,
FOR BEATING CERTAIN VICTIMS IS NOT FORMER OR DOUBLE JEOPARDY. 
OBVIOUSLY PERJURY AT A FORMER TRIAL IS NOT THE SAME OFFENSE AS THE
SUBSTANTIVE OFFENSE, UNDER 18 U.S.C. SEC. 242, OF DEPRIVING A PERSON OF
CONSTITUTIONAL RIGHTS UNDER COLOR OF LAW.  "IT IS ONLY AN IDENTITY OF
OFFENSES WHICH IS FATAL."  PINKERTON V. UNITED STATES, 328 U.S. 640,
644, AND CASES CITED.  THE TRIAL COURT DOES NOT CITE ANY AUTHORITY FOR
A CONTRARY POSITION, AND APPELLEES CONCEDE THAT THE GROUND FOR
DISMISSAL CANNOT BE SUSTAINED.  IT WOULD BE NO SERVICE TO THE
ADMINISTRATION OF JUSTICE TO ENLARGE THE CONCEPTION OF FORMER JEOPARDY
TO AFFORD A DEFENDANT IMMUNITY FROM PROSECUTION FOR PERJURY WHILE
GIVING TESTIMONY IN HIS OWN DEFENSE.  APPELLEES' BRIEF TREATS WILLIAMS'
CONVICTION AS GROUNDS FOR ESTOPPEL OR RES JUDICATA. 

II.  RES JUDICATA.  - THOUGH FORMER JEOPARDY BY TRIAL FOR THE
SUBSTANTIVE CRIMES IS NOT AVAILABLE AS A DEFENSE AGAINST THIS PERJURY
INDICTMENT, IT COULD BE THAT ACQUITTAL ON THE SUBSTANTIVE CHARGES WOULD
OPERATE "TO CONCLUDE THOSE MATTERS IN ISSUE WHICH THE VERDICT
DETERMINED THOUGH THE OFFENSES BE DIFFERENT."  SEALFON V. UNITED
STATES, 332 U.S. 575, 578. 

PETITIONER IN THE SEALFON CASE WAS ACQUITTED OF A CONSPIRACY CHARGE
OF DEFRAUDING THE UNITED STATES OF ITS GOVERNMENTAL FUNCTION OF
CONSERVING AND RATIONING SUGAR.  ONE ITEM OF EVIDENCE WAS A LETTER TO
AN ALLEGED CO-CONSPIRATOR SAID TO FURNISH A BASIS FOR GETTING SUGAR
ILLEGALLY.  ON ANOTHER INDICTMENT FOR UTTERING FALSE INVOICES FOR THE
SAME SUGAR INVOLVED IN THE CONSPIRACY, SEALFON MOVED TO QUASH ON THE
GROUND OF RES JUDICATA.  THE MOTION WAS DENIED AND SEALFON WAS
CONVICTED.  THE TEST OF THE SOUNDNESS OF THE MOTION WAS WHETHER THE
"VERDICT IN THE CONSPIRACY TRIAL WAS A DETERMINATION FAVORABLE TO
PETITIONER OF THE FACTS ESSENTIAL TO CONVICTION OF THE SUBSTANTIVE
OFFENSE."  P. 578.  WE THOUGHT THE ACQUITTAL OF CONSPIRACY DETERMINED
THAT SEALFON DID NOT CONSPIRE WITH GREENBERG, THE ONLY ALLEGED CO
CONSPIRATOR.  ADMITTEDLY SEALFON WROTE A CERTAIN LETTER.  "AS WE READ
THE RECORDS OF THE TWO TRIALS, PETITIONER COULD BE CONVICTED OF EITHER
OFFENSE ONLY ON PROOF THAT HE WROTE THE LETTER PURSUANT TO AN AGREEMENT
WITH GREENBERG."  P. 580.  THE CORE OF THE TWO CASES WAS THE SAME.  AS
THE FIRST TRIAL CLEARED HIM OF SENDING THE LETTER PURSUANT TO A CORRUPT
AGREEMENT, THAT FACT WAS RES JUDICATA.  A LIKE BASIS FOR RES JUDICATA
DOES NOT EXIST HERE. 

FORD AND BOMBACI WERE ACQUITTED IN THE FORMER TRIAL ON ALL COUNTS
CHARGING SUBSTANTIVE CRIMES.  YUHAS WAS CHARGED AND ACQUITTED OF AIDING
AND ABETTING.  WE SHALL ASSUME WITH THE DISTRICT COURT THAT FORD AND
BOMBACI WERE ACQUITTED ALSO OF THAT CHARGE.  18 U.S.C. SEC. 2(A).  IN
ESSENCE THE FIRST PROSECUTION WAS FOR ARREST AND ABUSE THROUGH BEATINGS
BY POLICE OFFICERS WILLIAMS, FORD AND BOMBACI, ACTING UNDER THE LAWS OF
FLORIDA, WITH YUHAS AIDING AND ABETTING.  THE PERJURY CHARGED IN THIS
PRESENT INDICTMENT, ALLEGEDLY COMMITTED AT THAT FORMER TRIAL IN WHICH
ALL EXCEPT WILLIAMS WERE ACQUITTED OF THE SUBSTANTIVE OFFENSES, IS THAT
THE THREE ACQUITTED MEN TESTIFIED FALSELY THAT THEY HAD NOT SEEN
WILLIAMS ABUSE THE PRISONER.  THE TRIAL COURT THOUGHT THAT "WHETHER
THEY HAD SEEN OR OBSERVED WILLIAMS BEAT THE VICTIMS WAS A PART AND
PARCEL OF THE CHARGE AGAINST THEM IN THE SUBSTANTIVE COUNTS" OF ABUSE
AND AIDING AND ABETTING THE ABUSE.  EHRLICH V. UNITED STATES, 145 F.2D
693, WAS CITED.  FN3  93 F.SUPP.  922. 

WE DO NOT THINK THE FACTS BRING ANY OF THESE DEFENDANTS WITHIN THE
PROTECTION OF RES JUDICATA, AS RECENTLY EXPOUNDED IN SEALFON.  AIDING
AND ABETTING MEANS TO ASSIST THE PERPETRATOR OF THE CRIME.  FN4  THE
SUBSTANTIVE FORMER CHARGE AGAINST APPELLEES HERE WAS ABUSE OF A
PRISONER BY POLICE OFFICERS UNDER COLOR OF STATE LAW.  AN ACQUITTAL OF
SUCH A CRIME OR OF AIDING AND ABETTING WAS CERTAINLY NOT A
DETERMINATION THAT FORD, BOMBACI OR YUHAS DID NOT SEE WILLIAMS
ASSAULTING THE PRISONERS. 

III.  THE COUNTS IN THIS INDICTMENT WHICH CHARGE THAT PERJURY WAS
COMMITTED IN THE FIRST CONSPIRACY TRIAL RELY ON THE SAME FACTS TO PROVE
THE PERJURY AS ARE DETAILED ABOVE TO SUPPORT THE COUNTS OF THE
INDICTMENT WHICH CHARGE PERJURY IN THE TRIAL OF THE SUBSTANTIVE
COUNTS.  THE TRIAL COURT IN THE PRESENT CASE DISMISSED THE COUNTS FOR
PERJURY COMMITTED IN THE FIRST TRIAL OF THE CONSPIRACY CHARGE FOR A
DIFFERENT REASON THAN IT GAVE FOR DISMISSAL OF THE OTHER PERJURY
COUNTS.  IN THE FIRST TRIAL NO VERDICT WAS REACHED BY THE JURY ON THE
CONSPIRACY COUNTS.  THE TRIAL COURT IN THIS CASE, HOWEVER, RELYING UPON
THE DETERMINATION OF THE FIFTH CIRCUIT IN THE SECOND CONSPIRACY TRIAL,
WILLIAMS V. UNITED STATES, 179 F.2D 644(NOW AFFIRMED HERE, NO. 26,
UNITED STATES V. WILLIAMS, POST, P. 70, DECIDED TODAY), RULED THAT THE
FORMER CONSPIRACY INDICTMENT DID NOT STATE AN OFFENSE, AND CONSEQUENTLY
PERJURY COULD NOT HAVE BEEN COMMITTED.  THE COURT SAID IT REACHED THIS
CONCLUSION BECAUSE THE COURT THAT TRIED THE CONSPIRACY INDICTMENT HAD
"NO JURISDICTION."  EVIDENTLY, THE TRIAL COURT WAS LED TO THIS
CONCLUSION BY THE REQUIREMENT OF THE PERJURY STATUTE, 18 U.S.C. SEC.
1621, THAT THERE MUST BE A "COMPETENT TRIBUNAL" BEFORE A FALSE
STATEMENT IS PERJURIOUS. 

THE CHARGE IN THE CONSPIRACY COUNTS THAT THE APPELLEES, POLICE
OFFICERS AND OTHERS, CONSPIRED TO ABUSE A PRISONER IN THEIR HANDS WAS
BASED ON 18 U.S.C. SEC. 241.  THE DISTRICT COURT HAD JURISDICTION OF
OFFENSES AGAINST THE LAWS OF THE UNITED STATES.  18 U.S.C. SEC. 3231. 
FN5  HENCE, IT HAD JURISDICTION OF THE SUBJECT MATTER, TO WIT, AN
ALLEGED VIOLATION OF A FEDERAL CONSPIRACY STATUTE, AND, OF COURSE, OF
THE PERSONS CHARGED.  THIS MADE THE TRIAL TAKE PLACE BEFORE "A
COMPETENT TRIBUNAL":  A COURT AUTHORIZED TO RENDER JUDGMENT ON THE
INDICTMENT.  THE CIRCUMSTANCE THAT ULTIMATELY IT IS DETERMINED ON
APPEAL THAT THE INDICTMENT IS DEFECTIVE DOES NOT AFFECT THE
JURISDICTION OF THE TRIAL COURT TO DETERMINE THE CASE PRESENTED BY THE
INDICTMENT. 

THIS WAS HELD AS TO A CIVIL PROCEEDING IN BELL V. HOOD, 327 U.S.
678.  IN THAT CASE, A SUIT IN A FEDERAL DISTRICT COURT FOR DAMAGES
AGAINST FEDERAL OFFICERS FOR VIOLATION OF PLAINTIFF'S RIGHTS TO DUE
PROCESS IN ARREST AND FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE
UNDER THE FOURTH AND FIFTH AMENDMENTS WAS HELD TO GIVE THE DISTRICT
COURT JURISDICTION SUFFICIENT TO CALL FOR JUDGMENT ON THE MERITS, EVEN
THOUGH THAT JUDGMENT SHOULD DISMISS THE COMPLAINT FOR FAILURE TO STATE
A CAUSE OF ACTION.  P. 682.  "JURISDICTION IS THE POWER TO DECIDE A
JUSTICIABLE CONTROVERSY, AND INCLUDES QUESTIONS OF LAW AS WELL AS OF
FACT."  BINDERUP V. PATHE EXCHANGE, 263 U.S. 291, 305.  EVEN THE
UNCONSTITUTIONALITY OF THE STATUTE UNDER WHICH THE PROCEEDING IS
BROUGHT DOES NOT OUST A COURT OF JURISDICTION.  CHICOT COUNTY DISTRICT
V. BAXTER STATE BANK, 308 U.S. 371, 376.  SEE ALSO STOLL V. GOTTLIEB,
305 U.S. 165; M'CORMICK V. SULLIVANT, 10 WHEAT.  192. 

IT IS TRUE THAT THERE ARE CERTAIN ESSENTIAL FACTS THAT MUST EXIST TO
GIVE ANY POWER TO A COURT.  NOBLE V. UNION RIVER LOGGING R. CO., 147
U.S. 165, 173.  AS THE EXISTENCE OF THOSE FACTS ARE SO PLAINLY
NECESSARY, E.G. PROCESS, EXAMPLES OF DECISIONS ARE RARE.  ABSENCE OF
SUCH FACTS MAKES THE PROCEEDINGS A NULLITY.  SUCH A CASE WAS KALB V.
FEUERSTEIN, 308 U.S. 433.  WE THERE HELD THAT THE FEDERAL GOVERNMENT,
IN THE EXERCISE OF ITS PLENARY POWER OVER BANKRUPTCY, HAD OUSTED STATE
COURTS OF ALL INDEPENDENT POWER OVER FARMER BANKRUPTS.  THEREFORE ANY
SUBSEQUENT ORDERS IN THE STATE COURTS WERE VOID.  PP. 440-444.  IN A
CRIMINAL CASE WE HAVE SAID THAT A PERSON CONVICTED BY A COURT WITHOUT
JURISDICTION OVER THE PLACE OF THE CRIME COULD BE RELEASED FROM
RESTRAINT BY HABEAS CORPUS WHERE THERE WERE EXCEPTIONAL CIRCUMSTANCES
SUCH AS A CONFLICT OF JURISDICTION BETWEEN THE STATE AND THE FEDERAL
GOVERNMENT.  BOWEN V. JOHNSTON, 306 U.S. 19, 27.  THE KIND OF JUDICIAL
CONTROVERSIES PRESENTED FOR ADJUDICATION IN THE CASES CITED ABOVE IN
THIS PARAGRAPH WERE NOT COGNIZABLE BY THE RESPECTIVE COURTS.  IT IS
ABSENCE OF SUCH BASIC FACTS OF JURISDICTION THAT HAS LED COURTS TO SAY
THAT FALSE TESTIMONY IN THE PROCEEDINGS IS NOT PUNISHABLE AS PERJURY. 
WHERE PERJURY CHARGES ARISE FROM ALLEGED FALSE STATEMENTS BY THE
DEFENDANT IN FORMER TRIALS, WHETHER IN THAT FORMER TRIAL HE WAS ALSO A
DEFENDANT OR ONLY A WITNESS, THE SAME DISTINCTIONS APPEAR.  WHERE THE
COURT OF THE FIRST TRIAL HAD NO JURISDICTION OF THE KIND OF JUDICIAL
CONTROVERSIES PRESENTED FOR ADJUDICATION, A NUMBER OF COURTS HAVE HELD
THAT FALSE TESTIMONY IN THOSE PROCEEDINGS IS NOT PUNISHABLE AS
PERJURY.  FN6  SO IN A CASE WHERE THE COURT HAD GENERAL JURISDICTION OF
THE KIND OF PROSECUTION, LARCENY LESS THAN FELONY, BUT NOT OF THE
PARTICULAR PROCEEDING, LARCENY AS A FELONY, THERE WAS NO PERJURY. 
JOHNSON V. STATE, 58 GA. 397.  BUT WHERE THE COURT IN THE TRIAL WHERE
THE ALLEGED PERJURY OCCURRED HAD JURISDICTION TO RENDER JUDGMENT ON THE
MERITS IN THOSE PROCEEDINGS, DEFECTS DEVELOPED DEHORS THE RECORD  FN7
OR IN THE PROCEDURE, SUFFICIENT TO INVALIDATE ANY JUDGMENT ON REVIEW,
FN8  DO NOT MAKE A SUBSEQUENT CONVICTION FOR PERJURY IN THE FORMER
TRIAL IMPOSSIBLE. 

ONE CAN FIND INCONSISTENT AND INDEED CONFLICTING RULINGS AMONG THE
CASES, EVEN FROM THE SAME JURISDICTIONS, PERHAPS ATTRIBUTABLE TO THE
USE OF THE WORD "JURISDICTION" IN THE HETEROGENEOUS SITUATIONS THAT
OCCUR.  THE LINE IS NARROW AND OFTEN WAVERING BETWEEN ERRORS IN THE
PROCEEDINGS AND LACK OF JURISDICTION.  WHARTON, CRIMINAL LAW (12TH
ED.), SEC. 1538.  HERE, HOWEVER, WE HAVE A FEDERAL STATUTE ENACTED IN
AN EFFORT TO KEEP THE COURSE OF JUSTICE FREE FROM THE POLLUTION OF
PERJURY.  WE HAVE A COURT EMPOWERED TO TAKE COGNIZANCE OF THE CRIME OF
PERJURY AND DECIDE THE ISSUES UNDER THAT STATUTE.  THE EFFECT OF THE
ALLEGED FALSE TESTIMONY COULD NOT RESULT IN A MISCARRIAGE OF JUSTICE IN
THIS CASE BUT THE FEDERAL STATUTE AGAINST PERJURY IS NOT DIRECTED SO
MUCH AT ITS EFFECTS AS AT ITS PERPETRATION; AT THE PROBABLE WRONG DONE
THE ADMINISTRATION OF JUSTICE BY FALSE TESTIMONY.  THAT STATUTE HAS LED
FEDERAL COURTS TO UPHOLD CHARGES OF PERJURY DESPITE ARGUMENTS THAT THE
FEDERAL COURT AT THE TRIAL AFFECTED BY THE PERJURY COULD NOT ENTER A
VALID JUDGMENT DUE TO LACK OF DIVERSITY JURISDICTION,  FN9  OR DUE TO
THE UNCONSTITUTIONALITY OF THE STATUTE OUT OF WHICH THE PERJURY
PROCEEDINGS AROSE.  FN10 

WHERE A FEDERAL COURT HAS POWER, AS HERE, TO PROCEED TO A
DETERMINATION ON THE MERITS, THAT IS JURISDICTION OF THE PROCEEDINGS. 
THE DISTRICT COURT HAS SUCH JURISDICTION N11.  THOUGH THE TRIAL COURT
OR AN APPELLATE COURT MAY CONCLUDE THAT THE STATUTE IS WHOLLY
UNCONSTITUTIONAL, OR THAT THE FACTS STATED IN THE INDICTMENT DO NOT
CONSTITUTE A CRIME OR ARE NOT PROVEN, IT HAS PROCEEDED WITH
JURISDICTION AND FALSE TESTIMONY BEFORE IT UNDER OATH IS PERJURY. 
REVERSED. 

FN1  THE INDICTMENT SPECIFIED THE FOLLOWING "RIGHTS AND PRIVILEGES": 

"  ...  THE RIGHT AND PRIVILEGE NOT TO BE DEPRIVED OF LIBERTY WITHOUT
DUE PROCESS OF LAW, THE RIGHT AND PRIVILEGE TO BE SECURE IN HIS PERSON
WHILE IN THE CUSTODY OF THE STATE OF FLORIDA, THE RIGHT AND PRIVILEGE
NOT TO BE SUBJECTED TO PUNISHMENT WITHOUT DUE PROCESS OF LAW, THE RIGHT
AND PRIVILEGE TO BE IMMUNE, WHILE IN THE CUSTODY OF PERSONS ACTING
UNDER COLOR OF THE LAWS OF THE STATE OF FLORIDA, FROM ILLEGAL ASSAULT
AND BATTERY BY ANY PERSON EXERCISING THE AUTHORITY OF SAID STATE, AND
THE RIGHT AND PRIVILEGE TO BE TRIED BY DUE PROCESS OF LAW AND IF FOUND
GUILTY TO BE SENTENCED AND PUNISHED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF FLORIDA; ...  " 

FN2  THE SPECIFIC "RIGHTS AND PRIVILEGES" ARE THE SAME AS THOSE
LISTED IN NOTE 1. 

FN3  IN THE EHRLICH CASE AN ACQUITTAL OF A CHARGE OF VIOLATION OF THE
PRICE CONTROL ACT, 50 U.S.C. APP. SEC. 901 ET SEQ., BY COLLECTING MORE
THAN THE SALE BILLS FOR MEAT SHOWED WAS HELD TO BAR A PERJURY CHARGE
THAT EHRLICH HAD SWORN FALSELY THAT HE HAD NOT RECEIVED ANY PAYMENT FOR
ANY SALE AT A PRICE IN EXCESS OF THAT SHOWN ON THE SALES SLIPS.  IT WAS
HELD THAT THE PLEA IN BAR OF THE SECOND PROSECUTION WAS GOOD ON THE
GROUND THAT THE ALLEGEDLY PERJURIOUS WORDS WERE THE BASIS OF THE FORMER
CRIME CHARGED AND THEREFORE THE ACQUITTAL BARRED THE PERJURY
PROSECUTION. 

A NUMBER OF OTHER CASES ARE CITED IN APPELLEES' BRIEF.  THEY SUPPORT
THE RULE THAT AN ACQUITTAL ON FACTS ESSENTIAL TO CONVICTION ON THE
SUBSEQUENT CHARGE BARS A LATER PROSECUTION.  NONE DEAL WITH THE
SITUATION OF WILLIAMS WHO WAS CONVICTED ON THE PRIOR TRIAL OF ABUSE
UNDER 18 U.S.C. SEC. 242.  HE CAN, OF COURSE, CLAIM NO BAR AGAINST
PROSECUTION ON A THEORY OF ESTOPPEL SINCE THE FACTS IN THE FORMER
TRIAL, IF APPLICABLE TO THE SUBSEQUENT ONE, WERE FOUND AGAINST HIM. 
THE CASES ARE:  UNITED STATES V. DE ANGELO, 138 F.2D 466; UNITED STATES
V. BUTLER, 38 F. 498; CHITWOOD V. UNITED STATES, 178 F. 442; ALLEN V.
UNITED STATES, 194 F. 664; YOUNGBLOOD V. UNITED STATES, 266 F. 795;
KUSKULIS V. UNITED STATES, 37 F.2D 241. 

FN4  TO BE PRESENT AT A CRIME IS NOT EVIDENCE OF GUILT AS AN AIDER OR
ABETTOR.  HICKS V. UNITED STATES, 150 U.S. 442, 447, 450.  CF. UNITED
STATES V. DI RE, 332 U.S. 581, 587; 12 A.L.R. 279.  THE INSTRUCTIONS AT
THE TRIAL OF THE SUBSTANTIVE CRIMES FOLLOWED THIS RULE.  E.G., "I CAN'T
MAKE IT TOO EMPHATIC TO YOU, GENTLEMEN, THAT MERE PRESENCE WHEN A CRIME
IS COMMITTED IS, OF COURSE, NOT SUFFICIENT TO RENDER ONE GUILTY AS
AIDER OR ABETTOR." 

FN5  "THE DISTRICT COURTS OF THE UNITED STATES SHALL HAVE ORIGINAL
JURISDICTION, EXCLUSIVE OF THE COURTS OF THE STATES, OF ALL OFFENSES
AGAINST THE LAWS OF THE UNITED STATES. 

"NOTHING IN THIS TITLE SHALL BE HELD TO TAKE AWAY OR IMPAIR THE
JURISDICTION OF THE COURTS OF THE SEVERAL STATES UNDER THE LAWS
THEREOF." 

FN6  E.G., COLLINS V. STATE, 78 ALA. 433; PAINE'S CASE, YEL.  111, 80
ENG. REP. 76(1792). 

FN7  82 A.L.R. 1138. 

FN8  82 A.L.R. 1137. 

FN9  WEST V. UNITED STATES, 258 F. 413, 416. 

FN10  BOEHM V. UNITED STATES, 123 F.2D 791, 809.  CF. KAY V. UNITED
STATES, 303 U.S. 1, 6; HOWAT V. KANSAS, 258 U.S. 181, 186, 189; BLAIR
V. UNITED STATES, 250 U.S. 273; UNITED STATES V. UNITED MINE WORKERS,
330 U.S. 258, 289-295. 

FN11  THE VALIDITY OF SEC. 241 HAS BEEN REPEATEDLY UPHELD.  E.G.,
UNITED STATES V. MOSLEY, 238 U.S. 383, 386; LOGAN V. UNITED STATES, 144
U.S. 263, 293; EX PARTE YARBROUGH, 110 U.S. 651, 667. 

MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER DISSENT. 
..END :








UNITED STATES V. WILLIAMS, 341 U.S. 70 


NO. 26.  ARGUED JANUARY 8, 1951.  - DECIDED APRIL 23, 1951.  - 179 F.2D
644, AFFIRMED. 


AFTER ONE OF THE RESPONDENTS HAD BEEN CONVICTED AND THE OTHERS
ACQUITTED OF SUBSTANTIVE OFFENSES UNDER WHAT IS NOW 18 U.S.C. SEC. 242
I.E., BEATING OR AIDING AND ABETTING THE BEATING OF CERTAIN SUSPECTS
UNTIL THEY CONFESSED TO A THEFT - THEY WERE CONVICTED IN THE FEDERAL
DISTRICT COURT FOR A VIOLATION OF WHAT IS NOW 18 U.S.C. SEC. 241.  THE
INDICTMENT AROSE OUT OF THE SAME FACTS AND ALLEGED THAT, "ACTING UNDER
THE LAWS OF  ...  FLORIDA," THEY "CONSPIRED TO INJURE  ...  A CITIZEN
OF THE UNITED STATES AND OF THE STATE OF FLORIDA, IN THE FREE EXERCISE
AND ENJOYMENT OF THE RIGHTS AND PRIVILEGES SECURED TO HIM AND PROTECTED
BY THE FOURTEENTH AMENDMENT."  THE COURT OF APPEALS REVERSED THEIR
CONVICTION ON THIS CONSPIRACY INDICTMENT.  HELD:  THE JUDGMENT OF THE
COURT OF APPEALS IS AFFIRMED.  P. 82. 

(A)  MR. JUSTICE FRANKFURTER, JOINED BY THE CHIEF JUSTICE, MR.
JUSTICE JACKSON AND MR. JUSTICE MINTON, WAS OF THE OPINION THAT SEC.
241 ONLY COVERS CONDUCT WHICH INTERFERES WITH RIGHTS ARISING FROM THE
SUBSTANTIVE POWERS OF THE FEDERAL GOVERNMENT, AND THAT INCLUDING AN
ALLEGATION THAT THE DEFENDANTS ACTED UNDER COLOR OF STATE LAW IN AN
INDICTMENT UNDER SEC. 241 DOES NOT EXTEND THE PROTECTION OF THE SECTION
TO RIGHTS WHICH THE FEDERAL CONSTITUTION MERELY GUARANTEES AGAINST
ABRIDGMENT BY THE STATES.  PP. 71-82. 

(B)  MR. JUSTICE BLACK CONCURRED IN THE RESULT ON THE GROUND THAT
TRIAL UNDER THIS CONSPIRACY INDICTMENT WAS BARRED BY THE PRINCIPLE OF
RES JUDICATA.  PP. 85-86. 

MR. JUSTICE DOUGLAS, JOINED BY MR. JUSTICE REED, MR. JUSTICE BURTON
AND MR. JUSTICE CLARK, DISSENTED.  P. 87. 

UNITED STATES V. WILLIAMS ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

A CONVICTION OF RESPONDENTS FOR VIOLATION OF WHAT IS NOW 18 U.S.C.
SEC. 241 WAS REVERSED BY THE COURT OF APPEALS.  179 F.2D 644.  THIS
COURT GRANTED CERTIORARI.  340 U.S. 849.  AFFIRMED, P. 82. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE JACKSON AND MR. JUSTICE
MINTON JOINED. 

IN 1947 A FLORIDA CORPORATION EMPLOYED A DETECTIVE AGENCY TO
INVESTIGATE THEFTS OF ITS PROPERTY.  THE INQUIRY WAS CONDUCTED BY ONE
WILLIAMS, THE HEAD OF THE AGENCY, AND AMONG THE PARTICIPANTS WERE TWO
OF HIS EMPLOYEES AND A MEMBER OF THE MIAMI POLICE FORCE DETAILED TO
ASSIST IN THE INVESTIGATION.  CERTAIN OF THE COMPANY'S EMPLOYEES FELL
UNDER SUSPICION; AND WILLIAMS AND HIS COLLABORATORS, WITHOUT ARRESTING
THE SUSPECTS, TOOK THEM ONE BY ONE TO A SHACK ON THE COMPANY'S
PREMISES.  THERE THE INVESTIGATORS SUBJECTED THEM TO THE FAMILIAR
"THIRD-DEGREE" WHICH, AFTER BLOWS, KICKS, THREATS, AND PROLONGED
EXPOSURE TO A BRILLIANT LIGHT, YIELDED "CONFESSIONS." 

WILLIAMS AND THE OTHER THREE WERE THEREUPON INDICTED FOR VIOLATION OF
SECS. 19 AND 20 OF THE CRIMINAL CODE OF THE UNITED STATES.  18 U.S.C.
(1946 ED.)  SECS.  51 AND 52, NOW 18 U.S.C. SECS. 241 AND 242. 
WILLIAMS WAS CONVICTED UNDER SEC. 20, THE INDICTMENT ALLEGING THAT HE
"WILFULLY, UNDER COLOR OF THE LAWS, STATUTES, ORDINANCES, REGULATIONS
AND CUSTOMS OF THE STATE OF FLORIDA  ... SUBJECTED  ...  AN INHABITANT
OF THE STATE OF FLORIDA, TO DEPRIVATION OF THE RIGHTS, PRIVILEGES AND
IMMUNITIES SECURED TO HIM AND PROTECTED BY THE FOURTEENTH AMENDMENT
...  "  THIS CONVICTION IS REVIEWED IN NO. 365, POST, P. 97, ALSO
DECIDED THIS DAY.  THE OTHER DEFENDANTS WERE ACQUITTED OF THE CHARGES
UNDER SEC. 20, AND AS TO ALL DEFENDANTS A MISTRIAL WAS DECLARED UNDER
SEC. 19.  THIS OUTCOME OF THE INDICTMENT UNDER SECS. 19 AND 20 WAS
FOLLOWED BY A NEW INDICTMENT AGAINST THE FOUR DEFENDANTS UNDER SEC.
19.  THE INDICTMENT ALLEGED THAT "ACTING UNDER THE LAWS OF THE STATE OF
FLORIDA" THE DEFENDANTS "CONSPIRED TO INJURE  ...  A CITIZEN OF THE
UNITED STATES AND OF THE STATE OF FLORIDA, IN THE FREE EXERCISE AND
ENJOYMENT OF THE RIGHTS AND PRIVILEGES SECURED TO HIM AND PROTECTED BY
THE FOURTEENTH AMENDMENT  ...  "  THIS TIME ALL THE DEFENDANTS WERE
CONVICTED; BUT ON APPEAL THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
REVERSED.  IT HELD THAT IN THE CONSPIRACY PROVISION OF SEC. 19 "THE
CONGRESS HAD IN MIND THE FEDERAL RIGHTS AND PRIVILEGES WHICH APPERTAIN
TO CITIZENS AS SUCH AND NOT THE GENERAL RIGHTS EXTENDED TO ALL PERSONS
BY THE CLAUSE OF THE FOURTEENTH AMENDMENT."  179 F.2D 644, 648.  IN THE
ALTERNATIVE, THE COURT CONCLUDED THAT A BROADER CONSTRUCTION OF SEC. 19
WOULD RENDER IT VOID FOR INDEFINITENESS, AND THAT THERE WAS ERROR IN
THE JUDGE'S CHARGE AS WELL AS IN THE EXCLUSION OF EVIDENCE OF THE PRIOR
ACQUITTAL OF THREE OF THE DEFENDANTS.  TOGETHER WITH NOS. 134 AND 365
OF THIS TERM, THE OTHER TWO CASES GROWING OUT OF THE SAME AFFAIR, WE
BROUGHT THE CASE HERE BECAUSE IMPORTANT QUESTIONS IN THE ADMINISTRATION
OF CIVIL RIGHTS LEGISLATION ARE RAISED.  340 U.S. 849. 

THE ALTERNATIVE GROUNDS FOR THE DECISION OF THE COURT OF APPEALS NEED
NOT BE CONSIDERED, FOR WE AGREE THAT SEC. 241(TO USE THE CURRENT
DESIGNATION FOR WHAT WAS SEC. 19 OF THE CRIMINAL CODE) DOES NOT REACH
THE CONDUCT LAID AS AN OFFENSE IN THE PROSECUTION HERE.  THIS IS NOT
BECAUSE WE DENY THE POWER OF CONGRESS TO ENFORCE BY APPROPRIATE
CRIMINAL SANCTION EVERY RIGHT GUARANTEED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT; NOR IS IT BECAUSE WE FULLY ACCEPT THE COURSE
OF REASONING OF THE COURT BELOW.  WE BASE OUR DECISION ON THE HISTORY
OF SEC. 241, ITS TEXT AND CONTEXT, THE STATUTORY FRAMEWORK IN WHICH IT
STANDS, ITS PRACTICAL AND JUDICIAL APPLICATION - CONTROLLING ELEMENTS
IN CONSTRUING A FEDERAL CRIMINAL PROVISION THAT AFFECTS THE WISE
ADJUSTMENT BETWEEN STATE RESPONSIBILITY AND NATIONAL CONTROL OF
ESSENTIALLY LOCAL AFFAIRS.  THE ELEMENTS ALL CONVERGE IN ONE
DIRECTION.  THEY LEAD US TO HOLD THAT SEC. 241 ONLY COVERS CONDUCT
WHICH INTERFERES WITH RIGHTS ARISING FROM THE SUBSTANTIVE POWERS OF THE
FEDERAL GOVERNMENT. 

WHAT IS NOW KNOWN AS SEC. 241 ORIGINATED AS SEC. 6 OF THE ACT OF MAY
31, 1870, 16 STAT. 140.  THAT STATUTE WAS ENTITLED "AN ACT TO ENFORCE
THE RIGHT OF CITIZENS OF THE UNITED STATES TO VOTE IN THE SEVERAL
STATES OF THIS UNION, AND FOR OTHER PURPOSES."  IN FURTHERANCE OF ITS
CHIEF END OF ASSURING THE RIGHT OF NEGROES TO VOTE, IT PROVIDED IN
SECS. 2 AND 3 THAT IT SHOULD BE A MISDEMEANOR FOR ANY "PERSON OR
OFFICER" WRONGFULLY TO FAIL IN A DUTY IMPOSED ON HIM BY STATE LAW TO
PERFORM OR PERMIT PERFORMANCE OF ACTS NECESSARY TO REGISTERING OR
VOTING.  IN SEC. 4 INTERFERENCE WITH ELECTIONS BY PRIVATE PERSONS WAS
MADE A SIMILAR OFFENSE.  IN THE COURSE OF PASSAGE THROUGH CONGRESS
SEVERAL SECTIONS WERE ADDED WHICH HAD A LARGER PURPOSE.  ONE OF THEM,
SEC. 17, WAS DERIVED FROM THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27,
AND WAS DESIGNED TO "SECURE TO ALL PERSONS THE EQUAL PROTECTION OF THE
LAWS."  FN1  IT IMPOSED IMPRISONMENT UP TO ONE YEAR AND A FINE UP TO
ONE THOUSAND DOLLARS ON 

"ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, OR CUSTOM, SHALL SUBJECT, OR CAUSE TO BE SUBJECTED, ANY
INHABITANT OF ANY STATE OR TERRITORY TO THE DEPRIVATION OF ANY RIGHT
SECURED OR PROTECTED BY THE LAST PRECEDING SECTION OF THIS ACT, OR TO
DIFFERENT PUNISHMENT, PAINS, OR PENALTIES ON ACCOUNT OF SUCH PERSON
BEING AN ALIEN, OR BY REASON OF HIS COLOR OR RACE, THAN IS PRESCRIBED
FOR THE PUNISHMENT OF CITIZENS  ...  "  16 STAT. 140, 144.  THROUGH
SUCCESSIVE REVISIONS IT HAS BECOME SEC. 242, THE APPLICATION OF WHICH
TO THE FACTS BEFORE US IS CONSIDERED IN NO. 365, POST, P. 97. 

ANOTHER OF THE BROADER PROVISIONS IS THE SECTION WHICH IS OUR
IMMEDIATE CONCERN.  THIS WAS ITS ORIGINAL FORM: 

"SEC. 6.  AND BE IT FURTHER ENACTED, THAT IF TWO OR MORE PERSONS
SHALL BAND OR CONSPIRE TOGETHER, OR GO IN DISGUISE UPON THE PUBLIC
HIGHWAY, OR UPON THE PREMISES OF ANOTHER, WITH INTENT TO VIOLATE ANY
PROVISION OF THIS ACT, OR TO INJURE, OPPRESS, THREATEN, OR INTIMIDATE
ANY CITIZEN WITH INTENT TO PREVENT OR HINDER HIS FREE EXERCISE AND
ENJOYMENT OF ANY RIGHT OR PRIVILEGE GRANTED OR SECURED TO HIM BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES, OR BECAUSE OF HIS HAVING
EXERCISED THE SAME, SUCH PERSONS SHALL BE HELD GUILTY OF FELONY, AND,
ON CONVICTION THEREOF, SHALL BE FINED OR IMPRISONED, OR BOTH, AT THE
DISCRETION OF THE COURT, - THE FINE NOT TO EXCEED FIVE THOUSAND
DOLLARS, AND THE IMPRISONMENT NOT TO EXCEED TEN YEARS, - AND SHALL,
MOREOVER, BE THEREAFTER INELIGIBLE TO, AND DISABLED FROM HOLDING, ANY
OFFICE OR PLACE OF HONOR, PROFIT, OR TRUST CREATED BY THE CONSTITUTION
OR LAWS OF THE UNITED STATES."  16 STAT. 140, 141. 

THE DOMINANT CONDITIONS OF THE RECONSTRUCTION PERIOD WERE NOT
CONDUCIVE TO THE ENACTMENT OF CAREFULLY CONSIDERED AND COHERENT
LEGISLATION.  STRONG POST-WAR FEELING CAUSED INADEQUATE DELIBERATION
AND LED TO LOOSE AND CARELESS PHRASING OF LAWS RELATING TO THE NEW
POLITICAL ISSUES.  THE SECTIONS BEFORE US ARE NO EXCEPTION.  ALTHOUGH
ENACTED TOGETHER, THEY WERE PROPOSED BY DIFFERENT SPONSORS AND HASTILY
ADOPTED.  THEY RECEIVED LITTLE ATTENTION IN DEBATE.  WHILE THE
DISCUSSION OF THE BILL AS A WHOLE FILLS ABOUT 100 PAGES OF THE
CONGRESSIONAL GLOBE, ONLY TWO OR THREE RELATED TO SEC. 6, AND THESE ARE
IN GOOD PART A RECORD OF COMPLAINT THAT THE SECTION WAS INADEQUATELY
CONSIDERED OR UNDERSTOOD.  FN2 

NEVERTHELESS SOME CONCLUSIONS ARE WARRANTED.  THE FIRST IS THAT
INTERFERENCE WITH CIVIL RIGHTS BY STATE OFFICERS WAS DEALT WITH FULLY
BY SEC. 17 OF THE ACT.  THREE YEARS BEFORE ITS ENACTMENT CONGRESS HAD
PASSED THE FIRST GENERAL CONSPIRACY STATUTE.  ACT OF MARCH 2, 1867,
SEC. 30, 14 STAT. 484; R.S. SEC. 5440; NOW 18 U.S.C. SEC. 371.  THIS
PROVISION, IN CONJUNCTION WITH SEC. 17, REACHED CONSPIRACIES UNDER
COLOR OF STATE LAW TO DEPRIVE PERSONS OF RIGHTS GUARANTEED BY THE
FOURTEENTH AMENDMENT.  NO OTHER PROVISION OF THE ACT OF 1870 WAS
NECESSARY FOR THAT PURPOSE. 

THE SECOND CONCLUSION IS THAT IF LANGUAGE IS TO CARRY ANY MEANING AT
ALL IT MUST BE CLEAR THAT THE PRINCIPAL PURPOSE OF SEC. 6, UNLIKE SEC.
17, WAS TO REACH PRIVATE ACTION RATHER THAN OFFICERS OF A STATE ACTING
UNDER ITS AUTHORITY.  MEN WHO "GO IN DISGUISE UPON THE PUBLIC HIGHWAY,
OR UPON THE PREMISES OF ANOTHER" ARE NOT LIKELY TO BE ACTING IN
OFFICIAL CAPACITIES.  THE HISTORY OF THE TIMES - THE LAWLESS ACTIVITIES
OF PRIVATE BANDS, OF WHICH THE KLAN WAS THE MOST CONSPICUOUS - EXPLAINS
WHY CONGRESS DEALT WITH BOTH STATE DISREGARD OF THE NEW CONSTITUTIONAL
PROHIBITIONS AND PRIVATE LAWLESSNESS.  FN3  THE SPONSOR OF SEC. 6 IN
THE SENATE MADE EXPLICIT THAT THE PURPOSE OF HIS AMENDMENT WAS TO
CONTROL PRIVATE CONDUCT.  FN4 

THESE TWO CONCLUSIONS STRONGLY SUGGEST A THIRD:  THAT THE RIGHTS
WHICH SEC. 6 PROTECTS ARE THOSE WHICH CONGRESS CAN BEYOND DOUBT
CONSTITUTIONALLY SECURE AGAINST INTERFERENCE BY PRIVATE INDIVIDUALS. 
DECISIONS OF THIS COURT HAVE ESTABLISHED THAT THIS CATEGORY INCLUDES
RIGHTS WHICH ARISE FROM THE RELATIONSHIP OF THE INDIVIDUAL AND THE
FEDERAL GOVERNMENT.  THE RIGHT OF CITIZENS TO VOTE IN CONGRESSIONAL
ELECTIONS, FOR INSTANCE, MAY OBVIOUSLY BE PROTECTED BY CONGRESS FROM
INDIVIDUAL AS WELL AS FROM STATE INTERFERENCE.  EX PARTE YARBROUGH, 110
U.S. 651.  ON THE OTHER HAND, WE HAVE CONSISTENTLY HELD THAT THE
CATEGORY OF RIGHTS WHICH CONGRESS MAY CONSTITUTIONALLY PROTECT FROM
INTERFERENCE BY PRIVATE PERSONS EXCLUDES THOSE RIGHTS WHICH THE
CONSTITUTION MERELY GUARANTEES FROM INTERFERENCE BY A STATE.  THUS WE
HELD THAT AN INDIVIDUAL'S INTEREST IN RECEIVING A FAIR TRIAL IN STATE
COURTS CANNOT BE CONSTITUTIONALLY VINDICATED BY FEDERAL PROSECUTION OF
PRIVATE PERSONS.  UNITED STATES V. POWELL, 212 U.S. 564; ACCORD, HODGES
V. UNITED STATES, 203 U.S. 1; UNITED STATES V. WHEELER, 254 U.S. 281. 
THE DISTINCTION WHICH THESE DECISIONS DRAW BETWEEN RIGHTS THAT FLOW
FROM THE SUBSTANTIVE POWERS OF THE FEDERAL GOVERNMENT AND MAY CLEARLY
BE PROTECTED FROM PRIVATE INTERFERENCE, AND INTERESTS WHICH THE
CONSTITUTION ONLY GUARANTEES FROM INTERFERENCE BY STATES, IS A FAMILIAR
ONE IN AMERICAN LAW.  SEE, E.G., STRAUDER V. WEST VIRGINIA, 100 U.S.
303, 310. 

TO CONSTRUE SEC. 6 SO AS TO PROTECT INTERESTS NOT ARISING FROM THE
RELATIONSHIP OF THE INDIVIDUAL WITH THE FEDERAL GOVERNMENT, BUT ONLY
GUARANTEED BY THE CONSTITUTION FROM INTERFERENCE BY THE STATES, WOULD
MAKE ITS SCOPE DUPLICATE THE COVERAGE OF SEC. 17 AND THE GENERAL
CONSPIRACY CLAUSE.  THAT THIS IS NOT IN FACT WHAT CONGRESS DESIRED IS
CONFIRMED BY FURTHER EXAMINATION OF THE TEXT OF THE STATUTE.  FULL
ALLOWANCE FOR HASTY DRAFTSMANSHIP CANNOT OBSCURE CLEAR INDICATIONS FROM
THE TEXT THAT THE CATEGORY OF INTERESTS PROTECTED BY SEC. 6 DOES NOT
INCLUDE THE RIGHTS AGAINST STATE ACTION SECURED BY SEC. 17. 

THUS, WHEN CONGRESS WISHED TO PROTECT FROM STATE ACTION INTERESTS
GUARANTEED BY THE FOURTEENTH AMENDMENT, IT DESCRIBED THEM IN SEC. 17 AS
RIGHTS "SECURED OR PROTECTED" BY THE CONSTITUTION.  BUT IN SEC. 6 THE
NARROWER PHRASE "GRANTED OR SECURED" IS USED TO DEFINE THE INTERESTS
PROTECTED FROM INTERFERENCE BY INDIVIDUALS.  WHEN CONGRESS WANTED TO
REACH ACTION BY STATE OFFICERS, THE EXPLICIT REFERENCE IN SEC. 17 TO
"COLOR" OF STATE LAW DEMONSTRATES THAT CONGRESS KNEW HOW TO MAKE THIS
PURPOSE KNOWN.  SIMILARLY, REFERENCE IN SECS. 2 AND 3 TO "PERSONS OR
OFFICERS" INDICATES THAT CONGRESS WAS ABLE EXPLICITLY TO DRAFT A
ALIKE.  IN CONTRAST, SEC. 6 WAS MADE APPLICABLE SIMPLY TO "PERSONS." 
NOTHING IN ITS TERMS INDICATES THAT COLOR OF STATE LAW WAS TO BE
RELEVANT TO PROSECUTION UNDER IT.  FN5 

TO FIND THIS SIGNIFICANCE IN THE TEXT OF THE ACT OF 1870 IS NOT TO
GIVE UNDUE WEIGHT TO DIFFERENCES IN PHRASEOLOGY APPEARING IN THE
STATUTE.  FOR THE TEXT OF THESE SECTIONS HAS BEEN CONSIDERED BY
CONGRESS NOT ONCE BUT FIVE TIMES.  SOME MINOR CHANGES OF PHRASEOLOGY
WERE MADE IN THE COURSE OF THE SUCCESSIVE REVISIONS.  BUT NEITHER THE
REVISED STATUTES OF 1874-1878, NOR THE CRIMINAL CODE OF 1909, NOR THE
1926 CODIFICATION IN THE U.S.C.  NOR THE 1948 REVISION OF THE CRIMINAL
CODE, INDICATES EITHER IN TEXT OR REVISER'S COMMENTARY ANY CHANGE IN
SUBSTANCE.  THE CONTINUITY OF MEANING IS INDICATED IN THE APPENDIX TO
THIS OPINION, POST, P. 83. 

IN THREE OF THE REVISIONS, FURTHERMORE, CONGRESS HAD BEFORE IT A
CONSISTENT COURSE OF DECISIONS OF THIS COURT INDICATING THAT SEC. 6 -
NOW SEC. 241 - WAS IN PRACTICE INTERPRETED ONLY TO PROTECT RIGHTS
ARISING FROM THE EXISTENCE AND POWERS OF THE FEDERAL GOVERNMENT.  THE
PATTERN WAS ESTABLISHED BY UNITED STATES V. CRUIKSHANK, 92 U.S. 542. 
THE DEFENDANTS WERE INDICTED FOR CONSPIRING TO DEPRIVE SOME NEGRO
CITIZENS OF RIGHTS SECURED BY THE CONSTITUTION.  THIS COURT AFFIRMED
THE DECISION OF THE CIRCUIT COURT ARRESTING JUDGMENT ENTERED ON A
VERDICT OF GUILTY.  IT FOUND THAT COUNTS ALLEGING INTERFERENCE WITH
RIGHTS SECURED BY THE FIRST, SECOND, FOURTEENTH AND FIFTEENTH
AMENDMENTS WERE OB-ECTIONABLE BECAUSE THE RIGHTS ASSERTED WERE NOT
"GRANTED OR SECURED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES"
WITHIN THE MEANING OF THE STATUTE.  92 U.S. AT 551.  THE PATTERN SET BY
THIS CASE HAS NEVER BEEN DEPARTED FROM.    EX PARTE YARBROUGH, 110 U.S.
651, WAS THE FIRST OF SEVEN DECISIONS IN WHICH THE COURT HELD OR
ASSUMED THAT THE RIGHT TO VOTE IN FEDERAL ELECTIONS WAS PROTECTED BY
THIS LEGISLATION BECAUSE IT WAS A RIGHT "GRANTED OR SECURED" BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES.  GUINN V. UNITED STATES, 238
U.S. 347; UNITED STATES V. MOSLEY, 238 U.S. 383; AND UNITED STATES V.
SAYLOR, 322 U.S. 385, HELD THAT INTERFERENCE BY PRIVATE PERSONS WITH
THE RIGHT TO VOTE IN GENERAL ELECTIONS FOR MEMBERS OF CONGRESS IS AN
OFFENSE UNDER SEC. 241; IN UNITED STATES V. CLASSIC, 313 U.S. 299, THE
STATUTE WAS FOUND APPLICABLE TO THE LOUISIANA SYSTEM OF PRIMARY
ELECTIONS FOR CONGRESS.  FN6 

IN UNITED STATES V. WADDELL, 112 U.S. 76, INTERFERENCE WITH THE RIGHT
TO ESTABLISH A CLAIM UNDER THE HOMESTEAD ACTS BROUGHT THE OFFENDER
WITHIN SEC. 241.  THE RIGHT DID NOT PERTAIN TO UNITED STATES
CITIZENSHIP; BUT SINCE IT WAS "WHOLLY DEPENDENT UPON THE ACT OF
CONGRESS," OBSTRUCTING ITS EXERCISE CAME "WITHIN THE PURVIEW OF THE
STATUTE AND OF THE CONSTITUTIONAL POWER OF CONGRESS TO MAKE SUCH
STATUTE."  112 U.S. AT 79, 80.  SIMILARLY, THE COURT HAS HELD THAT
ASSAULT UPON A CITIZEN IN THE CUSTODY OF A UNITED STATES MARSHAL IS A
VIOLATION OF THE STATUTE, LOGAN V. UNITED STATES, 144 U.S. 263.  AND
SO, A CITIZEN MAY NOT BE DENIED THE RIGHT TO INFORM ON VIOLATION OF
FEDERAL LAWS.  IN RE QUARLES, 158 U.S. 532; MOTES V. UNITED STATES, 178
U.S. 458. 

CONTRARIWISE, WE HAVE HELD THAT CONSPIRACIES TO FORCE CITIZENS TO
GIVE UP THEIR JOBS OR COMPEL THEM TO MOVE OUT OF A STATE ARE NOT WITHIN
THE TERMS OF THE STATUTE.  HODGES V. UNITED STATES, 203 U.S. 1; UNITED
STATES V. WHEELER, 254 U.S. 281.  AND IN UNITED STATES V. POWELL, 212
U.S. 564, WE HELD THAT PARTICIPANTS IN A MOB WHICH SEIZED A NEGRO FROM
THE CUSTODY OF THE LOCAL SHERIFF AND LYNCHED HIM WERE NOT INDICTABLE
UNDER SEC. 241.  FN7 

IN NONE OF THESE DECISIONS WAS THE PRECISE ISSUE BEFORE US DECIDED,
FOR IN NONE WAS IT ALLEGED THAT THE DEFENDANTS ACTED UNDER COLOR OF
STATE LAW.  BUT THE VALIDITY OF A CONVICTION UNDER SEC. 241 DEPENDS ON
THE SCOPE OF THAT SECTION, WHICH CANNOT BE EXPANDED BY THE DRAFTSMAN OF
AN INDICTMENT.  THE USES TO WHICH A STATUTE HAS BEEN PUT ARE STRONG
EVIDENCE OF THE ENDS IT WAS INTENDED TO SERVE.  IN THIS INSTANCE THE
DECISIONS BUTTRESS WHAT COMMON SENSE AND A SPONTANEOUS READING OF THE
STATUTE INDEPENDENTLY MAKE CLEAR, AND GIVE ADDED SIGNIFICANCE TO
REPEATED REENACTMENT WITHOUT SUBSTANTIAL CHANGE.  FN8  ALL THE EVIDENCE
POINTS TO THE SAME CONCLUSION: THAT SEC. 241 APPLIES ONLY TO
INTERFERENCE WITH RIGHTS WHICH ARISE FROM THE RELATION OF THE VICTIM
AND THE FEDERAL GOVERNMENT, AND NOT TO INTERFERENCE BY STATE OFFICERS
WITH RIGHTS WHICH THE FEDERAL GOVERNMENT MERELY GUARANTEES FROM
ABRIDGMENT BY THE STATES. 

TO REJECT THIS EVIDENCE AND HOLD THE INDICTMENT VALID UNDER SEC. 241
NOT ONLY INVOLVES A NEW, DISTORTING CONSTRUCTION OF AN OLD STATUTE.  IT
ALSO MAKES FOR REDUNDANCY AND CONFUSION AND RAISES SOME NEEDLESS
CONSTITUTIONAL PROBLEMS.  FOR IF WE ASSUME THAT A CONSPIRACY SUCH AS
THAT DESCRIBED HERE IS UNDER COLOR OF STATE LAW, IT CAN BE REACHED
UNDER SEC. 242 AND THE GENERAL CONSPIRACY STATUTE.  INDEED, THE
DEFENDANTS BEFORE US WERE INDICTED AND TRIED FOR VIOLATION OF SEC. 242;
THE CONVICTION OF ONE OF THEM UNDER THAT SECTION IS BEFORE US IN NO.
365, POST, P. 97.  UNLIKE SEC. 242, THE SECTION NOW BEFORE US IS NOT
QUALIFIED BY THE REQUIREMENT THAT THE DEFENDANTS HAVE ACTED
"WILLFULLY," AND THE VERY SPECIALIZED CONTENT ATTRIBUTED TO THAT WORD
WAS FOUND ESSENTIAL TO SUSTAINING SEC. 242 IN SCREWS V. UNITED STATES,
325 U.S. 91.  NOR DOES THE DEFINED CRIME HAVE AS AN INGREDIENT THAT THE
CONSPIRACY BE UNDER COLOR OF STATE LAW.  CRIMINAL STATUTES SHOULD BE
GIVEN THE MEANING THEIR LANGUAGE MOST OBVIOUSLY INVITES.  THEIR SCOPE
SHOULD NOT BE EXTENDED TO CONDUCT NOT CLEARLY WITHIN THEIR TERMS. 

WE THEREFORE HOLD THAT INCLUDING AN ALLEGATION THAT THE DEFENDANTS
ACTED UNDER COLOR OF STATE LAW IN AN INDICTMENT UNDER SEC. 241 DOES NOT
EXTEND THE PROTECTION OF THE SECTION TO RIGHTS WHICH THE FEDERAL
CONSTITUTION MERELY GUARANTEES AGAINST ABRIDGMENT BY THE STATES.  SINCE
UNDER THIS INTERPRETATION OF THE STATUTE THE INDICTMENT MUST FALL, THE
JUDGMENT OF THE COURT BELOW IS AFFIRMED. 

FN1  SEE THE REMARKS OF SENATOR STEWART AT THE TIME HE PROPOSED THE
AMENDMENT, CONG. GLOBE, 41ST CONG., 2D SESS. 3480(1870). 

FN2  SECTIONS 2, 3, AND 4 APPEARED IN THE BILL AS IT WAS FIRST
INTRODUCED INTO THE SENATE.  CONG. GLOBE, 41ST CONG., 2D SESS.
3480(1870).  SECTION 17 WAS PROPOSED BY SENATOR STEWART AT THE OUTSET
OF THE DEBATE.  IBID.  SECTION 6 WAS SUBSEQUENTLY PROPOSED BY SENATOR
POOL.  ID., 3612. 

THE DEBATE OF THE SENATE, WHICH CONSIDERED THE ACT AS IN COMMITTEE OF
THE WHOLE, IS FOUND BETWEEN PP. 3479 AND 3808 OF THE CONGRESSIONAL
GLOBE.  ILLUSTRATIVE OF THE DISCUSSION OF THE CONSIDERATION GIVEN THE
ACT ARE THESE REMARKS OF SENATOR CASSERLY: 

"ONE OF THE WORST PROVISIONS OF THE BILL AS IT PASSED THIS BODY AND
AS IT WENT TO THE COMMITTEE OF CONFERENCE, WAS A PROVISION WHICH
ESCAPED THE NOTICE OF NEARLY EVERY ONE OF THE MINORITY OF THIS BODY,
AND I VERILY BELIEVE OF A VERY CONSIDERABLE PORTION OF THE MAJORITY OF
THE SENATORS IN THIS BODY.  I REFER TO THOSE PROVISIONS WHICH WERE
TAKEN OUT OF A BILL FOR THE ENFORCEMENT OF THE FOURTEENTH AMENDMANT. 

"NOW, IS IT A FIT THING THAT LEGISLATION OF THAT IMPORTANCE SHOULD GO
THROUGH THE AMERICAN CONGRESS UNKNOWN TO THOSE MEMBERS WHO HAD TAKEN
THE GREATEST INTEREST IN INFORMING THEMSELVES, AS WELL AS TO THAT LARGE
BODY OF OTHER MEMBERS WHOSE RIGHT IT WAS TO KNOW UPON WHAT THEY WERE
VOTING?  ...  I SHALL NOT UNDERTAKE TO SHOW HOW FAR THE COURSE OF THE
MAJORITY, IN FORCING THE SENATE BILL THROUGH TO A FINAL VOTE AT A
MIDNIGHT SESSION OF UNUSUAL DURATION, WITHOUT THE LEAST PUBLIC DEMAND
OR EXIGENCY FOR SUCH A PROCEEDING, CONTRIBUTED TO SUCH A RESULT; HOW
FAR IT CONTRIBUTED TO THE MAKING, TO THE ENACTING INTO A LAW OF
PROVISIONS WHICH WERE NOT SUPPOSED OR UNDERSTOOD BY A CONSIDERABLE
PORTION OF THE BODY TO BE IN THE BILL THAT WAS BEFORE IT."  ID., 3759. 
SEE ALSO THE REMARKS OF SENATORS THURMAN AND STEWART, ID., 3672, 3808. 
THE HOUSE DEVOTED VERY LITTLE ATTENTION TO THE ACT.  SEE ID., 1812,
3503, 3853, 3871. 

FN3  THE DEPTH OF FEELING WHICH THE LAWLESSNESS OF THE PERIOD EVOKED
IS REFLECTED IN THE LETTER OF CHIEF JUSTICE THOMAS RUFFIN TO HIS SON,
JULY 8, 1869.  SEE 4 HAMILTON, THE PAPERS OF THOMAS RUFFIN, 225. 

FN4  IN INTRODUCING THE PROVISIONS SENATOR POOL SAID, 

"THERE ARE, MR. PRESIDENT, VARIOUS WAYS IN WHICH THE RIGHT SECURED BY
THE FIFTEENTH AMENDMENT MAY BE ABRIDGED BY CITIZENS IN A STATE.  IF A
STATE SHOULD UNDERTAKE BY POSITIVE ENACTMENT, AS I HAVE SAID, TO
ABRIDGE THE RIGHT OF SUFFRAGE, THE COURTS OF THE COUNTRY WOULD PREVENT
IT; AND I FIND THAT IN SECTION TWO OF THE BILL WHICH HAS BEEN PROPOSED
AS A SUBSTITUTE BY THE JUDICIARY COMMITTEE OF THE SENATE PROVISION IS
MADE FOR CASES WHERE OFFICERS CHARGED WITH REGISTRATION OR OFFICERS
CHARGED WITH THE ASSESSMENT OF TAXES AND WITH MAKING THE PROPER ENTRIES
IN CONNECTION THEREWITH, SHALL REFUSE THE RIGHT TO REGISTER OR TO PAY
TAXES TO A CITIZEN.  ...  BUT, SIR, INDIVIDUALS MAY PREVENT THE
EXERCISE OF THE RIGHT OF SUFFRAGE; INDIVIDUALS MAY PREVENT THE
ENJOYMENT OF OTHER RIGHTS WHICH ARE CONFERRED UPON THE CITIZEN BY THE
FOURTEENTH AMENDMENT, AS WELL AS TRESPASS UPON THE RIGHT CONFERRED BY
THE FIFTEENTH.  NOT ONLY CITIZENS, BUT ORGANIZATIONS OF CITIZENS,
CONSPIRACIES, MAY BE AND ARE, AS WE ARE TOLD, IN SOME OF THE STATES
FORMED FOR THAT PURPOSE."  ID., 3611. 

THE ONLY OTHER PERTINENT REMARKS OF THE SENATOR ARE THESE: 

"I BELIEVE THAT THE UNITED STATES HAS THE RIGHT, AND THAT IT IS AN
INCUMBENT DUTY UPON IT, TO GO INTO THE STATES TO ENFORCE THE RIGHTS OF
THE CITIZENS AGAINST ALL WHO ATTEMPT TO INFRINGE UPON THOSE RIGHTS WHEN
THEY ARE RECOGNIZED AND SECURED BY THE CONSTITUTION OF THE COUNTRY. 
... 

"MR. PRESIDENT, THE LIBERTY OF A CITIZEN OF THE UNITED STATES, THE
PREROGATIVES, THE RIGHTS, AND THE IMMUNITIES OF AMERICAN CITIZENSHIP,
SHOULD NOT BE AND CANNOT BE SAFELY LEFT TO THE MERE CAPRICE OF STATES
EITHER IN THE PASSAGE OF LAWS OR IN THE WITHHOLDING OF THAT PROTECTION
WHICH ANY EMERGENCY MAY REQUIRE.  IF A STATE BY OMISSION NEGLECTS TO
GIVE TO EVERY CITIZEN WITHIN ITS BORDERS A FREE, FAIR, AND FULL
EXERCISE AND ENJOYMENT OF HIS RIGHTS IT IS THE DUTY OF THE UNITED
STATES GOVERNMENT TO GO INTO THE STATE, AND BY ITS STRONG ARM TO SEE
THAT HE DOES HAVE THE FULL AND FREE ENJOYMENT OF THOSE RIGHTS."  ID.,
3613. 

IN BOTH THESE PASSAGES THE SENATOR STATES CLEARLY THAT HIS PROPOSALS
ARE INTENDED TO BE APPLICABLE TO PRIVATE PERSONS.  IN NEITHER DOES HE
INDICATE DISTINCTLY THE NATURE OF THE RIGHTS WHICH SEC. 6 IS TO
PROTECT.  THE PHRASE "RIGHTS WHICH ARE CONFERRED UPON THE CITIZEN BY
THE FOURTEENTH AMENDMENT" DOES NOT NECESSARILY REFER TO INTERESTS
GUARANTEED BY THE AMENDMENT AGAINST STATE ACTION.  IT MAY BE RELEVANT
ONLY TO THE NEW FEDERAL RIGHTS CREATED BY THE AMENDMENT THROUGH
CONFERRING CITIZENSHIP ON PERSONS NOT PREVIOUSLY ENTITLED TO IT. 

FN5  THE POSITION OF SEC. 6 IN THE STATUTE AS WELL AS ITS PHRASEOLOGY
INDICATES THAT IT WAS NOT INTENDED TO BE A COMPANION TO SEC. 17, AND TO
PUNISH CONSPIRACIES WHEREVER THAT SECTION PROHIBITED THE SUBSTANTIVE
OFFENSE.  IT IS LIKEWISE CLEAR THAT SEC. 6 WAS NOT INTENDED TO APPLY
THE PROVISIONS OF SEC. 17 TO PRIVATE PERSONS IN THE SENSE THAT SEC. 4
SUPPLEMENTS SECS. 2 AND 3.  THE LOCATION OF SEC. 6 IN THE STATUTE TO
THE CONTRARY CONFIRMS THAT ITS PURPOSE AND COVERAGE ARE DISTINCT FROM
THE OTHER PROVISIONS OF THE LAW. 

FN6  THE TWO OTHER DECISIONS INVOLVING ELECTIONS FOUND THE
INDICTMENTS WANTING BECAUSE WHAT WAS CHARGED WAS NOT DEEMED TO
CONSTITUTE AN EFFECTIVE INTERFERENCE WITH THE EXERCISE OF A VOTER'S
FEDERAL FRANCHISE.  UNITED STATES V. GRADWELL, 243 U.S. 476; UNITED
STATES V. BATHGATE, 246 U.S. 220. 

FN7  BALDWIN V. FRANKS, 120 U.S. 678, HELD THAT A CONSPIRACY TO DRIVE
ALIENS FROM THEIR HOMES IS NOT AN OFFENSE UNDER THE STATUTE, SINCE IT
IS EXPRESSLY LIMITED TO INTERFERENCE WITH CITIZENS.  IN THREE OTHER
DECISIONS OF THIS COURT THE SECTION WAS INVOLVED, BUT NO QUESTION
PERTINENT TO THE ISSUES NOW BEFORE US WAS DECIDED.  UNITED STATES V.
MASON, 213 U.S. 115; O'SULLIVAN V. FELIX, 233 U.S. 318; PENNSYLVANIA
SYSTEM FEDERATION V. PENNSYLVANIA R. CO., 267 U.S. 203. 

FN8  IT IS WORTH NOTING THAT COUNT 1 OF THE INDICTMENT IN SCREWS V.
UNITED STATES, 325 U.S. 91, LAID A CHARGE UNDER SEC. 51(NOW SEC. 241)
SIMILAR TO THE INDICTMENT NOW HERE FOR REVIEW.  THERE WAS A DEMURRER TO
THAT INDICTMENT ON THE GROUND THAT SEC. 51 DID NOT AFFORD A LEGAL BASIS
FOR SUCH A CHARGE.  THE ARGUMENT ADVANCED BY THE GOVERNMENT TO SUPPORT
COUNT 1 WAS SUBSTANTIALLY THE ARGUMENT THE GOVERNMENT NOW MAKES IN THIS
CASE.  THE DEMURRER WAS SUSTAINED AND THE GOVERNMENT DID NOT CHALLENGE
THE DISTRICT COURT'S INTERPRETATION OF SEC. 51, ALTHOUGH THE CRIMINAL
APPEALS ACT OF 1907, 34 STAT. 1246, 18 U.S.C. (1946 ED.)  SEC.  682,
NOW 18 U.S.C. SEC. 3731, ENABLED THE GOVERNMENT TO SECURE REVIEW OF
THAT CONSTRUCTION HERE. 

IN A FEW EARLY CASES THIS SECTION WAS APPLIED IN LOWER COURTS TO
RIGHTS NOT ARISING FROM THE RELATION OF THE VICTIM TO THE FEDERAL
GOVERNMENT.  SEE UNITED STATES V. HALL, 26 FED. CAS. 79; UNITED STATES
V. MALL, 26 FED. CAS. 1147; EX PARTE RIGGINS, 134 F. 404.  SINCE IN
NONE OF THESE DECISIONS WAS IT ALLEGED THAT THE DEFENDANTS ACTED UNDER
COLOR OF STATE LAW, EACH IS PLAINLY INCONSISTENT WITH SUBSEQUENT
DECISIONS OF THIS COURT.  THEY ALSO RUN COUNTER EVEN TO THE ARGUMENTS
ADDUCED IN SUPPORT OF THE CONVICTION HERE. 

(APPENDIX TO OPINION OF FRANKFURTER OMITTED) 

(FOR OPINION OF MR. JUSTICE BLACK, CONCURRING IN THE RESULT, SEE
POST, P. 85.) 

(FOR DISSENTING OPINION OF MR. JUSTICE DOUGLAS, JOINED BY MR. JUSTICE
REED, MR. JUSTICE BURTON AND MR. JUSTICE CLARK, SEE POST, P. 87.) 

MR. JUSTICE BLACK, CONCURRING IN THE RESULT. 

THIS IS ONE OF THREE PROSECUTIONS OF RESPONDENTS WILLIAMS, FORD,
BOMBACI AND PERRY ARISING OUT OF THEIR ALLEGED CONDUCT IN BRUTALLY
COERCING CONFESSIONS FROM CERTAIN PERSONS SUSPECTED OF THEFT.  THE
FIRST PROSECUTION WAS UNDER AN INDICTMENT CHARGING RESPONDENTS AND TWO
OTHER DEFENDANTS NOT NOW BEFORE US WITH VIOLATION OF THE SUBSTANTIVE
OFFENSE AND CONSPIRACY SECTIONS OF THE CIVIL RIGHTS ACT.  18 U.S.C.
(1946 ED.)  SECS.  51, 52, NOW 18 U.S.C. SECS. 241, 242.  THAT TRIAL
RESULTED IN CONVICTION OF RESPONDENT WILLIAMS AND ACQUITTAL OF THE
OTHER FIVE ON THE SUBSTANTIVE COUNTS; A MISTRIAL WAS DECLARED AS TO ALL
DEFENDANTS ON THE CONSPIRACY COUNTS.  FN1 SHORTLY THEREAFTER TWO NEW
INDICTMENTS WERE RETURNED:  ONE AGAIN CHARGED THE SIX DEFENDANTS WITH
THE SAME CONSPIRACY; THE OTHER CHARGED FOUR OF THEM WITH HAVING
COMMITTED PERJURY DURING THEIR FIRST TRIAL.  FN2  ON THE SECOND TRIAL
FOR CONSPIRACY ALL WERE CONVICTED AND IT IS THESE CONVICTIONS OF
RESPONDENTS THAT WE REVIEW IN THE PRESENT CASE. 

I AM CONVINCED FROM THE RECORDS BEFORE US THAT THE PRINCIPLE OF RES
JUDICATA SHOULD HAVE BARRED THE GOVERNMENT FROM TRYING RESPONDENTS ON
THIS SECOND INDICTMENT FOR CONSPIRACY.  IN THE FIRST TRIAL THE JUDGE
INSTRUCTED THE JURY TO CONVICT ON THE SUBSTANTIVE COUNTS ALL DEFENDANTS
WHO EITHER COMMITTED THAT CRIME OR AIDED, ABETTED, ASSISTED, COUNSELED,
ENCOURAGED, COMMANDED, INDUCED, PROCURED OR INCITED ANY OTHER PERSON TO
DO SO.  ACQUITTAL OF THE FIVE DEFENDANTS WAS, THEREFORE, A FINAL
DETERMINATION THAT THEY HAD DONE NONE OF THESE THINGS, OR, IN EFFECT,
THAT THEY HAD NOTHING TO DO WITH THE COMMISSION OF THE SUBSTANTIVE
OFFENSE ITSELF.  THE PRINCIPLE OF RES JUDICATA OF COURSE PRECLUDES A
RELITIGATION OF THE SAME FACTUAL ISSUES IN ANY SUBSEQUENT TRIAL. 
SEALFON V. UNITED STATES, 332 U.S. 575.  THIS BEING TRUE, THE BROAD
SCOPE OF THE FACTS FOUND ADVERSELY TO THE GOVERNMENT IN THE FIRST TRIAL
BARRED A CONVICTION OF THE FIVE DEFENDANTS UPON THE SECOND TRIAL
BECAUSE THERE IS NO EVIDENCE THAT THEY CONSPIRED EXCEPT INSOFAR AS THE
UNLAWFUL AGREEMENT CAN BE INFERRED FROM THEIR HAVING PARTICIPATED IN
SOME WAY IN THE SUBSTANTIVE CRIME.  CONSEQUENTLY, THE CONSPIRACY
CONVICTIONS CANNOT STAND AS TO RESPONDENTS FORD, BOMBACI AND PERRY,
THESE THREE BEING AMONG THOSE PREVIOUSLY FOUND NOT GUILTY OF THE
SUBSTANTIVE CHARGE.    NOR SHOULD THE CONSPIRACY CONVICTION OF
RESPONDENT WILLIAMS STAND UNDER THESE CIRCUMSTANCES.  THE INDICTMENT
DID NOT ALLEGE AND THERE WAS NO EVIDENCE TO SUGGEST THAT HE CONSPIRED
WITH ANYONE OTHER THAN THE FIVE NAMED DEFENDANTS.  AS A RESULT, WHEN
THE GOVERNMENT WAS PRECLUDED BY RES JUDICATA FROM PROVING THE GUILT OF
ANY OF WILLIAMS' ALLEGED CO-CONSPIRATORS, THE BASIS OF THE CONSPIRACY
CHARGE AS TO WILLIAMS WAS NECESSARILY REMOVED SINCE ONE PERSON
OBVIOUSLY CANNOT CONSPIRE WITH HIMSELF.  CF. MORRISON V. CALIFORNIA,
291 U.S. 82, 93; FEDER V. UNITED STATES, 257 F. 694; SEE ALSO THE CASES
COLLECTED IN 72 A.L.R. 1180, 1186-1187; 97 A.L.R. 1312, 1313, 1316
1317. 

BECAUSE, FOR THE FOREGOING REASONS, I BELIEVE THE CONSPIRACY
CONVICTIONS OF RESPONDENTS MUST FAIL, I FIND IT UNNECESSARY TO
DETERMINE WHETHER 18 U.S.C. (1946 ED.)  SEC.  51, NOW 18 U.S.C. (1946
ED., SUPP. III) SEC. 241, AS APPLIED, IS TOO VAGUE AND UNCERTAIN IN
SCOPE TO BE CONSISTENT WITH THE FIFTH AMENDMENT. 

FN1  WILLIAMS' CONVICTION ON THE SUBSTANTIVE COUNTS IS REVIEWED IN
WILLIAMS V. UNITED STATES, 341 U.S. 97, DECIDED TODAY. 

FN2  THE INDICTMENT CHARGING RESPONDENTS WILLIAMS, FORD AND BOMBACI
(AND ONE DEFENDANT NOT BEFORE US IN THE PRESENT CASE) WITH PERJURY IS
REVIEWED TODAY IN UNITED STATES V. WILLIAMS, 341 U.S. 58.  RESPONDENTS
HAVE CLAIMED THAT BECAUSE OF THE PENDING PERJURY CHARGES THE DEFENDANTS
REFRAINED FROM TESTIFYING IN THE PRESENT TRIAL FOR CONSPIRACY. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED, MR. JUSTICE BURTON,
AND MR. JUSTICE CLARK CONCUR, DISSENTING. 

242, ARE COMPANION SECTIONS DESIGNED FOR THE PROTECTION OF GREAT RIGHTS
WON AFTER THE NATION'S MOST CRITICAL INTERNAL CONFLICT.  SECTION 19
COVERS CONSPIRACIES; SEC. 20, SUBSTANTIVE OFFENSES.  SECTION 19
PROTECTS THE "CITIZEN"; SEC. 20 THE "INHABITANT."  THE SANCTION OF SEC.
19 EXTENDS TO "ANY RIGHT OR PRIVILEGE SECURED" TO THE CITIZEN "BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES"; THE SANCTION OF SEC. 20 TO
"ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES."  FN1 

MR. JUSTICE RUTLEDGE IN SCREWS V. UNITED STATES, 325 U.S. 91, 119,
WROTE THAT IN SPITE OF THE DIFFERENCE IN WORDING OF SECS. 19 AND 20
THERE ARE "NO DIFFERENCES IN THE BASIC RIGHTS GUARDED.  EACH PROTECTS
IN A DIFFERENT WAY THE RIGHTS AND PRIVILEGES SECURED TO INDIVIDUALS BY
THE CONSTITUTION."  ONE WOULD INDEED HAVE TO STRAIN HARD AT WORDS TO
FIND ANY DIFFERENCE OF SUBSTANCE BETWEEN "ANY RIGHT OR PRIVILEGE
SECURED" BY THE CONSTITUTION OR LAWS OF THE UNITED STATES (SEC. 19) AND
"ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES" (SEC. 20).  IF SEC. 20
EMBRACES A BROADER RANGE OF RIGHTS THAN SEC. 19, IT MUST BE BECAUSE IT
INCLUDES "IMMUNITIES" AS WELL AS "RIGHTS" AND "PRIVILEGES" AND
"PROTECTS" THEM AS WELL AS "SECURES" THEM.  WHEN NO MAJOR DIFFERENCE
BETWEEN SECS. 19 AND 20 IS APPARENT FROM THE WORDS THEMSELVES, IT IS
STRANGE TO HEAR IT SAID THAT THOUGH SEC. 20 EXTENDS TO RIGHTS
GUARANTEED AGAINST STATE ACTION BY THE FOURTEENTH AMENDMENT, SEC. 19 IS
LIMITED TO RIGHTS WHICH THE FEDERAL GOVERNMENT CAN SECURE AGAINST
INVASION BY PRIVATE PERSONS.  THE DIVISION OF POWERS BETWEEN STATE AND
NATION IS SO INHERENT IN OUR REPUBLICAN FORM OF GOVERNMENT AND SO WELL
ESTABLISHED THROUGHOUT OUR HISTORY THAT IF CONGRESS HAD DESIRED TO DRAW
A DISTINCTION ALONG THAT LINE, IT IS HARD TO IMAGINE THAT IT WOULD NOT
HAVE MADE ITS PURPOSE CLEAR IN THE LANGUAGE USED.  FN2 

IT IS TRUE THAT SECS. 19 AND 20 HAVE DIFFERENT ORIGINS.  SECTION 20
CAME INTO THE LAW AS SEC. 2 OF THE ACT OF APRIL 7, 1866, 14 STAT. 27,
WHILE SEC. 19 FIRST APPEARED AS SEC. 6 OF THE ACT OF MAY 31, 1870, 16
STAT. 141.  WE REVIEWED THE HISTORY OF SEC. 20 IN SCREWS V. UNITED
STATES, 325 U.S. 91, 98-100.  THE LEGISLATIVE HISTORY MAKES PLAIN THAT
SEC. 20 WAS AN ANTIDISCRIMINATION MEASURE DESIGNED TO PROTECT NEGROES
IN THEIR NEWLY WON RIGHTS.  IT WAS ENACTED BEFORE THE FOURTEENTH
AMENDMENT BECAME EFFECTIVE.  BUT AFTER THAT DATE IT WAS REENACTED AS
SEC. 17 OF THE ACT OF MAY 31, 1870, 16 STAT. 144; AND IN 1874 THE
PROHIBITION AGAINST "THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES, SECURED OR PROTECTED BY THE CONSTITUTION AND LAWS OF THE
UNITED STATES" WAS INTRODUCED.  R.S. SEC. 5510.  FROM THIS HISTORY
THERE CAN BE NO DOUBT, AS WE STATED IN SCREWS V. UNITED STATES, SUPRA,
P. 100, THAT SEC. 20 IS "ONE OF THE SANCTIONS TO THE GREAT RIGHTS WHICH
THE FOURTEENTH AMENDMENT WAS DESIGNED TO SECURE."  IF THAT BE TRUE - IF
"RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES" AS USED IN SEC. 20 ARE NOT
RESTRICTED TO RIGHTS WHICH THE FEDERAL GOVERNMENT CAN SECURE AGAINST
INTERFERENCE BY PRIVATE PERSONS - IT IS DIFFICULT TO UNDERSTAND WHY
"ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF
THE UNITED STATES," AS USED IN SEC. 19, IS SO RESTRICTED. 

IT IS TRUE THAT A PART OF THE PURPOSE OF SEC. 19(WHICH, AS I HAVE
SAID, ORIGINATED AS SEC. 6 OF THE ACT OF MAY 31, 1870, 16 STAT. 141)
WAS TO GIVE SANCTION TO THE RIGHT TO VOTE WHICH WAS GUARANTEED BY THE
FIFTEENTH AMENDMENT, RECENTLY ADOPTED.  THAT IS MADE PLAIN FROM THE
CONGRESSIONAL DEBATES.  CONG. GLOBE, PT. 4, 41ST CONG., 2D SESS., PP.
3607 ET SEQ. YET THE RIGHTS WHICH SEC. 19 PROTECTED WERE NOT CONFINED
TO VOTING RIGHTS; AND ONE WHO READS THE LEGISLATIVE HISTORY FINDS NO
TRACE OF A SUGGESTION THAT THE BROADENING OF THE LANGUAGE OF SEC. 19 TO
INCLUDE "ANY RIGHT OR PRIVILEGE SECURED" BY THE CONSTITUTION OR LAWS OF
THE UNITED STATES WAS AIMED ONLY AT THOSE RIGHTS "SECURED" BY THE
FEDERAL GOVERNMENT AGAINST INVASION BY PRIVATE PERSONS. 

THE DISTINCTION NOW URGED HAS NOT BEEN NOTICED BY STUDENTS OF THE
PERIOD.  THUS FLACK, IN ADOPTION OF THE FOURTEENTH AMENDMENT (1908), P.
223, WROTE, "THE BILL AS PASSED BY THE HOUSES WAS SIGNED BY THE
PRESIDENT MAY 31, 1870, AND SO BECAME A LAW, AND WAS, THEREFORE, THE
FIRST LAW FOR THE ENFORCEMENT OF THE FOURTEENTH AND FIFTEENTH
AMENDMENTS."  AND SEE MR. JUSTICE ROBERTS IN HAGUE V. C.I.O., 307 U.S.
496, 510.  IF THE DRASTIC RESTRICTION NOW PROPOSED FOR SEC. 19 HAD BEEN
PART OF THE ARCHITECTURAL SCHEME FOR THE ACT OF MAY 31, 1870, IT IS
DIFFICULT TO IMAGINE THAT SOME TRACE OF THE PURPOSE WOULD NOT HAVE BEEN
LEFT IN THE LEGISLATIVE HISTORY.  WHAT WE FIND POINTS INDEED THE OTHER
WAY.  SENATOR POOL OF NORTH CAROLINA, WHO INTRODUCED THE SECTION FROM
WHICH SEC. 19 EVOLVED, INDICATED THAT IT WAS HIS PURPOSE TO EXTEND THE
PROTECTION OF THE NEW PROVISION TO THE FOURTEENTH AS WELL AS TO THE
FIFTEENTH AMENDMENT.  FN3  IT HAS, INDEED, LONG BEEN ASSUMED THAT SEC.
19 HAD A COVERAGE BROAD ENOUGH TO INCLUDE ALL CONSTITUTIONAL RIGHTS. 
THUS IN UNITED STATES V. MOSLEY, 238 U.S. 383, 387, MR. JUSTICE HOLMES
OBSERVED THAT SEC. 19 "DEALT WITH FEDERAL RIGHTS AND WITH ALL FEDERAL
RIGHTS." 

THERE IS NO DECISION, PRIOR TO THAT OF THE COURT OF APPEALS IN THIS
CASE, WHICH IS OPPOSED TO THAT VIEW.  FOURTEENTH AMENDMENT RIGHTS HAVE
SOMETIMES BEEN ASSERTED UNDER SEC. 19 AND DENIED BY THE COURT.  THAT
WAS TRUE IN UNITED STATES V. CRUIKSHANK, 92 U.S. 542.  BUT THE DENIAL
HAD NOTHING TO DO WITH THE ISSUES IN THE PRESENT CASE.  THE FOURTEENTH
AMENDMENT PROTECTS THE INDIVIDUAL AGAINST STATE ACTION, NOT AGAINST
WRONGS DONE BY INDIVIDUALS.  SEE CIVIL RIGHTS CASES, 109 U.S. 3;
SHELLEY V. KRAEMER, 334 U.S. 1.  THE CRUIKSHANK CASE, LIKE OTHERS,  FN4
INVOLVED WRONGFUL ACTION BY INDIVIDUALS WHO DID NOT ACT FOR A STATE
NOR UNDER COLOR OF STATE AUTHORITY.  AS THE COURT IN THE CRUIKSHANK
CASE SAID, "THE FOURTEENTH AMENDMENT PROHIBITS A STATE FROM DENYING TO
ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS;
BUT THIS PROVISION DOES NOT, ANY MORE THAN THE ONE WHICH PRECEDES IT
...  ADD ANY THING TO THE RIGHTS WHICH ONE CITIZEN HAS UNDER THE
CONSTITUTION AGAINST ANOTHER."  92 U.S. AT PP. 554-555.  THERE IS
IMPLICIT IN THIS HOLDING, AS MR. JUSTICE RUTLEDGE OBSERVED IN THE
SCREWS CASE, SUPRA, P. 125, NOTE 22, THAT WRONGFUL ACTION BY STATE
OFFICIALS WOULD BRING THE CASE WITHIN SEC. 19.  FOR THE COURT IN THE
CRUIKSHANK CASE STATED, "THE ONLY OBLIGATION RESTING UPON THE UNITED
STATES IS TO SEE THAT THE STATES DO NOT DENY THE RIGHT.  THIS THE
AMENDMENT GUARANTEES, BUT NO MORE.  THE POWER OF THE NATIONAL
GOVERNMENT IS LIMITED TO THE ENFORCEMENT OF THIS GUARANTY." 

THE FOURTEENTH AMENDMENT.  SEE UNITED STATES V. HALL, 26 FED. CAS. 79;
UNITED STATES V. MALL, 26 FED. CAS. 1147; EX PARTE RIGGINS, 134 F. 404,
WRIT DISMISSED, 199 U.S. 547.  THOSE ATTEMPTS WHICH FAILED DID SO NOT
BECAUSE SEC. 19 WAS CONSTRUED TO HAVE TOO NARROW A SCOPE, BUT BECAUSE
THE ACTION COMPLAINED OF WAS INDIVIDUAL ACTION, NOT STATE ACTION.  SEE,
E.G., UNITED STATES V. POWELL, 151 F. 648, AFF'D, 212 U.S. 564; POWE V.
UNITED STATES, 109 F.2D 147. 

WHILE IT IS TRUE, AS MR. JUSTICE RUTLEDGE STATED IN THE SCREWS CASE,
THAT THERE IS NO DIFFERENCE BETWEEN SECS. 19 AND 20 SO FAR AS THE
"BASIC RIGHTS GUARDED" ARE CONCERNED, THE COVERAGE OF THE TWO SECTIONS
IS NOT COTERMINOUS.  THE DIFFERENCE IS NOT MERELY IN THE FACT THAT SEC.
19 COVERS CONSPIRACIES AND SEC. 20 SUBSTANTIVE OFFENSES.  SECTION 20
EXTENDS ONLY TO THOSE WHO ACT "UNDER COLOR" OF LAW, WHILE SEC. 19
REACHES "TWO OR MORE PERSONS" WHO CONSPIRE TO INJURE ANY CITIZEN IN THE
ENJOYMENT OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION,
ETC.  THE REACH OF SEC. 20 OVER DEPRIVATIONS OF RIGHTS PROTECTED FROM
INVASION BY PRIVATE PERSONS IS THEREFORE IN THIS ONE RESPECT LESS THAN
THAT OF SEC. 19.  BUT THAT IS NO COMFORT TO RESPONDENTS IN THE PRESENT
CASE.  IT CERTAINLY CANNOT BE DOUBTED THAT STATE OFFICERS, OR THOSE
ACTING UNDER COLOR OF STATE LAW, WHO CONSPIRE TO WRING CONFESSIONS FROM
AN ACCUSED BY FORCE AND VIOLENCE, ARE INCLUDED IN "TWO OR MORE PERSONS"
WITHIN THE MEANING OF SEC. 19.  AS WE HOLD IN NO. 365, WILLIAMS V.
UNITED STATES, POST, P. 97, DECIDED THIS DAY, SUCH AN ACT DEPRIVES THE
ACCUSED OF THE KIND OF TRIAL WHICH THE FOURTEENTH AMENDMENT
GUARANTEES.  HE IS THEREFORE DENIED THE ENJOYMENT OF THAT RIGHT, WITHIN
THE MEANING OF SEC. 19. 

IN SCREWS V. UNITED STATES, SUPRA, WE RELIEVED SEC. 20 OF THE RISK OF
UNCONSTITUTIONALITY BY REASON OF VAGUENESS.  WE HELD THAT "A
REQUIREMENT OF A SPECIFIC INTENT TO DEPRIVE A PERSON OF A FEDERAL RIGHT
MADE DEFINITE BY DECISION OR OTHER RULE OF LAW SAVES THE ACT FROM ANY
CHARGE OF UNCONSTITUTIONALITY ON THE GROUNDS OF VAGUENESS."  325 U.S.
AT P. 103.  THE SAME ANALYSIS DOES LIKE SERVICE HERE, AS EVIDENCED BOTH
BY THE CONSTRUCTION OF SEC. 19 AND THE CHARGE TO THE JURY IN THIS
CASE. 

A CONSPIRACY BY DEFINITION IS A CRIMINAL AGREEMENT FOR A SPECIFIC
VENTURE.  IT IS "A PARTNERSHIP IN CRIME."  UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S. 150, 253.  AS STATED BY MR. JUSTICE HOLMES IN
FROHWERK V. UNITED STATES, 249 U.S. 204, 209, AN "INTENT TO ACCOMPLISH
AN OBJECT CANNOT BE ALLEGED MORE CLEARLY THAN BY STATING THAT PARTIES
CONSPIRED TO ACCOMPLISH IT."  THE TRIAL COURT IN ITS CHARGE TO THE JURY
FOLLOWED THE RULING IN THE SCREWS CASE AND GAVE PRECISE APPLICATION TO
THIS CONCEPT IN AVOIDANCE OF ANY CLAIM OF UNCONSTITUTIONALITY OF SEC.
19 ON THE GROUNDS OF VAGUENESS.  THE COURT, AFTER EXPLAINING TO THE
JURY WHAT RIGHTS, ENUMERATED IN THE INDICTMENT, WERE GUARANTEED UNDER
THE FOURTEENTH AMENDMENT, GAVE NUMEROUS CHARGES ON THE ELEMENT OF
INTENT.  THE FOLLOWING IS TYPICAL: 

"IN ORDER TO CONVICT UNDER THIS INDICTMENT, IT IS NECESSARY FOR THE
JURY TO FIND THAT THE DEFENDANTS HAD IN MIND THE SPECIFIC PURPOSE OF
DEPRIVING THE COMPLAINING WITNESSES OF THOSE RIGHTS GUARANTEED THEM
UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES, WHICH ARE ENUMERATED IN THE INDICTMENT, WHILE ACTING UNDER
COLOR OF THE LAWS OF THE STATE OF FLORIDA. 

"THE PROOF, IF ANY, OF A GENERAL INTENT TO DO THE COMPLAINING
WITNESSES A WRONG IS NOT SUFFICIENT, BUT A SPECIFIC INTENT TO DEPRIVE
THEM OF A CONSTITUTIONAL RIGHT, AS THE OBJECT OF THE CONSPIRACY, IF
ANY, IS A BURDEN THE LAW CASTS UPON THE GOVERNMENT.  IN CONSIDERING
WHETHER THE DEFENDANTS HAD SUCH SPECIFIC INTENT, YOU MAY TAKE INTO
CONSIDERATION ALL THE CIRCUMSTANCES OF THE CASE IN THE LIGHT OF THE
EVIDENCE AS IT HAS BEEN DEVELOPED." 

IN VIEW OF THE NATURE OF THE CONSPIRACY AND CHARGE TO THE JURY IN THE
INSTANT CASE, IT WOULD BE INCONGRUOUS TO STRIKE SEC. 19 DOWN ON THE
GROUNDS OF VAGUENESS AND YET SUSTAIN SEC. 20 AS WE DID IN THE SCREWS
CASE. 

THE DEFENSE OF RES JUDICATA IS BASED ON THE ACQUITTAL OF FIVE OF THE
RESPONDENTS FOR VIOLATION OF SEC. 20 - THE SUBSTANTIVE OFFENSE.  IT IS
ARGUED THAT THERE IS NO EVIDENCE THAT THE FIVE CONSPIRED EXCEPT INSOFAR
AS THE UNLAWFUL AGREEMENT CAN BE INFERRED FROM THEIR HAVING
PARTICIPATED IN SOME WAY IN THE SUBSTANTIVE CRIME.  IT IS FURTHER
ARGUED THAT ACQUITTAL ON THE SUBSTANTIVE COUNTS WAS A DETERMINATION
THAT THE FIVE HAD NOTHING TO DO WITH THE COMMISSION OF THE SUBSTANTIVE
OFFENSE.  THE CONCLUSION THEREFORE IS THAT THEIR CONVICTION OF THE
CONSPIRACY ENTAILED A RELITIGATION, IN VIOLATION OF THE PRINCIPLES OF
SEALFON V. UNITED STATES, 332 U.S. 575, OF THE FACTUAL ISSUES INVOLVED
IN THE PRIOR TRIAL.    THE ARGUMENT, HOWEVER, IS TOO FACILE FOR THE
FACTS. 

FIRST.  THE SUBSTANTIVE CRIME WAS ONE OF AIDING AND ABETTING.  THAT
OFFENSE HAS "A BROADER APPLICATION" THAN CONSPIRACY.  "IT MAKES A
DEFENDANT A PRINCIPAL WHEN HE CONSCIOUSLY SHARES IN ANY CRIMINAL ACT
WHETHER OR NOT THERE IS A CONSPIRACY."  NYE & NISSEN V. UNITED STATES,
336 U.S. 613, 620.  RESPONDENTS MAY HAVE CONSPIRED TO DO THE ACT
WITHOUT ACTUALLY AIDING IN ITS COMMISSION.  IN OTHER WORDS, THE CRIMES
ARE DIFFERENT. 

SECOND.  IN THE SEALFON CASE THE JURY'S ACQUITTAL OF THE FIRST
OFFENSE NECESSARILY CONSTITUTED A REJECTION OF THE ONLY EVIDENCE
PRESENTED AT THE SECOND TRIAL AND UPON WHICH CONVICTION OF THE RECORD
OFFENSE DEPENDED.  THAT WAS NOT TRUE HERE.  THE ACQUITTALS ON THE
SUBSTANTIVE CHARGES BY NO MEANS ESTABLISHED THAT THE JURY REJECTED ALL
THE EVIDENCE AGAINST THE DEFENDANTS.  FOR EXAMPLE, THE ACQUITTALS OF
THE SUBSTANTIVE OFFENSE MAY HAVE BEEN ON THE GROUND THAT THE EVIDENCE
SHOWED NO GIVING OF ACTUAL AID TO WILLIAMS WHEN HE OBTAINED THE
CONFESSIONS BY FORCE AND VIOLENCE.  THE EVIDENCE, THOUGH INSUFFICIENT
TO SHOW THAT THE FIVE PARTICIPATED IN THE EXECUTION OF THE PROJECT,
COULD NONETHELESS MAKE OVERWHELMINGLY CLEAR THAT THEY WERE MEMBERS OF
THE CONSPIRACY THAT CONCEIVED IT. 

THE LINKS THAT TIED RESPONDENTS TO THE CONSPIRACY ARE THEREFORE NOT
NECESSARILY THOSE THAT THE JURY REJECTED IN THE EARLIER TRIAL. 
ACCORDINGLY THE RULE OF SEALFON V. UNITED STATES, SUPRA, HAS NO
APPLICATION. 

FN1  SECTION 19 OF THE CRIMINAL CODE, 18 U.S.C. (1946 ED.)  SEC.  51,
PROVIDED:  "IF TWO OR MORE PERSONS CONSPIRE TO INJURE, OPPRESS,
THREATEN, OR INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT
OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF
THE UNITED STATES, OR BECAUSE OF HIS HAVING SO EXERCISED THE SAME, OR
IF TWO OR MORE PERSONS GO IN DISGUISE ON THE HIGHWAY, OR ON THE
PREMISES OF ANOTHER, WITH INTENT TO PREVENT OR HINDER HIS FREE EXERCISE
OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SO SECURED, THEY SHALL BE FINED
NOT MORE THAN $5,000 AND IMPRISONED NOT MORE THAN TEN YEARS, AND SHALL,
MOREOVER, BE THEREAFTER INELIGIBLE TO ANY OFFICE, OR PLACE OF HONOR,
PROFIT, OR TRUST CREATED BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES." 

PROVIDED:  "WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, OR CUSTOM, WILLFULLY SUBJECTS, OR CAUSES TO BE SUBJECTED,
ANY INHABITANT OF ANY STATE, TERRITORY, OR DISTRICT TO THE DEPRIVATION
OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES, OR TO DIFFERENT
PUNISHMENTS, PAINS, OR PENALTIES, ON ACCOUNT OF SUCH INHABITANT BEING
AN ALIEN, OR BY REASON OF HIS COLOR, OR RACE, THAN ARE PRESCRIBED FOR
THE PUNISHMENT OF CITIZENS, SHALL BE FINED NOT MORE THAN $1,000, OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 

FN2  THE SUGGESTION THAT THE GENERAL CONSPIRACY STATUTE, SEC. 30 OF
THE ACT OF MARCH 2, 1867, 14 STAT. 484, ENACTED THREE YEARS BEFORE SEC.
19, WAS ADEQUATE TO REACH CONSPIRACIES UNDER COLOR OF STATE LAW TO
DEPRIVE PERSONS OF FOURTEENTH AMENDMENT RIGHTS AND THAT THEREFORE THE
INCLUSION OF SUCH RIGHTS IN SEC. 19 WAS NOT NECESSARY BEARS LITTLE
WEIGHT.  THE GENERAL CONSPIRACY STATUTE AS ORIGINALLY ENACTED CARRIED A
PENALTY OF NOT LESS THAN $1,000 AND NOT MORE THAN $10,000 AND
IMPRISONMENT NOT EXCEEDING 2 YEARS.  SECTION 19 HAS FROM THE BEGINNING
CARRIED A MORE SEVERE PENALTY - NOT MORE THAN $5,000 AND IMPRISONMENT
NOT TO EXCEED 10 YEARS.  MOREOVER, SEC. 19 AT THE TIME OF ITS ENACTMENT
CARRIED A FURTHER PENALTY:  THE PERSONS CONVICTED WERE DISABLED FROM
HOLDING "ANY OFFICE OR PLACE OF HONOR, PROFIT, OR TRUST CREATED BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES."  ACT OF MAY 31, 1870, SEC.
6, 16 STAT. 141.  THE PENALTY OF THE GENERAL CONSPIRACY STATUTE HAS
ONLY RECENTLY BEEN INCREASED.  SEE 18 U.S.C. (1946 ED., SUPP. III) SEC.
371, REVISER'S NOTE. 

FN3  AFTER DISCUSSING THE THIRTEENTH, FOURTEENTH, AND FIFTEENTH
AMENDMENTS HE SAID, "I BELIEVE THAT WE HAVE A PERFECT RIGHT UNDER THE
CONSTITUTION OF THE UNITED STATES, NOT ONLY UNDER THESE THREE
AMENDMENTS, BUT UNDER THE GENERAL SCOPE AND FEATURES AND SPIRIT OF THE
CONSTITUTION ITSELF, TO GO INTO ANY OF THESE STATES FOR THE PURPOSE OF
PROTECTING AND SECURING LIBERTY.  I ADMIT THAT WHEN YOU GO THERE FOR
THE PURPOSE OF RESTRAINING LIBERTY, YOU CAN GO ONLY UNDER DELEGATED
POWERS IN EXPRESS TERMS; BUT TO GO INTO THE STATES FOR THE PURPOSE OF
SECURING AND PROTECTING THE LIBERTY OF THE CITIZEN AND THE RIGHTS AND
IMMUNITIES OF AMERICAN CITIZENSHIP IS IN ACCORDANCE WITH THE SPIRIT AND
WHOLE OBJECT OF THE FORMATION OF THE UNION AND THE NATIONAL
GOVERNMENT. 

"THERE ARE, MR. PRESIDENT, VARIOUS WAYS IN WHICH THE RIGHT SECURED BY
THE FIFTEENTH AMENDMENT MAY BE ABRIDGED BY CITIZENS IN A STATE.  ...  I
BELIEVE THE LANGUAGE OF THE SENATE BILL IS SUFFICIENTLY LARGE AND
COMPREHENSIVE TO EMBRACE ANY OTHER CLASS OF OFFICERS THAT MIGHT BE
CHARGED WITH ANY ACT THAT WAS NECESSARY TO ENABLE A CITIZEN TO PERFORM
ANY PREREQUISITE TO VOTING.  BUT, SIR, INDIVIDUALS MAY PREVENT THE
EXERCISE OF THE RIGHT OF SUFFRAGE; INDIVIDUALS MAY PREVENT THE
ENJOYMENT OF OTHER RIGHTS WHICH ARE CONFERRED UPON THE CITIZEN BY THE
FOURTEENTH AMENDMENT, AS WELL AS TRESPASS UPON THE RIGHT CONFERRED BY
THE FIFTEENTH.  NOT ONLY CITIZENS, BUT ORGANIZATIONS OF CITIZENS,
CONSPIRACIES, MAY BE AND ARE, AS WE ARE TOLD, IN SOME OF THE STATES
FORMED FOR THAT PURPOSE.  I SEE IN THE FOURTH SECTION OF THE SENATE
BILL A PROVISION FOR CASES WHERE CITIZENS BY THREATS, INTIMIDATION,
BRIBERY, OR OTHERWISE PREVENT, DELAY, OR HINDER THE EXERCISE OF THIS
RIGHT; BUT THERE IS NOTHING HERE THAT STRIKES AT ORGANIZATIONS OF
INDIVIDUALS, AT CONSPIRACIES FOR THAT PURPOSE.  ... 

     .         .         . .         . 

"THAT THE UNITED STATES GOVERNMENT HAS THE RIGHT TO GO INTO THE
STATES AND ENFORCE THE FOURTEENTH AND THE FIFTEENTH AMENDMENTS IS, IN
MY JUDGMENT, PERFECTLY CLEAR, BY APPROPRIATE LEGISLATION THAT SHALL
BEAR UPON INDIVIDUALS.  I CANNOT SEE THAT IT WOULD BE POSSIBLE FOR
APPROPRIATE LEGISLATION TO BE RESORTED TO EXCEPT AS APPLICABLE TO
INDIVIDUALS WHO VIOLATE OR ATTEMPT TO VIOLATE THESE PROVISIONS. 
CERTAINLY WE CANNOT LEGISLATE HERE AGAINST STATES.  AS I SAID A FEW
MOMENTS AGO, IT IS UPON INDIVIDUALS THAT WE MUST PRESS OUR
LEGISLATION.  IT MATTERS NOT WHETHER THOSE INDIVIDUALS BE OFFICERS OR
WHETHER THEY ARE ACTING UPON THEIR OWN RESPONSIBILITY; WHETHER THEY ARE
ACTING SINGLY OR IN ORGANIZATIONS.  IF THERE IS TO BE APPROPRIATE
LEGISLATION AT ALL, IT MUST BE THAT WHICH APPLIES TO INDIVIDUALS. 

     .         .         .         .         . 

"MR. PRESIDENT, THE LIBERTY OF A CITIZEN OF THE UNITED STATES, THE
PREROGATIVES, THE RIGHTS, AND THE IMMUNITIES OF AMERICAN CITIZENSHIP,
SHOULD NOT BE AND CANNOT BE SAFELY LEFT TO THE MERE CAPRICE OF STATES
EITHER IN THE PASSAGE OF LAWS OR IN THE WITHHOLDING OF THAT PROTECTION
WHICH ANY EMERGENCY MAY REQUIRE.  IF A STATE BY OMISSION NEGLECTS TO
GIVE TO EVERY CITIZEN WITHIN ITS BORDERS A FREE, FAIR, AND FULL
EXERCISE AND ENJOYMENT OF HIS RIGHTS IT IS THE DUTY OF THE UNITED
STATES GOVERNMENT TO GO INTO THE STATE, AND BY ITS STRONG ARM TO SEE
THAT HE DOES HAVE THE FULL AND FREE ENJOYMENT OF THOSE RIGHTS."  CONG.
GLOBE, 41ST CONG., 2D SESS., PP. 3611, 3613. 

FN4  SEE HODGES V. UNITED STATES, 203 U.S. 1, 14; UNITED STATES V.
POWELL, 151 F. 648, AFF'D, 212 U.S. 564; UNITED STATES V. WHEELER, 254
U.S. 281, 298. 
..END :












WILLIAMS V. UNITED STATES, 341 U.S. 97 


NO. 365.  ARGUED JANUARY 8, 1951.  - DECIDED APRIL 23, 1951.  - 179 F.2D
656, AFFIRMED. 


1.  A SPECIAL POLICE OFFICER WHO, IN HIS OFFICIAL CAPACITY, BY USE OF
FORCE AND VIOLENCE, OBTAINS A CONFESSION FROM A PERSON SUSPECTED OF
CRIME MAY BE PROSECUTED UNDER WHAT IS NOW 18 U.S.C. SEC. 242, WHICH
MAKES IT AN OFFENSE FOR ANY PERSON, UNDER COLOR OF LAW, WILLFULLY TO
SUBJECT ANY INHABITANT OF ANY STATE, TERRITORY, OR DISTRICT TO THE
DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED OR
PROTECTED BY THE CONSTITUTION AND LAWS OF THE UNITED STATES.  PP. 98
104. 

2.  PETITIONER, A PRIVATE DETECTIVE WHO HELD A SPECIAL POLICE
OFFICER'S CARD ISSUED BY THE CITY OF MIAMI, FLA., AND HAD TAKEN AN OATH
AND QUALIFIED AS A SPECIAL POLICE OFFICER, WAS EMPLOYED BY A BUSINESS
CORPORATION TO ASCERTAIN THE IDENTITY OF THIEVES WHO HAD BEEN STEALING
ITS PROPERTY.  SHOWING HIS BADGE AND ACCOMPANIED BY A REGULAR
POLICEMAN, HE BEAT CERTAIN SUSPECTS AND THEREBY OBTAINED CONFESSIONS. 
HELD:  ON THE RECORD IN THIS CASE, PETITIONER WAS ACTING "UNDER COLOR"
OF LAW WITHIN THE MEANING OF SEC. 242, OR AT LEAST THE JURY COULD
PROPERLY SO FIND.  PP. 99-100. 

3.  AS APPLIED, UNDER THE FACTS OF THIS CASE, TO THE DENIAL OF RIGHTS
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, SEC. 242 IS
NOT VOID FOR VAGUENESS.  PP. 100-102. 

4.  WHERE POLICE TAKE MATTERS INTO THEIR OWN HANDS, SEIZE VICTIMS,
AND BEAT THEM UNTIL THEY CONFESS, THEY DEPRIVE THE VICTIMS OF RIGHTS
UNDER THE CONSTITUTION.  P. 101. 

5.  IN VIEW OF THE TERMS OF THE INDICTMENT, AS INTERPRETED BY THE
INSTRUCTIONS TO THE JURY, IT CANNOT BE SAID THAT ANY ISSUE OF VAGUENESS
OF SEC. 242, AS CONSTRUED AND APPLIED, IS PRESENT IN THIS CASE.  PP.
102-104. 

WILLIAMS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PETITIONER WAS CONVICTED OF A VIOLATION OF WHAT IS NOW 18 U.S.C. SEC.
242.  THE COURT OF APPEALS AFFIRMED.  179 F.2D 656.  THIS COURT GRANTED
CERTIORARI.  340 U.S. 850.  AFFIRMED, P. 104. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER A SPECIAL POLICE OFFICER WHO IN
HIS OFFICIAL CAPACITY SUBJECTS A PERSON SUSPECTED OF CRIME TO FORCE AND
VIOLENCE IN ORDER TO OBTAIN A CONFESSION MAY BE PROSECUTED UNDER SEC.
20 OF THE CRIMINAL CODE, 18 U.S.C. (1946 ED.)  SEC.  52, NOW 18 U.S.C.
SEC. 242. 


"WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM, WILLFULLY SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY INHABITANT
OF ANY STATE, TERRITORY, OR DISTRICT TO THE DEPRIVATION OF ANY RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY THE CONSTITUTION AND
LAWS OF THE UNITED STATES ...  SHALL BE FINED NOT MORE THAN $1,000, OR
IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 

THE FACTS ARE THESE:  THE LINDSLEY LUMBER CO. SUFFERED NUMEROUS
THEFTS AND HIRED PETITIONER, WHO OPERATED A DETECTIVE AGENCY, TO
ASCERTAIN THE IDENTITY OF THE THIEVES.  PETITIONER HELD A SPECIAL
POLICE OFFICER'S CARD ISSUED BY THE CITY OF MIAMI, FLORIDA, AND HAD
TAKEN AN OATH AND QUALIFIED AS A SPECIAL POLICE OFFICER.  PETITIONER
AND OTHERS OVER A PERIOD OF THREE DAYS TOOK FOUR MEN TO A PAINT SHACK
ON THE COMPANY'S PREMISES AND USED BRUTAL METHODS TO OBTAIN A
CONFESSION FROM EACH OF THEM.  A RUBBER HOSE, A PISTOL, A BLUNT
INSTRUMENT, A SASH CORD AND OTHER IMPLEMENTS WERE USED IN THE PROJECT. 
ONE MAN WAS FORCED TO LOOK AT A BRIGHT LIGHT FOR FIFTEEN MINUTES; WHEN
HE WAS BLINDED, HE WAS REPEATEDLY HIT WITH A RUBBER HOSE AND A SASH
CORD AND FINALLY KNOCKED TO THE FLOOR.  ANOTHER WAS KNOCKED FROM A
CHAIR AND HIT IN THE STOMACH AGAIN AND AGAIN.  HE WAS PUT BACK IN THE
CHAIR AND THE PROCEDURE WAS REPEATED.  ONE WAS BACKED AGAINST THE WALL
AND JAMMED IN THE CHEST WITH A CLUB.  EACH WAS BEATEN, THREATENED, AND
UNMERCIFULLY PUNISHED FOR SEVERAL HOURS UNTIL HE CONFESSED.  ONE FORD,
A POLICEMAN, WAS SENT BY HIS SUPERIOR TO LEND AUTHORITY TO THE
PROCEEDINGS.  AND PETITIONER, WHO COMMITTED THE ASSAULTS, WENT ABOUT
FLASHING HIS BADGE. 

THE INDICTMENT CHARGED AMONG OTHER THINGS THAT PETITIONER ACTING
UNDER COLOR OF LAW USED FORCE TO MAKE EACH VICTIM CONFESS TO HIS GUILT
AND IMPLICATE OTHERS, AND THAT THE VICTIMS WERE DENIED THE RIGHT TO BE
TRIED BY DUE PROCESS OF LAW AND IF FOUND GUILTY TO BE SENTENCED AND
PUNISHED IN ACCORDANCE WITH THE LAWS OF THE STATE.  PETITIONER WAS
FOUND GUILTY BY A JURY UNDER INSTRUCTIONS WHICH CONFORMED WITH THE
RULINGS OF THE COURT IN SCREWS V. UNITED STATES, 325 U.S. 91.  THE
COURT OF APPEALS AFFIRMED.  179 F.2D 656.  THE CASE, WHICH IS A
COMPANION TO NO. 26, UNITED STATES V. WILLIAMS, ANTE, P. 70, AND NO.
134, UNITED STATES V. WILLIAMS, ANTE, P. 58, DECIDED THIS DAY, IS HERE
ON CERTIORARI.  340 U.S. 850. 

WE THINK IT CLEAR THAT PETITIONER WAS ACTING "UNDER COLOR" OF LAW
WITHIN THE MEANING OF SEC. 20, OR AT LEAST THAT THE JURY COULD PROPERLY
SO FIND.  WE INTERPRETED THIS PHRASE OF SEC. 20 IN UNITED STATES V.
CLASSIC, 313 U.S. 299, 326, "MISUSE OF POWER, POSSESSED BY VIRTUE OF
STATE LAW AND MADE POSSIBLE ONLY BECAUSE THE WRONGDOER IS CLOTHED WITH
THE AUTHORITY OF STATE LAW, IS ACTION TAKEN 'UNDER COLOR OF' STATE
LAW."  AND SEE SCREWS V. UNITED STATES, SUPRA, 107-111.  IT IS COMMON
PRACTICE, AS WE NOTED IN LABOR BOARD V. JONES & LAUGHLIN CO., 331 U.S.
416, 429, FOR PRIVATE GUARDS OR DETECTIVES TO BE VESTED WITH
POLICEMEN'S POWERS.  WE KNOW FROM THE RECORD THAT THAT IS THE POLICY OF
MIAMI, FLORIDA.  MOREOVER, THIS WAS AN INVESTIGATION CONDUCTED UNDER
THE AEGIS OF THE STATE, AS EVIDENCED BY THE FACT THAT A REGULAR POLICE
OFFICER WAS DETAILED TO ATTEND IT.  WE NEED GO NO FURTHER TO CONCLUDE
THAT THE LOWER COURT, TO WHOM WE GIVE DEFERENCE ON LOCAL LAW MATTERS,
SEE GARDNER V. NEW JERSEY, 329 U.S. 565, 583, WAS CORRECT IN HOLDING
THAT PETITIONER WAS NO MERE INTERLOPER BUT HAD A SEMBLANCE OF
POLICEMAN'S POWER FROM FLORIDA.  THERE WAS, THEREFORE, EVIDENCE THAT HE
ACTED UNDER AUTHORITY OF FLORIDA LAW; AND THE MANNER OF HIS CONDUCT OF
THE INTERROGATIONS MAKES CLEAR THAT HE WAS ASSERTING THE AUTHORITY
GRANTED HIM AND NOT ACTING IN THE ROLE OF A PRIVATE PERSON.  IN ANY
EVENT, THE CHARGE TO THE JURY DREW THE LINE BETWEEN OFFICIAL AND
UNOFFICIAL CONDUCT WHICH WE EXPLORED IN SCREWS V. UNITED STATES, SUPRA,
111, AND GAVE PETITIONER ALL OF THE PROTECTION WHICH "COLOR OF" LAW AS
USED IN SEC. 20 OFFERS. 

THE MAIN CONTENTION IS THAT THE APPLICATION OF SEC. 20 SO AS TO
SUSTAIN A CONVICTION FOR OBTAINING A CONFESSION BY USE OF FORCE AND
VIOLENCE IS UNCONSTITUTIONAL.  THE ARGUMENT IS THE ONE THAT A CLEAR
MAJORITY OF THE COURT REJECTED IN SCREWS V. UNITED STATES, AND RUNS AS
FOLLOWS: 

CRIMINAL STATUTES MUST HAVE AN ASCERTAINABLE STANDARD OF GUILT OR
THEY FALL FOR VAGUENESS.  SEE UNITED STATES V. COHEN GROCERY CO., 255
U.S. 81; WINTERS V. NEW YORK, 333 U.S. 507.  SECTION 20, IT IS ARGUED,
LACKS THE NECESSARY SPECIFICITY WHEN RIGHTS UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT ARE INVOLVED.  WE ARE POINTED TO THE
COURSE OF DECISIONS BY THIS COURT UNDER THE DUE PROCESS CLAUSE AS PROOF
OF THE VAGUE AND FLUID STANDARD FOR "RIGHTS, PRIVILEGES, OR IMMUNITIES
SECURED OR PROTECTED BY THE CONSTITUTION" AS USED IN SEC. 20.  WE ARE
REFERRED TO DECISIONS WHERE WE HAVE BEEN CLOSELY DIVIDED ON WHETHER
STATE ACTION VIOLATED DUE PROCESS.  MORE SPECIFICALLY WE ARE CITED MANY
INSTANCES WHERE THE COURT HAS BEEN CONSPICUOUSLY IN DISAGREEMENT ON THE
ILLEGAL CHARACTER OF CONFESSIONS UNDER THE DUE PROCESS CLAUSE.  IF THE
COURT CANNOT AGREE AS TO WHAT CONFESSIONS VIOLATE THE FOURTEENTH
AMENDMENT, HOW CAN ONE WHO RISKS CRIMINAL PROSECUTIONS FOR HIS ACTS BE
SURE OF THE STANDARD?  THUS IT IS SOUGHT TO SHOW THAT POLICE OFFICERS
SUCH AS PETITIONER WALK ON GROUND FAR TOO TREACHEROUS FOR CRIMINAL
RESPONSIBILITY. 

MANY CRIMINAL STATUTES MIGHT BE EXTENDED TO CIRCUMSTANCES SO EXTREME
AS TO MAKE THEIR APPLICATION UNCONSTITUTIONAL.  CONVERSELY, AS WE HELD
IN SCREWS V. UNITED STATES, A CLOSE CONSTRUCTION WILL OFTEN SAVE AN ACT
FROM VAGUENESS THAT IS FATAL.  THE PRESENT CASE IS AS GOOD AN
ILLUSTRATION AS ANY.  IT IS AS PLAIN AS A PIKESTAFF THAT THE PRESENT
CONFESSIONS WOULD NOT BE ALLOWED IN EVIDENCE WHATEVER THE SCHOOL OF
THOUGHT CONCERNING THE SCOPE AND MEANING OF THE DUE PROCESS CLAUSE. 
THIS IS THE CLASSIC USE OF FORCE TO MAKE A MAN TESTIFY AGAINST
HIMSELF.  THE RESULT IS AS PLAIN AS IF THE RACK, THE WHEEL, AND THE
THUMB SCREW - THE ANCIENT METHODS OF SECURING EVIDENCE BY TORTURE
(BROWN V. MISSISSIPPI, 297 U.S. 278, 285-286; CHAMBERS V. FLORIDA, 309
U.S. 227, 237) - WERE USED TO COMPEL THE CONFESSION.  SOME DAY THE
APPLICATION OF SEC. 20 TO LESS OBVIOUS METHODS OF COERCION MAY BE
PRESENTED AND DOUBTS AS TO THE ADEQUACY OF THE STANDARD OF GUILT MAY BE
PRESENTED.  THERE MAY BE A SIMILAR DOUBT WHEN AN OFFICER IS TRIED UNDER
SEC. 20 FOR BEATING A MAN TO DEATH.  THAT WAS A DOUBT STIRRED IN THE
SCREWS CASE; AND IT WAS THE REASON WE HELD THAT THE PURPOSE MUST BE
PLAIN, THE DEPRIVATION OF THE CONSTITUTIONAL RIGHT WILLFUL.  BUT WHERE
POLICE TAKE MATTERS IN THEIR OWN HANDS, SEIZE VICTIMS, BEAT AND POUND
THEM UNTIL THEY CONFESS, THERE CANNOT BE THE SLIGHTEST DOUBT THAT THE
POLICE HAVE DEPRIVED THE VICTIM OF A RIGHT UNDER THE CONSTITUTION.  IT
IS THE RIGHT OF THE ACCUSED TO BE TRIED BY A LEGALLY CONSTITUTED COURT,
NOT BY A KANGAROO COURT.  HENCE WHEN OFFICERS WRING CONFESSIONS FROM
THE ACCUSED BY FORCE AND VIOLENCE, THEY VIOLATE SOME OF THE MOST
FUNDAMENTAL, BASIC, AND WELL-ESTABLISHED CONSTITUTIONAL RIGHTS WHICH
EVERY CITIZEN ENJOYS.  PETITIONER AND HIS ASSOCIATES ACTED WILLFULLY
AND PURPOSELY; THEIR AIM WAS PRECISELY TO DENY THE PROTECTION THAT THE
CONSTITUTION AFFORDS* .  IT WAS AN ARROGANT AND BRUTAL DEPRIVATION OF
RIGHTS WHICH THE CONSTITUTION SPECIFICALLY GUARANTEES.  SECTION 20
WOULD BE DENIED THE HIGH SERVICE FOR WHICH IT WAS DESIGNED IF RIGHTS SO
PALPABLY PLAIN WERE DENIED ITS PROTECTION.  ONLY CASUISTRY COULD MAKE
VAGUE AND NEBULOUS WHAT OUR CONSTITUTIONAL SCHEME MAKES SO CLEAR AND
SPECIFIC. 

*THE TRIAL JUDGE CHARGED IN PART ON THIS PHASE OF THE CASE:  "THE LAW
DENIES TO ANYONE ACTING UNDER COLOR OF LAW, STATUTE, ORDINANCE,
REGULATION OR CUSTOM THE RIGHT TO TRY A PERSON BY ORDEAL; THAT IS, FOR
THE OFFICER HIMSELF TO INFLICT SUCH PUNISHMENT UPON THE PERSON AS HE
THINKS THE PERSON SHOULD RECEIVE.  NOW IN DETERMINING WHETHER THIS
REQUISITE OF WILLFUL INTENT WAS PRESENT IN THIS CASE AS TO THESE
COUNTS, YOU GENTLEMEN ARE ENTITLED TO CONSIDER ALL THE ATTENDANT
CIRCUMSTANCES; THE MALICE, IF ANY, OF THE DEFENDANTS TOWARD THESE MEN;
THE WEAPON USED IN THE ASSAULT, IF ANY; AND THE CHARACTER AND DURATION
OF THE INVESTIGATION, IF ANY, OF THE ASSAULT, IF ANY, AND THE TIME AND
MANNER IN WHICH IT WAS CARRIED OUT.  ALL THESE FACTS AND CIRCUMSTANCES
MAY BE TAKEN INTO CONSIDERATION FROM THE EVIDENCE THAT HAS BEEN
SUBMITTED FOR THE PURPOSE OF DETERMINING WHETHER THE ACTS OF THE
DEFENDANTS WERE WILLFUL AND FOR THE DELIBERATE AND WILLFUL PURPOSE OF
DEPRIVING THESE MEN OF THEIR CONSTITUTIONAL RIGHTS TO BE TRIED BY A
JURY JUST LIKE EVERYONE ELSE." 

AN EFFORT, HOWEVER, IS MADE TO FREE WILLIAMS BY AN EXTREMELY
TECHNICAL CONSTRUCTION OF THE INDICTMENT AND CHARGE, SO AS TO CONDEMN
THE APPLICATION OF SEC. 20 ON THE GROUNDS OF VAGUENESS. 

THE INDICTMENT CHARGED THAT PETITIONERS DEPRIVED DESIGNATED PERSONS
OF RIGHTS AND PRIVILEGES SECURED TO THEM BY THE FOURTEENTH AMENDMENT. 
THESE DEPRIVATIONS WERE DEFINED IN THE INDICTMENT TO INCLUDE "ILLEGAL"
ASSAULT AND BATTERY.  BUT THE MEANING OF THESE RIGHTS IN THE CONTEXT OF
THE INDICTMENT WAS PLAIN, VIZ. IMMUNITY FROM THE USE OF FORCE AND
VIOLENCE TO OBTAIN A CONFESSION.  THUS COUNT 2 OF THE INDICTMENT
CHARGES THAT THE FOURTEENTH AMENDMENT RIGHTS OF ONE PURNELL WERE
VIOLATED IN THE FOLLOWING RESPECTS: 

"  ...  THE RIGHT AND PRIVILEGE NOT TO BE DEPRIVED OF LIBERTY WITHOUT
DUE PROCESS OF LAW, THE RIGHT AND PRIVILEGE TO BE SECURE IN HIS PERSON
WHILE IN THE CUSTODY OF THE STATE OF FLORIDA, THE RIGHT AND PRIVILEGE
NOT TO BE SUBJECTED TO PUNISHMENT WITHOUT DUE PROCESS OF LAW, THE RIGHT
AND PRIVILEGE TO BE IMMUNE, WHILE IN THE CUSTODY OF PERSONS ACTING
UNDER COLOR OF THE LAWS OF THE STATE OF FLORIDA, FROM ILLEGAL ASSAULT
AND BATTERY BY ANY PERSON EXERCISING THE AUTHORITY OF SAID STATE, AND
THE RIGHT AND PRIVILEGE TO BE TRIED BY DUE PROCESS OF LAW AND IF FOUND
GUILTY TO BE SENTENCED AND PUNISHED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF FLORIDA; THAT IS TO SAY, ON OR ABOUT THE 28TH DAY OF MARCH,
1947, THE DEFENDANTS ARRESTED AND DETAINED AND CAUSED TO BE ARRESTED
AND DETAINED THE SAID FRANK J. PURNELL, JR., AND BROUGHT AND CAUSED HIM
TO BE BROUGHT TO AND INTO A CERTAIN BUILDING SOMETIMES CALLED A SHACK
ON THE PREMISES OF THE LINDSLEY LUMBER CO., AT OR NEAR 3810 N.W. 17TH
AVENUE, IN SAID CITY OF MIAMI, FLORIDA, AND DID THERE DETAIN THE SAID
FRANK J. PURNELL, JR., AND WHILE HE WAS SO DETAINED THE DEFENDANTS DID
THEN AND THERE ILLEGALLY STRIKE, BRUISE, BATTER, BEAT, ASSAULT AND
TORTURE THE SAID FRANK J. PURNELL, JR., IN ORDER ILLEGALLY TO COERCE
AND FORCE THE SAID FRANK J. PURNELL, JR., TO MAKE AN ADMISSION AND
CONFESSION OF HIS GUILT IN CONNECTION WITH THE ALLEGED THEFT OF
PERSONAL PROPERTY, ALLEGED TO BE THE PROPERTY OF SAID LINDSLEY LUMBER
CO., AND IN ORDER ILLEGALLY TO COERCE AND FORCE THE SAID FRANK J.
PURNELL, JR., TO NAME AND ACCUSE OTHER PERSONS AS PARTICIPANTS IN
ALLEGED THEFTS OF PERSONAL PROPERTY, ALLEGED TO BE THE PROPERTY OF THE
SAID LINDSLEY LUMBER CO., AND FOR THE PURPOSE OF IMPOSING ILLEGAL
SUMMARY PUNISHMENT UPON THE SAID FRANK J. PURNELL, JR." 

THE TRIAL JUDGE IN HIS CHARGE TO THE JURY SUMMARIZED COUNT 2 AS
MEANING THAT THE DEFENDANTS BEAT PURNELL "FOR THE PURPOSE OF FORCING
HIM TO MAKE A CONFESSION AND FOR THE PURPOSE OF IMPOSING ILLEGAL
SUMMARY PUNISHMENT UPON HIM."  HE FURTHER MADE CLEAR THAT THE
DEFENDANTS WERE "NOT HERE ON TRIAL FOR A VIOLATION OF ANY LAW OF THE
STATE OF FLORIDA FOR ASSAULT" NOR "FOR ASSAULT UNDER ANY LAWS OF THE
UNITED STATES."  THERE CANNOT BE THE SLIGHTEST DOUBT FROM THE READING
OF THE INDICTMENT AND CHARGE AS A WHOLE THAT THE DEFENDANTS WERE
CHARGED WITH AND TRIED FOR ONE OF THE MOST BRUTAL DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS THAT CAN BE IMAGINED.  IT THEREFORE STRAINS AT
TECHNICALITIES TO SAY THAT ANY ISSUE OF VAGUENESS OF SEC. 20 AS
CONSTRUED AND APPLIED IS PRESENT IN THE CASE.  OUR CONCERN IS TO SEE
THAT SUBSTANTIAL JUSTICE IS DONE, NOT TO SEARCH THE RECORD FOR POSSIBLE
ERRORS WHICH WILL DEFEAT THE GREAT PURPOSE OF CONGRESS IN ENACTING SEC.
20.  AFFIRMED. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON AND MR. JUSTICE MINTON,
DISSENTING. 

EXPERIENCE IN THE EFFORT TO APPLY THE DOCTRINE OF SCREWS V. UNITED
STATES, 325 U.S. 91, LEADS MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON
AND MR. JUSTICE MINTON TO DISSENT FOR THE REASONS SET FORTH IN DISSENT
IN THAT CASE. 
..END :











CALIFORNIA AUTO. ASSN. V. MALONEY, 341 U.S. 105 


NO. 310.  ARGUED MARCH 8, 1951.  - DECIDED APRIL 23, 1951.  - 96 CAL.
APP.2D 876, 216 P.2D 882, AFFIRMED. 


THE CALIFORNIA COMPULSORY ASSIGNED RISK LAW REQUIRES ALL INSURERS
TRANSACTING LIABILITY INSURANCE IN THE STATE TO PARTICIPATE IN A PLAN
FOR THE EQUITABLE APPORTIONMENT AMONG THEM OF THOSE APPLICANTS FOR
AUTOMOBILE LIABILITY INSURANCE WHO ARE IN GOOD FAITH ENTITLED TO SUCH
INSURANCE (TO ENABLE THEM TO RETAIN DRIVERS' LICENSES) BUT ARE UNABLE
TO PROCURE IT THROUGH ORDINARY METHODS.  UNINSURABLE RISKS ARE EXCLUDED
FROM THE PLAN, POLICIES ISSUED MAY BE LIMITED TO COVERAGES OF $5,000
$10,000, AND PREMIUMS COMMENSURATE WITH ABNORMAL RISKS MAY BE CHARGED. 
APPELLANT IS AN UNINCORPORATED ASSOCIATION ENGAGED IN WRITING
RECIPROCAL LIABILITY INSURANCE SOLELY FOR MEMBERS OF AN AUTOMOBILE CLUB
HAVING A SELECTED MEMBERSHIP, AND THE PLAN WOULD REQUIRE IT TO WRITE
INSURANCE FOR NONMEMBERS OF THE CLUB WHO ARE POOR RISKS.  HELD:  AS
APPLIED TO APPELLANT, THE STATUTE DOES NOT VIOLATE THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 106-111. 

CALIFORNIA STATE AUTOMOBILE ASSOCIATION INTER-INSURANCE BUREAU V.
MALONEY, INSURANCE COMMISSIONER. 

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT. 

A CALIFORNIA COURT SUSTAINED THE CALIFORNIA COMPULSORY ASSIGNED RISK
LAW, CAL. STAT. 1947, C. 39, P. 525, AS AMENDED, AGAINST A CLAIM THAT
IT VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  96
CAL. APP.2D 876, 216 P.2D 882.  ON APPEAL TO THIS COURT, AFFIRMED, P.
111. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLANT IS AN UNINCORPORATED ASSOCIATION WHICH THE CALIFORNIA
DISTRICT COURT OF APPEAL ANALOGIZES TO A MUTUAL INSURANCE CORPORATION. 
THE DETAILS OF ITS ORGANIZATION AND OPERATION ARE NOT IMPORTANT HERE. 
IT IS SUPERVISED BY THE INSURANCE COMMISSIONER OF CALIFORNIA, LIKE
OTHER INSURANCE COMPANIES DOING A LIABILITY INSURANCE BUSINESS.  IT WAS
FORMED TO WRITE AUTOMOBILE INSURANCE TO A SELECT GROUP OF MEMBERS AT A
LOWER COST THAN THE THEN PREVAILING RATE.  A CALIFORNIA LAW REQUIRING
PROOF OF FINANCIAL RESPONSIBILITY FROM CERTAIN PEOPLE BEFORE ISSUING
THEM A LICENSE TO DRIVE A CAR, PROVIDES THAT A PERSON WHO DOES NOT PAY
A JUDGMENT OF $100 OR MORE ARISING OUT OF AN AUTOMOBILE ACCIDENT HAS
HIS DRIVER'S LICENSE SUSPENDED, AND THE SUSPENSION CAN BE LIFTED ONLY
BY PAYING THE JUDGMENT AND ESTABLISHING HIS ABILITY TO PAY CLAIMS
ARISING FROM FUTURE ACCIDENTS.  THAT ABILITY TO PAY MAY BE ESTABLISHED
BY PROOF THAT THE PERSON IS INSURED, BY POSTING A SURETY BOND, OR BY
DEPOSIT OF $11,000 IN CASH.  CAL. VEHICLE CODE, 1943, SECS. 410, 414. 
ANOTHER LAW REQUIRES OPERATORS OF TRUCKS FOR HIRE TO SUPPLY SUCH
EVIDENCE OF FINANCIAL RESPONSIBILITY BEFORE THEY MAY GET PERMITS TO
OPERATE TRUCKS.  CAL. STAT. 1935, C. 312. 

ONE RESULT OF THESE LAWS WAS TO MAKE IT IMPOSSIBLE FOR A LARGE NUMBER
OF DRIVERS - CLASSIFIED AS POOR RISKS BY THE INSURANCE COMPANIES AND
NOT POSSESSING ENOUGH RESOURCES TO GET A SURETY BOND OR TO MAKE THE
CASH DEPOSIT - TO RECEIVE DRIVERS' LICENSES TO OPERATE MOTOR VEHICLES. 
SOME OF THESE PEOPLE WERE POOR RISKS, OTHERS WERE NOT.  MANY HARDSHIP
CASES DEVELOPED AMONG PEOPLE WHO WERE DEPENDENT ON THE USE OF THE
HIGHWAYS FOR A LIVING.  THERE WAS A PROPOSAL THAT CALIFORNIA GO INTO
THE INSURANCE BUSINESS AND INSURE THESE AND OTHER RISKS.  THE INSURANCE
COMPANIES COUNTERED BY ADOPTING A VOLUNTARY ASSIGNED RISK PLAN UNDER
WHICH ALL AUTOMOBILE INSURANCE COMPANIES DOING BUSINESS IN CALIFORNIA
UNDERTOOK TO INSURE SOME, THOUGH NOT ALL, OF THE GROUPS UNABLE TO
OBTAIN INSURANCE.  THIS PLAN, APPROVED BY CALIFORNIA'S INSURANCE
DEPARTMENT, PROVIDED FOR THE ALLOCATION OF APPLICANTS TO THE
SUBSCRIBING INSURERS IN PROPORTION TO THE AMOUNT OF AUTOMOBILE
INSURANCE WRITTEN BY EACH IN THE PRECEDING YEAR. 

THE VOLUNTARY PLAN DID NOT REACH ALL APPLICANTS.  MOREOVER, APPELLANT
WITHDREW FROM IT, CAUSING THE OTHER INSURERS TO BE RELUCTANT TO
CONTINUE IT.  THEREUPON THE LEGISLATURE ENACTED THE COMPULSORY ASSIGNED
RISK LAW.  CAL. STAT. 1947, C. 39, P. 525, AS AMENDED, C. 1205.  IT
PROVIDES THAT THE INSURANCE COMMISSIONER SHALL APPROVE "A REASONABLE
PLAN FOR THE EQUITABLE APPORTIONMENT" AMONG INSURERS OF APPLICANTS FOR
AUTOMOBILE INSURANCE "WHO ARE IN GOOD FAITH  FN1  ENTITLED TO BUT ARE
UNABLE TO PROCURE SUCH INSURANCE THROUGH ORDINARY METHODS."  CAL. INS.
CODE, 1947, SEC. 11620.  IT IS MANDATORY ON ALL INSURERS TO SUBSCRIBE
TO THE PLAN.  ID. SECS. 11625, 11626. 

THE PLAN APPROVED BY THE COMMISSIONER WAS OBJECTIONABLE TO APPELLANT,
WHO REFUSED TO SUBSCRIBE TO IT.  THE COMMISSIONER, ACTING PURSUANT TO
AUTHORITY GRANTED HIM, SUSPENDED APPELLANT'S PERMIT TO TRANSACT
AUTOMOBILE LIABILITY INSURANCE IN CALIFORNIA.  APPELLANT CONTESTED THE
SUSPENSION IN THE CALIFORNIA COURTS.  THE DISTRICT COURT OF APPEAL
SUSTAINED THE ACT AGAINST THE CLAIM THAT IT VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  96 CAL. APP.2D 876, 216 P.2D 882. 
A PETITION FOR HEARING WAS DENIED BY THE SUPREME COURT.  THE CASE IS
HERE ON APPEAL.  28 U.S.C. SEC. 1257(2). 

APPELLANT ASSAILS THE CONSTITUTIONALITY OF THE ACT UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ON THE FOLLOWING GROUNDS:
IT COMMANDS INSURERS TO ENTER INTO CONTRACTS AND TO INCUR LIABILITIES
AGAINST THEIR WILL; IT FORCES ON INSURERS CONTRACTS THAT HAVE ABNORMAL
RISKS AND FROM WHICH FINANCIAL LOSS MAY BE EXPECTED; IT REQUIRES
APPELLANT TO ALTER ITS TYPE OF BUSINESS FROM A COOPERATIVE WITH A
SELECT MEMBERSHIP TO A VENTURE INSURING MEMBERS OF THE GENERAL PUBLIC. 

APPELLANT IN SUPPORT OF ITS CONTENTIONS PRESSES MICHIGAN COMMISSION
V. DUKE, 266 U.S. 570, AND FROST TRUCKING CO. V. RAILROAD COMM'N, 271
U.S. 583, ON US.  THOSE CASES HELD THAT PRIVATE CARRIERS BY MOTOR
VEHICLE COULD NOT CONSISTENTLY WITH DUE PROCESS BE CONVERTED INTO
PUBLIC CARRIERS BY LEGISLATIVE FIAT NOR BE ALLOWED TO USE THE PUBLIC
HIGHWAYS ONLY ON CONDITION THAT THEY BECOME COMMON CARRIERS.  WE PUT
THOSE CASES TO ONE SIDE.  TO BE SURE, APPELLANT IS REQUIRED TO INSURE
MEMBERS OF A DIFFERENT GROUP THAN THE SELECT ONE IT VOLUNTARILY
UNDERTOOK TO SERVE.  BUT THERE ARE IMPORTANT RESTRICTIONS ON THE
FINANCIAL COMMITMENTS INCIDENT TO THE BROADENED UNDERTAKING.  WE WERE
ADVISED ON THE ARGUMENT THAT THE PREMIUMS CHARGEABLE CAN BE
COMMENSURATE WITH THE GREATER RISKS OF THE NEW BUSINESS.  CONFISCATION
IS THEREFORE NOT A FACTOR IN THE CASE.  MOREOVER, THE CALIFORNIA
STATUTE PROVIDES FOR AN EQUITABLE APPORTIONMENT OF THE ASSIGNED RISKS
AMONG ALL INSURERS, NOT THAT APPELLANT SERVE ALL COMERS.  FURTHERMORE,
UNINSURABLE RISKS ARE ELIMINATED FROM THE PLAN; AND POLICIES ISSUED MAY
PROVIDE LIMITED COVERAGE OF $5,000-$10,000. 

THE CASE IN ITS BROADEST REACH IS ONE IN WHICH THE STATE REQUIRES IN
THE PUBLIC INTEREST EACH MEMBER OF A BUSINESS TO ASSUME A PRO RATA
SHARE OF A BURDEN WHICH MODERN CONDITIONS HAVE MADE INCIDENT TO THE
BUSINESS.  IT IS THEREFORE NOT UNLIKE NOBLE STATE BANK V. HASKELL, 219
U.S. 104, WHICH SUSTAINED A STATE LAW ASSESSING EACH STATE BANK FOR THE
CREATION OF A DEPOSITORS' GUARANTY FUND.  WHAT WAS THERE SAID ABOUT THE
POLICE POWER - THAT IT "EXTENDS TO ALL THE GREAT PUBLIC NEEDS" AND MAY
BE UTILIZED IN AID OF WHAT THE LEGISLATIVE JUDGMENT DEEMS NECESSARY TO
THE PUBLIC WELFARE (P. 111) - IS PECULIARLY APT WHEN THE BUSINESS OF
INSURANCE IS INVOLVED - A BUSINESS TO WHICH THE GOVERNMENT HAS LONG HAD
A "SPECIAL RELATION."  FN2  SEE OSBORN V. OZLIN, 310 U.S. 53, 65, 66. 
HERE, AS IN THE BANKING FIELD, THE POWER OF THE STATE IS BROAD ENOUGH
TO TAKE OVER THE WHOLE BUSINESS, LEAVING NO PART FOR PRIVATE
ENTERPRISE.  MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S. 219; OSBORN V.
OZLIN, SUPRA, P. 66.  THE STATE MAY THEREFORE HOLD ITS HAND ON
CONDITION THAT LOCAL NEEDS BE SERVICED BY THE BUSINESS.  OSBORN V.
OZLIN, SUPRA, WAS SUCH A CASE; IT SUSTAINED ON THAT THEORY VIRGINIA'S
LAW REQUIRING VIRGINIA RESIDENTS TO HAVE A SHARE IN WRITING CASUALTY
AND SURETY RISKS IN VIRGINIA.  THE PRINCIPLE OF OSBORN V. OZLIN NOW
PRESSES FOR RECOGNITION IN A SITUATION AS ACUTE AS ANY WITH WHICH THE
STATES HAVE HAD TO DEAL.  HIGHWAY ACCIDENTS WITH THEIR TRAIN OF
PROPERTY AND PERSONAL INJURIES ARE NOTORIOUSLY IMPORTANT PROBLEMS IN
EVERY COMMUNITY.  CLEARING THE HIGHWAYS OF IRRESPONSIBLE DRIVERS,
DEVISING WAYS AND MEANS FOR MAKING SURE THAT COMPENSATION IS AWARDED
THE INNOCENT VICTIMS, AND YET MANAGING A SCHEME WHICH LEAVES THE
HIGHWAYS OPEN FOR THE LIVELIHOOD OF THE DESERVING ARE PROBLEMS THAT
HAVE TAXED THE INGENUITY OF LAW MAKERS AND ADMINISTRATORS. 

WHETHER CALIFORNIA'S PROGRAM IS WISE OR UNWISE IS NOT OUR CONCERN. 
SEE OLSEN V. NEBRASKA, 313 U.S. 236; LINCOLN UNION V. NORTHWESTERN CO.,
335 U.S. 525.  THE PROBLEM IS A LOCAL ONE ON WHICH VIEWS WILL VARY.  WE
CANNOT SAY CALIFORNIA WENT BEYOND PERMISSIBLE LIMITS WHEN IT MADE THE
LIABILITY INSURANCE BUSINESS ACCEPT INSURABLE RISKS WHICH CIRCUMSTANCES
BARRED FROM INSURANCE AND HENCE FROM THE HIGHWAYS.  APPELLANT'S
BUSINESS MAY OF COURSE BE LESS PROSPEROUS AS A RESULT OF THE
REGULATION.  THAT DIMINUTION IN VALUE, HOWEVER, HAS NEVER MOUNTED TO
THE DIGNITY OF A TAKING IN THE CONSTITUTIONAL SENSE.  SEE NOBLE STATE
BANK V. HASKELL, SUPRA, P. 110; BLOCK V. HIRSH, 256 U.S. 135, 155. 
AFFIRMED. 

FN1  UNDER THE PLAN APPROVED BY THE COMMISSIONER, CAL. ADMINISTRATIVE
CODE, 1947, TIT. 10, SECS. 2400-2498, THERE ARE SEVERAL CATEGORIES OF
PEOPLE EXCLUDED.  THOSE EXCLUDED COVER A WIDE RANGE.  THE FOLLOWING ARE
ILLUSTRATIVE:  THOSE CONVICTED MORE THAN ONCE, WITHIN THREE YEARS OF
APPLICATION, OF MANSLAUGHTER OR NEGLIGENT HOMICIDE RESULTING FROM
OPERATION OF THE VEHICLE; THOSE CONVICTED MORE THAN TWICE, IN THE SAME
THREE-YEAR PERIOD, OF DRIVING WHILE INTOXICATED OR UNDER THE INFLUENCE
OF LIQUOR; THOSE ADDICTED TO USE OF DRUGS.  SEC. 2431. 

FN2  STATE REGULATION OF THE INSURANCE BUSINESS HAS BEEN UPHELD IN A
WIDE VARIETY OF CIRCUMSTANCES AGAINST THE CLAIM THAT THE LAW VIOLATED
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT:  SEE HOOPER V.
CALIFORNIA, 155 U.S. 648, REQUIREMENT OF LICENSE AND BOND; ORIENT
INSURANCE CO. V. DAGGS, 172 U.S. 557, FIXING RECOVERY AT INSURED VALUE;
NUTTING V. MASSACHUSETTS, 183 U.S. 553, LICENSE AND DEPOSIT OF
SECURITY; CARROLL V. GREENWICH INSURANCE CO., 199 U.S. 401, PROHIBITION
OF COMBINATIONS OR AGREEMENTS BETWEEN COMPANIES; NORTHWESTERN LIFE INS.
CO. V. RIGGS, 203 U.S. 243, LIMITATION OF DEFENSES; WHITFIELD V. AETNA
LIFE INS. CO., 205 U.S. 489, SAME; GERMAN ALLIANCE INS. CO. V. HALE,
219 U.S. 307, STATUTORY PENALTY AGAINST RATE-FIXING COMBINATIONS;
GERMAN ALLIANCE INS. CO. V. LEWIS, 233 U.S. 389, RATE REGULATIONS;
MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S. 219, WORKMEN'S COMPENSATION
ACT; LA TOURETTE V. MCMASTER, 248 U.S. 465, LICENSING OF BROKERS;
NATIONAL UNION FIRE INS. CO. V. WANBERG, 260 U.S. 71, LIMITING THE TIME
FOR REJECTION OF HAIL INSURANCE POLICIES; MERCHANTS MUTUAL AUTOMOBILE
INS. CO. V. SMART, 267 U.S. 126, REGULATION OF LIABILITY UNDER
INDEMNITY POLICIES; AETNA INSURANCE CO. V. HYDE, 275 U.S. 440, RATE
REGULATIONS; O'GORMAN & YOUNG V. HARTFORD FIRE INS. CO., 282 U.S. 251,
REGULATION OF AGENTS' COMMISSIONS; HARDWARE DEALERS MUTUAL FIRE INS.
CO. V. GLIDDEN CO., 284 U.S. 151, PRESCRIBING COMPULSORY ARBITRATION
PROVISIONS; LIFE & CASUALTY INS. CO. V. MCCRAY, 291 U.S. 566,
ADDITIONAL RECOVERY FOR FAILURE TO PAY ON DEMAND; OSBORN V. OZLIN, 310
U.S. 53, REQUIRING PARTICIPATION BY RESIDENT AGENTS; HOOPESTON CANNING
CO. V. CULLEN, 318 U.S. 313, REGULATION OF RECIPROCAL INSURANCE
ASSOCIATIONS; STATE FARM MUTUAL AUTOMOBILE INS. CO. V. DUEL, 324 U.S.
154, RESERVE REQUIREMENTS; ROBERTSON V. CALIFORNIA, 328 U.S. 440,
LICENSING OF BROKERS; DANIEL V. FAMILY SECURITY LIFE INS. CO., 336 U.S.
220, SEPARATION OF LIFE INSURANCE AND UNDERTAKING BUSINESSES. 

MR. JUSTICE BLACK WOULD DISMISS THE APPEAL ON THE GROUND THAT THE
CONSTITUTIONAL QUESTIONS ARE FRIVOLOUS. 
..END :








WOODWARD V. UNITED STATES, 341 U.S. 112 


NO. 476.  ARGUED APRIL 11, 1951.  - DECIDED APRIL 23, 1951.  - 185 F.2D
134, REVERSED. 


A BROTHER BY ADOPTION IS A PERMISSIBLE BENEFICIARY UNDER SEC. 602(G)
OF THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940.  PP. 112-113. 

WOODWARD V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

PER CURIAM. 

PETITIONER BROUGHT THIS ACTION AGAINST THE UNITED STATES TO SECURE
THE PROCEEDS OF A NATIONAL SERVICE LIFE INSURANCE POLICY TAKEN OUT BY
EVELYN HAIZLIP, A MEMBER OF THE WOMEN'S ARMY CORPS.  BEFORE INSURED'S
DEATH IN 1945, PETITIONER, DESCRIBED BY INSURED AS HER "BROTHER," HAD
BEEN DESIGNATED AS BENEFICIARY.  THE HUSBAND OF THE INSURED WAS
INTERPLEADED AS A CONFLICTING CLAIMANT.  IF PETITIONER, WHO WAS
INSURED'S BROTHER BY VIRTUE OF AN ADOPTION DECREE, IS NOT WITHIN THE
PERMISSIBLE CLASS OF BENEFICIARIES UNDER SEC. 602(G) OF THE NATIONAL
SERVICE LIFE INSURANCE ACT OF 1940* , THE HUSBAND IS ENTITLED TO THE
PROCEEDS IN THIS CASE. 

*"THE INSURANCE SHALL BE PAYABLE ONLY TO A WIDOW, WIDOWER, CHILD  ...
, PARENT, BROTHER OR SISTER OF THE INSURED.  THE INSURED SHALL HAVE
THE RIGHT TO DESIGNATE THE BENEFICIARY OR BENEFICIARIES OF THE
INSURANCE, BUT ONLY WITHIN THE CLASSES HEREIN PROVIDED,  ...  "  54
STAT. 1008, 1010, AS AMENDED, 38 U.S.C. SEC. 802(G). 

THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT WHICH HAD HELD THAT
AN ADOPTED BROTHER WAS NOT A PERMISSIBLE BENEFICIARY UNDER SEC.
602(G).  185 F.2D 134(C.A.8TH CIR. 1950).  SEE ALSO THE PRIOR OPINION
OF THAT COURT IN THIS PROCEEDING, 167 F.2D 774(C.A.8TH CIR. 1948).  THE
COURT OF APPEALS FOR THE THIRD CIRCUIT HAD REACHED A DIRECTLY CONTRARY
CONCLUSION UNDER SIMILAR CIRCUMSTANCES.  CARPENTER V. UNITED STATES,
168 F.2D 369(C.A. 3D CIR. 1948).  OUR GRANT OF CERTIORARI WAS LIMITED
TO THE QUESTION WHETHER A BROTHER BY ADOPTION IS WITHIN THE PERMISSIBLE
CLASS OF BENEFICIARIES UNDER SEC. 602(G) OF THE NATIONAL SERVICE LIFE
INSURANCE ACT OF 1940.  340 U.S. 929(1951). 

WE HAVE EXAMINED THE ACT, ITS LEGISLATIVE HISTORY AND RELATED
STATUTORY PROVISIONS AND HAVE CONSIDERED THE VARIOUS INFERENCES DRAWN
FROM THE LEGISLATIVE MATERIALS BY COUNSEL.  THE SHORT OF THE MATTER IS
THAT CONGRESS HAS NOT EXPRESSED ITSELF IN REGARD TO THE QUESTION BEFORE
US.  IN RESOLVING THE CONFLICT OF DECISIONS, WE MUST DETERMINE WHETHER
THE WORD "BROTHER," AS USED IN THIS FEDERAL STATUTE, RESTRICTS THE
POLICYHOLDER'S CHOICE OF BENEFICIARIES TO BROTHERS OF THE BLOOD.  WE
ARE PERSUADED BY THE POLICY AGAINST DRAWING SUCH A DISTINCTION IN THE
FAMILY RELATIONSHIP.  CONTEMPORANEOUS LEGAL TREATMENT OF ADOPTED
CHILDREN AS THOUGH BORN INTO THE FAMILY IS A MANIFESTATION OF THAT
POLICY.  SEE CARPENTER V. UNITED STATES, SUPRA; MCDONALD V. UNITED
STATES, 91 F.SUPP.  163(D.C.D. MASS. 1950).  CONSEQUENTLY, WE HOLD THAT
A BROTHER BY ADOPTION IS A PERMISSIBLE BENEFICIARY UNDER SEC. 602(G) OF
THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940.  REVERSED. 
..END :
















GERENDE V. ELECTION BOARD, 341 U.S. 56 


NO. 577.  ARGUED APRIL 9, 1951.  - DECIDED APRIL 12, 1951.  - MD. - , 78
A.2D 660, AFFIRMED. 


A DECISION BY THE HIGHEST COURT OF MARYLAND UPHOLDING THE VALIDITY OF
A MARYLAND LAW, CONSTRUED AS REQUIRING THAT, IN ORDER FOR A CANDIDATE
FOR PUBLIC OFFICE IN THAT STATE TO OBTAIN A PLACE ON THE BALLOT, HE
MUST MAKE OATH THAT HE IS NOT ENGAGED "IN ONE WAY OR ANOTHER IN THE
ATTEMPT TO OVERTHROW THE GOVERNMENT BY FORCE OR VIOLENCE," AND THAT HE
IS NOT KNOWINGLY A MEMBER OF AN ORGANIZATION ENGAGED IN SUCH AN
ATTEMPT, IS HERE AFFIRMED ON THE UNDERSTANDING THAT AN AFFIDAVIT IN
THOSE TERMS FULLY SATISFIES THE REQUIREMENT.  PP. 56-57. 

GERENDE V. BOARD OF SUPERVISORS OF ELECTIONS OF BALTIMORE. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

PER CURIAM. 

THIS IS AN APPEAL FROM A DECISION OF THE COURT OF APPEALS OF THE
STATE OF MARYLAND THE EFFECT OF WHICH IS TO DENY THE APPELLANT A PLACE
ON THE BALLOT FOR A MUNICIPAL ELECTION IN THE CITY OF BALTIMORE ON THE
GROUND THAT SHE HAS REFUSED TO FILE AN AFFIDAVIT REQUIRED BY STATE
LAW.  MD. LAWS 1949, C. 86, SEC. 15.   - MD. - , 78 A.2D 660.  THE
SCOPE OF THE STATE LAW WAS PASSED ON IN SHUB V. SIMPSON, - MD. - , 76
A.2D 332.  WE READ THIS DECISION TO HOLD THAT TO OBTAIN A PLACE ON A
MARYLAND BALLOT A CANDIDATE NEED ONLY MAKE OATH THAT HE IS NOT A PERSON
WHO IS ENGAGED "IN ONE WAY OR ANOTHER IN THE ATTEMPT TO OVERTHROW THE
GOVERNMENT BY FORCE OR VIOLENCE," AND THAT HE IS NOT KNOWINGLY A MEMBER
OF AN ORGANIZATION ENGAGED IN SUCH AN ATTEMPT.   - MD. AT - , 76 A.2D
AT 338.  AT THE BAR OF THIS COURT THE ATTORNEY GENERAL OF THE STATE OF
MARYLAND DECLARED THAT HE WOULD ADVISE THE PROPER AUTHORITIES TO ACCEPT
AN AFFIDAVIT IN THESE TERMS AS SATISFYING IN FULL THE STATUTORY
REQUIREMENT.  UNDER THESE CIRCUMSTANCES AND WITH THIS UNDERSTANDING,
THE JUDGMENT OF THE MARYLAND COURT OF APPEALS IS AFFIRMED. 

MR. JUSTICE REED CONCURS IN THE RESULT. 
..END :













UNITED STATES V. ALLIED OIL CORP., 341 U.S. 1 


NO. 364.  ARGUED MARCH 6, 1951.  - DECIDED APRIL 9, 1951.  - 183 F.2D
453, REVERSED. 


1.  IN ACTIONS BROUGHT BY THE ADMINISTRATOR UNDER SEC. 205(E) OF THE
EMERGENCY PRICE CONTROL ACT OF 1942 TO RECOVER DAMAGES FROM SELLERS WHO
SOLD COMMODITIES AT OVERCEILING PRICES, WHICH ACTIONS WERE PENDING WHEN
PRICE CONTROLS WERE TERMINATED, THE SUBSTITUTION OF THE UNITED STATES
(RATHER THAN THE ADMINISTRATOR'S SUCCESSOR) AS THE PARTY PLAINTIFF WAS
AUTHORIZED BY EXECUTIVE ORDERS NOS. 9841 AND 9842.  PP. 2-4. 

2.  SUCH AUTHORIZATION WAS WITHIN THE POWER OF THE PRESIDENT.  PP. 4
5. 

UNITED STATES V. ALLIED OIL CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

ORDERS OF THE DISTRICT COURT DISMISSING THE ACTIONS IN THESE CASES AS
ABATED WERE AFFIRMED BY THE COURT OF APPEALS.  183 F.2D 453.  THIS
COURT GRANTED CERTIORARI.  340 U.S. 895.  REVERSED, P. 5. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AMENDED, AUTHORIZED THE PRICE ADMINISTRATOR UNDER CERTAIN CIRCUMSTANCES
TO INSTITUTE DAMAGE ACTIONS AGAINST SELLERS OF COMMODITIES WHO CHARGED
MORE THAN PRESCRIBED CEILING PRICES.  FN1 PURSUANT TO THIS SECTION, THE
CONSOLIDATED CASES NOW BEFORE US WERE BROUGHT IN THE DISTRICT COURT BY
THE ADMINISTRATOR IN HIS OWN NAME "FOR AND ON BEHALF OF THE UNITED
STATES," AND WERE PROPERLY PENDING THERE ON APRIL 23, 1947.  FN2  ON
THAT DAY THE PRESIDENT, IN CONNECTION WITH THE TERMINATION OF PRICE
CONTROLS, PROMULGATED EXECUTIVE ORDERS NOS. 9841 AND 9842:  FN3  NO.
9841, AMONG OTHER THINGS, TRANSFERRED VARIOUS PRICE ADMINISTRATION
FUNCTIONS TO THE SECRETARY OF COMMERCE; NO. 9842, SO FAR AS HERE
MATERIAL, AUTHORIZED THE ATTORNEY GENERAL TO CONDUCT CERTAIN SEC.
205(E) LITIGATION "IN THE NAME OF THE UNITED STATES OR OTHERWISE AS
PERMITTED BY LAW  ...  "  IN VIEW OF THESE ORDERS THE ATTORNEY GENERAL
PROMPTLY MOVED TO SUBSTITUTE THE UNITED STATES AS PARTY PLAINTIFF IN
THE PRESENT PROCEEDINGS.  ALTHOUGH THE DISTRICT JUDGE GRANTED THE
MOTION, HE DISMISSED THE COMPLAINTS IN 1950 ON THE GROUND THAT THERE
HAD BEEN AN IMPROPER SUBSTITUTION BECAUSE THE SUITS COULD NOT BE
MAINTAINED IN THE NAME OF THE UNITED STATES.  FN4  THE COURT OF APPEALS
AFFIRMED.  183 F.2D 453.  IT HELD THAT THE PRESIDENT IN HIS EXECUTIVE
ORDERS DID NOT INTEND TO AUTHORIZE CONDUCT OF SEC. 205(E) ACTIONS IN
THE NAME OF THE UNITED STATES.  A BELIEF THAT THE PRESIDENT HAD NO
POWER TO DO SO LED THE COURT TO THIS CONCLUSION.  TO RESOLVE THE
CONFLICT BETWEEN THE DECISION AND THOSE FROM OTHER CIRCUITS,  FN5  WE
GRANTED CERTIORARI.  340 U.S. 895. 

WE HOLD THAT IT WAS ERROR TO CONSTRUE THE EXECUTIVE ORDERS AS NOT
ALLOWING MAINTENANCE OF THESE SUITS IN THE NAME OF THE UNITED STATES. 
IT IS TRUE THAT ORDER NO. 9841 WHICH TRANSFERRED VARIOUS OPA FUNCTIONS
TO THE SECRETARY OF COMMERCE EMPOWERED THE SECRETARY TO "INSTITUTE,
MAINTAIN, OR DEFEND IN HIS OWN NAME CIVIL PROCEEDINGS IN ANY COURT  ...
, RELATING TO THE MATTERS TRANSFERRED TO HIM, INCLUDING ANY SUCH
PROCEEDINGS PENDING ON THE EFFECTIVE DATE OF THE TRANSFER  ...."  FN6
BUT THIS PROVISION DEMONSTRATES NO PURPOSE TO VEST EXCLUSIVE POWER IN
THE SECRETARY TO MAINTAIN ALL SEC. 205(E) ENFORCEMENT ACTIONS.  BY ITS
EXPRESS TERMS IT IS MADE SUBJECT TO EXECUTIVE ORDER 9842  FN7  WHICH
DIRECTS THE ATTORNEY GENERAL TO "COORDINATE, CONDUCT, INITIATE,
MAINTAIN OR DEFEND" LITIGATION AGAINST VIOLATORS OF PRICE CONTROL "IN
THE NAME OF THE UNITED STATES OR OTHERWISE AS PERMITTED BY LAW  ...  "
FN8  ALL INTERESTED GOVERNMENT AGENCIES HAVE CONSTRUED THE TWO ORDERS
TOGETHER AS AUTHORIZING THE ATTORNEY GENERAL TO CARRY ON SEC. 205(E)
ENFORCEMENT CASES AND TO DO SO IN THE NAME OF THE UNITED STATES.  THE
EMERGENCY COURT OF APPEALS AND OTHER COURTS OF APPEAL HAVE TAKEN THE
SAME VIEW.  FN9  WE BELIEVE THAT SUCH A READING OF THE ORDERS IS THE
MOST REASONABLE CONSTRUCTION OF THE LANGUAGE EMPLOYED. 

THE SUBSTITUTION OF THE UNITED STATES IN THESE CASES THEREFORE WAS
PROPER UNLESS, AS THE COURT OF APPEALS THOUGHT, THE PRESIDENT LACKED
POWER TO AUTHORIZE IT. THE VIEW BELOW WAS THAT SEC. 205(E) OF THE PRICE
CONTROL ACT PERMITTED ENFORCEMENT SUITS TO BE BROUGHT ONLY IN THE NAME
OF THE PRICE ADMINISTRATOR, OR, WHEN THE BULK OF HIS DUTIES WERE
TRANSFERRED TO THE SECRETARY OF COMMERCE, IN THE NAME OF THE LATTER. 
SUCH A CONCLUSION, HOWEVER, IS CERTAINLY NOT COMPELLED BY THE SECTION
WHICH PROVIDES MERELY FOR THE BRINGING OF ACTIONS BY "THE ADMINISTRATOR
...  ON BEHALF OF THE UNITED STATES  ...  "  THERE CAN BE NO QUESTION
BUT THAT THE PRESIDENT AS A STEP IN THE WINDING-UP PROCESS HAD POWER TO
TRANSFER ANY OR ALL OF THE PRICE ADMINISTRATION FUNCTIONS TO THE
ATTORNEY GENERAL.  FLEMING V. MOHAWK CO., 331 U.S. 111, 113-119. 
ACCORDINGLY, EXECUTIVE ORDER 9842 COULD LAWFULLY DELEGATE THE CONTROL
AND DIRECTION OF THE PRESENT ACTIONS TO THAT OFFICIAL.  MOREOVER,
NOTHING IN SEC. 205(E) PREVENTS THE ATTORNEY GENERAL, WHO IS
CUSTOMARILY CHARGED WITH REPRESENTING THE GOVERNMENT'S INTERESTS IN
COURT, FROM FOLLOWING HIS NORMAL PROCEDURE OF MAINTAINING ENFORCEMENT
SUITS IN THE NAME OF THE UNITED STATES ITSELF.  FN10  NO UNFAIRNESS TO
THE DEFENDANTS WILL RESULT.  REGARDLESS OF CAPTIONS, THE ISSUES IN
THESE CASES COULD NOT CHANGE AND THE REAL PARTY-IN-INTEREST PLAINTIFF
HAS ALWAYS BEEN THE SAME.  CF. UNITED STATES V. REMUND, 330 U.S. 539,
542-543.  THE HANDLING OF THIS LITIGATION IN THE NAME OF THE UNITED
STATES IS A FAIR AND ORDERLY METHOD FOR CARRYING OUT THE CONGRESSIONAL
MANDATE TO WIND UP THE OPA AFFAIRS.  THESE CASES SHOULD NOT HAVE BEEN
DISMISSED.  FN11  REVERSED. 

FN1  56 STAT. 33, AS AMENDED, 58 STAT. 640, 50 U.S.C. APP. SEC.
925(E):  "IF  ...  THE BUYER EITHER FAILS TO INSTITUTE AN ACTION  ...
WITHIN THIRTY DAYS FROM THE DATE OF THE OCCURRENCE OF THE VIOLATION OR
IS NOT ENTITLED FOR ANY REASON TO BRING THE ACTION, THE ADMINISTRATOR
MAY INSTITUTE SUCH ACTION ON BEHALF OF THE UNITED STATES  ...  " 

FN2  ACTUALLY, ONE OF THESE SIX CONSOLIDATED ACTIONS WAS INSTITUTED
"FOR AND ON BEHALF OF THE UNITED STATES" IN THE NAME OF PHILIP B.
FLEMING, ADMINISTRATOR OF THE OFFICE OF TEMPORARY CONTROLS AFTER HE HAD
BECOME THE SUCCESSOR TO THE PRICE ADMINISTRATOR.  ON APRIL 23, 1947,
ALL SIX SUITS WERE PROPERLY PENDING IN FLEMING'S NAME.  SEE FLEMING V.
MOHAWK CO., 331 U.S. 111, 113-119.  THE MANNER IN WHICH HE BECAME THE
SUCCESSOR OF THE PRICE ADMINISTRATOR IS DETAILED BY THE COURT OF
APPEALS IN ITS OPINION BELOW.  UNITED STATES V. ALLIED OIL CORP., 183
F.2D 453. 

FN3  12 FED. REG. 2645, 2646. 

FN4  THE RULING WAS THAT THE SECRETARY OF COMMERCE WAS THE REAL PARTY
IN-INTEREST PLAINTIFF AND THAT THE ACTIONS HAD ABATED FOR FAILURE TO
SUBSTITUTE THE SECRETARY WITHIN SIX MONTHS AS REQUIRED BY RULE 25(D),
FED. RULES CIV. PROC. 

FN5 FLEMING V. GOODWIN, 165 F.2D 334; UNITED STATES V. KOIKE, 164
F.2D 155; NORTHWESTERN LBR.  & SHINGLE CO. V. UNITED STATES, 170 F.2D
692. 

FN6  EXECUTIVE ORDER NO. 9841, SEC. 402 PROVIDES:  "FUNCTIONS UNDER
THE EMERGENCY PRICE CONTROL ACT OF 1942, AS AMENDED, TRANSFERRED UNDER
THE PROVISIONS OF THIS ORDER SHALL BE DEEMED TO INCLUDE AUTHORITY ON
THE PART OF EACH OFFICER TO WHOM SUCH FUNCTIONS ARE TRANSFERRED
HEREUNDER TO INSTITUTE, MAINTAIN, OR DEFEND IN HIS OWN NAME CIVIL
PROCEEDINGS IN ANY COURT (INCLUDING THE EMERGENCY COURT OF APPEALS),
RELATING TO THE MATTERS TRANSFERRED TO HIM, INCLUDING ANY SUCH
PROCEEDINGS PENDING ON THE EFFECTIVE DATE OF THE TRANSFER OF ANY SUCH
FUNCTION UNDER THIS ORDER.  THE PROVISIONS OF THIS PARAGRAPH SHALL BE
SUBJECT TO THE PROVISIONS OF THE EXECUTIVE ORDER ENTITLED 'CONDUCT OF
CERTAIN LITIGATION ARISING UNDER WARTIME LEGISLATION,' (ORDER NO. 9842)
ISSUED ON THE DATE OF THIS ORDER  ...  " 

FN7  SEE EXECUTIVE ORDER NO. 9841, SEC. 402, NOTE 6, SUPRA. 

FN8  EXECUTIVE ORDER NO. 9842 PROVIDES:  "1.  THE ATTORNEY GENERAL IS
AUTHORIZED AND DIRECTED, IN THE NAME OF THE UNITED STATES OR OTHERWISE
AS PERMITTED BY LAW, TO COORDINATE, CONDUCT, INITIATE, MAINTAIN OR
DEFEND: 

     .         .         .         .         . 

"(B)  LITIGATION AGAINST VIOLATORS OF REGULATIONS, SCHEDULES OR
ORDERS RELATING TO MAXIMUM PRICES PERTAINING TO ANY COMMODITY WHICH HAS
BEEN REMOVED FROM PRICE CONTROL  ... " 

PRICE CONTROLS HAD BEEN LIFTED ON THE COMMODITIES INVOLVED IN THE
PRESENT ACTIONS PRIOR TO THE PROMULGATION OF EXECUTIVE ORDERS NOS. 9841
AND 9842. 

FN9  HAL-MAR DRESS CO. V. CLARK, 165 F.2D 222, AND CASES CITED NOTE
5, SUPRA. 

FN10  CF. UNITED STATES V. CALIFORNIA, 332 U.S. 19, 27-28; UNITED
STATES V. SAN JACINTO TIN CO., 125 U.S. 273, 279. 

FN11  RESPONDENTS HAVE CONTENDED IN THEIR BRIEF THAT BY VIRTUE OF 28
U.S.C. SEC. 2105 THE ORDERS OF THE DISTRICT COURT DISMISSING THESE
ACTIONS AS ABATED WERE NOT SUBJECT TO REVIEW.  THIS CONTENTION IS
UNTENABLE IN VIEW OF THE RECENT DECISION IN SNYDER V. BUCK, 340 U.S.
15, 21-22. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :














AMERICAN FIRE & CAS. CO. V. FINN, 341 U.S. 6 


NO. 252.  ARGUED DECEMBER 7, 1950.  - DECIDED APRIL 9, 1951.  - 181 F.2D
845, REVERSED. 


IN A SUIT BROUGHT IN A TEXAS COURT BY A RESIDENT OF THAT STATE TO
RECOVER FOR A LOSS BY FIRE, THE COMPLAINT NAMED AS DEFENDANTS TWO
FOREIGN INSURANCE COMPANIES (ONE OF WHICH IS THE PETITIONER HERE) AND A
RESIDENT AGENT OF THE COMPANIES.  THE SINGLE WRONG FOR WHICH RELIEF WAS
SOUGHT WAS THE FAILURE TO COMPENSATE FOR THE LOSS, AND THE THREE
DEFENDANTS WERE JOINED BECAUSE OF UNCERTAINTY AS TO WHO WAS LIABLE. 
AFTER SEPTEMBER 1, 1948, PETITIONER REMOVED THE CASE TO THE FEDERAL
DISTRICT COURT, WHICH RENDERED JUDGMENT AGAINST PETITIONER AND ABSOLVED
THE OTHER DEFENDANTS.  PETITIONER THEREAFTER MOVED TO VACATE THE
JUDGMENT AND TO REMAND THE CASE TO THE STATE COURT.  HELD: 

1.  IN THE LIGHT OF THE ALLEGATIONS OF THE COMPLAINT IN THIS CASE,
SEPARATE AND INDEPENDENT CAUSES OF ACTION WERE NOT STATED; AND, UNDER
28 U.S.C. SEC. 1441(C), THERE WAS NO RIGHT OF REMOVAL OF THE CASE FROM
THE STATE COURT TO THE FEDERAL COURT.  PP. 9-16. 

(A)  IN ADOPTING THE "SEPARATE AND INDEPENDENT CLAIM OR CAUSE OF
ACTION" TEST FOR REMOVABILITY, 28 U.S.C. SEC. 1441(C)(1948), CONGRESS
INTENDED TO AVOID THE DIFFICULTIES EXPERIENCED IN DETERMINING THE
MEANING OF THE FORMER PROVISION OF 28 U.S.C. SEC. 71 AND TO LIMIT
REMOVAL FROM STATE COURTS.  PP. 9-10. 

(B)  A SEPARABLE CONTROVERSY IS NO LONGER AN ADEQUATE GROUND FOR
REMOVAL UNLESS IT ALSO CONSTITUTES A "SEPARATE AND INDEPENDENT CLAIM OR
CAUSE OF ACTION."  PP. 11-12. 

(C)  THE PHRASE "CAUSE OF ACTION," AS USED IN SEC. 1441, MUST BE
GIVEN A MEANING WHICH WILL ACCOMPLISH THE CONGRESSIONAL PURPOSE OF
LIMITING AND SIMPLIFYING REMOVAL.  PP. 12-13. 

(D)  WHERE A PLAINTIFF SEEKS RELIEF FOR A SINGLE WRONG, ARISING FROM
AN INTERLOCKED SERIES OF TRANSACTIONS, THERE IS NO "SEPARATE AND
INDEPENDENT CLAIM OR CAUSE OF ACTION" UNDER 28 U.S.C. SEC. 1441(C). 
PP. 13-14. 

2.  BECAUSE OF THE PRESENCE OF A CITIZEN OF TEXAS ON EACH SIDE, THE
DISTRICT COURT WOULD NOT HAVE HAD ORIGINAL JURISDICTION OF THIS SUIT,
EITHER AS STATED IN THE COMPLAINT OR IN THE POSTURE OF THE CASE AT THE
TIME OF JUDGMENT.  THEREFORE, THE JUDGMENT OF THE DISTRICT COURT MUST
BE VACATED.  PP. 16-19. 

(A)  TO PERMIT A FEDERAL TRIAL COURT TO ENTER JUDGMENT IN A CASE
REMOVED WITHOUT RIGHT FROM A STATE COURT WHERE THE FEDERAL COURT COULD
NOT HAVE ORIGINAL JURISDICTION OF THE SUIT, EVEN IN ITS POSTURE AT THE
TIME OF JUDGMENT, WOULD BY THE ACT OF THE PARTIES WORK A WRONGFUL
EXTENSION OF FEDERAL JURISDICTION AND GIVE DISTRICT COURTS POWER THAT
CONGRESS HAS DENIED THEM.  PP. 17-18. 

AMERICAN FIRE & CASUALTY CO. V. FINN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

IN A SUIT REMOVED BY PETITIONER FROM A STATE COURT, THE DISTRICT
COURT ENTERED JUDGMENT AGAINST PETITIONER.  THE DISTRICT COURT'S DENIAL
OF PETITIONER'S SUBSEQUENT MOTION TO VACATE THE JUDGMENT AND REMAND THE
CASE TO THE STATE COURT WAS AFFIRMED BY THE COURT OF APPEALS.  181 F.2D
845.  THIS COURT GRANTED CERTIORARI.  340 U.S. 849.  REVERSED AND
REMANDED, P. 19. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE PROCEEDINGS PRESENT FOR DETERMINATION THE PROPER FEDERAL RULE
TO BE FOLLOWED ON A MOTION BY A DEFENDANT TO VACATE A UNITED STATES
DISTRICT COURT JUDGMENT, OBTAINED BY A PLAINTIFF AFTER REMOVAL FROM A
STATE COURT BY DEFENDANT, AND TO REMAND THE SUIT TO THE STATE COURT. 
PETITIONER, THE MOVANT, URGES THAT 28 U.S.C. SEC. 1441 DID NOT PERMIT
THIS REMOVAL AND THEREFORE THE DISTRICT COURT WAS WITHOUT JURISDICTION
TO RENDER THE JUDGMENT WHICH RESPONDENT, THE PLAINTIFF BELOW, SEEKS TO
RETAIN.  THE ISSUE AROSE IN THIS WAY: 

PETITIONER, THE AMERICAN FIRE AND CASUALTY COMPANY, A FLORIDA
CORPORATION, AND ITS CODEFENDANT, THE INDIANA LUMBERMENS MUTUAL
INSURANCE COMPANY, AN INDIANA CORPORATION, REMOVED, IN ACCORDANCE WITH
28 U.S.C. SEC. 1446, A SUIT BROUGHT BY RESPONDENT FINN IN A TEXAS STATE
COURT AGAINST THE TWO CORPORATIONS AND AN INDIVIDUAL, REISS, LOCAL
AGENT OF BOTH CORPORATIONS AND A RESIDENT OF TEXAS.  THE SUIT WAS FOR A
FIRE LOSS ON TEXAS PROPERTY SUFFERED BY RESPONDENT, A RESIDENT OF
TEXAS.  RESPONDENT TRIED TO HAVE THE CASE REMANDED BEFORE TRIAL BUT WAS
UNSUCCESSFUL.  AFTER SPECIAL ISSUES WERE FOUND BY THE JURY, JUDGMENT
WAS ENTERED AGAINST PETITIONER FOR THE AMOUNT OF INSURANCE CLAIMED AND
COSTS, AND IN FAVOR OF THE OTHER TWO DEFENDANTS.  THE DISTRICT COURT
DENIED THE MOTION TO VACATE THE JUDGMENT AND THE COURT OF APPEALS
AFFIRMED.  181 F.2D 845.  THE LATTER COURT CONCLUDED THERE WERE CAUSES
OF ACTION AGAINST THE FOREIGN INSURANCE COMPANIES "SEPARATE AND
INDEPENDENT" FROM THAT STATED AGAINST THE RESIDENT INDIVIDUAL.  SINCE
THE CAUSES AGAINST THE COMPANIES WOULD HAVE BEEN REMOVABLE IF SUED ON
ALONE, THE ENTIRE SUIT WAS REMOVABLE.  28 U.S.C. SEC. 1441(C).  THAT
RULING REQUIRED CONSIDERATION OF THE CHANGES CONCERNING REMOVAL MADE BY
SEC. 1441(C), WHICH SUPERSEDED 28 U.S.C. (1946 ED.)  SEC.  71.  THE
COURT OF APPEALS SAID: 

"THE DIFFERENCE, IF ANY, BETWEEN SEPARABLE CONTROVERSIES UNDER THE
OLD STATUTE AND SEPARATE AND INDEPENDENT CLAIMS UNDER THE NEW ONE IS IN
DEGREE, NOT IN KIND.  IT IS DIFFICULT TO DISTINGUISH BETWEEN THE TWO
CONCEPTS, BUT IT IS NOT NECESSARY TO ATTEMPT IT IN A CASE LIKE THIS,
WHICH WOULD BE REMOVABLE UNDER EITHER STATUTE."  181 F.2D 846. 

CONSIDERATION OF THE RULING ON THE MOTION TO VACATE THE JUDGMENT
REQUIRES A DETERMINATION OF WHETHER THE SUIT CONTAINED SEPARATE AND
INDEPENDENT CAUSES OF ACTION UNDER SEC. 1441(C), AND, IF THE CONCLUSION
IS THAT IT DID NOT, A RULING ON THE EFFECT OF A JUDGMENT AFTER A
REMOVAL WITHOUT RIGHT, INITIATED BY THE PARTY AGAINST WHOM THE JUDGMENT
WAS ULTIMATELY RENDERED.  AS PROMPT, ECONOMICAL AND SOUND
ADMINISTRATION OF JUSTICE DEPENDS TO A LARGE DEGREE UPON DEFINITE AND
FINALLY ACCEPTED PRINCIPLES GOVERNING IMPORTANT AREAS OF LITIGATION,
SUCH AS THE RESPECTIVE JURISDICTIONS OF FEDERAL AND STATE COURTS, WE
GRANTED CERTIORARI.  340 U.S. 849.  SEE ALSO MAYFLOWER INDUSTRIES V.
THOR CORPORATION, 184 F.2D 537; BENTLEY V. HALLIBURTON OIL WELL
CEMENTING CO., 174 F.2D 788. 

                              I. 

THE REMOVAL TOOK PLACE AFTER SEPTEMBER 1, 1948, THE EFFECTIVE DATE OF
THE REVISION OF THE LAWS RELATING TO JUDICIAL PROCEDURE.  62 STAT.
992.  THE FORMER PROVISION GOVERNING REMOVAL, 28 U.S.C. (1946 ED.) 
SEC.  71, READ: 

"AND WHEN IN ANY SUIT MENTIONED IN THIS SECTION THERE SHALL BE A
CONTROVERSY WHICH IS WHOLLY BETWEEN CITIZENS OF DIFFERENT STATES, AND
WHICH CAN BE FULLY DETERMINED AS BETWEEN THEM, THEN EITHER ONE OR MORE
OF THE DEFENDANTS ACTUALLY INTERESTED IN SUCH CONTROVERSY MAY REMOVE
SAID SUIT INTO THE DISTRICT COURT OF THE UNITED STATES FOR THE PROPER
DISTRICT." 

THE NEW SECTION, 28 U.S.C. SEC. 1441(C), STATES: 

"(C)  WHENEVER A SEPARATE AND INDEPENDENT CLAIM OR CAUSE OF ACTION,
WHICH WOULD BE REMOVABLE IF SUED UPON ALONE, IS JOINED WITH ONE OR MORE
OTHERWISE NON-REMOVABLE CLAIMS OR CAUSES OF ACTION, THE ENTIRE CASE MAY
BE REMOVED AND THE DISTRICT COURT MAY DETERMINE ALL ISSUES THEREIN, OR,
IN ITS DISCRETION, MAY REMAND ALL MATTERS NOT OTHERWISE WITHIN ITS
ORIGINAL JURISDICTION." 

ONE PURPOSE OF CONGRESS IN ADOPTING THE "SEPARATE AND INDEPENDENT
CLAIM OR CAUSE OF ACTION" TEST FOR REMOVABILITY BY SEC. 1441(C) OF THE
1948 REVISION IN LIEU OF THE PROVISION FOR REMOVAL OF 28 U.S.C. (1946
ED.)  SEC.  71, WAS BY SIMPLIFICATION TO AVOID THE DIFFICULTIES
EXPERIENCED IN DETERMINING THE MEANING OF THAT PROVISION.  FN1  ANOTHER
AND IMPORTANT PURPOSE WAS TO LIMIT REMOVAL FROM STATE COURTS.  FN2
CITIZENS OF DIFFERENT STATES AND FULLY DETERMINABLE BETWEEN THEM.  SUCH
A CONTROVERSY WAS SAID TO BE "SEPARABLE."  THE DIFFICULTIES INHERENT IN
OLD SEC. 71 SHOW PLAINLY IN THE MAJORITY AND CONCURRING OPINIONS IN
PULLMAN CO. V. JENKINS, 305 U.S. 534, 542.  SEE NOTE, 41 HARV. L. REV.
1048.  OFTEN PLAINTIFFS IN STATE ACTIONS JOINED OTHER STATE RESIDENTS
AS DEFENDANTS WITH OUT-OF-STATE DEFENDANTS SO THAT REMOVABLE
CONTROVERSIES WHOLLY BETWEEN CITIZENS OF DIFFERENT STATES WOULD NOT BE
PLEADED.  THE EFFORT FREQUENTLY FAILED, SEE PULLMAN CO. V. JENKINS, AT
538, AND REMOVAL WAS ALLOWED.  OUR CONSIDERATION OF THE MEANING AND
EFFECT OF 28 U.S.C. SEC. 1441(C) SHOULD BE CARRIED OUT IN THE LIGHT OF
THE CONGRESSIONAL INTENTION.  CF. PULLMAN CO. V. JENKINS, SUPRA, AT
547; PHILLIPS V. UNITED STATES, 312 U.S. 246, 250. 

THE CONGRESS, IN THE REVISION, CARRIED OUT ITS PURPOSE TO ABRIDGE THE
RIGHT OF REMOVAL.  FN3 UNDER THE FORMER PROVISION, 28 U.S.C. (1946
ED.)  SEC.  71, SEPARABLE CONTROVERSIES AUTHORIZED REMOVAL OF THE
SUIT.  "CONTROVERSY" HAD LONG BEEN ASSOCIATED IN LEGAL THINKING WITH
"CASE."  IT COVERED ALL DISPUTES THAT MIGHT COME BEFORE FEDERAL COURTS
FOR ADJUDICATION.  IN SEC. 71 THE REMOVABLE "CONTROVERSY" WAS
INTERPRETED AS ANY POSSIBLE SEPARATE SUIT THAT A LITIGANT MIGHT
PROPERLY BRING IN A FEDERAL COURT SO LONG AS IT WAS WHOLLY BETWEEN
CITIZENS OF DIFFERENT STATES.  SO, BEFORE THE REVISION, WHEN A SUIT IN
A STATE COURT HAD SUCH A SEPARABLE FEDERALLY COGNIZABLE CONTROVERSY,
THE ENTIRE SUIT MIGHT BE REMOVED TO THE FEDERAL COURT.  FN4 

A SEPARABLE CONTROVERSY IS NO LONGER AN ADEQUATE GROUND FOR REMOVAL
UNLESS IT ALSO CONSTITUTES A SEPARATE AND INDEPENDENT CLAIM OR CAUSE OF
ACTION.  COMPARE BARNEY V. LATHAM, 103 U.S. 205, 212, WITH THE REVISED
SEC. 1441.  CONGRESS HAS AUTHORIZED REMOVAL NOW UNDER SEC. 1441(C) ONLY
WHEN THERE IS A SEPARATE AND INDEPENDENT CLAIM OR CAUSE OF ACTION.  FN5
OF COURSE, "SEPARATE CAUSE OF ACTION" RESTRICTS REMOVAL MORE THAN
"SEPARABLE CONTROVERSY."  IN A SUIT COVERING MULTIPLE PARTIES OR ISSUES
BASED ON A SINGLE CLAIM, THERE MAY BE ONLY ONE CAUSE OF ACTION AND YET
BE SEPARABLE CONTROVERSIES.  FN6  THE ADDITION OF THE WORD
"INDEPENDENT" GIVES EMPHASIS TO CONGRESSIONAL INTENTION TO REQUIRE MORE
COMPLETE DISASSOCIATION BETWEEN THE FEDERALLY COGNIZABLE PROCEEDINGS
AND THOSE COGNIZABLE ONLY IN STATE COURTS BEFORE ALLOWING REMOVAL. 

THE EFFECTIVENESS OF THE RESTRICTIVE POLICY OF CONGRESS AGAINST
REMOVAL DEPENDS UPON THE MEANING ASCRIBED TO "SEPARATE AND INDEPENDENT
...  CAUSE OF ACTION."  SEC. 1441.  ALTHOUGH "CONTROVERSY" AND "CAUSE
OF ACTION" ARE TREATED AS SYNONYMOUS BY THE COURTS IN SITUATIONS WHERE
THE PRESENT CONSIDERATIONS ARE ABSENT,  FN7  HERE IT IS OBVIOUS
DIFFERENT CONCEPTS ARE INVOLVED.  FN8  WE ARE NOT UNMINDFUL THAT THE
PHRASE "CAUSE OF ACTION" HAS MANY MEANINGS.  FN9  TO ACCOMPLISH ITS
PURPOSE OF LIMITING AND SIMPLIFYING REMOVAL, CONGRESS USED THE PHRASE
"CAUSE OF ACTION" IN AN ACCEPTED MEANING TO OBTAIN THAT RESULT.  BY
INTERPRETATION WE SHOULD NOT DEFEAT THAT PURPOSE. 

IN A SUIT TURNING ON THE MEANING OF "CAUSE OF ACTION," THIS COURT
ANNOUNCED AN ACCEPTED DESCRIPTION.  BALTIMORE S.S. CO. V. PHILLIPS, 274
U.S. 316.  FN10  THIS COURT SAID, P. 321: 

"UPON PRINCIPLE, IT IS PERFECTLY PLAIN THAT THE RESPONDENT SUFFERED
BUT ONE ACTIONABLE WRONG AND WAS ENTITLED TO BUT ONE RECOVERY, WHETHER
HIS INJURY WAS DUE TO ONE OR THE OTHER OF SEVERAL DISTINCT ACTS OF
ALLEGED NEGLIGENCE OR TO A COMBINATION OF SOME OR ALL OF THEM.  IN
EITHER VIEW, THERE WOULD BE BUT A SINGLE WRONGFUL INVASION OF A SINGLE
PRIMARY RIGHT OF THE PLAINTIFF, NAMELY, THE RIGHT OF BODILY SAFETY,
WHETHER THE ACTS CONSTITUTING SUCH INVASION WERE ONE OR MANY, SIMPLE OR
COMPLEX. 

"A CAUSE OF ACTION DOES NOT CONSIST OF FACTS, BUT OF THE UNLAWFUL
VIOLATION OF A RIGHT WHICH THE FACTS SHOW." 

SEE MAGNOLIA PETROLEUM CO. V. HUNT, 320 U.S. 430, 443.  FN11
CONSIDERING THE PREVIOUS HISTORY OF "SEPARABLE CONTROVERSY," THE BROAD
MEANING OF "CAUSE OF ACTION," AND THE CONGRESSIONAL PURPOSE IN THE
REVISION RESULTING IN 28 U.S.C. SEC. 1441(C), WE CONCLUDE THAT WHERE
THERE IS A SINGLE WRONG TO PLAINTIFF, FOR WHICH RELIEF IS SOUGHT,
ARISING FROM AN INTERLOCKED SERIES OF TRANSACTIONS, THERE IS NO
SEPARATE AND INDEPENDENT CLAIM OR CAUSE OF ACTION UNDER SEC. 1441(C). 
FN12 

IN MAKING THIS DETERMINATION WE LOOK TO THE PLAINTIFF'S PLEADING,
WHICH CONTROLS.  PULLMAN CO. V. JENKINS, 305 U.S. 534, 538.  FN13  THE
SINGLE WRONG FOR WHICH RELIEF IS SOUGHT IS THE FAILURE TO PAY
COMPENSATION FOR THE LOSS ON THE PROPERTY.  LIABILITY LAY AMONG THREE
PARTIES, BUT IT WAS UNCERTAIN WHICH ONE WAS RESPONSIBLE.  THEREFORE,
ALL WERE JOINED AS DEFENDANTS IN ONE PETITION.  FIRST, FACTS WERE
STATED THAT MADE THE PETITIONER, AMERICAN FIRE AND CASUALTY COMPANY,
LIABLE.  IT WAS ALLEGED THAT THE COMPANY, THROUGH ITS AGENT REISS,
INSURED THE PROPERTY DESTROYED FOR THE AMOUNT CLAIMED, THAT REISS GAVE
PLAINTIFF CREDIT FOR THE PREMIUM, CONTROLLED HER INSURANCE, AGREED TO
KEEP THE PROPERTY INSURED AT ALL TIMES.  SHE FURTHER ALLEGED THAT THE
COMPANY ISSUED THE POLICY BUT REISS RETAINED THE DOCUMENT IN HIS
POSSESSION AND REFUSED TO DELIVER IT AFTER THE FIRE.  THEN FOLLOWED A
PRAYER FOR JUDGMENT AGAINST THE COMPANY. 

THE NEXT PORTION OF THE COMPLAINT STATED, IN THE ALTERNATIVE, AN
OBLIGATION BY THE INDIANA LUMBERMENS INSURANCE COMPANY TO PAY THE SAME
LOSS.  THE POLICY WITH LUMBERMENS WAS ATTACHED AS AN EXHIBIT, AND
ALLEGATIONS CONCERNING REISS SIMILAR TO THOSE IN THE FIRST PORTION WERE
MADE.  A SECOND PRAYER WAS ADDED FOR RECOVERY AGAINST LUMBERMENS. 

THE LAST PORTION OF THE COMPLAINT, ALTERNATIVE TO BOTH THE PRECEDING,
ALLEGED THAT REISS, AMERICAN FIRE AND CASUALTY COMPANY AND INDIANA
LUMBERMENS INSURANCE COMPANY WERE JOINTLY AND SEVERALLY LIABLE FOR THE
LOSS.  REISS WAS SAID TO BE PLAINTIFF'S INSURANCE BROKER, RESPONSIBLE
FOR KEEPING HER HOUSE INSURED.  PLAINTIFF ALLEGED REISS INSURED HER
PROPERTY WITH LUMBERMENS AND NEVER NOTIFIED HER OF ANY CANCELLATION OR
EXPIRATION.  REISS WAS ALLEGED TO HAVE AGREED LATER TO INSURE HER
PROPERTY WITH AMERICAN, TO HAVE PROMISED AFTER THE FIRE TO DELIVER THE
POLICY, TO HAVE FAILED TO MAKE THE PROMISED DELIVERY.  SHE CLAIMED THAT
REISS WAS RESPONSIBLE FOR "ANYTHING THAT RESULTS IN THE DEFEAT OF HER
RECOVERY ON EITHER ONE OF SAID POLICIES" AND THAT HE WAS "THE DIRECT
CAUSE OF THE CONDITION, OF SAID INSURANCE, AND THE PROXIMATE CAUSE OF
ALL OF PLAINTIFF'S TROUBLES AND CONFUSION."  THE PLEADER THEN
ASSERTED: 

"THAT SUCH ACTS AND CONDUCT ON THE PART OF SAID JOE REISS AS AGENT
FOR THE SAID TWO INSURANCE COMPANIES, RENDERS SAID JOE REISS, AGENT,
THE JOE REISS INSURANCE AGENCY AND THE AMERICAN FIRE AND CASUALTY
INSURANCE COMPANY OF ORLANDO, FLORIDA, AND THE INDIANA LUMBERMENS
MUTUAL INSURANCE COMPANY OF INDIANAPOLIS, INDIANA, JOINTLY AND
SEVERALLY LIABLE FOR THE FULL AMOUNT OF THE DAMAGES THAT PLAINTIFF HAS
SUFFERED BY REASON OF SAID FIRE IN THE AMOUNT OF FIVE THOUSAND
DOLLARS." 

THE PETITION CONCLUDED WITH A PRAYER FOR JOINT AND SEVERAL JUDGMENT
AGAINST ALL THREE DEFENDANTS, BASED ON THE THIRD SET OF ALLEGATIONS. 

THE PAST HISTORY OF REMOVAL OF "SEPARABLE" CONTROVERSIES, THE EFFORT
OF CONGRESS TO CREATE A SURER TEST, AND THE INTENTION OF CONGRESS TO
RESTRICT THE RIGHT OF REMOVAL LEADS US TO THE CONCLUSION THAT SEPARATE
AND INDEPENDENT CAUSES OF ACTION ARE NOT STATED.  THE FACTS IN EACH
PORTION OF THE COMPLAINT INVOLVE REISS, THE DAMAGE COMES FROM A SINGLE
INCIDENT.  THE ALLEGATIONS IN WHICH REISS IS A DEFENDANT INVOLVE
SUBSTANTIALLY THE SAME FACTS AND TRANSACTIONS AS DO THE ALLEGATIONS IN
THE FIRST PORTION OF THE COMPLAINT AGAINST THE FOREIGN INSURANCE
COMPANIES.  IT CANNOT BE SAID THAT THERE ARE SEPARATE AND INDEPENDENT
CLAIMS FOR RELIEF AS SEC. 1441(C) REQUIRES.  THEREFORE, WE CONCLUDE
THERE WAS NO RIGHT TO REMOVAL. 

                                 II. 

THERE ARE CASES WHICH UPHOLD JUDGMENTS IN THE DISTRICT COURTS EVEN
THOUGH THERE WAS NO RIGHT TO REMOVAL.  FN14  IN THOSE CASES THE FEDERAL
TRIAL COURT WOULD HAVE HAD ORIGINAL JURISDICTION OF THE CONTROVERSY HAD
IT BEEN BROUGHT IN THE FEDERAL COURT IN THE POSTURE IT HAD AT THE TIME
OF THE ACTUAL TRIAL OF THE CAUSE OR OF THE ENTRY OF THE JUDGMENT.  THAT
IS, IF THE LITIGATION HAD BEEN INITIATED IN THE FEDERAL COURT ON THE
ISSUES AND BETWEEN THE PARTIES THAT COMPRISED THE CASE AT THE TIME OF
TRIAL OR JUDGMENT, THE FEDERAL COURT WOULD HAVE HAD COGNIZANCE OF THE
CASE.  THIS CIRCUMSTANCE WAS RELIED UPON AS THE FOUNDATION OF THE
HOLDINGS.  FN15  THE DEFENDANT WHO HAD REMOVED THE ACTION WAS HELD TO
BE ESTOPPED FROM PROTESTING THAT THERE WAS NO RIGHT TO REMOVAL.  SINCE
THE FEDERAL COURT COULD HAVE HAD JURISDICTION ORIGINALLY, THE ESTOPPEL
DID NOT ENDOW IT WITH A JURISDICTION IT COULD NOT POSSESS.    IN THIS
CASE, HOWEVER, THE DISTRICT COURT WOULD NOT HAVE HAD ORIGINAL
JURISDICTION OF THE SUIT, AS FIRST STATED IN THE COMPLAINT, BECAUSE OF
THE PRESENCE ON EACH SIDE OF A CITIZEN OF TEXAS.  28 U.S.C. SEC. 1332. 
THE POSTURE OF THIS CASE EVEN AT THE TIME OF JUDGMENT ALSO BARRED
FEDERAL JURISDICTION.  A TEXAS CITIZEN WAS AND REMAINED A PARTY
DEFENDANT.  THE TRIAL COURT JUDGMENT, AFTER DECREEING RECOVERY AGAINST
AMERICAN FIRE AND CASUALTY COMPANY ON THE JURY'S VERDICT, ADDED, OVER
AMERICAN'S OBJECTION, 

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT THE PLAINTIFF TAKE
NOTHING AS AGAINST DEFENDANTS, INDIANA LUMBERMENS MUTUAL INSURANCE
COMPANY AND JOE REISS, INDIVIDUALLY AND DOING BUSINESS AS THE JOE REISS
INSURANCE AGENCY, AND THAT SUCH DEFENDANTS GO HENCE WITHOUT DAY WITH
THEIR COSTS." 

BY THIS DECREE THE MERITS OF THE LITIGATION AGAINST REISS WERE
FINALLY ADJUDICATED.  FN16  THE REQUEST OF RESPONDENT TO DISMISS REISS
AFTER THE JUDGMENT WAS NOT ACTED UPON BY THE TRIAL COURT. 

THE JURISDICTION OF THE FEDERAL COURTS IS CAREFULLY GUARDED AGAINST
EXPANSION BY JUDICIAL INTERPRETATION OR BY PRIOR ACTION OR CONSENT OF
THE PARTIES.  FN17  TO PERMIT A FEDERAL TRIAL COURT TO ENTER A JUDGMENT
IN A CASE REMOVED WITHOUT RIGHT FROM A STATE COURT WHERE THE FEDERAL
COURT COULD NOT HAVE ORIGINAL JURISDICTION OF THE SUIT EVEN IN THE
POSTURE IT HAD AT THE TIME OF JUDGMENT, WOULD BY THE ACT OF THE PARTIES
WORK A WRONGFUL EXTENSION OF FEDERAL JURISDICTION AND GIVE DISTRICT
COURTS POWER THE CONGRESS HAS DENIED THEM. 

THE JUDGMENT OF THE COURT OF APPEALS MUST BE REVERSED AND THE CAUSE
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT
ENTERED AND, IF NO FURTHER STEPS ARE TAKEN BY ANY PARTY TO AFFECT ITS
JURISDICTION,  FN18  TO REMAND THE CASE TO THE DISTRICT COURT OF HARRIS
COUNTY, TEXAS, WITH COSTS AGAINST PETITIONER.  TENNESSEE V. UNION &
PLANTERS' BANK, 152 U.S. 454, 464.  IT IS SO ORDERED. 

FN1  SEE REVISER'S NOTES WITH H.R. REP. NO. 308, 80TH CONG., 1ST
SESS., APRIL 25, 1947, TO ACCOMPANY THE REVISION BILL, H.R. 3214. 
(U.S.C., CONG. SERV., FOR TITLE 28, 1948, PP. 1697, 1699, 1855.)  THE
REVISER'S NOTE IS REPRINTED AT 28 U.S.C. SEC. 1441.  SEE UNITED STATES
V. NATIONAL CITY LINES, 337 U.S. 78, 81. 

FN2  28 U.S.C. SEC. 1441, REVISER'S NOTE: 

"SUBSECTION (C) PERMITS THE REMOVAL OF A SEPARATE CAUSE OF ACTION BUT
NOT OF A SEPARABLE CONTROVERSY UNLESS IT CONSTITUTES A SEPARATE AND
INDEPENDENT CLAIM OR CAUSE OF ACTION WITHIN THE ORIGINAL JURISDICTION
OF UNITED STATES DISTRICT COURTS.  IN THIS RESPECT IT WILL SOMEWHAT
DECREASE THE VOLUME OF FEDERAL LITIGATION." 

CONGRESS HAD ENACTED OTHER RESTRICTIONS ON REMOVAL IN SPECIAL ACTS
SUCH AS THE FEDERAL EMPLOYERS' LIABILITY ACT.  28 U.S.C. (1946 ED.) 
SEC.  71; 28 U.S.C. SEC. 1445. 

FN3  CARE WAS TAKEN TO MAINTAIN OPPORTUNITY FOR STATE TRIAL OF NON
FEDERAL MATTERS. 

28 U.S.C. SEC. 1441, REVISER'S NOTE: 

"RULES 18, 20, AND 23 OF THE FEDERAL RULES OF CIVIL PROCEDURE PERMIT
THE MOST LIBERAL JOINDER OF PARTIES, CLAIMS, AND REMEDIES IN CIVIL
ACTIONS.  THEREFORE THERE WILL BE NO PROCEDURAL DIFFICULTY OCCASIONED
BY THE REMOVAL OF THE ENTIRE ACTION.  CONVERSELY, IF THE COURT SO
DESIRES, IT MAY REMAND TO THE STATE COURT ALL NONREMOVABLE MATTERS." 
SEE MCFADDEN V. GRACE LINE, 82 F.SUPP.  494. 

FN4  BARNEY V. LATHAM, 103 U.S. 205, IS A GOOD ILLUSTRATION.  THIS
COURT HELD THAT THERE WERE SEPARABLE CONTROVERSIES IN A STATE COURT
SUIT AGAINST A LOCAL CORPORATION AND NONRESIDENT INDIVIDUALS FOR AN
ACCOUNTING ON LAND SALES.  ONE GROUP OF SALES WAS BY THE NONRESIDENTS
BEFORE CONVEYANCE TO THE CORPORATION; THE OTHER BY THE CORPORATION
AFTER CONVEYANCE. 

SEE ALSO PULLMAN CO. V. JENKINS, 305 U.S. 534.  THERE A SUIT WAS
INSTITUTED IN A CALIFORNIA COURT FOR DAMAGES FOR A CONDUCTOR'S DEATH
CAUSED BY A DRUNKEN PULLMAN PASSENGER.  THE DEFENDANTS WERE THE
PASSENGER (A CALIFORNIAN), THE RAILROAD (A KENTUCKY CORPORATION,
ALLEGEDLY NEGLIGENT FOR LETTING THE PASSENGER PASS ITS GATES), THE
PULLMAN COMPANY (AN ILLINOIS CORPORATION), AND ITS PORTER (A
CALIFORNIAN), THE LATTER TWO ALLEGEDLY NEGLIGENT FOR LETTING THE
PASSENGER ON THE PULLMAN.  HAD THE PORTER NOT BEEN A CALIFORNIAN, THE
PULLMAN COMPANY COULD HAVE REMOVED ON THE GROUND OF A SEPARABLE
CONTROVERSY BECAUSE NO FACTS WERE ALLEGED AS TO OTHER DEFENDANTS'
NEGLIGENCE UPON WHICH ITS LIABILITY COULD BE PREDICATED.  P. 539. 
"(ALL) PERSONS INTERESTED IN A SEPARABLE CONTROVERSY MUST BE ABLE TO
REMOVE."  DISCUSSED IN MOORE'S COMMENTARY ON THE U.S. JUDICIAL CODE, P.
247. 

FN5  WE THINK THE "CLAIM" SET OUT IN A PETITION STATES THE FACTS UPON
WHICH THE "CAUSE OF ACTION" RESTS.  FOR THE PURPOSE OF REMOVAL, THE
WORDS COVER THE SAME ALLEGATIONS. 

SINCE THE PULLMAN CASE AND THE BARNEY CASE DO NOT CONTAIN SEPARATE
AND INDEPENDENT CAUSES OF ACTION, THEY WOULD NOT NOW BE REMOVABLE UNDER
28 U.S.C. SEC. 1441. 

FN6  SEE NOTE 4, SUPRA. 

FN7  E.G., TOLBERT V. JACKSON, 99 F.2D 513, 514(A VALUABLE CASE); DES
MOINES ELEVATOR & GRAIN CO. V. UNDERWRITERS' GRAIN ASSN., 63 F.2D 103;
NICHOLS V. CHESAPEAKE & OHIO R. CO., 195 F. 913. 

FN8  SEE NOTE 1, SUPRA. 

FN9  UNITED STATES V. MEMPHIS COTTON OIL CO., 288 U.S. 62, 67-69;
BEMIS BRO. BAG CO. V. UNITED STATES, 289 U.S. 28, 33; HURN V. OURSLER,
289 U.S. 238, 247. 

FN10  THERE A SAILOR FILED A LIBEL IN ADMIRALTY AND RECOVERED FOR
NEGLIGENCE IN FAILING TO PROVIDE A SAFE PLACE TO WORK, IN FAILING TO
USE REASONABLE CARE TO AVOID STRIKING LIBELLANT, FOR UNSEAWORTHINESS,
INCOMPETENCY OF OFFICERS AND FAILURE TO INSTRUCT PLAINTIFF, AN
INEXPERIENCED SAILOR, IN HIS DUTIES.  LATER HE SOUGHT FURTHER DAMAGES
FOR THE SAME ACCIDENT, FOR NEGLIGENCE OF OFFICERS AND EMPLOYEES IN THE
OPERATION OF THE VESSEL.  RECOVERY WAS DENIED IN THE SECOND SUIT ON THE
GROUND THAT IT WAS THE SAME CAUSE OF ACTION AS THE FIRST. 

FN11  IN CHASE SECURITIES CORP. V. DONALDSON, 325 U.S. 304, 311, WE
ACCEPTED A LIKE STATE RULE: "THE STATE COURTS SEEM TO HAVE TREATED THE
COMPLAINT AS SETTING UP SEVERAL BASES FOR A SINGLE COMMON-LAW CAUSE OF
ACTION IN TORT WHICH HAD BEEN REMANDED FOR RETRIAL AT THE TIME THE NEW
STATUTE WAS ENACTED.  WE MUST REGARD IT IN THAT SAME LIGHT."  SO IN
HURN V. OURSLER, 289 U.S. 238, 246: "THE BILL ALLEGES THE VIOLATION OF
A SINGLE RIGHT, NAMELY, THE RIGHT TO PROTECTION OF THE COPYRIGHTED
PLAY.  AND IT IS THIS VIOLATION WHICH CONSTITUTES THE CAUSE OF ACTION. 
INDEED, THE CLAIMS OF INFRINGEMENT AND UNFAIR COMPETITION SO PRECISELY
REST UPON IDENTICAL FACTS AS TO BE LITTLE MORE THAN THE EQUIVALENT OF
DIFFERENT EPITHETS TO CHARACTERIZE THE SAME GROUP OF CIRCUMSTANCES. 
THE PRIMARY RELIEF SOUGHT IS AN INJUNCTION TO PUT AN END TO AN
ESSENTIALLY SINGLE WRONG, HOWEVER DIFFERENTLY CHARACTERIZED, NOT TO
ENJOIN DISTINCT WRONGS CONSTITUTING THE BASIS FOR INDEPENDENT CAUSES OF
ACTION."  SEE BEHRENS V. SKELLY, 173 F.2D 715, 719; COPE V. ANDERSON,
331 U.S. 461, 466. 

FN12  SEE A DISCUSSION OF CAUSE OF ACTION IN CODE PLEADING.  CLARK ON
CODE PLEADING (2D ED.), 137 ET SEQ. 

FN13  MOORE'S COMMENTARY ON THE U.S. JUDICIAL CODE, SUPRA, PP. 251
252:  "BUT WHERE THE PLAINTIFF JOINS TWO OR MORE DEFENDANTS TO RECOVER
DAMAGES FOR ONE INJURY, AND EVEN THOUGH HE CHARGES THEM WITH JOINT AND
SEVERAL LIABILITY OR ONLY SEVERAL LIABILITY, OR CHARGES THEM WITH
LIABILITY IN THE ALTERNATIVE, THERE IS NO JOINDER OF SEPARATE AND
INDEPENDENT CAUSES OF ACTION WITHIN THE MEANING OF SEC. 1441(C).  AT
MOST A SEPARABLE CONTROVERSY IS PRESENTED WHERE SEVERAL OR ALTERNATIVE
LIABILITY IS ALLEGED, AND IS NO LONGER THE BASIS FOR REMOVAL."  COMPARE
THE OPINION IN BENTLEY V. HALLIBURTON OIL WELL CEMENTING CO., 81
F.SUPP.  323, WITH THE REVERSING OPINION IN 174 F.2D 788. 

FN14 BAGGS V. MARTIN, 179 U.S. 206; TOLEDO, ST. L. & W.R. CO. V.
PERENCHIO, 205 F. 472; HANDLEY-MACK CO. V. GODCHAUX SUGAR CO., 2 F.2D
435; BAILEY V. TEXAS CO., 47 F.2D 153. 

FN15  E.G., IN BAGGS V. MARTIN, 179 U.S. 206, THE FEDERAL COURT HAD
JURISDICTION OVER THE PROPERTY IN THE HANDS OF THE RECEIVER AND IT WAS
NOT A PROCEEDING WHEREIN "MERE CONSENT, OR EVEN VOLUNTARY ACTION BY THE
PARTIES,  ...  (CONFERRED) JURISDICTION UPON A COURT WHICH WOULD NOT
HAVE POSSESSED IT WITHOUT SUCH CONSENT OR ACTION."  P. 209. 

FN16  SEE BURTON-LINGO CO. V. LAY, 142 S.W.2D 448; SPANN BROTHERS
AUTO SUPPLY CO. V. MILES, 135 S.W.2D 1016, 1017. 

FN17  PEOPLE'S BANK V. CALHOUN, 102 U.S. 256, 260-261:  "IT NEEDS NO
CITATION OF AUTHORITIES TO SHOW THAT THE MERE CONSENT OF PARTIES CANNOT
CONFER UPON A COURT OF THE UNITED STATES THE JURISDICTION TO HEAR AND
DECIDE A CASE.  IF THIS WERE ONCE CONCEDED, THE FEDERAL COURTS WOULD
BECOME THE COMMON RESORT OF PERSONS WHO HAVE NO RIGHT, EITHER UNDER THE
CONSTITUTION OR THE LAWS OF THE UNITED STATES, TO LITIGATE IN THOSE
COURTS." 

MANSFIELD, C. & L.M.R. CO. V. SWAN, 111 U.S. 379, 383, QUOTING WITH
APPROVAL AN EXCERPT FROM THE DISSENT IN THE DRED SCOTT CASE: 

"IT IS TRUE  ...  AS A GENERAL RULE, THAT THE COURT WILL NOT ALLOW A
PARTY TO RELY ON ANYTHING AS CAUSE FOR REVERSING A JUDGMENT, WHICH WAS
FOR HIS ADVANTAGE.  IN THIS, WE FOLLOW AN ANCIENT RULE OF THE COMMON
LAW.  BUT SO CAREFUL WAS THAT LAW OF THE PRESERVATION OF THE COURSE OF
ITS COURTS, THAT IT MADE AN EXCEPTION OUT OF THAT GENERAL RULE, AND
ALLOWED A PARTY TO ASSIGN FOR ERROR THAT WHICH WAS FOR HIS ADVANTAGE,
IF IT WERE A DEPARTURE BY THE COURT ITSELF FROM ITS SETTLED COURSE OF
PROCEDURE." 

ALSO SEE, E.G., WABASH R. CO. V. BARBOUR, 73 F. 513, 516; CAPRON V.
VAN NOORDEN, 2 CRANCH 126. 

FN18  ISSUES NOT RAISED IN THE RECORDS OR BRIEFS ARE NOT PASSED UPON,
SUCH AS THE PROPRIETY OF THE DISTRICT COURT'S ALLOWING, AFTER VACATION
OF JUDGMENT, A MOTION TO DISMISS REISS, THE RESIDENT DEFENDANT; OR THE
ASSOCIATED PROBLEM:  WHETHER, IF SUCH A DISMISSAL IS ALLOWED, A NEW
JUDGMENT CAN BE ENTERED ON THE OLD VERDICT WITHOUT A NEW TRIAL.  THESE
QUESTIONS AND LIKE MATTERS ARE FOR THE CONSIDERATION AND DECISION OF
THE DISTRICT COURT.  SEE, E.G., DOLLAR S.S. LINES V. MERZ, 68 F.2D 594;
INTERNATIONAL LADIES' GARMENT WORKERS' UNION V. DONNELLY GARMENT CO.,
121 F.2D 561. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MINTON CONCUR, DISSENTING. 

I THINK PETITIONER, HAVING ASKED FOR AND OBTAINED THE REMOVAL OF THE
CASE TO THE FEDERAL DISTRICT COURT, AND HAVING LOST ITS CASE IN THAT
COURT, IS NOW ESTOPPED FROM HAVING IT REMANDED TO THE STATE COURT. 

MERE IRREGULARITY IN THE REMOVAL MAY BE WAIVED WHERE THE SUIT MIGHT
ORIGINALLY HAVE BEEN BROUGHT IN THE FEDERAL DISTRICT COURT.  BAGGS V.
MARTIN, 179 U.S. 206.  FN1  THAT WAS A SUIT AGAINST A RECEIVER WHICH
COULD HAVE BEEN INSTITUTED IN THE FEDERAL COURT.  IT WAS REMOVED THERE
BY THE RECEIVER AND JUDGMENT RENDERED AGAINST HIM.  THE COURT DID NOT
STOP TO INQUIRE WHETHER THERE HAD BEEN A COMPLIANCE WITH THE REMOVAL
PROVISIONS, HOLDING THAT UNDER THOSE CIRCUMSTANCES IT DID NOT LIE IN
THE MOUTH OF THE RECEIVER TO DENY THE JURISDICTION HE HAD SOUGHT.  AND
SEE TOLEDO, ST. L. & W.R. CO. V. PERENCHIO, 205 F. 472; HANDLEY-MACK
CO. V. GODCHAUX SUGAR CO., 2 F.2D 435, 437; BAILEY V. TEXAS CO., 47
F.2D 153, 155. 

THE SUIT AGAINST PETITIONER COULD HAVE BEEN BROUGHT ORIGINALLY IN THE
FEDERAL DISTRICT COURT, SINCE THERE WAS DIVERSITY OF CITIZENSHIP AND
THE CLAIM UNDER THE FIRE INSURANCE POLICY WAS OVER $3,000.  THE
REQUIREMENTS OF DIVERSITY OF CITIZENSHIP AND JURISDICTIONAL AMOUNT MAY
NOT, OF COURSE, BE WAIVED.  BUT A DIFFERENT PROVISION OF THE STATUTE IS
INVOLVED HERE.  IT IS SEC. 1441(C) OF THE JUDICIAL CODE WHICH READS: 

"WHENEVER A SEPARATE AND INDEPENDENT CLAIM OR CAUSE OF ACTION, WHICH
WOULD BE REMOVABLE IF SUED UPON ALONE, IS JOINED WITH ONE OR MORE
OTHERWISE NON-REMOVABLE CLAIMS OR CAUSES OF ACTION, THE ENTIRE CASE MAY
BE REMOVED AND THE DISTRICT COURT MAY DETERMINE ALL ISSUES THEREIN, OR,
IN ITS DISCRETION, MAY REMAND ALL MATTERS NOT OTHERWISE WITHIN ITS
ORIGINAL JURISDICTION."  28 U.S.C. SEC. 1441(C). 

THE ARGUMENT IS THAT THE SUIT AGAINST REISS, THE INDIVIDUAL DEFENDANT,
COULD NOT BE REMOVED SINCE BOTH HE AND THE PLAINTIFF WERE RESIDENTS OF
TEXAS, AND THAT THE SUITS AGAINST THE TWO NONRESIDENT CORPORATIONS
COULD NOT BE REMOVED BECAUSE THE CLAIM ASSERTED AGAINST THEM WAS NOT
"SEPARATE AND INDEPENDENT." 

BUT THE JUDGMENT SOUGHT TO BE REVIEWED HERE WAS RENDERED BY THE
DISTRICT COURT ONLY AGAINST PETITIONER WHO COULD HAVE BEEN SUED THERE
ORIGINALLY  FN2  AND WHO INVOKED THE JURISDICTION OF THE DISTRICT
COURT.  AS THE COURT OBSERVED IN THE CLOSELY ANALOGOUS CASE OF BAILEY
V. TEXAS CO., SUPRA, P. 155, "THE RESULTING SITUATION IS EQUIVALENT TO
INITIATING AN ACTION IN THE DISTRICT COURT IN WHICH THE DEFENDANT
APPEARS."  FN3  I THINK IT IS ABUSIVE OF THE INTERESTS OF JUSTICE WHEN
THE CHALLENGE NOW MADE IS RAISED TO THE DIGNITY OF A JURISDICTIONAL
QUESTION.  ANY REQUIREMENT OF SEC. 1441(C) THAT WAS NOT MET IN THIS
CASE ROSE TO NO LEVEL HIGHER THAN AN IRREGULARITY, SO FAR AS PETITIONER
IS CONCERNED.  BOTH REISS AND THE OTHER NONRESIDENT DEFENDANT HAVE BEEN
DISMISSED FROM THE CASE.  THE ONLY JUDGMENT BEFORE THE COURT IS ONE
WHICH SATISFIES THE REQUIREMENTS OF ORIGINAL JURISDICTION.  PETITIONER
THE ONE WHO INVOKED FEDERAL JURISDICTION AND AS A RESULT SUFFERED THE
CONSEQUENCES OF THIS JUDGMENT - SHOULD NOT NOW BE HEARD TO COMPLAIN. 
BAGGS V. MARTIN, SUPRA, SHOULD GOVERN THIS CASE.    FN1  AS NOTED IN
BAILEY V. TEXAS CO., 47 F.2D 153, 155, BAGGS V. MARTIN DISPLACES THE
VIEW EARLIER EXPRESSED BY THE COURT IN TORRENCE V. SHEDD, 144 U.S. 527,
AND MARTIN V. SNYDER, 148 U.S. 663. 

FN2  WE HAVE HERE NO JOINT LIABILITY BETWEEN A NONRESIDENT DEFENDANT
AND A RESIDENT DEFENDANT, AS WAS THE SITUATION IN CHICAGO, B. & Q.R.
CO. V. WILLARD, 220 U.S. 413, 418.  AND SEE ALABAMA SOUTHERN R. CO. V.
THOMPSON, 200 U.S. 206; RUPP V. WHEELING & L.E.R. CO., 121 F. 825.  THE
REMEDY SOUGHT AGAINST REISS WAS ALTERNATIVE TO THE REMEDY SOUGHT
AGAINST PETITIONER. 

FN3  IN THAT CASE THE PARTIES WHO COULD NOT HAVE BEEN BROUGHT TO THE
DISTRICT COURT BY REMOVAL WERE AFTER REMOVAL DISMISSED OUT OF THE CASE
AND JUDGMENT WAS RENDERED AGAINST A DEFENDANT WHO COULD HAVE BEEN SUED
IN THE DISTRICT COURT. 
..END :





















DYER V. SIMS, 341 U.S. 22 


NO. 147.  ARGUED DECEMBER 5, 1950.  - DECIDED APRIL 9, 1951.  - 134 W.
VA. - , 58 S.E.2D 766, REVERSED. 


WITH THE CONSENT OF CONGRESS UNDER THE COMPACT CLAUSE OF THE FEDERAL
CONSTITUTION, WEST VIRGINIA AND SEVEN OTHER STATES ENTERED INTO A
COMPACT TO CONTROL POLLUTION IN THE OHIO RIVER SYSTEM.  THEY CREATED A
COMMISSION CONSISTING OF REPRESENTATIVES OF EACH OF THE EIGHT STATES
AND THE UNITED STATES, AND AGREED TO DELEGATE CERTAIN POWERS TO IT AND
TO APPROPRIATE FUNDS FOR ITS ADMINISTRATIVE EXPENSES.  THE WEST
VIRGINIA LEGISLATURE APPROVED THE COMPACT AND APPROPRIATED FUNDS TO
DEFRAY WEST VIRGINIA'S SHARE OF THE EXPENSES.  IN A MANDAMUS PROCEEDING
TO COMPEL THE STATE AUDITOR TO ISSUE A WARRANT FOR PAYMENT OF THESE
EXPENSES, THE STATE SUPREME COURT DENIED RELIEF.  IT FOUND THAT THE
STATE LEGISLATION CONSTITUTED AN UNLAWFUL DELEGATION OF LEGISLATIVE
POWER AND VIOLATED THE DEBT LIMITATION PROVISION OF ART. X, SEC. 4 OF
THE STATE CONSTITUTION.  HELD: 

1.  THIS COURT HAS FINAL POWER TO PASS UPON THE MEANING AND VALIDITY
OF COMPACTS BETWEEN STATES.  P. 28. 

2.  AN AGREEMENT ENTERED INTO BETWEEN STATES BY THOSE WHO ALONE HAVE
POLITICAL AUTHORITY TO SPEAK FOR A STATE CANNOT BE NULLIFIED
UNILATERALLY, OR GIVEN FINAL MEANING BY ANY ORGAN OF ONE OF THE
CONTRACTING STATES.  P. 28. 

3.  THIS COURT IS FREE TO EXAMINE DETERMINATIONS OF LAW BY STATE
COURTS WHERE AN INTERSTATE COMPACT BRINGS IN ISSUE THE RIGHTS OF OTHER
STATES AND THE UNITED STATES.  KENTUCKY V. INDIANA, 281 U.S. 163;
HINDERLIDER V. LA PLATA CO., 304 U.S. 92.  PP. 28-30. 

4.  THE FACT THAT THE QUESTIONS AS TO THE COMPACT ARE BEFORE THIS
COURT ON A WRIT OF CERTIORARI RATHER THAN BY WAY OF AN ORIGINAL ACTION
BROUGHT BY A STATE DOES NOT AFFECT THE POWER OF THIS COURT TO DECIDE
THOSE QUESTIONS.  P. 30. 

5.  WEST VIRGINIA HAD AUTHORITY UNDER HER CONSTITUTION TO ENTER INTO
A COMPACT WHICH INVOLVES ONLY SUCH DELEGATION OF POWER TO AN INTERSTATE
AGENCY AS THE OHIO RIVER COMPACT PRESENTS.  PP. 30-32. 

6.  THE OBLIGATION OF THE STATE UNDER THE COMPACT IS NOT IN CONFLICT
WITH THE DEBT LIMITATION PROVISION OF ART. X, SEC. 4 OF THE STATE
CONSTITUTION.  P. 32. 

WEST VIRGINIA EX REL. DYER ET AL. V. SIMS, STATE AUDITOR. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

IN A MANDAMUS PROCEEDING, THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA HELD THAT STATE LEGISLATION AUTHORIZING THE STATE'S
PARTICIPATION IN A COMPACT WITH OTHER STATES VIOLATED THE STATE
CONSTITUTION.  134 W. VA. - , 58 S.E.2D 766.  THIS COURT GRANTED
CERTIORARI.  340 U.S. 807.  REVERSED AND REMANDED, P. 32. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

AFTER EXTENDED NEGOTIATIONS EIGHT STATES ENTERED INTO A COMPACT TO
CONTROL POLLUTION IN THE OHIO RIVER SYSTEM.  SEE OHIO RIVER VALLEY
WATER SANITATION COMPACT, 54 STAT. 752.  ILLINOIS, INDIANA, KENTUCKY,
NEW YORK, OHIO, PENNSYLVANIA, VIRGINIA AND WEST VIRGINIA RECOGNIZED
THAT THEY WERE FACED WITH ONE OF THE PROBLEMS OF GOVERNMENT THAT ARE
DEFINED BY NATURAL RATHER THAN POLITICAL BOUNDARIES.  ACCORDINGLY, THEY
PLEDGED THEMSELVES TO COOPERATE IN MAINTAINING WATERS IN THE OHIO RIVER
BASIN IN A SANITARY CONDITION THROUGH THE ADMINISTRATIVE MECHANISM OF
THE OHIO RIVER VALLEY WATER SANITATION COMMISSION, CONSISTING OF THREE
MEMBERS FROM EACH STATE AND THREE REPRESENTING THE UNITED STATES. 

THE HEART OF THE COMPACT IS ARTICLE VI.  THIS PROVIDES THAT SEWAGE
DISCHARGED INTO BOUNDARY STREAMS OR STREAMS FLOWING FROM ONE STATE INTO
ANOTHER "SHALL BE SO TREATED, WITHIN A TIME REASONABLE FOR THE
CONSTRUCTION OF THE NECESSARY WORKS, AS TO PROVIDE FOR SUBSTANTIALLY
COMPLETE REMOVAL OF SETTLEABLE SOLIDS, AND THE REMOVAL OF NOT LESS THAN
FORTY-FIVE PER CENT (45%) OF THE TOTAL SUSPENDED SOLIDS; PROVIDED THAT,
IN ORDER TO PROTECT THE PUBLIC HEALTH OR TO PRESERVE THE WATERS FOR
OTHER LEGITIMATE PURPOSES,  ...  IN SPECIFIC INSTANCES SUCH HIGHER
DEGREE OF TREATMENT SHALL BE USED AS MAY BE DETERMINED TO BE NECESSARY
BY THE COMMISSION AFTER INVESTIGATION, DUE NOTICE AND HEARING." 
INDUSTRIAL WASTES ARE TO BE TREATED "TO SUCH DEGREE AS MAY BE
DETERMINED TO BE NECESSARY BY THE COMMISSION AFTER INVESTIGATION, DUE
NOTICE AND HEARING."  SEWAGE AND INDUSTRIAL WASTES DISCHARGED INTO
STREAMS LOCATED WHOLLY WITHIN ONE STATE ARE TO BE TREATED "TO THAT
EXTENT, IF ANY, WHICH MAY BE NECESSARY TO MAINTAIN SUCH WATERS IN A
SANITARY AND SATISFACTORY CONDITION AT LEAST EQUAL TO THE CONDITION OF
THE WATERS OF THE INTERSTATE STREAM IMMEDIATELY ABOVE THE CONFLUENCE." 

ARTICLE IX PROVIDES THAT THE COMMISSION MAY, AFTER NOTICE AND
HEARING, ISSUE ORDERS FOR COMPLIANCE ENFORCEABLE IN THE STATE AND
FEDERAL COURTS.  IT FURTHER PROVIDES:  "NO SUCH ORDER SHALL GO INTO
EFFECT UNLESS AND UNTIL IT RECEIVES THE ASSENT OF AT LEAST A MAJORITY
OF THE COMMISSIONERS FROM EACH OF NOT LESS THAN A MAJORITY OF THE
SIGNATORY STATES; AND NO SUCH ORDER UPON A MUNICIPALITY, CORPORATION,
PERSON OR ENTITY IN ANY STATE SHALL GO INTO EFFECT UNLESS AND UNTIL IT
RECEIVES THE ASSENT OF NOT LESS THAN A MAJORITY OF THE COMMISSIONERS
FROM SUCH STATE." 

BY ARTICLE X THE STATES ALSO AGREE "TO APPROPRIATE FOR THE SALARIES,
OFFICE AND OTHER ADMINISTRATIVE EXPENSES, THEIR PROPER PROPORTION OF
THE ANNUAL BUDGET AS DETERMINED BY THE COMMISSION AND APPROVED BY THE
GOVERNORS OF THE SIGNATORY STATES  ...  " 

THE PRESENT CONTROVERSY AROSE BECAUSE OF CONFLICTING VIEWS BETWEEN
OFFICIALS OF WEST VIRGINIA REGARDING THE RESPONSIBILITY OF WEST
VIRGINIA UNDER THE COMPACT. 

THE LEGISLATURE OF THAT STATE RATIFIED AND APPROVED THE COMPACT ON
MARCH 11, 1939.  W. VA. ACTS 1939, C. 38.  CONGRESS GAVE ITS CONSENT ON
JULY 11, 1940, 54 STAT. 752, AND UPON ADOPTION BY ALL THE SIGNATORY
STATES THE COMPACT WAS FORMALLY EXECUTED BY THE GOVERNOR OF WEST
VIRGINIA ON JUNE 30, 1948.  AT ITS 1949 SESSION THE WEST VIRGINIA
LEGISLATURE APPROPRIATED $12,250 AS THE STATE'S CONTRIBUTION TO THE
EXPENSES OF THE COMMISSION FOR THE FISCAL YEAR BEGINNING JULY 1, 1949. 
W. VA. ACTS 1949, C. 9, ITEM 93.  RESPONDENT SIMS, THE AUDITOR OF THE
STATE, REFUSED TO ISSUE A WARRANT UPON ITS TREASURY FOR PAYMENT OF THIS
APPROPRIATION.  TO COMPEL HIM TO ISSUE IT, THE WEST VIRGINIA
COMMISSIONERS TO THE COMPACT COMMISSION AND THE MEMBERS OF THE WEST
VIRGINIA STATE WATER COMMISSION INSTITUTED THIS ORIGINAL MANDAMUS
PROCEEDING IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA.  THE COURT
DENIED RELIEF ON THE MERITS, 134 W. VA. - , 58 S.E.2D 766, AND WE
BROUGHT THE CASE HERE, 340 U.S. 807, BECAUSE QUESTIONS OF OBVIOUSLY
IMPORTANT PUBLIC INTEREST ARE RAISED. 

THE WEST VIRGINIA COURT FOUND THAT THE "SOLE QUESTION" BEFORE IT WAS
THE VALIDITY OF THE ACT OF 1939 APPROVING WEST VIRGINIA'S ADHERENCE TO
THE COMPACT.  IT FOUND THAT ACT INVALID IN THAT (1) THE COMPACT WAS
DEEMED TO DELEGATE WEST VIRGINIA'S POLICE POWER TO OTHER STATES AND TO
THE FEDERAL GOVERNMENT, AND (2) IT WAS DEEMED TO BIND FUTURE
LEGISLATURES TO MAKE APPROPRIATIONS FOR THE CONTINUED ACTIVITIES OF THE
SANITATION COMMISSION AND THUS TO VIOLATE ART. X, SEC. 4 OF THE WEST
VIRGINIA CONSTITUTION. 

BRIEFS FILED ON BEHALF OF THE UNITED STATES AND OTHER STATES, AS
AMICI, INVITE THE COURT TO CONSIDER FAR-REACHING ISSUES RELATING TO THE
COMPACT CLAUSE OF THE UNITED STATES CONSTITUTION.  ART. 1, SEC. 10, CL.
3.  THE UNITED STATES URGES THAT THE COMPACT BE SO READ AS TO ALLOW ANY
SIGNATORY STATE TO WITHDRAW FROM ITS OBLIGATIONS AT ANY TIME. 
PENNSYLVANIA, OHIO, INDIANA, ILLINOIS, KENTUCKY AND NEW YORK CONTEND
THAT THE COMPACT CLAUSE PRECLUDES ANY STATE FROM LIMITING ITS POWER TO
ENTER INTO A COMPACT TO WHICH CONGRESS HAS CONSENTED.  WE MUST NOT BE
TEMPTED BY THESE INVITING VISTAS.  WE NEED NOT GO BEYOND THE ISSUES ON
WHICH THE WEST VIRGINIA COURT FOUND THE COMPACT NOT BINDING ON THAT
STATE.  THAT THESE ARE ISSUES WHICH GIVE THIS COURT JURISDICTION TO
REVIEW THE STATE COURT PROCEEDING, 28 U.S.C. SEC. 1257, NEEDS NO
DISCUSSION AFTER DELAWARE RIVER COMM'N V. COLBURN, 310 U.S. 419, 427. 

CONTROL OF POLLUTION IN INTERSTATE STREAMS MIGHT, ON OCCASION, BE AN
APPROPRIATE SUBJECT FOR NATIONAL LEGISLATION.  COMPARE OKLAHOMA V.
ATKINSON CO., 313 U.S. 508.  BUT, WITH PRESCIENCE, THE FRAMERS LEFT THE
STATES FREE TO SETTLE REGIONAL CONTROVERSIES IN DIVERSE WAYS.  SOLUTION
OF THE PROBLEM UNDERLYING THIS CASE MAY BE ATTEMPTED DIRECTLY BY THE
AFFECTED STATES THROUGH CONTENTIOUS LITIGATION BEFORE THIS COURT. 
MISSOURI V. ILLINOIS, 180 U.S. 208, 200 U.S. 496; NEW YORK V. NEW
JERSEY, 256 U.S. 296.  ADJUDICATION HERE OF CONFLICTING STATE INTERESTS
AFFECTING STREAM POLLUTION DOES NOT REST UPON THE LAW OF A PARTICULAR
STATE.  THIS COURT DECIDES SUCH CONTROVERSIES ACCORDING TO "PRINCIPLES
IT MUST HAVE POWER TO DECLARE."  MISSOURI V. ILLINOIS, SUPRA, 200 U.S.
AT 519.  BUT THE DELICACY OF INTERSTATE RELATIONSHIPS AND THE INHERENT
LIMITATIONS UPON THIS COURT'S ABILITY TO DEAL WITH MULTIFARIOUS LOCAL
PROBLEMS HAVE NATURALLY LED TO EXACTING STANDARDS OF JUDICIAL
INTERVENTION AND HAVE INHIBITED THE FORMULATION OF A CODE FOR DEALING
WITH SUCH CONTROVERSIES.  AS MR. JUSTICE HOLMES PUT IT:  "BEFORE THIS
COURT OUGHT TO INTERVENE THE CASE SHOULD BE OF SERIOUS MAGNITUDE,
CLEARLY AND FULLY PROVED, AND THE PRINCIPLE TO BE APPLIED SHOULD BE ONE
WHICH THE COURT IS PREPARED DELIBERATELY TO MAINTAIN AGAINST ALL
CONSIDERATIONS ON THE OTHER SIDE."  MISSOURI V. ILLINOIS, SUPRA, 200
U.S. AT 521. 

INDEED, SO AWKWARD AND UNSATISFACTORY IS THE AVAILABLE LITIGIOUS
SOLUTION FOR THESE PROBLEMS THAT THIS COURT DEEMED IT APPROPRIATE TO
EMPHASIZE THE PRACTICAL CONSTITUTIONAL ALTERNATIVE PROVIDED BY THE
COMPACT CLAUSE.  EXPERIENCE LED US TO SUGGEST THAT A PROBLEM SUCH AS
THAT INVOLVED HERE IS "MORE LIKELY TO BE WISELY SOLVED BY COOPERATIVE
STUDY AND BY CONFERENCE AND MUTUAL CONCESSION ON THE PART OF
REPRESENTATIVES OF THE STATES SO VITALLY INTERESTED IN IT THAN BY
PROCEEDINGS IN ANY COURT HOWEVER CONSTITUTED."  NEW YORK V. NEW JERSEY,
SUPRA, AT 313.  THE SUGGESTION HAS HAD FRUITFUL RESPONSE. 

THE GROWING INTERDEPENDENCE OF REGIONAL INTERESTS, CALLING FOR
REGIONAL ADJUSTMENTS, HAS BROUGHT EXTENSIVE USE OF COMPACTS.  A COMPACT
IS MORE THAN A SUPPLE DEVICE FOR DEALING WITH INTERESTS CONFINED WITHIN
A REGION.  THAT IT IS ALSO A MEANS OF SAFEGUARDING THE NATIONAL
INTEREST IS WELL ILLUSTRATED IN THE COMPACT NOW UNDER REVIEW.  NOT ONLY
WAS CONGRESSIONAL CONSENT REQUIRED, AS FOR ALL COMPACTS; DIRECT
PARTICIPATION BY THE FEDERAL GOVERNMENT WAS PROVIDED IN THE PRESIDENT'S
APPOINTMENT OF THREE MEMBERS OF THE COMPACT COMMISSION.  ART. IV; ART.
XI, SEC. 3. 

BUT A COMPACT IS AFTER ALL A LEGAL DOCUMENT.  THOUGH THE
CIRCUMSTANCES OF ITS DRAFTING ARE LIKELY TO ASSURE GREAT CARE AND
DELIBERATION, ALL AVOIDANCE OF DISPUTES AS TO SCOPE AND MEANING IS NOT
WITHIN HUMAN GIFT.  JUST AS THIS COURT HAS POWER TO SETTLE DISPUTES
BETWEEN STATES WHERE THERE IS NO COMPACT, IT MUST HAVE FINAL POWER TO
PASS UPON THE MEANING AND VALIDITY OF COMPACTS.  IT REQUIRES NO
ELABORATE ARGUMENT TO REJECT THE SUGGESTION THAT AN AGREEMENT SOLEMNLY
ENTERED INTO BETWEEN STATES BY THOSE WHO ALONE HAVE POLITICAL AUTHORITY
TO SPEAK FOR A STATE CAN BE UNILATERALLY NULLIFIED, OR GIVEN FINAL
MEANING BY AN ORGAN OF ONE OF THE CONTRACTING STATES.  A STATE CANNOT
BE ITS OWN ULTIMATE JUDGE IN A CONTROVERSY WITH A SISTER STATE.  TO
DETERMINE THE NATURE AND SCOPE OF OBLIGATIONS AS BETWEEN STATES,
WHETHER THEY ARISE THROUGH THE LEGISLATIVE MEANS OF COMPACT OR THE
"FEDERAL COMMON LAW" GOVERNING INTERSTATE CONTROVERSIES (HINDERLIDER V.
LA PLATA CO., 304 U.S. 92, 110), IS THE FUNCTION AND DUTY OF THE
SUPREME COURT OF THE NATION.  OF COURSE EVERY DEFERENCE WILL BE SHOWN
TO WHAT THE HIGHEST COURT OF A STATE DEEMS TO BE THE LAW AND POLICY OF
ITS STATE, PARTICULARLY WHEN RECONDITE OR UNIQUE FEATURES OF LOCAL LAW
ARE URGED.  DEFERENCE IS ONE THING; SUBMISSION TO A STATE'S OWN
DETERMINATION OF WHETHER IT HAS UNDERTAKEN AN OBLIGATION, WHAT THAT
OBLIGATION IS, AND WHETHER IT CONFLICTS WITH A DISABILITY OF THE STATE
TO UNDERTAKE IT IS QUITE ANOTHER. 

THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA IS, FOR
EXCLUSIVELY STATE PURPOSES, THE ULTIMATE TRIBUNAL IN CONSTRUING THE
MEANING OF HER CONSTITUTION.  TWO PRIOR DECISIONS OF THIS COURT MAKE
CLEAR, HOWEVER, THAT WE ARE FREE TO EXAMINE DETERMINATIONS OF LAW BY
STATE COURTS IN THE LIMITED FIELD WHERE A COMPACT BRINGS IN ISSUE THE
RIGHTS OF OTHER STATES AND THE UNITED STATES. 

KENTUCKY V. INDIANA, 281 U.S. 163, DEALT WITH A COMPACT TO BUILD A
BRIDGE ACROSS THE OHIO RIVER.  IN AN ORIGINAL ACTION BROUGHT BEFORE
THIS COURT, INDIANA DEFENDED ON THE GROUND THAT SHE SHOULD NOT BE
COMPELLED TO PERFORM UNTIL THE INDIANA COURTS DECIDED, IN A PENDING
CASE, WHETHER HER OFFICIALS HAD BEEN AUTHORIZED TO ENTER INTO THE
COMPACT.  MR. CHIEF JUSTICE HUGHES, SPEAKING FOR A UNANIMOUS COURT,
DISMISSED THE ARGUMENT:  "WHERE THE STATES THEMSELVES ARE BEFORE THIS
COURT FOR THE DETERMINATION OF A CONTROVERSY BETWEEN THEM, NEITHER CAN
DETERMINE THEIR RIGHTS INTER SESE, AND THIS COURT MUST PASS UPON EVERY
QUESTION ESSENTIAL TO SUCH A DETERMINATION, ALTHOUGH LOCAL LEGISLATION
AND QUESTIONS OF STATE AUTHORIZATION MAY BE INVOLVED.  VIRGINIA V. WEST
VIRGINIA, 11 WALL.  39, 56; 220 U.S. 1, 28.  A DECISION IN THE PRESENT
INSTANCE BY THE STATE COURT WOULD NOT DETERMINE THE CONTROVERSY HERE." 
281 U.S. AT 176-177. 

IN REACHING THIS CONCLUSION THE CHIEF JUSTICE COULD HARDLY AVOID
ANALOGIZING THE SITUATION TO THAT WHERE A QUESTION IS RAISED WHETHER A
STATE HAS IMPAIRED THE OBLIGATION OF A CONTRACT.  "IT HAS FREQUENTLY
BEEN HELD THAT WHEN A QUESTION IS SUITABLY RAISED WHETHER THE LAW OF A
STATE HAS IMPAIRED THE OBLIGATION OF A CONTRACT, IN VIOLATION OF THE
CONSTITUTIONAL PROVISION, THIS COURT MUST DETERMINE FOR ITSELF WHETHER
A CONTRACT EXISTS, WHAT ARE ITS OBLIGATIONS, AND WHETHER THEY HAVE BEEN
IMPAIRED BY THE LEGISLATION OF THE STATE.  WHILE THIS COURT ALWAYS
EXAMINES WITH APPROPRIATE RESPECT THE DECISIONS OF STATE COURTS BEARING
UPON SUCH QUESTIONS, SUCH DECISIONS DO NOT DETRACT FROM THE
RESPONSIBILITY OF THIS COURT IN REACHING ITS OWN CONCLUSIONS AS TO THE
CONTRACT, ITS OBLIGATIONS AND IMPAIRMENT, FOR OTHERWISE THE
CONSTITUTIONAL GUARANTY COULD NOT PROPERLY BE ENFORCED.  LARSON V.
SOUTH DAKOTA, 278 U.S. 429, 433, AND CASES THERE CITED."  281 U.S. AT
176.  AND SEE INDIANA EX REL. ANDERSON V. BRAND, 303 U.S. 95, 100. 

HINDERLIDER V. LA PLATA CO., SUPRA, IS THE SECOND OF THESE CASES.  IT
ALSO MAKES CLEAR, IF AUTHORITY BE NEEDED, THAT THE FACT THE COMPACT
QUESTIONS REACH US ON A WRIT OF CERTIORARI RATHER THAN BY WAY OF AN
ORIGINAL ACTION BROUGHT BY A STATE DOES NOT AFFECT THE POWER OF THIS
COURT.  IN THE HINDERLIDER CASE, AN ACTION WAS BROUGHT IN THE COLORADO
COURTS TO ENJOIN PERFORMANCE OF A COMPACT BETWEEN COLORADO AND NEW
MEXICO CONCERNING WATER RIGHTS IN THE LA PLATA RIVER.  THE STATE COURT
HELD THAT THE COMPACT WAS INVALID BECAUSE IT AFFECTED APPROPRIATION
RIGHTS GUARANTEED BY THE COLORADO STATE CONSTITUTION.  101 COLO. 73, 70
P.2D 849; SEE ALSO 93 COLO. 128, 25 P.2D 187.  MR. JUSTICE BRANDEIS,
LIKEWISE SPEAKING FOR A UNANIMOUS COURT, HELD THAT THE RELATIVE CLAIMS
OF NEW MEXICO AND COLORADO CITIZENS COULD BE DETERMINED BY COMPACT AND
REVERSED THE DECISION OF THE STATE COURT.    THE ISSUE IN THE
HINDERLIDER CASE WAS WHETHER THE COLORADO LEGISLATURE HAD AUTHORITY,
UNDER THE STATE CONSTITUTION, TO ENTER INTO A COMPACT WHICH AFFECTED
THE WATER RIGHTS OF HER CITIZENS.  THE ISSUE BEFORE US IS WHETHER THE
WEST VIRGINIA LEGISLATURE HAD AUTHORITY, UNDER HER CONSTITUTION, TO
ENTER INTO A COMPACT WHICH INVOLVES DELEGATION OF POWER TO AN
INTERSTATE AGENCY AND AN AGREEMENT TO APPROPRIATE FUNDS FOR THE
ADMINISTRATIVE EXPENSES OF THE AGENCY. 

THAT A LEGISLATURE MAY DELEGATE TO AN ADMINISTRATIVE BODY THE POWER
TO MAKE RULES AND DECIDE PARTICULAR CASES IS ONE OF THE AXIOMS OF
MODERN GOVERNMENT.  THE WEST VIRGINIA COURT DOES NOT CHALLENGE THE
GENERAL PROPOSITION BUT OBJECTS TO THE DELEGATION HERE INVOLVED BECAUSE
IT IS TO A BODY OUTSIDE THE STATE AND BECAUSE ITS LEGISLATURE MAY NOT
BE FREE, AT ANY TIME, TO WITHDRAW THE POWER DELEGATED.  WE ARE NOT HERE
CONCERNED, AND SO NEED NOT DEAL, WITH SPECIFIC LANGUAGE IN A STATE
CONSTITUTION REQUIRING THAT THE STATE SETTLE ITS PROBLEMS WITH OTHER
STATES WITHOUT DELEGATING POWER TO AN INTERSTATE AGENCY.  WHAT IS
INVOLVED IS THE CONVENTIONAL GRANT OF LEGISLATIVE POWER.  WE FIND
NOTHING IN THAT TO INDICATE THAT WEST VIRGINIA MAY NOT SOLVE A PROBLEM
SUCH AS THE CONTROL OF RIVER POLLUTION BY COMPACT AND BY THE
DELEGATION, IF SUCH IT BE, NECESSARY TO EFFECTUATE SUCH SOLUTION BY
COMPACT.  IF THIS COURT, IN THE EXERCISE OF ITS ORIGINAL JURISDICTION,
WERE TO ENTER A DECREE REQUIRING WEST VIRGINIA TO ABATE POLLUTION OF
INTERSTATE STREAMS, THAT DECREE WOULD BIND THE STATE.  THE WEST
VIRGINIA LEGISLATURE WOULD HAVE NO PART IN DETERMINING THE STATE'S
OBLIGATION.  THE STATE LEGISLATURE COULD NOT ALTER IT; IT COULD NOT
DISREGARD IT, AS WEST VIRGINIA ON ANOTHER OCCASION SO CREDITABLY
RECOGNIZED.  THE OBLIGATION WOULD BE FIXED BY THIS COURT ON THE BASIS
OF A MASTER'S REPORT.  HERE, THE STATE HAS BOUND ITSELF TO CONTROL
POLLUTION BY THE MORE EFFECTIVE MEANS OF AN AGREEMENT WITH OTHER
STATES.  THE COMPACT INVOLVES A REASONABLE AND CAREFULLY LIMITED
DELEGATION OF POWER TO AN INTERSTATE AGENCY.  NOTHING IN ITS
CONSTITUTION SUGGESTS THAT, IN DEALING WITH THE PROBLEM DEALT WITH BY
THE COMPACT, WEST VIRGINIA MUST WAIT FOR THE ANSWER TO BE DICTATED BY
THIS COURT AFTER HARASSING AND UNSATISFACTORY LITIGATION. 

WHAT MR. JUSTICE BRANDEIS SAID OF THE COLORADO COURT DECISION IN
HINDERLIDER V. LA PLATA CO., SUPRA, APPLIES TO THE DECISION OF THE WEST
VIRGINIA COURT:  "IT IGNORES THE HISTORY AND ORDER OF DEVELOPMENT OF
THE TWO MEANS PROVIDED BY THE CONSTITUTION FOR ADJUSTING INTERSTATE
CONTROVERSIES.  THE COMPACT - THE LEGISLATIVE MEANS - ADAPTS TO OUR
UNION OF SOVEREIGN STATES THE AGE-OLD TREATY-MAKING POWER OF
INDEPENDENT SOVEREIGN NATIONS.  ADJUSTMENT BY COMPACT WITHOUT A
JUDICIAL OR QUASI-JUDICIAL DETERMINATION OF EXISTING RIGHTS HAD BEEN
PRACTICED IN THE COLONIES, WAS PRACTICED BY THE STATES BEFORE THE
ADOPTION OF THE CONSTITUTION, AND HAD BEEN EXTENSIVELY PRACTICED IN THE
UNITED STATES FOR NEARLY HALF A CENTURY BEFORE THIS COURT FIRST APPLIED
THE JUDICIAL MEANS IN SETTLING THE BOUNDARY DISPUTE IN RHODE ISLAND V.
MASSACHUSETTS, 12 PET. 657, 723-25."  304 U.S. AT 104. 

THE STATE COURT ALSO HELD THAT THE COMPACT IS IN CONFLICT WITH ART.
X, SEC. 4, OF THE STATE CONSTITUTION AND FOR THAT REASON IS NOT BINDING
ON WEST VIRGINIA.  THIS SECTION PROVIDES: 

"NO DEBT SHALL BE CONTRACTED BY THIS STATE, EXCEPT TO MEET CASUAL
DEFICITS IN THE REVENUE, TO REDEEM A PREVIOUS LIABILITY OF THE STATE,
TO SUPPRESS INSURRECTION, REPEL INVASION, OR DEFEND THE STATE IN TIME
OF WAR; BUT THE PAYMENT OF ANY LIABILITY, OTHER THAN THAT FOR THE
ORDINARY EXPENSES OF THE STATE, SHALL BE EQUALLY DISTRIBUTED OVER A
PERIOD OF AT LEAST TWENTY YEARS." 

THE COMPACT WAS EVIDENTLY DRAWN WITH GREAT CARE TO MEET THE PROBLEM
OF DEBT LIMITATION IN LIGHT OF THIS SECTION AND SIMILAR RESTRICTIVE
PROVISIONS IN THE CONSTITUTIONS OF OTHER STATES.  ALTHOUGH, UNDER ART.
X OF THE COMPACT, THE STATES AGREE TO APPROPRIATE FUNDS FOR
ADMINISTRATIVE EXPENSES, THE ANNUAL BUDGET MUST BE APPROVED BY THE
GOVERNORS OF THE SIGNATORY STATES.  IN ADDITION, ARTICLE V PROVIDES:
"THE COMMISSION SHALL NOT INCUR ANY OBLIGATIONS OF ANY KIND PRIOR TO
THE MAKING OF APPROPRIATIONS ADEQUATE TO MEET THE SAME; NOR SHALL THE
COMMISSION PLEDGE THE CREDIT OF ANY OF THE SIGNATORY STATES, EXCEPT BY
AND WITH THE AUTHORITY OF THE LEGISLATURE THEREOF."  IN VIEW OF THESE
PROVISIONS, WE CONCLUDE THAT THE OBLIGATION OF THE STATE UNDER THE
COMPACT IS NOT IN CONFLICT WITH ART. X, SEC. 4 OF THE STATE
CONSTITUTION.  REVERSED AND REMANDED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE REED, CONCURRING. 

I CONCUR IN THE JUDGMENT OF THE COURT BUT DISAGREE WITH THE ASSERTION
OF POWER BY THIS COURT TO INTERPRET THE MEANING OF THE WEST VIRGINIA
CONSTITUTION.  THIS COURT MUST ACCEPT THE STATE COURT'S INTERPRETATION
OF ITS OWN CONSTITUTION UNLESS IT IS PREPARED TO SAY THAT THE
INTERPRETATION IS A PALPABLE EVASION TO AVOID A FEDERAL RULE.  FN1 

THERE IS NO PROBLEM CONCERNING THE BINDING EFFECT UPON THIS COURT OF
STATE COURT INTERPRETATION OF STATE LAW, UNDER THE COMPACT CLAUSE SUCH
AS THERE IS UNDER THE CLAUSE AGAINST IMPAIRING THE OBLIGATION OF
CONTRACTS.  FN2  UNDER THE LATTER CLAUSE, THIS COURT, IN ORDER TO
DETERMINE WHETHER THE SUBSEQUENT STATE LAW, CONSTITUTIONAL OR
STATUTORY, IMPAIRS THE FEDERAL PROHIBITION AGAINST IMPAIRMENT OF
CONTRACTS, HAS ASSERTED POWER TO CONSTRUE FOR ITSELF THE DISPUTED
AGREEMENT, TO DECIDE WHETHER IT IS A CONTRACT, AND TO INTERPRET THE
SUBSEQUENT STATE STATUTE TO DECIDE WHETHER IT IMPAIRS THAT CONTRACT. 
FN3  EVEN THEN WE ACCEPT STATE COURT CONCLUSIONS UNLESS "MANIFESTLY
WRONG."  FN4  EXAMINATION HERE, UNDER THE CONTRACT CLAUSE, IS TO
ENFORCE THE FEDERAL PROVISION AGAINST IMPAIRMENT AND IS MADE ONLY TO
DECIDE WHETHER UNDER THE CONTRACT CLAUSE THERE IS A CONTRACT AND
WHETHER IT IS IMPAIRED.  FN5  THIS COURT THUS ADJUDGES WHETHER STATE
ACTION HAS VIOLATED THE FEDERAL CONTRACT CLAUSE.  IT DOES NOT DECIDE
THE MEANING OF A STATE STATUTE AS APPLIED TO A STATE APPROPRIATION. 

UNDER THE COMPACT CLAUSE, HOWEVER, THE FEDERAL QUESTIONS ARE THE
EXECUTION, VALIDITY AND MEANING OF FEDERALLY APPROVED STATE COMPACTS. 
FN6  THE INTERPRETATION OF THE MEANING OF THE COMPACT CONTROLS OVER A
STATE'S APPLICATION OF ITS OWN LAW THROUGH THE SUPREMACY CLAUSE AND NOT
BY ANY IMPLIED FEDERAL POWER TO CONSTRUE STATE LAW. 

WEST VIRGINIA ADJUDGES HER EXECUTION OF THE COMPACT IS INVALID AS A
DELEGATION OF STATE POLICE POWER AND AS A CREATION OF DEBT BEYOND HER
CONSTITUTIONAL POWERS.  SINCE THE CONSTITUTION PROVIDED THE COMPACT FOR
ADJUSTING INTERSTATE RELATIONS, COMPACTS MAY BE ENFORCED DESPITE
OTHERWISE VALID STATE RESTRICTIONS ON STATE ACTION. 

THIS, I THINK, WAS THE BASIS OF OUR HOLDING IN HINDERLIDER V. LA
PLATA CO., 304 U.S. 92.  THE SUPREME COURT OF COLORADO HELD THAT
COMPACT INVALID BECAUSE IT WAS AN EXECUTIVE ABANDONMENT BY COLORADO OF
A CITIZEN'S PREVIOUSLY ACQUIRED WATER RIGHTS, PP. 104 AND 108.  BUT WE
CONCLUDED: 

"WHETHER THE APPORTIONMENT OF THE WATER OF AN INTERSTATE STREAM BE
MADE BY COMPACT BETWEEN THE UPPER AND LOWER STATES WITH THE CONSENT OF
CONGRESS OR BY A DECREE OF THIS COURT, THE APPORTIONMENT IS BINDING
UPON THE CITIZENS OF EACH STATE AND ALL WATER CLAIMANTS, EVEN WHERE THE
STATE HAD GRANTED THE WATER RIGHTS BEFORE IT ENTERED INTO THE
COMPACT."  P. 106. 

FOR THAT CONCLUSION RELIANCE WAS PLACED UPON RHODE ISLAND V.
MASSACHUSETTS, 12 PET. 657, 725, WHERE THIS COURT, SPEAKING OF
COMPACTS, SAID: 

"BY THIS SURRENDER OF THE POWER, WHICH BEFORE THE ADOPTION OF THE
CONSTITUTION WAS VESTED IN EVERY STATE, OF SETTLING THESE CONTESTED
BOUNDARIES, AS IN THE PLENITUDE OF THEIR SOVEREIGNTY THEY MIGHT; THEY
COULD SETTLE THEM NEITHER BY WAR, OR IN PEACE, BY TREATY, COMPACT OR
AGREEMENT, WITHOUT THE PERMISSION OF THE NEW LEGISLATIVE POWER WHICH
THE STATES BROUGHT INTO EXISTENCE BY THEIR RESPECTIVE AND SEVERAL
GRANTS IN CONVENTIONS OF THE PEOPLE.  IF CONGRESS CONSENTED, THEN THE
STATES WERE IN THIS RESPECT RESTORED TO THEIR ORIGINAL INHERENT
SOVEREIGNTY; SUCH CONSENT BEING THE SOLE LIMITATION IMPOSED BY THE
CONSTITUTION, WHEN GIVEN, LEFT THE STATES AS THEY WERE BEFORE ...
WHEREBY THEIR COMPACTS BECAME OF BINDING FORCE, AND FINALLY SETTLED THE
BOUNDARY BETWEEN THEM; OPERATING WITH THE SAME EFFECT AS A TREATY
BETWEEN SOVEREIGN POWERS." 

I WOULD UPHOLD THE VALIDITY OF THE COMPACT AND REVERSE THE JUDGMENT OF
WEST VIRGINIA REFUSING MANDAMUS, WITH DIRECTION TO THAT COURT TO ENTER
A JUDGMENT NOT INCONSISTENT WITH AN OPINION BASED UPON THE SUPREMACY
CLAUSE. 

FN1  UNION PAC. R. CO. V. PUBLIC SERVICE COMM'N, 248 U.S. 67. 

FN2  U.S. CONSTITUTION, ART. I, SEC. 10. 

FN3  APPLEBY V. CITY OF NEW YORK, 271 U.S. 364, 380; KING MFG. CO. V.
AUGUSTA, 277 U.S. 100, 114; COOMBES V. GETZ, 285 U.S. 434, 441. 

FN4  HALE V. STATE BOARD, 302 U.S. 95, 101. 

FN5  COOLIDGE V. LONG, 282 U.S. 582, 597. 

FN6  DELAWARE RIVER JOINT TOLL BRIDGE COMM'N V. COLBURN, 310 U.S.
419, 428, WHERE IT IS SAID, "HENCE WE ADDRESS OURSELVES TO THE LANGUAGE
OF THE COMPACT."  AND SEE THE LAST PARAGRAPH OF THAT OPINION. 

MR. JUSTICE JACKSON, CONCURRING. 

WEST VIRGINIA OFFICIALS INDUCED SISTER STATES TO CONTRACT WITH HER
AND CONGRESS TO CONSENT TO THE COMPACT.  SHE NOW ATTEMPTS TO READ
HERSELF OUT OF THIS INTERSTATE COMPACT BY READING INTO HER CONSTITUTION
A LIMITATION UPON THE POWERS OF HER GOVERNOR AND LEGISLATURE TO
CONTRACT. 

WEST VIRGINIA, FOR INTERNAL AFFAIRS, IS FREE TO INTERPRET HER OWN
CONSTITUTION AS SHE WILL.  BUT IF THE COMPACT SYSTEM IS TO HAVE
VITALITY AND INTEGRITY, SHE MAY NOT RAISE AN ISSUE OF ULTRA VIRES,
DECIDE IT, AND RELEASE HERSELF FROM AN INTERSTATE OBLIGATION.  THE
LEGAL CONSEQUENCES WHICH FLOW FROM THE FORMAL PARTICIPATION IN A
COMPACT CONSENTED TO BY CONGRESS IS A FEDERAL QUESTION FOR THIS COURT. 

WEST VIRGINIA POINTS TO NO PROVISION OF HER CONSTITUTION WHICH WE CAN
SAY WAS CLEAR NOTICE OR FAIR WARNING TO CONGRESS OR OTHER STATES OF ANY
DEFECT IN HER AUTHORITY TO ENTER INTO THIS COMPACT.  IT IS A POWER
INHERENT IN SOVEREIGNTY LIMITED ONLY TO THE EXTENT THAT CONGRESSIONAL
CONSENT IS REQUIRED.  RHODE ISLAND V. MASSACHUSETTS, 12 PET. 657, 725;
POOLE V. FLEEGER, 11 PET. 185, 209.  WHATEVER SHE NOW SAYS HER
CONSTITUTION MEANS, SHE MAY NOT APPLY RETROACTIVELY THAT INTERPRETATION
TO PLACE AN UNFORESEEABLE CONSTRUCTION UPON WHAT THE OTHER STATES TO
THIS COMPACT WERE ENTITLED TO BELIEVE WAS A FULLY AUTHORIZED ACT. 

ESTOPPEL IS NOT OFTEN TO BE INVOKED AGAINST A GOVERNMENT.  BUT WEST
VIRGINIA ASSUMED A CONTRACTUAL OBLIGATION WITH EQUALS BY PERMISSION OF
ANOTHER GOVERNMENT THAT IS SOVEREIGN IN THE FIELD.  AFTER CONGRESS AND
SISTER STATES HAD BEEN INDUCED TO ALTER THEIR POSITIONS AND BIND
THEMSELVES TO TERMS OF A COVENANT, WEST VIRGINIA SHOULD BE ESTOPPED
FROM REPUDIATING HER ACT.  FOR THIS REASON, I CONSIDER THAT WHATEVER
INTERPRETATION SHE MAY PUT ON THE GENERALITIES OF HER CONSTITUTION, SHE
IS BOUND BY THE COMPACT, AND ON THAT BASIS I CONCUR IN THE JUDGMENT. 
..END :










ROBERTSON V. CHAMBERS, 341 U.S. 37 


NO. 295.  ARGUED MARCH 1, 1951.  - DECIDED APRIL 9, 1951.  - 87 U.S.
APP. D.C. 91, 183 F.2D 144, REVERSED. 


UPON REVIEW UNDER SEC. 302(A) OF THE SERVICEMEN'S READJUSTMENT ACT OF
1944 OF A DECISION OF THE ARMY RETIRING BOARD DISCHARGING AN OFFICER
FOR PHYSICAL DISABILITY WITHOUT PAY, THE ARMY DISABILITY REVIEW BOARD
MAY CONSIDER, AS PART OF THE OFFICER'S "SERVICE RECORDS," MEDICAL
REPORTS OF THE VETERANS' ADMINISTRATION ON THE OFFICER'S SUBSEQUENT
MEDICAL HISTORY, WHICH RECORDS HAD BEEN TRANSMITTED TO THE ARMY AND
INCORPORATED IN ITS FILES.  PP. 37-40. 

ROBERTSON, PRESIDENT OF THE ARMY REVIEW BOARD, V. CHAMBERS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE CASE IS STATED IN THE OPINION.  REVERSED, P. 40. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, A FORMER CAPTAIN IN THE ARMY, WAS HONORABLY DISCHARGED
FOR PHYSICAL DISABILITY AND WITHOUT RETIREMENT PAY, AS THE RESULT OF A
DECISION BY AN ARMY RETIRING BOARD.  RESPONDENT APPLIED TO THE ARMY
DISABILITY REVIEW BOARD FOR REVIEW OF THAT ACTION.  THE REVIEW BOARD
HELD THAT RESPONDENT WAS NOT ENTITLED TO RETIREMENT PAY.  RESPONDENT,
HAVING REQUESTED A REHEARING, WAS ALLOWED TO EXAMINE THE RECORD ON
WHICH THE REHEARING WOULD BE BASED.  HE DISCOVERED THAT THE RECORD
CONTAINED CERTAIN MEDICAL REPORTS OF THE VETERANS' ADMINISTRATION
CONCERNING HIS CONDITION.  RESPONDENT REQUESTED THE REVIEW BOARD TO
REMOVE THOSE REPORTS FROM THE RECORD.  THE REVIEW BOARD REFUSED. 
RESPONDENT THEREUPON INSTITUTED THIS MANDAMUS PROCEEDING SEEKING A
MANDATORY INJUNCTION DIRECTING THE PRESIDENT OF THE REVIEW BOARD TO
EXCLUDE THOSE REPORTS FROM THE RECORD.  THE DISTRICT COURT DISMISSED
THE COMPLAINT.  THE COURT OF APPEALS REVERSED.  87 U.S. APP. D.C. 91,
183 F.2D 144.  THE CASE IS HERE ON CERTIORARI.  340 U.S. 889. 

THE PRINCIPAL QUESTION RELATES TO THE PROVISION IN SEC. 302(A) OF THE
SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, 59 STAT. 623, 38
U.S.C. SEC. 693I (A), WHICH DESCRIBES THE SCOPE OF REVIEW BY THE REVIEW
BOARD AS FOLLOWS:  "SUCH REVIEW SHALL BE BASED UPON ALL AVAILABLE
SERVICE RECORDS RELATING TO THE OFFICER REQUESTING SUCH REVIEW, AND
SUCH OTHER EVIDENCE AS MAY BE PRESENTED BY SUCH OFFICER."  RESPONDENT
CONTENDS THAT THE TERM "SERVICE RECORDS" MEANS THE RECORD OF THE
SERVICE WHICH THE MILITARY MAN HAS RENDERED FROM THE TIME OF HIS ENTRY
INTO THE SERVICE UNTIL HIS DISCHARGE.  THAT WAS THE VIEW OF THE COURT
OF APPEALS.  WE, HOWEVER, THINK OTHERWISE. 

BY, OR VESTED IN, THE BOARD WHOSE FINDINGS AND DECISION ARE BEING
REVIEWED."  THAT BOARD IS THE RETIRING BOARD WHICH R.S. SEC. 1248, 10
U.S.C. SEC. 963, SAYS MAY "INQUIRE INTO AND DETERMINE THE FACTS
TOUCHING THE NATURE AND OCCASION OF THE DISABILITY OF ANY OFFICER WHO
APPEARS TO BE INCAPABLE OF PERFORMING THE DUTIES OF HIS OFFICE, AND
SHALL HAVE SUCH POWERS OF A COURT-MARTIAL AND OF A COURT OF INQUIRY AS
MAY BE NECESSARY FOR THAT PURPOSE." 

THESE POWERS OF THE RETIRING BOARD HAVE BEEN GIVEN A WIDE REACH, SO
THAT THE NATURE AND CAUSE OF THE DISABILITY MAY BE ASCERTAINED.  THEIR
BROAD CHARACTER WILL NOT, OF COURSE, OVERRIDE THE SPECIFIC PROVISION OF
SEC. 302(A) TO THE EFFECT THAT THE "REVIEW SHALL BE BASED UPON ALL
AVAILABLE SERVICE RECORDS," ETC.  BUT THE NATURE OF THE POWERS GRANTED
UNDER R.S. SEC. 1248 HAS RELEVANCE TO THE ARGUMENTS PRESSED ON US FOR
AND AGAINST READING "SERVICE RECORDS" NARROWLY. 

THE POWERS GRANTED THE RETIRING BOARD HAVE BEEN CONSTRUED BY THE
REGULATIONS IN A LIBERAL FASHION, NOT IN A NARROW AND STIFLING WAY. 
THUS THE ADJUTANT GENERAL IS REQUIRED TO FURNISH THE BOARD WITH THE
"ORIGINALS OR CERTIFIED COPIES OF THE COMPLETE MEDICAL HISTORY, AND OF
ALL OTHER OFFICIAL RECORDS AFFECTING THE HEALTH AND PHYSICAL CONDITION
OF THE OFFICER."  FN1  THE ORAL EXAMINATION OF THE OFFICER IS GRANTED
FOR THE PURPOSE "OF MAKING FULL DISCOVERY OF ALL FACTS AS TO HIS
CONDITION."  FN2  THESE HEARINGS ARE NOT CONTESTS; THEY ARE INQUIRIES
CONCERNING DISABILITY.  THE PURPOSE IS TO GET AT THE TRUTH OF THE
MATTER.  FN3 

THE MEDICAL HISTORY FOLLOWING THE RETIREMENT WILL OFTEN BE OF GREAT
IMPORTANCE TO THE REVIEW BOARD, SINCE THE STATUTE OF LIMITATIONS WHICH
GOVERNS REVIEW IS A LONG ONE.  REQUESTS FOR REVIEW MAY BE MADE WITHIN
15 YEARS AFTER THE RETIREMENT OR AFTER JUNE 22, 1944, WHICHEVER IS THE
LATER.  SEC. 302(B).  MEDICAL HISTORY MAY THEREFORE BE HIGHLY PERTINENT
TO THE INQUIRY.  PLAINLY THE OFFICER IS GRANTED AUTHORITY UNDER SEC.
302(A) TO INTRODUCE SUCH EVIDENCE; AND IT IS CERTAIN HE WILL DO SO IF
IT IS FAVORABLE.  WE HESITATE AT A CONSTRUCTION OF THE STATUTE WHICH
FORECLOSES THE ARMY FROM CONSIDERING THE EVIDENCE WHEN IT IS
UNFAVORABLE.  FN4  YET THAT WOULD BE THE RESULT IF WE CONSTRUED
"SERVICE RECORDS" NARROWLY.  WE THINK IT WOULD BE MORE IN HARMONY WITH
THE NATURE OF THE PROCEDURE, THE PURPOSE OF THE INQUIRY, AND THE POWERS
GRANTED THE REVIEW BOARD TO CONSTRUE "SERVICE RECORDS" BROADLY ENOUGH
TO INCLUDE THESE MEDICAL REPORTS. 

THE REPORTS IN ISSUE WERE OFFICIAL GOVERNMENT REPORTS TRANSMITTED TO
THE ARMY AND INCORPORATED IN THAT DEPARTMENT'S FILES.  THEY THEREFORE
BECAME A PART OF THE RECORD OF THE OFFICER PERTAINING TO HIS SERVICE. 
WE CONCLUDE THAT THEY ARE "SERVICE RECORDS" WITHIN THE MEANING OF SEC.
302(A).  REVERSED. 

FN1  ARMY REG. 605-250, MAR. 28, 1944, PAR. 3A. 

FN2  ID. AT PAR. 21. 

FN3  THE REGULATIONS GOVERNING THE DISABILITY REVIEW BOARD HAVE
INCORPORATED THIS BROAD CONSTRUCTION OF THE POWERS GRANTED.  THUS THE
ADJUTANT GENERAL IS TO PROVIDE THAT BOARD WITH "ALL AVAILABLE
DEPARTMENT OF THE ARMY AND/OR OTHER RECORDS PERTAINING TO THE HEALTH
AND PHYSICAL CONDITION OF THE APPLICANT."  32 CFR SEC.
581.1(A)(2)(III).  AND SEE NOTE 4, INFRA. 

FN4  THE REGULATIONS PROMULGATED TO GOVERN DISABILITY REVIEW BOARD
PROCEEDINGS HAVE NOT RESTRICTED THE INQUIRY BY SUCH A CRAMPED
CONSTRUCTION.  THEY AUTHORIZE THE BOARD "TO RECEIVE ADDITIONAL EVIDENCE
BEARING ON THE CAUSES AND SERVICE-CONNECTION OF (THE DISABILITY)"
WITHOUT LIMITATION.  32 CFR SEC. 581.1(A)(1)(III).  INDEED THEY EMPOWER
THE BOARD TO MAKE ITS OWN PHYSICAL EXAMINATION OF THE RETIRED OFFICER
AT THE TIME OF THE HEARING.  32 CFR SEC. 581.1(B)(2)(V). 
..END :























MOSER V. UNITED STATES, 341 U.S. 41 


NO. 301.  ARGUED MARCH 7, 1951.  - DECIDED APRIL 9, 1951.  - 182 F.2D
734, REVERSED. 


THE TREATY OF 1850 BETWEEN THE UNITED STATES AND SWITZERLAND PROVIDES
THAT CITIZENS OF ONE COUNTRY RESIDING IN THE OTHER "SHALL BE FREE FROM
PERSONAL MILITARY SERVICE."  SECTION 3(A) OF THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940, AS AMENDED, PROVIDED FOR THE EXEMPTION OF NEUTRAL
ALIENS FROM SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES,
WITH THE PROVISO THAT ONE WHO CLAIMED EXEMPTION SHOULD THEREAFTER BE
BARRED FROM BECOMING A CITIZEN OF THE UNITED STATES.  PETITIONER, A
SWISS NATIONAL, APPLIED FOR AND OBTAINED EXEMPTION FROM SERVICE IN THE
LAND OR NAVAL FORCES OF THE UNITED STATES.  HELD:  UNDER THE
CIRCUMSTANCES DETAILED IN THE OPINION, HE WAS NOT DEBARRED FROM UNITED
STATES CITIZENSHIP.  PP. 42-47. 

(A)  AS A MATTER OF LAW, THE ACT IMPOSED A VALID CONDITION ON
PETITIONER'S CLAIM OF EXEMPTION FROM MILITARY SERVICE.  PP. 45-46. 

(B)  PETITIONER DID NOT KNOWINGLY AND INTENTIONALLY WAIVE HIS RIGHTS
TO CITIZENSHIP.  CONSIDERING ALL THE CIRCUMSTANCES OF THE CASE,
ELEMENTARY FAIRNESS WOULD REQUIRE NOTHING LESS THAN AN INTELLIGENT
WAIVER TO DEBAR PETITIONER FROM CITIZENSHIP.  PP. 46-47. 

MOSER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

AN ORDER OF THE DISTRICT COURT ADMITTING PETITIONER TO CITIZENSHIP,
85 F.SUPP.  683, WAS REVERSED BY THE COURT OF APPEALS.  182 F.2D 734. 
THIS COURT GRANTED CERTIORARI.  340 U.S. 910.  REVERSED, P. 47. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A NATIVE OF SWITZERLAND, WAS ADMITTED TO CITIZENSHIP BY
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
ON JULY 21, 1949.  FN1  THE COURT OF APPEALS REVERSED, FN2  HOLDING
THAT PETITIONER WAS DEBARRED FROM CITIZENSHIP BECAUSE HE HAD CLAIMED
EXEMPTION FROM MILITARY SERVICE AS A NEUTRAL ALIEN DURING WORLD WAR II.
IMPORTANT QUESTIONS CONCERNING THE EFFECT OF TREATY AND STATUTE UPON
THE PRIVILEGE OF ALIENS TO ACQUIRE CITIZENSHIP ARE INVOLVED, AND WE
GRANTED CERTIORARI.  FN3 

PETITIONER FIRST ENTERED THE UNITED STATES IN 1937.  AFTER A TRIP TO
SWITZERLAND IN 1940 FOR SERVICE IN THE SWISS ARMY, IN WHICH HE HELD A
COMMISSION, HE RETURNED TO THIS COUNTRY AND MARRIED A UNITED STATES
CITIZEN.  HE AND HIS WIFE HAVE THREE CHILDREN, ALL BORN HERE. 

ARTICLE II OF THE TREATY OF 1850  FN4  BETWEEN THE UNITED STATES AND
SWITZERLAND PROVIDES THAT 

"THE CITIZENS OF ONE OF THE TWO COUNTRIES, RESIDING OR ESTABLISHED IN
THE OTHER, SHALL BE FREE FROM PERSONAL MILITARY SERVICE ...  " 

PETITIONER REGISTERED UNDER SELECTIVE SERVICE IN 1940 AND WAS
CLASSIFIED III-A, BASED ON DEPENDENCY.  WHEN, ON JANUARY 11, 1944, HIS
LOCAL BOARD IN NEW YORK CITY RECLASSIFIED HIM I-A, AVAILABLE FOR
SERVICE, HE SOUGHT THE AID OF THE LEGATION OF SWITZERLAND IN SECURING
HIS DEFERMENT IN ACCORDANCE WITH THE TREATY OF 1850.  AT THAT TIME SEC.
3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED,
FN5  PROVIDED FOR THE EXEMPTION OF NEUTRAL ALIENS FROM MILITARY
SERVICE, WITH THE PROVISO THAT ONE WHO CLAIMED EXEMPTION SHOULD
THEREAFTER BE DEBARRED FROM BECOMING A CITIZEN OF THE UNITED STATES. 
PETITIONER, HOWEVER, ADVISED THE LOCAL BOARD THAT HE HAD TAKEN STEPS
WITH THE SWISS LEGATION "TO BE RELEASED UNCONDITIONALLY" FROM SERVICE
UNDER THE TREATY. 

UPON RECEIVING PETITIONER'S REQUEST FOR ASSISTANCE, THE SWISS
LEGATION IN WASHINGTON REQUESTED THE DEPARTMENT OF STATE THAT HE BE
GIVEN AN "UNCONDITIONAL RELEASE" FROM LIABILITY FOR SERVICE, "IN
CONFORMITY WITH" THE TREATY.  THE DEPARTMENT REFERRED THE REQUEST TO
THE SELECTIVE SERVICE SYSTEM, WHICH REPLIED THAT THE LOCAL BOARD HAD
BEEN INSTRUCTED TO INFORM PETITIONER THAT HE MIGHT OBTAIN A REVISED
FORM 301 FROM THE SWISS LEGATION TO BE USED IN CLAIMING EXEMPTION. 
SELECTIVE SERVICE HEADQUARTERS IN WASHINGTON DID SO INSTRUCT THE
DIRECTOR OF SELECTIVE SERVICE FOR NEW YORK CITY.  ON FEBRUARY 18, 1944,
THE SWISS LEGATION WROTE PETITIONER THAT IT HAD REQUESTED THE
DEPARTMENT OF STATE TO EXEMPT HIM "IN ACCORDANCE WITH THE PROVISIONS OF
ART. II, OF THE TREATY ...  "  THE LETTER CONTINUED: 

"WE ARE FORWARDING TO YOU, HEREWITH, TWO COPIES OF DSS FORM 301,
REVISED, WHICH KINDLY EXECUTE AND FILE IMMEDIATELY WITH YOUR LOCAL
BOARD.  THIS ACTION ON YOUR PART IS NECESSARY IN ORDER TO COMPLETE THE
EXEMPTION PROCEDURE; YOUR LOCAL BOARD, IN ACCORDANCE WITH SELECTIVE
SERVICE REGULATIONS, AS AMENDED, WILL THEN CLASSIFY YOU IN CLASS IV-C. 

"PLEASE NOTE THAT, THROUGH FILING OF DSS FORM 301, REVISED, YOU WILL
NOT WAIVE YOUR RIGHT TO APPLY FOR AMERICAN CITIZENSHIP PAPERS.  THE
FINAL DECISION REGARDING YOUR NATURALIZATION WILL REMAIN SOLELY WITH
THE COMPETENT NATURALIZATION COURTS." 

THE LEGATION'S EMPHASIS IN REFERRING TO "FORM 301, REVISED" IS NOT
WITHOUT SIGNIFICANCE.  THE PERTINENT REGULATIONS PROMULGATED BY THE
PRESIDENT  FN6  PROVIDED THAT TO CLAIM EXEMPTION AN ALIEN SHOULD FILE
WITH HIS LOCAL BOARD FORM 301, WHICH BECAME KNOWN AS DSS 301,
"APPLICATION BY ALIEN FOR RELIEF FROM MILITARY SERVICE."  ABOVE THE
SIGNATURE LINE ON THIS FORM THERE APPEARED THE STATEMENT, IN OBVIOUS
REFERENCE TO THE PROVISO OF SEC. 3(A):  "I UNDERSTAND THAT THE MAKING
OF THIS APPLICATION TO BE RELIEVED FROM SUCH LIABILITY WILL DEBAR ME
FROM BECOMING A CITIZEN OF THE UNITED STATES."  BUT SHORTLY AFTER SEC.
3(A) OF THE ACT WAS AMENDED TO THE CONTENT WITH WHICH WE HERE DEAL,
FN7  THE SWISS LEGATION HAD PROTESTED TO THE DEPARTMENT OF STATE THAT
IT WAS INCONSISTENT WITH THE TREATY RIGHTS OF SWISS CITIZENS.  AND THE
DEPARTMENT HAD HASTENED TO ASSURE THE LEGATION THAT THE GOVERNMENT HAD
NO INTENTION OF ABROGATING TREATY RIGHTS OR PRIVILEGES OF SWISS
NATIONALS.  THE STATE DEPARTMENT, IN CONJUNCTION WITH SELECTIVE SERVICE
HEADQUARTERS AND THE SWISS LEGATION, HAD THEN NEGOTIATED AGREEMENT UPON
A REVISED FORM 301 WHICH OMITTED THE WAIVER QUOTED ABOVE AND STATED
SIMPLY:  "I HEREBY APPLY FOR RELIEF FROM LIABILITY FOR TRAINING AND
SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES."  A FOOTNOTE
OF THE REVISED FORM QUOTED PERTINENT PARTS OF SEC. 3(A). 

IT WAS UNDER THESE CIRCUMSTANCES THAT PETITIONER SIGNED A REVISED
FORM 301 ON FEBRUARY 26, 1944, AND WAS CLASSIFIED IV-C BY HIS LOCAL
BOARD.  THE COURT OF APPEALS HAS ACCEPTED, AS DO WE, THE FINDING OF THE
DISTRICT COURT THAT PETITIONER SIGNED THE APPLICATION FOR EXEMPTION
BELIEVING THAT HE WAS NOT THEREBY PRECLUDED FROM CITIZENSHIP, AND THAT
HAD HE KNOWN CLAIMING EXEMPTION WOULD DEBAR HIM FROM CITIZENSHIP, HE
WOULD NOT HAVE CLAIMED IT, BUT WOULD HAVE ELECTED TO SERVE IN THE ARMED
FORCES. 

IS PETITIONER DEBARRED FROM CITIZENSHIP BY REASON OF THE CLAIMED
EXEMPTION? 

THE TREATY OF 1850 WITH SWITZERLAND WAS IN FULL FORCE IN 1940 WHEN
THE SELECTIVE TRAINING AND SERVICE ACT WAS PASSED.  STANDING ALONE, THE
TREATY PROVIDED FOR EXEMPTION OF SWISS CITIZENS FROM MILITARY SERVICE
OF THE UNITED STATES, AND IF THAT WERE ALL, PETITIONER WOULD HAVE BEEN
ENTITLED TO UNQUALIFIED EXEMPTION.  SECTION 3(A) OF THE ACT, WHILE
RECOGNIZING THE IMMUNITY OF CITIZENS OF NEUTRAL COUNTRIES FROM SERVICE
IN OUR ARMED FORCES,  FN8  IMPOSED THE CONDITION THAT NEUTRAL ALIENS
RESIDING HERE WHO CLAIMED SUCH IMMUNITY WOULD BE DEBARRED FROM
CITIZENSHIP.  THAT THE STATUTE UNQUESTIONABLY IMPOSED A CONDITION ON
EXEMPTION NOT FOUND IN THE TREATY DOES NOT MEAN THEY ARE INCONSISTENT. 
NOT DOUBTING THAT A TREATY MAY BE MODIFIED BY A SUBSEQUENT ACT OF
CONGRESS, FN9  IT IS NOT NECESSARY TO INVOKE SUCH AUTHORITY HERE, FOR
WE FIND IN THIS CONGRESSIONALLY IMPOSED LIMITATION ON CITIZENSHIP
NOTHING INCONSISTENT WITH THE PURPOSES AND SUBJECT MATTER OF THE
TREATY.  THE TREATY MAKES NO PROVISION RESPECTING CITIZENSHIP.  ON THE
CONTRARY, IT EXPRESSLY PROVIDES THAT THE PRIVILEGES GUARANTEED BY EACH
COUNTRY TO RESIDENT CITIZENS OF THE OTHER "SHALL NOT EXTEND TO THE
EXERCISE OF POLITICAL RIGHTS."  FN10  THE QUALIFICATIONS FOR AND
LIMITATIONS ON THE ACQUISITION OF UNITED STATES CITIZENSHIP ARE A
POLITICAL MATTER  FN11  WHICH THE TREATY DID NOT PRESUME TO COVER. 

THUS, AS A MATTER OF LAW, THE STATUTE IMPOSED A VALID CONDITION ON
THE CLAIM OF A NEUTRAL ALIEN FOR EXEMPTION; PETITIONER HAD A CHOICE OF
EXEMPTION AND NO CITIZENSHIP, OR NO EXEMPTION AND CITIZENSHIP. 

BUT AS WE HAVE ALREADY INDICATED, BEFORE PETITIONER SIGNED THE
APPLICATION FOR EXEMPTION, HE HAD ASSERTED A RIGHT TO EXEMPTION WITHOUT
DEBARMENT FROM CITIZENSHIP.  IN RESPONSE TO THE CLAIMS OF PETITIONER
AND OTHERS, AND IN APPARENT ACQUIESCENCE, OUR DEPARTMENT OF STATE HAD
ARRANGED FOR A REVISED PROCEDURE IN CLAIMING EXEMPTION.  THE EXPRESS
WAIVER OF CITIZENSHIP HAD BEEN DELETED.  PETITIONER HAD SOUGHT
INFORMATION AND GUIDANCE FROM THE HIGHEST AUTHORITY TO WHICH HE COULD
TURN, AND WAS ADVISED TO SIGN REVISED FORM 301.  HE WAS LED TO BELIEVE
THAT HE WOULD NOT THEREBY LOSE HIS RIGHTS TO CITIZENSHIP.  IF HE HAD
KNOWN OTHERWISE HE WOULD NOT HAVE CLAIMED EXEMPTION.  IN JUSTIFIABLE
RELIANCE ON THIS ADVICE HE SIGNED THE PAPERS SENT TO HIM BY THE
LEGATION. 

WE DO NOT OVERLOOK THE FACT THAT THE REVISED FORM 301 CONTAINED A
FOOTNOTE REFERENCE TO THE STATUTORY PROVISION, AND THAT THE LEGATION
WROTE PETITIONER, "YOU WILL NOT WAIVE YOUR RIGHT TO APPLY FOR AMERICAN
CITIZENSHIP PAPERS."  THE FOOTNOTE MIGHT HAVE GIVEN PAUSE TO A TRAINED
LAWYER.  A LAWYER MIGHT HAVE SPECULATED ON THE POSSIBLE INNUENDOES IN
THE USE OF THE PHRASE "RIGHT TO APPLY," AS OPPOSED TO "RIGHT TO
OBTAIN."  BUT THESE ARE MINOR DISTRACTIONS IN A TOTAL SETTING WHICH
UNDERSTANDABLY LULLED THIS PETITIONER INTO MISCONCEPTION OF THE LEGAL
CONSEQUENCES OF APPLYING FOR EXEMPTION. 

NOR DID PETITIONER SIGN ONE THING AND CLAIM ANOTHER, AS IN SAVORGNAN
V. UNITED STATES, 338 U.S. 491.  SINCE THE REVISED FORM 301 CONTAINED
NO WAIVER, WHAT HE SIGNED WAS ENTIRELY CONSISTENT WITH WHAT HE BELIEVED
AND CLAIMED. 

THERE IS NO NEED TO EVALULATE THESE CIRCUMSTANCES ON THE BASIS OF ANY
ESTOPPEL OF THE GOVERNMENT OR THE POWER OF THE SWISS LEGATION TO BIND
THE UNITED STATES BY ITS ADVICE TO PETITIONER.  PETITIONER DID NOT
KNOWINGLY AND INTENTIONALLY WAIVE HIS RIGHTS TO CITIZENSHIP.  IN FACT,
BECAUSE OF THE MISLEADING CIRCUMSTANCES OF THIS CASE, HE NEVER HAD AN
OPPORTUNITY TO MAKE AN INTELLIGENT ELECTION BETWEEN THE DIAMETRICALLY
OPPOSED COURSES REQUIRED AS A MATTER OF STRICT LAW.  CONSIDERING ALL
THE CIRCUMSTANCES OF THE CASE, WE THINK THAT TO BAR PETITIONER, NOTHING
LESS THAN AN INTELLIGENT WAIVER IS REQUIRED BY ELEMENTARY FAIRNESS. 
JOHNSON V. UNITED STATES, 318 U.S. 189, 197.  TO HOLD OTHERWISE WOULD
BE TO ENTRAP PETITIONER. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  85 F.SUPP.  683. 

FN2  182 F.2D 734. 

FN3  340 U.S. 910. 

FN4  11 STAT. 587, 589. 

FN5  SECTION 3(A) OF THE ACT, 54 STAT. 885, AS AMENDED, 55 STAT. 845,
50 U.S.C. APP. SEC. 303(A), PROVIDED IN PART: 

"EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, EVERY MALE CITIZEN OF THE
UNITED STATES, AND EVERY OTHER MALE PERSON RESIDING IN THE UNITED
STATES  ...  SHALL BE LIABLE FOR TRAINING AND SERVICE IN THE LAND OR
NAVAL FORCES OF THE UNITED STATES:  PROVIDED, THAT ANY CITIZEN OR
SUBJECT OF A NEUTRAL COUNTRY SHALL BE RELIEVED FROM LIABILITY FOR
TRAINING AND SERVICE UNDER THIS ACT IF, PRIOR TO HIS INDUCTION INTO THE
LAND OR NAVAL FORCES, HE HAS MADE APPLICATION TO BE RELIEVED FROM SUCH
LIABILITY IN THE MANNER PRESCRIBED BY AND IN ACCORDANCE WITH RULES AND
REGULATIONS PRESCRIBED BY THE PRESIDENT, BUT ANY PERSON WHO MAKES SUCH
APPLICATION SHALL THEREAFTER BE DEBARRED FROM BECOMING A CITIZEN OF THE
UNITED STATES  ...  " 

FN6  32 CFR, 1943 CUM. SUPP., SEC. 622.43. 

FN7  SEE 55 STAT. 845; NOTE 5, SUPRA. 

FN8  4 MOORE INTERNATIONAL LAW DIGEST 52-53, 61. 

FN9  CLARK V. ALLEN, 331 U.S. 503, 508-509; PIGEON RIVER CO. V. COX,
291 U.S. 138, 160; HEAD MONEY CASES, 112 U.S. 580, 597-599.  CF. COOK
V. UNITED STATES, 228 U.S. 102, 120. 

FN10  11 STAT. 587, 588. 

FN11  U.S. CONST., ART. I, SEC. 8, CL. 4; UNITED STATES V. MACINTOSH,
283 U.S. 605, 615; UNITED STATES V. SCHWIMMER, 279 U.S. 644, 649;
ZARTARIAN V. BILLINGS, 204 U.S. 170, 175. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER AGREE WITH THE COURT'S
DECISION AND OPINION THAT MOSER DID NOT WAIVE HIS RIGHTS OF
CITIZENSHIP.  QUESTIONS REGARDING THE SCOPE OF THE TREATY OF 1850 AND
THE BEARING OF THE SELECTIVE SERVICE ACT OF 1940 ON THE TREATY ARE
THEREFORE NOT REACHED AND SHOULD NOT BE CONSIDERED. 
..END :










UNITED STATES V. TILLAMOOKS, 341 U.S. 48 


NO. 281.  ARGUED MARCH 2, 1951.  - DECIDED APRIL 9, 1951.  - 115 CT. CL.
463, 87 F.SUPP.  938, REVERSED. 


IN DETERMINING THE AMOUNT OF COMPENSATION TO WHICH RESPONDENTS WERE
ENTITLED AFTER THE DECISION OF THIS COURT IN UNITED STATES V. ALCEA
BAND OF TILLAMOOKS, 329 U.S. 40, THE COURT OF CLAIMS ENTERED JUDGMENT
FOR THE VALUE OF THE LANDS AS OF 1855 PLUS INTEREST FROM THAT DATE. 
HELD:  THE AWARD OF INTEREST WAS ERRONEOUS, SINCE RECOVERY WAS NOT
GROUNDED ON A TAKING UNDER THE FIFTH AMENDMENT AND THE RELEVANT STATUTE
CONTAINS NO PROVISION EXPRESSLY AUTHORIZING AN AWARD OF INTEREST.  PP.
48-49. 

UNITED STATES V. ALCEA BAND OF TILLAMOOKS ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

PER CURIAM. 

THE FACTS LEADING TO THIS CONTROVERSY ARE FULLY SET FORTH IN UNITED
STATES V. ALCEA BAND OF TILLAMOOKS, 329 U.S. 40(1946), WHERE THIS COURT
AFFIRMED A JUDGMENT OF THE COURT OF CLAIMS THAT CERTAIN NAMED INDIAN
TRIBES "ARE ENTITLED TO RECOVER" COMPENSATION FOR THE TAKING OF
ORIGINAL INDIAN TITLE BY THE UNITED STATES IN 1855.  THE AMOUNT OF
RECOVERY WAS RESERVED EXPRESSLY FOR THE FURTHER PROCEEDINGS WHICH ARE
BEFORE THE COURT IN THIS CASE.  AFTER THE AFFIRMANCE, THE COURT OF
CLAIMS HEARD EVIDENCE ON THE AMOUNT OF RECOVERY AND ENTERED A JUDGMENT
FOR THE VALUE OF THE LANDS AS OF 1855 PLUS INTEREST FROM THAT DATE. 
115 CT. CL. 463, 87 F.SUPP.  938.  WE GRANTED CERTIORARI LIMITED TO THE
QUESTION PRESENTED BY THE AWARD OF INTEREST.  340 U.S. 873(1950). 

IT IS THE "TRADITIONAL RULE" THAT INTEREST ON CLAIMS AGAINST THE
UNITED STATES CANNOT BE RECOVERED IN THE ABSENCE OF AN EXPRESS
PROVISION TO THE CONTRARY IN THE RELEVANT STATUTE OR CONTRACT.  28
U.S.C. (SUPP. III) SEC. 2516(A).  UNITED STATES V. THAYER-WEST POINT
HOTEL CO., 329 U.S. 585, 588(1947), AND CASES CITED THEREIN.  THIS RULE
PRECLUDES AN AWARD OF INTEREST EVEN THOUGH A STATUTE SHOULD DIRECT AN
AWARD OF "JUST COMPENSATION" FOR A PARTICULAR TAKING.  UNITED STATES V.
GOLTRA, 312 U.S. 203(1941).  THE ONLY EXCEPTION ARISES WHEN THE TAKING
ENTITLES THE CLAIMANT TO JUST COMPENSATION UNDER THE FIFTH AMENDMENT. 
ONLY IN SUCH CASES DOES THE AWARD OF COMPENSATION INCLUDE INTEREST. 
SEABOARD AIR LINE R. CO. V. UNITED STATES, 261 U.S. 299(1923); UNITED
STATES V. THAYER-WEST POINT HOTEL CO., SUPRA. 

LOOKING TO THE FORMER OPINIONS IN THIS CASE, WE FIND THAT NONE OF
THEM EXPRESSED THE VIEW THAT RECOVERY WAS GROUNDED ON A TAKING UNDER
THE FIFTH AMENDMENT.  AND, SINCE THE APPLICABLE JURISDICTIONAL ACT, 49
STAT. 801(1935), CONTAINS NO PROVISION AUTHORIZING AN AWARD OF
INTEREST, SUCH AWARD MUST BE REVERSED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















SHEPHERD V. FLORIDA, 341 U.S. 50 


NO. 420.  ARGUED MARCH 9, 1951.  - DECIDED APRIL 9, 1951.  - 46 SO.2D
880, REVERSED. 


A JUDGMENT OF THE SUPREME COURT OF FLORIDA AFFIRMING THE CONVICTION OF
THE PETITIONERS FOR RAPE, AGAINST A CLAIM OF DENIAL OF RIGHTS UNDER THE
FOURTEENTH AMENDMENT, IS HERE REVERSED ON THE AUTHORITY OF CASSELL V.
TEXAS, 339 U.S. 282. 

SHEPHERD ET AL. V. FLORIDA. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PER CURIAM. 

THE JUDGMENT IS REVERSED.  CASSELL V. TEXAS, 339 U.S. 282. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS, CONCURRING
IN THE RESULT. 

ON THE 16TH OF JULY, 1949, A SEVENTEEN-YEAR-OLD WHITE GIRL IN LAKE
COUNTY, FLORIDA, REPORTED THAT SHE HAD BEEN RAPED, AT THE POINT OF A
PISTOL, BY FOUR NEGROES.  SIX DAYS LATER PETITIONERS WERE INDICTED AND,
BEGINNING SEPTEMBER 1, WERE TRIED FOR THE OFFENSE, CONVICTED WITHOUT
RECOMMENDATION OF MERCY, AND SENTENCED TO DEATH.  FN1  THE SUPREME
COURT OF FLORIDA, IN REVIEWING EVIDENCE OF GUILT, SAID, "AS WE STUDY
THE TESTIMONY, THE ONLY QUESTION PRESENTED HERE IS WHICH SET OF
WITNESSES WOULD THE JURY BELIEVE, THAT IS, THE STATE'S WITNESSES OR THE
TESTIMONY AS GIVEN BY THE DEFENDANT-APPELLANTS."  FN2 

BUT PREJUDICIAL INFLUENCES OUTSIDE THE COURTROOM, BECOMING ALL TOO
TYPICAL OF A HIGHLY PUBLICIZED TRIAL, WERE BROUGHT TO BEAR ON THIS JURY
WITH SUCH FORCE THAT THE CONCLUSION IS INESCAPABLE THAT THESE
DEFENDANTS WERE PREJUDGED AS GUILTY AND THE TRIAL WAS BUT A LEGAL
GESTURE TO REGISTER A VERDICT ALREADY DICTATED BY THE PRESS AND THE
PUBLIC OPINION WHICH IT GENERATED. 

NEWSPAPERS PUBLISHED AS A FACT, AND ATTRIBUTED THE INFORMATION TO THE
SHERIFF, THAT THESE DEFENDANTS HAD CONFESSED.  NO ONE, INCLUDING THE
SHERIFF, REPUDIATED THE STORY.  FN3  WITNESSES AND PERSONS CALLED AS
JURORS SAID THEY HAD READ OR HEARD OF THIS STATEMENT.  HOWEVER, NO
CONFESSION WAS OFFERED AT THE TRIAL.  THE ONLY RATIONAL EXPLANATIONS
FOR ITS NONPRODUCTION IN COURT ARE THAT THE STORY WAS FALSE OR THAT THE
CONFESSION WAS OBTAINED UNDER CIRCUMSTANCES WHICH MADE IT INADMISSIBLE
OR ITS USE INEXPEDIENT.  FN4 

IF THE PROSECUTOR IN THE COURTROOM HAD TOLD THE JURY THAT THE ACCUSED
HAD CONFESSED BUT DID NOT OFFER TO PROVE THE CONFESSION, THE COURT
WOULD UNDOUBTEDLY HAVE DECLARED A MISTRIAL AND CITED THE ATTORNEY FOR
CONTEMPT.  IF A CONFESSION HAD BEEN OFFERED IN COURT, THE DEFENDANT
WOULD HAVE HAD THE RIGHT TO BE CONFRONTED BY THE PERSONS WHO CLAIMED TO
HAVE WITNESSED IT, TO CROSS-EXAMINE THEM, AND TO CONTRADICT THEIR
TESTIMONY.  IF THE COURT HAD ALLOWED AN INVOLUNTARY CONFESSION TO BE
PLACED BEFORE THE JURY, WE WOULD NOT HESITATE TO CONSIDER IT A DENIAL
OF DUE PROCESS OF LAW AND REVERSE.  WHEN SUCH EVENTS TAKE PLACE IN THE
COURTROOM, DEFENDANT'S COUNSEL CAN MEET THEM WITH EVIDENCE, ARGUMENTS,
AND REQUESTS FOR INSTRUCTIONS, AND CAN AT LEAST PRESERVE HIS OBJECTIONS
ON THE RECORD. 

BUT NEITHER COUNSEL NOR COURT CAN CONTROL THE ADMISSION OF EVIDENCE
IF UNPROVEN, AND PROBABLY UNPROVABLE, "CONFESSIONS" ARE PUT BEFORE THE
JURY BY NEWSPAPERS AND RADIO.  RIGHTS OF THE DEFENDANT TO BE CONFRONTED
BY WITNESSES AGAINST HIM AND TO CROSS-EXAMINE THEM ARE THEREBY
CIRCUMVENTED.  IT IS HARD TO IMAGINE A MORE PREJUDICIAL INFLUENCE THAN
A PRESS RELEASE BY THE OFFICER OF THE COURT CHARGED WITH DEFENDANTS'
CUSTODY STATING THAT THEY HAD CONFESSED, AND HERE JUST SUCH A
STATEMENT, UNSWORN TO, UNSEEN, UNCROSS-EXAMINED AND UNCONTRADICTED, WAS
CONVEYED BY THE PRESS TO THE JURY. 

THIS COURT HAS RECENTLY GONE A LONG WAY TO DISABLE A TRIAL JUDGE FROM
DEALING WITH PRESS INTERFERENCE WITH THE TRIAL PROCESS, CRAIG V.
HARNEY, 331 U.S. 367; PENNEKAMP V. FLORIDA, 328 U.S. 331; BRIDGES V.
CALIFORNIA, 314 U.S. 252, THOUGH IT IS TO BE NOTED THAT NONE OF THESE
CASES INVOLVED A TRIAL BY JURY.  AND THE COURT, BY STRICT CONSTRUCTION
OF AN ACT OF CONGRESS, HAS HELD NOT TO BE CONTEMPTUOUS ANY KIND OF
INTERFERENCE UNLESS IT TAKES PLACE IN THE IMMEDIATE PRESENCE OF THE
COURT, NYE V. UNITED STATES, 313 U.S. 33, THE LAST PLACE WHERE A WELL
CALCULATED OBSTRUCTION OF JUSTICE WOULD BE ATTEMPTED.  NO DOUBT THIS
TRIAL JUDGE FELT HELPLESS TO GIVE THE ACCUSED ANY REAL PROTECTION
AGAINST THIS OUT-OF-COURT CAMPAIGN TO CONVICT.  BUT IF FREEDOMS OF
PRESS ARE SO ABUSED AS TO MAKE FAIR TRIAL IN THE LOCALITY IMPOSSIBLE,
THE JUDICIAL PROCESS MUST BE PROTECTED BY REMOVING THE TRIAL TO A FORUM
BEYOND ITS PROBABLE INFLUENCE.  NEWSPAPERS, IN THE ENJOYMENT OF THEIR
CONSTITUTIONAL RIGHTS, MAY NOT DEPRIVE ACCUSED PERSONS OF THEIR RIGHT
TO FAIR TRIAL.  THESE CONVICTIONS, ACCOMPANIED BY SUCH EVENTS, DO NOT
MEET ANY CIVILIZED CONCEPTION OF DUE PROCESS OF LAW.  THAT ALONE IS
SUFFICIENT, TO MY MIND, TO WARRANT REVERSAL. 

BUT THAT IS NOT ALL.  OF COURSE, SUCH A CRIME STIRRED DEEP FEELING
AND WAS EXPLOITED TO THE LIMIT BY THE PRESS.  THESE DEFENDANTS WERE
FIRST TAKEN TO THE COUNTY JAIL OF LAKE COUNTY.  A MOB GATHERED AND
DEMANDED THAT DEFENDANTS BE TURNED OVER TO IT.  BY ORDER OF COURT, THEY
WERE QUICKLY TRANSFERRED FOR SAFEKEEPING TO THE STATE PRISON, WHERE
THEY REMAINED UNTIL ABOUT TWO WEEKS BEFORE THE TRIAL.  MEANWHILE, A MOB
BURNED THE HOME OF DEFENDANT SHEPHERD'S FATHER AND MOTHER AND TWO OTHER
NEGRO HOUSES.  NEGROES WERE REMOVED FROM THE COMMUNITY TO PREVENT THEIR
BEING LYNCHED.  THE NATIONAL GUARD WAS CALLED OUT ON JULY 17 AND 18
AND, ON JULY 19, THE 116TH FIELD ARTILLERY WAS SUMMONED FROM TAMPA. 
THE NEGROES OF THE COMMUNITY ABANDONED THEIR HOMES AND FLED. 

EVERY DETAIL OF THESE PASSION-AROUSING EVENTS WAS REPORTED BY THE
PRESS UNDER SUCH HEADLINES AS, "NIGHT RIDERS BURN LAKE NEGRO HOMES" AND
"FLAMES FROM NEGRO HOMES LIGHT NIGHT SKY IN LAKE COUNTY."  THESE AND
MANY OTHER ARTICLES WERE HIGHLY PREJUDICIAL, INCLUDING A CARTOON
PUBLISHED AT THE TIME OF THE GRAND JURY, PICTURING FOUR ELECTRIC CHAIRS
AND HEADED, "NO COMPROMISE - SUPREME PENALTY." 

COUNSEL FOR DEFENDANTS MADE TWO MOTIONS, ONE TO DEFER THE TRIAL UNTIL
THE PASSION HAD DIED OUT AND THE OTHER FOR A CHANGE OF VENUE.  THESE
WERE DENIED.  THE SUPREME COURT OF FLORIDA, IN AFFIRMING THE
CONVICTION, OBSERVED THAT "THE INFLAMED PUBLIC SENTIMENT WAS AGAINST
THE CRIME WITH WHICH THE APPELLANTS WERE CHARGED RATHER THAN
DEFENDANTS' RACE."  FN5  SUCH AN ESTIMATE SEEMS MORE CHARITABLE THAN
REALISTIC, AND I CANNOT AGREE THAT THE PREJUDICE HAD SUBSIDED AT THE
TIME OF TRIAL. 

THE TRIAL JUDGE, ANXIOUS TO ASSURE AS FAIR A TRIAL AS POSSIBLE UNDER
THE CIRCUMSTANCES, WAS EVIDENTLY CONCERNED ABOUT VIOLENCE AT THE
TRIAL.  HE PROMULGATED SPECIAL RULES WHICH LIMITED THE NUMBER OF
VISITORS TO THOSE THAT COULD BE SEATED, ALLOWED NO ONE TO STAND OR
LOITER IN HALLWAYS, STAIRWAYS, AND PARTS OF THE COURTHOUSE FOR THIRTY
MINUTES BEFORE COURT CONVENED AND AFTER IT RECESSED, CLOSED THE
ELAVATORS EXCEPT TO OFFICERS OF THE COURT OR INDIVIDUALS TO WHOM THE
SHERIFF GAVE SPECIAL PERMIT, REQUIRED EACH PERSON ENTERING THE
COURTROOM TO SUBMIT TO SEARCH, PROHIBITED ANY PERSON FROM TAKING A
"VALISE, SATCHEL, BAG, BASKET, BOTTLE, JAR, JUG, BUCKET, PACKAGE,
BUNDLE, OR OTHER SUCH ITEM" TO THE COURTROOM FLOOR OF THE COURTHOUSE,
ALLOWED CRUTCHES, CANES AND WALKING STICKS ONLY AFTER INSPECTION BY THE
SHERIFF SHOWED THEM TO BE NECESSARY AIDS, PROHIBITED DEMONSTRATIONS OF
ANY NATURE AND MADE VARIOUS OTHER REGULATIONS, ALL OF WHICH THE SHERIFF
WAS CHARGED TO ENFORCE AND TO THAT END WAS AUTHORIZED TO EMPLOY SUCH
NUMBER OF DEPUTIES AS MIGHT BE NECESSARY.  SUCH PRECAUTIONS, HOWEVER
COMMENDABLE, SHOW THE REACTION THAT THE ATMOSPHERE WHICH PERMEATED THE
TRIAL CREATED IN THE MIND OF THE TRIAL JUDGE. 

THE SITUATION PRESENTED BY THIS RECORD IS NOT DIFFERENT, IN
ESSENTIALS, FROM THAT WHICH WAS FOUND A DENIAL OF DUE PROCESS IN MOORE
V. DEMPSEY, 261 U.S. 86.  UNDER THESE CIRCUMSTANCES, FOR THE COURT TO
REVERSE THESE CONVICTIONS UPON THE SOLE GROUND THAT THE METHOD OF JURY
SELECTION DISCRIMINATED AGAINST THE NEGRO RACE, IS TO STRESS THE
TRIVIAL AND IGNORE THE IMPORTANT.  WHILE THIS RECORD DISCLOSES
DISCRIMINATION WHICH UNDER NORMAL CIRCUMSTANCES MIGHT BE PREJUDICIAL,
THIS TRIAL TOOK PLACE UNDER CONDITIONS AND WAS ACCOMPANIED BY EVENTS
WHICH WOULD DENY DEFENDANTS A FAIR TRIAL BEFORE ANY KIND OF JURY.  I DO
NOT SEE, AS A PRACTICAL MATTER, HOW ANY NEGRO ON THE JURY WOULD HAVE
DARED TO CAUSE A DISAGREEMENT OR ACQUITTAL.  THE ONLY CHANCE THESE
NEGROES HAD OF ACQUITTAL WOULD HAVE BEEN IN THE COURAGE AND DECENCY OF
SOME STURDY AND FORTHRIGHT WHITE PERSON OF SUFFICIENT STANDING TO FACE
AND LIVE DOWN THE ODIUM AMONG HIS WHITE NEIGHBORS THAT SUCH A VOTE, IF
REQUIRED, WOULD HAVE BROUGHT.  TO ME, THE TECHNICAL QUESTION OF
DISCRIMINATION IN THE JURY SELECTION HAS ONLY THEORETICAL IMPORTANCE. 
THE CASE PRESENTS ONE OF THE BEST EXAMPLES OF ONE OF THE WORST MENACES
TO AMERICAN JUSTICE.  IT IS ON THAT GROUND THAT I WOULD REVERSE. 

FN1  A RECOMMENDATION OF MERCY WAS MADE AS TO DEFENDANT CHARLES
GREENLEE, A MINOR, AND HE DOES NOT APPEAL.  THE FOURTH SUSPECT, ERNEST
THOMAS, WAS KILLED RESISTING ARREST. 

FN2  46 SO.2D 880, 885. 

FN3  AN EDITOR, EXPLAINING THE SOURCE OF A STATEMENT IN AN ARTICLE IN
HIS PAPER THAT ALL THREE NEGROES HAD CONFESSED, SAID: "(THE)
INFORMATION IS BASED ON ARTICLES IN THE VARIOUS DAILY PAPERS, AND
PERSONAL CONVERSATIONS I HAD WITH PEOPLE GENERALLY.  ...  (IF) ARTICLES
APPEAR IN THOSE PAPERS THAT HAVE STOOD THE TEST TWO OR THREE DAYS
WITHOUT DENIAL OR CORRECTION, BASED ON MY PREVIOUS EXPERIENCE AS AN
EDITOR, I ASSUME THEM TO BE TRUE.  THE ARTICLE YOU CALLED MY ATTENTION
TO APPEARED TO THE BEST OF MY RECOLLECTION IN A NUMBER OF DAILY PAPERS
AND WAS NOT DENIED FOR A PERIOD OF THREE DAYS.  I DON'T THINK THEY WERE
EVER DENIED." 

FN4  THE DEFENSE OFFERED, AND THE COURT REJECTED AS COMPLETELY
IRRELEVANT AND IMMATERIAL, EVIDENCE OF BRUTAL, INHUMAN BEATINGS OF
DEFENDANTS BY STATE OFFICERS IN WHOSE CUSTODY THEY WERE HELD. 

FN5  46 SO.2D AT 883. 
..END :






UNITED STATES V. LEWIS, 340 U.S. 590 


NO. 347.  ARGUED MARCH 2, 1951.  - DECIDED MARCH 26, 1951.  - 117 CT.
CL. 336, 91 F.SUPP.  1017, REVERSED. 


IN HIS 1944 INCOME TAX RETURN, RESPONDENT REPORTED $22,000 RECEIVED
THAT YEAR AS AN EMPLOYEE'S BONUS, WHICH HE CLAIMED IN GOOD FAITH AND
USED UNCONDITIONALLY AS HIS OWN.  IN SUBSEQUENT LITIGATION, IT WAS
DECIDED THAT THE BONUS HAD BEEN COMPUTED IMPROPERLY; AND, UNDER
COMPULSION OF A JUDGMENT, RESPONDENT RETURNED $11,000 TO HIS EMPLOYER
IN 1946.  HE THEN SUED IN THE COURT OF CLAIMS FOR REFUND OF AN ALLEGED
OVERPAYMENT OF HIS 1944 INCOME TAX.  HELD:  UNDER THE "CLAIM OF RIGHT"
DOCTRINE ANNOUNCED IN NORTH AMERICAN OIL V. BURNET, 286 U.S. 417, THE
ENTIRE $22,000 WAS INCOME IN 1944, AND RESPONDENT WAS NOT ENTITLED TO
RECOMPUTE HIS 1944 TAX.  PP. 590-592. 

UNITED STATES V. LEWIS. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE CASE IS STATED IN THE OPINION.  THE JUDGMENT BELOW IS REVERSED,
P. 592. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT LEWIS BROUGHT THIS ACTION IN THE COURT OF CLAIMS SEEKING A
REFUND OF AN ALLEGED OVERPAYMENT OF HIS 1944 INCOME TAX.  THE FACTS
FOUND BY THE COURT OF CLAIMS ARE:  IN HIS 1944 INCOME TAX RETURN,
RESPONDENT REPORTED ABOUT $22,000 WHICH HE HAD RECEIVED THAT YEAR AS AN
EMPLOYEE'S BONUS.  AS A RESULT OF SUBSEQUENT LITIGATION IN A STATE
COURT, HOWEVER, IT WAS DECIDED THAT RESPONDENT'S BONUS HAD BEEN
IMPROPERLY COMPUTED; UNDER COMPULSION OF THE STATE COURT'S JUDGMENT HE
RETURNED APPROXIMATELY $11,000 TO HIS EMPLOYER.  UNTIL PAYMENT OF THE
JUDGMENT IN 1946, RESPONDENT HAD AT ALL TIMES CLAIMED AND USED THE FULL
$22,000 UNCONDITIONALLY AS HIS OWN, IN THE GOOD FAITH THOUGH "MISTAKEN"
BELIEF THAT HE WAS ENTITLED TO THE WHOLE BONUS. 

ON THE FOREGOING FACTS THE GOVERNMENT'S POSITION IS THAT RESPONDENT'S
1944 TAX SHOULD NOT BE RECOMPUTED, BUT THAT RESPONDENT SHOULD HAVE
DEDUCTED THE $11,000 AS A LOSS IN HIS 1946 TAX RETURN.  SEE G.C.M.
16730, XV-1 CUM. BULL.  179(1936).  THE COURT OF CLAIMS, HOWEVER,
RELYING ON ITS OWN CASE, GREENWALD V. UNITED STATES, 102 CT. CL. 272,
57 F.SUPP.  569, HELD THAT THE EXCESS BONUS RECEIVED "UNDER A MISTAKE
OF FACT" WAS NOT INCOME IN 1944 AND ORDERED A REFUND BASED ON A
RECALCULATION OF THAT YEAR'S TAX.  117 CT. CL. 336, 91 F.SUPP.  1017. 
WE GRANTED CERTIORARI, 340 U.S. 903, BECAUSE THIS HOLDING CONFLICTED
WITH MANY DECISIONS OF THE COURTS OF APPEALS, SEE, E.G., HABERKORN V.
UNITED STATES, 173 F.2D 587, AND WITH PRINCIPLES ANNOUNCED IN NORTH
AMERICAN OIL V. BURNET, 286 U.S. 417. 

IN THE NORTH AMERICAN OIL CASE WE SAID:  "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 424.  NOTHING IN THIS LANGUAGE PERMITS AN
EXCEPTION MERELY BECAUSE A TAXPAYER IS "MISTAKEN" AS TO THE VALIDITY OF
HIS CLAIM.  NOR HAS THE "CLAIM OF RIGHT" DOCTRINE BEEN IMPAIRED, AS THE
COURT OF CLAIMS STATED, BY FREULER V. HELVERING, 291 U.S. 35, OR
COMMISSIONER V. WILCOX, 327 U.S. 404.  THE FREULER CASE INVOLVED AN
ENTIRELY DIFFERENT SECTION OF THE INTERNAL REVENUE CODE, AND ITS
HOLDING IS INAPPLICABLE HERE.  291 U.S. AT 43.  AND IN COMMISSIONER V.
WILCOX, SUPRA, WE HELD THAT RECEIPTS FROM EMBEZZLEMENT DID NOT
CONSTITUTE INCOME, DISTINGUISHING NORTH AMERICAN OIL ON THE GROUND THAT
AN EMBEZZLER ASSERTS NO "BONA FIDE LEGAL OR EQUITABLE CLAIM."  327 U.S.
AT 408. 

INCOME TAXES MUST BE PAID ON INCOME RECEIVED (OR ACCRUED) DURING AN
ANNUAL ACCOUNTING PERIOD.  CF. I.R.C., SECS. 41, 42; AND SEE BURNET V.
SANFORD & BROOKS CO., 282 U.S. 359, 363.  THE "CLAIM OF RIGHT"
INTERPRETATION OF THE TAX LAWS HAS LONG BEEN USED TO GIVE FINALITY TO
THAT PERIOD, AND IS NOW DEEPLY ROOTED IN THE FEDERAL TAX SYSTEM.  SEE
CASES COLLECTED IN 2 MERTENS, LAW OF FEDERAL INCOME TAXATION, SEC.
12.103.  WE SEE NO REASON WHY THE COURT SHOULD DEPART FROM THIS WELL
SETTLED INTERPRETATION MERELY BECAUSE IT RESULTS IN AN ADVANTAGE OR
DISADVANTAGE TO A TAXPAYER.* REVERSED. 

*IT HAS BEEN SUGGESTED THAT IT WOULD BE MORE "EQUITABLE" TO REOPEN
RESPONDENT'S 1944 TAX RETURN.  WHILE THE SUGGESTION MIGHT WORK TO THE
ADVANTAGE OF THIS TAXPAYER, IT COULD NOT BE ADOPTED AS A GENERAL
SOLUTION BECAUSE, IN MANY CASES, THE THREE-YEAR STATUTE OF LIMITATIONS
WOULD PRECLUDE RECOVERY.  I.R.C., SEC. 322(B). 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE QUESTION IN THIS CASE IS NOT WHETHER THE BONUS HAD TO BE INCLUDED
IN 1944 INCOME FOR PURPOSES OF THE TAX.  PLAINLY IT SHOULD HAVE BEEN
BECAUSE THE TAXPAYER CLAIMED IT AS OF RIGHT.  SOME YEARS LATER,
HOWEVER, IT WAS JUDICIALLY DETERMINED THAT HE HAD NO CLAIM TO THE
BONUS.  THE QUESTION IS WHETHER HE MAY THEN GET BACK THE TAX WHICH HE
PAID ON THE MONEY. 

MANY INEQUITIES ARE INHERENT IN THE INCOME TAX.  WE MULTIPLY THEM
NEEDLESSLY BY NICE DISTINCTIONS WHICH HAVE NO PLACE IN THE PRACTICAL
ADMINISTRATION OF THE LAW.  IF THE REFUND WERE ALLOWED, THE INTEGRITY
OF THE TAXABLE YEAR WOULD NOT BE VIOLATED.  THE TAX WOULD BE PAID WHEN
DUE; BUT THE GOVERNMENT WOULD NOT BE PERMITTED TO MAINTAIN THE
UNCONSCIONABLE POSITION THAT IT CAN KEEP THE TAX AFTER IT IS SHOWN THAT
PAYMENT WAS MADE ON MONEY WHICH WAS NOT INCOME TO THE TAXPAYER. 
..END :


















62 CASES OF JAM V. UNITED STATES, 340 U.S. 593 


NO. 363.  ARGUED MARCH 5-6, 1951.  - DECIDED MARCH 26, 1951.  - 183 F.2D
1014, REVERSED. 


UNDER SEC. 304 OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, AS
AMENDED, THE GOVERNMENT FILED A LIBEL TO CONDEMN 62 CASES OF A PRODUCT
WHICH CLOSELY RESEMBLED FRUIT JAM IN APPEARANCE AND TASTE, CLAIMING
THAT IT WAS "MISBRANDED" WITHIN THE MEANING OF SEC. 403(G).  THE
PRODUCT DID NOT MEET THE STANDARDS FOR FRUIT JAM PRESCRIBED IN THE
REGULATIONS ISSUED UNDER SEC. 401 AND INCORPORATED BY REFERENCE IN SEC.
403(G); BUT IT WAS WHOLESOME AND FIT FOR HUMAN CONSUMPTION, WAS PLAINLY
LABELED AS "IMITATION" IN COMPLIANCE WITH SEC. 403(C), AND WAS SOLD AS
"IMITATION JAM," WITHOUT ANY EFFORT TO MISREPRESENT IT AS GENUINE FRUIT
JAM.  HELD:  IT WAS NOT "MISBRANDED" WITHIN THE MEANING OF SEC. 403. 
FEDERAL SECURITY ADMINISTRATOR V. QUAKER OATS CO., 318 U.S. 218,
DISTINGUISHED.  PP. 593-601. 

62 CASES OF JAM ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

ON A LIBEL BY THE UNITED STATES AGAINST CERTAIN FOOD PRODUCTS UNDER
SEC. 304 OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, THE DISTRICT
COURT HELD THAT THEY WERE NOT "MISBRANDED" WITHIN THE MEANING OF SEC.
403.  87 F.SUPP.  735.  THE COURT OF APPEALS REVERSED.  183 F.2D 1014. 
THIS COURT GRANTED CERTIORARI.  340 U.S. 890.  REVERSED, P. 601. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL FOOD, DRUG, AND COSMETIC ACT AUTHORIZES THE UNITED STATES
TO BRING A LIBEL AGAINST ANY ARTICLE OF FOOD WHICH IS "MISBRANDED" WHEN
USING THE CHANNELS OF INTERSTATE COMMERCE.  ACT OF JUNE 25, 1938, SEC.
304, 52 STAT. 1040, 1044, 21 U.S.C. SEC. 334.  THE ACT DEFINES
"MISBRANDED" IN THE ELEVEN PARAGRAPHS OF SEC. 403.  52 STAT. 1047-1048,
21 U.S.C. SEC. 343.  THE QUESTION BEFORE US IS RAISED BY TWO APPARENTLY
CONFLICTING PARAGRAPHS. 

ONE OF THEM, SUBSECTION (C), COMES FROM THE ORIGINAL PURE FOOD AND
DRUGS ACT OF 1906.  ACT OF JUNE 30, 1906; 34 STAT. 768, 770-771, SEC.
8(FIRST PARAGRAPH CONCERNING "FOOD," AND SECOND PROVISO).  IT DIRECTS
THAT A FOOD SHALL BE DEEMED "MISBRANDED" IF IT "IS AN IMITATION OF
ANOTHER FOOD, UNLESS ITS LABEL BEARS, IN TYPE OF UNIFORM SIZE AND
PROMINENCE, THE WORD 'IMITATION' AND, IMMEDIATELY THEREAFTER, THE NAME
OF THE FOOD IMITATED."  THE OTHER, SUBSECTION (G), WAS ADDED BY THE
ENLARGEMENT OF THE STATUTE IN 1938.  IT CONDEMNS AS "MISBRANDED" A
PRODUCT WHICH "PURPORTS TO BE OR IS REPRESENTED AS A FOOD," THE
INGREDIENTS OF WHICH THE ADMINISTRATOR HAS STANDARDIZED, IF THE PRODUCT
DOES NOT CONFORM IN ALL RESPECTS TO THE STANDARDS PRESCRIBED.  THE
ADMINISTRATOR HAS AUTHORITY TO PROMULGATE STANDARDS WHEN IN HIS
JUDGMENT "SUCH ACTION WILL PROMOTE HONESTY AND FAIR DEALING IN THE
INTEREST OF CONSUMERS."  SEC. 401, 52 STAT. 1046, 21 U.S.C. SEC. 341. 

THE PROCEEDING BEFORE US WAS COMMENCED IN 1949 IN THE DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO.  BY IT THE UNITED STATES SEEKS TO
CONDEMN 62 CASES OF "DELICIOUS BRAND IMITATION JAM," MANUFACTURED IN
COLORADO AND SHIPPED TO NEW MEXICO.  THE GOVERNMENT CLAIMS THAT THIS
PRODUCT "PURPORTS" TO BE FRUIT JAM, A FOOD FOR WHICH THE FEDERAL
SECURITY ADMINISTRATOR HAS PROMULGATED A "DEFINITION AND STANDARD OF
IDENTITY."  THE REGULATION SPECIFIES THAT A FRUIT JAM MUST CONTAIN "NOT
LESS THAN 45 PARTS BY WEIGHT" OF THE FRUIT INGREDIENT.  21 C.F.R. (1949
ED.)  SEC.  29.0.  THE PRODUCT IN QUESTION IS COMPOSED OF 55% SUGAR,
25% FRUIT, 20% PECTIN, AND SMALL AMOUNTS OF CITRIC ACID AND SODA. 
THESE SPECIFICATIONS SHOW THAT PECTIN, A GELATINIZED SOLUTION
CONSISTING LARGELY OF WATER, HAS BEEN SUBSTITUTED FOR A SUBSTANTIAL
PROPORTION OF THE FRUIT REQUIRED.  THE GOVERNMENT CONTENDS THAT THE
PRODUCT IS THEREFORE TO BE DEEMED "MISBRANDED" UNDER SEC. 403(G). 

ON THE BASIS OF STIPULATED TESTIMONY THE DISTRICT JUDGE FOUND THAT
ALTHOUGH THE PRODUCT SEIZED DID NOT MEET THE PRESCRIBED STANDARDS FOR
FRUIT JAM, IT WAS "WHOLESOME" AND "IN EVERY WAY FIT FOR HUMAN
CONSUMPTION."  IT WAS FOUND TO HAVE THE APPEARANCE AND TASTE OF
STANDARDIZED JAM, AND TO BE USED AS A LESS EXPENSIVE SUBSTITUTE FOR THE
STANDARD PRODUCT.  IN SOME INSTANCES, PRODUCTS SIMILAR TO THOSE SEIZED
WERE SOLD AT RETAIL TO THE PUBLIC IN RESPONSE TO TELEPHONE ORDERS FOR
JAMS, AND WERE SERVED TO PATRONS OF RESTAURANTS, RANCHES AND SIMILAR
ESTABLISHMENTS, WHO HAD NO OPPORTUNITY TO LEARN THE QUALITY OF WHAT
THEY RECEIVED.  BUT THERE IS NO SUGGESTION OF MISREPRESENTATION.  THE
JUDGE FOUND THAT THE LABELS ON THE SEIZED JARS WERE SUBSTANTIALLY
ACCURATE; AND HE CONCLUDED THAT SINCE THE PRODUCT PURPORTED TO BE ONLY
AN IMITATION FRUIT PRESERVE AND COMPLIED IN ALL RESPECTS WITH
SUBSECTION (C) OF SEC. 403 OF THE ACT, IT COULD NOT BE DEEMED
"MISBRANDED."  87 F.SUPP.  735. 

THE COURT OF APPEALS FOR THE TENTH CIRCUIT, ONE JUDGE DISSENTING,
REVERSED THIS JUDGMENT.  183 F.2D 1014.  IT HELD THAT SINCE THE PRODUCT
SEIZED CLOSELY RESEMBLED FRUIT JAM IN APPEARANCE AND TASTE, AND WAS
USED AS A SUBSTITUTE FOR THE STANDARDIZED FOOD, IT "PURPORTED" TO BE
FRUIT JAM, AND MUST BE DEEMED "MISBRANDED" NOTWITHSTANDING THAT IT WAS
DULY LABELED AN "IMITATION."  THE COURT THEREFORE REMANDED THE CAUSE
WITH INSTRUCTIONS TO ENTER A JUDGMENT FOR CONDEMNATION.  WE GRANTED
CERTIORARI, 340 U.S. 890, BECAUSE OF THE IMPORTANCE OF THE QUESTION IN
THE ADMINISTRATION OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT. 

1.  BY THE ACT OF 1906, 34 STAT. 768, AS SUCCESSIVELY STRENGTHENED,
CONGRESS EXERTED ITS POWER TO KEEP IMPURE AND ADULTERATED FOODS AND
DRUGS OUT OF THE CHANNELS OF COMMERCE.  THE PURPOSES OF THIS
LEGISLATION, WE HAVE SAID, "TOUCH PHASES OF THE LIVES AND HEALTH OF
PEOPLE WHICH, IN THE CIRCUMSTANCES OF MODERN INDUSTRIALISM, ARE LARGELY
BEYOND SELF-PROTECTION.  REGARD FOR THESE PURPOSES SHOULD INFUSE
CONSTRUCTION OF THE LEGISLATION IF IT IS TO BE TREATED AS A WORKING
INSTRUMENT OF GOVERNMENT AND NOT MERELY AS A COLLECTION OF ENGLISH
WORDS."  UNITED STATES V. DOTTERWEICH, 320 U.S. 277, 280.  THIS IS THE
ATTITUDE WITH WHICH WE SHOULD APPROACH THE PROBLEM OF STATUTORY
CONSTRUCTION NOW PRESENTED.  BUT OUR PROBLEM IS TO CONSTRUE WHAT
CONGRESS HAS WRITTEN.  AFTER ALL, CONGRESS EXPRESSES ITS PURPOSE BY
WORDS.  IT IS FOR US TO ASCERTAIN - NEITHER TO ADD NOR TO SUBTRACT,
NEITHER TO DELETE NOR TO DISTORT. 

2.  MISBRANDING WAS ONE OF THE CHIEF EVILS CONGRESS SOUGHT TO STOP. 
IT WAS BOTH WITHIN THE RIGHT AND THE WISDOM OF CONGRESS NOT TO TRUST TO
THE COLLOQUIAL OR THE DICTIONARY MEANING OF MISBRANDING, BUT TO WRITE
ITS OWN.  CONCEDEDLY WE ARE NOT DEALING HERE WITH MISBRANDING IN ITS
CRUDE MANIFESTATIONS, WHAT WOULD COLLOQUIALLY BE DEEMED A FALSE
REPRESENTATION.  COMPARE SEC. 403(A), (B), (D), 52 STAT. 1047, 21
U.S.C. SEC. 343(A), (B), (D).  OUR CONCERN IS WHETHER THE ARTICLE OF
FOOD SOLD AS "DELICIOUS BRAND IMITATION JAM" IS "DEEMED TO BE
MISBRANDED" ACCORDING TO SEC. 403(C) AND (G) OF THE FEDERAL FOOD, DRUG,
AND COSMETIC ACT OF 1938. 

3.  THE CONTROLLING PROVISIONS OF THE ACT ARE AS FOLLOWS: 

"SEC. 304.  (A)(AS AMENDED BY THE ACT OF JUNE 24, 1948, 62 STAT. 582)
ANY ARTICLE OF FOOD, DRUG, DEVICE, OR COSMETIC THAT IS ADULTERATED OR
MISBRANDED WHEN INTRODUCED INTO OR WHILE IN INTERSTATE COMMERCE OR
WHILE HELD FOR SALE (WHETHER OR NOT THE FIRST SALE) AFTER SHIPMENT IN
INTERSTATE COMMERCE,  ...  SHALL BE LIABLE TO BE PROCEEDED AGAINST
WHILE IN INTERSTATE COMMERCE, OR AT ANY TIME THEREAFTER, ON LIBEL OF
INFORMATION AND CONDEMNED IN ANY DISTRICT COURT OF THE UNITED STATES
WITHIN THE JURISDICTION OF WHICH THE ARTICLE IS FOUND:  ... 

     .         .    .         .         . 

"SEC. 401.  WHENEVER IN THE JUDGMENT OF THE (ADMINISTRATOR) SUCH
ACTION WILL PROMOTE HONESTY AND FAIR DEALING IN THE INTEREST OF
CONSUMERS, HE SHALL PROMULGATE REGULATIONS FIXING AND ESTABLISHING FOR
ANY FOOD, UNDER ITS COMMON OR USUAL NAME SO FAR AS PRACTICABLE, A
REASONABLE DEFINITION AND STANDARD OF IDENTITY, A REASONABLE STANDARD
OF QUALITY, AND/OR REASONABLE STANDARDS OF FILL OF CONTAINER:  ...  IN
PRESCRIBING A DEFINITION AND STANDARD OF IDENTITY FOR ANY FOOD OR CLASS
OF FOOD IN WHICH OPTIONAL INGREDIENTS ARE PERMITTED, THE
(ADMINISTRATOR) SHALL, FOR THE PURPOSE OF PROMOTING HONESTY AND FAIR
DEALING IN THE INTEREST OF CONSUMERS, DESIGNATE THE OPTIONAL
INGREDIENTS WHICH SHALL BE NAMED ON THE LABEL.  ... 

.         .         .         .         . 

"SEC. 403.  A FOOD SHALL BE DEEMED TO BE MISBRANDED 

     .         .      .         .         . 

"(C)  IF IT IS AN IMITATION OF ANOTHER FOOD, UNLESS ITS LABEL BEARS,
IN TYPE OF UNIFORM SIZE AND PROMINENCE, THE WORD 'IMITATION' AND,
IMMEDIATELY THEREAFTER, THE NAME OF THE FOOD IMITATED. 

     .         . .         .         . 

"(G)  IF IT PURPORTS TO BE OR IS REPRESENTED AS A FOOD FOR WHICH A
DEFINITION AND STANDARD OF IDENTITY HAS BEEN PRESCRIBED BY REGULATIONS
AS PROVIDED BY SECTION 401, UNLESS (1) IT CONFORMS TO SUCH DEFINITION
AND STANDARD, AND (2) ITS LABEL BEARS THE NAME OF THE FOOD SPECIFIED IN
THE DEFINITION AND STANDARD, AND, INSOFAR AS MAY BE REQUIRED BY SUCH
REGULATIONS, THE COMMON NAMES OF OPTIONAL INGREDIENTS (OTHER THAN
SPICES, FLAVORING, AND COLORING) PRESENT IN SUCH FOOD." 

4.  BY SECS. 401 AND 403(G), CONGRESS VESTED IN THE ADMINISTRATOR THE
FAR-REACHING POWER OF FIXING FOR ANY SPECIES OF FOOD "A REASONABLE
DEFINITION AND STANDARD OF IDENTITY."  IN FEDERAL SECURITY
ADMINISTRATOR V. QUAKER OATS CO., 318 U.S. 218, WE HELD THAT THIS MEANS
THAT THE ADMINISTRATOR MAY, BY REGULATION, FIX THE INGREDIENTS OF ANY
FOOD, AND THAT THEREAFTER A COMMODITY CANNOT BE INTRODUCED INTO
INTERSTATE COMMERCE WHICH "PURPORTS TO BE OR IS REPRESENTED AS" THE
FOOD WHICH HAS BEEN THUS DEFINED UNLESS IT IS COMPOSED OF THE REQUIRED
INGREDIENTS.  THE ADMINISTRATOR HAD PRESCRIBED THE INGREDIENTS OF TWO
DIFFERENT SPECIES OF FOOD - "FARINA" AND "ENRICHED FARINA."  THE FORMER
WAS AN EXCLUSIVELY MILLED WHEAT PRODUCT; THE LATTER INCLUDED CERTAIN
ADDITIONAL INGREDIENTS, ONE OF WHICH OPTIONALLY COULD BE VITAMIN D. THE
QUAKER OATS COMPANY MARKETED A PRODUCT IT CALLED "QUAKER FARINA WHEAT
CEREAL ENRICHED WITH VITAMIN D," WHICH DID NOT CONFORM TO EITHER
STANDARD.  BECAUSE IT CONTAINED AN ADDITIONAL VITAMIN IT WAS NOT
"FARINA"; BECAUSE IT LACKED CERTAIN OF THE ESSENTIAL INGREDIENTS IT
COULD NOT BE CALLED "ENRICHED FARINA."  IT WAS CONCEDEDLY A WHOLESOME
PRODUCT, ACCURATELY LABELED; BUT UNDER THE ADMINISTRATOR'S REGULATIONS
IT COULD NOT BE SOLD.  WE SUSTAINED THE REGULATIONS, HOLDING THAT
CONGRESS HAD CONSTITUTIONALLY EMPOWERED THE ADMINISTRATOR TO DEFINE A
FOOD AND HAD THEREBY PRECLUDED MANUFACTURERS - OR COURTS - FROM
DETERMINING FOR THEMSELVES WHETHER SOME OTHER INGREDIENTS WOULD NOT
PRODUCE AS NUTRITIOUS A PRODUCT.  "THE STATUTORY PURPOSE TO FIX A
DEFINITION OF IDENTITY OF AN ARTICLE OF FOOD SOLD UNDER ITS COMMON OR
USUAL NAME WOULD BE DEFEATED IF PRODUCERS WERE FREE TO ADD INGREDIENTS,
HOWEVER WHOLESOME, WHICH ARE NOT WITHIN THE DEFINITION."  318 U.S. AT
232. 

5.  OUR DECISION IN THE QUAKER OATS CASE DOES NOT TOUCH THE PROBLEM
NOW BEFORE US.  IN THAT CASE IT WAS CONCEDED THAT ALTHOUGH THE QUAKER
PRODUCT DID NOT HAVE THE STANDARD INGREDIENTS, IT "PURPORTED" TO BE A
STANDARDIZED FOOD.  WE DID NOT THERE CONSIDER THE LEGALITY OF MARKETING
PROPERLY LABELED "IMITATION FARINA."  THAT WOULD BE THE COMPARABLE
QUESTION TO THE ONE NOW HERE. 

ACCORDING TO THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, NOTHING CAN BE
LEGALLY "JAM" AFTER THE ADMINISTRATOR PROMULGATED HIS REGULATION IN
1940, 5 FED. REG. 3554, 21 C.F.R. SEC. 29.0, UNLESS IT CONTAINS THE
SPECIFIED INGREDIENTS IN PRESCRIBED PROPORTION.  HENCE THE PRODUCT IN
CONTROVERSY IS NOT "JAM."  IT CANNOT LAWFULLY BE LABELED "JAM" AND
INTRODUCED INTO INTERSTATE COMMERCE, FOR TO DO SO WOULD "REPRESENT" AS
A STANDARDIZED FOOD A PRODUCT WHICH DOES NOT MEET PRESCRIBED
SPECIFICATIONS. 

BUT THE PRODUCT WITH WHICH WE ARE CONCERNED IS SOLD AS "IMITATION
JAM."  IMITATION FOODS ARE DEALT WITH IN SEC. 403(C) OF THE ACT.  IN
THAT SECTION CONGRESS DID NOT GIVE AN ESOTERIC MEANING TO "IMITATION." 
IT LEFT IT TO THE UNDERSTANDING OF ORDINARY ENGLISH SPEECH.  AND IT
DIRECTED THAT A PRODUCT SHOULD BE DEEMED "MISBRANDED" IF IT IMITATED
ANOTHER FOOD "UNLESS ITS LABEL BEARS, IN TYPE OF UNIFORM SIZE AND
PROMINENCE, THE WORD 'IMITATION' AND, IMMEDIATELY THEREAFTER, THE NAME
OF THE FOOD IMITATED." 

IN ORDINARY SPEECH THERE CAN BE NO DOUBT THAT THE PRODUCT WHICH THE
UNITED STATES HERE SEEKS TO CONDEMN IS AN "IMITATION" JAM.  IT LOOKS
AND TASTES LIKE JAM; IT IS UNEQUIVOCALLY LABELED "IMITATION JAM."  THE
GOVERNMENT DOES NOT ARGUE THAT ITS LABEL IN ANY WAY FALLS SHORT OF THE
REQUIREMENTS OF SEC. 403(C).  ITS DISTRIBUTION IN INTERSTATE COMMERCE
WOULD THEREFORE CLEARLY SEEM TO BE AUTHORIZED BY THAT SECTION.  WE
COULD HOLD IT TO BE "MISBRANDED" ONLY IF WE HELD THAT A PRACTICE
CONGRESS AUTHORIZED BY SEC. 403(C) CONGRESS IMPLIEDLY PROHIBITED BY
SEC. 403(G). 

WE SEE NO JUSTIFICATION SO TO DISTORT THE ORDINARY MEANING OF THE
STATUTE.  NOTHING IN THE TEXT OR HISTORY OF THE LEGISLATION POINTS TO
SUCH A READING OF WHAT CONGRESS WROTE.  IN SEC. 403(G) CONGRESS USED
THE WORDS "PURPORT" AND "REPRESENT" - TERMS SUGGESTING THE IDEA OF
COUNTERFEIT.  BUT THE NAME "IMITATION JAM" AT ONCE CONNOTES PRECISELY
WHAT THE PRODUCT IS:  A DIFFERENT, AN INFERIOR PRESERVE, NOT MEETING
THE DEFINED SPECIFICATIONS.  SECTION 403(G) WAS DESIGNED TO PROTECT THE
PUBLIC FROM INFERIOR FOODS RESEMBLING STANDARD PRODUCTS BUT MARKETED
UNDER DISTINCTIVE NAMES.  SEE S. REP. NO. 361, 74TH CONG., 1ST SESS. 8
11.  CONGRESS MAY WELL HAVE SUPPOSED THAT SIMILAR CONFUSION WOULD NOT
RESULT FROM THE MARKETING OF A PRODUCT CANDIDLY AND FLAGRANTLY LABELED
AS AN "IMITATION" FOOD.  A PRODUCT SO LABELED IS DESCRIBED WITH PRECISE
ACCURACY.  IT NEITHER CONVEYS ANY AMBIGUITY NOR EMANATES ANY UNTRUE
INNUENDO, AS WAS THE CASE WITH THE "BRED SPRED" CONSIDERED BY CONGRESS
IN ITS DELIBERATION ON SEC. 403(G).  SEE H.R. REP. NO. 2139, 75TH
CONG., 3D SESS. 5; HOUSE HEARINGS ON H.R. 6906, 8805, 8941 AND S. 5,
74TH CONG., 1ST SESS. 46-47.  IT PURPORTS AND IS REPRESENTED TO BE ONLY
WHAT IT IS - AN IMITATION.  IT DOES NOT PURPORT NOR REPRESENT TO BE
WHAT IT IS NOT - THE ADMINISTRATOR'S GENUINE "JAM."    IN OUR ANXIETY
TO EFFECTUATE THE CONGRESSIONAL PURPOSE OF PROTECTING THE PUBLIC, WE
MUST TAKE CARE NOT TO EXTEND THE SCOPE OF THE STATUTE BEYOND THE POINT
WHERE CONGRESS INDICATED IT WOULD STOP.  THE GOVERNMENT WOULD HAVE US
HOLD THAT WHEN THE ADMINISTRATOR STANDARDIZES THE INGREDIENTS OF A
FOOD, NO IMITATION OF THAT FOOD CAN BE MARKETED WHICH CONTAINS AN
INGREDIENT OF THE ORIGINAL AND SERVES A SIMILAR PURPOSE.  IF CONGRESS
WISHES TO SAY THAT NOTHING SHALL BE MARKETED IN LIKENESS TO A FOOD AS
DEFINED BY THE ADMINISTRATOR, THOUGH IT IS ACCURATELY LABELED, ENTIRELY
WHOLESOME, AND PERHAPS MORE WITHIN THE REACH OF THE MEAGER PURSE, OUR
DECISIONS INDICATE THAT CONGRESS MAY WELL DO SO.  BUT CONGRESS HAS NOT
SAID SO.  IT INDICATED THE CONTRARY.  INDEED, THE ADMINISTRATOR'S
CONTEMPORANEOUS CONSTRUCTION CONCEDEDLY IS CONTRARY TO WHAT HE NOW
CONTENDS.  WE MUST ASSUME HIS PRESENT MISCONCEPTION RESULTS FROM A
MISREADING OF WHAT WAS WRITTEN IN THE QUAKER OATS CASE.  REVERSED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE RESULT REACHED BY THE COURT MAY BE SOUND BY LEGISLATIVE
STANDARDS.  BUT THE LEGAL STANDARDS WHICH GOVERN US MAKE THE PROCESS OF
REACHING THAT RESULT TORTUOUS TO SAY THE LEAST.  WE MUST SAY THAT
PETITIONER'S "JAM" PURPORTS TO BE "JAM" WHEN WE READ SEC. 403(G) AND
PURPORTS TO BE NOT "JAM" BUT ANOTHER FOOD WHEN WE READ SEC. 403(C). 
YET IF PETITIONER'S PRODUCT DID NOT PURPORT TO BE "JAM" PETITIONER
WOULD HAVE NO CLAIM TO PRESS AND THE GOVERNMENT NO OBJECTION TO RAISE. 

..END :



















SPECTOR MOTOR SERVICE V. O'CONNOR, 340 U.S. 602 


NO. 132.  ARGUED NOVEMBER 29-30, 1950.  - REARGUED JANUARY 10, 1951.  -
DECIDED MARCH 26, 1951.  - 181 F.2D 150, REVERSED. 


1.  CONNECTICUT IMPOSES UPON THE FRANCHISES OF FOREIGN CORPORATIONS,
FOR THE PRIVILEGE OF DOING BUSINESS WITHIN THE STATE, A TAX COMPUTED AT
A NONDISCRIMINATORY RATE ON THAT PART OF THE CORPORATION'S NET INCOME
WHICH IS REASONABLY ATTRIBUTABLE TO ITS BUSINESS ACTIVITIES WITHIN THE
STATE.  THE TAX IS NOT LEVIED AS COMPENSATION FOR THE USE OF THE
HIGHWAYS OR COLLECTED IN LIEU OF AN AD VALOREM PROPERTY TAX.  IT IS NOT
A FEE FOR INSPECTION OR A TAX ON SALES OR USE.  HELD:  AS APPLIED TO A
FOREIGN CORPORATION WHICH WAS ENGAGED EXCLUSIVELY IN INTERSTATE
TRUCKING, THE TAX WAS INVALID UNDER THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  PP. 603-610. 

(A)  THE FACT THAT, IF SOME INTRASTATE COMMERCE WERE INVOLVED OR IF
AN APPROPRIATE TAX WERE IMPOSED AS COMPENSATION FOR THE CORPORATION'S
USE OF THE HIGHWAYS, THE SAME SUM OF MONEY AS IS AT ISSUE HERE MIGHT BE
LAWFULLY COLLECTED FROM THE CORPORATION, CANNOT SUSTAIN THE
CONSTITUTIONAL VALIDITY OF THE TAX.  PP. 607-608. 

(B)  WHETHER A STATE MAY VALIDLY MAKE INTERSTATE COMMERCE PAY ITS WAY
DEPENDS FIRST OF ALL UPON THE CONSTITUTIONAL CHANNEL THROUGH WHICH IT
ATTEMPTS TO DO SO.  P. 608. 

(C)  AS CONSTRUED BY THE STATE COURTS, THIS IS A TAX SOLELY ON THE
FRANCHISE OF PETITIONER TO DO A BUSINESS WHICH IS EXCLUSIVELY
INTERSTATE; AND SUCH A TAX CONTRAVENES THE COMMERCE CLAUSE, NO MATTER
HOW FAIRLY IT IS APPORTIONED TO BUSINESS DONE WITHIN THE STATE.  PP.
608-610. 

2.  THE FEDERAL DISTRICT COURT HAD JURISDICTION OF THIS CASE IN THE
FIRST INSTANCE BECAUSE OF THE UNCERTAINTY OF THE ADEQUACY OF A REMEDY
IN THE STATE COURTS, AND IT DID NOT LOSE THAT JURISDICTION BY VIRTUE OF
THE LATER CLARIFICATION OF THE PROCEDURE IN THE COURTS OF THE STATE. 
P. 605. 

SPECTOR MOTOR SERVICE, INC. V. O'CONNOR, TAX COMMISSIONER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE CASE IS STATED IN THE OPINION, PP. 603-605.  THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED, P. 610. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING ATTACKS, UNDER THE COMMERCE CLAUSE OF THE
CONSTITUTION OF THE UNITED STATES, THE VALIDITY OF A STATE TAX IMPOSED
UPON THE FRANCHISE OF A FOREIGN CORPORATION FOR THE PRIVILEGE OF DOING
BUSINESS WITHIN THE STATE WHEN (1) THE BUSINESS CONSISTS SOLELY OF
INTERSTATE COMMERCE, AND (2) THE TAX IS COMPUTED AT A NONDISCRIMINATORY
RATE ON THAT PART OF THE CORPORATION'S NET INCOME WHICH IS REASONABLY
ATTRIBUTABLE TO ITS BUSINESS ACTIVITIES WITHIN THE STATE.  FOR THE
REASONS HEREINAFTER STATED, WE HOLD THIS APPLICATION OF THE TAX
INVALID. 

PETITIONER, SPECTOR MOTOR SERVICE, INC., IS A MISSOURI CORPORATION
ENGAGED EXCLUSIVELY IN INTERSTATE TRUCKING.  IT INSTITUTED THIS ACTION
IN 1942 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT AGAINST THE TAX COMMISSIONER OF THAT STATE.  IT SOUGHT TO
ENJOIN COLLECTION OF ASSESSMENTS AND PENALTIES TOTALING $7,795.50,
WHICH HAD BEEN LEVIED AGAINST IT, FOR VARIOUS PERIODS BETWEEN JUNE 1,
1935, AND DECEMBER 31, 1940, UNDER THE CONNECTICUT CORPORATION BUSINESS
TAX ACT OF 1935 AND AMENDMENTS THERETO.  FN1  IT ASKED ALSO FOR A
DECLARATORY JUDGMENT AS TO ITS LIABILITY, IF ANY, UNDER THAT ACT.  IT
CLAIMED THAT THE TAX IMPOSED BY THE ACT DID NOT APPLY TO IT AND THAT,
IF IT DID, SUCH APPLICATION VIOLATED BOTH THE CONNECTICUT CONSTITUTION
AND THE COMMERCE AND DUE PROCESS CLAUSES OF THE UNITED STATES
CONSTITUTION.  FINALLY, IT ALLEGED THAT IT HAD NO PLAIN, SPEEDY AND
EFFICIENT REMEDY AT LAW OR IN EQUITY IN THE STATE COURTS  FN2  AND THAT
THE COLLECTION OF THE TAXES AND PENALTIES BY THE MEANS PROVIDED IN THE
STATUTE WOULD CAUSE IT IRREPARABLE INJURY.  THE DISTRICT COURT TOOK
JURISDICTION, HELD THAT THE ACT DID NOT APPLY TO PETITIONER AND GRANTED
THE INJUNCTION SOUGHT.  47 F.SUPP.  671.  THE COURT OF APPEALS FOR THE
SECOND CIRCUIT, ONE JUDGE DISSENTING, REVERSED.  139 F.2D 809.  IT HELD
THAT THE TAX DID APPLY TO PETITIONER AND WAS CONSTITUTIONAL.  WE
GRANTED CERTIORARI, 322 U.S. 720, BUT, AFTER HEARING, REMANDED THE
CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO RETAIN THE BILL PENDING
THE DETERMINATION OF PROCEEDINGS TO BE BROUGHT IN THE STATE COURT IN
CONFORMITY WITH THE OPINION RENDERED, 323 U.S. 101. 

PETITIONER THEREUPON SOUGHT A DECLARATORY JUDGMENT IN THE SUPERIOR
COURT FOR HARTFORD COUNTY, CONNECTICUT.  THE SUPERIOR COURT HELD THAT
THE TAX WAS APPLICABLE TO PETITIONER BUT INVALID UNDER THE COMMERCE
CLAUSE.  15 CONN. SUPP. 205.  THE SUPREME COURT OF ERRORS OF THE STATE
OF CONNECTICUT LIKEWISE HELD THAT PETITIONER WAS SUBJECT TO THE TAX BUT
IT DECLINED TO PASS ON THE EFFECT OF THE COMMERCE CLAUSE.  135 CONN.
37, 70, 61 A.2D 89, 105.  ON A MOTION ASKING IT TO DISSOLVE ITS
ORIGINAL INJUNCTION, THE UNITED STATES DISTRICT COURT DECLINED TO DO
SO.  88 F.SUPP.  711.  IT REVIEWED THE RECENT DECISIONS AND HELD THAT,
APPLYING THE ACT TO PETITIONER, AS REQUIRED BY THE INTERPRETATION OF IT
BY THE STATE COURTS, SUCH APPLICATION VIOLATED THE COMMERCE CLAUSE OF
THE UNITED STATES CONSTITUTION.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT, ACTING THROUGH THE SAME MAJORITY AS ON THE PREVIOUS OCCASION,
REVERSED.  ONE JUDGE DISSENTED FOR THE REASONS STATED BY THE DISTRICT
JUDGE AND BY THE JUDGE WHO HAD DISSENTED ON THE FORMER APPEAL.  181
F.2D 150.  WE GRANTED CERTIORARI BECAUSE OF THE FUNDAMENTAL NATURE OF
THE ISSUE AND THE APPARENT CONFLICT BETWEEN THE JUDGMENT BELOW AND
PREVIOUS JUDGMENTS OF THIS COURT.  340 U.S. 806.  THE CASE WAS ARGUED
TWICE AT THIS TERM. 

THE UNITED STATES DISTRICT COURT HAD JURISDICTION OVER THIS CASE IN
THE FIRST INSTANCE BECAUSE OF THE UNCERTAINTY OF THE ADEQUACY OF A
REMEDY IN THE STATE COURTS, AND IT DID NOT LOSE THAT JURISDICTION BY
VIRTUE OF THE LATER CLARIFICATION OF THE PROCEDURE IN THE COURTS OF
CONNECTICUT.  AMERICAN LIFE INS. CO. V. STEWART, 300 U.S. 203; DAWSON
V. KENTUCKY DISTILLERIES CO., 255 U.S. 288. 

THE VITAL ISSUE WHICH REMAINS IS WHETHER THE APPLICATION OF THE TAX
TO PETITIONER VIOLATES THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  WE COME TO THAT ISSUE NOW WITH THE BENEFIT OF A
STATEMENT FROM THE STATE COURT OF FINAL JURISDICTION SHOWING EXACTLY
WHAT IT IS THAT THE STATE HAS SOUGHT TO TAX.  THE ALL-IMPORTANT
"OPERATING INCIDENCE" OF THE TAX IS THUS MADE CLEAR.  FN3  AFTER FULL
CONSIDERATION AND WITH KNOWLEDGE THAT ITS STATEMENT WOULD BE MADE THE
BASIS OF DETERMINING THE VALIDITY OF THE APPLICATION OF THE TAX UNDER
THE COMMERCE CLAUSE, THAT COURT SAID: 

"THE TAX IS THEN A TAX OR EXCISE UPON THE FRANCHISE OF CORPORATIONS
FOR THE PRIVILEGE OF CARRYING ON OR DOING BUSINESS IN THE STATE,
WHETHER THEY BE DOMESTIC OR FOREIGN.  STANLEY WORKS V. HACKETT, 122
CONN. 547, 551, 190 A. 743.  NET EARNINGS ARE USED MERELY FOR THE
PURPOSE OF DETERMINING THE AMOUNT TO BE PAID BY EACH CORPORATION, A
MEASURE WHICH, BY THE APPLICATION OF THE RATE CHARGED, WAS INTENDED TO
IMPOSE UPON EACH CORPORATION A SHARE OF THE GENERAL TAX BURDEN AS
NEARLY AS POSSIBLE EQUIVALENT TO THAT BORNE BY OTHER WEALTH IN THE
STATE.  AS REGARDS A CORPORATION DOING BUSINESS BOTH WITHIN AND WITHOUT
THE STATE, THE INTENTION WAS, BY THE USE OF A RATHER COMPLICATED
FORMULA, TO MEASURE THE TAX BY DETERMINING AS FAIRLY AS POSSIBLE THE
PROPORTIONATE AMOUNT OF ITS BUSINESS DONE IN THIS STATE.  THERE IS NO
GROUND UPON WHICH THE TAX CAN BE SAID TO REST UPON THE USE OF HIGHWAYS
BY MOTOR TRUCKS  ...  "  135 CONN. AT 56-57, 61 A.2D AT 98-99. 

THE INCIDENCE OF THE TAX IS UPON NO INTRASTATE COMMERCE ACTIVITIES
BECAUSE THERE ARE NONE.  PETITIONER IS ENGAGED ONLY IN INTERSTATE
TRANSPORTATION.  ITS PRINCIPAL PLACE OF BUSINESS IS IN ILLINOIS.  IT IS
AUTHORIZED BY THE INTERSTATE COMMERCE COMMISSION TO DO CERTAIN
INTERSTATE TRUCKING AND BY THE CONNECTICUT PUBLIC UTILITIES COMMISSION
TO DO PART OF SUCH INTERSTATE TRUCKING IN CONNECTICUT.  PETITIONER HAS
FILED WITH THE SECRETARY OF STATE OF CONNECTICUT A CERTIFICATE OF ITS
INCORPORATION IN MISSOURI, HAS DESIGNATED AN AGENT IN CONNECTICUT FOR
SERVICE OF PROCESS AND HAS PAID THE STATE FEE REQUIRED IN THAT
CONNECTION.  IT HAS NOT BEEN AUTHORIZED BY THE STATE OF CONNECTICUT TO
DO INTRASTATE TRUCKING AND DOES NOT ENGAGE IN IT.  SEE TERMINAL TAXICAB
CO. V. DISTRICT OF COLUMBIA, 241 U.S. 252, 253-254. 

PETITIONER'S BUSINESS IS THE INTERSTATE TRANSPORTATION OF FREIGHT BY
MOTOR TRUCK BETWEEN EAST AND WEST.  WHEN A FULL TRUCKLOAD IS TO BE
SHIPPED TO OR FROM ANY CUSTOMER IN CONNECTICUT, PETITIONER'S OVER-THE
ROAD TRUCKS GO DIRECTLY TO THE CUSTOMER'S PLACE OF BUSINESS.  IN THE
CASE OF LESS-THAN-TRUCKLOAD SHIPMENTS, PICKUP TRUCKS OPERATED BY
PETITIONER GATHER THE FREIGHT FROM CUSTOMERS FOR ASSEMBLY INTO FULL
TRUCKLOADS AT EITHER OF TWO TERMINALS MAINTAINED WITHIN THE STATE. 
"THE PICKUP TRUCKS MERELY ACT AS A PART OF THE INTERSTATE
TRANSPORTATION OF THE FREIGHT."  135 CONN. AT 44, 61 A.2D AT 93. 

THE TAX DOES NOT DISCRIMINATE BETWEEN INTERSTATE AND INTRASTATE
COMMERCE.  NEITHER THE AMOUNT OF THE TAX NOR ITS COMPUTATION NEED BE
CONSIDERED BY US IN VIEW OF OUR DISPOSITION OF THE CASE.  THE OBJECTION
TO ITS VALIDITY DOES NOT REST ON A CLAIM THAT IT PLACES AN UNDULY HEAVY
BURDEN ON INTERSTATE COMMERCE IN RETURN FOR PROTECTION GIVEN BY THE
STATE.  THE TAX IS NOT LEVIED AS COMPENSATION FOR THE USE OF HIGHWAYS
FN4  OR COLLECTED IN LIEU OF AN AD VALOREM PROPERTY TAX.  FN5  THOSE
BASES OF TAXATION HAVE BEEN DISCLAIMED BY THE HIGHEST COURT OF THE
TAXING STATE.  IT IS NOT A FEE FOR AN INSPECTION OR A TAX ON SALES OR
USE.  IT IS A "TAX OR EXCISE" PLACED UNEQUIVOCALLY UPON THE
CORPORATION'S FRANCHISE FOR THE PRIVILEGE OF CARRYING ON EXCLUSIVELY
INTERSTATE TRANSPORTATION IN THE STATE.  IT SERVES NO PURPOSE FOR THE
STATE TAX COMMISSIONER TO SUGGEST THAT, IF THERE WERE SOME INTRASTATE
COMMERCE INVOLVED OR IF AN APPROPRIATE TAX WERE IMPOSED AS COMPENSATION
FOR PETITIONER'S USE OF THE HIGHWAYS, THE SAME SUM OF MONEY AS IS AT
ISSUE HERE MIGHT BE COLLECTED LAWFULLY FROM PETITIONER.  EVEN THOUGH
THE FINANCIAL BURDEN ON INTERSTATE COMMERCE MIGHT BE THE SAME, THE
QUESTION WHETHER A STATE MAY VALIDLY MAKE INTERSTATE COMMERCE PAY ITS
WAY DEPENDS FIRST OF ALL UPON THE CONSTITUTIONAL CHANNEL THROUGH WHICH
IT ATTEMPTS TO DO SO. FREEMAN V. HEWIT, 329 U.S. 249; MCLEOD V.
DILWORTH CO., 322 U.S. 327. 

TAXING POWER IS INHERENT IN SOVEREIGN STATES, YET THE STATES OF THE
UNITED STATES HAVE DIVIDED THEIR TAXING POWER BETWEEN THE FEDERAL
GOVERNMENT AND THEMSELVES.  THEY DELEGATED TO THE UNITED STATES THE
EXCLUSIVE POWER TO TAX THE PRIVILEGE TO ENGAGE IN INTERSTATE COMMERCE
WHEN THEY GAVE CONGRESS THE POWER "TO REGULATE COMMERCE WITH FOREIGN
NATIONS, AND AMONG THE SEVERAL STATES  ... "  U.S. CONST., ART. I, SEC.
8, CL. 3.  WHILE THE REACH OF THE RESERVED TAXING POWER OF A STATE IS
GREAT, THE CONSTITUTIONAL SEPARATION OF THE FEDERAL AND STATE POWERS
MAKES IT ESSENTIAL THAT NO STATE BE PERMITTED TO EXERCISE, WITHOUT
AUTHORITY FROM CONGRESS, THOSE FUNCTIONS WHICH IT HAS DELEGATED
EXCLUSIVELY TO CONGRESS.  ANOTHER EXAMPLE OF THIS BASIC SEPARATION OF
POWERS IS THE INABILITY OF THE STATES TO TAX THE AGENCIES THROUGH WHICH
THE UNITED STATES EXERCISES ITS SOVEREIGN POWERS.  SEE M'CULLOCH V.
MARYLAND, 4 WHEAT.  316, 425-437; BROWN V. MARYLAND, 12 WHEAT.  419,
445-449; MAYO V. UNITED STATES, 319 U.S. 441. 

THE ANSWER IN THE INSTANT CASE HAS BEEN MADE CLEAR BY THE COURTS OF
CONNECTICUT.  IT IS NOT A MATTER OF LABELS.  THE INCIDENCE OF THE TAX
PROVIDES THE ANSWER.  THE COURTS OF CONNECTICUT HAVE HELD THAT THE TAX
BEFORE US ATTACHES SOLELY TO THE FRANCHISE OF PETITIONER TO DO
INTERSTATE BUSINESS.  THE STATE IS NOT PRECLUDED FROM IMPOSING TAXES
UPON OTHER ACTIVITIES OR ASPECTS OF THIS BUSINESS WHICH, UNLIKE THE
PRIVILEGE OF DOING INTERSTATE BUSINESS, ARE SUBJECT TO THE SOVEREIGN
POWER OF THE STATE.  THOSE TAXES MAY BE IMPOSED ALTHOUGH THEIR PAYMENT
MAY COME OUT OF THE FUNDS DERIVED FROM PETITIONER'S INTERSTATE
BUSINESS, PROVIDED THE TAXES ARE SO IMPOSED THAT THEIR BURDEN WILL BE
REASONABLY RELATED TO THE POWERS OF THE STATE AND NONDISCRIMINATORY. 

THIS COURT HERETOFORE HAS STRUCK DOWN, UNDER THE COMMERCE CLAUSE,
STATE TAXES UPON THE PRIVILEGE OF CARRYING ON A BUSINESS THAT WAS
EXCLUSIVELY INTERSTATE IN CHARACTER.  THE CONSTITUTIONAL INFIRMITY OF
SUCH A TAX PERSISTS NO MATTER HOW FAIRLY IT IS APPORTIONED TO BUSINESS
DONE WITHIN THE STATE.  ALPHA PORTLAND CEMENT CO. V. MASSACHUSETTS, 268
U.S. 203(MEASURED BY PERCENTAGES OF "CORPORATE EXCESS" AND NET INCOME);
OZARK PIPE LINE CORP. V. MONIER, 266 U.S. 555(MEASURED BY PERCENTAGE OF
CAPITAL STOCK AND SURPLUS).  SEE INTERSTATE PIPE LINE CO. V. STONE, 337
U.S. 662, 669, ET SEQ. (DISSENTING OPINION WHICH DISCUSSES THE ISSUE ON
THE ASSUMPTION THAT THE ACTIVITIES WERE IN INTERSTATE COMMERCE); JOSEPH
V. CARTER & WEEKES CO., 330 U.S. 422; FREEMAN V. HEWIT, SUPRA.  FN6 

OUR CONCLUSION IS NOT IN CONFLICT WITH THE PRINCIPLE THAT, WHERE A
TAXPAYER IS ENGAGED BOTH IN INTRASTATE AND INTERSTATE COMMERCE, A STATE
MAY TAX THE PRIVILEGE OF CARRYING ON INTRASTATE BUSINESS AND, WITHIN
REASONABLE LIMITS,  FN7  MAY COMPUTE THE AMOUNT OF THE CHARGE BY
APPLYING THE TAX RATE TO A FAIR PROPORTION OF THE TAXPAYER'S BUSINESS
DONE WITHIN THE STATE, INCLUDING BOTH INTERSTATE AND INTRASTATE. 
INTERSTATE PIPE LINE CO. V. STONE, SUPRA; INTERNATIONAL HARVESTER CO.
V. EVATT, 329 U.S. 416; ATLANTIC LUMBER CO. V. COMM'R OF CORPORATIONS
AND TAXATION, 298 U.S. 553.  THE SAME IS TRUE WHERE THE TAXPAYER'S
BUSINESS ACTIVITY IS LOCAL IN NATURE, SUCH AS THE TRANSPORTATION OF
PASSENGERS BETWEEN POINTS WITHIN THE SAME STATE, ALTHOUGH INCLUDING
INTERSTATE TRAVEL, CENTRAL GREYHOUND LINES V. MEALEY, 334 U.S. 653, OR
THE PUBLICATION OF A NEWSPAPER, WESTERN LIVE STOCK V. BUREAU OF
REVENUE, 303 U.S. 250.  SEE ALSO, MEMPHIS GAS CO. V. STONE, 335 U.S.
80. 

IN THIS FIELD THERE IS NOT ONLY REASON BUT LONG-ESTABLISHED PRECEDENT
FOR KEEPING THE FEDERAL PRIVILEGE OF CARRYING ON EXCLUSIVELY INTERSTATE
COMMERCE FREE FROM STATE TAXATION.  TO DO SO GIVES LATERAL SUPPORT TO
ONE OF THE CORNERSTONES OF OUR CONSTITUTIONAL LAW - M'CULLOCH V.
MARYLAND, SUPRA. 

THE JUDGMENT OF THE COURT OF APPEALS, WHICH REVERSED THAT OF THE
DISTRICT COURT, IS ACCORDINGLY REVERSED. 

FN1  "SEC.  418C.  IMPOSITION OF TAX.  EVERY MUTUAL SAVINGS BANK,
SAVINGS AND LOAN ASSOCIATION AND BUILDING AND LOAN ASSOCIATION DOING
BUSINESS IN THIS STATE, AND EVERY OTHER CORPORATION OR ASSOCIATION
CARRYING ON BUSINESS IN THIS STATE WHICH IS REQUIRED TO REPORT TO THE
COLLECTOR OF INTERNAL REVENUE FOR THE DISTRICT IN WHICH SUCH
CORPORATION OR ASSOCIATION HAS ITS PRINCIPAL PLACE OF BUSINESS FOR THE
PURPOSE OF ASSESSMENT, COLLECTION AND PAYMENT OF AN INCOME TAX (WITH
EXCEPTIONS NOT MATERIAL HERE)  ...  SHALL PAY, ANNUALLY, A TAX OR
EXCISE UPON ITS FRANCHISE FOR THE PRIVILEGE OF CARRYING ON OR DOING
BUSINESS WITHIN THE STATE, SUCH TAX TO BE MEASURED BY THE ENTIRE NET
INCOME AS HEREIN DEFINED RECEIVED BY SUCH CORPORATION OR ASSOCIATION
FROM BUSINESS TRANSACTED WITHIN THE STATE DURING THE INCOME YEAR AND TO
BE ASSESSED AT THE RATE OF TWO PER CENT; ...."  CONN. GEN. STAT. CUM.
SUPP. 1935.    THIS SECTION WAS AMENDED IN 1937 BY INSERTING IN THE
FIRST ITALICIZED CLAUSE, AFTER THE WORDS "EVERY OTHER CORPORATION OR
ASSOCIATION CARRYING ON," THE WORDS "OR HAVING THE RIGHT TO CARRY ON." 
CONN. GEN. STAT. CUM. SUPP. 1939, SEC. 354E.  OUR CONCLUSION IS THE
SAME AS TO THE ASSESSMENTS LEVIED BEFORE AND THOSE LEVIED AFTER THE
AMENDMENT. 

THE CURRENT REVISION OF THE STATUTE, AS SUBSEQUENTLY AMENDED, APPEARS
IN CONN. GEN. STAT., 1949, SECS. 1896-1921. 

FN2  "  ...  NO (UNITED STATES) DISTRICT COURT SHALL HAVE
JURISDICTION OF ANY SUIT TO ENJOIN, SUSPEND, OR RESTRAIN THE
ASSESSMENT, LEVY, OR COLLECTION OF ANY TAX IMPOSED BY OR PURSUANT TO
THE LAWS OF ANY STATE WHERE A PLAIN, SPEEDY, AND EFFICIENT REMEDY MAY
BE HAD AT LAW OR IN EQUITY IN THE COURTS OF SUCH STATE."  50 STAT. 738,
28 U.S.C. (1940 ED.)  SEC.  41(1).  SEE 28 U.S.C. (1946 ED., SUPP. III)
SEC. 1341. 

FN3  WISCONSIN V. PENNEY CO., 311 U.S. 435, 444. 

FN4  SEE CAPITOL GREYHOUND LINES V. BRICE, 339 U.S. 542; AERO TRANSIT
CO. V. BOARD OF COMM'RS, 332 U.S. 495; INTERSTATE BUSSES CORP. V.
BLODGETT, 276 U.S. 245(CONN.  EXCISE TAX ON THE USE OF THE HIGHWAYS). 
CF. MEMPHIS GAS CO. V. STONE, 335 U.S. 80; MCCARROLL V. DIXIE LINES,
309 U.S. 176. 

FN5  SEE INTERSTATE PIPE LINE CO. V. STONE, 337 U.S. 662, 679; CUDAHY
PACKING CO. V. MINNESOTA, 246 U.S. 450; OLD DOMINION S.S. CO. V.
VIRGINIA, 198 U.S. 299; POSTAL TELEGRAPH CABLE CO. V. ADAMS, 155 U.S.
688. 

FN6  THE DECISION IN MEMPHIS GAS CO. V. BEELER, 315 U.S. 649, UPHELD
A TENNESSEE TAX ON EARNINGS OF THE TAXPAYER WITHIN THAT STATE WHERE THE
EARNINGS WERE DERIVED FROM THE INTRASTATE DISTRIBUTION OF GAS BY THE
TAXPAYER IN A JOINT ENTERPRISE WITH THE MEMPHIS POWER & LIGHT COMPANY. 
ANY SUGGESTION IN THAT OPINION AS TO THE POSSIBLE VALIDITY OF SUCH A
TAX IF APPLIED TO EARNINGS DERIVED WHOLLY FROM INTERSTATE COMMERCE IS
NOT ESSENTIAL TO THE DECISION IN THE CASE. 

FN7  SEE INTERNATIONAL HARVESTER CO. V. EVATT, 329 U.S. 416; BUTLER
BROS. V. MCCOLGAN, 315 U.S. 501; DEPARTMENT OF TREASURY V. WOOD
PRESERVING CORP., 313 U.S. 62; FORD MOTOR CO. V. BEAUCHAMP, 308 U.S.
331; CONNECTICUT GENERAL LIFE INS. CO. V. JOHNSON, 303 U.S. 77; HANS
REES' SONS V. NORTH CAROLINA, 283 U.S. 123; UNDERWOOD TYPEWRITER CO. V.
CHAMBERLAIN, 254 U.S. 113. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS JOIN, DISSENTING. 

THE COURT ASSUMES, AND I THINK IT HAS BEEN CLEARLY DEMONSTRATED, THAT
THE TAX UNDER CHALLENGE IS NONDISCRIMINATORY, FAIRLY APPORTIONED AND
NOT AN UNDUE BURDEN ON INTERSTATE COMMERCE.  HENCE, IF APPELLANT HAD
BEEN ENGAGED IN AN IOTA OF ACTIVITY WHICH THE COURT WOULD BE WILLING TO
CALL "INTRASTATE," CONNECTICUT COULD HAVE APPLIED ITS TAX TO THE
COMPANY'S INTERSTATE BUSINESS IN THE PRECISE FORM WHICH IT NOW SEEKS TO
EMPLOY - A TAX ON THE PRIVILEGE OF DOING BUSINESS IN CONNECTICUT
MEASURED BY THE ENTIRE NET INCOME ATTRIBUTABLE TO THE STATE, EVEN
THOUGH DERIVED FROM INTERSTATE COMMERCE. 

BUT SOLELY BECAUSE SPECTOR ENGAGES IN WHAT THE COURT CALLS
"EXCLUSIVELY INTERSTATE" BUSINESS, A DIFFERENT STANDARD IS APPLIED. 
THE COURT DOES NOT ASK WHETHER THE STATE IS MERELY ASKING INTERSTATE
COMMERCE TO PAY ITS WAY, OR WHETHER THE STATE IN FACT PROVIDES
PROTECTION AND SERVICES FOR WHICH SUCH COMMERCE MAY FAIRLY BE CHARGED. 
NOR IS THE COURT CONCERNED WHETHER THE TAX PUTS INTERSTATE BUSINESS AT
A COMPETITIVE DISADVANTAGE OR IS LIKELY TO DO SO.  INSTEAD, THE TAX IS
DECLARED INVALID SIMPLY BECAUSE THE STATE HAS VERBALLY CHARACTERIZED IT
AS A LEVY ON THE PRIVILEGE OF DOING BUSINESS WITHIN ITS BORDERS.  THE
COURT CONCEDES, OR AT LEAST APPEARS TO CONCEDE, THAT IF THE CONNECTICUT
LEGISLATURE OR HIGHEST COURT HAD DESCRIBED THE TAX AS ONE FOR THE USE
OF HIGHWAYS OR IN LIEU OF AN AD VALOREM PROPERTY TAX, SPECTOR WOULD
HAVE HAD TO PAY THE SAME AMOUNT, CALCULATED IN THE SAME WAY, AS IS
SOUGHT TO BE COLLECTED HERE.  IN ACKNOWLEDGING THIS, THE COURT'S OWN
OPINION TOTALLY REFUTES ITS PROTESTATION THAT THE STANDARD EMPLOYED TO
STRIKE DOWN CONNECTICUT'S TAX IS MORE THAN A MATTER OF LABELS.  SPECTOR
REMAINS FREE - AS IT HAS SINCE THE TAX LAW WAS ADOPTED IN 1935 - FROM
PAYING ANY SHARE OF THE STATE'S EXPENSES, AND ITS TAX-FREE STATUS
CONTINUES UNTIL CONNECTICUT RENAMES OR RESHUFFLES ITS TAX. 

NEITHER SUCH A STANDARD NOR SUCH A RESULT PERSUADES ME.  I AGREE WITH
THE WELL-REASONED OPINIONS OF THE COURT BELOW THAT THE CASES UPHOLDING
FAIRLY APPORTIONED TAXES ON MIXED INTRASTATE AND INTERSTATE BUSINESS,
AND RECOGNIZING THE RIGHT OF STATES TO MAKE INTERSTATE COMMERCE PAY ITS
WAY, HAVE ENFEEBLED - AND JUSTIFIABLY SO - THE PRECEDENTS WHICH TODAY'S
DECISION RESTORES TO FULL VIGOR.  IN THE NOT TOO DISTANT PAST, THIS
SEEMED TO BE QUITE CLEAR.  IN MEMPHIS NATURAL GAS CO. V. BEELER, 315
U.S. 649(1942), A TAX WAS UPHELD AS BEING REASONABLY ATTRIBUTABLE TO
INTRASTATE ACTIVITIES.  BUT CHIEF JUSTICE STONE, SPEAKING FOR A
UNANIMOUS COURT, WENT FURTHER TO STATE: 

"IN ANY CASE, EVEN IF TAXPAYER'S BUSINESS WERE WHOLLY INTERSTATE
COMMERCE, A NONDISCRIMINATORY TAX BY TENNESSEE UPON THE NET INCOME OF A
FOREIGN CORPORATION HAVING A COMMERCIAL DOMICILE THERE ...  OR UPON NET
INCOME DERIVED FROM WITHIN THE STATE  ...  IS NOT PROHIBITED BY THE
COMMERCE CLAUSE  ...  "  ID. AT 656. 

IN LIGHT OF THE APPARENT NEED FOR CLEARING UP THE TANGLED UNDERBRUSH
OF PAST CASES, IT APPEARS THAT THIS VIEW WAS DELIVERED ADVISEDLY.  NOR
DO I UNDERSTAND IT TO HAVE BEEN UPSET BY FREEMAN V. HEWIT, 329 U.S.
249(1946), OR JOSEPH V. CARTER & WEEKES CO., 330 U.S. 422(1947).  THE
FORMER INVOLVED A GROSS-RECEIPTS TAX CAPABLE OF DUPLICATION BY ANOTHER
STATE; THE LATTER INVOLVED A GROSSRECEIPTS TAX RATHER THAN A NET-INCOME
TAX; AND THE OPINION IN EACH CASE WAS WRITTEN BY A MEMBER OF THE COURT
WHO JOINED IN THE BEELER DECISION. 

BUT IN ANY EVENT, I WOULD CONFINE THOSE DECISIONS TO THEIR "SPECIAL
FACTS."  FREEMAN V. HEWIT, SUPRA, AT 252.  THE CONNECTICUT TAX MEETS
EVERY PRACTICAL TEST OF FAIRNESS AND PROPRIETY ENUNCIATED IN CASES
UPHOLDING PRIVILEGE TAXES ON CORPORATIONS DOING A MIXED INTRASTATE AND
INTERSTATE BUSINESS.  THESE CASES SHOULD GOVERN HERE, FOR THERE IS NO
APPARENT DIFFERENCE BETWEEN AN "EXCLUSIVELY INTERSTATE" BUSINESS AND A
"MIXED" BUSINESS WHICH WOULD WARRANT DIFFERENT CONSTITUTIONAL REGARD. 
THERE IS NOTHING SPIRITUAL ABOUT INTERSTATE COMMERCE.  IT IS RARELY
DEVOID OF SIGNIFICANT CONTACTS WITH THE SEVERAL STATES.  HENCE, THIS
COURT HAS LONG TREATED THE PROBLEMS IN THIS FIELD WITH A FLEXIBILITY
WHICH THE COMPETING DEMANDS OF FEDERAL AND STATE GOVERNMENTAL SPHERES
HAVE REQUIRED.  IN THE ABSENCE OF FEDERAL ACTION, THIS COURT HAS BEEN
QUICK TO RECOGNIZE LEGITIMATE LOCAL INTERESTS AND UPHOLD STATE
REGULATIONS OF ACTIVITIES WHICH ADMITTEDLY FORM A PART OF, OR IMPINGE
ON, INTERSTATE COMMERCE.  SEE, E.G., SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177(1938).  THE SAME APPROACH IS HARDLY
FOREIGN TO THE FIELD OF STATE TAXES: 

"  ...  (WHEN) ACCOMMODATION MUST BE MADE BETWEEN STATE AND NATIONAL
INTERESTS, MANUFACTURE WITHIN A STATE, THOUGH DESTINED FOR SHIPMENT
OUTSIDE, IS NOT A SEAMLESS WEB SO AS TO PREVENT A STATE FROM GIVING THE
MANUFACTURING PART DETACHED RELEVANCE FOR PURPOSES OF LOCAL TAXATION." 
FREEMAN V. HEWIT, SUPRA, AT 255. 

A SIMILAR RECOGNITION OF FACTS IS NO LESS SUITED TO THIS CASE. 
SPECTOR QUALIFIED TO DO BUSINESS IN THE STATE ON JUNE 11, 1934, BY
FILING THE NECESSARY PAPERS WITH THE SECRETARY OF STATE.  IT LEASES AND
UTILIZES TERMINALS IN CONNECTICUT.  IT EMPLOYS TWENTY-SEVEN FULL-TIME
WORKERS IN CONNECTICUT, THE PAYROLL AT NEW BRITAIN AMOUNTING TO $1,200
PER WEEK.  IT OWNS PICKUP TRUCKS WHICH ARE REGISTERED IN ITS NAME WITH
THE STATE MOTOR VEHICLE DEPARTMENT AND WHICH PLY THE STREETS OF
CONNECTICUT CITIES.  IT USES HEAVY TRUCKS WHICH GRIND OVER CONNECTICUT
HIGHWAYS.  AS POINTED OUT BY THE CONNECTICUT SUPREME COURT OF ERRORS,
ITS LEASEHOLDS 

"  ...  WERE THE MEANS ADOPTED BY IT FOR THE SUCCESSFUL OPERATION OF
ITS BUSINESS IN THIS STATE, AND NO DOUBT THEY WERE OF MATERIAL SERVICE
IN PRODUCING THE LARGE PROPORTION OF THE PLAINTIFF'S BUSINESS WHICH IS
ATTRIBUTABLE TO CONNECTICUT."  SPECTOR MOTOR SERVICE, INC. V. WALSH,
135 CONN. 37, 50, 61 A.2D 89, 96(1948).  TO BE SURE, THE COMPANY DOES
NOT MAKE INTRASTATE DELIVERIES.  BUT IF IT DID, ITS ACTIVITIES WOULD
DIFFER ONLY IN THAT ITS TRUCKS MIGHT USE DIFFERENT STREETS AND HIGHWAYS
AND MAKE DIFFERENT STOPS; THE PROTECTION AND SERVICES RENDERED BY THE
STATE WOULD BE THE SAME.  THE LOCAL ASPECTS OF SPECTOR'S BUSINESS, EVEN
THOUGH IT MIGHT TECHNICALLY BE "EXCLUSIVELY INTERSTATE," ARE EASILY AS
SUBSTANTIAL AS THOSE WHICH THIS COURT RECENTLY FOUND ADEQUATE TO UPHOLD
PARTS OF THE ILLINOIS OCCUPATION TAX, NORTON CO. V. DEPARTMENT OF
REVENUE, 340 U.S. 534(1951).  THEY ARE AT LEAST AS EXTENSIVE AS THOSE
WHICH VALIDATED A "PRIVILEGE" TAX IN MEMPHIS NATURAL GAS CO. V. STONE,
335 U.S. 80(1948). 

IT HAS TAKEN EIGHT YEARS AND EIGHT COURTS TO BRING THIS BATTERED
LITIGATION TO AN END.  THE TAXES INVOLVED GO BACK THIRTEEN YEARS.  IT
IS THEREFORE NO ANSWER TO CONNECTICUT AND SOME THIRTY OTHER STATES WHO
HAVE SIMILAR TAX MEASURES THAT THEY CAN NOW COLLECT THE SAME REVENUES
BY ENACTING LAWS MORE FELICITOUSLY DRAFTED.  BECAUSE OF ITS FAILURE TO
USE THE RIGHT TAG, CONNECTICUT CANNOT COLLECT FROM SPECTOR FOR THE
YEARS 1937 TO DATE, AND IT AND OTHER STATES MAY WELL HAVE PAST
COLLECTIONS TAKEN AWAY AND TURNED INTO TAXPAYER BONANZAS BY SUITS FOR
REFUND NOT BARRED BY THE RESPECTIVE STATUTES OF LIMITATION. 

NOR CAN THE STATES BE ENTIRELY CERTAIN THAT STATUTES RECAST IN THE
LIGHT OF THIS DECISION WILL BE IMMUNE FROM LATER CONSTITUTIONAL
ATTACK.  IT IS AT LEAST DOUBTFUL THAT THIS STATUTE IS THE ONLY KIND OF
MEASURE WHICH THE COURT MIGHT THINK WOULD IMPOSE A TAX "ON THE
PRIVILEGE OF DOING INTERSTATE BUSINESS."  BUT EVEN ASSUMING THAT THE
COURT HAS PROMULGATED A SURE GUIDE FOR STATES TO FOLLOW IN FUTURE
ENACTMENTS, THE FACT REMAINS THAT THERE IS NO REASONABLE WARRANT FOR
CLOAKING A PURELY VERBAL STANDARD WITH CONSTITUTIONAL DIGNITY. 
"EXCLUSIVELY INTERSTATE COMMERCE" RECEIVES ADEQUATE PROTECTION WHEN
STATE LEVIES ARE FAIRLY APPORTIONED AND NONDISCRIMINATORY.  SEE OPINION
OF JUSTICE RUTLEDGE IN INTERSTATE OIL PIPE LINE CO. V. STONE, 337 U.S.
662(1949).  THE "PROTECTION" BESTOWED BY TODAY'S DECISION IS NEITHER
SUBSTANTIAL NOR DESERVED. 

OBJECTIONS TO THE FAIRNESS OF CONNECTICUT'S APPORTIONMENT FORMULA
HAVE BEEN CORRECTLY DISPOSED OF BY THE COURT OF APPEALS.  I WOULD
AFFIRM ITS JUDGMENT. 
..END :






UNITED STATES V. MOORE, 340 U.S. 616 


NO. 344.  ARGUED FEBRUARY 28 AND MARCH 1, 1951.  - DECIDED MARCH 26,
1951.  - 182 F.2D 332, REVERSED. 


1.  IN AN ACTION BY THE UNITED STATES UNDER THE HOUSING AND RENT ACT
OF 1947, AS AMENDED, A LANDLORD MAY BE ORDERED UNDER SEC. 206(B) TO
MAKE RESTITUTION OF OVERCEILING RENTALS, EVEN THOUGH A PROHIBITORY
INJUNCTION BE NOT REQUIRED BECAUSE THE DEFENSE-RENTAL AREA WAS
DECONTROLLED AFTER THE VIOLATIONS BUT BEFORE SUIT WAS BROUGHT.  PP. 617
620. 

(A)  AN ORDER FOR RESTITUTION IN THIS ACTION WAS PERMISSIBLE UNDER
THE "OTHER ORDER" PROVISION OF SEC. 206(B).  PORTER V. WARNER HOLDING
CO., 328 U.S. 395.  PP. 619-620. 

2.  THE TERMINATION OF RENT CONTROL IN THE DEFENSE-RENTAL AREA DID
NOT END THE LEGAL EFFECT OF SECS. 205 AND 206(UNDER WHICH THIS ACTION
WAS BROUGHT), IN VIEW OF THE PROVISION OF SEC. 204(F) FOR THE SURVIVAL
OF RIGHTS AND LIABILITIES INCURRED PRIOR TO THE EXPIRATION OF THE ACT
ON EITHER THE DATE SPECIFIED BY CONGRESS IN THE ACT OR SUCH DATE AS THE
PRESIDENT OR CONGRESS MIGHT LATER DETERMINE.  PP. 620-621. 

3.  THE TRIAL OF THIS PROCEEDING AS AN ACTION FOR EQUITABLE RELIEF
DID NOT DENY RESPONDENTS THEIR CONSTITUTIONAL RIGHT TO A JURY TRIAL,
BECAUSE NO DEMAND FOR A JURY TRIAL WAS MADE AS REQUIRED BY RULE 38 OF
THE FEDERAL RULES OF CIVIL PROCEDURE AND, SO FAR AS THE RECORD SHOWS,
ANY RIGHT TO A JURY TRIAL WAS WAIVED.  P. 621. 

UNITED STATES V. MOORE ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE CASE IS STATED IN THE OPINION, PP. 617-618.  THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED, P. 621. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BRINGS THIS ACTION UNDER THE HOUSING AND RENT ACT
OF 1947, AS AMENDED,  FN1 TO OBTAIN DAMAGES FOR VIOLATIONS OF THE ACT
AND RESTITUTION OF OVERCEILING RENTALS COLLECTED.  THE QUESTION IS
WHETHER UNDER SEC. 206(B) OF THE ACT A LANDLORD MAY BE ORDERED TO MAKE
RESTITUTION OF OVERCEILING RENTALS WHERE A PROHIBITORY INJUNCTION IS
NOT REQUIRED BECAUSE THE DEFENSE-RENTAL AREA WAS DECONTROLLED AFTER THE
VIOLATIONS BUT BEFORE THE GOVERNMENT BROUGHT SUIT. 

RESPONDENTS ARE LANDLORDS OF HOUSING ACCOMMODATIONS IN DALLAS,
TEXAS.  BETWEEN OCTOBER 1, 1947, AND MAY 31, 1949, THEY DEMANDED AND
RECEIVED RENTS IN EXCESS OF THOSE ALLOWED BY THE APPLICABLE MAXIMUM
RENT REGULATION  FN2  ISSUED UNDER THE ACT.  THIS ACTION WAS BEGUN IN
FEDERAL DISTRICT COURT ON JUNE 29, 1949, PURSUANT TO SECS. 205  FN3
AND 206(B)  FN4  OF THE ACT.  THE COMPLAINT BY ITS TERMS SOUGHT A
PROHIBITORY INJUNCTION, RESTITUTION OF ALL OVERCHARGES, AND STATUTORY
DAMAGES.  RESPONDENTS MOVED TO DISMISS ON THE GROUND THAT ON JUNE 23,
1949, SIX DAYS PRIOR TO FILING OF THE COMPLAINT, THE HOUSING EXPEDITER,
PURSUANT TO ACTION TAKEN BY THE CITY OF DALLAS UNDER SEC. 204(J) (3) OF
THE ACT, TERMINATED RENT CONTROL IN THAT CITY; THAT THIS ACT OF THE
EXPEDITER TERMINATED AS TO DALLAS ALL PROVISIONS OF TITLE II OF THE ACT
INCLUDING THE REMEDIAL PROVISIONS UNDER WHICH THIS SUIT IS BROUGHT; AND
THAT NO SAVING CLAUSE WAS APPLICABLE.  THE DISTRICT COURT DENIED THE
MOTION.  RESPONDENTS DID NOT DEMAND A JURY.  A TRIAL TO THE COURT
CONCLUDED IN A JUDGMENT FOR THE GOVERNMENT, ALLOWING STATUTORY DAMAGES
OF $50 FOR A WILFUL VIOLATION AND ORDERING RESTITUTION TO THE TENANT OF
ALL OVERCHARGES RECEIVED.  ON APPEAL BY RESPONDENTS THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT REVERSED.  182 F.2D 332(1950).  IT HELD
THAT THE GOVERNMENT HAS A RIGHT OF ACTION SOLELY FOR STATUTORY DAMAGES
UNDER SEC. 205 AND REMANDED FOR NEW TRIAL ON THIS ISSUE.  A DISMISSAL
WAS DIRECTED INSOFAR AS THE COMPLAINT SEEKS INJUNCTIVE RELIEF AND
RESTITUTION.  THE GOVERNMENT, ASSERTING CONFLICT WITH PORTER V. WARNER
HOLDING CO., 328 U.S. 395(1946), PETITIONED FOR REVIEW HERE ONLY OF THE
COURT'S DENIAL OF RESTITUTION.  WE GRANTED CERTIORARI.  340 U.S.
890(1950).  FN5 

THE COURT OF APPEALS RECOGNIZED THAT RESTITUTION OF OVERCEILING
RENTALS MAY BE ORDERED AS ANCILLARY TO INJUNCTIVE RELIEF AGAINST
VIOLATIONS OF THE ACT OR REGULATIONS.  HOWEVER, AS PETITIONER CONCEDED
THAT IT HAS NO RIGHT TO AN INJUNCTION WHEN RENT CONTROL HAS BEEN
LAWFULLY TERMINATED, THE COURT CONCLUDED THAT "THERE REMAINED NO
PROCEEDING OF WHICH EQUITY WOULD HAVE JURISDICTION TO WHICH RESTITUTION
COULD BE ADJUNCTIVE" AND THAT RESTITUTION "WAS NEITHER APPROPRIATE NOR
ISSUABLE."  182 F.2D AT 336. 

PETITIONER ASSERTS THAT IT IS ENTITLED TO THE REMEDY OF RESTITUTION,
INDEPENDENTLY OF INJUNCTIVE RELIEF, UNDER SEC. 206(B) OF THE ACT.  THIS
THERE IS AN ACTUAL OR THREATENED VIOLATION OF THE ACT OR ANY
REGULATION, "THE UNITED STATES MAY MAKE APPLICATION TO ANY  ...  COURT
OF COMPETENT JURISDICTION FOR AN ORDER ENJOINING SUCH ACTS OR
PRACTICES, OR FOR AN ORDER ENFORCING COMPLIANCE WITH SUCH PROVISION,
AND UPON A SHOWING THAT SUCH PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE
IN ANY SUCH ACTS OR PRACTICES A PERMANENT OR TEMPORARY INJUNCTION,
RESTRAINING ORDER, OR OTHER ORDER SHALL BE GRANTED WITHOUT BOND."  IT
IS PETITIONER'S CONTENTION THAT THE ITALICIZED LANGUAGE AUTHORIZES THE
RELIEF SOUGHT. 

BOTH PARTIES RELY, AS DID THE COURT OF APPEALS, ON THE DECISION OF
THIS COURT IN PORTER V. WARNER HOLDING CO., SUPRA, WHICH CONSTRUED SEC.
205(A) OF THE EMERGENCY PRICE CONTROL ACT OF 1942.  THIS PROVISION WAS
THE SOURCE OF SEC. 206(B) OF THE 1947 ACT, AND THE TWO SECTIONS ARE FOR
PRESENT PURPOSES IDENTICAL.  THE COMPLAINT IN THE WARNER CASE SOUGHT
INJUNCTIVE RELIEF AGAINST VIOLATIONS AND RESTITUTION OF OVERCHARGES. 
THE LOWER COURTS ALLOWED THE INJUNCTION BUT DENIED RESTITUTION.  THIS
COURT REVERSED, CONCLUDING THAT AN ORDER OF RESTITUTION WAS A PROPER
"OTHER ORDER."  THIS INTERPRETATION WAS REQUIRED TO GIVE EFFECT TO THE
CONGRESSIONAL PURPOSE TO AUTHORIZE WHATEVER ORDER WITHIN THE INHERENT
EQUITABLE POWER OF THE DISTRICT COURT MAY BE CONSIDERED APPROPRIATE AND
NECESSARY TO ENFORCE COMPLIANCE WITH THE ACT.  THE COURT SAID THAT THE
ATTEMPT TO CATALOGUE THE INFINITE FORMS AND VARIATIONS WHICH SUCH
ORDERS MIGHT TAKE.  ...  IN FRAMING SUCH REMEDIES  ...  COURTS MUST ACT
PRIMARILY TO EFFECTUATE THE POLICY OF THE EMERGENCY PRICE CONTROL ACT
AND TO PROTECT THE PUBLIC INTEREST WHILE GIVING NECESSARY RESPECT TO
THE PRIVATE INTERESTS INVOLVED.  THE INHERENT EQUITABLE JURISDICTION
WHICH IS THUS CALLED INTO PLAY CLEARLY AUTHORIZES A COURT, IN ITS
DISCRETION, TO DECREE RESTITUTION OF EXCESSIVE CHARGES IN ORDER TO GIVE
EFFECT TO THE POLICY OF CONGRESS."  328 U.S. AT 400.  THUS AN EQUITABLE
DECREE OF RESTITUTION WOULD BE WITHIN THE SECTION IF IT WAS REASONABLY
APPROPRIATE AND NECESSARY TO ENFORCE COMPLIANCE WITH THE ACT AND
EFFECTUATE ITS PURPOSES. 

ADHERING TO THE BROAD GROUND OF INTERPRETATION OF THE "OTHER ORDERS"
PROVISION ADOPTED IN THE WARNER CASE, WE THINK THE ORDER FOR
RESTITUTION ENTERED BY THE DISTRICT COURT IN THIS ACTION WAS
PERMISSIBLE UNDER SEC. 206(B).  SUCH A DECREE CLEARLY ENFORCES
COMPLIANCE WITH THE ACT AND REGULATIONS FOR THE PERIOD IN WHICH
RESPONDENTS DEMANDED AND RECEIVED EXCESS RENTALS.  IF THE PROVISION IN
SEC. 206(B) FOR ORDERS ENFORCING COMPLIANCE HAD BEEN INTENDED MERELY TO
INSURE SUBSEQUENT OBEDIENCE TO RENT REGULATIONS WHILE IN EFFECT IN A
DEFENSE-RENTAL AREA, IT WOULD HAVE BEEN UNNECESSARY TO AUTHORIZE ORDERS
FOR OTHER THAN INJUNCTIVE RELIEF SINCE THE LATTER REMEDY IS WHOLLY
ADEQUATE TO SECURE PROSPECTIVE COMPLIANCE.  SEE EBELING V. WOODS, 175
F.2D 242, 244(C.A.8TH CIR. 1949).  FN6 

TWO CONTENTIONS ADVANCED BY RESPONDENTS REQUIRE BRIEF CONSIDERATION. 
IT IS ARGUED THAT TERMINATION OF RENT CONTROL IN RESPONDENTS' DEFENSE
RENTAL AREA ENDED THE LEGAL EFFECT OF SECS. 205 AND 206 UNDER WHICH THE
ACTION WAS INSTITUTED.  RESPONDENTS RELY HERE UPON THE LITERAL
PROVISION OF SEC. 204(J)(3) THAT "THE HOUSING EXPEDITER SHALL TERMINATE
THE PROVISIONS OF THIS TITLE" UPON THE TAKING OF APPROPRIATE ACTION BY
THE CITY.  WE THINK A SUFFICIENT ANSWER IS SEC. 204(F), SET OUT IN THE
MARGIN; FN7  IT PROVIDES FOR THE SURVIVAL OF RIGHTS AND LIABILITIES
INCURRED PRIOR TO THE EXPIRATION OF THE TITLE ON EITHER THE DATE
SPECIFIED BY CONGRESS IN THE ACT OR SUCH DATE AS THE PRESIDENT OR
CONGRESS MIGHT LATER DETERMINE. 

RESPONDENTS ALSO CONTEND THAT THE TRIAL OF THIS PROCEEDING AS AN
ACTION FOR EQUITABLE RELIEF DENIED THEIR CONSTITUTIONAL RIGHT TO A JURY
TRIAL.  NO DEMAND FOR A JURY TRIAL WAS MADE AS REQUIRED BY RULE 38 OF
THE FEDERAL RULES OF CIVIL PROCEDURE AND, SO FAR AS THIS RECORD SHOWS,
ANY RIGHT TO A JURY TRIAL WAS WAIVED. 

THE JUDGMENT OF THE COURT OF APPEALS ON RESPONDENTS' APPEAL MUST BE
REVERSED AND THE CAUSE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS
IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  61 STAT. 193, AS AMENDED, 50 U.S.C. APP. (SUPP. III) SEC. 1881
ET SEQ. 

FN2  CONTROLLED HOUSING RENT REGULATION, AS AMENDED, 12 FED. REG.
4331; 13 FED. REG. 1861; 14 FED. REG. 1571. 

FN3  61 STAT. 199, AS AMENDED, 50 U.S.C. APP. (SUPP. III) SEC. 1895. 

FN4  61 STAT. 199, AS AMENDED, 50 U.S.C. APP. (SUPP. III) SEC.
1896(B). 

FN5  ON CROSS-APPEAL BY PETITIONER FROM THE TRIAL COURT'S ORDER
ALLOWING STATUTORY DAMAGES FOR LESS THAN THE AMOUNT OF THE ESTABLISHED
OVERCHARGES, THE COURT OF APPEALS SUSTAINED PETITIONER'S CONTENTION. 
182 F.2D 336(C.A.5TH CIR. 1950).  RESPONDENTS HAVE NOT CHALLENGED THIS
DECISION HERE. 

FN6 IT HAS UNIFORMLY BEEN THE VIEW OF THE LOWER FEDERAL COURTS THAT
RESTITUTION OF OVERCHARGES MAY BE ORDERED UNDER SEC. 206(B) OF THE 1947
ACT AND LIKE PROVISIONS, WHETHER OR NOT INJUNCTIVE RELIEF IS SOUGHT OR
IS PERMISSIBLE AT THE TIME OF THE ORDER.  WOODS V. WAYNE, 177 F.2D
559(C.A.4TH CIR. 1949); CREEDON V. RANDOLPH, 165 F.2D 918(C.A.5TH CIR.
1948); JACKSON V. WOODS, 182 F.2D 338(C.A.5TH CIR. 1950); BOWLES V.
SKAGGS, 151 F.2D 817(C.A.6TH CIR. 1945); WARNER HOLDING CO. V. CREEDON,
166 F.2D 119(C.A.8TH CIR. 1948); EBELING V. WOODS, 175 F.2D 242(C.A.8TH
CIR. 1949); WOODS V. RICHMAN, 174 F.2D 614(C.A.9TH CIR. 1949); WOODS V.
GOCHNOUR, 177 F.2D 964(C.A.9TH CIR. 1949); EMERY V. UNITED STATES, 186
F.2D 900(C.A.9TH CIR. 1951); UNITED STATES V. MASHBURN, 85 F.SUPP. 
968(W.D. ARK. 1949); UNITED STATES V. COWEN'S ESTATE, 91 F.SUPP. 
331(D. MASS. 1950); SEE WOODS V. WOLFE, 182 F.2D 516, 518-519(C.A. 3D
CIR. 1950).  ONLY THE COURT BELOW IN THIS PROCEEDING HAS CONCLUDED THAT
RESTITUTION MUST BE DENIED IN SUCH CASES BECAUSE AN INJUNCTION COULD
NOT HAVE BEEN OBTAINED WHEN THE COMPLAINT WAS FILED.  COMPARE EBELING
V. WOODS, SUPRA, AND WOODS V. RICHMAN, SUPRA, WITH MILLER V. UNITED
STATES, 186 F.2D 937(C.A.5TH CIR. 1951). 

FN7  "THE PROVISIONS OF THIS TITLE SHALL CEASE TO BE IN EFFECT AT THE
CLOSE OF JUNE 30, 1950, OR UPON THE DATE OF A PROCLAMATION BY THE
PRESIDENT OR UPON THE DATE SPECIFIED IN A CONCURRENT RESOLUTION BY THE
TWO HOUSES OF THE CONGRESS, DECLARING THAT THE FURTHER CONTINUANCE OF
THE AUTHORITY GRANTED BY THIS TITLE IS NOT NECESSARY BECAUSE OF THE
EXISTENCE OF AN EMERGENCY, WHICHEVER DATE IS THE EARLIER; EXCEPT THAT
AS TO RIGHTS OR LIABILITIES INCURRED PRIOR TO SUCH TERMINATION DATE,
THE PROVISIONS OF THIS TITLE AND REGULATIONS, ORDERS, AND REQUIREMENTS
THEREUNDER SHALL BE TREATED AS STILL REMAINING IN FORCE FOR THE PURPOSE
OF SUSTAINING ANY PROPER SUIT OR ACTION WITH RESPECT TO ANY SUCH RIGHT
OR LIABILITY."  63 STAT. 24, 50 U.S.C. APP. (SUPP. III) SEC. 1894(F). 
THE SECTION HAS SUBSEQUENTLY BEEN AMENDED IN MINOR RESPECTS. 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS WOULD AFFIRM THE JUDGMENT
ON THE OPINION OF THE COURT OF APPEALS.  182 F.2D 332. 

MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER WOULD AFFIRM THE
JUDGMENT OF THE COURT OF APPEALS. 
..END :

















HAMMERSTEIN V. SUPERIOR COURT, 340 U.S. 622 


NO. 421.  ARGUED MARCH 9, 1951.  - CONTINUED MARCH 26, 1951. 


THIS CAUSE IS CONTINUED FOR SUCH PERIOD AS WILL ENABLE COUNSEL FOR
PETITIONER, WITH ALL CONVENIENT SPEED, TO APPLY TO THE APPROPRIATE
CALIFORNIA COURTS FOR CERTIFICATE OR OTHER EXPRESSION, TO SHOW WHETHER
THE JUDGMENTS HEREIN REST ON ADEQUATE AND INDEPENDENT STATE GROUNDS OR
WHETHER DECISION OF THE FEDERAL QUESTION WAS NECESSARY TO THE JUDGMENTS
RENDERED.  PP. 622-623. 

HAMMERSTEIN V. SUPERIOR COURT OF CALIFORNIA ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA AND TO THE DISTRICT
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT. 

PER CURIAM. 

IN THIS CASE THE RESPONDENT REGGIE HAMMERSTEIN, BY HER MOTHER AND
GUARDIAN, COMMENCED A PATERNITY ACTION AGAINST THE PETITIONER IN THE
SUPERIOR COURT OF CALIFORNIA.  PETITIONER ENTERED A SPECIAL APPEARANCE
IN THAT COURT, ALLEGING THAT IT HAD NO PERSONAL JURISDICTION OVER HIM,
AS HE WAS A NEW YORK RESIDENT.  HE MOVED TO QUASH THE SERVICE UPON HIM
IN NEW YORK ON THE GROUNDS THAT ANY JUDGMENT OBTAINED AGAINST HIM IN
THIS PROCEEDING WOULD DEPRIVE HIM OF DUE PROCESS.  THE MOTION TO QUASH
WAS DENIED.  THE SUPERIOR COURT ENTERED JUDGMENT FOR THE RESPONDENT. 

PRIOR TO THE ENTRY OF THE JUDGMENT, PETITIONER FILED A PETITION FOR A
WRIT OF PROHIBITION IN THE DISTRICT COURT OF APPEAL.  THIS PETITION WAS
DENIED WITHOUT OPINION.  THE CALIFORNIA SUPREME COURT DENIED HIS
APPLICATION FOR A HEARING.  AFTER JUDGMENT, PETITIONER FILED IN THE
CALIFORNIA SUPREME COURT A PETITION FOR A WRIT OF CERTIORARI TO REVIEW
THE SUPERIOR COURT PROCEEDINGS.  THE CALIFORNIA SUPREME COURT DENIED
THIS PETITION WITHOUT OPINION.  WE GRANTED CERTIORARI, 340 U.S.
919(1951). 

THROUGHOUT THESE PROCEEDINGS, PETITIONER PRESERVED HIS FEDERAL
QUESTIONS, BUT SINCE NEITHER OF THE DECISIONS BELOW WAS ACCOMPANIED BY
AN OPINION, IT IS NOT CLEAR WHETHER THE CALIFORNIA COURTS FOUND IT
NECESSARY TO DECIDE ANY FEDERAL QUESTION.  IF THEIR JUDGMENTS REST UPON
AN ADEQUATE STATE GROUND, WE, OF COURSE, WILL NOT REVIEW THOSE
JUDGMENTS.  IF THE DENIALS OF PETITIONER'S APPLICATIONS FOR REVIEW WERE
BASED UPON A DETERMINATION OF THE MERITS OF HIS FEDERAL CLAIM, THE CASE
WILL BE RIPE FOR OUR ADJUDICATION.  IN THIS CIRCUMSTANCE, WE THINK IT
ADVISABLE THAT WE ADHERE TO THE PROCEDURE FOLLOWED IN HERB V. PITCAIRN,
324 U.S. 117(1945). 

WE WILL CONTINUE THE CAUSE FOR SUCH PERIOD AS WILL ENABLE COUNSEL FOR
THE PETITIONER, WITH ALL CONVENIENT SPEED, TO APPLY TO THE APPROPRIATE
CALIFORNIA COURTS FOR CERTIFICATE OR OTHER EXPRESSION, TO SHOW WHETHER
THE JUDGMENTS HEREIN REST ON ADEQUATE AND INDEPENDENT STATE GROUNDS OR
WHETHER DECISION OF THE FEDERAL QUESTION WAS NECESSARY TO THE JUDGMENTS
RENDERED.  CF. LOFTUS V. ILLINOIS, 334 U.S. 804(1948); INDIANA EX REL.
ANDERSON V. BRAND, 303 U.S. 95(1938).  CAUSE CONTINUED. 
..END :



















JOHNSON V. MUELBERGER, 340 U.S. 581 


NO. 296.  ARGUED JANUARY 4, 1951.  - DECIDED MARCH 12, 1951.  - 301 N.Y.
13, 92 N.E.2D 44, REVERSED. 


1.  IN A DIVORCE PROCEEDING BROUGHT IN FLORIDA BY THE SECOND WIFE OF A
NEW YORK RESIDENT, WHEREIN HE ANSWERED ON THE MERITS AND HAD FULL
OPPORTUNITY TO CONTEST (BUT DID NOT CONTEST) THE JURISDICTIONAL ISSUES,
THE COURT GRANTED A DECREE OF DIVORCE, ALTHOUGH THE WIFE HAD NOT
COMPLIED WITH THE JURISDICTIONAL 90-DAY RESIDENCE REQUIREMENT OF
FLORIDA.  HE MARRIED AGAIN, AND AFTER HIS DEATH HIS THIRD WIFE ELECTED,
UNDER NEW YORK LAW, TO TAKE THE STATUTORY ONE-THIRD SHARE OF HIS
ESTATE.  THIS WAS CONTESTED IN NEW YORK BY A DAUGHTER OF HIS FIRST
MARRIAGE (SOLE LEGATEE UNDER HIS WILL), WHO CHALLENGED THE VALIDITY OF
THE FLORIDA DIVORCE ON THE GROUND THAT THE COMPLAINANT HAD NOT COMPLIED
WITH THE 90-DAY RESIDENCE REQUIREMENT.  HELD:  THE DAUGHTER COULD NOT
HAVE CHALLENGED THE VALIDITY OF THE FLORIDA DECREE IN THE COURTS OF
THAT STATE, AND THEREFORE SHE WAS PRECLUDED BY THE FULL FAITH AND
CREDIT CLAUSE OF THE FEDERAL CONSTITUTION FROM COLLATERALLY ATTACKING
IT IN THE COURTS OF NEW YORK.  PP. 582-589. 

2.  WHEN A DECREE OF DIVORCE CANNOT BE ATTACKED ON JURISDICTIONAL
GROUNDS BY PARTIES WHO WERE ACTUALLY BEFORE THE COURT, OR BY THEIR
PRIVIES, OR BY STRANGERS, IN THE COURTS OF THE STATE IN WHICH THE
DECREE WAS RENDERED, THE FULL FAITH AND CREDIT CLAUSE PRECLUDES THEIR
ATTACKING IT IN THE COURTS OF A SISTER STATE.  P. 589. 

JOHNSON V. MUELBERGER. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

AN ORDER OF THE NEW YORK SURROGATE'S COURT SUSTAINING THE VALIDITY OF
AN ELECTION BY PETITIONER TO TAKE AS SURVIVING SPOUSE THE STATUTORY
SHARE OF A DECEDENT'S ESTATE WAS AFFIRMED BY THE APPELLATE DIVISION,
275 APP. DIV. 848.  THE COURT OF APPEALS REVERSED ON CONSTITUTIONAL
GROUNDS.  301 N.Y. 13, 92 N.E.2D 44.  THIS COURT GRANTED CERTIORARI. 
340 U.S. 874.  REVERSED, P. 589. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE RIGHT OF A DAUGHTER TO ATTACK IN NEW YORK THE VALIDITY OF HER
DECEASED FATHER'S FLORIDA DIVORCE IS BEFORE US.  SHE WAS HIS LEGATEE. 
THE DIVORCE WAS GRANTED IN FLORIDA AFTER THE FATHER APPEARED THERE AND
CONTESTED THE MERITS.  THE ISSUE TURNS ON THE EFFECT IN NEW YORK UNDER
THESE CIRCUMSTANCES OF THE FULL FAITH AND CREDIT CLAUSE OF THE FEDERAL
CONSTITUTION. 

ELEANOR JOHNSON MUELBERGER, RESPONDENT, IS THE CHILD OF DECEDENT E.
BRUCE JOHNSON'S FIRST MARRIAGE.  AFTER THE DEATH OF JOHNSON'S FIRST
WIFE IN 1939, HE MARRIED ONE MADOLINE HAM, AND THEY ESTABLISHED THEIR
RESIDENCE IN NEW YORK.  IN AUGUST 1942, MADOLINE OBTAINED A DIVORCE
FROM HIM IN A FLORIDA PROCEEDING, ALTHOUGH THE UNDISPUTED FACTS AS
DEVELOPED IN THE NEW YORK SURROGATE'S HEARING SHOW THAT SHE DID NOT
COMPLY WITH THE JURISDICTIONAL NINETY-DAY RESIDENCE REQUIREMENT.  FN1
THE NEW YORK SURROGATE FOUND THAT 

"IN THE FLORIDA COURT, THE DECEDENT APPEARED BY ATTORNEY AND
INTERPOSED AN ANSWER DENYING THE WRONGFUL ACTS BUT NOT QUESTIONING THE
ALLEGATIONS AS TO RESIDENCE IN FLORIDA.  THE RECORD DISCLOSES THAT
TESTIMONY WAS TAKEN BY THE FLORIDA COURT AND THE DIVORCE GRANTED
MADOLINE JOHNSON.  BOTH PARTIES HAD FULL OPPORTUNITY TO CONTEST THE
JURISDICTIONAL ISSUES IN THAT COURT AND THE DECREE IS NOT SUBJECT TO
ATTACK ON THE GROUND THAT PETITIONER WAS NOT DOMICILED IN FLORIDA." 

IN 1944 MR. JOHNSON ENTERED INTO A MARRIAGE, HIS THIRD, WITH
PETITIONER, GENEVIEVE JOHNSON, AND IN 1945 HE DIED, LEAVING A WILL IN
WHICH HE GAVE HIS ENTIRE ESTATE TO HIS DAUGHTER, ELEANOR.  AFTER
PROBATE OF THE WILL, THE THIRD WIFE FILED NOTICE OF HER ELECTION TO
TAKE THE STATUTORY ONE-THIRD SHARE OF THE ESTATE, UNDER SEC. 18 OF THE
NEW YORK DECEDENT ESTATE LAW.  THIS ELECTION WAS CONTESTED BY
RESPONDENT DAUGHTER, AND A TRIAL WAS HAD BEFORE THE SURROGATE, WHO
DETERMINED THAT SHE COULD NOT ATTACK THE THIRD WIFE'S STATUS AS
SURVIVING SPOUSE, ON THE BASIS OF THE ALLEGED INVALIDITY OF MADOLINE'S
DIVORCE, BECAUSE THE DIVORCE PROCEEDING HAD BEEN A CONTESTED ONE, AND
"(SINCE) THE DECREE IS VALID AND FINAL IN THE STATE OF FLORIDA, IT IS
NOT SUBJECT TO COLLATERAL ATTACK IN THE COURTS OF THIS STATE." 

THE APPELLATE DIVISION AFFIRMED THE SURROGATE'S DECREE PER CURIAM,
275 APP. DIV. 848, BUT THE NEW YORK COURT OF APPEALS REVERSED.  301
N.Y. 13, 92 N.E.2D 44.  THE REMITTITUR REMANDED THE CASE TO THE
SURROGATE "FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH" THE OPINION
OF THE COURT OF APPEALS.  BUT IN LIGHT OF THE RECORD BEFORE US WE
ASSUME THAT THE REQUIREMENT OF FLORIDA FOR A RESIDENCE OF 90 DAYS AS A
JURISDICTIONAL BASIS FOR A FLORIDA DIVORCE IS NO LONGER OPEN AS AN
ISSUE UPON RETURN OF THESE PROCEEDINGS TO THE SURROGATE'S COURT. 
ACCORDINGLY THE JUDGMENT UNDER REVIEW IS A FINAL DECREE. 

THE COURT OF APPEALS HELD THAT THE FLORIDA JUDGMENT FINDING
JURISDICTION TO DECREE THE DIVORCE BOUND ONLY THE PARTIES THEMSELVES. 
THIS FOLLOWED FROM THEIR PREVIOUS OPPORTUNITY TO CONTEST THE
JURISDICTIONAL ISSUE.  AS THE COURT READ THE FLORIDA CASES TO ALLOW
ELEANOR TO ATTACK THE DECREE COLLATERALLY IN FLORIDA, IT DECIDED SHE
SHOULD BE EQUALLY FREE TO DO SO IN NEW YORK.  THE COURT OF APPEALS
REACHED THIS DECISION AFTER CONSIDERATION OF THE FULL FAITH AND CREDIT
CLAUSE.  BECAUSE THE CASE INVOLVES IMPORTANT ISSUES IN THE ADJUSTMENT
OF THE DOMESTIC-RELATIONS LAWS OF THE SEVERAL STATES, WE GRANTED
CERTIORARI, 340 U.S. 874. 

THE CLAUSE AND THE STATUTE PRESCRIBING THE EFFECT IN OTHER STATES OF
JUDGMENTS OF SISTER STATES ARE SET OUT BELOW.  FN2  THIS STATUTORY
PROVISION HAS REMAINED SUBSTANTIALLY THE SAME SINCE 1790.  1 STAT.
122.  THERE IS SUBSTANTIALLY NO LEGISLATIVE HISTORY TO EXPLAIN THE
PURPOSE AND MEANING OF THE CLAUSE AND OF THE STATUTE.  FN3  FROM
JUDICIAL EXPERIENCE WITH AND INTERPRETATION OF THE CLAUSE, THERE HAS
EMERGED THE SUCCINCT CONCLUSION THAT THE FRAMERS INTENDED IT TO HELP
WELD THE INDEPENDENT STATES INTO A NATION BY GIVING JUDGMENTS WITHIN
THE JURISDICTION OF THE RENDERING STATE THE SAME FAITH AND CREDIT IN
SISTER STATES AS THEY HAVE IN THE STATE OF THE ORIGINAL FORUM.  FN4
THE FAITH AND CREDIT GIVEN IS NOT TO BE NIGGARDLY BUT GENEROUS, FULL. 
FN5  "(LOCAL) POLICY MUST AT TIMES BE REQUIRED TO GIVE WAY, SUCH 'IS
PART OF THE PRICE OF OUR FEDERAL SYSTEM.'"  FN6 

THIS CONSTITUTIONAL PURPOSE PROMOTES UNIFICATION, NOT
CENTRALIZATION.  IT LEAVES EACH STATE WITH POWER OVER ITS OWN COURTS
BUT BINDS LITIGANTS, WHEREVER THEY MAY BE IN THE NATION, BY PRIOR
ORDERS OF OTHER COURTS WITH JURISDICTION N7.  "ONE TRIAL OF AN ISSUE IS
ENOUGH.  'THE PRINCIPLES OF RES JUDICATA APPLY TO QUESTIONS OF
JURISDICTION AS WELL AS TO OTHER ISSUES,' AS WELL TO JURISDICTION OF
THE SUBJECT MATTER AS OF THE PARTIES."  FN8  THE FEDERAL PURPOSE OF THE
CLAUSE MAKES THIS COURT, FOR BOTH STATE AND FEDERAL COURTS,  FN9  THE
"FINAL ARBITER WHEN THE QUESTION IS RAISED AS TO WHAT IS A PERMISSIBLE
LIMITATION ON THE FULL FAITH AND CREDIT CLAUSE."  FN10 

IN THE EXERCISE OF THIS RESPONSIBILITY WE HAVE RECENTLY RESTATED THE
CONTROLLING EFFECT OF THE CLAUSE ON STATE PROCEEDINGS SUBSEQUENT TO
DIVORCE DECREES IN OTHER STATES.  IN DAVIS V. DAVIS, 305 U.S. 32, WE
HELD THAT A VIRGINIA DECREE OF DIVORCE, GRANTED A HUSBAND WHO HAD
ACQUIRED LOCAL DOMICILE AFTER HE HAD OBTAINED A DECREE OF SEPARATION IN
THE DISTRICT OF COLUMBIA, THE MARITAL DOMICILE, MUST BE GIVEN EFFECT IN
THE DISTRICT.  THE WIFE HAD ENTERED HER APPEARANCE IN THE VIRGINIA
COURT AND WAS HELD BOUND BY ITS FINDINGS OF JURISDICTION, AFTER
CONTEST.  IN TWO CASES, WILLIAMS I AND II, 317 U.S. 287, AND 325 U.S.
226, WE HELD THAT DOMICILE OF ONE PARTY TO A DIVORCE CREATES AN
ADEQUATE RELATIONSHIP WITH THE STATE TO JUSTIFY ITS EXERCISE OF POWER
OVER THE MARITAL RELATION, 317 U.S. AT 298; 325 U.S. AT 235.  THE LATER
WILLIAMS CASE LEFT A SISTER STATE FREE TO DETERMINE WHETHER THERE WAS
DOMICILE OF ONE PARTY IN AN "EX PARTE" PROCEEDING SO AS TO GIVE THE
COURT JURISDICTION TO ENTER A DECREE.  325 U.S. AT 230, N. 6, 237,
DISSENT 277; ESENWEIN V. COMMONWEALTH, 325 U.S. 279, 281.  CF. RICE V.
RICE, 336 U.S. 674. 

THREE YEARS LATER A QUESTION UNDECIDED IN WILLIAMS II WAS ANSWERED. 
IN SHERRER V. SHERRER, 334 U.S. 343, A FLORIDA DIVORCE, WHERE BOTH
PARTIES APPEARED PERSONALLY OR BY COUNSEL, WAS HELD BY MASSACHUSETTS
NOT TO BE ENTITLED TO FULL FAITH OR CREDIT IN THAT STATE BECAUSE BOTH
PARTIES LACKED FLORIDA DOMICILE.  FN11  320 MASS. 351, 358, 69 N.E.2D
801, 805.  WE REVERSED, SAYING: 

"WE BELIEVE THAT THE DECISION OF THIS COURT IN THE DAVIS CASE AND
THOSE IN RELATED SITUATIONS ARE CLEARLY INDICATIVE OF THE RESULT TO BE
REACHED HERE.  THOSE CASES STAND FOR THE PROPOSITION THAT THE
REQUIREMENTS OF FULL FAITH AND CREDIT BAR A DEFENDANT FROM COLLATERALLY
ATTACKING A DIVORCE DECREE ON JURISDICTIONAL GROUNDS IN THE COURTS OF A
SISTER STATE WHERE THERE HAS BEEN PARTICIPATION BY THE DEFENDANT IN THE
DIVORCE PROCEEDINGS, WHERE THE DEFENDANT HAS BEEN ACCORDED FULL
OPPORTUNITY TO CONTEST THE JURISDICTIONAL ISSUES, AND WHERE THE DECREE
IS NOT SUSCEPTIBLE TO SUCH COLLATERAL ATTACK IN THE COURTS OF THE STATE
WHICH RENDERED THE DECREE."  PP. 351-352.  AND CF. PP. 355-356.  FN12
COE V. COE, 334 U.S. 378; CF. ESTIN V. ESTIN, 334 U.S. 541. 

IT IS CLEAR FROM THE FOREGOING THAT, UNDER OUR DECISIONS, A STATE BY
VIRTUE OF THE CLAUSE MUST GIVE FULL FAITH AND CREDIT TO AN OUT-OF-STATE
DIVORCE BY BARRING EITHER PARTY TO THAT DIVORCE WHO HAS BEEN PERSONALLY
SERVED OR WHO HAS ENTERED A PERSONAL APPEARANCE FROM COLLATERALLY
ATTACKING THE DECREE.  SUCH AN ATTACK IS BARRED WHERE THE PARTY
ATTACKING WOULD NOT BE PERMITTED TO MAKE A COLLATERAL ATTACK IN THE
COURTS OF THE GRANTING STATE.  THIS RULE THE COURT OF APPEALS
RECOGNIZED.  301 N.Y. 13, 17, 92 N.E.2D 44, 46.  IT DETERMINED,
HOWEVER, THAT A "STRANGER TO THE DIVORCE ACTION," AS THE DAUGHTER WAS
HELD TO BE IN NEW YORK, MAY COLLATERALLY ATTACK HER FATHER'S FLORIDA
DIVORCE IN NEW YORK IF SHE COULD HAVE ATTACKED IT IN FLORIDA. 

NO FLORIDA CASE HAS COME TO OUR ATTENTION HOLDING THAT A CHILD MAY
CONTEST IN FLORIDA ITS PARENT'S DIVORCE WHERE THE PARENT WAS BARRED
FROM CONTESTING, AS HERE, BY RES JUDICATA.  STATE EX REL. WILLYS V.
CHILLINGWORTH, 124 FLA. 274, 168 SO. 249, ON WHICH THE COURT OF APPEALS
OF NEW YORK RELIED, DOES NOT SO HOLD.  THAT CASE WAS A SUGGESTION FOR A
WRIT OF PROHIBITION FILED IN THE SUPREME COURT OF FLORIDA TO PROHIBIT A
LOWER COURT OF RECORD FROM PROCEEDING ON A COMPLAINT FILED BY WILLYS'
DAUGHTER THAT HER STEPMOTHER'S DIVORCE FROM A FORMER HUSBAND WAS
FRAUDULENTLY OBTAINED.  THEREFORE, IT WAS ALLEGED, HER STEPMOTHER'S
MARRIAGE TO WILLYS WAS VOID AND THE STEPMOTHER HAD NO RIGHT OR INTEREST
AS WIDOW IN WILLYS' ESTATE.  THE WRIT OF PROHIBITION WAS GRANTED
BECAUSE OF IMPROPER VENUE OF THE COMPLAINT.  THE TWO OPINIONS INTIMATED
THAT A DAUGHTER, AS HEIR, COULD REPRESENT A DECEASED FATHER IN AN
ATTACK ON A STEPMOTHER'S FORMER DIVORCE.  FN13 NEITHER OF THE OPINIONS
NOR ANY OF THE FLORIDA CASES CITED COVER ANY SITUATION WHERE THE
DOCTRINE OF RES JUDICATA WAS OR MIGHT BE APPLIED.  THAT IS, NEITHER
WILLYS NOR HIS DAUGHTER WAS A PARTY TO THE STEPMOTHER'S DIVORCE
PROCEEDINGS.  IF THE LAWS OF FLORIDA SHOULD BE THAT A SURVIVING CHILD
IS IN PRIVITY WITH ITS PARENT AS TO THAT PARENT'S ESTATE, SURELY THE
FLORIDA DOCTRINE OF RES JUDICATA WOULD APPLY TO THE CHILD'S COLLATERAL
ATTACK AS IT WOULD TO THE FATHER'S.  FN14  IF, ON THE OTHER HAND,
FLORIDA HOLDS, AS NEW YORK DOES IN THIS CASE, THAT THE CHILD OF A
FORMER MARRIAGE IS A STRANGER TO THE DIVORCE PROCEEDINGS,  FN15  LATE
OPINIONS OF FLORIDA INDICATE THAT THE CHILD WOULD NOT BE PERMITTED TO
ATTACK THE DIVORCE, SINCE THE CHILD HAD A MERE EXPECTANCY AT THE TIME
OF THE DIVORCE. 

IN DEMARIGNY V. DEMARIGNY, 43 SO.2D 442, A SECOND WIFE SOUGHT TO HAVE
THE DIVORCE DECREE OF THE FIRST MARRIAGE DECLARED INVALID.  THE SUPREME
COURT OF FLORIDA HELD THAT THE PUTATIVE WIFE, BEING A STRANGER, WITHOUT
THEN EXISTING INTEREST, TO THE DIVORCE DECREE, COULD NOT IMPEACH IT.
IT QUOTED WITH APPROVAL 1 FREEMAN ON JUDGMENTS (5TH ED.)  636, SEC.
319: 

"IT IS ONLY THOSE STRANGERS WHO, IF THE JUDGMENT WERE GIVEN FULL
CREDIT AND EFFECT, WOULD BE PREJUDICED IN REGARD TO SOME PRE-EXISTING
RIGHT, THAT ARE PERMITTED TO IMPEACH THE JUDGMENT.  BEING NEITHER
PARTIES TO THE ACTION, NOR ENTITLED TO MANAGE THE CAUSE NOR APPEAL FROM
THE JUDGMENT, THEY ARE BY LAW ALLOWED TO IMPEACH IT WHENEVER IT IS
ATTEMPTED TO BE ENFORCED AGAINST THEM SO AS TO AFFECT RIGHTS OR
INTERESTS ACQUIRED PRIOR TO ITS RENDITION."  P. 447. 

SEE ALSO GAYLORD V. GAYLORD, 45 SO.2D 507.  THE DEMARIGNY CASE ALSO
REFUSED TO PERMIT THE PUTATIVE WIFE TO REPRESENT THE STATE IN AN EFFORT
TO REDRESS AN ALLEGED FRAUD ON THE COURT. 

WE CONCLUDE THAT FLORIDA WOULD NOT PERMIT MRS. MUELBERGER TO ATTACK
THE FLORIDA DECREE OF DIVORCE BETWEEN HER FATHER AND HIS SECOND WIFE AS
BEYOND THE JURISDICTION OF THE RENDERING COURT.  IN THAT CASE NEW YORK
CANNOT PERMIT SUCH AN ATTACK BY REASON OF THE FULL FAITH AND CREDIT
CLAUSE.  WHEN A DIVORCE CANNOT BE ATTACKED FOR LACK OF JURISDICTION BY
PARTIES ACTUALLY BEFORE THE COURT OR STRANGERS IN THE RENDERING STATE,
IT CANNOT BE ATTACKED BY THEM ANYWHERE IN THE UNION.  THE FULL FAITH
AND CREDIT CLAUSE FORBIDS.  REVERSED. 

FN1  "IN ORDER TO OBTAIN A DIVORCE THE COMPLAINANT MUST HAVE RESIDED
NINETY DAYS IN THE STATE OF FLORIDA BEFORE THE FILING OF THE BILL OF
COMPLAINT."  FLA. STAT. ANN., 1943, SEC. 65.02.  THIS HAS BEEN
CONSTRUED TO REQUIRE RESIDENCE FOR THE NINETY DAYS IMMEDIATELY
PRECEDING THE FILING DATE.  CURLEY V. CURLEY, 144 FLA. 728, 198 SO.
584.  MADOLINE ARRIVED IN FLORIDA FROM NEW YORK IN JUNE, AND FILED A
BILL OF COMPLAINT ON JULY 29. 

FN2  U.S. CONST., ART. IV, SEC. 1: 

"SECTION.  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." 

28 U.S.C. SEC. 1738: 

"SUCH ACTS, RECORDS AND JUDICIAL PROCEEDINGS OR COPIES THEREOF, SO
AUTHENTICATED, 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." 

FN3  JACKSON, FULL FAITH AND CREDIT - THE LAWYER'S CLAUSE OF THE
CONSTITUTION, 45 COL. L. REV. 1. 

FN4  SHERRER V. SHERRER, 334 U.S. 343, 355, AND CASES CITED; WILLIAMS
V. NORTH CAROLINA, 317 U.S. 287, 301, 303; RILEY V. NEW YORK TRUST CO.,
315 U.S. 343, 348-349.    FN5  DAVIS V. DAVIS, 305 U.S. 32, 40. 

FN6  SHERRER V. SHERRER, SUPRA, 355. 

FN7  DAVIS V. DAVIS, SUPRA, 41. 

FN8 TREINIES V. SUNSHINE MINING CO., 308 U.S. 66, 78. 

FN9  MILLS V. DURYEE, 7 CRANCH 481, 485. 

FN10  WILLIAMS V. NORTH CAROLINA I, SUPRA, 302. 

FN11  THIS WAS A PROCEEDING WHERE THE FORMER HUSBAND SOUGHT
PERMISSION, UNDER MASS. GEN. LAWS (TER.  ED.), C. 209, SEC. 36, TO
CONVEY REAL ESTATE AS IF HE WERE SOLE, BECAUSE LIVING APART FROM HIS
WIFE FOR JUSTIFIABLE CAUSES. 

FN12  THE DISSENT HIGHLIGHTS THE RULING:  "BUT THE REAL QUESTION HERE
IS WHETHER THE FULL FAITH AND CREDIT CLAUSE CAN BE USED AS A LIMITATION
ON THE POWER OF A STATE OVER ITS CITIZENS WHO DO NOT CHANGE THEIR
DOMICILE, WHO DO NOT REMOVE TO ANOTHER STATE, BUT WHO LEAVE THE STATE
ONLY LONG ENOUGH TO ESCAPE THE RIGORS OF ITS LAWS, OBTAIN A DIVORCE,
AND THEN SCURRY BACK.  TO HOLD THAT THIS MASSACHUSETTS STATUTE
CONTRAVENES THE FULL FAITH AND CREDIT CLAUSE IS TO SAY THAT THAT STATE
HAS SO SLIGHT A CONCERN IN THE CONTINUANCE OR TERMINATION OF THE
MARITAL RELATIONSHIPS OF ITS DOMICILIARIES THAT ITS INTEREST MAY BE
FORECLOSED BY AN ARRANGED LITIGATION BETWEEN THE PARTIES IN WHICH IT
WAS NOT REPRESENTED."  PP. 362-363. 

FN13  124 FLA. AT 278, 168 SO. AT 251: 

"THE RULE IS SETTLED IN THIS STATE THAT RESPONDENT BEING HEIR TO HER
FATHER'S ESTATE HAS A RIGHT TO QUESTION THE VALIDITY OF HIS MARRIAGE TO
PETITIONER.  RAWLINS V. RAWLINS (18 FLA. 345), AND KUEHMSTED V.
TURNWALL (103 FLA. 1180, 138 SO. 775), SUPRA."  THIS OBSERVATION WAS
NOT DIRECTED AT CIRCUMSTANCES WHERE RES JUDICATA COULD BIND THE
PARENT. 

FN14  WE FIND NOTHING IN THE FLORIDA CASES TO CAUSE US TO QUESTION
THE APPLICATION OF THE GENERAL RULE THAT RES JUDICATA APPLIES BETWEEN
PARTIES BOTH OF WHOM APPEARED IN PRIOR LITIGATION.  SEE SHERRER V.
SHERRER, 334 U.S. 343, 349, N. 11. 

FN15  SEE NOTE, STANDING OF CHILDREN TO ATTACK THEIR PARENTS' DIVORCE
DECREE, 50 COL. L. REV. 833. 

MR. JUSTICE FRANKFURTER DISSENTS, SUBSTANTIALLY FOR THE REASONS GIVEN
IN THE OPINION OF THE NEW YORK COURT OF APPEALS, 301 N.Y. 13, 92 N.E.2D
44, IN LIGHT OF THE VIEWS EXPRESSED BY HIM IN SHERRER V. SHERRER AND
COE V. COE, 334 U.S. 343, 356. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






ROGERS V. UNITED STATES, 340 U.S. 367 


NO. 20.  ARGUED NOVEMBER 7, 1950.  - DECIDED FEBRUARY 26, 1951.  - 179
F.2D 559, AFFIRMED. 


UNDER SUBPOENA, PETITIONER APPEARED BEFORE A FEDERAL GRAND JURY AND
TESTIFIED WITHOUT OBJECTION THAT SHE HAD BEEN TREASURER OF THE
COMMUNIST PARTY OF DENVER, HAD BEEN IN POSSESSION OF ITS RECORDS, AND
HAD TURNED THEM OVER TO ANOTHER PERSON; BUT SHE REFUSED TO IDENTIFY THE
PERSON TO WHOM SHE HAD DELIVERED THE RECORDS, GIVING AS HER ONLY REASON
HER WISH NOT TO SUBJECT ANOTHER PERSON TO WHAT SHE WAS GOING THROUGH. 
SHE WAS COMMITTED TO THE CUSTODY OF THE MARSHAL UNTIL THE NEXT DAY AND
ADVISED OF HER RIGHT TO COUNSEL.  ON THE NEXT DAY, HER COUNSEL INFORMED
THE COURT THAT, ON HIS ADVICE, PETITIONER WOULD ANSWER THE QUESTION TO
PURGE HERSELF OF CONTEMPT.  UPON HER REAPPEARANCE BEFORE THE GRAND
JURY, SHE AGAIN REFUSED TO ANSWER THE QUESTION.  BROUGHT BACK INTO
COURT AND CHARGED WITH CONTEMPT, SHE THEN, FOR THE FIRST TIME, ASSERTED
HER PRIVILEGE AGAINST SELF-INCRIMINATION.  HER CLAIM OF PRIVILEGE WAS
OVERRULED AND SHE WAS CONVICTED OF CONTEMPT.  HELD:  THE CONVICTION IS
SUSTAINED.  PP. 368-375. 

(A)  SINCE THE PRIVILEGE AGAINST SELF-INCRIMINATION IS SOLELY FOR THE
BENEFIT OF THE WITNESS, PETITIONER'S ORIGINAL REFUSAL TO ANSWER COULD
NOT BE JUSTIFIED BY A DESIRE TO PROTECT ANOTHER FROM PUNISHMENT, MUCH
LESS TO PROTECT ANOTHER FROM INTERROGATION BY A GRAND JURY.  P. 371. 

(B)  BOOKS AND RECORDS KEPT IN A REPRESENTATIVE, RATHER THAN A
PERSONAL, CAPACITY CANNOT BE THE SUBJECT OF THE PERSONAL PRIVILEGE
AGAINST SELF-INCRIMINATION, EVEN THOUGH PRODUCTION OF THEM MIGHT TEND
TO INCRIMINATE THEIR KEEPER PERSONALLY.  PP. 371-372. 

(C)  HAVING FREELY ANSWERED SELF-INCRIMINATING QUESTIONS RELATING TO
HER CONNECTION WITH THE COMMUNIST PARTY, PETITIONER COULD NOT REFUSE TO
ANSWER FURTHER QUESTIONS WHICH WOULD NOT SUBJECT HER TO A REAL DANGER
OF FURTHER INCRIMINATION.  PP. 372-375. 

(D)  QUESTIONS RELATING TO ACTIVITIES IN THE COMMUNIST PARTY ARE
INCRIMINATING, BOTH AS TO A VIOLATION OF THE SMITH ACT AND AS TO A
CONSPIRACY TO VIOLATE THAT ACT, BLAU V. UNITED STATES, 340 U.S. 159. 
P. 375. 

ROGERS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

IN A FEDERAL DISTRICT COURT, PETITIONER WAS CONVICTED OF CONTEMPT FOR
REFUSAL TO ANSWER QUESTIONS ASKED BY A FEDERAL GRAND JURY.  THE COURT
OF APPEALS AFFIRMED.  179 F.2D 559.  THIS COURT GRANTED CERTIORARI. 
339 U.S. 956.  AFFIRMED, P. 375. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES OUT OF AN INVESTIGATION BY THE REGULARLY CONVENED
GRAND JURY OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO.  THE BOOKS AND RECORDS OF THE COMMUNIST PARTY OF DENVER WERE
SOUGHT AS NECESSARY TO THAT INQUIRY AND WERE THE SUBJECT OF QUESTIONING
BY THE GRAND JURY.  IN SEPTEMBER, 1948, PETITIONER, IN RESPONSE TO A
SUBPOENA, APPEARED BEFORE THE GRAND JURY.  SHE TESTIFIED THAT SHE HELD
THE POSITION OF TREASURER OF THE COMMUNIST PARTY OF DENVER UNTIL
JANUARY, 1948, AND THAT, BY VIRTUE OF HER OFFICE, SHE HAD BEEN IN
POSSESSION OF MEMBERSHIP LISTS AND DUES RECORDS OF THE PARTY. 
PETITIONER DENIED HAVING POSSESSION OF THE RECORDS AND TESTIFIED THAT
SHE HAD TURNED THEM OVER TO ANOTHER.  BUT SHE REFUSED TO IDENTIFY THE
PERSON TO WHOM SHE HAD GIVEN THE PARTY'S BOOKS, STATING TO THE COURT AS
HER ONLY REASON:  "I DON'T FEEL THAT I SHOULD SUBJECT A PERSON OR
PERSONS TO THE SAME THING THAT I'M GOING THROUGH."  FN1  THE COURT
THEREUPON COMMITTED PETITIONER TO THE CUSTODY OF THE MARSHAL UNTIL TEN
O'CLOCK THE NEXT MORNING, EXPRESSLY ADVISING PETITIONER OF HER RIGHT TO
CONSULT WITH COUNSEL.  FN2 

THE NEXT DAY, COUNSEL FOR PETITIONER INFORMED THE COURT THAT HE HAD
READ THE TRANSCRIPT OF THE PRIOR DAY'S PROCEEDINGS AND THAT, UPON HIS
ADVICE, PETITIONER WOULD ANSWER THE QUESTIONS TO PURGE HERSELF OF
CONTEMPT.  FN3  HOWEVER, UPON REAPPEARING BEFORE THE GRAND JURY,
PETITIONER AGAIN REFUSED TO ANSWER THE QUESTION.  THE FOLLOWING DAY SHE
WAS AGAIN BROUGHT INTO COURT.  CALLED BEFORE THE DISTRICT JUDGE
IMMEDIATELY AFTER HE HAD HEARD ORAL ARGUMENT CONCERNING THE PRIVILEGE
AGAINST SELF-INCRIMINATION IN ANOTHER CASE, PETITIONER REPEATED HER
REFUSAL TO ANSWER THE QUESTION, ASSERTING THIS TIME THE PRIVILEGE
AGAINST SELF-INCRIMINATION N4.  AFTER RULING THAT HER REFUSAL WAS NOT
PRIVILEGED, THE DISTRICT JUDGE IMPOSED A SENTENCE OF FOUR MONTHS FOR
CONTEMPT.  THE COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED, 179
F.2D 559(1950), AND WE GRANTED CERTIORARI, 339 U.S. 956(1950). 

IF PETITIONER DESIRED THE PROTECTION OF THE PRIVILEGE AGAINST SELF
INCRIMINATION, SHE WAS REQUIRED TO CLAIM IT.  UNITED STATES V. MONIA,
317 U.S. 424, 427(1943).  THE PRIVILEGE "IS DEEMED WAIVED UNLESS
INVOKED."  UNITED STATES V. MURDOCK, 284 U.S. 141, 148(1931).  FN5
FURTHERMORE, THE DECISIONS OF THIS COURT ARE EXPLICIT IN HOLDING THAT
THE PRIVILEGE AGAINST SELF-INCRIMINATION "IS SOLELY FOR THE BENEFIT OF
THE WITNESS,"  FN6  AND "IS PURELY A PERSONAL PRIVILEGE OF THE
WITNESS."  FN7  PETITIONER EXPRESSLY PLACED HER ORIGINAL DECLINATION TO
ANSWER ON AN UNTENABLE GROUND, SINCE A REFUSAL TO ANSWER CANNOT BE
JUSTIFIED BY A DESIRE TO PROTECT OTHERS FROM PUNISHMENT,  FN8  MUCH
LESS TO PROTECT ANOTHER FROM INTERROGATION BY A GRAND JURY. 
PETITIONER'S CLAIM OF THE PRIVILEGE AGAINST SELF-INCRIMINATION WAS PURE
AFTERTHOUGHT.  ALTHOUGH THE CLAIM WAS MADE AT THE TIME OF HER SECOND
REFUSAL TO ANSWER IN THE PRESENCE OF THE COURT, IT CAME ONLY AFTER SHE
HAD VOLUNTARILY TESTIFIED TO HER STATUS AS AN OFFICER OF THE COMMUNIST
PARTY OF DENVER.  TO UPHOLD A CLAIM OF PRIVILEGE IN THIS CASE WOULD
OPEN THE WAY TO DISTORTION OF FACTS BY PERMITTING A WITNESS TO SELECT
ANY STOPPING PLACE IN THE TESTIMONY. 

THE PRIVILEGE AGAINST SELF-INCRIMINATION, EVEN IF CLAIMED AT THE TIME
THE QUESTION AS TO THE NAME OF THE PERSON TO WHOM PETITIONER TURNED
OVER THE PARTY RECORDS WAS ASKED, WOULD NOT JUSTIFY HER REFUSAL TO
ANSWER.  AS A PRELIMINARY MATTER, WE NOTE THAT PETITIONER HAD NO
PRIVILEGE WITH RESPECT TO THE BOOKS OF THE PARTY, WHETHER IT BE A
CORPORATION  FN9  OR AN UNINCORPORATED ASSOCIATION.  FN10  BOOKS AND
RECORDS KEPT "IN A REPRESENTATIVE RATHER THAN IN A PERSONAL CAPACITY
CANNOT BE THE SUBJECT OF THE PERSONAL PRIVILEGE AGAINST SELF
INCRIMINATION, EVEN THOUGH PRODUCTION OF THE PAPERS MIGHT TEND TO
INCRIMINATE (THEIR KEEPER) PERSONALLY."  UNITED STATES V. WHITE, 322
U.S. 694, 699(1944).  FN11  SINCE PETITIONER'S CLAIM OF PRIVILEGE
CANNOT BE ASSERTED IN RELATION TO THE BOOKS AND RECORDS SOUGHT BY THE
GRAND JURY, THE ONLY CLAIM FOR REVERSAL OF HER CONVICTION RESTS ON THE
GROUND THAT MERE DISCLOSURE OF THE NAME OF THE RECIPIENT OF THE BOOKS
TENDS TO INCRIMINATE. 

IN PATRICIA BLAU V. UNITED STATES, 340 U.S. 159(1950), WE HELD THAT
QUESTIONS AS TO CONNECTIONS WITH THE COMMUNIST PARTY ARE SUBJECT TO THE
PRIVILEGE AGAINST SELF-INCRIMINATION AS CALLING FOR DISCLOSURE OF FACTS
TENDING TO CRIMINATE UNDER THE SMITH ACT.  FN12  BUT PETITIONER'S
CONVICTION STANDS ON AN ENTIRELY DIFFERENT FOOTING, FOR SHE HAD FREELY
DESCRIBED HER MEMBERSHIP, ACTIVITIES AND OFFICE IN THE PARTY.  SINCE
THE PRIVILEGE AGAINST SELF-INCRIMINATION PRESUPPOSES A REAL DANGER OF
LEGAL DETRIMENT ARISING FROM THE DISCLOSURE, PETITIONER CANNOT INVOKE
THE PRIVILEGE WHERE RESPONSE TO THE SPECIFIC QUESTION IN ISSUE HERE
WOULD NOT FURTHER INCRIMINATE HER.  DISCLOSURE OF A FACT WAIVES THE
PRIVILEGE AS TO DETAILS.  AS THIS COURT STATED IN BROWN V. WALKER, 161
U.S. 591, 597(1896): 

"THUS, IF THE WITNESS HIMSELF ELECTS TO WAIVE HIS PRIVILEGE, AS HE
MAY DOUBTLESS DO, SINCE THE PRIVILEGE IS FOR HIS PROTECTION AND NOT FOR
THAT OF OTHER PARTIES, AND DISCLOSES HIS CRIMINAL CONNECTIONS, HE IS
NOT PERMITTED TO STOP, BUT MUST GO ON AND MAKE A FULL DISCLOSURE." 
FN13 

FOLLOWING THIS RULE, FEDERAL COURTS HAVE UNIFORMLY HELD THAT, WHERE
CRIMINATING FACTS HAVE BEEN VOLUNTARILY REVEALED, THE PRIVILEGE CANNOT
BE INVOKED TO AVOID DISCLOSURE OF THE DETAILS.  FN14 THE DECISIONS OF
THIS COURT IN ARNDSTEIN V. MCCARTHY, 254 U.S. 71(1920), AND MCCARTHY V.
ARNDSTEIN, 262 U.S. 355(1923), FURTHER SUPPORT THE CONVICTION IN THIS
CASE FOR, IN SUSTAINING THE PRIVILEGE ON EACH APPEAL, THE COURT
STRESSED THE ABSENCE OF ANY PREVIOUS "ADMISSION OF GUILT OR
INCRIMINATING FACTS,"  FN15  AND RELIED PARTICULARLY UPON BROWN V.
WALKER, SUPRA, AND FOSTER V. PEOPLE, 18 MICH. 266(1869).  THE HOLDING
OF THE MICHIGAN COURT IS ENTIRELY APPOSITE HERE: 

"(WHERE) A WITNESS HAS VOLUNTARILY ANSWERED AS TO MATERIALLY
CRIMINATING FACTS, IT IS HELD WITH UNIFORMITY THAT HE CANNOT THEN STOP
SHORT AND REFUSE FURTHER EXPLANATION, BUT MUST DISCLOSE FULLY WHAT HE
HAS ATTEMPTED TO RELATE."  18 MICH. AT 276.  FN16 

REQUIRING FULL DISCLOSURE OF DETAILS AFTER A WITNESS FREELY TESTIFIES
AS TO A CRIMINATING FACT DOES NOT REST UPON A FURTHER "WAIVER" OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION.  ADMITTEDLY, PETITIONER HAD
ALREADY "WAIVED" HER PRIVILEGE OF SILENCE WHEN SHE FREELY ANSWERED
CRIMINATING QUESTIONS RELATING TO HER CONNECTION WITH THE COMMUNIST
PARTY.  BUT WHEN PETITIONER WAS ASKED TO FURNISH THE NAME OF THE PERSON
TO WHOM SHE TURNED OVER PARTY RECORDS, THE COURT WAS REQUIRED TO
DETERMINE, AS IT MUST WHENEVER THE PRIVILEGE IS CLAIMED, WHETHER THE
QUESTION PRESENTED A REASONABLE DANGER OF FURTHER CRIMINATION IN LIGHT
OF ALL THE CIRCUMSTANCES, INCLUDING ANY PREVIOUS DISCLOSURES.  AS TO
EACH QUESTION TO WHICH A CLAIM OF PRIVILEGE IS DIRECTED, THE COURT MUST
DETERMINE WHETHER THE ANSWER TO THAT PARTICULAR QUESTION WOULD SUBJECT
THE WITNESS TO A "REAL DANGER" OF FURTHER CRIMINATION.  FN17  AFTER
PETITIONER'S ADMISSION THAT SHE HELD THE OFFICE OF TREASURER OF THE
COMMUNIST PARTY OF DENVER, DISCLOSURE OF ACQUAINTANCE WITH HER
SUCCESSOR PRESENTS NO MORE THAN A "MERE IMAGINARY POSSIBILITY"  FN18
OF INCREASING THE DANGER OF PROSECUTION.  FN19 

PETITIONER'S CONTENTION IN THE COURT OF APPEALS AND IN THIS COURT HAS
BEEN THAT, CONCEDING HER PRIOR VOLUNTARY CRIMINATION AS TO ONE ELEMENT
OF PROOF OF A SMITH ACT VIOLATION, DISCLOSURE OF THE NAME OF THE
RECIPIENT OF THE PARTY RECORDS WOULD TEND TO INCRIMINATE AS TO THE
DIFFERENT CRIME OF CONSPIRACY TO VIOLATE THE SMITH ACT.  OUR OPINION IN
PATRICIA BLAU V. UNITED STATES, SUPRA, AT 161, EXPLICITLY REJECTS
PETITIONER'S ARGUMENT FOR REVERSAL HERE IN ITS HOLDING THAT QUESTIONS
RELATING TO ACTIVITIES IN THE COMMUNIST PARTY ARE CRIMINATING BOTH AS
TO "VIOLATION OF (OR CONSPIRACY TO VIOLATE) THE SMITH ACT."  OF COURSE,
AT LEAST TWO PERSONS ARE REQUIRED TO CONSTITUTE A CONSPIRACY, BUT THE
IDENTITY OF THE OTHER MEMBERS OF THE CONSPIRACY IS NOT NEEDED, INASMUCH
AS ONE PERSON CAN BE CONVICTED OF CONSPIRING WITH PERSONS WHOSE NAMES
ARE UNKNOWN.  FN20  AFFIRMED. 

FN1  TRANSCRIPT, P. 39(SEPTEMBER 21, 1948): 

"THE COURT:  NOW, WHAT IS THE QUESTION? 

"MR. GOLDSCHEIN:  WHO HAS THE BOOKS AND RECORDS OF THE COMMUNIST
PARTY OF DENVER NOW.  WHO DID MRS. ROGERS GIVE THOSE BOOKS UP TO AS SHE
SAYS SHE GAVE THEM UP IN JANUARY OF THIS YEAR. 

"THE COURT:  DO YOU CARE TO ANSWER THAT QUESTION, MADAM? 

"MRS. ROGERS:  I DO NOT. 

"THE COURT:  WHAT? 

"MRS. ROGERS:  I DO NOT, AND THAT'S WHAT I TOLD THEM. 

"THE COURT:  WHY WON'T YOU ANSWER? 

"MRS. ROGERS:  I DON'T FEEL THAT I SHOULD SUBJECT A PERSON OR PERSONS
TO THE SAME THING THAT I'M GOING THROUGH. 

"THE COURT:  IT IS THE ORDER OR FINDING OF THE COURT THAT YOU SHOULD
ANSWER THOSE QUESTIONS.  NOW, WILL YOU DO THAT? 

"MRS. ROGERS:  NO." 

FN2  TRANSCRIPT, P. 40(SEPTEMBER 21, 1948): 

"THE COURT:  YOU WILL BE DETAINED UNTIL TOMORROW MORNING UNTIL TEN
O'CLOCK.  IN THE MEANTIME, YOU MAY CONSULT COUNSEL AND HAVE A HEARING
TOMORROW MORNING AT TEN O'CLOCK ON YOUR REASONS FOR REFUSAL TO ANSWER
QUESTIONS. 

"MRS. ROGERS:  I CAN CONSULT COUNSEL BETWEEN NOW AND THEN? 

"THE COURT:  YES, BUT YOU WILL BE IN THE CUSTODY OF THE MARSHAL ALL
THE TIME.  GET YOUR COUNSEL AND BRING HIM OVER HERE IF YOU WANT TO, BUT
YOU WILL HAVE TO BE IN THE CUSTODY OF THE MARSHAL AND SPEND THE NIGHT
IN JAIL, I'M AFRAID." 

FN3  TRANSCRIPT, PP. 43, 49(SEPTEMBER 22, 1948): 

"MR. MENIN (AFTER ENTERING HIS APPEARANCE ON BEHALF OF PETITIONER):
IN REGARD TO THE WITNESS ROGERS, I'VE READ THE TRANSCRIPT OF WHAT HAS
TRANSPIRED IN COURT HERE YESTERDAY; AND I BELIEVE THAT UPON MY ADVICE
SHE WILL ANSWER QUESTIONS WHICH WERE PROPOUNDED TO HER. 

.         .         .         .         . 

"MR. MENIN:  AS TO THE WITNESS JANE ROGERS, I THINK SHE WILL PURGE
HERSELF OF HER CONTEMPT BY ANSWERING THE QUESTIONS. 

"THE COURT:  IN THE CASE OF THE WITNESS ROGERS, THEN, THE ORDER OF
THE COURT IS THAT SHE RETURN TO THE GRAND JURY ROOM AND IF SHE PURGES
HERSELF OF CONTEMPT, THEN UPON BRINGING THE MATTER BACK TO THE COURT,
SHE WILL BE DISCHARGED.  IN THE MEANTIME, SHE WILL REMAIN IN CUSTODY." 

FN4  "NO PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF ...  "  U.S. CONST., AMEND. V. THE PROCEEDINGS
LEADING TO THE CLAIM OF PRIVILEGE BY PETITIONER APPEAR AT TRANSCRIPT,
PP. 77-78(SEPTEMBER 23, 1948): 

"THE COURT:  ...  MADAM, DO YOU STILL PERSIST IN NOT ANSWERING THESE
QUESTIONS? 

"MRS. ROGERS:  WELL, ON THE BASIS OF MR. MENIN'S STATEMENTS THIS
MORNING - 

"THE COURT:  WILL YOU PLEASE ANSWER THE QUESTION YES OR NO? 

"MRS. ROGERS:  WELL, I THINK THAT'S RATHER UNDEMOCRATIC(.)  I'M A
VERY HONEST PERSON.  WOULD YOU MIND LETTING ME CONSIDER - 

"THE COURT:  MAKE ANY STATEMENT YOU WISH. 

"MRS. ROGERS:  WELL, AS I SAID BEFORE, I'M A VERY HONEST PERSON AND
I'M NOT ACQUAINTED WITH THE TRICKS OF LEGAL PROCEDURE, BUT I UNDERSTAND
FROM THE READING OF THESE CASES THIS MORNING THAT I AM - AND I DO HAVE
A RIGHT TO REFUSE TO ANSWER THESE QUESTIONS, ON THE BASIS THAT THEY
WOULD TEND TO INCRIMINATE ME, AND YOU READ IT YOURSELF, THAT I HAVE A
RIGHT TO DECIDE THAT. 

"THE COURT:  YOU HAVE NOT THE RIGHT TO SAY. 

"MRS. ROGERS:  ACCORDING TO WHAT YOU READ, I DO.  I STAND ON THAT. 

"THE COURT:  ALL RIGHT.  IF YOU WILL MAKE NO CHANGES, IT IS THE
JUDGMENT AND SENTENCE OF THE COURT YOU BE CONFINED TO THE CUSTODY OF
THE ATTORNEY GENERAL FOR FOUR MONTHS.  CALL THE NEXT CASE." 

FN5  CITING VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273 U.S. 103,
113(1927).  SEE SMITH V. UNITED STATES, 337 U.S. 137, 147(1949);
CORWIN, THE SUPREME COURT'S CONSTRUCTION OF THE SELF-INCRIMINATION
CLAUSE, 29 MICH. L. REV. 1, 198-199(1930). 

FN6  UNITED STATES V. MURDOCK, 284 U.S. 141, 148(1931). 

FN7  HALE V. HENKEL, 201 U.S. 43, 69(1906).  MCALISTER V. HENKEL, 201
U.S. 90, 91(1906). 

FN8  BROWN V. WALKER, 161 U.S. 591, 609(1896); HALE V. HENKEL, 201
U.S. 43, 69-70(1906). 

FN9  WILSON V. UNITED STATES, 221 U.S. 361(1911); WHEELER V. UNITED
STATES, 226 U.S. 478(1913); GRANT V. UNITED STATES, 227 U.S. 74(1913);
ESSGEE CO. V. UNITED STATES, 262 U.S. 151(1923). 

FN10  BROWN V. UNITED STATES, 276 U.S. 134(1928); UNITED STATES V.
WHITE, 322 U.S. 694(1944).  CF. UNITED STATES V. FLEISCHMAN, 339 U.S.
349, 358(1950). 

FN11  SEE ALSO THE CASES CITED IN NOTES 7 AND 8, SUPRA.  THE
PRIVILEGE DOES NOT ATTACH TO THE BOOKS OF AN ORGANIZATION, WHETHER OR
NOT THE BOOKS IN QUESTION ARE "REQUIRED RECORDS" OF THE TYPE CONSIDERED
IN SHAPIRO V. UNITED STATES, 335 U.S. 1(1948).    FN12  MEMBERSHIP IN
THE COMMUNIST PARTY WAS NOT, OF ITSELF, A CRIME AT THE TIME THE
QUESTIONS IN THIS CASE WERE ASKED.  AND CONGRESS HAS SINCE EXPRESSLY
PROVIDED, IN THE INTERNAL SECURITY ACT OF 1950, ACT OF SEPT. 23, 1950,
64 STAT. 987, 992, SEC. 4(F), THAT "NEITHER THE HOLDING OF OFFICE NOR
MEMBERSHIP IN ANY COMMUNIST ORGANIZATION BY ANY PERSON SHALL CONSTITUTE
PER SE A VIOLATION OF SUBSECTION (A) OR SUBSECTION (C) OF THIS SECTION
OR OF ANY OTHER CRIMINAL STATUTE."  WE, OF COURSE, EXPRESS NO OPINION
AS TO THE IMPLICATIONS OF THIS LEGISLATION UPON THE ISSUES PRESENTED BY
THESE CASES. 

FN13  QUOTED WITH APPROVAL IN POWERS V. UNITED STATES, 223 U.S. 303,
314(1912).    FN14  UNITED STATES V. ST. PIERRE, 132 F.2D 837(C.A.2D
CIR., 1942); BUCKEYE POWDER CO. V. HAZARD POWDER CO., 205 F. 827,
829(D.C. CONN., 1913). 

FN15  262 U.S. AT 359.  THE ARNDSTEIN APPEALS, LIKE THE PRESENT CASE,
AROSE OUT OF AN INVOLUNTARY EXAMINATION.  THE COURT RESERVED, AS WE DO
HERE, THE PROBLEMS ARISING OUT OF A POSSIBLE ABUSE OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION IN ADVERSARY PROCEEDINGS.  COMPARE STATE
COURT DECISIONS COLLECTED IN 147 A.L.R. 255(1943). 

FN16  VIII WIGMORE, EVIDENCE (1940), SEC. 2276, QUOTES FROM FOSTER V.
PEOPLE, 18 MICH. 266(1869), AS AUTHORITATIVE AND SUMMARIZES THE LAW AS
FOLLOWS: 

"THE CASE OF THE ORDINARY WITNESS CAN HARDLY PRESENT ANY DOUBT.  HE
MAY WAIVE HIS PRIVILEGE; THIS IS CONCEDED.  HE WAIVES IT BY EXERCISING
HIS OPTION OF ANSWERING; THIS IS CONCEDED.  THUS THE ONLY INQUIRY CAN
BE WHETHER, BY ANSWERING AS TO FACT X, HE WAIVED IT FOR FACT Y. IF THE
TWO ARE RELATED FACTS, PARTS OF A WHOLE FACT FORMING A SINGLE RELEVANT
TOPIC, THEN HIS WAIVER AS TO A PART IS A WAIVER AS TO THE REMAINING
PARTS; BECAUSE THE PRIVILEGE EXISTS FOR THE SAKE OF THE CRIMINATING
FACT AS A WHOLE." 

FN17  HEIKE V. UNITED STATES, 227 U.S. 131, 144(1913).  BROWN V.
WALKER, 161 U.S. 591, 600(1896). 

FN18  MASON V. UNITED STATES, 244 U.S. 362, 366(1917). 

FN19  UNITED STATES V. ST. PIERRE, 132 F.2D 837(C.A.2D CIR., 1942),
PRESENTED A CLOSER QUESTION SINCE THE "DETAIL" WHICH ST. PIERRE WAS
REQUIRED TO DIVULGE WOULD IDENTIFY A PERSON WITHOUT WHOSE TESTIMONY ST.
PIERRE COULD NOT HAVE BEEN CONVICTED OF A CRIME.  WE, OF COURSE, DO NOT
HERE PASS UPON THE PRECISE FACTUAL QUESTION THERE DECIDED BY THE COURT
OF APPEALS. 

FN20  BROWNE V. UNITED STATES, 145 F. 1, 13(C.A.2D CIR., 1905);
DONEGAN V. UNITED STATES, 287 F. 641, 648(C.A.2D CIR., 1922); POMERANTZ
V. UNITED STATES, 51 F.2D 911, 913(C.A. 3D CIR., 1931); GROVE V. UNITED
STATES, 3 F.2D 965, 967(C.A.4TH CIR., 1925); MCDONALD V. UNITED STATES,
9 F.2D 506, 507(C.A.8TH CIR., 1925); ROSENTHAL V. UNITED STATES, 45
F.2D 1000, 1003(C.A.8TH CIR., 1930); DIDENTI V. UNITED STATES, 44 F.2D
537, 538(C.A.9TH CIR., 1930).  SEE ALSO FEDER V. UNITED STATES, 257 F.
694, 697(C.A.2D CIR., 1919); WORTHINGTON V. UNITED STATES, 64 F.2D 936,
939(C.A.7TH CIR., 1933). 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

SOME PEOPLE ARE HOSTILE TO THE FIFTH AMENDMENT'S PROVISION
UNEQUIVOCALLY COMMANDING THAT NO UNITED STATES OFFICIAL SHALL COMPEL A
PERSON TO BE A WITNESS AGAINST HIMSELF.  THEY CONSIDER THE PROVISION AS
AN OUTMODED RELIC OF PAST FEARS GENERATED BY ANCIENT INQUISITORIAL
PRACTICES THAT COULD NOT POSSIBLY HAPPEN HERE.  FOR THIS REASON THE
PRIVILEGE TO BE SILENT IS SOMETIMES ACCEPTED AS BEING MORE OR LESS OF A
CONSTITUTIONAL NUISANCE WHICH THE COURTS SHOULD ABATE WHENEVER AND
HOWEVER POSSIBLE.  SUCH AN END COULD BE ACHIEVED BY TWO OBVIOUS
JUDICIAL TECHNIQUES:  (1) NARROW CONSTRUCTION OF THE SCOPE OF THE
PRIVILEGE; (2) BROAD CONSTRUCTION OF THE DOCTRINE OF "WAIVER."  ANY
ATTEMPT TO USE THE FIRST OF THESE METHODS, HOWEVER, RUNS AFOUL OF
APPROXIMATELY 150 YEARS OF PRECEDENT.  SEE PATRICIA BLAU V. UNITED
STATES, 340 U.S. 159, AND CASES THERE CITED.  THIS COURT HAS ALMOST
ALWAYS CONSTRUED THE AMENDMENT BROADLY  FN1  ON THE VIEW THAT
COMPELLING A PERSON TO CONVICT HIMSELF OF CRIME IS "CONTRARY TO THE
PRINCIPLES OF A FREE GOVERNMENT" AND "ABHORRENT TO THE INSTINCTS OF AN
AMERICAN"; THAT WHILE SUCH A COERCIVE PRACTICE "MAY SUIT THE PURPOSES
OF DESPOTIC POWER  ...  IT CANNOT ABIDE THE PURE ATMOSPHERE OF
POLITICAL LIBERTY AND PERSONAL FREEDOM."  BOYD V. UNITED STATES, 116
U.S. 616, 632; BUT CF. UNITED STATES V. MURDOCK, 284 U.S. 141. 

THE DOCTRINE OF WAIVER SEEMS TO BE A MORE PALATABLE BUT EQUALLY
EFFECTIVE DEVICE FOR WHITTLING AWAY THE PROTECTION AFFORDED BY THE
PRIVILEGE, ALTHOUGH I THINK TODAY'S APPLICATION OF THAT DOCTRINE CANNOT
BE SUPPORTED BY OUR PAST DECISIONS.  OF COURSE, IT HAS NEVER BEEN
DOUBTED THAT A CONSTITUTIONAL RIGHT COULD BE INTENTIONALLY RELINQUISHED
AND THAT SUCH AN INTENTION MIGHT BE FOUND FROM A "COURSE OF CONDUCT." 
SHEPARD V. BARRON, 194 U.S. 553, 568.  BUT WE HAVE SAID THAT INTENTION
TO WAIVE THE PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT "LIGHTLY TO BE
INFERRED" AND THAT VAGUE AND UNCERTAIN EVIDENCE WILL NOT SUPPORT A
FINDING OF WAIVER.  SMITH V. UNITED STATES, 337 U.S. 137, 150, RELYING
ON JOHNSON V. ZERBST, 304 U.S. 458, 464, AND CASES THERE CITED.  IN THE
CASE OF THIS PETITIONER, THERE IS NO EVIDENCE THAT SHE INTENDED TO GIVE
UP HER PRIVILEGE OF SILENCE CONCERNING THE PERSONS IN POSSESSION OF THE
COMMUNIST PARTY RECORDS.  TO THE CONTRARY, THE RECORD - AS SET OUT IN
THE COURT'S OPINION - SHOWS SHE INTENDED TO AVOID ANSWERING THE
QUESTION ON WHATEVER GROUND MIGHT BE AVAILABLE AND ASSERTED THE
PRIVILEGE AGAINST SELF-INCRIMINATION AT THE FIRST MOMENT SHE BECAME
AWARE OF ITS EXISTENCE.  FN2  THIS FACT AND THE CASES WHICH MAKE IT
CRUCIAL ARE IGNORED IN THE DECISION TODAY. 

APPARENTLY, THE COURT'S HOLDING IS THAT AT SOME UNCERTAIN POINT IN
PETITIONER'S TESTIMONY, REGARDLESS OF HER INTENTION, ADMISSION OF
ASSOCIATIONS WITH THE COMMUNIST PARTY AUTOMATICALLY EFFECTED A "WAIVER"
OF HER CONSTITUTIONAL PROTECTION AS TO ALL RELATED QUESTIONS.  FN3  TO
ADOPT SUCH A RULE FOR THE PRIVILEGE AGAINST SELF-INCRIMINATION, WHEN
OTHER CONSTITUTIONAL SAFEGUARDS MUST BE KNOWINGLY WAIVED, RELEGATES THE
FIFTH AMENDMENT'S PRIVILEGE TO A SECOND-RATE POSITION.  MOREOVER,
TODAY'S HOLDING CREATES THIS DILEMMA FOR WITNESSES:  ON THE ONE HAND,
THEY RISK IMPRISONMENT FOR CONTEMPT BY ASSERTING THE PRIVILEGE
PREMATURELY; ON THE OTHER, THEY MIGHT LOSE THE PRIVILEGE IF THEY ANSWER
A SINGLE QUESTION.  THE COURT'S VIEW MAKES THE PROTECTION DEPEND ON
TIMING SO REFINED THAT LAWYERS, LET ALONE LAYMEN, WILL HAVE DIFFICULTY
IN KNOWING WHEN TO CLAIM IT.  FN4  IN THIS VERY CASE, IT NEVER OCCURRED
TO THE TRIAL JUDGE THAT PETITIONER WAIVED ANYTHING.  FN5  AND EVEN IF
VOLUNTARY TESTIMONY CAN UNDER SOME CIRCUMSTANCES WORK A WAIVER, IT DID
NOT DO SO HERE BECAUSE WHAT PETITIONER STATED TO THE GRAND JURY
"STANDING ALONE DID NOT AMOUNT TO AN ADMISSION OF GUILT OR FURNISH
CLEAR PROOF OF CRIME  ...  "  ARNDSTEIN V. MCCARTHY, 254 U.S. 71, 72. 
FN6 

FURTHERMORE, UNLIKE THE COURT, I BELIEVE THAT THE QUESTION WHICH
PETITIONER REFUSED TO ANSWER DID CALL FOR ADDITIONAL INCRIMINATING
INFORMATION.  SHE WAS ASKED THE NAMES OF THE PERSONS TO WHOM SHE HAD
TURNED OVER THE COMMUNIST PARTY BOOKS AND RECORDS.  HER ANSWER WOULD
NOT ONLY HAVE BEEN RELEVANT IN ANY FUTURE PROSECUTION OF PETITIONER FOR
VIOLATION OF THE SMITH ACT BUT ALSO HER CONVICTION MIGHT DEPEND ON
TESTIMONY OF THE WITNESSES SHE WAS THUS ASKED TO IDENTIFY.  FOR THESE
REASONS THE QUESTION SOUGHT A DISCLOSURE WHICH WOULD HAVE BEEN
INCRIMINATING TO THE HIGHEST DEGREE.  CERTAINLY NO ONE CAN SAY THAT THE
ANSWER "(COULD NOT) POSSIBLY BE USED AS A BASIS FOR, OR IN AID OF, A
CRIMINAL PROSECUTION AGAINST THE WITNESS  ...  "  BROWN V. WALKER, 161
U.S. 591, 597.  FN7 

THE RECORDS IN THIS AND IN THE COMPANION CASES  FN8  REVEAL A
FLAGRANT DISREGARD OF THE CONSTITUTIONAL PRIVILEGES OF PETITIONER AND
OTHERS CALLED BEFORE THE GRAND JURY.  THE SPECIAL UNITED STATES
ATTORNEY IN CHARGE MADE UNWARRANTED ASSURANCES THAT MIGHT WELL HAVE
MISLED WITNESSES UNABLE TO MATCH LEGAL WITS WITH HIM INTO MAKING SELF
INCRIMINATING ADMISSIONS.  FN9  ALTHOUGH PETITIONER HAD BEEN ALLOWED ON
A PREVIOUS DAY TO CONSULT WITH COUNSEL, AT THE TIME SHE WAS BROUGHT
BEFORE THE DISTRICT COURT FOR FINAL CONSIDERATION OF HER CASE THE JUDGE
ARBITRARILY REFUSED TO PERMIT COUNSEL TO SPEAK IN HER BEHALF, SUMMARILY
COMMANDING THE ATTORNEY TO SIT DOWN, AND ALMOST IMMEDIATELY THEREAFTER
SENTENCED PETITIONER TO FOUR MONTHS' IMPRISONMENT.  FN10  IN CONVICTING
HER, THE DISTRICT JUDGE NEITHER HELD NOR INTIMATED THAT THE PRIVILEGE
AGAINST SELF-INCRIMINATION HAD BEEN WAIVED.  FN11  HIS ERRONEOUS BELIEF
WAS THAT INTIMATE ASSOCIATION WITH THE COMMUNIST PARTY WAS NOT AN
INCRIMINATING FACT.  THEREFORE, ALTHOUGH THE COURT NOW DESCRIBES
PETITIONER'S CLAIM OF PRIVILEGE AS AN "AFTERTHOUGHT," IT SEEMS TO ME
THAT THE REAL "AFTERTHOUGHT" IN THIS CASE IS THE AFFIRMANCE OF THE
JUDGMENT BELOW ON A "WAIVER" OR EQUIVALENT THEORY.  MORE IMPORTANT,
HOWEVER, I BELIEVE THAT TODAY'S EXPANSION OF THE "WAIVER" DOCTRINE
IMPROPERLY LIMITS ONE OF THE FIFTH AMENDMENT'S GREAT SAFEGUARDS.  FN12 

I WOULD REVERSE THE JUDGMENT OF CONVICTION. 

FN1  "THIS PROVISION (AGAINST SELF-INCRIMINATION) MUST HAVE A BROAD
CONSTRUCTION IN FAVOR OF THE RIGHT WHICH IT WAS INTENDED TO SECURE." 
COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562. 

FN2  WHILE IT HAS BEEN HELD THAT FAILURE SPECIFICALLY TO INVOKE THE
PRIVILEGE PRIOR TO FINAL JUDGMENT CONSTITUTED A WAIVER, UNITED STATES
EX REL. VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273 U.S. 103, 113;
UNITED STATES V. MURDOCK, 284 U.S. 141, 148, SUCH CASES ARE NOT
CONTROLLING HERE.  BEFORE FINAL JUDGMENT WAS ENTERED AGAINST THIS
PETITIONER, SHE ASSERTED THE PRIVILEGE NOT TO INCRIMINATE HERSELF UNDER
FEDERAL LAW, AND WAS SENTENCED FOR STANDING ON THIS GROUND.  SEE
APPENDIX FOLLOWING THIS OPINION, P. 381. 

FN3  THE COURT'S RELIANCE ON BROWN V. WALKER, 161 U.S. 591, AS
INDICATING THAT THE PRIVILEGE CAN BE WAIVED UNINTENTIONALLY IS
MISPLACED.  FOR IN THE BROWN CASE, IT WAS SAID THAT "IF THE WITNESS
HIMSELF ELECTS TO WAIVE HIS PRIVILEGE,  ...  HE IS NOT PERMITTED TO
STOP, BUT MUST GO ON AND MAKE A FULL DISCLOSURE."  ID., AT 597. 

FN4  THE PRACTICAL DIFFICULTIES INHERENT IN THE RULE ANNOUNCED BY THE
COURT ARE MADE APPARENT BY A READING OF THE OPINIONS IN UNITED STATES
V. ST. PIERRE, 132 F.2D 837. 

FN5  SEE NOTE 11 AND ACCOMPANYING TEXT, INFRA. 

FN6  TODAY'S OPINION SEEKS TO DERIVE A LOOSER TEST FROM CERTAIN
NEGATIVE LANGUAGE IN THE SUBSEQUENT CASE OF MCCARTHY V. ARNDSTEIN, 262
U.S. 355, 359, WHERE IT WAS SAID THAT IF "THE PREVIOUS DISCLOSURE BY AN
ORDINARY WITNESS IS NOT AN ACTUAL ADMISSION OF GUILT OR INCRIMINATING
FACTS, HE IS NOT DEPRIVED OF THE PRIVILEGE OF STOPPING SHORT  ...  "
IN THAT VERY CASE, HOWEVER, THE COURT QUOTED WITH APPROVAL THE MINIMUM
RULE IT HAD PREVIOUSLY ANNOUNCED.  ID., AT 358.  MOREOVER, IN STATING
THE REASON WHY ARNDSTEIN HAD NOT WAIVED HIS PRIVILEGE, THE COURT SAID:
"AND SINCE WE FIND THAT NONE OF THE ANSWERS WHICH HAD BEEN VOLUNTARILY
GIVEN BY ARNDSTEIN, EITHER BY WAY OF DENIALS OR PARTIAL DISCLOSURES,
AMOUNTED TO AN ADMISSION OR SHOWING OF GUILT, WE ARE OF OPINION THAT HE
WAS ENTITLED TO DECLINE TO ANSWER FURTHER QUESTIONS WHEN SO TO DO MIGHT
TEND TO INCRIMINATE HIM."  ID., AT 359-360. 

IT IS ALSO SUGGESTED THAT THE MICHIGAN CASE OF FOSTER V. PEOPLE, 18
MICH. 266, WAS ADOPTED AS THE FEDERAL RULE BY THIS COURT IN MCCARTHY V.
ARNDSTEIN, SUPRA, AT 359.  ALTHOUGH THE FOSTER CASE WAS THERE CITED, NO
ACCEPTANCE WAS INTENDED OF THE LANGUAGE IN THE MICHIGAN DECISION WHICH
A MAJORITY QUOTES TODAY.  THAT THE COURT WOULD NOT HAVE ACCEPTED THIS
QUOTATION IS SHOWN BY THE FACT THAT IT PLACED RELIANCE ON AN ENGLISH
CASE, REGINA V. GARBETT, 2 C. & K. 474, 495, WHICH WAS SUMMARIZED AS
HOLDING THE FOLLOWING:  "(IT) MAKES NO DIFFERENCE IN THE RIGHT OF A
WITNESS TO PROTECTION FROM INCRIMINATING HIMSELF THAT HE HAS ALREADY
ANSWERED IN PART, HE BEING 'ENTITLED TO CLAIM THE PRIVILEGE AT ANY
STAGE OF THE INQUIRY.'"  MCCARTHY V. ARNDSTEIN, SUPRA, AT 359. 

FN7  I DO NOT UNDERSTAND THE COURT'S HOLDING TO RELY ON THE STATEMENT
IN THE OPINION THAT "PETITIONER HAD NO PRIVILEGE WITH RESPECT TO THE
BOOKS OF THE PARTY  ...  "  THIS STATEMENT OF COURSE IS NOT RELEVANT IN
THE PRESENT CASE WHERE THERE IS NO ISSUE OF COMPELLING PETITIONER TO
TURN OVER UNPRIVILEGED DOCUMENTS IN HER POSSESSION.  BUT IF THE COURT
DOES INTEND TO SUGGEST THAT A WITNESS IS NOT PRIVILEGED IN REFUSING TO
ANSWER INCRIMINATING QUESTIONS MERELY BECAUSE THOSE QUESTIONS RELATE TO
UNPRIVILEGED DOCUMENTS, THEN I MUST POINT OUT THAT THE DECISION IN THIS
CASE IS ENTIRELY INCONSISTENT WITH OUR RECENT UNANIMOUS DECISION IN
PATRICIA BLAU V. UNITED STATES, 340 U.S. 159, NOTE 1. 

FN8  PATRICIA BLAU V. UNITED STATES, SUPRA; IRVING BLAU V. UNITED
STATES, 340 U.S. 332. 

FN9  ALTHOUGH THE COURT OF APPEALS UPHELD THE CONVICTIONS OF MOST OF
THE WITNESSES CALLED BEFORE THE GRAND JURY, IT MADE THE FOLLOWING
COMMENT CONCERNING THE CONDUCT OF THE SPECIAL UNITED STATES ATTORNEY:
"(HIS) STOCK STATEMENT TO THE WITNESS THAT SHE WAS NOT UNDER
INVESTIGATION AND THAT THE GRAND JURY WAS NOT PROCEEDING AGAINST HER,
WAS NOT WARRANTED.  IT WAS NOT FOR HIM TO SAY WHAT THE SCOPE OF THE
GRAND JURY'S INVESTIGATION WAS; NEITHER WAS HIS STATEMENT A SUBSTITUTE
FOR HER CONSTITUTIONAL PROTECTION."  ROGERS V. UNITED STATES, 179 F.2D
559, 563.  OTHER "IRREGULARITIES" IN THE PROCEEDINGS BELOW WERE ALSO
POINTED OUT.  ID., AT 561.  CONDUCT OF THE SAME PROSECUTOR DURING A
SIMILAR GRAND JURY INVESTIGATION IN LOS ANGELES WAS CRITICIZED BY
JUDGES OF THE NINTH CIRCUIT IN ALEXANDER V. UNITED STATES, 181 F.2D
480.  THERE IT WAS SAID THAT THE GOVERNMENT ATTORNEY "PURSUED THE SAME
TACTICS TENDING TO PUT THE WITNESS OFF HIS GUARD  ...  "  ID., AT 482. 
FN10  THE TRANSCRIPT OF THIS PORTION OF THE PROCEEDINGS BELOW IS SET
OUT IN THE APPENDIX, POST, P. 381. 

FN11  THE DISTRICT JUDGE'S SOLE REFERENCE TO "WAIVER" WAS NOT MADE IN
THE CASE OF PETITIONER.  IN ADDRESSING ONE OF THE OTHER WITNESSES,
HOWEVER, THE JUDGE SAID, "OF COURSE, ANYTHING YOU TESTIFY TO, UNLESS
YOU SIGNED A WAIVER, CAN'T BE USED AGAINST YOU IN ANY TRIAL HEREAFTER. 
THAT'S THE LAW, ISN'T IT?"  THE CONVICTION OF THIS WITNESS, NANCY
WERTHEIMER, WAS THE ONLY ONE REVERSED BY THE COURT OF APPEALS.  ROGERS
V. UNITED STATES, 179 F.2D 559.    FN12  FOR A DESCRIPTION OF THE
ABUSES WHICH LED TO THE INCORPORATION OF THE PRIVILEGE AGAINST SELF
INCRIMINATION IN THE BILL OF RIGHTS, SEE PITTMAN, THE COLONIAL AND
CONSTITUTIONAL HISTORY OF THE PRIVILEGE AGAINST SELF-INCRIMINATION IN
AMERICA, 21 VA. L. REV. 763. 

              APPENDIX TO OPINION OF MR. JUSTICE BLACK. 

THE FOLLOWING IS THE FULL TRANSCRIPT OF PROCEEDINGS AT THE TIME THE
JUDGMENT NOW UNDER REVIEW WAS ENTERED: 

"THE COURT:...  WHAT IS THE NEXT CASE?  CAN WE DISPOSE OF THESE
LADIES NOW? 

"MR. GOLDSCHEIN (SPECIAL UNITED STATES ATTORNEY):  MRS. JANE ROGERS. 

"THE COURT:  IS SHE HERE? 

"MR. GOLDSCHEIN:  SHE IS HERE, YES, SIR.  NOW, MAY IT PLEASE YOUR
HONOR - 

"THE COURT:  STEP OVER HERE, MADAM.  WHAT IS THE STATUS OF HER CASE? 

"MR. GOLDSCHIEN:  MRS. ROGERS REFUSES TO ANSWER THE QUESTIONS
PROPOUNDED TO HER IN THE GRAND JURY ROOM.  SHE WAS BROUGHT BACK ON
YESTERDAY, BUT SAYS THAT SHE WILL ANSWER ONE QUESTION BUT WILL NOT
ANSWER ANY OTHERS, AND WAS ADVISED THAT IT WOULD BE NECESSARY FOR HER
TO ANSWER ALL QUESTIONS PROPOUNDED EXCEPT THOSE WHICH WOULD INCRIMINATE
HER FOR THE VIOLATION OF A FEDERAL OFFENSE, AND SHE SAYS SHE WON'T
ANSWER ANY. 

"THE COURT:  IS THAT YOUR POSITION, MADAM? 

"MR. MENIN (COUNSEL FOR PETITIONER):  I THINK THERE HAS BEEN A
MISUNDERSTANDING. 

"THE COURT:  JUST A MINUTE.  WILL YOU PLEASE BE SEATED, MR. MENIN? 
PLEASE BE SEATED. 

"MR. MENIN:  WELL, I REPRESENT THIS LADY. 

"THE COURT:  JUST A MOMENT.  PLEASE BE SEATED. 

"MR. MENIN:  VERY WELL. 

"THE COURT:  I'LL HEAR YOU IN DUE COURSE(.)  MADAM, DO YOU STILL
PERSIST IN NOT ANSWERING THESE QUESTIONS? 

"MRS. ROGERS:  WELL, ON THE BASIS OF MR. MENIN'S STATEMENTS THIS
MORNING - 

"THE COURT:  WILL YOU PLEASE ANSWER THE QUESTION YES OR NO? 

"MRS. ROGERS:  WELL, I THINK THAT'S RATHER UNDEMOCRATIC(.)  I'M A
VERY HONEST PERSON.  WOULD YOU MIND LETTING ME CONSIDER - 

"THE COURT:  MAKE ANY STATEMENT YOU WISH. 

"MRS. ROGERS:  WELL, AS I SAID BEFORE, I'M A VERY HONEST PERSON AND
I'M NOT ACQUAINTED WITH THE TRICKS OF LEGAL PROCEDURE, BUT I UNDERSTAND
FROM THE READING OF THESE CASES THIS MORNING THAT I AM - AND I DO HAVE
A RIGHT TO REFUSE TO ANSWER THESE QUESTIONS, ON THE BASIS THAT THEY
WOULD TEND TO INCRIMINATE ME, AND YOU READ IT YOURSELF, THAT I HAVE A
RIGHT TO DECIDE THAT. 

"THE COURT:  YOU HAVE NOT THE RIGHT TO SAY. 

"MRS. ROGERS:  ACCORDING TO WHAT YOU READ, I DO.  I STAND ON THAT. 

"THE COURT:  ALL RIGHT.  IF YOU WILL MAKE NO CHANGES, IT IS THE
JUDGMENT AND SENTENCE OF THE COURT YOU BE CONFINED TO THE CUSTODY OF
THE ATTORNEY GENERAL FOR FOUR MONTHS.  CALL THE NEXT CASE."  TRANSCRIPT
OF RECORD, PP. 76-78(SEPTEMBER 23, 1948). 
..END :























BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S. 383 


ARGUED JANUARY 9-10, 1951.  - DECIDED FEBRUARY 26, 1951.  - 257 WIS. 43,
42 N.W.2D 471 - 258 WIS. 1, 44 N.W.2D 547, REVERSED. 


THE WISCONSIN PUBLIC UTILITY ANTI-STRIKE LAW, WHICH MAKES IT A
MISDEMEANOR FOR ANY GROUP OF PUBLIC UTILITY EMPLOYEES TO ENGAGE IN A
STRIKE WHICH WOULD CAUSE AN INTERRUPTION OF AN ESSENTIAL PUBLIC-UTILITY
SERVICE, AS APPLIED IN THESE CASES, CONFLICTS WITH THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947,
AND IS INVALID UNDER THE SUPREMACY CLAUSE OF THE FEDERAL CONSTITUTION. 
PP. 385-399. 

1.  BY THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR
MANAGEMENT RELATIONS ACT, 1947, SAFEGUARDING THE RIGHT OF EMPLOYEES TO
STRIKE, CONGRESS OCCUPIED THIS FIELD AND CLOSED IT TO STATE REGULATION;
AND ANY CONCURRENT STATE REGULATION OF PEACEFUL STRIKES FOR HIGHER
WAGES IS INVALID.  AUTOMOBILE WORKERS V. O'BRIEN, 339 U.S. 454.  PP.
389-390. 

2.  THE FEDERAL ACT APPLIES TO A PRIVATELY-OWNED PUBLIC UTILITY WHOSE
BUSINESS AND ACTIVITIES ARE CARRIED ON WHOLLY WITHIN A SINGLE STATE. 
CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197.  PP. 391-393. 

3.  THE RESULT FINDS FURTHER SUPPORT IN THE 1947 AMENDMENTS, WHEREBY
CONGRESS PROVIDED SPECIAL PROCEDURES TO DEAL WITH STRIKES WHICH MIGHT
CREATE NATIONAL EMERGENCIES.  PP. 393-396. 

4.  THE QUESTIONS OF POLICY RAISED HERE ARE FOR LEGISLATIVE
DETERMINATION AND HAVE BEEN RESOLVED BY CONGRESS ADVERSELY TO
RESPONDENTS.  THIS COURT, IN THE EXERCISE OF ITS JUDICIAL FUNCTION,
MUST TAKE THE COMPREHENSIVE AND VALID FEDERAL LEGISLATION AS ENACTED
AND DECLARE INVALID STATE REGULATION WHICH IMPINGES ON THAT
LEGISLATION.  PP. 397-398. 

5.  AS APPLIED IN THIS CASE, THE WISCONSIN ACT IS IN DIRECT CONFLICT
WITH THE FEDERAL ACT AND THEREFORE IS INVALID UNDER THE SUPREMACY
CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 398-399. 

AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH
EMPLOYEES OF AMERICA, DIVISION 998, ET AL. V. WISCONSIN EMPLOYMENT
RELATIONS BOARD. 

NO. 329.  CERTIORARI TO THE SUPREME COURT OF WISCONSIN* . 

*TOGETHER WITH NO. 438, UNITED GAS, COKE & CHEMICAL WORKERS OF
AMERICA, C.I.O., ET AL. V. WISCONSIN EMPLOYMENT RELATIONS BOARD, ALSO
ON CERTIORARI TO THE SAME COURT. 

THE CASES ARE STATED IN THE SECOND AND THIRD PARAGRAPHS OF THE
OPINION.  THE JUDGMENTS BELOW ARE REVERSED, P. 399. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN THESE CASES, THE CONSTITUTIONALITY OF LABOR LEGISLATION OF THE
STATE OF WISCONSIN KNOWN AS THE PUBLIC UTILITY ANTI-STRIKE LAW,  FN1
HAS BEEN DRAWN IN QUESTION. 

PETITIONERS IN NO. 329 ARE THE UNION AND ITS OFFICERS WHO REPRESENT
THE EMPLOYEES OF THE MILWAUKEE ELECTRIC RAILWAY AND TRANSPORT COMPANY
OF MILWAUKEE, WISCONSIN, FOR COLLECTIVE-BARGAINING PURPOSES.  FN2 FOR
MANY YEARS, THE TRANSIT WORKERS ENTERED INTO COLLECTIVE-BARGAINING
AGREEMENTS WITH THE TRANSIT COMPANY WITHOUT RESORTING TO STRIKE.  IN
1948, HOWEVER, THE COLLECTIVE AGREEMENT WAS TERMINATED WHEN THE PARTIES
WERE UNABLE TO AGREE ON WAGES, HOURS AND WORKING CONDITIONS AND THE
TRANSIT WORKERS' UNION CALLED A STRIKE TO ENFORCE UNION DEMANDS.  THE
RESPONDENT WISCONSIN EMPLOYMENT RELATIONS BOARD SECURED IMMEDIATELY AN
EX PARTE ORDER FROM A STATE CIRCUIT COURT RESTRAINING THE STRIKE AND,
IN COMPLIANCE WITH THAT ORDER, THE UNION POSTPONED ITS STRIKE. 
THEREAFTER, THE SAME CIRCUIT COURT ENTERED A JUDGMENT UNDER WHICH
PETITIONERS ARE "PERPETUALLY RESTRAINED AND ENJOINED FROM CALLING A
STRIKE  ...  WHICH WOULD CAUSE AN INTERRUPTION OF THE PASSENGER SERVICE
OF THE (TRANSIT COMPANY)."  THE WISCONSIN SUPREME COURT AFFIRMED THE
JUDGMENT, 257 WIS. 43, 42 N.W.2D 471(1950), AND WE GRANTED CERTIORARI,
340 U.S. 874(1950), TO REVIEW THE IMPORTANT QUESTIONS DECIDED BELOW. 

PETITIONERS IN NO. 438 ARE THE UNION AND ITS OFFICERS WHO REPRESENT
EMPLOYEES OF THE MILWAUKEE GAS LIGHT COMPANY AND ITS SUBSIDIARY, THE
MILWAUKEE SOLVAY COKE COMPANY, BOTH OF MILWAUKEE, WISCONSIN, PURSUANT
TO A CERTIFICATION OF THE NATIONAL LABOR RELATIONS BOARD.  FN3  IN
1949, THE COLLECTIVE AGREEMENT BETWEEN PETITIONERS AND THE GAS COMPANY
WAS TERMINATED AND, UPON FAILURE OF FURTHER BARGAINING AND CONCILIATION
TO RESOLVE THE DISPUTE, A STRIKE WAS CALLED AND THE GAS WORKERS LEFT
THEIR JOBS.  RESPONDENT WISCONSIN EMPLOYMENT RELATIONS BOARD OBTAINED
FORTHWITH AN EX PARTE RESTRAINING ORDER FROM A STATE CIRCUIT COURT
REQUIRING THAT PETITIONERS "ABSOLUTELY DESIST AND REFRAIN FROM CALLING
A STRIKE (OR) GOING OUT ON STRIKE  ...  WHICH WOULD CAUSE AN
INTERRUPTION OF THE SERVICE OF THE (GAS COMPANY)" AND ORDERING
PETITIONERS TO "TAKE IMMEDIATE STEPS TO NOTIFY ALL EMPLOYES CALLED OUT
ON STRIKE TO RESUME SERVICE FORTHWITH."  ALTHOUGH THE STRIKE WAS
SETTLED SOON THEREAFTER, THE CIRCUIT COURT FOUND THAT PETITIONERS HAD
NOT OBEYED THE RESTRAINING ORDER AND ENTERED A JUDGMENT OF CONTEMPT,
IMPOSING FINES OF $250 UPON EACH PETITIONER.  THE WISCONSIN SUPREME
COURT AFFIRMED THAT JUDGMENT, 258 WIS. 1, 44 N.W.2D 547(1950), AND WE
GRANTED CERTIORARI, 340 U.S. 903(1950), SINCE THIS CASE RAISES THE SAME
SUBSTANTIAL QUESTIONS AS THOSE BEFORE THE COURT IN NO. 329. 

THE INJUNCTIONS WERE ISSUED IN EACH CASE UPON THE COMPLAINT OF THE
WISCONSIN EMPLOYMENT RELATIONS BOARD, CHARGED BY STATUTE WITH THE
ENFORCEMENT OF THE PUBLIC UTILITY ANTI-STRIKE LAW.  THAT ACT VESTS IN
THE STATE CIRCUIT COURTS JURISDICTION TO ENJOIN VIOLATIONS OF THE ACT,
WIS. STAT., 1949, SEC. 111.63, THE SUBSTANTIVE PROVISION INVOLVED IN
THESE CASES PROVIDING AS FOLLOWS: 

"IT SHALL BE UNLAWFUL FOR ANY GROUP OF EMPLOYES OF A PUBLIC UTILITY
EMPLOYER ACTING IN CONCERT TO CALL A STRIKE OR TO GO OUT ON STRIKE, OR
TO CAUSE ANY WORK STOPPAGE OR SLOWDOWN WHICH WOULD CAUSE AN
INTERRUPTION OF AN ESSENTIAL SERVICE; IT ALSO SHALL BE UNLAWFUL FOR ANY
PUBLIC UTILITY EMPLOYER TO LOCK OUT HIS EMPLOYES WHEN SUCH ACTION WOULD
CAUSE AN INTERRUPTION OF ESSENTIAL SERVICE; AND IT SHALL BE UNLAWFUL
FOR ANY PERSON OR PERSONS TO INSTIGATE, TO INDUCE, TO CONSPIRE WITH, OR
TO ENCOURAGE ANY OTHER PERSON OR PERSONS TO ENGAGE IN ANY STRIKE OR
LOCKOUT OR SLOWDOWN OR WORK STOPPAGE WHICH WOULD CAUSE AN INTERRUPTION
OF AN ESSENTIAL SERVICE.  ANY VIOLATION OF THIS SECTION BY ANY MEMBER
OF A GROUP OF EMPLOYES ACTING IN CONCERT OR BY ANY EMPLOYER OR BY ANY
OFFICER OF AN EMPLOYER ACTING FOR SUCH EMPLOYER, OR BY ANY OTHER
INDIVIDUAL, SHALL CONSTITUTE A MISDEMEANOR."  WIS. STAT., 1949, SEC.
111.62.  FN4  THIS PROVISION IS PART OF A STATUTORY PATTERN DESIGNED TO
BECOME EFFECTIVE WHENEVER COLLECTIVE BARGAINING RESULTS IN AN "IMPASSE
AND STALEMATE" LIKELY TO CAUSE INTERRUPTION OF THE SUPPLY OF AN
"ESSENTIAL PUBLIC UTILITY SERVICE," WIS. STAT., 1949, SEC. 111.50, THAT
SERVICE INCLUDING WATER, HEAT, GAS, ELECTRIC POWER, PUBLIC PASSENGER
TRANSPORTATION AND COMMUNICATIONS.  ID., SEC. 111.51.  WHENEVER SUCH AN
"IMPASSE" OCCURS, THE WISCONSIN EMPLOYMENT RELATIONS BOARD IS EMPOWERED
TO APPOINT A CONCILIATOR TO MEET WITH THE PARTIES IN AN EFFORT TO
SETTLE THE DISPUTE.  ID., SEC. 111.54.  IN THE EVENT OF A FAILURE OF
CONCILIATION, THE BOARD IS DIRECTED TO SELECT ARBITRATORS WHO SHALL
"HEAR AND DETERMINE" THE DISPUTE.  ID., SEC. 111.55.  THE ACT
ESTABLISHES STANDARDS TO GOVERN THE DECISION OF THE ARBITRATORS, ID.,
SECS. 111.57-111.58, AND PROVIDES THAT THE ORDER OF THE ARBITRATORS
SHALL BE FINAL AND BINDING UPON THE PARTIES, ID., SEC. 111.59, SUBJECT
TO JUDICIAL REVIEW, ID., SEC. 111.60.  IN SUMMARY, THE ACT SUBSTITUTES
ARBITRATION UPON ORDER OF THE BOARD FOR COLLECTIVE BARGAINING WHENEVER
AN IMPASSE IS REACHED IN THE BARGAINING PROCESS.  AND, TO INSURE
CONFORMITY WITH THE STATUTORY SCHEME, WISCONSIN DENIES TO UTILITY
EMPLOYEES THE RIGHT TO STRIKE. 

IN UPHOLDING THE CONSTITUTIONALITY OF THE PUBLIC UTILITY ANTI-STRIKE
ACT, THE WISCONSIN SUPREME COURT STRESSED THE IMPORTANCE OF UTILITY
SERVICE TO THE PUBLIC WELFARE AND THE PLENARY POWER WHICH A STATE IS
ACCUSTOMED TO EXERCISE OVER SUCH ENTERPRISES.  PETITIONERS' CLAIM THAT
THE WISCONSIN LAW CONFLICTS WITH FEDERAL LEGISLATION ENACTED UNDER THE
COMMERCE CLAUSE OF THE CONSTITUTION (ART. I, SEC. 8) WAS OVERRULED, AS
WERE PETITIONERS' CONTENTIONS THAT THE WISCONSIN ACT VIOLATES THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND THE THIRTEENTH
AMENDMENT.  RESPONDENTS CONTROVERT EACH OF THESE CONTENTIONS AND, APART
FROM THE QUESTIONS OF RES JUDICATA DISCUSSED IN NO. 302, DECIDED THIS
DAY, POST, P. 411, RAISE NO OTHER GROUNDS IN SUPPORT OF THE JUDGMENTS
BELOW.  WE DEAL ONLY WITH THE QUESTION OF CONFLICTING FEDERAL
LEGISLATION AS WE HAVE FOUND THAT ISSUE DISPOSITIVE OF BOTH CASES. 

FIRST.  WE HAVE RECENTLY EXAMINED THE EXTENT TO WHICH CONGRESS HAS
REGULATED PEACEFUL STRIKES FOR HIGHER WAGES IN INDUSTRIES AFFECTING
COMMERCE.  AUTOMOBILE WORKERS V. O'BRIEN, 339 U.S. 454(1950).  WE NOTED
THAT CONGRESS, IN SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT OF 1935,
FN5  AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT OF 1947,  FN6
EXPRESSLY SAFEGUARDED FOR EMPLOYEES IN SUCH INDUSTRIES THE "RIGHT  ...
TO ENGAGE IN  ...  CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION,"  FN7  "E.G., TO
STRIKE."  FN8 WE ALSO LISTED THE QUALIFICATIONS AND REGULATIONS WHICH
CONGRESS ITSELF HAS IMPOSED UPON ITS GUARANTEE OF THE RIGHT TO STRIKE,
INCLUDING REQUIREMENTS THAT NOTICE BE GIVEN PRIOR TO ANY STRIKE UPON
TERMINATION OF A CONTRACT,  FN9  PROHIBITIONS ON STRIKES FOR CERTAIN
OBJECTIVES DECLARED UNLAWFUL BY CONGRESS N10, AND SPECIAL PROCEDURES
FOR CERTAIN STRIKES WHICH MIGHT CREATE NATIONAL EMERGENCIES.  FN11
UPON REVIEW OF THESE FEDERAL LEGISLATIVE PROVISIONS, WE HELD, 339 U.S.
AT 457: 

"NONE OF THESE SECTIONS CAN BE READ AS PERMITTING CONCURRENT STATE
REGULATION OF PEACEFUL STRIKES FOR HIGHER WAGES.  CONGRESS OCCUPIED
THIS FIELD AND CLOSED IT TO STATE REGULATION.  PLANKINTON PACKING CO.
V. WISCONSIN BOARD, 338 U.S. 953(1950); LA CROSSE TELEPHONE CORP. V.
WISCONSIN BOARD, 336 U.S. 18(1949); BETHLEHEM STEEL CO. V. NEW YORK
LABOR BOARD, 330 U.S. 767(1947); HILL V. FLORIDA, 325 U.S. 538(1945)." 
FN12 

SECOND.  THE WISCONSIN COURT SOUGHT TO DISTINGUISH AUTOMOBILE WORKERS
V. O'BRIEN, SUPRA, ON THE GROUND THAT THE INDUSTRY TO WHICH MICHIGAN
APPLIED ITS NOTICE AND STRIKE-VOTE PROVISIONS WAS A NATIONAL
MANUFACTURING ORGANIZATION RATHER THAN A LOCAL PUBLIC UTILITY. 
CONGRESS DREW NO SUCH DISTINCTION BUT, INSTEAD, SAW FIT TO REGULATE
LABOR RELATIONS TO THE FULL EXTENT OF ITS CONSTITUTIONAL POWER UNDER
THE COMMERCE CLAUSE, LABOR BOARD V. FAINBLATT, 306 U.S. 601,
607(1939).  EVER SINCE THE QUESTION WAS FULLY ARGUED AND DECIDED IN
CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197(1938), IT HAS BEEN
CLEAR THAT FEDERAL LABOR LEGISLATION, ENCOMPASSING AS IT DOES ALL
INDUSTRIES "AFFECTING COMMERCE," APPLIES TO A PRIVATELY OWNED PUBLIC
UTILITY WHOSE BUSINESS AND ACTIVITIES ARE CARRIED ON WHOLLY WITHIN A
SINGLE STATE.  THE COURTS OF APPEAL HAVE UNIFORMLY HELD ENTERPRISES
SIMILAR TO AND NO MORE IMPORTANT TO INTERSTATE COMMERCE THAN THE
MILWAUKEE GAS AND TRANSIT COMPANIES BEFORE US IN THESE CASES SUBJECT TO
THE PROVISIONS OF THE FEDERAL LABOR LAW.  FN13  NO DISTINCTION BETWEEN
PUBLIC UTILITIES AND NATIONAL MANUFACTURING ORGANIZATIONS HAS BEEN
DRAWN IN THE ADMINISTRATION OF THE FEDERAL ACT,  FN14  AND, WHEN
SEPARATE TREATMENT FOR PUBLIC UTILITIES WAS URGED UPON CONGRESS IN
1947, THE SUGGESTED DIFFERENTIATION WAS EXPRESSLY REJECTED.  FN15
CREATION OF A SPECIAL CLASSIFICATION FOR PUBLIC UTILITIES IS FOR
CONGRESS, NOT FOR THIS COURT. 

THIRD.  AS WE HAVE NOTED, IN 1947 CONGRESS ENACTED SPECIAL PROCEDURES
TO DEAL WITH STRIKES WHICH MIGHT CREATE NATIONAL EMERGENCIES.  FN16
RESPONDENTS RELY UPON THAT ACTION AS SHOWING A CONGRESSIONAL INTENT TO
CARVE OUT A SEPARATE FIELD OF "EMERGENCY" LABOR DISPUTES AND, POINTING
TO THE FACT THAT CONGRESS ACTED ONLY IN RESPECT TO "NATIONAL
EMERGENCIES," RESPONDENTS ASK US TO HOLD THAT CONGRESS INTENDED, BY
SILENCE, TO LEAVE THE STATES FREE TO REGULATE "LOCAL EMERGENCY"
DISPUTES.  HOWEVER, THE WISCONSIN ACT BEFORE US IS NOT "EMERGENCY"
LEGISLATION BUT A COMPREHENSIVE CODE FOR THE SETTLEMENT OF LABOR
DISPUTES BETWEEN PUBLIC-UTILITY EMPLOYERS AND EMPLOYEES N17.  FAR FROM
BEING LIMITED TO "LOCAL EMERGENCIES," THE ACT HAS BEEN APPLIED TO
DISPUTES NATIONAL IN SCOPE, FN18  AND APPLICATION OF THE ACT DOES NOT
REQUIRE THE EXISTENCE OF AN "EMERGENCY."  FN19  IN ANY EVENT,
CONGRESSIONAL IMPOSITION OF CERTAIN RESTRICTIONS ON PETITIONERS' RIGHT
TO STRIKE, FAR FROM SUPPORTING THE WISCONSIN ACT, SHOWS THAT CONGRESS
HAS CLOSED TO STATE REGULATION THE FIELD OF PEACEFUL STRIKES IN
INDUSTRIES AFFECTING COMMERCE.  AUTOMOBILE WORKERS V. O'BRIEN, SUPRA,
AT 457.  AND WHERE, AS HERE, THE STATE SEEKS TO DENY ENTIRELY A
FEDERALLY GUARANTEED RIGHT WHICH CONGRESS ITSELF RESTRICTED ONLY TO A
LIMITED EXTENT IN CASE OF NATIONAL EMERGENCIES, HOWEVER SERIOUS, IT IS
MANIFEST THAT THE STATE LEGISLATION IS IN CONFLICT WITH FEDERAL LAW. 

LIKE THE MAJORITY STRIKE-VOTE PROVISION CONSIDERED IN O'BRIEN, A
PROPOSAL THAT THE RIGHT TO STRIKE BE DENIED, TOGETHER WITH THE
SUBSTITUTION OF COMPULSORY ARBITRATION IN CASES OF "PUBLIC
EMERGENCIES," LOCAL OR NATIONAL, WAS BEFORE CONGRESS IN 1947.  FN20
THIS PROPOSAL, CLOSELY RESEMBLING THE PATTERN OF THE WISCONSIN ACT, WAS
REJECTED BY CONGRESS AS BEING INCONSISTENT WITH ITS POLICY IN RESPECT
TO ENTERPRISES COVERED BY THE FEDERAL ACT, AND NOT BECAUSE OF ANY
DESIRE TO LEAVE THE STATES FREE TO ADOPT IT. FN21  MICHIGAN, IN
O'BRIEN, SOUGHT TO IMPOSE CONDITIONS ON THE RIGHT TO STRIKE AND NOW
WISCONSIN SEEKS TO ABROGATE THAT RIGHT ALTOGETHER INSOFAR AS
PETITIONERS ARE CONCERNED.  FN22  SUCH STATE LEGISLATION MUST YIELD AS
CONFLICTING WITH THE EXERCISE OF FEDERALLY PROTECTED LABOR RIGHTS. 

FOURTH.  MUCH OF THE ARGUMENT GENERATED BY THESE CASES HAS BEEN
CONSIDERABLY BROADER THAN THE LEGAL QUESTIONS PRESENTED. 

THE UTILITY COMPANIES, THE STATE OF WISCONSIN AND OTHER STATES AS
AMICI STRESS THE IMPORTANCE OF GAS AND TRANSIT SERVICE TO THE LOCAL
COMMUNITY AND URGE THAT PREDOMINANTLY LOCAL PROBLEMS ARE BEST LEFT TO
LOCAL GOVERNMENTAL AUTHORITY FOR SOLUTION.  ON THE OTHER HAND,
PETITIONERS AND THE NATIONAL LABOR RELATIONS BOARD, AS AMICUS, ARGUE
THAT PROHIBITION OF STRIKES WITH RELIANCE UPON COMPULSORY ARBITRATION
FOR ULTIMATE SOLUTION OF LABOR DISPUTES DESTROYS THE FREE COLLECTIVE
BARGAINING DECLARED BY CONGRESS TO BE THE BULWARK OF THE NATIONAL LABOR
POLICY.  THIS, IT IS SAID, LEADS TO MORE LABOR UNREST AND DISRUPTION OF
SERVICE THAN IS NOW EXPERIENCED UNDER A SYSTEM OF FREE COLLECTIVE
BARGAINING ACCOMPANIED BY THE RIGHT TO STRIKE.  THE VERY NATURE OF THE
DEBATABLE POLICY QUESTIONS RAISED BY THESE CONTENTIONS CONVINCES US
THAT THEY CANNOT PROPERLY BE RESOLVED BY THE COURT.  IN OUR VIEW, THESE
QUESTIONS ARE FOR LEGISLATIVE DETERMINATION AND HAVE BEEN RESOLVED BY
CONGRESS ADVERSELY TO RESPONDENTS. 

WHEN IT AMENDED THE FEDERAL ACT IN 1947, CONGRESS WAS NOT ONLY
COGNIZANT OF THE POLICY QUESTIONS THAT HAVE BEEN ARGUED BEFORE US IN
THESE CASES, BUT IT WAS ALSO WELL AWARE OF THE PROBLEMS IN BALANCING
STATE-FEDERAL RELATIONSHIPS WHICH ITS 1935 LEGISLATION HAD RAISED.  THE
LEGISLATIVE HISTORY OF THE 1947 ACT REFERS TO THE DECISION OF THIS
COURT IN BETHLEHEM STEEL CO. V. NEW YORK LABOR BOARD, 330 U.S.
767(1947), AND, IN ITS HANDLING OF THE PROBLEMS PRESENTED BY THAT CASE,
CONGRESS DEMONSTRATED THAT IT KNEW HOW TO CEDE JURISDICTION TO THE
STATES.  FN23  CONGRESS KNEW FULL WELL THAT ITS LABOR LEGISLATION
"PREEMPTS THE FIELD THAT THE ACT COVERS INSOFAR AS COMMERCE WITHIN THE
MEANING OF THE ACT IS CONCERNED"  FN24  AND DEMONSTRATED ITS ABILITY TO
SPELL OUT WITH PARTICULARITY THOSE AREAS IN WHICH IT DESIRED STATE
REGULATION TO BE OPERATIVE.  FN25  THIS COURT, IN THE EXERCISE OF ITS
JUDICIAL FUNCTION, MUST TAKE THE COMPREHENSIVE AND VALID FEDERAL
LEGISLATION AS ENACTED AND DECLARE INVALID STATE REGULATION WHICH
IMPINGES ON THAT LEGISLATION. 

FIFTH.  IT WOULD BE SUFFICIENT TO STATE THAT THE WISCONSIN ACT, IN
FORBIDDING PEACEFUL STRIKES FOR HIGHER WAGES IN INDUSTRIES COVERED BY
THE FEDERAL ACT, HAS FORBIDDEN THE EXERCISE OF RIGHTS PROTECTED BY SEC.
7 OF THE FEDERAL ACT.  IN ADDITION, IT IS NOT DIFFICULT TO VISUALIZE
SITUATIONS IN WHICH APPLICATION OF THE WISCONSIN ACT WOULD WORK AT
CROSS-PURPOSES WITH OTHER POLICIES OF THE NATIONAL ACT.  BUT WE CONTENT
OURSELVES WITH CITATION OF EXAMPLES OF DIRECT CONFLICT FOUND IN THE
RECORDS BEFORE US.  IN THE CASE OF THE TRANSIT WORKERS, THE UNION
AGREED TO CONTINUE COLLECTIVE BARGAINING AFTER THE STRIKE BECAME
IMMINENT, WHEREAS THE COMPANY INSISTED UPON INVOCATION OF THE
COMPULSORY ARBITRATION FEATURES OF THE WISCONSIN ACT.  THAT ACT
REQUIRES THAT COLLECTIVE BARGAINING CONTINUE UNTIL AN "IMPASSE" IS
REACHED, WIS. STAT., 1949, SEC. 111.52, WHEREAS THE FEDERAL ACT
REQUIRES THAT BOTH EMPLOYER AND EMPLOYEES CONTINUE TO BARGAIN
COLLECTIVELY,  FN26 EVEN THOUGH A STRIKE MAY ACTUALLY BE IN PROGRESS. 
LABOR BOARD V. MACKAY RADIO & TELEGRAPH CO., 304 U.S. 333, 345(1938). 
FURTHER, THE TRANSIT COMPANY WAS ABLE TO AVOID ENTIRELY ANY
DETERMINATION OF CERTAIN UNION DEMANDS WHEN THE ARBITRATORS, IN
ACCORDANCE WITH WIS. STAT., 1949, SEC. 111.58, RULED THAT THE MATTER OF
ASSIGNING OF WORKERS TO CERTAIN SHIFTS "INFRINGE UPON THE RIGHT OF THE
MEPLOYER TO MANAGE HIS BUSINESS."  YET SIMILAR PROBLEMS OF WORK
SCHEDULING AND SHIFT ASSIGNMENT HAVE BEEN HELD TO BE APPROPRIATE
SUBJECTS FOR COLLECTIVE BARGAINING UNDER THE FEDERAL ACT AS
ADMINISTERED BY THE NATIONAL LABOR RELATIONS BOARD.  SEE WOODSIDE
COTTON MILLS CO., 21 N.L.R.B. 42, 54-55(1940); AMERICAN NATIONAL INS.
CO., 89 N.L.R.B. 185(1950), AND CASES CITED THEREIN. 

THE NATIONAL LABOR RELATIONS ACT OF 1935 AND THE LABOR MANAGEMENT
RELATIONS ACT OF 1947, PASSED BY CONGRESS PURSUANT TO ITS POWERS UNDER
THE COMMERCE CLAUSE, ARE THE SUPREME LAW OF THE LAND UNDER ART. VI OF
THE CONSTITUTION.  HAVING FOUND THAT THE WISCONSIN PUBLIC UTILITY ANTI
STRIKE LAW CONFLICTS WITH THAT FEDERAL LEGISLATION, THE JUDGMENTS
ENFORCING THE WISCONSIN ACT CANNOT STAND.  REVERSED. 

FN1  WIS. STAT., 1949, SECS. 111.50 ET SEQ. 

FN2  THE NATIONAL LABOR RELATIONS BOARD HAS EXERCISED JURISDICTION
OVER THE TRANSIT COMPANY AND ITS EMPLOYEES IN CONDUCTING A SO-CALLED
UNION SHOP ELECTION PURSUANT TO SEC. 9(E)(1) OF THE LABOR MANAGEMENT
RELATIONS ACT OF 1947, 29 U.S.C. (SUPP. III) SEC. 159(E)(1).  THE
NATIONAL LABOR RELATIONS BOARD IS PRESENTLY INVESTIGATING A CHARGE
FILED BY THE TRANSIT WORKERS' UNION IN RESPECT TO AN ALLEGED UNFAIR
LABOR PRACTICE SAID TO HAVE BEEN COMMITTED IN RESPECT TO THE
CONTROVERSY OUT OF WHICH THIS CASE AROSE. 

FN3  MILWAUKEE GAS LIGHT CO., 50 N.L.R.B. 809, AS AMENDED, 52
N.L.R.B. 1213(1943).  THE N.L.R.B. HAS ALSO CONDUCTED A UNION SHOP
ELECTION UNDER SEC. 9(E)(1) OF THE FEDERAL ACT, SUPRA, NOTE 2, IN
RESPECT TO THE SUPERVISORY EMPLOYEES OF THE GAS COMPANY.  AND A UNION
COMPLAINT THAT THE GAS COMPANY COMMITTED AN UNFAIR LABOR PRACTICE IN
RESPECT TO THE DISPUTE OUT OF WHICH THIS PROCEEDING AROSE HAS BEEN
FILED WITH THE N.L.R.B. 

FN4 UNDER WIS. STAT., 1949, SEC. 111.64, THE FOLLOWING IS APPLICABLE
TO THE ABOVE PROVISION: 

"NOTHING IN THIS SUBCHAPTER SHALL BE CONSTRUED TO REQUIRE ANY
INDIVIDUAL EMPLOYE TO RENDER LABOR OR SERVICE WITHOUT HIS CONSENT, OR
TO MAKE ILLEGAL THE QUITTING OF HIS LABOR OR SERVICE OR THE WITHDRAWAL
FROM HIS PLACE OF EMPLOYMENT UNLESS DONE IN CONCERT OR AGREEMENT WITH
OTHERS.  NO COURT SHALL HAVE POWER TO ISSUE ANY PROCESS TO COMPEL AN
INDIVIDUAL EMPLOYE TO RENDER LABOR OR SERVICE OR TO REMAIN AT HIS PLACE
OF EMPLOYMENT WITHOUT HIS CONSENT.  IT IS THE INTENT OF THIS SUBCHAPTER
ONLY TO FORBID EMPLOYES OF A PUBLIC UTILITY EMPLOYER TO ENGAGE IN A
STRIKE OR TO ENGAGE IN A WORK SLOWDOWN OR STOPPAGE IN CONCERT, AND TO
FORBID A PUBLIC UTILITY EMPLOYER TO LOCK OUT HIS EMPLOYES, WHERE SUCH
ACTS WOULD CAUSE AN INTERRUPTION OF ESSENTIAL SERVICE." 

WE HAVE BEFORE US, THEN, A STATUTE AIMED ONLY AT "CONCERTED"
ACTIVITIES OF PUBLIC UTILITY EMPLOYEES. 

FN5  49 STAT. 449, 29 U.S.C. SEC. 151 ET SEQ. 

FN6  61 STAT. 136, 29 U.S.C. (SUPP. III) SEC. 141 ET SEQ. 

FN7  SECTION 7 OF BOTH ACTS, 29 U.S.C. (SUPP. III) SEC. 157.  SEE
ALSO SECS. 2(3) AND 13, 29 U.S.C. (SUPP. III) SECS. 152(3), 163; S.
REP. NO. 573, 74TH CONG., 1ST SESS. 8-9(1935); HOUSE CONF. REP. NO.
510, 80TH CONG., 1ST SESS. 38(1947). 

IN THE "DECLARATION OF POLICY" OF THE LABOR MANAGEMENT RELATIONS ACT
OF 1947, CONGRESS STATED: 

"IT IS THE PURPOSE AND POLICY OF THIS ACT, IN ORDER TO PROMOTE THE
FULL FLOW OF COMMERCE, TO PRESCRIBE THE LEGITIMATE RIGHTS OF BOTH
EMPLOYEES AND EMPLOYERS IN THEIR RELATIONS AFFECTING COMMERCE  ...  "
29 U.S.C. (SUPP. III) SEC. 141(B). 

THE "FINDINGS AND POLICIES" OF THE NATIONAL LABOR RELATIONS ACT
PROVIDES, INTER ALIA: 

"IT IS HEREBY DECLARED TO BE THE POLICY OF THE UNITED STATES TO
ELIMINATE THE CAUSES OF CERTAIN SUBSTANTIAL OBSTRUCTIONS TO THE FREE
FLOW OF COMMERCE AND TO MITIGATE AND ELIMINATE THESE OBSTRUCTIONS WHEN
THEY HAVE OCCURRED BY ENCOURAGING THE PRACTICE AND PROCEDURE OF
COLLECTIVE BARGAINING AND BY PROTECTING THE EXERCISE BY WORKERS OF FULL
FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND DESIGNATION OF
REPRESENTATIVES OF THEIR OWN CHOOSING, FOR THE PURPOSE OF NEGOTIATING
THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT OR OTHER MUTUAL AID OR
PROTECTION."  49 STAT. 449, 29 U.S.C. (SUPP. III) SEC. 151. 

FN8  H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 26(1947). 

FN9  SECTION 8(D) OF THE 1947 ACT, 29 U.S.C. (SUPP. III) SEC.
158(D).  PETITIONERS IN BOTH CASES HAD COMPLIED WITH ALL NOTICE
REQUIREMENTS BEFORE STRIKE ACTION WAS TAKEN. 

FN10  SECTION 8(B)(4) OF THE 1947 ACT, 29 U.S.C. (SUPP. III) SEC.
158(B)(4).  SEE ALSO SECS. 10(J) AND 10(1), 29 U.S.C. (SUPP. III) SECS.
160(J), 160(1), EMPOWERING AND DIRECTING THE N.L.R.B. TO OBTAIN
INJUNCTIVE RELIEF AGAINST SUCH UNLAWFUL STRIKES. 

FN11  SECTIONS 206-210 OF THE 1947 ACT, 29 U.S.C. (SUPP. III) SECS.
176-180. 

FN12  OUR DECISION IN O'BRIEN, SUPRA, FOLLOWED SHORTLY AFTER OUR
REVERSAL, PER CURIAM, IN PLANKINTON PACKING CO., SUPRA, WHERE THE
WISCONSIN EMPLOYMENT RELATIONS BOARD HAD, WITH THE APPROVAL OF THE
STATE SUPREME COURT, ORDERED REINSTATEMENT OF AN EMPLOYEE DISCHARGED
BECAUSE OF HIS FAILURE TO JOIN A UNION, EVEN THOUGH HIS EMPLOYMENT WAS
NOT COVERED BY A UNION SHOP OR SIMILAR CONTRACT.  SECTION 7 OF THE
LABOR MANAGEMENT RELATIONS ACT NOT ONLY GUARANTEES THE RIGHT OF SELF
ORGANIZATION AND THE RIGHT TO STRIKE, BUT ALSO GUARANTEES TO INDIVIDUAL
EMPLOYEES THE "RIGHT TO REFRAIN FROM ANY OR ALL OF SUCH ACTIVITIES," AT
LEAST IN THE ABSENCE OF A UNION SHOP OR SIMILAR CONTRACTUAL ARRANGEMENT
APPLICABLE TO THE INDIVIDUAL.  SINCE THE N.L. R.B. WAS GIVEN
JURISDICTION TO ENFORCE THE RIGHTS OF THE EMPLOYEES, IT WAS CLEAR THAT
THE FEDERAL ACT HAD OCCUPIED THIS FIELD TO THE EXCLUSION OF STATE
REGULATION.  PLANKINTON AND O'BRIEN BOTH SHOW THAT STATES MAY NOT
REGULATE IN RESPECT TO RIGHTS GUARANTEED BY CONGRESS IN SEC. 7. 

FN13  E.G., LABOR BOARD V. BALTIMORE TRANSIT CO., 140 F.2D 51, 53
54(C.A.4TH CIR., 1944)(LOCAL TRANSIT COMPANY); PUEBLO GAS & FUEL CO. V.
LABOR BOARD, 118 F.2D 304, 305-306(C.A. 10TH CIR., 1941)(LOCAL GAS
COMPANY); LABOR BOARD V. WESTERN MASSACHUSETTS ELECTRIC CO., 120 F.2D
455, 456-457(C.A. 1ST CIR., 1941); LABOR BOARD V. GULF PUBLIC SERVICE
CO., 116 F.2D 852, 854(C.A.5TH CIR., 1941); CONSUMERS POWER CO. V.
LABOR BOARD, 113 F.2D 38, 39-41(C.A.6TH CIR., 1940); SOUTHERN COLORADO
POWER CO. V. LABOR BOARD, 111 F.2D 539, 541-543(C.A. 10TH CIR.,
1940)(LOCAL POWER COMPANIES).  SEE ALSO VIRGINIA ELEC.  & POWER CO. V.
LABOR BOARD, 115 F.2D 414, 415-416(C.A.4TH CIR., 1940), UPHELD ON THE
QUESTION OF JURISDICTION IN LABOR BOARD V. VIRGINIA ELEC.  & POWER CO.,
314 U.S. 469, 476(1941). 

THE QUESTION OF THE APPLICABILITY OF THE FEDERAL LABOR LAWS TO LOCAL
UTILITIES IS RARELY LITIGATED TODAY.  THE MILWAUKEE GAS LIGHT COMPANY,
EMPLOYER IN NO. 438, CONCEDED BEFORE THE N.L.R.B. THAT IT IS ENGAGED IN
COMMERCE WITHIN THE MEANING OF THE FEDERAL ACT.  50 N.L.R.B. 809,
810(1943). 

IN 1947, IT WAS PROPOSED THAT THE COVERAGE OF THE FEDERAL ACT BE
LIMITED SO AS TO EXCLUDE UTILITIES AND OTHER ENTERPRISES WHOSE
PRODUCTIVE EFFORT DID NOT EXTEND ACROSS STATE LINES.  H.R. 1095, 80TH
CONG., 1ST SESS., SEC. 2(B).  CONGRESS DID NOT ADOPT ANY SUCH
LIMITATION ON THE APPLICATION OF THE NATIONAL LABOR RELATIONS ACT, BUT,
INSTEAD, AMENDED THAT ACT WITH FULL APPRECIATION OF THE EXTENT OF ITS
COVERAGE.  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 40, 44(1947);
S. REP. NO. 105, 80TH CONG., 1ST SESS. 26(1947); H.R. CONF. REP. NO.
510, 80TH CONG., 1ST SESS. 60(1947). 

FN14  THE N.L.R.B. HAS SPECIFICALLY REJECTED THE SUGGESTION THAT IN
GRANTING THE RIGHT TO STRIKE OR IN THE OTHER PROVISIONS OF THE FEDERAL
ACT CONGRESS INTENDED THAT THERE BE ANY DISTINCTION BETWEEN PUBLIC
UTILITY EMPLOYEES AND THOSE OTHERWISE EMPLOYED.  EL PASO ELECTRIC CO.,
13 N.L.R.B. 213, 240(1939), ENFORCED IN EL PASO ELECTRIC CO. V. LABOR
BOARD, 119 F.2D 581(C.A.5TH CIR., 1941). 

IN A RECENT STATEMENT OF POLICY, THE N.L.R.B. DECLARED THAT, IN VIEW
OF THE "IMPORTANT IMPACT ON COMMERCE," JURISDICTION WILL BE EXERCISED
IN "ALL CASES" INVOLVING THE TYPE OF PUBLIC UTILITIES BEFORE US IN
THESE CASES.  LOCAL TRANSIT LINES, 91 N.L.R.B. 623, 26 LRR MAN. 
1547(1950). 

FN15  93 CONG. REC. 3835(1947), STATEMENT OF SENATOR TAFT, QUOTED IN
NOTE 21, INFRA.  THE CASE BILL, H.R. 4908, 79TH CONG., 2D SESS. (1946),
PASSED BY BOTH HOUSES OF CONGRESS DURING THE SESSION IMMEDIATELY
PRECEDING THE ENACTMENT OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947,
PROPOSED SPECIAL TECHNIQUES, INCLUDING A TEMPORARY DENIAL OF THE RIGHT
TO STRIKE, IN CONNECTION WITH "LABOR DISPUTES) AFFECTING COMMERCE,
INVOLVING A PUBLIC UTILITY WHOSE RATES ARE FIXED BY SOME GOVERNMENTAL
AGENCY."  SEC. 6(A).  IN HIS VETO MESSAGE, THE PRESIDENT CRITICIZED THE
SPECIAL TREATMENT ACCORDED TO PUBLIC UTILITIES, 92 CONG. REC. 6674,
6676, (1946).  CONGRESS DID NOT OVERRIDE THE VETO AND, WHILE SUCH
SPECIAL TREATMENT FOR PUBLIC UTILITIES WAS AGAIN PROPOSED IN 1947, NOTE
16, INFRA, NO SUCH DISTINCTION IS FOUND IN THE 1947 LEGISLATION AS
FINALLY ENACTED BY CONGRESS. 

FN16  SECTIONS 206-210 OF THE 1947 ACT, 29 U.S.C. (SUPP. III) SECS.
176-180.  THESE SO-CALLED NATIONAL EMERGENCY PROVISIONS CALL FOR THE
APPOINTMENT OF A BOARD OF INQUIRY TO REPORT THE FACTS OF THE DISPUTE,
FOLLOWED BY A VOTE OF THE EMPLOYEES ON WHETHER TO STRIKE.  AN
INJUNCTION TO MAINTAIN THE STATUS QUO FOR A LIMITED PERIOD PENDING THE
EXHAUSTION OF THESE REMEDIES IS AUTHORIZED BY THE ACT. 

THE HOUSE VERSION OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, H.R.
3020, 80TH CONG., 1ST SESS., CONTAINED A BROADER PROVISION CALLING FOR
A TEMPORARY PROHIBITION ON STRIKES WHENEVER INTERSTATE COMMERCE IN AN
ESSENTIAL PUBLIC SERVICE WAS THREATENED, DURING WHICH TIME AN ADVISORY
SETTLEMENT BOARD WOULD RECOMMEND SPECIFIC TERMS FOR SETTLEMENT.  A
SIMILAR PLAN WAS PROPOSED ON A TEMPORARY BASIS IN H.R. 2861, 80TH
CONG., 1ST SESS., AND APPROVED BY H.R. REP. NO. 235, 80TH CONG., 1ST
SESS. (1947).  THIS PLAN WAS REJECTED IN FAVOR OF THE SENATE VERSION
WHICH PERMITTED A TEMPORARY INJUNCTION AGAINST STRIKES ONLY WHEN THE
"NATIONAL HEALTH OR SAFETY" WAS IMPERILED AND THEN ONLY WHILE A BOARD
OF INQUIRY SIFTED THE FACTS WITHOUT MAKING RECOMMENDATIONS.  H.R. CONF.
REP. NO. 510, 80TH CONG., 1ST SESS. 63-64(1947). 

FN17  THE WISCONSIN ACT APPLIES GENERALLY TO "LABOR DISPUTES BETWEEN
PUBLIC UTILITY EMPLOYERS AND THEIR EMPLOYES WHICH CAUSE OR THREATEN TO
CAUSE AN INTERRUPTION IN THE SUPPLY OF AN ESSENTIAL PUBLIC UTILITY
SERVICE."  WIS. STAT., 1949, SEC. 111.50. 

FN18  COMMUNICATIONS WORKERS OF AMERICA, C.I.O., DIV. 23, AND
WISCONSIN TELEPHONE CO., WIS. E.R.B. DECISION NO. 2358-C (1950),
(ARBITRATORS APPOINTED TO DETERMINE THE WISCONSIN PHASE OF THE NATIONAL
TELEPHONE STRIKE THREATENED IN THE SPRING OF 1950). 

FN19  FAR FROM BEING LEGISLATION AIMED AT "EMERGENCIES," THE
WISCONSIN ACT HAS BEEN INVOKED TO AVERT A THREATENED STRIKE OF CLERICAL
WORKERS OF A UTILITY.  WISCONSIN TELEPHONE CLERICAL UNION AND WISCONSIN
TELEPHONE CO., WIS. E.R.B. CASE NO. 2273 PU-9(1949).  SEE WISCONSIN
TELEPHONE CO. V. WISCONSIN E.R.B., 253 WIS. 584, 34 N.W.2D 844(1948),
WHERE THE WISCONSIN SUPREME COURT REFUSED TO SET ASIDE THE BOARD ORDER
APPOINTING A CONCILIATOR IN THE SAME PROCEEDING ON THE GROUND THAT THE
ORDER WAS NOT APPEALABLE. 

FN20 H.R. 17; H.R. 34; H.R. 68; H.R. 75; H.R. 76, ALL OF THE 80TH
CONG., 1ST SESS.  IN ADDITION TO GRANTING FEDERAL AUTHORITY TO BAN
STRIKES UNDER CERTAIN CIRCUMSTANCES, SEC. 6(A) OF EACH ACT WOULD HAVE
PERMITTED THE OPERATION OF STATE ANTI-STRIKE LEGISLATION.  THIS
LEGISLATIVE PROPOSAL IS DISCUSSED BY REPRESENTATIVE CASE IN 93 CONG.
REC. A1007-A1009(1947). 

SEE ALSO THE OTHER PROPOSALS BEFORE THE SAME SESSION OF CONGRESS TO
DENY THE RIGHT TO STRIKE IN SPECIFIED INSTANCES.  H.R. 90 AND H.R.
1095, BOTH OF THE 80TH CONG., 1ST SESS.    FN21  THE REASONING BEHIND
THE CONGRESSIONAL REJECTION OF ANY PROPOSALS SIMILAR TO THE WISCONSIN
ACT WAS STATED BY SENATOR TAFT AS FOLLOWS, 93 CONG. REC. 3835
3836(1947): 

"BASICALLY, I BELIEVE THAT THE COMMITTEE FEELS, ALMOST UNANIMOUSLY,
THAT THE SOLUTION OF OUR LABOR PROBLEMS MUST REST ON A FREE ECONOMY AND
ON FREE COLLECTIVE BARGAINING.  THE BILL IS CERTAINLY BASED UPON THAT
PROPOSITION.  THAT MEANS THAT WE RECOGNIZE FREEDOM TO STRIKE WHEN THE
QUESTION INVOLVED IS THE IMPROVEMENT OF WAGES, HOURS, AND WORKING
CONDITIONS, WHEN A CONTRACT HAS EXPIRED AND NEITHER SIDE IS BOUND BY A
CONTRACT.  WE RECOGNIZE THAT RIGHT IN SPITE OF THE INCONVENIENCE, AND
IN SOME CASES PERHAPS DANGER, TO THE PEOPLE OF THE UNITED STATES WHICH
MAY RESULT FROM THE EXERCISE OF SUCH RIGHT.  IN THE LONG RUN, I DO NOT
BELIEVE THAT THAT RIGHT WILL BE ABUSED.  IN THE PAST FEW DISPUTES
FINALLY REACHED THE POINT WHERE THERE WAS A DIRECT THREAT TO AND
DEFIANCE OF THE RIGHTS OF THE PEOPLE OF THE UNITED STATES. 

"WE HAVE CONSIDERED THE QUESTION WHETHER THE RIGHT TO STRIKE CAN BE
MODIFIED.  I THINK IT CAN BE MODIFIED IN CASES WHICH DO NOT INVOLVE THE
BASIC QUESTION OF WAGES, PRICES, AND WORKING CONDITIONS.  BUT IF WE
IMPOSE COMPULSORY ARBITRATION, OR IF WE GIVE THE GOVERNMENT POWER TO
FIX WAGES AT WHICH MEN MUST WORK FOR ANOTHER YEAR OR FOR TWO YEARS TO
COME, I DO NOT SEE HOW IN THE END WE CAN ESCAPE A COLLECTIVE ECONOMY. 
IF WE GIVE THE GOVERNMENT POWER TO FIX WAGES, I DO NOT SEE HOW WE CAN
TAKE FROM THE GOVERNMENT THE POWER TO FIX PRICES; AND IF THE GOVERNMENT
FIXES WAGES AND PRICES, WE SOON REACH THE POINT WHERE ALL INDUSTRY IS
UNDER GOVERNMENT CONTROL, AND FINALLY THERE IS A COMPLETE SOCIALIZATION
OF OUR ECONOMY. 

"I FEEL VERY STRONGLY THAT SO FAR AS POSSIBLE WE SHOULD AVOID ANY
SYSTEM WHICH ATTEMPTS TO GIVE TO THE GOVERNMENT THIS POWER FINALLY TO
FIX THE WAGES OF ANY MAN.  CAN WE DO SO CONSTITUTIONALLY?  CAN WE SAY
TO ALL THE PEOPLE OF THE UNITED STATES, 'YOU MUST WORK AT WAGES FIXED
BY THE GOVERNMENT'?  I THINK IT IS A LONG STEP FROM FREEDOM AND A LONG
STEP FROM A FREE ECONOMY TO GIVE THE GOVERNMENT SUCH A RIGHT. 

"IT IS SUGGESTED THAT WE MIGHT DO SO IN THE CASE OF PUBLIC UTILITIES;
AND I SUPPOSE THE ARGUMENT IS STRONGER THERE, BECAUSE WE FIX THE RATES
OF PUBLIC UTILITIES, AND WE MIGHT, I SUPPOSE, FIX THE WAGES OF PUBLIC
UTILITY WORKERS.  YET WE HAVE HESITATED TO EMBARK EVEN ON THAT COURSE,
BECAUSE IF WE ONCE BEGIN A PROCESS OF THE GOVERNMENT FIXING WAGES, IT
MUST END IN MORE AND MORE WAGE FIXING AND FINALLY GOVERNMENT PRICE
FIXING.  IT MAY BE A POPULAR THING TO DO.  TODAY PEOPLE SEEM TO THINK
THAT ALL THAT IT IS NECESSARY TO DO IS TO FORBID STRIKES, FIX WAGES,
AND COMPEL MEN TO CONTINUE WORKING, WITHOUT CONSIDERATION OF THE HUMAN
AND CONSTITUTIONAL PROBLEMS INVOLVED IN THAT PROCESS. 

"IF WE BEGIN WITH PUBLIC UTILITIES, IT WILL BE SAID THAT COAL AND
STEEL ARE JUST AS IMPORTANT AS PUBLIC UTILITIES.  I DO NOT KNOW WHERE
WE COULD DRAW THE LINE.  SO FAR AS THE BILL IS CONCERNED, WE HAVE
PROCEEDED ON THE THEORY THAT THERE IS A RIGHT TO STRIKE AND THAT LABOR
PEACE MUST BE BASED ON FREE COLLECTIVE BARGAINING.  WE HAVE DONE
NOTHING TO OUTLAW STRIKES FOR BASIC WAGES, HOURS, AND WORKING
CONDITIONS AFTER PROPER OPPORTUNITY FOR MEDIATION. 

     .         .         .         .         . 

"WE DID NOT FEEL THAT WE SHOULD PUT INTO THE LAW, AS A PART OF THE
COLLECTIVE-BARGAINING MACHINERY, AN ULTIMATE RESORT TO COMPULSORY
ARBITRATION, OR TO SEIZURE, OR TO ANY OTHER ACTION.  WE FEEL THAT IT
WOULD INTERFERE WITH THE WHOLE PROCESS OF COLLECTIVE BARGAINING.  IF
SUCH A REMEDY IS AVAILABLE AS A ROUTINE REMEDY, THERE WILL ALWAYS BE
PRESSURE TO RESORT TO IT BY WHICHEVER PARTY THINKS IT WILL RECEIVE
BETTER TREATMENT THROUGH SUCH A PROCESS THAN IT WOULD RECEIVE IN
COLLECTIVE BARGAINING, AND IT WILL BACK OUT OF COLLECTIVE BARGAINING. 
IT WILL NOT MAKE A BONA-FIDE ATTEMPT TO SETTLE IF IT THINKS IT WILL
RECEIVE A BETTER DEAL UNDER THE FINAL ARBITRATION WHICH MAY BE
PROVIDED." 

SEE ALSO S. REP. NO. 105, 80TH CONG., 1ST SESS. 13-14, 28(1947). 

FN22  CONGRESS DEMONSTRATED ITS ABILITY TO DENY IN EXPRESS TERMS THE
RIGHT TO STRIKE WHEN IT SO DESIRED.  SEE SEC. 305 OF THE 1947 ACT, 29
U.S.C. (SUPP. III) SEC. 188, MAKING IT UNLAWFUL FOR EMPLOYEES OF THE
UNITED STATES OR ITS AGENCIES TO PARTICIPATE IN ANY STRIKE. 

FN23  SECTION 10(A) OF THE 1947 ACT, 29 U.S.C. (SUPP. III) SEC.
160(A).  A PROVISO OF SEC. 10(A) AUTHORIZES CESSION OF JURISDICTION TO
THE STATES ONLY WHERE THE STATE LAW IS CONSISTENT WITH THE FEDERAL
LEGISLATION.  THIS INSURES THAT THE NATIONAL LABOR POLICY WILL NOT BE
THWARTED EVEN IN THE PREDOMINANTLY LOCAL ENTERPRISES TO WHICH THE
PROVISO APPLIES.  S. REP. NO. 105, 80TH CONG., 1ST SESS. 26(1947).  SEE
ALSO MINORITY VIEWS TO SAME REPORT, ID., PT. 2, 38, AGREEING AS TO THIS
FEATURE OF THE LEGISLATION. 

FN24  H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 44(1947). 

FN25  SEE SECS. 8(D), 14(B), 202(C) AND 203(B), 29 U.S.C. (SUPP. III)
SECS. 158(D), 164(B), 172(C), AND 173(B), IN ADDITION TO SEC. 10(A) OF
THE 1947 ACT FOR EXAMPLES OF CONGRESSIONAL DIRECTION AS TO THE ROLE
THAT STATES WERE TO PLAY IN THE AREA OF LABOR REGULATION COVERED BY THE
FEDERAL ACT.  AND SECS. 2(2) AND 2(3) OF THE FEDERAL ACT, 29 U.S.C.
(SUPP. III) SECS. 152(2), 152(3), SPECIFICALLY EXCLUDE FROM ITS
OPERATION THE EMPLOYEES OF "ANY STATE OR POLITICAL SUBDIVISION
THEREOF." 

FN26  SECS. 8(A)(5) AND 8(B)(3); 29 U.S.C. (SUPP. III) SECS.
158(A)(5), 158(B)(3). 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON AND MR. JUSTICE
MINTON JOIN, DISSENTING. 

WISCONSIN HAS PROVIDED THAT LABOR DISPUTES IN PUBLIC UTILITIES SHALL
BE RESOLVED BY CONCILIATION OR COMPULSORY ARBITRATION IF: 

(1)  AFTER EXERTING "EVERY REASONABLE EFFORT TO SETTLE LABOR
DISPUTES" BY COLLECTIVE BARGAINING, THE PARTIES HAVE REACHED A "STATE
OF IMPASSE AND STALEMATE," AND 

(2)  THE LABOR DISPUTE, IF NOT SETTLED, IS "LIKELY TO CAUSE
INTERRUPTION OF THE SUPPLY OF AN ESSENTIAL PUBLIC UTILITY SERVICE." 
WIS. STAT., 1949, SECS. 111.50-111.65.  FN1 

IN THE CASES BEFORE US, THE STATUTE HAS BEEN APPLIED TO PREVENT A
HALT IN SERVICE BY TWO UTILITY COMPANIES.  FN2  ONE FURNISHES HEATING
AND ILLUMINATING GAS TO THE GENERAL PUBLIC IN THE CITY AND COUNTY OF
MILWAUKEE.  THE OTHER PROVIDES BUS AND STREETCAR TRANSPORTATION IN THE
SAME AREA.  BOTH THESE COMPANIES GIVE UTILITY SERVICE ONLY WITHIN THE
STATE OF WISCONSIN BUT HAVE BEEN FOUND SUBJECT TO THE TAFT-HARTLEY ACT
BECAUSE THEIR ACTIVITIES "AFFECT COMMERCE."  COMPARE CONSOLIDATED
EDISON CO. V. LABOR BOARD, 305 U.S. 197; LA CROSSE TELEPHONE CORP. V.
WISCONSIN BOARD, 336 U.S. 18.  THE QUESTION IS WHETHER THE WISCONSIN
STATUTE, SO APPLIED, CONFLICTS WITH THE TAFT-HARTLEY ACT, 61 STAT. 136,
29 U.S.C. (SUPP. III) SECS. 141 ET SEQ. 

A CLAIM OF CONFLICT BETWEEN STATE AND FEDERAL LABOR LEGISLATION
PRESENTS A FAMILIAR PROBLEM.  ON EIGHT OCCASIONS THIS COURT HAS
CONSIDERED WHETHER THE TAFT-HARTLEY ACT, OR ITS PREDECESSOR, THE WAGNER
ACT, 49 STAT. 449, SO COLLIDED WITH STATE LAW AS TO DISPLACE IT.  WE
HAVE SUSTAINED STATE LAWS WHICH DEALT WITH MASS PICKETING AND
INTERMITTENT WORK STOPPAGES.  ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD,
315 U.S. 740; INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS V.
WISCONSIN BOARD, 336 U.S. 245.  WE HAVE ALSO UPHELD A STATE LAW WHICH
REQUIRED A TWO-THIRDS VOTE FOR A MAINTENANCE-OF-MEMBERSHIP CLAUSE IN
COLLECTIVE AGREEMENTS.  ALGOMA PLYWOOD CO. V. WISCONSIN BOARD, 336 U.S.
301. 

ON THE OTHER HAND, WE HAVE FOUND IN FIVE CASES THAT THE STATE LAW
COULD NOT CONSISTENTLY STAND WITH THE FEDERAL LAW.  IN HILL V. FLORIDA,
325 U.S. 538, THE STATE WAS FOUND TO HAVE INTERFERED WITH THE FREEDOM
IN SELECTING BARGAINING AGENTS AS GUARANTEED BY THE FEDERAL ACT.  IN
BETHLEHEM STEEL CO. V. NEW YORK BOARD, 330 U.S. 767, THE STATE
RECOGNIZED A FOREMEN'S UNION CONTRARY TO ESTABLISHED POLICY OF THE
NATIONAL BOARD.  IN LA CROSSE TELEPHONE CORP. V. WISCONSIN BOARD,
SUPRA, A CONFLICT WAS FOUND IN THE BARGAINING UNITS DETERMINED UNDER
THE STATE AND FEDERAL ACTS.  IN PLANKINTON PACKING CO. V. WISCONSIN
BOARD, 338 U.S. 953, A STATE SUPERIMPOSED UPON FEDERAL OUTLAWRY OF
CONDUCT AS AN "UNFAIR LABOR PRACTICE" ITS OWN FINDING OF UNFAIRNESS. 
IN INTERNATIONAL UNION OF UNITED AUTOMOBILE WORKERS V. O'BRIEN, 339
U.S. 454, A STATE ACT COVERING ALL INDUSTRY PERMITTED STRIKES AT A
DIFFERENT TIME THAN THE FEDERAL ACT AND REQUIRED, UNLIKE FEDERAL LAW, A
MAJORITY AUTHORIZATION FOR ANY STRIKE.  ALSO, THESE PROVISIONS WERE
APPLIED TO ONLY THAT PORTION OF A BARGAINING UNIT, ALREADY DETERMINED
UNDER THE FEDERAL ACT, LOCATED WITHIN THE STATE OF MICHIGAN. 

"THE PRINCIPLE IS THOROUGHLY ESTABLISHED THAT THE EXERCISE BY THE
STATE OF ITS POLICE POWER, WHICH WOULD BE VALID IF NOT SUPERSEDED BY
FEDERAL ACTION, IS SUPERSEDED ONLY WHERE THE REPUGNANCE OR CONFLICT IS
SO 'DIRECT AND POSITIVE' THAT THE TWO ACTS CANNOT 'BE RECONCILED OR
CONSISTENTLY STAND TOGETHER.'"  CHIEF JUSTICE HUGHES IN KELLY V.
WASHINGTON, 302 U.S. 1, 10.  IT IS CLEAR FROM THE DECISIONS JUST
CANVASSED THAT THE STATES ARE NOT PRECLUDED FROM ENACTING LAWS ON LABOR
RELATIONS MERELY BECAUSE CONGRESS HAS - TO USE THE CONVENTIONAL PHRASE
ENTERED THE FIELD.  IT IS EQUALLY CLEAR THAT THE BOUNDARIES WITHIN
WHICH A STATE MAY ACT ARE DETERMINED BY THE TERRAIN AND NOT BY ABSTRACT
PROJECTION.  EMPHASIS IN THE OPINIONS HAS VARIED, BUT THE GUIDING
PRINCIPLE IS STILL THAT SET OUT IN THE FIRST IN THE SERIES OF
IMMEDIATELY RELEVANT CASES:  WHETHER "THE STATE SYSTEM OF REGULATION,
AS CONSTRUED AND APPLIED HERE, CAN BE RECONCILED WITH THE FEDERAL ACT
AND ...  THE TWO AS FOCUSED IN THIS CASE CAN CONSISTENTLY STAND
TOGETHER  ...  "  ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, SUPRA, AT
751.  THE ADJUSTMENT THUS CALLED FOR BETWEEN STATE AND NATIONAL
INTERESTS IS NOT ATTAINED BY RELIANCE ON UNCRITICAL GENERALITIES OR
RHETORICAL PHRASES UNNOURISHED BY THE PARTICULARITIES OF SPECIFIC
SITUATIONS. 

AT THE OUTSET IT SHOULD BE NOTED THAT THE TAFT-HARTLEY ACT DOES NOT,
IN SPECIFIC TERMS, DEAL WITH THE PROBLEM OF LOCAL STRIKES IN PUBLIC
UTILITIES EVEN THOUGH SUCH STRIKES, AS A MATTER OF CONSTITUTIONAL LAW,
MAY BE BROUGHT UNDER FEDERAL CONTROL.  CONGRESS CONSIDERED AND REJECTED
SPECIAL PROVISION FOR SETTLING PUBLIC-UTILITY DISPUTES UNDER FEDERAL
LAW.  SEE STATEMENT OF SENATOR TAFT, 93 CONG. REC. 3835.  SO FAR AS THE
STATUTE AND ITS LEGISLATIVE HISTORY INDICATE, HOWEVER, CONGRESS DECIDED
NO MORE THAN THAT IT DID NOT WISH TO SUBJECT LOCAL UTILITIES TO THE
CONTROL OF THE FEDERAL GOVERNMENT.  DUE REGARD FOR BASIC ELEMENTS IN
OUR FEDERAL SYSTEM MAKES IT APPROPRIATE THAT CONGRESS BE EXPLICIT IF IT
DESIRES TO REMOVE FROM THE ORBIT OF STATE REGULATION MATTERS OF SUCH
INTIMATE CONCERN TO A LOCALITY AS THE CONTINUED MAINTENANCE OF SERVICES
ON WHICH THE DECENT LIFE OF A MODERN COMMUNITY RESTS. 

THE REAL ISSUE BEFORE THE COURT IS WHETHER THE WISCONSIN LEGISLATION
SO CONFLICTS WITH THE SPECIFIC TERMS OR THE POLICY FAIRLY ATTRIBUTABLE
TO THE PROVISIONS OF THE FEDERAL STATUTE THAT THE TWO CANNOT STAND
TOGETHER.  WE ARE FIRST MET WITH THE PROVISIONS OF THE TAFT-HARTLEY ACT
CONCERNING THE "RIGHT" TO STRIKE.  SECTION 7 PROVIDES:  "EMPLOYEES
SHALL HAVE THE RIGHT  ...  TO ENGAGE IN OTHER CONCERTED ACTIVITIES FOR
THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION,
...  "  SECTION 13 PROVIDES:  "NOTHING IN THIS ACT, EXCEPT AS
SPECIFICALLY PROVIDED FOR HEREIN, SHALL BE CONSTRUED SO AS EITHER TO
INTERFERE WITH OR IMPEDE OR DIMINISH IN ANY WAY THE RIGHT TO STRIKE, OR
TO AFFECT THE LIMITATIONS OR QUALIFICATIONS ON THAT RIGHT."  THE WORD
"RIGHT" IS "ONE OF THE MOST DECEPTIVE OF PITFALLS."  MR. JUSTICE
HOLMES, IN AMERICAN BANK & TRUST CO. V. FEDERAL BANK, 256 U.S. 350,
358.  WE HAVE SEVERAL TIMES REJECTED AN INVITATION TO DECIDE CASES UPON
THE BASIS OF AN ABSOLUTE RIGHT TO STRIKE.  IN INTERNATIONAL UNION,
UNITED AUTOMOBILE WORKERS V. WISCONSIN BOARD, SUPRA, WE FOUND THERE WAS
NO "RIGHT" TO STRIKE IN VIOLATION OF A STATE LAW CONSTRUED TO PROHIBIT
INTERMITTENT WORK STOPPAGES.  IN SOUTHERN STEAMSHIP CO. V. LABOR BOARD,
316 U.S. 31, WE FOUND THERE WAS NO "RIGHT" TO STRIKE IN VIOLATION OF A
FEDERAL MUTINY STATUTE.  IN TWO OTHER CASES WE HELD THAT EMPLOYEES WHO
STRIKE IN VIOLATION OF A COLLECTIVE AGREEMENT OR ENGAGE IN "SIT-DOWN"
STRIKES ARE NOT PROTECTED UNDER THE FEDERAL STATUTE.  LABOR BOARD V.
SANDS MFG. CO., 306 U.S. 332; LABOR BOARD V. FANSTEEL CORP.(, 306 U.S.
240.  MAY THE "RIGHT" TO STRIKE BE ALSO LIMITED BY AN OTHERWISE VALID
STATE STATUTE AIMED AT PREVENTING A BREAKDOWN OF PUBLIC-UTILITY
SERVICE? 

"PUBLIC UTILITY EMPLOYER" IS DEFINED IN THE WISCONSIN ACT TO MEAN AN
EMPLOYER "ENGAGED IN THE BUSINESS OF FURNISHING WATER, LIGHT, HEAT,
GAS, ELECTRIC POWER, PUBLIC PASSENGER TRANSPORTATION OR COMMUNICATION
...  "  SEC. 111.51.  LABOR RELATIONS IN SUCH UTILITIES HAVE
TRADITIONALLY BEEN SUBJECTED TO REGULATION IN A WAY THAT THOSE IN OTHER
INDUSTRIES HAVE NOT.  SEE WILSON V. NEW, 243 U.S. 332, 349.  COMPARE
CONSPIRACY, AND PROTECTION OF PROPERTY ACT, 38 & 39 VICT., C. 86, PAR.
4(1875).  THE RANGE OF CONTROL OVER BUSINESS GENERALLY HAS BEEN GREATLY
EXTENDED BY MODERN LAW.  BUT THE HISTORIC AMENABILITY TO LEGAL CONTROL
OF PUBLIC CALLINGS IS ROOTED DEEP.  SEE WOLFF PACKING CO. V. COURT OF
INDUSTRIAL RELATIONS, 262 U.S. 522, 543.  A STOPPAGE IN UTILITY SERVICE
SO CLEARLY INVOLVES THE NEEDS OF A COMMUNITY AS TO EVOKE INSTINCTIVELY
THE POWER OF GOVERNMENT.  THIS COURT SHOULD NOT IGNORE HISTORY AND
ECONOMIC FACTS IN CONSTRUING FEDERAL LEGISLATION THAT COMES WITHIN THE
AREA OF INTERACTING STATE AND FEDERAL CONTROL.  TO DERIVE FROM THE
GENERAL LANGUAGE OF THE FEDERAL ACT A "RIGHT" TO STRIKE IN VIOLATION OF
A STATE LAW REGULATING PUBLIC UTILITIES IS TO STRIP FROM WORDS THE
LIMITS INHERENT IN THEIR CONTEXT.    AN ATTEMPT BY A STATE TO IMPOSE
UPON INDUSTRY AS A WHOLE A DRASTIC LIMITATION UPON THE RIGHT TO STRIKE
WOULD CONFLICT WITH THE FEDERAL LAW.  COMPARE UNITED AUTOMOBILE WORKERS
V. O'BRIEN, SUPRA. AND EVEN AS TO EMERGENCY DISPUTES - THOSE INVOLVING
THE OBVIOUS PUBLIC SERVICES - IT MAY BE URGED THAT THE PROSPECT OF
SETTLEMENT BY ARBITRATION MAY TEND TO MAKE ONE OR BOTH PARTIES
RELUCTANT TO REACH AN AGREEMENT BY BARGAINING.  SEE KENNEDY, THE
HANDLING OF EMERGENCY DISPUTES, PROCEEDINGS OF SECOND ANNUAL MEETING OF
INDUSTRIAL RELATIONS RESEARCH ASSN. 14, 21-22(1949). 

BUT THE PRINCIPLE OF HANDS-OFF COLLECTIVE BARGAINING IS NO MORE
ABSOLUTE THAN THE RIGHT TO STRIKE.  THE "NATIONAL EMERGENCY" PROVISIONS
IN THE TAFT-HARTLEY ACT ARE AN AFFIRMATIVE INDICATION THAT THE FORCE OF
COLLECTIVE BARGAINING MAY BE LIMITED IN EMERGENCY SITUATIONS.  TITLE II
OF THE TAFT-HARTLEY ACT PROVIDES FOR SPECIAL MEDIATION PROCEDURES, A
COOLING-OFF PERIOD, AND BALLOT BY EMPLOYEES ON THE FINAL OFFER OF THE
EMPLOYER, IN ORDER TO PREVENT A STRIKE OR LOCKOUT IN "AN ENTIRE
INDUSTRY OR A SUBSTANTIAL PART THEREOF" IF NECESSARY TO AVOID PERIL TO
"THE NATIONAL HEALTH OR SAFETY."  SEC. 206.  AND CONGRESS APPARENTLY
EXPECTED THAT ADDITIONAL LAWS WOULD BE ENACTED IF NECESSARY.  FN3  THE
"NATIONAL EMERGENCY" PROVISIONS WERE AIMED AT STRIKES OF NATION-WIDE
SIGNIFICANCE.  THEY HAVE BEEN APPLIED IN EIGHT DISPUTES FROM 1947 TO
1950:  TWICE IN INDUSTRY-WIDE OR COAST-WIDE MARITIME NEGOTIATIONS;
THREE TIMES IN INDUSTRY-WIDE BITUMINOUS-COAL NEGOTIATIONS; AND IN
DISPUTES ARISING IN THE MEAT-PACKING INDUSTRY, THE NATIONAL TELEPHONE
INDUSTRY, AND THE ATOMIC-ENERGY INSTALLATION AT OAK RIDGE.  U.S. DEPT.
OF LABOR, BUREAU OF LABOR STATISTICS, FEDERAL FACT-FINDING BOARDS AND
BOARDS OF INQUIRY (1950) 2. 

TITLE II WOULD BE AVAILABLE FOR SETTLEMENT OF THE DISPUTES INVOLVED
IN THE CASES BEFORE US ONLY IF THEY WERE A PART OF A NATION-WIDE
UTILITY DISPUTE CREATING A NATIONAL EMERGENCY BUT THE CAREFUL
CONSIDERATION GIVEN TO THE PROBLEM OF MEETING NATION-WIDE EMERGENCIES
AND THE FAILURE TO PROVIDE FOR EMERGENCIES OTHER THAN THOSE AFFECTING
THE NATION AS A WHOLE DO NOT IMPLY PARALYSIS OF STATE POLICE POWER. 
RATHER, THEY IMPLY THAT THE STATES RETAIN THE POWER TO PROTECT THE
PUBLIC INTEREST IN EMERGENCIES ECONOMICALLY AND PRACTICALLY CONFINED
WITHIN A STATE.  IT IS NOT REASONABLE TO IMPUTE TO CONGRESS THE DESIRE
TO LEAVE STATES HELPLESS IN MEETING LOCAL SITUATIONS WHEN CONGRESS
RESTRICTED NATIONAL INTERVENTION TO NATIONAL EMERGENCIES. 

ONLY ONE OTHER OF THE PETITIONERS' ARGUMENTS RAISES A SUBSTANTIAL
QUESTION OF CONFLICT.  FN5 SECTION 111.58 OF THE WISCONSIN ACT
PROHIBITS THE ARBITRATOR FROM MAKING AN AWARD "WHICH WOULD INFRINGE
UPON THE RIGHT OF THE EMPLOYER TO MANAGE HIS BUSINESS."  IN NO. 330,
POST, P. 416, THE WISCONSIN COURT AFFIRMED THE BOARD'S ORDER REFUSING
TO MAKE AN AWARD DEALING WITH THE COMPOSITION OF SHIFTS.  IT IS ARGUED
THAT THIS CONSTRUCTION OF THE WISCONSIN STATUTE BRINGS IT IN CONFLICT
WITH THE BOARD POSITION THAT PARTIES MUST BARGAIN ON SUCH AN ISSUE. 
SEE AMERICAN NATIONAL INSURANCE CO., 89 N.L.R.B. 185; WOODSIDE COTTON
MILLS, 21 N.L.R.B. 42, 54-55.  THE TERM IN THE WISCONSIN STATUTE DEALS
NOT WITH THE SCOPE OF BARGAINING, BUT WITH THE POWER OF AN ARBITRATOR
TO MAKE AN AWARD AFTER BARGAINING HAS FAILED.  THE STATE LAW DOES
NOTHING TO RELIEVE THE EMPLOYER OF HIS DUTY TO BARGAIN UNDER THE
FEDERAL ACT, NOR IS THERE ANY INDICATION THAT THE DUTY TO BARGAIN UNDER
THE STATE ACT DIFFERS FROM THAT UNDER THE FEDERAL ACT. 

WHETHER THE STATE CHOSE WISELY IN ADOPTING ARBITRATION RATHER THAN
TAKING NO MEASURE OR TAKING A MORE FORCEFUL MEASURE TO PROTECT THE
PUBLIC INTEREST IS NOT FOR US TO DECIDE.  SEIZURE OR MARTIAL LAW OR
OTHER AFFIRMATIVE ACTION BY THE STATE MIGHT BE JUST AS DELETERIOUS TO
COLLECTIVE BARGAINING AS ENFORCED ARBITRATION, APART FROM RAISING OTHER
CONTENTIOUS ISSUES.  IF THERE IS LEGISLATIVE CHOICE IT IS NOT FOR US TO
DEMAND THAT WHAT IS CHOSEN SHOULD COMMEND ITSELF TO OUR PRIVATE NOTIONS
OF WISE POLICY.  AS TO STRIKES CREATING A NATION-WIDE EMERGENCY, THE
PROVISIONS OF THE TAFT-HARTLEY ACT INDICATE THAT THE PRINCIPLE OF
COLLECTIVE BARGAINING MAY TO SOME EXTENT BE SUBORDINATED TO THE
INTEREST OF THE PUBLIC.  I FIND NO INDICATION IN THE STATUTE THAT THE
STATES ARE NOT EQUALLY FREE TO PROTECT THE PUBLIC INTEREST IN STATE
EMERGENCIES. 

THE CLAIM THAT THE WISCONSIN STATUTE VIOLATES THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT WAS FOR ME DEFINITIVELY ANSWERED THIRTY
YEARS AGO BY MR. JUSTICE BRANDEIS: 

"BECAUSE I HAVE COME TO THE CONCLUSION THAT BOTH THE COMMON LAW OF A
STATE AND A STATUTE OF THE UNITED STATES (THE CLAYTON ACT) DECLARE THE
RIGHT OF INDUSTRIAL COMBATANTS TO PUSH THEIR STRUGGLE TO THE LIMITS OF
THE JUSTIFICATION OF SELF-INTEREST, I DO NOT WISH TO BE UNDERSTOOD AS
ATTACHING ANY CONSTITUTIONAL OR MORAL SANCTION TO THAT RIGHT.  ALL
RIGHTS ARE DERIVED FROM THE PURPOSES OF THE SOCIETY IN WHICH THEY
EXIST; ABOVE ALL RIGHTS RISES DUTY TO THE COMMUNITY.  THE CONDITIONS
DEVELOPED IN INDUSTRY MAY BE SUCH THAT THOSE ENGAGED IN IT CANNOT
CONTINUE THEIR STRUGGLE WITHOUT DANGER TO THE COMMUNITY.  BUT IT IS NOT
FOR JUDGES TO DETERMINE WHETHER SUCH CONDITIONS EXIST, NOR IS IT THEIR
FUNCTION TO SET THE LIMITS OF PERMISSIBLE CONTEST AND TO DECLARE THE
DUTIES WHICH THE NEW SITUATION DEMANDS.  THIS IS THE FUNCTION OF THE
LEGISLATURE WHICH, WHILE LIMITING INDIVIDUAL AND GROUP RIGHTS OF
AGGRESSION AND DEFENSE, MAY SUBSTITUTE PROCESSES OF JUSTICE FOR THE
MORE PRIMITIVE METHOD OF TRIAL BY COMBAT."  DUPLEX CO. V. DEERING, 254
U.S. 443, 488(DISSENTING). 

FN1  SECTION 111.50 STATES THE POLICY OF THE STATUTE IN THE FOLLOWING
TERMS: 

"IT IS HEREBY DECLARED TO BE THE PUBLIC POLICY OF THIS STATE THAT IT
IS NECESSARY AND ESSENTIAL IN THE PUBLIC INTEREST TO FACILITATE THE
PROMPT, PEACEFUL AND JUST SETTLEMENT OF LABOR DISPUTES BETWEEN PUBLIC
UTILITY EMPLOYERS AND THEIR EMPLOYES WHICH CAUSE OR THREATEN TO CAUSE
AN INTERRUPTION IN THE SUPPLY OF AN ESSENTIAL PUBLIC UTILITY SERVICE TO
THE CITIZENS OF THIS STATE AND TO THAT END TO ENCOURAGE THE MAKING AND
MAINTAINING OF AGREEMENTS CONCERNING WAGES, HOURS AND OTHER CONDITIONS
OF EMPLOYMENT THROUGH COLLECTIVE BARGAINING BETWEEN PUBLIC UTILITY
EMPLOYERS AND THEIR EMPLOYES, AND TO PROVIDE SETTLEMENT PROCEDURES FOR
LABOR DISPUTES BETWEEN PUBLIC UTILITY EMPLOYERS AND THEIR EMPLOYES IN
CASES WHERE THE COLLECTIVE BARGAINING PROCESS HAS REACHED AN IMPASSE
AND STALEMATE AND AS A RESULT THEREOF THE PARTIES ARE UNABLE TO EFFECT
SUCH SETTLEMENT AND WHICH LABOR DISPUTES, IF NOT SETTLED, ARE LIKELY TO
CAUSE INTERRUPTION OF THE SUPPLY OF AN ESSENTIAL PUBLIC UTILITY
SERVICE.  THE INTERRUPTION OF PUBLIC UTILITY SERVICE RESULTS IN DAMAGE
AND INJURY TO THE PUBLIC WHOLLY APART FROM THE EFFECT UPON THE PARTIES
IMMEDIATELY CONCERNED AND CREATES AN EMERGENCY JUSTIFYING ACTION WHICH
ADEQUATELY PROTECTS THE GENERAL WELFARE." 

"PUBLIC UTILITY EMPLOYER" IS DEFINED AS ANY EMPLOYER "ENGAGED IN THE
BUSINESS OF FURNISHING WATER, LIGHT, HEAT, GAS, ELECTRIC POWER, PUBLIC
PASSENGER TRANSPORTATION OR COMMUNICATION  ...  " SEC. 111.51. 

COLLECTIVELY.  IF COLLECTIVE BARGAINING FAILS, THE STATUTE PROVIDES FOR
A CONCILIATION PROCEDURE.  SEC. 111.54.  IF THE CONCILIATOR IS UNABLE
TO EFFECT A SETTLEMENT WITHIN 15 DAYS, THE DISPUTE IS SUBMITTED TO
ARBITRATION.  SEC. 111.55.  EXISTING WAGES, HOURS, AND CONDITIONS OF
EMPLOYMENT ARE TO BE MAINTAINED DURING CONCILIATION AND ARBITRATION. 
SEC. 111.56. 

STANDARDS FOR THE ARBITRATOR ARE SET FORTH IN THE STATUTE, SEC.
111.57, AND HE IS FORBIDDEN TO MAKE AN AWARD WHICH "WOULD INFRINGE UPON
THE RIGHT OF THE EMPLOYER TO MANAGE HIS BUSINESS" OR "WOULD INTERFERE
WITH THE INTERNAL AFFAIRS OF THE UNION."  SEC. 111.58.  THE
ARBITRATOR'S AWARD BECOMES BINDING ON THE PARTIES "TOGETHER WITH SUCH
AGREEMENTS AS THE PARTIES MAY THEMSELVES HAVE REACHED."  SEC. 111.59. 
IT MAY BE CHANGED BY "MUTUAL CONSENT OR AGREEMENT OF THE PARTIES," SEC.
111.59, AND IS SUBJECT TO JUDICIAL REVIEW.  SEC. 111.60. 

THE STATUTE MAKES IT UNLAWFUL FOR ANY GROUP OF PUBLIC-UTILITY
EMPLOYEES "ACTING IN CONCERT" TO CALL A STRIKE OR GO OUT ON STRIKE OR
CAUSE A WORK STOPPAGE OR SLOWDOWN WHICH WOULD CAUSE AN INTERRUPTION OF
AN ESSENTIAL SERVICE.  THE STATUTE ALSO MAKES IT UNLAWFUL FOR A PUBLIC
UTILITY EMPLOYER TO LOCK OUT HIS EMPLOYEES IF SUCH ACTION WOULD CAUSE
AN INTERRUPTION OF ESSENTIAL SERVICE.  SEC. 111.62.  SUCH UNLAWFUL
ACTION ON THE PART OF EITHER EMPLOYER OR EMPLOYEES MAY BE ENJOINED IN
AN ACTION INSTITUTED BY THE STATE BOARD.  SEC. 111.63.  SECTION 111.64
MAKES CLEAR THAT ONLY A CONCERTED REFUSAL TO WORK IS MADE UNLAWFUL, AND
PROVIDES THAT NO COURT SHALL ISSUE PROCESS "TO COMPEL AN INDIVIDUAL
EMPLOYE TO RENDER LABOR OR SERVICE OR TO REMAIN AT HIS PLACE OF
EMPLOYMENT WITHOUT HIS CONSENT." 

FN2  THE SITUATION BEFORE US INVOLVES SOLELY THE INTERRUPTION IN
ESSENTIAL SERVICES OF A PUBLIC UTILITY.  ANY ATTEMPT BY WISCONSIN TO
APPLY ITS ARBITRAL SCHEME TO A LABOR DISPUTE THAT DOES NOT CLEARLY
INVOLVE SUCH AN ESSENTIAL UTILITY OPERATION IS NOT NOW IN ISSUE.  THIS
MAKES IT UNNECESSARY FOR US TO CONSIDER WHETHER THE WISCONSIN LAW MIGHT
BE CONSTITUTIONALLY APPLIED TO A STRIKE OF CLERICAL EMPLOYEES SUCH AS
THAT INVOLVED IN WISCONSIN TELEPHONE CO. V. WISCONSIN BOARD, 253 WIS.
584, 34 N.W.2D 844.  IN THAT CASE THE WISCONSIN COURT DID NOT UPHOLD
APPLICATION OF THE STATUTE TO THE PARTICULAR DISPUTE.  IT HELD ONLY
THAT THE STATE BOARD'S ACTION IN APPOINTING A CONCILIATOR WAS A
PRELIMINARY ORDER AND HENCE, UNDER PRINCIPLES OF ADMINISTRATIVE LAW,
NOT REVIEWABLE. 

FN3  SEE S. REP. NO. 105, 80TH CONG., 1ST SESS. 15:  "IN MOST
INSTANCES THE FORCE OF PUBLIC OPINION SHOULD MAKE ITSELF SUFFICIENTLY
FELT IN (THE) 80-DAY PERIOD (DURING WHICH THE STRIKE IS ENJOINED) TO
BRING ABOUT A PEACEFUL TERMINATION OF THE CONTROVERSY.  SHOULD THIS
EXPECTATION FAIL, THE BILL PROVIDES FOR THE PRESIDENT LAYING THE MATTER
BEFORE CONGRESS FOR WHATEVER LEGISLATION SEEMS NECESSARY TO PRESERVE
THE HEALTH AND SAFETY OF THE NATION IN THE CRISIS."  THE REFERENCE IS
TO SEC. 210 OF THE TAFT-HARTLEY ACT, WHICH PROVIDES THAT IF THE
INJUNCTION IS DISCHARGED, "THE PRESIDENT SHALL SUBMIT TO THE CONGRESS A
FULL AND COMPREHENSIVE REPORT OF THE PROCEEDINGS, INCLUDING THE
FINDINGS OF THE BOARD OF INQUIRY AND THE BALLOT TAKEN BY THE NATIONAL
LABOR RELATIONS BOARD, TOGETHER WITH SUCH RECOMMENDATIONS AS HE MAY SEE
FIT TO MAKE FOR CONSIDERATION AND APPROPRIATE ACTION." 

FN4  IT IS CLEAR THAT THE NATIONAL EMERGENCY PROVISIONS WERE NOT
MEANT TO COVER LOCAL STRIKES SUCH AS THOSE INVOLVED IN THE CASES NOW
BEFORE US.  SEE S. REP. NO. 105, 80TH CONG., 1ST SESS. 14: "WHILE THE
COMMITTEE IS OF THE OPINION THAT IN MOST LABOR DISPUTES THE ROLE OF THE
FEDERAL GOVERNMENT SHOULD BE LIMITED TO MEDIATION, WE RECOGNIZE THAT
THE REPERCUSSIONS FROM STOPPAGES IN CERTAIN INDUSTRIES ARE OCCASIONALLY
SO GRAVE THAT THE NATIONAL HEALTH AND SAFETY IS IMPERILED.  AN EXAMPLE
IS THE RECENT COAL STRIKE IN WHICH DEFIANCE OF THE PRESIDENT BY THE
UNITED MINE WORKERS UNION COMPELLED THE ATTORNEY GENERAL TO RESORT TO
INJUNCTIVE RELIEF IN THE COURTS.  THE COMMITTEE BELIEVES THAT ONLY IN
NATIONAL EMERGENCIES OF THIS CHARACTER SHOULD THE FEDERAL GOVERNMENT BE
ARMED WITH SUCH POWER." 

THERE MIGHT OF COURSE BE A CONFLICT IF THE WISCONSIN ACT WERE HELD
APPLICABLE BY HER COURTS TO A THREATENED STRIKE WHICH WAS ONLY A PART
OF A NATION-WIDE UTILITY DISPUTE TO WHICH THE PROVISIONS OF TITLE II
HAD BEEN APPLIED.  BUT OUR TASK IS TO DECIDE THE CASE BEFORE US AND NOT
TO CONJURE UP DIFFICULTIES THAT MAY NEVER ARISE.  SEE ALLEN-BRADLEY
LOCAL V. WISCONSIN BOARD, 315 U.S. 740, 746. 

THE WISCONSIN STATUTE IS NOT IN CONFLICT WITH THE PROVISIONS OF TITLE
II OF THE TAFT-HARTLEY ACT CREATING A MEDIATION AND CONCILIATION
SERVICE.  THE FEDERAL ACT TAKES ACCOUNT OF STATE MEDIATION FACILITIES,
AND THE FEDERAL OFFICIALS ARE DIRECTED "TO AVOID ATTEMPTING TO MEDIATE
DISPUTES WHICH WOULD HAVE ONLY A MINOR EFFECT ON INTERSTATE COMMERCE IF
STATE OR OTHER CONCILIATION SERVICES ARE AVAILABLE TO THE PARTIES." 
SEC. 203(B). 

FN5  A FURTHER ARGUMENT IS BASED UPON SEC. 111.56 OF THE WISCONSIN
ACT WHICH REQUIRES THAT THE STATUS QUO AS TO TERMS OF EMPLOYMENT BE
MAINTAINED DURING CONCILIATION AND ARBITRATION.  THE TAFT-HARTLEY ACT
REQUIRES THE PARTIES TO CONTINUE TERMS OF AN EXISTING CONTRACT FOR ONLY
60 DAYS AFTER NOTICE OF TERMINATION HAS BEEN GIVEN OR UNTIL THE
EXPIRATION DATE OF THE CONTRACT, WHICHEVER IS LATER.  SEC. 8(D)(4). 
THE ADDITIONAL RESTRICTION OF THE WISCONSIN ACT IS IMPOSED IN ORDER TO
ASSURE THE EFFECTIVENESS OF THE ARBITRATION SYSTEM AND PRESENTS NO
PROBLEM OF CONFLICT IN ADMINISTRATION OF THE TWO STATUTES.  THE ONLY
OBJECTIONS TO THE STATUS QUO PROVISIONS ARE THE ARGUMENTS AGAINST THE
INCOMPATIBILITY OF THE FEDERAL ACT AND ANY SYSTEM OF COMPULSORY
ARBITRATION.  THESE HAVE BEEN DISCUSSED IN THE TEXT. 

TWO ADDITIONAL ARGUMENTS ARE BASED UPON HYPOTHETICAL CONFLICTS NOT
RAISED BY THE PRESENT CASES.  SECTION 111.52 OF THE WISCONSIN ACT
REQUIRES THAT THE PARTIES "EXERT EVERY REASONABLE EFFORT" IN ORDER TO
SETTLE THE LABOR DISPUTE.  IT IS CLAIMED THAT THIS LANGUAGE MAY BE
CONSTRUED TO REQUIRE THE PARTIES TO MAKE CONCESSIONS DURING THE
BARGAINING PROCESS - SOMETHING WHICH SEC. 8(D) OF THE TAFT-HARTLEY ACT
SAYS THEY DO NOT HAVE TO DO.  THE SECOND ARGUMENT IS THAT, FROM SEC.
111.57 OF THE WISCONSIN ACT, IT APPEARS THAT ARBITRATION MIGHT BE
REQUIRED WHERE NEGOTIATIONS WERE UNDERWAY TO AMEND AN EXISTING
CONTRACT.  UNDER SEC. 8(D) OF THE TAFT-HARTLEY ACT, THERE IS NO DUTY TO
BARGAIN CONCERNING AMENDMENT OF A CONTRACT STILL IN EFFECT. IT IS A
SUFFICIENT ANSWER TO THESE CONTENTIONS TO NOTE THE BROAD SEPARABILITY
PROVISION IN SEC. 111.65 OF THE WISCONSIN ACT, AND REPEAT WHAT WE SAID
IN ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740, 746:  "WE DEAL
... NOT WITH THE THEORETICAL DISPUTES BUT WITH CONCRETE AND SPECIFIC
ISSUES RAISED BY ACTUAL CASES.  ...  NOR WILL WE ASSUME IN ADVANCE THAT
A STATE WILL SO CONSTRUE ITS LAW AS TO BRING IT INTO CONFLICT WITH THE
FEDERAL CONSTITUTION OR AN ACT OF CONGRESS." 
..END :























ST. JOHN V. WISCONSIN BOARD, 340 U.S. 411 


NO. 302.  ARGUED JANUARY 9-10, 1951.  - DECIDED FEBRUARY 26, 1951.  - 90
F.SUPP.  347, JUDGMENT VACATED. 


APPELLANTS SUED IN A WISCONSIN STATE COURT FOR A DECLARATORY JUDGMENT
THAT THE WISCONSIN PUBLIC UTILITY ANTI-STRIKE LAW CONTRAVENED THE DUE
PROCESS CLAUSE OF THE FEDERAL CONSTITUTION AND WAS INVALID AS IN
CONFLICT WITH FEDERAL LABOR LEGISLATION.  THE STATE TRIAL COURT DECIDED
AGAINST APPELLANTS ON ALL ISSUES.  ON APPEAL, THE WISCONSIN SUPREME
COURT AFFIRMED, BUT ON THE GROUND THAT A DECISION ON THE FEDERAL
CONSTITUTIONAL QUESTIONS WOULD BE PREMATURE IN THE ABSENCE OF A
CONCRETE FACTUAL RECORD.  APPELLANTS DID NOT PETITION THIS COURT FOR
CERTIORARI.  SUBSEQUENTLY, WHEN A STRIKE WAS IN PROGRESS, APPELLANTS
SUED IN A FEDERAL DISTRICT COURT FOR DECLARATORY AND INJUNCTIVE RELIEF
HOLDING THE WISCONSIN ACT INVALID AS IN CONFLICT WITH FEDERAL LABOR
LEGISLATION.  THE FEDERAL DISTRICT COURT HELD THAT THE SUIT WAS BARRED
BY THE DOCTRINE OF RES JUDICATA.  IN ANOTHER SUIT INVOLVING THE SAME
PARTIES AND PRESENTING THE SAME ISSUES, HOWEVER, THE STATE SUPREME
COURT SUSTAINED THE CONSTITUTIONALITY OF THE WISCONSIN ACT; AND ITS
JUDGMENT IS THIS DAY REVERSED BY THIS COURT, ANTE, P. 383.  HELD: 

1.  THE DISTRICT COURT'S INTERPRETATION OF THE STATE LAW AS TO RES
JUDICATA IN THIS PARTICULAR CASE WAS ERRONEOUS.  P. 414. 

2.  THIS COURT HAVING DECLARED THE WISCONSIN LAW TO BE INVALID UNDER
THE FEDERAL CONSTITUTION, ANTE, P. 383, A FEDERAL COURT JUDGMENT
RESTRAINING ITS ENFORCEMENT AS PRAYED IN THIS SUIT IS NEITHER NECESSARY
NOR APPROPRIATE.  PP. 414-415. 

ST. JOHN ET AL. V. WISCONSIN EMPLOYMENT RELATIONS BOARD ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF WISCONSIN. 

THE CASE IS STATED IN THE OPINION.  THE JUDGMENT BELOW IS VACATED AND
CAUSE REMANDED, P. 415. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE PARTIES TO THIS CASE ARE THE SAME GAS WORKERS' UNION, MANY OF THE
SAME OFFICERS OF THAT UNION, THE SAME GAS COMPANIES AND THE WISCONSIN
EMPLOYMENT RELATIONS BOARD INVOLVED IN NO. 438, DECIDED THIS DAY, ANTE,
P. 383.  THE INSTANT PROCEEDING BEGAN WHEN, AT THE TIME OF THE STRIKE
DESCRIBED IN NO. 438, APPELLANT GAS WORKERS FILED SUIT IN A FEDERAL
DISTRICT COURT AGAINST THE WISCONSIN EMPLOYMENT RELATIONS BOARD AND THE
GAS COMPANY FOR DECLARATORY AND INJUNCTIVE RELIEF TO THE END THAT THE
WISCONSIN PUBLIC UTILITY ANTI-STRIKE LAW BE ADJUDGED INVALID FOR THE
REASONS SUCCESSFULLY ADVANCED IN NO. 438. 

THE DISTRICT COURT OF THREE JUDGES, CONVENED UNDER 28 U.S.C. SEC.
2281, DID NOT REACH THE SUBSTANTIVE ISSUES, BUT RELIED ON PRINCIPLES OF
RES JUDICATA, HOLDING THAT A PRIOR STATE COURT JUDGMENT TO WHICH
APPELLANTS WERE PARTY CONCLUSIVELY BARRED THEM FROM RAISING ANY ISSUES
PERTAINING TO THE CONSTITUTIONALITY OF THE WISCONSIN ACT.  IN THAT
PRIOR STATE COURT ACTION, BROUGHT TO TEST THE STATUTE BEFORE ANY STRIKE
HAD BEEN THREATENED, APPELLANTS SOUGHT A DECLARATORY JUDGMENT THAT THE
WISCONSIN ACT CONTRAVENED THE STATE CONSTITUTION AND THE FEDERAL DUE
PROCESS CLAUSE AND WAS IN CONFLICT WITH FEDERAL LABOR LEGISLATION. 
EXCEPT FOR THE QUESTION OF UNDUE DELEGATION OF POWER UNDER THE STATE
CONSTITUTION, THE ISSUES SOUGHT TO BE RAISED IN THE STATE DECLARATORY
PROCEEDING WERE THE SAME AS THOSE RAISED IN NO. 438, ANTE, P. 383, AND
IN THE INSTANT PROCEEDING.  IN THE PRIOR STATE COURT ACTION, THE
CIRCUIT COURT ENTERED JUDGMENT AGAINST APPELLANTS ON THE MERITS ON ALL
ISSUES.  ON APPEAL, THE WISCONSIN SUPREME COURT AFFIRMED, BUT REACHED
THE MERITS ONLY IN RESPECT TO THE DELEGATION-OF-POWER ISSUE.  AS TO THE
ISSUES COMMON TO THAT CASE, THE INSTANT CASE AND NO. 438, THE STATE
SUPREME COURT HELD THAT A DECISION ON THE CONSTITUTIONAL QUESTIONS
PRESENTED WOULD BE PREMATURE IN THE ABSENCE OF A CONCRETE FACTUAL
RECORD, AND THAT COURTS SHOULD NOT DECIDE CONSTITUTIONAL ISSUES IN THE
ABSTRACT OR AS HYPOTHETICAL QUESTIONS.  UNITED GAS, COKE & CHEMICAL
WORKERS OF AMERICA, LOCAL 18, C.I.O. V. WISCONSIN EMPLOYMENT RELATIONS
BOARD, 255 WIS. 154, 38 N.W.2D 692(1949).  CERTIORARI TO THAT DECISION
WAS NOT SOUGHT IN THIS COURT, APPELLANTS CONTENDING THAT SUCH A STEP
WOULD HAVE BEEN FUTILE IN VIEW OF THE ADEQUACY OF THE STATE GROUNDS
SUPPORTING THE WISCONSIN COURT'S REFUSAL TO ADJUDICATE THE ISSUES
PRESENTED. 

FOLLOWING THIS ABORTIVE ATTEMPT TO SECURE A FINAL ADJUDICATION OF THE
FEDERAL QUESTIONS, THERE OCCURRED A STRIKE AND A STATE CIRCUIT COURT
ISSUED A RESTRAINING ORDER, AS DESCRIBED IN THE OPINION IN NO. 438,
ANTE, P. 383.  IN THE RESULTING CONTEMPT PROCEEDING, BEFORE US IN NO.
438, APPELLANTS ATTACK THE VALIDITY OF THE WISCONSIN ACT, RAISING THE
DUE PROCESS AND COMMERCE CLAUSE QUESTIONS.  APPELLEES URGED IN THAT
CASE, AS THEY DO IN THIS CASE, THAT THE PRIOR STATE DECLARATORY
JUDGMENT PROCEEDING BARRED APPELLANTS' FURTHER ATTACK UPON THE ACT
UNDER THE DOCTRINE OF RES JUDICATA.  APPELLEES REASON THAT SINCE THE
STATE CIRCUIT COURT JUDGMENT IN THE PRIOR ACTION WENT AGAINST
APPELLANTS ON THE MERITS AND SINCE THE WISCONSIN SUPREME COURT ORDERED
THAT JUDGMENT "AFFIRMED" THE JUDGMENT BARRED FURTHER ATTACK ON THE
STATUTE BY APPELLANTS WITHOUT REGARD TO WHAT THE WISCONSIN SUPREME
COURT MIGHT HAVE SAID IN ITS OPINION.  THE FEDERAL DISTRICT COURT
ADOPTED THIS LINE OF REASONING AS TO RES JUDICATA AND HELD, ONE JUDGE
DISSENTING, THAT APPELLANTS ARE BARRED FROM ATTACKING THE WISCONSIN
PUBLIC UTILITY ANTI-STRIKE LAW.  90 F.SUPP.  347(1950).  THE CASE IS
PROPERLY HERE ON APPEAL.  28 U.S.C. SEC. 1253. 

WE NEED NOT LINGER OVER THE PROPRIETY OF INVOKING THE DOCTRINE OF RES
JUDICATA IN THIS TYPE OF CASE, FOR WE HAVE A DIRECT HOLDING OF THE
WISCONSIN SUPREME COURT TO SHOW US THAT THE DISTRICT COURT'S
INTERPRETATION OF THE STATE LAW AS TO RES JUDICATA IN THIS PARTICULAR
CASE WAS ERRONEOUS.  THE STATE CIRCUIT COURT, IN THE CONTEMPT
PROCEEDINGS BEFORE THIS COURT IN NO. 438, ADOPTED THE SAME THEORY OF
RES JUDICATA AS DID THE DISTRICT COURT.  THAT THEORY WAS URGED UPON THE
WISCONSIN SUPREME COURT ON APPEAL.  YET THE HIGHEST STATE COURT DID NOT
HESITATE IN REACHING AND DECIDING ON THE MERITS THE VERY ISSUES WHICH
THE STATE CIRCUIT COURT IN THAT CASE AND THE DISTRICT COURT BELOW HELD
COULD NOT BE RAISED BY APPELLANTS.  WISCONSIN EMPLOYMENT RELATIONS
BOARD V. MILWAUKEE GAS LIGHT CO., 258 WIS. 1, 44 N.W.2D 547(1950). 
THIS IS THE DECISION WHICH WE REVERSED THIS DAY IN NO. 438, ANTE, P.
383.  UNDER SUCH CIRCUMSTANCES, JUSTICE REQUIRES THAT THE JUDGMENT OF
THE COURT BELOW BARRING APPELLANTS FROM ATTACKING THE VALIDITY OF THE
WISCONSIN PUBLIC UTILITY ANTI-STRIKE LAW BE VACATED. 

BUT THERE REMAINS THE QUESTION AS TO WHETHER APPELLANTS ARE ENTITLED
TO A FEDERAL COURT JUDGMENT RESTRAINING ENFORCEMENT OF THE WISCONSIN
ACT AS PRAYED.  APPELLANTS SEEK ONLY INJUNCTIVE AND DECLARATORY RELIEF
LOOKING TO THE FUTURE.  IN VIEW OF TODAY'S DECISIONS IN NOS. 329 AND
438, ANTE, P. 383, THE LATTER CASE INVOLVING THE VERY PARTIES TO THIS
ACTION, "WE FIND NO GROUND FOR SUPPOSING THAT THE INTERVENTION OF A
FEDERAL COURT, IN ORDER TO SECURE (APPELLANTS') CONSTITUTIONAL RIGHTS,
WILL BE EITHER NECESSARY OR APPROPRIATE."  DOUGLAS V. JEANNETTE, 319
U.S. 157, 165(1943).  FOR THIS REASON, THE JUDGMENT BELOW IS VACATED
AND THE CASE REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO
DISMISS THE COMPLAINT.  IT IS SO ORDERED. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON, AND MR. JUSTICE MINTON
AGREE THAT THE JUDGMENT OF THE STATE COURT WAS NOT RES JUDICATA, BUT
INSOFAR AS VACATING THE JUDGMENT BELOW DERIVES FROM THE DECISIONS IN
NOS. 329 AND 438 THEY DISSENT FOR THE REASONS SET FORTH IN THEIR
DISSENTING OPINION, ANTE, P. 399. 
..END :








BUS EMPLOYEES V. WISCONSIN BOARD, 340 U.S. 416 


NO. 330.  ARGUED JANUARY 9-10, 1951.  - DECIDED FEBRUARY 26, 1951.  -
257 WIS. 53, 42 N.W.2D 477, JUDGMENT VACATED. 


THIS IS A PROCEEDING TO REVIEW A JUDGMENT OF A WISCONSIN STATE COURT
SUSTAINING AN ARBITRATORS' AWARD UNDER THE WISCONSIN PUBLIC UTILITY
ANTI-STRIKE LAW.  THE AWARD WAS FOR ONE YEAR ONLY AND THAT TIME HAS
ELAPSED.  HELD: 

1.  THERE BEING NO SUBJECT MATTER UPON WHICH THE JUDGMENT OF THIS
COURT CAN OPERATE, THE CAUSE IS MOOT.  PP. 417-418. 

2.  WHETHER OR NOT IT IS THE PRACTICE OF THE WISCONSIN COURTS TO
DECIDE QUESTIONS OF IMPORTANCE WHERE A CASE HAS BECOME MOOT, THIS COURT
IS WITHOUT POWER TO DECIDE MOOT QUESTIONS.  P. 418. 

AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH
EMPLOYEES OF AMERICA, DIVISION 998, ET AL. V. WISCONSIN EMPLOYMENT
RELATIONS BOARD ET AL. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

THE CASE IS STATED IN THE OPINION.  JUDGMENT BELOW VACATED AND CAUSE
REMANDED, P. 418. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE PARTIES TO THIS CASE ARE THE SAME TRANSIT WORKERS, THE SAME
TRANSIT COMPANY, AND THE WISCONSIN EMPLOYMENT RELATIONS BOARD BEFORE
THE COURT IN NO. 329, DECIDED THIS DAY, ANTE, P. 383.  THIS ACTION
ARISES OUT OF THE SAME THREATENED STRIKE DISCUSSED IN THAT CASE.  AFTER
A RESTRAINING ORDER HAD LED TO POSTPONEMENT OF THE STRIKE, THE
WISCONSIN BOARD APPOINTED ARBITRATORS TO "HEAR AND DETERMINE" THE
DISPUTE IN ACCORDANCE WITH THE TERMS OF THE WISCONSIN PUBLIC UTILITY
ANTI-STRIKE LAW.  WIS. STAT., 1949, SEC. 111.55.  UPON THE FILING OF
THE ARBITRATORS' AWARD, PETITIONERS FILED AN ACTION IN A STATE CIRCUIT
COURT TO REVIEW THAT AWARD.  ID., SEC. 111.60.  THAT COURT AFFIRMED THE
AWARD AND THE WISCONSIN SUPREME COURT AFFIRMED, 257 WIS. 53, 42 N.W.2D
477(1950).  WE GRANTED CERTIORARI IN THIS CASE TOGETHER WITH NO. 329,
340 U.S. 874(1950). 

IN THE COURTS BELOW AND IN THIS COURT, PETITIONERS ATTACK THE
ARBITRATION AWARD ON THE SAME GROUNDS URGED AGAINST THE WISCONSIN ACT
AS A WHOLE IN NO. 329, AND, IN ADDITION, RAISE ISSUES PECULIAR TO THE
ARBITRATION PHASE OF THAT ACT.  BUT WE DO NOT REACH THESE ISSUES SINCE
IT IS CLEAR THAT THIS CASE HAS BECOME MOOT* . 

*IT HAS ALSO BEEN ARGUED THAT NO. 329 AND NO. 438 ARE MOOT BY REASON
OF THE SETTLEMENT OF THE IMMEDIATE DISPUTE WHICH LED TO THE STRIKE
ACTION IN EACH CASE.  THE INJUNCTION BEFORE US IN NO. 329 IS
"PERPETUAL" BY ITS TERMS SO THAT THE ACTION DOES NOT BECOME MOOT EVEN
THOUGH THE DECREE BE OBEYED.  J.I. CASE CO. V. LABOR BOARD, 321 U.S.
332, 334(1944); FEDERAL TRADE COMM'N V. GOOD-YEAR TIRE & RUBBER CO.,
304 U.S. 257, 260(1938), AND CASES CITED THEREIN.  AS TO NO. 438, THE
JUDGMENT BELOW IMPOSES FINES UPON PETITIONERS.  NO QUESTION OF MOOTNESS
CAN BE RAISED SO LONG AS ENFORCEMENT OF THAT JUDGMENT IS SOUGHT. 

THE ARBITRATION AWARD BECAME EFFECTIVE ON APRIL 11, 1949.  UNDER THE
WISCONSIN ACT, THAT AWARD "SHALL CONTINUE EFFECTIVE FOR ONE YEAR FROM
THAT DATE," UNLESS SOONER TERMINATED BY AGREEMENT OF THE PARTIES.  WIS.
STAT., 1949, SEC. 111.59.  WE ARE INFORMED THAT THIS AWARD WAS
SUPERSEDED BY AGREEMENT, AND, IN ANY EVENT, THE ONE-YEAR PERIOD HAS
ELAPSED.  THERE BEING NO SUBJECT MATTER UPON WHICH THE JUDGMENT OF THIS
COURT CAN OPERATE, THE CAUSE IS MOOT. 

IT IS ARGUED THAT THE WISCONSIN COURTS HAVE ADOPTED A PRACTICE OF
DECIDING QUESTIONS OF IMPORTANCE EVEN THOUGH THE CASE HAS BECOME MOOT,
AND WE ARE URGED TO FOLLOW THAT SAME PRACTICE.  BUT WHATEVER THE
PRACTICE IN WISCONSIN COURTS, "A FEDERAL COURT IS WITHOUT POWER TO
DECIDE MOOT QUESTIONS OR TO GIVE ADVISORY OPINIONS WHICH CANNOT AFFECT
THE RIGHTS OF THE LITIGANTS IN THE CASE BEFORE IT.  UNITED STATES V.
ALASKA S.S. CO., 253 U.S. 113, 115-16, AND CASES CITED; UNITED STATES
V. HAMBURG-AMERICAN CO., 239 U.S. 466, 475-77."  ST. PIERRE V. UNITED
STATES, 319 U.S. 41, 42(1943). 

IT APPEARING THAT THE CAUSE HAS BECOME MOOT, THE JUDGMENT OF THE
SUPREME COURT OF WISCONSIN IS VACATED WITHOUT COSTS AND THE CAUSE IS
REMANDED FOR SUCH PROCEEDINGS AS BY THAT COURT MAY BE DEEMED
APPROPRIATE.  IT IS SO ORDERED. 
..END :















UNITED STATES V. ROCK ISLAND CO., 340 U.S. 419 


NO. 25.  ARGUED NOVEMBER 7, 1950.  - DECIDED FEBRUARY 26, 1951.  - 90
F.SUPP.  516, REVERSED. 


1.  THE INTERSTATE COMMERCE COMMISSION AUTHORIZED A RAILROAD'S MOTOR
CARRIER AFFILIATE TO ACQUIRE TWO OTHER MOTOR CARRIERS.  THE FIRST
ACQUISITION WAS APPROVED BY THE COMMISSION UNDER SEC. 213(NOW SEC. 5)
OF THE INTERSTATE COMMERCE ACT, AND A CERTIFICATE OF CONVENIENCE AND
NECESSITY WAS ISSUED UNDER SEC. 207.  THE CERTIFICATE CONTAINED THE
CONDITION THAT THE COMMISSION MIGHT IMPOSE SUCH FURTHER RESTRICTIONS AS
MAY BE NECESSARY TO INSURE THAT THE SERVICE SHOULD BE AUXILIARY OR
SUPPLEMENTARY TO THE TRAIN SERVICE OF THE RAILROAD.  THE SECOND
ACQUISITION WAS APPROVED UNDER SEC. 5 OF THE ACT BY A REPORT AND ORDER
WHICH DID NOT CONTAIN THIS CONDITION, BUT NO CERTIFICATE OF CONVENIENCE
AND NECESSITY HAD BEEN ISSUED UNDER SEC. 207.  HELD:  THE COMMISSION
HAD POWER, IN A SUBSEQUENT PROCEEDING NOT UNDER SEC. 212, TO MODIFY THE
CERTIFICATE COVERING OPERATIONS UNDER THE FIRST ACQUISITION, AND TO
IMPOSE LIKE CONDITIONS ON THE CERTIFICATE TO BE GRANTED IN RESPECT OF
THE SECOND ACQUISITION, SO AS TO CONFINE THE MOTOR CARRIER OPERATIONS
TO SERVICE AUXILIARY TO, AND SUPPLEMENTAL OF, RAIL SERVICE.  PP. 422
436, 444-448. 

(A)  THE COMMISSION HAS POWER AT THE TIME OF ITS APPROVAL OF AN
APPLICATION TO LIMIT THE AUTHORITY TO BE GRANTED BY CERTIFICATES OF
CONVENIENCE AND NECESSITY FOR THE OPERATION OF MOTOR CARRIERS, WHETHER
THE CERTIFICATE IS ISSUED ON AN ORIGINAL APPLICATION UNDER SEC. 207 OR
AFTER ACQUISITION UNDER SEC. 5 OF THE INTERSTATE COMMERCE ACT.  P.
430. 

(B)  AT THE TIME OF ISSUANCE OF A CERTIFICATE, IF THE COMMISSION
REASONABLY DEEMS THE RESTRICTION USEFUL IN PROTECTING COMPETITION, OR
FOR OTHER STATUTORY PURPOSES, THE COMMISSION MAY REQUIRE A RAILROAD
AFFILIATED MOTOR CARRIER TO PERFORM ONLY THOSE SERVICES THAT ARE
AUXILIARY AND SUPPLEMENTAL TO THE RAIL SERVICE.  PP. 430-431. 

(C)  THE RESTRICTION OF A RAILROAD MOTOR-CARRIER AFFILIATE TO
OPERATIONS WHICH ARE AUXILIARY AND SUPPLEMENTAL TO RAIL SERVICE IS A
LOGICAL METHOD TO INSURE THE MAXIMUM DEVELOPMENT OF THE TWO
TRANSPORTATION AGENCIES - RAIL AND MOTOR - AS COORDINATE TRANSPORTATION
SERVICES IN ACCORDANCE WITH THE DECLARATION OF POLICY IN THE MOTOR
CARRIER ACT OF 1935 AND WITH THE NATIONAL TRANSPORTATION POLICY.  P.
431. 

(D)  SPECIFIC STATUTORY AUTHORITY FOR SUCH RESTRICTION IS FOUND IN
THE REQUIREMENTS OF THE PROVISO IN SEC. 213(A) OF THE MOTOR CARRIER ACT
OF 1935 AND SEC. 5 OF THE INTERSTATE COMMERCE ACT AS AMENDED IN 1940. 
PP. 431, 436. 

(E)  SINCE COMPETITION, PUBLIC INTEREST IN THE PRESERVATION OF THE
INHERENT ADVANTAGES OF RAILS AND MOTORS, AND USE OF MOTOR SERVICE BY
RAILROADS IN THEIR OPERATIONS, ARE THE BASIS FOR ALLOWING ACQUISITIONS
OF MOTOR ROUTES BY RAILROADS UNDER THE NATIONAL TRANSPORTATION POLICY,
IT IS CONSONANT WITH THAT POLICY TO RESERVE THE RIGHT TO MAKE FURTHER
LIMITATIONS, RESTRICTIONS OR MODIFICATIONS TO INSURE THAT THE SERVICE
REMAIN AUXILIARY OR SUPPLEMENTAL.  PP. 434-435. 

(F)  SUCH RESERVATION OF POWER IN THE COMMISSION TO MODIFY THE
CERTIFICATE DOES NOT OFFEND AGAINST THE PROVISION OF SEC. 212 THAT A
CERTIFICATE "SHALL REMAIN IN EFFECT UNTIL SUSPENDED OR TERMINATED"
UNDER THAT SECTION.  P. 435. 

(G)  THE SPECIFIC REQUIREMENT OF THE NATIONAL TRANSPORTATION POLICY
THAT THE INHERENT ADVANTAGES OF ALL MODES OF TRANSPORTATION BE
RETAINED, OR OF SEC. 5 THAT ACQUISITION OF MOTOR ROUTES BY RAILROADS
SHALL REQUIRE SPECIAL FINDINGS AND MAY BE SUBJECT TO SPECIAL
CONDITIONS, IS NOT OVERRIDDEN BY THE GENERAL PROVISIONS OF SECS. 208,
216(C) AND 217(A).  PP. 435-436. 

2.  THE COMMISSION ORDERED THAT THE CERTIFICATE COVERING THE FIRST
ACQUISITION BE MODIFIED SO THAT FUTURE OPERATIONS THEREUNDER WOULD BE
SUBJECT IN SUBSTANCE TO THE FOLLOWING CONDITIONS:  (1) THE SERVICE OF
THE MOTOR CARRIER SHALL BE LIMITED TO SERVICE WHICH IS AUXILIARY TO, OR
SUPPLEMENTAL OF, TRAIN SERVICE OF THE RAILROAD; (2) THE MOTOR CARRIER
SHALL NOT RENDER ANY SERVICE TO OR FROM ANY POINT NOT ON A RAIL LINE OF
THE RAILROAD; (3) NO SHIPMENTS SHALL BE TRANSPORTED BY THE MOTOR
CARRIER BETWEEN ANY OF THE DESIGNATED "KEY POINTS," OR THROUGH, OR TO,
OR FROM, MORE THAN ONE OF SAID POINTS; (4) ALL CONTRACTS BETWEEN THE
MOTOR CARRIER AND THE RAILROAD SHALL BE SUBJECT TO REVISION BY THE
COMMISSION; (5) THE COMMISSION MAY IMPOSE SUCH FURTHER CONDITIONS AS IT
MAY FIND TO BE NECESSARY TO INSURE THAT THE SERVICE SHALL BE AUXILIARY
OR SUPPLEMENTAL TO RAIL SERVICE.  HELD:  THE NEW CONDITIONS ARE WITHIN
THE LIMITS COVERED BY THE RESERVATION OF POWER IN THE CERTIFICATE TO
IMPOSE SUCH FURTHER LIMITATIONS AS MIGHT BE FOUND NECESSARY "TO INSURE
THAT THE SERVICE SHALL BE AUXILIARY OR SUPPLEMENTARY TO THE TRAIN
SERVICE" OF THE RAILROAD.  PP. 436-444. 

(A)  SUCH ADDED CONDITIONS ARE NOT CHANGES IN OR REVOCATIONS OF A
CERTIFICATE IN WHOLE OR IN PART, BUT A CARRYING OUT OF THE RESERVATION
IN THE CERTIFICATE.  UNITED STATES V. SEATRAIN LINES, 329 U.S. 424,
DISTINGUISHED.  PP. 442-443. 

(B)  THE MEANING OF AUXILIARY AND SUPPLEMENTAL IS NOT LIMITED BY THE
COMMISSION'S PRACTICE AT ANY PARTICULAR TIME, BUT EMBRACES SUCH
REQUIREMENTS AS MAY FAIRLY BE SAID TO FALL WITHIN THE MEANING WHICH THE
COMMISSION HAS GIVEN TO THE TERMS.  P. 443. 

3.  THE COMMISSION HAD THE POWER ALSO TO PLACE IN THE CERTIFICATE TO
BE ISSUED IN CONNECTION WITH THE SECOND ACQUISITION THE MODIFIED
CONDITIONS OF THE CERTIFICATE COVERING THE FIRST ACQUISITION, SINCE THE
ORDER APPROVING THE SECOND ACQUISITION WAS NOT A FINAL ORDER.  PP. 444
448. 

(A)  THE CERTIFICATE IS THE FINAL ACT OR ORDER THAT VALIDATES THE
OPERATION, AND UNTIL ITS FORM AND CONTENTS ARE FIXED BY DELIVERY TO THE
APPLICANT, THE POWER TO FRAME IT IN ACCORDANCE WITH STATUTORY
DIRECTIONS PERSISTS.  P. 448. 

4.  IN VIEW OF THE NATIONAL TRANSPORTATION POLICY AND SEC. 5 OF THE
INTERSTATE COMMERCE ACT, APPROVAL OF THE ACQUISITION OF A MOTOR CARRIER
BY A RAILROAD MAY BE CONDITIONED BY THE COMMISSION ON THE PURCHASER'S
WILLINGNESS TO ACCEPT A NARROWER CERTIFICATE THAN THAT POSSESSED BY THE
SELLER.  PP. 448-449. 

5.  BY THE COMMISSION'S MODIFICATION OF THE CERTIFICATE OF THE
RAILROAD'S MOTOR-CARRIER AFFILIATE, TO INSURE THAT ITS OPERATIONS WOULD
BE AUXILIARY AND SUPPLEMENTAL TO RAIL SERVICE, THE MOTOR CARRIER WAS
NOT DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW.  P. 449. 

UNITED STATES ET AL. V. ROCK ISLAND MOTOR TRANSIT CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

A THREE-JUDGE DISTRICT COURT SET ASIDE AND PERMANENTLY ENJOINED
ENFORCEMENT OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.  90
F.SUPP.  516.  ON APPEAL TO THIS COURT, REVERSED, P. 449. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

QUESTIONS OF THE POWER OF THE INTERSTATE COMMERCE COMMISSION TO
TIGHTEN THE RESTRICTIONS ON OPERATIONS OF A RAILROAD'S MOTOR-CARRIER
AFFILIATE ARE RAISED BY THIS APPEAL.  IN THE COMMISSION'S VIEW THE
OPERATIONS MUST BE MODIFIED IN ORDER TO MAKE THEM TRULY AUXILIARY TO OR
SUPPLEMENTAL OF THE RAIL SERVICE.  THEY ARE CONDUCTED (1) UNDER A
CERTIFICATE OF CONVENIENCE AND NECESSITY ISSUED IN 1941 UNDER SEC. 207
OF THE INTERSTATE COMMERCE ACT, AND (2) UNDER AN ORDER OF 1944
APPROVING THE ACQUISITION OF ANOTHER MOTOR CARRIER.  THE CERTIFICATE
CONTAINS THE CONDITION THAT THE COMMISSION MIGHT IMPOSE OTHER TERMS TO
RESTRICT THE HOLDER'S OPERATION TO SERVICE WHICH IS AUXILIARY TO OR
SUPPLEMENTAL OF RAIL SERVICE.  THE ORDER CONTAINS NEITHER THIS
CONDITION NOR ANY OTHER RELATING TO THE SPECIFIC OPERATING RIGHTS OF
THE CARRIER. 

THE ISSUES INVOLVE A BASIC POWER OF THE COMMISSION TO REGULATE THE
OPERATIONS OF MOTOR CARRIERS AFFILIATED WITH RAILROADS SO AS TO ASSURE
THAT AT ALL TIMES THE MOTOR OPERATIONS SHALL BE CONSONANT WITH THE
NATIONAL TRANSPORTATION POLICY, 54 STAT. 899.  THE COMMISSION HAS
DECIDED THAT THAT POLICY REQUIRES THE MOTOR OPERATIONS OF RAILROADS AND
THEIR AFFILIATES TO BE AUXILIARY TO AND SUPPLEMENTAL OF TRAIN SERVICE. 
THIS RAISES QUESTIONS AS TO HOW THE PLANNED AUXILIARY AND SUPPLEMENTAL
SERVICE IS TO BE ACHIEVED.  DIFFERENCES ALSO EXIST AS TO WHAT PHASES OF
MOTOR-CARRIER OPERATIONS ARE AUXILIARY TO AND SUPPLEMENTAL OF RAIL OR
TRAIN SERVICE. 

THE ROCK ISLAND MOTOR TRANSIT COMPANY, A WHOLLY-OWNED CORPORATE
SUBSIDIARY OF THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY AND
ITS PREDECESSORS, IS A COMMON CARRIER BY MOTOR VEHICLE ENGAGED IN
TRANSPORTING PROPERTY IN INTER- AND INTRASTATE COMMERCE, EXCLUSIVELY,
FOR ALL PRACTICAL PURPOSES, ALONG THE RAIL LINES OF ITS PARENT
CORPORATION IN ARKANSAS, ILLINOIS, INDIANA, IOWA, MINNESOTA, MISSOURI,
NEBRASKA, TENNESSEE, TEXAS AND KANSAS.  MANY OF TRANSIT'S OPERATIONS
ALONGSIDE ITS PARENT ARE IN DIFFERENT LOCALITIES AND UNDER OTHER I.C.C.
AUTHORITIES THAN THE CERTIFICATE AND ORDER HERE INVOLVED. 

THIS APPEAL DEALS WITH ADDITIONAL OPERATING RESTRICTIONS PLACED
SUBSEQUENT TO THE COMMISSION'S FORMAL APPROVAL OF TRANSIT'S PURCHASE
AND OPERATION, UPON TWO OF TRANSIT'S ACQUISITIONS.  THE FIRST IS A
SEGMENT OF THE SO-CALLED WHITE LINE PURCHASE.  THE LINE WAS IN PROCESS
OF PERFECTING ITS "GRANDFATHER RIGHTS" UNDER SEC. 206(A), MOTOR CARRIER
ACT, AT THE TIME OF APPELLEES' AGREEMENT TO PURCHASE.  THE ORDER
DIRECTING ISSUE OF THE CERTIFICATE TO ROCK ISLAND RECOGNIZED THIS. 
THIS PURCHASE WAS AUTHORIZED UNDER SEC. 213, MOTOR CARRIER ACT OF 1935,
49 STAT. 555, APRIL 1, 1938, DOCKET NO. MC-F-445; REPORTED 5 M.C.C.
451, 15 M.C.C. 763.  THE SEGMENTS OF THE WHITE LINE PURCHASE HERE
INVOLVED ARE THOSE BETWEEN DES MOINES, IOWA, AND OMAHA, NEBRASKA, AND
DES MOINES, IOWA, AND SILVIS, ILLINOIS, INCLUDED IN TRANSIT'S
CERTIFICATE OF CONVENIENCE AND NECESSITY ISSUED IN NO. MC 29130,
DECEMBER 3, 1941.  THAT CERTIFICATE HAD ONLY THE FOLLOWING PROVISIONS
IN ANY WAY APPLICABLE TO THIS CONTROVERSY: 

"SERVICE IS AUTHORIZED TO AND FROM THE INTERMEDIATE POINTS ON THE
ABOVE-SPECIFIED ROUTES WHICH ARE ALSO STATIONS ON THE LINES OF THE
CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY. 

     .         .         .         .    . 

"THE OPERATIONS AUTHORIZED ON THE ABOVE-SPECIFIED ROUTES ARE SUBJECT
TO SUCH FURTHER LIMITATIONS, RESTRICTIONS, OR MODIFICATIONS AS WE MAY
FIND IT NECESSARY TO IMPOSE OR MAKE IN ORDER TO INSURE THAT THE SERVICE
SHALL BE AUXILIARY OR SUPPLEMENTARY TO THE TRAIN SERVICE OF THE
CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY AND SHALL NOT UNDULY
RESTRAIN COMPETITION." 

THE SECOND ACQUISITION IS THE SO-CALLED FREDERICKSON PURCHASE,
AUTHORIZED NOVEMBER 28, 1944, DOCKET NO. MC-F-2327, UNDER SEC. 5,
INTERSTATE COMMERCE ACT, 54 STAT. 905, BY WHICH TRANSIT ACQUIRED, FROM
THE HOLDERS OF A CERTIFICATE OF CONVENIENCE AND NECESSITY, A ROUTE
BETWEEN ATLANTIC, IOWA, AND OMAHA, NEBRASKA.  NEITHER THE REPORT NOR
THE ORDER CONTAINED PROVISIONS ALIKE OR AKIN TO THESE JUST QUOTED FROM
THE WHITE LINE CERTIFICATE.  NO ORDER FOR A CERTIFICATE HAS YET BEEN
ENTERED AND NO CERTIFICATE HAS BEEN ISSUED. 

THE ROUTES HERE INVOLVED ARE A MAJOR PART OF THE ROCK ISLAND'S TRUCK
ROUTE BETWEEN CHICAGO AND OMAHA.  THE EASTERN END OF THAT ROUTE FROM
SILVIS, ILLINOIS, TO CHICAGO IS OPERATED UNDER OTHER I.C.C. AUTHORITY. 

TRANSIT HAS BEEN OPERATING THE ABOVE ROUTES SINCE THEIR RESPECTIVE
DATES.  UNDER THOSE AUTHORITIES, TRANSIT STATES IT HAS ENGAGED IN
TRUCKING SERVICE AS FOLLOWS: 

"(A) A COORDINATED RAIL-SERVICE, AT RAIL RATES AUXILIARY TO THE
EXISTING SERVICE OF APPELLEE'S AFFILIATED RAILROAD; (B) A MOTOR SERVICE
IN SUBSTITUTION OF RAIL SERVICE, AT RAIL RATES; AND (C) A MOTOR COMMON
CARRIER SERVICE AT RATES AND TARIFFS OBSERVED AND APPLIED BY APPELLEE'S
PREDECESSORS, AS MODIFIED FROM TIME TO TIME." 

ON FEBRUARY 5, 1945, THE COMMISSION DIRECTED REOPENING OF THE DOCKETS
TO GIVE RECONSIDERATION TO THE ABOVE CERTIFICATE AND ORDER, 

"SOLELY TO DETERMINE (A) THE CONDITIONS OR RESTRICTIONS, IF ANY
APPEAR NECESSARY, WHICH SHOULD BE IMPOSED TO INSURE THAT THE MOTOR
CARRIER SERVICE PERFORMED BY THE ROCK ISLAND MOTOR TRANSIT COMPANY IS
LIMITED TO THAT WHICH IS AUXILIARY TO, OR SUPPLEMENTAL OF, RAIL
SERVICE, AND (B) THE CONDITION, IF ANY APPEARS NECESSARY, WHICH SHOULD
BE IMPOSED SO AS TO MAKE THE AUTHORITY GRANTED TO THE ROCK ISLAND MOTOR
TRANSIT COMPANY SUBJECT TO SUCH FURTHER CONDITIONS OR RESTRICTIONS AS
THE COMMISSION MAY FIND NECESSARY TO IMPOSE IN ORDER TO INSURE THAT THE
SERVICE SHALL BE AUXILIARY TO, OR SUPPLEMENTAL OF, RAIL SERVICE." 

AT THE END OF THAT RECONSIDERATION, AN ORDER WAS ENTERED TO MODIFY
THE WHITE PURCHASE CERTIFICATE AND THE FREDERICKSON ORDER IN THE
FOLLOWING RESPECTS: 

"1.  THE SERVICE TO BE PERFORMED BY THE ROCK ISLAND MOTOR TRANSIT
COMPANY SHALL BE LIMITED TO SERVICE WHICH IS AUXILIARY TO, OR
SUPPLEMENTAL OF, TRAIN SERVICE OF THE CHICAGO, ROCK ISLAND AND PACIFIC
RAILROAD COMPANY, HEREINAFTER CALLED THE RAILROAD. 

"2.  THE ROCK ISLAND MOTOR TRANSIT COMPANY SHALL NOT RENDER ANY
SERVICE TO OR FROM ANY POINT NOT A STATION ON A RAIL LINE OF THE
RAILROAD. 

"3.  NO SHIPMENTS SHALL BE TRANSPORTED BY THE ROCK ISLAND MOTOR
TRANSIT COMPANY BETWEEN ANY OF THE FOLLOWING POINTS, OR THROUGH, OR TO,
OR FROM, MORE THAN ONE OF SAID POINTS:  OMAHA, NEBR., DES MOINES, IOWA,
AND COLLECTIVELY DAVENPORT AND BETTENDORF, IOWA, AND ROCK ISLAND,
MOLINE, AND EAST MOLINE, ILL. 

"4.  ALL CONTRACTUAL ARRANGEMENTS BETWEEN THE ROCK ISLAND MOTOR
TRANSIT COMPANY AND THE RAILROAD SHALL BE REPORTED TO US AND SHALL BE
SUBJECT TO REVISION, IF AND AS WE FIND IT TO BE NECESSARY, IN ORDER
THAT SUCH ARRANGEMENTS SHALL BE FAIR AND EQUITABLE TO THE PARTIES. 

"5.  SUCH FURTHER SPECIFIC CONDITIONS AS WE, IN THE FUTURE, FIND IT
NECESSARY TO IMPOSE IN ORDER TO INSURE THAT THE SERVICE SHALL BE
AUXILIARY TO, OR SUPPLEMENTAL OF, TRAIN SERVICE."  ROCK ISLAND MOTOR
TRANSIT CO., 55 M.C.C. 567, 597-598, AFFIRMING 40 M.C.C. 457. 

IT IS FROM THOSE MODIFICATIONS THAT TRANSIT SOUGHT RELIEF THROUGH
SECS. 1336 AND 2325 OF 28 U.S.C. FROM A THREE-JUDGE DISTRICT COURT. 
THE RELIEF WAS GRANTED AND THE ORDERS WERE ANNULLED AND THEIR
ENFORCEMENT ENJOINED.  90 F.SUPP.  516.  THE UNITED STATES AND THE
INTERSTATE COMMERCE COMMISSION APPEALED UNDER 28 U.S.C. SEC. 1253.  WE
NOTED PROBABLE JURISDICTION. 

TRANSIT'S OBJECTION TO THE ORDER MODIFYING THE PROVISIONS UNDER WHICH
IT OPERATES THESE ROUTES MAY BE GENERALIZED AS A CONTENTION THAT THE
COMMISSION'S ORDER CHANGES OR REVOKES A PART OF TRANSIT'S OPERATING
AUTHORITY, PREVIOUSLY GRANTED BY THE COMMISSION, WITHOUT ANY FAILURE BY
TRANSIT TO COMPLY WITH ANY TERM, CONDITION OR LIMITATION OF THE
COMMISSION AUTHORITY UNDER WHICH TRANSIT FUNCTIONS.  CHANGES OR
REVOCATIONS MAY ONLY BE MADE UNDER SEC. 212(A) OF THE INTERSTATE
COMMERCE ACT, FOR SUCH FAILURES.  FN1 

THE COMMISSION, ON THE OTHER HAND, TAKES THE POSITION THAT THERE IS
NO CHANGE IN OR REVOCATION OF ITS AUTHORIZATION TO OPERATE AS A MOTOR
COMMON CARRIER.  IT LOOKS UPON THE CERTIFICATE FOR THE WHITE LINE ROUTE
AND THE ORDER FOR THE FREDERICKSON PURCHASE AS BEING CONTROLLED BY THE
INTERSTATE COMMERCE ACT AND TRANSIT'S APPLICATIONS FOR PURCHASE
APPROVAL.  THE COMMISSION UNDERSTANDS THE DECLARATION OF POLICY, SEC.
202(A) OF THE MOTOR CARRIER ACT, ENACTED AT THE INCEPTION OF FEDERAL
REGULATION OF MOTOR CARRIERS IN 1935, 49 STAT. 543, AS DIRECTING IT TO
PRESERVE THE INHERENT ADVANTAGES OF SUCH TRANSPORTATION IN THE PUBLIC
INTEREST.  IT FINDS SUPPORT FOR THIS VIEW IN THE NATIONAL
TRANSPORTATION POLICY SET OUT IN THE 1940 AMENDMENTS TO THE INTERSTATE
COMMERCE ACT, 54 STAT. 899, DECLARING THAT THE ACT SHOULD BE
ADMINISTERED SO AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
RAIL, MOTOR AND WATER TRANSPORTATION.  FN2  IT TREATS SEC. 213 OF THE
MOTOR CARRIER ACT OF 1935 AND PRESENT SEC. 5 OF THE INTERSTATE COMMERCE
ACT AS AUTHORIZING MERGERS, CONSOLIDATIONS AND ACQUISITIONS BETWEEN
RAIL AND MOTOR CARRIERS ONLY WITHIN THE TRANSPORTATION POLICY.  FN3
ALTHOUGH SEC. 207, PROVIDING FOR THE ISSUANCE OF CERTIFICATES OF
CONVENIENCE AND NECESSITY, HAS NO CLAUSE REQUIRING SPECIAL
JUSTIFICATION FOR RAILROADS TO RECEIVE MOTOR-CARRIER OPERATING RIGHTS,
SUCH AS APPEARS IN THE PROVISO IN FORMER SEC. 213 AND PRESENT SEC. 5,
THE COMMISSION APPLIES THE RULES OF THE NATIONAL TRANSPORTATION POLICY
SO AS TO READ THE PROVISO INTO SEC. 207 IN ORDER TO PRESERVE THE
INHERENT ADVANTAGES OF MOTOR-CARRIER SERVICE.  FN4 

THE TRIAL COURT ACCEPTED TRANSIT'S ARGUMENT.  90 F.SUPP.  AT 519. 
THE COURT FOUND THE UNDISPUTED FACT TO BE THAT THE COMMISSION, IN THIS
MODIFICATION PROCEEDING, WAS NOT ACTING UNDER SEC. 212 OF THE
INTERSTATE COMMERCE ACT, AUTHORIZING CHANGES OR REVOCATIONS IN
OPERATING AUTHORITY, BUT UNDER CLAIMED POWER SUBSEQUENTLY TO IMPOSE
CONDITIONS TO INSURE THAT THE OPERATIONS WOULD BE AUXILIARY TO, OR
SUPPLEMENTAL OF, RAIL SERVICE; THAT TRANSIT'S OPERATIONS WERE AT ALL
TIMES AUXILIARY AND SUPPLEMENTAL TO RAIL SERVICE WITHIN THE
COMMISSION'S DEFINITION OF THAT SERVICE WHEN THE ACQUISITIONS WERE
APPROVED, AND COULD NOT BE CHANGED OR REVOKED EXCEPT UNDER SEC. 212;
THAT SUCH RESTRICTIONS AS WERE PROPOSED WOULD INTERFERE WITH THE FULL
MOTOR COMMON-CARRIER RIGHTS OF TRANSIT'S PREDECESSORS GUARANTEED TO
THEM BY THE "GRANDFATHER CLAUSE," SEC. 206, AND TRANSFERRED TO TRANSIT
BY A PURCHASE APPROVED BY THE INTERSTATE COMMERCE COMMISSION. 

A GLANCE AT THE PROPOSED RESTRICTIONS, SUPRA, PP. 425-426, SHOWS THE
PRACTICAL DISADVANTAGES TO TRANSIT.  IT CANNOT CARRY ON A GENERAL ALL
MOTOR OPERATION ON ITS OWN BILLINGS OR UNDER MOTOR RATES, JOINT OR
LOCAL.  FN5  IT CANNOT HAUL THROUGH MOTOR TRAFFIC AT RAIL TARIFFS
BETWEEN THE "KEY POINTS," OMAHA, DES MOINES AND THE BETTENDORF-ROCK
ISLAND-MOLINE CENTER.  FURTHERMORE, TRANSIT RESTS UNDER THE THREAT OF
POSSIBLE FUTURE RESTRICTIONS AS NEED MAY BE SHOWN FOR THEIR APPLICATION
TO HOLD ITS OPERATIONS, UNDER CHANGING CONDITIONS, TO THOSE THEN
REASONABLY DETERMINED BY THE COMMISSION TO BE NEEDED TO KEEP TRANSIT'S
MOTOR SERVICE AUXILIARY AND SUPPLEMENTAL TO ITS PARENT'S RAIL SERVICE. 
TRANSIT ALLEGES THAT THE RESTRICTIONS WOULD BAR IT FROM PARTICIPATION
IN TRAFFIC ON THE AFFECTED ROUTES THAT NOW PRODUCE A GROSS REVENUE OF
MORE THAN A MILLION DOLLARS A YEAR.  AS DAMAGE TO TRANSIT, IF THE
COMMISSION ORDER IS ENFORCED, WAS ADMITTED, PROOF OF THE AMOUNT WAS
DISPENSED WITH. 

WITH THE SITUATION AS ABOVE STATED IN MIND, WE TAKE UP THE QUESTION
OF THE VALIDITY OF THE COMMISSION'S ACTION IN THIS CASE. 

STATUTORY AUTHORITY.  - THE COMMISSION HAS POWER AT THE TIME OF ITS
APPROVAL OF AN APPLICATION TO LIMIT THE AUTHORITY TO BE GRANTED BY
CERTIFICATES OF CONVENIENCE AND NECESSITY FOR THE OPERATION OF MOTOR
CARRIERS, WHETHER THE CERTIFICATE IS ISSUED ON AN ORIGINAL APPLICATION
UNDER SEC. 207 OR AFTER ACQUISITION UNDER SEC. 213 OF THE MOTOR CARRIER
ACT, SEC. 5(2) INTERSTATE COMMERCE ACT.  SECTION 206 REQUIRES A
CERTIFICATE.  SECTION 207 GIVES DISCRETION TO THE COMMISSION ACCORDING
TO THE STATUTORY STANDARDS OF CONVENIENCE AND NECESSITY TO AUTHORIZE A
PART OR ALL OF THE REQUESTED OPERATIONS.  THE SERVICE MUST BE PERFORMED
ACCORDING TO THE "REQUIREMENTS, RULES, AND REGULATIONS OF THE
COMMISSION." 

THE PRACTICE OF THE COMMISSION FROM THE BEGINNING OF MOTOR-CARRIER
REGULATION HAS BEEN TO RESTRICT MOTOR-CARRIER OPERATIONS BOTH
GEOGRAPHICALLY  FN6  AND FUNCTIONALLY.  FN7  THE SAME WAS TRUE OF
RAILROAD MOTOR-CARRIER AFFILIATES.  WE THINK THAT AT THE TIME OF
ISSUANCE OF THE CERTIFICATE, IF THE COMMISSION REASONABLY DEEMS THE
RESTRICTION USEFUL IN PROTECTING COMPETITION, OR FOR OTHER STATUTORY
PURPOSES, THE COMMISSION MAY REQUIRE THE RAILROAD-AFFILIATED MOTOR
CARRIER TO PERFORM ONLY THOSE SERVICES THAT ARE AUXILIARY AND
SUPPLEMENTAL TO THE RAIL SERVICE.  THAT THE RAILROADS MADE USE OF MOTOR
CARRIAGE PRIMARILY IN SUCH FASHION WAS KNOWN TO THE CONGRESS BEFORE THE
ENACTMENT OF ANY REGULATORY LEGISLATION IN THE FIELD.  FN8  SUCH A
RESTRICTION IS A LOGICAL METHOD TO INSURE THE MAXIMUM DEVELOPMENT OF
THE TWO TRANSPORTATION AGENCIES - RAILS AND MOTORS - AS COORDINATE
TRANSPORTATION SERVICES IN ACCORDANCE WITH THE DECLARATION OF POLICY,
SEC. 202(A) OF THE MOTOR CARRIER ACT OF 1935, 49 STAT. 543, LATER
INCORPORATED INTO THE NATIONAL TRANSPORTATION POLICY, PREFIXED TO THE
INTERSTATE COMMERCE ACT OF 1940, 54 STAT. 899.  SPECIFIC STATUTORY
AUTHORITY IS FOUND IN THE REQUIREMENTS OF THE PROVISO IN SEC. 213(A) OF
THE MOTOR CARRIER ACT OF 1935 AND SEC. 5 OF THE INTERSTATE COMMERCE ACT
AS AMENDED IN 1940, QUOTED IN NOTE 3, SUPRA. RAILROAD OPERATIONS AS
MOTOR CARRIERS ARE FORBIDDEN BY THAT ACQUISITION SECTION EXCEPT TO
ENABLE A RAILROAD "TO USE SERVICE BY MOTOR VEHICLE TO PUBLIC ADVANTAGE
IN ITS OPERATIONS."  FN9 

A SPATE OF CASES CAN BE CITED TO SUPPORT THE PRACTICE, SOME OF WHICH
WERE SPECIFICALLY CALLED TO CONGRESS' ATTENTION PRIOR TO THE ENACTMENT
OF THE 1940 ACT.  FN10  WITH THIS KNOWLEDGE THAT THE COMMISSION WAS
GRANTING CERTIFICATES WHEN IT DEEMED THE PROPOSED RAILROAD MOTOR
CARRIER AFFILIATES WOULD OPERATE AS AUXILIARY TO AND SUPPLEMENTAL OF
RAILROAD SERVICE, CONGRESS REENACTED SEC. 213 OF THE MOTOR CARRIER ACT
IN SEC. 5(2) OF THE TRANSPORTATION ACT OF 1940.  SUCH LIMITATION WAS IN
FURTHERANCE OF THE NATIONAL TRANSPORTATION POLICY, FOR OTHERWISE THE
RESOURCES OF RAILROADS MIGHT SOON MAKE OVER-THE-ROAD TRUCK COMPETITION
IMPOSSIBLE, AS UNREGULATED TRUCK TRANSPORT, IT WAS FEARED, MIGHT HAVE
CRIPPLED SOME RAILROADS.  MOTOR TRANSPORTATION THEN WOULD BE AN ADJUNCT
TO RAIL TRANSPORTATION, AND HOPED-FOR ADVANCEMENTS IN LAND
TRANSPORTATION FROM SUPERVISED COMPETITION BETWEEN MOTORS AND RAILS
WOULD NOT MATERIALIZE.  THE CONTROL OF THE BULK OF RAIL AND MOTOR
TRANSPORTATION WOULD BE CONCENTRATED IN ONE TYPE OF OPERATION. 
COMPLETE RAIL DOMINATION WAS NOT ENVISAGED AS A WAY TO PRESERVE THE
INHERENT ADVANTAGES OF EACH FORM OF TRANSPORTATION.  FN11 

AS INDICATED ABOVE IN THE TEXT JUST PRECEDING NOTE 4, THE COMMISSION
READS INTO SEC. 207 THE SAME REQUIREMENT.  THUS A CONSISTENT ATTITUDE
TOWARD THE USE OF MOTORS BY RAILROADS IS MAINTAINED.  IT ALSO RELIES ON
ITS UNDERSTANDING OF THE DIRECTIONS OF THE NATIONAL TRANSPORTATION
POLICY "TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF EACH,"
RAIL, MOTOR, AND WATER; AND ITS RELIANCE ON THAT POLICY IS FURTHER
JUSTIFIED BY THE WHITTINGTON AMENDMENT STATING THAT "ALL THE PROVISIONS
OF THIS ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING
OUT THE ABOVE DECLARATION OF POLICY."  54 STAT. 899. 

BUT POWER IN THE COMMISSION, BEFORE ISSUANCE OF A CERTIFICATE OR
APPROVAL OF ACQUISITION, TO LIMIT RAILROAD MOTOR OPERATIONS SO AS TO
MAKE THEM AUXILIARY AND SUPPLEMENTAL TO RAIL SERVICE DOES NOT
NECESSARILY IMPLY POWER TO CHANGE THE CONDITIONS DESIGNED TO BRING
ABOUT THE DESIRED COORDINATION, AFTER ISSUANCE OF THE CERTIFICATE.  THE
PARENT RAILROAD MAY HAVE ACQUIRED OR DEVELOPED ITS MOTOR AFFILIATE IN
RELIANCE ON THE CONDITIONS STATED IN THE CERTIFICATE.  SO FAR AS THE
PRESENT CASE IS CONCERNED, THERE IS A PROVISION, QUOTED ABOVE, PP. 423
424, MAKING THE CERTIFICATE FOR THE WHITE LINE OPERATION SUBJECT TO
FURTHER LIMITATIONS, RESTRICTIONS OR MODIFICATIONS THE COMMISSION MIGHT
FIND NECESSARY TO INSURE A CONTINUANCE OF AUXILIARY AND SUPPLEMENTAL
OPERATION AND TO AVOID UNDUE RESTRAINT ON COMPETITION.  IT WAS A CLAUSE
LIKE THIS IN INTERSTATE COMMERCE COMMISSION V. PARKER, 326 U.S. 60,
THAT OCCASIONED THE COMMENT THAT "IF THE COMMISSION LATER DETERMINES
THAT THE BALANCE OF PUBLIC CONVENIENCE AND NECESSITY SHIFTS THROUGH
COMPETITION OR OTHERWISE, SO THAT INJURY TO THE PUBLIC FROM IMPAIRMENT
OF THE INHERENT ADVANTAGES OF MOTOR TRANSPORTATION EXCEEDS THE
ADVANTAGE TO THE PUBLIC OF EFFICIENT RAIL TRANSPORTATION, THE
COMMISSION MAY CORRECT THE TENDENCY BY RESTORATION OF THE RAIL MOVEMENT
REQUIREMENT OR OTHERWISE."  ID. AT 71-72.  AS THE ISSUE IN THE PARKER
CASE WAS THE RIGHT TO ISSUE CERTIFICATES TO RAILWAY SUBSIDIARIES WHEN
EXISTING OVER-THE-ROAD MOTOR CARRIAGE MIGHT HAVE BEEN UTILIZED, NO
DETERMINATION WAS MADE THERE AS TO WHETHER OR NOT SUCH A RESERVATION
WAS VALID.  ITS EFFECT ON THE PRESENT ISSUES COMES FROM THE RULING
THERE MADE THAT THE COMMISSION HAD POWER TO BALANCE THE PUBLIC
INTERESTS IN THE DIFFERENT METHODS OF TRANSPORTATION SO AS TO PRESERVE
THE INHERENT ADVANTAGES OF EACH, EVEN THOUGH ITS ACTION MIGHT BRING
SOME DISADVANTAGE TO ONE SYSTEM OR THE OTHER.  THIS DUTY WAS SAID TO
HAVE BEEN IMPOSED UPON THE COMMISSION BY THE NATIONAL TRANSPORTATION
POLICY.  ID. AT P. 66. 

WHEN COMPETITION, PUBLIC INTEREST IN THE PRESERVATION OF THE INHERENT
ADVANTAGES OF RAILS AND MOTORS, AND USE OF MOTOR SERVICE BY RAILROADS
IN THEIR OPERATIONS ARE THE BASIS, AS THEY ARE (SEE NATIONAL
TRANSPORTATION POLICY, 54 STAT. 899 AND SEC. 5(2)(B)), FOR ALLOWING
ACQUISITIONS OF MOTOR ROUTES BY RAILROADS, WE THINK IT CONSONANT WITH
THAT POLICY TO RESERVE THE RIGHT TO MAKE FURTHER LIMITATIONS,
RESTRICTIONS OR MODIFICATIONS TO INSURE THAT THE SERVICE REMAIN
AUXILIARY OR SUPPLEMENTAL.  CONGRESS COULD NOT HAVE EXPECTED THE
COMMISSION TO BE ABLE TO DETERMINE ONCE AND FOR ALL THE PROVISIONS
ESSENTIAL TO MAINTAIN THE REQUIRED BALANCE.  SUCH A RESERVATION, OF
COURSE, DOES NOT PROVIDE UNFETTERED POWER IN THE COMMISSION TO CHANGE
THE CERTIFICATE AT WILL.  THAT WOULD VIOLATE SEC. 212, ALLOWING
SUSPENSION, CHANGE OR REVOCATION ONLY FOR THE CERTIFICATE HOLDERS'
WILLFUL FAILURE TO COMPLY WITH THE ACT OR LAWFUL ORDERS OR REGULATIONS
OF THE COMMISSION.  THE RESERVATION BY ITS TERMS DOES NOT OFFEND
AGAINST THE PROVISION OF SEC. 212 THAT A CERTIFICATE "SHALL REMAIN IN
EFFECT UNTIL SUSPENDED OR TERMINATED," AS SEC. 212 PROVIDES.  THE
COMMISSION ASSERTS THE MODIFICATIONS WERE MADE IN ACCORDANCE WITH THE
CERTIFICATE.  THE RESERVATION WOULD NOT AUTHORIZE CHANGES IN OPERATION
OR SERVICE UNCONNECTED WITH THE PLAN OF COORDINATED OPERATION; AND
INDEED TRANSIT WAS NOT ORIGINALLY AUTHORIZED TO OPERATE INDEPENDENTLY
AND AT LARGE.  WHAT THE RESERVATION DOES ALLOW ARE CHANGES TO INSURE
THAT THE OPERATIONS WILL CONTINUE AS AUXILIARY OR SUPPLEMENTAL TO THE
TRAIN SERVICE. 

THE CONSOLIDATION SECTION, SEC. 5(2), PERMITS A RAILROAD TO PURCHASE
A MOTOR CARRIER ONLY "WITH THE APPROVAL AND AUTHORIZATION OF THE
COMMISSION."  THAT APPROVAL IS CONTINGENT UPON A FINDING OF PUBLIC
ADVANTAGE AND LACK OF UNDUE RESTRAINT ON COMPETITION.  THEN APPROVAL IS
TO BE MADE "UPON THE TERMS AND CONDITIONS, AND WITH THE MODIFICATIONS,
SO FOUND TO BE JUST AND REASONABLE." 

WE NOTE THE DIRECTIONS OF SEC. 208 AS TO THE CERTIFICATE, REQUIRING
THAT IT "SHALL SPECIFY THE SERVICE TO BE RENDERED" AND THAT "THERE
SHALL, AT THE TIME OF ISSUANCE AND FROM TIME TO TIME THEREAFTER, BE
ATTACHED TO THE EXERCISE OF THE PRIVILEGES GRANTED BY THE CERTIFICATE
SUCH REASONABLE TERMS, CONDITIONS, AND LIMITATIONS AS THE PUBLIC
CONVENIENCE AND NECESSITY MAY  ... REQUIRE."  WE NOTE ALSO SECS. 216(C)
AND 217(A) WITH THEIR PROVISIONS ALLOWING COMMON CARRIERS BY MOTOR TO
ESTABLISH THROUGH ROUTES AND JOINT RATES WITH OTHER CARRIERS, MOTOR OR
OTHERWISE.  SECTIONS 208, 216(C) AND 217(A) WITH THEIR GENERAL
PROVISIONS DO NOT IN OUR OPINION OVERRIDE THE SPECIFIC REQUIREMENT OF
THE NATIONAL TRANSPORTATION POLICY THAT THE INHERENT ADVANTAGES OF ALL
MODES OF TRANSPORTATION BE RETAINED, OR OF SEC. 5 THAT ACQUISITION OF
MOTOR ROUTES BY RAILROADS SHALL REQUIRE THE ABOVE SPECIAL FINDINGS AND
MAY BE SUBJECT TO SPECIAL CONDITIONS.  SECTION 208 DOES NOT SEEM TO
CONFLICT WITH SEC. 5(B), AND SEC. 216(C) IS BASED ON VOLUNTARY ACTION. 
AND WE NEED NOT PAUSE OVER THE CONTENTION THAT LIMITATIONS PLACED UPON
RAIL-OWNED MOTOR CARRIERS TRANSFORM THEM FROM COMMON INTO CONTRACT
CARRIERS UNDER THE DEFINITIONS IN SEC. 203. 

THE LANGUAGE OF THE PROVISO OF SEC. 5(2)(B), WE HOLD, GIVES THE
COMMISSION POWER TO ENFORCE THE RESERVATION IN THE CERTIFICATE SET OUT
ON PP. 423-424, SUPRA.  WE TURN THEN TO THE QUESTION WHETHER THE FIVE
DIRECTED MODIFICATIONS OF THE CERTIFICATE, PP. 425-426, SUPRA, FAIRLY
MAY BE SAID TO BE OF A CHARACTER AUXILIARY TO OR SUPPLEMENTAL OF TRAIN
SERVICE AND NOT SUCH A CHANGE OR REVOCATION IN PART AS IS CONTEMPLATED
BY THE PROCEDURE OF SEC. 212, FOR FAILURE TO COMPLY WITH STATUTORY OR
REGULATORY PROVISIONS. 

AUXILIARY AND SUPPLEMENTAL.  - THE INTERSTATE COMMERCE ACT SETS OUT
ONLY GENERALLY REQUIREMENTS THAT MUST BE MET BY RAILROAD APPLICANTS FOR
MOTOR-CARRIER CERTIFICATES.  IN ACQUISITION CASES UNDER SEC. 5(2) THE
CERTIFICATE IS NOT TO BE ISSUED WITHOUT THE STATUTORY FINDINGS
DISCUSSED ABOVE THAT THE PROPOSED MERGER OR CONSOLIDATION WILL BE IN
THE "PUBLIC INTEREST" AND THAT THE RAILROAD CAN USE THE MOTOR SERVICE
"TO PUBLIC ADVANTAGE IN ITS OPERATIONS."  FN12 

THE WORDS "AUXILIARY TO OR SUPPLEMENTAL OF"  FN13  ARE NOT TAKEN FROM
THE ACT.  THERE IS NO SUCH SPECIFIC LIMITATION FOR RAILROAD OPERATION
OF MOTOR CARRIERS.  THEIR CONNOTATION IS TO BE GATHERED FROM THE
CONTEXT IN WHICH THEY HAVE BEEN EMPLOYED BY THE COMMISSION.  THE
CERTIFICATE, PP. 423-424, SUPRA, USED THE PHRASE TO AVOID UNDUE
RESTRAINT ON COMPETITION.  THAT HAS BEEN ITS USE FROM THE BEGINNING. 
THE ONLY COMPETITION AT WHICH THE LIMITATION WAS DIRECTED WAS FULL
RAILROAD COMPETITION WITH OVER-THE-ROAD MOTOR CARRIERS.  APPELLEES URGE
THAT THE MEANING OF THE WORDS IS LIMITED BY ITS APPLICATION THROUGH THE
RESTRICTIONS ON THE CERTIFICATES AT THE TIME IT WAS ISSUED, DECEMBER 3,
1941. 

APPELLEES ASSERT THAT UNDER THEIR CERTIFICATE THEY COULD AND DID
TRANSPORT AT EITHER RAIL OR TRUCK BILLING AND RATES, WITH NO
RESTRICTION OF MOVEMENT ALONG THE ROUTE.  THE AUXILIARY AND
SUPPLEMENTAL REQUIREMENT, THEY ARGUE, IS ADEQUATELY COMPLIED WITH BY
RESTRICTING THE SERVICE TO POINTS "WHICH ARE ALSO STATIONS ON THE LINES
OF THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY."  THE
COMMISSION, APPELLEES CONTEND, WAS FUNCTIONING WITH THIS GEOGRAPHICAL
CONCEPT OF AUXILIARY AND SUPPLEMENTAL IN MIND WHEN, IN 1941,
RESERVATION WAS MADE IN TRANSIT'S CERTIFICATE.  TO SUPPORT THIS
ASSERTION, APPELLEES CALL ATTENTION TO THE CASE IN WHICH THE PHRASE
"AUXILIARY AND SUPPLEMENTARY" WAS FIRST APPLIED TO AUTHORIZE MOTOR
SERVICE OF RAILROAD AFFILIATES, PENNSYLVANIA TRUCK LINES, INC. - BARKER
MOTOR FREIGHT, 1 M.C.C. 101 AT 113, OCTOBER 8, 1936.  FN14  LATER, IN 5
M.C.C. 9, MARCH 6, 1937, THE FORM WAS CHANGED AS SHOWN BELOW.  FN15
THAT THIS AUTHORIZATION PERMITTED GENERAL MOTOR-CARRIER SERVICE ALONG
THE RAIL LINES, APPELLEE STATES, IS SHOWN BY PENNSYLVANIA TRUCK LINES,
INC., EXTENSION - LEBANON, OHIO, 47 M.C.C. 837, DECIDED JANUARY 6,
1948.  FN16  SEE ALSO, SOUTHERN PACIFIC COMPANY - VALLEY MOTOR LINES,
INC., 39 M.C.C. 441, 447.  FN17 

THE COMMISSION ASSERTS THAT THE MEANING OF "AUXILIARY AND
SUPPLEMENTAL" AS USED IN THE BARKER PURCHASE AND THEREAFTER WAS NOT
GEOGRAPHICAL.  THIS, IT SAYS, IS SHOWN BY THE EXPLANATION IN 5 M.C.C.
AT P. 11, A LATER BARKER REPORT AND ORDER.  FN18 IN 1943, AFTER THE
CERTIFICATE HERE IN QUESTION WAS ISSUED, THE COMMISSION DEFINED
"AUXILIARY AND SUPPLEMENTAL" IN THE TEXAS & PACIFIC MOTOR TRANSPORT
COMPANY APPLICATION, 41 M.C.C. 721.  FN19  THE COMMISSION NOTES THAT
THE VALLEY CASE, SUPRA, CAME AFTER TEXAS & PACIFIC, AND NOW CONSIDERS
IT DISAPPROVED BY A SUBSEQUENT DENIAL OF RECONSIDERATION OF TEXAS &
PACIFIC.  55 M.C.C. 567, 584-585.  THE QUESTION HAS EVIDENTLY PRODUCED
A DIFFERENCE OF OPINION IN THE COMMISSION.  FN20 

APPELLEES CHARGED THAT THE COMMISSION HAD TIGHTENED ITS "CONCEPT OF
WHAT IS AUXILIARY TO, OR SUPPLEMENTAL OF, RAIL SERVICE."  55 M.C.C.
567, 583.  THE COMMISSION REFUSED TO ACCEPT THAT ASSUMPTION AND
THEREFORE DID NOT DISCUSS THE NECESSITY OF PROCEEDING UNDER SEC. 212 IN
CHANGING OR PARTIALLY REVOKING THE CERTIFICATE.  IT HELD: 

"WE CONCLUDE THAT APPROVAL OF THE ACQUISITION BY TRANSIT WAS SOLELY
FOR THE PURPOSE OF ENABLING TRANSIT TO PERFORM A SERVICE AUXILIARY TO
AND SUPPLEMENTAL OF RAIL SERVICE; THAT SUCH INTENT OR PURPOSE WAS
ADEQUATELY EVIDENCED BY THE REPORT OF DIVISION 5 INCLUDING THE
RESERVATION OF A RIGHT SPECIFICALLY TO RESTRICT IF NEED SHOULD BE
FOUND; THAT TRANSIT HAS NO CAUSE FOR ANY COMPLAINT THAT IT WAS MISLED
TO ITS PREJUDICE AND THAT OUR CONCEPT AT THE TIME OF THE ORIGINAL
DECISION HEREIN, AS TO WHAT CONSTITUTES SERVICE AUXILIARY TO OR
SUPPLEMENTAL OF RAIL SERVICE, THOUGH NOW DESCRIBED IN GREATER DETAIL,
HAS NOT BEEN REVISED TO TRANSIT'S PREJUDICE; AND THAT THERE IS NO
ELEMENT OF UNFAIRNESS IN OUR EXERCISE NOW OF ANY AUTHORITY WHICH WE
HAVE TO RESTRICT FUTURE OPERATIONS."  55 M.C.C. 567, 585. 

IT IS TO BE NOTED ALSO THAT THE EXAMINER'S REPORT ON THE WHITE LINE
PURCHASE IN 1938 RECOMMENDED "THAT NO TRUCK SERVICE SHALL BE CONDUCTED
AT OTHER THAN RAIL RATES."  ON OBJECTION BY APPELLEE THIS REQUIREMENT
WAS ELIMINATED.  5 M.C.C. 451, 458; 55 M.C.C. 567, 576 FF.; 90 F.SUPP. 
516, 518.  FURTHERMORE, THE COMMISSION REQUIRED THE APPELLEE TO FILE
TARIFFS FOR TRUCK RATES AND TRUCK BILLING WITH THE COMMISSION.  90
F.SUPP.  516, 518.  THE DISTRICT COURT CONCLUDED AS A MATTER OF LAW AS
FOLLOWS: 

"3.  PRIOR TO AND AT THE TIME OF THE APPROVAL OF THE WHITE LINE
TRANSACTION AND THE ISSUANCE IN SAID PROCEEDING OF PLAINTIFF'S
CERTIFICATE, AND AT THE TIME OF THE APPROVAL OF THE ACQUISITION OF THE
FREDERICKSON CERTIFICATE, THE TERM, 'AUXILIARY TO AND SUPPLEMENTAL OF
TRAIN SERVICE' DID NOT PROHIBIT THE RENDITION OF ALL-MOTOR SERVICE
DIRECTLY FOR THE SHIPPING PUBLIC AT ALL-MOTOR RATES IN ADDITION TO
SERVICE AT RAIL RATES IN SUBSTITUTION FOR AND IN LIEU OF THE RAIL
SERVICE OF PLAINTIFF'S AFFILIATED RAILROAD."    WHAT WAS IN THE
COMMISSION'S MIND AS TO THE MEANING OF AUXILIARY AND SUPPLEMENTAL AT
THE TIME IT ISSUED ITS CERTIFICATE, WE CANNOT BE SURE.  AT PRESENT A
MOTOR SERVICE IS AUXILIARY AND SUPPLEMENTAL TO RAIL SERVICE, IN THE
COMMISSION'S VIEW, WHEN THE RAILROAD-AFFILIATED MOTOR CARRIER IN A
SUBORDINATE CAPACITY AIDS THE RAILROAD IN ITS RAIL OPERATIONS BY
ENABLING THE RAILROAD TO GIVE BETTER SERVICE OR OPERATE MORE CHEAPLY
RATHER THAN INDEPENDENTLY COMPETING WITH OTHER MOTOR CARRIERS. 
UNDOUBTEDLY THE COMMISSION HAS NOT CONSISTENTLY REQUIRED EACH RAIL
AFFILIATED MOTOR CARRIER TO FOREGO MOTOR BILLINGS OR TARIFFS.  KEY
POINTS TO BREAK TRAFFIC ARE RELATIVELY NEW.  28 M.C.C. 5.  RAIL
AFFILIATES HAVE BEEN PERMITTED TO LEAVE THE LINE OF THE RAILROAD TO
SERVE COMMUNITIES WITHOUT OTHER TRANSPORTATION SERVICE.  FN21  THOSE
DIVERGENCES, HOWEVER, ARE AN EXERCISE OF THE DISCRETIONARY AND
SUPERVISORY POWER WITH WHICH CONGRESS HAS ENDOWED THE COMMISSION.  IT
IS BECAUSE CONGRESS COULD NOT DEAL WITH THE MULTITUDINOUS AND VARIABLE
SITUATIONS THAT ARISE THAT THE COMMISSION WAS GIVEN AUTHORITY TO ADJUST
SERVICES WITHIN THE LIMITS OF THE MOTOR CARRIER ACT.  SEC. 208.  THE
COMMISSION HAS CONTINUALLY EVIDENCED, AS INDICATED ABOVE, BY OPINION
AND CERTIFICATION ITS INTENTION TO HAVE RAIL-OWNED MOTOR CARRIERS SERVE
IN AUXILIARY AND SUPPLEMENTAL CAPACITY TO THE RAILROADS. 

APPELLEES URGE THAT THE NEW CONDITIONS MARK A NEW COMMISSION POLICY;
THAT IT IS SUCH A CHANGE IN THE CERTIFICATE AS WAS CONDEMNED IN THE
CASE OF WATER CARRIERS BY UNITED STATES V. SEATRAIN LINES, 329 U.S.
424, 428.  WITHOUT RELYING UPON THE STATUTORY DIFFERENCES BETWEEN
COMMISSION POWER OVER MOTOR AND WATER CARRIERS, PP. 429-432, WE BELIEVE
THAT CASE IS INAPPLICABLE TO THESE CIRCUMSTANCES.  IN SEATRAIN A
CERTIFICATE WAS GRANTED TO CARRY "COMMODITIES GENERALLY."  FOR THE
COMMISSION THEN TO MODIFY THIS TO "IN RAILROAD CARS ONLY" OR "EXCEPT IN
RAILROAD CARS" WOULD LIMIT THE FREIGHT AUTHORIZED TO BE CARRIED BY THE
CERTIFICATE.  TRANSIT'S CERTIFICATE, ON THE OTHER HAND, REQUIRED
SERVICE AUXILIARY AND SUPPLEMENTAL TO RAILS, AND THE MODIFICATION WAS
NOT A CHANGE OF POLICY AS TO THAT BUT AN ADDITIONAL REQUIREMENT TO
INSURE COORDINATED SERVICE.  THE NEW CONDITIONS, PP. 425-426, SUPRA,
ARE OF A CHARACTER THAT AIDS RAIL OPERATION AND MINIMIZES COMPETITION
WITH OVER-THE-ROAD MOTOR CARRIERS.  SUCH ADDED CONDITIONS ARE NOT
CHANGES IN OR REVOCATIONS OF A CERTIFICATE IN WHOLE OR IN PART BUT A
CARRYING OUT OF THE RESERVATION IN THE CERTIFICATE. 

THE COMMISSION HAS EXPRESSED ITS POLICY TO LIMIT RAIL AFFILIATES TO
SERVICES IN AID OF RAIL TRANSPORTATION BY THE PHRASE, PERHAPS TOO
SUMMARY, AUXILIARY AND SUPPLEMENTAL.  THOUGH THE PHRASE IS DIFFICULT TO
DEFINE PRECISELY, ITS GENERAL CONTENT IS SET OUT IN TEXAS & PACIFIC
MOTOR TRANSPORT CO. APPLICATION, 41 M.C.C. 721, 726, QUOTED N. 19,
SUPRA.  WHILE THE PRACTICE OF THE COMMISSION HAS VARIED IN THE
CONDITIONS IMPOSED, THE PURPOSE TO HAVE RAIL-CONNECTED MOTOR CARRIERS
ACT IN COORDINATION WITH TRAIN SERVICE HAS NOT.  CIRCUMSTANCES CHANGE. 
DIFFERENT CONDITIONS ARE REQUIRED UNDER DIFFERENT CIRCUMSTANCES TO
MAINTAIN THE BALANCE BETWEEN RAIL AND MOTOR CARRIAGE.  WE DO NOT THINK
THE MEANING OF AUXILIARY AND SUPPLEMENTAL IS LIMITED TO THE
COMMISSION'S PRACTICE AT ANY PARTICULAR TIME.  SO LONG AS IT MAY FAIRLY
BE SAID THAT THE PRACTICE REQUIRED FROM THE MOTOR CARRIER FALLS WITHIN
THE MEANING THE COMMISSION HAS GIVEN TO AUXILIARY AND SUPPLEMENTAL, THE
CONDITION IS VALID. 

SUCH RESTRICTIONS HAMPER RAILROAD COMPANIES IN THE USE OF THEIR
PHYSICAL FACILITIES - STATIONS, TERMINALS, WAREHOUSES - THEIR PERSONNEL
AND THEIR CAPITAL IN THE DEVELOPMENT OF THEIR TRANSPORTATION
ENTERPRISES TO ENCOMPASS ALL OR AS MUCH OF MOTOR TRANSPORTATION AS THE
ROADS MAY DESIRE.  THE ANNOUNCED TRANSPORTATION POLICY OF CONGRESS DID
NOT PERMIT SUCH DEVELOPMENT.  FN22 WE HOLD THAT THE NEW CONDITIONS ARE
WITHIN THE LIMITS COVERED BY THE RESERVATION OF POWER TO IMPOSE SUCH
FURTHER LIMITATIONS AS MIGHT BE FOUND NECESSARY "TO INSURE THAT THE
SERVICE SHALL BE AUXILIARY OR SUPPLEMENTARY TO THE TRAIN SERVICE" OF
THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY. 

FREDERICKSON PURCHASE.  - THE STATEMENT OF FACTS AT THE BEGINNING OF
THIS OPINION SHOWS THE FREDERICKSONS POSSESSED CERTIFICATES ISSUED
UNDER THE PROVISO OF SEC. 206, THE "GRANDFATHER CLAUSE."  TRANSIT
AGREED TO PURCHASE THESE RIGHTS SUBJECT TO THE APPROVAL OF THE
COMMISSION.  THIS APPROVAL WAS GIVEN BY A REPORT AND ORDER.  THE ORDER
APPROVED THE PURCHASE OF THE "OPERATING RIGHTS AND PROPERTY  ...
SUBJECT TO THE TERMS AND CONDITIONS SET OUT IN THE FINDINGS IN SAID
REPORT."  THE FINDINGS COMPLIED WITH SEC. 5(2)(A) AND (B) OF THE
TRANSPORTATION ACT.  THEY STATED, "THE ROCK ISLAND MOTOR TRANSIT
COMPANY WILL BE ENTITLED TO A CERTIFICATE COVERING THE PREVIOUSLY
DESCRIBED PORTION OF RIGHTS GRANTED IN NOS. MC-530 AND MC-530(SUB-NO.
1), WHICH RIGHTS ARE HEREIN AUTHORIZED TO BE UNIFIED WITH RIGHTS
OTHERWISE CONFIRMED IN THE ROCK ISLAND MOTOR TRANSIT COMPANY, WITH
DUPLICATIONS ELIMINATED; ...  "  THE WORDS "PREVIOUSLY-DESCRIBED
PORTION OF RIGHTS GRANTED" COVER THE FREDERICKSON CERTIFICATES AS "A
MOTOR-VEHICLE COMMON CARRIER OF GENERAL COMMODITIES OVER REGULAR ROUTES
BETWEEN" NAMED POINTS.  THE FREDERICKSON CERTIFICATES ALSO COVERED
IRREGULAR ROUTES FOR CERTAIN COMMODITIES.  THESE LATTER RIGHTS WERE NOT
PURCHASED.  THE RIGHTS PURCHASED WERE OVER-THE-ROAD MOTOR-CARRIER
RIGHTS.  NEITHER THOSE CERTIFICATES NOR THE REPORT OR ORDER ON THE
PURCHASE APPLICATION CONTAINED ANYTHING SPECIFICALLY LIMITING THE
OPERATIONS TO SERVICE AUXILIARY TO AND SUPPLEMENTAL OF THE ROCK ISLAND
TRAIN SERVICE.  THERE WAS A FINDING, IN THE WORDS OF THE PROVISO TO
SEC. 5(2)(B), THAT THE PURCHASE "WILL ENABLE THE CHICAGO, ROCK ISLAND
AND PACIFIC RAILWAY COMPANY  ...  TO USE SERVICE BY MOTOR VEHICLE TO
PUBLIC ADVANTAGE IN ITS OPERATIONS."  THE TRANSACTION WAS CONSUMMATED
IN JANUARY 1945, OVER SIX YEARS AFTER THE APPROVAL OF THE WHITE LINE
PURCHASE AND OVER THREE YEARS AFTER THE ISSUE OF THAT ORIGINAL
CERTIFICATE, HEREINBEFORE DISCUSSED. 

THE BASIC QUESTION POSED AS TO THIS PURCHASE IS SIMILAR TO THAT IN THE
WHITE LINE PURCHASE.  HAS THE COMMISSION POWER TO PLACE IN THE
FREDERICKSON CERTIFICATES THE MODIFICATIONS ORDERED FOR THE WHITE LINE
CERTIFICATE?  WE WILL SOLVE THE PROBLEM BY DETERMINING THAT THE ORDER
APPROVING THE PURCHASE HAS NOT THE FINALITY OF A CERTIFICATE BUT IS
RATHER ONLY A TENTATIVE APPROACH TO THE CONSUMMATION OF THE PURCHASE
SUBJECT TO CHANGES IN CONDITIONS AND REQUIREMENTS.  THE POWER TO ISSUE
THE CERTIFICATE WITH THE WHITE LINE MODIFIED CONDITIONS FOLLOWS, A
PRIORI, FROM WHAT WE HAVE SAID IN THE FOREGOING DIVISION OF THIS
DECISION.  THIS LEAVES UNANSWERED THE QUESTION OF THE POWER OF THE
COMMISSION TO MODIFY A RAILROAD-AFFILIATED MOTOR CARRIER'S CERTIFICATE
SO AS TO MAKE ITS OPERATION AUXILIARY TO AND SUPPLEMENTAL OF THE RAIL
SERVICE, WHEN NO RESERVATION FOR OR RESTRICTION TO THAT EFFECT HAS BEEN
PLACED IN THE ORDER DIRECTING THE ISSUE OF THE CERTIFICATE OR THE
CERTIFICATE ITSELF.  IF ANY SUCH PROCEDURE SHOULD BE UNDERTAKEN BY THE
COMMISSION, THAT ANSWER SHOULD AWAIT A FULLY DEVELOPED STATEMENT AND
ARGUMENT BY THE INTERESTS AFFECTED.  OUR REASONS FOR HOLDING THAT THE
COMMISSION MAY VALIDLY INSERT THE PROPOSED LIMITATIONS IN THE
CERTIFICATE FOLLOW. 

CLOSINGS OF LOANS AND PURCHASES INVOLVE NICE TIMING ADJUSTMENTS.  THE
TRANSPORTATION INDUSTRY IS FAMILIAR WITH THE COMPLEXITIES OF CLOSINGS
INVOLVING CLEARANCES OR IMPOSITIONS OF PRIOR AND UNDERLYING MORTGAGES
AND PARTITION OF OBLIGATIONS AMONG SYNDICATES OF LENDERS OR PURCHASERS,
FROM RAIL SYSTEM MORTGAGES TO SECURE VARIOUS CLASSES OF OBLIGEES IN
REORGANIZATIONS TO SIMPLE BORROWINGS FOR TRUSTEED EQUIPMENT.  IT
UNDERSTANDS THE BUSINESS RISKS OF PURCHASE OR SALE AHEAD OF FINAL
COMMITMENT BY A SEPARATE ENTITY.  A REQUEST FOR A STATEMENT OF THE
TERMS OF THE PROPOSED CERTIFICATE OF CONVENIENCE AND NECESSITY WOULD
DOUBTLESS HAVE BEEN COMPLIED WITH BY THE COMMISSION.  IF NOT, THE
CLOSING WITH FREDERICKSON COULD HAVE BEEN MADE BY ESCROW OR OTHERWISE
SIMULTANEOUSLY WITH THE ISSUE OF THE CERTIFICATE. 

TRANSIT HAD HAD EXPERIENCE WITH THE PROBLEMS OF CO-ORDINATION BETWEEN
RAIL AND MOTOR SERVICE.  FN23  IN THIS APPLICATION IT OBJECTED TO A
LIMITATION ON FREIGHT OF IMMEDIATELY PRIOR OR IMMEDIATELY SUBSEQUENT
RAIL CARRIAGE.  THE LIMITATION WAS NOT PUT IN THE REPORT AS A
CONDITION.  WHILE THE REPORT STRESSED THE RAIL OPERATING ADVANTAGES OF
THE USE OF TRUCKS, IT DID NOT DEAL WITH THE TERMS AUXILIARY AND
SUPPLEMENTAL.  IF THE PROBLEM OF LIMITATION OF THE CERTIFICATE TO MOTOR
SERVICE IN RAIL OPERATION OCCURRED TO THE APPLICANT OR THE COMMISSION,
PRECEDENTS FROM THE BARKER CASE TO THE WHITE LINE APPLICATION WOULD
HAVE INDICATED AN INCLUSION IN THE CERTIFICATE OF A LIMITATION OF
AUXILIARY TO AND SUPPLEMENTAL OF RAIL SERVICE. 

TRANSIT MAINTAINS THAT THE ORDER IS FINAL; THAT THE RESULT IS THE
SAME AS THOUGH THE SERVICE REQUIREMENTS OF THE ORDER OF APPROVAL WERE
WRITTEN INTO THE OPERATING CERTIFICATE AS DIRECTED BY THE STATUTE. 
SEC. 208.  "THE DECISIONS OF THE COMMISSION," ARGUES TRANSIT, REFLECT
"FINALITY OF ACTION."  FN24  NEITHER OF THE LATTER TWO CASES IN THE
NOTE BEAR IN ANY WAY ON THE PRESENT POINT.  IN BOTH, CERTIFICATES HAD
BEEN ISSUED AND THE COMMISSION SAID, IN SO MANY WORDS, THE CERTIFICATES
ARE FINAL.  IN THE SMITH BROS. CASE, IT ADDED: 

"WE MAY ISSUE DECISION UPON DECISION, AND ORDER UPON ORDER, ON AN
APPLICATION FOR A CERTIFICATE SO LONG AS SUFFICIENT REASON THEREFOR
APPEARS AND UNTIL ALL CONTROVERSY IS DETERMINED, BUT ONCE A
CERTIFICATE, DULY AND REGULARLY ISSUED, BECOMES EFFECTIVE, OUR
AUTHORITY TO TERMINATE IT IS EXPRESSLY MARKED OFF AND LIMITED.  ALL THE
ANTECEDENT DECISIONS AND ORDERS ARE ESSENTIALLY PROCEDURAL IN
CHARACTER, AND MAY BE SET ASIDE, MODIFIED, OR VACATED, BUT THE
CERTIFICATE MARKS THE END OF THE PROCEEDING, JUST AS THE ENTRY OF A
FINAL JUDGMENT OR DECREE MARKS THE END OF A COURT PROCEEDING."  P.
472. 

WHAT SLIGHT BEARING SEATRAIN HAS WEIGHS ON THE SIDE OF THE
INTERLOCUTORY CHARACTER OF THE APPROVAL ORDER.  THE SENTENCE REFERRED
TO READS: 

"BUT, AS THE COMMISSION HAS SAID AS TO MOTOR CARRIER CERTIFICATES,
WHILE THE PROCEDURAL 'ORDERS' ANTECEDENT TO A WATER CARRIER CERTIFICATE
CAN BE MODIFIED FROM TIME TO TIME, THE CERTIFICATE MARKS THE END OF
THAT PROCEEDING."  P. 432. 

AS UNDER THE STATUTE, SECS. 206, 207, 208, MOTOR CARRIERS MUST HAVE
CERTIFICATES AUTHORIZING THEIR OPERATIONS, WE CONCLUDE THAT THE
CERTIFICATE IS THE FINAL ACT OR ORDER THAT VALIDATES THE OPERATION. 
UNTIL ITS FORM AND CONTENT ARE FIXED BY DELIVERY TO THE APPLICANT, THE
POWER TO FRAME IT IN ACCORDANCE WITH STATUTORY DIRECTIONS PERSISTS. 

IT MAY BE SAID THAT, AS THE ORDER PERMITTED TRANSIT TO PURCHASE THE
FREDERICKSON "OPERATING RIGHTS," IT MUST HAVE FREEDOM TO USE ALL THE
SELLER'S MOTOR-CARRIER PRIVILEGES; THAT THE ABSENCE OF A RESERVATION
DEFEATS COMMISSION POWER TO INSERT "AUXILIARY AND SUPPLEMENTAL"
RESTRICTIONS IN THE CERTIFICATE.  SINCE WE HOLD THE ORDER OF APPROVAL
IS NOT THE FINAL ORDER, WE REJECT THE PREMISE. 

OTHER OBJECTIONS.  - A NUMBER OF OTHER OBJECTIONS TO THE ENFORCEMENT
OF THE ORDERS WERE PRESENTED BY APPELLEES AND CONSIDERED BY THE COURT. 
WE COMMENT BRIEFLY ON THOSE WE THINK MERIT NOTICE.  "GRANDFATHER
RIGHTS" UNDER SEC. 206 OF THE TRANSPORTATION ACT WERE THE BASIS OF THE
WHITE AND FREDERICKSON APPLICATIONS FOR CERTIFICATES OF CONVENIENCE AND
NECESSITY.  TRANSIT ACQUIRED THE SELLERS' RIGHTS TO CERTIFICATES. 
APPELLEES CONTEND THAT AS THE SELLERS WERE ENTITLED TO BROADER
OPERATING RIGHTS THAN ARE ALLOWED THE PURCHASER UNDER THE MODIFIED
CERTIFICATE, THE RIGHT TO "SUBSTANTIAL PARITY BETWEEN FUTURE OPERATIONS
AND PRIOR BONA FIDE OPERATIONS" GUARANTEED BY SEC. 206 IS INFRINGED BY
LIMITING THE MOTOR SERVICE TO THAT AUXILIARY AND SUPPLEMENTAL TO RAIL
SERVICE.  FN25  A RAILROAD PURCHASER DOES NOT NECESSARILY RECEIVE ALL
RIGHTS A CERTIFICATE HOLDER POSSESSES.  BECAUSE OF THE NATIONAL
TRANSPORTATION POLICY AND SEC. 5, MAKING A RAILROAD'S PURCHASE SUBJECT
TO CONDITIONS, AS HEREINBEFORE DESCRIBED, APPROVAL MAY BE CONDITIONED
BY THE COMMISSION ON THE RAILROAD PURCHASER'S WILLINGNESS TO ACCEPT A
NARROWER CERTIFICATE THAN THAT POSSESSED BY THE SELLER. 

FINALLY, THE APPELLEE ASSERTS THAT ITS CERTIFICATE IS PROPERTY AKIN
TO A FRANCHISE; THAT IT HAS INVESTED LARGE SUMS IN THE ACQUISITION AND
EQUIPMENT OF ITS ROUTES AND SERVICE, AND THAT WHAT IT ALLEGES IS
REVOCATION DEPRIVES IT OF PROPERTY WITHOUT DUE PROCESS OF LAW.  WE
THINK THAT OUR PREVIOUS HOLDING IN THIS DECISION THAT TRANSIT TOOK ITS
CERTIFICATE AND OBTAINED APPROVAL OF ITS ACQUISITIONS TO OPERATE IN THE
AID OF THE RAILROAD, AUXILIARY AND SUPPLEMENTAL THERETO, MAKES IT
OBVIOUS THAT TRANSIT HAD NOTHING OF WHICH IT WAS DEPRIVED BY THE
CONTESTED ORDER. 

THE JUDGMENT OF THE THREE-JUDGE DISTRICT COURT IS REVERSED AND THE
PROCEEDING IS REMANDED WITH DIRECTIONS TO DISMISS THE COMPLAINT. 
REVERSED. 

FN1  SEC. 212(A), 49 STAT. 555, 52 STAT. 1238, 54 STAT. 924: 

"CERTIFICATES, PERMITS, AND LICENSES SHALL BE EFFECTIVE FROM THE DATE
SPECIFIED THEREIN, AND SHALL REMAIN IN EFFECT UNTIL SUSPENDED OR
TERMINATED AS HEREIN PROVIDED.  ANY SUCH CERTIFICATE, PERMIT, OR
LICENSE MAY, UPON APPLICATION OF THE HOLDER THEREOF, IN THE DISCRETION
OF THE COMMISSION, BE AMENDED OR REVOKED, IN WHOLE OR IN PART, OR MAY
UPON COMPLAINT, OR ON THE COMMISSION'S OWN INITIATIVE, AFTER NOTICE AND
HEARING, BE SUSPENDED, CHANGED, OR REVOKED, IN WHOLE OR IN PART, FOR
WILLFUL FAILURE TO COMPLY WITH ANY PROVISION OF THIS PART, OR WITH ANY
LAWFUL ORDER, RULE, OR REGULATION OF THE COMMISSION PROMULGATED
THEREUNDER, OR WITH ANY TERM, CONDITION, OR LIMITATION OF SUCH
CERTIFICATE, PERMIT, OR LICENSE:  ...  "    FN2  40 M.C.C. 457, 473: 

"IT IS OUR OPINION, ORIGINALLY INDICATED IN THE KANSAS CITY SOUTHERN
CASE AND CONFIRMED BY NEARLY A DECADE OF EXPERIENCE IN MOTOR-CARRIER
REGULATIONS, THAT THE PRESERVATION OF THE INHERENT ADVANTAGES OF MOTOR
CARRIER SERVICE AND OF HEALTHY COMPETITION BETWEEN RAILROADS AND MOTOR
CARRIERS AND THE PROMOTION OF ECONOMICAL AND EFFICIENT TRANSPORTATION
SERVICE BY ALL MODES OF TRANSPORTATION AND OF SOUND CONDITIONS IN THE
TRANSPORTATION AND AMONG THE SEVERAL CARRIERS, IN SHORT THE
ACCOMPLISHMENT OF THE PURPOSES FORMING THE NATIONAL TRANSPORTATION
POLICY, REQUIRE THAT, EXCEPT WHERE UNUSUAL CIRCUMSTANCES PREVAIL, EVERY
GRANT TO A RAILROAD OR TO A RAILROAD AFFILIATE OF AUTHORITY TO OPERATE
AS A COMMON CARRIER BY MOTOR VEHICLE OR TO ACQUIRE SUCH AUTHORITY BY
PURCHASE OR OTHERWISE SHOULD BE SO CONDITIONED AS DEFINITELY TO LIMIT
THE FUTURE SERVICE BY MOTOR VEHICLE TO THAT WHICH IS AUXILIARY TO, OR
SUPPLEMENTAL OF, TRAIN SERVICE." 

FN3  SEC. 213(A), 49 STAT. 556: 

"PROVIDED, HOWEVER, THAT IF A CARRIER OTHER THAN A MOTOR CARRIER IS
AN APPLICANT, OR ANY PERSON WHICH IS CONTROLLED BY SUCH A CARRIER OTHER
THAN A MOTOR CARRIER OR AFFILIATED THEREWITH WITHIN THE MEANING OF
UNLESS IT FINDS THAT THE TRANSACTION PROPOSED WILL PROMOTE THE PUBLIC
INTEREST BY ENABLING SUCH CARRIER OTHER THAN A MOTOR CARRIER TO USE
SERVICE BY MOTOR VEHICLE TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL
NOT UNDULY RESTRAIN COMPETITION." 

THIS PROVISO REMAINS IN THE INTERSTATE COMMERCE ACT, SEC. 5(2)(B). 
54 STAT. 906. 

FN4  "WE APPRECIATE, OF COURSE, THAT SECTION 207, UNLIKE SECTION 5,
DOES NOT REQUIRE OF A RAILROAD, UNDERTAKING TO PROVE THAT PUBLIC
CONVENIENCE AND NECESSITY REQUIRE A MOTOR SERVICE WHICH IT PROPOSES,
ANY GREATER MEASURE OF PROOF THAN IS REQUIRED OF ANY OTHER APPLICANT. 
BUT THIS DOES NOT MEAN THAT IT IS AS EASY FOR ONE APPLICANT, AS FOR
ANOTHER, TO PROVE NEED FOR A PROPOSED SERVICE OR THAT THIS COMMISSION
CONSIDERING AN APPLICATION BY A RAILROAD FOR AUTHORITY TO PERFORM AN
ALL-MOTOR SERVICE, NOT IN AID OF ITS RAIL SERVICE BUT IN COMPETITION
THEREWITH AND WITH OTHER MOTOR CARRIERS, CAN IGNORE THE CIRCUMSTANCE
THAT SUCH APPLICANT IS A RAILROAD WHOSE OPERATION AS PROPOSED WOULD
ORDINARILY BE (INCONSISTENT) WITH THE PRINCIPLES UNDERLYING THE
NATIONAL TRANSPORTATION POLICY.  IN OTHER WORDS, A RAILROAD APPLICANT
FOR AUTHORITY TO OPERATE AS A COMMON CARRIER BY MOTOR VEHICLE, THOUGH
REQUIRED TO DO NO MORE THAN PROVE, AS ANY OTHER APPLICANT, THAT ITS
SERVICE IS REQUIRED BY PUBLIC CONVENIENCE AND NECESSITY, HAS A SPECIAL
BURDEN, NOT BY REASON OF ANY ATTITUDE OR ACTION ON OUR PART, BUT BY
REASON OF THE VERY CIRCUMSTANCE THAT IT IS A RAILROAD.  WHERE IT FAILS
TO SHOW SPECIAL CIRCUMSTANCES NEGATIVING ANY DISADVANTAGE TO THE PUBLIC
FROM THIS FACT, A GRANT OF AUTHORITY TO SUPPLY MOTOR SERVICE OTHER THAN
SERVICE AUXILIARY TO AND SUPPLEMENTAL OF TRAIN SERVICE IS NOT
JUSTIFIED."  ROCK ISLAND MOTOR TRANSIT CO., 40 M.C.C. 457, 471, 473
474; CF. KANSAS CITY SOUTHERN TRANSPORT CO., 10 M.C.C. 221, 237. 

FN5  APPELLEES DEDUCE THESE LIMITATIONS FROM THE NEW CONDITION (1),
P. 425, SUPRA.  AS THE COMMISSION DOES NOT CHALLENGE THE STATEMENT, AND
THE RECORD SHOWS THAT THE COMMISSION SO TREATS SUCH CONDITIONS, WE
ACCEPT THAT INTERPRETATION.  55 M.C.C. 567, 581 FF.  SEE 41 M.C.C. 721,
726; TEXT AT N. 19, INFRA. 

FN6  SEC. 207:  "PROVIDED, HOWEVER, THAT NO SUCH CERTIFICATE SHALL BE
ISSUED TO ANY COMMON CARRIER OF PASSENGERS BY MOTOR VEHICLE FOR
OPERATIONS OVER OTHER THAN A REGULAR ROUTE OR ROUTES, AND BETWEEN FIXED
TERMINI, EXCEPT AS SUCH CARRIERS MAY BE AUTHORIZED TO ENGAGE IN SPECIAL
OR CHARTER OPERATIONS." 

FN7  CRESCENT EXPRESS LINES V. UNITED STATES, 320 U.S. 401. 

FN8  MOTOR BUS AND MOTOR TRUCK OPERATION, 140 I.C.C. 685, 721, 745,
749; COORDINATION OF MOTOR TRANSPORTATION, 182 I.C.C. 263, 336 FF.; AND
SEE REPORT OF THE FEDERAL COORDINATOR OF TRANSPORTATION ON THE
REGULATION OF TRANSPORTATION AGENCIES OTHER THAN RAILROADS, S. DOC. NO.
152, 73D CONG., 2D SESS. 15 FF., 35.  REPORT OF THE FEDERAL COORDINATOR
OF TRANSPORTATION ON TRANSPORTATION LEGISLATION, H.R. DOC. NO. 89, 74TH
CONG., 1ST SESS. 6. 

FN9  PROVISO TO SEC. 5.  SEE COMMISSIONER EASTMAN, HEARINGS BEFORE
SUB-COMMITTEE OF THE COMMITTEE ON INTERSTATE COMMERCE, UNITED STATES
SENATE, ON S. 3606, 75TH CONG., 3D SESS. 23: 

"THE REASON FOR THAT PROVISO WAS THAT AT THE TIME WHEN THIS ACT WAS
UNDER CONSIDERATION BY YOUR COMMITTEE, THERE WAS A FEELING ON THE PART
OF MANY THAT RAILROADS, FOR EXAMPLE, OUGHT NOT BE PERMITTED TO ACQUIRE
MOTOR CARRIERS AT ALL.  IT WAS POINTED OUT, IN OPPOSITION TO THAT VIEW,
THAT THERE WERE MANY CASES WHERE RAILROADS COULD USE MOTOR VEHICLES TO
GREAT ADVANTAGE IN THEIR OPERATIONS, IN SUBSTITUTION FOR RAIL SERVICE,
AS MANY OF THEM ARE NOW DOING.  MANY RAILROAD MEN, FOR EXAMPLE, FEEL
THAT THE OPERATION OF WAY TRAINS HAS BECOME OBSOLETE; THAT THE MOTOR
VEHICLE CAN HANDLE SUCH TRAFFIC BETWEEN SMALL STATIONS MUCH MORE
ECONOMICALLY AND CONVENIENTLY THAN CAN BE DONE BY A WAY TRAIN; AND THE
MOTOR VEHICLES ARE BEING USED IN THAT WAY BY MANY RAILROADS.  THE SAME
IS TRUE OF MANY TERMINAL OPERATIONS.  THE MOTOR VEHICLE IS A MUCH MORE
FLEXIBLE UNIT THAN A LOCOMOTIVE SWITCHING CARS, AND IT CAN BE USED TO
GREAT ADVANTAGE AND WITH GREAT ECONOMY IN MANY RAILROAD OPERATIONS." 

AND SEE STATEMENTS OF SEN. WHEELER, 79 CONG. REC. 5655, AND REP.
SADOWSKI, 79 CONG. REC. 12206.  CF. INTERSTATE COMMERCE COMMISSION V.
PARKER, 326 U.S. 60.  SEE ALSO SEC. 212(B). 

FN10  E.G., KANSAS CITY SOUTHERN TRANSPORT CO., 10 M.C.C. 221, 53D
ANNUAL REPORT OF THE INTERSTATE COMMERCE COMMISSION 107, NOVEMBER 1,
1939; PENNSYLVANIA TRUCK LINES, INC., 5 M.C.C. 9, 51ST ANNUAL REPORT 68
69.  THE COMMISSION, IN APPENDIX B TO ITS BRIEF IN NOS. 38 AND 39,
UNITED STATES V. TEXAS & PACIFIC MOTOR TRANSPORT CO., DECIDED TODAY,
POST, PAGE 450, HAS COLLECTED 120 CASES, BEGINNING IN 1936 WITH VOL. 1
OF THE MOTOR CARRIER REPORTS, DEALING WITH THE ISSUANCE OF CERTIFICATES
TO MOTOR SUBSIDIARIES OF RAIL CARRIERS.  THE GREAT BULK OF THESE CASES
MAKES SPECIFIC REFERENCE TO THE AUXILIARY AND SUPPLEMENTAL STANDARD. 

FN11  SEE MECK AND BOGUE, FEDERAL REGULATION OF MOTOR CARRIER
UNIFICATION, 50 YALE L.J. 1376, 1408 FF.  THE COMMISSION'S VIEW IS
EVIDENCED IN PENNSYLVANIA TRUCK LINES, INC., 1 M.C.C. 101, 111: 

"WHILE WE HAVE NO DOUBT THAT THE RAILROAD COULD, WITH THE RESOURCES AT
ITS COMMAND, EXPAND AND IMPROVE THE PARTNERSHIP SERVICE AND THAT, SO
FAR AS NUMBERS ARE CONCERNED, THERE IS NOW AN AMPLE SUPPLY OF
INDEPENDENT OPERATORS IN THE TERRITORY FOR THE FURNISHING OF
COMPETITIVE SERVICE, WE ARE NOT CONVINCED THAT THE WAY TO MAINTAIN FOR
THE FUTURE HEALTHFUL COMPETITION BETWEEN RAIL AND TRUCK SERVICE IS TO
GIVE THE RAILROADS FREE OPPORTUNITY TO GO INTO THE KIND OF TRUCK
SERVICE WHICH IS STRICTLY COMPETITIVE WITH, RATHER THAN AUXILIARY TO,
THEIR RAIL OPERATIONS.  THE LANGUAGE OF SECTION 213, ABOVE QUOTED, IS
EVIDENCE THAT CONGRESS WAS NOT CONVINCED THAT THIS SHOULD BE DONE. 
TRUCK SERVICE WOULD NOT, IN OUR JUDGMENT, HAVE DEVELOPED TO THE
EXTRAORDINARY EXTENT TO WHICH IT HAS DEVELOPED IF IT HAD BEEN UNDER
RAILROAD CONTROL.  IMPROVEMENT IN THE PARTICULAR SERVICE NOW FURNISHED
BY THE PARTNERSHIP MIGHT FLOW FROM CONTROL BY THE RAILROAD, BUT THE
QUESTION INVOLVED IS BROADER THAN THAT AND CONCERNS THE FUTURE OF TRUCK
SERVICE GENERALLY.  THE FINANCIAL AND SOLICITING RESOURCES OF THE
RAILROADS COULD EASILY BE SO USED IN THIS FIELD THAT THE DEVELOPMENT OF
INDEPENDENT SERVICE WOULD BE GREATLY HAMPERED AND RESTRICTED, AND WITH
ULTIMATE DISADVANTAGE TO THE PUBLIC." 

FN12  IN ORIGINAL APPLICATIONS UNDER SEC. 207, THE FACT THAT THE
APPLICANT IS A RAILROAD BRINGS UP OTHER QUESTIONS OF TRANSPORTATION
POLICY.  SEE NOTE 4, SUPRA. 

FN13  THE VARIANT "AUXILIARY TO OR SUPPLEMENTARY TO" APPEARS TO BE
USED INTERCHANGEABLY WITH "AUXILIARY TO AND SUPPLEMENTAL OF." 

FN14 "2.  THAT THE SERVICE TO BE RENDERED BY THE BARKER MOTOR
FREIGHT, INCORPORATED, IN THE EVENT THE PERTINENT APPLICATIONS NOW
PENDING BEFORE THE COMMISSION ARE SUBSEQUENTLY APPROVED BY US, BE
CONFINED TO SERVICE AUXILIARY AND SUPPLEMENTARY TO THAT PERFORMED BY
THE PENNSYLVANIA RAILROAD COMPANY IN ITS RAIL OPERATIONS AND IN
TERRITORY PARALLEL AND ADJACENT TO ITS RAIL LINES." 

FN15  "PROVIDED, HOWEVER, (1) THAT OPERATIONS UNDER THE AUTHORITY
HEREIN GRANTED SHALL BE CONFINED BETWEEN THE POINTS AND OVER THE ROUTES
DESCRIBED IN THE APPENDIX, (2) THAT THE AUTHORITY HEREIN GRANTED SHALL
NOT BE CONSTRUED TO INCLUDE THE RIGHT OF RENDERING SERVICE FROM OR TO,
OR THE INTERCHANGING OF TRAFFIC AT, ANY POINT OTHER THAN A STATION OF
THE PENNSYLVANIA RAILROAD COMPANY, ...  " 5 M.C.C. AT 15. 

FN16  "UNDER THE BARKER CERTIFICATE APPLICANT PERFORMS TWO DISTINCT
TYPES OF SERVICE; (1) SUBSTITUTED SERVICE FOR THE RAILROAD, AND (2)
INDEPENDENT MOTOR CARRIER SERVICE FOR THE GENERAL PUBLIC.  THE LATTER
SERVICE INVOLVES THE TRANSPORTATION OF GENERAL COMMODITIES, IN ANY
QUANTITY, UNDER MOTOR CARRIER BILLS OF LADING AND TARIFFS AND AT MOTOR
CARRIER RATES.  ...  SUBSTITUTED SERVICE WAS BEING PERFORMED BY
APPLICANT AT THE TIME OF THE HEARING IN JANUARY, 1945, OVER SEVERAL
ROUTES MOST OF WHICH RADIATE OUT OF PITTSBURGH AND COLUMBUS. 
INDEPENDENT SERVICE ALSO WAS BEING PERFORMED AT THAT TIME ONLY OVER
REGULAR ROUTES EXTENDING PRINCIPALLY BETWEEN THE FOLLOWING POINTS:  ...
APPLICANT HAS ITS OWN AGENTS AND REPRESENTATIVES WHO DEAL WITH THE
SHIPPERS IN THE PERFORMANCE OF THE INDEPENDENT SERVICE.  IN JANUARY
1945, 200 UNITS OF EQUIPMENT WERE BEING USED IN INDEPENDENT SERVICE AND
500 IN SUBSTITUTED SERVICE." 

FN17  "THE ONLY DEFINITE RESTRICTION ON THE OPERATING AUTHORITY WHICH
WAS IMPOSED IN THE BARKER CASE AND LATER CASES HAS BEEN DESIGNED TO
CONFINE THE MOTOR-CARRIER OPERATIONS ACQUIRED TO THE TERRITORY OF THE
RAILROAD THROUGH LIMITING THE RIGHTS SO AS TO AUTHORIZE SERVICE ONLY AT
STATIONS ON THE RAILROAD.  ALTHOUGH, AT TIMES, A CONDITION FORMERLY WAS
SOMETIMES INCLUDED IN ACQUISITION CASES TO THE EFFECT THAT SERVICE TO
BE RENDERED SHOULD BE 'AUXILIARY AND SUPPLEMENTARY' TO THE RAILROAD'S
SERVICE, THERE HAS BEEN NO INDICATION IN THE REPORTS THAT SUCH
CONDITION WAS INTENDED TO PROHIBIT RENDITION OF ALL MOTOR-CARRIER
SERVICE DIRECTLY FOR THE SHIPPING PUBLIC UNDER THE OPERATING RIGHTS IN
ADDITION TO, IN SUBSTITUTION FOR, AND IN LIEU OF, THE PARENT RAILROAD'S
SERVICE, OR TO RESTRICT THE OPERATION SOLELY TO ONE IN COMBINATION WITH
THE RAILROAD'S OPERATION; NOR IS IT OUR UNDERSTANDING THAT IT HAS BEEN
SO CONSTRUED BY THE CARRIERS." 

FN18  "THE SCOPE OF THE OPERATIONS PROPOSED TO BE RETAINED IS BROADER
THAN INTENDED BY THE CONDITIONS WE STATED IN OUR PRIOR REPORT.  HENCE,
IT WILL BE OF ADVANTAGE TO THE PARTIES IN THIS AND LATER PROCEEDINGS IF
WE HERE AMPLIFY THE MEANING OF THOSE CONDITIONS.  APPROVED OPERATIONS
ARE THOSE WHICH ARE AUXILIARY OR SUPPLEMENTARY TO TRAIL SERVICE. 
EXCEPT AS HEREINAFTER INDICATED, NONAPPROVED OPERATIONS ARE THOSE WHICH
OTHERWISE COMPETE WITH THE RAILROAD ITSELF, THOSE WHICH COMPETE WITH AN
ESTABLISHED MOTOR CARRIER, OR WHICH INVADE TO A SUBSTANTIAL DEGREE A
TERRITORY ALREADY ADEQUATELY SERVED BY ANOTHER RAIL CARRIER. 

"APPROVED OPERATIONS ARE BEST ILLUSTRATED BY THE SUBSTITUTION OF
TRUCKS FOR PEDDLER OR WAY-FREIGHT SERVICE IN WHAT IS COMMONLY CALLED
'STATION-TO-STATION' SERVICE." 

FN19  "CONDITION 1(SAME AS CONDITION 1, P. 425, SUPRA) LIMITS THE
CHARACTER OF SERVICE TO BE PERFORMED BY THE PETITIONER TO THAT WHICH IS
AUXILIARY TO OR SUPPLEMENTAL OF THE RAIL SERVICE OF THE RAILWAY.  IT
LIMITS THE SERVICE TO BE PERFORMED BY TRUCK TO THE TRANSPORTATION OF
THE RAIL TRAFFIC OF THE RAILWAY.  IT PERMITS THE PUBLIC TO RECEIVE AN
IMPROVED RAIL SERVICE THROUGH THE USE OF TRUCKS INSTEAD OF TRAINS AS A
MEANS OF FULFILLING THE RAILWAY'S UNDERTAKING TO TRANSPORT. 
PETITIONER'S STATUS AS A COMMON CARRIER BY MOTOR VEHICLE IS NOT
DEPENDENT UPON ITS HAVING DIRECT DEALINGS WITH THE SHIPPING PUBLIC. 
WILLETT CO. OF INDIANA, INC., EXTENSION - ILL., IND., AND KY., 21
M.C.C. 405.  ITS SERVICE IS NECESSARILY LIMITED TO POINTS SERVED BY THE
RAILWAY, HENCE CONDITION 2.  CONDITION 1 PERMITS ALL-MOTOR MOVEMENTS IN
THE HANDLING OF RAIL TRAFFIC AT RAILROAD RATES AND ON RAILROAD BILLS OF
LADING.  TO AND FROM CERTAIN POINTS ON SEGMENTS OF THE RAIL LINES, THE
IMPROVED SERVICE WAS TO BE ACCOMPLISHED BY PERFORMING THE MOVEMENTS
PARTLY BY TRAIN AND PARTLY BY MOTOR VEHICLE, AN AUXILIARY OR
SUPPLEMENTAL SERVICE COORDINATED WITH THE TRAIN SERVICE, HENCE
CONDITION 3.  SINCE PETITIONER'S CERTIFICATES LIMIT THE SERVICE TO BE
PERFORMED TO THAT WHICH IS AUXILIARY TO OR SUPPLEMENTAL OF THE RAIL
SERVICE OF THE RAILWAY, IT IS WITHOUT AUTHORITY TO ENGAGE IN OPERATIONS
UNCONNECTED WITH THE RAIL SERVICE AND, ACCORDINGLY, MAY NOT PROPERLY BE
A PARTY TO TARIFFS CONTAINING ALL-MOTOR OR JOINT RATES, NOR PARTICIPATE
IN A DIRECTORY PROVIDING FOR THE SUBSTITUTION OF TRAIN SERVICE FOR
MOTOR-VEHICLE SERVICE AT ITS OPTION.  TO THE EXTENT PETITIONER IS
PERFORMING OR PARTICIPATING IN ALL-MOTOR MOVEMENTS ON THE BILLS OF
LADING OF A MOTOR CARRIER AND AT ALL-MOTOR RATES, IT IS PERFORMING A
MOTOR SERVICE IN COMPETITION WITH THE RAIL SERVICE AND THE SERVICE OF
EXISTING MOTOR CARRIERS; AND, TO THE EXTENT IT IS SUBSTITUTING RAIL
SERVICE FOR MOTOR-VEHICLE SERVICE, THE RAIL SERVICE IS AUXILIARY TO OR
SUPPLEMENTAL OF THE MOTOR-VEHICLE SERVICE RATHER THAN THE MOTOR-VEHICLE
SERVICE BEING AUXILIARY TO OR SUPPLEMENTAL OF RAIL SERVICE."  P. 726. 

FN20  SEE KANSAS CITY SOUTHERN TRANSPORT CO., 28 M.C.C. 5, 24; ROCK
ISLAND MOTOR TRANSIT CO. EXTENSION, ELDON, IOWA, 33 M.C.C. 349, 361;
ROCK ISLAND MOTOR TRANSIT CO. - PURCHASE - WHITE LINE, 40 M.C.C. 457,
478.    "AS PREVIOUSLY STATED, FROM THE DATE OF THE DECISION IN THE
BARKER CASE TO SHORTLY BEFORE ENACTMENT OF THE TRANSPORTATION ACT,
1940, THE PRINCIPLES THERE RECOGNIZED AND APPLIED, CONTROLLED THE
DISPOSITION OF PRACTICALLY EVERY RAIL-MOTOR ACQUISITION CASE.  HOWEVER,
BEGINNING WITH FRISCO TRANSP.  CO. - PURCHASE - REDDISH, 35 M.C.C. 132,
AND CONTINUING UNTIL QUITE RECENTLY, THE PRACTICE OF SPECIFICALLY
RESERVING THE RIGHT LATER TO IMPOSE SUCH RESTRICTIONS AS MIGHT BE
NECESSARY TO INSURE THAT FUTURE OPERATIONS UNDER THE ACQUIRED AUTHORITY
SHOULD BE LIMITED TO THE RENDITION OF SERVICE AUXILIARY TO, OR
SUPPLEMENTAL OF, TRAIN SERVICE WAS NOT FOLLOWED.  WITH SUCH DEPARTURE
FROM THE FORMER PRACTICE THERE ALSO APPEARS TO HAVE DEVELOPED A
TENDENCY IN RAIL-MOTOR ACQUISITION PROCEEDINGS TO TREAT THE BARKER CASE
RESTRICTIONS AS GEOGRAPHICAL OR TERRITORIAL ONLY IN THEIR INTENT RATHER
THAN AS SUBSTANTIVE LIMITATIONS UPON THE CHARACTER OF THE SERVICE WHICH
MIGHT BE RENDERED BY A RAILROAD OR ITS AFFILIATE UNDER ANY ACQUIRED
RIGHT."  40 M.C.C. AT 469. 

FN21  ROCK ISLAND MOTOR TRANSIT CO. EXTENSION - WELLMAN, IOWA, 31
M.C.C. 643.  SEE 55 M.C.C. 567, 584. 

FN22  AND CF. NATIONAL RESOURCES PLANNING BOARD, TRANSPORTATION AND
NATIONAL POLICY (1942), H.R. DOC. 883, 77TH CONG., 2D SESS., PP. 155,
156: 

"IN THE PRESENT HIGHLY DYNAMIC STATE OF THE TRANSPORTATION INDUSTRY,
IT WOULD BE NATIONAL FOLLY TO PLACE THE AGENCIES IN ANY KIND OF STRAIT
JACKET.  EACH MODE NEEDS AN OPPORTUNITY TO GROW AND CHANGE WITH THE
TIMES.  NO DRASTIC MOVE TO ALLOCATE TRAFFIC ARBITRARILY OR TO ACHIEVE A
SIMILAR END BY INDIRECT MEANS SHOULD BE PERMITTED PRIVATE CONCERNS OR
FORCED UPON THEM BY GOVERNMENT.  THE PUBLIC HAS STRUGGLED LONG AND
TAXED ITSELF HEAVILY TO DEVELOP THE NEWER AGENCIES AND TO REVIVE THE
OLD FOR THE PURPOSE OF WEAKENING THE MONOPOLISTIC POSITION ONCE
OCCUPIED BY THE RAILROADS AND OF IMPROVING AND EXPANDING THE SERVICES
OFFERED TO USERS.  IT WOULD BE UNFORTUNATE IF PUBLIC POLICY OR PRIVATE
PRACTICE WERE NOW EMPLOYED TO HALT AND REVERSE THIS TREND, AND THUS TO
TURN BACK THE HANDS OF THE TRANSPORTATION CLOCK TO AN EARLIER TIME." 

FN23  "CERTAIN OF TRANSIT'S PRESENT FREIGHT OPERATIONS ARE SUBJECT TO
THE LIMITATION THAT SERVICE SHALL BE SOLELY THAT WHICH IS AUXILIARY TO
AND SUPPLEMENTAL OF THE TRAIN SERVICE OF THE RAILROAD, AND EITHER THAT
FREIGHT SO HANDLED SHALL HAVE AN IMMEDIATELY PRIOR OR SUBSEQUENT RAIL
HAUL BY THE RAILROAD, OR THAT IT SHALL NOT BE TRANSPORTED FROM, TO, OR
BETWEEN MORE THAN ONE OF SPECIFIED KEY POINTS.  HOWEVER, ITS ROUTE
BETWEEN ATLANTIC AND OMAHA, NEBR., OVER U.S. HIGHWAY 6, SERVING ALL
POINTS WHICH ARE STATIONS ON THE RAILROAD, IS PART OF A ROUTE TO AND
FROM CHICAGO, ILL., VIA DES MOINES, ACQUIRED PURSUANT TO AUTHORITY
GRANTED IN ROCK ISLAND M. TRANSIT CO. - PURCHASE - WHITE LINE M. FRT.,
5 M.C.C. 451, AND IS NOT SO RESTRICTED."  CHICAGO, ROCK ISLAND & PAC.
R. CO. - PURCHASE - J. H. FREDERICKSON, ETC., 39 M.C.C. 824(NO PRINTED
REPORT). 

FN24  UNITED STATES V. SEATRAIN LINES, 329 U.S. 424; BOULEVARD
TRANSIT LINES V. UNITED STATES, 77 F.SUPP.  594, 595; SMITH BROS.,
REVOCATION OF CERTIFICATE, 33 M.C.C. 465, 472. 

FN25  THE PHRASE IS DERIVED FROM ALTON R. CO. V. UNITED STATES, 315
U.S. 15, 22, FOLLOWED IN UNITED STATES V. CAROLINA FREIGHT CARRIERS
CORP., 315 U.S. 475, 481. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE JACKSON AND MR.
JUSTICE BURTON DISSENT AND WOULD AFFIRM THE DISTRICT COURT'S OPINION. 
THEY ARE OF THE OPINION THAT THE COMMISSION PARTIALLY REVOKED THE
CERTIFICATES INVOLVED IN A MANNER NOT AUTHORIZED BY THE INTERSTATE
COMMERCE ACT. 
..END :






UNITED STATES V. TEXAS & PAC. CO., 340 U.S. 450 


ARGUED NOVEMBER 7-8, 1950.  - DECIDED FEBRUARY 26, 1951.  - 87 F.SUPP. 
107, REVERSED. 


UNDER SEC. 213(NOW SEC. 5) OF THE INTERSTATE COMMERCE ACT, PROVIDING
FOR THE ACQUISITION OF OPERATING RIGHTS FROM OTHER CARRIERS, AND UNDER
SEC. 207, PROVIDING FOR NEW OPERATIONS, THE INTERSTATE COMMERCE
COMMISSION HAD ISSUED CERTIFICATES OF CONVENIENCE AND NECESSITY TO A
MOTOR CARRIER AFFILIATE OF A RAILROAD.  IN EACH OF THE CERTIFICATES,
THE COMMISSION RESERVED THE RIGHT TO IMPOSE FURTHER RESTRICTIONS TO
CONFINE THE MOTOR CARRIER'S OPERATIONS TO SERVICE "AUXILIARY TO, OR
SUPPLEMENTAL OF, RAIL SERVICE."  HELD:  THE COMMISSION HAD POWER, IN
SUBSEQUENT PROCEEDINGS, TO MODIFY THE CERTIFICATES SO AS IN SUBSTANCE
TO BAR THE MOTOR CARRIER FROM ISSUING ITS OWN BILLS OF LADING OR
PERFORMING ALL-MOTOR SERVICE UNDER ALL-MOTOR LOCAL RATES OR ALL-MOTOR
JOINT RATES WITH CONNECTING MOTOR CARRIERS, FROM SUBSTITUTING RAIL
SERVICE FOR MOTOR SERVICE, AND FROM PARTICIPATING IN MOTOR-CARRIER
TARIFFS.  UNITED STATES V. ROCK ISLAND MOTOR TRANSIT CO., ANTE, P.
419.  PP. 451-458. 

1.  THE ACTION OF THE COMMISSION IN THUS MODIFYING THE CERTIFICATES
WAS NOT INVALID AS IN CONFLICT WITH SEC. 216 OF THE TRANSPORTATION ACT
OF 1940; NOR INVALID AS NOT COMPLYING WITH THE REVOCATION PROCEDURE
PRESCRIBED BY SEC. 212 OF THE INTERSTATE COMMERCE ACT; NOR
UNCONSTITUTIONAL AS CONFISCATORY.  PP. 457-458. 

2.  IN A CERTIFICATE ISSUED TO A MOTOR-CARRIER AFFILIATE OF A
RAILROAD, THE COMMISSION MAY RESERVE THE RIGHT TO IMPOSE FURTHER
RESTRICTIONS TO CONFINE THE MOTOR CARRIER'S OPERATIONS TO SERVICE WHICH
IS AUXILIARY TO, AND SUPPLEMENTAL OF, RAIL SERVICE, WHETHER THE
CERTIFICATE BE ISSUED UNDER SEC. 207 FOR A NEW OPERATION OR IN
ACQUISITION PROCEEDINGS UNDER SECS. 5 AND 213.  PP. 458-459. 

3.  THE ORDER OF THE COMMISSION WAS NOT WITHOUT SUPPORT IN THE
EVIDENCE.  PP. 459-460. 

4.  IN THE HEARING BY THE COMMISSION, THE MOTOR CARRIER WAS NOT
DENIED PROCEDURAL DUE PROCESS.  PP. 460-461. 

UNITED STATES ET AL. V. TEXAS & PACIFIC MOTOR TRANSPORT CO. 

NO. 38.  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS* . 

*TOGETHER WITH NO. 39, REGULAR COMMON CARRIER CONFERENCE OF AMERICAN
TRUCKING ASSOCIATIONS, INC. V. TEXAS & PACIFIC MOTOR TRANSPORT CO.,
ALSO ON APPEAL TO THE SAME COURT. 

IN A PROCEEDING TO SET ASIDE TWO ORDERS OF THE INTERSTATE COMMERCE
COMMISSION, THE THREE-JUDGE DISTRICT COURT SET ASIDE THE ORDERS AND
ENTERED A PERMANENT INJUNCTION.  87 F.SUPP.  107.  THE UNITED STATES
AND THE INTERSTATE COMMERCE COMMISSION (NO. 38) AND AN INTERVENOR (NO.
39) APPEALED.  REVERSED, P. 461. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS, BY THE INTERSTATE COMMERCE COMMISSION, AND BY THE
INTERVENOR, REGULAR COMMON CARRIER CONFERENCE OF AMERICAN TRUCKING
ASSOCIATIONS, INC., FROM THE JUDGMENT OF A THREE-JUDGE FEDERAL DISTRICT
COURT SETTING ASIDE TWO ORDERS OF THE INTERSTATE COMMERCE COMMISSION,
AND ENTERING A PERMANENT INJUNCTION, RAISE QUESTIONS SIMILAR TO THOSE
DISCUSSED IN NO. 25, UNITED STATES V. ROCK ISLAND MOTOR TRANSIT CO.,
ANTE, P. 419, DECIDED TODAY.  THE QUESTIONS RELATE TO THE POWER OF THE
COMMISSION TO BAN SERVICE PRACTICES THERETOFORE PERMITTED UNDER
CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY PREVIOUSLY ISSUED TO A
COMMON CARRIER BY MOTOR VEHICLE.  THE COMMISSION ACTED UNDER AUTHORITY
RESERVED IN THE CERTIFICATE TO IMPOSE ADDITIONAL RESTRICTIONS TO INSURE
THAT THE MOTOR CARRIER'S OPERATIONS WILL BE AUXILIARY TO OR
SUPPLEMENTAL OF THE OPERATIONS OF ITS PARENT COMMON CARRIER BY RAIL. 

THE TEXAS AND PACIFIC MOTOR TRANSPORT COMPANY IS A WHOLLY OWNED
SUBSIDIARY OF THE TEXAS AND PACIFIC RAILWAY, OPERATING A SYSTEM OF
REGULAR ROUTES FOR THE CARRIAGE OF FREIGHT, FROM NEW ORLEANS TO EL
PASO, TEXAS, AND LOVINGTON, NEW MEXICO, ROUGHLY PARALLELING THE LINES
OF THE RAILWAY AND ITS SUBSIDIARIES.  TRANSPORT WAS ORGANIZED IN 1929
TO PROVIDE A LOCAL PICK-UP AND DELIVERY SERVICE IN CONNECTION WITH RAIL
TRANSPORTATION BETWEEN POINTS ON THE LINES OF THE RAILWAY.  ITS FIRST
OVER-THE-ROAD COMMON-CARRIER OPERATION, BETWEEN MONAHANS, TEXAS, AND
LOVINGTON, NEW MEXICO, WAS INAUGURATED JUST BEFORE THE EFFECTIVE DATE
OF THE MOTOR CARRIER ACT OF 1935.  IT EXTENDED ITS OPERATIONS BY
OBTAINING CERTIFICATES OF CONVENIENCE AND NECESSITY FROM THE
COMMISSION, BOTH UNDER SEC. 213 OF THE 1935 ACT, NOW SEC. 5 OF THE
INTERSTATE COMMERCE ACT, PROVIDING FOR ACQUISITION OF ESTABLISHED
RIGHTS BY PURCHASE FROM OTHER CARRIERS ("GRANDFATHER" RIGHTS); AND
UNDER SEC. 207 OF THE INTERSTATE COMMERCE ACT, PROVIDING FOR NEW
OPERATIONS. 

BETWEEN JULY 1939 AND NOVEMBER 1942, THE COMMISSION ISSUED SIXTEEN
CERTIFICATES TO TRANSPORT, COVERING VARIOUS SEGMENTS OF ITS PRESENTLY
OPERATING ROUTES.  FN1  IN ALL THE CERTIFICATES THE COMMISSION RESERVED
THE RIGHT TO IMPOSE FURTHER RESTRICTIONS IN ORDER TO CONFINE
TRANSPORT'S OPERATION TO SERVICE "AUXILIARY TO, OR SUPPLEMENTAL OF,
RAIL SERVICE."  THIS CONDITION WAS EXPRESSED IN EITHER ONE OF THE TWO
FORMS SET OUT IN THE MARGIN.  FN2  IN ADDITION, EACH CERTIFICATE
CONTAINED ONE OR MORE, USUALLY MORE, FURTHER CONDITIONS:  (1) THAT THE
SERVICE TO BE PERFORMED WAS TO BE "AUXILIARY TO, OR SUPPLEMENTAL OF"
THE RAIL SERVICE.  FN3  (2) THAT ONLY RAILWAY STATION POINTS WERE TO BE
SERVED.  FN4  (3) EITHER THAT (A) ALL SHIPMENTS SHOULD BE MADE ON A
THROUGH RAIL BILL OF LADING, INCLUDING A PRIOR OR SUBSEQUENT RAIL
MOVEMENT; FN5  OR (B) THAT NO SHIPMENTS SHOULD BE MADE BETWEEN CERTAIN
"KEY POINTS" ON THE RAIL LINE, OR THROUGH MORE THAN ONE OF THEM.  FN6
AND (4) THAT THE CONTRACTUAL ARRANGEMENTS BETWEEN TRANSPORT AND RAILWAY
BE SUBJECT TO MODIFICATION BY THE COMMISSION.  FN7 

THE IRREGULAR INCIDENCE OF THESE CONDITIONS IN THE CERTIFICATES MAY
BE ACCOUNTED FOR BY THE SEGMENTARY FASHION IN WHICH TRANSPORT BUILT UP
ITS SYSTEM OF ROUTES, OVER A PERIOD OF SEVERAL YEARS.  THEY WERE NOT
RECONSIDERED AS A GROUP BY THE COMMISSION UNTIL 1943, WHEN, IN RESPONSE
TO A PETITION BY TRANSPORT, TO DETERMINE WHAT MODIFICATION SHOULD BE
MADE IN ITS CERTIFICATE NO. MC-50544(SUB-NO. 11), PARTICULARLY IN
REGARD TO SERVICE FOR FREIGHT BETWEEN EL PASO AND SIERRA BLANCA, TEXAS,
FOR THE TEXAS AND NEW ORLEANS RAILROAD COMPANY, IT REOPENED NINE OF THE
CERTIFICATE PROCEEDINGS TO CONSIDER WHETHER TRANSPORT COULD JOIN WITH
OTHER MOTOR CARRIERS IN RATES, SOME OF WHICH PROVIDED FOR SUBSTITUTING
RAIL SERVICE FOR MOTOR SERVICE.  THE COMMISSION HELD THAT 

"SINCE PETITIONER'S CERTIFICATES LIMIT THE SERVICE TO BE PERFORMED TO
THAT WHICH IS AUXILIARY TO OR SUPPLEMENTAL OF THE RAIL SERVICE OF THE
RAILWAY (IN SOME THE LIMITATION WAS BY RESERVATION), IT IS WITHOUT
AUTHORITY TO ENGAGE IN OPERATIONS UNCONNECTED WITH THE RAIL SERVICE
AND, ACCORDINGLY, MAY NOT PROPERLY BE A PARTY TO TARIFFS CONTAINING ALL
MOTOR OR JOINT RATES, NOR PARTICIPATE IN A DIRECTORY PROVIDING FOR THE
SUBSTITUTION OF TRAIN SERVICE FOR MOTOR-VEHICLE SERVICE AT ITS OPTION. 

TO THE EXTENT PETITIONER IS PERFORMING OR PARTICIPATING IN ALL-MOTOR
MOVEMENTS ON THE BILLS OF LADING OF A MOTOR CARRIER AND AT ALL-MOTOR
RATES, IT IS PERFORMING A MOTOR SERVICE IN COMPETITION WITH THE RAIL
SERVICE AND THE SERVICE OF EXISTING MOTOR CARRIERS; AND, TO THE EXTENT
IT IS SUBSTITUTING RAIL SERVICE FOR MOTOR-VEHICLE SERVICE, THE RAIL
SERVICE IS AUXILIARY TO OR SUPPLEMENTAL OF THE MOTOR-VEHICLE SERVICE
RATHER THAN THE MOTOR-VEHICLE SERVICE BEING AUXILIARY TO OR
SUPPLEMENTAL OF RAIL SERVICE."  FN8 

THE COMMISSION DID NOT ISSUE ANY AFFIRMATIVE ORDER, BUT DIRECTED
TRANSPORT TO MODIFY ITS SERVICE IN ACCORDANCE WITH THE FINDINGS, WITHIN
A REASONABLE TIME. 

TRANSPORT AND RAILWAY THEN PETITIONED JOINTLY FOR RECONSIDERATION, OR
FOR FURTHER HEARINGS, INCLUDING HEARINGS ON CERTAIN OTHER CERTIFICATES;
AND, ALTHOUGH THE TWO PETITIONERS LATER ATTEMPTED TO WITHDRAW THEIR
PETITION ON THE GROUND THAT PERMISSION TO FILE A JOINT TARIFF HAD BEEN
GRANTED, THE COMMISSION NEVERTHELESS ORDERED THAT THE PROCEEDINGS BE
REOPENED IN ALL SIXTEEN CERTIFICATES, AND THREE TEMPORARY AUTHORITIES,
"SOLELY TO DETERMINE WHAT, IF ANY, CHANGES OR MODIFICATIONS SHOULD BE
MADE IN THE CONDITIONS CONTAINED IN THE OUTSTANDING CERTIFICATES OF
PUBLIC CONVENIENCE AND NECESSITY  ...  " 

AFTER A HEARING AT WHICH TRANSPORT AND RAILWAY APPEARED, BUT REFUSED
TO INTRODUCE ANY EVIDENCE, AND AFTER ORAL ARGUMENT ON THE EXAMINER'S
REPORT, THE COMMISSION ON JANUARY 22, 1948, ORDERED THAT ALL SIXTEEN
CERTIFICATES BE MODIFIED TO INCLUDE UNIFORMLY THE SUBSTANCE OF THE FIVE
CONDITIONS SET OUT ABOVE, SPECIFICALLY AS FOLLOWS: 

"1.  THE SERVICE TO BE PERFORMED BY APPLICANT SHALL BE LIMITED TO
SERVICE WHICH IS AUXILIARY TO, OR SUPPLEMENTAL OF, THE TRAIN SERVICE OF
THE TEXAS AND PACIFIC RAILWAY COMPANY, THE WEATHERFORD, MINERAL WELLS
AND NORTHWESTERN RAILWAY COMPANY, OR TEXAS-NEW MEXICO RAILWAY COMPANY,
AND, BETWEEN EL PASO AND SIERRA BLANCA, TEX., THE TRAIN SERVICE OF
TEXAS AND NEW ORLEANS RAILROAD COMPANY, HEREINAFTER CALLED THE
RAILWAYS. 

"2.  APPLICANT SHALL NOT RENDER ANY SERVICE TO OR FROM ANY POINT NOT
A STATION ON A RAIL LINE OF THE RAILWAYS. 

"3.  NO SHIPMENTS SHALL BE TRANSPORTED BY APPLICANT BETWEEN ANY OF
THE FOLLOWING POINTS, OR THROUGH, OR TO, OR FROM, MORE THAN ONE OF SAID
POINTS:  NEW ORLEANS, ALEXANDRIA, AND SHREVEPORT, LA., TEXARKANA, TEX.
ARK., FORT WORTH-DALLAS, (CONSIDERED AS ONE), ABILENE, MONAHANS, AND EL
PASO, TEX. 

"4.  ALL CONTRACTUAL ARRANGEMENTS BETWEEN APPLICANT AND THE RAILWAYS
SHALL BE REPORTED TO US AND SHALL BE SUBJECT TO REVISION IF AND AS WE
FIND IT TO BE NECESSARY, IN ORDER THAT SUCH ARRANGEMENTS SHALL BE FAIR
AND EQUITABLE TO THE PARTIES. 

"5.  SUCH FURTHER SPECIFIC CONDITIONS AS IN THE FUTURE WE MAY FIND
NECESSARY TO IMPOSE IN ORDER TO INSURE THAT THE SERVICE SHALL BE
AUXILIARY TO, OR SUPPLEMENTAL OF, THE TRAIN SERVICE OF THE RAILWAYS." 
FN9 

THE EFFECT ON APPELLEE WAS TO BAR IT FROM ISSUING ITS OWN BILLS OF
LADING OR PERFORMING ALL-MOTOR SERVICE UNDER ALL-MOTOR LOCAL RATES OR
ALL-MOTOR JOINT RATES WITH CONNECTING MOTOR CARRIERS, OR SUBSTITUTING
RAIL SERVICE FOR MOTOR SERVICE, AND IT COULD NOT BE A PARTY TO SUCH
TARIFFS.  FN10  PRIOR TO THESE PROCEEDINGS THE APPELLEE HAD ISSUED ITS
OWN BILLS OF LADING AND PARTICIPATED IN MOTOR-CARRIER TARIFFS.  THE
DISTRICT COURT FOUND THE VALUE OF THE CERTIFICATES, $65,000, WOULD BE
DESTROYED AND $240,000 ANNUAL REVENUE LOST. 

A PETITION FOR RECONSIDERATION OF THIS ORDER, AND FOR ORAL ARGUMENT
BEFORE THE ENTIRE COMMISSION, WAS DENIED ON MAY 9, 1949.  TRANSPORT
THEREUPON BROUGHT THIS SUIT IN THE FEDERAL DISTRICT COURT, SEEKING TO
SET ASIDE THE COMMISSION'S ORDERS OF JANUARY 22, 1948, AND MAY 9, 1949,
AND TO ENJOIN THEIR ENFORCEMENT.  IN THE DISTRICT COURT PROCEEDINGS THE
REGULAR COMMON CARRIER CONFERENCE OF AMERICAN TRUCKING ASSOCIATIONS
INTERVENED ON BEHALF OF THE COMMISSION.  AFTER HEARING, THE DISTRICT
COURT MADE FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND ENTERED A
JUDGMENT SETTING ASIDE THE COMMISSION'S ORDERS, AND PERMANENTLY
ENJOINING IT FROM IMPOSING ANY CONDITION ON TRANSPORT'S CERTIFICATES
"IN SUCH MANNER AS WILL PROHIBIT PETITIONER FROM: 

"A.  FILING, PUBLISHING AND MAINTAINING COMMON CARRIER MOTOR RATES AS
PROVIDED BY STATUTE IN THE CASE OF COMMON CARRIER MOTOR CARRIERS
GENERALLY; 

"B.  INTERCHANGING TRAFFIC WITH OTHER COMMON CARRIER MOTOR CARRIERS
ON JOINT MOTOR RATES; 

"C.  ISSUING ITS OWN BILLS OF LADING AND TENDERING ITS SERVICE TO THE
PUBLIC GENERALLY ON ITS OWN CONTRACTS OF SHIPMENT; 

"D.  TRANSPORTING TRAFFIC TO, THROUGH, FROM OR BETWEEN ANY SO-CALLED
'KEY POINTS' ON THAT PART OF ITS ROUTE COVERED BY INTERSTATE
CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY, TO WHICH NO 'KEY
POINT' RESTRICTION ATTACHED ON ISSUANCE OF SUCH CERTIFICATES, 

OR IN SUCH MANNER AS WILL RESTRICT PETITIONER TO SHIP ON RAIL RATES
OR ON RAILROAD BILLS OF LADING." 

FROM THIS JUDGMENT THE COMMISSION AND THE INTERVENOR, COMMON CARRIER
CONFERENCE, APPEAL HERE. 

THE DISTRICT COURT, 87 F.SUPP.  107, 112, REASONED THAT THE
OPERATIONS OF TRANSPORT WERE AT ALL TIMES AND IN ALL WAYS AUXILIARY TO
AND SUPPLEMENTAL OF THE RAIL OPERATIONS AND THEREFORE COULD NOT BE
RESTRICTED AS ATTEMPTED.  THE CONNOTATION OF AUXILIARY AND
SUPPLEMENTARY TO THE TRIAL COURT WAS ONLY A RESTRICTION LIMITING
SERVICE TO RAIL POINTS.  WITHOUT DEALING SPECIFICALLY WITH THE
RESERVATION TO IMPOSE FURTHER CONDITIONS RESTRICTING THE MOTOR
CARRIER'S SERVICE TO COORDINATED RAIL SERVICE, THE DISTRICT COURT
DECIDED THAT THE COMMISSION'S ORDER RESTRICTING THE SERVICE COULD NOT
BE VALID IN VIEW OF SEC. 216, TRANSPORTATION ACT OF 1940, 49 STAT. 558,
54 STAT. 924.  THAT SECTION ALLOWS MOTOR COMMON CARRIERS TO ESTABLISH
THROUGH ROUTES, JOINT RATES, PRACTICES AND DIVISION OF CHARGES WITH
OTHER CARRIERS BY MOTOR, RAIL OR WATER.  FN11  IT HELD, TOO, THAT THE
COMMISSION'S ACTION WAS IN ESSENCE A REVOCATION IN PART OF A
CERTIFICATE AND UNLAWFUL EXCEPT UNDER CONDITIONS PRESCRIBED BY SEC.
212, 49 STAT. 555, 54 STAT. 924, AND UNCONSTITUTIONAL BECAUSE
CONFISCATORY. 

TRANSPORT HERE SUPPORTS THE SOUNDNESS OF THE REASONS GIVEN BY THE
THREE-JUDGE DISTRICT COURT FOR ITS INJUNCTION AND SUPPLEMENTS THEM BY
CONTENTIONS THAT THE COMMISSION'S ORDER WAS WITHOUT SUPPORT IN THE
EVIDENCE AND THAT TRANSPORT WAS NOT ACCORDED DUE PROCESS OF LAW AT THE
HEARING OF OCTOBER 17, 1944, 47 M.C.C. 753, 755.  IN VIEW OF OUR
DECISION OF TODAY UPHOLDING THE COMMISSION IN NO. 25, UNITED STATES V.
ROCK ISLAND MOTOR TRANSIT CO., ANTE, P. 419, ALL REASONS FOR AFFIRMING
THE JUDGMENT BELOW MAY BE PROMPTLY REJECTED. 

SO FAR AS THE ABOVE ISSUES RELIED UPON BY THE DISTRICT COURT FOR ITS
INJUNCTION ARE CONCERNED, THEY SEEM TO HAVE BEEN RESOLVED IN FAVOR OF
THE GOVERNMENT BY OUR OPINION IN THE ROCK ISLAND CASE.  THIS PROCEEDING
INVOLVES CERTIFICATES FOR NEW ROUTES UNDER SEC. 207.  NO SUCH
CERTIFICATES OR APPLICATIONS WERE IN THAT CASE.  THE OPINION, HOWEVER,
CONSIDERED THE COMMISSION'S PRACTICE IN SEC. 207 PROCEEDINGS AND STATED
THAT IT WAS THE SAME AS IN SECS. 5 AND 213 ACQUISITION PROCEEDINGS.  WE
NOW HOLD THAT THE SAME CONSIDERATIONS JUSTIFY THE RESERVATION IN ISSUE
HERE.  SEE N. 2, SUPRA. 

TRANSPORT'S POSITION THAT THE ORDER IN QUESTION WAS WITHOUT SUPPORT
IN THE EVIDENCE IS BASED ON THE THEORY THAT AS EVIDENCE WAS TAKEN IN
THE ORIGINAL APPLICATIONS THAT RESULTED IN THE NECESSARY FINDINGS UNDER
SECS. 213 OF THE MOTOR CARRIER ACT AND 5 OF THE TRANSPORTATION ACT OF
1940 FOR CERTIFICATES TO RAILROAD MOTOR CARRIER AFFILIATES, CHANGES IN
PRACTICES CANNOT NOW BE MADE WITHOUT EVIDENCE THAT THE FORMERLY
PERMITTED PRACTICES HAD BEEN INCONSISTENT WITH THE PUBLIC INTEREST AND
DID UNDULY RESTRAIN COMPETITION.  AMERICAN TRUCKING ASSOCIATIONS, INC.
V. UNITED STATES, 326 U.S. 77, 86, AND INTERSTATE COMMERCE COMMISSION
V. LOUISVILLE & NASHVILLE R. CO., 227 U.S. 88, 91.  FN12 

THE LOUISVILLE & NASHVILLE CASE REQUIRED A FULL HEARING AND THE
PRIVILEGE OF INTRODUCING TESTIMONY BEFORE THE ROAD'S RATES WERE SET
ASIDE AS UNREASONABLE.  THE COMMISSION WAS TAKING THE POSITION THAT THE
HEPBURN ACT ALLOWED IT TO SET ASIDE RATES AFTER A "HEARING" WITHOUT
EVIDENCE.  THE AMERICAN TRUCKING CASE DEALT WITH THE ISSUANCE OF A
SERIES OF CERTIFICATES BY THE COMMISSION TO A RAILROAD-AFFILIATED MOTOR
CARRIER AFTER REFUSAL TO ADMIT EVIDENCE OF THE FLOW OF TRUCK TRAFFIC
BETWEEN VARIOUS LOCALITIES ALONG THE PARENT RAILROAD, AND OF THE EFFECT
OF THE EXISTING AND PROSPECTIVE RAILROAD-AFFILIATED MOTOR CARRIERS ON
THE OVER-THE-ROAD CARRIERS.  ON APPEAL FROM AN AFFIRMANCE BY A DISTRICT
COURT, WE REVERSED THE COMMISSION.    THIS SITUATION, HOWEVER, DIFFERS
FROM THOSE REFERRED TO BY TRANSPORT IN THAT THE COMMISSION HAS REOPENED
THE PROCEEDINGS, AFTER THEY WERE STARTED BY TRANSPORT FOR AN
INTERPRETATION OF ITS RIGHT TO FILE AND MAINTAIN A MOTOR COMMON-CARRIER
TARIFF.  HEARINGS WERE HAD IN 1942 AT DALLAS, AT WHICH APPELLEE'S
WITNESSES GAVE TESTIMONY AS TO THE FREIGHT INTERCHANGE BETWEEN APPELLEE
AND OTHER MOTOR CARRIERS AND THE EXISTENCE OF TARIFFS, ETC.  AFTER THE
REPORT OF THE COMMISSION REFERRED TO ON PP. 454-455, TRANSPORT AND THE
TEXAS AND PACIFIC RAILWAY PETITIONED FOR RECONSIDERATION BY THE
COMMISSION, SETTING OUT THE FACTS OF THEIR CURRENT OPERATIONS, AND
ADDRESSING THEMSELVES PARTICULARLY TO THE ELIMINATION OF THE PRIOR OR
SUBSEQUENT RAIL-HAUL CONDITION.  THEREAFTER THE PROCEEDINGS WERE
REOPENED TO DETERMINE WHAT CHANGES OR MODIFICATIONS SHOULD BE MADE. 
ANOTHER HEARING WAS HELD, OCTOBER 17, 1944, AND REPORT MADE.  AT THAT
HEARING TRANSPORT APPEARED BUT REFUSED TO INTRODUCE EVIDENCE.  THE
EXAMINER EXAMINED AN OFFICIAL OF TRANSPORT AS TO THE NATURE AND EXTENT
OF TRANSPORT'S OPERATIONS.  THIS EVIDENCE DEVELOPED THE FACT THAT
TRANSPORT OPERATED BOTH ON MOTOR-CARRIER AND RAIL RATES UNDER ITS OWN
BILLS OF LADING IN FULL COMPETITION WITH OTHER MOTOR CARRIERS.  THUS
THERE APPEARS IN THE RECORD ADEQUATE EVIDENCE OF THE CIRCUMSTANCES OF
TRANSPORT'S OPERATIONS. 

UPON THE DUE-PROCESS POINT WE APPROVE THE RULING OF THE COMMISSION. 
IT FOLLOWS: 

"APPLICANT ARGUES THAT THE NOTICE SETTING THE PROCEEDINGS FOR FURTHER
HEARING DID NOT INFORM IT OR THE OTHER PARTIES OF THE NATURE OF THE
ISSUES TO BE MET, OR GIVE THEM SUFFICIENT TIME TO PREPARE TO MEET THE
ISSUES; AND THAT THE HEARING, IN VIEW OF THE REQUEST FOR ITS
CANCELLATION, WAS IN THE NATURE OF AN EX PARTE PROCEEDING.  WE ARE NOT
IMPRESSED WITH APPLICANT'S ARGUMENT THAT IT WAS UNABLE TO FORESEE THE
ISSUES.  THE NOTICE IN QUESTION STATED THAT THE FURTHER HEARING WAS FOR
THE PURPOSE OF DETERMINING WHAT CHANGES, IF ANY, SHOULD BE MADE IN THE
CONDITIONS, AND THUS PLACED THE CONDITIONS THEMSELVES IN ISSUE.  ONE OF
THESE IS CONDITION 5 OR 5A, WHICH IN ITSELF WAS ADEQUATE NOTICE TO
APPLICANT AND THE OTHER PARTIES THAT THE PRIMARY PURPOSE OF THE FURTHER
HEARING WOULD BE TO DETERMINE, AS PROVIDED FOR IN THAT CONDITION,
WHETHER IT IS NECESSARY TO CHANGE OR MODIFY THE EXISTING CONDITIONS OR
TO ADD OTHERS SO AS EFFECTIVELY TO RESTRICT APPLICANT'S OPERATIONS TO
SERVICE WHICH IS AUXILIARY TO OR SUPPLEMENTAL OF RAIL SERVICE. 
APPLICANT WAS GIVEN THE OPPORTUNITY OF PRESENTING EVIDENCE TO SHOW THAT
NO NEED EXISTS FOR A CHANGE IN ITS PRESENT CONDITIONS; HOWEVER, NOT
ONLY DID IT CHOOSE NOT TO OFFER SUCH EVIDENCE, BUT IT OBJECTED TO THE
RECEIPT OF ANY EVIDENCE WITH RESPECT THERETO.  IN THE CIRCUMSTANCES,
THE EXAMINER PROPERLY DENIED ITS MOTION TO DISCONTINUE THE FURTHER
HEARING AND TO WITHDRAW ITS WITNESS, AND PROPERLY OVERRULED ITS
OBJECTION TO THE ADDUCTION OF TESTIMONY THROUGH SUCH WITNESS."  FN13 

THE JUDGMENT OF THE THREE-JUDGE DISTRICT COURT IS REVERSED AND THE
PROCEEDINGS REMANDED WITH DIRECTIONS TO DISMISS THE COMPLAINT. 
REVERSED. 

FN1  SIXTEEN PROCEEDINGS ARE COVERED BY I.C.C. DOCKET NUMBER MC
50544, AND VARIOUS SUBNUMBERS, SET OUT IN APPENDIX A TO TEXAS & PACIFIC
MOTOR TRANSPORT CO. COMMON CARRIER APPLICATION, 47 M.C.C. 753, 764. 
TRANSPORT WAS ALSO OPERATING UNDER CERTAIN TEMPORARY AUTHORITIES, NOS.
MC-50544(SUB-NOS.  21-TA, 24-TA, AND 30-TA), WHICH EXPIRED BEFORE THE
ISSUANCE OF THE COMMISSION'S ORDERS UNDER CONSIDERATION HERE. 

FN2  "5.  SUCH FURTHER SPECIFIC CONDITIONS AS WE, IN THE FUTURE, MAY
FIND IT NECESSARY TO IMPOSE IN ORDER TO RESTRICT APPLICANT'S OPERATION
TO SERVICE WHICH IS AUXILIARY TO, OR SUPPLEMENTAL OF, RAIL SERVICE. 

"5A.  THE AUTHORITY HEREIN GRANTED SHALL BE SUBJECT TO SUCH FURTHER
LIMITATIONS OR RESTRICTIONS AS THE COMMISSION MAY HEREAFTER FIND IT
NECESSARY TO IMPOSE IN ORDER TO RESTRICT APPLICANT'S OPERATION TO
SERVICE WHICH IS AUXILIARY TO, OR SUPPLEMENTAL OF, TRAIN SERVICE OF THE
RAILWAY, AND IN ORDER TO INSURE THAT THE SERVICE RENDERED SHALL NOT
UNDULY RESTRAIN COMPETITION."  47 M.C.C. 753, 766. 

FN3  "1.  THE SERVICE TO BE PERFORMED BY APPLICANT SHALL BE LIMITED
TO SERVICE WHICH IS AUXILIARY TO, OR SUPPLEMENTAL .OF, RAIL SERVICE OF
THE TEXAS AND PACIFIC RAILWAY, OR IN CERTAIN CASES OF ITS SUBSIDIARY
RAIL LINES, (OR OF TEXAS-NEW MEXICO RAILWAY COMPANY) HEREIN CALLED THE
RAILWAY."  IBID. 

FN4  "2.  APPLICANT SHALL NOT SERVE, OR INTERCHANGE TRAFFIC AT ANY
POINT NOT A STATION ON A RAIL LINE OF THE RAILWAY."  IBID. 

FN5  "3.  SHIPMENTS TRANSPORTED BY APPLICANT SHALL BE LIMITED TO
THOSE WHICH IT RECEIVES FROM OR DELIVERS TO THE RAILWAY UNDER A THROUGH
BILL OF LADING COVERING, IN ADDITION TO MOVEMENT BY APPLICANT, A PRIOR
OR SUBSEQUENT MOVEMENT BY RAIL. 

"3A.  SHIPMENTS TRANSPORTED BY APPLICANT SHALL BE LIMITED TO THOSE
WHICH IT RECEIVES FROM OR DELIVERS TO THE RAILWAY UNDER A THROUGH BILL
OF LADING COVERING IN ADDITION TO MOVEMENT BY APPLICANT, A PRIOR OR
SUBSEQUENT MOVEMENT BY RAIL, AND THOSE WHICH IT TRANSPORTS AS PARTS OF
THROUGH SHIPMENTS PRIOR OR SUBSEQUENT TO MOVEMENT BY RAIL UNDER
APPROPRIATE TRANSIT RULES."  IBID. 

FN6  "3B.  NO SHIPMENTS SHALL BE TRANSPORTED BY APPLICANT AS A COMMON
CARRIER BY MOTOR VEHICLE BETWEEN ANY OF THE FOLLOWING POINTS OR
THROUGH, OR TO, OR FROM MORE THAN ONE OF SAID POINTS:  FORT WORTH,
TEX., AND TEXARKANA, TEX.-ARK. 

"3C.  NO SHIPMENTS SHALL BE TRANSPORTED BY APPLICANT BETWEEN ANY OF
THE FOLLOWING POINTS OR THROUGH, OR TO, OR FROM MORE THAN ONE OF SAID
POINTS:  EL PASO AND PECOS, TEX."  IBID. 

FN7  "4.  ALL CONTRACTUAL ARRANGEMENTS BETWEEN APPLICANT AND THE
RAILWAY SHALL BE REPORTED TO US AND SHALL BE SUBJECT TO REVISION, IF
AND AS WE FIND IT TO BE NECESSARY IN ORDER THAT SUCH ARRANGEMENTS SHALL
BE FAIR AND SUITABLE TO THE PARTIES."  IBID. 

FN8  41 M.C.C. 721, 726. 

FN9  47 M.C.C. 753, 763-764. 

FN10  47 M.C.C. 753, 754, AND RULES 30, 107(A) AND 107(B) OF SUPP.
NO. 5 TO I.C.C. TARIFF CIRCULAR NO. 20.  SEE 41 M.C.C. 721, 726,
EXCERPTED AT NOTE 19, NO. 25, UNITED STATES V. ROCK ISLAND MOTOR
TRANSIT CO., DECIDED TODAY, ANTE, P. 419. 

FN11 "THUS, WHILE THE COMMISSION MIGHT PRESCRIBE THE POINTS TO BE
SERVED, IT COULD NOT FORBID THE PARTICIPATION IN JOINT RATES AND
THROUGH ROUTES FOR THE SIMPLE REASON THAT SUCH A PROVISION WOULD BE
INCONSISTENT WITH THE WORDING OF SEC. 216 OF THE ACT."  87 F.SUPP. 
107, 112. 

FN12  SEVERAL COMMISSION DECISIONS ON THE GENERAL NECESSITY OF
EVIDENCE TO SUPPORT RULINGS ARE ADDED.  GREYHOUND CORPORATION -
CONTROL, 50 M.C.C. 237, 242; SCANNELL - CONTROL, 50 M.C.C. 535, 541; C.
& D. MOTOR DELIVERY COMPANY - PURCHASE - HUBERT C. ELLIOTT, 38 M.C.C.
547, 553; JOINT N.E. MOTOR CARRIER ASSN., INC. V. ROSE AND WELLOFF, 43
M.C.C. 487, 488.  NONE BEAR ON SUCH A SITUATION AS THIS.  THEY RELATE
TO RESTRICTIONS ON THE ISSUE OR TRANSFER OF CERTIFICATES AND
REVOCATION. 

FN13  47 M.C.C. 753, 756. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE JACKSON AND MR.
JUSTICE BURTON DISSENT. 
..END :











TOUHY V. RAGEN, 340 U.S. 462 


NO. 83.  ARGUED NOVEMBER 27-28, 1950.  - DECIDED FEBRUARY 26, 1951.  -
180 F.2D 321, AFFIRMED. 


1.  PURSUANT TO DEPARTMENT OF JUSTICE ORDER NO. 3229, ISSUED BY THE
ATTORNEY GENERAL UNDER 5 U.S.C. SEC. 22, A SUBORDINATE OFFICIAL OF THE
DEPARTMENT OF JUSTICE REFUSED, IN A HABEAS CORPUS PROCEEDING BY A STATE
PRISONER, TO OBEY A SUBPOENA DUCES TECUM REQUIRING HIM TO PRODUCE
PAPERS OF THE DEPARTMENT IN HIS POSSESSION.  HELD:  ORDER NO. 3229 IS
VALID AND THE SUBORDINATE OFFICIAL PROPERLY REFUSED TO PRODUCE THE
PAPERS.  PP. 463-468. 

2.  THE TRIAL COURT NOT HAVING QUESTIONED THE SUBORDINATE OFFICIAL ON
HIS WILLINGNESS TO SUBMIT THE MATERIAL "TO THE COURT FOR DETERMINATION
AS TO ITS MATERIALITY TO THE CASE" AND WHETHER IT SHOULD BE DISCLOSED,
THE ISSUE OF HOW FAR THE ATTORNEY GENERAL COULD OR DID WAIVE ANY
CLAIMED PRIVILEGE AGAINST DISCLOSURE IS HERE IMMATERIAL.  P. 468. 

3.  ORDER NO. 3229 WAS A VALID EXERCISE BY THE ATTORNEY GENERAL OF
HIS AUTHORITY UNDER 5 U.S.C. SEC. 22 TO PRESCRIBE REGULATIONS NOT
INCONSISTENT WITH LAW FOR "THE CUSTODY, USE, AND PRESERVATION OF THE
RECORDS, PAPERS AND PROPERTY APPERTAINING TO" THE DEPARTMENT OF
JUSTICE.  BOSKE V. COMINGORE, 177 U.S. 459.  PP. 468-470. 

UNITED STATES EX REL. TOUHY V. RAGEN, WARDEN, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING BY A STATE PRISONER, THE DISTRICT COURT
ADJUDGED A SUBORDINATE OFFICIAL OF THE DEPARTMENT OF JUSTICE GUILTY OF
CONTEMPT FOR REFUSAL TO PRODUCE PAPERS REQUIRED BY A SUBPOENA* IDUCES
TECUM.  THE COURT OF APPEALS REVERSED.  180 F.2D 321.  THIS COURT
GRANTED CERTIORARI.  340 U.S. 806.  AFFIRMED, P. 470. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING BRINGS HERE THE QUESTION OF THE RIGHT OF A
SUBORDINATE OFFICIAL OF THE DEPARTMENT OF JUSTICE OF THE UNITED STATES
TO REFUSE TO OBEY A SUBPOENA DUCES TECUM ORDERING PRODUCTION OF PAPERS
OF THE DEPARTMENT IN HIS POSSESSION.  THE REFUSAL WAS BASED UPON A
REGULATION N1 ISSUED BY THE ATTORNEY GENERAL UNDER 5 U.S.C. SEC. 22. 
FN2 

PETITIONER, ROGER TOUHY, AN INMATE OF THE ILLINOIS STATE
PENITENTIARY, INSTITUTED A HABEAS CORPUS PROCEEDING IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AGAINST THE
WARDEN, ALLEGING HE WAS RESTRAINED IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FEDERAL CONSTITUTION.  IN THE COURSE OF THAT PROCEEDING A
SUBPOENA DUCES TECUM WAS ISSUED AND SERVED UPON GEORGE R. MCSWAIN, THE
AGENT IN CHARGE OF THE FEDERAL BUREAU OF INVESTIGATION AT CHICAGO,
REQUIRING THE PRODUCTION OF CERTAIN RECORDS WHICH, PETITIONER TOUHY
CLAIMS, CONTAINED EVIDENCE ESTABLISHING THAT HIS CONVICTION WAS BROUGHT
ABOUT BY FRAUD.  FN3  AT THE HEARING THAT CONSIDERED THE DUTY OF
SUBMISSION OF THE SUBPOENAED PAPERS, THE U.S. ATTORNEY MADE
REPRESENTATIONS TO THE COURT AND TO OPPOSING COUNSEL AS TO HOW FAR THE
ATTORNEY GENERAL WAS WILLING FOR HIS SUBORDINATES TO GO IN THE
PRODUCTION OF THE SUBPOENAED PAPERS.  THE SUGGESTIONS WERE NOT
ACCEPTED.  MR. MCSWAIN WAS THEN PLACED UPON THE WITNESS STAND AND
ORDERED TO BRING IN THE PAPERS.  HE PERSONALLY DECLINED TO PRODUCE THE
RECORDS IN THESE WORDS: 

"I MUST RESPECTFULLY ADVISE THE COURT THAT UNDER INSTRUCTIONS TO ME
BY THE ATTORNEY GENERAL THAT I MUST RESPECTFULLY DECLINE TO PRODUCE
THEM, IN ACCORDANCE WITH DEPARTMENT RULE NO. 3229."  FN4 

THEREUPON, THE JUDGE FOUND MR. MCSWAIN GUILTY OF CONTEMPT OF COURT IN
REFUSING TO PRODUCE THE RECORDS REFERRED TO IN THE SUBPOENA AND
SENTENCED HIM TO BE COMMITTED TO THE CUSTODY OF THE ATTORNEY GENERAL OF
THE UNITED STATES OR HIS AUTHORIZED REPRESENTATIVE UNTIL HE OBEYED THE
ORDER OF THE COURT OR WAS DISCHARGED BY DUE PROCESS OF LAW. 

ON APPEAL, THE COURT OF APPEALS REVERSED ON THE GROUND THAT
DEPARTMENT OF JUSTICE ORDER NO. 3229 WAS AUTHORIZED BY THE STATUTE AND 

"CONFERS UPON THE DEPARTMENT OF JUSTICE THE PRIVILEGE OF REFUSING TO
PRODUCE UNLESS THERE HAS BEEN A WAIVER OF SUCH PRIVILEGE."  180 F.2D
321 AT 327. 

THE COURT THEN CONSIDERED WHETHER OR NOT THE PRIVILEGE OF
NONDISCLOSURE WAS WAIVED.  IT QUOTED FROM SUPPLEMENT NO. 2 TO ORDER NO.
3229 THIS LANGUAGE: 

"IF QUESTIONED, THE OFFICER OR EMPLOYEE SHOULD STATE THAT THE
MATERIAL IS AT HAND AND CAN BE SUBMITTED TO THE COURT FOR DETERMINATION
AS TO ITS MATERIALITY TO THE CASE AND WHETHER IN THE BEST PUBLIC
INTERESTS THE INFORMATION SHOULD BE DISCLOSED.  THE RECORDS SHOULD BE
KEPT IN THE UNITED STATES ATTORNEY'S OFFICE OR SOME SIMILAR PLACE OF
SAFEKEEPING NEAR THE COURT ROOM.  UNDER NO CIRCUMSTANCES SHOULD THE
NAME OF ANY CONFIDENTIAL INFORMANT BE DIVULGED."  180 F.2D AT 328. 

THE COURT OF APPEALS SAID THAT "THIS LANGUAGE CONTEMPLATES SOME
CIRCUMSTANCES WHEN THE MATERIAL CALLED FOR MUST BE SUBMITTED 'TO THE
COURT FOR DETERMINATION AS TO ITS MATERIALITY TO THE CASE AND WHETHER
IN THE BEST PUBLIC INTERESTS THE INFORMATION SHOULD BE DISCLOSED.'" 
THE COURT FOUND, HOWEVER, THAT NO SUCH LIMITED DISCLOSURE WAS REQUESTED
BUT THAT MR. MCSWAIN WAS CALLED UPON "TO PRODUCE ALL DOCUMENTS AND
MATERIAL CALLED FOR IN THE SUBPOENA WITHOUT LIMITATION AND THAT AT NO
TIME WAS HE QUESTIONED" AS TO HIS WILLINGNESS TO SUBMIT THE PAPERS FOR
DETERMINATION AS TO MATERIALITY AND BEST PUBLIC INTERESTS. 
CONSEQUENTLY, HE WAS NOT GUILTY OF CONTEMPT UNLESS THE LAW REQUIRED THE
WITNESS TO MAKE UNLIMITED PRODUCTION.  THE COURT THOUGHT THAT, SINCE
THIS LAST WOULD MEAN THERE WAS NO PRIVILEGE IN THE DEPARTMENT TO REFUSE
PRODUCTION, SUCH A HOLDING SHOULD NOT BE MADE.  IT SAID: 

"SUBMISSION COULD ONLY HAVE BEEN REQUIRED TO THE EXTENT THE PRIVILEGE
HAD BEEN WAIVED BY THE ATTORNEY GENERAL AND FOR THE PURPOSE AND IN THE
SPECIFIC MANNER DESIGNATED."  180 F.2D AT 328. 

WE GRANTED CERTIORARI, 340 U.S. 806, TO DETERMINE THE VALIDITY OF THE
DEPARTMENT OF JUSTICE ORDER NO. 3229.  AMONG THE QUESTIONS DULY
PRESENTED BY THE PETITION FOR CERTIORARI WAS WHETHER IT IS PERMISSIBLE
FOR THE ATTORNEY GENERAL TO MAKE A CONCLUSIVE DETERMINATION NOT TO
PRODUCE RECORDS AND WHETHER HIS SUBORDINATES IN ACCORDANCE WITH THE
ORDER MAY LAWFULLY DECLINE TO PRODUCE THEM IN RESPONSE TO A SUBPOENA
DUCES TECUM. 

WE FIND IT UNNECESSARY, HOWEVER, TO CONSIDER THE ULTIMATE REACH OF
THE AUTHORITY OF THE ATTORNEY GENERAL TO REFUSE TO PRODUCE AT A COURT'S
ORDER THE GOVERNMENT PAPERS IN HIS POSSESSION, FOR THE CASE AS WE
UNDERSTAND IT RAISES NO QUESTION AS TO THE POWER OF THE ATTORNEY
GENERAL HIMSELF TO MAKE SUCH A REFUSAL.  THE ATTORNEY GENERAL WAS NOT
BEFORE THE TRIAL COURT.  IT IS TRUE THAT HIS SUBORDINATE, MR. MCSWAIN,
ACTED IN ACCORDANCE WITH THE ATTORNEY GENERAL'S INSTRUCTIONS AND A
DEPARTMENT ORDER.  BUT WE LIMIT OUR EXAMINATION TO WHAT THIS RECORD
SHOWS, TO WIT, A REFUSAL BY A SUBORDINATE OF THE DEPARTMENT OF JUSTICE
TO SUBMIT PAPERS TO THE COURT IN RESPONSE TO ITS SUBPOENA DUCES TECUM
ON THE GROUND THAT THE SUBORDINATE IS PROHIBITED FROM MAKING SUCH
SUBMISSION BY HIS SUPERIOR THROUGH ORDER NO. 3229.  FN5  THE VALIDITY
OF THE SUPERIOR'S ACTION IS IN ISSUE ONLY INSOFAR AS WE MUST DETERMINE
WHETHER THE ATTORNEY GENERAL CAN VALIDLY WITHDRAW FROM HIS SUBORDINATES
THE POWER TO RELEASE DEPARTMENT PAPERS.  NOR ARE WE HERE CONCERNED WITH
THE EFFECT OF A REFUSAL TO PRODUCE IN A PROSECUTION BY THE UNITED
STATES FN6  OR WITH THE RIGHT OF A CUSTODIAN OF GOVERNMENT PAPERS TO
REFUSE TO PRODUCE THEM ON THE GROUND THAT THEY ARE STATE SECRETS  FN7
OR THAT THEY WOULD DISCLOSE THE NAMES OF INFORMANTS.  FN8 

WE THINK THAT ORDER NO. 3229 IS VALID AND THAT MR. MCSWAIN IN THIS
CASE PROPERLY REFUSED TO PRODUCE THESE PAPERS.  WE AGREE WITH THE
CONCLUSION OF THE COURT OF APPEALS THAT SINCE MR. MCSWAIN WAS NOT
QUESTIONED ON HIS WILLINGNESS TO SUBMIT THE MATERIAL "TO THE COURT FOR
DETERMINATION AS TO ITS MATERIALITY TO THE CASE" AND WHETHER IT SHOULD
BE DISCLOSED, THE ISSUE OF HOW FAR THE ATTORNEY GENERAL COULD OR DID
WAIVE ANY CLAIMED PRIVILEGE AGAINST DISCLOSURE IS NOT MATERIAL IN THIS
CASE. 

DEPARTMENT OF JUSTICE ORDER NO. 3229, NOTE 1, SUPRA, WAS PROMULGATED
UNDER THE AUTHORITY OF 5 U.S.C. SEC. 22.  THAT STATUTE APPEARS IN ITS
PRESENT FORM IN REVISED STATUTES SEC. 161, AND CONSOLIDATES SEVERAL
OLDER STATUTES RELATING TO INDIVIDUAL DEPARTMENTS.  SEE, E.G., 16 STAT.
163.  WHEN ONE CONSIDERS THE VARIETY OF INFORMATION CONTAINED IN THE
FILES OF ANY GOVERNMENT DEPARTMENT AND THE POSSIBILITIES OF HARM FROM
UNRESTRICTED DISCLOSURE IN COURT, THE USEFULNESS, INDEED THE NECESSITY,
OF CENTRALIZING DETERMINATION AS TO WHETHER SUBPOENAS DUCES TECUM WILL
BE WILLINGLY OBEYED OR CHALLENGED IS OBVIOUS.  HENCE, IT WAS
APPROPRIATE FOR THE ATTORNEY GENERAL, PURSUANT TO THE AUTHORITY GIVEN
HIM BY 5 U.S.C. SEC. 22, TO PRESCRIBE REGULATIONS NOT INCONSISTENT WITH
LAW FOR "THE CUSTODY, USE, AND PRESERVATION OF THE RECORDS, PAPERS, AND
PROPERTY APPERTAINING TO" THE DEPARTMENT OF JUSTICE, TO PROMULGATE
ORDER 3229. 

PETITIONER CHALLENGES THE VALIDITY OF THE ISSUE OF THE ORDER UNDER A
LEGAL DOCTRINE WHICH MAKES THE HEAD OF A DEPARTMENT RATHER THAN A COURT
THE DETERMINATOR OF THE ADMISSIBILITY OF EVIDENCE.  IN SUPPORT OF HIS
ARGUMENT THAT THE EXECUTIVE SHOULD NOT INVADE THE JUDICIAL SPHERE,
PETITIONER CITES WIGMORE, EVIDENCE (3D ED.), SEC. 2379, AND MARBURY V.
MADISON, 1 CRANCH 137.  BUT UNDER THIS RECORD WE ARE CONCERNED ONLY
WITH THE VALIDITY OF ORDER NO. 3229.  THE CONSTITUTIONALITY OF THE
ATTORNEY GENERAL'S EXERCISE OF A DETERMINATIVE POWER AS TO WHETHER OR
ON WHAT CONDITIONS OR SUBJECT TO WHAT DISADVANTAGES TO THE GOVERNMENT
HE MAY REFUSE TO PRODUCE GOVERNMENT PAPERS UNDER HIS CHARGE MUST AWAIT
A FACTUAL SITUATION THAT REQUIRES A RULING.  FN9  WE THINK ORDER NO.
3229 IS CONSISTENT WITH LAW.  THIS CASE IS RULED BY BOSKE V. COMINGORE,
177 U.S. 459.  FN10 

THAT CASE CONCERNED A COLLECTOR OF INTERNAL REVENUE ADJUDGED IN
CONTEMPT FOR FAILING TO FILE WITH HIS DEPOSITION COPIES OF A
DISTILLER'S REPORTS IN HIS POSSESSION AS A SUBORDINATE OFFICER OF THE
TREASURY.  THE INFORMATION WAS NEEDED IN LITIGATION IN A STATE COURT TO
COLLECT A STATE TAX.  THE REGULATION UPON WHICH THE COLLECTOR RELIED
FOR HIS REFUSAL WAS OF THE SAME GENERAL CHARACTER AS ORDER NO. 3229. 
FN11  AFTER REFERRING TO THE CONSTITUTIONAL AUTHORITY FOR THE ENACTMENT
OF R.S. SEC. 161, THE BASIS, AS 5 U.S.C. SEC. 22, FOR THE REGULATION
NOW UNDER CONSIDERATION, THIS COURT REACHED THE QUESTION OF WHETHER THE
REGULATION CENTRALIZING IN THE SECRETARY OF THE TREASURY THE DISCRETION
TO SUBMIT RECORDS VOLUNTARILY TO THE COURTS WAS INCONSISTENT WITH LAW,
P. 469.  IT CONCLUDED THAT THE SECRETARY'S RESERVATION FOR HIS OWN
DETERMINATION OF ALL MATTERS OF THAT CHARACTER WAS LAWFUL. 

WE SEE NO MATERIAL DISTINCTION BETWEEN THAT CASE AND THIS. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  DEPARTMENT OF JUSTICE ORDER NO. 3229, FILED MAY 2, 1946, 11 FED.
REG. 4920, READS: 

"PURSUANT TO AUTHORITY VESTED IN ME BY R.S. 161 U.S. CODE, TITLE 5,

"ALL OFFICIAL FILES, DOCUMENTS, RECORDS AND INFORMATION IN THE
OFFICES OF THE DEPARTMENT OF JUSTICE, INCLUDING THE SEVERAL OFFICES OF
UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION, UNITED STATES
MARSHALS, AND FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS, OR IN THE
CUSTODY OR CONTROL OF ANY OFFICER OR EMPLOYEE OF THE DEPARTMENT OF
JUSTICE, ARE TO BE REGARDED AS CONFIDENTIAL.  NO OFFICER OR EMPLOYEE
MAY PERMIT THE DISCLOSURE OR USE OF THE SAME FOR ANY PURPOSE OTHER THAN
FOR THE PERFORMANCE OF HIS OFFICIAL DUTIES, EXCEPT IN THE DISCRETION OF
THE ATTORNEY GENERAL, THE ASSISTANT TO THE ATTORNEY GENERAL, OR AN
ASSISTANT ATTORNEY GENERAL ACTING FOR HIM. 

"WHENEVER A SUBPOENA DUCES TECUM IS SERVED TO PRODUCE ANY OF SUCH
FILES, DOCUMENTS, RECORDS OR INFORMATION, THE OFFICER OR EMPLOYEE ON
WHOM SUCH SUBPOENA IS SERVED, UNLESS OTHERWISE EXPRESSLY DIRECTED BY
THE ATTORNEY GENERAL, WILL APPEAR IN COURT IN ANSWER THERETO AND
RESPECTFULLY DECLINE TO PRODUCE THE RECORDS SPECIFIED THERE IN, ON THE
GROUND THAT THE DISCLOSURE OF SUCH RECORDS IS PROHIBITED BY THIS
REGULATION." 

SUPPLEMENT NO. 2 TO THAT ORDER, DATED JUNE 6, 1947, PROVIDES IN
PART: 

"TO ALL UNITED STATES ATTORNEYS

           "PROCEDURE TO BE FOLLOWED UPON RECEIVING A SUBPOENA

                       DUCES TECUM 

"WHENEVER AN OFFICER OR EMPLOYEE OF THE DEPARTMENT IS SERVED WITH A
SUBPOENA DUCES TECUM TO PRODUCE ANY OFFICIAL FILES, DOCUMENTS, RECORDS
OR INFORMATION HE SHOULD AT ONCE INFORM HIS SUPERIOR OFFICER OF THE
REQUIREMENT OF THE SUBPOENA AND ASK FOR INSTRUCTIONS FROM THE ATTORNEY
GENERAL.  IF, IN THE OPINION OF THE ATTORNEY GENERAL, CIRCUMSTANCES OR
CONDITIONS MAKE IT NECESSARY TO DECLINE IN THE INTEREST OF PUBLIC
POLICY TO FURNISH THE INFORMATION, THE OFFICER OR EMPLOYEE ON WHOM THE
SUBPOENA IS SERVED WILL APPEAR IN COURT IN ANSWER THERETO AND
COURTEOUSLY STATE TO THE COURT THAT HE HAS CONSULTED THE DEPARTMENT OF
JUSTICE AND IS ACTING IN ACCORDANCE WITH INSTRUCTIONS OF THE ATTORNEY
GENERAL IN REFUSING TO PRODUCE THE RECORDS.  ... 

     .         .     .         .         . 

"  ...  IT IS NOT NECESSARY TO BRING THE REQUIRED DOCUMENTS INTO THE
COURT ROOM AND ON THE WITNESS STAND WHEN IT IS THE INTENTION OF THE
OFFICER OR EMPLOYEE TO COMPLY WITH THE SUBPOENA BY SUBMITTING THE
REGULATION OF THE DEPARTMENT (ORDER NO. 3229) AND EXPLAINING THAT HE IS
NOT PERMITTED TO SHOW THE FILES.  IF QUESTIONED, THE OFFICER OR
EMPLOYEE SHOULD STATE THAT THE MATERIAL IS AT HAND AND CAN BE SUBMITTED
TO THE COURT FOR DETERMINATION AS TO ITS MATERIALITY TO THE CASE AND
WHETHER IN THE BEST PUBLIC INTERESTS THE INFORMATION SHOULD BE
DISCLOSED.  THE RECORDS SHOULD BE KEPT IN THE UNITED STATES ATTORNEY'S
OFFICE OR SOME SIMILAR PLACE OF SAFE-KEEPING NEAR THE COURT ROOM. 
UNDER NO CIRCUMSTANCES SHOULD THE NAME OF ANY CONFIDENTIAL INFORMANT BE
DIVULGED." 

FN2  "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." 

FN3  THE SUBPOENA WAS ALSO ADDRESSED TO THE ATTORNEY GENERAL.  THERE
IS NO CONTENTION, HOWEVER, THAT THE ATTORNEY GENERAL WAS PERSONALLY
SERVED WITH THE SUBPOENA; NOR DID HE APPEAR.  SEE FED. RULES CIV.
PROC., 45. 

FN4  WE TAKE THIS ANSWER TO REFER TO BOTH THE ORIGINAL DEPARTMENT OF
JUSTICE ORDER NO. 3229 AND THE SUPPLEMENT. 

FN5  ALTHOUGH IN THIS RECORD THERE ARE INDICATIONS THAT THE U.S.
ATTORNEY WAS WILLING TO SUBMIT THE PAPERS TO THE JUDGE ALONE FOR HIS
DETERMINATION AS TO THEIR MATERIALITY, THE JUDGE REFUSED TO ACCEPT THE
PAPERS FOR EXAMINATION ON THAT BASIS.  THERE IS ALSO IN THE RECORD
INDICATION THAT THE U.S. ATTORNEY THOUGHT OF SUBMITTING THE PAPERS TO
THE COURT AND OPPOSING COUNSEL IN CHAMBERS BUT CHANGED HIS MIND.  FOR
OUR CONCLUSION NONE OF THESE FACTS ARE MATERIAL, AS THE FINAL ORDER
ADJUDGING MR. MCSWAIN GUILTY OF CONTEMPT WAS BASED, AS ABOVE INDICATED,
ON A REFUSAL BY MR. MCSWAIN TO PRODUCE, AS INSTRUCTED BY THE ATTORNEY
GENERAL IN ACCORDANCE WITH DEPARTMENT ORDER NO. 3229. 

FN6  CF. UNITED STATES V. ANDOLSCHEK, 142 F.2D 503. 

FN7  SEE WIGMORE, EVIDENCE (3D ED.), SEC. 2378. 

FN8  SEE WIGMORE, EVIDENCE (3D ED.), SEC. 2374. 

FN9  RESCUE ARMY V. MUNICIPAL COURT OF LOS ANGELES, 331 U.S. 549. 
FOR RELATIVELY RECENT CONSIDERATION OF THE PROBLEM UNDERLYING
GOVERNMENTAL PRIVILEGE AGAINST PRODUCING EVIDENCE, COMPARE DUNCAN V.
CAMMELL, LAIRD & CO., (1942) A.C. 624, WITH ROBINSON V. STATE OF SOUTH
AUSTRALIA, (1931) A.C. 704. 

FN10  THAT CASE HAS BEEN GENERALLY FOLLOWED.  SEE, E.G., EX PARTE
SACKETT, 74 F.2D 922; IN RE VALECIA CONDENSED MILK CO., 240 F. 310;
HARWOOD V. MCMURTRY, 22 F.SUPP.  572; STEGALL V. THURMAN, 175 F. 813;
WALLING V. COMET CARRIERS, INC., 3 F.R.D. 442, 443. 

FN11  THE FOLLOWING EXCERPTS WILL SHOW THE SIMILARITY: 

"WHENEVER SUCH SUBPOENAS SHALL HAVE BEEN SERVED UPON THEM, THEY WILL
APPEAR IN COURT IN ANSWER THERETO AND RESPECTFULLY DECLINE TO PRODUCE
THE RECORDS CALLED FOR, ON THE GROUND OF BEING PROHIBITED THEREFROM BY
THE REGULATIONS OF THIS DEPARTMENT.  ...  IN ALL CASES WHERE COPIES OF
DOCUMENTS OR RECORDS ARE DESIRED BY OR ON BEHALF OF PARTIES TO A SUIT,
WHETHER IN A COURT OF THE UNITED STATES OR ANY OTHER, SUCH COPIES SHALL
BE FURNISHED TO THE COURT ONLY AND ON A RULE OF THE COURT UPON THE
SECRETARY OF THE TREASURY REQUESTING THE SAME.  WHENEVER SUCH RULE OF
THE COURT SHALL HAVE BEEN OBTAINED COLLECTORS ARE DIRECTED TO CAREFULLY
PREPARE A COPY OF THE RECORD OR DOCUMENT CONTAINING THE INFORMATION
CALLED FOR AND SEND IT TO THIS OFFICE, WHEREUPON IT WILL BE TRANSMITTED
TO THE SECRETARY OF THE TREASURY WITH A REQUEST FOR ITS AUTHENTICATION,
UNDER THE SEAL OF THE DEPARTMENT, AND TRANSMISSION TO THE JUDGE OF THE
COURT CALLING FOR IT, UNLESS IT SHOULD BE FOUND THAT CIRCUMSTANCES OR
CONDITIONS EXIST WHICH MAKES IT NECESSARY TO DECLINE, IN THE INTEREST
OF THE PUBLIC SERVICE, TO FURNISH SUCH A COPY.'"  177 U.S. 461. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THE
JUDGMENT OF THE DISTRICT COURT SHOULD BE AFFIRMED. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

ISSUES OF FAR-REACHING IMPORTANCE THAT THE GOVERNMENT DEEMED TO BE
INVOLVED IN THIS CASE ARE NOW EXPRESSLY LEFT UNDECIDED.  BUT THEY ARE
QUESTIONS THAT LIE NEAR THE JUDICIAL HORIZON.  TO AVOID FUTURE
MISUNDERSTANDING, I DEEM IT IMPORTANT TO STATE MY UNDERSTANDING OF THE
OPINION OF THE COURT - WHAT IT DECIDES AND WHAT IT LEAVES WHOLLY OPEN -
ON THE BASIS OF WHICH I CONCUR IN IT. 

"THIS CASE," THE COURT HOLDS, "IS RULED" BY BOSKE V. COMINGORE, 177
U.S. 459.  I AGREE.  BOSKE V. COMINGORE DECIDED THAT THE SECRETARY OF
THE TREASURY WAS AUTHORIZED, AS A MATTER OF INTERNAL ADMINISTRATION IN
HIS DEPARTMENT, TO REQUIRE THAT HIS SUBORDINATES DECLINE TO PRODUCE
TREASURY RECORDS IN THEIR POSSESSION.  IN THE CASE BEFORE US PRODUCTION
OF DOCUMENTS BELONGING TO THE DEPARTMENT OF JUSTICE WAS DECLINED BY
VIRTUE OF AN ORDER OF THE ATTORNEY GENERAL INSTRUCTING HIS SUBORDINATES
NOT TO PRODUCE CERTAIN DOCUMENTS.  THE AUTHORITY OF THE ATTORNEY
GENERAL TO MAKE SUCH A REGULATION FOR THE INTERNAL CONDUCT OF THE
DEPARTMENT OF JUSTICE IS NOT LESS THAN THE POWER OF THE SECRETARY OF
THE TREASURY TO PROMULGATE THE ORDER UPHELD IN BOSKE V. COMINGORE,
SUPRA. 

BUT IN HOLDING THAT THAT DECISION RULES THIS, THE CONTEXT OF THE
EARLIER DECISION AND THE QUALIFICATIONS WHICH THAT CONTEXT IMPLIES
BECOME IMPORTANT.  THE REGULATION IN BOSKE V. COMINGORE PROVIDED:  (1)
THAT COLLECTORS SHOULD UNDER NO CIRCUMSTANCES DISCLOSE TAX REPORTS OR
PRODUCE THEM IN COURT, AND (2) THAT REPORTS COULD BE OBTAINED ONLY "ON
A RULE OF THE COURT UPON THE SECRETARY OF THE TREASURY."  177 U.S. AT
460-461.  THE REGULATION ALSO STATED THAT THE REPORTS WOULD BE
DISCLOSED BY THE SECRETARY OF THE TREASURY "UNLESS IT SHOULD BE FOUND
THAT CIRCUMSTANCES OR CONDITIONS EXIST WHICH MAKES IT NECESSARY TO
DECLINE, IN THE INTEREST OF THE PUBLIC SERVICE, TO FURNISH SUCH A
COPY."  IBID.  THIS PORTION OF THE REGULATION WAS NOT IN ISSUE,
HOWEVER, FOR THE COURT WAS CONSIDERING THE FAILURE OF THE COLLECTOR TO
PRODUCE, NOT THE FAILURE OF THE SECRETARY OF THE TREASURY.  THIS IS
EMPHASIZED BY THE GOVERNMENT'S SUGGESTION THAT: 

"(IF) THE REPORTS THEMSELVES WERE TO BE USED THIS COULD BE SECURED BY
A SUBPOENA DUCES TECUM TO THE HEAD OF THE TREASURY DEPARTMENT, OR
SOMEONE UNDER HIS DIRECTION, WHO WOULD PRODUCE THE ORIGINAL PAPERS
THEMSELVES IN COURT FOR INTRODUCTION AS EVIDENCE IN THE TRIAL OF THE
CAUSE."  BRIEF FOR APPELLEE, P. 49, BOSKE V. COMINGORE, SUPRA. 

AND THE DECISION WAS STRICTLY CONFINED TO THE NARROW ISSUE BEFORE THE
COURT.  IT IS EPITOMIZED IN THE CONCLUDING PARAGRAPH OF THE BOSKE
OPINION: 

"IN OUR OPINION THE SECRETARY, UNDER THE REGULATIONS AS TO THE
CUSTODY, USE AND PRESERVATION OF THE RECORDS, PAPERS AND PROPERTY
APPERTAINING TO THE BUSINESS OF HIS DEPARTMENT, MAY TAKE FROM A
SUBORDINATE, SUCH AS A COLLECTOR, ALL DISCRETION AS TO PERMITTING THE
RECORDS IN HIS CUSTODY TO BE USED FOR ANY OTHER PURPOSE THAN THE
COLLECTION OF THE REVENUE, AND RESERVE FOR HIS OWN DETERMINATION ALL
MATTERS OF THAT CHARACTER."  177 U.S. AT 470. 

THERE IS NOT A HINT IN THE BOSKE OPINION THAT THE GOVERNMENT CAN SHUT
OFF AN APPROPRIATE JUDICIAL DEMAND FOR SUCH PAPERS. 

I WHOLLY AGREE WITH WHAT IS NOW DECIDED INSOFAR AS IT FINDS THAT
WHETHER, WHEN AND HOW THE ATTORNEY GENERAL HIMSELF CAN BE GRANTED AN
IMMUNITY FROM THE DUTY TO DISCLOSE INFORMATION CONTAINED IN DOCUMENTS
WITHIN HIS POSSESSION THAT ARE RELEVANT TO A JUDICIAL PROCEEDING ARE
MATTERS NOT HERE FOR ADJUDICATION.  THEREFORE, NOT ONE OF THESE
QUESTIONS IS IMPLIEDLY AFFECTED BY THE VERY NARROW RULING ON WHICH THE
PRESENT DECISION RESTS.  SPECIFICALLY, THE DECISION AND OPINION IN THIS
CASE CANNOT AFFORD A BASIS FOR A FUTURE SUGGESTION THAT THE ATTORNEY
GENERAL CAN FORBID EVERY SUBORDINATE WHO IS CAPABLE OF BEING SERVED BY
PROCESS FROM PRODUCING RELEVANT DOCUMENTS AND LATER CONTEST A
REQUIREMENT UPON HIM TO PRODUCE ON THE GROUND THAT PROCEDURALLY HE
CANNOT BE REACHED.  IN JOINING THE COURT'S OPINION I ASSUME THE
CONTRARY - THAT THE ATTORNEY GENERAL CAN BE REACHED BY LEGAL PROCESS. 

THOUGH HE MAY BE SO REACHED, WHAT DISCLOSURES HE MAY BE COMPELLED TO
MAKE IS ANOTHER MATTER.  IT WILL OF COURSE BE OPEN TO HIM TO RAISE
THOSE ISSUES OF PRIVILEGE FROM TESTIMONIAL COMPULSION WHICH THE COURT
RIGHTLY HOLDS ARE NOT BEFORE US NOW.  BUT UNLESS THE ATTORNEY GENERAL'S
AMENABILITY TO PROCESS IS IMPLIEDLY RECOGNIZED WE SHOULD CANDIDLY FACE
THE ISSUE OF THE IMMUNITY PERTAINING TO THE INFORMATION WHICH IS HERE
SOUGHT.  TO HOLD NOW THAT THE ATTORNEY GENERAL IS EMPOWERED TO FORBID
HIS SUBORDINATES, THOUGH WITHIN A COURT'S JURISDICTION, TO PRODUCE
DOCUMENTS AND TO HOLD LATER THAT THE ATTORNEY GENERAL HIMSELF CANNOT IN
ANY EVENT BE PROCEDURALLY REACHED WOULD BE TO APPLY A FOX-HUNTING
THEORY OF JUSTICE THAT OUGHT TO MAKE BENTHAM'S SKELETON RATTLE. 
..END :




















UNIVERSAL CAMERA CORP. V. LABOR BD., 340 U.S. 474 


NO. 40.  ARGUED NOVEMBER 6-7, 1950.  - DECIDED FEBRUARY 26, 1951.  - 179
F.2D 749, VACATED AND REMANDED. 


THE NATIONAL LABOR RELATIONS BOARD ORDERED PETITIONER TO REINSTATE
WITH BACK PAY AN EMPLOYEE FOUND TO HAVE BEEN DISCHARGED BECAUSE HE GAVE
CERTAIN TESTIMONY IN ANOTHER PROCEEDING UNDER THE NATIONAL LABOR
RELATIONS ACT.  THE EVIDENCE AS TO THE REASON FOR HIS DISCHARGE WAS
CONFLICTING; AND THE BOARD OVERRULED ITS EXAMINER'S FINDINGS OF FACT
AND HIS RECOMMENDATION THAT THE PROCEEDINGS BE DISMISSED.  IN DECREEING
ENFORCEMENT, THE COURT OF APPEALS HELD THAT THE BOARD'S FINDINGS OF
FACT WERE "SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED
AS A WHOLE" WITHIN THE MEANING OF SEC. 10(E) OF THE NATIONAL LABOR
RELATIONS ACT, AS AMENDED IN 1947.  THIS HOLDING WAS BASED PARTLY ON
THE VIEW (1) THAT THE 1947 AMENDMENTS HAD NOT BROADENED THE SCOPE OF
JUDICIAL REVIEW, AND (2) THAT THE BOARD'S REJECTION OF ITS EXAMINER'S
FINDINGS OF FACT WAS WITHOUT RELEVANCE IN DETERMINING WHETHER THE
BOARD'S FINDINGS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE.  HELD: 

1.  IN THE LIGHT OF THE LEGISLATIVE HISTORY, THE STANDARD OF PROOF
REQUIRED UNDER SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, TO SUPPORT A
DECISION OF THE LABOR BOARD ON JUDICIAL REVIEW IS THE SAME AS THAT TO
BE EXACTED BY COURTS REVIEWING EVERY ADMINISTRATIVE ACTION SUBJECT TO
THE ADMINISTRATIVE PROCEDURE ACT.  PP. 477-487. 

2.  IN AMENDING SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT SO AS
TO REQUIRE THAT, ON JUDICIAL REVIEW, THE BOARD'S FINDINGS OF FACT MUST
BE SUPPORTED BY SUBSTANTIAL EVIDENCE "ON THE RECORD CONSIDERED AS A
WHOLE," CONGRESS MADE IT CLEAR THAT A REVIEWING COURT IS NOT BARRED
FROM SETTING ASIDE A BOARD DECISION WHEN IT CANNOT CONSCIENTIOUSLY FIND
THAT THE EVIDENCE SUPPORTING THAT DECISION IS SUBSTANTIAL, WHEN VIEWED
IN THE LIGHT THAT THE RECORD IN ITS ENTIRETY FURNISHES, INCLUDING THE
BODY OF EVIDENCE OPPOSED TO THE BOARD'S VIEW.  PP. 487-488. 

3.  WHEN READ IN THE LIGHT OF THEIR LEGISLATIVE HISTORY, THE
ADMINISTRATIVE PROCEDURE ACT AND THE LABOR MANAGEMENT RELATIONS ACT,
1947, REQUIRE THE COURTS TO ASSUME MORE RESPONSIBILITY FOR THE
REASONABLENESS AND FAIRNESS OF LABOR BOARD DECISIONS THAN SOME COURTS
HAVE SHOWN IN THE PAST.  PP. 488-490. 

4.  WHETHER ON THE RECORD AS A WHOLE THERE IS SUBSTANTIAL EVIDENCE TO
SUPPORT AGENCY FINDINGS IS A QUESTION WHICH CONGRESS HAS PLACED IN THE
KEEPING OF THE COURTS OF APPEALS.  THIS COURT WILL INTERVENE ONLY IN
WHAT OUGHT TO BE THE RARE INSTANCE WHEN THE STANDARD APPEARS TO HAVE
BEEN MISAPPREHENDED OR GROSSLY MISAPPLIED.  P. 491. 

5.  THE COURT OF APPEALS ERRED IN HOLDING THAT IT WAS BARRED FROM
TAKING INTO ACCOUNT THE REPORT OF THE EXAMINER ON QUESTIONS OF FACT
INSOFAR AS THAT REPORT WAS REJECTED BY THE BOARD.  PP. 491-497. 

(A)  A TRIAL EXAMINER'S FINDINGS ARE NOT AS UNASSAILABLE AS A
MASTER'S AND MAY BE REVERSED BY THE BOARD EVEN WHEN NOT CLEARLY
ERRONEOUS.  P. 492. 

(B)  A REVIEWING COURT NEED NOT GIVE A TRIAL EXAMINER'S FINDINGS MORE
WEIGHT THAN IN REASON AND IN THE LIGHT OF JUDICIAL EXPERIENCE THEY
DESERVE; BUT THEY SHOULD BE ACCORDED THE RELEVANCE THAT THEY REASONABLY
COMMAND IN ANSWERING THE COMPREHENSIVE QUESTION WHETHER THE EVIDENCE
SUPPORTING THE BOARD'S ORDER IS SUBSTANTIAL.  PP. 496-497. 

6.  THE CAUSE IS REMANDED TO THE COURT OF APPEALS, WHICH IS LEFT FREE
TO GRANT OR DENY ENFORCEMENT AS IT THINKS THE PRINCIPLES EXPRESSED IN
THE OPINION OF THIS COURT DICTATE.  P. 497. 

UNIVERSAL CAMERA CORP. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE COURT OF APPEALS DECREED ENFORCEMENT OF AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD REQUIRING PETITIONER TO REINSTATE AN EMPLOYEE
WITH BACK PAY AND TO CEASE AND DESIST FROM DISCRIMINATING AGAINST ANY
EMPLOYEE WHO FILES CHARGES OR GIVES TESTIMONY UNDER THE NATIONAL LABOR
RELATIONS ACT.  179 F.2D 749.  THIS COURT GRANTED CERTIORARI.  339 U.S.
962.  JUDGMENT VACATED AND CAUSE REMANDED, P. 497. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE ESSENTIAL ISSUE RAISED BY THIS CASE AND ITS COMPANION, LABOR
BOARD V. PITTSBURGH STEAMSHIP CO., POST, P. 498, IS THE EFFECT OF THE
ADMINISTRATIVE PROCEDURE ACT AND THE LEGISLATION COLLOQUIALLY KNOWN AS
THE TAFT-HARTLEY ACT ON THE DUTY OF COURTS OF APPEALS WHEN CALLED UPON
TO REVIEW ORDERS OF THE NATIONAL LABOR RELATIONS BOARD. 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT GRANTED ENFORCEMENT OF AN
ORDER DIRECTING, IN THE MAIN, THAT PETITIONER REINSTATE WITH BACK PAY
AN EMPLOYEE FOUND TO HAVE BEEN DISCHARGED BECAUSE HE GAVE TESTIMONY
UNDER THE WAGNER ACT AND CEASE AND DESIST FROM DISCRIMINATING AGAINST
ANY EMPLOYEE WHO FILES CHARGES OR GIVES TESTIMONY UNDER THAT ACT.  THE
COURT BELOW, JUDGE SWAN DISSENTING, DECREED FULL ENFORCEMENT OF THE
ORDER.  179 F.2D 749.  BECAUSE THE VIEWS OF THAT COURT REGARDING THE
EFFECT OF THE NEW LEGISLATION ON THE RELATION BETWEEN THE BOARD AND THE
COURTS OF APPEALS IN THE ENFORCEMENT OF THE BOARD'S ORDERS CONFLICTED
WITH THOSE OF THE COURT OF APPEALS FOR THE SIXTH CIRCUIT  FN1 WE
BROUGHT BOTH CASES HERE.  339 U.S. 951 AND 339 U.S. 962.  THE CLASH OF
OPINION OBVIOUSLY REQUIRED SETTLEMENT BY THIS COURT. 

                                  I. 

WANT OF CERTAINTY IN JUDICIAL REVIEW OF LABOR BOARD DECISIONS PARTLY
REFLECTS THE INTRACTABILITY OF ANY FORMULA TO FURNISH DEFINITENESS OF
CONTENT FOR ALL THE IMPALPABLE FACTORS INVOLVED IN JUDICIAL REVIEW. 
BUT IN PART DOUBTS AS TO THE NATURE OF THE REVIEWING POWER AND
UNCERTAINTIES IN ITS APPLICATION DERIVE FROM HISTORY, AND TO THAT
EXTENT AN ELUCIDATION OF THIS HISTORY MAY CLEAR THEM AWAY. 

THE WAGNER ACT PROVIDED:  "THE FINDINGS OF THE BOARD AS TO THE FACTS,
IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE."  ACT OF JULY 5, 1935,
SEC. 10(E), 49 STAT. 449, 454, 29 U.S.C. SEC. 160(E).  THIS COURT READ
"EVIDENCE" TO MEAN "SUBSTANTIAL EVIDENCE," WASHINGTON, V. & M. COACH
CO. V. LABOR BOARD, 301 U.S. 142, AND WE SAID THAT "(SUBSTANTIAL)
EVIDENCE IS MORE THAN A MERE SCINTILLA.  IT MEANS SUCH RELEVANT
EVIDENCE AS A REASONABLE MIND MIGHT ACCEPT AS ADEQUATE TO SUPPORT A
CONCLUSION."  CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197,
229.  ACCORDINGLY, IT "MUST DO MORE THAN CREATE A SUSPICION OF THE
EXISTENCE OF THE FACT TO BE ESTABLISHED.  ...  IT MUST BE ENOUGH TO
JUSTIFY, IF THE TRIAL WERE TO A JURY, A REFUSAL TO DIRECT A VERDICT
WHEN THE CONCLUSION SOUGHT TO BE DRAWN FROM IT IS ONE OF FACT FOR THE
JURY."  LABOR BOARD V. COLUMBIAN ENAMELING & STAMPING CO., 306 U.S.
292, 300. 

THE VERY SMOOTHNESS OF THE "SUBSTANTIAL EVIDENCE" FORMULA AS THE
STANDARD FOR REVIEWING THE EVIDENTIARY VALIDITY OF THE BOARD'S FINDINGS
ESTABLISHED ITS CURRENCY.  BUT THE INEVITABLY VARIANT APPLICATIONS OF
THE STANDARD TO CONFLICTING EVIDENCE SOON BROUGHT CONTRARIETY OF VIEWS
AND IN DUE COURSE BRED CRITICISM.  EVEN THOUGH THE WHOLE RECORD MAY
HAVE BEEN CANVASSED IN ORDER TO DETERMINE WHETHER THE EVIDENTIARY
FOUNDATION OF A DETERMINATION BY THE BOARD WAS "SUBSTANTIAL," THE
PHRASING OF THIS COURT'S PROCESS OF REVIEW READILY LENT ITSELF TO THE
NOTION THAT IT WAS ENOUGH THAT THE EVIDENCE SUPPORTING THE BOARD'S
RESULT WAS "SUBSTANTIAL" WHEN CONSIDERED BY ITSELF.  IT IS FAIR TO SAY
THAT BY IMPERCEPTIBLE STEPS REGARD FOR THE FACT-FINDING FUNCTION OF THE
BOARD LED TO THE ASSUMPTION THAT THE REQUIREMENTS OF THE WAGNER ACT
WERE MET WHEN THE REVIEWING COURT COULD FIND IN THE RECORD EVIDENCE
WHICH, WHEN VIEWED IN ISOLATION, SUBSTANTIATED THE BOARD'S FINDINGS. 
COMPARE LABOR BOARD V. WATERMAN STEAMSHIP CORP., 309 U.S. 206; LABOR
BOARD V. BRADFORD DYEING ASSN., 310 U.S. 318; AND SEE LABOR BOARD V.
NEVADA CONSOLIDATED COPPER CORP., 316 U.S. 105.  THIS IS NOT TO SAY
THAT EVERY MEMBER OF THIS COURT WAS CONSCIOUSLY GUIDED BY THIS VIEW OR
THAT THE COURT EVER EXPLICITLY AVOWED THIS PRACTICE AS DOCTRINE.  WHAT
MATTERS IS THAT THE BELIEF JUSTIFIABLY AROSE THAT THE COURT HAD SO
CONSTRUED THE OBLIGATION TO REVIEW.  FN2 

CRITICISM OF SO CONTRACTED A REVIEWING POWER REINFORCED
DISSATISFACTION FELT IN VARIOUS QUARTERS WITH THE BOARD'S
ADMINISTRATION OF THE WAGNER ACT IN THE YEARS PRECEDING THE WAR.  THE
SCHEME OF THE ACT WAS ATTACKED AS AN INHERENTLY UNFAIR FUSION OF THE
FUNCTIONS OF PROSECUTOR AND JUDGE.  FN3 ACCUSATIONS OF PARTISAN BIAS
WERE NOT WANTING.  FN4  THE "IRRESPONSIBLE ADMISSION AND WEIGHING OF
HEARSAY, OPINION, AND EMOTIONAL SPECULATION IN PLACE OF FACTUAL
EVIDENCE" WAS SAID TO BE A "SERIOUS MENACE."  FN5  NO DOUBT SOME,
PERHAPS EVEN MUCH, OF THE CRITICISM WAS BASELESS AND SOME SURELY WAS
RECKLESS.  FN6  WHAT IS HERE RELEVANT, HOWEVER, IS THE CLIMATE OF
OPINION THEREBY GENERATED AND ITS EFFECT ON CONGRESS.  PROTESTS AGAINST
"SHOCKING INJUSTICES" N7 AND INTIMATIONS OF JUDICIAL "ABDICATION"  FN8
WITH WHICH SOME COURTS GRANTED ENFORCEMENT OF THE BOARD'S ORDERS
STIMULATED PRESSURES FOR LEGISLATIVE RELIEF FROM ALLEGED ADMINISTRATIVE
EXCESSES. 

THE STRENGTH OF THESE PRESSURES WAS REFLECTED IN THE PASSAGE IN 1940
OF THE WALTER-LOGAN BILL.  IT WAS VETOED BY PRESIDENT ROOSEVELT, PARTLY
BECAUSE IT IMPOSED UNDULY RIGID LIMITATIONS ON THE ADMINISTRATIVE
PROCESS, AND PARTLY BECAUSE OF THE INVESTIGATION INTO THE ACTUAL
OPERATION OF THE ADMINISTRATIVE PROCESS THEN BEING CONDUCTED BY AN
EXPERIENCED COMMITTEE APPOINTED BY THE ATTORNEY GENERAL N9.  IT IS
WORTH NOTING THAT DESPITE ITS AIM TO TIGHTEN CONTROL OVER
ADMINISTRATIVE DETERMINATIONS OF FACT, THE WALTER-LOGAN BILL CONTENTED
ITSELF WITH THE CONVENTIONAL FORMULA THAT AN AGENCY'S DECISION COULD BE
SET ASIDE IF "THE FINDINGS OF FACT ARE NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE."  FN10 

THE FINAL REPORT OF THE ATTORNEY GENERAL'S COMMITTEE WAS SUBMITTED IN
JANUARY, 1941.  THE MAJORITY CONCLUDED THAT "(DISSATISFACTION) WITH THE
EXISTING STANDARDS AS TO THE SCOPE OF JUDICIAL REVIEW DERIVES LARGELY
FROM DISSATISFACTION WITH THE FACT-FINDING PROCEDURES NOW EMPLOYED BY
THE ADMINISTRATIVE BODIES."  FN11  DEPARTURE FROM THE "SUBSTANTIAL
EVIDENCE" TEST, IT THOUGHT, WOULD EITHER CREATE UNNECESSARY UNCERTAINTY
OR TRANSFER TO COURTS THE RESPONSIBILITY FOR ASCERTAINING AND ASSAYING
MATTERS THE SIGNIFICANCE OF WHICH LIES OUTSIDE JUDICIAL COMPETENCE. 
ACCORDINGLY, IT RECOMMENDED AGAINST LEGISLATION EMBODYING A GENERAL
SCHEME OF JUDICIAL REVIEW.  FN12 

THREE MEMBERS OF THE COMMITTEE REGISTERED A DISSENT.  THEIR VIEW WAS
THAT THE "PRESENT SYSTEM OR LACK OF SYSTEM OF JUDICIAL REVIEW" LED TO
INCONSISTENCY AND UNCERTAINTY.  THEY REPORTED THAT UNDER A "PREVALENT"
INTERPRETATION OF THE "SUBSTANTIAL EVIDENCE" RULE "IF WHAT IS CALLED
'SUBSTANTIAL EVIDENCE' IS FOUND ANYWHERE IN THE RECORD TO SUPPORT
CONCLUSIONS OF FACT, THE COURTS ARE SAID TO BE OBLIGED TO SUSTAIN THE
DECISION WITHOUT REFERENCE TO HOW HEAVILY THE COUNTERVAILING EVIDENCE
MAY PREPONDERATE - UNLESS INDEED THE STAGE OF ARBITRARY DECISION IS
REACHED.  UNDER THIS INTERPRETATION, THE COURTS NEED TO READ ONLY ONE
SIDE OF THE CASE AND, IF THEY FIND ANY EVIDENCE THERE, THE
ADMINISTRATIVE ACTION IS TO BE SUSTAINED AND THE RECORD TO THE CONTRARY
IS TO BE IGNORED."  FN13  THEIR VIEW LED THEM TO RECOMMEND THAT
CONGRESS ENACT PRINCIPLES OF REVIEW APPLICABLE TO ALL AGENCIES NOT
EXCEPTED BY UNIQUE CHARACTERISTICS.  ONE OF THESE PRINCIPLES WAS
EXPRESSED BY THE FORMULA THAT JUDICIAL REVIEW COULD EXTEND TO
"FINDINGS, INFERENCES, OR CONCLUSIONS OF FACT UNSUPPORTED, UPON THE
WHOLE RECORD, BY SUBSTANTIAL EVIDENCE."  FN14  SO FAR AS THE HISTORY OF
THIS MOVEMENT FOR ENLARGED REVIEW REVEALS, THE PHRASE "UPON THE WHOLE
RECORD" MAKES ITS FIRST APPEARANCE IN THIS RECOMMENDATION OF THE
MINORITY OF THE ATTORNEY GENERAL'S COMMITTEE.  THIS EVIDENCE OF THE
CLOSE RELATIONSHIP BETWEEN THE PHRASE AND THE CRITICISM OUT OF WHICH IT
AROSE IS IMPORTANT, FOR THE SUBSTANCE OF THIS FORMULA FOR JUDICIAL
REVIEW FOUND ITS WAY INTO THE STATUTE BOOKS WHEN CONGRESS WITH
UNQUESTIONING - WE MIGHT EVEN SAY UNCRITICAL - UNANIMITY ENACTED THE
ADMINISTRATIVE PROCEDURE ACT.  FN15 

ONE IS TEMPTED TO SAY "UNCRITICAL" BECAUSE THE LEGISLATIVE HISTORY OF
THAT ACT HARDLY SPEAKS WITH THAT CLARITY OF PURPOSE WHICH CONGRESS
SUPPOSEDLY FURNISHES COURTS IN ORDER TO ENABLE THEM TO ENFORCE ITS TRUE
WILL.  ON THE ONE HAND, THE SPONSORS OF THE LEGISLATION INDICATED THAT
THEY WERE REAFFIRMING THE PREVAILING "SUBSTANTIAL EVIDENCE" TEST.  FN16
BUT WITH EQUAL CLARITY THEY EXPRESSED DISAPPROVAL OF THE MANNER IN
WHICH THE COURTS WERE APPLYING THEIR OWN STANDARD.  THE COMMITTEE
REPORTS OF BOTH HOUSES REFER TO THE PRACTICE OF AGENCIES TO RELY UPON
"SUSPICION, SURMISE, IMPLICATIONS, OR PLAINLY INCREDIBLE EVIDENCE," AND
INDICATE THAT COURTS ARE TO EXACT HIGHER STANDARDS "IN THE EXERCISE OF
THEIR INDEPENDENT JUDGMENT" AND ON CONSIDERATION OF "THE WHOLE
RECORD."  FN17 

SIMILAR DISSATISFACTION WITH TOO RESTRICTED APPLICATION OF THE
"SUBSTANTIAL EVIDENCE" TEST IS REFLECTED IN THE LEGISLATIVE HISTORY OF
THE TAFT-HARTLEY ACT.  FN18  THE BILL AS REPORTED TO THE HOUSE PROVIDED
THAT THE "FINDINGS OF THE BOARD AS TO THE FACTS SHALL BE CONCLUSIVE
UNLESS IT IS MADE TO APPEAR TO THE SATISFACTION OF THE COURT EITHER (1)
THAT THE FINDINGS OF FACT ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, OR (2) THAT THE FINDINGS OF FACT ARE NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE."  FN19  THE BILL LEFT THE HOUSE WITH THIS
PROVISION.  EARLY COMMITTEE PRINTS IN THE SENATE PROVIDED FOR REVIEW BY
"WEIGHT OF THE EVIDENCE" OR "CLEARLY ERRONEOUS" STANDARDS.  FN20  BUT,
AS THE SENATE COMMITTEE REPORT RELATES, "IT WAS FINALLY DECIDED TO
CONFORM THE STATUTE TO THE CORRESPONDING SECTION OF THE ADMINISTRATIVE
PROCEDURE ACT WHERE THE SUBSTANTIAL EVIDENCE TEST PREVAILS.  IN ORDER
TO CLARIFY ANY AMBIGUITY IN THAT STATUTE, HOWEVER, THE COMMITTEE
INSERTED THE WORDS 'QUESTIONS OF FACT, IF SUPPORTED BY SUBSTANTIAL
EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE  ...  '"  FN21 

THIS PHRASEOLOGY WAS ADOPTED BY THE SENATE.  THE HOUSE CONFEREES
AGREED.  THEY REPORTED TO THE HOUSE:  "IT IS BELIEVED THAT THE
PROVISIONS OF THE CONFERENCE AGREEMENT RELATING TO THE COURTS'
REVIEWING POWER WILL BE ADEQUATE TO PRECLUDE SUCH DECISIONS AS THOSE IN
N.L.R.B. V. NEVADA CONSOL.  COPPER CORP. (316 U.S. 105) AND IN THE
WILSON, COLUMBIA PRODUCTS, UNION PACIFIC STAGES, HEARST, REPUBLIC
AVIATION, AND LE TOURNEAU, ETC. CASES, SUPRA, WITHOUT UNDULY BURDENING
THE COURTS."  FN22  THE SENATE VERSION BECAME THE LAW. 

IT IS FAIR TO SAY THAT IN ALL THIS CONGRESS EXPRESSED A MOOD.  AND IT
EXPRESSED ITS MOOD NOT MERELY BY ORATORY BUT BY LEGISLATION.  AS
LEGISLATION THAT MOOD MUST BE RESPECTED, EVEN THOUGH IT CAN ONLY SERVE
AS A STANDARD FOR JUDGMENT AND NOT AS A BODY OF RIGID RULES ASSURING
SAMENESS OF APPLICATION.  ENFORCEMENT OF SUCH BROAD STANDARDS IMPLIES
SUBTLETY OF MIND AND SOLIDITY OF JUDGMENT.  BUT IT IS NOT FOR US TO
QUESTION THAT CONGRESS MAY ASSUME SUCH QUALITIES IN THE FEDERAL
JUDICIARY. 

FROM THE LEGISLATIVE STORY WE HAVE SUMMARIZED, TWO CONCRETE
CONCLUSIONS DO EMERGE.  ONE IS THE IDENTITY OF AIM OF THE
ADMINISTRATIVE PROCEDURE ACT AND THE TAFT-HARTLEY ACT REGARDING THE
PROOF WITH WHICH THE LABOR BOARD MUST SUPPORT A DECISION.  THE OTHER IS
THAT NOW CONGRESS HAS LEFT NO ROOM FOR DOUBT AS TO THE KIND OF SCRUTINY
WHICH A COURT OF APPEALS MUST GIVE THE RECORD BEFORE THE BOARD TO
SATISFY ITSELF THAT THE BOARD'S ORDER RESTS ON ADEQUATE PROOF. 

IT WOULD BE MISCHIEVOUS WORD-PLAYING TO FIND THAT THE SCOPE OF REVIEW
UNDER THE TAFT-HARTLEY ACT IS ANY DIFFERENT FROM THAT UNDER THE
ADMINISTRATIVE PROCEDURE ACT.  THE SENATE COMMITTEE WHICH REPORTED THE
REVIEW CLAUSE OF THE TAFT-HARTLEY ACT EXPRESSLY INDICATED THAT THE TWO
STANDARDS WERE TO CONFORM IN THIS REGARD, AND THE WORDING OF THE TWO
ACTS IS FOR PURPOSES OF JUDICIAL ADMINISTRATION IDENTICAL.  AND SO WE
HOLD THAT THE STANDARD OF PROOF SPECIFICALLY REQUIRED OF THE LABOR
BOARD BY THE TAFT-HARTLEY ACT IS THE SAME AS THAT TO BE EXACTED BY
COURTS REVIEWING EVERY ADMINISTRATIVE ACTION SUBJECT TO THE
ADMINISTRATIVE PROCEDURE ACT. 

WHETHER OR NOT IT WAS EVER PERMISSIBLE FOR COURTS TO DETERMINE THE
SUBSTANTIALITY OF EVIDENCE SUPPORTING A LABOR BOARD DECISION MERELY ON
THE BASIS OF EVIDENCE WHICH IN AND OF ITSELF JUSTIFIED IT, WITHOUT
TAKING INTO ACCOUNT CONTRADICTORY EVIDENCE OR EVIDENCE FROM WHICH
CONFLICTING INFERENCES COULD BE DRAWN, THE NEW LEGISLATION DEFINITIVELY
PRECLUDES SUCH A THEORY OF REVIEW AND BARS ITS PRACTICE.  THE
SUBSTANTIALITY OF EVIDENCE MUST TAKE INTO ACCOUNT WHATEVER IN THE
RECORD FAIRLY DETRACTS FROM ITS WEIGHT.  THIS IS CLEARLY THE
SIGNIFICANCE OF THE REQUIREMENT IN BOTH STATUTES THAT COURTS CONSIDER
THE WHOLE RECORD.  COMMITTEE REPORTS AND THE ADOPTION IN THE
ADMINISTRATIVE PROCEDURE ACT OF THE MINORITY VIEWS OF THE ATTORNEY
GENERAL'S COMMITTEE DEMONSTRATE THAT TO ENJOIN SUCH A DUTY ON THE
REVIEWING COURT WAS ONE OF THE IMPORTANT PURPOSES OF THE MOVEMENT WHICH
EVENTUATED IN THAT ENACTMENT.    TO BE SURE, THE REQUIREMENT FOR
CANVASSING "THE WHOLE RECORD" IN ORDER TO ASCERTAIN SUBSTANTIALITY DOES
NOT FURNISH A CALCULUS OF VALUE BY WHICH A REVIEWING COURT CAN ASSESS
THE EVIDENCE.  NOR WAS IT INTENDED TO NEGATIVE THE FUNCTION OF THE
LABOR BOARD AS ONE OF THOSE AGENCIES PRESUMABLY EQUIPPED OR INFORMED BY
EXPERIENCE TO DEAL WITH A SPECIALIZED FIELD OF KNOWLEDGE, WHOSE
FINDINGS WITHIN THAT FIELD CARRY THE AUTHORITY OF AN EXPERTNESS WHICH
COURTS DO NOT POSSESS AND THEREFORE MUST RESPECT.  NOR DOES IT MEAN
THAT EVEN AS TO MATTERS NOT REQUIRING EXPERTISE A COURT MAY DISPLACE
THE BOARD'S CHOICE BETWEEN TWO FAIRLY CONFLICTING VIEWS, EVEN THOUGH
THE COURT WOULD JUSTIFIABLY HAVE MADE A DIFFERENT CHOICE HAD THE MATTER
BEEN BEFORE IT DE NOVO.  CONGRESS HAS MERELY MADE IT CLEAR THAT A
REVIEWING COURT IS NOT BARRED FROM SETTING ASIDE A BOARD DECISION WHEN
IT CANNOT CONSCIENTIOUSLY FIND THAT THE EVIDENCE SUPPORTING THAT
DECISION IS SUBSTANTIAL, WHEN VIEWED IN THE LIGHT THAT THE RECORD IN
ITS ENTIRETY FURNISHES, INCLUDING THE BODY OF EVIDENCE OPPOSED TO THE
BOARD'S VIEW. 

THERE REMAINS, THEN, THE QUESTION WHETHER ENACTMENT OF THESE TWO
STATUTES HAS ALTERED THE SCOPE OF REVIEW OTHER THAN TO REQUIRE THAT
SUBSTANTIALITY BE DETERMINED IN THE LIGHT OF ALL THAT THE RECORD
RELEVANTLY PRESENTS.  A FORMULA FOR JUDICIAL REVIEW OF ADMINISTRATIVE
ACTION MAY AFFORD GROUNDS FOR CERTITUDE BUT CANNOT ASSURE CERTAINTY OF
APPLICATION.  SOME SCOPE FOR JUDICIAL DISCRETION IN APPLYING THE
FORMULA CAN BE AVOIDED ONLY BY FALSIFYING THE ACTUAL PROCESS OF JUDGING
OR BY USING THE FORMULA AS AN INSTRUMENT OF FUTILE CASUISTRY.  IT
CANNOT BE TOO OFTEN REPEATED THAT JUDGES ARE NOT AUTOMATA.  THE
ULTIMATE RELIANCE FOR THE FAIR OPERATION OF ANY STANDARD IS A JUDICIARY
OF HIGH COMPETENCE AND CHARACTER AND THE CONSTANT PLAY OF AN INFORMED
PROFESSIONAL CRITIQUE UPON ITS WORK. 

SINCE THE PRECISE WAY IN WHICH COURTS INTERFERE WITH AGENCY FINDINGS
CANNOT BE IMPRISONED WITHIN ANY FORM OF WORDS, NEW FORMULAS ATTEMPTING
TO REPHRASE THE OLD ARE NOT LIKELY TO BE MORE HELPFUL THAN THE OLD. 
THERE ARE NO TALISMANIC WORDS THAT CAN AVOID THE PROCESS OF JUDGMENT. 
THE DIFFICULTY IS THAT WE CANNOT ESCAPE, IN RELATION TO THIS PROBLEM,
THE USE OF UNDEFINED DEFINING TERMS. 

WHATEVER CHANGES WERE MADE BY THE ADMINISTRATIVE PROCEDURE AND TAFT
HARTLEY ACTS ARE CLEARLY WITHIN THIS AREA WHERE PRECISE DEFINITION IS
IMPOSSIBLE.  RETENTION OF THE FAMILIAR "SUBSTANTIAL EVIDENCE"
TERMINOLOGY INDICATES THAT NO DRASTIC REVERSAL OF ATTITUDE WAS
INTENDED. 

BUT A STANDARD LEAVING AN UNAVOIDABLE MARGIN FOR INDIVIDUAL JUDGMENT
DOES NOT LEAVE THE JUDICIAL JUDGMENT AT LARGE EVEN THOUGH THE PHRASING
OF THE STANDARD DOES NOT WHOLLY FENCE IT IN.  THE LEGISLATIVE HISTORY
OF THESE ACTS DEMONSTRATES A PURPOSE TO IMPOSE ON COURTS A
RESPONSIBILITY WHICH HAS NOT ALWAYS BEEN RECOGNIZED.  OF COURSE IT IS A
STATUTE AND NOT A COMMITTEE REPORT WHICH WE ARE INTERPRETING.  BUT THE
FAIR INTERPRETATION OF A STATUTE IS OFTEN "THE ART OF PROLIFERATING A
PURPOSE," BROOKLYN NATIONAL CORP. V. COMMISSIONER, 157 F.2D 450, 451,
REVEALED MORE BY THE DEMONSTRABLE FORCES THAT PRODUCED IT THAN BY ITS
PRECISE PHRASING.  THE ADOPTION IN THESE STATUTES OF THE JUDICIALLY
CONSTRUCTED "SUBSTANTIAL EVIDENCE" TEST WAS A RESPONSE TO PRESSURES FOR
STRICTER AND MORE UNIFORM PRACTICE, NOT A REFLECTION OF APPROVAL OF ALL
EXISTING PRACTICES.  TO FIND THE CHANGE SO ELUSIVE THAT IT CANNOT BE
PRECISELY DEFINED DOES NOT MEAN IT MAY BE IGNORED.  WE SHOULD FAIL IN
OUR DUTY TO EFFECTUATE THE WILL OF CONGRESS IF WE DENIED RECOGNITION TO
EXPRESSED CONGRESSIONAL DISAPPROVAL OF THE FINALITY ACCORDED TO LABOR
BOARD FINDINGS BY SOME DECISIONS OF THIS AND LOWER COURTS, OR EVEN OF
THE ATMOSPHERE WHICH MAY HAVE FAVORED THOSE DECISIONS. 

WE CONCLUDE, THEREFORE, THAT THE ADMINISTRATIVE PROCEDURE ACT AND THE
TAFT-HARTLEY ACT DIRECT THAT COURTS MUST NOW ASSUME MORE RESPONSIBILITY
FOR THE REASONABLENESS AND FAIRNESS OF LABOR BOARD DECISIONS THAN SOME
COURTS HAVE SHOWN IN THE PAST.  REVIEWING COURTS MUST BE INFLUENCED BY
A FEELING THAT THEY ARE NOT TO ABDICATE THE CONVENTIONAL JUDICIAL
FUNCTION.  CONGRESS HAS IMPOSED ON THEM RESPONSIBILITY FOR ASSURING
THAT THE BOARD KEEPS WITHIN REASONABLE GROUNDS.  THAT RESPONSIBILITY IS
NOT LESS REAL BECAUSE IT IS LIMITED TO ENFORCING THE REQUIREMENT THAT
EVIDENCE APPEAR SUBSTANTIAL WHEN VIEWED, ON THE RECORD AS A WHOLE, BY
COURTS INVESTED WITH THE AUTHORITY AND ENJOYING THE PRESTIGE OF THE
COURTS OF APPEALS.  THE BOARD'S FINDINGS ARE ENTITLED TO RESPECT; BUT
THEY MUST NONETHELESS BE SET ASIDE WHEN THE RECORD BEFORE A COURT OF
APPEALS CLEARLY PRECLUDES THE BOARD'S DECISION FROM BEING JUSTIFIED BY
A FAIR ESTIMATE OF THE WORTH OF THE TESTIMONY OF WITNESSES OR ITS
INFORMED JUDGMENT ON MATTERS WITHIN ITS SPECIAL COMPETENCE OR BOTH. 

FROM THIS IT FOLLOWS THAT ENACTMENT OF THESE STATUTES DOES NOT
REQUIRE EVERY COURT OF APPEALS TO ALTER ITS PRACTICE.  SOME - PERHAPS A
MAJORITY - HAVE ALWAYS APPLIED THE ATTITUDE REFLECTED IN THIS
LEGISLATION.  TO EXPLORE WHETHER A PARTICULAR COURT SHOULD OR SHOULD
NOT ALTER ITS PRACTICE WOULD ONLY DIVERT ATTENTION FROM THE APPLICATION
OF THE STANDARD NOW PRESCRIBED TO A FUTILE INQUIRY INTO THE NATURE OF
THE TEST FORMERLY USED BY A PARTICULAR COURT. 

OUR POWER TO REVIEW THE CORRECTNESS OF APPLICATION OF THE PRESENT
STANDARD OUGHT SELDOM TO BE CALLED INTO ACTION.  WHETHER ON THE RECORD
AS A WHOLE THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT AGENCY FINDINGS IS
A QUESTION WHICH CONGRESS HAS PLACED IN THE KEEPING OF THE COURTS OF
APPEALS.  THIS COURT WILL INTERVENE ONLY IN WHAT OUGHT TO BE THE RARE
INSTANCE WHEN THE STANDARD APPEARS TO HAVE BEEN MISAPPREHENDED OR
GROSSLY MISAPPLIED. 

                           II. 

OUR DISAGREEMENT WITH THE VIEW OF THE COURT BELOW THAT THE SCOPE OF
REVIEW OF LABOR BOARD DECISIONS IS UNALTERED BY RECENT LEGISLATION DOES
NOT OF ITSELF, AS WE HAVE NOTED, REQUIRE REVERSAL OF ITS DECISION.  THE
COURT MAY HAVE APPLIED A STANDARD OF REVIEW WHICH SATISFIES THE PRESENT
CONGRESSIONAL REQUIREMENT. 

THE DECISION OF THE COURT OF APPEALS IS ASSAILED ON TWO GROUNDS.  IT
IS SAID (1) THAT THE COURT ERRED IN HOLDING THAT IT WAS BARRED FROM
TAKING INTO ACCOUNT THE REPORT OF THE EXAMINER ON QUESTIONS OF FACT
INSOFAR AS THAT REPORT WAS REJECTED BY THE BOARD, AND (2) THAT THE
BOARD'S ORDER WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD
CONSIDERED AS A WHOLE, EVEN APART FROM THE VALIDITY OF THE COURT'S
REFUSAL TO CONSIDER THE REJECTED PORTIONS OF THE EXAMINER'S REPORT. 

THE LATTER CONTENTION IS EASILY MET.  IT IS TRUE THAT TWO OF THE
EARLIER DECISIONS OF THE COURT BELOW WERE AMONG THOSE DISAPPROVED BY
CONGRESS.  FN23  BUT THIS DISAPPROVAL, WE HAVE SEEN, MAY WELL HAVE BEEN
CAUSED BY UNINTENDED INTIMATIONS OF JUDICIAL PHRASING.  AND IN ANY
EVENT, IT IS CLEAR FROM THE COURT'S OPINION IN THIS CASE THAT IT IN
FACT DID CONSIDER THE "RECORD AS A WHOLE," AND DID NOT DEEM ITSELF
MERELY THE JUDICIAL ECHO OF THE BOARD'S CONCLUSION.  THE TESTIMONY OF
THE COMPANY'S WITNESSES WAS INCONSISTENT, AND THERE WAS CLEAR EVIDENCE
THAT THE COMPLAINING EMPLOYEE HAD BEEN DISCHARGED BY AN OFFICER WHO WAS
AT ONE TIME INFLUENCED AGAINST HIM BECAUSE OF HIS APPEARANCE AT THE
BOARD HEARING.  ON SUCH A RECORD WE COULD NOT SAY THAT IT WOULD BE
ERROR TO GRANT ENFORCEMENT. 

THE FIRST CONTENTION, HOWEVER, RAISES SERIOUS QUESTIONS TO WHICH WE
NOW TURN. 

                                 III. 

THE COURT OF APPEALS DEEMED ITSELF BOUND BY THE BOARD'S REJECTION OF
THE EXAMINER'S FINDINGS BECAUSE THE COURT CONSIDERED THESE FINDINGS NOT
"AS UNASSAILABLE AS A MASTER'S."  FN24  179 F.2D AT 752.  THEY ARE
NOT.  SECTION 10(C) OF THE LABOR MANAGEMENT RELATIONS ACT PROVIDES THAT
"IF UPON THE PREPONDERANCE OF THE TESTIMONY TAKEN THE BOARD SHALL BE OF
THE OPINION THAT ANY PERSON NAMED IN THE COMPLAINT HAS ENGAGED IN OR IS
ENGAGING IN ANY SUCH UNFAIR LABOR PRACTICE, THEN THE BOARD SHALL STATE
ITS FINDINGS OF FACT  ...  "  61 STAT. 147, 29 U.S.C. (SUPP. III) SEC.
160(C).  THE RESPONSIBILITY FOR DECISION THUS PLACED ON THE BOARD IS
WHOLLY INCONSISTENT WITH THE NOTION THAT IT HAS POWER TO REVERSE AN
EXAMINER'S FINDINGS ONLY WHEN THEY ARE "CLEARLY ERRONEOUS."  SUCH A
LIMITATION WOULD MAKE SO DRASTIC A DEPARTURE FROM PRIOR ADMINISTRATIVE
PRACTICE THAT EXPLICITNESS WOULD BE REQUIRED. 

THE COURT OF APPEALS CONCLUDED FROM THIS PREMISE "THAT, ALTHOUGH THE
BOARD WOULD BE WRONG IN TOTALLY DISREGARDING HIS FINDINGS, IT IS
PRACTICALLY IMPOSSIBLE FOR A COURT, UPON REVIEW OF THOSE FINDINGS WHICH
THE BOARD ITSELF SUBSTITUTES, TO CONSIDER THE BOARD'S REVERSAL AS A
FACTOR IN THE COURT'S OWN DECISION.  THIS WE SAY, BECAUSE WE CANNOT
FIND ANY MIDDLE GROUND BETWEEN DOING THAT AND TREATING SUCH A REVERSAL
AS ERROR, WHENEVER IT WOULD BE SUCH, IF DONE BY A JUDGE TO A MASTER IN
EQUITY."  179 F.2D AT 753.  MUCH AS WE RESPECT THE LOGICAL ACUMEN OF
THE CHIEF JUDGE OF THE COURT OF APPEALS, WE DO NOT FIND OURSELVES
PINIONED BETWEEN THE HORNS OF HIS DILEMMA. 

WE ARE AWARE THAT TO GIVE THE EXAMINER'S FINDINGS LESS FINALITY THAN
A MASTER'S AND YET ENTITLE THEM TO CONSIDERATION IN STRIKING THE
ACCOUNT, IS TO INTRODUCE ANOTHER AND AN UNRULY FACTOR INTO THE
JUDGMATICAL PROCESS OF REVIEW.  BUT WE OUGHT NOT TO FASHION AN
EXCLUSIONARY RULE MERELY TO REDUCE THE NUMBER OF IMPONDERABLES TO BE
CONSIDERED BY REVIEWING COURTS. 

THE TAFT-HARTLEY ACT PROVIDES THAT "THE FINDINGS OF THE BOARD WITH
RESPECT TO QUESTIONS OF FACT IF SUPPORTED BY SUBSTANTIAL EVIDENCE ON
THE RECORD CONSIDERED AS A WHOLE SHALL BE CONCLUSIVE."  61 STAT. 148,
29 U.S.C. (SUPP. III) SEC. 160(E).  SURELY AN EXAMINER'S REPORT IS AS
MUCH A PART OF THE RECORD AS THE COMPLAINT OR THE TESTIMONY.  ACCORDING
TO THE ADMINISTRATIVE PROCEDURE ACT, "ALL DECISIONS (INCLUDING INITIAL,
RECOMMENDED, OR TENTATIVE DECISIONS) SHALL BECOME A PART OF THE RECORD
...  " SEC. 8(B), 60 STAT. 242, 5 U.S.C. SEC. 1007(B).  WE FOUND THAT
THIS ACT'S PROVISION FOR JUDICIAL REVIEW HAS THE SAME MEANING AS THAT
IN THE TAFT-HARTLEY ACT.  THE SIMILARITY OF THE TWO STATUTES IN
LANGUAGE AND PURPOSE ALSO REQUIRES THAT THE DEFINITION OF "RECORD"
FOUND IN THE ADMINISTRATIVE PROCEDURE ACT BE CONSTRUED TO BE APPLICABLE
AS WELL TO THE TERM "RECORD" AS USED IN THE TAFT-HARTLEY ACT. 

IT IS THEREFORE DIFFICULT TO ESCAPE THE CONCLUSION THAT THE PLAIN
LANGUAGE OF THE STATUTES DIRECTS A REVIEWING COURT TO DETERMINE THE
SUBSTANTIALITY OF EVIDENCE ON THE RECORD INCLUDING THE EXAMINER'S
REPORT.  THE CONCLUSION IS CONFIRMED BY THE INDICATIONS IN THE
LEGISLATIVE HISTORY THAT ENHANCEMENT OF THE STATUS AND FUNCTION OF THE
TRIAL EXAMINER WAS ONE OF THE IMPORTANT PURPOSES OF THE MOVEMENT FOR
ADMINISTRATIVE REFORM. 

THIS AIM WAS SET FORTH BY THE ATTORNEY GENERAL'S COMMITTEE ON
ADMINISTRATIVE PROCEDURE: 

"IN GENERAL, THE RELATIONSHIP UPON APPEAL BETWEEN THE HEARING
COMMISSIONER AND THE AGENCY OUGHT TO A CONSIDERABLE EXTENT TO BE THAT
OF TRIAL COURT TO APPELLATE COURT.  CONCLUSIONS, INTERPRETATIONS, LAW,
AND POLICY SHOULD, OF COURSE, BE OPEN TO FULL REVIEW.  ON THE OTHER
HAND, ON MATTERS WHICH THE HEARING COMMISSIONER, HAVING HEARD THE
EVIDENCE AND SEEN THE WITNESSES, IS BEST QUALIFIED TO DECIDE, THE
AGENCY SHOULD BE RELUCTANT TO DISTURB HIS FINDINGS UNLESS ERROR IS
CLEARLY SHOWN."  FN25 

APPARENTLY IT WAS THE COMMITTEE'S OPINION THAT THESE RECOMMENDATIONS
SHOULD NOT BE OBLIGATORY.  FOR THE BILL WHICH ACCOMPANIED THE FINAL
REPORT REQUIRED ONLY THAT HEARING OFFICERS MAKE AN INITIAL DECISION
WHICH WOULD BECOME FINAL IN THE ABSENCE OF FURTHER AGENCY ACTION, AND
THAT AGENCIES WHICH DIFFERED ON THE FACTS FROM THEIR EXAMINERS GIVE
REASONS AND RECORD CITATIONS SUPPORTING THEIR CONCLUSION.  FN26  THIS
PROPOSAL WAS FURTHER MODERATED BY THE ADMINISTRATIVE PROCEDURE ACT.  IT
PERMITS AGENCIES TO USE EXAMINERS TO RECORD TESTIMONY BUT NOT TO
EVALUATE IT, AND CONTAINS THE RATHER OBSCURE PROVISION THAT AN AGENCY
WHICH REVIEWS AN EXAMINER'S REPORT HAS "ALL THE POWERS WHICH IT WOULD
HAVE IN MAKING THE INITIAL DECISION."  FN27 

BUT THIS REFUSAL TO MAKE MANDATORY THE RECOMMENDATIONS OF THE
ATTORNEY GENERAL'S COMMITTEE SHOULD NOT BE CONSTRUED AS A REPUDIATION
OF THEM.  NOTHING IN THE STATUTES SUGGESTS THAT THE LABOR BOARD SHOULD
NOT BE INFLUENCED BY THE EXAMINER'S OPPORTUNITY TO OBSERVE THE
WITNESSES HE HEARS AND SEES AND THE BOARD DOES NOT.  NOTHING SUGGESTS
THAT REVIEWING COURTS SHOULD NOT GIVE TO THE EXAMINER'S REPORT SUCH
PROBATIVE FORCE AS IT INTRINSICALLY COMMANDS.  TO THE CONTRARY, SEC. 11
OF THE ADMINISTRATIVE PROCEDURE ACT CONTAINS DETAILED PROVISIONS
DESIGNED TO MAINTAIN HIGH STANDARDS OF INDEPENDENCE AND COMPETENCE IN
EXAMINERS.  SECTION 10(C) OF THE LABOR MANAGEMENT RELATIONS ACT
REQUIRES THAT EXAMINERS "SHALL ISSUE  ...  A PROPOSED REPORT, TOGETHER
WITH A RECOMMENDED ORDER."  BOTH STATUTES THUS EVINCE A PURPOSE TO
INCREASE THE IMPORTANCE OF THE ROLE OF EXAMINERS IN THE ADMINISTRATIVE
PROCESS.  HIGH STANDARDS OF PUBLIC ADMINISTRATION COUNSEL THAT WE
ATTRIBUTE TO THE LABOR BOARD'S EXAMINERS BOTH DUE REGARD FOR THE
RESPONSIBILITY WHICH CONGRESS IMPOSES ON THEM AND THE COMPETENCE TO
DISCHARGE IT.  FN28 

THE COMMITTEE REPORTS ALSO MAKE IT CLEAR THAT THE SPONSORS OF THE
LEGISLATION THOUGHT THE STATUTES GAVE SIGNIFICANCE TO THE FINDINGS OF
EXAMINERS.  THUS, THE SENATE COMMITTEE RESPONSIBLE FOR THE
ADMINISTRATIVE PROCEDURE ACT EXPLAINED IN ITS REPORT THAT EXAMINERS'
DECISIONS "WOULD BE OF CONSEQUENCE, FOR EXAMPLE, TO THE EXTENT THAT
MATERIAL FACTS IN ANY CASE DEPEND ON THE DETERMINATION OF CREDIBILITY
OF WITNESSES AS SHOWN BY THEIR DEMEANOR OR CONDUCT AT THE HEARING." 
FN29  THE HOUSE REPORT REFLECTS THE SAME ATTITUDE; FN30  AND THE SENATE
COMMITTEE REPORT ON THE TAFT-HARTLEY ACT LIKEWISE INDICATES REGARD FOR
THE RESPONSIBILITY DEVOLVING ON THE EXAMINER.  FN31    WE DO NOT
REQUIRE THAT THE EXAMINER'S FINDINGS BE GIVEN MORE WEIGHT THAN IN
REASON AND IN THE LIGHT OF JUDICIAL EXPERIENCE THEY DESERVE.  THE
"SUBSTANTIAL EVIDENCE" STANDARD IS NOT MODIFIED IN ANY WAY WHEN THE
BOARD AND ITS EXAMINER DISAGREE.  WE INTEND ONLY TO RECOGNIZE THAT
EVIDENCE SUPPORTING A CONCLUSION MAY BE LESS SUBSTANTIAL WHEN AN
IMPARTIAL, EXPERIENCED EXAMINER WHO HAS OBSERVED THE WITNESSES AND
LIVED WITH THE CASE HAS DRAWN CONCLUSIONS DIFFERENT FROM THE BOARD'S
THAN WHEN HE HAS REACHED THE SAME CONCLUSION.  THE FINDINGS OF THE
EXAMINER ARE TO BE CONSIDERED ALONG WITH THE CONSISTENCY AND INHERENT
PROBABILITY OF TESTIMONY.  THE SIGNIFICANCE OF HIS REPORT, OF COURSE,
DEPENDS LARGELY ON THE IMPORTANCE OF CREDIBILITY IN THE PARTICULAR
CASE.  TO GIVE IT THIS SIGNIFICANCE DOES NOT SEEM TO US MATERIALLY MORE
DIFFICULT THAN TO HEED THE OTHER FACTORS WHICH IN SUM DETERMINE WHETHER
EVIDENCE IS "SUBSTANTIAL." 

THE DIRECTION IN WHICH THE LAW MOVES IS OFTEN A GUIDE FOR DECISION OF
PARTICULAR CASES, AND HERE IT SERVES TO CONFIRM OUR CONCLUSION. 
HOWEVER HALTING ITS PROGRESS, THE TREND IN LITIGATION IS TOWARD A
RATIONAL INQUIRY INTO TRUTH, IN WHICH THE TRIBUNAL CONSIDERS EVERYTHING
"LOGICALLY PROBATIVE OF SOME MATTER REQUIRING TO BE PROVED."  THAYER, A
PRELIMINARY TREATISE ON EVIDENCE, 530; FUNK V. UNITED STATES, 290 U.S.
371.  THIS COURT HAS REFUSED TO ACCEPT ASSUMPTIONS OF FACT WHICH ARE
DEMONSTRABLY FALSE, UNITED STATES V. PROVIDENT TRUST CO., 291 U.S. 272,
EVEN WHEN AGREED TO BY THE PARTIES, SWIFT & CO. V. HOCKING VALLEY R.
CO., 243 U.S. 281.  MACHINERY FOR DISCOVERY OF EVIDENCE HAS BEEN
STRENGTHENED; THE BOUNDARIES OF JUDICIAL NOTICE HAVE BEEN SLOWLY BUT
PERCEPTIBLY ENLARGED.  IT WOULD REVERSE THIS PROCESS FOR COURTS TO DENY
EXAMINERS' FINDINGS THE PROBATIVE FORCE THEY WOULD HAVE IN THE CONDUCT
OF AFFAIRS OUTSIDE A COURTROOM. 

WE THEREFORE REMAND THE CAUSE TO THE COURT OF APPEALS.  ON
RECONSIDERATION OF THE RECORD IT SHOULD ACCORD THE FINDINGS OF THE
TRIAL EXAMINER THE RELEVANCE THAT THEY REASONABLY COMMAND IN ANSWERING
THE COMPREHENSIVE QUESTION WHETHER THE EVIDENCE SUPPORTING THE BOARD'S
ORDER IS SUBSTANTIAL.  BUT THE COURT NEED NOT LIMIT ITS REEXAMINATION
OF THE CASE TO THE EFFECT OF THAT REPORT ON ITS DECISION.  WE LEAVE IT
FREE TO GRANT OR DENY ENFORCEMENT AS IT THINKS THE PRINCIPLES EXPRESSED
IN THIS OPINION DICTATE.  JUDGMENT VACATED AND CAUSE REMANDED. 

FN1  LABOR BOARD V. PITTSBURGH STEAMSHIP CO., 180 F.2D 731, AFFIRMED,
POST, P. 498.  THE COURTS OF APPEALS OF FIVE CIRCUITS HAVE AGREED WITH
THE COURT OF APPEALS FOR THE SECOND CIRCUIT THAT NO MATERIAL CHANGE WAS
MADE IN THE REVIEWING POWER.  EASTERN COAL CORP. V. LABOR BOARD, 176
F.2D 131, 134-136(C.A.4TH CIR.); LABOR BOARD V. LA SALLE STEEL CO., 178
F.2D 829, 833-834(C.A.7TH CIR.); LABOR BOARD V. MINNESOTA MINING & MFG.
CO., 179 F.2D 323, 325-326(C.A.8TH CIR.); LABOR BOARD V. CONTINENTAL
OIL CO., 179 F.2D 552, 555(C.A. 10TH CIR.); LABOR BOARD V. BOOKER, 180
F.2D 727, 729(C.A.5TH CIR.); BUT SEE LABOR BOARD V. CAROLINE MILLS,
INC., 167 F.2D 212, 213(C.A.5TH CIR.). 

FN2  SEE THE TESTIMONY OF DEAN STASON BEFORE THE SUBCOMMITTEE OF THE
SENATE COMMITTEE ON THE JUDICIARY IN 1941.  HEARINGS ON S. 674, 77TH
CONG., 1ST SESS. 1355-1360. 

FN3  SEE, FOR EXAMPLE, THE REMARKS OF LAIRD BELL, THEN CHAIRMAN OF
THE COMMITTEE ON ADMINISTRATIVE LAW OF THE CHICAGO BAR ASSOCIATION,
WRITING IN 1940 IN THE AMERICAN BAR ASSOCIATION JOURNAL.  26 A.B. A.J.
552. 

FN4  SEE GALL, THE CURRENT LABOR PROBLEM:  THE VIEW OF INDUSTRY, 27
IOWA L. REV. 381, 382. 

FN5  THIS CHARGE WAS MADE BY THE MAJORITY OF THE SPECIAL COMMITTEE OF
THE HOUSE APPOINTED IN 1939 TO INVESTIGATE THE NATIONAL LABOR RELATIONS
BOARD.  H.R. REP. NO. 1902, 76TH CONG., 3D SESS. 76. 

FN6  PROFESSOR GELLHORN AND MR. LINFIELD REACHED THE CONCLUSION IN
1939 AFTER AN EXTENDED INVESTIGATION THAT "THE DENUNCIATIONS FIND NO
SUPPORT IN FACT."  GELLHORN AND LINFIELD, POLITICS AND LABOR RELATIONS,
39 COL. L. REV. 339, 394.  SEE ALSO MILLIS AND BROWN, FROM THE WAGNER
ACT TO TAFT-HARTLEY, 66-75. 

FN7  WILSON & CO. V. LABOR BOARD, 126 F.2D 114, 117. 

FN8  IN LABOR BOARD V. STANDARD OIL CO., 138 F.2D 885, 887, JUDGE
LEARNED HAND SAID, "WE UNDERSTAND THE LAW TO BE THAT THE DECISION OF
THE BOARD UPON THAT ISSUE IS FOR ALL PRACTICAL PURPOSES NOT OPEN TO US
AT ALL; CERTAINLY NOT AFTER WE HAVE ONCE DECIDED THAT THERE WAS
'SUBSTANTIAL' EVIDENCE THAT THE 'DISESTABLISHED' UNION WAS IMMEDIATELY
PRECEDED BY A PERIOD DURING WHICH THERE WAS A 'DOMINATED' UNION.  ... 

"(WE) RECOGNIZE HOW MOMENTOUS MAY BE SUCH AN ABDICATION OF ANY POWER
OF REVIEW  ...  " 

FN9  86 CONG. REC. 13942-13943, REPRINTED AS H.R. DOC. NO. 986, 76TH
CONG., 3D SESS. 

FN10  S. 915, H.R. 6324, 76TH CONG., 1ST SESS., SEC. 5(A). 

FN11  FINAL REPORT, 92. 

FN12  REFERRING TO PROPOSALS TO ENLARGE THE SCOPE OF REVIEW TO PERMIT
INQUIRY WHETHER THE FINDINGS ARE SUPPORTED BY THE WEIGHT OF THE
EVIDENCE, THE MAJORITY SAID: 

"ASSUMING THAT SUCH A CHANGE MAY BE DESIRABLE WITH RESPECT TO SPECIAL
ADMINISTRATIVE DETERMINATIONS, THERE IS SERIOUS OBJECTION TO ITS
ADOPTION FOR GENERAL APPLICATION. 

"IN THE FIRST PLACE THERE IS THE QUESTION OF HOW MUCH CHANGE, IF ANY,
THE AMENDMENT WOULD PRODUCE.  THE RESPECT THAT COURTS HAVE FOR THE
JUDGMENTS OF SPECIALIZED TRIBUNALS WHICH HAVE CAREFULLY CONSIDERED THE
PROBLEMS AND THE EVIDENCE CANNOT BE LEGISLATED AWAY.  THE LINE BETWEEN
'SUBSTANTIAL EVIDENCE' AND 'WEIGHT OF EVIDENCE' IS NOT EASILY DRAWN -
PARTICULARLY WHEN THE COURT IS CONFINED TO A WRITTEN RECORD, HAS A
LIMITED AMOUNT OF TIME, AND HAS NO OPPORTUNITY FURTHER TO QUESTION
WITNESSES ON TESTIMONY WHICH SEEMS HAZY OR LEAVES SOME LINGERING DOUBTS
UNANSWERED.  'SUBSTANTIAL EVIDENCE' MAY WELL BE EQUIVALENT TO THE
'WEIGHT OF EVIDENCE' WHEN A TRIBUNAL IN WHICH ONE HAS CONFIDENCE AND
WHICH HAD GREATER OPPORTUNITIES FOR ACCURATE DETERMINATION HAS ALREADY
SO DECIDED. 

"IN THE SECOND PLACE THE WISDOM OF A GENERAL CHANGE TO REVIEW OF THE
'WEIGHT OF EVIDENCE' IS QUESTIONABLE.  IF THE CHANGE WOULD REQUIRE THE
COURTS TO DETERMINE INDEPENDENTLY WHICH WAY THE EVIDENCE PREPONDERATES,
ADMINISTRATIVE TRIBUNALS WOULD BE TURNED INTO LITTLE MORE THAN MEDIA
FOR TRANSMISSION OF THE EVIDENCE TO THE COURTS.  IT WOULD DESTROY THE
VALUES OF ADJUDICATION OF FACT BY EXPERTS OR SPECIALISTS IN THE FIELD
INVOLVED.  IT WOULD DIVIDE THE RESPONSIBILITY FOR ADMINISTRATIVE
ADJUDICATIONS."  FINAL REPORT, 91-92. 

FN13  ID., 210-211. 

FN14  THE MINORITY ENUMERATED FOUR "EXISTING DEFICIENCIES" IN
JUDICIAL REVIEW.  THESE WERE (1) "THE HAPHAZARD, UNCERTAIN, AND
VARIABLE RESULTS OF THE PRESENT SYSTEM OR LACK OF SYSTEM OF JUDICIAL
REVIEW," (2) THE INTERPRETATION PERMITTING SUBSTANTIALITY TO BE
DETERMINED WITHOUT TAKING INTO ACCOUNT CONFLICTING EVIDENCE, (3) THE
FAILURE OF EXISTING FORMULAS "TO TAKE ACCOUNT OF DIFFERENCES BETWEEN
THE VARIOUS TYPES OF FACT DETERMINATIONS," AND (4) THE PRACTICE OF
DETERMINING STANDARDS OF REVIEW BY "CASE-TO-CASE PROCEDURE OF THE
COURTS."  THEY RECOMMENDED THAT 

"UNTIL CONGRESS FINDS IT PRACTICABLE TO EXAMINE INTO THE SITUATION OF
PARTICULAR AGENCIES, IT SHOULD PROVIDE MORE DEFINITELY BY GENERAL
LEGISLATION FOR BOTH THE AVAILABILITY AND SCOPE OF JUDICIAL REVIEW IN
ORDER TO REDUCE UNCERTAINTY AND VARIABILITY.  AS THE COMMITTEE
RECOGNIZES IN ITS REPORT, THERE ARE SEVERAL PRINCIPAL SUBJECTS OF
JUDICIAL REVIEW - INCLUDING CONSTITUTIONAL QUESTIONS, STATUTORY
INTERPRETATION, PROCEDURE, AND THE SUPPORT OF FINDINGS OF FACT BY
ADEQUATE EVIDENCE.  THE LAST OF THESE SHOULD, OBVIOUSLY WE THINK, MEAN
SUPPORT OF ALL FINDINGS OF FACT, INCLUDING INFERENCES AND CONCLUSION OF
FACT, UPON THE WHOLE RECORD.  SUCH A LEGISLATIVE PROVISION SHOULD,
HOWEVER, BE QUALIFIED BY A DIRECTION TO THE COURTS TO RESPECT THE
EXPERIENCE, TECHNICAL COMPETENCE, SPECIALIZED KNOWLEDGE, AND
DISCRETIONARY AUTHORITY OF EACH AGENCY.  WE HAVE FRAMED SUCH A
PROVISION IN THE APPENDIX TO THIS STATEMENT."  ID., 210-212. 

THE TEXT OF THE RECOMMENDED PROVISION IS AS FOLLOWS: 

"(E)  SCOPE OF REVIEW.  - AS TO THE FINDINGS, CONCLUSIONS, AND
DECISIONS IN ANY CASE, THE REVIEWING COURT, REGARDLESS OF THE FORM OF
THE REVIEW PROCEEDING, SHALL CONSIDER AND DECIDE SO FAR AS NECESSARY TO
ITS DECISION AND WHERE RAISED BY THE PARTIES, ALL RELEVANT QUESTIONS
OF:  (1) CONSTITUTIONAL RIGHT, POWER, PRIVILEGE, OR IMMUNITY; (2) THE
STATUTORY AUTHORITY OR JURISDICTION OF THE AGENCY; (3) THE LAWFULNESS
AND ADEQUACY OF PROCEDURE; (4) FINDINGS, INFERENCES, OR CONCLUSIONS OF
FACT UNSUPPORTED, UPON THE WHOLE RECORD, BY SUBSTANTIAL EVIDENCE; AND
(5) ADMINISTRATIVE ACTION OTHERWISE ARBITRARY OR CAPRICIOUS.  PROVIDED,
HOWEVER, THAT UPON SUCH REVIEW DUE WEIGHT SHALL BE ACCORDED THE
EXPERIENCE, TECHNICAL COMPETENCE, SPECIALIZED KNOWLEDGE, AND
LEGISLATIVE POLICY OF THE AGENCY INVOLVED AS WELL AS THE DISCRETIONARY
AUTHORITY CONFERRED UPON IT."  ID., 246-247. 

FN15  60 STAT. 237, 5 U.S.C. SEC. 1001 ET SEQ. THE FORM FINALLY
ADOPTED READS AS FOLLOWS: 

"SEC. 10.  EXCEPT SO FAR AS (1) STATUTES PRECLUDE JUDICIAL REVIEW OR
(2) AGENCY ACTION IS BY LAW COMMITTED TO AGENCY DISCRETION - 

     .         .         .         .         . 

"(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. 243-244, 5 U.S.C. SEC. 1009(E). 

IN THE FORM IN WHICH THE BILL WAS ORIGINALLY PRESENTED TO CONGRESS,
CLAUSE (B)(5) READ, "UNSUPPORTED BY COMPETENT, MATERIAL, AND
SUBSTANTIAL EVIDENCE UPON THE WHOLE AGENCY RECORD AS REVIEWED BY THE
COURT IN ANY CASE SUBJECT TO THE REQUIREMENTS OF SECTIONS 7 AND 8." 
H.R. 1203, 79TH CONG., 1ST SESS., QUOTED IN S. DOC. NO. 248, 79TH
CONG., 2D SESS. 155, 160.  REFERENCES TO COMPETENCY AND MATERIALITY OF
EVIDENCE WERE DELETED AND THE FINAL SENTENCE ADDED BY THE SENATE
COMMITTEE.  S. REP. NO. 752, 79TH CONG., 1ST SESS. 28; S. DOC. NO. 248,
SUPRA, 39-40, 214.  NO REASON WAS GIVEN FOR THE DELETION. 

FN16  A STATEMENT OF THE ATTORNEY GENERAL APPENDED TO THE SENATE
REPORT EXPLAINED THAT THE BILL "IS INTENDED TO EMBODY THE LAW AS
DECLARED, FOR EXAMPLE, IN CONSOLIDATED EDISON CO. V. NATIONAL LABOR
RELATIONS BOARD (305 U.S. 197)."  SECTION 10(E) OF APPENDIX B TO S.
REP. NO. 752, SUPRA, REPRINTED IN S. DOC. NO. 248, SUPRA, 230.  MR.
MCFARLAND, THEN CHAIRMAN OF THE AMERICAN BAR ASSOCIATION COMMITTEE ON
ADMINISTRATIVE LAW, TESTIFIED BEFORE THE HOUSE JUDICIARY COMMITTEE TO
THE SAME EFFECT.  ID., 85-86. 

FN17  THE FOLLOWING QUOTATION FROM THE REPORT OF THE SENATE JUDICIARY
COMMITTEE INDICATES THE POSITION OF THE SPONSORS.  "THE 'SUBSTANTIAL
EVIDENCE' RULE SET FORTH IN SECTION 10(E) IS EXCEEDINGLY IMPORTANT.  AS
A MATTER OF LANGUAGE, SUBSTANTIAL EVIDENCE WOULD SEEM TO BE AN ADEQUATE
EXPRESSION OF LAW.  THE DIFFICULTY COMES ABOUT IN THE PRACTICE OF
AGENCIES TO RELY UPON (AND OF COURTS TO TACITLY APPROVE) SOMETHING LESS
- TO RELY UPON SUSPICION, SURMISE, IMPLICATIONS, OR PLAINLY INCREDIBLE
EVIDENCE.  IT WILL BE THE DUTY OF THE COURTS TO DETERMINE IN THE FINAL
ANALYSIS AND IN THE EXERCISE OF THEIR INDEPENDENT JUDGMENT, WHETHER ON
THE WHOLE RECORD THE EVIDENCE IN A GIVEN INSTANCE IS SUFFICIENTLY
SUBSTANTIAL TO SUPPORT A FINDING, CONCLUSION, OR OTHER AGENCY ACTION AS
A MATTER OF LAW.  IN THE FIRST INSTANCE, HOWEVER, IT WILL BE THE
FUNCTION OF THE AGENCY TO DETERMINE THE SUFFICIENCY OF THE EVIDENCE
UPON WHICH IT ACTS - AND THE PROPER PERFORMANCE OF ITS PUBLIC DUTIES
WILL REQUIRE IT TO UNDERTAKE THIS INQUIRY IN A CAREFUL AND
DISPASSIONATE MANNER.  SHOULD THESE OBJECTIVES OF THE BILL AS WORDED
FAIL, SUPPLEMENTAL LEGISLATION WILL BE REQUIRED."  S. REP. NO. 752,
SUPRA, 30-31.  THE HOUSE COMMITTEE REPORT IS TO SUBSTANTIALLY THE SAME
EFFECT.  H.R. REP. NO. 1980, 79TH CONG., 2D SESS. 45.  THE REPORTS ARE
REPRINTED IN S. DOC. NO. 248, SUPRA, 216-217, 279. 

SEE ALSO THE RESPONSE OF SENATOR MCCARRAN IN DEBATE, TO THE EFFECT
THAT THE BILL CHANGED THE "RULE" THAT COURTS WERE "POWERLESS TO
INTERFERE" WHEN THERE "WAS NO PROBATIVE EVIDENCE."  ID., 322.  AND SEE
THE COMMENT OF CONGRESSMAN SPRINGER, A MEMBER OF THE HOUSE JUDICIARY
COMMITTEE, ID., 376. 

FN18  61 STAT. 136, 29 U.S.C. (SUPP. III) SEC. 141 ET SEQ. 

FN19  H.R. 3020, 80TH CONG., 1ST SESS., SEC. 10(E), REPRINTED IN 1
LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, P.
71. 

FN20  THE HISTORY OF THE EVOLUTION OF THE SENATE PROVISION WAS GIVEN
BY SENATOR MORSE.  93 CONG. REC. 5108, REPRINTED IN 2 LEGISLATIVE
HISTORY 1504-1505.  THE PRINTS WERE NOT APPROVED BY THE COMMITTEE. 
FN21  S. REP. NO. 105, 80TH CONG., 1ST SESS. 26-27, REPRINTED IN 1
LEGISLATIVE HISTORY 432-433.  THE COMMITTEE DID NOT EXPLAIN WHAT THE
AMBIGUITY MIGHT BE; AND IT IS TO BE NOTED THAT THE PHRASE IT ITALICIZED
IS INDISTINGUISHABLE IN CONTENT FROM THE REQUIREMENT OF SEC. 10(E) OF
THE ADMINISTRATIVE PROCEDURE ACT THAT "THE COURT SHALL REVIEW THE WHOLE
RECORD OR SUCH PORTIONS THEREOF AS MAY BE CITED BY ANY PARTY  ...  " 

SENATOR TAFT GAVE THIS EXPLANATION TO THE SENATE OF THE MEANING OF
THE SECTION:  "IN THE FIRST PLACE, THE EVIDENCE MUST BE SUBSTANTIAL; IN
THE SECOND PLACE, IT MUST STILL LOOK SUBSTANTIAL WHEN VIEWED IN THE
LIGHT OF THE ENTIRE RECORD.  THAT DOES NOT GO SO FAR AS SAYING THAT A
DECISION CAN BE REVERSED ON THE WEIGHT OF THE EVIDENCE.  IT DOES NOT GO
QUITE SO FAR AS THE POWER GIVEN TO A CIRCUIT COURT OF APPEALS TO REVIEW
A DISTRICT-COURT DECISION, BUT IT GOES A GREAT DEAL FURTHER THAN THE
PRESENT LAW, AND GIVES THE COURT GREATER OPPORTUNITY TO REVERSE AN
OBVIOUSLY UNJUST DECISION ON THE PART OF THE NATIONAL LABOR RELATIONS
BOARD."  93 CONG. REC. 3839, REPRINTED IN 2 LEGISLATIVE HISTORY 1014. 

FN22  H.R. REP. NO. 510, 80TH CONG., 1ST SESS. 56, REPRINTED IN 1
LEGISLATIVE HISTORY 560.  IN LABOR BOARD V. NEVADA CONSOLIDATED COPPER
CORP., 316 U.S. 105, 107, WE REVERSED A JUDGMENT REFUSING TO ENFORCE A
BOARD ORDER BECAUSE "UPON AN EXAMINATION OF THE RECORD WE CANNOT SAY
THAT THE FINDINGS OF FACT OF THE BOARD ARE WITHOUT SUPPORT IN THE
EVIDENCE."  THE SUFFICIENCY OF EVIDENCE TO SUPPORT FINDINGS OF FACT IS
NOT INVOLVED IN THE THREE OTHER DECISIONS OF THIS COURT TO WHICH
REFERENCE WAS MADE.  LABOR BOARD V. HEARST PUBLICATIONS, INC., 322 U.S.
111; REPUBLIC AVIATION CORP. V. LABOR BOARD AND LABOR BOARD V. LE
TOURNEAU CO., 324 U.S. 793.  THE LANGUAGE USED BY THE COURT OFFERS A
PROBABLE EXPLANATION FOR INCLUDING TWO OF THE DECISIONS OF COURTS OF
APPEALS.  IN WILSON & CO. V. LABOR BOARD, 126 F.2D 114, 117, THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT SUSTAINED A FINDING THAT THE
EMPLOYER DOMINATED A COMPANY UNION AFTER STATING THAT IT HAD
"RECOGNIZED (OR TRIED TO) THAT FINDINGS MUST BE SUSTAINED, EVEN WHEN
THEY ARE CONTRARY TO THE GREAT WEIGHT OF THE EVIDENCE, AND WE HAVE
IGNORED, OR AT LEAST ENDEAVORED TO IGNORE, THE SHOCKING INJUSTICES
WHICH SUCH FINDINGS, OPPOSED TO THE OVERWHELMING WEIGHT OF THE
EVIDENCE, PRODUCE."  LABOR BOARD V. COLUMBIA PRODUCTS CORP., 141 F.2D
687, 688, IS A PER CURIAM DECISION OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT SUSTAINING A FINDING OF DISCRIMINATORY DISCHARGE.  THE
COURT SAID OF THE BOARD'S DECISION ON A QUESTION OF FACT, "THOUGH IT
MAY STRAIN OUR CREDULITY, IF IT DOES NOT QUITE BREAK IT DOWN, WE MUST
ACCEPT IT  ...  "  THE REASON FOR DISAPPROVAL OF LABOR BOARD V. UNION
PACIFIC STAGES, 99 F.2D 153, IS NOT APPARENT.  THE COURT OF APPEALS FOR
THE NINTH CIRCUIT THERE ENFORCED THE PORTION OF THE BOARD'S ORDER
DIRECTING THE COMPANY TO DISAVOW A POLICY OF DISCRIMINATION AGAINST
UNION MEMBERS, ON THE GROUND THAT THERE APPEARED "TO BE EVIDENCE,
ALTHOUGH DISPUTED," THAT SOME COMPANY OFFICIALS HAD DISCOURAGED
EMPLOYEES FROM JOINING.  99 F.2D AT 179.  THE BULK OF THE LENGTHY
OPINION, HOWEVER, IS DEVOTED TO A DISCUSSION OF THE FACTS TO SUPPORT
THE COURT'S CONCLUSION THAT THE BOARD'S FINDINGS OF DISCRIMINATORY
DISCHARGES SHOULD NOT BE SUSTAINED. 

FN23  LABOR BOARD V. STANDARD OIL CO., 138 F.2D 885; LABOR BOARD V.
COLUMBIA PRODUCTS CORP., 141 F.2D 687.  SEE NOTES 8 AND 22, SUPRA. 

FN24  RULE 53(E)(2), FED. RULES CIV. PROC., GIVES FINALITY TO THE
FINDINGS OF A MASTER UNLESS THEY ARE CLEARLY ERRONEOUS. 

THE COURT'S RULING EXCLUDING FROM CONSIDERATION DISAGREEMENT BETWEEN
THE BOARD AND THE EXAMINER WAS IN APPARENT CONFLICT WITH THE VIEWS OF
THREE OTHER CIRCUITS.  LABOR BOARD V. OHIO CALCIUM CO., 133 F.2D 721,
724(C.A.6TH CIR.); A.E. STALEY MFG. CO. V. LABOR BOARD, 117 F.2D 868,
878(C.A.7TH CIR.); WILSON & CO. V. LABOR BOARD, 123 F.2D 411,
418(C.A.8TH CIR.); CF. INTERNATIONAL ASSN. OF MACHINISTS V. LABOR
BOARD, 71 APP. D.C. 175, 180, 110 F.2D 29, 34(C.A.D.C. CIR.). 

FN25  FINAL REPORT, 51. 

FN26  SECS. 308(1) AND 309(2) OF THE PROPOSED BILL, QUOTED IN FINAL
REPORT, 200, 201. 

FN27  SEC. 8(A), 60 STAT. 242, 5 U.S.C. SEC. 1007(A).  THE QUOTED
PROVISION DID NOT APPEAR IN THE BILL IN THE FORM IN WHICH IT WAS
INTRODUCED INTO THE SENATE.  S. 7, 79TH CONG., 1ST SESS., SEC. 7.  IT
WAS ADDED BY THE SENATE JUDICIARY COMMITTEE.  THE COMMITTEE PUBLISHED
ITS REASONS FOR MODIFYING THE EARLIER DRAFT, BUT GAVE NO EXPLANATION
FOR THIS PARTICULAR CHANGE.  SEE S. DOC. NO. 248, SUPRA, 32-33.  IT IS
LIKELY THAT THE SENTENCE WAS INTENDED TO EMBODY A CLAUSE IN THE DRAFT
PREPARED BY THE ATTORNEY GENERAL'S COMMITTEE, WHICH PROVIDED THAT ON
REVIEW OF A CASE DECIDED INITIALLY BY AN EXAMINER AN AGENCY SHOULD HAVE
JURISDICTION TO REMAND OR TO "AFFIRM, REVERSE, MODIFY, OR SET ASIDE IN
WHOLE OR IN PART THE DECISION OF THE HEARING COMMISSIONER, OR ITSELF TO
MAKE ANY FINDING WHICH IN ITS JUDGMENT IS PROPER UPON THE RECORD." 
SEC. 309(2), FINAL REPORT, 201.  THE SUBSTANCE OF THIS RECOMMENDATION
WAS INCLUDED IN BILLS INTRODUCED INTO THE HOUSE.  H.R. 184, 79TH CONG.,
1ST SESS., SEC. 309(2), AND H.R. 339, 79TH CONG., 1ST SESS., SEC. 7(C),
BOTH QUOTED IN S. DOC. NO. 248, SUPRA, 138, 143. 

FN28  SALARIES OF TRIAL EXAMINERS RANGE FROM $7,600 TO $10,750 PER
YEAR.  SEE APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT FOR
THE FISCAL YEAR ENDING JUNE 30, 1952, P. 47. 

FN29  S. REP. NO. 752, SUPRA, 24, REPRODUCED IN S. DOC. NO. 248,
SUPRA, 210. 

FN30  H.R. REP. NO. 1980, 79TH CONG., 2D SESS. 38-39, REPRINTED IN S.
DOC. NO. 248, SUPRA, 272-273.  THE HOUSE REPORT ADDED THAT "IN A BROAD
SENSE THE AGENCIES' REVIEWING POWERS ARE TO BE COMPARED WITH THAT OF
COURTS UNDER SECTION 10(E) OF THE BILL."  THE LANGUAGE OF THE STATUTE
OFFERS NO SUPPORT FOR THIS STATEMENT. 

FN31  S. REP. NO. 105, 80TH CONG., 1ST SESS. 9, QUOTED IN 1
LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, P.
415. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR WITH PARTS I AND II
OF THIS OPINION BUT AS TO PART III AGREE WITH THE OPINION OF THE COURT
BELOW, 179 F.2D 749, 753. 
..END :







LABOR BOARD V. PITTSBURGH S.S. CO., 340 U.S. 498 


NO. 42.  ARGUED NOVEMBER 6, 1950.  - DECIDED FEBRUARY 26, 1951.  - 180
F.2D 731, AFFIRMED. 


PRIOR TO 1947, THE NATIONAL LABOR RELATIONS BOARD ORDERED RESPONDENT
TO REINSTATE A DISMISSED EMPLOYEE AND TO TERMINATE WHAT WERE FOUND TO
BE COERCIVE AND DISCRIMINATORY LABOR PRACTICES.  AFTER 1947, THE COURT
OF APPEALS MADE A PAINSTAKING REVIEW OF THE RECORD AND UNANIMOUSLY
CONCLUDED THAT THE INFERENCES ON WHICH THE BOARD'S FINDINGS WERE BASED
WERE SO OVERBORNE BY EVIDENCE CALLING FOR CONTRARY INFERENCES THAT THE
FINDINGS OF THE BOARD COULD NOT, "ON THE RECORD CONSIDERED AS A WHOLE,"
BE DEEMED SUPPORTED BY "SUBSTANTIAL" EVIDENCE WITHIN THE MEANING OF
SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR
MANAGEMENT RELATIONS ACT, 1947.  ACCORDINGLY IT DENIED ENFORCEMENT OF
THE BOARD'S ORDER.  HELD:  THE JUDGMENT BELOW IS AFFIRMED.  PP. 499
503. 

1.  THE COURT OF APPEALS CORRECTLY HELD THAT THE AMENDMENTS MADE BY
THE LABOR MANAGEMENT RELATIONS ACT, 1947, BROADENED THE SCOPE OF
JUDICIAL REVIEW OF THE BOARD'S ORDERS BEYOND THAT REQUIRED BY THE
ORIGINAL NATIONAL LABOR RELATIONS ACT.  UNIVERSAL CAMERA CORP. V. LABOR
BOARD, ANTE, P. 474.  P. 500. 

2.  THE SCOPE OF THE COURT'S REVIEWING POWER WAS GOVERNED BY THE
LEGISLATION IN FORCE AT THE TIME THE POWER WAS EXERCISED, EVEN THOUGH
THE BOARD'S ORDER ANTEDATED SUCH LEGISLATION.  P. 500. 

3.  CONGRESS HAS CHARGED THE COURTS OF APPEALS AND NOT THIS COURT
WITH THE NORMAL AND PRIMARY RESPONSIBILITY FOR GRANTING OR DENYING
ENFORCEMENT OF LABOR BOARD ORDERS.  P. 502. 

4.  IN REVIEWING A DECISION OF A COURT OF APPEALS ON THE QUESTION
WHETHER AN ORDER OF THE BOARD IS SUPPORTED BY SUBSTANTIAL EVIDENCE ON
THE RECORD AS A WHOLE, THIS COURT OUGHT TO DO NO MORE THAN DECIDE
WHETHER THE COURT OF APPEALS HAS MADE A FAIR ASSESSMENT OF THE RECORD
ON THE ISSUE OF SUBSTANTIALITY.  PP. 502-503. 

NATIONAL LABOR RELATIONS BOARD V. PITTSBURGH STEAMSHIP CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

THE COURT OF APPEALS FOUND AN ORDER OF THE NATIONAL LABOR RELATIONS
BOARD TO BE UNSUPPORTED BY SUBSTANTIAL EVIDENCE WITHIN THE MEANING OF
SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, AND DENIED
ENFORCEMENT.  180 F.2D 731.  THIS COURT GRANTED CERTIORARI.  339 U.S.
951.  AFFIRMED, P. 503. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THIS CASE HERE BECAUSE ON AN IMPORTANT PHASE IN THE
ADMINISTRATION OF THE NATIONAL LABOR RELATIONS ACT IT WAS IN CONFLICT
WITH UNIVERSAL CAMERA CORP. V. LABOR BOARD, 179 F.2D 749, JUST DECIDED,
ANTE, P. 474.  OUR DECISION IN THAT CASE CONTROLS THIS.  SINCE THE
COURT BELOW APPLIED WHAT WE HAVE FOUND TO BE THE REQUISITE STANDARD IN
REVIEWING AN ORDER OF THE LABOR BOARD, THERE REMAINS ONLY THE
CONTENTION THAT IN ANY EVENT THERE WAS NO JUSTIFICATION FOR THE COURT
BELOW TO FIND THE BOARD'S ORDER TO BE UNSUPPORTED "BY SUBSTANTIAL
EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE."  THIS IS AN ISSUE THAT
DOES NOT CALL FOR EXTENDED DISCUSSION. 

THE CASE IS BEFORE US FOR THE SECOND TIME.  IT ARISES FROM THE
PETITION OF THE PITTSBURGH STEAMSHIP COMPANY TO REVIEW AN ORDER OF THE
BOARD, ENTERED AUGUST 13, 1946, DIRECTING IT TO REINSTATE A DISMISSED
EMPLOYEE AND TO TERMINATE WHAT WERE FOUND TO BE COERCIVE AND
DISCRIMINATORY LABOR PRACTICES.  69 N.L.R.B. 1395.  THE COURT OF
APPEALS ORIGINALLY DENIED ENFORCEMENT ON ITS FINDING THAT THE ORDER WAS
VITIATED BY AN UNDERLYING BIAS ON THE PART OF THE TRIAL EXAMINER.  167
F.2D 126.  ON CERTIORARI, WE REJECTED THE COURT OF APPEALS' CONCLUSION
THAT RESOLUTION OF EVERY CONTROVERTED FACT IN FAVOR OF THE BOARD
ESTABLISHED INVALIDATING BIAS ON THE EXAMINER'S PART.  WE ALSO FOUND
THAT THE RECORD DISCLOSED "EVIDENCE SUBSTANTIAL ENOUGH UNDER THE WAGNER
ACT."  337 U.S. 656, 661.  THAT CONCLUSION, IT IS PROPER TO SAY, WAS
REACHED ON THE ASSUMPTION THAT UNDER THE WAGNER ACT SUBSTANTIALITY WAS
SATISFIED IF THERE WAS EVIDENCE IN THE RECORD IN SUPPORT OF THE BOARD'S
CONCLUSIONS.  BUT WE REMANDED THE CASE TO THE COURT OF APPEALS TO
CONSIDER THE EFFECT ON ITS REVIEWING DUTY OF THE ADMINISTRATIVE
PROCEDURE AND THE TAFT-HARTLEY ACTS, BOTH HAVING COME INTO FORCE
BETWEEN THE BOARD'S ORDER AND THE COURT OF APPEALS DECISION.  THE COURT
OF APPEALS HAS NOW HELD, IN ACCORDANCE WITH OUR OWN VIEW, THAT THE
SCOPE OF REVIEW HAD BEEN EXTENDED "BEYOND THE REQUIREMENTS OF THE
WAGNER ACT," 180 F.2D 731, 736, AND THAT IN THE LIGHT OF THE NEW
REQUIREMENTS THE RECORD CONSIDERED AS A WHOLE DISENTITLED ENFORCEMENT
OF THE ORDER. 

THE GOVERNMENT CONCEDES, WE THINK RIGHTLY, THAT THE SCOPE OF THE
COURT'S REVIEWING POWER WAS GOVERNED BY THE LEGISLATION IN FORCE AT THE
TIME THAT POWER WAS EXERCISED EVEN THOUGH THE BOARD'S ORDER ANTEDATED
SUCH LEGISLATION.  SEE UNITED STATES V. HOOE, 3 CRANCH 73, 79, AND
COMPARE EX PARTE MCCARDLE, 7 WALL.  506. 

THE ACTS CLAIMED TO CONSTITUTE UNFAIR LABOR PRACTICES TOOK PLACE
DURING THE CAMPAIGN OF THE NATIONAL MARITIME UNION TO ORGANIZE THE
UNLICENSED EMPLOYEES OF THE RESPONDENT'S 73 VESSELS, PLYING ON THE
GREAT LAKES, DURING THE WINTER AND SPRING OF 1944.  THE BOARD ADOPTED
THE FINDINGS AND CONCLUSIONS OF ITS TRIAL EXAMINER AND HELD THAT THE
RESPONDENT HAD ENGAGED FOR SEVERAL MONTHS PRECEDING THE ELECTION IN A
DELIBERATE COURSE OF ANTIUNION CONDUCT, THEREBY INTERFERING WITH THE
RIGHTS OF EMPLOYEES GUARANTEED BY SEC. 7 OF THE WAGNER ACT. 

THIS CONCLUSION WAS BASED IN PART ON THE DISCHARGE OF A SEAMAN WHO
WAS ONE OF THE UNION ORGANIZERS.  THE BOARD DISBELIEVED SOME OF THE
TESTIMONY JUSTIFYING DISMISSAL ON THE GROUND OF INCOMPETENCE AND OTHER
EVIDENCE IT DEEMED SO INSUBSTANTIAL THAT IT DREW THE "PLAIN INFERENCE"
THAT THE DISCHARGE WAS "FOR REASONS ASIDE FROM THE MANNER IN WHICH HE
PERFORMED HIS WORK."  69 N.L.R.B. AT 1420.  THE BOARD ALSO RELIED ON
THE TESTIMONY OF UNION ORGANIZERS, PARTLY CORROBORATED, THAT OFFICERS
OF SOME OF THE RESPONDENT'S SHIPS HAD EXPRESSED HOSTILITY TO THE UNION,
IN CONVERSATION WITH MEMBERS OF CREWS OR IN THEIR PRESENCE.  EVIDENCE
OF RESPONDENT'S INTENT TO COERCE EMPLOYEES WAS ALSO FOUND IN TWO
LETTERS OF THE PRESIDENT OF THE STEAMSHIP COMPANY CIRCULATED AMONG THE
CREWS.  EACH ASSURED THAT UNION MEMBERSHIP WOULD NOT AFFECT AN
EMPLOYEE'S POSITION IN THE COMPANY.  BUT AN OFFICER OF THE UNION
TESTIFIED THAT SOME OF THE POLICIES ATTRIBUTED TO THE UNION IN THE
LETTERS WERE INACCURATE AND THE BOARD FOUND THAT THESE LETTERS,
ALTHOUGH "NOT UNLAWFUL PER SE  ...  CONSTITUTE AN INTEGRAL AND
INSEPARABLE PART OF THE RESPONDENT'S OTHERWISE ILLEGAL COURSE OF
CONDUCT AND WHEN SO VIEWED THEY ASSUME A COERCIVE CHARACTER WHICH IS
NOT PRIVILEGED BY THE RIGHT OF FREE SPEECH."  69 N.L.R.B. AT 1396* . 

*SINCE WE DO NOT DISTURB THE CONCLUSION OF THE COURT OF APPEALS THAT
THESE LETTERS ARE NOT SUBSTANTIAL EVIDENCE OF AN UNFAIR LABOR PRACTICE
UNDER THE WAGNER ACT, WE EXPRESS NO OPINION ON THE POSSIBLE EFFECT OF
SEC. 8(C) OF THE TAFT-HARTLEY ACT.  61 STAT. 142, 29 U.S.C. (SUPP. III)
SEC. 158(C).  THIS SECTION PROVIDES THAT EXPRESSION OF VIEWS, ARGUMENT
OR OPINION SHALL NOT BE EVIDENCE OF AN UNFAIR PRACTICE. 

SINCE THE COURT BELOW HAD ORIGINALLY FOUND THAT THE BOARD'S ORDER WAS
VITIATED BY THE EXAMINER'S BIAS, WE MUST TAKE CARE THAT THE COURT HAS
NOT BEEN INFLUENCED BY THAT FEELING, HOWEVER UNCONSCIOUSLY, ON
RECONSIDERING THE RECORD NOW LEGALLY FREED FROM SUCH IMPUTATION. 
CONSIDERATION OF THE OPINION BELOW IN LIGHT OF A CAREFUL READING OF THE
ENTIRE RECORD CONVINCES US THAT THE MOMENTUM OF ITS PRIOR DECISION DID
NOT ENTER INTO THE DECISION NOW UNDER REVIEW.  THE OPINION WAS WRITTEN
BY A DIFFERENT JUDGE, AND THE COURT WAS DIFFERENTLY CONSTITUTED.  THE
NEW MEMBER WAS A JUDGE WELL VERSED IN MATTERS OF INDUSTRIAL RELATIONS
AND NOT LIKELY TO BE UNSYMPATHETIC WITH SUCH FINDINGS AS WERE HERE MADE
BY THE BOARD.  THE COURT PAINSTAKINGLY REVIEWED THE RECORD AND
UNANIMOUSLY CONCLUDED THAT THE INFERENCES ON WHICH THE BOARD'S FINDINGS
WERE BASED WERE SO OVERBORNE BY EVIDENCE CALLING FOR CONTRARY
INFERENCES THAT THE FINDINGS OF THE BOARD COULD NOT, ON THE
CONSIDERATION OF THE WHOLE RECORD, BE DEEMED TO BE SUPPORTED BY
"SUBSTANTIAL" EVIDENCE. 

WERE WE CALLED UPON TO PASS ON THE BOARD'S CONCLUSIONS IN THE FIRST
INSTANCE OR TO MAKE AN INDEPENDENT REVIEW OF THE REVIEW BY THE COURT OF
APPEALS, WE MIGHT WELL SUPPORT THE BOARD'S CONCLUSION AND REJECT THAT
OF THE COURT BELOW.  BUT CONGRESS HAS CHARGED THE COURTS OF APPEALS AND
NOT THIS COURT WITH THE NORMAL AND PRIMARY RESPONSIBILITY FOR GRANTING
OR DENYING ENFORCEMENT OF LABOR BOARD ORDERS.  "THE JURISDICTION OF THE
COURT (OF APPEALS) SHALL BE EXCLUSIVE AND ITS JUDGMENT AND DECREE SHALL
BE FINAL, EXCEPT THAT THE SAME SHALL BE SUBJECT TO REVIEW  ...  BY THE
SUPREME COURT OF THE UNITED STATES UPON WRIT OF CERTIORARI  ...  "
TAFT-HARTLEY ACT, SEC. 10(E), 61 STAT. 148, 29 U.S.C. (SUPP. III) SEC.
160(E).  CERTIORARI IS GRANTED ONLY "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."  LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, 261
U.S. 387, 393; REVISED RULES OF THE SUPREME COURT OF THE UNITED STATES,
RULE 38(5).  THE SAME CONSIDERATIONS THAT SHOULD LEAD US TO LEAVE
UNDISTURBED, BY DENYING CERTIORARI, DECISIONS OF COURTS OF APPEALS
INVOLVING SOLELY A FAIR ASSESSMENT OF A RECORD ON THE ISSUE OF
UNSUBSTANTIALITY, OUGHT TO LEAD US TO DO NO MORE THAN DECIDE THAT THERE
WAS SUCH A FAIR ASSESSMENT WHEN THE CASE IS HERE, AS THIS IS, ON OTHER
LEGAL ISSUES. 

THIS IS NOT THE PLACE TO REVIEW A CONFLICT OF EVIDENCE NOR TO REVERSE
A COURT OF APPEALS BECAUSE WERE WE IN ITS PLACE WE WOULD FIND THE
RECORD TILTING ONE WAY RATHER THAN THE OTHER, THOUGH FAIR-MINDED JUDGES
COULD FIND IT TILTING EITHER WAY.  IT IS NOT FOR US TO INVITE REVIEW BY
THIS COURT OF DECISIONS TURNING SOLELY ON EVALUATION OF TESTIMONY WHERE
ON A CONSCIENTIOUS CONSIDERATION OF THE ENTIRE RECORD A COURT OF
APPEALS UNDER THE NEW DISPENSATION FINDS THE BOARD'S ORDER
UNSUBSTANTIATED.  IN SUCH SITUATIONS WE SHOULD "ADHERE TO THE USUAL
RULE OF NONINTERFERENCE WHERE CONCLUSIONS OF CIRCUIT COURTS OF APPEALS
DEPEND ON APPRECIATION OF CIRCUMSTANCES WHICH ADMIT OF DIFFERENT
INTERPRETATIONS."  FEDERAL TRADE COMM'N V. AMERICAN TOBACCO CO., 274
U.S. 543, 544.  AFFIRMED. 
..END :



O'LEARY V. BROWN-PACIFIC-MAXON, 340 U.S. 504 


NO. 267.  ARGUED DECEMBER 7, 1950.  - DECIDED FEBRUARY 26, 1951.  - 182
F.2D 772, REVERSED. 


A CONTRACTOR, ENGAGED IN CONSTRUCTION WORK FOR THE NAVY ON THE ISLAND
OF GUAM, MAINTAINED FOR ITS EMPLOYEES A RECREATION CENTER ADJOINING A
CHANNEL SO DANGEROUS THAT SWIMMING WAS FORBIDDEN AND SIGNS TO THAT
EFFECT WERE ERECTED.  AFTER SPENDING THE AFTERNOON AT THE CENTER, AN
EMPLOYEE WAS DROWNED WHILE ATTEMPTING TO SWIM THE CHANNEL IN ORDER TO
RESCUE TWO MEN IN DISTRESS.  UNDER THE LONG-SHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT, EXTENDED TO THIS EMPLOYEE BY THE DEFENSE
BASES ACT, THE DEPUTY COMMISSIONER FOUND AS A "FACT" THAT THE
EMPLOYEE'S DEATH AROSE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT AND
AWARDED A DEATH BENEFIT TO HIS MOTHER.  HELD:  THE AWARD IS SUSTAINED. 
PP. 505-509. 

1.  SUCH A RESCUE ATTEMPT IS NOT NECESSARILY EXCLUDED FROM THE
COVERAGE OF THE ACT.  PP. 506-507. 

2.  UNDER THE ADMINISTRATIVE PROCEDURE ACT, THE DEPUTY COMMISSIONER'S
FINDINGS SHOULD BE ACCEPTED UNLESS THEY ARE UNSUPPORTED BY SUBSTANTIAL
EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE.  UNIVERSAL CAMERA CORP.
V. LABOR BOARD, ANTE, P. 474.  PP. 507-508. 

3.  THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE DEPUTY COMMISSIONER'S
FINDING THAT THE EMPLOYEE ACTED REASONABLY IN ATTEMPTING THE RESCUE AND
THAT HIS DEATH MAY FAIRLY BE ATTRIBUTED TO THE RISKS OF HIS
EMPLOYMENT.  PP. 508-509. 

O'LEARY, DEPUTY COMMISSIONER, FOURTEENTH COMPENSATION DISTRICT, V.
BROWN-PACIFIC-MAXON, INC. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

THE DISTRICT COURT DECLINED TO SET ASIDE AN AWARD UNDER THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT OF MARCH 4, 1927,
44 STAT. 1424, AS AMENDED, 33 U.S.C. SECS. 901 ET SEQ. THE COURT OF
APPEALS REVERSED.  182 F.2D 772.  THIS COURT GRANTED CERTIORARI.  340
U.S. 849.  REVERSED, P. 509. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CALLED UPON TO REVIEW AN AWARD OF COMPENSATION
UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT.  ACT OF
MARCH 4, 1927, 44 STAT. 1424, AS AMENDED, 33 U.S.C. SEC. 901 ET SEQ.
THE AWARD WAS MADE ON A CLAIM ARISING FROM THE ACCIDENTAL DEATH OF AN
EMPLOYEE OF BROWN-PACIFIC-MAXON, INC., A GOVERNMENT CONTRACTOR
OPERATING ON THE ISLAND OF GUAM.  BROWN-PACIFIC MAINTAINED FOR ITS
EMPLOYEES A RECREATION CENTER NEAR THE SHORELINE, ALONG WHICH RAN A
CHANNEL SO DANGEROUS FOR SWIMMERS THAT ITS USE WAS FORBIDDEN AND SIGNS
TO THAT EFFECT ERECTED.  JOHN VALAK, THE EMPLOYEE, SPENT THE AFTERNOON
AT THE CENTER, AND WAS WAITING FOR HIS EMPLOYER'S BUS TO TAKE HIM FROM
THE AREA WHEN HE SAW OR HEARD TWO MEN, STANDING ON THE REEFS BEYOND THE
CHANNEL, SIGNALING FOR HELP.  FOLLOWED BY NEARLY TWENTY OTHERS, HE
PLUNGED IN TO EFFECT A RESCUE.  IN ATTEMPTING TO SWIM THE CHANNEL TO
REACH THE TWO MEN HE WAS DROWNED. 

A CLAIM WAS FILED BY HIS DEPENDENT MOTHER, BASED ON THE
LONGSHOREMEN'S ACT AND ON AN ACT OF AUGUST 16, 1941, EXTENDING THE
COMPENSATION PROVISIONS TO CERTAIN EMPLOYMENT IN OVERSEAS POSSESSIONS. 
55 STAT. 622, 56 STAT. 1035, AS AMENDED, 42 U.S.C. SEC. 1651.  IN DUE
COURSE OF THE STATUTORY PROCEDURE, THE DEPUTY COMMISSIONER FOUND AS A
"FACT" THAT "AT THE TIME OF HIS DROWNING AND DEATH THE DECEASED WAS
USING THE RECREATIONAL FACILITIES SPONSORED AND MADE AVAILABLE BY THE
EMPLOYER FOR THE USE OF ITS EMPLOYEES AND SUCH PARTICIPATION BY THE
DECEASED WAS AN INCIDENT OF HIS EMPLOYMENT, AND THAT HIS DROWNING AND
DEATH AROSE OUT OF AND IN THE COURSE OF SAID EMPLOYMENT ...  "
ACCORDINGLY, HE AWARDED A DEATH BENEFIT OF $9.38 PER WEEK.  BROWN
PACIFIC AND ITS INSURANCE CARRIER THEREUPON PETITIONED THE DISTRICT
COURT UNDER SEC. 21 OF THE ACT TO SET ASIDE THE AWARD.  THAT COURT
DENIED THE PETITION ON THE GROUND THAT "THERE IS SUBSTANTIAL EVIDENCE
... TO SUSTAIN THE COMPENSATION ORDER."  ON APPEAL, THE COURT OF
APPEALS FOR THE NINTH CIRCUIT REVERSED.  IT CONCLUDED THAT "THE LETHAL
CURRENTS WERE NOT A PART OF THE RECREATIONAL FACILITIES SUPPLIED BY THE
EMPLOYER AND THE SWIMMING IN THEM FOR THE RESCUE OF THE UNKNOWN MAN WAS
NOT RECREATION.  IT WAS AN ACT ENTIRELY DISCONNECTED FROM ANY USE FOR
WHICH THE RECREATIONAL CAMP WAS PROVIDED AND NOT IN THE COURSE OF
VALAK'S EMPLOYMENT."  182 F.2D 772, 773.  WE GRANTED CERTIORARI, 340
U.S. 849, BECAUSE THE CASE BROUGHT INTO QUESTION JUDICIAL REVIEW OF
AWARDS UNDER THE LONGSHOREMEN'S ACT IN LIGHT OF THE ADMINISTRATIVE
PROCEDURE ACT. 

THE LONGSHOREMEN'S AND HARBOR WORKERS' ACT AUTHORIZES PAYMENT OF
COMPENSATION FOR "ACCIDENTAL INJURY OR DEATH ARISING OUT OF AND IN THE
COURSE OF EMPLOYMENT."  SEC. 2(2), 44 STAT. 1425, 33 U.S.C. SEC.
902(2).  AS WE READ ITS OPINION THE COURT OF APPEALS ENTERTAINED THE
VIEW THAT THIS STANDARD PRECLUDED AN AWARD FOR INJURIES INCURRED IN AN
ATTEMPT TO RESCUE PERSONS NOT KNOWN TO BE IN THE EMPLOYER'S SERVICE,
UNDERTAKEN IN FORBIDDEN WATERS OUTSIDE THE EMPLOYER'S PREMISES.  WE
THINK THIS IS TOO RESTRICTED AN INTERPRETATION OF THE ACT.  WORKMEN'S
COMPENSATION IS NOT CONFINED BY COMMON-LAW CONCEPTIONS OF SCOPE OF
EMPLOYMENT.  CARDILLO V. LIBERTY MUTUAL INS. CO., 330 U.S. 469, 481;
MATTER OF WATERS V. TAYLOR CO., 218 N.Y. 248, 251, 112 N.E. 727, 728. 
THE TEST OF RECOVERY IS NOT A CAUSAL RELATION BETWEEN THE NATURE OF
EMPLOYMENT OF THE INJURED PERSON AND THE ACCIDENT.  THOM V. SINCLAIR,
(1917) A.C. 127, 142.  NOR IS IT NECESSARY THAT THE EMPLOYEE BE ENGAGED
AT THE TIME OF THE UNJURY IN ACTIVITY OF BENEFIT TO HIS EMPLOYER.  ALL
THAT IS REQUIRED IS THAT THE "OBLIGATIONS OR CONDITIONS" OF EMPLOYMENT
CREATE THE "ZONE OF SPECIAL DANGER" OUT OF WHICH THE INJURY AROSE. 
IBID.  A REASONABLE RESCUE ATTEMPT, LIKE PURSUIT IN AID OF AN OFFICER
MAKING AN ARREST, MAY BE "ONE OF THE RISKS OF THE EMPLOYMENT, AN
INCIDENT OF THE SERVICE, FORESEEABLE, IF NOT FORESEEN, AND SO COVERED
BY THE STATUTE."  MATTER OF BABINGTON V. YELLOW TAXI CORP., 250 N.Y.
14, 17, 164 N.E. 726, 727; PUTTKAMMER V. INDUSTRIAL COMM'N, 371 ILL.
497, 21 N.E.2D 575.  THIS IS NOT TO SAY THAT THERE ARE NOT CASES "WHERE
AN EMPLOYEE, EVEN WITH THE LAUDABLE PURPOSE OF HELPING ANOTHER, MIGHT
GO SO FAR FROM HIS EMPLOYMENT AND BECOME SO THOROUGHLY DISCONNECTED
FROM THE SERVICE OF HIS EMPLOYER THAT IT WOULD BE ENTIRELY UNREASONABLE
TO SAY THAT INJURIES SUFFERED BY HIM AROSE OUT OF AND IN THE COURSE OF
HIS EMPLOYMENT."  MATTER OF WATERS V. TAYLOR CO., 218 N.Y. AT 252, 112
N.E. AT 728.  WE HOLD ONLY THAT RESCUE ATTEMPTS SUCH AS THAT BEFORE US
ARE NOT NECESSARILY EXCLUDED FROM THE COVERAGE OF THE ACT AS THE KIND
OF CONDUCT THAT EMPLOYEES ENGAGE IN AS FROLICS OF THEIR OWN. 

THE DEPUTY COMMISSIONER TREATED THE QUESTION WHETHER THE PARTICULAR
RESCUE ATTEMPT DESCRIBED BY THE EVIDENCE WAS ONE OF THE CLASS COVERED
BY THE ACT AS A QUESTION OF "FACT."  DOING SO ONLY SERVES TO ILLUSTRATE
ONCE MORE THE VARIETY OF ASCERTAINMENTS COVERED BY THE BLANKET TERM
"FACT."  HERE OF COURSE IT DOES NOT CONNOTE A SIMPLE, EXTERNAL,
PHYSICAL EVENT AS TO WHICH THERE IS CONFLICTING TESTIMONY.  THE
CONCLUSION CONCERNS A COMBINATION OF HAPPENINGS AND THE INFERENCES
DRAWN FROM THEM.  IN PART AT LEAST, THE INFERENCES PRESUPPOSE
APPLICABLE STANDARDS FOR ASSESSING THE SIMPLE, EXTERNAL FACTS.  YET THE
STANDARDS ARE NOT SO SEVERABLE FROM THE EXPERIENCE OF INDUSTRY NOR OF
SUCH A NATURE AS TO BE PECULIARLY APPROPRIATE FOR INDEPENDENT JUDICIAL
ASCERTAINMENT AS "QUESTIONS OF LAW." 

BOTH SIDES CONCEDED THAT THE SCOPE OF JUDICIAL REVIEW OF SUCH
FINDINGS OF FACT IS GOVERNED BY THE ADMINISTRATIVE PROCEDURE ACT.  ACT
OF JUNE 11, 1946, 60 STAT. 237, 5 U.S.C. SEC. 1001 ET SEQ. THE
STANDARD, THEREFORE, IS THAT DISCUSSED IN UNIVERSAL CAMERA CORP. V.
LABOR BOARD, ANTE, P. 474.  IT IS SUFFICIENTLY DESCRIBED BY SAYING THAT
THE FINDINGS ARE TO BE ACCEPTED UNLESS THEY ARE UNSUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE.  THE DISTRICT
COURT RECOGNIZED THIS STANDARD. 

WHEN THIS COURT DETERMINES THAT A COURT OF APPEALS HAS APPLIED AN
INCORRECT PRINCIPLE OF LAW, WISE JUDICIAL ADMINISTRATION NORMALLY
COUNSELS REMAND OF THE CAUSE TO THE COURT OF APPEALS WITH INSTRUCTIONS
TO RECONSIDER THE RECORD.  COMPARE UNIVERSAL CAMERA CORP. V. LABOR
BOARD, SUPRA.  IN THIS INSTANCE, HOWEVER, WE HAVE A SLIM RECORD AND THE
RELEVANT STANDARD IS NOT DIFFICULT TO APPLY; AND WE THINK THE
LITIGATION HAD BETTER TERMINATE NOW.  ACCORDINGLY WE HAVE OURSELVES
EXAMINED THE RECORD TO ASSESS THE SUFFICIENCY OF THE EVIDENCE. 

WE ARE SATISFIED THAT THE RECORD SUPPORTS THE DEPUTY COMMISSIONER'S
FINDING.  THE PERTINENT EVIDENCE WAS PRESENTED BY THE WRITTEN
STATEMENTS OF FOUR PERSONS AND THE TESTIMONY OF ONE WITNESS.  IT IS, ON
THE WHOLE, CONSISTENT AND CREDIBLE.  FROM IT THE DEPUTY COMMISSIONER
COULD RATIONALLY INFER THAT VALAK ACTED REASONABLY IN ATTEMPTING THE
RESCUE, AND THAT HIS DEATH MAY FAIRLY BE ATTRIBUTABLE TO THE RISKS OF
THE EMPLOYMENT.  WE DO NOT MEAN THAT THE EVIDENCE COMPELLED THIS
INFERENCE; WE DO NOT SUGGEST THAT HAD THE DEPUTY COMMISSIONER DECIDED
AGAINST THE CLAIMANT, A COURT WOULD HAVE BEEN JUSTIFIED IN DISTURBING
HIS CONCLUSION.  WE HOLD ONLY THAT ON THIS RECORD THE DECISION OF THE
DISTRICT COURT THAT THE AWARD SHOULD NOT BE SET ASIDE SHOULD BE
SUSTAINED.  REVERSED. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE JACKSON AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

LIABILITY ACCRUES IN THE INSTANT CASE ONLY IF THE DEATH AROSE OUT OF
AND IN THE COURSE OF THE EMPLOYMENT.  THIS IS A STATUTORY PROVISION
COMMON TO ALL WORKMEN'S COMPENSATION ACTS.  THERE MUST BE MORE THAN
DEATH AND THE RELATIONSHIP OF EMPLOYEE AND EMPLOYER.  THERE MUST BE
SOME CONNECTION BETWEEN THE DEATH AND THE EMPLOYMENT.  NOT IN ANY
COMMON-LAW SENSE OF CAUSAL CONNECTION BUT IN THE COMMON-SENSE,
EVERYDAY, REALISTIC VIEW.  THE DEPUTY COMMISSIONER KNEW THAT, SO HE
FOUND AS A FACT THAT "AT THE TIME OF HIS DROWNING AND DEATH THE
DECEASED WAS USING THE RECREATIONAL FACILITIES SPONSORED AND MADE
AVAILABLE BY THE EMPLOYER FOR THE USE OF ITS EMPLOYEES AND SUCH
PARTICIPATION BY THE DECEASED WAS AN INCIDENT OF HIS EMPLOYMENT  ...  "
THIS FINDING IS FALSE AND HAS NO SCINTILLA OF EVIDENCE OR INFERENCE TO
SUPPORT IT. 

I AM UNABLE TO UNDERSTAND HOW THIS COURT CAN SAY THIS IS A FACT BASED
UPON EVIDENCE.  IT IS UNDISPUTED UPON THIS RECORD THAT THE DECEASED, AT
THE TIME HE MET HIS DEATH, WAS OUTSIDE THE RECREATIONAL AREA IN THE
PERFORMANCE OF A VOLUNTARY ACT OF ATTEMPTED RESCUE OF SOMEONE UNKNOWN
TO THE RECORD.  THERE CAN BE NO INFERENCE OF LIABILITY HERE UNLESS
LIABILITY FOLLOWS FROM THE MERE RELATIONSHIP OF EMPLOYER AND EMPLOYEE. 
THE ATTEMPT TO RESCUE WAS AN ISOLATED, VOLUNTARY ACT OF BRAVERY OF THE
DECEASED IN NO MANNER ARISING OUT OF OR IN THE COURSE OF HIS
EMPLOYMENT.  THE ONLY RELATION HIS EMPLOYMENT HAD WITH THE ATTEMPTED
RESCUE AND THE FOLLOWING DEATH WAS THAT HIS EMPLOYMENT PUT HIM ON THE
ISLAND OF GUAM. 

I SUPPOSE THE WAY TO AVOID WHAT WE SAID TODAY IN UNIVERSAL CAMERA
CORP. V. LABOR BOARD, ANTE, P. 474, IS TO FIND FACTS WHERE THERE ARE NO
FACTS, ON THE WHOLE RECORD OR ANY PIECE OF IT.  IT SOUNDS A BIT HOLLOW
TO ME FOR THE COURT, AS IT DOES, TO QUOTE FROM THE NEW YORK CASE OF
MATTER OF WATERS V. TAYLOR CO., 218 N.Y. 248, 252, 112 N.E. 727, 728,
"WHERE AN EMPLOYEE, EVEN WITH THE LAUDABLE PURPOSE OF HELPING ANOTHER,
MIGHT GO SO FAR FROM HIS EMPLOYMENT AND BECOME SO THOROUGHLY
DISCONNECTED FROM THE SERVICE OF HIS EMPLOYER THAT IT WOULD BE ENTIRELY
UNREASONABLE TO SAY THAT INJURIES SUFFERED BY HIM AROSE OUT OF AND IN
THE COURSE OF HIS EMPLOYMENT."  THIS WOULD SEEM TO INDICATE THAT WE ARE
LEAVING SOME PLACE FOR VOLUNTARY ACTS OF THE EMPLOYEES OUTSIDE THE
COURSE OF THEIR EMPLOYMENT FOR WHICH THE EMPLOYER MAY NOT BE LIABLE. 
THERE SURELY ARE SUCH AREAS, BUT THIS CASE DOES NOT RECOGNIZE THEM. 
THE EMPLOYER IS LIABLE IN THIS CASE BECAUSE HE IS AN EMPLOYER. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :






















CANTON R. CO. V. ROGAN, 340 U.S. 511 


NO. 96.  ARGUED NOVEMBER 28-29, 1950.  - DECIDED FEBRUARY 26, 1951.  -
MD. - , 73 A.2D 12, AFFIRMED. 


MARYLAND IMPOSES ON RAILROADS A FRANCHISE TAX, MEASURED BY GROSS
RECEIPTS, APPORTIONED TO THE LENGTH OF THEIR LINES WITHIN THE STATE. 
APPELLANT RAILROAD OPERATES, WHOLLY IN BALTIMORE, A MARINE TERMINAL AND
RAIL LINES CONNECTING THE TERMINAL WITH TRUNK-LINE RAILROADS.  ITS
OPERATING REVENUES ARE DERIVED FROM SWITCHING FREIGHT CARS; STORAGE
PENDING FORWARDING; WHARFAGE; WEIGHING LOADED FREIGHT CARS; AND RENTALS
PAID BY A STEVEDORING COMPANY FOR THE USE OF A CRANE.  HELD: 

1.  THE IMPORT-EXPORT CLAUSE, ART. I, SEC. 10, CL. 2, OF THE FEDERAL
CONSTITUTION IS NOT VIOLATED BY THE INCLUSION, IN THE GROSS RECEIPTS BY
WHICH THE TAX IS MEASURED, OF REVENUES DERIVED BY APPELLANT FROM ITS
HANDLING OF GOODS MOVING IN FOREIGN TRADE.  PP. 512-515. 

(A)  THE TAX IN THIS CASE IS NOT ON THE GOODS BUT ON THE HANDLING OF
THEM AT THE PORT.  PP. 513-515. 

(B)  SINCE APPELLANT MERELY RENTS A CRANE FOR LOADING AND UNLOADING
AND DOES NOT ITSELF DO THE STEVEDORING, IT IS UNNECESSARY TO DECIDE
WHETHER LOADING FOR EXPORT AND UNLOADING FOR IMPORT ARE IMMUNE FROM TAX
UNDER THE IMPORT-EXPORT CLAUSE.  P. 515. 

(C)  ANY ACTIVITY MORE REMOTE THAN LOADING FOR EXPORT AND UNLOADING
FOR IMPORT DOES NOT COMMENCE THE MOVEMENT OF THE COMMODITIES ABROAD NOR
END THEIR ARRIVAL, AND THEREFORE IS NOT A PART OF THE EXPORT OR IMPORT
PROCESS.  P. 515. 

2.  THE TAX IS NOT INVALID UNDER THE COMMERCE CLAUSE, SINCE THE STATE
MAY CONSTITUTIONALLY IMPOSE A NONDISCRIMINATORY TAX ON GROSS RECEIPTS
FROM INTERSTATE TRANSPORTATION, APPORTIONED ACCORDING TO MILEAGE WITHIN
THE STATE.  GREYHOUND LINES V. MEALEY, 334 U.S. 653.  PP. 515-516. 

CANTON RAILROAD CO. V. ROGAN ET AL., CONSTITUTING THE STATE TAX
COMMISSION OF MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

A STATE FRANCHISE TAX ASSESSED AGAINST APPELLANT WAS SUSTAINED BY THE
STATE SUPREME COURT AGAINST A CHALLENGE THAT IT WAS INVALID UNDER THE
FEDERAL CONSTITUTION.   - MD. - , 73 A.2D 12.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 516. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE STATE OF MARYLAND IMPOSES ON STEAM RAILROAD COMPANIES A FRANCHISE
TAX, MEASURED BY GROSS RECEIPTS, APPORTIONED TO THE LENGTH OF THEIR
LINES WITHIN THE STATE.  FN1  APPELLANT CANTON RAILROAD COMPANY, A
MARYLAND CORPORATION, CHALLENGES THE VALIDITY OF THE TAX UNDER THE
IMPORT-EXPORT CLAUSE OF THE CONSTITUTION, ART. I, SEC. 10, CL. 2,
INSOFAR AS THE GROSS INCOME BY WHICH THE TAX IS MEASURED INCLUDES
REVENUES DERIVED FROM THE HANDLING OF GOODS MOVING IN FOREIGN TRADE. 

CANTON IS A COMMON CARRIER OF FREIGHT OPERATING ENTIRELY WITHIN THE
CITY OF BALTIMORE, MARYLAND.  IT MAINTAINS A MARINE TERMINAL IN THE
PORT OF BALTIMORE AND RAILROAD LINES CONNECTING THIS TERMINAL WITH THE
LINES OF MAJOR TRUNK-LINE RAILROADS.  ITS OPERATING REVENUES ARE
DERIVED FROM SERVICES WHICH FALL INTO THE FOLLOWING CLASSIFICATIONS: 

SWITCHING FREIGHT CARS FROM THE PIERS TO THE LINES OF CONNECTING
RAILROADS. 

STORAGE PENDING FORWARDING, FOR WHICH A CHARGE IS MADE FOR EACH DAY
BEYOND A FREE PERIOD. 

WHARFAGE, OR THE PRIVILEGE OF USING CANTON'S PIERS FOR THE TRANSFER
OF CARGO TO LIGHTERS OR TO TRUCKS. 

WEIGHING OF LOADED FREIGHT CARS. 

FURNISHING A CRANE FOR USE IN UNLOADING VESSELS.  THIS CRANE IS
OPERATED BY A STEVEDORING COMPANY, WHICH PAYS CANTON A SET CHARGE PER
TON FOR THE "CRANE PRIVILEGE." 

A SUBSTANTIAL PROPORTION OF THE FREIGHT MOVED TO AND FROM THE PORT
CONSISTS OF EXPORTS FROM AND IMPORTS INTO THE UNITED STATES.  IN ITS
REPORT TO THE STATE TAX COMMISSION FOR 1946, CANTON SHOWED GROSS
RECEIPTS FROM ITS RAILROAD BUSINESS IN MARYLAND OF $1,588,744.48, OF
WHICH IT CLAIMED $705,957.21 TO BE EXEMPT FROM TAXATION BECAUSE DERIVED
FROM OPERATIONS IN FOREIGN COMMERCE.  AFTER A HEARING, THE COMMISSION
REJECTED CANTON'S CONTENTION THAT A PART OF ITS GROSS RECEIPTS WAS
CONSTITUTIONALLY EXEMPT FROM THE TAX, ASSESSED ITS GROSS RECEIPTS AT
THE HIGHER FIGURE, AND IMPOSED A TAX OF $39,092.34.  THE COMMISSION'S
ORDER WAS AFFIRMED BOTH BY THE BALTIMORE CIRCUIT COURT AND BY THE COURT
OF APPEALS OF MARYLAND, TWO JUDGES DISSENTING.   - MD. - , 73 A.2D 12. 

THE CASE IS HERE ON APPEAL. 

THE CONSTITUTION COMMANDS IN ART. I, SEC. 10, CL. 2 THAT "NO STATE
SHALL, WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY IMPOSTS OR DUTIES
ON IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR
EXECUTING IT'S INSPECTION LAWS  ...  "  THE MARYLAND COURT HELD THAT
THE TAX DOES NOT VIOLATE THIS PROVISION OF THE CONSTITUTION; AND WE
AGREE. 

IF THIS WERE A TAX ON THE ARTICLES OF IMPORT AND EXPORT, WE WOULD
HAVE THE KIND OF PROBLEM PRESENTED IN SPALDING & BROS. V. EDWARDS, 262
U.S. 66; RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69; HOOVEN &
ALLISON CO. V. EVATT, 324 U.S. 652; AND JOY OIL CO. V. STATE TAX
COMM'N, 337 U.S. 286.  BUT THE PRESENT TAX IS NOT ON THE ARTICLES OF
IMPORT AND EXPORT; NOR IS IT THE EQUIVALENT OF A DIRECT TAX ON THE
ARTICLES, AS WAS HELD TO BE TRUE OF STAMP TAXES ON FOREIGN BILLS OF
LADING (FAIRBANK V. UNITED STATES, 181 U.S. 283), STAMP TAXES ON
CHARTER PARTIES IN FOREIGN COMMERCE (UNITED STATES V. HVOSLEF, 237 U.S.
1); AND STAMP TAXES ON POLICIES INSURING EXPORTS AGAINST MARITIME
RISKS.  THAMES & MERSEY INS. CO. V. UNITED STATES, 237 U.S. 19.  IT IS
TRUE THAT THE LATTER CASES INDICATE THAT THE PROHIBITION OF THE IMPORT
EXPORT CLAUSE AGAINST TAXES ON IMPORTS AND EXPORTS INVOLVES MORE THAN
AN EXEMPTION FROM TAXES LAID UPON THE GOODS THEMSELVES.  MOREOVER, CREW
LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292, FOLLOWING THE REASONING OF
BROWN V. MARYLAND, 12 WHEAT.  419, 444-445, GAVE LIKE IMMUNITY TO THE
BUSINESS OF SELLING GOODS IN FOREIGN COMMERCE WHEN GROSS RECEIPTS WERE
TAXED.  CF. ANGLO-CHILEAN CORP. V. ALABAMA, 288 U.S. 218.  THOUGH
APPELLANT IS NOT ENGAGED IN THE IMPORT-EXPORT BUSINESS, IT CLAIMS THAT
ITS HANDLING OF GOODS, WHICH ARE DESTINED FOR EXPORT OR WHICH ARRIVE AS
IMPORTS, IS PART OF THE PROCESS OF EXPORTATION AND IMPORTATION.  IN
SUPPORT OF THE ARGUMENT IT REFERS TO LANGUAGE IN SPALDING & BROS. V.
EDWARDS, SUPRA, AND RICHFIELD OIL CORP. V. STATE BOARD, SUPRA, RELATIVE
TO WHEN THE EXPORT PROCESS STARTS; AND IT ARGUES THAT, IF THE BASEBALLS
AND THE BASEBALL BATS IN SPALDING  FN2  AND THE OIL IN RICHFIELD WERE
IMMUNE FROM THE SALES TAXES BECAUSE THOSE COMMODITIES HAD BEEN
COMMITTED TO EXPORTATION, THE SAME IMMUNITY SHOULD BE ALLOWED HERE
SINCE THE GOODS HANDLED BY APPELLANT WERE SIMILARLY COMMITTED.  THE
DIFFERENCE IS THAT IN THE PRESENT CASE THE TAX IS NOT ON THE GOODS BUT
ON THE HANDLING OF THEM AT THE PORT.  AN ARTICLE MAY BE AN EXPORT AND
IMMUNE FROM A TAX LONG BEFORE OR LONG AFTER IT REACHES THE PORT.  BUT
WHEN THE TAX IS ON ACTIVITIES CONNECTED WITH THE EXPORT OR IMPORT THE
RANGE OF IMMUNITY CANNOT BE SO WIDE. 

TO EXPORT MEANS TO CARRY OR SEND ABROAD; TO IMPORT MEANS TO BRING
INTO THE COUNTRY.  THOSE ACTS BEGIN AND END AT WATER'S EDGE.  THE
BROADER DEFINITION WHICH APPELLANT TENDERS DISTORTS THE ORDINARY
MEANING OF THE TERMS.  IT WOULD LEAD BACK TO EVERY FOREST, MINE, AND
FACTORY IN THE LAND AND CREATE A ZONE OF TAX IMMUNITY NEVER BEFORE
IMAGINED.  FOR IF THE HANDLING OF THE GOODS AT THE PORT WERE PART OF
THE EXPORT PROCESS, SO WOULD HAULING THEM TO OR FROM DISTANT POINTS OR
PERHAPS MINING THEM OR MANUFACTURING THEM.  THE PHASE OF THE PROCESS
WOULD MAKE NO DIFFERENCE SO LONG AS THE GOODS WERE IN FACT COMMITTED TO
EXPORT OR HAD ARRIVED AS IMPORTS. 

APPELLANT CLAIMS THAT LOADING AND UNLOADING ARE A PART OF ITS
ACTIVITIES.  BUT CLOSE EXAMINATION OF THE RECORD INDICATES THAT IT
MERELY RENTS A CRANE FOR LOADING AND UNLOADING AND DOES NOT ITSELF DO
THE STEVEDORING WORK.  HENCE WE NEED NOT DECIDE WHETHER LOADING FOR
EXPORT AND UNLOADING FOR IMPORT ARE IMMUNE FROM TAX BY REASON OF THE
IMPORT-EXPORT CLAUSE.  CF. JOSEPH V. CARTER & WEEKES CO., 330 U.S.
422. 

WE DO CONCLUDE, HOWEVER, THAT ANY ACTIVITY MORE REMOTE THAN THAT DOES
NOT COMMENCE THE MOVEMENT OF THE COMMODITIES ABROAD NOR END THEIR
ARRIVAL AND THEREFORE IS NOT A PART OF THE EXPORT OR IMPORT PROCESS. 

THE OBJECTION TO MARYLAND'S TAX ON THE GROUND THAT INTERSTATE
COMMERCE IS INVOLVED IS NOT WELL TAKEN.  IT IS SETTLED THAT A
NONDISCRIMINATORY GROSS RECEIPTS TAX ON AN INTERSTATE ENTERPRISE MAY BE
SUSTAINED IF FAIRLY APPORTIONED TO THE BUSINESS DONE WITHIN THE TAXING
STATE (SEE WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 255)
AND NOT REACHING ANY ACTIVITIES CARRIED ON BEYOND THE BORDERS OF THE
STATE.  WHERE TRANSPORTATION IS CONCERNED, AN APPORTIONMENT ACCORDING
TO THE MILEAGE WITHIN THE STATE FN3  IS AN APPROVED METHOD.  GREYHOUND
LINES V. MEALEY, 334 U.S. 653, 663.  AFFIRMED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

BY MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS, RESERVING
JUDGMENT $*. 

$*  (THIS OPINION APPLIES ALSO TO NO. 205, WESTERN MARYLAND R. CO. V.
ROGAN, POST, P. 520.) 

IN THIS CASE, I RESERVE JUDGMENT IN THE BELIEF THAT TODAY'S DECISION
OF THE COURT MAY BE FOUND, UPON CONSIDERATION OF MATTERS NOT BRIEFED OR
ARGUED, TO BE UNTENABLE. 

ONE OF THE FUNDAMENTAL FEDERAL POLICIES, ESTABLISHED BY THE
CONSTITUTION ITSELF, IS THAT "NO PREFERENCE SHALL BE GIVEN BY ANY
REGULATION OF COMMERCE OR REVENUE TO THE PORTS OF ONE STATE OVER THOSE
OF ANOTHER  ...  "  ART. I, SEC. 9, CL. 6.  THIS POLICY IS FURTHER
IMPLEMENTED BY A REQUIREMENT THAT FEDERAL DUTIES, IMPOSTS AND EXCISES
BE UNIFORM (ART. I, SEC. 8, CL. 1), AND BY A PROHIBITION OF ANY FEDERAL
TAX OR DUTY ON ARTICLES EXPORTED FROM A STATE (ART. I, SEC. 9, CL. 5). 
BUT THIS POLICY OF EQUALITY OF ACCESS TO THE HIGH SEAS CAN ALSO BE
UPSET BY THE STATES.  HENCE THE CONSTITUTION FORBIDS ANY STATE, WITHOUT
THE CONSENT OF CONGRESS, TO LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR
EXPORTS, EXCEPT TO PAY THE COST OF INSPECTION LAWS.  ART. I, SEC. 10,
CL. 2. 

THIS DETAILED CONSTITUTIONAL CONCERN ABOUT EXPORTS AND IMPORTS IS A
MANIFESTATION OF A REALISTIC RECOGNITION THAT A STATE OR CITY WITH A
SAFE HARBOR SITS AT A GATEWAY WITH NOT ONLY AN INEVITABLE NATURAL
ADVANTAGE, BUT ALSO A STRATEGIC ONE WHICH MAY BE EXPLOITED IF NOT
RESTRAINED.  POLITICAL INFLUENCE OF WEALTHY AND POPULOUS PORT AREAS WAS
FEARED IN THE MAKING OF FEDERAL LAW, HENCE THE RESTRICTIONS ON
CONGRESS.  THE DISPOSITION OF CITIES AND STATES TO EXPLOIT THEIR
LOCATION ASTRIDE THE NATION'S PORTALS ALSO WAS FEARED, HENCE THE
RESTRICTION ON THE STATES. 

IF THE ROADS TO THE PORTS MAY BE OBSTRUCTED WITH LOCAL REGULATION AND
TAXES, INLAND PRODUCERS MAY BE MADE TO PAY TRIBUTE TO THE SEABOARD FOR
THE PRIVILEGE OF EXPORTATION, AND THE LONGER THE ROAD TO PORT, THE MORE
LOCALITIES THAT MAY LAY BURDENS ON THE PASSING TRAFFIC.  THE EVIDENT
POLICY OF THE CONSTITUTION IS TO AVOID THESE BURDENS AND MAINTAIN FREE
AND EQUAL ACCESS TO FOREIGN PORTS FOR THE INLAND AREAS.  IF THE
CONSTITUTIONAL POLICY CAN BE AVOIDED BY SHIFTING THE TAX FROM THE
EXPORTED ARTICLE ITSELF TO SOME INCIDENT SUCH AS CARRIAGE, UNAVOIDABLE
IN THE PROCESS OF EXPORTATION, THEN THE POLICY IS A PRACTICAL NULLITY. 
I THINK PROHIBITION OF A TAX ON EXPORTS AND IMPORTS GOES BEYOND
EXEMPTING SPECIFIC ARTICLES FROM DIRECT AD VALOREM DUTIES - IT
PROHIBITS TAXING EXPORTS AND IMPORTS AS A PROCESS. 

THIS IS A MATTER OF GIVING THE INLAND FARMS AND FACTORIES A FAIR
ACCESS TO THE SEA WHICH WILL ENABLE THEM TO COMPETE IN FOREIGN
COMMERCE, AS WELL AS TO MAKE IMPORTS AS EQUALLY AVAILABLE AS POSSIBLE,
REGARDLESS OF DISTANCE FROM PORT.  OCEAN RATES TO A GIVEN FOREIGN PORT
ARE THE SAME FROM ALL ATLANTIC PORTS, SO THAT ANY DIFFERENCES IN THE
COSTS OF REACHING THE COAST FROM THE INLAND CANNOT BE OFFSET AND
REPRESENT NET DIFFERENCES IN THE COSTS OF REACHING FOREIGN MARKETS. 

CONGRESS, THE INTERSTATE COMMERCE COMMISSION, THIS COURT, AND
AMERICAN RAIL AND MOTOR CARRIERS HAVE ALL CONCURRED IN THE DEVELOPMENT
OF RATE STRUCTURES ON THE PREMISE THAT EXPORTS ARE TO BE RECOGNIZED AS
SUCH FROM THE TIME THEY ARE DELIVERED TO THE CARRIER FOR EXPORT AND NOT
MERELY WHEN THEY REACH THE WATER'S EDGE.  THERE IS A WEALTH OF
STATUTORY MATERIAL RELATING TO THE CARRIAGE OF GOODS FOR EXPORT BY
RAILROADS, MOTOR CARRIERS, AND SHIPPING COMPANIES* .  RAILROADS HAVE
ESTABLISHED LAWFUL TARIFFS FOR EXPORT GOODS SUBSTANTIALLY LESS THAN FOR
LIKE GOODS DESTINED FOR LOCAL MARKETS.  TEXAS & P.R. CO. V. I.C.C., 162
U.S. 197; TEXAS & P.R. CO. V. UNITED STATES, 289 U.S. 627.  IN THE
LATTER CASE, THIS COURT RECOGNIZED THAT EXPORT AND IMPORT SHIPMENTS,
ALTHOUGH NOT MADE ON THROUGH BILLS, MIGHT LAWFULLY BE TRANSPORTED AT
RATES BELOW THOSE CHARGED FOR DOMESTIC TRAFFIC BETWEEN THE SAME
POINTS.  ID., AT 636.  THE DIFFERENTIAL, I BELIEVE, IS SOMETIMES AS
MUCH AS FIFTY PERCENT OF THE LOCAL TARIFF OVER THE SAME ROUTE.  OF
COURSE, IF THE EXPORT CHARACTER OF THE GOODS IS NOT TO BE RECOGNIZED
UNTIL THEY ARE READY TO BOARD OR HAVE BOARDED SHIP, THIS IS A RANK
DISCRIMINATION AGAINST LOCAL SHIPPERS QUITE WITHOUT JUSTIFICATION. 

*AS DEMONSTRATIVE THAT CONGRESS IS VITALLY CONCERNED ABOUT EXPORTS
AND IMPORTS, SEE 15 U.S.C. SEC. 173, RESPECTING THE ANNUAL REPORT ON
STATISTICS OF COMMERCE REQUIRED OF THE DIRECTOR OF THE BUREAU OF
FOREIGN AND DOMESTIC COMMERCE, IN WHICH HE MUST OUTLINE THE "KINDS,
QUANTITIES, AND VALUES" OF ALL ARTICLES EXPORTED OR IMPORTED, SHOWING
THE EXPORTS TO AND IMPORTS FROM EACH FOREIGN COUNTRY AND THEIR VALUES,
THE EXPORTS BEING REQUIRED TO BE BROKEN DOWN INTO THOSE MANUFACTURED IN
THE UNITED STATES AND THEIR VALUE, AND THOSE MANUFACTURED IN OTHER
COUNTRIES AND THEIR VALUE. 

ALSO, ALTHOUGH THE INTERSTATE COMMERCE ACT DOES NOT APPLY TO CARRIERS
ENGAGED IN FOREIGN COMMERCE INSOFAR AS THEIR CARRIAGE BEYOND THE LIMITS
OF THE UNITED STATES IS CONCERNED, 49 U.S.C. SEC. 902(I)(3); 49 C.F.R.
SEC. 141.67, THEIR STATE-SIDE ACTIVITIES HAVE RECEIVED CONSIDERABLE
ATTENTION.  CHAPTER 12, PART III OF THE ACT, RELATING TO WATER
CARRIERS, DEFINES "COMMON CARRIER BY WATER" AS "ANY PERSON WHICH HOLDS
ITSELF OUT TO THE GENERAL PUBLIC TO ENGAGE IN THE TRANSPORTATION BY
WATER IN INTERSTATE OR FOREIGN COMMERCE OF PASSENGERS OR PROPERTY
...."  49 U.S.C. SEC. 902(D).  SECTION 905(B) OF THE SAME TITLE STATES:
"IT SHALL BE THE DUTY OF COMMON CARRIERS BY WATER TO ESTABLISH
REASONABLE THROUGH ROUTES  ...  WITH COMMON CARRIERS BY RAILROAD ...
AND JUST AND REASONABLE RATES  ...  APPLICABLE THERETO  ...  COMMON
CARRIERS BY WATER MAY ESTABLISH REASONABLE THROUGH ROUTES AND RATES
...  WITH COMMON CARRIERS BY MOTOR VEHICLE.  ...  " AND SEC. 905(C)
PROVIDES THAT, "IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY WATER TO
...  GIVE ...  ANY UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE TO
ANY PARTICULAR PERSON, PORT,  ... TERRITORY, OR DESCRIPTION OF TRAFFIC
...  "    FURTHER CONGRESSIONAL CONCERN IS EVIDENCED IN 49 U.S.C. SEC.
906(A):  "EVERY COMMON CARRIER BY WATER SHALL FILE WITH THE COMMISSION,
AND PRINT, AND KEEP OPEN TO PUBLIC INSPECTION TARIFFS SHOWING ALL
RATES, FARES, CHARGES, CLASSIFICATIONS, RULES, REGULATIONS, AND
PRACTICES FOR THE TRANSPORTATION IN INTERSTATE OR FOREIGN COMMERCE OF
PASSENGERS AND PROPERTY BETWEEN PLACES ON ITS OWN ROUTE, AND BETWEEN
SUCH PLACES AND PLACES ON THE ROUTE OF ANY OTHER SUCH CARRIER OR ON THE
ROUTE OF ANY COMMON CARRIER BY RAILROAD OR BY MOTOR VEHICLE, WHEN A
THROUGH ROUTE AND JOINT RATE SHALL HAVE BEEN ESTABLISHED.  ...  "  SEE
ALSO 49 U.S.C. SEC. 6, PAR. (12), PROVIDING:  "IF ANY COMMON CARRIER
SUBJECT TO THIS CHAPTER AND CHAPTERS 8 AND 12 OF THIS TITLE ENTERS INTO
ARRANGEMENTS WITH ANY WATER CARRIER OPERATING FROM A PORT IN THE UNITED
STATES TO A FOREIGN COUNTRY  ...  FOR THE HANDLING OF THROUGH BUSINESS
BETWEEN INTERIOR POINTS OF THE UNITED STATES AND SUCH FOREIGN COUNTRY,
THE COMMISSION MAY BY ORDER REQUIRE SUCH COMMON CARRIER TO ENTER INTO
SIMILAR ARRANGEMENTS WITH ANY OR ALL OTHER LINES OF STEAMSHIPS
OPERATING FROM SAID PORT TO THE SAME FOREIGN COUNTRY." 

THE EVER-PRESENT CONCERN WITH THROUGH ROUTES AND JOINT RATES WOULD
APPEAR A STRONG INDICATION THAT THE CONGRESS REGARDS GOODS AS IN EXPORT
FROM THE TIME THEY ARE FIRST CONSIGNED TO A CARRIER FOR A FOREIGN
DESTINATION, NOT FROM THE TIME THEY REACH THE SHIP ON WHICH THEY ARE TO
BE CARRIED. 

WHAT MARYLAND HAS DONE, IF THESE GOODS WHILE IN TRANSIT DO CONSTITUTE
EXPORTS, IS TO TAX GROSS PROCEEDS OF THEIR TRANSPORTATION AND HANDLING,
NOT MERELY THE PROFITS THEREFROM.  THIS ADDS DIRECTLY TO THE COST OF
THEIR REACHING SHIP-SIDE, AND THE GREATER DISTANCE THEY TRAVEL, THE
GREATER POSSIBLE ACCUMULATION OF TAX BURDEN.  CLEARLY, THIS IS AN
OBSTRUCTION IN THE PATH OF THE FEDERAL POLICY. 

HOWEVER, THE EFFECT OF THE FEDERAL POLICY ON THE VALIDITY OF THE
MARYLAND TAX WAS NOT ADVANCED IN THE COURTS BELOW NOR HERE BY RAILROAD
COUNSEL, SO I DO NOT WISH TO EXPRESS A FINAL VIEW ON THE MATTER.  BUT I
SUSPECT TODAY'S DECISION WILL CAUSE MISCHIEF IN QUARTERS WE HAVE NOT
CONSIDERED. 

FN1  MD. ANN. CODE (1943 SUPP.), ART. 81, SECS. 94 1/2 AND 95. 

FN2  THIS CASE INVOLVED A FEDERAL TAX EQUIVALENT TO 3 PER CENT OF THE
PRICE "UPON ALL TENNIS RACKETS, GOLF CLUBS, BASEBALL BATS," ETC.  ACT
OF OCT. 3, 1917, SEC. 600(F), 40 STAT. 300, 316.  IT PRESENTED, AS DID
THE FAIRBANK, HVOSLEF, AND THAMES & MERSEY INS. CO. CASES, A QUESTION
UNDER ART. I, SEC. 9, CL. 5 OF THE CONSTITUTION, WHICH PROVIDES, "NO
TAX OR DUTY SHALL BE LAID ON ARTICLES EXPORTED FROM ANY STATE." 

FN3  THE TAX REQUIRED OF APPELLANT IS "UPON SUCH PROPORTION OF ITS
GROSS EARNINGS AS THE LENGTH OF ITS LINE IN THIS STATE BEARS TO THE
WHOLE LENGTH OF ITS LINE."  SEC. 95(B), SUPRA, NOTE 1. 
..END :




















WESTERN MARYLAND R. CO. V. ROGAN, 340 U.S. 520 


NO. 205.  ARGUED NOVEMBER 28-29, 1950.  - DECIDED FEBRUARY 26, 1951.  -
MD. - , 73 A.2D 12, AFFIRMED. 


A MARYLAND FRANCHISE TAX ON RAILROADS, MEASURED BY GROSS RECEIPTS
APPORTIONED ACCORDING TO MILEAGE WITHIN THE STATE, WAS CHALLENGED AS
INVALID UNDER THE IMPORT-EXPORT CLAUSE, ART. I, SEC. 10, CL. 2, OF THE
FEDERAL CONSTITUTION, TO THE EXTENT THAT THE GROSS RECEIPTS BY WHICH
THE TAX IS MEASURED INCLUDE REVENUES DERIVED FROM THE TRANSPORTATION OF
GOODS MOVING IN FOREIGN TRADE.  HELD:  THE TAX IS SUSTAINED.  CANTON R.
CO. V. ROGAN, ANTE, P. 511.  PP. 520-522. 

WESTERN MARYLAND RAILWAY CO. V. ROGAN ET AL., CONSTITUTING THE STATE
TAX COMMISSION OF MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

A STATE FRANCHISE TAX ASSESSED AGAINST THE APPELLANT WAS SUSTAINED BY
THE STATE SUPREME COURT AGAINST A CHALLENGE THAT IT WAS INVALID UNDER
THE FEDERAL CONSTITUTION.   - MD. - , 73 A.2D 12.  ON APPEAL TO THIS
COURT, AFFIRMED, P. 522. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO CANTON R. CO. V. ROGAN, ANTE, P. 511. 
THIS APPELLANT LIKEWISE CHALLENGES THE VALIDITY UNDER ART. I, SEC. 10,
CL. 2 OF THE CONSTITUTION OF THE APPLICATION OF THE MARYLAND FRANCHISE
TAX* TO THE EXTENT THAT THE GROSS RECEIPTS BY WHICH THE TAX IS MEASURED
INCLUDE REVENUES DERIVED FROM THE TRANSPORTATION OF GOODS MOVING IN
FOREIGN TRADE. 

*MD. ANN. CODE (1943 SUPP.), ART. 81, SECS. 94 1/2 AND 95. 

WESTERN MARYLAND RAILWAY COMPANY IS AN INTERSTATE COMMON CARRIER BY
RAIL WITH LINES IN MARYLAND, WEST VIRGINIA AND PENNSYLVANIA.  IT
OPERATES SEVERAL PIERS IN THE PORT OF BALTIMORE FOR HANDLING CARGOES OF
COAL, ORES AND GENERAL MERCHANDISE, AS WELL AS A GRAIN ELEVATOR.  A
SUBSTANTIAL PROPORTION OF WESTERN MARYLAND'S FREIGHT TRAFFIC FROM AND
TO THESE FACILITIES CONSISTS OF THE TRANSPORTATION OF GOODS IMPORTED
INTO OR TO BE EXPORTED FROM THE UNITED STATES. 

THE PRESENT CASE CONCERNS THE TAXABLE YEARS 1945 AND 1946.  FOR 1945
WESTERN MARYLAND REPORTED GROSS RECEIPTS OF $33,156,236.74, OF WHICH
THE STATE TAX COMMISSION, PURSUANT TO THE STATUTORY FORMULA,
APPORTIONED $13,219,822.62 TO MARYLAND.  FOR 1946 THE AMOUNTS WERE
$30,844,132.74 AND $12,322,817.41 RESPECTIVELY.  IN SUBSEQUENT AMENDED
RETURNS WESTERN MARYLAND EXCLUDED FROM TAXABLE RECEIPTS THE SUMS OF
$2,505,322.58 FOR 1945 AND $5,405,559.44 FOR 1946.  IT CLAIMED THAT
THESE AMOUNTS REPRESENTED REVENUES FROM THE TRANSPORTATION OVER ITS
LINES OF EXPORTS AND IMPORTS AND WERE THEREFORE BEYOND THE STATE'S
POWER TO TAX.  AFTER A HEARING, THE COMMISSION REJECTED THIS
CONTENTION.  ITS ASSESSMENT WAS SUSTAINED, AND THE CASE IS HERE ON
APPEAL. 

WHAT WE HAVE SAID IN CANTON R. CO. V. ROGAN, SUPRA, IS DISPOSITIVE OF
THIS CASE.  THE PRESENT FACTS ILLUSTRATE HOW WIDE A ZONE OF TAX
IMMUNITY WOULD BE CREATED IF THE CONTRARY HOLDING WERE MADE IN THE
CANTON R. CO. CASE.  THERE WE WERE DEALING WITH THE HANDLING OF EXPORTS
AND IMPORTS WITHIN A PORT.  HERE WE HAVE TRANSPORTATION OF EXPORTS AND
IMPORTS TO AND FROM THE PORT.  IF MARYLAND WERE REQUIRED TO GRANT TAX
IMMUNITY TO THE SERVICES INVOLVED IN GETTING THE EXPORTS TO THE PORT
AND THE IMPORTS TO THEIR DESTINATION, SO WOULD ANY OTHER STATE.  THE
ULTIMATE IMPACT OF SUCH A HOLDING IS DIFFICULT TO MEASURE, SINCE
MANIFOLD SERVICES ARE INVOLVED IN THE MOVEMENT OF EXPORTS AND IMPORTS
WITHIN THE COUNTRY.  PROBLEMS OF THIS NATURE, LIKE MANY PROBLEMS IN THE
LAW, INVOLVE THE DRAWING OF LINES.  SO FAR AS TAXES ON ACTIVITIES
CONNECTED WITH BRINGING EXPORTS TO OR IMPORTS FROM THE SHIP ARE
CONCERNED, WE THINK THE LINE MUST BE DRAWN AT THE WATER'S EDGE. 
WHETHER LOADING AND UNLOADING WOULD BE EXEMPT IS A QUESTION WE
RESERVE.  AFFIRMED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

(FOR OPINION OF MR. JUSTICE JACKSON, JOINED BY MR. JUSTICE
FRANKFURTER, RESERVING JUDGMENT IN THIS CASE AND IN NO. 96, CANTON R.
CO. V. ROGAN, SEE ANTE, P. 511.) 
..END :

















WARREN V. UNITED STATES, 340 U.S. 523 


NO. 87.  ARGUED JANUARY 2, 1951.  - DECIDED FEBRUARY 26, 1951.  - 179
F.2D 919, REVERSED. 


PETITIONER, A MESSMAN ON A SHIP OWNED BY THE UNITED STATES, WENT
ASHORE ON LEAVE WHILE THE VESSEL WAS AT NAPLES.  HE AND TWO OTHER
MEMBERS OF THE CREW DID SOME SIGHTSEEING, DRANK A BOTTLE OF WINE
TOGETHER, AND THEN SPENT AN HOUR AND A HALF AT A DANCE HALL.  A ROOM
ADJOINING THE DANCE HALL AND OVERLOOKING THE SEA HAD FRENCH DOORS
OPENING ONTO AN UNPROTECTED LEDGE.  PETITIONER STEPPED ONTO THE LEDGE,
GRASPED AN IRON ROD WHICH SEEMED TO BE ATTACHED TO THE BUILDING, AND
LEANED FORWARD TO TAKE A LOOK.  THE IRON ROD BROKE OFF AND PETITIONER
LOST HIS BALANCE, FELL, AND BROKE HIS LEG.  HELD:  PETITIONER WAS
ENTITLED TO RECOVER FROM THE UNITED STATES FOR MAINTENANCE AND CURE. 
PP. 524-530. 

1.  THE EXCEPTIONS TO THE LIABILITY OF SHIPOWNERS, WHICH THE
SHIPOWNERS' LIABILITY CONVENTION, ART. 2, PAR. 2, PERMITS TO BE MADE BY
"NATIONAL LAWS OR REGULATIONS," ARE OPERATIVE BY VIRTUE OF THE GENERAL
MARITIME LAW AND NO ACT OF CONGRESS IS NECESSARY TO GIVE THEM FORCE. 
PP. 525-526. 

(A)  AS USED IN ART. 2, PAR. 2 OF THE CONVENTION, THE TERM "NATIONAL
LAWS OR REGULATIONS" INCLUDES THE RULES OF COURT DECISIONS AS WELL AS
LEGISLATIVE ACTS.  PP. 526-528. 

(B)  BOTH PARAGRAPH 1 AND PARAGRAPH 2 OF ARTICLE 2 OF THE CONVENTION
STATE THE STANDARD OF LIABILITY WHICH LEGISLATIVE AND DECISIONAL LAW
DEFINE IN PARTICULARITY.  PP. 527-528. 

2.  PETITIONER'S INJURY WAS NOT DUE TO HIS "WILFUL ACT, DEFAULT OR
MISBEHAVIOUR," WITHIN THE MEANING OF ART. 2, PAR. 2(B) OF THE
CONVENTION, AND RECOVERY WAS NOT BARRED THEREBY.  PP. 528-529. 

3.  PETITIONER'S INJURY OCCURRED "IN THE SERVICE OF THE SHIP," WITHIN
THE MEANING OF THAT TERM AS USED IN ART. 2, PAR. 2(A) OF THE
CONVENTION.  PP. 529-530. 

WARREN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUIT BY PETITIONER FOR MAINTENANCE AND CURE, THE DISTRICT COURT
AWARDED MAINTENANCE.  75 F.SUPP.  210, 76 F.SUPP.  735.  THE COURT OF
APPEALS DISALLOWED IT.  179 F.2D 919.  THIS COURT GRANTED CERTIORARI. 
340 U.S. 806.  REVERSED, P. 530. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER SEEKS IN THIS SUIT MAINTENANCE AND CURE FROM THE UNITED
STATES, AS OWNER OF S.S. ANNA HOWARD SHAW.  PETITIONER WAS A MESSMAN
WHO WENT ASHORE ON LEAVE WHILE THE VESSEL WAS AT NAPLES IN 1944.  HE
AND TWO OTHER MEMBERS OF THE CREW FIRST DID SOME SIGHTSEEING.  THEN THE
THREE OF THEM DRANK ONE BOTTLE OF WINE AND WENT TO A DANCE HALL, WHERE
THEY STAYED AN HOUR AND A HALF, DANCING.  THERE WAS A ROOM ADJOINING
THE DANCE HALL THAT OVERLOOKED THE OCEAN.  FRENCH DOORS OPENED ONTO AN
UNPROTECTED LEDGE WHICH EXTENDED OUT FROM THE BUILDING A FEW FEET. 
PETITIONER STEPPED TO WITHIN 6 INCHES OF THE EDGE AND LEANED OVER TO
TAKE A LOOK.  AS HE DID SO, HE TOOK HOLD OF AN IRON ROD WHICH SEEMED TO
BE ATTACHED TO THE BUILDING.  THE ROD CAME OFF AND PETITIONER LOST HIS
BALANCE AND FELL, BREAKING A LEG. 

THE DISTRICT COURT AWARDED MAINTENANCE.  FN1  75 F.SUPP.  210, 76
F.SUPP.  735.  THE COURT OF APPEALS DISALLOWED IT.  179 F.2D 919.  THE
CASE IS HERE ON CERTIORARI. 

THE SHIPOWNERS' LIABILITY CONVENTION, PROCLAIMED BY THE PRESIDENT
SEPT. 29, 1939, 54 STAT. 1693, PROVIDES IN ART. 2: 

"1.  THE SHIPOWNER SHALL BE LIABLE IN RESPECT OF - 

"(A)  SICKNESS AND INJURY OCCURRING BETWEEN THE DATE SPECIFIED IN THE
ARTICLES OF AGREEMENT FOR REPORTING FOR DUTY AND THE TERMINATION OF THE
ENGAGEMENT; 

"(B)  DEATH RESULTING FROM SUCH SICKNESS OR INJURY. 

"2.  PROVIDED THAT NATIONAL LAWS OR REGULATIONS MAY MAKE EXCEPTIONS
IN RESPECT OF: 

"(A)  INJURY INCURRED OTHERWISE THAN IN THE SERVICE OF THE SHIP; 

"(B)  INJURY OR SICKNESS DUE TO THE WILFUL ACT, DEFAULT OR
MISBEHAVIOUR OF THE SICK, INJURED OR DECEASED PERSON; 

"(C)  SICKNESS OR INFIRMITY INTENTIONALLY CONCEALED WHEN THE
ENGAGEMENT IS ENTERED INTO." 

PETITIONER'S ARGUMENT IS TWOFOLD.  HE MAINTAINS FIRST THAT UNDER
PARAGRAPH 1 A SHIPOWNER'S DUTY TO PROVIDE MAINTENANCE AND CURE IS
ABSOLUTE AND THAT THE EXCEPTIONS SPECIFIED IN PARAGRAPH 2 ARE NOT
OPERATIVE UNTIL A STATUTE IS ENACTED WHICH PUTS THEM IN FORCE.  HE
ARGUES IN THE SECOND PLACE THAT, EVEN IF PARAGRAPH 2 IS OPERATIVE
WITHOUT AN ACT OF CONGRESS, HIS CONDUCT WAS NOT DUE TO A "WILFUL ACT,
DEFAULT OR MISBEHAVIOUR" WITHIN THE MEANING OF THAT PARAGRAPH.  AN
AMICUS CURIAE ARGUES THAT THE INJURY WAS NOT RECEIVED "IN THE SERVICE
OF THE SHIP" WITHIN THE MEANING OF PARAGRAPH 2(A) OF ART. 2. 

THERE IS SUPPORT FOR PETITIONER'S FIRST POINT IN THE CONCURRING
OPINION OF CHIEF JUSTICE STONE IN WATERMAN STEAMSHIP CORP. V. JONES,
318 U.S. 724, 738.  FN2  BUT WE THINK THE PREFERRED VIEW IS OPPOSED. 
OUR CONCLUSION IS THAT THE EXCEPTIONS PERMITTED BY PARAGRAPH 2 ARE
OPERATIVE BY VIRTUE OF THE GENERAL MARITIME LAW AND THAT NO ACT OF
CONGRESS IS NECESSARY TO GIVE THEM FORCE. 

THE LANGUAGE OF PARAGRAPH 2, IN ITS ORDINARY RANGE OF MEANING, EASILY
PERMITS THAT CONSTRUCTION.  IT IS "NATIONAL LAWS OR REGULATIONS" WHICH
MAY MAKE EXCEPTIONS.  THE TERM LAW IN OUR JURISPRUDENCE USUALLY
INCLUDES THE RULES OF COURT DECISIONS AS WELL AS LEGISLATIVE ACTS. 
THAT WAS HELD IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, TO BE TRUE OF
THE PHRASE "THE LAWS OF THE SEVERAL STATES" AS USED IN THE FIRST
JUDICIARY ACT.  1 STAT. 73, SEC. 34.  NO REASON IS APPARENT WHY A MORE
RESTRICTED MEANING SHOULD BE GIVEN "NATIONAL LAWS OR REGULATIONS."  THE
PURPOSE OF THE CONVENTION WOULD NOT BE SERVED BY THE NARROW MEANING. 
THIS CONVENTION WAS A PRODUCT OF THE INTERNATIONAL LABOR ORGANIZATION
N3.  ITS PURPOSE WAS TO PROVIDE AN INTERNATIONAL SYSTEM OF REGULATION
OF THE SHIPOWNER'S LIABILITY.  THAT INTERNATIONAL SYSTEM WAS AIMED AT
PROVIDING A REASONABLE AVERAGE WHICH COULD BE APPLIED IN ANY COUNTRY. 
FN4  WE FIND NO SUGGESTION THAT IT WAS DESIGNED TO ADOPT A MORE STRICT
STANDARD OF LIABILITY THAN THAT WHICH OUR MARITIME LAW PROVIDES.  THE
AIM INDEED WAS NOT TO CHANGE MATERIALLY AMERICAN STANDARDS BUT TO
EQUALIZE OPERATING COSTS BY RAISING THE STANDARDS OF MEMBER NATIONS TO
THE AMERICAN LEVEL.  FN5  IF THE CONVENTION WAS DESIGNED TO MAKE
ABSOLUTE THE LIABILITY OF THE SHIPPING INDUSTRY UNTIL AND UNLESS EACH
MEMBER NATION BY LEGISLATIVE ACT REDUCED IT, WE CAN HARDLY BELIEVE SOME
PLAIN INDICATION OF THE PURPOSE WOULD NOT HAVE BEEN MADE.  MUCH OF THIS
BODY OF MARITIME LAW HAD DEVELOPED THROUGH THE CENTURIES IN JUDICIAL
DECISIONS.  TO REJECT THAT BODY OF LAW AND START ANEW WITH A COMPLETE
CODE WOULD BE A NOVEL AND DRASTIC STEP.  UNDER OUR CONSTRUCTION THE
CONVENTION PROVIDES A REASONABLE AVERAGE FOR INTERNATIONAL
APPLICATION.  THE DEFINITION OF THE EXCEPTIONS ITSELF HELPS PROVIDE THE
AVERAGE, LEAVING THE CREATION OF THE EXCEPTIONS TO ANY SOURCE OF LAW
WHICH THE MEMBER NATIONS RECOGNIZE.  THAT VIEW SERVES THE PURPOSE OF
THE CONVENTION AND CONFORMS TO THE NORMAL MEANING OF THE WORDS USED. 
OUR CONCLUSION IS THAT BOTH PARAGRAPH 1 AND PARAGRAPH 2 OF ART. 2 STATE
THE STANDARD OF LIABILITY WHICH LEGISLATIVE AND DECISIONAL LAW DEFINE
IN PARTICULARITY. 

THE DISTRICT COURT HELD THAT PETITIONER'S DEGREE OF FAULT DID NOT BAR
A RECOVERY FOR MAINTENANCE AND CURE.  THE COURT OF APPEALS THOUGHT
OTHERWISE.  THE QUESTION IS WHETHER THE INJURY WAS "DUE TO THE WILFUL
ACT, DEFAULT OR MISBEHAVIOUR" OF PETITIONER WITHIN THE MEANING OF ART.
2, PARAGRAPH 2(B) OF THE CONVENTION.  THE STANDARD PRESCRIBED IS NOT
NEGLIGENCE BUT WILFUL MISBEHAVIOR.  IN THE MARITIME LAW IT HAS LONG
BEEN HELD THAT WHILE FAULT OF THE SEAMAN WILL FORFEIT THE RIGHT TO
MAINTENANCE AND CURE, IT MUST BE "SOME POSITIVELY VICIOUS CONDUCT -
SUCH AS GROSS NEGLIGENCE OR WILLFUL DISOBEDIENCE OF ORDERS."  THE
CHANDOS, 6 SAWY.  544, 549-550; THE CITY OF CARLISLE, 39 F. 807, 813;
THE BEN FLINT, 1 BISS.  562, 566.  AND SEE REED V. CANFIELD, 1 SUMN. 
195, 206.  IN AGUILAR V. STANDARD OIL CO., 318 U.S. 724, 731, WE STATED
THE RULE AS FOLLOWS:  "CONCEPTIONS OF CONTRIBUTORY NEGLIGENCE, THE
FELLOWSERVANT DOCTRINE, AND ASSUMPTION OF RISK HAVE NO PLACE IN THE
LIABILITY OR DEFENSE AGAINST IT.  ONLY SOME WILFUL MISBEHAVIOR OR
DELIBERATE ACT OF INDISCRETION SUFFICES TO DEPRIVE THE SEAMAN OF HIS
PROTECTION." 

THE EXCEPTION WHICH SOME CASES HAVE MADE FOR INJURIES RESULTING FROM
INTOXICATION (SEE AGUILAR V. STANDARD OIL CO., SUPRA, P. 731, NOTES 11
AND 12) HAS NO PLACE IN THIS CASE.  AS THE DISTRICT JUDGE RULED, THE
AMOUNT OF WINE CONSUMED HARDLY PERMITS A FINDING OF INTOXICATION. 
PETITIONER WAS PLAINLY NEGLIGENT.  YET WE WOULD HAVE TO STRAIN TO FIND
THE ELEMENT OF WILFULNESS OR ITS EQUIVALENT.  HE SOUGHT TO USE SOME
CARE WHEN HE LOOKED DOWN FROM THE SMALL BALCONY, AS EVIDENCED BY HIS
SEIZURE OF THE IRON BAR FOR A HANDHOLD.  HIS CONDUCT DID NOT MEASURE UP
TO A STANDARD OF DUE CARE UNDER THE CIRCUMSTANCES.  BUT WE AGREE WITH
THE DISTRICT COURT THAT IT WAS NOT WILFUL MISBEHAVIOR WITHIN THE
MEANING OF THE CONVENTION. 

FINALLY IT IS SUGGESTED THAT THE INJURY DID NOT OCCUR "IN THE SERVICE
OF THE SHIP," AS THAT TERM IS USED IN PARAGRAPH 2(A) OF ART. 2 OF THE
CONVENTION.  WE HELD IN AGUILAR V. STANDARD OIL CO., SUPRA, THAT
MAINTENANCE AND CURE EXTENDS TO INJURIES OCCURRING WHILE THE SEAMAN IS
DEPARTING ON OR RETURNING FROM SHORE LEAVE THOUGH HE HAS AT THE TIME NO
DUTY TO PERFORM FOR THE SHIP.  IT IS CONTENDED THAT THE DOCTRINE OF
THAT CASE SHOULD NOT BE EXTENDED TO INJURIES RECEIVED DURING THE
DIVERSIONS OF THE SEAMAN AFTER HE HAS REACHED THE SHORE.  MR. JUSTICE
RUTLEDGE, SPEAKING FOR THE COURT IN THE AGUILAR CASE, STATED THE
REASONS FOR EXTENDING MAINTENANCE AND CURE TO SHORE LEAVE CASES AS
FOLLOWS (PP. 733-734): 

"TO RELIEVE THE SHIPOWNER OF HIS OBLIGATION IN THE CASE OF INJURIES
INCURRED ON SHORE LEAVE WOULD CAST UPON THE SEAMAN HAZARDS ENCOUNTERED
ONLY BY REASON OF THE VOYAGE.  THE ASSUMPTION IS HARDLY SOUND THAT THE
NORMAL USES AND PURPOSES OF SHORE LEAVE ARE 'EXCLUSIVELY PERSONAL' AND
HAVE NO RELATION TO THE VESSEL'S BUSINESS.  MEN CANNOT LIVE FOR LONG
COOPED UP ABOARD SHIP, WITHOUT SUBSTANTIAL IMPAIRMENT OF THEIR
EFFICIENCY, IF NOT ALSO SERIOUS DANGER TO DISCIPLINE.  RELAXATION
BEYOND THE CONFINES OF THE SHIP IS NECESSARY IF THE WORK IS TO GO ON,
MORE SO THAT IT MAY MOVE SMOOTHLY.  NO MASTER WOULD TAKE A CREW TO SEA
IF HE COULD NOT GRANT SHORE LEAVE, AND NO CREW WOULD BE TAKEN IF IT
COULD NEVER OBTAIN IT.  ...  IN SHORT, SHORE LEAVE IS AN ELEMENTAL
NECESSITY IN THE SAILING OF SHIPS, A PART OF THE BUSINESS AS OLD AS THE
ART, NOT MERELY A PERSONAL DIVERSION. 

"THE VOYAGE CREATES NOT ONLY THE NEED FOR RELAXATION ASHORE, BUT THE
NECESSITY THAT IT BE SATISFIED IN DISTANT AND UNFAMILIAR PORTS.  IF, IN
THOSE SURROUNDINGS, THE SEAMAN, WITHOUT DISQUALIFYING MISCONDUCT,
CONTRACTS DISEASE OR INCURS INJURY, IT IS BECAUSE OF THE VOYAGE, THE
SHIPOWNER'S BUSINESS.  THAT BUSINESS HAS SEPARATED HIM FROM HIS USUAL
PLACES OF ASSOCIATION.  BY ADDING THIS SEPARATION TO THE RESTRICTIONS
OF LIVING AS WELL AS WORKING ABOARD, IT FORGES DUAL AND UNIQUE
COMPULSIONS FOR SEEKING RELIEF WHEREVER IT MAY BE FOUND.  IN SUM, IT IS
THE SHIP'S BUSINESS WHICH SUBJECTS THE SEAMAN TO THE RISKS ATTENDING
HOURS OF RELAXATION IN STRANGE SURROUNDINGS.  ACCORDINGLY, IT IS BUT
REASONABLE THAT THE BUSINESS EXTEND THE SAME PROTECTIONS AGAINST INJURY
FROM THEM AS IT GIVES FOR OTHER RISKS OF THE EMPLOYMENT." 

THIS REASONING IS AS APPLICABLE TO INJURIES RECEIVED DURING THE
PERIOD OF RELAXATION WHILE ON SHORE AS IT IS TO THOSE RECEIVED WHILE
REACHING IT.  TO RESTRICT THE LIABILITY ALONG THE LINES SUGGESTED WOULD
BE TO WHITTLE IT DOWN "BY RESTRICTIVE AND ARTIFICIAL DISTINCTIONS" AS
ATTEMPTED IN THE AGUILAR CASE.  WE REPEAT WHAT WE SAID THERE, "IF
LEEWAY IS TO BE GIVEN IN EITHER DIRECTION, ALL THE CONSIDERATIONS WHICH
BROUGHT THE LIABILITY INTO BEING DICTATE IT SHOULD BE IN THE SAILOR'S
BEHALF."  318 U.S. AT 735.  REVERSED. 

FN1  PETITIONER SUED THE UNITED STATES AS OWNER AND AMERICAN SOUTH
AFRICAN LINE, INC. AS THE GENERAL AGENT AND OPERATOR.  THE DISTRICT
COURT DISMISSED THE LIBEL AS TO THE UNITED STATES AND HELD THE GENERAL
AGENT LIABLE UNDER HUST V. MOORE-MCCORMACK LINES, 328 U.S. 707.  DURING
THE PENDENCY OF THE APPEAL BY THE GENERAL AGENT AND THE CROSS-APPEAL BY
PETITIONER, FINK V. SHEPARD S.S. CO., 337 U.S. 810, WAS DECIDED. 
ACCORDINGLY THE DECREE AGAINST THE GENERAL AGENT WAS REVERSED AND THE
COURT OF APPEALS CONSIDERED THE CASE ON THE MERITS AGAINST THE UNITED
STATES. 

FN2  CHIEF JUSTICE STONE RELIED ON THE REPORT OF THE SECRETARY OF
STATE TO THE PRESIDENT ON THE NEED FOR LEGISLATION IMPLEMENTING THE
CONVENTION.  THE SECRETARY SAID IN PART:  "MANY OF THE PROVISIONS OF
THE CONVENTION ARE CONSIDERED TO BE SELF-EXECUTING, AND THERE WOULD
APPEAR TO BE NO NEED TO REPEAT VERBATIM THE LANGUAGE OF THE CONVENTION
IN A STATUTE TO MAKE IT EFFECTIVE.  SOME OF THE ARTICLES OF THE
CONVENTION, HOWEVER, AFTER STATING THE GENERAL RULE, PROVIDE THAT
NATIONAL LAWS MAY MAKE SPECIFIED EXCEPTIONS THERETO.  IF THIS
GOVERNMENT IS TO BE EXCEPTED FROM CERTAIN OBLIGATIONS OF THE CONVENTION
OR ALTERATIONS IN OUR PRESENT PRACTICE, IT IS NECESSARY TO DO SO
AFFIRMATIVELY BY STATUTE."  H.R. REP. NO. 1328, 76TH CONG., 1ST SESS.
6. 

THE SECRETARY HAD THE FOLLOWING TO SAY ABOUT ARTICLE 2:  "SECTION 4
FOLLOWS THE EXCEPTIONS IN ARTICLE 2 OF THE CONVENTION WHICH SETS FORTH
THE RISKS COVERED IN THE ENTIRE CONVENTION.  ... PARAGRAPH 1 OF ARTICLE
2 OF THE CONVENTION WAS NOT INCORPORATED IN THE BILL BECAUSE OF THE
BELIEF (1) THAT IT IS SELF-EXECUTING IN THAT IT ESTABLISHES LIABILITY,
ALTHOUGH NO DEFINITE AMOUNT IS PROVIDED; AND (2) THAT IT WILL NOT BE
HELD BY THE COURTS TO CONFLICT WITH PRESENT LAW IN THIS COUNTRY."  ID.,
P. 6. 

THE IMPLEMENTING LEGISLATION WAS PASSED BY THE HOUSE, 84 CONG. REC.
10540, BUT NOT BY THE SENATE.  SEE HEARINGS, SUBCOMMITTEE OF THE
COMMITTEE ON COMMERCE, U.S. SENATE, ON H.R. 6881, 76TH CONG., 3D SESS.;
S. DOC. 113, 77TH CONG., 1ST SESS.; 87 CONG. REC. 7434. 

FN3  SEE FRIED, RELATIONS BETWEEN THE UNITED NATIONS AND THE
INTERNATIONAL LABOR ORGANIZATION, 41 AM. POL.  SCI.  REV. 963; DILLON,
INTERNATIONAL LABOR CONVENTIONS (1942); SHOTWELL, THE ORIGINS OF THE
INTERNATIONAL LABOR ORGANIZATION (1934). 

THE UNITED STATES BECAME A MEMBER OF THE INTERNATIONAL LABOR
ORGANIZATION ON AUGUST 20, 1934.  SEE U.S. TREATIES, TREATY SERIES, NO.
874. 

FN4  SEE INTERNATIONAL LABOR CONFERENCE, PROCEEDINGS, THIRTEENTH
SESS. (1929), 131. 

FN5  THE REPORT OF THE SECRETARY OF STATE RECOMMENDING RATIFICATION
OF THE CONVENTION EMPHASIZED THAT THE TREATY (1) WOULD NOT MATERIALLY
CHANGE AMERICAN LEGAL STANDARDS AND (2) WOULD RAISE STANDARDS OF MEMBER
NATIONS TO THE AMERICAN LEVEL AND THUS EQUALIZE OPERATING COSTS.  S.
EXEC. REP. 8, 75TH CONG., 3D SESS. 3. 

MR. JUSTICE JACKSON AND MR. JUSTICE CLARK DISSENT ON THE GROUND THAT
THE INJURIES WERE NOT SUSTAINED IN THE SERVICE OF THE SHIP.  AGUILAR V.
STANDARD OIL CO., 318 U.S. 724, HELD A SEAMAN TO BE IN THE SHIP'S
SERVICE WHILE GOING TO OR FROM THE SHIP OVER PREMISES AT WHICH THE SHIP
DOCKED, EVEN IF THE PURPOSE OF BEING ASHORE WAS LEAVE FROM DUTY.  THE
ROUTE OF ACCESS WAS NOT THE CHOICE OF THE SEAMAN, AND ACCESS TO THE
SHIP WAS HELD ESSENTIAL TO THE SHIP'S SERVICE.  BUT THE CHOICE OF
PLACES OF REFRESHMENT AND VARIETIES OF ENTERTAINMENT ARE THE SAILOR'S
OWN.  UNLESS HIS EMPLOYMENT IS A POLICY OF ACCIDENT INSURANCE WHILE ON
LEAVE, RECOVERY CANNOT BE SUSTAINED IN THIS CASE.  THAT MIGHT BE A WISE
RULE OF LAW BUT WE THINK IT ONE THAT SHOULD DEPEND ON LEGISLATION. 
MR. JUSTICE FRANKFURTER, DISSENTING. 

WE BROUGHT THIS CASE HERE BECAUSE IT INVOLVED CONSTRUCTION OF THE
SHIPOWNERS' LIABILITY CONVENTION, 54 STAT. 1693.  AS TO THAT, I AGREE
WITH THE COURT THAT THE CONVENTION DOES NOT AFFORD ANY BASIS FOR
LIBELLANT'S CLAIM.  ASSUMING THAT ARTICLE 2 OF THE CONVENTION IS SELF
EXECUTING, A MATTER WHICH I DO NOT NOW HAVE TO DECIDE, THE EXCEPTIONS
PERMITTED BY PARAGRAPH 2 OF THAT ARTICLE ARE OPERATIVE BY VIRTUE OF THE
GENERAL MARITIME LAW.  BUT I AM UNABLE TO AGREE THAT WE SHOULD REVERSE
THE COURT OF APPEALS ON ITS APPLICATION OF THE PROPER STANDARD TO THE
FACTS. 

THE DISTRICT JUDGE GAVE THIS DESCRIPTION OF WHAT HAPPENED: 

"LIBELLANT WAS A MESSMAN ABOARD THE S.S. 'ANNA HOWARD SHAW.'  ON
OCTOBER 30, 1944, WHILE THE VESSEL WAS IN THE BAY OF NAPLES, ITALY,
LIBELLANT LEFT ON SHORE LEAVE.  IN COMPANY WITH THE SHIP'S CARPENTER
AND ANOTHER MESSMAN, HE WENT SIGHTSEEING.  THEY CAME TO THE WATERFRONT
TOWN OF BAGNOLI (REFERRED TO BY LIBELLANT AS MAGNOLIA).  THE GROUP
STOPPED AT VARIOUS STORES AND AT ONE SUCH PLACE THEY BOUGHT A SMALL
BOTTLE OF WINE WHICH THEY DIVIDED AMONG THEM.  ABOUT THREE MILES DOWN
THE SHORE FROM WHERE THEY HAD LANDED FROM A MOTOR LIFEBOAT, THEY
STOPPED AT A DANCE HALL AND STAYED AN HOUR AND A HALF OR SO.  LIBELLANT
SAYS HE WAS DANCING MOST OF THE TIME, AND DRANK ONLY ONE ADDITIONAL
GLASS OF WINE. 

"AFTER A TIME LIBELLANT ENTERED ANOTHER ROOM AND APPROACHED A LARGE
WINDOW OVERLOOKING THE SEA, AND HE SAYS THE SIGHT OF THE WAVES BREAKING
UPON THE ROCKS SOME THIRTY-FIVE FEET BELOW INTRIGUED HIM.  THE FRENCH
DOORS OF THIS WINDOW EXTENDED TO THE LEVEL OF THE FLOOR AND HE OBSERVED
A SORT OF WHOLLY UNPROTECTED LEDGE OR BALCONY, WHICH EXTENDED OUT FROM
THE BUILDING SOME TWO AND A HALF OR THREE FEET.  THERE WAS NO RAILING
OF ANY SORT AND THE SLIGHTEST MISSTEP OR UNSTEADINESS WAS ALMOST SURE
TO PRECIPITATE LIBELLANT.  IN ANY EVENT, IT WAS A PERILOUS UNDERTAKING
TO GO OUT UPON THIS BALCONY AND ONE EVEN MORE PERILOUS TO LEAN OVER THE
EDGE TO GET A BETTER VIEW OF THE ROCKS AND WAVES IMMEDIATELY BELOW. 
BUT THIS IS WHAT LIBELLANT DID.  WHEN HE CAME TO A POSITION WHERE THE
TOES OF HIS SHOES WERE SIX INCHES FROM THE EDGE, HE LEANED OVER, AT THE
SAME TIME TAKING HOLD OF A ROD ABOUT ONE-HALF INCH IN CIRCUMFERENCE,
WHICH WAS APPARENTLY AFFIXED TO THE BUILDING TO HIS RIGHT.  HE MERELY
TOOK A CASUAL GLANCE AT THIS ROD AND MAKES NO CLAIM TO HAVE DONE MORE. 
IT LOOKED LIKE A 'LIGHTNING ARRESTER OR SOMETHING OF THAT TYPE.' 
WHETHER THE FASTENINGS SUCH AS THEY WERE HAD BEEN WEAKENED BY BOMBS AND
SHELL FIRE, WHICH HAD OTHERWISE MARKED THE BUILDINGS IN THE VICINITY TO
SOME EXTENT, DOES NOT APPEAR.  NOR DOES THE TESTIMONY DISCLOSE THE
PURPOSE WHICH THIS ROD SERVED.  AS HE GRASPED IT, AND LEANED OVER THE
EDGE, THE ROD CAME OFF AND LIBELLANT LOST HIS BALANCE AND FELL.  A
SIMILAR LEDGE OR BALCONY ON ONE OF THE WINDOWS BELOW BROKE HIS FALL OR
HE WOULD HAVE SUSTAINED INJURIES FAR MORE SERIOUS THAN A BROKEN LEG. 
THIS FALL AND ITS CONSEQUENCES ARE THE BASIS FOR HIS SUIT FOR
MAINTENANCE AND CURE."  75 F.SUPP.  210, 213. 

THE DISTRICT JUDGE CONCLUDED THAT LIBELLANT HAD NOT ACTED "IN
RECKLESS DISREGARD OF SAFETY."  75 F.SUPP.  AT 216.  THE COURT OF
APPEALS FOR THE SECOND CIRCUIT UNANIMOUSLY REVERSED.  IT THOUGHT THAT 

"IN THE CASE AT BAR, THE RISK OF SERIOUS INJURY OR EVEN DEATH IF THE
SEAMAN SHOULD FALL OVER THE CLIFF, WAS OBVIOUS; AND THE REQUISITE
DEGREE OF CARE CORRESPONDINGLY HIGHER.  IN THE FACE OF EVIDENT DANGER,
THE CARE WHICH WARREN TOOK WAS VERY SLIGHT - A MERE CASUAL GLANCE AT
THE ROD WHICH HE THOUGHT TO BE A 'LIGHTNING ARRESTER OR SOMETHING OF
THAT TYPE.'  WE THINK THAT A MAN WHO ACTS AS HE DID UNDER CIRCUMSTANCES
OF DANGER DOES NOT SHOW EVEN A MINIMAL DEGREE OF REGARD FOR THE
CONSEQUENCES OF HIS ACT.  UNLESS HIS SHIP IS TO BE AN INSURER OF HIS
SAFETY, HE CANNOT RECOVER AGAINST HER."  179 F.2D 919, 922. 

I DO NOT THINK THE JUDGMENT OF THE COURT OF APPEALS THAT THE
LIBELLANT'S CONDUCT WAS A "DELIBERATE ACT OF INDISCRETION," AGUILAR V.
STANDARD OIL CO., 318 U.S. 724, 731, SHOULD BE DISTURBED. 
..END :






NORTON CO. V. DEPT. OF REVENUE, 340 U.S. 534 


NO. 133.  ARGUED DECEMBER 6, 1950.  - DECIDED FEBRUARY 26, 1951.  - 405
ILL. 314, 90 N.E.2D 737, JUDGMENT VACATED AND REMANDED. 


UNDER THE ILLINOIS RETAILERS' OCCUPATION TAX ACT OF JUNE 28, 1933,
ILLINOIS LEVIED A TAX ON THE GROSS RECEIPTS FROM ALL SALES TO PERSONS
IN ILLINOIS BY PETITIONER, A MASSACHUSETTS CORPORATION WITH ITS FACTORY
AND HEAD OFFICE IN MASSACHUSETTS AND A BRANCH OFFICE IN CHICAGO.  AT
PETITIONER'S HEAD OFFICE ARE ITS GENERAL MANAGEMENT, ACCOUNTING, AND
CREDIT OFFICES, WHERE IT ACCEPTS ALL DIRECT MAIL ORDERS AND ORDERS
FORWARDED BY ITS CHICAGO OFFICE.  THE CHICAGO OFFICE MAKES LOCAL SALES
AT RETAIL FROM A LIMITED INVENTORY CARRIED THERE, RECEIVES ORDERS AND
FORWARDS THEM TO THE HEAD OFFICE FOR ACTION THERE, AND ACTS AS AN
INTERMEDIARY TO REDUCE FREIGHT CHARGES ON GOODS SHIPPED FROM THE HEAD
OFFICE.  THE SUPREME COURT OF ILLINOIS FOUND THAT THE PRESENCE OF
PETITIONER'S LOCAL RETAIL OUTLET, IN THE CIRCUMSTANCES OF THIS CASE,
WAS SUFFICIENT TO ATTRIBUTE ALL INCOME DERIVED FROM ILLINOIS SALES TO
THAT OUTLET AND RENDER IT TAXABLE.  HELD:  THE TAX IS SUSTAINED ON ALL
SALES TO ILLINOIS CUSTOMERS, EXCEPT ON ORDERS SENT DIRECTLY BY THE
CUSTOMERS TO THE HEAD OFFICE AND SHIPPED DIRECTLY TO THE CUSTOMERS FROM
THE HEAD OFFICE.  PP. 535-539. 

1.  WHEN A FOREIGN CORPORATION HAS GONE INTO A STATE TO DO LOCAL
BUSINESS BY STATE PERMISSION AND HAS SUBMITTED ITSELF TO THE TAXING
POWER OF THE STATE, IT CAN AVOID TAXATION ON SOME SALES TO PERSONS IN
THAT STATE ONLY BY SUSTAINING THE BURDEN OF SHOWING THAT PARTICULAR
TRANSACTIONS ARE DISASSOCIATED FROM THE LOCAL BUSINESS AND INTERSTATE
IN NATURE.  P. 537. 

2. BY SUBMITTING ITSELF TO THE TAXING POWER OF THE STATE, IT LIKEWISE
SUBMITS ITSELF TO THE STATE'S JUDICIAL POWER TO CONSTRUE AND APPLY ITS
TAX LAWS, INSOFAR AS IT KEEPS WITHIN CONSTITUTIONAL BOUNDS.  P. 538. 

3.  IN THE LIGHT OF ALL THE EVIDENCE, THE JUDGMENT OF THE ILLINOIS
COURT ATTRIBUTING TO PETITIONER'S CHICAGO BRANCH INCOME FROM ALL SALES
THAT UTILIZED IT EITHER IN RECEIVING THE ORDERS OR DISTRIBUTING THE
GOODS WAS WITHIN THE REALM OF PERMISSIBLE JUDGMENT.  PP. 538-539. 

4.  THE ONLY TRANSACTIONS HERE INVOLVED THAT ARE SO CLEARLY
INTERSTATE IN CHARACTER THAT THE STATE COULD NOT REASONABLY ATTRIBUTE
THEIR PROCEEDS TO THE LOCAL BUSINESS ARE ORDERS SENT DIRECTLY TO ITS
HEAD OFFICE BY THE CUSTOMERS AND SHIPPED DIRECTLY TO THE CUSTOMERS FROM
THE HEAD OFFICE; AND SUCH TRANSACTIONS ARE NOT SUBJECT TO THIS TAX.  P.
539. 

NORTON COMPANY V. DEPARTMENT OF REVENUE OF ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

THE SUPREME COURT OF ILLINOIS SUSTAINED A STATE TAX ON THE GROSS
RECEIPTS FROM ALL SALES BY PETITIONER TO PERSONS IN ILLINOIS.  405 ILL.
314, 90 N.E.2D 737.  THIS COURT GRANTED CERTIORARI.  340 U.S. 807. 
JUDGMENT VACATED AND CAUSE REMANDED, P. 539. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A MASSACHUSETTS CORPORATION, MANUFACTURES AND SELLS
ABRASIVE MACHINES AND SUPPLIES.  UNDER CONSENT FROM THE STATE OF
ILLINOIS TO DO BUSINESS THEREIN, IT OPERATES A BRANCH OFFICE AND
WAREHOUSE IN CHICAGO FROM WHICH IT MAKES LOCAL SALES AT RETAIL.  THESE
SALES ADMITTEDLY SUBJECT IT TO AN ILLINOIS OCCUPATION TAX "UPON PERSONS
ENGAGED IN THE BUSINESS OF SELLING TANGIBLE PERSONAL PROPERTY AT RETAIL
IN THIS STATE."  THE BASE FOR COMPUTATION OF THE TAX IS GROSS
RECEIPTS.  ILL. REV. STAT., 1949, C. 120, SEC. 441. 

NOT ALL OF PETITIONER'S SALES TO ILLINOIS CUSTOMERS ARE OVER-THE
COUNTER, BUT THE STATE HAS COLLECTED, UNDER PROTEST, THE TAX ON THE
ENTIRE GROSS INCOME OF THIS COMPANY FROM SALES TO ITS INHABITANTS.  THE
STATUTE SPECIFICALLY EXEMPTS "BUSINESS IN INTERSTATE COMMERCE" AS
REQUIRED BY THE CONSTITUTION, AND THE QUESTION IS WHETHER THE STATE HAS
EXCEEDED THE CONSTITUTIONAL RANGE OF ITS TAXING POWER BY TAXING ALL OF
PETITIONER'S ILLINOIS DERIVED INCOME. 

IN WORCESTER, MASSACHUSETTS, PETITIONER MANUFACTURES SOME 225,000
ITEMS, 18,000 OF WHICH IT USUALLY CARRIES IN STOCK.  THERE ARE ITS
GENERAL MANAGEMENT, ACCOUNTING, AND CREDIT OFFICES, WHERE IT ACCEPTS OR
REJECTS ALL DIRECT MAIL ORDERS AND ORDERS FORWARDED BY ITS CHICAGO
OFFICE.  IF AN ORDER CALLS FOR SPECIALLY BUILT MACHINES, IT IS THERE
STUDIED AND ACCEPTED OR REJECTED.  ORDERS ARE FILLED BY SHIPMENT F.O.B.
WORCESTER EITHER DIRECTLY TO THE CUSTOMER OR VIA THE CHICAGO OFFICE. 

THE CHICAGO PLACE OF BUSINESS PERFORMS SEVERAL FUNCTIONS.  IT CARRIES
AN INVENTORY OF ABOUT 3,000 MOST FREQUENTLY PURCHASED ITEMS.  FROM
THESE IT SERVES CASH CUSTOMERS AND THOSE WHOSE CREDIT THE HOME OFFICE
HAS APPROVED, BY CONSUMMATING DIRECT SALES.  INCOME FROM THESE SALES
PETITIONER ADMITS TO BE CONSTITUTIONALLY TAXABLE.  BUT THIS OFFICE ALSO
PERFORMS USEFUL FUNCTIONS FOR OTHER CLASSES OF CUSTOMERS.  FOR THOSE OF
NO ESTABLISHED CREDIT, THOSE WHO ORDER ITEMS NOT IN LOCAL STOCK, AND
THOSE WHO WANT SPECIAL EQUIPMENT, IT RECEIVES THEIR ORDER AND FORWARDS
IT TO THE HOME OFFICE FOR ACTION THERE.  FOR MANY OF THESE ILLINOIS
CUSTOMERS IT ALSO ACTS AS AN INTERMEDIARY TO REDUCE FREIGHT CHARGES. 
WORCESTER PACKAGES AND MARKS EACH CUSTOMER'S GOODS BUT ACCUMULATES THEM
UNTIL A CARLOAD LOT CAN BE CONSIGNED TO THE CHICAGO OFFICE.  CHICAGO
BREAKS THE CARLOAD AND RECONSIGNS THE SEPARATE ORDERS IN THEIR ORIGINAL
PACKAGE TO CUSTOMERS.  THE CHICAGO OFFICE THUS INTERVENES BETWEEN
VENDOR AND ILLINOIS VENDEES AND PERFORMS SERVICE HELPFUL TO
PETITIONER'S COMPETITION FOR THAT TRADE IN ALL ILLINOIS SALES EXCEPT
WHEN THE BUYER ORDERS DIRECTLY FROM WORCESTER, AND THE GOODS ARE
SHIPPED FROM THERE DIRECTLY TO THE BUYER. 

THE ILLINOIS SUPREME COURT RECOGNIZED THAT IT WAS DEALING WITH
INTERSTATE COMMERCE.  IT REITERATED ITS FORMER HOLDINGS "THAT THERE
COULD BE NO TAX ON SOLICITATION OF ORDERS ONLY" IN THE STATE.  FN1  BUT
NO SOLICITORS WORK THE TERRITORY OUT OF EITHER THE HOME OFFICE OR THE
CHICAGO BRANCH, ALTHOUGH PETITIONER WILL SUPPLY ENGINEERING AND
TECHNICAL ADVICE.  THE ILLINOIS COURT HELD THAT THE PRESENCE OF
PETITIONER'S LOCAL RETAIL OUTLET, IN THE CIRCUMSTANCES OF THIS CASE,
WAS SUFFICIENT TO ATTRIBUTE ALL INCOME DERIVED FROM ILLINOIS SALES TO
THAT OUTLET AND RENDER IT ALL TAXABLE. 

WHERE A CORPORATION CHOOSES TO STAY AT HOME IN ALL RESPECTS EXCEPT TO
SEND ABROAD ADVERTISING OR DRUMMERS TO SOLICIT ORDERS WHICH ARE SENT
DIRECTLY TO THE HOME OFFICE FOR ACCEPTANCE, FILLING, AND DELIVERY BACK
TO THE BUYER, IT IS OBVIOUS THAT THE STATE OF THE BUYER HAS NO LOCAL
GRIP ON THE SELLER.  UNLESS SOME LOCAL INCIDENT OCCURS SUFFICIENT TO
BRING THE TRANSACTION WITHIN ITS TAXING POWER, THE VENDOR IS NOT
TAXABLE.  MCLEOD V. DILWORTH CO., 322 U.S. 327.  OF COURSE, A STATE
IMPOSING A SALES OR USE TAX CAN MORE EASILY MEET THIS BURDEN, BECAUSE
THE IMPACT OF THOSE TAXES IS ON THE LOCAL BUYER OR USER.  CASES
INVOLVING THEM ARE NOT CONTROLLING HERE, FOR THIS TAX FALLS ON THE
VENDOR.  FN2 

BUT WHEN, AS HERE, THE CORPORATION HAS GONE INTO THE STATE TO DO
LOCAL BUSINESS BY STATE PERMISSION AND HAS SUBMITTED ITSELF TO THE
TAXING POWER OF THE STATE, IT CAN AVOID TAXATION ON SOME ILLINOIS SALES
ONLY BY SHOWING THAT PARTICULAR TRANSACTIONS ARE DISSOCIATED FROM THE
LOCAL BUSINESS AND INTERSTATE IN NATURE.  THE GENERAL RULE, APPLICABLE
HERE, IS THAT A TAXPAYER CLAIMING IMMUNITY FROM A TAX HAS THE BURDEN OF
ESTABLISHING HIS EXEMPTION.  FN3 

THIS BURDEN IS NEVER MET MERELY BY SHOWING A FAIR DIFFERENCE OF
OPINION WHICH AS AN ORIGINAL MATTER MIGHT BE DECIDED DIFFERENTLY.  THIS
CORPORATION, BY SUBMITTING ITSELF TO THE TAXING POWER OF ILLINOIS,
LIKEWISE SUBMITTED ITSELF TO ITS JUDICIAL POWER TO CONSTRUE AND APPLY
ITS TAXING STATUTE INSOFAR AS IT KEEPS WITHIN CONSTITUTIONAL BOUNDS. 
OF COURSE, IN CONSTITUTIONAL CASES, WE HAVE POWER TO EXAMINE THE WHOLE
RECORD TO ARRIVE AT AN INDEPENDENT JUDGMENT AS TO WHETHER
CONSTITUTIONAL RIGHTS HAVE BEEN INVADED, BUT THAT DOES NOT MEAN THAT WE
WILL RE-EXAMINE, AS A COURT OF FIRST INSTANCE, FINDINGS OF FACT
SUPPORTED BY SUBSTANTIAL EVIDENCE.  FN4 

THIS CORPORATION HAS SO MINGLED TAXABLE BUSINESS WITH THAT WHICH IT
CONTENDS IS NOT TAXABLE THAT IT REQUIRES ADMINISTRATIVE AND JUDICIAL
JUDGMENT TO SEPARATE THE TWO.  WE CONCLUDE THAT, IN THE LIGHT OF ALL
THE EVIDENCE, THE JUDGMENT ATTRIBUTING TO THE CHICAGO BRANCH INCOME
FROM ALL SALES THAT UTILIZED IT EITHER IN RECEIVING THE ORDERS OR
DISTRIBUTING THE GOODS WAS WITHIN THE REALM OF PERMISSIBLE JUDGMENT. 
PETITIONER HAS NOT ESTABLISHED THAT SUCH SERVICES AS WERE RENDERED BY
THE CHICAGO OFFICE WERE NOT DECISIVE FACTORS IN ESTABLISHING AND
HOLDING THIS MARKET.  ON THIS RECORD, NO OTHER SOURCE OF THE CUSTOMER
RELATIONSHIP IS SHOWN. 

THIS CORPORATION COULD HAVE APPROACHED THE ILLINOIS MARKET THROUGH
SOLICITORS ONLY AND IT WOULD HAVE BEEN ENTITLED TO THE IMMUNITY OF
INTERSTATE COMMERCE AS SET OUT IN THE DILWORTH CASE.  BUT, FROM A
COMPETITIVE POINT OF VIEW, THAT SYSTEM HAS DISADVANTAGES.  THE TRADE
MAY VIEW THE SELLER AS REMOTE AND INACCESSIBLE.  HE CANNOT BE REACHED
WITH PROCESS OF LOCAL COURTS FOR BREACH OF CONTRACT, OR FOR SERVICE IF
THE GOODS ARE DEFECTIVE OR IN NEED OF REPLACEMENT.  PETITIONER ELECTED
TO LOCALIZE ITSELF IN THE ILLINOIS MARKET WITH THE ADVANTAGES OF A
RETAIL OUTLET IN THE STATE, TO KEEP CLOSE TO THE TRADE, TO SUPPLY
LOCALLY MANY ITEMS AND TAKE ORDERS FOR OTHERS, AND TO REDUCE FREIGHT
COSTS TO LOCAL CONSUMERS.  ALTHOUGH THE CONCERN DOES NOT, BY ENGAGING
IN BUSINESS WITHIN THE STATE, LOSE ITS RIGHT TO DO INTERSTATE BUSINESS
WITH TAX IMMUNITY, COONEY V. MOUNTAIN STATES TELEGRAPH CO., 294 U.S.
384, IT CANNOT CHANNEL BUSINESS THROUGH A LOCAL OUTLET TO GAIN THE
ADVANTAGE OF A LOCAL BUSINESS AND ALSO HOLD THE IMMUNITIES OF AN
INTERSTATE BUSINESS. 

THE ONLY ITEMS THAT ARE SO CLEARLY INTERSTATE IN CHARACTER THAT THE
STATE COULD NOT REASONABLY ATTRIBUTE THEIR PROCEEDS TO THE LOCAL
BUSINESS ARE ORDERS SENT DIRECTLY TO WORCESTER BY THE CUSTOMER AND
SHIPPED DIRECTLY TO THE CUSTOMER FROM WORCESTER.  INCOME FROM THOSE WE
THINK WAS NOT SUBJECT TO THIS TAX. 

THE JUDGMENT BELOW IS VACATED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT HEREWITH.  IT IS SO ORDERED. 

FN1  405 ILL. 314, 320, 90 N.E.2D 737, 741. 

FN2  CF. NELSON V. MONTGOMERY WARD & CO., 312 U.S. 373; NELSON V.
SEARS, ROEBUCK & CO., 312 U.S. 359; MCGOLDRICK V. BERWIND-WHITE CO.,
309 U.S. 33; MCLEOD V. DILWORTH CO., SUPRA. 

FN3  COMPANIA GENERAL V. COLLECTOR, 279 U.S. 306, 310; NEW YORK EX
REL. COHN V. GRAVES, 300 U.S. 308, 316. 

FN4  MERCHANTS' NATIONAL BANK V. RICHMOND, 256 U.S. 635, 638; CARLSON
V. CURTISS, 234 U.S. 103, 106. 

MR. JUSTICE REED, DISSENTING IN PART. 

MR. JUSTICE REED CONCURS WITH THE COURT'S OPINION AND JUDGMENT EXCEPT
AS IT PERMITS ILLINOIS TO USE AS A BASE FOR THE TAX COMPUTATION
PETITIONER'S SALES, CONSUMMATED IN MASSACHUSETTS BY THE ACCEPTANCE OF
ORDERS FORWARDED TO PETITIONER THERE BY ITS ILLINOIS BRANCH OFFICE,
FILLED IN MASSACHUSETTS, AND SHIPPED FROM MASSACHUSETTS DIRECTLY, AND
NOT BY TRANSHIPMENT THROUGH THE ILLINOIS BRANCH, TO THE BUYER.  IN
THOSE SALES TITLE PASSES TO BUYER IN MASSACHUSETTS.  ILLINOIS CONCEDES
IN ITS BRIEF THE ABOVE FACTS AS TO THIS CLASS OF SALES.  FROM THOSE
FACTS I CONCLUDE THAT, NOTHING ELSE APPEARING, THE SHIPMENT WAS AT THE
BUYER'S COST AND RISK. 

THE ILLINOIS STATUTE RECOGNIZES THAT INTERSTATE BUSINESS IS NOT TO BE
TAXED.  THE TRANSACTIONS DESCRIBED ABOVE ARE INTERSTATE BUSINESS. 

THE PULL TO PERMIT EACH STATE TO MEASURE ITS TAX BY GROSS RECEIPTS
FROM ALL SALES WITH SOME SLIGHT RELATION TO THE TAXING STATE IS
STRONG.  THE CONSTITUTION, HOWEVER, PUTS THE REGULATION OF INTERSTATE
COMMERCE IN THE HANDS OF THE FEDERAL GOVERNMENT.  WE HAVE GONE FAR IN
INTERPRETATION OF THE CONSTITUTION TO ALLOW A STATE TO COLLECT TAX
MONEY, BUT IN VIEW OF THE DELEGATION TO THE FEDERAL GOVERNMENT OF THE
POWER OVER COMMERCE CARRIED ON IN MORE THAN ONE STATE, WE SHOULD
PRESERVE INTERSTATE COMMERCE ITSELF FROM TAXES LEVIED ON IT DIRECTLY OR
ON THE UNAPPORTIONED GROSS RECEIPTS OF THAT COMMERCE.  GREYHOUND LINES
V. MEALEY, 334 U.S. 653; JOSEPH V. CARTER & WEEKES STEVEDORING CO., 330
U.S. 422; INTERSTATE PIPE LINE CO. V. STONE, DISSENT, 337 U.S. 662,
676. 

OUR CLOSEST APPROACH TO THE TAX ON THE ABOVE INTERSTATE BUSINESS WAS
THE TAX ON DUGRENIER, INC., IN MCGOLDRICK V. FELT & TARRANT MFG. CO.,
309 U.S. 70, 77.  DESPITE MARKED DIFFERENCES BETWEEN THE DUGRENIER
TRANSACTIONS AND ALL OTHERS CONSIDERED IN MCGOLDRICK V. BERWIND-WHITE
CO., 309 U.S. 33, WITHOUT ANALYSIS OF THE EFFECT OF THOSE DIFFERENCES
AND IN RELIANCE UPON THE FACT THAT "POSSESSION" WAS TRANSFERRED IN NEW
YORK FROM THE TRANSPORTATION COMPANY TO THE BUYER, WE UPHELD THE TAX. 
IF BY THE LANGUAGE USED IT WAS MEANT TO SAY THAT THE SELLER DELIVERED
THE GOODS TO THE BUYER, THE TRANSACTIONS WERE, AS WE SAID, "CONTROLLED"
BY BERWIND-WHITE. 

A FEW YEARS LATER, HOWEVER, IN MCLEOD V. DILWORTH CO., 322 U.S. 327,
AN OPINION IN WHICH THE WRITER OF THE DUGRENIER OPINION, CHIEF JUSTICE
STONE, JOINED, WE MADE IT CLEAR THAT A TAX CANNOT BE COLLECTED BY THE
BUYER'S STATE ON ORDERS SOLICITED IN ONE STATE, ACCEPTED IN ANOTHER,
AND SHIPPED AT THE PURCHASER'S RISK.  THAT LATER CLARIFYING HOLDING
SEEMS TO ME TO STATE THE TRUE RULE APPLICABLE HERE.  I CAN SEE NO
DIFFERENCE, CONSTITUTIONALLY, BETWEEN SOLICITATION BY SALESMEN IN A
BRANCH OFFICE OR ON THE ROAD.  SUCH SALES, CONSUMMATED BY DIRECT
SHIPMENT TO ILLINOIS BUYERS FROM OUT OF THE STATE ARE INTERSTATE
BUSINESS AND FREE OF THE TAX ILLINOIS HAS LEVIED.  SO FAR AS THE
SUPREME COURT OF ILLINOIS HOLDS THOSE TRANSACTIONS TAXABLE, IT SHOULD
BE REVERSED. 

MR. JUSTICE CLARK, DISSENTING IN PART. 

I BELIEVE THE RESPONDENT REASONABLY ATTRIBUTED ALL OF THE PROCEEDS OF
PETITIONER'S SALES IN ILLINOIS TO THE COMPANY'S LOCAL ACTIVITIES.  I
THEREFORE AGREE WITH THE ILLINOIS SUPREME COURT THAT UNDER THE
CIRCUMSTANCES SHIPMENTS SENT DIRECTLY TO ILLINOIS CUSTOMERS ON ORDERS
SENT DIRECTLY TO WORCESTER WERE SUBJECT TO THE TAX. 

AS THE COURT POINTS OUT, PETITIONER CAN AVOID TAXATION ON ITS DIRECT
SALES ONLY "BY SHOWING THAT ...  (THEY) ARE DISSOCIATED FROM THE LOCAL
BUSINESS AND (ARE) INTERSTATE IN NATURE.  THE GENERAL RULE, APPLICABLE
HERE, IS THAT A TAXPAYER CLAIMING IMMUNITY FROM A TAX HAS THE BURDEN OF
ESTABLISHING HIS EXEMPTION."  PETITIONER HAS FAILED TO MEET THIS
BURDEN.  IN FACT ILLINOIS HAS SHOWN THAT PETITIONER'S CHICAGO OFFICE IS
ITS ONLY SOURCE OF CUSTOMER RELATIONSHIP IN ILLINOIS; THAT THE CHICAGO
OFFICE PROVIDES THE SOLE MEANS THROUGH WHICH PETITIONER CAN BE REACHED
WITH PROCESS BY ILLINOIS COURTS IN THE EVENT A CUSTOMER IS AGGRIEVED;
THAT THE LOCAL OFFICE AFFORDS SERVICE TO MACHINES AFTER SALE, AS WELL
AS REPLACEMENT OF MACHINES WHICH ARE DEFECTIVE; THAT IT STANDS READY TO
RECEIVE COMPLAINTS AND TO OFFER ENGINEERING AND TECHNICAL ADVICE; AND
THAT THESE MULTITUDINOUS ACTIVITIES GIVE TO PETITIONER A LOCAL
CHARACTER WHICH IS MOST HELPFUL IN ALL ITS ILLINOIS OPERATIONS.  SURELY
THE COURT'S CONCLUSION, THAT "PETITIONER HAS NOT ESTABLISHED THAT SUCH
SERVICES AS WERE RENDERED BY THE CHICAGO OFFICE WERE NOT DECISIVE
FACTORS IN ESTABLISHING AND HOLDING THIS MARKET," APPLIES WITH EQUAL
VALIDITY TO THE DIRECT SALES. 

IN MAINTAINING A LOCAL ESTABLISHMENT OF SUCH MAGNITUDE, PETITIONER
HAS ADOPTED THE LABEL OF A HOME-TOWN MERCHANT.  AFTER IT HAS RECEIVED
THE MANIFOLD ADVANTAGES OF THAT LABEL, WE SHOULD NOT GIVE OUR SANCTION
TO ITS CLAIM MADE AT TAXPAYING TIME THAT WITH RESPECT TO DIRECT SALES
IT IS ONLY AN ITINERANT DRUMMER.  FOR THE FOREGOING AND OTHER REASONS
WHICH NEED NOT BE STATED, I WOULD AFFIRM IN ITS ENTIRETY THE JUDGMENT
BELOW.    MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS JOIN IN THIS
OPINION. 
..END :














UNITED STATES V. YELLOW CAB CO., 340 U.S. 543 


ARGUED DECEMBER 6, 1950.  - DECIDED FEBRUARY 26, 1951.  - 181 F.2D 967,
AFFIRMED.  - 87 U.S. APP. D.C. - , 183 F.2D 825, REVERSED. 


THE FEDERAL TORT CLAIMS ACT EMPOWERS A UNITED STATES DISTRICT COURT TO
REQUIRE THE UNITED STATES TO BE IMPLEADED AS A THIRD-PARTY DEFENDANT
AND TO ANSWER THE CLAIM OF A JOINT TORT-FEASOR FOR CONTRIBUTION AS IF
THE UNITED STATES WERE A PRIVATE INDIVIDUAL.  PP. 544-557. 

1.  THE GOVERNMENT HAS CONSENTED TO BE SUED FOR CONTRIBUTION CLAIMED
BY A JOINT TORT-FEASOR IN THE CIRCUMSTANCES OF THESE CASES.  PP. 546
552. 

2.  THE FEDERAL TORT CLAIMS ACT CARRIES THE GOVERNMENT'S CONSENT TO
BE SUED FOR CONTRIBUTION CLAIMED BY A JOINT TORT-FEASOR, NOT ONLY IN A
SEPARATE PROCEEDING BUT ALSO AS A THIRD-PARTY DEFENDANT.  PP. 552-557. 

3.  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE ACT
REQUIRES CLAIMS AGAINST THE UNITED STATES TO BE TRIED WITHOUT A JURY,
WHEREAS THE SEVENTH AMENDMENT TO THE CONSTITUTION PRESERVES TO PRIVATE
INDIVIDUALS THEIR RIGHT OF TRIAL BY JURY ON SUCH CLAIMS IN A FEDERAL
COURT.  PP. 555-557. 

UNITED STATES V. YELLOW CAB CO. 

NO. 218.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT* . 

*TOGETHER WITH NO. 204, CAPITAL TRANSIT CO. V. UNITED STATES, ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE CASES ARE STATED IN THE OPINION.  THE JUDGMENT IN NO. 218 IS
AFFIRMED AND THAT IN NO. 204 IS REVERSED, P. 557. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER THE FEDERAL TORT CLAIMS ACT  FN1
EMPOWERS A UNITED STATES DISTRICT COURT TO REQUIRE THE UNITED STATES TO
BE IMPLEADED AS A THIRD-PARTY DEFENDANT AND TO ANSWER THE CLAIM OF A
JOINT TORT-FEASOR FOR CONTRIBUTION AS IF THE UNITED STATES WERE A
PRIVATE INDIVIDUAL.  FOR THE REASONS HEREINAFTER STATED, WE HOLD THAT
IT DOES. 

                    NO. 218 - YELLOW CAB CASE. 

DECEMBER 1, 1946, IN PHILADELPHIA, PENNSYLVANIA, FOUR PASSENGERS IN A
TAXICAB WERE INJURED BY A COLLISION BETWEEN THE CAB AND A UNITED STATES
MAIL TRUCK.  CLAIMING DIVERSITY OF CITIZENSHIP AND CHARGING NEGLIGENCE
ON THE PART OF THE CAB DRIVER, THEY SUED HIS EMPLOYER, THE YELLOW CAB
COMPANY, IN THE UNITED STATES DISTRICT COURT.  BY LEAVE OF COURT, THE
COMPANY IMPLEADED THE UNITED STATES AS A THIRD-PARTY DEFENDANT AND
CHARGED THAT THE NEGLIGENCE OF THE MAIL TRUCK DRIVER MADE THE UNITED
STATES LIABLE FOR ALL OR PART OF THE PASSENGERS' CLAIMS AGAINST THE
COMPANY.  THE UNITED STATES MOVED FOR ITS DISMISSAL AS A THIRD-PARTY
DEFENDANT ON THE GROUND THAT THE FEDERAL TORT CLAIMS ACT DOES NOT
AUTHORIZE SUITS AGAINST IT ON DERIVATIVE CLAIMS.  THE MOTIONS WERE
DENIED.  THE COURT TRIED THE CASES TOGETHER, WITHOUT A JURY, AND
RENDERED JUDGMENTS AGAINST THE COMPANY TOTALING $7,800, BUT IN FAVOR OF
THE COMPANY AGAINST THE UNITED STATES FOR ONE-HALF OF THE SEVERAL
AMOUNTS AWARDED THE PASSENGERS.  MOTIONS BY THE UNITED STATES TO SET
ASIDE THE JUDGMENTS AGAINST IT WERE DENIED AND THE COURT OF APPEALS FOR
THE THIRD CIRCUIT AFFIRMED THOSE DENIALS.  HOWEY V. YELLOW CAB CO., 181
F.2D 967.  ON PETITION OF THE UNITED STATES, WE GRANTED CERTIORARI
AFTER THE CAPITAL TRANSIT CASE, INFRA, HAD BEEN DECIDED THE OTHER WAY. 
340 U.S. 809. 

                  NO. 204 - CAPITAL TRANSIT CASE. 

AUGUST 4, 1947, IN THE DISTRICT OF COLUMBIA, A PASSENGER ON A
STREETCAR WAS INJURED BY A COLLISION BETWEEN IT AND A JEEP OPERATED BY
A UNITED STATES SOLDIER ACTING WITHIN THE SCOPE OF HIS DUTIES.  THE
PASSENGER, CHARGING NEGLIGENCE, SUED THE CAPITAL TRANSIT COMPANY IN THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  BY LEAVE OF COURT, THE
COMPANY IMPLEADED THE UNITED STATES AS A THIRD-PARTY DEFENDANT,
CHARGING THAT THE SOLDIER'S NEGLIGENCE WAS THE SOLE OR A CONTRIBUTING
CAUSE OF THE COLLISION AND ASKING JUDGMENT AGAINST THE UNITED STATES
FOR A CONTRIBUTABLE PORTION OF ANY SUM WHICH MIGHT BE AWARDED AGAINST
THE COMPANY IN FAVOR OF THE PASSENGER.  IN RESPONSE TO MOTIONS BY THE
UNITED STATES, THE COURT ENTERED A FINAL JUDGMENT DISMISSING THE THIRD
PARTY COMPLAINT ON THE GROUND THAT IT FAILED TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED AGAINST THE UNITED STATES.  STRADLEY V.
CAPITAL TRANSIT CO., 87 F.SUPP.  94.  THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT AFFIRMED.  87 U.S. APP. D.C. - , 183 F.2D
825.  IT REVIEWED THE OPINION IN HOWEY V. YELLOW CAB, SUPRA, AND
DISAGREED WITH IT.  SEE ALSO, SAPPINGTON V. BARRETT, 86 U.S. APP. D.C.
334, 182 F.2D 102.  ON PETITION OF THE COMPANY, WE GRANTED CERTIORARI
BECAUSE OF THE CONFLICT OF DECISIONS AND THE IMPORTANCE OF THE ISSUE IN
THE APPLICATION OF THE FEDERAL TORT CLAIMS ACT.  340 U.S. 808. 

THE GOVERNMENT HAS CONSENTED TO BE SUED FOR

           CONTRIBUTION. 

IN THE YELLOW CAB CASE THE COURT BELOW CONCLUDED THAT UNDER THE LAW
OF PENNSYLVANIA A PRIVATE INDIVIDUAL WOULD BE LIABLE TO HIS JOINT TORT
FEASOR FOR CONTRIBUTION,  FN2  AND THAT THE UNITED STATES, THROUGH THE
FEDERAL TORT CLAIMS ACT, HAD CONSENTED TO BE SUED AND WOULD BE LIABLE,
UNDER THE SAME CIRCUMSTANCES, IN THE SAME MANNER AND TO THE SAME
EXTENT.  IN THE CAPITAL TRANSIT CASE, WHILE THE COURT BELOW HELD THAT
THE UNITED STATES COULD NOT BE IMPLEADED AS A THIRD-PARTY DEFENDANT, IT
REFRAINED FROM DECIDING WHETHER, IN A SEPARATE ACTION, THE COMPANY
MIGHT ENFORCE A RIGHT TO CONTRIBUTION AGAINST THE UNITED STATES. 
ACCORDINGLY, ALTHOUGH THE COURT AFFIRMED THE DISMISSAL OF THE THIRD
PARTY COMPLAINT AGAINST THE UNITED STATES, IT DID SO WITHOUT PREJUDICE
TO THE MAINTENANCE OF A SEPARATE ACTION FOR CONTRIBUTION BY THE JOINT
TORT-FEASOR.  87 U.S. APP. D.C. AT - , 183 F.2D AT 830.  FN3 

THE GOVERNMENT NOW CONTENDS, IN BOTH CASES, THAT IT HAS NOT CONSENTED
TO BE SUED FOR CONTRIBUTION CLAIMED BY A JOINT TORT-FEASOR, EVEN IN A
SEPARATE ACTION.  WE THEREFORE DISCUSS THAT ISSUE FIRST. 

THE FEDERAL TORT CLAIMS ACT WAIVES THE GOVERNMENT'S IMMUNITY FROM
SUIT IN SWEEPING LANGUAGE.  FN4  IT UNQUESTIONABLY WAIVES IT IN FAVOR
OF AN INJURED PERSON.  IT DOES THE SAME FOR AN INSURER WHOSE CLAIM HAS
BEEN SUBROGATED TO HIS.  UNITED STATES V. AETNA SURETY CO., 338 U.S.
366.  THE ISSUE HERE IS WHETHER THE ACT ALSO COVERS CLAIMS FOR
CONTRIBUTION WHICH WOULD BE DUE FROM THE GOVERNMENT IF THE GOVERNMENT
WERE A PRIVATE INDIVIDUAL. 

ON ITS FACE THE ACT AMPLY COVERS SUCH CONSENT.  SECTION 410(A) WAIVES
IMMUNITY FROM SUIT ON - 

"ANY CLAIM AGAINST THE UNITED STATES, FOR MONEY ONLY, ACCRUING ON AND
AFTER JANUARY 1, 1945, ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY OR
ON ACCOUNT OF 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
FOR SUCH DAMAGE, LOSS, INJURY, OR DEATH IN ACCORDANCE WITH THE LAW OF
THE PLACE WHERE THE ACT OR OMISSION OCCURRED.  SUBJECT TO THE
PROVISIONS OF THIS TITLE, THE UNITED STATES SHALL BE LIABLE IN RESPECT
OF SUCH CLAIMS TO THE SAME CLAIMANTS, IN THE SAME MANNER, AND TO THE
SAME EXTENT AS A PRIVATE INDIVIDUAL UNDER LIKE CIRCUMSTANCES, EXCEPT
THAT THE UNITED STATES SHALL NOT BE LIABLE FOR INTEREST PRIOR TO
JUDGMENT, OR FOR PUNITIVE DAMAGES...."  60 STAT. 844, 28 U.S.C. (1946
ED.)  SEC.  931(A). 

THE WORDS "ANY CLAIM AGAINST THE UNITED STATES  ...  ON ACCOUNT OF
PERSONAL INJURY" ARE BROAD WORDS IN COMMON USAGE.  THEY ARE NOT WORDS
OF ART. SECTION 421 LISTS 12 CLASSES OF CLAIMS TO WHICH THE WAIVER
SHALL NOT APPLY, BUT CLAIMS FOR CONTRIBUTION ARE NOT SO LISTED.  FN5 

THIS ACT DOES NOT SUBJECT THE GOVERNMENT TO A PREVIOUSLY UNRECOGNIZED
TYPE OF OBLIGATION.  THROUGH HUNDREDS OF PRIVATE RELIEF ACTS, EACH
CONGRESS FOR MANY YEARS HAS RECOGNIZED THE GOVERNMENT'S OBLIGATION TO
PAY CLAIMS ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY OR ON ACCOUNT OF
PERSONAL INJURY OR DEATH CAUSED BY NEGLIGENT OR WRONGFUL ACTS OF
EMPLOYEES OF THE GOVERNMENT.  THIS ACT MERELY SUBSTITUTES THE DISTRICT
COURTS FOR CONGRESS AS THE AGENCY TO DETERMINE THE VALIDITY AND AMOUNT
OF THE CLAIMS.  IT SUGGESTS NO REASON FOR READING INTO IT FINE
DISTINCTIONS BETWEEN VARIOUS TYPES OF SUCH CLAIMS. 

DESPITE THE BROAD LANGUAGE OF THE ACT, THE GOVERNMENT HAS REVIEWED
ITS LEGISLATIVE HISTORY IN AN ATTEMPT TO RESTRICT ITS SCOPE.  MOST OF
THAT HISTORY RELATES TO PERIODS PRIOR TO THE 2D SESSION OF THE 79TH
CONGRESS AT WHICH THE ACT WAS PASSED.  AFTER MORE THAN 20 YEARS OF
CONSIDERATION, THE SUBJECT WAS THEN PRESENTED TO CONGRESS IN A NEW
ASPECT.  FN6  THE BILL BECAME TITLE IV OF THE LEGISLATIVE
REORGANIZATION BILL OF 1946 AT A MOMENT WHEN THE OVERWHELMING PURPOSE
OF CONGRESS WAS TO MAKE CHANGES OF PROCEDURE WHICH WOULD ENABLE IT TO
DEVOTE MORE TIME TO MAJOR PUBLIC ISSUES.  FN7  THE REPORTS AT THAT
SESSION OMITTED PREVIOUS DISCUSSIONS WHICH TENDED TO RESTRICT THE SCOPE
OF THE TORT CLAIMS BILL.  THE PROCEEDINGS EMPHASIZED THE BENEFITS TO BE
DERIVED FROM RELIEVING CONGRESS OF THE PRESSURE OF PRIVATE CLAIMS. 
RECOGNIZING SUCH A CLEARLY DEFINED BREADTH OF PURPOSE FOR THE BILL AS A
WHOLE, AND THE GENERAL TREND TOWARD INCREASING THE SCOPE OF THE WAIVER
BY THE UNITED STATES OF ITS SOVEREIGN IMMUNITY FROM SUIT, IT IS
INCONSISTENT TO WHITTLE IT DOWN BY REFINEMENTS.  FN8 

OF COURSE THERE IS NO IMMUNITY FROM SUIT BY THE GOVERNMENT TO COLLECT
CLAIMS FOR CONTRIBUTION DUE IT FROM ITS JOINT TORT-FEASORS.  THE
GOVERNMENT SHOULD BE ABLE TO ENFORCE THIS RIGHT IN A FEDERAL COURT NOT
ONLY IN A SEPARATE ACTION BUT BY IMPLEADING THE JOINT TORT-FEASOR AS A
THIRD-PARTY DEFENDANT.  SEE 3 MOORE'S FEDERAL PRACTICE (2D ED. 1948)
507, ET SEQ. IT IS FAIR THAT THIS SHOULD WORK BOTH WAYS.  HOWEVER, IF
THE ACT IS INTERPRETED AS NOW URGED BY THE GOVERNMENT, IT WOULD MEAN
THAT IF AN INJURED PARTY RECOVERED JUDGMENT AGAINST THE GOVERNMENT, THE
GOVERNMENT THEN COULD SUE ITS JOINT TORT-FEASOR FOR THE LATTER'S
CONTRIBUTORY SHARE OF THE DAMAGES (LOCAL SUBSTANTIVE LAW PERMITTING). 
ON THE OTHER HAND, IF THE INJURED PARTY RECOVERED JUDGMENT AGAINST THE
PRIVATE TORT-FEASOR, IT WOULD MEAN THAT (DESPITE LOCAL SUBSTANTIVE LAW
FAVORING CONTRIBUTORY LIABILITY) THAT INDIVIDUAL COULD NOT SUE THE
GOVERNMENT FOR THE LATTER'S CONTRIBUTORY SHARE OF THE SAME DAMAGES. 
PRESUMABLY, THE CLAIMANT WOULD BE RELEGATED TO A PRIVATE BILL FOR
LEGISLATIVE RELIEF.  SUCH A RESULT SHOULD NOT BE READ INTO THIS ACT
WITHOUT A CLEARER STATEMENT OF IT THAN APPEARS HERE. 

WE FIND, THEREFORE, THAT THE GOVERNMENT HAS CONSENTED TO BE SUED FOR
CONTRIBUTION UNDER THE CIRCUMSTANCES OF THESE CASES - AT LEAST IN A
SEPARATE ACTION.  THERE REMAINS THE QUESTION OF WHETHER THE GOVERNMENT
MAY BE IMPLEADED AS A THIRD-PARTY DEFENDANT. 

            THE GOVERNMENT HAS CONSENTED TO BE IMPLEADED AS

A THIRD-PARTY DEFENDANT IN AN ACTION FOR

CONTRIBUTION DUE A JOINT TORT-FEASOR. 

THE GOVERNMENT CONTENDS THAT, EVEN IF THE FEDERAL TORT CLAIMS ACT
CARRIES THE GOVERNMENT'S CONSENT TO BE SUED IN A SEPARATE ACTION FOR
CONTRIBUTION DUE A JOINT TORT-FEASOR, IT DOES NOT CARRY CONSENT TO BE
IMPLEADED AS A THIRD-PARTY DEFENDANT TO MEET SUCH A CLAIM. 

WE FIND NOTHING IN THE NATURE OF THE RIGHTS AND OBLIGATIONS OF JOINT
TORT-FEASORS TO REQUIRE SUCH A PROCEDURAL DISTINCTION, NOR DOES THE ACT
STATE SUCH A REQUIREMENT.  ON THE CONTRARY, THE ACT EXPRESSLY MAKES THE
FEDERAL RULES OF CIVIL PROCEDURE APPLICABLE,  FN9  AND RULE 14 PROVIDES
FOR THIRD-PARTY PRACTICE.  FN10 

THIS BRINGS THE INSTANT CASES WITHIN THE PRINCIPLE APPROVED IN UNITED
STATES V. AETNA SURETY CO., 338 U.S. 366, 383: 

"IN ARGUMENT BEFORE A NUMBER OF DISTRICT COURTS AND COURTS OF
APPEALS, THE GOVERNMENT RELIED UPON THE DOCTRINE THAT STATUTES WAIVING
SOVEREIGN IMMUNITY MUST BE STRICTLY CONSTRUED.  WE THINK THAT THE
CONGRESSIONAL ATTITUDE IN PASSING THE TORT CLAIMS ACT IS MORE
ACCURATELY REFLECTED BY JUDGE CARDOZO'S STATEMENT IN ANDERSON V. HAYES
CONSTRUCTION CO., 243 N.Y. 140, 147, 153 N.E. 28, 29-30:  'THE
EXEMPTION OF THE SOVEREIGN FROM SUIT INVOLVES HARDSHIP ENOUGH WHERE
CONSENT HAS BEEN WITHHELD.  WE ARE NOT TO ADD TO ITS RIGOR BY
REFINEMENT OF CONSTRUCTION WHERE CONSENT HAS BEEN ANNOUNCED.'" 

ONCE WE HAVE CONCLUDED THAT THE FEDERAL TORT CLAIMS ACT COVERS AN
ACTION FOR CONTRIBUTION DUE A TORT-FEASOR, WE SHOULD NOT, BY REFINEMENT
OF CONSTRUCTION, LIMIT THAT CONSENT TO CASES WHERE THE PROCEDURE IS BY
SEPARATE ACTION AND DENY IT WHERE THE SAME RELIEF IS SOUGHT IN A THIRD
PARTY ACTION.  AS APPLIED TO THE STATE OF NEW YORK, JUDGE CARDOZO SAID
IN LANGUAGE WHICH IS APT HERE: "NO SENSIBLE REASON CAN BE IMAGINED WHY
THE STATE, HAVING CONSENTED TO BE SUED, SHOULD THUS PARALYZE THE
REMEDY."  243 N.Y. AT 147, 153 N.E. AT 29.  "A SENSE OF JUSTICE HAS
BROUGHT A PROGRESSIVE RELAXATION BY LEGISLATIVE ENACTMENTS OF THE RIGOR
OF THE IMMUNITY RULE.  AS REPRESENTATIVE GOVERNMENTS ATTEMPT TO
AMELIORATE INEQUALITIES AS NECESSITIES WILL PERMIT, PREROGATIVES OF THE
GOVERNMENT YIELD TO THE NEEDS OF THE CITIZEN.  ...  WHEN AUTHORITY IS
GIVEN, IT IS LIBERALLY CONSTRUED."  UNITED STATES V. SHAW, 309 U.S.
495, 501. 

THE GOVERNMENT SUGGESTS THAT DIFFICULT PROCEDURAL PROBLEMS MAY ARISE
IN OTHER CASES IF A WAIVER OF IMMUNITY IS HELD TO EXIST IN THESE
CASES.  FOR EXAMPLE, THE ACT REQUIRES CLAIMS AGAINST THE UNITED STATES
TO BE TRIED WITHOUT A JURY AND, ALTHOUGH A JURY WAS NOT INSISTED UPON
IN THE INSTANT CASES, THE SEVENTH AMENDMENT TO THE CONSTITUTION
PRESERVES TO PRIVATE INDIVIDUALS THEIR RIGHT OF TRIAL BY JURY ON SUCH
CLAIMS IN A FEDERAL COURT.  THE GOVERNMENT ARGUES THAT THE ACT IS NOT
SUFFICIENTLY SPECIFIC TO PERMIT TWO SUCH DIFFERENT MODES OF TRIAL TO
ARISE IN THE SAME CASE. 

SUCH DIFFICULTIES ARE NOT INSURMOUNTABLE.  FN11  IF, FOR EXAMPLE, A
JURY HAD BEEN DEMANDED IN THE YELLOW CAB CASE, THE DECISION OF JURY AND
NONJURY ISSUES COULD HAVE BEEN HANDLED IN A MANNER COMPARABLE TO THAT
USED WHEN ISSUES OF LAW ARE TRIED TO A JURY AND ISSUES OF AN EQUITABLE
NATURE IN THE SAME CASE ARE TRIED BY THE COURT ALONE.  FN12  IF SPECIAL
CIRCUMSTANCES HAD DEMONSTRATED THE INADVISABILITY, IN THE FIRST
INSTANCE, OF IMPLEADING THE UNITED STATES AS A THIRD-PARTY DEFENDANT,
THE LEAVE OF COURT REQUIRED BY RULE 14 COULD HAVE BEEN DENIED.  FN13
IF, AT A LATER STAGE, THE SITUATION HAD CALLED FOR A SEPARATION OF THE
CLAIMS, THE COURT COULD HAVE ORDERED THEIR SEPARATE TRIAL.  FED. RULES
CIV. PROC., 42(B).  THE AVAILABILITY OF THIRD-PARTY PROCEDURE IS
INTENDED TO FACILITATE, NOT TO PRECLUDE, THE TRIAL OF MULTIPLE CLAIMS
WHICH OTHERWISE WOULD BE TRIABLE ONLY IN SEPARATE PROCEEDINGS.  THE
POSSIBILITY OF SUCH PROCEDURAL DIFFICULTIES IS NOT SUFFICIENT GROUND
FOR SO LIMITING THE SCOPE OF THE ACT AS TO PRECLUDE ITS APPLICATION TO
ALL CASES OF CONTRIBUTION OR EVEN TO ALL CASES OF CONTRIBUTION ARISING
UNDER THIRD-PARTY PRACTICE.  IF THE ACT DEVELOPS UNANTICIPATED
COMPLICATIONS, CONGRESS CAN THEN MEET THEM TO SUCH EXTENT AS IT MAY
DESIRE TO FIT THE DEMONSTRATED NEEDS. 

WE THEREFORE CONCLUDE THAT THE FEDERAL TORT CLAIMS ACT CARRIES THE
GOVERNMENT'S CONSENT TO BE SUED FOR CONTRIBUTION NOT ONLY IN A SEPARATE
PROCEEDING BUT ALSO AS A THIRD-PARTY DEFENDANT. 

THE YELLOW CAB CASE IS AFFIRMED.  THE CAPITAL TRANSIT CASE IS
REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS
IN CONFORMITY WITH THIS OPINION.  NO. 218, AFFIRMED.  NO. 204, REVERSED
AND REMANDED. 

FN1  TITLE IV OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT.
812, 842-847, 28 U.S.C. (1946 ED.)  SECS.  921-946.  UNDER THE REVISION
OF THE JUDICIAL CODE, EFFECTIVE SEPTEMBER 1, 1948, 62 STAT. 869, ET
SEQ., THESE PROVISIONS NOW APPEAR, WITH SLIGHT MODIFICATIONS, IN 28
U.S.C. (1946 ED., SUPP. III) SECS. 1291, 1346(B), 1402(B), 1504, 2110,
2401(B), 2402, 2411, 2412 AND 2671-2680. 

FN2  PA. LAWS 1939, NO. 376; PURDON'S PA. STAT. ANN., TIT. 12, SEC.
2081(CUM.  POCKET PART 1949); AND SEE GOLDMAN V. MITCHELL-FLETCHER CO.,
292 PA. 354, 141 A. 231; FISHER V. DIEHL, 156 PA. SUPER.  476, 482, 40
A.2D 912, 916.  FOR THE DISTRICT OF COLUMBIA, SEE KNELL V. FELTMAN, 85
U.S. APP. D.C. 22, 174 F.2D 662; GEORGE'S RADIO V. CAPITAL TRANSIT CO.,
75 U.S. APP. D.C. 187, 126 F.2D 219.  NO QUESTION HAS BEEN RAISED AS TO
THE APPLICABILITY OF THE LAW OF PENNSYLVANIA AND THAT OF THE DISTRICT
OF COLUMBIA IN THE RESPECTIVE CASES AS THE LAW UNDER WHICH THE
LIABILITY OF THE UNITED STATES IS TO BE DETERMINED IF ITS IMMUNITY FROM
SUIT HAS BEEN WAIVED. 

FN3  THE DISTRICT COURT WENT FURTHER.  IT STATED THAT IT FOUND
"NOTHING WITHIN THE LETTER OF THE STATUTE CONSTITUTING A WAIVER OF
IMMUNITY IN RESPECT OF CLAIMS AGAINST THE UNITED STATES FOR
CONTRIBUTION IN ACTIONS IN TORT."  87 F.SUPP.  AT 95. 

FN4  "SEC.  410.  (A)  SUBJECT TO THE PROVISIONS OF THIS TITLE, THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT WHEREIN THE PLAINTIFF IS
RESIDENT OR WHEREIN THE ACT OR OMISSION COMPLAINED OF OCCURRED  ...
SITTING WITHOUT A JURY, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR,
DETERMINE, AND RENDER JUDGMENT ON ANY CLAIM AGAINST THE UNITED STATES,
FOR MONEY ONLY, ACCRUING ON AND AFTER JANUARY 1, 1945, ON ACCOUNT OF
DAMAGE TO OR LOSS OF PROPERTY OR ON ACCOUNT OF 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 FOR SUCH DAMAGE, LOSS, INJURY,
OR DEATH IN ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE ACT OR
OMISSION OCCURRED.  SUBJECT TO THE PROVISIONS OF THIS TITLE, THE UNITED
STATES SHALL BE LIABLE IN RESPECT OF SUCH CLAIMS TO THE SAME CLAIMANTS,
IN THE SAME MANNER, AND TO THE SAME EXTENT AS A PRIVATE INDIVIDUAL
UNDER LIKE CIRCUMSTANCES, EXCEPT THAT THE UNITED STATES SHALL NOT BE
LIABLE FOR INTEREST PRIOR TO JUDGMENT, OR FOR PUNITIVE DAMAGES.  COSTS
SHALL BE ALLOWED IN ALL COURTS TO THE SUCCESSFUL CLAIMANT TO THE SAME
EXTENT AS IF THE UNITED STATES WERE A PRIVATE LITIGANT, EXCEPT THAT
SUCH COSTS SHALL NOT INCLUDE ATTORNEYS' FEES.  ...  "  60 STAT. 843
844, 28 U.S.C. (1946 ED.)  SEC.  931(A). 

A PROVISO AS TO DEATH CASES, INCLUDED IN THIS SECTION BY 61 STAT.
722, AS OF AUGUST 2, 1946, IS NOT MATERIAL HERE. 

EFFECTIVE SEPTEMBER 1, 1948, THE ABOVE PROVISIONS WERE REPEALED AND
THEIR SUBSTANCE, MATERIAL HERE, WAS LARGELY REENACTED IN 28 U.S.C.
(1946 ED., SUPP. III) SECS. 1346(B), 1402(B), 2402 AND 2674.  WE RELY
ON THE MEANING OF THE LANGUAGE IN THE ORIGINAL ACT AND READ THE REVISED
LANGUAGE AS CARRYING IT OUT.  INSOFAR AS THE CHANGES ARE MATERIAL HERE,
THE REVISER'S NOTE MERELY STATED THAT "MINOR CHANGES WERE MADE IN
PHRASEOLOGY."  H.R. REP. NO. 308, 80TH CONG., 1ST SESS. A123. 
FURTHERMORE, THE ACTS COMPLAINED OF IN THE INSTANT CASES OCCURRED
BEFORE THE REVISED CODE BECAME EFFECTIVE AND THE PARTIES TREAT THE
ORIGINAL LANGUAGE AS APPLICABLE.  "ANY RIGHTS OR LIABILITIES NOW
EXISTING UNDER SUCH (REPEALED) SECTIONS OR PARTS THEREOF SHALL NOT BE
AFFECTED BY THIS REPEAL."  62 STAT. 992, EFFECTIVE SEPTEMBER 1, 1948. 

FN5  "WHERE A STATUTE CONTAINS A CLEAR AND SWEEPING WAIVER OF
IMMUNITY FROM SUIT ON ALL CLAIMS WITH CERTAIN WELL DEFINED EXCEPTIONS,
RESORT TO THAT RULE (OF STRICT CONSTRUCTION) CANNOT BE HAD IN ORDER TO
ENLARGE THE EXCEPTIONS."  EMPLOYERS' FIRE INS. CO. V. UNITED STATES,
167 F.2D 655, 657.  SEE ALSO, OLD COLONY INS. CO. V. UNITED STATES, 168
F.2D 931, 933. 

THE SIGNIFICANCE OF THE FAILURE TO LIST A CLAIM FOR CONTRIBUTION AS
EXCEPTED FROM THE WAIVER IS EMPHASIZED BY SUCH EXCEPTIONS AS THE
FOLLOWING: 

"(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  ... 

     .       .         .         .         . 

"(H)  ANY CLAIM ARISING OUT OF ASSAULT, BATTERY, FALSE IMPRISONMENT,
FALSE ARREST, MALICIOUS PROSECUTION, ABUSE OF PROCESS, LIBEL, SLANDER,
MISREPRESENTATION, DECEIT, OR INTERFERENCE WITH CONTRACT RIGHTS.  ...
"  60 STAT. 845, 846, 28 U.S.C. (1946 ED.)  SEC.  943(A) AND (H), SEE
28 U.S.C. (1946 ED., SUPP. III) SEC. 2680(A) AND (H). 

FN6  THE ONLY ACT PREVIOUSLY ADOPTED IN THIS FIELD WAS THE SMALL TORT
CLAIMS ACT OF DECEMBER 28, 1922.  IT MERELY AUTHORIZED HEADS OF
EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO GIVE SUMMARY
RELIEF ON "ANY CLAIM ACCRUING AFTER APRIL 6, 1917, ON ACCOUNT OF
DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY WHERE THE AMOUNT OF THE
CLAIM DOES NOT EXCEED $1,000, CAUSED BY THE NEGLIGENCE OF ANY OFFICER
OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS
EMPLOYMENT.  ...  "  42 STAT. 1066, 31 U.S.C. (1940 ED.)  SEC.  215;
SEE 60 STAT. 843, 28 U.S.C. (1946 ED.)  SEC.  921, 28 U.S.C. (1946 ED.,
SUPP. III) SEC. 2672. 

MANY BILLS TO ENLARGE THE WAIVER OF IMMUNITY WERE INTRODUCED BUT NOT
PASSED.  SEE BROOKS V. UNITED STATES, 337 U.S. 49, 51; GOTTLIEB, THE
FEDERAL TORT CLAIMS ACT - A STATUTORY INTERPRETATION, 35 GEO. L.J. 1
8(1946-1947). 

FN7  THE SPECIAL SENATE COMMITTEE ON THE ORGANIZATION OF CONGRESS,
WHICH REPORTED THE BILL, REFERRED TO THIS TITLE IV AS FOLLOWS:  "IT IS
COMPLEMENTARY TO THE PROVISION IN TITLE I BANNING PRIVATE BILLS AND
RESOLUTIONS IN CONGRESS, LEAVING CLAIMANTS TO THEIR REMEDY UNDER THIS
TITLE."  S. REP. NO. 1400(ON S. 2177), 79TH CONG., 2D SESS. 29.  THAT
PROVISION WAS:

                         "PRIVATE BILLS BANNED 

"SEC. 131.  NO PRIVATE BILL OR RESOLUTION (INCLUDING SO-CALLED
OMNIBUS CLAIMS OR PENSION BILLS), AND NO AMENDMENT TO ANY BILL OR
RESOLUTION, AUTHORIZING OR DIRECTING (1) THE PAYMENT OF MONEY FOR
PROPERTY DAMAGES, FOR PERSONAL INJURIES OR DEATH FOR WHICH SUIT MAY BE
INSTITUTED UNDER THE FEDERAL TORT CLAIMS ACT, OR FOR A PENSION (OTHER
THAN TO CARRY OUT A PROVISION OF LAW OR TREATY STIPULATION); (2) THE
CONSTRUCTION OF A BRIDGE ACROSS A NAVIGABLE STREAM; OR (3) THE
CORRECTION OF A MILITARY OR NAVAL RECORD, SHALL BE RECEIVED OR
CONSIDERED IN EITHER THE SENATE OR THE HOUSE OF REPRESENTATIVES."  60
STAT. 831. 

FN8  THE BROAD LINES OF THE TREND IN WAIVING THE IMMUNITY OF THE
UNITED STATES FROM SUIT APPEAR FROM THE COURT OF CLAIMS ACT OF FEB. 24,
1855, 10 STAT. 612, SEE 28 U.S.C. (1946 ED., SUPP. III) SEC. 171, ET
SEQ.; TUCKER ACT OF MAR. 3, 1887, 24 STAT. 505, SEE 28 U.S.C. (1946
ED., SUPP. III) SEC. 1491, ET SEQ.; PATENT INFRINGEMENT ACT OF JUNE 25,
1910, 36 STAT. 851, AS AMENDED, 35 U.S.C. (1946 ED.)  SEC.  68; SUITS
IN ADMIRALTY ACT OF MAR. 9, 1920, 41 STAT. 525, AS AMENDED, 46 U.S.C.
(1946 ED.)  SEC.  741, ET SEQ.; SMALL TORT CLAIMS ACT OF DEC. 28, 1922,
42 STAT. 1066, SEE 28 U.S.C. (1946 ED., SUPP. III) SEC. 2672; PUBLIC
VESSELS ACT OF MAR. 3, 1925, AS AMENDED, 43 STAT. 1112, 46 U.S.C. (1946
ED.)  SEC.  781, ET SEQ. SEE ALSO, SHUMATE, TORT CLAIMS AGAINST STATE
GOVERNMENTS, 9 LAW AND CONTEMP.  PROB.  (1942) 242; CONSTITUTIONAL AND
STATUTORY PROVISIONS OF THE STATES, VOL. VIII, SETTLEMENT OF CLAIMS
AGAINST THE STATES, PUBLISHED BY THE COUNCIL OF STATE GOVERNMENTS
(1950). 

THE VIEWS EXPRESSED IN THE EARLIER LEGISLATIVE HISTORY OF THIS
PARTICULAR BILL LOSE FORCE BY THEIR OMISSION FROM THE 1946 REPORT AND
DISCUSSION.  HOWEVER, THE FOLLOWING COMMENT MADE IN 1942 BY THE HOUSE
COMMITTEE ON THE JUDICIARY, THEN IN CHARGE OF THE BILL, IS OF SOME
SIGNIFICANCE FOR THE REASON THAT IT RELATES TO THE EFFECT OF THE
OMISSION OF A CERTAIN PROVISION, AND THERE WAS NO OCCASION TO REFER
AGAIN TO THAT OMISSION IN 1946: 

"SECTION 403 OF THE SENATE BILL PROVIDED FOR PROPORTIONATE LIABILITY
OF THE UNITED STATES WHERE A GOVERNMENT EMPLOYEE WAS A JOINT TORTFEASOR
WITH SOMEONE ELSE.  THIS PROVISION IS NOT CONTAINED IN THE RECOMMENDED
BILL AND IN CASES INVOLVING JOINT TORT-FEASORS THE RIGHTS AND
LIABILITIES OF THE UNITED STATES WILL BE DETERMINED BY THE LOCAL LAW." 
H.R. REP. NO. 2245, 77TH CONG., 2D SESS. 12. 

THIS RECOGNIZES THAT WITH THE PROVISION FOR PROPORTIONATE LIABILITY
ELIMINATED, AS IS STILL THE CASE, THE IMMUNITY OF THE UNITED STATES
SHOULD BE CONSIDERED AS WAIVED IN RELATION TO THE GOVERNMENT'S RIGHTS
AND LIABILITIES IN CASES INVOLVING JOINT TORT-FEASORS. 

IN THE SAME REPORT, AT PAGE 9, THE COMMITTEE MADE STATEMENTS WHICH
ARE RELIED UPON BY THE GOVERNMENT IN ARGUMENT, AS ASSIMILATING THE
PROPOSED JURISDICTION OF THE DISTRICT COURTS UNDER THE FEDERAL TORT
CLAIMS ACT TO THEIR EXISTING JURISDICTION UNDER THE TUCKER ACT.  BASED
ON SUCH ASSIMILATION, IT IS ARGUED THAT THE UNITED STATES MAY NOT BE
JOINED AS A DEFENDANT UNDER THE NEW ACT BECAUSE IT COULD NOT BE SO
JOINED UNDER THE TUCKER ACT.  THESE STATEMENTS WERE REPEATED IN THE
REPORT OF THE SAME COMMITTEE IN 1945.  H.R. REP. NO. 1287(ON H.R. 181),
79TH CONG., 1ST SESS. 5.  THE STATEMENTS, HOWEVER, WERE ENTIRELY
OMITTED FROM EVEN THE SECTIONAL ANALYSIS OF THE MEASURE WHEN IN 1946 IT
WAS INCORPORATED IN THE REORGANIZATION BILL AND THE REPORT ON IT WAS
MADE BY THE SENATE COMMITTEE ON THE ORGANIZATION OF CONGRESS.  S. REP.
NO. 1400(ON S. 2177), 79TH CONG., 2D SESS. 29-34.  THE OMITTED COMMENTS
RELATED TO THE JOINDER OF THE UNITED STATES AS A CO-DEFENDANT, RATHER
THAN AS A THIRD-PARTY DEFENDANT.  WE NOTE ALSO THAT THE TORT CLAIMS ACT
SUBSTANTIALLY BROADENS THE JURISDICTION OF THE DISTRICT COURTS AS
COMPARED TO THAT PROVIDED BY THE TUCKER ACT.  UNDER THE TORT CLAIMS ACT
THEIR JURISDICTION IS UNLIMITED IN AMOUNT INSTEAD OF BEING RESTRICTED
TO CLAIMS NOT EXCEEDING $10,000; IT IS EXCLUSIVE OF, RATHER THAN
CONCURRENT WITH, THAT OF THE COURT OF CLAIMS, AND THE DISTRICT COURT
PROCEDURE IS EXPRESSLY MADE SUBJECT TO THE FEDERAL RULES OF CIVIL
PROCEDURE RATHER THAN TO THE TUCKER ACT. 

FN9 "SEC.  411.  IN ACTIONS UNDER THIS PART (SUITS ON TORT CLAIMS
AGAINST THE UNITED STATES), THE FORMS OF PROCESS, WRITS, PLEADINGS, AND
MOTIONS, AND THE PRACTICE AND PROCEDURE, SHALL BE IN ACCORDANCE WITH
THE RULES PROMULGATED BY THE SUPREME COURT PURSUANT TO THE ACT OF JUNE
19, 1934(48 STAT. 1064)(FEDERAL RULES OF CIVIL PROCEDURE); AND THE SAME
PROVISIONS FOR COUNTERCLAIM AND SET-OFF, FOR INTEREST UPON JUDGMENTS,
AND FOR PAYMENT OF JUDGMENTS, SHALL BE APPLICABLE AS IN CASES BROUGHT
IN THE UNITED STATES DISTRICT COURTS UNDER THE ACT OF MARCH 3, 1887(24
STAT. 505)(TUCKER ACT)."  60 STAT. 844, 28 U.S.C. (1946 ED.)  SEC. 
932. 

THE ABOVE REFERENCES TO THE SPECIFIC INSTANCES IN WHICH THE TUCKER
ACT PROCEDURE IS TO CONTROL UNDER THE FEDERAL TORT CLAIMS ACT EMPHASIZE
THE APPLICATION OF THE FEDERAL RULES OF CIVIL PROCEDURE UNDER ALL OTHER
CIRCUMSTANCES. 

IN THE REVISION OF TITLE 28, EFFECTIVE SEPTEMBER 1, 1948, THIS
PROCEDURE PROMULGATED BY THE SUPREME COURT SHALL APPLY TO ALL CIVIL
ACTIONS."  S. REP. NO. 1559, 80TH CONG., 2D SESS. 12, AS TO AMENDMENT
NO. 61. 

FN10            "RULE 14.  THIRD-PARTY PRACTICE. 

"(A)  WHEN DEFENDANT MAY BRING IN THIRD PARTY.  BEFORE THE SERVICE OF
HIS ANSWER A DEFENDANT MAY MOVE EX PARTE OR, AFTER THE SERVICE OF HIS
ANSWER, ON NOTICE TO THE PLAINTIFF, FOR LEAVE AS A THIRD-PARTY
PLAINTIFF TO SERVE A SUMMONS AND COMPLAINT UPON A PERSON NOT A PARTY TO
THE ACTION WHO IS OR MAY BE LIABLE TO HIM FOR ALL OR PART OF THE
PLAINTIFF'S CLAIM AGAINST HIM.  IF THE MOTION IS GRANTED AND THE
SUMMONS AND COMPLAINT ARE SERVED, THE PERSON SO SERVED, HEREINAFTER
CALLED THE THIRD-PARTY DEFENDANT, SHALL MAKE HIS DEFENSES TO THE THIRD
PARTY PLAINTIFF'S CLAIM AS PROVIDED IN RULE 12  ...  THE THIRD-PARTY
DEFENDANT MAY ASSERT AGAINST THE PLAINTIFF ANY DEFENSES WHICH THE THIRD
PARTY PLAINTIFF HAS TO THE PLAINTIFF'S CLAIM.  ...  "  (THE AMENDMENTS
WHICH BECAME EFFECTIVE MARCH 19, 1948, AND ARE INCLUDED HERE, MADE NO
CHANGES THAT ARE MATERIAL IN THE INSTANT CASES.) 

RULE 20 SIMILARLY PROVIDES FOR THE PERMISSIVE JOINDER OF PARTIES. 

FN11  SEE ENGLEHARDT V. UNITED STATES, 69 F.SUPP.  451(D.C. MD.);
NEWSUM V. PENNSYLVANIA R. CO., 79 F.SUPP.  225(D.C.S.D.N.Y.)(THIRD
PARTY PRACTICE); MARYLAND V. MANOR REAL ESTATE & TRUST CO., 83 F.SUPP. 
91(D.C. MD.), REV'D IN PART ON OTHER GROUNDS, 176 F.2D 414; RIVERS V.
BAUER, 79 F.SUPP.  403(D.C.E.D. PA.), AFF'D, 175 F.2D 774; AND BULLOCK
V. UNITED STATES, 72 F.SUPP.  445(D.C.N.J.); ALSO 3 MOORE'S FEDERAL
PRACTICE (2D ED. 1948) 2737-2738; HULEN, SUITS ON TORT CLAIMS AGAINST
THE UNITED STATES, 7 F.R.D. (1948) 699-700; AND NOTE, JOINDER OF THE
GOVERNMENT UNDER THE FEDERAL TORT CLAIMS ACT, 59 YALE L.J. 1515
1521(1950).  CONTRA:  PRECHTL V. UNITED STATES, 84 F.SUPP. 
889(D.C.W.D.N.Y.); DONOVAN V. MCKENNA, 80 F.SUPP.  690(D.C. MASS.);
UARTE V. UNITED STATES, 7 F.R.D. 705(D.C.S.D. CALIF.), AFF'D ON OTHER
GROUNDS, 175 F.2D 110; DRUMMOND V. UNITED STATES, 78 F.SUPP. 
730(D.C.E.D. VA.).    FN12  SEE RYAN DISTRIBUTING CORP. V. CALEY, 51
F.SUPP.  377(D.C.E.D. PA.)(IN PATENT LITIGATION, CLAIM OF DAMAGES FOR
INFRINGEMENT WAS TRIED BY JURY AND PETITION FOR INJUNCTION WAS PASSED
ON BY THE COURT); FORD V. WILSON & CO., 30 F.SUPP.  163(D.C.
CONN.)(LEGAL ISSUES TO JURY, EQUITY ISSUES TO THE COURT); MUNKACSY V.
WARNER BROS. PICTURES, 2 F.R.D. 380(D.C.E.D.N.Y.)(LIBEL ISSUE BY JURY;
VIOLATION OF CIVIL RIGHTS WHERE JURY WAS NOT DEMANDED WAS TRIED BY THE
COURT); MEALY V. FIDELITY NATIONAL BANK, 2 F.R.D. 339(D.C.E.D.N.Y.)(TWO
CAUSES OF ACTION TRIED BY COURT AND THIRD BY JURY); ELKINS V. NOBEL, 1
F.R.D. 357(D.C.E.D.N.Y.)(ONE CAUSE OF ACTION TRIED BY COURT AND THREE
BY JURY).  SEE ALSO, FED. RULES CIV. PROC., 38(C), 39 AND 42. 

FN13  SEE NOTE 10, SUPRA. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :










EMICH MOTORS V. GENERAL MOTORS, 340 U.S. 558 


NO. 209.  ARGUED JANUARY 3-4, 1951.  - DECIDED FEBRUARY 26, 1951.  - 181
F.2D 70, MODIFIED. 


1.  IN THIS SUIT UNDER SEC. 4 OF THE CLAYTON ACT TO RECOVER TREBLE
DAMAGES FOR INJURIES SUSTAINED BY REASON OF A CONSPIRACY IN RESTRAINT
OF TRADE, PLAINTIFFS WERE ENTITLED UNDER SEC. 5 TO INTRODUCE A PRIOR
CRIMINAL JUDGMENT BASED ON A CONVICTION OF DEFENDANTS FOR THE SAME
CONSPIRACY, IN ORDER TO ESTABLISH PRIMA FACIE ALL MATTERS OF FACT AND
LAW NECESSARILY DECIDED BY THE CONVICTION AND THE VERDICT ON WHICH IT
WAS BASED.  PP. 566-569. 

2.  WHERE THE CRIMINAL JUDGMENT RESTS ON A GENERAL VERDICT OF THE
JURY, WHAT WAS DECIDED BY THAT JUDGMENT MUST BE DETERMINED BY THE TRIAL
JUDGE HEARING THE TREBLE DAMAGE SUIT, UPON AN EXAMINATION OF THE
RECORD, INCLUDING THE PLEADINGS, THE EVIDENCE SUBMITTED, THE
INSTRUCTIONS UNDER WHICH THE JURY ARRIVED AT ITS VERDICT, AND ANY
OPINIONS OF THE COURT.  P. 569. 

3.  THE CRIMINAL JUDGMENT INVOLVED IN THIS CASE WAS PRIMA FACIE
EVIDENCE OF A GENERAL CONSPIRACY FOR THE PURPOSE OF MONOPOLIZING THE
FINANCING OF GENERAL MOTORS CARS, AND ALSO OF THE EFFECTUATION OF THAT
CONSPIRACY BY COERCING GENERAL MOTORS DEALERS TO USE ITS SUBSIDIARY
FINANCE COMPANY'S SERVICES.  PP. 570-571. 

4.  IN ORDER TO ESTABLISH THEIR PRIMA FACIE CASE, IT THEREFORE WAS
ONLY NECESSARY FOR PLAINTIFFS TO INTRODUCE, IN ADDITION TO THE CRIMINAL
JUDGMENT, EVIDENCE OF THE IMPACT OF THE CONSPIRACY ON THEM AND EVIDENCE
OF ANY RESULTING DAMAGES.  P. 571. 

5.  WHAT ISSUES WERE DECIDED BY THE CRIMINAL CONVICTION IS A QUESTION
OF LAW ON WHICH THE JUDGE MUST INSTRUCT THE JURY.  HE SHOULD (1)
EXAMINE THE RECORD TO DETERMINE THE ISSUES DECIDED BY THAT JUDGMENT;
(2) IN HIS INSTRUCTIONS TO THE JURY RECONSTRUCT THAT CASE IN THE MANNER
AND TO THE EXTENT HE DEEMS NECESSARY TO ACQUAINT THE JURY FULLY WITH
THE ISSUES DETERMINED THEREIN; AND (3) EXPLAIN THE SCOPE AND EFFECT OF
THE FORMER JUDGMENT ON THE CASE AT TRIAL.  PP. 571-572. 

EMICH MOTORS CORP. ET AL. V. GENERAL MOTORS CORP. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

THE CASE IS REMANDED TO THE COURT OF APPEALS WITH DIRECTIONS TO
MODIFY ITS JUDGMENT, P. 572. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS UNDER SEC. 4 OF THE CLAYTON ACT  FN1  TO
RECOVER TREBLE DAMAGES FOR INJURIES ALLEGED TO HAVE BEEN SUFFERED BY
REASON OF A CONSPIRACY IN RESTRAINT OF TRADE IN VIOLATION OF THE
SHERMAN ACT, SEC. 1..  FN2  PLAINTIFFS, PETITIONERS HERE, ARE EMICH
MOTORS CORPORATION, A FORMER DEALER IN CHEVROLET CARS, AND ITS RELATED
FINANCE COMPANY, U.S. ACCEPTANCE CORPORATION.  RESPONDENTS ARE GENERAL
MOTORS CORPORATION AND ITS WHOLLY OWNED SUBSIDIARY FINANCE COMPANY,
GENERAL MOTORS ACCEPTANCE CORPORATION (GMAC). 

PRIOR TO THIS ACTION RESPONDENTS HAD BEEN CONVICTED IN THE FEDERAL
DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA ON AN INDICTMENT
CHARGING THEM, AND CERTAIN OF THEIR OFFICERS AND AGENTS WHO WERE
ACQUITTED, WITH A CONSPIRACY IN RESTRAINT OF INTERSTATE TRADE IN
GENERAL MOTORS CARS.  AT TRIAL IN THE INSTANT CASE PETITIONERS WERE
PERMITTED TO INTRODUCE THE ANTECEDENT CRIMINAL INDICTMENT, VERDICT AND
JUDGMENT AS EVIDENCE UNDER SEC. 5 OF THE CLAYTON ACT, WHICH PROVIDES IN
PART THAT 

"A FINAL JUDGMENT OR DECREE RENDERED IN ANY CRIMINAL PROSECUTION OR
IN ANY SUIT OR PROCEEDING IN EQUITY BROUGHT BY OR ON BEHALF OF THE
UNITED STATES UNDER THE ANTITRUST LAWS TO THE EFFECT THAT A DEFENDANT
HAS VIOLATED SAID LAWS SHALL BE PRIMA FACIE EVIDENCE AGAINST SUCH
DEFENDANT IN ANY SUIT OR PROCEEDING BROUGHT BY ANY OTHER PARTY AGAINST
SUCH DEFENDANT UNDER SAID LAWS AS TO ALL MATTERS RESPECTING WHICH SAID
JUDGMENT OR DECREE WOULD BE AN ESTOPPEL AS BETWEEN THE PARTIES THERETO
... "  FN3 

A JUDGMENT FOR PETITIONERS WAS REVERSED BY THE COURT OF APPEALS FOR
THE SEVENTH CIRCUIT PARTLY ON THE GROUND THAT THE TRIAL COURT ERRED IN
THE USE IT PERMITTED THE JURY TO MAKE OF EVIDENCE DERIVED FROM THE
PRIOR CRIMINAL PROCEEDING.  181 F.2D 70(1950).  WE GRANTED CERTIORARI,
LIMITING REVIEW TO IMPORTANT QUESTIONS AS TO THE SCOPE OF SEC. 5 OF THE
CLAYTON ACT.  340 U.S. 808(1950), REHEARING DENIED 340 U.S. 894(1950). 

              I. 

THE RELEVANT FACTS AS TO THE CRIMINAL PROSECUTION AGAINST RESPONDENTS
MAY BE STATED BRIEFLY.  THE CHARGE OF THE INDICTMENT WAS SUMMARIZED ON
APPEAL AS FOLLOWS: 

"  ...  PARAGRAPH 34 CHARGES  ...  A CONSPIRACY TO RESTRAIN UNDULY
THE INTERSTATE TRADE AND COMMERCE IN GENERAL MOTORS AUTOMOBILES. 
PARAGRAPH 35 STATES THAT THE PURPOSE OF THE DEFENDANTS WAS TO
MONOPOLIZE AND CONTROL THE BUSINESS OF FINANCING THE TRADE AND COMMERCE
IN NEW AND USED GENERAL MOTORS AUTOMOBILES.  PARAGRAPH 70 ALLEGES THAT
DEALERS HAVE COMPLIED WITH THE DEFENDANTS' COERCIVE PLAN IN ORDER TO
SAVE SUBSTANTIAL INVESTMENTS IN THEIR BUSINESSES, PARAGRAPH 71 STATES
THAT THE EFFECT OF THE CONSPIRACY HAS BEEN TO RESTRAIN AND BURDEN
UNREASONABLY THE INTERSTATE TRADE AND COMMERCE IN GENERAL MOTORS
AUTOMOBILES, AND PARAGRAPH 72 IS A RESTATEMENT OF PARAGRAPH 34. 

"THE SPECIFIC CONDUCT EMBRACED WITHIN THE ILLEGAL CONCERT OF ACTION
IS DESCRIBED IN PARAGRAPHS 36 TO 67 OF THE INDICTMENT  ...  :  (1)
REQUIRING DEALERS TO PROMISE TO USE GMAC EXCLUSIVELY AS A CONDITION TO
OBTAINING A FRANCHISE FOR THE SALE, TRANSPORTATION AND DELIVERY OF
AUTOMOBILES; (2) MAKING CONTRACTS FOR SHORT PERIODS AND CANCELLABLE
WITHOUT CAUSE, CANCELING OR THREATENING TO CANCEL SUCH CONTRACTS UNLESS
GMAC FACILITIES ARE USED; (3) DISCRIMINATING AGAINST DEALERS NOT USING
GMAC BY REFUSING TO DELIVER CARS WHEN ORDERED, DELAYING SHIPMENT AND
SHIPPING CARS OF DIFFERENT NUMBER, MODEL, COLOR AND STYLE; (4)
COMPELLING DEALERS TO DISCLOSE HOW THEY FINANCE THEIR WHOLESALE
PURCHASES AND RETAIL SALES, EXAMINING AND INSPECTING DEALERS' BOOKS AND
ACCOUNTS IN ORDER TO PROCURE THIS INFORMATION, AND REQUIRING DEALERS TO
JUSTIFY THEIR USING OTHER FINANCING MEDIA; (5) GIVING SPECIAL FAVORS TO
DEALERS USING THE WHOLESALE AND RETAIL FACILITIES OF GMAC; (6) GRANTING
SPECIAL FAVORS TO GMAC WHICH ARE DENIED TO OTHER DISCOUNT COMPANIES;
(7) GIVING DEALERS A REBATE FROM THE GMAC FINANCE CHARGE PAID BY THE
RETAIL PURCHASER, IN ORDER TO INDUCE USE OF GMAC FINANCING FACILITIES;
AND (8) COMPELLING DEALERS TO REFRAIN FROM USING OTHER FINANCE
COMPANIES BY ALL OTHER NECESSARY, APPROPRIATE OR EFFECTIVE MEANS."  FN4
THE CRIMINAL CASE WAS SUBMITTED TO THE JURY WITH INSTRUCTIONS THAT THE
GOVERNMENT NEED NOT PROVE ALL OF SOME TWENTY-SIX ACTS ALLEGED IN THE
INDICTMENT AS THE MEANS OF EFFECTING THE CONSPIRACY.  THE JURY RENDERED
A GENERAL VERDICT FINDING THE CORPORATE DEFENDANTS GUILTY AND
ACQUITTING ALL INDIVIDUAL DEFENDANTS.  MAXIMUM FINES WERE ASSESSED
AGAINST EACH OF THE CORPORATIONS.  THE SEVENTH CIRCUIT COURT OF APPEALS
AFFIRMED.  UNITED STATES V. GENERAL MOTORS CORP., 121 F.2D 376(1941). 
THIS COURT DENIED CERTIORARI, 314 U.S. 618(1941), REHEARING DENIED 314
U.S. 710(1941). 

AMONG THE ALMOST 50 DEALERS AND FORMER DEALERS WHOSE TESTIMONY THE
GOVERNMENT INTRODUCED IN THE CRIMINAL ACTION WAS FRED EMICH, WHO OWNED
OR CONTROLLED THE CORPORATIONS WHICH ARE PETITIONERS HERE.  ON THE
CRIMINAL APPEAL THE COURT OF APPEALS THUS REVIEWED HIS TESTIMONY: 

"FRED EMICH WAS A CHEVROLET DEALER AT CHICAGO, ILLINOIS, FROM 1932 TO
1936 AND HE OWNED HIS OWN FINANCE COMPANY TO FACILITATE HIS PURCHASES
AND SALES, A COURSE OF BUSINESS CONDUCT WHICH DISPLEASED GMAC.  HE
RECEIVED UNORDERED CARS AND TRUCKS IN 1933, AND THE CITY MANAGER OF
CHEVROLET INFORMED HIM THAT SHIPMENT OF UNORDERED CARS WOULD CEASE AS
SOON AS HE WOULD GIVE SOME OF HIS TIME SALES FINANCE PAPER TO GMAC.  HE
GAVE GMAC AROUND 10% OF HIS BUSINESS IN 1934 AND BECAME ACQUAINTED WITH
THE VISITS OF GMAC AND CHEVROLET REPRESENTATIVES.  THE ZONE MANAGER
WARNED HIM AT THE 1935 CONTRACT RENEWAL MEETING TO THE EFFECT THAT IF
HE EXPECTED TO CONTINUE AS A CHEVROLET DEALER HE HAD BETTER USE GMAC AT
LEAST 50%.  AGAIN HE EXPERIENCED DIFFICULTIES WITH CHEVROLET.  THIS
TIME CARS OF WRONG COLORS AND MODELS WERE SHIPPED TO HIM AND UNORDERED
ACCESSORIES IN GREAT QUANTITIES WERE FORCED UPON HIM.  IN ADDITION HE
WAS REQUIRED TO SEND BLANK CHECKS TO THE FACTORY BEFORE CARS WERE
SHIPPED TO HIM.  HE WAS TOLD BY THE GMAC REPRESENTATIVE THAT THESE
PROBLEMS WOULD DISAPPEAR IF HE USED GMAC.  IN 1936 EMICH WAS GIVEN HIS
'LAST WARNING,' THE ZONE MANAGER TELLING HIM THAT HE WAS GOING TO MAKE
AN EXAMPLE OF EMICH FOR HIS FAILURE TO USE GMAC.  NOT LONG THEREAFTER
EMICH WAS CANCELLED AS A DEALER, AND HE APPEALED TO THE PRESIDENT OF
GENERAL MOTORS WHERE HE PLEADED THAT IN A PERIOD OF FOUR YEARS HE HAD
DONE A GROSS BUSINESS OF AROUND $3,000,000.  THE PRESIDENT OF GENERAL
MOTORS TOLD HIM THAT HE HAD BEEN CANCELLED BECAUSE HE DID NOT USE GMAC,
THAT IT WAS THE POLICY OF THE CORPORATION TO REQUIRE DEALERS TO USE
GMAC, AND THAT IF EMICH WOULD NOT AGREE TO USE GMAC IT WOULD BE USELESS
FOR THE PRESIDENT OF GENERAL MOTORS TO DISCUSS HIS REINSTATEMENT  ...
"  FN5

                          II. 

IN THEIR COMPLAINT PETITIONERS ALLEGE THAT RESPONDENTS UNLAWFULLY
CONSPIRED IN RESTRAINT OF INTERSTATE TRADE IN GENERAL MOTORS CARS; THAT
THE CONSPIRACY SO ALLEGED IS THE SAME AS THAT CHARGED AGAINST
RESPONDENTS AND OF WHICH THEY WERE CONVICTED IN THE ANTECEDENT CRIMINAL
ACTION, A COPY OF THE INDICTMENT THEREIN BEING ATTACHED AS AN EXHIBIT;
THAT PURSUANT TO THIS CONSPIRACY RESPONDENTS INJURED PETITIONERS'
BUSINESSES BY ONE OR MORE OF THE UNLAWFUL ACTS SET FORTH IN SAID
INDICTMENT, MORE PARTICULARLY BY TERMINATING OR CANCELLING OR
THREATENING TO TERMINATE OR CANCEL THE DEALER FRANCHISE CONTRACTS OF
EMICH MOTORS, WHICH HAD FINANCED THE PURCHASE OR SALE OF CARS THROUGH
U.S. ACCEPTANCE CORPORATION RATHER THAN THROUGH GMAC.  RESPONDENTS DENY
ANY CONSPIRACY; THEY ADMIT CANCELLATION OF THE FRANCHISES BUT ASSERT
THAT SUCH ACTION WAS JUSTIFIED BY EMICH MOTORS' FAILURE TO PERFORM
CERTAIN OBLIGATIONS THEREUNDER, AS WELL AS ITS PERSISTENCE IN A COURSE
OF CONDUCT INIMICAL TO THE INTEREST OF GENERAL MOTORS IN PROMOTING THE
SALE OF CHEVROLET CARS. 

IN ORDER TO ESTABLISH THEIR PRIMA FACIE CASE UNDER SEC. 5,
PETITIONERS OFFERED IN EVIDENCE THE SIX-VOLUME RECORD OF TESTIMONY AND
EXHIBITS IN THE CRIMINAL CASE.  THE COURT HELD IT INADMISSIBLE AS
EVIDENCE FOR THE JURY, WITH CERTAIN EXCEPTIONS NOT IMPORTANT HERE. 
HOWEVER, OVER RESPONDENTS' OBJECTION, THE COURT ADMITTED, AS EXHIBITS
TO GO TO THE JURY, THE INDICTMENT, VERDICT AND JUDGMENT OF CONVICTION
IN THE CRIMINAL CASE. 

IN HIS INSTRUCTIONS THE TRIAL JUDGE SUMMARIZED THE CRIMINAL
INDICTMENT, THE COMPLAINT OF PETITIONERS, AND RESPONDENTS' ANSWER.  HE
THEN INSTRUCTED THAT THE 

"  ...  JUDGMENT IN THE CRIMINAL PROCEEDINGS  ...  IS ADMITTED AS
EVIDENCE IN THIS CASE AS PRIMA FACIE EVIDENCE THAT (RESPONDENTS) DID
ENTER INTO AN UNLAWFUL CONSPIRACY IN VIOLATION OF THE ANTI-TRUST LAWS
...  IN THE MANNER DESCRIBED IN THE INDICTMENT  ...  " 

AFTER EXPLAINING THE TERM "PRIMA FACIE EVIDENCE," THE COURT THEN
SUMMARIZED SEC. 5 OF THE CLAYTON ACT AND CHARGED THAT 

"  ...  IT WAS NOT NECESSARY FOR THE GOVERNMENT TO PROVE ALL OF THE
ACTS ALLEGED IN THE SEPARATE SECTIONS OF THE INDICTMENT.  ...  NOR IS
IT NECESSARY FOR THE PLAINTIFFS TO PROVE ALL THE ACTS CHARGED IN THE
INDICTMENT FOR YOU TO FIND THAT THE CONSPIRACY ALLEGED DID EXIST. 

"THE JUDGMENT IN THE CRIMINAL CASE WAS ADMITTED IN EVIDENCE IN THIS
CASE, PURSUANT TO THE LAW TO WHICH I HAVE JUST REFERRED, FOR THE
PURPOSE OF THE PLAINTIFF MAKING A PRIMA FACIE CASE AGAINST THE
DEFENDANTS AS TO ONE OF THE ISSUES OF THIS CASE AND ONLY AND SOLELY FOR
THE PURPOSE OF DEFINING, DESCRIBING, AND LIMITING THE SCOPE OF THE
JUDGMENT ON THE VERDICT WHICH WAS ENTERED IN THAT CASE, NAMELY, THE
CONSPIRACY TO VIOLATE THE ANTI-TRUST LAWS. 

"THE BURDEN IS ON THE PLAINTIFFS OF ESTABLISHING BY A PREPONDERANCE
OF THE EVIDENCE THAT THEY WERE INJURED BY THE DEFENDANTS PURSUANT TO OR
IN THE COURSE OF A CONSPIRACY AND IN ORDER TO RECOVER DAMAGES FOR THE
CANCELLATION OF THE CHEVROLET FRANCHISES THEY MUST PROVE BY A
PREPONDERANCE OF THE EVIDENCE INCLUDING THE CRIMINAL JUDGMENT THAT THE
DEFENDANTS ENTERED INTO A CONSPIRACY TO COMPEL THE USE OF GENERAL
MOTORS ACCEPTANCE CORPORATION BY AGREEING AMONG THEMSELVES, AMONG OTHER
THINGS, TO CANCEL DEALERS WHO FAILED OR REFUSED TO USE GENERAL MOTORS
ACCEPTANCE CORPORATION TO A SATISFACTORY EXTENT AND THAT THE FRANCHISE
OF EMICH MOTORS CORPORATION WAS CANCELLED BY REASON OF AND PURSUANT TO
SAID CONSPIRACY AND NOT BECAUSE OF THE THINGS ALLEGED BY DEFENDANTS AS
THE REASONS FOR SUCH CANCELLATION, AND TO RECOVER ANY DAMAGES FOR THE
FAILURE OF DEFENDANTS TO DELIVER ANY CHEVROLET AUTOMOBILES, PLAINTIFFS
MUST ESTABLISH THAT DEFENDANTS AS PART OF THE CONSPIRACY AGREED AMONG
THEMSELVES TO WITHHOLD OR DELAY DELIVERY OF AUTOMOBILES TO DEALERS WHO
REFUSED OR FAILED TO USE THE SERVICES OF GENERAL MOTORS ACCEPTANCE
CORPORATION TO A SATISFACTORY EXTENT AND THAT THE DEFENDANTS ACTIVELY
FAILED TO DELIVER OR DELAYED SHIPMENTS OF CARS TO PLAINTIFFS PURSUANT
TO AND AS A PART OF SAID ALLEGED CONSPIRACY." 

THE JURY RETURNED A VERDICT FOR PETITIONERS WHICH RESULTED IN
JUDGMENTS FOR $1,236,000 TREBLE DAMAGES.  THE COURT ASSESSED
$257,358.10 AS COSTS AND ATTORNEYS' FEES. 

THE COURT OF APPEALS CONCLUDED THAT UNDER SEC. 5 THE CRIMINAL
JUDGMENT WAS PRIMA FACIE EVIDENCE "THAT DEFENDANTS HAD BEEN GUILTY OF A
CONSPIRACY TO RESTRAIN DEALERS' INTERSTATE TRADE AND COMMERCE IN
GENERAL MOTORS CARS FOR THE PURPOSE OF MONOPOLIZING THE FINANCING
ESSENTIAL TO THE MOVEMENT OF THOSE CARS."  181 F.2D AT 75.  IT APPROVED
THE TRIAL COURT'S RULING AS TO THE INADMISSIBILITY IN EVIDENCE OF THE
ENTIRE RECORD OF THE CRIMINAL CASE, BUT CRITICIZED THE USE OF THE
INDICTMENT AS AN EXHIBIT TO THE COMPLAINT, AS WELL AS CERTAIN
REFERENCES TO THE INDICTMENT IN THE OPENING STATEMENT AND CLOSING
ARGUMENT OF PETITIONERS' COUNSEL TO THE JURY.  IT HELD THAT SERIOUS
ERROR WAS COMMITTED WHEN THE INDICTMENT WAS SENT TO THE JURY AS AN
EXHIBIT AND THE TRIAL COURT "TOLD THE JURY THAT IT COULD LOOK TO IT
(THE INDICTMENT) TO ASCERTAIN THE MEANS AND THE ACTS COMMITTED IN
FURTHERANCE OF THE CONSPIRACY  ...  "  THE COURT OBSERVED THAT "IT WAS
UNNECESSARY FOR THE GOVERNMENT TO PROVE  ...  ANY OF THE ACTS OR MEANS,
EXCEPT FOR THE PURPOSE OF ESTABLISHING VENUE, IN ORDER FOR THE JURY IN
THE CRIMINAL PROCEEDING TO FIND DEFENDANTS GUILTY," AND THAT "SUCH ACTS
AND MEANS ARE NOT TO BE CONSIDERED AS ESTABLISHED BY THE FINDING OF
GUILT."  IT CONCLUDED THAT THE USE OF THE INDICTMENT AS EVIDENCE WAS
AGGRAVATED BY THE INSTRUCTION OF THE TRIAL JUDGE LAST QUOTED AND
ITALICIZED IN PART, SUPRA, P. 565. 

                          III. 

THE ISSUE WE MUST DETERMINE, AS DEFINED IN OUR ORDER GRANTING REVIEW,
IS "WHETHER THE COURT OF APPEALS ERRED IN CONSTRUING SEC. 5 OF THE
CLAYTON ACT  ...  AS NOT PERMITTING:  (A) THE ADMISSION IN THE INSTANT
CASE OF THE INDICTMENT IN THE ANTECEDENT CRIMINAL CASE AGAINST
RESPONDENTS, NOR (B) THE JUDGMENT THEREIN TO BE USED AS EVIDENCE THAT
THE CONSPIRACY OF WHICH RESPONDENTS HAD BEEN CONVICTED OCCASIONED EMICH
MOTORS' CANCELLATION."    IN CONSIDERING THE APPLICATION OF SEC. 5 IN
THIS CASE WE ARE CONFRONTED WITH FIVE DIFFERING INTERPRETATIONS.  THE
BROADEST CONSTRUCTION IS URGED BY PETITIONERS WHO CONTEND THAT THE
CRIMINAL JUDGMENT IS PRIMA FACIE EVIDENCE THAT EMICH MOTORS' FRANCHISES
WERE CANCELLED PURSUANT TO THE UNLAWFUL CONSPIRACY, AND THAT THE ENTIRE
RECORD IN THE CRIMINAL CASE SHOULD BE ADMISSIBLE IN THIS ACTION.  THE
VIEW OF THE TRIAL JUDGE DIFFERS ONLY IN THAT HE WOULD NOT PERMIT THE
RECORD IN THE CRIMINAL CASE, BEYOND THE INDICTMENT, VERDICT AND
JUDGMENT, TO GO TO THE JURY.  THE UNITED STATES AS AMICUS CURIAE TAKES
A MORE CONTRACTED POSITION, URGING IN ITS BRIEF THAT THE JUDGMENT IS
PRIMA FACIE EVIDENCE OF THE CONSPIRACY AND ALSO OF THE PERFORMANCE OF
SUCH ACTS IN ACCOMPLISHING IT AS THE JURY IN THE CRIMINAL CASE, IN
RENDERING A VERDICT OF GUILTY, NECESSARILY FOUND TO HAVE OCCURRED, THE
LATTER TO BE DETERMINED BY THE TRIAL JUDGE IN THE TREBLE-DAMAGE SUIT
FROM THE ENTIRE RECORD IN THE CRIMINAL CASE.  IN ITS VIEW THE TRIAL
COURT UNDER APPROPRIATE INSTRUCTIONS MAY SUBMIT THE CRIMINAL PLEADINGS
TO THE JURY IN ORDER TO ASSIST IT IN UNDERSTANDING THE CHARGE AS TO
WHAT WAS DETERMINED BY THE CRIMINAL CONVICTION.  THE COURT OF APPEALS
CONSTRUES THE SECTION STILL MORE NARROWLY, HOLDING THE JUDGMENT PRIMA
FACIE EVIDENCE ONLY OF CONSPIRACY BY RESPONDENTS.  IT CONCLUDES THAT
NONE OF THE RECORD IN THE CRIMINAL CASE SHOULD BE EXHIBITED TO THE
JURY, ALTHOUGH THE TRIAL JUDGE MAY EXAMINE IT "AS AN AID IN DETERMINING
OR DEFINING THE ISSUES PRESENTED BY THE EARLIER CASE  ...  "  181 F.2D
AT 76.  FINALLY, RESPONDENTS CONTEND THAT THE INDICTMENT CHARGED A
SINGLE CONSPIRACY TO PERFORM SOME TWENTY-SIX DIFFERENT ACTS; THAT SINCE
THE GOVERNMENT DID NOT OFFER EVIDENCE TO SUPPORT ALL OF THE ACTS AND
WAS REQUIRED TO PROVE ONLY ONE OF THEM, IT IS IMPOSSIBLE UPON A GENERAL
VERDICT OF GUILTY TO DETERMINE ON WHICH OF THE VARIOUS ACTS THE JURY
BASED ITS VERDICT; THAT CONSEQUENTLY THE JUDGMENT HAS NO RELEVANCE
HERE. 

               IV. 

RECOMMENDATION BY PRESIDENT WILSON THAT CONGRESS "AGREE IN GIVING
PRIVATE INDIVIDUALS  ...  THE RIGHT TO FOUND THEIR (ANTITRUST) SUITS
FOR REDRESS UPON THE FACTS AND JUDGMENTS PROVED AND ENTERED IN SUITS BY
THE GOVERNMENT WHERE THE GOVERNMENT HAS  ...  SUED THE COMBINATIONS
COMPLAINED OF AND WON ITS SUIT  ...  "  51 CONG. REC. 1964. 
CONGRESSIONAL REPORTS AND DEBATES ON THE PROPOSAL WHICH ULTIMATELY
BECAME SEC. 5 REFLECT A PURPOSE TO MINIMIZE THE BURDENS OF LITIGATION
FOR INJURED PRIVATE SUITORS BY MAKING AVAILABLE TO THEM ALL MATTERS
PREVIOUSLY ESTABLISHED BY THE GOVERNMENT IN ANTITRUST ACTIONS.  SEE
H.R. REP. NO. 627, 63D CONG., 2D SESS. 14; S. REP. NO. 698, 63D CONG.,
2D SESS. 45; 51 CONG. REC. 9270, 9490, 13851.  THE INTENDED APPLICATION
AND EXTENT OF SUCH EVIDENTIARY BENEFITS IS NOT REVEALED BY LEGISLATIVE
MATERIALS, EXCEPT THAT THEY SHOULD FOLLOW EQUALLY FROM PRIOR CRIMINAL
PROSECUTIONS AND EQUITY PROCEEDINGS BY THE GOVERNMENT.  BY ITS TERMS,
HOWEVER, SEC. 5 MAKES A PRIOR FINAL JUDGMENT OR DECREE IN FAVOR OF THE
UNITED STATES AVAILABLE TO A PRIVATE SUITOR AS PRIMA FACIE EVIDENCE OF
"ALL MATTERS RESPECTING WHICH" THE JUDGMENT "WOULD BE AN ESTOPPEL"
BETWEEN THE DEFENDANTS AND THE UNITED STATES.  WE THINK THAT CONGRESS
INTENDED TO CONFER, SUBJECT ONLY TO A DEFENDANT'S ENJOYMENT OF ITS DAY
IN COURT AGAINST A NEW PARTY, AS LARGE AN ADVANTAGE AS THE ESTOPPEL
DOCTRINE WOULD AFFORD HAD THE GOVERNMENT BROUGHT SUIT. 

THE EVIDENTIARY USE WHICH MAY BE MADE UNDER SEC. 5 OF THE PRIOR
CONVICTION OF RESPONDENTS IS THUS TO BE DETERMINED BY REFERENCE TO THE
GENERAL DOCTRINE OF ESTOPPEL.  AS THIS COURT HAS OBSERVED, THAT
"PRINCIPLE IS AS APPLICABLE TO THE DECISIONS OF CRIMINAL COURTS AS TO
THOSE OF CIVIL JURISDICTION."  FRANK V. MANGUM, 237 U.S. 309,
334(1915); SEALFON V. UNITED STATES, 332 U.S. 575, 578(1948).  IT IS
WELL ESTABLISHED THAT A PRIOR CRIMINAL CONVICTION MAY WORK AN ESTOPPEL
IN FAVOR OF THE GOVERNMENT IN A SUBSEQUENT CIVIL PROCEEDING.  UNITED
STATES V. GREATER NEW YORK LIVE POULTRY CHAMBER OF COMMERCE, 53 F.2D
518(S.D.N.Y. 1931), AFFIRMED SUB NOM. LOCAL 167 V. UNITED STATES, 291
U.S. 293(1934); FARLEY V. PATTERSON, 166 APP. DIV. 358, 152 N.Y. SUPP.
59(1915); SEE STATE V. ADAMS, 72 VT. 253, 47 A. 779(1900); 2 FREEMAN,
JUDGMENTS (5TH ED. 1925), SEC. 657.  SUCH ESTOPPEL EXTENDS ONLY TO
QUESTIONS "DISTINCTLY PUT IN ISSUE AND DIRECTLY DETERMINED" IN THE
CRIMINAL PROSECUTION.  SEE FRANK V. MANGUM, SUPRA, AT 334; UNITED
STATES V. MEYERSON, 24 F.2D 855, 856(S.D.N.Y. 1928).  IN THE CASE OF A
CRIMINAL CONVICTION BASED ON A JURY VERDICT OF GUILTY, ISSUES WHICH
WERE ESSENTIAL TO THE VERDICT MUST BE REGARDED AS HAVING BEEN
DETERMINED BY THE JUDGMENT.  CF. COMMONWEALTH V. EVANS, 101 MASS.
25(1869).  ACCORDINGLY, WE THINK PLAINTIFFS ARE ENTITLED TO INTRODUCE
THE PRIOR JUDGMENT TO ESTABLISH PRIMA FACIE ALL MATTERS OF FACT AND LAW
NECESSARILY DECIDED BY THE CONVICTION AND THE VERDICT ON WHICH IT WAS
BASED. 

THE DIFFICULT PROBLEM, OF COURSE, IS TO DETERMINE WHAT MATTERS WERE
ADJUDICATED IN THE ANTECEDENT SUIT.  A GENERAL VERDICT OF THE JURY OR
JUDGMENT OF THE COURT WITHOUT SPECIAL FINDINGS DOES NOT INDICATE WHICH
OF THE MEANS CHARGED IN THE INDICTMENT WERE FOUND TO HAVE BEEN USED IN
EFFECTUATING THE CONSPIRACY.  AND SINCE ALL OF THE ACTS CHARGED NEED
NOT BE PROVED FOR CONVICTION, UNITED STATES V. SOCONY-VACUUM OIL CO.,
310 U.S. 150(1940), SUCH A VERDICT DOES NOT ESTABLISH THAT DEFENDANTS
USED ALL OF THE MEANS CHARGED OR ANY PARTICULAR ONE.  UNDER THESE
CIRCUMSTANCES WHAT WAS DECIDED BY THE CRIMINAL JUDGMENT MUST BE
DETERMINED BY THE TRIAL JUDGE HEARING THE TREBLEDAMAGE SUIT, UPON AN
EXAMINATION OF THE RECORD, INCLUDING THE PLEADINGS, THE EVIDENCE
SUBMITTED, THE INSTRUCTIONS UNDER WHICH THE JURY ARRIVED AT ITS
VERDICT, AND ANY OPINIONS OF THE COURTS.  SEALFON V. UNITED STATES,
SUPRA; CF. OKLAHOMA V. TEXAS, 256 U.S. 70(1921).  FN6 

IN THE CRIMINAL CASE IT WAS THE COURT OF APPEALS' UNDISTURBED
DETERMINATION, WHICH WE ACCEPT HERE, THAT THE JURY VERDICT WAS FIRMLY
ROOTED IN A FINDING OF COERCIVE CONDUCT ON THE PART OF RESPONDENTS
TOWARD GENERAL MOTORS DEALERS TO FORCE THE USE OF GMAC FACILITIES. 
THAT COURT, IN COMMENTING ON THE SUFFICIENCY OF THE EVIDENCE, SAID THAT
"THE JURY FINDING OF COERCION IS SUPPORTED BY THE EVIDENCE.  THE
COERCIVE PRACTICES WERE MANY AND VARIED  ...  AND DIRECTLY AIMED TO
COMPEL DEALER-PURCHASERS TO USE GMAC IN FINANCING THE WHOLESALE
PURCHASE AND RETAIL SALE OF GENERAL MOTORS CARS.  ...  UNDOUBTEDLY THE
JURY WAS WARRANTED IN ATTACHING THE COERCION LABEL TO THE ACTION THUS
ADOPTED BY THE APPELLANTS."  UNITED STATES V. GENERAL MOTORS CORP., 121
F.2D 376, 397(C.A.7TH CIR. 1941).  THE SAME CONCLUSION WAS REACHED BY
THIS COURT IN FORD MOTOR CO. V. UNITED STATES, 335 U.S. 303(1948),
WHERE IT WAS REQUIRED FOR ANOTHER PURPOSE TO DETERMINE WHAT WAS
NECESSARILY FOUND BY THE JURY VERDICT IN THE CRIMINAL PROCEEDING
AGAINST GENERAL MOTORS AND GMAC.  FN7 

WE ARE, THEREFORE, OF OPINION THAT THE CRIMINAL JUDGMENT WAS PRIMA
FACIE EVIDENCE OF THE GENERAL CONSPIRACY FOR THE PURPOSE OF
MONOPOLIZING THE FINANCING OF GENERAL MOTORS CARS, AND ALSO OF ITS
EFFECTUATION BY COERCING GENERAL MOTORS DEALERS TO USE GMAC.  TO
ESTABLISH THEIR PRIMA FACIE CASE IT THEREFORE WAS NECESSARY FOR
PETITIONERS ONLY TO INTRODUCE, IN ADDITION TO THE CRIMINAL JUDGMENT,
EVIDENCE OF THE IMPACT OF THE CONSPIRACY ON THEM, SUCH AS THE
CANCELLATION OF THEIR FRANCHISES AND THE PURPOSE OF GENERAL MOTORS IN
CANCELLING THEM, AND EVIDENCE OF ANY RESULTING DAMAGES.  FN8  FROM THIS
IT FOLLOWS THAT THE COURT OF APPEALS WAS IN ERROR WHEN IT HELD THAT THE
JUDGMENT WAS PRIMA FACIE EVIDENCE ONLY OF A CONSPIRACY BY RESPONDENTS. 

WHAT ISSUES WERE DECIDED BY THE FORMER GOVERNMENT LITIGATION IS, OF
COURSE, A QUESTION OF LAW AS TO WHICH THE COURT MUST INSTRUCT THE
JURY.  IT IS THE TASK OF THE TRIAL JUDGE TO MAKE CLEAR TO THE JURY THE
ISSUES THAT WERE DETERMINED AGAINST THE DEFENDANT IN THE PRIOR SUIT,
AND TO LIMIT TO THOSE ISSUES THE EFFECT OF THAT JUDGMENT AS EVIDENCE IN
THE PRESENT ACTION.  AS TO THE MANNER IN WHICH SUCH EXPLANATION SHOULD
BE MADE, NO MECHANICAL RULE CAN BE LAID DOWN TO CONTROL THE TRIAL
JUDGE, WHO MUST TAKE INTO ACCOUNT THE CIRCUMSTANCES OF EACH CASE.  HE
MUST BE FREE TO EXERCISE "A WELL-ESTABLISHED RANGE OF JUDICIAL
DISCRETION."  NARDONE V. UNITED STATES, 308 U.S. 338, 342(1939).  HE IS
NOT PRECLUDED FROM RESORTING TO SUCH PORTIONS OF THE RECORD, INCLUDING
THE PLEADINGS AND JUDGMENT, IN THE ANTECEDENT CASE AS HE MAY FIND
NECESSARY OR APPROPRIATE TO USE IN PRESENTING TO THE JURY A CLEAR
PICTURE OF THE ISSUES DECIDED THERE AND RELEVANT TO THE CASE ON TRIAL. 
CF. EASTMAN KODAK CO. V. SOUTHERN PHOTO MATERIAL CO., 295 F. 98,
101(C.A.5TH CIR. 1923), AFFIRMED 273 U.S. 359(1927).  A SIMILAR
DISCRETION MUST BE EXERCISED IN APPROVING THE ATTACHMENT OF A COPY OF
THE INDICTMENT AS AN EXHIBIT TO THE COMPLAINT. 

IN SUMMARY THE TRIAL JUDGE SHOULD (1) EXAMINE THE RECORD OF THE
ANTECEDENT CASE TO DETERMINE THE ISSUES DECIDED BY THE JUDGMENT; (2) IN
HIS INSTRUCTIONS TO THE JURY RECONSTRUCT THAT CASE IN THE MANNER AND TO
THE EXTENT HE DEEMS NECESSARY TO ACQUAINT THE JURY FULLY WITH THE
ISSUES DETERMINED THEREIN; AND (3) EXPLAIN THE SCOPE AND EFFECT OF THE
FORMER JUDGMENT ON THE CASE AT TRIAL.  THE COURT MAY, IN THE INTEREST
OF CLARITY, SO INFORM THE JURY AT THE TIME THE JUDGMENT IN THE PRIOR
ACTION IS OFFERED IN EVIDENCE; OR HE MAY SO INSTRUCT AT A LATER TIME
IF, IN HIS DISCRETION, THE ENDS OF JUSTICE WILL BE SERVED. 

THE CASE IS REMANDED TO THE COURT OF APPEALS WITH DIRECTIONS TO
MODIFY ITS JUDGMENT TO CONFORM WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  38 STAT. 731, 15 U.S.C. SEC. 15. 

FN2  26 STAT. 209, 15 U.S.C. SEC. 1. 

FN3  38 STAT. 731, 15 U.S.C. SEC. 16. 

FN4  UNITED STATES V. GENERAL MOTORS CORP., 121 F.2D 376, 383(C.A.7TH
CIR. 1941). 

FN5  UNITED STATES V. GENERAL MOTORS CORP., 121 F.2D 376, 396(C.A.7TH
CIR. 1941). 

FN6  SEE ALSO MCLAREN, THE DOCTRINE OF RES JUDICATA AS APPLIED TO THE
TRIAL OF CRIMINAL CASES, 10 WASH. L. REV. 198, 200(1935). 

FN7  IN THE FORD CASE IT WAS STATED THAT THE "PLAIN EFFECT" OF THE
INSTRUCTIONS IN THE CRIMINAL ACTION AGAINST GENERAL MOTORS AND GMAC WAS
"TO DRAW A LINE BETWEEN SUCH PRACTICES AS CANCELLATION OF A DEALER'S
CONTRACT, OR REFUSAL TO RENEW IT, OR DISCRIMINATION IN THE SHIPMENT OF
AUTOMOBILES, AS A MEANS OF INFLUENCING DEALERS TO USE GMAC, ALL OF
WHICH FALL WITHIN THE COMMON UNDERSTANDING OF 'COERCION,' AND OTHER
PRACTICES FOR WHICH 'PERSUASION,' 'EXPOSITION' OR 'ARGUMENT' ARE FAIR
CHARACTERIZATIONS.  ...  THE TRIAL JUDGE USED THE WORD 'COERCION' TO
SUMMARIZE PRACTICES WHICH, IF THE JURY FOUND THEM TO EXIST, WOULD CALL
FOR A VERDICT AGAINST GENERAL MOTORS.  HE USED THE WORDS 'PERSUASION,'
'EXPOSITION' AND 'ARGUMENT' TO DESCRIBE CONDUCT WHICH, IN COMMON USAGE,
IS NOT 'COERCION' AND THEREFORE WOULD NOT SUPPORT SUCH A VERDICT. 
NOTHING IN OTHER PORTIONS OF THE JUDGE'S CHARGE ERASES OR BLURS THIS
LINE OF DISTINCTION."  335 U.S. AT 316-319.  RELEVANT PORTIONS OF THE
INSTRUCTIONS ARE SET FORTH AT P. 316, N. 3. 

FN8 IN DECIDING THAT UNDER SEC. 5 THE CRIMINAL JUDGMENT AGAINST
RESPONDENTS MAY BE ADMITTED AS PRIMA FACIE EVIDENCE ONLY OF THE FACT OF
CONSPIRACY AND OF THE USE OF COERCIVE METHODS IN CARRYING IT OUT, WE DO
NOT INTEND TO PRECLUDE ITS ADMISSION FOR SUCH OTHER PURPOSES, APART
FROM SEC. 5, AS THE GENERAL LAW OF EVIDENCE MAY PERMIT.  PETITIONERS
CONTEND THAT THE JUDGMENT MAY BE CONSIDERED BY THE JURY AS EVIDENCE OF
RESPONDENTS' INTENTION IN CANCELLING THE EMICHS' FRANCHISES.  CF.
WIGMORE, EVIDENCE (3D ED. 1940), SECS. 302-304; AMERICAN MEDICAL
ASSOCIATION V. UNITED STATES, 76 U.S. APP. D.C. 70, 87-89, 130 F.2D
233, 250-252(C.A.D.C. CIR. 1942), AFFIRMED 317 U.S. 519(1943).  WHETHER
THIS CONTENTION IS CORRECT AND, IF SO, WHETHER SUCH EVIDENCE WOULD
ESTABLISH PRIMA FACIE AN ILLEGAL MOTIVE ARE QUESTIONS BEYOND THE SCOPE
OF OUR PRESENT REVIEW. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















MOORE V. CHESAPEAKE & O.R. CO., 340 U.S. 573 


NO. 318.  ARGUED JANUARY 4, 1951.  - REARGUED JANUARY 10, 1951.  -
DECIDED FEBRUARY 26, 1951.  - 184 F.2D 176, AFFIRMED. 


IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT TO RECOVER
FOR THE DEATH OF A BRAKEMAN, THERE WAS NO EVIDENCE OF NEGLIGENCE ON THE
PART OF THE RAILROAD, AND THE DISTRICT COURT PROPERLY SUSTAINED THE
MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.  PP. 573-578. 

MOORE, ADMINISTRATRIX, V. CHESAPEAKE & OHIO RAILWAY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

THE CASE IS STATED IN THE OPINION.  THE JUDGMENT BELOW IS AFFIRMED,
P. 578. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THIS ACTION, BROUGHT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT  FN1
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA ON BEHALF OF A SURVIVING WIDOW AND CHILDREN, CHARGED
NEGLIGENCE AGAINST RESPONDENT RAILROAD IN THE DEATH OF PETITIONER'S
DECEDENT, WHO WAS ACTING IN THE COURSE OF HIS EMPLOYMENT AS A BRAKEMAN
FOR RESPONDENT AT THE TIME OF HIS DEATH.  THE CASE WAS TRIED BEFORE A
JURY.  AT THE CONCLUSION OF ALL THE EVIDENCE, RESPONDENT MOVED FOR A
DIRECTED VERDICT ON THE GROUND, AMONG OTHERS, THAT RESPONDENT WAS NOT
SHOWN TO HAVE BEEN NEGLIGENT.  THE DISTRICT COURT RESERVED DECISION,
PURSUANT TO RULE 50 OF THE FEDERAL RULES OF CIVIL PROCEDURE, AND
SUBMITTED THE CASE TO THE JURY, WHICH RETURNED A VERDICT FOR
PETITIONER.  RESPONDENT THEN RENEWED ITS CONTENTION BY MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT, WHICH WAS SUSTAINED, AND THE
ACTION WAS DISMISSED ON THE MERITS.  THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT AFFIRMED, 184 F.2D 176, AND WE GRANTED CERTIORARI TO
DETERMINE WHETHER THE PROVINCE OF THE JURY HAD BEEN INVADED BY THE
ACTION OF THE DISTRICT COURT.  340 U.S. 874. 

ON SEPTEMBER 25, 1948, PETITIONER'S DECEDENT WAS EMPLOYED BY
RESPONDENT AS A BRAKEMAN IN RESPONDENT'S SWITCHING YARDS AT RICHMOND,
VIRGINIA.  THE DAY WAS FAIR.  AT ABOUT 3:50 P.M., THE CREW WITH WHICH
DECEDENT WAS WORKING UNDERTOOK ITS FIRST CAR MOVEMENT OF THE DAY.  AN
ENGINE AND TENDER WERE HEADED INTO TRACK 12 AND THE FRONT END OF THE
ENGINE WAS COUPLED ONTO 33 LOADED FREIGHT CARS WHICH WERE TO BE MOVED
OUT INITIALLY UPON THE STRAIGHT TRACK REFERRED TO AS THE LADDER TRACK. 
THE SWITCH AT THE JUNCTION OF TRACK 12 AND THE LADDER TRACK WAS
PROPERLY ALIGNED FOR THE TRAIN TO PASS ONTO THE LADDER TRACK.  WHO
ALIGNED THE SWITCH DOES NOT APPEAR. 

DECEDENT GAVE THE SIGNAL FOR THE ENGINE TO BACK OUT OF TRACK 12 WITH
THE CARS.  IT MOVED OUT IN A WESTERLY DIRECTION, WITH THE REAR OF THE
TENDER AS THE FRONT OF THE MOVING TRAIN.  DECEDENT WAS STANDING ON A
FOOTBOARD AT THE REAR OF THE TENDER, HIS BACK TO THE TENDER; THE OUTER
EDGE OF THE FOOTBOARD WAS ABOUT TEN INCHES IN FROM THE OUTER EDGE OF
THE TENDER AND ABOUT A FOOT ABOVE THE RAIL.  THE ENGINEER WAS IN HIS
SEAT ON THE SAME SIDE OF THE TRAIN AS THE FOOTBOARD ON WHICH DECEDENT
WAS STANDING.  THE ENGINEER WAS TURNED IN THE SEAT AND LEANING OUT THE
SIDE CAB WINDOW, LOOKING IN THE DIRECTION IN WHICH THE TRAIN WAS
MOVING.  DECEDENT'S DUTY AS HE RODE ON THE FOOTBOARD WAS TO GIVE
SIGNALS TO THE ENGINEER, WHO TESTIFIED THAT HE COULD AT ALL TIMES SEE
THE EDGE OF THE ARM AND SHOULDER OF DECEDENT.  TO BE THUS SEEN AND IN A
POSITION TO GIVE SIGNALS, DECEDENT HAD TO EXTEND OUTWARD BEYOND THE
EDGE OF THE TENDER, SUPPORTING HIMSELF PARTLY BY A HANDRAIL, OTHERWISE
THE TENDER, THE TOP OF WHICH WAS EIGHT FEET SEVEN INCHES ABOVE THE
FOOTBOARD, WOULD HAVE OBSTRUCTED THE ENGINEER'S VIEW OF HIM
ALTOGETHER. 

THE ENGINEER TESTIFIED THAT AS THE TRAIN APPROACHED SWITCH 12 AT
ABOUT FIVE MILES AN HOUR, HAVING MOVED TEN OR TWELVE CAR LENGTHS, HE
SAW DECEDENT SLUMP AS IF HIS KNEES HAD GIVEN WAY, THEN RIGHT HIMSELF,
THEN TUMBLE FORWARD IN A SOMERSAULT TOWARD THE OUTSIDE OF THE TRACK. 
THE ENGINEER TESTIFIED THAT HE THEN MADE AN EMERGENCY STOP IN AN
UNSUCCESSFUL EFFORT TO AVOID INJURING DECEDENT.  THE TRAIN RAN THE
LENGTH OF THE TENDER AND ENGINE AND ABOUT A CAR LENGTH AND A HALF
BEFORE IT STOPPED AT A POINT ABOUT AN ENGINE OR CAR LENGTH PAST THE
SWITCH ON THE LADDER TRACK.  DECEDENT DIED IMMEDIATELY OF THE INJURIES
RECEIVED. 

TO RECOVER UNDER THE ACT, IT WAS INCUMBENT UPON PETITIONER TO PROVE
NEGLIGENCE OF RESPONDENT WHICH CAUSED THE FATAL ACCIDENT.  TENNANT V.
PEORIA & P.U.R. CO., 321 U.S. 29, 32.  THE NEGLIGENCE SHE ALLEGED WAS
THAT RESPONDENT'S ENGINEER MADE A SUDDEN AND UNEXPECTED STOP WITHOUT
WARNING, "THEREBY CAUSING DECEDENT TO BE THROWN FROM A POSITION OF
SAFETY ON THE REAR OF THE TENDER" INTO THE PATH OF THE TRAIN. 

IT IS UNDISPUTED THAT ONLY ONE STOP OF THE TRAIN WAS MADE AND THAT A
SUDDEN STOP WITHOUT WARNING.  THE ENGINEER WAS THE ONLY WITNESS TO THE
ACCIDENT AND WAS CALLED TO TESTIFY BY PETITIONER.  HE TESTIFIED THAT HE
SAW DECEDENT FALL FROM THE TENDER AND THAT HE MADE AN EMERGENCY STOP IN
AN ATTEMPT TO AVOID INJURING HIM.  HE TESTIFIED THAT HE RECEIVED NO
SIGNAL TO STOP AND HAD NO REASON TO STOP UNTIL HE SAW DECEDENT FALL. 
WHEN HIS ATTENTION WAS DIRECTED TO THE POINT, THE ENGINEER NEVER
WAVERED IN HIS TESTIMONY THAT DECEDENT WAS CONTINUOUSLY IN HIS VIEW AND
IN A POSITION TO GIVE SIGNALS UP TO THE TIME HE WAS SEEN TO FALL AND
THE EMERGENCY STOP WAS MADE. 

PETITIONER ATTEMPTS TO AVOID THE EFFECT OF THIS BY POINTING TO
STATEMENTS OF THE ENGINEER WHICH ALLEGEDLY CONTRADICT HIS TESTIMONY
THAT DECEDENT WAS CONTINUOUSLY IN HIS VIEW.  PETITIONER RELIES ON
TESTIMONY AND MEASUREMENTS OF AN EXPERT WITNESS, AND UPON THE FACT THAT
THE JURY WAS PERMITTED TO VIEW THE ENGINE AND TENDER, TO SUPPORT THE
ALLEGED CONTRADICTION.  AS A CONSEQUENCE, IT IS ASSERTED, THE JURY WAS
ENTITLED TO DISBELIEVE THE ENGINEER'S VERSION OF THE ACCIDENT AND TO
ACCEPT PETITIONER'S. 

TRUE, IT IS THE JURY'S FUNCTION TO CREDIT OR DISCREDIT ALL OR PART OF
THE TESTIMONY.  BUT DISBELIEF OF THE ENGINEER'S TESTIMONY WOULD NOT
SUPPLY A WANT OF PROOF.  BUNT V. SIERRA BUTTE GOLD MNG.  CO., 138 U.S.
483, 485.  NOR WOULD THE POSSIBILITY ALONE THAT THE JURY MIGHT
DISBELIEVE THE ENGINEER'S VERSION MAKE THE CASE SUBMISSIBLE TO IT. 

THE BURDEN WAS UPON PETITIONER TO PROVE THAT DECEDENT FELL AFTER THE
TRAIN STOPPED WITHOUT WARNING, WHICH WAS THE ACT OF NEGLIGENCE SHE
CHARGED.  HER EVIDENCE SHOWED HE FELL BEFORE THE TRAIN STOPPED.  THE
ONLY EVIDENCE WHICH PETITIONER CAN GLEAN FROM THIS RECORD TO SUPPORT
HER CHARGE IS THE ENGINEER'S TESTIMONY THAT THERE WAS NO ONE AROUND THE
SWITCH AS THE TRAIN APPROACHED IT, AND THAT HE DID NOT KNOW WHETHER
"THEY" INTENDED TO TAKE ALL OF THE 33 CARS OUT OF THE SWITCH AT ONE
TIME, OR TO STOP AND CUT OFF SOME OF THEM.  FN2  FROM THIS IT IS SAID A
JURY MIGHT REASONABLY INFER THAT THE ENGINEER DECIDED TO MAKE AND DID
MAKE AN EMERGENCY STOP WHICH THREW DECEDENT FROM THE TENDER.  HOWEVER,
THE ENGINEER'S TESTIMONY, APPEARING AT THE VERY SAME PAGE OF THE
TRANSCRIPT AS THE STATEMENT RELIED ON, WAS THAT HE WORKED BY SIGNALS;
THAT HE HAD RECEIVED NO SIGNAL TO STOP OR DO ANYTHING; THAT IN THE
EVENT HE DID NOT RECEIVE A SIGNAL HE WOULD "(KEEP) PULLING THE CARS ON
BACK" UNTIL HE RECEIVED A SIGNAL, UNTIL HE "CLEARED THE SWITCH" -
"(PROBABLY) BEYOND."  FN3  WE DO NOT THINK THAT THE ISOLATED PORTION OF
THE ENGINEER'S TESTIMONY RELIED ON BY PETITIONER PERMITS AN INFERENCE
OF NEGLIGENCE WHEN PLACED IN ITS SETTING OF UNCONTRADICTED AND
UNEQUIVOCAL TESTIMONY TOTALLY AT VARIANCE WITH SUCH AN INFERENCE. 

HENCE, ALL THE EVIDENCE SHOWS IS THAT DECEDENT FELL BEFORE THE TRAIN
STOPPED.  IF ONE DOES NOT BELIEVE THE ENGINEER'S TESTIMONY THAT HE
STOPPED AFTER - INDEED, BECAUSE OF - THE FALL, THEN THERE IS NO
EVIDENCE AS TO WHEN DECEDENT FELL.  THERE WOULD STILL BE A FAILURE OF
PROOF. 

TO SUSTAIN PETITIONER, ONE WOULD HAVE TO INFER FROM NO EVIDENCE AT
ALL THAT THE TRAIN STOPPED WHERE AND WHEN IT DID FOR NO PURPOSE AT ALL,
CONTRARY TO ALL GOOD RAILROADING PRACTICE, PRIOR TO THE TIME DECEDENT
FELL, AND THEN INFER THAT DECEDENT FELL BECAUSE THE TRAIN STOPPED. 
THIS WOULD BE SPECULATION RUN RIOT.  SPECULATION CANNOT SUPPLY THE
PLACE OF PROOF.  GALLOWAY V. UNITED STATES, 319 U.S. 372, 395. 

SINCE THERE WAS NO EVIDENCE OF NEGLIGENCE, THE COURT PROPERLY
SUSTAINED THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.  THE
JUDGMENT IS AFFIRMED. 

FN1  35 STAT. 65, AS AMENDED, 45 U.S.C. SECS. 51 ET SEQ. 

FN2  "Q.  WERE YOU GOING TO TAKE ALL OF THOSE THIRTY-EIGHT CARS OUT
AT ONE TIME THROUGH THAT SWITCH? 

"A.  I DON'T KNOW ABOUT THAT.  I WORK BY SIGNALS.  I DON'T KNOW
WHETHER THEY INTENDED TO PUT THEM ALL OUT AND SWITCH THEM OR TO STOP
AND CUT PART OF THEM OFF."  R. 30. 

FN3  SUPRA, N. 2; 

"Q.  HAD YOU RECEIVED ANY SIGNAL AT THAT TIME TO STOP OR TO DO
ANYTHING - CUT OFF ANY OF THE CARS? 

"A.  NO, SIR, I HAD NOT. 

"Q.  WHAT WERE YOU GOING TO DO IN THE EVENT YOU DIDN'T RECEIVE ANY
FURTHER SIGNALS EITHER FROM THE CONDUCTOR OR FROM MR. MOORE OR FROM
ANYBODY ELSE? 

"A.  KEEP PULLING THE CARS ON BACK UNTIL I RECEIVED A SIGNAL. 

"Q.  AND UNTIL YOU CLEARED THE SWITCH, UNTIL YOU CLEARED NO. 12
SWITCH? 

"A.  YES, SIR. 

"Q.  YOU KEEP - 

"A.  PROBABLY BEYOND. 

"Q.  YOU KEEP ON GOING? 

"A.  YES."  R. 30. 

MR. JUSTICE FRANKFURTER WOULD DISMISS THIS WRIT AS IMPROVIDENTLY
GRANTED, FOR REASONS SET FORTH BY HIM IN CARTER V. ATLANTA & ST.
ANDREWS BAY R. CO., 338 U.S. 430, 437.  SEE AFFOLDER V. N.Y., C. & ST.
L.R. CO., 339 U.S. 96, 101. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

THE COMPLAINT IN THIS CASE ALLEGED THAT PETITIONER'S HUSBAND, WHILE
PERFORMING HIS DUTIES AS A RAILROAD BRAKEMAN, WAS THROWN FROM A
FOOTBOARD AT THE BACK OF A TENDER AND KILLED AS A RESULT OF A SUDDEN
AND UNEXPECTED STOP MADE BY THE ENGINEER.  THAT THESE ALLEGATIONS, IF
PROVED, SUPPORTED THE JURY'S FINDING OF NEGLIGENCE IS NOT AND COULD NOT
BE DENIED.  I HAVE NO DOUBT BUT THAT THE FOLLOWING EVIDENCE WAS
SUFFICIENT TO JUSTIFY SUCH A FINDING AND THE VERDICT FOR PETITIONER: 

DECEDENT WAS AN EXPERIENCED BRAKEMAN WITH RESPONDENT RAILROAD, HAVING
SERVED IN THAT CAPACITY FOR ABOUT SEVEN YEARS.  ON THE DAY OF THE
ACCIDENT, HIS DUTY REQUIRED HIM TO RIDE THE FOOTBOARD ON THE REAR OF A
TENDER WHICH WAS BEING MOVED BACKWARDS BY AN ENGINE COUPLED TO 33
LOADED FREIGHT CARS.  THE ENGINEER TESTIFIED THAT HE SUDDENLY THREW THE
ENGINE INTO REVERSE AND MADE AN EMERGENCY STOP WITHOUT WARNING. 
DECEDENT'S BADLY BROKEN AND MUTILATED BODY WAS FOUND LYING BESIDE THE
TRACK.  HE HAD DIED AS A RESULT OF HIS INJURIES. 

UNLESS WE ARE TO REQUIRE THE ELEMENT OF PROXIMATE CAUSE TO BE PROVED
BY EYE-WITNESS TESTIMONY, A REASONABLE JURY CERTAINLY COULD INFER FROM
THE FOREGOING FACTS THAT THE SUDDEN STOPPING OF THE ENGINE THREW THE
DECEDENT TO HIS DEATH.  YET THE COURT APPARENTLY IGNORES THIS STRONG
CIRCUMSTANTIAL EVIDENCE BY RELYING UPON THE ENGINEER'S TESTIMONY THAT
HE MADE THE SUDDEN STOP AFTER HE SAW THE DECEDENT "SOMERSAULT" OFF THE
TENDER.  OF COURSE, HAD THE JURY BELIEVED BOTH THAT THE ENGINEER
STOPPED THE TRAIN ABRUPTLY AND THAT HE DID SO AT THE TIME HE SAID HE
DID, IT WOULD HAVE FOUND FOR RESPONDENT.  BUT AS THE COURT CONCEDES,
THE JURY WAS NOT COMPELLED WHOLLY TO ACCEPT OR WHOLLY TO REJECT THE
ENGINEER'S VERSION.  IT WAS ENTITLED TO CREDIT PART OF HIS TESTIMONY
AND DISCREDIT THE BALANCE, ESPECIALLY SINCE THERE WERE NOTICEABLE
INCONSISTENCIES, IMPROBABILITIES AND SELF-INTEREST IN THE ENGINEER'S
STORY AS TO HOW AND WHEN THE FALL OCCURRED.  IF THE JURY REJECTED THE
STATEMENT THAT DECEDENT FELL BEFORE THE ENGINE STOPPED, IT COULD FIND
FOR PETITIONER ON THE BASIS OF THE CIRCUMSTANTIAL EVIDENCE PREVIOUSLY
SET OUT. 

THE TECHNIQUE USED TODAY IN DEPRIVING PETITIONER OF HER VERDICT IS TO
FRAME THE ISSUE IN TERMS OF "WHEN DID THE DECEDENT FALL?"  AND THEN TO
HOLD THAT PETITIONER FAILED TO SUSTAIN THE BURDEN OF PROOF BECAUSE SHE
INTRODUCED NO EYE-WITNESS EVIDENCE ON THIS POINT* .  SUCH A MYOPIC VIEW
LOSES SIGHT OF ALL THE CIRCUMSTANCES FROM WHICH THE TIME AND CAUSE OF
THE FALL CAN BE INFERRED.  WHAT THE RECORD SHOWS IS THAT PETITIONER
TRIED THE CASE ON A THEORY THAT DECEDENT'S FALL RESULTED FROM A SUDDEN
STOPPING OF THE ENGINE, WHILE RESPONDENT ASSERTED THE THEORY THAT THE
FALL WAS DUE TO A HEART ATTACK.  ALTHOUGH THERE WAS SOME SHOWING THAT
DECEDENT HAD BEEN AFFLICTED WITH HEART TROUBLE IN THE PAST, RESPONDENT
FAILED TO PRODUCE ANY EVIDENCE THAT THE BODY WHEN FOUND GAVE
INDICATIONS OF HEART DISEASE.  THE JURY THEREFORE QUITE REASONABLY
REJECTED RESPONDENT'S THEORY FOR LACK OF PROOF.  JUST AS REASONABLY, IT
ACCEPTED THE PETITIONER'S EVIDENCE AS PROVING THE ALLEGATIONS OF HER
COMPLAINT.  IN MY OPINION, THE TAKING OF THIS VERDICT FROM PETITIONER
IS A TOTALLY UNWARRANTED SUBSTITUTION OF A COURT'S VIEW OF THE EVIDENCE
FOR THAT OF A JURY. 

*THE COURT ALSO APPEARS TO BELIEVE THAT PETITIONER SHOULD HAVE PROVED
THE ENGINEER'S PURPOSE IN STOPPING THE TRAIN SO SUDDENLY.  BUT WHATEVER
WAS THE ENGINEER'S PURPOSE, PETITIONER WAS ENTITLED TO RECOVER IN THIS
CASE IF HER HUSBAND'S DEATH WAS CAUSED BY THE SUDDEN, UNEXPECTED STOP. 

I WOULD REVERSE. 
..END :


















NIEMOTKO V. MARYLAND, 340 U.S. 268 


ARGUED OCTOBER 17, 1950.  - DECIDED JANUARY 15, 1951.  - MD. - , 71 A.2D
9, REVERSED. 


APPELLANTS' APPLICATIONS TO A CITY COUNCIL FOR PERMITS TO USE A CITY
PARK FOR BIBLE TALKS WERE DENIED, FOR NO APPARENT REASON EXCEPT THE
COUNCIL'S DISLIKE FOR APPELLANTS AND DISAGREEMENT WITH THEIR VIEWS. 
FOR ATTEMPTING TO HOLD PUBLIC MEETINGS AND MAKE SPEECHES IN THE PARK
WITHOUT PERMITS, THEY WERE CONVICTED ON CHARGES OF DISORDERLY CONDUCT,
ALTHOUGH THERE WAS NO EVIDENCE OF DISORDER, THREAT OF VIOLENCE OR RIOT,
AND THEY HAD CONDUCTED THEMSELVES IN A MANNER BEYOND REPROACH.  THERE
WAS NO ORDINANCE PROHIBITING OR REGULATING THE USE OF THE PARK AND
THERE WERE NO ESTABLISHED STANDARDS FOR THE GRANTING OF PERMITS; BUT
PERMITS CUSTOMARILY HAD BEEN GRANTED FOR SIMILAR PURPOSES, INCLUDING
MEETINGS OF RELIGIOUS AND FRATERNAL ORGANIZATIONS.  HELD:  APPELLANTS
WERE DENIED EQUAL PROTECTION OF THE LAWS, IN THE EXERCISE OF FREEDOM OF
SPEECH AND RELIGION, CONTRARY TO THE FIRST AND FOURTEENTH AMENDMENTS. 
PP. 269-273. 

(A)  THE RIGHT TO EQUAL PROTECTION OF THE LAWS, IN THE EXERCISE OF
THOSE FREEDOMS OF SPEECH AND RELIGION PROTECTED BY THE FIRST AND
FOURTEENTH AMENDMENTS, HAS A FIRMER FOUNDATION THAN THE WHIMS OR
PERSONAL OPINIONS OF A LOCAL GOVERNING BODY.  P. 272. 

(B)  A CONTENTION THAT STATE AND CITY OFFICIALS SHOULD HAVE THE POWER
TO EXCLUDE RELIGIOUS GROUPS, AS SUCH, FROM THE USE OF PUBLIC PARKS WAS
NO JUSTIFICATION WHEN PERMITS HAD ALWAYS BEEN ISSUED FOR THE USE OF THE
PARK BY RELIGIOUS ORGANIZATIONS.  PP. 272-273. 

(C) A CONTENTION THAT THE PARK WAS DESIGNATED AS A SANCTUARY FOR
PEACE AND QUIET WAS NO JUSTIFICATION WHEN ITS USE FOR PATRIOTIC
CELEBRATIONS BY FRATERNAL ORGANIZATIONS WAS PERMITTED.  P. 273. 

(D)  THE LACK OF STANDARDS IN THE LICENSE-ISSUING "PRACTICE" RENDERS
THAT "PRACTICE" A PRIOR RESTRAINT IN CONTRAVENTION OF THE FOURTEENTH
AMENDMENT, AND THE COMPLETELY ARBITRARY AND DISCRIMINATORY REFUSAL TO
GRANT THE PERMITS WAS A DENIAL OF EQUAL PROTECTION.  P. 273. 

(E)  SINCE THE CONVICTIONS WERE BASED UPON THE LACK OF PERMITS WHICH
WERE DENIED UNCONSTITUTIONALLY, THE CONVICTIONS CANNOT STAND.  P. 273. 

NIEMOTKO V. MARYLAND. 

NO. 17.  APPEAL FROM THE CIRCUIT COURT OF HARFORD COUNTY, MARYLAND*
. 

*TOGETHER WITH NO. 18, KELLEY V. MARYLAND, ALSO ON APPEAL FROM THE
SAME COURT. 

FOR ATTEMPTS TO HOLD RELIGIOUS MEETINGS IN A PUBLIC PARK WITHOUT
PERMITS, APPELLANTS WERE CONVICTED OF DISORDERLY CONDUCT UNDER FLACK'S
MD. ANN. CODE, 1939(1947 SUPP.), ART. 27, SEC. 131.  THE MARYLAND COURT
OF APPEALS DECLINED TO REVIEW THEIR CONVICTIONS.   - MD. - , 71 A.2D
9.  ON APPEAL TO THIS COURT, REVERSED, P. 273. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE TWO MEMBERS OF THE RELIGIOUS GROUP KNOWN AS JEHOVAH'S
WITNESSES.  AT THE INVITATION OF LOCAL CORELIGIONISTS, THEY SCHEDULED
BIBLE TALKS IN THE PUBLIC PARK OF THE CITY OF HAVRE DE GRACE,
MARYLAND.  ALTHOUGH THERE IS NO ORDINANCE PROHIBITING OR REGULATING THE
USE OF THIS PARK, IT HAS BEEN THE CUSTOM FOR ORGANIZATIONS AND
INDIVIDUALS DESIRING TO USE IT FOR MEETINGS AND CELEBRATIONS OF VARIOUS
KINDS TO OBTAIN PERMITS FROM THE PARK COMMISSIONER.  IN CONFORMITY WITH
THIS PRACTICE, THE GROUP REQUESTED PERMISSION OF THE PARK COMMISSIONER
FOR USE OF THE PARK ON FOUR CONSECUTIVE SUNDAYS IN JUNE AND JULY,
1949.  THIS PERMISSION WAS REFUSED. 

HAVING BEEN INFORMED THAT AN ELKS' FLAG DAY CEREMONY WAS SCHEDULED
FOR THE FIRST SUNDAY, THE APPLICANTS DID NOT PURSUE THEIR REQUEST FOR
THE USE OF THE PARK FOR THAT PARTICULAR DAY, BUT, INSTEAD, FILED A
WRITTEN REQUEST WITH THE CITY COUNCIL FOR THE FOLLOWING THREE SUNDAYS. 
THIS REQUEST WAS FILED AT THE SUGGESTION OF THE MAYOR, IT APPEARING
THAT UNDER THE CUSTOM OF THE MUNICIPALITY THERE IS A RIGHT OF APPEAL TO
THE CITY COUNCIL FROM THE ACTION OF THE PARK COMMISSIONER.  THE COUNCIL
HELD A HEARING AT WHICH THE REQUEST WAS CONSIDERED.  AT THIS HEARING
THE APPLICANTS AND THEIR ATTORNEY APPEARED.  THE REQUEST WAS DENIED. 

BECAUSE THEY WERE AWAITING THE DECISION OF THE COUNCIL ON THEIR
APPLICATION, THE APPLICANTS TOOK NO FURTHER STEPS ON THE SECOND SUNDAY,
BUT, AFTER THE DENIAL OF THE REQUEST, THEY PROCEEDED TO HOLD THEIR
MEETING ON THE THIRD SUNDAY.  NO SOONER HAD APPELLANT NIEMOTKO OPENED
THE MEETING AND COMMENCED DELIVERING HIS DISCOURSE, THAN THE POLICE,
WHO HAD BEEN ORDERED TO THE PARK BY THE MAYOR, ARRESTED HIM.  AT THE
MEETING HELD IN THE PARK ON THE FOURTH AND FOLLOWING SUNDAY, APPELLANT
KELLEY WAS ARRESTED BEFORE HE BEGAN HIS LECTURE. 

APPELLANTS WERE SUBSEQUENTLY BROUGHT TO TRIAL BEFORE A JURY ON A
CHARGE OF DISORDERLY CONDUCT UNDER THE MARYLAND DISORDERLY CONDUCT
STATUTE.  FLACK'S MD. ANN. CODE, 1939(1947 CUM. SUPP.), ART. 27, SEC.
131.  THEY WERE CONVICTED AND EACH FINED $25 AND COSTS.  UNDER THE
RATHER UNIQUE MARYLAND PROCEDURE, THE JURY IS THE JUDGE OF THE LAW AS
WELL AS THE FACTS.  MD. CONST., ART. XV, SEC. 5; SEE OPINION BELOW,  -
MD. - ,  - , 71 A.2D 9, 11.  THIS MEANS THAT THERE IS NORMALLY NO
APPELLATE REVIEW OF ANY QUESTION DEPENDENT ON THE SUFFICIENCY OF THE
EVIDENCE.  RELYING ON THIS MARYLAND RULE, THE COURT OF APPEALS DECLINED
TO REVIEW THE CASE UNDER ITS NORMAL APPELLATE POWER, AND FURTHER
DECLINED TO TAKE THE CASE ON CERTIORARI, STATING THAT THE ISSUES WERE
NOT "MATTERS OF PUBLIC INTEREST" WHICH MADE IT DESIRABLE TO REVIEW. 
BEING OF OPINION THAT THE CASE PRESENTED SUBSTANTIAL CONSTITUTIONAL
ISSUES, WE NOTED PROBABLE JURISDICTION, THE APPEAL BEING PROPERLY HERE
UNDER 28 U.S.C. SEC. 1257(2). 

IN CASES IN WHICH THERE IS A CLAIM OF DENIAL OF RIGHTS UNDER THE
FEDERAL CONSTITUTION, THIS COURT IS NOT BOUND BY THE CONCLUSIONS OF
LOWER COURTS, BUT WILL REEXAMINE THE EVIDENTIARY BASIS ON WHICH THOSE
CONCLUSIONS ARE FOUNDED.  SEE FEINER V. NEW YORK, DECIDED THIS DAY,
POST, P. 315.  A BRIEF RECITAL OF THE FACTS AS THEY WERE ADDUCED AT
THIS TRIAL WILL SUFFICE TO SHOW WHY THESE CONVICTIONS CANNOT STAND.  AT
THE TIME OF THE ARREST OF EACH OF THESE APPELLANTS, THERE WAS NO
EVIDENCE OF DISORDER, THREATS OF VIOLENCE OR RIOT.  THERE WAS NO
INDICATION THAT THE APPELLANTS CONDUCTED THEMSELVES IN A MANNER WHICH
COULD BE CONSIDERED AS DETRIMENTAL TO THE PUBLIC PEACE OR ORDER.  ON
THE CONTRARY, THERE WAS POSITIVE TESTIMONY BY THE POLICE THAT EACH OF
THE APPELLANTS HAD CONDUCTED HIMSELF IN A MANNER BEYOND REPROACH.  IT
IS QUITE APPARENT THAT ANY DISORDERLY CONDUCT WHICH THE JURY FOUND MUST
HAVE BEEN BASED ON THE FACT THAT APPELLANTS WERE USING THE PARK WITHOUT
A PERMIT, ALTHOUGH, AS WE HAVE INDICATED ABOVE, THERE IS NO STATUTE OR
ORDINANCE PROHIBITING OR REGULATING THE USE OF THE PARK WITHOUT A
PERMIT. 

THIS COURT HAS MANY TIMES EXAMINED THE LICENSING SYSTEMS BY WHICH
LOCAL BODIES REGULATE THE USE OF THEIR PARKS AND PUBLIC PLACES.  SEE
KUNZ V. NEW YORK, DECIDED THIS DAY, POST, P. 290.  SEE ALSO SAIA V. NEW
YORK, 334 U.S. 558(1948); HAGUE V. C.I.O., 307 U.S. 496(1939); LOVELL
V. GRIFFIN, 303 U.S. 444(1938).  IN THOSE CASES THIS COURT CONDEMNED
STATUTES AND ORDINANCES WHICH REQUIRED THAT PERMITS BE OBTAINED FROM
LOCAL OFFICIALS AS A PREREQUISITE TO THE USE OF PUBLIC PLACES, ON THE
GROUNDS THAT A LICENSE REQUIREMENT CONSTITUTED A PRIOR RESTRAINT ON
FREEDOM OF SPEECH, PRESS AND RELIGION, AND, IN THE ABSENCE OF NARROWLY
DRAWN, REASONABLE AND DEFINITE STANDARDS FOR THE OFFICIALS TO FOLLOW,
MUST BE INVALID.  SEE KUNZ V. NEW YORK, POST, P. 290.  IN THE INSTANT
CASE WE ARE MET WITH NO ORDINANCE OR STATUTE REGULATING OR PROHIBITING
THE USE OF THE PARK; ALL THAT IS HERE IS AN AMORPHOUS "PRACTICE,"
WHEREBY ALL AUTHORITY TO GRANT PERMITS FOR THE USE OF THE PARK IS IN
THE PARK COMMISSIONER AND THE CITY COUNCIL.  NO STANDARDS APPEAR
ANYWHERE; NO NARROWLY DRAWN LIMITATIONS; NO CIRCUMSCRIBING OF THIS
ABSOLUTE POWER; NO SUBSTANTIAL INTEREST OF THE COMMUNITY TO BE SERVED. 
IT IS CLEAR THAT ALL THAT HAS BEEN SAID ABOUT THE INVALIDITY OF SUCH
LIMITLESS DISCRETION MUST BE EQUALLY APPLICABLE HERE. 

THIS CASE POINTS UP WITH UTMOST CLARITY THE WISDOM OF THIS DOCTRINE. 
FOR THE VERY POSSIBILITY OF ABUSE, WHICH THOSE EARLIER DECISIONS
FEARED, HAS OCCURRED HERE.  INDEED, RARELY HAS ANY CASE BEEN BEFORE
THIS COURT WHICH SHOWS SO CLEARLY AN UNWARRANTED DISCRIMINATION IN A
REFUSAL TO ISSUE SUCH A LICENSE.  IT IS TRUE THAT THE CITY COUNCIL HELD
A HEARING AT WHICH IT CONSIDERED THE APPLICATION.  BUT WE HAVE SEARCHED
THE RECORD IN VAIN TO DISCOVER ANY VALID BASIS FOR THE REFUSAL.  IN
FACT, THE MAYOR TESTIFIED THAT THE PERMIT WOULD PROBABLY HAVE BEEN
GRANTED IF, AT THE HEARING, THE APPLICANTS HAD NOT STARTED TO "BERATE"
THE PARK COMMISSIONER FOR HIS REFUSAL TO ISSUE THE PERMIT.  THE ONLY
QUESTIONS ASKED OF THE WITNESSES AT THE HEARING PERTAINED TO THEIR
ALLEGED REFUSAL TO SALUTE THE FLAG, THEIR VIEWS ON THE BIBLE, AND OTHER
ISSUES IRRELEVANT TO UNENCUMBERED USE OF THE PUBLIC PARKS.  THE
CONCLUSION IS INESCAPABLE THAT THE USE OF THE PARK WAS DENIED BECAUSE
OF THE CITY COUNCIL'S DISLIKE FOR OR DISAGREEMENT WITH THE WITNESSES OR
THEIR VIEWS.  THE RIGHT TO EQUAL PROTECTION OF THE LAWS, IN THE
EXERCISE OF THOSE FREEDOMS OF SPEECH AND RELIGION PROTECTED BY THE
FIRST AND FOURTEENTH AMENDMENTS, HAS A FIRMER FOUNDATION THAN THE WHIMS
OR PERSONAL OPINIONS OF A LOCAL GOVERNING BODY. 

IN THIS COURT, IT IS ARGUED THAT STATE AND CITY OFFICIALS SHOULD HAVE
THE POWER TO EXCLUDE RELIGIOUS GROUPS, AS SUCH, FROM THE USE OF THE
PUBLIC PARKS.  BUT THAT IS NOT THIS CASE.  FOR WHATEVER FORCE THIS
CONTENTION COULD POSSIBLY HAVE IS LOST IN THE LIGHT OF THE TESTIMONY OF
THE MAYOR AT THE TRIAL THAT WITHIN HIS MEMORY PERMITS HAD ALWAYS BEEN
ISSUED FOR RELIGIOUS ORGANIZATIONS AND SUNDAY-SCHOOL PICNICS.  WE MIGHT
ALSO POINT OUT THAT THE ATTEMPT TO DESIGNATE THE PARK AS A SANCTUARY
FOR PEACE AND QUIET NOT ONLY DOES NOT DEFEAT THESE APPELLANTS, WHOSE
OWN CONDUCT CREATED NO DISTURBANCE, BUT THIS POSITION IS ALSO MORE THAN
SLIGHTLY INCONSISTENT, SINCE, ON THE FIRST SUNDAY HERE INVOLVED, THE
PARK WAS THE SITUS FOR THE FLAG DAY CEREMONY OF THE ORDER OF ELKS. 

IT THUS BECOMES APPARENT THAT THE LACK OF STANDARDS IN THE LICENSE
ISSUING "PRACTICE" RENDERS THAT "PRACTICE" A PRIOR RESTRAINT IN
CONTRAVENTION OF THE FOURTEENTH AMENDMENT, AND THAT THE COMPLETELY
ARBITRARY AND DISCRIMINATORY REFUSAL TO GRANT THE PERMITS WAS A DENIAL
OF EQUAL PROTECTION.  INASMUCH AS THE BASIS OF THE CONVICTIONS WAS THE
LACK OF THE PERMITS, AND THAT LACK WAS, IN TURN, DUE TO THE
UNCONSTITUTIONAL DEFECTS DISCUSSED, THE CONVICTIONS MUST FALL. 
REVERSED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT* . 

*(IN THIS CASE, NO. 50, KUNZ V. NEW YORK, POST, P. 290, AND NO. 93,
FEINER V. NEW YORK, POST, P. 315.) 

THE ISSUES IN THESE CASES CONCERN LIVING LAW IN SOME OF ITS MOST
DELICATE ASPECTS.  TO SMOTHER DIFFERENCES OF EMPHASIS AND NUANCE WILL
NOT HELP ITS WISE DEVELOPMENT.  WHEN THE WAY A RESULT IS REACHED MAY BE
IMPORTANT TO RESULTS HEREAFTER TO BE REACHED, LAW IS BEST RESPECTED BY
INDIVIDUAL EXPRESSION OF OPINION. 

THESE CASES PRESENT THREE VARIATIONS UPON A THEME OF GREAT
IMPORTANCE.  LEGISLATURES, LOCAL AUTHORITIES, AND THE COURTS HAVE FOR
YEARS GRAPPLED WITH CLAIMS OF THE RIGHT TO DISSEMINATE IDEAS IN PUBLIC
PLACES AS AGAINST CLAIMS OF AN EFFECTIVE POWER IN GOVERNMENT TO KEEP
THE PEACE AND TO PROTECT OTHER INTERESTS OF A CIVILIZED COMMUNITY. 
THESE CASES ARE OF SPECIAL INTEREST BECAUSE THEY SHOW THE ATTEMPTS OF
THREE COMMUNITIES TO MEET THE PROBLEM IN THREE DIFFERENT WAYS.  IT
WILL, I BELIEVE, FURTHER ANALYSIS TO USE THE THREE SITUATIONS AS CROSS
LIGHTS ON ONE ANOTHER. 

                          I. 

1.  NOS. 17 AND 18.  - HAVRE DE GRACE, MARYLAND, SOUGHT TO SOLVE THIS
TANGLED PROBLEM BY PERMITTING ITS PARK COMMISSIONER AND CITY COUNCIL TO
ACT AS CENSORS.  THE CITY ALLOWED USE OF ITS PARK FOR PUBLIC MEETINGS,
INCLUDING THOSE OF RELIGIOUS GROUPS, BUT BY CUSTOM A PERMIT WAS
REQUIRED.  IN THIS CASE, THE CITY COUNCIL QUESTIONED THE
REPRESENTATIVES OF JEHOVAH'S WITNESSES, WHO HAD REQUESTED A LICENSE,
ABOUT THEIR VIEWS ON SALUTING THE FLAG, THE CATHOLIC CHURCH, SERVICE IN
THE ARMED FORCES, AND OTHER MATTERS IN NO WAY RELATED TO PUBLIC ORDER
OR PUBLIC CONVENIENCE IN USE OF THE PARK.  THE MAYOR TESTIFIED THAT HE
SUPPOSED THE PERMIT WAS DENIED "BECAUSE OF MATTERS THAT WERE BROUGHT
OUT AT (THE) MEETING."  WHEN NIEMOTKO AND KELLEY, JEHOVAH'S WITNESSES,
ATTEMPTED TO SPEAK, THEY WERE ARRESTED FOR DISTURBING THE PEACE.  THERE
WAS NO DISTURBANCE OF THE PEACE AND IT IS CLEAR THAT THEY WERE ARRESTED
ONLY FOR WANT OF A PERMIT. 

2.  NO. 50.  - NEW YORK CITY SET UP A LICENSING SYSTEM TO CONTROL THE
USE OF ITS STREETS AND PARKS FOR PUBLIC RELIGIOUS SERVICES.  THE NEW
YORK COURT OF APPEALS CONSTRUED THE CITY'S ORDINANCE SO AS TO SANCTION
THE RIGHT OF THE POLICE COMMISSIONER TO REVOKE OR REFUSE A LICENSE FOR
STREET-PREACHING IF HE FOUND THE PERSON WAS LIKELY TO "RIDICULE" OR
"DENOUNCE" RELIGION.  IN 1946, AFTER HEARINGS BEFORE A FOURTH DEPUTY
POLICE COMMISSIONER, KUNZ'S LICENSE WAS REVOKED BECAUSE HE HAD
"RIDICULED" AND "DENOUNCED" RELIGION WHILE SPEAKING IN ONE OF NEW
YORK'S CROWDED CENTERS, AND IT WAS THOUGHT LIKELY THAT HE WOULD
CONTINUE TO DO SO.  IN 1947 AND 1948 HE WAS REFUSED A LICENSE ON THE
SOLE GROUND OF THE DETERMINATION MADE IN 1946.  IN SEPTEMBER OF 1948 HE
WAS ARRESTED FOR SPEAKING AT COLUMBUS CIRCLE WITHOUT A LICENSE. 

3.  NO. 93.  - SYRACUSE, NEW YORK, DID NOT SET UP A LICENSING SYSTEM
BUT RELIED ON A STATUTE WHICH IS IN SUBSTANCE AN ENACTMENT OF THE
COMMON-LAW OFFENSE OF BREACH OF THE PEACE.  FEINER, THE DEFENDANT, MADE
A SPEECH NEAR THE INTERSECTION OF SOUTH MCBRIDE AND HARRISON STREETS IN
SYRACUSE.  HE SPOKE FROM A BOX LOCATED ON THE PARKING BETWEEN THE
SIDEWALK AND THE STREET, AND MADE USE OF SOUND AMPLIFIERS ATTACHED TO
AN AUTOMOBILE.  A CROWD OF 75 TO 80 PERSONS GATHERED AROUND HIM, AND
SEVERAL PEDESTRIANS HAD TO GO INTO THE HIGHWAY IN ORDER TO PASS BY.
TWO POLICEMEN OBSERVED THE MEETING.  IN THE COURSE OF HIS SPEECH,
FEINER REFERRED TO THE MAYOR OF SYRACUSE AS A "CHAMPAGNE-SIPPING BUM,"
TO THE PRESIDENT AS A "BUM," AND TO THE AMERICAN LEGION AS "NAZI
GESTAPO AGENTS."  FEINER ALSO INDICATED IN AN EXCITED MANNER THAT
NEGROES DID NOT HAVE EQUAL RIGHTS AND SHOULD RISE UP IN ARMS.  HIS
AUDIENCE INCLUDED A NUMBER OF NEGROES. 

ONE MAN INDICATED THAT IF THE POLICE DID NOT GET THE SPEAKER OFF THE
STAND, HE WOULD DO IT HIMSELF.  THE CROWD, WHICH CONSISTED OF BOTH
THOSE WHO OPPOSED AND THOSE WHO SUPPORTED THE SPEAKER, WAS RESTLESS. 
THERE WAS NOT YET A DISTURBANCE BUT, IN THE WORDS OF THE ARRESTING
OFFICER WHOSE STORY WAS ACCEPTED BY THE TRIAL JUDGE, HE "STEPPED IN TO
PREVENT IT FROM RESULTING IN A FIGHT.  AFTER ALL THERE WAS ANGRY
MUTTERING AND PUSHING."  HAVING IGNORED TWO REQUESTS TO STOP SPEAKING,
FEINER WAS ARRESTED. 

                                 II. 

ADJUSTMENT OF THE INEVITABLE CONFLICT BETWEEN FREE SPEECH AND OTHER
INTERESTS IS A PROBLEM AS PERSISTENT AS IT IS PERPLEXING.  IT IS
IMPORTANT TO BEAR IN MIND THAT THIS COURT CAN ONLY HOPE TO SET LIMITS
AND POINT THE WAY.  IT FALLS TO THE LOT OF LEGISLATIVE BODIES AND
ADMINISTRATIVE OFFICIALS TO FIND PRACTICAL SOLUTIONS WITHIN THE FRAME
OF OUR DECISIONS.  THERE ARE NOW SO MANY OF THESE DECISIONS, ARRIVED AT
BY THE AD HOC PROCESS OF ADJUDICATION, THAT IT IS DESIRABLE TO MAKE A
CRUISE OF THE TIMBER.    IN TREATING THE PRECISE PROBLEM PRESENTED BY
THE THREE SITUATIONS BEFORE US - HOW TO RECONCILE THE INTEREST IN
ALLOWING FREE EXPRESSION OF IDEAS IN PUBLIC PLACES WITH THE PROTECTION
OF THE PUBLIC PEACE AND OF THE PRIMARY USES OF STREETS AND PARKS - WE
SHOULD FIRST SET TO ONE SIDE DECISIONS WHICH ARE APT TO MISLEAD RATHER
THAN ASSIST.  CONTEMPT CASES AND CONVICTIONS UNDER STATE AND FEDERAL
STATUTES AIMED AT PLACING A GENERAL LIMITATION UPON WHAT MAY BE SAID OR
WRITTEN, BRING ADDITIONAL FACTORS INTO THE EQUATION.  CASES LIKE NEAR
V. MINNESOTA, 283 U.S. 697, AND GROSJEAN V. AMERICAN PRESS CO., 297
U.S. 233, ARE ROOTED IN HISTORIC EXPERIENCE REGARDING PRIOR RESTRAINTS
ON PUBLICATION.  THEY GIVE RECOGNITION TO THE ROLE OF THE PRESS IN A
DEMOCRACY, A CONSIDERATION NOT IMMEDIATELY PERTINENT.  THE PICKETING
CASES ARE LOGICALLY RELEVANT SINCE THEY USUALLY INVOLVE, IN PART,
DISSEMINATION OF INFORMATION IN PUBLIC PLACES.  BUT HERE ALSO ENTER
ECONOMIC AND SOCIAL INTERESTS OUTSIDE THE SITUATIONS BEFORE US.  SEE
HUGHES V. SUPERIOR COURT, 339 U.S. 460, 464-465. 

THE CASES MORE EXCLUSIVELY CONCERNED WITH RESTRICTIONS UPON
EXPRESSION IN ITS DIVERS FORMS IN PUBLIC PLACES HAVE ANSWERED PROBLEMS
VARYING GREATLY IN CONTENT AND DIFFICULTY. 

1.  THE EASIEST CASES HAVE BEEN THOSE IN WHICH THE ONLY INTEREST
OPPOSING FREE COMMUNICATION WAS THAT OF KEEPING THE STREETS OF THE
COMMUNITY CLEAN.  THIS COULD SCARCELY JUSTIFY PROHIBITING THE
DISSEMINATION OF INFORMATION BY HANDBILLS OR CENSORING THEIR CONTENTS. 
IN LOVELL V. GRIFFIN, 303 U.S. 444, AN ORDINANCE REQUIRING A PERMIT TO
DISTRIBUTE PAMPHLETS WAS HELD INVALID WHERE THE LICENSING STANDARD WAS
"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."  ID., AT 451.  IN HAGUE V. C.I.O., 307 U.S. 496, A PORTION OF
THE ORDINANCE DECLARED INVALID PROHIBITED THE DISTRIBUTION OF
PAMPHLETS.  IN SCHNEIDER V. STATE, 308 U.S. 147, THREE OF THE FOUR
ORDINANCES DECLARED INVALID BY THE COURT PROHIBITED THE DISTRIBUTION OF
PAMPHLETS.  IN JAMISON V. TEXAS, 318 U.S. 413, THE COURT AGAIN DECLARED
INVALID A MUNICIPAL ORDINANCE PROHIBITING THE DISTRIBUTION OF ALL
HANDBILLS. 

2.  IN A GROUP OF RELATED CASES, REGULATION OF SOLICITATION HAS BEEN
THE ISSUE.  HERE THE OPPOSING INTEREST IS MORE SUBSTANTIAL - PROTECTION
OF THE PUBLIC FROM FRAUD AND FROM CRIMINALS WHO USE SOLICITATION AS A
DEVICE TO ENTER HOMES.  THE FOURTH ORDINANCE CONSIDERED IN SCHNEIDER V.
STATE, SUPRA, ALLOWED THE CHIEF OF POLICE TO REFUSE A PERMIT IF HE
FOUND, IN HIS DISCRETION, THAT THE CANVASSER WAS NOT OF GOOD CHARACTER
OR WAS CANVASSING FOR A PROJECT NOT FREE FROM FRAUD.  THE ORDINANCE WAS
FOUND INVALID BECAUSE THE OFFICER WHO COULD, IN HIS DISCRETION, MAKE
THE DETERMINATIONS CONCERNING "GOOD CHARACTER" AND "PROJECT NOT FREE
FROM FRAUD" IN EFFECT HELD THE POWER OF CENSORSHIP.  IN CANTWELL V.
CONNECTICUT, 310 U.S. 296, CONVICTION WAS, IN PART, UNDER A STATE
STATUTE REQUIRING A PERMIT FOR RELIGIOUS SOLICITATION.  THE STATUTE WAS
DECLARED INVALID BECAUSE THE LICENSING OFFICIAL COULD DETERMINE WHAT
CAUSES WERE RELIGIOUS, ALLOWING A "CENSORSHIP OF RELIGION."  ID., AT
305.  AGAIN, IN LARGENT V. TEXAS, 318 U.S. 418, AN ORDINANCE REQUIRING
A PERMIT FROM THE MAYOR, WHO WAS TO ISSUE THE PERMIT ONLY IF HE DEEMED
IT "PROPER OR ADVISABLE," WAS DECLARED INVALID AS CREATING AN
ADMINISTRATIVE CENSORSHIP.  THE COURT HAS ALSO DENIED THE RIGHT OF
THOSE IN CONTROL OF A COMPANY TOWN OR GOVERNMENT HOUSING PROJECT TO
PROHIBIT SOLICITATION BY JEHOVAH'S WITNESSES.  MARSH V. ALABAMA, 326
U.S. 501; TUCKER V. TEXAS, 326 U.S. 517.  IN THOMAS V. COLLINS, 323
U.S. 516, THE SOLICITATION WAS IN THE INTEREST OF LABOR RATHER THAN
RELIGION.  THERE A STATE STATUTE REQUIRING REGISTRATION OF LABOR
ORGANIZERS WAS FOUND UNCONSTITUTIONAL WHEN INVOKED TO ENJOIN A SPEECH
IN A PUBLIC HALL.  THE INTEREST OF THE STATE IN PROTECTING ITS CITIZENS
THROUGH THE REGULATION OF VOCATIONS WAS DEEMED INSUFFICIENT TO SUPPORT
THE STATUTE. 

3.  WHETHER THE SALE OF RELIGIOUS LITERATURE BY JEHOVAH'S WITNESSES
CAN BE SUBJECTED TO NONDISCRIMINATORY TAXES ON SOLICITATION HAS
INTRODUCED ANOTHER OPPOSING INTEREST - THE RIGHT OF THE COMMUNITY TO
RAISE FUNDS FOR THE SUPPORT OF THE GOVERNMENT.  IN JONES V. OPELIKA,
319 U.S. 103, VACATING 316 U.S. 584, AND IN MURDOCK V. PENNSYLVANIA,
319 U.S. 105, THE COURT HELD THAT IMPOSITION OF THE TAX UPON ITINERANTS
WAS IMPROPER.  IN FOLLETT V. MCCORMICK, 321 U.S. 573, THE COURT WENT
FURTHER TO HOLD UNCONSTITUTIONAL THE IMPOSITION OF A FLAT TAX ON BOOK
AGENTS UPON A RESIDENT WHO MADE HIS LIVING SELLING RELIGIOUS BOOKS. 

4. MARTIN V. STRUTHERS, 319 U.S. 141, REPRESENTS ANOTHER SITUATION. 
AN ORDINANCE OF THE CITY OF STRUTHERS, OHIO, FORBADE KNOCKING ON THE
DOOR OR RINGING THE DOORBELL OF A RESIDENCE IN ORDER TO DELIVER A
HANDBILL.  PREVENTION OF CRIME AND ASSURING PRIVACY IN AN INDUSTRIAL
COMMUNITY WHERE MANY WORKED ON NIGHT SHIFTS, AND HAD TO OBTAIN THEIR
SLEEP DURING THE DAY, WERE HELD INSUFFICIENT TO JUSTIFY THE ORDINANCE
IN THE CASE OF HANDBILLS DISTRIBUTED ON BEHALF OF JEHOVAH'S WITNESSES. 

5.  IN CONTRAST TO THESE DECISIONS, THE COURT HELD IN PRINCE V.
MASSACHUSETTS, 321 U.S. 158, THAT THE APPLICATION TO JEHOVAH'S
WITNESSES OF A STATE STATUTE PROVIDING THAT NO BOY UNDER 12 OR GIRL
UNDER 18 SHOULD SELL PERIODICALS ON THE STREET WAS CONSTITUTIONAL. 
CLAIMS OF IMMUNITY FROM REGULATION OF RELIGIOUS ACTIVITIES WERE
SUBORDINATED TO THE INTEREST OF THE STATE IN PROTECTING ITS CHILDREN. 

6.  CONTROL OF SPEECHES MADE IN STREETS AND PARKS DRAWS ON STILL
DIFFERENT CONSIDERATIONS - PROTECTION OF THE PUBLIC PEACE AND OF THE
PRIMARY USES OF TRAVEL AND RECREATION FOR WHICH STREETS AND PARKS
EXIST. 

(A)  THE PIONEER CASE CONCERNING SPEAKING IN PARKS AND STREETS IS
DAVIS V. MASSACHUSETTS, 167 U.S. 43, IN WHICH THIS COURT ADOPTED THE
REASONING OF THE OPINION BELOW WRITTEN BY MR. JUSTICE HOLMES, WHILE ON
THE MASSACHUSETTS SUPREME JUDICIAL COURT.  COMMONWEALTH V. DAVIS, 162
MASS. 510, 39 N.E. 113.  THE BOSTON ORDINANCE WHICH WAS UPHELD REQUIRED
A PERMIT FROM THE MAYOR FOR ANY PERSON TO "MAKE ANY PUBLIC ADDRESS,
DISCHARGE ANY CANNON OR FIREARM, EXPOSE FOR SALE ANY GOODS, ...  " ON
PUBLIC GROUNDS.  THIS COURT RESPECTED THE FINDING THAT THE ORDINANCE
WAS NOT DIRECTED AGAINST FREE SPEECH BUT WAS INTENDED AS "A PROPER
REGULATION OF THE USE OF PUBLIC GROUNDS."  162 MASS. AT 512, 39 N.E. AT
113. 

AN ATTEMPT TO DERIVE FROM DICTA IN THE DAVIS CASE THE RIGHT OF A CITY
TO EXERCISE ANY POWER OVER ITS PARKS, HOWEVER ARBITRARY OR
DISCRIMINATORY, WAS REJECTED IN HAGUE V. C.I.O., SUPRA.  THE ORDINANCE
PRESENTED IN THE HAGUE CASE REQUIRED A PERMIT FOR MEETINGS ON PUBLIC
GROUND, THE PERMIT TO BE REFUSED BY THE LICENSING OFFICIAL ONLY "FOR
THE PURPOSE OF PREVENTING RIOTS, DISTURBANCES OR DISORDERLY
ASSEMBLAGE."  ID., AT 502.  THE FACTS OF THE CASE, HOWEVER, LEFT NO
DOUBT THAT THE LICENSING POWER HAD BEEN MADE AN "INSTRUMENT OF
ARBITRARY SUPPRESSION OF FREE EXPRESSION OF VIEWS ON NATIONAL
AFFAIRS."  ID., AT 516.  AND THE CONSTRUCTION GIVEN THE ORDINANCE IN
THE STATE COURTS GAVE THE LICENSING OFFICIALS WIDE DISCRETION.  SEE
THOMAS V. CASEY, 121 N.J.L. 185, 1 A.2D 866.  THE HOLDING OF THE HAGUE
CASE WAS NOT THAT A CITY COULD NOT SUBJECT THE USE OF ITS STREETS AND
PARKS TO REASONABLE REGULATION.  THE HOLDING WAS THAT THE LICENSING
OFFICIALS COULD NOT BE GIVEN POWER ARBITRARILY TO SUPPRESS FREE
EXPRESSION, NO MATTER UNDER WHAT COVER OF LAW THEY PURPORTED TO ACT. 

COX V. NEW HAMPSHIRE, 312 U.S. 569, MADE IT CLEAR THAT THE UNITED
STATES CONSTITUTION DOES NOT DENY LOCALITIES THE POWER TO DEVISE A
LICENSING SYSTEM IF THE EXERCISE OF DISCRETION BY THE LICENSING
OFFICIALS IS APPROPRIATELY CONFINED.  A STATUTE REQUIRING A PERMIT AND
LICENSE FEE FOR PARADES HAD BEEN NARROWLY CONSTRUED BY THE STATE
COURTS.  THE LICENSE COULD BE REFUSED ONLY FOR "CONSIDERATIONS OF TIME,
PLACE AND MANNER SO AS TO CONSERVE THE PUBLIC CONVENIENCE," AND THE
LICENSE FEE WAS "TO MEET THE EXPENSE INCIDENT TO THE ADMINISTRATION OF
THE ACT AND TO THE MAINTENANCE OF PUBLIC ORDER IN THE MATTER
LICENSED."  ID., AT 575-576, 577.  THE LICENSING SYSTEM WAS SUSTAINED
EVEN THOUGH THE TAX, RANGING FROM A NOMINAL AMOUNT TO $300, WAS
DETERMINED BY THE LICENSING OFFICIALS ON THE FACTS OF EACH CASE. 

(B)  TWO CASES HAVE INVOLVED THE ADDITIONAL CONSIDERATIONS INCIDENT
TO THE USE OF SOUND TRUCKS.  IN SAIA V. NEW YORK, 334 U.S. 558, THE
ORDINANCE REQUIRED A LICENSE FROM THE CHIEF OF POLICE FOR USE OF SOUND
AMPLIFICATION DEVICES IN PUBLIC PLACES.  THE ORDINANCE WAS CONSTRUED
NOT TO PRESCRIBE STANDARDS TO BE APPLIED IN PASSING UPON A LICENSE
APPLICATION.  IN THE PARTICULAR CASE, A LICENSE TO USE A SOUND TRUCK IN
A SMALL CITY PARK HAD BEEN DENIED BECAUSE OF COMPLAINTS ABOUT THE NOISE
WHICH RESULTED WHEN SOUND AMPLIFIERS HAD PREVIOUSLY BEEN USED IN THE
PARK.  THERE WAS NO INDICATION THAT THE LICENSE HAD BEEN REFUSED
BECAUSE OF THE CONTENT OF THE SPEECHES.  NEVERTHELESS, THE COURT HELD
THE ORDINANCE UNCONSTITUTIONAL.  IN KOVACS V. COOPER, 336 U.S. 77, PART
OF THE COURT CONSTRUED THE ORDINANCE AS ALLOWING CONVICTION FOR
OPERATION OF ANY SOUND TRUCK EMITTING "LOUD AND RAUCOUS" NOISES, AND
PART CONSTRUED THE ORDINANCE TO BAN ALL SOUND TRUCKS.  THE LIMITS OF
THE DECISION OF THE COURT UPHOLDING THE ORDINANCE ARE THEREFORE NOT
CLEAR, BUT THE RESULT IN ANY EVENT DOES NOT LEAVE THE SAIA DECISION
INTACT. 

(C)  ON A FEW OCCASIONS THE COURT HAS HAD TO PASS ON A LIMITATION
UPON SPEECH BY A SANCTION IMPOSED AFTER THE EVENT RATHER THAN BY A
LICENSING STATUTE.  IN CANTWELL V. CONNECTICUT, SUPRA, ONE OF THE
CONVICTIONS WAS FOR COMMON-LAW BREACH OF THE PEACE.  THE PROBLEM WAS
RESOLVED IN FAVOR OF THE DEFENDANT BY REFERENCE TO SCHENCK V. UNITED
STATES, 249 U.S. 47, 52, IN VIEW OF THE INQUIRY WHETHER, ON THE FACTS
OF THE CASE, THERE WAS "SUCH CLEAR AND PRESENT MENACE TO PUBLIC PEACE
AND ORDER AS TO RENDER HIM LIABLE TO CONVICTION OF THE COMMON LAW
OFFENSE IN QUESTION."  310 U.S. AT 311. 

IN CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, A STATE STATUTE HAD
ENACTED THE COMMON-LAW DOCTRINE OF "FIGHTING WORDS":  "NO PERSON SHALL
ADDRESS ANY OFFENSIVE, DERISIVE OR ANNOYING WORD TO ANY OTHER PERSON
WHO IS LAWFULLY IN ANY STREET OR OTHER PUBLIC PLACE, NOR CALL HIM BY
ANY OFFENSIVE OR DERISIVE NAME  ...  "  THE STATE COURTS HAD PREVIOUSLY
HELD THE STATUTE APPLICABLE ONLY TO THE USE IN A PUBLIC PLACE OF WORDS
DIRECTLY TENDING TO CAUSE A BREACH OF THE PEACE BY THE PERSONS TO WHOM
THE REMARK WAS ADDRESSED.  THE CONVICTION OF A STREET SPEAKER WHO
CALLED A POLICEMAN A "DAMNED RACKETEER" AND "DAMNED FASCIST" WAS
UPHELD. 

7.  ONE OTHER CASE SHOULD BE NOTED, ALTHOUGH IT INVOLVED A CONVICTION
FOR BREACH OF PEACE IN A PRIVATE BUILDING RATHER THAN IN A PUBLIC
PLACE.  IN TERMINIELLO V. CHICAGO, 337 U.S. 1, THE HOLDING OF THE COURT
WAS ON AN ABSTRACT PROPOSITION OF LAW, UNRELATED TO THE FACTS IN THE
CASE.  A CONVICTION WAS OVERTURNED BECAUSE THE JUDGE HAD INSTRUCTED THE
JURY THAT "BREACH OF THE PEACE" INCLUDED SPEECH WHICH "STIRS THE PUBLIC
TO ANGER, INVITES DISPUTE, BRINGS ABOUT A CONDITION OF UNREST, OR
CREATES A DISTURBANCE  ...  "  THE HOLDING APPARENTLY WAS THAT BREACH
OF THE PEACE MAY NOT BE DEFINED IN SUCH BROAD TERMS, CERTAINLY AS TO
SPEECH IN A PRIVATE HALL. 

THE RESULTS IN THESE MULTIFARIOUS CASES HAVE BEEN EXPRESSED IN
LANGUAGE LOOKING IN TWO DIRECTIONS.  WHILE THE COURT HAS EMPHASIZED THE
IMPORTANCE OF "FREE SPEECH," IT HAS RECOGNIZED THAT "FREE SPEECH" IS
NOT IN ITSELF A TOUCHSTONE.  THE CONSTITUTION IS NOT UNMINDFUL OF OTHER
IMPORTANT INTERESTS, SUCH AS PUBLIC ORDER, IF INTERFERENCE WITH FREE
EXPRESSION OF IDEAS IS NOT FOUND TO BE THE OVERBALANCING
CONSIDERATION.  MORE IMPORTANT THAN THE PHRASING OF THE OPINIONS ARE
THE QUESTIONS ON WHICH THE DECISIONS APPEAR TO HAVE TURNED. 

(1)  WHAT IS THE INTEREST DEEMED TO REQUIRE THE REGULATION OF
SPEECH?  THE STATE CANNOT OF COURSE FORBID PUBLIC PROSELYTING OR
RELIGIOUS ARGUMENT MERELY BECAUSE PUBLIC OFFICIALS DISAPPROVE THE
SPEAKER'S VIEWS.  IT MUST ACT IN PATENT GOOD FAITH TO MAINTAIN THE
PUBLIC PEACE, TO ASSURE THE AVAILABILITY OF THE STREETS FOR THEIR
PRIMARY PURPOSES OF PASSENGER AND VEHICULAR TRAFFIC, OR FOR EQUALLY
INDISPENSABLE ENDS OF MODERN COMMUNITY LIFE. 

(2)  WHAT IS THE METHOD USED TO ACHIEVE SUCH ENDS AS A CONSEQUENCE OF
WHICH PUBLIC SPEECH IS CONSTRAINED OR BARRED?  A LICENSING STANDARD
WHICH GIVES AN OFFICIAL AUTHORITY TO CENSOR THE CONTENT OF A SPEECH
DIFFERS TOTO CAELO FROM ONE LIMITED BY ITS TERMS, OR BY
NONDISCRIMINATORY PRACTICE, TO CONSIDERATIONS OF PUBLIC SAFETY AND THE
LIKE.  AGAIN, A SANCTION APPLIED AFTER THE EVENT ASSURES CONSIDERATION
OF THE PARTICULAR CIRCUMSTANCES OF A SITUATION.  THE NET OF CONTROL
MUST NOT BE CAST TOO BROADLY. 

(3)  WHAT MODE OF SPEECH IS REGULATED?  A SOUND TRUCK MAY BE FOUND TO
AFFECT THE PUBLIC PEACE AS NORMAL SPEECH DOES NOT.  A MAN WHO IS
CALLING NAMES OR USING THE KIND OF LANGUAGE WHICH WOULD REASONABLY STIR
ANOTHER TO VIOLENCE DOES NOT HAVE THE SAME CLAIM TO PROTECTION AS ONE
WHOSE SPEECH IS AN APPEAL TO REASON. 

(4)  WHERE DOES THE SPEAKING WHICH IS REGULATED TAKE PLACE?  NOT ONLY
THE GENERAL CLASSIFICATIONS - STREETS, PARKS, PRIVATE BUILDINGS - ARE
RELEVANT.  THE LOCATION AND SIZE OF A PARK; ITS CUSTOMARY USE FOR THE
RECREATIONAL, ESTHETIC AND CONTEMPLATIVE NEEDS OF A COMMUNITY; THE
FACILITIES, OTHER THAN A PARK OR STREET CORNER, READILY AVAILABLE IN A
COMMUNITY FOR AIRING VIEWS, ARE ALL PERTINENT CONSIDERATIONS IN
ASSESSING THE LIMITATIONS THE FOURTEENTH AMENDMENT PUTS ON STATE POWER
IN A PARTICULAR SITUATION.  FN1
III. 

DUE REGARD FOR THE INTERESTS THAT WERE ADJUSTED IN THE DECISIONS JUST
CANVASSED AFFORDS GUIDANCE FOR DECIDING THE CASES BEFORE US. 

1.  IN THE NIEMOTKO CASE, NEITHER DANGER TO THE PUBLIC PEACE, NOR
CONSIDERATION OF TIME AND CONVENIENCE TO THE PUBLIC, APPEARS TO HAVE
ENTERED INTO DENIAL OF THE PERMIT.  RUMORS THAT THERE WOULD BE VIOLENCE
BY THOSE OPPOSED TO THE MEETING APPEARED ONLY AFTER THE COUNCIL MADE
ITS DECISION, AND IN FACT NEVER MATERIALIZED.  THE CITY ALLOWED OTHER
RELIGIOUS GROUPS TO USE THE PARK.  TO ALLOW EXPRESSION OF RELIGIOUS
VIEWS BY SOME AND DENY THE SAME PRIVILEGE TO OTHERS MERELY BECAUSE THEY
OR THEIR VIEWS ARE UNPOPULAR, EVEN DEEPLY SO, IS A DENIAL OF EQUAL
PROTECTION OF THE LAW FORBIDDEN BY THE FOURTEENTH AMENDMENT. 

2.  THE KUNZ CASE PRESENTS A VERY DIFFERENT SITUATION.  WE MUST BE
MINDFUL OF THE ENORMOUS DIFFICULTIES CONFRONTING THOSE CHARGED WITH THE
TASK OF ENABLING THE POLYGLOT MILLIONS IN THE CITY OF NEW YORK TO LIVE
IN PEACE AND TOLERANCE.  STREET-PREACHING IN COLUMBUS CIRCLE IS DONE IN
A MILIEU QUITE DIFFERENT FROM PREACHING ON A NEW ENGLAND VILLAGE
GREEN.  AGAIN, RELIGIOUS POLEMIC DOES NOT TOUCH THE MERELY
RATIOCINATIVE NATURE OF MAN, AND THE UGLY FACTS DISCLOSED BY THE RECORD
OF THIS CASE SHOW THAT KUNZ WAS NOT RELUCTANT TO OFFEND THE DEEPEST
RELIGIOUS FEELINGS OF FREQUENTERS OF COLUMBUS CIRCLE.  ESPECIALLY IN
SUCH SITUATIONS, THIS COURT SHOULD NOT SUBSTITUTE ITS ABSTRACT VIEWS
FOR THE INFORMED JUDGMENT OF LOCAL AUTHORITIES CONFIRMED BY LOCAL
COURTS. 

I CANNOT MAKE TOO EXPLICIT MY CONVICTION THAT THE CITY OF NEW YORK IS
NOT RESTRAINED BY ANYTHING IN THE CONSTITUTION OF THE UNITED STATES
FROM PROTECTING COMPLETELY THE COMMUNITY'S INTERESTS IN RELATION TO ITS
STREETS.  BUT IF A MUNICIPALITY CONDITIONS HOLDING STREET MEETINGS ON
THE GRANTING OF A PERMIT BY THE POLICE, THE BASIS WHICH GUIDES
LICENSING OFFICIALS IN GRANTING OR DENYING A PERMIT MUST NOT GIVE THEM
A FREE HAND, OR A HAND EFFECTIVELY FREE WHEN THE ACTUALITIES OF POLICE
ADMINISTRATION ARE TAKEN INTO ACCOUNT.  IT IS NOT FOR THIS COURT TO
FORMULATE WITH PARTICULARITY THE TERMS OF A PERMIT SYSTEM WHICH WOULD
SATISFY THE FOURTEENTH AMENDMENT.  NO DOUBT, FINDING A WANT OF SUCH
STANDARDS PRESUPPOSES SOME CONCEPTION OF WHAT IS NECESSARY TO MEET THE
CONSTITUTIONAL REQUIREMENT WE DRAW FROM THE FOURTEENTH AMENDMENT.  BUT
MANY A DECISION OF THIS COURT RESTS ON SOME INARTICULATE MAJOR PREMISE
AND IS NONE THE WORSE FOR IT.  A STANDARD MAY BE FOUND INADEQUATE
WITHOUT THE NECESSITY OF EXPLICIT DELINEATION OF THE STANDARDS THAT
WOULD BE ADEQUATE, JUST AS DOGGEREL MAY BE FELT NOT TO BE POETRY
WITHOUT THE NEED OF WRITING AN ESSAY ON WHAT POETRY IS. 

ADMINISTRATIVE CONTROL OVER THE RIGHT TO SPEAK MUST BE BASED ON
APPROPRIATE STANDARDS, WHETHER THE SPEAKING BE DONE INDOORS OR OUT-OF
DOORS.  THE VICE TO BE GUARDED AGAINST IS ARBITRARY ACTION BY
OFFICIALS.  THE FACT THAT IN A PARTICULAR INSTANCE AN ACTION APPEARS
NOT ARBITRARY DOES NOT SAVE THE VALIDITY OF THE AUTHORITY UNDER WHICH
THE ACTION WAS TAKEN. 

IN THE PRESENT CASE, KUNZ WAS NOT ARRESTED FOR WHAT HE SAID ON THE
NIGHT OF ARREST, NOR BECAUSE AT THAT TIME HE WAS DISTURBING THE PEACE
OR INTERFERING WITH TRAFFIC.  HE WAS ARRESTED BECAUSE HE SPOKE WITHOUT
A LICENSE, AND THE LICENSE WAS REFUSED BECAUSE THE POLICE COMMISSIONER
THOUGHT IT LIKELY ON THE BASIS OF PAST PERFORMANCE THAT KUNZ WOULD
OUTRAGE THE RELIGIOUS SENSIBILITIES OF OTHERS.  IF SUCH HAD BEEN THE
SUPPORTABLE FINDING ON THE BASIS OF FAIR STANDARDS IN SAFEGUARDING
PEACE IN ONE OF THE MOST POPULOUS CENTERS OF NEW YORK CITY, THIS COURT
WOULD NOT BE JUSTIFIED IN UPSETTING IT.  IT WOULD NOT BE CENSORSHIP IN
ADVANCE.  BUT HERE THE STANDARDS ARE DEFINED NEITHER BY LANGUAGE NOR BY
SETTLED CONSTRUCTION TO PRECLUDE DISCRIMINATORY OR ARBITRARY ACTION BY
OFFICIALS.  THE ORDINANCE, AS JUDICIALLY CONSTRUED, PROVIDES THAT
ANYONE WHO, IN THE JUDGMENT OF THE LICENSING OFFICIALS, WOULD
"RIDICULE" OR "DENOUNCE" RELIGION CREATES SUCH A DANGER OF PUBLIC
DISTURBANCE THAT HE CANNOT SPEAK IN ANY PARK OR STREET IN THE CITY OF
NEW YORK.  SUCH A STANDARD, CONSIDERING THE INFORMAL PROCEDURE UNDER
WHICH IT IS APPLIED, TOO READILY PERMITS CENSORSHIP OF RELIGION BY THE
LICENSING AUTHORITIES.  CANTWELL V. CONNECTICUT, 310 U.S. 296.  THE
SITUATION HERE DISCLOSED IS NOT, TO REITERATE, BEYOND CONTROL ON THE
BASIS OF REGULATION APPROPRIATELY DIRECTED TO THE EVIL.  FN2 

3.  FEINER WAS CONVICTED UNDER NEW YORK PENAL LAW, SEC. 722, WHICH
PROVIDES: 

"ANY PERSON WHO WITH INTENT TO PROVOKE A BREACH OF THE PEACE, OR
WHEREBY A BREACH OF THE PEACE MAY BE OCCASIONED, COMMITS ANY OF THE
FOLLOWING ACTS SHALL BE DEEMED TO HAVE COMMITTED THE OFFENSE OF
DISORDERLY CONDUCT: 

     .         .         .         .         . 

"2.  ACTS IN SUCH A MANNER AS TO ANNOY, DISTURB, INTERFERE WITH,
OBSTRUCT, OR BE OFFENSIVE TO OTHERS; ...  " 

A STATE COURT CANNOT OF COURSE PRECLUDE REVIEW OF DUE PROCESS
QUESTIONS MERELY BY PHRASING ITS OPINION IN TERMS OF AN ULTIMATE
STANDARD WHICH IN ITSELF SATISFIES DUE PROCESS.  WATTS V. INDIANA, 338
U.S. 49, 50; BAUMGARTNER V. UNITED STATES, 322 U.S. 665, 670-671;
NORRIS V. ALABAMA, 294 U.S. 587, 589-590.  COMPARE APPLEBY V. CITY OF
NEW YORK, 271 U.S. 364, 379-380.  BUT THIS COURT SHOULD NOT RE-EXAMINE
DETERMINATIONS OF THE STATE COURTS ON "THOSE MATTERS WHICH ARE USUALLY
TERMED ISSUES OF FACT."  WATTS V. INDIANA, SUPRA, AT 50.  AND IT SHOULD
NOT OVERTURN A FAIR APPRAISAL OF FACTS MADE BY STATE COURTS IN THE
LIGHT OF THEIR KNOWLEDGE OF LOCAL CONDITIONS. 

HERE, FEINER FORCED PEDESTRIANS TO WALK IN THE STREET BY COLLECTING A
CROWD ON THE PUBLIC SIDEWALK, HE ATTRACTED ADDITIONAL ATTENTION BY
USING SOUND AMPLIFIERS, HE INDULGED IN NAME-CALLING, HE TOLD PART OF
HIS AUDIENCE THAT IT SHOULD RISE UP IN ARMS.  IN THE CROWD OF 75 TO 80
PERSONS, THERE WAS ANGRY MUTTERING AND PUSHING.  UNDER THESE
CIRCUMSTANCES, AND IN ORDER TO PREVENT A DISTURBANCE OF THE PEACE, AN
OFFICER ASKED FEINER TO STOP SPEAKING.  WHEN HE HAD TWICE IGNORED THE
REQUEST, FEINER WAS ARRESTED.  THE TRIAL JUDGE CONCLUDED THAT "THE
OFFICERS WERE FULLY JUSTIFIED IN FEELING THAT A SITUATION WAS
DEVELOPING WHICH COULD VERY, VERY EASILY RESULT IN A SERIOUS
DISORDER."  HIS VIEW WAS SUSTAINED BY AN INTERMEDIATE APPELLATE COURT
AND BY A UNANIMOUS DECISION OF THE NEW YORK COURT OF APPEALS.  300 N.Y.
391, 91 N.E.2D 316.  THE ESTIMATE OF A PARTICULAR LOCAL SITUATION THUS
COMES HERE WITH THE MOMENTUM OF THE WEIGHTIEST JUDICIAL AUTHORITY OF
NEW YORK. 

THIS COURT HAS OFTEN EMPHASIZED THAT IN THE EXERCISE OF OUR AUTHORITY
OVER STATE COURT DECISIONS THE DUE PROCESS CLAUSE MUST NOT BE CONSTRUED
IN AN ABSTRACT AND DOCTRINAIRE WAY BY DISREGARDING LOCAL CONDITIONS. 
IN CONSIDERING THE DEGREE OF RESPECT TO BE GIVEN FINDINGS BY THE
HIGHEST COURT OF A STATE IN CASES INVOLVING THE DUE PROCESS CLAUSE, THE
COURSE OF DECISIONS BY THAT COURT SHOULD BE TAKEN INTO ACCOUNT. 
PARTICULARLY WITHIN THE AREA OF DUE PROCESS COLLOQUIALLY CALLED "CIVIL
LIBERTIES," IT IS IMPORTANT WHETHER SUCH A COURSE OF DECISIONS REFLECTS
A CAVALIER ATTITUDE TOWARD CIVIL LIBERTIES OR REAL REGARD FOR THEM. 
ONLY UNFAMILIARITY WITH ITS DECISIONS AND THE OUTLOOK OF ITS JUDGES
COULD GENERATE A NOTION THAT THE COURT OF APPEALS OF NEW YORK IS
INHOSPITABLE TO CLAIMS OF CIVIL LIBERTIES OR IS WANTING IN RESPECT FOR
THIS COURT'S DECISIONS IN SUPPORT OF THEM.  IT IS PERTINENT, THEREFORE,
TO NOTE THAT ALL MEMBERS OF THE NEW YORK COURT ACCEPTED THE FINDING
THAT FEINER WAS STOPPED NOT BECAUSE THE LISTENERS OR POLICE OFFICERS
DISAGREED WITH HIS VIEWS BUT BECAUSE THESE OFFICERS WERE HONESTLY
CONCERNED WITH PREVENTING A BREACH OF THE PEACE.  THIS UNANIMITY IS ALL
THE MORE PERSUASIVE SINCE THREE MEMBERS OF THE COURT HAD DISSENTED,
ONLY THREE MONTHS EARLIER, IN FAVOR OF KUNZ, A MAN WHOSE VITUPERATIVE
UTTERANCES MUST HAVE BEEN HIGHLY OFFENSIVE TO THEM. 

AS WAS SAID IN HAGUE V. C.I.O., SUPRA, UNCONTROLLED OFFICIAL
SUPPRESSION OF THE SPEAKER "CANNOT BE MADE A SUBSTITUTE FOR THE DUTY TO
MAINTAIN ORDER."  307 U.S. AT 516.  WHERE CONDUCT IS WITHIN THE
ALLOWABLE LIMITS OF FREE SPEECH, THE POLICE ARE PEACE OFFICERS FOR THE
SPEAKER AS WELL AS FOR HIS HEARERS.  BUT THE POWER EFFECTIVELY TO
PRESERVE ORDER CANNOT BE DISPLACED BY GIVING A SPEAKER COMPLETE
IMMUNITY.  HERE, THERE WERE TWO POLICE OFFICERS PRESENT FOR 20
MINUTES.  THEY INTERFERED ONLY WHEN THEY APPREHENDED IMMINENCE OF
VIOLENCE.  IT IS NOT A CONSTITUTIONAL PRINCIPLE THAT, IN ACTING TO
PRESERVE ORDER, THE POLICE MUST PROCEED AGAINST THE CROWD, WHATEVER ITS
SIZE AND TEMPER, AND NOT AGAINST THE SPEAKER. 

IT IS TRUE THAT BREACH-OF-PEACE STATUTES, LIKE MOST TOOLS OF
GOVERNMENT, MAY BE MISUSED.  ENFORCEMENT OF THESE STATUTES CALLS FOR
PUBLIC TOLERANCE AND INTELLIGENT POLICE ADMINISTRATION.  THESE, IN THE
LONG RUN, MUST GIVE SUBSTANCE TO WHATEVER THIS COURT MAY SAY ABOUT FREE
SPEECH.  BUT THE POSSIBILITY OF MISUSE IS NOT ALONE A SUFFICIENT REASON
TO DENY NEW YORK THE POWER HERE ASSERTED OR SO LIMIT IT BY
CONSTITUTIONAL CONSTRUCTION AS TO DENY ITS PRACTICAL EXERCISE. 

FN1  IN M'ARA V. MAGISTRATES OF EDINBURGH, 1913 S.C. 1059, A STREET
ORATOR WHO WAS ARRESTED FOR SPEAKING WITHOUT A LICENSE IN THE STREETS
OF EDINBURGH, CONTRARY TO THE MAGISTRATES' PROCLAMATION, CHALLENGED THE
ARREST.  THE COURT OF SESSION AFFIRMED A HOLDING THAT MAGISTRATES HAD
NO AUTHORITY TO ISSUE THE PROCLAMATION BECAUSE THE ACT OF 1606 GRANTING
THEM AUTHORITY WAS IN DESUETUDE.  HOWEVER, IN HIS JUDGMENT, LORD
DUNEDIN, ONE OF THE MOST TRENCHANT MINDS IN MODERN ANGLO-AMERICAN
JUDICIAL HISTORY, DEALT WITH THE ARGUMENT THAT THERE IS AN ABSOLUTE
RIGHT TO SPEAK IN PUBLIC PLACES.  ALTHOUGH HE WAS APPLYING SCOTS LAW,
NOT A WRITTEN CONSTITUTION, LORD DUNEDIN'S REMARKS ARE APPOSITE HERE: 

"NOW THE RIGHT OF FREE SPEECH UNDOUBTEDLY EXISTS, AND THE RIGHT OF
FREE SPEECH IS TO PROMULGATE YOUR OPINIONS BY SPEECH SO LONG AS YOU DO
NOT UTTER WHAT IS TREASONABLE OR LIBELLOUS, OR MAKE YOURSELF OBNOXIOUS
TO THE STATUTES THAT DEAL WITH BLASPHEMY AND OBSCENITY.  BUT THE RIGHT
OF FREE SPEECH IS A PERFECTLY SEPARATE THING FROM THE QUESTION OF THE
PLACE WHERE THAT RIGHT IS TO BE EXERCISED.  YOU MAY SAY WHAT YOU LIKE
PROVIDED IT IS NOT OBNOXIOUS IN THE WAYS I HAVE INDICATED, BUT THAT
DOES NOT MEAN THAT YOU MAY SAY IT ANYWHERE. 

"I AM NOT GOING TO DEAL WITH WHAT MAY BE THE CASE IN OPEN SPACES OR
PUBLIC PLACES.  IT SEEMS TO ME THAT NO GENERAL PRONOUNCEMENT UPON THAT
SUBJECT COULD BE MADE, BECAUSE, ALTHOUGH FOR CONVENIENCE SAKE ONE OFTEN
SPEAKS OF OPEN SPACES OR OF PUBLIC PLACES, THE TRUTH IS THAT OPEN
SPACES AND PUBLIC PLACES DIFFER VERY MUCH IN THEIR CHARACTER, AND
BEFORE YOU COULD SAY WHETHER A CERTAIN THING COULD BE DONE IN A CERTAIN
PLACE YOU WOULD HAVE TO KNOW THE HISTORY OF THE PARTICULAR PLACE.  FOR
EXAMPLE, THERE MAY BE CERTAIN PLACES WHICH ARE DEDICATED TO CERTAIN
USES, ...  AND THINGS THAT OTHERWISE WERE LAWFUL MIGHT BE RESTRAINED IF
THEY INTERFERED WITH THE PURPOSES OF THAT DEDICATION.  EACH OF THOSE
CASES MUST BE DEALT WITH WHEN IT ARISES.  HERE WE ARE DEALING WITH A
STREET PROPER, BECAUSE THIS PLACE AT THE MOUND IS JUST ONE OF THE
STREETS OF THE CITY.  IT IS A THOROUGHFARE, ALTHOUGH, PROBABLY, NOT A
VERY MUCH USED THOROUGHFARE AT THAT PARTICULAR CORNER.  IN SUCH A PLACE
THERE IS NOT THE SLIGHTEST RIGHT IN ANYONE TO HOLD A MEETING AS SUCH. 
...  "  ID. AT 1073-1074. 

FN2  THIS IS THE SECOND TIME THAT THE ORDINANCE WHICH GAVE RISE TO
KUNZ'S CONVICTION HAS BEEN BEFORE THE COURT.  THAT FACT IS RELEVANT
HOWEVER ONLY FOR THE PURPOSE OF APPRECIATING THAT THE CONTEXT IN WHICH
AND THE CIRCUMSTANCES UNDER WHICH THE COURT CONSIDERED THE ORDINANCE
THE FIRST TIME ARE QUITE DIFFERENT FROM THE CONDITIONS UNDERLYING THE
PRESENT APPEAL.  THE FIRST TIME THE COURT HAD TO CONSIDER THE ORDINANCE
WAS ON AN APPEAL FROM PEOPLE V. SMITH, 263 N.Y. 255, 188 N.E. 745.  IN
THAT CASE THE NEW YORK COURT OF APPEALS SUSTAINED A CONVICTION FOR
EXPOUNDING ATHEISM IN THE STREET WITHOUT A PERMIT.  THE APPEAL TO THIS
COURT WAS BASED SOLELY ON THE ARGUMENT THAT REGULATION OF SPEAKERS ON
RELIGION WITHOUT REGULATING OTHER SPEAKERS WAS AN UNREASONABLE
CLASSIFICATION.  RESPONDING TO THIS ISSUE, THE COURT SUMMARILY
DISMISSED THE APPEAL, 292 U.S. 606, CITING THREE CASES:  PATSONE V.
PENNSYLVANIA, 232 U.S. 138, 144; SILVER V. SILVER, 280 U.S. 117, 123;
AND SPROLES V. BINFORD, 286 U.S. 374, 396.  ALL THREE CONCERN THE
PROBLEM OF REASONABLE CLASSIFICATION AND IN NO WISE BEAR ON THE ISSUE
NOW BEFORE US.  THE DIFFERENCE IN THE ISSUES BETWEEN THE SMITH CASE AND
THE KUNZ CASE IS STRIKINGLY MANIFESTED BY THE FACT THAT THE CONVICTION
OF SMITH WAS AFFIRMED BY A UNANIMOUS COURT OF APPEALS OF NEW YORK,
WHEREAS IN THE PRESENT CASE THE CONVICTION WAS AFFIRMED BY THE
NARROWEST DIVISION IN THAT COURT. 

IT MUST ALSO BE BORNE IN MIND THAT THE SMITH CASE WAS DISPOSED OF IN
1934, BEFORE THE SERIES OF DECISIONS BEGINNING WITH LOVELL V. GRIFFIN,
303 U.S. 444, ALLOWING MUCH LESS SCOPE TO LOCAL OFFICIALS IN THE
CONTROL OF PUBLIC UTTERANCES THAN HAD THERETOFORE BEEN TAKEN FOR
GRANTED.  COMPARE THE LANGUAGE OF DAVIS V. MASSACHUSETTS, 167 U.S. 43,
AS WELL AS THE ATMOSPHERE WHICH IT GENERATED.  SO FAR AS THE SPECIAL
CIRCUMSTANCES RELATING TO THE CITY OF NEW YORK ARE CONCERNED, IT IS
PERTINENT TO NOTE THAT ALL THREE DISSENTING JUDGES BELOW ARE RESIDENTS
OF NEW YORK CITY, WHEREAS NOT ONE OF THE FOUR CONSTITUTING THE MAJORITY
IS A DENIZEN OF THAT CITY.  THE THREE NEW YORK CITY DISSENTING JUDGES
ARE PRESUMABLY AS ALIVE TO THE NEED FOR SECURING PEACE AMONG THE
VARIOUS RACIAL AND RELIGIOUS GROUPS IN NEW YORK, AND TO THE OPPORTUNITY
OF ACHIEVING IT WITHIN THE CONSTITUTIONAL LIMITS, AS ONE WHO HAS ONLY A
VISITOR'S ACQUAINTANCE WITH THE TOLERANT AND GENIAL COMMUNAL LIFE OF
NEW YORK CITY. 
..END :







KUNZ V. NEW YORK, 340 U.S. 290 


NO. 50.  ARGUED OCTOBER 17, 1950.  - DECIDED JANUARY 15, 1951.  - 300
N.Y. 273, 90 N.E.2D 455, REVERSED. 


1.  A CITY ORDINANCE WHICH PRESCRIBES NO APPROPRIATE STANDARD FOR
ADMINISTRATIVE ACTION AND GIVES AN ADMINISTRATIVE OFFICIAL
DISCRETIONARY POWER TO CONTROL IN ADVANCE THE RIGHT OF CITIZENS TO
SPEAK ON RELIGIOUS MATTERS ON THE CITY STREETS IS INVALID UNDER THE
FIRST AND FOURTEENTH AMENDMENTS.  PP. 290-295. 

2.  IN 1946, APPELLANT OBTAINED FROM THE CITY POLICE COMMISSIONER A
PERMIT TO HOLD RELIGIOUS MEETINGS ON THE STREETS OF NEW YORK CITY
DURING THAT YEAR ONLY.  IT WAS REVOKED ON EVIDENCE THAT HE HAD
RIDICULED AND DENOUNCED OTHER RELIGIOUS BELIEFS, IN VIOLATION OF A
CRIMINAL PROVISION OF THE ORDINANCE UNDER WHICH THE PERMIT WAS ISSUED. 
THE ORDINANCE CONTAINED NO PROVISION FOR REVOCATION OF SUCH PERMITS AND
NO STANDARD TO GUIDE ADMINISTRATIVE ACTIONS IN GRANTING OR DENYING
PERMITS.  IN 1948, APPELLANT'S APPLICATION FOR A SIMILAR PERMIT WAS
DENIED AND HE WAS CONVICTED FOR HOLDING A RELIGIOUS MEETING ON THE
STREETS WITHOUT A PERMIT.  HELD:  THE CONVICTION IS REVERSED.  PP. 290
295. 

KUNZ V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

APPELLANT WAS CONVICTED FOR HOLDING A RELIGIOUS MEETING ON THE CITY
STREETS WITHOUT A PERMIT IN VIOLATION OF ADMINISTRATIVE CODE OF N.Y.
CITY, C. 18, SEC. 435-7.0.  THE COURT OF APPEALS OF NEW YORK AFFIRMED. 
300 N.Y. 273, 90 N.E.2D 455.  ON APPEAL TO THIS COURT, REVERSED, P.
295. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

NEW YORK CITY HAS ADOPTED AN ORDINANCE WHICH MAKES IT UNLAWFUL TO
HOLD PUBLIC WORSHIP MEETINGS ON THE STREETS WITHOUT FIRST OBTAINING A
PERMIT FROM THE CITY POLICE COMMISSIONER N1.  APPELLANT, CARL JACOB
KUNZ, WAS CONVICTED AND FINED $10 FOR VIOLATING THIS ORDINANCE BY
HOLDING A RELIGIOUS MEETING WITHOUT A PERMIT.  THE CONVICTION WAS
AFFIRMED BY THE APPELLATE PART OF THE COURT OF SPECIAL SESSIONS, AND BY
THE NEW YORK COURT OF APPEALS, THREE JUDGES DISSENTING, 300 N.Y. 273,
90 N.E.2D 455(1950).  THE CASE IS HERE ON APPEAL, IT HAVING BEEN URGED
THAT THE ORDINANCE IS INVALID UNDER THE FOURTEENTH AMENDMENT. 

APPELLANT IS AN ORDAINED BAPTIST MINISTER WHO SPEAKS UNDER THE
AUSPICES OF THE "OUTDOOR GOSPEL WORK," OF WHICH HE IS THE DIRECTOR.  HE
HAS BEEN PREACHING FOR ABOUT SIX YEARS, AND STATES THAT IT IS HIS
CONVICTION AND DUTY TO "GO OUT ON THE HIGHWAYS AND BYWAYS AND PREACH
THE WORD OF GOD."  IN 1946, HE APPLIED FOR AND RECEIVED A PERMIT UNDER
THE ORDINANCE IN QUESTION, THERE BEING NO QUESTION THAT APPELLANT COMES
WITHIN THE CLASSES OF PERSONS ENTITLED TO RECEIVE PERMITS UNDER THE
ORDINANCE.  FN2  THIS PERMIT, LIKE ALL OTHERS, WAS GOOD ONLY FOR THE
CALENDAR YEAR IN WHICH ISSUED.  IN NOVEMBER, 1946, HIS PERMIT WAS
REVOKED AFTER A HEARING BY THE POLICE COMMISSIONER.  THE REVOCATION WAS
BASED ON EVIDENCE THAT HE HAD RIDICULED AND DENOUNCED OTHER RELIGIOUS
BELIEFS IN HIS MEETINGS. 

ALTHOUGH THE PENALTIES OF THE ORDINANCE APPLY TO ANYONE WHO "RIDICULES
AND DENOUNCES OTHER RELIGIOUS BELIEFS," THE ORDINANCE DOES NOT SPECIFY
THIS AS A GROUND FOR PERMIT REVOCATION.  INDEED, THERE IS NO MENTION IN
THE ORDINANCE OF ANY POWER OF REVOCATION.  HOWEVER, APPELLANT DID NOT
SEEK JUDICIAL OR ADMINISTRATIVE REVIEW OF THE REVOCATION PROCEEDINGS,
AND ANY QUESTION AS TO THE PROPRIETY OF THE REVOCATION IS NOT BEFORE US
IN THIS CASE.  IN ANY EVENT, THE REVOCATION AFFECTED APPELLANT'S RIGHTS
TO SPEAK IN 1946 ONLY.  APPELLANT APPLIED FOR ANOTHER PERMIT IN 1947,
AND AGAIN IN 1948, BUT WAS NOTIFIED EACH TIME THAT HIS APPLICATION WAS
"DISAPPROVED," WITH NO REASON FOR THE DISAPPROVAL BEING GIVEN.  ON
SEPTEMBER 11, 1948, APPELLANT WAS ARRESTED FOR SPEAKING AT COLUMBUS
CIRCLE IN NEW YORK CITY WITHOUT A PERMIT.  IT IS FROM THE CONVICTION
WHICH RESULTED THAT THIS APPEAL HAS BEEN TAKEN. 

APPELLANT'S CONVICTION WAS THUS BASED UPON HIS FAILURE TO POSSESS A
PERMIT FOR 1948.  WE ARE HERE CONCERNED ONLY WITH THE PROPRIETY OF THE
ACTION OF THE POLICE COMMISSIONER IN REFUSING TO ISSUE THAT PERMIT. 
DISAPPROVAL OF THE 1948 PERMIT APPLICATION BY THE POLICE COMMISSIONER
WAS JUSTIFIED BY THE NEW YORK COURTS ON THE GROUND THAT A PERMIT HAD
PREVIOUSLY BEEN REVOKED "FOR GOOD REASONS."  FN3  IT IS NOTEWORTHY THAT
THERE IS NO MENTION IN THE ORDINANCE OF REASONS FOR WHICH SUCH A PERMIT
APPLICATION CAN BE REFUSED.  THIS INTERPRETATION ALLOWS THE POLICE
COMMISSIONER, AN ADMINISTRATIVE OFFICIAL, TO EXERCISE DISCRETION IN
DENYING SUBSEQUENT PERMIT APPLICATIONS ON THE BASIS OF HIS
INTERPRETATION, AT THAT TIME, OF WHAT IS DEEMED TO BE CONDUCT CONDEMNED
BY THE ORDINANCE.  WE HAVE HERE, THEN, AN ORDINANCE WHICH GIVES AN
ADMINISTRATIVE OFFICIAL DISCRETIONARY POWER TO CONTROL IN ADVANCE THE
RIGHT OF CITIZENS TO SPEAK ON RELIGIOUS MATTERS ON THE STREETS OF NEW
YORK.  AS SUCH, THE ORDINANCE IS CLEARLY INVALID AS A PRIOR RESTRAINT
ON THE EXERCISE OF FIRST AMENDMENT RIGHTS. 

IN CONSIDERING THE RIGHT OF A MUNICIPALITY TO CONTROL THE USE OF
PUBLIC STREETS FOR THE EXPRESSION OF RELIGIOUS VIEWS, WE START WITH THE
WORDS OF MR. JUSTICE ROBERTS THAT "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."  HAGUE V. C.I.O., 307 U.S. 496, 515(1939).  ALTHOUGH
THIS COURT HAS RECOGNIZED THAT A STATUTE MAY BE ENACTED WHICH PREVENTS
SERIOUS INTERFERENCE WITH NORMAL USAGE OF STREETS AND PARKS, COX V. NEW
HAMPSHIRE, 312 U.S. 569(1941), WE 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.  IN CANTWELL V. CONNECTICUT, 310 U.S. 296(1940), THIS
COURT HELD INVALID AN ORDINANCE WHICH REQUIRED A LICENSE FOR SOLICITING
MONEY FOR RELIGIOUS CAUSES.  SPEAKING FOR A UNANIMOUS COURT, MR.
JUSTICE ROBERTS SAID:  "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."  310 U.S.
AT 307.  TO THE SAME EFFECT ARE LOVELL V. GRIFFIN, 303 U.S. 444(1938);
HAGUE V. C.I.O., 307 U.S. 496(1939); LARGENT V. TEXAS, 318 U.S.
418(1943).  IN SAIA V. NEW YORK, 334 U.S. 558(1948), WE REAFFIRMED THE
INVALIDITY OF SUCH PRIOR RESTRAINTS UPON THE RIGHT TO SPEAK:  "WE HOLD
THAT SEC. 3 OF THIS ORDINANCE IS UNCONSTITUTIONAL ON ITS FACE, FOR IT
ESTABLISHES A PREVIOUS RESTRAINT ON THE RIGHT OF FREE SPEECH IN
VIOLATION OF THE FIRST AMENDMENT WHICH IS PROTECTED BY THE FOURTEENTH
AMENDMENT AGAINST STATE ACTION.  TO USE A LOUD-SPEAKER OR AMPLIFIER ONE
HAS TO GET A PERMIT FROM THE CHIEF OF POLICE.  THERE ARE NO STANDARDS
PRESCRIBED FOR THE EXERCISE OF HIS DISCRETION."  334 U.S. AT 559-560. 

THE COURT BELOW HAS MISTAKENLY DERIVED SUPPORT FOR ITS CONCLUSION
FROM THE EVIDENCE PRODUCED AT THE TRIAL THAT APPELLANT'S RELIGIOUS
MEETINGS HAD, IN THE PAST, CAUSED SOME DISORDER.  THERE ARE APPROPRIATE
PUBLIC REMEDIES TO PROTECT THE PEACE AND ORDER OF THE COMMUNITY IF
APPELLANT'S SPEECHES SHOULD RESULT IN DISORDER OR VIOLENCE.  "IN THE
PRESENT CASE, WE HAVE NO OCCASION TO INQUIRE AS TO THE PERMISSIBLE
SCOPE OF SUBSEQUENT PUNISHMENT."  NEAR V. MINNESOTA, 283 U.S. 697,
715(1931).  WE DO NOT EXPRESS ANY OPINION ON THE PROPRIETY OF PUNITIVE
REMEDIES WHICH THE NEW YORK AUTHORITIES MAY UTILIZE.  WE ARE HERE
CONCERNED WITH SUPPRESSION - NOT PUNISHMENT.  IT IS SUFFICIENT TO SAY
THAT NEW YORK CANNOT VEST RESTRAINING CONTROL OVER THE RIGHT TO SPEAK
ON RELIGIOUS SUBJECTS IN AN ADMINISTRATIVE OFFICIAL WHERE THERE ARE NO
APPROPRIATE STANDARDS TO GUIDE HIS ACTION.  REVERSED. 

FN1  SECTION 435-7.0 OF CHAPTER 18 OF THE ADMINISTRATIVE CODE OF THE
CITY OF NEW YORK READS AS FOLLOWS: 

"A.  PUBLIC WORSHIP.  - IT SHALL BE UNLAWFUL FOR ANY PERSON TO BE
CONCERNED OR INSTRUMENTAL IN COLLECTING OR PROMOTING ANY ASSEMBLAGE OF
PERSONS FOR PUBLIC WORSHIP OR EXHORTATION, OR TO RIDICULE OR DENOUNCE
ANY FORM OF RELIGIOUS BELIEF, SERVICE OR REVERENCE, OR TO PREACH OR
EXPOUND ATHEISM OR AGNOSTICISM, OR UNDER ANY PRETENSE THEREFOR, IN ANY
STREET.  A CLERGYMAN OR MINISTER OF ANY DENOMINATION, HOWEVER, OR ANY
PERSON RESPONSIBLE TO OR REGULARLY ASSOCIATED WITH ANY CHURCH OR
INCORPORATED MISSIONARY SOCIETY, OR ANY LAY-PREACHER, OR LAY-READER MAY
CONDUCT RELIGIOUS SERVICES, OR ANY AUTHORIZED REPRESENTATIVE OF A DULY
INCORPORATED ORGANIZATION DEVOTED TO THE ADVANCEMENT OF THE PRINCIPLES
OF ATHEISM OR AGNOSTICISM MAY PREACH OR EXPOUND SUCH CAUSE, IN ANY
PUBLIC PLACE OR PLACES SPECIFIED IN A PERMIT THEREFOR WHICH MAY BE
GRANTED AND ISSUED BY THE POLICE COMMISSIONER.  THIS SECTION SHALL NOT
BE CONSTRUED TO PREVENT ANY CONGREGATION OF THE BAPTIST DENOMINATION
FROM ASSEMBLING IN A PROPER PLACE FOR THE PURPOSE OF PERFORMING THE
RITES OF BAPTISM, ACCORDING TO THE CEREMONIES OF THAT CHURCH. 

"B.  INTERFERENCE WITH STREET SERVICES.  - IT SHALL BE UNLAWFUL FOR
ANY PERSON TO DISTURB, MOLEST OR INTERRUPT ANY CLERGYMAN, MINISTER,
MISSIONARY, LAY-PREACHER OR LAY-READER, WHO SHALL BE CONDUCTING
RELIGIOUS SERVICES BY AUTHORITY OF A PERMIT, ISSUED HEREUNDER, OR ANY
MINISTER OR PEOPLE WHO SHALL BE PERFORMING THE RITE OF BAPTISM AS
PERMITTED HEREIN, NOR SHALL ANY PERSON COMMIT ANY RIOT OR DISORDER IN
ANY SUCH ASSEMBLY. 

"C.  VIOLATIONS.  - ANY PERSON WHO SHALL VIOLATE ANY PROVISION OF
THIS SECTION, UPON CONVICTION THEREOF, SHALL BE PUNISHED BY A FINE OF
NOT MORE THAN TWENTY-FIVE DOLLARS, OR IMPRISONMENT FOR THIRTY DAYS, OR
BOTH." 

THIS ORDINANCE WAS PREVIOUSLY CHALLENGED IN PEOPLE V. SMITH, 263 N.Y.
255, 188 N.E. 745, APPEAL DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL
QUESTION, SMITH V. NEW YORK, 292 U.S. 606(1934).  SMITH, WHO HAD NOT
APPLIED FOR A PERMIT UNDER THE ORDINANCE, ARGUED THAT THE REGULATION OF
RELIGIOUS SPEAKERS ALONE CONSTITUTED AN UNREASONABLE CLASSIFICATION. 
NONE OF THE QUESTIONS INVOLVED IN THE INSTANT APPEAL WERE PRESENTED IN
THE PREVIOUS CASE. 

FN2  THE NEW YORK COURT OF APPEALS HAS CONSTRUED THE ORDINANCE TO
REQUIRE THAT ALL INITIAL REQUESTS FOR PERMITS BY ELIGIBLE APPLICANTS
MUST BE GRANTED.  300 N.Y. AT 276, 90 N.E.2D AT 456. 

FN3  THE NEW YORK COURT OF APPEALS SAID:  "THE COMMISSIONER HAD NO
REASON TO ASSUME, AND NO PROMISE WAS MADE, THAT DEFENDANT WANTED A NEW
PERMIT FOR ANY USES DIFFERENT FROM THE DISORDERLY ONES HE HAD BEEN
GUILTY OF BEFORE."  300 N.Y. AT 278, 90 N.E.2D AT 457. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

(FOR OPINION OF MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT, SEE
ANTE, P. 273. 

MR. JUSTICE JACKSON, DISSENTING. 

ESSENTIAL FREEDOMS ARE TODAY THREATENED FROM WITHOUT AND WITHIN.  IT
MAY BECOME DIFFICULT TO PRESERVE HERE WHAT A LARGE PART OF THE WORLD
HAS LOST - THE RIGHT TO SPEAK, EVEN TEMPERATELY, ON MATTERS VITAL TO
SPIRIT AND BODY.  IN SUCH A SETTING, TO BLANKET HATEFUL AND HATE
STIRRING ATTACKS ON RACES AND FAITHS UNDER THE PROTECTIONS FOR FREEDOM
OF SPEECH MAY BE A NOBLE INNOVATION.  ON THE OTHER HAND, IT MAY BE A
QUIXOTIC TILT AT WINDMILLS WHICH BELITTLES GREAT PRINCIPLES OF
LIBERTY.  ONLY TIME CAN TELL.  BUT I INCLINE TO THE LATTER VIEW AND
CANNOT ASSENT TO THE DECISION. 

                                  I. 

TO KNOW WHAT WE ARE DOING, WE MUST FIRST LOCATE THE POINT AT WHICH
RIGHTS ASSERTED BY KUNZ CONFLICT WITH POWERS ASSERTED BY THE ORGANIZED
COMMUNITY.  NEW YORK CITY HAS PLACED NO LIMITATION UPON ANY SPEECH KUNZ
MAY CHOOSE TO MAKE ON PRIVATE PROPERTY, BUT IT DOES REQUIRE A PERMIT TO
HOLD RELIGIOUS MEETINGS IN ITS STREETS.  THE ORDINANCE, NEITHER BY ITS
TERMS NOR AS IT HAS BEEN APPLIED, PROHIBITED KUNZ,  FN1  EVEN IN STREET
MEETINGS, FROM PREACHING HIS OWN RELIGION OR MAKING ANY TEMPERATE
CRITICISM OR REFUTATION OF OTHER RELIGIONS; INDEED, FOR THE YEAR 1946,
HE WAS GIVEN A GENERAL PERMIT TO DO SO.  HIS MEETINGS, HOWEVER, BROUGHT
"A FLOOD OF COMPLAINTS" TO CITY AUTHORITIES THAT HE WAS ENGAGING IN
SCURRILOUS ATTACKS ON CATHOLICS AND JEWS.  ON NOTICE, HE WAS GIVEN A
HEARING AT WHICH EIGHTEEN COMPLAINANTS APPEARED.  THE COMMISSIONER
REVOKED HIS PERMIT AND APPLICATIONS FOR 1947 AND 1948 WERE REFUSED. 
FOR A TIME HE WENT ON HOLDING MEETINGS WITHOUT A PERMIT IN COLUMBUS
CIRCLE, WHERE IN SEPTEMBER, 1948, HE WAS ARRESTED FOR VIOLATION OF THE
ORDINANCE.  HE WAS CONVICTED AND FINED TEN DOLLARS. 

AT THESE MEETINGS, KUNZ PREACHED, AMONG MANY OTHER THINGS OF LIKE
TENOR, THAT "THE CATHOLIC CHURCH MAKES MERCHANDISE OUT OF SOULS," THAT
CATHOLICISM IS "A RELIGION OF THE DEVIL," AND THAT THE POPE IS "THE
ANTI-CHRIST."  THE JEWS HE DENOUNCED AS "CHRIST-KILLERS," AND HE SAID
OF THEM, "ALL THE GARBAGE THAT DIDN'T BELIEVE IN CHRIST SHOULD HAVE
BEEN BURNT IN THE INCINERATORS.  IT'S A SHAME THEY ALL WEREN'T." 

THESE UTTERANCES, AS ONE MIGHT EXPECT, STIRRED STRIFE AND THREATENED
VIOLENCE.  TESTIFYING IN HIS OWN BEHALF, KUNZ STATED THAT HE "BECAME
ACQUAINTED WITH" ONE OF THE COMPLAINING WITNESSES, WHOM HE THOUGHT TO
BE A JEW, "WHEN HE HAPPENED TO SOCK ONE OF MY CHRISTIAN BOYS IN THE
PUSS."  KUNZ HIMSELF COMPLAINED TO THE AUTHORITIES, CHARGING A WOMAN
INTERRUPTER WITH DISORDERLY CONDUCT.  HE ALSO TESTIFIED THAT WHEN AN
OFFICER IS NOT PRESENT AT HIS MEETINGS "I HAVE TROUBLE THEN," BUT "WITH
AN OFFICER, NO TROUBLE." 

THE CONTENTION WHICH KUNZ BRINGS HERE AND WHICH THIS COURT SUSTAINS
IS THAT SUCH SPEECHES ON THE STREETS ARE WITHIN HIS CONSTITUTIONAL
FREEDOM AND THEREFORE NEW YORK CITY HAS NO POWER TO REQUIRE A PERMIT. 
HE DOES NOT DENY THAT THIS HAS BEEN AND WILL CONTINUE TO BE HIS LINE OF
TALK.  FN2  HE DOES NOT CLAIM THAT HE SHOULD HAVE BEEN GRANTED A
PERMIT; HE ATTACKS THE WHOLE SYSTEM OF CONTROL OF STREET MEETINGS AND
SAYS THE CONSTITUTION GIVES HIM PERMISSION TO SPEAK AND HE NEEDS NONE
FROM THE CITY. 

                                 II. 

THE SPEECHES WHICH KUNZ HAS MADE AND WHICH HE ASSERTS HE HAS A RIGHT
TO MAKE IN THE FUTURE WERE PROPERLY HELD BY THE COURTS BELOW TO BE OUT
OF BOUNDS FOR A STREET MEETING AND NOT CONSTITUTIONALLY PROTECTED. 
THIS COURT, WITHOUT DISCUSSION, MAKES A CONTRARY ASSUMPTION WHICH IS
BASIC TO ITS WHOLE OPINION.  IT SAYS NEW YORK HAS GIVEN "AN
ADMINISTRATIVE OFFICIAL DISCRETIONARY POWER TO CONTROL IN ADVANCE THE
RIGHT OF CITIZENS TO SPEAK ON RELIGIOUS MATTERS ON THE STREETS." 
AGAIN, IT SAYS THAT "PRIOR RESTRAINT ON THE EXERCISE OF FIRST AMENDMENT
RIGHTS" INVALIDATES THE ORDINANCE.  THIS SEEMS TO TAKE THE LAST STEP
FIRST, ASSUMING AS A PREMISE WHAT IS IN QUESTION.  OF COURSE, IF KUNZ
IS ONLY EXERCISING HIS CONSTITUTIONAL RIGHTS, THEN NEW YORK CAN NEITHER
RESTRAIN NOR PUNISH HIM.  BUT I DOUBT THAT THE COURT'S ASSUMPTION WILL
SURVIVE ANALYSIS.    THIS COURT TODAY INITIATES THE DOCTRINE THAT
LANGUAGE SUCH AS THIS, IN THE ENVIRONMENT OF THE STREET MEETING, IS
IMMUNE FROM PRIOR MUNICIPAL CONTROL.  WE WOULD HAVE A VERY DIFFERENT
QUESTION IF NEW YORK HAD PRESUMED TO SAY THAT KUNZ COULD NOT SPEAK HIS
PIECE IN HIS OWN PULPIT OR HALL.  BUT IT HAS UNDERTAKEN TO RESTRAIN HIM
ONLY IF HE CHOOSES TO SPEAK AT STREET MEETINGS.  THERE IS A WORLD OF
DIFFERENCE.  THE STREET PREACHER TAKES ADVANTAGE OF PEOPLE'S PRESENCE
ON THE STREETS TO IMPOSE HIS MESSAGE UPON WHAT, IN A SENSE, IS A
CAPTIVE AUDIENCE.  A MEETING ON PRIVATE PROPERTY IS MADE UP OF AN
AUDIENCE THAT HAS VOLUNTEERED TO LISTEN.  THE QUESTION, THEREFORE, IS
NOT WHETHER NEW YORK COULD, IF IT TRIED, SILENCE KUNZ, BUT WHETHER IT
MUST PLACE ITS STREETS AT HIS SERVICE TO HURL INSULTS AT THE PASSER
BY. 

WHAT MR. JUSTICE HOLMES SAID FOR A UNANIMOUS COURT IN SCHENCK V.
UNITED STATES, 249 U.S. 47, 52, HAS BECOME AN AXIOM:  "THE MOST
STRINGENT PROTECTION OF FREE SPEECH WOULD NOT PROTECT A MAN IN FALSELY
SHOUTING FIRE IN A THEATRE AND CAUSING A PANIC."  THIS CONCEPT WAS
APPLIED IN ONE OF ITS FEW UNANIMOUS DECISIONS IN RECENT YEARS, WHEN,
THROUGH MR. JUSTICE MURPHY, THE COURT SAID:  "THERE ARE CERTAIN WELL
DEFINED AND NARROWLY LIMITED CLASSES OF SPEECH, THE PREVENTION AND
PUNISHMENT OF WHICH HAVE NEVER BEEN THOUGHT TO RAISE ANY CONSTITUTIONAL
PROBLEM.  THESE INCLUDE THE LEWD AND OBSCENE, THE PROFANE, THE
LIBELOUS, AND THE INSULTING OR 'FIGHTING' WORDS - THOSE WHICH BY THEIR
VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE AN IMMEDIATE BREACH OF
THE PEACE...."  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571-572. 

THERE HELD TO BE "INSULTING OR 'FIGHTING' WORDS" WERE CALLING ONE A
"GOD DAMNED RACKETEER" AND A "DAMNED FASCIST."  EQUALLY INCITING AND
MORE CLEARLY "FIGHTING WORDS," WHEN THROWN AT CATHOLICS AND JEWS WHO
ARE RIGHTFULLY ON THE STREETS OF NEW YORK, ARE STATEMENTS THAT "THE
POPE IS THE ANTI-CHRIST" AND THE JEWS ARE "CHRIST-KILLERS."  THESE
TERSE EPITHETS COME DOWN TO OUR GENERATION WEIGHTED WITH HATREDS
ACCUMULATED THROUGH CENTURIES OF BLOODSHED.  THEY ARE RECOGNIZED WORDS
OF ART IN THE PROFESSION OF DEFAMATION.  THEY ARE NOT THE KIND OF
INSULT THAT MEN BANDY AND LAUGH OFF WHEN THE SPIRITS ARE HIGH AND THE
FLAGONS ARE LOW.  THEY ARE NOT IN THAT CLASS OF EPITHETS WHOSE LITERAL
STING WILL BE DRAWN IF THE SPEAKER SMILES WHEN HE USES THEM.  THEY ARE
ALWAYS, AND IN EVERY CONTEXT, INSULTS WHICH DO NOT SPRING FROM REASON
AND CAN BE ANSWERED BY NONE.  THEIR HISTORICAL ASSOCIATIONS WITH
VIOLENCE ARE WELL UNDERSTOOD, BOTH BY THOSE WHO HURL AND THOSE WHO ARE
STRUCK BY THESE MISSILES.  JEWS, MANY OF WHOSE FAMILIES PERISHED IN
EXTERMINATION FURNACES OF DACHAU AND AUSCHWITZ, ARE MORE THAN TOLERANT
IF THEY PASS OFF LIGHTLY THE SUGGESTION THAT UNBELIEVERS IN CHRIST
SHOULD ALL HAVE BEEN BURNED.  OF COURSE, PEOPLE MIGHT PASS THIS SPEAKER
BY AS A MENTAL CASE, AND SO THEY MIGHT FILE OUT OF A THEATRE IN GOOD
ORDER AT THE CRY OF "FIRE."  BUT IN BOTH CASES THERE IS GENUINE
LIKELIHOOD THAT SOMEONE WILL GET HURT. 

THIS COURT'S PRIOR DECISIONS, AS WELL AS ITS DECISIONS TODAY, WILL BE
SEARCHED IN VAIN FOR CLEAR STANDARDS BY WHICH IT DOES, OR LOWER COURTS
SHOULD, DISTINGUISH LEGITIMATE SPEAKING FROM THAT ACKNOWLEDGED TO BE
OUTSIDE OF CONSTITUTIONAL PROTECTION.  ONE REASON FOR THIS ABSENCE IS
THAT THIS COURT HAS HAD LITTLE EXPERIENCE IN DECIDING CONTROVERSIES
OVER CITY CONTROL OF STREET MEETINGS.  AS LATE AS 1922, THIS COURT
DECLARED, "  ...  NEITHER THE FOURTEENTH AMENDMENT NOR ANY OTHER
PROVISION OF THE CONSTITUTION OF THE UNITED STATES IMPOSES UPON THE
STATES ANY RESTRICTIONS ABOUT 'FREEDOM OF SPEECH'  ...  "  PRUDENTIAL
INSURANCE CO. V. CHEEK, 259 U.S. 530, 543.  BUT WITH THE EXPANDED
AUTHORITY RECENTLY ASSUMED UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, WE MUST, UNLESS WE ARE TO REVIEW A MULTITUDE OF
POLICE-COURT CASES, DECLARE STANDARDS BY WHICH THEY MAY BE DECIDED
BELOW. 

WHAT EVIDENCES THAT A STREET SPEECH IS SO PROVOCATIVE, INSULTING OR
INCITING AS TO BE OUTSIDE OF CONSTITUTIONAL IMMUNITY FROM COMMUNITY
INTERFERENCE?  IS IT DETERMINED BY THE ACTUAL REACTION OF THE HEARERS? 
OR IS IT A JUDICIAL APPRAISAL OF THE INHERENT QUALITY OF THE LANGUAGE
USED?  OR BOTH? 

I UNDERSTAND, THOUGH DISAGREE WITH, THE MINORITY IN THE FEINER CASE,
WHO, SO FAR AS I CAN SEE, WOULD REQUIRE NO STANDARDS SINCE THEY
RECOGNIZE NO LIMITS AT ALL, CONSIDERING THAT SOME RIOTING IS THE PRICE
OF FREE SPEECH AND THAT THE CITY MUST ALLOW ALL SPEECH AND PAY THE
PRICE.  BUT EVERY JURISTIC OR PHILOSOPHIC AUTHORITY RECOGNIZED IN THIS
FIELD ADMITS THAT THERE ARE SOME SPEECHES ONE IS NOT FREE TO MAKE.  FN3
THE PROBLEM, ON WHICH THEY DISAGREE, IS HOW AND WHERE TO DRAW THE
LINE. 

IT IS PECULIAR THAT TODAY'S OPINION MAKES NO REFERENCE TO THE "CLEAR
AND PRESENT DANGER" TEST WHICH FOR YEARS HAS PLAYED SOME PART IN FREE
SPEECH CASES.  CF. AMERICAN COMMUNICATIONS ASSN. V. DOUDS, 339 U.S.
382, 393.  IF NEW YORK HAS BENEFIT OF THE RULE AS MR. JUSTICE HOLMES
ANNOUNCED IT, SCHENCK V. UNITED STATES, SUPRA, AT 52, IT WOULD MEAN
THAT IT COULD PUNISH OR PREVENT SPEECH IF "THE WORDS USED ARE USED IN
SUCH CIRCUMSTANCES AND ARE OF SUCH A NATURE AS TO CREATE A CLEAR AND
PRESENT DANGER THAT THEY WILL BRING ABOUT THE SUBSTANTIVE EVILS" THAT
THE CITY HAS A RIGHT TO PREVENT, AMONG WHICH I SHOULD SUPPOSE WE WOULD
LIST STREET FIGHTING OR RIOTS.  AS I HAVE POINTED OUT, THE PROOF IN
THIS CASE LEAVES NO DOUBT THAT KUNZ'S WORDS, IN THE ENVIRONMENT OF THE
STREETS, HAVE AND WILL RESULT IN THAT, UNLESS A POLICE ESCORT ATTENDS
TO AWE THE HEARERS INTO SUBMISSION. 

A HOSTILE RECEPTION OF HIS SUBJECT CERTAINLY DOES NOT ALONE DESTROY
ONE'S RIGHT TO SPEAK.  A TEMPERATE AND REASONED CRITICISM OF ROMAN
CATHOLICISM OR JUDAISM MIGHT, AND PROBABLY WOULD, CAUSE SOME RESENTMENT
AND PROTEST.  BUT IN A FREE SOCIETY ALL SECTS AND FACTIONS, AS THE
PRICE OF THEIR OWN FREEDOM TO PREACH THEIR VIEWS, MUST SUFFER THAT
FREEDOM IN OTHERS.  TOLERANCE OF UNWELCOME, UNORTHODOX IDEAS OR
INFORMATION IS A CONSTITUTIONALLY PROTECTED POLICY NOT TO BE DEFEATED
BY PERSONS WHO WOULD BREAK UP MEETINGS THEY DO NOT RELISH. 

BUT EMERGENCIES MAY ARISE ON STREETS WHICH WOULD BECOME CATASTROPHES
IF THERE WAS NOT IMMEDIATE POLICE ACTION.  THE CROWD WHICH SHOULD BE
TOLERANT MAY BE PREJUDICED AND ANGRY OR MALICIOUS.  IF THE SITUATION
THREATENS TO GET OUT OF HAND FOR THE FORCE PRESENT, I THINK THE POLICE
MAY REQUIRE THE SPEAKER, EVEN IF WITHIN HIS RIGHTS, TO YIELD HIS RIGHT
TEMPORARILY TO THE GREATER INTEREST OF PEACE.  OF COURSE, THE THREAT
MUST BE JUDGED IN GOOD FAITH TO BE REAL, IMMEDIATE AND SERIOUS.  BUT
SILENCING A SPEAKER BY AUTHORITIES AS A MEASURE OF MOB CONTROL IS LIKE
DYNAMITING A HOUSE TO STOP THE SPREAD OF A CONFLAGRATION.  IT MAY BE
JUSTIFIED BY THE OVERWHELMING COMMUNITY INTEREST THAT FLAMES NOT BE FED
AS COMPARED WITH THE LITTLE INTEREST TO BE SERVED BY CONTINUING TO FEED
THEM.  BUT THIS KIND OF DISORDER DOES NOT ABRIDGE THE RIGHT TO SPEAK
EXCEPT FOR THE EMERGENCY AND, SINCE THE SPEAKER WAS WITHIN HIS
CONSTITUTIONAL RIGHT TO SPEAK, IT COULD NOT BE GROUNDS FOR REVOKING OR
REFUSING HIM A PERMIT OR CONVICTING HIM OF ANY OFFENSE BECAUSE OF HIS
UTTERANCE.  IF HE RESISTED AN OFFICER'S REASONABLE DEMAND TO CEASE, HE
MIGHT INCUR PENALTIES. 

AND SO THE MATTER EVENTUALLY COMES DOWN TO THE QUESTION WHETHER THE
"WORDS USED ARE USED IN SUCH CIRCUMSTANCES AND ARE OF SUCH A NATURE"
THAT WE CAN SAY A REASONABLE MAN WOULD ANTICIPATE THE EVIL RESULT.  IN
THIS CASE THE COURT DOES NOT JUSTIFY, EXCUSE, OR DENY THE INCITING AND
PROVOCATIVE CHARACTER OF THE LANGUAGE, AND IT DOES NOT, AND ON THIS
RECORD COULD NOT, DENY THAT WHEN KUNZ SPEAKS HE POSES A "CLEAR AND
PRESENT" DANGER TO PEACE AND ORDER.  WHY, THEN, DOES NEW YORK HAVE TO
PUT UP WITH IT? 

IT IS WELL TO BE VIGILANT TO PROTECT THE RIGHT OF KUNZ TO SPEAK, BUT
IS HE TO BE SOLE JUDGE AS TO HOW FAR HE WILL CARRY VERBAL ATTACKS IN
THE PUBLIC STREETS?  IS OFFICIAL ACTION THE ONLY SOURCE OF INTERFERENCE
WITH RELIGIOUS FREEDOM?  DOES THE JEW, FOR EXAMPLE, HAVE THE BENEFIT OF
THESE FREEDOMS WHEN, LAWFULLY GOING ABOUT, HE AND HIS CHILDREN ARE
POINTED OUT AS "CHRIST-KILLERS" TO GATHERINGS ON PUBLIC PROPERTY BY A
RELIGIOUS SECTARIAN SPONSORED BY A POLICE BODYGUARD? 

WE SHOULD WEIGH THE VALUE OF INSULTING SPEECH AGAINST ITS
POTENTIALITY FOR HARM.  IS THE COURT, WHEN DECLARING KUNZ HAS THE RIGHT
HE ASSERTS, SERVING THE GREAT END FOR WHICH THE FIRST AMENDMENT
STANDS? 

THE PURPOSE OF CONSTITUTIONAL PROTECTION OF SPEECH IS TO FOSTER
PEACEFUL INTERCHANGE OF ALL MANNER OF THOUGHTS, INFORMATION AND IDEAS. 
ITS POLICY IS ROOTED IN FAITH IN THE FORCE OF REASON.  THIS COURT
WISELY HAS SAID, "RESORT TO EPITHETS OR PERSONAL ABUSE IS NOT IN ANY
PROPER SENSE COMMUNICATION OF INFORMATION OR OPINION SAFEGUARDED BY THE
CONSTITUTION."  CANTWELL V. CONNECTICUT, 310 U.S. 296, 309-310.  "IT
HAS BEEN WELL OBSERVED THAT SUCH UTTERANCES ARE NO ESSENTIAL PART OF
ANY EXPOSITION OF IDEAS, AND ARE OF SUCH SLIGHT SOCIAL VALUE AS A STEP
TO TRUTH THAT ANY BENEFIT THAT MAY BE DERIVED FROM THEM IS CLEARLY
OUTWEIGHED BY THE SOCIAL INTEREST IN ORDER AND MORALITY."  SO SAID WE
ALL IN CHAPLINSKY V. NEW HAMPSHIRE, SUPRA, AT 572.  IT WOULD BE
INTERESTING IF THE COURT WOULD EXPOSE ITS REASONS FOR THINKING THAT
KUNZ'S WORDS ARE OF MORE SOCIAL VALUE THAN THOSE OF CHAPLINSKY. 

      III. 

IT IS WORTHWHILE TO NOTE THAT THE JUDICIAL TECHNIQUE BY WHICH THIS
COURT STRIKES DOWN THE ORDINANCE IS VERY DIFFERENT FROM THAT EMPLOYED
BY THE NEW YORK COURT OF APPEALS, WHICH SUSTAINED IT.  THE CONTRARY
RESULTS APPEAR TO BE LARGELY DUE TO THIS DISSIMILARITY. 

THE COURT OF APPEALS DID NOT TREAT THE ORDINANCE AS EXISTING IN A
VACUUM BUT CONSIDERED ALL THE FACTS OF THE CONTROVERSY.  WHILE IT
CONSTRUED THE ORDINANCE "AS REQUIRING THE COMMISSIONER TO GIVE AN
ANNUAL PERMIT FOR STREET PREACHING, TO ANYONE WHO, LIKE DEFENDANT, IS A
MINISTER OF RELIGION," 300 N.Y. 273, 276, 90 N.E.2D 455, 456, IT HELD
ON THE FACTS THAT WHEN, AS HERE, THE APPLICANT "CLAIMS A CONSTITUTIONAL
RIGHT TO INCITE RIOTS, AND A CONSTITUTIONAL RIGHT TO THE SERVICES OF
POLICEMEN TO QUELL THOSE RIOTS," THEN A PERMIT NEED NOT BE ISSUED.  ID.
AT 278, 90 N.E.2D AT 457. 

THIS COURT, HOWEVER, REFUSES TO TAKE INTO CONSIDERATION KUNZ'S "PAST"
CONDUCT OR THAT HIS MEETINGS HAVE "CAUSED SOME DISORDER."  NOR DOES IT
DENY THAT DISORDERS WILL PROBABLY OCCUR AGAIN.  IT COMES CLOSE TO
RENDERING AN ADVISORY OPINION WHEN IT STRIKES DOWN THIS ORDINANCE
WITHOUT EVALUATING THE FACTUAL SITUATION WHICH HAS CAUSED IT TO COME
UNDER JUDICIAL SCRUTINY.  IF IT WERE NOT FOR THESE CHARACTERISTICS OF
THE SPEECHES BY KUNZ, THIS ORDINANCE WOULD NOT BE BEFORE US, YET IT IS
SAID THAT WE CAN HOLD IT INVALID WITHOUT TAKING INTO CONSIDERATION
EITHER WHAT HE HAS DONE OR WHAT HE ASSERTS A RIGHT TO DO. 

IT MAY HAPPEN THAT A STATUTE WILL DISCLOSE BY ITS VERY LANGUAGE THAT
IT IS IMPOSSIBLE OF CONSTRUCTION IN A MANNER CONSISTENT WITH FIRST
AMENDMENT RIGHTS.  SUCH IS THE CASE WHERE IT AIMS TO CONTROL MATTERS
PATENTLY NOT A PROPER SUBJECT OF THE POLICE POWER.  LOVELL V. GRIFFIN,
303 U.S. 444, 451.  CF. HAGUE V. C.I.O., 307 U.S. 496; THORNHILL V.
ALABAMA, 310 U.S. 88; SAIA V. NEW YORK, 334 U.S. 558.  USUALLY,
HOWEVER, THE ONLY PROPER APPROACH TAKES INTO CONSIDERATION BOTH THE
FACTS OF THE CASE AND THE CONSTRUCTION WHICH THE STATE HAS PLACED ON
THE CHALLENGED LAW.  NEAR V. MINNESOTA, 283 U.S. 697, 708; CANTWELL V.
CONNECTICUT, SUPRA, AT 303; KOVACS V. COOPER, 336 U.S. 77; TERMINIELLO
V. CHICAGO, 337 U.S. 1.  AND IN THE ABSENCE OF FACTS IN THE LIGHT OF
WHICH THE STATUTE MAY BE CONSTRUED, WE HAVE SAID THE PROPER PROCEDURE
IS NOT TO PASS ON WHETHER IT CONFLICTS WITH FIRST AMENDMENT RIGHTS. 
UNITED STATES V. PETRILLO, 332 U.S. 1.  THAT THE APPROACH WILL
DETERMINE THE RESULT IS INDICATED BY COMPARISON OF THE SAIA CASE, IN
WHICH AN ORDINANCE WAS HELD VOID ON ITS FACE, WITH THE KOVACS CASE, IN
WHICH A SIMILAR ORDINANCE, WHEN TESTED AS CONSTRUED AND APPLIED, WAS
HELD VALID.  THE VITAL DIFFERENCE, AS THIS CASE DEMONSTRATES, IS THAT
IT IS VERY EASY TO READ A STATUTE TO PERMIT SOME HYPOTHETICAL VIOLATION
OF CIVIL RIGHTS BUT DIFFICULT TO DRAFT ONE WHICH WILL NOT BE SUBJECT TO
THE SAME INFIRMITY. 

THIS COURT HAS NOT APPLIED, AND, I VENTURE TO PREDICT, WILL NOT
APPLY, TO FEDERAL STATUTES THE STANDARD THAT THEY ARE UNCONSTITUTIONAL
IF IT IS POSSIBLE THAT THEY MAY BE UNCONSTITUTIONALLY APPLIED.  WE
SHOULD BEGIN CONSIDERATION OF THIS CASE BY DECIDING WHETHER THE
OPPORTUNITY TO REPEAT HIS VITUPERATIVE STREET SPEECHES IS WITHIN KUNZ'S
CONSTITUTIONAL RIGHTS, AND HERE HE MUST WIN ON THE STRENGTH OF HIS OWN
RIGHT.  FN4

IV. 

THE QUESTION REMAINS WHETHER THE CONSTITUTION PROHIBITS A CITY FROM
CONTROL OF ITS STREETS BY A PERMIT SYSTEM WHICH TAKES INTO ACCOUNT
DANGERS TO PUBLIC PEACE AND ORDER.  I AM PERSUADED THAT IT DOES NOT DO
SO, PROVIDED, OF COURSE, THAT THE CITY DOES NOT SO DISCRIMINATE AS TO
DENY EQUAL PROTECTION OF THE LAW OR UNDERTAKE A CENSORSHIP OF
UTTERANCES THAT ARE NOT SO DEFAMATORY, INSULTING, INCITING, OR
PROVOCATIVE AS TO BE REASONABLY LIKELY TO CAUSE DISORDER AND VIOLENCE. 

THE COURT DOES NOT HOLD THAT NEW YORK HAS ABUSED THE PERMIT SYSTEM BY
DISCRIMINATION OR ACTUAL CENSORSHIP, NOR DOES IT DENY THE ABUSES ON
KUNZ'S PART.  BUT NEITHER, SAYS THE COURT, MATTERS, HOLDING THAT ANY
PRIOR RESTRAINT IS BAD, REGARDLESS OF HOW FAIRLY ADMINISTERED OR WHAT
ABUSES IT SEEKS TO PREVENT.    IT STRIKES RATHER BLINDLY AT PERMIT
SYSTEMS WHICH INDIRECTLY MAY AFFECT FIRST AMENDMENT FREEDOMS.  CITIES
THROUGHOUT THE COUNTRY HAVE ADOPTED PERMIT REQUIREMENTS TO CONTROL
PRIVATE ACTIVITIES ON PUBLIC STREETS AND FOR OTHER PURPOSES.  FN5  THE
UNIVERSALITY OF THIS TYPE OF REGULATION DEMONSTRATES A NEED AND
INDICATES WIDESPREAD OPINION IN THE PROFESSION THAT IT IS NOT
NECESSARILY INCOMPATIBLE WITH OUR CONSTITUTIONAL FREEDOMS.  IS
EVERYBODY OUT OF STEP BUT THIS COURT? 

UNTIL RECENTLY THIS CUSTOM OF MUNICIPALITIES WAS REGARDED BY THIS
COURT AS CONSISTENT WITH THE CONSTITUTION.  IT APPROVED THIS IDENTICAL
ORDINANCE IN SMITH V. NEW YORK, 292 U.S. 606.  FN6  THIS DECISION IS
NOW OVERRULED.  ALTHOUGH THE ORDINANCE WAS THEN ATTACKED AS A DENIAL OF
EQUAL PROTECTION OF THE LAW FOR FAILURE TO PRESCRIBE A REASONABLE
CLASSIFICATION, I CANNOT ATTRIBUTE TO THAT DECISION AS NARROW AN
INTERPRETATION AS THE COURT.  WOULD THIS COURT SUSTAIN AN ORDINANCE AS
PROVIDING A REASONABLE CLASSIFICATION IF THE PURPOSE OF THE
CLASSIFICATION WAS VOID ON ITS FACE? 

IN THE CHAPLINSKY CASE, PREVENTION AS WELL AS PUNISHMENT OF "LIMITED
CLASSES OF SPEECH  ... HAVE NEVER BEEN THOUGHT TO RAISE ANY
CONSTITUTIONAL PROBLEM."  MR. JUSTICE HOLMES POINTED OUT IN THE SCHENCK
CASE THAT THE CONSTITUTION WOULD NOT PROTECT ONE FROM AN INJUNCTION
AGAINST UTTERING WORDS THAT LEAD TO RIOT.  IN COX V. NEW HAMPSHIRE, 312
U.S. 569, 577-578, CHIEF JUSTICE HUGHES, FOR A UNANIMOUS COURT,
DISTINGUISHED THE REQUIREMENT OF A LICENSE FOR A PARADE OR PROCESSION
FROM OTHER CASES NOW RELIED ON BY THIS COURT.  HE FOUND REQUIREMENT OF
A PERMIT THERE CONSTITUTIONAL AND OBSERVED THAT SUCH AUTHORITY "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."  ID., AT 574.  THE CONCEPT OF CIVIL LIBERTY WITHOUT
ORDER IS THE CONTRIBUTION OF LATER-DAY JURISTS. 

THE COURT, AS AUTHORITY FOR STRIPPING NEW YORK CITY OF CONTROL OF
STREET MEETINGS, RESURRECTS SAIA V. NEW YORK, SUPRA, WHICH I, LIKE SOME
WHO NOW RELY ON IT, HAD SUPPOSED WAS GIVEN DECENT BURIAL BY KOVACS V.
COOPER, SUPRA.  MUST NEW YORK, IF IT IS TO AVOID CHAOS IN ITS STREETS,
RESORT TO THE SWEEPING PROHIBITIONS SANCTIONED IN KOVACS, INSTEAD OF
THE MILDER RESTRAINTS OF THIS PERMIT SYSTEM?  COMPELLING A CHOICE
BETWEEN ALLOWING ALL MEETINGS OR NO MEETINGS IS A DUBIOUS SERVICE TO
CIVIL LIBERTIES. 

OF COURSE, AS TO THE PRESS, THERE ARE THE BEST OF REASONS AGAINST ANY
LICENSING OR PRIOR RESTRAINT.  DECISIONS SUCH AS NEAR V. MINNESOTA,
SUPRA, HOLD ANY LICENSING OR PRIOR RESTRAINT OF THE PRESS
UNCONSTITUTIONAL, AND I HEARTILY AGREE.  BUT PRECEDENTS FROM THAT FIELD
CANNOT REASONABLY BE TRANSPOSED TO THE STREET-MEETING FIELD.  THE
IMPACT OF PUBLISHING ON PUBLIC ORDER HAS NO SIMILARITY WITH THAT OF A
STREET MEETING.  PUBLISHING DOES NOT MAKE PRIVATE USE OF PUBLIC
PROPERTY.  IT REACHES ONLY THOSE WHO CHOOSE TO READ, AND, IN THAT WAY,
IS ANALOGOUS TO A MEETING HELD IN A HALL WHERE THOSE WHO COME DO SO BY
CHOICE.  WRITTEN WORDS ARE LESS APT TO INCITE OR PROVOKE TO MASS ACTION
THAN SPOKEN WORDS, SPEECH BEING THE PRIMITIVE AND DIRECT COMMUNICATION
WITH THE EMOTIONS.  FEW ARE THE RIOTS CAUSED BY PUBLICATION ALONE, FEW
ARE THE MOBS THAT HAVE NOT HAD THEIR IMMEDIATE ORIGIN IN HARANGUE.  THE
VULNERABILITY OF VARIOUS FORMS OF COMMUNICATION TO COMMUNITY CONTROL
MUST BE PROPORTIONED TO THEIR IMPACT UPON OTHER COMMUNITY INTERESTS. 

IT IS SUGGESTED THAT A PERMIT FOR A STREET MEETING COULD BE REQUIRED
IF THE ORDINANCE WOULD PRESCRIBE PRECISE STANDARDS FOR ITS GRANT OR
DENIAL.  THIS DEFECT, IF SUCH IT BE, WAS JUST AS APPARENT WHEN, IN THE
SMITH CASE, THIS COURT UPHELD THE ORDINANCE AS IT IS TODAY.  THE CHANGE
MUST BE FOUND IN THE COURT, NOT IN THE ORDINANCE. 

AND WHAT, IN TERMS OF ITS PHILOSOPHY OF DECISION, IS THIS CHANGE?  IT
IS TO REQUIRE MORE SEVERE AND EXACTING STANDARDS OF STATE AND LOCAL
STATUTES THAN OF FEDERAL STATUTES.  AS THIS CASE EXEMPLIFIES, LOCAL
ACTS ARE STRUCK DOWN, NOT BECAUSE IN PRACTICAL APPLICATION THEY HAVE
ACTUALLY INVADED ANYONE'S PROTECTED FREEDOMS, BUT BECAUSE THEY DO NOT
SET UP STANDARDS WHICH WOULD MAKE SUCH INVASION IMPOSSIBLE.  HOWEVER,
WITH FEDERAL STATUTES, WE SAY THEY MUST STAND UNLESS THEY REQUIRE, OR
IN APPLICATION ARE SHOWN ACTUALLY TO HAVE RESULTED IN, AN INVASION OF A
PROTECTED FREEDOM.  FN7 

OF COURSE, STANDARDS FOR ADMINISTRATIVE ACTION ARE ALWAYS DESIRABLE,
AND THE MORE EXACT THE BETTER.  BUT I DO NOT SEE HOW THIS COURT CAN
CONDEMN MUNICIPAL ORDINANCES FOR NOT SETTING FORTH COMPREHENSIVE FIRST
AMENDMENT STANDARDS.  THIS COURT NEVER HAS ANNOUNCED WHAT THOSE
STANDARDS MUST BE, IT DOES NOT NOW SAY WHAT THEY ARE, AND IT IS NOT
CLEAR THAT ANY MAJORITY COULD AGREE ON THEM.  IN NO FIELD ARE THERE
MORE NUMEROUS INDIVIDUAL OPINIONS AMONG THE JUSTICES.  THE COURT AS AN
INSTITUTION NOT INFREQUENTLY DISAGREES WITH ITS FORMER SELF OR RELIES
ON DISTINCTIONS THAT ARE NOT VERY SUBSTANTIAL.  COMPARE JONES V.
OPELIKA OF 1942, 316 U.S. 584, WITH JONES V. OPELIKA OF 1943, 319 U.S.
103; MINERSVILLE SCHOOL DISTRICT V. GOBITIS OF 1940, 310 U.S. 586, WITH
BOARD OF EDUCATION V. BARNETTE OF 1943, 319 U.S. 624; SAIA V. NEW YORK
OF 1948, SUPRA, WITH KOVACS V. COOPER OF 1949, SUPRA.  IT SEEMS
HYPERCRITICAL TO STRIKE DOWN LOCAL LAWS ON THEIR FACES FOR WANT OF
STANDARDS WHEN WE HAVE NO STANDARDS.  FN8  AND I DO NOT FIND IT
REQUIRED BY EXISTING AUTHORITY.  I THINK THAT WHERE SPEECH IS OUTSIDE
OF CONSTITUTIONAL IMMUNITY THE LOCAL COMMUNITY OR THE STATE IS LEFT A
LARGE MEASURE OF DISCRETION AS TO THE MEANS FOR DEALING WITH IT.

                                  V. 

IF THE COURT IS DECIDING THAT THE PERMIT SYSTEM FOR STREET MEETINGS
IS SO UNREASONABLE AS TO DENY DUE PROCESS OF LAW, IT WOULD SEEM
APPROPRIATE TO POINT OUT RESPECTS IN WHICH IT IS UNREASONABLE.  THIS I
AM UNABLE TO LEARN, FROM THIS OR ANY FORMER DECISION.  THE COURT HOLDS,
HOWEVER, THAT KUNZ MUST NOT BE REQUIRED TO GET PERMISSION, THE CITY
MUST SIT BY UNTIL SOME INCIDENT, PERHAPS A SANGUINARY ONE, OCCURS AND
THEN THERE ARE UNSPECIFIED "APPROPRIATE PUBLIC REMEDIES."  WE MAY
ASSUME REFERENCE IS TO THE PROCEDURE OF THE FEINER CASE WHICH, WITH ONE
THIRD OF THE COURT DISSENTING, IS UPHELD.  FN9  THIS INVITES COMPARISON
OF THE MERITS OF THE TWO METHODS BOTH AS TO IMPACT ON CIVIL LIBERTIES
AND AS TO ACHIEVING THE ENDS OF PUBLIC ORDER. 

CITY OFFICIALS STOPPED THE MEETINGS OF BOTH FEINER AND KUNZ.  THE
PROCESS BY WHICH FEINER WAS STOPPED WAS THE ORDER OF PATROLMEN, PUT
INTO IMMEDIATE EFFECT WITHOUT HEARING.  FEINER MAY HAVE BELIEVED THERE
WOULD BE NO INTERFERENCE BUT KUNZ WAS DULY WARNED BY REFUSAL OF A
PERMIT.  HE WAS ADVISED OF CHARGES, GIVEN A HEARING, CONFRONTED BY
WITNESSES, AND AFFORDED A CHANCE TO DENY THE CHARGES OR TO CONFESS THEM
AND OFFER TO AMEND HIS WAYS.  THE DECISION OF REVOCATION WAS MADE BY A
DETACHED AND RESPONSIBLE ADMINISTRATIVE OFFICIAL AND KUNZ COULD HAVE
HAD THE DECISION REVIEWED IN COURT. 

THE PURPOSE OF THE COURT IS TO ENABLE THOSE WHO FEEL A CALL TO
PROSELYTIZE TO DO SO BY STREET MEETINGS.  THE MEANS IS TO SET UP A
PRIVATE RIGHT TO SPEAK IN THE CITY STREETS WITHOUT ASKING PERMISSION. 
FN10  OF COURSE, IF KUNZ MAY SPEAK WITHOUT A PERMIT, SO MAY ANYONE
ELSE.  IF HE MAY SPEAK WHENEVER AND WHEREVER HE MAY ELECT, I KNOW OF NO
WAY IN WHICH THE CITY CAN SILENCE THE HECKLER, THE INTERRUPTER, THE
DISSENTER, THE RIVALS WITH MISSIONARY FERVOR, WHO HAVE AN EQUAL RIGHT
AT THE SAME TIME AND PLACE TO LIFT THEIR VOICES.  AND, OF COURSE, IF
THE CITY MAY NOT STOP KUNZ FROM UTTERING INSULTING AND "FIGHTING"
WORDS, NEITHER CAN IT STOP HIS ADVERSARIES, AND THE DISCUSSION
DEGENERATES TO A NAME-CALLING CONTEST WITHOUT SOCIAL VALUE AND, HUMAN
NATURE BEING WHAT IT IS, TO A FIGHT OR PERHAPS A RIOT.  THE END OF THE
COURT'S METHOD IS CHAOS. 

BUT IF THE COURT CONCEIVES, AS FEINER INDICATES, THAT UPON UTTERING
INSULTING, PROVOCATIVE OR INCITING WORDS THE POLICEMAN ON THE BEAT MAY
STOP THE MEETING, THEN ITS ASSURANCE OF FREE SPEECH IN THIS DECISION IS
"A PROMISE TO THE EAR TO BE BROKEN TO THE HOPE," IF THE PATROLMAN ON
THE BEAT HAPPENS TO HAVE PREJUDICES OF HIS OWN. 

TURNING THEN TO THE PERMIT SYSTEM AS APPLIED BY THE COURT OF APPEALS,
WHOSE CONSTRUCTION BINDS US, WE FIND THAT ISSUANCE THE FIRST TIME IS
REQUIRED.  DENIAL IS WARRANTED ONLY IN SUCH UNUSUAL CASES AS WHERE AN
APPLICANT HAS HAD A PERMIT WHICH HAS BEEN REVOKED FOR CAUSE AND HE
ASSERTS THE RIGHT TO CONTINUE THE CONDUCT WHICH WAS CAUSE FOR
REVOCATION.  IF ANYTHING LESS THAN A REASONABLE CERTAINTY OF DISORDER
WAS SHOWN, DENIAL OF A PERMIT WOULD BE IMPROPER.  THE PROCEDURE BY
WHICH THAT DECISION IS REACHED COMMENDS ITSELF TO THE ORDERLY MIND -
COMPLAINTS ARE FILED, WITNESSES ARE HEARD, OPPORTUNITY TO CROSS-EXAMINE
IS GIVEN, AND DECISION IS REACHED BY WHAT WE MUST ASSUME TO BE AN
IMPARTIAL AND REASONABLE ADMINISTRATIVE OFFICER, AND, IF HE DENIES THE
PERMIT, THE APPLICANT MAY CARRY HIS CAUSE TO THE COURTS.  HE MAY THUS
HAVE A CIVIL TEST OF HIS RIGHTS WITHOUT THE PERSONAL HUMILIATION OF
BEING ARRESTED AS PRESENTING A MENACE TO PUBLIC ORDER.  IT SEEMS TO ME
THAT THIS PROCEDURE BETTER PROTECTS FREEDOM OF SPEECH THAN TO LET
EVERYONE SPEAK WITHOUT LEAVE, BUT SUBJECT TO SURVEILLANCE AND TO BEING
ORDERED TO STOP IN THE DISCRETION OF THE POLICE. 

IT IS OBVIOUS THAT A PERMIT IS A SOURCE OF SECURITY AND PROTECTION
FOR THE CIVIL LIBERTIES OF THE GREAT NUMBER WHO ARE ENTITLED TO RECEIVE
THEM.  IT INFORMS THE POLICE OF THE TIME AND PLACE ONE INTENDS TO
SPEAK, WHICH ALLOWS NECESSARY STEPS TO INSURE HIM A PLACE TO SPEAK
WHERE OVERZEALOUS POLICE OFFICERS WILL NOT ORDER EVERYONE WHO STOPS TO
LISTEN TO MOVE ON, AND TO HAVE OFFICERS PRESENT TO INSURE AN ORDERLY
MEETING.  MOREOVER, DISORDER IS LESS LIKELY, FOR THE SPEAKER KNOWS THAT
IF HE PROVOKES DISORDER HIS PERMIT MAY BE REVOKED, AND THE OBJECTOR MAY
BE TOLD THAT HE HAS A REMEDY BY FILING A COMPLAINT AND DOES NOT NEED TO
TAKE THE LAW IN HIS OWN HANDS.  KUNZ WAS NOT ARRESTED IN 1946, WHEN HIS
SPEECHES CAUSED SERIOUS OBJECTIONS, NOR WAS HE SET UPON BY THE CROWD. 
INSTEAD, THEY DID THE ORDERLY THING AND MADE COMPLAINTS WHICH RESULTED
IN THE REVOCATION OF HIS PERMIT.  THIS IS THE METHOD THAT THE COURT
FRUSTRATES TODAY. 

OF COURSE, EMERGENCIES MAY ARISE EITHER WITH OR WITHOUT THE PERMIT
SYSTEM.  A SPEAKER WITH A PERMIT MAY GO BEYOND BOUNDS AND INCITE
VIOLENCE, OR A MOB MAY UNDERTAKE TO BREAK UP AN AUTHORIZED AND PROPERLY
CONDUCTED MEETING.  IN EITHER CASE, THE POLICEMAN ON THE SPOT MUST MAKE
THE JUDGMENT AS TO WHAT MEASURES WILL MOST LIKELY AVOID VIOLENT
DISORDERS.  BUT THESE EMERGENCIES SEEM LESS LIKELY TO OCCUR WITH THE
PERMIT SYSTEM THAN IF EVERY MAN AND HIS ADVERSARY TAKE THE LAW IN THEIR
OWN HANDS. 

THE LAW OF NEW YORK DOES NOT SEGREGATE, ACCORDING TO THEIR DIVERSE
NATIONALITIES, RACES, RELIGIONS, OR POLITICAL ASSOCIATIONS, THE VAST
HORDES OF PEOPLE LIVING IN ITS NARROW CONFINES.  EVERY INDIVIDUAL IN
THIS FRIGHTENING AGGREGATION IS LEGALLY FREE TO LIVE, TO LABOR, TO
TRAVEL, WHEN AND WHERE HE CHOOSES.  IN STREETS AND PUBLIC PLACES, ALL
RACES AND NATIONALITIES AND ALL SORTS AND CONDITIONS OF MEN WALK,
LINGER AND MINGLE.  IS IT NOT REASONABLE THAT THE CITY PROTECT THE
DIGNITY OF THESE PERSONS AGAINST FANATICS WHO TAKE POSSESSION OF ITS
STREETS TO HURL INTO ITS CROWDS DEFAMATORY EPITHETS THAT HURT LIKE
ROCKS? 

IF ANY TWO SUBJECTS ARE INTRINSICALLY INCENDIARY AND DIVISIVE, THEY
ARE RACE AND RELIGION.  RACIAL FEARS AND HATREDS HAVE BEEN AT THE ROOT
OF THE MOST TERRIBLE RIOTS THAT HAVE DISGRACED AMERICAN CIVILIZATION. 
THEY ARE UGLY POSSIBILITIES THAT OVERHANG EVERY GREAT AMERICAN CITY. 
THE "CONSECRATED HATREDS OF SECT" ACCOUNT FOR MORE THAN A FEW OF THE
WORLD'S BLOODY DISORDERS.  THESE ARE THE EXPLOSIVES WHICH THE COURT
SAYS KUNZ MAY PLAY WITH IN THE PUBLIC STREETS, AND THE COMMUNITY MUST
NOT ONLY TOLERATE BUT AID HIM.  I FIND NO SUCH DOCTRINE IN THE
CONSTITUTION. 

IN THIS CASE THERE IS NO EVIDENCE OF A PURPOSE TO SUPPRESS SPEECH,
EXCEPT TO KEEP IT IN BOUNDS THAT WILL NOT UPSET GOOD ORDER.  IF THERE
ARE ABUSES OF CENSORSHIP OR DISCRIMINATION IN ADMINISTERING THE
ORDINANCE, AS WELL THERE MAY BE, THEY ARE NOT PROVED IN THIS CASE. 
THIS COURT SHOULD BE PARTICULARLY SURE OF ITS GROUND BEFORE IT STRIKES
DOWN, IN A TIME LIKE THIS, THE GOING, PRACTICAL SYSTEM BY WHICH NEW
YORK HAS SOUGHT TO CONTROL ITS STREET-MEETING PROBLEM. 

ADDRESSING HIMSELF TO THE SUBJECT, "AUTHORITY AND THE INDIVIDUAL,"
ONE OF THE KEENEST PHILOSOPHERS OF OUR TIME OBSERVES:  "THE PROBLEM,
LIKE ALL THOSE WITH WHICH WE ARE CONCERNED, IS ONE OF BALANCE; TOO
LITTLE LIBERTY BRINGS STAGNATION, AND TOO MUCH BRINGS CHAOS."  FN11
PERHAPS IT IS THE FEVER OF OUR TIMES THAT INCLINES THE COURT TODAY TO
FAVOR CHAOS.  MY HOPE IS THAT FEW WILL TAKE ADVANTAGE OF THE LICENSE
GRANTED BY TODAY'S DECISION.  BUT LIFE TEACHES ONE TO DISTINGUISH
BETWEEN HOPE AND FAITH. 

FN1  KUNZ IS WITHIN THE CLASSIFICATIONS OF PERSONS TO WHOM SUCH
PERMITS MAY ISSUE.  HENCE, WE HAVE HERE NO CHALLENGE BASED ON ITS
EXCLUSIONS.  IF AN EXCLUDED PERSON MADE APPROPRIATE CHALLENGE ON EQUAL
PROTECTION GROUNDS, I SHOULD VERY MUCH DOUBT IF THE ORDINANCE COULD BE
SUSTAINED.  SEE, HOWEVER, RAILWAY EXPRESS AGENCY V. NEW YORK, 336 U.S.
106, WHICH SUSTAINS THE POWER OF NEW YORK CITY TO CLASSIFY PRINTED
COMMUNICATIONS IT WILL PERMIT ON ITS STREETS ON A BASIS THAT SEEMS MORE
REMOTE FROM ANY TRAFFIC EFFECT THAN A STREET MEETING. 

FN2  "Q.  IT IS YOUR RELIGIOUS CONVICTION THAT THIS IS THE WAY YOU
ARE TO PRACTICE YOUR RELIGION?    "A.  YES.  I FEEL THIS WAY, THAT THE
HOLY BIBLE IS THE WORD OF GOD.  AND WHETHER THE HOLY BIBLE, THE WORD OF
GOD, RIDICULES OR DENOUNCES ANY MAN'S RELIGION, I AM GOING TO PREACH
IT.  I FEEL I HAVE A PERFECT RIGHT." 

IF THERE WERE OTHERWISE ANY DOUBT THAT KUNZ PROPOSES TO RESUME THESE
ATTACKS, IT SHOULD BE DISPELLED BY THE LETTERS HE HAS ADDRESSED TO
MEMBERS OF THIS COURT ASSERTING HIS RIGHT TO DO SO AND ASSAILING, ON
RELIGIOUS GROUNDS, JUDGES WHO DECIDED HIS CASE BELOW. 

FN3  ONE OF THESE LATTER IS PROF. MEIKLEJOHN, WHO WOULD GO SO FAR AS
TO DISCARD THE "CLEAR AND PRESENT DANGER" FORMULA, AT LEAST AS A
RESTRICTION ON POLITICAL DISCUSSION, WHICH HE SAYS "  ... STANDS ON THE
RECORD OF THE COURT AS A PECULIARLY INEPT AND UNSUCCESSFUL ATTEMPT TO
FORMULATE AN EXCEPTION TO THE PRINCIPLE OF THE FREEDOM OF SPEECH." 
MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT, P. 50. 
BUT EVEN HE DOES NOT SUPPORT UNLIMITED SPEECH.  HE SAYS, "  ...  NO ONE
CAN DOUBT THAT, IN ANY WELL-GOVERNED SOCIETY, THE LEGISLATURE HAS BOTH
THE RIGHT AND THE DUTY TO PROHIBIT CERTAIN FORMS OF SPEECH.  LIBELLOUS
ASSERTIONS MAY BE, AND MUST BE, FORBIDDEN AND PUNISHED.  SO TOO MUST
SLANDER.  WORDS WHICH INCITE MEN TO CRIME ARE THEMSELVES CRIMINAL AND
MUST BE DEALT WITH AS SUCH.  SEDITION AND TREASON MAY BE EXPRESSED BY
SPEECH OR WRITING.  AND, IN THOSE CASES, DECISIVE REPRESSIVE ACTION BY
THE GOVERNMENT IS IMPERATIVE FOR THE SAKE OF THE GENERAL WELFARE.  ALL
THESE NECESSITIES THAT SPEECH BE LIMITED ARE RECOGNIZED AND PROVIDED
FOR UNDER THE CONSTITUTION.  ..."  ID., AT 18. 

FN4  BRANDEIS, J., CONCURRING, IN ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 347. 

FN5  NEW YORK, FOR EXAMPLE, HAS FOUND A PERMIT SYSTEM THE PRACTICAL
MEANS OF CONTROLLING MEETINGS IN ITS PARKS.  THIS COURT, AS PRESENTLY
CONSTITUTED, ONLY LAST TERM DISMISSED AN ATTACK ON THE PARK PERMIT
SYSTEM "FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION," JUSTICES BLACK AND
DOUGLAS DISSENTING.  HASS V. NEW YORK, 338 U.S. 803.  NEW YORK ALSO HAS
USED THE REQUIREMENT OF A PERMIT FOR ASSEMBLAGES WHICH MASK THEIR FACES
TO SUPPRESS THE KU KLUX KLAN, WITHOUT STOPPING HARMLESS MASQUERADE
BALLS AND THE LIKE.  PENAL LAW SEC. 710.  THE PERMIT SYSTEM IS USED IN
MANY OTHER SITUATIONS WHERE CONCEIVABLE CIVIL LIBERTIES ARE INVOLVED. 

FN6  THE ISSUE WAS DRAWN FOR THEM WITH CLARITY BY CHIEF JUDGE POUND
IN PEOPLE V. SMITH, 263 N.Y. 255, 188 N.E. 745.  THE COURT OF APPEALS
UNANIMOUSLY SAID:  "'IT IS TOO WELL SETTLED BY JUDICIAL DECISIONS IN
BOTH THE STATE AND FEDERAL COURTS THAT A MUNICIPALITY MAY PASS AN
ORDINANCE MAKING IT UNLAWFUL TO HOLD PUBLIC MEETINGS UPON THE PUBLIC
STREETS WITHOUT A PERMIT THEREFOR TO REQUIRE DISCUSSION.  ...  '  THIS
ORDINANCE IS NOT AIMED AGAINST FREE SPEECH.  IT IS DIRECTED TOWARDS THE
MANNER IN WHICH THE STREET MAY BE USED.  ...  THE PASSION, RANCOR AND
MALICE SOMETIMES AROUSED BY SECTARIAN RELIGIOUS CONTROVERSIES AND
ATTACKS ON RELIGION SEEM TO JUSTIFY ESPECIAL SUPERVISION OVER THOSE WHO
WOULD CONDUCT SUCH MEETINGS ON THE PUBLIC STREETS."  263 N.Y. AT 257,
188 N.E. AT 745.  AND THIS COURT HELD THAT HOLDING PRESENTED NO
CONSTITUTIONAL QUESTION OF SUBSTANCE. 

FN7  UNITED STATES V. PETRILLO, SUPRA. 

FN8  IT SEEMS FAIR TO CONTRAST THE PRECISION WHICH THE COURT IMPOSES
ON MUNICIPALITIES WITH THE STANDARDS SET FORTH IN THE RECENT ACT
"RELATING TO THE POLICING OF THE BUILDING AND GROUNDS OF THE SUPREME
COURT OF THE UNITED STATES."  63 STAT. 616.  THAT MAKES IT UNLAWFUL TO
"MAKE ANY HARANGUE OR ORATION, OR UTTER LOUD, THREATENING, OR ABUSIVE
LANGUAGE IN THE SUPREME COURT BUILDING OR GROUNDS."  SEC. 5.  IT
FORBIDS DISPLAY OF ANY "FLAG, BANNER, OR DEVICE DESIGNED OR ADAPTED TO
BRING INTO PUBLIC NOTICE ANY PARTY, ORGANIZATION, OR MOVEMENT."  SEC.
6.  COMPARE WITH THORNHILL V. ALABAMA, 310 U.S. 88.  MOREOVER, IT
AUTHORIZES THE MARSHAL TO "PRESCRIBE SUCH REGULATIONS, APPROVED BY THE
CHIEF JUSTICE OF THE UNITED STATES, AS MAY BE DEEMED NECESSARY FOR THE
ADEQUATE PROTECTION OF THE SUPREME COURT BUILDING AND GROUNDS AND OF
PERSONS AND PROPERTY THEREIN, AND FOR THE MAINTENANCE OF SUITABLE ORDER
AND DECORUM WITHIN THE SUPREME COURT BUILDING AND GROUNDS."  SEC. 7. 
VIOLATION OF THESE PROVISIONS OR REGULATIONS IS AN OFFENSE PUNISHABLE
BY FINE AND IMPRISONMENT. 

AUTHORIZED CEREMONIES" WITHIN THE BUILDING OR GROUNDS, THE MARSHAL "MAY
SUSPEND FOR SUCH OCCASIONS SO MUCH OF THE PROHIBITIONS," INCLUDING
THOSE ABOVE, "AS MAY BE NECESSARY FOR THE OCCASION, BUT ONLY IF
RESPONSIBLE OFFICERS SHALL HAVE BEEN APPOINTED, AND ARRANGEMENTS
DETERMINED WHICH ARE ADEQUATE, IN THE JUDGMENT OF THE MARSHAL, FOR THE
MAINTENANCE OF SUITABLE ORDER AND DECORUM IN THE PROCEEDINGS, AND FOR
THE PROTECTION OF THE SUPREME COURT BUILDING AND GROUNDS AND OF PERSONS
AND PROPERTY THEREIN." 

HERE IS EXALTED ARTISTRY IN DECLARING CRIME WITHOUT DEFINITIVE AND
AUTHORIZING PERMITS WITHOUT STANDARDS FOR USE OF PUBLIC PROPERTY FOR
SPEAKING.  OF COURSE, THE STATUTE WOULD NOT BE REPORTED BY THE
JUDICIARY COMMITTEES WITHOUT AT LEAST INFORMAL APPROVAL OF THE
JUSTICES.  THE CONTRAST BETWEEN THE STANDARDS SET UP FOR CITIES AND
THOSE FOR OURSELVES SUGGESTS THAT OUR THEORIZING MAY BE IMPOSING
BURDENS UPON MUNICIPAL AUTHORITIES WHICH ARE IMPOSSIBLE OR AT LEAST
IMPRACTICAL TO COMPLY WITH. 

FN9  I JOIN IN FEINER V. NEW YORK, POST, P. 315.  WHEN IN A COLORED
NEIGHBORHOOD FEINER URGED THE COLORED PEOPLE TO RISE UP IN ARMS AND
FIGHT, HE WAS USING WORDS WHICH MAY HAVE BEEN "RHETORICAL," BUT IT WAS
THE RHETORIC OF VIOLENCE.  OF COURSE, WE CANNOT TELL, FROM A COLD
RECORD, WHETHER THE ACTION TAKEN WAS THE WISEST WAY OF DEALING WITH THE
SITUATION.  BUT SOME LATITUDE FOR HONEST JUDGMENT MUST BE LEFT TO THE
LOCALITY.  IT IS A STARTLING PROPOSITION TO ME THAT SERIOUS PUBLIC
UTTERANCE WHICH ADVISES, ENCOURAGES, OR INCITES TO A CRIME MAY NOT BE
MADE A CRIME BECAUSE WITHIN CONSTITUTIONAL PROTECTION.  AS MR. JUSTICE
HOLMES FOR A UNANIMOUS COURT IN FROHWERK V. UNITED STATES, 249 U.S.
204, 206, SAID: 

"  ...  THE FIRST AMENDMENT WHILE PROHIBITING LEGISLATION AGAINST
FREE SPEECH AS SUCH CANNOT HAVE BEEN, AND OBVIOUSLY WAS NOT, INTENDED
TO GIVE IMMUNITY FOR EVERY POSSIBLE USE OF LANGUAGE.  ROBERTSON V.
BALDWIN, 165 U.S. 275, 281.  WE VENTURE TO BELIEVE THAT NEITHER
HAMILTON NOR MADISON, NOR ANY OTHER COMPETENT PERSON THEN OR LATER,
EVER SUPPOSED THAT TO MAKE CRIMINAL THE COUNSELLING OF A MURDER WITHIN
THE JURISDICTION OF CONGRESS WOULD BE AN UNCONSTITUTIONAL INTERFERENCE
WITH FREE SPEECH." 

HOWEVER, THE CASE OF NIEMOTKO V. MARYLAND, ANTE, P. 268, ILLUSTRATES
THE DANGER OF ABUSE OF THE PERMIT SYSTEM WHICH THE COURT SHOULD BE
ALERT TO PREVENT.  THERE IS NO EVIDENCE THAT THOSE APPLICANTS WERE,
EVER HAD BEEN, OR THREATENED TO BE, DISORDERLY OR ABUSIVE IN SPEECH OR
MANNER, OR THAT THEIR SPEAKING WOULD BE LIKELY TO INCITE OR PROVOKE ANY
DISORDER.  THE DENIAL OF PERMISSION FOR THE MEETING WAS CHARGED AND
APPEARS TO HAVE BEEN DUE TO APPLICANTS' RELIGIOUS BELIEF THAT THEY
SHOULD NOT SALUTE ANY FLAG, WHICH THEY MAY NOT BE COMPELLED TO DO, AND
THEIR CONSCIENTIOUS OBJECTIONS TO BEARING ARMS IN WAR, WHICH CONGRESS
HAS ACCEPTED AS A VALID EXCUSE FROM COMBAT DUTY.  IN THE COURTS OF
MARYLAND, THIS DENIAL, SO BASED, WAS CONCLUSIVE AGAINST THE RIGHT TO
SPEAK.  THIS WAS USE OF THE PERMIT SYSTEM FOR CENSORSHIP, AND THE
CONVICTIONS CANNOT STAND. 

FN10  DO WE SO QUICKLY FORGET THAT ONE OF THE CHIEF REASONS FOR
PROHIBITING USE OF "RELEASED TIME" OF SCHOOL STUDENTS FOR RELIGIOUS
INSTRUCTION WAS THAT THE CONSTITUTION WILL NOT SUFFER TAX-SUPPORTED
PROPERTY TO BE USED TO PROPAGATE RELIGION?  ILLINOIS EX REL. MCCOLLUM
V. BOARD OF EDUCATION, 333 U.S. 203.  HOW CAN THE COURT NOW ORDER USE
OF TAX-SUPPORTED PROPERTY FOR THE PURPOSE?  IN OTHER WORDS, CAN THE
FIRST AMENDMENT TODAY MEAN A CITY CANNOT STOP WHAT YESTERDAY IT MEANT
NO CITY COULD ALLOW? 

FN11  RUSSELL, AUTHORITY AND THE INDIVIDUAL, 25. 
..END :















FEINER V. NEW YORK, 340 U.S. 315 


NO. 93.  ARGUED OCTOBER 17, 1950.  - DECIDED JANUARY 15, 1951.  - 300
N.Y. 391, 91 N.E.2D 316, AFFIRMED. 


PETITIONER MADE AN INFLAMMATORY SPEECH TO A MIXED CROWD OF 75 OR 80
NEGROES AND WHITE PEOPLE ON A CITY STREET.  HE MADE DEROGATORY REMARKS
ABOUT PRESIDENT TRUMAN, THE AMERICAN LEGION, AND LOCAL POLITICAL
OFFICIALS; ENDEAVORED TO AROUSE THE NEGROES AGAINST THE WHITES; AND
URGED THAT NEGROES RISE UP IN ARMS AND FIGHT FOR EQUAL RIGHTS.  THE
CROWD, WHICH BLOCKED THE SIDEWALK AND OVERFLOWED INTO THE STREET,
BECAME RESTLESS; ITS FEELINGS FOR AND AGAINST THE SPEAKER WERE RISING;
AND THERE WAS AT LEAST ONE THREAT OF VIOLENCE.  AFTER OBSERVING THE
SITUATION FOR SOME TIME WITHOUT INTERFERENCE, POLICE OFFICERS, IN ORDER
TO PREVENT A FIGHT, THRICE REQUESTED PETITIONER TO GET OFF THE BOX AND
STOP SPEAKING.  AFTER HIS THIRD REFUSAL, AND AFTER HE HAD BEEN SPEAKING
OVER 30 MINUTES, THEY ARRESTED HIM, AND HE WAS CONVICTED OF VIOLATING
SEC. 722 OF THE PENAL CODE OF NEW YORK, WHICH, IN EFFECT, FORBIDS
INCITEMENT OF A BREACH OF THE PEACE.  THE CONVICTION WAS AFFIRMED BY
TWO NEW YORK COURTS ON REVIEW.  HELD:  THE CONVICTION IS SUSTAINED
AGAINST A CLAIM THAT IT VIOLATED PETITIONER'S RIGHT OF FREE SPEECH
UNDER THE FIRST AND FOURTEENTH AMENDMENTS.  PP. 316-321. 

(A)  PETITIONER WAS NEITHER ARRESTED NOR CONVICTED FOR THE MAKING OR
THE CONTENT OF HIS SPEECH BUT FOR THE REACTION WHICH IT ACTUALLY
ENGENDERED.  PP. 319-320. 

(B)  THE POLICE CANNOT BE USED AS AN INSTRUMENT FOR THE SUPPRESSION
OF UNPOPULAR VIEWS; BUT, WHEN A SPEAKER PASSES THE BOUNDS OF ARGUMENT
OR PERSUASION AND UNDERTAKES INCITEMENT TO RIOT, THE POLICE ARE NOT
POWERLESS TO PREVENT A BREACH OF THE PEACE.  P. 321. 

FEINER V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

THE CASE IS STATED IN THE FIRST PARAGRAPH OF THE OPINION.  THE
DECISION BELOW IS AFFIRMED, P. 321. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF THE OFFENSE OF DISORDERLY CONDUCT, A
MISDEMEANOR UNDER THE NEW YORK PENAL LAWS, IN THE COURT OF SPECIAL
SESSIONS OF THE CITY OF SYRACUSE AND WAS SENTENCED TO THIRTY DAYS IN
THE COUNTY PENITENTIARY.  THE CONVICTION WAS AFFIRMED BY THE ONONDAGA
COUNTY COURT AND THE NEW YORK COURT OF APPEALS, 300 N.Y. 391, 91 N.E.2D
316(1950).  THE CASE IS HERE ON CERTIORARI, 339 U.S. 962(1950),
PETITIONER HAVING CLAIMED THAT THE CONVICTION IS IN VIOLATION OF HIS
RIGHT OF FREE SPEECH UNDER THE FOURTEENTH AMENDMENT. 

IN THE REVIEW OF STATE DECISIONS WHERE FIRST AMENDMENT RIGHTS ARE
DRAWN IN QUESTION, WE OF COURSE MAKE AN EXAMINATION OF THE EVIDENCE TO
ASCERTAIN INDEPENDENTLY WHETHER THE RIGHT HAS BEEN VIOLATED.  HERE, THE
TRIAL JUDGE, WHO HEARD THE CASE WITHOUT A JURY, RENDERED AN ORAL
DECISION AT THE END OF THE TRIAL, SETTING FORTH HIS DETERMINATION OF
THE FACTS UPON WHICH HE FOUND THE PETITIONER GUILTY.  HIS DECISION
INDICATED GENERALLY THAT HE BELIEVED THE STATE'S WITNESSES, AND HIS
SUMMATION OF THE TESTIMONY WAS USED BY THE TWO NEW YORK COURTS ON
REVIEW IN STATING THE FACTS.  OUR APPRAISAL OF THE FACTS IS, THEREFORE,
BASED UPON THE UNCONTROVERTED FACTS AND, WHERE CONTROVERSY EXISTS, UPON
THAT TESTIMONY WHICH THE TRIAL JUDGE DID REASONABLY CONCLUDE TO BE
TRUE. 

ON THE EVENING OF MARCH 8, 1949, PETITIONER IRVING FEINER WAS
ADDRESSING AN OPEN-AIR MEETING AT THE CORNER OF SOUTH MCBRIDE AND
HARRISON STREETS IN THE CITY OF SYRACUSE.  AT APPROXIMATELY 6:30 P.M.,
THE POLICE RECEIVED A TELEPHONE COMPLAINT CONCERNING THE MEETING, AND
TWO OFFICERS WERE DETAILED TO INVESTIGATE.  ONE OF THESE OFFICERS WENT
TO THE SCENE IMMEDIATELY, THE OTHER ARRIVING SOME TWELVE MINUTES
LATER.  THEY FOUND A CROWD OF ABOUT SEVENTY-FIVE OR EIGHTY PEOPLE, BOTH
NEGRO AND WHITE, FILLING THE SIDEWALK AND SPREADING OUT INTO THE
STREET.  PETITIONER, STANDING ON A LARGE WOODEN BOX ON THE SIDEWALK,
WAS ADDRESSING THE CROWD THROUGH A LOUD-SPEAKER SYSTEM ATTACHED TO AN
AUTOMOBILE.  ALTHOUGH THE PURPOSE OF HIS SPEECH WAS TO URGE HIS
LISTENERS TO ATTEND A MEETING TO BE HELD THAT NIGHT IN THE SYRACUSE
HOTEL, IN ITS COURSE HE WAS MAKING DEROGATORY REMARKS CONCERNING
PRESIDENT TRUMAN, THE AMERICAN LEGION, THE MAYOR OF SYRACUSE, AND OTHER
LOCAL POLITICAL OFFICIALS. 

THE POLICE OFFICERS MADE NO EFFORT TO INTERFERE WITH PETITIONER'S
SPEECH, BUT WERE FIRST CONCERNED WITH THE EFFECT OF THE CROWD ON BOTH
PEDESTRIAN AND VEHICULAR TRAFFIC.  THEY OBSERVED THE SITUATION FROM THE
OPPOSITE SIDE OF THE STREET, NOTING THAT SOME PEDESTRIANS WERE FORCED
TO WALK IN THE STREET TO AVOID THE CROWD.  SINCE TRAFFIC WAS PASSING AT
THE TIME, THE OFFICERS ATTEMPTED TO GET THE PEOPLE LISTENING TO
PETITIONER BACK ON THE SIDEWALK.  THE CROWD WAS RESTLESS AND THERE WAS
SOME PUSHING, SHOVING AND MILLING AROUND.  ONE OF THE OFFICERS
TELEPHONED THE POLICE STATION FROM A NEARBY STORE, AND THEN BOTH
POLICEMEN CROSSED THE STREET AND MINGLED WITH THE CROWD WITHOUT ANY
INTENTION OF ARRESTING THE SPEAKER. 

AT THIS TIME, PETITIONER WAS SPEAKING IN A "LOUD, HIGH-PITCHED
VOICE."  HE GAVE THE IMPRESSION THAT HE WAS ENDEAVORING TO AROUSE THE
NEGRO PEOPLE AGAINST THE WHITES, URGING THAT THEY RISE UP IN ARMS AND
FIGHT FOR EQUAL RIGHTS.  THE STATEMENTS BEFORE SUCH A MIXED AUDIENCE
"STIRRED UP A LITTLE EXCITEMENT."  SOME OF THE ONLOOKERS MADE REMARKS
TO THE POLICE ABOUT THEIR INABILITY TO HANDLE THE CROWD AND AT LEAST
ONE THREATENED VIOLENCE IF THE POLICE DID NOT ACT.  THERE WERE OTHERS
WHO APPEARED TO BE FAVORING PETITIONER'S ARGUMENTS.  BECAUSE OF THE
FEELING THAT EXISTED IN THE CROWD BOTH FOR AND AGAINST THE SPEAKER, THE
OFFICERS FINALLY "STEPPED IN TO PREVENT IT FROM RESULTING IN A FIGHT." 
ONE OF THE OFFICERS APPROACHED THE PETITIONER, NOT FOR THE PURPOSE OF
ARRESTING HIM, BUT TO GET HIM TO BREAK UP THE CROWD.  HE ASKED
PETITIONER TO GET DOWN OFF THE BOX, BUT THE LATTER REFUSED TO ACCEDE TO
HIS REQUEST AND CONTINUED TALKING.  THE OFFICER WAITED FOR A MINUTE AND
THEN DEMANDED THAT HE CEASE TALKING.  ALTHOUGH THE OFFICER HAD THUS
TWICE REQUESTED PETITIONER TO STOP OVER THE COURSE OF SEVERAL MINUTES,
PETITIONER NOT ONLY IGNORED HIM BUT CONTINUED TALKING.  DURING ALL THIS
TIME, THE CROWD WAS PRESSING CLOSER AROUND PETITIONER AND THE OFFICER. 
FINALLY, THE OFFICER TOLD PETITIONER HE WAS UNDER ARREST AND ORDERED
HIM TO GET DOWN FROM THE BOX, REACHING UP TO GRAB HIM.  PETITIONER
STEPPED DOWN, ANNOUNCING OVER THE MICROPHONE THAT "THE LAW HAS ARRIVED,
AND I SUPPOSE THEY WILL TAKE OVER NOW."  IN ALL, THE OFFICER HAD ASKED
PETITIONER TO GET DOWN OFF THE BOX THREE TIMES OVER A SPACE OF FOUR OR
FIVE MINUTES.  PETITIONER HAD BEEN SPEAKING FOR OVER A HALF HOUR. 

ON THESE FACTS, PETITIONER WAS SPECIFICALLY CHARGED WITH VIOLATION OF
SEC. 722 OF THE PENAL LAW OF NEW YORK, THE PERTINENT PART OF WHICH IS
SET OUT IN THE MARGIN.  FN1  THE BILL OF PARTICULARS, DEMANDED BY
PETITIONER AND FURNISHED BY THE STATE, GAVE IN DETAIL THE FACTS UPON
WHICH THE PROSECUTION RELIED TO SUPPORT THE CHARGE OF DISORDERLY
CONDUCT.  PARAGRAPH C IS PARTICULARLY PERTINENT HERE:  "BY IGNORING AND
REFUSING TO HEED AND OBEY REASONABLE POLICE ORDERS ISSUED AT THE TIME
AND PLACE MENTIONED IN THE INFORMATION TO REGULATE AND CONTROL SAID
CROWD AND TO PREVENT A BREACH OR BREACHES OF THE PEACE AND TO PREVENT
INJURY TO PEDESTRIANS ATTEMPTING TO USE SAID WALK, AND BEING FORCED
INTO THE HIGHWAY ADJACENT TO THE PLACE IN QUESTION, AND PREVENT INJURY
TO THE PUBLIC GENERALLY." 

WE ARE NOT FACED HERE WITH BLIND CONDONATION BY A STATE COURT OF
ARBITRARY POLICE ACTION.  PETITIONER WAS ACCORDED A FULL, FAIR TRIAL. 
THE TRIAL JUDGE HEARD TESTIMONY SUPPORTING AND CONTRADICTING THE
JUDGMENT OF THE POLICE OFFICERS THAT A CLEAR DANGER OF DISORDER WAS
THREATENED.  AFTER WEIGHING THIS CONTRADICTORY EVIDENCE, THE TRIAL
JUDGE REACHED THE CONCLUSION THAT THE POLICE OFFICERS WERE JUSTIFIED IN
TAKING ACTION TO PREVENT A BREACH OF THE PEACE.  THE EXERCISE OF THE
POLICE OFFICERS' PROPER DISCRETIONARY POWER TO PREVENT A BREACH OF THE
PEACE WAS THUS APPROVED BY THE TRIAL COURT AND LATER BY TWO COURTS ON
REVIEW.  FN2  THE COURTS BELOW RECOGNIZED PETITIONER'S RIGHT TO HOLD A
STREET MEETING AT THIS LOCALITY, TO MAKE USE OF LOUD-SPEAKING EQUIPMENT
IN GIVING HIS SPEECH, AND TO MAKE DEROGATORY REMARKS CONCERNING PUBLIC
OFFICIALS AND THE AMERICAN LEGION.  THEY FOUND THAT THE OFFICERS IN
MAKING THE ARREST WERE MOTIVATED SOLELY BY A PROPER CONCERN FOR THE
PRESERVATION OF ORDER AND PROTECTION OF THE GENERAL WELFARE, AND THAT
THERE WAS NO EVIDENCE WHICH COULD LEND COLOR TO A CLAIM THAT THE ACTS
OF THE POLICE WERE A COVER FOR SUPPRESSION OF PETITIONER'S VIEWS AND
OPINIONS.  PETITIONER WAS THUS NEITHER ARRESTED NOR CONVICTED FOR THE
MAKING OR THE CONTENT OF HIS SPEECH.  RATHER, IT WAS THE REACTION WHICH
IT ACTUALLY ENGENDERED. 

THE LANGUAGE OF CANTWELL V. CONNECTICUT, 310 U.S. 296(1940), IS
APPROPRIATE HERE.  "THE OFFENSE KNOWN AS BREACH OF THE PEACE EMBRACES A
GREAT VARIETY OF CONDUCT DESTROYING OR MENACING PUBLIC ORDER AND
TRANQUILITY.  IT INCLUDES NOT ONLY VIOLENT ACTS BUT ACTS AND WORDS
LIKELY TO PRODUCE VIOLENCE IN OTHERS.  NO ONE WOULD HAVE THE HARDIHOOD
TO SUGGEST THAT THE PRINCIPLE OF FREEDOM OF SPEECH SANCTIONS INCITEMENT
TO RIOT OR THAT RELIGIOUS LIBERTY CONNOTES THE PRIVILEGE TO EXHORT
OTHERS TO PHYSICAL ATTACK UPON THOSE BELONGING TO ANOTHER SECT.  WHEN
CLEAR AND PRESENT DANGER OF RIOT, DISORDER, INTERFERENCE WITH TRAFFIC
UPON THE PUBLIC STREETS, OR OTHER IMMEDIATE THREAT TO PUBLIC SAFETY,
PEACE, OR ORDER, APPEARS, THE POWER OF THE STATE TO PREVENT OR PUNISH
IS OBVIOUS."  310 U.S. AT 308.  THE FINDINGS OF THE NEW YORK COURTS AS
TO THE CONDITION OF THE CROWD AND THE REFUSAL OF PETITIONER TO OBEY THE
POLICE REQUESTS, SUPPORTED AS THEY ARE BY THE RECORD OF THIS CASE, ARE
PERSUASIVE THAT THE CONVICTION OF PETITIONER FOR VIOLATION OF PUBLIC
PEACE, ORDER AND AUTHORITY DOES NOT EXCEED THE BOUNDS OF PROPER STATE
POLICE ACTION.  THIS COURT RESPECTS, AS IT MUST, THE INTEREST OF THE
COMMUNITY IN MAINTAINING PEACE AND ORDER ON ITS STREETS.  SCHNEIDER V.
STATE, 308 U.S. 147, 160(1939); KOVACS V. COOPER, 336 U.S. 77,
82(1949).  WE CANNOT SAY THAT THE PRESERVATION OF THAT INTEREST HERE
ENCROACHES ON THE CONSTITUTIONAL RIGHTS OF THIS PETITIONER. 

WE ARE WELL AWARE THAT THE ORDINARY MURMURINGS AND OBJECTIONS OF A
HOSTILE AUDIENCE CANNOT BE ALLOWED TO SILENCE A SPEAKER, AND ARE ALSO
MINDFUL OF THE POSSIBLE DANGER OF GIVING OVERZEALOUS POLICE OFFICIALS
COMPLETE DISCRETION TO BREAK UP OTHERWISE LAWFUL PUBLIC MEETINGS.  "A
STATE MAY NOT UNDULY SUPPRESS FREE COMMUNICATION OF VIEWS, RELIGIOUS OR
OTHER, UNDER THE GUISE OF CONSERVING DESIRABLE CONDITIONS."  CANTWELL
V. CONNECTICUT, SUPRA, AT 308.  BUT WE ARE NOT FACED HERE WITH SUCH A
SITUATION.  IT IS ONE THING TO SAY THAT THE POLICE CANNOT BE USED AS AN
INSTRUMENT FOR THE SUPPRESSION OF UNPOPULAR VIEWS, AND ANOTHER TO SAY
THAT, WHEN AS HERE THE SPEAKER PASSES THE BOUNDS OF ARGUMENT OR
PERSUASION AND UNDERTAKES INCITEMENT TO RIOT, THEY ARE POWERLESS TO
PREVENT A BREACH OF THE PEACE.  NOR IN THIS CASE CAN WE CONDEMN THE
CONSIDERED JUDGMENT OF THREE NEW YORK COURTS APPROVING THE MEANS WHICH
THE POLICE, FACED WITH A CRISIS, USED IN THE EXERCISE OF THEIR POWER
AND DUTY TO PRESERVE PEACE AND ORDER.  THE FINDINGS OF THE STATE COURTS
AS TO THE EXISTING SITUATION AND THE IMMINENCE OF GREATER DISORDER
COUPLED WITH PETITIONER'S DELIBERATE DEFIANCE OF THE POLICE OFFICERS
CONVINCE US THAT WE SHOULD NOT REVERSE THIS CONVICTION IN THE NAME OF
FREE SPEECH.  AFFIRMED. 

FN1  SECTION 722.  "ANY PERSON WHO WITH INTENT TO PROVOKE A BREACH OF
THE PEACE, OR WHEREBY A BREACH OF THE PEACE MAY BE OCCASIONED, COMMITS
ANY OF THE FOLLOWING ACTS SHALL BE DEEMED TO HAVE COMMITTED THE OFFENSE
OF DISORDERLY CONDUCT: 

"1.  USES OFFENSIVE, DISORDERLY, THREATENING, ABUSIVE OR INSULTING
LANGUAGE, CONDUCT OR BEHAVIOR; 

"2.  ACTS IN SUCH A MANNER AS TO ANNOY, DISTURB, INTERFERE WITH,
OBSTRUCT, OR BE OFFENSIVE TO OTHERS; 

"3.  CONGREGATES WITH OTHERS ON A PUBLIC STREET AND REFUSES TO MOVE
ON WHEN ORDERED BY THE POLICE; ...  " 

FN2  THE NEW YORK COURT OF APPEALS SAID:  "AN IMMINENT DANGER OF A
BREACH OF THE PEACE, OF A DISTURBANCE OF PUBLIC ORDER, PERHAPS EVEN OF
RIOT, WAS THREATENED.  ...  THE DEFENDANT, AS INDICATED ABOVE,
DISRUPTED PEDESTRIAN AND VEHICULAR TRAFFIC ON THE SIDEWALK AND STREET,
AND, WITH INTENT TO PROVOKE A BREACH OF THE PEACE AND WITH KNOWLEDGE OF
THE CONSEQUENCES, SO INFLAMED AND AGITATED A MIXED AUDIENCE OF
SYMPATHIZERS AND OPPONENTS THAT, IN THE JUDGMENT OF THE POLICE OFFICERS
PRESENT, A CLEAR DANGER OF DISORDER AND VIOLENCE WAS THREATENED. 
DEFENDANT THEN DELIBERATELY REFUSED TO ACCEDE TO THE REASONABLE REQUEST
OF THE OFFICER, MADE WITHIN THE LAWFUL SCOPE OF HIS AUTHORITY, THAT THE
DEFENDANT DESIST IN THE INTEREST OF PUBLIC WELFARE AND SAFETY."  300
N.Y. 391, 400, 402, 91 N.E.2D 316, 319, 321. 

(FOR OPINION OF MR. JUSTICE FRANKFURTER, CONCURRING IN THE RESULT,
SEE ANTE, P. 273.) 

MR. JUSTICE BLACK, DISSENTING. 

THE RECORD BEFORE US CONVINCES ME THAT PETITIONER, A YOUNG COLLEGE
STUDENT, HAS BEEN SENTENCED TO THE PENITENTIARY FOR THE UNPOPULAR VIEWS
HE EXPRESSED  FN1  ON MATTERS OF PUBLIC INTEREST WHILE LAWFULLY MAKING
A STREET-CORNER SPEECH IN SYRACUSE, NEW YORK.  FN2  TODAY'S DECISION,
HOWEVER, INDICATES THAT WE MUST BLIND OURSELVES TO THIS FACT BECAUSE
THE TRIAL JUDGE FULLY ACCEPTED THE TESTIMONY OF THE PROSECUTION
WITNESSES ON ALL IMPORTANT POINTS.  FN3  MANY TIMES IN THE PAST THIS
COURT HAS SAID THAT DESPITE FINDINGS BELOW, WE WILL EXAMINE THE
EVIDENCE FOR OURSELVES TO ASCERTAIN WHETHER FEDERALLY PROTECTED RIGHTS
HAVE BEEN DENIED; OTHERWISE REVIEW HERE WOULD FAIL OF ITS PURPOSE IN
SAFEGUARDING CONSTITUTIONAL GUARANTEES.  FN4  EVEN A PARTIAL
ABANDONMENT OF THIS RULE MARKS A DARK DAY FOR CIVIL LIBERTIES IN OUR
NATION. 

BUT STILL MORE HAS BEEN LOST TODAY.  EVEN ACCEPTING EVERY "FINDING OF
FACT" BELOW, I THINK THIS CONVICTION MAKES A MOCKERY OF THE FREE SPEECH
GUARANTEES OF THE FIRST AND FOURTEENTH AMENDMENTS.  THE END RESULT OF
THE AFFIRMANCE HERE IS TO APPROVE A SIMPLE AND READILY AVAILABLE
TECHNIQUE BY WHICH CITIES AND STATES CAN WITH IMPUNITY SUBJECT ALL
SPEECHES, POLITICAL OR OTHERWISE, ON STREETS OR ELSEWHERE, TO THE
SUPERVISION AND CENSORSHIP OF THE LOCAL POLICE.  I WILL HAVE NO PART OR
PARCEL IN THIS HOLDING WHICH I VIEW AS A LONG STEP TOWARD TOTALITARIAN
AUTHORITY. 

CONSIDERING ONLY THE EVIDENCE WHICH THE STATE COURTS APPEAR TO HAVE
ACCEPTED, THE PERTINENT "FACTS" ARE:  SYRACUSE CITY AUTHORITIES GRANTED
A PERMIT FOR O. JOHN ROGGE, A FORMER ASSISTANT ATTORNEY GENERAL, TO
SPEAK IN A PUBLIC SCHOOL BUILDING ON MARCH 8, 1948 ON THE SUBJECT OF
RACIAL DISCRIMINATION AND CIVIL LIBERTIES.  ON MARCH 8TH, HOWEVER, THE
AUTHORITIES CANCELLED THE PERMIT.  THE YOUNG PROGRESSIVES UNDER WHOSE
AUSPICES THE MEETING WAS SCHEDULED THEN ARRANGED FOR MR. ROGGE TO SPEAK
AT THE HOTEL SYRACUSE.  THE GATHERING ON THE STREET WHERE PETITIONER
SPOKE WAS HELD TO PROTEST THE CANCELLATION AND TO PUBLICIZE THE MEETING
AT THE HOTEL.  IN THIS CONNECTION, PETITIONER USED DEROGATORY BUT NOT
PROFANE LANGUAGE WITH REFERENCE TO THE CITY AUTHORITIES, PRESIDENT
TRUMAN AND THE AMERICAN LEGION.  AFTER HEARING SOME OF THESE REMARKS, A
POLICEMAN, WHO HAD BEEN SENT TO THE MEETING BY HIS SUPERIORS, REPORTED
TO POLICE HEADQUARTERS BY TELEPHONE.  TO WHOM HE REPORTED OR WHAT WAS
SAID DOES NOT APPEAR IN THE RECORD, BUT AFTER RETURNING FROM THE CALL,
HE AND ANOTHER POLICEMAN STARTED THROUGH THE CROWD TOWARD PETITIONER. 
BOTH OFFICERS SWORE THEY DID NOT INTEND TO MAKE AN ARREST WHEN THEY
STARTED, AND THE TRIAL COURT ACCEPTED THEIR STATEMENTS.  THEY ALSO
SAID, AND THE COURT BELIEVED, THAT THEY HEARD AND SAW "ANGRY
MUTTERINGS," "PUSHING," "SHOVING AND MILLING AROUND" AND
"RESTLESSNESS."  PETITIONER SPOKE IN A "LOUD, HIGH PITCHED VOICE."  HE
SAID THAT COLORED PEOPLE "DON'T HAVE EQUAL RIGHTS AND THEY SHOULD RISE
UP IN ARMS AND FIGHT FOR THEM."  FN5  ONE MAN WHO HEARD THIS TOLD THE
OFFICERS THAT IF THEY DID NOT TAKE THAT "S  ...  O  ...  B ...  " OFF
THE BOX, HE WOULD.  THE OFFICERS THEN APPROACHED PETITIONER FOR THE
FIRST TIME.  ONE OF THEM FIRST "ASKED" PETITIONER TO GET OFF THE BOX,
BUT PETITIONER CONTINUED URGING HIS AUDIENCE TO ATTEND ROGGE'S SPEECH. 
THE OFFICER NEXT "TOLD" PETITIONER TO GET DOWN, BUT HE DID NOT.  THE
OFFICER FINALLY "DEMANDED" THAT PETITIONER GET DOWN, TELLING HIM HE WAS
UNDER ARREST.  PETITIONER THEN TOLD THE CROWD THAT "THE LAW HAD ARRIVED
AND WOULD TAKE OVER" AND ASKED WHY HE WAS ARRESTED.  THE OFFICER FIRST
REPLIED THAT THE CHARGE WAS "UNLAWFUL ASSEMBLY" BUT LATER CHANGED THE
GROUND TO "DISORDERLY CONDUCT."  FN6 

THE COURT'S OPINION APPARENTLY RESTS ON THIS REASONING:  THE
POLICEMAN, UNDER THE CIRCUMSTANCES DETAILED, COULD REASONABLY CONCLUDE
THAT SERIOUS FIGHTING OR EVEN RIOT WAS IMMINENT; THEREFORE HE COULD
STOP PETITIONER'S SPEECH TO PREVENT A BREACH OF PEACE; ACCORDINGLY, IT
WAS "DISORDERLY CONDUCT" FOR PETITIONER TO CONTINUE SPEAKING IN
DISOBEDIENCE OF THE OFFICER'S REQUEST.  AS TO THE EXISTENCE OF A
DANGEROUS SITUATION ON THE STREET CORNER, IT SEEMS FAR-FETCHED TO
SUGGEST THAT THE "FACTS" SHOW ANY IMMINENT THREAT OF RIOT OR
UNCONTROLLABLE DISORDER.  FN7  IT IS NEITHER UNUSUAL NOR UNEXPECTED
THAT SOME PEOPLE AT PUBLIC STREET MEETINGS MUTTER, MILL ABOUT, PUSH,
SHOVE, OR DISAGREE, EVEN VIOLENTLY, WITH THE SPEAKER.  INDEED, IT IS
RARE WHERE CONTROVERSIAL TOPICS ARE DISCUSSED THAT AN OUTDOOR CROWD
DOES NOT DO SOME OR ALL OF THESE THINGS.  NOR DOES ONE ISOLATED THREAT
TO ASSAULT THE SPEAKER FOREBODE DISORDER.  ESPECIALLY SHOULD THE DANGER
BE DISCOUNTED WHERE, AS HERE, THE PERSON THREATENING WAS A MAN WHOSE
WIFE AND TWO SMALL CHILDREN ACCOMPANIED HIM AND WHO, SO FAR AS THE
RECORD SHOWS, WAS NEVER CLOSE ENOUGH TO PETITIONER TO CARRY OUT THE
THREAT. 

MOREOVER, ASSUMING THAT THE "FACTS" DID INDICATE A CRITICAL
SITUATION, I REJECT THE IMPLICATION OF THE COURT'S OPINION THAT THE
POLICE HAD NO OBLIGATION TO PROTECT PETITIONER'S CONSTITUTIONAL RIGHT
TO TALK.  THE POLICE OF COURSE HAVE POWER TO PREVENT BREACHES OF THE
PEACE.  BUT IF, IN THE NAME OF PRESERVING ORDER, THEY EVER CAN
INTERFERE WITH A LAWFUL PUBLIC SPEAKER, THEY FIRST MUST MAKE ALL
REASONABLE EFFORTS TO PROTECT HIM.  FN8  HERE THE POLICEMEN DID NOT
EVEN PRETEND TO TRY TO PROTECT PETITIONER.  ACCORDING TO THE OFFICERS'
TESTIMONY, THE CROWD WAS RESTLESS BUT THERE IS NO SHOWING OF ANY
ATTEMPT TO QUIET IT; PEDESTRIANS WERE FORCED TO WALK INTO THE STREET,
BUT THERE WAS NO EFFORT TO CLEAR A PATH ON THE SIDEWALK; ONE PERSON
THREATENED TO ASSAULT PETITIONER BUT THE OFFICERS DID NOTHING TO
DISCOURAGE THIS WHEN EVEN A WORD MIGHT HAVE SUFFICED.  THEIR DUTY WAS
TO PROTECT PETITIONER'S RIGHT TO TALK, EVEN TO THE EXTENT OF ARRESTING
THE MAN WHO THREATENED TO INTERFERE.  FN9  INSTEAD, THEY SHIRKED THAT
DUTY AND ACTED ONLY TO SUPPRESS THE RIGHT TO SPEAK. 

FINALLY, I CANNOT AGREE WITH THE COURT'S STATEMENT THAT PETITIONER'S
DISREGARD OF THE POLICEMAN'S UNEXPLAINED REQUEST AMOUNTED TO SUCH
"DELIBERATE DEFIANCE" AS WOULD JUSTIFY AN ARREST OR CONVICTION FOR
DISORDERLY CONDUCT.  ON THE CONTRARY, I THINK THAT THE POLICEMAN'S
ACTION WAS A "DELIBERATE DEFIANCE" OF ORDINARY OFFICIAL DUTY AS WELL AS
OF THE CONSTITUTIONAL RIGHT OF FREE SPEECH.  FOR AT LEAST WHERE TIME
ALLOWS, COURTESY AND EXPLANATION OF COMMANDS ARE BASIC ELEMENTS OF GOOD
OFFICIAL CONDUCT IN A DEMOCRATIC SOCIETY.  HERE PETITIONER WAS "ASKED"
THEN "TOLD" THEN "COMMANDED" TO STOP SPEAKING, BUT A MAN MAKING A
LAWFUL ADDRESS IS CERTAINLY NOT REQUIRED TO BE SILENT MERELY BECAUSE AN
OFFICER DIRECTS IT.  PETITIONER WAS ENTITLED TO KNOW WHY HE SHOULD
CEASE DOING A LAWFUL ACT.  NOT ONCE WAS HE TOLD.  I UNDERSTAND THAT
PEOPLE IN AUTHORITARIAN COUNTRIES MUST OBEY ARBITRARY ORDERS.  I HAD
HOPED THAT THERE WAS NO SUCH DUTY IN THE UNITED STATES. 

IN MY JUDGMENT, TODAY'S HOLDING MEANS THAT AS A PRACTICAL MATTER,
MINORITY SPEAKERS CAN BE SILENCED IN ANY CITY.  HEREAFTER, DESPITE THE
FIRST AND FOURTEENTH AMENDMENTS, THE POLICEMAN'S CLUB CAN TAKE HEAVY
TOLL OF A CURRENT ADMINISTRATION'S PUBLIC CRITICS.  FN10  CRITICISM OF
PUBLIC OFFICIALS WILL BE TOO DANGEROUS FOR ALL BUT THE MOST
COURAGEOUS.  FN11  THIS IS TRUE REGARDLESS OF THE FACT THAT IN TWO
OTHER CASES DECIDED THIS DAY, KUNZ V. NEW YORK, 340 U.S. 290; NIEMOTKO
V. MARYLAND, 340 U.S. 268, A MAJORITY, IN OBEDIENCE TO PAST DECISIONS
OF THIS COURT, PROVIDES A THEORETICAL SAFEGUARD FOR FREEDOM OF SPEECH. 
FOR WHATEVER IS THOUGHT TO BE GUARANTEED IN KUNZ AND NIEMOTKO IS TAKEN
AWAY BY WHAT IS DONE HERE.  THE THREE CASES READ TOGETHER MEAN THAT
WHILE PREVIOUS RESTRAINTS PROBABLY CANNOT BE IMPOSED ON AN UNPOPULAR
SPEAKER, THE POLICE HAVE DISCRETION TO SILENCE HIM AS SOON AS THE
CUSTOMARY HOSTILITY TO HIS VIEWS DEVELOPS. 

IN THIS CASE I WOULD REVERSE THE CONVICTION, THEREBY ADHERING TO THE
GREAT PRINCIPLES OF THE FIRST AND FOURTEENTH AMENDMENTS AS ANNOUNCED
FOR THIS COURT IN 1940 BY MR. JUSTICE ROBERTS: 

"IN THE REALM OF RELIGIOUS FAITH, AND IN THAT OF POLITICAL BELIEF,
SHARP DIFFERENCES ARISE.  IN BOTH FIELDS THE TENETS OF ONE MAN MAY SEEM
THE RANKEST ERROR TO HIS NEIGHBOR.  TO PERSUADE OTHERS TO HIS OWN POINT
OF VIEW, THE PLEADER, AS WE KNOW, AT TIMES, RESORTS TO EXAGGERATION, TO
VILIFICATION OF MEN WHO HAVE BEEN, OR ARE, PROMINENT IN CHURCH OR
STATE, AND EVEN TO FALSE STATEMENT.  BUT THE PEOPLE OF THIS NATION HAVE
ORDAINED IN THE LIGHT OF HISTORY, THAT, IN SPITE OF THE PROBABILITY OF
EXCESSES AND ABUSES, THESE LIBERTIES ARE, IN THE LONG VIEW, ESSENTIAL
TO ENLIGHTENED OPINION AND RIGHT CONDUCT ON THE PART OF THE CITIZENS OF
A DEMOCRACY."  CANTWELL V. CONNECTICUT, 310 U.S. 296, 310. 

I REGRET MY INABILITY TO PERSUADE THE COURT NOT TO RETREAT FROM THIS
PRINCIPLE. 

FN1  THE TRIAL JUDGE FRAMED THE QUESTION FOR DECISION AS FOLLOWS:
"THE QUESTION HERE, IS WHAT WAS SAID AND WHAT WAS DONE?  AND IT DOESN'T
MAKE ANY DIFFERENCE WHETHER WHATEVER WAS SAID, WAS SAID WITH A LOUD
SPEAKER OR NOT.  THERE ARE ACTS AND CONDUCT AN INDIVIDUAL CAN ENGAGE IN
WHEN YOU DON'T EVEN HAVE TO HAVE A CROWD GATHERED AROUND WHICH WOULD
JUSTIFY A CHARGE OF DISORDERLY CONDUCT.  THE QUESTION IS, WHAT DID THIS
DEFENDANT SAY AND DO AT THAT PARTICULAR TIME AND THE COURT MUST
DETERMINE WHETHER THOSE FACTS, CONCERNING WHAT THE DEFENDANT DID OR
SAID, ARE SUFFICIENT TO SUPPORT THE CHARGE."  THERE IS NO SUGGESTION IN
THE RECORD THAT PETITIONER "DID" ANYTHING OTHER THAN (1) SPEAK AND (2)
CONTINUE FOR A SHORT TIME TO INVITE PEOPLE TO A PUBLIC MEETING AFTER A
POLICEMAN HAD REQUESTED HIM TO STOP SPEAKING. 

FN2  THERE WAS NO CHARGE THAT ANY CITY OR STATE LAW PROHIBITED SUCH A
MEETING AT THE PLACE OR TIME IT WAS HELD.  EVIDENCE SHOWED THAT IT WAS
CUSTOMARY TO HOLD PUBLIC GATHERINGS ON THAT SAME CORNER EVERY FRIDAY
NIGHT, AND THE TRIAL JUDGE WHO CONVICTED PETITIONER ADMITTED THAT HE
UNDERSTOOD THE MEETING WAS A LAWFUL ONE.  NOR DID THE JUDGE TREAT THE
LAWFUL MEETING AS UNLAWFUL BECAUSE A CROWD CONGREGATED ON THE
SIDEWALK.  CONSEQUENTLY, ANY DISCUSSION OF DISRUPTED PEDESTRIAN AND
VEHICULAR TRAFFIC, WHILE SUGGESTIVE COLORATION, IS IMMATERIAL UNDER THE
CHARGE AND CONVICTION HERE. 

IT IS IMPLIED IN A CONCURRING OPINION THAT THE USE OF SOUND
AMPLIFIERS IN SOME WAY CAUSED THE MEETING TO BECOME LESS LAWFUL.  THIS
FACT, HOWEVER, HAD NOTHING TO DO WITH THE CONVICTION OF PETITIONER.  IN
SENTENCING HIM THE TRIAL COURT SAID:  "YOU HAD A PERFECT RIGHT TO
APPEAR THERE AND TO USE THAT IMPLEMENT, THE LOUD SPEAKER.  YOU HAD A
RIGHT TO HAVE IT IN THE STREET."  SEE ALSO NOTE 1, SUPRA. 

FN3  THE TRIAL COURT MADE NO FINDINGS OF FACT AS SUCH.  A DECISION
WAS RENDERED FROM THE BENCH IN WHICH, AMONG OTHER THINGS, THE TRIAL
JUDGE EXPRESSED SOME VIEWS ON THE EVIDENCE.  SEE NOTE 11, INFRA. 

FN4  IN NORRIS V. ALABAMA, 294 U.S. 587, THE EVIDENCE AS TO WHETHER
NEGROES HAD BEEN DISCRIMINATED AGAINST IN THE SELECTION OF GRAND JURIES
WAS CONFLICTING.  CHIEF JUSTICE HUGHES, WRITING FOR THE COURT, SAID AT
PAGES 589-590: "THE QUESTION IS OF THE APPLICATION OF THIS ESTABLISHED
PRINCIPLE (EQUAL PROTECTION) TO THE FACTS DISCLOSED BY THE RECORD. 
THAT THE QUESTION IS ONE OF FACT DOES NOT RELIEVE US OF THE DUTY TO
DETERMINE WHETHER IN TRUTH A FEDERAL RIGHT HAS BEEN DENIED.  WHEN A
FEDERAL RIGHT HAS BEEN SPECIALLY SET UP AND CLAIMED IN A STATE COURT,
IT IS OUR PROVINCE TO INQUIRE NOT MERELY WHETHER IT WAS DENIED IN
EXPRESS TERMS BUT ALSO WHETHER IT WAS DENIED IN SUBSTANCE AND EFFECT. 
IF THIS REQUIRES AN EXAMINATION OF EVIDENCE, THAT EXAMINATION MUST BE
MADE.  OTHERWISE, REVIEW BY THIS COURT WOULD FAIL OF ITS PURPOSE IN
SAFEGUARDING CONSTITUTIONAL RIGHTS.  THUS, WHENEVER A CONCLUSION OF LAW
OF A STATE COURT AS TO A FEDERAL RIGHT AND FINDINGS OF FACT ARE SO
INTERMINGLED THAT THE LATTER CONTROL THE FORMER, IT IS INCUMBENT UPON
US TO ANALYZE THE FACTS IN ORDER THAT THE APPROPRIATE ENFORCEMENT OF
THE FEDERAL RIGHT MAY BE ASSURED."  THIS SAME RULE HAS BEEN ANNOUNCED
IN THE FOLLOWING CASES AS WELL AS IN NUMEROUS OTHERS: TRUAX V.
CORRIGAN, 257 U.S. 312, 324; HOOVEN & ALLISON CO. V. EVATT, 324 U.S.
652, 659; CHAMBERS V. FLORIDA, 309 U.S. 227, 228; PIERRE V. LOUISIANA,
306 U.S. 354, 358; PENNEKAMP V. FLORIDA, 328 U.S. 331, 335; PATTON V.
MISSISSIPPI, 332 U.S. 463, 466; CRAIG V. HARNEY, 331 U.S. 367, 373;
OYAMA V. CALIFORNIA, 332 U.S. 633, 636; POLLOCK V. WILLIAMS, 322 U.S.
4, 13; FAY V. NEW YORK, 332 U.S. 261, 272; AKINS V. TEXAS, 325 U.S.
398, 401; KANSAS CITY SOUTHERN R. CO. V. ALBERS COMM'N CO., 223 U.S.
573, 591; FIRST NATIONAL BANK V. HARTFORD, 273 U.S. 548, 552; FISKE V.
KANSAS, 274 U.S. 380, 385; GREAT NORTHERN R. CO. V. WASHINGTON, 300
U.S. 154, 165-167.  THIS COURT HAS USED VARYING PHRASEOLOGY IN STATING
THE CIRCUMSTANCES UNDER WHICH IT WOULD REVIEW STATE COURT FINDINGS OF
FACT, BUT IT HAS NOT HESITATED TO MAKE SUCH REVIEW WHEN NECESSARY TO
PROTECT A FEDERAL RIGHT.  COMPARE GREAT NORTHERN R. CO. V. WASHINGTON,
SUPRA, WITH TAYLOR V. MISSISSIPPI, 319 U.S. 583, 585-586. 

FN5  I AM ACCEPTING THIS ALTHOUGH I BELIEVE THE RECORD DEMONSTRATES
RATHER CONCLUSIVELY THAT PETITIONER DID NOT USE THE PHRASE "IN ARMS" IN
THE MANNER TESTIFIED TO BY THE OFFICERS.  RELIABLE WITNESSES SWORE THAT
PETITIONER'S STATEMENT WAS THAT HIS LISTENERS "COULD RISE UP AND FIGHT
FOR THEIR RIGHTS BY GOING ARM IN ARM TO THE HOTEL SYRACUSE, BLACK AND
WHITE ALIKE, TO HEAR JOHN ROGGE."  THE TESTIMONY OF NEITHER OF THE TWO
OFFICERS CONTAINED THE PHRASE "IN ARMS" WHEN THEY FIRST TESTIFIED ON
THIS SUBJECT; THEY ADDED IT ONLY AFTER COUNSEL FOR THE PROSECUTION WAS
PERMITTED BY THE COURT, OVER PETITIONER'S OBJECTION, TO PROPOUND
LEADING AND SUGGESTIVE QUESTIONS.  IN ANY EVENT, THE STATEMENT ASCRIBED
TO PETITIONER BY THE OFFICERS SEEMS CLEARLY RHETORICAL WHEN READ IN
CONTEXT. 

FN6  "A CHARGE OF USING LANGUAGE LIKELY TO CAUSE A BREACH OF THE
PEACE IS A CONVENIENT CATCHALL TO HOLD UNPOPULAR SOAPBOX ORATORS." 
CHAFEE, FREE SPEECH IN THE UNITED STATES, 524.  THE RELATED CHARGE OF
CONDUCTING A "DISORDERLY HOUSE" HAS ALSO BEEN USED TO SUPPRESS AND
PUNISH MINORITY VIEWS.  FOR EXAMPLE, AN ENGLISH STATUTE OF 1799
CLASSIFIED AS DISORDERLY HOUSES CERTAIN UNLICENSED PLACES ("HOUSE,
ROOM, FIELD, OR OTHER PLACE") IN WHICH "ANY LECTURE OR DISCOURSE SHALL
BE PUBLICKLY DELIVERED, OR ANY PUBLICK DEBATE SHALL BE HAD ON ANY
SUBJECT  ...  " OR WHICH WAS USED "FOR THE PURPOSE OF READING BOOKS,
PAMPHLETS, NEWSPAPERS, OR OTHER PUBLICATIONS  ...  "  39 GEO. III, C.
79, SEC. 15. 

FN7  THE BELIEF OF THE NEW YORK COURT OF APPEALS THAT THE SITUATION
ON THE STREET CORNER WAS CRITICAL IS NOT SUPPORTED BY THE RECORD AND
ACCORDINGLY SHOULD NOT BE GIVEN MUCH WEIGHT HERE.  TWO ILLUSTRATIONS
WILL SUFFICE:  THE COURT OF APPEALS RELIED UPON A SPECIFIC STATEMENT OF
ONE POLICEMAN THAT HE INTERFERED WITH FEINER AT A TIME WHEN THE CROWD
WAS "GETTING TO THE POINT WHERE THEY WOULD BE UNRULY."  BUT THIS
TESTIMONY WAS SO PATENTLY INADMISSIBLE THAT IT WAS EXCLUDED BY THE
TRIAL JUDGE IN ONE OF THE RARE INSTANCES WHERE THE DEFENDANT RECEIVED A
FAVORABLE RULING.  SECONDLY, THE COURT OF APPEALS STATED THAT AFTER
FEINER HAD BEEN WARNED BY THE POLICE, HE CONTINUED TO "BLARE OUT HIS
PROVOCATIVE UTTERANCES OVER LOUD SPEAKERS TO A MILLING, RESTLESS THRONG
...  "  I AM UNABLE TO FIND ANYTHING IN THE RECORD TO SUPPORT THIS
STATEMENT UNLESS THE UNSWORN ARGUMENTS OF THE ASSISTANT DISTRICT
ATTORNEY ARE ACCEPTED AS EVIDENCE.  THE PRINCIPAL PROSECUTION WITNESS
TESTIFIED THAT AFTER HE ASKED FEINER TO GET DOWN FROM THE BOX, FEINER
MERELY "KEPT TELLING (THE AUDIENCE) TO GO TO THE SYRACUSE HOTEL AND
HEAR JOHN ROGGE."  AND THIS SAME WITNESS EVEN ANSWERED "NO" TO THE
HIGHLY SUGGESTIVE QUESTION WHICH IMMEDIATELY FOLLOWED, "DID HE SAY
ANYTHING MORE ABOUT ARMING AND FIGHTING AT THAT TIME?"    FN8  CF.
HAGUE V. C.I.O., 307 U.S. 496; TERMINIELLO V. CHICAGO, 337 U.S. 1;
SELLERS V. JOHNSON, 163 F.2D 877; SEE ALSO, SUMMARY OF BRIEF FOR
COMMITTEE ON THE BILL OF RIGHTS OF THE AMERICAN BAR ASSOCIATION AS
AMICUS CURIAE, HAGUE V. C.I.O., SUPRA, REPRINTED AT 307 U.S. 678-682. 

FN9  IN SCHNEIDER V. STATE, 308 U.S. 147, WE HELD THAT A PURPOSE TO
PREVENT LITTERING OF THE STREETS WAS INSUFFICIENT TO JUSTIFY AN
ORDINANCE WHICH PROHIBITED A PERSON LAWFULLY ON THE STREET FROM HANDING
LITERATURE TO ONE WILLING TO RECEIVE IT.  WE SAID AT PAGE 162, "THERE
ARE OBVIOUS METHODS OF PREVENTING LITTERING.  AMONGST THESE IS THE
PUNISHMENT OF THOSE WHO ACTUALLY THROW PAPERS ON THE STREETS."  IN THE
PRESENT CASE AS WELL, THE THREAT OF ONE PERSON TO ASSAULT A SPEAKER
DOES NOT JUSTIFY SUPPRESSION OF THE SPEECH.  THERE ARE OBVIOUS
AVAILABLE ALTERNATIVE METHODS OF PRESERVING PUBLIC ORDER.  ONE OF THESE
IS TO ARREST THE PERSON WHO THREATENS AN ASSAULT.  CF. DEAN MILK CO. V.
MADISON, 340 U.S. 349, DECIDED TODAY, IN WHICH THE COURT INVALIDATES A
MUNICIPAL HEALTH ORDINANCE UNDER THE COMMERCE CLAUSE BECAUSE OF A
BELIEF THAT THE CITY COULD HAVE ACCOMPLISHED ITS PURPOSES BY REASONABLY
ADEQUATE ALTERNATIVES.  THE COURT CERTAINLY SHOULD NOT BE LESS ALERT TO
PROTECT FREEDOM OF SPEECH THAN IT IS TO PROTECT FREEDOM OF TRADE. 

FN10  TODAY THE COURT CHARACTERIZES PETITIONER'S SPEECH AS ONE
DESIGNED TO INCITE RIOT AND APPROVES SUPPRESSION OF HIS VIEWS.  THERE
IS AN ALARMING SIMILARITY BETWEEN THE POWER THUS POSSESSED BY THE
SYRACUSE (OR ANY OTHER) POLICE AND THAT POSSESSED BY ENGLISH OFFICIALS
UNDER AN ACT PASSED BY PARLIAMENT IN 1795.  IN THAT YEAR JUSTICES OF
THE PEACE WERE AUTHORIZED TO ARREST PERSONS WHO SPOKE IN A MANNER WHICH
COULD BE CHARACTERIZED AS "INCITING AND STIRRING UP THE PEOPLE TO
HATRED OR CONTEMPT  ...  " OF THE KING OR THE GOVERNMENT.  36 GEO. III,
C. 8, SEC. 7.  THIS STATUTE "WAS MANIFESTLY INTENDED TO PUT AN END FOR
EVER TO ALL POPULAR DISCUSSIONS EITHER ON POLITICAL OR RELIGIOUS
MATTERS."  1 BUCKLE, HISTORY OF CIVILIZATION IN ENGLAND (2D LONDON
ED.)  350. 

FN11  THAT PETITIONER AND THE PHILOSOPHY HE ESPOUSED WERE OBJECTS OF
LOCAL ANTAGONISM APPEARS CLEARLY FROM THE PRINTED RECORD IN THIS CASE. 
EVEN THE TRIAL JUDGE IN HIS DECISION MADE NO ATTEMPT TO CONCEAL HIS
CONTEMPT FOR PETITIONER'S VIEWS.  HE SEEMED OUTRAGED BY PETITIONER'S
CRITICISM OF PUBLIC OFFICIALS AND THE AMERICAN LEGION.  MOREOVER, THE
JUDGE GRATUITOUSLY EXPRESSED DISAPPROVAL OF O. JOHN ROGGE BY QUOTING
DEROGATORY STATEMENTS CONCERNING MR. ROGGE WHICH HAD APPEARED IN THE
SYRACUSE PRESS.  THE COURT APPROVED THE VIEW THAT FREEDOM OF SPEECH
SHOULD BE DENIED THOSE WHO PIT "CLASS AGAINST CLASS  ...  AND RELIGION
AGAINST RELIGION."  AND AFTER ANNOUNCING ITS DECISION, THE COURT
PERSISTENTLY REFUSED TO GRANT BAIL PENDING SENTENCE. 

ALTHOUGH IT IS UNNECESSARY FOR ME TO REACH THE QUESTION OF WHETHER
THE TRIAL BELOW MET PROCEDURAL DUE PROCESS STANDARDS, I CANNOT AGREE
WITH THE OPINION OF THE COURT THAT "PETITIONER WAS ACCORDED A FULL,
FAIR TRIAL." 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MINTON CONCURS,
DISSENTING. 

FEINER, A UNIVERSITY STUDENT, MADE A SPEECH ON A STREET CORNER IN
SYRACUSE, NEW YORK, ON MARCH 8, 1949.  THE PURPOSE OF THE SPEECH WAS TO
PUBLICIZE A MEETING OF THE YOUNG PROGRESSIVES OF AMERICA TO BE HELD
THAT EVENING.  A PERMIT AUTHORIZING THE MEETING TO BE HELD IN A PUBLIC
SCHOOL AUDITORIUM HAD BEEN REVOKED AND THE MEETING SHIFTED TO A LOCAL
HOTEL. 

FEINER DELIVERED HIS SPEECH IN A SMALL SHOPPING AREA IN A
PREDOMINANTLY COLORED RESIDENTIAL SECTION OF SYRACUSE.  HE STOOD ON A
LARGE BOX AND SPOKE OVER LOUDSPEAKERS MOUNTED ON A CAR.  HIS AUDIENCE
WAS COMPOSED OF ABOUT 75 PEOPLE, COLORED AND WHITE.  A FEW MINUTES
AFTER HE STARTED TWO POLICE OFFICERS ARRIVED. 

THE SPEECH WAS MAINLY DEVOTED TO PUBLICIZING THE EVENING'S MEETING
AND PROTESTING THE REVOCATION OF THE PERMIT.  IT ALSO TOUCHED ON
VARIOUS PUBLIC ISSUES.  THE FOLLOWING ARE THE ONLY EXCERPTS REVEALED BY
THE RECORD: 

"MAYOR COSTELLO (OF SYRACUSE) IS A CHAMPAGNE-SIPPING BUM; HE DOES NOT
SPEAK FOR THE NEGRO PEOPLE." 

"THE 15TH WARD IS RUN BY CORRUPT POLITICIANS, AND THERE ARE HORSE
ROOMS OPERATING THERE." 

"PRESIDENT TRUMAN IS A BUM." 

"MAYOR O'DWYER IS A BUM." 

"THE AMERICAN LEGION IS A NAZI GESTAPO." 

"THE NEGROES DON'T HAVE EQUAL RIGHTS; THEY SHOULD RISE UP IN ARMS AND
FIGHT FOR THEIR RIGHTS." 

THERE WAS SOME PUSHING AND SHOVING IN THE CROWD AND SOME ANGRY
MUTTERING.  THAT IS THE TESTIMONY OF THE POLICE.  BUT THERE WERE NO
FIGHTS AND NO "DISORDER" EVEN BY THE STANDARDS OF THE POLICE.  THERE
WAS NOT EVEN ANY HECKLING OF THE SPEAKER. 

BUT AFTER FEINER HAD BEEN SPEAKING ABOUT 20 MINUTES A MAN SAID TO THE
POLICE OFFICERS, "IF YOU DON'T GET THAT SON OF A BITCH OFF, I WILL GO
OVER AND GET HIM OFF THERE MYSELF."  IT WAS THEN THAT THE POLICE
ORDERED FEINER TO STOP SPEAKING; WHEN HE REFUSED, THEY ARRESTED HIM. 

PUBLIC ASSEMBLIES AND PUBLIC SPEECH OCCUPY AN IMPORTANT ROLE IN
AMERICAN LIFE.  ONE HIGH FUNCTION OF THE POLICE IS TO PROTECT THESE
LAWFUL GATHERINGS SO THAT THE SPEAKERS MAY EXERCISE THEIR
CONSTITUTIONAL RIGHTS.  WHEN UNPOPULAR CAUSES ARE SPONSORED FROM THE
PUBLIC PLATFORM, THERE WILL COMMONLY BE MUTTERINGS AND UNREST AND
HECKLING FROM THE CROWD.  WHEN A SPEAKER MOUNTS A PLATFORM IT IS NOT
UNUSUAL TO FIND HIM RESORTING TO EXAGGERATION, TO VILIFICATION OF IDEAS
AND MEN, TO THE MAKING OF FALSE CHARGES.  BUT THOSE EXTRAVAGANCES, AS
WE EMPHASIZED IN CANTWELL V. CONNECTICUT, 310 U.S. 296, DO NOT JUSTIFY
PENALIZING THE SPEAKER BY DEPRIVING HIM OF THE PLATFORM OR BY PUNISHING
HIM FOR HIS CONDUCT. 

A SPEAKER MAY NOT, OF COURSE, INCITE A RIOT ANY MORE THAN HE MAY
INCITE A BREACH OF THE PEACE BY THE USE OF "FIGHTING WORDS."  SEE
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568.  BUT THIS RECORD SHOWS NO
SUCH EXTREMES.  IT SHOWS AN UNSYMPATHETIC AUDIENCE AND THE THREAT OF
ONE MAN TO HAUL THE SPEAKER FROM THE STAGE.  IT IS AGAINST THAT KIND OF
THREAT THAT SPEAKERS NEED POLICE PROTECTION.  IF THEY DO NOT RECEIVE IT
AND INSTEAD THE POLICE THROW THEIR WEIGHT ON THE SIDE OF THOSE WHO
WOULD BREAK UP THE MEETINGS, THE POLICE BECOME THE NEW CENSORS OF
SPEECH.  POLICE CENSORSHIP HAS ALL THE VICES OF THE CENSORSHIP FROM
CITY HALLS WHICH WE HAVE REPEATEDY STRUCK DOWN.  SEE LOVELL V. CITY OF
GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O., 307 U.S. 496; CANTWELL V.
CONNECTICUT, SUPRA; MURDOCK V. PENNSYLVANIA, 319 U.S. 105; SAIA V. NEW
YORK, 334 U.S. 558. 
..END :
























BLAU V. UNITED STATES, 340 U.S. 332 


NO. 21.  ARGUED NOVEMBER 7, 1950.  - DECIDED JANUARY 15, 1951.  - 179
F.2D 559, REVERSED. 


PETITIONER, A WITNESS BEFORE A FEDERAL GRAND JURY IN RESPONSE TO A
SUMMONS, DECLINED TO ANSWER QUESTIONS CONCERNING ACTIVITIES AND RECORDS
OF THE COMMUNIST PARTY IN COLORADO, CLAIMING HIS CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION.  ASSERTING HIS PRIVILEGE AGAINST
DISCLOSING CONFIDENTIAL COMMUNICATIONS BETWEEN HUSBAND AND WIFE, HE
ALSO REFUSED TO REVEAL THE WHEREABOUTS OF HIS WIFE, WHO WAS WANTED BY
THE GRAND JURY AS A WITNESS IN CONNECTION WITH THE SAME INVESTIGATION. 
IT WAS UNDISPUTED THAT HE OBTAINED HIS KNOWLEDGE OF HIS WIFE'S
WHEREABOUTS BY COMMUNICATION FROM HER.  THE DISTRICT COURT OVERRULED
BOTH CLAIMS OF PRIVILEGE AND SENTENCED PETITIONER TO IMPRISONMENT FOR
CONTEMPT OF COURT.  HELD: 

1.  FAILURE TO SUSTAIN PETITIONER'S CLAIM OF PRIVILEGE AGAINST SELF
INCRIMINATION WAS ERROR.  BLAU V. UNITED STATES, 340 U.S. 159.  P.
333. 

2.  PETITIONER WAS ENTITLED TO RELY ON HIS PRIVILEGE AGAINST
DISCLOSING CONFIDENTIAL COMMUNICATIONS BETWEEN HUSBAND AND WIFE BECAUSE
THE GOVERNMENT FAILED TO OVERCOME THE PRESUMPTION THAT THE
COMMUNICATIONS WERE CONFIDENTIAL.  PP. 333-334. 

BLAU V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

THE DISTRICT COURT SENTENCED PETITIONER TO IMPRISONMENT FOR CONTEMPT
OF COURT, FOR REFUSING TO ANSWER QUESTIONS BEFORE A FEDERAL GRAND
JURY.  THE COURT OF APPEALS AFFIRMED.  179 F.2D 559.  THIS COURT
GRANTED CERTIORARI.  339 U.S. 956.  REVERSED, P. 334. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS SUMMONED TO APPEAR BEFORE A FEDERAL DISTRICT GRAND
JURY IN DENVER, COLORADO.  BOTH BEFORE THAT BODY AND BEFORE THE
DISTRICT JUDGE WHERE HE WAS LATER TAKEN, PETITIONER DECLINED TO ANSWER
QUESTIONS CONCERNING THE ACTIVITIES AND RECORDS OF THE COMMUNIST PARTY
OF COLORADO, CLAIMING HIS CONSTITUTIONAL PRIVILEGE AGAINST
SELFINCRIMINATION.  HE ALSO REFUSED TO REVEAL THE WHEREABOUTS OF HIS
WIFE, WHO WAS WANTED BY THE GRAND JURY AS A WITNESS IN CONNECTION WITH
THE SAME INVESTIGATION.  AS TO THIS REFUSAL TO TESTIFY, PETITIONER
ASSERTED HIS PRIVILEGE AGAINST DISCLOSING CONFIDENTIAL COMMUNICATIONS
BETWEEN HUSBAND AND WIFE.  THE DISTRICT JUDGE OVERRULED BOTH CLAIMS OF
PRIVILEGE AND SENTENCED PETITIONER TO SIX MONTHS IN PRISON FOR CONTEMPT
OF COURT.  THE COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED.  179
F.2D 559. 

FOR THE REASONS SET OUT IN OUR RECENT OPINION IN PATRICIA BLAU V.
UNITED STATES, 340 U.S. 159, WE HOLD IT WAS ERROR TO FAIL TO SUSTAIN
THE CLAIM OF PRIVILEGE AGAINST SELF-INCRIMINATION. 

THIS LEAVES FOR CONSIDERATION THE VALIDITY OF THE SENTENCE INSOFAR AS
IT RESTS ON THE FAILURE OF PETITIONER TO DISCLOSE THE WHEREABOUTS OF
HIS WIFE.  IN WOLFLE V. UNITED STATES, 291 U.S. 7, THIS COURT
RECOGNIZED THAT A CONFIDENTIAL COMMUNICATION BETWEEN HUSBAND AND WIFE
WAS PRIVILEGED.  IT IS NOT DISPUTED IN THE PRESENT CASE THAT PETITIONER
OBTAINED HIS KNOWLEDGE AS TO WHERE HIS WIFE WAS BY COMMUNICATION FROM
HER.  NEVERTHELESS, THE GOVERNMENT INSISTS THAT HE SHOULD BE DENIED THE
BENEFIT OF THE PRIVILEGE BECAUSE HE FAILED TO PROVE THAT THE
INFORMATION WAS PRIVATELY CONVEYED.  THIS CONTENTION IGNORES THE RULE
THAT MARITAL COMMUNICATIONS ARE PRESUMPTIVELY CONFIDENTIAL.  WOLFLE V.
UNITED STATES, SUPRA, AT 14; WIGMORE, EVIDENCE, SEC. 2336.  THE
GOVERNMENT MADE NO EFFORT TO OVERCOME THE PRESUMPTION.  IN THIS CASE,
MOREOVER, THE COMMUNICATION TO PETITIONER WAS OF THE KIND LIKELY TO BE
CONFIDENTIAL.  PETITIONER'S WIFE, ACCORDING TO THE DISTRICT JUDGE, KNEW
THAT SHE AND A NUMBER OF OTHERS WERE "WANTED" AS WITNESSES BY THE GRAND
JURY BUT SHE "HID OUT, APPARENTLY SO THAT THE PROCESS  ...  COULD NOT
BE SERVED UPON HER."  FN1  SEVERAL OF THE WITNESSES WHO APPEARED WERE
PUT IN JAIL FOR CONTEMPT OF COURT.  UNDER SUCH CIRCUMSTANCES, IT SEEMS
HIGHLY PROBABLE THAT MRS. BLAU SECRETLY TOLD HER HUSBAND WHERE SHE
COULD BE FOUND.  PETITIONER'S REFUSAL TO BETRAY HIS WIFE'S TRUST
THEREFORE WAS BOTH UNDERSTANDABLE AND LAWFUL.  WE HAVE NO DOUBT THAT HE
WAS ENTITLED TO CLAIM HIS PRIVILEGE.  FN2  REVERSED. 

FN1  PETITIONER'S WIFE, WHEN APPREHENDED, WAS SENTENCED TO ONE YEAR'S
IMPRISONMENT FOR CONTEMPT, PATRICIA BLAU V. UNITED STATES, SUPRA,
ALTHOUGH OTHER WITNESSES WHO REFUSED TO TESTIFY RECEIVED SHORTER
SENTENCES.  IN SENTENCING MRS. BLAU, THE JUDGE STATED:  "I HAVEN'T MUCH
SYMPATHY FOR THIS LADY BECAUSE, AS I SAID, SHE DEFIED THE COURT BY
AVOIDING THE PROCESS OF THE COURT WHEN SHE KNEW VERY WELL THAT SHE WAS
WANTED HERE, AND YET SHE HID OUT, APPARENTLY SO THAT THE PROCESS OF
THIS COURT COULD NOT BE SERVED UPON HER." 

FN2  IN VIEW OF OUR DECISION ON THIS PHASE OF THE CASE, IT IS
UNNECESSARY TO REACH THE QUESTION WHETHER THE SINGLE CONVICTION FOR
CONTEMPT (WHICH WAS BASED ON THE REFUSAL TO GIVE INCRIMINATING
TESTIMONY AND ON THE REFUSAL TO REVEAL A CONFIDENTIAL MARITAL
COMMUNICATION) WOULD BE VALID IF PETITIONER WERE ENTITLED TO CLAIM ONE,
BUT NOT BOTH, OF THE PRIVILEGES. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

IF A COMMUNICATION BETWEEN HUSBAND AND WIFE IS MADE UNDER
CIRCUMSTANCES OBVIOUSLY NOT INTENDED TO BE CONFIDENTIAL, IT IS NOT
PRIVILEGED.  WOLFLE V. UNITED STATES, 291 U.S. 7, 14. 

WHERE THE PRIVILEGE SUPPRESSES RELEVANT TESTIMONY, AS IT DID HERE, IT
SHOULD "BE ALLOWED ONLY WHEN IT IS PLAIN THAT MARITAL CONFIDENCE CAN
NOT OTHERWISE REASONABLY BE PRESERVED."  ID., AT 17. 

UNLESS THE WIFE IS IN CONCEALMENT, WHICH DOES NOT APPEAR TO BE THE
CASE HERE, THE DISCLOSURE OF HER WHEREABOUTS TO THE HUSBAND IS
OBVIOUSLY NOT INTENDED TO BE CONFIDENTIAL AND THEREFORE IS NOT
PRIVILEGED.  NOT EVERY COMMUNICATION BETWEEN HUSBAND AND WIFE IS
BLESSED WITH THE PRIVILEGE.  THE GENERAL RULE OF EVIDENCE IS
COMPETENCY.  INCOMPETENCY IS THE EXCEPTION, AND TO BRING ONE WITHIN THE
EXCEPTION, ONE MUST COME WITHIN THE REASON FOR THE EXCEPTION.  THE
REASON HERE IS PROTECTION OF MARITAL CONFIDENCE, NOT MERELY OF
COMMUNICATION BETWEEN SPOUSES.  IT SEEMS TO ME CLEAR THAT ALL THAT IS
SHOWN HERE IS COMMUNICATION.  THE CIRCUMSTANCES OF CONFIDENCE ARE
ABSENT; WHAT ALL MAY KNOW IS CERTAINLY NOT CONFIDENTIAL. 

FOR REFUSAL TO DIVULGE HIS WIFE'S WHEREABOUTS, PETITIONER WAS IN
CONTEMPT.  SINCE THE SENTENCE HE RECEIVED WAS SUCH AS HE MIGHT HAVE
RECEIVED FOR THAT SINGLE ACT OF CONTEMPT, HIS CONVICTION IS VALID.  CF.
PINKERTON V. UNITED STATES, 328 U.S. 640, 641, N. 1; HIRABAYASHI V.
UNITED STATES, 320 U.S. 81, 85.  IF PETITIONER CONCEIVED HIS SENTENCE
TO BE ILLEGAL, HE WOULD NOT BE WITHOUT REMEDY, FOR HE MIGHT SEEK A
REDUCTION THEREOF ON REMAND OF THIS CASE UNDER RULE 35 OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE.  I INTIMATE NOTHING AS TO THAT ISSUE. 

I WOULD AFFIRM THE CONVICTION. 
..END :









NIAGARA HUDSON CORP. V. LEVENTRITT, 340 U.S. 336 


ARGUED DECEMBER 5, 1950.  - DECIDED JANUARY 15, 1951.  - 179 F.2D 615,
REVERSED. 


THE SECURITIES AND EXCHANGE COMMISSION APPROVED A PLAN OF
REORGANIZATION AS "FAIR AND EQUITABLE" WITHIN THE MEANING OF SEC. 11 OF
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, ALTHOUGH THE PLAN MADE
NO PROVISION FOR PARTICIPATION OF OUTSTANDING STOCK OPTION WARRANTS
RELATING TO COMMON STOCK OF THE COMPANY TO BE REORGANIZED.  THE
WARRANTS REPRESENTED OPTIONS TO PURCHASE, AT ANY TIME, FOR A SPECIFIED
PRICE, SHARES OF THE COMPANY'S COMMON STOCK.  THE COMMISSION FOUND THAT
THERE WAS NO REASONABLE EXPECTATION, WITHIN THE FORESEEABLE FUTURE,
THAT THE MARKET PRICE OF THE COMMON STOCK WOULD EXCEED THE EXERCISE
PRICE OF THE WARRANTS, AND THAT, UPON CONSIDERATION OF ALL THE
CIRCUMSTANCES, THERE WAS NO JUSTIFICATION FOR RECOGNIZING ANY PRESENT
VALUE IN THE WARRANTS AT THE EXPENSE OF THE COMMON STOCK.  HELD:  THE
DISTRICT COURT PROPERLY ORDERED ENFORCEMENT OF THE PLAN.  PP. 338-348. 

1.  THE FACT THAT THE PLAN PROVIDES FOR NO PARTICIPATION BY THE
OUTSTANDING WARRANTS DESPITE THEIR CONCEDED, BUT LOW, MARKET VALUE DOES
NOT PRECLUDE THE COMMISSION, AS A MATTER OF LAW, FROM CONCLUDING THAT
THE PLAN IS "FAIR AND EQUITABLE" WITHIN THE MEANING OF SEC. 11(E) OF
THE ACT WHEN INFORMED ESTIMATES OF FUTURE EARNINGS INDICATE THAT THEY
HAVE NO INVESTMENT VALUE.  PP. 340-348. 

2.  THE FACT THAT THE OPTIONS IN THE WARRANTS WERE EXERCISABLE "AT
ANY TIME (WITHOUT LIMIT)" AND THUS HAD A "PERPETUAL FEATURE" DID NOT
REQUIRE THAT THE COMMISSION, AS A MATTER OF LAW, RECOGNIZE SOME PRESENT
VALUE IN THE WARRANTS.  PP. 344-345. 

3.  THE FACT THAT A PURCHASER MAY BE WILLING TO PAY A NOMINAL PRICE
FOR A WARRANT WHICH HAS NO INVESTMENT VALUE, ON THE MERE CHANCE THAT IT
MAY BE SALEABLE IN A RISING MARKET, IS NOT AN ADEQUATE BASIS FOR
ALLOWING A VALUE TO THE WARRANTS, AT THE EXPENSE OF THE COMMON STOCK,
IN A REORGANIZATION UNDER THE ACT.  PP. 345-346. 

4.  IN DETERMINING THE FAIRNESS AND EQUITY OF COMPENSATION TO BE
ALLOWED HOLDERS OF WARRANTS, THE COMMISSION IS NOT BOUND AS A MATTER OF
LAW, ANY MORE THAN IN THE CASE OF OTHER SECURITIES, TO LIMIT ITSELF
PRECISELY TO THE VALUES WHICH THE MARKET RECOGNIZES.  P. 346. 

5.  THE INFORMED JUDGMENT OF THE COMMISSION, RATHER THAN THAT OF THE
MARKET, IS THE APPROPRIATE GUIDE TO FAIRNESS AND EQUITY UNDER THE ACT;
AND THAT INFORMED JUDGMENT LOOKS FOR INVESTMENT VALUES ON A GOING
CONCERN BASIS MEASURED PRIMARILY BY THE COMMISSION'S ESTIMATE OF
EARNINGS WITHIN THE FORESEEABLE FUTURE.  PP. 346-347. 

6.  IN THE ABSENCE OF ABUSE OF ITS DISCRETION, THE COMMISSION'S
APPROVAL OF A PLAN IS AS LAWFUL AND BINDING WHEN IT RECOGNIZES A VALUE
OF ZERO FOR A SECURITY AS WHEN IT SELECTS ANY OTHER FIGURE.  P. 347. 

7.  IN THIS CASE THE ACT DOES NOT REQUIRE PROOF THAT THE WARRANTS ARE
WHOLLY WORTHLESS AND WITHOUT ANY MARKET VALUE IN ORDER TO SUSTAIN THE
COMMISSION'S JUDGMENT THAT THE PLAN IS "FAIR AND EQUITABLE" THOUGH
DENYING THEM PARTICIPATION.  IT IS ENOUGH THAT THE COMMISSION, WITHIN
ITS DISCRETION, HAS GIVEN THE WARRANTS CAREFUL CONSIDERATION, AND,
UNDER ALL THE CIRCUMSTANCES, INCLUDING THE MARKET VALUE OF THE
WARRANTS, HAS FOUND THE PLAN TO BE "FAIR AND EQUITABLE" WITHIN THE
MEANING OF SEC. 11 OF THE ACT.  P. 347. 

NIAGARA HUDSON POWER CORP. V. LEVENTRITT. 

NO. 211.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT* . 

*TOGETHER WITH NO. 212, SECURITIES & EXCHANGE COMMISSION V.
LEVENTRITT, ALSO ON CERTIORARI TO THE SAME COURT. 

THE DISTRICT COURT ORDERED ENFORCED A PLAN OF REORGANIZATION APPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION UNDER THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935.  86 F.SUPP.  697.  THE COURT OF APPEALS
REVERSED THAT PART OF THE ORDER RELATING TO STOCK OPTION WARRANTS, AND
REMANDED THE CAUSE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.  179
F.2D 615.  THIS COURT GRANTED CERTIORARI.  340 U.S. 809.  REVERSED, P.
348. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THESE CASES TEST THE VALIDITY OF THE SECURITIES AND EXCHANGE
COMMISSION'S FINDING THAT A PLAN OF REORGANIZATION IS "FAIR AND
EQUITABLE" WITHIN THE MEANING OF SEC. 11 OF THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935,  FN1  ALTHOUGH THE PLAN MAKES NO PROVISION FOR THE
PARTICIPATION OF OUTSTANDING STOCK OPTION WARRANTS RELATING TO THE
COMMON STOCK OF THE COMPANY TO BE REORGANIZED.  THE BASIS FOR THE
COMMISSION'S CONCLUSION IS THAT IT CANNOT FIND THAT THERE IS A
REASONABLE EXPECTATION, WITHIN THE FORESEEABLE FUTURE, THAT THE MARKET
PRICE OF THE COMMON STOCK WILL EXCEED THE EXERCISE PRICE OF THE
WARRANTS AND THAT, UPON CONSIDERATION OF ALL THE CIRCUMSTANCES,
INCLUDING THE MARKET FOR THE WARRANTS, THE COMMISSION CANNOT FIND
JUSTIFICATION FOR RECOGNIZING ANY PRESENT VALUE IN THE WARRANTS AT THE
EXPENSE OF THE COMMON STOCK.  FOR THE REASONS HEREINAFTER STATED, WE
SUSTAIN THE COMMISSION. 

THE NIAGARA HUDSON POWER CORPORATION, PETITIONER IN NO. 211, IS A
REGISTERED PUBLIC UTILITY HOLDING COMPANY, INCORPORATED UNDER THE LAWS
OF NEW YORK, WHOSE DISSOLUTION IS CONTEMPLATED UNDER THE
REORGANIZATION.  FN2  IT HAS OUTSTANDING NOTES IN THE AMOUNT OF
$20,000,000; 378,875 SHARES OF FIRST PREFERRED STOCK, OF $100 PAR
VALUE; 105,930 SHARES OF SECOND PREFERRED STOCK, OF $100 PAR VALUE;
9,580,988 1/2 SHARES OF COMMON STOCK, OF $1 PAR VALUE; AND CLASS B
STOCK OPTION WARRANTS.  THE WARRANTS REPRESENT OPTIONS TO PURCHASE, AT
ANY TIME, UP TO 497,191 3/6 SHARES OF COMMON STOCK, EACH WARRANT
ENTITLING THE HOLDER TO SUBSCRIBE TO 1 1/6 SHARES OF COMMON STOCK UPON
PAYMENT OF $50, WHICH IS AT THE RATE OF APPROXIMATELY $42.86 PER
SHARE.  FN3 

THE PROPOSED REORGANIZATION INCLUDES A DISSOLUTION PLAN WHICH IS
CONDITIONED UPON THE CONSUMMATION OF A CONSOLIDATION PLAN, NOW
CONSUMMATED.  THE COMMISSION FOUND BOTH PLANS TO BE "NECESSARY TO
EFFECTUATE THE PROVISIONS OF SECTION 11(B)(2) OF THE ACT (SEC. 15
U.S.C. SEC. 79K (B)(2)) AND FAIR AND EQUITABLE TO THE PERSONS AFFECTED
THEREBY  ...  "  HOLDING COMPANY ACT RELEASES NO. 9270, PP. 1, 57; NO.
9295, P. 2.  OVER AN OBJECTION MADE BY THE RESPONDENT, M. VICTOR
LEVENTRITT, AS A WARRANT HOLDER, THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF NEW YORK APPROVED THE PLANS AND ORDERED THEM
ENFORCED.  86 F.SUPP.  697.  ON APPEAL BY THE RESPONDENT, THE COURT OF
APPEALS FOR THE SECOND CIRCUIT REVERSED THAT PART OF THE ORDER WHICH
RELATES TO THE WARRANTS, AND REMANDED THE CAUSE TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS.  179 F.2D 615.  A REHEARING WAS DENIED, ONE
JUDGE DISSENTING.  THE COURT OF APPEALS FOR THE THIRD CIRCUIT
THEREAFTER REACHED A SUBSTANTIALLY CONTRARY RESULT IN IN RE
COMMONWEALTH & SOUTHERN CORP., 184 F.2D 81.  BECAUSE OF THE CONFLICTING
NATURE OF THE DECISIONS IN THE COURTS OF APPEALS AND THE IMPORTANCE OF
THE ISSUE IN THE APPLICATION OF THE PUBLIC UTILITY HOLDING COMPANY ACT,
WE GRANTED THE PETITIONS FOR CERTIORARI FILED SEPARATELY BY THE COMPANY
IN NO. 211 AND THE COMMISSION IN NO. 212.  340 U.S. 809. 

AT EVERY STAGE OF THIS PROCEEDING OPPORTUNITY HAS BEEN AFFORDED THE
HOLDERS OF THE WARRANTS TO PRESENT THEIR CLAIMS AND THEY HAVE BEEN
FULLY PRESENTED.  RESPONDENT HAS NOT, HOWEVER, BROUGHT UP THE RECORD
WHICH WAS MADE BEFORE THE COMMISSION AND CANNOT QUESTION THE
SUFFICIENCY OF THE EVIDENCE IN SUPPORT OF THE COMMISSION'S FINDINGS AS
TO THE INTRINSIC OR INVESTMENT VALUE OF THE COMMON STOCK OR AS TO THAT
OF THE WARRANTS BASED ON THE LIKELIHOOD OF THEIR EXERCISE WITHIN THE
FORESEEABLE FUTURE.  FN4  THE APPEAL ATTACKS THE AUTHORITY OF THE
COMMISSION, AS A MATTER OF LAW, TO CONCLUDE THAT, UNDER THE
CIRCUMSTANCES FOUND BY IT, THE DISSOLUTION PLAN IS "FAIR AND EQUITABLE"
WITHIN THE MEANING OF SEC. 11(E) OF THE ACT, WHERE THE PLAN PROVIDES
FOR NO PARTICIPATION BY THE OUTSTANDING WARRANTS DESPITE THEIR
CONCEDED, BUT LOW, MARKET VALUE.  THE COURT OF APPEALS SUSTAINED THAT
ATTACK AND SAID:  "WE CANNOT AGREE THAT THERE WAS ANY EVIDENCE
'SUBSTANTIAL' OR INSUBSTANTIAL TO SUPPORT THE FINDING THAT THESE
'WARRANTS' WERE WHOLLY WORTHLESS."  179 F.2D AT 618. 

THE COMMISSION'S ANSWER TO THE ATTACK IS THAT, WITHIN THE MEANING OF
SEC. 11(E) OF THIS ACT, IT HAS DISCRETION TO APPROVE A PLAN AS "FAIR
AND EQUITABLE TO THE PERSONS AFFECTED BY SUCH PLAN," WITHOUT PROVIDING
FOR THE PARTICIPATION OF THE HOLDERS OF ANY SECURITY THAT HAS NO
RECOGNIZABLE INTRINSIC OR INVESTMENT VALUE, ALTHOUGH IT MAY HAVE A
MARKET VALUE WHICH THE COMMISSION CONSIDERS TOO SMALL "AS A PRACTICAL
MATTER" TO BE RECOGNIZED.  THE COMMISSION STATED ITS CONCLUSIONS IN ITS
ORIGINAL ORDER AS FOLLOWS:

           "5.  FAIRNESS TO THE HOLDERS OF THE CLASS B STOCK

                   OPTION WARRANTS OF NIAGARA HUDSON 

"UNDER THE PLANS, NO PROVISION IS MADE FOR PARTICIPATION OF THE CLASS
B STOCK OPTION WARRANTS OF NIAGARA HUDSON AND ALL RIGHTS REPRESENTED BY
SUCH WARRANTS WILL TERMINATE UPON THE DISSOLUTION OF THAT COMPANY. 

"THE OPTION WARRANTS ENTITLE THEIR HOLDERS TO PURCHASE AT ANY TIME
497,191 3/6 SHARES OF NIAGARA HUDSON COMMON STOCK, EACH WARRANT
ENTITLING THE HOLDER TO 1 1/6 SHARES UPON PAYMENT OF $50.  THIS IS
EQUIVALENT TO AN EXERCISE PRICE OF $42.86 FOR ONE SHARE.  SINCE 1932,
THE NIAGARA HUDSON OR PREDECESSOR COMPANY COMMON STOCK HAS NEVER SOLD
AT A PRICE HIGHER THAN 18 1/4 AND HAS SOLD AS LOW AS 7/8.  DURING THE
SAME PERIOD, THE OPTION WARRANTS HAVE NEVER SOLD HIGHER THAN 5 AND HAVE
BEEN AS LOW AS 1/8.  (APPENDIX F ATTACHED TO THE COMMISSION'S OPINION
SHOWS THAT IN 1943 THEY DROPPED FURTHER TO 1/16, AND IN 1941 AND 1942
TO 1/32.)  IN 1948, THE PRICES FOR THE OPTION WARRANTS RANGED FROM A
HIGH OF 1 TO A LOW OF 1/8, AND IN 1949, FROM A HIGH OF 1/4 TO A LOW OF
1/8. 

"IN CONSIDERING THE PARTICIPATION TO WHICH OPTION WARRANT HOLDERS MAY
BE ENTITLED, THE TEST IS BASICALLY THE SAME AS THAT APPLIED WITH
RESPECT TO THE OTHER TYPES OF SECURITIES, THAT IS, WHAT VALUE, IF ANY,
IS BEING GIVEN UP BY THE SURRENDER OF THE RIGHTS ATTACHING TO THAT
SECURITY.  THE PRICE OF $42.86, WHICH A HOLDER OF AN OPTION WARRANT
WOULD HAVE TO PAY FOR ONE SHARE OF NIAGARA HUDSON COMMON STOCK, IS MORE
THAN 30 TIMES THE ESTIMATE WE HAVE USED OF $1.39 AS FORESEEABLE
EARNINGS WHICH WOULD BE APPLICABLE TO THAT STOCK ON THE BASIS OF
PRESENT INVESTMENT IF NIAGARA HUDSON WERE TO CONTINUE.  THAT PRICE IS
ABOUT 3.5 TIMES THE RECENT HIGH MARKET PRICES FOR THE NIAGARA HUDSON
COMMON STOCK OF AROUND 12 PER SHARE. 

"IF WE WERE TO ASSUME THAT NIAGARA HUDSON WERE TO CONTINUE AND ITS
COMMON STOCK WERE TO SELL IN THE FUTURE AT A RATIO OF 15 TIMES
CONSOLIDATED EARNINGS, WHICH WOULD APPEAR TO BE A VERY LIBERAL
ASSUMPTION, IT WOULD REQUIRE PER SHARE EARNINGS OF $2.86 TO RESULT IN A
PRICE OF $42.86 PER SHARE.  SUCH EARNINGS WOULD REPRESENT AN INCREASE
OF 106% OVER THE APPROXIMATELY $1.39 OF EARNINGS WHICH WE HAVE FOUND
ATTRIBUTABLE TO THE PRESENT INVESTMENT.  ON THE BASIS OF THE MORE
LIKELY ASSUMPTION THAT THE PRICE-EARNINGS RATIO AT WHICH THE NIAGARA
HUDSON COMMON STOCK WOULD SELL WOULD BE SOMETHING LESS THAN 15 TIMES,
AN EVEN GREATER INCREASE IN EARNINGS WOULD BE REQUIRED TO ATTAIN A PER
SHARE PRICE OF $42.86. 

"UNDER ALL THE CIRCUMSTANCES, WE CANNOT FIND THAT THERE IS A
REASONABLE EXPECTATION THAT THE MARKET PRICE OF NIAGARA HUDSON'S COMMON
STOCK WOULD EXCEED THE EXERCISE PRICE OF THE OPTION WARRANTS WITHIN THE
FORESEEABLE FUTURE.  ACCORDINGLY, WE FIND THAT SUCH OPTION WARRANTS
HAVE NO RECOGNIZABLE VALUE  FN59  AND THAT THE PLANS SATISFY THE
STANDARD OF FAIRNESS AND EQUITY WITH RESPECT TO SUCH OPTION WARRANTS IN
EXCLUDING THEM FROM ANY PARTICIPATION IN THE REORGANIZATION OF NIAGARA
HUDSON."  HOLDING COMPANY ACT RELEASE NO. 9270, PP. 46-47. 

IN ITS FOREGOING STATEMENT THE COMMISSION IS CONSISTENT WITH THE
POSITION IT HAS TAKEN AS TO THE PREFERRED AND COMMON STOCK.  IN
ACCORDANCE WITH THE PRINCIPLES ESTABLISHED IN SECURITIES & EXCHANGE
COMM'N V. CENTRAL-ILLINOIS CORP., 338 U.S. 96, AND IN OTIS & CO. V.
SECURITIES & EXCHANGE COMM'N, 323 U.S. 624, IT HAS ESTIMATED FUTURE
EARNINGS AS A GUIDE FOR ITS DETERMINATION OF THE INTRINSIC AND
INVESTMENT VALUE OF THOSE STOCKS.  IT HAS SATISFIED ITSELF THAT THE
HOLDERS OF THEM WILL RECEIVE, IN CASH OR SECURITIES, AN EQUITABLE
EQUIVALENT OF THAT VALUE.  THE COMMISSION'S COMPARABLE DUTY IN RELATION
TO THE WARRANTS IS FIRST TO DETERMINE THE EXTENT TO WHICH THEY REFLECT
THE VALUE OF THE COMMON STOCK UPON WHICH THEY HAVE AN OPTION.  IF, FOR
EXAMPLE, THE MARKET VALUE OF THE COMMON STOCK CLOSELY APPROACHES THE
EXERCISE PRICE STATED IN THE WARRANTS, OR IF THERE IS GROUND FOR A
REASONABLE EXPECTATION THAT THE TWO MAY COINCIDE WITHIN THE FORESEEABLE
FUTURE, THEN THE WARRANTS WOULD HAVE AN INTRINSIC AND INVESTMENT VALUE
DIRECTLY RELATED TO THE COMMON STOCK.  UNDER THOSE CIRCUMSTANCES, WE
ASSUME NO PLAN OF REORGANIZATION WOULD BE FAIR OR EQUITABLE WITHIN THE
MEANING OF SEC. 11(E) OF THE ACT THAT DID NOT RECOGNIZE THAT VALUE AND
PROVIDE AN EQUITABLE EQUIVALENT FOR IT.  FN5 

ON THE OTHER HAND, IF THE MARKET VALUE OF THE COMMON STOCK IS LESS
THAN $15 PER SHARE AND THERE IS NO GROUND FOR A REASONABLE EXPECTATION
THAT, WITHIN THE FORESEEABLE FUTURE, THE VALUE WILL EXCEED $15 PER
SHARE, THEN AN OPTION TO BUY IT AT, FOR EXAMPLE, $1,000 PER SHARE
OBVIOUSLY WOULD BE WORTHLESS IF THE MEASURE OF ITS VALUE DEPENDS ONLY
UPON ITS CONVERTIBILITY INTO COMMON STOCK.  WITH SUCH FACTS, IT IS
DIFFICULT TO SEE HOW THE COMMISSION COULD JUSTIFY EITHER THE
CONTINUANCE OF THE WARRANTS OR ANY COMPENSATION FOR THEM AT THE EXPENSE
OF THE EXISTING COMMON STOCK.  THE DIFFERENCE BETWEEN THE EXAMPLE LAST
GIVEN AND THE FACTS OF THIS CASE IS MERELY ONE OF DEGREE.  WHERE THE
LINE IS TO BE DRAWN IS A MATTER FOR THE EXPERT JUDGMENT OF THE
COMMISSION.  THE LIMITS OF ITS DISCRETION ARE ALSO NARROWED HERE BY THE
FACT THAT THE FUTURE EARNINGS OF A PUBLIC UTILITY COMPANY ARE LIMITED
BY LAW TO A CONSERVATIVE RATE OF RETURN UPON A GOVERNMENTALLY
ASCERTAINED RATE BASE. 

RESPONDENT'S OBJECTION IN THIS CASE IS NOT PRIMARILY TO THE
COMMISSION'S COMPUTATION OF THE INVESTMENT VALUE OF THE WARRANTS
INSOFAR AS THAT VALUE IS BASED UPON THE RELATIONSHIP BETWEEN THEIR
EXERCISE PRICE AND THE VALUE OF THE COMMON STOCK.  HIS CLAIM IS RATHER
THAT THE COMMISSION MUST, AS A MATTER OF LAW, GIVE GREATER RECOGNITION
THAN IT HAS TO THE MARKET VALUE OF THE WARRANTS THEMSELVES.  HE
CONTENDS THAT THE WARRANTS HAVE A VALUABLE "PERPETUAL FEATURE" BECAUSE
THE OPTIONS IN THE WARRANTS MAY BE EXERCISED "AT ANY TIME (WITHOUT
LIMIT)."  FROM THIS PREMISE HE REASONS THAT THE COMMISSION, AS A MATTER
OF LAW, MUST RECOGNIZE SOME PRESENT VALUE IN THE WARRANTS BECAUSE OF
THE INFINITE POSSIBILITIES WHICH INHERE IN ANY OPTION THAT REACHES INTO
THE INFINITE FUTURE.  HIS PREMISE IS PARTIALLY FALSE BECAUSE THE OPTION
IN THE WARRANTS DOES NOT EXTEND BEYOND THE LIFE OF THE COMMON STOCK AND
THERE IS NO GUARANTY OF THE LENGTH OF THAT LIFE.  ON THE OTHER HAND,
THE "PERPETUAL FEATURE" OF THE OPTION DOES AFFORD GROUND FOR
ANTICIPATING ITS SURVIVAL BEYOND THE SHORT PERIOD WHICH LIMITS ORDINARY
ESTIMATES OF INVESTMENT VALUES.  IT REACHES BEYOND THE FORESEEABLE INTO
THE UNEXPECTED AND THE UNPREDICTABLE. 

THE VALUE OF THIS "PERPETUAL FEATURE" MAY BE CALLED THE PREMIUM VALUE
OF THE WARRANTS AS DISTINGUISHED FROM THEIR INVESTMENT VALUE.  IT TAKES
INTO ACCOUNT SUCH POSSIBILITIES AS THAT OF A RUNAWAY INFLATION, AN
UNPRECEDENTED ACCUMULATION OF UNDISTRIBUTED SURPLUS EARNINGS, AN
UNLIKELY LIBERALIZATION OF STANDARDS OF PUBLIC UTILITY REGULATION, A
SURPRISE DISCOVERY OF OIL ON COMPANY PROPERTY, ETC.  THESE ARE
CONSIDERATIONS WHICH A BUYER OF "PERPETUAL" WARRANTS ON THE OPEN MARKET
MIGHT CONSIDER AS A BASIS FOR SPECULATION IN THEM.  FURTHERMORE,
BECAUSE WARRANTS ARE AMONG THE LOWEST PRICED OF ALL SECURITIES AND
BECAUSE THEIR MARKET PRICE TENDS TO FLUCTUATE WITH THE MARKET PRICE OF
THE STOCK TO WHICH THEY ARE RELATED, THEY PERMIT SPECULATION ON MARKET
TRENDS WITH A MINIMUM INVESTMENT.  FN6  A PURCHASER THUS MAY BE WILLING
TO PAY A NOMINAL PRICE FOR A WARRANT WHICH HAS NO INVESTMENT VALUE, ON
THE MERE CHANCE THAT IT MAY BE SALEABLE IN A RISING MARKET.  FN7 THIS,
HOWEVER, DOES NOT PROVIDE AN ADEQUATE REASON FOR ALLOWING A VALUE TO
THE WARRANTS, AT THE EXPENSE OF THE COMMON STOCK, IN A REORGANIZATION
UNDER THIS ACT. 

THIS REORGANIZATION OF A REGISTERED PUBLIC UTILITY HOLDING COMPANY IS
ONE BROUGHT ABOUT IN THE INTEREST OF THE PUBLIC.  THE COMPANY IS
SUBJECTED TO IT BY ITS STATUS AS A PUBLIC UTILITY AND BY ITS
REGISTRATION AS A HOLDING COMPANY UNDER THE ACT.  IN DETERMINING THE
FAIRNESS AND EQUITY OF COMPENSATION TO BE ALLOWED HOLDERS OF WARRANTS,
THE COMMISSION IS NOT BOUND AS A MATTER OF LAW, ANY MORE THAN IN THE
CASE OF OTHER SECURITIES, TO LIMIT ITSELF PRECISELY TO THE VALUES WHICH
THE MARKET RECOGNIZES.  THE INFORMED JUDGMENT OF THE COMMISSION, RATHER
THAN THAT OF THE MARKET, HAS BEEN DESIGNATED BY THE ACT AS THE
APPROPRIATE GUIDE TO FAIRNESS AND EQUITY WITHIN THE MEANING OF THE
ACT.  UNDER THE STANDARDS APPROVED BY THIS COURT, THAT INFORMED
JUDGMENT LOOKS FOR INVESTMENT VALUES ON A GOING-CONCERN BASIS MEASURED
PRIMARILY BY THE COMMISSION'S ESTIMATES OF EARNINGS WITHIN THE
FORESEEABLE FUTURE.  IN THE OTIS CASE, SUPRA, THIS COURT ACCEPTED THE
COMMISSION'S APPROVAL OF PARTICIPATION BY COMMON STOCK IN A
REORGANIZATION UNDER THE ACT, EVEN THOUGH THE ASSETS OF THE COMPANY TO
BE REORGANIZED WERE INSUFFICIENT TO SATISFY THE CHARTER LIQUIDATION
PREFERENCE OF THE PREFERRED STOCK.  THIS COURT THERE ACCEPTED THE
COMMISSION'S ESTIMATE THAT IN APPROXIMATELY 15 YEARS THE CORPORATION'S
EARNINGS WOULD BE SUFFICIENT TO PAY DIVIDENDS ON THE COMMON STOCK.  ON
THE OTHER HAND, IN THE CENTRAL-ILLINOIS CASE, SUPRA, WE EXPRESSLY
REJECTED THE "COLLOQUIAL EQUITY" APPROACH OF THE DISTRICT COURT, WHICH
PLACED SPECIAL EMPHASIS UPON MARKET HISTORY. 

IN THE ABSENCE OF ABUSE OF ITS DISCRETION, THE COMMISSION'S APPROVAL
OF A PLAN IS AS LAWFUL AND BINDING WHEN IT RECOGNIZES A VALUE OF ZERO
FOR A SECURITY AS WHEN IT SELECTS ANY OTHER FIGURE.  THE CASH ALLOWANCE
IT GIVES TO ONE SECURITY IT MUST TAKE FROM ANOTHER.  IN EACH CASE, IT
MUST DETERMINE THE FAIRNESS AND EQUITY OF THE PLAN TO ALL WHO ARE
AFFECTED.  WE CONCLUDE, THEREFORE, THAT IN THE PRESENT INSTANCE THE ACT
DOES NOT REQUIRE PROOF THAT THE WARRANTS ARE WHOLLY WORTHLESS AND
WITHOUT ALL MARKET VALUE IN ORDER TO SUSTAIN THE COMMISSION'S JUDGMENT
THAT THE PLAN IS FAIR AND EQUITABLE WHEN IT DENIES PARTICIPATION TO
THEM.  IT IS ENOUGH THAT THE COMMISSION, WITHIN ITS DISCRETION, HAS
GIVEN THE WARRANTS CAREFUL CONSIDERATION AND THAT UNDER ALL THE
CIRCUMSTANCES, INCLUDING THEIR MARKET VALUE, HAS FOUND THE PLAN TO BE
FAIR AND EQUITABLE WITHIN THE MEANING OF SEC. 11 OF THE ACT.  MOREOVER,
WE FIND NO LACK OF AUTHORITY IN ANALOGOUS FIELDS OF REORGANIZATION FOR
SUSTAINING THE GENERAL PRINCIPLE THAT A CLASS OF SECURITIES MAY GO
UNRECOGNIZED IN A REORGANIZATION WHEN INFORMED ESTIMATES OF FUTURE
EARNINGS INDICATE THAT THEY HAVE NO INVESTMENT VALUE.  FN8 

THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS REVERSED AND
THAT OF THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  "SEC.  11.  (A)  ... 

"(B)  IT SHALL BE THE DUTY OF THE COMMISSION  ..." 

     .         .         .         .      . 

"(2)  TO REQUIRE BY ORDER, AFTER NOTICE AND OPPORTUNITY FOR HEARING,
THAT EACH REGISTERED HOLDING COMPANY, AND EACH SUBSIDIARY COMPANY
THEREOF, SHALL TAKE SUCH STEPS AS THE COMMISSION SHALL FIND NECESSARY
TO ENSURE THAT THE CORPORATE STRUCTURE OR CONTINUED EXISTENCE OF ANY
COMPANY IN THE HOLDING-COMPANY SYSTEM DOES NOT UNDULY OR UNNECESSARILY
COMPLICATE THE STRUCTURE, OR UNFAIRLY OR INEQUITABLY DISTRIBUTE VOTING
POWER AMONG SECURITY HOLDERS, OF SUCH HOLDING-COMPANY SYSTEM.  ... 

.         .         .         .         . 

"(E)  IN ACCORDANCE WITH SUCH RULES AND REGULATIONS OR ORDER AS THE
COMMISSION MAY DEEM NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR
FOR THE PROTECTION OF INVESTORS OR CONSUMERS, ANY REGISTERED HOLDING
COMPANY OR ANY SUBSIDIARY COMPANY OF A REGISTERED HOLDING COMPANY MAY,
AT ANY TIME AFTER JANUARY 1, 1936, SUBMIT A PLAN TO THE COMMISSION FOR
THE DIVESTMENT OF CONTROL, SECURITIES, OR OTHER ASSETS, OR FOR OTHER
ACTION BY SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF FOR THE
PURPOSE OF ENABLING SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF TO
COMPLY WITH THE PROVISIONS OF SUBSECTION (B).  IF, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, THE COMMISSION SHALL FIND SUCH PLAN, AS
SUBMITTED OR AS MODIFIED, NECESSARY TO EFFECTUATE THE PROVISIONS OF
SUBSECTION (B) AND FAIR AND EQUITABLE TO THE PERSONS AFFECTED BY SUCH
PLAN, THE COMMISSION SHALL MAKE AN ORDER APPROVING SUCH PLAN; AND THE
COMMISSION, AT THE REQUEST OF THE COMPANY, MAY APPLY TO A COURT, IN
ACCORDANCE WITH THE PROVISIONS OF SUBSECTION (F) OF SECTION 18, TO
ENFORCE AND CARRY OUT THE TERMS AND PROVISIONS OF SUCH PLAN...."  49
STAT. 820, 821, 822, 15 U.S.C. SEC. 79K (B) AND (E). 

FN2  FOR A SUMMARY OF THE PROCEEDINGS SINCE 1942 UNDER SEC. 11(B)(2)
OF THE ACT, RELATING TO THE NIAGARA HUDSON SYSTEM, AND AT FIRST
RELATING TO 26 CORPORATE ENTITIES, SEE NIAGARA HUDSON POWER CORP.,
HOLDING COMPANY ACT RELEASE NO. 9270, PP. 7-8. 

FN3  IT APPEARS FROM THE WARRANT CERTIFICATES THAT THE HOLDER OF EACH
"IS ENTITLED TO PURCHASE AT ANY TIME (WITHOUT LIMIT)" SHARES OF COMMON
STOCK AT THE PRICE STATED.  IT ALSO APPEARS FROM THE CERTIFICATES THAT
THE WARRANTS ARE A SECOND GENERATION OF WARRANTS, HAVING BEEN ISSUED IN
EXCHANGE FOR WARRANTS OF TWO PREDECESSOR CORPORATIONS "FOR THE PURPOSE
OF PRESERVING AND CONTINUING, AS NEARLY AS MAY BE, THE RIGHTS OF THE
HOLDERS OF SAID OPTION WARRANTS, EXISTING AT THE DATE OF CONSOLIDATION,
ACCORDING TO THEIR RESPECTIVE TERMS." 

FN4  SUCH FINDINGS "ARE NOT SUBJECT TO REEXAMINATION BY THE COURT
UNLESS THEY ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE OR WERE NOT
ARRIVED AT 'IN ACCORDANCE WITH LEGAL STANDARDS.'"  SECURITIES &
EXCHANGE COMM'N V. CENTRAL-ILLINOIS CORP., 338 U.S. 96, 126. 

FN59  "WE RECOGNIZE THAT THE HOLDERS OF THE OPTION WARRANTS HAVE A
RIGHT TO PURCHASE COMMON STOCK AT ANY TIME, AND THAT THIS PERPETUAL
FEATURE HAS SOME PRESENT VALUE NO MATTER HOW REMOTE OR SPECULATIVE THE
EXERCISE OF THE RIGHT MIGHT BE.  THE VALUE TO BE ACCORDED THAT RIGHT,
HOWEVER, IN THIS CASE, IS SO SMALL THAT AS A PRACTICAL MATTER WE WOULD
NOT BE JUSTIFIED IN RECOGNIZING IT FOR THE PURPOSES OF A SECTION 11
REORGANIZATION.  CF. ELECTRIC POWER & LIGHT CORPORATION,  -  S.E.C. -
(1949), HOLDING COMPANY ACT RELEASE NO. 8889." 

FN5  IN IN RE ELECTRIC POWER & LIGHT CORP., HOLDING COMPANY ACT
RELEASE NO. 8889, AFF'D 176 F.2D 687, THE COMMISSION APPROVED A PLAN
ALLOCATING SHARES OF COMMON STOCK TO THE WARRANT HOLDERS AT A RATIO OF
ONE SHARE OF STOCK FOR THREE WARRANTS, IN RECOGNITION OF ESTIMATED
EARNINGS WHICH INDICATED THE VALUE OF THE STOCK IN THE FORESEEABLE
FUTURE AS BETWEEN $25 AND $30 PER SHARE, WHEREAS THE EXERCISE PRICE FOR
IT STATED IN THE WARRANTS WAS $25 PER SHARE. 

FN6  SEE 1 DEWING, THE FINANCIAL POLICY OF CORPORATIONS (4TH ED.
1941), 254; GRAHAM & DODD, SECURITY ANALYSIS (1934), 258-259, 548-550;
HOAGLAND, CORPORATION FINANCE (2D ED. 1938), 177. 

FN7  WHAT A TRADER IS WILLING TO PAY FOR A WARRANT IS DETERMINED BY
HIS OWN ESTIMATE OF THE "PROSPECTS OF CHANGE."  GRAHAM & DODD, SECURITY
ANALYSIS (1934), 547.  "THE PRIVILEGE (CONFERRED BY A WARRANT UPON ITS
HOLDER) CONSTITUTES A CALL UPON THE FUTURE PROSPERITY OF THE COMPANY,
AND ITS VALUE WILL DEPEND UPON THE HOPE THAT THE MARKET PRICE OF THE
STOCK WILL RISE ABOVE THE STIPULATED SUBSCRIPTION PRICE BEFORE THE
RIGHT EXPIRES."  GUTHMANN & DOUGALL, CORPORATE FINANCIAL POLICY (2D ED.
1948), 145. 

BERLE & MEANS, IN THE MODERN CORPORATION AND PRIVATE PROPERTY (1932),
STRESS THE DIFFICULTY OF FIXING A VALUE FOR WARRANTS.  "(THEY) MAINTAIN
MARKET VALUES, WHICH TO THE UNINITIATED SEEM INEXPLICABLE."  P. 183. 
MARKET QUOTATIONS FOR WARRANTS HAVE LED "CERTAIN OBSERVERS IN THE NEW
YORK MARKET TO SUGGEST THAT THE REAL RESULT OF AN OPTION WARRANT IS TO
CREATE A PURE GAMBLING COUNTER  ...  ."  P. 184.  "(AT) THE TIME WHEN
THE STOCK PURCHASE WARRANTS ARE ISSUED, PARTICULARLY IF THEY ARE
PERPETUAL, IT IS ALMOST BEYOND HUMAN WISDOM TO SET ANY FAIR PRICE ON
SUCH OPTIONS."  IBID.  TO THE SAME EFFECT, SEE GRAHAM & DODD, PP. 568
570. 

FN8  IN GROUP OF INSTITUTIONAL INVESTORS V. CHICAGO, M., ST. P. &
P.R. CO., 318 U.S. 523, THE COURT APPROVED A RAILROAD REORGANIZATION
UNDER SEC. 77 OF THE BANKRUPTCY ACT, 49 STAT. 911, 11 U.S.C. SEC. 205,
IN WHICH PREFERRED AND COMMON SHAREHOLDERS WERE WIPED OUT BECAUSE THEIR
EQUITY WAS NOT JUSTIFIED BY EARNINGS PROSPECTS.  AND IN REORGANIZATIONS
UNDER FORMER SEC. 77B OF THE BANKRUPTCY ACT, 48 STAT. 912, "THE
CRITERION OF EARNING CAPACITY IS THE ESSENTIAL ONE  ...  ." 
CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, 312 U.S. 510, 526.  SEE 6
COLLIER ON BANKRUPTCY (14TH ED. 1947), 3849-3859. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

I WOULD HAVE THE SECURITIES AND EXCHANGE COMMISSION TAKE ANOTHER
LOOK, FOR THE REASONS INDICATED IN JUDGE LEARNED HAND'S OPINION BELOW,
179 F.2D 615. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :









DEAN MILK CO. V. MADISON, 340 U.S. 349 


NO. 258.  ARGUED DECEMBER 7, 1950.  - DECIDED JANUARY 15, 1951.  - 257
WIS. 308, 43 N.W.2D 480, REVERSED. 


1.  AN ORDINANCE OF A WISCONSIN MUNICIPALITY FORBIDS THE SALE OF MILK
IN THE CITY AS PASTEURIZED UNLESS IT HAS BEEN PASTEURIZED AND BOTTLED
AT AN APPROVED PASTEURIZATION PLANT WITHIN FIVE MILES OF THE CENTER OF
THE CITY.  APPELLANT, AN ILLINOIS CORPORATION ENGAGED IN GATHERING AND
DISTRIBUTING MILK FROM FARMS IN ILLINOIS AND WISCONSIN, WAS DENIED A
LICENSE TO SELL ITS PRODUCTS WITHIN THE CITY SOLELY BECAUSE ITS
PASTEURIZATION PLANTS WERE MORE THAN FIVE MILES AWAY.  HELD: THE
ORDINANCE UNJUSTIFIABLY DISCRIMINATES AGAINST INTERSTATE COMMERCE, IN
VIOLATION OF THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 350
357. 

(A)  EVEN IN THE EXERCISE OF ITS UNQUESTIONED POWER TO PROTECT THE
HEALTH AND SAFETY OF ITS PEOPLE, A MUNICIPALITY MAY NOT ERECT AN
ECONOMIC BARRIER PROTECTING A MAJOR LOCAL INDUSTRY AGAINST COMPETITION
FROM WITHOUT THE STATE, IF REASONABLE NONDISCRIMINATORY ALTERNATIVES,
ADEQUATE TO CONSERVE LEGITIMATE LOCAL INTERESTS, ARE AVAILABLE.  P.
354. 

(B)  IN VIEW OF THE REASONABLE AND ADEQUATE ALTERNATIVES WHICH ARE
AVAILABLE FOR THE PROTECTION OF THE HEALTH AND SAFETY OF THE PEOPLE OF
THE MUNICIPALITY, THE DISCRIMINATION AGAINST INTERSTATE COMMERCE
INHERENT IN THE ORDINANCE VIOLATES THE COMMERCE CLAUSE.  PP. 354-356. 

2.  A SECOND PROVISION OF THE ORDINANCE IN QUESTION FORBIDS THE SALE
OF MILK, OR THE IMPORTATION, RECEIPT OR STORAGE OF MILK FOR SALE,
WITHIN THE CITY EXCEPT FROM A SOURCE OF SUPPLY POSSESSING A PERMIT
ISSUED AFTER INSPECTION BY CITY OFFICIALS; AND EXPRESSLY RELIEVES THE
CITY OFFICIALS FROM ANY DUTY TO INSPECT FARMS LOCATED BEYOND TWENTY
FIVE MILES FROM THE CITY.  APPELLANT'S ATTACK ON THE CONSTITUTIONAL
VALIDITY OF THIS PROVISION WAS DISMISSED BY THE STATE COURT FOR WANT OF
A JUSTICIABLE CONTROVERSY.  HELD:  AS TO THE ISSUE THUS PRESENTED, THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE
PRINCIPLES ANNOUNCED IN THE OPINION OF THIS COURT.  PP. 350-351, 356
357. 

DEAN MILK CO. V. CITY OF MADISON ET AL. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

AN ORDINANCE OF A WISCONSIN MUNICIPALITY REGULATING THE SALE OF MILK
WAS SUSTAINED BY THE STATE SUPREME COURT, OVER APPELLANT'S OBJECTIONS
TO ITS VALIDITY UNDER THE FEDERAL CONSTITUTION.  257 WIS. 308, 43
N.W.2D 480.  ON APPEAL TO THIS COURT, REVERSED AND REMANDED, P. 357. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL CHALLENGES THE CONSTITUTIONAL VALIDITY OF TWO SECTIONS OF
AN ORDINANCE OF THE CITY OF MADISON, WISCONSIN, REGULATING THE SALE OF
MILK AND MILK PRODUCTS WITHIN THE MUNICIPALITY'S JURISDICTION.  ONE
UNLESS IT HAS BEEN PROCESSED AND BOTTLED AT AN APPROVED PASTEURIZATION
PLANT WITHIN A RADIUS OF FIVE MILES FROM THE CENTRAL SQUARE OF
MADISON.  FN1  ANOTHER SECTION, WHICH PROHIBITS THE SALE OF MILK, OR
THE IMPORTATION, RECEIPT OR STORAGE OF MILK FOR SALE, IN MADISON UNLESS
FROM A SOURCE OF SUPPLY POSSESSING A PERMIT ISSUED AFTER INSPECTION BY
MADISON OFFICIALS, IS ATTACKED INSOFAR AS IT EXPRESSLY RELIEVES
MUNICIPAL AUTHORITIES FROM ANY DUTY TO INSPECT FARMS LOCATED BEYOND
TWENTY-FIVE MILES FROM THE CENTER OF THE CITY.  FN2 

APPELLANT IS AN ILLINOIS CORPORATION ENGAGED IN DISTRIBUTING MILK AND
MILK PRODUCTS IN ILLINOIS AND WISCONSIN.  IT CONTENDED BELOW, AS IT
DOES HERE, THAT BOTH THE FIVE-MILE LIMIT ON PASTEURIZATION PLANTS AND
THE TWENTY-FIVE-MILE LIMIT ON SOURCES OF MILK VIOLATE THE COMMERCE
CLAUSE AND THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION.  THE
SUPREME COURT OF WISCONSIN UPHELD THE FIVE-MILE LIMIT ON
PASTEURIZATION.  FN3  AS TO THE TWENTY-FIVE-MILE LIMITATION THE COURT
ORDERED THE COMPLAINT DISMISSED FOR WANT OF A JUSTICIABLE CONTROVERSY. 
257 WIS. 308, 43 N.W.2D 480(1950).  THIS APPEAL, CONTESTING BOTH
RULINGS, INVOKES THE JURISDICTION OF THIS COURT UNDER 28 U.S.C. SEC.
1257(2). 

THE CITY OF MADISON IS THE COUNTY SEAT OF DANE COUNTY.  WITHIN THE
COUNTY ARE SOME 5,600 DAIRY FARMS WITH TOTAL RAW MILK PRODUCTION IN
EXCESS OF 600,000,000 POUNDS ANNUALLY AND MORE THAN TEN TIMES THE
REQUIREMENTS OF MADISON.  ASIDE FROM THE MILK SUPPLIED TO MADISON,
FLUID MILK PRODUCED IN THE COUNTY MOVES IN LARGE QUANTITIES TO CHICAGO
AND MORE DISTANT CONSUMING AREAS, AND THE REMAINDER IS USED IN MAKING
CHEESE, BUTTER AND OTHER PRODUCTS.  AT THE TIME OF TRIAL THE MADISON
MILKSHED WAS NOT OF "GRADE A" QUALITY BY THE STANDARDS RECOMMENDED BY
THE UNITED STATES PUBLIC HEALTH SERVICE, AND NO MILK LABELED "GRADE A"
WAS DISTRIBUTED IN MADISON. 

THE AREA DEFINED BY THE ORDINANCE WITH RESPECT TO MILK SOURCES
ENCOMPASSES PRACTICALLY ALL OF DANE COUNTY AND INCLUDES SOME 500 FARMS
WHICH SUPPLY MILK FOR MADISON.  WITHIN THE FIVE-MILE AREA FOR
PASTEURIZATION ARE PLANTS OF FIVE PROCESSORS, ONLY THREE OF WHICH ARE
ENGAGED IN THE GENERAL WHOLESALE AND RETAIL TRADE IN MADISON. 
INSPECTION OF THESE FARMS AND PLANTS IS SCHEDULED ONCE EVERY THIRTY
DAYS AND IS PERFORMED BY TWO MUNICIPAL INSPECTORS, ONE OF WHOM IS FULL
TIME.  THE COURTS BELOW FOUND THAT THE ORDINANCE IN QUESTION PROMOTES
CONVENIENT, ECONOMICAL AND EFFICIENT PLANT INSPECTION. 

APPELLANT PURCHASES AND GATHERS MILK FROM APPROXIMATELY 950 FARMS IN
NORTHERN ILLINOIS AND SOUTHERN WISCONSIN, NONE BEING WITHIN TWENTY-FIVE
MILES OF MADISON.  ITS PASTEURIZATION PLANTS ARE LOCATED AT CHEMUNG AND
HUNTLEY, ILLINOIS, ABOUT 65 AND 85 MILES RESPECTIVELY FROM MADISON. 
APPELLANT WAS DENIED A LICENSE TO SELL ITS PRODUCTS WITHIN MADISON
SOLELY BECAUSE ITS PASTEURIZATION PLANTS WERE MORE THAN FIVE MILES
AWAY. 

IT IS CONCEDED THAT THE MILK WHICH APPELLANT SEEKS TO SELL IN MADISON
IS SUPPLIED FROM FARMS AND PROCESSED IN PLANTS LICENSED AND INSPECTED
BY PUBLIC HEALTH AUTHORITIES OF CHICAGO, AND IS LABELED "GRADE A" UNDER
THE CHICAGO ORDINANCE WHICH ADOPTS THE RATING STANDARDS RECOMMENDED BY
THE UNITED STATES PUBLIC HEALTH SERVICE.  BOTH THE CHICAGO AND MADISON
ORDINANCES, THOUGH NOT THE SECTIONS OF THE LATTER HERE IN ISSUE, ARE
LARGELY PATTERNED AFTER THE MODEL MILK ORDINANCE OF THE PUBLIC HEALTH
SERVICE.  HOWEVER, MADISON CONTENDS AND WE ASSUME THAT IN SOME
PARTICULARS ITS ORDINANCE IS MORE RIGOROUS THAN THAT OF CHICAGO. 

UPON THESE FACTS WE FIND IT NECESSARY TO DETERMINE ONLY THE ISSUE
RAISED UNDER THE COMMERCE CLAUSE, FOR WE AGREE WITH APPELLANT THAT THE
ORDINANCE IMPOSES AN UNDUE BURDEN ON INTERSTATE COMMERCE. 

THIS IS NOT AN INSTANCE IN WHICH AN ENACTMENT FALLS BECAUSE OF
FEDERAL LEGISLATION WHICH, AS A PROPER EXERCISE OF PARAMOUNT NATIONAL
POWER OVER COMMERCE, EXCLUDES MEASURES WHICH MIGHT OTHERWISE BE WITHIN
THE POLICE POWER OF THE STATES.  SEE CURRIN V. WALLACE, 306 U.S. 1, 12
13(1939).  THERE IS NO PERTINENT NATIONAL REGULATION BY THE CONGRESS,
AND STATUTES ENACTED FOR THE DISTRICT OF COLUMBIA INDICATE THAT
CONGRESS HAS RECOGNIZED THE APPROPRIATENESS OF LOCAL REGULATION OF THE
SALE OF FLUID MILK.  D.C. CODE, 1940, SECS. 33-301 ET SEQ. IT IS NOT
CONTENDED, HOWEVER, THAT CONGRESS HAS AUTHORIZED THE REGULATION BEFORE
US. 

NOR CAN THERE BE OBJECTION TO THE AVOWED PURPOSE OF THIS ENACTMENT. 
WE ASSUME THAT DIFFICULTIES IN SANITARY REGULATION OF MILK AND MILK
PRODUCTS ORIGINATING IN REMOTE AREAS MAY PRESENT A SITUATION IN WHICH
"UPON A CONSIDERATION OF ALL THE RELEVANT FACTS AND CIRCUMSTANCES IT
APPEARS THAT THE MATTER IS ONE WHICH MAY APPROPRIATELY BE REGULATED IN
THE INTEREST OF THE SAFETY, HEALTH AND WELL-BEING OF LOCAL COMMUNITIES
... "  PARKER V. BROWN, 317 U.S. 341, 362-363(1943); SEE H. P. HOOD &
SONS V. DU MOND, 336 U.S. 525, 531-532(1949).  WE ALSO ASSUME THAT
SINCE CONGRESS HAS NOT SPOKEN TO THE CONTRARY, THE SUBJECT MATTER OF
THE ORDINANCE LIES WITHIN THE SPHERE OF STATE REGULATION EVEN THOUGH
INTERSTATE COMMERCE MAY BE AFFECTED.  MILK CONTROL BOARD V. EISENBERG
FARM PRODUCTS, 306 U.S. 346(1939); SEE BALDWIN V. SEELIG, INC., 294
U.S. 511, 524(1935). 

BUT THIS REGULATION, LIKE THE PROVISION INVALIDATED IN BALDWIN V.
SEELIG, INC., SUPRA, IN PRACTICAL EFFECT EXCLUDES FROM DISTRIBUTION IN
MADISON WHOLESOME MILK PRODUCED AND PASTEURIZED IN ILLINOIS.  "THE
IMPORTER  ...  MAY KEEP HIS MILK OR DRINK IT, BUT SELL IT HE MAY NOT." 
ID., AT 521.  IN THUS ERECTING AN ECONOMIC BARRIER PROTECTING A MAJOR
LOCAL INDUSTRY AGAINST COMPETITION FROM WITHOUT THE STATE, MADISON
PLAINLY DISCRIMINATES AGAINST INTERSTATE COMMERCE.  FN4  THIS IT CANNOT
DO, EVEN IN THE EXERCISE OF ITS UNQUESTIONED POWER TO PROTECT THE
HEALTH AND SAFETY OF ITS PEOPLE, IF REASONABLE NONDISCRIMINATORY
ALTERNATIVES, ADEQUATE TO CONSERVE LEGITIMATE LOCAL INTERESTS, ARE
AVAILABLE.  CF. BALDWIN V. SEELIG, INC., SUPRA, AT 524; MINNESOTA V.
BARBER, 136 U.S. 313, 328(1890).  A DIFFERENT VIEW, THAT THE ORDINANCE
IS VALID SIMPLY BECAUSE IT PROFESSES TO BE A HEALTH MEASURE, WOULD MEAN
THAT THE COMMERCE CLAUSE OF ITSELF IMPOSES NO LIMITATIONS ON STATE
ACTION OTHER THAN THOSE LAID DOWN BY THE DUE PROCESS CLAUSE, SAVE FOR
THE RARE INSTANCE WHERE A STATE ARTLESSLY DISCLOSES AN AVOWED PURPOSE
TO DISCRIMINATE AGAINST INTERSTATE GOODS.  CF. H. P. HOOD & SONS V. DU
MOND, SUPRA.  OUR ISSUE THEN IS WHETHER THE DISCRIMINATION INHERENT IN
THE MADISON ORDINANCE CAN BE JUSTIFIED IN VIEW OF THE CHARACTER OF THE
LOCAL INTERESTS AND THE AVAILABLE METHODS OF PROTECTING THEM.  CF.
UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, 211(1944). 

IT APPEARS THAT REASONABLE AND ADEQUATE ALTERNATIVES ARE AVAILABLE. 
IF THE CITY OF MADISON PREFERS TO RELY UPON ITS OWN OFFICIALS FOR
INSPECTION OF DISTANT MILK SOURCES, SUCH INSPECTION IS READILY OPEN TO
IT WITHOUT HARDSHIP FOR IT COULD CHARGE THE ACTUAL AND REASONABLE COST
OF SUCH INSPECTION TO THE IMPORTING PRODUCERS AND PROCESSORS.  CF.
SPROUT V. CITY OF SOUTH BEND, 277 U.S. 163, 169(1928); SEE MILLER V.
WILLIAMS, 12 F.SUPP.  236, 242, 244(D. MD. 1935).  MOREOVER, APPELLEE
HEALTH COMMISSIONER OF MADISON TESTIFIED THAT AS PROPONENT OF THE LOCAL
MILK ORDINANCE HE HAD SUBMITTED THE PROVISIONS HERE IN CONTROVERSY AND
AN ALTERNATIVE PROPOSAL BASED ON SEC. 11 OF THE MODEL MILK ORDINANCE
RECOMMENDED BY THE UNITED STATES PUBLIC HEALTH SERVICE.  THE MODEL
PROVISION IMPOSES NO GEOGRAPHICAL LIMITATION ON LOCATION OF MILK
SOURCES AND PROCESSING PLANTS BUT EXCLUDES FROM THE MUNICIPALITY MILK
NOT PRODUCED AND PASTEURIZED CONFORMABLY TO STANDARDS AS HIGH AS THOSE
ENFORCED BY THE RECEIVING CITY.  FN5  IN IMPLEMENTING SUCH AN
ORDINANCE, THE IMPORTING CITY OBTAINS MILK RATINGS BASED ON UNIFORM
STANDARDS AND ESTABLISHED BY HEALTH AUTHORITIES IN THE JURISDICTION
WHERE PRODUCTION AND PROCESSING OCCUR.  THE RECEIVING CITY MAY
DETERMINE THE EXTENT OF ENFORCEMENT OF SANITARY STANDARDS IN THE
EXPORTING AREA BY VERIFYING THE ACCURACY OF SAFETY RATINGS OF SPECIFIC
PLANTS OR OF THE MILKSHED IN THE DISTANT JURISDICTION THROUGH THE
UNITED STATES PUBLIC HEALTH SERVICE, WHICH ROUTINELY AND ON REQUEST
SPOT CHECKS THE LOCAL RATINGS.  THE COMMISSIONER TESTIFIED THAT MADISON
CONSUMERS "WOULD BE SAFEGUARDED ADEQUATELY" UNDER EITHER PROPOSAL AND
THAT HE HAD EXPRESSED NO PREFERENCE.  THE MILK SANITARIAN OF THE
WISCONSIN STATE BOARD OF HEALTH TESTIFIED THAT THE STATE HEALTH
DEPARTMENT RECOMMENDS THE ADOPTION OF A PROVISION BASED ON THE MODEL
ORDINANCE.  BOTH OFFICIALS AGREED THAT A LOCAL HEALTH OFFICER WOULD BE
JUSTIFIED IN RELYING UPON THE EVALUATION BY THE PUBLIC HEALTH SERVICE
OF ENFORCEMENT CONDITIONS IN REMOTE PRODUCING AREAS. 

TO PERMIT MADISON TO ADOPT A REGULATION NOT ESSENTIAL FOR THE
PROTECTION OF LOCAL HEALTH INTERESTS AND PLACING A DISCRIMINATORY
BURDEN ON INTERSTATE COMMERCE WOULD INVITE A MULTIPLICATION OF
PREFERENTIAL TRADE AREAS DESTRUCTIVE OF THE VERY PURPOSE OF THE
COMMERCE CLAUSE.  UNDER THE CIRCUMSTANCES HERE PRESENTED, THE
REGULATION MUST YIELD TO THE PRINCIPLE THAT "ONE STATE IN ITS DEALINGS
WITH ANOTHER MAY NOT PLACE ITSELF IN A POSITION OF ECONOMIC
ISOLATION."  BALDWIN V. SEELIG, INC., SUPRA, AT 527. 

FOR THESE REASONS WE CONCLUDE THAT THE JUDGMENT BELOW SUSTAINING THE
FIVE-MILE PROVISION AS TO PASTEURIZATION MUST BE REVERSED. 

THE SUPREME COURT OF WISCONSIN THOUGHT IT UNNECESSARY TO PASS UPON
THE VALIDITY OF THE TWENTY-FIVE-MILE LIMITATION, APPARENTLY IN PART FOR
THE REASON THAT THIS ISSUE WAS MADE ACADEMIC BY ITS DECISION UPHOLDING
THE FIVE-MILE SECTION.  IN VIEW OF OUR CONCLUSION AS TO THE LATTER
PROVISION, A DETERMINATION OF APPELLANT'S CONTENTION AS TO THE OTHER
JUDGMENT BELOW AND REMAND FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THE PRINCIPLES ANNOUNCED IN THIS OPINION.  IT IS SO ORDERED. 

FN1  GENERAL ORDINANCES OF THE CITY OF MADISON, 1949, SEC. 7.21
PROVIDES AS FOLLOWS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, ASSOCIATION OR CORPORATION TO
SELL, OFFER FOR SALE OR HAVE IN HIS OR ITS POSSESSION WITH INTENT TO
SELL OR DELIVER IN THE CITY OF MADISON, ANY MILK, CREAM OR MILK
PRODUCTS AS PASTEURIZED UNLESS THE SAME SHALL HAVE BEEN PASTEURIZED AND
BOTTLED IN THE MANNER HEREIN PROVIDED WITHIN A RADIUS OF FIVE MILES
FROM THE CENTRAL PORTION OF THE CITY OF MADISON OTHERWISE KNOWN AS THE
CAPITOL SQUARE, AT A PLANT HOUSING THE MACHINERY, EQUIPMENT AND
FACILITIES, ALL OF WHICH SHALL HAVE BEEN APPROVED BY THE DEPARTMENT OF
PUBLIC HEALTH." 

FN2  ID., SEC. 7.11, PROVIDES IN PERTINENT PART AS FOLLOWS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO BRING INTO OR RECEIVE INTO
THE CITY OF MADISON, WISCONSIN, OR ITS POLICE JURISDICTION, FOR SALE,
OR TO SELL, OR OFFER FOR SALE THEREIN, OR TO HAVE IN STORAGE WHERE MILK
OR MILK PRODUCTS ARE SOLD OR SERVED, ANY MILK OR MILK PRODUCT AS
DEFINED IN THIS ORDINANCE FROM A SOURCE NOT POSSESSING A PERMIT FROM
THE HEALTH COMMISSIONER OF THE CITY OF MADISON, WISCONSIN. 

"ONLY A PERSON WHO COMPLIES WITH THE REQUIREMENTS OF THIS ORDINANCE
SHALL BE ENTITLED TO RECEIVE AND RETAIN SUCH A PERMIT. 

"ON THE FILING OF AN APPLICATION FOR A PERMIT WITH THE HEALTH
COMMISSIONER, HE SHALL CAUSE THE SOURCE OF SUPPLY NAMED THEREIN TO BE
INSPECTED AND SHALL CAUSE ALL OTHER NECESSARY INSPECTIONS AND
INVESTIGATIONS TO BE MADE.  THE DEPARTMENT OF PUBLIC HEALTH SHALL NOT
BE OBLIGATED TO INSPECT AND ISSUE PERMITS TO FARMS LOCATED BEYOND
TWENTY-FIVE (25) MILES FROM THE CENTRAL PORTION OF THE CITY OF MADISON
OTHERWISE KNOWN AS THE CAPITOL SQUARE.  ...  " 

FN3  IN UPHOLDING SEC. 7.21, NOTE 1, SUPRA, THE COURT RELIED UPON THE
PRINCIPLES ANNOUNCED BY IT IN DYER V. CITY COUNCIL OF BELOIT, 250 WIS.
613, 27 N.W.2D 733(1947), JUDGMENT VACATED, 333 U.S. 825(1948). 

FN4  IT IS IMMATERIAL THAT WISCONSIN MILK FROM OUTSIDE THE MADISON
AREA IS SUBJECTED TO THE SAME PROSCRIPTION AS THAT MOVING IN INTERSTATE
COMMERCE.  CF. BRIMMER V. REBMAN, 138 U.S. 78, 82-83(1891). 

FN5  SECTION 11 OF THE UNITED STATES PUBLIC HEALTH SERVICE MILK
ORDINANCE AS RECOMMENDED IN 1939 PROVIDES: 

"MILK AND MILK PRODUCTS FROM POINTS BEYOND THE LIMITS OF ROUTINE
INSPECTION OF THE CITY OF ............ MAY NOT BE SOLD IN THE CITY OF
............, OR ITS POLICE JURISDICTION, UNLESS PRODUCED AND/OR
PASTEURIZED UNDER PROVISIONS EQUIVALENT TO THE REQUIREMENTS OF THIS
ORDINANCE; PROVIDED THAT THE HEALTH OFFICER SHALL SATISFY HIMSELF THAT
THE HEALTH OFFICER HAVING JURISDICTION OVER THE PRODUCTION AND
PROCESSING IS PROPERLY ENFORCING SUCH PROVISIONS."    THE FOLLOWING
COMMENT ON THIS SECTION IS CONTAINED IN THE PUBLIC HEALTH SERVICE MILK
CODE: 

"IT IS SUGGESTED THAT THE HEALTH OFFICER APPROVE MILK OR MILK
PRODUCTS FROM DISTANT POINTS WITHOUT HIS INSPECTION IF THEY ARE
PRODUCED AND PROCESSED UNDER REGULATIONS EQUIVALENT TO THOSE OF THIS
ORDINANCE, AND IF THE MILK OR MILK PRODUCTS HAVE BEEN AWARDED BY THE
STATE CONTROL AGENCY A RATING OF 90 PERCENT OR MORE ON THE BASIS OF THE
PUBLIC HEALTH SERVICE RATING METHOD."  FEDERAL SECURITY AGENCY, PUBLIC
HEALTH BULLETIN NO. 220(1939), 145. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MINTON CONCUR, DISSENTING.    TODAY'S HOLDING INVALIDATES SEC. 7.21 OF
THE MADISON, WISCONSIN, ORDINANCE ON THE FOLLOWING REASONING:  (1) THE
A DISCRIMINATORY BURDEN ON INTERSTATE COMMERCE; (3) SUCH A BURDEN
CANNOT BE IMPOSED WHERE, AS HERE, THERE ARE REASONABLE,
NONDISCRIMINATORY AND ADEQUATE ALTERNATIVES AVAILABLE.  I DISAGREE WITH
THE COURT'S PREMISES, REASONING, AND JUDGMENT. 

(1)  THIS ORDINANCE DOES NOT EXCLUDE WHOLESOME MILK COMING FROM
ILLINOIS OR ANYWHERE ELSE.  IT DOES REQUIRE THAT ALL MILK SOLD IN
MADISON MUST BE PASTEURIZED WITHIN FIVE MILES OF THE CENTER OF THE
CITY.  BUT THERE WAS NO FINDING IN THE STATE COURTS, NOR EVIDENCE TO
JUSTIFY A FINDING THERE OR HERE, THAT APPELLANT, DEAN MILK COMPANY, IS
UNABLE TO HAVE ITS MILK PASTEURIZED WITHIN THE DEFINED GEOGRAPHICAL
AREA.  AS A PRACTICAL MATTER, SO FAR AS THE RECORD SHOWS, DEAN CAN
EASILY COMPLY WITH THE ORDINANCE WHENEVER IT WANTS TO.  THEREFORE,
DEAN'S PERSONAL PREFERENCE TO PASTEURIZE IN ILLINOIS, NOT THE
ORDINANCE, KEEPS DEAN'S MILK OUT OF MADISON. 

(2)  CHARACTERIZATION OF SEC. 7.21 AS A "DISCRIMINATORY BURDEN" ON
INTERSTATE COMMERCE IS MERELY A STATEMENT OF THE COURT'S RESULT, WHICH
I THINK INCORRECT.  THE SECTION DOES PROHIBIT THE SALE OF MILK IN
MADISON BY INTERSTATE AND INTRASTATE PRODUCERS WHO PREFER TO PASTEURIZE
OVER FIVE MILES DISTANT FROM THE CITY.  BUT BOTH STATE COURTS BELOW
FOUND THAT SEC. 7.21 REPRESENTS A GOOD-FAITH ATTEMPT TO SAFEGUARD
PUBLIC HEALTH BY MAKING ADEQUATE SANITATION INSPECTIONS POSSIBLE. 
WHILE WE ARE NOT BOUND BY THESE FINDINGS, I DO NOT UNDERSTAND THE COURT
TO OVERTURN THEM.  THEREFORE, THE FACT THAT SEC. 7.21, LIKE ALL HEALTH
REGULATIONS, IMPOSES SOME BURDEN ON TRADE, DOES NOT MEAN THAT IT
"DISCRIMINATES" AGAINST INTERSTATE COMMERCE. 

(3)  THIS HEALTH REGULATION SHOULD NOT BE INVALIDATED MERELY BECAUSE
THE COURT BELIEVES THAT ALTERNATIVE MILK-INSPECTION METHODS MIGHT
INSURE THE CLEANLINESS AND HEALTHFULNESS OF DEAN'S ILLINOIS MILK.  I
FIND IT DIFFICULT TO EXPLAIN WHY THE COURT USES THE "REASONABLE
ALTERNATIVE" CONCEPT TO PROTECT TRADE WHEN TODAY IT REFUSES TO APPLY
THE SAME PRINCIPLE TO PROTECT FREEDOM OF SPEECH.  FEINER V. NEW YORK,
340 U.S. 315.  FOR WHILE THE "REASONABLE ALTERNATIVE" CONCEPT HAS BEEN
INVOKED TO PROTECT FIRST AMENDMENT RIGHTS, E.G., SCHNEIDER V. STATE,
308 U.S. 147, 162, IT HAS NOT HERETOFORE BEEN CONSIDERED AN APPROPRIATE
WEAPON FOR STRIKING DOWN LOCAL HEALTH LAWS.  SINCE THE DAYS OF CHIEF
JUSTICE MARSHALL, FEDERAL COURTS HAVE LEFT STATES AND MUNICIPALITIES
FREE TO PASS BONA FIDE HEALTH REGULATIONS SUBJECT ONLY "TO THE
PARAMOUNT AUTHORITY OF CONGRESS IF IT DECIDES TO ASSUME CONTROL  ...  "
THE MINNESOTA RATE CASES, 230 U.S. 352, 406; GIBBONS V. OGDEN, 9
WHEAT.  1, 203, 204; MINTZ V. BALDWIN, 289 U.S. 346, 349-350; AND SEE
BALDWIN V. SEELIG, 294 U.S. 511, 524.  THIS ESTABLISHED JUDICIAL POLICY
OF REFUSING TO INVALIDATE GENUINE LOCAL HEALTH LAWS UNDER THE COMMERCE
CLAUSE HAS BEEN APPROVINGLY NOTED EVEN IN OUR RECENT OPINIONS MEASURING
STATE REGULATION BY STRINGENT STANDARDS.  SEE, E.G., HOOD & SONS V. DU
MOND, 336 U.S. 525, 531-532.  NO CASE IS CITED, AND I HAVE FOUND NONE,
IN WHICH A BONA FIDE HEALTH LAW WAS STRUCK DOWN ON THE GROUND THAT SOME
OTHER METHOD OF SAFEGUARDING HEALTH WOULD BE AS GOOD AS, OR BETTER
THAN, THE ONE THE COURT WAS CALLED ON TO REVIEW.  IN MY VIEW, TO USE
THIS GROUND NOW ELEVATES THE RIGHT TO TRAFFIC IN COMMERCE FOR PROFIT
ABOVE THE POWER OF THE PEOPLE TO GUARD THE PURITY OF THEIR DAILY DIET
OF MILK. 

IF, HOWEVER, THE PRINCIPLE ANNOUNCED TODAY IS TO BE FOLLOWED, THE
COURT SHOULD NOT STRIKE DOWN LOCAL HEALTH REGULATIONS UNLESS SATISFIED
BEYOND A REASONABLE DOUBT THAT THE SUBSTITUTES IT PROPOSES WOULD NOT
LOWER HEALTH STANDARDS.  I DO NOT THINK THAT THE COURT CAN SO SATISFY
ITSELF ON THE BASIS OF ITS JUDICIAL KNOWLEDGE.  AND THE EVIDENCE IN THE
RECORD LEADS ME TO THE CONCLUSION THAT THE SUBSTITUTE HEALTH MEASURES
SUGGESTED BY THE COURT DO NOT INSURE MILK AS SAFE AS THE MADISON
ORDINANCE REQUIRES. 

ONE OF THE COURT'S PROPOSALS IS THAT MADISON REQUIRE MILK PROCESSORS
TO PAY REASONABLE INSPECTION FEES AT THE MILK SUPPLY "SOURCES." 
EXPERIENCE SHOWS, HOWEVER, THAT THE FEE METHOD GIVES RISE TO PROLONGED
LITIGATION OVER THE CALCULATION AND COLLECTION OF THE CHARGES.  E.G.,
SPROUT V. SOUTH BEND, 277 U.S. 163; CAPITOL GREYHOUND LINES V. BRICE,
339 U.S. 542.  TO THROW LOCAL MILK REGULATION INTO SUCH A QUAGMIRE OF
UNCERTAINTY JEOPARDIZES THE ADMIRABLE MILK-INSPECTION SYSTEMS IN FORCE
IN MANY MUNICIPALITIES.  MOREOVER, NOTHING IN THE RECORD BEFORE US
INDICATES THAT THE FEE SYSTEM MIGHT NOT BE AS COSTLY TO DEAN AS HAVING
ITS MILK PASTEURIZED IN MADISON.  SURELY THE COURT IS NOT RESOLVING
THIS QUESTION BY DRAWING ON ITS "JUDICIAL KNOWLEDGE" TO SUPPLY
INFORMATION AS TO COMPARATIVE COSTS, CONVENIENCE, OR EFFECTIVENESS. 

THE COURT'S SECOND PROPOSAL IS THAT MADISON ADOPT SEC. 11 OF THE
"MODEL MILK ORDINANCE."  THE STATE COURTS MADE NO FINDINGS AS TO THE
RELATIVE MERITS OF THIS INSPECTION ORDINANCE AND THE ONE CHOSEN BY
MADISON.  THE EVIDENCE INDICATES TO ME THAT ENFORCEMENT OF THE MADISON
LAW WOULD ASSURE A MORE HEALTHFUL QUALITY OF MILK THAN THAT WHICH IS
ENTITLED TO USE THE LABEL OF "GRADE A" UNDER THE MODEL ORDINANCE. 
INDEED, THE UNITED STATES BOARD OF PUBLIC HEALTH, WHICH DRAFTED THE
MODEL ORDINANCE, SUGGESTS THAT THE PROVISIONS ARE "MINIMUM" STANDARDS
ONLY.  THE MODEL ORDINANCE DOES NOT PROVIDE FOR CONTINUOUS
INVESTIGATION OF ALL PASTEURIZATION PLANTS AS DOES SEC. 7.21 OF THE
MADISON ORDINANCE.  UNDER SEC. 11, MOREOVER, MADISON WOULD BE REQUIRED
TO DEPEND ON THE CHICAGO INSPECTION SYSTEM SINCE DEAN'S PLANTS, AND THE
FARMS SUPPLYING THEM WITH RAW MILK, ARE LOCATED IN THE CHICAGO
MILKSHED.  BUT THERE IS DIRECT AND POSITIVE EVIDENCE IN THE RECORD THAT
MILK PRODUCED UNDER CHICAGO STANDARDS DID NOT MEET THE MADISON
REQUIREMENTS. 

FURTHERMORE, THE MODEL ORDINANCE WOULD FORCE THE MADISON HEALTH
AUTHORITIES TO RELY ON "SPOT CHECKS" BY THE UNITED STATES PUBLIC HEALTH
SERVICE TO DETERMINE WHETHER CHICAGO ENFORCED ITS MILK REGULATIONS. 
THE EVIDENCE SHOWS THAT THESE "SPOT CHECKS" ARE BASED ON RANDOM
INSPECTION OF FARMS AND PASTEURIZATION PLANTS:  THE UNITED STATES
PUBLIC HEALTH SERVICE RATES THE TEN THOUSAND OR MORE DAIRY FARMS IN THE
CHICAGO MILKSHED BY A SAMPLING OF NO MORE THAN TWO HUNDRED FARMS.  THE
SAME SAMPLING TECHNIQUE IS EMPLOYED TO INSPECT PASTEURIZATION PLANTS. 
THERE WAS EVIDENCE THAT NEITHER THE FARMS SUPPLYING DEAN WITH MILK NOR
DEAN'S PASTEURIZATION PLANTS WERE NECESSARILY INSPECTED IN THE LAST
"SPOT CHECK" OF THE CHICAGO MILKSHED MADE TWO YEARS BEFORE THE PRESENT
CASE WAS TRIED. 

FROM WHAT THIS RECORD SHOWS, AND FROM WHAT IT FAILS TO SHOW, I DO NOT
THINK THAT EITHER OF THE ALTERNATIVES SUGGESTED BY THE COURT WOULD
ASSURE THE PEOPLE OF MADISON AS PURE A SUPPLY OF MILK AS THEY RECEIVE
UNDER THEIR OWN ORDINANCE.  ON THIS RECORD I WOULD UPHOLD THE MADISON
LAW.  AT THE VERY LEAST, HOWEVER, I WOULD NOT INVALIDATE IT WITHOUT
GIVING THE PARTIES A CHANCE TO PRESENT EVIDENCE AND GET FINDINGS ON THE
ULTIMATE ISSUES THE COURT THINKS CRUCIAL - NAMELY, THE RELATIVE MERITS
OF THE MADISON ORDINANCE AND THE ALTERNATIVES SUGGESTED BY THE COURT
TODAY. 
..END :



LABOR BOARD V. GULLETT GIN CO., 340 U.S. 361 


NO. 122.  ARGUED NOVEMBER 29, 1950.  - DECIDED JANUARY 15, 1951.  - 179
F.2D 499, REVERSED. 


UNDER SEC. 10(C) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY
THE LABOR MANAGEMENT RELATIONS ACT, 1947, THE BOARD DID NOT EXCEED ITS
POWER OR ABUSE ITS DISCRETION IN REFUSING TO DEDUCT SUMS PAID TO
EMPLOYEES AS UNEMPLOYMENT COMPENSATION BY A STATE AGENCY WHEN THE BOARD
FOUND THAT THEY WERE DISCHARGED IN VIOLATION OF THE ACT AND ORDERED
THEIR REINSTATEMENT WITH BACK PAY.  PP. 362-366. 

(A)  SINCE NO CONSIDERATION IS GIVEN TO COLLATERAL LOSSES IN ORDERING
REIMBURSEMENT OF WRONGFULLY DISCHARGED EMPLOYEES FOR THEIR LOST
EARNINGS, NO CONSIDERATION NEED BE GIVEN TO COLLATERAL BENEFITS WHICH
THEY MAY HAVE RECEIVED.  P. 364. 

(B)  UNEMPLOYMENT COMPENSATION PAYMENTS MADE BY A STATE OUT OF FUNDS
DERIVED FROM TAXATION ARE COLLATERAL BENEFITS, SINCE THEY WERE NOT MADE
TO DISCHARGE ANY LIABILITY OR OBLIGATION OF THE EMPLOYER BUT TO CARRY
OUT A POLICY OF SOCIAL BETTERMENT FOR THE BENEFIT OF THE ENTIRE STATE. 
PP. 364-365. 

(C) A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT, UNDER THE
STATE LAW, THE UNEMPLOYMENT COMPENSATION PAYMENTS INCIDENTALLY AFFECT
ADVERSELY THE EMPLOYER'S EXPERIENCE-RATING RECORD AND PREVENT HIM FROM
QUALIFYING FOR A LOWER TAX RATE.  P. 365. 

(D)  THE CONCLUSION HERE REACHED IS SUPPORTED BY THE FACT THAT THE
BOARD HAD FOR MANY YEARS BEEN FOLLOWING THE PRACTICE OF DISALLOWING
DEDUCTIONS FOR COLLATERAL BENEFITS SUCH AS UNEMPLOYMENT COMPENSATION,
AND CONGRESS DID NOT REQUIRE ANY CHANGE IN THAT PRACTICE WHEN IT
AMENDED THE NATIONAL LABOR RELATIONS ACT IN 1947.  PP. 365-366. 

NATIONAL LABOR RELATIONS BOARD V. GULLETT GIN CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE CASE IS STATED IN THE OPINION.  THE JUDGMENT BELOW IS REVERSED,
P. 366. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED HERE IS WHETHER THE NATIONAL LABOR RELATIONS
BOARD MUST DEDUCT FROM BACK-PAY AWARDS TO DISCRIMINATORILY DISCHARGED
EMPLOYEES SUMS PAID TO THEM AS UNEMPLOYMENT COMPENSATION BY A STATE
AGENCY. 

THE BOARD FOUND THAT RESPONDENT GULLETT GIN COMPANY HAD DISCHARGED
CERTAIN EMPLOYEES IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, 61 STAT. 136, 29 U.S.C. (SUPP. III) SECS. 141 ET SEQ., AND
ORDERED THEIR REINSTATEMENT WITH BACK PAY.  ALTHOUGH THE ORDER PROVIDED
FOR DEDUCTION OF THE EMPLOYEES' NET EARNINGS AND WILLFUL LOSSES OF
WAGES, IF ANY, THE BOARD REFUSED TO DEDUCT CERTAIN PAYMENTS MADE BY THE
STATE OF LOUISIANA AS UNEMPLOYMENT COMPENSATION.  THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT HELD SUCH PAYMENTS MUST BE DEDUCTED, AND MODIFIED
THE ORDER ACCORDINGLY.  179 F.2D 499.  WE GRANTED CERTIORARI BECAUSE OF
THE IMPORTANCE OF THE QUESTION PRESENTED IN THE ADMINISTRATION OF THE
ACT.  340 U.S. 806. 

IN ISSUING THE CHALLENGED ORDER THE BOARD ACTED UNDER SEC. 10(C) OF
THE ACT, 61 STAT. 147, 29 U.S.C. (SUPP. III) SEC. 160(C), WHICH
PROVIDES THAT UPON FINDING AN UNFAIR LABOR PRACTICE, THE BOARD SHALL
ISSUE A CEASE AND DESIST ORDER REQUIRING THE GUILTY PARTY "TO TAKE SUCH
AFFIRMATIVE ACTION INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT
BACK PAY, AS WILL EFFECTUATE THE POLICIES OF THIS ACT  ...  " 

TO EFFECTUATE THE POLICIES OF THE ACT THE BOARD HAS BROAD BUT NOT
UNLIMITED DISCRETION.  REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7,
11.  "(THE POWER TO COMMAND AFFIRMATIVE ACTION IS REMEDIAL, NOT
PUNITIVE."  ID., AT 12.  WE MUST NOT, HOWEVER, BE MORE MINDFUL OF THE
LIMITS OF THE BOARD'S DISCRETION THAN WE ARE OF OUR OWN LIMITED
FUNCTION IN REVIEWING BOARD ORDERS.  IN AN OPINION DEALING WITH A
RELATED MATTER THE COURT CAUTIONED: 

"THERE IS AN AREA PLAINLY COVERED BY THE LANGUAGE OF THE ACT AND AN
AREA NO LESS PLAINLY WITHOUT IT.  BUT IN THE NATURE OF THINGS CONGRESS
COULD NOT CATALOGUE ALL THE DEVICES AND STRATAGEMS FOR CIRCUMVENTING
THE POLICIES OF THE ACT.  NOR COULD IT DEFINE THE WHOLE GAMUT OF
REMEDIES TO EFFECTUATE THESE POLICIES IN AN INFINITE VARIETY OF
SPECIFIC SITUATIONS.  CONGRESS MET THESE DIFFICULTIES BY LEAVING THE
ADAPTATION OF MEANS TO END TO THE EMPIRIC PROCESS OF ADMINISTRATION. 
THE EXERCISE OF THE PROCESS WAS COMMITTED TO THE BOARD, SUBJECT TO
LIMITED JUDICIAL REVIEW.  BECAUSE THE RELATION OF REMEDY TO POLICY IS
PECULIARLY A MATTER FOR ADMINISTRATIVE COMPETENCE, COURTS MUST NOT
ENTER THE ALLOWABLE AREA OF THE BOARD'S DISCRETION AND MUST GUARD
AGAINST THE DANGER OF SLIDING UNCONSCIOUSLY FROM THE NARROW CONFINES OF
LAW INTO THE MORE SPACIOUS DOMAIN OF POLICY."  PHELPS DODGE CORP. V.
LABOR BOARD, 313 U.S. 177, 194. 

IN EFFECTUATING THE POLICIES OF THE ACT, THE BOARD CLEARLY MAY AWARD
BACK PAY TO DISCRIMINATORILY DISCHARGED EMPLOYEES.  THIS MEANS THAT
EMPLOYEES MAY BE REIMBURSED FOR EARNINGS LOST BY REASON OF THE WRONGFUL
DISCHARGE, FROM WHICH SHOULD BE DEDUCTED NET EARNINGS OF EMPLOYEES FROM
OTHER EMPLOYMENT DURING THE BACK-PAY PERIOD, REPUBLIC STEEL CASE,
SUPRA, AND ALSO SUMS WHICH THEY FAILED WITHOUT EXCUSE TO EARN, PHELPS
DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 197-198. 

IN MARSHALL FIELD & CO. V. LABOR BOARD, 318 U.S. 253, THIS COURT HELD
THAT THE BENEFITS RECEIVED BY EMPLOYEES UNDER A STATE UNEMPLOYMENT
COMPENSATION ACT WERE PLAINLY NOT EARNINGS WHICH, UNDER THE BOARD'S
ORDER IN THAT CASE, COULD BE DEDUCTED FROM THE BACK PAY AWARDED.  THE
QUESTION OF WHETHER THE BOARD HAD THE POWER TO MAKE SUCH AN ORDER WAS
NOT REACHED FOR THE REASON THAT THE QUESTION HAD NOT BEEN PRESENTED TO
THE BOARD AS REQUIRED BY SEC. 10(E) OF THE NATIONAL LABOR RELATIONS
ACT, 49 STAT. 454, 29 U.S.C. SEC. 160(E).  THE QUESTION IS HERE ON THIS
RECORD, AND WE HOLD THAT THE BOARD HAD THE POWER TO ENTER THE ORDER IN
THIS CASE REFUSING TO DEDUCT THE UNEMPLOYMENT COMPENSATION PAYMENTS
FROM BACK PAY, AND THAT IN SO DOING THE BOARD DID NOT ABUSE ITS
DISCRETION. 

SUCH ACTION MAY REASONABLY BE CONSIDERED TO EFFECTUATE THE POLICIES
OF THE ACT.  TO DECLINE TO DEDUCT STATE UNEMPLOYMENT COMPENSATION
BENEFITS IN COMPUTING BACK PAY IS NOT TO MAKE THE EMPLOYEES MORE THAN
WHOLE, AS CONTENDED BY RESPONDENT.  SINCE NO CONSIDERATION HAS BEEN
GIVEN OR SHOULD BE GIVEN TO COLLATERAL LOSSES IN FRAMING AN ORDER TO
REIMBURSE EMPLOYEES FOR THEIR LOST EARNINGS, MANIFESTLY NO
CONSIDERATION NEED BE GIVEN TO COLLATERAL BENEFITS WHICH EMPLOYEES MAY
HAVE RECEIVED. 

BUT RESPONDENT ARGUES THAT THE BENEFITS PAID FROM THE LOUISIANA
UNEMPLOYMENT COMPENSATION FUND WERE NOT COLLATERAL BUT DIRECT
BENEFITS.  WITH THIS THEORY WE ARE UNABLE TO AGREE.  PAYMENTS OF
UNEMPLOYMENT COMPENSATION WERE NOT MADE TO THE EMPLOYEES BY RESPONDENT
BUT BY THE STATE OUT OF STATE FUNDS DERIVED FROM TAXATION.  TRUE, THESE
TAXES WERE PAID BY EMPLOYERS, AND THUS TO SOME EXTENT RESPONDENT HELPED
TO CREATE THE FUND.  HOWEVER, THE PAYMENTS TO THE EMPLOYEES WERE NOT
MADE TO DISCHARGE ANY LIABILITY OR OBLIGATION OF RESPONDENT, BUT TO
CARRY OUT A POLICY OF SOCIAL BETTERMENT FOR THE BENEFIT OF THE ENTIRE
STATE.  SEE DART'S LA. GEN. STAT., 1939, SEC. 4434.1; IN RE
CASSARETAKIS, 289 N.Y. 119, 126, 44 N.E.2D 391, 394-395, AFF'D SUB NOM.
STANDARD DREDGING CO. V. MURPHY, 319 U.S. 306; UNEMPLOYMENT
COMPENSATION COMMISSION V. COLLINS, 182 VA. 426, 438, 29 S.E.2D 388,
393.  WE THINK THESE FACTS PLAINLY SHOW THE BENEFITS TO BE COLLATERAL. 
IT IS THUS APPARENT FROM WHAT WE HAVE ALREADY SAID THAT FAILURE TO TAKE
THEM INTO ACCOUNT IN ORDERING BACK PAY DOES NOT MAKE THE EMPLOYEES MORE
THAN "WHOLE" AS THAT PHRASE HAS BEEN UNDERSTOOD AND APPLIED.  FN1 

FINALLY, RESPONDENT URGES THAT THE BOARD'S ORDER IMPOSES UPON IT A
PENALTY WHICH IS BEYOND THE REMEDIAL POWERS OF THE BOARD BECAUSE, TO
THE EXTENT THAT UNEMPLOYMENT COMPENSATION BENEFITS WERE PAID TO ITS
DISCHARGED EMPLOYEES, OPERATION OF THE EXPERIENCE-RATING RECORD FORMULA
UNDER THE LOUISIANA ACT, DART'S LA. GEN. STAT., 1939(CUM.  SUPP.  1949)
SECS. 4434.1 ET SEQ., WILL PREVENT RESPONDENT FROM QUALIFYING FOR A
LOWER TAX RATE.  WE DOUBT THAT THE VALIDITY OF A BACK-PAY ORDER OUGHT
TO HINGE ON THE MYRIAD PROVISIONS OF STATE UNEMPLOYMENT COMPENSATION
LAWS.  CF. LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111, 122-124. 
HOWEVER, EVEN IF THE LOUISIANA LAW HAS THE CONSEQUENCE STATED BY
RESPONDENT, WHICH WE ASSUME ARGUENDO, THIS CONSEQUENCE DOES NOT TAKE
THE ORDER WITHOUT THE DISCRETION OF THE BOARD TO ENTER.  WE DEEM THE
DESCRIBED INJURY TO BE MERELY AN INCIDENTAL EFFECT OF AN ORDER WHICH IN
OTHER RESPECTS EFFECTUATES THE POLICIES OF THE FEDERAL ACT.  IT SHOULD
BE EMPHASIZED THAT ANY FAILURE OF RESPONDENT TO QUALIFY FOR A LOWER TAX
RATE WOULD NOT BE PRIMARILY THE RESULT OF FEDERAL BUT OF STATE LAW,
DESIGNED TO EFFECTUATE A PUBLIC POLICY WITH WHICH IT IS NOT THE BOARD'S
FUNCTION TO CONCERN ITSELF.  REPUBLIC STEEL CASE, SUPRA. 

OUR HOLDING IS SUPPORTED BY THE FACT THAT WHEN CONGRESS AMENDED THE
NATIONAL LABOR RELATIONS ACT IN 1947, THE BOARD HAD FOR MANY YEARS BEEN
FOLLOWING THE PRACTICE OF DISALLOWING DEDUCTION FOR COLLATERAL BENEFITS
SUCH AS UNEMPLOYMENT COMPENSATION.  FN2  DURING THIS PERIOD THE BOARD'S
PRACTICE HAD BEEN CHALLENGED BEFORE THE COURTS IN ONLY TWO CASES, AND
IN BOTH THE BOARD'S POSITION WAS SUSTAINED.  LABOR BOARD V. MARSHALL
FIELD & CO., 129 F.2D 169; LABOR BOARD V. BRASHEAR FREIGHT LINES, 127
F.2D 198.  IN THE COURSE OF ADOPTING THE 1947 AMENDMENTS CONGRESS
CONSIDERED IN GREAT DETAIL THE PROVISIONS OF THE EARLIER LEGISLATION AS
THEY HAD BEEN APPLIED BY THE BOARD.  FN3 UNDER THESE CIRCUMSTANCES IT
IS A FAIR ASSUMPTION THAT BY REENACTING WITHOUT PERTINENT MODIFICATION
THE PROVISION WITH WHICH WE HERE DEAL, CONGRESS ACCEPTED THE
CONSTRUCTION PLACED THEREON BY THE BOARD AND APPROVED BY THE COURTS. 
SEE HELVERING V. REYNOLDS CO., 306 U.S. 110, 114-115; BREWSTER V. GAGE,
280 U.S. 327, 337; NORWEGIAN NITROGEN PROD.  CO. V. UNITED STATES, 288
U.S. 294, 313-315. 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED FOR ENFORCEMENT OF THE
BOARD'S ORDER WITHOUT THE OBJECTIONABLE MODIFICATION.  IT IS SO
ORDERED. 

FN1  WE NOTE THAT SOME STATES PERMIT RECOUPMENT OF BENEFITS PAID
DURING A PERIOD FOR WHICH THE NATIONAL LABOR RELATIONS BOARD
SUBSEQUENTLY AWARDS BACK PAY.  E.G., IN RE SKUTNIK, 268 APP. DIV. 357,
51 N.Y.S.2D 711.  RECOUPMENT IN SUCH SITUATIONS IS A MATTER BETWEEN THE
STATE AND THE EMPLOYEES. 

FN2  3 N.L.R.B. ANN. REP. 202, N. 11(1938); 4 N.L.R.B. ANN. REP. 100,
N. 25(1939); 11 N.L.R.B. ANN. REP. 50(1946). 

FN3  AMPLE EVIDENCE OF THIS MAY BE FOUND IN THE COMMITTEE REPORTS
ACCOMPANYING THE BILLS WHICH WERE THE BASIS OF THE COMPREHENSIVE 1947
ACT.  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS.; S. REP. NO. 105,
80TH CONG., 1ST SESS. 

MR. CHIEF JUSTICE VINSON TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :










STANDARD OIL CO. V. TRADE COMM'N, 340 U.S. 231 


NO. 1.  ARGUED JANUARY 9-10, 1950.  - REARGUED OCTOBER 9, 1950.  -
DECIDED JANUARY 8, 1951.  - 173 F.2D 210, REVERSED. 


1.  UNDER SEC. 2(B) OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON
PATMAN ACT, 15 U.S.C. SEC. 13(B), PETITIONER WAS JUSTIFIED IN SELLING
GASOLINE IN INTERSTATE COMMERCE TO FOUR COMPARATIVELY LARGE "JOBBER"
CUSTOMERS IN DETROIT AT 1 1/2 CENTS PER GALLON LESS THAN IT SOLD LIKE
GASOLINE TO MANY COMPARATIVELY SMALL SERVICE STATION CUSTOMERS IN THE
SAME AREA, IF THE LOWER PRICE TO THE "JOBBERS" WAS MADE TO RETAIN EACH
OF THEM AS A CUSTOMER AND IN GOOD FAITH TO MEET A LAWFUL AND EQUALLY
LOW PRICE OF A COMPETITOR - EVEN THOUGH THE EFFECT OF SUCH PRICE
DISCRIMINATION WAS TO INJURE, DESTROY OR PREVENT COMPETITION.  PP. 233
251. 

(A)  THE AMENDMENTS MADE BY THE ROBINSON-PATMAN ACT RESTRICTED THE
SCOPE OF THE DEFENSE NOW PROVIDED BY SEC. 2(B) TO A PRICE REDUCTION
MADE TO MEET IN GOOD FAITH A LAWFUL AND EQUALLY LOW PRICE OF A
COMPETITOR; BUT THEY DID NOT DEPRIVE THIS DEFENSE OF ITS CHARACTER AS
AN ABSOLUTE DEFENSE NOR CONDITION IT UPON THE ABSENCE OF ANY RESULTING
INJURY TO COMPETITION.  PP. 240-251. 

(B)  THIS CONCLUSION IS CONSISTENT WITH CORN PRODUCTS REFINING CO. V.
FEDERAL TRADE COMMISSION, 324 U.S. 726, AND FEDERAL TRADE COMMISSION V.
STALEY MFG. CO., 324 U.S. 746.  PP. 243-246. 

(C)  THERE HAS BEEN A WIDESPREAD UNDERSTANDING THAT, UNDER THE
ROBINSON-PATMAN ACT, IT IS A COMPLETE DEFENSE TO A CHARGE OF PRICE
DISCRIMINATION FOR THE SELLER TO SHOW THAT ITS PRICE DIFFERENTIAL HAS
BEEN MADE IN GOOD FAITH TO MEET A LAWFUL AND EQUALLY LOW PRICE OF A
COMPETITOR; AND THIS COURT SEES NO REASON TO DEPART NOW FROM THAT
INTERPRETATION.  PP. 246-250. 

(D)  CONGRESS DID NOT SEEK BY THE ROBINSON-PATMAN ACT EITHER TO
ABOLISH COMPETITION OR SO RADICALLY TO CURTAIL IT THAT A SELLER WOULD
HAVE NO SUBSTANTIAL RIGHT OF SELF-DEFENSE AGAINST A PRICE RAID BY A
COMPETITOR.  P. 249. 

(E)  IN A CASE WHERE A SELLER SUSTAINS THE BURDEN OF PROOF PLACED
UPON IT TO ESTABLISH ITS DEFENSE UNDER SEC. 2(B), THIS COURT FINDS NO
REASON TO DESTROY THAT DEFENSE INDIRECTLY, MERELY BECAUSE IT ALSO
APPEARS THAT THE BENEFICIARIES OF THE SELLER'S PRICE REDUCTIONS MAY
DERIVE A COMPETITIVE ADVANTAGE FROM THEM OR MAY, IN THE NATURAL COURSE
OF EVENTS, REDUCE THEIR OWN RESALE PRICES TO THEIR CUSTOMERS.  P. 250. 

(F)  THIS COURT REJECTS A CONSTRUCTION OF THE PROVISO OF SEC. 2(B)
WHICH WOULD MAKE THE DEFENSE AFFORDED THEREBY DEPENDENT UPON THE
CONCLUSION WHICH THE COMMISSION MIGHT REACH IN WEIGHING THE POTENTIALLY
INJURIOUS EFFECT OF A SELLER'S PRICE REDUCTION UPON COMPETITION AT ALL
LOWER LEVELS AGAINST ITS BENEFICIAL EFFECT IN PERMITTING THE SELLER TO
MEET COMPETITION AT ITS OWN LEVEL.  P. 251. 

2.  PETITIONER OBTAINS GASOLINE FROM FIELDS IN KANSAS, OKLAHOMA,
TEXAS AND WYOMING, REFINES IT IN INDIANA, AND DISTRIBUTES IT IN 14
MIDDLE WESTERN STATES.  GASOLINE SOLD BY IT IN THE DETROIT AREA IS
CARRIED BY TANKERS ON THE GREAT LAKES FROM INDIANA TO PETITIONER'S
MARINE TERMINAL AT RIVER ROUGE, MICH.  ENOUGH IS ACCUMULATED THERE
DURING EACH NAVIGATION SEASON SO THAT A WINTER'S SUPPLY IS AVAILABLE
FROM THE TERMINAL.  IT REMAINS THERE OR IN NEARBY BULK STORAGE STATIONS
FOR VARYING PERIODS.  WHILE THERE, THE GASOLINE IS OWNED BY PETITIONER
AND EN ROUTE FROM ITS REFINERY IN INDIANA TO ITS MARKET IN MICHIGAN. 
ALTHOUGH THE GASOLINE IS NOT BROUGHT TO RIVER ROUGE PURSUANT TO ORDERS
ALREADY TAKEN, THE DEMANDS OF THE MICHIGAN TERRITORY ARE FAIRLY
CONSTANT, AND THE DEMANDS OF PETITIONER'S CUSTOMERS CAN BE ESTIMATED
ACCURATELY.  GASOLINE SOLD TO CUSTOMERS IN DETROIT IS TAKEN FROM THAT
AT THE TERMINAL.  HELD:  SUCH SALES ARE IN INTERSTATE COMMERCE WITHIN
THE MEANING OF SECS. 1 AND 2 OF THE CLAYTON ACT, AS AMENDED BY THE
ROBINSON-PATMAN ACT, 15 U.S.C. SECS. 12, 13, AND ARE NOT DEPRIVED OF
THEIR INTERSTATE CHARACTER BY SUCH TEMPORARY STORAGE OF THE GASOLINE IN
THE DETROIT AREA.  PP. 236-238. 

3.  THE FEDERAL TRADE COMMISSION INSTITUTED PROCEEDINGS TO CHALLENGE
THE RIGHT OF PETITIONER, UNDER SEC. 2 OF THE CLAYTON ACT, AS AMENDED BY
THE ROBINSON-PATMAN ACT, 15 U.S.C. SEC. 13, TO SELL GASOLINE IN
INTERSTATE COMMERCE TO FOUR COMPARATIVELY LARGE "JOBBER" CUSTOMERS IN
DETROIT AT 1 1/2 CENTS PER GALLON LESS THAN IT SOLD LIKE GASOLINE TO
MANY COMPARATIVELY SMALL SERVICE STATION CUSTOMERS IN THE SAME AREA. 
PETITIONER PRESENTED EVIDENCE TENDING TO PROVE THAT ITS LOWER PRICE TO
EACH "JOBBER" WAS MADE IN ORDER TO RETAIN THAT "JOBBER" AS A CUSTOMER
AND IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF ONE OR MORE
COMPETITORS.  THE COMMISSION HELD AS A MATTER OF LAW THAT SUCH EVIDENCE
WAS NOT MATERIAL, AND IT MADE NO FINDING OF FACT ON THIS QUESTION.  IT
FOUND THAT THE EFFECT OF SUCH PRICE DISCRIMINATIONS WAS TO INJURE,
DESTROY AND PREVENT COMPETITION; AND IT ORDERED PETITIONER TO CEASE AND
DESIST FROM MAKING SUCH A PRICE DIFFERENTIAL.  HELD:  THE COMMISSION
SHOULD HAVE MADE A FINDING AS TO WHETHER OR NOT PETITIONER'S PRICE
REDUCTION WAS MADE IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A
COMPETITOR WITHIN THE MEANING OF SEC. 2(B) OF THE CLAYTON ACT, AS
AMENDED BY THE ROBINSON-PATMAN ACT, 15 U.S.C. SEC. 13(B).  PP. 233
251. 

STANDARD OIL CO. V. FEDERAL TRADE COMMISSION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

THE FEDERAL TRADE COMMISSION ORDERED PETITIONER TO CEASE AND DESIST
FROM SELLING GASOLINE TO FOUR COMPARATIVELY LARGE "JOBBER" CUSTOMERS IN
DETROIT AT A LOWER PRICE THAN IT SOLD LIKE GASOLINE TO MANY
COMPARATIVELY SMALLER SERVICE STATION CUSTOMERS IN THE SAME AREA.  43
F.T.C. 56.  THE COURT OF APPEALS ORDERED ENFORCEMENT OF THE ORDER WITH
A SLIGHT MODIFICATION.  173 F.2D 210.  THIS COURT GRANTED CERTIORARI. 
338 U.S. 865.  REVERSED AND REMANDED, P. 251. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE FEDERAL TRADE COMMISSION CHALLENGED THE RIGHT OF THE
STANDARD OIL COMPANY, UNDER THE ROBINSON-PATMAN ACT,  FN1  TO SELL
GASOLINE TO FOUR COMPARATIVELY LARGE "JOBBER" CUSTOMERS IN DETROIT AT A
LESS PRICE PER GALLON THAN IT SOLD LIKE GASOLINE TO MANY COMPARATIVELY
SMALL SERVICE STATION CUSTOMERS IN THE SAME AREA.  THE COMPANY'S
DEFENSES WERE THAT (1) THE SALES INVOLVED WERE NOT IN INTERSTATE
COMMERCE AND (2) ITS LOWER PRICE TO THE JOBBERS WAS JUSTIFIED BECAUSE
MADE TO RETAIN THEM AS CUSTOMERS AND IN GOOD FAITH TO MEET AN EQUALLY
LOW PRICE OF A COMPETITOR.  FN2  THE COMMISSION, WITH ONE MEMBER
DISSENTING, ORDERED THE COMPANY TO CEASE AND DESIST FROM MAKING SUCH A
PRICE DIFFERENTIAL.  43 F.T.C. 56.  THE COURT OF APPEALS SLIGHTLY
MODIFIED THE ORDER AND REQUIRED ITS ENFORCEMENT AS MODIFIED.  173 F.2D
210.  WE GRANTED CERTIORARI ON PETITION OF THE COMPANY BECAUSE THE CASE
PRESENTS AN IMPORTANT ISSUE UNDER THE ROBINSON-PATMAN ACT WHICH HAS NOT
BEEN SETTLED BY THIS COURT.  338 U.S. 865.  THE CASE WAS ARGUED AT OUR
OCTOBER TERM, 1949, AND REARGUED AT THIS TERM.  339 U.S. 975. 

FOR THE REASONS HEREINAFTER STATED, WE AGREE WITH THE COURT BELOW
THAT THE SALES WERE MADE IN INTERSTATE COMMERCE BUT WE AGREE WITH
PETITIONER THAT, UNDER THE ACT, THE LOWER PRICE TO THE JOBBERS WAS
JUSTIFIED IF IT WAS MADE TO RETAIN EACH OF THEM AS A CUSTOMER AND IN
GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR. 

                              I. FACTS. 

RESERVING FOR SEPARATE CONSIDERATION THE FACTS DETERMINING THE ISSUE
OF INTERSTATE COMMERCE, THE OTHER MATERIAL FACTS ARE SUMMARIZED HERE ON
THE BASIS OF THE COMMISSION'S FINDINGS.  THE SALES DESCRIBED ARE THOSE
OF RED CROWN GASOLINE BECAUSE THOSE SALES RAISE ALL OF THE MATERIAL
ISSUES AND CONSTITUTE ABOUT 90% OF PETITIONER'S SALES IN THE DETROIT
AREA. 

SINCE THE EFFECTIVE DATE OF THE ROBINSON-PATMAN ACT, JUNE 19, 1936,
PETITIONER HAS SOLD ITS RED CROWN GASOLINE TO ITS "JOBBER" CUSTOMERS AT
ITS TANK-CAR PRICES.  THOSE PRICES HAVE BEEN 1 1/2[ PER GALLON LESS
THAN ITS TANK-WAGON PRICES TO SERVICE STATION CUSTOMERS FOR IDENTICAL
GASOLINE IN THE SAME AREA.  IN PRACTICE, THE SERVICE STATIONS HAVE
RESOLD THE GASOLINE AT THE PREVAILING RETAIL SERVICE STATION PRICES. 
FN3  EACH OF PETITIONER'S SO-CALLED "JOBBER" CUSTOMERS HAS BEEN FREE TO
RESELL ITS GASOLINE AT RETAIL OR WHOLESALE.  EACH, AT SOME TIME, HAS
RESOLD SOME OF IT AT RETAIL.  ONE NOW RESELLS IT ONLY AT RETAIL.  THE
OTHERS NOW RESELL IT LARGELY AT WHOLESALE.  AS TO RESALE PRICES, TWO OF
THE "JOBBERS" HAVE RESOLD THEIR GASOLINE ONLY AT THE PREVAILING
WHOLESALE OR RETAIL RATES.  THE OTHER TWO, HOWEVER, HAVE REFLECTED, IN
VARYING DEGREES, PETITIONER'S REDUCTIONS IN THE COST OF THE GASOLINE TO
THEM BY REDUCING THEIR RESALE PRICES OF THAT GASOLINE BELOW THE
PREVAILING RATES.  THE EFFECT OF THESE REDUCTIONS HAS THUS REACHED
COMPETING RETAIL SERVICE STATIONS IN PART THROUGH RETAIL STATIONS
OPERATED BY THE "JOBBERS" AND IN PART THROUGH RETAIL STATIONS WHICH
PURCHASED GASOLINE FROM THE "JOBBERS" AT LESS THAN THE PREVAILING TANK
WAGON PRICES.  THE COMMISSION FOUND THAT SUCH REDUCED RESALE PRICES
"HAVE RESULTED IN INJURING, DESTROYING, AND PREVENTING COMPETITION
BETWEEN SAID FAVORED DEALERS AND RETAIL DEALERS IN RESPONDENT'S
(PETITIONER'S) GASOLINE AND OTHER MAJOR BRANDS OF GASOLINE  ...  "  41
F.T.C. 263, 283.  THE DISTINCTIVE CHARACTERISTICS OF THESE "JOBBERS"
ARE THAT EACH (1) MAINTAINS SUFFICIENT BULK STORAGE TO TAKE DELIVERY OF
GASOLINE IN TANK-CAR QUANTITIES (OF 8,000 TO 12,000 GALLONS) RATHER
THAN IN TANK-WAGON QUANTITIES (OF 700 TO 800 GALLONS) AS IS CUSTOMARY
FOR SERVICE STATIONS; (2) OWNS AND OPERATES TANK WAGONS AND OTHER
FACILITIES FOR DELIVERY OF GASOLINE TO SERVICE STATIONS; (3) HAS AN
ESTABLISHED BUSINESS SUFFICIENT TO INSURE PURCHASES OF FROM ONE TO TWO
MILLION GALLONS A YEAR; AND (4) HAS ADEQUATE CREDIT RESPONSIBILITY. 
FN4  WHILE THE COST OF PETITIONER'S SALES AND DELIVERIES OF GASOLINE TO
EACH OF THESE FOUR "JOBBERS" IS NO DOUBT LESS, PER GALLON, THAN THE
COST OF ITS SALES AND DELIVERIES OF LIKE GASOLINE TO ITS SERVICE
STATION CUSTOMERS IN THE SAME AREA, THERE IS NO FINDING THAT SUCH
DIFFERENCE ACCOUNTS FOR THE ENTIRE REDUCTION IN PRICE MADE BY
PETITIONER TO THESE "JOBBERS," AND WE PROCEED ON THE ASSUMPTION THAT IT
DOES NOT ENTIRELY ACCOUNT FOR THAT DIFFERENCE. 

PETITIONER PLACED ITS RELIANCE UPON EVIDENCE OFFERED TO SHOW THAT ITS
LOWER PRICE TO EACH JOBBER WAS MADE IN ORDER TO RETAIN THAT JOBBER AS A
CUSTOMER AND IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OFFERED BY ONE
OR MORE COMPETITORS.  THE COMMISSION, HOWEVER, TREATED SUCH EVIDENCE AS
NOT RELEVANT. 

           II.  THE SALES WERE MADE IN INTERSTATE COMMERCE. 

IN ORDER FOR THE SALES HERE INVOLVED TO COME UNDER THE CLAYTON ACT,
AS AMENDED BY THE ROBINSON-PATMAN ACT, THEY MUST HAVE BEEN MADE IN
INTERSTATE COMMERCE.  FN5  THE COMMISSION AND THE COURT BELOW AGREE
THAT THE SALES WERE SO MADE.  41 F.T.C. 263, 271, 173 F.2D 210, 213
214. 

FACTS DETERMINING THIS WERE FOUND BY THE COMMISSION AS FOLLOWS:
PETITIONER IS AN INDIANA CORPORATION, WHOSE PRINCIPAL OFFICE IS IN
CHICAGO.  ITS GASOLINE IS OBTAINED FROM FIELDS IN KANSAS, OKLAHOMA,
TEXAS AND WYOMING.  ITS REFINING PLANT IS AT WHITING, INDIANA.  IT
DISTRIBUTES ITS PRODUCTS IN 14 MIDDLE WESTERN STATES, INCLUDING
MICHIGAN.  THE GASOLINE SOLD BY IT IN THE DETROIT, MICHIGAN, AREA, AND
INVOLVED IN THIS CASE, IS CARRIED FOR PETITIONER BY TANKERS ON THE
GREAT LAKES FROM INDIANA TO PETITIONER'S MARINE TERMINAL AT RIVER
ROUGE, MICHIGAN.  ENOUGH GASOLINE IS ACCUMULATED THERE DURING EACH
NAVIGATION SEASON SO THAT A WINTER'S SUPPLY IS AVAILABLE FROM THE
TERMINAL.  THE GASOLINE REMAINS FOR VARYING PERIODS AT THE TERMINAL OR
IN NEARBY BULK STORAGE STATIONS, AND WHILE THERE IT IS UNDER THE
OWNERSHIP OF PETITIONER AND EN ROUTE FROM PETITIONER'S REFINERY IN
INDIANA TO ITS MARKET IN MICHIGAN.  "ALTHOUGH THE GASOLINE WAS NOT
BROUGHT TO RIVER ROUGE PURSUANT TO ORDERS ALREADY TAKEN, THE DEMANDS OF
THE MICHIGAN TERRITORY WERE FAIRLY CONSTANT, AND THE PETITIONER'S
CUSTOMERS' DEMANDS COULD BE ACCURATELY ESTIMATED, SO THE FLOW OF THE
STREAM OF COMMERCE KEPT SURGING FROM WHITING TO DETROIT."  173 F.2D AT
213-214.  GASOLINE DELIVERED TO CUSTOMERS IN DETROIT, UPON INDIVIDUAL
ORDERS FOR IT, IS TAKEN FROM THE GASOLINE AT THE TERMINAL IN INTERSTATE
COMMERCE EN ROUTE FOR DELIVERY IN THAT AREA.  SUCH SALES ARE WELL
WITHIN THE JURISDICTIONAL REQUIREMENTS OF THE ACT.  ANY OTHER
CONCLUSION WOULD FALL SHORT OF THE RECOGNIZED PURPOSE OF THE ROBINSON
PATMAN ACT TO REACH THE OPERATIONS OF LARGE INTERSTATE BUSINESSES IN
COMPETITION WITH SMALL LOCAL CONCERNS.  SUCH TEMPORARY STORAGE OF THE
GASOLINE AS OCCURS WITHIN THE DETROIT AREA DOES NOT DEPRIVE THE
GASOLINE OF ITS INTERSTATE CHARACTER.  STAFFORD V. WALLACE, 258 U.S.
495.  COMPARE WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564, 570,
WITH ATLANTIC COAST LINE R. CO. V. STANDARD OIL CO., 275 U.S. 257,
268.  FN6

           III.  THERE SHOULD BE A FINDING AS TO WHETHER OR

             NOT PETITIONER'S PRICE REDUCTION WAS MADE IN

                  GOOD FAITH TO MEET A LAWFUL EQUALLY

                      LOW PRICE OF A COMPETITOR. 

PETITIONER PRESENTED EVIDENCE TENDING TO PROVE THAT ITS TANK-CAR
PRICE WAS MADE TO EACH "JOBBER" IN ORDER TO RETAIN THAT "JOBBER" AS A
CUSTOMER AND IN GOOD FAITH TO MEET A LAWFUL AND EQUALLY LOW PRICE OF A
COMPETITOR.  PETITIONER SOUGHT TO SHOW THAT IT SUCCEEDED IN RETAINING
THESE CUSTOMERS, ALTHOUGH THE TANK-CAR PRICE WHICH IT OFFERED THEM
MERELY APPROACHED OR MATCHED, AND DID NOT UNDERCUT, THE LOWER PRICES
OFFERED THEM BY SEVERAL COMPETITORS OF PETITIONER.  THE TRIAL EXAMINER
MADE FINDINGS ON THE POINT  FN7  BUT THE COMMISSION DECLINED TO DO SO,
SAYING: 

"BASED ON THE RECORD IN THIS CASE THE COMMISSION CONCLUDES AS A MATTER
OF LAW THAT IT IS NOT MATERIAL WHETHER THE DISCRIMINATIONS IN PRICE
GRANTED BY THE RESPONDENT TO THE SAID FOUR DEALERS WERE MADE TO MEET
EQUALLY LOW PRICES OF COMPETITORS.  THE COMMISSION FURTHER CONCLUDES AS
A MATTER OF LAW THAT IT IS UNNECESSARY FOR THE COMMISSION TO DETERMINE
WHETHER THE ALLEGED COMPETITIVE PRICES WERE IN FACT AVAILABLE OR
INVOLVED GASOLINE OF LIKE GRADE OR QUALITY OR OF EQUAL PUBLIC
ACCEPTANCE.  ACCORDINGLY THE COMMISSION DOES NOT ATTEMPT TO FIND THE
FACTS REGARDING THOSE MATTERS BECAUSE, EVEN THOUGH THE LOWER PRICES IN
QUESTION MAY HAVE BEEN MADE BY RESPONDENT IN GOOD FAITH TO MEET THE
LOWER PRICES OF COMPETITORS, THIS DOES NOT CONSTITUTE A DEFENSE IN THE
FACE OF AFFIRMATIVE PROOF THAT THE EFFECT OF THE DISCRIMINATION WAS TO
INJURE, DESTROY AND PREVENT COMPETITION WITH THE RETAIL STATIONS
OPERATED BY THE SAID NAMED DEALERS AND WITH STATIONS OPERATED BY THEIR
RETAILER-CUSTOMERS."  41 F.T.C. 263, 281-282. 

THE COURT BELOW AFFIRMED THE COMMISSION'S POSITION.  FN8 

THERE IS NO DOUBT THAT UNDER THE CLAYTON ACT, BEFORE ITS AMENDMENT BY
THE ROBINSON-PATMAN ACT, THIS EVIDENCE WOULD HAVE BEEN MATERIAL AND, IF
ACCEPTED, WOULD HAVE ESTABLISHED A COMPLETE DEFENSE TO THE CHARGE OF
UNLAWFUL DISCRIMINATION.  AT THAT TIME THE MATERIAL PROVISIONS OF SEC.
2 WERE AS FOLLOWS: 

"SEC. 2.  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN
COMMERCE, IN THE COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR INDIRECTLY
TO DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES
...  WHERE THE EFFECT OF SUCH DISCRIMINATION MAY BE TO SUBSTANTIALLY
LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY LINE OF
COMMERCE:  PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL PREVENT
DISCRIMINATION IN PRICE BETWEEN PURCHASERS OF COMMODITIES ON ACCOUNT OF
DIFFERENCES IN THE GRADE, QUALITY, OR QUANTITY OF THE COMMODITY SOLD,
OR THAT MAKES ONLY DUE ALLOWANCE FOR DIFFERENCE IN THE COST OF SELLING
OR TRANSPORTATION, OR DISCRIMINATION IN PRICE IN THE SAME OR DIFFERENT
COMMUNITIES MADE IN GOOD FAITH TO MEET COMPETITION:  AND PROVIDED
FURTHER, THAT NOTHING HEREIN CONTAINED SHALL PREVENT PERSONS ENGAGED IN
SELLING GOODS, WARES, OR MERCHANDISE IN COMMERCE FROM SELECTING THEIR
OWN CUSTOMERS IN BONA FIDE TRANSACTIONS AND NOT IN RESTRAINT OF
TRADE."  38 STAT. 730-731, 15 U.S.C. (1934 ED.)  SEC.  13. 

THE QUESTION BEFORE US, THEREFORE, IS WHETHER THE AMENDMENTS MADE BY
THE ROBINSON-PATMAN ACT DEPRIVED THOSE FACTS OF THEIR PREVIOUSLY
RECOGNIZED EFFECTIVENESS AS A DEFENSE.  THE MATERIAL PROVISIONS OF SEC.
2, AS AMENDED, ARE QUOTED BELOW, SHOWING IN ITALICS THOSE CLAUSES WHICH
BEAR UPON THE PROVISO BEFORE US.  THE MODIFIED PROVISIONS ARE
DISTRIBUTED BETWEEN THE NEWLY CREATED SUBSECTIONS (A) AND (B).  THESE
MUST BE READ TOGETHER AND IN RELATION TO THE PROVISIONS THEY
SUPERSEDE.  THE ORIGINAL PHRASE "THAT NOTHING HEREIN CONTAINED SHALL
PREVENT" IS STILL USED TO INTRODUCE EACH OF THE DEFENSES.  THE DEFENSE
RELATING TO THE MEETING OF THE PRICE OF A COMPETITOR APPEARS ONLY IN
SUBSECTION (B).  THERE IT IS APPLIED TO DISCRIMINATIONS IN SERVICES OR
FACILITIES AS WELL AS TO DISCRIMINATIONS IN PRICE, WHICH ALONE ARE
EXPRESSLY CONDEMNED IN SUBSECTION (A).  IN ITS OPINION IN THE INSTANT
CASE, THE COMMISSION RECOGNIZES THAT IT IS AN ABSOLUTE DEFENSE TO A
CHARGE OF PRICE DISCRIMINATION FOR A SELLER TO PROVE, UNDER SEC. 2(A),
THAT ITS PRICE DIFFERENTIAL MAKES ONLY DUE ALLOWANCES FOR DIFFERENCES
IN COST OR FOR PRICE CHANGES MADE IN RESPONSE TO CHANGING MARKET
CONDITIONS.  41 F.T.C. AT 283.  EACH OF THESE THREE DEFENSES IS
INTRODUCED BY THE SAME PHRASE "NOTHING  ...  SHALL PREVENT," AND ALL
ARE EMBRACED IN THE SAME WORD "JUSTIFICATION" IN THE FIRST SENTENCE OF
SEC. 2(B).  IT IS NATURAL, THEREFORE, TO CONCLUDE THAT EACH OF THESE
DEFENSES IS ENTITLED TO THE SAME EFFECT, WITHOUT REGARD TO WHETHER
THERE ALSO APPEARS AN AFFIRMATIVE SHOWING OF ACTUAL OR POTENTIAL INJURY
TO COMPETITION AT THE SAME OR A LOWER LEVEL TRACEABLE TO THE PRICE
DIFFERENTIAL MADE BY THE SELLER.  THE COMMISSION SAYS, HOWEVER, THAT
THE PROVISO IN SEC. 2(B) AS TO A SELLER MEETING IN GOOD FAITH A LOWER
COMPETITIVE PRICE IS NOT AN ABSOLUTE DEFENSE IF AN INJURY TO
COMPETITION MAY RESULT FROM SUCH PRICE REDUCTION.  WE FIND NO BASIS FOR
SUCH A DISTINCTION BETWEEN THE DEFENSES IN SEC. 2(A) AND (B). 

THE DEFENSE IN SUBSECTION (B), NOW BEFORE US, IS LIMITED TO A PRICE
REDUCTION MADE TO MEET IN GOOD FAITH AN EQUALLY LOW PRICE OF A
COMPETITOR.  IT THUS ELIMINATES CERTAIN DIFFICULTIES WHICH AROSE UNDER
THE ORIGINAL CLAYTON ACT.  FOR EXAMPLE, IT OMITS REFERENCE TO
DISCRIMINATIONS IN PRICE "IN THE SAME OR DIFFERENT COMMUNITIES  ...  "
AND IT THUS RESTRICTS THE PROVISO TO PRICE DIFFERENTIALS OCCURRING IN
ACTUAL COMPETITION.  IT ALSO EXCLUDES REDUCTIONS WHICH UNDERCUT THE
"LOWER PRICE" OF A COMPETITOR.  NONE OF THESE CHANGES, HOWEVER, CUT
INTO THE ACTUAL CORE OF THE DEFENSE.  THAT STILL CONSISTS OF THE
PROVISION THAT WHEREVER A LAWFUL LOWER PRICE OF A COMPETITOR THREATENS
TO DEPRIVE A SELLER OF A CUSTOMER, THE SELLER, TO RETAIN THAT CUSTOMER,
MAY IN GOOD FAITH MEET THAT LOWER PRICE.  ACTUAL COMPETITION, AT LEAST
IN THIS ELEMENTAL FORM, IS THUS PRESERVED.    SUBSECTIONS 2(A) AND (B),
AS AMENDED, ARE AS FOLLOWS:    "SEC. 2.  (A)  THAT IT SHALL BE UNLAWFUL
FOR ANY PERSON ENGAGED IN COMMERCE, IN THE COURSE OF SUCH COMMERCE,
EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE IN PRICE BETWEEN
DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND QUALITY  ...
WHERE 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:   ...  AND PROVIDED FURTHER, THAT
NOTHING HEREIN CONTAINED SHALL PREVENT PRICE CHANGES FROM TIME TO TIME
...  IN RESPONSE TO CHANGING CONDITIONS AFFECTING THE MARKET FOR OR THE
MARKETABILITY OF THE GOODS CONCERNED  ... 

"(B)  UPON PROOF BEING MADE, AT ANY HEARING ON A COMPLAINT UNDER THIS
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."  49 STAT. 1526, 15 U.S.C. SEC.
13(A) AND (B). 

THIS RIGHT OF A SELLER, UNDER SEC. 2(B), TO MEET IN GOOD FAITH AN
EQUALLY LOW PRICE OF A COMPETITOR HAS BEEN CONSIDERED HERE BEFORE. 
BOTH IN CORN PRODUCTS REFINING CO. V. FEDERAL TRADE COMM'N, 324 U.S.
726, AND IN FEDERAL TRADE COMM'N V. STALEY MFG. CO., 324 U.S. 746,
EVIDENCE IN SUPPORT OF THIS DEFENSE WAS REVIEWED AT LENGTH.  THERE
WOULD HAVE BEEN NO OCCASION THUS TO REVIEW IT UNDER THE THEORY NOW
CONTENDED FOR BY THE COMMISSION.  WHILE THIS COURT DID NOT SUSTAIN THE
SELLER'S DEFENSE IN EITHER CASE, IT DID UNQUESTIONABLY RECOGNIZE THE
RELEVANCE OF THE EVIDENCE IN SUPPORT OF THAT DEFENSE.  THE DECISION IN
EACH CASE WAS BASED UPON THE INSUFFICIENCY OF THE SELLER'S EVIDENCE TO
ESTABLISH ITS DEFENSE, NOT UPON THE INADEQUACY OF ITS DEFENSE AS A
MATTER OF LAW.  FN9 

IN THE CORN PRODUCTS CASE, SUPRA, AFTER RECOGNIZING THAT THE SELLER
HAD ALLOWED DIFFERENTIALS IN PRICE IN FAVOR OF CERTAIN CUSTOMERS, THIS
COURT EXAMINED THE EVIDENCE PRESENTED BY THE SELLER TO SHOW THAT SUCH
DIFFERENTIALS WERE JUSTIFIED BECAUSE MADE IN GOOD FAITH TO MEET EQUALLY
LOW PRICES OF A COMPETITOR.  IT THEN SAID: 

"EXAMINATION OF THE TESTIMONY SATISFIES US, AS IT DID THE COURT
BELOW, THAT IT WAS INSUFFICIENT TO SUSTAIN A FINDING THAT THE LOWER
PRICES ALLOWED TO FAVORED CUSTOMERS WERE IN FACT MADE TO MEET
COMPETITION.  HENCE PETITIONERS FAILED TO SUSTAIN THE BURDEN OF SHOWING
THAT THE PRICE DISCRIMINATIONS WERE GRANTED FOR THE PURPOSE OF MEETING
COMPETITION."  324 U.S. AT 741.  FN10 

IN THE STALEY CASE, SUPRA, MOST OF THE COURT'S OPINION IS DEVOTED TO
THE CONSIDERATION OF THE EVIDENCE INTRODUCED IN SUPPORT OF THE SELLER'S
DEFENSE UNDER SEC. 2(B).  THE DISCUSSION PROCEEDS UPON THE ASSUMPTION,
APPLICABLE HERE, THAT IF A COMPETITOR'S "LOWER PRICE" IS A LAWFUL
INDIVIDUAL PRICE OFFERED TO ANY OF THE SELLER'S CUSTOMERS, THEN THE
SELLER IS PROTECTED, UNDER SEC. 2(B), IN MAKING A COUNTEROFFER PROVIDED
THE SELLER PROVES THAT ITS COUNTEROFFER IS MADE TO MEET IN GOOD FAITH
ITS COMPETITOR'S EQUALLY LOW PRICE.  ON THE RECORD IN THE STALEY CASE,
A MAJORITY OF THE COURT OF APPEALS, IN FACT, DECLINED TO ACCEPT THE
FINDINGS OF THE COMMISSION AND DECIDED IN FAVOR OF THE ACCUSED SELLER. 
FN11  THIS COURT, ON REVIEW, REVERSED THAT JUDGMENT BUT EMPHATICALLY
RECOGNIZED THE AVAILABILITY OF THE SELLER'S DEFENSE UNDER SEC. 2(B) AND
THE OBLIGATION OF THE COMMISSION TO MAKE FINDINGS UPON ISSUES MATERIAL
TO THAT DEFENSE.  IT SAID: 

"CONGRESS HAS LEFT TO THE COMMISSION THE DETERMINATION OF FACT IN
EACH CASE WHETHER THE PERSON, CHARGED WITH MAKING DISCRIMINATORY
PRICES, ACTED IN GOOD FAITH TO MEET A COMPETITOR'S EQUALLY LOW PRICES. 
THE DETERMINATION OF THIS FACT FROM THE EVIDENCE IS FOR THE
COMMISSION.  SEE FEDERAL TRADE COMMISSION V. PACIFIC STATES PAPER TRADE
ASSN., 273 U.S. 52, 63; FEDERAL TRADE COMMISSION V. ALGOMA LUMBER CO.,
291 U.S. 67, 73.  IN THE PRESENT CASE, THE COMMISSION'S FINDING THAT
RESPONDENTS' PRICE DISCRIMINATIONS WERE NOT MADE TO MEET A 'LOWER'
PRICE AND CONSEQUENTLY WERE NOT IN GOOD FAITH, IS AMPLY SUPPORTED BY
THE RECORD, AND WE THINK THE COURT OF APPEALS ERRED IN SETTING ASIDE
THIS PORTION OF THE COMMISSION'S ORDER TO CEASE AND DESIST. 

     .         .         .         .       . 

"IN APPRAISING THE EVIDENCE, THE COMMISSION RECOGNIZED THAT THE
STATUTE DOES NOT PLACE AN IMPOSSIBLE BURDEN UPON SELLERS, BUT IT
EMPHASIZED THE GOOD FAITH REQUIREMENT OF THE STATUTE, WHICH PLACES THE
BURDEN OF PROVING GOOD FAITH ON THE SELLER, WHO HAS MADE THE
DISCRIMINATORY PRICES.  ... 

"  ...  WE AGREE WITH THE COMMISSION THAT THE STATUTE AT LEAST
REQUIRES THE SELLER, WHO HAS KNOWINGLY DISCRIMINATED IN PRICE, TO SHOW
THE EXISTENCE OF FACTS WHICH WOULD LEAD A REASONABLE AND PRUDENT PERSON
TO BELIEVE THAT THE GRANTING OF A LOWER PRICE WOULD IN FACT MEET THE
EQUALLY LOW PRICE OF A COMPETITOR.  NOR WAS THE COMMISSION WRONG IN
HOLDING THAT RESPONDENTS FAILED TO MEET THIS BURDEN."  324 U.S. AT 758,
759-760. 

SEE ALSO, FEDERAL TRADE COMM'N V. CEMENT INSTITUTE, 333 U.S. 683, 721
726; FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37, 43; AND
UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 92.  ALL THAT
PETITIONER ASKS IN THE INSTANT CASE IS THAT ITS EVIDENCE BE CONSIDERED
AND THAT FINDINGS BE MADE BY THE COMMISSION AS TO THE SUFFICIENCY OF
THAT EVIDENCE TO SUPPORT PETITIONER'S DEFENSE UNDER SEC. 2(B). 

IN ADDITION, THERE HAS BEEN WIDESPREAD UNDERSTANDING THAT, UNDER THE
ROBINSON-PATMAN ACT, IT IS A COMPLETE DEFENSE TO A CHARGE OF PRICE
DISCRIMINATION FOR THE SELLER TO SHOW THAT ITS PRICE DIFFERENTIAL HAS
BEEN MADE IN GOOD FAITH TO MEET A LAWFUL AND EQUALLY LOW PRICE OF A
COMPETITOR.  THIS UNDERSTANDING IS REFLECTED IN ACTIONS AND STATEMENTS
OF MEMBERS AND COUNSEL OF THE FEDERAL TRADE COMMISSION.  FN12
REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE HAVE TESTIFIED TO THE
EFFECTIVENESS AND VALUE OF THE DEFENSE UNDER THE ROBINSON-PATMAN ACT. 
FN13  WE SEE NO REASON TO DEPART NOW FROM THAT INTERPRETATION.  FN14 

THE HEART OF OUR NATIONAL ECONOMIC POLICY LONG HAS BEEN FAITH IN THE
VALUE OF COMPETITION.  IN THE SHERMAN AND CLAYTON ACTS, AS WELL AS IN
THE ROBINSON-PATMAN ACT, "CONGRESS WAS DEALING WITH COMPETITION, WHICH
IT SOUGHT TO PROTECT, AND MONOPOLY, WHICH IT SOUGHT TO PREVENT." 
STALEY MFG. CO. V. FEDERAL TRADE COMM'N, 135 F.2D 453, 455.  WE NEED
NOT NOW RECONCILE, IN ITS ENTIRETY, THE ECONOMIC THEORY WHICH UNDERLIES
THE ROBINSON-PATMAN ACT WITH THAT OF THE SHERMAN AND CLAYTON ACTS. 
FN15  IT IS ENOUGH TO SAY THAT CONGRESS DID NOT SEEK BY THE ROBINSON
PATMAN ACT EITHER TO ABOLISH COMPETITION OR SO RADICALLY TO CURTAIL IT
THAT A SELLER WOULD HAVE NO SUBSTANTIAL RIGHT OF SELF-DEFENSE AGAINST A
PRICE RAID BY A COMPETITOR.  FOR EXAMPLE, IF A LARGE CUSTOMER REQUESTS
HIS SELLER TO MEET A TEMPTINGLY LOWER PRICE OFFERED TO HIM BY ONE OF
HIS SELLER'S COMPETITORS, THE SELLER MAY WELL FIND IT ESSENTIAL, AS A
MATTER OF BUSINESS SURVIVAL, TO MEET THAT PRICE RATHER THAN TO LOSE THE
CUSTOMER.  IT MIGHT BE THAT THIS CUSTOMER IS THE SELLER'S ONLY
AVAILABLE MARKET FOR THE MAJOR PORTION OF THE SELLER'S PRODUCT, AND
THAT THE LOSS OF THIS CUSTOMER WOULD RESULT IN FORCING A MUCH HIGHER
UNIT COST AND HIGHER SALES PRICE UPON THE SELLER'S OTHER CUSTOMERS. 
THERE IS NOTHING TO SHOW A CONGRESSIONAL PURPOSE, IN SUCH A SITUATION,
TO COMPEL THE SELLER TO CHOOSE ONLY BETWEEN RUINOUSLY CUTTING ITS
PRICES TO ALL ITS CUSTOMERS TO MATCH THE PRICE OFFERED TO ONE, OR
REFUSING TO MEET THE COMPETITION AND THEN RUINOUSLY RAISING ITS PRICES
TO ITS REMAINING CUSTOMERS TO COVER INCREASED UNIT COSTS.  THERE IS, ON
THE OTHER HAND, PLAIN LANGUAGE AND ESTABLISHED PRACTICE WHICH PERMITS A
SELLER, THROUGH SEC. 2(B), TO RETAIN A CUSTOMER BY REALISTICALLY
MEETING IN GOOD FAITH THE PRICE OFFERED TO THAT CUSTOMER, WITHOUT
NECESSARILY CHANGING THE SELLER'S PRICE TO ITS OTHER CUSTOMERS. 

IN A CASE WHERE A SELLER SUSTAINS THE BURDEN OF PROOF PLACED UPON IT
TO ESTABLISH ITS DEFENSE UNDER SEC. 2(B), WE FIND NO REASON TO DESTROY
THAT DEFENSE INDIRECTLY, MERELY BECAUSE IT ALSO APPEARS THAT THE
BENEFICIARIES OF THE SELLER'S PRICE REDUCTIONS MAY DERIVE A COMPETITIVE
ADVANTAGE FROM THEM OR MAY, IN A NATURAL COURSE OF EVENTS, REDUCE THEIR
OWN RESALE PRICES TO THEIR CUSTOMERS.  IT MUST HAVE BEEN OBVIOUS TO
CONGRESS THAT ANY PRICE REDUCTION TO ANY DEALER MAY ALWAYS AFFECT
COMPETITION AT THAT DEALER'S LEVEL AS WELL AS AT THE DEALER'S RESALE
LEVEL, WHETHER OR NOT THE REDUCTION TO THE DEALER IS DISCRIMINATORY. 
LIKEWISE, IT MUST HAVE BEEN OBVIOUS TO CONGRESS THAT ANY PRICE
REDUCTIONS INITIATED BY A SELLER'S COMPETITOR WOULD, IF NOT MET BY THE
SELLER, AFFECT COMPETITION AT THE BENEFICIARY'S LEVEL OR AMONG THE
BENEFICIARY'S CUSTOMERS JUST AS MUCH AS IF THOSE REDUCTIONS HAD BEEN
MET BY THE SELLER.  THE PROVISO IN SEC. 2(B), AS INTERPRETED BY THE
COMMISSION, WOULD NOT BE AVAILABLE WHEN THERE WAS OR MIGHT BE AN INJURY
TO COMPETITION AT A RESALE LEVEL.  SO INTERPRETED, THE PROVISO WOULD
HAVE SUCH LITTLE, IF ANY, APPLICABILITY AS TO BE PRACTICALLY
MEANINGLESS.  WE MAY, THEREFORE, CONCLUDE THAT CONGRESS MEANT TO PERMIT
THE NATURAL CONSEQUENCES TO FOLLOW THE SELLER'S ACTION IN MEETING IN
GOOD FAITH A LAWFUL AND EQUALLY LOW PRICE OF ITS COMPETITOR. 

IN ITS ARGUMENT HERE, THE COMMISSION SUGGESTS THAT THERE MAY BE SOME
SITUATIONS IN WHICH IT MIGHT RECOGNIZE THE PROVISO IN SEC. 2(B) AS A
COMPLETE DEFENSE, EVEN THOUGH THE SELLER'S DIFFERENTIAL IN PRICE DID
INJURE COMPETITION.  IN SUPPORT OF THIS, THE COMMISSION INDICATES THAT
IN EACH CASE IT MUST WEIGH THE POTENTIALLY INJURIOUS EFFECT OF A
SELLER'S PRICE REDUCTION UPON COMPETITION AT ALL LOWER LEVELS AGAINST
ITS BENEFICIAL EFFECT IN PERMITTING THE SELLER TO MEET COMPETITION AT
ITS OWN LEVEL.  IN THE ABSENCE OF MORE EXPLICIT REQUIREMENTS AND MORE
SPECIFIC STANDARDS OF COMPARISON THAN WE HAVE HERE, IT IS DIFFICULT TO
SEE HOW AN INJURY TO COMPETITION AT A LEVEL BELOW THAT OF THE SELLER
CAN THUS BE BALANCED FAIRLY AGAINST A JUSTIFICATION FOR MEETING THE
COMPETITION AT THE SELLER'S LEVEL.  WE HESITATE TO ACCEPT SEC. 2(B) AS
ESTABLISHING SUCH A DUBIOUS DEFENSE.  ON THE OTHER HAND, THE PROVISO IS
READILY UNDERSTANDABLE AS SIMPLY CONTINUING IN EFFECT A DEFENSE WHICH
IS EQUALLY ABSOLUTE, BUT MORE LIMITED IN SCOPE THAN THAT WHICH EXISTED
UNDER SEC. 2 OF THE ORIGINAL CLAYTON ACT. 

THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS REVERSED AND
THE CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND IT TO
THE FEDERAL TRADE COMMISSION TO MAKE FINDINGS IN CONFORMITY WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  SPECIFICALLY UNDER SEC. 2 OF THE CLAYTON ACT, AS AMENDED BY THE
ROBINSON-PATMAN ACT, 49 STAT. 1526, 15 U.S.C. SEC. 13.  FOR THE
MATERIAL TEXT OF SEC. 2(A) AND (B) SEE PP. 242-243, INFRA. 

FN2  THE COMPANY CONTENDED BEFORE THE COMMISSION THAT THE PRICE
DIFFERENTIAL ALLOWED BY IT TO THE JOBBERS MADE ONLY DUE ALLOWANCE FOR
DIFFERENCES IN THE COST OF SALE AND DELIVERY OF GASOLINE TO THEM.  IT
DID NOT, HOWEVER, PURSUE THIS DEFENSE IN THE COURT BELOW AND DOES NOT
DO SO HERE. 

FN3  ABOUT 150 OF THESE STATIONS ARE OWNED OR LEASED BY THE CUSTOMERS
INDEPENDENTLY OF PETITIONER.  THEIR OPERATORS BUY ALL OF THEIR GASOLINE
FROM PETITIONER UNDER SHORT-TERM AGREEMENTS.  THE OTHER 208 STATIONS
ARE LEASED OR SUBLEASED FROM PETITIONER FOR SHORT TERMS. 

FN4  NOT DENYING THE ESTABLISHED INDUSTRY PRACTICE OF RECOGNIZING
SUCH DEALERS AS A DISTINCTIVE GROUP FOR OPERATIONAL CONVENIENCE, THE
COMMISSION HELD THAT PETITIONER'S CLASSIFICATION OF THESE FOUR DEALERS
AS "JOBBERS" WAS ARBITRARY BECAUSE IT MADE "NO REQUIREMENT THAT SAID
JOBBERS SHOULD SELL ONLY AT WHOLESALE."  41 F.T.C. AT 273.  WE USE THE
TERM "JOBBER" IN THIS OPINION MERELY AS ONE OF CONVENIENCE AND
IDENTIFICATION, BECAUSE THE RESULT HERE IS THE SAME WHETHER THESE FOUR
DEALERS ARE WHOLESALERS OR RETAILERS. 

FN5  SECTION 2(A) OF THE CLAYTON ACT, AS AMENDED, RELATES ONLY TO
PERSONS "ENGAGED IN COMMERCE, IN THE COURSE OF SUCH COMMERCE  ...
WHERE EITHER OR ANY OF THE PURCHASES INVOLVED  ...  ARE IN COMMERCE
...  "  49 STAT. 1526, 15 U.S.C. SEC. 13(A).  "COMMERCE" IS DEFINED IN
SEC. 1 OF THE CLAYTON ACT AS INCLUDING "TRADE OR COMMERCE AMONG THE
SEVERAL STATES  ...  "  38 STAT. 730, 15 U.S.C. SEC. 12.    FN6  THE
FAIR LABOR STANDARDS ACT CASES RELIED ON BY PETITIONER ARE NOT
INCONSISTENT WITH THIS RESULT.  THEY HOLD THAT, FOR THE PURPOSES OF
THAT STATUTE, INTERSTATE COMMERCE CEASED ON DELIVERY TO A LOCAL
DISTRIBUTOR.  HIGGINS V. CARR BROS. CO., 317 U.S. 572; WALLING V.
JACKSONVILLE PAPER CO., SUPRA.  THE SALES INVOLVED HERE, ON THE OTHER
HAND, ARE THOSE OF AN INTERSTATE PRODUCER AND REFINER TO A LOCAL
DISTRIBUTOR. 

FN7  THE TRIAL EXAMINER CONCLUDED: 

"THE RECOGNITION BY RESPONDENT (PETITIONER) OF NED'S AUTO SUPPLY
COMPANY AS A JOBBER OR WHOLESALER (WHICH CARRIED WITH IT THE TANK-CAR
PRICE FOR GASOLINE), WAS A FORCED RECOGNITION GIVEN TO RETAIN THAT
COMPANY'S BUSINESS.  NED'S COMPANY AT THE TIME OF RECOGNITION, AND EVER
SINCE, HAS POSSESSED ALL QUALIFICATIONS REQUIRED BY RESPONDENT
(PETITIONER) FOR RECOGNITION AS A JOBBER AND THE RECOGNITION WAS GIVEN
AND HAS EVER SINCE BEEN CONTINUED IN TRANSACTIONS BETWEEN THE PARTIES,
BELIEVED BY THEM TO BE BONA FIDE IN ALL RESPECTS  ...  "  (CONCLUSION
OF FACT 2, UNDER SEC. IX, R. 5098-5099.) 

"THE DIFFERENTIALS ON ITS BRANDED GASOLINES RESPONDENT (PETITIONER)
GRANTED NED'S AUTO SUPPLY COMPANY, AT ALL TIMES SUBSEQUENT TO MARCH 7,
1938, AND STIKEMAN OIL COMPANY, CITRIN-KOLB OIL COMPANY AND THE WAYNE
COMPANY (THE FOUR JOBBERS), AT ALL TIMES SUBSEQUENT TO JUNE 19, 1936,
WERE GRANTED TO MEET EQUALLY LOW PRICES OFFERED BY COMPETITORS ON
BRANDED GASOLINES OF COMPARABLE GRADE AND QUALITY."  (CONCLUSION OF
FACT, UNDER SEC. XR. 5104.) 

FN8  "NOW AS TO THE CONTENTION THAT THE DISCRIMINATORY PRICES HERE
COMPLAINED OF WERE MADE IN GOOD FAITH TO MEET A LOWER PRICE OF A
COMPETITOR.  WHILE THE COMMISSION MADE NO FINDING ON THIS POINT, IT
ASSUMED ITS EXISTENCE BUT HELD, CONTRARY TO THE PETITIONER'S
CONTENTION, THAT THIS WAS NOT A DEFENSE. 

     .         .         .         .         . 

"WE AGREE WITH THE COMMISSION THAT THE SHOWING OF THE PETITIONER THAT
IT MADE THE DISCRIMINATORY PRICE IN GOOD FAITH TO MEET COMPETITION IS
NOT CONTROLLING IN VIEW OF THE VERY SUBSTANTIAL EVIDENCE THAT ITS
DISCRIMINATION WAS USED TO AFFECT AND LESSEN COMPETITION AT THE RETAIL
LEVEL."  173 F.2D AT 214, 217. 

FN9  IN CONTRAST TO THAT FACTUAL SITUATION, THE TRIAL EXAMINER FOR
THE COMMISSION IN THE INSTANT CASE HAS FOUND THE NECESSARY FACTS TO
SUSTAIN THE SELLER'S DEFENSE (SEE NOTE 7, SUPRA), AND YET THE
COMMISSION REFUSES, AS A MATTER OF LAW, TO GIVE THEM CONSIDERATION. 

FN10  IN THE CORN PRODUCTS CASE, THE SAME POINT OF VIEW WAS EXPRESSED
BY THE COURT OF APPEALS BELOW:  "WE THINK THE EVIDENCE IS INSUFFICIENT
TO SUSTAIN THIS AFFIRMATIVE DEFENCE."  144 F.2D 211, 217(C.A.7TH CIR.).
THE COURT OF APPEALS ALSO INDICATED THAT, TO SUSTAIN THIS DEFENSE, IT
MUST APPEAR NOT ONLY THAT THE COMPETITOR'S LOWER PRICE WAS MET IN GOOD
FAITH BUT THAT SUCH PRICE WAS LAWFUL. 

FN11  THE STALEY CASE WAS TWICE BEFORE THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT.  IN 1943 THE CASE WAS REMANDED BY THAT COURT TO THE
COMMISSION FOR FINDINGS AS TO WHEREIN THE DISCRIMINATIONS OCCURRED AND
HOW THEY SUBSTANTIALLY LESSENED COMPETITION AND PROMOTED MONOPOLY AND
ALSO "FOR CONSIDERATION OF THE DEFENSE 2(B)) URGED BY THE PETITIONERS,
AND FOR FINDINGS IN RELATION THERETO."  135 F.2D 453, 456.  IN 1944, A
MAJORITY OF THE COURT DECIDED IN FAVOR OF THE SELLER.  144 F.2D 221. 
ONE JUDGE HELD THAT THE COMPLAINT WAS INSUFFICIENT UNDER SEC. 2(A) AND
THAT, THEREFORE, HE NEED NOT REACH THE SELLER'S DEFENSE UNDER SEC.
2(B).  HE EXPRESSLY STATED, HOWEVER, THAT HE DID NOT TAKE ISSUE WITH
THE BASIS FOR THE CONCLUSION THAT THE SELLER'S PRICE WAS MADE IN GOOD
FAITH TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR.  ID., AT 227-231. 
HIS COLLEAGUE HELD SQUARELY THAT THE SELLER'S DEFENSE OF MEETING
COMPETITION IN GOOD FAITH UNDER SEC. 2(B) HAD BEEN ESTABLISHED.  ID.,
AT 221-225.  THE THIRD JUDGE FOUND AGAINST THE SELLER BOTH UNDER SEC.
2(A) AND (B).  ID., AT 225-227.  THE IMPORTANT POINT FOR US IS THAT THE
COURT OF APPEALS, AS WELL AS THIS COURT, UNANIMOUSLY RECOGNIZED IN THAT
CASE THE MATERIALITY OF THE SELLER'S EVIDENCE IN SUPPORT OF ITS DEFENSE
UNDER SEC. 2(B), EVEN THOUGH THE "DISCRIMINATIONS 'HAVE RESULTED, AND
DO RESULT, IN SUBSTANTIAL INJURY TO COMPETITION AMONG PURCHASERS  ...
'"  ID., AT 222. 

FN12  IN CEASE AND DESIST ORDERS, ISSUED BOTH BEFORE AND AFTER THE
ORDER IN THE INSTANT CASE, THE COMMISSION HAS INSERTED SAVING CLAUSES
WHICH RECOGNIZE THE PROPRIETY OF A SELLER MAKING A PRICE REDUCTION IN
GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR, EVEN THOUGH
THE SELLER'S DISCRIMINATION MAY HAVE THE EFFECT OF INJURING COMPETITION
AT A LOWER LEVEL.  SEE IN RE FERRO ENAMEL CORP., 42 F.T.C. 36; IN RE
ANHEUSER-BUSCH, INC., 31 F.T.C. 986; IN RE BAUSCH & LOMB OPTICAL CO.,
28 F.T.C. 186. 

SEE ALSO, THE STATEMENT FILED BY WALTER B. WOODEN, ASSISTANT CHIEF
COUNSEL, AND BY HUGH E. WHITE, EXAMINER FOR THE COMMISSION, WITH THE
TEMPORARY NATIONAL ECONOMIC COMMITTEE IN 1941: 

"THE AMENDED ACT NOW SAFEGUARDS THE RIGHT OF A SELLER TO DISCRIMINATE
IN PRICE IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR,
BUT HE HAS THE BURDEN OF PROOF ON THAT QUESTION.  THIS RIGHT IS
GUARANTEED BY STATUTE AND COULD NOT BE CURTAILED BY ANY MANDATE OR
ORDER OF THE COMMISSION.  ...  THE RIGHT OF SELF DEFENSE AGAINST
COMPETITIVE PRICE ATTACKS IS AS VITAL IN A COMPETITIVE ECONOMY AS THE
RIGHT OF SELF DEFENSE AGAINST PERSONAL ATTACK."  THE BASING POINT
PROBLEM 139(TNEC MONOGRAPH 42, 1941). 

IN REGARD TO THE COMMISSION'S POSITION ON SEC. 2(B), URGED IN THE
INSTANT CASE, ALLEN C. PHELPS, ASSISTANT CHIEF TRIAL COUNSEL AND CHIEF
OF THE EXPORT TRADE DIVISION OF THE COMMISSION, TESTIFIED BEFORE THE
SUBCOMMITTEE ON TRADE POLICIES OF THE SENATE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE IN JANUARY, 1949, THAT "THIS POSITION, IF UPHELD
IN THE COURTS, IN MY JUDGMENT WILL EFFECTIVELY AND COMPLETELY ERASE
SUBCOMMITTEE OF THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
ON S. 236, 81ST CONG., 1ST SESS. 66.  SEE ALSO, PP. 274-275. 

FN13  HERBERT A. BERGSON, THEN ASSISTANT ATTORNEY GENERAL, TESTIFYING
FOR THE DEPARTMENT, JANUARY 25, 1949, SAID:  "THE SECTION (2(B))
PRESENTLY PERMITS SELLERS TO JUSTIFY OTHERWISE FORBIDDEN PRICE
DISCRIMINATIONS ON THE GROUND THAT THE LOWER PRICES TO ONE SET OF
BUYERS WERE MADE IN GOOD FAITH TO MEET THE EQUALLY LOW PRICES OF A
COMPETITOR."  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON S. 236, 81ST CONG., 1ST SESS. 77. 
SEE ALSO, REPORT ON S. 236 BY PEYTON FORD, THE ASSISTANT TO THE
ATTORNEY GENERAL, TO THE SENATE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE.  ID., AT 320.  MR. BERGSON ADDED THE FOLLOWING IN JUNE, 1949:
"WHILE WE RECOGNIZE THE COMPETITIVE PROBLEM WHICH ARISES WHEN ONE
PURCHASER OBTAINS ADVANTAGES DENIED TO OTHER PURCHASERS, WE DO NOT
BELIEVE THE SOLUTION TO THIS PROBLEM LIES IN DENYING TO SELLERS THE
OPPORTUNITY TO MAKE SALES IN GOOD FAITH COMPETITION WITH OTHER
SELLERS."  HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON
THE JUDICIARY ON S. 1008, 81ST CONG., 1ST SESS. 12. 

FN14  ATTENTION HAS BEEN DIRECTED AGAIN TO THE LEGISLATIVE HISTORY OF
THE PROVISO.  THIS WAS CONSIDERED IN THE CORN PRODUCTS AND STALEY
CASES.  SEE ESPECIALLY, 324 U.S. AT 752-753.  WE FIND THAT THE
LEGISLATIVE HISTORY, AT BEST, IS INCONCLUSIVE.  IT INDICATES THAT IT
WAS THE PURPOSE OF CONGRESS TO LIMIT, BUT NOT TO ABOLISH, THE ESSENCE
OF THE DEFENSE RECOGNIZED AS ABSOLUTE IN SEC. 2 OF THE ORIGINAL CLAYTON
ACT, 38 STAT. 730, WHERE A SELLER'S REDUCTION IN PRICE HAD BEEN MADE
"IN GOOD FAITH TO MEET COMPETITION  ...  "  FOR EXAMPLE, THE
LEGISLATIVE HISTORY RECOGNIZES THAT THE ROBINSON-PATMAN ACT LIMITS THAT
DEFENSE TO PRICE DIFFERENTIALS THAT DO NOT UNDERCUT THE COMPETITOR'S
PRICE, AND THE AMENDMENTS FAIL TO PROTECT DIFFERENTIALS BETWEEN PRICES
IN DIFFERENT COMMUNITIES WHERE THOSE PRICES ARE NOT ACTUALLY
COMPETITIVE.  THERE IS ALSO A SUGGESTION IN THE DEBATES, AS WELL AS IN
THE REMARKS OF THIS COURT IN THE STALEY CASE, SUPRA, THAT A
COMPETITOR'S LOWER PRICE, WHICH MAY BE MET BY A SELLER UNDER THE
PROTECTION OF SEC. 2(B), MUST BE A LAWFUL PRICE.  AND SEE, S. RES. 224,
70TH CONG., 1ST SESS., DIRECTING THE FEDERAL TRADE COMMISSION TO
INVESTIGATE AND REPORT TO IT ON CHAIN-STORE OPERATORS AND F.T.C. FINAL
REPORT ON THE CHAIN-STORE INVESTIGATION, S. DOC. NO. 4, 74TH CONG., 1ST
SESS. 

IN THE REPORT OF THE JUDICIARY COMMITTEE OF THE HOUSE OF
REPRESENTATIVES, WHICH DRAFTED THE CLAUSE WHICH BECAME SEC. 2(B), THERE
APPEARS THE FOLLOWING EXPLANATION OF IT: 

"THIS PROVISO REPRESENTS A CONTRACTION OF AN EXEMPTION NOW CONTAINED
IN SECTION 2 OF THE CLAYTON ACT WHICH PERMITS DISCRIMINATIONS WITHOUT
LIMIT WHERE MADE IN GOOD FAITH TO MEET COMPETITION.  IT SHOULD BE NOTED
THAT WHILE THE SELLER IS PERMITTED TO MEET LOCAL COMPETITION, IT DOES
NOT PERMIT HIM TO CUT LOCAL PRICES UNTIL HIS COMPETITOR HAS FIRST
OFFERED LOWER PRICES, AND THEN HE CAN GO NO FURTHER THAN TO MEET THOSE
PRICES.  IF HE GOES FURTHER, HE MUST DO SO LIKEWISE WITH ALL HIS OTHER
CUSTOMERS, OR MAKE HIMSELF LIABLE TO ALL OF THE PENALTIES OF THE ACT,
INCLUDING TREBLE DAMAGES.  IN OTHER WORDS, THE PROVISO PERMITS THE
SELLER TO MEET THE PRICE ACTUALLY PREVIOUSLY OFFERED BY A LOCAL
COMPETITOR.  IT PERMITS HIM TO GO NO FURTHER."  H.R. REP. NO. 2287,
74TH CONG., 2D SESS. 16. 

SEE ALSO, 80 CONG. REC. 6426, 6431-6436, 8229, 8235. 

SOMEWHAT CHANGING THIS EMPHASIS, THERE WAS A STATEMENT MADE BY THE
MANAGERS ON THE PART OF THE HOUSE OF REPRESENTATIVES, ACCOMPANYING THE
CONFERENCE REPORT, WHICH SAID THAT THE NEW CLAUSE WAS A "PROVISION
RELATING TO THE QUESTION OF MEETING COMPETITION, INTENDED TO OPERATE
ONLY AS A RULE OF EVIDENCE IN A PROCEEDING BEFORE THE FEDERAL TRADE
COMMISSION  ...  " H.R. REP. NO. 2951, 74TH CONG., 2D SESS. 7.  THE
CHAIRMAN OF THE HOUSE CONFEREES ALSO RECEIVED PERMISSION TO PRINT IN
THE RECORD AN EXPLANATION OF THE PROVISO.  80 CONG. REC. 9418.  THIS
EXPLANATION EMPHASIZES THE SAME INTERPRETATION AS THAT PUT ON THE
PROVISO IN THE STALEY CASE TO THE EFFECT THAT THE LOWER PRICE WHICH
LAWFULLY MAY BE MET BY A SELLER MUST BE A LAWFUL PRICE.  THAT
STATEMENT, HOWEVER, NEITHER JUSTIFIES DISREGARDING THE PROVISO NOR
FAILING TO MAKE FINDINGS OF FACT WHERE EVIDENCE IS OFFERED THAT THE
PRICES MET BY THE SELLER ARE LAWFUL PRICES AND THAT THE MEETING OF THEM
IS IN GOOD FAITH. 

FN15  IT HAS BEEN SUGGESTED THAT, IN THEORY, THE ROBINSON-PATMAN ACT
AS A WHOLE IS INCONSISTENT WITH THE SHERMAN AND CLAYTON ACTS.  SEE
ADELMAN, EFFECTIVE COMPETITION AND THE ANTITRUST LAWS, 61 HARV. L. REV.
1289, 1327-1350; BURNS, THE ANTI-TRUST LAWS AND THE REGULATION OF PRICE
COMPETITION, 4 LAW & CONTEMP.  PROB.  301; LEARNED & ISAACS, THE
ROBINSON-PATMAN LAW:  SOME ASSUMPTIONS AND EXPECTATIONS, 15 HARV. BUS. 
REV.  137; MCALLISTER, PRICE CONTROL BY LAW IN THE UNITED STATES:  A
SURVEY, 4 LAW & CONTEMP.  PROB.  273. 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, DISSENTING* . 

*(JOINED BY THE CHIEF JUSTICE AND MR. JUSTICE BLACK.  SEE POST, P.
267.) 

THE FEDERAL TRADE COMMISSION INVESTIGATED PRACTICES OF THE STANDARD
OIL COMPANY OF INDIANA IN SELLING ITS GASOLINE IN THE DETROIT AREA AT
DIFFERENT PRICES TO COMPETING LOCAL DISTRIBUTORS, IN ALLEGED VIOLATION
OF THE ROBINSON-PATMAN (ANTI-PRICE DISCRIMINATION) ACT.  STANDARD'S
DEFENSE IS NOT A DENIAL OF THAT DISCRIMINATORY PRACTICE BUT A COMPLETE
JUSTIFICATION, SAID TO BE ALLOWED BY THE ROBINSON-PATMAN ACT, ON THE
GROUND OF TRADE NECESSITY IN ORDER TO MEET AN EQUALLY LOW PRICE IN
DETROIT OF OTHER GASOLINE REFINERS.  ON CONCLUDING THAT THE PRACTICE
VIOLATED FEDERAL PROHIBITIONS AGAINST DISCRIMINATORY SALE PRICES, THE
COMMISSION ENTERED A CEASE AND DESIST ORDER AGAINST STANDARD'S SALE
SYSTEM.  THE ORDER WAS ENFORCED BY THE COURT OF APPEALS AFTER A MINOR
MODIFICATION.  43 F.T.C. 56; 173 F.2D 210. 

THE NEED TO ALLOW SELLERS TO MEET COMPETITION IN PRICE FROM OTHER
SELLERS WHILE PROTECTING THE COMPETITORS OF THE BUYERS AGAINST THE
BUYERS' ADVANTAGES GAINED FROM THE PRICE DISCRIMINATION WAS A MAJOR
CAUSE OF THE ENACTMENT OF THE 1936 ROBINSON-PATMAN ACT.  THE CLAYTON
ACT OF 1914 HAD FAILED TO SOLVE THE PROBLEM.  THE IMPOSSIBILITY OF
DRAFTING FIXED WORDS OF A STATUTE SO AS TO ALLOW SUFFICIENT FLEXIBILITY
TO MEET THE MYRIAD SITUATIONS OF NATIONAL COMMERCE, WE THINK LED
CONGRESS IN THE ROBINSON-PATMAN ACT TO PUT AUTHORITY IN THE FEDERAL
TRADE COMMISSION TO DETERMINE WHEN A SELLER'S DISCRIMINATORY SALES
PRICE VIOLATED THE PROHIBITIONS OF THE ANTI-MONOPOLY STATUTE, SEC.
2(A), 49 STAT. 1526, AND WHEN IT WAS JUSTIFIED BY A COMPETITOR'S LEGAL
PRICE.  FN1  THE DISADVANTAGE TO BUSINESS OF THIS CHOICE WAS THAT THE
SELLER COULD NOT BE POSITIVE BEFORE THE COMMISSION ACTED AS TO
PRECISELY HOW FAR HE MIGHT GO IN PRICE DISCRIMINATION TO MEET AND BEAT
HIS COMPETITION.  THE COMMISSION ACTED ON ITS INTERPRETATION OF THE
ACT.  FN2  BELIEVING IT IMPORTANT TO SUPPORT THE PURPOSE OF CONGRESS
AND THE COMMISSION'S INTERPRETATION OF THE ACT, WITH WHICH WE AGREE, WE
STATE OUR REASONS. 

THE COURT FIRST CONDEMNS THE COMMISSION'S POSITION THAT MEETING IN
GOOD FAITH A COMPETITOR'S PRICE MERELY REBUTS THE PRIMA FACIE
ESTABLISHMENT OF DISCRIMINATION BASED ON FORBIDDEN DIFFERENCES IN SALES
PRICE, SO AS TO REQUIRE AN AFFIRMATIVE FINDING BY THE COMMISSION THAT
NEVERTHELESS THERE MAY BE ENJOINABLE INJURY UNDER THE ROBINSON-PATMAN
ACT TO THE FAVORED BUYER'S COMPETITORS.  THE COURT THEN DECIDES THAT
GOOD FAITH IN MEETING COMPETITION WAS AN ABSOLUTE DEFENSE FOR PRICE
DISCRIMINATION, SAYING:    "ON THE OTHER HAND, THE PROVISO IS READILY
UNDERSTANDABLE AS SIMPLY CONTINUING IN EFFECT A DEFENSE WHICH IS
EQUALLY ABSOLUTE, BUT MORE LIMITED IN SCOPE THAN THAT WHICH EXISTED
UNDER SEC. 2 OF THE ORIGINAL CLAYTON ACT." 

SUCH A CONCLUSION SEEMS ERRONEOUS.  WHAT FOLLOWS IN THIS DISSENT
DEMONSTRATES, WE THINK, THAT CONGRESS INTENDED SO TO AMEND THE CLAYTON
ACT THAT THE AVENUE OF ESCAPE GIVEN PRICE DISCRIMINATORS BY ITS
"MEETING COMPETITION" CLAUSE SHOULD BE NARROWED.  THE COURT'S
INTERPRETATION LEAVES WHAT THE SELLER CAN DO ALMOST AS WIDE OPEN AS
BEFORE.  SEE P. 263 ET SEQ., INFRA.  IT SEEMS CLEAR TO US THAT THE
INTERPRETATION PUT UPON THE CLAUSE OF THE ROBINSON-PATMAN ACT BY THE
COURT MEANS THAT NO REAL CHANGE HAS BEEN BROUGHT ABOUT BY THE
AMENDMENT. 

THE PUBLIC POLICY OF THE UNITED STATES FOSTERS THE FREE-ENTERPRISE
SYSTEM OF UNFETTERED COMPETITION AMONG PRODUCERS AND DISTRIBUTORS OF
GOODS AS THE ACCEPTED METHOD TO PUT THOSE GOODS INTO THE HANDS OF ALL
CONSUMERS AT THE LEAST EXPENSE.  FN3  THERE ARE, HOWEVER, STATUTORY
EXCEPTIONS TO SUCH UNLIMITED COMPETITION.  FN4  NONDISCRIMINATORY
PRICING TENDS TO WEAKEN COMPETITION IN THAT A SELLER, WHILE OTHERWISE
MAINTAINING HIS PRICES, CANNOT MEET HIS ANTAGONIST'S PRICE TO GET A
SINGLE ORDER OR CUSTOMER.  BUT CONGRESS OBVIOUSLY CONCLUDED THAT THE
GREATER ADVANTAGE WOULD ACCRUE BY FOSTERING EQUAL ACCESS TO SUPPLIES BY
COMPETING MERCHANTS OR OTHER PURCHASERS IN THE COURSE OF BUSINESS. 
FN5 

THE FIRST ENACTMENT TO PUT LIMITS ON DISCRIMINATORY SELLING PRICES
WAS THE CLAYTON ACT IN 1914, 38 STAT. 730, SEC. 2.  SECTION 11 ENABLED
THE COMMISSION TO USE ITS INVESTIGATORY AND REGULATORY AUTHORITY TO
HANDLE PRICE DISCRIMINATION.  SECTION 2 PROVIDED FOR THE MAINTENANCE OF
COMPETITION BY PROTECTING THE ABILITY OF BUSINESS RIVALS TO OBTAIN
COMMODITIES ON EQUAL TERMS.  THE ROBINSON-PATMAN ACT MOVED FURTHER
TOWARD THIS OBJECTIVE.  IN THE MARGIN APPEAR THE APPLICABLE WORDS OF
THE CLAYTON ACT FOLLOWED BY THOSE OF THE ROBINSON-PATMAN ACT.  PHRASED
SUMMARILY FOR THIS CASE, IT MAY BE SAID THAT THE ITALICIZED WORDS IN
THE CLAYTON ACT WERE THE SOURCE OF THE DIFFICULTIES IN ENFORCEMENT THAT
CONGRESS UNDERTOOK TO AVOID BY THE ITALICIZED WORDS OF THE ROBINSON
PATMAN ACT.  FN6 

IT WILL BE NOTED THAT UNLESS THE EFFECT IS GIVEN THE ROBINSON-PATMAN
AMENDMENT CONTENDED FOR BY THE FEDERAL TRADE COMMISSION, THERE IS
LITTLE DONE TO OVERCOME THE DIFFICULTIES ARISING FROM THE "MEETING
COMPETITION" CLAUSE OF THE CLAYTON ACT.  FORMERLY "DISCRIMINATION IN
PRICE IN THE SAME OR DIFFERENT COMMUNITIES MADE IN GOOD FAITH TO MEET
COMPETITION" WAS ALLOWED AS A COMPLETE DEFENSE.  NOW IT IS "MADE IN
GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR."  THE COURT
SAYS: 

"IT THUS ELIMINATES CERTAIN DIFFICULTIES WHICH AROSE UNDER THE
ORIGINAL CLAYTON ACT.  FOR EXAMPLE, IT OMITS REFERENCE TO
DISCRIMINATIONS IN PRICE 'IN THE SAME OR DIFFERENT COMMUNITIES ...  '
AND IT THUS RESTRICTS THE PROVISO TO PRICE DIFFERENTIALS OCCURRING IN
ACTUAL COMPETITION.  IT ALSO EXCLUDES REDUCTIONS WHICH UNDERCUT THE
'LOWER PRICE' OF A COMPETITOR.  NONE OF THESE CHANGES, HOWEVER, CUT
INTO THE ACTUAL CORE OF THE DEFENSE.  THAT STILL CONSISTS OF THE
PROVISION THAT WHEREVER A LAWFUL LOWER PRICE OF A COMPETITOR THREATENS
TO DEPRIVE A SELLER OF A CUSTOMER, THE SELLER, TO RETAIN THAT CUSTOMER,
MAY IN GOOD FAITH MEET THAT LOWER PRICE." 

WE SEE LITTLE DIFFERENCE.  THE SELLER MAY STILL, UNDER THE COURT'S
INTERPRETATION, DISCRIMINATE IN SALES OF GOODS OF LIKE QUANTITY AND
QUALITY BETWEEN BUYERS ON OPPOSITE CORNERS, SO LONG AS ONE GETS A LOWER
DELIVERED PRICE OFFER FROM ANOTHER SELLER, NO MATTER WHERE LOCATED. 
THE "ACTUAL CORE OF THE DEFENSE" REMAINS INTACT. 

                             I. 

LEGISLATIVE HISTORY.  UPON THE INTERPRETATION OF THE WORDS AND
PURPOSE OF THIS LAST ADDITION BY THE ROBINSON-PATMAN ACT TO CURBS ON
DISCRIMINATION IN TRADE, THE NARROW STATUTORY ISSUES IN THIS CASE
TURN.  THOUGH NARROW, THEY ARE IMPORTANT IF TRADE IS TO HAVE THE
BENEFIT OF CAREFUL INVESTIGATION BEFORE REGULATION, ATTAINABLE UNDER
THE FEDERAL TRADE COMMISSION ACT BUT SO DIFFICULT WHEN ATTEMPTED BY
PROSECUTIONS IN COURTS WITH THE LIMITATIONS OF JUDICIAL PROCEDURE.  AS
AN AID TO THE INTERPRETATION OF SEC. 2(B), WE SET OUT APPLICABLE PARTS
OF ITS LEGISLATIVE HISTORY. 

THE CLAYTON ACT CREATED A BROAD EXCEPTION FROM CONTROL FOR PRICES
MADE IN GOOD FAITH TO MEET COMPETITION.  THIS RAISED PROBLEMS OF WHICH
CONGRESS WAS AWARE.  IN REPORTING ON A REDRAFTED VERSION OF S. 3154,
THE SENATE'S COMPANION BILL TO THE HOUSE BILL THAT BECAME THE ROBINSON
PATMAN ACT, THE SENATE COMMITTEE ON THE JUDICIARY, FEBRUARY 3, 1936,
POINTED OUT THE WEAKNESS OF SEC. 2 OF THE CLAYTON ACT IN PERMITTING
DISCRIMINATION TO MEET COMPETITION, AND SUGGESTED A HARSH REMEDY, THE
ELIMINATION OF ITS ITALICIZED PROVISO IN NOTE 6, SUPRA, WITHOUT THE
MOLLIFYING WORDS OF SEC. 2(B) OF THE ROBINSON-PATMAN ACT.  FN7  IN
MARCH, THE HOUSE COMMITTEE ON THE JUDICIARY MADE ITS REPORT ON THE BILL
THAT BECAME THE ACT.  SECTION 2(B) WAS THEN IN SUBSTANTIALLY ITS
PRESENT FORM.  THE REPORT POINTED OUT THE DRAFTSMEN'S PURPOSE TO
STRENGTHEN THE LAWS AGAINST PRICE DISCRIMINATION, DIRECTLY OR
INDIRECTLY THROUGH BROKERAGE OR OTHER ALLOWANCES, SERVICES OR
ABSORPTIONS OF COSTS.  FN8  IT COMMENTED THAT THE SUBSECTION THAT
BECAME SEC. 2(B) LET A SELLER "MEET THE PRICE ACTUALLY PREVIOUSLY
OFFERED BY A LOCAL COMPETITOR."  FN9  THE LANGUAGE USED IN REGARD TO
COMPETITION IN THE BILLS AND IN THE ACT SEEMS TO HAVE BEEN BASED ON A
RECOMMENDATION OF THE FEDERAL TRADE COMMISSION.  FN10  THE COMMISSION
HAD BEEN UNABLE TO RESTORE THE DESIRED COMPETITION UNDER THE CLAYTON
ACT, AND CONGRESS EVIDENTLY SOUGHT TO OPEN THE WAY FOR EFFECTIVE
ACTION.  FN11 

EVENTS IN THE COURSE OF THE PROPOSED LEGISLATION IN THE SENATE AND
HOUSE HAVE PERTINENCE.  THE SENATE INSERTED THE ORIGINAL INEFFECTIVE
LANGUAGE OF THE CLAYTON ACT IN ITS EXACT FORM IN THE SENATE BILL.  IN
THE SAME DRAFT IT ADOPTED AN AMENDMENT SIMILAR TO THE PROVISO
ULTIMATELY ENACTED.  80 CONG. REC. 6426, 6435.  IN THE HOUSE,
REPRESENTATIVE PATMAN EXPLAINED HIS VIEW OF THE DANGERS IN THE ORIGINAL
PROVISO.  FN12  IT WAS TAKEN OUT IN CONFERENCE N13.  THE CHAIRMAN OF
THE HOUSE MANAGERS, MR. UTTERBACK, BEFORE THE CONFERENCE REPORT WAS
AGREED TO BY THE HOUSE, RECEIVED PERMISSION TO PRINT AN EXPLANATION OF
HIS UNDERSTANDING OF THE PROVISO.  HE EXPLAINED THAT THE PROVISO "DOES
NOT SET UP THE MEETING OF COMPETITION AS AN ABSOLUTE BAR TO A CHARGE OF
DISCRIMINATION UNDER THE BILL.  IT MERELY PERMITS IT TO BE SHOWN IN
EVIDENCE.   ...  IT LEAVES IT A QUESTION OF FACT TO BE DETERMINED IN
EACH CASE, WHETHER THE COMPETITION TO BE MET WAS SUCH AS TO JUSTIFY THE
DISCRIMINATION GIVEN,  ...  "  THE PERTINENT PARTS OF THE STATEMENT
APPEAR IN THE MARGIN.  FN14

                                 II. 

STATUTORY INTERPRETATION.  THIS RESUME OF THE ORIGIN AND PURPOSE OF
THE ORIGINAL SEC. 2 OF THE CLAYTON ACT AND THE AMENDMENTS OF THE
ROBINSON-PATMAN ACT GIVES A BASIS FOR DETERMINING THE EFFECT OF THIS
THAT A SELLER DURING THE SAME PERIOD OF TIME HAS SOLD THE SAME
COMMODITIES TO VARIOUS PURCHASERS AT DIFFERENT PRICES, IS ADMITTED, AND
THE DEFENSE, THE ELEMENTS OF WHICH ARE LIKEWISE ADMITTED, IS THAT THE
DISCRIMINATION WAS MADE IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A
COMPETITOR.  DOES MEETING IN GOOD FAITH A COMPETITOR'S PRICE CONSTITUTE
A COMPLETE DEFENSE UNDER THE PROVISO TO SEC. 2(B)?  OR DOES THE FACT OF
GOOD FAITH REDUCTION IN PRICE TO A PURCHASER TO MEET A COMPETITOR'S
PRICE MERELY REBUT THE PRIMA FACIE ESTABLISHMENT OF DISCRIMINATION,
ARISING UNDER THE STATUTE FROM PROOF OF FORBIDDEN DIFFERENCES IN PRICE,
FN15  SO AS TO REQUIRE UNDER SEC. 2(A) AFFIRMATIVE FINDING BY THE
COMMISSION THAT THERE MAY BE INJURY TO COMPETITION?  PETITIONER ASSERTS
THAT GOOD FAITH MEETING OF A COMPETITOR'S PRICE IS A COMPLETE DEFENSE. 
THE COMMISSION AND THE COURT OF APPEALS TAKE THE OPPOSITE POSITION,
WITH WHICH WE CONCUR. 

THIS IS OUR REASON.  THE STATUTORY DEVELOPMENT AND THE INFORMATION
BEFORE CONGRESS CONCERNING THE NEED FOR STRENGTHENING THE COMPETITIVE
PRICE PROVISION OF THE CLAYTON ACT, MAKE CLEAR THAT THE EVIL DEALT WITH
BY THE PROVISO OF SEC. 2(B) WAS THE EASY AVOIDANCE OF THE PROHIBITION
AGAINST PRICE DISCRIMINATION.  THE CONTROL OF THAT EVIL WAS AN
IMPORTANT OBJECTIVE OF THE ROBINSON-PATMAN ACT.  THE DEBATES, THE
COMMISSION'S REPORT AND RECOMMENDATION, AND STATUTORY CHANGES SHOW
THIS.  THE CONFERENCE REPORT AND THE EXPLANATION BY ONE OF THE
MANAGERS, MR. UTTERBACK, ARE QUITE DEFINITIVE UPON THE POINT.  BECAUSE
OF EXPERIENCE UNDER THE CLAYTON ACT, CONGRESS REFUSED TO CONTINUE ITS
COMPETITIVE PRICE PROVISO.  YET ADOPTION OF PETITIONER'S POSITION WOULD
PERMIT A SELLER OF NATIONALLY DISTRIBUTED GOODS TO DISCRIMINATE IN
FAVOR OF LARGE CHAIN RETAILERS, FOR THE SELLER COULD GIVE TO THE LARGE
RETAILER A PRICE LOWER THAN THAT CHARGED TO SMALL RETAILERS, AND COULD
THEN COMPLETELY JUSTIFY ITS DISCRIMINATION BY SHOWING THAT THE LARGE
RETAILER HAD FIRST OBTAINED THE SAME LOW PRICE FROM A LOCAL LOW-COST
PRODUCER OF COMPETITIVE GOODS.  THIS IS THE VERY TYPE OF COMPETITION
THAT CONGRESS SOUGHT TO REMEDY.  TO PERMIT THIS WOULD NOT SEEM
CONSONANT WITH THE OTHER PROVISIONS OF THE ROBINSON-PATMAN ACT,
STRENGTHENING REGULATORY POWERS OF THE COMMISSION IN "QUANTITY" SALES,
SPECIAL ALLOWANCES AND CHANGING ECONOMIC CONDITIONS. 

THE STRUCTURE AND WORDING OF THE ROBINSON-PATMAN AMENDMENT TO THE
CLAYTON ACT ALSO CONDUCE TO OUR CONCLUSION.  IN THE ORIGINAL CLAYTON
ACT, SEC. 2 WAS NOT DIVIDED INTO SUBSECTIONS.  IN THAT STATUTE, SEC. 2
STATED THE BODY OF THE SUBSTANTIVE OFFENSE, AND THEN LISTED, IN A
SERIES OF PROVISOS, VARIOUS CIRCUMSTANCES UNDER WHICH DISCRIMINATIONS
IN PRICE WERE PERMISSIBLE.  THUS THE STATUTE PROVIDED THAT
DISCRIMINATIONS WERE NOT ILLEGAL IF MADE ON ACCOUNT OF DIFFERENCES IN
THE GRADE OF THE COMMODITY SOLD, OR DIFFERENCES IN SELLING OR
TRANSPORTATION COSTS.  LISTED AMONG THESE ABSOLUTE JUSTIFICATIONS OF
THE CLAYTON ACT APPEARED THE PROVISION THAT "NOTHING HEREIN CONTAINED
SHALL PREVENT DISCRIMINATION IN PRICE  ...  MADE IN GOOD FAITH TO MEET
COMPETITION."  THE ROBINSON-PATMAN ACT, HOWEVER, MADE TWO CHANGES IN
RESPECT OF THE "MEETING COMPETITION" PROVISION, ONE AS TO ITS LOCATION,
THE OTHER IN THE PHRASING.  UNLIKE THE ORIGINAL STATUTE, SEC. 2 OF THE
ROBINSON-PATMAN ACT IS DIVIDED INTO TWO SUBSECTIONS.  THE FIRST, SEC.
2(A), RETAINED THE STATEMENT OF SUBSTANTIVE OFFENSE AND THE SERIES OF
PROVISOS TREATED BY THE COMMISSION AS AFFORDING FULL JUSTIFICATIONS FOR
PRICE DISCRIMINATIONS; SEC. 2(B) WAS CREATED TO DEAL WITH PROCEDURAL
PROBLEMS IN FEDERAL TRADE COMMISSION PROCEEDINGS, SPECIFICALLY TO TREAT
THE QUESTION OF BURDEN OF PROOF.  IN THE PROCESS OF THIS DIVISION, THE
"MEETING COMPETITION" PROVISION WAS SEPARATED FROM THE OTHER PROVISOS,
SET OFF FROM THE SUBSTANTIVE PROVISIONS OF SEC. 2(A), AND RELEGATED TO
THE POSITION OF A PROVISO TO THE PROCEDURAL SUBSECTION, SEC. 2(B). 
UNLESS IT IS BELIEVED THAT THIS CHANGE OF POSITION WAS FORTUITOUS, IT
CAN BE INFERRED THAT CONGRESS MEANT TO CURTAIL THE DEFENSE OF MEETING
COMPETITION WHEN IT BANISHED THIS PROVISO FROM THE SUBSTANTIVE DIVISION
TO THE PROCEDURAL.  IN THE SAME WAY, THE LANGUAGE CHANGES MADE BY SEC.
2(B) OF THE ROBINSON-PATMAN ACT REFLECT AN INTENT TO DIMINISH THE
EFFECTIVENESS OF THE SWEEPING DEFENSE OFFERED BY THE CLAYTON ACT'S
"MEETING OF COMPETITION" PROVISO.  THE ORIGINAL PROVISOS IN THE CLAYTON
ACT, AND THE PROVISOS NOW APPEARING IN SEC. 2(A), ARE WORDED TO MAKE IT
CLEAR THAT NOTHING SHALL PREVENT CERTAIN PRICE PRACTICES, SUCH AS PRICE
"DIFFERENTIALS (MAKING)  ...  DUE ALLOWANCE FOR DIFFERENCES IN THE COST
OF MANUFACTURE  ...  ," OR "PRICE CHANGES  ...  IN RESPONSE TO CHANGING
CONDITIONS AFFECTING THE MARKET FOR  ... THE GOODS CONCERNED  ...  "
BUT IN CONTRAST TO THESE PROVISIONS, THE PROVISO TO SEC. 2(B) DOES NOT
PROVIDE THAT NOTHING "SHALL PREVENT" A CERTAIN PRICE PRACTICE; IT
PROVIDES ONLY THAT "NOTHING  ...  SHALL PREVENT A SELLER REBUTTING (A)
PRIMAFACIE CASE  ...  BY SHOWING" A CERTAIN PRICE PRACTICE - MEETING A
COMPETITIVE PRICE.  THE LANGUAGE THUS SHIFTS THE FOCUS OF THE PROVISO
FROM A MATTER OF SUBSTANTIVE DEFENSE TO A MATTER OF PROOF.  CONSISTENT
WITH EACH OTHER, THESE MODIFICATIONS MADE BY THE ROBINSON-PATMAN ACT
ARE ALSO CONSISTENT WITH THE INTENT OF CONGRESS EXPRESSED IN THE
LEGISLATIVE HISTORY. 

THE COURT SUGGESTS THAT FORMER FEDERAL TRADE COMMISSION CASES DECIDED
HERE HAVE TREATED THE "MEETING COMPETITION" CLAUSE OF THE ROBINSON
PATMAN ACT AS BEING AN ABSOLUTE DEFENSE, NOT MERELY A REBUTTAL OF THE
DISCRIMINATION CHARGE REQUIRING FURTHER FINDING BY THE COMMISSION. 
REFERENCE IS MADE TO CORN PRODUCTS REFINING CO. V. FEDERAL TRADE
COMM'N, 324 U.S. 726, AND FEDERAL TRADE COMM'N V. STALEY MFG. CO., 324
U.S. 746.  IN THE CORN PRODUCTS CASE, DEALING WITH A BASING POINT
SCHEME FOR DELIVERED PRICES, THIS COURT MERELY SAID AT P. 741: 

"THE ONLY EVIDENCE SAID TO REBUT THE PRIMA FACIE CASE MADE BY PROOF
OF THE PRICE DISCRIMINATIONS WAS GIVEN BY WITNESSES WHO HAD NO PERSONAL
KNOWLEDGE OF THE TRANSACTIONS, AND WAS LIMITED TO STATEMENTS OF EACH
WITNESS'S ASSUMPTION OR CONCLUSION THAT THE PRICE DISCRIMINATIONS WERE
JUSTIFIED BY COMPETITION." 

AND THEN WENT ON TO USE THE LANGUAGE QUOTED AT P. 244 OF THE COURT'S
OPINION.  THERE WAS NO OCCASION TO CONSIDER THE EFFECT OF A SUCCESSFUL
REBUTTAL.  AS AUTHORITY FOR ITS STATEMENT, WE THERE CITED THE STALEY
CASE. 

THAT CITATION INCLUDED THESE WORDS AT PP. 752-753: 

"PRIOR TO THE ROBINSON-PATMAN AMENDMENTS, SEC. 2 OF THE CLAYTON ACT
PROVIDED THAT NOTHING CONTAINED IN IT 'SHALL PREVENT' DISCRIMINATIONS
IN PRICE 'MADE IN GOOD FAITH TO MEET COMPETITION.'  THE CHANGE IN
LANGUAGE OF THIS EXCEPTION WAS FOR THE PURPOSE OF MAKING THE DEFENSE A
MATTER OF EVIDENCE IN EACH CASE, RAISING A QUESTION OF FACT AS TO
WHETHER THE COMPETITION JUSTIFIED THE DISCRIMINATION.  SEE THE
CONFERENCE REPORT, H. REP. NO. 2951, 74TH CONG., 2D SESS., PP. 6-7; SEE
ALSO THE STATEMENT OF REPRESENTATIVE UTTERBACH, THE CHAIRMAN OF THE
HOUSE CONFERENCE COMMITTEE, 80 CONG. REC. 9418."    AFTER THAT
STATEMENT, WHICH IT SHOULD BE NOTED RELIES UPON MR. UTTERBACK'S
INTERPRETATION QUOTED AT NOTE 14 OF THIS OPINION, THE COURT IN THE
STALEY CASE GOES ON TO SAY THAT THERE WAS NO EVIDENCE TO SHOW THAT
STALEY ADOPTED A LOWER PRICE TO MEET AN EQUALLY LOW PRICE OF A
COMPETITOR.  AGAIN THERE WAS NO OCCASION FOR THIS COURT TO MEET THE
PRESENT ISSUE.  WE THINK OUR CITATION IN STALEY, QUOTED ABOVE, SHOWS
THE THEN POSITION OF THIS COURT.  FN16 

THERE ARE ARGUMENTS AVAILABLE TO SUPPORT THE CONTRARY POSITION.  NO
DEFINITE STATEMENT APPEARS IN THE COMMITTEE REPORTS THAT "MEETING
COMPETITION" IS HENCEFORTH TO BE ONLY A REBUTTAL OF A PRIMA FACIE CASE
AND NOT A FULL JUSTIFICATION FOR DISCRIMINATION IN PRICE.  THE PROVISO
OF SEC. 2(B) CAN BE READ AS HAVING THE SAME SUBSTANTIVE EFFECT AS THE
PROVISOS OF SEC. 2(A).  THE EARLIER PROVISOS ARE TREATED BY THE
COMMISSION AS COMPLETE DEFENSES.  PERHAPS THERE IS AN IMPLICATION
FAVORABLE TO THE PETITIONER'S POSITION IN REPRESENTATIVE PATMAN'S
OMISSION TO STATE THE FEDERAL TRADE COMMISSION INTERPRETATION ON THE
FLOOR.  SEE N. 12, SUPRA. 

THE UNDERLYING CONGRESSIONAL PURPOSE TO CURTAIL METHODS OF AVOIDING
LIMITATIONS ON PRICE DISCRIMINATIONS, HOWEVER, CONSIDERED WITH THE MORE
SPECIFIC MATTERS DISCUSSED HEREIN, SATISFIES US THAT WE SHOULD ADOPT
THE CONCLUSION OF THE COMMISSION AND THE COURT OF APPEALS.  FN17  WE
BELIEVE THAT GOOD FAITH MEETING OF A COMPETITOR'S PRICE ONLY REBUTS THE
PRIMA FACIE CASE OF VIOLATION ESTABLISHED BY SHOWING THE PRICE
DISCRIMINATION.  WHETHER THE PROVEN PRICE DISCRIMINATION IS OF A
CHARACTER THAT VIOLATES SEC. 2(A) THEN BECOMES A MATTER FOR THE
DETERMINATION OF THE COMMISSION ON A SHOWING THAT THERE MAY BE INJURY
TO COMPETITION. 

                                 III. 

CONCLUSION.  IN VIEW OF THE COURT'S RULING, WE WILL NOT ENLARGE THIS
DISSENT BY DISCUSSING OTHER PROBLEMS RAISED BY THE CASE.  WE HAVE SAID
ENOUGH TO SHOW THAT WE WOULD AFFIRM THE DECREE BELOW IN PRINCIPLE, EVEN
THOUGH WE SHOULD CONCLUDE SOME AMENDMENT MIGHT BE REQUIRED IN THE
WORDING OF THE ORDER. 

FN1  THE DIFFICULTIES OF ANY OTHER APPROACH ARE ILLUSTRATED BY THE
ATTEMPT OF CONGRESS TO CLARIFY THE ROBINSON-PATMAN ACT.  SEE
PRESIDENT'S VETO MESSAGE ON S. 1008, 96 CONG. REC. 8721, AND CONFERENCE
REPORTS, H.R. REP. NO. 1422, 81ST CONG., 1ST SESS., OCTOBER 13, 1949,
AND 2D SESS., H.R. REP. NO. 1730, MARCH 3, 1950. 

FN2  HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON THE
JUDICIARY ON S. 1008, 81ST CONG., 1ST SESS., JUNE 8 AND 14, 1949, P.
61. 

FN3  ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 13; UNITED STATES
V. LINE MATERIAL CO., 333 U.S. 287, 309. 

FN4  E.G., INTERSTATE COMMERCE ACT, SEC. 5, 49 U.S.C. SEC. 5;
COMMUNICATIONS ACT OF 1934, SEC. 221, 47 U.S.C. SEC. 221; MILLER
TYDINGS ACT, 15 U.S.C. SEC. 1.  AND SEE MASON, THE CURRENT STATUS OF
THE MONOPOLY PROBLEM IN THE UNITED STATES, 62 HARV. L. REV. 1265. 

FN5  FOR A DISCUSSION OF THE MERITS OF THE LEGISLATION, SEE ADELMAN,
EFFECTIVE COMPETITION AND THE ANTITRUST LAWS, 61 HARV. L. REV. 1289. 

FN6  CLAYTON ACT: 

"SEC. 2.  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN
COMMERCE  ...  TO DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF
COMMODITIES,  ...  WHERE THE EFFECT OF SUCH DISCRIMINATION MAY BE TO
SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY
LINE OF COMMERCE: PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL PREVENT
...  DISCRIMINATION IN PRICE IN THE SAME OR DIFFERENT COMMUNITIES MADE
IN GOOD FAITH TO MEET COMPETITION:  ...  " 

ROBINSON-PATMAN ACT: 

"SEC. 2.  (A)  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN
COMMERCE,  ...  TO DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS
OF COMMODITIES  ...  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:  ... 

"(B)  UPON PROOF BEING MADE, AT ANY HEARING ON A COMPLAINT UNDER THIS
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." 

FN7  S. REP. NO. 1502, 74TH CONG., 2D SESS. 4: 

"THE WEAKNESS OF PRESENT SECTION 2 LIES PRINCIPALLY IN THE FACT THAT:
(1) IT PLACES NO LIMIT UPON DIFFERENTIALS PERMISSIBLE ON ACCOUNT OF
DIFFERENCES IN QUANTITY; AND (2) IT PERMITS DISCRIMINATIONS TO MEET
COMPETITION, AND THUS TENDS TO SUBSTITUTE THE REMEDIES OF RETALIATION
FOR THOSE OF LAW, WITH DESTRUCTIVE CONSEQUENCES TO THE CENTRAL OBJECT
OF THE BILL.  LIBERTY TO MEET COMPETITION WHICH CAN BE MET ONLY BY
PRICE CUTS AT THE EXPENSE OF CUSTOMERS ELSEWHERE, IS IN ITS UNMASKED
EFFECT THE LIBERTY TO DESTROY COMPETITION BY SELLING LOCALLY BELOW
COST, A WEAPON PROGRESSIVELY THE MORE DESTRUCTIVE IN THE HANDS OF THE
MORE POWERFUL, AND MOST DEADLY TO THE COMPETITOR OF LIMITED RESOURCES,
WHATEVER HIS MERIT AND EFFICIENCY.  WHILE THE BILL AS NOW REPORTED
CLOSES THESE DANGEROUS LOOPHOLES, IT LEAVES THE FIELDS OF COMPETITION
FREE AND OPEN TO THE MOST EFFICIENT, AND THUS IN FACT PROTECTS THEM THE
MORE SECURELY AGAINST INUNDATIONS OF MERE POWER AND SIZE. 

"SPECIFIC PHRASES OF SECTION 2(A), AS NOW REPORTED, MAY BE NOTED AS
FOLLOWS: 

"ONE: 

"'  ...  WHERE EITHER OR ANY OF THE PURCHASES INVOLVED IN SUCH
DISCRIMINATION ARE IN COMMERCE ...  .' 

"SECTION 2(A) ATTACHES TO COMPETITIVE RELATIONS BETWEEN A GIVEN
SELLER AND HIS SEVERAL CUSTOMERS, AND THIS CLAUSE IS DESIGNED TO EXTEND
ITS SCOPE TO DISCRIMINATIONS BETWEEN INTERSTATE AND INTRASTATE
CUSTOMERS, AS WELL AS BETWEEN THOSE PURELY INTERSTATE.  DISCRIMINATIONS
IN EXCESS OF SOUND ECONOMIC DIFFERENCES INVOLVE GENERALLY AN ELEMENT OF
LOSS, WHETHER ONLY OF THE NECESSARY MINIMUM OF PROFITS OR OF ACTUAL
COSTS, THAT MUST BE RECOUPED FROM THE BUSINESS OF CUSTOMERS NOT GRANTED
THEM.  WHEN GRANTED BY A GIVEN SELLER TO HIS CUSTOMERS IN OTHER STATES,
AND DENIED TO THOSE WITHIN THE STATE, THEY INVOLVE THE USE OF THAT
INTERSTATE COMMERCE TO THE BURDEN AND INJURY OF THE LATTER.  WHEN
GRANTED TO THOSE WITHIN THE STATE AND DENIED TO THOSE BEYOND, THEY
INVOLVE CONVERSELY A DIRECTLY RESULTING BURDEN UPON INTERSTATE COMMERCE
WITH THE LATTER.  BOTH ARE WITHIN THE PROPER AND WELL-RECOGNIZED POWER
OF CONGRESS TO SUPPRESS." 

FN8 H.R. REP. NO. 2287, 74TH CONG., 2D SESS. 3: 

"THE PURPOSE OF THIS PROPOSED LEGISLATION IS TO RESTORE, SO FAR AS
POSSIBLE, EQUALITY OF OPPORTUNITY IN BUSINESS BY STRENGTHENING ANTI
TRUST LAWS AND BY PROTECTING TRADE AND COMMERCE AGAINST UNFAIR TRADE
PRACTICES AND UNLAWFUL PRICE DISCRIMINATION, AND ALSO AGAINST RESTRAINT
AND MONOPOLY FOR THE BETTER PROTECTION OF CONSUMERS, WORKERS, AND
INDEPENDENT PRODUCERS, MANUFACTURERS, MERCHANTS, AND OTHER
BUSINESSMEN. 

"TO ACCOMPLISH ITS PURPOSE, THE BILL AMENDS AND STRENGTHENS THE
CLAYTON ACT BY PROHIBITING DISCRIMINATIONS IN PRICE BETWEEN PURCHASERS
WHERE SUCH DISCRIMINATIONS CANNOT BE SHOWN TO BE JUSTIFIED BY
DIFFERENCES IN THE COST OF MANUFACTURE, SALE, OR DELIVERY RESULTING
FROM DIFFERENT METHODS OR QUANTITIES IN WHICH SUCH COMMODITIES ARE TO
SUCH PURCHASERS SOLD AND DELIVERED.  IT ALSO PROHIBITS BROKERAGE
ALLOWANCES EXCEPT FOR SERVICES ACTUALLY RENDERED, AND ADVERTISING AND
OTHER SERVICE ALLOWANCES UNLESS SUCH ALLOWANCES OR SERVICES ARE MADE
AVAILABLE TO ALL PURCHASERS ON PROPORTIONALLY EQUAL TERMS.  IT STRIKES
AT THE BASING-POINT METHOD OF SALE, WHICH LESSENS COMPETITION AND TENDS
TO CREATE A MONOPOLY." 

FN9  ID., P. 16: 

"THIS PROVISO REPRESENTS A CONTRACTION OF AN EXEMPTION NOW CONTAINED
IN SECTION 2 OF THE CLAYTON ACT WHICH PERMITS DISCRIMINATIONS WITHOUT
LIMIT WHERE MADE IN GOOD FAITH TO MEET COMPETITION.  IT SHOULD BE NOTED
THAT WHILE THE SELLER IS PERMITTED TO MEET LOCAL COMPETITION, IT DOES
NOT PERMIT HIM TO CUT LOCAL PRICES UNTIL HIS COMPETITOR HAS FIRST
OFFERED LOWER PRICES, AND THEN HE CAN GO NO FURTHER THAN TO MEET THOSE
PRICES.  IF HE GOES FURTHER, HE MUST DO SO LIKEWISE WITH ALL HIS OTHER
CUSTOMERS, OR MAKE HIMSELF LIABLE TO ALL OF THE PENALTIES OF THE ACT,
INCLUDING TREBLE DAMAGES.  IN OTHER WORDS, THE PROVISO PERMITS THE
SELLER TO MEET THE PRICE ACTUALLY PREVIOUSLY OFFERED BY A LOCAL
COMPETITOR.  IT PERMITS HIM TO GO NO FURTHER." 

FN10  FINAL REPORT ON THE CHAIN-STORE INVESTIGATION, S. DOC. NO. 4,
74TH CONG., 1ST SESS. 96: "A SIMPLE SOLUTION FOR THE UNCERTAINTIES AND
DIFFICULTIES OF ENFORCEMENT WOULD BE TO PROHIBIT UNFAIR AND UNJUST
DISCRIMINATION IN PRICE AND LEAVE IT TO THE ENFORCEMENT AGENCY, SUBJECT
TO REVIEW BY THE COURTS, TO APPLY THAT PRINCIPLE TO PARTICULAR CASES
AND SITUATIONS.  THE SOUNDNESS OF AND EXTENT TO WHICH THE PRESENT
PROVISOS WOULD CONSTITUTE VALID DEFENSES WOULD THUS BECOME A JUDICIAL
AND NOT A LEGISLATIVE MATTER. 

"THE COMMISSION THEREFORE RECOMMENDS THAT SECTION 2 OF THE CLAYTON
ACT BE AMENDED TO READ AS FOLLOWS: 

"'IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE, IN ANY
TRANSACTION IN OR AFFECTING SUCH COMMERCE, EITHER DIRECTLY OR
INDIRECTLY TO DISCRIMINATE UNFAIRLY OR UNJUSTLY IN PRICE BETWEEN
DIFFERENT PURCHASERS OF COMMODITIES, WHICH 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.'" 

THIS REPORT WAS UTILIZED BY THE HOUSE COMMITTEE DEALING WITH THE
PROPOSED ROBINSON-PATMAN LEGISLATION.  H.R. REP. NO. 2287, 74TH CONG.,
2D SESS. 3, 7. 

FN11  ID., P. 64:  "IF THE DISCRIMINATION IS 'ON ACCOUNT OF
DIFFERENCES IN THE GRADE, QUALITY, OR QUANTITY OF THE COMMODITY SOLD',
OR MAKES 'ONLY DUE ALLOWANCE FOR DIFFERENCE IN THE COST OF SELLING OR
TRANSPORTATION', OR IS 'MADE IN GOOD FAITH TO MEET COMPETITION', IT IS
NOT UNLAWFUL, EVEN THOUGH THE EFFECT 'MAY BE TO SUBSTANTIALLY LESSEN
COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE.' 
DISCRIMINATORY PRICE CONCESSIONS GIVEN TO PREVENT THE LOSS OF A CHAIN
STORE'S BUSINESS TO A COMPETING MANUFACTURER, TO PREVENT IT
MANUFACTURING ITS OWN GOODS, OR TO PREVENT IT FROM DISCOURAGING IN ITS
STORES THE SALE OF A GIVEN MANUFACTURER'S GOODS, MAY BE STRONGLY URGED
BY THE MANUFACTURER AS 'MADE IN GOOD FAITH TO MEET COMPETITION.'"  SEE
P. 90, ID. 

ATTENTION WAS CALLED TO THIS NEED.  H.R. REP. NO. 2287, 74TH CONG.,
2D SESS. 7:  "SOME OF THE DIFFICULTIES OF ENFORCEMENT OF THIS SECTION
AS IT STANDS ARE POINTED OUT IN THE (FINAL REPORT) OF THE FEDERAL TRADE
COMMISSION ABOVE REFERRED TO, AT PAGES 63 AND FOLLOWING." 

FN12  80 CONG. REC. 8235: 

"MR. CHAIRMAN, I WOULD LIKE TO ASK A QUESTION OF THE GENTLEMAN FROM
TEXAS (MR. PATMAN).  A GREAT MANY OF THE INDUSTRIES IN OHIO WERE VERY
MUCH IN FAVOR OF THE PROVISO IN THE SENATE BILL, APPEARING ON PAGE 4,
AND READING AS FOLLOWS: 

"'AND PROVIDED FURTHER, THAT NOTHING HEREIN CONTAINED SHALL PREVENT
DISCRIMINATION IN PRICE IN THE SAME OR DIFFERENT COMMODITIES MADE IN
GOOD FAITH TO MEET COMPETITION.' 

"I FIND THAT ON PAGE 9 OF THE PATMAN BILL, BEGINNING IN LINE 14,
THERE APPEAR THESE WORDS: 

"'PROVIDED, HOWEVER, THAT NOTHING HEREIN CONTAINED SHALL PREVENT A
SELLER REBUTTING THE PRIMA FACIE CASE THUS MADE BY SHOWING THAT HIS
LOWER PRICE TO ANY PURCHASER OR PURCHASERS WAS MADE IN GOOD FAITH TO
MEET AN EQUALLY LOW PRICE OF A COMPETITOR.' 

"WILL THE GENTLEMAN EXPLAIN THE DIFFERENCE BETWEEN THESE TWO
PROPOSALS? 

"MR. PATMAN.  IF THE SENATE AMENDMENT SHOULD BE ADOPTED IT WOULD
REALLY DESTROY THE BILL.  IT WOULD PERMIT THE CORPORATE CHAINS TO GO
INTO A LOCAL MARKET, CUT THE PRICE DOWN SO LOW THAT IT WOULD DESTROY
LOCAL COMPETITORS AND MAKE UP FOR THEIR LOSSES IN OTHER PLACES WHERE
THEY HAD ALREADY DESTROYED THEIR COMPETITORS.  ONE OF THE OBJECTS OF
THE BILL IS TO GET AROUND THAT PHRASE AND PREVENT THE LARGE CORPORATE
CHAINS FROM SELLING BELOW COST IN CERTAIN LOCALITIES, THUS DESTROYING
THE INDEPENDENT MERCHANTS, AND MAKING IT UP AT OTHER PLACES WHERE THEIR
COMPETITORS HAVE ALREADY BEEN DESTROYED.  I HOPE THE GENTLEMAN WILL NOT
INSIST ON THE SENATE AMENDMENT, BECAUSE IT WOULD BE VERY DESTRUCTIVE OF
THE BILL.  THE PHRASE 'EQUALLY LOW PRICE' MEANS THE CORPORATE CHAIN
WILL HAVE THE RIGHT TO COMPETE WITH THE LOCAL MERCHANTS.  THEY MAY MEET
COMPETITION, WHICH IS ALL RIGHT, BUT THEY CANNOT CUT DOWN THE PRICE
BELOW COST FOR THE PURPOSE OF DESTROYING THE LOCAL MAN. 

"MR. COOPER OF OHIO.  WHAT DOES THE GENTLEMAN'S PROVISO MEAN? 

"MR. PATMAN.  IT MEANS THEY MAY MEET COMPETITION, BUT NOT CUT DOWN
THE PRICE BELOW COST.  IT MEANS AN EQUALLY LOW PRICE BUT NOT BELOW
THAT.  IT PERMITS COMPETITION, BUT IT DOES NOT PERMIT THEM TO CUT THE
PRICE BELOW COST IN ORDER TO DESTROY THEIR COMPETITORS.  I HOPE THE
GENTLEMAN WILL NOT INSIST ON THE SENATE AMENDMENT."    BUT SEE PP. 265
AND 266, INFRA. 

FN13  H.R. REP. NO. 2951, 74TH CONG., 2D SESS. 6-7: 

"THE SENATE BILL CONTAINED A FURTHER PROVISO - 

"'THAT NOTHING HEREIN CONTAINED SHALL PREVENT DISCRIMINATION IN PRICE
IN THE SAME OR DIFFERENT COMMUNITIES MADE IN GOOD FAITH TO MEET
COMPETITION.' 

"THIS LANGUAGE IS FOUND IN EXISTING LAW, AND IN THE OPINION OF THE
CONFEREES IS ONE OF THE OBSTACLES TO ENFORCEMENT OF THE PRESENT CLAYTON
ACT.  THE SENATE RECEDED, AND THE LANGUAGE IS STRICKEN.  A PROVISION
RELATING TO THE QUESTION OF MEETING COMPETITION, INTENDED TO OPERATE
ONLY AS A RULE OF EVIDENCE IN A PROCEEDING BEFORE THE FEDERAL TRADE
COMMISSION, IS INCLUDED IN SUBSECTION (B) IN THE CONFERENCE TEXT AS
FOLLOWS: 

"'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.'" 

FN14  80 CONG. REC. 9418: 

"IN CONNECTION WITH THE ABOVE RULE AS TO BURDEN OF PROOF, IT IS ALSO
PROVIDED THAT A SELLER MAY SHOW THAT HIS LOWER PRICE WAS MADE IN GOOD
FAITH TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR, OR THAT HIS
FURNISHING OF SERVICES OR FACILITIES WAS MADE IN GOOD FAITH TO MEET
THOSE FURNISHED BY A COMPETITOR.  IT IS TO BE NOTED, HOWEVER, THAT THIS
DOES NOT SET UP THE MEETING OF COMPETITION AS AN ABSOLUTE BAR TO A
CHARGE OF DISCRIMINATION UNDER THE BILL.  IT MERELY PERMITS IT TO BE
SHOWN IN EVIDENCE.  THIS PROVISION IS ENTIRELY PROCEDURAL.  IT DOES NOT
DETERMINE SUBSTANTIVE RIGHTS, LIABILITIES, AND DUTIES.  THEY ARE FIXED
IN THE OTHER PROVISIONS OF THE BILL.  IT LEAVES IT A QUESTION OF FACT
TO BE DETERMINED IN EACH CASE, WHETHER THE COMPETITION TO BE MET WAS
SUCH AS TO JUSTIFY THE DISCRIMINATION GIVEN, AS ONE LYING WITHIN THE
LIMITATIONS LAID DOWN BY THE BILL, AND WHETHER THE WAY IN WHICH THE
COMPETITION WAS MET LIES WITHIN THE LATITUDE ALLOWED BY THOSE
LIMITATIONS. 

"THIS PROCEDURAL PROVISION CANNOT BE CONSTRUED AS A CARTE BLANCHE
EXEMPTION TO VIOLATE THE BILL SO LONG AS A COMPETITOR CAN BE SHOWN TO
HAVE VIOLATED IT FIRST, NOR SO LONG AS THAT COMPETITION CANNOT BE MET
WITHOUT THE USE OF OPPRESSIVE DISCRIMINATIONS IN VIOLATION OF THE
OBVIOUS INTENT OF THE BILL. 

.         .         .         .         . 

"IF THIS PROVISO WERE CONSTRUED TO PERMIT THE SHOWING OF A COMPETING
OFFER AS AN ABSOLUTE BAR TO LIABILITY FOR DISCRIMINATION, THEN IT WOULD
NULLIFY THE ACT ENTIRELY AT THE VERY INCEPTION OF ITS ENFORCEMENT, FOR
IN NEARLY EVERY CASE MASS BUYERS RECEIVE SIMILAR DISCRIMINATIONS FROM
COMPETING SELLERS OF THE SAME PRODUCT.  ONE VIOLATION OF LAW CANNOT BE
PERMITTED TO JUSTIFY ANOTHER.  AS IN ANY CASE OF SELF-DEFENSE, WHILE
THE ATTACK AGAINST WHICH THE DEFENSE IS CLAIMED MAY BE SHOWN IN
EVIDENCE, ITS COMPETENCY AS A BAR DEPENDS ALSO UPON WHETHER IT WAS A
LEGAL OR ILLEGAL ATTACK.  A DISCRIMINATION IN VIOLATION OF THIS BILL IS
IN PRACTICAL EFFECT A COMMERCIAL BRIBE TO LURE THE BUSINESS OF THE
FAVORED CUSTOMER AWAY FROM THE COMPETITOR, AND IF ONE BRIBE WERE
PERMITTED TO JUSTIFY ANOTHER THE BILL WOULD BE FUTILE TO ACHIEVE ITS
PLAINLY INTENDED PURPOSES." 

FN15  SEE N. 6, SUPRA. 

FN16  THE COURT'S OPINION IN THIS CASE REFERS, P. 244, NOTES 10 AND
11, TO THE OPINIONS OF THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN
CORN PRODUCTS AND STALEY, 144 F.2D 211 AND 221.  BUT THAT COURT
REVERSED ITS POSITION IN THE OPINION BELOW, 173 F.2D 210, 216.  IT IS
FAIR TO ASSUME THAT REVERSAL WAS BECAUSE OF OUR OPINIONS IN CORN
PRODUCTS AND STALEY. 

FN17  IT IS HARDLY NECESSARY TO NOTE THAT THE WISDOM OF THE ENACTMENT
IS NOT FOR THE COMMISSION NOR THE COURTS IN ENFORCING THE ACT.  THE
COMMISSION RECENTLY HAS ADVISED CONGRESS THAT WHILE "ON BALANCE IT
WOULD BE PREFERABLE TO MAKE THE GOOD-FAITH MEETING OF COMPETITION A
COMPLETE DEFENSE," IT "DOES NOT STRONGLY URGE EITHER VIEW UPON THE
CONGRESS."  HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE
ON THE JUDICIARY ON S. 1008, 81ST CONG., 1ST SESS., JUNE 8 AND 14,
1949, P. 61.  COMPARE STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293,
311.  THIS STATEMENT CONFIRMED THE COMMISSION'S POSITION TAKEN IN THIS
CASE.  THERE WERE OTHER OFFICIALS OF THE COMMISSION WHO HAVE TAKEN THE
VIEW ADOPTED BY THE COURT. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK JOIN IN THIS DISSENT. 
..END :















DOWD V. COOK, 340 U.S. 206 


NO. 66.  ARGUED NOVEMBER 28, 1950.  - DECIDED JANUARY 2, 1951.  - 180
F.2D 212, JUDGMENT VACATED. 


IN A HABEAS CORPUS PROCEEDING BROUGHT BY RESPONDENT IN A FEDERAL
DISTRICT COURT IN 1948, THE COURT FOUND THAT IN 1931 RESPONDENT WAS
CONVICTED OF MURDER IN AN INDIANA STATE COURT, SENTENCED TO LIFE
IMPRISONMENT, AND IMMEDIATELY CONFINED IN A STATE PRISON; THAT HIS
TIMELY APPEAL WAS PREVENTED BY THE WARDEN'S SUPPRESSION OF HIS APPEAL
PAPERS PURSUANT TO PRISON RULES; THAT HE SOUGHT UNSUCCESSFULLY TO HAVE
THE STATE COURTS REVIEW HIS CONVICTION BY CORAM NOBIS IN 1937 AND BY
HABEAS CORPUS IN 1947; AND THAT IN 1946 HIS PETITION TO THE STATE
SUPREME COURT FOR A DELAYED APPEAL WAS DENIED.  THE DISTRICT COURT
ORDERED RESPONDENT'S DISCHARGE, AND THE COURT OF APPEALS AFFIRMED. 
HELD: 

1.  THE PREVENTION OF RESPONDENT'S ORIGINAL TIMELY APPEAL BY THE
WARDEN'S SUPPRESSION OF HIS APPEAL PAPERS WAS A VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION.  PP. 207-208. 

2.  EVEN IF RES JUDICATA WERE APPLICABLE IN HABEAS CORPUS
PROCEEDINGS, THE 1946 LITIGATION IN THE STATE SUPREME COURT WAS NOT RES
JUDICATA OF THE ISSUES IN THE PRESENT CASE.  P. 208. 

3.  RESPONDENT DID NOT "WAIVE" HIS RIGHT OF APPEAL.  PP. 208-209. 

4.  IN THE CIRCUMSTANCES OF THIS CASE, NOTHING SHORT OF AN ACTUAL
APPELLATE DETERMINATION OF THE MERITS OF THE CONVICTION WILL CURE THE
ORIGINAL DENIAL OF EQUAL PROTECTION OF THE LAW.  P. 209. 

5.  THE JUDGMENTS OF THE COURT OF APPEALS AND THE DISTRICT COURT ARE
VACATED AND THE CAUSE IS REMANDED, WITH DIRECTIONS TO THE DISTRICT
COURT TO ENTER SUCH ORDERS AS ARE APPROPRIATE TO ALLOW THE STATE A
REASONABLE TIME IN WHICH TO AFFORD RESPONDENT THE FULL APPELLATE REVIEW
HE WOULD HAVE RECEIVED BUT FOR THE SUPPRESSION OF HIS APPEAL PAPERS, IN
DEFAULT WHEREOF BY THE STATE RESPONDENT SHALL BE DISCHARGED.  PP. 209
210. 

DOWD, WARDEN, V. UNITED STATES EX REL. COOK. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING SEEKING RESPONDENT'S RELEASE FROM
IMPRISONMENT UNDER SENTENCE OF A STATE COURT, THE DISTRICT COURT
ORDERED RESPONDENT DISCHARGED.  THE COURT OF APPEALS AFFIRMED.  180
F.2D 212.  THIS COURT GRANTED CERTIORARI.  340 U.S. 849.  JUDGMENTS
VACATED AND CAUSE REMANDED, P. 210. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, LAWRENCE E. COOK, BROUGHT THIS HABEAS CORPUS PROCEEDING
IN THE UNITED STATES DISTRICT COURT IN 1948.  AFTER HEARING EVIDENCE,
THE DISTRICT COURT FOUND AS FOLLOWS:  IN 1931 RESPONDENT WAS CONVICTED
OF MURDER IN AN INDIANA COURT, SENTENCED TO LIFE IMPRISONMENT, AND
IMMEDIATELY CONFINED IN THE STATE PENITENTIARY.  WITHIN THE SIX-MONTH
PERIOD ALLOWED FOR APPEAL AS OF RIGHT BY INDIANA LAW, RESPONDENT
PREPARED PROPER APPEAL PAPERS.  HIS EFFORTS TO FILE THE DOCUMENTS IN
THE STATE SUPREME COURT, HOWEVER, WERE FRUSTRATED BY THE WARDEN ACTING
PURSUANT TO PRISON RULES.  SUBSEQUENTLY, BUT AFTER THE SIX-MONTH PERIOD
HAD EXPIRED, THE BAN ON SENDING PAPERS FROM THE PRISON WAS LIFTED AND
RESPONDENT UNSUCCESSFULLY SOUGHT TO HAVE THE STATE COURTS REVIEW HIS
CONVICTION BY CORAM NOBIS IN 1937  FN1  AND BY HABEAS CORPUS IN 1945. 
FN2  IN 1946 HIS PETITION TO THE SUPREME COURT OF INDIANA FOR A DELAYED
APPEAL WAS DENIED.  FN3  ON THESE FINDINGS, THE DISTRICT COURT HELD
THAT THERE HAD BEEN A DENIAL OF EQUAL PROTECTION OF THE LAW FOR WHICH
THE STATE PROVIDED NO REMEDY, AND ORDERED RESPONDENT'S DISCHARGE.  THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED.  180 F.2D 212. 

IN THIS COURT THE STATE ADMITS, AS IT MUST, THAT A DISCRIMINATORY
DENIAL OF THE STATUTORY RIGHT OF APPEAL IS A VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  COCHRAN V. KANSAS, 316
U.S. 255.  IT CONTENDS, HOWEVER, THAT THE 1946 LITIGATION IN THE
SUPREME COURT OF INDIANA ESTABLISHED THAT THE PRISON AUTHORITIES HAD
NOT PREVENTED A TIMELY APPEAL BY RESPONDENT, AND THAT THE PRINCIPLE OF
RES JUDICATA PRECLUDED A CONTRARY DETERMINATION OF THIS FACT BY THE
DISTRICT COURT.  EVEN IF THE RULE OF RES JUDICATA WERE APPLICABLE IN
HABEAS CORPUS PROCEEDINGS, BUT CF. WALEY V. JOHNSTON, 316 U.S. 101,
105, IT WOULD HAVE NO BEARING IN THE PRESENT CASE.  THE INDIANA COURT
MADE ONLY ONE FINDING, AND THAT PERTAINED TO A MATTER NOT NOW IN
DISPUTE.  FN4 MOREOVER, SO FAR AS THE SUPPRESSION OF RESPONDENT'S
ORIGINAL APPEAL PAPERS IS CONCERNED, THE RECORD BEFORE US STRONGLY
INDICATES THAT THE FINDING ASCRIBED TO THE STATE SUPREME COURT COULD
NOT HAVE BEEN MADE. 

THE STATE ALSO CONTENDS THAT DESPITE THE DENIAL OF EQUAL PROTECTION,
RESPONDENT IS NO LONGER ENTITLED TO RELIEF BECAUSE HE "WAIVED" HIS
RIGHT OF APPEAL.  THE ARGUMENT IS THAT THE BAN ON SENDING PAPERS FROM
THE PRISON SUSPENDED THE STATUTORY LIMITATION ON THE TIME FOR REVIEW SO
THAT RESPONDENT COULD HAVE APPEALED WITHIN SIX MONTHS FROM THE DATE THE
RESTRAINT WAS REMOVED IN 1933.  WE CANNOT ACCEPT THIS VIEW.  IN 1931
INDIANA APPELLATE JURISDICTION APPARENTLY WAS CONDITIONED ON A TIMELY
FILING OF THE PROPER PAPERS.  FN5  MORE RECENTLY, THE RIGID RULE MAY
HAVE BEEN RELAXED SO AS TO PROVIDE DISCRETIONARY DELAYED APPEALS FOR
CONVICTED DEFENDANTS.  FN6  BUT WE FIND NO INDICATION EITHER THAT THERE
IS ANY TIME LIMITATION ON THE TAKING OF DELAYED APPEALS OR THAT SUCH
APPEALS WILL EVER BE HEARD AS OF RIGHT.  THE RECORD SHOWS THAT
RESPONDENT'S DELAYED APPEAL WAS DENIED IN 1946, APPARENTLY AS A MATTER
WITHIN THE STATE COURT'S DISCRETION.  FN7  CONSEQUENTLY, RESPONDENT HAS
NEVER HAD THE SAME REVIEW OF THE JUDGMENT AGAINST HIM AS HE WOULD HAVE
HAD AS OF RIGHT IN 1931 BUT FOR THE SUPPRESSION OF HIS PAPERS.  WE
THEREFORE AGREE WITH THE COURT OF APPEALS THAT, WHILE THE STATE'S
"WAIVER" THEORY IS INGENIOUS, IT IS WITHOUT MERIT.  UNDER THE PECULIAR
CIRCUMSTANCES OF THIS CASE, NOTHING SHORT OF AN ACTUAL APPELLATE
DETERMINATION OF THE MERITS OF THE CONVICTION - ACCORDING TO THE
PROCEDURE PREVAILING IN ORDINARY CASES - WOULD CURE THE ORIGINAL DENIAL
OF EQUAL PROTECTION OF THE LAW. 

THERE REMAINS THE QUESTION OF THE DISPOSITION TO BE MADE OF THIS
CASE.  FORTUNATELY, WE ARE NOT CONFRONTED WITH THE DILEMMA ENVISAGED BY
THE STATE OF HAVING TO CHOOSE BETWEEN ORDERING AN ABSOLUTE DISCHARGE OF
THE PRISONER AND DENYING HIM ALL RELIEF.  THE DISTRICT COURT HAS POWER
IN A HABEAS CORPUS PROCEEDING TO "DISPOSE OF THE MATTER AS LAW AND
JUSTICE REQUIRE."  28 U.S.C. SEC. 2243.  THE FOURTEENTH AMENDMENT
PRECLUDES INDIANA FROM KEEPING RESPONDENT IMPRISONED IF IT PERSISTS IN
DEPRIVING HIM OF THE TYPE OF APPEAL GENERALLY AFFORDED THOSE CONVICTED
OF CRIME.  ON THE OTHER HAND, JUSTICE DOES NOT REQUIRE INDIANA TO
DISCHARGE RESPONDENT IF SUCH AN APPEAL IS GRANTED AND REVEALS A TRIAL
RECORD FREE FROM ERROR.  NOW THAT THIS COURT HAS DETERMINED THE FEDERAL
CONSTITUTIONAL QUESTION, INDIANA MAY FIND IT POSSIBLE TO PROVIDE THE
APPELLATE REVIEW TO WHICH RESPONDENT IS ENTITLED.  THE JUDGMENTS OF THE
COURT OF APPEALS AND THE DISTRICT COURT ARE VACATED AND THE CASE
REMANDED.  ON REMAND, THE DISTRICT COURT SHOULD ENTER SUCH ORDERS AS
ARE APPROPRIATE TO ALLOW THE STATE A REASONABLE TIME IN WHICH TO AFFORD
RESPONDENT THE FULL APPELLATE REVIEW HE WOULD HAVE RECEIVED BUT FOR THE
SUPPRESSION OF HIS PAPERS, FAILING WHICH HE SHALL BE DISCHARGED.  SEE
MAHLER V. EBY, 264 U.S. 32, 46.  IT IS SO ORDERED. 

FN1  SEE COOK V. STATE, 219 IND. 234, 37 N.E.2D 63; STATE EX REL.
COOK V. WICKENS, 222 IND. 383, 53 N.E.2D 630. 

FN2  STATE EX REL. COOK V. HOWARD, 223 IND. 694, 64 N.E.2D 25, CERT.
DENIED 327 U.S. 808. 

FN3  THIS ORDER IS UNREPORTED.  CERTIORARI TO REVIEW THE DENIAL OF
THE PETITION FOR DELAYED APPEAL WAS SOUGHT HERE AND DENIED.  330 U.S.
841. 

FN4  THE FINDING WAS THAT "THE BASIC ALLEGATION OF SAID PETITION TO
WIT:  THAT (COOK'S) COUNSEL REFUSED, WITHOUT PAY, TO TAKE AN APPEAL IS
NOT TRUE  ...  " 

FN5  DUDLEY V. STATE, 200 IND. 398, 161 N.E. 1; FARLOW V. STATE, 196
IND. 295, 142 N.E. 849; FARRELL V. STATE, 85 IND. 221; WINSETT V.
STATE, 54 IND. 437; LICHTENFELS V. STATE, 53 IND. 161. 

FN6  THE SUPREME COURT OF INDIANA SUGGESTED IN 1945 THAT THIS
RESPONDENT MIGHT BE ABLE TO TAKE A DELAYED APPEAL.  STATE EX REL. COOK
V. HOWARD, 223 IND. 694, 64 N.E.2D 25.  CF. ALSO WARREN V. INDIANA
TELEPHONE CO., 217 IND. 93, 26 N.E.2D 399; STATE EX REL. WHITE V.
HILGEMANN, 218 IND. 572, 34 N.E.2D 129; BUT CF. JOHNS V. STATE, 227
IND. 737, 89 N.E.2D 281.  IN 1947 INDIANA ENACTED THE MORE LIBERAL RULE
INTO ITS STATUTORY LAW.  BURNS' IND. ANN. STAT., 1942 REPLACEMENT VO.
(CUM. SUPP. 1949), SEC. 9-3305. 

FN7  SEE NOTE 3 SUPRA; CF. SWEET V. STATE, 226 IND. 566, 81 N.E.2D
679. 
..END :
























KIEFER-STEWART CO. V. SEAGRAM & SONS, 340 U.S. 211 


NO. 297.  ARGUED DECEMBER 8, 1950.  - DECIDED JANUARY 2, 1951.  - 182
F.2D 228, REVERSED. 


1.  AN AGREEMENT AMONG COMPETITORS IN INTERSTATE COMMERCE TO FIX
MAXIMUM RESALE PRICES OF THEIR PRODUCTS VIOLATES THE SHERMAN ACT.  P.
213. 

2.  UNDER THE SHERMAN ACT, A COMBINATION FORMED FOR THE PURPOSE AND
WITH THE EFFECT OF RAISING, DEPRESSING, FIXING, PEGGING, OR STABILIZING
THE PRICE OF A COMMODITY IN INTERSTATE OR FOREIGN COMMERCE IS ILLEGAL
PER SE.  P. 213. 

3.  THE EVIDENCE IN THIS CASE WAS SUFFICIENT TO SUPPORT A FINDING BY
THE JURY THAT RESPONDENTS HAD CONSPIRED TO FIX MAXIMUM RESALE PRICES. 
PP. 213-214. 

4.  IN AN ACTION UNDER THE SHERMAN ACT FOR TREBLE DAMAGES, BROUGHT BY
A COMPLAINANT INJURED BY A CONSPIRACY OF SELLERS OF LIQUOR IN
INTERSTATE COMMERCE TO FIX MAXIMUM RESALE PRICES, IT IS NO DEFENSE THAT
THE COMPLAINANT HAD CONSPIRED WITH OTHERS TO FIX MINIMUM PRICES FOR
LIQUOR IN VIOLATION OF THE ANTITRUST LAWS.  P. 214. 

5.  THE FACT THAT CORPORATIONS ARE UNDER COMMON OWNERSHIP AND CONTROL
DOES NOT RELIEVE THEM FROM LIABILITY UNDER THE ANTITRUST LAWS,
ESPECIALLY WHERE THEY HOLD THEMSELVES OUT AS COMPETITORS.  P. 215. 

6.  SINCE THE DISTRICT COURT'S INSTRUCTIONS TO THE JURY SUBMITTED TO
THEM ONLY THE CAUSE OF ACTION UNDER THE SHERMAN ACT, IT DID NOT ERR IN
REFUSING A MORE FORMAL WITHDRAWAL OF AN ISSUE CONCERNING A VIOLATION OF
THE CLAYTON ACT, WHICH HAD BEEN CHARGED IN THE COMPLAINT BUT WHICH WAS
NOT PROVED.  P. 215. 

KIEFER-STEWART CO. V. JOSEPH E. SEAGRAM & SONS, INC. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN AN ACTION UNDER THE SHERMAN ACT FOR TREBLE DAMAGES, THE JURY
RETURNED A VERDICT FOR PETITIONER AND DAMAGES WERE AWARDED.  THE COURT
OF APPEALS REVERSED.  182 F.2D 228.  THIS COURT GRANTED CERTIORARI. 
340 U.S. 863.  REVERSED, P. 215. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, KIEFER-STEWART COMPANY, IS AN INDIANA DRUG CONCERN
WHICH DOES A WHOLESALE LIQUOR BUSINESS.  RESPONDENTS, SEAGRAM AND
CALVERT CORPORATIONS, ARE AFFILIATED COMPANIES THAT SELL LIQUOR IN
INTERSTATE COMMERCE TO INDIANA WHOLESALERS.  PETITIONER BROUGHT THIS
ACTION IN A FEDERAL DISTRICT COURT FOR TREBLE DAMAGES UNDER THE SHERMAN
ACT.  15 U.S.C. SECS. 1, 15.  THE COMPLAINT CHARGED THAT RESPONDENTS
HAD AGREED OR CONSPIRED TO SELL LIQUOR ONLY TO THOSE INDIANA
WHOLESALERS WHO WOULD RESELL AT PRICES FIXED BY SEAGRAM AND CALVERT,
AND THAT THIS AGREEMENT DEPRIVED PETITIONER OF A CONTINUING SUPPLY OF
LIQUOR TO ITS GREAT DAMAGE* .  ON THE TRIAL, EVIDENCE WAS INTRODUCED
TENDING TO SHOW THAT RESPONDENTS HAD FIXED MAXIMUM PRICES ABOVE WHICH
THE WHOLESALERS COULD NOT RESELL.  THE JURY RETURNED A VERDICT FOR
PETITIONER AND DAMAGES WERE AWARDED.  THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT REVERSED.  182 F.2D 228.  IT HELD THAT AN AGREEMENT
AMONG RESPONDENTS TO FIX MAXIMUM RESALE PRICES DID NOT VIOLATE THE
SHERMAN ACT BECAUSE SUCH PRICES PROMOTED RATHER THAN RESTRAINED
COMPETITION.  IT ALSO HELD THE EVIDENCE INSUFFICIENT TO SHOW THAT
RESPONDENTS HAD ACTED IN CONCERT.  DOUBT AS TO THE CORRECTNESS OF THE
DECISION ON QUESTIONS IMPORTANT IN ANTITRUST LITIGATION PROMPTED US TO
GRANT CERTIORARI.  340 U.S. 863. 

*PETITIONER ALSO CHARGED A VIOLATION OF THE CLAYTON ACT, 15 U.S.C.
SEC. 18, BUT THIS THEORY HAS BEEN ABANDONED AND IS NOT IMPORTANT HERE. 
SEE P. 215, INFRA. 

THE COURT OF APPEALS ERRED IN HOLDING THAT AN AGREEMENT AMONG
COMPETITORS TO FIX MAXIMUM RESALE PRICES OF THEIR PRODUCTS DOES NOT
VIOLATE THE SHERMAN ACT.  FOR SUCH AGREEMENTS, NO LESS THAN THOSE TO
FIX MINIMUM PRICES, CRIPPLE THE FREEDOM OF TRADERS AND THEREBY RESTRAIN
THEIR ABILITY TO SELL IN ACCORDANCE WITH THEIR OWN JUDGMENT.  WE
REAFFIRM WHAT WE SAID IN UNITED STATES V. SOCONY-VACUUM OIL CO., 310
U.S. 150, 223:  "UNDER THE SHERMAN ACT A COMBINATION FORMED FOR THE
PURPOSE AND WITH THE EFFECT OF RAISING, DEPRESSING, FIXING, PEGGING, OR
STABILIZING THE PRICE OF A COMMODITY IN INTERSTATE OR FOREIGN COMMERCE
IS ILLEGAL PER SE." 

THE COURT OF APPEALS ALSO ERRED IN HOLDING THE EVIDENCE INSUFFICIENT
TO SUPPORT A FINDING BY THE JURY THAT RESPONDENTS HAD CONSPIRED TO FIX
MAXIMUM RESALE PRICES.  THE JURY WAS AUTHORIZED BY THE EVIDENCE TO
ACCEPT THE FOLLOWING AS FACTS:  SEAGRAM REFUSED TO SELL TO PETITIONER
AND OTHERS UNLESS THE PURCHASERS AGREED TO THE MAXIMUM RESALE PRICE
FIXED BY SEAGRAM.  CALVERT WAS AT FIRST WILLING TO SELL WITHOUT THIS
RESTRICTIVE CONDITION AND ARRANGEMENTS WERE MADE FOR PETITIONER TO BUY
LARGE QUANTITIES OF CALVERT LIQUOR.  PETITIONER SUBSEQUENTLY WAS
INFORMED BY CALVERT, HOWEVER, THAT THE ARRANGEMENTS WOULD NOT BE
CARRIED OUT BECAUSE CALVERT HAD "TO GO ALONG WITH SEAGRAM."  MOREOVER,
ABOUT THIS TIME CONFERENCES WERE HELD BY OFFICIALS OF THE RESPONDENTS
CONCERNING SALES OF LIQUOR TO PETITIONER.  THEREAFTER, ON IDENTICAL
TERMS AS TO THE FIXING OF RETAIL PRICES, BOTH SEAGRAM AND CALVERT
RESUMED SALES TO OTHER INDIANA WHOLESALERS WHO AGREED TO ABIDE BY SUCH
CONDITIONS, BUT NO SHIPMENTS HAVE BEEN MADE TO PETITIONER. 

THE FOREGOING IS SUFFICIENT TO JUSTIFY THE CHALLENGED JURY FINDING
THAT RESPONDENTS HAD A UNITY OF PURPOSE OR A COMMON DESIGN AND
UNDERSTANDING WHEN THEY FORBADE THEIR PURCHASERS TO EXCEED THE FIXED
CEILINGS.  THUS, THERE IS SUPPORT FOR THE CONCLUSION THAT A CONSPIRACY
EXISTED, AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 809-810,
EVEN THOUGH, AS RESPONDENTS POINT OUT, THERE IS OTHER TESTIMONY IN THE
RECORD INDICATING THAT THE PRICE POLICIES OF SEAGRAM AND CALVERT WERE
ARRIVED AT INDEPENDENTLY. 

RESPONDENTS ALSO SEEK TO SUPPORT THE JUDGMENT OF REVERSAL ON OTHER
GROUNDS NOT PASSED ON BY THE COURT OF APPEALS BUT WHICH HAVE BEEN
ARGUED HERE BOTH ORALLY AND IN THE BRIEFS.  THESE GROUNDS RAISE ONLY
ISSUES OF LAW NOT CALLING FOR EXAMINATION OR APPRAISAL OF EVIDENCE AND
WE WILL CONSIDER THEM.  RESPONDENTS INTRODUCED EVIDENCE IN THE DISTRICT
COURT DESIGNED TO SHOW THAT PETITIONER HAD AGREED WITH OTHER INDIANA
WHOLESALERS TO SET MINIMUM PRICES FOR THE SALE OF LIQUOR IN VIOLATION
OF THE ANTITRUST LAWS.  IT IS NOW CONTENDED THAT THE TRIAL COURT ERRED
IN CHARGING THE JURY THAT PETITIONER'S PART IN SUCH A CONSPIRACY, EVEN
IF PROVED, WAS NO DEFENSE TO THE PRESENT CAUSE OF ACTION.  WE HOLD THAT
THE INSTRUCTION WAS CORRECT.  SEAGRAM AND CALVERT ACTING INDIVIDUALLY
PERHAPS MIGHT HAVE REFUSED TO DEAL WITH PETITIONER OR WITH ANY OR ALL
OF THE INDIANA WHOLESALERS.  BUT THE SHERMAN ACT MAKES IT AN OFFENSE
FOR RESPONDENTS TO AGREE AMONG THEMSELVES TO STOP SELLING TO PARTICULAR
CUSTOMERS.  IF PETITIONER AND OTHERS WERE GUILTY OF INFRACTIONS OF THE
ANTITRUST LAWS, THEY COULD BE HELD RESPONSIBLE IN APPROPRIATE
PROCEEDINGS BROUGHT AGAINST THEM BY THE GOVERNMENT OR BY INJURED
PRIVATE PERSONS.  THE ALLEGED ILLEGAL CONDUCT OF PETITIONER, HOWEVER,
COULD NOT LEGALIZE THE UNLAWFUL COMBINATION BY RESPONDENTS NOR IMMUNIZE
THEM AGAINST LIABILITY TO THOSE THEY INJURED.  CF. FASHION ORIGINATORS'
GUILD V. TRADE COMM'N, 312 U.S. 457; MANDEVILLE ISLAND FARMS V.
AMERICAN CRYSTAL SUGAR CO., 334 U.S. 219, 242-243. 

RESPONDENTS NEXT SUGGEST THAT THEIR STATUS AS "MERE INSTRUMENTALITIES
OF A SINGLE MANUFACTURING-MERCHANDIZING UNIT" MAKES IT IMPOSSIBLE FOR
THEM TO HAVE CONSPIRED IN A MANNER FORBIDDEN BY THE SHERMAN ACT.  BUT
THIS SUGGESTION RUNS COUNTER TO OUR PAST DECISIONS THAT COMMON
OWNERSHIP AND CONTROL DOES NOT LIBERATE CORPORATIONS FROM THE IMPACT OF
THE ANTITRUST LAWS.  E.G. UNITED STATES V. YELLOW CAB CO., 332 U.S.
218.  THE RULE IS ESPECIALLY APPLICABLE WHERE, AS HERE, RESPONDENTS
HOLD THEMSELVES OUT AS COMPETITORS. 

IT IS ALSO CLAIMED THAT THE DISTRICT COURT IMPROPERLY REFUSED TO
WITHDRAW FROM THE JURY AN ISSUE AS TO RESPONDENTS' VIOLATION OF THE
CLAYTON ACT WHICH HAD BEEN CHARGED IN THE COMPLAINT BUT WHICH WAS NOT
PROVED.  A FAIR READING OF THE INSTRUCTIONS TO THE JURY, HOWEVER,
REVEALS THAT THE TRIAL COURT SUBMITTED TO THEM ONLY THE CAUSE OF ACTION
UNDER THE SHERMAN ACT.  WE ARE CONVINCED FROM THIS RECORD THAT A MORE
FORMAL WITHDRAWAL OF THE CLAYTON ACT ISSUE WOULD HAVE SERVED SOLELY TO
CONFUSE. 

OTHER CONTENTIONS OF ERROR IN THE ADMISSION OF EVIDENCE AND IN THE
CHARGE TO THE JURY ARE SO DEVOID OF MERIT THAT IT IS UNNECESSARY TO
DISCUSS THEM. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THAT OF THE
DISTRICT COURT IS AFFIRMED.  IT IS SO ORDERED. 
..END :







ALABAMA G.S.R. CO. V. UNITED STATES, 340 U.S. 216 


ARGUED NOVEMBER 8-9, 1950.  - DECIDED JANUARY 2, 1951.  - 88 F.SUPP. 
982, AFFIRMED. 


AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, ISSUED PURSUANT TO
SEC. 307(D) OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. SEC. 907(D),
REQUIRED CERTAIN COMMON CARRIERS BY RAILROAD AND CERTAIN INTERSTATE
BARGE LINES TO ESTABLISH JOINT THROUGH ROUTES FOR THE TRANSPORTATION OF
PROPERTY, AND TO ESTABLISH AND APPLY TO SUCH THROUGH ROUTES JOINT RATES
BASED ON PRESCRIBED DIFFERENTIALS FROM HIGHER ALL-RAIL RATES.  THE
DIFFERENTIALS WERE ABSORBED BY THE BARGE LINES, BUT THE COMMISSION MADE
NO FINDING THAT BARGE-RAIL COSTS WERE LOWER THAN ALL-RAIL COSTS.  HELD:
THE ORDER OF THE COMMISSION IS SUSTAINED.  PP. 218-229. 

1.  A FINDING OF LESSER COST OF BARGE SERVICE IS NOT INDISPENSABLE TO
THE VALIDITY OF THE COMMISSION'S ORDER.  PP. 223-225. 

(A) THE BARGE-RAIL RATES BASED ON THE PRESCRIBED DIFFERENTIALS WERE
CONSIDERED BY THE COMMISSION TO BE COMPENSATORY WITH RESPECT TO THE
BARGE LINES.  P. 224. 

(B)  THE JUDGMENT OF THE COMMISSION THAT COMPETITION BETWEEN BARGE
AND RAIL SERVICE WAS WORTH PRESERVING WAS LEGITIMATELY RESTED ON
RELEVANT FACTORS OTHER THAN LESSER COST OF SERVICE.  PP. 224-225. 

2.  THE COMMISSION'S DETERMINATION THAT ITS ORDER IS IN ACCORDANCE
WITH GENERAL EXPRESSIONS OF CONGRESSIONAL POLICY IS NOT THE SOLE BASIS
OF THE ORDER, SINCE THE COMMISSION GAVE CAREFUL CONSIDERATION TO OTHER
RELEVANT FACTORS.  PP. 225-226. 

3.  THE PRESCRIPTION OF DIFFERENTIALS IN THIS PROCEEDING DOES NOT
DEPRIVE THE APPELLANT RAILROADS OF THEIR INHERENT ADVANTAGES CONTRARY
TO THE NATIONAL TRANSPORTATION POLICY.  I.C.C. V. MECHLING, 330 U.S.
567, DISTINGUISHED.  PP. 226-227. 

4.  THE BASIC FINDINGS ESSENTIAL TO THE STATUTORY VALIDITY OF THE
ORDER ARE SUFFICIENTLY DISCLOSED IN THE WRITTEN REPORT OF THE
COMMISSION IN THIS CASE.  PP. 227-228. 

5.  THE ORDER OF THE COMMISSION IS NOT INVALID AS GIVING A PREFERENCE
TO THE PORT OF NEW ORLEANS OVER CERTAIN PORTS OF GEORGIA AND TEXAS, IN
VIOLATION OF ART. I, SEC. 9, CL. 6 OF THE FEDERAL CONSTITUTION, SINCE
THAT CLAUSE DOES NOT FORBID DISCRIMINATIONS AS BETWEEN PORTS, AND SINCE
WHATEVER PREFERENCE THERE IS RESULTS FROM GEOGRAPHY AND NOT FROM ANY
ACTION OF THE COMMISSION.  PP. 228-229. 

ALABAMA GREAT SOUTHERN RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

NO. 45.  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS* . 

*TOGETHER WITH NO. 46, GALVESTON CHAMBER OF COMMERCE ET AL. V. UNITED
STATES ET AL.; NO. 47, RAILROAD COMMISSION OF TEXAS V. UNITED STATES ET
AL.; AND NO. 48, SAVANNAH SUGAR REFINING CORP. V. UNITED STATES ET AL.,
ALSO ON APPEALS TO THE SAME COURT. 

IN A SUIT TO ENJOIN THE ENFORCEMENT OF AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION, THE DISTRICT COURT OF THREE JUDGES DENIED THE
INJUNCTION AND DISMISSED THE COMPLAINT.  88 F.SUPP.  982.  ON DIRECT
APPEALS TO THIS COURT, AFFIRMED, P. 229. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

IN NO. 45 APPELLANT COMMON CARRIERS BY RAILROAD BROUGHT THIS SUIT
AGAINST THE UNITED STATES IN THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS TO ENJOIN AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION ISSUED JUNE 13, 1949, IN A PROCEEDING INSTITUTED BY THE
COMMISSION ENTITLED RAIL AND BARGE JOINT RATES, NO. 26712 ON THE
COMMISSION'S DOCKET.  APPELLEE INTERSTATE COMMERCE COMMISSION
INTERVENED AS A PARTY DEFENDANT BEFORE THE DISTRICT COURT, AS DID
APPELLEE COMMON CARRIERS BY WATER, AMERICAN BARGE LINE COMPANY
(AMERICAN), INLAND WATERWAYS CORPORATION, DOING BUSINESS AS FEDERAL
BARGE LINES (FEDERAL), AND MISSISSIPPI VALLEY BARGE LINE COMPANY
(VALLEY).  A STATUTORY THREE-JUDGE COURT HEARD THE CASE AND, UPON
FINDINGS OF FACT MADE AND CONCLUSIONS OF LAW STATED, DENIED THE
INJUNCTION AND DISMISSED THE COMPLAINT.  88 F.SUPP.  982.  THIS DIRECT
APPEAL UNDER 28 U.S.C. SEC. 1253 FOLLOWED. 

THE RAIL AND BARGE JOINT RATES PROCEEDING BEFORE THE COMMISSION WAS
INSTITUTED IN 1934 AS AN INVESTIGATION ANCILLARY TO CERTAIN FORMAL
COMPLAINTS BEFORE THE COMMISSION UNDER SEC. 3(E) OF THE INLAND
WATERWAYS CORPORATION ACT, AS AMENDED BY THE DENISON ACT, 45 STAT. 980,
FN1  AND ANCILLARY TO OTHER PROCEEDINGS INVOLVING THE SAME SUBJECT
MATTER AS THE COMPLAINTS.  THE INVESTIGATION INSTITUTED CONCERNED THE
REASONABLENESS AND LAWFULNESS OF EXISTING THROUGH ROUTES AND JOINT
RATES, RULES, REGULATIONS AND PRACTICES FOR APPLICATION BY COMMON
CARRIERS BY RAILROAD AND COMMON CARRIERS BY WATER OPERATING UPON THE
MISSISSIPPI AND WARRIOR RIVERS AND THEIR TRIBUTARIES; THE
REASONABLENESS OF EXISTING MINIMUM DIFFERENTIALS BETWEEN ALL-RAIL RATES
AND CORRESPONDING RAIL-BARGE, BARGE-RAIL AND RAIL-BARGE-RAIL RATES; THE
NECESSITY, IF ANY, FOR THE ESTABLISHMENT BY THE RAILROAD AND WATER
CARRIERS OF ADDITIONAL THROUGH ROUTES AND JOINT RATES, RULES,
REGULATIONS AND PRACTICES; AND THE NECESSITY, IF ANY, FOR FIXING
REASONABLE DIFFERENTIALS BETWEEN CORRESPONDING ALL-RAIL RATES AND JOINT
RAIL AND BARGE RATES.  CONSOLIDATED FOR DISPOSITION WITH THE GENERAL
INVESTIGATION WERE THE COMPLAINTS AND OTHER PROCEEDINGS INVOLVING THE
SAME GENERAL QUESTIONS. 

HEARINGS HELD PURSUANT TO THIS INVESTIGATION OVER A PERIOD OF EIGHT
YEARS RESULTED IN A RECORD OF SOME 16,000 PAGES AND 1,500 EXHIBITS.  AN
EXAMINER SUBMITTED A REPORT, TO WHICH EXCEPTIONS AND REPLIES WERE
FILED.  AFTER ARGUMENT BEFORE THE FULL COMMISSION, IT RENDERED ITS
WRITTEN REPORT AND FINDINGS DATED JULY 7, 1948, 270 I.C.C. 591,
SUPPLEMENTED BY REPORT DATED JUNE 13, 1949, 274 I.C.C. 229, AND
PROMULGATED THE ORDER UNDER ATTACK.  THE ORDER, MADE PURSUANT TO SEC.
307(D) OF THE TRANSPORTATION ACT OF 1940,  FN2  REQUIRED THE COMMON
CARRIERS BY RAILROAD AND WATER TO ESTABLISH THE JOINT THROUGH ROUTES
FOR THE TRANSPORTATION OF PROPERTY PRESCRIBED IN THE REPORTS, AND TO
ESTABLISH AND THEREAFTER TO MAINTAIN AND APPLY OVER THE THROUGH ROUTES
THE JOINT RATES PRESCRIBED BASED UPON CERTAIN DIFFERENTIALS FOUND IN
THE REPORTS TO BE JUSTIFIED. 

APPELLANT COMMON CARRIERS BY RAILROAD REPRESENT THE RAILROADS
REQUIRED BY THE ORDER TO ENTER INTO DIFFERENTIAL JOINT RAIL-BARGE
RATES, WHILE APPELLEE COMMON CARRIERS BY WATER ARE THE PRINCIPAL BARGE
LINES AFFECTED BY THE ORDER.  APPELLEE FEDERAL IS A CORPORATION CREATED
BY ACT OF CONGRESS, AND IS SUPERVISED BY THE DEPARTMENT OF COMMERCE. 
IT OPERATES BETWEEN ST. PAUL, CHICAGO, OMAHA, ST. LOUIS, NEW ORLEANS,
PORT BIRMINGHAM, ALABAMA, AND INTERMEDIATE PORTS VIA WATERWAYS
CONNECTING THE PORTS.  VALLEY OPERATES BETWEEN PITTSBURGH, POINTS ON
THE MONONGAHELA RIVER, CINCINNATI, ST. LOUIS AND NEW ORLEANS.  AMERICAN
OPERATES PRINCIPALLY BETWEEN PITTSBURGH AND NEW ORLEANS.  VALLEY AND
AMERICAN ARE PRIVATELY OWNED AND THEIR OPERATIONS HAVE BEEN FINANCIALLY
PROFITABLE, WHILE FEDERAL HAS INCURRED AN AVERAGE NET DEFICIT FROM
WATER-LINE OPERATIONS OF OVER $240,000 PER YEAR DURING THE PERIOD FROM
1925 TO 1947 INCLUSIVE. 

MUCH EVIDENCE WAS INTRODUCED EARLY IN THE INVESTIGATION BY BOTH THE
RAILROADS AND THE BARGE LINES AS TO THEIR COSTS OF TRANSPORTATION.  THE
COST SECTION OF THE COMMISSION MADE A STUDY OF RELATIVE COSTS FOR THE
PERIOD 1933-38 AND CONCLUDED THAT RAIL-BARGE OPERATING COSTS WERE
GREATER THAN ALL-RAIL OPERATING COSTS, DUE LARGELY TO THE COSTS OF
ADDED TERMINAL HANDLING OPERATIONS.  IN ITS REPORT THE COMMISSION
STATED THAT NO USEFUL PURPOSE WOULD BE SERVED BY MAKING A FINDING AS TO
RELATIVE ALL-RAIL AND RAIL-BARGE COSTS IN THE PERIOD COVERED BY THE
STUDY, BECAUSE SINCE THAT PERIOD THERE HAD BEEN RADICAL CHANGES IN THE
CONDITIONS AFFECTING COST OF TRANSPORTATION SERVICE BY BARGE AS WELL AS
BY RAIL.  AND AFTER REVIEWING OTHER FACTORS BEARING ON COSTS OF
OPERATION, THE COMMISSION CONCLUDED: 

"IN THE FACE OF THESE FACTS WE CANNOT FIND THAT AT THE PRESENT TIME
THERE ARE DEMONSTRABLE ECONOMIES IN BARGE-RAIL TRANSPORTATION ON THE
MISSISSIPPI RIVER AND ITS TRIBUTARIES, INCLUDING THE WARRIOR, WHICH
FROM THE STANDPOINT OF COST OF SERVICE WOULD JUSTIFY DIFFERENTIALS." 
270 I.C.C. AT 606. 

APPELLANTS' PRIMARY CONTENTION IS THAT THE COMMISSION COULD NOT
PRESCRIBE REASONABLE DIFFERENTIALS BETWEEN ALL-RAIL RATES AND JOINT
RATES IN CONNECTION WITH THE WATER CARRIERS WITHOUT PROOF OF LOWER COST
OF THE RAIL-BARGE SERVICE.  SINCE THE COMMISSION HAD NO VALID PROOF AS
TO THE RELATIVE COSTS OF THE SERVICES, APPELLANTS INSIST THAT THE
COMMISSION'S ORDER IS ARBITRARY AND CAPRICIOUS AND ITS CONCLUSIONS THAT
THE DIFFERENTIALS ARE "JUSTIFIED AS REASONABLE" AND "NECESSARY AND
DESIRABLE IN THE PUBLIC INTEREST" ARE NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE AND ESSENTIAL FINDINGS.  THIS, IT IS CONTENDED BY APPELLANTS,
IS APPARENT ON THE FACE OF THE COMMISSION'S REPORT, SO THAT IT IS NOT
NECESSARY FOR US TO EXAMINE THE EVIDENCE BEFORE THE COMMISSION. 

THE CASE WILL PERHAPS BE BETTER UNDERSTOOD BY AN ILLUSTRATION OF HOW
THE ORDER OPERATES.  ASSUME 

ILLINOIS CENTRAL LOCAL RATE NEW ORLEANS TO CAIRO, ILL..........
$1.00 

BIG FOUR LOCAL RATE, CAIRO TO CLEVELAND, OHIO..................
1.00 

ILLINOIS CENTRAL-BIG FOUR JOINT ALL-RAIL RATE, NEW ORLEANS 

TO CLEVELAND...................................................
1.60 

THE JOINT ALL-RAIL RATE OF $1.60 IS DIVIDED AS FOLLOWS: 

ILLINOIS-CENTRAL, NEW ORLEANS TO CAIRO.........................
.80 

BIG FOUR, CAIRO TO CLEVELAND...................................
.80 

ASSUME A PRESCRIBED DIFFERENTIAL OF............................
.20 

DEDUCT THE DIFFERENTIAL OF $.20 FROM THE $1.60 JOINT ALL-RAIL 

RATE AND THE JOINT BARGE-RAIL RATE IS..........................
1.40 

THE $1.40 BARGE-RAIL RATE IS DIVIDED BETWEEN THE RAIL AND BARGE 

CARRIERS AS FOLLOWS: 

BIG FOUR, CAIRO TO CLEVELAND...................................
.80 

BARGE, CAIRO TO NEW ORLEANS....................................
.60 

THE LOCAL SITUATION, NEW ORLEANS TO CAIRO, THEN, IS: 

ON ILLINOIS CENTRAL: 

LOCAL ALL-RAIL RATE............................................
$1.00 

DIVISION OF $1.60 JOINT ALL-RAIL RATE..........................
.80 

ON THE BARGE LINE: 

LOCAL PORT-TO-PORT RATE........................................
.80 

DIVISION OF $1.40 BARGE-RAIL RATE..............................
.60 

ALL-RAIL RATES ARE NOT DISTURBED AND NO QUESTION OF THEIR BEING
COMPENSATORY IS RAISED.  THE DIFFERENTIALS FIXED BY THE COMMISSION ARE
APPLIED TO THE PRESENTLY-EXISTING ALL-RAIL RATES TO COMPUTE THE
PRESCRIBED JOINT RAIL-BARGE RATE.  IF AN ALL-RAIL RATE SHOULD BE
MODIFIED, THE DIFFERENTIAL WOULD NOT AUTOMATICALLY ATTACH TO THE NEW
ALL-RAIL RATE; THE JOINT RAIL-BARGE RATE WOULD REMAIN AS NOW PRESCRIBED
(SUBJECT TO INDEPENDENT MODIFICATION, OF COURSE).  FN3  IT IS APPARENT
THAT THE BARGE LINE ABSORBS ALL THE DIFFERENTIAL.  A RAILROAD CARRIER
ALWAYS GETS THE SAME AMOUNT FOR ITS LEG, E.G., BIG FOUR, CAIRO TO
CLEVELAND (SEE ILLUSTRATION, ABOVE), OF A JOINT MOVEMENT, WHETHER THE
JOINT MOVEMENT IS ALL-RAIL OR RAIL-BARGE.  THE RAILROAD CONNECTING WITH
THE BARGE CARRIER IN A JOINT RAIL-BARGE MOVEMENT IS, AS APPELLANTS
ADMIT, NEVER HURT.  "IT IS NOT THE RAIL LINES WITH WHICH THE BARGE
LINES CONNECT WHICH OBJECT TO THESE UNJUSTIFIED DIFFERENTIALS.  IT IS
THE RAIL LINES WITH WHICH THE BARGE LINES COMPETE," SAY APPELLANTS.  IN
SHORT, THE RAILROADS COMPLAIN OF COMPETITION. 

FIRST.  APPELLANTS' ATTACK UPON THE GROUND THAT THE ORDER GIVES A
COMPETITIVE ADVANTAGE, NOT JUSTIFIED BECAUSE NOT SUPPORTED BY A FINDING
OF LESSER COST OF BARGE SERVICE, IS NOT PERSUASIVE.  ADMITTEDLY, BARGE
SERVICE IS WORTH LESS THAN RAIL SERVICE.  IT IS SLOWER, REQUIRES MORE
HANDLING AND ENTAILS MORE RISK.  A SHIPPER WILL PAY ONLY WHAT THE
SERVICE IS WORTH TO HIM.  THE SHIPPERS' EVIDENCE, THE COMMISSION FOUND,
INDICATED A FAIRLY UNANIMOUS VIEW THAT THE PRINCIPAL WORTH TO THEM OF
SHIPPING BY BARGE WAS THE SAVING IN TRANSPORTATION EXPENSE WHICH IT
OFFERED.  THE COMMISSION IS NOT BOUND TO REQUIRE A RATE AS HIGH FOR THE
INFERIOR AS FOR THE SUPERIOR SERVICE.  TO DO SO WOULD CERTAINLY DESTROY
THE PRINCIPAL WORTH OF THE INFERIOR SERVICE AND SEND ALL FREIGHT TO THE
RAILROADS; PRACTICALLY, THERE WOULD BE NO COMPETITION BETWEEN THE
DIFFERENT MODES OF TRANSPORTATION. 

NEITHER THE COMMISSION NOR THIS COURT HAS HELD THAT LESSER COST OF
SERVICE IS A FINDING WITHOUT WHICH THE COMMISSION MAY NOT FIX A CHARGE,
DIVISION OF RATE, OR DIFFERENTIAL N4.  ON THE OTHER HAND, THE
CONSIDERATIONS JUST DISCUSSED WERE RIGHTLY TAKEN INTO ACCOUNT BY THE
COMMISSION.  WE MUST NOT LOSE SIGHT OF THE FACT THAT THE COMMISSION HAS
THE INTERESTS OF SHIPPERS AND CONSUMERS TO SAFEGUARD AS WELL AS THOSE
OF THE CARRIERS.  AYRSHIRE CORP. V. UNITED STATES, 335 U.S. 573, 592. 
THE ACCOMMODATION OF THE FACTORS ENTERING INTO RATE STRUCTURES,
INCLUDING COMPETITION, IS A TASK PECULIARLY FOR THE COMMISSION.  ID.,
AT 593; UNITED STATES V. PIERCE AUTO LINES, 327 U.S. 515, 535-536. 

A CARRIER MAY, IF IT DEEMS IT ADVANTAGEOUS, VOLUNTARILY ACCEPT A RATE
YIELDING A LOW RETURN.  BALTIMORE & O.R. CO. V. UNITED STATES, 298 U.S.
349, 379.  THE COMMISSION MAY PERMIT IT TO DO SO IF SATISFIED THAT THE
RATE IS COMPENSATORY, FAIR AND REASONABLE, AND IN THE PUBLIC INTEREST. 
ID., AT 358.  APPELLANTS INTIMATE THAT THE RATES FIXED ARE NOT
COMPENSATORY WITH RESPECT TO THE BARGE LINES, AND THAT THE COMMISSION
KNEW THEY WERE NOT COMPENSATORY.  WE DISAGREE.  THE BARGE LINES IN THE
INSTANT PROCEEDINGS REPRESENTED TO THE COMMISSION THAT THE
DIFFERENTIALS WHICH THEY HAD PROPOSED, AND WHICH WERE THOROUGHLY
EXAMINED AND CONSIDERED BY THE COMMISSION IN THE LIGHT OF THE
RAILROADS' CRITICISMS, WERE COMPENSATORY.  FROM THE COMMISSION'S REPORT
IT APPEARS THAT IT SUBSTANTIALLY ADOPTED THE PROPOSALS OF THE BARGE
LINES.  IN ANY EVENT, IT IS NOT APPARENT FROM THE REPORT THAT THE
COMMISSION SUBSTANTIALLY EXCEEDED THESE RECOMMENDED DIFFERENTIALS OR
WAS NOT WARRANTED IN ADOPTING THEM.  WE CONCLUDE THAT THE DIFFERENTIALS
FIXED WERE CONSIDERED BY THE COMMISSION TO BE COMPENSATORY.  270 I.C.C.
AT 612, 613-617.  IF THE RATES OBTAINED BY THE BARGE LINES AFTER
APPLYING THE DIFFERENTIALS ARE DEEMED TO BE LESS THAN RELEVANT COSTS, A
RATE HEARING IS THE PROPER PROCEEDING TO RECTIFY PREJUDICE FLOWING
THEREFROM. 

HERE THEN, THE BARGE LINES, IN ORDER TO PROTECT THE SOLE ADVANTAGE OF
THEIR SERVICE TO THE PUBLIC, ARE WILLING TO ACCEPT LESS FOR THEIR
INFERIOR SERVICE THAN RAIL CARRIERS RECEIVE FOR SUPERIOR SERVICE. 
COMPETITION WAS ADJUDGED BY THE COMMISSION TO BE WORTH PRESERVING. 
THAT JUDGMENT WAS LEGITIMATELY RESTED ON RELEVANT FACTORS OTHER THAN
LESSER COST OF SERVICE.  THERE IS NO PROVISION IN THE STATUTE MAKING
RELATIVE COSTS OF RAIL AND WATER CARRIERS THE SOLE AND CONTROLLING
CONSIDERATION IN ESTABLISHING JOINT RATES.  INDEED, THE STATUTE MAKES
NO MENTION OF SUCH COSTS AT ALL.  WE DO NOT SAY THAT RELATIVE COSTS
WHEN PROPERLY SUPPORTED BY EVIDENCE ARE NOT A MATTER TO BE CONSIDERED,
BUT WE CANNOT SAY THAT THE ABSENCE OF THAT FACTOR IS FATAL. 

WITH RESPECT TO APPELLANTS' ARGUMENT THAT THE INFERIOR BARGE SERVICE
CANNOT BE GIVEN AT A LOWER RATE THAN THE SUPERIOR WITHOUT A FINDING
THAT THE INFERIOR COSTS LESS THAN THE SUPERIOR, WE NOTE FURTHER THAT
EVEN IF RAIL COSTS WERE NO MORE THAN BARGE COSTS IT WOULD NOT FOLLOW
THAT BARGE RATES MUST BE AS GREAT OR GREATER THAN THE RAIL RATES.  THE
RAIL RATES MAY BE TOO HIGH.  FROM THEIR ARGUMENTS, IT APPEARS TO BE THE
PURPOSE OF THE RAILROADS TO ELIMINATE THE DIFFERENTIALS, AND THUS,
COMPETITION, NOT BY REDUCING THE ALL-RAIL RATES BUT BY INCREASING THE
RAIL-BARGE RATES.  THE OBSERVATION OF JUDGE LINDLEY FOR THE DISTRICT
COURT IS PERTINENT:  "OF COURSE, IF THE RAILROADS WERE PETITIONING THE
COMMISSION FOR A REDUCTION IN ALL-RAIL RATES, PROOF OF LOWER OPERATING
COSTS MIGHT WELL WARRANT SUCH A REDUCTION, BUT IT IS DIFFICULT TO SEE
HOW THE LOWER COSTS OF THE RAILROADS, IF SATISFACTORILY PROVEN, WOULD
WARRANT AN INCREASE IN THE RATES OF A COMPETITOR."  88 F.SUPP.  982, AT
987.    SECOND.  IT HAS BEEN CONTENDED BY APPELLANTS THAT WITHOUT A
FINDING OR ANY EVIDENCE TO SUPPORT A FINDING THAT BARGE COSTS ARE LOWER
THAN RAIL COSTS, THERE IS NO BASIS FOR THE COMMISSION'S ORDER OTHER
THAN THE COMMISSION'S DETERMINATION THAT ITS ORDER IS IN ACCORDANCE
WITH GENERAL EXPRESSIONS OF CONGRESSIONAL POLICY.  IT IS APPARENT FROM
THE COMMISSION'S REPORT THAT IT GAVE CAREFUL CONSIDERATION TO NUMEROUS
EXPRESSIONS OF CONGRESSIONAL POLICY.  SEE PARTICULARLY, 270 I.C.C. AT
609-613.  THIS IT WAS IN DUTY BOUND TO DO.  BUT IT IS ALSO APPARENT, AS
WE HAVE ALREADY INDICATED, THAT THE COMMISSION GAVE CAREFUL
CONSIDERATION TO OTHER FACTORS - FACTORS SUCH AS THE TREMENDOUS LOSS OF
TRAFFIC TO THE BARGE LINES DUE TO A LOSS OF INTERCHANGE TRAFFIC; THE
INFERIORITY OF THE BARGE SERVICE; THE SHIPPERS' TESTIMONY TO THE EFFECT
THAT THEY WOULD NOT USE BARGE SERVICE UNLESS IT WERE CHEAPER TO DO SO;
THE COMPENSATORY CHARACTER OF THE DIFFERENTIALS ADOPTED; THE
WILLINGNESS OF THE BARGE LINES TO ACCEPT RATES YIELDING LOW RETURNS; AS
WELL AS THE FACT THAT ELIMINATION OF THE DIFFERENTIALS WOULD CURTAIL
COMPETITION, AND THAT THIS WOULD NEGATE SUPPORT, FINANCIAL AND
OTHERWISE, WHICH CONGRESS HAD GIVEN FEDERAL WHILE IT PIONEERED IN THE
FIELD OF BARGE TRANSPORTATION. 

THIRD.  APPELLANTS ALSO CONTEND THAT THE PRESCRIPTION OF
DIFFERENTIALS IN THIS PROCEEDING DEPRIVES THEM OF THEIR INHERENT
ADVANTAGES CONTRARY TO THE NATIONAL TRANSPORTATION POLICY.  FN5 THEY
POINT TO I.C.C. V. MECHLING, 330 U.S. 567, AS HAVING ESTABLISHED THE
PRINCIPLE THAT THE LOWER COSTS OF THE BARGE CARRIER THERE INVOLVED WAS
AN INHERENT ADVANTAGE, AND THAT THE COMMISSION HAD NO DISCRETION TO
APPROVE A RATE STRUCTURE WHICH WOULD REDUCE SUCH ADVANTAGE.  THEY ARGUE
THAT THE "FAIR AND IMPARTIAL REGULATION" CALLED FOR BY THE NATIONAL
TRANSPORTATION POLICY DEMANDS THAT THE RULE OF THE MECHLING CASE BE
APPLIED IMPARTIALLY TO PROTECT THE "INHERENT ADVANTAGE" OF THE RAIL
CARRIERS HERE. 

IN THE MECHLING CASE, THE COMMISSION HAD FIXED A RATE FOR
TRANSPORTATION OF WHEAT EAST BY RAIL FROM CHICAGO AT A RATE HIGHER IF
IT ARRIVED IN CHICAGO BY BARGE THAN IF BY RAIL OR LAKE.  THIS WAS A
PLAIN CASE OF DISCRIMINATION.  THERE WERE DIFFERENT RATES PROVIDED FOR
EQUAL SERVICE WITHOUT ANY SHOWING THAT ANY ADDITIONAL SERVICE WAS
RENDERED FOR THE ADDITIONAL CHARGE.  HERE THE QUESTION IS WHETHER THE
BARGE LINES MAY CHARGE LESS THAN THE RAILROADS FOR THE DIFFERENT
SERVICE THEY RENDER.  THERE IS NO UNLAWFUL DISCRIMINATION HERE AS THERE
WAS IN THE MECHLING CASE.  THE DIFFERENTIALS PROVIDING A LOWER RATE FOR
BARGE SERVICE DO NOT CONSTITUTE AN "UNJUST DISCRIMINATION" BY EXPRESS
PROVISO OF SEC. 305(C) OF THE ACT.  54 STAT. 935, 49 U.S.C. SEC.
905(C). 

THE JOINT RAIL-BARGE RATES PRESCRIBED NEITHER IGNORE NOR DESTROY THE
INHERENT ADVANTAGE OF RAIL TRAFFIC.  THE "INHERENT ADVANTAGE" OF RAIL
CARRIERS SHOWN HERE IS SUPERIORITY OF SERVICE.  THE JOINT RAIL-BARGE
RATES DO NOT FAIL TO REFLECT THIS "INHERENT ADVANTAGE" FOR THE SAME
REASON THAT A MAN WHO WISHES TO RIDE QUICKLY AND COMFORTABLY BUYS A
PULLMAN TICKET ON A FAST TRAIN INSTEAD OF A COACH SEAT ON A "MILK RUN"
TRAIN.  NO ONE WOULD CONTEND THAT FIXING A LOWER PRICE ON THE "MILK
RUN" TRAIN SEAT FAILS TO PRESERVE THE SUPERIOR ACCOMMODATIONS OFFERED
BY A PULLMAN SPACE.  EACH MODE OF TRANSPORTATION SATISFIES THE NEEDS
AND WANTS OF SOME CUSTOMERS.  IT IS FOR THE CUSTOMER TO DECIDE WHICH
MODE SATISFIES HIS CIRCUMSTANCES. 

FOURTH.  AS TO THE CONTENTION OF APPELLANTS THAT THE COMMISSION'S
ORDER IS NOT SUPPORTED BY ESSENTIAL FINDINGS OF FACT, SEC. 14(1) OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 14(1), DOES NOT REQUIRE THE
COMMISSION TO MAKE DETAILED FINDINGS OF FACT EXCEPT IN A CASE WHERE
DAMAGES ARE AWARDED.  MANUFACTURERS R. CO. V. UNITED STATES, 246 U.S.
457, 487, 489-490.  THE STATUTE REQUIRES THE COMMISSION ONLY TO FILE A
WRITTEN REPORT, STATING ITS CONCLUSIONS, TOGETHER WITH ITS DECISION AND
ORDER.  THIS THE COMMISSION DID, AND THE ESSENTIAL BASIS OF ITS
JUDGMENT IS SUFFICIENTLY DISCLOSED IN ITS REPORT.  OF COURSE SEC. 14(1)
DOES NOT RELIEVE THE COMMISSION OF THE DUTY TO MAKE THE "BASIC" OR
"QUASI-JURISDICTIONAL" FINDINGS ESSENTIAL TO THE STATUTORY VALIDITY OF
AN ORDER.  FLORIDA V. UNITED STATES, 282 U.S. 194, 215; UNITED STATES
V. BALTIMORE & O.R. CO., 293 U.S. 454, 464-465.  AND THE BASIC FINDINGS
ESSENTIAL TO THE VALIDITY OF A GIVEN ORDER WILL VARY WITH THE STATUTORY
AUTHORITY INVOKED AND THE CONTEXT OF THE SITUATION PRESENTED.  E.G.,
UNITED STATES V. PIERCE AUTO LINES, 327 U.S. 515; NORTH CAROLINA V.
UNITED STATES, 325 U.S. 507; YONKERS V. UNITED STATES, 320 U.S. 685;
UNITED STATES V. CAROLINA CARRIERS CORP., 315 U.S. 475.  HERE THE
COMMISSION FOUND, IN CONFORMITY TO THE STATUTE INVOKED, SUPRA NOTE 2,
THAT THE DIFFERENTIALS PRESCRIBED ARE "JUSTIFIED AS REASONABLE" AND
"NECESSARY AND DESIRABLE IN THE PUBLIC INTEREST."  AND "THE REPORT,
READ AS A WHOLE, SUFFICIENTLY EXPRESSES THE CONCLUSION OF THE
COMMISSION, BASED UPON SUPPORTING DATA  ...  "  UNITED STATES V.
LOUISIANA, 290 U.S. 70, 80.  ENOUGH HAS BEEN "PUT OF RECORD TO ENABLE
US TO PERFORM THE LIMITED TASK WHICH IS OURS."  EASTERN-CENTRAL ASSN.
V. UNITED STATES, 321 U.S. 194, 212. 

APPELLANTS IN NOS. 46, 47, AND 48 WERE PERMITTED TO INTERVENE IN THE
DISTRICT COURT AS PARTIES PLAINTIFF.  THEY REPRESENT VARIOUS COMMERCIAL
INTERESTS ALLEGEDLY AFFECTED ADVERSELY BY THE ORDER OF THE COMMISSION. 
THE ONLY POINTS URGED BY THESE APPELLANTS NOT ANSWERED IN NO. 45 ARE
THAT THE ORDER GIVES A PREFERENCE TO THE PORT OF NEW ORLEANS OVER
CERTAIN PORTS OF GEORGIA AND TEXAS, IN VIOLATION OF THE INTERSTATE
COMMERCE ACT AND OF ART. I, SEC. 9, CL. 6 OF THE FEDERAL CONSTITUTION. 

WITH RESPECT TO THE CONSTITUTIONAL ARGUMENT, THIS COURT IN LOUISIANA
PUBLIC SERVICE COMMISSION V. TEXAS & N.O.R. CO., 284 U.S. 125, 131,
STATED: 

"THE CLAUSE OF THE CONSTITUTION INVOKED IS:  'NO PREFERENCE SHALL BE
GIVEN BY ANY REGULATION OF COMMERCE OR REVENUE TO THE PORTS OF ONE
STATE OVER THOSE OF ANOTHER; NOR SHALL VESSELS BOUND TO, OR FROM, ONE
STATE, BE OBLIGED TO ENTER, CLEAR, OR PAY DUTIES IN ANOTHER.'  THE
SPECIFIED LIMITATIONS ON THE POWER OF CONGRESS WERE SET TO PREVENT
PREFERENCE AS BETWEEN STATES IN RESPECT OF THEIR PORTS OR THE ENTRY AND
CLEARANCE OF VESSELS.  IT DOES NOT FORBID SUCH DISCRIMINATIONS AS
BETWEEN PORTS.  CONGRESS, ACTING UNDER THE COMMERCE CLAUSE, CAUSES MANY
THINGS TO BE DONE THAT GREATLY BENEFIT PARTICULAR PORTS AND WHICH
INCIDENTALLY RESULT TO THE DISADVANTAGE OF OTHER PORTS IN THE SAME OR
NEIGHBORING STATES." 

AND WE ARE CLEAR THAT WHATEVER PREFERENCE THERE IS TO NEW ORLEANS IS
THE RESULT OF GEOGRAPHY AND NOT OF ANY ACTION OF THE COMMISSION.  "THE
LAW DOES NOT ATTEMPT TO EQUALIZE FORTUNE, OPPORTUNITIES OR ABILITIES." 
I.C.C. V. DIFFENBAUGH, 222 U.S. 42, 46.  AFFIRMED. 

FN1  REPEALED BY TRANSPORTATION ACT OF 1940, 54 STAT. 898, 950. 

FN2  "(D)  THE COMMISSION MAY, AND IT SHALL WHENEVER DEEMED BY IT TO
BE NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST, AFTER FULL HEARING
UPON COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT A COMPLAINT,
ESTABLISH THROUGH ROUTES, JOINT CLASSIFICATIONS, AND JOINT RATES,
FARES, OR CHARGES, APPLICABLE TO THE TRANSPORTATION OF PASSENGERS OR
PROPERTY BY COMMON CARRIERS BY WATER, OR BY SUCH CARRIERS AND CARRIERS
BY RAILROAD, OR THE MAXIMA OR MINIMA, OR MAXIMA AND MINIMA, TO BE
CHARGED, AND THE DIVISIONS OF SUCH RATES, FARES, OR CHARGES AS
HEREINAFTER PROVIDED, AND THE TERMS AND CONDITIONS UNDER WHICH SUCH
THROUGH ROUTES SHALL BE OPERATED.  IN THE CASE OF A THROUGH ROUTE,
WHERE ONE OF THE CARRIERS IS A COMMON CARRIER BY WATER, THE COMMISSION
SHALL PRESCRIBE SUCH REASONABLE DIFFERENTIALS AS IT MAY FIND TO BE
JUSTIFIED BETWEEN ALL-RAIL RATES AND THE JOINT RATES IN CONNECTION WITH
SUCH COMMON CARRIER BY WATER.  ...  "  54 STAT. 898, 937, 49 U.S.C.
SEC. 907(D). 

FN3  COUNSEL FOR THE UNITED STATES AND THE COMMISSION HAVE SO
INTERPRETED THE ORDER.  FINDING 1 OF THE COMMISSION READS:  "WE FIND
THAT THE AMOUNTS SHOWN IN APPENDIX A AND APPENDIX B ARE JUSTIFIED AS
REASONABLE DIFFERENTIALS TO BE DEDUCTED FROM THE PRESENT FIRST-CLASS
ALL-RAIL RATES ...  "  270 I.C.C. AT 619.  THE COMMISSION'S ORDER,
WHICH INCORPORATES THE REPORTS AND FINDINGS BY REFERENCE, REQUIRES THE
CARRIERS TO ESTABLISH AND THEREAFTER TO MAINTAIN AND APPLY "THE JOINT
RATES PRESCRIBED IN THE SAID REPORTS BASED UPON THE DIFFERENTIALS FOUND
IN THE SAID REPORTS TO BE JUSTIFIED." 

THIS APPEARS TO REQUIRE MAINTENANCE OF THE JOINT RAIL-BARGE RATES
PRESCRIBED, NOT A FIXED DIFFERENCE BETWEEN ALL-RAIL RATES, NO MATTER
WHAT THEY MAY BE, AND JOINT RAIL-BARGE RATES, AND WE THEREFORE ACCEPT
THE INTERPRETATION OF COUNSEL FOR APPELLEES. 

FN4  BOTH THE COMMISSION AND THIS COURT HAVE CONSISTENTLY REJECTED
ANY THOUGHT THAT COSTS SHOULD BE THE CONTROLLING FACTOR IN RATE
MAKING.  E.G., NEW YORK V. UNITED STATES, 331 U.S. 284, 331; BALTIMORE
& O.R. CO. V. UNITED STATES, 298 U.S. 349, 359; LOUISIANA PUBLIC
SERVICE COMMISSION V. TEXAS & N.O.R. CO., 284 U.S. 125, 132; CHARGES
FOR PROTECTIVE SERVICE TO PERISHABLE FREIGHT, 241 I.C.C. 503, 510-511;
PROPOSED LAKE ERIE-OHIO RIVER CANAL, 235 I.C.C. 753, 761; LIGHTERAGE
CASES, 203 I.C.C. 481, 510; WEST COAST LUMBERMEN'S ASSN. V. AKRON, C. &
Y.R. CO., 183 I.C.C. 191, 198-199; BALTIMORE CHAMBER OF COMMERCE V. ANN
ARBOR R. CO., 159 I.C.C. 691, 696-697. 

FN5  "IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY
OF THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL
MODES OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY."  54 STAT. 899, 49 U.S.C. (1946 ED.), P. 5443. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE THAT THE DIFFERENTIALS ESTABLISHED UNDER SEC. 307(D) OF THE
ACT NEED NOT BE MEASURED BY THE DIFFERENCE IN COST BETWEEN RAIL AND
BARGE TRANSPORTATION.  BARGE COSTS AS COMPARED WITH RAIL COSTS ARE,
HOWEVER, A RELEVANT FACTOR FOR CONSIDERATION BY THE COMMISSION UNDER
SEC. 307(F)*  WHEN IT DETERMINES WHAT DIFFERENTIALS ARE REASONABLE. 
WHEN THE COMMISSION PROCEEDS TO FIX DIFFERENTIALS WITHOUT KNOWING WHAT
THE RELATIVE BARGE AND RAIL COSTS ARE, IT IS TO MY MIND EXPERIMENTING
AS A LEGISLATIVE BODY MIGHT DO, NOT PERFORMING THE INFINITELY MORE
EXACTING TASK OF THE RATE EXPERT. 

*"IN THE EXERCISE OF ITS POWER TO PRESCRIBE JUST AND REASONABLE
RATES, FARES, AND CHARGES OF COMMON CARRIERS BY WATER, AND
CLASSIFICATIONS, REGULATIONS, AND PRACTICES RELATING THERETO, THE
COMMISSION SHALL GIVE DUE CONSIDERATION, AMONG OTHER FACTORS, TO THE
EFFECT OF RATES UPON THE MOVEMENT OF TRAFFIC BY THE CARRIER OR CARRIERS
FOR WHICH THE RATES ARE PRESCRIBED; TO THE NEED, IN THE PUBLIC
INTEREST, OF ADEQUATE AND EFFICIENT WATER TRANSPORTATION SERVICE AT THE
LOWEST COST CONSISTENT WITH THE FURNISHING OF SUCH SERVICE; AND TO THE
NEED OF REVENUES SUFFICIENT TO ENABLE WATER CARRIERS, UNDER HONEST,
ECONOMICAL, AND EFFICIENT MANAGEMENT, TO PROVIDE SUCH SERVICE."  54
STAT. 938. 

THE COMMISSION PRACTICALLY CONCEDES THAT IN THIS CASE IT ADOPTS A
DIFFERENT STANDARD THAN THE STATUTORY ONE.  IT IS ADMITTED THAT ON THIS
RECORD THERE CAN BE NO ADEQUATE FINDINGS ON COSTS.  THE EVIDENCE FOR AN
EARLIER PERIOD (1933-1938) SHOWS THAT THE COST FOR JOINT RAIL-BARGE
ROUTING IS GREATER THAN FOR DIRECT ALL-RAIL ROUTING.  THE COMMISSION
REFUSED TO PURSUE THE COST STUDY INTO LATER YEARS.  THE REASON IS
APPARENT.  ONE OF THE APPELLEES IS INLAND WATERWAYS CORP. WHICH
OPERATES FEDERAL BARGE LINES.  INLAND IS A FEDERAL CORPORATION (43
STAT. 360, 49 U.S.C. SEC. 151) AND IT AND FEDERAL ARE SUBSIDIZED BY
CONGRESS.  IT IS THAT PROGRAM THAT THE COMMISSION IS SEEKING TO PROMOTE
HERE.  THAT MAY BE IMPORTANT AND DESIRABLE.  BUT THE STANDARDS WHICH
GUIDE THE COMMISSION ARE STILL FOUND IN SEC. 307(F).  COSTS HAVE SOME
RELEVANCE TO THE PROBLEM OF DIFFERENTIALS AS SEC. 307(F) MAKES CLEAR. 
CONGRESS IS ENTITLED TO DISREGARD COSTS COMPLETELY.  BUT I DO NOT THINK
THE COMMISSION IS.
..END :














BLAU V. UNITED STATES, 340 U.S. 159 


NO. 22.  ARGUED NOVEMBER 7, 1950.  - DECIDED DECEMBER 11, 1950.  - 180
F.2D 103, REVERSED. 


1.  IT IS A VIOLATION OF THE FIFTH AMENDMENT TO COMPEL A WITNESS WHO
OBJECTS ON THE GROUND OF SELF-INCRIMINATION TO TESTIFY BEFORE A GRAND
JURY IN RESPONSE TO QUESTIONS CONCERNING HIS EMPLOYMENT BY THE
COMMUNIST PARTY OR INTIMATE KNOWLEDGE OF ITS OPERATIONS WHEN THERE IS
IN EFFECT A STATUTE SUCH AS THE SMITH ACT, 18 U.S.C. SEC. 2385, MAKING
IT A CRIME TO ADVOCATE, OR TO AFFILIATE WITH A GROUP WHICH ADVOCATES,
OVERTHROW OF THE GOVERNMENT BY FORCE.  PP. 159-161. 

2.  IT IS IMMATERIAL WHETHER ANSWERS TO THE QUESTIONS ASKED WOULD
HAVE BEEN SUFFICIENT STANDING ALONE TO SUPPORT A CONVICTION WHEN THEY
WOULD HAVE FURNISHED A LINK IN THE CHAIN OF EVIDENCE NEEDED IN A
PROSECUTION OF THE WITNESS FOR VIOLATION OF (OR CONSPIRACY TO VIOLATE)
THE SMITH ACT.  P. 161. 

BLAU V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PETITIONER WAS ADJUDGED GUILTY OF CONTEMPT OF COURT FOR REFUSING, ON
THE GROUND OF POSSIBLE SELF-INCRIMINATION, TO ANSWER CERTAIN QUESTIONS
BEFORE A FEDERAL GRAND JURY AND LATER BEFORE A FEDERAL DISTRICT COURT. 
THE COURT OF APPEALS AFFIRMED.  180 F.2D 103.  THIS COURT GRANTED
CERTIORARI.  339 U.S. 956.  REVERSED, P. 161. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN RESPONSE TO A SUBPOENA, PETITIONER APPEARED AS A WITNESS BEFORE
THE UNITED STATES DISTRICT COURT GRAND JURY AT DENVER, COLORADO.  THERE
SHE WAS ASKED SEVERAL QUESTIONS CONCERNING THE COMMUNIST PARTY OF
COLORADO AND HER EMPLOYMENT BY IT.  FN1  PETITIONER REFUSED TO ANSWER
THESE QUESTIONS ON THE GROUND THAT THE ANSWERS MIGHT TEND TO
INCRIMINATE HER.  SHE WAS THEN TAKEN BEFORE THE DISTRICT JUDGE WHERE
THE QUESTIONS WERE AGAIN PROPOUNDED AND WHERE SHE AGAIN CLAIMED HER
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION AND REFUSED TO
TESTIFY.  THE DISTRICT JUDGE FOUND PETITIONER GUILTY OF CONTEMPT OF
COURT AND SENTENCED HER TO IMPRISONMENT FOR ONE YEAR.  THE COURT OF
APPEALS FOR THE TENTH CIRCUIT AFFIRMED.  180 F.2D 103.  WE GRANTED
CERTIORARI BECAUSE THE DECISION APPEARED TO DENY RIGHTS GUARANTEED BY
THE FIFTH AMENDMENT N2.  THE HOLDING BELOW ALSO WAS IN CONFLICT WITH
RECENT DECISIONS OF THE FIFTH AND NINTH CIRCUITS.  ESTES V. POTTER, 183
F.2D 865; ALEXANDER V. UNITED STATES, 181 F.2D 480. 

AT THE TIME PETITIONER WAS CALLED BEFORE THE GRAND JURY, THE SMITH
ACT WAS ON THE STATUTE BOOKS MAKING IT A CRIME AMONG OTHER THINGS TO
ADVOCATE KNOWINGLY THE DESIRABILITY OF OVERTHROW OF THE GOVERNMENT BY
FORCE OR VIOLENCE; TO ORGANIZE OR HELP TO ORGANIZE ANY SOCIETY OR GROUP
WHICH TEACHES, ADVOCATES OR ENCOURAGES SUCH OVERTHROW OF THE
GOVERNMENT; TO BE OR BECOME A MEMBER OF SUCH A GROUP WITH KNOWLEDGE OF
ITS PURPOSES.  FN3  THESE PROVISIONS MADE FUTURE PROSECUTION OF
PETITIONER FAR MORE THAN "A MERE IMAGINARY POSSIBILITY  ...  "  MASON
V. UNITED STATES, 244 U.S. 362, 366; SHE REASONABLY COULD FEAR THAT
CRIMINAL CHARGES MIGHT BE BROUGHT AGAINST HER IF SHE ADMITTED
EMPLOYMENT BY THE COMMUNIST PARTY OR INTIMATE KNOWLEDGE OF ITS
WORKINGS.  WHETHER SUCH ADMISSIONS BY THEMSELVES WOULD SUPPORT A
CONVICTION UNDER A CRIMINAL STATUTE IS IMMATERIAL.  ANSWERS TO THE
QUESTIONS ASKED BY THE GRAND JURY WOULD HAVE FURNISHED A LINK IN THE
CHAIN OF EVIDENCE NEEDED IN A PROSECUTION OF PETITIONER FOR VIOLATION
OF (OR CONSPIRACY TO VIOLATE) THE SMITH ACT.  PRIOR DECISIONS OF THIS
COURT HAVE CLEARLY ESTABLISHED THAT UNDER SUCH CIRCUMSTANCES, THE
CONSTITUTION GIVES A WITNESS THE PRIVILEGE OF REMAINING SILENT.  THE
ATTEMPT BY THE COURTS BELOW TO COMPEL PETITIONER TO TESTIFY RUNS
COUNTER TO THE FIFTH AMENDMENT AS IT HAS BEEN INTERPRETED FROM THE
BEGINNING.  UNITED STATES V. BURR, 25 FED. CAS., CASE NO. 14,692E,
DECIDED BY CHIEF JUSTICE MARSHALL IN THE CIRCUIT COURT OF THE UNITED
STATES FOR THE DISTRICT OF VIRGINIA; COUNSELMAN V. HITCHCOCK, 142 U.S.
547; BALLMANN V. FAGIN, 200 U.S. 186; ARNDSTEIN V. MCCARTHY, 254 U.S.
71; BOYD V. UNITED STATES, 116 U.S. 616; CF. UNITED STATES V. WHITE,
322 U.S. 694, 698, 699.  REVERSED. 

FN1  THE GRAND JURY'S QUESTIONS WHICH PETITIONER REFUSED TO ANSWER
WERE AS FOLLOWS:  "MRS.  BLAU, DO YOU KNOW THE NAMES OF THE STATE
OFFICERS OF THE COMMUNIST PARTY OF COLORADO?"  "DO YOU KNOW WHAT THE
ORGANIZATION OF THE COMMUNIST PARTY OF COLORADO IS, THE TABLE OF
ORGANIZATION OF THE COMMUNIST PARTY OF COLORADO?"  "WERE YOU EVER
EMPLOYED BY THE COMMUNIST PARTY OF COLORADO?"  "MRS.  BLAU, DID YOU
EVER HAVE IN YOUR POSSESSION OR CUSTODY ANY OF THE BOOKS AND RECORDS OF
THE COMMUNIST PARTY OF COLORADO?"  "DID YOU TURN THE BOOKS AND RECORDS
OF THE COMMUNIST PARTY OF COLORADO OVER TO ANY PARTICULAR PERSON?"  "DO
YOU KNOW THE NAMES OF ANY PERSONS WHO MIGHT NOW HAVE THE BOOKS AND
RECORDS OF THE COMMUNIST PARTY OF COLORADO?"  "COULD YOU DESCRIBE TO
THE GRAND JURY ANY BOOKS AND RECORDS OF THE COMMUNIST PARTY OF
COLORADO?" 

FN2  THE FIFTH AMENDMENT PROVIDES:  "NO PERSON  ...  SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF  ...  "
U.S. CONST., AMEND. V. 

FN3  62 STAT. 808, 18 U.S.C. SEC. 2385. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















MCGRATH V. KRISTENSEN, 340 U.S. 162 


NO. 34.  ARGUED OCTOBER 19-20, 1950.  - DECIDED DECEMBER 11, 1950.  - 86
U.S. APP. D.C. 48, 179 F.2D 796, AFFIRMED. 


1.  A JUSTICIABLE QUESTION UNDER ARTICLE III OF THE CONSTITUTION IS
PRESENTED BY THE SUIT OF AN ALIEN FOR A JUDGMENT DECLARING THAT, IN
PASSING ON HIS APPLICATION FOR SUSPENSION OF DEPORTATION UNDER SEC.
19(C) OF THE IMMIGRATION ACT, THE ATTORNEY GENERAL AND OTHER
IMMIGRATION AND NATURALIZATION OFFICIALS MUST ACT ON THE ASSUMPTION
THAT HE IS ELIGIBLE FOR NATURALIZATION.  PP. 167-169. 

(A)  A DIFFERENT RESULT IS NOT REQUIRED BY THE PROVISION OF SEC.
19(C) THAT SUSPENSIONS OF DEPORTATION FOR MORE THAN SIX MONTHS MUST BE
SUBMITTED TO CONGRESS FOR APPROVAL, SINCE THE ATTORNEY GENERAL IS GIVEN
FINAL POWER TO SUSPEND DEPORTATION FOR AT LEAST SIX MONTHS.  CHICAGO &
SOUTHERN AIR LINES V. WATERMAN S.S. CORP., 333 U.S. 103,
DISTINGUISHED.  PP. 167-168. 

2.  AN ADMINISTRATIVE DECISION AGAINST A REQUESTED SUSPENSION OF
DEPORTATION UNDER SEC. 19(C) OF THE IMMIGRATION ACT (BASED SOLELY UPON
A FINDING OF INELIGIBILITY FOR NATURALIZATION) CAN BE CHALLENGED IN A
SUIT FOR A DECLARATORY JUDGMENT BY AN ALIEN NOT IN CUSTODY.  PP. 168
171. 

(A)  THE PROVISION OF SEC. 19(A) OF THE IMMIGRATION ACT MAKING THE
ATTORNEY GENERAL'S DECISION ON DEPORTATION "FINAL" DOES NOT PRECLUDE
JUDICIAL REVIEW BY DECLARATORY JUDGMENT OF THE QUESTION OF ELIGIBILITY
FOR CITIZENSHIP.  PP. 168-169. 

(B)  WHERE AN OFFICIAL'S AUTHORITY TO ACT DEPENDS UPON THE STATUS OF
THE PERSON AFFECTED, THAT STATUS, WHEN IN DISPUTE, MAY BE DETERMINED BY
A DECLARATORY JUDGMENT PROCEEDING AFTER THE EXHAUSTION OF
ADMINISTRATIVE REMEDIES.  PERKINS V. ELG, 307 U.S. 325.  PP.  169-171. 

3.  RESPONDENT, A DANISH CITIZEN, ENTERED THE UNITED STATES ON AUGUST
17, 1939, AS A TEMPORARY VISITOR FOR 60 DAYS.  THE OUTBREAK OF WORLD
WAR II PREVENTED HIS RETURN TO DENMARK.  SUCCESSIVE EXTENSIONS OF STAY
WERE GRANTED AND DEPORTATION PROCEEDINGS BEGUN IN MAY 1940 WERE STAYED
FOR THE DURATION OF WORLD WAR II AND REOPENED IN 1946.  ON MARCH 30,
1942, HE APPLIED FOR AND OBTAINED RELIEF FROM LIABILITY FOR MILITARY
SERVICE UNDER SEC. 3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF
1940.  HELD:  RESPONDENT WAS NOT "RESIDING IN THE UNITED STATES" WITHIN
THE MEANING OF SEC. 3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT AND
THE REGULATIONS ISSUED THEREUNDER WHEN HE APPLIED FOR RELIEF FROM
"LIABILITY" FOR MILITARY SERVICE, AND SUCH APPLICATION DID NOT MAKE HIM
INELIGIBLE FOR NATURALIZATION OR FOR A SUSPENSION OF DEPORTATION UNDER
SEC. 19(C) OF THE IMMIGRATION ACT.  PP. 171-176. 

MCGRATH, ATTORNEY GENERAL, ET AL. V. KRISTENSEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE DISTRICT COURT DISMISSED RESPONDENT'S SUIT FOR A DECLARATORY
JUDGMENT AND AN INJUNCTION.  THE COURT OF APPEALS REVERSED.  86 U.S.
APP. D.C. 48, 179 F.2D 796.  THIS COURT GRANTED CERTIORARI.  339 U.S.
956.  AFFIRMED, P. 176. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

REVIEW WAS GRANTED BY THIS COURT TO DETERMINE WHETHER THE ATTORNEY
GENERAL WAS JUSTIFIED IN REFUSING TO SUSPEND DEPORTATION OF AN ALIEN
UNDER SEC. 19(C), AS AMENDED, 62 STAT. 1206, OF THE IMMIGRATION ACT OF
1917,  FN1  39 STAT. 874, 889, 8 U.S.C. SECS. 101, 155(C), ON THE SOLE
GROUND THAT THE ALIEN WAS INELIGIBLE FOR NATURALIZATION.  THE ALIEN'S
ELIGIBILITY FOR NATURALIZATION, THE SUBSTANTIVE QUESTION IN THIS CASE,
DEPENDS UPON WHETHER THE ALIEN WAS "RESIDING" IN THE UNITED STATES AND
THEREFORE LIABLE FOR MILITARY SERVICE UNDER THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940, WHEN HE MADE APPLICATION TO BE RELIEVED FROM THE
LIABILITY.  SECTION 3(A) OF THAT ACT AS AMENDED, THE APPLICABLE
THEREAFTER BE DEBARRED FROM BECOMING A CITIZEN OF THE UNITED STATES." 
FN2 

THE GRANT OF CERTIORARI ALSO COVERED A PROCEDURAL QUESTION:  WHETHER
THE ATTORNEY GENERAL'S REFUSAL ON THE GROUND STATED TO GRANT SUSPENSION
OF DEPORTATION WAS SUBJECT TO JUDICIAL REVIEW OTHERWISE THAN BY HABEAS
CORPUS. 

THE ALLEGATIONS OF THE ALIEN'S COMPLAINT HAVE NOT BEEN CONTROVERTED. 
KRISTENSEN, A DANISH CITIZEN, ENTERED THE UNITED STATES ON AUGUST 17,
1939, AS A TEMPORARY VISITOR FOR SIXTY DAYS, TO ATTEND THE NEW YORK
WORLD'S FAIR AND VISIT RELATIVES.  THE OUTBREAK OF WORLD WAR II
PREVENTED HIS RETURN TO DENMARK.  SUCCESSIVE EXTENSIONS OF STAY WERE
APPLIED FOR AND GRANTED, BUT EVENTUALLY ECONOMIC NECESSITY COMPELLED
KRISTENSEN TO BECOME EMPLOYED AND THEREBY VIOLATE HIS VISITOR'S
STATUS.  THE PROCESS OF DEPORTATION ON THE GROUND OF VIOLATION OF HIS
VISITOR'S STATUS WAS BEGUN IN MAY 1940, STAYED FOR THE DURATION OF
WORLD WAR II, AND REOPENED IN 1946.  A WARRANT OF DEPORTATION WAS
ISSUED IN 1941 BUT WAS WITHDRAWN ON JUNE 10, 1946, TO PERMIT THE ALIEN
TO SUBMIT AN APPLICATION FOR SUSPENSION OF DEPORTATION UNDER SEC. 19(C)
OF THE IMMIGRATION ACT, SUPRA, WHICH ALLOWS SUCH SUSPENSION WHEN
DEPORTATION WOULD RESULT IN SERIOUS ECONOMIC DETRIMENT TO THE UNITED
STATES CITIZEN WIFE OF AN ALIEN.  THIS RELIEF WAS REFUSED ON THE SOLE
GROUND OF KRISTENSEN'S ASSERTED INELIGIBILITY FOR CITIZENSHIP RESULTING
FROM HIS HAVING FILED WITH HIS SELECTIVE SERVICE BOARD ON MARCH 30,
1942, AFTER REGISTRATION, AN APPLICATION FOR RELIEF FROM SERVICE UNDER
SEC. 3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT, SUPRA.
ELIGIBILITY IS A STATUTORY PREREQUISITE TO THE ATTORNEY GENERAL'S
EXERCISE OF HIS DISCRETION TO SUSPEND DEPORTATION IN THIS CASE.  FN3 

RESPONDENT, NOT THEN NOR THEREAFTER IN CUSTODY, SOUGHT A DECLARATORY
JUDGMENT THAT THE ATTORNEY GENERAL AND OTHER IMMIGRATION AND
NATURALIZATION OFFICIALS MUST, IN PASSING UPON HIS APPLICATION FOR
SUSPENSION OF DEPORTATION, DECIDE ON THE BASIS THAT HE IS ELIGIBLE FOR
NATURALIZATION IN THE UNITED STATES.  FN4  HE ALSO SOUGHT TO ENJOIN THE
ATTORNEY GENERAL AND OTHER OFFICIALS FROM EXERCISING THEIR AUTHORITY
UNDER SEC. 19(C) OF THE IMMIGRATION ACT ON THE ASSUMPTION OF
RESPONDENT'S INELIGIBILITY. 

THE DISTRICT COURT DISMISSED THE COMPLAINT WITHOUT OPINION,
APPARENTLY FOR FAILURE TO STATE A GROUND FOR RELIEF.  THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA REVERSED ON THE GROUND
THAT, UNDER THE FACTS ALLEGED, KRISTENSEN COULD NOT HAVE BEEN SUBJECT
TO THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AT THE TIME HE MADE
HIS CLAIM FOR EXEMPTION, AND THEREFORE THE CLAIM WAS WITHOUT EFFECT AND
DID NOT RENDER HIM INELIGIBLE FOR NATURALIZATION.  86 U.S. APP. D.C.
48, 179 F.2D 796.  THE COURT OF APPEALS RULED THAT THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, AS AMENDED, APPLIED ONLY TO ALIENS
"RESIDING IN THE UNITED STATES" AND "ABSENT ANY SHOWING OF ACTS OR
DECLARATIONS INDICATING AN INTENTION TO REMAIN AT THE TIME THE FORM WAS
FILED, THE IMMIGRATION AUTHORITIES ERRONEOUSLY CONSTRUED 'RESIDING IN
THE UNITED STATES' WHEN THEY HELD IT APPLICABLE TO AN ALIEN IN THIS
COUNTRY UNDER A TEMPORARY VISITOR'S VISA WHOSE DEPORTATION HAD BEEN
ORDERED AND THEN STAYED BECAUSE OF WAR."  FN5 

WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTION IN
THE ADMINISTRATION OF THE IMMIGRATION AND NATURALIZATION LAWS.  THE
PRINCIPLE OF THE DECISION BELOW IS IN CONFLICT WITH THAT APPLIED IN
BENZIAN V. GODWIN, 168 F.2D 952.  AN IMPORTANT PROCEDURAL QUESTION ALSO
EXISTS IN VIEW OF THE GOVERNMENT'S INSISTENCE THAT HABEAS CORPUS IS THE
ONLY AVAILABLE JUDICIAL REMEDY FOR ALIENS IN DEPORTATION PROCEEDINGS. 
BEFORE WE CONSIDER THESE QUESTIONS, HOWEVER, WE TURN TO A
JURISDICTIONAL PROBLEM. 

FEDERAL JURISDICTION.  - THE GOVERNMENT PROPERLY PRESENTS FOR OUR
CONSIDERATION AN ISSUE OF FEDERAL JURISDICTION NOT HERETOFORE RAISED. 
THE QUAERE IS WHETHER THIS PROCEEDING INVOLVES A JUSTICIABLE QUESTION
UNDER ARTICLE III OF THE CONSTITUTION.  FN6  IT IS SAID THE ATTORNEY
GENERAL'S SUSPENSION OF DEPORTATION IS MERELY A RECOMMENDATION TO
CONGRESS, AND THAT FEDERAL COURTS CANNOT INTERVENE BECAUSE AT THIS
POINT A COURT ORDER DOES NOT FINALLY CONTROL THE DEPORTATION OF THE
ALIEN.  FN7  THIS ARGUMENT IS FOUNDED ON SEC. 19(C) OF THE IMMIGRATION
ACT WHICH PROVIDES THAT, IF DEPORTATION IS SUSPENDED LONGER THAN SIX
MONTHS, A DETAILED REPORT MUST BE MADE TO CONGRESS, AND, IF CONGRESS
FAILS TO APPROVE THE SUSPENSION BEFORE THE TERMINATION OF THE SESSION
NEXT FOLLOWING THE SESSION IN WHICH THE CASE IS REPORTED, THE ATTORNEY
GENERAL MUST THEREUPON PROCEED WITH THE DEPORTATION.  FN8 

WHILE SUCH A JURISDICTIONAL POINT MAY BE RAISED AT ANY TIME,  FN9  WE
DO NOT THINK THERE IS BASIS FOR THE OBJECTION HERE.  THE STATUTE GIVES
THE ATTORNEY GENERAL THE POWER TO SUSPEND DEPORTATION FOR A MINIMUM OF
SIX MONTHS AND UNTIL CONGRESS ACTS OR THE TIME FOR ACTION ELAPSES.  THE
ATTORNEY GENERAL'S POWER IS FINAL FOR SUCH DEFERMENT OF DEPORTATION. 
THAT OTHER FORCES MAY COME INTO PLAY LATER WITH AUTHORITY TO TAKE OTHER
STEPS DOES NOT DETRACT FROM THAT FINALITY.  THE UNITED STATES RELIES
PARTICULARLY ON CHICAGO & SOUTHERN AIR LINES V. WATERMAN S.S. CORP.,
333 U.S. 103.  THE CONGRESSIONAL POWER HERE IS QUITE DISTINCT FROM THE
PRESIDENTIAL POWER CONCERNING OVERSEAS LICENSING IN THE CHICAGO &
SOUTHERN CASE.  THE LICENSE IN QUESTION THERE WAS INEFFECTIVE UNTIL THE
PRESIDENT ACTED.  THE DELAY HERE IS EFFECTIVE DESPITE SUBSEQUENT
CONGRESSIONAL ACTION.  THIS LITIGATION, WHATEVER ITS ULTIMATE EFFECT,
IS AIMED ONLY AT THE DELAY.  THE JUDGMENT SOUGHT IN THIS PROCEEDING
WOULD BE BINDING AND CONCLUSIVE ON THE PARTIES IF ENTERED AND THE
QUESTION IS JUSTICIABLE. 

DECLARATORY JUDGMENT.  - THE UNITED STATES DOES NOT CHALLENGE
FINALITY FOR PURPOSE OF REVIEW.  FN10  HOWEVER, THE GOVERNMENT DOES
CONTEND THAT THE IMMIGRATION ACT PROVISION, SEC. 19(A), MAKING THE
ATTORNEY GENERAL'S DECISION ON DEPORTATION "FINAL" PRECLUDES JUDICIAL
REVIEW EXCEPT BY HABEAS CORPUS OF HIS REFUSAL TO GRANT SUSPENSION OF
DEPORTATION.  THE PROCEDURAL QUESTION AS THUS NARROWED IS WHETHER AN
ADMINISTRATIVE DECISION AGAINST A REQUESTED SUSPENSION OF DEPORTATION
UNDER SEC. 19(C) OF THE IMMIGRATION ACT CAN BE CHALLENGED BY AN ALIEN
FREE FROM CUSTODY THROUGH A DECLARATORY JUDGMENT OR WHETHER, TO SECURE
REDRESS, HE MUST AWAIT THE TRADITIONAL REMEDY OF HABEAS CORPUS AFTER
HIS ARREST FOR DEPORTATION. 

THE IMMIGRATION ACT OF 1917, 39 STAT. 889, AS AMENDED, 8 U.S.C. SEC.
155(A), AUTHORIZED THE DEPORTATION OF ANY ALIEN FOUND IN THE UNITED
STATES IN VIOLATION OF THE IMMIGRATION LAWS, AND ALWAYS PROVIDED THAT
ADMINISTRATIVE DECISION AS TO DEPORTATION "SHALL BE FINAL."  THE END OF
THAT ADMINISTRATIVE PROCEEDING CREATES A SITUATION WHICH IS SUBJECT TO
TEST ON CONSTITUTIONAL GROUNDS THROUGH HABEAS CORPUS BY ONE IN
CUSTODY.  FN11  WE DO NOT FIND IT NECESSARY TO CONSIDER THE
APPLICABILITY OF SEC. 10 OF THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT.
243, TO THIS PROCEEDING.  WHERE AN OFFICIAL'S AUTHORITY TO ACT DEPENDS
UPON THE STATUS OF THE PERSON AFFECTED, IN THIS CASE ELIGIBILITY FOR
CITIZENSHIP, THAT STATUS, WHEN IN DISPUTE, MAY BE DETERMINED BY A
DECLARATORY JUDGMENT PROCEEDING AFTER THE EXHAUSTION OF ADMINISTRATIVE
REMEDIES.  UNDER SEC. 19(C) OF THE IMMIGRATION ACT THE EXERCISE OF THE
ATTORNEY GENERAL'S APPROPRIATE DISCRETION IN SUSPENDING DEPORTATION IS
PROHIBITED IN THE CASE OF ALIENS INELIGIBLE FOR CITIZENSHIP.  THE ALIEN
IS DETERMINED TO HAVE A PROSCRIBED STATUS BY THIS ADMINISTRATIVE RULING
OF INELIGIBILITY.  SINCE THE ADMINISTRATIVE DETERMINATION IS FINAL, THE
ALIEN CAN REMOVE THE BAR TO CONSIDERATION OF SUSPENSION ONLY BY A
JUDICIAL DETERMINATION OF HIS ELIGIBILITY FOR CITIZENSHIP.  THIS IS AN
ACTUAL CONTROVERSY BETWEEN THE ALIEN AND IMMIGRATION OFFICIALS OVER THE
LEGAL RIGHT OF THE ALIEN TO BE CONSIDERED FOR SUSPENSION.  AS SUCH A
CONTROVERSY OVER FEDERAL LAWS, IT IS WITHIN THE JURISDICTION OF FEDERAL
COURTS, 28 U.S.C. SEC. 1331, AND THE TERMS OF THE DECLARATORY JUDGMENT
ACT, 28 U.S.C. SEC. 2201. 

IT WAS SO HELD IN PERKINS V. ELG, 307 U.S. 325, WHERE A DECLARATORY
JUDGMENT ACTION WAS BROUGHT AGAINST THE SECRETARY OF LABOR, THEN THE
EXECUTIVE OFFICIAL IN CHARGE OF DEPORTATION OF ALIENS, THE SECRETARY OF
STATE, AND THE COMMISSIONER OF IMMIGRATION, TO SETTLE CITIZENSHIP
STATUS.  THE DEPARTMENT OF LABOR HAD NOTIFIED MISS ELG, WHO WAS NOT IN
CUSTODY, THAT SHE WAS NOT A CITIZEN AND WAS ILLEGALLY REMAINING IN THE
UNITED STATES, AND THE DEPARTMENT OF STATE HAD REFUSED HER A PASSPORT
"SOLELY ON THE GROUND THAT SHE HAD LOST HER NATIVE BORN AMERICAN
CITIZENSHIP."  THE DISTRICT COURT SUSTAINED A MOTION TO DISMISS THE
PROCEEDING AGAINST THE SECRETARY OF STATE BECAUSE HIS FUNCTION AS TO
PASSPORTS WAS DISCRETIONARY, BUT DECLARED AGAINST THE CONTENTION OF THE
SECRETARY OF LABOR AND HELD THAT MISS ELG HAD NOT LOST HER AMERICAN
CITIZENSHIP.  ON APPEAL, THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA AFFIRMED BOTH THE DISMISSAL OF THE SECRETARY OF STATE FROM THE
PROCEEDING AND THE HOLDING THAT MISS ELG WAS A CITIZEN, AND ALSO
DETERMINED THAT THE CASE WAS PROPERLY BROUGHT WITHIN THE DECLARATORY
JUDGMENT ACT.  PERKINS V. ELG, 69 APP. D.C. 175, 99 F.2D 408.  THE
UNITED STATES RAISED NO QUESTION ON ITS PETITION FOR CERTIORARI AS TO
THE PROPRIETY OF THE DECLARATORY JUDGMENT ACTION.  MISS ELG, HOWEVER,
OBTAINED CERTIORARI FROM THE DISMISSAL OF THE PROCEEDING AGAINST THE
SECRETARY OF STATE, AND THE UNITED STATES DEFENDED THE JUDGMENT OF
DISMISSAL ON THE GROUND THAT THE DECLARATORY JUDGMENT ACT DID NOT ADD
TO FEDERAL COURT JURISDICTION BUT MERELY GAVE AN ADDITIONAL REMEDY. 
FN12  IN THE GOVERNMENT'S BRIEF IT WAS SAID JUDICIAL JURISDICTION WOULD
BE EXPANDED WITHOUT WARRANT "BY PERMITTING THE COURT TO SUBSTITUTE ITS
DISCRETION FOR THAT OF THE EXECUTIVE DEPARTMENTS IN A MATTER BELONGING
TO THE PROPER JURISDICTION OF THE LATTER."  WE REJECTED THAT CONTENTION
AND REVERSED THE COURT OF APPEALS ON THIS POINT, SAYING, 

"THE COURT BELOW, PROPERLY RECOGNIZING THE EXISTENCE OF AN ACTUAL
CONTROVERSY WITH THE DEFENDANTS (AETNA LIFE INS. CO. V. HAWORTH, 300
U.S. 227), DECLARED MISS ELG 'TO BE A NATURAL BORN CITIZEN OF THE
UNITED STATES,' AND WE THINK THAT THE DECREE SHOULD INCLUDE THE
SECRETARY OF STATE AS WELL AS THE OTHER DEFENDANTS.  THE DECREE IN THAT
SENSE WOULD IN NO WAY INTERFERE WITH THE EXERCISE OF THE SECRETARY'S
DISCRETION WITH RESPECT TO THE ISSUE OF A PASSPORT BUT WOULD SIMPLY
PRECLUDE THE DENIAL OF A PASSPORT ON THE SOLE GROUND THAT MISS ELG HAD
LOST HER AMERICAN CITIZENSHIP."  307 U.S. 349-350.  FN13 

SO HERE A DETERMINATION THAT KRISTENSEN IS NOT BARRED FROM
CITIZENSHIP BY SEC. 3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF
1940 ONLY DECLARES THAT HE HAS SUCH STATUS AS ENTITLES HIM TO
CONSIDERATION UNDER SEC. 19(C) OF THE IMMIGRATION ACT.  WE THINK THAT
THE PRESENT PROCEEDING IS PROPER.  FN14 

ELIGIBILITY FOR NATURALIZATION.  - UNDER SEC. 3(A) OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, KRISTENSEN WAS LIABLE FOR SERVICE IF
"RESIDING" IN THE UNITED STATES WITHIN THE MEANING OF THE ACT.  SECTION
3(A) ALSO PROVIDED THAT IF HE APPLIED "TO BE RELIEVED FROM SUCH
LIABILITY" AS A SUBJECT OF A NEUTRAL COUNTRY HE WOULD BE EXCUSED FROM
SERVICE BUT WOULD THEREAFTER BE DEBARRED FROM OUR CITIZENSHIP.  FN15 

IF KRISTENSEN WAS NOT "RESIDING" AT THE TIME OF HIS APPLICATION FOR
RELIEF, HE COULD NOT THEN HAVE HAD "SUCH LIABILITY" FOR SERVICE.  IF
THERE WAS NO "LIABILITY" FOR SERVICE, THE DISQUALIFICATION FOR
CITIZENSHIP UNDER THE PENALTY CLAUSE COULD NOT ARISE BECAUSE THE
APPLICANT HAD NOT MADE THE "APPLICATION" REFERRED TO IN THE STATUTE AS
"SUCH APPLICATION."  "SUCH APPLICATION" REFERS TO AN APPLICATION TO BE
RELIEVED FROM "SUCH LIABILITY."  AS THERE WAS NO "LIABILITY" FOR
SERVICE, HIS ACT IN APPLYING FOR RELIEF FROM A NONEXISTENT DUTY COULD
NOT CREATE THE BAR AGAINST NATURALIZATION.  BY THE TERMS OF THE
STATUTE, THAT BAR ONLY COMES INTO EXISTENCE WHEN AN ALIEN RESIDENT
LIABLE FOR SERVICE ASKS TO BE RELIEVED.    THE QUESTION, THEN, IS
WHETHER KRISTENSEN WAS "RESIDING," WITHIN THE MEANING OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940 AND REGULATIONS ISSUED THEREUNDER, AT
THE TIME OF HIS APPLICATION, MARCH 30, 1942.  AS WE CONCLUDE THAT HE
WAS NOT A RESIDENT UNDER THE ACT AT THE TIME OF HIS APPLICATION FOR
RELIEF FROM MILITARY SERVICE, WE DO NOT DECIDE WHETHER DENMARK WAS A
NEUTRAL COUNTRY.  NOR NEED WE DETERMINE WHETHER THE BAR AGAINST
CITIZENSHIP HAS BEEN REMOVED BY THE TERMINATION OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940.  FN16 

THE PHRASE OF SEC. 3(A), "EVERY OTHER MALE PERSON RESIDING IN THE
UNITED STATES," WHEN USED AS IT IS, IN JUXTAPOSITION WITH "EVERY MALE
CITIZEN," FN17  FALLS SHORT OF SAYING THAT EVERY PERSON IN THE UNITED
STATES IS SUBJECT TO MILITARY SERVICE.  BUT THE ACT DID NOT DEFINE WHO
WAS A "MALE PERSON RESIDING IN THE UNITED STATES," LIABLE FOR TRAINING
AND SERVICE AFTER DECEMBER 20, 1941.  55 STAT. 845.  FN18  SUCH
PRECISIVENESS WAS LEFT FOR ADMINISTRATIVE REGULATION.  SECTION 10(A)
AND (B), 54 STAT. 893, 894, AUTHORIZED THE PRESIDENT TO PRESCRIBE RULES
AND REGULATIONS FOR THE ACT WITH POWER OF DELEGATION.  THE PRESIDENT
PRESCRIBED THE FIRST REGULATIONS ON SEPTEMBER 23, 1940, AND AUTHORIZED
THE DIRECTOR TO PRESCRIBE AMENDMENTS.  EXEC. ORDER 8545, 3 CFR, 1943
CUM. SUPP., 719, 722.  AMENDMENTS PROMULGATING THE REGULATIONS HERE
APPLICABLE WERE ISSUED, EFFECTIVE FEBRUARY 7, 1942, 7 FED. REG. 855. 
THEY ARE SET OUT BELOW.  FN19  UNDER THESE REGULATIONS IT WOULD SEEM
THAT KRISTENSEN, WHO NEVER DECLARED AN INTENTION TO BECOME A CITIZEN OF
THE UNITED STATES AND WHO ENTERED THE UNITED STATES IN AUGUST 1939, WAS
NOT CLASSIFIED AS A RESIDENT NEUTRAL ALIEN UNTIL MAY 16, 1942. 
OTHERWISE, THERE WOULD HAVE BEEN NO OCCASION FOR SEC. 611.13(B), WHICH
DECLARES THE MALE ALIEN WHO REMAINS IN THE UNITED STATES AFTER MAY 16,
1942, TO BE A RESIDENT.  UNTIL THAT DATE HE WAS IN THE SAME CATEGORY AS
THE NEWLY ARRIVED NONDECLARANT ALIEN WHO, UNDER THE REGULATIONS AND THE
ACT, DID NOT BECOME A RESIDENT FOR THREE MONTHS.  THE APPLICATION FOR
RELIEF FROM SERVICE WAS MADE ON MARCH 30, 1942. 

THE REGULATIONS, QUOTED ABOVE, EITHER MADE AN ALIEN IN KRISTENSEN'S
SITUATION A NONRESIDENT OF THE UNITED STATES FOR THE PURPOSE OF THE
SELECTIVE TRAINING AND SERVICE ACT, BETWEEN FEBRUARY 7 AND MAY 17,
1942, OR THEY WERE NONDETERMINATIVE OF STATUS IN THAT PERIOD.  FN20  IN
THE ABSENCE OF A DETERMINATIVE REGULATION, THE MEANING OF THE WORD
"RESIDING" IN SEC. 3(A) REQUIRES EXAMINATION.  THE MEANING OF THAT
WORD, OF COURSE, DEPENDS UPON THE MEANING OF "RESIDENCE."  "RESIDENCE"
SOMETIMES EQUALS DOMICILE, AS IN VOTING.  AGAIN, AS IN TAXATION, ONE
WHO IS NOT A MERE TRANSIENT OR SOJOURNER IS A "RESIDENT."  SEC. 29.211
2, INCOME TAX REGULATIONS.  THE DEFINITION VARIES WITH THE STATUTE. 
RESTATEMENT, CONFLICT OF LAWS (1934), SEC. 9, COMMENTE.  SEE CARROLL V.
UNITED STATES, 133 F.2D 690, 693.  IN A NATURALIZATION CASE WHERE
ELIGIBILITY DEPENDED UPON THE REQUIRED RESIDENCE IN THE UNITED STATES,
IT WAS HELD THAT AN ENFORCED SERVICE IN THE GERMAN ARMY 1914-1918 AND
SUBSEQUENT FOREIGN RESIDENCE UNTIL 1921 ON ACCOUNT OF LACK OF MEANS AND
INABILITY TO OBTAIN A PASSPORT DID NOT BREAK THE CONTINUITY OF AMERICAN
RESIDENCE.  THE COURT THERE SAID, 

"WE SHALL NOT TRY TO DEFINE WHAT IS THE NECESSARY ATTITUDE OF MIND TO
CREATE OR RETAIN A RESIDENCE UNDER THIS STATUTE, AND HOW IT DIFFERS
FROM THE CHOICE OF A 'HOME,' WHICH IS THE TEST OF DOMICILE.  FRANKLY IT
IS DOUBTFUL WHETHER COURTS HAVE AS YET COME TO ANY AGREEMENT ON THE
QUESTION.  BUT THERE IS SUBSTANTIAL UNANIMITY THAT, HOWEVER CONSTRUED
IN A STATUTE, RESIDENCE INVOLVES SOME CHOICE, AGAIN LIKE DOMICILE, AND
THAT PRESENCE ELSEWHERE THROUGH CONSTRAINT HAS NO EFFECT UPON IT." 
FN21 

WHEN WE CONSIDER THAT SEC. 3(A) WAS OBVIOUSLY INTENDED TO REQUIRE
MILITARY SERVICE FROM ALL WHO SOUGHT THE ADVANTAGES OF OUR LIFE AND THE
PROTECTION OF OUR FLAG, WE CANNOT CONCLUDE, WITHOUT REGULATIONS SO
DEFINING RESIDENCE, THAT A SOJOURN WITHIN OUR BORDERS MADE NECESSARY BY
THE CONDITIONS OF THE TIMES WAS RESIDENCE WITHIN THE MEANING OF THE
STATUTE. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  "(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 ...  (2) SUSPEND
DEPORTATION OF SUCH ALIEN IF HE IS NOT INELIGIVLE 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; ...  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.  THESE
REPORTS SHALL BE SUBMITTED ON THE 1ST AND 15TH DAY OF EACH CALENDAR
MONTH IN WHICH CONGRESS IS IN SESSION.  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.  IF PRIOR TO THE
CLOSE OF THE SESSION OF THE CONGRESS NEXT FOLLOWING THE SESSION AT
WHICH A CASE IS REPORTED, THE CONGRESS DOES NOT PASS SUCH A CONCURRENT
RESOLUTION, THE ATTORNEY GENERAL SHALL THEREUPON DEPORT SUCH ALIEN IN
THE MANNER PROVIDED BY LAW." 

FN2  SECTION 3(A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940,
54 STAT. 885, AS AMENDED, 55 STAT. 845, PROVIDES IN PART: 

"EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, EVERY MALE CITIZEN OF THE
UNITED STATES, AND EVERY OTHER MALE PERSON RESIDING IN THE UNITED
STATES  ...  SHALL BE LIABLE FOR TRAINING AND SERVICE IN THE LAND OR
NAVAL FORCES OF THE UNITED STATES:  PROVIDED, THAT ANY CITIZEN OR
SUBJECT OF A NEUTRAL COUNTRY SHALL BE RELIEVED FROM LIABILITY FOR
TRAINING AND SERVICE UNDER THIS ACT IF, PRIOR TO HIS INDUCTION INTO THE
LAND OR NAVAL FORCES, HE HAS MADE APPLICATION TO BE RELIEVED FROM SUCH
LIABILITY IN THE MANNER PRESCRIBED BY AND IN ACCORDANCE WITH RULES AND
REGULATIONS PRESCRIBED BY THE PRESIDENT, BUT ANY PERSON WHO MAKES SUCH
APPLICATION SHALL THEREAFTER BE DEBARRED FROM BECOMING A CITIZEN OF THE
UNITED STATES  ...  " 

FN3  SEE NOTE 1. 

FN4  WHILE RESPONDENT ALLEGED THAT HIS APPLICATION FOR DEFERMENT WAS
FILED BECAUSE OF ERRONEOUS ADVICE RECEIVED FROM A MEMBER OF THE LOCAL
SELECTIVE SERVICE BOARD, IT SUFFICIENTLY, THOUGH INARTISTICALLY,
APPEARS FROM THE COMPLAINT THAT ITS TRUE GRAVAMEN IS THE
INEFFECTIVENESS OF THE APPLICATION FOR RELIEF FROM SERVICE TO BAR THE
ALIEN'S NATURALIZATION BECAUSE HE WAS NOT "RESIDING" IN THE UNITED
STATES WITHIN THE MEANING OF THE SELECTIVE TRAINING AND SERVICE ACT AT
THE TIME THE APPLICATION WAS FILED.  THIS CONSTRUCTION WAS PUT UPON THE
COMPLAINT BY THE COURT OF APPEALS AND HAS BEEN ADOPTED BY THE UNITED
STATES IN ITS PRESENTATION HERE. 

FN5  86 U.S. APP. D.C. 48, 56, 179 F.2D 796, 804. 

FN6  FEDERAL CONSTITUTIONAL COURTS ACT ONLY ON CASES AND
CONTROVERSIES AND DO NOT GIVE ADVISORY OPINIONS.  HAYBURN'S CASE, 2
DALL.  409; MUSKRAT V. UNITED STATES, 219 U.S. 346; CHICAGO & SOUTHERN
AIR LINES V. WATERMAN S.S. CORP., 333 U.S. 103, 113-14. 

FN7 CF. GORDON V. UNITED STATES, 117 U.S. 697, 702; UNITED STATES V.
JEFFERSON ELECTRIC CO., 291 U.S. 386, 400-401; CHICAGO & SOUTHERN AIR
LINES V. WATERMAN S.S. CORP., SUPRA. 

FN8  SEE NOTE 1. 

FN9  KING BRIDGE CO. V. OTOE COUNTY, 120 U.S. 225, 226; UNITED STATES
V. CORRICK, 298 U.S. 435, 440. 

FN10  WE THINK THE ATTORNEY GENERAL'S REFUSAL TO SUSPEND DEPORTATION
FOR THE REASON OF INELIGIBILITY FOR CITIZENSHIP HAS ADMINISTRATIVE
FINALITY.  ADMINISTRATIVE REMEDIES ARE EXHAUSTED.  COMPARE LEVERS V.
ANDERSON, 326 U.S. 219. 

FN11  NG FUNG HO V. WHITE, 259 U.S. 276; MAHLER V. EBY, 264 U.S. 32,
43; WONG YANG SUNG V. MCGRATH, 339 U.S. 33.  CF. GUSIK V. SCHILDER, 340
U.S. 128; ESTEP V. UNITED STATES, 327 U.S. 114, 122. 

FN12  AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240; UNITED
STATES V. WEST VIRGINIA, 295 U.S. 463, 475; AETNA CASUALTY & SURETY CO.
V. QUARLES, 92 F.2D 321, 324, WERE CITED. 

FN13  8 U.S.C. SEC. 903 HAS SINCE BEEN ENACTED, PROVIDING IN PART: 

"IF ANY PERSON WHO CLAIMS A RIGHT OR PRIVILEGE AS A NATIONAL OF THE
UNITED STATES IS DENIED SUCH RIGHT OR PRIVILEGE BY ANY DEPARTMENT OR
AGENCY, OR EXECUTIVE OFFICIAL THEREOF, UPON THE GROUND THAT HE IS NOT A
NATIONAL OF THE UNITED STATES, SUCH PERSON, REGARDLESS OF WHETHER HE IS
WITHIN THE UNITED STATES OR ABROAD, MAY INSTITUTE AN ACTION AGAINST THE
HEAD OF SUCH DEPARTMENT OR AGENCY IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT OF COLUMBIA OR IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT IN WHICH SUCH PERSON CLAIMS A PERMANENT
RESIDENCE FOR A JUDGMENT DECLARING HIM TO BE A NATIONAL OF THE UNITED
STATES." 

FN14  CF. BENZIAN V. GODWIN, 168 F.2D 952. 

FN15  SEE NOTE 2. 

FN16  SEE SEC. 16(B), 54 STAT. 897, AS AMENDED, 59 STAT. 166, 60
STAT. 181, 342; BENZIAN V. GODWIN, 168 F.2D 952, 956. 

FN17  SEE NOTE 2. 

FN18  THE ORIGINAL VERSION OF THE ACT REQUIRED EVERY MALE ALIEN
RESIDING IN THE UNITED STATES TO REGISTER, BUT SUBJECTED ONLY ALIENS
WHO HAD DECLARED THEIR INTENTION TO BECOME CITIZENS TO LIABILITY FOR
SERVICE.  54 STAT. 885.  THE ATTORNEY GENERAL CONSTRUED THE WORDS "MALE
ALIEN RESIDING IN THE UNITED STATES," THE EARLIER PHRASE DEFINING THOSE
SUBJECT TO REGISTRATION, TO INCLUDE "EVERY ALIEN  ...  WHO LIVES OR HAS
A PLACE OF RESIDENCE OR ABODE IN THE UNITED STATES, TEMPORARY OR
OTHERWISE, OR FOR WHATEVER PURPOSE TAKEN OR ESTABLISHED,  ...  " 39 OP.
ATTY. GEN. 504, 505. 

FN19  "SEC.  611.12 WHEN A NONDECLARANT ALIEN IS RESIDING IN THE
UNITED STATES.  EVERY MALE ALIEN WHO IS NOW IN OR HEREAFTER ENTERS THE
UNITED STATES WHO HAS NOT DECLARED HIS INTENTION TO BECOME A CITIZEN OF
THE UNITED STATES, UNLESS HE IS IN ONE OF THE CATEGORIES SPECIFICALLY
EXCEPTED BY THE PROVISIONS OF SEC. 611.13, IS 'A MALE PERSON RESIDING
IN THE UNITED STATES' WITHIN THE MEANING OF SECTION 2 AND SECTION 3 OF
THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED. 

"SEC. 611.13 WHEN A NONDECLARANT ALIEN IS NOT RESIDING IN THE UNITED
STATES.  (A)  A MALE ALIEN WHO IS NOW IN OR HEREAFTER ENTERS THE UNITED
STATES WHO HAS NOT DECLARED HIS INTENTION TO BECOME A CITIZEN OF THE
UNITED STATES IS NOT 'A MALE PERSON RESIDING IN THE UNITED STATES'
WITHIN THE MEANING OF SECTION 2 OR SECTION 3 OF THE SELECTIVE TRAINING
AND SERVICE ACT OF 1940, AS AMENDED: 

     .         .         .         .       . 

"(6)  IF HE HAS ENTERED OR HEREAFTER ENTERS THE UNITED STATES IN A
MANNER PRESCRIBED BY ITS LAWS AND DOES NOT REMAIN IN THE UNITED STATES
AFTER MAY 16, 1942, OR FOR MORE THAN 3 MONTHS FOLLOWING THE DATE OF HIS
ENTRY, WHICHEVER IS THE LATER. 

"(B)  WHEN A MALE ALIEN WHO HAS NOT DECLARED HIS INTENTION TO BECOME
A CITIZEN OF THE UNITED STATES HAS ENTERED OR HEREAFTER ENTERS THE
UNITED STATES IN A MANNER PRESCRIBED BY ITS LAWS AND REMAINS IN THE
UNITED STATES AFTER MAY 16, 1942, OR FOR MORE THAN 3 MONTHS FOLLOWING
THE DATE OF HIS ENTRY, WHICHEVER IS THE LATER, HE IS 'A MALE PERSON
RESIDING IN THE UNITED STATES' WITHIN THE MEANING OF SECTION 2 AND
AMENDED, UNLESS HE HAS FILED AN ALIEN'S APPLICATION FOR DETERMINATION
OF RESIDENCE (FORM 302) IN THE MANNER PROVIDED IN SEC. 911.21 AND SUCH
APPLICATION IS EITHER (1) PENDING OR (2) HAS RESULTED IN A
DETERMINATION THAT HE IS NOT 'A MALE PERSON RESIDING IN THE UNITED
STATES' WITHIN THE MEANING OF SECTION 2 OR SECTION 3 OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, AS AMENDED, IN EITHER OF WHICH EVENTS
HE SHALL NOT BE CONSIDERED AS 'A MALE PERSON RESIDING IN THE UNITED
STATES' WITHIN THE MEANING OF SECTION 2 OR SECTION 3 OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, AS AMENDED, DURING THE PERIOD WHEN
SUCH APPLICATION IS PENDING OR DURING THE PERIOD COVERED BY THE ALIEN'S
CERTIFICATE OF NONRESIDENCE (FORM 303) ISSUED TO HIM AS A RESULT OF THE
DETERMINATION THAT HE IS NOT 'A MALE PERSON RESIDING IN THE UNITED
STATES' WITHIN THE MEANING OF SECTION 2 OR SECTION 3 OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, AS AMENDED.  (54 STAT. 885; 50
U.S.C., SUP. 301-318, INCLUSIVE; E.O. NO. 8545, 5 F.R. 3779)" 

FN20 APPARENTLY THE REGULATIONS INTENDED TO GIVE ALIENS TIME TO
ENABLE THEM TO FILE THE ALIEN'S APPLICATION FOR DETERMINATION OF
RESIDENCE, SEE 7 FED. REG. 2084, SEC. 611.21(B)(1), OR TO LEAVE THE
COUNTRY BEFORE THEIR STATUS AS "RESIDENTS," RESULTING IN LIABILITY FOR
MILITARY SERVICE, WAS FIXED. 

FN21  NEUBERGER V. UNITED STATES, 13 F.2D 541, 542.  CF. STADTMULLER
V. MILLER, 11 F.2D 732, 738. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE DOUGLAS DISSENTS FROM THE HOLDING OF THE COURT THAT
RESPONDENT WAS NOT "RESIDING" IN THE UNITED STATES WITHIN THE MEANING
OF SEC. 3(A) OF THE ACT.  SEE THE OPINION OF JUDGE FRANK IN BENZIAN V.
GODWIN, 168 F.2D 952. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON, CONCURRING. 

I CONCUR IN THE JUDGMENT AND OPINION OF THE COURT.  BUT SINCE IT IS
CONTRARY TO AN OPINION WHICH, AS ATTORNEY GENERAL, I RENDERED IN 1940,
I OWE SOME WORD OF EXPLANATION.  39 OP. ATTY. GEN. 504.  I AM ENTITLED
TO SAY OF THAT OPINION WHAT ANY DISCRIMINATING READER MUST THINK OF IT
THAT IT WAS AS FOGGY AS THE STATUTE THE ATTORNEY GENERAL WAS ASKED TO
INTERPRET.  IT LEFT THE DIFFICULT BORDERLINE QUESTIONS POSED BY THE
SECRETARY OF WAR UNANSWERED, COVERING ITS LACK OF PRECISION WITH
GENERALITIES WHICH, HOWEVER, GAVE OFF OVERTONES OF ASSURANCE THAT THE
ACT APPLIED TO NEARLY EVERY ALIEN FROM A NEUTRAL COUNTRY CAUGHT IN THE
UNITED STATES UNDER ALMOST ANY CIRCUMSTANCES WHICH REQUIRED HIM TO STAY
OVERNIGHT.    THE OPINION DID NOT AT ALL CONSIDER ASPECTS OF OUR
DIPLOMATIC HISTORY, WHICH I NOW THINK, AND SHOULD THINK I WOULD THEN
HAVE THOUGHT, OUGHT TO BE CONSIDERED IN APPLYING ANY CONSCRIPTION ACT
TO ALIENS.    IN TIMES GONE BY, MANY UNITED STATES CITIZENS BY
NATURALIZATION HAVE RETURNED TO VISIT THEIR NATIVE LANDS.  THERE THEY
FREQUENTLY WERE HELD FOR MILITARY DUTY BY GOVERNMENTS WHICH REFUSED TO
RECOGNIZE A GENERAL RIGHT OF EXPATRIATION.  THE UNITED STATES
CONSISTENTLY HAS ASSERTED THE RIGHT OF ITS CITIZENS TO BE FREE FROM
SEIZURE FOR MILITARY DUTY BY REASON OF TEMPORARY AND LAWFUL PRESENCE IN
FOREIGN LANDS.  IMMUNITIES WE HAVE ASSERTED FOR OUR OWN CITIZENS WE
SHOULD NOT DENY TO THOSE OF OTHER FRIENDLY NATIONS.  NOR SHOULD WE
CONSTRUE OUR LEGISLATION TO PENALIZE OR PREJUDICE SUCH ALIENS FOR
ASSERTING A RIGHT WE HAVE CONSISTENTLY ASSERTED AS A MATTER OF NATIONAL
POLICY IN DEALING WITH OTHER NATIONS.  OF COURSE, IF AN ALIEN IS NOT A
MERE SOJOURNER BUT ACQUIRES RESIDENCE HERE IN ANY PERMANENT SENSE, HE
SUBMITS HIMSELF TO OUR LAW AND ASSUMES THE OBLIGATIONS OF A RESIDENT
TOWARD THIS COUNTRY. 

THE LANGUAGE OF THE SELECTIVE SERVICE ACT CAN BE INTERPRETED
CONSISTENTLY WITH THIS HISTORY OF OUR INTERNATIONAL CONTENTIONS.  I
THINK THE DECISION OF THE COURT TODAY DOES SO.  FAILURE OF THE ATTORNEY
GENERAL'S OPINION TO CONSIDER THE MATTER IN THIS LIGHT IS DIFFICULT TO
EXPLAIN IN VIEW OF THE FACT THAT HE PERSONALLY HAD URGED THIS HISTORY
UPON THIS COURT IN ARGUING PERKINS V. ELG, 307 U.S. 325.  ITS DETAILS
MAY BE FOUND IN THE BRIEFS AND THEIR CITED SOURCES.  IT WOULD BE
CHARITABLE TO ASSUME THAT NEITHER THE NOMINAL ADDRESSEE NOR THE NOMINAL
AUTHOR OF THE OPINION READ IT.  THAT, I DO NOT DOUBT, EXPLAINS MR.
STIMSON'S ACCEPTANCE OF AN ANSWER SO INADEQUATE TO HIS QUESTIONS.  BUT
NO SUCH CONFESSION AND AVOIDANCE CAN EXCUSE THE THEN ATTORNEY GENERAL. 

PRECEDENT, HOWEVER, IS NOT LACKING FOR WAYS BY WHICH A JUDGE MAY
RECEDE FROM A PRIOR OPINION THAT HAS PROVEN UNTENABLE AND PERHAPS
MISLED OTHERS.  SEE CHIEF JUSTICE TANEY, LICENSE CASES, 5 HOW.  504,
RECANTING VIEWS HE HAD PRESSED UPON THE COURT AS ATTORNEY GENERAL OF
MARYLAND IN BROWN V. MARYLAND, 12 WHEAT.  419.  BARON BRAMWELL
EXTRICATED HIMSELF FROM A SOMEWHAT SIMILAR EMBARRASSMENT BY SAYING,
"THE MATTER DOES NOT APPEAR TO ME NOW AS IT APPEARS TO HAVE APPEARED TO
ME THEN."  ANDREWS V. STYRAP, 26 L.T.R. (N.S.)  704, 706.  AND MR.
JUSTICE STORY, ACCOUNTING FOR HIS CONTRADICTION OF HIS OWN FORMER
OPINION, QUITE PROPERLY PUT THE MATTER:  "MY OWN ERROR, HOWEVER, CAN
FURNISH NO GROUND FOR ITS BEING ADOPTED BY THIS COURT  ...  "  UNITED
STATES V. GOODING, 12 WHEAT.  460, 478.  PERHAPS DR. JOHNSON REALLY
WENT TO THE HEART OF THE MATTER WHEN HE EXPLAINED A BLUNDER IN HIS
DICTIONARY - "IGNORANCE, SIR, IGNORANCE."  BUT AN ESCAPE LESS SELF
DEPRECIATING WAS TAKEN BY LORD WESTBURY, WHO, IT IS SAID, REBUFFED A
BARRISTER'S RELIANCE UPON AN EARLIER OPINION OF HIS LORDSHIP:  "I CAN
ONLY SAY THAT I AM AMAZED THAT A MAN OF MY INTELLIGENCE SHOULD HAVE
BEEN GUILTY OF GIVING SUCH AN OPINION."  IF THERE ARE OTHER WAYS OF
GRACEFULLY AND GOOD-NATUREDLY SURRENDERING FORMER VIEWS TO A BETTER
CONSIDERED POSITION, I INVOKE THEM ALL. 
..END :




CITIES SERVICE CO. V. PEERLESS CO., 340 U.S. 179 


NO. 153.  ARGUED NOVEMBER 9-10, 1950.  - DECIDED DECEMBER 11, 1950.  -
203 OKLA. 35, 220 P.2D 279, AFFIRMED. 


THE OKLAHOMA CORPORATION COMMISSION, AFTER HEARINGS AND ON FINDINGS
MADE IN PROCEEDINGS BEFORE IT, ISSUED AN ORDER FIXING A MINIMUM
WELLHEAD PRICE ON ALL GAS TAKEN FROM A NATURAL GAS FIELD LOCATED WITHIN
THE STATE.  A SECOND ORDER DIRECTED APPELLANT, A PRODUCER IN THIS FIELD
AND OPERATOR OF AN INTERSTATE GAS PIPE-LINE SYSTEM, TO TAKE GAS RATABLY
FROM ANOTHER PRODUCER IN THE FIELD, AT THE PRICE FIXED IN THE FIRST
ORDER.  A LARGE PERCENTAGE OF THE PRODUCTION OF THE FIELD WAS SOLD IN
INTERSTATE COMMERCE.  HELD:  THE ORDERS OF THE COMMISSION WERE VALID
UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT AND THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 180
183, 185-189. 

1.  A STATE MAY ADOPT REASONABLE REGULATIONS TO PREVENT ECONOMIC AND
PHYSICAL WASTE OF NATURAL GAS.  P. 185. 

2.  PREVENTION OF WASTE OF NATURAL RESOURCES, PROTECTION OF THE
CORRELATIVE RIGHTS OF OWNERS THROUGH RATABLE TAKING, AND PROTECTION OF
THE ECONOMY OF THE STATE MAY JUSTIFY LEGISLATIVE CONTROL OVER
PRODUCTION EVEN THOUGH THE USES TO WHICH PROPERTY MAY PROFITABLY BE PUT
ARE RESTRICTED.  PP. 185-186. 

3.  A PRICE-FIXING ORDER, LIKE ANY OTHER REGULATION, IS LAWFUL IF
SUBSTANTIALLY RELATED TO A LEGITIMATE END SOUGHT TO BE ATTAINED.  P.
186. 

4.  THERE WAS AMPLE EVIDENCE IN THE PROCEEDINGS BEFORE THE COMMISSION
TO SUSTAIN ITS FINDING THAT EXISTING LOW FIELD PRICES FOR GAS WERE
RESULTING IN ECONOMIC WASTE AND WERE CONDUCIVE TO PHYSICAL WASTE; AND
THAT WAS A SUFFICIENT BASIS FOR THE ORDERS ISSUED.  PP. 180-183, 186. 

5.  IT IS NO CONCERN OF THIS COURT THAT OTHER REGULATORY DEVICES
MIGHT BE MORE APPROPRIATE, OR THAT LESS EXTENSIVE MEASURES MIGHT
SUFFICE.  P. 186. 

6.  IN A FIELD OF THIS COMPLEXITY WITH SUCH DIVERSE INTERESTS
INVOLVED, THIS COURT CANNOT SAY THAT THERE IS A CLEAR NATIONAL INTEREST
SO HARMED THAT THE STATE PRICE-FIXING ORDERS HERE EMPLOYED FALL WITHIN
THE BAN OF THE COMMERCE CLAUSE.  PP. 186-188. 

7.  IT IS NOT FOR THIS COURT TO CONSIDER WHETHER THE STATE'S
UNILATERAL EFFORTS TO CONSERVE GAS WILL BE FULLY EFFECTIVE.  P. 188. 

8.  HOOD & SONS V. DU MOND, 336 U.S. 525, DISTINGUISHED.  P. 188. 

9.  THERE IS BEFORE THIS COURT NO QUESTION OF CONFLICT BETWEEN THE
ORDERS OF THE STATE COMMISSION AND FEDERAL AUTHORITY UNDER THE NATURAL
GAS ACT.  PP. 188-189. 

CITIES SERVICE GAS CO. V. PEERLESS OIL & GAS CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

TWO ORDERS OF THE OKLAHOMA CORPORATION COMMISSION, CHALLENGED AS
VIOLATIVE OF THE FEDERAL CONSTITUTION, WERE SUSTAINED BY THE STATE
SUPREME COURT.  203 OKLA. 35, 220 P.2D 279.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 189. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS THE POWER OF A STATE TO FIX PRICES AT THE
WELLHEAD ON NATURAL GAS PRODUCED WITHIN ITS BORDERS AND SOLD
INTERSTATE.  IT ORIGINATES FROM PROCEEDINGS BEFORE THE OKLAHOMA
CORPORATION COMMISSION WHICH TERMINATED WITH THE PROMULGATION OF TWO
ORDERS.  THE FIRST ORDER SET A MINIMUM WELLHEAD PRICE ON ALL GAS TAKEN
FROM THE GUYMON-HUGOTON FIELD, LOCATED IN TEXAS COUNTY, OKLAHOMA.  THE
SECOND DIRECTED CITIES SERVICE, A PRODUCER IN THIS FIELD AND OPERATOR
OF AN INTERSTATE GAS PIPE-LINE SYSTEM, TO TAKE GAS RATABLY FROM
PEERLESS, ANOTHER PRODUCER IN THE SAME FIELD, AT THE PRICE INCORPORATED
IN THE FIRST ORDER.  THE SUPREME COURT OF OKLAHOMA UPHELD BOTH ORDERS
AGAINST CONTENTIONS THAT THEY CONTRAVENED THE CONSTITUTION AND STATUTES
OF OKLAHOMA AND THE FOURTEENTH AMENDMENT AND COMMERCE CLAUSE OF THE
CONSTITUTION OF THE UNITED STATES.  203 OKLA. 35, 220 P.2D 279(1950). 
FROM THIS JUDGMENT CITIES SERVICE APPEALED TO THIS COURT.  A
SUBSTANTIAL FEDERAL CLAIM HAVING BEEN DULY RAISED AND NECESSARILY
DENIED BY THE HIGHEST STATE COURT, WE NOTED PROBABLE JURISDICTION.  28
U.S.C. SEC. 1257(2). 

                          I. 

THE CASE MAY BE SUMMARIZED AS FOLLOWS.  THE HUGOTON GAS FIELD, 120
MILES LONG AND 40 MILES WIDE, LIES IN THE STATES OF TEXAS, OKLAHOMA AND
KANSAS.  THE OKLAHOMA PORTION, KNOWN AS THE GUYMON-HUGOTON FIELD, HAS
APPROXIMATELY 1,062,000 PROVEN ACRES WITH SOME 300 WELLS, OF WHICH 240
ARE PRODUCING.  ABOUT 90 PERCENT OF GUYMON-HUGOTON'S PRODUCTION IS
ULTIMATELY CONSUMED OUTSIDE THE STATE.  CITIES SERVICE, OPERATOR OF A
PIPE LINE CONNECTED WITH THE FIELD, OWNS ABOUT 300,000 ACRES AND 123
WELLS.  IN ADDITION, IT HAS 94 WELLS DEDICATED TO IT BY LEASE FOR THE
LIFE OF THE FIELD AND SOME 19 WELLS UNDER TERM LEASE, GIVING IT CONTROL
OVER 236 OF THE 300 WELLS.  ASIDE FROM THE HOLDINGS OF A FEW SMALL
TRACT OWNERS AND THE ACREAGES HELD IN TRUST BY THE OKLAHOMA LAND OFFICE
- SOME 49,600 ACRES - THE ONLY RESERVES IN THE FIELD NOT OWNED BY OR
AFFILIATED WITH A PIPE LINE ARE THOSE OF HARRINGTON-MARSH WITH SOME
75,000 ACRES AND PEERLESS WITH ABOUT 100,000 ACRES.  UNDER PREVAILING
MARKET CONDITIONS, WELLHEAD PRICES RANGE FROM 3.6 TO 5 CENTS PER
THOUSAND CUBIC FEET, VARYING PRICES BEING PAID TO DIFFERENT PRODUCERS
AT THE SAME TIME.  IN CONTRAST, THERE IS EVIDENCE THAT THE "COMMERCIAL
HEAT VALUE" OF NATURAL GAS, IN TERMS OF COMPETITIVE FUEL EQUIVALENTS,
IS IN EXCESS OF 10 CENTS PER THOUSAND CUBIC FEET AT THE WELLHEAD. 

WHILE THE GUYMON-HUGOTON FIELD HAS THREE PRINCIPAL PRODUCTION
HORIZONS, THEY ARE SO INTERCONNECTED AS TO MAKE IN EFFECT ONE LARGE
RESERVOIR OF GAS.  CITIES' WELLS ARE LOCATED IN AN AREA IN WHICH THE
GAS PRESSURE IS CONSIDERABLY LOWER THAN THAT FOUND BENEATH THE WELLS OF
PEERLESS.  AS A RESULT, PRODUCTION FROM CITIES' WELLS WAS CAUSING
DRAINAGE FROM THE PEERLESS SECTION OF THE FIELD, AND PEERLESS WAS
LOSING GAS EVEN THOUGH ITS WELLS WERE NOT PRODUCING. 

HAVING NO PIPE-LINE OUTLET OF ITS OWN, PEERLESS OFFERED TO SELL THE
POTENTIAL OUTPUT OF ITS WELLS TO CITIES SERVICE.  CITIES REFUSED EXCEPT
ON THE CONDITION THAT PEERLESS DEDICATE ALL GAS FROM ITS ACREAGE, AT A
PRICE OF 4 CENTS PER THOUSAND CUBIC FEET, FOR THE LIFE OF THE LEASES. 
DISSATISFIED WITH THE PRICE AND THE OTHER TERMS, PEERLESS REQUESTED THE
OKLAHOMA CORPORATION COMMISSION (A) TO ORDER CITIES TO MAKE A
CONNECTION WITH A PEERLESS WELL AND PURCHASE THE OUTPUT OF THAT WELL
RATABLY AT A PRICE FIXED BY THE COMMISSION, AND (B) TO FIX THE PRICE TO
BE PAID BY ALL PURCHASERS OF NATURAL GAS IN THE GUYMON-HUGOTON FIELD. 
SHORTLY THEREAFTER, THE OKLAHOMA LAND OFFICE INTERVENED AS OWNER IN
TRUST OF LARGE ACREAGES IN THE FIELD.  THE LAND OFFICE ALLEGED THAT NO
FAIR, ADEQUATE PRICE FOR NATURAL GAS EXISTED IN THE FIELD; THAT
EXISTING PRICES WERE DISCRIMINATORY, UNJUST AND ARBITRARY AND IF
CONTINUED WOULD DEPLETE, DESTROY AND EXHAUST THE FIELD WITHIN A FEW
YEARS.  IT JOINED PEERLESS' PRAYER FOR RELIEF.  THE COMMISSION
THEREUPON, BY WRITTEN NOTICE, INVITED ALL PRODUCERS AND PURCHASERS OF
GAS IN THE FIELD TO APPEAR AND PARTICIPATE IN THE PROCEEDINGS. 

THE COMMISSION HEARD TESTIMONY TO THE EFFECT THAT THE FIELD PRICE OF
GAS HAS A DIRECT BEARING ON CONSERVATION.  WITNESSES TESTIFIED THAT LOW
PRICES MAKE ENFORCEMENT OF CONSERVATION MORE DIFFICULT, RETARD
EXPLORATION AND DEVELOPMENT, AND RESULT IN ABANDONMENT OF WELLS LONG
BEFORE ALL RECOVERABLE GAS HAS BEEN EXTRACTED.  THEY ALSO TESTIFIED
THAT LOW PRICES CONTRIBUTE TO AN UNECONOMIC RATE OF DEPLETION AND
ECONOMIC WASTE OF GAS BY PROMOTING "INFERIOR" USES. 

AT THE END OF THE HEARINGS, THE COMMISSION CONCLUDED THAT THERE WAS
NO COMPETITIVE MARKET FOR GAS IN THE GUYMON-HUGOTON FIELD, THAT THE
INTEGRATED WELL AND PIPE-LINE OWNERS WERE ABLE TO DICTATE THE PRICES
PAID TO PRODUCERS WITHOUT PIPE-LINE OUTLETS, AND THAT AS A RESULT GAS
WAS BEING TAKEN FROM THE FIELD AT A PRICE BELOW ITS ECONOMIC VALUE.  IT
FURTHER CONCLUDED THAT THE TAKING OF GAS AT THE PREVAILING PRICES
RESULTED IN BOTH ECONOMIC AND PHYSICAL WASTE OF GAS, LOSS TO PRODUCER
AND ROYALTY OWNERS, LOSS TO THE STATE IN GROSS PRODUCTION TAXES,
INEQUITABLE TAKING OF GAS FROM THE COMMON SOURCE OF SUPPLY, AND
DISCRIMINATION AGAINST VARIOUS PRODUCERS IN THE FIELD.  ON THE BASIS OF
THESE FINDINGS, THE COMMISSION ISSUED THE TWO ORDERS CHALLENGED HERE. 
THE FIRST PROVIDED "THAT NO NATURAL GAS SHALL BE TAKEN OUT OF THE
PRODUCING STRUCTURES OR FORMATIONS IN THE GUYMON-HUGOTON FIELD  ...  AT
A PRICE, AT THE WELLHEAD, OF LESS THAN 7[ PER THOUSAND CUBIC FEET OF
NATURAL GAS MEASURED AT A PRESSURE OF 14.65 POUNDS ABSOLUTE PRESSURE
PER SQUARE INCH."  THE SECOND DIRECTED CITIES SERVICE "TO TAKE NATURAL
GAS RATABLY FROM  ...  (PEERLESS') WELL  ...  IN ACCORDANCE WITH THE
FORMULA FOR RATABLE TAKING PRESCRIBED IN ORDER NO. 17867 OF THIS
COMMISSION" (A PROVISION NOT UNDER ATTACK HERE), AND AT THE SAME PRICE
AND PRESSURE TERMS INDICATED IN THE GENERAL FIELD-PRICE ORDER. 

ON APPEAL TO THE OKLAHOMA SUPREME COURT, CITIES SERVICE ATTACKED THE
ORDERS ON THE FOLLOWING GROUNDS:  (1) THAT THE COMMISSION ACTED BEYOND
ITS AUTHORITY IN THAT OKLAHOMA STATUTES DID NOT PERMIT GENERAL PRICE
FIXING OR SPECIFIC PRICE-FIXING AT A FIGURE IN EXCESS OF THE PREVAILING
MARKET PRICE, AND IN THAT THE STATUTES DID NOT CONTEMPLATE THE
PREVENTION OF ECONOMIC, AS DISTINCT FROM PHYSICAL, WASTE; (2) THAT IF
CONSTRUED TO PERMIT SUCH PRICE-FIXING, THE STATUTES AND ORDERS
THEREUNDER VIOLATED THE STATE CONSTITUTION; (3) THAT IF SO CONSTRUED,
THE STATUTES AND ORDERS VIOLATED THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMENDMENT, IN THAT (A) THERE WAS NO EVIDENCE
OF PHYSICAL WASTE IN THE GUYMON-HUGOTON FIELD AND THE PRICE ORDER
CANNOT BE REASONABLY RELATED TO THE PREVENTION OF WASTE, (B) THE
STATUTES CONTAIN NO ADEQUATE STANDARDS GOVERNING THE COMMISSION'S PRICE
FIXING POWERS, (C) THE ORDERS ARE TOO VAGUE, (D) THE PROCEEDINGS LACKED
PROCEDURAL DUE PROCESS, AND (E) THE SPECIFIC ORDER DISCRIMINATES
AGAINST CITIES SERVICE, AND THE GENERAL ORDER, APPLYING ONLY TO THE
GUYMON-HUGOTON FIELD, DISCRIMINATES AGAINST THOSE PRODUCING OR
PURCHASING IN THAT FIELD; (4) THAT THE ORDERS VIOLATE THE COMMERCE
CLAUSE, ART. I, SEC. 8, IN THAT THEY CAST AN UNDUE BURDEN ON, AND
DISCRIMINATE AGAINST, INTERSTATE COMMERCE. 

THE SUPREME COURT OF OKLAHOMA REJECTED THESE CLAIMS.  IT FOUND THAT
THE OKLAHOMA STATUTES FULLY EMPOWERED THE COMMISSION TO TAKE THE ACTION
WHICH IT TOOK.  THE OKLAHOMA LEGISLATURE, AS EARLY AS 1913, DECLARED
THAT GAS UNDERLYING LAND IS THE PROPERTY OF THE LAND OWNER OR HIS
LESSEE; THAT GAS MAY BE TAKEN FROM A COMMON SOURCE OF SUPPLY
PROPORTIONATELY TO THE NATURAL FLOW OF THE WELL AND THAT THE DRILLING
OF A WELL BY AN OWNER OR LESSEE SHALL BE REGARDED AS REDUCING TO
POSSESSION HIS SHARE OF THE GAS; THAT ANY PERSON TAKING GAS FROM THE
FIELD, EXCEPT IN CASES NOT HERE PERTINENT, SHALL TAKE RATABLY FROM EACH
OWNER IN PROPORTION TO HIS INTEREST AND UPON SUCH TERMS AS MAY BE
AGREED UPON; THAT IF NO AGREEMENT CAN BE REACHED THEN THE PRICE AND
TERMS SHALL BE SUCH AS MAY BE FIXED BY THE CORPORATION COMMISSION AFTER
NOTICE AND HEARING.  52 OKLA. STATS. SECS. 23-25, 231-233(1941).  THESE
RATABLY FROM PEERLESS AND AT A SPECIFIC PRICE.  IN 1915, OKLAHOMA
STRENGTHENED ITS GAS CONSERVATION LAWS BY AUTHORIZING REGULATION OF
PRODUCTION OF GAS FROM A COMMON SOURCE WHEN PRODUCTION IS IN EXCESS OF
MARKET DEMAND.  52 OKLA. STATS. SECS. 239-240(1941).  THE COMMISSION
WAS AUTHORIZED TO LIMIT THE GAS TAKEN BY ANY PRODUCER TO "SUCH
PROPORTION OF THE NATURAL GAS THAT MAY BE MARKETED WITHOUT WASTE" AS
THE NATURAL FLOW OF GAS AT THE WELLS OF SUCH PRODUCER BEARS TO THE
TOTAL NATURAL FLOW OF THE COMMON SOURCE.  IN AUTHORIZING SUCH
REGULATION, THE LEGISLATURE DECLARED THAT IT ACTED "SO AS TO PREVENT
WASTE, PROTECT THE INTERESTS OF THE PUBLIC, AND OF ALL THOSE HAVING A
RIGHT TO PRODUCE THEREFROM, AND TO PREVENT UNREASONABLE DISCRIMINATION
IN FAVOR OF ANY ONE SUCH COMMON SOURCE OF SUPPLY AS AGAINST ANOTHER." 
THE OKLAHOMA SUPREME COURT CONSTRUED THE 1915 ACT TO PERMIT THE GENERAL
ORDER SETTING A MINIMUM PRICE IN THE FIELD.  IT FURTHER RULED THAT
ECONOMIC WASTE WAS WITHIN THE CONTEMPLATION OF THE STATUTE.  FINALLY,
WITH REGARD TO STATE QUESTIONS, IT HELD THAT THE ORDERS DID NOT VIOLATE
THE OKLAHOMA CONSTITUTION. 

THE OKLAHOMA COURT ALSO CONCLUDED THAT THE STATUTES SO CONSTRUED AND
THE ORDERS MADE THEREUNDER DO NOT VIOLATE THE FEDERAL CONSTITUTION ON
THE GROUNDS RELIED ON BY CITIES SERVICE.  WE AGREE. 

                            II. 

THE DUE PROCESS AND EQUAL PROTECTION ISSUES RAISED BY APPELLANT ARE
VIRTUALLY WITHOUT SUBSTANCE.  IT IS NOW UNDENIABLE THAT A STATE MAY
ADOPT REASONABLE REGULATIONS TO PREVENT ECONOMIC AND PHYSICAL WASTE OF
NATURAL GAS.  THIS COURT HAS UPHELD NUMEROUS KINDS OF STATE LEGISLATION
DESIGNED TO CURB WASTE OF NATURAL RESOURCES AND TO PROTECT THE
CORRELATIVE RIGHTS OF OWNERS THROUGH RATABLE TAKING, CHAMPLIN REFINING
CO. V. CORPORATION COMMISSION, 286 U.S. 210(1932), OR TO PROTECT THE
ECONOMY OF THE STATE.  RAILROAD COMMISSION V. ROWAN & NICHOLS OIL CO.,
310 U.S. 573(1940).  THESE ENDS HAVE BEEN HELD TO JUSTIFY CONTROL OVER
PRODUCTION EVEN THOUGH THE USES TO WHICH PROPERTY MAY PROFITABLY BE PUT
ARE RESTRICTED.  WALLS V. MIDLAND CARBON CO., 254 U.S. 300(1920). 

LIKE ANY OTHER REGULATION, A PRICE-FIXING ORDER IS LAWFUL IF
SUBSTANTIALLY RELATED TO A LEGITIMATE END SOUGHT TO BE ATTAINED. 
NEBBIA V. NEW YORK, 291 U.S. 502(1934) AND CASES THEREIN CITED.  IN THE
PROCEEDINGS BEFORE THE COMMISSION IN THIS CASE, THERE WAS AMPLE
EVIDENCE TO SUSTAIN ITS FINDING THAT EXISTING LOW FIELD PRICES WERE
RESULTING IN ECONOMIC WASTE AND CONDUCIVE TO PHYSICAL WASTE.  THAT IS A
SUFFICIENT BASIS FOR THE ORDERS ISSUED.  IT IS NO CONCERN OF OURS THAT
OTHER REGULATORY DEVICES MIGHT BE MORE APPROPRIATE, OR THAT LESS
EXTENSIVE MEASURES MIGHT SUFFICE.  SUCH MATTERS ARE THE PROVINCE OF THE
LEGISLATURE AND THE COMMISSION. 

WE HAVE CONSIDERED THE OTHER ARGUMENTS RAISED BY APPELLANT CONCERNING
DUE PROCESS AND EQUAL PROTECTION AND FIND THEM SIMILARLY LACKING IN
MERIT. 

                                 III. 

THE COMMERCE CLAUSE GIVES TO THE CONGRESS A POWER OVER INTERSTATE
COMMERCE WHICH IS BOTH PARAMOUNT AND BROAD IN SCOPE.  BUT DUE REGARD
FOR STATE LEGISLATIVE FUNCTIONS HAS LONG REQUIRED THAT THIS POWER BE
TREATED AS NOT EXCLUSIVE.  COOLEY V. PORT WARDENS, 12 HOW.  299(1851). 
IT IS NOW WELL SETTLED THAT A STATE MAY REGULATE MATTERS OF LOCAL
CONCERN OVER WHICH FEDERAL AUTHORITY HAS NOT BEEN EXERCISED, EVEN
THOUGH THE REGULATION HAS SOME IMPACT ON INTERSTATE COMMERCE.  PARKER
V. BROWN, 317 U.S. 341(1943); MILK CONTROL BOARD V. EISENBERG FARM
PRODUCTS, 306 U.S. 346(1939); SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL
BROS., 303 U.S. 177(1938).  THE ONLY REQUIREMENTS CONSISTENTLY
RECOGNIZED HAVE BEEN THAT THE REGULATION NOT DISCRIMINATE AGAINST OR
PLACE AN EMBARGO ON INTERSTATE COMMERCE, THAT IT SAFEGUARD AN OBVIOUS
STATE INTEREST, AND THAT THE LOCAL INTEREST AT STAKE OUTWEIGH WHATEVER
NATIONAL INTEREST THERE MIGHT BE IN THE PREVENTION OF STATE
RESTRICTIONS.  NOR SHOULD WE LIGHTLY TRANSLATE THE QUIESCENCE OF
FEDERAL POWER INTO AN AFFIRMATION THAT THE NATIONAL INTEREST LIES IN
COMPLETE FREEDOM FROM REGULATION.  SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., SUPRA.  COMPARE LEISY V. HARDIN, 135 U.S. 100(1890),
DECIDED PRIOR TO THE WILSON ACT, 26 STAT. 313, WITH IN RE RAHRER, 140
U.S. 545(1891), DECIDED THEREAFTER. 

THAT A LEGITIMATE LOCAL INTEREST IS AT STAKE IN THIS CASE IS CLEAR. 
A STATE IS JUSTIFIABLY CONCERNED WITH PREVENTING RAPID AND UNECONOMIC
DISSIPATION OF ONE OF ITS CHIEF NATURAL RESOURCES.  THE CONTENTION
URGED BY APPELLANT THAT A GROUP OF PRIVATE PRODUCERS AND ROYALTY OWNERS
DERIVE SUBSTANTIAL GAIN FROM THE REGULATIONS DOES NOT CONTRADICT THE
ESTABLISHED CONNECTION BETWEEN THE ORDERS AND A STATE-WIDE INTEREST IN
CONSERVATION.  CF. THOMPSON V. CONSOLIDATED GAS CORP., 300 U.S.
55(1937).    WE RECOGNIZE THAT THERE IS ALSO A STRONG NATIONAL INTEREST
IN NATURAL GAS PROBLEMS.  BUT IT IS FAR FROM CLEAR THAT ON BALANCE SUCH
INTEREST IS HARMED BY THE STATE REGULATIONS UNDER ATTACK HERE. 
PRESUMABLY ALL CONSUMERS, DOMESTIC AND INDUSTRIAL ALIKE, WANT TO OBTAIN
NATURAL GAS AS CHEAPLY AS POSSIBLE.  ON THE OTHER HAND, GROUPS
CONNECTED WITH THE PRODUCTION AND TRANSPORTATION OF COMPETING FUELS
COMPLAIN OF THE COMPETITION OF CHEAP GAS.  MOREOVER, THE WELLHEAD PRICE
OF GAS IS BUT A FRACTION OF THE PRICE PAID BY DOMESTIC CONSUMERS AT THE
BURNER-TIP, SO THAT THE FIELD PRICE AS HEREIN SET MAY HAVE LITTLE OR NO
EFFECT ON THE DOMESTIC DELIVERED PRICE.  SOME INDUSTRIAL CONSUMERS, WHO
GET BARGAIN RATES ON GAS FOR "INFERIOR" USES, MAY SUFFER.  BUT STRONG
ARGUMENTS HAVE BEEN MADE THAT THE NATIONAL INTEREST LIES IN PRESERVING
THIS LIMITED RESOURCE FOR DOMESTIC AND INDUSTRIAL USES FOR WHICH
NATURAL GAS HAS NO COMPLETELY SATISFACTORY SUBSTITUTE.  SEE GENERALLY,
FEDERAL POWER COMMISSION, NATURAL GAS INVESTIGATION (1948); FEDERAL
POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591, 657
660(1944)(DISSENTING OPINION).  INSOFAR AS CONSERVATION IS CONCERNED,
THE NATIONAL INTEREST AND THE INTEREST OF PRODUCING STATES MAY WELL
TEND TO COINCIDE.  IN ANY EVENT, IN A FIELD OF THIS COMPLEXITY WITH
SUCH DIVERSE INTERESTS INVOLVED, WE CANNOT SAY THAT THERE IS A CLEAR
NATIONAL INTEREST SO HARMED THAT THE STATE PRICE-FIXING ORDERS HERE
EMPLOYED FALL WITHIN THE BAN OF THE COMMERCE CLAUSE.  PARKER V. BROWN,
SUPRA; MILK CONTROL BOARD V. EISENBERG FARM PRODUCTS, SUPRA.  NOR IS IT
FOR US TO CONSIDER WHETHER OKLAHOMA'S UNILATERAL EFFORTS TO CONSERVE
GAS WILL BE FULLY EFFECTIVE.  SEE SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., SUPRA AT 190-191. 

HOOD & SONS V. DU MOND, 336 U.S. 525(1949), IS NOT INCONSISTENT WITH
THIS RESULT.  THE HOOD CASE SPECIFICALLY EXCEPTED FROM CONSIDERATION
THE QUESTION HERE RAISED, WHETHER PRICE-FIXING WAS FORBIDDEN AS AN
UNDUE BURDEN ON INTERSTATE COMMERCE.  MOREOVER, THE COURT CAREFULLY
DISTINGUISHED EISENBERG, WHICH APPROVED PRICE REGULATIONS EVEN THOUGH
APPLIED TO A PRODUCER WHOSE ENTIRE PURCHASES OF MILK WENT DIRECTLY,
WITHOUT PROCESSING, INTO INTERSTATE COMMERCE.  THE VICE IN THE
REGULATION INVALIDATED BY HOOD WAS SOLELY THAT IT DENIED FACILITIES TO
A COMPANY IN INTERSTATE COMMERCE ON THE ARTICULATED GROUND THAT SUCH
FACILITIES WOULD DIVERT MILK SUPPLIES NEEDED BY LOCAL CONSUMERS; IN
OTHER WORDS, THE REGULATION DISCRIMINATED AGAINST INTERSTATE COMMERCE. 
THERE IS NO SUCH PROBLEM HERE.  THE PRICE REGULATION APPLIES TO ALL GAS
TAKEN FROM THE FIELD, WHETHER DESTINED FOR INTERSTATE OR INTRASTATE
CONSUMERS. 

APPELLANT DOES NOT CONTEND THAT THE ORDERS CONFLICT WITH THE FEDERAL
AUTHORITY ASSERTED BY THE NATURAL GAS ACT, 52 STAT. 821(1938), 15
U.S.C. SECS. 717 ET SEQ. (1948).  THE FEDERAL POWER COMMISSION HAS NOT
PARTICIPATED IN THESE PROCEEDINGS.  WHETHER THE GAS ACT AUTHORIZES THE
POWER COMMISSION TO SET FIELD PRICES ON SALES BY INDEPENDENT PRODUCERS,
OR LEAVES THAT FUNCTION TO THE STATES, IS NOT BEFORE THIS COURT. 

WE HOLD THAT ON THIS RECORD THE OKLAHOMA CORPORATION COMMISSION
ISSUED VALID ORDERS, AND THAT THE DECISION OF THE COURT BELOW SHOULD BE
AFFIRMED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE ALLEGED FEDERAL
CONSTITUTIONAL QUESTIONS ARE FRIVOLOUS AND THAT THE APPEAL THEREFORE
SHOULD BE DISMISSED. 
..END :






PHILLIPS PETROLEUM CO. V. OKLAHOMA, 340 U.S. 190 


NO. 73.  ARGUED NOVEMBER 9-10, 1950.  - DECIDED DECEMBER 11, 1950.  -
203 OKLA. 35, 220 P.2D 279, AFFIRMED. 


APPELLANT IS A PRODUCER OF GAS IN AN OKLAHOMA NATURAL GAS FIELD, BUT
DOES NOT PURCHASE FROM OTHER PRODUCERS IN THAT FIELD.  THE GAS WHICH IT
PRODUCES IS TRANSPORTED THROUGH ITS OWN FACILITIES TO TEXAS, WHERE IT
PROCESSES THE GAS, UTILIZES OR SELLS THE BY-PRODUCTS, AND SELLS THE
RESIDUE OF NATURAL GAS TO PIPE-LINE COMPANIES.  HELD:  ORDERS OF THE
OKLAHOMA CORPORATION COMMISSION FIXING A MINIMUM WELLHEAD PRICE ON ALL
GAS TAKEN FROM THE OKLAHOMA FIELD, AS APPLIED TO APPELLANT, ARE NOT
UNREASONABLY VAGUE AND ARE VALID UNDER THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION.  PP. 191-192. 

PHILLIPS PETROLEUM CO. V. OKLAHOMA ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

THE VALIDITY UNDER THE FEDERAL CONSTITUTION OF ORDERS OF THE OKLAHOMA
CORPORATION COMMISSION FIXING A MINIMUM WELLHEAD PRICE FOR GAS TAKEN
FROM AN OKLAHOMA NATURAL-GAS FIELD WAS SUSTAINED BY THE STATE SUPREME
COURT AS APPLIED TO APPELLANT.  203 OKLA. 35, 220 P.2D 279.  ON APPEAL
TO THIS COURT, AFFIRMED, P. 192. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO CITIES SERVICE GAS CO. V. PEERLESS OIL &
GAS CO., 340 U.S. 179, DECIDED THIS DATE.  APPELLANT IS A PRODUCER IN
THE GUYMON-HUGOTON FIELD, OWNING LEASES ON APPROXIMATELY 183,000 ACRES,
BUT UNLIKE CITIES SERVICE IT DOES NOT PURCHASE FROM OTHER PRODUCERS IN
THIS FIELD.  IT HAS ITS OWN GATHERING SYSTEM THROUGH WHICH GAS IS
TRANSPORTED TO A CENTRAL POINT IN HANSFORD COUNTY, TEXAS.  THERE THE
GAS IS PROCESSED FOR THE EXTRACTION OF GASOLINE AND OTHER LIQUID
HYDROCARBONS.  THESE BY-PRODUCTS ARE EITHER UTILIZED OR SOLD, AND THE
RESIDUE OF NATURAL GAS IS SOLD TO PIPE-LINE COMPANIES.  APPELLANT'S
FIRST APPEARANCE BEFORE THE OKLAHOMA CORPORATION COMMISSION IN
CONNECTION WITH THE PEERLESS PROCEEDINGS WAS ON JANUARY 17, 1947, AFTER
THE ENTRY OF THE ORDER SETTING A MINIMUM PRICE ON ALL NATURAL GAS TAKEN
FROM THE GUYMON-HUGOTON FIELD.  PHILLIPS MOVED THAT THE COMMISSION
EITHER VACATE THE ORDER INSOFAR AS APPLICABLE TO IT, OR CLARIFY THE
APPLICATION OF THE ORDER TO GAS NOT ACTUALLY SOLD AT THE WELLHEAD.  ON
FEBRUARY 4, 1947, THE COMMISSION ISSUED ORDER NO. 19702, REFUSING TO
VACATE OR FURTHER CLARIFY ITS GENERAL MINIMUM PRICE ORDER.  THE
COMMISSION CONCLUDED THAT PHILLIPS HAD NO STANDING TO COMPLAIN OF THE
GENERAL ORDER SINCE THE COMPANY WAS CURRENTLY COMPLYING WITH IT BY
REALIZING ON THE AVERAGE, FROM SALE AND UTILIZATION OF BY-PRODUCTS AND
SALE OF GAS, THE MINIMUM PRICE SET. 

ON APPEAL, THE OKLAHOMA SUPREME COURT CONSOLIDATED THE TWO CASES AND
WITH RESPECT TO PHILLIPS STATED: 

"OUR DISCUSSION OF THE CITIES SERVICE APPEAL IS HERE APPLICABLE.  WE
FIND NO BASIS IN THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OF THE
FEDERAL AND STATE CONSTITUTIONS FOR CONDEMNING THE ORDERS APPEALED FROM
IN THEIR APPLICATION TO PHILLIPS."  203 OKLA. 35, 48, 220 P.2D 279,
292(1950).  IT IS APPARENT FROM THIS OPINION THAT THE COURT BELOW TOOK
JURISDICTION AND PASSED UPON THE CONSTITUTIONAL ISSUES RAISED.  WE
ASSUMED THEREFORE THAT THE COURT, NOTING THE EVIDENCE OF INJURY
CONTAINED IN THE RECORD, FOUND NO TECHNICAL DEFECTS IN THE PLEADINGS
BEFORE THE COMMISSION WHICH WOULD DEPRIVE PHILLIPS OF STANDING TO
APPEAL.  WE NOTED PROBABLE JURISDICTION OF THE APPEAL TO THIS COURT IN
ORDER TO SECURE A COMPLETE PICTURE OF THE ISSUES AT STAKE. 

APPELLANT DOES NOT ARGUE THAT THE ORDERS VIOLATE THE COMMERCE
CLAUSE.  IN OTHER RESPECTS, THE APPEAL PRESENTS ONLY MINOR VARIATIONS
OF THE ISSUES RAISED BY CITIES SERVICE.  PHILLIPS ARGUES THAT IT IS NOT
A PURCHASER BUT MERELY A PRODUCER; THAT UNLIKE THE SITUATION IN CITIES
SERVICE, THE ORDER AS APPLIED TO IT LACKS ANY CONNECTION WITH
CORRELATIVE RIGHTS, THE INTEREST OF THE PUBLIC, MONOPOLISTIC PRACTICES
OR DISCRIMINATION.  THE DISTINCTION IS WITHOUT A DIFFERENCE:  THE
CONNECTION BETWEEN REALIZED PRICE AND CONSERVATION APPLIES TO ALL
PRODUCTION IN THE FIELD, WHETHER OWNERS PURCHASE FROM OTHERS OR NOT,
AND WHETHER THEY OWN PIPE LINES OR NOT.  IN A FIELD WHICH CONSTITUTES A
COMMON RESERVOIR OF GAS, THE COMMISSION MUST BE ABLE TO REGULATE THE
OPERATIONS OF ALL PRODUCERS OR THERE IS LITTLE POINT IN REGULATING
ANY. 

PHILLIPS ALSO RELIES HEAVILY ON THE CONTENTION THAT THE ORDERS ARE
UNREASONABLY VAGUE.  IN SUBSTANCE, THIS ARGUMENT IS NOTHING MORE THAN
THAT THE DETERMINATION BY AN INTEGRATED COMPANY OF PROCEEDS REALIZED
FROM GAS AT THE WELLHEAD INVOLVES COMPLICATED PROBLEMS IN COST
ACCOUNTING.  THESE PROBLEMS ARE COMMON TO A HOST OF VALID REGULATIONS. 
THERE IS NOTHING TO INDICATE THAT PHILLIPS WILL BE PENALIZED FOR
REASONABLE AND GOOD FAITH EFFORTS TO SOLVE THEM.  AFFIRMED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE ALLEGED FEDERAL
CONSTITUTIONAL QUESTIONS ARE FRIVOLOUS AND THAT THE APPEAL THEREFORE
SHOULD BE DISMISSED. 
..END :





ACKERMANN V. UNITED STATES, 340 U.S. 193 


ARGUED OCTOBER 19, 1950.  - DECIDED DECEMBER 11, 1950.  - 178 F.2D 983,
179 F.2D 236, AFFIRMED. 


IN PROCEEDINGS AGAINST PETITIONER, HIS WIFE AND A RELATIVE, THE
DISTRICT COURT IN 1943 ENTERED JUDGMENTS CANCELING THEIR CERTIFICATES
OF NATURALIZATION ON GROUNDS OF FRAUD.  PETITIONER AND HIS WIFE DID NOT
APPEAL; BUT THE RELATIVE APPEALED AND THE JUDGMENT AGAINST HIM WAS
REVERSED.  MORE THAN FOUR YEARS AFTER RENDITION OF THE JUDGMENT AGAINST
PETITIONER, HE FILED IN THE DISTRICT COURT A MOTION TO SET ASIDE THE
DENATURALIZATION JUDGMENT UNDER AMENDED RULE 60(B) OF THE FEDERAL RULES
OF CIVIL PROCEDURE.  HE ALLEGED THAT THE DENATURALIZATION JUDGMENT WAS
ERRONEOUS; THAT HE DID NOT APPEAL BECAUSE HIS ATTORNEY ADVISED HIM THAT
HE WOULD HAVE TO SELL HIS HOME TO PAY COSTS; AND THAT A FEDERAL
OFFICER, IN WHOSE CUSTODY HE AND HIS WIFE THEN WERE AND IN WHOM HE HAD
CONFIDENCE, HAD TOLD HIM "TO HANG ON TO THEIR HOME" AND HE WOULD BE
RELEASED AT THE END OF THE WAR.  HELD:  THE DISTRICT COURT PROPERLY
DENIED THE MOTION.  PP. 194-202. 

1.  RELIEF ON THE GROUND OF "EXCUSABLE NEGLECT" WAS NOT AVAILABLE TO
PETITIONER UNDER RULE 60(B)(1), SINCE BY THE RULE'S TERMS A MOTION FOR
RELIEF ON THIS GROUND MUST BE MADE NOT MORE THAN ONE YEAR AFTER THE
JUDGMENT IS ENTERED, WHEREAS IN THIS CASE THE JUDGMENT WAS ENTERED MORE
THAN FOUR YEARS PREVIOUSLY.  P. 197. 

2.  THE ALLEGATIONS OF THE MOTION DID NOT BRING PETITIONER WITHIN RULE
60(B)(6), WHICH APPLIES IF "ANY OTHER REASON JUSTIFYING RELIEF"
EXISTS.  PP. 197-199. 

3.  KLAPPROTT V. UNITED STATES, 335 U.S. 601, DISTINGUISHED.  PP. 199
202. 

ACKERMANN V. UNITED STATES. 

NO. 35.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT* . 

*TOGETHER WITH NO. 36, ACKERMANN V. UNITED STATES, ALSO ON CERTIORARI
TO THE SAME COURT. 

THE DISTRICT COURT DENIED PETITIONERS' MOTIONS TO SET ASIDE JUDGMENTS
CANCELING THEIR CERTIFICATES OF NATURALIZATION.  THE COURT OF APPEALS
AFFIRMED.  178 F.2D 983, 179 F.2D 236.  THIS COURT GRANTED CERTIORARI. 
339 U.S. 962.  AFFIRMED, P. 202. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

PETITIONER HANS ACKERMANN FILED A MOTION IN THE DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS TO SET ASIDE A JUDGMENT ENTERED DECEMBER
7, 1943, IN THAT COURT CANCELLING HIS CERTIFICATE OF NATURALIZATION. 
THE MOTION WAS FILED MARCH 25, 1948, PURSUANT TO AMENDED RULE 60(B) OF
THE FEDERAL RULES OF CIVIL PROCEDURE WHICH BECAME EFFECTIVE MARCH 19,
1948* .  THE UNITED STATES FILED A MOTION TO DISMISS PETITIONER'S
MOTION.  THE DISTRICT COURT DENIED PETITIONER'S MOTION AND THE COURT OF
APPEALS AFFIRMED.  178 F.2D 983.  WE GRANTED CERTIORARI.  339 U.S.
962. 

*"RELIEF FROM JUDGMENT OR ORDER. 

     .      .         .         .         . 

"(B)  MISTAKES; INADVERTENCE; EXCUSABLE NEGLECT; NEWLY DISCOVERED
EVIDENCE; FRAUD, ETC.  ON MOTION AND UPON SUCH TERMS AS ARE JUST, THE
COURT MAY RELIEVE A PARTY OR HIS LEGAL REPRESENTATIVE FROM A FINAL
JUDGMENT, ORDER, OR PROCEEDING FOR THE FOLLOWING REASONS:  (1) MISTAKE,
INADVERTENCE, SURPRISE, OR EXCUSABLE NEGLECT; (2) NEWLY DISCOVERED
EVIDENCE WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME
TO MOVE FOR A NEW TRIAL UNDER RULE 59(B); (3) FRAUD (WHETHER HERETOFORE
DENOMINATED INTRINSIC OR EXTRINSIC), MISREPRESENTATION, OR OTHER
MISCONDUCT OF AN ADVERSE PARTY; (4) THE JUDGMENT IS VOID; (5) THE
JUDGMENT HAS BEEN SATISFIED, RELEASED, OR DISCHARGED, OR A PRIOR
JUDGMENT UPON WHICH IT IS BASED HAS BEEN REVERSED OR OTHERWISE VACATED,
OR IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE
APPLICATION; OR (6) ANY OTHER REASON JUSTIFYING RELIEF FROM THE
OPERATION OF THE JUDGMENT.  THE MOTION SHALL BE MADE WITHIN A
REASONABLE TIME, AND FOR REASONS (1), (2), AND (3) NOT MORE THAN ONE
YEAR AFTER THE JUDGMENT, ORDER, OR PROCEEDING WAS ENTERED OR TAKEN.  A
MOTION UNDER THIS SUBDIVISION (B) DOES NOT AFFECT THE FINALITY OF A
JUDGMENT OR SUSPEND ITS OPERATION.  THIS RULE DOES NOT LIMIT THE POWER
OF A COURT TO ENTERTAIN AN INDEPENDENT ACTION TO RELIEVE A PARTY FROM A
JUDGMENT, ORDER, OR PROCEEDING, OR TO GRANT RELIEF TO A DEFENDANT NOT
ACTUALLY PERSONALLY NOTIFIED AS PROVIDED IN SECTION 57 OF THE JUDICIAL
CODE, U.S.C., TITLE 28, SEC. 118, OR TO SET ASIDE A JUDGMENT FOR FRAUD
UPON THE COURT.  WRITS OF CORAM NOBIS, CORAM VOBIS, AUDITA QUERELA, AND
BILLS OF REVIEW AND BILLS IN THE NATURE OF A BILL OF REVIEW, ARE
ABOLISHED, AND THE PROCEDURE FOR OBTAINING ANY RELIEF FROM A JUDGMENT
SHALL BE BY MOTION AS PRESCRIBED IN THESE RULES OR BY AN INDEPENDENT
ACTION."  FED. RULES CIV. PROC., 60(B). 

THE QUESTION IS WHETHER THE DISTRICT COURT ERRED IN DENYING THE
MOTION FOR RELIEF UNDER RULE 60(B). 

PETITIONER AND HIS WIFE FRIEDA WERE NATIVES OF GERMANY.  THEY WERE
NATURALIZED IN 1938.  THEY RESIDED, AS NOW, AT TAYLOR, TEXAS, WHERE
PETITIONER AND MAX KEILBAR OWNED AND OPERATED A GERMAN LANGUAGE
NEWSPAPER.  FRIEDA ACKERMANN WROTE FOR THE PAPER.  SHE WAS A SISTER OF
KEILBAR, WHO WAS ALSO A NATIVE OF GERMANY AND WHO HAD BEEN NATURALIZED
IN 1933. 

IN 1942 COMPLAINTS WERE FILED AGAINST ALL THREE TO CANCEL THEIR
NATURALIZATION ON GROUNDS OF FRAUD.  PETITIONER AND KEILBAR WERE
REPRESENTED BY COUNSEL AND ANSWERED THE COMPLAINTS.  AFTER AN ORDER OF
CONSOLIDATION, TRIAL OF THE THREE CASES BEGAN NOVEMBER 1, 1943, AND
SEPARATE JUDGMENTS WERE ENTERED DECEMBER 7, 1943, CANCELLING AND
SETTING ASIDE THE ORDERS ADMITTING THEM TO CITIZENSHIP.  KEILBAR
APPEALED TO THE COURT OF APPEALS, AND BY STIPULATION WITH THE UNITED
STATES ATTORNEY HIS CASE IN THAT COURT WAS REVERSED, AND THE COMPLAINT
AGAINST HIM WAS ORDERED DISMISSED.  THE ACKERMANNS DID NOT APPEAL. 

PETITIONER IN HIS MOTION HERE UNDER CONSIDERATION ALLEGES THAT HIS
"FAILURE TO APPEAL FROM SAID JUDGMENT IS EXCUSABLE" FOR THE REASON THAT
HE HAD NO MONEY OR PROPERTY OTHER THAN HIS HOME IN TAYLOR, TEXAS, OWNED
BY HIM AND HIS WIFE AND WORTH $2,500, "AND THE COSTS OF TRANSCRIBING
THE EVIDENCE AND PRINTING THE RECORD AND BRIEF ON APPEAL WERE ESTIMATED
AT NOT LESS THAN $5,000.00."  ON DECEMBER 11, 1943, PETITIONER WAS
DETAINED IN AN ALIEN DETENTION STATION AT SEAGOVILLE, TEXAS.  BEFORE
TIME FOR APPEAL HAD EXPIRED, PETITIONER WAS ADVISED BY HIS ATTORNEY
THAT HE AND HIS WIFE COULD NOT APPEAL ON AFFIDAVITS OF INABILITY TO PAY
COSTS UNTIL THEY HAD "APPROPRIATED SAID HOME TO THE PAYMENT OF SUCH
COSTS TO THE FULL EXTENT OF THE PROCEEDS OF A SALE THEREOF"; THAT THIS
INFORMATION DISTRESSED THEM, AND THEY SOUGHT ADVICE FROM W. F. KELLEY,
"ASSISTANT COMMISSIONER FOR ALIEN CONTROL, IMMIGRATION AND
NATURALIZATION DEPARTMENT," IN WHOSE CUSTODY PETITIONER AND HIS WIFE
WERE BEING HELD, "AND HE BEING A PERSON IN WHOM THEY HAD GREAT
CONFIDENCE"; THAT KELLEY ON BEING INFORMED OF THEIR FINANCIAL CONDITION
AND THE ADVICE OF THEIR ATTORNEY THAT IT WOULD BE NECESSARY FOR THEM TO
DISPOSE OF THEIR HOME IN ORDER TO APPEAL, ADVISED THEM IN SUBSTANCE TO
"HANG ON TO THEIR HOME," AND TOLD THEM FURTHER THAT THEY HAD LOST THEIR
AMERICAN CITIZENSHIP AND WERE STATELESS, AND THAT THEY WOULD BE
RELEASED AT THE END OF THE WAR; THAT RELYING UPON KELLEY'S ADVICE, THEY
REFRAINED FROM APPEALING FROM SAID JUDGMENTS; THAT ON APRIL 29, 1944,
AFTER TIME FOR APPEAL HAD EXPIRED, THEY WERE INTERNED, AND ON JANUARY
25, 1946, THE ATTORNEY GENERAL ORDERED THEM TO DEPART WITHIN THIRTY
DAYS OR BE DEPORTED.  THEY DID NOT DEPART, AND THEY HAVE NOT BEEN
DEPORTED, ALTHOUGH THE ORDERS OF DEPORTATION ARE STILL OUTSTANDING. 
PETITIONER FURTHER ALLEGED THAT HE WOULD SHOW THAT THE JUDGMENT OF
DECEMBER 7, 1943, WAS UNLAWFUL AND ERRONEOUS BY PRODUCING THE RECORD IN
THE KEILBAR CASE. 

THE DISTRICT COURT ON SEPTEMBER 28, 1948, DENIED PETITIONER'S MOTION
TO VACATE THE JUDGMENT OF DENATURALIZATION, THE COURT STATING IN THE
ORDER THAT "THERE IS NO MERIT TO SAID MOTION." 

IT WILL BE NOTED THAT PETITIONER ALLEGED IN HIS MOTION THAT HIS
FAILURE TO APPEAL WAS EXCUSABLE.  A MOTION FOR RELIEF BECAUSE OF
EXCUSABLE NEGLECT AS PROVIDED IN RULE 60(B)(1) MUST, BY THE RULE'S
TERMS, BE MADE NOT MORE THAN ONE YEAR AFTER THE JUDGMENT WAS ENTERED. 
THE JUDGMENT HERE SOUGHT TO BE RELIEVED FROM WAS MORE THAN FOUR YEARS
OLD.  IT IS IMMEDIATELY APPARENT THAT NO RELIEF ON ACCOUNT OF
"EXCUSABLE NEGLECT" WAS AVAILABLE TO THIS PETITIONER ON THE MOTION
UNDER CONSIDERATION. 

BUT PETITIONER SEEKS TO BRING HIMSELF WITHIN RULE 60(B)(6), WHICH
APPLIES IF "ANY OTHER REASON JUSTIFYING RELIEF" IS PRESENT, AS
CONSTRUED AND APPLIED IN KLAPPROTT V. UNITED STATES, 335 U.S. 601.  THE
CIRCUMSTANCES ALLEGED IN THE MOTION WHICH PETITIONER ASSERTS BRING HIM
WITHIN RULE 60(B)(6) ARE THAT THE DENATURALIZATION JUDGMENT WAS
ERRONEOUS; THAT HE DID NOT APPEAL AND RAISE THAT QUESTION BECAUSE HIS
ATTORNEY ADVISED HIM HE WOULD HAVE TO SELL HIS HOME TO PAY COSTS, WHILE
KELLEY, THE ALIEN CONTROL OFFICER, IN WHOM HE ALLEGES HE HAD CONFIDENCE
AND UPON WHOSE ADVICE HE RELIED, TOLD HIM "TO HANG ON TO THEIR HOME"
AND THAT HE WOULD BE RELEASED AT THE END OF THE WAR; AND THAT THESE
CIRCUMSTANCES JUSTIFY FAILURE TO APPEAL THE DENATURALIZATION JUDGMENT. 

WE CANNOT AGREE THAT PETITIONER HAS ALLEGED CIRCUMSTANCES SHOWING
THAT HIS FAILURE TO APPEAL WAS JUSTIFIABLE.  IT IS NOT ENOUGH FOR
PETITIONER TO ALLEGE THAT HE HAD CONFIDENCE IN KELLEY.  ON THE
ALLEGATIONS OF THE MOTION BEFORE US, KELLEY WAS A STRANGER TO
PETITIONER.  IN THAT STATE OF THE PLEADINGS THERE ARE TWO REASONS WHY
PETITIONER CANNOT BE HEARD TO SAY HIS NEGLECT TO APPEAL BRINGS HIM
WITHIN THE RULE.  FIRST, ANYTHING SAID BY KELLEY COULD NOT BE USED TO
RELIEVE PETITIONER OF HIS DUTY TO TAKE LEGAL STEPS TO PROTECT HIS
INTEREST IN LITIGATION IN WHICH THE UNITED STATES WAS A PARTY ADVERSE
TO HIM.  MUNRO V. UNITED STATES, 303 U.S. 36; BURNHAM CHEMICAL CO. V.
KRUG, 81 F.SUPP.  911, 913, AFF'D PER CURIAM SUB NOM.  BURNHAM CHEMICAL
CO. V. CHAPMAN, 86 U.S. APP. D.C. 412, 181 F.2D 288.  SECONDLY,
PETITIONER HAD NO RIGHT TO REPOSE CONFIDENCE IN KELLEY, A STRANGER. 
THERE IS NO ALLEGATION OF ANY FACT OR CIRCUMSTANCE WHICH SHOWS THAT
KELLEY HAD ANY UNDUE INFLUENCE OVER PETITIONER OR PRACTICED ANY FRAUD,
DECEIT, MISREPRESENTATION, OR DURESS UPON HIM.  THERE ARE NO
ALLEGATIONS OF PRIVITY OR ANY FIDUCIARY RELATIONS EXISTING BETWEEN
THEM.  INDEED, THE ALLEGATIONS OF THE MOTION ALL SHOW THE CONTRARY. 
HOWEVER, PETITIONER HAD A CONFIDENTIAL ADVISER IN HIS OWN COUNSEL. 
INSTEAD OF RELYING UPON THAT CONFIDENTIAL ADVISER, HE FREELY ACCEPTED
THE ADVICE OF A STRANGER, A SOURCE UPON WHICH HE HAD NO RIGHT TO RELY. 
PETITIONER MADE A CONSIDERED CHOICE NOT TO APPEAL, APPARENTLY BECAUSE
HE DID NOT FEEL THAT AN APPEAL WOULD PROVE TO BE WORTH WHAT HE THOUGHT
WAS A REQUIRED SACRIFICE OF HIS HOME.  HIS CHOICE WAS A RISK, BUT
CALCULATED AND DELIBERATE AND SUCH AS FOLLOWS A FREE CHOICE. 
PETITIONER CANNOT BE RELIEVED OF SUCH A CHOICE BECAUSE HINDSIGHT SEEMS
TO INDICATE TO HIM THAT HIS DECISION NOT TO APPEAL WAS PROBABLY WRONG,
CONSIDERING THE OUTCOME OF THE KEILBAR CASE.  THERE MUST BE AN END TO
LITIGATION SOMEDAY, AND FREE, CALCULATED, DELIBERATE CHOICES ARE NOT TO
BE RELIEVED FROM. 

AS FURTHER EVIDENCE OF THE INADEQUACY OF PETITIONER'S MOTION TO BRING
HIMSELF WITHIN ANY DIVISION OF RULE 60(B) WHICH WOULD EXCUSE HIM FROM
NOT HAVING TAKEN AN APPEAL, WE CALL ATTENTION TO THE FACT THAT KEILBAR
GOT THE RECORD BEFORE THE COURT OF APPEALS, AND IT CONTAINED ALL THE
EVIDENCE THAT WAS INTRODUCED AS TO PETITIONER AND HIS WIFE, WHO WERE
TRIED TOGETHER WITH KEILBAR.  THE ACKERMANNS AND KEILBAR WERE RELATED,
YET NO EFFORT WAS MADE TO GET INTO THE COURT OF APPEALS AND USE THE
SAME RECORD AS TO THE EVIDENCE THAT KEILBAR USED.  IT CERTAINLY WOULD
NOT HAVE TAKEN FIVE THOUSAND DOLLARS OR ONE-TENTH THEREOF FOR
PETITIONER AND HIS WIFE TO HAVE SUPPLEMENTED THE KEILBAR RECORD WITH
THAT PERTAINING TO THEMSELVES AND TO PREPARE A BRIEF, EVEN IF ALL OF IT
WERE PRINTED.  WE ARE FURTHER AWARE OF THE PRACTICE OF THE COURTS OF
APPEALS PERMITTING LITIGANTS WHO ARE POOR BUT NOT PAUPERS TO FILE
TYPEWRITTEN RECORDS AND BRIEFS AT A VERY SMALL COST TO THEM.  WITH THE
SAME COUNSEL REPRESENTING PETITIONER AS REPRESENTED HIS KINSMAN
KEILBAR, AND WITH FRIEDA ACKERMANN HAVING FUNDS SUFFICIENT TO EMPLOY
SEPARATE COUNSEL, FAILURE TO APPEAL BECAUSE OF THE FEAR OF LOSING HIS
HOME IN DEFRAYING THE EXPENSES OF THE BRIEF AND RECORD, MAKES IT
FURTHER EVIDENT THAT RULE 60(B) HAS NO APPLICATION TO PETITIONER IN
THIS SETTING. 

THE KLAPPROTT CASE WAS A CASE OF EXTRAORDINARY CIRCUMSTANCES.  MR.
JUSTICE BLACK STATED IN THE FOLLOWING WORDS WHY THE ALLEGATIONS IN THE
KLAPPROTT CASE, THERE TAKEN AS TRUE, BROUGHT IT WITHIN RULE 60(B)(6): 

"BUT PETITIONER'S ALLEGATIONS SET UP AN EXTRAORDINARY SITUATION WHICH
CANNOT FAIRLY OR LOGICALLY BE CLASSIFIED AS MERE 'NEGLECT' ON HIS
PART.  THE UNDENIED FACTS SET OUT IN THE PETITION REVEAL FAR MORE THAN
A FAILURE TO DEFEND THE DENATURALIZATION CHARGES DUE TO INADVERTENCE,
INDIFFERENCE, OR CARELESS DISREGARD OF CONSEQUENCES.  FOR BEFORE, AT
THE TIME, AND AFTER THE DEFAULT JUDGMENT WAS ENTERED, PETITIONER WAS
HELD IN JAIL IN NEW YORK, MICHIGAN, AND THE DISTRICT OF COLUMBIA BY THE
UNITED STATES, HIS ADVERSARY IN THE DENATURALIZATION PROCEEDINGS. 
WITHOUT FUNDS TO HIRE A LAWYER, PETITIONER WAS DEFENDED BY APPOINTED
COUNSEL IN THE CRIMINAL CASES.  THUS PETITIONER'S PRAYER TO SET ASIDE
THE DEFAULT JUDGMENT DID NOT REST ON MERE ALLEGATIONS OF 'EXCUSABLE
NEGLECT.'  THE FOREGOING ALLEGATIONS AND OTHERS IN THE PETITION TEND TO
SUPPORT PETITIONER'S ARGUMENT THAT HE WAS DEPRIVED OF ANY REASONABLE
OPPORTUNITY TO MAKE A DEFENSE TO THE CRIMINAL CHARGES INSTIGATED BY
OFFICERS OF THE VERY UNITED STATES AGENCY WHICH SUPPLIED THE SECONDHAND
INFORMATION UPON WHICH HIS CITIZENSHIP WAS TAKEN AWAY FROM HIM IN HIS
ABSENCE.  THE BASIS OF HIS PETITION WAS NOT THAT HE HAD NEGLECTED TO
ACT IN HIS OWN DEFENSE, BUT THAT IN JAIL AS HE WAS, WEAKENED FROM
ILLNESS, WITHOUT A LAWYER IN THE DENATURALIZATION PROCEEDINGS OR FUNDS
TO HIRE ONE, DISTURBED AND FULLY OCCUPIED IN EFFORTS TO PROTECT HIMSELF
AGAINST THE GRAVEST CRIMINAL CHARGES, HE WAS NO MORE ABLE TO DEFEND
HIMSELF IN THE NEW JERSEY COURT THAN HE WOULD HAVE BEEN HAD HE NEVER
RECEIVED NOTICE OF THE CHARGES."  KLAPPROTT V. UNITED STATES, 335 U.S.
601, 613-614. 

BY NO STRETCH OF IMAGINATION CAN THE VOLUNTARY, DELIBERATE, FREE,
UNTRAMMELED CHOICE OF PETITIONER NOT TO APPEAL COMPARE WITH THE
KLAPPROTT SITUATION.  MR. JUSTICE BLACK SET FORTH IN ORDER THE
EXTRAORDINARY CIRCUMSTANCES ALLEGED BY KLAPPROTT.  WE PARAPHRASE THEM
AND GIVE THE COMPARABLE SITUATION OF ACKERMANN. 

IN THE SPRING OF 1942 KLAPPROTT WAS ILL, AND THE ILLNESS LEFT HIM
FINANCIALLY POOR AND UNABLE TO WORK.  ON MAY 12, 1942, PROCEEDINGS WERE
COMMENCED IN A NEW JERSEY DISTRICT COURT TO CANCEL HIS CITIZENSHIP.  AS
FOR ACKERMANN, WHEN HE WAS SUED HE WAS WELL, AND HAD A HOME WORTH
$2,500, ONE-HALF INTEREST IN A NEWSPAPER, AND THE MEANS TO EMPLOY
COUNSEL.    WHEN COMPLAINT WAS SERVED UPON KLAPPROTT, HE HAD NO MONEY
TO HIRE A LAWYER, AND HE WROTE AN ANSWER TO THE COMPLAINT FILED AGAINST
HIM AND A LETTER TO THE AMERICAN CIVIL LIBERTIES UNION ASKING IT TO
REPRESENT HIM WITHOUT FEE.  ACKERMANN HAD THE MEANS TO HIRE AND DID
HIRE ABLE COUNSEL OF HIS OWN CHOICE WHO PREPARED AND FILED AN ANSWER
FOR HIM. 

IN LESS THAN TWO MONTHS AFTER THE COMPLAINT WAS SERVED ON THE
PENNILESS, ILL KLAPPROTT, HE WAS ARRESTED FOR CONSPIRACY TO VIOLATE THE
SELECTIVE SERVICE ACT AND TAKEN TO NEW YORK AND JAILED IN DEFAULT OF
BOND.  HIS LETTER TO THE AMERICAN CIVIL LIBERTIES UNION WAS TAKEN BY
THE FEDERAL BUREAU OF INVESTIGATION BEFORE TIME FOR HIM TO ANSWER HAD
EXPIRED, AND WAS NOT MAILED BY THAT BUREAU.  ACKERMANN WAS NEVER
INDICTED OR IN JAIL FROM THE TIME COMPLAINT WAS FILED AGAINST HIM UNTIL
AFTER JUDGMENT, DURING ALL OF WHICH TIME HE HAD THE BENEFIT OF COUNSEL
AND FREEDOM OF MOVEMENT AND ACTION. 

WITHIN TEN DAYS AFTER HIS ARREST, KLAPPROTT WAS DEFAULTED IN THE
CITIZENSHIP PROCEEDINGS IN NEW JERSEY.  HE WAS STILL IN JAIL IN NEW
YORK.  NO EVIDENCE WAS OFFERED TO PROVE THE COMPLAINT IN THE
DENATURALIZATION PROCEEDINGS, WHICH COMPLAINT WAS VERIFIED ON
INFORMATION AND BELIEF ONLY.  IN ACKERMANN'S CASE, NO DEFAULT WAS
ENTERED.  HE APPEARED IN PERSON AND BY COUNSEL AND HAD A TRIAL IN OPEN
COURT WITH ABLE COUNSEL TO DEFEND HIM.  MUCH EVIDENCE WAS INTRODUCED
AND A RECORD WAS MADE OF IT. 

KLAPPROTT WAS CONVICTED IN NEW YORK AND SENT TO A PENITENTIARY IN
MICHIGAN.  HE WAS LATER TRANSFERRED TO THE DISTRICT OF COLUMBIA, WHERE
HE WAS LODGED IN JAIL AND TRIED ON ANOTHER CHARGE, LATER DISMISSED. 
THE NEW YORK CONVICTION WAS REVERSED, BUT HE HAD BEEN IN JAIL FOR ABOUT
TWO YEARS.  HE WAS THEN LODGED AT ELLIS ISLAND FOR DEPORTATION BECAUSE
HIS CITIZENSHIP HAD BEEN CANCELLED IN THE NEW JERSEY PROCEEDINGS WHERE
HE HAD BEEN DEFAULTED.  WHILE AT ELLIS ISLAND, THE MOTION TO RELIEVE
FROM THE DEFAULT JUDGMENT CANCELLING HIS CITIZENSHIP WAS PREPARED AND
FILED, DENIED BY THE DISTRICT COURT AND THE COURT OF APPEALS AND
FINALLY SUSTAINED BY THIS COURT.  ACKERMANN WAS NEVER UNDER CRIMINAL
CHARGES OR DETAINED WHILE THE SUIT FOR CANCELLATION OF HIS CITIZENSHIP
WAS PENDING.  DURING ALL OF THAT TIME HE WAS FREE, WELL, AND ABLE TO
DEFEND HIMSELF, AND IN THAT REGARD HAD ABLE COUNSEL REPRESENTING HIM IN
A TRIAL IN OPEN COURT.  EVEN AFTER THE JUDGMENT CANCELLING HIS
CITIZENSHIP, HE HAD COUNSEL AND FREE ACCESS TO HIM, ALTHOUGH DETAINED
BY THE UNITED STATES GOVERNMENT. 

FROM A COMPARISON OF THE SITUATIONS SHOWN BY THE ALLEGATIONS OF
KLAPPROTT AND ACKERMANN, IT IS READILY APPARENT THAT THE SITUATIONS OF
THE PARTIES BORE ONLY THE SLIGHTEST RESEMBLANCE TO EACH OTHER.  THE
COMPARISON STRIKINGLY POINTS UP THE DIFFERENCE BETWEEN NO CHOICE AND
CHOICE; IMPRISONMENT AND FREEDOM OF ACTION; NO TRIAL AND TRIAL; NO
COUNSEL AND COUNSEL; NO CHANCE FOR NEGLIGENCE AND INEXCUSABLE
NEGLIGENCE.  SUBSECTION 6 OF RULE 60(B) HAS NO APPLICATION TO THE
SITUATION OF PETITIONER.  NEITHER THE CIRCUMSTANCES OF PETITIONER NOR
HIS EXCUSE FOR NOT APPEALING IS SO EXTRAORDINARY AS TO BRING HIM WITHIN
KLAPPROTT OR RULE 60(B)(6). 

THE MOTION FOR RELIEF WAS PROPERLY DENIED, AND THE JUDGMENT IS
AFFIRMED. 

NO. 36, FRIEDA ACKERMANN V. UNITED STATES, IS A COMPANION CASE TO NO.
35, AND IT WAS STIPULATED THAT THE DECISION IN NO. 36 SHOULD BE THE
SAME AS IN NO. 35.  THE JUDGMENT IN NO. 36 THEREFORE IS ALSO AFFIRMED. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

THE COURT'S INTERPRETATION OF AMENDED RULE 60(B) OF THE FEDERAL RULES
OF CIVIL PROCEDURE NEUTRALIZES THE HUMANE SPIRIT OF THE RULE AND
THEREBY FRUSTRATES ITS PURPOSE.  THE RULE EMPOWERS COURTS TO SET ASIDE
JUDGMENTS UNDER FIVE TRADITIONAL, SPECIFIED TYPES OF CIRCUMSTANCES IN
WHICH IT WOULD BE INEQUITABLE TO PERMIT A JUDGMENT TO STAND.  BUT THE
DRAFTSMEN OF THE RULE DID NOT INTEND THAT THESE SPECIFIED GROUNDS
SHOULD PREVENT THE GRANTING OF SIMILAR RELIEF IN OTHER SITUATIONS WHERE
FAIRNESS MIGHT REQUIRE IT.  ACCORDINGLY, THERE WAS ADDED A BROAD SIXTH
GROUND:  "ANY OTHER REASON JUSTIFYING RELIEF FROM THE OPERATION OF THE
JUDGMENT."  THE COURT NEVERTHELESS HOLDS THAT THE ALLEGATIONS OF THE
PRESENT MOTIONS WERE NOT SUFFICIENT TO JUSTIFY THE DISTRICT COURT IN
HEARING EVIDENCE TO DETERMINE WHETHER JUSTICE WOULD BEST BE SERVED BY
GRANTING RELIEF FROM THE JUDGMENTS AGAINST PETITIONERS* .  BECAUSE I
DISAGREE WITH THIS INTERPRETATION OF RULE 60(B), IT BECOMES NECESSARY
TO SUMMARIZE THE ALLEGATIONS OF THE MOTIONS. 

*PETITIONERS' MOTIONS TO BE RELIEVED FROM THE JUDGMENTS OF
DENATURALIZATION INVOKED THE JURISDICTION OF THE DISTRICT COURT UNDER
RULE 60(B).  CONTENDING THAT THESE MOTIONS DID "NOT STATE GROUNDS
SUFFICIENT TO INVOKE THE AUTHORITY OF THE COURT  ...  ," THE GOVERNMENT
MOVED TO DISMISS THEM.  THESE PLEADINGS THEREFORE POSED ONLY THE
QUESTION OF THE TRIAL COURT'S JURISDICTION.  WITHOUT FURTHER PLEADINGS
OR THE TAKING OF EVIDENCE, THE COURT ENTERED AN ORDER WHICH STATED THAT
"THERE IS NO MERIT TO SAID (PETITIONERS')(MOTIONS) AND  ...  THE SAME
SHOULD BE DENIED."  BUT SINCE WE CANNOT ASSUME THAT AN ISSUE NOT FRAMED
BY THE PLEADINGS WAS DECIDED, IT NECESSARILY FOLLOWS THAT THE DISTRICT
COURT HELD IT WAS WITHOUT JURISDICTION TO GRANT RELIEF UNDER RULE
60(B).  BUT CF. BELL V. HOOD, 327 U.S. 678, 682-683; BROWN V. WESTERN
R. CO., 338 U.S. 294. 

PETITIONERS, A HUSBAND AND WIFE WHOSE NATIVE COUNTRY WAS GERMANY,
BECAME NATURALIZED CITIZENS OF THE UNITED STATES IN 1938.  AFTER THE
DECLARATION OF WAR AGAINST GERMANY, THE GOVERNMENT COMMENCED
PROCEEDINGS WHICH RESULTED IN THE DENATURALIZATION OF PETITIONERS AND
ALSO OF THEIR RELATIVE, KEILBAR.  UNITED STATES V. ACKERMANN, 53
F.SUPP.  611.  PETITIONERS DID NOT APPEAL FROM THESE JUDGMENTS BUT ON
MARCH 25, 1948, FILED DULY VERIFIED MOTIONS FOR RELIEF FROM THE
JUDGMENTS.  THE UNCONTRADICTED ALLEGATIONS OF THE MOTIONS SHOW:  WHEN
THE JUDGMENTS WERE ENTERED, NEITHER OF THE PETITIONERS HAD ANY MONEY OR
PROPERTY EXCEPT A HOME AT TAYLOR, TEXAS, WORTH NOT IN EXCESS OF
$2,500.  THEY WERE TOLD BY THEIR COUNSEL THAT THE COST OF AN APPEAL
WOULD BE $5,000; THAT TO PROSECUTE AN APPEAL THEY WOULD HAVE TO SELL
THEIR HOME, CONTRIBUTE THAT $2,500 AND THEN HOPE TO HAVE THE APPEAL
TRIED OUT ON AN AFFIDAVIT OF INSOLVENCY.  BEING DISTRESSED BY REASON OF
HAVING TO CHOOSE BETWEEN SELLING THEIR HOME OR FOREGOING AN APPEAL, THE
PETITIONERS SOUGHT ADVICE FROM THE UNITED STATES OFFICIAL WHO THEN HELD
THEM IN CUSTODY, ONE W. F. KELLEY, ASSISTANT COMMISSIONER FOR ALIEN
CONTROL, IMMIGRATION AND NATURALIZATION SERVICE OF THE UNITED STATES. 
PETITIONERS HAD GREAT CONFIDENCE IN THIS OFFICER.  KELLEY ADVISED THEM
TO "HANG ON TO THEIR HOME" AND ALSO THAT THEY "WOULD BE RELEASED AT THE
END OF THE WAR."  BECAUSE OF THEIR RELIANCE ON THIS ADVICE, PETITIONERS
"REFRAINED FROM APPEALING  ...  SAID JUDGMENTS."  THEREAFTER THEIR
RELATIVE KEILBAR DID APPEAL AND THE JUDGMENT OF DENATURALIZATION
AGAINST HIM WAS REVERSED ON THE GOVERNMENT'S ADMISSION THAT THE
EVIDENCE WAS INSUFFICIENT TO SUPPORT IT.  KEILBAR V. UNITED STATES, 144
F.2D 866.  PETITIONERS INSISTED BOTH IN THEIR MOTIONS TO SET THE
JUDGMENTS ASIDE AND IN ARGUMENT THAT THE EVIDENCE AGAINST THEM AND
KEILBAR WAS SUBSTANTIALLY THE SAME. 

IN HOLDING THAT THE ALLEGATIONS OF THESE MOTIONS ARE NOT EVEN
SUFFICIENT TO JUSTIFY THE DISTRICT COURT IN HEARING EVIDENCE, THE COURT
RELIES HEAVILY ON ITS ASSERTION THAT PETITIONERS "HAD NO RIGHT TO
REPOSE CONFIDENCE IN KELLEY" BECAUSE KELLEY WAS A "STRANGER" TO THEM. 
IN THE FIRST PLACE, RULE 60(B)'S BROAD GRANT OF POWER TO THE DISTRICT
COURT SHOULD NOT BE CONSTRICTED BY THE IMPORTATION OF THE CONCEPT OF
LEGAL "RIGHTS."  MOREOVER, FAR FROM BEING A STRANGER, KELLEY WAS THE
UNITED STATES OFFICIAL WHO HELD PETITIONERS IN CUSTODY.  ANY PERSON
HELD BY THE UNITED STATES SHOULD BE ABLE TO REPOSE CONFIDENCE IN THE
GOVERNMENT OFFICIAL ENTRUSTED WITH HIS CUSTODY.  THERE ARE OBVIOUS
REASONS WHY THIS SHOULD BE TRUE IN THE CASE OF THE FOREIGN BORN, LESS
FAMILIAR WITH OUR CUSTOMS THAN ARE OUR NATIVE CITIZENS. 

THE COURT ALSO RELIES ON THE FACT THAT THE MOTIONS TO SET ASIDE THE
JUDGMENTS CONTAIN "NO ALLEGATIONS OF PRIVITY OR ANY FIDUCIARY RELATIONS
EXISTING" BETWEEN PETITIONERS AND KELLEY.  SURELY THE LIBERALIZING
PROVISIONS OF 60(B) SHOULD NOT BE EMASCULATED BY COMMON-LAW IDEAS OF
"PRIVITY" OR "FIDUCIARY RELATIONS."  IF RELEVANT, HOWEVER, I SHOULD
THINK THAT THE PHRASE "FIDUCIARY RELATIONS" GIVEN ITS BEST MEANING
ENCOMPASSES THE RELATIONSHIP BETWEEN PETITIONERS AND THE OFFICIAL WHO
HELD THEM IN CUSTODY. 

FINALLY, SINCE THE COURT HOLDS THAT THE ALLEGATIONS OF PETITIONERS'
MOTIONS WERE INSUFFICIENT TO JUSTIFY THE HEARING OF EVIDENCE BY THE
DISTRICT COURT, I THINK IT INAPPROPRIATE FOR THE COURT TO CONSIDER WHAT
PURPORTS TO BE ITS JUDICIAL KNOWLEDGE OF THE COST OF TRANSCRIPTS AND
THE ABILITY OF LITIGANTS TO FILE TYPEWRITTEN RECORDS AND BRIEFS.  THE
MOTIONS REFUTE ANY SUCH KNOWLEDGE ON THE PART OF THESE PETITIONERS AND
I AM SATISFIED THAT NO SUCH KNOWLEDGE WOULD BE ESTABLISHED IF THE
DISTRICT COURT WERE PERMITTED TO TRY THESE CASES. 

THE RESULT OF THE COURT'S ILLIBERAL CONSTRUCTION OF 60(B) IS THAT
THESE FOREIGN-BORN PEOPLE, DEPENDENT ON OUR LAWS FOR THEIR SAFETY AND
PROTECTION, ARE DENIED THE RIGHT TO APPEAL TO THE VERY COURT THAT HELD
(ON THE GOVERNMENT'S ADMISSION) THAT THE JUDGMENT AGAINST THEIR CO
DEFENDANT WAS UNSUPPORTED BY ADEQUATE EVIDENCE.  IT DOES NO GOOD TO
HAVE LIBERALIZING RULES LIKE 60(B) IF, AFTER THEY ARE WRITTEN, THEIR
ARTERIES ARE HARDENED BY THIS COURT'S RESORT TO ANCIENT COMMON-LAW
CONCEPTS.  I WOULD REVERSE. 
..END :



WHELCHEL V. MCDONALD, 340 U.S. 122 


NO. 109.  ARGUED NOVEMBER 10, 1950.  - DECIDED DECEMBER 4, 1950.  - 178
F.2D 760, AFFIRMED. 


PETITIONER, WHILE ON ACTIVE DUTY WITH THE UNITED STATES ARMY IN
GERMANY, WAS CONVICTED OF RAPE BY A GENERAL COURT-MARTIAL.  HE APPLIED
TO THE FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS CORPUS, CHALLENGING
THE LEGALITY OF HIS DETENTION UNDER THE SENTENCE, ON THE GROUND THAT HE
WAS INSANE AT THE TIME OF THE OFFENSE.  HELD:  THE MILITARY TRIBUNAL
THAT TRIED PETITIONER WAS NOT DEPRIVED OF JURISDICTION BY THE MANNER IN
WHICH THE INSANITY ISSUE WAS DEALT WITH, AND HABEAS CORPUS WAS
THEREFORE NOT AN AVAILABLE REMEDY.  PP. 123-127. 

1.  UNDER THE LAW GOVERNING COURT-MARTIAL PROCEDURE, THERE MUST BE
AFFORDED A DEFENDANT AT SOME POINT OF TIME AN OPPORTUNITY TO TENDER THE
ISSUE OF INSANITY, AND PETITIONER WAS AFFORDED THAT OPPORTUNITY.  P.
124. 

2.  ANY ERROR THAT MAY BE COMMITTED BY THE MILITARY AUTHORITIES IN
EVALUATING THE EVIDENCE TENDERED IS BEYOND THE REACH OF REVIEW BY THE
CIVIL COURTS.  P. 124. 

3.  THE FACT THAT THE LAW MEMBER OF THE COURT-MARTIAL WAS NOT NAMED
FROM THE JUDGE ADVOCATE GENERAL'S DEPARTMENT DOES NOT ESTABLISH A GROSS
ABUSE OF DISCRETION IN THE ABSENCE OF A SHOWING OF THE AVAILABILITY OF
AN OFFICER OF THE DEPARTMENT.  P. 126. 

4.  THE PROVISION OF ARTICLE 4 OF THE REVISED ARTICLES OF WAR,
WHEREBY AN ACCUSED MAY REQUEST THAT ENLISTED MEN BE INCLUDED ON THE
COURT-MARTIAL, WAS NOT YET IN EFFECT WHEN PETITIONER WAS TRIED, AND THE
FACT THAT HE WAS TRIED BY A COURT-MARTIAL COMPOSED WHOLLY OF OFFICERS
DOES NOT RAISE A QUESTION WHICH GOES TO JURISDICTION.  PP. 126-127. 

5.  THE RIGHT TO TRIAL BY JURY GUARANTEED BY THE SIXTH AMENDMENT IS
NOT APPLICABLE TO TRIALS BY COURTS-MARTIAL OR MILITARY COMMISSIONS.  P.
127. 

WHELCHEL V. MCDONALD, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING TO SECURE PETITIONER'S RELEASE FROM
IMPRISONMENT UNDER A SENTENCE OF A GENERAL COURT-MARTIAL, THE DISTRICT
COURT DISMISSED THE PETITION AND REMANDED PETITIONER TO CUSTODY.  THE
COURT OF APPEALS AFFIRMED.  176 F.2D 260, 178 F.2D 760.  THIS COURT
GRANTED CERTIORARI.  339 U.S. 977.  AFFIRMED, P. 127. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, WHILE ON ACTIVE DUTY WITH THE ARMY IN GERMANY, WAS
CONVICTED BY A GENERAL COURT-MARTIAL OF RAPE ON A GERMAN GIRL.  THE
SENTENCE OF DEATH, ORIGINALLY IMPOSED, WAS REDUCED TO A TERM OF YEARS. 
THIS CASE ARISES ON A PETITION FOR A WRIT OF HABEAS CORPUS FILED IN THE
DISTRICT COURT, CHALLENGING THE LEGALITY OF PETITIONER'S DETENTION
UNDER THAT SENTENCE.  THAT COURT DENIED THE PETITION AND THE COURT OF
APPEALS AFFIRMED.  178 F.2D 760.  THE MAIN POINT PRESENTED BY THE
PETITION FOR CERTIORARI IS WHETHER THE MILITARY TRIBUNAL THAT TRIED
PETITIONER WAS DEPRIVED OF JURISDICTION BY REASON OF THE TREATMENT OF
THE INSANITY ISSUE TENDERED BY PETITIONER.  WE HOLD THAT IT WAS NOT. 

THE CHARGES AGAINST PETITIONER WERE REFERRED TO AN INVESTIGATING
OFFICER IN ACCORDANCE WITH ARTICLE 70 OF THE ARTICLES OF WAR, 10 U.S.C.
(1946 ED.)  SEC.  1542.  THE INVESTIGATING OFFICER REPORTED THAT HE HAD
NO REASONABLE GROUND FOR BELIEVING PETITIONER WAS DERANGED.  A
NEUROPSYCHIATRIST ATTACHED TO PETITIONER'S DIVISION REPORTED, AFTER
EXAMINING PETITIONER, THAT HE WAS LEGALLY SANE.  THE DIVISION STAFF
JUDGE ADVOCATE RECOMMENDED A GENERAL COURT-MARTIAL TRIAL, STATING THERE
WAS NO REASON TO BELIEVE PETITIONER TO BE TEMPORARILY OR PERMANENTLY
DERANGED.  THE DEFENSE OF INSANITY WAS NOT RAISED, HOWEVER, EITHER AT
THE PRETRIAL INVESTIGATION OR THE TRIAL ITSELF.  AFTER THE TRIAL
PETITIONER'S TRIAL COUNSEL WROTE THE DIVISION COMMANDING GENERAL
REQUESTING THAT THE CASE BE REOPENED AND PETITIONER BE GIVEN A
NEUROPSYCHIATRIC EXAMINATION ON THE GROUND THAT COUNSEL HAD RECEIVED
INFORMATION THAT PETITIONER MIGHT HAVE BEEN IN AN EPILEPTIC FIT AT THE
TIME OF THE OFFENSE.  THIS REQUEST RECEIVED THE CONCURRENCE OF FIVE OF
THE SIX MEMBERS OF THE COURT-MARTIAL AND WAS ACCOMPANIED BY SIMILAR
LETTERS FROM TWO OFFICERS AND A SERGEANT OF PETITIONER'S DIVISION.  THE
RECORD WAS IN THIS CONDITION WHEN IT WAS REVIEWED BY GENERAL EISENHOWER
OF THE EUROPEAN THEATRE OF OPERATIONS, BY THE BOARD OF REVIEW OF THAT
THEATRE, AND BY THE ASSISTANT JUDGE ADVOCATE GENERAL. 

THERE WAS EVIDENCE IN THE HEARING BEFORE THE DISTRICT COURT THAT
PETITIONER MAY HAVE BEEN EITHER INSANE OR DRUNK AT THE TIME OF THE
CRIME. 

WE PUT TO ONE SIDE THE DUE PROCESS ISSUE WHICH RESPONDENT PRESSES,
FOR WE THINK IT PLAIN FROM THE LAW GOVERNING COURT-MARTIAL PROCEDURE
THAT THERE MUST BE AFFORDED A DEFENDANT AT SOME POINT OF TIME AN
OPPORTUNITY TO TENDER THE ISSUE OF INSANITY.  IT IS ONLY A DENIAL OF
THAT OPPORTUNITY WHICH GOES TO THE QUESTION OF JURISDICTION.  THAT
OPPORTUNITY WAS AFFORDED HERE.  ANY ERROR THAT MAY BE COMMITTED IN
EVALUATING THE EVIDENCE TENDERED IS BEYOND THE REACH OF REVIEW BY THE
CIVIL COURTS. 

THE MANUAL PRESCRIBES THE ORDINARY TEST OF CRIMINAL RESPONSIBILITY,
VIZ., WHETHER THE ACCUSED WAS ABLE TO TELL RIGHT FROM WRONG.  FN1
INSANITY IS A DEFENSE.  FN2  THE PRETRIAL PROCEDURE PRESCRIBED IN
ARTICLE 70 OFFERS THE ACCUSED AN OPPORTUNITY TO PRESENT THE DEFENSE OF
INSANITY.  PETITIONER HAD THAT OPPORTUNITY.  THE MANUAL PROVIDES THAT
THE REVIEWING AUTHORITY (HERE THE COMMANDING GENERAL OF THE DIVISION)
"WILL TAKE APPROPRIATE ACTION WHERE IT APPEARS FROM THE RECORD OR
OTHERWISE THAT THE ACCUSED MAY HAVE BEEN INSANE" AT THE TIME OF THE
CRIME, WHETHER OR NOT SUCH QUESTION WAS RAISED AT THE TRIAL.  FN3  THAT
IS ALSO A PROVISION WHICH IS APPLICABLE TO THE CONFIRMING AUTHORITY
N4(HERE THE GENERAL IN CHARGE OF THE EUROPEAN THEATRE OF OPERATIONS). 
THE CONFIRMING AUTHORITY HAD BEFORE IT THE REQUEST OF THE DEFENSE
COUNSEL AND THE OTHER LETTERS AND RECOMMENDATIONS SUBMITTED TO IT.  THE
MANUAL DOES NOT REQUIRE EITHER THE REVIEWING AUTHORITY OR THE
CONFIRMING AUTHORITY TO HALT THE PROCEEDINGS, MAKE A FURTHER
INVESTIGATION, OR START OVER AGAIN.  IT ENTRUSTS THE MATTER TO THE
DISCRETION OF THOSE AUTHORITIES. 

PETITIONER HAD A FURTHER CONSIDERATION BY THE MILITARY AUTHORITIES OF
THE INSANITY ISSUE WHICH HE TENDERS.  BY ARTICLE 53 OF THE REVISED
ARTICLES OF WAR, ACT OF JUNE 24, 1948, 62 STAT. 639, 642, 10 U.S.C.
(SUPP. III) SEC. 1525, WHICH WAS EFFECTIVE FEBRUARY 1, 1949, THE JUDGE
ADVOCATE GENERAL IS AUTHORIZED "UPON APPLICATION OF AN ACCUSED PERSON,
AND UPON GOOD CAUSE SHOWN, IN HIS DISCRETION TO GRANT A NEW TRIAL" IN
ANY COURT-MARTIAL CASE ON APPLICATION WITHIN THE PRESCRIBED TIME
LIMITS.  THAT ARTICLE BECAME EFFECTIVE AFTER THE PETITION FOR HABEAS
CORPUS WAS FILED.  BUT WHILE THE CASE WAS PENDING ON APPEAL THE COURT
OF APPEALS DELAYED FINAL ACTION WHILE PETITIONER MADE APPLICATION UNDER
ARTICLE 53.  THE JUDGE ADVOCATE GENERAL REVIEWED ALL THE EVIDENCE ON
THE INSANITY ISSUE WHICH PETITIONER HAD TENDERED BOTH TO THE MILITARY
AUTHORITIES AND TO THE DISTRICT COURT IN THE HABEAS CORPUS PROCEEDING
AND CONCLUDED "I ENTERTAIN NO DOUBT THAT WHELCHEL WAS SO FAR FREE FROM
MENTAL DEFECT, DISEASE, AND DERANGEMENT AS TO BE ABLE CONCERNING THE
PARTICULAR ACTS CHARGED BOTH TO DISTINGUISH RIGHT FROM WRONG AND TO
ADHERE TO THE RIGHT  ...  " 

ANY ERROR BY THE MILITARY IN EVALUATING THE EVIDENCE ON THE QUESTION
OF INSANITY WOULD NOT GO TO JURISDICTION, THE ONLY ISSUE BEFORE THE
COURT IN HABEAS CORPUS PROCEEDINGS. 

THE LAW MEMBER OF THE COURT-MARTIAL WAS NOT NAMED FROM THE JUDGE
ADVOCATE GENERAL'S DEPARTMENT.  BUT SINCE NO SHOWING WAS MADE OF THE
AVAILABILITY OF SUCH A MEMBER, A CASE OF GROSS ABUSE OF DISCRETION HAS
NOT BEEN ESTABLISHED.  SEE HIATT V. BROWN, 339 U.S. 103, 109-110. 

UNDER ARTICLE 4 OF THE REVISED ARTICLES OF WAR AN ACCUSED MAY NOW
REQUEST THAT ENLISTED MEN BE INCLUDED ON THE COURT-MARTIAL THAT TRIES
HIM.  FN5  THERE WAS NO SUCH PROVISION OF THE LAW WHEN PETITIONER WAS
TRIED.  FN6  BUT THE FACT THAT HE WAS TRIED BY A COURT-MARTIAL COMPOSED
WHOLLY OF OFFICERS DOES NOT RAISE A QUESTION WHICH GOES TO
JURISDICTION.  PETITIONER CAN GAIN NO SUPPORT FROM THE ANALOGY OF TRIAL
BY JURY IN THE CIVIL COURTS.  THE RIGHT TO TRIAL BY JURY GUARANTEED BY
THE SIXTH AMENDMENT IS NOT APPLICABLE TO TRIALS BY COURTS-MARTIAL OR
MILITARY COMMISSIONS.  SEE KAHN V. ANDERSON, 255 U.S. 1, 8; EX PARTE
QUIRIN, 317 U.S. 1, 40-41.  COURTS-MARTIAL HAVE BEEN COMPOSED OF
OFFICERS BOTH BEFORE AND AFTER THE ADOPTION OF THE CONSTITUTION N7. 
THE CONSTITUTION OF COURTS-MARTIAL, LIKE OTHER MATTERS RELATING TO
THEIR ORGANIZATION AND ADMINISTRATION (SEE KAHN V. ANDERSON, SUPRA, 6
7; SWAIM V. UNITED STATES, 165 U.S. 553, 556-559; MULLAN V. UNITED
STATES, 140 U.S. 240, 244-245; MARTIN V. MOTT, 12 WHEAT.  19, 34-35),
IS A MATTER APPROPRIATE FOR CONGRESSIONAL ACTION.  AFFIRMED. 

FN1  PARAGRAPH 78A MANUAL FOR COURTS-MARTIAL (1928 ED.)  PROVIDES:
"A PERSON IS NOT MENTALLY RESPONSIBLE FOR AN OFFENSE UNLESS HE WAS AT
THE TIME SO FAR FREE FROM MENTAL DEFECT, DISEASE, OR DERANGEMENT AS TO
BE ABLE CONCERNING THE PARTICULAR ACTS CHARGED BOTH TO DISTINGUISH
RIGHT FROM WRONG AND TO ADHERE TO THE RIGHT." 

FN2  PARAGRAPH 63 OF THE MANUAL PROVIDES:  "THE COURT WILL INQUIRE
INTO THE EXISTING MENTAL CONDITION OF THE ACCUSED WHENEVER AT ANY TIME
WHILE THE CASE IS BEFORE THE COURT IT APPEARS TO THE COURT FOR ANY
REASON THAT SUCH INQUIRY OUGHT TO BE MADE IN THE INTEREST OF JUSTICE. 
REASONS FOR SUCH ACTION MAY INCLUDE ANYTHING THAT WOULD CAUSE A
REASONABLE MAN TO QUESTION THE ACCUSED'S MENTAL CAPACITY EITHER TO
UNDERSTAND THE NATURE OF THE PROCEEDINGS OR INTELLIGENTLY TO CONDUCT OR
TO COOPERATE IN HIS DEFENSE." 

PARAGRAPH 75A PROVIDES:  "IF THE COURT DETERMINES THAT THE ACCUSED
WAS NOT MENTALLY RESPONSIBLE, IT WILL FORTHWITH ENTER A FINDING OF NOT
GUILTY AS TO THE PROPER SPECIFICATION." 

PARAGRAPH 78A PROVIDES:  "WHERE A REASONABLE DOUBT EXISTS AS TO THE
MENTAL RESPONSIBILITY OF AN ACCUSED FOR AN OFFENSE CHARGED, THE ACCUSED
CAN NOT LEGALLY BE CONVICTED OF THAT OFFENSE." 

FN3  ID. P87B. 

FN4  ID. P88. 

FN5 10 U.S.C. (SUPP. III) SEC. 1475. 

FN6  AT THE TIME OF PETITIONER'S TRIAL ARTICLE 4, 10 U.S.C. (1946
ED.)  SEC.  1475, PROVIDED IN PERTINENT PART AS FOLLOWS:  "ALL OFFICERS
IN THE MILITARY SERVICE OF THE UNITED STATES, AND OFFICERS OF THE
MARINE CORPS WHEN DETACHED FOR SERVICE WITH THE ARMY BY ORDER OF THE
PRESIDENT, SHALL BE COMPETENT TO SERVE ON COURTS-MARTIAL FOR THE TRIAL
OF ANY PERSONS WHO MAY LAWFULLY BE BROUGHT BEFORE SUCH COURTS FOR
TRIAL." 

FN7  SEE COLLECTION OF PRECEDENTS IN WINTHROP'S MILITARY LAW AND
PRECEDENTS (2D ED., REPRINT 1920):  BRITISH ARTICLES OF WAR OF 1765, P.
942; AMERICAN ARTICLES OF WAR OF 1776, P. 967; AMERICAN ARTICLES OF WAR
OF 1806, PP. 981-982. 
..END :






GUSIK V. SCHILDER, 340 U.S. 128 


NO. 110.  ARGUED NOVEMBER 10, 1950.  - DECIDED DECEMBER 4, 1950.  - 180
F.2D 662, REVERSED. 


1.  ARTICLE 53 OF THE ARTICLES OF WAR GIVES THE JUDGE ADVOCATE GENERAL
DISCRETION TO GRANT A NEW TRIAL IN ANY COURT-MARTIAL CASE.  HELD:  A
FEDERAL COURT SHOULD NOT ENTERTAIN A PETITION FOR HABEAS CORPUS ON
BEHALF OF ONE IMPRISONED UNDER A SENTENCE OF A COURT-MARTIAL UNTIL THE
REMEDY AFFORDED BY ARTICLE 53 HAS BEEN EXHAUSTED, NOTWITHSTANDING THAT
THE PETITION FOR HABEAS CORPUS WAS FILED PRIOR TO THE EFFECTIVE DATE OF
THE ARTICLE AND THAT THE PETITIONER HAD EXHAUSTED THE PREVIOUSLY
EXISTING ADMINISTRATIVE REMEDIES.  PP. 129-134. 

2.  ARTICLE 53 IS APPLICABLE TO WORLD WAR II COURT-MARTIAL CASES IN
WHICH APPELLATE REVIEW WAS COMPLETED PRIOR TO THE EFFECTIVE DATE OF THE
ARTICLE OR IN WHICH HABEAS CORPUS PROCEEDINGS HAD BEEN INSTITUTED PRIOR
TO THAT DATE.  PP. 130-132. 

3.  THE PROVISION OF ARTICLE 53 THAT ALL ACTION BY THE JUDGE ADVOCATE
GENERAL THEREUNDER SHALL BE "FINAL AND CONCLUSIVE" AND SHALL BE
"BINDING UPON ALL DEPARTMENTS, COURTS, AGENCIES, AND OFFICERS OF THE
UNITED STATES" MUST BE READ AS DESCRIBING THE TERMINAL POINT FOR
PROCEEDINGS WITHIN THE COURT-MARTIAL SYSTEM AND NOT AS DEPRIVING THE
CIVIL COURTS OF JURISDICTION TO REVIEW BY HABEAS CORPUS THE JUDGMENTS
OF MILITARY TRIBUNALS.  PP. 132-133. 

4.  PETITIONER'S BELIEF THAT RESORT TO ARTICLE 53 WILL BE FUTILE
CANNOT EXCUSE HIS FAILURE TO EXHAUST THE REMEDY PROVIDED BY THAT
ARTICLE.  P. 133. 

5.  THE TRIAL OF THIS CASE IN THE DISTRICT COURT HAVING ENDED BEFORE
THE EFFECTIVE DATE OF ARTICLE 53, AND THE QUESTION OF THE EXHAUSTION OF
THE NEW REMEDY NOT HAVING BEEN RAISED UNTIL THE CASE WAS ON APPEAL, THE
COURT OF APPEALS SHOULD HAVE HELD THE CASE PENDING RESORT TO THE NEW
REMEDY UNDER THE ARTICLE.  PP. 133-134. 

GUSIK V. SCHILDER, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING TO SECURE PETITIONER'S RELEASE FROM
IMPRISONMENT UNDER SENTENCE OF A COURT-MARTIAL, THE DISTRICT COURT
SUSTAINED THE WRIT AND ORDERED PETITIONER RELEASED ON BOND.  THE COURT
OF APPEALS REVERSED.  180 F.2D 662.  THIS COURT GRANTED CERTIORARI. 
339 U.S. 977.  REVERSED AND REMANDED, P. 134. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A PETITION FOR A WRIT OF HABEAS CORPUS FILED IN THE DISTRICT
COURT ON BEHALF OF PETITIONER CHALLENGING THE LEGALITY OF HIS DETENTION
BY RESPONDENT.  RESPONDENT HOLDS GUSIK PURSUANT TO A COURT-MARTIAL
JUDGMENT CONVICTING HIM OF MURDER WHILE HE WAS STATIONED IN ITALY AS A
MEMBER OF THE UNITED STATES ARMY.  AFTER CONVICTION BY THE COURT
MARTIAL PETITIONER EXHAUSTED ALL HIS REMEDIES FOR REVERSAL OR
MODIFICATION OF THE JUDGMENT OF CONVICTION WHICH THEN EXISTED UNDER THE
ARTICLES OF WAR.  WHEN HE SECURED NO RELIEF FROM THE MILITARY
AUTHORITIES HE FILED THIS PETITION IN WHICH HE CHALLENGES THE
JURISDICTION OF THE COURT-MARTIAL BOTH UNDER THE ARTICLES OF WAR AND
THE CONSTITUTION.  THE DISTRICT COURT, AFTER A HEARING, SUSTAINED THE
WRIT AND RELEASED GUSIK ON BOND.  IT FOUND THAT THE COURT-MARTIAL DID
NOT HAVE JURISDICTION, BECAUSE NO THOROUGH AND IMPARTIAL PRETRIAL
INVESTIGATION WAS CONDUCTED IN COMPLIANCE WITH ARTICLE 70 OF THE
ARTICLES OF WAR, BECAUSE THE TRIAL JUDGE ADVOCATE FAILED TO CALL
MATERIAL WITNESSES, AND BECAUSE GUSIK WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL.  THE COURT OF APPEALS REVERSED, 180 F.2D 662. 
IT DID NOT REACH THE MERITS OF THE CASE; IT HELD THAT THERE WAS AN
ADMINISTRATIVE REMEDY WHICH PETITIONER HAD NOT EXHAUSTED AND THAT THE
PETITION MUST BE DISMISSED WITHOUT PREJUDICE TO THE FILING OF A NEW
PETITION AFTER RESORT TO THE ADDITIONAL ADMINISTRATIVE REMEDY HAD BEEN
MADE. 

THE NEW REMEDY IS ARTICLE 53 OF THE ARTICLES OF WAR, 62 STAT. 639, 10
U.S.C. (SUPP. III) SEC. 1525.  FN1  IT GIVES THE JUDGE ADVOCATE GENERAL
DISCRETION, INTER ALIA, TO GRANT A NEW TRIAL IN ANY COURT-MARTIAL
CASE.  TIME LIMITATIONS ARE SPECIFIED; AND "WITH REGARD TO CASES
INVOLVING OFFENSES COMMITTED DURING WORLD WAR II, THE APPLICATION FOR A
NEW TRIAL MAY BE MADE WITHIN ONE YEAR AFTER TERMINATION OF THE WAR, OR
AFTER ITS FINAL DISPOSITION UPON INITIAL APPELLATE REVIEW AS HEREIN
PROVIDED, WHICHEVER IS THE LATER."  PETITIONER ARGUES THAT ARTICLE 53
IS NOT APPLICABLE TO WORLD WAR II COURT-MARTIAL CASES IN WHICH
APPELLATE REVIEW WAS COMPLETED PRIOR TO THE EFFECTIVE DATE OF THE
ARTICLE OR IN WHICH HABEAS CORPUS PROCEEDINGS HAD BEEN INSTITUTED PRIOR
TO THAT DATE.  THAT CONSTRUCTION OF THE ACT WOULD REQUIRE EXTENSIVE
TAILORING OF THE LANGUAGE OF ARTICLE 53, SINCE THE NEW ARTICLE
EXPLICITLY APPLIES TO "CASES INVOLVING OFFENSES COMMITTED DURING WORLD
WAR II" WITHOUT REFERENCE TO THE STAGE IN WHICH THE CASES MAY BE ON THE
EFFECTIVE DATE OF THE ARTICLE.  OUR CONCLUSION IS IN HARMONY WITH THE
CONSTRUCTION WHICH THE PRESIDENT, WHO IS AUTHORIZED TO PROVIDE THE
REGULATIONS UNDER ARTICLE 53, GAVE TO THE STATUTORY LANGUAGE IN
EXECUTIVE ORDER 10020 WHICH PROMULGATED THE MANUAL FOR COURTS-MARTIAL. 
FN2  THAT ORDER STATES THAT THE NEW MANUAL SHALL BE IN FORCE AND EFFECT
ON AND AFTER FEBRUARY 1, 1949, "WITH RESPECT TO ALL COURT-MARTIAL
PROCESSES TAKEN ON OR AFTER FEBRUARY 1, 1949."  A PETITION FOR A NEW
TRIAL UNDER ARTICLE 53 IS SUCH A PROCESS. 

IF ARTICLE 53 HAD BEEN IN FORCE WHEN THE HABEAS CORPUS PROCEEDINGS
WERE INSTITUTED, THE DISTRICT COURT WOULD NOT HAVE BEEN JUSTIFIED IN
ENTERTAINING THE PETITION UNLESS THE REMEDY AFFORDED BY THE ARTICLE HAD
FIRST BEEN EXHAUSTED.  AN ANALOGY IS A PETITION FOR HABEAS CORPUS IN
THE FEDERAL COURT CHALLENGING THE JURISDICTION OF A STATE COURT.  IF
THE STATE PROCEDURE PROVIDES A REMEDY, WHICH THOUGH AVAILABLE HAS NOT
BEEN EXHAUSTED, THE FEDERAL COURTS WILL NOT INTERFERE.  THAT IS NOT
ONLY THE HOLDING OF THE COURT IN A LONG LINE OF CASES (SEE MOONEY V.
HOLOHAN, 294 U.S. 103, 115; EX PARTE HAWK, 321 U.S. 114, 116); IT IS
THE RULE WHICH CONGRESS RECENTLY WROTE INTO THE JUDICIAL CODE.  28
U.S.C. SEC. 2254.  THE POLICY UNDERLYING THAT RULE IS AS PERTINENT TO
THE COLLATERAL ATTACK OF MILITARY JUDGMENTS AS IT IS TO COLLATERAL
ATTACK OF JUDGMENTS RENDERED IN STATE COURTS.  IF AN AVAILABLE
PROCEDURE HAS NOT BEEN EMPLOYED TO RECTIFY THE ALLEGED ERROR WHICH THE
FEDERAL COURT IS ASKED TO CORRECT, ANY INTERFERENCE BY THE FEDERAL
COURT MAY BE WHOLLY NEEDLESS.  THE PROCEDURE ESTABLISHED TO POLICE THE
ERRORS OF THE TRIBUNAL WHOSE JUDGMENT IS CHALLENGED MAY BE ADEQUATE FOR
THE OCCASION.  IF IT IS, ANY FRICTION BETWEEN THE FEDERAL COURT AND THE
MILITARY OR STATE TRIBUNAL IS SAVED.  THAT POLICY IS AS WELL SERVED
WHETHER THE REMEDY WHICH IS AVAILABLE WAS EXISTENT AT THE TIME RESORT
WAS HAD TO THE FEDERAL COURTS OR WAS SUBSEQUENTLY CREATED, AS INDEED IS
IMPLICIT IN CASES FROM A STATE COURT WHOSE REVIEW WE DENIED PENDING
EXHAUSTION OF A NEWLY CREATED STATE REMEDY.  SEE WALKER V. RAGEN, 338
U.S. 833; MARKS V. RAGEN, 339 U.S. 926.  SUCH A PRINCIPLE OF JUDICIAL
ADMINISTRATION IS IN NO SENSE A SUSPENSION OF THE WRIT OF HABEAS
CORPUS.  IT IS MERELY A DEFERMENT OF RESORT TO THE WRIT UNTIL OTHER
CORRECTIVE PROCEDURES ARE SHOWN TO BE FUTILE. 

AN ARGUMENT IS WOVEN AROUND THE FINALITY CLAUSE OF ARTICLE 53 AS A
FOUNDATION TO A CLAIM OF UNCONSTITUTIONALITY.  THE PROVISION IS THAT
ALL ACTION BY THE JUDGE ADVOCATE GENERAL UNDER ARTICLE 53 SHALL BE
"FINAL AND CONCLUSIVE" AND SHALL BE "BINDING UPON ALL DEPARTMENTS,
COURTS, AGENCIES, AND OFFICERS OF THE UNITED STATES."  IT IS ARGUED
THAT THIS CLAUSE DEPRIVES THE COURTS OF JURISDICTION TO REVIEW THESE
MILITARY JUDGMENTS AND THEREFORE AMOUNTS TO A SUSPENSION OF THE WRIT. 
WE DO NOT SO READ ARTICLE 53.  CONGRESS WAS LEGISLATING AS RESPECTS
TRIBUNALS OVER WHICH THE CIVIL COURTS HAVE TRADITIONALLY EXERCISED NO
POWER OF SUPERVISION OR REVIEW.  SEE IN RE GRIMLEY, 137 U.S. 147, 150. 
THESE TRIBUNALS HAVE OPERATED IN A SELF-SUFFICIENT SYSTEM, SAVE ONLY AS
HABEAS CORPUS WAS AVAILABLE TO TEST THEIR JURISDICTION IN SPECIFIC
CASES.  WE READ THE FINALITY CLAUSE OF ARTICLE 53 AS DOING NO MORE THAN
DESCRIBING THE TERMINAL POINT FOR PROCEEDINGS WITHIN THE COURT-MARTIAL
SYSTEM.  IF CONGRESS HAD INTENDED TO DEPRIVE THE CIVIL COURTS OF THEIR
HABEAS CORPUS JURISDICTION, WHICH HAS BEEN EXERCISED FROM THE
BEGINNING,  FN3  THE BREAK WITH HISTORY WOULD HAVE BEEN SO MARKED THAT
WE BELIEVE THE PURPOSE WOULD HAVE BEEN MADE PLAIN AND UNMISTAKABLE. 
THE FINALITY LANGUAGE SO ADEQUATELY SERVES THE MORE RESTRICTED PURPOSE
THAT WE WOULD HAVE TO GIVE A STRAINED CONSTRUCTION IN ORDER TO STIR THE
CONSTITUTIONAL ISSUE THAT IS TENDERED. 

PETITIONER SAYS THAT RESORT TO ARTICLE 53 WILL BE FUTILE.  IF IT
PROVES TO BE, NO RIGHTS HAVE BEEN SACRIFICED.  HABEAS CORPUS WILL THEN
BE AVAILABLE TO TEST ANY QUESTIONS OF JURISDICTION WHICH PETITIONER MAY
OFFER. 

TRIAL OF THE CASE IN THE DISTRICT COURT HAD ENDED BEFORE THE
EFFECTIVE DATE OF ARTICLE 53 AND THE QUESTION OF THE EXHAUSTION OF THE
NEW REMEDY WHICH THE ARTICLE AFFORDS WAS NOT RAISED UNTIL THE CASE WAS
IN THE COURT OF APPEALS.  FN4  WE CONCLUDE THAT IN THE INTERESTS OF
JUSTICE THE COURT OF APPEALS, INSTEAD OF REVERSING THE DISTRICT COURT
AND ORDERING THE PETITION TO BE DISMISSED, SHOULD HAVE DONE WHAT THE
COURT OF APPEALS IN WHELCHEL V. MCDONALD, ANTE, P. 122, DID UNDER LIKE
CIRCUMSTANCES AND HELD THE CASE PENDING RESORT TO THE NEW REMEDY UNDER
ARTICLE 53.  IF RELIEF IS OBTAINED FROM THE JUDGE ADVOCATE GENERAL, THE
CASE WILL THEN BE REMANDED FOR DISMISSAL.  IF THE RELIEF IS NOT
OBTAINED UNDER ARTICLE 53, PETITIONER WILL NOT BE PUT TO THE TIME AND
EXPENSE OF TRYING ANEW THE CASE WHICH HE TRIED WHEN HE HAD NO RELIEF
OTHER THAN HABEAS CORPUS. 

WE AGREE WITH THE COURT OF APPEALS ON THE MAIN ISSUE TENDERED UNDER
ARTICLE 53.  BUT SINCE WE THINK A DIFFERENT DISPOSITION OF THE CASE
SHOULD BE MADE PENDING RESORT TO THE NEW REMEDY WHICH ARTICLE 53
AFFORDS, WE REVERSE THE JUDGMENT BELOW AND REMAND THE CAUSE TO THE
COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  SO ORDERED. 

FN1  ARTICLE 53 READS AS FOLLOWS:  "UNDER SUCH REGULATIONS AS THE
PRESIDENT MAY PRESCRIBE, THE JUDGE ADVOCATE GENERAL IS AUTHORIZED, UPON
APPLICATION OF AN ACCUSED PERSON, AND UPON GOOD CAUSE SHOWN, IN HIS
DISCRETION TO GRANT A NEW TRIAL, OR TO VACATE A SENTENCE, RESTORE
RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED BY SUCH SENTENCE, AND
SUBSTITUTE FOR A DISMISSAL, DISHONORABLE DISCHARGE, OR BAD CONDUCT
DISCHARGE PREVIOUSLY EXECUTED A FORM OF DISCHARGE AUTHORIZED FOR
ADMINISTRATIVE ISSUANCE, IN ANY COURT-MARTIAL CASE IN WHICH APPLICATION
IS MADE WITHIN ONE YEAR AFTER FINAL DISPOSITION OF THE CASE UPON
INITIAL APPELLATE REVIEW:  PROVIDED, THAT WITH REGARD TO CASES
INVOLVING OFFENSES COMMITTED DURING WORLD WAR II, THE APPLICATION FOR A
NEW TRIAL MAY BE MADE WITHIN ONE YEAR AFTER TERMINATION OF THE WAR, OR
AFTER ITS FINAL DISPOSITION UPON INITIAL APPELLATE REVIEW AS HEREIN
PROVIDED, WHICHEVER IS THE LATER:  PROVIDED, THAT ONLY ONE SUCH
APPLICATION FOR A NEW TRIAL MAY BE ENTERTAINED WITH REGARD TO ANY ONE
CASE:  AND PROVIDED FURTHER, THAT ALL ACTION BY THE JUDGE ADVOCATE
GENERAL PURSUANT TO THIS ARTICLE, AND ALL PROCEEDINGS, FINDINGS, AND
SENTENCES ON NEW TRIALS UNDER THIS ARTICLE, AS APPROVED, REVIEWED, OR
CONFIRMED UNDER ARTICLES 47, 48, 49, AND 50, AND ALL DISMISSALS AND
DISCHARGES CARRIED INTO EXECUTION PURSUANT TO SENTENCES ADJUDGED ON NEW
TRIALS AND APPROVED, REVIEWED, OR CONFIRMED, SHALL BE FINAL AND
CONCLUSIVE AND ORDERS PUBLISHING THE ACTION OF THE JUDGE ADVOCATE
GENERAL OR THE PROCEEDINGS ON NEW TRIAL AND ALL ACTION TAKEN PURSUANT
TO SUCH PROCEEDINGS, SHALL BE BINDING UPON ALL DEPARTMENTS, COURTS,
AGENCIES, AND OFFICERS OF THE UNITED STATES." 

FN2  13 FED. REG. 7519.  AND SEE C. 22 MANUAL FOR COURTS-MARTIAL, ID.
AT 7550. 

FN3  COLLATERAL ATTACK OF A JUDGMENT OF A COURT-MARTIAL WAS EARLY
ENTERTAINED.  WISE V. WITHERS, 3 CRANCH 331, WAS AN ACTION IN TRESPASS
AGAINST ONE WHO JUSTIFIED THE TAKING AS COLLECTOR OF A FINE IMPOSED BY
A COURT-MARTIAL.  THE COURT, SPEAKING THROUGH MARSHALL, C.J., HELD THAT
SINCE THE COURT-MARTIAL ACTED WITHOUT ITS JURISDICTION THE COURT AND
THE OFFICERS WERE TRESPASSERS.  AND SEE HOUSTON V. MOORE, 5 WHEAT. 
1(TRESPASS); MARTIN V. MOTT, 12 WHEAT.  19(REPLEVIN); DYNES V. HOOVER,
20 HOW.  65(ASSAULT, BATTERY, AND FALSE IMPRISONMENT).  EX PARTE REED,
100 U.S. 13, ALLOWED HABEAS CORPUS TO TEST THE JURISDICTION OF A COURT
MARTIAL. 

FN4  THE PETITION FOR HABEAS CORPUS WAS FILED APRIL 27, 1948; THE
RETURN WAS FILED JUNE 17, 1948; THE PARTIES FINISHED INTRODUCING
EVIDENCE ON JANUARY 7, 1949; ARTICLE 53 BECAME EFFECTIVE FEBRUARY 1,
1949; THE DISTRICT COURT FILED ITS OPINION ON MARCH 31, 1949; NOTICE OF
APPEAL WAS FILED MAY 17, 1949; THE CASE WAS ARGUED IN THE COURT OF
APPEALS ON JANUARY 31, 1950. 
..END :








FERES V. UNITED STATES, 340 U.S. 135 


ARGUED OCTOBER 12, 1950.  - DECIDED DECEMBER 4, 1950.  - 177 F.2D 535
AND 178 F.2D 518, AFFIRMED - 178 F.2D 1, REVERSED. 


THE UNITED STATES IS NOT LIABLE UNDER THE FEDERAL TORT CLAIMS ACT FOR
INJURIES TO MEMBERS OF THE ARMED FORCES SUSTAINED WHILE ON ACTIVE DUTY
AND NOT ON FURLOUGH AND RESULTING FROM THE NEGLIGENCE OF OTHERS IN THE
ARMED FORCES.  PP. 136-146. 

(A)  THE TORT CLAIMS ACT SHOULD BE CONSTRUED TO FIT, SO FAR AS WILL
COMPORT WITH ITS WORDS, INTO THE ENTIRE STATUTORY SYSTEM OF REMEDIES
AGAINST THE GOVERNMENT TO MAKE A WORKABLE, CONSISTENT AND EQUITABLE
WHOLE.  P. 139. 

(B)  ONE OF THE PURPOSES OF THE ACT WAS TO TRANSFER FROM CONGRESS TO
THE COURTS THE BURDEN OF EXAMINING TORT CLAIMS AGAINST THE GOVERNMENT;
AND CONGRESS WAS NOT BURDENED WITH PRIVATE BILLS ON BEHALF OF MILITARY
AND NAVAL PERSONNEL, BECAUSE A COMPREHENSIVE SYSTEM OF RELIEF HAD BEEN
AUTHORIZED BY STATUTE FOR THEM AND THEIR DEPENDENTS.  PP. 139-140. 

(C)  THE ACT CONFERS ON THE DISTRICT COURTS BROAD JURISDICTION OVER
"CIVIL ACTIONS ON CLAIMS AGAINST THE UNITED STATES, FOR MONEY DAMAGES";
BUT IT REMAINS FOR THE COURTS TO DETERMINE WHETHER ANY CLAIM IS
RECOGNIZABLE IN LAW.  PP. 140-141. 

(D)  IT DOES NOT CREATE NEW CAUSES OF ACTION BUT MERELY ACCEPTS FOR
THE GOVERNMENT LIABILITY UNDER CIRCUMSTANCES THAT WOULD BRING PRIVATE
LIABILITY INTO EXISTENCE.  P. 141. 

(E)  THERE IS NO ANALOGOUS LIABILITY OF A "PRIVATE INDIVIDUAL"
GROWING OUT OF "LIKE CIRCUMSTANCES," WHEN THE RELATIONSHIP OF THE
WRONGED TO THE WRONGDOERS IN THESE CASES IS CONSIDERED.  PP. 141-142. 

(F)  THE PROVISION OF THE ACT MAKING "THE LAW OF THE PLACE WHERE THE
ACT OR OMISSION OCCURRED" GOVERN ANY CONSEQUENT LIABILITY IS
INCONSISTENT WITH AN INTENTION TO MAKE THE GOVERNMENT LIABLE IN THE
CIRCUMSTANCES OF THESE CASES, SINCE THE RELATIONSHIP OF THE GOVERNMENT
AND MEMBERS OF ITS ARMED FORCES IS "DISTINCTIVELY FEDERAL IN
CHARACTER."  PP. 142-144. 

(G)  THE FAILURE OF THE ACT TO PROVIDE FOR ANY ADJUSTMENT BETWEEN THE
REMEDY PROVIDED THEREIN AND OTHER ESTABLISHED SYSTEMS OF COMPENSATION
FOR INJURIES OR DEATH OF THOSE IN THE ARMED SERVICES IS PERSUASIVE THAT
THE TORT CLAIMS ACT WAS NOT INTENDED TO BE APPLICABLE IN THE
CIRCUMSTANCES OF THESE CASES.  PP. 144-145. 

(H)  BROOKS V. UNITED STATES, 337 U.S. 49, DISTINGUISHED.  P. 146. 

FERES, EXECUTRIX, V. UNITED STATES. 

NO. 9.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT.* 

*TOGETHER WITH NO. 29, JEFFERSON V. UNITED STATES, ON CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, ARGUED
OCTOBER 12-13, 1950, AND NO. 31, UNITED STATES V. GRIGGS, EXECUTRIX, ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT,
ARGUED OCTOBER 13, 1950. 

THE CASES ARE STATED IN THE OPINION.  THE ORDERS GRANTING CERTIORARI
IN NOS. 9 AND 29 ARE REPORTED AT 339 U.S. 910 AND IN NO. 31 AT 339 U.S.
951.  THE DECISIONS BELOW IN NOS. 9 AND 29 ARE AFFIRMED AND THAT IN NO.
31 IS REVERSED, P. 146. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

A COMMON ISSUE ARISING UNDER THE TORT CLAIMS ACT, AS TO WHICH COURTS
OF APPEALS ARE IN CONFLICT, MAKES IT APPROPRIATE TO CONSIDER THREE
CASES IN ONE OPINION. 

THE FERES CASE:  THE DISTRICT COURT DISMISSED AN ACTION BY THE
EXECUTRIX OF FERES AGAINST THE UNITED STATES TO RECOVER FOR DEATH
CAUSED BY NEGLIGENCE.  DECEDENT PERISHED BY FIRE IN THE BARRACKS AT
PINE CAMP, NEW YORK, WHILE ON ACTIVE DUTY IN SERVICE OF THE UNITED
STATES.  NEGLIGENCE WAS ALLEGED IN QUARTERING HIM IN BARRACKS KNOWN OR
WHICH SHOULD HAVE BEEN KNOWN TO BE UNSAFE BECAUSE OF A DEFECTIVE
HEATING PLANT, AND IN FAILING TO MAINTAIN AN ADEQUATE FIRE WATCH.  THE
COURT OF APPEALS, SECOND CIRCUIT, AFFIRMED.  FN1 

THE JEFFERSON CASE:  PLAINTIFF, WHILE IN THE ARMY, WAS REQUIRED TO
UNDERGO AN ABDOMINAL OPERATION.  ABOUT EIGHT MONTHS LATER, IN THE
COURSE OF ANOTHER OPERATION AFTER PLAINTIFF WAS DISCHARGED, A TOWEL 30
INCHES LONG BY 18 INCHES WIDE, MARKED "MEDICAL DEPARTMENT U.S. ARMY,"
WAS DISCOVERED AND REMOVED FROM HIS STOMACH.  THE COMPLAINT ALLEGED
THAT IT WAS NEGLIGENTLY LEFT THERE BY THE ARMY SURGEON.  THE DISTRICT
COURT, BEING DOUBTFUL OF THE LAW, REFUSED WITHOUT PREJUDICE THE
GOVERNMENT'S PRETRIAL MOTION TO DISMISS THE COMPLAINT.  FN2  AFTER
TRIAL, FINDING NEGLIGENCE AS A FACT, JUDGE CHESNUT CAREFULLY REEXAMINED
THE ISSUE OF LAW AND CONCLUDED THAT THE ACT DOES NOT CHARGE THE UNITED
STATES WITH LIABILITY IN THIS TYPE OF CASE.  FN3  THE COURT OF APPEALS,
FOURTH CIRCUIT, AFFIRMED.  FN4 

THE GRIGGS CASE:  THE DISTRICT COURT DISMISSED THE COMPLAINT OF
GRIGGS' EXECUTRIX, WHICH ALLEGED THAT WHILE ON ACTIVE DUTY HE MET DEATH
BECAUSE OF NEGLIGENT AND UNSKILLFUL MEDICAL TREATMENT BY ARMY
SURGEONS.  THE COURT OF APPEALS, TENTH CIRCUIT, REVERSED AND, ONE JUDGE
DISSENTING, HELD THAT THE COMPLAINT STATED A CAUSE OF ACTION UNDER THE
ACT.  FN5 

THE COMMON FACT UNDERLYING THE THREE CASES IS THAT EACH CLAIMANT,
WHILE ON ACTIVE DUTY AND NOT ON FURLOUGH, SUSTAINED INJURY DUE TO
NEGLIGENCE OF OTHERS IN THE ARMED FORCES.  THE ONLY ISSUE OF LAW RAISED
IS WHETHER THE TORT CLAIMS ACT EXTENDS ITS REMEDY TO ONE SUSTAINING
"INCIDENT TO THE SERVICE" WHAT UNDER OTHER CIRCUMSTANCES WOULD BE AN
ACTIONABLE WRONG.  THIS IS THE "WHOLLY DIFFERENT CASE" RESERVED FROM
OUR DECISION IN BROOKS V. UNITED STATES, 337 U.S. 49, 52. 

THERE ARE FEW GUIDING MATERIALS FOR OUR TASK OF STATUTORY
CONSTRUCTION.  NO COMMITTEE REPORTS OR FLOOR DEBATES DISCLOSE WHAT
EFFECT THE STATUTE WAS DESIGNED TO HAVE ON THE PROBLEM BEFORE US, OR
THAT IT EVEN WAS IN MIND.  UNDER THESE CIRCUMSTANCES, NO CONCLUSION CAN
BE ABOVE CHALLENGE, BUT IF WE MISINTERPRET THE ACT, AT LEAST CONGRESS
POSSESSES A READY REMEDY. 

WE DO NOT OVERLOOK CONSIDERATIONS PERSUASIVE OF LIABILITY IN THESE
CASES.  THE ACT DOES CONFER DISTRICT COURT JURISDICTION GENERALLY OVER
CLAIMS FOR MONEY DAMAGES AGAINST THE UNITED STATES FOUNDED ON
NEGLIGENCE.  28 U.S.C. SEC. 1346(B).  IT DOES CONTEMPLATE THAT THE
GOVERNMENT WILL SOMETIMES RESPOND FOR NEGLIGENCE OF MILITARY PERSONNEL,
FOR IT DEFINES "EMPLOYEE OF THE GOVERNMENT" TO INCLUDE "MEMBERS OF THE
MILITARY OR NAVAL FORCES OF THE UNITED STATES," AND PROVIDES THAT
"'ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT', IN THE CASE OF
A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES, MEANS
ACTING IN LINE OF DUTY."  28 U.S.C. SEC. 2671.  ITS EXCEPTIONS MIGHT
ALSO IMPLY INCLUSION OF CLAIMS SUCH AS WE HAVE HERE.  28 U.S.C. SEC.
2680(J) EXCEPTS "ANY CLAIM ARISING OUT OF THE COMBATANT ACTIVITIES OF
THE MILITARY OR NAVAL FORCES, OR THE COAST GUARD, DURING TIME OF WAR",
FROM WHICH IT IS SAID WE SHOULD INFER ALLOWANCE OF CLAIMS ARISING FROM
NONCOMBAT ACTIVITIES IN PEACE.  SECTION 2680(K) EXCLUDES "ANY CLAIM
ARISING IN A FOREIGN COUNTRY."  SIGNIFICANCE ALSO HAS BEEN ATTRIBUTED
IN THESE CASES, AS IN THE BROOKS CASE, SUPRA, P. 51, TO THE FACT THAT
EIGHTEEN TORT CLAIMS BILLS WERE INTRODUCED IN CONGRESS BETWEEN 1925 AND
1935 AND ALL BUT TWO EXPRESSLY DENIED RECOVERY TO MEMBERS OF THE ARMED
FORCES; BUT THE BILL ENACTED AS THE PRESENT TORT CLAIMS ACT FROM ITS
INTRODUCTION MADE NO EXCEPTION.  WE ALSO ARE REMINDED THAT THE BROOKS
CASE, IN SPITE OF ITS RESERVATION OF SERVICE-CONNECTED INJURIES,
INTERPRETS THE ACT TO COVER CLAIMS NOT INCIDENTAL TO SERVICE, AND IT IS
ARGUED THAT MUCH OF ITS REASONING IS AS APT TO IMPOSE LIABILITY IN
FAVOR OF A MAN ON DUTY AS IN FAVOR OF ONE ON LEAVE.  THESE
CONSIDERATIONS, IT IS SAID, SHOULD PERSUADE US TO CAST UPON CONGRESS,
AS AUTHOR OF THE CONFUSION, THE TASK OF QUALIFYING AND CLARIFYING ITS
LANGUAGE IF THE LIABILITY HERE ASSERTED SHOULD PROVE SO DEPLETING OF
THE PUBLIC TREASURY AS THE GOVERNMENT FEARS. 

THIS ACT, HOWEVER, SHOULD BE CONSTRUED TO FIT, SO FAR AS WILL COMPORT
WITH ITS WORDS, INTO THE ENTIRE STATUTORY SYSTEM OF REMEDIES AGAINST
THE GOVERNMENT TO MAKE A WORKABLE, CONSISTENT AND EQUITABLE WHOLE.  THE
TORT CLAIMS ACT WAS NOT AN ISOLATED AND SPONTANEOUS FLASH OF
CONGRESSIONAL GENEROSITY.  IT MARKS THE CULMINATION OF A LONG EFFORT TO
MITIGATE UNJUST CONSEQUENCES OF SOVEREIGN IMMUNITY FROM SUIT.  WHILE
THE POLITICAL THEORY THAT THE KING COULD DO NO WRONG WAS REPUDIATED IN
AMERICA, A LEGAL DOCTRINE DERIVED FROM IT THAT THE CROWN IS IMMUNE FROM
ANY SUIT TO WHICH IT HAS NOT CONSENTED  FN6  WAS INVOKED ON BEHALF OF
THE REPUBLIC AND APPLIED BY OUR COURTS AS VIGOROUSLY AS IT HAD BEEN ON
BEHALF OF THE CROWN.  FN7  AS THE FEDERAL GOVERNMENT EXPANDED ITS
ACTIVITIES, ITS AGENTS CAUSED A MULTIPLYING NUMBER OF REMEDILESS WRONGS
- WRONGS WHICH WOULD HAVE BEEN ACTIONABLE IF INFLICTED BY AN INDIVIDUAL
OR A CORPORATION BUT REMEDILESS SOLELY BECAUSE THEIR PERPETRATOR WAS AN
OFFICER OR EMPLOYEE OF THE GOVERNMENT.  RELIEF WAS OFTEN SOUGHT AND
SOMETIMES GRANTED THROUGH PRIVATE BILLS IN CONGRESS, THE NUMBER OF
WHICH STEADILY INCREASED AS GOVERNMENT ACTIVITY INCREASED.  THE VOLUME
OF THESE PRIVATE BILLS, THE INADEQUACY OF CONGRESSIONAL MACHINERY FOR
DETERMINATION OF FACTS, THE IMPORTUNITIES TO WHICH CLAIMANTS SUBJECTED
MEMBERS OF CONGRESS, AND THE CAPRICIOUS RESULTS, LED TO A STRONG DEMAND
THAT CLAIMS FOR TORT WRONGS BE SUBMITTED TO ADJUDICATION.  CONGRESS
ALREADY HAD WAIVED IMMUNITY AND MADE THE GOVERNMENT ANSWERABLE FOR
BREACHES OF ITS CONTRACTS AND CERTAIN OTHER TYPES OF CLAIMS.  FN8  AT
LAST, IN CONNECTION WITH THE REORGANIZATION ACT, IT WAIVED IMMUNITY AND
TRANSFERRED THE BURDEN OF EXAMINING TORT CLAIMS TO THE COURTS.  THE
PRIMARY PURPOSE OF THE ACT WAS TO EXTEND A REMEDY TO THOSE WHO HAD BEEN
WITHOUT; IF IT INCIDENTALLY BENEFITED THOSE ALREADY WELL PROVIDED FOR,
IT APPEARS TO HAVE BEEN UNINTENTIONAL.  CONGRESS WAS SUFFERING FROM NO
PLAGUE OF PRIVATE BILLS ON THE BEHALF OF MILITARY AND NAVAL PERSONNEL,
BECAUSE A COMPREHENSIVE SYSTEM OF RELIEF HAD BEEN AUTHORIZED FOR THEM
AND THEIR DEPENDENTS BY STATUTE. 

LOOKING TO THE DETAIL OF THE ACT, IT IS TRUE THAT IT PROVIDES,
BROADLY, THAT THE DISTRICT COURT "SHALL HAVE EXCLUSIVE JURISDICTION OF
CIVIL ACTIONS ON CLAIMS AGAINST THE UNITED STATES, FOR MONEY DAMAGES
...  "  FN9  THIS CONFERS JURISDICTION TO RENDER JUDGMENT UPON ALL SUCH
CLAIMS.  BUT IT DOES NOT SAY THAT ALL CLAIMS MUST BE ALLOWED. 
JURISDICTION IS NECESSARY TO DENY A CLAIM ON ITS MERITS AS MATTER OF
LAW AS MUCH AS TO ADJUDGE THAT LIABILITY EXISTS.  WE INTERPRET THIS
LANGUAGE TO MEAN ALL ITS SAYS, BUT NO MORE.  JURISDICTION OF THE
DEFENDANT NOW EXISTS WHERE THE DEFENDANT WAS IMMUNE FROM SUIT BEFORE;
IT REMAINS FOR COURTS, IN EXERCISE OF THEIR JURISDICTION, TO DETERMINE
WHETHER ANY CLAIM IS RECOGNIZABLE IN LAW. 

FOR THIS PURPOSE, THE ACT GOES ON TO PRESCRIBE THE TEST OF ALLOWABLE
CLAIMS, WHICH IS, "THE UNITED STATES SHALL BE LIABLE  ...  IN THE SAME
MANNER AND TO THE SAME EXTENT AS A PRIVATE INDIVIDUAL UNDER LIKE
CIRCUMSTANCES  ...  ," WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE.  28
U.S.C. SEC. 2674.  IT WILL BE SEEN THAT THIS IS NOT THE CREATION OF NEW
CAUSES OF ACTION BUT ACCEPTANCE OF LIABILITY UNDER CIRCUMSTANCES THAT
WOULD BRING PRIVATE LIABILITY INTO EXISTENCE.  THIS, WE THINK, EMBODIES
THE SAME IDEA THAT ITS ENGLISH EQUIVALENT ENACTED IN 1947(CORWN
PROCEEDINGS ACT 1947; 10 AND 11 GEO. VI, C. 44, P. 863) EXPRESSED,
"WHERE ANY PERSON HAS A CLAIM AGAINST THE CROWN AFTER THE COMMENCEMENT
OF THIS ACT, AND, IF THIS ACT HAD NOT BEEN PASSED, THE CLAIM MIGHT HAVE
BEEN ENFORCED, SUBJECT TO THE GRANT  ...  " OF CONSENT TO BE SUED, THE
CLAIM MAY NOW BE ENFORCED WITHOUT SPECIFIC CONSENT.  ONE OBVIOUS
SHORTCOMING IN THESE CLAIMS IS THAT PLAINTIFFS CAN POINT TO NO
LIABILITY OF A "PRIVATE INDIVIDUAL" EVEN REMOTELY ANALOGOUS TO THAT
WHICH THEY ARE ASSERTING AGAINST THE UNITED STATES.  WE KNOW OF NO
AMERICAN LAW WHICH EVER HAS PERMITTED A SOLDIER TO RECOVER FOR
NEGLIGENCE, AGAINST EITHER HIS SUPERIOR OFFICERS OR THE GOVERNMENT HE
IS SERVING.  FN10  NOR IS THERE ANY LIABILITY "UNDER LIKE
CIRCUMSTANCES," FOR NO PRIVATE INDIVIDUAL HAS POWER TO CONSCRIPT OR
MOBILIZE A PRIVATE ARMY WITH SUCH AUTHORITIES OVER PERSONS AS THE
GOVERNMENT VESTS IN ECHELONS OF COMMAND.  THE NEAREST PARALLEL, EVEN IF
WE WERE TO TREAT "PRIVATE INDIVIDUAL" AS INCLUDING A STATE, WOULD BE
THE RELATIONSHIP BETWEEN THE STATES AND THEIR MILITIA.  BUT IF WE
INDULGE PLAINTIFFS THE BENEFIT OF THIS COMPARISON, CLAIMANTS CITE US NO
STATE, AND WE KNOW OF NONE, WHICH HAS PERMITTED MEMBERS OF ITS MILITIA
TO MAINTAIN TORT ACTIONS FOR INJURIES SUFFERED IN THE SERVICE, AND IN
AT LEAST ONE STATE THE CONTRARY HAS BEEN HELD TO BE THE CASE.  FN11  IT
IS TRUE THAT IF WE CONSIDER RELEVANT ONLY A PART OF THE CIRCUMSTANCES
AND IGNORE THE STATUS OF BOTH THE WRONGED AND THE WRONGDOER IN THESE
CASES WE FIND ANALOGOUS PRIVATE LIABILITY.  IN THE USUAL CIVILIAN
DOCTOR AND PATIENT RELATIONSHIP, THERE IS OF COURSE A LIABILITY FOR
MALPRACTICE.  AND A LANDLORD WOULD UNDOUBTEDLY BE HELD LIABLE IF AN
INJURY OCCURRED TO A TENANT AS THE RESULT OF A NEGLIGENTLY MAINTAINED
HEATING PLANT.  BUT 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. 

IT IS NOT WITHOUT SIGNIFICANCE AS TO WHETHER THE ACT SHOULD BE
CONSTRUED TO APPLY TO SERVICE-CONNECTED INJURIES THAT IT MAKES "  ...
THE LAW OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED" GOVERN ANY
CONSEQUENT LIABILITY.  28 U.S.C. SEC. 1346(B).  THIS PROVISION
RECOGNIZES AND ASSIMILATES INTO FEDERAL LAW THE RULES OF SUBSTANTIVE
LAW OF THE SEVERAL STATES, AMONG WHICH DIVERGENCIES ARE NOTORIOUS. 
THIS PERHAPS IS FAIR ENOUGH WHEN THE CLAIMANT IS NOT ON DUTY OR IS FREE
TO CHOOSE HIS OWN HABITAT AND THEREBY LIMIT THE JURISDICTION IN WHICH
IT WILL BE POSSIBLE FOR FEDERAL ACTIVITIES TO CAUSE HIM INJURY.  THAT
HIS TORT CLAIMS SHOULD BE GOVERNED BY THE LAW OF THE LOCATION WHERE HE
HAS ELECTED TO BE IS JUST AS FAIR WHEN THE DEFENDANT IS THE GOVERNMENT
AS WHEN THE DEFENDANT IS A PRIVATE INDIVIDUAL.  BUT A SOLDIER ON ACTIVE
DUTY HAS NO SUCH CHOICE AND MUST SERVE ANY PLACE OR, UNDER MODERN
CONDITIONS, ANY NUMBER OF PLACES IN QUICK SUCCESSION IN THE FORTY-EIGHT
STATES, THE CANAL ZONE, OR ALASKA, OR HAWAII, OR ANY OTHER TERRITORY OF
THE UNITED STATES.  THAT THE GEOGRAPHY OF AN INJURY SHOULD SELECT THE
LAW TO BE APPLIED TO HIS TORT CLAIMS MAKES NO SENSE.  WE CANNOT IGNORE
THE FACT THAT MOST STATES HAVE ABOLISHED THE COMMON-LAW ACTION FOR
DAMAGES BETWEEN EMPLOYER AND EMPLOYEE AND SUPERSEDED IT WITH WORKMEN'S
COMPENSATION STATUTES WHICH PROVIDE, IN MOST INSTANCES, THE SOLE BASIS
OF LIABILITY.  ABSENT THIS, OR WHERE SUCH STATUTES ARE INAPPLICABLE,
STATES HAVE DIFFERING PROVISIONS AS TO LIMITATIONS OF LIABILITY AND
DIFFERENT DOCTRINES AS TO ASSUMPTION OF RISK, FELLOW-SERVANT RULES AND
CONTRIBUTORY OR COMPARATIVE NEGLIGENCE.  IT WOULD HARDLY BE A RATIONAL
PLAN OF PROVIDING FOR THOSE DISABLED IN SERVICE BY OTHERS IN SERVICE TO
LEAVE THEM DEPENDENT UPON GEOGRAPHIC CONSIDERATIONS OVER WHICH THEY
HAVE NO CONTROL AND TO LAWS WHICH FLUCTUATE IN EXISTENCE AND VALUE. 

THE RELATIONSHIP BETWEEN THE GOVERNMENT AND MEMBERS OF ITS ARMED
FORCES IS "DISTINCTIVELY FEDERAL IN CHARACTER," AS THIS COURT
RECOGNIZED IN UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, WHEREIN
THE GOVERNMENT UNSUCCESSFULLY SOUGHT TO RECOVER FOR LOSSES INCURRED BY
VIRTUE OF INJURIES TO A SOLDIER.  THE CONSIDERATIONS WHICH LEAD TO THAT
DECISION APPLY WITH EVEN GREATER FORCE TO THIS CASE:    "  ...  TO
WHATEVER EXTENT STATE LAW MAY APPLY TO GOVERN THE RELATIONS BETWEEN
SOLDIERS OR OTHERS IN THE ARMED FORCES AND PERSONS OUTSIDE THEM OR
NONFEDERAL GOVERNMENTAL AGENCIES, THE SCOPE, NATURE, LEGAL INCIDENTS
AND CONSEQUENCES OF THE RELATION BETWEEN PERSONS IN SERVICE AND THE
GOVERNMENT ARE FUNDAMENTALLY DERIVED FROM FEDERAL SOURCES AND GOVERNED
BY FEDERAL AUTHORITY.  SEE TARBLE'S CASE, 13 WALL.  397; KURTZ V.
MOFFITT, 115 U.S. 487.  ...  "  PP. 305-306. 

NO FEDERAL LAW RECOGNIZES A RECOVERY SUCH AS CLAIMANTS SEEK.  THE
MILITARY PERSONNEL CLAIMS ACT, 31 U.S.C. SEC. 223B (NOW SUPERSEDED BY
28 U.S.C. SEC. 2672), PERMITTED RECOVERY IN SOME CIRCUMSTANCES, BUT IT
SPECIFICALLY EXCLUDED CLAIMS OF MILITARY PERSONNEL "INCIDENT TO THEIR
SERVICE." 

THIS COURT, IN DECIDING CLAIMS FOR WRONGS INCIDENT TO SERVICE UNDER
THE TORT CLAIMS ACT, CANNOT ESCAPE ATTRIBUTING SOME BEARING UPON IT TO
ENACTMENTS BY CONGRESS WHICH PROVIDE SYSTEMS OF SIMPLE, CERTAIN, AND
UNIFORM COMPENSATION FOR INJURIES OR DEATH OF THOSE IN ARMED SERVICES. 
FN12  WE MIGHT SAY THAT THE CLAIMANT MAY (A) ENJOY BOTH TYPES OF
RECOVERY, OR (B) ELECT WHICH TO PURSUE, THEREBY WAIVING THE OTHER, OR
(C) PURSUE BOTH, CREDITING THE LARGER LIABILITY WITH THE PROCEEDS OF
THE SMALLER, OR (D) THAT THE COMPENSATION AND PENSION REMEDY EXCLUDES
THE TORT REMEDY.  THERE IS AS MUCH STATUTORY AUTHORITY FOR ONE AS FOR
ANOTHER OF THESE CONCLUSIONS.  IF CONGRESS HAD CONTEMPLATED THAT THIS
TORT ACT WOULD BE HELD TO APPLY IN CASES OF THIS KIND, IT IS DIFFICULT
TO SEE WHY IT SHOULD HAVE OMITTED ANY PROVISION TO ADJUST THESE TWO
TYPES OF REMEDY TO EACH OTHER.  THE ABSENCE OF ANY SUCH ADJUSTMENT IS
PERSUASIVE THAT THERE WAS NO AWARENESS THAT THE ACT MIGHT BE
INTERPRETED TO PERMIT RECOVERY FOR INJURIES INCIDENT TO MILITARY
SERVICE. 

A SOLDIER IS AT PECULIAR DISADVANTAGE IN LITIGATION.  FN13  LACK OF
TIME AND MONEY, THE DIFFICULTY IF NOT IMPOSSIBILITY OF PROCURING
WITNESSES, ARE ONLY A FEW OF THE FACTORS WORKING TO HIS DISADVANTAGE. 
AND THE FEW CASES CHARGING SUPERIOR OFFICERS OR THE GOVERNMENT WITH
NEGLECT OR MISCONDUCT WHICH HAVE BEEN BROUGHT SINCE THE TORT CLAIMS
ACT, OF WHICH THE PRESENT ARE TYPICAL, HAVE EITHER BEEN SUITS BY WIDOWS
OR SURVIVING DEPENDENTS, OR HAVE BEEN BROUGHT AFTER THE INDIVIDUAL WAS
DISCHARGED.  FN14  THE COMPENSATION SYSTEM, WHICH NORMALLY REQUIRES NO
LITIGATION, IS NOT NEGLIGIBLE OR NIGGARDLY, AS THESE CASES
DEMONSTRATE.  THE RECOVERIES COMPARE EXTREMELY FAVORABLY WITH THOSE
PROVIDED BY MOST WORKMEN'S COMPENSATION STATUTES.  IN THE JEFFERSON
CASE, THE DISTRICT COURT CONSIDERED ACTUAL AND PROSPECTIVE PAYMENTS BY
THE VETERANS' ADMINISTRATION AS DIMINUTION OF THE VERDICT.  PLAINTIFF
RECEIVED $3,645.50 TO THE DATE OF THE COURT'S COMPUTATION AND ON
ESTIMATED LIFE EXPECTANCY UNDER EXISTING LEGISLATION WOULD
PROSPECTIVELY RECEIVE $31,947 IN ADDITION.  IN THE GRIGGS CASE, THE
WIDOW, IN THE TWO-YEAR PERIOD AFTER HER HUSBAND'S DEATH, RECEIVED
PAYMENTS IN EXCESS OF $2,100.  IN ADDITION, SHE RECEIVED $2,695,
REPRESENTING THE SIX MONTHS' DEATH GRATUITY UNDER THE ACT OF DECEMBER
17, 1919, AS AMENDED, 41 STAT. 367, 57 STAT. 599, 10 U.S.C. SEC. 903. 
IT IS ESTIMATED THAT HER TOTAL FUTURE PENSION PAYMENTS WILL AGGREGATE
$18,000.  THUS THE WIDOW WILL RECEIVE AN AMOUNT IN EXCESS OF $22,000
FROM GOVERNMENT GRATUITIES, WHEREAS SHE SOUGHT AND COULD SEEK UNDER
STATE LAW ONLY $15,000, THE MAXIMUM PERMITTED BY ILLINOIS FOR DEATH. 

IT IS CONTENDED THAT ALL THESE CONSIDERATIONS WERE BEFORE THE COURT
IN THE BROOKS CASE AND THAT ALLOWANCE OF RECOVERY TO BROOKS REQUIRES A
SIMILAR HOLDING OF LIABILITY HERE.  THE ACTUAL HOLDING IN THE BROOKS
CASE CAN SUPPORT LIABILITY HERE ONLY BY IGNORING THE VITAL DISTINCTION
THERE STATED.  THE INJURY TO BROOKS DID NOT ARISE OUT OF OR IN THE
COURSE OF MILITARY DUTY.  BROOKS WAS ON FURLOUGH, DRIVING ALONG THE
HIGHWAY, UNDER COMPULSION OF NO ORDERS OR DUTY AND ON NO MILITARY
MISSION.  A GOVERNMENT OWNED AND OPERATED VEHICLE COLLIDED WITH HIM. 
BROOKS' FATHER, RIDING IN THE SAME CAR, RECOVERED FOR HIS INJURIES AND
THE GOVERNMENT DID NOT FURTHER CONTEST THE JUDGMENT BUT CONTENDED THAT
THERE COULD BE NO LIABILITY TO THE SONS, SOLELY BECAUSE THEY WERE IN
THE ARMY.  THIS COURT REJECTED THE CONTENTION, PRIMARILY BECAUSE
BROOKS' RELATIONSHIP WHILE ON LEAVE WAS NOT ANALOGOUS TO THAT OF A
SOLDIER INJURED WHILE PERFORMING DUTIES UNDER ORDERS. 

WE CONCLUDE THAT THE GOVERNMENT IS NOT LIABLE UNDER THE FEDERAL TORT
CLAIMS ACT FOR INJURIES TO SERVICEMEN WHERE THE INJURIES ARISE OUT OF
OR ARE IN THE COURSE OF ACTIVITY INCIDENT TO SERVICE.  WITHOUT
EXCEPTION, THE RELATIONSHIP OF MILITARY PERSONNEL TO THE GOVERNMENT HAS
BEEN GOVERNED EXCLUSIVELY BY FEDERAL LAW.  WE DO NOT THINK THAT
CONGRESS, IN DRAFTING THIS ACT, CREATED A NEW CAUSE OF ACTION DEPENDENT
ON LOCAL LAW FOR SERVICE-CONNECTED INJURIES OR DEATH DUE TO
NEGLIGENCE.  WE CANNOT IMPUTE TO CONGRESS SUCH A RADICAL DEPARTURE FROM
ESTABLISHED LAW IN THE ABSENCE OF EXPRESS CONGRESSIONAL COMMAND. 
ACCORDINGLY, THE JUDGMENTS IN THE FERES AND JEFFERSON CASES ARE
AFFIRMED AND THAT IN THE GRIGGS CASE IS REVERSED.  NOS. 9 AND 29,
AFFIRMED.  NO. 31, REVERSED. 

FN1  177 F.2D 535. 

FN2  74 F.SUPP.  209. 

FN3  77 F.SUPP.  706. 

FN4  178 F.2D 518. 

FN5  178 F.2D 1. 

FN6  THE CROWN HAS RECENTLY SUBMITTED ITSELF TO SUIT, SEE POST, P.
141. 

FN7  UNITED STATES V. MCLEMORE, 4 HOW.  286; REESIDE V. WALKER, 11
HOW.  272, 290; ICKES V. FOX, 300 U.S. 82, 96. 

FN8  28 U.S.C. SEC. 1491. 

FN9  28 U.S.C. SEC. 1346(B).  THE PROVISIONS OF THE TORT CLAIMS ACT
ARE NOW FOUND IN TITLE 28, SECS. 1291, 1346, 1402, 1504, 2110, 2401,
2402, 2411, 2412, 2671-2680.  IN RECODIFYING TITLE 28 OF THE U.S.C.
CHANGES IN LANGUAGE WERE MADE.  THE TORT CLAIMS ACT, AS ORIGINALLY
ENACTED, 60 STAT. 843, PROVIDED IN SEC. 410 THAT THE DISTRICT COURT
"SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR, DETERMINE, AND RENDER
JUDGMENT ON ANY CLAIM AGAINST THE UNITED STATES, FOR MONEY ONLY  ...." 
WE ATTRIBUTE TO THIS CHANGE OF LANGUAGE NO SUBSTANTIVE CHANGE OF LAW. 

FN10  CF. DINSMAN V. WILKES, 12 HOW.  390, AND WEAVER V. WARD, HOBART
135, 80 ENG. REP. 284(1616), AS TO INTENTIONAL TORTS. 

FN11  GOLDSTEIN V. NEW YORK, 281 N.Y. 396, 24 N.E.2D 97. 

FN12  48 STAT. 8(1933), AS AMENDED, 38 U.S.C. SEC. 701(1946); 48
STAT. 11(1933), AS AMENDED, 38 U.S.C. SEC. 718(1946); 55 STAT.
608(1941), 38 U.S.C. SEC. 725(1946); 57 STAT. 558(1943), AS AMENDED, 38
U.S.C. SEC. 731(1946); 62 STAT. 1219, 1220(1948), 38 U.S.C. (SUPP. III)
SECS. 740, 741(1950). 

FN13  RELIEF WAS PROVIDED IN THE SOLDIERS' AND SAILORS' CIVIL RELIEF
ACT OF 1940, 54 STAT. 1178, 50 U.S.C. APP. SEC. 501 ET SEQ. 

FN14  BROOKS V. UNITED STATES, SUPRA (DISCHARGED AT TIME OF SUIT);
SANTANA V. UNITED STATES, 175 F.2D 320(C.A. 1ST CIR.)(SUIT BY SOLE
HEIRS); OSTRANDER V. UNITED STATES, 178 F.2D 923(C.A.2D CIR.) (SUIT BY
WIDOW); SAMSON V. UNITED STATES, 79 F.SUPP.  406(D.C. S.D.N.Y.)(SUIT BY
ADMINISTRATOR); ALANSKY V. NORTHWEST AIRLINES, 77 F.SUPP.  556(D.C.D.
MONT.)(SUIT BY WIDOW AND SON). 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 
..END :






A. & P. TEA CO. V. SUPERMARKET CORP., 340 U.S. 147 


NO. 32.  ARGUED OCTOBER 18-19, 1950.  - DECIDED DECEMBER 4, 1950.  - 179
F.2D 636, REVERSED. 


CLAIMS 4, 5 AND 6 OF THE TURNHAM PATENT NO. 2,242,408, FOR A CASHIER'S
COUNTER AND MOVABLE FRAME FOR "CASH AND CARRY" GROCERY STORES, HELD
INVALID FOR WANT OF INVENTION.  PP. 148-154. 

(A)  THE EXTENSION OF THE COUNTER ALONE WAS NOT SUFFICIENT TO SUSTAIN
THE PATENT, UNLESS, TOGETHER WITH THE OTHER OLD ELEMENTS, IT MADE UP A
NEW COMBINATION PATENTABLE AS SUCH.  PP. 149-150. 

(B)  THE MERE COMBINATION OF A NUMBER OF OLD PARTS OR ELEMENTS WHICH,
IN COMBINATION, PERFORM OR PRODUCE NO NEW OR DIFFERENT FUNCTION OR
OPERATION THAN THAT THERETOFORE PERFORMED OR PRODUCED BY THEM, IS NOT
PATENTABLE INVENTION.  P. 151. 

(C)  THIS PATENTEE HAS ADDED NOTHING TO THE TOTAL STOCK OF KNOWLEDGE,
BUT HAS MERELY BROUGHT TOGETHER SEGMENTS OF PRIOR ART AND CLAIMS THEM
IN CONGREGATION AS A MONOPOLY.  P. 153. 

(D)  COMMERCIAL SUCCESS WITHOUT INVENTION DOES NOT MAKE
PATENTABILITY.  P. 153. 

(E)  THE CONCURRENCE OF THE TWO COURTS BELOW IN HOLDING THE PATENT
CLAIMS VALID DOES NOT PRECLUDE THIS COURT FROM OVERRULING THEM, WHERE,
AS IN THIS CASE, A STANDARD OF INVENTION APPEARS TO HAVE BEEN USED THAT
IS LESS EXACTING THAN THAT REQUIRED WHERE A COMBINATION IS MADE UP
ENTIRELY OF OLD COMPONENTS.  PP. 153-154. 

GREAT ATLANTIC & PACIFIC TEA CO. V. SUPERMARKET EQUIPMENT CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

THE DISTRICT COURT SUSTAINED THE VALIDITY OF CERTAIN PATENT CLAIMS. 
78 F.SUPP.  388.  THE COURT OF APPEALS AFFIRMED.  179 F.2D 636.  THIS
COURT GRANTED CERTIORARI.  339 U.S. 947.  REVERSED, P. 154. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

TWO COURTS BELOW HAVE CONCURRED IN HOLDING THREE PATENT CLAIMS TO BE
VALID,  FN1  AND IT IS STIPULATED THAT, IF VALID, THEY HAVE BEEN
INFRINGED.  THE ISSUE, FOR THE RESOLUTION OF WHICH WE GRANTED
CERTIORARI,  FN2  IS WHETHER THEY APPLIED CORRECT CRITERIA OF
INVENTION.  WE HOLD THAT THEY HAVE NOT, AND THAT BY STANDARDS
APPROPRIATE FOR A COMBINATION PATENT THESE CLAIMS ARE INVALID. 

STATED WITHOUT ARTIFICE, THE CLAIMS ASSERT INVENTION OF A CASHIER'S
COUNTER EQUIPPED WITH A THREE-SIDED FRAME, OR RACK, WITH NO TOP OR
BOTTOM, WHICH, WHEN PUSHED OR PULLED, WILL MOVE GROCERIES DEPOSITED
WITHIN IT BY A CUSTOMER TO THE CHECKING CLERK AND LEAVE THEM THERE WHEN
IT IS PUSHED BACK TO REPEAT THE OPERATION.  IT IS KEPT ON THE COUNTER
BY GUIDES.  THAT THE RESULTANT DEVICE WORKS AS CLAIMED, SPEEDS THE
CUSTOMER ON HIS WAY, REDUCES CHECKING COSTS FOR THE MERCHANT, HAS BEEN
WIDELY ADOPTED AND SUCCESSFULLY USED, APPEAR BEYOND DISPUTE. 

THE DISTRICT COURT EXPLICITLY FOUND THAT EACH ELEMENT IN THIS DEVICE
WAS KNOWN TO PRIOR ART. "HOWEVER," IT FOUND, "THE CONCEPTION OF A
COUNTER WITH AN EXTENSION TO RECEIVE A BOTTOMLESS SELF-UNLOADING TRAY
WITH WHICH TO PUSH THE CONTENTS OF THE TRAY IN FRONT OF THE CASHIER WAS
A DECIDEDLY NOVEL FEATURE AND CONSTITUTES A NEW AND USEFUL
COMBINATION."  FN3 

THE COURT OF APPEALS REGARDED THIS FINDING OF INVENTION AS ONE OF
FACT, SUSTAINED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED IT AS NOT CLEARLY
ERRONEOUS.  IT IDENTIFIED NO OTHER NEW OR DIFFERENT ELEMENT TO
CONSTITUTE INVENTION AND OVERCAME ITS DOUBTS BY CONSIDERATION OF THE
NEED FOR SOME SUCH DEVICE AND EVIDENCE OF COMMERCIAL SUCCESS OF THIS
ONE. 

SINCE THE COURTS BELOW PERCEIVED INVENTION ONLY IN AN EXTENSION OF
THE COUNTER, WE MUST FIRST DETERMINE WHETHER THEY WERE RIGHT IN SO
DOING.  WE THINK NOT.  IN THE FIRST PLACE, THE EXTENSION IS NOT
MENTIONED IN THE CLAIMS, EXCEPT, PERHAPS, BY A CONSTRUCTION TOO
STRAINED TO BE CONSISTENT WITH THE CLARITY REQUIRED OF CLAIMS WHICH
DEFINE THE BOUNDARIES OF A PATENT MONOPOLY.  38 STAT. 958, 35 U.S.C.
SEC. 33; UNITED CARBON CO. V. BINNEY & SMITH CO., 317 U.S. 228; GENERAL
ELECTRIC CO. V. WABASH CORP., 304 U.S. 364.  IN THE SECOND PLACE, WERE
WE TO TREAT THE EXTENSION AS ADEQUATELY DISCLOSED, IT WOULD NOT AMOUNT
TO AN INVENTION.  WE NEED NOT GO SO FAR AS TO SAY THAT INVENTION NEVER
CAN RESIDE IN MERE CHANGE OF DIMENSIONS OF AN OLD DEVICE, BUT CERTAINLY
IT CANNOT BE FOUND IN MERE ELONGATION OF A MERCHANT'S COUNTER - A
CONTRIVANCE WHICH, TIME OUT OF MIND, HAS BEEN OF WHATEVER LENGTH SUITED
THE MERCHANT'S NEEDS.  IN THE THIRD PLACE, IF THE EXTENSION ITSELF WERE
CONCEDED TO BE A PATENTABLE IMPROVEMENT OF THE COUNTER, AND THE CLAIMS
WERE CONSTRUED TO INCLUDE IT, THE PATENT WOULD NEVERTHELESS BE INVALID
FOR OVERCLAIMING THE INVENTION BY INCLUDING OLD ELEMENTS, UNLESS,
TOGETHER WITH ITS OTHER OLD ELEMENTS, THE EXTENSION MADE UP A NEW
COMBINATION PATENTABLE AS SUCH.  BASSICK MFG. CO. V. HOLLINGSHEAD CO.,
298 U.S. 415, 425; CARBICE CORP. V. AMERICAN PATENTS DEVELOPMENT CORP.,
283 U.S. 27.  THUS, DISALLOWING THE ONLY THING DESIGNATED BY THE TWO
COURTS AS AN INVENTION, THE QUESTION IS WHETHER THE COMBINATION CAN
SURVIVE ON ANY OTHER BASIS.  WHAT INDICIA OF INVENTION SHOULD THE
COURTS SEEK IN A CASE WHERE NOTHING TANGIBLE IS NEW, AND INVENTION, IF
IT EXISTS AT ALL, IS ONLY IN BRINGING OLD ELEMENTS TOGETHER? 

WHILE THIS COURT HAS SUSTAINED COMBINATION PATENTS,  FN4  IT NEVER
HAS VENTURED TO GIVE A PRECISE AND COMPREHENSIVE DEFINITION OF THE TEST
TO BE APPLIED IN SUCH CASES.  THE VOLUMINOUS LITERATURE WHICH THE
SUBJECT HAS EXCITED DISCLOSES CLOSES NO SUCH TEST.  FN5  IT IS AGREED
THAT THE KEY TO PATENTABILITY OF A MECHANICAL DEVICE THAT BRINGS OLD
FACTORS INTO COOPERATION IS PRESENCE OR LACK OF INVENTION.  IN COURSE
OF TIME THE PROFESSION CAME TO EMPLOY THE TERM "COMBINATION" TO IMPLY
ITS PRESENCE AND THE TERM "AGGREGATION" TO SIGNIFY ITS ABSENCE, THUS
MAKING ANTONYMS IN LEGAL ART OF WORDS WHICH IN ORDINARY SPEECH ARE MORE
NEARLY SYNONYMS.  HOWEVER USEFUL AS WORDS OF ART TO DENOTE IN SHORT
FORM THAT AN ASSEMBLY OF UNITS HAS FAILED OR HAS MET THE EXAMINATION
FOR INVENTION, THEIR EMPLOYMENT AS TESTS TO DETERMINE INVENTION RESULTS
IN NOTHING BUT CONFUSION.  THE CONCEPT OF INVENTION IS INHERENTLY
ELUSIVE WHEN APPLIED TO COMBINATION OF OLD ELEMENTS.  THIS, TOGETHER
WITH THE IMPRECISION OF OUR LANGUAGE, HAVE COUNSELLED COURTS AND TEXT
WRITERS TO BE CAUTIOUS IN AFFIRMATIVE DEFINITIONS OR RULES ON THE
SUBJECT.  FN6 

THE NEGATIVE RULE ACCRUED FROM MANY LITIGATIONS WAS CONDENSED ABOUT
AS PRECISELY AS THE SUBJECT PERMITS IN LINCOLN ENGINEERING CO. V.
STEWART-WARNER CORP., 303 U.S. 545, 549:  "THE MERE AGGREGATION OF A
NUMBER OF OLD PARTS OR ELEMENTS WHICH, IN THE AGGREGATION, PERFORM OR
PRODUCE NO NEW OR DIFFERENT FUNCTION OR OPERATION THAN THAT THERETOFORE
PERFORMED OR PRODUCED BY THEM, IS NOT PATENTABLE INVENTION."  TO THE
SAME END IS TOLEDO PRESSED STEEL CO. V. STANDARD PARTS, INC., 307 U.S.
350, AND CUNO ENGINEERING CORP. V. AUTOMATIC DEVICES CORP., 314 U.S.
84.  THE CONJUNCTION OR CONCERT OF KNOWN ELEMENTS MUST CONTRIBUTE
SOMETHING; ONLY WHEN THE WHOLE IN SOME WAY EXCEEDS THE SUM OF ITS PARTS
IS THE ACCUMULATION OF OLD DEVICES PATENTABLE.  ELEMENTS MAY, OF
COURSE, ESPECIALLY IN CHEMISTRY OR ELECTRONICS, TAKE ON SOME NEW
QUALITY OR FUNCTION FROM BEING BROUGHT INTO CONCERT, BUT THIS IS NOT A
USUAL RESULT OF UNITING ELEMENTS OLD IN MECHANICS.  THIS CASE IS
WANTING IN ANY UNUSUAL OR SURPRISING CONSEQUENCES FROM THE UNIFICATION
OF THE ELEMENTS HERE CONCERNED, AND THERE IS NOTHING TO INDICATE THAT
THE LOWER COURTS SCRUTINIZED THE CLAIMS IN THE LIGHT OF THIS RATHER
SEVERE TEST. 

NEITHER COURT BELOW HAS MADE ANY FINDING THAT OLD ELEMENTS WHICH MADE
UP THIS DEVICE PERFORM ANY ADDITIONAL OR DIFFERENT FUNCTION IN THE
COMBINATION THAN THEY PERFORM OUT OF IT.  THIS COUNTER DOES WHAT A
STORE COUNTER ALWAYS HAS DONE - IT SUPPORTS MERCHANDISE AT A CONVENIENT
HEIGHT WHILE THE CUSTOMER MAKES HIS PURCHASES AND THE MERCHANT HIS
SALES.  THE THREE-SIDED RACK WILL DRAW OR PUSH GOODS PUT WITHIN IT FROM
ONE PLACE TO ANOTHER - JUST WHAT ANY SUCH A RACK WOULD DO ON ANY SMOOTH
SURFACE - AND THE GUIDE RAILS KEEP IT FROM FALLING OR SLIDING OFF FROM
THE COUNTER, AS GUIDE RAILS HAVE EVER DONE.  TWO AND TWO HAVE BEEN
ADDED TOGETHER, AND STILL THEY MAKE ONLY FOUR. 

COURTS SHOULD SCRUTINIZE COMBINATION PATENT CLAIMS WITH A CARE
PROPORTIONED TO THE DIFFICULTY AND IMPROBABILITY OF FINDING INVENTION
IN AN ASSEMBLY OF OLD ELEMENTS.  THE FUNCTION OF A PATENT IS TO ADD TO
THE SUM OF USEFUL KNOWLEDGE.  PATENTS CANNOT BE SUSTAINED WHEN, ON THE
CONTRARY, THEIR EFFECT IS TO SUBTRACT FROM FORMER RESOURCES FREELY
AVAILABLE TO SKILLED ARTISANS.  A PATENT FOR A COMBINATION WHICH ONLY
UNITES OLD ELEMENTS WITH NO CHANGE IN THEIR RESPECTIVE FUNCTIONS, SUCH
AS IS PRESENTED HERE, OBVIOUSLY WITHDRAWS WHAT ALREADY IS KNOWN INTO
THE FIELD OF ITS MONOPOLY AND DIMINISHES THE RESOURCES AVAILABLE TO
SKILLFUL MEN.  THIS PATENTEE HAS ADDED NOTHING TO THE TOTAL STOCK OF
KNOWLEDGE, BUT HAS MERELY BROUGHT TOGETHER SEGMENTS OF PRIOR ART AND
CLAIMS THEM IN CONGREGATION AS A MONOPOLY. 

THE COURT OF APPEALS AND THE RESPONDENT BOTH LEAN HEAVILY ON EVIDENCE
THAT THIS DEVICE FILLED A LONG-FELT WANT AND HAS ENJOYED COMMERCIAL
SUCCESS.  BUT COMMERCIAL SUCCESS WITHOUT INVENTION WILL NOT MAKE
PATENTABILITY.  TOLEDO PRESSED STEEL CO. V. STANDARD PARTS, INC.,
SUPRA.  THE COURTS BELOW CONCURRED IN FINDING THAT EVERY ELEMENT HERE
CLAIMED (EXCEPT EXTENSION OF THE COUNTER) WAS KNOWN TO PRIOR ART. WHEN,
FOR THE FIRST TIME, THOSE ELEMENTS WERE PUT TO WORK FOR THE SUPERMARKET
TYPE OF STORES, ALTHOUGH EACH PERFORMED THE SAME MECHANICAL FUNCTION
FOR THEM THAT IT HAD BEEN KNOWN TO PERFORM, THEY PRODUCED RESULTS MORE
STRIKING, PERHAPS, THAN IN ANY PREVIOUS UTILIZATION.  TO BRING THESE
DEVICES TOGETHER AND APPLY THEM TO SAVE THE TIME OF CUSTOMER AND
CHECKER WAS A GOOD IDEA, BUT SCORES OF PROGRESSIVE IDEAS IN BUSINESS
ARE NOT PATENTABLE, AND WE CONCLUDE ON THE FINDINGS BELOW THAT THIS ONE
WAS NOT. 

IT IS URGED, HOWEVER, THAT CONCURRENCE OF TWO COURTS BELOW, IN
HOLDING THE PATENT CLAIMS VALID, CONCLUDES THIS COURT.  A RECENT
RESTATEMENT OF THE "TWO-COURT RULE" READS, "A COURT OF LAW, SUCH AS
THIS COURT IS, RATHER THAN A COURT FOR CORRECTION OF ERRORS IN FACT
FINDING, CANNOT UNDERTAKE TO REVIEW CONCURRENT FINDINGS OF FACT BY TWO
COURTS BELOW IN THE ABSENCE OF A VERY OBVIOUS AND EXCEPTIONAL SHOWING
OF ERROR."  GRAVER TANK CO. V. LINDE CO., 336 U.S. 271, 275.  THE
QUESTIONS OF GENERAL IMPORTANCE CONSIDERED HERE ARE NOT CONTINGENT UPON
RESOLVING CONFLICTING TESTIMONY, FOR THE FACTS ARE LITTLE IN DISPUTE. 
WE SET ASIDE NO FINDING OF FACT AS TO INVENTION, FOR NONE HAS BEEN MADE
EXCEPT AS TO THE EXTENSION OF THE COUNTER, WHICH CANNOT STAND AS A
MATTER OF LAW.  THE DEFECT THAT WE FIND IN THIS JUDGMENT IS THAT A
STANDARD OF INVENTION APPEARS TO HAVE BEEN USED THAT IS LESS EXACTING
THAN THAT REQUIRED WHERE A COMBINATION IS MADE UP ENTIRELY OF OLD
COMPONENTS.  IT IS ON THIS GROUND THAT THE JUDGMENT BELOW IS REVERSED. 

FN1  CLAIMS 4, 5, AND 6 OF THE TURNHAM PATENT NO. 2,242,408, WHICH
ARE INVOLVED IN THE CONTROVERSY, READ AS FOLLOWS: 

"4.  A CHECKER'S STAND INCLUDING A COUNTER OF THE CHARACTER
DESCRIBED, AN OPEN BOTTOM PUSHER FRAME THEREON, MEANS TO GUIDE SAID
FRAME IN SLIDING MOVEMENT SO THAT GOODS PLACED ON THE END OF SAID
COUNTER WITHIN SAID FRAME MAY BE PUSHED ALONG THE COUNTER IN A GROUP TO
A POSITION ADJACENT THE CHECKER BY MOVEMENT OF SAID FRAME. 

"5.  A CASHIER'S COUNTER FOR CASH AND CARRY TYPE OF GROCERY
COMPRISING A PORTION SPACED FROM THE CASHIER'S STAND AND UPON WHICH THE
MERCHANDISE MAY BE DEPOSITED AND ARRANGED, A BOTTOMLESS THREE SIDED
FRAME ON SAID PORTION AND WITHIN WHICH THE MERCHANDISE IS DEPOSITED AND
ARRANGED, MEANS WHEREBY SAID FRAME IS MOVABLE ON SAID COUNTER FROM SAID
PORTION TO A POSITION ADJACENT THE CASHIER'S STAND SO THAT THE
MERCHANDISE MAY THUS BE MOVED AS A GROUP TO A POINT WHERE IT MAY BE
CONVENIENTLY OBSERVED, COUNTED AND REGISTERED BY THE CASHIER. 

"6.  A CASHIER'S COUNTER FOR CASH AND CARRY TYPE OF GROCERY
COMPRISING A PORTION SPACED FROM THE CASHIER'S STAND AND UPON WHICH THE
MERCHANDISE MAY BE DEPOSITED AND ARRANGED, A BOTTOMLESS FRAME ON SAID
PORTION AND WITHIN WHICH THE MERCHANDISE IS DEPOSITED AND ARRANGED,
MEANS WHEREBY SAID FRAME IS MOVABLE ON SAID COUNTER FROM SAID PORTION
TO A POSITION ADJACENT THE CASHIER'S STAND SO THAT THE MERCHANDISE MAY
THUS BE MOVED AS A GROUP TO A POINT WHERE IT MAY BE CONVENIENTLY
OBSERVED, COUNTED AND REGISTERED BY THE CASHIER, SAID FRAME BEING OPEN
AT THE END ADJACENT THE CASHIER'S STAND AND READILY MOVABLE TO BE
RETURNED OVER SAID PORTION SO AS TO RECEIVE THE MERCHANDISE OF ANOTHER
CUSTOMER WHILE THE CASHIER IS OCCUPIED WITH THE PREVIOUS GROUP." 

FN2  339 U.S. 947. 

FN3  FINDING OF FACT NO. 15 OF DISTRICT JUDGE PICARD, WHOSE OPINION
APPEARS AT 78 F.SUPP.  388. 

FN4  E.G., KEYSTONE MFG. CO. V. ADAMS, 151 U.S. 139; DIAMOND RUBBER
CO. V. CONSOLIDATED TIRE CO., 220 U.S. 428. 

FN5  THE INDEX TO LEGAL PERIODICALS REVEALS NO LESS THAN SIXTY-FOUR
ARTICLES RELATING TO COMBINATION PATENTS AND THE THEORY AND PHILOSOPHY
UNDERLYING THE PATENT LAWS.  AMONG THE MANY TEXTS ARE 1 WALKER ON
PATENTS (DELLER'S ED. 1937); STEDMAN, PATENTS; TOULMIN, HANDBOOK OF
PATENTS; MERWIN, PATENTABILITY OF INVENTIONS; AMDUR, PATENT LAW AND
PRACTICE; AND 1 ROBERTS, PATENTABILITY AND PATENT INTERPRETATION. 

FN6  WITH RESPECT TO THE WORD "INVENTION," MR. JUSTICE BROWN SAID:
"THE TRUTH IS THE WORD CANNOT BE DEFINED IN SUCH MANNER AS TO AFFORD
ANY SUBSTANTIAL AID IN DETERMINING WHETHER A PARTICULAR DEVICE INVOLVES
AN EXERCISE OF THE INVENTIVE FACULTY OR NOT.  IN A GIVEN CASE WE MAY BE
ABLE TO SAY THAT THERE IS PRESENT INVENTION OF A VERY HIGH ORDER.  IN
ANOTHER WE CAN SEE THAT THERE IS LACKING THAT IMPALPABLE SOMETHING
WHICH DISTINGUISHES INVENTION FROM SIMPLE MECHANICAL SKILL.  COURTS,
ADOPTING FIXED PRINCIPLES AS A GUIDE, HAVE BY A PROCESS OF EXCLUSION
DETERMINED THAT CERTAIN VARIATIONS IN OLD DEVICES DO OR DO NOT INVOLVE
INVENTION; BUT WHETHER THE VARIATION RELIED UPON IN A PARTICULAR CASE
IS ANYTHING MORE THAN ORDINARY MECHANICAL SKILL IS A QUESTION WHICH
CANNOT BE ANSWERED BY APPLYING THE TEST OF ANY GENERAL DEFINITION." 
MCCLAIN V. ORTMAYER, 141 U.S. 419, 427. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AGREES, CONCURRING. 

IT IS WORTH EMPHASIS THAT EVERY PATENT CASE INVOLVING VALIDITY
PRESENTS A QUESTION WHICH REQUIRES REFERENCE TO A STANDARD WRITTEN INTO
THE CONSTITUTION.  ARTICLE I, SEC. 8, CONTAINS A GRANT TO THE CONGRESS
OF THE POWER TO PERMIT PATENTS TO BE ISSUED.  BUT, UNLIKE MOST OF THE
SPECIFIC POWERS WHICH CONGRESS IS GIVEN, THAT GRANT IS QUALIFIED.  THE
CONGRESS DOES NOT HAVE FREE REIN, FOR EXAMPLE, TO DECIDE THAT PATENTS
SHOULD BE EASILY OR FREELY GIVEN.  THE CONGRESS ACTS UNDER THE
RESTRAINT IMPOSED BY THE STATEMENT OF PURPOSE IN ART. I, SEC. 8.  THE
PURPOSE IS "TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS  ...  "
THE MEANS FOR ACHIEVEMENT OF THAT END IS THE GRANT FOR A LIMITED TIME
TO INVENTORS OF THE EXCLUSIVE RIGHT TO THEIR INVENTIONS.    EVERY
PATENT IS THE GRANT OF A PRIVILEGE OF EXACTING TOLLS FROM THE PUBLIC. 
THE FRAMERS PLAINLY DID NOT WANT THOSE MONOPOLIES FREELY GRANTED.  THE
INVENTION, TO JUSTIFY A PATENT, HAD TO SERVE THE ENDS OF SCIENCE - TO
PUSH BACK THE FRONTIERS OF CHEMISTRY, PHYSICS, AND THE LIKE; TO MAKE A
DISTINCTIVE CONTRIBUTION TO SCIENTIFIC KNOWLEDGE.  THAT IS WHY THROUGH
THE YEARS THE OPINIONS OF THE COURT COMMONLY HAVE TAKEN "INVENTIVE
GENIUS" AS THE TEST* .  IT IS NOT ENOUGH THAT AN ARTICLE IS NEW AND
USEFUL.  THE CONSTITUTION NEVER SANCTIONED THE PATENTING OF GADGETS. 
PATENTS SERVE A HIGHER END - THE ADVANCEMENT OF SCIENCE.  AN INVENTION
NEED NOT BE AS STARTLING AS AN ATOMIC BOMB TO BE PATENTABLE.  BUT IT
HAS TO BE OF SUCH QUALITY AND DISTINCTION THAT MASTERS OF THE
SCIENTIFIC FIELD IN WHICH IT FALLS WILL RECOGNIZE IT AS AN ADVANCE. 
MR. JUSTICE BRADLEY STATED IN ATLANTIC WORKS V. BRADY, 107 U.S. 192,
200, THE CONSEQUENCES OF A LOOSER STANDARD: 

"IT WAS NEVER THE OBJECT OF THOSE LAWS TO GRANT A MONOPOLY FOR EVERY
TRIFLING DEVICE, EVERY SHADOW OF A SHADE OF AN IDEA, WHICH WOULD
NATURALLY AND SPONTANEOUSLY OCCUR TO ANY SKILLED MECHANIC OR OPERATOR
IN THE ORDINARY PROGRESS OF MANUFACTURES.  SUCH AN INDISCRIMINATE
CREATION OF EXCLUSIVE PRIVILEGES TENDS RATHER TO OBSTRUCT THAN TO
STIMULATE INVENTION.  IT CREATES A CLASS OF SPECULATIVE SCHEMERS WHO
MAKE IT THEIR BUSINESS TO WATCH THE ADVANCING WAVE OF IMPROVEMENT, AND
GATHER ITS FOAM IN THE FORM OF PATENTED MONOPOLIES, WHICH ENABLE THEM
TO LAY A HEAVY TAX UPON THE INDUSTRY OF THE COUNTRY, WITHOUT
CONTRIBUTING ANYTHING TO THE REAL ADVANCEMENT OF THE ARTS.  IT
EMBARRASSES THE HONEST PURSUIT OF BUSINESS WITH FEARS AND APPREHENSIONS
OF CONCEALED LIENS AND UNKNOWN LIABILITIES TO LAWSUITS AND VEXATIOUS
ACCOUNTINGS FOR PROFITS MADE IN GOOD FAITH." 

*"INVENTIVE GENIUS" - MR. JUSTICE HUNT IN RECKENDORFER V. FABER, 92
U.S. 347, 357; "GENIUS OR INVENTION" - MR. CHIEF JUSTICE FULLER IN
SMITH V. WHITMAN SADDLE CO., 148 U.S. 674, 681; "INTUITIVE GENIUS" -
MR. JUSTICE BROWN IN POTTS V. CREAGER, 155 U.S. 597, 607; "INVENTIVE
GENIUS" - MR. JUSTICE STONE IN CONCRETE APPLICANCES CO. V. GOMERY, 269
U.S. 177, 185; "INVENTIVE GENIUS" - MR. JUSTICE ROBERTS IN MANTLE LAMP
CO. V. ALUMINUM PRODUCTS CO., 301 U.S. 544, 546; CUNO CORP. V.
AUTOMATIC DEVICES CORP., 314 U.S. 84, 91, "THE FLASH OF CREATIVE
GENIUS, NOT MERELY THE SKILL OF THE CALLING." 

THE STANDARD OF PATENTABILITY IS A CONSTITUTIONAL STANDARD; AND THE
QUESTION OF VALIDITY OF A PATENT IS A QUESTION OF LAW.  MAHN V.
HARWOOD, 112 U.S. 354, 358.  THE COURT FASHIONED IN GRAVER MFG. CO. V.
LINDE CO., 336 U.S. 271, 275, A RULE FOR PATENT CASES TO THE EFFECT
THAT THIS COURT WILL NOT DISTURB A FINDING OF INVENTION MADE BY TWO
LOWER COURTS, IN ABSENCE OF A VERY OBVIOUS AND EXCEPTIONAL SHOWING OF
ERROR.  THAT RULE, IMPORTED FROM OTHER FIELDS, NEVER HAD A PLACE IN
PATENT LAW.  HAVING SERVED ITS PURPOSE IN GRAVER MFG. CO. V. LINDE CO.,
IT IS NOW IN SUBSTANCE REJECTED.  THE COURT NOW RECOGNIZES WHAT HAS
LONG BEEN APPARENT IN OUR CASES:  THAT IT IS THE "STANDARD OF
INVENTION" THAT CONTROLS.  THAT IS PRESENT IN EVERY CASE WHERE THE
VALIDITY OF A PATENT IS IN ISSUE.  IT IS THAT QUESTION WHICH THE COURT
MUST DECIDE.  NO "FINDING OF FACT" CAN BE A SUBSTITUTE FOR IT IN ANY
CASE.  THE QUESTION OF INVENTION GOES BACK TO THE CONSTITUTIONAL
STANDARD IN EVERY CASE.  WE SPEAK WITH FINAL AUTHORITY ON THAT
CONSTITUTIONAL ISSUE AS WE DO ON MANY OTHERS. 

THE ATTEMPTS THROUGH THE YEARS TO GET A BROADER, LOOSER CONCEPTION OF
PATENTS THAN THE CONSTITUTION CONTEMPLATES HAVE BEEN PERSISTENT.  THE
PATENT OFFICE, LIKE MOST ADMINISTRATIVE AGENCIES, HAS LOOKED WITH FAVOR
ON THE OPPORTUNITY WHICH THE EXERCISE OF DISCRETION AFFORDS TO EXPAND
ITS OWN JURISDICTION.  AND SO IT HAS PLACED A HOST OF GADGETS UNDER THE
ARMOUR OF PATENTS - GADGETS THAT OBVIOUSLY HAVE HAD NO PLACE IN THE
CONSTITUTIONAL SCHEME OF ADVANCING SCIENTIFIC KNOWLEDGE.  A FEW THAT
HAVE REACHED THIS COURT SHOW THE PRESSURE TO EXTEND MONOPOLY TO THE
SIMPLEST OF DEVICES: 

HOTCHKISS V. GREENWOOD, 11 HOW.  248: DOORKNOB MADE OF CLAY RATHER
THAN METAL OR WOOD, WHERE DIFFERENT SHAPED DOOR KNOBS HAD PREVIOUSLY
BEEN MADE OF CLAY. 

RUBBER-TIP PENCIL CO. V. HOWARD, 20 WALL.  498:  RUBBER CAPS PUT ON
WOOD PENCILS TO SERVE AS ERASERS. 

COLLAR CO. V. VAN DUSEN, 23 WALL.  530:  MAKING COLLARS OF PARCHMENT
PAPER WHERE LINEN PAPER AND LINEN HAD PREVIOUSLY BEEN USED. 

BROWN V. PIPER, 91 U.S. 37:  A METHOD FOR PRESERVING FISH BY FREEZING
THEM IN A CONTAINER OPERATING IN THE SAME MANNER AS AN ICE CREAM
FREEZER. 

RECKENDORFER V. FABER, 92 U.S. 347:  INSERTING A PIECE OF RUBBER IN A
SLOT IN THE END OF A WOOD PENCIL TO SERVE AS AN ERASER. 

DALTON V. JENNINGS, 93 U.S. 271:  FINE THREAD PLACED ACROSS OPEN
SQUARES IN A REGULAR HAIRNET TO KEEP HAIR IN PLACE MORE EFFECTIVELY. 

DOUBLE-POINTED TACK CO. V. TWO RIVERS MFG. CO., 109 U.S. 117:
PUTTING A METAL WASHER ON A WIRE STAPLE. 

MILLER V. FOREE, 116 U.S. 22:  A STAMP FOR IMPRESSING INITIALS IN THE
SIDE OF A PLUG OF TOBACCO. 

PRESTON V. MANARD, 116 U.S. 661:  A HOSE REEL OF LARGE DIAMETER SO
THAT WATER MAY FLOW THROUGH HOSE WHILE IT IS WOUND ON THE REEL. 

HENDY V. MINERS' IRON WORKS, 127 U.S. 370:  PUTTING ROLLERS ON A
MACHINE TO MAKE IT MOVEABLE. 

ST. GERMAIN V. BRUNSWICK, 135 U.S. 227:  REVOLVING CUE RACK. 

SHENFIELD V. NASHAWANNUCK MFG. CO., 137 U.S. 56:  USING FLAT CORD
INSTEAD OF ROUND CORD FOR THE LOOP AT THE END OF SUSPENDERS. 

FLORSHEIM V. SCHILLING, 137 U.S. 64:  PUTTING ELASTIC GUSSETS IN
CORSETS. 

CLUETT V. CLAFLIN, 140 U.S. 180:  A SHIRT BOSOM OR DICKEY SEWN ONTO
THE FRONT OF A SHIRT. 

ADAMS V. BELLAIRE STAMPING CO., 141 U.S. 539:  A LANTERN LID FASTENED
TO THE LANTERN BY A HINGE ON ONE SIDE AND A CATCH ON THE OTHER. 

PATENT CLOTHING CO. V. GLOVER, 141 U.S. 560:  BRIDGING A STRIP OF
CLOTH ACROSS THE FLY OF PANTALOONS TO REINFORCE THEM AGAINST TEARING. 

POPE MFG. CO. V. GORMULLY MFG. CO., 144 U.S. 238:  PLACING RUBBER
HAND GRIPS ON BICYCLE HANDLEBARS. 

KNAPP V. MORSS, 150 U.S. 221:  APPLYING THE PRINCIPLE OF THE UMBRELLA
TO A SKIRT FORM. 

MORGAN ENVELOPE CO. V. ALBANY PERFORATED WRAPPING PAPER CO., 152 U.S.
425:  AN OVAL RATHER THAN CYLINDRICAL TOILET PAPER ROLL, TO FACILITATE
TEARING OFF STRIPS. 

DUNHAM V. DENNISON MFG. CO., 154 U.S. 103: AN ENVELOPE FLAP WHICH
COULD BE FASTENED TO THE ENVELOPE IN SUCH A FASHION THAT THE ENVELOPE
COULD BE OPENED WITHOUT TEARING. 

THE PATENT INVOLVED IN THE PRESENT CASE BELONGS TO THIS LIST OF
INCREDIBLE PATENTS WHICH THE PATENT OFFICE HAS SPAWNED.  THE FACT THAT
A PATENT AS FLIMSY AND AS SPURIOUS AS THIS ONE HAS TO BE BROUGHT ALL
THE WAY TO THIS COURT TO BE DECLARED INVALID DRAMATICALLY ILLUSTRATES
HOW FAR OUR PATENT SYSTEM FREQUENTLY DEPARTS FROM THE CONSTITUTIONAL
STANDARDS WHICH ARE SUPPOSED TO GOVERN. 
..END :






STANDARD OIL CO. V. UNITED STATES, 340 U.S. 54 


NOS. 27 AND 28.  ARGUED OCTOBER 13, 1950.  - DECIDED NOVEMBER 27, 1950. 
- 178 F.2D 488, AFFIRMED. 


1.  A GOVERNMENT WAR RISK INSURANCE POLICY INSURING A SHIP AGAINST
"ALL CONSEQUENCES OF HOSTILITIES OR WARLIKE OPERATIONS" DOES NOT, AS A
MATTER OF LAW, COVER A LOSS RESULTING FROM A COLLISION OCCURRING DURING
WARTIME BETWEEN THE INSURED VESSEL AND A NAVY MINE SWEEPER ENGAGED IN
MINE SWEEPING OPERATIONS, WHERE BOTH VESSELS WERE AT FAULT.  PP. 55
61. 

(A)  TO TAKE A LOSS RESULTING FROM A COLLISION OUT OF THE CATEGORY
COVERED BY STANDARD MARINE RISK POLICIES AND BRING IT WITHIN THE
COVERAGE OF A WAR RISK POLICY INSURING AGAINST "ALL CONSEQUENCES OF"
WARLIKE OPERATIONS, THE "WARLIKE OPERATION" MUST BE THE PROXIMATE CAUSE
OF THE COLLISION.  PP. 57-58. 

(B)  THE COURTS BELOW DID NOT ERR IN FAILING TO HOLD AS A MATTER OF
LAW THAT THE "WARLIKE OPERATION" OF MINE SWEEPING WAS THE PROXIMATE
CAUSE OF THE COLLISION; AND THEY PROPERLY CONSIDERED THE CASE AS
DEPENDING ON THE RESOLUTION OF FACTUAL QUESTIONS.  PP. 58-59. 

(C)  WHILE UNIFORMITY OF DECISIONS HERE AND IN ENGLAND IN THE
INTERPRETATION AND ENFORCEMENT OF MARINE INSURANCE CONTRACTS IS
DESIRABLE, AMERICAN COURTS ARE NOT BOUND TO FOLLOW HOUSE OF LORDS'
DECISIONS AUTOMATICALLY.  THE PRACTICE IS NO MORE THAN TO ACCORD
RESPECT TO ESTABLISHED DOCTRINES OF ENGLISH MARITIME LAW.  P. 59. 

(D)  THIS COURT CANNOT BE SURE WHAT CONCLUSION THE HOUSE OF LORDS
WOULD REACH WERE THIS CASE PRESENTED TO IT.  PP. 59-60. 

2.  SINCE THIS COURT WAS ASKED ONLY TO DETERMINE WHETHER AS A MATTER
OF LAW THE PROVISION INSURING AGAINST "ALL CONSEQUENCES OF  ...
WARLIKE OPERATIONS" COVERED THE LOSS RESULTING FROM THE COLLISION HERE
INVOLVED, AND CERTIORARI WAS NOT GRANTED TO CONSIDER THE DIVERGENCE
BETWEEN THE TWO COURTS BELOW IN THEIR FINDINGS OF FACT, THIS COURT DOES
NOT REVIEW THEIR FINDINGS OF FACT.  PP. 57, 59. 

STANDARD OIL COMPANY OF NEW JERSEY V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN AN ADMIRALTY PROCEEDING ARISING OUT OF A COLLISION BETWEEN
PETITIONER'S SHIP AND A NAVY MINE SWEEPER, THE DISTRICT COURT FOUND
THAT THE LOSS WAS COVERED BY A GOVERNMENT POLICY OF WAR RISK
INSURANCE.  81 F.SUPP.  183.  THE COURT OF APPEALS REVERSED.  178 F.2D
488.  THIS COURT GRANTED CERTIORARI.  339 U.S. 977.  AFFIRMED, P. 61. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THESE ARE ADMIRALTY PROCEEDINGS INVOLVING THE GOVERNMENT'S LIABILITY
ON A POLICY OF WAR RISK INSURANCE BY WHICH IT INSURED PETITIONER'S
STEAM TANKER JOHN WORTHINGTON AGAINST "ALL CONSEQUENCES OF HOSTILITIES
OR WARLIKE OPERATIONS."  N1  STIPULATED FACTS SHOW THAT ON DECEMBER 16,
1942, THERE WAS A COLLISION BETWEEN THE WORTHINGTON AND THE YMS-12, ONE
OF THREE UNITED STATES NAVY MINE SWEEPERS CLEARING THE CHANNEL
APPROACHES TO NEW YORK HARBOR.  FN2  BOTH VESSELS WERE AT FAULT IN
FAILING "TO COMPLY WITH THE APPLICABLE RULES" OF GOOD SEAMANSHIP "UNDER
THE CIRCUMSTANCES." 

IN THE DISTRICT COURT THE UNITED STATES CONCEDED THAT MINE SWEEPING
IS A "WARLIKE OPERATION" BUT URGED THAT THE EVIDENCE FAILED TO SHOW
THAT THE COLLISION WAS A "CONSEQUENCE" OF THE MINE SWEEPING WITHIN THE
MEANING OF THE INSURANCE CONTRACT.  PETITIONER CONTENDED THAT THE MERE
SHOWING OF LOSS FROM COLLISION WITH THE MOVING WARSHIP ESTABLISHED
LIABILITY UNDER THE POLICY AS A MATTER OF LAW.  IT ARGUED THAT THIS WAS
THE ENGLISH RULE WHICH SHOULD BE FOLLOWED BY AMERICAN COURTS.  THE
DISTRICT COURT DID NOT ACCEPT PETITIONER'S VIEW OF THE ENGLISH RULE. 
IT READ BOTH THE AMERICAN AND ENGLISH AUTHORITIES AS CONDITIONING THE
UNDERWRITER'S LIABILITY ON PROOF OF FACTS SHOWING THAT THE "WARLIKE
OPERATION" WAS THE "PROXIMATE," "PREDOMINANT AND DETERMINING" CAUSE OF
THE LOSS.  THE COURT HELD FOR PETITIONER, FINDING AS A FACT THAT THIS
BURDEN OF PROOF HAD BEEN MET.  81 F.SUPP.  183.  THE COURT OF APPEALS
REVERSED.  178 F.2D 488.  IT RECOGNIZED THAT SOME LANGUAGE IN CERTAIN
ENGLISH OPINIONS POSSIBLY INDICATED THAT THE FACTS RELIED ON WOULD MAKE
THE WAR UNDERWRITER LIABLE AS A MATTER OF LAW.  NEVERTHELESS, IT
REFUSED TO GO THAT FAR AND, CONTRARY TO THE DISTRICT COURT, FOUND AS A
FACT THAT PETITIONER'S EVIDENCE FAILED TO SHOW THAT THE WARLIKE PHASE
OF THE MINE SWEEPER'S OPERATION HAD CAUSED THE COLLISION.  FN3
PETITIONER SOUGHT CERTIORARI HERE WITHOUT RELYING ON THE DIVERGENCE
BELOW IN THE FINDINGS OF FACT ON THE QUESTION OF CAUSATION.  ITS GROUND
WAS THAT THE COURT OF APPEALS HAD FAILED TO HOLD FOR PETITIONER AS A
MATTER OF LAW AS THE ENGLISH CASES ALLEGEDLY REQUIRED.  WE GRANTED THE
WRIT, 339 U.S. 977, BECAUSE OF ASSERTED CONFLICT ON THIS ONE POINT WITH
GENERAL INS. CO. V. LINK, 173 F.2D 955. 

WE ARE ASKED ONLY TO DETERMINE WHETHER AS A MATTER OF LAW THE
PROVISION INSURING AGAINST "ALL CONSEQUENCES OF  ...  WARLIKE
OPERATIONS" COVERED THE LOSS RESULTING FROM COLLISION BETWEEN THE
WORTHINGTON AND THE MINE SWEEPER.  OF COURSE, THE INTENTION OF THE
CONTRACTING PARTIES WOULD CONTROL THIS DECISION, BUT AS IS SO OFTEN THE
CASE, THAT INTENTION IS NOT READILY ASCERTAINABLE.  LOSSES FROM
COLLISIONS ARE PRIMA FACIE PERILS OF THE SEA COVERED BY STANDARD MARINE
RISK POLICIES.  FN4  TO TAKE SUCH A LOSS OUT OF THE MARINE POLICY AND
TO BRING IT WITHIN THE COVERAGE OF THE PROVISION INSURING AGAINST "ALL
CONSEQUENCES OF" WARLIKE OPERATIONS, COMMON SENSE DICTATES THAT THERE
MUST BE SOME CAUSAL RELATIONSHIP BETWEEN THE WARLIKE OPERATION AND THE
COLLISION.  COURTS HAVE LONG SO HELD IN INTERPRETING WHAT WAS MEANT BY
USE OF THE PHRASE "ALL CONSEQUENCES" IN WAR RISK POLICIES.  FN5  IN
TURN, THE EXISTENCE OR NON-EXISTENCE OF CAUSAL CONNECTION BETWEEN THE
PERIL INSURED AGAINST AND THE LOSS HAS BEEN DETERMINED BY LOOKING TO
THE FACTUAL SITUATION IN EACH CASE AND APPLYING THE CONCEPT OF
"PROXIMATE CAUSE."  FN6  PROXIMATE CAUSE IN THE INSURANCE FIELD HAS
BEEN VARIOUSLY DEFINED.  IT HAS BEEN SAID THAT PROXIMATE CAUSE REFERRED
TO THE "CAUSE NEAREST TO THE LOSS."  FN7  AGAIN, COURTS HAVE PROPERLY
STATED THAT PROXIMATE CAUSE "DOES NOT NECESSARILY REFER TO THE CAUSE
NEAREST IN POINT OF TIME TO THE LOSS.  BUT THE TRUE MEANING OF THAT
MAXIM IS, THAT IT REFERS TO THAT CAUSE WHICH IS MOST NEARLY AND
ESSENTIALLY CONNECTED WITH THE LOSS AS ITS EFFICIENT CAUSE."  FN8 

IN VIEW OF THE FOREGOING, CAN IT BE SAID THAT THE COURT OF APPEALS
ERRED IN FAILING TO HOLD AS A MATTER OF LAW THAT THE MINE SWEEPING, A
WARLIKE OPERATION, WAS THE "PREDOMINANT AND DETERMINING" CAUSE OF THE
COLLISION?  AS WE READ THE RECORD, THE FACTS ARE SUSCEPTIBLE BOTH OF
THE INFERENCE THAT THE MINE-SWEEPING ACTIVITY OF THE YMS-12 HAD SOME
RELATION TO THE COLLISION AND THAT IT DID NOT.  THAT IS TO SAY,
REASONABLE TRIERS OF FACT CONSIDERING ALL OF THE CIRCUMSTANCES OF THIS
COLLISION MIGHT DIFFER AS TO WHETHER THE LOSS WAS PREDOMINANTLY OR
PROXIMATELY CAUSED BY USUAL NAVIGATIONAL HAZARDS (AND THEREFORE AN
ORDINARY MARINE INSURANCE RISK) OR WHETHER IT WAS CAUSED BY
EXTRAORDINARY PERILS STEMMING FROM THE MINE SWEEPING (AND THEREFORE A
WAR INSURANCE RISK).  FN9 INDEED, THE DISTRICT COURT AND THE COURT OF
APPEALS DID DIFFER ON THIS FACTUAL DETERMINATION.  SINCE CERTIORARI WAS
NOT GRANTED TO CONSIDER THAT DIVERGENCE IN THE FINDINGS OF FACT, WE
NEED GO NO FURTHER THAN TO HOLD THAT THE COURTS BELOW PROPERLY
CONSIDERED THE CASE AS DEPENDING ON THE RESOLUTION OF FACTUAL
QUESTIONS. 

PETITIONER NEVERTHELESS CONTENDS THAT (1) WE ARE BOUND BY CERTAIN
DECISIONS IN THE HOUSE OF LORDS AND (2) THESE OPINIONS HAVE ANNOUNCED A
RULE-OF-THUMB CONSTRUCTION OF THE PHRASE "ALL CONSEQUENCES OF  ...
WARLIKE OPERATIONS" UNDER WHICH THE FACTS IN THIS CASE RESULT IN WAR
RISK LIABILITY AS A MATTER OF LAW.  WE CANNOT ACCEPT THESE ARGUMENTS. 
IT IS TRUE THAT WE AND OTHER AMERICAN COURTS HAVE EMPHASIZED THE
DESIRABILITY OF UNIFORMITY IN DECISIONS HERE AND IN ENGLAND IN
INTERPRETATION AND ENFORCEMENT OF MARINE INSURANCE CONTRACTS.  FN10
ESPECIALLY IS UNIFORMITY DESIRABLE WHERE, AS HERE, THE PARTICULAR FORM
OF WORDS EMPLOYED ORIGINATED IN ENGLAND.  BUT THIS DOES NOT MEAN THAT
AMERICAN COURTS MUST FOLLOW HOUSE OF LORDS' DECISIONS AUTOMATICALLY. 
ACTUALLY OUR PRACTICE IS NO MORE THAN TO ACCORD RESPECT TO ESTABLISHED
DOCTRINES OF ENGLISH MARITIME LAW.  FN11 

THE DIFFICULTIES INHERENT IN THE RIGID CONFORMITY RULE URGED BY
PETITIONER ARE OBVIOUS TO THOSE FAMILIAR WITH THE SEARCH FOR STATE
DECISIONAL LAW UNDER THE ERIE-TOMPKINS DOCTRINE.  IN THIS VERY CASE,
WE, LIKE THE COURT OF APPEALS, CANNOT BE SURE WHAT CONCLUSION THE HOUSE
OF LORDS WOULD REACH WERE THIS CASE PRESENTED TO IT.  SOME OF THEIR
DECISIONS INDICATE THAT THEY WOULD HAVE HELD AS A MATTER OF LAW THAT
THE COLLISION WAS THE "CONSEQUENCE" OF THE WARLIKE OPERATION; FN12
OTHER CASES CANNOT EASILY BE RECONCILED WITH SUCH A RESULT.  FN13
INDEED, IN ONE DECISION, LORD WRIGHT DECLARED THAT "IN MANY CASES
RECONCILIATION IS IMPOSSIBLE.  WHAT MATTERS IS THE DECISION."  FN14 AND
EVEN IN THOSE DECISIONS IMPLYING THAT PROOF OF CERTAIN FACTS RESULTS IN
LIABILITY AS A MATTER OF LAW, THE HOUSE OF LORDS HAS SPOKEN IN TERMS OF
FACTUAL PROXIMATE CAUSE.  FN15  THEIR MOST RECENT DECISION CONSTRUING
THE WORDS BEFORE US STATES THAT CASES APPLYING THE "QUESTION OF LAW"
TECHNIQUE SHOULD BE CAREFULLY RESTRICTED TO THEIR HOLDINGS; AND LORD
NORMAND WARNED, "THE NUMEROUS AUTHORITIES CITED CAN THEREFORE HAVE ONLY
A LIMITED BEARING ON THE PRESENT ISSUE.  ...  (THEY) WILL EASILY LEAD
TO ERROR IF IT IS ATTEMPTED TO EXTRACT FROM THEM A PRINCIPLE OF LAW TO
SOLVE WHAT IS A QUESTION OF FACT."  FN16 

THIS COURT, MOREOVER, HAS LONG EMPHASIZED THAT IN INTERPRETING
INSURANCE CONTRACTS REFERENCE SHOULD BE MADE TO CONSIDERATIONS OF
BUSINESS AND INSURANCE PRACTICES.  FN17  THE PARTICULAR ENGLISH CASES
RELIED ON BY PETITIONER PRODUCED SUCH AN UNFAVORABLE REACTION AMONG
THAT COUNTRY'S UNDERWRITERS THAT THEY REVISED THE CLAUSE HERE INVOLVED
TO AVOID THE INJURIOUS EFFECTS OF THOSE DECISIONS.  FN18  THE TERMS OF
AMERICAN WAR RISK POLICIES HAVE ALSO BEEN ALTERED.  FN19 

THE PROXIMATE CAUSE METHOD OF DETERMINING ON THE FACTS OF EACH CASE
WHETHER A LOSS WAS THE "CONSEQUENCE" OF WARLIKE OPERATIONS MAY FALL
SHORT OF ACHIEVING PERFECT RESULTS.  FOR THOSE INSURED AND THOSE
INSURING CANNOT PREDICT WITH CERTAINTY WHAT A TRIER OF FACT MIGHT
DECIDE IS THE PREDOMINANT CAUSE OF LOSS.  BUT NEITHER COULD THEY
PREDICT WITH CERTAINTY WHAT PARTICULAR STATE OF FACTS MIGHT CAUSE A
COURT TO DISCOVER LIABILITY "AS A MATTER OF LAW."  LONG EXPERIENCE WITH
THE PROXIMATE CAUSE METHOD IN AMERICAN AND ENGLISH COURTS HAS AT LEAST
PROVEN IT ADAPTABLE AND USEFUL IN MARINE AND OTHER INSURANCE CASES. 
THERE IS NO REASON TO BELIEVE THAT ITS APPLICATION IN THIS CASE WILL
DISAPPOINT THE JUST EXPECTATIONS OF INSURER OR INSURED. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  THE QUOTED LANGUAGE COMES FROM THE "F.C. & S. CLAUSE" ("FREE
FROM CAPTURE AND SEIZURE") AND IS INCORPORATED BY REFERENCE IN THE WAR
RISK POLICY.  WAR RISK INSURANCE IS WRITTEN IN THE FOLLOWING MANNER:
THE MARINE POLICY, WHICH COVERS COMMON PERILS OF THE SEA, GENERALLY
CONTAINS AN "F.C. & S. CLAUSE" ELIMINATING FROM COVERAGE CERTAIN NAMED
WAR RISKS, ONE OF WHICH IS "ALL CONSEQUENCES OF HOSTILITIES OR WARLIKE
OPERATIONS."  THE EXCEPTED RISKS ARE INSURED AGAINST EITHER BY ADDING A
RIDER TO THE ORIGINAL MARINE POLICY, OR BY BUYING COVERAGE FROM ANOTHER
UNDERWRITER - HERE THE GOVERNMENT - WHO INSURES THE PERILS EXCLUDED BY
THE "F.C. & S. CLAUSE."  THE OPINIONS BELOW SET OUT MORE FULLY THE
DOCUMENTS ON WHICH THE PRESENT INSURANCE OBLIGATION RESTED.  FOR A
HISTORY OF THE DEVELOPMENT OF THE "F.C. & S. CLAUSE" WHICH ORIGINATED
IN ENGLAND, SEE 18 HALSBURY'S LAWS OF ENGLAND (2D ED. 1935) SEC. 439;
IONIDES V. UNIVERSAL MARINE INS. CO., 14 C.B. (N.S.)  259, 273(1863). 

FN2  COUNSEL DESCRIBED THE OPERATION THIS WAY:  "A MINE SWEEPING
OPERATION  ...  IS A FORMATION OF VESSELS, EACH OF WHICH STREAMS OUT
BEHIND IT A DEVICE ON A LONG CABLE WHICH, TOWED ALONG A CERTAIN
DISTANCE UNDER THE WATER, IS DESIGNED TO CUT THE CABLE OF ANY MINE AND
BRING IT TO THE SURFACE, WHERE IT CAN BE DESTROYED BY GUNFIRE AND THE
LIKE." 

FN3  WE DO NOT READ THE COURT OF APPEALS DECISION AS MEANING THAT
WHEN NEGLIGENCE IS PRESENT, THE RESULTING LOSS CAN NEVER BE A WAR
RISK.  THE DISTRICT COURT HELD (AND THE COURT OF APPEALS APPROVED) THAT
"'"PROXIMATE" HERE MEANS, NOT LATEST IN TIME, BUT PREDOMINANT IN
EFFICIENCY.'  '(THERE) IS NECESSARILY INVOLVED A PROCESS OF SELECTION
FROM AMONG THE CO-OPERATING CAUSES TO FIND WHAT IS THE PROXIMATE CAUSE
IN THE PARTICULAR CASE.'  IT IS TRUE THAT THE CAUSES OF AN EVENT ARE
ALL THE PRECEDING CIRCUMSTANCES WHICH BROUGHT THE EVENT TO PASS - AND
THEY ARE MYRIAD."  81 F.SUPP.  190.  IF THE "WARLIKE OPERATION" WAS THE
"PROXIMATE CAUSE" OF THE COLLISION, THEN THE FACT THAT THE "WARLIKE
OPERATION" WAS NEGLIGENTLY CONDUCTED DOES NOT RELIEVE THE WAR RISK
UNDERWRITER OF LIABILITY.  CF. GENERAL MUT. INS. CO. V. SHERWOOD, 14
HOW.  351; 1 PHILLIPS ON INSURANCE (5TH ED. 1867) P1049. 

FN4  CASES COLLECTED, 1912 D ANN. CASES 1038, 1040; 2 ARNOULD, MARINE
INSURANCE AND AVERAGE (13TH ED., LORD CHORLEY, 1950), SEC. 827A. 

FN5  IONIDES V. UNIVERSAL MARINE INS. CO., 14 C.B. (N.S.)  259(1863);
SEE QUEEN INS. CO. V. GLOBE & RUTGERS FIRE INS. CO., 263 U.S. 487,
491.  2 ARNOULD, MARINE INSURANCE AND AVERAGE (13TH ED., LORD CHORLEY,
1950), SEC. 790. 

FN6  INSURANCE CO. V. BOON, 95 U.S. 117; 3 KENT'S COMMENTARIES (14TH
ED., GOULD, 1896) 302; CASES ARE COLLECTED IN 6 COUCH, CYCLOPEDIA OF
INSURANCE LAW, SEC. 1463. 

FN7  QUEEN INS. CO. V. GLOBE & RUTGERS FIRE INS. CO., 263 U.S. 487,
492.  CF. INSURANCE CO. V. TRANSPORTATION CO., 12 WALL.  194, 197-199. 

FN8  DOLE V. NEW ENGLAND MUT. INS. CO., 7 FED. CAS. 837, 853(C.C.
MASS. 1864) DECIDED BY MR. JUSTICE CLIFFORD ON CIRCUIT.  ACCORD:
INSURANCE CO. V. BOON, 95 U.S. 117; LANASA FRUIT S.S. & IMPORTING CO.
V. UNIVERSAL INS. CO., 302 U.S. 556, 561-565; 3 KENT'S COMMENTARIES
(14TH ED., GOULD, 1896) 302, N. 1; 1 PHILLIPS ON INSURANCE (5TH ED.
1867) P1132. 

FN9  ORDINARY MARINE INSURANCE COVERS LOSSES DUE TO FORTUITOUS PERILS
OF THE SEA.  WAR RISK INSURANCE COVERS LOSSES DUE TO PERILS
SUPERIMPOSED ON USUAL MARINE PERILS BY WAR.  AS LORD WRENBURY PUT IT,
"THE QUESTION IS WHETHER THE LOSS WAS OCCASIONED BY A NEW RISK ARISING
BY REASON OF WARLIKE OPERATIONS."  ATTORNEY-GENERAL V. ARD COASTERS,
LTD., (1921) 2 A.C. 141, 154. 

FN10  QUEEN INS. CO. V. GLOBE & RUTGERS FIRE INS. CO., 263 U.S. 487,
493.  SEE NEW YORK & ORIENTAL S.S. CO. V. AUTOMOBILE INS. CO., 37 F.2D
461, 463.  THE DESIRE FOR UNIFORMITY IN INTERPRETATION OF THE WAR RISK
CLAUSE MAY NOW BE MORE ACADEMIC THAN REAL.  SINCE 1942, POLICIES ISSUED
IN ENGLAND AND IN THE UNITED STATES HAVE NOT CONTAINED SIMILAR
PROVISIONS IN THIS REGARD SO THAT UNIFORMITY IS NO LONGER POSSIBLE. 
COMPARE 1945 AM. MAR. CAS. 1035 WITH 1945 AM. MAR. CAS. 1036.    FN11
AETNA INS. CO. V. UNITED FRUIT CO., 304 U.S. 430, 438. 

FN12  E.G., ATTORNEY-GENERAL V. ADELAIDE S.S. CO., (1923) A.C. 292;
BOARD OF TRADE V. HAIN S.S. CO., (1929) A.C. 534; CF. YORKSHIRE DALE
S.S. CO. V. MINISTER OF WAR TRANSPORT, (1942) A.C. 691. 

FN13  E.G., CLAN LINE STEAMERS, LTD. V. BOARD OF TRADE, (1929) A.C.
514; LIVERPOOL & LONDON WAR RISKS ASSN. V. OCEAN S.S. CO., (1948) A.C.
243. 

FN14  YORKSHIRE DALE S.S. CO. V. MINISTER OF WAR TRANSPORT, (1942)
A.C. 691, 708. 

FN15 SEE CASES CITED IN NOTE 12, SUPRA.  ENGLAND HAS ENACTED THE
PROXIMATE CAUSE TEST INTO ITS STATUTORY LAW.  MARINE INSURANCE ACT OF
1906, 6 EDW.  VII, C. 41, SEC. 55(2). 

FN16  LIVERPOOL & LONDON WAR RISKS ASSN. V. OCEAN S.S. CO., (1948)
A.C. 243, 270. 

FN17  GENERAL MUT. INS. CO. V. SHERWOOD, 14 HOW.  351, 362. 

FN18  2 ARNOULD, MARINE INSURANCE AND AVERAGE (13TH ED., LORD
CHORLEY, 1950), SEC. 905H. 

FN19  SEE NOTE 10, SUPRA. 

MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE JACKSON, DISSENTING. 

ALTHOUGH THE PARTIES ARE THE UNITED STATES AND THE STANDARD OIL
COMPANY OF NEW JERSEY, THIS IS NOTHING MORE THAN AN ORDINARY INSURANCE
CASE.  IT IS BEFORE US BECAUSE OF A CONFLICT WITH THE VIEWS OF THE
COURT OF APPEALS FOR THE NINTH CIRCUIT IN GENERAL INSURANCE CO. OF
AMERICA V. LINK, 173 F.2D 955.  ON DECEMBER 16, 1942, THE STANDARD
TANKER WORTHINGTON COLLIDED WITH A UNITED STATES NAVY MINE SWEEPER, THE
YMS-12, ENGAGED IN SWEEPING MINES IN THE CHANNEL OUTSIDE NEW YORK
HARBOR.  IT HAS BEEN STIPULATED THAT THE COLLISION "WAS CONTRIBUTED TO
BOTH BY FAULT IN THE NAVIGATION OF SS JOHN WORTHINGTON AND FAULT IN THE
NAVIGATION OF THE UNITED STATES SHIP YMS-12, CONSISTING OF FAILURES ON
THE PART OF BOTH VESSELS TO COMPLY WITH APPLICABLE RULES FOR THE
PREVENTION OF COLLISIONS AND THE REQUIREMENTS OF GOOD SEAMANSHIP UNDER
THE CIRCUMSTANCES."  THE WORTHINGTON WAS UNDAMAGED, BUT UNDER ADMIRALTY
LAW STANDARD WAS LIABLE FOR HALF THE DAMAGE SUSTAINED BY THE MINE
SWEEPER SINCE BOTH SHIPS WERE AT FAULT.  STANDARD, AS A SELF-INSURER OF
ITS TANKER WORTHINGTON, HAD ASSUMED ALL MARINE RISKS EXCEPT THOSE
UNDERTAKEN BY THE UNITED STATES, THE CHARTERER OF THE VESSEL.  THE
GOVERNMENT'S UNDERTAKING WAS TO INSURE AGAINST "ALL CONSEQUENCES OF
HOSTILITIES OR WARLIKE OPERATIONS."  FN1 

THE UNITED STATES FILED A LIBEL AGAINST STANDARD TO RECOVER FOR ONE
HALF THE DAMAGE TO THE NAVY MINE SWEEPER.  STANDARD ANSWERED THAT THE
UNITED STATES, AS INSURER OF THE TANKER, WOULD, IN VIEW OF THE NATURE
OF THE COLLISION, HAVE TO REIMBURSE STANDARD FOR ANY LOSS IT SUSTAINED
IN THE SUIT.  FN2  THE DISTRICT COURT DISMISSED THE LIBEL UPON THIS
THEORY.  81 F.SUPP.  183.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
REVERSED, 178 F.2D 488, AND THIS COURT GRANTED CERTIORARI, 339 U.S.
977, BECAUSE, AS ALREADY NOTED, THERE WAS A CONFLICT BETWEEN THE SECOND
AND NINTH CIRCUITS. 

IN GRANTING WITHOUT LIMITATION THE PETITION FOR CERTIORARI, WE
BROUGHT HERE ALL THAT BY FAIR IMPLICATION IS CONTAINED IN THE FOLLOWING
QUESTION:  "IS A COLLISION BETWEEN A WAR VESSEL ENGAGED ON A WARLIKE
OPERATION AND A MERCHANT VESSEL, WITH FAULT ON THE PART OF BOTH
VESSELS, A CONSEQUENCE OF THE WARLIKE OPERATION OF THE WAR VESSEL?"  I
DO NOT THINK IT IS PERMISSIBLE TO LIMIT THE QUESTION THAT WAS BROUGHT
HERE BY AN ASSUMPTION THAT THERE WAS NO PROOF OF RELATION BETWEEN THE
PECULIAR RISKS DUE TO THE WARLIKE OPERATION AND THE LOSS.  THE DISTRICT
COURT FOUND A CONNECTION BETWEEN THE LOSS AND THE RISKS INCIDENT TO THE
WARLIKE OPERATION.  THE COURT OF APPEALS OPINION DISCUSSED AT LENGTH
THE STANDARD UPON WHICH SUCH A FINDING IS BASED.  THE PETITIONER'S
SUBMISSION HERE SEEMS CLEARLY TO ADHERE TO THE GROUND ON WHICH HE
PREVAILED IN THE DISTRICT COURT.  IT IS TRUE THAT WHERE THE STANDARD TO
BE APPLIED TO THE FACTS IS CLEAR, WE OUGHT NOT TO BE CONCERNED OVER A
DIFFERENCE OF VIEW REGARDING THE FACTS BETWEEN THE DISTRICT COURT AND
COURT OF APPEALS.  BUT WHERE THE CLASH OF VIEWS MAY INVOLVE THE MEANING
OF THE STANDARD TO BE APPLIED TO THE FACTS, IT MAKES FOR UNCERTAINTY IF
THIS COURT FAILS TO CONSIDER THE PROBLEM FULLY.  THE "PROXIMATE CAUSE"
STANDARD OF INSURANCE LIABILITY IS, AT BEST, AN ELUSIVE CONCEPT.  IT
ACQUIRES MORE VIVID MEANING WHEN ABSTRACT DISCUSSION LEADS TO AN
APPLICATION OF THE PRINCIPLE. 

SINCE THE ISSUE IS THE SCOPE TO BE GIVEN THE WORDS "ALL CONSEQUENCES
OF HOSTILITIES OR WARLIKE OPERATIONS," IT IS IMPORTANT TO PLACE THE
PHRASE IN ITS HISTORIC SETTING.  PHRASES LIKE OTHER ORGANISMS MUST BE
RELATED TO THEIR ENVIRONMENT.  IT FURTHERS CLARITY EXPLICITLY TO SET TO
ONE SIDE A GROUP OF CASES CONSTRUING AN EARLIER PHRASE WHICH AROSE IN A
DIFFERENT SETTING.  IN SEVERAL CASES THE COURT OF CLAIMS AND THIS COURT
HAD OCCASION TO CONSIDER A PROVISION IN CIVIL WAR CHARTERS AND LATER
GOVERNMENT CHARTERS WHEREBY THE GOVERNMENT ASSUMED THE "WAR RISK" FOR
THE VESSELS.  WHEN FIRST CALLED UPON TO CONSTRUE THE CHARTER PROVISION
"WAR RISK," THE COURT OF CLAIMS SPECIFICALLY NOTED THAT IT WAS NOT
DEALING WITH A STANDARD MARINE INSURANCE CLAUSE AND CONSTRUED THE WORDS
TO MEAN "ACTS OF THE PUBLIC ENEMY" OR "CASUALTIES OF WAR."  BOGERT V.
UNITED STATES, 2 CT. CL. 159, 163.  THIS RESTRICTIVE DEFINITION WAS
REITERATED IN MORGAN V. UNITED STATES, 5 CT. CL. 182, 189-190, WHICH
WAS AFFIRMED IN 14 WALL.  531, AND BECAME SETTLED DOCTRINE IN THE
SUBSEQUENT CASES INVOLVING THE "WAR RISK" CHARTER TERM. 

THE CLAUSE THAT IS OUR CONCERN, "ALL CONSEQUENCES OF HOSTILITIES OR
WARLIKE OPERATIONS," WAS NOT DERIVED FROM THE AMERICAN "WAR RISK"
CHARTER TERM AND THEREFORE IS NOT TO DRAW ITS MEANING FROM THE CASES
CONSTRUING THAT TERM.  IT IS A CLAUSE EVOLVED BY ENGLISH MARITIME
INSURERS.  SEE THE OPINION OF LORD JUSTICE ATKIN IN BRITAIN S.S. CO. V.
THE KING, (1919) 2 K.B. 670, 692-693.  AND THE LANGUAGE HAS OFTEN BEEN
CONSTRUED IN ENGLISH COURTS.  SEE YORKSHIRE DALE S.S. CO. V. MINISTER
OF WAR TRANSPORT, (1942) A.C. 691, 703, 714, FOR A DISCUSSION OF THE
CASES BY LORD WRIGHT AND LORD PORTER.  IT IS ONLY NATURAL THAT AMERICAN
COURTS HAVE LOOKED TO THE ENGLISH CASES FOR ILLUMINATION JUST AS COURTS
LOOK TO THE DECISIONS OF ANOTHER STATE FOR AID IN DETERMINING THE
MEANING OF A STATUTE ADOPTED FROM THAT STATE.  PROVISIONS IN A STANDARD
CONTRACT FORM BECOME WORDS OF ART, AND THEIR CONTENT IS MOST DEPENDABLY
ARRIVED AT BY CONSIDERING THE ORIGIN OF THE WORDS AND THE MEANING THEY
HAVE IN PRACTICE ACQUIRED.  THESE ARE CONSIDERATIONS MAKING FOR
APPROPRIATE CONSTRUCTION AND DO NOT IMPLY SUBSERVIENCE TO ENGLISH
DECISIONS. 

TWO PROBLEMS ARISE IN CONSTRUING THE CLAUSE:  (1) WHAT CONSTITUTES
"HOSTILITIES OR WARLIKE OPERATIONS?"  (2) WHAT IS THE SWEEP OF THE
WORDS "ALL CONSEQUENCES?"  THE FIRST QUESTION, WHICH HAS PRESENTED
GREAT DIFFICULTIES IN CASES INVOLVING CONVOYS AND BLACKED-OUT VESSELS,
HAS BEEN REMOVED FROM THE CASE BY A STIPULATION THAT THE MINE SWEEPER
WAS ENGAGED IN SWEEPING MINES - BEYOND DISPUTE A WARLIKE OPERATION.  A
WARLIKE OPERATION DOES NOT LOSE ITS WARLIKE CHARACTER BECAUSE IT IS
CARRIED OUT NEGLIGENTLY. 

THE ONLY QUESTION BEFORE THE COURT IS WHETHER THE COLLISION WAS A
"CONSEQUENCE" OF THE WARLIKE OPERATION, OR, IN THE JARGON OF INSURANCE
CASES, WHETHER THE WARLIKE OPERATION WAS THE "PROXIMATE CAUSE" OF THE
COLLISION.  "PROXIMATE CAUSE," AS A REQUIREMENT OF LIABILITY UNDER AN
INSURANCE POLICY, IS NOT A TECHNICAL LEGAL CONCEPTION BUT A CONVENIENT
TAG FOR THE LAW'S RESPONSE TO GOOD SENSE.  IT IS SHORTHAND FOR SAYING
THAT THERE MUST BE SUCH A NEXUS BETWEEN THE POLICY TERM UNDER WHICH
INSURANCE MONEY IS CLAIMED AND THE EVENTS GIVING RISE TO THE LOSS THAT
IT CAN BE FAIRLY DECLARED THAT THE LOSS WAS WITHIN THE RISK ASSUMED. 
THE CASE IS ONE OF "COMMON-SENSE ACCOMMODATION OF JUDGMENT TO
KALEIDOSCOPIC SITUATIONS."  GULLY V. FIRST NATIONAL BANK, 299 U.S. 109,
117. 

UNLIKE OBLIGATIONS FLOWING FROM DUTIES IMPOSED UPON PEOPLE WILLY
NILLY, AN INSURANCE POLICY IS A VOLUNTARY UNDERTAKING BY WHICH
OBLIGATIONS ARE VOLUNTARILY ASSUMED.  THEREFORE THE SUBTLETIES AND
SOPHISTRIES OF TORT LIABILITY FOR NEGLIGENCE ARE NOT TO BE APPLIED IN
CONSTRUING THE COVENANTS OF A POLICY.  IT IS ONE THING FOR THE LAW TO
IMPOSE LIABILITY BY ITS OWN NOTIONS OF RESPONSIBILITY, AND QUITE
ANOTHER TO CONSTRUE THE SCOPE OF ENGAGEMENTS BOUGHT AND PAID FOR.  THE
LAW OF MARINE INSURANCE IS CONCERNED WITH AND REFLECTS THE
PRACTICALITIES OF COMMERCIAL DEALINGS.  THE LAW DOES NOT PLAY AN UNREAL
METAPHYSICAL GAME OF TRYING TO FIND A SINGLE ISOLATABLE FACTOR AS THE
SOLE RESPONSIBILITY TO WHICH IS TO BE ATTRIBUTED A LOSS AGAINST WHICH
INSURANCE HAS BEEN BOUGHT.  AS A MATTER OF EXPERIENCE AND REASON SUCH
LOSSES ARE INVARIABLY THE RESULTANT OF A COMBINATION OF FACTORS.  THE
SCOPE OF THE UNDERTAKING TO COVER FOR SUCH LOSSES IS PARTLY THE LAW'S
CONFIRMATION OF THE SETTLED UNDERSTANDING OF THOSE WHOSE BUSINESS IS
SHIPPING - THEIR UNDERSTANDING OF WHAT CONTINGENCIES THE UNDERTAKING
COVERED.  IT IS PARTLY THE LAW'S ENDEAVOR, IN VIEW OF THE INEVITABLE
TREACHERIES OF LANGUAGE, TO SHIELD THE INSURER FROM LIABILITY FOR A
LOSS ON THE BASIS OF A FACTOR TOO REMOTE, AND THEREFORE TOO TENUOUS, IN
THE COMBINATION OF ELEMENTS THAT CONVERGED TOWARD THE LOSS. 

LOOKING TO THE FACTS OF THIS CASE AND THE TERMS OF THE CONTRACT, DOES
THE FAILURE OF BOTH VESSELS "TO COMPLY WITH APPLICABLE RULES FOR THE
PREVENTION OF COLLISIONS AND THE REQUIREMENTS OF GOOD SEAMANSHIP UNDER
THE CIRCUMSTANCES" RELIEVE OF RESPONSIBILITY THE INSURER AGAINST ALL
CONSEQUENCES OF HOSTILITIES AND WARLIKE OPERATIONS?  IN OTHER WORDS,
DOES CONTRIBUTORY NEGLIGENCE IN RELATION TO A WARLIKE OPERATION
DISPLACE THE WARLIKE OPERATION AS AN EFFECTIVE FORCE IN BRINGING ABOUT
A LOSS? 

THE COLLISION OCCURRED BETWEEN 5 AND 6 A.M. ON DECEMBER 16, 1942, IN
THE SWEPT CHANNEL IN THE APPROACHES TO NEW YORK HARBOR.  THE YMS-12 WAS
PROCEEDING SEAWARD WITH HER MINE-SWEEPING GEAR STREAMED.  SHE WAS THE
STARBOARD VESSEL IN A FORMATION OF THREE MINE SWEEPERS ENGAGED IN
SWEEPING THE BUOYED CHANNEL.  IN THE WORDS OF THE DISTRICT JUDGE, WHO
QUESTIONED COUNSEL CLOSELY ON THE WAY IN WHICH MINE SWEEPING WAS
CARRIED ON: 

"HERE, CONCEDEDLY, NEGLIGENCE IN NAVIGATION EXISTED ON THE PART OF
BOTH MASTERS, BUT THAT NEGLIGENCE DID NOT BREAK THE CHAIN OF CAUSATION
SO AS TO PREVENT THE LOSS FROM BEING ATTRIBUTABLE TO THE WARLIKE
OPERATION.  THE YMS-12 AND THE TWO ACCOMPANYING VESSELS, IN MINE
SWEEPING FORMATION, PROCEEDING WITH MINE SWEEPING GEAR STREAMED AND
TRAILING PARAVANES, PRESENTED AN UNUSUAL AND UNEXPECTED OBSTACLE TO
NAVIGATION.  YMS-105 WAS THE GUIDE SHIP OF THE FORMATION, THE YMS-12
WAS STATIONED SEVERAL HUNDRED YARDS ON THE STARBOARD BEAM OF THE YMS
105 AND THE THIRD VESSEL IN THE FORMATION, THE AMC-95, WAS ECHELON TO
THE RIGHT OF THE GUIDE SHIP, IN A POSITION APPROXIMATELY A HALF MILE
ASTERN AND MIDWAY BETWEEN THE YMS-105 AND THE YMS-12.  FROM THE TIME OF
THE ENCOUNTER UNTIL ACTUAL COLLISION THE VESSELS CONTINUED IN THEIR
MINE SWEEPING OPERATIONS WITH THEIR PARAVANES TRAILING; IN ALL HER
MANOEUVRES AND IN HER NAVIGATION THE YMS-12 WAS NECESSARILY RESTRICTED
AND IMPEDED.  THIS UNUSUAL FORMATION, OF WHICH THE YMS-12 WAS A PART,
CLOSED TO THE S. S. JOHN WORTHINGTON LANES OF NAVIGATION AFFORDING
POSSIBLE ESCAPE WHICH WOULD ORDINARILY HAVE BEEN OPEN TO HER. 

"THE NEGLIGENCE FOUND TO EXIST WAS NEGLIGENCE 'UNDER THE
CIRCUMSTANCES' OF THE SPECIAL AND EXTRAORDINARY CONDITIONS EXISTING -
CONDITIONS CREATED BY THE WARLIKE OPERATION OF MINE SWEEPING."  81
F.SUPP.  183, 191. 

WHETHER THE COURT OF APPEALS REACHED ITS DECISION BY APPLICATION OF
AN ERRONEOUS RULE OF LAW, BY THE ERRONEOUS APPLICATION OF THE PROPER
RULE OF LAW, OR BY AN ERRONEOUS CONSTRUCTION OF THE STIPULATION OF FACT
MADE BY THE PARTIES IS NOT CLEAR.  IN ANY CASE, IT SHOULD BE REVERSED. 
IF THE MATTER IS VIEWED SIMPLY - ACCORDING TO THE FAIR JUDGMENT OF MEN
OF COMMERCE AND CLEAR OF BECLOUDING ABSTRACTIONS - ONE CAN HARDLY
ESCAPE THE CONCLUSION OF THE DISTRICT COURT.  THE FACT THAT THE ENGLISH
COURTS HAVE REACHED THE SAME CONCLUSION IN SIMILAR CASES DOES NOT
WEAKEN ITS FORCE.  SEE BOARD OF TRADE V. HAIN S.S. CO., (1929) A.C.
534; ATTORNEY-GENERAL V. ADELAIDE S.S. CO., (1923) A.C. 292. 

THE GOVERNMENT MAKES A SECOND CONTENTION:  THAT ITS WAR-RISK
UNDERTAKING DID NOT EXTEND TO COLLISION LIABILITY.  SINCE THE ONLY LOSS
TO STANDARD WAS A LIABILITY FOR DAMAGE TO THE OTHER SHIP, THIS ARGUMENT
WOULD RELIEVE THE GOVERNMENT OF ITS LIABILITY AS INSURER.  THE
CONTENTION FINDS SUPPORT IN ADELAIDE S.S. CO. V. ATTORNEY-GENERAL (THE
SECOND WARILDA), (1926) A.C. 172.  BUT SUBSEQUENT CHANGES IN THE
WORDING OF THE POLICY MAKE IT PERFECTLY PLAIN THAT THE UNITED STATES
INSURED AGAINST COLLISION LIABILITY.  FN3 

FN1  THE WORTHINGTON WAS UNDER REQUISITION TIME CHARTER TO THE UNITED
STATES AT THE TIME OF COLLISION.  CLAUSE 20 OF PART II OF THE CHARTER
PROVIDED: 

"UNLESS OTHERWISE MUTUALLY ARRANGED, AT ALL TIMES DURING THE CURRENCY
OF THIS CHARTER THE CHARTERER SHALL PROVIDE AND PAY FOR OR ASSUME:  (I)
INSURANCE ON THE VESSEL, UNDER THE TERMS AND CONDITIONS OF THE FULL
FORM OF STANDARD HULL WAR RISK POLICY OF THE WAR SHIPPING
ADMINISTRATION, ...  "    THE CLAUSE FURTHER PROVIDED THAT STANDARD
SHOULD ASSUME OR INSURE AGAINST ALL RISKS "(EXCEPT) AS TO RISKS OR
LIABILITIES ASSUMED, INSURED OR INDEMNIFIED AGAINST BY THE CHARTERER
(I.E. THE UNITED STATES)  ...  " 

THE GOVERNMENT PROVIDED INSURANCE AGAINST RISKS ARISING FROM
HOSTILITIES OR WARLIKE OPERATIONS BY AN INVOLUTE AND SOMEWHAT ENIGMATIC
SET OF FORMS.  A BINDER OF INSURANCE ISSUED TO STANDARD BY THE UNITED
STATES PROVIDED:  "3.  THIS BINDER SHALL BE SUBJECT TO ALL THE RULES,
REGULATIONS, CONDITIONS AND POLICY FORMS AS PRESCRIBED BY THE WAR
SHIPPING ADMINISTRATION.  ...  "  ENDORSEMENT NO. 1 TO THE BINDER ALSO
PROVIDED:  "2.  THIS INSURANCE SHALL BE SUBJECT TO ALL THE RULES,
REGULATIONS, CONDITIONS AND POLICY FORMS AS PRESCRIBED BY THE WAR
SHIPPING ADMINISTRATION IN FORCE AT THE TIME OF ISSUANCE OF THE BINDER
AND SHALL BE SUBJECT TO THE TERMS OF THE REQUISITION CHARTER PARTY
RELATIVE TO THIS VESSEL ACCEPTED BY THE ASSURED AND ANY MODIFICATIONS
OR AMENDMENTS THERETO." 

THE STANDARD WAR SHIPPING ADMINISTRATION POLICY FORM REFERRED TO IN
THE CHARTER AND BINDER INCLUDED THE FOLLOWING CLAUSES: 

"F.C. & S. CLAUSE.  NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THE POLICY, THIS INSURANCE IS WARRANTED FREE FROM ANY
CLAIM FOR LOSS, DAMAGE, OR EXPENSE CAUSED BY OR RESULTING FROM CAPTURE,
SEIZURE, ARREST, RESTRAINT, OR DETAINMENT, OR THE CONSEQUENCES THEREOF
OR OF ANY ATTEMPT THEREAT, OR ANY TAKING OF THE VESSEL, BY REQUISITION
OR OTHERWISE, WHETHER IN TIME OF PEACE OR WAR AND WHETHER LAWFUL OR
OTHERWISE; ALSO FROM ALL CONSEQUENCES OF HOSTILITIES OR WARLIKE
OPERATIONS (WHETHER THERE BE A DECLARATION OF WAR OR NOT), PIRACY,
CIVIL WAR, REVOLUTION, REBELLION, OR INSURRECTION, OR CIVIL STRIFE
ARISING THEREFROM. 

"IF WAR RISKS ARE HEREAFTER INSURED BY ENDORSEMENT ON THE POLICY,
SUCH ENDORSEMENT SHALL SUPERSEDE THE ABOVE WARRANTY ONLY TO THE EXTENT
THAT THEIR TERMS ARE INCONSISTENT AND ONLY WHILE SUCH WAR RISK
ENDORSEMENT REMAINS IN FORCE." 

AN ENDORSEMENT TO THE POLICY FORM FURTHER PROVIDED: 

"IT IS AGREED THAT THIS INSURANCE COVERS ONLY THOSE RISKS WHICH WOULD
BE COVERED BY THE ATTACHED POLICY (INCLUDING THE COLLISION CLAUSE) IN
THE ABSENCE OF THE F.C. & S. WARRANTY CONTAINED THEREIN BUT WHICH ARE
EXCLUDED BY THAT WARRANTY." 

FN2  IN A LETTER TO STANDARD COUNSEL DATED DECEMBER 14, 1945, THE
ACTING CHIEF ADJUSTER, DIVISION OF MARITIME INSURANCE, STATED THAT "ANY
CLAIM OR SUIT BY THE UNITED STATES OF AMERICA, AS OWNERS OF THE SHIP
Y.M.S.-12, IN WHICH WE MIGHT PROVE TO BE CONCERNED, WOULD BE WAIVED." 

SEE INTERDEPARTMENTAL WAIVER PROMULGATED BY WAR SHIPPING
ADMINISTRATION IN LEGAL BULLETIN W.S.A. NO. 23, PART II, DATED JANUARY
14, 1943:

                  "II.  INTER-DEPARTMENTAL CLAIMS 

"GENERALLY STATED, IT CAN BE SAID THAT ALL TYPES OF MARITIME CLAIMS
IN FAVOR OF OR AGAINST A GOVERNMENT DEPARTMENT OR AGENCY, SUCH AS WAR
SHIPPING ADMINISTRATION, ARMY, NAVY, LEND-LEASE ADMINISTRATION, ETC.,
WHICH CLAIMS ARE IN TURN FOR OR AGAINST ANOTHER UNITED STATES
GOVERNMENT DEPARTMENT OR AGENCY, ARE TO BE WAIVED AND WILL NOT BE
ASSERTED OR PRESSED TO FINAL CONCLUSION.  ...  " 

FN3  THE CORRESPONDING INSURANCE PROVISIONS IN THE SECOND WARILDA AND
THE PRESENT CASE ARE SET FORTH BELOW:

                     WARILDA

                        (1926) A.C. AT 177-178 

"19.  THE RISKS OF WAR WHICH ARE TAKEN BY THE ADMIRALTY ARE THOSE
RISKS WHICH WOULD BE EXCLUDED FROM AN ORDINARY ENGLISH POLICY OF MARINE
INSURANCE BY THE FOLLOWING, OR SIMILAR, BUT NOT MORE EXTENSIVE CLAUSE: 

"'WARRANTED FREE OF CAPTURE, SEIZURE, AND DETENTION AND THE
CONSEQUENCES THEREOF, OR OF ANY ATTEMPT THEREAT, PIRACY EXCEPTED, AND
ALSO FROM ALL CONSEQUENCES OF HOSTILITIES OR WARLIKE OPERATIONS WHETHER
BEFORE OR AFTER DECLARATION OF WAR.'" 

       WORTHINGTON

                           "WAR RISK CLAUSES 

     .         .         .         .         . 

"IT IS AGREED THAT THIS INSURANCE COVERS ONLY THOSE RISKS WHICH WOULD
BE COVERED BY THE ATTACHED POLICY (INCLUDING THE COLLISION CLAUSE) IN
THE ABSENCE OF THE F.C. & S. WARRANTY CONTAINED THEREIN BUT WHICH ARE
EXCLUDED BY THAT WARRANTY....

                    "F.C. & S. CLAUSE 

"NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE POLICY,
THIS INSURANCE IS WARRANTED FREE FROM ANY CLAIM FOR LOSS, DAMAGE, OR
EXPENSE CAUSED BY OR RESULTING FROM CAPTURE, SEIZURE, ARREST,
RESTRAINT, OR DETAINMENT, OR THE CONSEQUENCES THEREOF OR OF ANY ATTEMPT
THEREAT, OR ANY TAKING OF THE VESSEL, BY REQUISITION OR OTHERWISE,
WHETHER IN TIME OF PEACE OR WAR AND WHETHER LAWFUL OR OTHERWISE; ALSO
FROM ALL CONSEQUENCES OF HOSTILITIES OR WARLIKE OPERATIONS.... 

"IF WAR RISKS ARE HEREAFTER INSURED BY ENDORSEMENT ON THE POLICY,
SUCH ENDORSEMENT SHALL SUPERSEDE THE ABOVE WARRANTY ONLY TO THE EXTENT
THAT THEIR TERMS ARE INCONSISTENT AND ONLY WHILE SUCH WAR RISK
ENDORSEMENT REMAINS IN FORCE." 

MR. JUSTICE DOUGLAS, DISSENTING. 

WE HAVE HERE A QUESTION NOT OF TORT LIABILITY BUT OF THE
DETERMINATION OF INSURANCE COVERAGE.  THE ACCIDENTS WHICH HAD BEEN HELD
TO BE COVERED BY THIS INSURANCE CLAUSE PRIOR TO 1942, WHEN THIS
CONTRACT WAS MADE, WOULD THEREFORE SEEM TO BE THE RELIABLE STANDARDS
FOR INTERPRETATION.  BOARD OF TRADE V. HAIN S.S. CO., (1929) A.C. 534,
AND ATTORNEY-GENERAL V. ADELAIDE S.S. CO., (1923) A.C. 292, DEALT WITH
THIS PRECISE SITUATION AND HELD THAT WHERE A SHIP ENGAGED IN A WARLIKE
OPERATION COLLIDED WITH ANOTHER VESSEL PARTLY OR WHOLLY DUE TO FAULTY
NAVIGATION ON ITS PART THE WAR INSURER WAS LIABLE.  ADHERENCE TO
BRITISH PRECEDENTS IN THIS FIELD WAS EARLY ADMONISHED.  QUEEN INS. CO.
V. GLOBE INS. CO., 263 U.S. 487, 493.  THE RULE OF THE FOREGOING
ENGLISH CASES IS FOR ME THE MOST AUTHENTIC STANDARD FOR INTERPRETING
THE PRESENT CONTRACT.  SEE GENERAL INS. CO. V. LINK, 173 F.2D 955.  AND
NONE OF THE CASES CITED AS CASTING DOUBT ON THEIR HOLDINGS PRESENTS A
CONTRARY RESULT ON A SIMILAR SET OF FACTS. 
..END :

















LIBBY, MCNEILL & LIBBY V. U.S., 340 U.S. 71 


NO. 37.  ARGUED OCTOBER 13, 1950.  - DECIDED NOVEMBER 27, 1950.  - 115
CT. CL. 290, 87 F.SUPP.  866, AFFIRMED. 


A GOVERNMENT WAR RISK INSURANCE POLICY INSURING A SHIP AGAINST "ALL
CONSEQUENCES OF HOSTILITIES OR WARLIKE OPERATIONS" DID NOT COVER A LOSS
RESULTING FROM THE STRANDING OF THE INSURED SHIP (BECAUSE OF A MISTAKE
IN STEERING) WHILE IT WAS ENGAGED IN TRANSPORTING MILITARY SUPPLIES AND
PERSONNEL BETWEEN WAR BASES, WHEN THERE WAS IN FACT NO CAUSAL
CONNECTION BETWEEN THE "WARLIKE OPERATION" AND THE STRANDING.  STANDARD
OIL CO. V. UNITED STATES, ANTE, P. 54.  PP. 71-72. 

LIBBY, MCNEILL & LIBBY V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

IN A SUIT BY PETITIONER ON A GOVERNMENT POLICY OF WAR RISK INSURANCE,
THE COURT OF CLAIMS GAVE JUDGMENT FOR THE UNITED STATES.  115 CT. CL.
290, 87 F.SUPP.  866.  THIS COURT GRANTED CERTIORARI.  339 U.S. 977. 
AFFIRMED, P. 72. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO STANDARD OIL COMPANY OF NEW JERSEY V.
UNITED STATES, 340 U.S. 54, DECIDED THIS DAY.  HERE, AS THERE, THE
GOVERNMENT INSURED PETITIONER'S SHIP AGAINST WAR RISKS INCLUDING "ALL
CONSEQUENCES OF HOSTILITIES OR WARLIKE OPERATIONS."  THE ORDINARY
MARINE RISKS WERE COVERED BY A LLOYD'S POLICY.  THE VESSEL, UNITED
STATES ARMY TRANSPORT DAVID W. BRANCH, STRANDED ON JANUARY 13, 1942,
WHEN AN INEXPERIENCED HELMSMAN MADE A MISTAKE IN STEERING.  THE
GOVERNMENT ADMITS THAT THE BRANCH WAS ENGAGED IN THE WARLIKE OPERATION
OF TRANSPORTING MILITARY SUPPLIES AND PERSONNEL BETWEEN WAR BASES, BUT
DENIES THAT THE WARLIKE PHASES OF THE OPERATION CAUSED THE STRANDING. 
THE COURT OF CLAIMS FOUND AS A FACT THAT THERE WAS NO CAUSAL CONNECTION
BETWEEN THE "WARLIKE OPERATION" AND THE STRANDING, AND ACCORDINGLY GAVE
JUDGMENT FOR THE UNITED STATES.  115 CT. CL. 290, 87 F.SUPP.  866. 
PETITIONER'S CONTENTIONS FOR REVERSAL HERE ARE SUBSTANTIALLY THE SAME
AS THOSE ADVANCED IN STANDARD OIL COMPANY OF NEW JERSEY V. UNITED
STATES, SUPRA.  THE REASONS GIVEN FOR OUR HOLDING THERE REQUIRE
AFFIRMANCE IN THIS CASE.  AFFIRMED. 

MR. JUSTICE DOUGLAS DISSENTS FOR THE REASONS SET FORTH IN HIS DISSENT
IN STANDARD OIL COMPANY OF NEW JERSEY V. UNITED STATES, 340 U.S. 54,
70, DECIDED THIS DAY. 

MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE JACKSON, DISSENTING. 

THIS IS ANOTHER MARINE INSURANCE CASE RAISING THE SAME LEGAL ISSUE AS
STANDARD OIL CO. V. UNITED STATES, ANTE, P. 54, AND IS TO BE DECIDED IN
LIGHT OF IT.  THE FACTS OF THE CASE MUST BE CONSIDERED, FOR THE
QUESTION WHETHER THE LOSS WAS A "CONSEQUENCE" OF HOSTILITIES AND
WARLIKE ACTIVITIES CANNOT BE ANSWERED IN THE ABSTRACT. 

THE BRANCH, A COMBINATION PASSENGER AND CARGO VESSEL HAVING A GROSS
TONNAGE OF 5,544 TONS, WAS CHARTERED TO THE UNITED STATES BY HER OWNERS
ON SEPTEMBER 15, 1941.  THE OWNERS INSURED AGAINST MARINE RISKS, AND
THE GOVERNMENT INSURED AGAINST "ALL CONSEQUENCES OF HOSTILITIES OR
WARLIKE OPERATIONS."  ON JANUARY 11, 1942, THE BRANCH DEPARTED FROM
SEATTLE FOR CERTAIN ALASKAN PORTS.  SHE WAS OPERATED BY THE ARMY AND
WAS LOADED WITH MATERIALS AND PERSONNEL DESTINED FOR WAR BASES IN
ALASKA.  THE SAILING ORDERS ISSUED BY THE ARMY TRANSPORT SERVICE
DIRECTED THE BRANCH TO FOLLOW THE INSIDE PASSAGE TO ALASKA BECAUSE
THERE WAS DANGER OF SUBMARINE ATTACK IF THE OUTSIDE ROUTE ACROSS OPEN
SEAS WERE FOLLOWED.  ON THE NIGHT OF JANUARY 13, THE BRANCH, RUNNING ON
A COURSE 350 YARDS OFF HANMER ISLAND, DIVERGED FROM THE COURSE AND
HEADED TOWARD THE ISLAND.  THE HELMSMAN, WHO WAS FOUND TO BE
INCOMPETENT, TURNED IN AN OPPOSITE DIRECTION FROM THAT ORDERED BY THE
PILOT WHEN THE DIVERGENCE WAS NOTICED, AND THE VESSEL RAN AGROUND ON A
PARTIALLY SUBMERGED REEF. 

HERE, AS IN THE STANDARD OIL CASE, IT IS CLEAR THAT THE VESSEL WAS
ENGAGED IN A WARLIKE OPERATION, AND THE COURT OF CLAIMS SO CONCLUDED. 
THE ONLY QUESTION IS WHETHER IN THE CIRCUMSTANCES THE RUNNING AGROUND
IS FAIRLY TO BE CONSIDERED A "CONSEQUENCE" OF THE WARLIKE ACTIVITY. 
THE COURT BELOW CONCLUDED THAT IT COULD NOT LOOK BEYOND THE FAULT OF
THE HELMSMAN ALTHOUGH IT FOUND SPECIALLY A NUMBER OF FACTS INDICATING
THAT THE COLLISION GREW OUT OF THE WARLIKE ACTIVITY OF THE VESSEL. 

(1)  THE COURT FOUND THAT THE "DEPERMING PROCESS TO WHICH THE VESSEL
WAS SUBJECTED CREATED AN UNSTABLE AND VARIABLE MAGNETIC CONDITION IN
THE VESSEL WHICH IN TURN CREATED AN UNSTABLE, VARIABLE, AND UNRELIABLE
CONDITION OF HER MAGNETIC COMPASSES WHEN REINSTALLED.  ...  IN NORMAL
CIRCUMSTANCES A VESSEL SUCH AS THE BRANCH WOULD NOT PUT TO SEA WITH THE
COMPASSES IN THAT CONDITION.  ...  (BUT) BECAUSE OF THE URGENT MILITARY
NECESSITY FOR THE TRANSPORTATION OF THE PERSONNEL AND MATERIALS ON
BOARD THE VESSEL TO THE WAR BASES IN ALASKA, THE VOYAGE WAS UNDERTAKEN
NOTWITHSTANDING THE KNOWN UNRELIABLE CONDITION OF THE COMPASSES."  115
CT. CL. 290, 301, 87 F.SUPP.  866, 871.  THE COURT FURTHER FOUND THAT
THE HELMSMAN WAS STEERING "BY THE COMPASS UNDER DIRECTIONS FROM THE
PILOT" PRIOR TO THE STRANDING, AND THAT THE "INSTABILITY OF THE
STEERING COMPASS AS A RESULT OF THE DEPERMING OPERATION MAY HAVE BEEN A
CONTRIBUTING FACTOR TO THE SHIP'S DEVIATION FROM HER COURSE."  115 CT.
CL. AT 304, 305, 87 F.SUPP.  AT 873, 874. 

(2)  THE COURT FOUND THAT THE MASTER "RECEIVED INSTRUCTIONS FROM THE
OFFICE OF THE NAVY ROUTING OFFICER TO PROCEED AT HER MAXIMUM FULL AHEAD
SPEED, WHICH WAS IN EXCESS OF HER NORMAL AND USUAL PEACETIME SPEED, AND
WAS SO OPERATING AT THE TIME OF HER STRANDING."  115 CT. CL. AT 303, 87
F.SUPP.  AT 872. 

(3)  THE COURT FOUND THAT THE INSIDE PASSAGE THROUGH WHICH THE BRANCH
WAS ORDERED TO PROCEED IN ORDER TO AVOID SUBMARINES, "IS NARROW AND
TORTUOUS, CONTAINS SUBMERGED ROCKS, REEFS, AND SHOALS, AND SWIFT,
STRONG, AND UNPREDICTABLE CURRENTS."  115 CT. CL. AT 295, 87 F.SUPP. 
AT 868.  IT FOUND THAT THE INSIDE PASSAGE "IS NAVIGATIONALLY DANGEROUS,
PARTICULARLY IN THE WINTERTIME WHEN WEATHER CONDITIONS INTERFERE WITH
THE OBSERVATION OF LANDMARKS, LIGHTS, AND OTHER VISUAL AIDS, AND IT HAS
BEEN THE SCENE OF NUMEROUS VESSEL STRANDINGS AND MARINE CASUALTIES." 
115 CT. CL. AT 296, 87 F.SUPP.  AT 868. 

(4)  THE COURT FOUND:  "BECAUSE OF MANPOWER SHORTAGE DUE TO THE WAR
IT WAS DIFFICULT TO PROCURE EXPERIENCED AND COMPETENT HELMSMEN, AND FOR
THAT REASON THE HELMSMEN ON BOARD WERE INCOMPETENT AND INEXPERIENCED
AND THERE WAS A STANDING ORDER FOR THE MATE ON WATCH TO STAND ALONGSIDE
THE HELMSMAN TO WATCH HIS STEERING."  115 CT. CL. AT 305, 87 F.SUPP. 
AT 873. 

IN ITS OPINION THE COURT BELOW CONCLUDED THAT THE SPEED OF THE SHIP
HAD NOTHING TO DO WITH THE STRANDING.  IT ALSO CONSIDERED THAT SAILING
THE INSIDE PASSAGE, THE INCOMPETENT HELMSMAN, AND THE WANDERING COMPASS
WERE CONSEQUENCES OF WAR, RATHER THAN THE WARLIKE OPERATION OF THE
SHIP, SINCE CIVILIAN VESSELS WOULD HAVE BEEN SUBJECT TO THE SAME
CONDITIONS.  BUT THIS MISSES THE POINT, FOR THE COURT ITSELF FOUND THAT
THE VESSEL PUT TO SEA WITH UNRELIABLE COMPASSES ONLY "BECAUSE OF THE
URGENT MILITARY NECESSITY FOR THE TRANSPORTATION OF THE PERSONNEL AND
MATERIALS ON BOARD THE VESSEL TO THE WAR BASES IN ALASKA."  115 CT. CL.
AT 301, 87 F.SUPP.  AT 871.  THERE IS NOTHING TO SUGGEST THAT ANY
CIVILIAN VESSEL WOULD VOLUNTARILY EMBARK ON SUCH A VOYAGE THROUGH A
TORTUOUS PASSAGE, AT HIGH SPEED, WITH UNRELIABLE COMPASSES AND
INCOMPETENT PERSONNEL.  WHERE THE CONTRIBUTING FORCES OF AN OCCURRENCE
ARE IN SUCH LARGE PART PATENTLY REFERABLE TO THE WARLIKE OPERATION OF
THE VESSEL, THE INSURER AGAINST ALL CONSEQUENCES OF HOSTILITIES AND
WARLIKE OPERATIONS SHOULD NOT BE RELIEVED OF LIABILITY BECAUSE, UNDER
SUCH CIRCUMSTANCES, THE HELMSMAN WAS INCOMPETENT AND FAILED TO FOLLOW
THE ORDERS OF THE PILOT. 
..END :



UNITED STATES V. GYPSUM CO., 340 U.S. 76 


NO. 30.  ARGUED OCTOBER 19, 1950.  - DECIDED NOVEMBER 27, 1950.  -
REVERSED AND REMANDED. 


1.  ON THE REMAND ORDERED BY THIS COURT IN UNITED STATES V. UNITED
STATES GYPSUM CO., 333 U.S. 364, OF THIS SUIT TO ENJOIN VIOLATIONS OF
THE SHERMAN ACT, THE DISTRICT COURT ENTERED A SUMMARY JUDGMENT FOR THE
UNITED STATES.  THE DISTRICT COURT FOUND THAT THE DEFENDANTS HAD ACTED
IN CONCERT TO RESTRAIN TRADE AND FIX PRICES IN THE GYPSUM BOARD
INDUSTRY IN THE EASTERN TERRITORY OF THE UNITED STATES, AND HAD
MONOPOLIZED THAT INDUSTRY, IN VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN
ACT.  HELD: 

(A)  THE PREVIOUS DECISION OF THIS COURT, 333 U.S. 364, JUSTIFIED A
SUMMARY JUDGMENT FOR THE UNITED STATES ON THE ISSUE OF THE VIOLATION OF
THE SHERMAN ACT, WHEN THE RECORD WAS CONSIDERED IN THE LIGHT OF THIS
COURT'S OPINION AND DEFENDANTS' OFFER OF PROOF ON THE REMAND.  P. 82. 

(B)  TO ESTABLISH A VIOLATION OF THE SHERMAN ACT, IT WAS SUFFICIENT
TO SHOW THAT THE DEFENDANTS, CONSTITUTING ALL FORMER COMPETITORS IN AN
ENTIRE INDUSTRY, HAD ACTED IN CONCERT TO RESTRAIN COMMERCE IN AN ENTIRE
INDUSTRY UNDER PATENT LICENSES IN ORDER TO ORGANIZE THE INDUSTRY AND
STABILIZE PRICES.  IT WAS NOT NECESSARY THEN OR NOW TO DECIDE WHETHER A
MERE PLURALITY OF LICENSES, EACH CONTAINING A PRICE-FIXING PROVISION,
VIOLATES THE SHERMAN ACT.  PP. 84-85. 

(C)  ON THE REMAND, THE DEFENDANTS WERE ENTITLED TO INTRODUCE ANY
EVIDENCE FROM WHICH ALL OR ANY OF THEM MIGHT BE FOUND NOT TO HAVE
VIOLATED THE SHERMAN ACT, AND THEY HAD A RIGHT TO LAY BEFORE THE COURT
FACTS THAT WERE PERTINENT TO THE COURT'S DECISION ON THE TERMS OF THE
DECREE; BUT THE TRIAL COURT WAS NOT REQUIRED TO ADMIT EVIDENCE THAT
WOULD NOT AFFECT THE OUTCOME OF THE PROCEEDINGS.  P. 85. 

(D)  A SUMMARY JUDGMENT, UNDER RULE 56 OF THE FEDERAL RULES OF CIVIL
PROCEDURE, WAS PERMISSIBLE ON THE REMAND.  P. 86. 

(E)  UPON THE EVIDENCE INTRODUCED BY THE GOVERNMENT AND THAT
PROFFERED BY THE DEFENDANTS, A FINDING THAT DEFENDANTS HAD NOT VIOLATED
THE SHERMAN ACT WOULD HAVE BEEN CLEARLY ERRONEOUS, IN VIEW OF THE
CONCERT OF ACTION TO FIX INDUSTRY PRICES BY THE TERMS OF THE PATENT
LICENSES.  PP. 86-87. 

(F)  THE DISTRICT COURT'S PRELIMINARY STATEMENT AND SUMMARY DECREE
ARE CONSTRUED AS AN ADJUDICATION OF VIOLATION OF THE SHERMAN ACT BY THE
ACTION IN CONCERT OF THE DEFENDANTS THROUGH THE FIXED-PRICE LICENSES,
ACCEPTING AS TRUE THE UNDERLYING FACTS IN THE DEFENDANTS' PROFFER OF
PROOF; AND THAT CONCLUSION ENTITLED THE GOVERNMENT ONLY TO RELIEF BASED
ON THAT FINDING AND THE PROFFERED FACTS.  PP. 87-88. 

2.  UPON A FINDING OF CONSPIRACY IN RESTRAINT OF TRADE AND A MONOPOLY
IN A CIVIL PROCEEDING UNDER THE SHERMAN ACT, THE TRIAL COURT HAS THE
DUTY TO COMPEL ACTION BY THE CONSPIRATORS THAT WILL, SO FAR AS
PRACTICABLE, CURE THE ILL EFFECTS OF THE ILLEGAL CONDUCT, AND ASSURE
THE PUBLIC FREEDOM FROM ITS CONTINUANCE.  P. 88. 

3.  THE RELIEF WHICH THE TRIAL COURT MAY AFFORD FROM VIOLATIONS OF
THE SHERMAN ACT IS NOT LIMITED TO PROHIBITION OF THE PROVEN MEANS BY
WHICH THE EVIL WAS ACCOMPLISHED, BUT MAY RANGE BROADLY THROUGH
PRACTICES CONNECTED WITH ACTS ACTUALLY FOUND TO BE ILLEGAL; EVEN ACTS
WHICH MAY BE ENTIRELY PROPER WHEN VIEWED ALONE MAY BE PROHIBITED.  PP.
88-89. 

4.  PARTICIPANTS IN A CONSPIRACY IN VIOLATION OF THE SHERMAN ACT
SHOULD, SO FAR AS PRACTICABLE, BE DENIED FUTURE BENEFITS FROM THEIR
FORBIDDEN CONDUCT.  P. 89. 

5.  WHILE THE DETERMINATION OF THE SCOPE OF A DECREE IN A SHERMAN ACT
CASE IS PECULIARLY THE RESPONSIBILITY OF THE TRIAL COURT, THIS COURT
MAY INTERVENE WHEN THERE ARE INAPPROPRIATE PROVISIONS IN THE DECREE. 
P. 89. 

6.  IN RESOLVING DOUBTS AS TO THE DESIRABILITY OF INCLUDING IN AN ANTI
TRUST DECREE PROVISIONS DESIGNED TO RESTORE FUTURE FREEDOM OF TRADE,
THE COURTS SHOULD GIVE WEIGHT TO THE FACT OF CONVICTION AS WELL AS TO
THE CIRCUMSTANCES UNDER WHICH THE ILLEGAL ACTS OCCUR.  ACTS IN
DISREGARD OF LAW CALL FOR REPRESSION BY STERNER MEASURES THAN WHERE THE
CONDUCT COULD REASONABLY HAVE BEEN THOUGHT PERMISSIBLE.  PP. 89-90. 

7.  UPON CONSIDERATION OF THE GOVERNMENT'S PROPOSED AMENDMENTS TO THE
DECREE OF THE DISTRICT COURT IN THIS CASE, HELD: 

(A)  THE DECREE'S DEFINITION OF GYPSUM BOARD IS TOO RESTRICTIVE, AND
THE WORDS "AND EMBODYING ANY OF THE INVENTIONS OR IMPROVEMENTS SET
FORTH AND CLAIMED IN ANY OF THE PATENTS" SHOULD BE STRICKEN, IF THE
DEFINITION IS USED.  P. 90. 

(B)  ALTHOUGH THE COMPLAINT OF SHERMAN ACT VIOLATION WAS RESTRICTED
TO THE EASTERN TERRITORY OF THE UNITED STATES AND THE EVIDENCE APPLIED
ONLY TO THAT AREA, THE CLOSE SIMILARITY BETWEEN INTERSTATE COMMERCE
VIOLATIONS OF THE SHERMAN ACT IN EASTERN TERRITORY AND WESTERN
TERRITORY JUSTIFIES THE ENLARGEMENT OF THE GEOGRAPHICAL SCOPE OF THE
DECREE TO INCLUDE ALL INTERSTATE COMMERCE.  P. 90. 

(C)  THE DECREE SHOULD BE EXTENDED TO INCLUDE ALL GYPSUM PRODUCTS
INSTEAD OF PATENTED GYPSUM BOARD ALONE.  PP. 90-91. 

(D)  THE DECREE SHOULD FORBID STANDARDIZATION OF TRADE PRACTICES
THROUGH CONCERTED AGREEMENT.  P. 91. 

(E)  THE DECREE SHOULD FORBID CONCERTED USE OF DELIVERED PRICE
SYSTEMS; BUT, IN ORDER TO AVOID ANY POSSIBILITY THAT AN INDIVIDUAL'S
MEETING OF COMPETITORS' PRICES MAY BE CONSTRUED AS A CONTEMPT OF THE
DECREE, THE PROPOSED PROVISION RELATIVE TO DELIVERED PRICE SYSTEMS
SHOULD READ AS FOLLOWS: "5.  AGREEING UPON ANY PLAN OF SELLING OR
QUOTING GYPSUM PRODUCTS AT PRICES CALCULATED OR DETERMINED PURSUANT TO
A DELIVERED PRICE PLAN WHICH RESULTS IN IDENTICAL PRICES OR PRICE
QUOTATIONS AT GIVEN POINTS OF SALES OR QUOTATION BY DEFENDANTS USING
SUCH PLAN;".  PP. 91-92. 

(F)  IN THIS CASE THERE SHOULD BE NO REQUIREMENT OF RECIPROCAL GRANTS
UNDER PATENTS; BUT THE UNITED STATES GYPSUM COMPANY SHOULD BE REQUIRED
TO LICENSE ALL ITS PATENTS IN THE GYPSUM PRODUCTS FIELD TO ALL
APPLICANTS ON EQUAL TERMS.  PP. 93-94. 

(G)  WHETHER THE TERM FOR COMPULSORY LICENSING OF NEW PATENTS SHOULD
BE FIVE YEARS, OR A LONGER PERIOD WITH A PRIVILEGE TO THE APPELLEES TO
MOVE FOR A LIMITATION, IS IN THE DISCRETION OF THE DISTRICT COURT,
WHICH SHOULD PROVIDE FOR ITS DETERMINATION OF A REASONABLE ROYALTY
EITHER IN EACH INSTANCE OF FAILURE TO AGREE OR BY AN APPROVED FORM OR
BY ANY OTHER PLAN IN ITS DISCRETION.  P. 94. 

(H)  THE DECREE SHOULD NOT PLACE UPON THE UNITED STATES GYPSUM
COMPANY THE BURDEN OF ESTABLISHING THE REASONABLENESS OF THE REQUESTED
ROYALTY; AND THIS COURT DOES NOT NOW DECIDE WHERE THE BURDEN OF PROOF
OF VALUE LIES OR WHO HAS THE DUTY TO GO FORWARD WITH THE EVIDENCE IN
ANY PARTICULAR INSTANCE.  P. 94. 

(I)  THE GOVERNMENT'S PROPOSED PROVISION THAT THE DECREE SHALL NOT BE
TAKEN AS PREVENTING AN "APPLICANT" (HERE CONSTRUED AS MEANING LICENSEE)
ATTACKING THE PATENT OR AS IMPORTING VALUE TO IT SHOULD BE OMITTED,
LEAVING THE PARTIES TO EXISTING RULES OF LAW.  P. 94. 

(J)  THE GOVERNMENT'S SUGGESTED PROVISIONS FOR INSPECTION OF
LICENSEES' BOOKS AND REPORTS TO LICENSOR ARE APPROVED.  P. 95. 

(K)  THERE SHOULD BE INCLUDED IN THE DECREE A PROVISION GRANTING THE
GOVERNMENT ACCESS TO THE RECORDS AND PERSONNEL OF THE DEFENDANTS FOR
THE PURPOSE OF ADVISING THE GOVERNMENT WITH RESPECT TO DEFENDANTS'
COMPLIANCE WITH THE JUDGMENT.  P. 95. 

(L)  THE PROVISIONS OF ARTICLE V OF THE DECREE ARE ADEQUATE TO BAR
THE INDIVIDUAL DEFENDANTS, WHO SIGNED THE QUESTIONED AGREEMENTS IN
THEIR CAPACITIES AS OFFICIALS OF THE COMPANIES, FROM ENGAGING IN
SIMILAR CONSPIRACIES.  P. 95. 

(M)  THIS COURT SEES NO REASON TO INTERFERE WITH THE DESCRETION OF
THE DISTRICT COURT IN ASSESSING THE DEFENDANT COMPANIES 50%, RATHER
THAN 100%, OF THE COSTS TO BE TAXED IN THE PROCEEDING.  P. 95. 

UNITED STATES V. UNITED STATES GYPSUM CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

FROM A DECREE OF A THREE-JUDGE DISTRICT COURT ENJOINING VIOLATIONS OF
THE SHERMAN ACT, THE UNITED STATES APPEALED DIRECTLY TO THIS COURT. 
ARTICLE III OF THE DECREE, FINDING THAT THE DEFENDANTS HAD VIOLATED THE
SHERMAN ACT, WAS AFFIRMED BY THIS COURT.  339 U.S. 960.  THE ISSUES
LEFT FOR DETERMINATION WERE THOSE RAISED BY THE UNITED STATES UPON
OBJECTIONS TO PROVISIONS OF THE DECREE.  REVERSED AND REMANDED, P. 95. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING WAS FILED IN 1940 IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT OF COLUMBIA BY THE UNITED STATES UNDER THE
AUTHORITY OF THE ATTORNEY GENERAL.  15 U.S.C. SEC. 4.  THE COMPLAINT
CHARGED, P44, A LONG-CONTINUED CONSPIRACY BY DEFENDANTS IN RESTRAINT OF
TRADE IN GYPSUM PRODUCTS AMONG THE SEVERAL STATES AND IN THE DISTRICT
OF COLUMBIA, AND A SIMILAR MONOPOLY, ALL IN VIOLATION OF SECS. 1, 2 AND
3 OF THE SHERMAN ANTITRUST ACT, 26 STAT. 209, AS AMENDED, 15 U.S.C.
SECS. 1, 2, 3.  THE DEFENDANTS, APPELLEES HERE, WERE UNITED STATES
GYPSUM CO., PATENTEE, AND VARIOUS OTHER GYPSUM BOARD MANUFACTURERS, ITS
LICENSEES, AND CERTAIN OF THEIR OFFICERS.  IT WAS ALLEGED THAT THE
COMBINATION CARRIED OUT ITS UNLAWFUL PURPOSES AS INDICATED IN THE
EXCERPT FROM THE COMPLAINT QUOTED BELOW.  FN1  CIVIL RELIEF, THROUGH
PROHIBITORY AND MANDATORY ORDERS, WAS PRAYED IN VARIOUS APPROPRIATE
FORMS.  AFTER THE UNITED STATES CONCLUDED ITS EVIDENCE IN CHIEF AT THE
TRIAL, A THREE-JUDGE DISTRICT COURT, 15 U.S.C. SEC. 28, GRANTED
APPELLEES' MOTION TO DISMISS UNDER RULE 41(B) OF THE FEDERAL RULES OF
CIVIL PROCEDURE ON THE GROUND THAT NO RIGHT TO RELIEF HAD BEEN SHOWN. 
ON DIRECT APPEAL, 15 U.S.C. SEC. 29, WE REVERSED THE JUDGMENT OF
DISMISSAL, MARCH 8, 1948, UNITED STATES V. UNITED STATES GYPSUM CO.,
333 U.S. 364, AND REMANDED THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH OUR OPINION. 

ON REMAND A CONFERENCE TOOK PLACE AT THE GOVERNMENT'S SUGGESTION. 
THE COURT ACTED UNDER PROCEDURE SIMILAR TO PRETRIAL, RULE 16, AND ITS
INHERENT POWER TO DIRECT A CASE SO AS TO AID IN ITS DISPOSITION.  AS A
RESULT OF THAT CONFERENCE, WITHOUT OBJECTION FROM ANY PARTY, THE
GOVERNMENT FILED A MOTION FOR A SUMMARY JUDGMENT UNDER RULE 56 ON THE
GROUND THAT THERE WAS NO GENUINE ISSUE AS TO ANY MATERIAL FACT, AND THE
APPELLEES FILED AN OFFER OF PROOF, DIRECTED AT MATTERS AS TO WHICH
APPELLEES WERE OF THE OPINION A GENUINE ISSUE EXISTED.  A SUMMARY
JUDGMENT, WITHOUT OTHER FINDINGS THAN THOSE CONTAINED IN THE DECREE,
WAS ENTERED NOVEMBER 7, 1949, ON APPELLANT'S MOTION.  FN2  BOTH
PLAINTIFF AND DEFENDANTS TOOK DIRECT APPEALS FROM THE DECREE TO THIS
COURT.  15 U.S.C. SEC. 29.  DEFENDANTS' APPEAL OBJECTED TO SUMMARY
JUDGMENT ON THE GROUND OF THEIR RIGHT TO INTRODUCE MATERIAL EVIDENCE. 
THAT APPEAL WAS DISMISSED BY THIS COURT.  339 U.S. 959.  THE REASONS
FOR OUR ACTION LAY IN THE FACT THAT OUR HOLDING IN OUR FIRST OPINION,
333 U.S. 364, JUSTIFIED A SUMMARY JUDGMENT FOR PLAINTIFF ON THE ISSUE
OF THE VIOLATION OF THE SHERMAN ACT WHEN THE RECORD WAS CONSIDERED IN
THE LIGHT OF OUR OPINION AND DEFENDANTS' OFFER OF PROOF ON THE REMAND. 
THIS POINT IS DISCUSSED LATER IN THIS OPINION UNDER SUBDIVISION I. 

PROBABLE JURISDICTION WAS NOTED ON THE APPEAL OF THE UNITED STATES. 
THIS IS THE CASE WE ARE NOW DISCUSSING.  FOR THE SAME REASONS THAT WE
DISMISSED DEFENDANTS' APPEAL, THIS COURT AFFIRMED ARTICLE III OF THE
DISTRICT COURT DECREE.  OUR ORDER ALSO CARRIED THE SANCTION OF AN
INJUNCTION AGAINST VIOLATION OF THE DECREE, "PENDING FURTHER ORDER OF
THIS COURT."  339 U.S. 960. 

THE ISSUES LEFT FOR DETERMINATION IN THIS APPEAL ARE THOSE RAISED BY
THE UNITED STATES IN ITS EFFORT TO HAVE THE PROVISIONS OF THE DISTRICT
COURT DECREE ENLARGED.  IT SEEKS TO EXTEND THE INJUNCTIONS AGAINST
VIOLATIONS OF THE SHERMAN ACT TO COVER GYPSUM PRODUCTS INSTEAD OF BEING
LIMITED TO GYPSUM BOARD AS DEFINED IN THE DECREE; AND TO INCLUDE
INTERSTATE COMMERCE GENERALLY INSTEAD OF LIMITING THE TERRITORIAL SCOPE
OF THE DECREE TO THE EASTERN PORTION OF THE UNITED STATES.  IT ALSO
SEEKS CHANGES THAT FORBID SPECIFIC PRACTICES, IN ADDITION TO PRICE
FIXING, SUCH AS STANDARDIZING PRODUCTS, CLASSIFYING CUSTOMERS, OR
ADOPTING DELIVERED PRICE SYSTEMS, ALL PURSUANT TO THE PRINCIPAL
CONSPIRACY.  IT SEEKS TO COMPEL LICENSING OF ALL PATENTS BY UNITED
STATES GYPSUM; TO EMPOWER THE DEPARTMENT OF JUSTICE TO INSPECT CERTAIN
RECORDS; TO EXTEND THE DECREE'S TERMS TO COVER INDIVIDUAL DEFENDANTS;
AND TO REQUIRE THE DEFENDANTS TO PAY ALL COSTS. 

                                  I. 

PROCEDURE ON REMAND.  - IN DETERMINING THE PRESENT ISSUES, OF THE
PROCEDURAL PROBLEMS PRESENTED BY OUR REMAND.  OUR DECREE WAS A REVERSAL
OF THE TRIAL COURT'S DISMISSAL OF THE COMPLAINT ON THE MERITS AT THE
COMPLETION OF PLAINTIFF'S, THE UNITED STATES', PRESENTATION OF ITS
EVIDENCE.  IN OUR OPINION, 333 U.S. 364, 389, WE SAID THAT 

"THE INDUSTRY-WIDE LICENSE AGREEMENTS, ENTERED INTO WITH KNOWLEDGE ON
THE PART OF LICENSOR AND LICENSEES OF THE ADHERENCE OF OTHERS, WITH THE
CONTROL OVER PRICES AND METHODS OF DISTRIBUTION THROUGH THE AGREEMENTS
AND THE BULLETINS, WERE SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE OF
CONSPIRACY." 

WE SAID THAT THE INTENTION OF UNITED STATES GYPSUM AND ITS LICENSEES
TO ACT IN CONCERT TO ATTAIN THE PURPOSE OF THE CONSPIRACY, RESTRAINT OF
TRADE AND MONOPOLY, WAS APPARENT FROM THE FACE OF THE LICENSE
AGREEMENTS.  PP. 389, 400. 

"THE LICENSOR WAS TO FIX MINIMUM PRICES BINDING BOTH ON ITSELF AND
ITS LICENSEES; THE ROYALTY WAS TO BE MEASURED BY A PERCENTAGE OF THE
VALUE OF ALL GYPSUM PRODUCTS, PATENTED OR UNPATENTED; THE LICENSE COULD
NOT BE TRANSFERRED WITHOUT THE LICENSOR'S CONSENT; THE LICENSEE OPENED
ITS BOOKS OF ACCOUNTS TO THE LICENSOR; THE LICENSEE WAS PROTECTED
AGAINST COMPETITION WITH MORE FAVORABLE LICENSES AND THERE WAS A
CANCELLATION CLAUSE FOR FAILURE TO LIVE UP TO THE ARRANGEMENTS." 

WE STRESSED THE ACTING IN CONCERT AS DIFFERENTIATING THE CASE FROM
UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, DISCUSSED ON PP.
400 AND 401 OF 333 U.S., THE CONCERT OF ACTION BEING ESTABLISHED BY THE
FAVORED LICENSEE CLAUSE OF THE STANDARD LICENSE AGREEMENT.  333 U.S. AT
410.  FN3  IN UNITED STATES V. LINE MATERIAL CO., 333 U.S. 287, DECIDED
THE SAME DAY AS THE GYPSUM CASE, THE OPINION OF THE COURT DISCUSSED THE
THEN STANDING OF THE GENERAL ELECTRIC RULE AS FOLLOWS: 

"WE ARE THUS CALLED UPON TO MAKE AN ADJUSTMENT BETWEEN THE LAWFUL
RESTRAINT ON TRADE OF THE PATENT MONOPOLY AND THE ILLEGAL RESTRAINT
PROHIBITED BROADLY BY THE SHERMAN ACT.  THAT ADJUSTMENT HAS ALREADY
REACHED THE POINT, AS THE PRECEDENTS NOW STAND, THAT A PATENTEE MAY
VALIDLY LICENSE A COMPETITOR TO MAKE AND VEND WITH A PRICE LIMITATION
UNDER THE GENERAL ELECTRIC CASE AND THAT THE GRANT OF PATENT RIGHTS IS
THE LIMIT OF FREEDOM FROM COMPETITION  ...  "  P. 310. 

WE ADDED, PP. 311 AND 312, THAT WHILE THE GENERAL ELECTRIC RULE
PERMITTED A PATENTEE TO FIX THE PRICE THE LICENSEE OF PATENTS MAY
CHARGE FOR THE DEVICE, SEPARATE PATENT OWNERS COULD NOT COMBINE THE
PATENTS AND THUS REACH AN AGREEMENT TO FIX THE PRICE FOR THEMSELVES AND
THEIR LICENSEES.  THERE WAS NO HOLDING IN OUR FIRST OPINION IN GYPSUM
THAT MERE MULTIPLE LICENSING VIOLATED THE SHERMAN ACT.  FN4  THE FACTS
AND THE LANGUAGE PLACED OUR JUDGMENT SQUARELY ON THE BASIS THAT 

"IT WOULD BE SUFFICIENT TO SHOW THAT THE DEFENDANTS, CONSTITUTING ALL
FORMER COMPETITORS IN AN ENTIRE INDUSTRY, HAD ACTED IN CONCERT TO
RESTRAIN COMMERCE IN AN ENTIRE INDUSTRY UNDER PATENT LICENSES IN ORDER
TO ORGANIZE THE INDUSTRY AND STABILIZE PRICES."  P. 401.  FN5 

AS APPEARS FROM THE PRELIMINARY STATEMENT OF ITS DECREE, THE TRIAL
COURT ACTED ON THAT UNDERSTANDING OF OUR HOLDING.  SEE APPENDIX, POST,
P. 96.  IT WAS NOT NECESSARY TO REACH THE ISSUE AS TO WHETHER A MERE
PLURALITY OF LICENSES, EACH CONTAINING A PRICE-FIXING PROVISION,
VIOLATES THE SHERMAN ACT.  IT IS NOT NECESSARY NOW. 

THE REFERENCE, 333 U.S. AT 389, TO THE ESTABLISHMENT OF A PRIMA FACIE
CASE OF CONSPIRACY BY CONSCIOUS INDUSTRY CONCERT IN PRICE FIXING WAS
DIRECTED AT THE BASIS FOR THE ADMISSION OF THE SEPARATE DECLARATIONS OF
ALLEGED CONSPIRATORS.  SECTION V, PP. 399-402, OF THE OPINION, HOWEVER,
CONTAINS OUR DETERMINATION THAT AN INDUSTRY'S CONCERTED PRICE FIXING BY
LICENSE VIOLATES THE SHERMAN ACT PER SE.  UNITED STATES V. PARAMOUNT
PICTURES, 334 U.S. 131, 143. 

OF COURSE, WHEN WE REMANDED THE CASE TO THE DISTRICT COURT THE
DEFENDANTS HAD THE RIGHT TO INTRODUCE ANY EVIDENCE THAT THEY MIGHT HAVE
AS TO WHY ALL OR ANY ONE OF THEM SHOULD BE FOUND NOT TO HAVE VIOLATED
THE SHERMAN ACT.  OUR REFERENCE AT 333 U.S. 402, FOOTNOTE 20, TO
GULBENKIAN V. GULBENKIAN, 147 F.2D 173, SHOWS THAT.  SEE FEDERAL
DEPOSIT INS. CORP. V. MASON, 115 F.2D 548, 552; BOWLES V. BIBERMAN
BROS., 152 F.2D 700, 705.  FURTHERMORE, EVEN THOUGH DEFENDANTS HAD NO
SUBSTANTIAL EVIDENCE TO OVERCOME THE PRIMA FACIE CONCLUSION OF SHERMAN
ACT VIOLATION, THEY HAD THE RIGHT TO LAY FACTS BEFORE THE COURT THAT
WERE PERTINENT TO THE COURT'S DECISION ON THE TERMS OF THE DECREE; FOR
EXAMPLE, THE PURPOSE OF THE CONCERTED ACTION, OR THE REASON FOR MAKING
NEW PATENTS AVAILABLE TO THE LICENSEES, OR WILLINGNESS TO LICENSE ALL
APPLICANTS FOR THE PATENT PRIVILEGE.  SUCH RIGHTS, HOWEVER, DID NOT
REQUIRE THE TRIAL COURT TO ADMIT EVIDENCE THAT WOULD NOT AFFECT THE
OUTCOME OF THE PROCEEDINGS.  THEY DID NOT AFFECT THE POWER OF THE TRIAL
COURT TO DIRECT THE PROGRESS OF THE CASE IN SUCH A WAY AS TO AVOID A
WASTE OF TIME. 

A SUMMARY JUDGMENT, UNDER RULE 56, WAS PERMISSIBLE ON REMAND.  IT WAS
ALLOWED, AS THE LAST PARAGRAPH OF THE PRELIMINARY STATEMENT OF THE
DECREE SHOWS, ON THE COURT'S UNDERSTANDING THAT OUR OPINION "HELD THAT
THE DEFENDANTS ACTED IN CONCERT TO RESTRAIN TRADE AND COMMERCE IN THE
GYPSUM BOARD INDUSTRY AND MONOPOLIZED SAID TRADE AND COMMERCE AMONG THE
SEVERAL STATES IN THAT SECTION HEREINAFTER REFERRED TO AS THE EASTERN
TERRITORY OF THE UNITED STATES  ...  "  AS HERETOFORE EXPLAINED, THAT
CONCLUSION FOLLOWED FROM OUR DECISION, IF NO EVIDENCE THAT CONTROVERTED
OUR RULING WAS OFFERED.  IT IS THEREFORE NECESSARY TO EXAMINE BRIEFLY
THE OFFER OF EVIDENCE. 

THE OFFER CONTAINED SIXTY-TWO PARAGRAPHS OF PROPOSED EVIDENCE.  A
FULL EXPOSITION IS IMPRACTICABLE.  STRESS WAS LAID ON THE AVAILABLE
EVIDENCE TO REBUT OUR FINDING OF AN INDUSTRY PLAN TO STABILIZE PRICES. 
FN6  EVIDENCE WAS OFFERED TO SHOW THE LICENSES WERE FOR SETTLEMENT OF
ALLEGED INFRINGEMENTS, AND INDIVIDUAL IN CHARACTER AND WERE NOT USED AS
A SUBTERFUGE TO GAIN PRICE CONTROL.  SUCH EVIDENCE WOULD NOT AFFECT OUR
DETERMINATION, SET OUT ABOVE, THAT PRICE-FIXING LICENSES MADE IN
KNOWING CONCERT BY STANDARDIZED PRICE REQUIREMENTS VIOLATED THE SHERMAN
ACT BY THEIR VERY EXISTENCE. 

DEFENDANTS OFFERED TO PROVE THAT ROYALTIES BASED ON UNPATENTED GYPSUM
BOARD WERE COMPENSATION FOR PATENT LICENSES AND INSTALLMENT PAYMENT FOR
PRIOR INFRINGEMENT DAMAGES.  SUCH PROOF WOULD NOT AFFECT THE FACT THAT
SUCH A ROYALTY ADDED TO THE COST OF PRODUCING UNPATENTED BOARD. 

PROOF WAS OFFERED THAT COVENANTS AGAINST TRANSFER OF LICENSES, FOR
PRICE MAINTENANCE AND FOR EQUALITY OF LICENSE TERMS, AND BULLETIN
ORDERS AGAINST REBATES BY SELLING OTHER PRODUCTS AT A CHEAPER PRICE
WHEN PATENTED ARTICLES WERE SOLD, WERE TO PROTECT THE LICENSOR'S
MONOPOLY UNDER ITS LETTERS PATENT.  IT WAS OFFERED TO PROVE THAT THE
ACTIVITIES OF THE BOARD SURVEY COMPANY, CONSIDERED IN OUR FORMER
OPINION, 333 U.S. 364, 400, WERE TO SECURE COMPLIANCE WITH THE
LICENSES; THAT THERE WAS NO AGREEMENT TO ELIMINATE JOBBERS BUT ONLY A
PURPOSE TO MAINTAIN PATENT PRICES BY DISCONTINUING THE JOBBER'S
DISCOUNT.  SUCH PROOF, IN VIEW OF OUR HOLDING AS TO THE SHERMAN ACT,
WOULD NOT MAKE LEGAL CONCERTED ACTION UNDER PATENTS TO STABILIZE
PRICES.  WE PASS OVER OTHER OFFERS OF PROOF AS CLEARLY IMMATERIAL ON
THE ISSUE OF LIABILITY FOR SHERMAN ACT VIOLATION.  GOOD INTENTIONS,
PROCEEDING UNDER PLANS DESIGNED SOLELY FOR THE PURPOSE OF EXPLOITING
PATENTS, ARE NO DEFENSE AGAINST A CHARGE OF VIOLATION BY ADMITTED
CONCERTED ACTION TO FIX PRICES FOR A PRODUCER'S PRODUCTS, WHETHER OR
NOT THOSE PRODUCTS ARE VALIDLY PATENTED DEVICES.  WE DO NOT THINK THAT,
ACCEPTING THE OFFERS OF FACT AS TRUE, THERE IS ENOUGH IN THE PROFFERED
EVIDENCE TO CHANGE THE ACTIONS OF THE DEFENDANTS FROM THE ILLEGAL TO
THE PERMISSIBLE.  A FINDING THAT THE MANUFACTURERS DID NOT VIOLATE THE
SHERMAN ACT UNDER THE EVIDENCE INTRODUCED BY THE GOVERNMENT AND THAT
PROFFERED BY THE DEFENDANTS BELOW WOULD BE CLEARLY ERRONEOUS IN VIEW OF
THE CONCERT OF ACTION TO FIX INDUSTRY PRICES BY THE TERMS OF THE
LICENSES.  FN7 

WE AGREE WITH A STATEMENT MADE BY COUNSEL FOR THE GOVERNMENT IN
ARGUMENT BELOW THAT AS A "MATTER OF FORMULATING THE DECREE" MANY FACTS
OFFERED TO BE PROVEN WOULD HAVE EFFECT UPON THE CONCLUSION OF A COURT
AS TO THE DECREE'S TERMS.  HOWEVER, WE READ THE PRELIMINARY STATEMENT
OF THE DISTRICT COURT TO THE DECREE AND THE SUMMARY DECREE ITSELF AS AN
ADJUDICATION OF VIOLATION OF THE SHERMAN ACT BY THE ACTION IN CONCERT
OF THE DEFENDANTS THROUGH THE FIXED-PRICE LICENSES, ACCEPTING AS TRUE
THE UNDERLYING FACTS IN DEFENDANTS' PROOF BY PROFFER.  THE TRIAL JUDGES
UNDERSTOOD THE SUMMARY JUDGMENT TO BE, AS JUDGE STEPHENS SAID, "LIMITED
TO THAT ONE UNDISPUTED QUESTION."  JUDGE GARRETT AND JUDGE JACKSON
AGREED.  FN8  THAT CONCLUSION ENTITLED THE GOVERNMENT ONLY TO RELIEF
BASED ON THAT FINDING AND THE PROFFERED FACTS.  ON THAT BASIS WE
DISMISSED UNITED STATES GYPSUM'S APPEAL FROM THE DECREE, AND ON THAT
BASIS WE EXAMINE THE GOVERNMENT'S OBJECTION TO THE DECREE. 
                    II. 

THE GOVERNMENT'S PROPOSED AMENDMENTS TO THE DECREE.  - A TRIAL COURT
UPON A FINDING OF A CONSPIRACY IN RESTRAINT OF TRADE AND A MONOPOLY HAS
THE DUTY TO COMPEL ACTION BY THE CONSPIRATORS THAT WILL, SO FAR AS
PRACTICABLE, CURE THE ILL EFFECTS OF THE ILLEGAL CONDUCT, AND ASSURE
THE PUBLIC FREEDOM FROM ITS CONTINUANCE.  SUCH ACTION IS NOT LIMITED TO
PROHIBITION OF THE PROVEN MEANS BY WHICH THE EVIL WAS ACCOMPLISHED, BUT
MAY RANGE BROADLY THROUGH PRACTICES CONNECTED WITH ACTS ACTUALLY FOUND
TO BE ILLEGAL.  FN9  ACTS ENTIRELY PROPER WHEN VIEWED ALONE MAY BE
PROHIBITED N10.  THE CONSPIRATORS SHOULD, SO FAR AS PRACTICABLE, BE
DENIED FUTURE BENEFITS FROM THEIR FORBIDDEN CONDUCT. 

THE DETERMINATION OF THE SCOPE OF THE DECREE TO ACCOMPLISH ITS
PURPOSE IS PECULIARLY THE RESPONSIBILITY OF THE TRIAL COURT.  ITS
OPPORTUNITY TO KNOW THE RECORD AND TO APPRAISE THE NEED FOR
PROHIBITIONS OR AFFIRMATIVE ACTIONS NORMALLY EXCEEDS THAT OF ANY
REVIEWING COURT.  THIS HAS BEEN REPEATEDLY RECOGNIZED BY US.  FN11
NOTWITHSTANDING OUR ADHERENCE TO TRIAL COURT RESPONSIBILITY IN THE
MOLDING OF A DECREE AS THE WISEST PRACTICE AND THE MOST PRODUCTIVE OF
GOOD RESULTS, WE HAVE NEVER TREATED THAT POWER AS ONE OF DISCRETION,
SUBJECT ONLY TO REVERSAL FOR GROSS ABUSE.  RATHER WE HAVE FELT AN
OBLIGATION TO INTERVENE IN THIS MOST SIGNIFICANT PHASE OF THE CASE WHEN
WE CONCLUDED THERE WERE INAPPROPRIATE PROVISIONS IN THE DECREE.  FN12
IN RESOLVING DOUBTS AS TO THE DESIRABILITY OF INCLUDING PROVISIONS
DESIGNED TO RESTORE FUTURE FREEDOM OF TRADE, COURTS SHOULD GIVE WEIGHT
TO THE FACT OF CONVICTION AS WELL AS THE CIRCUMSTANCES UNDER WHICH THE
ILLEGAL ACTS OCCUR.  FN13  ACTS IN DISREGARD OF LAW CALL FOR REPRESSION
BY STERNER MEASURES THAN WHERE THE STEPS COULD REASONABLY HAVE BEEN
THOUGHT PERMISSIBLE.  WE TURN THEN TO THE GOVERNMENT'S PROPOSALS FOR
MODIFICATION OF THE DECREE ON THE ASSUMPTION THAT ONLY A VIOLATION
THROUGH CONCERTED INDUSTRY LICENSE AGREEMENTS HAS BEEN PROVEN, BUT
RECOGNIZING, AS IS CONCEDED BY DEFENDANTS, THAT RELIEF, TO BE
EFFECTIVE, MUST GO BEYOND THE NARROW LIMITS OF THE PROVEN VIOLATION. 

(A)  THERE IS ONE CHANGE ACCEPTABLE TO THE GOVERNMENT AND UNITED
STATES GYPSUM AND WHICH WE THINK DESIRABLE.  ARTICLE II, SEC. 3, OF THE
DECREE DEFINES GYPSUM BOARD AS "MADE FROM GYPSUM AND EMBODYING ANY OF
THE INVENTIONS OR IMPROVEMENTS SET FORTH AND CLAIMED IN ANY OF THE
PATENTS."  THIS IS TOO RESTRICTIVE, AND THE WORDS "AND EMBODYING ANY OF
THE INVENTIONS OR IMPROVEMENTS SET FORTH AND CLAIMED IN ANY OF THE
PATENTS" SHOULD BE STRICKEN, IF THE DEFINITION IS USED. 

(B)  THE GOVERNMENT ACCEPTS THE FINDING OF ARTICLE III OF THE DECREE
BUT OBJECTS TO ARTICLE V (2) AND (3) BECAUSE, READ TOGETHER, THEY ALLOW
AGREEMENTS THROUGH PRICE FIXING BY LICENSE BETWEEN UNITED STATES GYPSUM
AND PACIFIC COAST LICENSEES.  THE COMPLAINT OF SHERMAN ACT VIOLATION
WAS RESTRICTED TO THE EASTERN TERRITORY OF THE UNITED STATES.  THE
EVIDENCE APPLIED ONLY TO THAT AREA.  HOWEVER, THE CLOSE SIMILARITY
BETWEEN INTERSTATE COMMERCE VIOLATIONS OF THE SHERMAN ACT IN EASTERN
TERRITORY AND WESTERN TERRITORY SEEMS SUFFICIENT TO JUSTIFY THE
ENLARGEMENT OF THE GEOGRAPHICAL SCOPE OF THE DECREE TO INCLUDE ALL
INTERSTATE COMMERCE.  ARTICLE V OF THE GOVERNMENT'S PROPOSED DECREE
INDICATES ONE WAY IN WHICH THIS EXTENSION COULD BE ACCOMPLISHED. 

(C)  THE GOVERNMENT ASKS AN EXTENSION OF THE DECREE TO INCLUDE ALL
GYPSUM PRODUCTS INSTEAD OF PATENTED GYPSUM BOARD ALONE.  COMPARE
APPENDIX, ARTICLE V. THE LICENSE AGREEMENTS, AS INDICATED ABOVE,
REQUIRED ROYALTIES ON UNPATENTED OPEN EDGE GYPSUM BOARD.  BOARD SURVEY,
THE ORGANIZATION CREATED TO ENFORCE THE LICENSE AGREEMENTS, FOUND
POSSIBILITIES OF PRICE EVASION TO EXIST BY A LICENSEE'S CUTTING
PREVAILING PRICES ON OTHER COMMODITIES, SOLD IN CONJUNCTION WITH
PATENTED GYPSUM BOARD.  BULLETINS, ISSUED TO STANDARDIZE SALE
PRACTICES, CRITICIZED REBATES AS VIOLATIVE OF THE LICENSE AGREEMENTS. 
333 U.S. 364, 386.  DEFENDANTS' OFFER OF PROOF DID NOT DENY SUCH EFFORT
TO SYSTEMATIZE SALES.  THEIR EXPLANATION WAS THAT THE EFFORTS WERE TO
ENFORCE LEGITIMATE LICENSE AGREEMENTS AND WERE NOT CALCULATED STEPS IN
CONSPIRACY OR MONOPOLY.  WE THINK THE GOVERNMENT'S REQUEST THAT THE
DECREE'S INJUNCTIONS REACH GYPSUM PRODUCTS, AS DEFINED IN ITS PROPOSED
DECREE, IS REASONABLE AND SHOULD BE ALLOWED.  SEE U.S. PROPOSED DECREE,
ARTICLE II, SEC. 4, AND ARTICLE V. 

(D)  THE GOVERNMENT ASKS THAT THE DECREE FORBID STANDARDIZATION OF
TRADE PRACTICES THROUGH CONCERTED AGREEMENT.  OUR FORMER GYPSUM
OPINION, PP. 382-383, GIVES A SUMMARY OF THE METHODS ADOPTED.  ANOTHER
METHOD OF REGULATING SALES WAS BY SPECIAL PROVISION FOR CERTAIN CLASSES
OF CUSTOMERS, JOBBERS AND MANUFACTURING DISTRIBUTORS.  SEE 333 U.S. AT
397 AND 399, N. 18.  WE THINK THIS WOULD JUSTIFY THE GOVERNMENT'S
REQUESTS.  ARTICLE V, SECS. 3, 4 AND 6. 

(E)  THE GOVERNMENT ASKS THE INSERTION OF ARTICLE V, SEC. 5, DIRECTED
AT AN AGREEMENT FOR CONCERTED ACTION IN SELLING OR QUOTING PRODUCTS AT
PRICES CALCULATED ACCORDING TO A DELIVERED PRICE SYSTEM.  IT POINTS OUT
THAT SUCH A SYSTEM WAS SAID BY THIS COURT, 333 U.S. AT 382, TO HAVE
BEEN EMPLOYED, AND NO PROFFER OF CONTRARY PROOF HAS BEEN MADE. 

DEFENDANTS ARGUE AS FOLLOWS:  THE PRICE FOR THE PATENTED PRODUCT WAS
"THE LOWEST COMBINATION OF MILL PRICE AND RAIL FREIGHT FROM MILL TO
DESTINATION."  DEFENDANTS URGE THAT 

"THE ONLY WITNESS AT THE TRIAL WHO WAS INTERROGATED ABOUT IT SAID
THAT THE PRICING SYSTEM IN THE GYPSUM BOARD INDUSTRY WAS THE VERY
OPPOSITE OF THE BASING POINT SYSTEM; THAT THE MILL BASE PRICES WERE
EXTENDED TO ALL MILLS; AND THAT IT WAS REALLY ONLY A FREIGHT
EQUALIZATION METHOD OF PRICING WHICH RESULTED IN THE CUSTOMER ALWAYS
GETTING THE LOWEST POSSIBLE PRICE NO MATTER FROM WHOM HE BOUGHT." 

AND THEY SAY 

"IT WAS NOT ESTABLISHED BY THE LICENSE BULLETINS, BUT LICENSOR, IN
STATING THE MINIMUM PRICE, MERELY USED THE METHOD OF PRICING AS IT THEN
EXISTED." 

FURTHER, DEFENDANTS POINT OUT 

"IF APPELLEE COMPANIES ARE TO BE QUESTIONED AS TO THEIR METHOD OF
PRICING, THEY SHOULD BE AFFORDED A FULL HEARING FOR THE PRESENTATION OF
ALL PERTINENT MATTERS BEARING UPON THEIR PRICING PRACTICES AND SHOULD
NOT BE CALLED UPON TO DEFEND THEMSELVES IN A SUMMARY HEARING FOR AN
ALLEGED CONTEMPT OF COURT." 

WE THINK THE DEFENDANTS ARE UNDULY APPREHENSIVE.  THE GOVERNMENT'S
PROPOSED PROHIBITION OF DELIVERED PRICE ARRANGEMENTS IS DIRECTED AT
CONCERTED ACTION, BY AGREEMENT OR UNDERSTANDING AMONG THE
MANUFACTURERS, NOT AT ANY SYSTEM OF PRICING THE INDIVIDUAL MANUFACTURER
MAY ADOPT OR ANY PRICE THAT HE MAY MAKE.  FN14  SINCE THE CONSPIRACY
FOR RESTRAINT OF TRADE WAS FURTHERED BY THIS ARRANGEMENT, USE OF SUCH A
METHOD SHOULD BE BANNED FOR THE FUTURE.  TO AVOID ANY POSSIBILITY THAT
AN INDIVIDUAL'S MEETING OF COMPETITORS' PRICES WOULD BE CONSTRUED AS A
CONTEMPT OF THE DECREE, WE THINK PROPOSED ARTICLE V, SEC. 5 SHOULD READ
AS FOLLOWS: 

"5.  AGREEING UPON ANY PLAN OF SELLING OR QUOTING GYPSUM PRODUCTS AT
PRICES CALCULATED OR DETERMINED PURSUANT TO A DELIVERED PRICE PLAN
WHICH RESULTS IN IDENTICAL PRICES OR PRICE QUOTATIONS AT GIVEN POINTS
OF SALES OR QUOTATION BY DEFENDANTS USING SUCH PLAN;" 

(F)  THE GOVERNMENT OBJECTS TO ARTICLE VI OF THE DECREE WHICH
PROVIDES, SEC. 1, FOR COMPULSORY LICENSING FOR 90 DAYS TO ANY APPLICANT
OF ALL THEN-OWNED PATENTS RELATING TO GYPSUM BOARD AT NOT TO EXCEED THE
STANDARDIZED ROYALTIES AS THERETOFORE CHARGED TO DEFENDANT LICENSEES. 
THE OBJECTION IS THAT THE LIMITED TIME MAKES THE REQUIREMENT FUTILE
EXCEPT FOR PRESENT LICENSEES.  THERE IS A COROLLARY OBJECTION TO
ARTICLE VIII BECAUSE OF PROVISIONS IN THE APPROVED LICENSE AGREEMENTS. 
PARTICULAR REFERENCE IS MADE BY THE GOVERNMENT TO AN APPROVED PROVISION
REQUIRING THE LICENSEE TO REPORT ITS MONTHLY SALES AND PRICE WITH RIGHT
TO GYPSUM TO HAVE AN INSPECTION BY A CERTIFIED PUBLIC ACCOUNTANT
APPROVED BY THE PARTIES.  THE GOVERNMENT FEARS THE COMPETITIVE
ADVANTAGE TO GYPSUM OF KNOWING ITS COMPETITORS' SALES AND PRICES, AND
THE DEPRESSIVE EFFECT OF SUCH INFORMATION ON A STRENUOUS SALES PROGRAM
BY THE LICENSEE. 

THE GOVERNMENT SUGGESTS EXPANDING THE REQUIREMENT OF LICENSING TO
INCLUDE ALL UNITED STATES GYPSUM PATENTS, OLD AND NEW, WITH A PROVISION
BY WHICH NEW PATENTS MAY BE EXCLUDED AFTER FIVE YEARS.  SEE PROPOSED
DECREE, ARTICLE VI, SEC. 6.  OTHER PROPOSED CHANGES REQUIRE ALL
LICENSEES TO RECEIVE EQUAL TREATMENT AS TO ROYALTIES, PUT THE BURDEN OF
ESTABLISHING ROYALTY VALUES ON UNITED STATES GYPSUM AND ALLOW A
LICENSEE TO ATTACK THE VALIDITY OF PATENTS. 

IN UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319, 335-351, WE
RECENTLY DEALT WITH PROBLEMS OF LICENSES AND ROYALTIES AFTER A FINDING
OF SHERMAN ACT VIOLATION.  THE ARRANGEMENTS ON ACCOUNT OF WHICH THE
COMPANIES MANUFACTURING TITANIUM PIGMENTS IN THAT COMBINATION WERE
ADJUDGED VIOLATORS WERE AS OFFENSIVE TO THE PROHIBITIONS OF THE SHERMAN
ACT AS THOSE PROVEN IN THE PRESENT CASE.  DEPENDING LARGELY UPON THE
DISCRETION OF THE TRIAL COURT, WE REFUSED TO MODIFY THE DECREE.  IT
ORDERED THE ACCUSED PATENT OWNERS TO LICENSE ALL PATENTS CONTROLLED BY
THEM CONCERNING TITANIUM AND TITANIUM MANUFACTURES DURING THE
SUCCEEDING FIVE YEARS AT A REASONABLE ROYALTY TO BE FIXED BY THE
COURT.  PARAGRAPHS 4 AND 7 OF THAT DECREE, 332 U.S. AT 335-337. 

THE TERMS OF THE NATIONAL LEAD DECREE ARE SOMEWHAT LIKE THOSE THE
GOVERNMENT ASKS HERE.  IN THE PRESENT CASE THERE SHOULD BE NO
REQUIREMENT OF RECIPROCAL GRANTS.  332 U.S. 336. 

WE THINK THAT THE UNITED STATES GYPSUM COMPANY SHOULD BE REQUIRED TO
LICENSE ALL ITS PATENTS IN THE GYPSUM PRODUCTS FIELD TO ALL APPLICANTS
ON EQUAL TERMS.  WHETHER THE TERM FOR COMPULSORY LICENSING OF NEW
PATENTS IS TO BE FIVE YEARS, OR FOR A LONGER PERIOD WITH THE PRIVILEGE
TO THE APPELLEES TO MOVE FOR A LIMITATION FOR SUCH NEW PATENTS, AS
PROVIDED IN THE SUGGESTED DECREE, ARTICLE VI, SEC. 6, WE LEAVE TO THE
DISTRICT COURT.  THAT COURT SHOULD PROVIDE FOR ITS DETERMINATION OF A
REASONABLE ROYALTY EITHER IN EACH INSTANCE OF FAILURE TO AGREE OR BY AN
APPROVED FORM OR BY ANY OTHER PLAN IN ITS DISCRETION. 

WE DISAPPROVE THE GOVERNMENT'S SUGGESTION THAT THE BURDEN OF
ESTABLISHING THE REASONABLENESS OF THE REQUESTED ROYALTY SHOULD BE
PLACED UPON GYPSUM BY THE DECREE.  WE DO NOT DECIDE WHERE THE BURDEN OF
PROOF OF VALUE LIES OR WHO HAS THE DUTY TO GO FORWARD WITH THE EVIDENCE
IN ANY PARTICULAR INSTANCE. 

WE DISAPPROVE THE GOVERNMENT'S SUGGESTION, CONTAINED IN ARTICLE VI,
SEC. 5, THAT THE DECREE SHALL NOT BE TAKEN AS PREVENTING AN "APPLICANT"
(WE CONSTRUE THIS AS MEANING LICENSEE) ATTACKING THE PATENT OR AS
IMPORTING VALUE TO IT.  WE SEE NO OCCASION FOR THIS UNUSUAL PROVISION
AND THINK IT SHOULD BE ENTIRELY OMITTED.  FN15 

WE DIRECT THAT ARTICLE VI OF THE DECREE BE SO MODIFIED AS GENERALLY
TO CONFORM TO THE ABOVE SUGGESTIONS. 

WE APPROVE THE GOVERNMENT'S SUGGESTED PROVISIONS FOR INSPECTION OF
LICENSEES' BOOKS AND REPORTS TO LICENSOR, SUBSTANTIALLY AS SET OUT IN
PROPOSED ARTICLE VI, SEC. 2(C). 

(G)  THE GOVERNMENT SEEKS ACCESS TO THE RECORDS AND PERSONNEL OF THE
DEFENDANTS FOR THE PURPOSE OF ADVISING ITSELF AS TO THE DEFENDANTS'
COMPLIANCE WITH THE JUDGMENT.  SEE PROPOSED ARTICLE VIII.  CONSTRUING
THE ARTICLE AS WE DID IN UNITED STATES V. BAUSCH & LOMB CO., 321 U.S.
707, 725, N. 6, WE THINK THE REQUEST REASONABLE.  THIS ARTICLE, OR ONE
OF SIMILAR IMPORT, SHOULD BE INCLUDED IN THE DECREE. 

(H) WE HAVE NOTED THE GOVERNMENT'S CONTENTIONS IN REGARD TO THE
INDIVIDUAL DEFENDANTS, AVERY, KNODE, BAKER, EBSARY AND TOMKINS, AND ITS
SUGGESTION THAT ARTICLE III BE MODIFIED SO AS TO READ "DEFENDANTS" IN
THE FIRST LINE, INSTEAD OF "DEFENDANT COMPANIES."  IT IS TRUE THAT
THESE INDIVIDUALS SIGNED THE QUESTIONED AGREEMENTS, BUT THEY WERE
ACTING AS OFFICIALS AND WE THINK THE PROVISIONS OF ARTICLE V BAR THEM
FROM ENGAGING IN SIMILAR CONSPIRACIES. 

(I)  THE GOVERNMENT ASKS THAT ALL COSTS BE TAXED AGAINST THE
DEFENDANT COMPANIES.  ARTICLE IX, PROPOSED DECREE; ARTICLE X, DECREE
ENTERED.  WE SEE NO REASON TO INTERFERE WITH THE DISCRETION OF THE
TRIAL COURT IN THIS MATTER. 

"WITH THESE GENERAL SUGGESTIONS, THE DETAILS AND FORM OF THE
INJUNCTION CAN BE MORE SATISFACTORILY DETERMINED BY THE DISTRICT
COURT."  FN16  ITS PROCEDURE FOR THE SETTLEMENT OF A DECREE IS MORE
FLEXIBLE THAN OURS.  THE DECREE IS REVERSED AND THE CAUSE REMANDED TO
THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

FN1  "45.  SAID COMBINATION HAS BEEN FORMED, HAS BEEN CARRIED OUT,
AND IS BEING CARRIED OUT BY EACH OF THE DEFENDANT COMPANIES (ACTING, IN
PART, THROUGH THOSE OF THEIR OFFICERS AND DIRECTORS MADE DEFENDANTS
HEREIN) AND BY OTHER COMPANIES HEREINAFTER REFERRED TO ENGAGED IN THE
MANUFACTURE OF SAID GYPSUM PRODUCTS.  SAID COMPANIES HAVE ENTERED INTO,
HAVE CARRIED OUT, AND ARE CARRYING OUT SAID COMBINATION FOR THE
PURPOSE, AND WITH THE EFFECT, OF RESTRAINING, DOMINATING, AND
CONTROLLING THE MANUFACTURE AND DISTRIBUTION OF SAID GYPSUM PRODUCTS IN
THE EASTERN AREA BY: 

"(A)  CONCERTEDLY RAISING AND FIXING AT ARBITRARY AND NONCOMPETITIVE
LEVELS THE PRICES OF GYPSUM BOARD MANUFACTURED AND SOLD BY SAID
COMPANIES IN THE EASTERN AREA;    "(B)  CONCERTEDLY STANDARDIZING
GYPSUM BOARD AND ITS METHOD OF PRODUCTION BY LIMITING THE MANUFACTURE
OF BOARD TO UNIFORM METHODS, AND BY PRODUCING ONLY UNIFORM KINDS OF
BOARD, FOR THE PURPOSE, AND WITH THE EFFECT, OF ELIMINATING COMPETITION
ARISING FROM VARIATIONS IN METHODS OF PRODUCTION AND IN KINDS OF BOARD
MANUFACTURED AND DISTRIBUTED IN THE EASTERN AREA; 

"(C)  CONCERTEDLY RAISING, MAINTAINING, AND STABILIZING THE GENERAL
LEVEL OF PRICES FOR PLASTER AND MISCELLANEOUS GYPSUM PRODUCTS
MANUFACTURED AND SOLD BY SAID COMPANIES IN THE EASTERN AREA: 

"(D)  CONCERTEDLY REFRAINING FROM DISTRIBUTING GYPSYM BOARD, PLASTER,
AND MISCELLANEOUS GYPSUM PRODUCTS MANUFACTURED BY SAID COMPANIES
THROUGH JOBBERS IN THE EASTERN AREA, AND CONCERTEDLY REFUSING TO SELL
SAID PRODUCTS TO JOBBERS AT PRICES BELOW SAID COMPANIES' PRICES TO
DEALERS, FOR THE PURPOSE, AND WITH THE EFFECT, OF ELIMINATING
SUBSTANTIALLY ALL JOBBERS FROM THE DISTRIBUTION OF SAID GYPSUM PRODUCTS
IN THE EASTERN AREA; 

"(E)  CONCERTEDLY INDUCING AND COERCING MANUFACTURING DISTRIBUTORS TO
RESELL, AT THE PRICES RAISED AND FIXED BY SAID COMPANIES AS AFORESAID,
GYPSUM BOARD PURCHASED FROM SAID COMPANIES." 

FN2  THE PERTINENT PORTIONS OF THE DECREE AS ENTERED BELOW ARE SET
OUT IN AN APPENDIX TO THIS OPINION (POST, P. 96) IN PARALLEL COLUMNS
WITH PORTIONS OF THE DECREE PROPOSED BY THE GOVERNMENT IN ITS BRIEF
HERE.  THIS PROPOSAL IS MORE LIMITED THAN THE GOVERNMENT'S PROPOSED
DECREE OFFERED IN THE DISTRICT COURT. 

FN3  EXHIBIT A AND PARAGRAPH 4 REFERRED TO ON P. 410 CONTAIN THE
LICENSES INVOLVED IN THIS LITIGATION. 

FN4  THE DISSENTERS IN LINE JOINED IN THE UNITED STATES GYPSUM
OPINION, SINCE THE CONCERTED ACTION IN THE UNITED STATES GYPSUM CASE
WAS THOUGHT TO VIOLATE THE SHERMAN ACT, DESPITE THEIR VIEW THAT THE
MERE MULTIPLICATION OF LICENSES, AS IN LINE, "PRODUCES A REPETITION OF
THE SAME ISSUE (AS IN GENERAL ELECTRIC) RATHER THAN A DIFFERENT
ISSUE."  333 U.S. AT 354. 

FN5  GYPSUM'S PETITION FOR REHEARING SOUGHT A MODIFICATION OF THIS
POSITION.  IT ARGUED THAT "SEPARATE BUT SIMILAR LAWFUL AGREEMENTS MUST
STILL BE LAWFUL IF THE RESULT IS LAWFUL AND NO PRELIMINARY AGREEMENTS
OR UNDERSTANDINGS TO MAKE THEM COULD BE UNLAWFUL."  WE DENIED
REHEARING.  333 U.S. AT 869. 

FN6  E.G., "1.  THERE WAS NO AGREEMENT OR UNDERSTANDING BETWEEN THE
UNITED STATES GYPSUM COMPANY (USG), PATENTEE, AND THE OTHER DEFENDANTS
OR ANY OF THEM THAT THEY WOULD ASSOCIATE THEMSELVES IN A PLAN TO
BLANKET THE INDUSTRY UNDER PATENT LICENSES AND STABILIZE PRICES OR
ISSUE OR CAUSE TO BE ISSUED SUBSTANTIALLY IDENTICAL LICENSES TO ALL OF
THE DEFENDANTS OR ANY NUMBER OF THEM." 

FN7  ONE OF THE DEFENDANTS, CELOTEX CORPORATION, MADE A SEPARATE
PROFFER OF PROOF, INDICATING THAT IT WAS THE PURCHASER OF A LICENSE
FROM A LICENSEE, AMERICAN GYPSUM COMPANY.  IN THE TRANSFER, CELOTEX
ASSUMED THE LICENSEE'S OBLIGATIONS TO MAINTAIN THE LICENSOR'S PRICE. 
AS CELOTEX TOOK NO OTHER PART IN THE CONSPIRACY, IT CONTENDS THAT THE
DECREE SHOULD NOT IMPOSE UPON IT ANY FURTHER RESTRICTION THAN A
PROHIBITION AGAINST PRICE MAINTENANCE.  SINCE CELOTEX ENTERED INTO THE
CONSPIRACY BY ITS PURCHASE OF THE LICENSE WITH AN AGREEMENT TO OPERATE
IN ACCORDANCE WITH ITS TERMS, WE THINK IT SHOULD BE TREATED IN THE
DECREE LIKE THE OTHER LICENSEES. 

FN8  AT THE HEARING ON PROPER TERMS FOR THE DECREE JUDGE GARRETT
SAID, "JUDGE JACKSON AND I THOUGHT THAT, WITHIN THE LIMITS OF THE
DECISION OF THE SUPREME COURT, THAT DECREE SHOULD OF COURSE BE GRANTED
AND THAT NOTHING THAT WAS GIVEN US IN THE PROFFER OF PROOF WOULD CHANGE
THE ATTITUDE OF THE SUPREME COURT WITHIN THE SCOPE OF THOSE MATTERS
UPON WHICH IT HAD SPECIFICALLY PASSED. 

"NOW, THAT WAS THE SUMMARY JUDGMENT." 

FN9  ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 461;
HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 409; INTERNATIONAL
SALT CO. V. UNITED STATES, 332 U.S. 392, 401. 

FN10  UNITED STATES V. BAUSCH & LOMB CO., 321 U.S. 707, 724. 

FN11  ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 22; CF.
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 399-401.  AND
SEE UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 185. 

FN12  STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 78-82; UNITED
STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 184-188; UNITED STATES V.
CRESCENT AMUSEMENT CO., 323 U.S. 173, 185-187; NOTE ESPECIALLY HARTFORD
EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 409-435. 

FN13  LOCAL 167, I.B.T. V. UNITED STATES, 291 U.S. 293, 299; HARTFORD
EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 409. 

FN14  SEE OUR DISCUSSION IN FEDERAL TRADE COMM'N V. CEMENT INSTITUTE,
333 U.S. 683, 727-728. 

FN15  SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S. 173;
EDWARD KATZINGER CO. V. CHICAGO METALLIC MFG. CO., 329 U.S. 394;
MACGREGOR V. WESTINGHOUSE ELECTRIC & MFG. CO., 329 U.S. 402; AND CF.
SCOTT PAPER CO. V. MARCALUS MFG. CO., 326 U.S. 249. 

FN16  WARNER & CO. V. LILLY & CO., 265 U.S. 526, 533. 

MR. JUSTICE BLACK BELIEVES THAT ALL THE AMENDMENTS PROPOSED BY THE
GOVERNMENT TO ARTICLE VI OF THE DECREE ARE NECESSARY TO PROTECT THE
PUBLIC FROM A CONTINUATION OF MONOPOLISTIC PRACTICES BY UNITED STATES
GYPSUM. 

MR. JUSTICE JACKSON AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

                              APPENDIX. 

          DISTRICT COURT DECREE OF NOVEMBER 7, 1949. 

                     PRELIMINARY STATEMENT 

THIS CAUSE CAME ON FOR TRIAL BEFORE THIS COURT ON NOVEMBER 15, 1943. 
AT THE CONCLUSION OF PLAINTIFF'S PRESENTATION OF THE CASE, DEFENDANTS
MOVED, PURSUANT TO RULE 41(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE,
FOR JUDGMENT DISMISSING THE COMPLAINT ON ITS MERITS.  THE MOTION OF
DEFENDANTS WAS GRANTED AUGUST 6, 1946.  THE JUDGMENT SO RENDERED BY
THIS COURT WAS REVERSED BY THE SUPREME COURT OF THE UNITED STATES, AND
THE CASE WAS REMANDED TO THIS COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THE OPINION OF THE SUPREME COURT (333 U.S. 364). 

FOLLOWING THE REMAND, THE PLAINTIFF, PURSUANT TO RULE 56 OF THE
FEDERAL RULES OF CIVIL PROCEDURE, MOVED FOR SUMMARY JUDGMENT IN ITS
FAVOR UPON THE PLEADINGS AND ALL OF THE PROCEEDINGS WHICH THERETOFORE
HAD BEEN HAD IN THE CASE, OR, IN THE ALTERNATIVE, FOR SUCH FURTHER
PROCEEDINGS AS THIS COURT MIGHT DIRECT, AND DEFENDANTS, BY DIRECTION OF
THE COURT, FILED PROFFERS OF PROOF. 

ARGUMENT BY COUNSEL FOR THE RESPECTIVE PARTIES UPON THE MOTION OF
PLAINTIFF WAS HEARD BY THE COURT, AND AFTER DUE CONSIDERATION OF SUCH
ARGUMENT AND OF DEFENDANTS' PROFFERS OF PROOF, GARRETT, J. AND JACKSON,
J., CONSTITUTING A MAJORITY OF THE COURT, ANNOUNCED A RULING TO THE
EFFECT THAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WOULD BE GRANTED,
AND STEPHENS, J., WHO PRESIDED DURING THE TRIAL, ANNOUNCED HIS DISSENT
FROM SUCH RULING. 

THEREAFTER COUNSEL FOR PLAINTIFF AND COUNSEL FOR CERTAIN OF THE
DEFENDANTS SUBMITTED FORMS OF FINAL DECREES FOR THE CONSIDERATION OF
THE COURT AND ALSO SUGGESTED FINDINGS OF FACT, THE LATTER TO BE
CONSIDERED IN THE EVENT THE COURT SHOULD DEEM IT NECESSARY TO MAKE ANY
FINDINGS OF FACT ANDDITIONAL TO THOSE ORIGINALLY FOUND BY IT AND TO
THOSE STATED IN THE OPINION OF THE SUPREME COURT. 

IN DUE COURSE, THE COURT HEARD ARGUMENTS RESPECTING THE PROPOSED
DECREES AND THE SUGGESTED FINDINGS OF FACT, AND FULL CONSIDERATION HAS
BEEN GIVEN THERETO AND TO ALL PRIOR PROCEEDINGS - ALL BEING CONSIDERED
IN THE LIGHT OF THE DECISION OF THE SUPREME COURT WHICH, AS UNDERSTOOD
BY THE MAJORITY OF THIS COURT, HELD THAT THE DEFENDANTS ACTED IN
CONCERT TO RESTRAIN TRADE AND COMMERCE IN THE GYPSUM BOARD INDUSTRY AND
MONOPOLIZED SAID TRADE AND COMMERCE AMONG THE SEVERAL STATES IN THAT
STATES, WHICH SECTION EMBRACES ALL THE STATES OF THE UNITED STATES
WESTWARD FROM THE EASTERN COAST THEREOF TO THE ROCKY MOUNTAINS AND
INCLUDING NEW MEXICO, COLORADO, WYOMING, AND THE EASTERN HALF OF
MONTANA. 

   (THE ARTICLES OF THESE DECREES HAVE BEEN REARRANGED TO
FACILITATE

                             COMPARISON.) 

                  PROVISIONS OF

DISTRICT COURT DECREE. 

                              ARTICLE I 

THIS COURT HAS JURISDICTION OF THE SUBJECT MATTER HEREOF AND OF THE
PARTIES HERETO.  THE COMPLAINT STATES A CAUSE OF ACTION AGAINST
DEFENDANTS UNDER THE ACT OF CONGRESS OF JULY 2, 1890, ENTITLED "AN ACT
TO PROTECT TRADE AND COMMERCE AGAINST UNLAWFUL RESTRAINTS AND
MONOPOLIES", COMMONLY KNOWN AS THE SHERMAN ANTI-TRUST ACT, AND ACTS
AMENDATORY THEREOF AND SUPPLEMENTAL THERETO,

                              ARTICLE II 

AS USED IN THIS DECREE: 

1.  "DEFENDANT COMPANIES" SHALL MEAN ALL OF THE CORPORATE DEFENDANTS
AND SAMUEL M. GLOYD, DOING BUSINESS UNDER THE NAME OF TEXAS CEMENT
PLASTER COMPANY. 

2.  THE "PATENTS" SHALL MEAN UNITED STATES LETTERS PATENT AND
APPLICATIONS FOR UNITED STATES LETTERS PATENT OWNED BY DEFENDANT UNITED
STATES GYPSUM COMPANY WHICH ARE DESCRIBED IN THE PATENT LICENSES, AS
HEREINAFTER DEFINED, AND CONTINUATIONS IN WHOLE OR IN PART, RENEWALS,
REISSUES, DIVISIONS, AND EXTENSIONS THEREOF. 

3.  "GYPSUM BOARD" SHALL MEAN PLASTER BOARD OR LATH (INCLUDING
PERFORATED AND METALLIZED LATH) AND WALLBOARD (INCLUDING METALLIZED
WALLBOARD) MADE FROM GYPSUM AND EMBODYING ANY OF THE INVENTIONS OR
IMPROVEMENTS SET FORTH AND CLAIMED IN ANY OF THE PATENTS. 

4.  "PATENT LICENSES" SHALL MEAN THE PATENT LICENSE AGREEMENTS WHICH
WERE IN EFFECT BETWEEN DEFENDANT UNITED STATES GYPSUM COMPANY AND EACH
OF THE OTHER DEFENDANT COMPANIES AT THE TIME THE COMPLAINT HEREIN WAS
FILED AND DESCRIBED IN SAID COMPLAINT AS FOLLOWS:  (LISTED TO COVER
ALL.) 

          ARTICLE III 

THE DEFENDANT COMPANIES HAVE ACTED IN CONCERT IN RESTRAINT OF TRADE
AND COMMERCE AMONG THE SEVERAL STATES IN THE EASTERN TERRITORY OF THE
UNITED STATES TO FIX, MAINTAIN AND CONTROL THE PRICES OF GYPSUM BOARD
AND HAVE MONOPOLIZED TRADE AND COMMERCE IN THE GYPSUM BOARD INDUSTRY IN
VIOLATION OF SECTIONS 1 AND 2 OF THE SHERMAN ANTITRUST ACT. 

                        ARTICLE IV 

EACH OF THE LICENSE AGREEMENTS LISTED IN ARTICLE II HEREOF IS
ADJUDGED UNLAWFUL UNDER THE ANTI-TRUST LAWS OF THE UNITED STATES AND
ILLEGAL, NULL AND VOID. 

                              ARTICLE V 

EACH OF THE DEFENDANT COMPANIES AND EACH OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, SUBSIDIARIES,
AND ANY PERSON ACTING OR CLAIMING TO ACT UNDER, THROUGH OR FOR THEM OR
ANY OF THEM ARE HEREBY ENJOINED AND RESTRAINED FROM 

(1)  THE FURTHER PERFORMANCE OR ENFORCEMENT OF ANY OF THE PROVISIONS
OF THE PATENT LICENSES, INCLUDING ANY PRICE BULLETIN ISSUED
THEREUNDER; 

(2)  ENTERING INTO OR PERFORMING ANY AGREEMENT OR UNDERSTANDING AMONG
THE DEFENDANTS OR ANY OF THEM FOR THE PURPOSE OR WITH THE EFFECT OF
CONTINUING, REVIVING OR REINSTATING ANY MONOPOLISTIC PRACTICE. 

(3)  ENTERING INTO OR PERFORMING ANY AGREEMENT OR UNDERSTANDING AMONG
THE DEFENDANTS OR ANY OF THEM IN RESTRAINT OF TRADE AND COMMERCE IN
GYPSUM BOARD AMONG THE SEVERAL STATES IN THE EASTERN TERRITORY OF THE
UNITED STATES BY LICENSE AGREEMENTS TO FIX, MAINTAIN OR STABILIZE
PRICES OF GYPSUM BOARD OR THE TERMS AND CONDITIONS OF SALE THEREOF. 

                              ARTICLE VI 

1.  DEFENDANT UNITED STATES GYPSUM COMPANY IS HEREBY ORDERED AND
DIRECTED TO GRANT TO EACH APPLICANT THEREFOR WITHIN 90 DAYS AFTER THE
EFFECTIVE DATE HEREOF, BUT ONLY IN SO FAR AS IT HAS THE RIGHT TO DO SO,
A NON-EXCLUSIVE LICENSE TO MAKE, USE AND VEND UNDER ANY, SOME, OR ALL
PATENTS AND PATENT APPLICATIONS NOW OWNED OR CONTROLLED BY IT RELATING
TO GYPSUM BOARD, PROVIDED THAT SUCH LICENSE AGREEMENT FIXES A ROYALTY
NOT TO EXCEED THE ROYALTY OF THE SAME ARTICLE OR PROCESS FIXED IN THE
LICENSE AGREEMENTS SET OUT IN ARTICLE II HEREOF. 

2.  DEFENDANT UNITED STATES GYPSUM COMPANY IS HEREBY ENJOINED AND
RESTRAINED FROM MAKING ANY SALE OR OTHER DISPOSITION OF ANY OF SAID
PATENTS OR PATENT APPLICATIONS WHICH WOULD DEPRIVE IT OF THE POWER OR
AUTHORITY TO GRANT SUCH LICENSES, UNLESS IN ANY SALE, TRANSFER OR
ASSIGNMENT IT SHALL BE REQUIRED THAT THE PURCHASER, TRANSFEREE OR
ASSIGNEE SHALL OBSERVE THE PROVISIONS OF THIS SECTION. 

        ARTICLE VIII 

THE FORMS OF LICENSE AGREEMENT WHICH THE COURT HAS THIS DAY ORDERED
FILED HEREIN ARE HEREBY APPROVED; AND THE TENDER BY DEFENDANT UNITED
STATES GYPSUM COMPANY TO EACH APPLICANT FOR A LICENSE AGREEMENT
CONTAINING THE TERMS AND CONDITIONS SET FORTH IN THE APPLICABLE FILED
FORM OR FORMS SHALL CONSTITUTE COMPLIANCE BY DEFENDANT UNITED STATES
GYPSUM COMPANY WITH THE PROVISIONS OF ARTICLE VI.

        ARTICLE VII 

NOTHING CONTAINED IN THIS DECREE SHALL BE DEEMED TO HAVE ANY EFFECT
UPON THE OPERATIONS OR ACTIVITIES OF SAID DEFENDANTS WHICH ARE
AUTHORIZED OR PERMITTED BY THE ACT OF CONGRESS OF APRIL 10, 1918,
COMMONLY CALLED THE WEBB-POMERENE ACT, OR THE ACT OF CONGRESS OF AUGUST
17, 1937, COMMONLY CALLED THE MILLER-TYDINGS ACT, OR BY ANY PRESENT OR
FUTURE ACT OF CONGRESS OR AMENDMENT THERETO; PROVIDED, HOWEVER, NOTHING
CONTAINED IN THIS ARTICLE SHALL IN ANY MANNER AFFECT THE PROVISIONS OF
ARTICLE VI OF THIS DECREE. 

   ARTICLE X 

JUDGMENT IS ENTERED AGAINST THE DEFENDANT COMPANIES FOR 50% OF THE
COSTS TO BE TAXED IN THIS PROCEEDING, AND THE COSTS SO TO BE TAXED ARE
HEREBY PRORATED AGAINST THE SEVERAL DEFENDANT COMPANIES AS FOLLOWS:
(HERE FOLLOWS ALLOCATION.) 

                              ARTICLE IX 

JURISDICTION OF THIS CAUSE, AND OF THE PARTIES HERETO, IS RETAINED BY
THE COURT FOR THE PURPOSE OF ENABLING ANY OF THE PARTIES TO THIS
DECREE, OR ANY OTHER PERSON, FIRM OR CORPORATION THAT MAY HEREAFTER
BECOME BOUND THEREBY IN WHOLE OR IN PART, TO APPLY TO THIS COURT AT ANY
TIME FOR SUCH ORDERS, MODIFICATIONS, VACATIONS OR DIRECTIONS AS MAY BE
NECESSARY OR APPROPRIATE (1) FOR THE CONSTRUCTION OR CARRYING OUT OF
THIS DECREE, AND (2) FOR THE ENFORCEMENT OF COMPLIANCE THEREWITH. 
                       PROVISIONS OF

          UNITED STATES' PROPOSED

       DECREE. 

                              ARTICLE I 

THIS COURT HAS JURISDICTION OF THE SUBJECT MATTER HEREOF AND OF THE
PARTIES HERETO.  THE COMPLAINT STATES A CAUSE OF ACTION AGAINST
DEFENDANTS UNDER THE ACT OF CONGRESS OF JULY 2, 1890, ENTITLED "AN ACT
TO PROTECT TRADE AND COMMERCE AGAINST UNLAWFUL RESTRAINTS AND
MONOPOLIES," COMMONLY KNOWN AS THE SHERMAN ANTITRUST ACT, AND ACTS
AMENDATORY THEREOF AND SUPPLEMENTAL THERETO. 

                              ARTICLE II 

FOR THE PURPOSES OF THIS JUDGMENT: 

1.  "DEFENDANT COMPANIES" SHALL MEAN ALL OF THE CORPORATE DEFENDANTS
AND SAMUEL M. GLOYD, DOING BUSINESS UNDER THE NAME OF TEXAS CEMENT
PLASTER COMPANY. 

2.  "PATENTS" SHALL MEAN UNITED STATES LETTERS PATENT AND
APPLICATIONS FOR UNITED STATES LETTERS PATENT RELATING TO GYPSUM BOARD,
ITS PROCESSES, METHODS OF MANUFACTURE, OR USE, AND CONTINUATIONS IN
WHOLE OR IN PART, RENEWALS, REISSUES, DIVISIONS, AND EXTENSIONS OF ANY
SUCH PATENT OR PATENT APPLICATION. 

3.  "GYPSUM BOARD" SHALL MEAN PLASTERBOARD, LATH, WALLBOARD, SPECIAL
SURFACED BOARD, SHEATHING, LINER BOARD (INCLUDING ANY SUCH PRODUCT
WHICH IS PERFORATED OR METALLIZED) MADE FROM GYPSUM. 

4. "GYPSUM PRODUCTS" SHALL MEAN GYPSUM BOARD AS DEFINED IN THE
PRECEDING PARAGRAPH, AND PLASTER, BLOCK, TILE AND KEENE'S CEMENT MADE
FROM GYPSUM. 

5.  AS USED IN ARTICLE IV, "LICENSE AGREEMENTS" SHALL MEAN THE PATENT
LICENSE AGREEMENTS WHICH WERE IN EFFECT BETWEEN DEFENDANT UNITED STATES
GYPSUM COMPANY AND EACH OF THE OTHER DEFENDANT COMPANIES AT THE TIME
THE COMPLAINT HEREIN WAS FILED AND DESCRIBED IN SAID COMPLAINT AS
FOLLOWS: (LISTED TO COVER ALL.) 

                             ARTICLE III 

THE DEFENDANTS HAVE ACTED IN CONCERT IN RESTRAINT OF TRADE AND
COMMERCE AMONG THE SEVERAL STATES IN THE EASTERN TERRITORY OF THE
UNITED STATES TO FIX, MAINTAIN AND CONTROL THE PRICES OF GYPSUM BOARD
AND HAVE MONOPOLIZED TRADE AND COMMERCE IN THE GYPSUM BOARD INDUSTRY IN
VIOLATION OF SECTIONS 1 AND 2 OF THE SHERMAN ANTITRUST ACT. 

                              ARTICLE IV 

EACH OF THE LICENSE AGREEMENTS LISTED IN ARTICLE II HEREOF IS
ADJUDGED UNLAWFUL UNDER THE ANTI-TRUST LAWS OF THE UNITED STATES AND
ILLEGAL, NULL AND VOID. 

      ARTICLE V 

THE DEFENDANT COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
AGENTS, EMPLOYEES, REPRESENTATIVES, AND SUBSIDIARIES, BE AND EACH OF
THEM HEREBY IS ENJOINED FROM ENTERING INTO OR PERFORMING ANY AGREEMENT
OR UNDERSTANDING TO FIX, MAINTAIN, STABILIZE, OR MAKE UNIFORM, BY
PATENT LICENSE AGREEMENTS OR BY OTHER CONCERTED ACTION, THE PRICES, OR
THE TERMS OR CONDITIONS OF SALE OF, GYPSUM PRODUCTS SOLD OR OFFERED FOR
SALE OR RESALE IN OR AFFECTING INTERSTATE COMMERCE; AND FROM ENGAGING
IN, PURSUANT TO SUCH AN AGREEMENT OR UNDERSTANDING, ANY OF THE
FOLLOWING ACTS OR PRACTICES: 

1.  FIXING, MAINTAINING OR MAKING UNIFORM THE KINDS, TYPES, OR
VARIETIES OF GYPSUM PRODUCTS MANUFACTURED OR SOLD, OR THE METHODS OF
MANUFACTURING, SELLING, PACKAGING, SHIPPING, DELIVERING OR DISTRIBUTING
GYPSUM PRODUCTS; 

2.  REFRAINING FROM THE MANUFACTURE, SALE OR DISTRIBUTION OF ANY
KIND, TYPE, OR VARIETY OF GYPSUM PRODUCTS OR THE METHOD OF
MANUFACTURING, SELLING, PACKAGING, SHIPPING, DELIVERING OR DISTRIBUTING
GYPSUM PRODUCTS; 

3.  AGREEING UPON OR ADHERING TO ANY BASIS FOR THE SELECTION OR
CLASSIFICATION OF PURCHASERS OF GYPSUM PRODUCTS; 

4.  REFRAINING FROM SELLING GYPSUM PRODUCTS TO ANY PURCHASER OR ANY
CLASS OF PURCHASERS; 

5.  AGREEING UPON OR ADHERING TO ANY SYSTEM OF SELLING OR QUOTING
GYPSUM PRODUCTS AT PRICES CALCULATED OR DETERMINED PURSUANT TO A BASING
POINT DELIVERED PRICE SYSTEM OR ANY OTHER PLAN OR SYSTEM WHICH RESULTS
IN IDENTICAL PRICES OR PRICE QUOTATIONS AT GIVEN POINTS OF SALE OR
QUOTATION BY DEFENDANTS USING SUCH PLAN OR SYSTEM; 

6.  POLICING, INVESTIGATING, CHECKING OR INQUIRING INTO THE PRICES,
QUANTITIES, TERMS OR CONDITIONS OF ANY OFFER TO SELL OR SALE OF GYPSUM
PRODUCTS. 

      ARTICLE VI 

1.  DEFENDANT UNITED STATES GYPSUM COMPANY IS HEREBY ORDERED AND
DIRECTED TO GRANT TO EACH APPLICANT THEREFOR A NON-EXCLUSIVE LICENSE TO
MAKE, USE AND VEND UNDER ANY, SOME OR ALL OF THE PATENTS NOW OR
HEREAFTER OWNED OR CONTROLLED BY IT; AND IS HEREBY ENJOINED FROM MAKING
ANY SALE OR OTHER DISPOSITION OF ANY OF SAID PATENTS WHICH DEPRIVES IT
OF THE POWER OR AUTHORITY TO GRANT SUCH LICENSES, UNLESS IT REQUIRES,
AS A CONDITION OF SUCH SALE, TRANSFER OR ASSIGNMENT, THAT THE
PURCHASER, TRANSFEREE OR ASSIGNEE SHALL OBSERVE THE REQUIREMENTS OF
ARTICLES VI AND VIII OF THIS JUDGMENT AND UNLESS THE PURCHASER,
TRANSFEREE OR ASSIGNEE SHALL FILE WITH THIS COURT, PRIOR TO
CONSUMMATION OF SAID TRANSACTION, AN UNDERTAKING TO BE BOUND BY SAID
ARTICLES OF THIS JUDGMENT. 

2.  DEFENDANT UNITED STATES GYPSUM COMPANY IS HEREBY ENJOINED FROM
INCLUDING ANY RESTRICTION OR CONDITION WHATSOEVER IN ANY LICENSE OR
SUBLICENSE GRANTED BY IT PURSUANT TO THE PROVISIONS OF THIS ARTICLE
EXCEPT THAT (A) THE LICENSE MAY BE NONTRANSFERABLE; (B) A REASONABLE
NON-DISCRIMINATORY ROYALTY MAY BE CHARGED, WHICH ROYALTY MAY NOT BE
IMPOSED UPON OR MEASURED BY PATENT-FREE PRODUCTS, PROCESSES OR USES;
(C) REASONABLE PROVISIONS MAY BE MADE FOR PERIODIC INSPECTION OF THE
BOOKS AND RECORDS OF THE LICENSEE BY AN INDEPENDENT AUDITOR OR ANY
PERSON ACCEPTABLE TO THE LICENSEE, WHO SHALL REPORT TO THE LICENSOR
ONLY THE AMOUNT OF THE ROYALTY DUE AND PAYABLE; (D) REASONABLE
PROVISION MAY BE MADE FOR CANCELLATION OF THE LICENSE UPON FAILURE OF
THE LICENSEE TO PAY THE ROYALTY OR TO PERMIT THE INSPECTION OF ITS
BOOKS AND RECORDS AS HEREINABOVE PROVIDED; (E) THE LICENSE MUST PROVIDE
THAT THE LICENSEE MAY CANCEL THE LICENSE AT ANY TIME AFTER ONE YEAR
FROM THE INITIAL DATE THEREOF BY GIVING 30 DAYS' NOTICE IN WRITING TO
THE LICENSOR. 

3.  UPON RECEIPT OF WRITTEN REQUEST FOR A LICENSE UNDER THE
PROVISIONS OF THIS ARTICLE, DEFENDANT UNITED STATES GYPSUM COMPANY
SHALL ADVISE THE APPLICANT IN WRITING OF THE ROYALTY WHICH IT DEEMS
REASONABLE FOR THE PATENT OR PATENTS TO WHICH THE REQUEST PERTAINS.  IF
THE PARTIES ARE UNABLE TO AGREE UPON A REASONABLE ROYALTY WITHIN 60
DAYS FROM THE DATE SUCH REQUEST FOR A LICENSE WAS RECEIVED BY UNITED
STATES GYPSUM COMPANY, THE APPLICANT THEREFOR MAY FORTHWITH APPLY TO
THIS COURT FOR THE DETERMINATION OF A REASONABLE ROYALTY, AND UNITED
STATES GYPSUM COMPANY SHALL, UPON RECEIPT OF NOTICE OF THE FILING OF
SUCH APPLICATION, PROMPTLY GIVE NOTICE THEREOF TO THE ATTORNEY GENERAL,
WHO SHALL HAVE THE RIGHT TO BE HEARD THEREON.  IN SUCH PROCEEDING, THE
BURDEN OF PROOF SHALL BE ON UNITED STATES GYPSUM COMPANY TO ESTABLISH
THE REASONABLENESS OF THE ROYALTY REQUESTED BY IT, AND THE REASONABLE
ROYALTY RATES, IF ANY, DETERMINED BY THE COURT SHALL APPLY TO THE
APPLICANT AND ALL OTHER LICENSEES UNDER THE SAME PATENT OR PATENTS. 
PENDING THE COMPLETION OF ANY SUCH PROCEEDING THE APPLICANT SHALL HAVE
THE RIGHT TO MAKE, USE AND VEND UNDER THE PATENTS TO WHICH HIS
APPLICATION PERTAINS WITHOUT PAYMENT OF ROYALTY OR OTHER COMPENSATION
EXCEPT AS PROVIDED IN PARAGRAPH 4 OF THIS ARTICLE. 

4.  WHERE AN APPLICATION HAS BEEN MADE TO THIS COURT FOR THE
DETERMINATION OF A REASONABLE ROYALTY UNDER PARAGRAPH 3 OF THIS
ARTICLE, UNITED STATES GYPSUM COMPANY MAY APPLY TO THE COURT TO FIX AN
INTERIM ROYALTY RATE PENDING FINAL DETERMINATION OF WHAT CONSTITUTES A
REASONABLE ROYALTY.  IF THE COURT FIXES SUCH INTERIM ROYALTY RATE,
UNITED STATES GYPSUM COMPANY SHALL THEN ISSUE AND THE APPLICANT SHALL
ACCEPT A LICENSE, OR, AS THE CASE MAY BE, A SUBLICENSE, PROVIDING FOR
THE PERIODIC PAYMENT OF ROYALTIES AT SUCH INTERIM RATE FROM THE DATE OF
THE FILING OF SUCH APPLICATION BY THE APPLICANT.  IF THE APPLICANT
FAILS TO ACCEPT SUCH LICENSE OR FAILS TO PAY THE INTERIM ROYALTY IN
ACCORDANCE THEREWITH, SUCH ACTION SHALL BE GROUNDS FOR THE DISMISSAL OF
HIS APPLICATION.  WHERE AN INTERIM LICENSE OR SUBLICENSE HAS BEEN
ISSUED PURSUANT TO THIS PARAGRAPH, REASONABLE ROYALTY RATES, IF ANY, AS
FINALLY DETERMINED BY THE COURT SHALL BE RETROACTIVE FOR THE APPLICANT
AND FOR ALL OTHER LICENSEES UNDER THE SAME PATENT OR PATENTS WHOSE
LICENSES PROVIDE FOR A HIGHER ROYALTY RATE TO A DATE TO BE FIXED BY THE
COURT. 

5.  THIS JUDGMENT SHALL NOT BE CONSTRUED (A) AS PREVENTING ANY
APPLICANT FROM ATTACKING, IN THIS PROCEEDING OR IN ANY OTHER
PROCEEDING, THE VALIDITY OR SCOPE OF ANY PATENT OF DEFENDANT UNITED
STATES GYPSUM COMPANY, OR (B) AS IMPORTING ANY VALIDITY OR VALUE TO ANY
SUCH PATENT. 

6.  AT ANY TIME AFTER FIVE YEARS FROM THE EFFECTIVE DATE OF THIS
JUDGMENT DEFENDANT UNITED STATES GYPSUM COMPANY MAY APPLY TO THIS
COURT, AFTER NOTICE TO THE ATTORNEY GENERAL, FOR AN ORDER LIMITING THE
APPLICATION OF PARAGRAPH 1 OF THIS ARTICLE TO PATENTS COMING UNDER THE
OWNERSHIP OR CONTROL OF THE UNITED STATES GYPSUM COMPANY PRIOR TO THE
DATE OF SUCH APPLICATION; AND THE COURT, UPON A SHOWING BY UNITED
STATES GYPSUM COMPANY THAT THE EFFECTS OF DEFENDANTS' COMBINATION HAVE
BEEN DISSIPATED AND THAT COMPETITIVE CONDITIONS IN THE GYPSUM BOARD
INDUSTRY HAVE BEEN RESTORED, SHALL GRANT SAID APPLICATION AND ENTER AN
ORDER MODIFYING PARAGRAPH 1 OF ARTICLE VI OF THIS JUDGMENT. 

                             ARTICLE VII 

NOTHING CONTAINED IN THIS JUDGMENT SHALL BE DEEMED TO HAVE ANY EFFECT
UPON THE OPERATIONS OR ACTIVITIES OF THE DEFENDANTS WHICH ARE
AUTHORIZED OR PERMITTED BY THE ACT OF CONGRESS OF APRIL 10, 1918,
COMMONLY CALLED THE WEBB-POMERENE ACT, OR THE ACT OF CONGRESS OF SUGUST
17, 1937, COMMONLY CALLED THE MILLER-TYDINGS ACT, OR BY ANY PRESENT OR
FUTURE ACT OF CONGRESS OR AMENDMENT THERETO; PROVIDED, HOWEVER, NOTHING
CONTAINED IN THIS ARTICLE SHALL IN ANY MANNER AFFECT THE PROVISIONS OF
ARTICLE VI OF THIS JUDGMENT. 

                             ARTICLE VIII 

FOR THE PURPOSE OF SECURING COMPLIANCE WITH THIS JUDGMENT, AUTHORIZED
REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE, UPON WRITTEN REQUEST OF
THE ATTORNEY GENERAL OR AN ASSISTANT ATTORNEY GENERAL TO ANY DEFENDANT
COMPANY AND UPON REASONABLE NOTICE, SHALL BE PERMITTED, SUBJECT TO ANY
LEGALLY RECOGNIZED PRIVILEGE, ACCESS DURING THE OFFICE HOURS OF SAID
DEFENDANT TO ALL BOOKS, LEDGERS, ACCOUNTS, CORRESPONDENCE, MEMORANDA,
AND OTHER RECORDS AND DOCUMENTS IN THE POSSESSION OR UNDER THE CONTROL
OF SAID DEFENDANT RELATING TO ANY MATTERS CONTAINED IN THIS JUDGMENT. 
ANY AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF JUSTICE SHALL BE
PERMITTED TO INTERVIEW OFFICERS OR EMPLOYEES OF ANY DEFENDANT COMPANY
REGARDING ANY SUCH MATTERS, SUBJECT TO THE REASONABLE CONVENIENCE OF
SAID DEFENDANT BUT WITHOUT RESTRAINT OR INTERFERENCE FROM IT; PROVIDED,
HOWEVER, THAT SUCH OFFICER OR EMPLOYEE MAY HAVE COUNSEL PRESENT.  NO
INFORMATION OBTAINED BY THE MEANS PROVIDED IN THIS ARTICLE SHALL BE
DIVULGED BY ANY REPRESENTATIVE OF THE DEPARTMENT OF JUSTICE TO ANY
PERSON OTHER THAN A DULY AUTHORIZED REPRESENTATIVE OF SUCH DEPARTMENT,
EXCEPT IN THE COURSE OF LEGAL PROCEEDINGS TO WHICH THE UNITED STATES IS
A PARTY FOR THE PURPOSE OF SECURING COMPLIANCE WITH THIS JUDGMENT OR AS
OTHERWISE REQUIRED BY LAW. 

           ARTICLE IX 

JUDGMENT IS ENTERED AGAINST THE DEFENDANT COMPANIES FOR ALL COSTS TO
BE TAXED IN THIS PROCEEDING, AND THE COSTS SO TO BE TAXED ARE HEREBY
PRORATED AGAINST THE SEVERAL DEFENDANT COMPANIES AS FOLLOWS:  (HERE
FOLLOWS ALLOCATION.) 

                              ARTICLE X 

JURISDICTION OF THIS CAUSE, AND OF THE PARTIES HERETO, IS RETAINED BY
THE COURT FOR THE PURPOSE OF ENABLING ANY OF THE PARTIES TO THIS
JUDGMENT, OR ANY OTHER PERSON, FIRM OR CORPORATION THAT MAY HEREAFTER
BECOME BOUND THEREBY IN WHOLE OR IN PART, TO APPLY TO THIS COURT AT ANY
TIME FOR SUCH ORDERS, MODIFICATIONS, VACATIONS OR DIRECTIONS AS MAY BE
NECESSARY OR APPROPRIATE (1) FOR THE CONSTRUCTION OR CARRYING OUT OF
THIS JUDGMENT, AND (2) FOR THE ENFORCEMENT OF COMPLIANCE THEREWITH AND
THE PUNISHMENT OF VIOLATIONS THEREOF. 
..END :














HARRIS V. COMMISSIONER, 340 U.S. 106 


NO. 14.  ARGUED OCTOBER 16, 1950.  - DECIDED NOVEMBER 27, 1950.  - 178
F.2D 861, REVERSED. 


1.  PETITIONER AND HER HUSBAND ENTERED INTO AN AGREEMENT FOR
SETTLEMENT OF THEIR PROPERTY RIGHTS, CONDITIONED ON THE ENTRY OF A
DECREE OF DIVORCE IN A SUIT THEN PENDING IN NEVADA.  THE DIVORCE COURT
APPROVED THE AGREEMENT AND ENTERED A DECREE OF DIVORCE.  BOTH THE
AGREEMENT AND THE DECREE PROVIDED THAT THE AGREEMENT SHOULD SURVIVE THE
DECREE.  A FEDERAL GIFT TAX WAS ASSESSED ON THE AMOUNT BY WHICH THE
VALUE OF THE PROPERTY TRANSFERRED TO THE HUSBAND EXCEEDED THAT RECEIVED
BY PETITIONER.  HELD:  THE FEDERAL GIFT TAX (26 U.S.C. SECS. 1000,
1002) WAS NOT APPLICABLE.  PP. 108-113. 

2.  PETITIONER HAVING DIED SINCE THE SUBMISSION OF THIS CASE AND AN
ADMINISTRATOR OF HER ESTATE HAVING NOT YET BEEN APPOINTED, THE JUDGMENT
OF THIS COURT IS ENTERED AS OF THE DATE THE CASE WAS SUBMITTED, IN
PURSUANCE OF THE PRACTICE OBTAINING IN THOSE CIRCUMSTANCES.  PP. 112
113. 

HARRIS V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE COMMISSIONER'S DETERMINATION OF A GIFT TAX DEFICIENCY FOR 1943
WAS EXPUNGED BY THE TAX COURT.  10 T.C. 741.  THE COURT OF APPEALS
REVERSED.  178 F.2D 861.  THIS COURT GRANTED CERTIORARI, LIMITED TO
QUESTIONS 2 AND 3 PRESENTED BY THE PETITION.  339 U.S. 917.  REVERSED,
P. 113. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL ESTATE TAX AND THE FEDERAL GIFT TAX, AS HELD IN A LINE OF
CASES ENDING WITH COMMISSIONER V. WEMYSS, 324 U.S. 303, AND MERRILL V.
FAHS, 324 U.S. 308, ARE CONSTRUED IN PARI MATERIA, SINCE THE PURPOSE OF
THE GIFT TAX IS TO COMPLEMENT THE ESTATE TAX BY PREVENTING TAX-FREE
DEPLETION OF THE TRANSFEROR'S ESTATE DURING HIS LIFETIME.  BOTH THE
GIFT TAX  FN1  AND THE ESTATE TAX  FN2  EXCLUDE TRANSFERS MADE FOR "AN
ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH."  IN THE
ESTATE TAX THIS REQUIREMENT IS LIMITED TO DEDUCTIONS FOR CLAIMS BASED
UPON "A PROMISE OR AGREEMENT"; FN3  BUT THE CONSIDERATION FOR THE
"PROMISE OR AGREEMENT" MAY NOT BE THE RELEASE OF MARITAL RIGHTS IN THE
DECEDENT'S PROPERTY.  FN4  IN THE WEMYSS AND MERRILL CASES THE QUESTION
WAS WHETHER THE GIFT TAX WAS APPLICABLE TO PREMARITAL PROPERTY
SETTLEMENTS.  IF THE STANDARDS OF THE ESTATE TAX WERE TO BE APPLIED EX
PROPRIO VIGORE IN GIFT TAX CASES, THOSE TRANSFERS WOULD BE TAXABLE
BECAUSE THERE WAS A "PROMISE OR AGREEMENT" TOUCHING MARITAL RIGHTS IN
PROPERTY.  WE SUSTAINED THE TAX, THUS GIVING "ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH" THE SAME MEANING UNDER BOTH
STATUTES INSOFAR AS PREMARITAL PROPERTY SETTLEMENTS OR AGREEMENTS ARE
CONCERNED. 

THE PRESENT CASE RAISES THE QUESTION WHETHER WEMYSS AND MERRILL
REQUIRE THE IMPOSITION OF THE GIFT TAX IN THE TYPE OF POST-NUPTIAL
SETTLEMENT OF PROPERTY RIGHTS INVOLVED HERE. 

PETITIONER DIVORCED HER HUSBAND, REGINALD WRIGHT, IN NEVADA IN 1943. 
BOTH SHE AND HER HUSBAND HAD SUBSTANTIAL PROPERTY INTERESTS.  THEY
REACHED AN UNDERSTANDING AS RESPECTS THE UNSCRAMBLING OF THOSE
INTERESTS, THE SETTLEMENT OF ALL LITIGATED CLAIMS TO THE SEPARATE
PROPERTIES, THE ASSUMPTION OF OBLIGATIONS, AND THE TRANSFER OF
PROPERTIES. 

WRIGHT RECEIVED FROM PETITIONER THE CREATION OF A TRUST FOR HIS
LIFETIME OF THE INCOME FROM HER REMAINDER INTEREST IN A THEN-EXISTING
TRUST; AN ASSUMPTION BY HER OF AN INDEBTEDNESS OF HIS OF $47,650; AND
HER PROMISE TO PAY HIM $416.66 A MONTH FOR TEN YEARS. 

PETITIONER RECEIVED FROM WRIGHT 21/90 OF CERTAIN REAL PROPERTY IN
CONTROVERSY; A DISCONTINUANCE OF A PARTITION SUIT THEN PENDING; AN
INDEMNIFICATION FROM AND ASSUMPTION BY HIM OF ALL LIABILITY ON A BOND
AND MORTGAGE ON CERTAIN REAL PROPERTY IN LONDON, ENGLAND; AND AN
INDEMNIFICATION AGAINST LIABILITY IN CONNECTION WITH CERTAIN REAL
PROPERTY IN THE AGREEMENT.  IT WAS FOUND THAT THE VALUE OF THE PROPERTY
TRANSFERRED TO WRIGHT EXCEEDED THAT RECEIVED BY PETITIONER BY
$107,150.  THE COMMISSIONER ASSESSED A GIFT TAX ON THE THEORY THAT ANY
RIGHTS WHICH WRIGHT MIGHT HAVE GIVEN UP BY ENTERING INTO THE AGREEMENT
COULD NOT BE ADEQUATE AND FULL CONSIDERATION. 

IF THE PARTIES HAD WITHOUT MORE GONE AHEAD AND VOLUNTARILY UNRAVELLED
THEIR BUSINESS INTERESTS ON THE BASIS OF THIS COMPROMISE, THERE WOULD
BE NO QUESTION THAT THE GIFT TAX WOULD BE PAYABLE.  FOR THERE WOULD
HAVE BEEN A "PROMISE OR AGREEMENT" THAT EFFECTED A RELINQUISHMENT OF
MARITAL RIGHTS IN PROPERTY.  IT THEREFORE WOULD FALL UNDER THE BAN OF
THE PROVISION OF THE ESTATE TAX  FN5 WHICH BY JUDICIAL CONSTRUCTION HAS
BEEN INCORPORATED INTO THE GIFT TAX STATUTE. 

BUT THE PARTIES DID NOT SIMPLY UNDERTAKE A VOLUNTARY CONTRACTUAL
DIVISION OF THEIR PROPERTY INTERESTS.  THEY WERE FACED WITH THE FACT
THAT NEVADA LAW NOT ONLY AUTHORIZED BUT INSTRUCTED THE DIVORCE COURT TO
DECREE A JUST AND EQUITABLE DISPOSITION OF BOTH THE COMMUNITY AND THE
SEPARATE PROPERTY OF THE PARTIES.  FN6  THE AGREEMENT RECITED THAT IT
WAS EXECUTED IN ORDER TO EFFECT A SETTLEMENT OF THE RESPECTIVE PROPERTY
RIGHTS OF THE PARTIES "IN THE EVENT A DIVORCE SHOULD BE DECREED"; AND
IT PROVIDED THAT THE AGREEMENT SHOULD BE SUBMITTED TO THE DIVORCE COURT
"FOR ITS APPROVAL."  IT WENT ON TO SAY, "IT IS OF THE ESSENCE OF THIS
AGREEMENT THAT THE SETTLEMENT HEREIN PROVIDED FOR SHALL NOT BECOME
OPERATIVE IN ANY MANNER NOR SHALL ANY OF THE RECITALS OR COVENANTS
HEREIN BECOME BINDING UPON EITHER PARTY UNLESS A DECREE OF ABSOLUTE
DIVORCE BETWEEN THE PARTIES SHALL BE ENTERED IN THE PENDING NEVADA
ACTION." 

IF THE AGREEMENT HAD STOPPED THERE AND WERE IN FACT SUBMITTED TO THE
COURT, IT IS CLEAR THAT THE GIFT TAX WOULD NOT BE APPLICABLE.  THAT
ARRANGEMENT WOULD NOT BE A "PROMISE OR AGREEMENT" IN THE STATUTORY
SENSE.  IT WOULD BE WHOLLY CONDITIONAL UPON THE ENTRY OF THE DECREE;
THE DIVORCE COURT MIGHT OR MIGHT NOT ACCEPT THE PROVISIONS OF THE
ARRANGEMENT AS THE MEASURE OF THE RESPECTIVE OBLIGATIONS; IT MIGHT
INDEED ADD TO OR SUBTRACT FROM THEM.  THE DECREE, NOT THE ARRANGEMENT
SUBMITTED TO THE COURT, WOULD FIX THE RIGHTS AND OBLIGATIONS OF THE
PARTIES.  THAT WAS THE THEORY OF COMMISSIONER V. MARESI, 156 F.2D 929,
AND WE THINK IT SOUND. 

EVEN THE COMMISSIONER CONCEDES THAT THAT RESULT WOULD BE CORRECT IN
CASE THE PROPERTY SETTLEMENT WAS LITIGATED IN THE DIVORCE ACTION.  THAT
WAS WHAT HAPPENED IN COMMISSIONER V. CONVERSE, 163 F.2D 131, WHERE THE
DIVORCE COURT DECREED A LUMP-SUM AWARD IN LIEU OF MONTHLY PAYMENTS
PROVIDED BY THE SEPARATION AGREEMENT.  YET WITHOUT THE DECREE THERE
WOULD BE NO ENFORCEABLE, EXISTING AGREEMENT WHETHER THE SETTLEMENT WAS
LITIGATED OR UNLITIGATED.  BOTH REQUIRE THE APPROVAL OF THE COURT
BEFORE AN OBLIGATION ARISES.  THE HAPPENSTANCE THAT THE DIVORCE COURT
MIGHT APPROVE THE ENTIRE SETTLEMENT, OR MODIFY IT IN UNSUBSTANTIAL
DETAILS, OR WORK OUT MATERIAL CHANGES SEEMS TO US UNIMPORTANT.  IN EACH
CASE IT IS THE DECREE THAT CREATES THE RIGHTS AND THE DUTIES; AND A
DECREE IS NOT A "PROMISE OR AGREEMENT" IN ANY SENSE - POPULAR OR
STATUTORY. 

BUT THE PRESENT CASE IS DISTINGUISHED BY REASON OF A FURTHER
PROVISION IN THE UNDERTAKING AND IN THE DECREE.  THE FORMER PROVIDED
THAT "THE COVENANTS IN THIS AGREEMENT SHALL SURVIVE ANY DECREE OF
DIVORCE WHICH MAY BE ENTERED."  AND THE DECREE STATED "IT IS ORDERED
THAT SAID AGREEMENT AND SAID TRUST AGREEMENTS FORMING A PART THEREOF
SHALL SURVIVE THIS DECREE."  THE COURT OF APPEALS TURNED THE CASE ON
THOSE PROVISIONS.  IT CONCLUDED THAT SINCE THERE WERE TWO SANCTIONS FOR
THE PAYMENTS AND TRANSFERS - CONTEMPT UNDER THE DIVORCE DECREE AND
EXECUTION UNDER THE CONTRACT - THEY WERE FOUNDED NOT ONLY ON THE DECREE
BUT UPON BOTH THE DECREE AND A "PROMISE OR AGREEMENT."  IT THEREFORE
HELD THE EXCESS OF THE VALUE OF THE PROPERTY WHICH PETITIONER GAVE HER
HUSBAND OVER WHAT HE GAVE HER TO BE TAXABLE AS A GIFT.  178 F.2D 861. 

WE, HOWEVER, THINK THAT THE GIFT TAX STATUTE IS CONCERNED WITH THE
SOURCE OF RIGHTS, NOT WITH THE MANNER IN WHICH RIGHTS AT SOME DISTANT
TIME MAY BE ENFORCED.  REMEDIES FOR ENFORCEMENT WILL VARY FROM STATE TO
STATE.  IT IS "THE TRANSFER" OF THE PROPERTY WITH WHICH THE GIFT TAX
STATUTE IS CONCERNED,  FN7  NOT THE SANCTIONS WHICH THE LAW SUPPLIES TO
ENFORCE TRANSFERS.  IF "THE TRANSFER" OF MARITAL RIGHTS IN PROPERTY IS
EFFECTED BY THE PARTIES, IT IS PURSUANT TO A "PROMISE OR AGREEMENT" IN
THE MEANING OF THE STATUTE.  IF "THE TRANSFER" IS EFFECTED BY COURT
DECREE, NO "PROMISE OR AGREEMENT" OF THE PARTIES IS THE OPERATIVE
FACT.  IN NO REALISTIC SENSE IS A COURT DECREE A "PROMISE OR AGREEMENT"
BETWEEN THE PARTIES TO A LITIGATION.  IF FINER, MORE LEGALISTIC LINES
ARE TO BE DRAWN, CONGRESS MUST DO IT. 

IF, AS WE HOLD, THE CASE IS FREE FROM ANY "PROMISE OR AGREEMENT"
CONCERNING MARITAL RIGHTS IN PROPERTY, IT PRESENTS NO REMAINING
PROBLEMS OF DIFFICULTY.  THE TREASURY REGULATIONS  FN8 RECOGNIZE AS TAX
FREE "A SALE, EXCHANGE, OR OTHER TRANSFER OF PROPERTY MADE IN THE
ORDINARY COURSE OF BUSINESS (A TRANSACTION WHICH IS BONA FIDE, AT ARM'S
LENGTH, AND FREE FROM ANY DONATIVE INTENT)."  THIS TRANSACTION IS NOT
"IN THE ORDINARY COURSE OF BUSINESS" IN ANY CONVENTIONAL SENSE.  FEW
TRANSACTIONS BETWEEN HUSBAND AND WIFE EVER WOULD BE; AND THOSE UNDER
THE AEGIS OF A DIVORCE COURT ARE NOT.  BUT IF TWO PARTNERS ON
DISSOLUTION OF THE FIRM ENTERED INTO A TRANSACTION OF THIS CHARACTER OR
IF CHANCERY DID IT FOR THEM, THERE WOULD SEEM TO BE NO DOUBT THAT THE
UNSCRAMBLING OF THE BUSINESS INTERESTS WOULD SATISFY THE SPIRIT OF THE
REGULATIONS.  NO REASON IS APPARENT WHY HUSBAND AND WIFE SHOULD BE
UNDER A HEAVIER HANDICAP ABSENT A STATUTE WHICH BRINGS ALL MARITAL
PROPERTY SETTLEMENTS UNDER THE GIFT TAX. 

WE ARE NOW ADVISED THAT SINCE SUBMISSION OF THE CASE ON OCTOBER 16,
1950, PETITIONER HAS DIED, AND THAT IT WILL TAKE SOME WEEKS BEFORE AN
ADMINISTRATOR OF HER ESTATE CAN BE APPOINTED.  ACCORDINGLY WE ENTER OUR
JUDGMENT AS OF OCTOBER 16, 1950, IN PURSUANCE OF THE PRACTICE OBTAINING
IN THOSE CIRCUMSTANCES.  SEE MITCHELL V. OVERMAN, 103 U.S. 62, 64-65;
MCDONALD V. MAXWELL, 274 U.S. 91, 99.  REVERSED. 

FN1  SECTION 1002 OF 26 U.S.C. (1946 ED.)  PROVIDES: "WHERE PROPERTY
IS TRANSFERRED FOR LESS THAN AN ADEQUATE AND FULL CONSIDERATION IN
MONEY OR MONEY'S WORTH, THEN THE AMOUNT BY WHICH THE VALUE OF THE
PROPERTY EXCEEDED THE VALUE OF THE CONSIDERATION SHALL, FOR THE PURPOSE
OF THE TAX IMPOSED BY THIS CHAPTER, BE DEEMED A GIFT, AND SHALL BE
INCLUDED IN COMPUTING THE AMOUNT OF GIFTS MADE DURING THE CALENDAR
YEAR." 

FN2  SECTION 812 OF 26 U.S.C. (1946 ED.)  PROVIDES:  "FOR THE PURPOSE
OF THE TAX THE VALUE OF THE NET ESTATE SHALL BE DETERMINED, IN THE CASE
OF A CITIZEN OR RESIDENT OF THE UNITED STATES BY DEDUCTING FROM THE
VALUE OF THE GROSS ESTATE -  ...  (B) EXPENSES, LOSSES, INDEBTEDNESS,
AND TAXES.  SUCH AMOUNTS -  ...  (3) FOR CLAIMS AGAINST THE ESTATE, (4)
FOR UNPAID MORTGAGES UPON, OR ANY INDEBTEDNESS IN RESPECT TO, PROPERTY
WHERE THE VALUE OF DECEDENT'S INTEREST THEREIN, UNDIMINISHED BY SUCH
MORTGAGE OR INDEBTEDNESS, IS INCLUDED IN THE VALUE OF THE GROSS ESTATE,
... AS ARE ALLOWED BY THE LAWS OF THE JURISDICTION, WHETHER WITHIN OR
WITHOUT THE UNITED STATES, UNDER WHICH THE ESTATE IS BEING
ADMINISTERED, BUT NOT INCLUDING ANY INCOME TAXES UPON INCOME RECEIVED
AFTER THE DEATH OF THE DECEDENT, OR PROPERTY TAXES NOT ACCRUED BEFORE
HIS DEATH, OR ANY ESTATE, SUCCESSION, LEGACY, OR INHERITANCE TAXES. 
THE DEDUCTION HEREIN ALLOWED IN THE CASE OF CLAIMS AGAINST THE ESTATE,
UNPAID MORTGAGES, OR ANY INDEBTEDNESS SHALL, WHEN FOUNDED UPON A
PROMISE OR AGREEMENT, BE LIMITED TO THE EXTENT THAT THEY WERE
CONTRACTED BONA FIDE AND FOR AN ADEQUATE AND FULL CONSIDERATION IN
MONEY OR MONEY'S WORTH  ....  FOR THE PURPOSES OF THIS SUBCHAPTER, A
RELINQUISHMENT OR PROMISED RELINQUISHMENT OF DOWER, CURTESY, OR OF A
STATUTORY ESTATE CREATED IN LIEU OF DOWER OR CURTESY, OR OF OTHER
MARITAL RIGHTS IN THE DECEDENT'S PROPERTY OR ESTATE, SHALL NOT BE
CONSIDERED TO ANY EXTENT A CONSIDERATION 'IN MONEY OR MONEY'S WORTH.'" 

FN3  SEE SEC. 812(B) SUPRA, NOTE 2. 

FN4  IBID. 

FN5  SEE SEC. 812(B) SUPRA, NOTE 2. 

FN6  AT THE TIME OF THE DIVORCE NEVADA COMPILED LAWS (SUPP. 1931
1941) SEC. 9463 PROVIDED:  "IN GRANTING A DIVORCE, THE COURT MAY AWARD
SUCH ALIMONY TO THE WIFE AND SHALL MAKE SUCH DISPOSITION OF THE
COMMUNITY AND SEPARATE PROPERTY OF THE PARTIES AS SHALL APPEAR JUST AND
EQUITABLE, HAVING REGARD TO THE RESPECTIVE MERITS OF THE PARTIES AND TO
THE CONDITION IN WHICH THEY WILL BE LEFT BY SUCH DIVORCE, AND TO THE
PARTY THROUGH WHOM THE PROPERTY WAS ACQUIRED, AND TO THE BURDENS, IF
ANY, IMPOSED UPON IT FOR THE BENEFIT OF THE CHILDREN...." 

FN7  SECTION 1000 OF 26 U.S.C. (1946 ED.)  PROVIDES:  "(A)  FOR THE
CALENDAR YEAR 1940 AND EACH CALENDAR YEAR THEREAFTER A TAX, COMPUTED AS
PROVIDED IN SECTION 1001, SHALL BE IMPOSED UPON THE TRANSFER DURING
SUCH CALENDAR YEAR BY ANY INDIVIDUAL, RESIDENT OR NONRESIDENT, OF
PROPERTY BY GIFT....  (B)  THE TAX SHALL APPLY WHETHER THE TRANSFER IS
IN TRUST OR OTHERWISE, WHETHER THE GIFT IS DIRECT OR INDIRECT, AND
WHETHER THE PROPERTY IS REAL OR PERSONAL, TANGIBLE OR INTANGIBLE; BUT,
IN THE CASE OF A NONRESIDENT NOT A CITIZEN OF THE UNITED STATES, SHALL
APPLY TO A TRANSFER ONLY IF THE PROPERTY IS SITUATED WITHIN THE UNITED
STATES." 

FN8  SECTION 86.8 OF TREAS. REG. 108 PROVIDES:  "TRANSFERS REACHED BY
THE STATUTE ARE NOT CONFINED TO THOSE ONLY WHICH, BEING WITHOUT A
VALUABLE CONSIDERATION, ACCORD WITH THE COMMON LAW CONCEPT OF GIFTS,
BUT EMBRACE AS WELL SALES, EXCHANGES, AND OTHER DISPOSITIONS OF
PROPERTY FOR A CONSIDERATION IN MONEY OR MONEY'S WORTH TO THE EXTENT
THAT THE VALUE OF THE PROPERTY TRANSFERRED BY THE DONOR EXCEEDS THE
VALUE OF THE CONSIDERATION GIVEN THEREFOR.  HOWEVER, A SALE, EXCHANGE,
OR OTHER TRANSFER OF PROPERTY MADE IN THE ORDINARY COURSE OF BUSINESS
(A TRANSACTION WHICH IS BONA FIDE, AT ARM'S LENGTH, AND FREE FROM ANY
DONATIVE INTENT), WILL BE CONSIDERED AS MADE FOR AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH.  A CONSIDERATION NOT REDUCIBLE
TO A MONEY VALUE, AS LOVE AND AFFECTION, PROMISE OF MARRIAGE, ETC., IS
TO BE WHOLLY DISREGARDED, AND THE ENTIRE VALUE OF THE PROPERTY
TRANSFERRED CONSTITUTES THE AMOUNT OF THE GIFT."    MR. JUSTICE
FRANKFURTER, JOINED BY MR. JUSTICE BLACK, MR. JUSTICE BURTON, AND MR.
JUSTICE MINTON, DISSENTING. 

"TRANSFERRED FOR LESS THAN AN ADEQUATE AND FULL CONSIDERATION IN MONEY
OR MONEY'S WORTH."  47 STAT. 247, NOW I.R.C., SEC. 1002, 26 U.S.C. SEC.
1002.  IN MERRILL V. FAHS, 324 U.S. 308, THE COURT HELD THAT AN
ANTENUPTIAL SETTLEMENT IS SUBJECT TO THIS TAX.  FN1  BELIEVING AS I DO
THAT THE DISPOSITION OF THE CASE BEFORE US LARGELY DEPENDS ON THE
WEIGHT GIVEN TO THE CONSIDERATIONS WHICH THERE PREVAILED,
RECAPITULATION OF THEM IS APPROPRIATE.  THE COURT THERE BASED ITS
RESULT ON THE CONCLUSION THAT A TRANSFER OF PROPERTY PURSUANT TO AN
ANTENUPTIAL SETTLEMENT WAS NOT MADE IN EXCHANGE FOR "AN ADEQUATE AND
FULL CONSIDERATION IN MONEY OR MONEY'S WORTH."  THIS CONCLUSION WAS
REINFORCED BY READING INTO THE GIFT TAX PROVISION THE GLOSS OF THE
INTERRELATED ESTATE TAX OF THE SAME YEAR THAT THE RELINQUISHMENT OF
"MARITAL RIGHTS  ...  SHALL NOT BE CONSIDERED TO ANY EXTENT A
CONSIDERATION 'IN MONEY OR MONEY'S WORTH.'"  REVENUE ACT OF 1932, SEC.
804, 47 STAT. 280, NOW I.R.C., SEC. 812(B), 26 U.S.C. SEC. 812(B). 

THE CASE BEFORE US CONCERNS NOT AN ANTENUPTIAL AGREEMENT, BUT WHAT
THE TAX COURT CALLED A "PROPERTY SETTLEMENT AGREEMENT," CONTRACTED IN
ANTICIPATION OF DIVORCE.  EACH SPOUSE TRANSFERRED PROPERTY OF
SUBSTANTIAL VALUE TO THE OTHER AND EACH AGREED "TO RELEASE COMPLETELY
THE PROPERTY OF THE OTHER FROM ALL CLAIMS ARISING OUT OF THEIR
MARRIAGE."  10 T.C. 741, 743. 

UNLESS WE ARE NOW TO SAY THAT A SETTLEMENT OF PROPERTY IN WINDING UP,
AS IT WERE, A MARRIAGE, SMACKS MORE OF A BUSINESS ARRANGEMENT THAN AN
ANTENUPTIAL AGREEMENT AND THEREFORE SATISFIES THE REQUIREMENT OF "AN
ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH" WHICH WE
FOUND WANTING IN MERRILL V. FAHS, AND UNLESS WE ARE FURTHER TO OVERRULE
MERRILL V. FAHS INSOFAR AS IT JOINED THE GIFT TAX AND THE ESTATE TAX OF
THE REVENUE ACT OF 1932, SO AS TO INFUSE INTO THE GIFT TAX THE
EXPLICITNESS OF THE ESTATE TAX IN PRECLUDING THE SURRENDER OF MARITAL
RIGHTS FROM BEING DEEMED TO ANY EXTENT A CONSIDERATION "IN MONEY OR
MONEY'S WORTH," WE MUST HOLD THAT A SETTLEMENT OF PROPERTY SURRENDERING
MARITAL RIGHTS IN ANTICIPATION OF DIVORCE IS NOT MADE FOR "AN ADEQUATE
AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH." 

THE SAME YEAR THAT IT ENACTED THE GIFT TAX CONGRESS AMENDED THE
ESTATE TAX BY ADDING TO THE PROVISION THAT "ADEQUATE AND FULL
CONSIDERATION" WAS PREREQUISITE TO DEDUCTION OF "CLAIMS AGAINST THE
ESTATE" THE PHRASE, "WHEN FOUNDED UPON A PROMISE OR AGREEMENT." 
REVENUE ACT OF 1932, SEC. 805, 47 STAT. 280, NOW I.R.C., SEC. 812(B),
26 U.S.C. SEC. 812(B).  LEGISLATIVE HISTORY DEMONSTRATES THAT THIS
AMENDMENT WAS INTENDED NOT TO CHANGE THE LAW BUT TO MAKE CLEAR THAT THE
REQUIREMENT OF CONSIDERATION DID NOT PREVENT "DEDUCTION OF LIABILITIES
IMPOSED BY LAW OR ARISING OUT OF TORTS."  H.R. REP. NO. 708, 72D CONG.,
1ST SESS. 48; S. REP. NO. 665, 72D CONG., 1ST SESS. 51.  A SIMILAR
PRINCIPLE IS IMPLICIT IN THE GIFT TAX.  BY ITS STATUTORY LANGUAGE AND
AUTHORITATIVE COMMENTARIES THEREON CONGRESS DID NOT LEAVE THE INCIDENCE
OF THE GIFT TAX AT LARGE BY ENTRUSTING ITS APPLICATION TO THE PLAY OF
SUBTLETIES NECESSARY TO FINDING A "DONATIVE INTENT."  COMMISSIONER V.
WEMYSS, 324 U.S. 303, 306.  BUT WHILE BY THE GIFT TAX CONGRESS MEANT
"TO HIT ALL THE PROTEAN ARRANGEMENTS WHICH THE WIT OF MAN CAN DEVISE
THAT ARE NOT BUSINESS TRANSACTIONS" TO THE COMMON UNDERSTANDING,
COMMISSIONER V. WEMYSS, IBID., A GIFT TAX IS AN EXACTION WHICH DOES
PRESUPPOSE THE VOLUNTARY TRANSFER OF PROPERTY AND NOT A TRANSFER IN
OBEDIENCE TO LAW.  IN MERRILL V. FAHS, SUPRA, AT 313, WE STATED THAT
"TO INTERPRET THE SAME PHRASES IN THE TWO TAXES CONCERNING THE SAME
SUBJECT MATTER IN DIFFERENT WAYS WHERE OBVIOUS REASONS DO NOT COMPEL
DIVERGENT TREATMENT IS TO INTRODUCE ANOTHER AND NEEDLESS COMPLEXITY
INTO THIS ALREADY IRKSOME SITUATION."  APPLICATION OF THAT PRINCIPLE
WOULD REQUIRE THE COURT TO HOLD THAT SEC. 503 OF THE REVENUE ACT OF
1932, I.R.C., SEC. 1002, IMPOSES A TAX ON "THE AMOUNT BY WHICH THE
VALUE OF THE PROPERTY (TRANSFERRED EXCEEDS) THE VALUE OF THE
CONSIDERATION" RECEIVED ONLY WHEN THE TRANSFER IS "FOUNDED UPON A
PROMISE OR AGREEMENT."  THE TAXPAYER DOES NOT CONTEST APPLICABILITY OF
THE PRINCIPLE; AND IN THE VIEW WE TAKE OF THE CASE IT MAY BE ASSUMED. 
FN2  TAXPAYER CONTENDS (1) THAT THE TRANSFERS IN THE SITUATION NOW
BEFORE US WERE OR MUST BE DEEMED TO HAVE BEEN FOR AN "ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH," AND (2) THAT THE COMMISSIONER
IMPOSED A LIABILITY WHICH WAS NOT "FOUNDED UPON A PROMISE OR
AGREEMENT."  HER POSITION WAS SUSTAINED BY THE TAX COURT, 10 T.C. 741,
BUT REJECTED BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT.  178 F.2D
861. 

1.  I WOULD ADHERE TO THE VIEWS WE EXPRESSED IN THE WEMYSS AND
MERRILL DECISIONS AS TO THE MEANING TO BE GIVEN TO THE REQUIREMENT OF
"ADEQUATE AND FULL CONSIDERATION" IN THE ENFORCEMENT OF THE GIFT TAX
"IN ORDER TO NARROW THE SCOPE OF TAX EXEMPTIONS."  324 U.S. AT 312. 
NOR WOULD I DEPART FROM THE CONCLUSION THERE REACHED THAT THE
RELINQUISHMENT OF MARITAL RIGHTS IS NOT TO BE DEEMED "MONEY OR MONEY'S
WORTH" BECAUSE THAT DEFINITION IN THE ESTATE TAX OF 1932 IS BY
IMPLICATION TO BE READ INTO THE GIFT TAX PASSED IN THE SAME YEAR. 

2.  BUT WAS THE TRANSFER OF THE PROPERTY HERE IN CONTROVERSY "FOUNDED
UPON A PROMISE OR AGREEMENT"?  THE ANSWER REQUIRES RECITAL OF THE
GOVERNING FACTS OF THE CASE. 

TAXPAYER SEPARATED FROM HER HUSBAND IN AUGUST, 1942, AND SHORTLY
THEREAFTER BROUGHT SUIT IN NEVADA FOR DIVORCE.  ONE WEEK PRIOR TO ENTRY
OF THE DIVORCE DECREE, SHE AND HER HUSBAND ENTERED INTO AN AGREEMENT
"FOR THE PURPOSE OF SETTLING THE RESPECTIVE PROPERTY RIGHTS OF THE
PARTIES HERETO AND OF REMOVING THE SUBJECT MATTER THEREOF FROM THE
FIELD OF LITIGATION."  AFTER PROVIDING FOR THE TRANSFERS OF PROPERTY
AND THE RELEASE OF CLAIMS, THE AGREEMENT RECITED, 

"THIS AGREEMENT SHALL BE SUBMITTED TO THE COURT FOR ITS APPROVAL, BUT
NEVERTHELESS THE COVENANTS IN THIS AGREEMENT SHALL SURVIVE ANY DECREE
OF DIVORCE WHICH MAY BE ENTERED.  IT IS OF THE ESSENCE OF THIS
AGREEMENT THAT THE SETTLEMENT HEREIN PROVIDED FOR SHALL NOT BECOME
OPERATIVE IN ANY MANNER NOR SHALL ANY OF THE RECITALS OR COVENANTS
HEREIN BECOME BINDING UPON EITHER PARTY UNLESS A DECREE OF ABSOLUTE
DIVORCE BETWEEN THE PARTIES SHALL BE ENTERED IN THE PENDING NEVADA
ACTION.  THE SETTLEMENT HEREIN PROVIDED SHALL BECOME IMMEDIATELY
EFFECTIVE AND OPERATIVE IN THE EVENT OF AND UPON THE ENTRY OF A DECREE
OF DIVORCE BETWEEN SAID PARTIES IN SAID PENDING NEVADA ACTION.  THE
PARTIES HERETO, HOWEVER, SHALL PROCEED AS EXPEDITIOUSLY AS POSSIBLE TO
CARRY INTO EFFECT THE COVENANTS HEREIN, WHICH IT IS PROVIDED ARE TO BE
PERFORMED BY EITHER OF THE PARTIES PRIOR TO THE ENTRY OF THE DECREE AS
AFORESAID." 

AFTER A HEARING AT WHICH BOTH PARTIES WERE REPRESENTED, THE COURT
GRANTED THE DIVORCE.  IT FOUND THAT CERTAIN TRANSFERS FROM THE WIFE TO
THE HUSBAND WERE "IN DISCHARGE OF A LEGAL OBLIGATION WHICH, BECAUSE OF
THE MARITAL RELATIONSHIP HAS BEEN IMPOSED" ON HER; AND CONCLUDED THAT
"THE AGREEMENT AND TRUST AGREEMENTS FORMING A PART THEREOF, MADE AND
ENTERED INTO BETWEEN PLAINTIFF AND DEFENDANT UNDER DATE OF FEBRUARY
27TH, 1943 IS ENTITLED TO BE APPROVED."  THE DIVORCE DECREE "APPROVED"
THE AGREEMENT, DIRECTED PERFORMANCE OF TWO OF ITS PARAGRAPHS, AND
DECLARED, 

"NOTWITHSTANDING THE APPROVAL OF SAID AGREEMENT AND THE TRUST
AGREEMENTS FORMING A PART THEREOF BY THE COURT HEREIN, IT IS ORDERED
THAT SAID AGREEMENT AND SAID TRUST AGREEMENTS FORMING A PART THEREOF
SHALL SURVIVE THIS DECREE. 

     .         .   .         .         . 

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT THE DECREE HEREIN
ENTERED IS ABSOLUTE AND FINAL IN ALL RESPECTS AND THE COURT HEREIN
DIVESTS ITSELF OF ALL POWER TO AMEND OR MODIFY THE SAME IN THE FUTURE
WITHOUT THE CONSENT OF BOTH OF THE PARTIES HERETO." 

THE PARTIES EXECUTED THE PROVISIONS OF THE DECREE AND THE AGREEMENT,
AND THE COMMISSIONER ASSESSED THE TAX IN QUESTION ON THE AMOUNT BY
WHICH THE VALUE OF THE PROPERTY TRANSFERRED BY THE WIFE TO HER HUSBAND
EXCEEDED THE VALUE OF THE PROPERTY TRANSFERRED BY HIM TO HER. 

3.  SUCH BEING THE FACTS OF THE CASE, WAS THE TRANSFER BY CORNELIA
HARRIS "FOUNDED UPON A PROMISE OR AGREEMENT"?  THE STATUTE DOES NOT SAY
FOUNDED "SOLELY UPON A PROMISE OR AGREEMENT."  THE STATUTE DOES NOT SAY
THAT THE TAX SHOULD NOT FALL ON "PROPERTY TRANSFERRED UNDER THE TERMS
OF A JUDGMENT OR DECREE OF THE COURT."  NOR IS THE PHRASE "FOUNDED UPON
AGREEMENT" A TECHNICAL TERM HAVING A WELL-KNOWN MEANING EITHER IN LAW
OR IN LITERATURE.  THE QUESTION IS WHETHER THE TRANSFER MADE BY THE
TAXPAYER TO HER HUSBAND WAS, WITHIN THE FAIR MEANING OF THE LANGUAGE,
"FOUNDED" UPON HER AGREEMENT WITH HER HUSBAND.  DID THE NEVADA JUDGE IN
DECREEING THE DIVORCE DESCRIBE WHAT ACTUALLY TOOK PLACE HERE WHEN HE
SAID THAT ON THE "DATE OF FEBRUARY 27, 1943, THE PLAINTIFF AND
DEFENDANT ENTERED INTO AN AGREEMENT AND TRUST AGREEMENTS FORMING A PART
THEREOF, UNDER THE TERMS OF WHICH THE PARTIES SETTLED ALL OBLIGATIONS
ARISING OUT OF THEIR MARRIAGE"? 

THE FACT THAT THE UNDERTAKINGS DEFINED BY THIS AGREEMENT WOULD COME
INTO FORCE ONLY ON THE OCCURRENCE OF A CONDITION, TO WIT, THE ENTERING
OF A DECREE OF DIVORCE, IS APPARENTLY REGARDED AS DECISIVE OF
TAXABILITY.  BUT DOES THIS MAKE ANY REAL DIFFERENCE?  THE TERMS OF THAT
DECREE MIGHT BE DIFFERENT FROM THE TERMS OF THE AGREEMENT; BUT
"NEVERTHELESS THE COVENANTS IN THIS AGREEMENT SHALL SURVIVE ANY DECREE
OF DIVORCE WHICH MAY BE ENTERED."  IF THE DIVORCE COURT HAD DISAPPROVED
THE AGREEMENT AND HAD NOT DECREED THE TRANSFER OF ANY PROPERTY OF THE
WIFE TO HER HUSBAND, IT IS DIFFICULT TO SEE HOW TRANSFERS WHICH SHE
MADE, SOLELY BECAUSE OF THE COMPULSION OF THE AGREEMENT, WOULD BE
EFFECTED BY COURT DECREE AND FOR THAT REASON NOT SUBJECT TO TAX.  THE
CONDITION ON WHICH AN AGREEMENT COMES INTO FORCE DOES NOT SUPPLANT THE
AGREEMENT ANY MORE THAN A DEED IN ESCROW CEASES TO BE A DEED WHEN IT
COMES OUT OF ESCROW.  IN THE WEMYSS AND MERRILL CASES, WOULD THE GIFTS
HAVE BEEN ANY THE LESS FOUNDED UPON AN AGREEMENT IF, AS A CONDITION TO
THE ANTENUPTIAL ARRANGEMENTS IN THOSE CASES, THE CONSENT OF THE PARENTS
OF THE FIANCEE HAD BEEN MADE A CONDITION OF THE MARRIAGE?  NOR CAN
EXCLUDING THE TRANSFERS HERE INVOLVED FROM THE GIFT TAX BE MADE TENABLE
BY RESTING DECISION ON THE NARROWER GROUND THAT TO THE EXTENT THE
DIVORCE DECREE "APPROVED" THE AGREEMENT OR EMBODIED ITS PROVISIONS SO
AS TO MAKE THEM ENFORCEABLE BY CONTEMPT THE TRANSFERS WERE NOT "FOUNDED
UPON" THE AGREEMENT WITHIN THE MEANING OF THE STATUTE.  FN3  IF THE
TAXPAYER HAD BEEN SUED BY HER HUSBAND FOR THE SUMS SHE WAS OBLIGATED TO
TRANSFER TO HIM COULD HE NOT HAVE BROUGHT THE SUIT ON THE CONTRACT? 
FN4  EVEN THOUGH A PROMISE FOR WHICH INADEQUATE CONSIDERATION WAS GIVEN
HAS BEEN REDUCED TO A JUDGMENT, A CLAIM BASED UPON IT HAS BEEN HELD NOT
DEDUCTIBLE FROM THE GROSS ESTATE AND THUS MUST HAVE BEEN DEEMED TO BE
"FOUNDED UPON A PROMISE."  MARKWELL'S ESTATE V. COMMISSIONER, 112 F.2D
253.  IF A TRANSFER DOES NOT CEASE TO BE "FOUNDED UPON A PROMISE" WHEN
THE PROMISE IS MERGED INTO A JUDGMENT, IS NOT A TRANSFER PURSUANT TO AN
AGREEMENT WHICH SURVIVES A RATIFYING DECREE A FORTIORI "FOUNDED UPON"
THAT AGREEMENT? 

JUDGE LEARNED HAND'S TREATMENT OF THIS MATTER IS SO HARD-HEADED AND
CONVINCING THAT IT WOULD BE IDLE TO PARAPHRASE HIS VIEWS. 

"IN SOME JURISDICTIONS CONTRACTS, MADE IN ANTICIPATION OF A DIVORCE,
ARE HELD TO PERSIST EX PROPRIO VIGORE AFTER THE DIVORCE DECREE HAS
INCORPORATED THEIR TERMS, AND HAS ADDED ITS SANCTIONS TO THOSE
AVAILABLE IN CONTRACT.  THAT, FOR EXAMPLE, IS THE LAW OF NEW YORK,
WHERE THE CONTRACT REMAINS OBLIGATORY EVEN AFTER THE COURT HAS MODIFIED
THE ALLOWANCES WHICH IT ORIGINALLY ADOPTED; AND WHERE THE PROMISES WILL
BE THEREAFTER ENFORCED BY EXECUTION AND THE LIKE.  PERHAPS, THAT IS
ALSO THE LAW OF NEVADA, WHICH THE PARTIES PROVIDED SHOULD GOVERN 'ALL
MATTERS AFFECTING THE INTERPRETATION OF THIS AGREEMENT OR THE RIGHTS OF
THE PARTIES.'  BE THAT AS IT MAY, IN THE CASE AT BAR, THE NEVADA DECREE
HAVING DECLARED THAT THE AGREEMENT WAS 'ENTITLED TO BE APPROVED,' THAT
INCLUDED THE PROVISION THAT ITS 'COVENANTS' SHOULD 'SURVIVE' AS WELL AS
ANY OF ITS OTHER STIPULATIONS.  THUS THE PAYMENTS MADE UNDER IT WERE
'FOUNDED' AS MUCH UPON THE 'PROMISE OR AGREEMENT' AS UPON THE DECREE;
INDEED, THEY WERE 'FOUNDED' UPON BOTH; THE PARTIES CHOSE TO SUBMIT
THEMSELVES TO TWO SANCTIONS - CONTEMPT UNDER THE DIVORCE COURT AND
EXECUTION UNDER THE CONTRACT.  THE PAYMENTS WERE THEREFORE SUBJECT TO
THE GIFT TAX."  178 F.2D 861, 865. 

I WOULD AFFIRM THE JUDGMENT. 

FN1  THE MERRILL SETTLEMENT DID NOT INVOLVE RELEASE OF SUPPORT
RIGHTS.  NOR ARE THEY INVOLVED IN THE CASE BEFORE US, FOR THE TRANSFER
HERE SOUGHT TO BE TAXED PASSED TO THE HUSBAND FROM THE WIFE, WHO WAS
UNDER NO OBLIGATION TO SUPPORT HIM.  WE ARE, THEREFORE, NOT CONCERNED
HERE WITH THE COMMISSIONER'S VIEW THAT "TO THE EXTENT THAT THE
TRANSFERS ARE MADE IN SATISFACTION OF SUPPORT RIGHTS THE TRANSFERS ARE
HELD TO BE FOR AN ADEQUATE AND FULL CONSIDERATION."  E.T. 19, 1946-2
CUM. BULL.  166.  SEE 2 PAUL, FEDERAL ESTATE AND GIFT TAXATION, SEC.
16.15.  BUT CF. MEYER'S ESTATE V. COMMISSIONER, 110 F.2D 367; HELVERING
V. UNITED STATES TRUST CO., 111 F.2D 576. 

FN2  WE THEREFORE NEED NOT PASS ON THE SUGGESTION OF THE GOVERNMENT
BRIEF THAT THE ESTATE AND GIFT TAX PROVISIONS SHOULD NOT IN THIS
INSTANCE BE READ IN PARI MATERIA BECAUSE THE INTERPRETATION OF A PHRASE
COMMON TO THE TWO STATUTES IS NOT INVOLVED.  NOR DO WE PASS ON THE
CONTENTION THAT UNDER BOTH GIFT AND ESTATE TAXES LIABILITY IS IMPOSED
ON TRANSFERS AND CLAIMS RESULTING FROM LOSS OF MARITAL RIGHTS EVEN WHEN
NO PROMISE OR AGREEMENT IS INVOLVED.    FN3  THE GROUND ADOPTED FOR
REVERSAL OF THE COURT BELOW IS IMPORTANT TO THE DISPOSITION OF THE
CASE.  ON THE BROADER GROUND APPARENTLY EMPLOYED, NO GIFT TAX IS DUE. 
BUT IF THE NARROWER BASIS BE USED, IT IS PROBABLE THAT SOME LIABILITY
SHOULD BE IMPOSED.  ONE OF THE TRANSFERS REQUIRED BY THE AGREEMENT -
THE WIFE'S ASSUMPTION OF A $47,650 INDEBTEDNESS OF HER HUSBAND - WAS
NOT INCORPORATED INTO THE DIVORCE DECREE AND THEREFORE IS PRESUMABLY
ENFORCEABLE ONLY UNDER THE CONTRACT.  IF ENFORCEABILITY UNDER THE
DECREE IS THE CRITERION, A GIFT TAX IS DUE TO THE EXTENT THIS
INDEBTEDNESS IS REFLECTED IN THE AMOUNT DETERMINED BY THE COMMISSIONER
TO REPRESENT THE VALUE ATTRIBUTABLE TO RELEASE OF MARITAL RIGHTS. 

FN4  IN NONE OF THE TWELVE JURISDICTIONS IN WHICH DECISIONS IN POINT
HAVE BEEN FOUND HAS IT BEEN HELD THAT A SUIT COULD NOT BE BROUGHT ON
THE CONTRACT IN A SITUATION LIKE THAT BEFORE US.  IN FOUR STATES
ACTIONS MAY APPARENTLY BE BROUGHT SUBSEQUENT TO DIVORCE ON PRIOR
SEPARATION AGREEMENTS WHICH ARE CONSTRUED TO CONTEMPLATE SURVIVAL EVEN
THOUGH THE DIVORCE DECREE DIRECTS DIFFERENT PAYMENTS THAN THE
AGREEMENT.  SEE SEUSS V. SCHUKAT, 358 ILL. 27, 36, 192 N.E. 668, 672;
FREEMAN V. SIEVE, 323 MASS. 652, 84 N.E.2D 16; GOLDMAN V. GOLDMAN, 282
N.Y. 296, 301, 26 N.E.2D 265, 267; HOLAHAN V. HOLAHAN, 77 N.Y.S.2D 339;
MOBLEY V. MOBLEY, 221 S.W.2D 565(TEX.  CIV.  APP.).  IN THREE STATES
SUCH SUITS MAY BE BROUGHT AT LEAST WHERE THE DECREE IS NOT INCONSISTENT
WITH THE AGREEMENT AND DOES NOT INDICATE AN INTENTION TO TERMINATE IT.
SEE HEINSOHN V. CHANDLER, 23 DEL. CH. 114, 2 A.2D 120; COE V. COE, 71
A.2D 514(MAINE); ALLEN V. ALLEN, 196 OKLA. 36, 162 P.2D 193.  IN FIVE
OTHERS IT APPEARS THAT ACTIONS ON THE CONTRACT WILL LIE EXCEPT WHEN THE
AGREEMENT IS RECITED IN THE DECREE SO AS TO BE ENFORCEABLE BY CONTEMPT;
BUT IN NONE OF THE CASES REFUSING TO PERMIT A SUIT ON THE CONTRACT DID
THE DECREE OR THE AGREEMENT DIRECT SURVIVAL.  SEE HOUGH V. HOUGH, 26
CAL.2D 605, 160 P.2D 15; MCWILLIAMS V. MCWILLIAMS, 110 COLO. 173, 132
P.2D 966; HERTZ V. HERTZ, 136 MINN. 188, 161 N.W. 402; CORBIN V.
MATHEWS, 129 N.J. EQ. 549, 19 A.2D 633; MENDELSON V. MENDELSON, 123
OHIO ST. 11, 173 N.E. 615.  SEE LINDEY, SEPARATION AGREEMENTS AND ANTE
NUPTIAL CONTRACTS, 389-395; NOTE, CONTROL OF POST-DIVORCE LEVEL OF
SUPPORT BY PRIOR AGREEMENT, 63 HARV. L. REV. 337.  SCHACHT V. SCHACHT,
295 N.Y. 439, 68 N.E.2D 433, RELIED ON BY PETITIONER, HELD ONLY THAT A
DETERMINATION BY THE DIVORCE COURT OF THE FAIRNESS OF A SEPARATION
AGREEMENT WAS RES JUDICATA IN A SUBSEQUENT SUIT TO SET THE AGREEMENT
ASIDE FOR FRAUD.  THE ISSUE DOES NOT APPEAR TO HAVE BEEN DETERMINED IN
NEVADA, WHERE THE AGREEMENT HERE INVOLVED WAS MADE AND THE DIVORCE
ENTERED. 
..END :














SNYDER V. BUCK, 340 U.S. 15 


NO. 64.  ARGUED OCTOBER 18, 1950.  - DECIDED NOVEMBER 13, 1950.  - 85
U.S. APP. D.C. 428, 179 F.2D 466, AFFIRMED. 


1.  IN A SUIT IN A FEDERAL DISTRICT COURT AGAINST RESPONDENT IN HIS
OFFICIAL CAPACITY AS PAYMASTER GENERAL OF THE NAVY, PETITIONER OBTAINED
A JUDGMENT DIRECTING RESPONDENT TO PAY HER THE DEATH GRATUITY PROVIDED
BY 34 U.S.C. SEC. 943 FOR THE WIDOW OF A MEMBER OF THE NAVAL SERVICE. 
AFTER RESPONDENT HAD RETIRED AND HIS SUCCESSOR HAD TAKEN OFFICE, AN
APPEAL WAS TAKEN IN RESPONDENT'S NAME.  SIX MONTHS HAVING ELAPSED SINCE
RESPONDENT'S RETIREMENT WITHOUT ANY EFFORT BEING MADE TO HAVE
RESPONDENT'S SUCCESSOR IN OFFICE SUBSTITUTED AS A PARTY, THE COURT OF
APPEALS RULED THAT THE ACTION HAD ABATED; AND IT VACATED THE JUDGMENT
AND REMANDED THE CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS
THE COMPLAINT.  HELD:  THIS WAS A PROPER APPLICATION OF SEC. 11(A) OF
THE JUDICIARY ACT OF 1925, 43 STAT. 936.  PP. 16-22. 

(A)  SECTION 11(A) OF THE JUDICIARY ACT OF 1925 MADE SURVIVAL OF THE
ACTION DEPENDENT ON A TIMELY SUBSTITUTION.  P. 19. 

(B)  THIS WAS A DECLARED POLICY OF CONGRESS NOT TO BE ALTERED BY AN
AGREEMENT OF THE PARTIES OR BY SOME THEORY OF ESTOPPEL.  P. 19. 

(C)  THE APPLICATION OF SEC. 11(A) DID NOT TURN ON WHETHER THE
JUDGMENT RENDERED PRIOR TO THE DEATH OR RESIGNATION OF THE OFFICIAL WAS
FOR OR AGAINST THE PLAINTIFF.  P. 19. 

(D)  SECTION 11(A) IS NOT LIMITED TO ACTIONS BROUGHT AGAINST
OFFICIALS FOR REMEDIES WHICH COULD NOT BE OBTAINED IN DIRECT SUITS
AGAINST THE UNITED STATES.  P. 20. 

(E)  AN ACTION IS NONETHELESS PENDING WITHIN THE MEANING OF SEC.
11(A) THOUGH AN APPEAL IS BEING SOUGHT - EVEN WHEN, AS IN THIS CASE,
THE APPEAL WAS TAKEN AFTER THE RETIREMENT OF THE OFFICIAL AND THEREFORE
WITHOUT AUTHORITY.  PP. 20-21. 

(F)  SINCE THE SUIT HAD ABATED IN THE DISTRICT COURT, THERE WAS NO
WAY OF SUBSTITUTING THE SUCCESSOR ON REMAND OF THE PRESENT CASE. 
THEREFORE, VACATING THE JUDGMENT OF THE DISTRICT COURT WAS THE PROPER
PROCEDURE FOR THE COURT OF APPEALS.  P. 21. 

2.  SINCE THE ABSENCE OF A NECESSARY PARTY AND THE STATUTORY BARRIER
TO SUBSTITUTION "INVOLVE JURISDICTION," 28 U.S.C. SEC. 2105 DID NOT
PROHIBIT THIS COURT'S REVIEW OF THE RULING BELOW ON ABATEMENT.  PP. 21
22. 

SNYDER V. BUCK, PAYMASTER GENERAL OF THE NAVY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

NO SUBSTITUTION OF PARTIES HAVING BEEN MADE UNDER SEC. 11(A) OF THE
JUDICIARY ACT OF 1925, 43 STAT. 936, WITHIN SIX MONTHS AFTER HIS
RETIREMENT, THE COURT OF APPEALS VACATED A JUDGMENT AGAINST RESPONDENT
IN HIS OFFICIAL CAPACITY OF PAYMASTER GENERAL OF THE NAVY.  85 U.S.
APP. D.C. 428, 179 F.2D 466.  THIS COURT GRANTED CERTIORARI.  339 U.S.
951.  AFFIRMED, P. 22. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER SUED IN THE DISTRICT COURT FOR A DEATH GRATUITY UNDER THE
ACT OF JUNE 4, 1920, 41 STAT. 824, AS AMENDED, 34 U.S.C. SEC. 943,
CLAIMING AS THE WIDOW OF A MEMBER OF THE NAVAL SERVICE.  RESPONDENT,
THE DEFENDANT IN THE SUIT, WAS PAYMASTER GENERAL OF THE NAVY.  THE
RELIEF ASKED WAS MANDAMUS TO COMPEL HIM TO PAY THE WIDOW'S ALLOWANCE. 
THE DISTRICT COURT HELD FOR PETITIONER, ORDERING RESPONDENT TO PAY HER
THE AMOUNT OF THE ALLOWANCE.  75 F.SUPP.  902.  THAT JUDGMENT WAS
ENTERED JANUARY 30, 1948.  ON MARCH 18, 1948, NOTICE OF APPEAL WAS
FILED IN THE NAME OF REAR ADMIRAL W.A. BUCK, PAYMASTER GENERAL OF THE
NAVY.  ON MARCH 1, 1948, HOWEVER, BUCK HAD BEEN RETIRED AND REAR
ADMIRAL EDWIN D. FOSTER HAD SUCCEEDED HIM IN THE OFFICE. 

PROVIDED THAT "  ...  WHERE, DURING THE PENDENCY OF AN ACTION  ...
BROUGHT BY OR AGAINST AN OFFICER OF THE UNITED STATES  ... AND RELATING
TO THE PRESENT OR FUTURE DISCHARGE OF HIS OFFICIAL DUTIES, SUCH OFFICER
DIES, RESIGNS, OR OTHERWISE CEASES TO HOLD SUCH OFFICE, IT SHALL BE
COMPETENT FOR THE COURT WHEREIN THE ACTION, SUIT, OR PROCEEDING IS
PENDING, WHETHER THE COURT BE ONE OF FIRST INSTANCE OR AN APPELLATE
TRIBUNAL, TO PERMIT THE CAUSE TO BE CONTINUED AND MAINTAINED BY OR
AGAINST THE SUCCESSOR IN OFFICE OF SUCH OFFICER, IF WITHIN SIX MONTHS
AFTER HIS DEATH OR SEPARATION FROM THE OFFICE IT BE SATISFACTORILY
SHOWN TO THE COURT THAT THERE IS A SUBSTANTIAL NEED FOR SO CONTINUING
AND MAINTAINING THE CAUSE AND OBTAINING AN ADJUDICATION OF THE
QUESTIONS INVOLVED."  FN1 

NEITHER PARTY MADE ANY EFFORT WITHIN THE SIX MONTHS PERIOD  FN2  TO
HAVE BUCK'S SUCCESSOR IN OFFICE SUBSTITUTED FOR HIM.  THE COURT OF
APPEALS THEREFORE RULED THAT THE ACTION HAD ABATED; IT THEN VACATED THE
JUDGMENT AND REMANDED THE CAUSE TO THE DISTRICT COURT WITH DIRECTIONS
TO DISMISS THE COMPLAINT.  85 U.S. APP. D.C. 428, 179 F.2D 466. 

THE COMPLAINT IN THIS CASE MAKES NO CLAIM AGAINST BUCK PERSONALLY. 
THEREFORE WE PUT TO ONE SIDE CASES SUCH AS PATTON V. BRADY, 184 U.S.
608, DEALING WITH ACTIONS IN ASSUMPSIT AGAINST COLLECTORS FOR TAXES
ERRONEOUSLY COLLECTED.  THE WRIT THAT ISSUED AGAINST BUCK RELATED TO A
DUTY ATTACHING TO THE OFFICE.  THE DUTY EXISTED SO LONG AND ONLY SO
LONG AS THE OFFICE WAS HELD.  WHEN BUCK RETIRED FROM OFFICE, HIS POWER
TO PERFORM CEASED.  HE NO LONGER HAD ANY AUTHORITY OVER DEATH GRATUITY
ALLOWANCES.  MOREOVER, HIS SUCCESSOR MIGHT ON DEMAND RECOGNIZE THE
CLAIM ASSERTED AND DISCHARGE HIS DUTY.  FOR THESE REASONS IT WAS HELD
THAT IN ABSENCE OF A STATUTE AN ACTION AIMED AT COMPELLING AN OFFICIAL
TO DISCHARGE HIS OFFICIAL DUTIES ABATED WHERE THE OFFICIAL DIED OR
RETIRED FROM THE OFFICE.  FN3  SEE SECRETARY V. MCGARRAHAN, 9 WALL. 
298, 313; UNITED STATES V. BOUTWELL, 17 WALL.  604, 607-608; WARNER
VALLEY STOCK CO. V. SMITH, 165 U.S. 28, 31; UNITED STATES EX REL.
BERNARDIN V. BUTTERWORTH, 169 U.S. 600. 

CONGRESS CHANGED THE RULE.  IT PROVIDED BY THE ACT OF FEBRUARY 8,
1899, 30 STAT. 822, THAT NO ACTION BY OR AGAINST A FEDERAL OFFICER IN
HIS OFFICIAL CAPACITY OR IN RELATION TO THE DISCHARGE OF HIS OFFICIAL
DUTIES SHOULD ABATE BECAUSE OF HIS DEATH OR RESIGNATION; AND IT
PROVIDED A PERIOD IN WHICH SUBSTITUTION COULD BE MADE.  FN4  SEE
LECRONE V. MCADOO, 253 U.S. 217; H.R. REP. NO. 960, 55TH CONG., 2D
SESS. 

THE RULE WAS AGAIN CHANGED BY SEC. 11 OF THE JUDICIARY ACT OF 1925. 
THE PROVISION THAT NO ACTION SHOULD ABATE WAS ELIMINATED.  IT WAS
PROVIDED THAT THE ACTION MIGHT BE CONTINUED AGAINST THE SUCCESSOR ON
THE REQUISITE SHOWING WITHIN THE STATED PERIOD.  THE REVISION EFFECTED
A SUBSTANTIAL CHANGE.  THE 1925 ACT MADE SURVIVAL OF THE ACTION
DEPENDENT ON A TIMELY SUBSTITUTION.  DEFENSE SUPPLIES CORP. V. LAWRENCE
CO., 336 U.S. 631, 637-638.  AND SEE EX PARTE LA PRADE, 289 U.S. 444,
456.  THUS, WHERE THERE WAS A FAILURE TO MOVE FOR SUBSTITUTION WITHIN
THE STATUTORY PERIOD, THE JUDGMENT BELOW WAS VACATED AND THE CAUSE WAS
REMANDED WITH DIRECTIONS "TO DISMISS THE CAUSE AS ABATED."  FN5  UNITED
STATES EX REL. CLAUSSEN V. CURRAN, 276 U.S. 590, 591; MATHEUS V. UNITED
STATES EX REL. CUNNINGHAM, 282 U.S. 802.  THIS WAS A DECLARED POLICY OF
CONGRESS NOT TO BE ALTERED BY AN AGREEMENT OF THE PARTIES  FN6  OR BY
SOME THEORY OF ESTOPPEL.  NOR DID THE APPLICATION OF SEC. 11 TURN ON
WHETHER THE JUDGMENT RENDERED PRIOR TO THE DEATH OR RESIGNATION OF THE
OFFICIAL WAS FOR OR AGAINST THE PLAINTIFF.  THE INABILITY OF ONE WHO NO
LONGER HOLDS THE OFFICE TO PERFORM ANY OF THE OFFICIAL DUTIES WOULD
INDEED ONLY BE EMPHASIZED BY THE RENDITION OF THE COERCIVE JUDGMENT. 

IT IS ARGUED THAT SEC. 11 SHOULD BE READ AS COVERING ONLY THOSE
"ACTIONS BROUGHT AGAINST OFFICIALS FOR REMEDIES WHICH COULD NOT BE GOT
IN A DIRECT SUIT AGAINST THE UNITED STATES."  SUCH A READING REQUIRES
MORE THAN A TAILORING OF THE ACT; IT REQUIRES A FULL ALTERATION. 
OF THE UNITED STATES  ...  AND RELATING TO THE PRESENT OR FUTURE
DISCHARGE OF HIS OFFICIAL DUTIES."  MANY ACTIONS AGAINST AN OFFICIAL
RELATING TO THE "DISCHARGE OF HIS OFFICIAL DUTIES" WOULD IN SUBSTANCE
BE SUITS AGAINST THE UNITED STATES.  IF THE RULE OF ABATEMENT AND
SUBSTITUTION IS TO BE ALTERED IN THE MANNER SUGGESTED, THE AMENDING
PROCESS IS AVAILABLE FOR THAT PURPOSE. 

ACTION.  BUT AN ACTION IS NONETHELESS PENDING WITHIN THE MEANING OF THE
HICKS, 66 F.2D 497, 499; UNITED STATES EX REL. TRINLER V. CARUSI, 168
F.2D 1014), AS WAS IMPLICIT IN MATHEUS V. UNITED STATES EX REL.
CUNNINGHAM, SUPRA.  FOR IN THAT CASE A WRIT OF HABEAS CORPUS, DENIED BY
THE DISTRICT COURT, HAD BEEN GRANTED BY THE CIRCUIT COURT OF APPEALS. 
WHILE THE CASE WAS IN THE CIRCUIT COURT OF APPEALS THE TIME EXPIRED FOR
SUBSTITUTING THE SUCCESSOR OF THE CUSTODIAN AGAINST WHOM THE PRISONER
HAD BROUGHT THE ACTION.  YET, AS NOTED ABOVE, THE COURT APPLIED SEC.
11, VACATED THE JUDGMENTS, AND ORDERED THE PROCEEDING DISMISSED AS
ABATED. 

THERE IS A DIFFERENCE IN THE PRESENT CASE BY REASON OF THE FACT THAT
THE APPEAL WAS TAKEN BY BUCK AFTER HIS RETIREMENT AND THEREFORE WITHOUT
AUTHORITY.  THE JUDGMENT CONCERNED THE PERFORMANCE OF OFFICIAL DUTIES
FOR WHICH BUCK WAS NO LONGER RESPONSIBLE.  HENCE HE WAS NOT IN POSITION
TO OBTAIN A REVIEW OF IT.  SEE DAVIS V. PRESTON, 280 U.S. 406.  IN THE
DAVIS CASE THIS COURT DISMISSED A WRIT OF CERTIORARI GRANTED UNDER SUCH
CIRCUMSTANCES.  THE ARGUMENT IS THAT THE COURT OF APPEALS SHOULD HAVE
DONE NO MORE IN THE PRESENT CASE.  THE DIFFERENCE IS THAT THE DAVIS
CASE WAS A SUIT AGAINST THE FEDERAL AGENT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, 35 STAT. 65, IN WHICH A JUDGMENT WAS RENDERED AGAINST
HIM.  AN ACT OF CONGRESS MADE SPECIAL PROVISION FOR SUBSTITUTION IN
THOSE CASES.  FN7  THE COURT, HOWEVER, HELD THAT THIS STATUTE DID NOT
AFFECT IN ANY MANNER THE APPELLATE JURISDICTION OF THIS COURT.  BUT
THAT ACT PRESERVED THOSE JUDGMENTS AGAINST ABATEMENT BY REASON OF THE
DEATH OR RETIREMENT OF THE FEDERAL AGENT AND ALLOWED SUBSTITUTION AT
ANY TIME BEFORE SATISFACTION OF THE JUDGMENT.  THEREFORE, ON REMAND OF
THE CAUSE IN THE DAVIS CASE THE SUCCESSOR FEDERAL AGENT COULD BE
SUBSTITUTED AND THE JUDGMENT ENFORCED AGAINST HIM.  ON REMAND OF THE
PRESENT CAUSE THERE WOULD BE NO WAY OF SUBSTITUTING THE SUCCESSOR, AS
THE SUIT HAD ABATED IN THE DISTRICT COURT.  VACATING THE JUDGMENT OF
THE DISTRICT COURT WAS THEREFORE THE PROPER PROCEDURE. 

NOR IS THERE ANY BARRIER TO OUR REVIEW OF THIS RULING ON ABATEMENT BY
28 U.S.C. SEC. 2105 WHICH PROHIBITS A REVERSAL BY THE COURT OF APPEALS
OR THIS COURT FOR ERROR IN RULING UPON MATTERS IN ABATEMENT "WHICH DO
NOT INVOLVE JURISDICTION."  THE ABSENCE OF A NECESSARY PARTY AND THE
STATUTORY BARRIER TO SUBSTITUTION GO TO JURISDICTION. 

PETITIONER LOSES HER JUDGMENT AND MUST START OVER.  AFFIRMED. 

FN1  RULE 19(4) OF THE RULES OF THIS COURT PROVIDES THAT IN SUCH
CASES "THE MATTER OF ABATEMENT AND SUBSTITUTION IS COVERED BY SECTION
11 OF THE ACT OF FEBRUARY 13, 1925.  UNDER THAT SECTION A SUBSTITUTION
OF THE SUCCESSOR IN OFFICE MAY BE EFFECTED ONLY WHERE A SATISFACTORY
SHOWING IS MADE WITHIN SIX MONTHS AFTER THE DEATH OR SEPARATION FROM
OFFICE." 

FN2  THIS SECTION WAS REPEALED AS OF SEPTEMBER 1, 1948, 62 STAT. 992,
1000.  IT IS ARGUED THAT, SINCE THAT DATE WAS THE DATE ON WHICH THE 6
MONTHS STATUTORY PERIOD FOR SUBSTITUTION IN THIS CASE EXPIRED AND SINCE
THE REPEALING ACT PRESERVED ANY RIGHTS OR LIABILITIES EXISTING UNDER
ANY OF THE REPEALED LAWS (ID., 992), SEC. 11 GOVERNS THIS CASE.  WE
NEED NOT REACH THE EFFECT OF THE REPEALING ACT.  FOR THE COURT OF
APPEALS DURING THE PERIOD MATERIAL TO OUR PROBLEM HAD IN FORCE ITS RULE
28(B) WHICH PROVIDED THAT ABATEMENT AND SUBSTITUTION WERE GOVERNED BY
SEC. 11 OF THE 1925 ACT. 

RULE 25(D), RULES OF CIVIL PROCEDURE, NOW PROVIDES:  "WHEN AN OFFICER
OF THE UNITED STATES, OR OF THE DISTRICT OF COLUMBIA, THE CANAL ZONE, A
TERRITORY, AN INSULAR POSSESSION, A STATE, COUNTY, CITY, OR OTHER
GOVERNMENTAL AGENCY, IS A PARTY TO AN ACTION AND DURING ITS PENDENCY
DIES, RESIGNS, OR OTHERWISE CEASES TO HOLD OFFICE, THE ACTION MAY BE
CONTINUED AND MAINTAINED BY OR AGAINST HIS SUCCESSOR, IF WITHIN 6
MONTHS AFTER THE SUCCESSOR TAKES OFFICE IT IS SATISFACTORILY SHOWN TO
THE COURT THAT THERE IS A SUBSTANTIAL NEED FOR SO CONTINUING AND
MAINTAINING IT.  SUBSTITUTION PURSUANT TO THIS RULE MAY BE MADE WHEN IT
IS SHOWN BY SUPPLEMENTAL PLEADING THAT THE SUCCESSOR OF AN OFFICER
ADOPTS OR CONTINUES OR THREATENS TO ADOPT OR CONTINUE THE ACTION OF HIS
PREDECESSOR IN ENFORCING A LAW AVERRED TO BE IN VIOLATION OF THE
CONSTITUTION OF THE UNITED STATES.  BEFORE A SUBSTITUTION IS MADE, THE
PARTY OR OFFICER TO BE AFFECTED, UNLESS EXPRESSLY ASSENTING THERETO,
SHALL BE GIVEN REASONABLE NOTICE OF THE APPLICATION THEREFOR AND
ACCORDED AN OPPORTUNITY TO OBJECT." 

FN3  AN EXCEPTION WAS A SUIT TO ENFORCE AN OBLIGATION OF THE
CORPORATION OR MUNICIPALITY TO WHICH THE OFFICE WAS ATTACHED.  SEE
THOMPSON V. UNITED STATES, 103 U.S. 480, 483, AS EXPLAINED IN UNITED
STATES EX REL. BERNARDIN V. BUTTERWORTH, SUPRA, P. 603, AND IN MURPHY
V. UTTER, 186 U.S. 95, 101-102. 

FN4  SEE NOTE 5, INFRA. 

FN5  UNDER THE EARLIER ACT THE PASSAGE OF THE PERIOD WITHIN WHICH
SUBSTITUTION COULD BE MADE RESULTED IN THE PROCEEDING BEING "AT AN
END."  LECRONE V. MCADOO, SUPRA, P. 219.  THE PRACTICE OF THIS COURT
WAS THEREFORE TO DISMISS THE WRIT, LEAVING UNDISTURBED THE JUDGMENTS
BELOW.  LECRONE V. MCADOO, SUPRA; UNITED STATES EX REL. WATTIS V. LANE,
255 U.S. 566; PAYNE V. INDUSTRIAL BOARD, 258 U.S. 613; PAYNE V.
STEVENS, 260 U.S. 705. 

FN6  IN UNITED STATES EX REL. CLAUSSEN V. CURRAN, SUPRA, AND MATHEUS
V. UNITED STATES EX REL. CUNNINGHAM, SUPRA, THE SOLICITOR GENERAL HAD
EXPRESSED WILLINGNESS FOR THE SUCCESSOR TO BE SUBSTITUTED THOUGH THE
STATUTORY PERIOD HAD EXPIRED. 

FN7  THE ACT OF MARCH 3, 1923, 42 STAT. 1443, PROVIDED IN PART:
"THAT SECTION 206 OF THE TRANSPORTATION ACT, 1920, IS AMENDED BY ADDING
AT THE END THEREOF TWO NEW SUBDIVISIONS TO READ AS FOLLOWS:  '(H)
ACTIONS, SUITS, PROCEEDINGS, AND REPARATION CLAIMS, OF THE CHARACTER
DESCRIBED IN SUBDIVISION (A), (C), OR (D), PROPERLY COMMENCED WITHIN
THE PERIOD OF LIMITATION PRESCRIBED, AND PENDING AT THE TIME THIS
SUBDIVISION TAKES EFFECT, SHALL NOT ABATE BY REASON OF THE DEATH,
EXPIRATION OF TERM OF OFFICE, RETIREMENT, RESIGNATION, OR REMOVAL FROM
OFFICE OF THE DIRECTOR GENERAL OF RAILROADS OR THE AGENT DESIGNATED
UNDER SUBDIVISION (A), BUT MAY (DESPITE THE PROVISIONS OF THE ACT
ENTITLED "AN ACT TO PREVENT THE ABATEMENT OF CERTAIN ACTIONS," APPROVED
FEBRUARY 8, 1899), BE PROSECUTED TO FINAL JUDGMENT, DECREE, OR AWARD,
SUBSTITUTING AT ANY TIME BEFORE SATISFACTION OF SUCH FINAL JUDGMENT,
DECREE, OR AWARD THE AGENT DESIGNATED BY THE PRESIDENT THEN IN
OFFICE.'" 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE JACKSON JOINS,
DISSENTING. 

NATURAL PROFESSIONAL INTEREST IN TRYING TO DISENTANGLE THE LEGAL
SNARL PRESENTED BY THIS CASE WOULD NOT JUSTIFY ME IN ENLARGING MY
DISSENT FROM THE COURT'S VIEWS.  BUT THE STATE OF THE LAW REGARDING
LITIGATION BROUGHT FORMALLY AGAINST AN OFFICIAL BUT INTRINSICALLY
AGAINST THE GOVERNMENT IS SO COMPOUNDED OF CONFUSION AND
ARTIFICIALITIES THAT AN ANALYSIS DIFFERING FROM THE COURT'S MAY NOT BE
FUTILE.    AT THE OUTSET IT IS DESIRABLE TO DISPEL A MISCONCEPTION
REGARDING THE LEGISLATION ON ABATEMENT OF SUITS IN THE FEDERAL COURTS. 
IN 1899, CONGRESS FOR THE FIRST TIME MADE PROVISION FOR THE CONTINUANCE
OF A SUIT INVOLVING OFFICIAL CONDUCT WHICH ABATED BY A SUCCESSION IN
OFFICE DURING PENDENCY OF THE SUIT.  30 STAT. 822.  BY SEC. 11 OF THE
JUDICIARY ACT OF 1925, CONGRESS AGAIN DEALT WITH THIS PROBLEM.  43
STAT. 936, 941.  THE COURT FINDS THAT THE PROVISION OF THE 1925 ACT
"EFFECTED A SUBSTANTIAL CHANGE."  IT DOES THIS ON THE BASIS OF THE
ANALYSIS OF THE FIRST ENACTMENT MADE IN DEFENSE SUPPLIES CORP. V.
LAWRENCE WAREHOUSE CO., 336 U.S. 631, 637-638.  ACCORDING TO WHAT WAS
THERE SAID, THE ACT OF 1899 HAD A CATEGORICAL COMMAND THAT "NO ACTION
SHALL ABATE," WHICH WAS ELIMINATED IN 1925.  SO TO INTERPRET THE
RELATION BETWEEN THE 1899 AND THE 1925 PROVISIONS IS TO MISREAD
LEGISLATION BY QUOTING OUT OF CONTEXT AND DISREGARDING AUTHORITATIVE
LEGISLATIVE HISTORY. 

SO FAR AS CONCERNS THE LEGAL EFFECT UPON THE PENDENCY OF AN ACTION
DUE TO CHANGE IN THE OCCUPANCY OF AN OFFICE, A READING OF THE
PROVISIONS OF THE 1899 AND 1925 ACTS CAN LEAVE NOT A SHADOW OF DOUBT AS
TO THEIR IDENTITY OF PURPOSE AND PROCEDURE FOR ITS ACCOMPLISHMENT.  THE
DIFFERENCE BETWEEN THE TWO ACTS IS A MATTER OF ENGLISH AND NOT OF LAW. 
IN BOTH, CONGRESS ASSUMED THAT A PROCEEDING BY OR AGAINST AN OFFICER OF
THE UNITED STATES IN RELATION TO HIS OFFICIAL CONDUCT WOULD ABATE
UNLESS WITHIN A TIME CERTAIN THE COURT AUTHORIZED CONTINUANCE OF THE
PROCEEDING BY OR AGAINST THE SUCCESSOR IN OFFICE.  ONLY THE PHRASING OF
THIS RULE DIFFERS.  IN THE 1899 ACT, CONGRESS SAID THAT SUCH AN ACTION
SHALL ABATE UNLESS LEAVE IS GIVEN FOR ITS CONTINUANCE; IN THE 1925 ACT,
CONGRESS SAID THAT UNLESS LEAVE IS GIVEN FOR THE CONTINUANCE OF SUCH A
SUIT IT IS AT AN END.  TO SAY, AS WE SAID IN DEFENSE SUPPLIES CORP. V.
LAWRENCE WAREHOUSE CO., THAT THE 1899 ACT "CATEGORICALLY" PROVIDED THAT
"NO ACTION SHALL ABATE" IS A MUTILATING READING.  THE DOMINANT THOUGHT
OF AN ENACTMENT CONTROLS THE PRIMARY IMPORT OF ISOLATED WORDS.  TO FIND
THAT THE 1925 ACT "ELIMINATED" THIS PROVISION HAS SIGNIFICANCE ONLY IF
WHAT IS MEANT IS THAT CERTAIN WORDS OF THE 1899 ACT WERE "ELIMINATED"
WHILE THE THOUGHT WAS RETAINED.  THE FULL TEXTS OF THE TWO PROVISIONS,
SET FORTH IN THE MARGIN, SPEAK FOR THEMSELVES.  FN1  WHAT EMERGES IS
THAT THE TWO ENACTMENTS HAVE ESSENTIALLY THE SAME FUNCTION REGARDING
THE ABATEMENT AND MECHANISM FOR SECURING SURVIVAL OF AN ACTION BY OR
AGAINST AN OFFICER OF THE UNITED STATES.  THE ONLY DIFFERENCE IS THAT
THE THOUGHT IS EXPRESSED MORE FELICITOUSLY IN THE LATER ENACTMENT, AS
WOULD BE EXPECTED FROM MR. JUSTICE VAN DEVANTER, WHO, AS IS WELL KNOWN,
WAS THE CHIEF DRAFTSMAN OF THE JUDICIARY ACT OF 1925. 

THE RANGE OF THE 1899 ACT WAS CHANGED IN 1925, WHICH MAY HAVE
STIMULATED ITS REDRAFTING.  THE CHANGE CONCERNED NOT IN THE SLIGHTEST
THE LEGAL CONSEQUENCES TO PENDING SUITS WHERE THE OCCUPANCY OF AN
OFFICE OF THE UNITED STATES WAS INVOLVED.  THE ONLY MODIFICATION MADE
BY THE 1925 ACT, APART FROM CUTTING DOWN THE TIME FOR SUBSTITUTION TO
SIX MONTHS FROM TWELVE, WAS TO EXTEND THE ACT OF 1899 SO AS TO PERMIT
THE SUBSTITUTION OF SUCCESSORS OF STATE AND LOCAL OFFICERS AS WELL AS
THOSE OF FEDERAL OFFICIALS.  THE LEGISLATIVE HISTORIES OF THE 1899 AND
1925 ENACTMENTS, CONFIRMING THE FACE OF THE LEGISLATION, DEMONSTRATE
THAT THE TWO ENACTMENTS WERE CONCEIVED FOR THE SAME PURPOSE, WERE
INTENDED TO HAVE THE SAME CONSEQUENCES, AND ARE TO BE GIVEN THE SAME
SIGNIFICANCE, EXCEPTING ONLY THAT THE 1925 ACT EXTENDED THE RANGE OF
APPLICABILITY. 

THE ACT OF 1899 WAS A RESPONSE TO THIS COURT'S SUGGESTION.  SEE
UNITED STATES EX REL. BERNARDIN V. BUTTERWORTH, 169 U.S. 600, 605.  FN2
THIS WAS LIKEWISE TRUE OF THE ACT OF 1925.  SEE IRWIN V. WRIGHT, 258
U.S. 219, 223-224.  FN3  THE OPINION IN THAT CASE WAS RENDERED ON MARCH
20, 1922, BUT WHILE IT WAS IN THE BOSOM OF THE COURT, HAVING BEEN
SUBMITTED ON JANUARY 24, CHIEF JUSTICE TAFT SENT TO SENATOR CUMMINS A
RESUME OF WHAT WAS KNOWN AS THE "JUDGES' BILL," WHICH BECAME THE ACT OF
1925.  AS TO THE MATTER HERE UNDER DISCUSSION, THE CHIEF JUSTICE SAID
THAT THE PROPOSED BILL "EXTENDS THE RIGHT NOW GIVEN BY STATUTE, TO
SUBSTITUTE THE SUCCESSORS OF CERTAIN OFFICERS OF THE UNITED STATES
WHERE THE LATTER HAVE DIED, RESIGNED, OR OTHERWISE VACATED THEIR
OFFICES PENDING SUIT, SO AS TO EMBRACE THE SUCCESSORS OF OFFICERS OF
THE DISTRICT OF COLUMBIA, THE CANAL ZONE, AND THE TERRITORIES AND
INSULAR POSSESSIONS OF THE UNITED STATES, AS WELL AS OF A STATE OR
POLITICAL SUBDIVISION OR AGENCY THEREOF."  CONFIDENTIAL COMMITTEE PRINT
ENTITLED "JURISDICTION OF CIRCUIT COURTS OF APPEALS AND OF THE SUPREME
COURT," SENATE COMMITTEE ON THE JUDICIARY, 67TH CONG., 2D SESS. 4.  THE
FORMULATION OF WHAT WAS THUS SUMMARIZED BY CHIEF JUSTICE TAFT IS THE
PRESENT SEC. 11, AND THAT FORMULATION WAS IN THE JUDGES' BILL FROM THE
TIME IT WAS INTRODUCED IN THE TWO HOUSES BY SENATOR CUMMINS AND
CONGRESSMAN WALSH, RESPECTIVELY, ON FEBRUARY 17, 1922.  FN4 

THE CORRECTNESS OF THE RESULT IN DEFENSE SUPPLIES CORP. V. LAWRENCE
WAREHOUSE CO., SUPRA, DOES NOT DEPEND ON THE MISCONCEIVED RELATION
INDICATED IN ITS OPINION.  BUT IT OUGHT NOT TO FORM A PART OF THE CHAIN
OF REASONING IN DISPOSING OF THIS CASE.  THEREFORE, INSOFAR AS SEC. 11
OF THE ACT OF 1925  FN5  IS RELEVANT TO OUR PRESENT PROBLEM, WE MUST
REJECT THE NOTION THAT, WHILE UNDER THE 1899 ACT SUCH AN ACTION AS
THIS, BROUGHT AGAINST PAYMASTER GENERAL BUCK, "DID NOT ABATE," THE 1925
ACT ELIMINATED THIS "COMMAND." 

THIS BRINGS US TO THE CIRCUMSTANCES OF THE CASE.  THE PETITIONER
CLAIMS TO BE THE LAWFUL WIDOW OF A NAVAL OFFICER.  SHE BROUGHT THIS
ACTION TO RECOVER A DEATH GRATUITY ALLOWANCE, AMOUNTING TO $1,365,
PAYABLE UNDER THE ACT OF JUNE 4, 1920.  41 STAT. 824, AS AMENDED, 34
U.S.C. SEC. 943.  JURISDICTION WAS ALLEGED UNDER THE TUCKER ACT, 24
STAT. 505, AS AMENDED, AND OTHER STATUTES.  NOMINALLY, THE ACTION WAS
FOR MANDAMUS TO COMPEL BUCK, THE PAYMASTER GENERAL OF THE NAVY, TO MAKE
PAYMENT.  THE DISTRICT COURT REFUSED TO GRANT RELIEF BY MANDAMUS, BUT,
IN ACCORDANCE WITH MODERN PRACTICE, GRANTED WHAT IT THOUGHT TO BE THE
PROPER REMEDY.  THE JUDGMENT, AFTER ENJOINING BUCK FROM PERSISTING IN
HIS REFUSAL TO MAKE PAYMENT, CONCLUDED:  "  ...  AND THE DEFENDANT IS
DIRECTED TO PAY THE PLAINTIFF THIRTEEN HUNDRED AND SIXTY-FIVE DOLLARS
($1,365.00) WHICH IS THE AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE
RECEIVED BY THE DECEASED AT THE TIME OF HIS DEATH." 

THE DISTRICT COURT JUDGMENT WAS ENTERED ON JANUARY 30, 1948.  ADMIRAL
BUCK WAS RETIRED AS PAYMASTER GENERAL ON MARCH 1.  NOTICE OF APPEAL
WAS, NEVERTHELESS, FILED IN HIS NAME BY GOVERNMENT ATTORNEYS ON MARCH
18.  THE ISSUE OF ABATEMENT WAS NOT RAISED UNTIL THE GOVERNMENT
ATTORNEY CALLED THE FACT OF BUCK'S RETIREMENT TO THE ATTENTION OF THE
COURT OF APPEALS UPON ORAL ARGUMENT, WHICH OCCURRED AFTER THE SIX-MONTH
PERIOD FOR SUBSTITUTION HAD PASSED.  THE COURT OF APPEALS VACATED THE
JUDGMENT OF THE DISTRICT COURT AND REMANDED WITH DIRECTIONS TO DISMISS
THE COMPLAINT AS ABATED. 

1.  I AGREE WITH THE COURT THAT THIS WAS NOT A PERSONAL ACTION
AGAINST ADMIRAL BUCK, AND THAT THE JUDGMENT WAS NOT AGAINST HIM AS AN
INDIVIDUAL.  THAT SUITS AGAINST A COLLECTOR OF REVENUE FOR ILLEGAL
EXACTIONS UNDER THE REVENUE ACTS ARE DEEMED PERSONAL ACTIONS
ENFORCEABLE AS SUCH AGAINST THE COLLECTOR IS AN ANOMALOUS SITUATION IN
OUR LAW WHICH CALLS FOR ABROGATION INSTEAD OF EXTENSION.  FOR THE
HISTORY OF THESE ACTIONS, SEE CARY V. CURTIS, 3 HOW.  236, AND UNITED
STATES V. NUNNALLY INVESTMENT CO., 316 U.S. 258.  FN6 

2.  THE STARTING POINT, THEN, IS RECOGNITION OF THE FACT THAT THIS
WAS A SUIT TO SECURE A MONEY CLAIM DUE FROM THE UNITED STATES, ENFORCED
AGAINST THE OFFICER WHO WAS THE EFFECTIVE CONDUIT FOR ITS PAYMENT.  IN
SHORT, THIS WAS A REPRESENTATIVE SUIT, AND THE CRUCIAL QUESTION, I
SUBMIT, IS THE REACH OF THE REPRESENTATIVE CHARACTER OF THE SUIT. 

THE INTRINSIC AND NOT MERELY FORMALISTIC ANSWER TO THIS QUESTION IS
OF COURSE ENTANGLED WITH THE DOCTRINE OF SOVEREIGN IMMUNITY FROM
SUITS.  IN SCORES OF CASES THIS COURT HAS HAD TO CONSIDER WHEN A SUIT,
THOUGH NOMINALLY AGAINST ONE HOLDING PUBLIC OFFICE, IS IN FACT A SUIT
AGAINST THE GOVERNMENT AND AS SUCH BARRED BY WANT OF THE SOVEREIGN'S
CONSENT TO BE SUED.  SEE LARSON V. DOMESTIC & FOREIGN COMMERCE CORP.,
337 U.S. 682, APP. 729.  THE SUBJECT, IT HAS BEEN RECOGNIZED, IS NOT
FREE FROM CASUISTRY BECAUSE OF THE NATURAL, EVEN IF UNCONSCIOUS,
PRESSURE TO ESCAPE FROM THE DOCTRINE OF SOVEREIGN IMMUNITY WHICH -
WHATEVER ITS HISTORIC BASIS - IS HARDLY A DOCTRINE BASED UPON MORAL
CONSIDERATIONS.  THE TREND OF DEEP SENTIMENT, REFLECTED BY LEGISLATION
AND ADJUDICATION, HAS LOOKED ASKANCE AT THE DOCTRINE.  SEE KEIFER &
KEIFER V. R.F.C., 306 U.S. 381, 390-392.  IF ASTUTENESS HAS BEEN
EXERCISED TO DENY THE REPRESENTATIVE CHARACTER OF AN OFFICIAL IN ORDER
TO AVOID HIS IDENTIFICATION AS THE SOVEREIGN AD HOC, IT RUNS COUNTER TO
THE RATIONAL ADMINISTRATION OF JUSTICE NOT TO FIND AN OFFICIAL THE
SOVEREIGN AD HOC AND THE SUIT AGAINST HIM, IN EFFECT, A SUIT AGAINST
THE SOVEREIGN WHEN SOVEREIGN IMMUNITY IS NOT CIRCUMSCRIBED THEREBY. 

UNDER THE COURT OF CLAIMS ACT, 12 STAT. 765, AS AMENDED, THE
PLAINTIFF HERE COULD HAVE GONE TO THE COURT OF CLAIMS.  FN7  BY THE ACT
OF MARCH 3, 1887, 24 STAT. 505, AS AMENDED, SHE COULD HAVE BROUGHT SUIT
IN THE DISTRICT COURT.  WHEN THE SOVEREIGN HAS IN FACT GIVEN CONSENT
FORMALLY TO BE SUED AS SUCH ON THE VERY CLAIM AND TO ALLOW, IN THE SAME
COURT AND BY THE SAME PROCEDURE (TRIAL WITHOUT A JURY), PRECISELY THE
SAME RELIEF AS WAS SOUGHT AND OBTAINED AGAINST THE OFFICIAL IN HIS
REPRESENTATIVE CAPACITY, IT WOULD NEEDLESSLY ENTHRONE FORMALITY TO DENY
THE INTRINSIC NATURE OF THE SUIT TO BE A SUIT AGAINST THE SOVEREIGN. 
AND THAT IS THIS SITUATION.  CERTAINLY THOSE CHARGED WITH THE DUTY OF
DEFENDING THE INTERESTS OF THE UNITED STATES SO CONCEIVED IT.  BY
DENOMINATING ADMIRAL BUCK AS "PAYMASTER GENERAL OF THE NAVY" IN HIS
NOTICE OF APPEAL, THE UNITED STATES ATTORNEY RECOGNIZED THAT PAYMASTER
GENERAL BUCK WAS, AS IT WERE, MERELY AN ALIAS FOR THE UNITED STATES,
THE REAL CLIENT OF THE UNITED STATES ATTORNEY.  THE GOVERNMENT, INDEED,
HAS CONSISTENTLY RECOGNIZED THAT JUSTICE DOES NOT CALL FOR ABATEMENT OF
THE SUIT.  BOTH HERE AND BELOW IT HAS DISAVOWED A DESIRE FOR
ABATEMENT.  OF COURSE, IF IT WERE A FIXED RULE OF LAW THAT A SUIT SUCH
AS THIS SHOULD DIE WHEN THE NOMINAL DEFENDANT DIES, THE COURT WOULD
HAVE TO BOW TO IT, HOWEVER HARSH AND FUTILE THE RULE.  IT REQUIRED
LEGISLATION REPRESENTED BY LORD CAMPBELL'S ACT TO MAKE TORT LIABILITY
SURVIVE THE DEATH OF THE VICTIM.  BUT IT IS NOT THE CONTROLLING POLICY
OF THE LAW THAT SUCH ACTIONS DIE UPON CHANGE OF OFFICE-HOLDERS.  THE
POLICY OF THE LAW IS TO THE CONTRARY, EVEN AS TO SUITS WHICH COULD NOT
BE BROUGHT AGAINST THE GOVERNMENT DIRECTLY.  SO ALSO, IT HAS LONG BEEN
THE POLICY OF OUR LAW TO LOOK BEHIND AN OFFICE-HOLDER NOMINALLY A PARTY
LITIGANT IN ORDER TO FIND THAT, FOR ALL PRACTICAL PURPOSES, IT IS A
SUIT AGAINST THE GOVERNMENT AND THEREFORE NOT MAINTAINABLE.  JUSTICE
SHOULD BE EQUALLY OPEN-EYED IN ORDER TO FIND BEHIND THE NOMINAL
OFFICIAL DEFENDANT THE UNITED STATES AS THE REAL DEFENDANT. 

THIS SEEMS TO ME TO BE THE SPIRIT OF THE DECISION IN THOMPSON V.
UNITED STATES, 103 U.S. 480.  TO BE SURE, MR. JUSTICE BRADLEY THERE
DIFFERENTIATED HIS IDENTIFICATION OF AN OFFICER OF A MUNICIPALITY WITH
THE MUNICIPALITY FROM THE SITUATION OF AN OFFICER OF THE UNITED STATES
BECAUSE NORMALLY THE GOVERNMENT COULD NOT BE SUED.  BUT WHEN THE
GOVERNMENT DOES ALLOW ITSELF TO BE SUED FOR THE SAME CAUSE OF ACTION
FOR WHICH SUIT WAS BROUGHT AGAINST HIM WHO FOR THE PURPOSES OF THE
LITIGATION IS THE UNITED STATES, THE REASON FOR THE DIFFERENTIATION
DISAPPEARS. 

THE DIFFERENTIATION REMAINS IN ACTIONS BROUGHT AGAINST OFFICIALS FOR
REMEDIES WHICH COULD NOT BE GOT IN A DIRECT SUIT AGAINST THE UNITED
STATES.  THESE ARE THE SITUATIONS IN WHICH SUBSTITUTION CANNOT COME
INTO PLAY AUTOMATICALLY AND INVOLVE RECOURSE TO THE REMEDIAL
LEGISLATION OF 1899 AND 1925 IN THEIR PRESENT FORM.  THIS GIVES AMPLE
SCOPE TO THE LEGISLATION AND AT THE SAME TIME AVOIDS TREATING
PROCEDURAL REQUIREMENTS AS TYRANNICAL COMMANDS SATISFYING NO OTHER END
EXCEPT STERILE FORMALITY. 

ACCORDINGLY, I WOULD RECOGNIZE THAT THE JUDGMENT OF THE DISTRICT
COURT IS IN EFFECT A MONEY JUDGMENT AGAINST THE UNITED STATES AND WOULD
ALLOW THE GOVERNMENT'S NOTICE OF APPEAL THE FORCE IT WAS INTENDED TO
HAVE AS AN EFFECTIVE INSTRUMENT WHEREBY THE UNITED STATES MIGHT OBTAIN
A REVIEW OF THAT JUDGMENT.  IT WOULD BE NOTHING NOVEL IN THE OBSERVANCE
OF DECOROUS FORM BY COURTS TO NOTE AS A MATTER OF RECORD THAT THE NAME
OF THE PAYMASTER GENERAL OF THE NAVY IS NOW FOX AND TO PROCEED WITH THE
APPEAL ON THAT BASIS.  FN8 

A FINAL QUESTION HAS TO BE FACED - A QUESTION WHICH SHOULD, IN LOGIC,
HAVE BEEN TREATED FIRST, FOR IT CONCERNS THE POWER OF THIS COURT TO
DECIDE THE CASE.  SECTION 2105 OF 28 U.S.C. PROVIDES: "THERE SHALL BE
NO REVERSAL IN THE SUPREME COURT OR A COURT OF APPEALS FOR ERROR IN
RULING UPON MATTERS IN ABATEMENT WHICH DO NOT INVOLVE JURISDICTION."  I
AGREE WITH THE COURT THAT THIS STATUTE IS NOT APPLICABLE, BUT NOT ON
THE GROUND THAT LACK OF SUBSTITUTION IS A QUESTION OF "JURISDICTION." 
IN ABATEMENT, WHICH WAS MADE IN THE TRIAL COURT BEFORE ISSUE WAS JOINED
ON THE MERITS OF THE CASE.  FN9  IT CAN HAVE NO EFFECT UPON A DECISION
BY AN APPELLATE COURT THAT A SUIT HAS ABATED.    FN1  CHAPTER 121 OF
THE LAWS OF 1899, 30 STAT. 822, PROVIDED:  "  ...  THAT NO SUIT,
ACTION, OR OTHER PROCEEDING LAWFULLY COMMENCED BY OR AGAINST THE HEAD
OF ANY DEPARTMENT OR BUREAU OR OTHER OFFICER OF THE UNITED STATES IN
HIS OFFICIAL CAPACITY, OR IN RELATION TO THE DISCHARGE OF HIS OFFICIAL
DUTIES, SHALL ABATE BY REASON OF HIS DEATH, OR THE EXPIRATION OF HIS
TERM OF OFFICE, OR HIS RETIREMENT, OR RESIGNATION, OR REMOVAL FROM
OFFICE, BUT, IN SUCH EVENT, THE COURT, ON MOTION OR SUPPLEMENTAL
PETITION FILED, AT ANY TIME WITHIN TWELVE MONTHS THEREAFTER, SHOWING A
NECESSITY FOR THE SURVIVAL THEREOF TO OBTAIN A SETTLEMENT OF THE
QUESTIONS INVOLVED, MAY ALLOW THE SAME TO BE MAINTAINED BY OR AGAINST
HIS SUCCESSOR IN OFFICE, AND THE COURT MAY MAKE SUCH ORDER AS SHALL BE
EQUITABLE FOR THE PAYMENT OF COSTS." 

PROVIDED: 

"(A)  THAT WHERE, DURING THE PENDENCY OF AN ACTION, SUIT, OR OTHER
PROCEEDING BROUGHT BY OR AGAINST AN OFFICER OF THE UNITED STATES, OR OF
THE DISTRICT OF COLUMBIA, OR THE CANAL ZONE, OR OF A TERRITORY OR AN
INSULAR POSSESSION OF THE UNITED STATES, OR OF A COUNTY, CITY, OR OTHER
GOVERNMENTAL AGENCY OF SUCH TERRITORY OR INSULAR POSSESSION, AND
RELATING TO THE PRESENT OR FUTURE DISCHARGE OF HIS OFFICIAL DUTIES,
SUCH OFFICER DIES, RESIGNS, OR OTHERWISE CEASES TO HOLD SUCH OFFICE, IT
SHALL BE COMPETENT FOR THE COURT WHEREIN THE ACTION, SUIT, OR
PROCEEDING IS PENDING, WHETHER THE COURT BE ONE OF FIRST INSTANCE OR AN
APPELLATE TRIBUNAL, TO PERMIT THE CAUSE TO BE CONTINUED AND MAINTAINED
BY OR AGAINST THE SUCCESSOR IN OFFICE OF SUCH OFFICER, IF WITHIN SIX
MONTHS AFTER HIS DEATH OR SEPARATION FROM THE OFFICE IT BE
SATISFACTORILY SHOWN TO THE COURT THAT THERE IS A SUBSTANTIAL NEED FOR
SO CONTINUING AND MAINTAINING THE CAUSE AND OBTAINING AN ADJUDICATION
OF THE QUESTIONS INVOLVED. 

"(B)  SIMILAR PROCEEDINGS MAY BE HAD AND TAKEN WHERE AN ACTION, SUIT,
OR PROCEEDING BROUGHT BY OR AGAINST AN OFFICER OF A STATE, OR OF A
COUNTY, CITY, OR OTHER GOVERNMENTAL AGENCY OF A STATE, IS PENDING IN A
COURT OF THE UNITED STATES AT THE TIME OF THE OFFICER'S DEATH OR
SEPARATION FROM THE OFFICE. 

"(C)  BEFORE A SUBSTITUTION UNDER THIS SECTION IS MADE, THE PARTY OR
OFFICER TO BE AFFECTED, UNLESS EXPRESSLY CONSENTING THERETO, MUST BE
GIVEN REASONABLE NOTICE OF THE APPLICATION THEREFOR AND ACCORDED AN
OPPORTUNITY TO PRESENT ANY OBJECTION WHICH HE MAY HAVE." 

FN2 "IN VIEW OF THE INCONVENIENCE, OF WHICH THE PRESENT CASE IS A
STRIKING INSTANCE, OCCASIONED BY THIS STATE OF THE LAW, IT WOULD SEEM
DESIRABLE THAT CONGRESS SHOULD PROVIDE FOR THE DIFFICULTY BY ENACTING
THAT, IN THE CASE OF SUITS AGAINST THE HEADS OF DEPARTMENTS ABATING BY
DEATH OR RESIGNATION, IT SHOULD BE LAWFUL FOR THE SUCCESSOR IN OFFICE
TO BE BROUGHT INTO THE CASE BY PETITION, OR SOME OTHER APPROPRIATE
METHOD." 

FN3  "IT MAY NOT BE IMPROPER TO SAY THAT IT WOULD PROMOTE JUSTICE IF
CONGRESS WERE TO ENLARGE THE SCOPE OF THE ACT OF FEBRUARY 8, 1899, SO
AS TO PERMIT THE SUBSTITUTION OF SUCCESSORS FOR STATE OFFICERS SUING OR
SUED IN THE FEDERAL COURTS, WHO CEASE TO BE OFFICERS BY RETIREMENT OR
DEATH, UPON A SUFFICIENT SHOWING IN PROPER CASES.  UNDER THE PRESENT
STATE OF THE LAW, AN IMPORTANT LITIGATION MAY BE BEGUN AND CARRIED
THROUGH TO THIS COURT AFTER MUCH EFFORT AND EXPENSE, ONLY TO END IN
DISMISSAL BECAUSE, IN THE NECESSARY TIME CONSUMED IN REACHING HERE,
STATE OFFICIALS, PARTIES TO THE ACTION, HAVE RETIRED FROM OFFICE.  IT
IS A DEFECT WHICH ONLY LEGISLATION CAN CURE."  CHIEF JUSTICE TAFT USED
IRWIN V. WRIGHT AS AN ILLUSTRATION IN HIS TESTIMONY BEFORE THE HOUSE
JUDICIARY COMMITTEE ON MARCH 30, 1922.  HEARINGS BEFORE HOUSE COMMITTEE
ON THE JUDICIARY ON H.R. 10479, 67TH CONG., 2D SESS. 7. 

FN4 SEE 62 CONG. REC. 2686, 2737.  THE LANGUAGE CONCERNING ABATEMENT
WAS THE SAME IN THE BILLS INTRODUCED IN 1922(S. 3164 AND H.R. 10479,
67TH CONG., 2D SESS.), IN THE BILLS INTRODUCED BY SENATOR CUMMINS AND
CONGRESSMAN GRAHAM, RESPECTIVELY, IN 1924(S. 2060 AND H.R. 8206, 68TH
CONG., 1ST SESS.) AND IN THE STATUTE AS ENACTED, 43 STAT. 936, 941. 

I AM PARTLY RESPONSIBLE FOR THE MISCONCEPTION OF FINDING A
SUBSTANTIVE CHANGE BETWEEN THE SIGNIFICANCE OF THE 1899 ACT AND THE
1925 ACT BECAUSE I JOINED IN DEFENSE SUPPLIES CORP. V. LAWRENCE
WAREHOUSE CO., 336 U.S. 631.  IT IS NOT BY WAY OF EXTENUATING MY
RESPONSIBILITY THAT I DEEM IT PERTINENT TO SUGGEST THAT THE NATURE AND
VOLUME OF THE COURT'S BUSINESS PRECLUDE EXAMINATION OF ALL THE JUDICIAL
AND LEGISLATIVE MATERIALS OF ALL OPINIONS IN WHICH ONE CONCURS.  IN
ORDER THAT THE ENERGIES OF THE COURT MAY BE CONCENTRATED ON THOSE CASES
FOR WHICH ADJUDICATION BY THIS COURT IS INDISPENSABLE, I HAVE BEEN
INSISTENT IN MY VIEW THAT THE COURT SHOULD BE RIGOROUS IN LIMITING THE
CASES WHICH IT WILL ALLOW TO COME HERE.  THAT IT MAY SO CONTROL ITS
BUSINESS, THE CONGRESS, BY THE ACT OF 1925, GAVE THE COURT - FOR ALL
PRACTICAL PURPOSES - A FREE HAND.  SEE EX PARTE PERU, 318 U.S. 578, 602
604. 

FN5  SECTION 11 OF THE 1925 JUDICIARY ACT, 43 STAT. 936, 941, WAS
REPEALED AS OF SEPTEMBER 1, 1948.  62 STAT. 992, 1000.  THE REPEALING
ACT, HOWEVER, PRESERVED ANY RIGHTS OR LIABILITIES EXISTING UNDER THE
LAWS REPEALED.  62 STAT. 869, 992.  SINCE THE SIX-MONTH STATUTORY
PERIOD WITHIN WHICH SUBSTITUTION CAN BE MADE EXPIRED ON SEPTEMBER 1,
1948, THE REPEAL OF SEC. 11 DOES NOT AFFECT THE CASE AT BAR.  ABATEMENT
OF ACTIONS BROUGHT AGAINST OFFICIALS IS NOW GOVERNED, IN THE DISTRICT
COURTS, BY RULE 25(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH
ALSO PROVIDES A SIX-MONTH PERIOD FOR SUBSTITUTION. 

FN6  THE PROBLEMS RAISED BY THE PERSONAL LIABILITY OF COLLECTORS HAVE
NECESSITATED SPECIAL LEGISLATION.  SEE I.R.C., SEC. 3770(B), 26 U.S.C.
SEC. 3770(B), R.S. SEC. 3220, AS AMENDED (AUTHORITY TO REIMBURSE
COLLECTORS), AND I.R.C., SEC. 3772(D), 26 U.S.C. SEC. 3772(D), 56 STAT.
956.  (SUITS AGAINST COLLECTORS ARE TREATED AS SUITS AGAINST THE UNITED
STATES FOR PURPOSES OF RES JUDICATA.) 

FN7  CAMPBELL V. UNITED STATES, 80 CT. CL. 836; HILL V. UNITED
STATES, 68 CT. CL. 740; MAXWELL V. UNITED STATES, 68 CT. CL. 727;
THOMSON V. UNITED STATES, 58 CT. CL. 207; PHILLIPS V. UNITED STATES, 49
CT. CL. 703. 

FN8  DAVIS V. PRESTON, 280 U.S. 406, WAS A SUIT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT OF 1908, 35 STAT. 65, BROUGHT TO RECOVER FOR
THE DEATH OF A RAILROAD EMPLOYEE OCCURRING WHILE THE RAILROAD WAS BEING
OPERATED BY THE DIRECTOR GENERAL.  THE COURT HELD A PETITION FOR
CERTIORARI INEFFECTIVE WHEN TAKEN IN THE NAME OF AN AGENT OF THE
GOVERNMENT WHO HAD RETIRED FROM OFFICE.  A STATUTE THERE APPLICABLE,
HOWEVER, REQUIRED THAT THE UNITED STATES CONDUCT THE LITIGATION IN THE
NAME OF A SPECIAL AGENT.  41 STAT. 461.  THERE IS NO SUCH REQUIREMENT
IN THE CASE AT BAR, FOR SUIT COULD HAVE BEEN BROUGHT AGAINST THE UNITED
STATES ITSELF.  SINCE THIS IS TRUE, THE COURT CAN SCARCELY REFUSE TO
GIVE EFFECT TO THE NOTICE OF APPEAL FILED BY THE GOVERNMENT ATTORNEYS
IN THE NAME OF BUCK AS PAYMASTER GENERAL. 

MR. JUSTICE VAN DEVANTER DISCUSSED ONLY THE EFFECTIVENESS OF THE
APPEAL, FOR THE COURT WAS FACED WITH NO PROBLEM OF ABATEMENT.  CONGRESS
HAD MADE CLEAR ITS POLICY OF PROTECTING SUITORS AGAINST THE PITFALLS OF
ABATEMENT BY PASSING THE WINSLOW ACT, 42 STAT.  1443, TO MAKE CERTAIN
THAT THE 1899 STATUTE WOULD NOT PREVENT RECOVERY FOR PERSONS INJURED OR
KILLED DURING THE GOVERNMENT OPERATION OF THE RAILROADS.  THIS STATUTE
ALLOWED SUBSTITUTION OF A SUCCESSOR AGENT AT "ANY TIME BEFORE
SATISFACTION OF SUCH FINAL JUDGMENT, DECREE, OR AWARD."  THE BROAD
LEGISLATIVE POLICY REFLECTED IN THE WINSLOW ACT POINTS TO A RELIANCE
UPON SUBSTANCE, RATHER THAN FORM, IN THE PRESENT CASE. 

FN9  THE PREDECESSOR SECTION, 28 U.S.C. (1946 ED.)  SEC.  879, R.S.
SEC. 1011, AS AMENDED, PROVIDED: 

"THERE SHALL BE NO REVERSAL IN THE SUPREME COURT OR IN A CIRCUIT
COURT OF APPEALS UPON A WRIT OF ERROR, FOR ERROR IN RULING ANY PLEA IN
ABATEMENT, OTHER THAN A PLEA TO THE JURISDICTION OF THE COURT, OR FOR
ANY ERROR IN FACT." 


"  ...  BUT THERE SHALL BE NO REVERSAL IN EITHER COURT (I.E., THE
CIRCUIT COURT OR SUPREME COURT) ON SUCH WRIT OF ERROR FOR ERROR IN
RULING ANY PLEA IN ABATEMENT, OTHER THAN A PLEA TO THE JURISDICTION OF
THE COURT, OR SUCH PLEA TO A PETITION OR BILL IN EQUITY, AS IS IN THE
NATURE OF A DEMURRER, OR FOR ANY ERROR IN FACT.  ...  " 

THE REVISER'S NOTE TO SEC. 2105 INDICATES THAT "MATTERS IN ABATEMENT"
WAS SUBSTITUTED FOR "PLEA IN ABATEMENT" BECAUSE OF THE CHANGE IN
TERMINOLOGY UNDER THE FEDERAL RULES. 

MR. JUSTICE CLARK, WITH WHOM MR. JUSTICE BLACK CONCURS, DISSENTING. 

SINCE THE DUTY SOUGHT TO BE ENFORCED IN THIS ACTION ATTACHED TO THE
OFFICE OF PAYMASTER GENERAL AND RESTED UPON ADMIRAL BUCK ONLY SO LONG
AS HE HELD THE OFFICE, IT IS CLEAR THAT PETITIONER'S CLAIM IS AGAINST
BUCK IN HIS REPRESENTATIVE CAPACITY, NOT PERSONALLY.  AFTER HIS
RETIREMENT IT WAS NOT WITHIN HIS POWER TO COMPLY WITH THE DISTRICT
COURT'S INJUNCTION, AND THE JUDGMENT CEASED TO BE ENFORCEABLE AGAINST
HIM.  FN1  CONSEQUENTLY BUCK LACKED STANDING TO OBTAIN REVIEW OF THE
JUDGMENT ON APPEAL.  FN2  THUS FAR I AGREE WITH THE CONCLUSIONS OF THE
COURT. 

BUT I THINK THAT WHEN THE ATTORNEY FOR THE GOVERNMENT CALLED TO THE
COURT OF APPEALS' ATTENTION - AFTER THIS SUIT HAD BEEN PENDING THERE
FOR MORE THAN A YEAR - THAT THE APPEAL HAD BEEN TAKEN BY BUCK AFTER HIS
RETIREMENT AND THAT NO APPEAL HAD BEEN PERFECTED BY OR ON BEHALF OF HIS
SUCCESSOR, THE COURT SHOULD HAVE DISMISSED THE APPEAL ON ITS OWN
MOTION.  FN3  THAT IS THE ACTION WHICH THIS COURT TOOK IN DAVIS V.
PRESTON, 280 U.S. 406(1930), WHEN REVIEW HAD BEEN ALLOWED AT THE
INSTANCE OF A FEDERAL OFFICER WHO, IT LATER APPEARED, BECAUSE OF
SEPARATION FROM OFFICE HAD NOT HAD STANDING TO PETITION FOR
CERTIORARI.  A UNANIMOUS COURT DISMISSED THE WRIT AS IMPROVIDENTLY
GRANTED, STATING: 

"A MOTION IS NOW MADE BY ANDREW W. MELLON, AS FEDERAL AGENT, FOR HIS
SUBSTITUTION IN THE PRESENT PROCEEDING IN THE PLACE OF DAVIS.  BUT THE
MOTION MUST BE DENIED.  THE SUCCESSION IN OFFICE, AS NOW APPEARS,
OCCURRED BEFORE THERE WAS ANY EFFORT TO OBTAIN A REVIEW IN THIS COURT. 
AFTER THE SUCCESSION DAVIS WAS COMPLETELY SEPARATED FROM THE OFFICE AND
WITHOUT RIGHT TO INVOKE SUCH A REVIEW  ...  THEREFORE HIS PETITION MUST
BE DISREGARDED.  THE TIME WITHIN WHICH SUCH A REVIEW MAY BE INVOKED IS
LIMITED BY STATUTE AND THAT TIME HAS LONG SINCE EXPIRED.  TO GRANT THE
MOTION IN THESE CIRCUMSTANCES WOULD BE TO PUT ASIDE THE STATUTORY
LIMITATION AND TO SUBJECT THE PARTY PREVAILING IN THE (COURT BELOW) TO
UNCERTAINTY AND VEXATION WHICH THE LIMITATION IS INTENDED TO PREVENT." 
ID. AT 408.  FN4 

THIS COURT NOW CONCLUDES THAT DAVIS V. PRESTON IS INAPPOSITE BECAUSE
IN THAT CASE, UNLIKE THE SITUATION BEFORE US, APPLICABLE LEGISLATION
PREVENTED ABATEMENT OF THE SUIT AGAINST DAVIS FOLLOWING HIS SEPARATION
FROM OFFICE.  BUT THE POINT MADE IN THE DAVIS CASE WAS SIMPLY THAT THE
SUCCESSION IN OFFICE HAD PRECEDED DAVIS' EFFORT TO OBTAIN REVIEW BY
THIS COURT AND PERTINENT STATUTES DID NOT ENABLE THE FORMER FEDERAL
OFFICER TO INVOKE REVIEW OF A JUDGMENT WHICH WAS OF NO LEGAL CONCERN TO
HIM.  AND IN THIS CASE SINCE AN APPEAL WAS NOT PROPERLY TAKEN WITHIN
THE TIME ALLOWED, IT DOES NOT MATTER AT THIS TIME WHETHER THE DISTRICT
COURT JUDGMENT COULD BE ENFORCED BY PLAINTIFF AGAINST BUCK'S SUCCESSOR,
BY SUBSTITUTION OF THE LATTER AS DEFENDANT OR BY OTHER ACTION.  FN5 

IT IS THE DECISION OF THIS COURT THAT THE FAILURE OF THE APPELLEE TO
SUBSTITUTE THE JUDGMENT DEFENDANT'S SUCCESSOR UNDER SEC. 11 OF THE
JUDICIARY ACT OF 1925 EXCUSES THE GOVERNMENT'S PRIOR FAILURE TO PERFECT
A VALID APPEAL FROM A FINAL JUDGMENT AGAINST ONE OF ITS OFFICERS.  IN
SHORT, THE COURT PLACES ON AN APPELLEE THE BURDEN OF CORRECTING HIS
ADVERSARY'S ERROR.  FROM THIS RESULT I DISSENT. 

FN1  CF. COMMISSIONERS V. SELLEW, 99 U.S. 624, 627(1879); UNITED
STATES EX REL. EMANUEL V. JAEGER, 117 F.2D 483, 488(C.A.2D CIR. 1941). 

FN2  DAVIS V. PRESTON, 280 U.S. 406(1930). 

FN3  IN RE MICHIGAN-OHIO BLDG. CORP., 117 F.2D 191(C.A.7TH CIR.
1941); UNITED PORTO RICAN SUGAR CO. V. SALDANA, 80 F.2D 13(C.A. 1ST
CIR. 1935). 

APPEAL FROM THE DISTRICT COURT IN THE INSTANT CASE WAS GOVERNED BY
FEDERAL RULE 73(1946) WHICH PROVIDED AT ALL RELEVANT TIMES AS FOLLOWS: 

"(A)  ...  WHEN AN APPEAL IS PERMITTED BY LAW FROM A DISTRICT COURT
TO A CIRCUIT COURT OF APPEALS THE TIME WITHIN WHICH AN APPEAL MAY BE
TAKEN SHALL BE 30 DAYS FROM THE ENTRY OF THE JUDGMENT APPEALED FROM
UNLESS A SHORTER TIME IS PROVIDED BY LAW, EXCEPT THAT IN ANY ACTION IN
WHICH THE UNITED STATES OR AN OFFICER OR AGENCY THEREOF IS A PARTY THE
TIME AS TO ALL PARTIES SHALL BE 60 DAYS FROM SUCH ENTRY, AND EXCEPT
THAT UPON A SHOWING OF EXCUSABLE NEGLECT BASED ON A FAILURE OF A PARTY
TO LEARN OF THE ENTRY OF THE JUDGMENT THE DISTRICT COURT IN ANY ACTION
MAY EXTEND THE TIME FOR APPEAL NOT EXCEEDING 30 DAYS FROM THE
EXPIRATION OF THE ORIGINAL TIME HEREIN PRESCRIBED.  ... 

"A PARTY MAY APPEAL FROM A JUDGMENT BY FILING WITH THE DISTRICT COURT
A NOTICE OF APPEAL.  FAILURE OF THE APPELLANT TO TAKE ANY OF THE
FURTHER STEPS TO SECURE THE REVIEW OF THE JUDGMENT APPEALED FROM DOES
NOT AFFECT THE VALIDITY OF THE APPEAL  ... 

"(B)  ...  THE NOTICE OF APPEAL SHALL SPECIFY THE PARTIES TAKING THE
APPEAL  ...  "    IT HAS BEEN HELD THAT UNDER FEDERAL RULE 73 TIMELY
AND PROPER NOTICE OF APPEAL GOES TO THE JURISDICTION OF THE COURT OF
APPEALS, UNITED DRUG CO. V. HELVERING, 108 F.2D 637(C.A.2D CIR. 1940);
LAMB V. SHASTA OIL CO., 149 F.2D 729(C.A.5TH CIR. 1945); MARTEN V.
HESS, 176 F.2D 834(C.A.6TH CIR. 1949); TINKOFF V. WEST PUB. CO., 138
F.2D 607(C.A.7TH CIR. 1943); ST. LUKE'S HOSPITAL V. MELIN, 172 F.2D
532(C.A.8TH CIR. 1949); SPENGLER V. HUGHES TOOL CO., 169 F.2D 166(C.A.
10TH CIR. 1948); WALLECK V. HUDSPETH, 128 F.2D 343(C.A. 10TH CIR.
1942); SEE MALONEY V. SPENCER, 170 F.2D 231, 233(C.A.9TH CIR. 1948);
AND THAT THIS REQUIREMENT CANNOT BE DISPENSED WITH BY WAIVER OR CONSENT
OF THE PARTIES.  SEE LAMB V. SHASTA OIL CO., SUPRA, AT 730; MARTEN V.
HESS, SUPRA, AT 835; ST. LUKE'S HOSPITAL V. MELIN, SUPRA, AT 533. 
COMPARE CRUMP V. HILL, 104 F.2D 36(C.A.5TH CIR. 1939) WITH PIASCIK V.
TRADER NAVIGATION CO., 178 F.2D 886(C.A.2D CIR. 1949). 

FN4  ACCORD, NUDELMAN V. GLOBE VARNISH CO., 312 U.S. 690(1941). 

FN5  IT SEEMS THAT PLAINTIFF WOULD NOT BE WITHOUT A REMEDY WHICH
WOULD GIVE LIFE TO HER JUDGMENT OBTAINED IN A COURT OF COMPETENT
JURISDICTION AGAINST A FEDERAL OFFICER WHO AT THE TIME OF JUDGMENT HAD
FULL AUTHORITY IN THE PREMISES.  IN SUNSHINE ANTHRACITE COAL CO. V.
ADKINS, 310 U.S. 381, 402-403(1940), THE COURT SAID:  "THERE IS PRIVITY
BETWEEN OFFICERS OF THE SAME GOVERNMENT SO THAT A JUDGMENT IN A SUIT
BETWEEN A PARTY AND A REPRESENTATIVE OF THE UNITED STATES IS RES
JUDICATA IN RELITIGATION OF THE SAME ISSUE BETWEEN THAT PARTY AND
ANOTHER OFFICER OF THE GOVERNMENT.  SEE TAIT V. WESTERN MARYLAND RY.
CO., 289 U.S. 620.  THE CRUCIAL POINT IS WHETHER OR NOT IN THE EARLIER
LITIGATION THE REPRESENTATIVE OF THE UNITED STATES HAD AUTHORITY TO
REPRESENT ITS INTERESTS IN A FINAL ADJUDICATION OF THE ISSUE IN
CONTROVERSY." 
..END :






















UNITED STATES V. MUNSINGWEAR, 340 U.S. 36 


NOS. 23 AND 24.  ARGUED OCTOBER 18, 1950.  - DECIDED NOVEMBER 13, 1950. 
- 178 F.2D 204, AFFIRMED. 


THE UNITED STATES SUED RESPONDENT FOR ALLEGED VIOLATIONS OF A PRICE
FIXING REGULATION, SEEKING, IN SEPARATE COUNTS, (1) AN INJUNCTION AND
(2) TREBLE DAMAGES.  BY AGREEMENT, THE SECOND COUNT WAS HELD IN
ABEYANCE PENDING TRIAL AND FINAL DETERMINATION OF THE SUIT FOR AN
INJUNCTION.  HOLDING THAT RESPONDENT'S PRICES COMPLIED WITH THE
REGULATION, THE DISTRICT COURT DISMISSED THE COMPLAINT.  WHILE AN
APPEAL WAS PENDING THE COMMODITY INVOLVED WAS DECONTROLLED, AND THE
COURT OF APPEALS DISMISSED THE APPEAL FOR MOOTNESS.  THE UNITED STATES
ACQUIESCED IN THE DISMISSAL AND MADE NO MOTION TO VACATE THE JUDGMENT. 
THE DISTRICT COURT THEN DISMISSED THE ACTION FOR TREBLE DAMAGES ON THE
GROUND THAT THE MATTER WAS RES JUDICATA.  HELD:  THE DISMISSAL IS
SUSTAINED.  PP. 37-41. 

(A)  THE ISSUES AND THE PARTIES BEING THE SAME IN BOTH SUITS, THE
DISTRICT COURT HAVING JURISDICTION BOTH OVER THE PARTIES AND THE
SUBJECT MATTER, AND ITS JUDGMENT IN THE INJUNCTION SUIT REMAINING
UNMODIFIED, THE CASE FALLS SQUARELY WITHIN THE RULE OF RES JUDICATA. 
SOUTHERN PACIFIC R. CO. V. UNITED STATES, 168 U.S. 1.  PP. 37-38. 

(B)  THE DISMISSAL OF THE APPEAL ON THE GROUND OF MOOTNESS AND THE
DEPRIVATION OF THE UNITED STATES OF ANY REVIEW OF THE CASE IN THE COURT
OF APPEALS DOES NOT WARRANT AN EXCEPTION TO THE ESTABLISHED RULE, EVEN
THOUGH THE UNITED STATES HAD A STATUTORY RIGHT TO REVIEW IN THE COURT
OF APPEALS.  PP. 38-41. 

(C)  THE UNITED STATES COULD HAVE PROTECTED ITS RIGHTS BY MOVING IN
THE COURT OF APPEALS TO VACATE THE JUDGMENT BELOW AND REMAND WITH A
DIRECTION TO DISMISS.  HAVING SLEPT ON ITS RIGHTS BY FAILING TO DO SO,
IT CANNOT OBTAIN RELIEF IN THIS COURT.  PP. 39-41. 

UNITED STATES V. MUNSINGWEAR, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

THE COURT OF APPEALS AFFIRMED AN ORDER OF THE DISTRICT COURT
DISMISSING AS RES JUDICATA A SUIT BY THE UNITED STATES FOR VIOLATION OF
A PRICE REGULATION.  178 F.2D 204.  THIS COURT GRANTED CERTIORARI.  339
U.S. 941.  AFFIRMED, P. 41. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES FILED A COMPLAINT ON TWO COUNTS AGAINST THE
RESPONDENT, ALLEGING VIOLATIONS OF A REGULATION FIXING THE MAXIMUM
PRICE OF COMMODITIES WHICH RESPONDENT SOLD.  THE FIRST COUNT PRAYED FOR
AN INJUNCTION, THE SECOND SOUGHT TREBLE DAMAGES.  BY AGREEMENT AND A
PRETRIAL ORDER, THE SECOND COUNT WAS HELD IN ABEYANCE PENDING TRIAL AND
FINAL DETERMINATION OF THE SUIT FOR AN INJUNCTION.  THE SAME PROCEDURE
WAS FOLLOWED AS RESPECTS ANOTHER SUIT FOR TREBLE DAMAGES RAISING THE
SAME ISSUES AND COVERING A LATER PERIOD.  THE DISTRICT COURT HELD THAT
RESPONDENT'S PRICES COMPLIED WITH THE REGULATION.  ACCORDINGLY IT
DISMISSED THE COMPLAINT.  63 F.SUPP.  933.  THE UNITED STATES APPEALED
FROM THAT JUDGMENT TO THE COURT OF APPEALS.  WHILE THE APPEAL WAS
PENDING THE COMMODITY INVOLVED WAS DECONTROLLED.  RESPONDENT THEN MOVED
TO DISMISS THE APPEAL ON THE GROUND THAT THE CASE HAD BECOME MOOT.  THE
COURT OF APPEALS GRANTED THE MOTION AND DISMISSED THE APPEAL FOR
MOOTNESS.  162 F.2D 125. 

RESPONDENT THEN MOVED IN THE DISTRICT COURT TO DISMISS THE TREBLE
DAMAGE ACTIONS ON THE GROUND THAT THE UNREVERSED JUDGMENT OF THE
DISTRICT COURT IN THE INJUNCTION SUIT WAS RES JUDICATA OF THOSE OTHER
ACTIONS.  THIS MOTION WAS GRANTED, THE DISTRICT COURT DIRECTING THE
TREBLE DAMAGE ACTIONS TO BE DISMISSED.  ON APPEAL THE COURT OF APPEALS,
BY A DIVIDED VOTE, AFFIRMED.  178 F.2D 204. 

THE CONTROVERSY IN EACH OF THE SUITS CONCERNED THE PROPER PRICING
FORMULA APPLICABLE TO RESPONDENT'S COMMODITIES UNDER THE MAXIMUM PRICE
REGULATION.  THAT QUESTION WAS IN ISSUE AND DETERMINED IN THE
INJUNCTION SUIT.  THE PARTIES WERE THE SAME BOTH IN THAT SUIT AND IN
THE SUITS FOR TREBLE DAMAGES.  THERE IS NO QUESTION BUT THAT THE
DISTRICT COURT IN THE INJUNCTION SUIT HAD JURISDICTION BOTH OVER THE
PARTIES AND THE SUBJECT MATTER.  AND ITS JUDGMENT REMAINS UNMODIFIED. 
WE START THEN WITH A CASE WHICH FALLS SQUARELY WITHIN THE CLASSIC
STATEMENT OF THE RULE OF RES JUDICATA IN SOUTHERN PACIFIC R. CO. V.
UNITED STATES, 168 U.S. 1, 48-49: 

"THE GENERAL PRINCIPLE ANNOUNCED IN NUMEROUS CASES IS THAT A RIGHT,
QUESTION OR FACT DISTINCTLY PUT IN ISSUE AND DIRECTLY DETERMINED BY A
COURT OF COMPETENT JURISDICTION, AS A GROUND OF RECOVERY, CANNOT BE
DISPUTED IN A SUBSEQUENT SUIT BETWEEN THE SAME PARTIES OR THEIR
PRIVIES; AND EVEN IF THE SECOND SUIT IS FOR A DIFFERENT CAUSE OF
ACTION, THE RIGHT, QUESTION OR FACT ONCE SO DETERMINED MUST, AS BETWEEN
THE SAME PARTIES OR THEIR PRIVIES, BE TAKEN AS CONCLUSIVELY
ESTABLISHED, SO LONG AS THE JUDGMENT IN THE FIRST SUIT REMAINS
UNMODIFIED." 

AND SEE CROMWELL V. COUNTY OF SAC, 94 U.S. 351, 352; COMMISSIONER V.
SUNNEN, 333 U.S. 591, 597-598.  THE QUESTION WHETHER THE RESPONDENT HAD
SOLD THE COMMODITIES IN VIOLATION OF THE FEDERAL REGULATION, HAVING
BEEN DETERMINED IN THE FIRST SUIT, IS THEREFORE LAID AT REST BY A
PRINCIPLE WHICH SEEKS TO BRING LITIGATION TO AN END AND PROMOTE
CERTAINTY IN LEGAL RELATIONS. 

THAT IS THE RESULT UNLESS THE DISMISSAL OF THE APPEAL ON THE GROUND
OF MOOTNESS AND THE DEPRIVATION OF THE UNITED STATES OF ANY REVIEW OF
THE CASE IN THE COURT OF APPEALS WARRANT AN EXCEPTION TO THE
ESTABLISHED RULE. 

THE ABSENCE OF A RIGHT TO APPEAL WAS HELD IN JOHNSON CO. V. WHARTON,
152 U.S. 252, TO MAKE NO DIFFERENCE, THE DETERMINATION IN THE FIRST
SUIT BEING BINDING IN A SECOND SUIT ON A DIFFERENT CLAIM.  PETITIONER
ARGUES THAT THAT CASE IS DISTINGUISHABLE BECAUSE HERE CONGRESS PROVIDED
AN APPEAL.  IT CONTENDS THAT IF THE RIGHT TO APPEAL IS TO BE PROTECTED,
THE RIGORS OF RES JUDICATA MUST BE ALLEVIATED.  CONCEDEDLY THE JUDGMENT
IN THE FIRST SUIT WOULD BE BINDING IN THE SUBSEQUENT ONES IF AN APPEAL,
THOUGH AVAILABLE, HAD NOT BEEN TAKEN OR PERFECTED.  WILSON'S EXECUTOR
V. DEEN, 121 U.S. 525; HUBBELL V. UNITED STATES, 171 U.S. 203.  BUT IT
IS SAID THAT THOSE WHO HAVE BEEN PREVENTED FROM OBTAINING THE REVIEW TO
WHICH THEY ARE ENTITLED SHOULD NOT BE TREATED AS IF THERE HAD BEEN A
REVIEW.  THAT IS THE ARGUMENT.  THE HARDSHIP OF A CONTRARY RULE IS
PRESENTED.  ESTOPPEL IS URGED.  AND AUTHORITIES ARE ADVANCED TO SUPPORT
THE VIEW THAT RES JUDICATA SHOULD NOT APPLY IN THIS SITUATION.  FN1 

BUT WE SEE NO REASON FOR CREATING THE EXCEPTION.  IF THERE IS
HARDSHIP IN THIS CASE, IT WAS PREVENTABLE.  THE ESTABLISHED PRACTICE OF
THE COURT IN DEALING WITH A CIVIL CASE FROM A COURT IN THE FEDERAL
SYSTEM WHICH HAS BECOME MOOT WHILE ON ITS WAY HERE OR PENDING OUR
DECISION ON THE MERITS IS TO REVERSE OR VACATE THE JUDGMENT BELOW AND
REMAND WITH A DIRECTION TO DISMISS.  FN2 THAT WAS SAID IN DUKE POWER
CO. V. GREENWOOD COUNTY, 299 U.S. 259, 267, TO BE "THE DUTY OF THE
APPELLATE COURT."  THAT PROCEDURE CLEARS THE PATH FOR FUTURE
RELITIGATION OF THE ISSUES BETWEEN THE PARTIES AND ELIMINATES A
JUDGMENT, REVIEW OF WHICH WAS PREVENTED THROUGH HAPPENSTANCE.  WHEN
THAT PROCEDURE IS FOLLOWED, THE RIGHTS OF ALL PARTIES ARE PRESERVED;
NONE IS PREJUDICED BY A DECISION WHICH IN THE STATUTORY SCHEME WAS ONLY
PRELIMINARY. 

IN THIS CASE THE UNITED STATES MADE NO MOTION TO VACATE THE
JUDGMENT.  IT ACQUIESCED IN THE DISMISSAL.  IT DID NOT AVAIL ITSELF OF
THE REMEDY IT HAD TO PRESERVE ITS RIGHTS.  DENIAL OF A MOTION TO VACATE
COULD BRING THE CASE HERE.  OUR SUPERVISORY POWER OVER THE JUDGMENTS OF
THE LOWER FEDERAL COURTS IS A BROAD ONE.  SEE 28 U.S.C. SEC. 2106, 62
STAT. 963; UNITED STATES V. HAMBURG-AMERICAN CO., 239 U.S. 466, 478;
WALLING V. REUTER CO., 321 U.S. 671, 676-677.  AS ALREADY INDICATED, IT
IS COMMONLY UTILIZED IN PRECISELY THIS SITUATION TO PREVENT A JUDGMENT,
UNREVIEWABLE BECAUSE OF MOOTNESS, FROM SPAWNING ANY LEGAL
CONSEQUENCES. 

THE CASE IS THEREFORE ONE WHERE THE UNITED STATES, HAVING SLEPT ON
ITS RIGHTS, NOW ASKS US TO DO WHAT BY ORDERLY PROCEDURE IT COULD HAVE
DONE FOR ITSELF.  THE CASE ILLUSTRATES NOT THE HARDSHIP OF RES JUDICATA
BUT THE NEED FOR IT IN PROVIDING TERMINAL POINTS FOR LITIGATION. 
AFFIRMED. 

FN1  SEE GELPI V. TUGWELL, 123 F.2D 377; ALLEGHENY COUNTY V. MARYLAND
CASUALTY CO., 146 F.2D 633; SCOTT, COLLATERAL ESTOPPEL BY JUDGMENT, 56
HARV. L. REV. 1.  RESTATEMENT, JUDGMENTS, SEC. 69(2) READS AS FOLLOWS:
"WHERE A PARTY TO A JUDGMENT CANNOT OBTAIN THE DECISION OF AN APPELLATE
COURT BECAUSE THE MATTER DETERMINED AGAINST HIM IS IMMATERIAL OR MOOT,
THE JUDGMENT IS NOT CONCLUSIVE AGAINST HIM IN A SUBSEQUENT ACTION ON A
DIFFERENT CAUSE OF ACTION." 

FN2  THIS HAS BECOME THE STANDARD DISPOSITION IN FEDERAL CIVIL CASES:
NEW ORLEANS FLOUR INSPECTORS V. GLOVER, 161 U.S. 101, 103, MODIFYING
160 U.S. 170; UNITED STATES V. HAMBURG-AMERICAN CO., 239 U.S. 466;
BERRY V. DAVIS, 242 U.S. 468; UNITED STATES V. AMERICAN-ASIATIC
STEAMSHIP CO., 242 U.S. 537; BOARD OF PUBLIC UTILITY COMMISSIONERS V.
COMPANIA GENERAL DE TABACOS DE FILIPINAS, 249 U.S. 425; COMMERCIAL
CABLE CO. V. BURLESON, 250 U.S. 360; UNITED STATES V. ALASKA STEAMSHIP
CO., 253 U.S. 113; HEITMULLER V. STOKES, 256 U.S. 359; ATHERTON MILLS
V. JOHNSTON, 259 U.S. 13; BROWNLOW V. SCHWARTZ, 261 U.S. 216;
ALEJANDRINO V. QUEZON, 271 U.S. 528; NORWEGIAN NITROGEN CO. V. TARIFF
COMMISSION, 274 U.S. 106; UNITED STATES V. ANCHOR COAL CO., 279 U.S.
812; SPRUNT & SON V. UNITED STATES, 281 U.S. 249; HARGIS V. BRADFORD,
283 U.S. 781; MAHAN V. HUME, 287 U.S. 575; RAILROAD COMMISSION OF TEXAS
V. MACMILLAN, 287 U.S. 576; COYNE V. PROUTY, 289 U.S. 704; FIRST UNION
TRUST & SAVINGS BANK V. CONSUMERS CO., 290 U.S. 585; DANCIGER OIL &
REFINING CO. V. SMITH, 290 U.S. 599; O'RYAN V. MILLS NOVELTY CO., 292
U.S. 609; HAMMOND CLOCK CO. V. SCHIFF, 293 U.S. 529; BRACKEN V. S.E.C.,
299 U.S. 504; LEADER V. APEX HOSIERY CO., 302 U.S. 656; WOODRING V.
CLARKSBURG-COLUMBUS SHORT ROUTE BRIDGE CO., 302 U.S. 658; RETAIL FOOD
CLERKS & MANAGERS UNION V. UNION PREMIER FOOD STORES, 308 U.S. 526;
S.E.C. V. LONG ISLAND LIGHTING CO., 325 U.S. 833; MONTGOMERY WARD & CO.
V. UNITED STATES, 326 U.S. 690; BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN V. TOLEDO, P. & W.R. CO., 332 U.S. 748; S.E.C. V. ENGINEERS
PUBLIC SERVICE CO., 332 U.S. 788; HODGE V. TULSA COUNTY ELECTION BOARD,
335 U.S. 889; S.E.C. V. PHILADELPHIA CO., 337 U.S. 901. 

SO FAR AS FEDERAL CIVIL CASES ARE CONCERNED, THERE ARE BUT FEW
EXCEPTIONS TO THIS PRACTICE IN RECENT YEARS.  SEE CANTOS V. STYER, 329
U.S. 686; UYEKI V. STYER, 329 U.S. 689; PAN AMERICAN AIRWAYS CORP. V.
GRACE & CO., 332 U.S. 827; SCHENLEY DISTILLING CORP. V. ANDERSON, 333
U.S. 878. 

MR. JUSTICE BLACK IS OF THE OPINION THAT RES JUDICATA SHOULD NOT BE
APPLIED UNDER THE CIRCUMSTANCES HERE SHOWN. 
..END :














UNITED STATES V. SANCHEZ, 340 U.S. 42 


NO. 81.  ARGUED OCTOBER 20, 1950.  - DECIDED NOVEMBER 13, 1950.  -
REVERSED. 


1.  THE TAX OF $100 PER OUNCE IMPOSED BY SEC. 2590 OF THE INTERNAL
REVENUE CODE ON TRANSFERORS OF MARIHUANA WHO MAKE TRANSFERS TO
UNREGISTERED TRANSFEREES WITHOUT THE ORDER FORM REQUIRED BY SEC. 2591
AND WITHOUT PAYMENT BY THE TRANSFEREES OF THE TAX IMPOSED BY SEC. 2590
IS A VALID EXERCISE OF THE TAXING POWER OF CONGRESS, NOTWITHSTANDING
ITS COLLATERAL REGULATORY PURPOSE AND EFFECT.  PP. 44-45. 

(A)  A TAX IS NOT INVALID MERELY BECAUSE IT REGULATES, DISCOURAGES OR
DETERS THE ACTIVITIES TAXED; NOR BECAUSE THE REVENUE OBTAINED IS
NEGLIGIBLE OR THE REVENUE PURPOSE IS SECONDARY.  P. 44. 

(B)  A TAX IS NOT INVALID MERELY BECAUSE IT AFFECTS ACTIVITIES WHICH
CONGRESS MIGHT NOT OTHERWISE REGULATE.  P. 44. 

2.  THE TAX LEVIED BY SEC. 2590(A)(2) IS NOT CONDITIONED ON THE
COMMISSION OF A CRIME, AND IT MAY PROPERLY BE TREATED AS A CIVIL RATHER
THAN A CRIMINAL SANCTION.  PP. 45-46. 

(A)  THAT CONGRESS PROVIDED CIVIL PROCEDURE FOR COLLECTION INDICATES
ITS INTENTION THAT THE LEVY BE TREATED AS CIVIL IN CHARACTER.  P. 45. 

(B)  THE CIVIL CHARACTER OF THE TAX OF $100 PER OUNCE IMPOSED BY SEC.
2590(A)(2) IS NOT ALTERED BY ITS SEVERITY IN RELATION TO THE TAX OF $1
PER OUNCE LEVIED BY SEC. 2590(A)(1).  PP. 45-46. 

(C)  THE IMPOSITION BY SEC. 2590(B) OF LIABILITY ON TRANSFERORS IS
REASONABLY ADAPTED TO SECURE PAYMENT OF THE TAX BY TRANSFEREES OR STOP
TRANSFERS TO UNREGISTERED PERSONS, AS WELL AS TO PROVIDE AN ADDITIONAL
SOURCE FROM WHICH THE EXPENSE OF UNEARTHING CLANDESTINE TRANSFERS CAN
BE RECOVERED.  PP. 45-46. 

UNITED STATES V. SANCHEZ ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

THE UNITED STATES BROUGHT SUIT IN THE DISTRICT COURT TO RECOVER TAXES
ALLEGED TO BE DUE UNDER THE MARIHUANA TAX ACT, 50 STAT. 551, NOW 26
U.S.C. SEC. 2590 ET SEQ. DEFENDANTS' MOTION TO DISMISS, ATTACKING THE
CONSTITUTIONALITY OF THE TAX, WAS GRANTED BY THE DISTRICT COURT.  ON
DIRECT APPEAL TO THIS COURT, REVERSED, P. 46. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL, 28 U.S.C. SEC. 1252, FROM DISMISSAL BY THE
DISTRICT COURT OF A SUIT FOR RECOVERY OF $8,701.65 IN TAXES AND
INTEREST ALLEGED TO BE DUE UNDER SEC. 7(A)(2) OF THE MARIHUANA TAX ACT,
50 STAT. 551, NOW SEC. 2590(A)(2) OF THE INTERNAL REVENUE CODE.  26
U.S.C. SEC. 2590(A)(2).  IN THEIR MOTION TO DISMISS, WHICH WAS GRANTED
WITHOUT OPINION, DEFENDANTS ATTACKED THE CONSTITUTIONALITY OF THIS
SUBSECTION ON THE GROUND THAT IT LEVIED A PENALTY, NOT A TAX.  THE
VALIDITY OF THIS LEVY IS THE ISSUE HERE. 

IN ENACTING THE MARIHUANA TAX ACT, THE CONGRESS HAD TWO OBJECTIVES:
"FIRST, THE DEVELOPMENT OF A PLAN OF TAXATION WHICH WILL RAISE REVENUE
AND AT THE SAME TIME RENDER EXTREMELY DIFFICULT THE ACQUISITION OF
MARIHUANA BY PERSONS WHO DESIRE IT FOR ILLICIT USES AND, SECOND, THE
DEVELOPMENT OF AN ADEQUATE MEANS OF PUBLICIZING DEALINGS IN MARIHUANA
IN ORDER TO TAX AND CONTROL THE TRAFFIC EFFECTIVELY."  S. REP. NO. 900,
75TH CONG., 1ST SESS. 3.  TO THE SAME EFFECT, SEE H.R. REP. NO. 792,
75TH CONG., 1ST SESS. 2. 

PURSUANT TO THESE OBJECTIVES, SEC. 3230 OF THE CODE IMPOSES A SPECIAL
TAX RANGING FROM $1 TO $24 ON "EVERY PERSON WHO IMPORTS, MANUFACTURES,
PRODUCES, COMPOUNDS, SELLS, DEALS IN, DISPENSES, PRESCRIBES,
ADMINISTERS, OR GIVES AWAY MARIHUANA."  FOR PURPOSES OF ADMINISTRATION,
SEC. 3231 REQUIRES SUCH PERSONS TO REGISTER AT THE TIME OF THE PAYMENT
OF THE TAX WITH THE COLLECTOR OF THE DISTRICT IN WHICH THEIR BUSINESSES
ARE LOCATED.  THE CODE THEN MAKES IT UNLAWFUL - WITH CERTAIN EXCEPTIONS
NOT PERTINENT HERE - FOR ANY PERSON TO TRANSFER MARIHUANA EXCEPT IN
PURSUANCE OF A WRITTEN ORDER OF THE TRANSFEREE ON A BLANK FORM ISSUED
BY THE SECRETARY OF THE TREASURY.  SEC. 2591.  SECTION 2590 REQUIRES
THE TRANSFEREE AT THE TIME HE APPLIES FOR THE ORDER FORM TO PAY A TAX
ON SUCH TRANSFER OF $1 PER OUNCE OR FRACTION THEREOF IF HE HAS PAID THE
SPECIAL TAX AND REGISTERED, SEC. 2590(A)(1), OR $100 PER OUNCE OR
FRACTION THEREOF IF HE HAS NOT PAID THE SPECIAL TAX AND REGISTERED. 
SEC. 2590(A)(2).  THE TRANSFEROR IS ALSO MADE LIABLE FOR THE TAX SO
IMPOSED, IN THE EVENT THE TRANSFER IS MADE WITHOUT AN ORDER FORM AND
WITHOUT THE PAYMENT OF THE TAX BY THE TRANSFEREE.  SEC. 2590(B). 
DEFENDANTS IN THIS CASE ARE TRANSFERORS. 

IT IS OBVIOUS THAT SEC. 2590, BY IMPOSING A SEVERE BURDEN ON
TRANSFERS TO UNREGISTERED PERSONS, IMPLEMENTS THE CONGRESSIONAL PURPOSE
OF RESTRICTING TRAFFIC IN MARIHUANA TO ACCEPTED INDUSTRIAL AND
MEDICINAL CHANNELS.  HENCE THE ATTACK HERE RESTS ON THE REGULATORY
CHARACTER AND PROHIBITIVE BURDEN OF THE SECTION AS WELL AS THE PENAL
NATURE OF THE IMPOSITION.  BUT DESPITE THE REGULATORY EFFECT AND THE
CLOSE RESEMBLANCE TO A PENALTY, IT DOES NOT FOLLOW THAT THE LEVY IS
INVALID. 

FIRST.  IT IS BEYOND SERIOUS QUESTION THAT A TAX DOES NOT CEASE TO BE
VALID MERELY BECAUSE IT REGULATES, DISCOURAGES, OR EVEN DEFINITELY
DETERS THE ACTIVITIES TAXED.  SONZINSKY V. UNITED STATES, 300 U.S. 506,
513-514(1937).  THE PRINCIPLE APPLIES EVEN THOUGH THE REVENUE OBTAINED
IS OBVIOUSLY NEGLIGIBLE, SONZINSKY V. UNITED STATES, SUPRA, OR THE
REVENUE PURPOSE OF THE TAX MAY BE SECONDARY, HAMPTON & CO. V. UNITED
STATES, 276 U.S. 394(1928).  NOR DOES A TAX STATUTE NECESSARILY FALL
BECAUSE IT TOUCHES ON ACTIVITIES WHICH CONGRESS MIGHT NOT OTHERWISE
REGULATE.  AS WAS POINTED OUT IN MAGNANO CO. V. HAMILTON, 292 U.S. 40,
47(1934): 

"FROM THE BEGINNING OF OUR GOVERNMENT, THE COURTS HAVE SUSTAINED
TAXES ALTHOUGH IMPOSED WITH THE COLLATERAL INTENT OF EFFECTING ULTERIOR
ENDS WHICH, CONSIDERED APART, WERE BEYOND THE CONSTITUTIONAL POWER OF
THE LAWMAKERS TO REALIZE BY LEGISLATION DIRECTLY ADDRESSED TO THEIR
ACCOMPLISHMENT." 

THESE PRINCIPLES ARE CONTROLLING HERE.  THE TAX IN QUESTION IS A
LEGITIMATE EXERCISE OF THE TAXING POWER DESPITE ITS COLLATERAL
REGULATORY PURPOSE AND EFFECT. 

SECOND.  THE TAX LEVIED BY SEC. 2590(A)(2) IS NOT CONDITIONED UPON
THE COMMISSION OF A CRIME.  THE TAX IS ON THE TRANSFER OF MARIHUANA TO
A PERSON WHO HAS NOT PAID THE SPECIAL TAX AND REGISTERED.  SUCH A
TRANSFER IS NOT MADE AN UNLAWFUL ACT UNDER THE STATUTE.  LIABILITY FOR
THE PAYMENT OF THE TAX RESTS PRIMARILY WITH THE TRANSFEREE; BUT IF HE
FAILS TO PAY, THEN THE TRANSFEROR, AS HERE, BECOMES LIABLE.  IT IS THUS
THE FAILURE OF THE TRANSFEREE TO PAY THE TAX THAT GIVES RISE TO THE
LIABILITY OF THE TRANSFEROR.  SINCE HIS TAX LIABILITY DOES NOT IN
EFFECT REST ON CRIMINAL CONDUCT, THE TAX CAN BE PROPERLY CALLED A CIVIL
RATHER THAN A CRIMINAL SANCTION.  THE FACT CONGRESS PROVIDED CIVIL
PROCEDURE FOR COLLECTION INDICATES ITS INTENTION THAT THE TAX BE
TREATED AS SUCH.  HELVERING V. MITCHELL, 303 U.S. 391(1938).  MOREOVER,
THE GOVERNMENT IS SEEKING TO COLLECT THE LEVY BY A JUDICIAL PROCEEDING
WITH ITS ATTENDANT SAFEGUARDS.  COMPARE LIPKE V. LEDERER, 259 U.S.
557(1922); TOVAR V. JARECKI, 173 F.2D 449(C.A.7TH CIR. 1949). 

NOR IS THE CIVIL CHARACTER OF THE TAX IMPOSED BY SEC. 2590(A)(2)
ALTERED BY ITS SEVERITY IN RELATION TO THAT ASSESSED BY SEC.
2590(A)(1).  THE DIFFERENCE HAS A RATIONAL FOUNDATION.  UNREGISTERED
PERSONS ARE NOT LIKELY TO PROCURE THE REQUIRED ORDER FORM PRIOR TO
TRANSFER OR PAY THE REQUIRED TAX.  FREE OF SANCTIONS, DEALERS WOULD BE
PRONE TO ACCOMMODATE SUCH PERSONS IN THEIR UNLAWFUL ACTIVITY.  THE
IMPOSITION OF EQUALLY SEVERE TAX BURDENS ON SUCH TRANSFERORS IS
REASONABLY ADAPTED TO SECURE PAYMENT OF THE TAX BY TRANSFEREES OR STOP
TRANSFERS TO UNREGISTERED PERSONS, AS WELL AS TO PROVIDE AN ADDITIONAL
SOURCE FROM WHICH THE EXPENSE OF UNEARTHING CLANDESTINE TRANSFERS CAN
BE RECOVERED.  CF. HELVERING V. MITCHELL, SUPRA. 

THE JUDGMENT BELOW MUST BE REVERSED AND THE CAUSE REMANDED FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 
..END :















U.S. V. SECURITY TR. & SAV. BK., 340 U.S. 47 


NOS. 10, 11, 12 AND 13.  ARGUED OCTOBER 16, 1950.  - DECIDED NOVEMBER
13, 1950.  - 93 CAL. APP.2D 608, 209 P.2D 657, REVERSED. 


1.  A TAX LIEN OF THE UNITED STATES OBTAINED UNDER 26 U.S.C. SECS.
3670, 3671, 3672, HELD PRIOR IN RIGHT TO AN ATTACHMENT LIEN ON PROPERTY
IN CALIFORNIA OBTAINED UNDER CALIFORNIA CODE OF CIVIL PROCEDURE, SECS.
537, 542(A), WHERE THE FEDERAL TAX LIEN WAS RECORDED SUBSEQUENT TO THE
DATE OF THE ATTACHMENT LIEN BUT BEFORE THE ATTACHING CREDITOR OBTAINED
JUDGMENT.  PP. 48-51. 

2.  THE EFFECT OF A STATE-LAW LIEN IN RELATION TO A PROVISION OF
FEDERAL LAW FOR THE COLLECTION OF DEBTS OWED THE UNITED STATES IS A
FEDERAL QUESTION.  P. 49. 

3.  ALTHOUGH A STATE COURT'S CLASSIFICATION OF A LIEN AS SPECIFIC AND
PERFECTED IS ENTITLED TO WEIGHT, IT IS SUBJECT TO REEXAMINATION BY THIS
COURT.  ON THE OTHER HAND, IF THE STATE COURT ITSELF DESCRIBES THE LIEN
AS INCHOATE, THIS CLASSIFICATION IS PRACTICALLY CONCLUSIVE.  PP. 49
50. 

4.  AS DESCRIBED BY THE HIGHEST COURT OF CALIFORNIA, THE ATTACHMENT
LIEN UNDER THE LAW OF THAT STATE IS CONTINGENT OR INCHOATE.  P. 50. 

5.  PRIORITY IN RIGHT OF FEDERAL TAX LIENS OBTAINED UNDER 26 U.S.C.
SECS. 3670, 3671, 3672, IS NOT DEFEATED BY A CONTINGENT, INCHOATE LIEN
PRIOR IN TIME.  PP. 50-51. 

6.  THE RESULT IN THIS CASE CANNOT BE AFFECTED BY THE DOCTRINE OF
RELATION BACK.  P. 50. 

UNITED STATES V. SECURITY TRUST & SAVINGS BANK, EXECUTOR, ET AL. 

CERTIORARI TO THE DISTRICT COURT OF APPEAL, FOURTH APPELLATE
DISTRICT, OF CALIFORNIA. 

IN FOUR SUITS INVOLVING PARCELS OF LAND IN CALIFORNIA, A STATE COURT
AWARDED A JUDGMENT CREDITOR PRIORITY OVER LIENS OF THE UNITED STATES
FOR TAXES.  THE DISTRICT COURT OF APPEAL AFFIRMED.  93 CAL. APP.2D 608,
209 P.2D 657.  THE STATE SUPREME COURT DECLINED TO HEAR THE CASE.  THIS
COURT GRANTED CERTIORARI.  339 U.S. 947.  REVERSED, P. 51. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED HERE IS WHETHER A TAX LIEN OF THE UNITED
STATES IS PRIOR IN RIGHT TO AN ATTACHMENT LIEN WHERE THE FEDERAL TAX
LIEN WAS RECORDED SUBSEQUENT TO THE DATE OF THE ATTACHMENT LIEN BUT
PRIOR TO THE DATE THE ATTACHING CREDITOR OBTAINED JUDGMENT. 

ON OCTOBER 17, 1946, WILTON M. MORRISON SUED GEORGE AND GENELL
STYLIANO ON AN UNSECURED NOTE.  PURSUANT TO SECS. 537 AND 542 OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE,  FN1  MORRISON PROCURED THE
ATTACHMENT OF FOUR PARCELS OF REAL ESTATE OWNED BY THE STYLIANOS IN SAN
DIEGO COUNTY.  ON APRIL 24, 1947, MORRISON OBTAINED JUDGMENT AND IT WAS
RECORDED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY ON MAY 2,
1947.  MEANWHILE, ON DECEMBER 3, 5, AND 10, 1946, THE UNITED STATES HAD
FILED NOTICES OF FEDERAL TAX LIENS IN THE SAME OFFICE.  FN2 

SUBSEQUENTLY, FOUR SUITS WERE BROUGHT IN THE SUPERIOR COURT OF SAN
DIEGO COUNTY INVOLVING THE FOUR PARCELS OF LAND UPON WHICH MORRISON HAD
PROCURED THE ATTACHMENT.  MORRISON AND THE UNITED STATES WERE MADE
PARTIES DEFENDANT IN EACH OF THESE SUITS.  THE FIRST SUIT WAS BROUGHT
TO QUIET TITLE TO ONE OF THE PARCELS OF REAL ESTATE.  THE STYLIANOS HAD
SOLD THIS PARCEL TO THE PLAINTIFFS OF THE SUIT, WHO PAID THE BALANCE OF
THE PURCHASE PRICE INTO COURT.  THE OTHER THREE SUITS WERE TO FORECLOSE
SEPARATE MORTGAGES ON THE OTHER THREE PARCELS.  THE SUPERIOR COURT
ORDERED THE BALANCE OF THE PURCHASE PRICE AND ANY SURPLUS REMAINING
FROM THE FORECLOSURE SALES AFTER THE MORTGAGEES RECEIVED PAYMENT IN
FULL TO BE APPLIED FIRST IN PAYMENT OF MORRISON'S JUDGMENT LIEN, AND
SECONDLY IN PAYMENT OF ANY FEDERAL TAX LIENS.  FN3 

THE DISTRICT COURT OF APPEAL FOR THE FOURTH APPELLATE DISTRICT
AFFIRMED.  93 CAL. APP.2D 608, 209 P.2D 657.  THE SUPREME COURT OF
CALIFORNIA DECLINED TO HEAR THE CASE, AND WE GRANTED CERTIORARI.  339
U.S. 947.  FN4  THE FOUR CASES WERE CONSOLIDATED BELOW FOR PURPOSES OF
APPEAL, AND MORRISON'S CLAIMS OF PRIORITY WERE TREATED AS A SINGLE
ISSUE.  THEY ARE TREATED HERE IN THE SAME MANNER. 

PLAINTIFF MAY HAVE THE PROPERTY OF THE DEFENDANT ATTACHED AT ANY TIME
"AS SECURITY FOR THE SATISFACTION OF ANY JUDGMENT THAT MAY BE
RECOVERED."  SECTION 542A PROVIDES:  "THE LIEN OF THE ATTACHMENT ON
REAL PROPERTY ATTACHES AND BECOMES EFFECTIVE UPON THE RECORDING OF A
COPY OF THE WRIT, TOGETHER WITH A DESCRIPTION OF THE PROPERTY ATTACHED,
AND A NOTICE THAT IT IS ATTACHED WITH THE COUNTY RECORDER OF THE COUNTY
WHEREIN SAID REAL PROPERTY IS SITUATE  ....  THE ATTACHMENT WHETHER
HERETOFORE LEVIED OR HEREAFTER TO BE LEVIED SHALL BE A LIEN UPON ALL
REAL PROPERTY ATTACHED FOR A PERIOD OF THREE YEARS AFTER THE DATE OF
LEVY UNLESS SOONER RELEASED OR DISCHARGED EITHER AS PROVIDED IN THIS
CHAPTER, OR BY DISMISSAL OF THE ACTION, OR BY THE FILING WITH THE
RECORDER OF AN ABSTRACT OF THE JUDGMENT IN THE ACTION." 

THE EFFECT OF A LIEN IN RELATION TO A PROVISION OF FEDERAL LAW FOR
THE COLLECTION OF DEBTS OWING THE UNITED STATES IS ALWAYS A FEDERAL
QUESTION.  HENCE, ALTHOUGH A STATE COURT'S CLASSIFICATION OF A LIEN AS
SPECIFIC AND PERFECTED IS ENTITLED TO WEIGHT, IT IS SUBJECT TO
REEXAMINATION BY THIS COURT.  ON THE OTHER HAND, IF THE STATE COURT
ITSELF DESCRIBES THE LIEN AS INCHOATE, THIS CLASSIFICATION IS
"PRACTICALLY CONCLUSIVE."  ILLINOIS V. CAMPBELL, 329 U.S. 362, 371. 
THE SUPREME COURT OF CALIFORNIA HAS SO DESCRIBED ITS ATTACHMENT LIEN IN
THE CASE OF PUISSEGUR V. YARBROUGH, 29 CAL.2D 409, 412, 175 P.2D 830,
831, BY STATING THAT, "THE ATTACHING CREDITOR OBTAINS ONLY A POTENTIAL
RIGHT OR A CONTINGENT LIEN  ...."  EXAMINATION OF THE CALIFORNIA
STATUTE SHOWS THAT THE ABOVE IS AN APT DESCRIPTION.  THE ATTACHMENT
LIEN GIVES THE ATTACHMENT CREDITOR NO RIGHT TO PROCEED AGAINST THE
PROPERTY UNLESS HE GETS A JUDGMENT WITHIN THREE YEARS OR WITHIN SUCH
EXTENSION AS THE STATUTE PROVIDES.  NUMEROUS CONTINGENCIES MIGHT ARISE
THAT WOULD PREVENT THE ATTACHMENT LIEN FROM EVER BECOMING PERFECTED BY
A JUDGMENT AWARDED AND RECORDED.  THUS THE ATTACHMENT LIEN IS
CONTINGENT OR INCHOATE - MERELY A LIS PENDENS NOTICE THAT A RIGHT TO
PERFECT A LIEN EXISTS. 

NOR CAN THE DOCTRINE OF RELATION BACK - WHICH BY PROCESS OF JUDICIAL
REASONING MERGES THE ATTACHMENT LIEN IN THE JUDGMENT AND RELATES THE
JUDGMENT LIEN BACK TO THE DATE OF ATTACHMENT - OPERATE TO DESTROY THE
REALITIES OF THE SITUATION.  WHEN THE TAX LIENS OF THE UNITED STATES
WERE RECORDED, MORRISON DID NOT HAVE A JUDGMENT LIEN.  HE HAD A MERE
"CAVEAT OF A MORE PERFECT LIEN TO COME."  NEW YORK V. MACLAY, 288 U.S.
290, 294. 

THE LIENS ASSERTED BY THE UNITED STATES STEM FROM 53 STAT. 448, 449,
26 U.S.C. SECS. 3670, 3671, 3672.  SECTION 3670 PROVIDES:  "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."  SECTION 3671 PROVIDES THAT THE LIEN ARISES
WHEN THE ASSESSMENT LISTS ARE RECEIVED BY THE COLLECTOR UNLESS SOME
OTHER DATE IS SPECIFIED BY LAW.  SECTION 3672 PROVIDES THAT THE LIEN
SHALL NOT BE VALID AGAINST MORTGAGEES, PLEDGEES, PURCHASERS OR JUDGMENT
CREDITORS, UNTIL NOTICE THEREOF HAS BEEN FILED IN THE OFFICE PROVIDED
BY THE LAW OF THE STATE FOR SUCH FILING - IN THIS CASE, THE OFFICE OF
THE RECORDER OF SAN DIEGO COUNTY. 

IN CASES INVOLVING A KINDRED MATTER, I.E., THE FEDERAL PRIORITY UNDER
R.S. SEC. 3466,  FN5  IT HAS NEVER BEEN HELD SUFFICIENT TO DEFEAT THE
FEDERAL PRIORITY MERELY TO SHOW A LIEN EFFECTIVE TO PROTECT THE LIENOR
AGAINST OTHERS THAN THE GOVERNMENT, BUT CONTINGENT UPON TAKING
SUBSEQUENT STEPS FOR ENFORCING IT.  ILLINOIS V. CAMPBELL, SUPRA, 374. 
IF THE PURPOSE OF THE FEDERAL TAX LIEN STATUTE TO INSURE PROMPT AND
CERTAIN COLLECTION OF TAXES DUE THE UNITED STATES FROM TAX DELINQUENTS
IS TO BE FULFILLED, A SIMILAR RULE MUST PREVAIL HERE.  ACCORDINGLY, WE
HOLD THAT THE TAX LIENS OF THE UNITED STATES ARE SUPERIOR TO THE
INCHOATE ATTACHMENT LIEN OF MORRISON, AND THE JUDGMENT OF THE DISTRICT
COURT OF APPEAL FOR THE FOURTH APPELLATE DISTRICT IS REVERSED. 
REVERSED. 

FN1  DEERING'S CAL. CODE CIV. PROC. ANN., 1941, SECS. 537 AND 542. 

FN2  NOTICE OF A FURTHER LIEN IN THE SUM OF $412.18 WAS FILED ON
JANUARY 22, 1948, BUT AS TO THIS THE GOVERNMENT DOES NOT CLAIM
PRIORITY. 

FN3  THE GOVERNMENT ALSO DISCLAIMS ANY PRIORITY OVER THE MORTGAGES
FORECLOSED IN THESE PROCEEDINGS. 

FN4  MORRISON DIED WHILE THE CASE WAS PENDING ON APPEAL TO THE
DISTRICT COURT OF APPEAL, AND THE SECURITY TRUST AND SAVINGS BANK AS
EXECUTOR OF HIS LAST WILL AND TESTAMENT WAS SUBSTITUTED. 

FN5  R.S. SEC. 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." 

MR. JUSTICE JACKSON, CONCURRING. 

I AM PERSUADED THAT WE ARE REQUIRED TO HOLD THE TAX LIEN OF THE
GOVERNMENT SUPERIOR TO THE CALIFORNIA ATTACHMENT.  WHILE WE SHOULD
ACCEPT THE LAW OF CALIFORNIA AS ITS COURT HAS DECLARED IT, THE FEDERAL
QUESTION REMAINS WHETHER IT IS IN CONFLICT WITH 26 U.S.C. SECS. 3670
72, 53 STAT. 448 AS AMENDED, 53 STAT. 882.  THE HISTORY OF THIS TAX
LIEN STATUTE INDICATES THAT ONLY A JUDGMENT CREDITOR IN THE
CONVENTIONAL SENSE IS PROTECTED. 

UNITED STATES V. SNYDER, 149 U.S. 210(1893), WAS DECIDED AT A TIME
WHEN THE FORERUNNER OF THE PRESENT STATUTE, SEC. 3186 OF THE REVISED
STATUTES AS AMENDED BY SEC. 3 OF THE ACT OF MARCH 1, 1879, PROVIDED: 

"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT SHALL BE A LIEN IN FAVOR OF THE UNITED
STATES FROM THE TIME WHEN THE ASSESSMENT-LIST WAS RECEIVED BY THE
COLLECTOR, EXCEPT WHEN OTHERWISE PROVIDED, UNTIL PAID, WITH THE
INTEREST, PENALTIES, AND COSTS THAT MAY ACCRUE IN ADDITION THERETO,
UPON ALL PROPERTY AND RIGHTS TO PROPERTY BELONGING TO SUCH PERSON."  20
STAT. 327, 331. 

THE SNYDER CASE HELD, IN INTERPRETING THE ABOVE STATUTE ALONG WITH
ART. I, SEC. 8 OF THE CONSTITUTION, THAT THE LIEN CREATED BY THAT
STATUTE WAS A VALID BINDING LIEN EVEN AGAINST A BONA FIDE PURCHASER FOR
VALUE WITHOUT KNOWLEDGE OR NOTICE OF THE EXISTENCE OF SUCH A LIEN. 

THEREAFTER THE STATUTE WAS AMENDED AND A PROVISO ADDED WHICH SAID:
"...  THAT SUCH LIEN SHALL NOT BE VALID AS AGAINST ANY MORTGAGEE,
PURCHASER, OR JUDGMENT CREDITOR UNTIL NOTICE OF SUCH LIEN SHALL BE
FILED BY THE COLLECTOR  ...."  IN THE APPROPRIATE PLACE FOR FILING.  37
STAT. 1016.  THE HOUSE REPORT ACCOMPANYING THE PROPOSED AMENDMENT, H.R.
REP. NO. 1018, 62D CONG., 2D SESS. 2(1912), SAID IN PART, AFTER CITING
THE ABOVE CASE: 

"...  THE LIEN IS SO COMPREHENSIVE THAT IT COVERS ALL THE PROPERTY
AND RIGHTS TO PROPERTY OF THE DELINQUENT SITUATED ANYWHERE IN THE
UNITED STATES, AND ANY PERSON TAKING TITLE TO REAL ESTATE IS SUBJECTED
TO THE IMPOSSIBLE TASK OF ASCERTAINING WHETHER ANY PERSON, WHO HAS AT
ANY TIME OWNED THE REAL ESTATE IN QUESTION, HAS BEEN DELINQUENT IN THE
PAYMENT OF THE TAXES REFERRED TO WHILE THE OWNER OF THE REAL ESTATE IN
QUESTION.  THE BUSINESS CARRIED ON UNDER THE INTERNAL-REVENUE LAW MAY
BE AT A GREAT DISTANCE FROM THE PROPERTY AFFECTED BY THIS SECRET LIEN,
BUT THIS WILL NOT RELIEVE THE PROPERTY FROM THE LIEN." 

IN 1938, UNITED STATES V. ROSENFIELD, 26 F.SUPP.  433(D.C.E.D. MICH.,
S.D.), HELD THAT A BONA FIDE PURCHASER FOR VALUE OF SHARES OF STOCK
FROM A SELLER AGAINST WHOM NOTICE OF LIEN FOR FEDERAL INCOME TAXES HAD
BEEN DULY FILED PRIOR TO THE SALE, TOOK SUBJECT TO THE LIEN EVEN THOUGH
THE PURCHASER DID NOT HAVE NOTICE OR KNOWLEDGE OF SUCH LIEN.  AS A
DIRECT RESULT OF THIS DECISION, THE STATUTE WAS AGAIN AMENDED, THIS
TIME TO INCLUDE PLEDGEES AND THE EXCEPTION IN CASE OF SECURITIES AS NOW
FOUND IN 26 U.S.C. SEC. 3672(B)(1).  THE REASON FOR THIS AMENDMENT IS
DISCLOSED IN THE COMMITTEE REPORT ACCOMPANYING THE REVENUE BILL OF
1939.  H.R. REP. NO. 855, 76TH CONG., 1ST SESS. 26(1939).  THIS REPORT
SAYS, IN PART: 

"...  WHILE IT IS TRUE THAT THE FILING OF THE NOTICE OF THE TAX LIEN
MAY CONSTITUTE NOTICE IN THE CASE OF REAL PROPERTY, IT IS INEQUITABLE
FOR THE STATUTE TO PROVIDE THAT IT CONSTITUTES NOTICE AS REGARDS
SECURITIES....  AN ATTEMPT TO ENFORCE SUCH LIENS ON RECORDED NOTICE
WOULD IN MANY CASES IMPAIR THE NEGOTIABILITY OF SECURITIES AND
SERIOUSLY INTERFERE WITH BUSINESS TRANSACTIONS...." 

MY CONCLUSION FROM THIS HISTORY IS THAT THE STATUTE EXCLUDES FROM THE
PROVISIONS OF THIS SECRET LIEN THOSE TYPES OF INTERESTS WHICH IT
SPECIFICALLY INCLUDED IN THE STATUTE AND NO OTHERS. 
..END :









SOUTHERN R. CO. V. MAYFIELD, 340 U.S. 1 


ARGUED OCTOBER 16, 1950.  - DECIDED NOVEMBER 6, 1950.  - 359 MO. 827,
224 S.W.2D 105, JUDGMENT VACATED AND CAUSE REMANDED. 


IN EACH OF TWO SUITS BROUGHT IN A MISSOURI STATE COURT UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT, THE PLAINTIFF WAS NOT A RESIDENT OF
MISSOURI, THE CARRIER WAS A FOREIGN CORPORATION, AND THE ACCIDENT WHICH
GAVE RISE TO THE CLAIM OCCURRED OUTSIDE OF MISSOURI.  THE STATE SUPREME
COURT DETERMINED THAT THE DOCTRINE OF FORUM NON CONVENIENS COULD NOT
BAR THE SUITS; BUT IT WAS NOT CLEAR WHETHER THIS HOLDING WAS BASED ON
LOCAL LAW OR UPON A BELIEF THAT IT WAS REQUIRED BY FEDERAL LAW AS
ENUNCIATED BY THIS COURT.  HELD:  THE JUDGMENT IS VACATED AND THE CAUSE
IS REMANDED, IN ORDER THAT THE STATE SUPREME COURT MAY DETERMINE THE
AVAILABILITY OF THE PRINCIPLE OF FORUM NON CONVENIENS ACCORDING TO ITS
OWN LOCAL LAW.  PP. 2-3, 5. 

(A)  NEITHER BALTIMORE & O.R. CO. V. KEPNER, 314 U.S. 44, NOR MILES
V. ILLINOIS CENTRAL R. CO., 315 U.S. 698, LIMITED THE POWER OF A STATE
TO DENY ACCESS TO ITS COURTS TO PERSONS SEEKING RECOVERY UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT IF IN SIMILAR CASES THE STATE FOR
REASONS OF LOCAL POLICY DENIES RESORT TO ITS COURTS AND ENFORCES ITS
POLICY IMPARTIALLY, SO AS NOT TO INVOLVE A DISCRIMINATION AGAINST
EMPLOYERS' LIABILITY ACT SUITS NOR AGAINST CITIZENS OF OTHER STATES. 
P. 4. 

(B)  NOR IS ANY SUCH RESTRICTION IMPOSED UPON THE STATES MERELY
BECAUSE THE EMPLOYERS' LIABILITY ACT EMPOWERS THEIR COURTS TO ENTERTAIN
SUITS ARISING UNDER IT.  P. 4. 

(C)  EVEN PRIOR TO SEC. 1404(A) OF THE 1948 REVISION OF THE JUDICIAL
CODE (28 U.S.C.), THERE WAS NOTHING IN THE FEDERAL EMPLOYERS' LIABILITY
ACT WHICH PURPORTED "TO FORCE A DUTY" UPON THE STATE COURTS TO
ENTERTAIN OR RETAIN FEDERAL EMPLOYERS' LIABILITY LITIGATION "AGAINST AN
OTHERWISE VALID EXCUSE."  PP. 4-5. 

MISSOURI EX REL. SOUTHERN RAILWAY CO. V. MAYFIELD, CIRCUIT COURT
JUDGE. 

NO. 15.  CERTIORARI TO THE SUPREME COURT OF MISSOURI.* 

*TOGETHER WITH NO. 16, MISSOURI EX REL. ATCHISON, TOPEKA & SANTA FE
RAILWAY CO. V. MURPHY, CIRCUIT COURT JUDGE, ALSO ON CERTIORARI TO THE
SAME COURT. 

IN TWO SUITS BROUGHT IN A MISSOURI STATE COURT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, MOTIONS TO DISMISS UNDER THE DOCTRINE OF
FORUM NON CONVENIENS WERE DENIED AS BEYOND THE JURISDICTION OF THE
COURT TO GRANT.  IN ORIGINAL PROCEEDINGS IN MANDAMUS TO COMPEL THE
TRIAL COURT TO EXERCISE DISCRETIONARY JURISDICTION IN DISPOSING OF THE
MOTIONS, THE STATE SUPREME COURT DENIED RELIEF.  359 MO. 827, 224
S.W.2D 105.  THIS COURT GRANTED CERTIORARI.  339 U.S. 918.  JUDGMENT
VACATED AND CAUSE REMANDED, P. 5. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES HAD THEIR ORIGIN IN SUITS BASED ON THE FEDERAL
EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS AMENDED, 45 U.S.C. SEC. 51 ET
SEQ., BROUGHT IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, MISSOURI. 
IT IS SUPERFLUOUS TO GIVE CONCRETE DETAILS REGARDING THE PARTIES, THE
CIRCUMSTANCES OF THE INJURIES, AND THE CONSIDERATIONS AFFECTING THE
CHOICE OF FORUM.  IT SUFFICES TO STATE THAT IN BOTH CASES THE PLAINTIFF
WAS NOT A RESIDENT OF MISSOURI, THE CARRIER WAS A FOREIGN CORPORATION,
AND THE ACCIDENT WHICH GAVE RISE TO THE CLAIM OF LIABILITY FOR
NEGLIGENCE TOOK PLACE OUTSIDE MISSOURI.  IN BOTH, THE DOCTRINE OF FORUM
NON CONVENIENS WAS INVOKED; IN BOTH, THE TRIAL COURT DENIED THE MOTION
TO DISMISS THE SUIT ON THAT GROUND AS BEYOND THE JURISDICTION OF THE
COURT TO GRANT.  IN BOTH CASES ORIGINAL PROCEEDINGS IN MANDAMUS WERE
THEREUPON BEGUN IN THE SUPREME COURT OF MISSOURI TO COMPEL THE TRIAL
COURT TO EXERCISE DISCRETIONARY JURISDICTION IN DISPOSING OF THE
MOTIONS.  AFTER ALTERNATIVE WRITS OF MANDAMUS HAD ISSUED AND THE CAUSES
HAD BEEN CONSOLIDATED FOR CONSIDERATION, THE WRITS WERE QUASHED BY A
SINGLE JUDGMENT.  359 MO. 827, 224 S.W.2D 105.  WE BROUGHT THE
PROCEEDINGS HERE FOR REVIEW, 339 U.S. 918, BECAUSE THEY INVOLVED
QUESTIONS IMPORTANT TO THE ENFORCEMENT OF THE FEDERAL EMPLOYERS'
LIABILITY ACT BY THE COURTS OF THE STATES. 

A DECISION BY THE HIGHEST COURT OF A STATE DETERMINING THAT THE
DOCTRINE OF FORUM NON CONVENIENS CANNOT BAR AN ACTION BASED ON THE
FEDERAL EMPLOYERS' LIABILITY ACT, IN THE CIRCUMSTANCES BEFORE US, MAY
REST ON ONE OF THREE THEORIES.  (1) ACCORDING TO ITS OWN NOTIONS OF
PROCEDURAL POLICY, A STATE MAY REJECT, AS IT MAY ACCEPT, THE DOCTRINE
FOR ALL CAUSES OF ACTION BEGUN IN ITS COURTS.  IF DENIAL OF A MOTION TO
DISMISS AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IS RESTED
ON SUCH A GENERAL LOCAL PRACTICE, NO FEDERAL ISSUE COMES INTO PLAY. 
(IT IS ASSUMED OF COURSE THAT THE STATE HAS ACQUIRED JURISDICTION OVER
THE DEFENDANT.)(2) BY REASON OF THE PRIVILEGES-AND-IMMUNITIES CLAUSE OF
THE CONSTITUTION, A STATE MAY NOT DISCRIMINATE AGAINST CITIZENS OF
SISTER STATES.  ART. IV, SEC. 2.  THEREFORE MISSOURI CANNOT ALLOW SUITS
BY NON-RESIDENT MISSOURIANS FOR LIABILITY UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT ARISING OUT OF CONDUCT OUTSIDE THAT STATE AND
DISCRIMINATORILY DENY ACCESS TO ITS COURTS TO A NON-RESIDENT WHO IS A
CITIZEN OF ANOTHER STATE.  BUT IF A STATE CHOOSES TO "(PREFER)
RESIDENTS IN ACCESS TO OFTEN OVERCROWDED COURTS" AND TO DENY SUCH
ACCESS TO ALL NON-RESIDENTS, WHETHER ITS OWN CITIZENS OR THOSE OF OTHER
STATES, IT IS A CHOICE WITHIN ITS OWN CONTROL.  THIS IS TRUE ALSO OF
ACTIONS FOR PERSONAL INJURIES UNDER THE EMPLOYERS' LIABILITY ACT. 
DOUGLAS V. NEW YORK, N.H. & H.R. CO., 279 U.S. 377, 387.  WHETHER A
STATE MAKES SUCH A CHOICE IS, LIKE ITS ACCEPTANCE OR REJECTION OF THE
DOCTRINE OF FORUM NON CONVENIENS, A QUESTION OF STATE LAW NOT OPEN TO
REVIEW HERE. 

BUT, (3), A STATE MAY REJECT THE DOCTRINE OF FORUM NON CONVENIENS IN
SUITS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT BECAUSE IT MAY DEEM
ITSELF COMPELLED BY FEDERAL LAW TO REJECT IT.  GIVING THE OPINION OF
THE SUPREME COURT OF MISSOURI IN THESE CASES A SCOPE MOST FAVORABLE TO
RELIANCE ON A NON-FEDERAL GROUND, DOUBT STILL REMAINS WHETHER THAT
COURT DID NOT DEEM ITSELF BOUND TO DENY THE MOTIONS FOR DISMISSAL ON
THE SCORE OF FORUM NON CONVENIENS BY ITS VIEW OF THE DEMANDS OF OUR
DECISIONS IN BALTIMORE & O.R. CO. V. KEPNER, 314 U.S. 44, AND MILES V.
ILLINOIS CENTRAL R. CO., 315 U.S. 698. 

BUT NEITHER OF THESE CASES LIMITED THE POWER OF A STATE TO DENY
ACCESS TO ITS COURTS TO PERSONS SEEKING RECOVERY UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT IF IN SIMILAR CASES THE STATE FOR REASONS OF
LOCAL POLICY DENIES RESORT TO ITS COURTS AND ENFORCES ITS POLICY
IMPARTIALLY, SEE MCKNETT V. ST. LOUIS & S.F.R. CO., 292 U.S. 230, SO AS
NOT TO INVOLVE A DISCRIMINATION AGAINST EMPLOYERS' LIABILITY ACT SUITS
AND NOT TO OFFEND AGAINST THE PRIVILEGES-AND-IMMUNITIES CLAUSE OF THE
CONSTITUTION.  NO SUCH RESTRICTION IS IMPOSED UPON THE STATES MERELY
BECAUSE THE EMPLOYERS' LIABILITY ACT EMPOWERS THEIR COURTS TO ENTERTAIN
SUITS ARISING UNDER IT.  THERE WAS NOTHING IN THAT ACT EVEN PRIOR TO
SEC. 1404(A) OF THE 1948 REVISION OF THE JUDICIAL CODE, TITLE 28,
U.S.C., FN1  WHICH PURPORTED "TO FORCE A DUTY" UPON THE STATE COURTS TO
ENTERTAIN OR RETAIN FEDERAL EMPLOYERS' LIABILITY LITIGATION "AGAINST AN
OTHERWISE VALID EXCUSE."  DOUGLAS V. NEW YORK, N.H. & H.R. CO., SUPRA,
AT 388. 

THEREFORE, IF THE SUPREME COURT OF MISSOURI HELD AS IT DID BECAUSE IT
FELT UNDER COMPULSION OF FEDERAL LAW AS ENUNCIATED BY THIS COURT SO TO
HOLD, IT SHOULD BE RELIEVED OF THAT COMPULSION.  IT SHOULD BE FREED TO
DECIDE THE AVAILABILITY OF THE PRINCIPLE OF FORUM NON CONVENIENS IN
THESE SUITS ACCORDING TO ITS OWN LOCAL LAW.  TO THAT END WE VACATE THE
JUDGMENT OF THE SUPREME COURT OF MISSOURI AND REMAND THE CAUSE TO THAT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
STATE TAX COMM'N V. VAN COTT, 306 U.S. 511; MINNESOTA V. NATIONAL TEA
CO., 309 U.S. 551; HERB V. PITCAIRN, 324 U.S. 117; 325 U.S. 77. 
JUDGMENT VACATED. 

FN1  SECTION 1404(A) READS, "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."  SEE EX PARTE COLLETT, 337 U.S. 55. 

MR. JUSTICE JACKSON, CONCURRING. 

THE MISSOURI COURT APPEARS TO HAVE ACTED UNDER THE SUPPOSED
COMPULSION OF MILES V. ILLINOIS CENTRAL R. CO., 315 U.S. 698, AMONG
OTHER OF THIS COURT'S DECISIONS.  THE DECIDING VOTE IN THAT CASE
RESTED, IN TURN, ONLY ON WHAT SEEMED TO BE COMPULSION OF STATUTORY
PROVISIONS AS TO VENUE.  BY AMENDMENT, 28 U.S.C. SEC. 1404(A), AS
INTERPRETED IN EX PARTE COLLETT, 337 U.S. 55, CONGRESS HAS REMOVED THE
COMPULSION WHICH DETERMINED THE MILES CASE, AND THE MISSOURI COURT
SHOULD NO LONGER REGARD IT AS CONTROLLING.  A FEDERAL COURT IN MISSOURI
WOULD NOW BE FREE TO DECLINE TO HEAR THIS CASE AND COULD TRANSFER IT TO
ITS PROPER FORUM.  CERTAINLY A STATE IS UNDER NO OBLIGATION TO PROVIDE
A COURT FOR TWO NONRESIDENT PARTIES TO LITIGATE A FOREIGN-BORN CAUSE OF
ACTION WHEN THE FEDERAL GOVERNMENT, WHICH CREATES THE CAUSE OF ACTION,
FREES ITS OWN COURTS WITHIN THAT STATE FROM MANDATORY CONSIDERATION OF
THE SAME CASE.  BECAUSE OF WHAT I WROTE IN THE MILES CASE I ADD THIS
NOTE, BUT OTHERWISE CONCUR IN THE DECISION AND OPINION OF THE COURT. 

MR. JUSTICE CLARK, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE DOUGLAS CONCUR, DISSENTING. 

IN MILES V. ILLINOIS CENTRAL R. CO., 315 U.S. 698(1942), THIS COURT
DEFINED THE CIRCUMSTANCES UNDER WHICH A STATE MUST ENTERTAIN IN ITS
COURTS AN F.E.L.A. ACTION BROUGHT BY A CITIZEN OF ANOTHER STATE.  THE
COURT SAID:  "TO DENY CITIZENS FROM OTHER STATES, SUITORS UNDER
F.E.L.A., ACCESS TO ITS COURTS WOULD, IF IT PERMITTED ACCESS TO ITS OWN
CITIZENS, VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE."  ID. AT 704. 
IN THE PROCEEDING BELOW THE HIGHEST COURT OF MISSOURI FOLLOWED THIS
VIEW.  IT STATED UNEQUIVOCALLY: 

"THE FEDERAL EMPLOYERS' LIABILITY ACT DOES NOT COMPEL THE COURTS OF
THIS STATE TO HEAR CASES ARISING UNDER THAT ACT, BUT IT EMPOWERS OUR
COURTS TO DO SO. 

"SINCE MISSOURI DOES ALLOW ITS CITIZENS TO MAINTAIN FEDERAL
EMPLOYERS' LIABILITY ACTIONS IN ITS COURTS,  ...  IT FOLLOWS THAT NOT
TO ALLOW CITIZENS OF OTHER STATES THE RIGHT TO FILE FEDERAL EMPLOYERS'
LIABILITY SUITS IN OUR STATE COURTS WOULD VIOLATE ARTICLE 4, SECTION 2,
OF THE CONSTITUTION OF THE UNITED STATES."  359 MO. 827 AT 839, 224
S.W.2D 105 AT 110(1949). 

BUT THE MAJORITY OF THIS COURT APPARENTLY PRESUMES THAT WHEN THE
SUPREME COURT OF MISSOURI THUS USED THE TERM "CITIZENS" IT WAS
UNMINDFUL THAT THE TERM INCLUDES ALL PERSONS DOMICILED WITHIN A STATE
REGARDLESS OF THEIR ACTUAL RESIDENCE.  I AM UNWILLING TO CONCLUDE THAT
THE COURT THOUGHT THAT ONLY ACTUAL RESIDENTS OF MISSOURI ARE CITIZENS
OF THAT STATE.  INDEED IT SEEMS CLEAR THAT THE COURT USED THE TERM
"CITIZENS" IN THE USUAL SENSE, MEANING TO INCLUDE MISSOURIANS
REGARDLESS OF WHERE THEY RESIDE.  THAT IT DID IS SHOWN BY ITS
DISCUSSION OF THE OPINION OF THIS COURT IN DOUGLAS V. NEW YORK, N.H. &
H.R. CO., 279 U.S. 377(1929), WHICH UPHELD A NEW YORK STATUTE
PERMITTING DISMISSAL OF SUITS BY "NON-RESIDENTS" AGAINST FOREIGN
CORPORATIONS.  AS AGAINST THE CONTENTION THAT THE NEW YORK STATUTE
DISCRIMINATED AGAINST CITIZENS OF OTHER STATES, THIS COURT IN THE
DOUGLAS CASE FOUND THE STATUTE UNOBJECTIONABLE SINCE NEW YORK COURTS IN
DEFINING "RESIDENTS" HAD INCLUDED ONLY PERSONS ACTUALLY LIVING IN NEW
YORK AND HAD INTERPRETED "NON-RESIDENTS" TO MEAN ALL PERSONS RESIDING
OUTSIDE THE STATE, WHETHER CITIZENS OF NEW YORK OR OF SOME OTHER
STATE.  THE MISSOURI COURT BELOW OBSERVED THAT MISSOURI HAD NO SUCH
STATUTE AND THAT DISMISSAL COULD NOT BE JUSTIFIED IN VIEW OF ITS LOCAL
POLICY WHICH "PERMITS CITIZENS OF THIS STATE TO FILE FEDERAL EMPLOYERS'
LIABILITY CASES IN ITS COURTS."  359 MO. AT 838, 224 S.W.2D AT 110. 

OUR DUTY IS TO UPHOLD THE DECISION BELOW IF THERE WAS A VALID GROUND
TO SUSTAIN IT.  AS THERE WAS A SUFFICIENT GROUND, WE SHOULD NOT VACATE
AND REMAND MERELY BECAUSE CERTAIN STATEMENTS OF THE MISSOURI COURT MAY
INDICATE THAT IT ALSO FELT UNDER COMPULSION OF FEDERAL DECISIONS
APPLYING THE LIABILITY ACT.  THE CASES OUT OF WHICH THIS PROCEEDING
ARISES ARE NOW IN THEIR THIRD YEAR IN THE COURTS WITHOUT COMING TO
TRIAL, AND REMAND BY THIS COURT WILL UNNECESSARILY CAUSE FURTHER DELAY
AND EXPENSE IN BRINGING THEM TO FINAL ADJUDICATION.  I WOULD AFFIRM. 
..END :












FOGARTY V. UNITED STATES, 340 U.S. 8 


NO. 6.  ARGUED OCTOBER 10, 1950.  - DECIDED NOVEMBER 6, 1950.  - 176
F.2D 599, AFFIRMED. 


IN THE CIRCUMSTANCES OF THIS CASE, HELD THAT THE CORPORATION OF WHICH
PETITIONER IS TRUSTEE IN BANKRUPTCY AND WHICH HAD CONTRACTS WITH THE
NAVY DEPARTMENT FOR THE PRODUCTION OF WAR MATERIALS, DID NOT, ON OR
BEFORE AUGUST 14, 1945, FILE WITH THE NAVY DEPARTMENT A "WRITTEN
REQUEST FOR RELIEF" WITHIN THE MEANING OF SEC. 3 OF THE WAR CONTRACT
HARDSHIP CLAIMS ACT OF AUGUST 7, 1946, AND THEREFORE WAS NOT ENTITLED
TO RELIEF UNDER THAT ACT.  PP. 8-14. 

(A)  CONGRESS INTENDED THE TERM "WRITTEN REQUEST FOR RELIEF" TO MEAN
WRITTEN NOTICE PRESENTED PRIOR TO AUGUST 14, 1945, TO AN AGENCY WHICH
WAS AUTHORIZED TO GRANT RELIEF UNDER SEC. 201 OF THE FIRST WAR POWERS
ACT.  P. 13. 

(B)  NO PARTICULAR FORM OF NOTICE IS REQUIRED; BUT, WHATEVER THE FORM
OF NOTICE, IT MUST BE SUFFICIENT TO APPRISE THE AGENCY THAT IT WAS
BEING ASKED TO GRANT EXTRA-LEGAL RELIEF UNDER THE FIRST WAR POWERS ACT
FOR LOSSES SUSTAINED IN THE PERFORMANCE OF WAR CONTRACTS.  P. 13. 

(C)  DOCUMENTS WHICH SOUGHT PAYMENT AS A MATTER OF RIGHT, NOT RELIEF
AS A MATTER OF GRACE, WERE NOT SUFFICIENT TO APPRISE THE NAVY
DEPARTMENT THAT IT WAS BEING ASKED TO ACCORD RELIEF UNDER THE FIRST WAR
POWERS ACT.  P. 14. 

FOGARTY, TRUSTEE IN BANKRUPTCY, V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

IN A SUIT AGAINST THE UNITED STATES UNDER THE WAR CONTRACT HARDSHIP
CLAIMS ACT OF AUGUST 7, 1946, 60 STAT. 902, 41 U.S.C. SEC. 106, THE
DISTRICT COURT ENTERED SUMMARY JUDGMENT FOR THE UNITED STATES.  80
F.SUPP.  90.  THE COURT OF APPEALS AFFIRMED.  176 F.2D 599.  THIS COURT
GRANTED CERTIORARI.  339 U.S. 909.  AFFIRMED, P. 14. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AS TRUSTEE IN BANKRUPTCY OF INLAND WATERWAYS, INC.,
BROUGHT SUIT AGAINST THE UNITED STATES IN THE DISTRICT COURT OF
MINNESOTA, FIFTH DIVISION, UNDER THE WAR CONTRACT HARDSHIP CLAIMS ACT,
POPULARLY KNOWN AS THE LUCAS ACT, ADOPTED AUGUST 7, 1946, 60 STAT. 902,
41 U.S.C. SEC. 106 NOTE, TO RECOVER $328,804.42 AS LOSSES ALLEGED TO
HAVE BEEN SUSTAINED UNDER CERTAIN CONTRACTS WITH THE NAVY DEPARTMENT
FOR THE PRODUCTION OF WAR SUPPLIES AND MATERIALS.  ON MOTION, SUMMARY
JUDGMENT WAS ENTERED FOR THE UNITED STATES.  80 F.SUPP.  90.  THE COURT
OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED.  176 F.2D 599.  THE SUIT
TURNS ON THE INTERPRETATION AND MEANING TO BE ASCRIBED TO PARTS OF THE
FEDERAL STATUTE.  BECAUSE WE DEEMED RESOLUTION OF THE ISSUES IMPORTANT,
ESPECIALLY IN VIEW OF ASSERTED CONFLICTS OF DECISION IN THE
INTERPRETATION OF THE STATUTE AMONG OTHER FEDERAL COURTS, CERTIORARI
WAS GRANTED.  339 U.S. 909. 

THE FACTS ARE NOT IN DISPUTE.  INLAND WATERWAYS, FINANCED BY A
GOVERNMENT GUARANTEED LOAN AND ADVANCES UNDER THE CONTRACTS, ENTERED
INTO SEVERAL CONTRACTS AND SUPPLEMENTAL AGREEMENTS WITH THE NAVY
DEPARTMENT, DATED FROM SEPTEMBER 18, 1941, TO OCTOBER 30, 1942, FOR THE
PRODUCTION OF SUBMARINE CHASERS AND PLANE REARMING BOATS.  LITTLE
PROGRESS HAD BEEN MADE UNDER THE CONTRACTS WHEN, ON DECEMBER 18, 1942,
INLAND WATERWAYS FILED A PETITION FOR REORGANIZATION IN BANKRUPTCY. 
PETITIONER WAS APPOINTED TRUSTEE IN BANKRUPTCY.  THE UNITED STATES
FILED CLAIMS IN THESE PROCEEDINGS BASED PRIMARILY ON THE UNPAID BALANCE
OF THE LOAN PLUS INTEREST, THE COST OF COMPLETING INCOMPLETE AND
DEFECTIVE WORK ON SHIPS DELIVERED UNDER THE CONTRACTS, AND DECREASED
COSTS RESULTING FROM CERTAIN CHANGES IN THE PLANS AND SPECIFICATIONS. 
PETITIONER FILED A COUNTERCLAIM BASED PRIMARILY ON PAYMENTS DUE FOR
PROGRESS IN CONSTRUCTION, OVERTIME WORK, CHANGES IN PLANS AND
SPECIFICATIONS AND IN WAGE RATES INVOLVING INCREASED COST TO INLAND
WATERWAYS, AND THE VALUE OF PARTIALLY COMPLETED WORK REQUISITIONED BY
THE GOVERNMENT AND THE COST OF ITS PRESERVATION.  IN SUPPORT OF HIS
COUNTERCLAIM, PETITIONER SUBMITTED TO THE BANKRUPTCY COURT A PETITION
FOR COMPENSATION FOR REQUISITIONED PROPERTY AND A NUMBER OF INVOICES
PURPORTING TO BILL THE NAVY DEPARTMENT FOR GOODS AND SERVICES, ALL OF
WHICH HAD PREVIOUSLY BEEN SUBMITTED TO AGENCIES OF THE NAVY
DEPARTMENT.  ON FEBRUARY 20, 1945, THE GOVERNMENT AND PETITIONER
EXECUTED AN AGREEMENT COMPROMISING THESE CLAIMS UPON PAYMENT OF SOME
$16,000 BY THE UNITED STATES TO PETITIONER.  THE SETTLEMENT AGREEMENT
EMBODIED A MUTUAL GENERAL RELEASE IN THE BROADEST OF TERMS AND WAS
APPROVED BY THE BANKRUPTCY COURT. 

PETITIONER INITIATED HIS EFFORTS TO SECURE RELIEF UNDER THE LUCAS ACT
ON FEBRUARY 1, 1947, BY FILING A CLAIM WITH THE WAR CONTRACTS RELIEF
BOARD OF THE NAVY DEPARTMENT BASED ON THE SAME MATTERS WHICH HAD BEEN
THE SUBJECT OF THE COMPROMISE AGREEMENT EFFECTED SOME TWO YEARS BEFORE
IN THE BANKRUPTCY PROCEEDINGS.  THE SAME DOCUMENTS SUBMITTED IN SUPPORT
OF THE COUNTERCLAIM IN THE BANKRUPTCY COURT, PLUS THE COUNTERCLAIM
ITSELF, WERE RELIED ON BY PETITIONER AS SHOWING A TIMELY REQUEST FOR
RELIEF UNDER THE LUCAS ACT.  THE BOARD DENIED THE CLAIM.  THIS SUIT
FOLLOWED UNDER SEC. 6 OF THE LUCAS ACT. 

THE ONLY QUESTION DECIDED BY THE COURT OF APPEALS WAS THAT PETITIONER
DID NOT FILE WITH THE NAVY DEPARTMENT ON OR BEFORE AUGUST 14, 1945, A
"WRITTEN REQUEST FOR RELIEF" WITHIN THE MEANING OF SEC. 3 OF THE LUCAS
ACT.  WE DIRECT OUR ATTENTION TO THE CORRECTNESS OF THAT HOLDING. 
NEITHER THE ACT NOR THE REGULATIONS OF THE PRESIDENT THEREUNDER DEFINE
THE TERM.  PERTINENT PARTS OF THE ACT ARE SET FORTH IN THE MARGIN. 
FN1 

SHORTLY AFTER PEARL HARBOR, CONGRESS GRANTED TO THE PRESIDENT UNDER
SEC. 201 OF THE FIRST WAR POWERS ACT, 55 STAT. 838, 839, 50 U.S.C. APP.
SEC. 611, THE POWER TO AUTHORIZE GOVERNMENT AGENCIES TO MAKE AMENDMENTS
AND MODIFICATIONS OF CONTRACTS FOR WAR SUPPLIES WITHOUT REGARD TO
CONSIDERATION IF "SUCH ACTION WOULD FACILITATE THE PROSECUTION OF THE
WAR."  THROUGHOUT THE WAR, DEPARTMENTS AND AGENCIES OF THE GOVERNMENT
UTILIZED THE PROVISIONS OF THE ACT AND REGULATIONS THEREUNDER TO
ALLEVIATE HARDSHIPS ENCOUNTERED BY WAR CONTRACTORS IN AN ECONOMY GEARED
TO ALL-OUT WAR.  AFTER THE TERMINATION OF HOSTILITIES AUGUST 14, 1945,
HOWEVER, DEPARTMENTS OF THE GOVERNMENT TOOK DIFFERENT VIEWS OF THEIR
POWERS UNDER THE ACT AND REGULATIONS.  SOME CONTINUED TO EXERCISE THOSE
POWERS, WHILE OTHERS TOOK THE POSITION THAT THEY WERE NO LONGER
APPLICABLE, SINCE THE WAR WAS OVER AND CONTRACT MODIFICATIONS COULD NOT
"FACILITATE THE PROSECUTION OF THE WAR."  THIS RESULTED IN A DISPARITY
OF TREATMENT OF CLAIMANTS FOR THE RELIEF OF THE ACT WHOSE CLAIMS HAD
BEEN FILED BUT NOT ACTED UPON BEFORE AUGUST 14, 1945.  WHETHER SUCH A
CONTRACTOR WAS TO BE ACCORDED RELIEF UNDER THE ACT DEPENDED ON THE VIEW
THE DEPARTMENT WITH WHICH HE HAD CONTRACTED TOOK OF THE ACT.  THIS
SITUATION MOTIVATED CONGRESSIONAL ACTION.  SEE S. REP. NO. 1669, 79TH
CONG., 2D SESS.,  FN2 ACCOMPANYING S. 1477, WHICH BECAME THE LUCAS
ACT. 

THIS LEGISLATIVE HISTORY ILLUMINATES, FOR PURPOSES OF THE QUESTION AT
HAND, THE RELATION OF THE FIRST WAR POWERS AND THE LUCAS ACTS.  THE
WORDS OF THE LUCAS ACT ITSELF SHED FURTHER LIGHT ON THAT SUBJECT.  LIKE
SEC. 201 OF THE FIRST WAR POWERS ACT, THE LUCAS ACT CONTEMPLATES RELIEF
BY GRACE AND NOT IN RECOGNITION OF LEGAL RIGHTS.  IT SPEAKS IN SEC. 1
OF "EQUITABLE CLAIMS  ...  FOR LOSSES ...  IN THE PERFORMANCE OF SUCH
CONTRACTS OR SUBCONTRACTS," AND IN SEC. 2, OF "FAIR AND EQUITABLE
SETTLEMENT OF CLAIMS."  FURTHER, THE ACT LIMITS THE DEPARTMENTS AND
AGENCIES WHICH MAY GRANT RELIEF TO THOSE WHICH WERE AUTHORIZED TO GRANT
RELIEF UNDER THE FIRST WAR POWERS ACT.  FINALLY, IT LIMITS CLAIMS UPON
WHICH RELIEF MAY BE GRANTED TO THOSE WHICH HAD BEEN PRESENTED "ON OR
BEFORE AUGUST 14, 1945."  AS WE HAVE SEEN, THAT DATE WAS THE ONE AROUND
WHICH DEPARTMENTS AND AGENCIES ADOPTED THE DIFFERING VIEWS OF THE FIRST
WAR POWERS ACT WHICH NECESSITATED CONGRESSIONAL ACTION. 

IN THE LIGHT OF THE FOREGOING CONSIDERATIONS AND THE RELATION OF THE
LUCAS ACT TO THE FIRST WAR POWERS ACT, WE THINK CONGRESS INTENDED THE
TERM "WRITTEN REQUEST FOR RELIEF" TO MEAN WRITTEN NOTICE PRESENTED
PRIOR TO AUGUST 14, 1945, TO AN AGENCY WHICH WAS AUTHORIZED TO GRANT
RELIEF UNDER SEC. 201 OF THE FIRST WAR POWERS ACT.  SINCE THERE IS NO
DEFINITION OF THE TERM IN THE ACT OR REGULATIONS, AND SINCE THE
LEGISLATIVE HISTORY OF THE ACT DOES NOT SHOW THAT ANY SETTLED USAGE OF
THE TERM WAS BROUGHT TO THE ATTENTION OF CONGRESS, NO PARTICULAR FORM
OF NOTICE IS REQUIRED.  BUT WHATEVER THE FORM OF NOTICE, IT MUST BE
SUFFICIENT TO APPRISE THE AGENCY THAT IT WAS BEING ASKED TO GRANT EXTRA
LEGAL RELIEF UNDER THE FIRST WAR POWERS ACT FOR LOSSES SUSTAINED IN THE
PERFORMANCE OF WAR CONTRACTS. 

PETITIONER, IN ATTEMPTING TO ESTABLISH AN INTERPRETATION OF THE LUCAS
ACT WHICH WOULD ALLOW HIM TO MAINTAIN THIS SUIT, HAS PLACED MUCH
RELIANCE ON EVENTS WHICH OCCURRED IN CONGRESS SUBSEQUENT TO ITS
ENACTMENT.  THE SECOND SESSION OF THE EIGHTY-FIRST CONGRESS PASSED H.R.
3436, WHICH WAS VETOED BY THE PRESIDENT.  96 CONG. REC. 8291, 8658,
9602.  THEREAFTER, CONGRESS PASSED S. 3906, WHICH FAILED OF ENACTMENT
OVER ANOTHER VETO OF THE PRESIDENT.  96 CONG. REC. 12911, 14652. 
PETITIONER'S ARGUMENT IS THAT THESE BILLS AND THEIR LEGISLATIVE HISTORY
SHOW THAT CONGRESS HAD A DIFFERENT INTENT IN PASSING THE LUCAS ACT THAN
THAT ATTRIBUTED TO IT BY ITS ADMINISTRATORS AND SOME OF THE COURTS.  IF
THERE IS ANYTHING IN THESE SUBSEQUENT EVENTS AT ODDS WITH OUR FINDING
OF THE MEANING OF SEC. 3, IT WOULD NOT SUPPLANT THE CONTEMPORANEOUS
INTENT OF THE CONGRESS WHICH ENACTED THE LUCAS ACT.  CF. UNITED STATES
V. MINE WORKERS, 330 U.S. 258, 281-282. 

WE DO NOT THINK THAT THE DOCUMENTS RELIED ON BY PETITIONER COME
WITHIN THE MEANING OF THE TERM "WRITTEN REQUEST FOR RELIEF."  NEITHER
THE COUNTERCLAIM IN THE BANKRUPTCY COURT, NOR THE PETITION FOR
COMPENSATION FOR REQUISITIONED PROPERTY, NOR THE INVOICES FOR EXTRAS,
SOUGHT RELIEF AS A MATTER OF GRACE.  THEY SOUGHT PAYMENT AS A MATTER OF
RIGHT.  THE COUNTERCLAIM DEMANDED JUDGMENT OF THE BANKRUPTCY COURT. 
THE PETITION FOR REQUISITIONED PROPERTY AND THE INVOICES WERE LEGAL
CLAIMS FOR COMPENSATION UNDER CONTRACT.  AS SUCH, THEY CONSTITUTED A
BASIS FOR SUIT IN COURT.  SEE, E.G., 28 U.S.C. SEC. 1346.  THAT
PETITIONER HIMSELF THOUGHT OF THEM AS JUDICIALLY COGNIZABLE CLAIMS IS
EVIDENCED BY THE FACT THAT HE INCLUDED THEM IN THE COUNTERCLAIM FILED
WITH THE BANKRUPTCY COURT, WHICH OBVIOUSLY HAD NO JURISDICTION TO AWARD
ANY EXTRA-LEGAL RELIEF UNDER THE FIRST WAR POWERS ACT. 

NONE OF THE DOCUMENTS RELIED ON BY PETITIONER WAS SUFFICIENT TO
APPRISE THE NAVY DEPARTMENT THAT IT WAS BEING ASKED TO ACCORD RELIEF
UNDER THE FIRST WAR POWERS ACT.  WE MUST THEREFORE AGREE WITH THE COURT
OF APPEALS THAT NO "WRITTEN REQUEST FOR RELIEF" WAS FILED, AND,
THEREFORE, THAT RECOVERY WAS NOT AVAILABLE TO PETITIONER UNDER THE
LUCAS ACT.  WE DO NOT REACH ALTERNATIVE QUESTIONS.  THE JUDGMENT IS
AFFIRMED. 

FN1  SEC. 1.  "  ...  WHERE WORK, SUPPLIES, OR SERVICES HAVE BEEN
FURNISHED BETWEEN SEPTEMBER 16, 1940, AND AUGUST 14, 1945, UNDER A
CONTRACT OR SUBCONTRACT, FOR ANY DEPARTMENT OR AGENCY OF THE GOVERNMENT
WHICH PRIOR TO THE LATTER DATE WAS AUTHORIZED TO ENTER INTO CONTRACTS
AND AMENDMENTS OR MODIFICATIONS OF CONTRACTS UNDER SECTION 201 OF THE
FIRST WAR POWERS ACT, 1941  ... SUCH DEPARTMENTS AND AGENCIES ARE
HEREBY AUTHORIZED, IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY
THE PRESIDENT  ...  TO CONSIDER, ADJUST, AND SETTLE EQUITABLE CLAIMS
...  FOR LOSSES (NOT INCLUDING DIMINUTION OF ANTICIPATED PROFITS)
INCURRED BETWEEN SEPTEMBER 16, 1940, AND AUGUST 14, 1945, WITHOUT FAULT
OR NEGLIGENCE ON THEIR PART IN THE PERFORMANCE OF SUCH CONTRACTS OR
SUBCONTRACTS.  ... 

"SEC. 2.  (A)  IN ARRIVING AT A FAIR AND EQUITABLE SETTLEMENT OF 

MR. JUSTICE BLACK CONCURS IN THE RESULT.  CLAIMS UNDER THIS ACT  ... 

"SEC. 3.  CLAIMS FOR LOSSES SHALL NOT BE CONSIDERED UNLESS FILED WITH
THE DEPARTMENT OR AGENCY CONCERNED WITHIN SIX MONTHS AFTER THE DATE OF
APPROVAL OF THIS ACT, AND SHALL BE LIMITED TO LOSSES WITH RESPECT TO
WHICH A WRITTEN REQUEST FOR RELIEF WAS FILED WITH SUCH DEPARTMENT OR
AGENCY ON OR BEFORE AUGUST 14, 1945  ...  " 

FN2  "THIS BILL, AS AMENDED, WOULD AFFORD FINANCIAL RELIEF TO THOSE
CONTRACTORS WHO SUFFERED LOSSES IN THE PERFORMANCE OF WAR CONTRACTS IN
THOSE CASES WHERE THE CLAIM WOULD HAVE RECEIVED FAVORABLE CONSIDERATION
UNDER THE FIRST WAR POWERS ACT AND EXECUTIVE ORDER NO. 9001 IF ACTION
HAD BEEN TAKEN BY THE GOVERNMENT PRIOR TO THE CAPITULATION OF THE
JAPANESE GOVERNMENT.  HOWEVER, UPON THE CAPITULATION, THE POSITION WAS
TAKEN BY CERTAIN DEPARTMENTS AND AGENCIES OF THE GOVERNMENT INVOLVED,
THAT NO RELIEF SHOULD BE GRANTED UNDER THE AUTHORITY WHICH THEN
EXISTED, UNLESS THE ACTION WAS REQUIRED IN ORDER TO INSURE CONTINUED
PRODUCTION NECESSARY TO MEET POST VJ-DAY REQUIREMENTS.  THIS WAS ON THE
BASIS THAT THE FIRST WAR POWERS ACT WAS ENACTED TO AID IN THE
SUCCESSFUL PROSECUTION OF THE WAR AND NOT AS AN AID TO THE
CONTRACTORS.  AS A RESULT, A NUMBER OF CLAIMS WHICH WERE IN PROCESS AT
THE TIME OF THE SURRENDER OF THE JAPANESE GOVERNMENT, OR WHICH HAD NOT
BEEN PRESENTED PRIOR TO SUCH TIME, WERE DENIED EVEN THOUGH THE FACTS IN
A PARTICULAR CASE WOULD HAVE JUSTIFIED FAVORABLE ACTION IF SUCH ACTION
HAD BEEN TAKEN PRIOR TO SURRENDER." 
..END :





















COMMISSIONER V. KORELL, 339 U.S. 619 


NO. 384.  ARGUED FEBRUARY 7, 1950.  - DECIDED JUNE 5, 1950.  - 176 F.2D
152, AFFIRMED. 


IN 1944, AN INDIVIDUAL TAXPAYER PURCHASED AT A PREMIUM PRICE OF $121
CERTAIN TAXABLE CORPORATE BONDS WITH A FACE VALUE OF $100 WHICH WERE
THEN CALLABLE AT $104.  UPON PAYMENT OF $40, EACH BOND WAS CONVERTIBLE
AT THE OPTION OF THE HOLDER INTO A SHARE OF COMMON STOCK WHICH THEN HAD
A MARKET VALUE OF $163.  HELD: UNDER SEC. 125 OF THE INTERNAL REVENUE
CODE, THE TAXPAYER, IN HIS INCOME TAX RETURN FOR 1944, WAS ENTITLED TO
DEDUCT, AS "AMORTIZABLE BOND PREMIUM" ON EACH BOND, THE DIFFERENCE
BETWEEN THE PURCHASE PRICE OF $121 AND THE CALL PRICE OF $104.  PP. 620
628. 

(A)  THE CALLABILITY AND CONVERTIBILITY OF THESE BONDS DID NOT REMOVE
THEM FROM THE REACH OF SEC. 125.  PP. 623-624. 

(B)  THAT THE PREMIUM MAY HAVE BEEN PAID FOR THE CONVERSION
PRIVILEGE, RATHER THAN FOR A HIGHER RATE OF INTEREST, DID NOT PREVENT
IT FROM BEING AMORTIZABLE UNDER SEC. 125.  PP. 624-628. 

(C)  THE TERM "BOND PREMIUM" IN SEC. 125 MEANS ANY EXTRA PAYMENT,
REGARDLESS OF THE REASON THEREFOR.  P. 627. 

COMMISSIONER OF INTERNAL REVENUE V. KORELL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE COMMISSIONER OF INTERNAL REVENUE DISALLOWED RESPONDENT'S
DEDUCTION IN HIS INDIVIDUAL INCOME TAX RETURN OF "AMORTIZABLE BOND
PREMIUM" UNDER SEC. 125 OF THE INTERNAL REVENUE CODE.  THE TAX COURT
OVERRULED THE COMMISSIONER.  10 T.C. 1001.  THE COURT OF APPEALS
AFFIRMED.  176 F.2D 152.  THIS COURT GRANTED CERTIORARI.  338 U.S.
890.  AFFIRMED, P. 628. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE TAX CONSEQUENCES OF A PURCHASE OF CONVERTIBLE BONDS ARE IN ISSUE
HERE.  IN AUGUST, 1944, RESPONDENT, AN INDIVIDUAL TAXPAYER, PURCHASED
CERTAIN AMERICAN TELEPHONE AND TELEGRAPH COMPANY BONDS, EACH HAVING A
FACE VALUE OF $100, AT A PREMIUM PRICE AVERAGING SLIGHTLY IN EXCESS OF
$121.  EACH BOND WAS CONVERTIBLE INTO A SHARE OF COMMON STOCK, AT THE
OPTION OF THE BONDHOLDER, UPON THE PAYMENT OF $40.  THE MARKET PRICE OF
THE STOCK WAS OVER $163 WHEN RESPONDENT MADE HIS BOND PURCHASES.  THE
BONDS WERE CALLABLE PRIOR TO MATURITY DATE ACCORDING TO A SCHEDULE
APPEARING IN THE INDENTURE; HAD THE CORPORATION GIVEN APPROPRIATE
NOTICE AT THE DATES OF RESPONDENT'S PURCHASES, THE BONDS WOULD HAVE
BEEN REDEEMED AT $104. 

IN HIS 1944 INCOME TAX RETURN, RESPONDENT CLAIMED A DEDUCTION IN
EXCESS OF $8,600 FOR AMORTIZABLE BOND PREMIUM.  HE COMPUTED HIS
DEDUCTION ON EACH BOND AS THE DIFFERENCE BETWEEN HIS PURCHASE PRICE,
$121, AND THE CALL PRICE, $104.  THIS COMPUTATION IS CONCEDEDLY CORRECT
IF THE DEDUCTION IS ALLOWABLE.  THE COMMISSIONER OF INTERNAL REVENUE,
PETITIONER HERE, REFUSED TO ALLOW ANY SUCH DEDUCTION.  HIS THEORY WAS
THAT SEC. 125 OF THE INTERNAL REVENUE CODE ESTABLISHING THE DEDUCTION
FOR "AMORTIZABLE BOND PREMIUM" DID NOT INCLUDE PREMIUM PAID FOR THE
CONVERSION PRIVILEGE.  A CONTRARY VIEW OF THE STATUTE WAS ADOPTED BY
THE TAX COURT.  10 T.C. 1001(1948).  THE COURT BELOW AFFIRMED, HOLDING
THAT RESPONDENT WAS ENTITLED TO THE AMORTIZATION DEDUCTION.  176 F.2D
152(1949).  WE GRANTED CERTIORARI, 338 U.S. 890(1949), TO RESOLVE THE
CONFLICT BETWEEN THE DECISION BELOW AND THAT OF THE COURT OF APPEALS
FOR THE NINTH CIRCUIT IN COMMISSIONER V. SHOONG, 177 F.2D 131(1949). 

PRIOR TO 1942, BOND PREMIUM WAS IRRELEVANT FOR TAX PURPOSES.  WHETHER
OR NOT THE PURCHASE PRICE EXCEEDED THE FACE VALUE OF THE BOND, THE
HOLDER CONSIDERED THE FULL PRICE AS THE BASIS FOR CAPITAL GAIN OR LOSS,
AND REPORTED ALL TAXABLE INTEREST RECEIVED AS INCOME.  FN1  IN
PRESENTING ITS 1942 TAX PROPOSALS, HOWEVER, THE TREASURY ADOPTED THE
VIEW THAT EACH RECEIPT OF INTEREST IS NOT ENTIRELY INCOME BUT IS
PARTIALLY A RESTORATION OF CAPITAL.  ITS SPOKESMAN POINTED TO THE
CONSEQUENT DISCRIMINATION AGAINST HOLDERS OF TAXABLE BONDS: THEY WERE
BEING TAXED ON A RETURN OF CAPITAL, WHILE HOLDERS OF TAX-EXEMPT BONDS
WERE NOT.  FN2  TO REMEDY THIS INEQUITY, THE TREASURY RECOMMENDED THAT
AMORTIZATION OF PREMIUM BE PERMITTED IN THE CASE OF TAXABLE BONDS, AND
THAT THE BASIS FOR CAPITAL GAIN OR LOSS FOR ALL BONDS HE ADJUSTED BY
THE AMOUNT OF DEDUCTION ALLOWABLE FOR TAXABLES AND DISALLOWABLE FOR TAX
EXEMPTS.  THESE RECOMMENDATIONS WERE ULTIMATELY INCLUDED IN THE REVENUE
ACT OF 1942, 56 STAT. 798, 822, AS SECS. 113 AND 125 OF THE INTERNAL
REVENUE CODE. 

IS ESTABLISHED, APPLICABLE "IN THE CASE OF ANY BOND  ...,"  THAT THE
DEDUCTION FOR AMORTIZABLE BOND PREMIUM MAY NOT BE TAKEN IF THE INTEREST
IS TAX-EXEMPT, BUT MAY BE IF THE BOND INTEREST IS TAXABLE.  TAXPAYERS
HOLDING BONDS IN THE LATTER CATEGORY MAY ELECT WHETHER OR NOT TO
AMORTIZE IN ACCORDANCE WITH RULES LAID DOWN IN SUBSECTION (C). 
SUBSECTION (B) DEFINES THE METHOD OF COMPUTING "THE AMOUNT OF BOND
PREMIUM, IN THE CASE OF THE HOLDER OF ANY BOND  ...."  PETITIONER URGES
THAT THIS DOES NOT DEFINE THE KIND OF BOND PREMIUM WHICH IS
AMORTIZABLE; RESPONDENT CONTENDS THAT THIS PROVISION ESTABLISHES A
MANDATORY COMPUTATION APPLICABLE TO ANY BOND PREMIUM.  SUBSECTION (D)
CONSISTS OF A GENERAL DEFINITION OF "BOND" AND CERTAIN EXCEPTIONS
THERETO, CHIEFLY BONDS HELD FOR SALE OR AS STOCK IN TRADE.  THAT THE
SECURITIES PURCHASED BY RESPONDENT FALL WITHIN THE GENERAL DEFINITION
AND WITHOUT THE EXCEPTIONS IS UNDISPUTED. 

THERE CAN BE NO DOUBT THAT THE CALLABILITY AND CONVERTIBILITY OF
THESE BONDS DO NOT REMOVE THEM FROM THE REACH OF SEC. 125.  THE ROLE OF
SUCH BONDS WAS SPECIFICALLY BROUGHT INTO THE CONGRESSIONAL DISCUSSION
BY AT LEAST ONE WITNESS AT THE HEARINGS.  FN4  AND THE CONGRESS
RENDERED UNMISTAKABLY CLEAR ANSWERS IN THE LANGUAGE OF THE ACT, E.G.,
BY EXPRESS REFERENCE TO "EARLIER CALL DATE," SEC. 125(B)(1), AND IN
BOTH COMMITTEE REPORTS.  "THE FACT THAT A BOND IS CALLABLE OR
CONVERTIBLE INTO STOCK DOES NOT OF ITSELF PREVENT THE APPLICATION OF
THIS SECTION.  IN THE CASE OF A CALLABLE BOND, THE EARLIEST CALL DATE
WILL, FOR THE PURPOSES OF THIS SECTION, BE CONSIDERED AS THE MATURITY
DATE.  HENCE, THE TOTAL PREMIUM IS REQUIRED TO BE SPREAD OVER THE
PERIOD FROM THE DATE AS OF WHICH THE BASIS OF THE BOND IS ESTABLISHED
DOWN TO THE EARLIEST CALL DATE, RATHER THAN DOWN TO THE MATURITY DATE. 
IN THE CASE OF A CONVERTIBLE BOND, IF THE OPTION TO CONVERT THE BOND
INTO STOCK RESTS WITH THE OWNER OF THE BOND (AS IT DID IN THIS CASE),
THE BOND IS WITHIN THE PURVIEW OF THIS SECTION."  FN5  THE EXPRESS
DECISION OF CONGRESS TO INCLUDE THE TYPE OF BONDS PURCHASED BY
RESPONDENT IS OF COURSE BINDING ON THE COURTS. 

PETITIONER CONCEDES THAT THE BONDS PURCHASED BY RESPONDENT ARE WITHIN
THE REACH OF SEC. 125, BUT HE URGES THAT THIS CASE DOES NOT INVOLVE THE
KIND OF PREMIUM WHICH CONGRESS HAD IN MIND.  THE ARGUMENT IS THAT THIS
PREMIUM WAS PAID FOR THE CONVERSION PRIVILEGE, WHEREAS CONGRESS
INTENDED TO INCLUDE ONLY THAT PREMIUM (ENTITLED "TRUE" PREMIUM BY
PETITIONER) WHICH IS PAID FOR SECURING A HIGHER RATE OF INTEREST THAN
THE MARKET AVERAGE AND FOR NOTHING ELSE.  WE REJECT THIS ARGUMENT AS
INAPPOSITE TO THE STRUCTURE OF THE STATUTE, UNSUPPORTED BY THE
LEGISLATIVE HISTORY AND INCONSISTENT WITH THE NORMAL USE OF THE TERM
"BOND PREMIUM." 

AS CONGRESS WROTE THE STATUTE, THE SCOPE OF "BOND PREMIUM" IS
ADEQUATELY DENOTED BY DEFINING "BOND."  THERE WAS NO NEED FOR CONGRESS
TO QUALIFY BOTH WORDS IN ORDER TO MAKE ITS MEANING CLEAR; "PREMIUM" AS
AN ISOLATED TERM MAY NOT BE DEFINED IN THE STATUTE NOR EXPLAINED IN THE
LEGISLATIVE HISTORY, BUT "PREMIUM" IS NEVER USED IN THE STATUTE APART
FROM ITS MATE "BOND."  NO ATTEMPT TO DEFINE AND DISTINGUISH THE REASONS
FOR PAYING PREMIUM MARK THE PERTINENT TREASURY REGULATIONS 111, SEC.
29.125.  THEY MIRROR THE STRUCTURE OF THE STATUTE AND ARE CONSTRUCTED
IN TERMS OF "BONDS."  AGAIN, WE NOTE THAT THE BONDS HERE INVOLVED ARE
WITHOUT QUESTION EMBRACED BY THE STATUTE. 

TO BE SURE, CONGRESS MIGHT HAVE PROCEEDED BY DEFINING "PREMIUM" (AND
"TRUE" PREMIUM) RATHER THAN, OR AS WELL AS "BOND."  BUT WE CANNOT
REJECT THE CLEAR AND PRECISE AVENUE OF EXPRESSION ACTUALLY ADOPTED BY
THE CONGRESS BECAUSE IN A PARTICULAR CASE WE MAY KNOW, IF THE BONDS ARE
DISPOSED OF PRIOR TO OUR DECISION, THAT THE PUBLIC REVENUES WOULD BE
MAXIMIZED BY ADOPTING ANOTHER STATUTORY PATH.  CONGRESS WAS LEGISLATING
FOR THE GENERALITY OF CASES.  IT NOT ONLY CREATED A NEW DEDUCTION BUT
ALSO REQUIRED THAT THE BASIS BE ADJUSTED TO THE EXTENT OF THE DEDUCTION
ALLOWABLE FOR TAXABLES AND DISALLOWABLE FOR TAX-EXEMPTS.  FN6  THE
ADJUSTMENT INCREASED THE REVENUE POTENTIAL, FOR THE LOWER BASIS
OBVIOUSLY RAISED POSSIBLE CAPITAL GAIN AND LOWERED ALLOWABLE CAPITAL
LOSS.  IN THE CASE OF TAX-EXEMPT BONDS, WHICH HAD A TOTAL PAR VALUE IN
1942 OF OVER 58.5 BILLION DOLLARS,  FN7  THERE WAS NO ALLOWABLE
DEDUCTION TO BE SET OFF AGAINST THIS NEW REVENUE POTENTIAL.  IN THE
CASE OF TAXABLE BONDS, WHETHER THE TAX PAID ON CAPITAL GAINS WILL
EXCEED THE TAX AVOIDED BY THE DEDUCTION DEPENDS IN EACH PARTICULAR
INSTANCE UPON THE UNCERTAINTIES OF MARKET FLUCTUATIONS AND TAX RATES
AND THE CLUSTER OF OTHER FACTORS WHICH INDUCES A BONDHOLDER TO ACT AND
DETERMINES HIS TAX IN GIVEN YEARS.  FN8  THESE FACTORS MAY COMBINE IN A
SPECIFIC CASE TO PRODUCE AN EFFECT UPON REVENUE WHICH TO SOME MAY
APPEAR TOO DRASTIC FOR CONGRESS TO HAVE INTENDED.  BUT THERE IS NOTHING
IN THIS RECORD TO INDICATE THAT CONGRESS OR THE TREASURY ANTICIPATED
THAT THE TOTAL LONG-RUN EFFECT OF SECS. 113 AND 125 ON THE YIELD FROM
BOTH TAXABLES AND TAX-EXEMPTS WOULD BE TO DECREASE FEDERAL REVENUE. 
AND EVEN IF CONGRESS HAD EXPECTED THAT SOME LOSS OF REVENUE WOULD BE
ENTAILED, IT MIGHT HAVE DECIDED THAT MORE EQUAL TREATMENT OF TAXPAYERS
WAS MORE IMPORTANT THAN POSSIBLE REVENUE LOSS; IT CANNOT BE ARGUED THAT
CONGRESS LACKED THE LEGISLATIVE DISCRETION TO HAVE REACHED SUCH A
CONCLUSION.  IF IN PRACTICE THESE SECTIONS ARE CAUSING SUCH LOSS OF
REVENUE AS TO INDICATE THAT CONGRESS MAY HAVE ERRED IN ITS BALANCING OF
THE COMPETING CONSIDERATIONS INVOLVED, THE AMENDMENT MUST OBVIOUSLY BE
ENACTED BY THE CONGRESS AND NOT THE COMMISSIONER OF INTERNAL REVENUE OR
THIS COURT. 

THE LEGISLATIVE HISTORY FAILS TO INTIMATE THAT CONGRESS INTENDED TO
CONFINE THE DEDUCTION TO BONDS THE PREMIUM ON WHICH WAS PAID FOR A
HIGHER-THAN-MARKET INTEREST RATE.  AT MOST, PETITIONER'S PRESENTATION
OF THE LEGISLATIVE MATERIALS SUGGESTS THAT CONGRESS MAY HAVE HAD THE
BONDHOLDER WHO WAS SEEKING A HIGHER INTEREST RATE PRIMARILY IN MIND;
BUT IT DOES NOT ESTABLISH THAT CONGRESS IN FACT LEGISLATED WITH
REFERENCE TO HIM EXCLUSIVELY.  FN9  CONGRESS, AND THE TREASURY IN
ADVISING CONGRESS, MAY WELL HAVE CONCLUDED THAT THE BEST MANNER OF
AFFORDING HIM RELIEF AND CORRECTING THE INEQUITABLE TREATMENT OF
BONDHOLDERS WHOSE INTEREST RECEIPTS WERE TAXABLE, WAS TO DEFINE THE
SCOPE OF THE AMENDMENT BY REFERENCE TO TYPES OF BONDS RATHER THAN
CAUSES OF PREMIUM PAYMENT. 

AS "BOND PREMIUM" IS USED BY ACCOUNTANTS AND OTHER WRITERS IN THE
SECURITIES FIELD, IT IS ANY PAYMENT IN ADDITION TO FACE VALUE.  FN10
THERE IS NO SUGGESTION THAT THE WORDS HAVE ONLY A LIMITED SIGNIFICANCE,
ECHOING PETITIONER'S "TRUE" PREMIUM, APPLICABLE SOLELY TO THAT EXTRA
PRICE CAUSED BY THE DESIRE TO OBTAIN A HIGHER THAN AVERAGE INTEREST
YIELD.  ON THE CONTRARY, SOME AUTHORS HAVE NOTED THE VARIETY OF CAUSES
WHICH INDUCE THE PAYMENT OF BOND PREMIUM, AND THE PRACTICAL
IMPOSSIBILITY OF DISENTANGLING AND ISOLATING THEM FOR THE PURPOSE OF
RELATIVE EVALUATION, AS WOULD BE REQUIRED IF PETITIONER'S READING OF
THE STATUTE WERE UPHELD.  FN11  WE ADOPT THE VIEW THAT "BOND PREMIUM"
IN SEC. 125 MEANS ANY EXTRA PAYMENT, REGARDLESS OF THE REASON THEREFOR,
IN ACCORDANCE WITH THE FIRMLY ESTABLISHED PRINCIPLE OF TAX LAW THAT THE
ORDINARY MEANING OF TERMS IS PERSUASIVE OF THEIR STATUTORY MEANING. 
FN12 

WE CONCLUDE THAT CONGRESS MADE NO DISTINCTIONS BASED UPON THE
INDUCEMENTS FOR PAYING THE PREMIUM.  CONGRESS DELIMITED THE BOND
PREMIUM IT WISHED TO MAKE AMORTIZABLE IN TERMS OF CATEGORIES OF BONDS,
AND THERE IS NO DOUBT THAT RESPONDENT PURCHASED BONDS WHICH ARE
INCLUDED WITHIN THE PURVIEW OF SEC. 125.  RESPONDENT IS THEREFORE
ENTITLED TO THIS DEDUCTION AND THE JUDGMENT BELOW IS AFFIRMED. 

FN1  NEW YORK LIFE INS. CO. V. EDWARDS, 271 U.S. 109, 116(1926); CF.
OLD COLONY R. CO. V. COMMISSIONER, 284 U.S. 552, 561(1932). 

FN2  STATEMENT OF RANDOLPH PAUL, THEN TAX ADVISER TO THE SECRETARY OF
THE TREASURY AND SUBSEQUENTLY GENERAL COUNSEL OF THE DEPARTMENT, 1
HEARINGS BEFORE HOUSE COMMITTEE ON WAYS AND MEANS ON REVENUE REVISIONS
OF 1942, 77TH CONG., 2D SESS. 90(1942). 

FN3  INT. REV. CODE SEC. 125, TITLED "AMORTIZABLE BOND PREMIUM,"
READS AS FOLLOWS: 

"(A)  GENERAL RULE.  IN THE CASE OF ANY BOND, AS DEFINED IN
SUBSECTION (D), THE FOLLOWING RULES SHALL APPLY TO THE AMORTIZABLE BOND
PREMIUM (DETERMINED UNDER SUBSECTION (B)) ON THE BOND FOR ANY TAXABLE
YEAR BEGINNING AFTER DECEMBER 31, 1941: 

"(1)  INTEREST WHOLLY OR PARTIALLY TAXABLE.  IN THE CASE OF A BOND
(OTHER THAN A BOND THE INTEREST ON WHICH IS EXCLUDIBLE FROM GROSS
INCOME), THE AMOUNT OF THE AMORTIZABLE BOND PREMIUM FOR THE TAXABLE
YEAR SHALL BE ALLOWED AS A DEDUCTION. 

"(2)  INTEREST WHOLLY TAX-EXEMPT.  IN THE CASE OF ANY BOND THE
INTEREST ON WHICH IS EXCLUDIBLE FROM GROSS INCOME, NO DEDUCTION SHALL
BE ALLOWED FOR THE AMORTIZABLE BOND PREMIUM FOR THE TAXABLE YEAR. 

"(3)  ADJUSTMENT OF CREDIT IN CASE OF INTEREST PARTIALLY TAX-EXEMPT. 
IN THE CASE OF ANY BOND THE INTEREST ON WHICH IS ALLOWABLE AS A CREDIT
AGAINST NET INCOME, THE CREDIT PROVIDED IN SECTION 25(A)(1) OR (2), OR
THE AMORTIZABLE BOND PREMIUM FOR THE TAXABLE YEAR. 

"(FOR ADJUSTMENT TO BASIS ON ACCOUNT OF AMORTIZABLE BOND PREMIUM, SEE

"(B)  AMORTIZABLE BOND PREMIUM - 

"(1)  AMOUNT OF BOND PREMIUM.  FOR THE PURPOSES OF PARAGRAPH (2), THE
AMOUNT OF BOND PREMIUM, IN THE CASE OF THE HOLDER OF ANY BOND, SHALL BE
DETERMINED WITH REFERENCE TO THE AMOUNT OF THE BASIS (FOR DETERMINING
LOSS ON SALE OR EXCHANGE) OF SUCH BOND, AND WITH REFERENCE TO THE
AMOUNT PAYABLE ON MATURITY OR ON EARLIER CALL DATE, WITH ADJUSTMENTS
PROPER TO REFLECT UNAMORTIZED BOND PREMIUM WITH RESPECT TO THE BOND,
FOR THE PERIOD PRIOR TO THE DATE AS OF WHICH SUBSECTION (A) BECOMES
APPLICABLE WITH RESPECT TO THE TAXPAYER WITH RESPECT TO SUCH BOND. 
"(2)  AMOUNT AMORTIZABLE.  THE AMORTIZABLE BOND PREMIUM OF THE TAXABLE
YEAR SHALL BE THE AMOUNT OF THE BOND PREMIUM ATTRIBUTABLE TO SUCH
YEAR. 

"(3)  METHOD OF DETERMINATION.  THE DETERMINATIONS REQUIRED UNDER
PARAGRAPHS (1) AND (2) SHALL BE MADE - 

"(A)  IN ACCORDANCE WITH THE METHOD OF AMORTIZING BOND PREMIUM
REGULARLY EMPLOYED BY THE HOLDER OF THE BOND, IF SUCH METHOD IS
REASONABLE;    "(B)  IN ALL OTHER CASES, IN ACCORDANCE WITH REGULATIONS
PRESCRIBING REASONABLE METHODS OF AMORTIZING BOND PREMIUM, PRESCRIBED
BY THE COMMISSIONER WITH THE APPROVAL OF THE SECRETARY. 

"(C)  ELECTION ON TAXABLE AND PARTIALLY TAXABLE BONDS - 

"(1)  ELIGIBILITY TO ELECT AND BONDS WITH RESPECT TO WHICH ELECTION
PERMITTED.  THIS SECTION SHALL APPLY WITH RESPECT TO THE FOLLOWING
CLASSES OF TAXPAYERS WITH RESPECT TO THE FOLLOWING CLASSES OF BONDS
ONLY IF THE TAXPAYER HAS ELECTED TO HAVE THIS SECTION APPLY. 

     .         .         .        .         . 

"(D)  DEFINITION OF BOND.  AS USED IN THIS SECTION, THE TERM 'BOND'
MEANS ANY BOND, DEBENTURE, NOTE, OR CERTIFICATE OR OTHER EVIDENCE OF
INDEBTEDNESS, ISSUED BY ANY CORPORATION AND BEARING INTEREST (INCLUDING
ANY LIKE OBLIGATION ISSUED BY A GOVERNMENT OR POLITICAL SUBDIVISION
THEREOF), WITH INTEREST COUPONS OR IN REGISTERED FORM, BUT DOES NOT
INCLUDE ANY SUCH OBLIGATION WHICH CONSTITUTES STOCK IN TRADE OF THE
TAXPAYER OR ANY SUCH OBLIGATION 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 ANY SUCH OBLIGATION HELD BY THE TAXPAYER PRIMARILY
FOR SALE TO CUSTOMERS IN THE ORDINARY COURSE OF HIS TRADE OR
BUSINESS." 

FN4  SEE STATEMENT OF ROY C. OSGOOD, 2 HEARINGS BEFORE SENATE
COMMITTEE ON FINANCE ON H.R. 7378, 77TH CONG., 2D SESS. 1728-29(1942). 

FN5  H.R. REP. NO. 2333, 77TH CONG., 2D SESS. 80(1942).  PRECISELY
THE SAME LANGUAGE APPEARS IN S. REP. NO. 1631, 77TH CONG., 2D SESS.
94(1942).  U.S. TREAS. REG. 111, SEC. 29.125-5, IS OF IDENTICAL TENOR. 

FN6 INT. REV. CODE SEC. 113(B)(1) PROVIDES THAT "PROPER ADJUSTMENT IN
RESPECT OF THE PROPERTY SHALL IN ALL CASES BE MADE  ...  (H) IN THE
CASE OF ANY BOND (AS DEFINED IN SECTION 125) THE INTEREST ON WHICH IS
WHOLLY EXEMPT FROM THE TAX IMPOSED BY THIS CHAPTER, TO THE EXTENT OF
THE AMORTIZABLE BOND PREMIUM DISALLOWABLE AS A DEDUCTION PURSUANT TO
SUCH SECTION) TO THE EXTENT OF THE DEDUCTIONS ALLOWABLE PURSUANT TO
THE TEXT OF SEC. 125. 

FN7  OF THIS AMOUNT, 25.5 BILLION WAS WHOLLY, AND 33.0 BILLION
PARTIALLY TAX-EXEMPT.  STATISTICAL ABSTRACT OF THE UNITED STATES
372(1948). 

FN8  IN THIS CASE, THE RECORD DOES NOT DISCLOSE HOW PETITIONER
DISPOSED OF THE BONDS.  IF FOR SOME REASON HE HAD SOLD THEM AFTER SIX
MONTHS AT A PRICE ABOVE 138, HIS CAPITAL GAIN WOULD HAVE EXCEEDED THE
DEDUCTION HE TOOK ON THE BOND PREMIUM.  THIS POSSIBILITY IS NOT MERELY
THEORETICAL, FOR THE BONDS IN FACT STOOD ABOVE 138 FOR OVER A YEAR,
STARTING IN AUGUST, 1945. 

FN9  PETITIONER CITES H.R. REP. NO. 2333, 77TH CONG., 2D SESS.
47(1942), AND THE STATEMENTS OF JOHN O'BRIEN, 1 HEARINGS BEFORE SENATE
COMMITTEE ON FINANCE ON H.R. 7378, 77TH CONG., 2D SESS. 52(1942), AND
RANDOLPH PAUL, 1 HEARINGS BEFORE HOUSE COMMITTEE ON WAYS AND MEANS ON
REVENUE REVISION OF 1942, 77TH CONG., 2D SESS. 90(1942).  NONE OF THESE
CAN BE TAKEN AS A CLEAR STATEMENT EXCLUDING PREMIUM REFLECTING
FINANCIAL INDUCEMENTS OTHER THAN THE INTEREST RATE. 

FN10  E.G., "WHEN BONDS SELL AT A PRICE GREATER THAN PAR, THEY ARE
SAID TO SELL AT A PREMIUM ...."  FINANCIAL HANDBOOK 1210(3D ED. 1948);
"...  BOND PREMIUM - THE AMOUNT BY WHICH ISSUE PRICE, OR COST AT LATER
DATE, EXCEEDS MATURITY VALUE  ...."  PATON, ADVANCED ACCOUNTING
197(1941); GROSSMAN, INVESTMENT PRINCIPLES AND PRACTICE 14(1939);
NOBLE, ACCOUNTING PRINCIPLES 447(4TH ED. 1945).  AND SEE OLD COLONY R.
CO. V. COMMISSIONER, 284 U.S. 552, 555(1932); NEW YORK LIFE INS. CO. V.
EDWARDS, 271 U.S. 109, 116(1926); 4 BOGERT, TRUSTS AND TRUSTEES, SEC.
831(1935); 2 SCOTT ON TRUSTS SEC. 239.2(1939). 

FN11  SEC. E.G., 1 DEWING, FINANCIAL POLICY OF CORPORATIONS 662(4TH
ED. 1941); SALIERS AND HOLMES, BASIC ACCOUNTING PRINCIPLES 509(1937);
4(PT. 1) BOGERT, TRUSTS AND TRUSTEES 319(1935); 2 SCOTT ON TRUSTS
1337(1939); WILLIAMS, ARE CONVERTIBLES NOW ATTRACTIVE?  83 MAG.  OF
WALL ST. 134(1948). 

FN12  CRANE V. COMMISSIONER, 331 U.S. 1, 6-7(1947); HELVERING V.
FLACCUS OAK LEATHER CO., 313 U.S. 247, 249(1941); HELVERING V. SAN
JOAQUIN FRUIT & INVESTMENT CO., 297 U.S. 496, 499(1936); LANG V.
COMMISSIONER, 289 U.S. 109, 111(1933); CF. ATLANTIC COAST LINE R. CO.
V. PHILLIPS, 332 U.S. 168, 171(1947). 

MR. JUSTICE BLACK DISSENTS.  HE BELIEVES THAT THIS CASE SHOULD BE
DECIDED IN ACCORDANCE WITH, AND FOR THE REASONS GIVEN BY, THE OPINION
OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN COMMISSIONER V.
SHOONG, 177 F.2D 131(1949). 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :







SWEATT V. PAINTER, 339 U.S. 629 


NO. 44.  ARGUED APRIL 4, 1950.  - DECIDED JUNE 5, 1950.  - REVERSED. 


PETITIONER WAS DENIED ADMISSION TO THE STATE-SUPPORTED UNIVERSITY OF
TEXAS LAW SCHOOL, SOLELY BECAUSE HE IS A NEGRO AND STATE LAW FORBIDS
THE ADMISSION OF NEGROES TO THAT LAW SCHOOL.  HE WAS OFFERED, BUT HE
REFUSED, ENROLLMENT IN A SEPARATE LAW SCHOOL NEWLY ESTABLISHED BY THE
STATE FOR NEGROES.  THE UNIVERSITY OF TEXAS LAW SCHOOL HAS 16 FULL-TIME
AND THREE PART-TIME PROFESSORS, 850 STUDENTS, A LIBRARY OF 65,000
VOLUMES, A LAW REVIEW, MOOT COURT FACILITIES, SCHOLARSHIP FUNDS, AN
ORDER OF THE COIF AFFILIATION, MANY DISTINGUISHED ALUMNI, AND MUCH
TRADITION AND PRESTIGE.  THE SEPARATE LAW SCHOOL FOR NEGROES HAS FIVE
FULL-TIME PROFESSORS, 23 STUDENTS, A LIBRARY OF 16,500 VOLUMES, A
PRACTICE COURT, A LEGAL AID ASSOCIATION AND ONE ALUMNUS ADMITTED TO THE
TEXAS BAR; BUT IT EXCLUDES FROM ITS STUDENT BODY MEMBERS OF RACIAL
GROUPS WHICH NUMBER 85% OF THE POPULATION OF THE STATE AND WHICH
INCLUDE MOST OF THE LAWYERS, WITNESSES, JURORS, JUDGES, AND OTHER
OFFICIALS WITH WHOM PETITIONER WOULD DEAL AS A MEMBER OF THE TEXAS
BAR.  HELD:  THE LEGAL EDUCATION OFFERED PETITIONER IS NOT
SUBSTANTIALLY EQUAL TO THAT WHICH HE WOULD RECEIVE IF ADMITTED TO THE
UNIVERSITY OF TEXAS LAW SCHOOL; AND THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT REQUIRES THAT HE BE ADMITTED TO THE UNIVERSITY OF
TEXAS LAW SCHOOL.  PP. 631-636. 

SWEATT V. PAINTER ET AL. 

CERTIORARI TO THE SUPREME COURT OF TEXAS. 

A TEXAS TRIAL COURT FOUND THAT A NEWLY-ESTABLISHED STATE LAW SCHOOL
FOR NEGROES OFFERED PETITIONER "PRIVILEGES, ADVANTAGES, AND
OPPORTUNITIES FOR THE STUDY OF LAW SUBSTANTIALLY EQUIVALENT TO THOSE
OFFERED BY THE STATE TO WHITE STUDENTS AT THE UNIVERSITY OF TEXAS" AND
DENIED MANDAMUS TO COMPEL HIS ADMISSION TO THE UNIVERSITY OF TEXAS LAW
SCHOOL.  THE COURT OF CIVIL APPEALS AFFIRMED.  210 S.W.2D 442.  THE
TEXAS SUPREME COURT DENIED WRIT OF ERROR.  THIS COURT GRANTED
CERTIORARI.  338 U.S. 865.  REVERSED, P. 636. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE AND MCLAURIN V. OKLAHOMA STATE REGENTS, POST, P. 637,
PRESENT DIFFERENT ASPECTS OF THIS GENERAL QUESTION:  TO WHAT EXTENT
DOES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT LIMIT THE
POWER OF A STATE TO DISTINGUISH BETWEEN STUDENTS OF DIFFERENT RACES IN
PROFESSIONAL AND GRADUATE EDUCATION IN A STATE UNIVERSITY?  BROADER
ISSUES HAVE BEEN URGED FOR OUR CONSIDERATION, BUT WE ADHERE TO THE
PRINCIPLE OF DECIDING CONSTITUTIONAL QUESTIONS ONLY IN THE CONTEXT OF
THE PARTICULAR CASE BEFORE THE COURT.  WE HAVE FREQUENTLY REITERATED
THAT THIS COURT WILL DECIDE CONSTITUTIONAL QUESTIONS ONLY WHEN
NECESSARY TO THE DISPOSITION OF THE CASE AT HAND, AND THAT SUCH
DECISIONS WILL BE DRAWN AS NARROWLY AS POSSIBLE.  RESCUE ARMY V.
MUNICIPAL COURT, 331 U.S. 549(1947), AND CASES CITED THEREIN.  BECAUSE
OF THIS TRADITIONAL RELUCTANCE TO EXTEND CONSTITUTIONAL INTERPRETATIONS
TO SITUATIONS OR FACTS WHICH ARE NOT BEFORE THE COURT, MUCH OF THE
EXCELLENT RESEARCH AND DETAILED ARGUMENT PRESENTED IN THESE CASES IS
UNNECESSARY TO THEIR DISPOSITION. 

IN THE INSTANT CASE, PETITIONER FILED AN APPLICATION FOR ADMISSION TO
THE UNIVERSITY OF TEXAS LAW SCHOOL FOR THE FEBRUARY, 1946 TERM.  HIS
APPLICATION WAS REJECTED SOLELY BECAUSE HE IS A NEGRO.  FN1  PETITIONER
THEREUPON BROUGHT THIS SUIT FOR MANDAMUS AGAINST THE APPROPRIATE SCHOOL
OFFICIALS, RESPONDENTS HERE, TO COMPEL HIS ADMISSION.  AT THAT TIME,
THERE WAS NO LAW SCHOOL IN TEXAS WHICH ADMITTED NEGROES. 

THE STATE TRIAL COURT RECOGNIZED THAT THE ACTION OF THE STATE IN
DENYING PETITIONER THE OPPORTUNITY TO GAIN A LEGAL EDUCATION WHILE
GRANTING IT TO OTHERS DEPRIVED HIM OF THE EQUAL PROTECTION OF THE LAWS
GUARANTEED BY THE FOURTEENTH AMENDMENT.  THE COURT DID NOT GRANT THE
RELIEF REQUESTED, HOWEVER, BUT CONTINUED THE CASE FOR SIX MONTHS TO
ALLOW THE STATE TO SUPPLY SUBSTANTIALLY EQUAL FACILITIES.  AT THE
EXPIRATION OF THE SIX MONTHS, IN DECEMBER, 1946, THE COURT DENIED THE
WRIT ON THE SHOWING THAT THE AUTHORIZED UNIVERSITY OFFICIALS HAD
ADOPTED AN ORDER CALLING FOR THE OPENING OF A LAW SCHOOL FOR NEGROES
THE FOLLOWING FEBRUARY.  WHILE PETITIONER'S APPEAL WAS PENDING, SUCH A
SCHOOL WAS MADE AVAILABLE, BUT PETITIONER REFUSED TO REGISTER THEREIN. 
THE TEXAS COURT OF CIVIL APPEALS SET ASIDE THE TRIAL COURT'S JUDGMENT
AND ORDERED THE CAUSE "REMANDED GENERALLY TO THE TRIAL COURT FOR
FURTHER PROCEEDINGS WITHOUT PREJUDICE TO THE RIGHTS OF ANY PARTY TO
THIS SUIT." 

ON REMAND, A HEARING WAS HELD ON THE ISSUE OF THE EQUALITY OF THE
EDUCATIONAL FACILITIES AT THE NEWLY ESTABLISHED SCHOOL AS COMPARED WITH
THE UNIVERSITY OF TEXAS LAW SCHOOL.  FINDING THAT THE NEW SCHOOL
OFFERED PETITIONER "PRIVILEGES, ADVANTAGES, AND OPPORTUNITIES FOR THE
STUDY OF LAW SUBSTANTIALLY EQUIVALENT TO THOSE OFFERED BY THE STATE TO
WHITE STUDENTS AT THE UNIVERSITY OF TEXAS," THE TRIAL COURT DENIED
MANDAMUS.  THE COURT OF CIVIL APPEALS AFFIRMED.  210 S.W.2D 442(1948). 
PETITIONER'S APPLICATION FOR A WRIT OF ERROR WAS DENIED BY THE TEXAS
SUPREME COURT.  WE GRANTED CERTIORARI, 338 U.S. 865(1949), BECAUSE OF
THE MANIFEST IMPORTANCE OF THE CONSTITUTIONAL ISSUES INVOLVED. 

THE UNIVERSITY OF TEXAS LAW SCHOOL, FROM WHICH PETITIONER WAS
EXCLUDED, WAS STAFFED BY A FACULTY OF SIXTEEN FULL-TIME AND THREE PART
TIME PROFESSORS, SOME OF WHOM ARE NATIONALLY RECOGNIZED AUTHORITIES IN
THEIR FIELD.  ITS STUDENT BODY NUMBERED 850.  THE LIBRARY CONTAINED
OVER 65,000 VOLUMES.  AMONG THE OTHER FACILITIES AVAILABLE TO THE
STUDENTS WERE A LAW REVIEW, MOOT COURT FACILITIES, SCHOLARSHIP FUNDS,
AND ORDER OF THE COIF AFFILIATION.  THE SCHOOL'S ALUMNI OCCUPY THE MOST
DISTINGUISHED POSITIONS IN THE PRIVATE PRACTICE OF THE LAW AND IN THE
PUBLIC LIFE OF THE STATE.  IT MAY PROPERLY BE CONSIDERED ONE OF THE
NATION'S RANKING LAW SCHOOLS. 

THE LAW SCHOOL FOR NEGROES WHICH WAS TO HAVE OPENED IN FEBRUARY,
1947, WOULD HAVE HAD NO INDEPENDENT FACULTY OR LIBRARY.  THE TEACHING
WAS TO BE CARRIED ON BY FOUR MEMBERS OF THE UNIVERSITY OF TEXAS LAW
SCHOOL FACULTY, WHO WERE TO MAINTAIN THEIR OFFICES AT THE UNIVERSITY OF
TEXAS WHILE TEACHING AT BOTH INSTITUTIONS.  FEW OF THE 10,000 VOLUMES
ORDERED FOR THE LIBRARY HAD ARRIVED; FN2  NOR WAS THERE ANY FULL-TIME
LIBRARIAN.  THE SCHOOL LACKED ACCREDITATION. 

SINCE THE TRIAL OF THIS CASE, RESPONDENTS REPORT THE OPENING OF A LAW
SCHOOL AT THE TEXAS STATE UNIVERSITY FOR NEGROES.  IT IS APPARENTLY ON
THE ROAD TO FULL ACCREDITATION.  IT HAS A FACULTY OF FIVE FULL-TIME
PROFESSORS; A STUDENT BODY OF 23; A LIBRARY OF SOME 16,500 VOLUMES
SERVICED BY A FULL-TIME STAFF; A PRACTICE COURT AND LEGAL AID
ASSOCIATION; AND ONE ALUMNUS WHO HAS BECOME A MEMBER OF THE TEXAS BAR. 

WHETHER THE UNIVERSITY OF TEXAS LAW SCHOOL IS COMPARED WITH THE
ORIGINAL OR THE NEW LAW SCHOOL FOR NEGROES, WE CANNOT FIND SUBSTANTIAL
EQUALITY IN THE EDUCATIONAL OPPORTUNITIES OFFERED WHITE AND NEGRO LAW
STUDENTS BY THE STATE.  IN TERMS OF NUMBER OF THE FACULTY, VARIETY OF
COURSES AND OPPORTUNITY FOR SPECIALIZATION, SIZE OF THE STUDENT BODY,
SCOPE OF THE LIBRARY, AVAILABILITY OF LAW REVIEW AND SIMILAR
ACTIVITIES, THE UNIVERSITY OF TEXAS LAW SCHOOL IS SUPERIOR.  WHAT IS
MORE IMPORTANT, THE UNIVERSITY OF TEXAS LAW SCHOOL POSSESSES TO A FAR
GREATER DEGREE THOSE QUALITIES WHICH ARE INCAPABLE OF OBJECTIVE
MEASUREMENT BUT WHICH MAKE FOR GREATNESS IN A LAW SCHOOL.  SUCH
QUALITIES, TO NAME BUT A FEW, INCLUDE REPUTATION OF THE FACULTY,
EXPERIENCE OF THE ADMINISTRATION, POSITION AND INFLUENCE OF THE ALUMNI,
STANDING IN THE COMMUNITY, TRADITIONS AND PRESTIGE.  IT IS DIFFICULT TO
BELIEVE THAT ONE WHO HAD A FREE CHOICE BETWEEN THESE LAW SCHOOLS WOULD
CONSIDER THE QUESTION CLOSE. 

MOREOVER, ALTHOUGH THE LAW IS A HIGHLY LEARNED PROFESSION, WE ARE
WELL AWARE THAT IT IS AN INTENSELY PRACTICAL ONE.  THE LAW SCHOOL, THE
PROVING GROUND FOR LEGAL LEARNING AND PRACTICE, CANNOT BE EFFECTIVE IN
ISOLATION FROM THE INDIVIDUALS AND INSTITUTIONS WITH WHICH THE LAW
INTERACTS.  FEW STUDENTS AND NO ONE WHO HAS PRACTICED LAW WOULD CHOOSE
TO STUDY IN AN ACADEMIC VACUUM, REMOVED FROM THE INTERPLAY OF IDEAS AND
THE EXCHANGE OF VIEWS WITH WHICH THE LAW IS CONCERNED.  THE LAW SCHOOL
TO WHICH TEXAS IS WILLING TO ADMIT PETITIONER EXCLUDES FROM ITS STUDENT
BODY MEMBERS OF THE RACIAL GROUPS WHICH NUMBER 85% OF THE POPULATION OF
THE STATE AND INCLUDE MOST OF THE LAWYERS, WITNESSES, JURORS, JUDGES
AND OTHER OFFICIALS WITH WHOM PETITIONER WILL INEVITABLY BE DEALING
WHEN HE BECOMES A MEMBER OF THE TEXAS BAR.  WITH SUCH A SUBSTANTIAL AND
SIGNIFICANT SEGMENT OF SOCIETY EXCLUDED, WE CANNOT CONCLUDE THAT THE
EDUCATION OFFERED PETITIONER IS SUBSTANTIALLY EQUAL TO THAT WHICH HE
WOULD RECEIVE IF ADMITTED TO THE UNIVERSITY OF TEXAS LAW SCHOOL. 

IT MAY BE ARGUED THAT EXCLUDING PETITIONER FROM THAT SCHOOL IS NO
DIFFERENT FROM EXCLUDING WHITE STUDENTS FROM THE NEW LAW SCHOOL.  THIS
CONTENTION OVERLOOKS REALITIES.  IT IS UNLIKELY THAT A MEMBER OF A
GROUP SO DECISIVELY IN THE MAJORITY, ATTENDING A SCHOOL WITH RICH
TRADITIONS AND PRESTIGE WHICH ONLY A HISTORY OF CONSISTENTLY MAINTAINED
EXCELLENCE COULD COMMAND, WOULD CLAIM THAT THE OPPORTUNITIES AFFORDED
HIM FOR LEGAL EDUCATION WERE UNEQUAL TO THOSE HELD OPEN TO PETITIONER. 
THAT SUCH A CLAIM, IF MADE, WOULD BE DISHONORED BY THE STATE, IS NO
ANSWER.  "EQUAL PROTECTION OF THE LAWS IS NOT ACHIEVED THROUGH
INDISCRIMINATE IMPOSITION OF INEQUALITIES."  SHELLEY V. KRAEMER, 334
U.S. 1, 22(1948). 

IT IS FUNDAMENTAL THAT THESE CASES CONCERN RIGHTS WHICH ARE PERSONAL
AND PRESENT.  THIS COURT HAS STATED UNANIMOUSLY THAT "THE STATE MUST
PROVIDE (LEGAL EDUCATION) FOR (PETITIONER) IN CONFORMITY WITH THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND PROVIDE IT AS SOON AS
IT DOES FOR APPLICANTS OF ANY OTHER GROUP."  SIPUEL V. BOARD OF
REGENTS, 332 U.S. 631, 633(1948).  THAT CASE "DID NOT PRESENT THE ISSUE
WHETHER A STATE MIGHT NOT SATISFY THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT BY ESTABLISHING A SEPARATE LAW SCHOOL FOR
NEGROES."  FISHER V. HURST, 333 U.S. 147, 150(1948).  IN MISSOURI EX
REL. GAINES V. CANADA, 305 U.S. 337, 351(1938), THE COURT, SPEAKING
THROUGH CHIEF JUSTICE HUGHES, DECLARED THAT "PETITIONER'S RIGHT WAS A
PERSONAL ONE.  IT WAS AS AN INDIVIDUAL THAT HE WAS ENTITLED TO THE
EQUAL PROTECTION OF THE LAWS, AND THE STATE WAS BOUND TO FURNISH HIM
WITHIN ITS BORDERS FACILITIES FOR LEGAL EDUCATION SUBSTANTIALLY EQUAL
TO THOSE WHICH THE STATE THERE AFFORDED FOR PERSONS OF THE WHITE RACE,
WHETHER OR NOT OTHER NEGROES SOUGHT THE SAME OPPORTUNITY."  THESE ARE
THE ONLY CASES IN THIS COURT WHICH PRESENT THE ISSUE OF THE
CONSTITUTIONAL VALIDITY OF RACE DISTINCTIONS IN STATE-SUPPORTED
GRADUATE AND PROFESSIONAL EDUCATION. 

IN ACCORDANCE WITH THESE CASES, PETITIONER MAY CLAIM HIS FULL
CONSTITUTIONAL RIGHT:  LEGAL EDUCATION EQUIVALENT TO THAT OFFERED BY
THE STATE TO STUDENTS OF OTHER RACES.  SUCH EDUCATION IS NOT AVAILABLE
TO HIM IN A SEPARATE LAW SCHOOL AS OFFERED BY THE STATE.  WE CANNOT,
THEREFORE, AGREE WITH RESPONDENTS THAT THE DOCTRINE OF PLESSY V.
FERGUSON, 163 U.S. 537(1896), REQUIRES AFFIRMANCE OF THE JUDGMENT
BELOW.  NOR NEED WE REACH PETITIONER'S CONTENTION THAT PLESSY V.
FERGUSON SHOULD BE REEXAMINED IN THE LIGHT OF CONTEMPORARY KNOWLEDGE
RESPECTING THE PURPOSES OF THE FOURTEENTH AMENDMENT AND THE EFFECTS OF
RACIAL SEGRETATION.  SEE SUPRA, P. 631. 

WE HOLD THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRES THAT PETITIONER BE ADMITTED TO THE UNIVERSITY OF TEXAS LAW
SCHOOL.  THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  IT APPEARS THAT THE UNIVERSITY HAS BEEN RESTRICTED TO WHITE
STUDENTS, IN ACCORDANCE WITH THE STATE LAW.  SEE TEX. CONST., ART. VII,
SECS. 7, 14; TEX. REV. CIV. STAT. (VERNON, 1925), ARTS. 2643B (SUPP.
1949), 2719, 2900. 

FN2  "STUDENTS OF THE INTERIM SCHOOL OF LAW OF THE TEXAS STATE
UNIVERSITY FOR NEGROES (LOCATED IN AUSTIN, WHEREAS THE PERMANENT SCHOOL
WAS TO BE LOCATED AT HOUSTON) SHALL HAVE USE OF THE STATE LAW LIBRARY
IN THE CAPITOL BUILDING.  ...  "  TEX. LAWS 1947, C. 29, SEC. 11, TEX.
REV. CIV. STAT. (VERNON, 1949 SUPP.), NOTE TO ART. 2643B.  IT IS NOT
CLEAR THAT THIS PRIVILEGE WAS ANYTHING MORE THAN WAS EXTENDED TO ALL
CITIZENS OF THE STATE. 
..END :


















MCLAURIN V. OKLAHOMA STATE REGENTS, 339 U.S. 637 


NO. 34.  ARGUED APRIL 3-4, 1950.  - DECIDED JUNE 5, 1950.  - 87 F.SUPP. 
528, REVERSED. 


APPELLANT, A NEGRO CITIZEN OF OKLAHOMA POSSESSING A MASTER'S DEGREE,
WAS ADMITTED TO THE GRADUATE SCHOOL OF THE STATE-SUPPORTED UNIVERSITY
OF OKLAHOMA AS A CANDIDATE FOR A DOCTORATE IN EDUCATION AND WAS
PERMITTED TO USE THE SAME CLASSROOM, LIBRARY AND CAFETERIA AS WHITE
STUDENTS.  PURSUANT TO A REQUIREMENT OF STATE LAW THAT THE INSTRUCTION
OF NEGROES IN INSTITUTIONS OF HIGHER EDUCATION BE "UPON A SEGREGATED
BASIS," HOWEVER, HE WAS ASSIGNED TO A SEAT IN THE CLASSROOM IN A ROW
SPECIFIED FOR NEGRO STUDENTS, WAS ASSIGNED TO A SPECIAL TABLE IN THE
LIBRARY, AND, ALTHOUGH PERMITTED TO EAT IN THE CAFETERIA AT THE SAME
TIME AS OTHER STUDENTS, WAS ASSIGNED TO A SPECIAL TABLE THERE.  HELD:
THE CONDITIONS UNDER WHICH APPELLANT IS REQUIRED TO RECEIVE HIS
EDUCATION DEPRIVE HIM OF HIS PERSONAL AND PRESENT RIGHT TO THE EQUAL
PROTECTION OF THE LAWS; AND THE FOURTEENTH AMENDMENT PRECLUDES SUCH
DIFFERENCES IN TREATMENT BY THE STATE BASED UPON RACE.  PP. 638-642. 

(A)  THE RESTRICTIONS IMPOSED UPON APPELLANT IMPAIR AND INHIBIT HIS
ABILITY TO STUDY, TO ENGAGE IN DISCUSSIONS AND EXCHANGE VIEWS WITH
OTHER STUDENTS, AND, IN GENERAL, TO LEARN HIS PROFESSION.  PP. 640
641. 

(B)  THAT APPELLANT MAY STILL BE SET APART BY HIS FELLOW STUDENTS AND
MAY BE IN NO BETTER POSITION WHEN THESE RESTRICTIONS ARE REMOVED IS
IRRELEVANT, FOR THERE IS A CONSTITUTIONAL DIFFERENCE BETWEEN
RESTRICTIONS IMPOSED BY THE STATE WHICH PROHIBIT THE INTELLECTUAL
COMMINGLING OF STUDENTS AND THE REFUSAL OF STUDENTS TO COMMINGLE WHERE
THE STATE PRESENTS NO SUCH BAR.  P. 641. 

(C)  HAVING BEEN ADMITTED TO A STATE-SUPPORTED GRADUATE SCHOOL,
APPELLANT MUST RECEIVE THE SAME TREATMENT AT THE HANDS OF THE STATE AS
STUDENTS OF OTHER RACES.  P. 642. 

MCLAURIN V. OKLAHOMA STATE REGENTS FOR HIGHER EDUCATION ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA. 

THE PROCEEDINGS BELOW ARE STATED IN THE OPINION.  THE JUDGMENT BELOW
IS REVERSED, P. 642. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE, WE ARE FACED WITH THE QUESTION WHETHER A STATE MAY,
AFTER ADMITTING A STUDENT TO GRADUATE INSTRUCTION IN ITS STATE
UNIVERSITY, AFFORD HIM DIFFERENT TREATMENT FROM OTHER STUDENTS SOLELY
BECAUSE OF HIS RACE.  WE DECIDE ONLY THIS ISSUE; SEE SWEATT V. PAINTER,
ANTE, P. 629. 

APPELLANT IS A NEGRO CITIZEN OF OKLAHOMA.  POSSESSING A MASTER'S
DEGREE, HE APPLIED FOR ADMISSION TO THE UNIVERSITY OF OKLAHOMA IN ORDER
TO PURSUE STUDIES AND COURSES LEADING TO A DOCTORATE IN EDUCATION.  AT
THAT TIME, HIS APPLICATION WAS DENIED, SOLELY BECAUSE OF HIS RACE.  THE
SCHOOL AUTHORITIES WERE REQUIRED TO EXCLUDE HIM BY THE OKLAHOMA
STATUTES, 70 OKLA. STAT. (1941) SECS. 455, 456, 457, WHICH MADE IT A
MISDEMEANOR TO MAINTAIN OR OPERATE, TEACH OR ATTEND A SCHOOL AT WHICH
BOTH WHITES AND NEGROES ARE ENROLLED OR TAUGHT.  APPELLANT FILED A
COMPLAINT REQUESTING INJUNCTIVE RELIEF, ALLEGING THAT THE ACTION OF THE
SCHOOL AUTHORITIES AND THE STATUTES UPON WHICH THEIR ACTION WAS BASED
WERE UNCONSTITUTIONAL AND DEPRIVED HIM OF THE EQUAL PROTECTION OF THE
LAWS.  CITING OUR DECISIONS IN MISSOURI EX REL. GAINES V. CANADA, 305
U.S. 337(1938), AND SIPUEL V. BOARD OF REGENTS, 332 U.S. 631(1948), A
STATUTORY THREE-JUDGE DISTRICT COURT HELD THAT THE STATE HAD A
CONSTITUTIONAL DUTY TO PROVIDE HIM WITH THE EDUCATION HE SOUGHT AS SOON
AS IT PROVIDED THAT EDUCATION FOR APPLICANTS OF ANY OTHER GROUP.  IT
FURTHER HELD THAT TO THE EXTENT THE OKLAHOMA STATUTES DENIED HIM
ADMISSION THEY WERE UNCONSTITUTIONAL AND VOID.  ON THE ASSUMPTION,
HOWEVER, THAT THE STATE WOULD FOLLOW THE CONSTITUTIONAL MANDATE, THE
COURT REFUSED TO GRANT THE INJUNCTION, RETAINING JURISDICTION OF THE
CAUSE WITH FULL POWER TO ISSUE ANY NECESSARY AND PROPER ORDERS TO
SECURE MCLAURIN THE EQUAL PROTECTION OF THE LAWS.  87 F.SUPP.  526. 

FOLLOWING THIS DECISION, THE OKLAHOMA LEGISLATURE AMENDED THESE
STATUTES TO PERMIT THE ADMISSION OF NEGROES TO INSTITUTIONS OF HIGHER
LEARNING ATTENDED BY WHITE STUDENTS, IN CASES WHERE SUCH INSTITUTIONS
OFFERED COURSES NOT AVAILABLE IN THE NEGRO SCHOOLS.  THE AMENDMENT
PROVIDED, HOWEVER, THAT IN SUCH CASES THE PROGRAM OF INSTRUCTION "SHALL
BE GIVEN AT SUCH COLLEGES OR INSTITUTIONS OF HIGHER EDUCATION UPON A
SEGREGATED BASIS."  FN1  APPELLANT WAS THEREUPON ADMITTED TO THE
UNIVERSITY OF OKLAHOMA GRADUATE SCHOOL.  IN APPARENT CONFORMITY WITH
THE AMENDMENT, HIS ADMISSION WAS MADE SUBJECT TO "SUCH RULES AND
REGULATIONS AS TO SEGREGATION AS THE PRESIDENT OF THE UNIVERSITY SHALL
CONSIDER TO AFFORD TO MR. G. W. MCLAURIN SUBSTANTIALLY EQUAL
EDUCATIONAL OPPORTUNITIES AS ARE AFFORDED TO OTHER PERSONS SEEKING THE
SAME EDUCATION IN THE GRADUATE COLLEGE," A CONDITION WHICH DOES NOT
APPEAR TO HAVE BEEN WITHDRAWN.  THUS HE WAS REQUIRED TO SIT APART AT A
DESIGNATED DESK IN AN ANTEROOM ADJOINING THE CLASSROOM; TO SIT AT A
DESIGNATED DESK ON THE MEZZANINE FLOOR OF THE LIBRARY, BUT NOT TO USE
THE DESKS IN THE REGULAR READING ROOM; AND TO SIT AT A DESIGNATED TABLE
AND TO EAT AT A DIFFERENT TIME FROM THE OTHER STUDENTS IN THE SCHOOL
CAFETERIA. 

TO REMOVE THESE CONDITIONS, APPELLANT FILED A MOTION TO MODIFY THE
ORDER AND JUDGMENT OF THE DISTRICT COURT.  THAT COURT HELD THAT SUCH
TREATMENT DID NOT VIOLATE THE PROVISIONS OF THE FOURTEENTH AMENDMENT
AND DENIED THE MOTION.  87 F.SUPP.  528.  THIS APPEAL FOLLOWED. 

IN THE INTERVAL BETWEEN THE DECISION OF THE COURT BELOW AND THE
HEARING IN THIS COURT, THE TREATMENT AFFORDED APPELLANT WAS ALTERED. 
FOR SOME TIME, THE SECTION OF THE CLASSROOM IN WHICH APPELLANT SAT WAS
SURROUNDED BY A RAIL ON WHICH THERE WAS A SIGN STATING, "RESERVED FOR
COLORED," BUT THESE HAVE BEEN REMOVED.  HE IS NOW ASSIGNED TO A SEAT IN
THE CLASSROOM IN A ROW SPECIFIED FOR COLORED STUDENTS; HE IS ASSIGNED
TO A TABLE IN THE LIBRARY ON THE MAIN FLOOR; AND HE IS PERMITTED TO EAT
AT THE SAME TIME IN THE CAFETERIA AS OTHER STUDENTS, ALTHOUGH HERE
AGAIN HE IS ASSIGNED TO A SPECIAL TABLE. 

IT IS SAID THAT THE SEPARATIONS IMPOSED BY THE STATE IN THIS CASE ARE
IN FORM MERELY NOMINAL.  MCLAURIN USES THE SAME CLASSROOM, LIBRARY AND
CAFETERIA AS STUDENTS OF OTHER RACES; THERE IS NO INDICATION THAT THE
SEATS TO WHICH HE IS ASSIGNED IN THESE ROOMS HAVE ANY DISADVANTAGE OF
LOCATION.  HE MAY WAIT IN LINE IN THE CAFETERIA AND THERE STAND AND
TALK WITH HIS FELLOW STUDENTS, BUT WHILE HE EATS HE MUST REMAIN APART. 

THESE RESTRICTIONS WERE OBVIOUSLY IMPOSED IN ORDER TO COMPLY, AS
NEARLY AS COULD BE, WITH THE STATUTORY REQUIREMENTS OF OKLAHOMA.  BUT
THEY SIGNIFY THAT THE STATE, IN ADMINISTERING THE FACILITIES IT AFFORDS
FOR PROFESSIONAL AND GRADUATE STUDY, SETS MCLAURIN APART FROM THE OTHER
STUDENTS.  THE RESULT IS THAT APPELLANT IS HANDICAPPED IN HIS PURSUIT
OF EFFECTIVE GRADUATE INSTRUCTION.  SUCH RESTRICTIONS IMPAIR AND
INHIBIT HIS ABILITY TO STUDY, TO ENGAGE IN DISCUSSIONS AND EXCHANGE
VIEWS WITH OTHER STUDENTS, AND, IN GENERAL, TO LEARN HIS PROFESSION. 

OUR SOCIETY GROWS INCREASINGLY COMPLEX, AND OUR NEED FOR TRAINED
LEADERS INCREASES CORRESPONDINGLY.  APPELLANT'S CASE REPRESENTS,
PERHAPS, THE EPITOME OF THAT NEED, FOR HE IS ATTEMPTING TO OBTAIN AN
ADVANCED DEGREE IN EDUCATION, TO BECOME, BY DEFINITION, A LEADER AND
TRAINER OF OTHERS.  THOSE WHO WILL COME UNDER HIS GUIDANCE AND
INFLUENCE MUST BE DIRECTLY AFFECTED BY THE EDUCATION HE RECEIVES. 
THEIR OWN EDUCATION AND DEVELOPMENT WILL NECESSARILY SUFFER TO THE
EXTENT THAT HIS TRAINING IS UNEQUAL TO THAT OF HIS CLASSMATES.  STATE
IMPOSED RESTRICTIONS WHICH PRODUCE SUCH INEQUALITIES CANNOT BE
SUSTAINED. 

IT MAY BE ARGUED THAT APPELLANT WILL BE IN NO BETTER POSITION WHEN
THESE RESTRICTIONS ARE REMOVED, FOR HE MAY STILL BE SET APART BY HIS
FELLOW STUDENTS.  THIS WE THINK IRRELEVANT.  THERE IS A VAST DIFFERENCE
- A CONSTITUTIONAL DIFFERENCE - BETWEEN RESTRICTIONS IMPOSED BY THE
STATE WHICH PROHIBIT THE INTELLECTUAL COMMINGLING OF STUDENTS, AND THE
REFUSAL OF INDIVIDUALS TO COMMINGLE WHERE THE STATE PRESENTS NO SUCH
BAR.  SHELLEY V. KRAEMER, 334 U.S. 1, 13-14(1948).  THE REMOVAL OF THE
STATE RESTRICTIONS WILL NOT NECESSARILY ABATE INDIVIDUAL AND GROUP
PREDILECTIONS, PREJUDICES AND CHOICES.  BUT AT THE VERY LEAST, THE
STATE WILL NOT BE DEPRIVING APPELLANT OF THE OPPORTUNITY TO SECURE
ACCEPTANCE BY HIS FELLOW STUDENTS ON HIS OWN MERITS. 

WE CONCLUDE THAT THE CONDITIONS UNDER WHICH THIS APPELLANT IS
REQUIRED TO RECEIVE HIS EDUCATION DEPRIVE HIM OF HIS PERSONAL AND
PRESENT RIGHT TO THE EQUAL PROTECTION OF THE LAWS.  SEE SWEATT V.
PAINTER, ANTE, P. 629.  WE HOLD THAT UNDER THESE CIRCUMSTANCES THE
FOURTEENTH AMENDMENT PRECLUDES DIFFERENCES IN TREATMENT BY THE STATE
BASED UPON RACE.  APPELLANT, HAVING BEEN ADMITTED TO A STATE-SUPPORTED
GRADUATE SCHOOL, MUST RECEIVE THE SAME TREATMENT AT THE HANDS OF THE
STATE AS STUDENTS OF OTHER RACES.  THE JUDGMENT IS REVERSED. 

FN1  THE AMENDMENT ADDS THE FOLLOWING PROVISO TO EACH OF THE SECTIONS
RELATING TO MIXED SCHOOLS: "PROVIDED, THAT THE PROVISIONS OF THIS
PARTICULAR DEGREE GIVEN AT STATE OWNED OR OPERATED COLLEGES OR
INSTITUTIONS OF HIGHER EDUCATION OF THIS STATE ESTABLISHED FOR AND/OR
USED BY THE WHITE RACE, WHERE SUCH PROGRAMS OF INSTRUCTION LEADING TO A
PARTICULAR DEGREE ARE NOT GIVEN AT COLLEGES OR INSTITUTIONS OF HIGHER
EDUCATION OF THIS STATE ESTABLISHED FOR AND/OR USED BY THE COLORED
RACE; PROVIDED FURTHER, THAT SAID PROGRAMS OF INSTRUCTION LEADING TO A
PARTICULAR DEGREE SHALL BE GIVEN AT SUCH COLLEGES OR INSTITUTIONS OF
HIGHER EDUCATION UPON A SEGREGATED BASIS."  70 OKLA. STAT. ANN. (1950)
SECS. 455, 456, 457.  SEGREGATED BASIS IS DEFINED AS "CLASSROOM
INSTRUCTION GIVEN IN SEPARATE CLASSROOMS, OR AT SEPARATE TIMES."  ID.
SEC. 455. 
..END :











TRAVELERS HEALTH ASSN. V. VIRGINIA, 339 U.S. 643 


NO. 76.  ARGUED NOVEMBER 15, 1949.  - REARGUED APRIL 17, 1950.  -
DECIDED JUNE 5, 1950.  - 188 VA. 877, 51 S.E.2D 263, AFFIRMED. 


IN A PROCEEDING UNDER SEC. 6 OF THE VIRGINIA "BLUE SKY LAW," THE STATE
CORPORATION COMMISSION ORDERED AN ASSOCIATION, LOCATED IN NEBRASKA AND
ENGAGED IN THE MAIL-ORDER HEALTH INSURANCE BUSINESS, AND ITS TREASURER
(APPELLANTS HERE) TO CEASE AND DESIST FROM FURTHER OFFERINGS OR SALES
OF CERTIFICATES OF INSURANCE TO VIRGINIA RESIDENTS UNTIL THE
ASSOCIATION HAD COMPLIED WITH THE ACT BY FURNISHING INFORMATION AS TO
ITS FINANCIAL CONDITION, CONSENTING TO SUIT AGAINST IT BY SERVICE OF
PROCESS ON THE SECRETARY OF THE COMMONWEALTH, AND OBTAINING A PERMIT. 
NOTICE OF THE PROCEEDING WAS SERVED ON APPELLANTS BY REGISTERED MAIL,
AS AUTHORIZED BY SEC. 6 WHEN OTHER FORMS OF SERVICE ARE UNAVAILABLE. 
THEY APPEARED SPECIALLY, CHALLENGED THE JURISDICTION OF THE STATE, AND
MOVED TO QUASH THE SERVICE OF SUMMONS.  ON RECOMMENDATIONS FROM
VIRGINIA MEMBERS, THE ASSOCIATION FOR MANY YEARS HAD BEEN ISSUING
INSURANCE CERTIFICATES TO RESIDENTS OF VIRGINIA, AND IT HAD
APPROXIMATELY 800 MEMBERS THERE.  IT HAD CAUSED CLAIMS FOR LOSSES TO BE
INVESTIGATED, AND THE VIRGINIA COURTS WERE OPEN TO IT FOR THE
ENFORCEMENT OF OBLIGATIONS OF CERTIFICATE HOLDERS.  HELD: 

1.  THE STATE HAS POWER TO ISSUE A CEASE AND DESIST ORDER TO ENFORCE
AT LEAST THE REQUIREMENT THAT THE ASSOCIATION CONSENT TO SUIT AGAINST
IT BY SERVICE OF PROCESS ON THE SECRETARY OF THE COMMONWEALTH.  PP. 646
647. 

2.  THE CONTACTS AND TIES OF APPELLANTS WITH VIRGINIA RESIDENTS,
TOGETHER WITH THAT STATE'S INTEREST IN FAITHFUL OBSERVANCE OF THE
CERTIFICATE OBLIGATIONS, JUSTIFY SUBJECTING APPELLANTS TO CEASE AND
DESIST PROCEEDINGS UNDER SEC. 6.  PP. 647-648. 

3.  VIRGINIA'S SUBJECTION OF THE ASSOCIATION TO THE JURISDICTION OF
THE STATE COMMISSION IN A SEC. 6 PROCEEDING IS CONSISTENT WITH FAIR
PLAY AND SUBSTANTIAL JUSTICE, AND IS NOT OFFENSIVE TO THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 649. 

4.  THE POWER OF THE STATE TO SUBJECT THE ASSOCIATION TO THE
JURISDICTION OF THE STATE COMMISSION AND TO AUTHORIZE A CEASE AND
DESIST ORDER UNDER SEC. 6 IS NOT VITIATED BY THE FACT THAT BUSINESS
ACTIVITIES CARRIED ON OUTSIDE OF THE STATE ARE AFFECTED.  P. 650. 

5.  SERVICE OF PROCESS ON APPELLANTS BY REGISTERED MAIL DID NOT
VIOLATE THE REQUIREMENTS OF DUE PROCESS.  PP. 650-651. 

TRAVELERS HEALTH ASSOCIATION ET AL. V. VIRGINIA EX REL. STATE
CORPORATION COMMISSION. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

AN ORDER OF THE VIRGINIA CORPORATION COMMISSION REQUIRING APPELLANTS
TO CEASE AND DESIST FROM OFFERING AND ISSUING, WITHOUT A PERMIT,
CERTIFICATES OF INSURANCE TO RESIDENTS OF THE STATE, WAS AFFIRMED BY
THE SUPREME COURT OF APPEALS.  188 VA. 877, 51 S.E.2D 263.  ON APPEAL
TO THIS COURT, AFFIRMED, P. 651. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN AN EFFORT TO PROTECT ITS CITIZENS FROM "UNFAIRNESS, IMPOSITION OR
FRAUD" IN SALES OF CERTIFICATES OF INSURANCE AND OTHER FORMS OF
SECURITIES, THE VIRGINIA "BLUE SKY LAW" REQUIRES THOSE SELLING OR
OFFERING SUCH SECURITIES TO OBTAIN A PERMIT FROM THE STATE CORPORATION
COMMISSION.  FN1  APPLICANTS FOR PERMITS MUST MEET COMPREHENSIVE
CONDITIONS:  THEY MUST, FOR EXAMPLE, PROVIDE DETAILED INFORMATION
CONCERNING THEIR SOLVENCY, AND MUST AGREE THAT SUITS CAN BE FILED
AGAINST THEM IN VIRGINIA BY SERVICE OF PROCESS ON THE SECRETARY OF THE
COMMONWEALTH.  FN2 

WHILE VIOLATION OF THE ACT IS A MISDEMEANOR PUNISHABLE BY CRIMINAL
SANCTIONS, SEC. 6 PROVIDES ANOTHER METHOD FOR ENFORCEMENT.  AFTER
NOTICE AND A HEARING "ON THE MERITS," THE STATE CORPORATION COMMISSION
IS AUTHORIZED TO ISSUE A CEASE AND DESIST ORDER RESTRAINING VIOLATIONS
OF THE ACT.  THE SECTION ALSO PROVIDES FOR SERVICE BY REGISTERED MAIL
WHERE OTHER TYPES OF SERVICE ARE UNAVAILABLE "BECAUSE THE OFFERING IS
BY ADVERTISEMENT AND/OR SOLICITATION THROUGH PERIODICALS, MAIL,
TELEPHONE, TELEGRAPH, RADIO, OR OTHER MEANS OF COMMUNICATION FROM
BEYOND THE LIMITS OF THE STATE ...  "  THE HIGHEST COURT OF VIRGINIA
REJECTED CONTENTIONS THAT THIS SECTION VIOLATES CONSTITUTIONAL
REQUIREMENTS OF DUE PROCESS, AND THE CASE IS PROPERLY HERE ON APPEAL
UNDER 28 U.S.C. SEC. 1257(2). 

IN THIS CASE CEASE AND DESIST PROCEEDINGS UNDER SEC. 6 WERE
INSTITUTED BY THE STATE CORPORATION COMMISSION AGAINST TRAVELERS HEALTH
ASSOCIATION AND AGAINST R. E. PRATT, AS TREASURER OF THE ASSOCIATION
AND IN HIS PERSONAL CAPACITY.  HAVING RECEIVED NOTICE BY REGISTERED
MAIL ONLY, THEY APPEARED "SPECIALLY" FOR "THE SOLE PURPOSE OF OBJECTING
TO THE ALLEGED JURISDICTION OF THE COMMONWEALTH OF VIRGINIA AND OF ITS
STATE CORPORATION COMMISSION, AND OF MOVING TO SET ASIDE AND QUASH
SERVICE OF SUMMONS  ...  "  THE AGREED STIPULATION OF FACTS AND CERTAIN
EXHIBITS OFFERED BY THE STATE CAN BE SUMMARIZED AS FOLLOWS: 

THE APPELLANT TRAVELERS HEALTH ASSOCIATION WAS INCORPORATED IN
NEBRASKA AS A NONPROFIT MEMBERSHIP ASSOCIATION IN 1904.  SINCE THAT
TIME ITS ONLY OFFICE HAS BEEN LOCATED IN OMAHA, FROM WHICH IT HAS
CONDUCTED A MAILORDER HEALTH INSURANCE BUSINESS.  NEW MEMBERS PAY AN
INITIATION FEE AND OBLIGATE THEMSELVES TO PAY PERIODIC ASSESSMENTS AT
THE OMAHA OFFICE.  THE FUNDS SO COLLECTED ARE USED FOR OPERATING
EXPENSES AND SICK BENEFITS TO MEMBERS.  THE ASSOCIATION HAS NO PAID
AGENTS; ITS NEW MEMBERS ARE USUALLY OBTAINED THROUGH THE UNPAID
ACTIVITIES OF THOSE ALREADY MEMBERS, WHO ARE ENCOURAGED TO RECOMMEND
THE ASSOCIATION TO FRIENDS AND SUBMIT THEIR NAMES TO THE HOME OFFICE. 
THE APPELLANT PRATT IN OMAHA MAILS SOLICITATIONS TO THESE PROSPECTS. 
HE ENCLOSES BLANK APPLICATIONS WHICH, IF SIGNED AND RETURNED TO THE
HOME OFFICE WITH THE REQUIRED FEE, USUALLY RESULT IN ELECTION OF
APPLICANTS AS MEMBERS.  CERTIFICATES ARE THEN MAILED, SUBJECT TO RETURN
WITHIN 10 DAYS "IF NOT SATISFACTORY."  TRAVELERS HAS SOLICITED VIRGINIA
MEMBERS IN THIS MANNER SINCE 1904, AND HAS CAUSED MANY SICK BENEFIT
CLAIMS TO BE INVESTIGATED.  WHEN THESE PROCEEDINGS WERE INSTITUTED, IT
HAD APPROXIMATELY 800 VIRGINIA MEMBERS. 

THE COMMISSION, HOLDING THAT THE FOREGOING FACTS SUPPORTED THE
STATE'S POWER TO ACT IN SEC. 6 PROCEEDINGS, OVERRULED APPELLANTS'
OBJECTION TO JURISDICTION AND THEIR MOTION TO QUASH SERVICE.  THE
ASSOCIATION AND ITS TREASURER WERE ORDERED TO CEASE AND DESIST FROM
FURTHER SOLICITATIONS OR SALES OF CERTIFICATES TO VIRGINIA RESIDENTS
"THROUGH MEDIUM OF ANY ADVERTISEMENT FROM WITHIN OR FROM WITHOUT THE
STATE, AND/OR THROUGH THE MAILS OR OTHERWISE, BY INTRA- OR INTER-STATE
COMMUNICATION,  ...  UNLESS AND UNTIL" IT OBTAINED AUTHORITY IN
ACCORDANCE WITH THE "BLUE SKY LAW."  THIS ORDER WAS AFFIRMED BY THE
VIRGINIA COURT OF APPEALS.  188 VA. 877, 882, 51 S.E.2D 263, 271. 

APPELLANTS DO NOT QUESTION THE VALIDITY OF THE VIRGINIA LAW "TO THE
EXTENT THAT IT PROVIDES THAT INDIVIDUAL AND CORPORATE RESIDENTS OF
OTHER STATES SHALL NOT COME INTO THE STATE FOR THE PURPOSE OF DOING
BUSINESS THERE WITHOUT FIRST SUBMITTING TO THE REGULATORY AUTHORITY OF
THE STATE."  AS TO SUCH STATE POWER SEE, E.G., HALL V. GEIGER-JONES
CO., 242 U.S. 539.  THEIR BASIC CONTENTION IS THAT ALL THEIR ACTIVITIES
TAKE PLACE IN NEBRASKA, AND THAT CONSEQUENTLY VIRGINIA HAS NO POWER TO
REACH THEM IN CEASE AND DESIST PROCEEDINGS TO ENFORCE ANY PART OF ITS
REGULATORY LAW.  WE CANNOT AGREE WITH THIS GENERAL DUE PROCESS
OBJECTION, FOR WE THINK THE STATE HAS POWER TO ISSUE A "CEASE AND
DESIST ORDER" ENFORCING AT LEAST THAT REGULATORY PROVISION REQUIRING
THE ASSOCIATION TO ACCEPT SERVICE OF PROCESS BY VIRGINIA CLAIMANTS ON
THE SECRETARY OF THE COMMONWEALTH. 

APPELLANTS' CHIEF RELIANCE FOR THE DUE PROCESS CONTENTION IS ON
MINNESOTA ASSN. V. BENN, 261 U.S. 140.  THERE A MINNESOTA ASSOCIATION
OBTAINED MEMBERS IN MONTANA BY THE SAME MAIL SOLICITATION PROCESS USED
BY TRAVELERS TO GET VIRGINIA MEMBERS.  THE CERTIFICATES ISSUED TO
MONTANA MEMBERS ALSO RESERVED THE RIGHT TO INVESTIGATE CLAIMS, ALTHOUGH
THE COURT POINTED OUT THAT BENN'S CLAIM HAD NOT BEEN INVESTIGATED. 
THIS COURT HELD THAT SINCE THE CONTRACTS WERE "EXECUTED AND TO BE
PERFORMED" IN MINNESOTA, THE ASSOCIATION WAS NOT "DOING BUSINESS" IN
MONTANA AND THEREFORE COULD NOT BE SUED IN MONTANA COURTS UNLESS
"CONSENT" TO MONTANA SUITS COULD BE IMPLIED.  THE COURT FOUND THE
CIRCUMSTANCES UNDER WHICH THE INSURANCE TRANSACTIONS TOOK PLACE
INSUFFICIENT TO SUPPORT SUCH AN IMPLICATION. 

BUT WHERE BUSINESS ACTIVITIES REACH OUT BEYOND ONE STATE AND CREATE
CONTINUING RELATIONSHIPS AND OBLIGATIONS WITH CITIZENS OF ANOTHER
STATE, COURTS NEED NOT RESORT TO A FICTIONAL "CONSENT" IN ORDER TO
SUSTAIN THE JURISDICTION OF REGULATORY AGENCIES IN THE LATTER STATE. 
AND IN CONSIDERING WHAT CONSTITUTES "DOING BUSINESS" SUFFICIENTLY TO
JUSTIFY REGULATION IN THE STATE WHERE THE EFFECTS OF THE "BUSINESS" ARE
FELT, THE NARROW GROUNDS RELIED ON BY THE COURT IN THE BENN CASE CANNOT
BE DEEMED CONTROLLING. 

IN OSBORN V. OZLIN, 310 U.S. 53, 62, WE RECOGNIZED THAT A STATE HAS A
LEGITIMATE INTEREST IN ALL INSURANCE POLICIES PROTECTING ITS RESIDENTS
AGAINST RISKS, AN INTEREST WHICH THE STATE CAN PROTECT EVEN THOUGH THE
"STATE ACTION MAY HAVE REPERCUSSIONS BEYOND STATE LINES  ...  "  AND IN
HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313, 316, WE REJECTED THE
CONTENTION, BASED ON THE BENN CASE AMONG OTHERS, THAT A STATE'S POWER
TO REGULATE MUST BE DETERMINED BY A "CONCEPTUALISTIC DISCUSSION OF
THEORIES OF THE PLACE OF CONTRACTING OR OF PERFORMANCE."  INSTEAD WE
ACCORDED "GREAT WEIGHT" TO THE "CONSEQUENCES" OF THE CONTRACTUAL
OBLIGATIONS IN THE STATE WHERE THE INSURED RESIDED AND THE "DEGREE OF
INTEREST" THAT STATE HAD IN SEEING THAT THOSE OBLIGATIONS WERE
FAITHFULLY CARRIED OUT.  AND IN INTERNATIONAL SHOE CO. V. WASHINGTON,
326 U.S. 310, 316, THIS COURT, AFTER REVIEWING PAST CASES, CONCLUDED:
"DUE PROCESS REQUIRES ONLY THAT IN ORDER TO SUBJECT A DEFENDANT TO A
JUDGMENT IN PERSONAM, IF HE BE NOT PRESENT WITHIN THE TERRITORY OF THE
FORUM, HE HAVE CERTAIN MINIMUM CONTACTS WITH IT SUCH THAT THE
MAINTENANCE OF THE SUIT DOES NOT OFFEND 'TRADITIONAL NOTIONS OF FAIR
PLAY AND SUBSTANTIAL JUSTICE.'" 

MEASURED BY THE PRINCIPLES OF THE OSBORN, HOOPESTON AND INTERNATIONAL
SHOE CASES, THE CONTACTS AND TIES OF APPELLANTS WITH VIRGINIA
RESIDENTS, TOGETHER WITH THAT STATE'S INTEREST IN FAITHFUL OBSERVANCE
OF THE CERTIFICATE OBLIGATIONS, JUSTIFY SUBJECTING APPELLANTS TO CEASE
AND DESIST PROCEEDINGS UNDER SEC. 6.  THE ASSOCIATION DID NOT ENGAGE IN
MERE ISOLATED OR SHORT-LIVED TRANSACTIONS.  ITS INSURANCE CERTIFICATES,
SYSTEMATICALLY AND WIDELY DELIVERED IN VIRGINIA FOLLOWING SOLICITATION
BASED ON RECOMMENDATIONS OF VIRGINIANS, CREATE CONTINUING OBLIGATIONS
BETWEEN THE ASSOCIATION AND EACH OF THE MANY CERTIFICATE HOLDERS IN THE
STATE.  APPELLANTS HAVE CAUSED CLAIMS FOR LOSSES TO BE INVESTIGATED AND
THE VIRGINIA COURTS WERE AVAILABLE TO THEM IN SEEKING TO ENFORCE
OBLIGATIONS CREATED BY THE GROUP OF CERTIFICATES.  SEE INTERNATIONAL
SHOE CO. V. WASHINGTON, SUPRA, AT 320. 

MOREOVER, IF VIRGINIA IS WITHOUT POWER TO REQUIRE THIS ASSOCIATION TO
ACCEPT SERVICE OF PROCESS ON THE SECRETARY OF THE COMMONWEALTH, THE
ONLY FORUM FOR INJURED CERTIFICATE HOLDERS MIGHT BE NEBRASKA.  HEALTH
BENEFIT CLAIMS ARE SELDOM SO LARGE THAT VIRGINIA POLICYHOLDERS COULD
AFFORD THE EXPENSE AND TROUBLE OF A NEBRASKA LAW SUIT.  IN ADDITION,
SUITS ON ALLEGED LOSSES CAN BE MORE CONVENIENTLY TRIED IN VIRGINIA
WHERE WITNESSES WOULD MOST LIKELY LIVE AND WHERE CLAIMS FOR LOSSES
WOULD PRESUMABLY BE INVESTIGATED.  SUCH FACTORS HAVE BEEN GIVEN GREAT
WEIGHT IN APPLYING THE DOCTRINE OF FORUM NON CONVENIENS.  SEE GULF OIL
CO. V. GILBERT, 330 U.S. 501, 508.  AND PRIOR DECISIONS OF THIS COURT
HAVE REFERRED TO THE UNWISDOM, UNFAIRNESS AND INJUSTICE OF PERMITTING
POLICYHOLDERS TO SEEK REDRESS ONLY IN SOME DISTANT STATE WHERE THE
INSURER IS INCORPORATED.  FN3 THE DUE PROCESS CLAUSE DOES NOT FORBID A
STATE TO PROTECT ITS CITIZENS FROM SUCH INJUSTICE. 

THERE IS, OF COURSE, ONE METHOD BY WHICH CLAIMANTS COULD RECOVER FROM
APPELLANTS IN VIRGINIA COURTS WITHOUT THE AID OF SUBSTITUTED SERVICE OF
PROCESS:  CERTIFICATE HOLDERS IN VIRGINIA COULD ALL BE GARNISHED TO THE
EXTENT OF THEIR OBLIGATIONS TO THE ASSOCIATION.  SEE HURON CORP. V.
LINCOLN CO., 312 U.S. 183, 193.  WHILE SUCH AN INDIRECT PROCEDURE WOULD
UNDENIABLY BE MORE TROUBLESOME TO CLAIMANTS THAN THE PLAN ADOPTED BY
THE STATE IN ITS "BLUE SKY LAW," IT WOULD CLEARLY BE EVEN MORE
HARASSING TO THE ASSOCIATION AND ITS VIRGINIA MEMBERS.  METAPHYSICAL
CONCEPTS OF "IMPLIED CONSENT" AND "PRESENCE" IN A STATE SHOULD NOT BE
SOLIDIFIED INTO A CONSTITUTIONAL BARRIER AGAINST VIRGINIA'S SIMPLE,
DIRECT AND FAIR PLAN FOR SERVICE OF PROCESS ON THE SECRETARY OF THE
COMMONWEALTH. 

WE HOLD THAT VIRGINIA'S SUBJECTION OF THIS ASSOCIATION TO THE
JURISDICTION OF THAT STATE'S CORPORATION COMMISSION IN A SEC. 6
PROCEEDING IS CONSISTENT WITH "FAIR PLAY AND SUBSTANTIAL JUSTICE," AND
IS NOT OFFENSIVE TO THE DUE PROCESS CLAUSE. 

APPELLANTS ALSO CONTEND THAT SEC. 6 AS HERE APPLIED VIOLATES DUE
PROCESS BECAUSE THE COMMISSION ORDER ATTEMPTS TO "DESTROY OR IMPAIR"
THEIR RIGHT TO MAKE CONTRACTS IN NEBRASKA WITH VIRGINIA RESIDENTS. 
INSOFAR AS THIS CONTENTION CAN BE RAISED IN A SPECIAL APPEARANCE MERELY
TO CONTEST JURISDICTION, IT IS ESSENTIALLY THE SAME AS THE DUE PROCESS
ISSUE DISCUSSED ABOVE.  FOR REASONS JUST GIVEN, VIRGINIA HAS POWER TO
SUBJECT TRAVELERS TO THE JURISDICTION OF ITS CORPORATION COMMISSION,
AND ITS CEASE AND DESIST PROVISIONS DESIGNED TO ACCOMPLISH THIS PURPOSE
"CAN NOT BE ATTACKED MERELY BECAUSE THEY AFFECT BUSINESS ACTIVITIES
WHICH ARE CARRIED ON OUTSIDE THE STATE."  HOOPESTON CANNING CO. V.
CULLEN, SUPRA, 320-321.  SEE ALSO OSBORN V. OZLIN, 310 U.S. 53, 62. 
THESE TWO OPINIONS MAKE CLEAR THAT ALLGEYER V. LOUISIANA, 165 U.S. 578,
REQUIRES NO DIFFERENT RESULT. 

APPELLANTS CONCEDE THAT IN THE OSBORN AND HOOPESTON CASES WE
SUSTAINED STATE LAWS PROVIDING PROTECTIVE STANDARDS FOR POLICYHOLDERS
IN THOSE STATES, EVEN THOUGH COMPLIANCE WITH THOSE STANDARDS BY THE
INSURANCE COMPANIES COULD HAVE REPERCUSSIONS ON SIMILAR OUT-OF-STATE
CONTRACTS.  IT IS ARGUED, HOWEVER, THAT THOSE CASES ARE DISTINGUISHABLE
BECAUSE THEY BOTH INVOLVED COMPANIES WHICH WERE "LICENSED TO DO
BUSINESS IN THE STATE OF THE FORUM AND WERE ACTUALLY DOING BUSINESS
WITHIN THE STATE  ...  "  BUT WHILE HOOPESTON CANNING CO. HAD DONE
BUSINESS IN NEW YORK UNDER AN OLD LAW, IT BROUGHT THE CASE HERE TO
CHALLENGE CERTAIN PROVISIONS OF A NEW LICENSING LAW WITH WHICH IT HAD
TO COMPLY IF IT WAS TO DO BUSINESS THERE IN THE FUTURE.  THUS IT WAS
SEEKING THE SAME KIND OF RELIEF THAT APPELLANTS SEEK HERE, AND FOR THE
SAME GENERAL PURPOSE.  WHAT WE THERE SAID AS TO NEW YORK'S POWER IS
EQUALLY APPLICABLE TO VIRGINIA'S POWER HERE. 

IT IS ALSO SUGGESTED THAT SERVICE OF PROCESS ON APPELLANTS BY
REGISTERED MAIL DOES NOT MEET DUE PROCESS REQUIREMENTS.  WHAT WE HAVE
SAID ANSWERS THIS CONTENTION INSOFAR AS IT ALLEGES A LACK OF STATE
JURISDICTION BECAUSE APPELLANTS WERE SERVED OUTSIDE VIRGINIA.  IF
SERVICE BY MAIL IS CHALLENGED AS NOT PROVIDING ADEQUATE AND REASONABLE
NOTICE, THE CONTENTION HAS BEEN ANSWERED BY INTERNATIONAL SHOE CO. V.
WASHINGTON, SUPRA, 320-321.  SEE ALSO MULLANE V. CENTRAL HANOVER BANK,
339 U.S. 306. 

THE DUE PROCESS QUESTIONS WE HAVE ALREADY DISCUSSED ARE THE ONLY
ALLEGED ERRORS RELIED ON IN APPELLANTS' BRIEF,  FN4  AND APPELLANTS'
SPECIAL APPEARANCE ONLY CHALLENGED STATE JURISDICTION AND THE SERVICE
OF PROCESS.  WE THEREFORE HAVE NO OCCASION TO DISCUSS THE SCOPE OF THE
COMMISSION'S ORDER, OR THE METHODS BY WHICH THE STATE MIGHT ATTEMPT TO
ENFORCE IT.  FN5  AFFIRMED.    FN1  ACTS OF THE GENERAL ASSEMBLY OF
VIRGINIA, 1928, C. 529, P. 1373, AS AMENDED, ACTS OF 1932, C. 236, P.
434; MICHIE'S 1942 CODE OF VIRGINIA, SEC. 3848(47) ET SEQ. 

FN2  MICHIE SEC. 3848(51), (55). 

FN3  LUMBERMEN'S INS. CO. V. MEYER, 197 U.S. 407, 418, 419; MUTUAL
LIFE INS. CO. V. SPRATLEY, 172 U.S. 602, 619; CF. INTERNATIONAL SHOE
CO. V. WASHINGTON, 326 U.S. 310, 319. 

FN4  ONE FEDERAL QUESTION SUGGESTED IN THE APPELLANTS' STATEMENT OF
JURISDICTION WAS THAT SEC. 6 AS INTERPRETED BY THE STATE COURT
INFRINGED FEDERAL CONTROL OF THE MAILS DELEGATED TO CONGRESS BY ART. I,
SEC. 8, CL. 7 OF THE UNITED STATES CONSTITUTION.  BUT APPELLANTS' BRIEF
ON SUBMISSION OF THE CASE DOES NOT INCLUDE THIS QUESTION IN THE
"SPECIFICATIONS OF ERRORS RELIED UPON" AND DOES NOT EVEN MENTION THAT
CONSTITUTIONAL CLAUSE. 

FN5  FOR EXAMPLES OF PROBLEMS WHICH MIGHT BE RAISED BY ATTEMPTS TO
IMPOSE PUNISHMENT FOR VIOLATION OF THE ORDER, SEE STRASSHEIM V. DAILY,
221 U.S. 280, 284-285; CF. HYATT V. CORKRAN, 188 U.S. 691, 712, 719. 
SUCH STATURE MIGHT BE ATTRIBUTED TO ITS PROVISION FOR GIVING A CEASE
AND DESIST ORDER "PUBLICITY  ... TO THE PUBLIC THROUGH THE PRESS OR
OTHERWISE AS THE COMMISSION MAY, IN ITS DISCRETION, DETERMINE TO BE
ADVISABLE FOR THE REASONABLE INFORMATION AND PROTECTION OF THE
PUBLIC." 

MR. JUSTICE DOUGLAS, CONCURRING. 

SINCE THE FORMULA ADOPTED BY THE COURT IS ADEQUATE TO DISPOSE OF THIS
CASE, I HAVE JOINED IN THE OPINION.  BUT I FEEL THAT THE TYPE OF
PROBLEM PRESENTED REQUIRES A MORE SELECTIVE TREATMENT.  HENCE MY
SEPARATE OPINION. 

VIRGINIA'S BLUE SKY LAW  FN1  IS A COMPREHENSIVE SCHEME FOR THE
PROTECTION OF THE STATE'S INVESTORS.  SECURITIES CAN BE OFFERED FOR
SALE IN THE STATE ONLY AFTER THE ISSUER OBTAINS A PERMIT.  FN2  TO GET
IT, THE APPLICANT MUST SUPPLY DETAILED INFORMATION ABOUT ITS SOLVENCY,
ITS EARNING RECORD, AND THE NATURE OF THE SECURITIES.  FN3  PROMOTERS
MAY BE REQUIRED TO SUPPLY A BOND.  FN4  APPLICANTS MUST APPOINT AN
AGENT, THE SECRETARY OF THE COMMONWEALTH, TO RECEIVE SERVICE OF
PROCESS.  FN5  ONLY AFTER PROOF OF THEIR GOOD CHARACTER AND FINANCIAL
RESPONSIBILITY ARE SECURITY SALESMEN LICENSED.  FN6  AFTER ISSUANCE,
THE STATE CORPORATION COMMISSION IS AUTHORIZED AGAIN TO INVESTIGATE THE
ISSUER WITH AN EYE TO POSSIBLE REVOCATION OF ITS PERMIT.  FN7 THESE ARE
THE HIGH POINTS OF THE COMPREHENSIVE REGULATION WHICH VIRGINIA SEEKS TO
APPLY TO APPELLANTS. 

THAT THE BUSINESS OF INSURANCE IS INTERSTATE COMMERCE IS ESTABLISHED
BY UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533. 
ANY DOUBTS ABOUT THE POWER OF A STATE TO EXCLUDE AN INTERSTATE
INSURANCE COMPANY WHICH REFUSES TO COMPLY WITH ITS REGULATORY LAWS WERE
DISPELLED BY THE PASSAGE OF THE MCCARRAN ACT.  59 STAT. 33, 15 U.S.C.
SECS. 1011-1015.  SEE ROBERTSON V. CALIFORNIA, 328 U.S. 440, 461, 462. 

THE REQUIREMENTS OF DUE PROCESS DO NOT, IN MY OPINION, PRECLUDE THE
EXTENSION OF VIRGINIA'S REGULATORY SCHEME TO APPELLANT.  I PUT TO ONE
SIDE THE CASE WHERE A POLICYHOLDER SEEKS TO SUE THE OUT-OF-STATE
COMPANY IN VIRGINIA.  HIS ABILITY TO SUE IS NOT NECESSARILY THE MEASURE
OF VIRGINIA'S POWER TO REGULATE, AS THE COURT SAID IN OLD WAYNE LIFE
ASSN. V. MCDONOUGH, 204 U.S. 8, 21.  IT IS THE NATURE OF THE STATE'S
ACTION THAT DETERMINES THE KIND OR DEGREE OF ACTIVITY IN THE STATE
NECESSARY FOR SATISFYING THE REQUIREMENTS OF DUE PROCESS.  WHAT IS
NECESSARY TO SUSTAIN A TAX OR TO MAINTAIN A SUIT BY A CREDITOR (SEE OLD
WAYNE LIFE ASSN. V. MCDONOUGH, SUPRA; PROVIDENT SAVINGS ASSN. V.
KENTUCKY, 239 U.S. 103, 114-116; ISAACS, AN ANALYSIS OF DOING BUSINESS,
25 COL. L. REV. 1018, 1024) IS NOT IN MY VIEW DETERMINATIVE WHEN THE
STATE SEEKS TO REGULATE SOLICITATION WITHIN ITS BORDERS. 

BLUE SKY LAWS ARE A WELL-RECOGNIZED EXERCISE OF THE POLICE POWER OF
THE STATES.  SEE HALL V. GEIGER-JONES CO., 242 U.S. 539, 552.  THE
WILES OF THE SALESMAN HAVE BEEN MANY; THE DEVICES TO AVOID STATE
REGULATION HAVE BEEN CLEVER AND CALCULATED.  ONE OF THOSE WHO CONTESTED
THE CONSTITUTIONALITY OF THE MICHIGAN BLUE SKY LAW IN MERRICK V. HALSEY
& CO., 242 U.S. 568, 573, HAD NO PLACE OF BUSINESS IN THE STATE AND WAS
NOT SENDING AGENTS INTO IT.  THE HISTORY OF THE VARIOUS METHODS USED TO
EVADE STATE REGULATION IS TOO RECENT TO REQUIRE EXTENDED COMMENT. 
INSTRUMENTALITIES OF INTERSTATE AND FOREIGN COMMERCE WERE EXTENSIVELY
EMPLOYED BY THOSE BEYOND THE REACH OF A STATE TO SELL SECURITIES TO ITS
CITIZENS.  SEE H.R. REP. NO. 85, 73D CONG., 1ST SESS. 10.  THE
SECURITIES ACT OF 1933(48 STAT. 74, 15 U.S.C. SEC. 77A ET SEQ.) WAS
PASSED TO FILL THE GAP.  FN8 

A STATE IS HELPLESS WHEN THE OUT-OF-STATE COMPANY OPERATES BEYOND THE
BORDERS, ESTABLISHES NO OFFICE IN THE STATE, AND HAS NO AGENTS,
SALESMEN, OR SOLICITORS TO OBTAIN BUSINESS FOR IT WITHIN THE STATE. 
THEN IT IS BEYOND THE REACH OF PROCESS.  IN THE PRESENT CASE, HOWEVER,
THAT IS ONLY THE FORMAL ARRANGEMENT.  THE ACTUAL ARRANGEMENT SHOWS A
METHOD OF SOLICITING BUSINESS WITHIN VIRGINIA AS ACTIVE, CONTINUOUS,
AND METHODICAL AS IT WOULD BE IF REGULAR AGENTS OR SOLICITORS WERE
EMPLOYED.  CF. HOOPESTON CO. V. CULLEN, 318 U.S. 313. 

PRACTICALLY ALL OF APPELLANTS' BUSINESS IN VIRGINIA ORIGINATES WITH
AND IS THE RESULT OF THE ACTIVITIES OF ITS VIRGINIA MEMBERS.  THE
RECOMMENDATION OF A MEMBER RELIEVES AN APPLICANT OF THE DUTY OF
FURNISHING ANY REFERENCE.  THOUGH THE OLD MEMBERS ARE NOT DESIGNATED AS
"AGENTS," IT "CLEARLY APPEARS," AS STATED BY THE SUPREME COURT OF
APPEALS, "THAT THE ASSOCIATION RELIES ALMOST EXCLUSIVELY ON THESE
ACTIVITIES OF ITS VIRGINIA MEMBERS TO BRING ABOUT AN EXPANSION OF ITS
VIRGINIA BUSINESS."  TRAVELERS HEALTH ASSN. V. VIRGINIA, 188 VA. 877,
887; 51 S.E.2D 263, 267.  THIS DEVICE FOR SOLICITING BUSINESS IN
VIRGINIA MAY BE UNCONVENTIONAL AND UNORTHODOX; BUT IT OPERATES
FUNCTIONALLY PRECISELY AS THOUGH APPELLANTS HAD FORMALLY DESIGNATED THE
VIRGINIA MEMBERS AS THEIR AGENTS.  THROUGH THESE PEOPLE APPELLANTS HAVE
REALISTICALLY ENTERED THE STATE, LOOKING FOR AND OBTAINING BUSINESS. 
WHETHER SUCH SOLICITATION IS ISOLATED OR CONTINUOUS, IT IS ACTIVITY
WHICH VIRGINIA CAN REGULATE.  SEE HOOPER V. CALIFORNIA, 155 U.S. 648,
658.  THE REQUIREMENTS OF DUE PROCESS MAY DEMAND MORE OR LESS  FN9
MINIMAL CONTACTS THAN ARE PRESENT HERE, DEPENDING ON WHAT THE PINCH OF
THE DECISION IS OR WHAT IT REQUIRES OF THE FOREIGN CORPORATION.  SEE
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310, 316-319.  WHERE THE
CORPORATE PROJECT ENTAILS THE USE OF ONE OR MORE PEOPLE IN THE STATE
FOR THE SOLICITATION OF BUSINESS, IN MY VIEW IT DOES NO VIOLENCE TO THE
TRADITIONAL CONCEPT OF DUE PROCESS TO ALLOW THE STATE TO PROVIDE
PROTECTIVE MEASURES GOVERNING THAT SOLICITATION.  THAT IS ALL THAT IS
DONE HERE. 

I CANNOT AGREE THAT THIS APPEAL IS PREMATURE.  VIRGINIA HAS PLACED AN
INJUNCTION ON APPELLANTS, AN INJUNCTION WHICH MAY HAVE NUMEROUS
CONSEQUENCES, E.G., CONTEMPT PROCEEDINGS.  THERE IS AN EXISTING
CONTROVERSY - REAL AND VITAL TO APPELLANTS. 

FN1  ACTS OF THE GENERAL ASSEMBLY OF VIRGINIA, 1928, C. 529, P. 1373,
AS AMENDED, ACTS OF 1932, C. 236, P. 434; MICHIE'S 1942 CODE OF
VIRGINIA, SEC. 3848(47) ET SEQ. 

FN2  MICHIE SEC. 3848(47). 

FN3  MICHIE SEC. 3848(51). 

FN4  MICHIE SEC. 3848(51)(R). 

FN5  MICHIE SEC. 3848(55). 

FN6  MICHIE SEC. 3848(50)(M). 

FN7  MICHIE SEC. 3848(53). 

FN8  BY SEC. 3(A)(8) INSURANCE POLICIES ISSUED BY A CORPORATION
SUBJECT TO THE SUPERVISION OF SPECIFIED STATE AGENCIES ARE EXEMPT FROM
THIS FEDERAL REGULATION.  SECTION 18 PROVIDES THAT THE ACT DOES NOT
AFFECT THE JURISDICTION OF ANY STATE AGENCY OVER A SECURITY OR A
PERSON. 

FN9  AS MR. JUSTICE RUTLEDGE SAID IN FRENE V. LOUISVILLE CEMENT CO.,
77 U.S. APP. D.C. 129, 134, 134 F.2D 511, 516, "  ...  SOME CASUAL OR
EVEN SINGLE ACTS DONE WITHIN THE BORDERS OF THE SOVEREIGNTY MAY CONFER
POWER TO ACQUIRE JURISDICTION OF THE PERSON, PROVIDED THERE IS ALSO
REASONABLE PROVISION FOR GIVING NOTICE OF THE SUIT IN ACCORDANCE WITH
MINIMAL DUE PROCESS REQUIREMENTS." 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

THE STATE CORPORATION COMMISSION OF VIRGINIA INSTITUTED THE
PROCEEDINGS LEADING TO THE CEASE AND DESIST ORDER ENTERED IN THE
INSTANT CASE UNDER SEC. 6 OF THE VIRGINIA SECURITIES LAW.  MICHIE'S VA.
CODE, 1942, SEC. 3848(52).  THAT SECTION PROVIDES FOR SERVICE BY
REGISTERED MAIL UPON PERSONS OR CORPORATIONS OFFERING SECURITIES
THROUGH THE MAILS OR BY OTHER MEANS OF COMMUNICATION.  AFTER HEARING,
THE COMMISSION IS AUTHORIZED TO ISSUE THE ORDER AND TO GIVE IT SUCH
PUBLICITY AS THE COMMISSION CONSIDERS DESIRABLE. 

IN THIS CASE NO ACTION HAS BEEN TAKEN UNDER SEC. 15 OF THE LAW WHICH
PROVIDES THAT VIOLATION OF THE STATUTE IS A MISDEMEANOR AND PUNISHABLE
BY FINE, OR UNDER SEC. 17 WHICH PROVIDES FOR THE IMPOSITION OF A FINE
UPON FAILURE TO COMPLY WITH A LAWFUL ORDER OF THE COMMISSION.  MICHIE'S
VA. CODE, 1942, SEC. 3848(61)(63).  THE COMMISSION HAS IN NO WAY
ATTEMPTED TO ENFORCE THE ORDER ISSUED BY THE COMMISSION AGAINST
APPELLANTS.  THEREFORE APPELLANTS HAVE NOT BEEN HURT, AND THE QUESTION
OF DUE PROCESS IS NOT REACHED.  IN THE SCHEME OF THE STATUTE, PUBLICITY
APPEARS TO BE THE SOLE SANCTION OF SEC. 6.  I KNOW OF NO REASON WHY
VIRGINIA MAY NOT GO THROUGH THIS SHADOW-BOXING PERFORMANCE IN ORDER TO
PUBLICIZE THE ACTIVITIES OF APPELLANTS IN VIRGINIA AND NOTIFY ITS
CITIZENS THAT APPELLANTS HAVE NOT QUALIFIED UNDER THE SECURITIES LAW. 
THAT IS ALL THE COMMISSION SAYS THAT IT IS DOING OR HAS THE POWER TO DO
UNDER SEC. 6.  THE COMMISSION'S VIEW OF THE NATURE OF THIS PROCEEDING -
A VIEW REITERATED BY VIRGINIA IN ITS BRIEF ON THE APPEAL TO THIS COURT
WAS STATED IN ITS OPINION: 

"RESPONDENTS RELY ON THE FACT THAT THEIR CONTACTS WITH CITIZENS OF
VIRGINIA ARE BY MAIL, THAT THEY ARE NOT DOING BUSINESS IN VIRGINIA AND
THAT THEY DO NOT ENTER VIRGINIA EITHER PERSONALLY OR BY AGENTS.  IN
SETTING UP THIS DEFENSE THEY LOSE SIGHT OF THE NATURE OF THIS ACTION. 
THEY ARE NOT CHARGED WITH DOING BUSINESS IN VIRGINIA BUT WITH OFFERING
AND ADVERTISING FOR SALE AND PROMOTING THE SALE OF INSURANCE CONTRACTS
IN VIRGINIA BY MAIL AND THE ACTION IS TO FORECLOSE THEM FROM THESE
ACTIVITIES.  WHETHER THE ACTION WILL SUFFICE TO ACTUALLY STOP THEM IS
BESIDE THE POINT.  IT WILL SUFFICE TO PUT THEM ON NOTICE OF PERTINENT
LAWS OF VIRGINIA, TO GIVE THEM AN OPPORTUNITY TO BE HEARD AND THE STATE
AN OPPORTUNITY TO DETERMINE THE FACTS, AND, IF, AFTER HEARING, A CEASE
AND DESIST ORDER IS ISSUED, THE COMMISSION WILL THEN BE AUTHORIZED TO
GIVE SUCH PUBLICITY TO THE ORDER AS IT SEES FIT FOR THE 'INFORMATION
AND PROTECTION OF THE PUBLIC.'" 

     .         .         .        .         . 

"NO WORD FOUND IN OR INFERENCE DERIVED FROM SECTION 6, AFORESAID, MAY
PROPERLY, IN OUR JUDGMENT, BE SAID TO IMPOSE PENALTIES UPON THE
RESPONDENTS.  ...  " 

.         .         .         .         . 

"THERE IS NO ELEMENT OF COMPULSION EXCEPT SUCH AS MAY FLOW FROM A
DREAD OF THE PUBLICITY ATTENDING SUCH AN ORDER.  IN SUCH CASES, THE
ONLY WEAPON AVAILABLE TO THE COMMONWEALTH IS TO PUBLICLY ADVISE THAT
THE SECURITIES OF THE RESPONDENT DO NOT BEAR THE STAMP OF THE STATE'S
APPROVAL AND ARE BEING PRESENTED TO THE PUBLIC WITHOUT REGARD TO THE
REGULATORY LAWS ENACTED TO PROTECT THEM.  SECTION 6, SUPRA, IMPOSES NO
PENALTIES, EXACTS NO DIRECT TOLL FROM THOSE AGAINST WHOM ITS ORDERS
PROCEED.  ...  " 

THE QUESTION OF SUBSTITUTED SERVICE ON THE SECRETARY OF THE
COMMONWEALTH IS NOT HERE IN ANY ASPECT.  AS FAR AS APPEARS, SERVICE IN
THIS MANNER IS NOT AUTHORIZED BY THE VIRGINIA STATUTES EXCEPT WHERE THE
NONRESIDENT HAS OPENED AND IS CONDUCTING A PLACE OF BUSINESS WITHIN THE
STATE.  MICHIE'S VA. CODE, 1942, SEC. 3848(55A.  UP TO THIS DATE
VIRGINIA HAS NOT CLAIMED THE POWER TO REQUIRE APPELLANTS, WHO DO
BUSINESS IN VIRGINIA ONLY BY MAIL, TO APPOINT THE SECRETARY OF THE
COMMONWEALTH AS THEIR AGENT FOR SERVICE OF PROCESS, NOR HAVE THE COURTS
OF VIRGINIA RENDERED JUDGMENT IN A SUIT WHERE SERVICE WAS MADE IN THAT
MANNER.  I DO NOT UNDERSTAND, THEREFORE, WHAT POSSIBLE APPLICATION THE
COURT'S REFERENCE TO SUBSTITUTED SERVICE ON THE SECRETARY OF THE
COMMONWEALTH COULD HAVE IN THIS CASE.  I WOULD ANSWER THE QUESTION OF
DUE PROCESS WHEN VIRGINIA HAS ATTEMPTED TO APPLY ITS PROCESS TO
APPELLANTS IN A PROCEEDING THAT HAS CONSEQUENCES OF A NATURE WHICH
ENTITLE A PERSON TO THE PROTECTION OF THE DUE PROCESS CLAUSE.  SEE
PARKER V. LOS ANGELES COUNTY, 338 U.S. 327.  I WOULD, THEREFORE,
DISMISS THE APPEAL. 

AS STATED, IT SEEMS TO ME THAT THE MAJORITY OPINION IS SAYING THAT
VIRGINIA HAS MORE POWER THAN IT CLAIMS IN THE INSTANT PROCEEDING. 
WHILE VIRGINIA HAS NOT ATTEMPTED TO DO MORE THAN PUBLICIZE THE
ACTIVITIES OF APPELLANTS IN THE STATE, I READ THE MAJORITY OPINION TO
INTIMATE THAT UNDER THE SERVICE BY REGISTERED LETTER VIRGINIA MIGHT GO
FURTHER.  THE CEASE AND DESIST ORDER ISSUED CANNOT VALIDLY COMPEL
APPELLANTS TO DESIGNATE THE SECRETARY OF THE COMMONWEALTH AS THEIR
AGENT FOR SERVICE OF PROCESS, ANY MORE THAN IT CAN CONSTITUTIONALLY BE
CONSIDERED AS AUTOMATICALLY ACCOMPLISHING THAT RESULT.  AN IN PERSONAM
JUDGMENT CANNOT BE BASED UPON SERVICE BY REGISTERED LETTER ON A
NONRESIDENT CORPORATION OR A NATURAL PERSON, NEITHER OF WHOM HAS EVER
BEEN WITHIN THE STATE OF VIRGINIA.  PENNOYER V. NEFF, 95 U.S. 714; OLD
WAYNE LIFE ASSN. V. MCDONOUGH, 204 U.S. 8, 22-23.  IF THAT MAY NOT BE
DONE DIRECTLY, IT MAY NOT BE DONE INDIRECTLY.  CERTAINLY SUCH SERVICE
CANNOT BE JUSTIFIED WHERE ITS PURPOSE IS TO MAKE SUBSTITUTED SERVICE
LEGAL IN THE FUTURE.  THESE NONRESIDENTS CANNOT BE BROUGHT IN THROUGH
SERVICE BY REGISTERED MAIL AND COMPELLED TO DESIGNATE THE SECRETARY OF
THE COMMONWEALTH AS THEIR AGENT FOR SERVICE OF PROCESS SO THAT
THEREAFTER SERVICE MAY BE EFFECTED UPON SUCH NONRESIDENTS BY SERVING
THE SECRETARY.  SO TO HOLD WOULD ALLOW THE STATE TO PULL ITSELF UP BY
ITS OWN BOOTSTRAPS.    SERVICE BY REGISTERED MAIL IS SAID BY THE
MAJORITY TO BE SUFFICIENT WHERE THE CORPORATION HAS "MINIMUM CONTACTS"
WITH THE STATE OF THE FORUM.  HOW MANY "CONTACTS" A CORPORATION OR
PERSON MUST HAVE BEFORE BEING SUBJECTED TO SUIT WE ARE NOT INFORMED. 
HERE ALL OF APPELLANTS' CONTACTS WITH THE RESIDENTS OF VIRGINIA WERE BY
MAIL.  NO AGENT OF APPELLANT CORPORATION HAS ENTERED THE STATE, NOR HAS
THE INDIVIDUAL APPELLANT.  THE CONTRACTS WERE MADE WHOLLY IN NEBRASKA. 
UNDER THESE CIRCUMSTANCES, I WOULD HOLD THAT APPELLANTS WERE NEVER
"PRESENT" IN VIRGINIA. 

"FOR THE TERMS 'PRESENT' OR 'PRESENCE' ARE USED MERELY TO SYMBOLIZE
THOSE ACTIVITIES OF THE CORPORATION'S AGENT WITHIN THE STATE WHICH
COURTS WILL DEEM TO BE SUFFICIENT TO SATISFY THE DEMANDS OF DUE
PROCESS."  INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310, 316
317. 

AS I UNDERSTAND THE INTERNATIONAL SHOE CO. CASE, THE MINIMUM CONTACTS
WHICH A CORPORATION HAS IN THE STATE MUST BE "ACTIVITIES OF THE
CORPORATION'S AGENT WITHIN THE STATE."  THERE WERE SUCH CONTACTS BY
AGENTS WITHIN THE STATE IN THAT CASE.  SERVICE WAS MADE, IN ADDITION TO
NOTICE BY REGISTERED LETTER, BY PERSONAL SERVICE WITHIN THE STATE UPON
ONE OF THOSE AGENTS.  SERVICE ON AN AGENT WITHIN THE JURISDICTION WOULD
SEEM TO ME INDISPENSABLE TO A JUDGMENT AGAINST A CORPORATION.  IT WOULD
SEEM TO BE AN A FORTIORI PROPOSITION THAT JUDGMENT COULD NOT BE
OBTAINED AGAINST A NATURAL PERSON WHO WAS NOT AVAILABLE FOR PERSONAL
SERVICE. 

WE ARE NOT DEALING HERE WITH THE POWER OF VIRGINIA TO REGULATE THE
TRANSACTION OF INSURANCE BUSINESS WITH ITS CITIZENS, AS WAS THE CASE IN
OSBORN V. OZLIN, 310 U.S. 53, AND HOOPESTON CO. V. CULLEN, 318 U.S.
313.  IN THE CASE AT BAR WE ARE CONCERNED ONLY WITH HOW VIRGINIA MAY
ENFORCE SUCH POWER AS IT HAS.  NO QUESTION OF THE SUFFICIENCY OF
SERVICE WAS INVOLVED IN EITHER THE OSBORN OR THE HOOPESTON CASE, BOTH
OF WHICH WERE BROUGHT AGAINST SOME OFFICER OF A STATE.  THE QUESTION IN
THOSE CASES WAS WHETHER THE STATE HAD POWER, AND NOT WHETHER, HAVING
THE POWER, IT HAD ALSO ACQUIRED JURISDICTION OF A DEFENDANT AGAINST
WHOM A JUDGMENT COULD BE RENDERED ENFORCING THAT POWER. 

I WOULD NOT ATTEMPT TO INSTRUCT VIRGINIA AS TO HOW TO PROTECT ITS
CITIZENS FROM THESE INTRUDERS FROM NEBRASKA.  BUT I DO NOT BELIEVE WE
SHOULD EVEN INTIMATE THAT JUDGMENTS IN PERSONAM MAY BE OBTAINED, BY THE
SIMPLE PROCESS OF SENDING A REGISTERED LETTER, AGAINST A CORPORATION
WHOSE AGENTS HAVE NEVER BEEN IN THE FORUM WHERE SUIT IS BROUGHT, OR
AGAINST A NATURAL PERSON WHO IS NOT PERSONALLY SERVED WITHIN THE
STATE. 

MR. JUSTICE REED AND MR. JUSTICE FRANKFURTER, AGREEING WITH THE COURT
IN REACHING THE MERITS, ON THE MERITS JOIN THIS DISSENT. 
..END :














QUICKSALL V. MICHIGAN, 339 U.S. 660 


NO. 33.  ARGUED FEBRUARY 6, 1950.  - DECIDED JUNE 5, 1950.  - 322 MICH.
351, 33 N.W.2D 904, AFFIRMED. 


UPON HIS PLEA OF GUILTY OF MURDER, PETITIONER WAS SENTENCED BY A
MICHIGAN STATE COURT TO IMPRISONMENT FOR LIFE.  THE STATE HAD LONG
BEFORE ABOLISHED CAPITAL PUNISHMENT.  ALMOST TEN YEARS LATER,
PETITIONER MOVED TO VACATE THE SENTENCE AND FOR A NEW TRIAL, CLAIMING
THAT A FEDERAL CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL HAD BEEN
INFRINGED AND THAT HIS PLEA OF GUILTY HAD BEEN INDUCED BY
MISREPRESENTATIONS BY THE PROSECUTING ATTORNEY AND THE SHERIFF.  THE
MOTION WAS HEARD BEFORE THE SAME JUDGE WHO HAD RECEIVED HIS PLEA OF
GUILTY AND SENTENCED HIM.  THE MOTION WAS DENIED AND THE STATE SUPREME
COURT AFFIRMED.  HELD:  UPON THE RECORD IN THIS CASE, PETITIONER HAS
FAILED TO SUSTAIN THE BURDEN OF PROVING SUCH A DISREGARD OF FUNDAMENTAL
FAIRNESS IN THE IMPOSITION OF PUNISHMENT BY THE STATE AS WOULD JUSTIFY
THIS COURT IN SETTING ASIDE THE SENTENCE AS VIOLATIVE OF THE DUE
PROCESS CLAUSE.  PP. 661-665. 

(A)  IN THE CIRCUMSTANCES OF THIS CASE, THE FAILURE OF THE RECORD TO
SHOW THAT PETITIONER WAS OFFERED COUNSEL DOES NOT OFFEND THE DUE
PROCESS CLAUSE.  PP. 665-666. 

(B)  WHEN A CRIME SUBJECT TO CAPITAL PUNISHMENT IS NOT INVOLVED, EACH
CASE DEPENDS ON ITS OWN FACTS.  P. 666. 

(C)  TO INVALIDATE A PLEA OF GUILTY, A STATE PRISONER MUST ESTABLISH
THAT AN INGREDIENT OF UNFAIRNESS ACTIVELY OPERATED IN THE PROCESS THAT
RESULTED IN HIS CONFINEMENT.  P. 666. 

QUICKSALL V. MICHIGAN. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

PETITIONER'S MOTION TO VACATE A SENTENCE OF LIFE IMPRISONMENT
THERETOFORE IMPOSED UPON HIM, AND FOR A NEW TRIAL, WAS DENIED BY A
MICHIGAN STATE COURT.  THE STATE SUPREME COURT AFFIRMED.  322 MICH.
351, 33 N.W.2D 904.  THIS COURT GRANTED CERTIORARI.  336 U.S. 916. 
AFFIRMED, P. 666. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS IN CUSTODY OF THE STATE OF MICHIGAN UNDER A SENTENCE OF
LIFE IMPRISONMENT FOR FIRST-DEGREE MURDER, CONFIRMED UPON COLLATERAL
ATTACK BY A JUDGMENT OF THE SUPREME COURT OF MICHIGAN, HERE
CHALLENGED.  HE CLAIMS THAT HE WAS DEPRIVED OF HIS RIGHT TO COUNSEL TO
THE EXTENT THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
SECURES THAT RIGHT.  THE GENERALIZATIONS THAT ARE RELEVANT TO SUCH A
CLAIM NO LONGER CALL FOR ELABORATION.  THEY HAVE BEEN SET FORTH IN A
SERIES OF RECENT OPINIONS.  FN1  IT IS NOW SETTLED THAT, AS TO ITS
ADMINISTRATION OF CRIMINAL JUSTICE, A STATE'S DUTY TO PROVIDE COUNSEL,
SO FAR AS THE UNITED STATES CONSTITUTION IMPOSES IT, IS BUT ONE ASPECT
OF THE COMPREHENDING GUARANTY OF THE DUE PROCESS CLAUSE OF A FAIR
HEARING ON AN ACCUSATION, INCLUDING ADEQUATE OPPORTUNITY TO MEET IT.
AND SO WE TURN TO THE FACTS OF THIS CASE. 

BY INFORMATION FILED IN THE CIRCUIT COURT FOR KALAMAZOO COUNTY,
MICHIGAN, ON JULY 16, 1937, CHARLES QUICKSALL, THE PETITIONER, WAS
CHARGED WITH THE MURDER OF ONE GRACE PARKER.  SHE WAS A MARRIED WOMAN,
AND QUICKSALL WAS HER PARAMOUR.  PETITIONER HAD BEEN A HOSPITAL
PATIENT, UNDER POLICE GUARD, BETWEEN THE TIME OF MRS. PARKER'S DEATH ON
JULY 2 AND JULY 15, WHEN HE WAS TAKEN BEFORE THE MUNICIPAL JUSTICE
COURT WHERE, AFTER WAIVING EXAMINATION, HE WAS BOUND OVER FOR TRIAL. 
ON ARRAIGNMENT THE NEXT DAY BEFORE THE KALAMAZOO CIRCUIT COURT HE
PLEADED GUILTY TO THE CHARGE OF MURDER.  THERE IS NO EVIDENCE THAT AT
THE TIME OF HIS PLEA PETITIONER REQUESTED COUNSEL OR THAT APPOINTED
COUNSEL WAS OFFERED HIM.  THE CIRCUMSTANCES ATTENDING THE PLEA WERE
THUS FORMALLY STATED BY THE JUDGE WHO RECEIVED IT: 

"THE RECORD MAY SHOW THAT THIS RESPONDENT (PETITIONER) HAS JUST
OFFERED TO PLEAD GUILTY AND HAS PLEADED GUILTY TO A CHARGE OF MURDER;
THAT AFTER A FULL STATEMENT BY THE RESPONDENT IN RESPONSE TO NUMEROUS
QUESTIONS BY THE COURT IN OPEN COURT AND AFTER A PRIVATE INTERVIEW WITH
RESPONDENT AT CHAMBERS, IN BOTH OF WHICH HE HAS FREELY AND FRANKLY
DISCUSSED THE DETAILS OF THIS HOMICIDE AS CLAIMED BY HIM, THE COURT
BEING CLEARLY SATISFIED THAT THE PLEA OF GUILTY IS MADE FREELY,
UNDERSTANDINGLY AND VOLUNTARILY, AN ORDER HAS BEEN ENTERED ACCEPTING
SUCH PLEA OF GUILTY."  FN2 

AS REQUIRED BY THE LOCAL LAW, THE COURT THEN PROCEEDED TO INQUIRE
INTO THE DEGREE OF CRIME.  MICH. STAT. ANN. SEC. 28.550(HENDERSON
1938).  THE COURSE OF THIS INQUIRY IS SHOWN BY A SUMMARY OF WHAT
DEVELOPED.  QUICKSALL, WHO WAS FORTY-FOUR YEARS OLD AT THE TIME, HAD
BEEN MARRIED AND DIVORCED TWICE.  HE HAD SERVED PENITENTIARY TERMS IN
OHIO AND MICHIGAN.  HE HAD LIVED WITH THE PARKERS IN OHIO AND IN
KALAMAZOO, AND HE HAD BECOME "INTIMATE" WITH MRS. PARKER.  SHE AND
QUICKSALL HAD MADE AN AGREEMENT THAT IF THEY "EVER GOT CAUGHT" IN THEIR
"UNLAWFUL INTIMATE RELATIONSHIP" THEY "WOULD DIE TOGETHER."  ABOUT A
WEEK BEFORE MRS. PARKER'S DEATH ON JULY 2, PETITIONER WAS ASKED BY HER
HUSBAND TO LEAVE HIS HOUSE, BUT ON THAT DAY, AT MRS. PARKER'S REQUEST,
HE RETURNED TO SEE HER.  SHE TOLD HIM THAT HER HUSBAND HAD THREATENED
TO LEAVE AND DIVORCE HER, AND SHE ASKED QUICKSALL TO KEEP THEIR
AGREEMENT TO DIE TOGETHER.  THEREUPON SHE PRODUCED A REVOLVER, AND
PETITIONER SHOT HER AND THEN HIMSELF.  NEIGHBORS WHO REACHED THE PARKER
HOUSE SHORTLY THEREAFTER SAW MRS. PARKER, VERY NEAR DEATH, LYING ON A
BED, WITH A REVOLVER NEAR HER.  ON BEING ASKED WHO SHOT HER, SHE
REPLIED, "CHARLEY DID."  PETITIONER WAS LYING ON THE FLOOR,
UNCONSCIOUS, NEXT TO THE BED.  A DEPUTY SHERIFF WHO SEARCHED THE
PREMISES FOUND A NOTE ON THE DRESSER IN THE BEDROOM READING:  "JULY 2,
1937.  I AM DYING, GRACE AND I TOGETHER, BECAUSE WE CANNOT LIVE APART. 
CHARLES QUICKSALL." 

AT THE CONCLUSION OF THESE PROCEEDINGS THE COURT STATED: 

"IN THIS CASE, THE RESPONDENT (PETITIONER) HAVING BEEN ARRAIGNED ON
THE INFORMATION CHARGING HIM WITH MURDER, AND HAVING PLEADED GUILTY
THERETO AND SAID PLEA OF GUILTY HAVING BEEN ACCEPTED BY THE COURT,
AFTER AN EXHAUSTIVE INTERVIEW WITH THE RESPONDENT BOTH IN OPEN COURT
AND AT CHAMBERS, AND THE COURT HAVING PROCEEDED WITH AN EXAMINATION OF
WITNESSES TO DETERMINE THE DEGREE OF THE CRIME, AFTER HEARING THE
TESTIMONY OF THE WITNESSES HORACE COBB, JESSIE PIERCE, CORA KETTER AND
CHARLES CONNER, AND THE TESTIMONY OF THE RESPONDENT, HIMSELF, UNSWORN,
REGARDING THE CIRCUMSTANCES OF THIS CRIME, AND IT APPEARING FROM THE
TESTIMONY OF SUCH WITNESSES AND FROM THE STATEMENT OF THE RESPONDENT
THAT THE KILLING WAS DELIBERATE AND PREMEDITATED, AND UNDER THE
TESTIMONY OF THE RESPONDENT HIMSELF THAT IT WAS IN PURSUANCE OF A
SUICIDE PACT, SO-CALLED, THE COURT FINDS AND DETERMINES THAT RESPONDENT
IS GUILTY OF MURDER IN THE FIRST DEGREE, AND IT IS, THEREFORE, ORDERED
AND ADJUDGED THAT RESPONDENT BE AND HE IS GUILTY OF MURDER IN THE FIRST
DEGREE." 

MICHIGAN, AS IS WELL KNOWN, HAVING LONG AGO ABOLISHED CAPITAL
PUNISHMENT, QUICKSALL WAS SENTENCED TO SOLITARY CONFINEMENT AT HARD
LABOR FOR LIFE.  MICH. STAT. ANN. SEC. 28.548(HENDERSON 1938). 

ALMOST TEN YEARS AFTER HIS SENTENCE, ON APRIL 18, 1947, THE
PETITIONER ASKED THE CIRCUIT COURT FOR KALAMAZOO COUNTY TO VACATE IT
AND TO GRANT HIM A NEW TRIAL.  HE CLAIMED THE SENTENCE HAD A
CONSTITUTIONAL INFIRMITY IN THAT HE DID NOT HAVE THE ASSISTANCE OF
COUNSEL AND WAS PREVENTED FROM COMMUNICATING WITH COUNSEL OF HIS CHOICE
WHILE HE WAS HOSPITALIZED.  HE ALSO CLAIMED THAT HIS PLEA OF GUILTY HAD
BEEN INDUCED BY MISREPRESENTATIONS ON THE PART OF THE PROSECUTING
ATTORNEY AND THE SHERIFF WHO, HE ASSERTED, HAD TOLD HIM THAT THE CHARGE
AGAINST HIM WAS MANSLAUGHTER FOR WHICH HIS SENTENCE WOULD BE FROM TWO
TO FIFTEEN YEARS. 

THE MOTION TO VACATE THE SENTENCE WAS HEARD BEFORE THE SAME JUDGE WHO
HAD RECEIVED HIS PLEA OF GUILTY AND SENTENCED HIM.  PETITIONER WAS
ASKED WHETHER HE DESIRED TO HAVE A LAWYER IN THIS PROCEEDING, AND HE
REPLIED THAT HE DID NOT:  "WELL, YOUR HONOR, IT TOOK ME A LONG TIME TO
PREPARE THE MOTION, AND I FIGURE THAT I WOULD BE JUST AS WELL QUALIFIED
TO PRESENT IT MYSELF."  IN ANSWERING QUESTIONS PROPOUNDED BY THE JUDGE,
PETITIONER ADMITTED THAT HE KNEW HE HAD BEEN BOUND OVER ON A MURDER
CHARGE.  HE ALSO RECALLED THAT AFTER THE JUDGE HAD INFORMED HIM THAT
HIS GUILT HAD BEEN DETERMINED TO BE OF MURDER IN THE FIRST DEGREE HE
WAS GIVEN FULL OPPORTUNITY TO SAY WHAT HE HAD TO SAY BEFORE SENTENCE
WAS IMPOSED, BUT HAD NOTHING TO SAY.  CF. CANIZIO V. NEW YORK, 327 U.S.
82.  HOWEVER, HE PROFESSED NOT TO BE ABLE TO RECALL DETAILS OF THE
PROCEEDINGS BECAUSE OF ILLNESS AT THE TIME.  A DEPUTY SHERIFF WHO HAD
GUARDED PETITIONER DURING HIS HOSPITALIZATION AFTER THE SHOOTING
TESTIFIED THAT ON THE FOLLOWING DAY PETITIONER HAD SAID TO HIM:  "HOW
LONG WILL I HAVE TO LAY HERE?  I WISH TO CHRIST IT HAD TAKEN EFFECT ON
ME LIKE IT DID ON HER.  IF I GET OVER THIS IT WILL MEAN LIFE FOR ME
ANYWAY."  NOTES MADE CONTEMPORANEOUSLY SUPPORTED THIS TESTIMONY.  THE
PROSECUTING ATTORNEY AT THE TIME OF SENTENCING WAS BY REASON OF
PARALYSIS UNAVAILABLE AS A WITNESS.  THE SHERIFF TESTIFIED THAT NEITHER
HE NOR THE PROSECUTING ATTORNEY, SO FAR AS HE HAD KNOWLEDGE, HAD
REFUSED PETITIONER PERMISSION TO COMMUNICATE WITH HIS FAMILY, FRIENDS,
OR A LAWYER.  PETITIONER CROSS-EXAMINED THE SHERIFF, BUT DECLINED TO
QUESTION THE DEPUTY SHERIFF. 

THE TRIAL JUDGE TOOK NO STOCK IN THE RECONSTRUCTING MEMORY OF THE
PETITIONER AND DENIED HIS MOTION.  THE SUPREME COURT OF MICHIGAN
AFFIRMED.  322 MICH. 351, 33 N.W.2D 904.  WE BROUGHT THE CASE HERE OUT
OF A ZEALOUS REGARD FOR DUE OBSERVANCE OF THE SAFEGUARDS OF THE
FOURTEENTH AMENDMENT IN THE ENFORCEMENT OF A STATE'S PENAL CODE.  336
U.S. 916.  THE RECORD EXACTS THE HOLDING THAT THE PETITIONER HAS FAILED
TO SUSTAIN THE BURDEN OF PROVING SUCH A DISREGARD OF FUNDAMENTAL
FAIRNESS IN THE IMPOSITION OF PUNISHMENT BY THE STATE AS ALONE WOULD
JUSTIFY THIS COURT TO INVALIDATE THE SENTENCE BY REASON OF THE DUE
PROCESS CLAUSE. 

PETITIONER MAKES NO CLAIM THAT HE DID NOT KNOW OF HIS RIGHT TO BE
ASSISTED BY COUNSEL, SEE MICH. STAT. ANN. SEC. 28.854(HENDERSON 1938),
AND IN VIEW OF HIS "INTELLIGENCE, HIS AGE, AND HIS EARLIER EXPERIENCES
IN COURT," THE SUPREME COURT OF MICHIGAN REJECTED THE NOTION THAT HE
WAS NOT AWARE OF HIS RIGHT TO BE REPRESENTED BY AN ATTORNEY.  322 MICH.
AT 355, 33 N.W.2D AT 906.  CF. GRYGER V. BURKE, 334 U.S. 728, 730. 
SINCE THE MICHIGAN COURTS DISBELIEVED PETITIONER'S ALLEGATIONS THAT HE
HAD NOT BEEN ALLOWED TO COMMUNICATE WITH HIS FAMILY, HIS FRIENDS OR A
LAWYER, AND NO REQUEST WAS MADE BY HIM FOR LEGAL AID, THE ONLY QUESTION
IS WHETHER, IN THE CIRCUMSTANCES OF THIS CASE, THE FAILURE OF THE
RECORD TO SHOW THAT HE WAS OFFERED COUNSEL OFFENDS THE DUE PROCESS
CLAUSE. 

AT LEAST "WHEN A CRIME SUBJECT TO CAPITAL PUNISHMENT IS NOT INVOLVED,
EACH CASE DEPENDS ON ITS OWN FACTS."  UVEGES V. PENNSYLVANIA, 335 U.S.
437, 441; BETTS V. BRADY, 316 U.S. 455, 462.  TO INVALIDATE A PLEA OF
GUILTY THE PRISONER MUST ESTABLISH THAT "FOR WANT OF BENEFIT OF COUNSEL
AN INGREDIENT OF UNFAIRNESS ACTIVELY OPERATED IN THE PROCESS THAT
RESULTED IN HIS CONFINEMENT."  FOSTER V. ILLINOIS, 332 U.S. 134, 137;
SEE GIBBS V. BURKE, 337 U.S. 773, 781.  HERE PETITIONER'S CLAIM THAT
THE CONSEQUENCES OF HIS PLEA OF GUILTY HAD BEEN MISREPRESENTED WAS
DISBELIEVED BY THE TRIBUNAL ESPECIALLY QUALIFIED TO SIT IN JUDGMENT
UPON ITS CREDIBILITY.  SEE WADE V. MAYO, 334 U.S. 672, 683-84.  IN THE
LIGHT OF WHAT EMERGED IN THIS PROCEEDING UPON A SCRUTINY OF WHAT TOOK
PLACE BEFORE THE SAME JUDGE TEN YEARS EARLIER, WHEN PETITIONER'S PLEA
OF GUILTY WAS TENDERED AND ACCEPTED, IT WOULD STULTIFY THE DUE PROCESS
CLAUSE TO FIND THAT ANY RIGHT OF THE PETITIONER WAS INFRINGED BY THE
SENTENCE WHICH HE INCURRED.  FN3  FOSTER V. ILLINOIS, SUPRA AT 138;
BUTE V. ILLINOIS, 333 U.S. 640, 670-74.  AFFIRMED. 

FN1  BETTS V. BRADY, 316 U.S. 455; CANIZIO V. NEW YORK, 327 U.S. 82;
CARTER V. ILLINOIS, 329 U.S. 173; DE MEERLEER V. MICHIGAN, 329 U.S.
663; FOSTER V. ILLINOIS, 332 U.S. 134; GAYES V. NEW YORK, 332 U.S. 145;
MARINO V. RAGEN, 332 U.S. 561; BUTE V. ILLINOIS, 333 U.S. 640; WADE V.
MAYO, 334 U.S. 672; GRYGER V. BURKE, 334 U.S. 728; TOWNSEND V. BURKE,
334 U.S. 736; UVEGES V. PENNSYLVANIA, 335 U.S. 437; GIBBS V. BURKE, 337
U.S. 773. 

FN2  MICH. STAT. ANN. SEC. 28.1058(HENDERSON 1938) PROVIDES:
"WHENEVER ANY PERSON SHALL PLEAD GUILTY TO AN INFORMATION FILED AGAINST
HIM IN ANY COURT, IT SHALL BE THE DUTY OF THE JUDGE OF SUCH COURT,
BEFORE PRONOUNCING JUDGMENT OR SENTENCE UPON SUCH PLEA, TO BECOME
SATISFIED AFTER SUCH INVESTIGATION AS HE MAY DEEM NECESSARY FOR THAT
PURPOSE RESPECTING THE NATURE OF THE CASE, AND THE CIRCUMSTANCES OF
SUCH PLEA, THAT SAID PLEA WAS MADE FREELY, WITH FULL KNOWLEDGE OF THE
NATURE OF THE ACCUSATION, AND WITHOUT UNDUE INFLUENCE.  AND WHENEVER
SAID JUDGE SHALL HAVE REASON TO DOUBT THE TRUTH OF SUCH PLEA OF GUILTY,
IT SHALL BE HIS DUTY TO VACATE THE SAME, DIRECT A PLEA OF NOT GUILTY TO
BE ENTERED AND ORDER A TRIAL OF THE ISSUE THUS FORMED." 

FN3  ASSERTIONS NOW MADE CONCERNING IRREGULARITIES IN THE HEARING ON
THE DEGREE OF THE CRIME WERE NOT URGED BEFORE THE MICHIGAN COURTS. 
THEY CANNOT BE CONSIDERED HERE FOR THE FIRST TIME, EVEN AS TO THEIR
SUPPOSED BEARING ON THE RIGHT TO COUNSEL. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :

















SKELLY OIL CO. V. PHILLIPS CO., 339 U.S. 667 


NO. 221.  ARGUED DECEMBER 9, 1949.  - DECIDED JUNE 5, 1950. 


RESPONDENT OIL COMPANY HAD CONTRACTS WITH THREE PRODUCERS TO PURCHASE
GAS FOR RESALE TO A PIPELINE COMPANY WHICH HAD APPLIED TO THE FEDERAL
POWER COMMISSION FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
UNDER THE NATURAL GAS ACT.  EACH CONTRACT PROVIDED FOR TERMINATION BY
THE PRODUCER UPON NOTICE TO THE RESPONDENT AT ANY TIME AFTER DECEMBER
1, 1946, "BUT BEFORE THE ISSUANCE OF SUCH CERTIFICATE."  ON NOVEMBER
30, 1946, THE COMMISSION ORDERED THAT A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY BE ISSUED TO THE PIPELINE COMPANY, UPON
SPECIFIED TERMS AND CONDITIONS.  THE ORDER WAS NOT MADE PUBLIC UNTIL
DECEMBER 2, 1946, ON WHICH DAY THE PRODUCERS SEVERALLY NOTIFIED
RESPONDENT OF THE TERMINATION OF THEIR CONTRACTS.  ALLEGING THAT A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, "WITHIN THE MEANING OF
SAID NATURAL GAS ACT AND SAID CONTRACTS," HAD BEEN ISSUED PRIOR TO THE
ATTEMPT TO TERMINATE THE CONTRACTS, RESPONDENT SUED THE THREE PRODUCERS
IN THE FEDERAL DISTRICT COURT UNDER THE DECLARATORY JUDGMENT ACT FOR A
DECLARATION THAT THE CONTRACTS WERE STILL "IN EFFECT AND BINDING UPON
THE PARTIES THERETO."  THE DECREE OF THE DISTRICT COURT THAT THE
CONTRACTS HAD NOT BEEN EFFECTIVELY TERMINATED AND WERE STILL IN FULL
FORCE AND EFFECT WAS AFFIRMED BY THE COURT OF APPEALS.  HELD: 

1.  THE MATTER IN CONTROVERSY AS TO WHICH THE RESPONDENT ASKED FOR A
DECLARATORY JUDGMENT IS NOT ONE THAT "ARISES UNDER" THE LAWS OF THE
UNITED STATES; AND SINCE, AS TO TWO OF THE DEFENDANT PRODUCERS, THERE
WAS NO DIVERSITY OF CITIZENSHIP, THE PROCEEDINGS AGAINST THEM SHOULD
HAVE BEEN DISMISSED FOR WANT OF JURISDICTION.  PP. 671-674. 

(A)  BY THE DECLARATORY JUDGMENT ACT, CONGRESS ENLARGED THE RANGE OF
REMEDIES AVAILABLE IN THE FEDERAL COURTS BUT DID NOT EXTEND THEIR
JURISDICTION.  PP. 671-672. 

(B)  WHERE THE EXISTENCE OF A FEDERAL QUESTION IS THE BASIS OF
FEDERAL JURISDICTION, SUCH A FEDERAL QUESTION MUST BE PRESENTED BY THE
PLAINTIFF'S CLAIM ITSELF, UNAIDED BY ALLEGATIONS IN ANTICIPATION OF
DEFENSES WHICH MIGHT BE INTERPOSED.  P. 672. 

2.  THERE BEING DIVERSITY OF CITIZENSHIP IN THE CASE OF THE THIRD
PRODUCER DEFENDANT, THE DISTRICT COURT HAD JURISDICTION OF THE SUIT AS
TO IT.  P. 674. 

(A)  THERE BEING DIVERSITY OF CITIZENSHIP BETWEEN RESPONDENT AND THIS
DEFENDANT, AND THE VENUE BEING PROPERLY LAID IN THE STATE WHERE THE
SUIT WAS BROUGHT, THE CASE WAS PROPERLY IN THE DISTRICT COURT.  P.
674. 

(B)  THAT THE DECLARATORY REMEDY WHICH MAY BE GIVEN BY THE FEDERAL
COURT MAY NOT BE AVAILABLE IN THE STATE COURTS IS IMMATERIAL.  P. 674. 

3.  AS TO THE THIRD PRODUCER DEFENDANT, THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THE CAUSE IS REMANDED, IN ORDER THAT THE COURT
OF APPEALS, EITHER ITSELF OR BY SENDING THE CASE BACK TO THE DISTRICT
COURT, MAY FURTHER EXPLORE THE ISSUES THROUGH WAYS THAT MAY BE
APPROPRIATE.  PP. 674-679. 

SKELLY OIL CO. ET AL. V. PHILLIPS PETROLEUM CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

IN A SUIT UNDER THE FEDERAL DECLARATORY JUDGMENT ACT, THE DISTRICT
COURT DECREED THAT THE CONTRACTS BETWEEN RESPONDENT AND PETITIONERS HAD
NOT BEEN TERMINATED AND REMAINED IN FULL FORCE AND EFFECT.  THE COURT
OF APPEALS AFFIRMED.  174 F.2D 89.  THIS COURT GRANTED CERTIORARI.  338
U.S. 846.  AS TO ONE OF THE PETITIONERS, THE JUDGMENT IS VACATED AND
THE CAUSE REMANDED; AS TO THE OTHER TWO PETITIONERS, THE JUDGMENT IS
REVERSED WITH DIRECTIONS THAT THE CAUSE BE DISMISSED.  P. 679. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN 1945, MICHIGAN-WISCONSIN PIPE LINE COMPANY SOUGHT FROM THE FEDERAL
POWER COMMISSION A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY,
REQUIRED BY SEC. 7(C) OF THE NATURAL GAS ACT, 52 STAT. 825, AS AMENDED,
15 U.S.C. SEC. 717F (C), FOR THE CONSTRUCTION AND OPERATION OF A PIPE
LINE TO CARRY NATURAL GAS FROM TEXAS TO MICHIGAN AND WISCONSIN.  A
PREREQUISITE FOR SUCH A CERTIFICATE IS ADEQUATE RESERVES OF GAS.  TO
OBTAIN THESE RESERVES MICHIGAN-WISCONSIN ENTERED INTO AN AGREEMENT WITH
PHILLIPS PETROLEUM COMPANY ON DECEMBER 11, 1945, WHEREBY THE LATTER
UNDERTOOK TO MAKE AVAILABLE GAS FROM THE HUGOTON GAS FIELD, SPRAWLING
OVER KANSAS, OKLAHOMA AND TEXAS, WHICH IT PRODUCED OR PURCHASED FROM
OTHERS.  PHILLIPS HAD CONTRACTED WITH PETITIONERS, SKELLY OIL COMPANY,
STANOLIND OIL AND GAS COMPANY, AND MAGNOLIA PETROLEUM COMPANY, TO
PURCHASE GAS PRODUCED BY THEM IN THE HUGOTON FIELD FOR RESALE TO
MICHIGAN-WISCONSIN.  EACH CONTRACT PROVIDED THAT "IN THE EVENT MICHIGAN
WISCONSIN PIPE LINE COMPANY SHALL FAIL TO SECURE FROM THE FEDERAL POWER
COMMISSION ON OR BEFORE (OCTOBER 1, 1946) A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY FOR THE CONSTRUCTION AND OPERATION OF ITS
PIPE LINE, SELLER (A PETITIONER) SHALL HAVE THE RIGHT TO TERMINATE THIS
CONTRACT BY WRITTEN NOTICE TO BUYER (PHILLIPS) DELIVERED TO BUYER AT
ANY TIME AFTER DECEMBER 1, 1946, BUT BEFORE THE ISSUANCE OF SUCH
CERTIFICATE."  THE LEGAL SIGNIFICANCE OF THIS PROVISION IS AT THE CORE
OF THIS LITIGATION. 

THE FEDERAL POWER COMMISSION, IN RESPONSE TO THE APPLICATION OF
MICHIGAN-WISCONSIN, ON NOVEMBER 30, 1946, ORDERED THAT "A CERTIFICATE
OF PUBLIC CONVENIENCE AND NECESSITY BE AND IT IS HEREBY ISSUED TO
APPLICANT (MICHIGAN-WISCONSIN), UPON THE TERMS AND CONDITIONS OF THIS
ORDER," LISTING AMONG THE CONDITIONS THAT THERE BE NO TRANSPORTATION OR
SALE OF NATURAL GAS BY MEANS OF THE SANCTIONED FACILITIES UNTIL ALL
NECESSARY AUTHORIZATIONS WERE OBTAINED FROM THE STATE OF WISCONSIN AND
THE COMMUNITIES PROPOSED TO BE SERVED, THAT MICHIGAN-WISCONSIN SHOULD
HAVE THE APPROVAL OF THE SECURITIES AND EXCHANGE COMMISSION FOR ITS
PLAN OF FINANCING, THAT THE APPLICANT SHOULD FILE FOR THE APPROVAL OF
THE COMMISSION A SCHEDULE OF REASONABLE RATES, AND THAT THE SANCTIONED
FACILITIES SHOULD NOT BE USED FOR THE TRANSPORTATION OF GAS TO DETROIT
AND ANN ARBOR EXCEPT WITH DUE REGARD FOR THE RIGHTS AND DUTIES OF
PANHANDLE EASTERN PIPE LINE COMPANY, WHICH HAD INTERVENED BEFORE THE
FEDERAL POWER COMMISSION, IN ITS ESTABLISHED SERVICE FOR RESALE IN
THESE AREAS, SUCH RIGHTS AND DUTIES TO BE SET FORTH IN A SUPPLEMENTAL
ORDER.  IT WAS ALSO PROVIDED THAT MICHIGAN-WISCONSIN SHOULD HAVE
FIFTEEN DAYS FROM THE ISSUE OF THE SUPPLEMENTAL ORDER TO NOTIFY THE
COMMISSION WHETHER THE CERTIFICATE "AS HEREIN ISSUED IS ACCEPTABLE TO
IT."  FINALLY, THE COMMISSION'S ORDER PROVIDED THAT FOR PURPOSES OF
COMPUTING THE TIME WITHIN WHICH APPLICATIONS FOR REHEARING COULD BE
FILED, "THE DATE OF ISSUANCE OF THIS ORDER SHALL BE DEEMED TO BE THE
DATE OF ISSUANCE OF THE OPINIONS, OR OF THE SUPPLEMENTAL ORDER REFERRED
TO HEREIN, WHICHEVER MAY BE THE LATER."  5 F.P.C. 953, 954, 956. 

NEWS OF THE COMMISSION'S ACTION WAS RELEASED ON NOVEMBER 30, 1946,
BUT THE ACTUAL CONTENT OF THE ORDER WAS NOT MADE PUBLIC UNTIL DECEMBER
2, 1946.  PETITIONERS SEVERALLY, ON DECEMBER 2, 1946, GAVE NOTICE TO
PHILLIPS OF TERMINATION OF THEIR CONTRACTS ON THE GROUND THAT MICHIGAN
WISCONSIN HAD NOT RECEIVED A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY.  THEREUPON MICHIGAN-WISCONSIN AND PHILLIPS BROUGHT SUIT
AGAINST PETITIONERS IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OKLAHOMA.  ALLEGING THAT A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY, "WITHIN THE MEANING OF SAID NATURAL GAS ACT AND SAID
CONTRACTS" HAD BEEN ISSUED PRIOR TO PETITIONERS' ATTEMPT AT TERMINATION
OF THE CONTRACTS, THEY INVOKED THE FEDERAL DECLARATORY JUDGMENT ACT FOR
A DECLARATION THAT THE CONTRACTS WERE STILL "IN EFFECT AND BINDING UPON
THE PARTIES THERETO."  MOTIONS BY PETITIONERS TO HAVE MICHIGAN
WISCONSIN DROPPED AS A PARTY PLAINTIFF WERE SUSTAINED, BUT MOTIONS TO
DISMISS THE COMPLAINT FOR WANT OF JURISDICTION WERE DENIED.  THE CASE
THEN WENT TO THE MERITS, AND THE DISTRICT COURT DECREED THAT THE
CONTRACTS BETWEEN PHILLIPS AND PETITIONERS HAD NOT BEEN "EFFECTIVELY
TERMINATED AND THAT EACH OF SUCH CONTRACTS REMAIN IN FULL FORCE AND
EFFECT."  THE COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED, 174 F.2D
89, AND WE BROUGHT THE CASE HERE, 338 U.S. 846, BECAUSE IT RAISES IN
SHARP FORM THE QUESTION WHETHER A SUIT LIKE THIS "ARISES UNDER THE
CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES," 28 U.S.C. SEC.
1331, SO AS TO ENABLE DISTRICT COURTS TO GIVE DECLARATORY RELIEF UNDER
THE DECLARATORY JUDGMENT ACT.  48 STAT. 955, AS AMENDED, NOW 28 U.S.C.
SEC. 2201. 

"(THE) OPERATION OF THE DECLARATORY JUDGMENT ACT IS PROCEDURAL
ONLY."  AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240.  CONGRESS
ENLARGED THE RANGE OF REMEDIES AVAILABLE IN THE FEDERAL COURTS BUT DID
NOT EXTEND THEIR JURISDICTION.  WHEN CONCERNED AS WE ARE WITH THE POWER
OF THE INFERIOR FEDERAL COURTS TO ENTERTAIN LITIGATION WITHIN THE
RESTRICTED AREA TO WHICH THE CONSTITUTION AND ACTS OF CONGRESS CONFINE
THEM, "JURISDICTION" MEANS THE KINDS OF ISSUES WHICH GIVE RIGHT OF
ENTRANCE TO FEDERAL COURTS.  JURISDICTION IN THIS SENSE WAS NOT ALTERED
BY THE DECLARATORY JUDGMENT ACT.  PRIOR TO THAT ACT, A FEDERAL COURT
WOULD ENTERTAIN A SUIT ON A CONTRACT ONLY IF THE PLAINTIFF ASKED FOR AN
IMMEDIATELY ENFORCEABLE REMEDY LIKE MONEY DAMAGES OR AN INJUNCTION, BUT
SUCH RELIEF COULD ONLY BE GIVEN IF THE REQUISITES OF JURISDICTION, IN
THE SENSE OF A FEDERAL RIGHT OR DIVERSITY, PROVIDED FOUNDATION FOR
RESORT TO THE FEDERAL COURTS.  THE DECLARATORY JUDGMENT ACT ALLOWED
RELIEF TO BE GIVEN BY WAY OF RECOGNIZING THE PLAINTIFF'S RIGHT EVEN
THOUGH NO IMMEDIATE ENFORCEMENT OF IT WAS ASKED.  BUT THE REQUIREMENTS
OF JURISDICTION - THE LIMITED SUBJECT MATTERS WHICH ALONE CONGRESS HAD
AUTHORIZED THE DISTRICT COURTS TO ADJUDICATE - WERE NOT IMPLIEDLY
REPEALED OR MODIFIED.  SEE GREAT LAKES DREDGE & DOCK CO. V. HUFFMAN,
319 U.S. 293, 300; COLEGROVE V. GREEN, 328 U.S. 549, 551-52. 

IF PHILLIPS SOUGHT DAMAGES FROM PETITIONERS OR SPECIFIC PERFORMANCE
OF THEIR CONTRACTS, IT COULD NOT BRING SUIT IN A UNITED STATES DISTRICT
COURT ON THE THEORY THAT IT WAS ASSERTING A FEDERAL RIGHT.  AND FOR THE
SIMPLE REASON THAT SUCH A SUIT WOULD "ARISE" UNDER THE STATE LAW
GOVERNING THE CONTRACTS.  WHATEVER FEDERAL CLAIM PHILLIPS MAY BE ABLE
TO URGE WOULD IN ANY EVENT BE INJECTED INTO THE CASE ONLY IN
ANTICIPATION OF A DEFENSE TO BE ASSERTED BY PETITIONERS.  "NOT EVERY
QUESTION OF FEDERAL LAW EMERGING IN A SUIT IS PROOF THAT A FEDERAL LAW
IS THE BASIS OF THE SUIT."  GULLY V. FIRST NATIONAL BANK, 299 U.S. 109,
115; COMPARE 28 U.S.C. SEC. 1257, WITH 28 U.S.C. SEC. 1331.  EVER SINCE
METCALF V. WATERTOWN, 128 U.S. 586, 589, IT HAS BEEN SETTLED DOCTRINE
THAT WHERE A SUIT IS BROUGHT IN THE FEDERAL COURTS "UPON THE SOLE
GROUND THAT THE DETERMINATION OF THE SUIT DEPENDS UPON SOME QUESTION OF
A FEDERAL NATURE, IT MUST APPEAR, AT THE OUTSET, FROM THE DECLARATION
OR THE BILL OF THE PARTY SUING, THAT THE SUIT IS OF THAT CHARACTER." 
BUT "A SUGGESTION OF ONE PARTY, THAT THE OTHER WILL OR MAY SET UP A
CLAIM UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES, DOES NOT
MAKE THE SUIT ONE ARISING UNDER THAT CONSTITUTION OR THOSE LAWS." 
TENNESSEE V. UNION & PLANTERS' BANK, 152 U.S. 454, 464.  THE
PLAINTIFF'S CLAIM ITSELF MUST PRESENT A FEDERAL QUESTION "UNAIDED BY
ANYTHING ALLEGED IN ANTICIPATION OF AVOIDANCE OF DEFENSES WHICH IT IS
THOUGHT THE DEFENDANT MAY INTERPOSE."  TAYLOR V. ANDERSON, 234 U.S. 74,
75-76; LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY, 211 U.S. 149, 152. 

THESE DECISIONS REFLECT THE CURRENT OF JURISDICTIONAL LEGISLATION
SINCE THE ACT OF MARCH 3, 1875, 18 STAT. 470, FIRST ENTRUSTED TO THE
LOWER FEDERAL COURTS WIDE JURISDICTION IN CASES "ARISING UNDER THIS
CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES."  U.S.
CONST. ART. III, SEC. 2.  "THE CHANGE IS IN ACCORDANCE WITH THE GENERAL
POLICY OF THESE ACTS, MANIFEST UPON THEIR FACE, AND OFTEN RECOGNIZED BY
THIS COURT, TO CONTRACT THE JURISDICTION OF THE CIRCUIT COURTS (WHICH
BECAME THE DISTRICT COURTS) OF THE UNITED STATES."  TENNESSEE V. UNION
& PLANTERS' BANK, SUPRA AT 462.  SEE ALSO ARKANSAS V. KANSAS & TEXAS
COAL CO., 183 U.S. 185, 188, AND GULLY V. FIRST NATIONAL BANK, SUPRA AT
112-14.  WITH EXCEPTIONS NOT NOW RELEVANT CONGRESS HAS NARROWED THE
OPPORTUNITIES FOR ENTRANCE INTO THE FEDERAL COURTS, AND THIS COURT HAS
BEEN MORE CAREFUL THAN IN EARLIER DAYS IN ENFORCING THESE
JURISDICTIONAL LIMITATIONS.  SEE GULLY V. FIRST NATIONAL BANK, SUPRA AT
113. 

TO BE OBSERVANT OF THESE RESTRICTIONS IS NOT TO INDULGE IN FORMALISM
OR STERILE TECHNICALITY.  IT WOULD TURN INTO THE FEDERAL COURTS A VAST
CURRENT OF LITIGATION INDUBITABLY ARISING UNDER STATE LAW, IN THE SENSE
THAT THE RIGHT TO BE VINDICATED WAS STATE-CREATED, IF A SUIT FOR A
DECLARATION OF RIGHTS COULD BE BROUGHT INTO THE FEDERAL COURTS MERELY
BECAUSE AN ANTICIPATED DEFENSE DERIVED FROM FEDERAL LAW.  NOT ONLY
WOULD THIS UNDULY SWELL THE VOLUME OF LITIGATION IN THE DISTRICT COURTS
BUT IT WOULD ALSO EMBARRASS THOSE COURTS - AND THIS COURT ON POTENTIAL
REVIEW - IN THAT MATTERS OF LOCAL LAW MAY OFTEN BE INVOLVED, AND THE
DISTRICT COURTS MAY EITHER HAVE TO DECIDE DOUBTFUL QUESTIONS OF STATE
LAW OR HOLD CASES PENDING DISPOSITION OF SUCH STATE ISSUES BY STATE
COURTS.  TO SANCTION SUITS FOR DECLARATORY RELIEF AS WITHIN THE
JURISDICTION OF THE DISTRICT COURTS MERELY BECAUSE, AS IN THIS CASE,
ARTFUL PLEADING ANTICIPATES A DEFENSE BASED ON FEDERAL LAW WOULD
CONTRAVENE THE WHOLE TREND OF JURISDICTIONAL LEGISLATION BY CONGRESS,
DISREGARD THE EFFECTIVE FUNCTIONING OF THE FEDERAL JUDICIAL SYSTEM AND
DISTORT THE LIMITED PROCEDURAL PURPOSE OF THE DECLARATORY JUDGMENT
ACT.  SEE DEVELOPMENTS IN THE LAW - DECLARATORY JUDGMENTS - 1941-1949,
62 HARV. L. REV. 787, 802-03(1949).  SINCE THE MATTER IN CONTROVERSY AS
TO WHICH PHILLIPS ASKED FOR A DECLARATORY JUDGMENT IS NOT ONE THAT
"ARISES UNDER THE  ...  LAWS  ...  OF THE UNITED STATES" AND SINCE AS
TO SKELLY AND STANOLIND JURISDICTION CANNOT BE SUSTAINED ON THE SCORE
OF DIVERSITY OF CITIZENSHIP, THE PROCEEDINGS AGAINST THEM SHOULD HAVE
BEEN DISMISSED. 

AS TO MAGNOLIA, A TEXAS CORPORATION, A DIFFERENT SITUATION IS
PRESENTED.  SINCE PHILLIPS WAS A DELAWARE CORPORATION, THERE IS
DIVERSITY OF CITIZENSHIP.  MAGNOLIA HAD QUALIFIED TO DO BUSINESS IN
OKLAHOMA AND APPOINTED AN AGENT FOR SERVICE OF PROCESS IN ACCORDANCE
WITH THE PREVAILING OKLAHOMA STATUTE.  OKLA. STAT. ANN. TIT. 18, SEC.
452(1937).  MAGNOLIA CLAIMED THAT THE SUBJECT MATTER OF THIS PROCEEDING
DID NOT ARISE IN OKLAHOMA WITHIN THE MEANING OF ITS CONSENT TO BE
SUED.  THIS CONTENTION WAS REJECTED BELOW, AND WE DO NOT REEXAMINE THE
LOCAL LAW AS APPLIED BY THE LOWER COURTS.  UNDER THE DOCTRINE OF NEIRBO
CO. V. BETHLEHEM SHIPBUILDING CORP., 308 U.S. 165, VENUE WAS PROPERLY
LAID IN OKLAHOMA; THAT THE DECLARATORY REMEDY WHICH MAY BE GIVEN BY THE
FEDERAL COURTS MAY NOT BE AVAILABLE IN THE STATE COURTS IS IMMATERIAL. 

THEREFORE, IN THE CASE OF MAGNOLIA WE MUST REACH THE MERITS.  THEY
RELATE TO TWO MATTERS:  (1) THE CLAUSE IN THE CONTRACT WITH PHILLIPS
PERMITTING ITS TERMINATION AT ANY TIME AFTER DECEMBER 1, 1946, BUT
BEFORE THE "ISSUANCE" OF "A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY" BY THE FEDERAL POWER COMMISSION; AND (2) WHETHER THIS
PROVISION WAS SATISFIED BY MAGNOLIA'S NOTICE OF TERMINATION OF DECEMBER
2, 1946, DESPITE THE COMMISSION'S ORDER OF NOVEMBER 30, 1946.  THE
PHRASEOLOGY "CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY" IN THE
CONTRACT IS IDENTIC WITH THE PHRASE IN SEC. 7(C) OF THE NATURAL GAS
ACT.  THE COURT OF APPEALS EQUATED THE TERM OF THE CONTRACT WITH THAT
IN THE STATUTE AND IN EFFECT DEEMED ITS PROBLEM TO BE THE PROPER
CONSTRUCTION OF WHAT CONSTITUTES THE "ISSUANCE" OF A "CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY" WITHIN THE MEANING OF SEC. 7(C).  SO
VIEWING THE MATTER, THE COURT HELD THAT THE ORDER OF NOVEMBER 30, 1946,
SATISFIED THE REQUIREMENT OF THE CONTRACT, AND THAT THEREFORE A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY HAD BEEN ISSUED WITHIN
THE TERMINAL PERIOD OF THE CONTRACT, AND THAT ITS TERMINATION WAS NOT
TIMELY.    IT WILL BE RECALLED THAT THE ORDER OF NOVEMBER 30, 1946, HAD
THREE PARTS:  (A) IT STATED THAT "A CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY BE AND IT IS HEREBY ISSUED TO APPLICANT (MICHIGAN
WISCONSIN)"; (B) IT IMPOSED CERTAIN CONDITIONS UPON THE GRANT, SOME OF
WHICH WERE TO BE SET FORTH IN A SUPPLEMENTAL ORDER; AND (C) IT SAID
THAT "FOR THE PURPOSE OF COMPUTING THE TIME WITHIN WHICH APPLICATIONS
FOR REHEARING MAY BE FILED, THE DATE OF ISSUANCE OF THIS ORDER SHALL BE
DEEMED TO BE THE DATE OF ISSUANCE OF THE OPINIONS, OR OF THE
SUPPLEMENTAL ORDER REFERRED TO HEREIN, WHICHEVER MAY BE THE LATER."  5
F.P.C. AT 954, 956.  THE COURSE OF REASONING BY WHICH THE COURT OF
APPEALS CONCLUDED THAT THE ORDER OF NOVEMBER 30, 1946, SATISFIED THE
STATUTORY REQUIREMENT FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY CAN BE BRIEFLY SUMMARIZED.  IT RELIED ON THE GRAMMATICAL
ARGUMENT THAT THE COMMISSION USED THE PRESENT TENSE IN ITS ORDER AND
SUBSEQUENTLY REFERRED TO IT AS AN ORDER "ISSUING A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY," E.G., 6 F.P.C. 1, 37; THE
CONDITIONAL NATURE OF THE ORDER WAS NOT DEEMED TO IMPAIR ITS EFFICACY
SINCE SEC. 7(E) OF THE NATURAL GAS ACT AUTHORIZED THE COMMISSION "TO
ATTACH TO THE ISSUANCE OF THE CERTIFICATE AND TO THE EXERCISE OF THE
RIGHTS GRANTED THEREUNDER SUCH REASONABLE TERMS AND CONDITIONS AS THE
PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE"; AND THE PROVISION OF THE
ORDER CONNECTING THE DATE OF THE ORDER'S ISSUANCE WITH THE TIME DEFINED
FOR SECURING A REHEARING WAS THOUGHT RELEVANT ONLY TO THE SUPPLEMENTAL
ORDER. 

WE ARE NOT PERSUADED NOW TO REST DECISION ON THE ANALYSIS OF THE
COURT OF APPEALS WHICH LED TO ITS CONCLUSION.  WE NEED NOT LINGER LONG
ON THE MERELY GRAMMATICAL ARGUMENT OF THAT COURT; IT IS GIVEN MORE
WEIGHT THAN IT CAN BEAR.  OF COURSE, THE COMMISSION HAS CONSIDERABLE
ADMINISTRATIVE DISCRETION TO DECIDE WHEN AN ORDER MAY FAIRLY BE DEEMED
TO HAVE BEEN "ISSUED."  SECTION 16 OF THE ACT PROVIDES THAT "ORDERS OF
THE COMMISSION SHALL BE EFFECTIVE ON THE DATE AND IN THE MANNER WHICH
THE COMMISSION SHALL PRESCRIBE."  BUT SURELY A CERTIFICATE CANNOT BE
SAID TO HAVE BEEN ISSUED FOR PURPOSES OF DEFINING RIGHTS AND THE
SEEKING OF RECONSIDERATION BY AN AGGRIEVED PERSON IF ITS SUBSTANCE IS
MERELY IN THE BOSOM OF THE COMMISSION.  KNOWLEDGE OF THE SUBSTANCE MUST
TO SOME EXTENT BE MADE MANIFEST.  HERE THE CONTENT OF THE ORDER OF
NOVEMBER 30, 1946, WAS NOT MADE PUBLIC UNTIL DECEMBER 2, 1946, THE DATE
OF THE TERMINATION NOTICE. 

THE COMMISSION ITSELF IN ITS RULE FOR COMPUTING REHEARING TIME
DISTINGUISHED BETWEEN "ADOPTION" OF AN ORDER AND ITS "ISSUANCE."  FN1
HOWEVER, AS A MATTER OF USAGE, THE COMMISSION HAS REFERRED TO AN ORDER
AS HAVING "ISSUED" A CERTIFICATE ON A PARTICULAR DATE WHEN IN FACT THE
DATE WAS THAT OF "ADOPTION."  SEE, E.G., ARKANSAS LOUISIANA GAS CO., 5
F.P.C. 813, 897; CF. PACIFIC GAS & ELEC.  CO., 5 F.P.C. 824, 901. 
FINALLY, THE RESTRICTION OF THE COURT OF APPEALS OF THE REHEARING
PROVISION OF PART C TO THE SUPPLEMENTAL ORDER FINDS NO SUPPORT ON THE
FACE OF THE ORDER OF NOVEMBER 30, 1946.  THERE IS NOTHING TO INDICATE
THAT PART C WAS NOT TO APPLY TO THE ENTIRE ORDER FOR PURPOSES OF SEC.
19 OF THE ACT, WHICH ALLOWS A REHEARING BY A PARTY AGGRIEVED "WITHIN
THIRTY DAYS AFTER THE ISSUANCE OF SUCH ORDER" AND MAKES SUCH REHEARING
A PREREQUISITE TO JUDICIAL REVIEW.  SEE F.P.C. 323. 

SINCE THE REQUIREMENTS OF THE NATURAL GAS ACT FOR THE ISSUANCE OF "A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY" MAY BE DISTRIBUTIVE IN
SCOPE, VARYING WITH THE DIFFERENT CONTEXTS IN WHICH THE QUESTION MUST
BE EXAMINED, THIS IS NOT THE OCCASION TO DECIDE THAT THESE REQUIREMENTS
HAVE A SINGLE UNIFORM CONTENT.  WHETHER THE STATUTORY REQUIREMENT HERE
WAS SATISFIED IS NOT A QUESTION OF FACT, THE FINDING OF WHICH BY THE
DISTRICT COURT IS TO BE RESPECTED UNLESS CLEARLY ERRONEOUS.  THE
DISTRICT COURT MERELY FOUND THAT THE CONTENT OF THE PIECE OF PAPER
DATED NOVEMBER 30, 1946, WAS THAT DAY AGREED UPON IN EXECUTIVE SESSION
OF THE COMMISSION AND THAT THAT FACT WAS MADE KNOWN.  BUT THIS LEAVES
UNTOUCHED THE LEGAL SIGNIFICANCE OF THIS ACTION OF THE COMMISSION, AND
THE COURT OUGHT NOT NOW IN DARKNESS TO PRONOUNCE ON THIS QUESTION. 

WE ARE NOT RESTRICTED TO DISPOSITION OF THE CONTROVERSY ON SO
TRUNCATED A TREATMENT OF THE ISSUES THAT UNDERLIE THE RECORD. 
CONSIDERING THE FACT THAT SO TO DISPOSE OF THE CASE WOULD INVOLVE
DETERMINATION OF AN IMPORTANT PROBLEM CONCERNING A REGULATORY STATUTE
WITH IMPLICATIONS OF PUBLIC IMPORTANCE THAT PRIVATE LITIGANTS NATURALLY
ENOUGH DO NOT WHOLLY REPRESENT AND THAT ON THESE MATTERS NEITHER THE
COURTS BELOW NOR THIS COURT HAD THE BENEFIT OF THE EXPERIENCE AND
ILLUMINATION OF THE AGENCY ENTRUSTED WITH THE ENFORCEMENT OF THE ACT,
FN2  THE DUE ADMINISTRATION OF JUSTICE REQUIRES THAT WE SHOULD EXERCISE
OUR DISCRETIONARY POWER IN REVIEWING CASES TO "REQUIRE SUCH FURTHER
PROCEEDINGS TO BE HAD AS MAY BE JUST UNDER THE CIRCUMSTANCES."  28
U.S.C. SEC. 2106; HONEYMAN V. HANAN, 300 U.S. 14, 25.  ACCORDINGLY, WE
THINK THAT THE PROPER DISPOSITION REQUIRES THAT WE VACATE THE JUDGMENT
AS TO MAGNOLIA AND REMAND THE CASE IN ORDER THAT THE COURT OF APPEALS
EITHER ITSELF OR BY SENDING THE CASE BACK TO THE DISTRICT COURT CAN
FURTHER EXPLORE, THROUGH WAYS THAT MAY BE APPROPRIATE, THE ISSUES WHICH
HAVE BEEN LAID BARE.  SEE KENNEDY V. SILAS MASON CO., 334 U.S. 249. 

THE IMPACT OF THE LITIGATION BOTH HERE AND BELOW WAS ON THE PROPER
CONSTRUCTION OF SEC. 7(C).  EVEN THOUGH THE LANGUAGE OF THE CONTRACT
MAY BE IDENTIC WITH THAT OF SEC. 7(C), THIS LANGUAGE IN THE CONTRACT
MAY HAVE A SCOPE INDEPENDENT OF THE PROPER CONSTRUCTION OF SEC. 7(C). 
THE SAME WORDS, IN DIFFERENT SETTINGS, MAY NOT MEAN THE SAME THING. 
COMPARE OPINION OF MR. JUSTICE HOLMES IN TOWNE V. EISNER, 245 U.S. 418,
WITH HIS DISSENT IN EISNER V. MACOMBER, 252 U.S. 189, 219.  PARTIES DO
NOT NECESSARILY ENDOW STATUTORY LANGUAGE IN A CONTRACT WITH THE SCOPE
OF THE STATUTE, PARTICULARLY WHEN THE SAME TERM MAY HAVE VARIANT
MEANINGS FOR DIFFERENT APPLICATIONS OF THE STATUTE.  SEE STANDARD OIL
CO. V. JOHNSON, 316 U.S. 481, 483.  OF COURSE THE STATUTORY MEANING IN
THE CONTEXT OF THE ENTIRE NATURAL GAS ACT MAY NOT BE IRRELEVANT.  IN
REMANDING THE CASE WE DO NOT MEAN TO FORECLOSE THIS LINE OF INQUIRY. 
FN3 

IN RESPECT TO MAGNOLIA, THE JUDGMENT OF THE COURT OF APPEALS IS
VACATED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  AS TO SKELLY AND STANOLIND, WE REVERSE THE JUDGMENT
WITH DIRECTIONS THAT THE CAUSE BE DISMISSED.  IT IS SO ORDERED. 

FN1  RULE 13(B) OF THE COMMISSION'S RULES OF PRACTICE AND PROCEDURE
PROVIDES:  "IN COMPUTING ANY PERIOD OF TIME INVOLVING THE DATE OF THE
ISSUANCE OF AN ORDER BY THE COMMISSION, THE DAY OF ISSUANCE OF AN ORDER
SHALL BE THE DAY THE OFFICE OF THE SECRETARY MAILS OR DELIVERS COPIES
OF THE ORDER (FULL TEXT) TO THE PARTIES OR THEIR ATTORNEYS OF RECORD,
OR MAKES SUCH COPIES PUBLIC, WHICHEVER BE THE EARLIER.  ...  THE DAY OF
ISSUANCE OF AN ORDER MAY OR MAY NOT BE THE DAY OF ITS ADOPTION BY THE
COMMISSION."  18 C.F.R. SEC. 1.13(B).  A DEPOSITION TAKEN OF THE
SECRETARY OF THE COMMISSION GAVE LIGHT ON THIS POINT.  THE COMMISSION'S
PREVIOUS RULE ON REHEARING TIME IS IN 18 C.F.R. CUM. SUPP. SEC. 50.75. 

RULE 13(C) PROVIDES:  "ORDERS OF THE COMMISSION SHALL BE EFFECTIVE AS
OF THE DATES OF ISSUANCE UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE
ORDERS."  18 C.F.R. SEC. 1.13(C).  THIS PROVISION MAY BE OF
SIGNIFICANCE IF THE EFFECTIVENESS OF A CERTIFICATE IS AN ISSUE IN
PROCEEDINGS UNDER SEC. 20 OR SEC. 21 OF THE ACT.  THE COURT OF APPEALS
DID NOT DISCUSS THE BEARING OF THESE RULES UPON THIS CASE. 

FN2  THE SIGNIFICANCE OF THE CONDITIONS IN QUALIFYING WHAT IS
FORMALLY CALLED A "CERTIFICATE" IN THE ORDER OF NOVEMBER 30, 1946, IS
PRECISELY ONE OF THOSE MATTERS UPON WHICH COMMISSION PRACTICE AND
EXPERIENCE MAY SHED HELPFUL LIGHT. 

FN3  IN ITS CONCLUSIONS OF LAW, THE DISTRICT COURT STATED:  "THE
CERTIFICATE ISSUED BY THE COMMISSION TO MICHIGAN-WISCONSIN ON NOVEMBER
30, 1946, ALTHOUGH CONTAINING TERMS AND CONDITIONS, WAS AND IS A
CERTIFICATE ISSUED UNDER THE REQUIREMENTS OF THE NATURAL GAS ACT AND
ONE THAT IS PROVIDED FOR BY THAT ACT.  A CONSIDERATION OF THE CONTRACTS
BETWEEN PLAINTIFF AND DEFENDANTS, TOGETHER WITH THE CONTRACT BETWEEN
PLAINTIFF AND MICHIGAN-WISCONSIN, COMPELS A CONCLUSION THAT SUCH
CERTIFICATE WAS ONE WITHIN THE CONTEMPLATION OF THE PARTIES AND
SATISFIED THE TERMS OF THE CONTRACTS." 

THE CONTEXT SUGGESTS THAT IN THE SECOND SENTENCE THE DISTRICT COURT
MAY STILL HAVE BEEN FOCUSING UPON STATUTORY MEANING. 

MR. JUSTICE BLACK AGREES WITH THE COURT OF APPEALS AND WOULD AFFIRM
ITS JUDGMENT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 

MR. CHIEF JUSTICE VINSON, WITH WHOM MR. JUSTICE BURTON JOINS,
DISSENTING IN PART. 

I CONCUR IN THAT PART OF THE COURT'S JUDGMENT THAT DIRECTS DISMISSAL
OF THE CAUSE AS TO SKELLY AND STANOLIND.  I HAVE REAL DOUBTS AS TO
WHETHER THERE IS A FEDERAL QUESTION HERE AT ALL, EVEN THOUGH
INTERPRETATION OF THE CONTRACT BETWEEN PRIVATE PARTIES REQUIRES AN
INTERPRETATION OF A FEDERAL STATUTE AND THE ACTION OF A FEDERAL
REGULATORY BODY.  BUT THE COURT FINDS IT UNNECESSARY TO REACH THAT
QUESTION BECAUSE IT HOLDS THAT THE FEDERAL QUESTION, IF ANY, IS NOT A
PART OF THE PLAINTIFF'S CLAIM AND THAT JURISDICTION DOES NOT,
THEREFORE, ATTACH.  WHILE THIS RESULT IS NOT A NECESSARY ONE, I AM NOT
PREPARED TO DISSENT FROM IT AT THIS TIME. 

BUT I AM FORCED TO DISSENT FROM THE VACATION AND REMAND OF THE CAUSE
IN RESPECT TO MAGNOLIA.  I THINK THAT, AS TO THIS PETITIONER, THE
JUDGMENT OF THE COURT OF APPEALS SHOULD BE AFFIRMED.  THE COURT DECIDES
THAT THE COURT OF APPEALS ERRED IN HOLDING THAT THE FEDERAL POWER
COMMISSION HAD ISSUED A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY
TO MICHIGAN-WISCONSIN PIPE LINE COMPANY ON NOVEMBER 30, 1946, DESPITE
THE FACT THAT ON THAT DATE THE COMMISSION ADOPTED AN ORDER STATING THAT
"A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY BE AND IT IS HEREBY
ISSUED TO APPLICANT, UPON THE TERMS AND CONDITIONS OF THIS ORDER,  ...
"  THIS DISREGARD FOR WHAT THE DISTRICT COURT FOUND TO BE THE
COMMISSION'S EXPRESS INTENTION IS BASED UPON TWO ALTERNATIVE GROUNDS. 
FIRST, IT IS SUGGESTED THAT WHILE THE ORDER ISSUING THE CERTIFICATE WAS
"ADOPTED" ON NOVEMBER 30, IT WAS NOT "ISSUED" UNTIL DECEMBER 2. 
SECOND, IT IS SAID THAT PART C OF THE NOVEMBER 30 ORDER, WHICH
CONCERNED THE DATE OF ISSUANCE OF THE ORDER FOR PURPOSES OF
APPLICATIONS FOR REHEARING, PRECLUDES A FINDING THAT A CERTIFICATE WAS
ISSUED ON NOVEMBER 30.  NEITHER OF THESE GROUNDS, IN MY JUDGMENT,
SUPPORTS THE COURT'S CONCLUSION. 

AS TO THE FIRST, WHICH WAS NOT ARGUED HERE NOR IN THE COURT OF
APPEALS, IT IS TRUE THAT THE COMMISSION'S RULES PROVIDE THAT AN ORDER
IS NOT TO BE DEEMED "ISSUED" UNTIL THE FULL TEXT IS MIMEOGRAPHED AND
MAILED TO THE PARTIES TO THE PROCEEDING.  THIS USUALLY FOLLOWS WITHIN
TWO OR THREE DAYS AFTER THE ORDER IS "ADOPTED."  THE ONLY PURPOSE OF
THE POSTPONEMENT OF THE DATE OF ISSUANCE OF THE ORDER, SO FAR AS WE ARE
INFORMED, IS TO POSTPONE THE RUNNING OF THE 30-DAY PERIOD FOR
APPLICATIONS FOR REHEARING UNTIL THE FULL TEXT IS AVAILABLE TO THE
PARTIES WHO HAVE STANDING TO ASK FOR REHEARING. 

BUT THE COMMISSION UNIFORMLY REFERS TO THE DATE OF ADOPTION OF THE
ORDER AS THE DATE UPON WHICH THE CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY WAS "ISSUED."  FN1  IT DID SO IN THIS CASE, WHEN, ON MARCH
12, 1947, IT ISSUED A SUPPLEMENTAL ORDER REFERRING TO ITS "ORDER OF
NOVEMBER 30, 1946, ISSUING A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY."  FURTHERMORE, THE DISTRICT COURT FOUND AS A FACT THAT 

"ON NOVEMBER 30, A SATURDAY, THE COMMISSION IN EXECUTIVE SESSION MADE
AN ORDER GRANTING, WITH CONDITIONS, A CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY TO THE MICHIGAN-WISCONSIN PIPE LINE COMPANY.  DURING THIS
SESSION AS THE MEMBERS OF THE COMMISSION CAME TO AGREEMENT AS TO THE
WORDING OF THE ORDER, MR. FUQUAY, THE SECRETARY OF THE COMMISSION,
PREPARED THE ORDER IN FULL AND EXACT TEXT.  THE SECRETARY WAS DIRECTED
BY THE COMMISSION TO RELEASE THE ORDER IMMEDIATELY." 

FOLLOWING ADJOURNMENT ON THAT DAY, THE SECRETARY SENT A TELEGRAM TO
THE PARTIES TO THE PROCEEDING, INFORMING THEM THAT THE "COMMISSION
TODAY  ...  ADOPTED OPINION AND ORDER, IN DOCKET NO. G-669, ISSUING
CERTIFICATE, WITH CONDITIONS, TO MICHIGAN WISCONSIN PIPE LINE
COMPANY."  ON THE SAME DAY, RELEASES TO THE PRESS WERE MADE ANNOUNCING
THE ACTION TAKEN BY THE COMMISSION. 

SKELLY, STANOLIND AND MAGNOLIA WERE NOT PARTIES TO THIS PROCEEDING. 
IT MAY VERY WELL BE THAT THE DATE OF ISSUANCE OF THE ORDER GRANTING THE
CERTIFICATE IS DECEMBER 2 OR SOME LATER DATE - FOR PURPOSES OF
REHEARING UPON APPLICATION OF THE PARTIES.  BUT I THINK THERE IS NO
QUESTION THAT THE CERTIFICATE, AS DISTINGUISHED FROM THE ORDER, WAS
ISSUED ON NOVEMBER 30.  THAT IS THE COMMISSION'S VIEW, AS INDICATED BY
ITS SUPPLEMENTAL ORDER.  THE FACT THAT IT TAKES A FEW DAYS TO GET ITS
ORDERS MIMEOGRAPHED AND THE COMMISSION HAS ADOPTED A RULE THAT, IN
FAIRNESS TO THE PARTIES, THE TIME FOR REHEARING SHALL NOT BEGIN TO RUN
UNTIL SUCH ORDERS, IN FULL TEXT, ARE AVAILABLE, DOES NOT MEAN THAT THE
ISSUANCE OF THE CERTIFICATE IS ALSO HELD IN ABEYANCE UNTIL THAT TIME. 

THE SECOND ARGUMENT REQUIRES BUT SHORT ANSWER.  PART C. PROVIDES
THAT 

"FOR THE PURPOSE OF COMPUTING THE TIME WITHIN WHICH APPLICATIONS FOR
REHEARING MAY BE FILED, THE DATE OF ISSUANCE OF THIS ORDER SHALL BE
DEEMED TO BE THE DATE OF ISSUANCE OF THE OPINIONS, OR OF THE
SUPPLEMENTAL ORDER REFERRED TO HEREIN, WHICHEVER MAY BE THE LATER." 

THE PARAGRAPH MEANS JUST WHAT IT SAYS.  I DO NOT UNDERSTAND THE COURT
TO HOLD THAT THE COMMISSION CANNOT THUS POSTPONE THE RUNNING OF THE
TIME FOR REHEARING.  COMPUTATION OF THAT TIME, AS I HAVE INDICATED, HAS
NO NECESSARY RELATION TO THE DATE OF ISSUANCE OF THE CERTIFICATE.    I
THINK THAT THE COMMISSION INTENDED TO AND DID ISSUE A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY TO MICHIGAN-WISCONSIN PIPE LINE
COMPANY ON NOVEMBER 30, 1946, WHATEVER THE DATE OF ITS ORDER, FOR
PURPOSES OF COMPUTATION OF TIME FOR REHEARING.  THE CRUCIAL CLAUSE OF
THE CONTRACT REFERS TO "THE ISSUANCE OF SUCH CERTIFICATE (OF PUBLIC
CONVENIENCE AND NECESSITY)."  BY THEIR INCLUSION OF A PROVISION
DEPENDENT UPON THE ACTION OF A FEDERAL AGENCY, IT IS OBVIOUS THAT THE
PARTIES INTENDED THAT THE CONTRACT SHOULD BE CONSTRUED WITH REFERENCE
TO THE EFFECTIVE DATE OF AGENCY ACTION UNDER THE STATUTES AND THE
PRACTICES OF THE COMMISSION.  THE DISTRICT COURT SO CONCLUDED  FN2.  I
CAN SEE NO REASON, THEREFORE, TO REMAND THE CAUSE FOR FURTHER
PROCEEDINGS.  IN MY VIEW, EFFECTIVE AGENCY ACTION WAS TAKEN ON NOVEMBER
30, 1946.  AS TO MAGNOLIA, I WOULD AFFIRM THE JUDGMENT OF THE COURT OF
APPEALS. 

FN1  SEE, E.G., ARKANSAS LOUISIANA GAS CO., 5 F.P.C. 813, 897;
PACIFIC GAS & ELEC.  CO., 5 F.P.C. 824, 901. 

FN2  THE DISTRICT COURT STATED AS ONE OF ITS CONCLUSIONS OF LAW:
"THE CERTIFICATE ISSUED BY THE COMMISSION TO MICHIGAN-WISCONSIN ON
NOVEMBER 30, 1946, ALTHOUGH CONTAINING TERMS AND CONDITIONS, WAS AND IS
A CERTIFICATE ISSUED UNDER THE REQUIREMENTS OF THE NATURAL GAS ACT AND
ONE THAT IS PROVIDED FOR BY THAT ACT.  A CONSIDERATION OF THE CONTRACTS
BETWEEN PLAINTIFF AND DEFENDANTS, TOGETHER WITH THE CONTRACT BETWEEN
PLAINTIFF AND MICHIGAN-WISCONSIN, COMPELS A CONCLUSION THAT SUCH
CERTIFICATE WAS ONE WITHIN THE CONTEMPLATION OF THE PARTIES AND
SATISFIED THE TERMS OF THE CONTRACTS." 
..END :










SWIFT & CO. V. COMPANIA CARIBE, 339 U.S. 684 


NO. 230.  ARGUED DECEMBER 14-15, 1949.  - DECIDED JUNE 5, 1950.  - 175
F.2D 513, REVERSED. 


PETITIONERS BROUGHT A LIBEL IN PERSONAM IN THE DISTRICT COURT FOR THE
CANAL ZONE AGAINST A STEAMSHIP COMPANY ON A CLAIM ARISING UPON A
CONTRACT OF AFFREIGHTMENT SUPPLEMENTED BY CHARGES OF NEGLIGENCE IN THE
NONDELIVERY OF A SEA CARGO, AND BY PROCESS OF FOREIGN ATTACHMENT
SECURED THE ATTACHMENT OF A VESSEL WHICH THE COMPANY ALLEGEDLY HAD
TRANSFERRED TO RESPONDENT IN FRAUD OF PETITIONERS' RIGHTS.  CONCLUDING
THAT THERE WAS NO JURISDICTION IN ADMIRALTY TO INQUIRE INTO THE ALLEGED
FRAUDULENT TRANSFER, AND THAT IN ANY EVENT THE EXERCISE OF JURISDICTION
WOULD BE INAPPROPRIATE SINCE THE TRANSFER HAD TAKEN PLACE BETWEEN TWO
FOREIGN CORPORATIONS AND IN A FOREIGN COUNTRY, THE DISTRICT COURT
VACATED THE ATTACHMENT.  THE COURT OF APPEALS AFFIRMED.  HELD: 

1.  THE ORDER OF THE DISTRICT COURT VACATING THE ATTACHMENT WAS
REVIEWABLE BY THE COURT OF APPEALS UNDER 28 U.S.C. SEC. 1291.  PP. 688
689. 

(A)  THE PROVISION OF 28 U.S.C. SEC. 1291 FOR APPEALS TO THE COURTS
OF APPEALS ONLY FROM FINAL DECISIONS OF THE DISTRICT COURTS SHOULD NOT
BE CONSTRUED SO AS TO DENY EFFECTIVE REVIEW OF A CLAIM FAIRLY SEVERABLE
FROM THE CONTEXT OF A LARGER LITIGIOUS PROCESS.  COHEN V. BENEFICIAL
INDUSTRIAL LOAN CORP., 337 U.S. 541.  PP. 688-689. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, THE DISTRICT COURT TO
DISCHARGE ITS MARITIME JURISDICTION WAS NOT WITHOUT POWER TO DETERMINE
WHETHER THE TRANSFER OF THE VESSEL WAS FRAUDULENT, AND THE POWER SHOULD
BE EXERCISED.  PP. 689-695. 

3.  IN THE POSTURE OF THE CASE IN THE DISTRICT COURT, THE VACATION OF
THE ATTACHMENT WAS NOT JUSTIFIED BY PETITIONERS' FAILURE TO ESTABLISH A
PRIMA FACIE CASE OF FRAUD, ALTHOUGH THE ULTIMATE BURDEN OF ESTABLISHING
A FRAUDULENT TRANSFER WAS UPON THEM.  PP. 695-696. 

4.  THE DISTRICT COURT'S ORDER VACATING THE ATTACHMENT WAS NOT
JUSTIFIED AS AN EXERCISE OF DISCRETION TO DECLINE JURISDICTION UNDER
THE DOCTRINE OF FORUM NON CONVENIENS.  PP. 697-698. 

(A)  IT WAS IMPROPER UNDER THE CIRCUMSTANCES HERE SHOWN TO REMIT A
UNITED STATES CITIZEN TO THE COURTS OF A FOREIGN COUNTRY WITHOUT
ASSURING THE CITIZEN THAT RESPONDENTS WOULD APPEAR IN THOSE COURTS AND
THAT SECURITY WOULD BE GIVEN EQUAL TO WHAT HAD BEEN OBTAINED BY
ATTACHMENT IN THE DISTRICT COURT.  PP. 697-698. 

SWIFT & COMPANY PACKERS ET AL. V. COMPANIA COLOMBIANA DEL CARIBE, S.A.
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

AN ORDER OF THE DISTRICT COURT VACATING THE ATTACHMENT OF A VESSEL IN
AN ADMIRALTY PROCEEDING, 83 F.SUPP.  273, WAS AFFIRMED BY THE COURT OF
APPEALS.  175 F.2D 513.  THIS COURT GRANTED CERTIORARI.  338 U.S. 813. 
REVERSED AND REMANDED, P. 698. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS THE PROPRIETY OF AN ORDER OF THE DISTRICT
COURT FOR THE CANAL ZONE VACATING A FOREIGN ATTACHMENT OF A VESSEL MADE
IN A LIBEL IN PERSONAM.  WE GRANTED CERTIORARI BECAUSE IMPORTANT
QUESTIONS RELATING TO THE SCOPE OF ADMIRALTY JURISDICTION AND ITS
EXERCISE ARE IN ISSUE.  338 U.S. 813. 

ON MARCH 7, 1948, THE LIBEL WAS FILED AGAINST COMPANIA TRANSMARITIMA
COLOMBIANA, S.A., A COLOMBIAN CORPORATION, BY SWIFT & COMPANY PACKERS,
A NEVADA CORPORATION, CERTAIN CUBAN CORPORATIONS AND INDIVIDUALS, AND A
COLOMBIAN CITIZEN.  THEY BROUGHT THE LIBEL AS OWNERS OF RICE SHIPPED
FROM ECUADOR TO CUBA.  IT WAS ALLEGED THAT THE CARGO HAD BEEN DELIVERED
IN GOOD ORDER TO THE M/V CALI, OWNED AND OPERATED BY TRANSMARITIMA, AND
THAT THE VESSEL HAD SUNK, OR PARTIALLY SUNK, OFF THE ISLAND OF GRAND
CAYMAN WITH RESULTING NONDELIVERY OF THE CARGO.  THIS WAS SUPPLEMENTED
BY ALLEGATIONS OF NEGLIGENCE.  PROCESS WAS PRAYED WITH THE FURTHER
REQUEST THAT IF THE RESPONDENT COULD NOT BE FOUND ITS GOODS AND
CHATTELS BE ATTACHED, PARTICULARLY A VESSEL KNOWN AS THE ALACRAN, OR
CARIBE.  THIS VESSEL WAS THEREUPON ATTACHED BY THE MARSHAL. 

ON MARCH 8, LIBELLANTS FILED A SUPPLEMENTAL AND AMENDED LIBEL, AND ON
THE BASIS OF THE FOLLOWING ALLEGATIONS JOINED THE COMPANIA COLOMBIANA
DEL CARIBE, S.A., AS RESPONDENT.  ON OR SHORTLY PRIOR TO MARCH 4, THE
COMPANIA DEL CARIBE HAD BEEN ORGANIZED UNDER THE LAWS OF COLOMBIA AND
THE ALACRAN HAD BEEN TRANSFERRED BY TRANSMARITIMA TO DEL CARIBE IN
FRAUD OF THE RIGHTS OF LIBELLANTS.  THE LATTER COMPANY HAD BEEN
ORGANIZED BY DIRECTORS, OFFICERS AND STOCKHOLDERS OF TRANSMARITIMA, BUT
NO FUNDS HAD BEEN PAID INTO ITS TREASURY FOR THE ISSUE OF ITS STOCK,
AND THE TRANSFER OF THE ALACRAN WAS WITHOUT REAL CONSIDERATION.  DEL
CARIBE WAS "MERELY THE CREATURE OR ALTER EGO" OF TRANSMARITIMA AND
"THEY SHOULD BE HELD TO BE, AS THEY ARE, ONE AND THE SAME."  DEL
CARIBE, ON OR ABOUT MARCH 4, HAD HAD THE VESSEL'S NAME CHANGED FROM
ALACRAN TO CARIBE, AND A NEW REGISTER HAD BEEN ISSUED ACCORDINGLY.  IN
THE ALTERNATIVE, THE CLAIM WAS THAT DEL CARIBE WAS INDEBTED TO
TRANSMARITIMA FOR AT LEAST A SUBSTANTIAL PART IF NOT ALL OF THE
PURCHASE PRICE OF THE CARIBE. 

ATTACHMENT OF THE VESSEL WAS AGAIN PRAYED ON WHAT APPEARS TO HAVE
BEEN EITHER OF TWO GROUNDS: SINCE TRANSMARITIMA AND DEL CARIBE WERE
REALLY ONE AND THE SAME, IT MATTERED NOT WHICH WAS DEEMED TO BE THE
OWNER OF THE CARIBE; SINCE THE TRANSFER OF THE CARIBE TO DEL CARIBE WAS
A FRAUDULENT TRANSFER TO BE SET ASIDE, THE VESSEL WAS IN REALITY
TRANSMARITIMA'S PROPERTY AND DEL CARIBE SHOULD BE GARNISHED.  ON THE
BASIS OF THE AMENDED LIBEL ANOTHER ATTACHMENT OF THE CARIBE WAS MADE. 
FN1 

WITH THE SUPPLEMENTAL LIBEL, LIBELLANTS SUBMITTED A LIST OF
INTERROGATORIES TO BE PROPOUNDED TO DEL CARIBE, CALCULATED TO DISCLOSE
THE TRUE STATUS OF THAT COMPANY AND OF THE TRANSFER TO IT OF THE
CARIBE.  ON MARCH 15, RESPONDENTS GAVE NOTICE THAT THEY WOULD MOVE FOR
AN ORDER DISMISSING THE LIBEL AND VACATING THE ATTACHMENT.  AN
ACCOMPANYING AFFIDAVIT RELIED PRIMARILY ON THE DOCTRINE OF FORUM NON
CONVENIENS.  THE DISTRICT COURT OVERRULED THIS MOTION ON MARCH 31.  THE
PARTIES THEN ENTERED INTO STIPULATIONS WHEREBY THE RESPONDENTS' TIME TO
ANSWER THE LIBEL AND INTERROGATORIES WAS EXTENDED TO JUNE 17.  ON JUNE
11, THEY ANSWERED, PUTTING IN ISSUE VARIOUS QUESTIONS RELATING TO THE
LIABILITY ARISING OUT OF THE SINKING OF THE CALI AND TO THE TRANSFER OF
THE CARIBE.  AT THE SAME TIME DEL CARIBE OBJECTED TO THE
INTERROGATORIES ON VARIOUS GROUNDS.  NO DISPOSITION OF THESE OBJECTIONS
APPEARS FROM THE RECORD. 

ON AUGUST 16, DEL CARIBE GAVE NOTICE OF A MOTION TO DISMISS THE LIBEL
AS TO IT AND VACATE THE ATTACHMENT.  VARIOUS GROUNDS WERE URGED CALLING
INTO QUESTION THE JURISDICTION OF THE COURT, THE PROPRIETY OF ITS
EXERCISE, AND THE ADEQUACY OF THE ALLEGATIONS TO STATE A CLAIM IN THE
LIBEL.  AN ACCOMPANYING AFFIDAVIT SET FORTH MATTERS RELATING TO THE
TRANSFER. 

ON SEPTEMBER 20, THE DISTRICT COURT FOUND THAT THE NONDELIVERY OF THE
CARGO WAS DUE TO THE BEACHING OF THE CALI IN JANUARY, 1948; THAT DEL
CARIBE HAD BEEN ORGANIZED IN THE LATTER PART OF FEBRUARY, 1948; AND
THAT TRANSMARITIMA HAD SOLD AND TRANSFERRED THE CARIBE TO DEL CARIBE ON
FEBRUARY 25.  FN2  FROM THESE FACTS THE DISTRICT JUDGE CONCLUDED THAT
THERE WAS NO JURISDICTION IN ADMIRALTY TO INQUIRE INTO THE RELATIONS
BETWEEN THE TWO RESPONDENT COMPANIES OR THE SALE OF THE CARIBE.  IN ANY
EVENT, THE COURT DECLINED TO EXERCISE JURISDICTION TO LOOK INTO THE
TRANSFER SINCE IT HAD TAKEN PLACE BETWEEN TWO FOREIGN CORPORATIONS AND
IN A FOREIGN COUNTRY.  ACCORDINGLY, THE ATTACHMENT WAS ORDERED TO BE
VACATED.  WHILE LIBELLANTS SUBMITTED ADDITIONAL EVIDENCE UPON A
REHEARING, THE COURT ADHERED TO ITS ORIGINAL VIEWS.  83 F.SUPP.  273. 

THE COURT OF APPEALS AFFIRMED.  IT HELD THAT JURISDICTION TO SET
ASIDE A FRAUDULENT TRANSFER BEFORE JUDGMENT ON THE MAIN CLAIM WAS AT
BEST "DOUBTFUL," THAT THERE WAS DISCRETION TO DECLINE JURISDICTION ON
PRINCIPLES OF FORUM NON CONVENIENS, AND THAT, IN ANY EVENT, LIBELLANTS
AHD NOT SUSTAINED THEIR BURDEN OF PRODUCING PROOF THAT THE TRANSFER WAS
FRAUDULENT.  FN3  175 F.2D 513. 

THIS WE BELIEVE TO BE A FAIR RESUME OF AN UNCOMMONLY CONFUSED AND
OPAQUE RECORD.  IT IS ESPECIALLY HAMPERING THAT THE RECORD IS NOT
CLEARER THAN IT IS WHEN LEGAL ISSUES OF REAL COMPLEXITY ARE IN
CONTROVERSY. 

I. THERE IS A THRESHOLD QUESTION AS TO THE JURISDICTION OF THE COURT
BELOW TO ENTERTAIN THE APPEAL.  IT IS CLAIMED THAT THE ORDER VACATING
THE ATTACHMENT WAS NOT A FINAL ORDER AND THEREFORE NOT REVIEWABLE. 

WE BELIEVE THAT THE ORDER COMES SQUARELY WITHIN THE CONSIDERATIONS OF
OUR RECENT DECISION IN COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337
U.S. 541.  THE LITIGATION ARISING OUT OF THE CLAIM OF THE LIBELLANTS
HAS NOT RUN ITS ENTIRE COURSE, BUT THE ORDER NOW HERE, LIKE THAT IN THE
COHEN CASE, "APPEARS TO FALL IN THAT SMALL CLASS WHICH FINALLY
DETERMINE CLAIMS OF RIGHT SEPARABLE FROM, AND COLLATERAL TO, RIGHTS
ASSERTED IN THE ACTION, TOO IMPORTANT TO BE DENIED REVIEW AND TOO
INDEPENDENT OF THE CAUSE ITSELF TO REQUIRE THAT APPELLATE CONSIDERATION
BE DEFERRED UNTIL THE WHOLE CASE IS ADJUDICATED."  337 U.S. AT 546. 
APPELLATE REVIEW OF THE ORDER DISSOLVING THE ATTACHMENT AT A LATER DATE
WOULD BE AN EMPTY RITE AFTER THE VESSEL HAD BEEN RELEASED AND THE
RESTORATION OF THE ATTACHMENT ONLY THEORETICALLY POSSIBLE.  CF. THE
PANAGHIA KATHARIOTISA, 165 F.2D 430.  UNDER THESE CIRCUMSTANCES THE
PROVISION FOR APPEALS ONLY FROM FINAL DECISIONS IN 28 U.S.C. SEC. 1291
SHOULD NOT BE CONSTRUED SO AS TO DENY EFFECTIVE REVIEW OF A CLAIM
FAIRLY SEVERABLE FROM THE CONTEXT OF A LARGER LITIGIOUS PROCESS.  SEE
COBBLEDICK V. UNITED STATES, 309 U.S. 323, 328-29.  THE SITUATION IS
QUITE DIFFERENT WHERE AN ATTACHMENT IS UPHELD PENDING DETERMINATION OF
THE PRINCIPAL CLAIM.  SUCH WAS CUSHING V. LAIRD, 107 U.S. 69, WHICH IS
URGED ON US.  IN SUCH A SITUATION THE RIGHTS OF ALL THE PARTIES CAN BE
ADEQUATELY PROTECTED WHILE THE LITIGATION ON THE MAIN CLAIM PROCEEDS. 

II.  ON FINDING THAT THE CARIBE HAD BEEN SOLD BY TRANSMARITIMA TO DEL
CARIBE PRIOR TO THE FILING OF THE LIBEL, THE DISTRICT COURT DEEMED
ITSELF WITHOUT JURISDICTION TO DETERMINE WHETHER THE TRANSFER WAS
FRAUDULENT.  IN CONSEQUENCE IT FELT COMPELLED TO TREAT DEL CARIBE AS
THE OWNER OF THE VESSEL, AND SINCE ONLY THE PROPERTY OF TRANSMARITIMA
COULD BE VALIDLY ATTACHED THE ATTACHMENT HAD TO BE VACATED.  FN4 

THE REASONING OF THE DISTRICT COURT WAS BASED ON THE VIEW THAT A
CLAIM OF FRAUD IN THE TRANSFER OF A VESSEL WAS A MATTER FOR
DETERMINATION BY A COURT OF EQUITY AND THEREFORE OUTSIDE THE BOUNDS OF
ADMIRALTY JURISDICTION.  THERE IS A GOOD DEAL OF LOOSE TALK TO THIS
EFFECT IN THE REPORTS, CONCURRENT WITH TALK THAT COURTS OF ADMIRALTY
EXERCISE THEIR JURISDICTION UPON EQUITABLE PRINCIPLES.  EVEN AS TO
ADMIRALTY JURISDICTION WE MUST BE WARY OF VERBAL GENERALIZATIONS
UNRELATED TO THEIR APPLICATIONS.  NOT THE LEAST CREATIVE ACHIEVEMENT OF
JUDICIAL LAW-MAKING IS THE BODY OF DOCTRINES THAT HAS BEEN DERIVED FROM
THE BRIEF WORDS OF THE CONSTITUTION EXTENDING THE JUDICIAL POWER "TO
ALL CASES OF ADMIRALTY AND MARITIME JURISDICTION."  U.S. CONST. ART.
III, SEC. 2.  BUT IT WOULD BE BEYOND HUMAN ACHIEVEMENT EVEN OF A LONG
LINE OF JUDGES ESPECIALLY EQUIPPED FOR DEALING WITH ADMIRALTY MATTERS
TO HAVE PRODUCED A WHOLLY HARMONIOUS BODY OF ADMIRALTY LAW, OR TO HAVE
WRITTEN OPINIONS THAT SHOULD NOT HAVE LENT THEMSELVES THROUGH LARGENESS
OR LOOSENESS OF STATEMENT BEYOND THE SCOPE OF THEIR ADJUDICATIONS. 

UNQUESTIONABLY A COURT OF ADMIRALTY WILL NOT ENFORCE AN INDEPENDENT
EQUITABLE CLAIM MERELY BECAUSE IT PERTAINS TO MARITIME PROPERTY.  E.G.,
THE ECLIPSE, 135 U.S. 599, 608, AND CASES CITED.  THE REASONING OF THE
DISTRICT COURT WOULD BE PERTINENT IF THE LIBELLANTS, AS CREDITORS OF
TRANSMARITIMA, HAD GONE INTO ADMIRALTY BY WAY OF A CREDITOR'S BILL TO
SET ASIDE A PRETENDED SALE OF THE CARIBE AS A FRAUDULENT TRANSFER.  BUT
THAT IS NOT THE CASE BEFORE US.  LIBELLANTS WENT INTO ADMIRALTY ON A
CLAIM ARISING UPON A CONTRACT OF AFFREIGHTMENT SUPPLEMENTED BY CHARGES
OF NEGLIGENCE IN THE NONDELIVERY OF A SEA CARGO - MATTERS OBVIOUSLY
WITHIN ADMIRALTY JURISDICTION.  AS AN INCIDENT TO THAT CLAIM, IN ORDER
TO SECURE RESPONDENTS' APPEARANCE AND TO INSURE THE FRUITS OF A DECREE
IN LIBELLANTS' FAVOR, THEY MADE AN ATTACHMENT UNDER GENERAL ADMIRALTY
RULE 2.  FN5 THE ISSUE OF FRAUD ARISES IN CONNECTION WITH THE
ATTACHMENT AS A MEANS OF EFFECTUATING A CLAIM INCONTESTABLY IN
ADMIRALTY.  TO DENY AN ADMIRALTY COURT JURISDICTION OVER THIS
SUBSIDIARY OR DERIVATIVE ISSUE IN A LITIGATION CLEARLY MARITIME WOULD
REQUIRE AN ABSOLUTE RULE THAT ADMIRALTY IS RIGOROUSLY EXCLUDED FROM ALL
CONTACT WITH NONMARITIME TRANSACTIONS AND FROM ALL EQUITABLE RELIEF,
EVEN THOUGH SUCH NONMARITIME TRANSACTIONS COME INTO PLAY, AND SUCH
EQUITABLE RELIEF IS SOUGHT, IN THE COURSE OF ADMIRALTY'S EXERCISE OF
ITS JURISDICTION OVER A MATTER EXCLUSIVELY MARITIME.  IT WOULD BE
STRANGE INDEED THUS TO HOBBLE A LEGAL SYSTEM THAT HAS BEEN SO
RESPONSIVE TO THE PRACTICALITIES OF MARITIME COMMERCE AND SO INVENTIVE
IN ADAPTING ITS JURISDICTION TO THE NEEDS OF THAT COMMERCE. 
CONTROVERSIES BETWEEN ADMIRALTY AND COMMON LAW ARE FAMILIAR LEGAL
HISTORY.  SEE MR. JUSTICE STORY'S CLASSIC OPINION IN DE LOVIO V. BOIT,
7 FED. CAS. 418, NO. 3,776, 2 GALL.  398; 4 BENEDICT ON ADMIRALTY CC.
61-63(KNAUTH ED. 1940).  WE FIND NO RESTRICTION UPON ADMIRALTY BY
CHANCERY SO UNRELENTING AS TO BAR THE GRANT OF ANY EQUITABLE RELIEF
EVEN WHEN THAT RELIEF IS SUBSIDIARY TO ISSUES WHOLLY WITHIN ADMIRALTY
JURISDICTION.  CERTAINLY THERE IS NO GROUND FOR BELIEVING THAT THIS
RESTRICTION WAS ACCEPTED AS A MATTER OF COURSE BY THE FRAMERS OF THE
CONSTITUTION SO THAT SUCH STERILIZATION OF ADMIRALTY JURISDICTION CAN
BE SAID TO HAVE BEEN PRESUPPOSED BY ARTICLE III OF THE CONSTITUTION. 

A FEW ILLUSTRATIVE CASES WILL TAKE US OUT OF THE FOG OF GENERALITIES,
FOR THE DECISIONS DEALING WITH CONCRETE SITUATIONS AFFORD A WORKING
APPROACH EVEN IF NOT A RIGID RULE. 

NONMARITIME CONTRACTS MAY BE EXAMINED TO DETERMINE WHETHER THEY
CONSTITUTE A VALID DEFENSE, ALTHOUGH THE SAME CONTRACTS WILL NOT
SUPPORT A LIBEL OR CROSS-LIBEL FOR AFFIRMATIVE RELIEF.  ARMOUR & CO. V.
FORT MORGAN S.S. CO., 270 U.S. 253, 258-60.  AN EQUITABLE CLAIM WHICH
DOES NOT SUPPORT A POSSESSORY SUIT MAY BE AVAILED OF AS A VALID DEFENSE
AGAINST A SIMILAR SUIT BY THE HOLDER OF LEGAL TITLE.  CHIRURG V.
KNICKERBOCKER STEAM TOWAGE CO., 174 F. 188; CF. THE DAISY, 29 F. 300;
SEE MORRISON, REMEDIAL POWERS OF THE ADMIRALTY, 43 YALE L.J. 1,
21(1933).  ADMIRALTY CANNOT ENTERTAIN A SUIT TO REFORM A RELEASE FROM
LIABILITY EXECUTED UNDER A MUTUAL MISTAKE MERELY BECAUSE IT PERTAINS TO
A MARITIME CLAIM; BUT WHEN SUCH A RELEASE IS PLEADED IN DEFENSE AGAINST
ASSERTION OF THAT CLAIM, ADMIRALTY IS NOT BARRED FROM DETERMINING
WHETHER IT WAS EXECUTED BY THE PARTIES UNDER MUTUAL MISTAKE.  RICE V.
CHARLES DREIFUS CO., 96 F.2D 80.  AND SO AS TO ACCOUNTING, "IT IS TRUE
THAT A COURT OF ADMIRALTY WILL NOT ENTERTAIN A SUIT FOR AN ACCOUNTING
AS SUCH:  AS, FOR EXAMPLE, AN ACCOUNTING BETWEEN CO-OWNERS OF A VESSEL,
OR BETWEEN MARITIME ADVENTURERS, OR BETWEEN PRINCIPAL AND AGENT  ...
(CITING CASES).  NEVERTHELESS, IT HAS NEVER BEEN TRUE, WHEN AN
ACCOUNTING IS NECESSARY TO THE COMPLETE ADJUSTMENT OF RIGHTS OVER WHICH
ADMIRALTY HAS INDEPENDENT JURISDICTION, THAT IT WILL SUSPEND ITS
REMEDIES MIDWAY AND REQUIRE THE PARTIES TO RESORT TO ANOTHER COURT." 
W.E. HEDGER TRANSP.  CORP.  V. IRA S. BUSHEY & SONS, INC., 155 F.2D
321, 323, PER LEARNED HAND, J.    IN EACH OF THESE CASES A HOLDING THAT
ADMIRALTY MUST STAY ITS HANDS AS TO A MATTER INTRINSICALLY NONMARITIME
BUT "NECESSARY TO THE COMPLETE ADJUSTMENT OF RIGHTS OVER WHICH
ADMIRALTY HAS INDEPENDENT JURISDICTION" WOULD HAVE SERIOUSLY IMPAIRED
THE DISCHARGE BY ADMIRALTY OF THE TASK WHICH BELONGS TO IT.  TO
RECOGNIZE THESE SUBSIDIARY POWERS OF ADMIRALTY TO DEAL JUSTLY WITH THE
CLAIMS THAT ARE WITHIN ITS JURISDICTION IS NOT TO ENLARGE THE ADMIRALTY
JURISDICTION BUT TO AVOID ITS MUTILATING RESTRICTION.  TO GENERALIZE
BEYOND THIS IS TO INVITE MISLEADING OR EMPTY ABSTRACTIONS. 

WE CAN NOW SEE THE IMMEDIATE PROBLEM IN ITS PROPER PERSPECTIVE.  THE
PROCESS OF FOREIGN ATTACHMENT IS KNOWN OF OLD IN ADMIRALTY.  IT HAS TWO
PURPOSES:  TO SECURE A RESPONDENT'S APPEARANCE AND TO ASSURE
SATISFACTION IN CASE THE SUIT IS SUCCESSFUL.  MANRO V. ALMEIDA, 10
WHEAT.  473, 489.  WHILE THE PROCESS MAY BE UTILIZED ONLY WHEN A
RESPONDENT IS NOT FOUND WITHIN THE JURISDICTION, AN ATTACHMENT IS NOT
DISSOLVED BY THE SUBSEQUENT APPEARANCE OF RESPONDENT.  SEE BIRDSALL V.
GERMAIN CO., 227 F. 953, 955; 2 BENEDICT ON ADMIRALTY SEC. 290(KNAUTH
ED. 1940).  DISPUTES OVER OWNERSHIP OF ATTACHED VESSELS ARE OF COURSE
INEVITABLE SINCE ONLY THE RESPONDENT'S PROPERTY MAY BE ATTACHED.  E.G.,
CUSHING V. LAIRD, 107 U.S. 69; CF. MCGAHERN V. KOPPERS COAL CO., 108
F.2D 652; KINGSTON DRY DOCK CO. V. LAKE CHAMPLAIN TRANSP.  CO., 31 F.2D
265.  INEVITABLY SUCH DISPUTES MAY INVOLVE TRANSACTIONS NOT THEMSELVES
THE SUBJECT MATTER OF AN INDEPENDENT LIBEL.  IF JURISDICTION BE WANTING
IN A COURT OF ADMIRALTY WHEN SUCH A CONTROVERSY ARISES IN THE CONTEXT
OF AN ATTACHMENT MADE IN A LIBEL OVER WHICH THE COURT INDUBITABLY HAS
JURISDICTION, A CONGENITAL DEFECT WOULD HAVE TO BE ATTRIBUTED TO THE
ANCIENT PROCESS OF FOREIGN ATTACHMENT.  IF COLORABLE TRANSFERS OF
PROPERTY WERE IMMUNE TO CHALLENGE IN A COURT OF ADMIRALTY WHEN A LIBEL
IN PERSONAM HAS BEEN BROUGHT IN A DISTRICT WHERE THE RESPONDENT CANNOT
BE PERSONALLY SERVED, ADMIRALTY JURISDICTION WOULD BE SACRIFICED TO A
STERILE THEORY OF JUDICIAL SEPARATISM.  NO SUPPORT FOR SUCH A
CONCLUSION IS TO BE FOUND IN ANY DECISION OF THIS COURT OR IN THOSE OF
THE LOWER COURTS WHICH HAVE HAD SO LARGE A SHARE IN THE DEVELOPMENT OF
ADMIRALTY LAW.  THE RELEVANT RULINGS LOOK THE OTHER WAY. 

IN LEE V. THOMPSON, 15 FED. CAS. 233, NO. 8,202, 3 WOODS 167, MR.
JUSTICE BRADLEY HELD THAT AN ADMIRALTY COURT HAD POWER TO LOOK INTO AN
ALLEGEDLY FRAUDULENT TRANSFER WHERE THE QUESTION WAS RELEVANT TO
EXECUTION UPON A DECREE IN ADMIRALTY.  HE FULLY RECOGNIZED THAT A LIBEL
BASED SOLELY ON THE TRANSFER COULD NOT BE MAINTAINED, BUT WHERE THAT
ISSUE WAS "INCIDENTAL TO ITS GENERAL JURISDICTION, AND FOR MAINTAINING
THE SAME, IT (THE ADMIRALTY COURT) HAS PLENARY POWER TO DECIDE, AND
FREQUENTLY DOES DECIDE, CONFLICTING CLAIMS TO PROPERTY.  WITHOUT SUCH
POWER ITS JURISDICTION WOULD OFTEN BE DEFEATED."  15 FED. CAS. AT 235;
3 WOODS AT 173.  THE FORCE OF MR. JUSTICE BRADLEY'S DECISION IS SOUGHT
TO BE CUT DOWN IN THAT IT DEALT WITH EXECUTION ON A JUDGMENT AND NOT
WITH AN ATTACHMENT.  FN6  THE FACT IS, HOWEVER, THAT MR. JUSTICE
BRADLEY RELIED IN HIS REASONING ON THE PROCESS OF FOREIGN ATTACHMENT,
AND REASON REJECTS ANY SIGNIFICANT DISTINCTION BETWEEN THE JURISDICTION
OF ADMIRALTY TO INQUIRE INTO A FRAUDULENT TRANSFER IN THE TWO
SITUATIONS.  IN BOTH ADMIRALTY IS NOT SEIZED OF JURISDICTION TO CORRECT
A FRAUD SIMPLY BECAUSE IT IS A FRAUD; THAT'S THE BUSINESS OF EQUITY. 
THE BASIS OF ADMIRALTY'S POWER IS TO PROTECT ITS JURISDICTION FROM
BEING THWARTED BY A FRAUDULENT TRANSFER, AND THAT APPLIES EQUALLY
WHETHER IT IS CONCERNED WITH EXECUTING ITS JUDGMENT OR AUTHORIZING AN
ATTACHMENT TO SECURE AN INDEPENDENT MARITIME CLAIM.  CF. THE NEW YORK,
113 F. 810; THE COLUMBIA, 100 F. 890(JUDGMENT IN ADMIRALTY VACATED
BECAUSE OBTAINED BY FRAUD). 

WE MUST CONCLUDE THAT THE DISTRICT COURT WAS NOT WITHOUT POWER TO
LOOK INTO THE TRANSFER OF THE CARIBE UNDER THE CIRCUMSTANCES OF THIS
SUIT.  BUT BECAUSE POWER EXISTS, ITS USE IS NOT INEXORABLE.  CF.
MASSACHUSETTS V. MISSOURI, 308 U.S. 1, 19.  WE WOULD BE PASSING ON
SITUATIONS NOT BEFORE US WERE WE TO ATTEMPT NOW TO DEFINE WHEN POWER
WHICH WE RECOGNIZE SHOULD BE WITHHELD.  IN THE CIRCUMSTANCES OF THIS
CASE THE POWER SHOULD BE EXERCISED, FOR THERE ARE GOOD REASONS FOR THE
ATTACHMENT.  IF THE LIBELLANTS ARE ULTIMATELY SUCCESSFUL, JUDGMENT MAY
WELL AVAIL THEM NOTHING UNLESS DULY SECURED.  CF. ASIATIC PETROLEUM
CORP. V. ITALIA SOCIETA ANONIMA DI NAVIGAZIONE, 119 F.2D 610.  THE
ISSUES OF FACT ON WHICH LIBELLANTS' CLAIM OF FRAUD TURN DO NOT APPEAR
TO BE COMPLICATED AND THEY MAY BE SPEEDILY ADJUDICATED BY THE DISTRICT
COURT PRIOR TO A HEARING ON THE AFFREIGHTMENT CONTRACT. 

III.  IT IS URGED THAT, EVEN IF THERE EXISTED POWER TO ASCERTAIN
WHETHER THE TRANSFER WAS FRAUDULENT, VACATION OF THE ATTACHMENT WAS
JUSTIFIED BY LIBELLANTS' FAILURE TO ESTABLISH A PRIMA FACIE CASE OF
FRAUD.  NO DOUBT, THE ULTIMATE BURDEN OF ESTABLISHING A FRAUDULENT
TRANSFER WAS UPON LIBELLANTS.  SEE CUSHING V. LAIRD, 107 U.S. 69, 83
84.  UNDER ADMIRALTY RULE 23 OF THE DISTRICT COURT FOR THE CANAL ZONE,
FN7  THE DISTRICT JUDGE MIGHT HAVE REQUIRED LIBELLANTS TO PRESENT THEIR
PROOF IN ORDER TO DETERMINE WHETHER SUBSTANTIAL QUESTIONS OF FACT WERE
RAISED RESPECTING THE FRAUDULENCE OF THE TRANSFER.  HAD LIBELLANTS THEN
FAILED TO RESPOND WITHOUT ADEQUATE REASON, THE ATTACHMENT WOULD
PROPERLY HAVE BEEN VACATED. 

RULE 23 WAS IN SUBSTANCE INVOKED BY RESPONDENTS, AS THE COURT OF
APPEALS HELD, BUT THE RECORD DOES NOT SUPPORT THE VIEW THAT ITS
INVOCATION PUT LIBELLANTS TO THEIR PROOF THAT THE TRANSFER WAS
FRAUDULENT.  THEY HAD NO REASON TO BELIEVE THAT SUCH PROOF WAS NEEDED
BEFORE TRIAL.  NEITHER OF THE TWO MOTIONS OF RESPONDENTS TO VACATE THE
ATTACHMENT RESTED ON AN ABSENCE OF FRAUD AS A MATTER OF FACT. 
RESPONDENTS PRESENTED EVIDENCE THROUGH AFFIDAVITS THAT A NEW
CORPORATION HAD BEEN FORMED AND A TRANSFER OF TITLE TO THE VESSEL
EFFECTED, BUT THIS WAS ONLY TO SUPPORT THEIR CHARGES THAT THE COURT
LACKED JURISDICTION, THAT IN ANY EVENT IT SHOULD DECLINE JURISDICTION
UNDER PRINCIPLES OF FORUM NON CONVENIENS, AND THAT THE ALLEGATIONS IN
THE LIBEL DID NOT STATE A CAUSE OF ACTION.  NOR WERE LIBELLANTS PUT ON
NOTICE BY THE DISTRICT COURT'S FIRST OPINION TO PUT IN PROOF ON
REHEARING.  ITS HOLDING WAS BASED ON LACK OF JURISDICTION TO INQUIRE
INTO THE TRANSFER OR, ALTERNATIVELY, ON DISCRETION TO DECLINE ITS
EXERCISE.  QUITE CLEARLY IT DID NOT DETERMINE THE ISSUE OF FRAUD IN THE
TRANSFER.  THE OPINION DENYING REHEARING DID NOT BREAK NEW GROUND.  ON
THESE FACTS, THE ATTACHMENT COULD NOT BE VACATED FOR A FAILURE OF
LIBELLANTS TO SUPPORT THEIR CHARGE OF A FRAUDULENT TRANSFER.  FN8 

IV. THERE REMAINS THE QUESTION WHETHER THE DISTRICT COURT'S ORDER MAY
BE JUSTIFIED AS AN EXERCISE OF DISCRETION TO DECLINE JURISDICTION UNDER
THE DOCTRINE OF FORUM NON CONVENIENS.  THE DOCTRINE IS OF LONG STANDING
IN ADMIRALTY, BUT THIS COURT HAS NOT PREVIOUSLY HAD TO APPLY IT TO A
SUIT BROUGHT BY A UNITED STATES CITIZEN.  SUCH APPLICATION HAS BEEN
RARE EVEN IN THE LOWER FEDERAL COURTS.  CF. CANADA MALTING CO. V.
PATERSON STEAMSHIPS, LTD., 285 U.S. 413; UNITED STATES MERCHANTS' &
SHIPPERS' INS. CO. V. A/S DEN NORSKE AFRIKA OG AUSTRALIE LINE, 65 F.2D
392; SEE BRAUCHER, THE INCONVENIENT FEDERAL FORUM, 60 HARV. L. REV.
908, 920-21(1947); BICKEL, FORUM NON CONVENIENS IN ADMIRALTY, 35
CORNELL L.Q. 12, 41-47(1949).  WE NEED NOT NOW DECIDE THE ABSTRACT
QUESTION WHETHER UNITED STATES ADMIRALTY COURTS MAY DECLINE
JURISDICTION OVER LIBELS BROUGHT BY UNITED STATES CITIZENS.  DISCRETION
COULD NOT SUSTAIN DECLINATION IN THIS CASE.  APPLICATION OF FORUM NON
CONVENIENS PRINCIPLES TO A SUIT BY A UNITED STATES CITIZEN AGAINST A
FOREIGN RESPONDENT BRINGS INTO FORCE CONSIDERATIONS VERY DIFFERENT FROM
THOSE IN SUITS BETWEEN FOREIGNERS.  FN9  THE DISTRICT COURT GAVE NO
INDICATION THAT IT RECOGNIZED SUCH CONSIDERATIONS.  ITS OPINION
INDICATES THAT IN SO FAR AS IT MAY HAVE EXERCISED DISCRETION TO DECLINE
JURISDICTION IT WAS MOVED TO DO SO BY ITS VIEW THAT SUCH JURISDICTION
DOES NOT EXIST.  BUT, IN ANY EVENT, IT WAS IMPROPER UNDER THE
CIRCUMSTANCES HERE SHOWN TO REMIT A UNITED STATES CITIZEN TO THE COURTS
OF A FOREIGN COUNTRY WITHOUT ASSURING THE CITIZEN THAT RESPONDENTS
WOULD APPEAR IN THOSE COURTS AND THAT SECURITY WOULD BE GIVEN EQUAL TO
WHAT HAD BEEN OBTAINED BY ATTACHMENT IN THE DISTRICT COURT.  THE POWER
OF THE DISTRICT COURT TO GIVE A LIBELLANT SUCH ASSURANCE IS SHOWN BY
CANADA MALTING CO. V. PATERSON STEAMSHIPS, LTD., 285 U.S. 413, 424. 
SEE ALSO THE CITY OF AGRA, 35 F.SUPP.  351.  WHILE THE DISTRICT COURT
EXERCISED DISCRETION TO VACATE ONLY THE ATTACHMENT AND NOT TO DISMISS
THE ENTIRE LIBEL, LIBELLANTS' RIGHTS WERE SERIOUSLY IMPAIRED BY THEIR
LOSS OF SECURITY.  THE IMPORTANCE OF THE RIGHT TO PROCEED BY ATTACHMENT
TO AFFORD SECURITY HAS BEEN EMPHASIZED.  E.G., IN RE LOUISVILLE
UNDERWRITERS, 134 U.S. 488; ASIATIC PETROLEUM CORP. V. ITALIA SOCIETA
ANONIMA DI NAVIGAZIONE, 119 F.2D 610.  LIBELLANTS' RIGHT TO MAINTAIN
THE ATTACHMENT WILL DEPEND ON THEIR ABILITY TO PROVE FRAUD IN THE
TRANSFER OF THE CARIBE UPON A HEARING.  THEY ARE ENTITLED TO HAVE THAT
HEARING. 

THE CASE MUST BE REVERSED AND REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  THE MARSHAL'S RETURN FAILED TO STATE THAT RESPONDENTS COULD NOT
BE FOUND WITHIN THE JURISDICTION.  CF. INTERNATIONAL GRAIN CEILING CO.
V. DILL, 13 FED. CAS. 70, NO. 7,053, 10 BEN.  92.  THE COURT OF APPEALS
PROPERLY HELD THIS TO BE A FORMAL DEFECT, EASILY CORRECTIBLE ON
REMAND. 

FN2  THE DISTRICT JUDGE ALSO FOUND THAT THE STOCKHOLDERS AND MANAGING
OFFICERS OF THE TWO RESPONDENTS WERE NOT IDENTICAL, BUT THESE FACTS
WERE IRRELEVANT TO HIS DISPOSITION OF THE CASE AND ARE TO THE
DISPOSITION MADE HERE. 

FN3  THE DISTRICT COURT DID NOT DISMISS THE GARNISHMENT PROCEEDING
AGAINST DEL CARIBE, SINCE THAT COMPANY WAS ALLEGEDLY INDEBTED TO
TRANSMARITIMA AND SOME OF THE PROPERTY OF THE CALI HAD BEEN ATTACHED
ABOARD THE CARIBE.  THE COURT OF APPEALS SUGGESTED THAT THE ISSUE OF
FRAUD IN THE TRANSFER OF THE CARIBE COULD BE ADJUDICATED AS PART OF THE
GARNISHMENT PROCEEDING. 

FN4  LIBELLANTS ALSO SOUGHT TO HOLD DEL CARIBE PERSONALLY LIABLE FOR
THE DESTRUCTION OF THE CALI'S CARGO OF RICE ON THE GROUND THAT IT WAS
MERELY THE ALTER EGO OF TRANSMARITIMA.  SUCCESS ON THIS THEORY WOULD
RENDER THE ISSUE OF FRAUDULENT TRANSFER IRRELEVANT, FOR THEN THE ASSETS
OF EITHER COMPANY COULD BE ATTACHED.  THE JURISDICTION OF A COURT OF
ADMIRALTY TO DETERMINE THE QUESTION OF ALTER EGO IS UNDOUBTED.  THE
WILLEM VAN DRIEL, SR., 252 F. 35; LUCKENBACH S.S. CO. V. W. R. GRACE &
CO., 267 F. 676; YONE SUZUKI V. CENTRAL ARGENTINE R. CO., 27 F.2D 795,
806; KINGSTON DRY DOCK CO. V. LAKE CHAMPLAIN TRANSP.  CO., 31 F.2D 265;
GARDNER V. DANTZLER LUMBER & EXPORT CO., 98 F.2D 478.  BUT IT IS
SETTLED DOCTRINE THAT, APART FROM ANY TRANSFER OF ASSETS BY
TRANSMARITIMA TO DEL CARIBE, THE LATTER COMPANY COULD NOT BE HELD
PERSONALLY LIABLE ON AN ALTER EGO THEORY, SINCE IT CAME INTO EXISTENCE
AFTER THE CALI SANK.  YONE SUZUKI V. CENTRAL ARGENTINE R. CO., SUPRA;
KINGSTON DRY DOCK CO. V. LAKE CHAMPLAIN TRANSP.  CO., SUPRA. 

IT IS IMPORTANT TO NOTE, HOWEVER, THAT THE RELATIONSHIP BETWEEN THE
TWO RESPONDENT COMPANIES HAS AN OBVIOUS RELEVANCE TO THE ISSUE OF
FRAUDULENT TRANSFER. 

FN5  THE RELEVANT PORTION OF GENERAL ADMIRALTY RULE 2 IS AS FOLLOWS: 

"IN SUITS IN PERSONAM THE MESNE PROCESS SHALL BE BY A SIMPLE MONITION
IN THE NATURE OF A SUMMONS TO APPEAR AND ANSWER TO THE SUIT, OR BY A
SIMPLE WARRANT OF ARREST OF THE PERSON OF THE RESPONDENT IN THE NATURE
OF A CAPIAS, AS THE LIBELLANT MAY, IN HIS LIBEL OR INFORMATION PRAY FOR
OR ELECT; IN EITHER CASE WITH A CLAUSE THEREIN TO ATTACH HIS GOODS AND
CHATTELS, OR CREDITS AND EFFECTS IN THE HANDS OF THE GARNISHEES NAMED
IN THE LIBEL TO THE AMOUNT SUED FOR, IF SAID RESPONDENT SHALL NOT BE
FOUND WITHIN THE DISTRICT." 

FN6  THE COURT OF APPEALS APPARENTLY REGARDED THIS DISTINCTION AS
IMPORTANT, FOR IT HELD THAT THE ISSUES RELATING TO THE VESSEL CARIBE
MIGHT BE ADJUDICATED IN THE GARNISHMENT PROCEEDING BUT NOT IN
CONNECTION WITH THE ATTACHMENT. 

FN7  THE RELEVANT PORTION OF RULE 23 IS AS FOLLOWS: 

"IN CASE OF THE ATTACHMENT OF PROPERTY  ... THE PARTY ARRESTED OR ANY
PERSON HAVING A RIGHT TO INTERVENE IN RESPECT OF THE THING ATTACHED,
MAY, UPON EVIDENCE SHOWING ANY IMPROPER PRACTICE OR A MANIFEST WANT OF
EQUITY ON THE PART OF THE LIBELLANT, HAVE AN ORDER FROM THE JUDGE
REQUIRING THE LIBELLANT TO SHOW CAUSE INSTANTER WHY THE ARREST OR
ATTACHMENT SHOULD NOT BE VACATED."  SEE 5 BENEDICT ON ADMIRALTY
(WHITMAN ED. 1949) 234. 

FN8  THE EIGHT MONTHS INTERVENING BETWEEN THE FILING OF THE LIBEL AND
THE OPINION ON REHEARING WERE SPENT LARGELY ON RESPONDENTS' MOTIONS AND
TO AFFORD RESPONDENTS OPPORTUNITY TO FILE ANSWERS.  IT IS ALSO
PERTINENT THAT LIBELLANTS' INTERROGATORIES TO DEL CARIBE WERE NEVER
ANSWERED AND THE EXCEPTIONS TAKEN TO THEM NEVER PASSED ON BY THE
DISTRICT COURT.  THE EVIDENCE CONTAINED IN RESPONDENTS' AFFIDAVITS WAS
INADEQUATE TO SUPPORT ANY DETERMINATION OF THE FRAUD ISSUE.  OF COURSE,
IF THE COURT HAD REQUIRED LIBELLANTS TO PRESENT SUCH PROOF AS THEY HAD,
IT WOULD HAVE BEEN FOR THEM TO MOVE THAT THE EXCEPTIONS TO THE
INTERROGATORIES BE OVERRULED.  BUT, AS INDICATED, THE IMPORTANCE OF
SUCH A MOVE WAS NEVER MADE CLEAR. 

FN9  COMPARE KOSTER V. LUMBERMENS MUTUAL CASUALTY CO., 330 U.S. 518,
524:  "IN ANY BALANCING OF CONVENIENCES, A REAL SHOWING OF CONVENIENCE
BY A PLAINTIFF WHO HAS SUED IN HIS HOME FORUM WILL NORMALLY OUTWEIGH
THE INCONVENIENCE THE DEFENDANT MAY HAVE SHOWN."  SEE ALSO O'NEILL V.
CUNARD WHITE STAR, LTD., 160 F.2D 446.    MR. JUSTICE DOUGLAS TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :





















UNITED STATES V. LOUISIANA, 339 U.S. 699 


ARGUED MARCH 27, 1950.  - DECIDED JUNE 5, 1950. 


1.  IN THIS SUIT, BROUGHT IN THIS COURT BY THE UNITED STATES AGAINST
THE STATE OF LOUISIANA UNDER ART. III, SEC. 2, CL. 2 OF THE
CONSTITUTION, HELD:  THE UNITED STATES IS ENTITLED TO A DECREE
ADJUDGING AND DECLARING THE PARAMOUNT RIGHTS OF THE UNITED STATES AS
AGAINST LOUISIANA IN THE AREA CLAIMED BY LOUISIANA WHICH LIES UNDER THE
GULF OF MEXICO BEYOND THE LOW-WATER MARK ON THE COAST OF LOUISIANA AND
OUTSIDE OF THE INLAND WATERS, ENJOINING LOUISIANA AND ALL PERSONS
CLAIMING UNDER IT FROM CONTINUING TO TRESPASS UPON THE AREA IN
VIOLATION OF THE RIGHTS OF THE UNITED STATES, AND REQUIRING LOUISIANA
TO ACCOUNT FOR THE MONEY DERIVED BY IT FROM THE AREA AFTER JUNE 23,
1947.  UNITED STATES V. CALIFORNIA, 332 U.S. 19.  PP. 700-706. 

(A)  TOOMER V. WITSELL, 334 U.S. 385; NEW ORLEANS V. UNITED STATES,
10 PET. 662; POLLARD'S LESSEE V. HAGAN, 3 HOW.  212, DISTINGUISHED.  P.
704. 

(B)  THE MARGINAL SEA IS A NATIONAL, NOT A STATE, CONCERN, AND
NATIONAL RIGHTS ARE PARAMOUNT IN THAT AREA.  UNITED STATES V.
CALIFORNIA, SUPRA.  P. 704. 

(C)  PRIOR TO ITS ADMISSION TO THE UNION, LOUISIANA HAD NO STRONGER
CLAIM TO OWNERSHIP OF THE MARGINAL SEA THAN THE ORIGINAL THIRTEEN
COLONIES OR CALIFORNIA; AND LOUISIANA STANDS ON NO BETTER FOOTING THAN
CALIFORNIA, SO FAR AS THE THREE-MILE BELT IS CONCERNED.  P. 705. 

(D)  SINCE THE THREE-MILE BELT OFF THE SHORE IS IN THE DOMAIN OF THE
NATION RATHER THAN THAT OF THE SEPARATE STATES, IT FOLLOWS A FORTIORI
THAT THE AREA CLAIMED BY LOUISIANA EXTENDING 24 MILES SEAWARD BEYOND
THE THREE-MILE BELT IS ALSO IN THE DOMAIN OF THE NATION RATHER THAN
THAT OF LOUISIANA.  PP. 705-706. 

2.  IN RULING ON A MOTION FOR LEAVE TO FILE THE COMPLAINT IN THIS
CASE, 337 U.S. 902, THIS COURT HELD, IN EFFECT, THAT ART. III, SEC. 2,
CL. 2 OF THE CONSTITUTION, GRANTING THIS COURT ORIGINAL JURISDICTION IN
CASES "IN WHICH A STATE SHALL BE PARTY," INCLUDES CASES BROUGHT BY THE
UNITED STATES AGAINST A STATE, NOTWITHSTANDING A CLAIM THAT THE STATES
HAVE NOT CONSENTED TO BE SUED BY THE FEDERAL GOVERNMENT.  PP. 701-702. 

3.  IN RULING ON A DEMURRER AND MOTIONS FILED BY THE STATE OF
LOUISIANA, 338 U.S. 806, THIS COURT HELD, IN EFFECT, THAT IT HAD
ORIGINAL JURISDICTION OF THE PARTIES AND THE SUBJECT MATTER; THAT
LESSEES OF OIL, GAS AND OTHER SIMILAR RIGHTS IN THE DISPUTED AREA ARE
NOT INDISPENSABLE PARTIES TO THE CASE; AND THAT LOUISIANA WAS NOT
ENTITLED TO A MORE DEFINITE STATEMENT OF THE CLAIM OF THE UNITED STATES
OR TO A BILL OF PARTICULARS.  P. 702. 

4.  THIS BEING AN EQUITY SUIT FOR AN INJUNCTION AND ACCOUNTING,
LOUISIANA WAS NOT ENTITLED TO A JURY TRIAL.  EVEN IF THE SEVENTH
AMENDMENT AND 28 U.S.C. SEC. 1872 EXTEND TO CASES UNDER THE ORIGINAL
JURISDICTION OF THIS COURT, THEY REQUIRE JURY TRIALS ONLY IN ACTIONS AT
LAW.  P. 706. 

UNITED STATES V. LOUISIANA. 

NO. 12, ORIGIANL. 

THE CASE AND THE EARLIER PROCEEDINGS HEREIN ARE STATED IN THE OPINION
AT PP. 700-703.  THE CONCLUSION THAT THE UNITED STATES IS ENTITLED TO
THE RELIEF PRAYED FOR IS REPORTED AT P. 706. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BY ITS ATTORNEY GENERAL AND ITS SOLICITOR GENERAL
BROUGHT THIS SUIT AGAINST THE STATE OF LOUISIANA, INVOKING OUR
JURISDICTION UNDER ART. III, SEC. 2, CL. 2 OF THE CONSTITUTION WHICH
PROVIDES "IN ALL CASES  ...  IN WHICH A STATE SHALL BE PARTY, THE
SUPREME COURT SHALL HAVE ORIGINAL JURISDICTION." 

THE COMPLAINT ALLEGES THAT THE UNITED STATES WAS AND IS 

"THE OWNER IN FEE SIMPLE OF, OR POSSESSED OF PARAMOUNT RIGHTS IN, AND
FULL DOMINION AND POWER OVER, THE LANDS, MINERALS, AND OTHER THINGS
UNDERLYING THE GULF OF MEXICO, LYING SEAWARD OF THE ORDINARY LOW-WATER
MARK ON THE COAST OF LOUISIANA AND OUTSIDE OF THE INLAND WATERS,
EXTENDING SEAWARD TWENTY-SEVEN MARINE MILES AND BOUNDED ON THE EAST AND
WEST, RESPECTIVELY, BY THE EASTERN AND WESTERN BOUNDARIES OF THE STATE
OF LOUISIANA." 

THE COMPLAINT FURTHER ALLEGES THAT LOUISIANA, CLAIMING RIGHTS IN THAT
PROPERTY ADVERSE TO THE UNITED STATES, HAS MADE LEASES UNDER HER
STATUTES TO VARIOUS PERSONS AND CORPORATIONS WHICH HAVE ENTERED UPON
SAID LANDS, DRILLED WELLS FOR THE RECOVERY OF PETROLEUM, GAS AND OTHER
HYDROCARBON SUBSTANCES, AND PAID LOUISIANA SUBSTANTIAL SUMS OF MONEY IN
BONUSES, RENT, AND ROYALTIES, BUT THAT NEITHER LOUISIANA NOR ITS
LESSEES HAVE RECOGNIZED THE RIGHTS OF THE UNITED STATES IN SAID
PROPERTY. 

THE PRAYER OF THE COMPLAINT IS FOR A DECREE ADJUDGING AND DECLARING
THE RIGHTS OF THE UNITED STATES AS AGAINST LOUISIANA IN THIS AREA,
ENJOINING LOUISIANA AND ALL PERSONS CLAIMING UNDER IT FROM CONTINUING
TO TRESPASS UPON THE AREA IN VIOLATION OF THE RIGHT OF THE UNITED
STATES, AND REQUIRING LOUISIANA TO ACCOUNT FOR THE MONEY DERIVED BY IT
FROM THE AREA SUBSEQUENT TO JUNE 23, 1947. 

LOUISIANA OPPOSED THE MOTION FOR LEAVE TO FILE THE COMPLAINT,
CONTENDING THAT THE STATES HAVE NOT CONSENTED TO BE SUED BY THE FEDERAL
GOVERNMENT AND THAT UNITED STATES V. TEXAS, 143 U.S. 621, WHICH HELD
THAT ART. III, SEC. 2, CL. 2 OF THE CONSTITUTION, GRANTING THIS COURT
ORIGINAL JURISDICTION IN CASES "IN WHICH A STATE SHALL BE PARTY,"
INCLUDES CASES BROUGHT BY THE UNITED STATES AGAINST A STATE SHOULD BE
OVERRULED.  WE HEARD ARGUMENT ON THE MOTION FOR LEAVE TO FILE AND
THEREAFTER GRANTED IT.  337 U.S. 902, REHEARING DENIED, 337 U.S. 928. 

LOUISIANA THEN FILED A DEMURRER ASSERTING THAT THE COURT HAS NO
ORIGINAL JURISDICTION OF THE PARTIES OR OF THE SUBJECT MATTER.  SHE
MOVED TO DISMISS ON THE GROUND THAT THE LESSEES ARE INDISPENSABLE
PARTIES TO THE CASE; AND SHE ALSO MOVED FOR A MORE DEFINITE STATEMENT
OF THE CLAIM OF THE UNITED STATES AND FOR A BILL OF PARTICULARS.  THE
UNITED STATES MOVED FOR JUDGMENT.  THE DEMURRER WAS OVERRULED,
LOUISIANA'S MOTIONS DENIED, AND THE MOTION OF THE UNITED STATES FOR
JUDGMENT WAS DENIED, LOUISIANA BEING GIVEN 30 DAYS IN WHICH TO FILE AN
ANSWER.  338 U.S. 806. 

IN HER ANSWER LOUISIANA ADMITS THAT "THE UNITED STATES HAS PARAMOUNT
RIGHTS IN, AND FULL DOMINION AND POWER OVER, THE LANDS, MINERALS AND
OTHER THINGS UNDERLYING THE GULF OF MEXICO ADJACENT TO THE COAST OF
LOUISIANA, TO THE EXTENT OF ALL GOVERNMENTAL POWERS EXISTING UNDER THE
CONSTITUTION, LAWS AND TREATIES OF THE UNITED STATES," BUT ASSERTS THAT
THERE ARE NO CONFLICTING CLAIMS OF GOVERNMENTAL POWERS TO AUTHORIZE THE
USE OF THE BED OF THE GULF OF MEXICO FOR THE PURPOSE OF SEARCHING FOR
AND PRODUCING OIL AND OTHER NATURAL RESOURCES, ON WHICH THE RELIEF
SOUGHT BY THE UNITED STATES DEPENDS, SINCE THE CONGRESS HAS NOT ADOPTED
ANY LAW WHICH ASSERTS SUCH FEDERAL AUTHORITY OVER THE BED OF THE GULF
OF MEXICO.  LOUISIANA THEREFORE CONTENDS THAT THERE IS NO ACTUAL
JUSTICIABLE CONTROVERSY BETWEEN THE PARTIES.  LOUISIANA IN HER ANSWER
DENIES THAT THE UNITED STATES HAS A FEE SIMPLE TITLE TO THE LANDS,
MINERALS, AND OTHER THINGS UNDERLYING THE GULF OF MEXICO.  AS
AFFIRMATIVE DEFENSES LOUISIANA ASSERTS THAT SHE IS THE HOLDER OF FEE
SIMPLE TITLE TO ALL THE LANDS, MINERALS, AND OTHER THINGS IN
CONTROVERSY; AND THAT SINCE SHE WAS ADMITTED INTO THE UNION IN 1812,
SHE HAS EXERCISED CONTINUOUS, UNDISTURBED AND UNCHALLENGED SOVEREIGNTY
AND POSSESSION OVER THE PROPERTY IN QUESTION. 

LOUISIANA ALSO MOVED FOR TRIAL BY JURY.  SHE ASSERTS THAT THIS SUIT,
INVOLVING TITLE TO THE BEDS OF TIDE WATERS, IS ESSENTIALLY AN ACTION AT
LAW AND THAT THE SEVENTH AMENDMENT AND 62 STAT. 953, 28 U.S.C. SEC.
1872, REQUIRE A JURY.  FN1 

THE UNITED STATES THEN MOVED FOR JUDGMENT ON THE GROUND THAT
LOUISIANA'S ASSERTED DEFENSES WERE INSUFFICIENT IN LAW.  WE SET THE
CASE DOWN FOR ARGUMENT ON THAT MOTION. 

THE TERRITORY OUT OF WHICH LOUISIANA WAS CREATED WAS PURCHASED BY THE
UNITED STATES FROM FRANCE FOR $15,000,000 UNDER THE TREATY OF APRIL 30,
1803, 8 STAT. 200.  IN 1804 THE AREA THUS ACQUIRED WAS DIVIDED INTO TWO
TERRITORIES, ONE BEING DESIGNATED AS THE TERRITORY OF ORLEANS, 2 STAT.
283.  BY THE ENABLING ACT OF FEBRUARY 20, 1811, 2 STAT. 641, THE
INHABITANTS OF THE TERRITORY OF ORLEANS WERE AUTHORIZED TO FORM A
CONSTITUTION AND A STATE GOVERNMENT.  BY THE ACT OF APRIL 8, 1812, 2
STAT. 701, 703, LOUISIANA WAS ADMITTED TO THE UNION "ON AN EQUAL
FOOTING WITH THE ORIGINAL STATES, IN ALL RESPECTS WHATEVER."  AND AS
RESPECTS THE SOUTHERN BOUNDARY, THAT ACT RECITED THAT LOUISIANA WAS
"BOUNDED BY THE SAID GULF (OF MEXICO)  ...  INCLUDING ALL ISLANDS
WITHIN THREE LEAGUES OF THE COAST."  FN2  IN 1938 LOUISIANA BY STATUTE
DECLARED ITS SOUTHERN BOUNDARY TO BE TWENTY-SEVEN MARINE MILES FROM THE
SHORE LINE.  FN3 

WE THINK UNITED STATES V. CALIFORNIA, 332 U.S. 19, CONTROLS THIS CASE
AND THAT THERE MUST BE A DECREE FOR THE COMPLAINANT. 

WE LAY ASIDE SUCH CASES AS TOOMER V. WITSELL, 334 U.S. 385, 393,
WHERE A STATE'S REGULATION OF COASTAL WATERS BELOW THE LOW-WATER MARK
COLLIDES WITH THE INTERESTS OF A PERSON NOT ACTING ON BEHALF OF OR
UNDER THE AUTHORITY OF THE UNITED STATES.  THE QUESTION HERE IS NOT THE
POWER OF A STATE TO USE THE MARGINAL SEA OR TO REGULATE ITS USE IN
ABSENCE OF A CONFLICTING FEDERAL POLICY; IT IS THE POWER OF A STATE TO
DENY THE PARAMOUNT AUTHORITY WHICH THE UNITED STATES SEEKS TO ASSERT
OVER THE AREA IN QUESTION.  WE ALSO PUT TO ONE SIDE NEW ORLEANS V.
UNITED STATES, 10 PET. 662, HOLDING THAT TITLE TO OR DOMINION OVER
CERTAIN LOTS AND VACANT LAND ALONG THE RIVER IN THE CITY OF NEW ORLEANS
DID NOT PASS TO THE UNITED STATES UNDER THE TREATY OF CESSION BUT
REMAINED IN THE CITY.  SUCH CASES, LIKE THOSE INVOLVING OWNERSHIP OF
THE LAND UNDER THE INLAND WATERS (SEE, FOR EXAMPLE, POLLARD'S LESSEE V.
HAGAN, 3 HOW.  212), ARE IRRELEVANT HERE.  AS WE POINTED OUT IN UNITED
STATES V. CALIFORNIA, THE ISSUE IN THIS CLASS OF LITIGATION DOES NOT
TURN ON TITLE OR OWNERSHIP IN THE CONVENTIONAL SENSE.  CALIFORNIA, LIKE
THE THIRTEEN ORIGINAL COLONIES, NEVER ACQUIRED OWNERSHIP IN THE
MARGINAL SEA.  THE CLAIM TO OUR THREE-MILE BELT WAS FIRST ASSERTED BY
THE NATIONAL GOVERNMENT.  PROTECTION AND CONTROL OF THE AREA ARE INDEED
FUNCTIONS OF NATIONAL EXTERNAL SOVEREIGNTY.  332 U.S. PP. 31-34.  THE
MARGINAL SEA IS A NATIONAL, NOT A STATE CONCERN.  NATIONAL INTERESTS,
NATIONAL RESPONSIBILITIES, NATIONAL CONCERNS ARE INVOLVED.  THE
PROBLEMS OF COMMERCE, NATIONAL DEFENSE, RELATIONS WITH OTHER POWERS,
WAR AND PEACE FOCUS THERE.  NATIONAL RIGHTS MUST THEREFORE BE PARAMOUNT
IN THAT AREA. 

THAT IS THE RATIONALE OF UNITED STATES V. CALIFORNIA.  IT IS FULLY
ELABORATED IN THE OPINION OF THE COURT IN THAT CASE AND DOES NOT NEED
REPETITION. 

WE HAVE CAREFULLY CONSIDERED THE EXTENDED AND ABLE ARGUMENT OF
LOUISIANA IN ALL ITS ASPECTS AND HAVE FOUND NO REASON WHY LOUISIANA
STANDS ON A BETTER FOOTING THAN CALIFORNIA SO FAR AS THE THREE-MILE
BELT IS CONCERNED.  THE NATIONAL INTEREST IN THAT BELT IS AS GREAT OFF
THE SHORE LINE OF LOUISIANA AS IT IS OFF THE SHORE LINE OF CALIFORNIA. 
AND THERE ARE NO MATERIAL DIFFERENCES IN THE PREADMISSION OR
POSTADMISSION HISTORY OF LOUISIANA THAT MAKE HER CASE STRONGER THAN
CALIFORNIA'S.  LOUISIANA PRIOR TO ADMISSION HAD NO STRONGER CLAIM TO
OWNERSHIP OF THE MARGINAL SEA THAN THE ORIGINAL THIRTEEN COLONIES OR
CALIFORNIA HAD.  MOREOVER, THE NATIONAL DOMINION IN THE THREE-MILE BELT
HAS NOT BEEN SACRIFICED OR CEDED AWAY IN EITHER CASE.  THE UNITED
STATES, ACTING THROUGH ITS ATTORNEY GENERAL, WHO HAS AUTHORITY TO
ASSERT CLAIMS OF THIS CHARACTER AND TO INVOKE OUR JURISDICTION IN A
FEDERAL-STATE CONTROVERSY (UNITED STATES V. CALIFORNIA, PP. 26-29), NOW
CLAIMS ITS PARAMOUNT RIGHTS IN THIS DOMAIN. 

THERE IS ONE DIFFERENCE, HOWEVER, BETWEEN LOUISIANA'S CLAIM AND
CALIFORNIA'S.  THE LATTER CLAIMED RIGHTS IN THE THREE-MILE BELT. 
LOUISIANA CLAIMS RIGHTS TWENTY-FOUR MILES SEAWARD OF THE THREE-MILE
BELT.  WE NEED NOTE ONLY BRIEFLY THIS DIFFERENCE.  WE INTIMATE NO
OPINION ON THE POWER OF A STATE TO EXTEND, DEFINE, OR ESTABLISH ITS
EXTERNAL TERRITORIAL LIMITS OR ON THE CONSEQUENCES OF ANY SUCH
EXTENSION VIS A VIS PERSONS OTHER THAN THE UNITED STATES OR THOSE
ACTING ON BEHALF OF OR PURSUANT TO ITS AUTHORITY.  THE MATTER OF STATE
BOUNDARIES HAS NO BEARING ON THE PRESENT PROBLEM.  IF, AS WE HELD IN
CALIFORNIA'S CASE, THE THREE-MILE BELT IS IN THE DOMAIN OF THE NATION
RATHER THAN THAT OF THE SEPARATE STATES, IT FOLLOWS A FORTIORI THAT THE
OCEAN BEYOND THAT LIMIT ALSO IS.  THE OCEAN SEAWARD OF THE MARGINAL
BELT IS PERHAPS EVEN MORE DIRECTLY RELATED TO THE NATIONAL DEFENSE, THE
CONDUCT OF FOREIGN AFFAIRS, AND WORLD COMMERCE THAN IS THE MARGINAL
SEA.  CERTAINLY IT IS NOT LESS SO.  SO FAR AS THE ISSUES PRESENTED HERE
ARE CONCERNED, LOUISIANA'S ENLARGEMENT OF HER BOUNDARY EMPHASIZES THE
STRENGTH OF THE CLAIM OF THE UNITED STATES TO THIS PART OF THE OCEAN
AND THE RESOURCES OF THE SOIL UNDER THAT AREA, INCLUDING OIL. 

LOUISIANA'S MOTION FOR A JURY TRIAL IS DENIED.  WE NEED NOT EXAMINE
IT BEYOND NOTING THAT THIS IS AN EQUITY ACTION FOR AN INJUNCTION AND
ACCOUNTING.  THE SEVENTH AMENDMENT AND THE STATUTE,  FN4 ASSUMING THEY
EXTEND TO CASES UNDER OUR ORIGINAL JURISDICTION, ARE APPLICABLE ONLY TO
ACTIONS AT LAW.  SEE SHIELDS V. THOMAS, 18 HOW.  253, 262; BARTON V.
BARBOUR, 104 U.S. 126, 133-134. 

WE HOLD THAT THE UNITED STATES IS ENTITLED TO THE RELIEF PRAYED FOR. 
THE PARTIES, OR EITHER OF THEM, MAY BEFORE SEPTEMBER 15, 1950, SUBMIT
THE FORM OF DECREE TO CARRY THIS OPINION INTO EFFECT.  SO ORDERED. 

FN1  THE SEVENTH AMENDMENT PROVIDES:  "IN SUITS AT COMMON LAW, WHERE
THE VALUE IN CONTROVERSY SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF
TRIAL BY JURY SHALL BE PRESERVED, AND NO FACT TRIED BY A JURY, SHALL BE
OTHERWISE RE-EXAMINED IN ANY COURT OF THE UNITED STATES, THAN ACCORDING
TO THE RULES OF THE COMMON LAW." 

28 U.S.C. SEC. 1872 PROVIDES:  "IN ALL ORIGINAL ACTIONS AT LAW IN THE
SUPREME COURT AGAINST CITIZENS OF THE UNITED STATES, ISSUES OF FACT
SHALL BE TRIED BY A JURY." 

FN2  AND SEE DART, LOUISIANA CONSTITUTIONS (1932), P. 499. 

FN3  6 DART, LA. GEN. STATS. (1939) SECS. 9311.1-9311.4. 

FN4  SEE NOTE 1, SUPRA. 

MR. JUSTICE JACKSON AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

(FOR OPINION OF MR. JUSTICE FRANKFURTER IN THIS CASE AND IN NO. 13,
ORIGINAL, UNITED STATES V. TEXAS, SEE POST, P. 723.) 
..END :










UNITED STATES V. TEXAS, 339 U.S. 707 


ARGUED MARCH 28, 1950.  - DECIDED JUNE 5, 1950. 


1.  IN THIS SUIT, BROUGHT IN THIS COURT BY THE UNITED STATES AGAINST
THE STATE OF TEXAS UNDER ART. III, SEC. 2, CL. 2 OF THE CONSTITUTION,
HELD:  THE UNITED STATES IS ENTITLED TO A DECREE ADJUDGING AND
DECLARING THE PARAMOUNT RIGHTS OF THE UNITED STATES AS AGAINST TEXAS IN
THE AREA CLAIMED BY TEXAS WHICH LIES UNDER THE GULF OF MEXICO BEYOND
THE LOW-WATER MARK ON THE COAST OF TEXAS AND OUTSIDE THE INLAND WATERS,
ENJOINING TEXAS AND ALL PERSONS CLAIMING UNDER IT FROM CONTINUING TO
TRESPASS UPON THE AREA IN VIOLATION OF THE RIGHTS OF THE UNITED STATES,
AND REQUIRING TEXAS TO ACCOUNT TO THE UNITED STATES FOR ALL MONEY
DERIVED BY IT FROM THE AREA AFTER JUNE 23, 1947.  PP. 709-720. 

2.  EVEN IF TEXAS HAD BOTH DOMINIUM AND IMPERIUM IN AND OVER THIS
MARGINAL BELT WHEN SHE EXISTED AS AN INDEPENDENT REPUBLIC, ANY CLAIM
THAT SHE MAY HAVE HAD TO THE MARGINAL SEA WAS RELINQUISHED TO THE
UNITED STATES WHEN TEXAS CEASED TO BE AN INDEPENDENT NATION AND WAS
ADMITTED TO THE UNION "ON AN EQUAL FOOTING WITH THE EXISTING STATES"
PURSUANT TO THE JOINT RESOLUTION OF MARCH 1, 1845, 5 STAT. 797.  PP.
715-720. 

(A)  THE "EQUAL FOOTING" CLAUSE WAS DESIGNED NOT TO WIPE OUT ECONOMIC
DIVERSITIES AMONG THE SEVERAL STATES BUT TO CREATE PARITY AS RESPECTS
POLITICAL STANDING AND SOVEREIGNTY.  P. 716. 

(B)  THE "EQUAL FOOTING" CLAUSE NEGATIVES ANY IMPLIED, SPECIAL
LIMITATION OF ANY OF THE PARAMOUNT POWERS OF THE UNITED STATES IN FAVOR
OF A STATE.  P. 717. 

(C)  ALTHOUGH DOMINIUM AND IMPERIUM ARE NORMALLY SEPARABLE AND
SEPARATE, THIS IS AN INSTANCE WHERE PROPERTY INTERESTS ARE SO
SUBORDINATED TO THE RIGHTS OF SOVEREIGNTY AS TO FOLLOW SOVEREIGNTY.  P.
719. 

(D)  IF THE PROPERTY, WHATEVER IT MAY BE, LIES SEAWARD OF LOW-WATER
MARK, ITS USE, DISPOSITION, MANAGEMENT, AND CONTROL INVOLVE NATIONAL
INTERESTS AND NATIONAL RESPONSIBILITIES, THEREBY GIVING RISE TO
PARAMOUNT NATIONAL RIGHTS IN IT.  UNITED STATES V. CALIFORNIA, 332 U.S.
19.  P. 719. 

(E)  THE "EQUAL FOOTING" CLAUSE PREVENTS EXTENSION OF THE SOVEREIGNTY
OF A STATE INTO THE DOMAIN OF POLITICAL AND SOVEREIGN POWER OF THE
UNITED STATES FROM WHICH THE OTHER STATES HAVE BEEN EXCLUDED, JUST AS
IT PREVENTS A CONTRACTION OF SOVEREIGNTY WHICH WOULD PRODUCE INEQUALITY
AMONG THE STATES.  PP. 719-720. 

3.  THAT TEXAS IN 1941 SOUGHT TO EXTEND ITS BOUNDARY TO A LINE IN THE
GULF OF MEXICO 24 MARINE MILES BEYOND THE THREE-MILE LIMIT AND ASSERTED
OWNERSHIP OF THE BED WITHIN THAT AREA AND IN 1947 SOUGHT TO EXTEND THE
BOUNDARY TO THE OUTER EDGE OF THE CONTINENTAL SHELF DO NOT REQUIRE A
DIFFERENT RESULT.  UNITED STATES V. LOUISIANA, ANTE, P. 699.  P. 720. 

4.  THE MOTIONS OF TEXAS FOR AN ORDER TO TAKE DEPOSITIONS AND FOR THE
APPOINTMENT OF A SPECIAL MASTER ARE DENIED, BECAUSE THERE IS NO NEED TO
TAKE EVIDENCE IN THIS CASE.  PP. 715, 720. 

5.  IN RULING ON A MOTION BY THE UNITED STATES FOR LEAVE TO FILE THE
COMPLAINT IN THIS CASE, 337 U.S. 902, AND ON A MOTION BY TEXAS TO
DISMISS THE COMPLAINT FOR WANT OF ORIGINAL JURISDICTION, 338 U.S. 806,
THIS COURT, IN EFFECT, HELD THAT IT HAD ORIGINAL JURISDICTION UNDER
ART. III, SEC. 2, CL. 2 OF THE CONSTITUTION, EVEN THOUGH TEXAS HAD NOT
CONSENTED TO BE SUED.  PP. 709-710. 

UNITED STATES V. TEXAS. 

NO. 13, ORIGINAL. 

THE CASE AND THE EARLIER PROCEEDING HEREIN ARE STATED IN THE OPINION
AT PP. 709-712.  THE CONCLUSION THAT THE UNITED STATES IS ENTITLED TO
THE RELIEF PRAYED FOR IS REPORTED AT P. 720. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT, LIKE ITS COMPANION, UNITED STATES V. LOUISIANA, ANTE, P.
699, DECIDED THIS DAY, INVOKES OUR ORIGINAL JURISDICTION UNDER ART.
III, SEC. 2, CL. 2 OF THE CONSTITUTION AND PUTS INTO ISSUE THE
CONFLICTING CLAIMS OF THE PARTIES TO OIL AND OTHER PRODUCTS UNDER THE
BED OF THE OCEAN BELOW LOW-WATER MARK OFF THE SHORES OF TEXAS. 

THE COMPLAINT ALLEGES THAT THE UNITED STATES WAS AND IS 

"THE OWNER IN FEE SIMPLE OF, OR POSSESSED OF PARAMOUNT RIGHTS IN, AND
FULL DOMINION AND POWER OVER, THE LANDS, MINERALS AND OTHER THINGS
UNDERLYING THE GULF OF MEXICO, LYING SEAWARD OF THE ORDINARY LOW-WATER
MARK ON THE COAST OF TEXAS AND OUTSIDE OF THE INLAND WATERS, EXTENDING
SEAWARD TO THE OUTER EDGE OF THE CONTINENTAL SHELF AND BOUNDED ON THE
EAST AND SOUTHWEST, RESPECTIVELY, BY THE EASTERN BOUNDARY OF THE STATE
OF TEXAS AND THE BOUNDARY BETWEEN THE UNITED STATES AND MEXICO." 

THE COMPLAINT IS IN OTHER MATERIAL RESPECTS IDENTICAL WITH THAT FILED
AGAINST LOUISIANA.  THE PRAYER IS FOR A DECREE ADJUDGING AND DECLARING
THE RIGHTS OF THE UNITED STATES AS AGAINST TEXAS IN THE ABOVE-DESCRIBED
AREA, ENJOINING TEXAS AND ALL PERSONS CLAIMING UNDER IT FROM CONTINUING
TO TRESPASS UPON THE AREA IN VIOLATION OF THE RIGHTS OF THE UNITED
STATES, AND REQUIRING TEXAS TO ACCOUNT TO THE UNITED STATES FOR ALL
MONEY DERIVED BY IT FROM THE AREA SUBSEQUENT TO JUNE 23, 1947. 

TEXAS OPPOSED THE MOTION FOR LEAVE TO FILE THE COMPLAINT ON THE
GROUNDS THAT THE ATTORNEY GENERAL WAS NOT AUTHORIZED TO BRING THE SUIT
AND THAT THE SUIT, IF BROUGHT, SHOULD BE INSTITUTED IN A DISTRICT
COURT.  AND TEXAS, LIKE LOUISIANA, MOVED TO DISMISS ON THE GROUND THAT
SINCE TEXAS HAD NOT CONSENTED TO BE SUED, THE COURT HAD NO ORIGINAL
JURISDICTION OF THE SUIT.  AFTER ARGUMENT, WE GRANTED THE MOTION FOR
LEAVE TO FILE THE COMPLAINT.  337 U.S. 902.  TEXAS THEN MOVED TO
DISMISS THE COMPLAINT ON THE GROUND THAT THE SUIT DID NOT COME WITHIN
THE ORIGINAL JURISDICTION OF THE COURT.  SHE ALSO MOVED FOR A MORE
DEFINITE STATEMENT OR FOR A BILL OF PARTICULARS AND FOR AN EXTENSION OF
TIME TO ANSWER.  THE UNITED STATES THEN MOVED FOR JUDGMENT.  THESE
VARIOUS MOTIONS WERE DENIED AND TEXAS WAS GRANTED THIRTY DAYS TO FILE
AN ANSWER.  338 U.S. 806. 

TEXAS IN HER ANSWER, AS LATER AMENDED, RENEWS HER OBJECTION THAT THIS
CASE IS NOT ONE OF WHICH THE COURT HAS ORIGINAL JURISDICTION; DENIES
THAT THE UNITED STATES IS OR EVER HAS BEEN THE OWNER OF THE LANDS,
MINERALS, ETC., UNDERLYING THE GULF OF MEXICO WITHIN THE DISPUTED AREA;
DENIES THAT THE UNITED STATES IS OR EVER HAS BEEN POSSESSED OF
PARAMOUNT RIGHTS IN OR FULL DOMINION OVER THE LANDS, MINERALS, ETC.,
UNDERLYING THE GULF OF MEXICO WITHIN SAID AREA EXCEPT THE PARAMOUNT
POWER TO CONTROL, IMPROVE, AND REGULATE NAVIGATION WHICH UNDER THE
COMMERCE CLAUSE THE UNITED STATES HAS OVER LANDS BENEATH ALL NAVIGABLE
WATERS AND EXCEPT THE SAME DOMINION AND PARAMOUNT POWER WHICH THE
UNITED STATES HAS OVER UPLANDS WITHIN THE UNITED STATES, WHETHER
PRIVATELY OR STATE OWNED; DENIES THAT THESE OR ANY OTHER PARAMOUNT
POWERS OR RIGHTS OF THE UNITED STATES INCLUDE OWNERSHIP OR THE RIGHT TO
TAKE OR DEVELOP OR AUTHORIZE THE TAKING OR DEVELOPING OF OIL OR OTHER
MINERALS IN THE AREA IN DISPUTE WITHOUT COMPENSATION TO TEXAS; DENIES
THAT ANY PARAMOUNT POWERS OR RIGHTS OF THE UNITED STATES INCLUDE THE
RIGHT TO CONTROL OR TO PREVENT THE TAKING OR DEVELOPING OF THESE
MINERALS BY TEXAS OR HER LESSEES EXCEPT WHEN NECESSARY IN THE EXERCISE
OF THE PARAMOUNT FEDERAL POWERS, AS RECOGNIZED BY TEXAS, AND WHEN DULY
AUTHORIZED BY APPROPRIATE ACTION OF THE CONGRESS; ADMITS THAT SHE
CLAIMS RIGHTS, TITLE, AND INTERESTS IN SAID LANDS, MINERALS, ETC., AND
SAYS THAT HER RIGHTS INCLUDE OWNERSHIP AND THE RIGHT TO TAKE, USE,
LEASE, AND DEVELOP THESE PROPERTIES; ADMITS THAT SHE HAS LEASED SOME OF
THE LANDS IN THE AREA AND RECEIVED ROYALTIES FROM THE LESSEES BUT
DENIES THAT THE UNITED STATES IS ENTITLED TO ANY OF THEM; AND DENIES
THAT SHE HAS NO TITLE TO OR INTEREST IN ANY OF THE LANDS IN THE
DISPUTED AREA. 

AS AN AFFIRMATIVE DEFENSE, TEXAS ASSERTS THAT AS AN INDEPENDENT
NATION THE REPUBLIC OF TEXAS HAD OPEN, ADVERSE, AND EXCLUSIVE
POSSESSION AND EXERCISED JURISDICTION AND CONTROL OVER THE LAND,
MINERALS, ETC., UNDERLYING THAT PART OF THE GULF OF MEXICO WITHIN HER
BOUNDARIES ESTABLISHED AT THREE MIRINE LEAGUES FROM SHORE BY HER FIRST
CONGRESS AND ACQUIESCED IN BY THE UNITED STATES AND OTHER MAJOR
NATIONS; THAT WHEN TEXAS WAS ANNEXED TO THE UNITED STATES THE CLAIM AND
RIGHTS OF TEXAS TO THIS LAND, MINERALS, ETC., WERE RECOGNIZED AND
PRESERVED IN TEXAS; THAT TEXAS CONTINUED AS A STATE TO HOLD OPEN,
ADVERSE AND EXCLUSIVE POSSESSION, JURISDICTION AND CONTROL OF THESE
LANDS, MINERALS, ETC., WITHOUT DISPUTE, CHALLENGE OR OBJECTION BY THE
UNITED STATES; THAT THE UNITED STATES HAS RECOGNIZED AND ACQUIESCED IN
THIS CLAIM AND THESE RIGHTS; THAT TEXAS UNDER THE DOCTRINE OF
PRESCRIPTION HAS ESTABLISHED SUCH TITLE, OWNERSHIP AND SOVEREIGN RIGHTS
IN THE AREA AS PRECLUDE THE GRANTING OF THE RELIEF PRAYED. 

AS A SECOND AFFIRMATIVE DEFENSE, TEXAS ALLEGES THAT THERE WAS AN
AGREEMENT BETWEEN THE UNITED STATES AND THE REPUBLIC OF TEXAS THAT UPON
ANNEXATION TEXAS WOULD NOT CEDE TO THE UNITED STATES BUT WOULD RETAIN
ALL OF THE LANDS, MINERALS, ETC., UNDERLYING THAT PART OF THE GULF OF
MEXICO WITHIN THE ORIGINAL BOUNDARIES OF THE REPUBLIC. 

AS A THIRD AFFIRMATIVE DEFENSE, TEXAS ASSERTS THAT THE UNITED STATES
ACKNOWLEDGED AND CONFIRMED THE THREE-LEAGUE BOUNDARY OF TEXAS IN THE
GULF OF MEXICO AS DECLARED, ESTABLISHED, AND MAINTAINED BY THE REPUBLIC
OF TEXAS AND AS RETAINED BY TEXAS UNDER THE ANNEXATION AGREEMENT. 

TEXAS THEN MOVED FOR AN ORDER TO TAKE DEPOSITIONS OF SPECIFIED AGED
PERSONS RESPECTING THE EXISTENCE AND EXTENT OF KNOWLEDGE AND USE OF
SUBSOIL MINERALS WITHIN THE DISPUTED AREA PRIOR TO AND SINCE THE
ANNEXATION OF TEXAS, AND THE USES TO WHICH TEXAS HAS DEVOTED PARTS OF
THE AREA AS BEARING ON HER ALLEGED PRESCRIPTIVE RIGHTS.  TEXAS ALSO
MOVED FOR THE APPOINTMENT OF A SPECIAL MASTER TO TAKE EVIDENCE AND
REPORT TO THE COURT. 

THE UNITED STATES OPPOSED THESE MOTIONS AND IN TURN MOVED FOR
JUDGMENT ASSERTING THAT THE DEFENSES TENDERED BY TEXAS WERE
INSUFFICIENT IN LAW AND THAT NO ISSUE OF FACT HAD BEEN RAISED WHICH
COULD NOT BE RESOLVED BY JUDICIAL NOTICE.  WE SET THE CASE DOWN FOR
ARGUMENT ON THAT MOTION. 

WE ARE TOLD THAT THE CONSIDERATIONS WHICH GIVE THE FEDERAL GOVERNMENT
PARAMOUNT RIGHTS IN, AND FULL DOMINION AND POWER OVER, THE MARGINAL SEA
OFF THE SHORES OF CALIFORNIA AND LOUISIANA (SEE UNITED STATES V.
CALIFORNIA, 332 U.S. 19; UNITED STATES V. LOUISIANA, SUPRA) SHOULD BE
EQUALLY CONTROLLING WHEN WE COME TO THE MARGINAL SEA OFF THE SHORES OF
TEXAS.  IT IS ARGUED THAT THE NATIONAL INTERESTS, NATIONAL
RESPONSIBILITIES, AND NATIONAL CONCERNS WHICH ARE THE BASIS OF THE
PARAMOUNT RIGHTS OF THE NATIONAL GOVERNMENT IN ONE CASE WOULD SEEM TO
BE EQUALLY APPLICABLE IN THE OTHER. 

BUT THERE IS A DIFFERENCE IN THIS CASE WHICH, TEXAS SAYS, REQUIRES A
DIFFERENT RESULT.  THAT DIFFERENCE IS LARGELY IN THE PREADMISSION
HISTORY OF TEXAS. 

THE SUM OF THE ARGUMENT IS THAT PRIOR TO ANNEXATION TEXAS HAD BOTH
DOMINIUM (OWNERSHIP OR PROPRIETARY RIGHTS) AND IMPERIUM (GOVERNMENTAL
POWERS OF REGULATION AND CONTROL) AS RESPECTS THE LANDS, MINERALS AND
OTHER PRODUCTS UNDERLYING THE MARGINAL SEA.  IN THE CASE OF CALIFORNIA
WE FOUND THAT SHE, LIKE THE ORIGINAL THIRTEEN COLONIES, NEVER HAD
DOMINIUM OVER THAT AREA.  THE FIRST CLAIM TO THE MARGINAL SEA WAS
ASSERTED BY THE NATIONAL GOVERNMENT.  WE HELD THAT PROTECTION AND
CONTROL OF IT WERE INDEED A FUNCTION OF NATIONAL EXTERNAL SOVEREIGNTY. 
332 U.S. 31-34.  THE STATUS OF TEXAS, IT IS SAID, IS DIFFERENT:  TEXAS,
WHEN SHE CAME INTO THE UNION, RETAINED THE DOMINIUM OVER THE MARGINAL
SEA WHICH SHE HAD PREVIOUSLY ACQUIRED AND TRANSFERRED TO THE NATIONAL
GOVERNMENT ONLY HER POWERS OF SOVEREIGNTY - HER IMPERIUM - OVER THE
MARGINAL SEA. 

THIS ARGUMENT LEADS INTO SEVERAL CHAPTERS OF TEXAS HISTORY. 

THE REPUBLIC OF TEXAS WAS PROCLAIMED BY A CONVENTION ON MARCH 2,
1836.  FN1  THE UNITED STATES FN2  AND OTHER NATIONS N3 FORMALLY
RECOGNIZED IT.  THE CONGRESS OF TEXAS ON DECEMBER 19, 1836, PASSED AN
ACT DEFINING THE BOUNDARIES OF THE REPUBLIC.  FN4  THE SOUTHERN
BOUNDARY WAS DESCRIBED AS FOLLOWS:  "BEGINNING AT THE MOUTH OF THE
SABINE RIVER, AND RUNNING WEST ALONG THE GULF OF MEXICO THREE LEAGUES
FROM LAND, TO THE MOUTH OF THE RIO GRANDE."  FN5  TEXAS WAS ADMITTED TO
THE UNION IN 1845 "ON AN EQUAL FOOTING WITH THE ORIGINAL STATES IN ALL
RESPECTS WHATEVER."  FN6  TEXAS CLAIMS THAT DURING THE PERIOD FROM 1836
TO 1845 SHE HAD BROUGHT THIS MARGINAL BELT INTO HER TERRITORY AND
SUBJECTED IT TO HER DOMESTIC LAW WHICH RECOGNIZED OWNERSHIP IN MINERALS
UNDER COASTAL WATERS.  THIS THE UNITED STATES CONTESTS.  TEXAS ALSO
CLAIMS THAT UNDER INTERNATIONAL LAW, AS IT HAD EVOLVED BY THE 1840'S,
THE REPUBLIC OF TEXAS AS A SOVEREIGN NATION BECAME THE OWNER OF THE BED
AND SUB-SOIL OF THE MARGINAL SEA VIS-A-VIS OTHER NATIONS.  TEXAS CLAIMS
THAT THE REPUBLIC OF TEXAS ACQUIRED DURING THAT PERIOD THE SAME
INTEREST IN ITS MARGINAL SEA AS THE UNITED STATES ACQUIRED IN THE
MARGINAL SEA OFF CALIFORNIA WHEN IT PURCHASED FROM MEXICO IN 1848 THE
TERRITORY FROM WHICH CALIFORNIA WAS LATER FORMED.  THIS THE UNITED
STATES CONTESTS. 

THE JOINT RESOLUTION ANNEXING TEXAS  FN7  PROVIDED IN PART: 

"SAID STATE, WHEN ADMITTED INTO THE UNION, AFTER CEDING TO THE UNITED
STATES, ALL PUBLIC EDIFICES, FORTIFICATIONS, BARRACKS, PORTS AND
HARBORS, NAVY AND NAVYYARDS, DOCKS, MAGAZINES, ARMS, ARMAMENTS, AND ALL
OTHER PROPERTY AND MEANS PERTAINING TO THE PUBLIC DEFENCE BELONGING TO
SAID REPUBLIC OF TEXAS, SHALL RETAIN ALL THE PUBLIC FUNDS, DEBTS,
TAXES, AND DUES OF EVERY KIND, WHICH MAY BELONG TO OR BE DUE AND OWING
SAID REPUBLIC; AND SHALL ALSO RETAIN ALL THE VACANT AND UNAPPROPRIATED
LANDS LYING WITHIN ITS LIMITS, TO BE APPLIED TO THE PAYMENT OF THE
DEBTS AND LIABILITIES OF SAID REPUBLIC OF TEXAS, AND THE RESIDUE OF
SAID LANDS, AFTER DISCHARGING SAID DEBTS AND LIABILITIES, TO BE
DISPOSED OF AS SAID STATE MAY DIRECT; BUT IN NO EVENT ARE SAID DEBTS
AND LIABILITIES TO BECOME A CHARGE UPON THE GOVERNMENT OF THE UNITED
STATES." 

THE UNITED STATES CONTENDS THAT THE INCLUSION OF FORTIFICATIONS,
BARRACKS, PORTS AND HARBORS, NAVY AND NAVYYARDS, AND DOCKS IN THE
CESSION CLAUSE OF THE RESOLUTION DEMONSTRATES AN INTENT TO CONVEY ALL
INTERESTS OF THE REPUBLIC IN THE MARGINAL SEA, SINCE MOST OF THESE
PROPERTIES LIE SIDE BY SIDE WITH, AND SHADE INTO, THE MARGINAL SEA.  IT
STRESSES THE PHRASE IN THE RESOLUTION "OTHER PROPERTY AND MEANS
PERTAINING TO THE PUBLIC DEFENCE."  IT ARGUES THAT POSSESSION BY THE
UNITED STATES IN THE LANDS UNDERLYING THE MARGINAL SEA IS A DEFENSE
NECESSITY.  TEXAS MAINTAINS THAT THE CONSTRUCTION OF THE RESOLUTION
BOTH BY THE UNITED STATES AND TEXAS HAS BEEN RESTRICTED TO PROPERTIES
WHICH THE REPUBLIC ACTUALLY USED AT THE TIME IN THE PUBLIC DEFENSE. 

THE UNITED STATES CONTENDS THAT THE "VACANT AND UNAPPROPRIATED LANDS"
WHICH BY THE RESOLUTION WERE RETAINED BY TEXAS DO NOT INCLUDE THE
MARGINAL BELT.  IT ARGUES THAT THE PURPOSE OF THE CLAUSE, THE
CIRCUMSTANCES OF ITS INCLUSION, AND THE MEANING OF THE WORDS IN TEXAS
AND FEDERAL USAGE GIVE THEM A MORE RESTRICTED MEANING.  TEXAS REPLIES
THAT SINCE THE UNITED STATES REFUSED TO ASSUME THE LIABILITIES OF THE
REPUBLIC, IT WAS TO HAVE NO CLAIM TO THE ASSETS OF THE REPUBLIC EXCEPT
THE DEFENSE PROPERTIES EXPRESSLY CEDED. 

IN THE CALIFORNIA CASE, NEITHER PARTY SUGGESTED THE NECESSITY FOR THE
INTRODUCTION OF EVIDENCE.  332 U.S. 24.  BUT TEXAS MAKES AN EARNEST
PLEA TO BE HEARD ON THE FACTS AS THEY BEAR ON THE CIRCUMSTANCES OF HER
HISTORY WHICH, SHE SAYS, SETS HER APART FROM THE OTHER STATES ON THIS
ISSUE. 

THE COURT IN ORIGINAL ACTIONS, PASSING AS IT DOES ON CONTROVERSIES
BETWEEN SOVEREIGNS WHICH INVOLVE ISSUES OF HIGH PUBLIC IMPORTANCE, HAS
ALWAYS BEEN LIBERAL IN ALLOWING FULL DEVELOPMENT OF THE FACTS.  UNITED
STATES V. TEXAS, 162 U.S. 1; KANSAS V. COLORADO, 185 U.S. 125, 144,
145, 147; OKLAHOMA V. TEXAS, 253 U.S. 465, 471.  IF THERE WERE A
DISPUTE AS TO THE MEANING OF DOCUMENTS AND THE ANSWER WAS TO BE FOUND
IN DIPLOMATIC CORRESPONDENCE, CONTEMPORARY CONSTRUCTION, USAGE,
INTERNATIONAL LAW AND THE LIKE, INTRODUCTION OF EVIDENCE AND A FULL
HEARING WOULD BE ESSENTIAL. 

WE CONCLUDE, HOWEVER, THAT NO SUCH HEARING IS REQUIRED IN THIS CASE. 
WE ARE OF THE VIEW THAT THE "EQUAL FOOTING" CLAUSE OF THE JOINT
RESOLUTION ADMITTING TEXAS TO THE UNION DISPOSES OF THE PRESENT PHASE
OF THE CONTROVERSY. 

THE "EQUAL FOOTING" CLAUSE HAS LONG BEEN HELD TO REFER TO POLITICAL
RIGHTS AND TO SOVEREIGNTY.  SEE STEARNS V. MINNESOTA, 179 U.S. 223,
245.  IT DOES NOT, OF COURSE, INCLUDE ECONOMIC STATURE OR STANDING. 
THERE HAS NEVER BEEN EQUALITY AMONG THE STATES IN THAT SENSE.  SOME
STATES WHEN THEY ENTERED THE UNION HAD WITHIN THEIR BOUNDARIES TRACTS
OF LAND BELONGING TO THE FEDERAL GOVERNMENT; OTHERS WERE SOVEREIGNS OF
THEIR SOIL.  SOME HAD SPECIAL AGREEMENTS WITH THE FEDERAL GOVERNMENT
GOVERNING PROPERTY WITHIN THEIR BORDERS.  SEE STEARNS V. MINNESOTA,
SUPRA, PP. 243-245.  AREA, LOCATION, GEOLOGY, AND LATITUDE HAVE CREATED
GREAT DIVERSITY IN THE ECONOMIC ASPECTS OF THE SEVERAL STATES.  THE
REQUIREMENT OF EQUAL FOOTING WAS DESIGNED NOT TO WIPE OUT THOSE
DIVERSITIES BUT TO CREATE PARITY AS RESPECTS POLITICAL STANDING AND
SOVEREIGNTY.    YET THE "EQUAL FOOTING" CLAUSE HAS LONG BEEN HELD TO
HAVE A DIRECT EFFECT ON CERTAIN PROPERTY RIGHTS.  THUS THE QUESTION
EARLY AROSE IN CONTROVERSIES BETWEEN THE FEDERAL GOVERNMENT AND THE
STATES AS TO THE OWNERSHIP OF THE SHORES OF NAVIGABLE WATERS AND THE
SOILS UNDER THEM.  IT WAS CONSISTENTLY HELD THAT TO DENY TO THE STATES,
ADMITTED SUBSEQUENT TO THE FORMATION OF THE UNION, OWNERSHIP OF THIS
PROPERTY WOULD DENY THEM ADMISSION ON AN EQUAL FOOTING WITH THE
ORIGINAL STATES, SINCE THE ORIGINAL STATES DID NOT GRANT THESE
PROPERTIES TO THE UNITED STATES BUT RESERVED THEM TO THEMSELVES.  SEE
POLLARD'S LESSEE V. HAGAN, 3 HOW.  212, 228-229; MUMFORD V. WARDWELL, 6
WALL.  423, 436; WEBER V. HARBOR COMM'RS, 18 WALL.  57, 65-66; KNIGHT
V. U.S. LAND ASSN., 142 U.S. 161, 183; SHIVELY V. BOWLBY, 152 U.S. 1,
26; UNITED STATES V. MISSION ROCK CO., 189 U.S. 391, 404.  THE THEORY
OF THESE DECISIONS WAS APTLY SUMMARIZED BY MR. JUSTICE STONE SPEAKING
FOR THE COURT IN UNITED STATES V. OREGON, 295 U.S. 1, 14 AS FOLLOWS:
FN8 

"DOMINION OVER NAVIGABLE WATERS AND PROPERTY IN THE SOIL UNDER THEM
ARE SO IDENTIFIED WITH THE SOVEREIGN POWER OF GOVERNMENT THAT A
PRESUMPTION AGAINST THEIR SEPARATION FROM SOVEREIGNTY MUST BE INDULGED,
IN CONSTRUING EITHER GRANTS BY THE SOVEREIGN OF THE LANDS TO BE HELD IN
PRIVATE OWNERSHIP OR TRANSFER OF SOVEREIGNTY ITSELF.  SEE MASSACHUSETTS
V. NEW YORK, 271 U.S. 65, 89.  FOR THAT REASON, UPON THE ADMISSION OF A
STATE TO THE UNION, THE TITLE OF THE UNITED STATES TO LANDS UNDERLYING
NAVIGABLE WATERS WITHIN THE STATES PASSES TO IT, AS INCIDENT TO THE
TRANSFER TO THE STATE OF LOCAL SOVEREIGNTY, AND IS SUBJECT ONLY TO THE
PARAMOUNT POWER OF THE UNITED STATES TO CONTROL SUCH WATERS FOR
PURPOSES OF NAVIGATION IN INTERSTATE AND FOREIGN COMMERCE." 

N8 THE SAME IDEA WAS EXPRESSED SOMEWHAT DIFFERENTLY BY MR. JUSTICE
FIELD IN WEBER V. HARBOR COMM'RS, SUPRA, PP. 65-66 AS FOLLOWS:
"ALTHOUGH THE TITLE TO THE SOIL UNDER THE TIDEWATERS OF THE BAY WAS
ACQUIRED BY THE UNITED STATES BY CESSION FROM MEXICO, EQUALLY WITH THE
TITLE TO THE UPLAND, THEY HELD IT ONLY IN TRUST FOR THE FUTURE STATE. 
UPON THE ADMISSION OF CALIFORNIA INTO THE UNION UPON EQUAL FOOTING WITH
THE ORIGINAL STATES, ABSOLUTE PROPERTY IN, AND DOMINION AND SOVEREIGNTY
OVER, ALL SOILS UNDER THE TIDEWATERS WITHIN HER LIMITS PASSED TO THE
STATE, WITH THE CONSEQUENT RIGHT TO DISPOSE OF THE TITLE TO ANY PART OF
SAID SOILS IN SUCH MANNER AS SHE MIGHT DEEM PROPER, SUBJECT ONLY TO THE
PARAMOUNT RIGHT OF NAVIGATION OVER THE WATERS, SO FAR AS SUCH
NAVIGATION MIGHT BE REQUIRED BY THE NECESSITIES OF COMMERCE WITH
FOREIGN NATIONS OR AMONG THE SEVERAL STATES, THE REGULATION OF WHICH
WAS VESTED IN THE GENERAL GOVERNMENT." 

THE "EQUAL FOOTING" CLAUSE, WE HOLD, WORKS THE SAME WAY IN THE
CONVERSE SITUATION PRESENTED BY THIS CASE.  IT NEGATIVES ANY IMPLIED,
SPECIAL LIMITATION OF ANY OF THE PARAMOUNT POWERS OF THE UNITED STATES
IN FAVOR OF A STATE.  TEXAS PRIOR TO HER ADMISSION WAS A REPUBLIC.  WE
ASSUME THAT AS A REPUBLIC SHE HAD NOT ONLY FULL SOVEREIGNTY OVER THE
MARGINAL SEA BUT OWNERSHIP OF IT, OF THE LAND UNDERLYING IT, AND OF ALL
THE RICHES WHICH IT HELD.  IN OTHER WORDS, WE ASSUME THAT IT THEN HAD
THE DOMINIUM AND IMPERIUM IN AND OVER THIS BELT WHICH THE UNITED STATES
NOW CLAIMS.  WHEN TEXAS CAME INTO THE UNION, SHE CEASED TO BE AN
INDEPENDENT NATION.  SHE THEN BECAME A SISTER STATE ON AN "EQUAL
FOOTING" WITH ALL THE OTHER STATES.  THAT ACT CONCEDEDLY ENTAILED A
RELINQUISHMENT OF SOME OF HER SOVEREIGNTY.  THE UNITED STATES THEN TOOK
HER PLACE AS RESPECTS FOREIGN COMMERCE, THE WAGING OF WAR, THE MAKING
OF TREATIES, DEFENSE OF THE SHORES, AND THE LIKE.  IN EXTERNAL AFFAIRS
THE UNITED STATES BECAME THE SOLE AND EXCLUSIVE SPOKESMAN FOR THE
NATION.  WE HOLD THAT AS AN INCIDENT TO THE TRANSFER OF THAT
SOVEREIGNTY ANY CLAIM THAT TEXAS MAY HAVE HAD TO THE MARGINAL SEA WAS
RELINQUISHED TO THE UNITED STATES. 

WE STATED THE REASONS FOR THIS IN UNITED STATES V. CALIFORNIA, SUPRA,
P. 35, AS FOLLOWS: 

"THE THREE-MILE RULE IS BUT A RECOGNITION OF THE NECESSITY THAT A
GOVERNMENT NEXT TO THE SEA MUST BE ABLE TO PROTECT ITSELF FROM DANGERS
INCIDENT TO ITS LOCATION.  IT MUST HAVE POWERS OF DOMINION AND
REGULATION IN THE INTEREST OF ITS REVENUES, ITS HEALTH, AND THE
SECURITY OF ITS PEOPLE FROM WARS WAGED ON OR TOO NEAR ITS COASTS.  AND
INSOFAR AS THE NATION ASSERTS ITS RIGHTS UNDER INTERNATIONAL LAW,
WHATEVER OF VALUE MAY BE DISCOVERED IN THE SEAS NEXT TO ITS SHORES AND
WITHIN ITS PROTECTIVE BELT, WILL MOST NATURALLY BE APPROPRIATED FOR ITS
USE.  BUT WHATEVER ANY NATION DOES IN THE OPEN SEA, WHICH DETRACTS FROM
ITS COMMON USEFULNESS TO NATIONS, OR WHICH ANOTHER NATION MAY CHARGE
DETRACTS FROM IT, IS A QUESTION FOR CONSIDERATION AMONG NATIONS AS
SUCH, AND NOT THEIR SEPARATE GOVERNMENTAL UNITS.  WHAT THIS GOVERNMENT
DOES, OR EVEN WHAT THE STATES DO, ANYWHERE IN THE OCEAN, IS A SUBJECT
UPON WHICH THE NATION MAY ENTER INTO AND ASSUME TREATY OR SIMILAR
INTERNATIONAL OBLIGATIONS.  SEE UNITED STATES V. BELMONT, 301 U.S. 324,
331-332.  THE VERY OIL ABOUT WHICH THE STATE AND NATION HERE CONTEND
MIGHT WELL BECOME THE SUBJECT OF INTERNATIONAL DISPUTE AND
SETTLEMENT." 

AND SO ALTHOUGH DOMINIUM AND IMPERIUM ARE NORMALLY SEPARABLE AND
SEPARATE,  FN9  THIS IS AN INSTANCE WHERE PROPERTY INTERESTS ARE SO
SUBORDINATED TO THE RIGHTS OF SOVEREIGNTY AS TO FOLLOW SOVEREIGNTY. 

IT IS SAID THAT THERE IS NO NECESSITY FOR IT - THAT THE SOVEREIGNTY
OF THE SEA CAN BE COMPLETE AND UNIMPAIRED NO MATTER IF TEXAS OWNS THE
OIL UNDERLYING IT.  YET, AS POINTED OUT IN UNITED STATES V. CALIFORNIA,
ONCE LOW-WATER MARK IS PASSED THE INTERNATIONAL DOMAIN IS REACHED. 
PROPERTY RIGHTS MUST THEN BE SO SUBORDINATED TO POLITICAL RIGHTS AS IN
SUBSTANCE TO COALESCE AND UNITE IN THE NATIONAL SOVEREIGN.  TODAY THE
CONTROVERSY IS OVER OIL.  TOMORROW IT MAY BE OVER SOME OTHER SUBSTANCE
OR MINERAL OR PERHAPS THE BED OF THE OCEAN ITSELF.  IF THE PROPERTY,
WHATEVER IT MAY BE, LIES SEAWARD OF LOW-WATER MARK, ITS USE,
DISPOSITION, MANAGEMENT, AND CONTROL INVOLVE NATIONAL INTERESTS AND
NATIONAL RESPONSIBILITIES.  THAT IS THE SOURCE OF NATIONAL RIGHTS IN
IT.  SUCH IS THE RATIONALE OF THE CALIFORNIA DECISION, WHICH WE HAVE
APPLIED TO LOUISIANA'S CASE.  THE SAME RESULT MUST BE REACHED HERE IF
"EQUAL FOOTING" WITH THE VARIOUS STATES IS TO BE ACHIEVED.  UNLESS ANY
CLAIM OR TITLE WHICH THE REPUBLIC OF TEXAS HAD TO THE MARGINAL SEA IS
SUBORDINATED TO THIS FULL PARAMOUNT POWER OF THE UNITED STATES ON
ADMISSION, THERE IS OR MAY BE IN PRACTICAL EFFECT A SUBTRACTION IN
FAVOR OF TEXAS FROM THE NATIONAL SOVEREIGNTY OF THE UNITED STATES.  YET
NEITHER THE ORIGINAL THIRTEEN STATES (UNITED STATES V. CALIFORNIA,
SUPRA, PP. 31-32) NOR CALIFORNIA NOR LOUISIANA ENJOYS SUCH AN
ADVANTAGE.  THE "EQUAL FOOTING" CLAUSE PREVENTS EXTENSION OF THE
SOVEREIGNTY OF A STATE INTO A DOMAIN OF POLITICAL AND SOVEREIGN POWER
OF THE UNITED STATES FROM WHICH THE OTHER STATES HAVE BEEN EXCLUDED,
JUST AS IT PREVENTS A CONTRACTION OF SOVEREIGNTY (POLLARD'S LESSEE V.
HAGAN, SUPRA) WHICH WOULD PRODUCE INEQUALITY AMONG THE STATES.  FOR
EQUALITY OF STATES MEANS THAT THEY ARE NOT "LESS OR GREATER, OR
DIFFERENT IN DIGNITY OR POWER."  SEE COYLE V. SMITH, 221 U.S. 559,
566.  THERE IS NO NEED TO TAKE EVIDENCE TO ESTABLISH THAT MEANING OF
"EQUAL FOOTING." 

TEXAS IN 1941 SOUGHT TO EXTEND ITS BOUNDARY TO A LINE IN THE GULF OF
MEXICO TWENTY-FOUR MARINE MILES BEYOND THE THREE-MILE LIMIT AND
ASSERTED OWNERSHIP OF THE BED WITHIN THAT AREA.  FN10  AND IN 1947 SHE
PUT THE EXTENDED BOUNDARY TO THE OUTER EDGE OF THE CONTINENTAL SHELF. 
FN11  THE IRRELEVANCY OF THESE ACTS TO THE ISSUE BEFORE US HAS BEEN
ADEQUATELY DEMONSTRATED IN UNITED STATES V. LOUISIANA.  THE OTHER
CONTENTIONS OF TEXAS NEED NOT BE DETAILED.  THEY HAVE BEEN FORECLOSED
BY UNITED STATES V. CALIFORNIA AND UNITED STATES V. LOUISIANA. 

THE MOTIONS OF TEXAS FOR AN ORDER TO TAKE DEPOSITIONS AND FOR THE
APPOINTMENT OF A SPECIAL MASTER ARE DENIED.  THE MOTION OF THE UNITED
STATES FOR JUDGMENT IS GRANTED.  THE PARTIES, OR EITHER OF THEM, MAY
BEFORE SEPTEMBER 15, 1950, SUBMIT THE FORM OF DECREE TO CARRY THIS
OPINION INTO EFFECT.  SO ORDERED. 

FN1  1 LAWS, REP. OF TEXAS, P. 6. 

FN2  SEE THE RESOLUTION PASSED BY THE SENATE MARCH 1, 1837(CONG. 
GLOBE, 24TH CONG., 2D SESS., P. 270), THE APPROPRIATION OF A SALARY FOR
A DIPLOMATIC AGENT TO TEXAS (5 STAT. 170), AND THE CONFIRMATION OF A
CHARGE D'AFFAIRES TO THE REPUBLIC IN 1837.  5 EXEC. JOURN.  17. 

FN3  SEE 2 GAMMEL'S LAWS OF TEXAS 655, 880, 886, 889, 905 FOR
RECOGNITION BY FRANCE, GREAT BRITAIN, AND THE NETHERLANDS. 

FN4  1 LAWS, REP. OF TEXAS, P. 133. 

FN5  THE TRADITIONAL THREE-MILE MARITIME BELT IS ONE MARINE LEAGUE OR
THREE MARINE MILES IN WIDTH.  ONE MARINE LEAGUE IS 3.45 ENGLISH STATUTE
MILES. 

FN6  SEE JOINT RESOLUTION APPROVED DECEMBER 29, 1845, 9 STAT. 108. 

FN7  JOINT RESOLUTION APPROVED MARCH 1, 1845, 5 STAT. 797. 

FN9  SEE THE STATEMENT OF MR. JUSTICE FIELD (THEN CHIEF JUSTICE OF
THE SUPREME COURT OF CALIFORNIA) IN MOORE V. SMAW, 17 CAL. 199, 218
219. 

FN10  ACT OF MAY 16, 1941, L. TEXAS, 47TH LEG., P. 454. 

FN11  ACT OF MAY 23, 1947, L. TEXAS, 50TH LEG., P. 451. 

MR. JUSTICE JACKSON AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE MINTON JOINS, DISSENTING. 

THIS CASE BRINGS BEFORE US THE APPLICATION OF UNITED STATES V.
CALIFORNIA, 332 U.S. 19, TO TEXAS.  INSOFAR AS LOUISIANA IS CONCERNED,
I SEE NO DIFFERENCE BETWEEN ITS SITUATION AND THAT PASSED UPON IN THE
CALIFORNIA CASE.  TEXAS, HOWEVER, PRESENTS A VARIATION WHICH REQUIRES A
DIFFERENT RESULT. 

THE CALIFORNIA CASE DETERMINES, P. 36, THAT SINCE "PARAMOUNT RIGHTS
RUN TO THE STATES IN INLAND WATERS TO THE SHOREWARD OF THE LOW WATER
MARK, THE SAME RATIONALE LEADS TO THE CONCLUSION THAT NATIONAL
INTERESTS, RESPONSIBILITIES, AND THEREFORE NATIONAL RIGHTS ARE
PARAMOUNT IN WATERS LYING TO THE SEAWARD IN THE THREE-MILE BELT."  THUS
THE COURT HELD, P. 39, THAT THE FEDERAL GOVERNMENT HAS POWER OVER THAT
BELT, AN INCIDENT OF WHICH IS "FULL DOMINION OVER THE RESOURCES OF THE
SOIL UNDER THAT WATER AREA, INCLUDING OIL."  BUT THAT DECISION WAS
BASED ON THE PREMISE, PP. 32-34, THAT THE THREE-MILE BELT HAD NEVER
BELONGED TO CALIFORNIA.  THE CALIFORNIA CASE POINTS OUT THAT IT WAS THE
UNITED STATES WHICH HAD ACQUIRED THIS SEACOAST AREA FOR THE NATION. 
SOVEREIGNTY OVER THAT AREA PASSED FROM MEXICO TO THIS COUNTRY.  THE
COURT COMMENTED THAT SIMILAR BELTS ALONG THEIR SHORES WERE NOT OWNED BY
THE ORIGINAL SEACOAST STATES.  SINCE SOMETHING AKIN TO OWNERSHIP OF THE
SIMILAR AREA ALONG THE COASTS OF THE ORIGINAL STATES WAS THOUGHT BY THE
COURT TO HAVE BEEN OBTAINED THROUGH AN ASSERTION OF FULL DOMINION BY
THE UNITED STATES TO THIS HITHERTO UNCLAIMED PORTION OF THE EARTH'S
SURFACE, IT WAS DECIDED THAT A SIMILAR RIGHT IN THE CALIFORNIA AREA WAS
OBTAINED BY THE UNITED STATES.  THE CONTRARY IS TRUE IN THE CASE OF
TEXAS.  THE COURT CONCEDES THAT, PRIOR TO THE RESOLUTION OF ANNEXATION,
THE UNITED STATES RECOGNIZED TEXAS OWNERSHIP OF THE THREE-LEAGUE AREA
CLAIMED BY TEXAS.  FN1 

THE COURT HOLDS IMMATERIAL THE FACT OF TEXAS' ORIGINAL OWNERSHIP OF
THIS MARGINAL SEA AREA, BECAUSE TEXAS WAS ADMITTED ON AN "EQUAL
FOOTING" WITH THE OTHER STATES BY THE RESOLUTION OF ANNEXATION.  5
STAT. 797.  THE SCOPE OF THE "EQUAL FOOTING" DOCTRINE, HOWEVER, HAS
BEEN THOUGHT TO EMBRACE ONLY POLITICAL RIGHTS OR THOSE RIGHTS
CONSIDERED NECESSARY ATTRIBUTES OF STATE SOVEREIGNTY.  THUS THIS COURT
HAS HELD IN A CONSISTENT LINE OF DECISIONS THAT, SINCE THE ORIGINAL
STATES, AS AN INCIDENT OF SOVEREIGNTY, HAD OWNERSHIP AND DOMINION OVER
LANDS UNDER NAVIGABLE WATERS WITHIN THEIR JURISDICTION, STATES
SUBSEQUENTLY ADMITTED MUST BE ACCORDED EQUIVALENT OWNERSHIP.  E.G.,
POLLARD'S LESSEE V. HAGAN, 3 HOW.  212; MARTIN V. WADDELL, 16 PET.
367.  BUT IT WAS AN ARTICULATED PREMISE OF THE CALIFORNIA DECISION THAT
THE THIRTEEN ORIGINAL STATES NEITHER HAD ASSERTED OWNERSHIP NOR HAD
HELD DOMINION OVER THE THREE-MILE ZONE AS AN INCIDENT OF SOVEREIGNTY. 

"EQUAL FOOTING" HAS HERETOFORE BROUGHT TO A STATE THE OWNERSHIP OF
RIVER BEDS, BUT NEVER BEFORE HAS THAT PHRASE BEEN INTERPRETED TO TAKE
AWAY FROM A NEWLY ADMITTED STATE PROPERTY THAT IT HAD THERETOFORE
OWNED.  I SEE NO CONSTITUTIONAL REQUIREMENT THAT THIS SHOULD BE DONE
AND I THINK THE RESOLUTION OF ANNEXATION LEFT THE MARGINAL SEA AREA IN
TEXAS.  THE RESOLUTION EXPRESSLY CONSENTED THAT TEXAS SHOULD RETAIN ALL
"THE VACANT AND UNAPPROPRIATED LANDS LYING WITHIN ITS LIMITS."  AN
AGREEMENT OF THIS KIND IS IN ACCORD WITH THE HOLDING OF THIS COURT THAT
ORDINARILY LANDS MAY BE THE SUBJECT OF COMPACT BETWEEN A STATE AND THE
NATION.  STEARNS V. MINNESOTA, 179 U.S. 223, 245.  THE COURT, HOWEVER,
DOES NOT DECIDE WHETHER OR NOT "THE VACANT AND UNAPPROPRIATED LANDS
LYING WITHIN ITS LIMITS" (AT THE TIME OF ANNEXATION) INCLUDES THE LAND
UNDER THE MARGINAL SEA.  I THINK THAT IT DOES INCLUDE THOSE LANDS.  CF.
HYNES V. GRIMES PACKING CO., 337 U.S. 86, 110.  AT LEAST WE SHOULD
PERMIT EVIDENCE OF ITS MEANING. 

INSTEAD OF DECIDING THIS QUESTION OF CESSION, THE COURT RELIES UPON
THE NEED FOR THE UNITED STATES TO CONTROL THE AREA SEAWARD OF LOW WATER
BECAUSE OF ITS INTERNATIONAL RESPONSIBILITIES.  IT REASONS THAT FULL
DOMINION OVER THE RESOURCES FOLLOWS THIS PARAMOUNT RESPONSIBILITY, AND
IT REFERS TO THE CALIFORNIA DISCUSSION OF THE POINT.  332 U.S. AT 35. 
BUT THE ARGUMENT BASED ON INTERNATIONAL RESPONSIBILITIES PREVAILED IN
THE CALIFORNIA CASE BECAUSE THE MARGINAL SEA AREA WAS STAKED OUT BY THE
UNITED STATES.  THE ARGUMENT CANNOT REASONABLY BE EXTENDED TO TEXAS
WITHOUT A HOLDING THAT TEXAS CEDED THAT AREA TO THE UNITED STATES. 
THE NECESSITY FOR THE UNITED STATES TO DEFEND THE LAND AND TO HANDLE
INTERNATIONAL AFFAIRS IS NOT ENOUGH TO TRANSFER PROPERTY RIGHTS IN THE
MARGINAL SEA FROM TEXAS TO THE UNITED STATES.  FEDERAL SOVEREIGNTY IS
PARAMOUNT WITHIN NATIONAL BOUNDARIES, BUT FEDERAL OWNERSHIP DEPENDS ON
TAKING POSSESSION, AS THE CALIFORNIA CASE HOLDS; ON CONSENT, AS IN THE
CASE OF PLACES FOR FEDERAL USE; OR ON PURCHASE, AS IN THE CASE OF
ALASKA OR THE TERRITORY OF LOUISIANA.  THE NEEDS OF DEFENSE AND FOREIGN
AFFAIRS ALONE CANNOT TRANSFER OWNERSHIP OF AN OCEAN BED FROM A STATE TO
THE FEDERAL GOVERNMENT ANY MORE THAN THEY COULD TRANSFER IRON ORE UNDER
UPLANDS FROM STATE TO FEDERAL OWNERSHIP.  NATIONAL RESPONSIBILITY IS NO
GREATER IN RESPECT TO THE MARGINAL SEA THAN IT IS TOWARD EVERY OTHER
PARTICLE OF AMERICAN TERRITORY.  IN MY VIEW, TEXAS OWNED THE MARGINAL
AREA BY VIRTUE OF ITS ORIGINAL PROPRIETORSHIP; IT HAS NOT BEEN SHOWN TO
MY SATISFACTION THAT IT LOST IT BY THE TERMS OF THE RESOLUTION OF
ANNEXATION. 

I WOULD DENY THE UNITED STATES MOTION FOR JUDGMENT. 

FN1  SEE THE STATEMENT IN THE COURT'S OPINION AS TO THE CHAPTERS OF
TEXAS HISTORY. 

MR. JUSTICE FRANKFURTER* . 

*(REPORTER'S NOTE:  THIS IS ALSO THE OPINION OF MR. JUSTICE
FRANKFURTER IN NO. 12, ORIGINAL, UNITED STATES V. LOUISIANA, ANTE, P.
699.) 

TIME HAS NOT MADE THE REASONING OF UNITED STATES V. CALIFORNIA, 332
U.S. 19, MORE PERSUASIVE BUT THE ISSUE THERE DECIDED IS NO LONGER OPEN
FOR ME.  IT IS RELEVANT, HOWEVER, TO NOTE THAT IN REJECTING
CALIFORNIA'S CLAIM OF OWNERSHIP IN THE OFF-SHORE OIL THE COURT
CAREFULLY ABSTAINED FROM RECOGNIZING SUCH CLAIM OF OWNERSHIP BY THE
UNITED STATES.  THIS WAS EMPHASIZED WHEN THE COURT STRUCK OUT THE
PROPRIETARY CLAIM OF THE UNITED STATES FROM THE TERMS OF THE DECREE
PROPOSED BY THE UNITED STATES IN THE CALIFORNIA CASE* . 

*THE DECREE PROPOSED BY THE UNITED STATES READ IN PART: 

"1.  THE UNITED STATES OF AMERICA IS NOW, AND HAS BEEN AT ALL TIMES
PERTINENT HERETO, POSSESSED OF PARAMOUNT RIGHTS OF PROPRIETORSHIP IN,
AND FULL DOMINION AND POWER OVER, THE LANDS, MINERALS AND OTHER THINGS
UNDERLYING THE PACIFIC OCEAN  ...  " 

THE ITALICIZED WORDS WERE OMITTED IN THE COURT'S DECREE.  332 U.S.
804, 805. 

I MUST LEAVE IT TO THOSE WHO DEEM THE REASONING OF THAT DECISION
RIGHT TO DEFINE ITS SCOPE AND APPLY IT, PARTICULARLY TO THE
HISTORICALLY VERY DIFFERENT SITUATION OF TEXAS.  AS IS MADE CLEAR IN
THE OPINION OF MR. JUSTICE REED, THE SUBMERGED LANDS NOW IN CONTROVERSY
WERE PART OF THE DOMAIN OF TEXAS WHEN SHE WAS ON HER OWN.  THE COURT
NOW DECIDES THAT WHEN TEXAS ENTERED THE UNION SHE LOST WHAT SHE HAD AND
THE UNITED STATES ACQUIRED IT.  HOW THAT SHIFT CAME TO PASS REMAINS FOR
ME A PUZZLE. 
..END :








U.S. V. GERLACH LIVE STOCK CO., 339 U.S. 725 


ARGUED MARCH 1, 1949.  - REARGUED MARCH 29-30, 1950.  - DECIDED JUNE 5,
1950.  - 111 CT. CL. 1, 89, 76 F.SUPP.  87, 99, AFFIRMED. 


RESPONDENTS ARE OWNERS OF SO-CALLED "UNCONTROLLED GRASS LANDS" ALONG
THE SAN JOAQUIN RIVER IN CALIFORNIA WHICH DEPEND FOR WATER UPON
SEASONAL INUNDATIONS RESULTING FROM OVERFLOWS OF THE RIVER.  THE VALUE
OF THESE LANDS WILL BE IMPAIRED BY THE CONSTRUCTION BY THE UNITED
STATES OF THE FRIANT DAM AND ITS DEPENDENT IRRIGATION SYSTEM, AS PART
OF THE CENTRAL VALLEY PROJECT, A GIGANTIC UNDERTAKING BY THE FEDERAL
GOVERNMENT TO REDISTRIBUTE THE PRINCIPAL FRESH WATER RESOURCES OF
CALIFORNIA.  WHILE THE PROJECT WILL HAVE SOME RELATIVELY INSIGNIFICANT
EFFECTS ON NAVIGATION, ITS PRINCIPAL ECONOMIC EFFECTS PERTAIN TO VALUES
REALIZED FROM STORAGE AND REDISTRIBUTION OF WATER FOR POWER,
IRRIGATION, RECLAMATION, FLOOD CONTROL AND OTHER SIMILAR PURPOSES. 
CLAIMING UNDER CALIFORNIA LAW RIPARIAN RIGHTS TO THE BENEFITS FROM THE
ANNUAL INUNDATIONS OF THEIR LANDS, RESPONDENTS SUED IN THE COURT OF
CLAIMS FOR COMPENSATION.  THE GOVERNMENT CONTENDED THAT THE DAMAGE WAS
NONCOMPENSABLE, ON THE GROUND THAT THE ENTIRE PROJECT WAS AUTHORIZED BY
CONGRESS, UNDER THE COMMERCE POWER, AS A MEASURE FOR THE CONTROL OF
NAVIGATION.  HELD:  JUDGMENTS OF THE COURT OF CLAIMS IN FAVOR OF
RESPONDENTS ARE AFFIRMED.  PP. 727-756. 

1.  EVEN IF IT BE ASSUMED THAT FRIANT DAM BEARS SOME RELATION TO
CONTROL OF NAVIGATION, NEVERTHELESS CONGRESS ELECTED TO TREAT IT AS A
RECLAMATION PROJECT, TO RECOGNIZE ANY STATE-CREATED RIGHTS AND TO TAKE
THEM UNDER ITS POWER OF EMINENT DOMAIN; AND THE PROVISIONS OF THE
RECLAMATION ACT, 43 U.S.C. SECS. 371 ET SEQ., PROVIDING FOR
REIMBURSEMENT, ARE APPLICABLE TO THESE CLAIMS.  PP. 731-742. 

(A)  IN UNDERTAKING THE FRIANT PROJECTS AND IMPLEMENTING THE WORK AS
CARRIED FORWARD BY THE RECLAMATION BUREAU, CONGRESS PROCEEDED ON THE
BASIS OF FULL RECOGNITION OF WATER RIGHTS HAVING VALID EXISTENCE UNDER
STATE LAW.  PP. 734-736. 

(B)  NOTWITHSTANDING ITS GENERAL DECLARATION OF PURPOSE THAT THE
CENTRAL VALLEY PROJECT AS A WHOLE IS TO IMPROVE NAVIGATION, CONGRESS
DID NOT INTEND TO INVOKE ITS NAVIGATION SERVITUDE AS TO EACH AND EVERY
ONE OF THIS GROUP OF COORDINATED PROJECTS AND HAS NOT ATTEMPTED TO
TAKE, OR AUTHORIZED THE TAKING, WITHOUT COMPENSATION, OF RIGHTS VALID
UNDER STATE LAW.  PP. 736-739. 

(C)  THE ADMINISTRATIVE PRACTICE WITH REFERENCE TO THIS PROJECT
SUPPORTS THE VIEW THAT IT IS A RECLAMATION PROJECT INVOLVING RESPECT
FOR EXISTING WATER RIGHTS AND COMPENSATION TO OWNERS THEREOF.  PP. 739
742. 

2.  UNDER CALIFORNIA LAW, RESPONDENTS HAD RIPARIAN RIGHTS TO PERIODIC
INUNDATIONS OF THEIR LANDS BY SEASONAL OVERFLOWS OF THE RIVER; THESE
RIGHTS ARE COMPENSABLE UNDER CALIFORNIA LAW; AND THE AWARDS OF THE
COURT OF CLAIMS CORRECTLY APPLIED THE LAW OF CALIFORNIA AS MADE
APPLICABLE TO THESE CLAIMS BY CONGRESS.  PP. 742-755. 

3.  THIS COURT DECLINES TO SET ASIDE THE DETERMINATION OF THE COURT
OF CLAIMS THAT THE DATE FROM WHICH INTEREST IS TO BE ALLOWED IS OCTOBER
20, 1941, THE DATE OF THE FIRST SUBSTANTIAL IMPOUNDMENT OF WATER, EVEN
THOUGH IT HAD NOT THEN PREVENTED BENEFITS FROM REACHING THE PROPERTY. 
P. 755. 

4.  THIS COURT ACCEPTS WITHOUT REVIEW A FINDING BY THE COURT OF
CLAIMS CONSTRUING RESERVATIONS IN DEEDS OF CERTAIN OF THE CLAIMANTS, A
QUESTION GOVERNED BY CONVEYANCING AND REAL PROPERTY LAW PECULIAR TO
THIS ONE CASE, DEPENDING ON LOCAL LAW, AND NOT OF GENERAL INTEREST, AND
ON WHICH THERE IS NO MANIFEST ERROR IN THE FINDING OF THE COURT OF
CLAIMS.  P. 755. 

5.  THE COURT OF CLAIMS ADEQUATELY DESCRIBED THE RIGHTS TAKEN AND FOR
WHICH IT MADE AN AWARD.  P. 756. 

UNITED STATES V. GERLACH LIVE STOCK CO. 

NO. 4.  CERTIORARI TO THE COURT OF CLAIMS.* 

*TOGETHER WITH NO. 5, UNITED STATES V. POTTER; NO. 6, UNITED STATES
V. ERRECA; NO. 7, UNITED STATES V. JAMES J. STEVINSON (A CORPORATION);
NO. 8, UNITED STATES V. STEVINSON; AND NO. 9, UNITED STATES V. 3-H
SECURITIES CO., ALSO ON CERTIORARI TO THE SAME COURT. 

THE COURT OF CLAIMS SEVERALLY AWARDED COMPENSATION TO RESPONDENTS FOR
THE TAKING BY THE UNITED STATES, THROUGH THE CONSTRUCTION OF FRIANT
DAM, OF THEIR RIPARIAN RIGHTS TO ANNUAL INUNDATIONS OF THEIR LANDS
ALONG THE SAN JOAQUIN RIVER IN CALIFORNIA.  111 CT. CL. 1, 89, 76
F.SUPP.  87, 99.  THIS COURT GRANTED CERTIORARI.  335 U.S. 883. 
AFFIRMED, P. 756. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO RELIEVE THE UNITED STATES FROM SIX AWARDS BY THE
COURT OF CLAIMS AS JUST COMPENSATION FOR DEPRIVATION OF RIPARIAN RIGHTS
ALONG THE SAN JOAQUIN RIVER IN CALIFORNIA CAUSED BY CONSTRUCTION OF
FRIANT DAM, AND ITS DEPENDENT IRRIGATION SYSTEM, AS PART OF THE CENTRAL
VALLEY PROJECT. 

THIS IS A GIGANTIC UNDERTAKING TO REDISTRIBUTE THE PRINCIPAL FRESH
WATER RESOURCES OF CALIFORNIA.  CENTRAL VALLEY IS A VAST BASIN,
STRETCHING OVER 400 MILES ON ITS POLAR AXIS AND A HUNDRED IN WIDTH, IN
THE HEART OF CALIFORNIA.  BOUNDED BY THE SIERRA NEVADA ON THE EAST AND
BY COASTAL RANGES ON THE WEST, IT CONSISTS ACTUALLY OF TWO SEPARATE
RIVER VALLEYS WHICH MERGE IN A SINGLE PASS TO THE SEA AT THE GOLDEN
GATE.  ITS RICH ACRES, COUNTED IN THE MILLIONS, ARE DEFICIENT IN
RAINFALL AND MUST REMAIN GENERALLY ARID AND UNFRUITFUL UNLESS
ARTIFICIALLY WATERED. 

WATER RESOURCES THERE ARE, IF THEY CAN BE CAPTURED AND DISTRIBUTED
OVER THE LAND.  FROM THE HIGHLAND BARRICADE AT THE NORTH THE SACRAMENTO
RIVER FLOWS SOUTHERLY, WHILE FROM THE YOSEMITE REGION AT THE SOUTHEAST
THE SAN JOAQUIN RIVER WINDS NORTHEASTERLY UNTIL THE TWO MEET AND
CONSORT IN OUTLET TO THE SEA THROUGH ESTUARIES THAT CONNECT WITH SAN
FRANCISCO BAY.  THESE DOMINATING RIVERS COLLECT TRIBUTE FROM MANY
MOUNTAIN CURRENTS, CARRY THEIR HOARDINGS PAST PARCHED PLAINS AND
THRIFTLESSLY DISSIPATE THEM IN THE PACIFIC TIDES.  WHEN IT IS SOUGHT TO
MAKE THESE STREAMS YIELD THEIR WASTING TREASURES TO THE LANDS THEY
TRAVERSE, MEN ARE CONFRONTED WITH A PARADOX OF NATURE; FOR THE
SACRAMENTO, WITH ALMOST TWICE THE WATER, IS ACCESSIBLE TO THE LEAST
LAND, WHEREAS ABOUT THREE-FIFTHS OF THE VALLEY LIES IN THE DOMAIN OF
THE LESS AFFLUENT SAN JOAQUIN. 

TO HARNESS THESE WASTING WATERS, OVERCOME THIS PERVERSITY OF NATURE
AND MAKE WATER AVAILABLE WHERE IT WOULD BE OF GREATEST SERVICE, THE
STATE OF CALIFORNIA PROPOSED TO RE-ENGINEER ITS NATURAL WATER
DISTRIBUTION.  THIS PROJECT WAS TAKEN OVER BY THE UNITED STATES IN 1935
AND HAS SINCE BEEN A FEDERAL ENTERPRISE.  THE PLAN, IN BROAD OUTLINE,
IS TO CAPTURE AND STORE WATERS OF BOTH RIVERS AND MANY OF THEIR
TRIBUTARIES IN THEIR HIGHLAND BASINS, IN SOME CASES TAKING ADVANTAGE OF
THE RESULTING HEAD FOR GENERATION OF ELECTRIC ENERGY.  SHASTA DAM IN
THE NORTH WILL PRODUCE POWER FOR USE THROUGHOUT MUCH OF THE STATE AND
WILL PROVIDE A GREAT RESERVOIR TO EQUALIZE SEASONAL FLOWS OF THE
SACRAMENTO.  A MORE DRAMATIC FEATURE OF THE PLAN IS THE WATER STORAGE
AND IRRIGATION SYSTEM AT THE OTHER END OF THE VALLEY.  THERE THE WATERS
OF THE SAN JOAQUIN WILL BE ARRESTED AT FRIANT, WHERE THEY WOULD TAKE
LEAVE OF THE MOUNTAINS, AND WILL BE DIVERTED NORTH AND SOUTH THROUGH A
SYSTEM OF CANALS AND SOLD TO IRRIGATE MORE THAN A MILLION ACRES OF
LAND, SOME AS FAR AS 160 MILES AWAY.  A COST OF REFRESHING THIS GREAT
EXPANSE OF SEMIARID LAND IS THAT, EXCEPT FOR OCCASIONAL SPILLS, ONLY A
DRY RIVER BED WILL CROSS THE PLAIN BELOW THE DAM.  HERE, HOWEVER,
SURPLUS WATERS FROM THE NORTH ARE UTILIZED, FOR THROUGH A 150-MILE
CANAL SACRAMENTO WATER IS TO BE PUMPED TO THE CULTIVATED LANDS FORMERLY
DEPENDENT ON THE SAN JOAQUIN. 

BOTH RIVERS AFFORD NAVIGATION - THE SACRAMENTO FOR A CONSIDERABLE
DISTANCE INLAND, THE SAN JOAQUIN PRACTICALLY ONLY AT TIDEWATER LEVELS. 
THE PLAN WILL HAVE NAVIGATION CONSEQUENCES, PRINCIPALLY ON THE
SACRAMENTO; BUT THE EFFECTS ON NAVIGATION ARE ECONOMICALLY
INSIGNIFICANT AS COMPARED WITH THE VALUES REALIZED FROM REDISTRIBUTION
OF WATER BENEFITS. 

SUCH A PROJECT INEVITABLY UNSETTLES MANY ADVANTAGES LONG ENJOYED IN
RELIANCE UPON THE NATURAL ORDER, AND IT IS WITH DEPRIVATION OF SUCH
BENEFITS THAT WE ARE HERE CONCERNED. 

CLAIMANTS OWN LAND PARCELS RIPARIAN TO THE SAN JOAQUIN N1.  THESE ARE
CALLED "UNCONTROLLED GRASS LANDS," TO DISTINGUISH THEM FROM EITHER CROP
LANDS OR "CONTROLLED GRASS LANDS," BOTH OF WHICH HAVE LONG BEEN
IRRIGATED THROUGH CONTROLLED SYSTEMS SUPPLIED FROM THE STREAM.  NEITHER
OF THESE LATTER WILL BE INJURED BY THE DIVERSION, FOR THEY ARE TO BE
PROVIDED WITH THE REPLACEMENT WATER FROM THE SACRAMENTO. 

UNCONTROLLED GRASS LANDS INVOLVED IN THE CLAIMS ARE PARTS OF A LARGE
RIPARIAN AREA WHICH BENEFITS FROM THE NATURAL SEASONAL OVERFLOW OF THE
STREAM.  EACH YEAR, WITH PREDICTABLE REGULARITY, THE STREAM SWELLS AND
SUBMERGES AND SATURATES THESE LOW-LYING LANDS.  THEY ARE MOISTENED AND
ENRICHED BY THESE INUNDATIONS SO THAT FORAGE AND PASTURAGE THRIVE, AS
OTHERWISE THEY CAN NOT.  THE HIGH STAGE OF THE RIVER, WHILE FLUCTUATING
IN HEIGHT AND VARIABLE IN ARRIVAL, IS NOT A FLOOD IN THE SENSE OF AN
ABNORMAL AND SUDDEN DELUGE.  THE RIVER RISES AND FALLS IN RHYTHM WITH
THE CYCLE OF SEASONS, EXPANSION BEING NORMAL FOR ITS TIME AS
CURTAILMENT IS FOR OTHERS, AND BOTH ARE REPEATED WITH CONSIDERABLE
CONSTANCY OVER THE YEARS.  IT SHOULD BE NOTED, HOWEVER, THAT CLAIMANTS'
BENEFIT COMES ONLY FROM THE VERY CREST OF THIS SEASONAL STAGE, WHICH
CREST MUST BE ELEVATED AND BORNE TO THEIR LANDS ON THE BASE OF A FULL
RIVER, NONE OF WHICH CAN BE UTILIZED FOR IRRIGATION ABOVE AND LITTLE OF
IT BELOW THEM.  THEIR CLAIM OF RIGHT IS, IN OTHER WORDS, TO ENJOY
NATURAL, SEASONAL FLUCTUATION UNHINDERED, WHICH PRESUPPOSES A PEAK FLOW
LARGELY UNUTILIZED. 

THE PROJECT PUTS AN END TO ALL THIS.  EXCEPT AT RARE INTERVALS, THERE
WILL BE NO SPILL OVER FRIANT DAM, THE BED OF THE SAN JOAQUIN ALONG
CLAIMANTS' LANDS WILL BE PARCHED, AND THEIR GRASS LANDS WILL BE
BARREN.  UNLIKE THE SUPPLY UTILIZED FOR NEARBY CROP AND "CONTROLLED"
LANDS, THE VANISHING SAN JOAQUIN INUNDATION CANNOT BE REPLACED WITH
SACRAMENTO WATER.  CLAIMANTS HAVE BEEN SEVERALLY AWARDED COMPENSATION
FOR THIS TAKING OF THEIR ANNUAL INUNDATIONS, ON THE THEORY THAT, AS
PART OF THE NATURAL FLOW, ITS CONTINUANCE IS A RIGHT ANNEXED TO THEIR
RIPARIAN PROPERTY.  111 CT. CL. 1, 89, 76 F.SUPP.  87, 99.  THE
PRINCIPAL ISSUES ARE COMMON TO THE SIX CASES IN WHICH WE GRANTED
CERTIORARI.  335 U.S. 883. 

           I. NAVIGATION OR RECLAMATION PROJECT? 

THE SOLICITOR GENERAL CONTENDS THAT THIS OVERALL PROJECT, AND EACH
PART OF IT, HAS BEEN AUTHORIZED BY CONGRESS, UNDER THE COMMERCE POWER,
AS A MEASURE FOR CONTROL OF NAVIGATION.  CLAIMANTS ON THE OTHER HAND
URGE THAT ALTHOUGH IMPROVEMENT OF NAVIGATION WAS ONE OBJECTIVE OF THE
CENTRAL VALLEY UNDERTAKING AS A WHOLE, NEVERTHELESS CONSTRUCTION OF THE
FRIANT DAM AND THE CONSEQUENT TAKING OF SAN JOAQUIN WATER RIGHTS HAD NO
PURPOSE OR EFFECT EXCEPT FOR IRRIGATION AND RECLAMATION.  THIS, IT IS
CLAIMED, WAS NOT ONLY THE ACTUAL, BUT THE AVOWED PURPOSE OF CONGRESS. 
ON THESE CONFLICTING ASSUMPTIONS THE PARTIES PREDICATE CONTRARY
CONCLUSIONS AS TO THE RIGHT TO COMPENSATION. 

IN THE RIVERS AND HARBORS ACT OF AUGUST 26, 1937, SEC. 2, 50 STAT.
844, 850, AND AGAIN IN THE RIVERS AND HARBORS ACT OF OCTOBER 17, 1940,
54 STAT. 1198, 1199-1200, CONGRESS SAID THAT "THE ENTIRE CENTRAL VALLEY
PROJECT  ...  IS  ...  DECLARED TO BE FOR THE PURPOSES OF IMPROVING
NAVIGATION, REGULATING THE FLOW OF THE SAN JOAQUIN RIVER AND THE
SACRAMENTO RIVER, CONTROLLING FLOODS, PROVIDING FOR STORAGE AND FOR THE
DELIVERY OF THE STORED WATERS THEREOF  ...  "  THE 1937 ACT ALSO
PROVIDED THAT "THE SAID DAM AND RESERVOIRS SHALL BE USED, FIRST, FOR
RIVER REGULATION, IMPROVEMENT OF NAVIGATION, AND FLOOD CONTROL  ...  " 

BUT IT ALSO IS TRUE, AS POINTED OUT BY CLAIMANTS, THAT IN THESE ACTS
CONGRESS EXPRESSLY "REAUTHORIZED"  FN2  A PROJECT ALREADY INITIATED BY
PRESIDENT ROOSEVELT, WHO, ON SEPTEMBER 10, 1935, MADE ALLOTMENT OF
FUNDS FOR CONSTRUCTION OF FRIANT DAM AND CANALS UNDER THE FEDERAL
EMERGENCY RELIEF APPROPRIATION ACT, 49 STAT. 115, SEC. 4, AND PROVIDED
THAT THEY "SHALL BE REIMBURSABLE IN ACCORDANCE WITH THE RECLAMATION
LAWS."  FN3  A FINDING OF FEASIBILITY, AS REQUIRED BY LAW, FN4  WAS
MADE BY THE SECRETARY OF THE INTERIOR ON NOVEMBER 26, 1935, MAKING NO
REFERENCE TO NAVIGATION, AND HIS RECOMMENDATION OF "THE CENTRAL VALLEY
DEVELOPMENT AS A FEDERAL RECLAMATION PROJECT" WAS APPROVED BY THE
PRESIDENT ON DECEMBER 2, 1935. 

WHEN IT "REAUTHORIZED" THE CENTRAL VALLEY UNDERTAKING, CONGRESS IN
THE SAME ACT PROVIDED THAT "THE PROVISIONS OF THE RECLAMATION LAW,  FN5
AS AMENDED, SHALL GOVERN THE REPAYMENT OF EXPENDITURES AND THE
CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE DAMS, CANALS, POWER
PLANTS, PUMPING PLANTS, TRANSMISSION LINES, AND INCIDENTAL WORKS DEEMED
NECESSARY TO SAID ENTIRE PROJECT, AND THE SECRETARY OF THE INTERIOR MAY
ENTER INTO REPAYMENT CONTRACTS, AND OTHER NECESSARY CONTRACTS, WITH
STATE AGENCIES, AUTHORITIES, ASSOCIATIONS, PERSONS, AND CORPORATIONS,
EITHER PUBLIC OR PRIVATE, INCLUDING ALL AGENCIES WITH WHICH CONTRACTS
ARE AUTHORIZED UNDER THE RECLAMATION LAW, AND MAY ACQUIRE BY
PROCEEDINGS IN EMINENT DOMAIN, OR OTHERWISE, ALL LANDS, RIGHTS-OF-WAY,
WATER RIGHTS, AND OTHER PROPERTY NECESSARY FOR SAID PURPOSES:  ...  " 

THE CENTRAL VALLEY BASIN DEVELOPMENT ENVISIONS, IN ONE SENSE, AN
INTEGRATED UNDERTAKING, BUT ALSO AN AGGREGATE OF MANY SUBSIDIARY
PROJECTS, EACH OF WHICH IS OF FIRST MAGNITUDE.  IT CONSISTS OF THIRTY
EIGHT MAJOR DAMS AND RESERVOIRS BORDERING THE VALLEY FLOOR AND SCORES
OF SMALLER ONES IN HEADWATERS.  IT CONTEMPLATES TWENTY-EIGHT HYDROPOWER
GENERATING STATIONS.  IT INCLUDES HUNDREDS OF MILES OF MAIN CANALS,
THOUSANDS OF MILES OF LATERALS AND DRAINS, ELECTRIC TRANSMISSION AND
FEEDER LINES AND SUBSTATIONS, AND A VAST NETWORK OF STRUCTURES FOR THE
CONTROL AND USE OF WATER ON TWO MILLION ACRES OF LAND ALREADY
IRRIGATED, THREE MILLION ACRES OF LAND TO BE NEWLY IRRIGATED, 360,000
ACRES IN THE DELTA NEEDING PROTECTION FROM INTRUSIONS OF SALT WATER,
AND FOR MUNICIPAL AND MISCELLANEOUS PURPOSES INCLUDING CITIES, TOWNS,
DUCK CLUBS AND GAME REFUGES.  THESE PROJECTS ARE NOT ONLY WIDELY
SEPARATED GEOGRAPHICALLY, MANY OF THEM PHYSICALLY INDEPENDENT IN
OPERATION, BUT THEY ARE AUTHORIZED IN SEPARATE ACTS FROM YEAR TO YEAR
AND ARE TO BE CONSTRUCTED AT DIFFERENT TIMES OVER A CONSIDERABLE SPAN
OF YEARS.  A FORMULA HAS BEEN APPROVED BY THE PRESIDENT BY WHICH
MULTIPLE PURPOSE DAMS ARE THE RESPONSIBILITY OF THE BUREAU OF
RECLAMATION, AND DAMS AND OTHER WORKS ONLY FOR FLOOD CONTROL ARE
EXCLUSIVELY THE RESPONSIBILITY OF THE ARMY ENGINEERS.  FN6  THE ENTIRE
FRIANT AND SAN JOAQUIN PROJECTS AT ALL TIMES HAVE BEEN ADMINISTERED BY
THE BUREAU OF RECLAMATION. 

WE CANNOT DISAGREE WITH CLAIMANTS' CONTENTION THAT IN UNDERTAKING
THESE FRIANT PROJECTS AND IMPLEMENTING THE WORK AS CARRIED FORWARD BY
THE RECLAMATION BUREAU, CONGRESS PROCEEDED ON THE BASIS OF FULL
RECOGNITION OF WATER RIGHTS HAVING VALID EXISTENCE UNDER STATE LAW.  BY
ITS COMMAND THAT THE PROVISIONS OF THE RECLAMATION LAW SHOULD GOVERN
THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE SEVERAL
CONSTRUCTION PROJECTS, CONGRESS DIRECTED THE SECRETARY OF THE INTERIOR
TO PROCEED IN CONFORMITY WITH STATE LAWS, GIVING FULL RECOGNITION TO
EVERY RIGHT VESTED UNDER THOSE LAWS.  FN7  CF. NEBRASKA V. WYOMING, 295
U.S. 40, 43; POWER CO. V. CEMENT CO., 295 U.S. 142, 164; NEBRASKA V.
WYOMING, 325 U.S. 589, 614; MASON CO. V. TAX COMM'N, 302 U.S. 186.  IN
THIS RESPECT, CONGRESS' ACTION PARALLELS THAT IN FORD & SON V. LITTLE
FALLS FIBRE CO., 280 U.S. 369.  THE ORIGINAL PLAN CALLED FOR PURCHASE
OF WATER RIGHTS AND INCLUDED AN ESTIMATE OF THEIR COST.  FN8 WE ARE
ADVISED BY THE GOVERNMENT THAT AT LEAST THROUGHOUT ADMINISTRATION OF
CALIFORNIA RECLAMATION PROJECTS IT HAS BEEN THE CONSISTENT PRACTICE OF
THE BUREAU OF RECLAMATION TO RESPECT SUCH PROPERTY RIGHTS.  SUCH HAS
SPECIFICALLY BEEN THE BUREAU'S PRACTICE IN CONNECTION WITH THE FRIANT
PROJECT, AND THIS HAS BEEN REPORTED TO CONGRESS N9, WHICH HAS RESPONDED
SOME NINE TIMES IN THE PAST TWELVE YEARS TO REQUESTS FOR APPROPRIATIONS
TO MEET SUCH EXPENSES.  WE THINK THIS AMOUNTS, NOT TO AUTHORIZATIONS
AND DECLARATIONS CREATING CAUSES OF ACTION AGAINST THE UNITED STATES,
BUT TO AWARENESS AND APPROVAL OF ADMINISTRATIVE CONSTRUCTION.  WE THINK
IT CLEAR THAT THROUGHOUT THE CONCEPTION, ENACTMENT AND SUBSEQUENT
ADMINISTRATION OF THE PLAN, CONGRESS HAS RECOGNIZED THE PROPERTY STATUS
OF WATER RIGHTS VESTED UNDER CALIFORNIA LAW. 

IT IS NOT TO BE DOUBTED THAT THE TOTALITY OF A PLAN SO COMPREHENSIVE
HAS SOME LEGITIMATE RELATION TO CONTROL OF INLAND NAVIGATION OR THAT
PARTICULAR COMPONENTS MAY BE DESCRIBED WITHOUT PRETENSE AS NAVIGATION
AND FLOOD CONTROL PROJECTS.  THIS MADE IT APPROPRIATE THAT CONGRESS
SHOULD JUSTIFY MAKING THIS UNDERTAKING A NATIONAL BURDEN BY GENERAL
REFERENCE TO ITS POWER OVER COMMERCE AND NAVIGATION.    THE GOVERNMENT
CONTENDS THAT THE OVERALL DECLARATION OF PURPOSE IS APPLICABLE TO
FRIANT DAM AND RELATED IRRIGATION FACILITIES AS AN INTEGRAL PART OF
"WHAT CONGRESS QUITE PROPERLY TREATED AS A UNIT."  ADVERTING TO UNITED
STATES V. WILLOW RIVER CO., 324 U.S. 499; UNITED STATES V. COMMODORE
PARK, 324 U.S. 386; UNITED STATES V. APPALACHIAN POWER CO., 311 U.S.
377; UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, THE GOVERNMENT
RELIES ON THE RULE THAT IT DOES NOT HAVE TO COMPENSATE FOR DESTRUCTION
OF RIPARIAN INTERESTS OVER WHICH AT THE POINT OF CONFLICT IT HAS A
SUPERIOR NAVIGATION EASEMENT THE EXERCISE OF WHICH OCCASIONS THE
DAMAGE.  AND IRRESPECTIVE OF DIVISIBILITY OF THE ENTIRE CENTRAL VALLEY
UNDERTAKING, THE GOVERNMENT CONTENDS THAT FRIANT DAM INVOLVES A MEASURE
OF FLOOD CONTROL, AN END WHICH IS SENSIBLY RELATED TO CONTROL OF
NAVIGATION.  OKLAHOMA V. ATKINSON CO., 313 U.S. 508. 

CLAIMANTS, ON THE OTHER HAND, URGE THAT AT LEAST THE FRIANT DAM
PROJECT WAS WHOLLY UNRELATED TO NAVIGATION ENDS AND COULD NOT BE
CONTROLLED BY THE GENERAL CONGRESSIONAL DECLARATION OF PURPOSE.  THEY
POINT OUT THAT, ALTHOUGH DEFINITIONS OF NAVIGATION HAVE BEEN EXPANDED,
UNITED STATES V. APPALACHIAN POWER CO., SUPRA, IN EVERY INSTANCE IN
WHICH THIS COURT HAS DENIED COMPENSATION FOR DEPRIVATION OF RIPARIAN
RIGHTS IT HAS SPECIFICALLY NOTED THAT THE FEDERAL UNDERTAKING BORE SOME
POSITIVE RELATION TO CONTROL OF NAVIGATION.  UNITED STATES V. WILLOW
RIVER CO., SUPRA, 510; UNITED STATES V. COMMODORE PARK, SUPRA, 391;
UNITED STATES V. APPALACHIAN POWER CO., SUPRA, 423; UNITED STATES V.
CHANDLER-DUNBAR CO., SUPRA, 62; AND CASES CITED.  AND, REFERRING TO
INTERNATIONAL PAPER CO. V. UNITED STATES, 282 U.S. 399; UNITED STATES
V. RIVER ROUGE CO., 269 U.S. 411, AND CASES CITED, THEY OBSERVE THAT
THIS COURT HAS NEVER PERMITTED THE GOVERNMENT TO PERVERT ITS NAVIGATION
SERVITUDE INTO A RIGHT TO DESTROY RIPARIAN INTERESTS WITHOUT
REIMBURSEMENT WHERE NO NAVIGATION PURPOSE EXISTED. 

SINCE WE DO NOT AGREE THAT CONGRESS INTENDED TO INVOKE ITS NAVIGATION
SERVITUDE AS TO EACH AND EVERY ONE OF THIS GROUP OF COORDINATED
PROJECTS, WE DO NOT REACH THE CONSTITUTIONAL OR OTHER ISSUES THUS
POSED.  ACCORDINGLY, WE NEED NOT DECIDE WHETHER A GENERAL DECLARATION
OF PURPOSE IS CONTROLLING WHERE INTERFERENCE WITH NAVIGATION IS NEITHER
THE MEANS, SOUTH CAROLINA V. GEORGIA, 93 U.S. 4, NOR THE CONSEQUENCE,
UNITED STATES V. COMMODORE PARK, SUPRA, OF ITS ADVANCEMENT ELSEWHERE. 
SIMILARLY, WE NEED NOT PONDER WHETHER, BY VIRTUE OF A HIGHLY FICTIONAL
NAVIGATION PURPOSE, THE GOVERNMENT COULD DESTROY THE FLOW OF A
NAVIGABLE STREAM AND CARRY AWAY ITS WATERS FOR SALE TO PRIVATE
INTERESTS WITHOUT COMPENSATION TO THOSE DEPRIVED OF THEM.  WE HAVE
NEVER HELD THAT OR ANYTHING LIKE IT, AND WE NEED NOT HERE PASS ON ANY
QUESTION OF CONSTITUTIONAL POWER; FOR WE DO NOT FIND THAT CONGRESS HAS
ATTEMPTED TO TAKE OR AUTHORIZED THE TAKING, WITHOUT COMPENSATION, OF
ANY RIGHTS VALID UNDER STATE LAW. 

ON THE CONTRARY, CONGRESS' GENERAL DIRECTION OF PURPOSE WE THINK WAS
INTENDED TO HELP MEET ANY OBJECTION TO ITS CONSTITUTIONAL POWER TO
UNDERTAKE THIS BIG BUNDLE OF BIG PROJECTS.  THE CUSTOM OF INVOKING THE
NAVIGATION POWER IN AUTHORIZING IMPROVEMENTS APPEARS TO HAVE HAD ITS
ORIGIN WHEN THE POWER OF THE CENTRAL GOVERNMENT TO MAKE INTERNAL
IMPROVEMENTS WAS CONTESTED AND IN DOUBT.  IT WAS NOT UNTIL 1936 THAT
THIS COURT IN UNITED STATES V. BUTLER, 297 U.S. 1, DECLARED FOR THE
FIRST TIME, AND WITHOUT DISSENT ON THIS POINT, THAT, IN CONFERRING
POWER UPON CONGRESS TO TAX "TO PAY THE DEBTS AND PROVIDE FOR THE COMMON
DEFENCE AND GENERAL WELFARE OF THE UNITED STATES," THE CONSTITUTION
DELEGATES A POWER SEPARATE AND DISTINCT FROM THOSE LATER ENUMERATED,
AND ONE NOT RESTRICTED BY THEM, AND THAT CONGRESS HAS A SUBSTANTIVE
POWER TO TAX AND APPROPRIATE FOR THE GENERAL WELFARE, LIMITED ONLY BY
THE REQUIREMENT THAT IT SHALL BE EXERCISED FOR THE COMMON BENEFIT AS
DISTINGUISHED FROM SOME MERE LOCAL PURPOSE.  IF ANY DOUBT OF THIS POWER
REMAINED, IT WAS LAID TO REST THE FOLLOWING YEAR IN HELVERING V. DAVIS,
301 U.S. 619, 640.  THUS THE POWER OF CONGRESS TO PROMOTE THE GENERAL
WELFARE THROUGH LARGE-SCALE PROJECTS FOR RECLAMATION, IRRIGATION, OR
OTHER INTERNAL IMPROVEMENT, IS NOW AS CLEAR AND AMPLE AS ITS POWER TO
ACCOMPLISH THE SAME RESULTS INDIRECTLY THROUGH RESORT TO STRAINED
INTERPRETATION OF THE POWER OVER NAVIGATION.  FN10  BUT IN VIEW OF THIS
BACKGROUND WE THINK THAT REFERENCE TO THE NAVIGATION POWER WAS IN
JUSTIFICATION OF FEDERAL ACTION ON THE WHOLE, NOT FOR EFFECT ON PRIVATE
RIGHTS AT EVERY LOCATION ALONG EACH COMPONENT PROJECT. 

EVEN IF WE ASSUME, WITH THE GOVERNMENT, THAT FRIANT DAM IN FACT BEARS
SOME RELATION TO CONTROL OF NAVIGATION, WE THINK NEVERTHELESS THAT
CONGRESS REALISTICALLY ELECTED TO TREAT IT AS A RECLAMATION PROJECT. 
IT WAS SO CONCEIVED AND AUTHORIZED BY THE PRESIDENT AND IT WAS SO
REPRESENTED TO CONGRESS.  WHETHER CONGRESS COULD HAVE CHOSEN TO TAKE
CLAIMANTS' RIGHTS BY THE EXERCISE OF ITS DOMINANT NAVIGATION SERVITUDE
IS IMMATERIAL.  BY DIRECTING THE SECRETARY TO PROCEED UNDER THE
RECLAMATION ACT OF 1902, CONGRESS ELECTED NOT "TO IN ANY WAY INTERFERE
WITH THE LAWS OF ANY STATE  ...  RELATING TO THE CONTROL,
APPROPRIATION, USE, OR DISTRIBUTION OF WATER USED IN IRRIGATION, OR ANY
VESTED RIGHT ACQUIRED THEREUNDER."  32 STAT. 388, 390. 

WE CANNOT TWIST THESE WORDS INTO AN ELECTION ON THE PART OF CONGRESS
UNDER ITS NAVIGATION POWER TO TAKE SUCH WATER RIGHTS WITHOUT
COMPENSATION.  IN THE LANGUAGE OF MR. JUSTICE HOLMES, WRITING FOR THE
COURT IN INTERNATIONAL PAPER CO. V. UNITED STATES, 282 U.S. 399, 407,
CONGRESS "PROCEEDED ON THE FOOTING OF A FULL RECOGNITION OF
(RIPARIANS') RIGHTS AND OF THE GOVERNMENT'S DUTY TO PAY FOR THE TAKING
THAT (IT) PURPORTED TO ACCOMPLISH."  WE CONCLUDE THAT, WHETHER REQUIRED
TO DO SO OR NOT, CONGRESS ELECTED TO RECOGNIZE ANY STATE-CREATED RIGHTS
AND TO TAKE THEM UNDER ITS POWER OF EMINENT DOMAIN.  FN11 

WE ARE GUIDED TO THIS CONCLUSION BY THE INTERPRETATION PLACED ON
CONGRESS' ACTS BY THE RECLAMATION BUREAU, WHICH, IN ADMINISTERING THE
PROJECT, HAS AT ALL TIMES PURSUED A COURSE IMPOSSIBLE TO RECONCILE WITH
PRESENT CONTENTIONS OF THE GOVERNMENT.  FROM THE BEGINNING, IT HAS
ACTED ON THE ASSUMPTION THAT ITS FRIANT UNDERTAKING WAS A RECLAMATION
PROJECT.  EVEN A CASUAL INSPECTION OF ITS COMMITTEE HEARINGS AND
REPORTS LEAVES NO DOUBT THAT CONGRESS WAS FAMILIAR WITH AND APPROVED
THIS INTERPRETATION.  ALTHOUGH THE SOLICITOR GENERAL CONTENDS THAT,
BECAUSE OF THE NAVIGATION PURPOSE REMOTELY INVOLVED, DEPRIVATION OF
WATER RIGHTS ALONG THE SAN JOAQUIN IS NOT COMPENSABLE, WE HAVE OBSERVED
THAT THE PLAN AS ORIGINALLY ADOPTED AND AS CARRIED OUT BY THE BUREAU
INCLUDED REPLACEMENT AT GREAT EXPENSE OF ALL WATER FORMERLY USED FOR
CROPS AND "CONTROLLED GRASS LANDS" AND PURCHASE OF THAT USED ON
MARGINAL PASTURE LANDS.  FN12  IT HAS CONSISTENTLY ADVISED THE CONGRESS
THAT IT WAS PURCHASING SAN JOAQUIN WATER RIGHTS AND APPROPRIATIONS HAVE
BEEN MADE ACCORDINGLY.  FN13  MOREOVER, CONGRESS  FN14  AND THE WATER
USERS  FN15  HAVE BEEN ADVISED THAT, IN PROSECUTION OF THE WORK,
EXISTING WATER RIGHTS WOULD BE RESPECTED. 

THIS ADMINISTRATIVE PRACTICE HAS BEEN EXTENDED EVEN TO THE LANDS IN
QUESTION.  PURSUANT TO ITS PLAN, THE BUREAU OFFERED TO PURCHASE THE
RIGHTS OF CLAIMANTS IN NOS. 7, 8 AND 9, BUT THE PARTIES COULD NOT AGREE
ON THE PRICE.  IN ADDITION, IT ENTERED INTO A WRITTEN CONTRACT WITH
MILLER & LUX, INC., PURCHASING FOR $2,450,000 RIPARIAN RIGHTS WHICH
INCLUDED SOME IDENTICAL WITH THOSE THE GOVERNMENT NOW DENIES TO EXIST. 
IN FACT IT INCLUDES THE VERY RIGHTS NOW ASSERTED BY CLAIMANTS GERLACH,
ERRECA AND POTTER, WHO OBTAINED TITLE TO THEIR RIPARIAN PROPERTIES FROM
MILLER & LUX.  BECAUSE OF CERTAIN RESERVATIONS IN THEIR GRANTS, IT WAS
POSSIBLE THAT MILLER & LUX RETAINED THE RIGHTS RIPARIAN TO THESE
PROPERTIES.  THE GOVERNMENT THEREFORE AGREED WITH MILLER & LUX THAT THE
SUM OF $511,350 SHOULD BE DEPOSITED WITH AN ESCROW AGENT.  IF FINAL
JUDGMENTS OBLIGATE THE UNITED STATES TO MAKE COMPENSATION TO MILLER &
LUX GRANTEES FOR SUCH RIPARIAN GRASS LANDS, THE UNITED STATES SHALL BE
REIMBURSED FROM THE ESCROW FUND IN AN AMOUNT NOT EXCEEDING $9 PER
ACRE.  HOWEVER, IF FINAL JUDGMENTS DISMISS THE CLAIMS, THE ESCROWED
FUNDS GO TO MILLER & LUX.  THE SUBSTANCE OF THIS STRANGE TRANSACTION IS
THAT THE GOVERNMENT, WHICH NOW ASKS US TO HOLD THAT THERE ARE NO SUCH
RIPARIAN RIGHTS, HAS ALREADY BOUGHT AND PAID FOR THEM AT THE PRICE
WHICH THE COURT OF CLAIMS HAS ALLOWED.  THE RESULTS OF THE GOVERNMENT'S
BARGAIN ARE THAT, IF WE HOLD THERE ARE NO RIGHTS, MILLER & LUX WILL BE
PAID FOR THEM; AND, IF WE HOLD THERE ARE SUCH RIGHTS, THEY WILL BE PAID
FROM WHAT OTHERWISE GOES TO MILLER & LUX.  AS TO THESE THREE CASES, THE
GOVERNMENT IS DEFENDING AGAINST THE CLAIMS, NOT AS THE REAL PARTY IN
INTEREST, BUT BECAUSE IT UNDERTOOK TO DO SO ON BEHALF OF MILLER & LUX. 

OF COURSE, THIS COURT IS NOT BOUND BY ADMINISTRATIVE MISTAKES.  IF
THE GOVERNMENT HAD CONTRACTED TO PAY FOR RIGHTS WHICH ARE NONEXISTENT,
IT WOULD NOT PRECLUDE US FROM UPHOLDING LATER AND BETTER ADVISED
CONTENTIONS.  BUT WHEN A PROJECT HAS BEEN REGARDED BY THE HIGHEST
EXECUTIVE AUTHORITIES AS A RECLAMATION PROJECT, AND HAS BEEN CARRIED AS
SUCH FROM ITS INITIATION TO FINAL PAYMENT FOR THESE RIGHTS, AND
CONGRESS, KNOWING ITS HISTORY, HAS GIVEN THE APPROVALS THAT IT HAS, WE
THINK THERE IS NO GROUND FOR ASKING US TO HOLD THAT THE PROVISIONS OF
THE RECLAMATION ACT DO NOT APPLY.  WE HOLD THAT THEY DO APPLY AND WE
THEREFORE TURN, AS THAT ACT BIDS US, TO THE LAWS OF THE STATE TO
DETERMINE THE RIGHTS AND LIABILITIES OF LANDOWNER AND APPROPRIATOR. 

           II.  CLAIMANTS' RIPARIAN RIGHTS UNDER CALIFORNIA

              LAW. 

THE ADVERSARIES IN THIS CASE INVOKE RIVAL DOCTRINES OF WATER LAW
WHICH HAVE BEEN IN COMPETITION THROUGHOUT CALIFORNIA LEGAL HISTORY. 
THE CLAIMS ARE EXPRESSLY BASED ON COMMON-LAW RIPARIAN-RIGHTS DOCTRINES
AS DECLARED BY CALIFORNIA COURTS.  THE UNITED STATES, ON THE OTHER
HAND, BY VIRTUE OF THE RECLAMATION ACT, STANDS IN THE POSITION OF AN
UPSTREAM APPROPRIATOR FOR A BENEFICIAL USE. 

THE GOVERNING WATER LAW OF CALIFORNIA MUST NOW BE DERIVED FROM A 1928
AMENDMENT TO ITS CONSTITUTION  FN16  WHICH COMPRESSES INTO A SINGLE
PARAGRAPH A RECONCILIATION AND MODIFICATION OF DOCTRINES EVOLVED IN
LITIGATIONS THAT HAVE VEXED ITS JUDICIARY FOR A CENTURY.  ITS TEXT
LEAVES MANY QUESTIONS TO BE ANSWERED, AND NEITHER IT NOR ANY
LEGISLATION OR JUDICIAL DECISION PROVIDES A DIRECT AND EXPLICIT
DETERMINATION OF THE PRESENT STATE LAW ON ISSUES BEFORE US.  BUT SINCE
THE FEDERAL LAW ADOPTS THAT OF THE STATE AS THE TEST OF FEDERAL
LIABILITY, WE MUST VENTURE A CONCLUSION AS TO PECULIARLY LOCAL LAW.  WE
CAN DO SO ONLY IN THE LIGHT OF A LONG HISTORY OF STRIFE AND DOCTRINAL
CONFLICT, WHICH CALIFORNIA SAYS MUST BE KNOWN BY EVERY JUDGE OF THESE
MATTERS, CONGER V. WEAVER, 6 CAL. 548, AND IN CONTINUITY WITH WHICH
BOTH THE CRYPTIC TEXT OF THE AMENDMENT AND THE POLICY OF FEDERAL
STATUTES BECOME MORE INTELLIGIBLE.  FN17 

UPON ACQUIRING STATEHOOD IN 1850, CALIFORNIA ADOPTED THE COMMON LAW
OF ENGLAND AS THE RULE OF DECISION IN ITS COURTS WHEN NOT INCONSISTENT
WITH THE FEDERAL OR STATE CONSTITUTIONS OR STATE LEGISLATION.  IN THE
MIDDLE OF THE EIGHTEENTH CENTURY, ENGLISH COMMON LAW INCLUDED A BODY OF
WATER DOCTRINE KNOWN AS RIPARIAN RIGHTS.  THAT ALSO WAS THE GENERAL
MEXICAN LAW, IF IT HAD ANY LINGERING AUTHORITY THERE, BUT SEE BOQUILLAS
CATTLE CO. V. CURTIS, 213 U.S. 339, 343; GUTIERRES V. ALBUQUERQUE LAND
CO., 188 U.S. 545, 556, EXCEPT FOR A PECULIAR CONCESSION TO "PUEBLOS." 
INDEED, RIPARIAN-RIGHTS DOCTRINES PREVAILED THROUGHOUT WESTERN
CIVILIZATION. 

AS LONG AGO AS THE INSTITUTES OF JUSTINIAN, RUNNING WATERS, LIKE THE
AIR AND THE SEA, WERE RES COMMUNES - THINGS COMMON TO ALL AND PROPERTY
OF NONE.  SUCH WAS THE DOCTRINE SPREAD BY CIVIL-LAW COMMENTATORS AND
EMBODIED IN THE NAPOLEONIC CODE AND IN SPANISH LAW.  THIS CONCEPTION
PASSED INTO THE COMMON LAW.  FROM THESE SOURCES, BUT LARGELY FROM CIVIL
LAW SOURCES, THE INQUISITIVE AND POWERFUL MINDS OF CHANCELLOR KENT AND
MR. JUSTICE STORY DREW IN GENERATING THE BASIC DOCTRINES OF AMERICAN
WATER LAW. 

RIPARIAN RIGHTS DEVELOPED WHERE LANDS WERE AMPLY WATERED BY
RAINFALL.  THE PRIMARY NATURAL ASSET WAS LAND, AND THE RUN-OFF IN
STREAMS OR RIVERS WAS INCIDENTAL.  SINCE ACCESS TO FLOWING WATERS WAS
POSSIBLE ONLY OVER PRIVATE LANDS, ACCESS BECAME A RIGHT ANNEXED TO THE
SHORE.  THE LAW FOLLOWED THE PRINCIPLE OF EQUALITY WHICH REQUIRES THAT
THE CORPUS OF FLOWING WATER BECOME NO ONE'S PROPERTY AND THAT, ASIDE
FROM RATHER LIMITED USE FOR DOMESTIC AND AGRICULTURAL PURPOSES BY THOSE
ABOVE, EACH RIPARIAN OWNER HAS THE RIGHT TO HAVE THE WATER FLOW DOWN TO
HIM IN ITS NATURAL VOLUME AND CHANNELS UNIMPAIRED IN QUALITY.  THE
RIPARIAN SYSTEM DOES NOT PERMIT WATER TO BE REDUCED TO POSSESSION SO AS
TO BECOME PROPERTY WHICH MAY BE CARRIED AWAY FROM THE STREAM FOR
COMMERCIAL OR NONRIPARIAN PURPOSES.  IN WORKING OUT DETAILS OF THIS
EGALITARIAN CONCEPT, THE SEVERAL STATES MADE MANY VARIATIONS, EACH
SEEKING TO PROVIDE INCENTIVES FOR DEVELOPMENT OF ITS NATURAL
ADVANTAGES.  THESE ARE SET FORTH IN SHIVELY V. BOWLBY, 152 U.S. 1.  BUT
IT MAY BE SAID THAT WHEN CALIFORNIA ADOPTED IT THE GENERAL PHILOSOPHY
OF THE RIPARIAN-RIGHTS SYSTEM HAD BECOME COMMON LAW THROUGHOUT WHAT WAS
THEN THE UNITED STATES. 

THEN IN THE MOUNTAINS OF CALIFORNIA THERE DEVELOPED A COMBINATION OF
CIRCUMSTANCES UNPRECEDENTED IN THE LONG AND LITIGIOUS HISTORY OF
RUNNING WATER.  ITS EFFECTS ON WATER LAWS WERE ALSO UNPRECEDENTED. 
ALMOST AT THE TIME WHEN MEXICO CEDED CALIFORNIA, WITH OTHER
TERRITORIES, TO THE UNITED STATES, GOLD WAS DISCOVERED THERE AND A RUSH
OF HARDY, AGGRESSIVE AND VENTURESOME PIONEERS BEGAN.  IF THE HIGH LANDS
WERE TO YIELD THEIR TREASURE TO PROSPECTORS, WATER WAS ESSENTIAL TO
SEPARATE THE PRECIOUS FROM THE DROSS.  THE MINER'S NEED WAS MORE THAN A
CONVENIENCE - IT WAS A NECESSITY; AND NECESSITY KNOWS NO LAW.  BUT
CONDITIONS WERE FAVORABLE FOR NECESSITY TO MAKE LAW, AND IT DID - LAW
UNLIKE ANY THAT HAD BEEN KNOWN IN ANY PART OF THE WESTERN WORLD.    THE
ADVENTURERS WERE IN A LITTLE-INHABITED, UNSURVEYED, UNOWNED AND ALMOST
UNGOVERNED COUNTRY, THERETOFORE THOUGHT TO HAVE LITTLE VALUE.  IT HAD
BECOME PUBLIC DOMAIN OF THE UNITED STATES AND MINERS REGARDED WATERS AS
WELL AS LANDS SUBJECT TO PREEMPTION.  TO BE FIRST IN POSSESSION WAS TO
BE BEST IN TITLE.  PRIORITY - OF DISCOVERY, LOCATION AND APPROPRIATION
WAS THE PRIMARY SOURCE OF RIGHTS.  FORTUITOUSLY, ALONG LOWER REACHES
OF THE STREAMS THERE WERE NO RIPARIAN OWNERS TO BE INJURED AND NONE TO
CHALLENGE CUSTOMS OF THE MINERS. 

IN SEPTEMBER, 1850, CALIFORNIA WAS ADMITTED TO THE UNION AS A STATE. 
IN 1851, ITS FIRST LEGISLATURE ENACTED A CIVIL PRACTICE ACT WHICH
CONTAINED A PROVISION THAT "IN ACTIONS RESPECTING 'MINING CLAIMS,'  ...
CUSTOMS, USAGES, OR REGULATIONS, WHEN NOT IN CONFLICT WITH THE
CONSTITUTION AND LAWS OF THIS STATE, SHALL GOVERN THE DECISION OF THE
ACTION."  FN18  THE CUSTOM OF APPROPRIATING WATER THUS ACQUIRED SOME
AUTHORITY, NOTWITHSTANDING ITS CONTRADICTION OF THE COMMON LAW.  A
PRACTICE THAT WAS LAW IN THE MOUNTAINS WAS CONTRARY TO THE LAW ON THE
BOOKS.  HERE WERE PROVOCATIONS TO CONTROVERSY THAT SOON CAME TO THE
NEWLY ESTABLISHED STATE COURTS. 

IN CALIFORNIA, AS EVERYWHERE, THE LAW OF FLOWING STREAMS HAS BEEN THE
PRODUCT OF CONTENTIONS BETWEEN UPPER AND LOWER LEVELS.  THUS WHEN
MATTHEW IRWIN BUILT A DAM AND CANAL ON THE UPPER SAN JOAQUIN FOR
APPROPRIATING WATER TO SUPPLY MINERS, DOWNSTREAM SETTLER ROBERT
PHILLIPS TORE IT DOWN AND ASSERTED HIS OWN RIPARIAN RIGHT TO HAVE THE
WATER DESCEND TO HIM IN ITS NATURAL VOLUME.  FACED WITH THIS ISSUE
BETWEEN CUSTOM AND DOCTRINE, THE CALIFORNIA SUPREME COURT ESCAPED BY
OBSERVING THAT BOTH CLAIMS WERE LOCATED ON PUBLIC DOMAIN, AND THAT
NEITHER PARTY COULD SHOW PROPRIETORSHIP.  ACCORDINGLY, AS BETWEEN TWO
MERE SQUATTERS, PRIORITY OF APPROPRIATION ESTABLISHED THE BETTER
RIGHT.  BUT THE COURT GAVE WARNING THAT THIS APPROPRIATIVE RIGHT MIGHT
NOT PREVAIL AGAINST A DOWNSTREAM RIPARIAN WHO CLAIMED BY VIRTUE OF
PROPRIETORSHIP.  IRWIN V. PHILLIPS, 5 CAL. 140(1855). 

THE UNITED STATES, AS OWNER OF THE WHOLE PUBLIC DOMAIN, WAS SUCH A
PROPRIETOR, AND THE DECISION MADE APPROPRIATIONS VULNERABLE TO ITS
CHALLENGE.  IT ALSO LEFT THE PIONEERS IN POSITION OF TRESPASSERS.  THEY
WERE TAUGHT THAT THE TENURE OF THEIR PREEMPTIONS AND APPROPRIATIONS WAS
PRECARIOUS WHEN, IN 1858, THE ATTORNEY GENERAL OF THE UNITED STATES
INTERVENED IN PRIVATE LITIGATION TO CONTEND IN FEDERAL COURT THAT THE
LAND IN DISPUTE WAS PUBLIC, AND ASSERTED GENERALLY A RIGHT TO RESTRAIN
ALL MINING OPERATIONS UPON PUBLIC LAND.  HIS INTERVENTION WAS
SUCCESSFUL, AN INJUNCTION FORBADE WORKING THE MINE IN QUESTION, AND A
WRIT ISSUED UNDER THE HAND OF PRESIDENT LINCOLN DIRECTING MILITARY
AUTHORITIES TO REMOVE THE MINERS.  UNITED STATES V. PARROTT, 1 MCALL. 
(C.C.)  271. 

DEMANDS OF MINING AND WATER INTERESTS THAT THE FEDERAL GOVERNMENT
RELIEVE THEIR UNCERTAIN STATUS WERE LOUD, BUT WENT UNHEEDED AMIDST THE
PROBLEMS THAT CAME WITH CIVIL WAR.  BUT AFTER THE WAR CLOSED, THE ISSUE
WAS AGAIN PRECIPITATED BY A BILL INTRODUCED AT THE REQUEST OF THE
SECRETARY OF THE TREASURY TO HAVE THE UNITED STATES WITHDRAW ALL MINES
FROM THE MINERS, APPRAISE AND SELL THEM, RESERVING A ROYALTY AFTER
SALE.  THIS THE SECRETARY BELIEVED WOULD YIELD A LARGE REVENUE AND THE
PUBLIC LANDS WOULD HELP PAY THE PUBLIC WAR DEBT.  HOWEVER, THE PRIVATE
INTERESTS PREVAILED.  THE ACT OF JULY 26, 1866, 14 STAT. 251, R.S. SEC.
2339, DECLARED THE MINING LANDS FREE AND OPEN TO PREEMPTION AND
INCLUDED THE FOLLOWING: 

"THAT WHENEVER, BY PRIORITY OF POSSESSION, RIGHTS TO THE USE OF WATER
FOR MINING, AGRICULTURAL, MANUFACTURING, OR OTHER PURPOSES, HAVE VESTED
AND ACCRUED, AND THE SAME ARE RECOGNIZED AND ACKNOWLEDGED BY THE LOCAL
CUSTOMS, LAWS, AND THE DECISIONS OF COURTS, THE POSSESSORS AND OWNERS
OF SUCH VESTED RIGHTS SHALL BE MAINTAINED AND PROTECTED IN THE SAME;
AND THE RIGHT OF WAY FOR THE CONSTRUCTION OF DITCHES AND CANALS FOR THE
PURPOSES AFORESAID IS HEREBY ACKNOWLEDGED AND CONFIRMED:  PROVIDED,
HOWEVER, THAT WHENEVER, AFTER THE PASSAGE OF THIS ACT, ANY PERSON OR
PERSONS SHALL, IN THE CONSTRUCTION OF ANY DITCH OR CANAL, INJURE OR
DAMAGE THE POSSESSION OF ANY SETTLER ON THE PUBLIC DOMAIN, THE PARTY
COMMITTING SUCH INJURY OR DAMAGE SHALL BE LIABLE TO THE PARTY INJURED
FOR SUCH INJURY OR DAMAGE."  14 STAT. 251, 253, 43 U.S.C. SEC. 661. 

THIS SECTION WAS EXPOUNDED BY MR. JUSTICE FIELD IN JENNISON V. KIRK,
98 U.S. 453, AS FORECLOSING FURTHER PROPRIETARY OBJECTION BY THE UNITED
STATES TO APPROPRIATIONS WHICH RESTED UPON LOCAL CUSTOM.  THIS COURT
REGARDED THE ACT AS "AN UNEQUIVOCAL GRANT" FOR EXISTING DIVERSIONS OF
WATER ON THE PUBLIC LANDS.  BRODER V. WATER CO., 101 U.S. 274.  THUS
CONGRESS MADE GOOD APPROPRIATIONS IN BEING AS AGAINST A LATER PATENT TO
RIPARIAN PARCELS OF THE PUBLIC DOMAIN, AND REMOVED THE CLOUD CAST BY
ADVERSE FEDERAL CLAIMS. 

WHILE THIS WAS BEING ACCOMPLISHED, CHANGED CONDITIONS BROUGHT NEW
ADVERSARIES TO CONTEND AGAINST THE APPROPRIATORS.  THE HOMESTEAD ACT OF
1862 HAD OPENED AGRICULTURAL LANDS TO PREEMPTION AND SET UP A METHOD OF
ACQUIRING FORMAL TITLE.  12 STAT. 392.  FARMS AND RANCHES APPEARED
ALONG THE STREAMS AND WANTED THE PROTECTION THAT THE COMMON LAW WOULD
GIVE TO THEIR NATURAL FLOW.  THE ACT OF 1866, AS WE HAVE NOTED, MADE
APPROPRIATORS LIABLE FOR DAMAGE TO SETTLERS WITH WHOSE POSSESSION THEY
INTERFERED.  THE SUPREME COURT OF CALIFORNIA DECIDED THAT A RIPARIAN
OWNER CAME INTO CERTAIN RIGHTS WHICH HE COULD ASSERT AGAINST A
SUBSEQUENT APPROPRIATOR OF THE WATERS OF THE STREAM, EVEN THOUGH HE
COULD NOT AS AGAINST A PRIOR APPROPRIATION.  CRANDALL V. WOODS, 8 CAL.
136. 

IN 1886 CAME THE DECISIVE BATTLE OF LUX V. HAGGIN, 69 CAL. 255, 10 P.
674.  HAGGIN ORGANIZED AN IRRIGATION COMPANY AND CLAIMED THE RIGHT TO
APPROPRIATE THE ENTIRE FLOW OF THE KERN RIVER FOR IRRIGATION AND TO
DESTROY ANY BENEFITS FOR RIPARIAN OWNERS DOWNSTREAM.  THE COURT HELD
THAT THE DOCTRINE OF RIPARIAN RIGHTS STILL PREVAILED IN CALIFORNIA,
THAT SUCH RIGHT ATTACHED TO RIPARIAN LAND AS SOON AS IT BECAME PRIVATE
PROPERTY AND, WHILE SUBJECT TO APPROPRIATIONS MADE PRIOR TO THAT TIME,
IT IS FREE FROM ALL HOSTILE APPROPRIATIONS THEREAFTER.  THUS CALIFORNIA
SET ITSELF APART BY ITS EFFORT TO RECONCILE THE SYSTEM OF RIPARIAN
RIGHTS WITH THE SYSTEM OF APPROPRIATION, WHEREAS OTHER ARID STATES
REJECTED THE DOCTRINE OF RIPARIAN RIGHTS FORTH-RIGHTLY AND COMPLETELY. 

THE TWENTIETH CENTURY INDUCTED NEW PARTIES INTO THE OLD STRUGGLE. 
GIGANTIC ELECTRIC POWER AND IRRIGATION PROJECTS SUCCEEDED SMALLER
OPERATIONS, AND MUNICIPALITIES SOUGHT TO BY-PASS INTERVENING
AGRICULTURAL LANDS AND GO INTO THE MOUNTAINS TO APPROPRIATE THE STREAMS
FOR CITY SUPPLY.  INCREASING DEPENDENCE OF ALL BRANCHES OF THE STATE'S
ECONOMY, BOTH RURAL AND URBAN, UPON WATER CENTERED ATTENTION UPON ITS
CONSERVATION AND MAXIMUM UTILIZATION. 

THIS OBJECTIVE SEEMED FRUSTRATED BY THE RIPARIAN-RIGHTS DOCTRINE
WHEN, IN 1926, THE CALIFORNIA SUPREME COURT DECIDED HERMINGHAUS V.
SOUTHERN CALIFORNIA EDISON CO., 200 CAL. 81, 252 P. 607, AND THIS
COURT, AFTER ARGUMENT, DISMISSED CERTIORARI FOR WANT OF A FEDERAL
QUESTION, 275 U.S. 486(1927).  THAT CASE INVOLVED JUST SUCH QUESTIONS
AS WE HAVE HERE.  SOUTHERN CALIFORNIA EDISON PROJECTED A LARGE STORAGE
OF SAN JOAQUIN WATERS IN THE MOUNTAINS PRIMARILY FOR POWER GENERATION. 
PLAINTIFFS' RANCH, LIKE LANDS OF CLAIMANTS, HAD ALWAYS BEEN NATURALLY
IRRIGATED BY OVERFLOW AND THUS NATURALLY WAS PRODUCTIVE PROPERTY. 
APPROPRIATION BY THE POWER COMPANY THREATENED TO IMPAIR THIS OVERFLOW
AND DESTROY THE VALUE OF THE RANCH.  THE COMPANY WAS UNWILLING TO
COMPENSATE THE DAMAGE.  THE COURT HELD THAT COMMON LAW OF RIPARIAN
RIGHTS MUST PREVAIL AGAINST THE PROPOSED UTILIZATION AND,
NOTWITHSTANDING THE ECONOMIC WASTE INVOLVED IN PLAINTIFFS' BENEFIT,
ENJOINED THE POWER PROJECT. 

THIS RULING PRECIPITATED A MOVEMENT FOR AMENDMENT OF THE STATE
CONSTITUTION AND THUS BROUGHT TO A FOCUS A CONTEST THAT HAD GROWN IN
BITTERNESS AND INTENSITY THROUGHOUT THE ARID REGIONS AS BOTH
POPULATIONS AND PROPERTY VALUES MOUNTED.  THE DOCTRINE OF RIPARIAN
RIGHTS WAS CHARACTERIZED AS SOCIALISTIC.  WIEL, THEORIES OF WATER LAW,
27 HARV. L. REV. 530(1914).  THE STATE SUPREME COURT SAID THE LAW OF
APPROPRIATION WOULD RESULT IN MONOPOLY.  LUX V. HAGGIN, SUPRA, AT 309
10 P. AT 703.  IF THE UNECONOMIC CONSEQUENCES OF UNLIMITED RIPARIANISM
WERE REVEALED BY COURT DECISIONS, SO THE EFFECTS OF UNRESTRAINED
APPROPRIATION BECAME APPARENT WHERE THE FLOW OF RIVERS BECAME
COMPLETELY APPROPRIATED, LEAVING NO WATER FOR NEWCOMERS OR NEW
INDUSTRY.  FN19 

A JOINT COMMITTEE OF THE CALIFORNIA LEGISLATURE GAVE EXTENDED STUDY
TO THE WATER PROBLEMS OF THAT STATE AND CAREFUL CONSIDERATION OF MANY
REMEDIES.  AMONG OTHER PROPOSALS, ONE RELEVANT TO OUR QUESTION WAS TO
REVOKE OR NULLIFY ALL COMMON-LAW PROTECTION TO RIPARIAN RIGHTS AND DO
IT RETROACTIVELY AS OF THE YEAR 1850.  FN20  THE COMMITTEE REJECTED ALL
DISPOSSESSION PROPOSALS AS CONFISCATORY.  IT REPORTED AN AMENDMENT TO
THE CONSTITUTION WHICH ATTEMPTED TO SERVE THE GENERAL WELFARE OF THE
STATE BY PRESERVING AND LIMITING BOTH RIPARIAN AND APPROPRIATIVE RIGHTS
WHILE CURBING EITHER FROM BEING EXERCISED UNREASONABLY OR WASTEFULLY. 
THE AMENDMENT WAS SUBMITTED TO AND ADOPTED BY THE ELECTORS IN NOVEMBER
1928 AND NOW CONSTITUTES CALIFORNIA'S BASIC WATER LAW, TO WHICH THE
FEDERAL RECLAMATION ACT DEFERS. 

WE CANNOT ASSUME THAT THIS AMENDMENT WAS WITHOUT IMPACT UPON CLAIMS
TO WATER RIGHTS SUCH AS WE HAVE HERE, FOR, AS WE HAVE SEEN, IT WAS
PROVOKED BY THEIR ASSERTION.  NEITHER CAN WE ASSUME THAT ITS EFFECT IS
TO DEPRIVE RIPARIAN OWNERS OF BENEFITS IT DECLARES TO CONTINUE OR
UNINTENTIONALLY TO STRIKE DOWN VALUES THERE WAS A STUDIED PURPOSE TO
PRESERVE.  WE ARE ONLY CONCERNED WITH WHETHER IT CONTINUED IN CLAIMANTS
SUCH A RIGHT AS TO BE COMPENSABLE IF TAKEN.  BUT WHAT IT TOOK AWAY IS
SOME MEASURE OF WHAT IT LEFT. 

RIPARIANISM, PRESSED TO THE LIMITS OF ITS LOGIC, ENABLED ONE TO PLAY
DOG-IN-THE-MANGER.  THE SHORE PROPRIETOR COULD ENFORCE BY INJUNCTION
HIS BARE TECHNICAL RIGHT TO HAVE THE NATURAL FLOW OF THE STREAM, EVEN
IF HE WAS GETTING NO SUBSTANTIAL BENEFIT FROM IT.  THIS CANINE ELEMENT
IN THE DOCTRINE IS ABOLISHED.  "THE RIGHT TO WATER OR TO THE USE OR
FLOW OF WATER IN OR FROM ANY NATURAL STREAM OR WATER COURSE IN THIS
STATE IS AND SHALL BE LIMITED TO SUCH WATER AS SHALL BE REASONABLY
REQUIRED FOR THE BENEFICIAL USE TO BE SERVED,  ...  "  THIS LIMITATION
IS NOT TRANSGRESSED BY THE AWARDS IN QUESTION WHICH ONLY COMPENSATE FOR
THE LOSS OF ACTUAL BENEFICIAL USE.  ANY HAZARD TO CLAIMANTS' RIGHTS
LURKS IN THE FOLLOWING CLAUSE:  "AND SUCH RIGHT DOES NOT AND SHALL NOT
EXTEND TO THE WASTE OR UNREASONABLE USE OR UNREASONABLE METHOD OF USE
OR UNREASONABLE METHOD OF DIVERSION OF WATER."  SINCE RIPARIAN RIGHTS
ATTACH TO, AND ONLY TO, SO MUCH OF THE FLOW OF THE SAN JOAQUIN AS MAY
BE PUT TO BENEFICIAL USE CONSISTENTLY WITH THIS CLAUSE, CLAIMANTS CAN
ENFORCE NO USE OF WASTEFUL OR UNREASONABLE CHARACTER. 

WE ASSUME FOR PURPOSES OF THIS DECISION THAT THE PRODIGAL USE,
INSEPARABLE FROM CLAIMANTS' BENEFITS, IS SUCH THAT THE RIGHTS HERE
ASSERTED MIGHT NOT BE ENFORCED BY INJUNCTION.  BUT WITHHOLDING
EQUITABLE REMEDIES, SUCH AS SPECIFIC PERFORMANCE, MANDATORY ORDERS OR
INJUNCTIONS, DOES NOT MEAN THAT NO RIGHT EXISTS.  THERE MAY STILL BE A
RIGHT INVASION OF WHICH WOULD CALL FOR INDEMNIFICATION.  IN FACT,
ADEQUACY OF THE LATTER REMEDY IS USUALLY GROUNDS FOR DENIAL OF THE
FORMER. 

BUT THE PUBLIC WELFARE, WHICH REQUIRES CLAIMANTS TO SACRIFICE THEIR
BENEFITS TO BROADER ONES FROM A HIGHER UTILIZATION, DOES NOT
NECESSARILY REQUIRE THAT THEIR LOSS BE UNCOMPENSATED ANY MORE THAN IN
OTHER TAKINGS WHERE PRIVATE RIGHTS ARE SURRENDERED IN THE PUBLIC
INTEREST.  THE WATERS OF WHICH CLAIMANTS ARE DEPRIVED ARE TAKEN FOR
RESALE LARGELY TO OTHER PRIVATE LAND OWNERS NOT RIPARIAN TO THE RIVER
AND TO SOME LOCATED IN A DIFFERENT WATER SHED.  THEREBY PRIVATE LANDS
WILL BE MADE MORE FRUITFUL, MORE VALUABLE, AND THEIR OPERATION MORE
PROFITABLE.  THE RECLAMATION LAWS CONTEMPLATE THAT THOSE WHO SHARE
THESE ADVANTAGES SHALL, THROUGH WATER CHARGES, REIMBURSE THE GOVERNMENT
FOR ITS OUTLAY.  THIS PROJECT ANTICIPATES RECOUPMENT OF ITS COST OVER A
FORTY-YEAR PERIOD.  FN21  NO REASON APPEARS WHY THOSE WHO GET THE
WATERS SHOULD BE SPARED FROM MAKING WHOLE THOSE FROM WHOM THEY ARE
TAKEN.  PUBLIC INTEREST REQUIRES APPROPRIATION; IT DOES NOT REQUIRE
EXPROPRIATION.  WE MUST CONCLUDE THAT BY THE AMENDMENT CALIFORNIA
UNINTENTIONALLY DESTROYED AND CONFISCATED A RECOGNIZED AND ADJUDICATED
PRIVATE PROPERTY RIGHT, OR THAT IT REMAINS COMPENSABLE ALTHOUGH NO
LONGER ENFORCIBLE BY INJUNCTION.  THE RIGHT OF CLAIMANTS AT LEAST TO
COMPENSATION PRIOR TO THE AMENDMENT WAS ENTIRELY CLEAR.  INSOFAR AS ANY
CALIFORNIA COURT HAS PASSED ON THE EXACT QUESTION, THE RIGHT APPEARS TO
SURVIVE.  FN22  FIVE YEARS AFTER THE AMENDMENT, THE SUPERIOR COURT OF
CALIFORNIA FN23  SPECIFICALLY SUSTAINED IDENTICAL RIGHTS.  THE MADERA
IRRIGATION DISTRICT HAD BEEN ORGANIZED TO BUILD A DAM AT THE FRIANT
SITE AND TO DIVERT SAN JOAQUIN WATERS TO IRRIGATE ABOUT 170,000 ACRES. 
IT WAS SUED BY MILLER & LUX, INC., AND TWO OF ITS SUBSIDIARIES, AND
DECREES IN THEIR FAVOR WERE ENTERED IN 1933.  IN GENERAL, THE COURT
SUSTAINED THE MILLER & LUX RIPARIAN RIGHTS TO THE ANNUAL OVERFLOW OF
UNCONTROLLED GRASS LANDS, SOME OF WHICH NOW BELONG TO CLAIMANTS.  IT
ADJUDGED THE PROPOSED APPROPRIATION INVALID AND INEFFECTIVE AS AGAINST
THOSE RIGHTS.  IN JULY OF 1940 THE UNITED STATES ACQUIRED ALL OF
MADERA'S RIGHTS, INCLUDING PENDING APPLICATIONS TO APPROPRIATE SAN
JOAQUIN WATER UNDER STATE LAW.  THESE JUDGMENTS HAD BECOME FINAL AND
WERE OUTSTANDING ADJUDICATIONS OF THE ISSUES HERE INVOLVED AGAINST A
GRANTOR OF THE UNITED STATES.  WITHOUT CONSIDERING THE CLAIM THAT THE
1933 JUDGMENTS MAY BE RES JUDICATA, THEY ARE AT LEAST PERSUASIVE THAT
CLAIMANTS' RIGHTS TO THE BENEFIT HAD, IN THE OPINION OF CALIFORNIA
COURTS, SURVIVED THE AMENDMENT AND MUST BE RETIRED BY CONDEMNATION OR
ACQUISITION BEFORE THE FRIANT DIVERSION COULD BE VALID.    THE SUPREME
COURT OF CALIFORNIA HAS GIVEN NO ANSWER TO THIS SPECIFIC PROBLEM.  BUT
IN THE LIGHT OF ITS PRECEDENTS AND ITS CONCLUSIONS AND DISCUSSIONS OF
COLLATERAL ISSUES, ESPECIALLY IN PEABODY V. VALLEJO, 2 CAL.2D 351, 40
P.2D 486; LODI V. EAST BAY MUNICIPAL UTILITY DISTRICT, 7 CAL.2D 316, 60
P.2D 439; HILLSIDE WATER CO. V. LOS ANGELES, 10 CAL.2D 677, 76 P.2D
681; GIN S. CHOW V. SANTA BARBARA, 217 CAL. 673, 22 P.2D 5; MERIDIAN,
LTD. V. SAN FRANCISCO, 13 CAL.2D 424, 90 P.2D 537; LOS ANGELES V.
GLENDALE, 23 CAL.2D 68, 142 P.2D 289, WE CONCLUDE THAT CLAIMANTS' RIGHT
TO COMPENSATION HAS A SOUND BASIS IN CALIFORNIA LAW.  THE RECLAMATION
AUTHORITIES WERE APPARENTLY OF THAT VIEW AS THE MILLER & LUX CONTRACT
WOULD INDICATE. 

WE RECOGNIZE THAT THE RIGHT TO INUNDATION ASSERTED HERE IS UNIQUE IN
THE HISTORY OF RIPARIAN CLAIMS.  WHERE THE THIRST OF THE LAND IS
SUPPLIED BY RAINFALL, FLOODS ARE DETRIMENTS IF NOT DISASTERS, AND TO
ABATE OVERFLOWS COULD RARELY IF EVER CAUSE DAMAGE.  BUT, AS WE HAVE
POINTED OUT, UNCOMMON LOCAL CONDITIONS HAVE GIVEN RISE TO THE SINGULAR
RULE OF CALIFORNIA.  THE SAME SCARCITY WHICH MAKES IT ADVANTAGEOUS TO
TAKE THESE WATERS GIVES THEM VALUE IN THE EXTRAORDINARY CIRCUMSTANCES
IN WHICH THE CALIFORNIA COURTS HAVE RECOGNIZED A PRIVATE RIGHT TO HAVE
NO INTERCEPTION OF THEIR FLOW EXCEPT UPON COMPENSATION. 

WE THINK THE AWARDS OF THE COURT OF CLAIMS CORRECTLY APPLIED THE LAW
OF CALIFORNIA AS MADE APPLICABLE TO THESE CLAIMS BY CONGRESS. 

                         III.  OTHER ISSUES. 

THE GOVERNMENT ALSO ASSIGNS AS ERROR DETERMINATION OF THE DATE FROM
WHICH INTEREST IS TO BE ALLOWED.  THE COURT OF CLAIMS ADOPTED AS THE
DATE OF TAKING THE FIRST SUBSTANTIAL IMPOUNDMENT OF WATER WHICH
OCCURRED ON OCTOBER 20, 1941, EVEN THOUGH IT HAD NOT THEN PREVENTED
BENEFITS FROM REACHING THE PROPERTY.  THE CONTRACT BETWEEN THE
GOVERNMENT AND MILLER & LUX CONTEMPLATED THIS AS THE DATE OF TAKING,
FOR IT PUTS THE $511,350 IN ESCROW TO PROTECT THE GOVERNMENT AGAINST
SUITS "INITIATED PRIOR TO THE SIXTH ANNIVERSARY AFTER THE INITIAL
STORAGE OR DIVERSION."  SINCE THE GOVERNMENT ITSELF HAS ADOPTED THIS
DATE FOR THE EXPIRATION OF ITS PROTECTION BY CONTRACT, WE SEE NO REASON
WHY IT SHOULD CHALLENGE THE COURT OF CLAIMS FOR USE OF THE SAME DATE
FOR ACCRUAL OF THE CLAIMS.  REGARDLESS OF HOW THIS MIGHT HAVE BEEN
FIXED IN THE ABSENCE OF SUCH AN ADMINISTRATIVE DETERMINATION, WE
DECLINE TO SET ASIDE THE FINDING ON THIS SUBJECT. 

SECOND, THE GOVERNMENT CLAIMS THAT THE COURT BELOW MISCONSTRUED
RESERVATIONS IN THE DEEDS BETWEEN THE THREE CLAIMANTS AND MILLER &
LUX.  IT IS NOT APPARENT FROM THE FACTS WE HAVE RECITED THAT THE
GOVERNMENT IS THE REAL PARTY IN INTEREST AS TO THIS QUESTION, WHICH
SEEMS TO BE IN THE NATURE OF A PRIVATE CONTROVERSY BETWEEN CLAIMANTS
AND MILLER & LUX.  IN ANY EVENT, IT PRESENTS A QUESTION OF CONVEYANCING
AND REAL PROPERTY LAW PECULIAR TO THIS ONE CASE, AND DEPENDING ON LOCAL
LAW.  IT IS NOT A QUESTION OF GENERAL INTEREST, NOR IS THERE ANY
MANIFEST ERROR, AND WE ACCEPT, WITHOUT REVIEW, THE FINDING OF THE COURT
OF CLAIMS THEREON. 

FINALLY, THE GOVERNMENT PROTESTS THAT THE COURT BELOW FAILED
ADEQUATELY TO DESCRIBE THE RIGHTS TAKEN FOR WHICH IT HAS MADE AN
AWARD.  WE THINK IN VIEW OF THE SIMPLE NATURE OF THE CLAIMS, THE
EXHAUSTIVE CHARACTER OF THE FINDINGS AND THE UNDERSTANDING THE
GOVERNMENT MUST HAVE ACQUIRED IN SEVEN YEARS OF THE LITIGATIONS, THERE
IS LITTLE PROSPECT THAT IT WILL BE GRIEVOUSLY MISLED BY DEFICIENCIES,
IF ANY, THAT MAY EXIST IN THE DESCRIPTION. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  CLAIMANTS' RIGHTS ARE SUBJECT TO CERTAIN PRIOR APPROPRIATIVE AND
OTHER RIGHTS WHICH DO NOT AFFECT THE ISSUES BEFORE US. 

FN2  "(THE) ENTIRE CENTRAL VALLEY PROJECT, CALIFORNIA, HERETOFORE
AUTHORIZED AND ESTABLISHED UNDER THE PROVISIONS OF THE EMERGENCY RELIEF
APPROPRIATION ACT OF 1935(49 STAT. 115) AND THE FIRST DEFICIENCY
APPROPRIATION ACT, FISCAL YEAR 1936(49 STAT. 1622), IS HEREBY
REAUTHORIZED  ...  "  THE LATTER REFERENCE IS TO A $6,900,000
APPROPRIATION PRIMARILY FOR "FRIANT RESERVOIR AND IRRIGATION FACILITIES
THEREFROM," AS A RECLAMATION PROJECT "REIMBURSABLE UNDER THE
RECLAMATION LAW."  49 STAT. 1597, 1622. 

DEVELOPMENT OF THE WATER RESOURCES OF CENTRAL VALLEY WAS INITIATED BY
THE STATE OF CALIFORNIA.  CAL. STAT. (1933) 2643.  STUDIES WERE MADE OF
THE FEASIBILITY OF FEDERAL PARTICIPATION, AND ALTHOUGH THERE WAS NO
ACCOMPANYING APPROPRIATION, THE FIRST CONGRESSIONAL AUTHORIZATION IN
CONNECTION WITH THE PROJECT WAS CONTAINED IN THE ACT OF AUG. 30, 1935,
49 STAT. 1028, 1038.  IN THIS ACT, ON THE REPRESENTATION OF THE CHIEF
OF ENGINEERS THAT, AS TO THE FRIANT DAM PHASE, "NO BENEFITS WOULD
ACCRUE TO NAVIGATION FROM THIS DEVELOPMENT," (HOUSE DOC. NO. 191, 73D
CONG., 2D SESS. 3; AND SEE COMM. ON RIVERS AND HARBORS, H.R., DOC. NO.
35) CONGRESS LIMITED ITS APPROVAL OF FEDERAL PARTICIPATION TO PURELY
NAVIGATION WORKS IN THE NORTHERN PART OF THE VALLEY, AND AUTHORIZED A
FEDERAL EXPENDITURE OF $12,000,000 IN THE CONSTRUCTION OF KENNETT DAM
ON THE SACRAMENTO.  WHEN IT "REAUTHORIZED" THE ENTIRE PROJECT, CONGRESS
PROVIDED THAT, WHEN APPROPRIATED, THIS $12,000,000 SHOULD BE EXEMPT
FROM THE REIMBURSEMENT REQUIREMENTS OF THE RECLAMATION LAW.  ACT OF
AUG. 26, 1937, SEC. 2, 50 STAT. 844, 850. 

FN3  THE REFERENCE IS TO THE RECLAMATION ACT OF 1902, 32 STAT. 388,
AS AMENDED, 43 U.S.C. SECS. 371 ET SEQ. 

FN4  ACT OF JUNE 25, 1910, SEC. 4, 36 STAT. 835, 836, PROVIDES THAT
NO IRRIGATION PROJECT CONTEMPLATED UNDER THE RECLAMATION ACT "SHALL BE
BEGUN UNLESS AND UNTIL THE SAME SHALL HAVE BEEN RECOMMENDED BY THE
SECRETARY OF THE INTERIOR AND APPROVED BY THE DIRECT ORDER OF THE
PRESIDENT OF THE UNITED STATES."  TO THIS WAS ADDED THE REQUIREMENT
THAT THE SECRETARY "SHALL HAVE MADE A FINDING IN WRITING THAT IT IS
FEASIBLE, THAT IT IS ADAPTABLE FOR ACTUAL SETTLEMENT AND FARM HOMES,
AND THAT IT WILL PROBABLY RETURN THE COST THEREOF TO THE UNITED
STATES."  ACT OF DEC. 5, 1924, SEC. 4(B), 43 STAT. 672, 702. 

FN5  SEE N. 3, SUPRA. 

FN6  LETTER OF PRESIDENT TRUMAN TO THE SECRETARY OF THE INTERIOR,
DATED AUGUST 15, 1949, S. DOC. NO. 113, 81ST CONG., 1ST SESS. 

FN7  THE RECLAMATION ACT OF 1902, 32 STAT. 388, AS AMENDED, 43 U.S.C.
SECS. 371 ET SEQ., TO WHICH CONGRESS ADVERTED, APPLIES ONLY TO THE
SEVENTEEN WESTERN STATES.  SECTION 8 PROVIDES: 

"THAT NOTHING IN THIS ACT SHALL BE CONSTRUED AS AFFECTING OR INTENDED
TO AFFECT OR TO IN ANY WAY INTERFERE WITH THE LAWS OF ANY STATE OR
TERRITORY RELATING TO THE CONTROL, APPROPRIATION, USE, OR DISTRIBUTION
OF WATER USED IN IRRIGATION, OR ANY VESTED RIGHT ACQUIRED THEREUNDER,
AND THE SECRETARY OF THE INTERIOR, IN CARRYING OUT THE PROVISIONS OF
THIS ACT, SHALL PROCEED IN CONFORMITY WITH SUCH LAWS, AND NOTHING
HEREIN SHALL IN ANY WAY AFFECT ANY RIGHT OF ANY STATE OR OF THE FEDERAL
GOVERNMENT OR OF ANY LANDOWNER, APPROPRIATOR, OR USER OF WATER IN, TO,
OR FROM ANY INTERSTATE STREAM OR THE WATERS THEREOF:  ...  " 

TO THE EXTENT THAT IT IS APPLICABLE THIS CLEARLY LEAVES IT TO THE
STATE TO SAY WHAT RIGHTS OF AN APPROPRIATOR OR RIPARIAN OWNER MAY
SUBSIST ALONG WITH ANY FEDERAL RIGHT. 

FN8  "PART OF THE WATER SUPPLY IS TO BE OBTAINED BY THE PURCHASE OF
WATER NOW USED FOR THE IRRIGATION OF PASTURE LANDS AND THIS WILL RESULT
IN THE RETIREMENT FROM USE OF 250,000 ACRES OF SUBMARGINAL LAND  ...  "
FEASIBILITY REPORT, SECRETARY OF THE INTERIOR ICKES TO PRESIDENT
ROOSEVELT, NOV. 26, 1935.  INCLUDED IN THE SECRETARY'S ESTIMATED COSTS
OF THE PROJECT WAS AN ITEM OF $8,000,000 FOR "RIGHTS OF WAY, WATER
RIGHTS AND GENERAL EXPENSE."  IBID.  IN THE ACT OF AUG. 26, 1937, THE
SECRETARY WAS AUTHORIZED TO ACQUIRE "BY PROCEEDINGS IN EMINENT DOMAIN,
OR OTHERWISE, ALL LANDS, RIGHTS-OF-WAY, WATER RIGHTS, AND OTHER
PROPERTY NECESSARY FOR SAID PURPOSES: ...  "  50 STAT. 844, 850. 

FN9  IN ADMINISTERING THE CENTRAL VALLEY PROJECT, THE BUREAU OF
RECLAMATION SUBMITTED APPROPRIATION REQUESTS REGULARLY FROM 1938
THROUGH 1949.  ON EACH OCCASION, EXCEPTING FISCAL YEAR 1945, CONGRESS
WAS ADVISED THAT SAN JOAQUIN WATER RIGHTS WERE BEING PURCHASED, AND
EVERY APPROPRIATION REQUEST BUT THREE (FISCAL YEARS 1941, 1945, AND
1946) INCLUDED AN ITEM FOR SUCH WATER RIGHTS.  HEARINGS, SUBCOMM.  OF
THE HOUSE COMM. ON APPROPRIATIONS, INTERIOR DEPT., 75TH CONG., 1ST
SESS. 281, 282(EXCEPT AS NOTED, ALL FOLLOWING REFERENCES ARE TO
HEARINGS BEFORE THIS SUBCOMMITTEE), AND SEE H.R. REP. NO. 786, 75TH
CONG., 1ST SESS. 14; HEARINGS, 75TH CONG., 3D SESS. 349, AND SEE H.R.
REP. NO. 1855, 75TH CONG., 3D SESS. 14; HEARINGS, 76TH CONG., 1ST SESS.
421, 422, AND SEE H.R. REP. NO. 161, 76TH CONG., 1ST SESS. 16;
HEARINGS, 76TH CONG., 3D SESS. 495, AND SEE H.R. REP. NO. 1709, 76TH
CONG., 3D SESS. 14; HEARINGS, 77TH CONG., 1ST SESS. 741; HEARINGS, 77TH
CONG., 2D SESS. 434-439; HEARINGS, PT. 1, 78TH CONG., 1ST SESS. 1174;
HEARINGS, PT. 1, 79TH CONG., 1ST SESS. 1200; HEARINGS, PT. 2, 79TH
CONG., 2D SESS. 315-317; HEARINGS, PT. 3, 80TH CONG., 1ST SESS. 749
752; HEARINGS, PT. 3, 80TH CONG., 2D SESS. 1214, 1279-1280, AND SEE
HEARINGS, SUBCOMM.  OF THE SENATE COMM. ON APPROPRIATIONS, INTERIOR
DEPT., 80TH CONG., 2D SESS. 921-924; 50 STAT. 564, 597; 52 STAT. 291,
324; 53 STAT. 685, 719; 55 STAT. 303, 336; 56 STAT. 506, 536; 57 STAT.
451, 476; 60 STAT. 348, 367; 61 STAT. 460, 475; 62 STAT. 1112, 1129. 

FN10  SEE FEASIBILITY REPORT, SECRETARY OF THE INTERIOR ICKES TO
PRESIDENT ROOSEVELT, NOV. 26, 1935, RECOMMENDING "THE APPROVAL OF THE
CENTRAL VALLEY DEVELOPMENT AS A FEDERAL RECLAMATION PROJECT," AND
POINTING OUT THAT THE AREA IS SERVED BY EXCELLENT TRANSPORTATION
FACILITIES, THAT MUCH OF ITS PRODUCE IS SHIPPED TO EASTERN MARKETS, AND
THAT IF DECREASING PRODUCTIVITY AS A RESULT OF ACUTE SHORTAGE OF WATER
FOR IRRIGATION NEEDS WERE TO CONTINUE, "A SHARE OF THE LOSS WILL BE
SUFFERED BY PERSONS NOT RESIDING IN THE AREAS DIRECTLY AFFECTED." 

FN11  THIS APPROACH MAKES IT UNNECESSARY TO CONSIDER THE RELEVANCY OF
UNITED STATES V. HOTEL CO., 329 U.S. 585; UNITED STATES V. GOLTRA, 312
U.S. 203; TILLSON V. UNITED STATES, 100 U.S. 43, ON THE QUESTION OF
CLAIMANTS' RIGHT TO INTEREST.  UNLESS WE CHOOSE TO DISTURB THESE CASES
WE COULD NOT LIMIT OURSELVES TO SAYING THAT BY INVOCATION OF THE
RECLAMATION ACT OF 1902 CONGRESS SIMPLY ASSUMED LIABILITY FOR
CLAIMANTS' WATER RIGHTS. 

FN12  SEE N. 8, SUPRA. 

FN13  SEE N. 9, SUPRA. 

FN14  "IN CONDUCTING IRRIGATION INVESTIGATIONS AND CONSTRUCTING AND
OPERATING PROJECTS THROUGHOUT THE WEST, THE BUREAU OF RECLAMATION FULLY
RECOGNIZES AND RESPECTS EXISTING WATER RIGHTS ESTABLISHED UNDER STATE
LAW.  NOT ONLY IS THIS A SPECIFIC REQUIREMENT OF THE RECLAMATION ACT
UNDER WHICH THE BUREAU OPERATES, BUT SUCH A COURSE IS THE ONLY FAIR AND
JUST METHOD OF PROCEDURE.  THIS BASIN REPORT ON THE CENTRAL VALLEY IS
PREDICATED ON SUCH A POLICY."  REPORT OF REGIONAL DIRECTOR, REGION II,
BUREAU OF RECLAMATION, DEC. 1, 1947, APPROVED BY THE SECRETARY OF THE
INTERIOR, JULY 29, 1948, S. DOC. NO. 113, 81ST CONG., 1ST SESS. 39. 

FN15  AFTER CONSULTATION WITH THE COMMISSIONER OF RECLAMATION AND THE
SECRETARY OF THE INTERIOR, THE REGIONAL DIRECTOR, REGION II, BUREAU OF
RECLAMATION, REPLIED TO QUESTIONS CONCERNING THE CENTRAL VALLEY PROJECT
SUBMITTED BY THE IRRIGATION DISTRICTS ASSOCIATION OF CALIFORNIA: 

"THE BUREAU OF RECLAMATION DOES RECOGNIZE AND RESPECT EXISTING WATER
RIGHTS WHICH HAVE BEEN INITIATED AND PERFECTED OR WHICH ARE IN THE
STATE OF BEING PERFECTED UNDER STATE LAWS.  THE BUREAU OF RECLAMATION
HAS BEEN REQUIRED TO DO SO BY SECTION 8 OF THE RECLAMATION ACT OF 1902
EVER SINCE THE INCEPTION OF THE RECLAMATION PROGRAM ADMINISTERED BY THE
BUREAU OF RECLAMATION.  THE BUREAU OF RECLAMATION HAS NEVER PROPOSED
MODIFICATION OF THAT REQUIREMENT OF FEDERAL LAW; AND ON THE CONTRARY,
THE BUREAU OF RECLAMATION AND THE SECRETARY OF THE INTERIOR HAVE
CONSISTENTLY, THROUGH THE 42 YEARS SINCE THE 1902 ACT, BEEN ZEALOUS IN
MAINTAINING COMPLIANCE WITH SECTION 8 OF THE 1902 ACT.  THEY ARE PROUD
OF THE HISTORIC FACT THAT THE RECLAMATION PROGRAM INCLUDES AS ONE OF
ITS BASIC TENETS THAT THE IRRIGATION DEVELOPMENT IN THE WEST BY THE
FEDERAL GOVERNMENT UNDER THE FEDERAL RECLAMATION LAWS IS CARRIED
FORWARD IN CONFORMITY WITH STATE WATER LAWS.  AMPLE DEMONSTRATION OF
THE EFFECT OF THIS LAW AND POLICY OF ADMINISTRATION, IN ACTION, HAS
BEEN GIVEN IN CONNECTION WITH THE CENTRAL VALLEY PROJECT.  WATER
FILINGS MADE BY THE STATE HAVE BEEN OBTAINED BY THE BUREAU OF
RECLAMATION BY ASSIGNMENT, AND VESTED WATER RIGHTS HAVE BEEN ACQUIRED
BY THE UNITED STATES BY PURCHASE, THE CONSIDERATIONS AMOUNTING TO
MILLIONS OF DOLLARS AND BEING AGREEABLE TO THE VENDORS - ALL IN
CONFORMITY WITH STATE LAWS.  FURTHER, OTHER WATER RIGHTS OF LANDOWNERS
WHICH WILL OR MAY BE AFFECTED BY THE OPERATIONS OF THE PROJECT ARE
BEING ANALYZED AND APPROPRIATE ADJUSTMENTS, GIVING FULL RECOGNITION OF
THE RIGHTS OF THE LANDOWNERS, ARE IN THE PROCESS OF BEING WORKED OUT." 

FN16  THAT AMENDMENT ADDED ART. XIV, SEC. 3 OF THE STATE
CONSTITUTION, WHICH PROVIDES: 

"IT IS HEREBY DECLARED THAT BECAUSE OF THE CONDITIONS PREVAILING IN
THIS STATE THE GENERAL WELFARE REQUIRES THAT THE WATER RESOURCES OF THE
STATE BE PUT TO BENEFICIAL USE TO THE FULLEST EXTENT OF WHICH THEY ARE
CAPABLE, AND THAT THE WASTE OR UNREASONABLE USE OR UNREASONABLE METHOD
OF USE OF WATER BE PREVENTED, AND THAT THE CONSERVATION OF SUCH WATERS
IS TO BE EXERCISED WITH A VIEW TO THE REASONABLE AND BENEFICIAL USE
THEREOF IN THE INTEREST OF THE PEOPLE AND FOR THE PUBLIC WELFARE.  THE
RIGHT TO WATER OR TO THE USE OR FLOW OF WATER IN OR FROM ANY NATURAL
STREAM OR WATER COURSE IN THIS STATE IS AND SHALL BE LIMITED TO SUCH
WATER AS SHALL BE REASONABLY REQUIRED FOR THE BENEFICIAL USE TO BE
SERVED, AND SUCH RIGHT DOES NOT AND SHALL NOT EXTEND TO THE WASTE OR
UNREASONABLE USE OR UNREASONABLE METHOD OF USE OR UNREASONABLE METHOD
OF DIVERSION OF WATER.  RIPARIAN RIGHTS IN A STREAM OR WATER COURSE
ATTACH TO, BUT TO NO MORE THAN SO MUCH OF THE FLOW THEREOF AS MAY BE
REQUIRED OR USED CONSISTENTLY WITH THIS SECTION, FOR THE PURPOSES FOR
WHICH SUCH LANDS ARE, OR MAY BE MADE ADAPTABLE, IN VIEW OF SUCH
REASONABLE AND BENEFICIAL USES; PROVIDED, HOWEVER, THAT NOTHING HEREIN
CONTAINED SHALL BE CONSTRUED AS DEPRIVING ANY RIPARIAN OWNER OF THE
REASONABLE USE OF WATER OF THE STREAM TO WHICH HIS LAND IS RIPARIAN
UNDER REASONABLE METHODS OF DIVERSION AND USE, OR OF DEPRIVING ANY
APPROPRIATOR OF WATER TO WHICH HE IS LAWFULLY ENTITLED.  THIS SECTION
SHALL BE SELF-EXECUTING, AND THE LEGISLATURE MAY ALSO ENACT LAWS IN THE
FURTHERANCE OF THE POLICY IN THIS SECTION CONTAINED." 

FN17  THE HISTORICAL BACKGROUND OF BOTH RIPARIAN AND APPROPRIATIVE
RIGHTS, THE RELEVANT LOCAL HISTORY AND THE LEGISLATIVE HISTORY OF THE
ACT OF 1866 ARE COMPREHENSIBLY SET FORTH IN 1 WIEL, WATER RIGHTS IN THE
WESTERN STATES SECS. 66 TO 264(3D ED., 1911), AND IN THE FOLLOWING
ARTICLES BY THE SAME AUTHOR:  PUBLIC POLICY IN WATER DECISIONS, 1
CALIF. L. REV. 11; COMPARATIVE WATER LAW, 6 CALIF. L. REV. 245, 342;
POLITICAL WATER RIGHTS, 10 CALIF. L. REV. 111; THEORIES OF WATER LAW,
27 HARV. L. REV. 530.  SEE ALSO POMEROY ON WATER RIGHTS, CC. 2,
3(1893); 3 FARNHAM, WATERS AND WATER RIGHTS, C. 22; TOELLE, PROSPECTIVE
EFFECT ON WESTERN WATER LAW OF PROPOSED FEDERAL MISSOURI VALLEY AND
COLUMBIA VALLEY AUTHORITIES, 20 TEMPLE L.Q. 425; WALTON, ORIGIN AND
GROWTH OF WESTERN IRRIGATION LAW, 21 ILL. L. REV. 126; BANNISTER,
FEDERAL DISPOSITION OF WATERS IN THE PRIORITY STATES, 28 HARV. L. REV.
270; LASKY, FROM PRIOR APPROPRIATION TO ECONOMIC DISTRIBUTION OF WATER
BY THE STATE - VIA IRRIGATION ADMINISTRATION, 1 ROCKY MT. L. REV. 161. 

FN18  CIVIL PRACTICE ACT OF APRIL 29, 1851, SEC. 621.  IN SUBSTANCE
NOW SEC. 748, CODE CIVIL PROCEDURE. 

FN19  COURT OPINIONS INDICATE THAT ALL THE WATERS OF THE SOUTH PLATTE
RIVER HAVE BEEN APPROPRIATED AND THE ENTIRE NORMAL FLOW OF THE RIVER IS
INADEQUATE TO SUPPLY THE PRIORITIES FOR IRRIGATION PURPOSES ALREADY
DECREED FROM IT.  COMSTOCK V. RAMSEY, 55 COLO. 244, 133 P. 1107.  THE
ENTIRE BOISE RIVER IN IDAHO HAS BEEN APPROPRIATED.  UNITED STATES V.
BURLEY, 172 F. 615.  MANY COLORADO STREAMS ARE ALREADY
OVERAPPROPRIATED.  HUMPHREYS T. CO. V. FRANK, 46 COLO. 524, 105 P.
1093.  SEE WIEL, THEORIES OF WATER LAW, 27 HARV. L. REV. 530. 

FN20  THE LEGISLATIVE HISTORY OF THE AMENDMENT IS SET FORTH IN WIEL,
THE PENDING WATER AMENDMENT, 16 CALIF. L. REV. 169 AND 257, AND SEE
WIEL, EUROPEANIZING THE STATE CONSTITUTION - THE WATER AND POWER
AMENDMENT, 12 CALIF. L. REV. 454; NOTE, 1 STANFORD L. REV. 172. 

FN21  THE FEASIBILITY REPORT OF SECRETARY ICKES, SUPRA, N. 8,
REFERRING TO FRIANT DAM, FRIANT-KERN CANAL AND MADERA CANAL, AMONG
OTHERS INCLUDED, SAYS, "THE NEXT DECLARATION REQUIRED IS THAT THE COST
OF CONSTRUCTION WILL PROBABLY BE RETURNED TO THE FEDERAL GOVERNMENT. 
THIS IS INTERPRETED TO MEAN THAT IT WILL BE RETURNED WITHIN FORTY YEARS
FROM THE TIME THE SECRETARY ISSUES PUBLIC NOTICE THAT WATER IS
AVAILABLE FROM THE PROJECT WORKS.  THE ESTIMATED COST OF CONSTRUCTION
IS $170,000,000 AND THE ANNUAL COST, INCLUDING REPAYMENT OF ALL OTHER
CHARGES IS $7,500,000.  IT IS ESTIMATED THAT ANNUAL REVENUES FROM THE
SALE OF WATER AND OF ELECTRIC POWER WILL BE SUFFICIENT TO COVER THESE
CHARGES.  THE FAVORABLE CONDITIONS HERETOFORE RECITED JUSTIFY THE
BELIEF THAT THE PROJECT WILL RETURN ITS COST." 

FN22  UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA,
RENDERED A DECISION ON APRIL 12, 1950, IN RANK V. KRUG, 90 F.SUPP. 
773, CONSISTENT WITH THE VIEWS WE TAKE OF THE ISSUES HERE INVOLVED. 

FN23  SACRAMENTO & SAN JOAQUIN DRAINAGE DISTRICT CO. V. SUPERIOR
COURT, 196 CAL. 414, 432, 238 P. 687, 694.  THIS IS NOT A LOCAL COURT
BUT A PART OF A SYSTEM OF STATE COURTS.  IT SEEMS TO FALL WITHIN THE
RULE OF FIDELITY TRUST CO. V. FIELD, 311 U.S. 169, AS A COURT WHOSE
DECREES ARE REGARDED AS DETERMINATION OF STATE LAW RATHER THAN WITHIN
THE RULE OF KING V. ORDER OF TRAVELERS, 333 U.S. 153. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND OPINION EXCEPT THAT HE
AGREES WITH MR. JUSTICE DOUGLAS THAT INTEREST SHOULD NOT BE ALLOWED. 

MR. JUSTICE DOUGLAS, CONCURRING IN PART AND DISSENTING IN PART. 

I THINK IT IS CLEAR UNDER OUR DECISIONS THAT RESPONDENTS ARE NOT
ENTITLED TO COMPENSATION AS A MATTER OF CONSTITUTIONAL RIGHT.  FOR WE
HAVE REPEATEDLY HELD THAT THERE ARE NO PRIVATE PROPERTY RIGHTS IN THE
WATERS OF A NAVIGABLE RIVER.  SEE UNITED STATES V. APPALACHIAN POWER
CO., 311 U.S. 377, 424; UNITED STATES V. COMMODORE PARK, 324 U.S. 386,
390-391; UNITED STATES V. WILLOW RIVER CO., 324 U.S. 499, 510.  THAT IS
TRUE WHETHER THE RIGHTS OF RIPARIAN OWNERS OR THE RIGHTS OF
APPROPRIATORS ARE INVOLVED.  SEE GIBSON V. UNITED STATES, 166 U.S. 269;
UNITED STATES V. RIO GRANDE IRRIGATION CO., 174 U.S. 690.  AS THE
APPALACHIAN POWER CASE MAKES PLAIN (311 U.S. 424, 427), THE EXISTENCE
OF PROPERTY RIGHTS IN THE WATERS OF A NAVIGABLE STREAM ARE NOT
DEPENDENT UPON WHETHER THE UNITED STATES IS CHANGING THE FLOW OF THE
RIVER IN AID OF NAVIGATION OR FOR SOME OTHER PURPOSE. 

NOR CAN RESPONDENTS' RIGHTS TO RECOVER BE FOUNDED ON THE ACTS WHICH
APPROPRIATED MONEY FOR THE CENTRAL VALLEY PROJECT.  THEY CREATED NO
INDEPENDENT RIGHT IN ANY CLAIMANT AGAINST THE UNITED STATES.  THAT IS
THE TEACHING OF JUSTICE BRANDEIS' OPINION FOR THE COURT IN MITCHELL V.
UNITED STATES, 267 U.S. 341, 345-46.  THE APPROPRIATION IN THAT CASE
WAS FOR, INTER ALIA, "LOSSES TO PERSONS, FIRMS, AND CORPORATIONS,
RESULTING FROM THE PROCUREMENT OF THE LAND."  IN DENYING A CLAIM FOR
THE LOSS OF A BUSINESS RESULTING FROM A TAKING OF LAND, THE COURT
SAID: 

"BY INCLUDING IN THE APPROPRIATION CLAUSE THE WORDS 'LOSSES TO
PERSONS, FIRMS, AND CORPORATIONS, RESULTING FROM THE PROCUREMENT OF THE
LAND FOR THIS PURPOSE,' CONGRESS DOUBTLESS AUTHORIZED THE SECRETARY OF
WAR TO TAKE INTO CONSIDERATION LOSSES DUE TO THE DESTRUCTION OF THE
BUSINESS, WHERE HE PURCHASED LAND UPON AGREEMENT WITH THE OWNERS.  BUT
IT DOES NOT FOLLOW THAT, IN THE ABSENCE OF AN AGREEMENT, THE PLAINTIFFS
CAN COMPEL PAYMENT FOR SUCH LOSSES.  TO RECOVER, THEY MUST SHOW SOME
STATUTORY RIGHT CONFERRED." 

THE SAME IS TRUE IN THIS CASE.  FOR EXAMPLE, SEC. 2 OF THE RIVERS AND
HARBORS ACT OF AUGUST 26, 1937, 50 STAT. 844, 850, PROVIDED THAT THE
SECRETARY OF THE INTERIOR "MAY ACQUIRE BY PROCEEDINGS IN EMINENT
DOMAIN, OR OTHERWISE, ALL LANDS, RIGHTS-OF-WAY, WATER RIGHTS, AND OTHER
PROPERTY NECESSARY FOR SAID PURPOSES."  AUTHORITY TO PAY FOR WATER
RIGHTS IS, OF COURSE, NOT TO BE CONSTRUED TO MEAN AN ASSUMPTION OF
LIABILITY TO PAY. 

CONGRESS, TO BE SURE, HAS FULL POWER TO RELINQUISH ITS IMMUNITY FROM
SUIT FOR THE TAKING.  SEE FORD & SON V. LITTLE FALLS CO., 280 U.S. 369,
377; UNITED STATES V. REALTY CO., 163 U.S. 427, 440.  AND I THINK IT
HAS DONE SO - NOT BY THE ACTS APPROPRIATING FUNDS FOR THE PROJECT BUT
BY THE RECLAMATION ACT OF 1902.  32 STAT. 388, 43 U.S.C. SEC. 371 ET
SEQ. 

THE ACT APPLIES SOLELY TO THE 17 WESTERN STATES.  IT DEALS WITH
RECLAMATION PROJECTS, AS ITS TITLE INDICATES.  THE CENTRAL VALLEY
PROJECT IS SUCH A PROJECT. 

PURCHASE ANY RIGHTS NECESSARY TO THE CARRYING OUT OF THE ACT.  FN1

"THAT NOTHING IN THIS ACT SHALL BE CONSTRUED AS AFFECTING OR INTENDED
TO AFFECT OR TO IN ANY WAY INTERFERE WITH THE LAWS OF ANY STATE OR
TERRITORY RELATING TO THE CONTROL, APPROPRIATION, USE, OR DISTRIBUTION
OF WATER USED IN IRRIGATION, OR ANY VESTED RIGHT ACQUIRED THEREUNDER,
AND THE SECRETARY OF THE INTERIOR, IN CARRYING OUT THE PROVISIONS OF
THIS ACT, SHALL PROCEED IN CONFORMITY WITH SUCH LAWS, AND NOTHING
HEREIN SHALL IN ANY WAY AFFECT ANY RIGHT OF ANY STATE OR OF THE FEDERAL
GOVERNMENT OR OF ANY LANDOWNER, APPROPRIATOR, OR USER OF WATER IN, TO,
OR FROM ANY INTERSTATE STREAM OR THE WATERS THEREOF:  PROVIDED, THAT
THE RIGHT TO THE USE OF WATER ACQUIRED UNDER THE PROVISIONS OF THIS ACT
SHALL BE APPURTENANT TO THE LAND IRRIGATED, AND BENEFICIAL USE SHALL BE
THE BASIS, THE MEASURE, AND THE LIMIT OF THE RIGHT." 

LAWS RELATING TO IRRIGATION, IN "ANY INTERSTATE STREAM OR THE WATERS
THEREOF."  WHEN SUCH RIGHTS WILL BE DESTROYED OR INTERFERED WITH BY A
PROPOSED RECLAMATION PROJECT, AUTHORITY IS FOUND TO ACQUIRE THEM UNDER
SEC. 7.  THE CUSTOMARY METHOD OF ACQUIRING THE WATER RIGHTS IS TO FILE
A NOTICE OF APPROPRIATION PURSUANT TO STATE LAW. 

PETITIONER SEEKS TO AVOID THE FORCE OF THESE SECTIONS BY ASSERTING
THAT THEY ARE NOT APPLICABLE TO LANDS RIPARIAN TO NAVIGABLE STREAMS. 

THE LEGISLATIVE HISTORY OF THE ACT IS NOT PARTICULARLY INSTRUCTIVE. 
THE HOUSE COMMITTEE REPORTING THE BILL SAID THAT "SECTION 8 RECOGNIZES
STATE CONTROL OVER WATERS OF NONNAVIGABLE STREAMS SUCH AS ARE USED IN
IRRIGATION."  H.R. REP. NO. 1468, 57TH CONG., 1ST SESS., P. 6.  THERE
IS NO OTHER EVIDENCE, HOWEVER, THAT THE FRAMERS THOUGHT THE SCOPE OF
THE BILL SO NARROW.  WHEN THE ACT WAS RECOMMENDED IN 1901, PRESIDENT
THEODORE ROOSEVELT WAS CAREFUL TO SUGGEST THAT THERE SHOULD BE
PROTECTION FOR "VESTED RIGHTS" AND RESPECT FOR STATE LAWS.  35 CONG.
REC. 6677, 6775-6776.  THERE ARE STATEMENTS TO THE SAME EFFECT BY
REPRESENTATIVE MONDELL, WHO WAS IN CHARGE OF THE BILL IN THE HOUSE (35
CONG. REC. 6678-6679) AND BY SENATOR CLARK OF WYOMING (35 CONG. REC.
2222).  THE CLAUSE IN SEC. 8 ACCORDING PROTECTION TO "ANY VESTED RIGHT
ACQUIRED" UNDER STATE LAWS WAS ADDED TO THE BILL BY COMMITTEE AMENDMENT
ON THE FLOOR OF THE HOUSE.  35 CONG. REC. 6762. 

WHETHER SEC. 8 AUTHORIZES PAYMENT FOR WATER RIGHTS RIPARIAN TO
NAVIGABLE WATERS HAS NOT BEEN AUTHORITATIVELY DETERMINED BY THE
COURTS.  FN2  THIS COURT HAS RECOGNIZED, HOWEVER, THAT ADMINISTRATION
OF THE ACT IS TO BE IN CONFORMITY TO STATE LAWS.  SEE POWER CO. V.
CEMENT CO., 295 U.S. 142, 164.  NEBRASKA V. WYOMING, 325 U.S. 589,
614.  THAT WAS THE ASSUMPTION IN MASON CO. V. TAX COMMISSION, 302 U.S.
186, A CASE INVOLVING THE NAVIGABLE WATERS OF THE COLUMBIA RIVER. 

WHATEVER DOUBTS THERE MAY BE ARE FOR ME DISPELLED BY THE
ADMINISTRATIVE PRACTICE UNDER THE ACT, AS SUMMARIZED BY THE
COMMISSIONER OF RECLAMATION IN A MEMORANDUM DATED APRIL 19, 1950. 
REPORTS FROM THE SEVEN REGIONAL COUNSEL AND A REVIEW OF THE FILES IN
THE BUREAU OF RECLAMATION FORMED THE BASIS FOR THE MEMORANDUM. 

THE COMMISSIONER CONCLUDED THAT IT HAS BEEN THE ALMOST INVARIABLE
PRACTICE OF THE BUREAU TO FILE NOTICES OF APPROPRIATIONS UNDER STATE
LAW WITHOUT REGARD TO WHETHER THE STREAM INVOLVED WAS NAVIGABLE OR
NONNAVIGABLE N3.  SUCH FILINGS WERE MADE PURSUANT TO STATE LAW ON WATER
RIGHTS RIPARIAN TO AT LEAST 13 NAVIGABLE OR PROBABLY NAVIGABLE RIVERS. 
THIS ADMINISTRATIVE PRACTICE IS TOO CLEAR TO BE CONTRADICTED BY THE
BUREAU OF RECLAMATION DOCUMENTS CITED BY PETITIONER.  FN4 MOREOVER, THE
COMMISSIONER OF RECLAMATION HAS DRAWN OUR ATTENTION TO RECENT PUBLIC
STATEMENTS BY DEPARTMENT OF INTERIOR OFFICERS CONFIRMING THIS
PRACTICE. 

THIS COURT HAS OFTEN EMPHASIZED THAT WEIGHT IS TO BE GIVEN TO THE
INTERPRETATION OF A STATUTE MADE BY THE ADMINISTERING AGENCY.  SEE
UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 549; LABOR
BOARD V. HEARST PUBLICATIONS, 322 U.S. 111, 130.  THIS LONG COURSE OF
PRACTICE BY THE BUREAU OF RECLAMATION RESOLVES ANY DOUBTS AND
AMBIGUITIES THAT ARISE FROM THE HISTORY AND WORDING OF THE STATUTE. 

I CONCLUDE THAT CONGRESS BY SEC. 8 OF THE RECLAMATION ACT AGREED TO
PAY (THOUGH NOT REQUIRED TO DO SO BY THE CONSTITUTION) FOR WATER RIGHTS
ACQUIRED UNDER STATE LAW IN NAVIGABLE AS WELL AS NONNAVIGABLE STREAMS. 
AS THE COURT HOLDS, RESPONDENTS UNDER CALIFORNIA LAW HAVE A WATER
RIGHT.  SECTION 8 THEREFORE RECOGNIZES IT AS THE BASIS FOR PAYMENT IN
CONNECTION WITH THIS FEDERAL PROJECT. 

I DO NOT THINK THE CLAIMANTS ARE ENTITLED TO INTEREST.  WHEN THE
GOVERNMENT ASSUMES A LIABILITY BY STATUTE, INTEREST IS NOT ALLOWABLE
UNLESS SPECIFIC PROVISION IS MADE FOR IT.  UNITED STATES V. GOLTRA, 312
U.S. 203, 207; UNITED STATES V. HOTEL CO., 329 U.S. 585, 588.  A
DIFFERENT RULE OBTAINS WHEN THE UNITED STATES TAKES PROPERTY PROTECTED
BY THE FIFTH AMENDMENT.  SEABOARD AIR LINE R. CO. V. UNITED STATES, 261
U.S. 299, 306.  THE PRESENT WATER RIGHTS, THOUGH NOT PROTECTED BY THE
FIFTH AMENDMENT, ARE ONES WHICH THE UNITED STATES HAS AGREED TO PAY FOR
UNDER SECS. 7 AND 8 OF THE RECLAMATION ACT.  SECTIONS 7 AND 8 CONTAIN
NO PROVISION FOR THE PAYMENT OF INTEREST.  THE ACT REFERS TO STATE LAW
TO DETERMINE WHETHER A WATER RIGHT EXISTS, NOT TO ASCERTAIN THE MEASURE
OF DAMAGES FOR THE TAKING. 

FN1  SECTION 7 PROVIDES:  "THAT WHERE IN CARRYING OUT THE PROVISIONS
OF THIS ACT IT BECOMES NECESSARY TO ACQUIRE ANY RIGHTS OR PROPERTY, THE
SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO ACQUIRE THE SAME FOR
THE UNITED STATES BY PURCHASE OR BY CONDEMNATION UNDER JUDICIAL
PROCESS, AND TO PAY FROM THE RECLAMATION FUND THE SUMS WHICH MAY BE
NEEDED FOR THAT PURPOSE, AND IT SHALL BE THE DUTY OF THE ATTORNEY
GENERAL OF THE UNITED STATES UPON EVERY APPLICATION OF THE SECRETARY OF
THE INTERIOR, UNDER THIS ACT, TO CAUSE PROCEEDINGS TO BE COMMENCED FOR
CONDEMNATION WITHIN THIRTY DAYS FROM THE RECEIPT OF THE APPLICATION AT
THE DEPARTMENT OF JUSTICE."    FN2  A UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF CALIFORNIA HAS RECENTLY HELD, HOWEVER, THAT
SEC. 8 OF THE ACT PROVIDES FOR THE PURCHASE OF WATER RIGHTS TAKEN IN
CONNECTION WITH THE CENTRAL VALLEY PROJECT.  RANK V. KRUG, 90 F.SUPP. 
773(APRIL 12, 1950). 

FN3  THE MEMORANDUM RECORDS THE FOLLOWING DATA:  REGION 1(WASHINGTON,
IDAHO, NORTHERN OREGON, WESTERN MONTANA) REPORTED THE FILING OF
APPROPRIATIONS UNDER STATE LAW IN 12 PROJECTS INVOLVING NAVIGABLE
RIVERS.  IN REGION 2(NORTHERN CALIFORNIA, OREGON), SEC. 8 HAS BEEN
CONSTRUED TO INCLUDE RIGHTS IN NAVIGABLE AS WELL AS NONNAVIGABLE
WATERS, ALTHOUGH THE EXACT NUMBER OF FILINGS WAS NOT REVEALED. 
ALTHOUGH SOME FILINGS FOR APPROPRIATION UNDER STATE LAW HAVE BEEN MADE
IN REGION 3(SOUTHERN CALIFORNIA, ARIZONA, SOUTHERN NEVADA), THE LOWER
COLORADO RIVER PROJECTS ARE THE SINGLE EXCEPTION TO THE OTHERWISE
CONSISTENT ADMINISTRATIVE PRACTICE.  IN REGION 4(NORTHERN NEVADA, UTAH,
WESTERN WYOMING, WESTERN COLORADO), WATER RIGHTS ON AT LEAST TWO
NAVIGABLE RIVERS HAVE BEEN ACQUIRED PURSUANT TO STATE LAW.  NO OCCASION
HAS YET ARISEN IN REGION 5(TEXAS, NEW MEXICO, OKLAHOMA, SOUTHERN
COLORADO) MAKING NECESSARY THE ACQUISITION OF WATER RIGHTS ON NAVIGABLE
STREAMS.  IN THE ONLY INSTANCE IN REGION 6(EASTERN MONTANA, NORTHERN
WYOMING, NORTH AND SOUTH DAKOTA) WHERE A FEDERAL PROJECT INTERFERED
WITH PRIVATE WATER RIGHTS ON A NAVIGABLE RIVER, THE RIGHTS WERE PAID
FOR BY THE UNITED STATES.  WATER RIGHTS ON THREE APPARENTLY NAVIGABLE
RIVERS IN REGION 7(EASTERN COLORADO, SOUTHERN WYOMING, NEBRASKA,
KANSAS) WERE ACQUIRED BY THE UNITED STATES IN ACCORDANCE WITH STATE
LAWS. 

THE COMMISSIONER NOTES THAT THERE ARE SPECIAL CIRCUMSTANCES
CONCERNING THE LOWER COLORADO RIVER PROJECTS WHICH EXPLAIN THE SINGLE
EXCEPTION.  THE ACT AUTHORIZING HOOVER DAM REQUIRED THAT IT BE USED
FIRST FOR "RIVER REGULATION, IMPROVEMENT OF NAVIGATION, AND FLOOD
CONTROL," AND ONLY THEREAFTER FOR IRRIGATION.  45 STAT. 1061. 
MOREOVER, THE COLORADO RIVER COMPACT ASSURES AN ADEQUATE SUPPLY OF
WATER FOR THE PROJECT.  THE COMMISSIONER POINTS OUT THAT WHILE NO
RIGHTS HAVE BEEN ACQUIRED ON THE LOWER COLORADO UNDER SEC. 7, "A SEARCH
OF BUREAU RECORDS FAILS TO DISCLOSE ANY INSTANCE ON THAT RIVER IN WHICH
THE BUREAU IN CONNECTION WITH ANY OF ITS PROJECTS FAILED OR REFUSED TO
RECOGNIZE OR MAKE COMPENSATION FOR WATER RIGHTS VALIDLY ESTABLISHED
UNDER STATE LAW." 

ANOTHER POSSIBLE EXCEPTION IS THE DECISION OF THE DEPARTMENT OF
INTERIOR NOT TO PURCHASE A POWER RIGHT ON THE SPOKANE RIVER ON THE
GROUND, AMONG OTHERS, THAT THE RIGHT AFFECTED NAVIGABLE WATERS.  YET,
IN THE PAST, THE BUREAU INSTITUTED APPROPRIATIONS ON THAT RIVER ALSO. 

FN4  THE UNPUBLISHED MANUAL OF THE BUREAU OF RECLAMATION, PRINTED FOR
THE GUIDANCE OF ITS EMPLOYEES, SUPPORTS PETITIONER'S POSITION IN ITS
1913, 1917, AND 1927 EDITIONS, AND TO A LESSER EXTENT IN ITS 1938
EDITION.  A NEW MANUAL IS NOW IN PREPARATION.  THESE STATEMENTS MAY
HAVE BEEN BASED ON AN EARLY DECISION OF THE SECRETARY OF THE INTERIOR
(CALIFORNIA DEVELOPMENT CO., 33 L.D. 391), WHICH ALSO PROVIDES SOME
SUPPORT FOR THE PETITIONER'S POSITION.  THE COMMISSIONER OF
RECLAMATION, HOWEVER, HAS EXPLAINED THAT "DESPITE THE STATEMENT IN
EARLIER MANUALS BASED UPON THE CALIFORNIA LAND DEVELOPMENT OPINION  ...
," THE BUREAU'S PRACTICE HAS BEEN TO MAKE NO DISTINCTION BETWEEN
NAVIGABLE AND NONNAVIGABLE WATERS. 
..END :











JOHNSON V. EISENTRAGER, 339 U.S. 763 


NO. 306.  ARGUED APRIL 17, 1950.  - DECIDED JUNE 5, 1950.  - 84 U.S.
APP. D.C. 396, 174 F.2D 961, REVERSED. 


RESPONDENTS, WHO ARE NONRESIDENT ENEMY ALIENS, WERE CAPTURED IN CHINA
BY THE UNITED STATES ARMY AND TRIED AND CONVICTED IN CHINA BY AN
AMERICAN MILITARY COMMISSION FOR VIOLATIONS OF THE LAWS OF WAR
COMMITTED IN CHINA PRIOR TO THEIR CAPTURE.  THEY WERE TRANSPORTED TO
THE AMERICAN-OCCUPIED PART OF GERMANY AND IMPRISONED THERE IN THE
CUSTODY OF THE ARMY.  AT NO TIME WERE THEY WITHIN THE TERRITORIAL
JURISDICTION OF ANY AMERICAN CIVIL COURT.  CLAIMING THAT THEIR TRIAL,
CONVICTION AND IMPRISONMENT VIOLATED ARTICLES I AND III, THE FIFTH
AMENDMENT, AND OTHER PROVISIONS OF OUR CONSTITUTION, LAWS OF THE UNITED
STATES AND PROVISIONS OF THE GENEVA CONVENTION, THEY PETITIONED THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR A WRIT OF HABEAS CORPUS
DIRECTED TO THE SECRETARY OF DEFENSE, THE SECRETARY OF THE ARMY, AND
SEVERAL OFFICERS OF THE ARMY HAVING DIRECTIVE POWER OVER THEIR
CUSTODIAN.  HELD: 

1.  A NONRESIDENT ENEMY ALIEN HAS NO ACCESS TO OUR COURTS IN
WARTIME.  PP. 768-777. 

(A)  OUR LAW DOES NOT ABOLISH INHERENT DISTINCTIONS RECOGNIZED
THROUGHOUT THE CIVILIZED WORLD BETWEEN CITIZENS AND ALIENS, NOR BETWEEN
ALIENS OF FRIENDLY AND ENEMY ALLEGIANCE, NOR BETWEEN RESIDENT ENEMY
ALIENS WHO HAVE SUBMITTED THEMSELVES TO OUR LAWS AND NONRESIDENT ENEMY
ALIENS WHO AT ALL TIMES HAVE REMAINED WITH, AND ADHERED TO, ENEMY
GOVERNMENTS.  P. 769. 

(B)  IN EXTENDING CERTAIN CONSTITUTIONAL PROTECTIONS TO RESIDENT
ALIENS, THIS COURT HAS BEEN CAREFUL TO POINT OUT THAT IT WAS THE
ALIENS' PRESENCE WITHIN ITS TERRITORIAL JURISDICTION THAT GAVE THE
JUDICIARY POWER TO ACT.  P. 771. 

(C)  EXECUTIVE POWER OVER ENEMY ALIENS, UNDELAYED AND UNHAMPERED BY
LITIGATION, HAS BEEN DEEMED, THROUGHOUT OUR HISTORY, ESSENTIAL TO
WARTIME SECURITY.  P. 774. 

(D)  A RESIDENT ENEMY ALIEN IS CONSTITUTIONALLY SUBJECT TO SUMMARY
ARREST, INTERNMENT AND DEPORTATION WHENEVER A "DECLARED WAR" EXISTS. 
COURTS WILL ENTERTAIN HIS PLEA FOR FREEDOM FROM EXECUTIVE CUSTODY ONLY
TO ASCERTAIN THE EXISTENCE OF A STATE OF WAR AND WHETHER HE IS AN ALIEN
ENEMY.  ONCE THESE JURISDICTIONAL FACTS HAVE BEEN DETERMINED, COURTS
WILL NOT INQUIRE INTO ANY OTHER ISSUE AS TO HIS INTERNMENT.  P. 775. 

(E)  A NONRESIDENT ENEMY ALIEN, ESPECIALLY ONE WHO HAS REMAINED IN
THE SERVICE OF THE ENEMY, DOES NOT HAVE EVEN THIS QUALIFIED ACCESS TO
OUR COURTS.  P. 776. 

2.  THESE NONRESIDENT ENEMY ALIENS, CAPTURED AND IMPRISONED ABROAD,
HAVE NO RIGHT TO A WRIT OF HABEAS CORPUS IN A COURT OF THE UNITED
STATES.  EX PARTE QUIRIN, 317 U.S. 1; IN RE YAMASHITA, 327 U.S. 1,
DISTINGUISHED.  PP. 777-781. 

3.  THE CONSTITUTION DOES NOT CONFER A RIGHT OF PERSONAL SECURITY OR
AN IMMUNITY FROM MILITARY TRIAL AND PUNISHMENT UPON AN ALIEN ENEMY
ENGAGED IN THE HOSTILE SERVICE OF A GOVERNMENT AT WAR WITH THE UNITED
STATES.  PP. 781-785. 

(A)  THE TERM "ANY PERSON" IN THE FIFTH AMENDMENT DOES NOT EXTEND ITS
PROTECTION TO ALIEN ENEMIES EVERYWHERE IN THE WORLD ENGAGED IN
HOSTILITIES AGAINST US.  PP. 782-783. 

(B)  THE CLAIM ASSERTED BY RESPONDENTS AND SUSTAINED BY THE COURT
BELOW WOULD, IN PRACTICAL EFFECT, AMOUNT TO A RIGHT NOT TO BE TRIED AT
ALL FOR AN OFFENSE AGAINST OUR ARMED FORCES.  P. 782. 

4.  THE PETITION IN THIS CASE ALLEGES NO FACT SHOWING LACK OF
JURISDICTION IN THE MILITARY AUTHORITIES TO ACCUSE, TRY AND CONDEMN
THESE PRISONERS OR THAT THEY ACTED IN EXCESS OF THEIR LAWFUL POWERS. 
PP. 785-790. 

(A)  THE JURISDICTION OF MILITARY AUTHORITIES, DURING OR FOLLOWING
HOSTILITIES, TO PUNISH THOSE GUILTY OF OFFENSES AGAINST THE LAWS OF WAR
IS LONG-ESTABLISHED.  P. 786. 

(B)  IT BEING WITHIN THE JURISDICTION OF A MILITARY COMMISSION TO TRY
THESE PRISONERS, IT WAS FOR IT TO DETERMINE WHETHER THE LAWS OF WAR
APPLIED AND WHETHER THEY HAD BEEN VIOLATED.  PP. 786-788. 

(C)  IT IS NOT THE FUNCTION OF THE JUDICIARY TO ENTERTAIN PRIVATE
LITIGATION - EVEN BY A CITIZEN - WHICH CHALLENGES THE LEGALITY, WISDOM
OR PROPRIETY OF THE COMMANDER-IN-CHIEF IN SENDING OUR ARMED FORCES
ABROAD OR TO ANY PARTICULAR REGION.  P. 789. 

(D)  NOTHING IN THE GENEVA CONVENTION MAKES THESE PRISONERS IMMUNE
FROM PROSECUTION OR PUNISHMENT FOR WAR CRIMES.  P. 789. 

(E)  ARTICLE 60 OF THE GENEVA CONVENTION, REQUIRING THAT NOTICE OF
TRIAL OF PRISONERS OF WAR BE GIVEN TO THE PROTECTING POWER, IS
INAPPLICABLE TO TRIALS FOR WAR CRIMES COMMITTED BEFORE CAPTURE.  PP.
789-790. 

(F)  ARTICLE 63 OF THE GENEVA CONVENTION, REQUIRING TRIAL OF
PRISONERS OF WAR "BY THE SAME COURTS AND ACCORDING TO THE SAME
PROCEDURE AS IN THE CASE OF PERSONS BELONGING TO THE ARMED FORCES OF
THE DETAINING POWER," IS LIKEWISE INAPPLICABLE TO TRIALS FOR WAR CRIMES
COMMITTED BEFORE CAPTURE.  P. 790. 

5.  SINCE THERE IS NO BASIS IN THIS CASE FOR INVOKING FEDERAL
JUDICIAL POWER, IT IS NOT NECESSARY TO DECIDE WHERE, IF THE CASE WERE
OTHERWISE, THE PETITION SHOULD BE FILED.  PP. 790-791. 

JOHNSON, SECRETARY OF DEFENSE, ET AL. V. EISENTRAGER, ALIAS EHRHARDT,
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE DISTRICT COURT DISMISSED A PETITION FOR A WRIT OF HABEAS CORPUS
TO INQUIRE INTO THE CONFINEMENT OF RESPONDENTS BY THE UNITED STATES
ARMY IN OCCUPIED GERMANY.  THE COURT OF APPEALS REVERSED.  84 U.S. APP.
D.C. 396, 174 F.2D 961.  THIS COURT GRANTED CERTIORARI.  338 U.S. 877. 
REVERSED, P. 791. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE QUESTION IN THIS CASE IS ONE OF JURISDICTION OF CIVIL
COURTS OF THE UNITED STATES VIS-A-VIS MILITARY AUTHORITIES IN DEALING
WITH ENEMY ALIENS OVERSEAS.  THE ISSUES COME HERE IN THIS WAY: 

TWENTY-ONE GERMAN NATIONALS PETITIONED THE DISTRICT COURT OF THE
DISTRICT OF COLUMBIA FOR WRITS OF HABEAS CORPUS.  THEY ALLEGED THAT,
PRIOR TO MAY 8, 1945, THEY WERE IN THE SERVICE OF GERMAN ARMED FORCES
IN CHINA.  THEY AMENDED TO ALLEGE THAT THEIR EMPLOYMENT THERE WAS BY
CIVILIAN AGENCIES OF THE GERMAN GOVERNMENT.  THEIR EXACT AFFILIATION IS
DISPUTED, AND, FOR OUR PURPOSES, IMMATERIAL.  ON MAY 8, 1945, THE
GERMAN HIGH COMMAND EXECUTED AN ACT OF UNCONDITIONAL SURRENDER,
EXPRESSLY OBLIGATING ALL FORCES UNDER GERMAN CONTROL AT ONCE TO CEASE
ACTIVE HOSTILITIES.  THESE PRISONERS HAVE BEEN CONVICTED OF VIOLATING
LAWS OF WAR, BY ENGAGING IN, PERMITTING OR ORDERING CONTINUED MILITARY
ACTIVITY AGAINST THE UNITED STATES AFTER SURRENDER OF GERMANY AND
BEFORE SURRENDER OF JAPAN.  THEIR HOSTILE OPERATIONS CONSISTED
PRINCIPALLY OF COLLECTING AND FURNISHING INTELLIGENCE CONCERNING
AMERICAN FORCES AND THEIR MOVEMENTS TO THE JAPANESE ARMED FORCES. 
THEY, WITH SIX OTHERS WHO WERE ACQUITTED, WERE TAKEN INTO CUSTODY BY
THE UNITED STATES ARMY AFTER THE JAPANESE SURRENDER AND WERE TRIED AND
CONVICTED BY A MILITARY COMMISSION CONSTITUTED BY OUR COMMANDING
GENERAL AT NANKING BY DELEGATION FROM THE COMMANDING GENERAL, UNITED
STATES FORCES, CHINA THEATRE, PURSUANT TO AUTHORITY SPECIFICALLY
GRANTED BY THE JOINT CHIEFS OF STAFF OF THE UNITED STATES.  THE
COMMISSION SAT IN CHINA, WITH EXPRESS CONSENT OF THE CHINESE
GOVERNMENT.  THE PROCEEDING WAS CONDUCTED WHOLLY UNDER AMERICAN
AUSPICES AND INVOLVED NO INTERNATIONAL PARTICIPATION.  AFTER
CONVICTION, THE SENTENCES WERE DULY REVIEWED AND, WITH IMMATERIAL
MODIFICATION, APPROVED BY MILITARY REVIEWING AUTHORITY. 

THE PRISONERS WERE REPATRIATED TO GERMANY TO SERVE THEIR SENTENCES. 
THEIR IMMEDIATE CUSTODIAN IS COMMANDANT OF LANDSBERG PRISON, AN
AMERICAN ARMY OFFICER UNDER THE COMMANDING GENERAL, THIRD UNITED STATES
ARMY, AND THE COMMANDING GENERAL, EUROPEAN COMMAND.  HE COULD NOT BE
REACHED BY PROCESS FROM THE DISTRICT COURT.  RESPONDENTS NAMED IN THE
PETITION ARE SECRETARY OF DEFENSE, SECRETARY OF THE ARMY, CHIEF OF
STAFF OF THE ARMY, AND THE JOINT CHIEFS OF STAFF OF THE UNITED STATES. 

THE PETITION ALLEGES, AND RESPONDENTS DENIED, THAT THE JAILER IS
SUBJECT TO THEIR DIRECTION.  THE COURT OF APPEALS ASSUMED, AND WE DO
LIKEWISE, THAT, WHILE PRISONERS ARE IN IMMEDIATE PHYSICAL CUSTODY OF AN
OFFICER OR OFFICERS NOT PARTIES TO THE PROCEEDING, RESPONDENTS NAMED IN
THE PETITION HAVE LAWFUL AUTHORITY TO EFFECT THEIR RELEASE. 

THE PETITION PRAYS AN ORDER THAT THE PRISONERS BE PRODUCED BEFORE THE
DISTRICT COURT, THAT IT MAY INQUIRE INTO THEIR CONFINEMENT AND ORDER
THEM DISCHARGED FROM SUCH OFFENSES AND CONFINEMENT.  IT IS CLAIMED THAT
THEIR TRIAL, CONVICTION AND IMPRISONMENT VIOLATE ARTICLES I AND III OF
THE CONSTITUTION, AND THE FIFTH AMENDMENT THERETO, AND OTHER PROVISIONS
OF THE CONSTITUTION AND LAWS OF THE UNITED STATES AND PROVISIONS OF THE
GENEVA CONVENTION GOVERNING TREATMENT OF PRISONERS OF WAR. 

A RULE TO SHOW CAUSE ISSUED, TO WHICH THE UNITED STATES MADE RETURN. 
THEREUPON THE PETITION WAS DISMISSED ON AUTHORITY OF AHRENS V. CLARK,
335 U.S. 188. 

THE COURT OF APPEALS REVERSED AND, REINSTATING THE PETITION, REMANDED
FOR FURTHER PROCEEDINGS.  84 U.S. APP. D.C. 396, 174 F.2D 961.  IT
CONCLUDED THAT ANY PERSON, INCLUDING AN ENEMY ALIEN, DEPRIVED OF HIS
LIBERTY ANYWHERE UNDER ANY PURPORTED AUTHORITY OF THE UNITED STATES IS
ENTITLED TO THE WRIT IF HE CAN SHOW THAT EXTENSION TO HIS CASE OF ANY
CONSTITUTIONAL RIGHTS OR LIMITATIONS WOULD SHOW HIS IMPRISONMENT
ILLEGAL; THAT, ALTHOUGH NO STATUTORY JURISDICTION OF SUCH CASES IS
GIVEN, COURTS MUST BE HELD TO POSSESS IT AS PART OF THE JUDICIAL POWER
OF THE UNITED STATES; THAT WHERE DEPRIVATION OF LIBERTY BY AN OFFICIAL
ACT OCCURS OUTSIDE THE TERRITORIAL JURISDICTION OF ANY DISTRICT COURT,
THE PETITION WILL LIE IN THE DISTRICT COURT WHICH HAS TERRITORIAL
JURISDICTION OVER OFFICIALS WHO HAVE DIRECTIVE POWER OVER THE IMMEDIATE
JAILER. 

THE OBVIOUS IMPORTANCE OF THESE HOLDINGS TO BOTH JUDICIAL
ADMINISTRATION AND MILITARY OPERATIONS IMPELLED US TO GRANT
CERTIORARI.  338 U.S. 877.  THE CASE IS BEFORE US ONLY ON ISSUES OF
LAW.  THE WRIT OF HABEAS CORPUS MUST BE GRANTED "UNLESS IT APPEARS FROM
THE APPLICATION" THAT THE APPLICANTS ARE NOT ENTITLED TO IT.  28 U.S.C.
SEC. 2243. 

WE ARE CITED TO NO INSTANCE WHERE A COURT, IN THIS OR ANY OTHER
COUNTRY WHERE THE WRIT IS KNOWN, HAS ISSUED IT ON BEHALF OF AN ALIEN
ENEMY WHO, AT NO RELEVANT TIME AND IN NO STAGE OF HIS CAPTIVITY, HAS
BEEN WITHIN ITS TERRITORIAL JURISDICTION.  NOTHING IN THE TEXT OF THE
CONSTITUTION EXTENDS SUCH A RIGHT, NOR DOES ANYTHING IN OUR STATUTES. 
ABSENCE OF SUPPORT FROM LEGISLATIVE OR JURIDICAL SOURCES IS IMPLICIT IN
THE STATEMENT OF THE COURT BELOW THAT "THE ANSWERS STEM DIRECTLY FROM
FUNDAMENTALS.  THEY CANNOT BE FOUND BY CASUAL REFERENCE TO STATUTES OR
CASES."  THE BREADTH OF THE COURT'S PREMISES AND SOLUTION REQUIRES US
TO CONSIDER QUESTIONS BASIC TO ALIEN ENEMY AND KINDRED LITIGATION WHICH
FOR SOME YEARS HAVE BEEN BEATING UPON OUR DOORS.  FN1

                                  I. 

MODERN AMERICAN LAW HAS COME A LONG WAY SINCE THE TIME WHEN OUTBREAK
OF WAR MADE EVERY ENEMY NATIONAL AN OUTLAW, SUBJECT TO BOTH PUBLIC AND
PRIVATE SLAUGHTER, CRUELTY AND PLUNDER.  BUT EVEN BY THE MOST
MAGNANIMOUS VIEW, OUR LAW DOES NOT ABOLISH INHERENT DISTINCTIONS
RECOGNIZED THROUGHOUT THE CIVILIZED WORLD BETWEEN CITIZENS AND ALIENS,
NOR BETWEEN ALIENS OF FRIENDLY AND OF ENEMY ALLEGIANCE,  FN2  NOR
BETWEEN RESIDENT ENEMY ALIENS WHO HAVE SUBMITTED THEMSELVES TO OUR LAWS
AND NONRESIDENT ENEMY ALIENS WHO AT ALL TIMES HAVE REMAINED WITH, AND
ADHERED TO, ENEMY GOVERNMENTS. 

WITH THE CITIZEN WE ARE NOW LITTLE CONCERNED, EXCEPT TO SET HIS CASE
APART AS UNTOUCHED BY THIS DECISION AND TO TAKE MEASURE OF THE
DIFFERENCE BETWEEN HIS STATUS AND THAT OF ALL CATEGORIES OF ALIENS. 
CITIZENSHIP AS A HEAD OF JURISDICTION AND A GROUND OF PROTECTION WAS
OLD WHEN PAUL INVOKED IT IN HIS APPEAL TO CAESAR.  THE YEARS HAVE NOT
DESTROYED NOR DIMINISHED THE IMPORTANCE OF CITIZENSHIP NOR HAVE THEY
SAPPED THE VITALITY OF A CITIZEN'S CLAIMS UPON HIS GOVERNMENT FOR
PROTECTION.  IF A PERSON'S CLAIM TO UNITED STATES CITIZENSHIP IS DENIED
BY ANY OFFICIAL, CONGRESS HAS DIRECTED OUR COURTS TO ENTERTAIN HIS
ACTION TO DECLARE HIM TO BE A CITIZEN "REGARDLESS OF WHETHER HE IS
WITHIN THE UNITED STATES OR ABROAD."  54 STAT. 1171, 8 U.S.C. SEC.
903.  THIS COURT LONG AGO EXTENDED HABEAS CORPUS TO ONE SEEKING
ADMISSION TO THE COUNTRY TO ASSURE FAIR HEARING OF HIS CLAIMS TO
CITIZENSHIP, CHIN YOW V. UNITED STATES, 208 U.S. 8, AND HAS SECURED
CITIZENSHIP AGAINST FORFEITURE BY INVOLUNTARY FORMAL ACTS, PERKINS V.
ELG, 307 U.S. 325.  FN3  BECAUSE THE GOVERNMENT'S OBLIGATION OF
PROTECTION IS CORRELATIVE WITH THE DUTY OF LOYAL SUPPORT INHERENT IN
THE CITIZEN'S ALLEGIANCE, CONGRESS HAS DIRECTED THE PRESIDENT TO EXERT
THE FULL DIPLOMATIC AND POLITICAL POWER OF THE UNITED STATES ON BEHALF
OF ANY CITIZEN, BUT OF NO OTHER, IN JEOPARDY ABROAD.  WHEN ANY CITIZEN
IS DEPRIVED OF HIS LIBERTY BY ANY FOREIGN GOVERNMENT, IT IS MADE THE
DUTY OF THE PRESIDENT TO DEMAND THE REASONS AND, IF THE DETENTION
APPEARS WRONGFUL, TO USE MEANS NOT AMOUNTING TO ACTS OF WAR TO
EFFECTUATE HIS RELEASE.  FN4  IT IS NEITHER SENTIMENTALITY NOR
CHAUVINISM TO REPEAT THAT "CITIZENSHIP IS A HIGH PRIVILEGE."  UNITED
STATES V. MANZI, 276 U.S. 463, 467. 

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.  THE
JAPANESE IMMIGRANT CASE, 189 U.S. 86; LOW WAH SUEY V. BACKUS, 225 U.S.
460; TISI V. TOD, 264 U.S. 131; UNITED STATES EX REL. VAJTAUER V.
COMM'R, 273 U.S. 103; BRIDGES V. WIXON, 326 U.S. 135; WONG YANG SUNG V.
MCGRATH, 339 U.S. 33.  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.  YICK WO V. HOPKINS, 118 U.S. 356. 

BUT, 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.  IN THE PIONEER CASE OF YICK WO. V. HOPKINS, THE COURT
SAID OF THE FOURTEENTH AMENDMENT, "THESE PROVISIONS ARE UNIVERSAL IN
THEIR APPLICATION, TO ALL PERSONS WITHIN THE TERRITORIAL JURISDICTION,
WITHOUT REGARD TO ANY DIFFERENCES OF RACE, OF COLOR, OR OF NATIONALITY;
...."  118 U.S. 356, 369.  AND IN THE JAPANESE IMMIGRANT CASE, THE
COURT HELD ITS PROCESSES AVAILABLE TO "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." 
189 U.S. 86, 101. 

SINCE MOST CASES INVOLVING ALIENS AFFORD THIS GROUND OF JURISDICTION,
AND THE CIVIL AND PROPERTY RIGHTS OF IMMIGRANTS OR TRANSIENTS OF
FOREIGN NATIONALITY SO NEARLY APPROACH EQUIVALENCE TO THOSE OF
CITIZENS, COURTS IN PEACE TIME HAVE LITTLE OCCASION TO INQUIRE WHETHER
LITIGANTS BEFORE THEM ARE ALIEN OR CITIZEN. 

IT IS WAR THAT EXPOSES THE RELATIVE VULNERABILITY OF THE ALIEN'S
STATUS.  THE SECURITY AND PROTECTION ENJOYED WHILE THE NATION OF HIS
ALLEGIANCE REMAINS IN AMITY WITH THE UNITED STATES ARE GREATLY IMPAIRED
WHEN HIS NATION TAKES UP ARMS AGAINST US.  WHILE HIS LOT IS FAR MORE
HUMANE AND ENDURABLE THAN THE EXPERIENCE OF OUR CITIZENS IN SOME ENEMY
LANDS, IT IS STILL NOT A HAPPY ONE.  BUT DISABILITIES THIS COUNTRY LAYS
UPON THE ALIEN WHO BECOMES ALSO AN ENEMY ARE IMPOSED TEMPORARILY AS AN
INCIDENT OF WAR AND NOT AS AN INCIDENT OF ALIENAGE.  JUDGE CARDOZO
COMMENTED CONCERNING THIS DISTINCTION:  "MUCH OF THE OBSCURITY WHICH
SURROUNDS THE RIGHTS OF ALIENS HAS ITS ORIGIN IN THIS CONFUSION OF
DIVERSE SUBJECTS."  TECHT V. HUGHES, 229 N.Y. 222, 237, 128 N.E. 185,
189. 

AMERICAN DOCTRINE AS TO EFFECT OF WAR UPON THE STATUS OF NATIONALS OF
BELLIGERENTS TOOK PERMANENT SHAPE FOLLOWING OUR FIRST FOREIGN WAR. 
CHANCELLOR KENT, AFTER CONSIDERING THE LEADING AUTHORITIES OF HIS TIME,
DECLARED THE LAW TO BE THAT "  ...  IN WAR, THE SUBJECTS OF EACH
COUNTRY WERE ENEMIES TO EACH OTHER, AND BOUND TO REGARD AND TREAT EACH
OTHER AS SUCH."  GRISWOLD V. WADDINGTON, 16 JOHNS.  (N.Y.)  438, 480. 
IF THIS WAS EVER SOMETHING OF A FICTION, IT IS ONE VALIDATED BY THE
ACTUALITIES OF MODERN TOTAL WARFARE.  CONSCRIPTION, COMPULSORY SERVICE
AND MEASURES TO MOBILIZE EVERY HUMAN AND MATERIAL RESOURCE AND TO
UTILIZE NATIONALS - WHEREVER THEY MAY BE - IN ARMS, INTRIGUE AND
SABOTAGE, ATTEST THE PROPHETIC REALISM OF WHAT ONCE MAY HAVE SEEMED A
DOCTRINAIRE AND ARTIFICIAL PRINCIPLE.  WITH CONFIRMATION OF RECENT
HISTORY, WE MAY REITERATE THIS COURT'S EARLIER TEACHING THAT IN WAR
"EVERY INDIVIDUAL OF THE ONE NATION MUST ACKNOWLEDGE EVERY INDIVIDUAL
OF THE OTHER NATION AS HIS OWN ENEMY - BECAUSE THE ENEMY OF HIS
COUNTRY."  THE RAPID, 8 CRANCH 155, 161.  SEE ALSO WHITE V. BURNLEY, 20
HOW.  235, 249; LAMAR V. BROWNE, 92 U.S. 187, 194.  AND THIS WITHOUT
REGARD TO HIS INDIVIDUAL SENTIMENTS OR DISPOSITION.  THE BENITO
ESTENGER, 176 U.S. 568, 571.  THE ALIEN ENEMY IS BOUND BY AN ALLEGIANCE
WHICH COMMITS HIM TO LOSE NO OPPORTUNITY TO FORWARD THE CAUSE OF OUR
ENEMY; HENCE THE UNITED STATES, ASSUMING HIM TO BE FAITHFUL TO HIS
ALLEGIANCE, REGARDS HIM AS PART OF THE ENEMY RESOURCES.  IT THEREFORE
TAKES MEASURES TO DISABLE HIM FROM COMMISSION OF HOSTILE ACTS IMPUTED
AS HIS INTENTION BECAUSE THEY ARE A DUTY TO HIS SOVEREIGN. 

THE UNITED STATES DOES NOT INVOKE THIS ENEMY ALLEGIANCE ONLY FOR ITS
OWN INTEREST, BUT RESPECTS IT ALSO WHEN TO THE ENEMY'S ADVANTAGE.  IN
WORLD WAR I OUR CONSCRIPTION ACT DID NOT SUBJECT THE ALIEN ENEMY TO
COMPULSORY MILITARY SERVICE.  40 STAT. 885, C. XII, SEC. 4.  THE
SELECTIVE SERVICE ACT OF 1948, 62 STAT. 604, 50 U.S.C. APP. SEC.
454(A), EXEMPTS ALIENS WHO HAVE NOT FORMALLY DECLARED THEIR INTENTION
TO BECOME CITIZENS FROM MILITARY TRAINING, SERVICE AND REGISTRATION, IF
THEY MAKE APPLICATION, BUT IF SO RELIEVED, THEY ARE BARRED FROM
BECOMING CITIZENS.  THUS THE ALIEN ENEMY STATUS CARRIES IMPORTANT
IMMUNITIES AS WELL AS DISADVANTAGES.  THE UNITED STATES DOES NOT ASK
HIM TO VIOLATE HIS ALLEGIANCE OR TO COMMIT TREASON TOWARD HIS OWN
COUNTRY FOR THE SAKE OF OURS.  THIS ALSO IS THE DOCTRINE AND THE
PRACTICE OF OTHER STATES COMPRISING OUR WESTERN CIVILIZATION.  FN5 
THE ESSENTIAL PATTERN FOR SEASONABLE EXECUTIVE CONSTRAINT OF ENEMY
ALIENS, NOT ON THE BASIS OF INDIVIDUAL PREPOSSESSIONS FOR THEIR NATIVE
LAND BUT ON THE BASIS OF POLITICAL AND LEGAL RELATIONS TO THE ENEMY
GOVERNMENT, WAS LAID DOWN IN THE VERY EARLIEST DAYS OF THE REPUBLIC AND
HAS ENDURED TO THIS DAY.  IT WAS ESTABLISHED BY THE ALIEN ENEMY ACT OF
1798.  1 STAT. 577, AS AMENDED, 50 U.S.C. SEC. 21.  AND IT IS TO BE
NOTED THAT, WHILE THE ALIEN AND SEDITION ACTS OF THAT YEAR PROVOKED A
REACTION WHICH HELPED SWEEP THE PARTY OF MR. JEFFERSON INTO POWER IN
1800, AND THOUGH HIS PARTY PROCEEDED TO UNDO WHAT WAS REGARDED AS THE
MISCHIEVOUS LEGISLATION OF THE FEDERALISTS, THIS ENACTMENT WAS NEVER
REPEALED.  FN6  EXECUTIVE POWER OVER ENEMY ALIENS, UNDELAYED AND
UNHAMPERED BY LITIGATION, HAS BEEN DEEMED, THROUGHOUT OUR HISTORY,
ESSENTIAL TO WAR-TIME SECURITY.  THIS IS IN KEEPING WITH THE PRACTICES
OF THE MOST ENLIGHTENED OF NATIONS AND HAS RESULTED IN TREATMENT OF
ALIEN ENEMIES MORE CONSIDERATE THAN THAT WHICH HAS PREVAILED AMONG ANY
OF OUR ENEMIES AND SOME OF OUR ALLIES.  THIS STATUTE WAS ENACTED OR
SUFFERED TO CONTINUE BY MEN WHO HELPED FOUND THE REPUBLIC AND FORMULATE
THE BILL OF RIGHTS, AND ALTHOUGH IT OBVIOUSLY DENIES ENEMY ALIENS THE
CONSTITUTIONAL IMMUNITIES OF CITIZENS, IT SEEMS NOT THEN TO HAVE BEEN
SUPPOSED THAT A NATION'S OBLIGATIONS TO ITS FOES COULD EVER BE PUT ON A
PARITY WITH THOSE TO ITS DEFENDERS. 

THE RESIDENT ENEMY ALIEN IS CONSTITUTIONALLY SUBJECT TO SUMMARY
ARREST, INTERNMENT AND DEPORTATION WHENEVER A "DECLARED WAR" EXISTS. 
COURTS WILL ENTERTAIN HIS PLEA FOR FREEDOM FROM EXECUTIVE CUSTODY ONLY
TO ASCERTAIN THE EXISTENCE OF A STATE OF WAR AND WHETHER HE IS AN ALIEN
ENEMY AND SO SUBJECT TO THE ALIEN ENEMY ACT.  ONCE THESE JURISDICTIONAL
ELEMENTS HAVE BEEN DETERMINED, COURTS WILL NOT INQUIRE INTO ANY OTHER
ISSUE AS TO HIS INTERNMENT.  LUDECKE V. WATKINS, 335 U.S. 160.  FN7 

THE STANDING OF THE ENEMY ALIEN TO MAINTAIN ANY ACTION IN THE COURTS
OF THE UNITED STATES HAS BEEN OFTEN CHALLENGED AND SOMETIMES DENIED. 
THE GENERAL STATEMENT WAS EARLY MADE ON COMBINED AUTHORITY OF KENT AND
STORY "THAT THEY HAVE NO POWER TO SUE IN THE PUBLIC COURTS OF THE ENEMY
NATION."  GRISWOLD V. WADDINGTON, 16 JOHNS.  (N.Y.)  438, 477.  OUR
RULE OF GENEROUS ACCESS TO THE RESIDENT ENEMY ALIEN WAS FIRST LAID DOWN
BY CHANCELLOR KENT IN 1813, WHEN, SQUARELY FACED WITH THE PLEA THAT AN
ALIEN ENEMY COULD NOT SUE UPON A DEBT CONTRACTED BEFORE THE WAR OF
1812, HE REVIEWED THE AUTHORITIES TO THAT TIME AND BROADLY DECLARED
THAT "A LAWFUL RESIDENCE IMPLIES PROTECTION, AND A CAPACITY TO SUE AND
BE SUED.  A CONTRARY DOCTRINE WOULD BE REPUGNANT TO SOUND POLICY, NO
LESS THAN TO JUSTICE AND HUMANITY."  CLARKE V. MOREY, 10 JOHNS. 
(N.Y.)  70, 72.  A UNANIMOUS COURT RECENTLY CLARIFIED BOTH THE
PRIVILEGE OF ACCESS TO OUR COURTS AND THE LIMITATIONS UPON IT.  WE
SAID:  "THE ANCIENT RULE AGAINST SUITS BY RESIDENT ALIEN ENEMIES HAS
SURVIVED ONLY SO FAR AS NECESSARY TO PREVENT USE OF THE COURTS TO
ACCOMPLISH A PURPOSE WHICH MIGHT HAMPER OUR OWN WAR EFFORTS OR GIVE AID
TO THE ENEMY.  THIS MAY BE TAKEN AS THE SOUND PRINCIPLE OF THE COMMON
LAW TODAY."  EX PARTE KAWATO, 317 U.S. 69, 75. 

BUT THE NONRESIDENT ENEMY ALIEN, ESPECIALLY ONE WHO HAS REMAINED IN
THE SERVICE OF THE ENEMY, DOES NOT HAVE EVEN THIS QUALIFIED ACCESS TO
OUR COURTS, FOR HE NEITHER HAS COMPARABLE CLAIMS UPON OUR INSTITUTIONS
NOR COULD HIS USE OF THEM FAIL TO BE HELPFUL TO THE ENEMY.  OUR LAW ON
THIS SUBJECT FIRST EMERGED ABOUT 1813 WHEN THE SUPREME COURT OF THE
STATE OF NEW YORK HAD OCCASION, IN A SERIES OF CASES, TO EXAMINE THE
FOREMOST AUTHORITIES OF THE CONTINENT AND OF ENGLAND.  IT CONCLUDED THE
RULE OF THE COMMON LAW AND THE LAW OF NATIONS TO BE THAT ALIEN ENEMIES
RESIDENT IN THE COUNTRY OF THE ENEMY COULD NOT MAINTAIN AN ACTION IN
ITS COURTS DURING THE PERIOD OF HOSTILITIES.  BELL V. CHAPMAN, 10
JOHNS.  (N.Y.)  183; JACKSON V. DECKER, 11 JOHNS.  (N.Y.)  418; CLARKE
V. MOREY, 10 JOHNS.  (N.Y.)  70, 74-75.  THIS COURT HAS RECOGNIZED THAT
RULE, CAPERTON V. BOWYER, 14 WALL.  216, 236; MASTERSON V. HOWARD, 18
WALL.  99, 105, AND FOLLOWED IT, EX PARTE COLONNA, 314 U.S. 510, AND IT
CONTINUES TO BE THE LAW THROUGHOUT THIS COUNTRY AND IN ENGLAND.  FN8

             II. 

THE FOREGOING DOMONSTRATES HOW MUCH FURTHER WE MUST GO IF WE ARE TO
INVEST THESE ENEMY ALIENS, RESIDENT, CAPTURED AND IMPRISONED ABROAD,
WITH STANDING TO DEMAND ACCESS TO OUR COURTS. 

WE ARE HERE CONFRONTED WITH A DECISION WHOSE BASIC PREMISE IS THAT
THESE PRISONERS ARE ENTITLED, AS A CONSTITUTIONAL RIGHT, TO SUE IN SOME
COURT OF THE UNITED STATES FOR A WRIT OF HABEAS CORPUS.  TO SUPPORT
THAT ASSUMPTION WE MUST HOLD THAT A PRISONER OF OUR MILITARY
AUTHORITIES IS CONSTITUTIONALLY ENTITLED TO THE WRIT, EVEN THOUGH HE
(A) IS AN ENEMY ALIEN; (B) HAS NEVER BEEN OR RESIDED IN THE UNITED
STATES; (C) WAS CAPTURED OUTSIDE OF OUR TERRITORY AND THERE HELD IN
MILITARY CUSTODY AS A PRISONER OF WAR; (D) WAS TRIED AND CONVICTED BY A
MILITARY COMMISSION SITTING OUTSIDE THE UNITED STATES; (E) FOR OFFENSES
AGAINST LAWS OF WAR COMMITTED OUTSIDE THE UNITED STATES; (F) AND IS AT
ALL TIMES IMPRISONED OUTSIDE THE UNITED STATES. 

WE HAVE POINTED OUT THAT THE PRIVILEGE OF LITIGATION HAS BEEN
EXTENDED TO ALIENS, WHETHER FRIENDLY OR ENEMY, ONLY BECAUSE PERMITTING
THEIR PRESENCE IN THE COUNTRY IMPLIED PROTECTION.  NO SUCH BASIS CAN BE
INVOKED HERE, FOR THESE PRISONERS AT NO RELEVANT TIME WERE WITHIN ANY
TERRITORY OVER WHICH THE UNITED STATES IS SOVEREIGN, AND THE SCENES OF
THEIR OFFENSE, THEIR CAPTURE, THEIR TRIAL AND THEIR PUNISHMENT WERE ALL
BEYOND THE TERRITORIAL JURISDICTION OF ANY COURT OF THE UNITED STATES. 

ANOTHER REASON FOR A LIMITED OPENING OF OUR COURTS TO RESIDENT ALIENS
IS THAT AMONG THEM ARE MANY OF FRIENDLY PERSONAL DISPOSITION TO WHOM
THE STATUS OF ENEMY IS ONLY ONE IMPUTED BY LAW.  BUT THESE PRISONERS
WERE ACTUAL ENEMIES, ACTIVE IN THE HOSTILE SERVICE OF AN ENEMY POWER. 
THERE IS NO FICTION ABOUT THEIR ENMITY.  YET THE DECISION BELOW CONFERS
UPON THEM A RIGHT TO USE OUR COURTS, FREE EVEN OF THE LIMITATION WE
HAVE IMPOSED UPON RESIDENT ALIEN ENEMIES, TO WHOM WE DENY ANY USE OF
OUR COURTS THAT WOULD HAMPER OUR WAR EFFORT OR AID THE ENEMY. 

A BASIC CONSIDERATION IN HABEAS CORPUS PRACTICE IS THAT THE PRISONER
WILL BE PRODUCED BEFORE THE COURT.  THIS IS THE CRUX OF THE STATUTORY
SCHEME ESTABLISHED BY THE CONGRESS N9; INDEED, IT IS INHERENT IN THE
VERY TERM "HABEAS CORPUS."  FN10  AND THOUGH PRODUCTION OF THE PRISONER
MAY BE DISPENSED WITH WHERE IT APPEARS ON THE FACE OF THE APPLICATION
THAT NO CAUSE FOR GRANTING THE WRIT EXISTS, WALKER V. JOHNSTON, 312
U.S. 275, 284, WE HAVE CONSISTENTLY ADHERED TO AND RECOGNIZED THE
GENERAL RULE.  AHRENS V. CLARK, 335 U.S. 188, 190-191.  TO GRANT THE
WRIT TO THESE PRISONERS MIGHT MEAN THAT OUR ARMY MUST TRANSPORT THEM
ACROSS THE SEAS FOR HEARING.  THIS WOULD REQUIRE ALLOCATION OF SHIPPING
SPACE, GUARDING PERSONNEL, BILLETING AND RATIONS.  IT MIGHT ALSO
REQUIRE TRANSPORTATION FOR WHATEVER WITNESSES THE PRISONERS DESIRED TO
CALL AS WELL AS TRANSPORTATION FOR THOSE NECESSARY TO DEFEND LEGALITY
OF THE SENTENCE.  THE WRIT, SINCE IT IS HELD TO BE A MATTER OF RIGHT,
WOULD BE EQUALLY AVAILABLE TO ENEMIES DURING ACTIVE HOSTILITIES AS IN
THE PRESENT TWILIGHT BETWEEN WAR AND PEACE.  SUCH TRIALS WOULD HAMPER
THE WAR EFFORT AND BRING AID AND COMFORT TO THE ENEMY.  THEY WOULD
DIMINISH THE PRESTIGE OF OUR COMMANDERS, NOT ONLY WITH ENEMIES BUT WITH
WAVERING NEUTRALS.  IT WOULD BE DIFFICULT TO DEVISE MORE EFFECTIVE
FETTERING OF A FIELD COMMANDER THAN TO ALLOW THE VERY ENEMIES HE IS
ORDERED TO REDUCE TO SUBMISSION TO CALL HIM TO ACCOUNT IN HIS OWN CIVIL
COURTS AND DIVERT HIS EFFORTS AND ATTENTION FROM THE MILITARY OFFENSIVE
ABROAD TO THE LEGAL DEFENSIVE AT HOME.  NOR IS IT UNLIKELY THAT THE
RESULT OF SUCH ENEMY LITIGIOUSNESS WOULD BE A CONFLICT BETWEEN JUDICIAL
AND MILITARY OPINION HIGHLY COMFORTING TO ENEMIES OF THE UNITED
STATES. 

MOREOVER, WE COULD EXPECT NO RECIPROCITY FOR PLACING THE LITIGATION
WEAPON IN UNRESTRAINED ENEMY HANDS.  THE RIGHT OF JUDICIAL REFUGE FROM
MILITARY ACTION, WHICH IT IS PROPOSED TO BESTOW ON THE ENEMY, CAN
PURCHASE NO EQUIVALENT FOR BENEFIT OF OUR CITIZEN SOLDIERS.  EXCEPT IN
ENGLAND, WHOSE LAW APPEARS TO BE IN HARMONY WITH THE VIEWS WE HAVE
EXPRESSED, AND OTHER ENGLISH-SPEAKING PEOPLES IN WHOSE PRACTICE NOTHING
HAS BEEN CITED TO THE CONTRARY, THE WRIT OF HABEAS CORPUS IS GENERALLY
UNKNOWN. 

THE PRISONERS RELY, HOWEVER, UPON TWO DECISIONS OF THIS COURT TO GET
THEM OVER THE THRESHOLD - EX PARTE QUIRIN, 317 U.S. 1, AND IN RE
YAMASHITA, 327 U.S. 1.  RELIANCE ON THE QUIRIN CASE IS CLEARLY
MISTAKEN.  THOSE PRISONERS WERE IN CUSTODY IN THE DISTRICT OF
COLUMBIA.  ONE WAS, OR CLAIMED TO BE, A CITIZEN.  THEY WERE TRIED BY A
MILITARY COMMISSION SITTING IN THE DISTRICT OF COLUMBIA AT A TIME WHEN
CIVIL COURTS WERE OPEN AND FUNCTIONING NORMALLY.  THEY WERE ARRESTED BY
CIVIL AUTHORITIES AND THE PROSECUTION WAS PERSONALLY DIRECTED BY THE
ATTORNEY GENERAL, A CIVILIAN PROSECUTOR, FOR ACTS COMMITTED IN THE
UNITED STATES.  THEY WAIVED ARRAIGNMENT BEFORE A CIVIL COURT AND IT WAS
CONTENDED THAT THE CIVIL COURTS THEREBY ACQUIRED JURISDICTION AND COULD
NOT BE OUSTED BY THE MILITARY.  NONE OF THE PLACES WHERE THEY WERE
ACTING, ARRESTED, TRIED OR IMPRISONED WERE, IT WAS CONTENDED, IN A ZONE
OF ACTIVE MILITARY OPERATIONS OR UNDER MARTIAL LAW OR ANY OTHER
MILITARY CONTROL, AND NO CIRCUMSTANCES JUSTIFIED TRANSFERRING THEM FROM
CIVIL TO MILITARY JURISDICTION.  NONE OF THESE GRAVE GROUNDS FOR
CHALLENGING MILITARY JURISDICTION CAN BE URGED IN THE CASE NOW BEFORE
US. 

NOR CAN THE COURT'S DECISION IN THE YAMASHITA CASE AID THE
PRISONERS.  THIS COURT REFUSED TO RECEIVE YAMASHITA'S PETITION FOR A
WRIT OF HABEAS CORPUS.  FOR HEARING AND OPINION, IT WAS CONSOLIDATED
WITH ANOTHER APPLICATION FOR A WRIT OF CERTIORARI TO REVIEW THE REFUSAL
OF HABEAS CORPUS BY THE SUPREME COURT OF THE PHILIPPINES OVER WHOSE
DECISIONS THE STATUTE THEN GAVE THIS COURT A RIGHT OF REVIEW.  28
U.S.C. SEC. 349, REPEALED BY ACT OF JUNE 25, 1948, C. 646, SEC. 39, 62
STAT. 992, 1000.  BY REASON OF OUR SOVEREIGNTY AT THAT TIME OVER THESE
INSULAR POSSESSIONS, YAMASHITA STOOD MUCH AS DID QUIRIN BEFORE AMERICAN
COURTS.  YAMASHITA'S OFFENSES WERE COMMITTED ON OUR TERRITORY, HE WAS
TRIED WITHIN THE JURISDICTION OF OUR INSULAR COURTS AND HE WAS
IMPRISONED WITHIN TERRITORY OF THE UNITED STATES.  NONE OF THESE HEADS
OF JURISDICTION CAN BE INVOKED BY THESE PRISONERS. 

DESPITE THIS, THE DOORS OF OUR COURTS HAVE NOT BEEN SUMMARILY CLOSED
UPON THESE PRISONERS.  THREE COURTS HAVE CONSIDERED THEIR APPLICATION
AND HAVE PROVIDED THEIR COUNSEL OPPORTUNITY TO ADVANCE EVERY ARGUMENT
IN THEIR SUPPORT AND TO SHOW SOME REASON IN THE PETITION WHY THEY
SHOULD NOT BE SUBJECT TO THE USUAL DISABILITIES OF NONRESIDENT ENEMY
ALIENS.  THIS IS THE SAME PRELIMINARY HEARING AS TO SUFFICIENCY OF
APPLICATION THAT WAS EXTENDED IN QUIRIN, SUPRA, YAMASHITA, SUPRA, AND
HIROTA V. MACARTHUR, 338 U.S. 197.  AFTER HEARING ALL CONTENTIONS THEY
HAVE SEEN FIT TO ADVANCE AND CONSIDERING EVERY CONTENTION WE CAN BASE
ON THEIR APPLICATION AND THE HOLDINGS BELOW, WE ARRIVE AT THE SAME
CONCLUSION THE COURT REACHED IN EACH OF THOSE CASES, VIZ.: THAT NO
RIGHT TO THE WRIT OF HABEAS CORPUS APPEARS. 

    III. 

THE COURT OF APPEALS DISPENSED WITH ALL REQUIREMENT OF TERRITORIAL
JURISDICTION BASED ON PLACE OF RESIDENCE, CAPTIVITY, TRIAL, OFFENSE, OR
CONFINEMENT.  IT COULD NOT PREDICATE RELIEF UPON ANY INTRATERRITORIAL
CONTACT OF THESE PRISONERS WITH OUR LAWS OR INSTITUTIONS.  INSTEAD, IT
GAVE OUR CONSTITUTION AN EXTRATERRITORIAL APPLICATION TO EMBRACE OUR
ENEMIES IN ARMS.  RIGHT TO THE WRIT, IT REASONED, IS A SUBSIDIARY
PROCEDURAL RIGHT THAT FOLLOWS FROM POSSESSION OF SUBSTANTIVE
CONSTITUTIONAL RIGHTS.  THESE PRISONERS, IT CONSIDERED, ARE INVESTED
WITH A RIGHT OF PERSONAL LIBERTY BY OUR CONSTITUTION AND THEREFORE MUST
HAVE THE RIGHT TO THE REMEDIAL WRIT.  THE COURT STATED THE STEPS IN ITS
OWN REASONING AS FOLLOWS:  "FIRST.  THE FIFTH AMENDMENT, BY ITS TERMS,
APPLIES TO 'ANY PERSON.'  SECOND.  ACTION OF GOVERNMENT OFFICIALS IN
VIOLATION OF THE CONSTITUTION IS VOID.  THIS IS THE ULTIMATE ESSENCE OF
THE PRESENT CONTROVERSY.  THIRD.  A BASIC AND INHERENT FUNCTION OF THE
JUDICIAL BRANCH OF A GOVERNMENT BUILT UPON A CONSTITUTION IS TO SET
ASIDE VOID ACTION BY GOVERNMENT OFFICIALS, AND SO TO RESTRICT EXECUTIVE
ACTION TO THE CONFINES OF THE CONSTITUTION.  IN OUR JURISPRUDENCE, NO
GOVERNMENT ACTION WHICH IS VOID UNDER THE CONSTITUTION IS EXEMPT FROM
JUDICIAL POWER.  FOURTH.  THE WRIT OF HABEAS CORPUS IS THE ESTABLISHED,
TIME-HONORED PROCESS IN OUR LAW FOR TESTING THE AUTHORITY OF ONE WHO
DEPRIVES ANOTHER OF HIS LIBERTY,  - 'THE BEST AND ONLY SUFFICIENT
DEFENSE OF PERSONAL FREEDOM.'  ...  "  84 U.S. APP. D.C. 396, 398-399,
174 F.2D 961, 963-964. 

THE DOCTRINE THAT THE TERM "ANY PERSON" IN THE FIFTH AMENDMENT
SPREADS ITS PROTECTION OVER ALIEN ENEMIES ANYWHERE IN THE WORLD ENGAGED
IN HOSTILITIES AGAINST US, SHOULD BE WEIGHED IN LIGHT OF THE FULL TEXT
OF THAT AMENDMENT:    "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." 

WHEN WE ANALYZE THE CLAIM PRISONERS ARE ASSERTING AND THE COURT BELOW
SUSTAINED, IT AMOUNTS TO A RIGHT NOT TO BE TRIED AT ALL FOR AN OFFENSE
AGAINST OUR ARMED FORCES.  IF THE FIFTH AMENDMENT PROTECTS THEM FROM
MILITARY TRIAL, THE SIXTH AMENDMENT AS CLEARLY PROHIBITS THEIR TRIAL BY
CIVIL COURTS.  THE LATTER REQUIRES IN ALL CRIMINAL PROSECUTIONS THAT
"THE ACCUSED" BE TRIED "BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE
BEEN PREVIOUSLY ASCERTAINED BY LAW."  AND IF THE FIFTH BE HELD TO
EMBRACE THESE PRISONERS BECAUSE IT USES THE INCLUSIVE TERM "NO PERSON,"
THE SIXTH MUST, FOR IT APPLIES TO ALL "ACCUSED."  NO SUGGESTION IS
ADVANCED BY THE COURT BELOW, OR BY PRISONERS, OF ANY CONSTITUTIONAL
METHOD BY WHICH ANY VIOLATIONS OF THE LAWS OF WAR ENDANGERING THE
UNITED STATES FORCES COULD BE REACHED OR PUNISHED, IF IT WERE NOT BY A
MILITARY COMMISSION IN THE THEATRE WHERE THE OFFENSE WAS COMMITTED. 

THE COURT OF APPEALS HAS CITED NO AUTHORITY WHATEVER FOR HOLDING THAT
THE FIFTH AMENDMENT CONFERS RIGHTS UPON ALL PERSONS, WHATEVER THEIR
NATIONALITY, WHEREVER THEY ARE LOCATED AND WHATEVER THEIR OFFENSES,
EXCEPT TO QUOTE EXTENSIVELY FROM A DISSENTING OPINION IN IN RE
YAMASHITA, 327 U.S. 1, 26.  THE HOLDING OF THE COURT IN THAT CASE IS,
OF COURSE, TO THE CONTRARY. 

IF THIS AMENDMENT INVESTS ENEMY ALIENS IN UNLAWFUL HOSTILE ACTION
AGAINST US WITH IMMUNITY FROM MILITARY TRIAL, IT PUTS THEM IN A MORE
PROTECTED POSITION THAN OUR OWN SOLDIERS.  AMERICAN CITIZENS
CONSCRIPTED INTO THE MILITARY SERVICE ARE THEREBY STRIPPED OF THEIR
FIFTH AMENDMENT RIGHTS AND AS MEMBERS OF THE MILITARY ESTABLISHMENT ARE
SUBJECT TO ITS DISCIPLINE, INCLUDING MILITARY TRIALS FOR OFFENSES
AGAINST ALIENS OR AMERICANS.  CF. HUMPHREY V. SMITH, 336 U.S. 695; WADE
V. HUNTER, 336 U.S. 684.  CAN THERE BE ANY DOUBT THAT OUR FOES WOULD
ALSO HAVE BEEN EXCEPTED, BUT FOR THE ASSUMPTION "ANY PERSON" WOULD
NEVER BE READ TO INCLUDE THOSE IN ARMS AGAINST US?  IT WOULD BE A
PARADOX INDEED IF WHAT THE AMENDMENT DENIED TO AMERICANS IT GUARANTEED
TO ENEMIES.  AND, OF COURSE, IT CANNOT BE CLAIMED THAT SUCH SHELTER IS
DUE THEM AS A MATTER OF COMITY FOR ANY RECIPROCAL RIGHTS CONFERRED BY
ENEMY GOVERNMENTS ON AMERICAN SOLDIERS.  FN11 

THE DECISION BELOW WOULD EXTEND COVERAGE OF OUR CONSTITUTION TO
NONRESIDENT ALIEN ENEMIES DENIED TO RESIDENT ALIEN ENEMIES.  THE LATTER
ARE ENTITLED ONLY TO JUDICIAL HEARING TO DETERMINE WHAT THE PETITION OF
THESE PRISONERS ADMITS:  THAT THEY ARE REALLY ALIEN ENEMIES.  WHEN THAT
APPEARS, THOSE RESIDENT HERE MAY BE DEPRIVED OF LIBERTY BY EXECUTIVE
ACTION WITHOUT HEARING.  LUDECKE V. WATKINS, 335 U.S. 160.  WHILE THIS
IS PREVENTIVE RATHER THAN PUNITIVE DETENTION, NO REASON IS APPARENT WHY
AN ALIEN ENEMY CHARGED WITH HAVING COMMITTED A CRIME SHOULD HAVE
GREATER IMMUNITIES FROM EXECUTIVE ACTION THAN ONE WHO IT IS ONLY FEARED
MIGHT AT SOME FUTURE TIME COMMIT A HOSTILE ACT. 

IF THE FIFTH AMENDMENT CONFERS ITS RIGHTS ON ALL THE WORLD EXCEPT
AMERICANS ENGAGED IN DEFENDING IT, THE SAME MUST BE TRUE OF THE
COMPANION CIVIL-RIGHTS AMENDMENTS, FOR NONE OF THEM IS LIMITED BY ITS
EXPRESS TERMS, TERRITORIALLY OR AS TO PERSONS.  SUCH A CONSTRUCTION
WOULD MEAN THAT DURING MILITARY OCCUPATION IRRECONCILABLE ENEMY
ELEMENTS, GUERRILLA FIGHTERS, AND "WEREWOLVES" COULD REQUIRE THE
AMERICAN JUDICIARY TO ASSURE THEM FREEDOMS OF SPEECH, PRESS, AND
ASSEMBLY AS IN THE FIRST AMENDMENT, RIGHT TO BEAR ARMS AS IN THE
SECOND, SECURITY AGAINST "UNREASONABLE" SEARCHES AND SEIZURES AS IN THE
FOURTH, AS WELL AS RIGHTS TO JURY TRIAL AS IN THE FIFTH AND SIXTH
AMENDMENTS. 

SUCH EXTRATERRITORIAL APPLICATION OF ORGANIC LAW WOULD HAVE BEEN SO
SIGNIFICANT AN INNOVATION IN THE PRACTICE OF GOVERNMENTS THAT, IF
INTENDED OR APPREHENDED, IT COULD SCARCELY HAVE FAILED TO EXCITE
CONTEMPORARY COMMENT.  NOT ONE WORD CAN BE CITED.  NO DECISION OF THIS
COURT SUPPORTS SUCH A VIEW.  CF. DOWNES V. BIDWELL, 182 U.S. 244.  NONE
OF THE LEARNED COMMENTATORS ON OUR CONSTITUTION HAS EVEN HINTED AT IT.
THE PRACTICE OF EVERY MODERN GOVERNMENT IS OPPOSED TO IT. 

WE HOLD THAT THE CONSTITUTION DOES NOT CONFER A RIGHT OF PERSONAL
SECURITY OR AN IMMUNITY FROM MILITARY TRIAL AND PUNISHMENT UPON AN
ALIEN ENEMY ENGAGED IN THE HOSTILE SERVICE OF A GOVERNMENT AT WAR WITH
THE UNITED STATES. 

  IV. 

THE COURT OF APPEALS APPEARS TO HAVE BEEN OF OPINION THAT THE
PETITION SHOWS SOME ACTION BY SOME OFFICIAL OF THE UNITED STATES IN
EXCESS OF HIS AUTHORITY WHICH CONFERS A PRIVATE RIGHT TO HAVE IT
JUDICIALLY VOIDED.  ITS SECOND AND THIRD PROPOSITIONS WERE THAT "ACTION
BY GOVERNMENT OFFICIALS IN VIOLATION OF THE CONSTITUTION IS VOID" AND
"A BASIC AND INHERENT FUNCTION OF THE JUDICIAL BRANCH ...  IS TO SET
ASIDE VOID ACTION BY GOVERNMENT OFFICIALS  ...  "  FOR THIS REASON IT
THOUGHT THE WRIT COULD BE GRANTED. 

THE PETITION SPECIFIES FOUR REASONS WHY CONVICTION BY THE MILITARY
COMMISSION WAS IN EXCESS OF ITS JURISDICTION:  TWO BASED ON THE GENEVA
CONVENTION OF JULY 27, 1929, 47 STAT. 2021, WITH WHICH WE DEAL LATER;
AND TWO APPARENTLY DESIGNED TO RAISE CONSTITUTIONAL QUESTIONS.  THE
CONSTITUTIONAL CONTENTIONS ARE THAT "THE DETENTION OF THE PRISONERS AS
CONVICTED WAR CRIMINALS IS ILLEGAL AND IN VIOLATION OF ARTICLES I AND
III OF THE CONSTITUTION OF THE UNITED STATES AND OF THE FIFTH AMENDMENT
THERETO, AND OF OTHER PROVISIONS OF SAID CONSTITUTION AND LAWS OF THE
UNITED STATES ...  , IN THAT: 

"(A)  THERE BEING NO CHARGE OF AN OFFENSE AGAINST THE LAWS OF WAR BY
THE PRISONERS, THE MILITARY COMMISSION WAS WITHOUT JURISDICTION. 

"(B)  IN THE ABSENCE OF HOSTILITIES, MARTIAL LAW, OR AMERICAN
MILITARY OCCUPATION OF CHINA, AND IN VIEW OF TREATIES BETWEEN THE
UNITED STATES AND CHINA DATED FEBRUARY 4, 1943, AND MAY 4, 1943, AND
BETWEEN GERMANY AND CHINA, DATED MAY 18, 1921, THE MILITARY COMMISSION
WAS WITHOUT JURISDICTION." 

THE PETITION DOES NOT PARTICULARIZE, AND NEITHER DOES THE COURT
BELOW, THE SPECIFIC RESPECTS IN WHICH IT IS CLAIMED ACTS OF THE
MILITARY WERE ULTRA VIRES. 

THE JURISDICTION OF MILITARY AUTHORITIES, DURING OR FOLLOWING
HOSTILITIES, TO PUNISH THOSE GUILTY OF OFFENSES AGAINST THE LAWS OF WAR
IS LONG-ESTABLISHED.  BY THE TREATY OF VERSAILLES, "THE GERMAN
GOVERNMENT RECOGNISES THE RIGHT OF THE ALLIED AND ASSOCIATED POWERS TO
BRING BEFORE MILITARY TRIBUNALS PERSONS ACCUSED OF HAVING COMMITTED
ACTS IN VIOLATION OF THE LAWS AND CUSTOMS OF WAR."  ARTICLE 228.  THIS
COURT HAS CHARACTERIZED AS "WELL-ESTABLISHED" THE "POWER OF THE
MILITARY TO EXERCISE JURISDICTION OVER MEMBERS OF THE ARMED FORCES,
THOSE DIRECTLY CONNECTED WITH SUCH FORCES, OR ENEMY BELLIGERENTS,
PRISONERS OF WAR, OR OTHERS CHARGED WITH VIOLATING THE LAWS OF WAR." 
DUNCAN V. KAHANAMOKA, 327 U.S. 304, 312, 313-314.  AND WE HAVE HELD IN
THE QUIRIN AND YAMASHITA CASES, SUPRA, THAT THE MILITARY COMMISSION IS
A LAWFUL TRIBUNAL TO ADJUDGE ENEMY OFFENSES AGAINST THE LAWS OF WAR. 
FN12 

IT IS NOT FOR US TO SAY WHETHER THESE PRISONERS WERE OR WERE NOT
GUILTY OF A WAR CRIME, OR WHETHER IF WE WERE TO RETRY THE CASE WE WOULD
AGREE TO THE FINDINGS OF FACT OR THE APPLICATION OF THE LAWS OF WAR
MADE BY THE MILITARY COMMISSION.  THE PETITION SHOWS THAT THESE
PRISONERS WERE FORMALLY ACCUSED OF VIOLATING THE LAWS OF WAR AND FULLY
INFORMED OF PARTICULARS OF THESE CHARGES.  AS WE OBSERVED IN THE
YAMASHITA CASE, "IF THE MILITARY TRIBUNALS HAVE LAWFUL AUTHORITY TO
HEAR, DECIDE AND CONDEMN, THEIR ACTION IS NOT SUBJECT TO JUDICIAL
REVIEW MERELY BECAUSE THEY HAVE MADE A WRONG DECISION ON DISPUTED
FACTS.  CORRECTION OF THEIR ERRORS OF DECISION IS NOT FOR THE COURTS
BUT FOR THE MILITARY AUTHORITIES WHICH ARE ALONE AUTHORIZED TO REVIEW
THEIR DECISIONS."  327 U.S. 1, 8.  "WE CONSIDER HERE ONLY THE LAWFUL
POWER OF THE COMMISSION TO TRY THE PETITIONER FOR THE OFFENSE
CHARGED."  IBID. 

THAT THERE IS A BASIS IN CONVENTIONAL AND LONG-ESTABLISHED LAW BY
WHICH CONDUCT ASCRIBED TO THEM MIGHT AMOUNT TO A VIOLATION SEEMS BEYOND
QUESTION.  BREACH OF THE TERMS OF AN ACT OF SURRENDER IS NO NOVELTY
AMONG WAR CRIMES.  "THAT CAPITULATIONS MUST BE SCRUPULOUSLY ADHERED TO
IS AN OLD CUSTOMARY RULE, SINCE ENACTED BY ARTICLE 35 OF THE HAGUE
REGULATIONS.  FN13  ANY ACT CONTRARY TO A CAPITULATION WOULD CONSTITUTE
AN INTERNATIONAL DELINQUENCY IF ORDERED BY A BELLIGERENT GOVERNMENT,
AND A WAR CRIME IF COMMITTED WITHOUT SUCH ORDER.  SUCH VIOLATION MAY BE
MET BY REPRISALS OR PUNISHMENT OF THE OFFENDERS AS WAR CRIMINALS."  II
OPPENHEIM, INTERNATIONAL LAW 433(6TH ED. REV., LAUTERPACHT, 1944). 
VATTEL TELLS US:  "IF ANY OF THE SUBJECTS, WHETHER MILITARY MEN OR
PRIVATE CITIZENS, OFFEND AGAINST THE TRUCE  ...  THE DELINQUENTS SHOULD
BE COMPELLED TO MAKE AMPLE COMPENSATION FOR THE DAMAGE, AND SEVERELY
PUNISHED.  ...  "  LAW OF NATIONS, BOOK III, C. XVI, SEC. 241.  AND SO
TOO, LAWRENCE, WHO SAYS, "IF  ...  THE BREACH OF THE CONDITIONS AGREED
UPON IS THE ACT OF UNAUTHORIZED INDIVIDUALS, THE SIDE THAT SUFFERS  ...
MAY DEMAND THE PUNISHMENT OF THE GUILTY PARTIES AND AN INDEMNITY FOR
ANY LOSSES IT HAS SUSTAINED."  PRINCIPLES OF INTERNATIONAL LAW (5TH
ED.)  P. 566.  IT BEING WITHIN THE JURISDICTION OF A MILITARY
COMMISSION TO TRY THE PRISONERS, IT WAS FOR IT TO DETERMINE WHETHER THE
LAWS OF WAR APPLIED AND WHETHER AN OFFENSE AGAINST THEM HAD BEEN
COMMITTED. 

WE CAN ONLY READ "(B)" TO MEAN EITHER THAT THE PRESENCE OF THE
MILITARY FORCES OF THE UNITED STATES IN CHINA AT THE TIMES IN QUESTION
WAS UNCONSTITUTIONAL OR, IF LAWFULLY THERE, THAT THEY HAD NO RIGHT
UNDER THE CONSTITUTION TO SET UP A MILITARY COMMISSION ON CHINESE
TERRITORY.  BUT IT CAN HARDLY BE MEANT THAT IT WAS UNCONSTITUTIONAL FOR
THE GOVERNMENT OF THE UNITED STATES TO WAGE A WAR IN FOREIGN PARTS. 
AMONG POWERS GRANTED TO CONGRESS BY THE CONSTITUTION IS POWER TO
PROVIDE FOR THE COMMON DEFENSE, TO DECLARE WAR, TO RAISE AND SUPPORT
ARMIES, TO PROVIDE AND MAINTAIN A NAVY, AND TO MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES.  ART. I, SEC.
8, CONST.  IT ALSO GIVES POWER TO MAKE RULES CONCERNING CAPTURES ON
LAND AND WATER, IBID., WHICH THIS COURT HAS CONSTRUED AS AN INDEPENDENT
SUBSTANTIVE POWER.  BROWN V. UNITED STATES, 8 CRANCH 110, 126.  INDEED,
OUT OF SEVENTEEN SPECIFIC PARAGRAPHS OF CONGRESSIONAL POWER, EIGHT OF
THEM ARE DEVOTED IN WHOLE OR IN PART TO SPECIFICATION OF POWERS
CONNECTED WITH WARFARE.  THE FIRST OF THE ENUMERATED POWERS OF THE
PRESIDENT IS THAT HE SHALL BE COMMANDER-IN-CHIEF OF THE ARMY AND NAVY
OF THE UNITED STATES.  ART. II, SEC. 2, CONST.  AND, OF COURSE, GRANT
OF WAR POWER INCLUDES ALL THAT IS NECESSARY AND PROPER FOR CARRYING
THESE POWERS INTO EXECUTION. 

CERTAINLY IT IS NOT THE FUNCTION OF THE JUDICIARY TO ENTERTAIN
PRIVATE LITIGATION - EVEN BY A CITIZEN - WHICH CHALLENGES THE LEGALITY,
THE WISDOM, OR THE PROPRIETY OF THE COMMANDER-IN-CHIEF IN SENDING OUR
ARMED FORCES ABROAD OR TO ANY PARTICULAR REGION.  CHINA APPEARS TO HAVE
FULLY CONSENTED TO THE TRIAL WITHIN HER TERRITORIES AND, IF CHINA HAD
COMPLAINT AT THE PRESENCE OF AMERICAN FORCES THERE, CHINA'S GRIEVANCE
DOES NOT BECOME THESE PRISONERS' RIGHT.  THE ISSUE TENDERED BY "(B)"
INVOLVES A CHALLENGE TO CONDUCT OF DIPLOMATIC AND FOREIGN AFFAIRS, FOR
WHICH THE PRESIDENT IS EXCLUSIVELY RESPONSIBLE.  UNITED STATES V.
CURTISS-WRIGHT CORP., 299 U.S. 304; CHICAGO & SOUTHERN AIR LINES V.
WATERMAN STEAMSHIP CORP., 333 U.S. 103. 

THESE PRISONERS DO NOT ASSERT, AND COULD NOT, THAT ANYTHING IN THE
GENEVA CONVENTION MAKES THEM IMMUNE FROM PROSECUTION OR PUNISHMENT FOR
WAR CRIMES.  FN14  ARTICLE 75 THEREOF EXPRESSLY PROVIDES THAT A
PRISONER OF WAR MAY BE DETAINED UNTIL THE END OF SUCH PROCEEDINGS AND,
IF NECESSARY, UNTIL THE EXPIRATION OF THE PUNISHMENT.  47 STAT. 2021,
2055. 

THE PETITION, HOWEVER, MAKES TWO CLAIMS IN THE NATURE OF PROCEDURAL
IRREGULARITIES SAID TO DEPRIVE THE MILITARY COMMISSION OF
JURISDICTION.  ONE IS THAT THE UNITED STATES WAS OBLIGED TO GIVE THE
PROTECTING POWER OF GERMANY NOTICE OF THE TRIAL, AS SPECIFIED IN
ARTICLE 60 OF THE CONVENTION.  THIS CLAIM THE COURT HAS TWICE
CONSIDERED AND TWICE REJECTED, HOLDING THAT SUCH NOTICE IS REQUIRED
ONLY OF PROCEEDINGS FOR DISCIPLINARY OFFENSES COMMITTED DURING
CAPTIVITY AND NOT IN CASE OF WAR CRIMES COMMITTED BEFORE CAPTURE.  EX
PARTE QUIRIN, SUPRA; EX PARTE YAMASHITA, SUPRA. 

THE OTHER CLAIM IS THAT THEY WERE DENIED TRIAL "BY THE SAME COURTS
AND ACCORDING TO THE SAME PROCEDURE AS IN THE CASE OF PERSONS BELONGING
TO THE ARMED FORCES OF THE DETAINING POWER," REQUIRED BY ARTICLE 63 OF
THE CONVENTION.  IT MAY BE NOTED THAT NO PREJUDICIAL DISPARITY IS
POINTED OUT AS BETWEEN THE COMMISSION THAT TRIED PRISONERS AND THOSE
THAT WOULD TRY AN OFFENDING SOLDIER OF THE AMERICAN FORCES OF LIKE
RANK.  BY A PARITY OF REASONING WITH THAT IN THE FOREGOING DECISIONS,
THIS ARTICLE ALSO REFERS TO THOSE, AND ONLY TO THOSE, PROCEEDINGS FOR
DISCIPLINARY OFFENSES DURING CAPTIVITY.  NEITHER APPLIES TO A TRIAL FOR
WAR CRIMES.    WE ARE UNABLE TO FIND THAT THE PETITION ALLEGES ANY FACT
SHOWING LACK OF JURISDICTION IN THE MILITARY AUTHORITIES TO ACCUSE, TRY
AND CONDEMN THESE PRISONERS OR THAT THEY ACTED IN EXCESS OF THEIR
LAWFUL POWERS.                                        V. 

THE DISTRICT COURT DISMISSED THIS PETITION ON AUTHORITY OF AHRENS V.
CLARK, 335 U.S. 188.  THE COURT OF APPEALS CONSIDERED ONLY QUESTIONS
WHICH IT REGARDED AS RESERVED IN THAT DECISION AND IN EX PARTE ENDO,
323 U.S. 283.  THOSE CASES DEALT WITH PERSONS BOTH RESIDING AND
DETAINED WITHIN THE UNITED STATES AND WHOSE CAPACITY AND STANDING TO
INVOKE THE PROCESS OF FEDERAL COURTS SOMEWHERE WAS UNQUESTIONED.  THE
ISSUE WAS WHERE. 

SINCE IN THE PRESENT APPLICATION WE FIND NO BASIS FOR INVOKING
FEDERAL JUDICIAL POWER IN ANY DISTRICT, WE NEED NOT DEBATE AS TO WHERE,
IF THE CASE WERE OTHERWISE, THE PETITION SHOULD BE FILED. 

FOR REASONS STATED, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED
AND THE JUDGMENT OF THE DISTRICT COURT DISMISSING THE PETITION IS
AFFIRMED.  REVERSED. 

FN1  FROM JANUARY 1948 TO TODAY, MOTIONS FOR LEAVE TO FILE PETITIONS
FOR HABEAS CORPUS IN THIS COURT, AND APPLICATIONS TREATED BY THE COURT
AS SUCH, ON BEHALF OF OVER 200 GERMAN ENEMY ALIENS CONFINED BY AMERICAN
MILITARY AUTHORITIES ABROAD WERE FILED AND DENIED.  BRANDT V. UNITED
STATES, AND 13 COMPANION CASES, 333 U.S. 836; IN RE EICHEL (ONE
PETITION ON BEHALF OF THREE PERSONS), 333 U.S. 865; EVERETT V. TRUMAN
(ONE PETITION ON BEHALF OF 74 PERSONS), 334 U.S. 824; IN RE KRAUTWURST,
AND 11 COMPANION CASES, 334 U.S. 826; IN RE EHLEN "ET AL.," AND IN RE
GIRKE "ET AL.," 334 U.S. 836; IN RE GRONWALD "ET AL.," 334 U.S. 857; IN
RE STATTMANN, AND 3 COMPANION CASES, 335 U.S. 805; IN RE VETTER, AND 6
COMPANION CASES, 335 U.S. 841; IN RE ECKSTEIN, 335 U.S. 851; IN RE
HEIM, 335 U.S. 856; IN RE DAMMANN, AND 4 COMPANION CASES, 336 U.S. 922
923; IN RE MUHLBAUER, AND 57 COMPANION CASES, COVERING AT LEAST 80
PERSONS, 336 U.S. 964; IN RE FELSCH, 337 U.S. 953; IN RE BUERGER, 338
U.S. 884; IN RE HANS, 339 U.S. 976; IN RE SCHMIDT, 339 U.S. 976;
LAMMERS V. UNITED STATES, 339 U.S. 976.  AND SEE ALSO MILCH V. UNITED
STATES, 332 U.S. 789. 

THESE CASES AND THE VARIETY OF QUESTIONS THEY RAISED ARE ANALYZED AND
DISCUSSED BY FAIRMAN, SOME NEW PROBLEMS OF THE CONSTITUTION FOLLOWING
THE FLAG, 1 STANFORD L. REV. 587. 

FN2  "  ...  IN THE PRIMARY MEANING OF THE WORDS, AN ALIEN FRIEND IS
THE SUBJECT OF A FOREIGN STATE AT PEACE WITH THE UNITED STATES; AN
ALIEN ENEMY IS THE SUBJECT OF A FOREIGN STATE AT WAR WITH THE UNITED
STATES (1 KENT COMM., P. 55; 2 HALLECK INT. L. (REV. 1908), P. 1; HALL
INT. LAW (7TH ED.), P. 403, SEC. 126; BATY & MORGAN WAR:  ITS CONDUCT
AND LEGAL RESULTS, P. 247; 1 HALSBURY LAWS OF ENGLAND, P. 310;
SYLVESTER'S CASE, 7 MOD. 150; THE ROUMANIAN, 1915, PROB.  DIV.  26;
AFFD., 1916, 1 A.C. 124; GRISWOLD V. WADDINGTON, 16 JOHNS.  437(438),
448; WHITE V. BURNLEY, 20 HOW.  (U.S.)  235, 249; THE BENITO ESTENGER,
176 U.S. 568, 571; KERSHAW V. KELSEY, 100 MASS. 561; SO ALL THE
LEXICOGRAPHERS, AS, E.G., WEBSTER, MURRAY, ABBOTT, BLACK, BOUVIER)  ...
"  CARDOZO, J. IN TECHT V. HUGHES, 229 N.Y. 222, 229, 128 N.E. 185,
186. 

FN3  FOR CASES IN LOWER COURTS, SEE NOTE, 18 GEO. WASH. L. REV. 410. 

FN4  "WHENEVER IT IS MADE KNOWN TO THE PRESIDENT THAT ANY CITIZEN OF
THE UNITED STATES HAS BEEN UNJUSTLY DEPRIVED OF HIS LIBERTY BY OR UNDER
THE AUTHORITY OF ANY FOREIGN GOVERNMENT, IT SHALL BE THE DUTY OF THE
PRESIDENT FORTHWITH TO DEMAND OF THAT GOVERNMENT THE REASONS OF SUCH
IMPRISONMENT; AND IF IT APPEARS TO BE WRONGFUL AND IN VIOLATION OF THE
RIGHTS OF AMERICAN CITIZENSHIP, THE PRESIDENT SHALL FORTHWITH DEMAND
THE RELEASE OF SUCH CITIZEN, AND IF THE RELEASE SO DEMANDED IS
UNREASONABLY DELAYED OR REFUSED, THE PRESIDENT SHALL USE SUCH MEANS,
NOT AMOUNTING TO ACTS OF WAR, AS HE MAY THINK NECESSARY AND PROPER TO
OBTAIN OR EFFECTUATE THE RELEASE; AND ALL THE FACTS AND PROCEEDINGS
RELATIVE THERETO SHALL AS SOON AS PRACTICABLE BE COMMUNICATED BY THE
PRESIDENT TO CONGRESS."  15 STAT. 224, 8 U.S.C. SEC. 903B. 

FN5  SEE DELANEY, THE ALIEN ENEMY AND THE DRAFT, 12 BROOKLYN L. REV.
91. 

FN6  "  ...  IN 1798, THE 5TH CONGRESS PASSED THREE ACTS IN RAPID
SUCCESSION, 'AN ACT CONCERNING ALIENS,' APPROVED JUNE 25, 1798(1 STAT.
570), 'AN ACT RESPECTING ALIEN ENEMIES,' APPROVED JULY 6, 1798(1 STAT.
577, 50 U.S.C.A. SEC. 21 ET SEQ.), AND 'AN ACT IN ADDITION TO THE ACT,
ENTITLED "AN ACT FOR THE PUNISHMENT OF CERTAIN CRIMES AGAINST THE
UNITED STATES,"' APPROVED JULY 14, 1798.  (1 STAT. 596.)  THE FIRST AND
LAST WERE THE ALIEN AND SEDITION ACTS, VIGOROUSLY ATTACKED IN CONGRESS
AND BY THE VIRGINIA AND KENTUCKY RESOLUTIONS AS UNCONSTITUTIONAL.  BUT
THE MEMBERS OF CONGRESS WHO VIGOROUSLY FOUGHT THE ALIEN ACT SAW NO
OBJECTION TO THE ALIEN ENEMY ACT.  (8 ANNALS OF CONG. 2035(5TH CONG.,
1798)).  IN FACT, ALBERT GALLATIN, WHO LED THAT OPPOSITION, WAS
EMPHATIC IN DISTINGUISHING BETWEEN THE TWO BILLS AND IN AFFIRMING THE
CONSTITUTIONAL POWER OF CONGRESS OVER ALIEN ENEMIES AS PART OF THE
POWER TO DECLARE WAR.  (ID. AT 1980.)  JAMES MADISON WAS THE AUTHOR OF
THE VIRGINIA RESOLUTIONS, AND IN HIS REPORT TO THE VIRGINIA HOUSE OF
DELEGATES THE ENSUING YEAR AFTER THE DELUGE OF CONTROVERSY, HE
CAREFULLY AND WITH SOME TARTNESS ASSERTED A DISTINCTION BETWEEN ALIEN
MEMBERS OF A HOSTILE NATION AND ALIEN MEMBERS OF A FRIENDLY NATION,
DISAVOWED ANY RELATION OF THE RESOLUTIONS TO ALIEN ENEMIES, AND
DECLARED, 'WITH RESPECT TO ALIEN ENEMIES, NO DOUBT HAS BEEN INTIMATED
AS TO THE FEDERAL AUTHORITY OVER THEM; THE CONSTITUTION HAVING
EXPRESSLY DELEGATED TO CONGRESS THE POWER TO DECLARE WAR AGAINST ANY
NATION, AND OF COURSE TO TREAT IT AND ALL ITS MEMBERS AS ENEMIES.' 
(MADISON'S REPORT, 4 ELLIOT'S DEB.  546, 554(1800).)  THOMAS JEFFERSON
WROTE THE KENTUCKY RESOLUTIONS, AND HE WAS METICULOUS IN IDENTIFYING
THE ACT UNDER ATTACK AS THE ALIEN ACT 'WHICH ASSUMES POWER OVER ALIEN
FRIENDS.'  (KENTUCKY RESOLUTIONS OF 1798 AND 1799, 4 ELLIOT'S DEB. 
540, 541.)  IT IS CERTAIN THAT IN THE WHITE LIGHT WHICH BEAT ABOUT THE
SUBJECT IN 1798, IF THERE HAD BEEN THE SLIGHTEST QUESTION IN THE MINDS
OF THE AUTHORS OF THE CONSTITUTION OR THEIR CONTEMPORARIES CONCERNING
THE CONSTITUTIONALITY OF THE ALIEN ENEMY ACT, IT WOULD HAVE APPEARED. 
NONE DID. 

"THE COURTS, IN AN UNBROKEN LINE OF CASES FROM FRIES' CASE (CASE OF
FRIES, C.C.D. PA. 1799, 9 FED. CAS. AT PAGES 826, 830 ET SEQ., NO.
5,126), IN 1799 TO SCHWARZKOPF'S CASE (UNITED STATES EX REL.
SCHWARZKOPF V. UHL, 2 CIR., 1943, 137 F.2D 898) IN 1943, HAVE ASSERTED
OR ASSUMED THE VALIDITY OF THE ACT AND BASED NUMEROUS DECISIONS UPON
THE ASSUMPTION.  (BROWN V. UNITED STATES, 1814, 8 CRANCH 110, 3 L. ED.
504; DE LACEY V. UNITED STATES, 9 CIR., 1918, 249 F. 625, L.R.A. 1918E,
1011; GRAHL V. UNITED STATES, 7 CIR., 1919, 261 F. 487; LOCKINGTON'S
CASE, BRIGHTLY (PA., 1813) 269, 283; LOCKINGTON V. SMITH, C.C.D. PA.,
1817, 15 FED. CAS. PAGE 758, NO. 8,448; EX PARTE GRABER, D.C.N.D. ALA.
1918, 247 F. 882; MINOTTO V. BRADLEY, D.C.N.D. ILL. 1918, 252 F. 600;
EX PARTE FRONKLIN, D.C. MISS.  1918, 253 F. 984; EX PARTE RISSE,
D.C.S.N.Y. 1919, 257 F. 102; EX PARTE GILROY, D.C.S.D.N.Y. 1919, 257 F.
110.)  THE JUDICIAL VIEW HAS BEEN WITHOUT DISSENT. 

"AT COMMON LAW 'ALIEN ENEMIES HAVE NO RIGHTS, NO PRIVILEGES, UNLESS
BY THE KING'S SPECIAL FAVOUR, DURING THE TIME OF WAR.'  (1 BLACKSTONE*
372, 373.)"  PRETTYMAN, J. IN CITIZENS PROTECTIVE LEAGUE V. CLARK, 81
U.S. APP. D.C. 116, 119-120, 155 F.2D 290, 293. 

FN7  SEE ALSO NOTES, 22 SO. CALIF. L. REV. 307; 60 HARV. L. REV. 456;
47 MICH. L. REV. 404; 17 GEO. WASH. L. REV. 578; 27 N.C.L. REV. 238; 34
CORNELL L.Q. 425.  IN THIS RESPECT OUR COURTS FOLLOW THE PRACTICE OF
THE ENGLISH COURTS.  44 AM. J. INT'L L. 382. 

FN8  SEE CASES COLLECTED IN ANNOTATIONS, 137 A.L.R. 1335, 1355; 1918B
L.R.A. 189, 191.  SEE ALSO BORCHARD, THE RIGHT OF ALIEN ENEMIES TO SUE
IN OUR COURTS, 27 YALE L.J. 104; GORDON, THE RIGHT OF ALIEN ENEMIES TO
SUE IN AMERICAN COURTS, 36 ILL. L. REV. 809, 810; BATTLE, ENEMY
LITIGANTS IN OUR COURTS, 28 VA. L. REV. 429; RYLEE, ENEMY ALIENS AS
LITIGANTS, 12 GEO. WASH. L. REV. 55, 65; NOTES, 5 U. OF DETROIT L.J.
106, 22 NEB. L. REV. 36, 30 CALIF. L. REV. 358, 54 HARV. L. REV. 350. 

FN9  28 U.S.C. SEC. 2243 PROVIDES IN PART:  "UNLESS THE APPLICATION
FOR THE WRIT AND THE RETURN PRESENT ONLY ISSUES OF LAW THE PERSON TO
WHOM THE WRIT IS DIRECTED SHALL BE REQUIRED TO PRODUCE AT THE HEARING
THE BODY OF THE PERSON DETAINED." 

FN10  "HABEAS CORPUS  ...  THOU (SHALT) HAVE THE BODY (SC. IN
COURT). 

"A WRIT ISSUING OUT OF A COURT OF JUSTICE ...  REQUIRING THE BODY OF
A PERSON TO BE BROUGHT BEFORE THE JUDGE OR INTO THE COURT FOR THE
PURPOSE SPECIFIED IN THE WRIT; ...  REQUIRING THE BODY OF A PERSON
RESTRAINED OF LIBERTY TO BE BROUGHT BEFORE THE JUDGE OR INTO COURT,
THAT THE LAWFULNESS OF THE RESTRAINT MAY BE INVESTIGATED AND
DETERMINED."  THE OXFORD ENGLISH DICTIONARY (1933), VOL. V, P. 2. 

FN11  "ALL MERCHANTS, IF THEY WERE NOT OPENLY PROHIBITED BEFORE,
SHALL HAVE THEIR SAFE AND SURE CONDUCT TO DEPART OUT OF ENGLAND, TO
COME INTO ENGLAND, TO TARRY IN, AND GO THROUGH ENGLAND, AS WELL BY LAND
AS BY WATER, TO BUY AND SELL WITHOUT ANY MANNER OF EVIL TOLLES BY THE
OLD AND RIGHTFUL CUSTOMS, EXCEPT IN TIME OF WAR; AND IF THEY BE OF A
LAND MAKING WAR AGAINST US, AND BE FOUND IN OUR REALM AT THE BEGINNING
OF THE WARS, THEY SHALL BE ATTACHED WITHOUT HARM OF BODY OR GOODS,
UNTIL IT BE KNOWN UNTO US, OR OUR CHIEF JUSTICE, HOW OUR MERCHANTS BE
ENTREATED WHO ARE THEN FOUND IN THE LAND MAKING WAR AGAINST US; AND IF
OUR MERCHANTS BE WELL INTREATED THERE, THEIRS SHALL BE LIKEWISE WITH
US."  C. 30 OF THE MAGNA CARTA, IN 3 THE COMPLETE STATUTES OF ENGLAND
(HALSBURY'S LAWS OF ENGLAND 1929) AT P. 27. 

FN12  SEE GREEN, THE MILITARY COMMISSION, 42 AM. J. INT'L L. 832. 

FN13  ARTICLE XXXV OF CONVENTION IV SIGNED AT THE HAGUE, OCTOBER 18,
1907, 36 STAT. 2277, 2305, PROVIDES:  "CAPITULATIONS AGREED UPON
BETWEEN THE CONTRACTING PARTIES MUST TAKE INTO ACCOUNT THE RULES OF
MILITARY HONOUR. 

"ONCE SETTLED, THEY MUST BE SCRUPULOUSLY OBSERVED BY BOTH PARTIES." 

AND SEE VII MOORE, INTERNATIONAL LAW DIGEST (1906) 330:  "IF THERE IS
ONE RULE OF THE LAW OF WAR MORE CLEAR AND PEREMPTORY THAN ANOTHER, IT
IS THAT COMPACTS BETWEEN ENEMIES, SUCH AS TRUCES AND CAPITULATIONS,
SHALL BE FAITHFULLY ADHERED TO; AND THEIR NON-OBSERVANCE IS DENOUNCED
AS BEING MANIFESTLY AT VARIANCE WITH THE TRUE INTEREST AND DUTY, NOT
ONLY OF THE IMMEDIATE PARTIES, BUT OF ALL MANKIND.  MR. WEBSTER, SEC.
OF STATE, TO MR. THOMPSON, APR. 5, 1842, 6 WEBSTER'S WORKS, 438." 

FN14  WE ARE NOT HOLDING THAT THESE PRISONERS HAVE NO RIGHT WHICH THE
MILITARY AUTHORITIES ARE BOUND TO RESPECT.  THE UNITED STATES, BY THE
GENEVA CONVENTION OF JULY 27, 1929, 47 STAT. 2021, CONCLUDED WITH FORTY
SIX OTHER COUNTRIES, INCLUDING THE GERMAN REICH, AN AGREEMENT UPON THE
TREATMENT TO BE ACCORDED CAPTIVES.  THESE PRISONERS CLAIM TO BE AND ARE
ENTITLED TO ITS PROTECTION.  IT IS, HOWEVER, THE OBVIOUS SCHEME OF THE
AGREEMENT THAT RESPONSIBILITY FOR OBSERVANCE AND ENFORCEMENT OF THESE
RIGHTS IS UPON POLITICAL AND MILITARY AUTHORTIES.  RIGHTS OF ALIEN
ENEMIES ARE VINDICATED UNDER IT ONLY THROUGH PROTESTS AND INTERVENTION
OF PROTECTING POWERS AS THE RIGHTS OF OUR CITIZENS AGAINST FOREIGN
GOVERNMENTS ARE VINDICATED ONLY BY PRESIDENTIAL INTERVENTION. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
BURTON CONCUR, DISSENTING. 

NOT ONLY IS UNITED STATES CITIZENSHIP A "HIGH PRIVILEGE," IT IS A
PRICELESS TREASURE.  FOR THAT CITIZENSHIP IS ENRICHED BEYOND PRICE BY
OUR GOAL OF EQUAL JUSTICE UNDER LAW - EQUAL JUSTICE NOT FOR CITIZENS
ALONE, BUT FOR ALL PERSONS COMING WITHIN THE AMBIT OF OUR POWER.  THIS
IDEAL GAVE BIRTH TO THE CONSTITUTIONAL PROVISION FOR AN INDEPENDENT
JUDICIARY WITH AUTHORITY TO CHECK ABUSES OF EXECUTIVE POWER AND TO
ISSUE WRITS OF HABEAS CORPUS LIBERATING PERSONS ILLEGALLY IMPRISONED. 
FN1 

THIS CASE TESTS THE POWER OF COURTS TO EXERCISE HABEAS CORPUS
JURISDICTION ON BEHALF OF ALIENS, IMPRISONED IN GERMANY, UNDER
SENTENCES IMPOSED BY THE EXECUTIVE THROUGH MILITARY TRIBUNALS.  THE
TRIAL COURT HELD THAT, BECAUSE THE PERSONS INVOLVED ARE IMPRISONED
OVERSEAS, IT HAD NO TERRITORIAL JURISDICTION EVEN TO CONSIDER THEIR
PETITIONS.  THE COURT OF APPEALS REVERSED THE DISTRICT COURT'S
DISMISSAL ON THE GROUND THAT THE JUDICIAL RATHER THAN THE EXECUTIVE
BRANCH OF GOVERNMENT IS VESTED WITH FINAL AUTHORITY TO DETERMINE THE
LEGALITY OF IMPRISONMENT FOR CRIME.  84 U.S. APP. D.C. 396, 174 F.2D
961.  THIS COURT NOW AFFIRMS THE DISTRICT COURT'S DISMISSAL.  I AGREE
WITH THE COURT OF APPEALS AND NEED ADD LITTLE TO THE COGENT REASONS
GIVEN FOR ITS DECISION.  THE BROAD REACH OF TODAY'S OPINION, HOWEVER,
REQUIRES DISCUSSION. 

FIRST.  IN PART IV OF ITS OPINION THE COURT APPARENTLY BASES ITS
HOLDING THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION ON ITS OWN
CONCLUSION THAT THE PETITION FOR HABEAS CORPUS FAILED TO SHOW FACTS
AUTHORIZING THE RELIEF PRAYED FOR.  BUT JURISDICTION OF A FEDERAL
DISTRICT COURT DOES NOT DEPEND ON WHETHER THE INITIAL PLEADING
SUFFICIENTLY STATES A CAUSE OF ACTION; IF A COURT HAS JURISDICTION OF
SUBJECT MATTER AND PARTIES, IT SHOULD PROCEED TO TRY THE CASE,
BEGINNING WITH CONSIDERATION OF THE PLEADINGS.  BELL V. HOOD, 327 U.S.
678, 682-683; EX PARTE KAWATO, 317 U.S. 69, 71.  FN2  THEREFORE PART IV
OF THE OPINION IS WHOLLY IRRELEVANT AND LENDS NO SUPPORT WHATEVER TO
THE COURT'S HOLDING THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION. 
MOREOVER, THE QUESTION OF WHETHER THE PETITION SHOWED ON ITS FACE THAT
THESE PRISONERS HAD VIOLATED THE LAWS OF WAR, EVEN IF IT WERE RELEVANT,
IS NOT PROPERLY BEFORE THIS COURT.  THE TRIAL COURT DID NOT REACH THAT
QUESTION BECAUSE IT CONCLUDED THAT THEIR IMPRISONMENT OUTSIDE ITS
DISTRICT BARRED IT EVEN FROM CONSIDERING THE PETITION; ITS DOORS WERE
"SUMMARILY CLOSED."  AND IN REVERSING, THE COURT OF APPEALS
SPECIFICALLY REJECTED REQUESTS THAT IT CONSIDER THE SUFFICIENCY OF THE
PETITION, PROPERLY REMANDING THE CAUSE TO THE DISTRICT COURT FOR THAT
DETERMINATION - JUST AS THIS COURT DID IN THE HOOD AND KAWATO CASES,
SUPRA. THE GOVERNMENT'S PETITION FOR CERTIORARI HERE PRESENTED NO
QUESTION EXCEPT THAT OF JURISDICTION; AND NEITHER PARTY HAS ARGUED,
ORALLY OR IN BRIEFS, THAT THIS COURT SHOULD PASS ON THE SUFFICIENCY OF
THE PETITION.  TO DECIDE THIS UNARGUED QUESTION UNDER THESE
CIRCUMSTANCES SEEMS AN UNWARRANTED AND HIGHLY IMPROPER DEVIATION FROM
ORDINARY JUDICIAL PROCEDURE.  AT THE VERY LEAST, FAIRNESS REQUIRES THAT
THE COURT HEAR ARGUMENT ON THIS POINT. 

DESPITE THESE OBJECTIONS, THE COURT NOW PROCEEDS TO FIND A "WAR
CRIME" IN THE FACT THAT AFTER GERMANY HAD SURRENDERED THESE PRISONERS
GAVE CERTAIN INFORMATION TO JAPANESE MILITARY FORCES.  I AM NOT
CONVINCED THAT THIS UNARGUED QUESTION IS CORRECTLY DECIDED.  THE
PETITION ALLEGES THAT WHEN THE INFORMATION WAS GIVEN, THE ACCUSED WERE
"UNDER THE CONTROL OF THE ARMED FORCES OF THE JAPANESE EMPIRE," IN
JAPANESE-OCCUPIED TERRITORY.  WHETHER OBEDIENCE TO COMMANDS OF THEIR
JAPANESE SUPERIORS WOULD IN ITSELF CONSTITUTE "UNLAWFUL" BELLIGERENCY
IN VIOLATION OF THE LAWS OF WAR IS NOT SO SIMPLE A QUESTION AS THE
COURT ASSUMES.  THE ALLEGED CIRCUMSTANCES, IF PROVEN, WOULD PLACE THESE
GERMANS IN MUCH THE SAME POSITION AS PATRIOTIC FRENCH, DUTCH, OR
NORWEGIAN SOLDIERS WHO FOUGHT ON WITH THE BRITISH AFTER THEIR HOMELANDS
OFFICIALLY SURRENDERED TO NAZI GERMANY.  THERE IS NOT THE SLIGHTEST
INTIMATION THAT THE ACCUSED WERE SPIES, OR ENGAGED IN CRUELTY, TORTURE,
OR ANY CONDUCT OTHER THAN THAT WHICH SOLDIERS OR CIVILIANS MIGHT
PROPERLY PERFORM WHEN ENTANGLED IN THEIR COUNTRY'S WAR.  IT MUST BE
REMEMBERED THAT LEGITIMATE "ACTS OF WARFARE," HOWEVER MURDEROUS, DO NOT
JUSTIFY CRIMINAL CONVICTION.  IN EX PARTE QUIRIN, 317 U.S. 1, 30-31, WE
CAUTIONED THAT MILITARY TRIBUNALS CAN PUNISH ONLY "UNLAWFUL"
COMBATANTS; IT IS NO "CRIME" TO BE A SOLDIER.  SEE ALSO DOW V. JOHNSON,
100 U.S. 158, 169; FORD V. SURGET, 97 U.S. 594, 605-606.  CERTAINLY
DECISIONS BY THE TRIAL COURT AND THE COURT OF APPEALS CONCERNING
APPLICABILITY OF THAT PRINCIPLE TO THESE FACTS WOULD BE HELPFUL, AS
WOULD BRIEFS AND ARGUMENTS BY THE ADVERSARY PARTIES.  IT SHOULD NOT BE
DECIDED BY THIS COURT NOW WITHOUT THAT ASSISTANCE, PARTICULARLY SINCE
FAILURE TO REMAND DEPRIVES THESE PETITIONERS OF ANY RIGHT TO MEET
ALLEGED DEFICIENCIES BY AMENDING THEIR PETITIONS. 

SECOND.  IN PARTS I, II, AND III OF ITS OPINION, THE COURT APPARENTLY
HOLDS THAT NO AMERICAN COURT CAN EVEN CONSIDER THE JURISDICTION OF THE
MILITARY TRIBUNAL TO CONVICT AND SENTENCE THESE PRISONERS FOR THE
ALLEGED CRIME.  EXCEPT INSOFAR AS THIS HOLDING DEPENDS ON THE
GRATUITOUS CONCLUSIONS IN PART IV (AND I CANNOT TELL HOW FAR IT DOES),
IT IS BASED ON THE FACTS THAT (1) THEY WERE ENEMY ALIENS WHO WERE
BELLIGERENTS WHEN CAPTURED, AND (2) THEY WERE CAPTURED, TRIED, AND
IMPRISONED OUTSIDE OUR REALM, NEVER HAVING BEEN IN THE UNITED STATES. 

THE CONTENTION THAT ENEMY ALIEN BELLIGERENTS HAVE NO STANDING
WHATEVER TO CONTEST CONVICTION FOR WAR CRIMES BY HABEAS CORPUS
PROCEEDINGS HAS TWICE BEEN EMPHATICALLY REJECTED BY A UNANIMOUS COURT. 
IN EX PARTE QUIRIN, 317 U.S. 1, WE HELD THAT STATUS AS AN ENEMY ALIEN
DID NOT FORECLOSE "CONSIDERATION BY THE COURTS OF PETITIONERS'
CONTENTIONS THAT THE CONSTITUTION AND LAWS OF THE UNITED STATES
CONSTITUTIONALLY ENACTED FORBID THEIR TRIAL BY MILITARY COMMISSION." 
ID. AT 25.  THIS WE DID IN THE FACE OF A PRESIDENTIAL PROCLAMATION
DENYING SUCH PRISONERS ACCESS TO OUR COURTS.  ONLY AFTER THUS UPHOLDING
JURISDICTION OF THE COURTS TO CONSIDER SUCH HABEAS CORPUS PETITIONS DID
WE GO ON TO DENY THOSE PARTICULAR PETITIONS UPON A FINDING THAT THE
PRISONERS HAD BEEN CONVICTED BY A MILITARY TRIBUNAL OF COMPETENT
JURISDICTION FOR CONDUCT THAT WE FOUND CONSTITUTED AN ACTUAL VIOLATION
OF THE LAW OF WAR.  SIMILARLY, IN YAMASHITA V. UNITED STATES, 327 U.S.
1, WE HELD THAT COURTS COULD INQUIRE WHETHER A MILITARY COMMISSION,
PROMPTLY AFTER HOSTILITIES HAD CEASED, HAD LAWFUL AUTHORITY TO TRY AND
CONDEMN A JAPANESE GENERAL CHARGED WITH VIOLATING THE LAW OF WAR BEFORE
HOSTILITIES HAD CEASED.  THERE WE STATED:  "(THE) EXECUTIVE BRANCH OF
THE GOVERNMENT COULD NOT, UNLESS THERE WAS SUSPENSION OF THE WRIT,
WITHDRAW FROM THE COURTS THE DUTY AND POWER TO MAKE SUCH INQUIRY INTO
THE AUTHORITY OF THE COMMISSION AS MAY BE MADE BY HABEAS CORPUS."  ID.
AT 9.  THAT WE WENT ON TO DENY THE REQUESTED WRIT, AS IN THE QUIRIN
CASE, IN NO WAY DETRACTS FROM THE CLEAR HOLDING THAT HABEAS CORPUS
JURISDICTION IS AVAILABLE EVEN TO BELLIGERENT ALIENS CONVICTED BY A
MILITARY TRIBUNAL FOR AN OFFENSE COMMITTED IN ACTUAL ACTS OF WARFARE. 

SINCE THE COURT EXPRESSLY DISAVOWS CONFLICT WITH THE QUIRIN OR
YAMASHITA DECISIONS, IT MUST BE RELYING NOT ON THE STATUS OF THESE
PETITIONERS AS ALIEN ENEMY BELLIGERENTS BUT RATHER ON THE FACT THAT
THEY WERE CAPTURED, TRIED AND IMPRISONED OUTSIDE OUR TERRITORY.  THE
COURT CANNOT, AND DESPITE ITS RHETORIC ON THE POINT DOES NOT, DENY THAT
IF THEY WERE IMPRISONED IN THE UNITED STATES OUR COURTS WOULD CLEARLY
HAVE JURISDICTION TO HEAR THEIR HABEAS CORPUS COMPLAINTS.  DOES A
PRISONER'S RIGHT TO TEST LEGALITY OF A SENTENCE THEN DEPEND ON WHERE
THE GOVERNMENT CHOOSES TO IMPRISON HIM?  CERTAINLY THE QUIRIN AND
YAMASHITA OPINIONS LEND NO SUPPORT TO THAT CONCLUSION, FOR IN UPHOLDING
JURISDICTION THEY PLACE NO RELIANCE WHATEVER ON TERRITORIAL LOCATION. 
THE COURT IS FASHIONING WHOLLY INDEFENSIBLE DOCTRINE IF IT PERMITS THE
EXECUTIVE BRANCH, BY DECIDING WHERE ITS PRISONERS WILL BE TRIED AND
IMPRISONED, TO DEPRIVE ALL FEDERAL COURTS OF THEIR POWER TO PROTECT
AGAINST A FEDERAL EXECUTIVE'S ILLEGAL INCARCERATIONS. 

IF THE OPINION THUS MEANS, AND IT APPARENTLY DOES, THAT THESE
PETITIONERS ARE DEPRIVED OF THE PRIVILEGE OF HABEAS CORPUS SOLELY
BECAUSE THEY WERE CONVICTED AND IMPRISONED OVERSEAS, THE COURT IS
ADOPTING A BROAD AND DANGEROUS PRINCIPLE.  THE RANGE OF THAT PRINCIPLE
IS UNDERLINED BY THE ARGUMENT OF THE GOVERNMENT BRIEF THAT HABEAS
CORPUS IS NOT EVEN AVAILABLE FOR AMERICAN CITIZENS CONVICTED AND
IMPRISONED IN GERMANY BY AMERICAN MILITARY TRIBUNALS.  WHILE THE COURT
WISELY DISCLAIMS ANY SUCH NECESSARY EFFECT FOR ITS HOLDING, REJECTION
OF THE GOVERNMENT'S ARGUMENT IS CERTAINLY MADE DIFFICULT BY THE LOGIC
OF TODAY'S OPINION.  CONCEIVABLY A MAJORITY MAY HEREAFTER FIND
CITIZENSHIP A SUFFICIENT SUBSTITUTE FOR TERRITORIAL JURISDICTION AND
THUS PERMIT COURTS TO PROTECT AMERICANS FROM ILLEGAL SENTENCES.  BUT
THE COURT'S OPINION INESCAPABLY DENIES COURTS POWER TO AFFORD THE LEAST
BIT OF PROTECTION FOR ANY ALIEN WHO IS SUBJECT TO OUR OCCUPATION
GOVERNMENT ABROAD, EVEN IF HE IS NEITHER ENEMY NOR BELLIGERENT AND EVEN
AFTER PEACE IS OFFICIALLY DECLARED.  FN3 

THIRD.  IT HAS ALWAYS BEEN RECOGNIZED THAT ACTUAL WARFARE CAN BE
CONDUCTED SUCCESSFULLY ONLY IF THOSE IN COMMAND ARE LEFT THE MOST AMPLE
INDEPENDENCE IN THE THEATRE OF OPERATIONS.  OUR CONSTITUTION IS NOT SO
IMPRACTICAL OR INFLEXIBLE THAT IT UNDULY RESTRICTS SUCH NECESSARY
INDEPENDENCE.  IT WOULD BE FANTASTIC TO SUGGEST THAT ALIEN ENEMIES
COULD HAIL OUR MILITARY LEADERS INTO JUDICIAL TRIBUNALS TO ACCOUNT FOR
THEIR DAY-TO-DAY ACTIVITIES ON THE BATTLEFRONT.  ACTIVE FIGHTING FORCES
MUST BE FREE TO FIGHT WHILE HOSTILITIES ARE IN PROGRESS.  BUT THAT
UNDISPUTABLE AXIOM HAS NO BEARING ON THIS CASE OR THE GENERAL PROBLEM
FROM WHICH IT ARISES. 

WHEN A FOREIGN ENEMY SURRENDERS, THE SITUATION CHANGES MARKEDLY.  IF
OUR COUNTRY DECIDES TO OCCUPY CONQUERED TERRITORY EITHER TEMPORARILY OR
PERMANENTLY, IT ASSUMES THE PROBLEM OF DECIDING HOW THE SUBJUGATED
PEOPLE WILL BE RULED, WHAT LAWS WILL GOVERN, WHO WILL PROMULGATE THEM,
AND WHAT GOVERNMENTAL AGENCY OF OURS WILL SEE THAT THEY ARE PROPERLY
ADMINISTERED.  THIS RESPONSIBILITY IMMEDIATELY RAISES QUESTIONS
CONCERNING THE EXTENT TO WHICH OUR DOMESTIC LAWS, CONSTITUTIONAL AND
STATUTORY, ARE TRANSPLANTED ABROAD.  PROBABLY NO ONE WOULD SUGGEST, AND
CERTAINLY I WOULD NOT, THAT THIS NATION EITHER MUST OR SHOULD ATTEMPT
TO APPLY EVERY CONSTITUTIONAL PROVISION OF THE BILL OF RIGHTS IN
CONTROLLING TEMPORARILY OCCUPIED COUNTRIES.  BUT THAT DOES NOT MEAN
THAT THE CONSTITUTION IS WHOLLY INAPPLICABLE IN FOREIGN TERRITORIES
THAT WE OCCUPY AND GOVERN.  SEE DOWNES V. BIDWELL, 182 U.S. 244. 

THE QUESTION HERE INVOLVES A FAR NARROWER ISSUE.  SPRINGING FROM
RECOGNITION THAT OUR GOVERNMENT IS COMPOSED OF THREE SEPARATE AND
INDEPENDENT BRANCHES, IT IS WHETHER THE JUDICIARY HAS POWER IN HABEAS
CORPUS PROCEEDINGS TO TEST THE LEGALITY OF CRIMINAL SENTENCES IMPOSED
BY THE EXECUTIVE THROUGH MILITARY TRIBUNALS IN A COUNTRY WHICH WE HAVE
OCCUPIED FOR YEARS.  THE EXTENT OF SUCH A JUDICIAL TEST OF LEGALITY
UNDER CHARGES LIKE THESE, AS WE HAVE ALREADY HELD IN THE YAMASHITA
CASE, IS OF MOST LIMITED SCOPE.  WE ASK ONLY WHETHER THE MILITARY
TRIBUNAL WAS LEGALLY CONSTITUTED AND WHETHER IT HAD JURISDICTION TO
IMPOSE PUNISHMENT FOR THE CONDUCT CHARGED.  SUCH A LIMITED HABEAS
CORPUS REVIEW IS THE RIGHT OF EVERY CITIZEN OF THE UNITED STATES,
CIVILIAN OR SOLDIER (UNLESS THE COURT ADOPTS THE GOVERNMENT'S ARGUMENT
THAT AMERICANS IMPRISONED ABROAD HAVE LOST THEIR RIGHT TO HABEAS
CORPUS).  ANY CONTENTION THAT A SIMILARLY LIMITED USE OF HABEAS CORPUS
FOR THESE PRISONERS WOULD SOMEHOW GIVE THEM A PREFERRED POSITION IN THE
LAW CANNOT BE TAKEN SERIOUSLY. 

THOUGH THE SCOPE OF HABEAS CORPUS REVIEW OF MILITARY TRIBUNAL
SENTENCES IS NARROW, I THINK IT SHOULD NOT BE DENIED TO THESE
PETITIONERS AND OTHERS LIKE THEM.  WE CONTROL THAT PART OF GERMANY WE
OCCUPY.  THESE PRISONERS WERE CONVICTED BY OUR OWN MILITARY TRIBUNALS
UNDER OUR OWN ARTICLES OF WAR, YEARS AFTER HOSTILITIES HAD CEASED. 
HOWEVER ILLEGAL THEIR SENTENCES MIGHT BE, THEY CAN EXPECT NO RELIEF
FROM GERMAN COURTS OR ANY OTHER BRANCH OF THE GERMAN GOVERNMENT WE
PERMIT TO FUNCTION.  ONLY OUR OWN COURTS CAN INQUIRE INTO THE LEGALITY
OF THEIR IMPRISONMENT.  PERHAPS, AS SOME NATIONS BELIEVE, THERE IS
MERIT IN LEAVING THE ADMINISTRATION OF CRIMINAL LAWS TO EXECUTIVE AND
MILITARY AGENCIES COMPLETELY FREE FROM JUDICIAL SCRUTINY.  OUR
CONSTITUTION HAS EMPHATICALLY EXPRESSED A CONTRARY POLICY. 

AS THE COURT POINTS OUT, PAUL WAS FORTUNATE ENOUGH TO BE A ROMAN
CITIZEN WHEN HE WAS MADE THE VICTIM OF PREJUDICIAL CHARGES; THAT
PRIVILEGED STATUS AFFORDED HIM AN APPEAL TO ROME, WITH A RIGHT TO MEET
HIS "ACCUSERS FACE TO FACE."  ACTS 25:16.  BUT OTHER MARTYRIZED
DISCIPLES WERE NOT SO FORTUNATE.  OUR CONSTITUTION HAS LED PEOPLE
EVERYWHERE TO HOPE AND BELIEVE THAT WHEREVER OUR LAWS CONTROL, ALL
PEOPLE, WHETHER OUR CITIZENS OR NOT, WOULD HAVE AN EQUAL CHANCE BEFORE
THE BAR OF CRIMINAL JUSTICE. 

CONQUEST BY THE UNITED STATES, UNLIKE CONQUEST BY MANY OTHER NATIONS,
DOES NOT MEAN TYRANNY.  FOR OUR PEOPLE "CHOOSE TO MAINTAIN THEIR
GREATNESS BY JUSTICE RATHER THAN VIOLENCE."  FN4  OUR CONSTITUTIONAL
PRINCIPLES ARE SUCH THAT THEIR MANDATE OF EQUAL JUSTICE UNDER LAW
SHOULD BE APPLIED AS WELL WHEN WE OCCUPY LANDS ACROSS THE SEA AS WHEN
OUR FLAG FLEW ONLY OVER THIRTEEN COLONIES.  OUR NATION PROCLAIMS A
BELIEF IN THE DIGNITY OF HUMAN BEINGS AS SUCH, NO MATTER WHAT THEIR
NATIONALITY OR WHERE THEY HAPPEN TO LIVE.  HABEAS CORPUS, AS AN
INSTRUMENT TO PROTECT AGAINST ILLEGAL IMPRISONMENT, IS WRITTEN INTO THE
CONSTITUTION.  ITS USE BY COURTS CANNOT IN MY JUDGMENT BE
CONSTITUTIONALLY ABRIDGED BY EXECUTIVE OR BY CONGRESS.  I WOULD HOLD
THAT OUR COURTS CAN EXERCISE IT WHENEVER ANY UNITED STATES OFFICIAL
ILLEGALLY IMPRISONS ANY PERSON IN ANY LAND WE GOVERN.  FN5  COURTS
SHOULD NOT FOR ANY REASON ABDICATE THIS, THE LOFTIEST POWER WITH WHICH
THE CONSTITUTION HAS ENDOWED THEM. 

FN1  ARTICLE I, SEC. 9, CL. 2 OF THE CONSTITUTION PROVIDES: 

"THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED,
UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC SAFETY MAY
REQUIRE IT." 

FN2  CASES ARE OCCASIONALLY DISMISSED WHERE THE CLAIMS ARE "WHOLLY
INSUBSTANTIAL AND FRIVOLOUS," BELL V. HOOD, SUPRA, BUT THE VERY
COMPLEXITY OF THIS COURT'S OPINION BELIES ANY SUCH CLASSIFICATION OF
THIS PETITION. 

FN3  THE COURT INDICATES THAT NOT EVEN TODAY CAN A NONRESIDENT GERMAN
OR JAPANESE BRING EVEN A CIVIL SUIT IN AMERICAN COURTS.  WITH THIS
RESTRICTIVE PHILOSOPHY COMPARE EX PARTE KAWATO, 317 U.S. 69; SEE ALSO
MCKENNA V. FISK, 1 HOW.  241, 249. 

FN4  THIS GOAL FOR GOVERNMENT IS NOT NEW.  ACCORDING TO TACITUS, IT
WAS ACHIEVED BY ANOTHER PEOPLE ALMOST 2,000 YEARS AGO.  SEE 2 WORKS OF
TACITUS 326(OXFORD TRANS., NEW YORK, 1869). 

FN5  SEE THE CONCURRING OPINION OF MR. JUSTICE DOUGLAS IN HIROTA V.
MACARTHUR, 338 U.S. 197, 199. 
..END :















UNITED STATES V. KANSAS CITY INS. CO., 339 U.S. 799 


NO. 1.  ARGUED OCTOBER 20, 1948.  - REARGUED MARCH 29, 1950.  - DECIDED
JUNE 5, 1950.  - 109 CT. CL. 555, 74 F.SUPP.  653, AFFIRMED. 


RESPONDENT OWNED FARM LAND IN MISSOURI ON A NONNAVIGABLE TRIBUTARY OF
A NAVIGABLE RIVER, THE LAND NOT BEING IN ANY SENSE WITHIN THE BED OF
THE RIVER.  IN THE INTEREST OF NAVIGATION, THE UNITED STATES
CONSTRUCTED ON THE RIVER A DAM WHICH MAINTAINED THE RIVER CONTINUOUSLY
AT ORDINARY HIGH-WATER LEVEL.  AS A RESULT, THE AGRICULTURAL VALUE OF
PART OF RESPONDENT'S LAND WAS DESTROYED BY UNDERFLOWING.  HELD: 

1.  THE UNITED STATES WAS LIABLE FOR THE DESTRUCTION OF THE
AGRICULTURAL VALUE OF THE LAND ABOVE THE ORDINARY HIGH-WATER MARK OF
THE RIVER, EVEN THOUGH MAINTENANCE OF THE RIVER CONTINUOUSLY AT THAT
MARK WAS IN THE INTEREST OF NAVIGATION.  PP. 804-808. 

(A)  THE ORDINARY HIGH-WATER MARK IS THE LIMIT OF THE BED OF THE
STREAM; AND THE NAVIGATION SERVITUDE DOES NOT EXTEND TO RESPONDENT'S
LAND BEYOND THE BED OF THE NAVIGABLE RIVER.  PP. 805-808. 

2.  THE DESTRUCTION OF THE AGRICULTURAL VALUE OF THE LAND WAS A
TAKING OF PRIVATE PROPERTY FOR PUBLIC USE WITHIN THE MEANING OF THE
FIFTH AMENDMENT OF THE FEDERAL CONSTITUTION, EVEN THOUGH THERE WAS NO
ACTUAL OVERFLOWING OF THE LAND.  PP. 809-811. 

3.  THE FINDINGS OF THE COURT OF CLAIMS IN THIS CASE SUFFICIENTLY
DESCRIBE THE INTEREST TAKEN BY THE UNITED STATES AND FOR WHICH AN AWARD
OF COMPENSATION WAS MADE TO RESPONDENT.  PP. 811-812. 

UNITED STATES V. KANSAS CITY LIFE INSURANCE CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS MADE AN AWARD OF COMPENSATION TO RESPONDENT ON A
CLAIM AGAINST THE UNITED STATES FOR A TAKING OF PROPERTY OF THE
RESPONDENT FOR PUBLIC USE.  109 CT. CL. 555, 74 F.SUPP.  653.  THIS
COURT GRANTED CERTIORARI.  334 U.S. 810.  AFFIRMED, P. 812. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, KANSAS CITY LIFE INSURANCE COMPANY, OBTAINED JUDGMENT
IN THE COURT OF CLAIMS AGAINST THE UNITED STATES FOR $22,519.60, WITH
INTEREST FROM AUGUST 8, 1938.  109 CT. CL. 555, 74 F.SUPP.  653.  THIS
SUM WAS AWARDED AS JUST COMPENSATION FOR THE DESTRUCTION OF THE
AGRICULTURAL VALUE OF RESPONDENT'S FARM LAND BY THE UNITED STATES IN
ARTIFICIALLY MAINTAINING THE MISSISSIPPI RIVER IN THAT VICINITY
CONTINUOUSLY AT ORDINARY HIGH-WATER LEVEL.  THE LAND WAS NOT IN ANY
SENSE WITHIN THE BED OF THE RIVER.  IT WAS ONE AND ONE-HALF MILES FROM
THE RIVER ON A NONNAVIGABLE TRIBUTARY CREEK.  ITS SURFACE WAS A FEW
FEET ABOVE THE ORDINARY HIGH-WATER LEVEL OF BOTH THE RIVER AND THE
CREEK.  THE UNITED STATES, HOWEVER, CONTENDED THAT BECAUSE IT
MAINTAINED THE RIVER AT THIS LEVEL IN THE INTEREST OF NAVIGATION IT
NEED NOT PAY FOR THE RESULTING DESTRUCTION OF THE VALUE OF THE
RESPONDENT'S LAND.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF
THE CONSTITUTIONAL QUESTIONS RAISED.  334 U.S. 810.  THE CASE WAS
ARGUED AT THE 1948 TERM AND REARGUED AT THIS TERM. 

TWO PRINCIPAL ISSUES ARE PRESENTED.  THE FIRST IS WHETHER THE UNITED
STATES, IN THE EXERCISE OF ITS POWER TO REGULATE COMMERCE, MAY RAISE A
NAVIGABLE STREAM TO ITS ORDINARY HIGH-WATER MARK AND MAINTAIN IT
CONTINUOUSLY AT THAT LEVEL IN THE INTEREST OF NAVIGATION, WITHOUT
LIABILITY FOR THE EFFECTS OF THAT CHANGE UPON PRIVATE PROPERTY BEYOND
THE BED OF THE STREAM.  IF THE UNITED STATES MAY NOT DO SO, WITHOUT
SUCH LIABILITY, WE REACH THE OTHER ISSUE:  WHETHER THE RESULTING
DESTRUCTION OF THE AGRICULTURAL VALUE OF THE LAND AFFECTED, WITHOUT
ACTUALLY OVERFLOWING IT, IS A TAKING OF PRIVATE PROPERTY WITHIN THE
MEANING OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES.  WE DECIDE BOTH ISSUES IN FAVOR OF THE RESPONDENT, THE FIRST IN
THE NEGATIVE, THE SECOND IN THE AFFIRMATIVE. 

THE MATERIAL FACTS FOUND BY THE COURT BELOW INCLUDE THE FOLLOWING: 

RESPONDENT IS THE OWNER OF 1,710 ACRES OF FARM LAND IN MISSOURI,
HAVING AN ELEVATION OF 422.7 TO 428 FEET ABOVE SEA LEVEL.  THE LAND
BORDERS ON DARDENNE CREEK, A NONNAVIGABLE TRIBUTARY ENTERING THE
NAVIGABLE MISSISSIPPI RIVER ONE AND ONE-HALF MILES BELOW THE FARM.  THE
AGRICULTURAL VALUE OF THE LAND HAS BEEN LARGELY DESTROYED BY THE
CONSTRUCTION AND OPERATION BY THE UNITED STATES OF LOCK AND DAM NO. 26
ON THE MISSISSIPPI AT ALTON, ILLINOIS, 25 MILES BELOW DARDENNE CREEK. 
THE UNITED STATES HAS OPERATED THIS DAM SINCE AUGUST 8, 1938, AS PART
OF A SYSTEM OF RIVER IMPROVEMENTS TO PROVIDE A NAVIGABLE CHANNEL IN THE
MISSISSIPPI BETWEEN MINNEAPOLIS AND THE MOUTH OF THE MISSOURI.  FN1
THE EFFECT OF THE DAM HAS BEEN TO RAISE THE LEVEL OF THE MISSISSIPPI AT
THE MOUTH OF DARDENNE CREEK TO A PERMANENT STAGE OF 420.4 FEET ABOVE
SEA LEVEL.  THIS WAS ITS PREVIOUSLY ASCERTAINED ORDINARY HIGH-WATER
MARK. 

BEFORE THE EFFECT OF THE DAM WAS FELT, THE RESPONDENT'S LAND DRAINED
ADEQUATELY THROUGH ITS SUBSOIL AND A SIMPLE SYSTEM OF DITCHES AND PIPES
EMPTYING INTO THE CREEK.  FN2  IT WAS HIGHLY PRODUCTIVE.  WHEN,
HOWEVER, THE DAM RAISED THE RIVER AND THE CREEK TO 420.4 FEET AND
MAINTAINED THE WATER CONTINOUSLY AT THAT LEVEL, THIS DESTROYED THE
AGRICULTURAL VALUE OF THE RESPONDENT'S LAND AT SURFACE ELEVATIONS
BETWEEN 423.5 AND 425 FEET.  FN3  THE DAMAGE WAS CAUSED BY THE
UNDERFLOWING OF THE LAND.  FN4  THIS UNDERSURFACE INVASION WAS
SUBSTANTIALLY AS DESTRUCTIVE AS IF THE LAND HAD BEEN SUBMERGED.  THE
WATER TABLE WAS RAISED BOTH BY THE PERCOLATION OF THE WATER WHICH ROSE
AND FELL WITH THE RIVER AND BY THE RESULTING BLOCKADE OF THE DRAINAGE
OF THE LAND'S SURFACE AND SUBSURFACE WATER.  FN5  THE REDUCTION OF
$22,519.60 IN THE MARKET VALUE OF THE LAND IS NOT DISPUTED. 

IT IS WELL SETTLED THAT, UNDER THE COMMERCE CLAUSE, U.S. CONST. ART.
I, SEC. 8, CL. 3, THE UNITED STATES HAS THE POWER TO IMPROVE ITS
NAVIGABLE WATERS IN THE INTEREST OF NAVIGATION WITHOUT LIABILITY FOR
DAMAGES RESULTING TO PRIVATE PROPERTY WITHIN THE BED OF THE NAVIGABLE
STREAM. 

"THE DOMINANT POWER OF THE FEDERAL GOVERNMENT, AS HAS BEEN REPEATEDLY
HELD, EXTENDS TO THE ENTIRE BED OF A STREAM, WHICH INCLUDES THE LANDS
BELOW ORDINARY HIGH-WATER MARK.  THE EXERCISE OF THE POWER WITHIN THESE
LIMITS IS NOT AN INVASION OF ANY PRIVATE PROPERTY RIGHT IN SUCH LANDS
FOR WHICH THE UNITED STATES MUST MAKE COMPENSATION.  (CITING CASES.) 
THE DAMAGE SUSTAINED RESULTS NOT FROM A TAKING OF THE RIPARIAN OWNER'S
PROPERTY IN THE STREAM BED, BUT FROM THE LAWFUL EXERCISE OF A POWER TO
WHICH THAT PROPERTY HAS ALWAYS BEEN SUBJECT."  UNITED STATES V.
CHICAGO, M., ST. P. & P.R. CO., 312 U.S. 592, 596-597.  FN6 

THE ORDINARY HIGH-WATER MARK HAS BEEN ACCEPTED AS THE LIMIT OF THE
BED OF THE STREAM.  IN UNITED STATES V. WILLOW RIVER POWER CO., 324
U.S. 499, 509, WHERE COMPENSATION WAS DENIED, THIS COURT SAID:  "HIGH
WATER MARK BOUNDS THE BED OF THE RIVER.  LANDS ABOVE IT ARE FAST LANDS
AND TO FLOOD THEM IS A TAKING FOR WHICH COMPENSATION MUST BE PAID.  BUT
THE AWARD HERE DOES NOT PURPORT TO COMPENSATE A FLOODING OF FAST LANDS
OR IMPAIRMENT OF THEIR VALUE.  LANDS BELOW THAT LEVEL ARE SUBJECT
ALWAYS TO A DOMINANT SERVITUDE IN THE INTERESTS OF NAVIGATION AND ITS
EXERCISE CALLS FOR NO COMPENSATION." 

THESE CASES POINT THE WAY TO OUR DECISION IN THE INSTANT CASE.  IN
THE CHICAGO CASE, SUPRA, THE UNITED STATES INSTITUTED CONDEMNATION
PROCEEDINGS TO ACQUIRE THE RIGHT TO BACK THE WATERS OF THE MISSISSIPPI
OVER A RIGHT OF WAY AND AGAINST AN EMBANKMENT OWNED BY THE RESPONDENT
RAILROAD AND TELEGRAPH COMPANIES.  THE PRECISE ISSUE WAS THE
GOVERNMENT'S LIABILITY FOR DAMAGE DONE TO THAT EMBANKMENT BY RAISING
THE WATERS OF THE RIVER TO AND ABOVE THEIR ORDINARY HIGH-WATER MARK. 
THE RESPONDENTS CONTENDED THAT THE DAMAGE EVEN TO THAT PART OF THE
EMBANKMENT WHICH STOOD ON LAND WITHIN THE BED OF THE RIVER WAS
COMPENSABLE AND THE COURT OF APPEALS SO HELD.  113 F.2D 919.  THIS
COURT REVERSED THAT JUDGMENT FOR THE REASON THAT ALL LAND WITHIN THE
BED OF A NAVIGABLE STREAM IS SUBJECT TO A SERVITUDE IN FAVOR OF THE
UNITED STATES, RELIEVING IT FROM LIABILITY FOR DAMAGES TO SUCH LAND
RESULTING FROM GOVERNMENTAL ACTION IN THE INTEREST OF NAVIGATION.  IN
ADDITION, THIS COURT REMANDED THE CASE FOR DETERMINATION OF THE
DISPUTED CLAIM OF THE RESPONDENTS THAT THREE OTHER SEGMENTS OF THEIR
EMBANKMENT WERE ON LAND WHICH WAS ABOVE THE ORDINARY HIGH-WATER MARK OF
THE RIVER AND THAT TWO OF THOSE SEGMENTS ABUTTED NOT ON THE MISSISSIPPI
RIVER BUT ON A NONNAVIGABLE TRIBUTARY.  312 U.S. AT P. 599.  THE ORDER
TO DETERMINE THAT QUESTION INDICATES THAT THE BASIS OF THE DECISION WAS
THAT THE NAVIGATION SERVITUDE DOES NOT EXTEND TO LAND BEYOND THE BED OF
THE NAVIGABLE RIVER. 

THE OPINION IN THE CHICAGO CASE ALSO SHEDS LIGHT UPON THE EARLIER
CASES.  IT LIMITS THE DECISIONS IN UNITED STATES V. LYNAH, 188 U.S.
445, AND UNITED STATES V. CRESS, 243 U.S. 316, SO THAT THEY DO NOT
CONFLICT WITH THE GOVERNMENT'S DOMINANT SERVITUDE WHEN IT IS APPLIED TO
THE BED OF A NAVIGABLE STREAM.  IN THE KELLY CASE, WHICH IS REPORTED
WITH THE CRESS CASE, THE LAND IN QUESTION WAS ON A NONNAVIGABLE
TRIBUTARY OF THE NAVIGABLE KENTUCKY RIVER.  THE GOVERNMENT'S DAM RAISED
THE WATERS OF THE RIVER WHICH, IN TURN, RAISED THOSE OF THE TRIBUTARY
ACROSS WHICH KELLY HAD BUILT A MILL DAM.  THIS COURT UPHELD THE
JUDGMENT REQUIRING THE UNITED STATES TO PAY KELLY FOR THE LOSS OF HIS
POWER HEAD AT HIS MILL WHICH RESULTED FROM THIS CHANGE IN THE LEVEL OF
THE TRIBUTARY.  SIMILARLY, IN THE CRESS CASE ITSELF, THIS COURT ASSUMED
THAT A TRIBUTARY OF THE CUMBERLAND RIVER WAS NOT NAVIGABLE.  IT THEN
ALLOWED RECOVERY FOR THE DESTRUCTION OF THE VALUE OF THE LAND AND OF A
FORD ACROSS THE TRIBUTARY.  ALL OF THIS DESTRUCTION WAS CAUSED BY THE
GOVERNMENT'S DAM ON THE RIVER BUT WAS DONE AT POINTS BEYOND THE BED OF
THAT RIVER.  IN THE CHICAGO CASE, THIS COURT'S VIEW OF THE CRESS
DECISION WAS EXPRESSED AS FOLLOWS: 

"WHAT WAS SAID IN THE CRESS CASE MUST BE CONFINED TO THE FACTS THERE
DISCLOSED.  IN THAT CASE, THE GOVERNMENT'S IMPROVEMENT IN A NAVIGABLE
STREAM RESULTED IN THE FLOODING OF THE PLAINTIFF'S LAND IN AND ADJACENT
TO A NON-NAVIGABLE STREAM.  THE OWNERS OF THE LAND ALONG AND UNDER THE
BED OF THE (NONNAVIGABLE) STREAM WERE HELD ENTITLED TO COMPENSATION FOR
THE DAMAGE TO THEIR LANDS.  THE QUESTION HERE PRESENTED WAS NOT
DISCUSSED IN THE OPINION."  312 U.S. AT P. 597. 

THE EXTENT OF THE GOVERNMENT'S PARAMOUNT POWER OVER THE BED OF
NAVIGABLE STREAMS WAS FURTHER CLARIFIED IN UNITED STATES V. WILLOW
RIVER POWER CO., SUPRA.  THE RESPONDENT THERE CLAIMED COMPENSATION FOR
THE REDUCTION OF A POWER HEAD, WHICH REDUCTION WAS CAUSED BY A
GOVERNMENT DAM WHICH RAISED THE LEVEL OF THE NAVIGABLE RIVER INTO WHICH
THE RESPONDENT DROPPED THE WATER FROM ITS DAM BUILT ON A NONNAVIGABLE
TRIBUTARY.  COMPENSATION WAS DENIED ON THE GROUND THAT BECAUSE THE LOSS
OF POWER TO THE RESPONDENT OCCURRED WITHIN THE BED OF THE NAVIGABLE
RIVER, SUCH LOSS WAS COVERED BY THE GOVERNMENT'S DOMINANT POWER TO
CHANGE THE RIVER'S LEVEL IN THE INTEREST OF NAVIGATION.  THIS COURT
SAID: 

"WE ARE OF OPINION THAT THE CRESS CASE DOES NOT GOVERN THIS ONE AND
THAT THERE IS NO WARRANT FOR APPLYING IT, AS THE CLAIMANT ASKS, OR FOR
OVERRULING IT, AS THE GOVERNMENT INTIMATES WOULD BE DESIRABLE.   ...
IN THE FORMER CASE THE NAVIGATION INTEREST WAS HELD NOT TO BE A
DOMINANT ONE AT THE PROPERTY DAMAGED; HERE DOMINANCE OF THE NAVIGATION
INTEREST AT THE ST. CROIX (THE NAVIGABLE RIVER) IS CLEAR."  324 U.S. AT
P. 506. 

IT IS NOT THE BROAD CONSTITUTIONAL POWER TO REGULATE COMMERCE, BUT
RATHER THE SERVITUDE DERIVED FROM THAT POWER AND NARROWER IN SCOPE,
THAT FREES THE GOVERNMENT FROM LIABILITY IN THESE CASES.  WHEN THE
GOVERNMENT EXERCISES THIS SERVITUDE, IT IS EXERCISING ITS PARAMOUNT
POWER IN THE INTEREST OF NAVIGATION, RATHER THAN TAKING THE PRIVATE
PROPERTY OF ANYONE.  THE OWNER'S USE OF PROPERTY RIPARIAN TO A
NAVIGABLE STREAM LONG HAS BEEN LIMITED BY THE RIGHT OF THE PUBLIC TO
USE THE STREAM IN THE INTEREST OF NAVIGATION.  SEE GOULD ON WATERS, C.
IV, SECS. 86-90(1883); I FARNHAM, WATERS AND WATER RIGHTS, C. III, SEC.
29(1904).  THIS HAS APPLIED TO THE STREAM AND TO THE LAND SUBMERGED BY
THE STREAM.  THERE THUS HAS BEEN AMPLE NOTICE OVER THE YEARS THAT SUCH
PROPERTY IS SUBJECT TO A DOMINANT PUBLIC INTEREST.  THIS RIGHT OF THE
PUBLIC HAS CRYSTALLIZED IN TERMS OF A SERVITUDE OVER THE BED OF THE
STREAM.  THE RELEVANCE OF THE HIGH-WATER LEVEL OF THE NAVIGABLE STREAM
IS THAT IT MARKS ITS BED.  ACCORDINGLY, IT IS CONSISTENT WITH THE
HISTORY AND REASON OF THE RULE TO DENY COMPENSATION WHERE THE
CLAIMANT'S PRIVATE TITLE IS BURDENED WITH THIS SERVITUDE BUT TO AWARD
COMPENSATION WHERE HIS TITLE IS NOT SO BURDENED.  FN7 

THE NEXT QUESTION IS WHETHER OR NOT THE GOVERNMENT'S DESTRUCTION OF
THE AGRICULTURAL VALUE OF THE RESPONDENT'S LAND IN THIS CASE AMOUNTED
TO A TAKING OF PRIVATE PROPERTY FOR PUBLIC USE WITHIN THE MEANING OF
THE FIFTH AMENDMENT. 

THIS CASE COMES WITHIN THE PRINCIPLE THAT THE DESTRUCTION OF
PRIVATELY OWNED LAND BY FLOODING IS "A TAKING" TO THE EXTENT OF THE
DESTRUCTION CAUSED.  THE DECISIONS IN PUMPELLY V. GREEN BAY CO., 13
WALL.  166; UNITED STATES V. LYNAH, SUPRA; UNITED STATES V. WILLIAMS,
188 U.S. 445, AND SAME CASE, 104 F. 50, 53; UNITED STATES V. WELCH, 217
U.S. 333; AND UNITED STATES V. CRESS, SUPRA, ILLUSTRATE THE DEVELOPMENT
OF THAT PRINCIPLE.  FN8  ALTHOUGH THEY HAVE BEEN LIMITED BY LATER
DECISIONS IN SOME RESPECTS, THE ABOVE CASES HAVE BEEN ACCEPTED AND
FOLLOWED IN THIS RESPECT.  UNITED STATES V. CHICAGO, M., ST. P. & P.R.
CO., SUPRA, AT PP. 597-598; FN9  UNITED STATES V. COMMODORE PARK, 324
U.S. 386; UNITED STATES V. WILLOW RIVER POWER CO., SUPRA; AND SEE
UNITED STATES V. CAUSBY, 328 U.S. 256. 

THE FINDINGS IN THE INSTANT CASE SHOW THAT THE LAND WAS PERMANENTLY
INVADED BY THE PERCOLATION OF THE WATERS FROM BOTH THE RIVER AND ITS
TRIBUTARY.  THE PERCOLATION RAISED THE WATER TABLE AND SOAKED THE LAND
SUFFICIENTLY TO DESTROY ITS AGRICULTURAL VALUE.  THE CONTINUOUS
PRESENCE OF THIS RAISED WATER TABLE ALSO BLOCKED THE DRAINAGE OF THE
SURFACE AND SUBSURFACE WATER IN A MANNER WHICH HELPED TO DESTROY THE
PRODUCTIVITY OF THE LAND.  FN10  WHETHER THE PREVENTION OF THE USE OF
THE LAND FOR AGRICULTURAL PURPOSES WAS DUE TO ITS INVASION BY WATER
FROM ABOVE OR FROM BELOW, IT WAS EQUALLY EFFECTIVE.  THE DESTRUCTION OF
LAND VALUE, WITHOUT SOME ACTUAL INVASION OF THE LAND AND SOLELY BY
PREVENTING THE ESCAPE OF ITS OWN SURFACE WATER, IS NOT BEFORE US.  EVEN
SUCH A SITUATION WOULD COME WITHIN THE CRESS CASE IF IT WERE
ESTABLISHED UNDER MISSOURI LAW THAT THE OWNER OF LAND ON A NONNAVIGABLE
STREAM HAS A RIGHT TO THE UNOBSTRUCTED DRAINAGE OF THAT LAND.  FN11 
ONE POINT REMAINS.  THE GOVERNMENT CONTENDS THAT THE FINDINGS OF THE
COURT BELOW DO NOT PROPERLY DESCRIBE THE INTEREST TAKEN.  THAT COURT
FOUND: 

"29.  THE PRIVILEGE EXERCISED BY THE GOVERNMENT, FOR WHICH THE
PLAINTIFF IS GIVEN COMPENSATION IN THIS SUIT, IS THE PRIVILEGE OF
PERMANENTLY MAINTAINING LOCK AND DAM NO. 26 AT THEIR PRESENT HEIGHT,
AND OPERATING THEM IN SUCH A MANNER AS TO FULFILL THE PURPOSES OF THEIR
CONSTRUCTION AND OTHER PURPOSES WHICH MAY DEVELOP IN THE FUTURE AND DO
NOT GREATLY VARY FROM PRESENT PURPOSES."  109 CT. CL. AT P. 572. 

THE ABOVE STATEMENT, READ IN ITS CONTEXT, PERMITS THE UNITED STATES
TO MAINTAIN THE LEVEL OF THE RIVER AND ITS TRIBUTARY AT 420.4 FEET
ABOVE SEA LEVEL WITH THE EFFECT ON THE RESPONDENT'S LAND THAT HAS BEEN
DESCRIBED.  THIS MEETS THE REQUIREMENTS FOR A VALID DESCRIPTION OF THE
INTEREST TAKEN AS INDICATED IN UNITED STATES V. CAUSBY, 328 U.S. 256,
267. 

THE JUDGMENT OF THE COURT OF CLAIMS ACCORDINGLY IS AFFIRMED. 

FN1  46 STAT. 918, 927; 49 STAT. 1028, 1034.  AS TO THE SAME SYSTEM
OF IMPROVEMENT, SEE UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO.,
312 U.S. 592. 

FN2  BEFORE AUGUST 8, 1938, DURING ABOUT 75% OF EACH YEAR, THE RIVER
DID NOT EXCEED A STAGE OF 419.6 FEET AT DARDENNE CREEK.  FROM 1930 TO
1937, BETWEEN JUNE 21 AND SEPTEMBER 21, IT AVERAGED 413.9 FEET.  FOR
SEVERAL MONTHS AT THE BEGINNING AND END OF A YEAR, ITS STAGE WAS 410
FEET OR LESS.  THE BED OF THE CREEK AT RESPONDENT'S FARM WAS 410 TO 413
FEET ABOVE SEA LEVEL.  THE WATER IN THE CREEK CREATED A STAGE OF 412 TO
416 FEET. 

FN3  ALTHOUGH, AS STATED IN THE TEXT, THE MISSISSIPPI RIVER, AT 420.4
FEET, DESTROYED THE AGRICULTURAL VALUE OF CERTAIN PARTS OF THE
RESPONDENT'S LAND, IT DID NOT PERCEPTIBLY CHANGE THE VALUE OF THE
RESPONDENT'S WET LAND BELOW 423.5 FEET OR OF ITS DRY LAND ABOVE 425
FEET.  NO COMPENSATION WAS ALLOWED FOR THE 602.04 ACRES SO LOCATED. 

FN4  THE COURT BELOW MADE EXTENDED FINDINGS AS TO THE EXPECTATION OF
THE ARMY ENGINEERS THAT DAMAGES, COMPARABLE TO THOSE WHICH DID OCCUR,
WOULD RESULT TO RESPONDENT'S LAND.  THE ENGINEERS RECOMMENDED THAT THE
UNITED STATES PURCHASE THE LAND.  HOUSE COMMITTEE ON RIVERS AND
HARBORS, DOC. NO. 34, 73D CONG., 2D SESS. (1934), AND HOUSE COMMITTEE
ON RIVERS AND HARBORS, DOC. NO. 34, 75TH CONG., 1ST SESS. 14, 55
56(1937).  THE PROJECT WAS AUTHORIZED BY CONGRESS AND POWER TO CONDEMN
THE LAND WAS GIVEN TO THE SECRETARY OF WAR AUGUST 26, 1937, 50 STAT.
844, 848.  HOWEVER, THE COURT BELOW CONCLUDED CORRECTLY THAT - 

"THE GOVERNMENT DID NOT, IN FACT, PURCHASE OR ACQUIRE BY EMINENT
DOMAIN A PORTION OF THE PLAINTIFF'S LAND, AS THE ARMY ENGINEERS HAD
RECOMMENDED, OR DITCH AND TILE ANOTHER PORTION, AS THEY HAD
RECOMMENDED.  IT JUST WENT AHEAD AND BUILT ITS LOCK AND DAM.  THE
PLAINTIFF STILL OWNS ITS LAND.  WE THINK THAT THE LEGISLATION QUOTED
ABOVE, WHILE IT MIGHT HAVE CONSTITUTED AN AUTHORIZATION TO ACQUIRE SOME
OF THE PLAINTIFF'S LAND BY EMINENT DOMAIN, AND TO SPEND MONEY IN TILING
AND DITCHING ANOTHER PART OF IT, DOES NOT CONSTITUTE A CONGRESSIONAL
WAIVER OF IMMUNITY FROM SUIT OR CONFESSION OF LIABILITY FOR THE
CONSEQUENCES OF BUILDING THE DAM."  109 CT. CL. AT P. 574, 74 F.SUPP. 
AT P. 654. 

SEE MITCHELL V. UNITED STATES, 267 U.S. 341, 345; UNITED STATES V.
ALEXANDER, 148 U.S. 186, 188-190. 

FN5  THE COURT OF CLAIMS FOUND THAT - 

"16.  UNDERNEATH THE CLAY SOIL ON PLAINTIFF'S LAND, THERE IS A
STRATUM OF WATER-BEARING SAND, THE TOP ELEVATION OF WHICH VARIES FROM
412 TO 414 FEET ABOVE MEAN SEA LEVEL.  THE WATER IN THE SAND IS
AFFECTED BY THE RISE AND FALL OF THE MISSISSIPPI RIVER AND THE WATER
TABLE UNDER THE LAND RISES AND FALLS IN RESPONSE TO HIGH OR LOW WATER
CONDITIONS IN THE RIVER.  THE WATER LEVEL IN THE UNDERGROUND STRATA IS
ALSO AFFECTED BY RAINFALL ON THE LAND, BECAUSE THE SAND STRATUM ACTS AS
A RESERVOIR FOR WATER WHICH DRAINS VERTICALLY FROM THE SURFACE OF THE
GROUND. 

     .         .         .         .     . 

"18.  THE AVERAGE POOL ELEVATION WHICH HAS BEEN MAINTAINED AT THE
MOUTH OF DARDENNE CREEK BY OPERATION OF DAM 26 IS 420.4 FEET, AND THE
ELEVATION OF THE WATER IN DARDENNE CREEK ADJACENT TO PLAINTIFF'S FARM
HAS BEEN RAISED FROM SIX TO SEVEN FEET ABOVE THE PREVIOUS NORMAL
LEVEL.  AS A RESULT OF THE OPERATION OF THE DAM, THE SURFACE OF THE
WATER IN THE CREEK HAS BEEN RAISED SO THAT THE CREEK WATER NOW BACKS
INTO SOME OF THE OUTLET PIPES IN THE PLAINTIFF'S LEVEE, THEREBY
OBSTRUCTING AND DELAYING THE DRAINAGE OF SURFACE WATER FROM PLAINTIFF'S
LAND.  IN ADDITION, BY MAINTAINING THE SURFACE OF THE WATER IN THE
CREEK TO AN ELEVATION OF 420 FEET OR MORE ABOVE SEA LEVEL, THE DRAINAGE
OF THE UNDERGROUND WATER FROM A LARGE PORTION OF THE PLAINTIFF'S FARM
HAS BEEN ALMOST ENTIRELY SHUT OFF.  PRIOR TO THE CONSTRUCTION OF THE
DAM THIS UNDERGROUND WATER DRAINED THROUGH THE SAND STRATA UNDER THE
LAND INTO THE CREEK, WHICH WAS NORMALLY ONLY 2 OR 3 FEET DEEP AT THAT
TIME. 

"19.  ...  SINCE THE DAM HAS BEEN IN OPERATION, THE CONDITIONS AND
THE PERIOD OF TIME, FORMERLY AVAILABLE FOR DRAINING THE LAND AND DRYING
THE SOIL, NO LONGER EXIST. 

"20.  AS A RESULT OF THE RIVER STAGE BEING CONTROLLED BY THE
OPERATION OF THE DAM, THE WATER TABLE UNDER PLAINTIFF'S LAND IS FROM
FOUR TO FIVE FEET HIGHER THAN IT WAS DURING THE LOW STAGES OF THE
MISSISSIPPI PRIOR TO THE ERECTION OF THE DAM.  UNDER CONTROLLED RIVER
CONDITIONS, THE WATER TABLE BENEATH PLAINTIFF'S LAND HAS BEEN RAISED TO
AN ELEVATION VARYING FROM 420.5 FEET TO 422 FEET, OR AN AVERAGE OF FROM
ONE TO TWO FEET HIGHER THAN THE CONTROLLED RIVER STAGE AT DIXON'S
LANDING.  (THE ELEVATION OF THE RIVER AT DIXON'S LANDING WAS ABOUT THE
SAME AS AT THE MOUTH OF DARDENNE CREEK.)  THE DRAINAGE OF THE
UNDERGROUND WATER FROM BENEATH A LARGE AREA OF PLAINTIFF'S LAND HAS
ALMOST CEASED.  ON SOME PORTIONS OF THE LAND, VERTICAL DRAINAGE FROM
THE SURFACE TO THE UNDERLYING SAND STRATUM HAS BEEN CUT OFF AND ON
OTHER PORTIONS IT HAS BEEN GREATLY RETARDED AS A RESULT OF THE
INCREASED HEIGHT OF THE WATER TABLE. 

"21.  THE EFFECTS OF THE OPERATION OF THE DAM BECAME APPARENT WITHIN
A SHORT TIME AFTER THE FULL POOL STAGE WAS OBTAINED ON AUGUST 8, 1938. 
AFTER A RAIN, THE SURFACE OF THE SOIL DRIED OUT MUCH MORE SLOWLY THAN
BEFORE AND THE DRAINAGE DITCHES DID NOT CARRY OFF THE WATER AS
READILY.  EXCESSIVE MOISTURE WAS RETAINED IN THE SOIL AND THE PLANTING
OF CROPS WAS DELAYED.  EVEN WHEN THE SURFACE APPEARED TO BE DRY, THE
GROUND UNDERNEATH WAS WET AND WOULD NOT SUPPORT TRACTORS AND OTHER FARM
MACHINERY, WHICH BECAME MIRED DOWN AND HAD TO CEASE OPERATIONS.  SEED
PLANTED ON SOME PORTIONS OF THE LAND FAILED TO GERMINATE AND WOULD
ROT.  IT WAS NOT POSSIBLE TO FOLLOW A PROPER CROP ROTATION PROGRAM. 
BECAUSE THE SOIL WAS OFTEN TOO WET FOR PLANTING SOME CROPS, IT WAS
NECESSARY TO SUBSTITUTE OTHER CROPS WHICH MATURE IN A SHORTER TIME." 
109 CT. CL. AT PP. 565-569. 

IN ITS OPINION, THE COURT OF CLAIMS CONCLUDED THAT - 

"THE CONSTRUCTION OF LOCK AND DAM NO. 26 RAISED THE LEVEL OF THE
WATER IN THE RIVER AND THE CREEK, WHEN THE POOL BEHIND THE DAM WAS
FILLED IN 1938, TO 420.4 FEET ABOVE MEAN SEA LEVEL, WHICH WAS
APPROXIMATELY THE ALTITUDE OF ORDINARY HIGH WATER LEVEL BEFORE THE
CONSTRUCTION OF THE LOCK AND DAM.  WE HAVE FOUND THAT THE CONSEQUENCE
OF THIS RAISING OF THE WATER LEVEL IN THE CREEK HAS BEEN TO SHUT OFF
THE FLOW OF SOME OF THE TUBES LEADING THROUGH THE LEVEE AND THEREBY
PREVENT THE SURFACE WATER FROM DRAINING OFF SOME OF THE LAND.  A MORE
SERIOUS CONSEQUENCE, HOWEVER, HAS BEEN THAT IT HAS PREVENTED WATER IN
THE STRATA UNDERNEATH THE PLAINTIFF'S LAND FROM DRAINING AWAY, THUS
KEEPING THE UNDERGROUND WATER WITHIN ONE, TWO, OR THREE FEET FROM THE
SURFACE OF DIFFERENT PORTIONS OF THE PLAINTIFF'S LAND, THEREBY
IMPAIRING ITS VALUE FOR FARMING."  ID. AT P. 573, 74 F.SUPP.  AT P.
653. 

FN6  WILLINK V. UNITED STATES, 240 U.S. 572; GREENLEAF JOHNSON LUMBER
CO. V. GARRISON, 237 U.S. 251; LEWIS BLUE POINT OYSTER CULTIVATION CO.
V. BRIGGS, 229 U.S. 82.  LOSS OF ACCESS TO A NAVIGABLE STREAM IS NOT
COMPENSABLE.  SCRANTON V. WHEELER, 179 U.S. 141; GIBSON V. UNITED
STATES, 166 U.S. 269.  SEE ALSO, UNITED STATES V. COMMODORE PARK, 324
U.S. 386.  A CHANGE IN THE FLOW OF A NAVIGABLE STREAM DOES NOT DEPRIVE
THE PRIVATE USER OF THAT STREAM, FOR POWER PURPOSES, OF A COMPENSABLE
RIGHT.  UNITED STATES V. WILLOW RIVER POWER CO., 324 U.S. 499; UNITED
STATES V. CHANDLER-DUNBAR WATER POWER CO., 229 U.S. 53. 

FN7  THIS IS CLEARLY ILLUSTRATED IN UNITED STATES V. CHICAGO, M., ST.
P. & P.R. CO., SUPRA.  THE UNITED STATES RAISED THE LEVEL OF THE
NAVIGABLE RIVER ABOVE ITS ORDINARY HIGH-WATER MARK.  THIS COURT THEN
DECLINED TO ALLOW COMPENSATION FOR THE DAMAGE CAUSED TO THE SEGMENT OF
THE RESPONDENT'S EMBANKMENT WHICH CONCEDEDLY WAS LOCATED ON LAND WITHIN
THE BED OF THE RIVER.  ON THE OTHER HAND, THE LOWER COURT AWARDED
COMPENSATION FOR THE DAMAGE DONE TO SUCH SEGMENTS OF THE EMBANKMENT AS
CONCEDEDLY WERE ON LAND ABOVE THE BED OF THE RIVER.  NO APPEAL WAS
TAKEN FROM THAT AWARD.  FINALLY, AS TO THREE OTHER SEGMENTS WITH REGARD
TO WHICH THERE WAS A DISAGREEMENT AS TO WHETHER OR NOT THEY WERE ON
LAND WITHIN THE BED OF THE RIVER, THIS COURT REMANDED THE CASE TO THE
DISTRICT COURT TO RESOLVE THAT FACTUAL ISSUE. 

FN8  IN INTERPRETING A LIKE PROVISION IN THE CONSTITUTION OF
WISCONSIN, THIS COURT HELD THAT CONTINUOUS FLOODING AMOUNTED TO A
TAKING OF THE LAND FLOODED.  IT SAID: 

"  ...  IT REMAINS TRUE THAT WHERE REAL ESTATE IS ACTUALLY INVADED BY
SUPERINDUCED ADDITIONS OF WATER, EARTH, SAND, OR OTHER MATERIAL, OR BY
HAVING ANY ARTIFICIAL STRUCTURE PLACED ON IT, SO AS TO EFFECTUALLY
DESTROY OR IMPAIR ITS USEFULNESS, IT IS A TAKING, WITHIN THE MEANING OF
THE CONSTITUTION, AND THAT THIS PROPOSITION IS NOT IN CONFLICT WITH THE
WEIGHT OF JUDICIAL AUTHORITY IN THIS COUNTRY, AND CERTAINLY NOT WITH
SOUND PRINCIPLE."  PUMPELLY V. GREEN BAY CO., SUPRA, AT P. 181. 

THE ABOVE CASE WAS QUOTED WITH APPROVAL IN SCRANTON V. WHEELER, 179
U.S. 141, 154, AND IN UNITED STATES V. LYNAH, SUPRA, AT P. 469.  THE
LAST NAMED CASE INVOLVED SEEPAGE, PERCOLATION AND SOME FLOODING WHICH
TURNED THE LAND INTO A BOG. 

IN THE CRESS CASE, AFTER DISCUSSING AND APPROVING THE REASONING IN
THE GREEN BAY AND LYNAH CASES, THE COURT SAID: 

"THERE IS NO DIFFERENCE OF KIND, BUT ONLY OF DEGREE, BETWEEN A
PERMANENT CONDITION OF CONTINUAL OVERFLOW BY BACK-WATER AND A PERMANENT
LIABILITY TO INTERMITTENT BUT INEVITABLY RECURRING OVERFLOWS; AND, ON
PRINCIPLE, THE RIGHT TO COMPENSATION MUST ARISE IN THE ONE CASE AS IN
THE OTHER.  IF ANY SUBSTANTIAL ENJOYMENT OF THE LAND STILL REMAINS TO
THE OWNER, IT MAY BE TREATED AS A PARTIAL INSTEAD OF A TOTAL DIVESTING
OF HIS PROPERTY IN THE LAND.  THE TAKING BY CONDEMNATION OF AN INTEREST
LESS THAN THE FEE IS FAMILIAR IN THE LAW OF EMINENT DOMAIN."  243 U.S.
AT PP. 328-329. 

FN9  IN THE CHICAGO CASE THIS COURT OVERRULED THE LYNAH CASE, SUPRA,
INSOFAR AS IT UPHELD COMPENSATION "FOR INJURY OR DESTRUCTION OF A
RIPARIAN OWNER'S PROPERTY LOCATED IN THE BED OF A NAVIGABLE STREAM." 
312 U.S. AT P. 598.  THE COURT, HOWEVER, EXPRESSLY MENTIONED THAT CASE
AS AN AUTHORITY ON THE POINT THAT THE FLOODING OF LAND, AS THERE DONE,
AMOUNTED TO A COMPENSABLE TAKING OF IT. 

FN10  SEE NOTE 5, SUPRA. 

FN11  BASED UPON THE LAW OF KENTUCKY, UPHOLDING THE RIGHT OF A
LANDOWNER ON A NONNAVIGABLE CREEK TO HAVE THE BENEFIT OF THE
UNOBSTRUCTED FLOW OF THAT CREEK, THIS COURT ALLOWED THE LANDOWNER
COMPENSATION IN THE KELLY CASE, WHICH IS REPORTED WITH THE CRESS CASE. 
THE COURT THERE SAID: "THE RIGHT TO HAVE THE WATER FLOW AWAY FROM THE
MILL DAM UNOBSTRUCTED, EXCEPT AS IN THE COURSE OF NATURE, IS NOT A MERE
EASEMENT OR APPURTENANCE, BUT EXISTS BY THE LAW OF NATURE AS AN
INSEPARABLE PART OF THE LAND."  243 U.S. AT P. 330. 

ALTHOUGH THE COURT BELOW REACHED NO EXPRESS CONCLUSION ON THE RIGHT
OF RESPONDENT TO DRAIN ITS LAND INTO DARDENNE CREEK, THERE IS NO
INDICATION THAT SUCH DRAINAGE WAS NOT A LAWFUL INCIDENT OF THE PROPERTY
OWNERSHIP.  UNDER MISSOURI LAW, THE OWNER OF LAND BORDERING ON A
NONNAVIGABLE STREAM HAS TITLE TO THE BED OF THE STREAM TO ITS CENTER,
UNLESS THE INSTRUMENTS OF TITLE SHOW A CONTRARY INTENT.  BROWN V.
WILSON, 348 MO. 658, 665, 155 S.W.2D 176, 179.  ALSO, A DOWNSTREAM
RIPARIAN OWNER HAS NO RIGHT TO DAM THE STREAM SO AS TO CAUSE IT TO
ACCUMULATE WATER AND FLOW IT BACK ON THE LAND OF UPSTREAM RIPARIAN
OWNERS.  KEENER V. SHARP, 341 MO. 1192, 111 S.W.2D 118, AND SEE
GREISINGER V. KLINHARDT, 321 MO. 186, 193, 9 S.W.2D 978, 980-981. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE REED,
AND MR. JUSTICE MINTON CONCUR, DISSENTING. 

WHAT RESPONDENT HERE PURPORTS TO CLAIM IS A PROPERTY RIGHT IN THE
UNFETTERED FLOW OF DARDENNE CREEK IN ITS NATURAL STATE.  BUT WHAT
RESPONDENT IN SUBSTANCE CLAIMS IS A PROPERTY RIGHT IN THE UNFETTERED
FLOW OF THE MISSISSIPPI IN ITS NATURAL STATE.  THE TWO ARE NECESSARILY
THE SAME, FOR WATER SEEKS ITS OWN LEVEL.  NO SUCH RIGHT ACCRUES TO ONE
WHO OWNS THE SHORE AND BED OF THE GREAT RIVER, UNTIL THAT RIVER IS
RAISED ABOVE HIGH-WATER MARK.  AND WE THINK THAT ONE WHO IS RIPARIAN TO
A TRIBUTARY HAS NO GREATER CLAIM UPON THE FLOW OF THE MISSISSIPPI.  FOR
THIS COURT HAS HELD IT TO BE "INCONCEIVABLE" THAT "THE RUNNING WATER IN
A GREAT NAVIGABLE STREAM IS CAPABLE OF PRIVATE OWNERSHIP."  UNITED
STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, 69.  IT WOULD BE
INCONGRUOUS TO DENY COMPENSATION TO OWNERS ADJACENT TO NAVIGABLE RIVERS
AND REQUIRE IT FOR OTHERS BORDERING THEIR TRIBUTARIES FOR LIKE INJURIES
CAUSED BY THE SINGLE ACT OF LIFTING THE RIVER'S MEAN LEVEL TO THE HIGH
WATER MARK.  BECAUSE WATER SEEKS ITS OWN LEVEL, RAISING THE LEVEL OF
THE RIVER NECESSARILY RAISES THAT OF THE TRIBUTARY AT THEIR CONJUNCTION
AND AS FAR UPSTREAM ON EACH AS THE EFFECTS OF THE LIFTING MAY GO.
THESE FACTS ARE EQUALLY APPARENT TO BOTH TYPES OF OWNERS.  WE THINK
THEY SHOULD BE ANTICIPATED BY BOTH, AND THAT THE ONE HAS NO MORE POWER
TO OBSTRUCT OR BURDEN THE POWER OF CONGRESS IN ITS CONTROL OF THE
RIVER'S BED IN THE INTEREST OF NAVIGATION THAN THE OTHER.  NEITHER HAS
ANY GREATER RIGHT TO HAVE THE RIVER FLOW IN ITS NATURAL STATE THAN THE
OTHER.    BASICALLY THE PROBLEM IN THIS CASE IS TO LOCATE A WORKABLE
AND REASONABLE BOUNDARY BETWEEN CONGRESS' POWER TO CONTROL NAVIGATION
IN THE PUBLIC INTEREST AND THE RIGHTS OF LANDOWNERS ADJACENT TO
NAVIGABLE STREAMS AND THEIR TRIBUTARIES TO COMPENSATION FOR INJURIES
FLOWING FROM THE EXERCISE OF THAT POWER.  THE CONSTITUTION DOES NOT
REQUIRE COMPENSATION FOR ALL INJURIES INFLICTED BY THE EXERCISE OF
CONGRESS' POWER.  NEITHER IS THE POWER UNLIMITED.  THE LINE THEREFORE
MUST BE DRAWN IN ACCOMMODATION OF THE TWO INTERESTS.  THIS COULD BE
DONE, AS IT WAS IN UNITED STATES V. CRESS, 243 U.S. 316, BY ALLOWING
COMPENSATION FOR ALL INJURIES INFLICTED BY ANY CHANGE IN THE NATURAL
LEVEL AND FLOW OF THE STREAM; IT CAN BE DONE, AS IN UNITED STATES V.
CHICAGO, M., ST. P. & P.R. CO., 312 U.S. 592 AND UNITED STATES V.
WILLOW RIVER CO., 324 U.S. 499, BY ALLOWING CHANGE IN THE NATURAL FLOW
TO THE EXTENT OF LIFTING THE MEAN LEVEL TO HIGH-WATER MARK WITHOUT
LIABILITY FOR CONSTITUTIONAL COMPENSATION; IT COULD BE DONE BY APPLYING
THE LATTER RULE TO OWNERS RIPARIAN TO THE NAVIGABLE STREAM, THE FORMER
TO THOSE RIPARIAN TO NONNAVIGABLE TRIBUTARIES. 

THERE IS NO SOUND REASON FOR TREATING THE TWO TYPES OF OWNERS
DIFFERENTLY.  CONGRESS HAS POWER TO REGULATE COMMERCE BY RAISING THE
LEVEL OF A NAVIGABLE STREAM TO HIGH-WATER MARK WITHOUT LIABILITY FOR
COMPENSATION TO ANY RIPARIAN OWNER.  THE EFFECT UPON THE RIPARIAN OWNER
OF THE RIVER'S TRIBUTARIES, WHETHER NAVIGABLE OR NONNAVIGABLE, IS THE
SAME AS THAT UPON THE OWNER RIPARIAN TO THE RIVER ITSELF.  SO IS THE
CONGRESSIONAL POWER AND THE DOMINANT SERVITUDE.  IN THIS VIEW NO VESTED
PRIVATE RIGHT IS GIVEN TO ANYONE, AS AGAINST THE PUBLIC INTEREST, IN
THE FULL UTILIZATION AND CONTROL OF THE RIVER'S BED FOR NAVIGATION OR
IN THE FLOW OF THE STREAM WITHIN IT. IF CONGRESS ACTS BEYOND THIS
LIMIT, THEN THE AMENDMENT WILL COME INTO PLAY TO PROTECT THE
LANDOWNER'S INTEREST. 

THIS VIEW REQUIRES THE OVERRULING OF THE CRESS CASE.  BUT UNTIL
TODAY'S RULING THE CRESS CASE HAD BEEN LARGELY DESTROYED BY INTERVENING
DECISIONS.  SEE UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., SUPRA;
UNITED STATES V. WILLOW RIVER CO., SUPRA.  I WOULD COMPLETE THE PROCESS
AND ALLOW THE UNITED STATES THE FULL USE OF ITS DOMINANT SERVITUDE IN A
NAVIGABLE STREAM. 

I AM INDEBTED TO THE LATE MR. JUSTICE RUTLEDGE FOR MUCH OF THE
PHRASEOLOGY AND CONTENT OF THIS DISSENT. 

MR. JUSTICE MINTON, DISSENTING. 

I AGREE WITH ALL THAT MR. JUSTICE DOUGLAS SAYS IN HIS DISSENT, BUT I
WOULD FOR AN ADDITIONAL REASON REVERSE THIS CASE.  THE WATERS
INTERFERED WITH HERE WERE SURFACE AND PERCOLATING OR SUBSURFACE
WATERS.  RESPONDENT HAD ALWAYS ENJOYED THE ECONOMIC ADVANTAGE OF HAVING
ITS SURFACE AND SUBSURFACE WATER DRAIN INTO DARDENNE CREEK.  THE
RAISING OF THE WATER LEVEL IN THE MISSISSIPPI HAS INTERFERED WITH THIS
ADVANTAGE.  BUT SURFACE AND SUBSURFACE WATERS ARE OUTLAWS IN MISSOURI,
AS AT COMMON LAW, AND ANYONE MAY DEFEND AGAINST THEM AND INTERFERE WITH
THEIR NATURAL DRAINAGE.  FN1  NO RIGHT EXISTS UNDER MISSOURI LAW TO
HAVE SURFACE OR SUBSURFACE WATER FLOW NATURALLY ONTO ADJOINING LAND. 
LANDOWNERS MAY BUILD EMBANKMENTS, DYKES, OR OTHER OBSTRUCTIONS TO STOP
THE FLOW OF SURFACE WATER UPON THEIR LAND.  ALTHOUGH IT APPEARS THAT
UNDER MISSOURI LAW A RIPARIAN OWNER MAY NOT DAM A WATERCOURSE SO THAT
IT IS OBSTRUCTED OR THE LANDS OF ANOTHER ARE FLOODED,  FN2  NO
AUTHORITY HAS BEEN BROUGHT TO MY ATTENTION WHICH WOULD INDICATE THAT
THE OBSTRUCTION OF DRAINAGE BY RAISING THE WATER LEVEL OF A STREAM
CONFERS A CAUSE OF ACTION.  I HAD NOT SUPPOSED THAT JUST COMPENSATION
REQUIRES THE GOVERNMENT TO PAY FOR THAT WHICH A RIPARIAN OWNER MAY
FREELY DO UNDER STATE LAW.  THE GOVERNMENT, BY INTERFERING WITH THE
DRAINAGE INTO DARDENNE CREEK, IS NOT "TAKING" ANY "RIGHT" OF
RESPONDENT. 

"  ...  NOT ALL ECONOMIC INTERESTS ARE 'PROPERTY RIGHTS'; ONLY THOSE
ECONOMIC ADVANTAGES ARE 'RIGHTS' WHICH HAVE THE LAW BACK OF THEM, AND
ONLY WHEN THEY ARE SO RECOGNIZED MAY COURTS COMPEL OTHERS TO FORBEAR
FROM INTERFERING WITH THEM OR TO COMPENSATE FOR THEIR INVASION." 
UNITED STATES V. WILLOW RIVER CO., 324 U.S. 499, 502. 

SINCE THE UNITED STATES MAY WITH IMPUNITY CAUSE LAND LYING WITHIN THE
BED OF THE STREAM TO BE OVERFLOWED AS A SUPERIOR RIGHT TO CONTROL
NAVIGATION, AND SINCE RESPONDENT HAS NO RIGHT TO THE UNHAMPERED
DRAINAGE OF SURFACE AND SUBSURFACE WATER, IT FOLLOWS THAT THE
GOVERNMENT HAS TAKEN NO RIGHT OF RESPONDENT.  THEREFORE IT IS NOT BOUND
TO PAY COMPENSATION.  IT WOULD BE ANOMALOUS INDEED THAT WHILE THE
GOVERNMENT MAY FLOOD LANDS LYING BETWEEN HIGH- AND LOW-WATER MARKS
WITHOUT PAYING COMPENSATION, IT IS LIABLE FOR AN INTERFERENCE WITH
DRAINAGE OF SURFACE WATER BY RAISING THE WATER LEVEL TO HIGH-WATER
MARK.  I WOULD REVERSE THE JUDGMENT. 

FN1  SEE, E.G., GOLL V. RAILROAD, 271 MO. 655, 197 S.W. 244; JOHNSON
V. LEAZENBY, 202 MO. APP. 232, 216 S.W. 49; MEHONRAY V. FOSTER, 132 MO.
APP. 229, 111 S.W. 882; APPLEGATE V. FRANKLIN, 109 MO. APP. 293, 84
S.W. 347; GOTTENSTROETER V. KAPPELMANN (REPORTED AS GOTTENETROETER V.
KAPPLEMANN AND GOTTENETROETER V. KAPPLEMAN), 83 MO. APP. 290; COLLIER
V. CHICAGO & A.R. CO., 48 MO. APP. 398. 

FN2  SEE KEENER V. SHARP, 341 MO. 1192, 111 S.W.2D 118; GREISINGER V.
KLINHARDT, 321 MO. 186, 9 S.W.2D 978; WATERWORKS CO. V. JENKINS, 62 MO.
APP. 74. 
..END :









HENDERSON V. UNITED STATES, 339 U.S. 816 


NO. 25.  ARGUED APRIL 3, 1950.  - DECIDED JUNE 5, 1950.  - 80 F.SUPP. 
32, REVERSED. 


UNDER THE RULES OF AN INTERSTATE RAILROAD, DINING CARS ARE DIVIDED SO
AS TO ALLOT TEN TABLES EXCLUSIVELY TO WHITE PASSENGERS AND ONE TABLE
EXCLUSIVELY TO NEGRO PASSENGERS, AND A CURTAIN SEPARATES THE TABLE
RESERVED FOR NEGROES FROM THE OTHERS.  UNDER THESE RULES, ONLY FOUR
NEGRO PASSENGERS MAY BE SERVED AT ONE TIME AND THEN ONLY AT THE TABLE
RESERVED FOR NEGROES.  OTHER NEGROES WHO PRESENT THEMSELVES ARE
COMPELLED TO AWAIT A VACANCY AT THAT TABLE, ALTHOUGH THERE MAY BE MANY
VACANCIES ELSEWHERE IN THE DINER.  THE RULES IMPOSE A LIKE DEPRIVATION
UPON WHITE PASSENGERS WHENEVER MORE THAN 40 OF THEM SEEK TO BE SERVED
AT THE SAME TIME AND THE TABLE RESERVED FOR NEGROES IS VACANT.  HELD:
THESE RULES AND PRACTICES VIOLATE SEC. 3(1) OF THE INTERSTATE COMMERCE
ACT, WHICH MAKES IT UNLAWFUL FOR A RAILROAD IN INTERSTATE COMMERCE "TO
SUBJECT ANY PARTICULAR PERSON  ...  TO ANY UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER."  PP. 818-826. 

(A)  HAVING BEEN SUBJECTED TO THE RAILROAD'S EARLIER PRACTICES WHICH
THE INTERSTATE COMMERCE COMMISSION AND THE COURT BELOW FOUND VIOLATIVE
OF THE INTERSTATE COMMERCE ACT, APPELLANT, A NEGRO, HAS STANDING TO
CHALLENGE THE RAILROAD'S CURRENT REGULATIONS ON THE GROUND THAT THEY
PERMIT THE RECURRENCE OF COMPARABLE VIOLATIONS.  P. 823. 

(B)  THE RIGHT TO BE FREE FROM UNREASONABLE DISCRIMINATIONS BELONGS,
UNDER SEC. 3(1), TO EACH PARTICULAR PERSON.  P. 824. 

(C)  THE CURTAINS, PARTITIONS AND SIGNS EMPHASIZING THE ARTIFICIALITY
OF A DIFFERENCE IN TREATMENT OF PASSENGERS HOLDING IDENTICAL TICKETS
AND USING THE SAME PUBLIC DINING FACILITY VIOLATE SEC. 3(1).  P. 825. 

(D)  THE LIMITED DEMAND FOR DINING-CAR FACILITIES BY NEGRO PASSENGERS
SENGERS DOES NOT JUSTIFY THE REGULATIONS.  P. 825. 

(E)  THAT THE REGULATIONS MAY IMPOSE ON WHITE PASSENGERS, IN
PROPORTION TO THEIR NUMBERS, DISADVANTAGES SIMILAR TO THOSE IMPOSED ON
NEGRO PASSENGERS DOES NOT VALIDATE THEM UNDER SEC. 3(1).  PP. 825-826. 

HENDERSON V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MARYLAND. 

IN A SUIT BROUGHT BY APPELLANT TO SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION, 269 I.C.C. 73, THE THREE-JUDGE DISTRICT
COURT DISMISSED THE COMPLAINT.  80 F.SUPP.  32.  ON DIRECT APPEAL TO
THIS COURT, REVERSED AND REMANDED, P. 826. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER THE RULES AND PRACTICES OF THE SOUTHERN
RAILWAY COMPANY, WHICH DIVIDE EACH DINING CAR SO AS TO ALLOT TEN TABLES
EXCLUSIVELY TO WHITE PASSENGERS AND ONE TABLE EXCLUSIVELY TO NEGRO
PASSENGERS, AND WHICH CALL FOR A CURTAIN OR PARTITION BETWEEN THAT
TABLE AND THE OTHERS, VIOLATE SEC. 3(1) OF THE INTERSTATE COMMERCE
ACT.  THAT SECTION MAKES IT UNLAWFUL FOR A RAILROAD IN INTERSTATE
COMMERCE "TO SUBJECT ANY PARTICULAR PERSON,  ...  TO ANY UNDUE OR
UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER:  ...
"  54 STAT. 902, 49 U.S.C. SEC. 3(1).  WE HOLD THAT THOSE RULES AND
PRACTICES DO VIOLATE THE ACT. 

THIS ISSUE GROWS OUT OF AN INCIDENT WHICH OCCURRED MAY 17, 1942.  ON
THAT DATE THE APPELLANT, ELMER W. HENDERSON, A NEGRO PASSENGER, WAS
TRAVELING ON A FIRST-CLASS TICKET ON THE SOUTHERN RAILWAY FROM
WASHINGTON, D.C., TO ATLANTA, GEORGIA, EN ROUTE TO BIRMINGHAM, ALABAMA,
IN THE COURSE OF HIS DUTIES AS AN EMPLOYEE OF THE UNITED STATES.  THE
TRAIN LEFT WASHINGTON AT 2 P.M. AT ABOUT 5:30 P.M., WHILE THE TRAIN WAS
IN VIRGINIA,  FN1  THE FIRST CALL TO DINNER WAS ANNOUNCED AND HE WENT
PROMPTLY TO THE DINING CAR.  IN ACCORDANCE WITH THE PRACTICE THEN IN
EFFECT, THE TWO END TABLES NEAREST THE KITCHEN WERE CONDITIONALLY
RESERVED FOR NEGROES.  AT EACH MEAL THOSE TABLES WERE TO BE RESERVED
INITIALLY FOR NEGROES AND, WHEN OCCUPIED BY NEGROES, CURTAINS WERE TO
BE DRAWN BETWEEN THEM AND THE REST OF THE CAR.  IF THE OTHER TABLES
WERE OCCUPIED BEFORE ANY NEGRO PASSENGERS PRESENTED THEMSELVES AT THE
DINER THEN THOSE TWO TABLES ALSO WERE TO BE AVAILABLE FOR WHITE
PASSENGERS, AND NEGROES WERE NOT TO BE SEATED AT THEM WHILE IN USE BY
WHITE PASSENGERS.  FN2 WHEN THE APPELLANT REACHED THE DINER, THE END
TABLES IN QUESTION WERE PARTLY OCCUPIED BY WHITE PASSENGERS BUT AT
LEAST ONE SEAT AT THEM WAS UNOCCUPIED.  THE DINING-CAR STEWARD DECLINED
TO SEAT THE APPELLANT IN THE DINING CAR BUT OFFERED TO SERVE HIM,
WITHOUT ADDITIONAL CHARGE, AT HIS PULLMAN SEAT.  THE APPELLANT DECLINED
THAT OFFER AND THE STEWARD AGREED TO SEND HIM WORD WHEN SPACE WAS
AVAILABLE.  NO WORD WAS SENT AND THE APPELLANT WAS NOT SERVED, ALTHOUGH
HE TWICE RETURNED TO THE DINER BEFORE IT WAS DETACHED AT 9 P.M. 

IN OCTOBER, 1942, THE APPELLANT FILED A COMPLAINT WITH THE INTERSTATE
COMMERCE COMMISSION ALLEGING ESPECIALLY THAT THE FOREGOING CONDUCT
VIOLATED SEC. 3(1) OF THE INTERSTATE COMMERCE ACT.  FN3  DIVISION 2 OF
THE COMMISSION FOUND THAT HE HAD BEEN SUBJECTED TO UNDUE AND
UNREASONABLE PREJUDICE AND DISADVANTAGE, BUT THAT THE OCCURRENCE WAS A
CASUAL INCIDENT BROUGHT ABOUT BY THE BAD JUDGMENT OF AN EMPLOYEE.  THE
COMMISSION DECLINED TO ENTER AN ORDER AS TO FUTURE PRACTICES.  258
I.C.C. 413.  A THREE-JUDGE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND, HOWEVER, HELD THAT THE RAILROAD'S GENERAL
PRACTICE, AS EVIDENCED BY ITS INSTRUCTIONS OF AUGUST 6, 1942, WAS IN
VIOLATION OF SEC. 3(1).  ACCORDINGLY, ON FEBRUARY 18, 1946, IT REMANDED
THE CASE FOR FURTHER PROCEEDINGS.  63 F.SUPP.  906.  EFFECTIVE MARCH 1,
1946, THE COMPANY ANNOUNCED ITS MODIFIED RULES WHICH ARE NOW IN
EFFECT.  THEY PROVIDE FOR THE RESERVATION OF TEN TABLES, OF FOUR SEATS
EACH, EXCLUSIVELY AND UNCONDITIONALLY FOR WHITE PASSENGERS AND ONE
TABLE, OF FOUR SEATS, EXCLUSIVELY AND UNCONDITIONALLY FOR NEGRO
PASSENGERS.  BETWEEN THIS TABLE AND THE OTHERS A CURTAIN IS DRAWN
DURING EACH MEAL.  FN4 

ON REMAND, THE FULL COMMISSION, WITH TWO MEMBERS DISSENTING AND ONE
NOT PARTICIPATING, FOUND THAT THE MODIFIED RULES DO NOT VIOLATE THE
INTERSTATE COMMERCE ACT AND THAT NO ORDER FOR THE FUTURE WAS
NECESSARY.  FN5  269 I.C.C. 73.  THE APPELLANT PROMPTLY INSTITUTED THE
PRESENT PROCEEDING BEFORE THE DISTRICT COURT, CONSTITUTED OF THE SAME
THREE MEMBERS AS BEFORE, SEEKING TO HAVE THE COMMISSION'S ORDER SET
ASIDE AND A CEASE AND DESIST ORDER ISSUED.  28 U.S.C. SECS. 41(28), 43
48; 49 U.S.C. SEC. 17(9); SEE ALSO, 28 U.S.C. (SUPP. III) SECS. 1336,
1398, 2284, 2321, 2325.  WITH ONE MEMBER DISSENTING, THE COURT
SUSTAINED THE MODIFIED RULES ON THE GROUND THAT THE ACCOMMODATIONS ARE
ADEQUATE TO SERVE THE AVERAGE NUMBER OF NEGRO PASSENGERS AND ARE
"PROPORTIONATELY FAIR."  80 F.SUPP.  32, 39.  THE CASE IS HERE ON
DIRECT APPEAL.  28 U.S.C. (SUPP. III) SECS. 1253, 2101(B).  IN THIS
COURT, THE UNITED STATES FILED A BRIEF AND ARGUED ORALLY IN SUPPORT OF
THE APPELLANT. 

IT IS CLEAR THAT APPELLANT HAS STANDING TO BRING THESE PROCEEDINGS. 
HE IS AN AGGRIEVED PARTY, FREE TO TRAVEL AGAIN ON THE SOUTHERN
RAILWAY.  HAVING BEEN SUBJECTED TO PRACTICES OF THE RAILROAD WHICH THE
COMMISSION AND THE COURT BELOW FOUND TO VIOLATE THE INTERSTATE COMMERCE
ACT, HE MAY CHALLENGE THE RAILROAD'S CURRENT REGULATIONS ON THE GROUND
THAT THEY PERMIT THE RECURRENCE OF COMPARABLE VIOLATIONS.  MITCHELL V.
UNITED STATES, 313 U.S. 80, 92-93. 

THE MATERIAL LANGUAGE IN SEC. 3(1) OF THE INTERSTATE COMMERCE ACT HAS
BEEN IN THAT STATUTE SINCE ITS ADOPTION IN 1887.  24 STAT. 380.  FROM
THE BEGINNING, THE INTERSTATE COMMERCE COMMISSION HAS RECOGNIZED THE
APPLICATION OF THAT LANGUAGE TO DISCRIMINATIONS BETWEEN WHITE AND NEGRO
PASSENGERS.  COUNCILL V. WESTERN & ATLANTIC R. CO., 1 I.C.C. 339; FN6
HEARD V. GEORGIA R. CO., 1 I.C.C. 428; HEARD V. GEORGIA R. CO., 3
I.C.C. 111; EDWARDS V. NASHVILLE, C. & ST. L.R. CO., 12 I.C.C. 247;
COZART V. SOUTHERN R. CO., 16 I.C.C. 226; GAINES V. SEABOARD AIR LINE
R. CO., 16 I.C.C. 471; CROSBY V. ST. LOUIS-SAN FRANCISCO R. CO., 112
I.C.C. 239.  THAT SECTION RECENTLY WAS SO APPLIED IN MITCHELL V. UNITED
STATES, SUPRA. 

THE DECISION OF THIS CASE IS LARGELY CONTROLLED BY THAT IN THE
MITCHELL CASE.  THERE A NEGRO PASSENGER HOLDING A FIRST-CLASS TICKET
WAS DENIED A PULLMAN SEAT, ALTHOUGH SUCH A SEAT WAS UNOCCUPIED AND
WOULD HAVE BEEN AVAILABLE TO HIM IF HE HAD BEEN WHITE.  THE RAILROAD
RULES HAD ALLOTTED A LIMITED AMOUNT OF PULLMAN SPACE, CONSISTING OF
COMPARTMENTS AND DRAWING ROOMS, TO NEGRO PASSENGERS AND, BECAUSE THAT
SPACE WAS OCCUPIED, THE COMPLAINANT WAS EXCLUDED FROM THE PULLMAN CAR
AND REQUIRED TO RIDE IN A SECOND-CLASS COACH.  THIS COURT HELD THAT THE
PASSENGER THEREBY HAD BEEN SUBJECTED TO AN UNREASONABLE DISADVANTAGE IN
VIOLATION OF SEC. 3(1).  FN7 

THE SIMILARITY BETWEEN THAT CASE AND THIS IS INESCAPABLE.  THE
APPELLANT HERE WAS DENIED A SEAT IN THE DINING CAR ALTHOUGH AT LEAST
ONE SEAT WAS VACANT AND WOULD HAVE BEEN AVAILABLE TO HIM, UNDER THE
EXISTING RULES, IF HE HAD BEEN WHITE.  FN8  THE ISSUE BEFORE US, AS IN
THE MITCHELL CASE, IS WHETHER THE RAILROAD'S CURRENT RULES AND
PRACTICES CAUSE PASSENGERS TO BE SUBJECTED TO UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE IN VIOLATION OF SEC. 3(1).  WE FIND THAT THEY
DO. 

THE RIGHT TO BE FREE FROM UNREASONABLE DISCRIMINATIONS BELONGS, UNDER
SEC. 3(1), TO EACH PARTICULAR PERSON.  WHERE A DINING CAR IS AVAILABLE
TO PASSENGERS HOLDING TICKETS ENTITLING THEM TO USE IT, EACH SUCH
PASSENGER IS EQUALLY ENTITLED TO ITS FACILITIES IN ACCORDANCE WITH
REASONABLE REGULATIONS.  THE DENIAL OF DINING SERVICE TO ANY SUCH
PASSENGER BY THE RULES BEFORE US SUBJECTS HIM TO A PROHIBITED
DISADVANTAGE.  UNDER THE RULES, ONLY FOUR NEGRO PASSENGERS MAY BE
SERVED AT ONE TIME AND THEN ONLY AT THE TABLE RESERVED FOR NEGROES. 
OTHER NEGROES WHO PRESENT THEMSELVES ARE COMPELLED TO AWAIT A VACANCY
AT THAT TABLE, ALTHOUGH THERE MAY BE MANY VACANCIES ELSEWHERE IN THE
DINER.  THE RAILROAD THUS REFUSES TO EXTEND TO THOSE PASSENGERS THE USE
OF ITS EXISTING AND UNOCCUPIED FACILITIES.  THE RULES IMPOSE A LIKE
DEPRIVATION UPON WHITE PASSENGERS WHENEVER MORE THAN 40 OF THEM SEEK TO
BE SERVED AT THE SAME TIME AND THE TABLE RESERVED FOR NEGROES IS
VACANT. 

WE NEED NOT MULTIPLY INSTANCES IN WHICH THESE RULES SANCTION
UNREASONABLE DISCRIMINATIONS.  THE CURTAINS, PARTITIONS AND SIGNS
EMPHASIZE THE ARTIFICIALITY OF A DIFFERENCE IN TREATMENT WHICH SERVES
ONLY TO CALL ATTENTION TO A RACIAL CLASSIFICATION OF PASSENGERS HOLDING
IDENTICAL TICKETS AND USING THE SAME PUBLIC DINING FACILITY.  CF.
MCLAURIN V. OKLAHOMA STATE REGENTS, ANTE, P. 637, DECIDED TODAY.  THEY
VIOLATE SEC. 3(1). 

OUR ATTENTION HAS BEEN DIRECTED TO NOTHING WHICH REMOVES THESE RACIAL
ALLOCATIONS FROM THE STATUTORY CONDEMNATION OF "UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE  ...  "  IT IS ARGUED THAT THE LIMITED DEMAND
FOR DINING-CAR FACILITIES BY NEGRO PASSENGERS JUSTIFIES THE
REGULATIONS.  BUT IT IS NO ANSWER TO THE PARTICULAR PASSENGER WHO IS
DENIED SERVICE AT AN UNOCCUPIED PLACE IN A DINING CAR THAT, ON THE
AVERAGE, PERSONS LIKE HIM ARE SERVED.  AS WAS POINTED OUT IN MITCHELL
V. UNITED STATES, 313 U.S. 80, 97, "THE COMPARATIVE VOLUME OF TRAFFIC
CANNOT JUSTIFY THE DENIAL OF A FUNDAMENTAL RIGHT OF EQUALITY OF
TREATMENT, A RIGHT SPECIFICALLY SAFEGUARDED BY THE PROVISIONS OF THE
INTERSTATE COMMERCE ACT."  CF. MCCABE V. ATCHISON, T. & S.F.R. CO., 235
U.S. 151; MISSOURI EX REL. GAINES V. CANADA, 305 U.S. 337. 

THAT THE REGULATIONS MAY IMPOSE ON WHITE PASSENGERS, IN PROPORTION TO
THEIR NUMBERS, DISADVANTAGES SIMILAR TO THOSE IMPOSED ON NEGRO
PASSENGERS IS NOT AN ANSWER TO THE REQUIREMENTS OF SEC. 3(1). 
DISCRIMINATIONS THAT OPERATE TO THE DISADVANTAGE OF TWO GROUPS ARE NOT
THE LESS TO BE CONDEMNED BECAUSE THEIR IMPACT IS BROADER THAN IF ONLY
ONE WERE AFFECTED.  CF. SHELLEY V. KRAEMER, 334 U.S. 1, 22. 

SINCE SEC. 3(1) OF THE INTERSTATE COMMERCE ACT INVALIDATES THE RULES
AND PRACTICES BEFORE US, WE DO NOT REACH THE CONSTITUTIONAL OR OTHER
ISSUES SUGGESTED. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED TO THAT COURT WITH DIRECTIONS TO SET ASIDE THE ORDER OF THE
INTERSTATE COMMERCE COMMISSION WHICH DISMISSED THE ORIGINAL COMPLAINT
AND TO REMAND THE CASE TO THAT COMMISSION FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  NO RELIANCE IS PLACED IN THIS CASE UPON ANY ACTION BY ANY
STATE. 

FN2  RULE OF THE SOUTHERN RAILWAY COMPANY ISSUED JULY 3, 1941, AND IN
EFFECT MAY 17, 1942:

    "DINING CAR REGULATIONS 

"MEALS SHOULD BE SERVED TO PASSENGERS OF DIFFERENT RACES AT SEPARATE
TIMES.  IF PASSENGERS OF ONE RACE DESIRE MEALS WHILE PASSENGERS OF A
DIFFERENT RACE ARE BEING SERVED IN THE DINING CAR, SUCH MEALS WILL BE
SERVED IN THE ROOM OR SEAT OCCUPIED BY THE PASSENGER WITHOUT EXTRA
CHARGE.  IF THE DINING CAR IS EQUIPPED WITH CURTAINS SO THAT IT CAN BE
DIVIDED INTO SEPARATE COMPARTMENTS, MEALS MAY BE SERVED TO PASSENGERS
OF DIFFERENT RACES AT THE SAME TIME IN THE COMPARTMENTS SET ASIDE FOR
THEM."  258 I.C.C. 413, 415, 63 F.SUPP.  906, 910. 

JOINT CIRCULAR OF THE SOUTHERN RAILWAY SYSTEM ISSUED AUGUST 6, 1942: 

"EFFECTIVE AT ONCE PLEASE BE GOVERNED BY THE FOLLOWING WITH RESPECT
TO THE RACE SEPARATION CURTAINS IN DINING CARS: 

"BEFORE STARTING EACH MEAL PULL THE CURTAINS TO SERVICE POSITION AND
PLACE A 'RESERVED' CARD ON EACH OF THE TWO TABLES BEHIND THE CURTAINS. 

"THESE TABLES ARE NOT TO BE USED BY WHITE PASSENGERS UNTIL ALL OTHER
SEATS IN THE CAR HAVE BEEN TAKEN.  THEN IF NO COLORED PASSENGERS
PRESENT THEMSELVES FOR MEALS, THE CURTAIN SHOULD BE PUSHED BACK, CARDS
REMOVED AND WHITE PASSENGERS SERVED AT THOSE TABLES. 

"AFTER THE TABLES ARE OCCUPIED BY WHITE PASSENGERS, THEN SHOULD
COLORED PASSENGERS PRESENT THEMSELVES THEY SHOULD BE ADVISED THAT THEY
WILL BE SERVED JUST AS SOON AS THOSE COMPARTMENTS ARE VACATED. 

"'RESERVED' CARDS ARE BEING SUPPLIED YOU."  258 I.C.C. AT P. 415, 63
F.SUPP.  AT P. 910. 

FN3  "(1)  IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF THIS PART TO MAKE, GIVE, OR CAUSE ANY UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON, COMPANY,
FIRM, CORPORATION, ASSOCIATION, LOCALITY, PORT, PORT DISTRICT, GATEWAY,
TRANSIT POINT, REGION, DISTRICT, TERRITORY, OR ANY PARTICULAR
DESCRIPTION OF TRAFFIC, IN ANY RESPECT WHATSOEVER; OR TO SUBJECT ANY
PARTICULAR PERSON, COMPANY, FIRM, CORPORATION, ASSOCIATION, LOCALITY,
PORT, PORT DISTRICT, GATEWAY, TRANSIT POINT, REGION, DISTRICT,
TERRITORY, OR ANY PARTICULAR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR
UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER:...." 
54 STAT. 902, 49 U.S.C. SEC. 3(1). 

THE APPELLANT SOUGHT AN ORDER DIRECTING THE RAILROAD NOT ONLY TO
CEASE AND DESIST FROM THE SPECIFIC VIOLATIONS ALLEGED BUT ALSO TO
ESTABLISH IN THE FUTURE, FOR THE COMPLAINANT AND OTHER NEGRO INTERSTATE
PASSENGERS, EQUAL AND JUST DINING-CAR FACILITIES AND SUCH OTHER SERVICE
AND FACILITIES AS THE COMMISSION MIGHT CONSIDER REASONABLE AND JUST,
AND REQUIRING THE RAILROAD TO DISCONTINUE USING CURTAINS AROUND TABLES
RESERVED FOR NEGROES. 

THE APPELLANT SOUGHT DAMAGES, BUT THE COMMISSION FOUND NO PECUNIARY
DAMAGES AND THAT ISSUE HAS NOT BEEN PRESSED FURTHER.    FN4
"TRANSPORTATION DEPARTMENT CIRCULAR NO. 142.  CANCELLING INSTRUCTIONS
ON THIS SUBJECT DATED JULY 3, 1941, AND AUGUST 6, 1942. 

"SUBJECT:  SEGREGATION OF WHITE AND COLORED PASSENGERS IN DINING
CARS. 

"TO:  PASSENGER CONDUCTORS AND DINING CAR STEWARDS. 

"CONSISTENT WITH EXPERIENCE IN RESPECT TO THE RATIO BETWEEN THE
NUMBER OF WHITE AND COLORED PASSENGERS WHO ORDINARILY APPLY FOR SERVICE
IN AVAILABLE DINER SPACE, EQUAL BUT SEPARATE ACCOMMODATIONS SHALL BE
PROVIDED FOR WHITE AND COLORED PASSENGERS BY PARTITIONING DINERS AND
THE ALLOTMENT OF SPACE, IN ACCORDANCE WITH THE RULES, AS FOLLOWS: 

"(1)  THAT ONE OF THE TWO TABLES AT STATION NO. 1 LOCATED TO THE LEFT
SIDE OF THE AISLE FACING THE BUFFET, SEATING FOUR PERSONS, SHALL BE
RESERVED EXCLUSIVELY FOR COLORED PASSENGERS, AND THE OTHER TABLES IN
THE DINER SHALL BE RESERVED EXCLUSIVELY FOR WHITE PASSENGERS. 

"(2)  BEFORE STARTING EACH MEAL, DRAW THE PARTITION CURTAIN
SEPARATING THE TABLE IN STATION NO. 1, DESCRIBED ABOVE, FROM THE TABLE
ON THAT SIDE OF THE AISLE IN STATION NO. 2, THE CURTAIN TO REMAIN SO
DRAWN FOR THE DURATION OF THE MEAL. 

"(3)  A 'RESERVED' CARD SHALL BE KEPT IN PLACE ON THE LEFT-HAND TABLE
IN STATION NO. 1, DESCRIBED ABOVE, AT ALL TIMES DURING THE MEAL EXCEPT
WHEN SUCH TABLE IS OCCUPIED AS PROVIDED IN THESE RULES. 

"(4)  THESE RULES BECOME EFFECTIVE MARCH 1, 1946. 

                     "R. K. MCCLAIN,

       "ASSISTANT VICE-PRESIDENT." 

269 I.C.C. 73, 75, 80 F.SUPP.  32, 35. 

COUNSEL FOR THE RAILWAY COMPANY, AT A SUBSEQUENT HEARING, CORRECTED
THE ABOVE RULES "TO THE EXTENT OF USING THE WORD 'NEGROES' IN THE PLACE
OF 'COLORED PERSONS.'"  ALSO, THE EVIDENCE SHOWS, AND THE COMMISSION
HAS STATED, THAT "WHITE AND NEGRO SOLDIERS ARE SERVED TOGETHER, WITHOUT
DISTINCTION."  258 I.C.C. 413, 415, 63 F.SUPP.  906, 910.  THE RULES,
ACCORDINGLY, ARE TREATED AS APPLICABLE ONLY TO CIVILIAN PASSENGERS. 
THE COMPANY FURTHER SHOWED THAT IT IS NOW SUBSTITUTING A FIVE-FOOT HIGH
WOODEN PARTITION IN PLACE OF THE CURTAIN.  THE STEWARD'S OFFICE IS
BEING PLACED IN THE TABLE SPACE OPPOSITE THAT RESERVED FOR NEGRO
PASSENGERS AND A SIMILAR WOODEN PARTITION IS BEING ERECTED BETWEEN THAT
OFFICE AND THE REST OF THE CAR. 

FN5  THE COMPANY WAS PERMITTED TO INTRODUCE TWO TABULATIONS, COVERING
ABOUT TEN DAYS EACH, SHOWING THE COMPARATIVE NUMBERS OF MEALS SERVED TO
WHITE AND NEGRO PASSENGERS ON TRIPS COMPARABLE TO THE ONE WHICH THE
APPELLANT HAD TAKEN.  THESE SHOW THAT ONLY ABOUT 4% OF THE TOTAL MEALS
SERVED WERE SERVED TO NEGRO PASSENGERS WHEREAS FOUR RESERVED SEATS
EXCEED 9% OF A TOTAL SEATING CAPACITY OF 44.  ON THE OTHER HAND, THE
TABULATIONS ALSO SHOW THAT AT ONE MEAL 17 NEGRO PASSENGERS, AND AT EACH
OF 20 MEALS MORE THAN EIGHT NEGRO PASSENGERS, WERE SERVED.  SIMILARLY,
THE BRIEF FILED BY THE COMMISSION STATES THAT, OUT OF THE 639 SERVING
PERIODS REPORTED, ON 15 OCCASIONS MORE THAN FOUR TIMES AS MANY WHITE
PASSENGERS WERE SERVED AS THERE WERE SEATS RESERVED FOR THEM, AND, ON
541 OCCASIONS, THERE WERE TWO OR MORE ROUNDS OF SERVINGS. 

FN6  "THE WESTERN AND ATLANTIC RAILROAD COMPANY WILL BE NOTIFIED TO
CEASE AND DESIST FROM SUBJECTING COLORED PERSONS TO UNDUE AND
UNREASONABLE PREJUDICE AND DISADVANTAGE IN VIOLATION OF SECTION 3 OF
THE ACT TO REGULATE COMMERCE, AND FROM FURNISHING TO COLORED PERSONS
PURCHASING FIRST-CLASS TICKETS ON ITS ROAD ACCOMMODATIONS WHICH ARE NOT
EQUALLY SAFE AND COMFORTABLE WITH THOSE FURNISHED OTHER FIRST-CLASS
PASSENGERS."  1 I.C.C. AT P. 347. 

FN7  THE RULES ALSO DENIED ACCESS BY NEGROES TO THE DINING CAR AND
OBSERVATION CAR.  THE PRINCIPLES THERE ANNOUNCED APPLIED EQUALLY TO
THOSE FACILITIES. 

FN8  THAT SPECIFIC DENIAL OF SERVICE WAS CONDEMNED BY THE COMMISSION
AND THE DISTRICT COURT AS A VIOLATION OF SEC. 3(1).  REVIEW OF THAT
CONDEMNATION IS NOT SOUGHT HERE. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



AUTOMATIC RADIO CO. V. HAZELTINE, 339 U.S. 827 


NO. 455.  ARGUED APRIL 5, 1950.  - DECIDED JUNE 5, 1950.  - 176 F.2D
799, AFFIRMED. 


PETITIONER, A MANUFACTURER OF RADIO BROADCASTING RECEIVERS, ENTERED
INTO A LICENSING AGREEMENT WITH RESPONDENT, A RADIO RESEARCH
ORGANIZATION, WHEREBY, FOR ROYALTIES AMOUNTING TO A SMALL PERCENTAGE OF
PETITIONER'S SELLING PRICE OF COMPLETE RADIO BROADCASTING RECEIVERS,
PETITIONER OBTAINED PERMISSION TO USE IN THE MANUFACTURE OF ITS "HOME
PRODUCTS" ANY OR ALL OF 570 PATENTS WHICH RESPONDENT HELD AND ANY
OTHERS TO WHICH IT MIGHT ACQUIRE RIGHTS.  RESPONDENT IS NOT A
MANUFACTURER BUT DERIVES ITS INCOME FROM LICENSING ITS PATENTS; AND ITS
POLICY IS TO LICENSE ANY AND ALL RESPONSIBLE MANUFACTURERS.  UNDER THE
AGREEMENT, PETITIONER WAS NOT OBLIGATED TO USE ANY OF RESPONDENT'S
PATENTS IN THE MANUFACTURE OF ITS PRODUCTS; BUT IT WAS REQUIRED TO PAY
THE ROYALTY, WHETHER IT USED THEM OR NOT.  HELD: 

1.  IT IS NOT PER SE A MISUSE OF PATENTS TO REQUIRE THE LICENSEE TO
PAY ROYALTIES BASED ON A PERCENTAGE OF ITS SALES, EVEN THOUGH NONE OF
THE PATENTS IS USED.  PP. 830-834. 

(A)  ON THE RECORD IN THIS CASE, THERE WAS NOTHING TO SUPPORT
PETITIONER'S AVERMENT THAT RESPONDENT REFUSED TO GRANT A LICENSE UNDER
ANY ONE OR MORE OF ITS PATENTS TO ANYONE WHO REFUSED TO TAKE A LICENSE
UNDER ALL, SINCE THE AFFIDAVIT IN SUPPORT THEREOF WAS MADE UPON
INFORMATION AND BELIEF AND THE RELEVANT PORTION DID NOT COMPLY WITH
RULE 56(E) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  P. 831. 

(B)  THERE IS NO INDICATION IN THIS CASE OF A CONSPIRACY TO RESTRICT
PRODUCTION OF UNPATENTED GOODS, OR ANY GOODS, TO EFFECTUATE A
MONOPOLY.  UNITED STATES V. GYPSUM CO., 333 U.S. 364, DISTINGUISHED. 
P. 832. 

(C)  IN THIS CASE, THE ROYALTY PROVISION DID NOT CREATE ANOTHER
MONOPOLY AND CREATED NO RESTRAINT OF COMPETITION BEYOND THE LEGITIMATE
GRANT OF THE PATENT.  P. 833. 

(D)  THE MERE ACCUMULATION OF PATENTS, NO MATTER HOW MANY, IS NOT PER
SE ILLEGAL.  P. 834. 

(E)  IN THE CIRCUMSTANCES OF THIS CASE, THERE BEING NO INHERENT
EXTENSION OF THE MONOPOLY OF THE PATENTS, PAYMENT OF ROYALTIES
ACCORDING TO AN AGREED PERCENTAGE OF THE LICENSEE'S SALES IS NOT
UNREASONABLE.  P. 834. 

(F)  HAVING OBTAINED BY THE AGREEMENT THE PRIVILEGE OF USING ANY OR
ALL OF RESPONDENT'S PATENTS AND DEVELOPMENTS, PETITIONER CANNOT
COMPLAIN BECAUSE IT MUST PAY ROYALTIES WHETHER IT USES THE PATENTS OR
NOT.  P. 834. 

2.  THE QUESTION WHETHER THE INCLUSION IN THE LICENSING AGREEMENT OF
A PROVISION REQUIRING PETITIONER TO ATTACH RESTRICTIVE NOTICES TO THE
APPARATUS MANUFACTURED BY IT MADE THE AGREEMENT UNENFORCEABLE IS MOOT,
BECAUSE RESPONDENT HAD WAIVED COMPLIANCE WITH THIS REQUIREMENT.  PP.
834-836. 

3.  THERE BEING NO SHOWING THAT THE LICENSING AGREEMENT OR THE
PRACTICES UNDER IT WERE A MISUSE OF PATENTS OR CONTRARY TO PUBLIC
POLICY, PETITIONER MAY NOT, IN THIS SUIT, CHALLENGE THE VALIDITY OF THE
LICENSED PATENTS.  P. 836. 

AUTOMATIC RADIO MANUFACTURING CO., INC. V. HAZELTINE RESEARCH, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

IN A SUIT BY THE LICENSOR OF CERTAIN PATENTS, THE DISTRICT COURT
SUSTAINED THE VALIDITY OF A PATENT LICENSING AGREEMENT, ENTERED
JUDGMENT FOR AN ACCOUNTING AND RECOVERY OF ROYALTIES, AND ENJOINED
PETITIONER FROM FAILING TO PAY ROYALTIES, TO KEEP RECORDS AND TO RENDER
REPORTS DURING THE LIFE OF THE AGREEMENT.  77 F.SUPP.  493.  THE COURT
OF APPEALS AFFIRMED.  176 F.2D 799.  THIS COURT GRANTED CERTIORARI. 
338 U.S. 942.  AFFIRMED, P. 836. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BY RESPONDENT HAZELTINE RESEARCH, INC., AS ASSIGNEE OF
THE LICENSOR'S INTEREST IN A NONEXCLUSIVE PATENT LICENSE AGREEMENT
COVERING A GROUP OF 570 PATENTS AND 200 APPLICATIONS, AGAINST
PETITIONER AUTOMATIC RADIO MANUFACTURING COMPANY, INC., THE LICENSEE,
TO RECOVER ROYALTIES.  THE PATENTS AND APPLICATIONS ARE RELATED TO THE
MANUFACTURE OF RADIO BROADCASTING APPARATUS.  RESPONDENT AND ITS
CORPORATE AFFILIATE AND PREDECESSOR HAVE FOR SOME TWENTY YEARS BEEN
ENGAGED IN RESEARCH, DEVELOPMENT, ENGINEERING DESIGN AND TESTING AND
CONSULTING SERVICES IN THE RADIO FIELD.  RESPONDENT DERIVES INCOME FROM
THE LICENSING OF ITS PATENTS, ITS POLICY BEING TO LICENSE ANY AND ALL
RESPONSIBLE MANUFACTURERS OF RADIO APPARATUS AT A ROYALTY RATE WHICH
FOR MANY YEARS HAS BEEN APPROXIMATELY ONE PERCENT.  PETITIONER
MANUFACTURES RADIO APPARATUS, PARTICULARLY RADIO BROADCASTING
RECEIVERS. 

THE LICENSE AGREEMENT IN ISSUE, WHICH APPEARS TO BE A STANDARD
HAZELTINE LICENSE, WAS ENTERED INTO BY THE PARTIES IN SEPTEMBER 1942,
FOR A TERM OF TEN YEARS.  BY ITS TERMS PETITIONER ACQUIRED PERMISSION
TO USE, IN THE MANUFACTURE OF ITS "HOME" PRODUCTS, ANY OR ALL OF THE
PATENTS WHICH RESPONDENT HELD OR TO WHICH IT MIGHT ACQUIRE RIGHTS. 
PETITIONER WAS NOT, HOWEVER, OBLIGATED TO USE RESPONDENT'S PATENTS IN
THE MANUFACTURE OF ITS PRODUCTS.  FOR THIS LICENSE, PETITIONER AGREED
TO PAY RESPONDENT'S ASSIGNOR ROYALTIES BASED UPON A SMALL PERCENTAGE OF
PETITIONER'S SELLING PRICE OF COMPLETE RADIO BROADCASTING RECEIVERS,
AND IN ANY EVENT A MINIMUM OF $10,000 PER YEAR.  IT FURTHER AGREED TO
KEEP A RECORD OF ITS SALES AND TO MAKE MONTHLY REPORTS THEREOF. 

THIS SUIT WAS BROUGHT TO RECOVER THE MINIMUM ROYALTY DUE FOR THE YEAR
ENDING AUGUST 31, 1946, FOR AN ACCOUNTING OF OTHER SUMS DUE, AND FOR
OTHER RELIEF.  PETITIONER ANSWERED AND BOTH PARTIES FILED MOTIONS FOR
SUMMARY JUDGMENT AND AFFIDAVITS IN SUPPORT OF THE MOTIONS.  THE
DISTRICT COURT FOUND THE CASE TO BE ONE APPROPRIATE FOR SUMMARY
PROCEDURE UNDER RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE, AND
SUSTAINED THE MOTION OF RESPONDENT FOR JUDGMENT.  THE VALIDITY OF THE
LICENSE AGREEMENT WAS UPHELD AGAINST VARIOUS CHARGES OF MISUSE OF THE
PATENTS, AND JUDGMENT WAS ENTERED FOR THE RECOVERY OF ROYALTIES AND AN
ACCOUNTING, AND FOR A PERMANENT INJUNCTION RESTRAINING PETITIONER FROM
FAILING TO PAY ROYALTIES, TO KEEP RECORDS, AND TO RENDER REPORTS DURING
THE LIFE OF THE AGREEMENT.  77 F.SUPP.  493.  THE COURT OF APPEALS
AFFIRMED, ONE JUDGE DISSENTING (176 F.2D 799), AND WE GRANTED
CERTIORARI (338 U.S. 942) IN ORDER TO CONSIDER IMPORTANT QUESTIONS
CONCERNING PATENT MISUSE AND ESTOPPEL TO CHALLENGE THE VALIDITY OF
LICENSED PATENTS. 

THE QUESTIONS FOR DETERMINATION ARE WHETHER A MISUSE OF PATENTS HAS
BEEN SHOWN, AND WHETHER PETITIONER MAY CONTEST THE VALIDITY OF THE
LICENSED PATENTS, IN ORDER TO AVOID ITS OBLIGATION TO PAY ROYALTIES
UNDER THE AGREEMENT. 

FIRST.  IT IS INSISTED THAT THE LICENSE AGREEMENT CANNOT BE ENFORCED
BECAUSE IT IS A MISUSE OF PATENTS TO REQUIRE THE LICENSEE TO PAY
ROYALTIES BASED ON ITS SALES, EVEN THOUGH NONE OF THE PATENTS ARE
USED.  PETITIONER DIRECTS OUR ATTENTION TO THE "TIE-IN" CASES.  THESE
CASES HAVE CONDEMNED SCHEMES REQUIRING THE PURCHASE OF UNPATENTED GOODS
FOR USE WITH PATENTED APPARATUS OR PROCESSES,  FN1  PROHIBITING
PRODUCTION OR SALE OF COMPETING GOODS,  FN2  AND CONDITIONING THE
GRANTING OF A LICENSE UNDER ONE PATENT UPON THE ACCEPTANCE OF ANOTHER
AND DIFFERENT LICENSE.  FN3 PETITIONER APPARENTLY CONCEDES THAT THESE
CASES DO NOT, ON THEIR FACTS, CONTROL THE INSTANT SITUATION.  IT IS
OBVIOUS THAT THEY DO NOT.  THERE IS PRESENT HERE NO REQUIREMENT FOR THE
PURCHASE OF ANY GOODS.  HAZELTINE DOES NOT EVEN MANUFACTURE OR SELL
GOODS; IT IS ENGAGED SOLELY IN RESEARCH ACTIVITIES.  NOR IS THERE ANY
PROHIBITION AS TO THE LICENSEE'S MANUFACTURE OR SALE OF ANY TYPE OF
APPARATUS.  THE FACT THAT THE LICENSE AGREEMENT COVERS ONLY "HOME"
APPARATUS DOES NOT MEAN THAT THE LICENSEE IS PROHIBITED FROM
MANUFACTURING OR SELLING OTHER APPARATUS.  AND FINALLY, THERE IS NO
CONDITIONING OF THE LICENSE GRANT UPON THE ACCEPTANCE OF ANOTHER AND
DIFFERENT LICENSE.  WE ARE AWARE THAT PETITIONER ASSERTED IN ITS
COUNTERMOTION FOR SUMMARY JUDGMENT IN THE DISTRICT COURT THAT HAZELTINE
REFUSED TO GRANT A LICENSE UNDER ANY ONE OR MORE OF ITS PATENTS TO
ANYONE WHO REFUSED TO TAKE A LICENSE UNDER ALL.  THIS AVERMENT WAS
ELABORATED IN THE AFFIDAVIT OF PETITIONER'S ATTORNEY IN SUPPORT OF THE
MOTION.  THE POINT WAS NOT PRESSED IN THE COURT OF APPEALS OR HERE.  IN
ANY EVENT THERE IS NOTHING AVAILABLE IN THE RECORD TO SUPPORT THE
AVERMENT, SINCE THE AFFIDAVIT IN SUPPORT THEREOF WAS MADE UPON
INFORMATION AND BELIEF AND THE RELEVANT PORTION, AT LEAST, DOES NOT
COMPLY WITH RULE 56(E) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  FN4 

BUT PETITIONER URGES THAT THIS CASE "IS IDENTICAL IN PRINCIPLE" WITH
THE "TIE-IN" CASES.  IT IS CONTENDED THAT THE LICENSING PROVISION
REQUIRING ROYALTY PAYMENTS OF A PERCENTAGE OF THE SALES OF THE
LICENSEE'S PRODUCTS CONSTITUTES A MISUSE OF PATENTS BECAUSE IT TIES IN
A PAYMENT ON UNPATENTED GOODS.  PARTICULAR RELIANCE IS PLACED ON
LANGUAGE FROM UNITED STATES V. U.S. GYPSUM CO., 333 U.S. 364, 389,
400.  FN5  THAT CASE WAS A PROSECUTION UNDER THE SHERMAN ACT FOR AN
ALLEGED CONSPIRACY OF GYPSUM AND ITS LICENSEES TO EXTEND THE MONOPOLY
OF CERTAIN PATENTS AND TO ELIMINATE COMPETITION BY FIXING PRICES ON
PATENTED AND UNPATENTED GYPSUM BOARD.  THE LICENSE PROVISIONS BASED
ROYALTIES ON ALL SALES OF GYPSUM BOARD, BOTH PATENTED AND UNPATENTED. 
IT WAS HELD THAT THE LICENSE PROVISIONS, TOGETHER WITH EVIDENCE OF AN
UNDERSTANDING THAT ONLY PATENTED BOARD WOULD BE SOLD, SHOWED A
CONSPIRACY TO RESTRICT THE PRODUCTION OF UNPATENTED PRODUCTS WHICH WAS
AN INVALID EXTENSION OF THE AREA OF THE PATENT MONOPOLY.  333 U.S. AT
397.  THERE IS NO INDICATION HERE OF CONSPIRACY TO RESTRICT PRODUCTION
OF UNPATENTED OR ANY GOODS TO EFFECTUATE A MONOPOLY, AND THUS THE
GYPSUM CASE DOES NOT AID PETITIONER.  THAT WHICH IS CONDEMNED AS
AGAINST PUBLIC POLICY BY THE "TIE-IN" CASES IS THE EXTENSION OF THE
MONOPOLY OF THE PATENT TO CREATE ANOTHER MONOPOLY OR RESTRAINT OF
COMPETITION - A RESTRAINT NOT COUNTENANCED BY THE PATENT GRANT.  SEE,
E.G., MERCOID CORP. V. MID-CONTINENT INVESTMENT CO., 320 U.S. 661, 665
666; MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488; ETHYL GASOLINE
CORP. V. UNITED STATES, 309 U.S. 436, 456.  THE PRINCIPLE OF THOSE
CASES CANNOT BE CONTORTED TO CIRCUMSCRIBE THE INSTANT SITUATION.  THIS
ROYALTY PROVISION DOES NOT CREATE ANOTHER MONOPOLY; IT CREATES NO
RESTRAINT OF COMPETITION BEYOND THE LEGITIMATE GRANT OF THE PATENT. 
THE RIGHT TO A PATENT INCLUDES THE RIGHT TO MARKET THE USE OF THE
PATENT AT A REASONABLE RETURN.  SEE 46 STAT. 376, 35 U.S.C. SEC. 40;
HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 417, 324 U.S. 570,
574. 

THE LICENSING AGREEMENT IN ISSUE WAS CHARACTERIZED BY THE DISTRICT
COURT AS ESSENTIALLY A GRANT BY HAZELTINE TO PETITIONER OF A PRIVILEGE
TO USE ANY PATENT OR FUTURE DEVELOPMENT OF HAZELTINE IN CONSIDERATION
OF THE PAYMENT OF ROYALTIES.  PAYMENT FOR THE PRIVILEGE IS REQUIRED
REGARDLESS OF USE OF THE PATENTS.  FN6  THE ROYALTY PROVISION OF THE
LICENSING AGREEMENT WAS SUSTAINED BY THE DISTRICT COURT AND THE COURT
OF APPEALS ON THE THEORY THAT IT WAS A CONVENIENT MODE OF OPERATION
DESIGNED BY THE PARTIES TO AVOID THE NECESSITY OF DETERMINING WHETHER
EACH TYPE OF PETITIONER'S PRODUCT EMBODIES ANY OF THE NUMEROUS
HAZELTINE PATENTS.  77 F.SUPP.  AT 496.  THE COURT OF APPEALS REASONED
THAT SINCE IT WOULD NOT BE UNLAWFUL TO AGREE TO PAY A FIXED SUM FOR THE
PRIVILEGE TO USE PATENTS, IT WAS NOT UNLAWFUL TO PROVIDE A VARIABLE
CONSIDERATION MEASURED BY A PERCENTAGE OF THE LICENSEE'S SALES FOR THE
SAME PRIVILEGE.  176 F.2D AT 804.  NUMEROUS DISTRICT COURTS WHICH HAVE
HAD OCCASION TO PASS ON THE QUESTION HAVE REACHED THE SAME RESULT ON
SIMILAR GROUNDS,  FN7  AND WE ARE OF LIKE OPINION. 

THE MERE ACCUMULATION OF PATENTS, NO MATTER HOW MANY, IS NOT IN AND OF
ITSELF ILLEGAL.  SEE TRANSPARENT-WRAP MACHINE CORP. V. STOKES & SMITH
CO., 329 U.S. 637.  AND THIS RECORD SIMPLY DOES NOT SUPPORT INCENDIARY,
YET VAGUE, CHARGES THAT RESPONDENT USES ITS ACCUMULATION OF PATENTS
"FOR THE EXACTION OF TRIBUTE" AND COLLECTS ROYALTIES "BY MEANS OF THE
OVERPOWERING THREAT OF DISASTROUS LITIGATION."  WE CANNOT SAY THAT
PAYMENT OF ROYALTIES ACCORDING TO AN AGREED PERCENTAGE OF THE
LICENSEE'S SALES IS UNREASONABLE.  SOUND BUSINESS JUDGMENT COULD
INDICATE THAT SUCH PAYMENT REPRESENTS THE MOST CONVENIENT METHOD OF
FIXING THE BUSINESS VALUE OF THE PRIVILEGES GRANTED BY THE LICENSING
AGREEMENT.  WE ARE NOT UNMINDFUL THAT CONVENIENCE CANNOT JUSTIFY AN
EXTENSION OF THE MONOPOLY OF THE PATENT.  SEE, E.G., MERCOID CORP. V.
MID-CONTINENT INVESTMENT CO., 320 U.S. 661, 666; B.B. CHEMICAL CO. V.
ELLIS, 314 U.S. 495, 498.  BUT AS WE HAVE ALREADY INDICATED, THERE IS
IN THIS ROYALTY PROVISION NO INHERENT EXTENSION OF THE MONOPOLY OF THE
PATENT.  PETITIONER CANNOT COMPLAIN BECAUSE IT MUST PAY ROYALTIES
WHETHER IT USES HAZELTINE PATENTS OR NOT.  WHAT IT ACQUIRED BY THE
AGREEMENT INTO WHICH IT ENTERED WAS THE PRIVILEGE TO USE ANY OR ALL OF
THE PATENTS AND DEVELOPMENTS AS IT DESIRED TO USE THEM.  IF IT CHOOSES
TO USE NONE OF THEM, IT HAS NEVERTHELESS CONTRACTED TO PAY FOR THE
PRIVILEGE OF USING EXISTING PATENTS PLUS ANY DEVELOPMENTS RESULTING
FROM RESPONDENT'S CONTINUOUS RESEARCH.  WE HOLD THAT IN LICENSING THE
USE OF PATENTS TO ONE ENGAGED IN A RELATED ENTERPRISE, IT IS NOT PER SE
A MISUSE OF PATENTS TO MEASURE THE CONSIDERATION BY A PERCENTAGE OF THE
LICENSEE'S SALES. 

SECOND.  IT IS NEXT CONTENDED BY PETITIONER THAT THE LICENSE
AGREEMENTS IS UNENFORCEABLE BECAUSE IT CONTAINED A PROVISION REQUIRING
THE FOLLOWING RESTRICTIVE NOTICE TO BE ATTACHED TO APPARATUS
MANUFACTURED BY PETITIONER UNDER THE AGREEMENT: 

"'LICENSED BY HAZELTINE CORPORATION ONLY FOR USE IN HOMES, FOR
EDUCATIONAL PURPOSES, AND FOR PRIVATE, NON-COMMERCIAL USE, UNDER ONE OR
MORE OF THE FOLLOWING PATENTS AND UNDER PENDING APPLICATIONS:'
FOLLOWED BY THE WORD 'PATENT' AND THE NUMBERS OF THE PATENTS WHICH ARE,
IN THE OPINION OF LICENSOR, INVOLVED IN APPARATUS OF THE TYPES LICENSED
HEREUNDER MANUFACTURED BY ONE OR MORE LICENSEES OF LICENSOR." 

RESPONDENT DID NOT SEEK TO HAVE THIS PROVISION OF THE AGREEMENT
ENFORCED, AND THE DECREE OF THE DISTRICT COURT DOES NOT ENFORCE IT.  IT
MAY WELL HAVE BEEN A DEAD LETTER FROM THE BEGINNING, AS INDICATED BY
THE FACT THAT, AS PETITIONER AVERRED IN ITS ANSWER, IT HAS NEVER
OBSERVED THIS PROVISION OF THE AGREEMENT.  THUS IT IS DOUBTFUL THAT THE
LEGALITY OF THIS PROVISION COULD BE CONTESTED, EVEN ASSUMING THAT THE
ISSUE WAS PROPERLY RAISED, WHICH RESPONDENT DISPUTES.  IN ANY EVENT, IT
IS CLEAR THAT ANY ISSUE WITH RESPECT TO THIS PROVISION OF THE AGREEMENT
IS MOOT.  AN AFFIDAVIT OF THE PRESIDENT OF RESPONDENT CORPORATION
ADVISES US OF CERTAIN LETTERS WHICH WERE SENT BY RESPONDENT IN
SEPTEMBER 1945, TO EACH OF ITS LICENSEES, INCLUDING PETITIONER.  THESE
LETTERS AUTHORIZED THE DISCONTINUANCE OF THE RESTRICTIVE NOTICE
PROVISION AND THE SUBSTITUTION OF THE MARKING 

"THIS APPARATUS IS LICENSED UNDER THE UNITED STATES PATENT RIGHTS OF
HAZELTINE CORPORATION." 

IT IS FURTHER AVERRED THAT THIS FORM OF NOTICE IS ALL THAT RESPONDENT
HAS REQUIRED OF ITS LICENSEES SINCE SEPTEMBER 1945.  SINCE THIS
PROVISION OF THE AGREEMENT WAS MADE FOR THE BENEFIT OF RESPONDENT, IT
COULD VOLUNTARILY WAIVE THE PROVISION.  WESTINGHOUSE ELECTRIC CORP. V.
BULLDOG ELECTRIC PRODUCTS CO., 179 F.2D 139, 145, 146.  THUS THE
QUESTION OF THE LEGALITY OF THE ORIGINAL RESTRICTIVE NOTICE PROVISION
IS NOT BEFORE US.  CF. STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163,
181-182. 

THIRD.  FINALLY, IT IS CONTENDED THAT NOTWITHSTANDING THE LICENSING
AGREEMENT, PETITIONER-LICENSEE MAY CONTEST THE VALIDITY OF THE PATENTS
IT IS CHARGED WITH USING.  THE GENERAL RULE IS THAT THE LICENSEE UNDER
A PATENT LICENSE AGREEMENT MAY NOT CHALLENGE THE VALIDITY OF THE
LICENSED PATENT IN A SUIT FOR ROYALTIES DUE UNDER THE CONTRACT.  UNITED
STATES V. HARVEY STEEL CO., 196 U.S. 310.  THE GENERAL PRINCIPLE OF THE
INVALIDITY OF PRICE-FIXING AGREEMENTS MAY BE INVOKED BY THE LICENSEE OF
WHAT PURPORT TO BE VALID PATENTS TO SHOW IN A SUIT FOR ROYALTIES THAT
THE PATENTS ARE INVALID.  KATZINGER CO. V. CHICAGO METALLIC MFG. CO.,
329 U.S. 394; MACGREGOR V. WESTINGHOUSE ELEC.  & MFG. CO., 329 U.S.
402.  THERE IS NO SHOWING THAT THE LICENSING AGREEMENT HERE OR THE
PRACTICES UNDER IT WERE A MISUSE OF PATENTS OR CONTRARY TO PUBLIC
POLICY.  THIS LIMITED LICENSE FOR "HOME" USE PRODUCTION CONTAINS
NEITHER AN EXPRESS NOR IMPLIED AGREEMENT TO REFRAIN FROM PRODUCTION FOR
"COMMERCIAL" OR ANY OTHER USE AS PART CONSIDERATION FOR THE LICENSE
GRANT.  THE KATZINGER AND MACGREGOR CASES ARE INAPPLICABLE.  THE
GENERAL RULE APPLIES, AND PETITIONER MAY NOT, IN THIS SUIT, CHALLENGE
THE VALIDITY OF THE LICENSED PATENTS.    THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED. 

FN1  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392; MERCOID
CORP. V. MINNEAPOLIS-HONEYWELL CO., 320 U.S. 680; MERCOID CORP. V. MID
CONTINENT INVESTMENT CO., 320 U.S. 661; B.B. CHEMICAL CO. V. ELLIS, 314
U.S. 495; MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488; ETHYL GASOLINE
CORP. V. UNITED STATES, 309 U.S. 436; LEITCH MANUFACTURING CO. V.
BARBER CO., 302 U.S. 458; INTERNATIONAL BUSINESS MACHINES CORP. V.
UNITED STATES, 298 U.S. 131; CARBICE CORP. V. AMERICAN PATENTS
DEVELOPMENT CORP., 283 U.S. 27; UNITED SHOE MACHINERY CORP. V. UNITED
STATES, 258 U.S. 451; MOTION PICTURE PATENTS CO. V. UNIVERSAL FILM
MANUFACTURING CO., 243 U.S. 502. 

FN2  UNITED SHOE MACHINERY CORP. V. UNITED STATES, 258 U.S. 451;
NATIONAL LOCKWASHER CO. V. GARRETT CO., 137 F.2D 255; RADIO CORP. V.
LORD, 28 F.2D 257. 

FN3  UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131.  (COPYRIGHT
"BLOCK-BOOKING.") 

FN4  "FORM OF AFFIDAVITS; FURTHER TESTIMONY.  SUPPORTING AND OPPOSING
AFFIDAVITS SHALL BE MADE ON PERSONAL KNOWLEDGE, SHALL SET FORTH SUCH
FACTS AS WOULD BE ADMISSIBLE IN EVIDENCE, AND SHALL SHOW AFFIRMATIVELY
THAT THE AFFIANT IS COMPETENT TO TESTIFY TO THE MATTERS STATED
THEREIN.  ...  " FED. RULES CIV. PROC., 56(E). 

FN5  "  ...  THE ROYALTY WAS TO BE MEASURED BY A PERCENTAGE OF THE
VALUE OF ALL GYPSUM PRODUCTS, PATENTED OR UNPATENTED  ...  "  333 U.S.
AT 389.  "PATENTS GRANT NO PRIVILEGE TO THEIR OWNERS OF ORGANIZING THE
USE OF THOSE PATENTS TO MONOPOLIZE AN INDUSTRY THROUGH PRICE CONTROL,
THROUGH ROYALTIES FOR THE PATENTS DRAWN FROM PATENT-FREE INDUSTRY
PRODUCTS AND THROUGH REGULATION OF DISTRIBUTION."  333 U.S. AT 400. 

FN6  IN THIS VIEW OF THE CONTRACT WE NEED NOT CONCERN OURSELVES WITH
THE CONTROVERSY BETWEEN COUNSEL AS TO WHETHER THE TRANSCRIPT SHOWS A
FACTUAL DISPUTE OVER THE USE OR NON-USE OF HAZELTINE PATENTS BY
PETITIONER IN ITS PRODUCTS. 

FN7  HAZELTINE RESEARCH V. ADMIRAL CORP., 87 F.SUPP.  72, 79; H-P-M
DEVELOPMENT CORP. V. WATSON-STILLMAN CO., 71 F.SUPP.  906, 912;
AMERICAN OPTICAL CO. V. NEW JERSEY OPTICAL CO., 58 F.SUPP.  601, 606;
OHIO CITIZENS TRUST CO. V. AIR-WAY ELECTRIC APPLIANCE CORP., 56
F.SUPP.  1010, 1012; CF. PYRENE MFG. CO. V. URQUHART, 69 F.SUPP.  555,
560; INTERNATIONAL CARBONIC ENGINEERING CO. V. NATURAL CARBONIC
PRODUCTS, 57 F.SUPP.  248, 251-253, AFFIRMED, 158 F.2D 285.  AT LEAST
ONE STATE COURT HAS REACHED THIS RESULT.  HAZELTINE RESEARCH V. DE WALD
RADIO CORP., 84 N.Y.S.2D 597, 603. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

WE ARE, I THINK, INCLINED TO FORGET THAT THE POWER OF CONGRESS TO
GRANT PATENTS IS CIRCUMSCRIBED BY THE CONSTITUTION.  THE PATENT POWER,
OF ALL LEGISLATIVE POWERS, IS INDEED THE ONLY ONE WHOSE PURPOSE IS
DEFINED.  ARTICLE I, SEC. 8 DESCRIBES THE POWER AS ONE "TO PROMOTE THE
PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO
AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS
AND DISCOVERIES."  THIS STATEMENT OF POLICY LIMITS THE POWER ITSELF. 

THE COURT IN ITS LONG HISTORY HAS AT TIMES BEEN MORE ALIVE TO THAT
POLICY THAN AT OTHER TIMES.  DURING THE LAST THREE DECADES IT HAS BEEN
AS DEVOTED TO IT (IF NOT MORE SO) THAN AT ANY TIME IN ITS HISTORY.  I
THINK THAT WAS DUE IN LARGE MEASURE TO THE INFLUENCE OF MR. JUSTICE
BRANDEIS AND CHIEF JUSTICE STONE.  THEY WERE ALERT TO THE DANGER THAT
BUSINESS - GROWING BIGGER AND BIGGER EACH DECADE - WOULD FASTEN ITS
HOLD MORE TIGHTLY ON THE ECONOMY THROUGH THE CHEAP SPAWNING OF PATENTS
AND WOULD USE ONE MONOPOLY TO BEGET ANOTHER THROUGH THE LEVERAGE OF KEY
PATENTS.  THEY FOLLOWED IN THE EARLY TRADITION OF THOSE WHO READ THE
CONSTITUTION TO MEAN THAT THE PUBLIC INTEREST IN PATENTS COMES FIRST,
REWARD TO THE INVENTOR SECOND.  FN1 

FIRST.  MR. JUSTICE BRANDEIS AND CHIEF JUSTICE STONE DID NOT FASHION
BUT THEY MADE MORE SECURE ONE IMPORTANT RULE DESIGNED TO CURB THE USE
OF PATENTS.  IT IS AS FOLLOWS:  ONE WHO HOLDS A PATENT ON ARTICLE A MAY
NOT LICENSE THE USE OF THE PATENT ON CONDITION THAT B, AN UNPATENTED
ARTICLE, BE BOUGHT.  FN2  SUCH A CONTRACT OR AGREEMENT WOULD BE AN
EXTENSION OF THE GRANT OF THE PATENT CONTRARY TO A LONG LINE OF
DECISIONS.  SEE MOTION PICTURE PATENTS CO. V. UNIVERSAL FILM CO., 243
U.S. 502; CARBICE CORP. V. AMERICAN PATENTS CORP., 283 U.S. 27; MORTON
SALT CO. V. SUPPIGER CO., 314 U.S. 488, 491-92; UNITED STATES V.
MASONITE CORP., 316 U.S. 265, 277, 278; MERCOID CORP. V. MID-CONTINENT
INVESTMENT CO., 320 U.S. 661, 666; UNITED STATES V. GYPSUM CO., 333
U.S. 364, 389.  FOR IT WOULD SWEEP UNDER THE PATENT AN ARTICLE THAT IS
UNPATENTED OR UNPATENTABLE.  EACH PATENT OWNER WOULD BECOME HIS OWN
PATENT OFFICE AND, BY REASON OF THE LEVERAGE OF THE PATENT, OBTAIN A
LARGER MONOPOLY OF THE MARKET THAN THE CONSTITUTION OR STATUTES
PERMIT.  FN3 

THAT IS WHAT IS DONE HERE.  HAZELTINE LICENSED AUTOMATIC RADIO TO USE
570 PATENTS AND 200 PATENT APPLICATIONS.  OF THESE AUTOMATIC USED AT
MOST 10.  AUTOMATIC RADIO WAS OBLIGATED, HOWEVER, TO PAY AS ROYALTY A
PERCENTAGE OF ITS TOTAL SALES IN CERTAIN LINES WITHOUT REGARD TO
WHETHER OR NOT THE PRODUCTS SOLD WERE PATENTED OR UNPATENTED.  THE
INEVITABLE RESULT IS THAT THE PATENTEE RECEIVED ROYALTIES ON UNPATENTED
PRODUCTS AS PART OF THE PRICE FOR THE USE OF THE PATENTS. 

THE PATENT OWNER HAS THEREFORE USED THE PATENTS TO BLUDGEON HIS WAY
INTO A PARTNERSHIP WITH THIS LICENSEE, COLLECTING ROYALTIES ON
UNPATENTED AS WELL AS PATENTED ARTICLES. 

A PLAINER EXTENSION OF A PATENT BY UNLAWFUL MEANS WOULD BE HARD TO
IMAGINE. 

SECOND.  CHIEF JUSTICE STONE WROTE FOR THE COURT IN SOLA ELECTRIC CO.
V. JEFFERSON ELECTRIC CO., 317 U.S. 173, HOLDING THAT A LICENSEE IS NOT
ESTOPPED TO CHALLENGE A PRICE-FIXING CLAUSE BY SHOWING THE PATENT IS
INVALID.  AND SEE KATZINGER CO. V. CHICAGO MFG. CO., 329 U.S. 394;
MACGREGOR V. WESTINGHOUSE CO., 329 U.S. 402.  HE ALSO WROTE FOR THE
COURT IN SCOTT PAPER CO. V. MARCALUS CO., 326 U.S. 249, HOLDING THAT
ESTOPPEL DID NOT BAR THE ASSIGNOR OF A PATENT FROM DEFENDING A SUIT FOR
INFRINGEMENT OF THE ASSIGNED PATENT ON THE GROUND THAT THE ALLEGED
INFRINGING DEVICE WAS THAT OF A PRIOR-ART EXPIRED PATENT.  FN4 

THESE DECISIONS PUT THE PROTECTION OF THE PUBLIC INTEREST IN FREE
ENTERPRISE ABOVE REWARD TO THE PATENTEE.  THE LIMITATIONS WHICH THEY
MADE ON THE ESTOPPEL DOCTRINE REPRESENTED AN ALMOST COMPLETE CYCLE BACK
TO THE SALUTARY TEACHING OF POPE MFG. CO. V. GORMULLY, 144 U.S. 224,
234, THAT, "IT IS AS IMPORTANT TO THE PUBLIC THAT COMPETITION SHOULD
NOT BE REPRESSED BY WORTHLESS PATENTS, AS THAT THE PATENTEE OF A REALLY
VALUABLE INVENTION SHOULD BE PROTECTED IN HIS MONOPOLY."  TO ESTOP THE
LICENSEE FROM ATTACKING THE VALIDITY OF PATENTS IS TO FORGET THAT "IT
IS THE PUBLIC INTEREST WHICH IS DOMINANT IN THE PATENT SYSTEM." 
MERCOID CORP. V. MID-CONTINENT INVESTMENT CO., SUPRA, AT 665. 

IT IS SAID THAT IF THE PURPOSE WAS TO ENLARGE THE MONOPOLY OF THE
PATENT - FOR EXAMPLE, THROUGH PRICE FIXING - THEN ESTOPPEL WOULD NOT
BAR THE LICENSEE FROM CHALLENGING THE VALIDITY OF THE PATENTS.  BUT
WHAT WORSE ENLARGEMENT OF MONOPOLY IS THERE THAN THE ATTACHMENT OF A
PATENT TO AN UNPATENTABLE ARTICLE?  WHEN WE CONSIDER THE CONSTITUTIONAL
STANDARD, WHAT GREATER PUBLIC HARM THAN THAT IS THERE IN THE PATENT
SYSTEM? 

IT IS ONLY RIGHT AND JUST THAT THE LICENSEE BE ALLOWED TO CHALLENGE
THE VALIDITY OF THE PATENTS.  A GREAT POOLING OF PATENTS IS MADE; AND
WHOLE INDUSTRIES ARE KNIT TOGETHER IN THE FASHION OF THE UNHOLY
ALLIANCES REVEALED IN UNITED STATES V. LINE MATERIAL CO., 333 U.S. 287,
AND UNITED STATES V. GYPSUM CO., 333 U.S. 364.  ONE WHO WANTS THE USE
OF ONE PATENT MAY HAVE TO TAKE HUNDREDS.  THE WHOLE PACKAGE MAY CONTAIN
MANY PATENTS THAT HAVE BEEN FOISTED ON THE PUBLIC.  NO OTHER PERSON
THAN THE LICENSEE WILL BE INTERESTED ENOUGH TO CHALLENGE THEM.  HE
ALONE WILL BE APT TO SEE AND UNDERSTAND THE BASIS OF THEIR ILLEGALITY. 

THE LICENSEE PROTECTS THE PUBLIC INTEREST IN EXPOSING INVALID OR
EXPIRED PATENTS AND FREEING THE PUBLIC OF THEIR TOLL.  HE SHOULD BE
ALLOWED THAT PRIVILEGE.  HE WOULD BE ALLOWED IT WERE THE PUBLIC
INTEREST CONSIDERED THE DOMINANT ONE.  RIDDING THE PUBLIC OF STALE OR
SPECIOUS PATENTS IS ONE WAY OF SERVING THE END OF THE PROGRESS OF
SCIENCE. 

WE DEPART FROM A GREAT TRADITION IN THIS FIELD (AND SEE GRAVER TANK &
MFG. CO. V. LINDE AIR PRODUCTS, 339 U.S. 605) WHEN WE AFFIRM THIS
JUDGMENT. 

FN1  SEE MR. JUSTICE STORY IN PENNOCK V. DIALOGUE, 2 PET. 1; MR.
JUSTICE DANIEL IN KENDALL V. WINSOR, 21 HOW.  322; MR. JUSTICE CAMPBELL
IN WINANS V. DENMEAD, 15 HOW.  330, 344(DISSENTING OPINION). 

FN2  SEE HAMILTON, PATENTS AND FREE ENTERPRISE, T.N.E.C. MONOGRAPH
NO. 31, 76TH CONG., 3D SESS., PP. 62-70. 

FN3  MR. JUSTICE BRANDEIS SPEAKING FOR THE COURT IN CARBICE CORP. V.
AMERICAN PATENTS CORP., SUPRA, P. 32, SAID, "IF A MONOPOLY COULD BE SO
EXPANDED, THE OWNER OF A PATENT FOR A PRODUCT MIGHT CONCEIVABLY
MONOPOLIZE THE COMMERCE IN A LARGE PART OF UNPATENTED MATERIALS USED IN
ITS MANUFACTURE.  THE OWNER OF A PATENT FOR A MACHINE MIGHT THEREBY
SECURE A PARTIAL MONOPOLY ON THE UNPATENTED SUPPLIES CONSUMED IN ITS
OPERATION.  THE OWNER OF A PATENT FOR A PROCESS MIGHT SECURE A PARTIAL
MONOPOLY ON THE UNPATENTED MATERIAL EMPLOYED IN IT.  THE OWNER OF THE
PATENT IN SUIT MIGHT CONCEIVABLY SECURE A LIMITED MONOPOLY FOR THE
SUPPLYING NOT ONLY OF SOLID CARBON DIOXIDE, BUT ALSO OF THE ICE CREAM
AND OTHER FOODS, AS WELL AS OF THE CARTONS IN WHICH THEY ARE SHIPPED. 
THE ATTEMPT TO LIMIT THE LICENSEE TO THE USE OF UNPATENTED MATERIALS
PURCHASED FROM THE LICENSOR IS COMPARABLE TO THE ATTEMPT OF A PATENTEE
TO FIX THE PRICE AT WHICH THE PATENTED ARTICLE MAY BE RESOLD." 

FN4  IN THIS CASE CHIEF JUSTICE STONE EMPHASIZED THE PUBLIC INTEREST
AT STAKE IN ALLOWING THE CHALLENGE TO THE PATENT (326 U.S. P. 256):
"BY THE FORCE OF THE PATENT LAWS NOT ONLY IS THE INVENTION OF A PATENT
DEDICATED TO THE PUBLIC UPON ITS EXPIRATION, BUT THE PUBLIC THEREBY
BECOMES ENTITLED TO SHARE IN THE GOOD WILL WHICH THE PATENTEE HAS BUILT
UP IN THE PATENTED ARTICLE OR PRODUCT THROUGH THE ENJOYMENT OF HIS
PATENT MONOPOLY." 
..END :




















LYON V. SINGER, 339 U.S. 841 


ARGUED APRIL 18-19, 1950.  - DECIDED JUNE 5, 1950.  - 299 N.Y. 113, 139,
85 N.E.2D 894, 906, AFFIRMED. 


1.  IN THESE SUITS TO COLLECT FROM A STATUTORY BANK LIQUIDATOR CLAIMS
ALLEGEDLY ENTITLED TO PREFERENCE UNDER NEW YORK BANKING LAW SEC. 606,
ARISING FROM TRANSACTIONS WITH A JAPANESE CORPORATION BLOCKED UNDER
EXECUTIVE ORDERS NOS. 8389 AND 8832, THIS COURT ACCEPTS THE
DETERMINATION OF THE NEW YORK COURT OF APPEALS THAT, UNDER NEW YORK
LAW, THESE CLAIMS AROSE FROM TRANSACTIONS IN NEW YORK AND WERE ENTITLED
TO PREFERENCE.  PP. 842-843. 

2.  SINCE THE NEW YORK COURT CONDITIONED ENFORCEMENT OF THE CLAIMS
UPON LICENSING BY THE ALIEN PROPERTY CUSTODIAN, FEDERAL CONTROL OVER
ALIEN PROPERTY REMAINS UNDIMINISHED.  PROPPER V. CLARK, 337 U.S. 472,
DISTINGUISHED.  P. 842. 

3.  THIS COURT AGREES THAT, AT THE TIME THE NEW YORK JUDGMENTS WERE
ENTERED, NO LICENSES HAD BEEN ISSUED TO THESE CLAIMANTS; AND IT AFFIRMS
THE JUDGMENTS BELOW.  P. 843. 

LYON, SUPERINTENDENT OF BANKS, V. SINGER. 

NO. 512.  CERTIORARI TO THE COURT OF APPEALS OF NEW YORK* . 

*TOGETHER WITH NO. 527, SINGER V. YOKOHAMA SPECIE BANK, LTD. ET AL.;
NO. 513, LYON, SUPERINTENDENT OF BANKS, V. BANQUE MELLIE IRAN; AND NO.
528, BANQUE MELLIE IRAN V. LYON, SUPERINTENDENT OF BANKS, ALSO ON
CERTIORARI TO THE SAME COURT. 

PER CURIAM. 

CERTIORARI WAS GRANTED IN THESE CASES TO REVIEW FEDERAL ISSUES
RESPECTING THE ADMINISTRATION OF FROZEN ALIEN PROPERTY.  339 U.S. 902. 

THE CASES AROSE FROM SUITS BROUGHT BY CLAIMANTS SINGER AND BANQUE
MELLIE IRAN TO COLLECT FROM A STATUTORY BANK LIQUIDATOR CLAIMS
ALLEGEDLY ENTITLED TO A PREFERENCE UNDER NEW YORK BANKING LAW SEC. 606,
ARISING FROM TRANSACTIONS WITH A JAPANESE CORPORATION, BLOCKED UNDER
EXECUTIVE ORDERS NOS. 8389, 5 FED. REG. 1400; 8832, 6 FED. REG. 3715. 
THE NEW YORK COURT OF APPEALS HELD THAT THE TRANSACTIONS GAVE RISE TO A
PREFERRED CLAIM IN THE LIQUIDATION BUT THAT PAYMENT BY THE LIQUIDATOR
MUST AWAIT SPECIFIC LICENSING BY THE ALIEN PROPERTY CUSTODIAN OF THE
TRANSACTIONS UNDERLYING THE CLAIMS.  SINGER V. YOKOHAMA SPECIE BANK,
LTD., 293 N.Y. 542, 58 N.E.2D 726, 299 N.Y. 113, 85 N.E.2D 894; BANQUE
MELLIE IRAN V. YOKOHAMA SPECIE BANK, LTD., 299 N.Y. 139, 85 N.E.2D
906. 

THOSE OPPOSED TO THE JUDGMENTS URGE THAT, AS A MATTER OF FEDERAL LAW,
THE FREEZING ORDER PREVENTED THE CREATION OF ANY CLAIM RECOGNIZABLE
UNDER SEC. 606 OF THE NEW YORK BANKING LAW. 

ORAL ARGUMENT AND STUDY OF THE RECORD HAVE CONVINCED US THAT THE
JUDGMENTS OF THE NEW YORK COURT OF APPEALS ARE NOT INCONSISTENT WITH
THE FIRST WAR POWERS ACT OF 1941, SEC. 301, 55 STAT. 839, OR THE ABOVE
EXECUTIVE ORDERS.  WE ACCEPT THE NEW YORK COURT'S DETERMINATION THAT
UNDER NEW YORK LAW THESE CLAIMS AROSE FROM TRANSACTIONS IN NEW YORK AND
WERE ENTITLED TO A PREFERENCE.  SINCE THE NEW YORK COURT CONDITIONED
ENFORCEMENT OF THE CLAIMS UPON LICENSING BY THE ALIEN PROPERTY
CUSTODIAN, FEDERAL CONTROL OVER ALIEN PROPERTY REMAINS UNDIMINISHED. 
OUR DECISION IN PROPPER V. CLARK, 337 U.S. 472, DOES NOT REQUIRE A
CONTRARY CONCLUSION.  THERE THE LIQUIDATOR CLAIMED TITLE TO FROZEN
ASSETS ADVERSELY TO THE CUSTODIAN, AND SOUGHT TO DENY THE CUSTODIAN'S
PARAMOUNT POWER TO VEST THE ALIEN PROPERTY IN THE UNITED STATES.  NO
SUCH RESULT FOLLOWS FROM THE NEW YORK COURT'S JUDGMENTS IN THE PRESENT
CASES. 

SINCE WE FURTHER AGREE THAT, AT THE TIME THE NEW YORK JUDGMENTS WERE
ENTERED, NO LICENSES HAD BEEN ISSUED TO THESE CLAIMANTS, WE AFFIRM THE
JUDGMENTS BELOW.  AFFIRMED. 

MR. JUSTICE FRANKFURTER IS OF THE OPINION THAT SINCE THE FEDERAL
QUESTION IN NOS. 513 AND 528 HAS BEEN ELIMINATED BY THE LICENSE GRANTED
BY THE DIRECTOR, OFFICE OF ALIEN PROPERTY, NO JURISDICTION TO REVIEW
REMAINS IN THIS COURT.  THEREFORE, THE WRITS OF CERTIORARI IN THESE TWO
CASES SHOULD BE DISMISSED. 
..END :


















ROBERTS V. U.S. DISTRICT COURT, 339 U.S. 844 


NO. 2, MISC.  ARGUED MARCH 31, 1950.  - DECIDED JUNE 5, 1950.  - MOTION
DENIED. 


1.  WHETHER ONE IS A "CITIZEN" FOR THE PURPOSE OF IN FORMA PAUPERIS
PROCEEDINGS IN THE FEDERAL COURTS UNDER 28 U.S.C. SEC. 1915 IS A
QUESTION SOLELY OF FEDERAL LAW.  PP. 844-845. 

2. CONGRESS HAS NOT PRESCRIBED LOSS OF CITIZENSHIP FOR CONVICTION OF
CRIMES OTHER THAN DESERTION AND TREASON.  P. 845. 

3.  AN ORDER OF A FEDERAL DISTRICT COURT DENYING A MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS IS APPEALABLE TO THE COURT OF APPEALS
UNDER 28 U.S.C. SEC. 1291.  P. 845. 

4.  PETITIONER'S MOTION IN THIS COURT FOR LEAVE TO FILE A PETITION
FOR A WRIT OF MANDAMUS TO THE DISTRICT COURT IS DENIED, BECAUSE OF THE
AMBIGUOUS STATE OF THE RECORD IN THE CASE AND THE FACT THAT DENIAL OF
THE MOTION WILL NOT PREJUDICE FURTHER APPLICATIONS BY PETITIONER FOR
LEAVE TO PROCEED IN FORMA PAUPERIS.  P. 845. 

ROBERTS V. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA ET AL. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS. 

PER CURIAM. 

PETITIONER, WHO IS CONFINED IN A CALIFORNIA STATE PRISON, SOUGHT TO
FILE A PETITION IN FORMA PAUPERIS FOR A WRIT OF INJUNCTION IN THE
DISTRICT COURT BELOW.  THAT COURT DENIED LEAVE TO PROCEED IN FORMA
PAUPERIS, HOLDING THAT PETITIONER WAS NOT ENTITLED TO THE BENEFITS OF
28 U.S.C. SEC. 1915 BECAUSE HE WAS NO LONGER A "CITIZEN" AS REQUIRED BY
THAT SECTION.  THE DISTRICT COURT REACHED THAT DECISION IN RELIANCE ON
CALIFORNIA PENAL CODE SEC. 2600, WHICH PROVIDES THAT ONE SENTENCED TO
IMPRISONMENT FOR A TERM OF YEARS IS DEPRIVED OF HIS CIVIL RIGHTS FOR
THE PERIOD OF IMPRISONMENT.  THE DECISION OF THE DISTRICT COURT IS IN
ERROR.  CITIZENSHIP FOR THE PURPOSE OF IN FORMA PAUPERIS PROCEEDINGS IN
THE FEDERAL COURTS IS SOLELY A MATTER OF FEDERAL LAW.  CONGRESS HAS NOT
SPECIFIED CRIMINAL CONVICTIONS, EXCEPT FOR DESERTION AND TREASON, AS
GROUNDS FOR LOSS OF CITIZENSHIP.  8 U.S.C. SEC. 801. 

PETITIONER THEREAFTER FILED A MOTION IN THE COURT OF APPEALS FOR THE
NINTH CIRCUIT FOR ALLOWANCE OF AN APPEAL FROM THE ORDER OF THE DISTRICT
COURT.  THE DENIAL BY A DISTRICT JUDGE OF A MOTION TO PROCEED IN FORMA
PAUPERIS IS AN APPEALABLE ORDER.  28 U.S.C. SEC. 1291; SEE COHEN V.
BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541(1949).  THE COURT OF
APPEALS, HOWEVER, HELD THAT IT HAD "NO POWER TO GRANT AN APPLICATION
FOR ALLOWANCE OF AN APPEAL," AND DISMISSED THE PETITION. 

FINALLY, PETITIONER FILED IN THIS COURT A MOTION FOR LEAVE TO FILE A
PETITION FOR A WRIT OF MANDAMUS TO THE DISTRICT COURT.  MANDAMUS IS AN
EXTRAORDINARY REMEDY, AVAILABLE ONLY IN RARE CASES.  EX PARTE COLLETT,
337 U.S. 55, 72(1949), AND CASES THERE CITED.  BECAUSE OF THE AMBIGUOUS
STATE OF THIS RECORD, AND THE FACT THAT A DENIAL OF THIS MOTION WILL
NOT PREJUDICE PETITIONER IN FURTHER ATTEMPTS TO PROCEED IN FORMA
PAUPERIS, THE MOTION MUST BE DENIED.  IT IS SO ORDERED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :












OSMAN V. DOUDS, 339 U.S. 846 


NO. 12.  DECIDED JUNE 5, 1950.  - AFFIRMED. 


146, 29 U.S.C. SEC. 159(H), PERTAINING TO "NON-COMMUNIST" AFFIDAVITS,
IS VALID UNDER THE FEDERAL CONSTITUTION.  AMERICAN COMMUNICATIONS ASSN.
V. DOUDS, 339 U.S. 382.  PP. 846-847. 

OSMAN ET AL. V. DOUDS, REGIONAL DIRECTOR OF THE NATIONAL LABOR
RELATIONS BOARD. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

IN A SUIT BROUGHT BY THE APPELLANTS TO ENJOIN THE APPELLEE FROM
ENFORCING THE PROVISIONS OF SEC. 9(H) OF THE NATIONAL LABOR RELATIONS
ACT, AS AMENDED, 61 STAT. 146, 29 U.S.C. SEC. 159(H), A THREE-JUDGE
DISTRICT COURT DISMISSED THE COMPLAINT ON THE MERITS.  ON DIRECT APPEAL
TO THIS COURT, AFFIRMED, P. 848. 

PER CURIAM. 

THIS CASE WAS HERETOFORE HELD FOR, AND PRESENTS THE SAME ISSUES
INVOLVED IN, AMERICAN COMMUNICATIONS ASSOCIATION V. DOUDS, AND UNITED
STEELWORKERS OF AMERICA V. LABOR BOARD, DECIDED MAY 8, 1950, 339 U.S.
382.  IN THESE CASES THE COURT UPHELD THE CONSTITUTIONALITY OF SEC.
9(H) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR
MANAGEMENT RELATIONS ACT OF 1947, 61 STAT. 136, 146, 29 U.S.C. (SUPP.
III) SECS. 141, 159(H), WHICH PROVIDES: 

"NO INVESTIGATION SHALL BE MADE BY THE (NATIONAL LABOR RELATIONS)
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 SUBSECTION (E)(1) OF THIS SECTION SHALL
BE ENTERTAINED, 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 THERE IS ON FILE WITH THE BOARD AN AFFIDAVIT
EXECUTED CONTEMPORANEOUSLY OR WITHIN THE PRECEDING TWELVE-MONTH PERIOD
BY EACH OFFICER OF SUCH LABOR ORGANIZATION AND THE OFFICERS OF ANY
NATIONAL OR INTERNATIONAL LABOR ORGANIZATION OF WHICH IT IS AN
AFFILIATE OR CONSTITUENT UNIT 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." 

WITH REGARD TO THAT PART OF THE SECTION WHICH IS CONCERNED WITH
MEMBERSHIP IN, OR AFFILIATION WITH, THE COMMUNIST PARTY, THE COURT
HOLDS THE REQUIREMENT TO BE CONSTITUTIONAL.  MR. JUSTICE BLACK DISSENTS
FOR REASONS STATED IN HIS DISSENT IN AMERICAN COMMUNICATIONS
ASSOCIATION V. DOUDS, SUPRA. 

WITH REGARD TO THE CONSTITUTIONALITY OF OTHER RELEVANT PARTS OF THE
VIEWS EXPRESSED BY THE CHIEF JUSTICE, WHO WAS JOINED BY MR. JUSTICE
REED AND MR. JUSTICE BURTON IN THE CASES ABOVE CITED.  MR. JUSTICE
BLACK, MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON ADHERE TO THEIR
OPINIONS IN THOSE CASES.  MR. JUSTICE DOUGLAS JOINS THE DISSENTING
OPINIONS OF MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER AND MR. JUSTICE
JACKSON INSOFAR AS THEY HOLD UNCONSTITUTIONAL THE PORTION OF THE OATH
DEALING WITH BELIEFS, AND BEING OF THE VIEW THAT PROVISIONS OF THE OATH
ARE NOT SEPARABLE VOTES TO REVERSE.  HE THEREFORE DOES NOT FIND IT
NECESSARY TO REACH THE QUESTION OF THE CONSTITUTIONALITY OF THE OTHER
PART OF THE OATH.  THE JUDGMENT OF THE DISTRICT COURT IS THEREFORE
AFFIRMED. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




EWING V. MYTINGER & CASSELBERRY, 339 U.S. 594 


NO. 568.  ARGUED APRIL 19-20, 1950.  - DECIDED MAY 29, 1950.  - 87
F.SUPP.  650, REVERSED. 


AMENDED, PERMITS MULTIPLE SEIZURES OF MISBRANDED ARTICLES "WHEN THE
ADMINISTRATOR HAS PROBABLE CAUSE TO BELIEVE FROM FACTS FOUND, WITHOUT
HEARING,  ...  THAT THE MISBRANDED ARTICLE IS DANGEROUS TO HEALTH, OR
THAT THE LABELING OF THE MISBRANDED ARTICLE IS FRAUDULENT, OR WOULD BE
IN A MATERIAL RESPECT MISLEADING TO THE INJURY OR DAMAGE OF THE
PURCHASER OR CONSUMER."  UPON THE ADMINISTRATOR'S FINDING, WITHOUT A
HEARING, OF PROBABLE CAUSE TO BELIEVE THAT THE LABELING OF A VITAMIN
PRODUCT DISTRIBUTED BY THE APPELLEE IN INTERSTATE COMMERCE WAS
"MISLEADING TO THE INJURY OR DAMAGE OF THE PURCHASER OR CONSUMER,"
ELEVEN SEIZURES OF THE PRODUCT WERE MADE AND AS MANY LIBEL SUITS
INSTITUTED OVER A FOUR-MONTH PERIOD.  THERE WAS NO CLAIM THAT THE
PRODUCT WAS HARMFUL OR DANGEROUS TO HEALTH.  APPELLEE BROUGHT SUIT IN
THE FEDERAL DISTRICT COURT TO HAVE THE MULTIPLE SEIZURE PROVISION OF
SEC. 304(A) DECLARED UNCONSTITUTIONAL AND TO DISMISS ALL EXCEPT THE
FIRST LIBEL SUIT.  HELD: 

1.  THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT DOES NOT REQUIRE
THAT THERE BE AFFORDED A HEARING IN CONNECTION WITH THE ADMINISTRATIVE
DETERMINATION TO MAKE MULTIPLE SEIZURES, BUT IS SATISFIED BY THE
OPPORTUNITY WHICH THE CLAIMANT HAS FOR A FULL HEARING BEFORE THE COURT
IN THE LIBEL PROCEEDINGS.  PP. 598-600. 

(A)  IN MAKING THE FINDING HERE INVOLVED, THE ADMINISTRATIVE AGENCY
WAS MERELY DETERMINING WHETHER A JUDICIAL PROCEEDING SHOULD BE
INSTITUTED, SUBJECT TO FINAL DETERMINATION BY THE ATTORNEY GENERAL. 
PP. 598-599. 

(B)  WHERE ONLY PROPERTY RIGHTS ARE INVOLVED, THE REQUIREMENTS OF DUE
PROCESS ARE SATISFIED IF THERE IS AN OPPORTUNITY FOR A HEARING AND A
JUDICIAL DETERMINATION AT SOME STAGE.  PP. 599-600. 

2.  THE DISTRICT COURT HAD NO JURISDICTION TO REVIEW THE
ADMINISTRATIVE DETERMINATION OF PROBABLE CAUSE.  PP. 600-602. 

3.  THE FACT THAT THE PREPARATION HERE INVOLVED IS NOT DANGEROUS TO
HEALTH DOES NOT REQUIRE A DIFFERENT RESULT, SINCE THE STATUTORY SCHEME
TREATS EVERY "MISBRANDED ARTICLE" THE SAME IN THIS RESPECT - WHETHER IT
IS "DANGEROUS TO HEALTH," OR ITS LABELING IS "FRAUDULENT" OR MATERIALLY
"MISLEADING TO THE INJURY OR DAMAGE OF THE PURCHASER OR CONSUMER."  P.
601. 

4.  CONSOLIDATION OF THE LIBEL SUITS SO THAT ONE TRIAL MAY BE HAD IS
THE RELIEF AGAINST MULTIPLICITY OF SUITS AFFORDED BY THE STATUTE TO THE
CLAIMANT OF THE SEIZED GOODS.  P. 602. 

EWING, FEDERAL SECURITY ADMINISTRATOR, ET AL. V. MYTINGER &
CASSELBERRY, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

IN A SUIT BROUGHT BY THE APPELLEE, THE DISTRICT COURT ENJOINED THE
ENFORCEMENT OF THE MULTIPLE SEIZURE PROVISION OF SEC. 304(A) OF THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT, AS VIOLATIVE OF THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT OF THE FEDERAL CONSTITUTION.  87 F.SUPP. 
650.  ON DIRECT APPEAL TO THIS COURT, REVERSED, P. 602. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL  FN1  FROM A THREE-JUDGE DISTRICT COURT SPECIALLY
CONSTITUTED ON APPELLEE'S APPLICATION FOR AN INJUNCTION TO RESTRAIN
ENFORCEMENT OF A PORTION OF AN ACT OF CONGRESS FOR REPUGNANCE TO THE
DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  FN2 

1044, 21 U.S.C. SEC. 334(A), AS AMENDED, 62 STAT. 582, 21 U.S.C. (SUPP.
III) SEC. 334(A), PERMITS MULTIPLE SEIZURES OF MISBRANDED ARTICLES
"WHEN THE ADMINISTRATOR HAS PROBABLE CAUSE TO BELIEVE FROM FACTS FOUND,
WITHOUT HEARING, BY HIM OR ANY OFFICER OR EMPLOYEE OF THE AGENCY THAT
THE MISBRANDED ARTICLE IS DANGEROUS TO HEALTH, OR THAT THE LABELING OF
THE MISBRANDED ARTICLE IS FRAUDULENT, OR WOULD BE IN A MATERIAL RESPECT
MISLEADING TO THE INJURY OR DAMAGE OF THE PURCHASER OR CONSUMER."  FN3 

APPELLEE IS THE EXCLUSIVE NATIONAL DISTRIBUTOR OF NUTRILITE FOOD
SUPPLEMENT, AN ENCAPSULATED CONCENTRATE OF ALFALFA, WATER CRESS,
PARSLEY, AND SYNTHETIC VITAMINS COMBINED IN A PACKAGE WITH MINERAL
TABLETS.  THERE IS NO CLAIM THAT THE INGREDIENTS OF THE PREPARATION ARE
HARMFUL OR DANGEROUS TO HEALTH.  THE SOLE CLAIM IS THAT THE LABELING
WAS, TO USE THE STATUTORY WORDS, "MISLEADING TO THE INJURY OR DAMAGE OF
THE PURCHASER OR CONSUMER" AND THAT THEREFORE THE PREPARATION WAS
"MISBRANDED" WHEN INTRODUCED INTO INTERSTATE COMMERCE. 

THIS WAS INDEED THE ADMINISTRATIVE FINDING BEHIND ELEVEN SEIZURES
RESULTING IN THAT NUMBER OF LIBEL SUITS, BETWEEN SEPTEMBER AND
DECEMBER, 1948.  THE MISBRANDING, IT WAS FOUND, RESULTED FROM THE
BOOKLET WHICH ACCOMPANIED THE PREPARATION.  FN4  SHORTLY THEREAFTER THE
PRESENT SUIT WAS INSTITUTED TO HAVE THE MULTIPLE SEIZURE PROVISION OF
SEC. 304(A) DECLARED UNCONSTITUTIONAL AND TO DISMISS ALL LIBEL CASES
EXCEPT THE FIRST ONE INSTITUTED.  THE DISTRICT COURT HELD THAT
APPELLANTS HAD ACTED ARBITRARILY AND CAPRICIOUSLY IN VIOLATION OF THE
FIFTH AMENDMENT IN INSTITUTING MULTIPLE LIBEL SUITS WITHOUT FIRST
AFFORDING THE APPELLEE A HEARING ON THE PROBABLE CAUSE ISSUE; THAT THE
MULTIPLE SEIZURE PROVISION OF SEC. 304(A) WAS UNCONSTITUTIONAL UNDER
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT; AND THAT APPELLANTS
SHOULD BE PERMANENTLY ENJOINED FROM INSTITUTING ANY ACTION RAISING A
CLAIM THAT THE BOOKLET ACCOMPANYING THE PREPARATION WAS A MISBRANDING
SINCE IT WAS NOT FRAUDULENT, FALSE, OR MISLEADING.  87 F.SUPP.  650. 

FIRST.  THE ADMINISTRATIVE FINDING OF PROBABLE CAUSE REQUIRED BY SEC.
304(A) IS MERELY THE STATUTORY PREREQUISITE TO THE BRINGING OF THE
LAWSUIT.  WHEN THE LIBELS ARE FILED THE OWNER HAS AN OPPORTUNITY TO
APPEAR AS A CLAIMANT AND TO HAVE A FULL HEARING BEFORE THE COURT.  FN5
THIS HEARING, WE CONCLUDE, SATISFIES THE REQUIREMENTS OF DUE PROCESS. 

AT TIMES A PRELIMINARY DECISION BY AN AGENCY IS A STEP IN AN
ADMINISTRATIVE PROCEEDING.  WE HAVE REPEATEDLY HELD THAT NO HEARING AT
THE PRELIMINARY STAGE IS REQUIRED BY DUE PROCESS SO LONG AS THE
REQUISITE HEARING IS HELD BEFORE THE FINAL ADMINISTRATIVE ORDER BECOMES
EFFECTIVE.  SEE LICHTER V. UNITED STATES, 334 U.S. 742; INLAND EMPIRE
COUNCIL V. MILLIS, 325 U.S. 697; OPP COTTON MILLS V. ADMINISTRATOR, 312
U.S. 126. 

BUT THIS CASE DOES NOT GO AS FAR.  HERE AN ADMINISTRATIVE AGENCY IS
MERELY DETERMINING WHETHER A JUDICIAL PROCEEDING SHOULD BE INSTITUTED. 
MOREOVER, ITS FINDING OF PROBABLE CAUSE, WHILE A NECESSARY PREREQUISITE
TO MULTIPLE SEIZURES, HAS NO EFFECT IN AND OF ITSELF.  ALL PROCEEDINGS
FOR THE ENFORCEMENT OF THE ACT OR TO RESTRAIN VIOLATIONS OF IT MUST BE
BROUGHT BY AND IN THE NAME OF THE UNITED STATES.  SEC. 307.  WHETHER A
SUIT WILL BE INSTITUTED DEPENDS ON THE ATTORNEY GENERAL, NOT ON THE
ADMINISTRATIVE AGENCY.  HE MAY OR MAY NOT ACCEPT THE AGENCY'S
RECOMMENDATION.  IF HE DOES, SEIZURES ARE MADE AND LIBELS ARE
INSTITUTED.  BUT THE SEIZURES AND SUITS ARE DEPENDENT ON THE DISCRETION
OF THE ATTORNEY GENERAL. 

IT IS SAID THAT THESE MULTIPLE SEIZURE DECISIONS OF THE ADMINISTRATOR
CAN CAUSE IRREPARABLE DAMAGE TO A BUSINESS.  AND SO THEY CAN.  THE
IMPACT OF THE INITIATION OF JUDICIAL PROCEEDINGS IS OFTEN SERIOUS. 
TAKE THE CASE OF THE GRAND JURY.  IT RETURNS AN INDICTMENT AGAINST A
MAN WITHOUT A HEARING.  IT DOES NOT DETERMINE HIS GUILT; IT ONLY
DETERMINES WHETHER THERE IS PROBABLE CAUSE TO BELIEVE HE IS GUILTY. 
BUT THAT DETERMINATION IS CONCLUSIVE ON THE ISSUE OF PROBABLE CAUSE. 
AS A RESULT THE DEFENDANT CAN BE ARRESTED AND HELD FOR TRIAL.  SEE
BEAVERS V. HENKEL, 194 U.S. 73, 85; EX PARTE UNITED STATES, 287 U.S.
241, 250.  THE IMPACT OF AN INDICTMENT IS ON THE REPUTATION OR LIBERTY
OF A MAN.  THE SAME IS TRUE WHERE A PROSECUTOR FILES AN INFORMATION
CHARGING VIOLATIONS OF THE LAW.  THE HARM TO PROPERTY AND BUSINESS CAN
ALSO BE INCALCULABLE BY THE MERE INSTITUTION OF PROCEEDINGS.  YET IT
HAS NEVER BEEN HELD THAT THE HAND OF GOVERNMENT MUST BE STAYED UNTIL
THE COURTS HAVE AN OPPORTUNITY TO DETERMINE WHETHER THE GOVERNMENT IS
JUSTIFIED IN INSTITUTING SUIT IN THE COURTS.  DISCRETION OF ANY
OFFICIAL MAY BE ABUSED.  YET IT IS NOT A REQUIREMENT OF DUE PROCESS
THAT THERE BE JUDICIAL INQUIRY BEFORE DISCRETION CAN BE EXERCISED.  IT
IS SUFFICIENT, WHERE ONLY PROPERTY RIGHTS ARE CONCERNED, THAT THERE IS
AT SOME STAGE AN OPPORTUNITY FOR A HEARING AND A JUDICIAL
DETERMINATION.  PHILLIPS V. COMMISSIONER, 283 U.S. 589, 596-597; BOWLES
V. WILLINGHAM, 321 U.S. 503, 520; YAKUS V. UNITED STATES, 321 U.S. 414,
442-443. 

ONE OF THE OLDEST EXAMPLES IS THE SUMMARY DESTRUCTION OF PROPERTY
WITHOUT PRIOR NOTICE OR HEARING FOR THE PROTECTION OF PUBLIC HEALTH. 
THERE IS NO CONSTITUTIONAL REASON WHY CONGRESS IN THE INTERESTS OF
CONSUMER PROTECTION MAY NOT EXTEND THAT AREA OF CONTROL.  IT MAY
CONCLUDE, AS IT DID HERE, THAT PUBLIC DAMAGE MAY RESULT EVEN FROM
HARMLESS ARTICLES IF THEY ARE ALLOWED TO BE SOLD AS PANACEAS FOR MAN'S
ILLS.  A REQUIREMENT FOR A HEARING, AS A MATTER OF CONSTITUTIONAL
RIGHT, DOES NOT ARISE MERELY BECAUSE THE DANGER OF INJURY MAY BE MORE
APPARENT OR IMMEDIATE IN THE ONE CASE THAN IN THE OTHER.  FOR ALL WE
KNOW, THE MOST DAMAGE MAY COME FROM MISLEADING OR FRAUDULENT LABELS. 
THAT IS A DECISION FOR CONGRESS, NOT FOR US.  THE DECISION OF CONGRESS
WAS THAT THE ADMINISTRATIVE DETERMINATION TO MAKE MULTIPLE SEIZURES
SHOULD BE MADE WITHOUT A HEARING.  WE CANNOT SAY THAT DUE PROCESS
REQUIRES ONE AT THAT STAGE. 

SECOND.  THE DISTRICT COURT HAD NO JURISDICTION TO REVIEW THE
ADMINISTRATIVE DETERMINATION OF PROBABLE CAUSE. 

THE DETERMINATION OF PROBABLE CAUSE IN AND OF ITSELF HAD NO BINDING
LEGAL CONSEQUENCE ANY MORE THAN DID THE FINAL VALUATION MADE BY THE
INTERSTATE COMMERCE COMMISSION IN UNITED STATES V. LOS ANGELES & S.L.R.
CO., 273 U.S. 299.  IT TOOK THE EXERCISE OF DISCRETION ON THE PART OF
THE ATTORNEY GENERAL, AS WE HAVE POINTED OUT ABOVE, TO BRING IT INTO
PLAY AGAINST APPELLEE'S BUSINESS.  JUDICIAL REVIEW OF SUCH A
PRELIMINARY STEP IN A JUDICIAL PROCEEDING IS SO UNIQUE THAT WE ARE NOT
WILLING EASILY TO INFER THAT IT EXISTS. 

JUDICIAL REVIEW OF THIS PRELIMINARY PHASE OF THE ADMINISTRATIVE
PROCEDURE DOES NOT FIT THE STATUTORY SCHEME NOR SERVE THE POLICY OF THE
ACT.  CONGRESS MADE NUMEROUS ADMINISTRATIVE DETERMINATIONS UNDER THE
ACT REVIEWABLE BY THE COURTS.  FN6  BUT IT DID NOT PLACE THE FINDING OF
PROBABLE CAUSE UNDER SEC. 304(A) IN THAT CATEGORY.  THIS HIGHLY
SELECTIVE MANNER IN WHICH CONGRESS HAS PROVIDED FOR JUDICIAL REVIEW
REINFORCES THE INFERENCE THAT THE ONLY REVIEW OF THE ISSUE OF PROBABLE
CAUSE WHICH CONGRESS GRANTED WAS THE ONE PROVIDED IN THE LIBEL SUIT. 
CF. SWITCHMEN'S UNION V. BOARD, 320 U.S. 297, 305-306. 

THE PURPOSE OF THE MULTIPLE SEIZURE PROVISION IS PLAIN.  IT IS TO
ARREST THE DISTRIBUTION OF AN ARTICLE THAT IS DANGEROUS, OR WHOSE
LABELING IS FRAUDULENT OR MISLEADING, PENDING A DETERMINATION OF THE
ISSUE OF ADULTERATION OR MISBRANDING.  THE PUBLIC THEREFORE HAS A STAKE
IN THE JURISDICTIONAL ISSUE BEFORE US.  IF THE DISTRICT COURT CAN STEP
IN, STAY THE INSTITUTION OF SEIZURES, AND BRING THE ADMINISTRATIVE
REGULATION TO A HALT UNTIL IT HEARS THE CASE, THE PUBLIC WILL BE DENIED
THE SPEEDY PROTECTION WHICH CONGRESS PROVIDED BY MULTIPLE SEIZURES.  IT
IS NOT ENOUGH TO SAY THAT THE VITAMIN PREPARATION IN THE PRESENT CASE
IS NOT DANGEROUS TO HEALTH.  THIS PREPARATION MAY BE RELATIVELY
INNOCUOUS.  BUT THE STATUTORY SCHEME TREATS EVERY "MISBRANDED ARTICLE"
THE SAME IN THIS RESPECT - WHETHER IT IS "DANGEROUS TO HEALTH," OR ITS
LABELING IS "FRAUDULENT," OR MATERIALLY "MISLEADING TO THE INJURY OR
DAMAGE OF THE PURCHASER OR CONSUMER."  FN7  WHAT WE DO TODAY DETERMINES
THE JURISDICTION OF THE DISTRICT COURT IN ALL THE CASES IN THAT
CATEGORY.  IF THE COURT IN THE PRESENT CASE CAN HALT ALL MULTIPLE
SEIZURES BUT ONE, SO CAN THE COURT IN OTHER CASES.  THE MEANS WHICH
CONGRESS PROVIDED TO PROTECT CONSUMERS AGAINST THE INJURIOUS
CONSEQUENCES OF PROTRACTED PROCEEDINGS WOULD THEN BE SERIOUSLY
IMPAIRED.  CONGRESS WEIGHED THE POTENTIAL INJURY TO THE PUBLIC FROM
MISBRANDED ARTICLES AGAINST THE INJURY TO THE PURVEYOR OF THE ARTICLE
FROM A TEMPORARY INTERFERENCE WITH ITS DISTRIBUTION AND DECIDED IN
FAVOR OF THE SPEEDY, PREVENTIVE DEVICE OF MULTIPLE SEIZURES.  WE WOULD
IMPAIR OR DESTROY THE EFFECTIVENESS OF THAT DEVICE IF WE SANCTIONED THE
INTERFERENCE WHICH A GRANT OF JURISDICTION TO THE DISTRICT COURT WOULD
ENTAIL.  MULTIPLE SEIZURES ARE THE MEANS OF PROTECTION AFFORDED THE
PUBLIC.  CONSOLIDATION OF ALL THE LIBEL SUITS SO THAT ONE TRIAL MAY BE
HAD  FN8  IS THE RELIEF AFFORDED THE DISTRIBUTORS OF THE ARTICLES.  FN9
REVERSED. 

FN1  62 STAT. 928, 961, 28 U.S.C. SECS. 1253, 2101. 

FN2  62 STAT. 968, 28 U.S.C. SECS. 2282, 2284. 

FN3  THE PROVISION OF WHICH THE QUOTED PORTION IS A PART READS AS
FOLLOWS: 

"ANY ARTICLE OF FOOD, DRUG, DEVICE, OR COSMETIC THAT IS ADULTERATED
OR MISBRANDED WHEN INTRODUCED INTO OR WHILE IN INTERSTATE COMMERCE OR
WHILE HELD FOR SALE (WHETHER OR NOT THE FIRST SALE) AFTER SHIPMENT IN
INTERSTATE COMMERCE, OR WHICH MAY NOT, UNDER THE PROVISIONS OF SECTION
404 OR 505, BE INTRODUCED INTO INTERSTATE COMMERCE, SHALL BE LIABLE TO
BE PROCEEDED AGAINST WHILE IN INTERSTATE COMMERCE, OR AT ANY TIME
THEREAFTER, ON LIBEL OF INFORMATION AND CONDEMNED IN ANY DISTRICT COURT
OF THE UNITED STATES WITHIN THE JURISDICTION OF WHICH THE ARTICLE IS
FOUND: PROVIDED, HOWEVER, THAT NO LIBEL FOR CONDEMNATION SHALL BE
INSTITUTED UNDER THIS ACT, FOR ANY ALLEGED MISBRANDING IF THERE IS
PENDING IN ANY COURT A LIBEL FOR CONDEMNATION PROCEEDING UNDER THIS ACT
BASED UPON THE SAME ALLEGED MISBRANDING, AND NOT MORE THAN ONE SUCH
PROCEEDING SHALL BE INSTITUTED IF NO SUCH PROCEEDING IS SO PENDING,
EXCEPT THAT SUCH LIMITATION SHALL NOT APPLY (1) WHEN SUCH MISBRANDING
HAS BEEN THE BASIS OF A PRIOR JUDGMENT IN FAVOR OF THE UNITED STATES,
IN A CRIMINAL, INJUNCTION, OR LIBEL FOR CONDEMNATION PROCEEDING UNDER
THIS ACT, OR (2) WHEN THE ADMINISTRATOR HAS PROBABLE CAUSE TO BELIEVE
FROM FACTS FOUND, WITHOUT HEARING, BY HIM OR ANY OFFICER OR EMPLOYEE OF
THE AGENCY THAT THE MISBRANDED ARTICLE IS DANGEROUS TO HEALTH, OR THAT
THE LABELING OF THE MISBRANDED ARTICLE IS FRAUDULENT, OR WOULD BE IN A
MATERIAL RESPECT MISLEADING TO THE INJURY OR DAMAGE OF THE PURCHASER OR
CONSUMER." 

FN4  THE BOOKLET, HOW TO GET WELL AND STAY WELL, IS USED BY SALESMEN
IN SOLICITING PROSPECTIVE CUSTOMERS.  A VERSION OF THE BOOKLET IN USE
IN 1947 REPRESENTED THAT NUTRILITE HAD "CURED OR GREATLY HELPED" SUCH
"COMMON AILMENTS" AS "LOW BLOOD PRESSURE, ULCERS, MENTAL DEPRESSION,
PYORRHEA, MUSCULAR TWITCHING, RICKETS, WORRY OVER SMALL THINGS,
TONSILITIS, HAY FEVER, SENSITIVENESS TO NOISE, UNDERWEIGHT, EASILY
TIRED, GAS IN STOMACH, CUTS HEAL SLOWLY, FAULTY VISION, HEADACHE,
CONSTIPATION, ANEMIA, BOILS, FLABBY TISSUES, HYSTERICAL TENDENCY,
ECZEMA, OVERWEIGHT, FAULTY MEMORY, LACK OF AMBITION, CERTAIN BONE
CONDITIONS, NERVOUSNESS, NOSEBLEED, INSOMNIA (SLEEPLESSNESS),
ALLERGIES, ASTHMA, RESTLESSNESS, BAD SKIN COLOR, POOR APPETITE,
BILIOUSNESS, NEURITIS, NIGHT BLINDNESS, MIGRAINE, HIGH BLOOD PRESSURE,
SINUS TROUBLE, LACK OF CONCENTRATION, DENTAL CARIES, IRREGULAR
HEARTBEAT, COLITIS, CRAVING FOR SOUR FOODS, ARTHRITIS (RHEUMATISM),
NEURALGIA, DEAFNESS, SUBJECT TO COLDS."  THIS VERSION IS THE BASIS FOR
AN INDICTMENT NOW PENDING IN THE SOUTHERN DISTRICT OF CALIFORNIA
CHARGING LEE S. MYTINGER AND WILLIAM S. CASSELBERRY WITH THE
MISBRANDING OF NUTRILITE IN VIOLATION OF THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT. 

AFTER A HEARING PRIOR TO THE INDICTMENT, APPELLEE REVISED THE
BOOKLET.  DIRECT CURATIVE CLAIMS WERE ELIMINATED.  BUT PAGES 41-52 OF
THE REVISED BOOKLET WERE DEVOTED TO CASE HISTORIES EXPLAINING THAT
NUTRILITE BROUGHT RELIEF FROM SUCH AILMENTS AS DIABETES,
FEEBLEMINDEDNESS, STOMACH PAINS, SNEEZING AND WEEPING.  APPELLANT
CRAWFORD, ASSOCIATE COMMISSIONER OF FOOD AND DRUGS, CONCLUDED THAT
THERE WAS PROBABLE CAUSE TO BELIEVE AND THAT HE DID BELIEVE THAT THIS
VERSION OF THE BOOKLET WAS MISLEADING.  ON SEPTEMBER 28 AND 30, 1948,
HE RECOMMENDED SEIZURES OF NUTRILITE SHIPMENTS.    APPELLEE THEREAFTER
ORDERED ITS SALESMEN TO REMOVE PAGES 37-58 WHICH CONTAINED THE CASE
HISTORIES.  THE PAGES WHICH REMAINED POINTED TO THE DANGERS AND
PREVALENCE OF ILLNESS, DESCRIBED THE DISCOVERY OF NUTRILITE, AND
RECOMMENDED THE BOOKLET TO THOSE WHO WANTED TO GET WELL AND STAY WELL. 
ON DECEMBER 2, 1948, APPELLANT LARRICK, ASSISTANT COMMISSIONER OF FOODS
AND DRUGS, MADE A PROBABLE CAUSE DETERMINATION ON THESE PAGES OF THE
BOOKLET AND RECOMMENDED SEIZURE. 

SIX NEW PAGES WERE THEREAFTER ADDED TO THE BOOKLET.  ON DECEMBER 9,
1948, APPELLANT DUNBAR, COMMISSIONER OF FOODS AND DRUGS, MADE A
PROBABLE CAUSE DETERMINATION ON THAT VERSION OF THE BOOKLET AND
RECOMMENDED FURTHER SEIZURES. 

FN5  SEC. 304(B) PROVIDES IN PART: 

"THE ARTICLE SHALL BE LIABLE TO SEIZURE BY PROCESS PURSUANT TO THE
LIBEL, AND THE PROCEDURE IN CASES UNDER THIS SECTION SHALL CONFORM, AS
NEARLY AS MAY BE, TO THE PROCEDURE IN ADMIRALTY; EXCEPT THAT ON DEMAND
OF EITHER PARTY ANY ISSUE OF FACT JOINED IN ANY SUCH CASE SHALL BE
TRIED BY JURY." 

FN6  REVIEW OF AN ORDER OF THE ADMINISTRATOR REFUSING TO PERMIT AN
APPLICATION FOR A NEW DRUG TO BECOME EFFECTIVE OR SUSPENDING THE
EFFECTIVENESS OF AN APPLICATION IS AUTHORIZED IN SEC. 505(H), 21 U.S.C.
SEC. 355(H).  ORDERS OF THE ADMINISTRATOR IN CONNECTION WITH ISSUING,
AMENDING, OR REPEALING REGULATIONS UNDER SECS. 401, 403(J), 404(A),
406(A) AND (B), 501(B), 502(D), 502(H), 504, 604 ARE EXPRESSLY MADE
REVIEWABLE BY SEC. 701(E) AND (F), 21 U.S.C. SEC. 371(E) AND (F). 

FN7  SEE SEC. 304(A) NOTE 3, SUPRA. 

FN8  SEC. 304(B) PROVIDES IN PART: 

"WHEN LIBEL FOR CONDEMNATION PROCEEDINGS UNDER THIS SECTION,
INVOLVING THE SAME CLAIMANT AND THE SAME ISSUES OF ADULTERATION OR
MISBRANDING, ARE PENDING IN TWO OR MORE JURISDICTIONS, SUCH PENDING
PROCEEDINGS, UPON APPLICATION OF THE CLAIMANT SEASONABLY MADE TO THE
COURT OF ONE SUCH JURISDICTION, SHALL BE CONSOLIDATED FOR TRIAL BY
ORDER OF SUCH COURT, AND TRIED IN (1) ANY DISTRICT SELECTED BY THE
CLAIMANT WHERE ONE OF SUCH PROCEEDINGS IS PENDING; OR (2) A DISTRICT
AGREED UPON BY STIPULATION BETWEEN THE PARTIES.  IF NO ORDER FOR
CONSOLIDATION IS SO MADE WITHIN A REASONABLE TIME, THE CLAIMANT MAY
APPLY TO THE COURT OF ONE SUCH JURISDICTION, AND SUCH COURT (AFTER
GIVING THE UNITED STATES ATTORNEY FOR SUCH DISTRICT REASONABLE NOTICE
AND OPPORTUNITY TO BE HEARD) SHALL BY ORDER, UNLESS GOOD CAUSE TO THE
CONTRARY IS SHOWN, SPECIFY A DISTRICT OF REASONABLE PROXIMITY TO THE
CLAIMANT'S PRINCIPAL PLACE OF BUSINESS, IN WHICH ALL SUCH PENDING
PROCEEDINGS SHALL BE CONSOLIDATED FOR TRIAL AND TRIED.  SUCH ORDER OF
CONSOLIDATION SHALL NOT APPLY SO AS TO REQUIRE THE REMOVAL OF ANY CASE
THE DATE FOR TRIAL OF WHICH HAS BEEN FIXED.  THE COURT GRANTING SUCH
ORDER SHALL GIVE PROMPT NOTIFICATION THEREOF TO THE OTHER COURTS HAVING
JURISDICTION OF THE CASES COVERED THEREBY." 

FN9  CONGRESS HAS GRANTED DISTRIBUTORS THROUGH THE PROVISION FOR
CONSOLIDATION OF ALL LIBEL SUITS THE MEASURE OF RELIEF WHICH COURTS AT
TIMES GRANT THROUGH A STAY OF MULTIPLE ACTIONS.  SEE LANDIS V. NORTH
AMERICAN CO., 299 U.S. 248. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

WHILE I AGREE WITH THE COURT AS TO THE CONSTITUTIONAL AND STATUTORY
ISSUES CANVASSED IN ITS OPINION, I AM UNABLE TO ANSWER MR. JUSTICE
JACKSON'S DISSENT, AND I MUST THEREFORE YIELD TO IT. 

OF COURSE CONGRESS MAY CONSTITUTIONALLY VEST JUDICIALLY UNREVIEWABLE
DISCRETION IN AN EXECUTIVE AGENCY TO INITIATE MULTIPLE SUITS IN ORDER
TO STOP TRAFFICKING IN PERNICIOUS DRUGS OR EVEN IN THOSE THAT ARE
HARMLESS, WHERE EFFICACY IS MISREPRESENTED.  I AGREE THAT IT HAS DONE
SO IN THE FEDERAL FOOD, DRUG, AND COSMETIC ACT OF 1938.  52 STAT. 1040,
21 U.S.C. SEC. 301 ET SEQ. BUT IT DOES NOT AT ALL FOLLOW THAT CONGRESS
HAS THEREBY CUT OFF THE RIGHT OF ACCESS TO THE COURTS TO PROVE THAT THE
ENFORCING AGENCY HAS NOT ACTED WITHIN THE BROADEST BOUNDS OF FAIR
DISCRETION, RARE AS THE OCCASION MAY BE FOR SUCH AN ATTEMPT AND HOWEVER
IMPROBABLE ITS SUCCESS. 

SUCH I UNDERSTAND TO BE THE NATURE OF THE PROCEEDINGS BELOW AND SUCH
THE BASIS OF THE DISTRICT COURT'S DECREE.  UNLESS WE CAN SAY, AS I
CANNOT, THAT THE FINDINGS IN SUPPORT OF IT HAVE NO SUPPORT IN THE
EVIDENCE, WE SHOULD NOT HOLD THAT THE COURT BELOW WAS WITHOUT
JURISDICTION TO ENTERTAIN THE SUIT. 

THE LIMITED CLAIM WHICH THE DISTRICT COURT SUSTAINED FALLS PRECISELY
WITHIN THE QUALIFICATION LEFT OPEN BY THIS COURT IN A LEADING CASE
SUSTAINING THE POWER OF CONGRESS TO VEST UNREVIEWABLE DISCRETION IN
EXECUTIVE AGENCIES.  WHEN THE COURT WAS URGED TO DENY THIS POWER OF
CONGRESS AND "EXTREME CASES" WERE PUT SHOWING "HOW RECKLESS AND
ARBITRARY MIGHT BE THE ACTION OF EXECUTIVE OFFICERS," THE COURT MADE
THIS ANSWER: 

"IT WILL BE TIME ENOUGH TO DEAL WITH SUCH CASES AS AND WHEN THEY
ARISE.  SUFFICE IT TO SAY, THAT THE COURTS HAVE RARELY, IF EVER, FELT
THEMSELVES SO RESTRAINED BY TECHNICAL RULES THAT THEY COULD NOT FIND
SOME REMEDY, CONSISTENT WITH THE LAW, FOR ACTS, WHETHER DONE BY
GOVERNMENT OR BY INDIVIDUAL PERSONS, THAT VIOLATED NATURAL JUSTICE OR
WERE HOSTILE TO THE FUNDAMENTAL PRINCIPLES DEVISED FOR THE PROTECTION
OF THE ESSENTIAL RIGHTS OF PROPERTY."  MONONGAHELA BRIDGE CO. V. UNITED
STATES, 216 U.S. 177, 195. 

MR. JUSTICE HARLAN, SPEAKING FOR THE COURT, CAST ITS THOUGHT IN THE
LANGUAGE CURRENT AT THE TIME.  BUT THE THOUGHT BEHIND THE WORDS IS NOT
OUTMODED AND CONTROLS, I BELIEVE, THE CASE BEFORE US. 

MR. JUSTICE JACKSON, DISSENTING. 

THE COURT DOES NOT DEAL AT ALL WITH WHAT APPEARS TO BE THE ULTIMATE
ISSUE DECIDED BY THE COURT BELOW. 

THE TRIAL COURT OF THREE JUDGES WROTE NO OPINION BUT MADE FORTY-THREE
DETAILED FINDINGS OF FACT WHICH WOULD REQUIRE TWENTY OF THESE PRINTED
PAGES TO REPRODUCE AND WHICH SUMMARIZE A 1,500-PAGE RECORD OF A LONG
TRIAL.  THOSE FINDINGS ARE MADE LARGELY ON UNDISPUTED EVIDENCE AND ON
EVIDENCE FROM GOVERNMENT SOURCES.  THIS COURT DOES NOT CRITICIZE OR
REVERSE ANY OF THEM. 

THE SUBSTANCE OF THESE IS TO FIND THAT THE GOVERNMENT INSTITUTED A
MULTIPLICITY OF COURT ACTIONS, WITH SEIZURES IN WIDELY SEPARATED PARTS
OF THE COUNTRY, WITH A PURPOSE TO HARASS APPELLEE AND ITS DEALERS AND
INTENDING THAT THESE ACTIONS AND THE ATTENDANT PUBLICITY WOULD INJURE
APPELLEE'S BUSINESS BEFORE ANY OF THE ISSUES IN SUCH CASES COULD BE
TRIED.  THIS, THE COURT HELD, WAS JUSTIFIED BY NO EMERGENCY, THE
PRODUCT BEING, AT WORST, HARMLESS AND HAVING BEEN MARKETED FOR YEARS
WITH KNOWLEDGE OF THE DEPARTMENT. 

ASSUMING AS I DO THAT THE ACT ON ITS FACE IS NOT CONSTITUTIONALLY
DEFECTIVE, THE QUESTION REMAINS WHETHER IT HAS BEEN SO MISUSED BY
REFUSAL OF ADMINISTRATIVE HEARING, TOGETHER WITH SUCH IRREPARABLE
INJURY IN ANTICIPATION OF JUDICIAL HEARING, AS TO DENY APPELLEE DUE
PROCESS OF LAW OR TO AMOUNT TO AN ABUSE OF PROCESS OF THE COURTS. 

THE GOVERNMENT HAS SOUGHT AND RECEIVED FROM THIS COURT PROTECTION
AGAINST A MULTIPLICITY OF SUITS UNDER CIRCUMSTANCES WHERE INJURY WAS
LESS APPARENT THAN IN THIS.  LANDIS V. NORTH AMERICAN CO., 299 U.S.
248.  THE HOLDING OF THE COURT BELOW AND THE CONTENTION OF THE APPELLEE
HERE THAT THE GOVERNMENT IS NOT ENTITLED TO SO APPLY THE STATUTE AS TO
BRING MULTIPLE ACTIONS DESIGNED TO DESTROY A BUSINESS BEFORE IT CAN BE
HEARD IN ITS OWN DEFENSE IS NOT FRIVOLOUS, TO SAY THE LEAST. 

I AM CONSTRAINED TO WITHHOLD ASSENT TO A DECISION THAT PASSES IN
SILENCE WHAT I THINK PRESENTS A SERIOUS ISSUE. 
..END :























GRAVER MFG. CO. V. LINDE CO., 339 U.S. 605 


NO. 2.  ARGUED MARCH 30, 1950.  - DECIDED MAY 29, 1950. 


1.  THIS COURT AFFIRMS THE FINDING OF THE TWO COURTS BELOW THAT, UNDER
THE DOCTRINE OF EQUIVALENTS, CERTAIN FLUX CLAIMS OF JONES PATENT NO.
2,043,960, FOR AN ELECTRIC WELDING PROCESS AND FOR FLUXES, OR
COMPOSITIONS, TO BE USED THEREWITH WERE INFRINGED.  PP. 606-612. 

2.  THE ESSENCE OF THE DOCTRINE OF EQUIVALENTS IS THAT ONE MAY NOT
PRACTICE A FRAUD ON A PATENT.  P. 608. 

3.  THE DOCTRINE OF EQUIVALENTS IS FOUNDED ON THE THEORY THAT, IF TWO
DEVICES DO THE SAME WORK IN SUBSTANTIALLY THE SAME WAY AND ACCOMPLISH
SUBSTANTIALLY THE SAME RESULT, THEY ARE THE SAME, EVEN THOUGH THEY
DIFFER IN NAME, FORM OR SHAPE.  PP. 608-609. 

4.  IN DETERMINING EQUIVALENTS, CONSIDERATION MUST BE GIVEN TO THE
PURPOSE FOR WHICH AN INGREDIENT IS USED IN A PATENT, THE QUALITIES IT
HAS WHEN COMBINED WITH OTHER INGREDIENTS, THE FUNCTIONS WHICH IT IS
INTENDED TO PERFORM, AND WHETHER PERSONS REASONABLY SKILLED IN THE ART
WOULD HAVE KNOWN OF THE INTERCHANGEABILITY OF AN INGREDIENT NOT
CONTAINED IN THE PATENT WITH ONE THAT WAS.  P. 609. 

5.  A FINDING OF EQUIVALENCE IS A DETERMINATION OF FACT TO BE MADE BY
THE TRIAL COURT; AND THE TRIAL COURT'S DECISION SHOULD NOT BE DISTURBED
UNLESS CLEARLY ERRONEOUS.  PP. 609-610. 

6.  ON THE RECORD IN THIS CASE, INVOLVING A CLAIM OF A COMBINATION OF
ALKALINE EARTH METAL SILICATE AND CALCIUM FLUORIDE, THE TRIAL COURT WAS
JUSTIFIED IN FINDING THAT THE SUBSTITUTION IN THE ACCUSED COMPOSITION
OF MANGANESE SILICATE (WHICH IS NOT AN ALKALINE EARTH METAL SILICATE)
FOR MAGNESIUM SILICATE (WHICH IS AN ALKALINE EARTH METAL SILICATE),
WHERE THE TWO COMPOSITIONS WERE SUBSTANTIALLY IDENTICAL IN OPERATION
AND RESULT, WAS SO INSUBSTANTIAL, IN VIEW OF THE TECHNOLOGY AND THE
PRIOR ART, THAT THE PATENT WAS INFRINGED UNDER THE DOCTRINE OF
EQUIVALENTS.  PP. 610-612. 

GRAVER TANK & MFG. CO., INC. ET AL. V. LINDE AIR PRODUCTS CO. 

ON REHEARING. 

THE HISTORY OF THE CASE IS SUMMARIZED IN THE FIRST PARAGRAPH OF THE
OPINION.  ON THE ASPECT OF THE CASE INVOLVED IN THE REHEARING, THE
PRIOR DECISION OF THIS COURT IS ADHERED TO, P. 612. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

LINDE AIR PRODUCTS CO., OWNER OF THE JONES PATENT FOR AN ELECTRIC
WELDING PROCESS AND FOR FLUXES TO BE USED THEREWITH, BROUGHT AN ACTION
FOR INFRINGEMENT AGAINST LINCOLN AND THE TWO GRAVER COMPANIES.  THE
TRIAL COURT HELD FOUR FLUX CLAIMS VALID AND INFRINGED AND CERTAIN OTHER
FLUX CLAIMS AND ALL PROCESS CLAIMS INVALID.  75 U.S.P.Q. 231.  THE
COURT OF APPEALS AFFIRMED FINDINGS OF VALIDITY AND INFRINGEMENT AS TO
THE FOUR FLUX CLAIMS BUT REVERSED THE TRIAL COURT AND HELD VALID THE
PROCESS CLAIMS AND THE REMAINING CONTESTED FLUX CLAIMS.  167 F.2D 531. 
WE GRANTED CERTIORARI, 335 U.S. 810, AND REVERSED THE JUDGMENT OF THE
COURT OF APPEALS INSOFAR AS IT REVERSED THAT OF THE TRIAL COURT, AND
REINSTATED THE DISTRICT COURT DECREE.  336 U.S. 271.  REHEARING WAS
GRANTED, LIMITED TO THE QUESTION OF INFRINGEMENT OF THE FOUR VALID FLUX
CLAIMS AND TO THE APPLICABILITY OF THE DOCTRINE OF EQUIVALENTS TO
FINDINGS OF FACT IN THIS CASE.  337 U.S. 910. 

AT THE OUTSET IT SHOULD BE NOTED THAT THE SINGLE ISSUE BEFORE US IS
WHETHER THE TRIAL COURT'S HOLDING THAT THE FOUR FLUX CLAIMS HAVE BEEN
INFRINGED WILL BE SUSTAINED.  ANY ISSUE AS TO THE VALIDITY OF THESE
CLAIMS WAS UNANIMOUSLY DETERMINED BY THE PREVIOUS DECISION IN THIS
COURT AND ATTACK ON THEIR VALIDITY CANNOT BE RENEWED NOW BY REASON OF
LIMITATION ON GRANT OF REHEARING.  THE DISCLOSURE, THE CLAIMS, AND THE
PRIOR ART HAVE BEEN ADEQUATELY DESCRIBED IN OUR FORMER OPINION AND IN
THE OPINIONS OF THE COURTS BELOW. 

IN DETERMINING WHETHER AN ACCUSED DEVICE OR COMPOSITION INFRINGES A
VALID PATENT, RESORT MUST BE HAD IN THE FIRST INSTANCE TO THE WORDS OF
THE CLAIM.  IF ACCUSED MATTER FALLS CLEARLY WITHIN THE CLAIM,
INFRINGEMENT IS MADE OUT AND THAT IS THE END OF IT. 

BUT COURTS HAVE ALSO RECOGNIZED THAT TO PERMIT IMITATION OF A
PATENTED INVENTION WHICH DOES NOT COPY EVERY LITERAL DETAIL WOULD BE TO
CONVERT THE PROTECTION OF THE PATENT GRANT INTO A HOLLOW AND USELESS
THING.  SUCH A LIMITATION WOULD LEAVE ROOM FOR - INDEED ENCOURAGE - THE
UNSCRUPULOUS COPYIST TO MAKE UNIMPORTANT AND INSUBSTANTIAL CHANGES AND
SUBSTITUTIONS IN THE PATENT WHICH, THOUGH ADDING NOTHING, WOULD BE
ENOUGH TO TAKE THE COPIED MATTER OUTSIDE THE CLAIM, AND HENCE OUTSIDE
THE REACH OF LAW.  ONE WHO SEEKS TO PIRATE AN INVENTION, LIKE ONE WHO
SEEKS TO PIRATE A COPYRIGHTED BOOK OR PLAY, MAY BE EXPECTED TO
INTRODUCE MINOR VARIATIONS TO CONCEAL AND SHELTER THE PIRACY.  OUTRIGHT
AND FORTHRIGHT DUPLICATION IS A DULL AND VERY RARE TYPE OF
INFRINGEMENT.  TO PROHIBIT NO OTHER WOULD PLACE THE INVENTOR AT THE
MERCY OF VERBALISM AND WOULD BE SUBORDINATING SUBSTANCE TO FORM.  IT
WOULD DEPRIVE HIM OF THE BENEFIT OF HIS INVENTION AND WOULD FOSTER
CONCEALMENT RATHER THAN DISCLOSURE OF INVENTIONS, WHICH IS ONE OF THE
PRIMARY PURPOSES OF THE PATENT SYSTEM. 

THE DOCTRINE OF EQUIVALENTS EVOLVED IN RESPONSE TO THIS EXPERIENCE. 
THE ESSENCE OF THE DOCTRINE IS THAT ONE MAY NOT PRACTICE A FRAUD ON A
PATENT.  ORIGINATING ALMOST A CENTURY AGO IN THE CASE OF WINANS V.
DENMEAD, 15 HOW.  330, IT HAS BEEN CONSISTENTLY APPLIED BY THIS COURT
AND THE LOWER FEDERAL COURTS, AND CONTINUES TODAY READY AND AVAILABLE
FOR UTILIZATION WHEN THE PROPER CIRCUMSTANCES FOR ITS APPLICATION
ARISE.  "TO TEMPER UNSPARING LOGIC AND PREVENT AN INFRINGER FROM
STEALING THE BENEFIT OF AN INVENTION"  FN1  A PATENTEE MAY INVOKE THIS
DOCTRINE TO PROCEED AGAINST THE PRODUCER OF A DEVICE "IF IT PERFORMS
SUBSTANTIALLY THE SAME FUNCTION IN SUBSTANTIALLY THE SAME WAY TO OBTAIN
THE SAME RESULT."  SANITARY REFRIGERATOR CO. V. WINTERS, 280 U.S. 30,
42.  THE THEORY ON WHICH IT IS FOUNDED IS THAT "IF TWO DEVICES DO THE
SAME WORK IN SUBSTANTIALLY THE SAME WAY, AND ACCOMPLISH SUBSTANTIALLY
THE SAME RESULT, THEY ARE THE SAME, EVEN THOUGH THEY DIFFER IN NAME,
FORM, OR SHAPE."  MACHINE CO. V. MURPHY, 97 U.S. 120, 125.  THE
DOCTRINE OPERATES NOT ONLY IN FAVOR OF THE PATENTEE OF A PIONEER OR
PRIMARY INVENTION, BUT ALSO FOR THE PATENTEE OF A SECONDARY INVENTION
CONSISTING OF A COMBINATION OF OLD INGREDIENTS WHICH PRODUCE NEW AND
USEFUL RESULTS, IMHAEUSER V. BUERK, 101 U.S. 647, 655, ALTHOUGH THE
AREA OF EQUIVALENCE MAY VARY UNDER THE CIRCUMSTANCES.  SEE CONTINENTAL
PAPER BAG CO. V. EASTERN PAPER BAG CO., 210 U.S. 405, 414-415, AND
CASES CITED; SEYMOUR V. OSBORNE, 11 WALL.  516, 556; GOULD V. REES, 15
WALL.  187, 192.  THE WHOLESOME REALISM OF THIS DOCTRINE IS NOT ALWAYS
APPLIED IN FAVOR OF A PATENTEE BUT IS SOMETIMES USED AGAINST HIM. 
THUS, WHERE A DEVICE IS SO FAR CHANGED IN PRINCIPLE FROM A PATENTED
ARTICLE THAT IT PERFORMS THE SAME OR A SIMILAR FUNCTION IN A
SUBSTANTIALLY DIFFERENT WAY, BUT NEVERTHELESS FALLS WITHIN THE LITERAL
WORDS OF THE CLAIM, THE DOCTRINE OF EQUIVALENTS MAY BE USED TO RESTRICT
THE CLAIM AND DEFEAT THE PATENTEE'S ACTION FOR INFRINGEMENT. 
WESTINGHOUSE V. BOYDEN POWER BRAKE CO., 170 U.S. 537, 568.  IN ITS
EARLY DEVELOPMENT, THE DOCTRINE WAS USUALLY APPLIED IN CASES INVOLVING
DEVICES WHERE THERE WAS EQUIVALENCE IN MECHANICAL COMPONENTS. 
SUBSEQUENTLY, HOWEVER, THE SAME PRINCIPLES WERE ALSO APPLIED TO
COMPOSITIONS, WHERE THERE WAS EQUIVALENCE BETWEEN CHEMICAL
INGREDIENTS.  TODAY THE DOCTRINE IS APPLIED TO MECHANICAL OR CHEMICAL
EQUIVALENTS IN COMPOSITIONS OR DEVICES.  SEE DISCUSSIONS AND CASES
COLLECTED IN 3 WALKER ON PATENTS (DELLER'S ED. 1937) SECS. 489-492;
ELLIS, PATENT CLAIMS (1949) SECS. 59-60. 

WHAT CONSTITUTES EQUIVALENCY MUST BE DETERMINED AGAINST THE CONTEXT
OF THE PATENT, THE PRIOR ART, AND THE PARTICULAR CIRCUMSTANCES OF THE
CASE.  EQUIVALENCE, IN THE PATENT LAW, IS NOT THE PRISONER OF A FORMULA
AND IS NOT AN ABSOLUTE TO BE CONSIDERED IN A VACUUM.  IT DOES NOT
REQUIRE COMPLETE IDENTITY FOR EVERY PURPOSE AND IN EVERY RESPECT.  IN
DETERMINING EQUIVALENTS, THINGS EQUAL TO THE SAME THING MAY NOT BE
EQUAL TO EACH OTHER AND, BY THE SAME TOKEN, THINGS FOR MOST PURPOSES
DIFFERENT MAY SOMETIMES BE EQUIVALENTS.  CONSIDERATION MUST BE GIVEN TO
THE PURPOSE FOR WHICH AN INGREDIENT IS USED IN A PATENT, THE QUALITIES
IT HAS WHEN COMBINED WITH THE OTHER INGREDIENTS, AND THE FUNCTION WHICH
IT IS INTENDED TO PERFORM.  AN IMPORTANT FACTOR IS WHETHER PERSONS
REASONABLY SKILLED IN THE ART WOULD HAVE KNOWN OF THE
INTERCHANGEABILITY OF AN INGREDIENT NOT CONTAINED IN THE PATENT WITH
ONE THAT WAS. 

A FINDING OF EQUIVALENCE IS A DETERMINATION OF FACT.  PROOF CAN BE
MADE IN ANY FORM:  THROUGH TESTIMONY OF EXPERTS OR OTHERS VERSED IN THE
TECHNOLOGY; BY DOCUMENTS, INCLUDING TEXTS AND TREATISES; AND, OF
COURSE, BY THE DISCLOSURES OF THE PRIOR ART. LIKE ANY OTHER ISSUE OF
FACT, FINAL DETERMINATION REQUIRES A BALANCING OF CREDIBILITY,
PERSUASIVENESS AND WEIGHT OF EVIDENCE.  IT IS TO BE DECIDED BY THE
TRIAL COURT AND THAT COURT'S DECISION, UNDER GENERAL PRINCIPLES OF
APPELLATE REVIEW, SHOULD NOT BE DISTURBED UNLESS CLEARLY ERRONEOUS. 
PARTICULARLY IS THIS SO IN A FIELD WHERE SO MUCH DEPENDS UPON
FAMILIARITY WITH SPECIFIC SCIENTIFIC PROBLEMS AND PRINCIPLES NOT
USUALLY CONTAINED IN THE GENERAL STOREHOUSE OF KNOWLEDGE AND
EXPERIENCE. 

IN THE CASE BEFORE US, WE HAVE TWO ELECTRIC WELDING COMPOSITIONS OR
FLUXES:  THE PATENTED COMPOSITION, UNIONMELT GRADE 20, AND THE ACCUSED
COMPOSITION, LINCOLNWELD 660.  THE PATENT UNDER WHICH UNIONMELT IS MADE
CLAIMS ESSENTIALLY A COMBINATION OF ALKALINE EARTH METAL SILICATE AND
CALCIUM FLUORIDE; UNIONMELT ACTUALLY CONTAINS, HOWEVER, SILICATES OF
CALCIUM AND MAGNESIUM, TWO ALKALINE EARTH METAL SILICATES. 
LINCOLNWELD'S COMPOSITION IS SIMILAR TO UNIONMELT'S, EXCEPT THAT IT
SUBSTITUTES SILICATES OF CALCIUM AND MANGANESE - THE LATTER NOT AN
ALKALINE EARTH METAL - FOR SILICATES OF CALCIUM AND MAGNESIUM.  IN ALL
OTHER RESPECTS, THE TWO COMPOSITIONS ARE ALIKE.  THE MECHANICAL METHODS
IN WHICH THESE COMPOSITIONS ARE EMPLOYED ARE SIMILAR.  THEY ARE
IDENTICAL IN OPERATION AND PRODUCE THE SAME KIND AND QUALITY OF WELD. 

THE QUESTION WHICH THUS EMERGES IS WHETHER THE SUBSTITUTION OF THE
MANGANESE WHICH IS NOT AN ALKALINE EARTH METAL FOR THE MAGNESIUM WHICH
IS, UNDER THE CIRCUMSTANCES OF THIS CASE, AND IN VIEW OF THE TECHNOLOGY
AND THE PRIOR ART, IS A CHANGE OF SUCH SUBSTANCE AS TO MAKE THE
DOCTRINE OF EQUIVALENTS INAPPLICABLE; OR CONVERSELY, WHETHER UNDER THE
CIRCUMSTANCES THE CHANGE WAS SO INSUBSTANTIAL THAT THE TRIAL COURT'S
INVOCATION OF THE DOCTRINE OF EQUIVALENTS WAS JUSTIFIED. 

WITHOUT ATTEMPTING TO BE ALL-INCLUSIVE, WE NOTE THE FOLLOWING
EVIDENCE IN THE RECORD:  CHEMISTS FAMILIAR WITH THE TWO FLUXES
TESTIFIED THAT MANGANESE AND MAGNESIUM WERE SIMILAR IN MANY OF THEIR
REACTIONS (R. 287, 669).  THERE IS TESTIMONY BY A METALLURGIST THAT
ALKALINE EARTH METALS ARE OFTEN FOUND IN MANGANESE ORES IN THEIR
NATURAL STATE AND THAT THEY SERVE THE SAME PURPOSE IN THE FLUXES (R.
831-832); AND A CHEMIST TESTIFIED THAT "IN THE SENSE OF THE PATENT"
MANGANESE COULD BE INCLUDED AS AN ALKALINE EARTH METAL (R. 297).  MUCH
OF THIS TESTIMONY WAS CORROBORATED BY REFERENCE TO RECOGNIZED TEXTS ON
INORGANIC CHEMISTRY (R. 332).  PARTICULARLY IMPORTANT, IN ADDITION,
WERE THE DISCLOSURES OF THE PRIOR ART, ALSO CONTAINED IN THE RECORD. 
THE MILLER PATENT, NO. 1,754,566 WHICH PRECEDED THE PATENT IN SUIT,
TAUGHT THE USE OF MANGANESE SILICATE IN WELDING FLUXES (R. 969, 971). 
MANGANESE WAS SIMILARLY DISCLOSED IN THE ARMOR PATENT, NO. 1,467,825,
WHICH ALSO DESCRIBED A WELDING COMPOSITION (R. 1346).  AND THE RECORD
CONTAINS NO EVIDENCE OF ANY KIND TO SHOW THAT LINCOLNWELD WAS DEVELOPED
AS THE RESULT OF INDEPENDENT RESEARCH OR EXPERIMENTS. 

IT IS NOT FOR THIS COURT TO EVEN ESSAY AN INDEPENDENT EVALUATION OF
THIS EVIDENCE.  THIS IS THE FUNCTION OF THE TRIAL COURT.  AND, AS WE
HAVE HERETOFORE OBSERVED, "TO NO TYPE OF CASE IS THIS ...  MORE
APPROPRIATELY APPLICABLE THAN TO THE ONE BEFORE US, WHERE THE EVIDENCE
IS LARGELY THE TESTIMONY OF EXPERTS AS TO WHICH A TRIAL COURT MAY BE
ENLIGHTENED BY SCIENTIFIC DEMONSTRATIONS.  THIS TRIAL OCCUPIED SOME
THREE WEEKS, DURING WHICH, AS THE RECORD SHOWS, THE TRIAL JUDGE VISITED
LABORATORIES WITH COUNSEL AND EXPERTS TO OBSERVE ACTUAL DEMONSTRATIONS
OF WELDING AS TAUGHT BY THE PATENT AND OF THE WELDING ACCUSED OF
INFRINGING IT, AND OF VARIOUS STAGES OF THE PRIOR ART. HE VIEWED MOTION
PICTURES OF VARIOUS WELDING OPERATIONS AND TESTS AND HEARD MANY EXPERTS
AND OTHER WITNESSES."  336 U.S. 271, 274-275. 

THE TRIAL JUDGE FOUND ON THE EVIDENCE BEFORE HIM THAT THE LINCOLNWELD
FLUX AND THE COMPOSITION OF THE PATENT IN SUIT ARE SUBSTANTIALLY
IDENTICAL IN OPERATION AND IN RESULT.  HE FOUND ALSO THAT LINCOLNWELD
IS IN ALL RESPECTS EQUIVALENT TO UNIONMELT FOR WELDING PURPOSES.  AND
HE CONCLUDED THAT "FOR ALL PRACTICAL PURPOSES, MANGANESE SILICATE CAN
BE EFFICIENTLY AND EFFECTUALLY SUBSTITUTED FOR CALCIUM AND MAGNESIUM
SILICATES AS THE MAJOR CONSTITUENT OF THE WELDING COMPOSITION."  THESE
CONCLUSIONS ARE ADEQUATELY SUPPORTED BY THE RECORD; CERTAINLY THEY ARE
NOT CLEARLY ERRONEOUS.  FN2 

IT IS DIFFICULT TO CONCEIVE OF A CASE MORE APPROPRIATE FOR
APPLICATION OF THE DOCTRINE OF EQUIVALENTS.  THE DISCLOSURES OF THE
PRIOR ART MADE CLEAR THAT MANGANESE SILICATE WAS A USEFUL INGREDIENT IN
WELDING COMPOSITIONS.  SPECIALISTS FAMILIAR WITH THE PROBLEMS OF
WELDING COMPOSITIONS UNDERSTOOD THAT MANGANESE WAS EQUIVALENT TO AND
COULD BE SUBSTITUTED FOR MAGNESIUM IN THE COMPOSITION OF THE PATENTED
FLUX AND THEIR OBSERVATIONS WERE CONFIRMED BY THE LITERATURE OF
CHEMISTRY.  WITHOUT SOME EXPLANATION OR INDICATION THAT LINCOLNWELD WAS
DEVELOPED BY INDEPENDENT RESEARCH, THE TRIAL COURT COULD PROPERLY INFER
THAT THE ACCUSED FLUX IS THE RESULT OF IMITATION RATHER THAN
EXPERIMENTATION OR INVENTION.  THOUGH INFRINGEMENT WAS NOT LITERAL, THE
CHANGES WHICH AVOID LITERAL INFRINGEMENT ARE COLORABLE ONLY.  WE
CONCLUDE THAT THE TRIAL COURT'S JUDGMENT OF INFRINGEMENT RESPECTING THE
FOUR FLUX CLAIMS WAS PROPER, AND WE ADHERE TO OUR PRIOR DECISION ON
THIS ASPECT OF THE CASE.  AFFIRMED. 

FN1  L. HAND IN ROYAL TYPEWRITER CO. V. REMINGTON RAND, 168 F.2D 691,
692. 

FN2  RULE 52(A), FEDERAL RULES OF CIVIL PROCEDURE, PROVIDES IN PART:
"FINDINGS OF FACT SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, AND
DUE REGARD SHALL BE GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO
JUDGE OF THE CREDIBILITY OF THE WITNESSES." 

MR. JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS, DISSENTING. 

I HEARTILY AGREE WITH THE COURT THAT "FRAUD" IS BAD, "PIRACY" IS
EVIL, AND "STEALING" IS REPREHENSIBLE.  BUT IN THIS CASE, WHERE
PETITIONERS ARE NOT CHARGED WITH ANY SUCH MALEVOLENCE, THESE LOFTY
PRINCIPLES DO NOT JUSTIFY THE COURT'S STERILIZATION OF ACTS OF CONGRESS
AND PRIOR DECISIONS, NONE OF WHICH ARE EVEN MENTIONED IN TODAY'S
OPINION. 

THE ONLY PATENT CLAIMS INVOLVED HERE DESCRIBE RESPONDENT'S PRODUCT AS
A FLUX "CONTAINING A MAJOR PROPORTION OF ALKALINE EARTH METAL
SILICATE."  THE TRIAL COURT FOUND THAT PETITIONERS USED A FLUX
"COMPOSED PRINCIPALLY OF MANGANESE SILICATE."  FINDING ALSO THAT
"MANGANESE IS NOT AN ALKALINE EARTH METAL," THE TRIAL COURT ADMITTED
THAT PETITIONERS' FLUX DID NOT "LITERALLY INFRINGE" RESPONDENT'S
PATENT.  NEVERTHELESS IT INVOKED THE JUDICIAL "DOCTRINE OF EQUIVALENTS'
TO BROADEN THE CLAIM FOR "ALKALINE EARTH METALS" SO AS TO EMBRACE
"MANGANESE."  ON THE GROUND THAT "THE FACT THAT MANGANESE IS A PROPER
SUBSTITUTE  ...  IS FULLY DISCLOSED IN THE SPECIFICATION" OF
RESPONDENT'S PATENT, IT CONCLUDED THAT "NO DETERMINATION NEED BE MADE
WHETHER IT IS A KNOWN CHEMICAL FACT OUTSIDE THE TEACHINGS OF THE PATENT
THAT MANGANESE IS AN EQUIVALENT  ...  "  SINCE TODAY'S AFFIRMANCE
UNQUESTIONINGLY FOLLOWS THE FINDINGS OF THE TRIAL COURT, THIS COURT
NECESSARILY RELIES ON WHAT THE SPECIFICATIONS REVEALED.  FN1  IN SO
DOING, IT VIOLATES A DIRECT MANDATE OF CONGRESS WITHOUT EVEN DISCUSSING
THAT MANDATE. 

R.S. SEC. 4888, AS AMENDED, 35 U.S.C. SEC. 33, PROVIDES THAT AN
APPLICANT "SHALL PARTICULARLY POINT OUT AND DISTINCTLY CLAIM THE PART,
IMPROVEMENT, OR COMBINATION WHICH HE CLAIMS AS HIS INVENTION OR
DISCOVERY."  WE HAVE HELD IN THIS VERY CASE THAT THIS STATUTE PRECLUDES
INVOKING THE SPECIFICATIONS TO ALTER A CLAIM FREE FROM AMBIGUOUS
LANGUAGE, SINCE "IT IS THE CLAIM WHICH MEASURES THE GRANT TO THE
PATENTEE."  FN2  GRAVER MFG. CO. V. LINDE CO., 336 U.S. 271, 277.  WHAT
IS NOT SPECIFICALLY CLAIMED IS DEDICATED TO THE PUBLIC.  SEE, E.G.,
MILLER V. BRASS CO., 104 U.S. 350, 352.  FOR THE FUNCTION OF CLAIMS
UNDER R.S. SEC. 4888, AS WE HAVE FREQUENTLY REITERATED, IS TO EXCLUDE
FROM THE PATENT MONOPOLY FIELD ALL THAT IS NOT SPECIFICALLY CLAIMED,
WHATEVER MAY APPEAR IN THE SPECIFICATIONS.  SEE, E.G., MARCONI WIRELESS
CO. V. UNITED STATES, 320 U.S. 1, 23, AND CASES THERE CITED.  TODAY THE
COURT TACITLY REJECTS THOSE CASES.  IT DEPARTS FROM THE UNDERLYING
PRINCIPLE WHICH, AS THE COURT POINTED OUT IN WHITE V. DUNBAR, 119 U.S.
47, 51, FORBIDS TREATING A PATENT CLAIM "LIKE A NOSE OF WAX WHICH MAY
BE TURNED AND TWISTED IN ANY DIRECTION, BY MERELY REFERRING TO THE
SPECIFICATION, SO AS TO MAKE IT INCLUDE SOMETHING MORE THAN, OR
SOMETHING DIFFERENT FROM, WHAT ITS WORDS EXPRESS.  ...  THE CLAIM IS A
STATUTORY REQUIREMENT, PRESCRIBED FOR THE VERY PURPOSE OF MAKING THE
PATENTEE DEFINE PRECISELY WHAT HIS INVENTION IS; AND IT IS UNJUST TO
THE PUBLIC, AS WELL AS AN EVASION OF THE LAW, TO CONSTRUE IT IN A
MANNER DIFFERENT FROM THE PLAIN IMPORT OF ITS TERMS."  GIVING THIS
PATENTEE THE BENEFIT OF A GRANT THAT IT DID NOT PRECISELY CLAIM IS NO
LESS "UNJUST TO THE PUBLIC" AND NO LESS AN EVASION OF R.S. SEC. 4888
MERELY BECAUSE DONE IN THE NAME OF THE "DOCTRINE OF EQUIVALENTS." 

IN SEEKING TO JUSTIFY ITS EMASCULATION OF R.S. SEC. 4888 BY PARADING
POTENTIAL HARDSHIPS WHICH LITERAL ENFORCEMENT MIGHT CONCEIVABLY IMPOSE
ON PATENTEES WHO HAD FOR SOME REASON FAILED TO CLAIM COMPLETE
PROTECTION FOR THEIR DISCOVERIES, THE COURT FAILS EVEN TO MENTION THE
PROGRAM FOR ALLEVIATION OF SUCH HARDSHIPS WHICH CONGRESS ITSELF HAS
PROVIDED.  35 U.S.C. SEC. 64 AUTHORIZES REISSUE OF PATENTS WHERE A
PATENT IS "WHOLLY OR PARTLY INOPERATIVE" DUE TO CERTAIN ERRORS ARISING
FROM "INADVERTENCE, ACCIDENT, OR MISTAKE" OF THE PATENTEE.  AND WHILE
THE SECTION DOES NOT EXPRESSLY PERMIT A PATENTEE TO EXPAND HIS CLAIM,
THIS COURT HAS RELUCTANTLY INTERPRETED IT TO JUSTIFY DOING SO.  MILLER
V. BRASS CO., 104 U.S. 350, 353-354.  THAT INTERPRETATION, HOWEVER, WAS
ACCOMPANIED BY A WARNING THAT "REISSUES FOR THE ENLARGEMENT OF CLAIMS
SHOULD BE THE EXCEPTION AND NOT THE RULE."  ID. AT 355.  AND CONGRESS
WAS CAREFUL TO HEDGE THE PRIVILEGE OF REISSUE BY EXACTING CONDITIONS. 
IT ALSO ENTRUSTED THE PATENT OFFICE, NOT THE COURTS, WITH INITIAL
AUTHORITY TO DETERMINE WHETHER EXPANSION OF A CLAIM WAS JUSTIFIED,  FN3
AND BARRED SUITS FOR RETROACTIVE INFRINGEMENT BASED ON SUCH
EXPANSION.  LIKE THE COURT'S OPINION, THIS CONGRESSIONAL PLAN
ADEQUATELY PROTECTS PATENTEES FROM "FRAUD," "PIRACY," AND "STEALING." 
UNLIKE THE COURT'S OPINION, IT ALSO PROTECTS BUSINESSMEN FROM
RETROACTIVE INFRINGEMENT SUITS AND JUDICIAL EXPANSION OF A MONOPOLY
SPHERE BEYOND THAT WHICH A PATENT EXPRESSLY AUTHORIZES.  THE PLAN IS
JUST, FAIR, AND REASONABLE.  IN EFFECT IT IS NULLIFIED BY THIS DECISION
UNDERCUTTING WHAT THE COURT HAS HERETOFORE RECOGNIZED AS WISE
SAFEGUARDS.  SEE MILCOR STEEL CO. V. FULLER CO., 316 U.S. 143, 148. 
ONE NEED NOT BE A PROPHET TO SUGGEST THAT TODAY'S RHAPSODY ON THE
VIRTUE OF THE "DOCTRINE OF EQUIVALENTS" WILL, IN DIRECT CONTRAVENTION
OF THE MILLER CASE, SUPRA, MAKE ENLARGEMENT OF PATENT CLAIMS THE "RULE"
RATHER THAN THE "EXCEPTION." 

WHATEVER THE MERITS OF THE "DOCTRINE OF EQUIVALENTS" WHERE
DIFFERENCES BETWEEN THE CLAIMS OF A PATENT AND THE ALLEGEDLY INFRINGING
PRODUCT ARE DE MINIMIS, COLORABLE ONLY, AND WITHOUT SUBSTANCE, THAT
DOCTRINE SHOULD HAVE NO APPLICATION TO THE FACTS OF THIS CASE.  FOR THE
DIFFERENCES BETWEEN RESPONDENT'S WELDING SUBSTANCE AND PETITIONERS'
CLAIMED FLUX WERE NOT NEARLY SO SLIGHT.  THE CLAIMS RELIED UPON HERE
DID NOT INVOLVE ANY MECHANICAL STRUCTURE OR PROCESS WHERE INVENTION LAY
IN THE CONSTRUCTION OR METHOD RATHER THAN IN THE MATERIALS USED. 
RATHER THEY WERE BASED WHOLLY ON USING PARTICULAR MATERIALS FOR A
PARTICULAR PURPOSE.  RESPONDENT'S ASSIGNORS EXPERIMENTED WITH SEVERAL
METALLIC SILICATES, INCLUDING THAT OF MANGANESE.  ACCORDING TO THE
SPECIFICATIONS (IF THESE ARE TO BE CONSIDERED) THEY CONCLUDED THAT
WHILE SEVERAL WERE "MORE OR LESS EFFICACIOUS IN OUR PROCESS, WE PREFER
TO USE SILICATES OF THE ALKALINE EARTH METALS."  SEVERAL OF THEIR
CLAIMS WHICH THIS COURT FOUND TOO BROAD TO BE VALID ENCOMPASSED
MANGANESE SILICATE; THE ONLY CLAIMS FOUND VALID DID NOT.  YET TODAY THE
COURT DISREGARDS THAT CRUCIAL DEFICIENCY, HOLDING THOSE CLAIMS
INFRINGED BY A COMPOSITION OF WHICH 88.49% BY WEIGHT IS MANGANESE
SILICATE. 

IN VIEW OF THE INTENSE STUDY AND EXPERIMENTATION OF RESPONDENT'S
ASSIGNORS WITH MANGANESE SILICATE, IT WOULD BE FRIVOLOUS TO CONTEND
THAT FAILURE SPECIFICALLY TO INCLUDE THAT SUBSTANCE IN A PRECISE CLAIM
WAS UNINTENTIONAL.  NOR DOES RESPONDENT ATTEMPT TO GIVE THAT OR ANY
OTHER EXPLANATION FOR ITS OMISSION.  BUT THE SIMILAR USE OF MANGANESE
IN PRIOR EXPIRED PATENTS, REFERRED TO IN THE COURT'S OPINION, RAISES
FAR MORE THAN A SUSPICION THAT ITS ELIMINATION FROM THE VALID CLAIMS
STEMMED FROM FEAR THAT ITS INCLUSION BY NAME MIGHT RESULT IN DENIAL OR
SUBSEQUENT INVALIDATION OF RESPONDENT'S PATENT. 

UNDER THESE CIRCUMSTANCES I THINK PETITIONERS HAD A RIGHT TO ACT ON
THE BELIEF THAT THIS COURT WOULD FOLLOW THE PLAIN MANDATES OF CONGRESS
THAT A PATENT'S PRECISE CLAIMS MARK ITS MONOPOLY BOUNDARIES, AND THAT
EXPANSION OF THOSE CLAIMS TO INCLUDE MANGANESE COULD BE OBTAINED ONLY
IN A STATUTORY REISSUE PROCEEDING.  THE COURT'S RULING TODAY SETS THE
STAGE FOR MORE PATENT "FRAUD" AND "PIRACY" AGAINST BUSINESS THAN COULD
BE EXPECTED FROM FAITHFUL OBSERVANCE OF THE CONGRESSIONALLY ENACTED
PLAN TO PROTECT BUSINESS AGAINST JUDICIAL EXPANSION OF PRECISE PATENT
CLAIMS.  HEREAFTER A MANUFACTURER CANNOT RELY ON WHAT THE LANGUAGE OF A
PATENT CLAIMS.  HE MUST BE ABLE, AT THE PERIL OF HEAVY INFRINGEMENT
DAMAGES, TO FORECAST HOW FAR A COURT RELATIVELY UNVERSED IN A
PARTICULAR TECHNOLOGICAL FIELD WILL EXPAND THE CLAIM'S LANGUAGE AFTER
CONSIDERING THE TESTIMONY OF TECHNICAL EXPERTS IN THAT FIELD.  TO
BURDEN BUSINESS ENTERPRISE ON THE ASSUMPTION THAT MEN POSSESS SUCH A
PRESIENCE BODES ILL FOR THE KIND OF COMPETITIVE ECONOMY THAT IS OUR
PROFESSED GOAL. 

THE WAY SPECIFIC PROBLEMS ARE APPROACHED NATURALLY HAS MUCH TO DO
WITH THE DECISIONS REACHED.  A HOST OF PRIOR CASES, TO SOME OF WHICH I
HAVE REFERRED, HAVE TREATED THE 17-YEAR MONOPOLY AUTHORIZED BY VALID
PATENTS AS A NARROW EXCEPTION TO OUR COMPETITIVE ENTERPRISE SYSTEM. 
FOR THAT REASON, THEY HAVE EMPHASIZED THE IMPORTANCE OF LEAVING
BUSINESS MEN FREE TO UTILIZE ALL KNOWLEDGE NOT PREEMPTED BY THE PRECISE
LANGUAGE OF A PATENT CLAIM.  E.G., SONTAG STORES CO. V. NUT CO., 310
U.S. 281, AND CASES THERE CITED.  IN THE SONTAG CASE MR. JUSTICE
MCREYNOLDS, SPEAKING FOR A UNANIMOUS COURT, SAID IN PART:  "IN THE CASE
UNDER CONSIDERATION THE PATENTEE MIGHT HAVE INCLUDED IN THE APPLICATION
FOR THE ORIGINAL PATENT, CLAIMS BROAD ENOUGH TO EMBRACE PETITIONER'S
ACCUSED MACHINE, BUT DID NOT.  THIS 'GAVE THE PUBLIC TO UNDERSTAND'
THAT WHATEVER WAS NOT CLAIMED 'DID NOT COME WITHIN HIS PATENT AND MIGHT
RIGHTFULLY BE MADE BY ANYONE.'"  ID. AT 293. 

THE COURT'S CONTRARY APPROACH TODAY CAUSES IT TO RETREAT FROM THIS
SOUND PRINCIPLE.  THE DAMAGES RETROACTIVELY ASSESSED AGAINST
PETITIONERS FOR WHAT WAS AUTHORIZED UNTIL TODAY ARE BUT THE INITIAL
INSTALLMENT ON THE COST OF THAT RETREAT. 

FN1  FOR THIS REASON THE TIDBITS OF EVIDENCE PAINSTAKINGLY SELECTED
FROM THE RECORD BY THIS COURT HAVE NO SIGNIFICANCE, SINCE THE TRIAL
COURT AVOWEDLY DID NOT LOOK BEYOND THE SPECIFICATIONS THEMSELVES. 

FN2  THIS COURT'S APPROVAL OF THE TRIAL JUDGE'S RESORT TO
SPECIFICATIONS IS IRONIC AS WELL AS UNFORTUNATE.  IN ITS ORIGINAL
OPINION THIS COURT REJECTED RESPONDENT'S CONTENTION THAT THE VERY
LANGUAGE INVOKED HERE TO SUPPORT INFRINGEMENT SHOULD BE APPLIED TO
VALIDATE A CLAIM OTHERWISE TOO BROAD TO BE UPHELD.  336 U.S. 271, 277. 

FN3  "THIS PROVISION WAS INSERTED IN THE LAW FOR THE PURPOSE OF
RELIEVING THE COURTS FROM THE DUTY OF ASCERTAINING THE EXACT INVENTION
OF THE PATENTEE BY INFERENCE AND CONJECTURE, DERIVED FROM A LABORIOUS
EXAMINATION OF PREVIOUS INVENTIONS, AND A COMPARISON THEREOF WITH THAT
CLAIMED BY HIM.  THIS DUTY IS NOW CAST UPON THE PATENT OFFICE.  THERE
HIS CLAIM IS, OR IS SUPPOSED TO BE, EXAMINED, SCRUTINIZED, LIMITED, AND
MADE TO CONFORM TO WHAT HE IS ENTITLED TO.  IF THE OFFICE REFUSES TO
ALLOW HIM ALL THAT HE ASKS, HE HAS AN APPEAL.  BUT THE COURTS HAVE NO
RIGHT TO ENLARGE A PATENT BEYOND THE SCOPE OF ITS CLAIM AS ALLOWED BY
THE PATENT OFFICE, OR THE APPELLATE TRIBUNAL TO WHICH CONTESTED
APPLICATIONS ARE REFERRED.  WHEN THE TERMS OF A CLAIM IN A PATENT ARE
CLEAR AND DISTINCT (AS THEY ALWAYS SHOULD BE), THE PATENTEE, IN A SUIT
BROUGHT UPON THE PATENT, IS BOUND BY IT.  MERRILL V. YEOMANS, 94 U.S.
568."  KEYSTONE BRIDGE CO. V. PHOENIX IRON CO., 95 U.S. 274, 278. 

MR. JUSTICE DOUGLAS, DISSENTING. 

THE COURT APPLIES THE DOCTRINE OF EQUIVALENTS IN A WAY WHICH SUBVERTS
THE CONSTITUTIONAL AND STATUTORY SCHEME FOR THE GRANT AND USE OF
PATENTS. 

THE CLAIMS OF THE PATENT ARE LIMITED TO A FLUX "CONTAINING A MAJOR
PROPORTION OF ALKALINE EARTH METAL SILICATE."  MANGANESE SILICATE, THE
FLUX WHICH IS HELD TO INFRINGE, IS NOT AN ALKALINE EARTH METAL
SILICATE.  IT WAS DISCLOSED IN THE APPLICATION AND THEN EXCLUDED FROM
THE CLAIMS.  IT THEREFORE BECAME PUBLIC PROPERTY.  SEE MAHN V. HARWOOD,
112 U.S. 354, 361.  IT WAS, TO BE SURE, MENTIONED IN THE
SPECIFICATIONS.  BUT THE MEASURE OF THE GRANT IS TO BE FOUND IN THE
CLAIMS, NOT IN THE SPECIFICATIONS.  MILCOR STEEL CO. V. FULLER CO., 316
U.S. 143, 145, 146.  THE SPECIFICATIONS CAN BE USED TO LIMIT BUT NEVER
TO EXPAND THE CLAIM.  SEE MCCLAIN V. ORTMAYER, 141 U.S. 419, 424. 

THE COURT NOW ALLOWS THE DOCTRINE OF EQUIVALENTS TO ERASE THOSE TIME
HONORED RULES.  MOREOVER, A DOCTRINE WHICH IS SAID TO PROTECT AGAINST
PRACTICING "A FRAUD ON A PATENT" IS USED TO EXTEND A PATENT TO A
COMPOSITION WHICH COULD NOT BE PATENTED.  FOR MANGANESE SILICATE HAD
BEEN COVERED BY PRIOR PATENTS, NOW EXPIRED.  THUS WE END WITH A STRANGE
ANOMALY:  A MONOPOLY IS OBTAINED ON AN UNPATENTED AND UNPATENTABLE
ARTICLE. 
..END :



















CAPITOL GREYHOUND LINES V. BRICE, 339 U.S. 542 


NO. 118.  ARGUED DECEMBER 5, 1949.  - DECIDED MAY 15, 1950.  - MD. - ,
64 A.2D 284, AFFIRMED. 


SUPP.) IMPOSES A TAX OF 2% OF THE FAIR MARKET VALUE OF MOTOR VEHICLES
AS A CONDITION PRECEDENT TO THE ISSUANCE OF CERTIFICATES OF TITLE
THERETO AND TO THE OPERATION OF THE VEHICLES OVER MARYLAND ROADS.  THIS
TAX IS APPLIED INDISCRIMINATELY TO INTERSTATE AND INTRASTATE COMMON
CARRIERS TRANSPORTING PASSENGERS OVER MARYLAND ROADS AND THE PROCEEDS
ARE USED WHOLLY FOR ROAD PURPOSES.  FOR THE PRIVILEGE OF USING ITS
ROADS MARYLAND ALSO CHARGES COMMON CARRIERS A MILEAGE TAX FOR EACH
PASSENGER SEAT OF 1/30 OF A CENT PER MILE TRAVELED ON MARYLAND ROADS. 
HELD: 

1.  AS APPLIED GENERALLY TO INTERSTATE CARRIERS TRANSPORTING
PASSENGERS OVER MARYLAND ROADS, THE TITLE TAX OF 2% OF FAIR MARKET
VALUE DOES NOT VIOLATE THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  PP. 543-548. 

(A)  SUCH A TAX MUST BE JUDGED BY ITS RESULT, NOT BY ITS FORMULA, AND
MUST STAND UNLESS PROVEN TO BE IN EXCESS OF FAIR COMPENSATION FOR THE
PRIVILEGE OF USING THE ROADS.  PP. 544-547. 

(B)  THE TITLE TAX IS NOT INVALID ON THE GROUND THAT IT VARIES FOR
EACH CARRIER WITHOUT RELATION TO ROAD USE.  PP. 545-546. 

(C)  IF A NEW RULE PROHIBITING TAXES ON INTERSTATE CARRIERS MEASURED
BY VEHICLE VALUE IS TO BE DECLARED, IT SHOULD BE DECLARED BY CONGRESS,
NOT BY THIS COURT.  PP. 547-548. 

2.  THE RECORD IN THIS CASE IS INSUFFICIENT TO INVALIDATE THE TAX, AS
APPLIED TO APPELLANTS, ON THE GROUND THAT THE TAXES ACTUALLY LEVIED ARE
IN EXCESS OF A FAIR COMPENSATION FOR THE PRIVILEGE OF USING MARYLAND
ROADS.  P. 548. 

CAPITOL GREYHOUND LINES ET AL. V. BRICE, COMMISSIONER OF MOTOR
VEHICLES. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

THE CASE IS STATED IN THE FIRST TWO PARAGRAPHS OF THE OPINION.  THE
JUDGMENT BELOW IS AFFIRMED, P. 548. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE BASIC QUESTION PRESENTED IS WHETHER ONE OF TWO MARYLAND TAXES
IMPOSED ON ALL COMMON CARRIERS TRANSPORTING PASSENGERS OVER MARYLAND
ROADS CAN BE EXACTED FROM INTERSTATE CARRIERS CONSISTENTLY WITH THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  A SUBSIDIARY CONTENTION
IMPLIEDLY RAISED BY CARRIER APPELLANTS HERE IS THAT THE TAX IS INVALID
AS APPLIED TO THEM.  THE SUPREME COURT OF MARYLAND UPHELD THE TAX,  -
MD. - , 64 A.2D 284.  THE CASE IS HERE ON APPEAL UNDER 28 U.S.C. SEC.
1257(2). 

THE TAX CHALLENGED BY APPELLANTS IS PRESCRIBED BY SEC. 25A OF ART. 66
1/2 OF THE ANNOTATED CODE OF MARYLAND, 1947 CUM. SUPP.  IN THE LANGUAGE
OF APPELLANTS THAT SECTION IMPOSES "A TAX OF 2% UPON THE FAIR MARKET
VALUE OF MOTOR VEHICLES USED IN INTERSTATE COMMERCE AS A CONDITION
PRECEDENT TO THE ISSUANCE OF CERTIFICATES OF TITLE THERETO (THE
ISSUANCE OF SUCH CERTIFICATES BEING A FURTHER CONDITION PRECEDENT TO
THE REGISTRATION AND OPERATION OF SUCH VEHICLES IN THE STATE OF
MARYLAND) ...  "  FN1 

FIRST.  APPELLANTS DO NOT CONTEND THAT AS INTERSTATE CARRIERS THEY
ARE WHOLLY EXEMPT FROM STATE TAXATION.  THIS COURT AND OTHERS HAVE
CONSISTENTLY UPHELD TAXES ON INTERSTATE CARRIERS TO COMPENSATE A STATE
FAIRLY FOR THE PRIVILEGE OF USING ITS ROADS OR FOR THE COST OF
ADMINISTERING STATE TRAFFIC REGULATIONS.  FN2  COURTS HAVE INVOKED THE
COMMERCE CLAUSE TO INVALIDATE STATE TAXES ON INTERSTATE CARRIERS ONLY
UPON FINDING THAT:  (1) THE TAX DISCRIMINATED AGAINST INTERSTATE
COMMERCE IN FAVOR OF INTRASTATE COMMERCE; (2) THE TAX WAS IMPOSED ON
THE PRIVILEGE OF DOING AN INTERSTATE BUSINESS AS DISTINGUISHED FROM A
TAX EXACTING CONTRIBUTIONS FOR ROAD CONSTRUCTION AND MAINTENANCE OR FOR
ADMINISTRATION OF ROAD LAWS; OR (3) THE AMOUNT OF THE TAX EXCEEDED FAIR
COMPENSATION TO THE STATE.  FN3  THIS MARYLAND TAX APPLIES TO
INTERSTATE AND INTRASTATE COMMERCE WITHOUT DISCRIMINATION.  THE TAX
PROCEEDS ARE USED BY MARYLAND WHOLLY FOR ROAD PURPOSES, AND THE STATE
SUPREME COURT HELD THAT THE TAX WAS IMPOSED FOR THE PRIVILEGE OF ROAD
USE.  AND NEITHER IN THE MARYLAND COURTS NOR HERE HAVE APPELLANTS
SPECIFICALLY CHARGED THAT THE AMOUNT OF TAXES IMPOSED ON CARRIERS WILL
ALWAYS BE IN EXCESS OF FAIR COMPENSATION.  THEIR CHALLENGE IS LEVELED
AGAINST THE FORMULA, NOT THE AMOUNT. 

THE TAXES UPHELD HAVE TAKEN MANY FORMS.  EXAMPLES ARE TAXES BASED ON
MILEAGE, CHASSIS WEIGHT, TONNAGE-CAPACITY, OR HORSEPOWER, SINGLY OR IN
COMBINATION - A LIST WHICH DOES NOT BEGIN TO EXHAUST THE INNUMERABLE
FACTORS BEARING ON THE FAIRNESS OF COMPENSATION BY EACH CARRIER TO A
STATE.  FN4 THE DIFFICULTY IN GEARING TAXES TO THESE FACTORS WAS
RECOGNIZED BY THIS COURT AS EARLY AS KANE V. NEW JERSEY, 242 U.S. 160,
168, WHERE IT SAID THAT SO LONG AS FEES ARE REASONABLE IN AMOUNT "IT IS
CLEARLY WITHIN THE DISCRETION OF THE STATE TO DETERMINE WHETHER THE
COMPENSATION FOR THE USE OF ITS HIGHWAYS BY AUTOMOBILES SHALL BE
DETERMINED BY WAY OF A FEE, PAYABLE ANNUALLY OR SEMIANNUALLY, OR BY A
TOLL BASED ON MILEAGE OR OTHERWISE."  FN5  LATER, IN REJECTING
CONTENTIONS THAT THE VALIDITY OF TAXES MUST BE DETERMINED BY FORMULA
RATHER THAN RESULT, THE COURT HELD THAT A FLAT FEE ON THE PRIVILEGE OF
USING STATE HIGHWAYS "IS NOT A FORBIDDEN BURDEN ON INTERSTATE COMMERCE"
UNLESS "UNREASONABLE IN AMOUNT."  MORF V. BINGAMAN, 298 U.S. 407, 412. 
SEE ALSO AERO TRANSIT CO. V. COMM'RS, 332 U.S. 495, AND ANNOTATION
THERETO, 92 L. ED. 109, 119-120.  YET CLEARLY A FLAT FEE IS NOT GEARED
TO MILEAGE, WEIGHT OR ANY OTHER FACTOR RELEVANT IN CONSIDERING THE
FAIRNESS OF COMPENSATION FOR ROAD USE.  THUS, UNLESS WE ARE TO DEPART
FROM PRIOR DECISIONS, THE MARYLAND TAX BASED ON THE COST OF THE
VEHICLES SHOULD BE JUDGED BY ITS RESULT, NOT ITS FORMULA, AND MUST
STAND UNLESS PROVEN TO BE UNREASONABLE IN AMOUNT FOR THE PRIVILEGE
GRANTED. 

APPELLANTS, HOWEVER, IN EFFECT URGE THAT WE MAKE AN EXCEPTION TO THE
GENERAL RULE AND STRIKE DOWN THIS TAX FORMULA REGARDLESS OF WHETHER THE
AMOUNT OF THE TAX IS WITHIN THE LIMITS OF FAIR COMPENSATION.  NO TAX
PRECISELY LIKE THIS HAS PREVIOUSLY BEEN BEFORE US.  APPELLANTS ARGUE
THAT A TAX ON VEHICLE VALUE SHOULD BE FORBIDDEN BY THE COMMERCE CLAUSE
BECAUSE IT VARIES FOR EACH CARRIER WITHOUT RELATION TO ROAD USE.  IN
SUPPORT OF THIS CONTENTION, THEY POINT TO THE FACTS SHOWN IN THIS
RECORD.  EACH OF THE APPELLANT CARRIERS, ACCORDING TO ADMITTED
ALLEGATIONS, BOUGHT A NEW PASSENGER-CARRYING VEHICLE AND DECLARED A
PURPOSE TO USE ITS VEHICLE ON ONE OF ITS MARYLAND ROUTES.  THE MARYLAND
PORTIONS OF THESE THREE ROUTES ARE 9, 41 AND 64 MILES RESPECTIVELY. 
THE STATE TAXES COMPUTED ON THE FAIR MARKET VALUE OF EACH VEHICLE ARE
$505.17, $580 AND $372.55, RESPECTIVELY.  THIS SHOWING DOES INDICATE
THAT THE TITLE TAX FALLS SHORT OF ACHIEVING UNIFORMITY AMONG CARRIERS
IN RELATION TO ROAD USE.  MOREOVER, AS ARGUED, IT MAY WELL BE UNWISE TO
SUBJECT CARRIERS TO THE MONETARY TEMPTATION INCIDENT TO THE APPLICATION
OF A TAX THAT HITS A CARRIER ONLY WHEN IT PURCHASES A BUS.  BUT THAT IS
NOT OUR ISSUE.  AND IT SHOULD BE NOTED THAT THE TOTAL CHARGE OF
MARYLAND FOR THE PRIVILEGE OF USING ITS ROADS WILL NOT SHOW THE SAME
DISPARITY AMONG CARRIERS.  FOR MARYLAND ALSO CHARGES A MILEAGE TAX,
FN6  AND THIS TAX ADDED TO THE TITLE TAX IS WHAT MARYLAND ACTUALLY
CHARGES FOR ITS ROAD PRIVILEGES.  THUS THE TOTAL CHARGE AS AMONG
CARRIERS DOES VARY SUBSTANTIALLY WITH THE MILEAGE TRAVELED. 

WE RECOGNIZE THAT IN THE ABSENCE OF CONGRESSIONAL ACTION THIS COURT
HAS PRESCRIBED THE RULES WHICH DETERMINE THE POWER OF STATES TO TAX
INTERSTATE TRAFFIC, AND THEREFORE SHOULD AFTER THESE RULES IF NECESSARY
TO PROTECT INTERSTATE COMMERCE FROM OBSTRUCTIVE BARRIERS.  BUT WITH
FULL APPRECIATION OF CONGENITAL INFIRMITIES OF THE MARYLAND FORMULA -
AND INDEED OF ANY FORMULA IN THIS FIELD - AS WELL AS OF OUR PRESENT
RULES TO TEST ITS VALIDITY, WE ARE BY NO MEANS SURE THAT THE REMEDY
SUGGESTED BY APPELLANTS WOULD NOT BRING ABOUT GREATER ILLS.  COMPLETE
FAIRNESS WOULD REQUIRE THAT A STATE TAX FORMULA VARY WITH EVERY FACTOR
AFFECTING APPROPRIATE COMPENSATION FOR ROAD USE.  THESE FACTORS, LIKE
THOSE RELEVANT IN CONSIDERING THE CONSTITUTIONALITY OF OTHER STATE
TAXES, ARE SO COUNTLESS THAT WE MUST BE CONTENT WITH "ROUGH
APPROXIMATION RATHER THAN PRECISION."  HARVESTER CO. V. EVATT, 329 U.S.
416, 422-423.  EACH ADDITIONAL FACTOR ADDS TO ADMINISTRATIVE BURDENS OF
ENFORCEMENT,  FN7  WHICH FALL ALIKE ON TAXPAYERS AND GOVERNMENT.  WE
HAVE RECOGNIZED THAT SUCH BURDENS MAY BE SUFFICIENT TO JUSTIFY STATES
IN IGNORING EVEN SUCH A KEY FACTOR AS MILEAGE, ALTHOUGH THE RESULT MAY
BE A TAX WHICH ON ITS FACE APPEARS TO BEAR WITH UNEQUAL WEIGHT UPON
DIFFERENT CARRIERS.  AERO TRANSIT CO. V. GEORGIA COMM'N, 295 U.S. 285,
289.  UPON THIS TYPE OF REASONING RESTS OUR GENERAL RULE THAT TAXES
LIKE THAT OF MARYLAND HERE ARE VALID UNLESS THE AMOUNT IS SHOWN TO BE
IN EXCESS OF FAIR COMPENSATION FOR THE PRIVILEGE OF USING STATE ROADS. 

OUR ADHERENCE TO EXISTING RULES DOES NOT MEAN THAT ANY GROUP OF
CARRIERS IS REMEDILESS IF THE TOTAL MARYLAND TAXES ARE OUT OF LINE WITH
FAIR COMPENSATION DUE TO MARYLAND.  UNDER THE RULES WE HAVE PREVIOUSLY
PRESCRIBED, SUCH CARRIERS MAY CHALLENGE THE TAXES AS APPLIED, AND UPON
PROPER PROOF OTAIN A JUDICIAL DECLARATION OF THEIR INVALIDITY AS
APPLIED.  INGELS V. MORF, 300 U.S. 290.  CF. CLARK V. PAUL GRAY, INC.,
306 U.S. 583. 

IF A NEW RULE PROHIBITING TAXES MEASURED BY VEHICLE VALUE IS TO BE
DECLARED, WE THINK CONGRESS SHOULD DO IT.  FN8  WE DECLINE TO HOLD THAT
THIS MARYLAND TITLE TAX LAW IS WHOLLY INVALID HOWEVER APPLIED. 

SECOND.  LITTLE NEED BE SAID AS TO THE FAINT CONTENTION HERE THAT THE
TAXES ACTUALLY LEVIED AGAINST APPELLANTS ARE IN EXCESS OF A FAIR
COMPENSATION FOR THE PRIVILEGE OF USING MARYLAND ROADS.  WHILE THE
STATE SUPREME COURT DID PASS ON THIS QUESTION, HOLDING THAT APPELLANTS
HAD FAILED TO PROVE EXCESSIVENESS, THE ASSIGNMENTS OF ERROR HERE DID
NOT SPECIFICALLY MENTION SUCH A CHALLENGE.  THAT COURT SATISFACTORILY
DISPOSED OF ANY QUESTION OF THE SIZE OF THE FEES IN RELATIONSHIP TO THE
ROAD PRIVILEGES GRANTED.  THE BURDEN OF PROOF IN THIS RESPECT IS ON A
CARRIER WHO CHALLENGES A STATE LAW.  CLARK V. PAUL GRAY, INC., 306 U.S.
583, 598-600.  WE AGREE WITH THE SUPREME COURT OF MARYLAND THAT HERE
THERE IS A COMPLETE AND UTTER LACK OF PROOF SUFFICIENT TO INVALIDATE
THE STATE LAW ON THIS GROUND.  SEE DIXIE OHIO CO. V. COMMISSION, 306
U.S. 72, 77-78.  AFFIRMED. 

FN1  MARYLAND ALSO IMPOSES A TAX FOR EACH PASSENGER SEAT OF ONE
THIRTIETH OF A CENT PER MILE TRAVELED ON MARYLAND ROADS.  MARYLAND ANN.
CODE (1947 CUM. SUPP.), ART. 81, SEC. 218.  PRIOR TO 1947 THE MILEAGE
TAX APPLIED BOTH TO INTERSTATE AND INTRASTATE CARRIERS; THE 2% "TITLING
TAX" HERE CHALLENGED APPLIED TO INTRASTATE CARRIERS ONLY.  AT THAT TIME
THE STATE LEGISLATURE MADE SIGNIFICANT CHANGES.  IT MADE THE TITLING
TAX APPLICABLE TO INTERSTATE AS WELL AS TO INTRASTATE CARRIERS AND
REDUCED THE SEAT-MILE TAX FROM ONE-EIGHTEENTH CENT TO ONE-THIRTIETH
CENT.  CHAPTERS 560 AND 326, 1947 LAWS OF THE GENERAL ASSEMBLY OF
MARYLAND. 

FN2  SEE CASES COLLECTED IN NOTES, 75 L. ED. 953 AND 92 L. ED. 109. 

FN3  SPROUT V. SOUTH BEND, 277 U.S. 163; INTERSTATE TRANSIT, INC. V.
LINDSEY, 283 U.S. 183; INGELS V. MORF, 300 U.S. 290.  AND SEE CASE
COLLECTIONS CITED IN NOTE 2, SUPRA. 

FN4  FOR EXAMPLES OF THE MANY FACTORS ON WHICH TAXES HAVE BEEN
HINGED, SEE NOTE, 92 L. ED. 109, 119-123. 

FN5  THIS STATEMENT WAS MADE IN A CASE WHERE FLAT LICENSE FEES WERE
BASED ON A VEHICLE'S RATED HORSEPOWER.  IN THAT CASE THE PERSON HELD
LIABLE FOR THE STATE TAX WAS A NONRESIDENT DRIVING THROUGH THE STATE. 
BY CITATION OF THIS CASE WE DO NOT MEAN TO IMPLY THAT THE
CONSTITUTIONAL RULE RELATING TO A STATE'S POWER TO COLLECT FOR THE USE
OF ITS ROADS BY OCCASIONAL TRAVELERS IS AS BROAD AS WHERE ROAD USE BY
CARRIERS IS INVOLVED.  SEE AERO TRANSIT CO. V. COMM'RS, 332 U.S. 495,
503.  SEE ALSO THE OPINIONS IN EDWARDS V. CALIFORNIA, 314 U.S. 160. 

FN6  SEE NOTE 1, SUPRA. 

FN7  ONE EXAMPLE OF THE COMPLEXITIES SPRINGING FROM STATE ATTEMPTS TO
WEIGH NUMEROUS FACTORS WAS THE INDIANA TAX UPHELD IN EAVEY CO. V.
DEPARTMENT OF TREASURY, 216 IND. 255, 264, 24 N.E.2D 268, 272, WHICH
WAS "  ...  BASED UPON THE CARRYING CAPACITY, NUMBER OF WHEELS PER
AXLE, LOAD PER AXLE, SIZE OF TIRES USED, WEIGHT, AND OTHER ELEMENTS
DESCRIBED IN THE ACT, ALL OF WHICH BEAR A DIRECT RELATION TO THE
HAZARDS OF THE HIGHWAYS." 

FN8  CONGRESS HAS PASSED COMPREHENSIVE LEGISLATION REGULATING
INTERSTATE CARRIERS IN WHICH IT IS DECLARED THAT "NOTHING IN THIS
CHAPTER SHALL BE CONSTRUED TO AFFECT THE POWERS OF TAXATION OF THE
SEVERAL STATES  ...  "  49 U.S.C. SEC. 302(B).  SEE BRASHEAR FREIGHT
LINES V. PUBLIC SERV. COMM'N, 23 F.SUPP.  865; SEE ALSO MAURER V.
HAMILTON, 309 U.S. 598.  IT IS INTERESTING TO NOTE THAT THE INTERSTATE
COMMERCE COMMISSION CHARGED WITH THE DUTY OF FIXING RATES AND
ADMINISTERING THE MOTOR CARRIER ACT REQUIRES CARRIERS TO KEEP ACCOUNTS
SHOWING THE "COST OF ALL TAXES, LICENSES AND FEES ASSESSED FOR THE
PRIVILEGE OF OPERATING REVENUE VEHICLES OVER THE HIGHWAYS, SUCH AS
REGISTRATION FEES, LICENSE PLATE FEES,  ...  CERTIFICATES OF TITLE FEES
...  AND SIMILAR ITEMS ...  "  49 CFR, 1947 SUPP., SEC. 182.5220. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

ONCE MORE WE ARE CALLED UPON TO SUBJECT A STATE TAX ON INTERSTATE
MOTOR TRAFFIC TO THE SCRUTINY WHICH THE COMMERCE CLAUSE REQUIRES SO
THAT INTERSTATE COMMERCE MAY ENJOY FREEDOM FROM STATE TAXATION OUTSIDE
OF THOSE NARROW LIMITS WITHIN WHICH STATES ARE FREE TO BURDEN SUCH
COMMERCE. 

THE ESSENTIAL FACTS ARE EASILY STATED.  BY VARIOUS PROVISIONS OF
MARYLAND LAW, AN INTERSTATE MOTOR CARRIER MAY NOT OPERATE ITS VEHICLES
WITHIN THE STATE UNTIL IT HAS REGISTERED THEM.  AS A PREREQUISITE TO
REGISTRATION THE CARRIER MUST OBTAIN A CERTIFICATE OF TITLE FOR EACH
VEHICLE.  SECTION 25A OF ARTICLE 66 1/2 OF THE ANNOTATED CODE OF
MARYLAND, 1947 CUM. SUPP., IMPOSES A SO-CALLED TITLING TAX OF 2% OF THE
"FAIR MARKET VALUE" OF EACH MOTOR VEHICLE "FOR THE ISSUANCE OF EVERY
ORIGINAL CERTIFICATE OF TITLE  ...  AND  ...  EVERY SUBSEQUENT
CERTIFICATE OF TITLE  ...  IN THE CASE OF SALES OR RESALES  ...  "  FN1
THUS, THE TAX DOES NOT STRIKE AT PERIODIC INTERVALS BUT ONLY WHEN A
PURCHASE HAS BEEN MADE OF A MOTOR VEHICLE WHICH IS TO BE OPERATED IN
WHOLE OR PART ON MARYLAND HIGHWAYS, WHETHER THE VEHICLE BE NEW OR OLD. 
THE ENTIRE PROCEEDS OF THE TAX ARE DEVOTED TO ROAD PURPOSES. 

APPELLANTS OPERATE INTERSTATE BUS LINES, IN PART OVER MARYLAND
ROADS.  FN2  EACH PURCHASED A BUS, BUT REFUSED TO PAY THE TAX ON THE
GROUND THAT SEC. 25A WAS INVALID UNDER THE COMMERCE CLAUSE AS APPLIED
TO INTERSTATE CARRIERS.  THEY WERE DENIED CERTIFICATES OF TITLE BY THE
STATE AND THEREUPON FILED PETITIONS FOR MANDAMUS TO SECURE THEM.  THE
MARYLAND COURT OF APPEALS SUSTAINED THE LEVY, 64 A.2D 284, AND THE CASE
IS HERE ON APPEAL.  28 U.S.C. SEC. 1257(2).    I. SINCE "A STATE MAY
NOT LAY A TAX ON THE PRIVILEGE OF ENGAGING IN INTERSTATE COMMERCE," THE
TITLING TAX CAN BE SUSTAINED ONLY IF IT BE A FAIR IMPOSITION FOR THE
USE OF HIGHWAYS CONSTRUCTED AND MAINTAINED BY MARYLAND OR FOR THE COST
OF TRAFFIC REGULATION.  INTERSTATE TRANSIT, INC. V. LINDSEY, 283 U.S.
183, 185; SEE ALSO DIXIE OHIO EXPRESS CO. V. STATE REVENUE COMM'N, 306
U.S. 72, 76.  THE RIGHT OF A STATE TO LEVY SUCH A COMPENSATORY TAX ALSO
AS TO INTERSTATE COMMERCE FOR SPECIAL BENEFITS IS WELL SETTLED.  THE
SUBJECTION OF INTERSTATE MOTOR TRAFFIC TO SUCH STATE POWER IS ONLY A
PARTICULAR APPLICATION OF A GENERAL PRINCIPLE.  CLYDE MALLORY LINES V.
ALABAMA, 296 U.S. 261, 267-68, AND CASES CITED.  BUT WHETHER THE TAX
NOW UNDER REVIEW COMES WITHIN THE SCOPE OF THE PRINCIPLE MUST BE TESTED
BY THE CONSIDERATIONS WHICH HAVE GUIDED PRIOR ADJUDICATION.  (ALL OF
THE CASES IN WHICH THIS COURT HAS DEALT WITH OUR SPECIFIC PROBLEM ARE
LISTED, AND THEIR RELEVANT FACTS DESCRIBED, IN AN APPENDIX TO THIS
OPINION, POST, P. 561.)  IF A NEW PRINCIPLE IS TO BE ANNOUNCED, IT,
TOO, MUST STAND THE TEST OF REASON IN RELATION TO THE COMMERCE CLAUSE. 

SINCE THE LEVY IS UPON COMMERCE EXCLUSIVELY INTERSTATE, AND THEREFORE
INEVITABLY AN INROAD UPON ITS NORMAL FREEDOM FROM STATE BURDENS,
MARYLAND MUST JUSTIFY IT AS A MEANS OF SECURING COMPENSATION FOR THE
ROAD USE WHICH THE STATE AFFORDS AND FOR WHICH IT MAY EXACT A RETURN. 
INTERSTATE TRANSIT, INC. V. LINDSEY, 283 U.S. 183.  THIS REQUIREMENT IS
NOT A CLOSE ACCOUNTING RESPONSIBILITY, HOWEVER, FOR THE STATES ARE FREE
TO EXERCISE A LOOSE JUDGMENT IN FIXING A QUID PRO QUO.  THUS, TAX
FORMULAS DEPENDENT ON ACTUAL USE OF THE STATE'S HIGHWAYS SATISFY THE
CONSTITUTIONAL TEST, WITHOUT MORE, SINCE THEY REFLECT AN OBVIOUS
RELATIONSHIP BETWEEN WHAT IS DEMANDED AND WHAT IS GIVEN BY THE STATE. 
TAXES BASED ON MILES OR TON-MILES HAVE ENCOUNTERED NO DIFFICULTY HERE. 
INTERSTATE BUSSES CORP. V. BLODGETT, 276 U.S. 245; CONTINENTAL BAKING
CO. V. WOODRING, 286 U.S. 352. 

AGAIN, IF THE STATE MAKES CLEAR BY DISPOSITION OF THE TAX PROCEEDS OR
BY STATUTORY DECLARATION THAT THE TAX IS LEVIED TO SECURE COMPENSATION
FOR ROAD USE, THE TAX CLASSIFICATION WILL BE SUSTAINED IF IT MAY FAIRLY
BE ATTRIBUTED TO THE PRIVILEGE OF ROAD USE, AS DISTINGUISHED FROM
ACTUAL USE.  COMPARE INTERSTATE TRANSIT, INC. V. LINDSEY, 283 U.S.
183(NO ALLOCATION OF PROCEEDS) WITH CLARK V. POOR, 274 U.S.
554(ALLOCATION); SEE APPENDIX, POST, P. 561.  THUS, MILEAGE MAY BE
IGNORED AND AN ANNUAL TAX MAY BE BASED ON HORSEPOWER, HENDRICK V.
MARYLAND, 235 U.S. 610, AND KANE V. NEW JERSEY, 242 U.S. 160; ON
CARRYING CAPACITY, CLARK V. POOR, 274 U.S. 554, AND HICKLIN V. CONEY,
290 U.S. 169; AND ON MANUFACTURER'S RATED CAPACITY, DIXIE OHIO EXPRESS
CO. V. STATE REVENUE COMM'N, 306 U.S. 72.  AND THE COURT HAS UPHELD
FLAT FEES IMPOSED WITHOUT REGARD TO SIZE OR WEIGHT FACTORS.  AERO
MAYFLOWER TRANSIT CO. V. GEORGIA PUBLIC SERVICE COMM'N, 295 U.S. 285;
MORF V. BINGAMAN, 298 U.S. 407; CLARK V. PAUL GRAY, INC., 306 U.S. 583;
AERO MAYFLOWER TRANSIT CO. V. BOARD OF RAILROAD COMM'RS, 332 U.S. 495. 

FROM THIS BODY OF DECISIONS, THE COURT NOW EXTRACTS THE PRINCIPLE
THAT, SO LONG AS A TAX IS LEVIED FOR HIGHWAY PURPOSES AND DOES NOT
FORMALLY DISCRIMINATE AGAINST INTERSTATE COMMERCE, IT CANNOT BE
ATTACKED FOR ITS TAX FORMULA OR CLASSIFICATION, BUT ONLY FOR
"EXCESSIVENESS" OF AMOUNT.  SUCH A VIEW COLLIDES WITH THE GUIDING
LIMITATION UPON STATE POWER ANNOUNCED IN INTERSTATE TRANSIT, INC. V.
LINDSEY, 283 U.S. 183, 186, THAT A TAX INTENDED TO COMPENSATE FOR ROAD
USE "WILL BE SUSTAINED UNLESS THE TAXPAYER SHOWS THAT IT BEARS NO
REASONABLE RELATION TO THE PRIVILEGE OF USING THE HIGHWAYS OR IS
DISCRIMINATORY."  THIS WARY QUALIFICATION WAS FORMULATED FOR THE COURT
BY MR. JUSTICE BRANDEIS, WHO WAS MOST ALERT NOT TO DENY TO STATES THE
RIGHT TO MAKE INTERSTATE COMMERCE PAY ITS WAY.  LIKEWISE, TODAY'S
OPINION DISREGARDS MCCARROLL V. DIXIE GREYHOUND LINES, INC., 309 U.S.
176, HOLDING A TAX INVALID SIMPLY BECAUSE THE STANDARD OF MEASUREMENT
WAS FOUND TO BE UNRELATED TO WHAT THE STATE GAVE.  IN THAT CASE, THE
TAX WAS DECLARED TO BE IMPOSED UPON THE PRIVILEGE OF HIGHWAY USE AND
THE PROCEEDS WERE ALLOCATED, AND, AS HERE, IT WAS SOUGHT TO JUSTIFY THE
TAX AS LEVIED FOR THAT PURPOSE.  THERE WAS NO SHOWING THAT THE STATE
WAS COLLECTING SUMS IN EXCESS OF ITS NEEDS OR THAT THE CARRIER WAS
BEING SUBJECTED TO SEVERE ECONOMIC STRAIN.  THE DEFECT LAY IN THE
CAPRICIOUS TAX FORMULA. 

IN NO PRIOR CASE HAS THE COURT UPHELD A TAX FORMULA BEARING NO
REASONABLE RELATIONSHIP TO THE PRIVILEGE OF ROAD USE.  NO SUPPORT TO
THE RESULT NOW REACHED IS LENT BY THE FACT THAT STATE TAX FORMULAS NEED
NOT BE LIMITED TO FACTORS REFLECTING ACTUAL ROAD USE, SUCH AS MILEAGE,
BUT MAY BE MEASURED BY THE PRIVILEGE OF HIGHWAY USE EXTENDED TO ALL
ALIKE.  IN A CASE INVOLVING A FLAT TAX CHARACTERIZED AS "MODERATE," THE
MATTER WAS ILLUMINATINGLY PUT FOR THE COURT BY MR. JUSTICE CARDOZO: 

"THERE WOULD BE ADMINISTRATIVE DIFFICULTIES IN COLLECTING ON THAT
BASIS (I.E., MILEAGE).  THE FEE IS FOR THE PRIVILEGE OF A USE AS
EXTENSIVE AS THE CARRIER WILLS THAT IT SHALL BE.  THERE IS NOTHING
UNREASONABLE OR OPPRESSIVE IN A BURDEN SO IMPOSED.  ...  ONE WHO
RECEIVES A PRIVILEGE WITHOUT LIMIT IS NOT WRONGED BY HIS OWN REFUSAL TO
ENJOY IT AS FREELY AS HE MAY."  AERO MAYFLOWER TRANSIT CO. V. GEORGIA
PUBLIC SERVICE COMM'N, 295 U.S. 285, 289. 

SYSTEMS OF TAXATION NEED NOT ACHIEVE THE IDEAL.  BUT THE FACT THAT
THE CONSTITUTION DOES NOT DEMAND PURE REASON AND IS SATISFIED BY
PRACTICAL REASON DOES NOT JUSTIFY UNREASON.  THOUGH A STATE MAY LEVY A
TAX BASED UPON THE PRIVILEGE GRANTED, AS DISTINGUISHED FROM ITS
EXERCISE, THIS DOES NOT SANCTION A TAX THE MEASURE OF WHICH HAS NO
REASONABLE RELATION TO THE PRIVILEGE.  REASON PRECLUDES THE NOTION THAT
A TAX FOR A PRIVILEGE MAY DISREGARD THE ABSENCE OF A NEXUS BETWEEN
PRIVILEGE AND TAX.  OUR DECISIONS REFLECT THAT REASON.  A STATE
NATURALLY MAY DEEM FACTORS OF SIZE OR WEIGHT TO BE RELEVANT.  HICKLIN
V. CONEY, 290 U.S. 169, 173.  SINCE THE RELATIONSHIP OF THESE FACTORS
TO HIGHWAY CONSTRUCTION AND MAINTENANCE COSTS CANNOT BE MEASURED WITH
EVEN PROXIMATE ACCURACY, THE STATES ARE NOT HOBBLED IN EXERCISING ROUGH
JUDGMENT IN DEVISING TAX FORMULAS, GIVING TO SIZE, WEIGHT AND OTHER
RELEVANT FACTORS SUCH RESPECT AS IS FAIRLY WITHIN THE RESTRAINTS OF
DECENCY.  CF. CLARK V. PAUL GRAY, INC., 306 U.S. 583, 594.  AND A
STATE, WITH AN EYE TO THE PROBLEMS OF TAX ADMINISTRATION, MAY ALSO
REASONABLY CONCLUDE THAT UNDER SOME CIRCUMSTANCES SUCH FACTORS ARE NOT
SUFFICIENTLY SIGNIFICANT OR MATERIAL TO CALL FOR INSISTENCE UPON
IMPRACTICAL DETAILS, AND THAT A FLAT TAX IS PROPER.  IN THE CASES
INVOLVING FLAT TAXES, THE COURT CAREFULLY POINTED OUT THAT THE
CLASSIFICATION WAS REASONABLE ON THE FACTS BEFORE IT.  MORF V.
BINGAMAN, 298 U.S. 407, 410; CLARK V. PAUL GRAY, INC., 306 U.S. 583,
600; AERO MAYFLOWER TRANSIT CO. V. BOARD OF RAILROAD COMM'RS, 332 U.S.
495, 506. 

MARYLAND'S TITLING TAX FAILS TO MEET THE JUSTIFICATIONS THAT SUSTAIN
A STATE'S POWER TO LEVY A TAX ON WHAT IS EXCLUSIVELY THE CARRYING ON OF
INTERSTATE COMMERCE.  GIVING THE STATE COURT'S JUDGMENT EVERY
INDULGENCE FOR SUPPORTING ITS VALIDITY, ONE CANNOT FIND ANY FAIR
RELATIONSHIP BETWEEN THE TAX AND ACTUAL ROAD USE OR THE PRIVILEGE OF
SUCH USE.  THE VALUE OF A VEHICLE IS NOT A PRACTICAL FUNCTION OF WHAT
THE STATE AFFORDS.  IT HAS AT BEST A MOST TENUOUS RELATIONSHIP TO THE
PRIVILEGE OF USING THE ROADS, SINCE DIFFERENCES IN VALUE ARE DUE TO A
VEHICLE'S APPOINTMENTS OR ITS AGE OR TO OTHER FACTORS WHICH HAVE NO
BEARING ON HIGHWAY USE.  DIFFERENCES IN THE COST OF VEHICLES BASED ON
SUCH FACTORS, REFLECTING IN LARGE MEASURE THE FINANCIAL CONDITION OF
OWNERS OR THEIR INVESTMENT POLICIES, CAN HARDLY FURNISH A STANDARD BY
WHICH A RETURN FOR ROAD USE MAY BE MEASURED. 

THIS IRRELEVANCE IN THE BASIS OF THE TAX IS REINFORCED BY THE
IRRELEVANCE OF ITS INCIDENCE.  FOR THE TAX IS EXACTED NOT ONLY ON THE
ORIGINAL PURCHASE OF THE VEHICLE BUT UPON ITS SUBSEQUENT TRANSFER TO A
NEW OWNER.  IF THE TAX BE TREATED AS ONE ON THE VEHICLE, THEN IT IS
ATTRIBUTABLE NOT TO THE PRIVILEGE OF ROAD USE BUT TO A SHIFT IN ITS
OWNERSHIP.  IF THE TAX IS DEEMED TO BE UPON THE OWNER, THEN IT DEPENDS
NOT UPON THE PRIVILEGE OF ROAD USE BUT UPON THE FREQUENCY OF TURNOVER
OF HIS EQUIPMENT.  UNLIKE ALL THE COMPARABLE TAXES HERETOFORE
SUSTAINED, THE MARYLAND TAX IS MEASURED BY CONSIDERATIONS EXTRANEOUS TO
THE STATE'S RIGHT TO IMPOSE IT. 

THE COURT IN EFFECT CONCEDES THIS, BUT PROCEEDS ON THE THEORY THAT
THE BASIS OF SUCH A ROAD TAX NEED NOT BE INTRINSICALLY REASONABLE. 
VALIDITY IS TREATED AS A QUESTION OF DOLLARS AND CENTS; ONLY THE AMOUNT
OF THE TAX MAY BE QUESTIONED.  IT SHOULD OCCASION NO SURPRISE THAT SUCH
A TEST BREAKS WHOLLY NEW GROUND.  AMOUNT HAS OF COURSE PLAYED A PART IN
THE TOTAL CONTEXT OF PRIOR DECISIONS AND IT RAISES ISSUES TO WHICH I
SHALL SHORTLY ADVERT.  BUT A TEST OF AMOUNT HAS NEVER BEEN REGARDED AS
IN ITSELF A SUBSTITUTE FOR A REASONABLE TAX CLASSIFICATION.  WHILE
NOVELTY OF DOCTRINE DOES NOT PROVE UNCONSTITUTIONALITY, NEITHER DOES IT
ESTABLISH CONSTITUTIONALITY.  IF NO PRIOR DECISION GIVES ANY WARRANT
FOR DETERMINING THE VALIDITY OF A STATE TAX ON COMMERCE GOING THROUGH
IT MERELY BY THE SIZE OF THE FINANCIAL BURDEN WHICH SUCH A TAX ENTAILS,
THE REASON IS OBVIOUS ENOUGH.  IT WOULD CAST WHAT IS SURELY NOT A
JUDICIAL FUNCTION UPON THIS COURT TO DECIDE HOW BIG AN AMOUNT,
ABSTRACTLY CONSIDERED, CAN ECONOMICALLY BE ABSORBED BY A CARRIER
ENGAGED EXCLUSIVELY IN INTERSTATE COMMERCE AS AN EXACTION BY EACH STATE
THROUGH WHICH THE CARRIER PASSES.  FN3  CONTRARIWISE, IT IS WITHIN THE
COMPETENCE OF JUDGES TO DETERMINE THE FAIR RELEVANCE OF CRITERIA IN
ACHIEVING ALLOWABLE ENDS.  HOW CRITERIA WORK IN SPECIFIC CASES INVOLVES
FAMILIAR PRACTICALITIES IN THE ADMINISTRATION OF LAW. 

NO DOUBT DIFFICULTIES ARE ENCOUNTERED BY THE STATES IN FORMULATING
CLASSIFICATIONS FOR TAX PURPOSES WHICH EXPRESS THE NEEDED ACCOMMODATION
IN OUR FEDERALISM BETWEEN DUE REGARD FOR THE SPECIAL FACILITIES
AFFORDED BY STATES TO INTERSTATE COMMERCE FOR WHICH THEY REQUIRE
COMPENSATION, AND THAT FREEDOM OF COMMERCE ACROSS STATE LINES THE
DESIRE FOR WHICH WAS ONE OF THE PROPELLING FORCES FOR THE ESTABLISHMENT
OF THIS NATION AND THE BENEFITS OF WHICH ARE ONE OF ITS GREATEST
SOURCES OF STRENGTH.  OF COURSE THIS COURT MUST NOT UNDULY REIN IN
STATES.  PRACTICAL, NOT IDEAL, LINES MUST BE DRAWN, WHICH MEANS THAT
WITHIN THE BROADEST REACH OF POLICY RELEVANT TO THE STATES' BASIS OF
TAXATION A WIDE CHOICE MUST BE ALLOWED TO THE STATES OF POSSIBLE TAXES
ON MOTOR VEHICLES TRAVELING IN INTERSTATE COMMERCE.  CLARK V. PAUL
GRAY, INC., 306 U.S. 583.  BUT SIMPLY BECAUSE MANY TAX FORMULAS MAY BE
DEVISED DOES NOT MEAN THAT ANY FORMULA WILL DO.  OF COURSE, THE PROBLEM
INVOLVES MATTERS OF DEGREE.  DRAWING LINES, RECOGNITION OF DIFFERENCES
OF DEGREE, IS PERHAPS THE CHIEF CHARACTERISTIC OF THE PROCESS OF
CONSTITUTIONAL ADJUDICATION.  DIFFICULTIES IN APPLYING THE TEST OF
REASON DO NOT JUSTIFY ABANDONMENT OF REASON FOR THE IMPOSSIBLE TASK OF
DECIDING FISCAL FAIRNESS TO EACH INDIVIDUAL CARRIER. 

II.  SINCE THE BASIS OF ITS IMPOSITION IS FATALLY DEFECTIVE, THE
MARYLAND TAX CANNOT BE SAVED BY ITS AMOUNT.  BUT QUITE APART FROM ITS
FORMULA, THERE ARE SERIOUS QUESTIONS RELATING TO THE AMOUNT OF THIS TAX
WHICH THE COURT DISREGARDS.  THERE IS A SHOW OF FAIRNESS IN THE COURT'S
SUGGESTION THAT THE TAX WILL BE DECLARED BAD IF THE AMOUNT EXACTED
EXCEEDS "FAIR COMPENSATION" TO THE STATES.  THE TERM IS NOT SELF
DEFINING AND NO INTIMATION IS AFFORDED REGARDING THE STANDARDS BY WHICH
EXCESSIVENESS IS TO BE DETERMINED.  REFERENCE IS MADE TO INGELS V.
MORF, 300 U.S. 290.  PRESUMABLY, THEREFORE, THE COURT IS STILL
COMMITTED TO THE VIEW THAT A TAX MAY NOT BE SO HIGH THAT AMOUNTS
COLLECTED BY THE STATE ARE CLEARLY IN EXCESS OF THE COSTS OF THE
SPECIAL FACILITIES OR REGULATIONS FOR WHICH THE TAX IS PROFESSEDLY
LEVIED.  LIKE OTHER FORMS OF INTERSTATE COMMERCE, MOTOR CARRIERS SHOULD
BE REQUIRED TO CONTRIBUTE THEIR FAIR SHARE, BROADLY CONCEIVED, OF THE
STATE'S DISTINCTIVE CONTRIBUTION FOR THE CARRYING ON OF SUCH COMMERCE. 
UNDER THE GUISE OF A SPECIAL COMPENSATORY TAX, HOWEVER, A STATE MAY NOT
EXACT MORE THAN THE VALUE OF THE SERVICES TO BE COMPENSATED.  THERE IS
NO SHOWING THAT THE TAX LEVIED HERE IS EXCESSIVE IN THIS SENSE. 

BUT FOR THE PROPER MAINTENANCE OF OUR FEDERAL SYSTEM, AND MORE
PARTICULARLY FOR THE RIGOROUS SAFEGUARDING OF THE NATIONAL INTERESTS IN
INTERSTATE COMMERCE, IT IS NOT SUFFICIENT THAT A STATE EXACT NO MORE
THAN THE VALUE OF WHAT IT GIVES - WITH ALL THE ELUSIVENESS OF
DETERMINING SUCH VALUE.  A STATE MUST NOT PLAY FAVORITES IN THE
OPERATION OF ITS TAXING SYSTEM BETWEEN BUSINESS CONFINED WITHIN ITS
BORDERS AND THE COMMON INTERESTS OF THE NATION EXPRESSED THROUGH
BUSINESS CONDUCTED ACROSS STATE LINES.  SUCH FAVORITISM IS BARRED
WHETHER IT IS OVERTLY DESIGNED OR RESULTS FROM THE ACTUAL OPERATION OF
A TAXING SCHEME.  THE MARYLAND TAX DOES NOT OBVIOUSLY DISCRIMINATE
AGAINST INTERSTATE COMMERCE.  BUT A TAX FOR THE PRIVILEGE OF ROAD USE
MAY IMPOSE SERIOUS DISADVANTAGES UPON THAT COMMERCE. 

SO LONG AS A STATE BASES ITS TAX ON A RELEVANT MEASURE OF ACTUAL ROAD
USE, OBVIOUSLY BOTH INTERSTATE AND INTRASTATE CARRIERS PAY ACCORDING TO
THE FACILITIES IN FACT PROVIDED BY THE STATE.  BUT A TAX LEVIED FOR THE
PRIVILEGE OF USING ROADS, AND NOT THEIR ACTUAL USE, MAY, IN THE NORMAL
COURSE OF OPERATIONS AND NOT AS A FANCIFUL HYPOTHESIS, INVOLVE AN UNDUE
BURDEN ON INTERSTATE CARRIERS.  WHILE THE PRIVILEGE EXTENDED BY A STATE
IS UNLIMITED IN FORM, AND THUS THEORETICALLY THE SAME FOR ALL VEHICLES,
WHETHER INTERSTATE OR INTRASTATE, THE INTRASTATE VEHICLE CAN AND WILL
EXERCISE THE PRIVILEGE WHENEVER IT IS IN OPERATION, WHILE THE
INTERSTATE VEHICLE MUST NECESSARILY FOREGO THE PRIVILEGE SOME OF THE
TIME SIMPLY BECAUSE OF ITS INTERSTATE CHARACTER, I.E., BECAUSE IT
OPERATES IN OTHER STATES AS WELL.  IN THE GENERAL AVERAGE OF INSTANCES,
THE PRIVILEGE IS NOT AS VALUABLE TO THE INTERSTATE AS TO THE INTRASTATE
CARRIER.  AND BECAUSE IT OPERATES IN OTHER STATES THERE IS DANGER - AND
NOT A FANCIFUL DANGER - THAT THE INTERSTATE CARRIER WILL BE SUBJECT TO
THE PRIVILEGE TAXES OF SEVERAL STATES, EVEN THOUGH HIS ENTIRE USE OF
THE HIGHWAYS IS NOT SIGNIFICANTLY GREATER THAN THAT OF INTRASTATE
OPERATORS WHO ARE SUBJECT TO ONLY ONE PRIVILEGE TAX.  FN4    WHEN A
PRIVILEGE TAX IS RELATIVELY SMALL IN AMOUNT, AND THEREFORE TO BE
TREATED AS A ROUGH EQUIVALENT FOR WHAT THE STATE MAY EXACT WITH DUE
REGARD TO ADMINISTRATIVE PRACTICALITIES, THE DANGER OF AN UNFAIR BURDEN
FALLING UPON INTERSTATE COMMERCE REMAINS CORRESPONDINGLY SMALL.  CF.
UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, 210-11.  BUT A LARGE
PRIVILEGE TAX PRESENTS DANGERS NOT UNLIKE THOSE ARISING FROM
UNAPPORTIONED GROSS RECEIPTS TAXES ON INTERSTATE TRANSPORTATION BEYOND
A STATE'S POWER TO IMPOSE.  CF. CENTRAL GREYHOUND LINES, INC. V.
MEALEY, 334 U.S. 653.  THESE PRACTICAL CONSIDERATIONS PREVAILED AGAINST
A STATE IN SPROUT V. SOUTH BEND, 277 U.S. 163: 

"A FLAT TAX, SUBSTANTIAL IN AMOUNT AND THE SAME FOR BUSSES PLYING THE
STREETS CONTINUOUSLY IN LOCAL SERVICE AND FOR BUSSES MAKING, AS DO MANY
INTERSTATE BUSSES, ONLY A SINGLE TRIP DAILY, COULD HARDLY HAVE BEEN
DESIGNED AS A MEASURE OF THE COST OR VALUE OF THE USE OF THE
HIGHWAYS."  277 U.S. AT 170.  FN5 

THAT THE COURT HAS AT ALL TIMES BEEN AWARE OF THIS PROBLEM IS
DEMONSTRATED BY ITS REITERATION THROUGHOUT THE RELEVANT DECISIONS THAT
THE CHARGE MUST BE "REASONABLE IN AMOUNT."  SEE ESPECIALLY AERO
MAYFLOWER TRANSIT CO. V. GEORGIA COMM'N, 295 U.S. 285, 289:  "THE FEE
IS MODERATE IN AMOUNT," AND AERO MAYFLOWER TRANSIT CO. V. BOARD OF
RAILROAD COMM'RS, 332 U.S. 495, 507:  "  ...  THE AGGREGATE AMOUNT OF
BOTH TAXES COMBINED IS LESS THAN THAT OF TAXES HERETOFORE SUSTAINED." 

THE PROBLEM IS INESCAPABLY ONE OF DETERMINING HOW MUCH IS TOO MUCH,
IN THE TOTAL NATURE OF THE TAX.  THUS, IT BECOMES IMPORTANT TO SEE HOW
THE MARYLAND TAX COMPARES IN AMOUNT WITH SIMILAR TAXES IN PRIOR CASES. 
THIS IS DONE, NOT TO TEST THE TAX AS INDIVIDUALLY APPLIED TO
APPELLANTS, BUT TO DETERMINE WHETHER GENERAL APPLICATION OF A TAX OF
THIS MAGNITUDE MAY FAIRLY BE DEEMED TO BURDEN INTERSTATE COMMERCE
UNDULY.  EXAMINATION OF DECIDED CASES REVEALS THAT THE LARGEST FLAT TAX
HERETOFORE SUSTAINED WAS $15 FOR SIX MONTHS OR $30 PER YEAR, AND THE
LARGEST ANNUAL TAX BASED UPON SIZE OR WEIGHT WAS $75.  FN6  SEE
APPENDIX TO THIS OPINION, POST, P. 561.  THE MARYLAND TAXES ON THE
THREE APPELLANTS AMOUNTED TO $372, $505 AND $580, BUT SINCE THE
MARYLAND TAX IS NOT ANNUAL, THESE AMOUNTS ARE NOT COMPARABLE TO AMOUNTS
PREVIOUSLY SUSTAINED.  IN ORDER TO EQUATE THEM, INFORMATION IS NEEDED
AS TO THE NUMBER OF YEARS TYPICAL MOTOR CARRIERS ARE LIKELY TO OPERATE
SUCH BUSSES OVER MARYLAND ROADS.  EVEN TAKING THE ASSUMPTION OF THE
MARYLAND COURT OF APPEALS, NOT BASED ON ANY EVIDENCE IN THE RECORD,
THAT FIVE YEARS WAS A FAIR ESTIMATE,  FN7  THE AMOUNTS ARE IN EXCESS OF
ANY SUSTAINED BY THIS COURT.  THEREFORE, EVEN IF THE COURT WERE TO
ACCEPT THE FORMULA OF THE MARYLAND TITLING TAX, THE CASE SHOULD BE
REMANDED FOR A FINDING OF THE ANTICIPATED PERIOD OF USE IN ORDER TO
HAVE SOME BASIS OF APPRAISING THE VALIDITY OF THE AMOUNT. 

III.  THE COURT'S FAILURE TO TREAT THE DANGER THAT LARGE PRIVILEGE
TAXES WILL UNDULY BURDEN INTERSTATE COMMERCE - QUITE APART FROM
EXCESSIVENESS IN TERMS OF STATE COSTS - IS NOT UNLIKE ITS EXPLICIT
REJECTION OF THE REQUIREMENT THAT THE TAXING FORMULA BE REASONABLY
RELATED TO THE PURPOSE WHICH ALONE JUSTIFIES THE TAX.  BOTH PROBLEMS
INVOLVE THE RESOLUTION OF CONFLICTING INTERESTS, WHICH IN APPLICATION
INEVITABLY REQUIRES NICE DISTINCTIONS.  IN THIS CASE THE COURT ATTEMPTS
TO AVOID DIFFICULTIES THROUGH WHAT SEEMS TO ME TO BE AN EXERCISE IN
ABSOLUTES.  THESE PROBLEMS INVOLVE QUESTIONS OF REASONABLENESS AND
DEGREE BUT THEIR DETERMINATION AFFECTS THE HARMONIOUS FUNCTIONING OF
OUR FEDERAL SYSTEM.  I DO NOT BELIEVE THEY CAN BE SOLVED BY
DISREGARDING THE NATIONAL INTEREST MERELY BECAUSE A STATE TAX LEVIED IN
A PARTICULAR CASE DOES NOT ON ITS FACE APPEAR MONSTROUS IN AMOUNT.  SEE
HUDSON COUNTY WATER CO. V. MCCARTER, 209 U.S. 349, 355. 

I WOULD REVERSE. 

FN1  THE RELEVANT PORTION OF SEC. 25A READS MORE FULLY AS FOLLOWS: 

"IN ADDITION TO THE CHARGES PRESCRIBED BY THIS ARTICLE THERE IS
HEREBY LEVIED AND IMPOSED AN EXCISE TAX FOR THE ISSUANCE OF EVERY
ORIGINAL CERTIFICATE OF TITLE FOR MOTOR VEHICLES IN THIS STATE AND FOR
THE ISSUANCE OF EVERY SUBSEQUENT CERTIFICATE OF TITLE FOR MOTOR
VEHICLES IN THIS STATE IN THE CASE OF SALES OR RESALES THEREOF, AND ON
AND AFTER JULY 1, 1947, THE DEPARTMENT OF MOTOR VEHICLES SHALL COLLECT
SAID TAX UPON THE ISSUANCE OF EVERY SUCH CERTIFICATE OF TITLE OF A
MOTOR VEHICLE AT THE RATE OF TWO PER CENTUM OF THE FAIR MARKET VALUE OF
EVERY MOTOR VEHICLE FOR WHICH SUCH CERTIFICATE OF TITLE IS APPLIED FOR
AND ISSUED." 

FN2  ALTHOUGH TWO OF THE APPELLANTS ALSO ENGAGE TO SOME EXTENT IN
INTRASTATE TRANSPORTATION, IT WAS NOT ARGUED EITHER HERE OR BELOW THAT
THIS HAS ANY BEARING ON THE CASE.  CF. SPROUT V. SOUTH BEND, 277 U.S.
163, 170-71. 

FN3  THE COURT, TO BE SURE, DOES NOT AVOW THAT THE VALIDITY OF THE
TAX DEPENDS ON THE RELATION OF ITS SIZE TO THE FINANCIAL CONDITION OF
THE CARRIER.  BUT SUCH IS THE EFFECTIVE CONSEQUENCE OF THE
CONSIDERATIONS BY WHICH IT DETERMINES VALIDITY.  ONCE THE COURT
ABANDONS, AS IT DOES, AN INQUIRY INTO THE REASONABLENESS OF THE TAX
BASIS IN RELATION TO THE ALLOWABLE PURPOSES OF THE TAX, THERE IS
NOTHING BY WHICH THE VALIDITY OF THE IMPOSITION CAN BE JUDGED EXCEPT
ITS EFFECT UPON THE FINANCES OF THE CARRIER, UNLESS PERCHANCE THE
MATTER IS TO BE LEFT WHOLLY AT LARGE.  EVEN IN THAT EVENT, THE COURT IS
BOUND TO MAKE AD HOC JUDGMENTS THAT THE PARTICULAR AMOUNT A STATE ASKS
OF A CARRIER IS NOT GOING TO HURT IT. 

FN4  THESE DANGERS ARE HEIGHTENED WHEN THE TAX FALLS UPON AN
INTERSTATE MOTOR CARRIER AUTHORIZED TO OPERATE ONLY ON A FIXED ROUTE. 
QUITE ILLUSTRATIVE OF THE SERIOUSNESS OF THE GENERAL PROBLEM ARE THE
FACTS CONCERNING ONE OF APPELLANTS HERE, CAPITOL GREYHOUND LINES, WHICH
IS AUTHORIZED BY THE I.C.C. TO OPERATE A BUS LINE OVER A FIXED ROUTE
BETWEEN CINCINNATI, OHIO AND WASHINGTON, D.C., A DISTANCE OF ABOUT 496
MILES, ONLY NINE OF WHICH ARE OVER MARYLAND'S STATE ROADS.  TO SAY THAT
CAPITOL HAS AN UNLIMITED PRIVILEGE TO USE MARYLAND'S ROADS AND IS
THEREFORE BEING TREATED ON A PAR WITH INTRASTATE CARRIERS IS TO IGNORE
THE ADMONITION THAT "REGULATION AND COMMERCE AMONG THE STATES BOTH ARE
PRACTICAL RATHER THAN TECHNICAL CONCEPTIONS  ...  "  GALVESTON,
HARRISBURG AND SAN ANTONIO R. CO. V. TEXAS, 210 U.S. 217, 225. 

FN5  MR. JUSTICE BRANDEIS' REFERENCE TO A FLAT TAX WAS NOT INTENDED
TO EXCLUDE SIZE OR WEIGHT TAXES, FOR THE SPROUT CASE INVOLVED A TAX
BASED UPON SEATING CAPACITY.  RATHER, HE WAS REFERRING TO PRIVILEGE, AS
DISTINGUISHED FROM MILEAGE, TAXES. 

THE POTENTIALITY OF UNFAIR BURDENS ON INTERSTATE COMMERCE WAS
PRESENTED SHARPLY IN THE SPROUT CASE SINCE THE TAX WAS LEVIED BY A
MUNICIPALITY AND THERE WERE 33 OTHER CITIES ALONG THE ROUTE OF THE
INTERSTATE CARRIER.  SEE 277 U.S. AT 164. 

FN6  THE STATUTE IN CLARK V. POOR, 274 U.S. 554, PROVIDED FOR A RANGE
OF TAXATION OF FROM $20 TO $200, AND THAT IN HICKLIN V. CONEY, 290 U.S.
169, A RANGE OF FROM $30 TO $400.  BUT IN NEITHER CASE WAS EVIDENCE
INTRODUCED AS TO THE AMOUNTS TO WHICH THE PARTICULAR VEHICLE OWNERS
WOULD BE SUBJECT, AND SO THE COURT WAS NOT FACED WITH THE QUESTION
WHETHER THE AMOUNT WAS REASONABLE.  SEE APPENDIX, N. 3, POST, P. 561. 

FN7  THE MARYLAND COURT ESTIMATED THE "USEFUL LIFE" OF THE BUSSES. 
IT SHOULD HAVE CONSIDERED THE PROBABLE PERIOD OF USE BY A TYPICAL MOTOR
CARRIER SINCE THE TAX IS IMPOSED UPON ANY TRANSFER OF THE VEHICLE TO
ANOTHER. 

                   APPENDIX

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..END :




















LABOR BOARD V. MEXIA TEXTILE MILLS, 339 U.S. 563 


NO. 434.  ARGUED APRIL 18, 1950.  - DECIDED MAY 15, 1950.  - ORDER
VACATED. 


AFTER A HEARING FROM WHICH THE EMPLOYER WITHDREW WITHOUT INTRODUCING
ANY EVIDENCE, THE NATIONAL LABOR RELATIONS BOARD ISSUED AN ORDER
REQUIRING THE EMPLOYER, WHO WAS ENGAGED IN INTERSTATE COMMERCE WITHIN
THE MEANING OF THE NATIONAL LABOR RELATIONS ACT, TO CEASE AND DESIST
FROM CERTAIN UNFAIR LABOR PRACTICES.  SUBSEQUENTLY, THE BOARD
PETITIONED THE COURT OF APPEALS FOR ENFORCEMENT OF THIS ORDER.  THE
EMPLOYER MOVED FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE, ALLEGING IN
SUBSTANCE THAT IT HAD COMPLIED WITH THE ORDER AND THAT THE UNION WHICH
HAD BEEN CERTIFIED BY THE BOARD AS BARGAINING REPRESENTATIVE NO LONGER
REPRESENTED A MAJORITY OF THE EMPLOYEES IN THE BARGAINING UNIT.  THE
COURT OF APPEALS ORDERED THE CASE REFERRED BACK TO THE BOARD WITH
DIRECTIONS TO TAKE EVIDENCE AND REPORT WHETHER THE ORDER HAD BEEN
COMPLIED WITH; IF SO, WHETHER THE MATTER SHOULD NOT BE DISMISSED AS
MOOT; AND, IF NOT, WHAT RECOMMENDATIONS THE BOARD HAD TO MAKE.  HELD:
THE ORDER OF THE COURT OF APPEALS IS VACATED AND ENFORCEMENT OF THE
BOARD'S ORDER MUST BE DECREED UNDER SEC. 10(E), UNLESS "EXTRAORDINARY
CIRCUMSTANCES" ARE PLEADED WHICH JUSTIFY THE EMPLOYER'S FAILURE TO URGE
ITS OBJECTIONS BEFORE THE BOARD.  PP. 564-570. 

(A)  AN EMPLOYER'S COMPLIANCE WITH AN ORDER OF THE BOARD DOES NOT
RENDER THE CAUSE MOOT NOR DEPRIVE THE BOARD OF ITS OPPORTUNITY TO
SECURE ENFORCEMENT FROM AN APPROPRIATE COURT, SINCE A BOARD ORDER
IMPOSES A CONTINUING OBLIGATION AND THE BOARD IS ENTITLED TO HAVE A
RESUMPTION OF THE UNFAIR PRACTICE BARRED BY AN ENFORCEMENT DECREE.  PP.
567-568. 

(B)  THAT THE EMPLOYER DOUBTS THE CERTIFIED UNION'S ABILITY TO MUSTER
A MAJORITY OF THE EMPLOYEES IN THE BARGAINING UNIT DOES NOT JUSTIFY
DENIAL OF AN ENFORCEMENT DECREE.  P. 568. 

(C)  ALTHOUGH A MOTION FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE
PURSUANT TO SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT IS
"ADDRESSED TO THE SOUND JUDICIAL DISCRETION OF THE COURT," THE POWER OF
THE COURT TO ORDER THE TAKING OF ADDITIONAL EVIDENCE CANNOT BE EMPLOYED
TO ENLARGE THE STATUTORY SCOPE OF JUDICIAL REVIEW.  PP. 569-570. 

NATIONAL LABOR RELATIONS BOARD V. MEXIA TEXTILE MILLS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE CASE IS STATED IN THE OPINION.  THE OPINION OF THE COURT OF
APPEALS IS REPORTED IN 25 L.R.R.M. 2295.  THE ORDER OF THE COURT OF
APPEALS IS VACATED, P. 570. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING BROUGHT BY THE NATIONAL LABOR RELATIONS BOARD
CHARGING UNFAIR LABOR PRACTICES OF THE RESPONDENT, MEXIA TEXTILE MILLS,
A MANUFACTURER OF COTTON GOODS AT MEXIA, TEXAS, ENGAGED IN INTERSTATE
COMMERCE WITHIN THE MEANING OF THE NATIONAL LABOR RELATIONS ACT  FN1
AND THE LABOR MANAGEMENT RELATIONS ACT, 1947.  FN2  ON THE BOARD'S
PETITION FOR ENFORCEMENT OF ITS CEASE AND DESIST ORDER, THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT REFERRED THE CASE BACK TO THE BOARD WITH
DIRECTIONS TO TAKE EVIDENCE AND REPORT WHETHER THE ORDER HAD BEEN
COMPLIED WITH BY THE RESPONDENT; IF SO, WHETHER THE MATTER SHOULD NOT
BE DISMISSED AS MOOT; AND, IF NOT, WHAT RECOMMENDATIONS THE BOARD HAD
TO MAKE.  WE GRANTED CERTIORARI UPON THE CLAIM THAT THE EFFECT OF THE
ORDER OF THE COURT OF APPEALS WAS AT VARIANCE WITH PREVIOUS DECISIONS
OF THIS COURT.  338 U.S. 909(1950). 

THE PERTINENT FACTS ARE THESE.  IN NOVEMBER 1944, THE BOARD CONDUCTED
AN ELECTION AT THE RESPONDENT'S PLANT, IN WHICH THE TEXTILE WORKERS
UNION OF AMERICA, C.I.O., RECEIVED AN OVERWHELMING MAJORITY.  FN3  THE
BOARD THEREUPON CERTIFIED THAT UNION AS THE EXCLUSIVE REPRESENTATIVE OF
THOSE PRODUCTION AND MAINTENANCE EMPLOYEES WHO CONSTITUTED THE
APPROPRIATE BARGAINING UNIT DESIGNATED BY THE BOARD.  IN JANUARY 1947
THE UNION FILED A CHARGE WITH THE BOARD COMPLAINING THAT RESPONDENT HAD
REFUSED TO BARGAIN COLLECTIVELY IN GOOD FAITH WITH THE UNION AND WAS
THUS GUILTY OF UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SECS. 8(1)
AND 8(5) OF THE NATIONAL LABOR RELATIONS ACT.  THE BOARD ISSUED ITS
COMPLAINT PURSUANT TO THOSE CHARGES IN JUNE 1947.  RESPONDENT, IN
ANSWER, ADMITTED THAT IT WAS ENGAGED IN INTERSTATE COMMERCE WITHIN THE
MEANING OF THE ACT, DENIED THE CHARGES CONTAINED IN THE COMPLAINT, AND
ALLEGED, INTER ALIA, THAT THE UNION NO LONGER REPRESENTED A MAJORITY OF
EMPLOYEES IN THE BARGAINING UNIT, THOUGH THE NUMBER OF EMPLOYEES WHO
HAD WITHDRAWN WAS UNKNOWN TO RESPONDENT.  A HEARING WAS HELD BEFORE A
TRIAL EXAMINER IN AUGUST 1947.  THE TRIAL EXAMINER DENIED RESPONDENT'S
MOTIONS FOR A MORE DEFINITE STATEMENT OF THE COMPLAINT, AND FOR AN
ORDER PERMITTING THE INSPECTION AND COPYING OF CERTAIN EVIDENCE. 
RESPONDENT'S COUNSEL THEREUPON WITHDREW FROM THE HEARING AND TOOK NO
FURTHER PART THEREIN. 

IN DECEMBER 1947 THE TRIAL EXAMINER ISSUED HIS REPORT.  HE CONCLUDED
THAT "FROM THE EVIDENCE, IT IS APPARENT THAT, ALTHOUGH THE RESPONDENT
CONFERRED WITH THE UNION ON POSSIBLE CONTRACT PROVISIONS, IT DID NOT
BARGAIN IN GOOD FAITH AND HAD NO INTENTION OF DOING SO."  THE FAILURE
TO BARGAIN WAS MANIFEST FROM EVIDENCE OF INCIDENTS TAKING PLACE FROM
THE TIME OF THE CERTIFICATION OF THE UNION UNTIL A MONTH BEFORE ITS
COMPLAINT WAS FILED.  UNILATERAL WAGE INCREASES AND RESPONDENT'S
EFFORTS TO SHUNT THE UNION REPRESENTATIVES FROM ONE COMPANY OFFICIAL TO
ANOTHER IN SEARCH OF THE FINAL AUTHORITY IN WAGE AND CONTRACT
NEGOTIATIONS - THESE AND OTHER FINDINGS LED THE EXAMINER TO CONCLUDE
THAT "AN UNMISTAKEABLE EFFORT TO ESCAPE GENUINE COLLECTIVE BARGAINING"
WAS DEMONSTRATED.  FURTHER, THE EXAMINER DETERMINED, THERE WAS NO MERIT
IN THE RESPONDENT'S CONTENTION THAT THE UNION DID NOT RETAIN THE
MEMBERSHIP OF A MAJORITY OF EMPLOYEES IN THE BARGAINING UNIT. 
RESPONDENT, HAVING TAKEN NO PART IN THE HEARING, DID NOT OF COURSE
INTRODUCE ANY EVIDENCE TO SUPPORT ITS ALLEGATION. 

THE EXAMINER RECOMMENDED, IN SUBSTANCE, THAT RESPONDENT BE ORDERED TO
CEASE AND DESIST FROM ITS REFUSAL TO BARGAIN IN GOOD FAITH WITH THE
UNION.  NO EXCEPTIONS TO THE REPORT WERE FILED WITHIN THE TIME
PERMITTED BY SEC. 10(C) OF THE LABOR MANAGEMENT RELATIONS ACT, AND IN
JULY 1948 THE BOARD ADOPTED THE TRIAL EXAMINER'S FINDINGS AND ISSUED
THE RECOMMENDED ORDER, AS REQUIRED BY SEC. 10(C). 

IN APRIL 1949 THE BOARD PETITIONED THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT FOR ENFORCEMENT OF ITS ORDER.  RESPONDENT FILED A MOTION FOR
THE TAKING OF ADDITIONAL EVIDENCE, ALLEGING THAT SINCE THE REPORT OF
THE TRIAL EXAMINER, "DURING THE YEAR 1948," IT HAD "ENTERED INTO GOOD
FAITH BARGAINING WITH THE UNION," BUT THAT AN AGREEMENT HAD BEEN
PREVENTED BY THE UNION'S "ARBITRARY, CAPRICIOUS AND INTRANSIGENT
ATTITUDE  ...  "  A COPY OF A LETTER RESPONDENT HAD SENT TO THE BOARD'S
REGIONAL DIRECTOR, SHORTLY AFTER THE TRIAL EXAMINER'S REPORT, WAS
ATTACHED TO RESPONDENT'S MOTION.  THE LETTER STATED THAT WHILE
RESPONDENT "DID NOT SEE FIT TO ARGUE" ABOUT PAST "DISAGREEMENTS AND
STRIKES" BEFORE THE TRIAL EXAMINER, IT WAS THEN "MORE THAN WILLING TO
ACCEPT (HIS) RECOMMENDATIONS  ...  "  RESPONDENT ALSO ALLEGED THAT
AFTER "THE RECORD IN THE INSTANT CASE WAS CLOSED" IT HAD COME TO THE
CONCLUSION THAT THE UNION NO LONGER REPRESENTED A MAJORITY OF EMPLOYEES
IN THE BARGAINING UNIT. 

ON JUNE 3, 1949, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT ORDERED
THAT 

"ACTION ON PETITIONER'S MOTION SHOULD BE DEFERRED AND THE MATTER BE
REFERRED BACK TO THE BOARD WITH DIRECTIONS TO TAKE EVIDENCE AND REPORT:
(1) WHETHER AND TO WHAT EXTENT ITS ORDER HAS BEEN COMPLIED WITH BY
RESPONDENT; (2) WHETHER AND WHY, IF THE ORDER HAS BEEN COMPLIED WITH,
THE MATTER SHOULD NOT BE DISMISSED AS MOOT; AND (3) IF THE MATTER IS
NOT MOOT, WHAT RECOMMENDATIONS OR REQUESTS THE BOARD HAS TO MAKE IN THE
PREMISES  ...  " 

WE THINK IT PLAIN FROM THE CASES THAT THE EMPLOYER'S COMPLIANCE WITH
AN ORDER OF THE BOARD DOES NOT RENDER THE CAUSE MOOT, DEPRIVING THE
BOARD OF ITS OPPORTUNITY TO SECURE ENFORCEMENT FROM AN APPROPRIATE
COURT.  FN4  INDEED, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS
APPARENTLY RECOGNIZED THIS RULE BOTH BEFORE AND AFTER THE DECISION IN
THE INSTANT CASES.  FN5  A BOARD ORDER IMPOSES A CONTINUING OBLIGATION;
AND THE BOARD IS ENTITLED TO HAVE THE RESUMPTION OF THE UNFAIR PRACTICE
BARRED BY AN ENFORCEMENT DECREE.  AS THE COURT OF APPEALS FOR THE
SECOND CIRCUIT REMARKED, "NO MORE IS INVOLVED THAN WHETHER WHAT THE LAW
ALREADY CONDEMNED, THE COURT SHALL FORBID; AND THE FACT THAT ITS
JUDGMENT ADDS TO EXISTING SANCTIONS THAT OF PUNISHMENT FOR CONTEMPT, IS
NOT A CIRCUMSTANCE TO WHICH A COURT WILL ORDINARILY LEND A FRIENDLY
EAR."  LABOR BOARD V. GENERAL MOTORS CORP., 179 F.2D 221, 222(1950). 
THE ACT DOES NOT REQUIRE THE BOARD TO PLAY HIDE-AND-SEEK WITH THOSE
GUILTY OF UNFAIR LABOR PRACTICES. 

THAT THE RESPONDENT DOUBTS THE UNION'S ABILITY TO MUSTER A MAJORITY
OF THE EMPLOYEES IN THE BARGAINING UNIT DOES NOT JUSTIFY THE DENIAL OF
AN ENFORCEMENT DECREE.  EXPLICIT CONGRESSIONAL POLICY STANDS IN THE WAY
OF PERMITTING THE EMPLOYERS TO STALL ENFORCEMENT OF THE BOARD'S ORDERS
ON THIS GROUND.  UNDER SEC. 9(C) OF THE ACT "AN EMPLOYEE OR GROUP OF
EMPLOYEES OR ANY INDIVIDUAL OR LABOR ORGANIZATION ACTING IN THEIR
BEHALF" MAY "ASSERT THAT THE INDIVIDUAL OR LABOR ORGANIZATION, WHICH
HAS BEEN CERTIFIED OR IS BEING CURRENTLY RECOGNIZED BY THEIR EMPLOYER
AS THE BARGAINING REPRESENTATIVE, IS NO LONGER A REPRESENTATIVE AS
DEFINED IN SECTION 9(A)  ...  " SEC. 9(C)(1)(A)(II).  PETITIONS BY THE
EMPLOYER CONCERNING SELECTION OF BARGAINING REPRESENTATIVES ARE LIMITED
TO THOSE "ALLEGING THAT ONE OR MORE INDIVIDUALS OR LABOR ORGANIZATIONS
HAVE PRESENTED TO HIM A CLAIM TO BE RECOGNIZED AS THE REPRESENTATIVE
DEFINED IN SECTION 9(A)  ...  " SEC. 9(C)(1)(B).  TO AUTHORIZE THE
EMPLOYER TO ASSERT DIMINUTION IN MEMBERSHIP IN THE CERTIFIED UNION IN
AN ENFORCEMENT PROCEEDING SUBVERTS THE STATUTORY MANDATE TO LEAVE THESE
MATTERS TO THE BOARD IN SEPARATE PROCEEDINGS UNDER SEC. 9(C).  FN6 

IT IS OF COURSE EQUALLY CLEAR THAT A MOTION FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE PURSUANT TO SEC. 10(E) OF THE LABOR RELATIONS ACTS
IS "ADDRESSED TO THE SOUND JUDICIAL DISCRETION OF THE COURT," SOUTHPORT
PETROLEUM CO. V. LABOR BOARD, 315 U.S. 100, 104(1942); LABOR BOARD V.
INDIANA & MICHIGAN ELECTRIC CO., 318 U.S. 9(1943).  WE ARE TOLD THAT
THE ORDER OF THE COURT OF APPEALS IS JUSTIFIED IN THIS CASE BECAUSE THE
ISSUE OF COMPLIANCE, SO CLEARLY IRRELEVANT IN THE ORDINARY COURSE OF
REVIEW, IS IMBUED WITH RELEVANCE SHOULD THE RESPONDENT'S COUNSEL MOVE
TO ADDUCE ADDITIONAL EVIDENCE WHEN THE CASE REACHES THE COURT OF
APPEALS. 

THE CASES ARE TO THE CONTRARY.  LABOR BOARD V. CONDENSER CORP., 128
F.2D 67, 81(C.A. 3D CIR. 1942); LABOR BOARD V. SWIFT & CO., 129 F.2D
222, 224(C.A.8TH CIR. 1942); LABOR BOARD V. AMERICAN POTASH & CHEMICAL
CORP., 98 F.2D 488, 493(C.A.9TH CIR. 1938), AND CASES THEREIN CITED. 
IF COMPLIANCE WITH AN ORDER OF THE BOARD IS IRRELEVANT TO THE REVIEWING
COURT'S FUNCTION AFTER THE NEW EVIDENCE HAS BEEN ADDUCED, WE DO NOT SEE
THAT THERE IS POINT IN ADDUCING EVIDENCE OF THAT COMPLIANCE.  THIS
COURT HAS EMPHASIZED THAT THE "POWER TO ADDUCE ADDITIONAL EVIDENCE
GRANTED TO THE CIRCUIT COURT OF APPEALS BY SEC. 10(E) CANNOT BE
EMPLOYED TO ENLARGE THE STATUTORY SCOPE OF JUDICIAL REVIEW."  LABOR
BOARD V. DONNELLY GARMENT CO., 330 U.S. 219, 234-235(1947).  AS THE
MANAGERS ON THE PART OF THE HOUSE OF REPRESENTATIVES FOR THE CONFERENCE
COMMITTEE REPORTED CONCERNING THE WAGNER ACT, THAT STATUTE CONTEMPLATED
THAT THERE BE "IMMEDIATELY AVAILABLE TO THE BOARD AN EXISTING COURT
DECREE TO SERVE AS A BASIS FOR CONTEMPT PROCEEDINGS," IN THE EVENT A
RENEWAL OF THE UNFAIR PRACTICE OCCURS AFTER THE ENFORCEMENT ORDER. 
H.R. REP. NO. 1371, 74TH CONG., 1ST SESS., P. 5.  SEE ALSO H.R. CONF.
REP. NO. 510, ON H.R. 3020, 80TH CONG., 1ST SESS., P. 55; COMPARE H.R.
REP. NO. 245, ON H.R. 3020, 80TH CONG., 1ST SESS., PP. 43, 93.  SECTION
10(E), WHICH "IN EFFECT FORMULATES A FAMILIAR PRINCIPLE REGARDING NEWLY
DISCOVERED EVIDENCE," LABOR BOARD V. DONNELLY GARMENT CO., SUPRA, 330
U.S. AT 234, DOES NOT AUTHORIZE A DISCRETION SO BROAD THAT EVIDENCE
IRRELEVANT AS A MATTER OF LAW MAY BE CONSIDERED "MATERIAL."  COMPARE
GRIFFIN V. UNITED STATES, 336 U.S. 704, 708(1949), WITH UNITED STATES
V. JOHNSON, 327 U.S. 106(1946). 

THE CASES CITED BY RESPONDENT DO NOT TOUCH THIS CONTROLLING ISSUE. 
THE ORDER OF THE COURT OF APPEALS MUST BE VACATED AND THE ENFORCEMENT
OF THE BOARD ORDER DECREED PURSUANT TO SEC. 10(E), UNLESS
"EXTRAORDINARY CIRCUMSTANCES" ARE PLEADED WHICH JUSTIFY THE
RESPONDENT'S FAILURE TO URGE ITS OBJECTIONS BEFORE THE BOARD.  IT IS SO
ORDERED. 

FN1  49 STAT. 449, 29 U.S.C. SEC. 151 ET SEQ. 

FN2  61 STAT. 136, 29 U.S.C. (SUPP. III) SEC. 141 ET SEQ. 

FN3  146 OF THE 164 VALID VOTES WERE CAST IN FAVOR OF THE UNION, OF
THE APPROXIMATELY 186 ELIGIBLE VOTERS. 

FN4  LABOR BOARD V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261,
271(1938); CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197,
230(1938); LABOR BOARD V. CROMPTON-HIGHLAND MILLS, 337 U.S. 217,
225(1949); LABOR BOARD V. DRAPER CORP., 159 F.2D 294, 297(C.A. 1ST CIR.
1947); LABOR BOARD V. REMINGTON RAND, 94 F.2D 862, 869-870(C.A.2D CIR.
1938); LABOR BOARD V. CONDENSER CORP., 128 F.2D 67, 81(C.A. 3D CIR.
1942); LABOR BOARD V. BALTIMORE TRANSIT CO., 140 F.2D 51, 55(C.A.4TH
CIR. 1944); LABOR BOARD V. TOLEDO DESK & FIXTURE CO., 158 F.2D
426(C.A.6TH CIR. 1946); LABOR BOARD V. BACHELDER, 125 F.2D 387,
388(C.A.7TH CIR. 1942); LABOR BOARD V. SWIFT & CO., 129 F.2D 222,
224(C.A.8TH CIR. 1942); LABOR BOARD V. AMERICAN POTASH & CHEMICAL
CORP., 98 F.2D 488(C.A.9TH CIR. 1938); PUEBLO GAS & FUEL CO. V. LABOR
BOARD, 118 F.2D 304, 307(C.A. 10TH CIR. 1941).  CF. FEDERAL TRADE
COMMISSION V. GOODYEAR TIRE & RUBBER CO., 304 U.S. 257(1938). 

FN5  LABOR BOARD V. FICKETT-BROWN MFG. CO., 140 F.2D 883, 884(1944);
LABOR BOARD V. THE COOPER CO., 179 F.2D 241(1950). 

FN6  SEE LABOR BOARD V. REMINGTON RAND, 94 F.2D 862, 869-870(C.A.2D
CIR. 1938).  SEE ALSO, SECS. 203.46, 203.47 OF THE BOARD'S REGULATIONS
UNDER THE WAGNER ACT, 11 FED. REG. 177A-605, 177A-610(1946), AND SECS.
203.52 AND 203.53 OF THE RULES PRINTED AT 12 FED. REG. 5651,
5662(1947); LABOR BOARD V. BILES-COLEMAN LUMBER CO., 96 F.2D
197(C.A.9TH CIR. 1938).  COMPARE FRANKS BROS. CO. V. LABOR BOARD, 321
U.S. 702, 705-706(1944). 

THE BOARD HAS HELD THAT IT IS THE FORUM BEFORE WHICH AN EMPLOYER MAY
CHALLENGE A CERTIFIED UNION'S CONTINUED REPRESENTATIVE STATUS, MATTER
OF WHITNEY'S, 81 N.L.R.B. 75(1949), IN SEC. 9(C) PROCEEDINGS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, DISSENTING
$*. 

$*  (NOTE:  THIS DISSENT APPLIES ALSO TO NO. 435, NATIONAL LABOR
RELATIONS BOARD V. POOL MANUFACTURING CO., POST, P. 577.) 

COMPLIANCE WITH AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD IS, OF
COURSE, NO DEFENSE TO THE BOARD'S PETITION FOR JUDICIAL ENFORCEMENT OF
ITS ORDER.  THEREFORE, A COURT OF APPEALS WOULD BE ABUSING THE
AUTHORITY CONFERRED BY SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT,
AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947* , IF, UPON SUCH
A PETITION FOR ENFORCEMENT, IT EVEN TEMPORARILY WITHHELD ENFORCEMENT
MERELY FOR THE PURPOSE OF ASKING THE BOARD TO REPORT TO IT WHETHER THE
ORDER HAD ALREADY BEEN COMPLIED WITH.  EVEN IF IT HAD, THE BOARD IS
ENTITLED TO A FORMAL DECREE AS A SAFEGUARD AGAINST REPETITION OF THE
UNFAIR LABOR PRACTICE.  IF IN THE CASES BEFORE US THE COURT OF APPEALS
HAD, BY SEEKING LIGHT FROM THE BOARD ON THE ISSUE OF COMPLIANCE, IN
EFFECT RULED THAT COMPLIANCE WITH AN ORDER OF THE BOARD WAS RELEVANT TO
ENFORCEMENT, IT WOULD BE INCUMBENT UPON THIS COURT, IN THE FAIR
ADMINISTRATION OF LAW, TO ISSUE ITS DISCRETIONARY WRIT OF CERTIORARI
AND REVERSE THE ORDERS OF THE COURT OF APPEALS SUMMARILY.    *SECTION
10(E) PROVIDES IN PART: 

"IF EITHER PARTY SHALL APPLY TO THE COURT FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE AND SHALL SHOW TO THE SATISFACTION OF THE COURT
THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR THE FAILURE TO ADDUCE SUCH EVIDENCE IN THE
HEARING BEFORE THE BOARD, ITS MEMBER, AGENT, OR AGENCY, THE COURT MAY
ORDER SUCH ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE BOARD, ITS
MEMBERS, AGENT, OR AGENCY, AND TO BE MADE A PART OF THE TRANSCRIPT." 
61 STAT. 148, 29 U.S.C. (SUPP. III) SEC. 160(E). 

BUT THE ACTION OF THE COURT OF APPEALS IN THESE TWO CASES CANNOT
FAIRLY BE INTERPRETED AS DEFIANCE OF THE SETTLED PRINCIPLE OF LAW THAT
COMPLIANCE BY AN EMPLOYER WITH THE BOARD'S ORDER IS NOT A DEFENSE TO AN
APPLICATION FOR ITS ENFORCEMENT.  IN A SERIES OF DECISIONS PRIOR TO ITS
ACTIONS IN THESE TWO CASES, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT,
IN COMMON WITH ALL OTHER CIRCUITS, HAS ENFORCED ORDERS OF THE BOARD
DESPITE ALLEGATIONS OF COMPLIANCE.  NOR ARE THESE TWO CASES TO BE
INTERPRETED AS DEPARTURES FROM THE PRINCIPLE WHICH THAT COURT HAS
HERETOFORE RECOGNIZED AND OBEYED.  IT HAS EXPLICITLY ADVISED US THAT
THE OPINIONS AND ORDERS IN THESE TWO CASES "WERE NOT INTENDED TO BE,
THEY WERE NOT, DEPARTURES" FROM THE ESTABLISHED RULE.  LABOR BOARD V.
COOPER CO., 179 F.2D 241.  WHATEVER JUSTIFICATION THERE MAY HAVE BEEN
WHEN WE GRANTED CERTIORARI FOR ATTRIBUTING TO THE COURT BELOW A VOLTE
FACE ON ITS OWN REPEATED APPLICATION OF A SETTLED PRINCIPLE OF LAW,
THERE WAS NONE AFTER ITS DECISION IN THE COOPER CASE TEN DAYS LATER. 
YET IT IS ONLY BY ATTRIBUTING TO THE COURT OF APPEALS A DEPARTURE WHICH
THAT COURT HAS DISAVOWED THAT IT MAY BE CHARGED WITH AN ABUSE OF
DISCRETION WHICH ALONE WOULD HAVE WARRANTED OUR TAKING THESE CASES FOR
REVIEW. 

THE FACT IS THAT IN BOTH THESE CASES REPRESENTATIONS WERE MADE TO THE
COURT OF APPEALS OF CIRCUMSTANCES ARISING SUBSEQUENT TO THE ORDERS
ISSUED BY THE BOARD WHICH AMOUNT TO MORE THAN A CLAIM THAT THE EMPLOYER
HAD COMPLIED WITH WHAT THE BOARD HAD DIRECTED.  THE CLAIMS CONCERN
CHANGE IN THE UNION AFFILIATION OF EMPLOYEES AND RECALCITRANCE ON THE
PART OF THE UNION, AND NOT OF THE EMPLOYER, TOWARD EFFECTUATING THE
BOARD'S ORDER.  TO BE SURE, THERE WAS A CLAUSE IN THE COURT'S ORDER
WHICH, TAKEN ABSTRACTLY, LOOKED AS THOUGH THE COURT DESIRED TO BE
INFORMED ON THE ISSUE OF COMPLIANCE AND THE COURT OF APPEALS DID NOT
SPELL OUT WITH PARTICULARITY THESE OTHER CLAIMS, BUT THEY WERE EMBRACED
IN A CATCH-ALL CLAUSE FOR FURTHER "EVIDENCE AND REPORT" BY THE BOARD. 

THIS RAISES FOR ME IMPORTANT ISSUES OF JUDICIAL ADMINISTRATION.  DUE
REGARD FOR THE CONSIDERATIONS THAT SHOULD GOVERN THE EXERCISE OF OUR
DISCRETIONARY JURISDICTION AND FOR THE EFFECTIVE FUNCTIONING OF THE
COURTS OF APPEALS IN THE WHOLE SCHEME OF THE FEDERAL JUDICIARY
INDICATES DISMISSAL OF THESE WRITS. 

WE ARE DEALING WITH ONE OF THE APPELLATE TRIBUNALS OF THE UNITED
STATES TO WHICH CONGRESS HAS SEEN FIT TO COMMIT THE FINAL DETERMINATION
OF THIS TYPE OF CONTROVERSY, SUBJECT ONLY TO THE REVIEWING POWER OF
THIS COURT.  REVIEW IS TO BE EXERCISED, HOWEVER, NOT AS A MATTER OF
COURSE, BUT ONLY IN THOSE RARE INSTANCES WHERE CONSTITUTIONAL ISSUES,
OR CONFLICTS OF CIRCUITS, OR OBVIOUS CONSIDERATIONS OF A PUBLIC
IMPORTANCE CALL FOR OUR ADJUDICATION.  IN ESTABLISHING THE COURTS OF
APPEALS, CONGRESS INTENDED TO CREATE COURTS OF GREAT DIGNITY AND
ABILITY WHOSE DECISIONS WERE TO BE FINAL EXCEPT IN THE VERY LIMITED
INSTANCES WHERE THE SUPREME BENCH SHOULD PRONOUNCE FOR THE WHOLE
NATION.  THIS DESIGN FOR THE COURTS OF APPEALS WAS POWERFULLY
REINFORCED BY THE JUDICIARY ACT OF 1925, 43 STAT. 936, IN THAT IT
WITHDREW ALL BUT A FEW CATEGORIES OF CASES FROM THE OBLIGATORY
JURISDICTION OF THIS COURT.  THE VOLUME OF BUSINESS THAT WOULD BE DRAWN
TO THIS COURT BY THE OVERRIDING NATIONAL IMPORTANCE OF THE ISSUES WAS
BOUND TO BE SO HEAVY THAT ADEQUATE DISPOSITION OF THEM WAS ASSUMED TO
PRECLUDE THE GRANT OF CERTIORARI IN CASES, HOWEVER ERRONEOUSLY DECIDED
BELOW, IN WHICH THE INCIDENCE OF ERROR WAS TOO SMALL COMPARED WITH THE
DRAIN THAT THEIR CONSIDERATION WOULD MAKE ON THE THOUGHT AND ENERGY
DEMANDED OF THIS COURT BY THE CASES WHICH INEVITABLY BELONG HERE.  AND
SO THE COURT HAS SAID AGAIN AND AGAIN THAT THE WRIT OF CERTIORARI OUGHT
NOT TO BE EMPLOYED TO BRING HERE CASES WHICH, IN THEIR ESSENTIAL
IMPACT, CONCERN A RESTRICTED AND PERHAPS A UNIQUE SET OF CIRCUMSTANCES
AND DO NOT INVOLVE THE PRONOUNCEMENT BY A COURT OF APPEALS OF A GENERAL
DOCTRINE ON WHICH THIS COURT OUGHT TO HAVE THE LAST SAY. 

NO CANDID STUDENT OF THE ACTUAL OPERATION OF CERTIORARI CAN FEEL
CONFIDENT THAT THE CRITERIA PROFESSED FOR ITS EXERCISE HAVE BEEN
ADEQUATELY RESPECTED.  THIS COURT IS TOO FREQUENTLY ENGAGED IN DECIDING
CASES WHICH OUGHT NOT TO OCCUPY THE HIGHEST COURT IN THE LAND, BECAUSE
THEY DIVERT ITS ENERGY FROM THOSE MATTERS TO WHICH IT CANNOT GIVE TOO
MUCH UNBURDENED THOUGHT.  AND WHEN COMPARISON IS MADE BETWEEN THE
ISSUES AT STAKE IN PETITIONS THAT HAVE BEEN GRANTED AND THOSE IN WHICH
PETITIONS HAVE BEEN DENIED, THE CONTRAST IS AT TIMES GLARING. 

THIS HAS TWO CONSEQUENCES THAT ARE TO BE DEPRECATED IN THE
ADMINISTRATION OF THE FEDERAL COURTS, AND THEY ARE AVOIDABLE WITHOUT
AIMING AT THE MOON.  BY TAKING CASES THAT OUGHT NOT TO BE TAKEN WE
OBVIOUSLY ENCOURAGE PETITIONS TO BE FILED THAT HAVE NO EXCUSE FOR BEING
HERE.  THE FACT THAT TERM AFTER TERM HUNDREDS OF PETITIONS ARE DENIED
INDICATES THAT OUR SCREENING PROCESS IS SUCH AS TO ENCOURAGE THE HOPE
THAT IS ETERNAL IN THE BREAST OF LOSING COUNSEL.  ONE DOES NOT HAVE TO
BE AN EASY GENERALIZER OF NATIONAL CHARACTERISTICS TO BELIEVE THAT
LITIGIOUSNESS IS ONE OF OUR BESETTING SINS.  A RELAXED OBSERVANCE OF
THE CONSIDERATIONS THAT SUPPOSEDLY GOVERN OUR CERTIORARI JURISDICTION
IS NOT CALCULATED TO DISCOURAGE LITIGIOUSNESS. 

EQUALLY UNDESIRABLE IS THE EFFECT, HOWEVER INSIDIOUS, UPON COURTS OF
APPEALS.  IF, BARRING ONLY EXCEPTIONAL CASES, THEY ARE TO BE DEEMED
FINAL COURTS OF APPEALS, CONSCIOUSNESS OF SUCH RESPONSIBILITY WILL
ELICIT IN THEM, ASSUMING THEY ARE MANNED BY JUDGES FIT FOR THEIR TASKS,
THE QUALITIES APPROPRIATE FOR SUCH RESPONSIBILITY.  CONTRARIWISE,
ENCOURAGEMENT IN REGARDING COURTS OF APPEALS MERELY AS WAY-STATIONS TO
THIS COURT IS BOUND TO HAVE A WEAKENING EFFECT ON THE ADMINISTRATION OF
TRIBUNALS WHOSE AUTHORITY AND QUALITIES WE SHOULD BE ALERT TO PROMOTE. 

THESE ARE GENERAL CONSIDERATIONS, BUT DUE REGARD FOR THEM GOES, I
BELIEVE, TO THE VERY MARROW OF HIGH JUDICIAL PERFORMANCE.  LET ME APPLY
THEM TO THE CASES IN HAND.  A YEAR AGO THREE CIRCUIT JUDGES OF LONG
EXPERIENCE DEFERRED MOTIONS OF THE NATIONAL LABOR RELATIONS BOARD FOR
ENFORCEMENT OF ITS ORDERS (ONE OF WHICH HAD BEEN OUTSTANDING FOR TWO
AND ONE-HALF YEARS) BY REQUESTING THE BOARD FOR "ADDITIONAL EVIDENCE"
WHICH THESE JUDGES DEEMED MATERIAL.  THE COURT MADE THIS REQUEST UNDER
SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR
MANAGEMENT RELATIONS ACT, WITH RESPECT TO VARIOUS CLAIMS, OUTLINED
ABOVE, AS THEY EMERGED IN THE PROCEEDINGS BEFORE IT.  WHEN IT WAS
CONFRONTED WITH THE EMPLOYERS' APPLICATIONS FOR LEAVE TO ADDUCE SUCH
ADDITIONAL EVIDENCE, THE COURT PRESUMABLY EXAMINED THE CASES IN THIS
COURT AS TO THE NATURE OF ITS POWER TO GRANT THEM AND NOTED THAT OUR
CASES HELD THAT SUCH APPLICATIONS ARE "ADDRESSED TO THE SOUND JUDICIAL
DISCRETION OF THE COURT."  SOUTHPORT PETROLEUM CO. V. LABOR BOARD, 315
U.S. 100, 104; LABOR BOARD V. DONNELLY GARMENT CO., 330 U.S. 219, 233
34.  IN GRANTING THE APPLICATIONS, THE COURT, EXPRESSLY RESERVING
DECISION ON THE MERITS, MERELY REFERRED THE MATTERS BACK TO THE BOARD
FOR ITS ASSISTANCE IN FURNISHING FURTHER INFORMATION AND FOR ITS
RECOMMENDATIONS AND REQUESTS "IN THE LIGHT OF SUCH FURTHER
INFORMATION."  INDEED, THAT COURT HAS RATHER PLAINTIVELY EXPLAINED THAT
IN THE TWO CASES WHICH ARE NOW REVERSED "NOTHING WAS DECIDED."  LABOR
BOARD V. COOPER CO., 179 F.2D 241. 

THE COURT NOTES THAT THE BOARD HAS HELD THAT THE CONTINUED MAJORITY
STATUS OF A CERTIFIED UNION MAY BE CHALLENGED BY AN EMPLOYER IN SEC.
9(C) PROCEEDINGS.  WHITNEY'S, 81 N.L.R.B. 75.  THERE IS NEITHER
EXPLICIT AUTHORIZATION NOR EXPLICIT DENIAL IN THE STATUTE OF THE RIGHT
OF AN EMPLOYER TO MAKE SUCH A CHALLENGE IN ENFORCEMENT PROCEEDINGS. 
NOTHING IN THE TEXT OR CONTEXT OF THE STATUTE OR ANY CONSIDERATION
UNDERLYING ITS POLICY PRECLUDES THE RELEVANCE OF CONTINUED MAJORITY
STATUS TO ENFORCEMENT, ESPECIALLY WHERE LOSS OF MAJORITY MAY BE DUE TO
EMPLOYEE DISSATISFACTION WITH ALLEGED UNION INTRANSIGENCE.  IT APPEARS
TO ME ARBITRARY TO DENY TO A COURT OF APPEALS, IN THE FAIR EXERCISE OF
ITS DISCRETION UNDER SEC. 10(E), THE RIGHT TO ASK THE BOARD FOR LIGHT
ON THIS ISSUE, IF FOR NO OTHER REASON THAN THAT THE BOARD'S VIEWS WOULD
BE HELPFUL IN THE JUDICIAL DETERMINATION OF THE ISSUE. 

FULLY MINDFUL OF THE HEAVY LOAD OF CASES BEFORE THE BOARD, I VENTURE
TO SUGGEST THAT IT COULD HAVE SPEEDILY DISPOSED OF THE MATTERS THAT ON
THE RECORD APPEARED TO TROUBLE THE COURT OF APPEALS, COULD HAVE
REPORTED BACK TO THE COURT, AND COULD HAVE SECURED A PROMPT DISPOSITION
OF ITS PETITIONS FOR ENFORCEMENT.  ANY ADVERSE RULINGS BY THE COURT
COULD THEN HAVE BEEN BROUGHT HERE BY THE BOARD, NOT WITH ANY AMBIGUITY
INHERENT IN A DISCRETIONARY RULING, BUT WITH THE FULL CLARITY OF AN
ADJUDICATION ON THE MERITS.  INSTEAD, THE BOARD COMES HERE TO REVIEW
THE COURT'S INTERIM ORDERS, PETITIONS FOR CERTIORARI RESTING ON A
SPECIAL SET OF UNIQUE CIRCUMSTANCES ARE GRANTED, AND THE COURT OF
APPEALS IS NOW REVERSED BY ATTRIBUTING TO IT A DISAVOWED DISREGARD OF
AN IMPORTANT PRINCIPLE IN THE ADMINISTRATION OF THE LABOR MANAGEMENT
RELATIONS ACT. 

IN THE LIGHT OF THE ENTIRE SERIES OF DECISIONS BY THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT, BOTH BEFORE AND AFTER THE ORDERS IN THIS
CASE, IT DOES NOT SEEM TO ME REASONABLE TO INTERPRET THE ORDERS NOW
BEFORE US AS DEMANDS ON THE BOARD FOR FINDINGS MERELY AS TO COMPLIANCE
WITH THE ORDERS SOUGHT TO BE ENFORCED.  THAT COURT'S DECISIONS PRECLUDE
SUCH INTENDMENT.  SINCE THE RECORD PERMITS, WE OUGHT TO ATTRIBUTE TO A
COURT OF APPEALS NOT A WILLFUL DISREGARD OF PRINCIPLE AND, AS SUCH, AN
ABUSE OF DISCRETION, BUT AN HONEST DESIRE TO GET LIGHT ON HAPPENINGS
AFTER THE BOARD'S ORDERS RELEVANT TO ITS DUTIES AS A COURT OF EQUITY. 
COURTS OF APPEALS ARE ALSO HUMAN INSTITUTIONS.  BY ATTRIBUTING TO THE
COURT OF APPEALS AN ABUSIVE EXERCISE OF DISCRETION WHEN THE RECORD MAY
FAIRLY BE OTHERWISE INTERPRETED, WE NOT ONLY NEEDLESSLY REBUKE THAT
COURT; WE TAKE ACTION CALCULATED TO CHILL OTHER JUDGES IN EXERCISING
WITH UTTER FREEDOM A DISCRETION WHICH WE HAVE HERETOFORE PRONOUNCED
THEY POSSESS. 

I WOULD LEAVE THE ACTION OF THE COURT OF APPEALS TO TAKE THE COURSE
WHICH I BELIEVE WISELY SHOULD HAVE BEEN TAKEN WHEN THEIR ORDERS WERE
ENTERED.  TO THAT END, I WOULD DISMISS THESE WRITS AS IMPROVIDENTLY
GRANTED. 
..END :

















LABOR BOARD V. POOL MFG. CO., 339 U.S. 577 


NO. 435.  ARGUED APRIL 18, 1950.  - DECIDED MAY 15, 1950.  - ORDER
VACATED. 


IN DECEMBER 1943, THE NATIONAL LABOR RELATIONS BOARD CERTIFIED A UNION
AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF CERTAIN EMPLOYEES OF
RESPONDENT, A CORPORATION ENGAGED IN INTERSTATE COMMERCE WITHIN THE
MEANING OF THE NATIONAL LABOR RELATIONS ACT.  IN AUGUST 1946, THE BOARD
ORDERED RESPONDENT TO CEASE AND DESIST FROM ITS REFUSAL TO BARGAIN WITH
THE UNION AND TO OFFER REINSTATEMENT AND BACK PAY TO EMPLOYEES WHO HAD
GONE ON STRIKE.  IN FEBRUARY 1949, THE BOARD PETITIONED FOR ENFORCEMENT
OF THIS ORDER.  RESPONDENT MOVED FOR LEAVE TO ADDUCE ADDITIONAL
EVIDENCE, ALLEGING THAT IT HAD BARGAINED UNSUCCESSFULLY WITH THE UNION
SINCE THE DATE OF THE ORDER; THAT THE UNION HAD MADE NO EFFORT TO
BARGAIN SINCE EARLY IN 1948; AND THAT, AFTER THE RECORD IN THE CASE WAS
CLOSED, FACTS HAD COME TO RESPONDENT'S ATTENTION WHICH CAUSED
RESPONDENT TO QUESTION WHETHER THE UNION RETAINED THE MAJORITY OF THE
EMPLOYEES IN THE BARGAINING UNIT.  THE COURT OF APPEALS ORDERED THE
CASE REFERRED BACK TO THE BOARD WITH DIRECTIONS TO TAKE EVIDENCE AND
REPORT WHETHER THE ORDER HAD BEEN COMPLIED WITH; IF SO, WHETHER THE
MATTER SHOULD NOT BE DISMISSED AS MOOT; AND, IF NOT, WHAT
RECOMMENDATIONS THE BOARD HAD TO MAKE.  HELD:  THE ORDER OF THE COURT
OF APPEALS IS VACATED AND ENFORCEMENT OF THE BOARD'S ORDER MUST BE
DECREED PURSUANT TO SEC. 10(E), UNLESS "EXTRAORDINARY CIRCUMSTANCES"
ARE PLEADED WHICH JUSTIFY RESPONDENT'S FAILURE TO URGE ITS OBJECTIONS
BEFORE THE BOARD.  LABOR BOARD V. MEXIA TEXTILE MILLS, ANTE, P. 563. 
PP. 578-582. 

(A)  IN THIS CASE, THE FACT THAT THE BOARD WAITED TWO AND ONE-HALF
YEARS BEFORE SEEKING ENFORCEMENT OF ITS ORDER WAS NOT FATAL AND CANNOT
SAVE THE ORDER ENTERED BY THE COURT OF APPEALS.  PP. 579-582. 

(B)  A STRICT JUDICIAL TIME LIMITATION OF THE DURATION PRESENTED IN
THIS CASE WOULD FRUSTRATE THE DELIBERATE PURPOSE OF CONGRESS IN
PERMITTING, BUT NOT REQUIRING, RESORT TO AN ENFORCEMENT DECREE.  P.
580. 

(C)  THOSE INTENT UPON VIOLATING THE ACT MAY NOT ESCAPE THROUGH THE
USE OF DELAYING TACTICS IN NEGOTIATION, CULMINATING IN THE FILING OF
MOTIONS FOR LEAVE TO ADDUCE EVIDENCE WHEN ENFORCEMENT IS SOUGHT, THUS
EFFECTIVELY FRUSTRATING THE BOARD'S ORDER.  P. 582. 

NATIONAL LABOR RELATIONS BOARD V. POOL MANUFACTURING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE CASE IS STATED IN THE OPINION.  THE OPINION OF THE COURT OF
APPEALS IS REPORTED IN 24 L.R.R.M. 2147.  THE ORDER OF THE COURT OF
APPEALS IS VACATED, P. 582. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A COMPANION TO LABOR BOARD V. MEXIA TEXTILE MILLS, ANTE,
P. 563, DECIDED THIS DAY.  RESPONDENT IS A MANUFACTURER OF CLOTHING IN
TEXAS, AND IS ENGAGED IN INTERSTATE COMMERCE WITHIN THE MEANING OF THE
LABOR RELATIONS ACTS.  FN1  IN DECEMBER 1943, THE NATIONAL LABOR
RELATIONS BOARD DESIGNATED LOCAL UNION NO. 251 OF THE UNITED GARMENT
WORKERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR,
THE EXCLUSIVE BARGAINING REPRESENTATIVE OF CERTAIN OF RESPONDENT'S
EMPLOYEES.  IN DECEMBER 1945, THE UNION CHARGED THE RESPONDENT WITH
VIOLATIONS OF SECS. 8(1) AND 8(5) OF THE NATIONAL LABOR RELATIONS ACT
IN CONNECTION WITH A STRIKE GOING ON AT THAT TIME.  THE BOARD'S
COMPLAINT WAS ISSUED PURSUANT TO THESE CHARGES IN APRIL 1946; A HEARING
WAS HELD; THE TRIAL EXAMINER'S INTERMEDIATE REPORT WAS ISSUED; AND,
SINCE NO EXCEPTIONS TO THE REPORT WERE ENTERED BY THE RESPONDENT, THE
BOARD, ON AUGUST 26, 1946, ADOPTED THE TRIAL EXAMINER'S FINDINGS, FN2
CONCLUSIONS AND RECOMMENDATIONS, AND ORDERED THE RESPONDENT TO CEASE
AND DESIST FROM ITS REFUSAL TO BARGAIN WITH THE UNION.  WITH CERTAIN
LIMITATIONS, THE COMPANY WAS ALSO ORDERED TO OFFER REINSTATEMENT AND
BACK PAY TO EMPLOYEES WHO HAD GONE ON STRIKE.  70 N.L.R.B. 540(1946). 

TWO AND ONE-HALF YEARS LATER, ON FEBRUARY 17, 1949, THE BOARD
PETITIONED THE COURT OF APPEALS FOR THE FIFTH CIRCUIT FOR THE
ENFORCEMENT OF ITS ORDER.  RESPONDENT MOVED FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE.  IT STATED THAT IT HAD BARGAINED WITH THE UNION
SINCE THE DATE OF THE ORDER, BUT THAT NO AGREEMENT HAD BEEN REACHED;
THAT THE UNION HAD MADE NO EFFORT TO BARGAIN SINCE EARLY IN 1948; THAT
RESPONDENT QUESTIONED WHETHER THE UNION RETAINED THE MAJORITY OF
EMPLOYEES IN THE BARGAINING UNIT, SINCE CERTAIN EMPLOYEES HAD INFORMED
RESPONDENT THAT THEY HAD LEFT THE UNION, AND THE UNION'S ORGANIZER HAD
STATED, ACCORDING TO RESPONDENT, THAT A RIVAL UNION HAD A "SUBSTANTIAL
GROUP" WITHIN ITS MEMBERSHIP; THAT THESE FACTS HAD COME TO RESPONDENT'S
ATTENTION SINCE THE "RECORD IN THE INSTANT CASE WAS CLOSED AND
COMPLETED"; AND FINALLY THAT THE PASSAGE OF THE STATUTE IMPOSING A DUTY
UPON THE UNION TO BARGAIN WITH THE RESPONDENT MIGHT AFFECT THE
DISPOSITION OF THE CASE BEFORE THE BOARD. 

ON MAY 13, 1949, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT ENTERED
AN ORDER IDENTICAL IN PERTINENT PART WITH THAT QUOTED IN LABOR BOARD V.
MEXIA TEXTILE MILLS, ANTE, P. 563.  WE GRANTED CERTIORARI, 338 U.S.
909(1950). 

ALTHOUGH RESPONDENT CONCEDES THAT THE DECISION IN THE MEXIA CASE
GOVERNS THE CASE AT BAR, A SINGLE ISSUE MAY DESERVE SEPARATE
TREATMENT.  IN THE INSTANT CASE THE BOARD WAITED TWO AND ONE-HALF YEARS
BEFORE IT SOUGHT ENFORCEMENT OF ITS ORDER.  THERE IS A SUGGESTION THAT
THE LENGTH OF THE DELAY MAY HAVE INFLUENCED THE COURT OF APPEALS IN
ORDERING THE BOARD TO TAKE EVIDENCE ON THE QUESTION OF COMPLIANCE.  WE
REGARD THIS AS DOUBTFUL, IN VIEW OF ITS IDENTICAL ACTION IN THE MEXIA
CASE, WHEN THE PETITION FOR ENFORCEMENT WAS FILED ONLY NINE MONTHS
AFTER THE BOARD'S ORDER.  BUT IN ANY EVENT WE VIEW THE DELAY AS WITHOUT
CONSEQUENCE IN THIS CASE. 

THE BOARD IS OF COURSE CHARGED WITH PRIMARY RESPONSIBILITY IN
EFFECTUATING THE POLICIES OF THE ACT.  IT HAS DETERMINED THAT THOSE
POLICIES ARE ADVANCED IN SOME CASES BY RESORTING TO THE PROCESSES OF
NEGOTIATION WITH THE EMPLOYER RATHER THAN THE COMPULSION, AS WELL AS
THE TROUBLE AND EXPENSE, OF AN ENFORCEMENT DECREE.  SEE SEC. 202.13 OF
THE BOARD'S EARLIER REGULATIONS REGARDING THE LABOR MANAGEMENT
RELATIONS ACT, 12 FED. REG. 5651, 5653(1947).  IN SOME CASES DELAY IN
ENFORCEMENT MAY BE HELPFUL IN REACHING AN IMMEDIATE SOLUTION OF THE
PROBLEM; IN OTHERS, EXHAUSTION OF NEGOTIATION TECHNIQUES BEFORE A
DECREE IS REQUESTED MAY CONSUME MANY MONTHS AFTER THE BOARD'S ORDER AND
BEFORE SUCH TECHNIQUES FAIL.  WE ARE OF THE OPINION THAT A STRICT
JUDICIAL TIME LIMITATION OF THE DURATION PRESENTED IN THE INSTANT CASE
WOULD FRUSTRATE THE DELIBERATE PURPOSE OF CONGRESS IN PERMITTING, BUT
NOT REQUIRING, RESORT TO AN ENFORCEMENT DECREE.  FN3  CF. SEC. 10(B),
WHICH STATES A DEFINITE PERIOD OF LIMITATION REGARDING CHARGES FILED
WITH THE BOARD.  COMPARE LABOR BOARD V. AMERICAN CREOSOTING CO., 139
F.2D 193(C.A.6TH CIR. 1943); LABOR BOARD V. ELECTRIC VACUUM CLEANER
CO., 315 U.S. 685, 697-698(1942).  WE MUST NOT FORGET THAT THE
"QUESTION WHETHER THE SETTLEMENT (WITH THE EMPLOYER) SHALL BE ACCEPTED
AS DEFINITIVE IS FOR THE BOARD TO DECIDE ...  "  LABOR BOARD V. GENERAL
MOTORS CORP., 179 F.2D 221, 222(C.A.2D CIR. 1950).  THE EMPLOYER, WHO
COULD HAVE OBTAINED REVIEW OF THE BOARD ORDER WHEN IT WAS ENTERED, SEC.
10(F), IS HARDLY IN A POSITION TO OBJECT.  LABOR BOARD V. TODD CO., 173
F.2D 705(C.A.2D CIR. 1949); LABOR BOARD V. ANDREW JERGENS CO., 175 F.2D
130, 134(C.A.9TH CIR. 1949). 

THE CONTRARY ARGUMENT WAS MADE IN MORE EXPLICIT TERMS IN LABOR BOARD
V. CROMPTON-HIGHLAND MILLS, 337 U.S. 217(1949), A CASE ALSO COMING TO
US FROM THE COURT OF APPEALS FOR THE FIFTH CIRCUIT.  THE BOARD'S
PETITION FOR ENFORCEMENT HAD BEEN FILED MORE THAN A YEAR AND THREE
MONTHS AFTER ITS ORDER.  IN ITS BRIEF IN THIS COURT AS WELL AS IN
RESPONSE TO THE PETITION FOR ENFORCEMENT IN THE COURT OF APPEALS, THE
EMPLOYER ALLEGED THAT IT HAD BARGAINED COLLECTIVELY WITH THE UNION FOR
NEARLY TWO YEARS PRIOR TO THE PETITION FOR ENFORCEMENT, AND THAT THE
BOARD'S ORDER REQUIRING COLLECTIVE BARGAINING SHOULD NOT BE ENFORCED. 
NOTING THE DELAY, RESPONDENT ASKED THAT IT BE AFFORDED "AN OPPORTUNITY
TO PROVE THE PERTINENT FACTS."  THE COURT OF APPEALS DENIED THE BOARD'S
"BELATED" PETITION FOR ENFORCEMENT FOR A REASON NOT PERTINENT HERE,
COUPLED WITH "THE EARNEST ASSERTIONS BY THE RESPONDENT THAT IT HAS
COMPLIED WITH THE BOARD'S PREVIOUS ORDER  ...  "  167 F.2D 662,
663(1948).  THIS COURT REVERSED, HOLDING "THAT THE BOARD'S ORDER TO
CEASE AND DESIST IS JUSTIFIED, UNDER THE CIRCUMSTANCES OF THIS CASE
...  "  THE COURT STATED THAT "EVEN THOUGH THE EMPLOYER, SINCE JANUARY
1, 1946, MAY HAVE CARRIED ON COLLECTIVE BARGAINING IN GOOD FAITH AS TO
RATES OF PAY AND OTHER MATTERS, A DECREE ENFORCING THE ORIGINAL ORDER
AGAINST MAKING A GENERAL INCREASE WITHOUT CONSULTING THE COLLECTIVE
BARGAINING REPRESENTATIVES IS JUSTIFIABLE.  '  ...  AN ORDER OF THE
CHARACTER MADE BY THE BOARD, LAWFUL WHEN MADE, DOES NOT BECOME MOOT
BECAUSE IT IS OBEYED OR BECAUSE CHANGING CIRCUMSTANCES INDICATE THAT
THE NEED FOR IT MAY BE LESS THAN WHEN MADE.'  LABOR BOARD V.
PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, 271.  SEE ALSO, FEDERAL
TRADE COMM'N V. GOODYEAR TIRE & RUBBER CO., 304 U.S. 257."  337 U.S. AT
225, N. 7. 

WE THINK THE RATIONALE OF THE CROMPTON-HIGHLAND CASE IS PERSUASIVE
HERE.  OTHERWISE THOSE INTENT UPON VIOLATING THE ACT HAVE A READY MEANS
OF ESCAPE THROUGH THE USE OF DELAYING TACTICS IN NEGOTIATION,
CULMINATING IN THE FILING OF MOTIONS FOR LEAVE TO ADDUCE EVIDENCE WHEN
ENFORCEMENT IS SOUGHT, THUS EFFECTIVELY FRUSTRATING THE BOARD'S ORDER. 
WE NEED NOT NOW FACE THE QUESTION WHETHER A COURT OF APPEALS MAY UNDER
SEC. 10(E) REFER A MATTER BACK TO THE BOARD FOR APPROPRIATE ACTION ON A
SHOWING BY THE EMPLOYER THAT SUBSEQUENT TO THE BOARD'S ORDER, BUT
BEFORE THE PETITION FOR ENFORCEMENT SEVERAL YEARS LATER, A RIVAL UNION
HAS FILED BEFORE THE BOARD A PETITION FOR RECOGNITION, NOT YET ACTED
UPON, WHICH CLAIMS THAT THE BARGAINING REPRESENTATIVE NO LONGER HAS A
MAJORITY OF THE EMPLOYEES.  NOR NEED WE DECIDE WHETHER A PERIOD OF
DELAY THROUGH ITS LENGTH ALONE MAY MATURE INTO A DENIAL OF AN
ENFORCEMENT DECREE OR MAKE NECESSARY THE ADDUCTION OF ADDITIONAL
EVIDENCE.  CF. LABOR BOARD V. EANET, 85 U.S. APP. D.C. 371, 179 F.2D
15(C.A. D.C. CIR. 1949).  WE DECIDE ONLY THAT IN THIS CASE THE BOARD'S
DELAY IN FILING ITS PETITION WAS NOT FATAL, AND CANNOT SAVE THE ORDER
ENTERED BELOW.  LIKE ITS COMPANION, THIS ORDER OF THE COURT OF APPEALS
MUST BE VACATED AND THE ENFORCEMENT OF THE BOARD ORDER DECREED PURSUANT
TO SEC. 10(E), UNLESS "EXTRAORDINARY CIRCUMSTANCES" ARE PLEADED WHICH
JUSTIFY THE RESPONDENT'S FAILURE TO URGE ITS OBJECTIONS BEFORE THE
BOARD.  IT IS SO ORDERED. 

FN1  49 STAT. 449, 29 U.S.C. SEC. 151 ET SEQ.; 61 STAT. 136, 29
U.S.C. (SUPP. III) SEC. 141 ET SEQ. 

FN2  INCLUDING THE TRIAL EXAMINER'S REJECTION OF THE EMPLOYER'S
ALLEGATION THAT THE UNION NO LONGER REPRESENTED THE MAJORITY IN THE
BARGAINING UNIT. 

FN3  "THE SENATE AMENDMENT FOLLOWED THE PRESENT LANGUAGE OF THE ACT,
WHICH PERMITS THE BOARD TO PETITION FOR ENFORCEMENT, BUT DOES NOT
REQUIRE IT TO DO SO.  THE CONFERENCE AGREEMENT ADOPTS THE LANGUAGE OF
THE SENATE AMENDMENT."  H.R. CONF. REP. NO. 510, ON H.R. 3020, 80TH
CONG., 1ST SESS., P. 55. 

(FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR.
JUSTICE JACKSON, SEE ANTE, P. 570.) 
..END :








BROWN SHOE CO. V. COMMISSIONER, 339 U.S. 583 


NO. 445.  ARGUED APRIL 5, 1950.  - DECIDED MAY 15, 1950.  - 175 F.2D
305, REVERSED. 


PETITIONER CORPORATION RECEIVED CASH AND OTHER PROPERTY FROM CERTAIN
COMMUNITY GROUPS AS INDUCEMENTS TO THE LOCATION OR EXPANSION OF
PETITIONER'S MANUFACTURING OPERATIONS IN THE COMMUNITIES.  THE CASH SO
RECEIVED (WHICH WAS LESS THAN THE AMOUNTS EXPENDED FOR LOCAL FACTORY
BUILDINGS AND EQUIPMENT) WAS NOT EARMARKED OR SEGREGATED BUT WAS
DEPOSITED IN PETITIONER'S GENERAL BANK ACCOUNT.  THE VALUES OF
BUILDINGS SO RECEIVED WERE CHARGED TO A BUILDING ACCOUNT.  BOTH CASH
AND OTHER PROPERTY SO RECEIVED WERE CREDITED TO SURPLUS.  HELD:  IN
DETERMINING PETITIONER'S EXCESS PROFITS TAX, COMPUTED BY THE INVESTED
CAPITAL METHOD, FOR THE FISCAL YEARS ENDED 1942 AND 1943: 

1.  UNDER SEC. 113(A)(8)(B) OF THE INTERNAL REVENUE CODE, PETITIONER
WAS ENTITLED TO DEDUCTIONS ON ACCOUNT OF DEPRECIATION ON PROPERTY
ACQUIRED FROM COMMUNITY GROUPS OR ACQUIRED WITH CASH RECEIVED FROM SUCH
GROUPS, TO THE EXTENT THAT THE PROPERTY WAS ACQUIRED AFTER DECEMBER 31,
1920.  DETROIT EDISON CO. V. COMMISSIONER, 319 U.S. 98, DISTINGUISHED. 
PP. 589-591. 

2.  UNDER SEC. 718(A)(1) AND (2) OF THE INTERNAL REVENUE CODE,
PETITIONER MAY ALSO INCLUDE THE VALUE OF SUCH CONTRIBUTIONS FROM
COMMUNITY GROUPS IN EQUITY INVESTED CAPITAL.  LABELLE IRON WORKS V.
UNITED STATES, 256 U.S. 377, DISTINGUISHED.  PP. 592-593. 

BROWN SHOE CO., INC. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

THE CASE IS STATED IN THE FIRST PARAGRAPH OF THE OPINION.  THE
DECISION BELOW IS REVERSED, P. 593. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING SEEKS REDETERMINATION OF PETITIONER'S EXCESS PROFITS
TAX, COMPUTED BY THE INVESTED CAPITAL METHOD, FOR THE FISCAL YEARS
ENDED 1942 AND 1943.  FN1  THE ISSUES ARISE FROM THE PAYMENT OF CASH
AND THE TRANSFER OF OTHER PROPERTY TO PETITIONER BY CERTAIN COMMUNITY
GROUPS AS AN INDUCEMENT TO THE LOCATION OR EXPANSION OF PETITIONER'S
FACTORY OPERATIONS IN THE COMMUNITIES.  PETITIONER CLAIMED, AND THE
COMMISSIONER DISALLOWED, (1) A DEDUCTION FROM GROSS INCOME FOR
DEPRECIATION ON THE PROPERTY CONTRIBUTED AND ON THE FULL COST OF
PROPERTY ACQUIRED IN PART WITH CONTRIBUTED CASH OR EQUIVALENT FUNDS,
AND (2) INCLUSION OF THE TOTAL VALUE OF THE CONTRIBUTIONS IN
PETITIONER'S EQUITY INVESTED CAPITAL.  THE TAX COURT REVERSED THE
COMMISSIONER'S RULING IN PART.  10 T.C. 291(1948).  THE COURT OF
APPEALS FOR THE EIGHTH CIRCUIT HELD WITH THE COMMISSIONER ON ALL
ISSUES.  175 F.2D 305(1949).  WE GRANTED CERTIORARI, 338 U.S.
909(1950), IN VIEW OF AN ASSERTED CONFLICT BETWEEN THE DECISION BELOW
AND THAT OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN COMMISSIONER
V. MCKAY PRODUCTS CORP., 178 F.2D 639(1949), REVERSING THE TAX COURT, 9
T.C. 1082(1947). 

TWO QUESTIONS MUST BE DETERMINED:  FIRST, WHETHER PETITIONER IN
COMPUTING ITS NORMAL-TAX NET INCOME, WHICH IS ADJUSTED IN DETERMINING
EXCESS PROFITS NET INCOME, IS ENTITLED TO DEDUCTIONS FOR DEPRECIATION
WITH RESPECT TO PROPERTY TRANSFERRED TO IT FROM COMMUNITY GROUPS OR
ACQUIRED WITH CASH TO THE EXTENT RECEIVED FROM SUCH GROUPS.  PETITIONER
CONTENDS THAT THE PROPERTIES SO ACQUIRED WERE DEPRECIABLE AS "GIFTS"
UNDER SEC. 113(A)(2) OF THE INTERNAL REVENUE CODE OR AS "CONTRIBUTIONS
TO CAPITAL" UNDER SEC. 113(A)(8)(B) OR BOTH; AS TO THE PROPERTIES
ACQUIRED WITH CASH IT CONTENDS ALTERNATIVELY THAT THEY HAD "COST" TO
THE TAXPAYER UNDER SEC. 113(A).  FN2  SECOND, WE MUST DECIDE WHETHER IN
COMPUTING PETITIONER'S INVESTED CAPITAL CREDIT THE AGGREGATE VALUE OF
THE ASSETS TRANSFERRED BY THE COMMUNITY GROUPS MAY BE INCLUDED IN
EQUITY INVESTED CAPITAL UNDER SEC. 718(A) OF THE CODE EITHER AS A
"CONTRIBUTION TO CAPITAL" OR AS "ACCUMULATED EARNINGS AND PROFITS." 
FN3 

PETITIONER IS A NEW YORK CORPORATION WHICH AT ALL TIMES MATERIAL
CONDUCTED MANUFACTURING OPERATIONS IN A NUMBER OF PLANTS LOCATED IN
ILLINOIS, INDIANA, MISSOURI AND TENNESSEE.  FROM 1914 TO 1939
PETITIONER RECEIVED IN SEVENTEEN TRANSACTIONS AN AGGREGATE OF
$885,559.45 IN CASH AND $85,471.56 IN BUILDINGS  FN4  FROM VARIOUS
COMMUNITY GROUPS IN TWELVE TOWNS.  EXCEPT IN ONE INSTANCE, EACH
TRANSFER WAS PURSUANT TO A WRITTEN CONTRACT BETWEEN PETITIONER AND THE
RESPECTIVE COMMUNITY GROUP.  THE CONTRACTS WERE OF THREE TYPES:  THE
FIRST REQUIRED PETITIONER TO LOCATE, CONSTRUCT AND EQUIP, OR ENLARGE, A
FACTORY IN THE COMMUNITY, TO OPERATE THE FACTORY "CONTINUOUSLY SO LONG
AS IT IS PRACTICABLE IN THE CONDUCT OF ITS BUSINESS FOR AT LEAST A
PERIOD OF TEN YEARS," AND TO MEET A MINIMUM PAYROLL, IN CONSIDERATION
OF WHICH THE COMMUNITY GROUP AGREED TO TRANSFER LAND AND CASH "TO BE
USED FOR THE PAYMENT OF SUITABLE FACTORY BUILDING OR BUILDINGS"; IN ONE
INSTANCE EXISTING BUILDINGS WERE ALSO TRANSFERRED AND IN ANOTHER
INSTANCE ONLY BUILDINGS AND NO CASH SUM.  UNDER THIS TYPE OF CONTRACT
PETITIONER WAS OBLIGATED IN THE EVENT OF NONCOMPLIANCE TO TRANSFER THE
BUILDING BACK TO THE COMMUNITY GROUP OR TO REPAY THE SUM.  UNDER A
SECOND TYPE OF AGREEMENT PETITIONER IN CONSIDERATION OF A CASH PAYMENT
UNDERTOOK TO ENLARGE AN EXISTING FACTORY AND TO OPERATE IT FOR A PERIOD
OF TEN YEARS WITH A STIPULATED MINIMUM ADDITION TO PERSONNEL.  A THIRD
TYPE OF CONTRACT CALLED ONLY FOR THE CONSTRUCTION OF AN ADDITION TO
PETITIONER'S EXISTING FACTORY IN CONSIDERATION OF A CASH SUM. 
CONTRACTS OF THE LATTER TYPE WERE IN THE NATURE OF SUPPLEMENTARY
AGREEMENTS WITH COMMUNITY GROUPS AND MAY HAVE INVOLVED AN OBLIGATION ON
THE PART OF PETITIONER TO CONTINUE OPERATION OF THE ADDITIONAL PLANT
FACILITIES FOR THE UNEXPIRED REMAINDER OF A PERIOD NOT EXCEEDING TEN
YEARS AGREED UPON IN AN EARLIER CONTRACT.  NO RESTRICTION WAS IMPOSED
IN ANY INSTANCE AS TO THE USE WHICH PETITIONER MIGHT MAKE OF THE
PROPERTY CONTRIBUTED OR ACQUIRED WITH CASH, OR OF THE PROCEEDS IF THE
PROPERTY SHOULD BE DISPOSED OF, AFTER EXPIRATION OF THE REQUIRED PERIOD
OF OPERATION.  THE TAX COURT ASSUMED PERFORMANCE BY PETITIONER
ACCORDING TO THE TERMS OF THE AGREEMENTS, AND THE COURT OF APPEALS DID
NOT DIFFER.  IN THE CASE OF ELEVEN CONTRACTS THE STIPULATED PERIOD FOR
PERFORMANCE HAD EXPIRED PRIOR TO THE TAXABLE YEARS IN QUESTION. 

THE SINGLE TRANSACTION WHICH WAS NOT BASED UPON SUCH CONTRACTUAL
OBLIGATIONS INVOLVED A $10,000 CASH BONUS PAID IN 1914, ACCORDING TO
THE MINUTES OF PETITIONER'S BOARD OF DIRECTORS, "AS A PART OF  ...
ORGANIZATION EXPENSES IN STARTING THE FACTORY" IN THE PARTICULAR TOWN. 

THE CASH SUMS RECEIVED BY PETITIONER FROM THE GROUPS WERE NOT
EARMARKED FOR, OR HELD INTACT AND APPLIED AGAINST, THE PLANT
ACQUISITIONS IN THE RESPECTIVE COMMUNITIES BUT WERE DEPOSITED IN
PETITIONER'S GENERAL BANK ACCOUNT FROM WHICH WERE PAID GENERAL
OPERATING EXPENSES AND THE COST OF ALL ASSETS ACQUIRED, INCLUDING
FACTORY BUILDINGS AND EQUIPMENT IN THE TOWNS INVOLVED.  THE CASH
PAYMENTS WERE DEBITED TO CASH ACCOUNT ON THE ASSETS SIDE OF
PETITIONER'S LEDGER AND WERE CREDITED TO EARNED SURPLUS EITHER UPON
RECEIPT OR AFTER HAVING FIRST BEEN ASSIGNED TO CONTRIBUTED SURPLUS. 
THE VALUES OF THE BUILDINGS ACQUIRED WERE SET UP IN A BUILDING ACCOUNT
ON THE ASSETS SIDE AND WERE CREDITED TO SURPLUS.  FN5  IN EVERY
INSTANCE THE CASH RECEIVED BY PETITIONER FROM A COMMUNITY GROUP WAS
LESS THAN THE AMOUNT EXPENDED BY IT FOR THE ACQUISITION OR CONSTRUCTION
OF THE LOCAL FACTORY BUILDING AND EQUIPMENT. 

IN COMPUTING ITS NORMAL TAX NET INCOME FOR THE TAXABLE YEARS IN
CONTROVERSY PETITIONER DEDUCTED DEPRECIATION ON THE BUILDINGS
TRANSFERRED BY THE COMMUNITY GROUPS AND ON THE FULL COST OF THE
BUILDINGS AND EQUIPMENT ACQUIRED OR ENLARGED IN THE COMMUNITIES FROM
WHICH IT HAD RECEIVED CASH.  PETITIONER ALSO INCLUDED THE TOTAL OF
$971,031.01 IN CASH AND OTHER PROPERTY IN ITS EQUITY INVESTED CAPITAL. 

THE COMMISSIONER DISALLOWED DEPRECIATION DEDUCTIONS WITH RESPECT TO
THE BUILDINGS TRANSFERRED (IN THE VALUE OF $85,471.56) AND THE
PROPERTIES ACQUIRED WITH CASH TO THE EXTENT PAID TO PETITIONER BY THE
GROUPS (IN THE VALUE OF $885,559.45).  FN6  IN COMPUTING THE AMOUNT OF
DEPRECIATION TO BE ALLOWED, THE COMMISSIONER DEDUCTED THAT PORTION OF
THE COST OF THE BUILDINGS, LAND AND MACHINERY WHICH WAS PAID WITH SUCH
CONTRIBUTED CASH OR EQUIVALENT FUNDS.  FN7  THE COMMISSIONER IN MAKING
SUCH REDUCTIONS ALLOCATED THE CASH CONTRIBUTION TO EACH ITEM, SUCH AS
BUILDINGS, LAND IF ANY HAD BEEN PURCHASED, AND MACHINERY IN THE
PROPORTION OF THE TOTAL COST OF SUCH ITEM TO THE TOTAL COST OF THE
PROJECT.  THE COMMISSIONER ALSO DISALLOWED INCLUSION IN EQUITY INVESTED
CAPITAL OF THE TOTAL ASSETS TRANSFERRED, REDUCING SUCH CAPITAL AS
COMPUTED BY PETITIONER BY $971,031.01. 

THE TAX COURT REVERSED THE COMMISSIONER'S DISALLOWANCE OF
DEPRECIATION WITH RESPECT TO THAT PORTION OF THE ACQUISITIONS PAID FOR
WITH CASH.  IT CONCLUDED THAT THESE ITEMS HAD "COST" AND THEREFORE
"BASIS" TO PETITIONER, SINCE THEY HAD BEEN PAID FOR FROM PETITIONER'S
OWN UNRESTRICTED FUNDS IN WHICH THE CASH CONTRIBUTIONS HAD BEEN
DEPOSITED WITHOUT EARMARKING; AS TO THE BUILDINGS TRANSFERRED, THE
COURT SUSTAINED THE COMMISSIONER ON THE GROUND THAT THESE TRANSFERS
WERE NOT GIFTS AND THEREFORE THE TRANSFEROR'S BASIS WAS NOT AVAILABLE
TO PETITIONER.  IT HELD THAT THE PETITIONER WAS IN ERROR IN RECORDING
THE CONTRIBUTIONS IN EQUITY INVESTED CAPITAL AS "CONTRIBUTIONS TO
CAPITAL" BECAUSE ONLY STOCKHOLDERS COULD MAKE SUCH CONTRIBUTIONS.  FN8
THE COURT OF APPEALS, REVERSING THE TAX COURT AS TO THE ALLOWANCE OF
DEPRECIATION DEDUCTIONS WITH RESPECT TO PROPERTY ACQUIRED WITH CASH,
HELD THAT TO THE EXTENT OF THE CONTRIBUTIONS THERE WAS NO COST TO
PETITIONER.  FN9 

WE THINK THE ASSETS TRANSFERRED TO PETITIONER BY THE COMMUNITY GROUPS
REPRESENTED "CONTRIBUTIONS TO CAPITAL" WITHIN THE MEANING OF SEC.
113(A)(8)(B) AND REQUIRED NO REDUCTION IN THE DEPRECIATION BASIS OF THE
PROPERTIES ACQUIRED.  FN10  THE VALUES WHICH THE TAXPAYER RECEIVED WERE
ADDITIONS TO "CAPITAL" AS THAT TERM HAS COMMONLY BEEN UNDERSTOOD IN
BOTH BUSINESS AND ACCOUNTING PRACTICE; FN11  CONFORMABLY WITH THIS
USAGE THE PERTINENT TREASURY REGULATIONS HAVE CONSISTENTLY RECOGNIZED
THAT CONTRIBUTIONS TO CAPITAL MAY ORIGINATE WITH PERSONS HAVING NO
PROPRIETARY INTEREST IN THE BUSINESS.  FN12  THAT THIS INTERPRETATION
IS IN HARMONY WITH BROAD CONGRESSIONAL POLICY AS TO DEPRECIATION
DEDUCTIONS WAS EMPHASIZED BY THE THIRD CIRCUIT WHEN CONSIDERING THE
SIMILAR SITUATION PRESENTED IN COMMISSIONER V. MCKAY PRODUCTS CORP.,
SUPRA, 178 F.2D AT 643: 

"...  THE ASSETS RECEIVED  ...  ARE BEING USED BY THE TAXPAYER IN THE
OPERATION OF ITS BUSINESS.  THEY WILL IN TIME WEAR OUT, AND IF (THE
TAXPAYER) IS TO CONTINUE IN BUSINESS, THE PHYSICAL PLANT MUST
EVENTUALLY BE REPLACED.  LOOKING AS THEY DO TOWARD BUSINESS CONTINUITY,
THE INTERNAL REVENUE CODE'S DEPRECIATION PROVISIONS - AND ESPECIALLY
THOSE WHICH PROVIDE FOR A SUBSTITUTED RATHER THAN A COST BASIS - WOULD
SEEM TO ENVISION ALLOWANCE OF A DEPRECIATION DEDUCTION IN SITUATIONS
LIKE THIS...." 

THE COMMISSIONER CONTENDS, HOWEVER, THAT THIS CONCLUSION WAS
FORECLOSED BY DETROIT EDISON CO. V. COMMISSIONER, 319 U.S. 98(1943). 
THAT DECISION DENIED INCLUSION IN THE BASE FOR DEPRECIATION OF ELECTRIC
POWER LINES THE AMOUNT OF PAYMENTS RECEIVED BY THE ELECTRIC COMPANY FOR
CONSTRUCTION OF THE LINE EXTENSIONS TO THE PREMISES OF APPLICANTS FOR
SERVICE.  IT WAS HELD THAT TO THE EXTENT OF SUCH PAYMENTS THE ELECTRIC
LINES DID NOT HAVE COST TO THE TAXPAYER, AND THAT SUCH PAYMENTS WERE
NEITHER GIFTS NOR CONTRIBUTIONS TO THE TAXPAYER'S CAPITAL.  WE DO NOT
CONSIDER THAT CASE CONTROLLING ON THE ISSUE WHETHER CONTRIBUTIONS TO
CAPITAL ARE INVOLVED HERE.  BECAUSE IN THE DETROIT EDISON CASE "THE
PAYMENTS WERE TO THE CUSTOMER THE PRICE OF THE SERVICE," THE COURT
CONCLUDED THAT "IT OVERTAXES IMAGINATION TO REGARD THE FARMERS AND
OTHER CUSTOMERS WHO FURNISHED THESE FUNDS AS MAKERS EITHER OF DONATIONS
OR CONTRIBUTIONS TO THE COMPANY."  SINCE IN THIS CASE THERE ARE NEITHER
CUSTOMERS NOR PAYMENTS FOR SERVICE, WE MAY INFER A DIFFERENT PURPOSE IN
THE TRANSACTIONS BETWEEN PETITIONER AND THE COMMUNITY GROUPS.  THE
CONTRIBUTIONS TO PETITIONER WERE PROVIDED BY CITIZENS OF THE RESPECTIVE
COMMUNITIES WHO NEITHER SOUGHT NOR COULD HAVE ANTICIPATED ANY DIRECT
SERVICE OR RECOMPENSE WHATEVER, THEIR ONLY EXPECTATION BEING THAT SUCH
CONTRIBUTIONS MIGHT PROVE ADVANTAGEOUS TO THE COMMUNITY AT LARGE. 
UNDER THESE CIRCUMSTANCES THE TRANSFERS MANIFESTED A DEFINITE PURPOSE
TO ENLARGE THE WORKING CAPITAL OF THE COMPANY.  FN13 

THE ASSETS TRANSFERRED BY THE COMMUNITY GROUPS ARE LIKEWISE
CONTRIBUTIONS TO PETITIONER'S CAPITAL FOR THE PURPOSE OF COMPUTING ITS
INVESTED CAPITAL CREDIT.  FN14  CF. I.R.C. SEC. 728.  PRECISELY THE
SAME INTERPRETATION HAS BEEN PLACED BY THE RELEVANT TREASURY
REGULATIONS UPON THE TERM "CONTRIBUTION TO CAPITAL" APPEARING IN SEC.
718(A) AS UPON THE LIKE EXPRESSION IN THE INCOME TAX PROVISIONS.  FN15
THAT THE EXCESS PROFITS TAX PROVISION CHARACTERIZES CAPITAL
CONTRIBUTIONS AS BEING "INVESTED" AND "PAID IN" DOES NOT INDICATE, AS
THE COMMISSIONER URGES, THAT THE CONCEPT OF CAPITAL IS THE CONSTRICTED
ONE OF LEGAL CAPITAL OR CAPITAL ORIGINATING WITH PERSONS HAVING A
PROPRIETARY INTEREST IN THE BUSINESS; WE THINK INSTEAD THAT THE
TAXPAYER'S INVESTMENT INCLUDES CERTAIN VALUES WHICH ARE PROPERLY
"TREATED AS HIS INVESTMENT," CF. REISINGER V. COMMISSIONER, 144 F.2D
475, 477-478(C.A.2D CIR. 1944), THOUGH NOT HAVING COST TO THE
TAXPAYER.  CF. I.R.C. SEC. 723.  IT WOULD HAVE BEEN AN ODDITY FOR
CONGRESS TO MAKE THE INCLUSION OF ACTUAL CAPITAL CONTRIBUTIONS IN
EQUITY INVESTED CAPITAL TURN UPON WHETHER THE TRANSFEROR OWNED OR
FAILED TO OWN ONE OR TWO SHARES OF STOCK IN THE CORPORATION AT THE TIME
OF THE TRANSFER.  FN16 

THE DECISION OF THIS COURT IN LABELLE IRON WORKS V. UNITED STATES,
256 U.S. 377(1921), IS NOT TO THE CONTRARY.  THAT CASE WAS DECIDED
UNDER THE EXCESS PROFITS TAX LAW OF 1917 IN WHICH "INVESTED CAPITAL"
WAS DEFINED AS "(1) ACTUAL CASH PAID IN, (2) THE ACTUAL CASH VALUE OF
TANGIBLE PROPERTY PAID IN OTHER THAN CASH, FOR STOCK OR SHARES  ...  AT
THE TIME OF SUCH PAYMENT  ...  AND (3) PAID IN OR EARNED SURPLUS AND
UNDIVIDED PROFITS USED OR EMPLOYED IN THE BUSINESS  ...."  THE COURT
HELD THAT NEITHER UNEARNED APPRECIATION IN VALUE OF THE TAXPAYER'S ORE
LANDS NOR THE SURRENDER OF OLD STOCK IN EXCHANGE FOR NEW ISSUES BASED
UPON THAT VALUE, COULD BE REGARDED AS "THE ACTUAL CASH VALUE OF
TANGIBLE PROPERTY PAID IN OTHER THAN CASH" OR AS "PAID IN OR EARNED
SURPLUS AND UNDIVIDED PROFITS."  THE INCLUDABILITY OF CONTRIBUTIONS BY
OUTSIDERS IN INVESTED CAPITAL WAS NOT PASSED UPON.  FN17    TO THE
EXTENT THAT PETITIONER ACQUIRED PROPERTY INVOLVED IN THIS CONTROVERSY
AFTER DECEMBER 31, 1920, IT IS ENTITLED TO DEDUCTIONS ON ACCOUNT OF
DEPRECIATION UNDER SEC 113(A)(8)(B).  IT ALSO MAY INCLUDE THE VALUE OF
THE CONTRIBUTIONS FROM COMMUNITY GROUPS IN EQUITY INVESTED CAPITAL
UNDER SEC. 718(A)(1) AND (2).  THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED AND THE CASE REMANDED WITH DIRECTIONS TO REMAND TO THE TAX
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED.    FN1  THE TAX IN CONTROVERSY IS IMPOSED UNDER THE EXCESS
PROFITS TAX PROVISIONS OF THE SECOND REVENUE ACT OF 1940, 54 STAT. 974,
975, AS AMENDED, I.R.C. SEC. 710 ET SEQ. THE TAX IS LEVIED UPON EXCESS
PROFITS NET INCOME REMANINING AFTER ALLOWANCE OF A $5,000 SPECIFIC
EXEMPTION AND AN EXCESS PROFITS CREDIT REPRESENTING A NORMAL PROFIT. 
THE ACT PERMITTED COMPUTATION OF THE CREDIT ON THE BASIS EITHER OF
AVERAGE INCOME OVER A BASE PERIOD OR OF "INVESTED CAPITAL," WHICH
INCLUDES EQUITY INVESTED CAPITAL AND 50 PERCENT OF BORROWED CAPITAL. 
THE EXCESS PROFITS TAX PROVISIONS OF THE ACT WERE REPEALED IN 1945.  59
STAT. 556, 568. 

FN2  SECTION 23(1) OF THE CODE PERMITS A DEDUCTION FROM GROSS INCOME
FOR DEPRECIATION OF PROPERTY, AND SEC. 23(N) PROVIDES THAT THE "BASIS"
FOR DEPRECIATION SHALL BE AS PROVIDED IN SEC. 114, WHICH ADOPTS THE
"ADJUSTED BASIS" PROVIDED IN SEC. 113(B) FOR DETERMINING GAIN.  THIS
SUBSECTION IN TURN REFERS TO SEC 113(A), WHICH PROVIDES THAT THE "BASIS
(UNADJUSTED)" SHALL BE THE "COST" OF THE PROPERTY, WITH CERTAIN
EXCEPTIONS INCLUDING THE FOLLOWING:  SEC. 113(A)(2) PROVIDES IN
RELEVANT PART THAT "IF THE PROPERTY WAS ACQUIRED BY GIFT AFTER DECEMBER
31, 1920, THE BASIS SHALL BE THE SAME AS IT WOULD BE IN THE HANDS OF
THE DONOR OR THE LAST PRECEDING OWNER BY WHOM IT WAS NOT ACQUIRED BY
GIFT  ...."; SEC. 113(A)(8) PROVIDES THAT "IF THE PROPERTY WAS ACQUIRED
AFTER DECEMBER 31, 1920, BY A CORPORATION  ...  BAS PAID-IN SURPLUS OR
AS A CONTRIBUTION TO CAPITAL, THEN THE BASIS SHALL BE THE SAME AS IT
WOULD BE IN THE HANDS OF THE TRANSFEROR  ...." 

FN3  SECTION 718(A) PROVIDED RELEVANTLY: 

"...  THE EQUITY INVESTED CAPITAL FOR ANY DAY OF ANY TAXABLE YEAR
...  SHALL BE THE SUM OF THE FOLLOWING AMOUNTS, REDUCED AS PROVIDED IN
SUBSECTION (B) - 

"(1)  ...  MONEY PREVIOUSLY PAID IN FOR STOCK, OR AS PAID-IN SURPLUS,
OR AS A CONTRIBUTION TO CAPITAL; 

"(2)  ...  PROPERTY (OTHER THAN MONEY) PREVIOUSLY PAID IN (REGARDLESS
OF THE TIME PAID IN) FOR STOCK, OR AS PAID-IN SURPLUS, OR AS A
CONTRIBUTION TO CAPITAL.... 

     .         .   .         .         . 

"(4)  ...  THE ACCUMULATED EARNINGS AND PROFITS AS OF THE BEGINNING
OF SUCH TAXABLE YEAR  ...."  54 STAT. 974, 982, 26 U.S.C. (1940 ED.) 
SEC.  718(A)(1), (2), (4). 

FN4  THE VALUE OF THE LAND UPON WHICH THE BUILDINGS WERE LOCATED WAS
NOT INCLUDED IN PETITIONER'S BOOKS AND IS UNIMPORTANT FOR THIS
PROCEEDING. 

FN5  BOTH COURTS BELOW AND THE COMMISSIONER HAVE EXPRESSLY ASSUMED,
AS PETITIONER ASSERTS, THAT THE RECEIPTS OF PROPERTY AND CASH WERE NOT
TAXED AS INCOME. 

FN6  THE COMMISSIONER DOES NOT DENY THAT SUCH DEDUCTIONS WERE
DISALLOWED FOR THE FIRST TIME IN 1943, FOLLOWING THE DECISION IN
DETROIT EDISON CO. V. COMMISSIONER, 319 U.S. 98(1943). 

FN7  THE AMOUNT THUS DISALLOWED ON ACCOUNT OF DEPRECIATION WAS
$22,472.60 FOR THE FISCAL YEAR ENDED 1942 AND $24,307.10 FOR THE FISCAL
YEAR ENDED 1943.  THERE WAS NO DETERMINATION BY THE COMMISSIONER OF A
DEFICIENCY IN PETITIONER'S NORMAL TAX FOR EITHER YEAR. 

FN8  THE TAX COURT RELIED AT THIS POINT UPON MCKAY PRODUCTS CORP., 9
T.C. 1082(1947), WHICH FOLLOWED FRANK HOLTON & CO., 10 B.T.A.
1317(1928) AND A.C.F. GASOLINE CO., 6 B.T.A. 1337(1927), DECIDED UNDER
EARLIER EXCESS PROFITS TAX LAWS, AND LIBERTY MIRROR WORKS, 3 T.C.
1018(1944), INVOLVING I.R.C. SEC. 718.  THE OPINIONS IN FRANK HOLTON &
CO. AND LIBERTY MIRROR WORKS REGARDED LABELLE IRON WORKS V. UNITED
STATES, 256 U.S. 377(1921), AS CONTROLLING. 

FN9  FOR THIS RESULT THE COURT OF APPEALS CITED DETROIT EDISON CO. V.
COMMISSIONER, 319 U.S. 98(1943); COMMISSIONER V. ARUNDEL-BROOKS
CONCRETE CORP., 152 F.2D 225(C.A.4TH CIR. 1945); AND ITS OWN PRIOR
DECISION IN C.L. DOWNEY CO. V. COMMISSIONER, 172 F.2D 810(C.A.8TH CIR.
1949).  IN AFFIRMING ON THE INVESTED CAPITAL ISSUE THE COURT OF APPEALS
RELIED IN PART ON LABELLE IRON WORKS V. UNITED STATES, NOTE 8 SUPRA,
AND ON THE DETROIT EDISON CASE. 

FN10  SEE O'MEARA, CONTRIBUTIONS TO CAPITAL BY NON-SHAREHOLDERS, 3
TAX L. REV. 568, 572(1948). 

NO SUGGESTION IS MADE BY THE COMMISSIONER THAT BECAUSE THE TRANSFERS
WERE THE SUBJECT OF CONTRACT THEY WERE NOT "CONTRIBUTIONS" WITHIN THE
STATUTE. 

FN11  SEE, E.G., CURRENT PROBLEMS IN ACCOUNTING - PROCEEDINGS OF THE
ACCOUNTING INSTITUTE, 1941, P. 20(REVISED STATEMENT BY AMERICAN
ACCOUNTING ASSOCIATION OF ACCOUNTING PRINCIPLES UNDERLYING CORPORATE
FINANCIAL STATEMENTS); GUTHMANN AND DOUGALL, CORPORATE FINANCIAL POLICY
525(1940); HARVEY, SOME INDICIA OF CAPITAL TRANSFERS UNDER THE FEDERAL
INCOME TAX LAWS, 37 MICH. L. REV. 745, 747, N. 6(1939); MARPLE, CAPITAL
SURPLUS AND CORPORATE NET WORTH 12, 136-137(1936).  CF. MAGILL, TAXABLE
INCOME 389(REV.  ED., 1945); 1 MERTENS, LAW OF FEDERAL INCOME TAXATION
SEC. 5.14(1942); TEXAS & PAC. R. CO. V. UNITED STATES, 286 U.S. 285,
289(1932); LYKES BROS. S.S. CO., INC., 42 B.T.A. 1395, 1401(1940),
AFF'D 126 F.2D 725, 727(C.A.5TH CIR. 1942); HELVERING V. CLAIBORNE
ANNAPOLIS FERRY CO., 93 F.2D 875, 876(C.A.4TH CIR. 1938). 

FN12  TREAS. REG. 86, ART. 113(A)(8)-1; TREAS. REG. 94, ART. 113(8)
1; TREAS. REG. 101, ART. 113(A)(8)-1; TREAS. REG. 103, SEC.
19.113(A)(8)-1; AND TREAS. REG. 111, SEC. 29.113(A)(8)-1 HAVE READ IN
PART:  "IN RESPECT OF PROPERTY ACQUIRED BY A CORPORATION AFTER DECEMBER
31, 1920, FROM A SHAREHOLDER AS PAID-IN SURPLUS, OR FROM ANY PERSON AS
A CONTRIBUTION TO CAPITAL, THE BASIS OF THE PROPERTY IN THE HANDS OF
THE CORPORATION IS THE BASIS WHICH THE PROPERTY WOULD HAVE HAD IN THE
HANDS OF THE TRANSFEROR IF THE TRANSFER HAD NOT BEEN MADE...."  THE
PROVISION OF SEC. 113(A)(8)(B), REVENUE ACT OF 1932, IN WHICH THE TERM
"CONTRIBUTION TO CAPITAL" FIRST APPEARED IN FEDERAL REVENUE
LEGISLATION, WAS REENACTED WITHOUT CHANGE IN THE ACT OF 1934 AND,
FOLLOWING THE ABOVE INTERPRETATION IN THE REGULATIONS, IN THE ACTS OF
1936 AND 1938 AND IN THE INTERNAL REVENUE CODE. 

FN13  COMMISSIONER V. ARUNDEL-BROOKS CONCRETE CORP., 152 F.2D
225(C.A.4TH CIR. 1945), RELIED UPON BY THE COURT BELOW, INVOLVED ONLY
THE ISSUE WHETHER THE FULL COST OF A CONCRETE MIXING PLANT, THE
CONSTRUCTION OF WHICH WAS FINANCED IN PART BY PAYMENTS FROM A NEARBY
SUPPLIER OF A RAW MATERIAL USED IN MIXING CONCRETE, WAS DEPRECIABLE TO
THE TAXPAYER; THERE WAS NO "CONTRIBUTION TO CAPITAL" ISSUE, THE ONLY
QUESTION BEING ONE OF COST BASIS.  HOWEVER, THE PAYMENTS IN THAT CASE
WERE MADE IN CONSIDERATION OF SERVICES RENDERED.  THE CONSTRUCTION OF
THE CONCRETE PLANT DIRECTLY BENEFITED THE SUPPLIER OF RAW MATERIALS BY
INSURING THE USE OF ITS SOLE PRODUCT BY THE TAXPAYER; THE SUPPLIER WAS
ALSO SERVED THROUGH A BUSINESS AFFILIATION WITH THE PARENT OF THE
WHOLLY OWNED TAXPAYER IN THE FORM OF AN EXCLUSIVE MARKETING ARRANGEMENT
WHICH SAVED THE SUPPLIER THE EXPENSE OF A SALES ORGANIZATION.  SEE
ARUNDEL-BROOKS CONCRETE CORP. V. COMMISSIONER, 129 F.2D 762(C.A.4TH
CIR. 1942). 

FN14  SEE BREWSTER, THE FEDERAL EXCESS PROFITS TAX 110-111(1941). 

FN15  TREAS. REG. 109, SEC. 30.718-1; TREAS. REG. 112, SEC. 35.718
1. 

THE COMMISSIONER AGREES THAT THE TERM "CONTRIBUTION TO CAPITAL" IS
USED WITH THE SAME MEANING IN SECS. 113(A)(8)(B) AND 718(A). 

FN16  SEE 2 MONTGOMERY'S FEDERAL TAXES - CORPORATIONS AND
PARTNERSHIPS - 1946-47, P. 372. 

FN17  IN SOUTHERN PAC. CO. V. EDWARDS, 57 F.2D 891(S.D.N.Y. 1932),
THE COURT HELD THAT A CAPITAL DONATION ORIGINATING WITH A
NONSTOCKHOLDER WAS INCLUDABLE IN INVESTED CAPITAL AS "PAID-IN SURPLUS"
UNDER THE 1917 ACT.  HOWEVER, CONTRIBUTIONS TO CAPITAL ACCOUNT FROM
OUTSIDERS ARE OFTEN THOUGHT OF AS CONTRIBUTED OR DONATED CAPITAL
SURPLUS RATHER THAN AS PAID-IN SURPLUS, SEE E.G., HOAGLAND, CORPORATION
FINANCE 555(3D ED. 1947); WE THINK THAT FOR THIS REASON AMONG OTHERS
CONGRESS ADDED THE TERM "CONTRIBUTION TO CAPITAL" TO THE EXCESS PROFITS
TAX PROVISIONS OF THE 1940 ACT, AS IT HAD TO THE REVENUE ACTS (SEC.
113(A)(8)) SINCE 1932, TO INDICATE THAT CONTRIBUTIONS FROM OUTSIDERS
INTENDED AS ADDITIONS TO CAPITAL SHOULD BE INCLUDED IN THE
COMPUTATION.  SEE S. REP. NO. 665, 72D CONG., 1ST SESS. 27-28(1932);
H.R. REP. NO. 1492, 72D CONG., 1ST SESS. 13(1932). 

MR. JUSTICE BLACK AGREES WITH THE COURT OF APPEALS AND WOULD AFFIRM
ITS JUDGMENT. 
..END :


















UNITED STATES V. BRYAN, 339 U.S. 323 


NO. 99.  ARGUED DECEMBER 15, 1949.  - DECIDED MAY 8, 1950.  - 84 U.S.
APP. D.C. 394, 174 F.2D 525, REVERSED. 


RESPONDENT WAS THE EXECUTIVE SECRETARY AND HAD CUSTODY OF THE RECORDS
OF AN ASSOCIATION WHICH WAS UNDER INVESTIGATION BY THE COMMITTEE ON UN
AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES.  THE COMMITTEE
ISSUED AND SERVED UPON RESPONDENT A SUBPOENA DIRECTING HER TO PRODUCE
BEFORE THE COMMITTEE, AT A STATED TIME, SPECIFIED RECORDS OF THE
ASSOCIATION.  RESPONDENT APPEARED BEFORE THE COMMITTEE, BUT REFUSED TO
PRODUCE THE RECORDS ON THE GROUND THAT THE COMMITTEE WAS WITHOUT
CONSTITUTIONAL RIGHT TO DEMAND THEM.  RESPONDENT WAS INDICTED, TRIED
AND CONVICTED FOR WILLFUL DEFAULT IN VIOLATION OF R.S. SEC. 102, 2
U.S.C. SEC. 192.  HELD: 

1.  THE PRESENCE OF A QUORUM OF THE COMMITTEE AT THE TIME OF THE
RETURN TO THE SUBPOENA WAS NOT AN ESSENTIAL ELEMENT OF THE OFFENSE
(CHRISTOFFEL V. UNITED STATES, 338 U.S. 84, DISTINGUISHED); AND, WHEN
THE GOVERNMENT INTRODUCED EVIDENCE THAT RESPONDENT HAD BEEN VALIDLY
SERVED WITH A LAWFUL SUBPOENA DIRECTING HER TO PRODUCE RECORDS WITHIN
HER CUSTODY AND CONTROL AND THAT ON THE RETURN DAY SHE INTENTIONALLY
FAILED TO COMPLY, IT MADE OUT A PRIMA FACIE CASE OF WILLFUL DEFAULT. 
PP. 327-330. 

2.  THE DEFENSE OF LACK OF A QUORUM WAS NOT AVAILABLE TO RESPONDENT
UNDER THE CIRCUMSTANCES OF THIS CASE.  PP. 330-335. 

(A)  WHEN A WITNESS SEEKS TO EXCUSE A DEFAULT ON GROUNDS OF INABILITY
TO COMPLY WITH A SUBPOENA, THE DEFENSE MUST FAIL IN THE ABSENCE OF A
SHOWING OF EVEN A MODICUM OF GOOD FAITH IN RESPONDING TO THE SUBPOENA. 
P. 332. 

(B)  RESPONDENT HAVING MADE NO OBJECTION TO THE LACK OF A QUORUM ON
HER APPEARANCE BEFORE THE COMMITTEE, HAVING RELIED ON OTHER GROUNDS FOR
NONCOMPLIANCE WITH THE SUBPOENA, AND HAVING RAISED THE QUORUM QUESTION
FOR THE FIRST TIME ON HER TRIAL TWO YEARS LATER, SHE CANNOT RELY UPON
THE DEFENSE OF LACK OF A QUORUM ON HER TRIAL FOR WILLFUL DEFAULT.  PP.
332-335. 

3.  THE TRIAL COURT DID NOT ERR IN PERMITTING THE GOVERNMENT TO READ
TO THE JURY THE TESTIMONY THAT RESPONDENT HAD GIVEN BEFORE THE
COMMITTEE WHEN CALLED UPON TO PRODUCE THE RECORDS.  PP. 335-343. 

(A)  R.S. SEC. 859, NOW 18 U.S.C. SEC. 3486, WHICH PROVIDES THAT "NO
TESTIMONY GIVEN BY A WITNESS BEFORE  ...  ANY COMMITTEE OF EITHER HOUSE
...  SHALL BE USED AS EVIDENCE IN ANY CRIMINAL PROCEEDING AGAINST HIM
IN ANY COURT, EXCEPT IN A PROSECUTION FOR PERJURY COMMITTED IN GIVING
SUCH TESTIMONY," DID NOT BAR THE USE, AT RESPONDENT'S TRIAL FOR WILLFUL
DEFAULT UNDER R.S. SEC. 102, OF THE TESTIMONY GIVEN BY HER BEFORE THE
COMMITTEE.  PP. 337-340. 

(B)  IN R.S. SEC. 859 THE TERM "ANY CRIMINAL PROCEEDING" DOES NOT
APPLY TO A PROSECUTION FOR WILLFUL DEFAULT UNDER R.S. SEC. 102.  PP.
338, 342-343. 

(C)  CONGRESS INTENDED THE IMMUNITY PROVIDED BY R.S. SEC. 859 TO
APPLY ONLY TO PAST CRIMINAL ACTS CONCERNING WHICH A WITNESS MAY BE
CALLED TO TESTIFY.  PP. 339-343. 

UNITED STATES V. BRYAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

RESPONDENT WAS CONVICTED OF A VIOLATION OF R.S. SEC. 102, FOR FAILURE
TO PRODUCE RECORDS IN COMPLIANCE WITH A SUBPOENA OF THE COMMITTEE ON UN
AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES.  72 F.SUPP.  58. 
THE COURT OF APPEALS REVERSED.  84 U.S. APP. D.C. 394, 174 F.2D 525. 
THIS COURT GRANTED CERTIORARI.  338 U.S. 846.  REVERSED, P. 343. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

RESPONDENT IS THE EXECUTIVE SECRETARY OF AN ORGANIZATION KNOWN AS THE
JOINT ANTI-FASCIST REFUGEE COMMITTEE (HEREINAFTER REFERRED TO AS THE
ASSOCIATION) AND AS SUCH HAS CUSTODY OF ITS RECORDS.  PRIOR TO APRIL 4,
1946, THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE HOUSE OF
REPRESENTATIVES, WHICH WAS CONDUCTING AN INVESTIGATION INTO THE
ACTIVITIES OF THE ASSOCIATION, HAD ATTEMPTED WITHOUT SUCCESS TO PROCURE
THESE RECORDS FROM RESPONDENT AND FROM THE CHAIRMAN OF THE
ASSOCIATION'S EXECUTIVE BOARD, DR. EDWARD K. BARSKY.  ON MARCH 29,
1946, THE COMMITTEE ISSUED SUBPOENAS TO EACH OF THE KNOWN MEMBERS OF
THE EXECUTIVE BOARD SUMMONING THEM TO APPEAR IN THE COMMITTEE'S ROOM ON
APRIL 4, 1946, AT 10 A.M., TO TESTIFY AND PRODUCE CERTAIN SPECIFIED
RECORDS OF THE ASSOCIATION, AND AN IDENTICAL SUBPOENA DIRECTED TO THE
ASSOCIATION BY NAME WAS SERVED UPON RESPONDENT BRYAN IN HER OFFICIAL
CAPACITY. 

BRYAN AND THE MEMBERS OF THE EXECUTIVE BOARD APPEARED BEFORE THE
COMMITTEE AT THE DATE AND TIME SET OUT IN THE SUBPOENAS AND IN RESPONSE
THERETO.  EACH PERSON SO SUMMONED FAILED TO PRODUCE ANY OF THE RECORDS
SPECIFIED IN THE SUBPOENAS.  THE MEMBERS OF THE EXECUTIVE BOARD MADE
IDENTICAL STATEMENTS IN WHICH EACH DECLARED THAT HE OR SHE DID NOT HAVE
POSSESSION, CUSTODY OR CONTROL OF THE RECORDS; THAT MISS BRYAN, THE
EXECUTIVE SECRETARY, DID.  RESPONDENT ADMITTED THAT THE RECORDS WERE IN
HER POSSESSION BUT REFUSED TO COMPLY WITH THE SUBPOENA BECAUSE "AFTER
CONSULTING WITH COUNSEL (SHE) CAME TO THE CONCLUSION THAT THE SUBPENA
WAS NOT VALID" BECAUSE THE COMMITTEE HAD NO CONSTITUTIONAL RIGHT TO
DEMAND THE BOOKS AND RECORDS.  ASKED WHETHER THE EXECUTIVE BOARD
SUPPORTED HER ACTION, SHE REFUSED TO ANSWER BECAUSE SHE DID NOT THINK
THE QUESTION PERTINENT. 

THE COMMITTEE ON UN-AMERICAN ACTIVITIES THEN SUBMITTED ITS REPORT AND
RESOLUTION TO THE HOUSE.  SETTING OUT AT LENGTH THE COMMITTEE'S
ATTEMPTS TO PROCURE THE RECORDS OF THE ASSOCIATION, THE REPORT
CONCLUDES: 

"THE WILLFUL AND DELIBERATE REFUSAL OF HELEN R. BRYAN AND THE MEMBERS
OF THE EXECUTIVE BOARD OF THE JOINT ANTI-FASCIST REFUGEE COMMITTEE AS
NAMED HEREIN TO PRODUCE THE BOOKS, PAPERS, AND RECORDS CALLED FOR IN
THE SUBPENAS DEPRIVES YOUR COMMITTEE OF EVIDENCE NECESSARY IN THE
CONDUCT OF ITS INVESTIGATION OF THE JOINT ANTI-FASCIST REFUGEE
COMMITTEE, WHICH EVIDENCE IS PERTINENT TO THE SAID INVESTIGATION AND
PLACES THE SAID PERSONS IN CONTEMPT OF THE HOUSE OF REPRESENTATIVES OF
THE UNITED STATES."  FN1 

THE RESOLUTION DIRECTING THE SPEAKER TO CERTIFY THE COMMITTEE'S
REPORT TO THE UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA FOR
LEGAL ACTION WAS APPROVED BY THE FULL HOUSE AFTER DEBATE.  FN2 

RESPONDENT WAS INDICTED FOR VIOLATION OF R.S. SEC. 102,  FN3  IN THAT
SHE HAD FAILED TO PRODUCE THE RECORDS CALLED FOR IN THE SUBPOENAS AND
HAD THEREBY WILFULLY MADE DEFAULT.  AT THE TRIAL SHE CONTENDED, INTER
ALIA, THAT SHE WAS NOT GUILTY OF WILFUL DEFAULT BECAUSE A QUORUM OF THE
COMMITTEE ON UN-AMERICAN ACTIVITIES HAD NOT BEEN PRESENT WHEN SHE
APPEARED ON THE RETURN DAY.  HOWEVER, THE TRIAL COURT WITHDREW THAT
ISSUE FROM THE JURY'S CONSIDERATION BY INSTRUCTING THE JURY "AS A
MATTER OF LAW, THAT THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE
HOUSE OF REPRESENTATIVES WAS A VALIDLY CONSTITUTED COMMITTEE OF THE
CONGRESS, AND WAS AT THE TIME OF THE DEFENDANT'S APPEARANCE." 
RESPONDENT WAS FOUND GUILTY, 72 F.SUPP.  58, BUT THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT, ONE JUDGE DISSENTING, REVERSED
THE JUDGMENT ON THE GROUND THAT THE PRESENCE OF A QUORUM OF THE
COMMITTEE AT THE HEARING ON APRIL 4, 1946, WAS A MATERIAL QUESTION OF
FACT IN THE ALLEGED OFFENSE AND SHOULD HAVE BEEN SUBMITTED TO THE
JURY.  84 U.S. APP. D.C. 394, 174 F.2D 525.  WE GRANTED A WRIT OF
CERTIORARI, 338 U.S. 846, TO CONSIDER THIS IMPORTANT QUESTION AFFECTING
THE PROCEDURES OF CONGRESSIONAL COMMITTEES. 

FIRST.  R.S. SEC. 102 WAS ENACTED IN 1857.  ITS PURPOSE, AS STATED BY
ITS SPONSORS, WAS TO AVOID THE PROCEDURAL DIFFICULTIES WHICH HAD BEEN
EXPERIENCED BY THE HOUSE OF REPRESENTATIVES WHEN PERSONS CITED FOR
CONTEMPT OF THE HOUSE WERE BROUGHT BEFORE ITS BAR TO SHOW CAUSE WHY
THEY SHOULD NOT BE COMMITTED, AND, MORE IMPORTANT, TO PERMIT THE
IMPRISONMENT OF A CONTEMNOR BEYOND THE EXPIRATION OF THE CURRENT
SESSION OF CONGRESS.  FN4  TRANSMISSION OF THE FACT OF THE COMMISSION
OF A CONTEMPT TO THE PROSECUTING AUTHORITY IS MADE UNDER THE SEAL OF
THE HOUSE OR SENATE BY THE SPEAKER OR PRESIDENT OF THE SENATE.  FN5
THE JUDICIAL PROCEEDINGS ARE INTENDED AS AN ALTERNATIVE METHOD OF
VINDICATING THE AUTHORITY OF CONGRESS TO COMPEL THE DISCLOSURE OF FACTS
WHICH ARE NEEDED IN THE FULFILLMENT OF THE LEGISLATIVE FUNCTION.  IN RE
CHAPMAN, 166 U.S. 661, 671-672(1897); JURNEY V. MACCRACKEN, 294 U.S.
125, 151(1935). 

"DEFAULT" IS, OF COURSE, A FAILURE TO COMPLY WITH THE SUMMONS.  IN
THIS CASE WE MAY ASSUME, WITHOUT DECIDING, THAT THE SUBPOENA SERVED ON
RESPONDENT REQUIRED HER TO PRODUCE THE RECORDS OF THE ASSOCIATION
BEFORE THE COMMITTEE ON UN-AMERICAN ACTIVITIES, SITTING AS A
COMMITTEE.  FN6  UPON THAT ASSUMPTION, RESPONDENT TAKES THE POSITION
THAT, ABSENT A QUORUM, THE COMMITTEE WAS WITHOUT POWER TO RECEIVE THE
RECORDS ON THE RETURN DAY; THAT SHE CANNOT BE GUILTY OF A DEFAULT IN
FAILING TO PRODUCE PAPERS BEFORE AN "AGENCY ORGANIZATIONALLY
DEFECTIVE," WHICH, FOR THAT REASON, "CANNOT BE OBSTRUCTED."  RESPONDENT
DOES NOT AND CANNOT, IN VIEW OF THE JURY'S VERDICT, CONTEST THE FINDING
THAT SHE DELIBERATELY AND INTENTIONALLY REFUSED TO PRODUCE THE PAPERS
CALLED FOR IN THE SUBPOENA.  HER CONTENTION IS THAT A QUORUM OF THE
COMMITTEE WAS REQUIRED TO MEET TO WITNESS HER REFUSAL.  RELIANCE IS
PLACED UPON CERTAIN PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, WHICH
HOLD THAT A COMMITTEE REPORT MAY BE CHALLENGED IN THE HOUSE ON THE
GROUND THAT A QUORUM OF THE COMMITTEE WAS NOT PRESENT WHEN THE REPORT
WAS APPROVED, AND UPON THIS COURT'S RECENT DECISION IN CHRISTOFFEL V.
UNITED STATES, 338 U.S. 84(1949). 

THE CHRISTOFFEL CASE IS INAPPOSITE.  FOR THAT DECISION, WHICH
INVOLVED A PROSECUTION FOR PERJURY BEFORE A CONGRESSIONAL COMMITTEE,
RESTS IN PART UPON THE PROPOSITION THAT THE APPLICABLE PERJURY STATUTE
REQUIRES THAT A "COMPETENT TRIBUNAL" BE PRESENT WHEN THE FALSE
STATEMENT IS MADE.  THERE IS NO SUCH REQUIREMENT IN R.S. SEC. 102.  IT
DOES NOT CONTEMPLATE SOME AFFIRMATIVE ACT WHICH IS MADE PUNISHABLE ONLY
IF PERFORMED BEFORE A COMPETENT TRIBUNAL, BUT AN INTENTIONAL FAILURE TO
TESTIFY OR PRODUCE PAPERS, HOWEVER THE CONTUMACY IS MANIFESTED. 
RESPONDENT ATTEMPTS TO EQUATE R.S. SEC. 102 WITH THE PERJURY STATUTE
CONSIDERED IN THE CHRISTOFFEL CASE BY CONTENDING THAT IT APPLIES ONLY
TO THE REFUSAL TO TESTIFY OR PRODUCE PAPERS BEFORE A COMMITTEE - I.E.,
IN THE PRESENCE OF A QUORUM OF THE COMMITTEE.  BUT THE STATUTE IS NOT
SO LIMITED.  IN THE FIRST PLACE, IT REFERS TO THE WILFUL FAILURE BY ANY
PERSON "TO GIVE TESTIMONY OR TO PRODUCE PAPERS UPON ANY MATTER UNDER
INQUIRY BEFORE  ...  ANY COMMITTEE OF EITHER HOUSE OF CONGRESS," NOT TO
THE FAILURE TO TESTIFY BEFORE A CONGRESSIONAL COMMITTEE.  AND THE FACT
THAT APPEARANCE BEFORE A COMMITTEE IS NOT AN ESSENTIAL ELEMENT OF THE
OFFENSE IS FURTHER EMPHASIZED BY ADDITIONAL LANGUAGE IN THE STATUTE,
WHICH, AFTER DEFINING WILFUL DEFAULT IN THE TERMS SET OUT ABOVE,
CONTINUES, "OR WHO, HAVING APPEARED, REFUSES TO ANSWER ANY QUESTION
PERTINENT TO THE QUESTION UNDER INQUIRY, SHALL BE DEEMED GUILTY OF A
MISDEMEANOR,  ...." 

IT IS CLEAR THAT R.S. SEC. 102 IS DESIGNED TO PUNISH THE OBSTRUCTION
OF INQUIRIES IN WHICH THE HOUSES OF CONGRESS OR THEIR COMMITTEES ARE
ENGAGED.  IF IT IS SHOWN THAT SUCH AN INQUIRY IS, IN FACT, OBSTRUCTED
BY THE INTENTIONAL WITHHOLDING OF DOCUMENTS, IT IS UNIMPORTANT WHETHER
THE SUBPOENAED PERSON PROCLAIMS HIS REFUSAL TO RESPOND BEFORE THE FULL
COMMITTEE, SENDS A TELEGRAM TO THE CHAIRMAN, OR SIMPLY STAYS AWAY FROM
THE HEARING ON THE RETURN DAY.  HIS STATEMENTS OR ACTIONS ARE MERELY
EVIDENCE FROM WHICH A JURY MIGHT INFER AN INTENT TO DEFAULT.  A
PROCLAIMED REFUSAL TO RESPOND, AS IN THIS CASE, MAKES THAT INTENT
PLAIN.  BUT IT WOULD HARDLY BE LESS PLAIN IF THE WITNESS EMBARKED ON A
VOYAGE TO EUROPE ON THE DAY BEFORE HIS SCHEDULED APPEARANCE BEFORE THE
COMMITTEE. 

OF COURSE A WITNESS MAY ALWAYS CHANGE HIS MIND.  A DEFAULT DOES NOT
MATURE UNTIL THE RETURN DATE OF THE SUBPOENA, WHATEVER THE PREVIOUS
MANIFESTATIONS OF INTENT TO DEFAULT.  BUT WHEN THE GOVERNMENT
INTRODUCED EVIDENCE IN THIS CASE THAT RESPONDENT HAD BEEN VALIDLY
SERVED WITH A LAWFUL SUBPOENA DIRECTING HER TO PRODUCE RECORDS WITHIN
HER CUSTODY AND CONTROL, AND THAT ON THE DAY SET OUT IN THE SUBPOENA
SHE INTENTIONALLY FAILED TO COMPLY, IT MADE OUT A PRIMA FACIE CASE OF
WILFUL DEFAULT. 

SECOND.  IT IS ARGUED, HOWEVER, THAT EVEN IF THE GOVERNMENT IS NOT
REQUIRED TO PROVE PRESENCE OF A QUORUM AFFIRMATIVELY, LACK OF A QUORUM
IS A DEFENSE RAISING MATERIAL QUESTIONS OF FACT WHICH SHOULD HAVE BEEN
SUBMITTED TO THE JURY.  THE THEORY IS THAT IF THE SUBPOENA REQUIRED
PRODUCTION OF THE RECORDS BEFORE THE COMMITTEE ON UN-AMERICAN
ACTIVITIES QUA COMMITTEE, RESPONDENT COULD NOT HAVE COMPLIED WITH THE
SUBPOENA IN THE ABSENCE OF A QUORUM HAD SHE WISHED TO DO SO, AND
THEREFORE HER DEFAULT IS NOT WILFUL, ALBEIT DELIBERATE AND
INTENTIONAL.  WHILE SHE DID NOT INTRODUCE ANY DIRECT EVIDENCE AT THE
TRIAL, RESPONDENT APPROPRIATELY RAISED THE DEFENSE BY CROSS-EXAMINATION
AND BY HER MOTIONS, REQUESTS AND OBJECTIONS. 

ORDINARILY, ONE CHARGED WITH CONTEMPT OF COURT FOR FAILURE TO COMPLY
WITH A COURT ORDER MAKES A COMPLETE DEFENSE BY PROVING THAT HE IS
UNABLE TO COMPLY.  A COURT WILL NOT IMPRISON A WITNESS FOR FAILURE TO
PRODUCE DOCUMENTS WHICH HE DOES NOT HAVE, UNLESS HE IS RESPONSIBLE FOR
THEIR UNAVAILABILITY, CF. JURNEY V. MACCRACKEN, SUPRA, OR IS IMPEDING
JUSTICE BY NOT EXPLAINING WHAT HAPPENED TO THEM, UNITED STATES V.
GOLDSTEIN, 105 F.2D 150(1939). 

ON THE OTHER HAND, PERSONS SUMMONED AS WITNESSES BY COMPETENT
AUTHORITY HAVE CERTAIN MINIMUM DUTIES AND OBLIGATIONS WHICH ARE
NECESSARY CONCESSIONS TO THE PUBLIC INTEREST IN THE ORDERLY OPERATION
OF LEGISLATIVE AND JUDICIAL MACHINERY.  A SUBPOENA HAS NEVER BEEN
TREATED AS AN INVITATION TO A GAME OF HARE AND HOUNDS, IN WHICH THE
WITNESS MUST TESTIFY ONLY IF CORNERED AT THE END OF THE CHASE.  IF THAT
WERE THE CASE, THEN, INDEED, THE GREAT POWER OF TESTIMONIAL COMPULSION,
SO NECESSARY TO THE EFFECTIVE FUNCTIONING OF COURTS AND LEGISLATURES,
WOULD BE A NULLITY.  WE HAVE OFTEN ITERATED THE IMPORTANCE OF THIS
PUBLIC DUTY, WHICH EVERY PERSON WITHIN THE JURISDICTION OF THE
GOVERNMENT IS BOUND TO PERFORM WHEN PROPERLY SUMMONED.  SEE, E.G.,
BLAIR V. UNITED STATES, 250 U.S. 273, 281(1919); BLACKMER V. UNITED
STATES, 284 U.S. 421, 438(1932). 

CERTAIN EXEMPTIONS FROM ATTENDING OR, HAVING ATTENDED, GIVING
TESTIMONY ARE RECOGNIZED BY ALL COURTS.  BUT EVERY SUCH EXEMPTION IS
GROUNDED IN A SUBSTANTIAL INDIVIDUAL INTEREST WHICH HAS BEEN FOUND,
THROUGH CENTURIES OF EXPERIENCE, TO OUTWEIGH THE PUBLIC INTEREST IN THE
SEARCH FOR TRUTH.  DEAN WIGMORE STATED THE PROPOSITION THUS:  "FOR MORE
THAN THREE CENTURIES IT HAS NOW BEEN RECOGNIZED AS A FUNDAMENTAL MAXIM
THAT THE PUBLIC (IN THE WORDS SANCTIONED BY LORD HARDWICKE) HAS A RIGHT
TO EVERY MAN'S EVIDENCE.  WHEN WE COME TO EXAMINE THE VARIOUS CLAIMS OF
EXEMPTION, WE START WITH THE PRIMARY ASSUMPTION THAT THERE IS A GENERAL
DUTY TO GIVE WHAT TESTIMONY ONE IS CAPABLE OF GIVING, AND THAT ANY
EXEMPTIONS WHICH MAY EXIST ARE DISTINCTLY EXCEPTIONAL, BEING SO MANY
DEROGATIONS FROM A POSITIVE GENERAL RULE."  FN7 

EVERY EXEMPTION FROM TESTIFYING OR PRODUCING RECORDS THUS PRESUPPOSES
A VERY REAL INTEREST TO BE PROTECTED.  IF A PRIVILEGE BASED UPON THAT
INTEREST IS ASSERTED, ITS VALIDITY MUST BE ASSESSED.  SINCE WE ASSUME
IN THIS CASE THAT THE SUBPOENAS REFER TO THE PRODUCTION OF PAPERS
BEFORE THE COMMITTEE QUA COMMITTEE, WE AGREE THAT RESPONDENT COULD
RIGHTFULLY HAVE DEMANDED ATTENDANCE OF A QUORUM OF THE COMMITTEE AND
DECLINED TO TESTIFY OR TO PRODUCE DOCUMENTS SO LONG AS A QUORUM WAS NOT
PRESENT.  BUT THE COURTS NEED NOT TREAT AS IMPORTANT THAT WHICH THE
WITNESS OBVIOUSLY REGARDED AS UNIMPORTANT.  FN8  TESTIMONIAL COMPULSION
IS AN INTENSELY PRACTICAL MATTER.  IF, THEREFORE, A WITNESS SEEKS TO
EXCUSE A DEFAULT ON GROUNDS OF INABILITY TO COMPLY WITH THE SUBPOENA,
WE THINK THE DEFENSE MUST FAIL IN THE ABSENCE OF EVEN A MODICUM OF GOOD
FAITH IN RESPONDING TO THE SUBPOENA.  THAT SUCH WAS THE SITUATION IN
THIS CASE DOES NOT ADMIT OF DOUBT. 

IN THE FIRST PLACE, IF RESPONDENT HAD LEGITIMATE REASONS FOR FAILING
TO PRODUCE THE RECORDS OF THE ASSOCIATION, A DECENT RESPECT FOR THE
HOUSE OF REPRESENTATIVES, BY WHOSE AUTHORITY THE SUBPOENAS ISSUED,
WOULD HAVE REQUIRED THAT SHE STATE HER REASONS FOR NONCOMPLIANCE UPON
THE RETURN OF THE WRIT.  AT THE TIME AND PLACE SPECIFIED IN THE
SUBPOENAS THE CHAIRMAN OF THE COMMITTEE AND A NUMBER OF OTHER MEMBERS -
WHETHER OR NOT A QUORUM WAS PRESENT AT ANY TIME IS NOT CLEAR FROM THE
RECORD - PRESENTED THEMSELVES FOR THE TAKING OF TESTIMONY AND RECEIPT
OF PAPERS.  THE DEFECT IN COMPOSITION OF THE COMMITTEE, IF ANY, WAS ONE
WHICH COULD EASILY HAVE BEEN REMEDIED.  BUT THE COMMITTEE WAS NOT
INFORMED UNTIL THE TRIAL, TWO YEARS AFTER THE REFUSAL TO PRODUCE THE
RECORDS, THAT RESPONDENT SOUGHT TO EXCUSE HER NONCOMPLIANCE ON THE
GROUND THAT A QUORUM OF THE COMMITTEE HAD NOT BEEN PRESENT.  FOR TWO
YEARS, NOW GROWN TO FOUR, THE COMMITTEE'S INVESTIGATION WAS OBSTRUCTED
BY AN OBJECTION WHICH, SO FAR AS WE ARE INFORMED, COULD HAVE BEEN
RECTIFIED IN A FEW MINUTES. 

SUCH A PATENT EVASION OF THE DUTY OF ONE SUMMONED TO PRODUCE PAPERS
BEFORE A CONGRESSIONAL COMMITTEE CANNOT BE CONDONED.  SUPPOSE ONE WHO
HAS BEEN SUMMONED TO PRODUCE PAPERS FAILS TO DELIVER THEM AS REQUIRED
BUT REFUSES TO GIVE ANY REASON.  MAY HE DEFEND A PROSECUTION FOR WILFUL
DEFAULT, MANY MONTHS LATER, ON THE GROUND THAT HE HAD NOT BEEN GIVEN A
SUFFICIENT TIME TO GATHER THE PAPERS?  WE THINK SUCH A CONTENTION
HARDLY TENABLE.  YET, AT THE RETURN DATE, COMPLIANCE WITH THE SUBPOENA
WAS "IMPOSSIBLE" JUST AS IN THE PRESENT CASE.  TO DENY THE COMMITTEE
THE OPPORTUNITY TO CONSIDER THE OBJECTION OR REMEDY IT IS IN ITSELF A
CONTEMPT OF ITS AUTHORITY AND AN OBSTRUCTION OF ITS PROCESSES.  SEE
BEVAN V. KRIEGER, 289 U.S. 459, 464-465(1933). 

IN THE SECOND PLACE, THE FACT THAT THE ALLEGED DEFECT UPON WHICH
RESPONDENT NOW INSISTS IS, IN HER OWN ESTIMATION, AN IMMATERIAL ONE, IS
CLEARLY SHOWN BY HER RELIANCE BEFORE THE COMMITTEE UPON OTHER GROUNDS
FOR FAILING TO PRODUCE THE RECORDS.  SHE DOES NOT DENY, AND THE
TRANSCRIPT OF THE HEARING MAKES IT PERFECTLY CLEAR, THAT SHE WOULD NOT
HAVE COMPLIED WITH THE SUBPOENAS NO MATTER HOW THE COMMITTEE HAD BEEN
CONSTITUTED AT THE TIME.  THIS COURT CONSIDERED A SIMILAR QUESTION IN
HALE V. HENKEL, 201 U.S. 43(1906), WHERE A WITNESS HAD REFUSED IN THE
TRIAL COURT TO PRODUCE CERTAIN BOOKS AND PAPERS CALLED FOR BY A
SUBPOENA DUCES TECUM ON THREE GROUNDS, ONE OF WHICH WAS THAT IT WAS
IMPOSSIBLE TO COLLECT THE RECORDS WITHIN THE TIME ALLOWED.  THE COURT
POINTED OUT THAT "HAD THE WITNESS RELIED SOLELY UPON THE FIRST GROUND,
DOUBTLESS THE COURT WOULD HAVE GIVEN HIM THE NECESSARY TIME."  201 U.S.
AT P. 70.  BUT HAVING REFUSED COMPLIANCE FOR OTHER REASONS WHICH THE
LOWER COURT COULD NOT REMEDY, THE WITNESS COULD NOT LATER COMPLAIN OF
ITS REFUSAL TO DO A MEANINGLESS ACT - TO GRANT HIM ADDITIONAL TIME TO
GATHER PAPERS WHICH HE HAD INDICATED HE WOULD NOT PRODUCE IN ANY
EVENT.  FN9  HERE RESPONDENT WOULD HAVE THE COMMITTEE GO THROUGH THE
EMPTY FORMALITY OF SUMMONING A QUORUM OF ITS MEMBERS TO GATHER IN
SOLEMN CONCLAVE TO HEAR HER REFUSE TO HONOR ITS DEMANDS.  PRESUMABLY
THE SAME FORMALISM WOULD BE REQUIRED IF RESPONDENT HAD INFORMED THE
COMMITTEE THAT SHE WAS NOT COMING AT ALL AND DID NOT DO SO. 

IN A NOT DISSIMILAR CASE, JUDGE LEARNED HAND STATED WHAT WE CONSIDER
TO BE THE BASIC QUESTION BEFORE US AND GAVE THE ANSWER WHICH WE THINK
MUST NECESSARILY FOLLOW.  HE SAID: 

"THE QUESTION IS NO LESS THAN WHETHER COURTS MUST PUT UP WITH SHIFTS
AND SUBTERFUGES IN THE PLACE OF TRUTH AND ARE POWERLESS TO PUT AN END
TO TRIFLING.  THEY WOULD PROVE THEMSELVES INCAPABLE OF DEALING WITH
ACTUALITIES IF IT WERE SO, FOR THERE IS NO SURER SIGN OF A FEEBLE AND
FUMBLING LAW THAN TIMIDITY IN PENETRATING THE FORM TO THE SUBSTANCE." 
LOUBRIEL V. UNITED STATES, 9 F.2D 807, 808(1926). 

WE HOLD THAT THE GOVERNMENT IS NOT REQUIRED TO PROVE THAT A QUORUM OF
THE COMMITTEE WAS PRESENT WHEN THE DEFAULT OCCURRED, AND THAT UNDER THE
CIRCUMSTANCES DISCLOSED BY THIS RECORD A DEFENSE OF LACK OF A QUORUM
WAS NOT OPEN TO RESPONDENT. 

THIRD.  RESPONDENT ALSO CONTENDED AT THE TRIAL THAT THE COURT ERRED
IN PERMITTING THE GOVERNMENT TO READ TO THE JURY THE TESTIMONY SHE HAD
GIVEN BEFORE THE HOUSE COMMITTEE WHEN CALLED UPON TO PRODUCE THE
RECORDS.  SHE RELIES UPON R.S. SEC. 859, NOW CONDIFIED IN SEC. 3486 OF
TITLE 18 U.S.C., WHICH PROVIDES THAT "NO TESTIMONY GIVEN BY A WITNESS
BEFORE  ...  ANY COMMITTEE OF EITHER HOUSE,  ...  SHALL BE USED AS
EVIDENCE IN ANY CRIMINAL PROCEEDING AGAINST HIM IN ANY COURT, EXCEPT IN
A PROSECUTION FOR PERJURY COMMITTED IN GIVING SUCH TESTIMONY.  ...  "
ADMITTEDLY HER TESTIMONY RELATIVE TO PRODUCTION OF THE BOOKS COMES
WITHIN THE LITERAL LANGUAGE OF THE STATUTE; BUT THE TRIAL COURT THOUGHT
THAT TO APPLY THE STATUTE TO RESPONDENT'S TESTIMONY WOULD SUBVERT THE
CONGRESSIONAL PURPOSE IN ITS PASSAGE.  FN10  WE AGREE. 

WE NEED NOT SET OUT THE HISTORY OF THE STATUTE IN DETAIL.  IT SHOULD
BE NOTED, HOWEVER, THAT ITS FUNCTION WAS TO PROVIDE AN IMMUNITY IN
SUBSEQUENT CRIMINAL PROCEEDINGS TO WITNESSES BEFORE CONGRESSIONAL
COMMITTEES, IN RETURN FOR WHICH IT WAS THOUGHT THAT WITNESSES COULD BE
COMPELLED TO GIVE SELF-INCRIMINATING TESTIMONY.  FN11  THAT PURPOSE WAS
EFFECTIVELY NULLIFIED IN 1892 BY THIS COURT'S DECISION IN COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, HOLDING THAT R.S. SEC. 860,  FN12  A STATUTE
IDENTICAL IN ALL MATERIAL RESPECTS WITH R.S. SEC. 859, WAS NOT A
SUFFICIENT SUBSTITUTE FOR THE CONSTITUTIONAL PRIVILEGE OF REFUSING TO
ANSWER SELF-INCRIMINATING QUESTIONS.  UNDER THAT DECISION, A WITNESS
WHO IS OFFERED ONLY THE PARTIAL PROTECTION OF A STATUTE SUCH AS SECS.
859 AND 860 - THAT HIS TESTIMONY MAY NOT BE USED AGAINST HIM IN
SUBSEQUENT CRIMINAL PROCEEDINGS - RATHER THAN COMPLETE IMMUNITY FROM
PROSECUTION FOR ANY ACT CONCERNING WHICH HE TESTIFIES  FN13  MAY CLAIM
HIS PRIVILEGE AND REMAIN SILENT WITH IMPUNITY. 

THE COUNSELMAN DECISION, IT REMAINED ON THE STATUTE BOOKS UNTIL 1910,
"A SHIELD TO THE CRIMINAL AND AN OBSTRUCTION TO JUSTICE."  FN14  BUT
THE ATTENTION OF CONGRESS HAS NOT, APPARENTLY, BEEN CALLED TO THE
ANOMALY PRESENTED BY THE CONTINUED EXISTENCE OF R.S. SEC. 859, WHICH,
LIKE SEC. 860, WAS A CONSTITUENT PART OF AN IMMUNITY "BARGAIN" DECLARED
INVALID IN THE COUNSELMAN CASE.  FN15  THE COURTS MUST, THEREFORE, GIVE
EFFECT TO THE STATUTE.  CAMERON V. UNITED STATES, 231 U.S. 710,
720(1914). 

SINCE RESPONDENT DID NOT REFUSE TO ANSWER THE QUESTIONS PUT TO HER BY
MEMBERS OF THE HOUSE COMMITTEE, HER ARGUMENT IS NOT OF DENIAL OF ANY
CONSTITUTIONAL RIGHT BUT SOLELY THAT R.S. SEC. 859 BARS USE OF HER
TESTIMONY IN HER TRIAL FOR WILFUL DEFAULT.  FN16  THE HISTORY OF THAT
STATUTE, ITS ORIGINAL PURPOSE, AND ITS PRESENT STATUS ARE ALL RELEVANT
CONSIDERATIONS IN ITS INTERPRETATION.  DESPITE THE FACT THAT THE
LITERAL LANGUAGE WOULD ENCOMPASS TESTIMONY ELICITED BY THE HOUSE
COMMITTEE IN ITS QUESTIONING OF RESPONDENT RELATIVE TO THE PRODUCTION
OF THE RECORDS OF THE ASSOCIATION, THE COURT WILL NOT REACH THAT RESULT
IF IT IS CONTRARY TO THE CONGRESSIONAL INTENT AND LEADS TO ABSURD
CONCLUSIONS.  UNITED STATES V. KIRBY, 7 WALL.  482, 486(1869);
GLICKSTEIN V. UNITED STATES, 222 U.S. 139(1911).  AND WE ARE CLEARLY OF
THE OPINION THAT THE CONGRESSIONAL PURPOSE WOULD BE FRUSTRATED IF THE
WORDS, "IN ANY CRIMINAL PROCEEDING," WERE READ TO INCLUDE A PROSECUTION
FOR WILFUL DEFAULT UNDER R.S. SEC. 102. 

THAT PURPOSE WAS "MORE EFFECTUALLY TO ENFORCE THE ATTENDANCE OF
WITNESSES  ...  AND TO COMPEL THEM TO DISCOVER TESTIMONY."  FN17  IT
HAD BEEN THE EXPERIENCE OF CONGRESS PRIOR TO 1857 THAT WITNESSES COULD
NOT BE COMPELLED TO DISCLOSE DESIRED INFORMATION, IN PART BECAUSE OF
INSUFFICIENT PENALTIES FOR NONDISCLOSURE, AND IN PART BECAUSE OF THE
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  IN AN ATTEMPT TO
SURMOUNT THE LATTER OBSTACLE, CONGRESS ENACTED WHAT BECAME R.S. SEC.
859.  BY GRANTING AN IMMUNITY, IT WAS THE CONGRESSIONAL INTENT TO
COMPEL TESTIMONY WHICH HAD HITHERTO BEEN UNAVAILABLE. 

IT IS NOW CONTENDED THAT THE PROTECTION OF THE STATUTE, WHICH WAS
EXTENDED TO WITNESSES IN AN EFFORT TO OBTAIN TESTIMONY, PROTECTS
EQUALLY THE PERSON WHO WILFULLY WITHHOLDS TESTIMONY AND IS PROSECUTED
FOR HIS WILFUL DEFAULT.  THIS CONTENTION COMPLETELY IGNORES THE PURPOSE
OF THE IMMUNITY.  IN THE FIRST PLACE, IT IMPUTES TO CONGRESS THE
CONTRADICTORY AND IRRATIONAL PURPOSE OF GRANTING AN IMMUNITY FROM
PROSECUTION FOR CONTEMPT IN ORDER TO OBTAIN EVIDENCE OF THAT CONTEMPT. 
AND IN THE SECOND PLACE, IT ASSUMES THAT CONGRESS HAD SOME PURPOSE TO
COMPEL TESTIMONY OF THE KIND HERE INVOLVED - STATEMENTS OF REFUSAL BY
THE WITNESS TO ANSWER QUESTIONS OR PRODUCE DOCUMENTS - IN RETURN FOR
WHICH IT WAS WILLING TO GRANT AN IMMUNITY.  SUCH AN ASSUMPTION CANNOT
BE MADE.  THESE STATEMENTS HAVE ALWAYS BEEN AVAILABLE TO THE HOUSES OF
CONGRESS IN CONTEMPT PROCEEDINGS.  THEY ARE UNIFORMLY PRINTED IN THE
REPORTS OF COMMITTEES RECOMMENDING CONTEMPT ACTION  FN18  AND ARE
RELIED UPON BY THE HOUSES WHEN DELIBERATING IN CONTEMPT CASES.  FN19
IN SHORT, THE PURPOSE OF THE STATUTE CONTRADICTS ITS APPLICATION TO
TESTIMONY OF THIS KIND. 

FURTHERMORE, TO HOLD SUCH TESTIMONY INADMISSIBLE IN A PROSECUTION FOR
WILFUL DEFAULT IS TO CONCLUDE THAT CONGRESS, FOR NO DISCERNABLE REASON,
MADE PROOF OF CONTEMPT VASTLY MORE DIFFICULT BEFORE THE COURTS THAN IN
ITS OWN CHAMBERS, SINCE, AS WE HAVE INDICATED, THE HOUSES OF CONGRESS
THEMSELVES ARE ACCUSTOMED TO RELY UPON SUCH TESTIMONY.  THERE IS NOT A
HINT OF ANY SUCH PURPOSE IN THE LEGISLATIVE HISTORY OF THE STATUTE OR
THE DECISIONS CONSTRUING IT.  ON THE CONTRARY, THIS COURT HAS OFTEN
NOTED THAT PROSECUTION UNDER R.S. SEC. 102 WAS INTENDED "MERELY TO
SUPPLEMENT THE POWER OF CONTEMPT BY PROVIDING FOR ADDITIONAL
PUNISHMENT."  JURNEY V. MACCRACKEN, SUPRA, AT 151. 

THE DEBATES ATTENDING ENACTMENT OF THE STATUTES HERE IN QUESTION AND
THE DECISIONS OF THIS AND OTHER FEDERAL COURTS CONSTRUING SUBSTANTIALLY
IDENTICAL STATUTES MAKE PLAIN THE FACT THAT CONGRESS INTENDED THE
IMMUNITY THEREIN PROVIDED TO APPLY ONLY TO PAST CRIMINAL ACTS
CONCERNING WHICH THE WITNESS SHOULD BE CALLED TO TESTIFY.  FN20  THE
OFFENSE OF CONTEMPT OF CONGRESS, WITH WHICH WE ARE PRESENTLY CONCERNED,
ON THE OTHER HAND, MATURES ONLY WHEN THE WITNESS IS CALLED TO APPEAR
BEFORE THE COMMITTEE TO ANSWER QUESTIONS OR PRODUCE DOCUMENTS AND
WILFULLY FAILS TO DO SO.  UNTIL THAT MOMENT HE HAS COMMITTED NO CRIME. 
THERE IS, IN OUR JURISPRUDENCE, NO DOCTRINE OF "ANTICIPATORY
CONTEMPT."  WHILE THE WITNESS' TESTIMONY MAY SHOW THAT HE HAS ELECTED
TO PERJURE HIMSELF OR COMMIT CONTEMPT, HE DOES NOT THEREBY ADMIT HIS
GUILT OF SOME PAST CRIME ABOUT WHICH HE HAS BEEN SUMMONED FOR
QUESTIONING BUT COMMITS THE CRIMINAL ACT THEN AND THERE. 

IN GLICKSTEIN V. UNITED STATES, SUPRA, THIS COURT CONSIDERED THE
PROBLEM THEREBY PRESENTED.  IT WAS THERE HELD THAT PERJURY COMMITTED IN
THE COURSE OF TESTIMONY GIVEN PURSUANT TO STATUTE FALLS OUTSIDE THE
PURVIEW OF SEC. 7(9) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 25(10),
WHICH, LIKE R.S. SEC. 859, PROVIDES THAT NO TESTIMONY GIVEN BY THE
WITNESS (AT A CREDITORS' MEETING) SHALL BE USED AGAINST HIM IN ANY
CRIMINAL PROCEEDINGS.  IN THE COURT'S VIEW, SUCH AN IMMUNITY "RELATES
TO THE PAST AND DOES NOT ENDOW THE PERSON WHO TESTIFIES WITH A LICENSE
TO COMMIT PERJURY."  222 U.S. AT 142.  THE DISTINCTION IS FULLY SPELLED
OUT IN A CIRCUIT COURT OF APPEALS OPINION, EDELSTEIN V. UNITED STATES,
149 F. 636(1906), WHICH WAS CITED WITH APPROVAL IN THE GLICKSTEIN
CASE: 

"TO HOLD THAT THE STATUTE PROTECTS A BANKRUPT FROM THE USE OF HIS
EVIDENCE IN A PROSECUTION FOR PERJURY WHILE ACTUALLY TESTIFYING WOULD
DEFEAT THE OBVIOUS PURPOSES OF THE ACT.  IT WOULD, IN EFFECT, SAY TO
THE BANKRUPT:  YOU MAY FOREGO THE EXERCISE OF YOUR CONSTITUTIONAL
PRIVILEGE, AND CONSENT TO TESTIFY CONCERNING THE CONDUCT OF YOUR
BUSINESS, AND IN THAT WAY PROMOTE THE EFFICIENT ADMINISTRATION OF YOUR
ESTATE AND BENEFIT YOUR CREDITORS, AND BY SO DOING SECURE THE IMMUNITY
PROVIDED FOR; BUT IF YOU GIVE FALSE TESTIMONY, CALCULATED TO EMBARRASS
THE ADMINISTRATION OF YOUR ESTATE AND TO DEFEAT THE JUST RIGHTS OF YOUR
CREDITORS, AND THEREBY COMMIT A CRIME SPECIALLY DENOUNCED AGAINST YOU,
YOU SHALL ENJOY THE SAME IMMUNITY THEREFOR.  MOREOVER, IT WOULD, IN
EFFECT, SECURE TO THE BANKRUPT THE IMMUNITY IN QUESTION FOR VIOLATING
HIS PART OF THE COMPACT, NAMELY, TO TESTIFY - THAT IS, TO TESTIFY
TRUTHFULLY - BY VIRTUE OF WHICH HE SECURED A RIGHT TO THE IMMUNITY.  WE
ARE NOT WILLING TO IMPUTE TO CONGRESS ANY SUCH CONTRADICTORY AND ABSURD
PURPOSE.  THE WORDS 'ANY CRIMINAL PROCEEDING' CANNOT SENSIBLY OR
REASONABLY BE CONSTRUED SO LITERALLY AND GENERALLY AS TO INCLUDE THE
CRIMINAL PROCEEDING PROVIDED BY LAW FOR FALSE SWEARING IN GIVING HIS
TESTIMONY.  THEY OBVIOUSLY HAVE REFERENCE TO SUCH CRIMINAL PROCEEDINGS
AS ARISE OUT OF PAST TRANSACTIONS, ABOUT WHICH THE BANKRUPT IS CALLED
TO TESTIFY."  149 F. AT 643-644. 

THAT STATEMENT IS AT LEAST EQUALLY APPLICABLE TO STATEMENTS MADE BY
THE WITNESS IN REFUSING TO ANSWER QUESTIONS OR PRODUCE PAPERS.  SUCH,
IN FACT, WAS THE RATIONALE AND DECISION OF THE THIRD CIRCUIT COURT OF
APPEALS IN JUST SUCH A CASE.  SEE IN RE KAPLAN BROS., 213 F.
753(1914).  AND SEE CAMERON V. UNITED STATES, SUPRA, 719; MCCARTHY V.
ARNDSTEIN, 266 U.S. 34, 42(1924). 

THE SAME REASONS THAT LED THIS COURT TO CONCLUDE THAT THE CLAUSE
EXCEPTING A PROSECUTION FOR PERJURY FROM THE REACH OF ANOTHER IMMUNITY
STATUTE "WAS ADDED ONLY FROM SUPERFLUOUS CAUTION AND THROWS NO LIGHT ON
THE CONSTRUCTION," HEIKE V. UNITED STATES, 227 U.S. 131, 141(1913),
LEAD US TO HOLD THAT CONGRESS DID NOT INTEND THE TERM, "ANY CRIMINAL
PROCEEDING," TO ENCOMPASS A PROSECUTION OF THE WITNESS FOR WILFUL
DEFAULT UNDER R.S. SEC. 102.  A CONTRARY VIEW WOULD SIMPLY ENCOURAGE
THE REFUSAL OF WITNESSES TO ANSWER QUESTIONS OR PRODUCE PAPERS, QUITE
CONTRARY TO THE PURPOSE OF THE STATUTE.    RESPONDENT ADVANCES SEVERAL
CONTENTIONS WHICH WERE NOT PASSED UPON BY THE COURT OF APPEALS.  WE DO
NOT DECIDE THEM AT THIS TIME.  THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED. 

FN1  92 CONG. REC. 3762, 79TH CONG., 2D SESS. (1946). 

FN2  ID. AT 3773. 

FN3  11 STAT. 155, AS AMENDED, R.S. SEC. 102, 2 U.S.C. SEC. 192: 

"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 JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, 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 JAIL FOR NOT LESS THAN ONE MONTH NOR
MORE THAN TWELVE MONTHS." 

FN4  SEE, E.G., REMARKS OF REPRESENTATIVE ORR, CONG. GLOBE, 34TH
CONG., 3D SESS. 405(1857). 

FN5  R.S. SEC. 104, 2 U.S.C. SEC. 194. 

FN6  THE SUBPOENA READ AS FOLLOWS: 

"BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE
UNITED STATES OF AMERICA 

"TO THE SERGEANT AT ARMS, OR HIS SPECIAL MESSENGER: 

"YOU ARE HEREBY COMMANDED TO SUMMON THE JOINT ANTI-FASCIST REFUGEE
COMMITTEE, 192 LEXINGTON AVENUE, NEW YORK CITY, A VOLUNTARY
ORGANIZATION TO BE AND APPEAR BEFORE THE UN-AMERICAN ACTIVITIES
COMMITTEE OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, OF
WHICH THE HON. JOHN S. WOOD IS CHAIRMAN, AND TO BRING WITH YOU ALL
BOOKS, LEDGERS, RECORDS AND PAPERS RELATING TO THE RECEIPT AND
DISBURSEMENT OF MONEY BY OR ON ACCOUNT OF THE JOINT ANTI-FASCIST
REFUGEE COMMITTEE OR ANY SUBSIDIARY OR SUB-COMMITTEE THEREOF, TOGETHER
WITH ALL CORRESPONDENCE AND MEMORANDA OF COMMUNICATIONS BY ANY MEANS
WHATSOEVER WITH PERSONS IN FOREIGN COUNTRIES.  THE SAID BOOKS, PAPERS
AND RECORDS DEMANDED HEREIN ARE FOR THE PERIOD FROM JANUARY 1, 1945 UP
TO AND INCLUDING THE DATE OF THIS SUBPOENA, IN THEIR CHAMBER IN THE
CITY OF WASHINGTON, ON APRIL 4, 1946, AT THE HOUR OF 10:00 A.M. THEN
AND THERE TO TESTIFY TOUCHING MATTERS OF INQUIRY COMMITTED TO SAID
COMMITTEE; AND (SHE) IS NOT TO DEPART WITHOUT LEAVE OF SAID COMMITTEE. 

"HEREIN FAIL NOT, AND MAKE RETURN OF THIS SUMMONS.  ...  " 

FN7  WIGMORE, EVIDENCE (3D ED.)  SEC.  2192. 

FN8  IT IS, OF COURSE, CLEAR THAT RESPONDENT'S "INABILITY" TO COMPLY
WITH THE SUBPOENA BECAUSE A QUORUM OF THE COMMITTEE WAS NOT PRESENT
AMOUNTS TO NO MORE THAN THE CLAIM THAT SHE IS EXCUSED FROM DOING SO.
THE JURY FOUND THAT SHE HAD POWER TO PRODUCE THE PAPERS.  THE QUESTION
THEREFORE ARISES AS TO WHAT POSSIBLE PREJUDICE RESPONDENT MIGHT HAVE
SUFFERED IF SHE HAD TURNED OVER THE RECORDS TO LESS THAN A QUORUM OF
THE COMMITTEE.  IN THE CASE OF ORAL TESTIMONY, A WITNESS MIGHT WELL
DESIRE TO APPEAR ONLY IF A QUORUM WAS PRESENT BECAUSE OF A FEELING THAT
SOME COMMITTEE MEMBERS, UNRESTRAINED BY PRESENCE OF A MAJORITY, MIGHT
EXCEED PROPER BOUNDS OF INQUIRY.  BUT THAT CONSIDERATION IS OBVIOUSLY
INAPPLICABLE TO THE PRODUCTION OF PAPERS AND IS IRRELEVANT HERE IN ANY
EVENT SINCE RESPONDENT TESTIFIED. 

FN9  SEE ALSO, BLACKMER V. UNITED STATES, 284 U.S. 421, 443(1932);
LEBER V. UNITED STATES, 170 F. 881, 888(1909); LONDON GUARANTEE &
ACCIDENT CO., LTD. V. DOYLE & DOAK, 134 F. 125(1905); STATE EX REL.
BERGE V. SUPERIOR COURT, 154 WASH. 144, 281 P. 335(1929). 

FN10  SEE THE COURT'S OPINION IN UNITED STATES V. BARSKY, 72 F.SUPP. 
165(1947), AFFIRMED, BARSKY V. UNITED STATES, 83 U.S. APP. D.C. 127,
138, 167 F.2D 241, 252(1948). 

FN11  R.S. SEC. 859, AS ORIGINALLY ENACTED IN 1857, WAS A PART OF
SEC. 2 OF A COMPREHENSIVE STATUTE, 11 STAT. 155, DESIGNED ON THE ONE
HAND TO COMPEL THE TESTIMONY OF WITNESSES AND ON THE OTHER HAND TO
PROTECT THEM FROM PROSECUTION FOR CRIMES REVEALED BY THEIR TESTIMONY. 
ENACTED, SEC. 2 NOT ONLY PREVENTED THE USE OF A WITNESS' TESTIMONY IN
SUBSEQUENT CRIMINAL PROCEEDINGS BUT GAVE HIM COMPLETE IMMUNITY FROM
PROSECUTION "FOR ANY FACT OR ACT TOUCHING WHICH HE SHALL BE REQUIRED TO
TESTIFY."  THIS LATTER PROVISION WAS DELETED IN 1862, 12 STAT. 333,
LEAVING ONLY THE PARTIAL PROTECTION OF SEC. 859, WHICH WAS IN EFFECT
DECLARED INSUFFICIENT TO REQUIRE A WITNESS TO GIVE SELF-INCRIMINATORY
TESTIMONY IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547(1892). 

FN12  R.S. SEC. 860 APPLIED TO EVIDENCE OBTAINED FROM A PARTY OR
WITNESS IN ANY "JUDICIAL PROCEEDING" AND PROVIDED THAT SUCH EVIDENCE
SHOULD NOT BE USED AGAINST SUCH PERSON IN ANY CRIMINAL PROCEEDING. 

FN13  SEE BROWN V. WALKER, 161 U.S. 591(1896). 

FN14  H.R. REP. NO. 266, 61ST CONG., 2D SESS., WHICH WAS CONCURRED IN
BY THE SENATE COMMITTEE REPORTING THE REPEALER, STATES: 

"THIS SECTION (860) WAS ENACTED APPARENTLY FOR THE PURPOSE OF
ENABLING THE GOVERNMENT TO COMPEL THE DISCLOSURE OF INCRIMINATING
TESTIMONY ON CONDITION THAT THE WITNESS DISCLOSING THE SAME WOULD BE
GIVEN IMMUNITY.  IN THE CASE OF COUNSELMAN V. HITCHCOCK (142 U.S., 547)
IT WAS HELD THAT LEGISLATION CAN NOT ABRIDGE A CONSTITUTIONAL
PRIVILEGE, AND THAT IT CAN NOT REPLACE OR SUPPLY ONE, AT LEAST UNLESS
IT IS SO BROAD AS TO HAVE THE SAME EXTENT IN SCOPE AND EFFECT, AND THAT
SAID SECTION 860 OF THE REVISED STATUTES DOES NOT SUPPLY A COMPLETE
PROTECTION FROM ALL THE PERILS AGAINST WHICH THE CONSTITUTIONAL
PROHIBITION WAS DESIGNED TO GUARD, AND IS NOT A FULL SUBSTITUTE FOR
THAT PROHIBITION, AND THAT IN VIEW OF THE CONSTITUTIONAL PROVISION
(ARTICLE 5 OF THE AMENDMENTS) A STATUTORY ENACTMENT TO BE VALID MUST
AFFORD ABSOLUTE IMMUNITY AGAINST FUTURE PROSECUTION FOR THE OFFENSE TO
WHICH THE QUESTION RELATES. 

"SINCE THE DECISION ABOVE REFERRED TO SECTION 860 HAS POSSESSED NO
USEFULNESS WHATEVER, BUT HAS REMAINED IN THE LAW AS AN IMPEDIMENT TO
THE COURSE OF JUSTICE.  UNDER IT A WITNESS CAN NOT BE COMPELLED TO GIVE
ANY INCRIMINATING TESTIMONY WHATEVER, BUT IF HE CHOOSES TO GO ON THE
WITNESS STAND AND TESTIFY AS TO ANY MATTER WHATEVER, EVEN OF HIS OWN
VOLITION, AND, WHETHER INCRIMINATORY OR NOT, HIS TESTIMONY CAN NOT
THEREAFTER BE BROUGHT UP AGAINST HIM IN ANY CRIMINAL PROCEEDINGS.  HE
CAN NOT BE CONFRONTED WITH HIS OWN TESTIMONY OR HIS OWN PREVIOUS
STATEMENT UNDER OATH EVEN ON CROSS-EXAMINATION.  THE STATUTE HAS BECOME
A SHIELD TO THE CRIMINAL AND AN OBSTRUCTION TO JUSTICE." 

FN15  IN 1938 CONGRESS MADE MINOR AMENDMENTS TO THE STATUTES IN
QUESTION WITHOUT RECOGNIZING THEIR INCONSISTENCY WITH THE COUNSELMAN
CASE.  52 STAT. 943.  SEE S. REP. NO. 2108, 75TH CONG., 3D SESS. 

FN16  UNITED STATES V. MONIA, 317 U.S. 424(1943), IS, OF COURSE,
INAPPLICABLE.  THAT DECISION RELATES TO THE NECESSITY OF MAKING A CLAIM
OF IMMUNITY UNDER THE PARTICULAR STATUTE THERE INVOLVED.  THE OPINION
SPECIFICALLY STATES THAT THE CONSTITUTIONAL PRIVILEGE, AS DISTINGUISHED
FROM THE STATUTORY IMMUNITY UNDER CONSIDERATION IN THAT CASE, MUST BE
CLAIMED.  ID. AT 427. 

FN17  SEE 11 STAT. 155. 

FN18  SEE, E.G., S. REP. NO. 254, 73D CONG., 2D SESS., THE REPORT OF
A SPECIAL COMMITTEE ON INVESTIGATION OF AIR MAIL AND OCEAN MAIL
CONTRACTS, SETTING OUT IN GREAT DETAIL THE TESTIMONY OF WILLIAM P.
MACCRACKEN, JR., ET AL., "IN ORDER THAT THE SENATE MAY DETERMINE
WHETHER OR NOT ANY ACTION SHALL BE TAKEN BY THE SENATE WITH A VIEW TO
PROCEEDING AGAINST THE SAID WILLIAM P. MACCRACKEN, JR. ...  IN THE
NATURE OF A PROCEEDING FOR CONTEMPT OR OTHERWISE  ...  "  SEE JURNEY V.
MACCRACKEN, 294 U.S. 125(1935). 

FN19  THE INCIDENT GIVING RISE TO ENACTMENT OF THE STATUTE
ILLUSTRATES THE POINT.  A CORRESPONDENT OF THE NEW YORK TIMES, HAVING
MADE CHARGES OF CORRUPTION ON THE PART OF MEMBERS OF THE HOUSE OF
REPRESENTATIVES IN CONNECTION WITH PENDING LEGISLATION, WAS CALLED
BEFORE A SELECT COMMITTEE OF THE HOUSE AND ASKED TO NAME THE
REPRESENTATIVES INVOLVED.  HE DECLINED TO DO SO FOR THE REASON THAT THE
INFORMATION HAD BEEN GIVEN TO HIM IN CONFIDENCE.  THE COMMITTEE'S
QUESTIONS AND THE WITNESS' ANSWERS ARE SET OUT AT LENGTH IN THE
CONGRESSIONAL GLOBE, 34TH CONG., 3D SESS., PP. 403-404, AS A PART OF
THE COMMITTEE'S REPORT AND RESULTED IN HIS BEING CALLED TO THE BAR OF
THE HOUSE "TO ANSWER AS FOR A CONTEMPT OF THE AUTHORITY OF THIS HOUSE,"
AND IN HIS SUBSEQUENT COMMITMENT.  THESE PROCEEDINGS WERE CARRIED ON IN
CONJUNCTION WITH CONSIDERATION OF THE STATUTE IN THE HOUSE.  THE
CONTENTION NOW MADE WOULD IMPUTE TO CONGRESS AN INTENT TO DEPRIVE THE
COURTS OF THE VERY INFORMATION UPON WHICH THE HOUSE HAD ACTED IN THE
CASE GIVING RISE TO THE STATUTE. 

FN20  REPRESENTATIVE ORR:  "THE BILL PROVIDES THAT NO PERSONS CALLED
BEFORE THAT COMMITTEE TO TESTIFY BEFORE THEM SHALL BE SUBJECTED TO
CRIMINAL PROSECUTION FOR ANY OFFENSE THEY MAY HAVE COMMITTED, AND FOR
WHICH THEIR TESTIMONY WOULD FURNISH THE BASIS OF AN INDICTMENT."  CONG.
GLOBE, 34TH CONG., 3D SESS. 406.  REPRESENTATIVE WASHBURN:  "THE SECOND
BE EXCUSED FROM ANSWERING A QUESTION FOR THE REASON THAT HIS ANSWER
WOULD CRIMINATE HIMSELF; AND PROVIDES THAT HE SHALL BE EXEMPT FROM
PUNISHMENT FOR ANY OFFENSE WHICH HE MAY TESTIFY THAT HE HAS COMMITTED,
AND THAT ON TRIAL FOR SUCH OFFENSE IN ANY COURT IN THE COUNTRY SUCH
EVIDENCE SHALL NOT BE USED AGAINST HIM."  ID. AT 428.  SENATOR SEWARD:
"THE SECOND SECTION OF THE BILL PROVIDES THAT SUCH PERSON SHALL HAVE
THE BENEFIT OF BEING EXEMPT FROM PROSECUTION AS TO THE MATTER
CONCERNING WHICH HE IS CALLED TO TESTIFY."  ID. AT 444.  IT MAY BE
POINTED OUT THAT SINCE THE STATUTE, AS ORIGINALLY ENACTED, HAD THE
EFFECT OF GRANTING TOTAL IMMUNITY FROM PROSECUTION FOR ANY FACT OR ACT
TOUCHING WHICH THE WITNESS TESTIFIED, ADOPTION OF RESPONDENT'S
CONTENTION WOULD MEAN THAT CONGRESS ORIGINALLY INTENDED TO IMMUNIZE THE
WITNESS WHO STATES BEFORE THE COMMITTEE THAT HE WILL NOT ANSWER
QUESTIONS OR PRODUCE PAPERS FROM ANY PROSECUTION FOR HIS DEFAULT. 

MR. JUSTICE FRANKFURTER AGREES WITH THIS OPINION EXCEPT AS TO THE
PORTION MARKED THIRD, INVOLVING THE APPLICABILITY OF SEC. 3486 OF TITLE
18 U.S.C. TO THE FACTS OF THIS CASE, WHICH REQUIRES HIM TO DISSENT FROM
THE JUDGMENT OF REVERSAL. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE JACKSON, CONCURRING. 

WITH THE RESULT I AM IN AGREEMENT, BUT I DO NOT SEE HOW THIS DECISION
AND THAT IN THE CHRISTOFFEL CASE, 338 U.S. 84, CAN COEXIST. 

THE COURT IS AGREED THAT THIS DEFENDANT COULD RIGHTLY DEMAND
ATTENDANCE OF A QUORUM OF THE COMMITTEE AND DECLINE TO TESTIFY OR TO
PRODUCE DOCUMENTS SO LONG AS A QUORUM WAS NOT PRESENT.  THEREFORE THE
REAL QUESTION HERE IS WHETHER, WITHOUT MAKING ANY DEMAND, THE ISSUE MAY
BE RAISED FOR THE FIRST TIME LONG AFTERWARDS IN A TRIAL FOR CONTEMPT. 

THIS CASE IS THE DUPLICATE OF CHRISTOFFEL IN THIS RESPECT:  IN BOTH
CASES DEFENDANTS HAVE SOUGHT TO RAISE THE QUESTION OF NO QUORUM FOR THE
FIRST TIME IN COURT, WHEN THEY ARE ON TRIAL FOR AN OFFENSE, WITHOUT
HAVING RAISED IT IN ANY MANNER BEFORE THE COMMITTEE WHILE THERE WAS
TIME TO REMEDY IT.  THE COURT IS NOW SAYING, QUITE PROPERLY I THINK,
THAT THIS QUESTION MUST BE RAISED AT THE TIME WHEN IT CAN BE CORRECTED,
AND PROPER RECORDS MADE, AND CANNOT BE KEPT AS AN ACE UP THE SLEEVE TO
BE PRODUCED YEARS LATER AT A TRIAL.  BUT IN CHRISTOFFEL, THE MAJORITY
TOOK THE OPPOSITE VIEW AND SAID, "IN A CRIMINAL CASE AFFECTING THE
RIGHTS OF ONE NOT A MEMBER, THE OCCASION OF TRIAL IS AN APPROPRIATE ONE
FOR PETITIONER TO RAISE THE QUESTION."  SUPRA, AT 88.  IF THIS
STATEMENT OF THE LAW IS TO BE LEFT STANDING, I DO NOT SEE HOW WE CAN
SAY THAT WHAT WAS TIMELY FOR CHRISTOFFEL IS TOO LATE FOR BRYAN.  IT IS
PLAIN WE ARE NOT FOLLOWING THE CHRISTOFFEL DECISION AND SO I THINK WE
SHOULD CANDIDLY OVERRULE IT. 

THE PRACTICE OF WITHHOLDING ALL OBJECTION UNTIL TIME OF TRIAL IS NOT
HELPFUL IN PROTECTING A WITNESS' RIGHT TO A VALID COMMITTEE.  IT
PREVENTS CORRECTION OF ANY ERROR IN THAT RESPECT AND PROFITS ONLY THE
WITNESS WHO SEEKS A CONCEALED DEFECT TO EXPLOIT.  CONGRESSIONAL CUSTOM,
WHETHER WRITTEN OR NOT, HAS ESTABLISHED THAT COMMITTEE MEMBERS MAY
INDULGE IN TEMPORARY ABSENCES, UNLESS THERE IS OBJECTION, WITHOUT
DISABLING THOSE REMAINING FROM CONTINUING WORK AS A COMMITTEE.  MEMBERS
MAY STEP OUT TO INTERVIEW CONSTITUENTS, CONSULT MEMBERS OF THEIR
STAFFS, CONFER WITH EACH OTHER, DICTATE A LETTER, OR VISIT A WASHROOM,
WITHOUT PUTTING AN END TO THE COMMITTEE - BUT ALWAYS SUBJECT TO CALL
WHENEVER THE POINT OF NO QUORUM IS RAISED; THAT IS NOTICE THAT SOMEONE
DEEMS THEIR PERSONAL PRESENCE IMPORTANT.  THIS IS THE CUSTOM
CHRISTOFFEL, IN EFFECT, DENIED TO MEMBERS OF CONGRESS.  A MEMBER NOW
STEPS OUT OF A COMMITTEE ROOM AT RISK OF NULLIFYING THE WHOLE
PROCEEDING. 

IT IS IRONIC THAT THIS INTERFERENCE WITH LEGISLATIVE PROCEDURES WAS
PROMULGATED BY EXERCISE WITHIN THE COURT OF THE VERY RIGHT OF ABSENTEE
PARTICIPATION DENIED TO CONGRESSMEN.  EXAMINATION OF OUR JOURNAL ON THE
DAY CHRISTOFFEL WAS HANDED DOWN SHOWS ONLY EIGHT JUSTICES PRESENT AND
THAT FOUR JUSTICES DISSENTED IN THAT CASE.  THE PREVAILING OPINION DOES
NOT EXPRESSLY INDICATE THE JUSTICES WHO JOINED IN IT, BUT ONLY FOUR
NONDISSENTING JUSTICES WERE PRESENT TO DO SO.  ON THE RECORD THIS WOULD
SHOW ONLY AN EQUALLY DIVIDED COURT, WHICH WOULD AFFIRM THE JUDGMENT
BELOW.  THE ONLY WAY THE FOUR WHO WERE PRESENT AND FOR A REVERSAL COULD
HAVE PREVAILED WAS BY COUNTING FOR IT ONE SHOWN BY THE RECORD TO BE
ABSENT.  THERE IS NOT EVEN ANY PUBLIC RECORD TO SHOW THAT IN ABSENTIA
HE JOINED THE DECISION, OR APPROVED THE FINAL OPINION, OR CONSIDERED
THE MATTER AFTER THE DISSENT WAS CIRCULATED; NOR IS THERE ANY WRITTEN
RULE OR LAW WHICH PERMITTED HIM TO DO SO.    I WANT TO MAKE IT CLEAR
THAT I AM NOT CRITICIZING ANY JUSTICE OR SUGGESTING THE SLIGHTEST
IRREGULARITY IN WHAT WAS DONE.  I HAVE NO DOUBT THAT AUTHORIZATION TO
INCLUDE THE ABSENT JUSTICE WAS GIVEN; AND I KNOW THAT TO VOTE AND BE
COUNTED IN ABSENTIA HAS BEEN SANCTIONED BY PRACTICE AND WAS WITHOUT
OBJECTION BY ANYONE.  IT IS THE FACT THAT IT IS STRICTLY REGULAR AND
CUSTOMARY, ACCORDING TO OUR UNWRITTEN PRACTICE, TO COUNT AS PRESENT FOR
PURPOSES OF COURT ACTION ONE PHYSICALLY ABSENT THAT MAKES THE DENIAL OF
A COMPARABLE PRACTICE IN CONGRESS SO ANOMALOUS.  OF COURSE, THERE IS
THIS DIFFERENCE:  THE ABSENT CONGRESSMAN WAS ONLY NECESSARY TO A
QUORUM; THE ABSENT JUSTICE WAS NECESSARY TO A DECISION.  NO COMMITTEE
ACTION WAS DEPENDENT UPON THE REPRESENTATIVES PRESUMED TO BE ABSENT IN
THE CHRISTOFFEL CASE.  ALL THEY COULD HAVE DONE IF PRESENT WAS TO
LISTEN.  IN OUR OWN CASE, PERSONAL JUDGMENT AND AFFIRMATIVE ACTION OF
THE ABSENT MEMBER WAS NECESSARY TO MAKE THE CHRISTOFFEL OPINION A
DECISION OF THE COURT. 

THE RULING OF THE COURT TODAY SEEMS IRRECONCILABLE WITH THE COURT'S
DECISION IN THAT CASE.  TRUE, THE INK ON CHRISTOFFEL IS HARDLY DRY. 
BUT THE PRINCIPLE OF STARE DECISIS, WHICH I THINK SHOULD BE THE NORMAL
PRINCIPLE OF JUDICIAL ACTION, IS NOT WELL SERVED BY FAILING TO MAKE
EXPLICIT AN OVERRULING WHICH IS IMPLICIT IN A LATER DECISION.  UNLESS
WE REALLY ACCEDE TO ITS AUTHORITY, IT WERE FAR BETTER TO UNDO
CHRISTOFFEL BEFORE IT BECOMES EMBEDDED IN THE LAW AS A MISLEADING
INFLUENCE WITH THE PROFESSION.  OF COURSE, IT IS EMBARRASSING TO
CONFESS A BLUNDER; IT MAY PROVE MORE EMBARRASSING TO ADHERE TO IT.  IN
VIEW OF THE HOLDING TODAY, I THINK THAT THE DECISION IN THE CHRISTOFFEL
CASE SHOULD BE FORTHRIGHTLY AND ARTLESSLY OVERRULED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING. 

18 U.S.C. SEC. 3486 PROVIDES THAT NO TESTIMONY GIVEN BY A WITNESS
BEFORE ANY COMMITTEE OF EITHER HOUSE "SHALL BE USED AS EVIDENCE IN ANY
CRIMINAL PROCEEDING AGAINST HIM IN ANY COURT, EXCEPT IN A PROSECUTION
FOR PERJURY COMMITTED IN GIVING SUCH TESTIMONY."  THE COURT ADMITS THAT
USE OF SUCH TESTIMONY IN CONVICTING BRYAN FOR WILFUL FAILURE TO PRODUCE
RECORDS VIOLATED THE "LITERAL LANGUAGE" OF SEC. 3486, BUT DECLINES TO
GIVE EFFECT TO THAT LANGUAGE.  I DISSENT FROM THE COURT'S REFUSAL TO
ABIDE BY THIS CONGRESSIONAL MANDATE. 

THE STATUTORY EXCEPTION OF "PROSECUTION FOR PERJURY" SHOWS THAT THE
ATTENTION OF CONGRESS WAS FOCUSED ON WHETHER COMMITTEE TESTIMONY SHOULD
BE ADMISSIBLE IN ANY SPECIAL TYPE OF CRIMINAL PROSECUTION.  YET THE
COURT NOW READS THE STATUTE AS IF CONGRESS HAD FORBIDDEN THE USE OF
COMMITTEE TESTIMONY "EXCEPT IN A PROSECUTION FOR PERJURY OR FOR FAILURE
TO PRODUCE RECORDS."  SUCH EXTENSIVE JUDICIAL LAW-MAKING IS
PARTICULARLY QUESTIONABLE WHEN USED TO RESTRICT SAFEGUARDS ACCORDED
DEFENDANTS IN CRIMINAL CASES.  MOREOVER, THIS STATUTE SPRINGS FROM
CONGRESS'S RECOGNITION OF THE CONSTITUTIONAL PRIVILEGE AGAINST
COMPULSORY SELF-INCRIMINATION.  THE COURT'S NARROWING OF THE STATUTE
MARKS A RADICAL DEPARTURE FROM THE PRINCIPLE UNDERLYING PREVIOUS
INTERPRETATIONS OF OTHER IMMUNITY LEGISLATION.  SMITH V. UNITED STATES,
337 U.S. 137; UNITED STATES V. MONIA, 317 U.S. 424. 

THE REASONS GIVEN BY THE COURT FOR ITS AMENDMENT OF THE STATUTE HAVE
AN ANOMALOUS BASIS:  THE COURT FEELS COMPELLED TO ALTER THE CLEAR
LANGUAGE OF SEC. 3486 IN ORDER NOT TO "SUBVERT THE CONGRESSIONAL
PURPOSE" WHICH IT ADMITS HAS ALREADY BEEN IRREVOCABLY FRUSTRATED BY THE
DECISION IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547. 

MOREOVER, THE STATUTORY LANGUAGE IS SO CLEAR AND PRECISE THAT DUBIOUS
LEGISLATIVE HISTORY CANNOT CONTRADICT IT.  AND NO PART OF THAT HISTORY
EVEN TENDS TO SHOW THAT CONGRESS MEANT TO PERMIT USE OF A WITNESS'
TESTIMONY TO CONVICT HIM OF ANY CRIME OTHER THAN PERJURY.  THERE IS A
JUSTIFIABLE REASON FOR THE PERJURY EXCEPTION.  THE CRIME CONSISTS OF
THE TESTIMONY ITSELF, WITHOUT WHICH NO PROSECUTION WOULD BE POSSIBLE. 
NOT SO WITH DEFAULT IN PRODUCING PAPERS.  THAT CRIME IS BASED NOT ON A
WITNESS'S TESTIMONY BUT RATHER ON HIS FAILURE TO PRODUCE - CONDUCT
WHICH CAN BE PROVED BY MEMBERS OF A COMMITTEE, CLERKS, OR SPECTATORS. 
THERE IS THEREFORE NO BASIS FOR SAYING THAT APPLICATION OF THE STATUTE
AS CONGRESS WROTE IT WOULD LEAD TO "ABSURD CONCLUSIONS" BY ENCOURAGING
THE "REFUSAL OF WITNESSES TO ANSWER QUESTIONS OR PRODUCE PAPERS." 

AS FOR OTHER ESSENTIAL ELEMENTS OF THE CRIME, SUCH AS POWER TO
PRODUCE, THEY CANNOT BE PROVED BY EVIDENCE EXTRACTED FROM A DEFENDANT
UNDER COMPULSION.  A WITNESS SUMMONED TO TESTIFY AND PRODUCE PAPERS IS
NO LESS ENTITLED TO INVOKE THE PROTECTION OF THIS STATUTE AND OF THE
FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION THAN IS ANY
OTHER DEFENDANT.  ONE WHO HAS FAILED TO PRODUCE CERTAINLY COULD NOT BE
COMPELLED TO ANSWER QUESTIONS CONCERNING HIS POWER TO PRODUCE, THEREBY
MAKING HIM A "WITNESS AGAINST HIMSELF."  IF APPLICATION OF THE STATUTE
AS CONGRESS WROTE IT WOULD LEAD TO "ABSURD CONCLUSIONS," SO WOULD THE
FIFTH AMENDMENT. 

THE COURT FINDS COMFORT IN THE STATEMENT THAT THE COMMITTEE TESTIMONY
OF WITNESSES IS "UNIFORMLY PRINTED IN THE REPORTS OF COMMITTEES
RECOMMENDING CONTEMPT ACTION" TO THE HOUSES OF CONGRESS.  HOWEVER
EXTENSIVE THIS PRACTICE MAY BE, IT WOULD NOT JUSTIFY THE USE OF SUCH
EVIDENCE IN A CRIMINAL TRIAL.  BY ITS OWN TERMS 18 U.S.C. SEC. 3486 IS
EXPRESSLY LIMITED TO "ANY CRIMINAL PROCEEDING  ...  IN ANY COURT." 
FN1 

FOR THESE REASONS THE JUDGMENT SHOULD BE REVERSED AND THE CAUSE
REMANDED FOR A NEW TRIAL. 

FN1  THIS DISTINCTION BETWEEN CRIMINAL TRIALS AND CONTEMPT
PROCEEDINGS AT THE BAR OF CONGRESS IS EMINENTLY REASONABLE IN VIEW OF
THE PRACTICAL DIFFERENCES BETWEEN THE TWO.  SEE DISSENTING OPINION IN
UNITED STATES V. FLEISCHMAN, POST, P. 349.  FOR A DISCUSSION OF
CONGRESSIONAL CONTEMPT PROCEDURES, SEE EBERLING, CONGRESSIONAL
INVESTIGATIONS 179 AND PASSIM (COLUMBIA UNIVERSITY PRESS, 1928). 
..END :








UNITED STATES V. FLEISCHMAN, 339 U.S. 349 


NO. 98.  ARGUED DECEMBER 15, 1949.  - DECIDED MAY 8, 1950.  - 84 U.S.
APP. D.C. 388, 174 F.2D 519, REVERSED. 


RESPONDENT WAS A MEMBER OF THE EXECUTIVE BOARD OF AN ASSOCIATION WHICH
WAS UNDER INVESTIGATION BY THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF
THE HOUSE OF REPRESENTATIVES.  THE COMMITTEE ISSUED SUBPOENAS TO EACH
OF THE MEMBERS OF THE EXECUTIVE BOARD, DEMANDING THAT THEY PRODUCE IN
THE COMMITTEE ROOM AT A STATED TIME CERTAIN OF THE ASSOCIATION'S
RECORDS WHICH WERE IN THE CUSTODY OF THE EXECUTIVE SECRETARY OF THE
ASSOCIATION.  THE MEMBERS OF THE EXECUTIVE BOARD, ACTING TOGETHER, HAD
POWER TO DIRECT THE EXECUTIVE SECRETARY TO PRODUCE THE RECORDS AND TO
REMOVE HER FROM OFFICE; BUT THEY HELD NO MEETING TO CONSIDER COMPLIANCE
WITH THE SUBPOENA.  THEY APPEARED IN RESPONSE TO THE SUBPOENAS BUT THE
RECORDS WERE NOT PRODUCED.  IN IDENTICAL PREPARED STATEMENTS TO THE
COMMITTEE, EACH ASSERTED THAT HE DID NOT INDIVIDUALLY HAVE CUSTODY OF
THE RECORDS AND WAS THEREFORE UNABLE TO COMPLY WITH THE SUBPOENA. 
ASKED WHETHER SHE PERSONALLY WOULD PERMIT THE COMMITTEE TO SEE THE
BOOKS, RESPONDENT ANSWERED:  "I DON'T THINK IT IS PERTINENT TO SAY WHAT
I SHOULD DO A WEEK FROM NOW."  SHE WAS INDICTED, TRIED AND CONVICTED
FOR WILLFUL DEFAULT UNDER R.S. SEC. 102, 2 U.S.C. SEC. 192.  HELD: 

1.  THE QUESTION OF THE LACK OF A QUORUM OF THE COMMITTEE, RAISED FOR
THE FIRST TIME AT THE TRIAL, AND THE QUESTION OF THE ADMISSIBILITY OF
TESTIMONY GIVEN BEFORE THE COMMITTEE AT THE TRIAL FOR WILLFUL DEFAULT,
ARE GOVERNED BY THE DECISION IN UNITED STATES V. BRYAN, ANTE, P. 323. 
P. 352. 

2.  THE FACT THAT RESPONDENT HAD NO INDIVIDUAL CONTROL OVER THE
RECORDS WAS NO DEFENSE.  PP. 356-358. 

(A)  WHEN ONE ACCEPTS AN OFFICE OF JOINT RESPONSIBILITY, IN WHICH
COMPLIANCE WITH LAWFUL ORDERS REQUIRES JOINT ACTION BY THE BODY OF
WHICH HE IS A MEMBER, HE NECESSARILY ASSUMES AN INDIVIDUAL
RESPONSIBILITY TO ACT, WITHIN THE LIMITS OF HIS POWER, TO BRING ABOUT
COMPLIANCE WITH SUCH AN ORDER.  PP. 356-357. 

(B)  THE FACT THAT THE ORGANIZATION HERE INVOLVED WAS AN
UNINCORPORATED ASSOCIATION RATHER THAN A CORPORATION IS IMMATERIAL.  P.
358. 

3.  AFTER INTRODUCING EVIDENCE THAT THE EXECUTIVE BOARD HAD POWER TO
PRODUCE THE RECORDS AND THAT IT HAD NOT DONE SO, THE GOVERNMENT DID NOT
HAVE THE FURTHER BURDEN OF PROVING THAT EACH INDIVIDUAL MEMBER HAD NOT
DONE THAT WHICH WAS WITHIN HIS POWER TO BRING ABOUT COMPLIANCE WITH THE
COMMITTEE'S ORDER.  PP. 358-364. 

(A)  THE DOCTRINE THAT IT IS NOT INCUMBENT ON THE PROSECUTION TO
ADDUCE POSITIVE EVIDENCE TO SUPPORT A NEGATIVE AVERMENT THE TRUTH OF
WHICH IS FAIRLY INDICATED BY ESTABLISHED CIRCUMSTANCES AND WHICH IF
UNTRUE COULD BE READILY DISPROVED BY THE PRODUCTION OF DOCUMENTS OR
OTHER EVIDENCE PROBABLY WITHIN THE DEFENDANT'S POSSESSION OR CONTROL,
IS APPLICABLE HERE.  PP. 360-361. 

(B)  IN THE ABSENCE OF EVIDENCE THAT RESPONDENT MADE SOME EFFORT TO
BRING ABOUT COMPLIANCE WITH THE SUBPOENA OR HAD SOME EXCUSE FOR FAILING
TO DO SO, THE EVIDENCE ADDUCED BY THE GOVERNMENT AMPLY SUSTAINED THE
CONVICTION.  P. 364. 

4.  THE SUBPOENA WAS NOT DEFECTIVE BY REASON OF THE FACT THAT IT WAS
ADDRESSED NOT TO THE ASSOCIATION BY NAME BUT TO RESPONDENT AS A MEMBER
OF THE EXECUTIVE BOARD.  PP. 353-354, N. 4. 

UNITED STATES V. FLEISCHMAN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

RESPONDENT WAS CONVICTED OF WILLFUL DEFAULT UNDER R.S. SEC. 102, 2
U.S.C. SEC. 192, FOR FAILURE TO COMPLY WITH A SUBPOENA OF THE COMMITTEE
ON UN-AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES.  THE COURT
OF APPEALS REVERSED.  84 U.S. APP. D.C. 388, 174 F.2D 519.  THIS COURT
GRANTED CERTIORARI.  338 U.S. 846.  REVERSED, P. 365. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

RESPONDENT FLEISCHMAN IS A MEMBER OF THE EXECUTIVE BOARD OF AN
ORGANIZATION KNOWN AS THE JOINT ANTI-FASCIST REFUGEE COMMITTEE
(HEREINAFTER REFERRED TO AS THE ASSOCIATION), WHICH, DURING 1945 AND
1946, WAS UNDER INVESTIGATION BY THE HOUSE COMMITTEE ON UN-AMERICAN
ACTIVITIES.  IN FURTHERANCE OF ITS INVESTIGATION, THE COMMITTEE ISSUED
SUBPOENAS ON MARCH 29, 1946, TO EACH OF THE MEMBERS OF THE EXECUTIVE
BOARD AND TO HELEN R. BRYAN, THE EXECUTIVE SECRETARY OF THE
ASSOCIATION, DEMANDING THAT THEY PRODUCE CERTAIN OF THE ASSOCIATION'S
RECORDS IN THE COMMITTEE'S CHAMBER ON APRIL 4, 1946.  FLEISCHMAN AND
THE OTHER MEMBERS OF THE BOARD APPEARED ON THAT DATE IN RESPONSE TO THE
SUBPOENAS BUT DID NOT PRODUCE THE RECORDS.  THE COMMITTEE THEREUPON
REPORTED TO THE HOUSE THAT THE MEMBERS OF THE EXECUTIVE BOARD WERE IN
CONTEMPT OF THAT BODY.  AFTER DEBATE, THE HOUSE VOTED TO DIRECT THE
SPEAKER TO CERTIFY THE COMMITTEE'S REPORT TO THE UNITED STATES DISTRICT
ATTORNEY FOR LEGAL ACTION. 

RESPONDENT AND THE OTHER MEMBERS OF THE EXECUTIVE BOARD WERE JOINTLY
INDICTED FOR WILFUL DEFAULT UNDER R.S. SEC. 102,  FN1  BUT FLEISCHMAN
WAS TRIED SEPARATELY FROM THE OTHERS.  HER DEFENSE, LIKE THAT OF BRYAN,
FN2  CONSISTED IN PART IN THE CONTENTION THAT SHE COULD NOT BE GUILTY
OF WILFUL DEFAULT BECAUSE A QUORUM OF THE COMMITTEE HAD NOT BEEN
PRESENT WHEN SHE APPEARED IN RESPONSE TO THE SUBPOENA.  THE TRIAL COURT
WITHDREW THAT ISSUE FROM THE JURY, HOLDING "AS A MATTER OF LAW, THAT
THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES
WAS A VALIDLY CONSTITUTED COMMITTEE OF CONGRESS, AND WAS AT THE TIME OF
THE DEFENDANT'S APPEARANCE."  THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA REVERSED, ONE JUDGE DISSENTING, 84 U.S. APP. D.C. 388, 174
F.2D 519, ON THE GROUND THAT PRESENCE OF A QUORUM OF THE COMMITTEE AT
THE TIME OF RESPONDENT'S APPEARANCE WAS A MATERIAL QUESTION OF FACT FOR
THE JURY.  THE COURT ALSO DIVIDED ON THE QUESTION OF WHETHER THERE WAS
SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION, A MAJORITY HOLDING THE
EVIDENCE SUFFICIENT.  WE GRANTED A WRIT OF CERTIORARI, 338 U.S. 846, TO
CONSIDER THESE IMPORTANT QUESTIONS ARISING UNDER R.S. SEC. 102. 

THE QUORUM QUESTION IS GOVERNED BY OUR DECISION THIS DAY IN UNITED
STATES V. BRYAN, ANTE, P. 323.  LIKE BRYAN, RESPONDENT TESTIFIED BEFORE
THE COMMITTEE ON THE RETURN DAY OF THE SUBPOENA WITHOUT MAKING ANY
SUGGESTION OF LACK OF A QUORUM.  THAT ISSUE WAS RAISED FOR THE FIRST
TIME AT THE TRIAL, TWO YEARS AFTER HER APPEARANCE BEFORE THE COMMITTEE,
WHERE SHE HAD GIVEN OTHER REASONS FOR HER FAILURE TO PRODUCE THE
DOCUMENTS.  UNDER THE CIRCUMSTANCES DISCLOSED BY THIS RECORD, WE THINK
THE DEFENSE OF LACK OF QUORUM WAS NOT AVAILABLE TO HER. 

THE QUESTION OF THE ADMISSIBILITY OF HER TESTIMONY BEFORE THE HOUSE
COMMITTEE AT HER TRIAL FOR WILFUL DEFAULT IS LIKEWISE GOVERNED BY OUR
DECISION IN THE BRYAN CASE, WHERE WE HELD THAT R.S. SEC. 859, 18 U.S.C.
SEC. 3486, CANNOT BE READ TO PREVENT THE INTRODUCTION OF TESTIMONY OF
THIS KIND AT A TRIAL FOR WILFUL DEFAULT UNDER R.S. SEC. 102. 

THERE REMAINS THE QUESTION OF THE SUFFICIENCY OF THE EVIDENCE TO
SUPPORT THE VERDICT OF GUILT IN THIS CASE.  THAT EVIDENCE CONSISTED IN
PART OF THE RECORD OF THE COMMITTEE'S UNSUCCESSFUL EFFORTS OVER A
PERIOD OF FOUR MONTHS TO OBTAIN THE BOOKS AND PAPERS OF THE ASSOCIATION
FROM ITS CHAIRMAN AND EXECUTIVE SECRETARY, OF WHICH THERE IS EVIDENCE
OF RESPONDENT'S KNOWLEDGE.  FN3  OTHER EVIDENCE INTRODUCED MAY
REASONABLY BE TAKEN TO ESTABLISH THE FOLLOWING FACTS:  FOLLOWING ITS
UNSUCCESSFUL ATTEMPTS TO OBTAIN THE RECORDS FROM THE CHAIRMAN AND
EXECUTIVE SECRETARY, THE COMMITTEE ISSUED SUBPOENAS TO ALL SIXTEEN
MEMBERS OF THE EXECUTIVE BOARD OF THE ASSOCIATION, COMMANDING THEM TO
APPEAR ON APRIL 4, 1946, IN THE COMMITTEE'S CHAMBER, THERE TO PRODUCE
THE RECORDS.  THE SUBPOENA SERVED ON RESPONDENT WAS ADDRESSED TO HER AS
"A MEMBER OF THE EXECUTIVE BOARD OF THE JOINT ANTI-FASCIST REFUGEE
COMMITTEE."  FN4  THE BOARD HAD POWER, ITS MEMBERS ACTING JOINTLY, TO
DIRECT MISS BRYAN TO PRODUCE THE RECORDS, TO TRANSFER CUSTODY OF THE
DOCUMENTS TO SOME OTHER PERSON, OR TO REMOVE HER FROM OFFICE.  FN5  BUT
DURING THE INTERVAL BETWEEN MARCH 29, WHEN THE SUBPOENAS WERE ISSUED,
AND APRIL 4, WHEN ITS MEMBERS APPEARED BEFORE THE COMMITTEE, NO MEETING
OF THE EXECUTIVE BOARD WAS HELD TO DISCUSS COMPLIANCE.  A NUMBER OF
MEMBERS OF THE BOARD MET IN AN ATTORNEY'S OFFICE IN NEW YORK ON APRIL
2, WHEN HE GAVE TO EACH A TYPEWRITTEN STATEMENT TO READ TO THE
COMMITTEE. 

ALL OF THE MEMBERS WHO HAD BEEN SUBPOENAED APPEARED AT THE TIME AND
PLACE SPECIFIED IN THE SUBPOENAS.  NO ONE PRODUCED THE RECORDS.  EACH
OF THE SIXTEEN MEMBERS OF THE BOARD, INCLUDING RESPONDENT, READ OR
HANDED TO THE COMMITTEE THE IDENTICALLY WORDED STATEMENTS PREPARED BY
THE ASSOCIATION'S ATTORNEY.  THESE STATEMENTS READ: 

"I INDIVIDUALLY DO NOT HAVE POSSESSION, CUSTODY, OR CONTROL OVER ANY
OF THE MATERIAL REQUESTED IN THE SUBPENA WHICH WAS SERVED UPON ME.  THE
BOOKS, RECORDS, AND CORRESPONDENCE OF THE JOINT ANTI-FASCIST REFUGEE
COMMITTEE ARE IN THE POSSESSION, CUSTODY, AND CONTROL OF MISS HELEN R.
BRYAN, THE EXECUTIVE SECRETARY OF OUR ORGANIZATION, AND SHE IS THE
LEGAL CUSTODIAN OF THIS MATERIAL.  SINCE I DO NOT HAVE EITHER IN MY
POSSESSION, CUSTODY, OR CONTROL THE BOOKS, RECORDS, AND DOCUMENTS
DESCRIBED IN THE SUBPENA, I AM UNABLE TO COMPLY WITH YOUR ORDER TO
PRODUCE THEM." 

UPON BEING QUESTIONED BY THE COMMITTEE AS TO WHETHER SHE,
INDIVIDUALLY, WOULD GIVE HER CONSENT TO PRODUCTION OF THE BOOKS,
RESPONDENT'S ANSWER WAS THAT THAT QUESTION WAS "NOT PERTINENT"; THAT
SHE WOULD DECIDE ONLY AT A MEETING OF THE BOARD. 

RESPONDENT AND THE OTHER MEMBERS OF THE BOARD WERE JOINTLY INDICTED
ON A CHARGE THAT THEY "APPEARED BEFORE THE CONGRESSIONAL COMMITTEE IN
THE CITY OF WASHINGTON, DISTRICT OF COLUMBIA, ON APRIL 4, 1946, BUT
FAILED TO PRODUCE THE RECORDS CALLED FOR IN THE SUBPOENAS, AS THEY HAD
POWER TO DO, AND THEREBY WILFULLY MADE DEFAULT."  AS WE HAVE POINTED
OUT, THERE IS EVIDENCE TO SUPPORT THE CHARGE THAT THE RECORDS WERE
UNDER THE JOINT CONTROL OF THE MEMBERS OF THE EXECUTIVE BOARD AND THAT
THE INDIVIDUAL MEMBERS, ACTING TOGETHER, HAD POWER TO PRODUCE THEM.  IT
IS CONTENDED, HOWEVER, THAT RESPONDENT (IN THIS RESPECT NO DIFFERENT
FROM ANY OTHER MEMBER) HAD NO INDIVIDUAL CONTROL OVER THE RECORDS, AND
THAT THERE IS THUS NO EVIDENCE THAT THE NONPRODUCTION OF THE RECORDS
RESULTED FROM ANYTHING SHE PERSONALLY DID OR OMITTED TO DO. 

IT SEEMS ELEMENTARY THAT THE ONLY MANNER BY WHICH A DUTY REQUIRING
THE JOINT PARTICIPATION OF SEVERAL PERSONS MAY BE PERFORMED IS BY A
COMBINATION OF INDIVIDUAL PERFORMANCES.  AND CONVERSELY, THE FAILURE TO
PERFORM SUCH A DUTY IS THE RESULT OF A FAILURE BY SOME OR ALL OF THE
PERSONS WHO HAVE BEEN ORDERED TO ACT TOGETHER TO DISCHARGE THEIR
RESPONSIBILITIES.  THIS FAILURE IS NOT NECESSARILY THE RESULT OF A
CONSPIRACY, WHICH PREMISES AN AGREEMENT OF SOME KIND.  ONE MAY, EITHER
ALONE OR IN CONCERT WITH OTHERS, FAIL TO PERFORM HIS INDIVIDUAL PART OF
A TASK REQUIRING JOINT PARTICIPATION. 

WHEN ONE ACCEPTS AN OFFICE OF JOINT RESPONSIBILITY, WHETHER ON A
BOARD OF DIRECTORS OF A CORPORATION, THE GOVERNING BOARD OF A
MUNICIPALITY, OR ANY OTHER POSITION IN WHICH COMPLIANCE WITH LAWFUL
ORDERS REQUIRES JOINT ACTION BY A RESPONSIBLE BODY OF WHICH HE IS A
MEMBER, HE NECESSARILY ASSUMES AN INDIVIDUAL RESPONSIBILITY TO ACT,
WITHIN THE LIMITS OF HIS POWER TO DO SO, TO BRING ABOUT COMPLIANCE WITH
THE ORDER.  IT MAY BE THAT THE EFFORTS OF ONE MEMBER OF THE BOARD WILL
AVAIL NOTHING.  IF HE DOES ALL HE CAN, HE WILL NOT BE PUNISHED BECAUSE
OF THE RECALCITRANCE OF OTHERS.  COMMISSIONERS V. SELLEW, 99 U.S. 624,
627(1879).  BUT TO HOLD THAT, BECAUSE COMPLIANCE WITH AN ORDER DIRECTED
TO THE DIRECTORS OF A CORPORATION OR OTHER ORGANIZATION REQUIRES COMMON
ACTION BY SEVERAL PERSONS, NO ONE OF THEM IS INDIVIDUALLY RESPONSIBLE
FOR THE FAILURE OF THE ORGANIZATION TO COMPLY, IS EFFECTUALLY TO REMOVE
SUCH ORGANIZATIONS BEYOND THE REACH OF LEGISLATIVE AND JUDICIAL
COMMANDS.  THIS COURT AND THE STATE COURTS WHICH HAVE CONSIDERED THE
MATTER  FN6  HAVE ADOPTED A CONTRARY VIEW.  IN WILSON V. UNITED STATES,
221 U.S. 361(1911), MR. JUSTICE HUGHES STATED THE PROPOSITION THUS: 

"A COMMAND TO THE CORPORATION IS IN EFFECT A COMMAND TO THOSE WHO ARE
OFFICIALLY RESPONSIBLE FOR THE CONDUCT OF ITS AFFAIRS.  IF THEY,
APPRISED OF THE WRIT DIRECTED TO THE CORPORATION, PREVENT COMPLIANCE OR
FAIL TO TAKE APPROPRIATE ACTION WITHIN THEIR POWER FOR THE PERFORMANCE
OF THE CORPORATE DUTY, THEY, NO LESS THAN THE CORPORATION ITSELF, ARE
GUILTY OF DISOBEDIENCE AND MAY BE PUNISHED FOR CONTEMPT."  ID. AT 376. 
SEE ALSO COMMISSIONERS V. SELLEW, SUPRA.  FN7 

NOR IS A DISTINCTION TO BE DRAWN ON THE GROUND THAT A CORPORATION WAS
THERE INVOLVED WHILE THE JOINT ANTI-FASCIST REFUGEE COMMITTEE IS AN
UNINCORPORATED ASSOCIATION.  BROWN V. UNITED STATES, 276 U.S. 134, 141
142(1928), MAKES IT CLEAR THAT A SUBPOENA DIRECTED TO AN UNINCORPORATED
ASSOCIATION AND ITS OFFICERS IS EQUALLY VALID.  IF THE LEGISLATIVE
COMMITTEE HAD A RIGHT TO DEMAND THE RECORDS, THE DIRECTING OFFICERS OF
THE ASSOCIATION ARE QUITE AS RESPONSIBLE FOR THEIR PRODUCTION AS IF
THEY WERE CORPORATE OFFICERS.  CF. UNITED STATES V. WHITE, 322 U.S.
694(1944).  FN8 

THE QUESTION THAT REMAINS IS WHETHER, AFTER INTRODUCING EVIDENCE THAT
THE BOARD HAD POWER TO PRODUCE THE RECORDS, THAT IT HAD NOT DONE SO,
AND THAT EACH MEMBER OF THE BOARD HAD READ THE IDENTICAL STATEMENTS
QUOTED ABOVE AS HIS REASON FOR NONCOMPLIANCE, THE GOVERNMENT HAS THE
FURTHER BURDEN OF PROVING THAT EACH INDIVIDUAL MEMBER HAD NOT DONE THAT
WHICH WAS WITHIN HIS POWER TO BRING ABOUT COMPLIANCE WITH THE
COMMITTEE'S ORDER.  IT MAY WELL BE THAT RESPONDENT'S PREPARED STATEMENT
BEFORE THE COMMITTEE AND HER ANSWERS TO THE COMMITTEE'S QUESTIONS ARE
SUFFICIENT IN THEMSELVES TO SATISFY THAT REQUIREMENT.  FOR THEY
INDICATE CLEARLY THAT RESPONDENT HAD ASSUMED NO PERSONAL DUTY TO DO
ANYTHING.  THE PREPARED STATEMENT WAS, OF COURSE, A PATENT EVASION OF
THE COMMITTEE'S DEMANDS.  WHILE STATING THAT EACH MEMBER OF THE
EXECUTIVE BOARD INDIVIDUALLY DID NOT HAVE CONTROL OVER THE RECORDS, IT
DOES NOT DENY, AS IT COULD NOT, THAT THE MEMBERS HAD POWER JOINTLY TO
COMPLY WITH THE SUBPOENAS.  SINCE THE SUBPOENAS REQUIRED THAT THEY ACT
JOINTLY - THE PREVIOUS DEMANDS ON THE CHAIRMAN AND THE EXECUTIVE
SECRETARY INDIVIDUALLY HAVING BEEN OF NO AVAIL - THE STATEMENT THAT THE
MEMBERS INDIVIDUALLY HAD NO POWER TO COMPLY IS COMPLETELY IRRELEVANT. 

AND WHEN THE COMMITTEE ASKED RESPONDENT WHETHER SHE, PERSONALLY,
WOULD PERMIT THE COMMITTEE TO HAVE ACCESS TO THE BOOKS, HER ANSWER
AGAIN WAS AN EVASION.  SHE SAID:  "I DON'T THINK IT IS PERTINENT TO SAY
WHAT I SHOULD DO A WEEK FROM NOW." 

THE DIFFICULTY WITH THAT POSITION IS THAT IT IS NOT FOR HER NOR ANY
OTHER MEMBER OF THE BOARD TO SAY THAT SHE WOULD MAKE UP HER MIND NEXT
WEEK.  THE RETURN DAY OF THE SUBPOENA HAD ARRIVED.  NO ONE SO MUCH AS
HINTED THAT THERE HAD BEEN NO TIME TO ACT.  THE MEMBERS HAD GATHERED IN
AN ATTORNEY'S OFFICE ON APRIL 2, WHEN THEY RECEIVED THEIR STATEMENTS. 
THERE WAS EVIDENCE THAT SOME MEMBERS HAD GATHERED INFORMALLY ELSEWHERE
TO DISCUSS THE QUESTION OF COMPLIANCE.  IN FACT ALL WERE PRESENT IN THE
ANTEROOM OF THE COMMITTEE'S CHAMBER ON THE MORNING OF APRIL 4.  IF
THERE HAD BEEN THE SLIGHTEST BENT TOWARD COMPLIANCE, THE OPPORTUNITIES
WERE THERE.  WHEN RESPONDENT APPEARED BEFORE THE COMMITTEE, SHE WAS
ASKED IN EFFECT, AS OF THAT TIME, WHETHER SHE WAS A PARTY TO THE JOINT
REFUSAL TO PRODUCE THE RECORDS:  "WOULD YOU NOW, RIGHT HERE NOW, GIVE
YOUR CONSENT TO THIS COMMITTEE TO (SEE THE BOOKS AND RECORDS)?"  AS ONE
OF THE MEMBERS OF THE COMMITTEE STATED TO RESPONDENT:  "THAT IS THE
MAIN THING, THE WHOLE CASE."  HER ANSWER WAS NO ANSWER. 

IT MAY BE ARGUED, HOWEVER, THAT RESPONDENT MAY HAVE ADOPTED THE
POSITION OF THE OTHER MEMBERS OF THE BOARD ONLY AFTER SHE HAD TRIED IN
GOOD FAITH TO BRING ABOUT COMPLIANCE WITH THE SUBPOENA.  OR PERHAPS SHE
HAD BEEN ILL OR NECESSARILY OUT OF TOWN IMMEDIATELY PRIOR TO APRIL 4. 
GRANTING THAT THESE OR OTHER EXCUSES FOR NONACTION MAY EXIST, MUST THE
GOVERNMENT NEGATIVE EACH, OR WAS THE BURDEN ON RESPONDENT TO ADVANCE
THEM AS DEFENSIVE MATTER? 

WE THINK THAT THE CIRCUMSTANCES OF THIS CASE FAIRLY BRING INTO PLAY
THE FAMILIAR DOCTRINE IN CRIMINAL CASES THAT "IT IS NOT INCUMBENT ON
THE PROSECUTION TO ADDUCE POSITIVE EVIDENCE TO SUPPORT A NEGATIVE
AVERMENT THE TRUTH OF WHICH IS FAIRLY INDICATED BY ESTABLISHED
CIRCUMSTANCES AND WHICH IF UNTRUE COULD BE READILY DISPROVED BY THE
PRODUCTION OF DOCUMENTS OR OTHER EVIDENCE PROBABLY WITHIN THE
DEFENDANT'S POSSESSION OR CONTROL."  ROSSI V. UNITED STATES, 289 U.S.
89, 91-92(1933), AND AUTHORITIES CITED.  THE CONSIDERATIONS THAT GOVERN
THIS QUESTION HAVE BEEN WELL STATED BY MR. JUSTICE CARDOZO IN
DISCUSSING A SIMILAR QUESTION - THE CONSTITUTIONALITY OF A STATUTE
WHICH SHIFTED THE BURDEN OF PROOF IN A CRIMINAL PROSECUTION TO THE
DEFENDANT.  HE SAID:    "THE DECISIONS ARE MANIFOLD THAT WITHIN LIMITS
OF REASON AND FAIRNESS THE BURDEN OF PROOF MAY BE LIFTED FROM THE STATE
IN CRIMINAL PROSECUTIONS AND CAST ON A DEFENDANT.  THE LIMITS ARE IN
SUBSTANCE THESE, THAT THE STATE SHALL HAVE PROVED ENOUGH TO MAKE IT
JUST FOR THE DEFENDANT TO BE REQUIRED TO REPEL WHAT HAS BEEN PROVED
WITH EXCUSE OR EXPLANATION, OR AT LEAST THAT UPON A BALANCING OF
CONVENIENCE OR OF THE OPPORTUNITIES FOR KNOWLEDGE THE SHIFTING OF THE
BURDEN WILL BE FOUND TO BE AN AID TO THE ACCUSER WITHOUT SUBJECTING THE
ACCUSED TO HARDSHIP OR OPPRESSION. 

     .         .         .         .         . 

"  ...  FOR A TRANSFER OF THE BURDEN, EXPERIENCE MUST TEACH THAT THE
EVIDENCE HELD TO BE INCULPATORY HAS AT LEAST A SINISTER SIGNIFICANCE
...  , OR IF THIS AT TIMES BE LACKING, THERE MUST BE IN ANY EVENT A
MANIFEST DISPARITY IN CONVENIENCE OF PROOF AND OPPORTUNITY FOR
KNOWLEDGE, AS, FOR INSTANCE, WHERE A GENERAL PROHIBITION IS APPLICABLE
TO EVERY ONE WHO IS UNABLE TO BRING HIMSELF WITHIN THE RANGE OF AN
EXCEPTION.  GREENLEAF, EVIDENCE, VOL. 1, SEC. 79* .  THE LIST IS NOT
EXHAUSTIVE.  OTHER INSTANCES MAY HAVE ARISEN OR MAY DEVELOP IN THE
FUTURE WHERE THE BALANCE OF CONVENIENCE CAN BE REDRESSED WITHOUT
OPPRESSION TO THE DEFENDANT THROUGH THE SAME PROCEDURAL EXPEDIENT.  THE
DECISIVE CONSIDERATIONS ARE TOO VARIABLE, TOO MUCH DISTINCTIONS OF
DEGREE, TOO DEPENDENT IN LAST ANALYSIS UPON A COMMON SENSE ESTIMATE OF
FAIRNESS OR OF FACILITIES OF PROOF, TO BE CROWDED INTO A FORMULA.  ONE
CAN DO NO MORE THAN ADUMBRATE THEM; SHARPER DEFINITION MUST AWAIT THE
SPECIFIC CASE AS IT ARISES."  MORRISON V. CALIFORNIA, 291 U.S. 82, 88
91(1934).  FN9 

*THE COURT'S FOOTNOTE READS:  "INSTANCES OF THE APPLICATION OF THIS
PRINCIPLE CAN BE CITED IN PROFUSION.  THE CASES THAT FOLLOW ARE TYPICAL
EXAMPLES:  KING V. TURNER, 5 MAU.  & SEL.  206, WHERE A DEFENDANT
HAVING GAME IN HIS POSSESSION IN VIOLATION OF A STATUTE WHEREBY
POSSESSION WAS GENERALLY A CRIME, WAS HELD TO HAVE THE BURDEN OF
PROVING HIS SPECIAL QUALIFICATIONS (CF. YEE HEM V. UNITED STATES, (268
U.S. 178); ALSO SPIERES V. PARKER, 1 T.R. 144, PER LORD MANSFIELD);
FLEMING V. PEOPLE, 27 N.Y. 329, A PROSECUTION FOR BIGAMY, WHERE ON
PROOF THAT THE DEFENDANT HAD CONTRACTED A SECOND MARRIAGE DURING THE
LIFETIME OF HIS FIRST WIFE, THE BURDEN WAS LAID UPON HIM TO PROVE
EXCEPTIONAL CIRCUMSTANCES THAT WOULD HAVE MADE THE MARRIAGE LAWFUL; AND
FINALLY SUCH CASES AS POTTER V. DEYO, 19 WEND.  361, 363, AND UNITED
STATES V. TURNER, 266 FED. 248(TYPICAL OF A HOST OF OTHERS) WHERE A
DEFENDANT HAS BEEN SUBJECTED TO THE BURDEN OF PRODUCING A LICENSE OR A
PERMIT FOR A BUSINESS OR PROFESSION THAT WOULD OTHERWISE BE ILLEGAL. 
CF. UNITED STATES V. HAYWARD, 26 FED. CAS. 240; BOARD OF COMM'RS V.
MERCHANT, 103 N.Y. 143; 8 N.E. 484." 

IN THIS SITUATION, MANIFESTLY, THE PROSECUTION IS UNDER A SERIOUS
PRACTICAL HANDICAP IF IT MUST PROVE THE NEGATIVE PROPOSITION - THAT
RESPONDENT DID NOT OR HAD NO GOOD REASON FOR FAILING TO TRY TO COMPLY
WITH THE SUBPOENA INSOFAR AS SHE WAS ABLE.  THE POSSIBILITIES OF TIME
AND CIRCUMSTANCE ARE OF SUCH WIDE RANGE AS TO DEFY INCLUSIVE REBUTTAL. 
ON THE OTHER HAND, THE BURDEN OF THE AFFIRMATIVE WAS NOT AN OPPRESSIVE
ONE FOR RESPONDENT TO UNDERTAKE; THE RELEVANT FACTS ARE PECULIARLY
WITHIN HER KNOWLEDGE.  SHE WAS CALLED UPON MERELY TO INTRODUCE EVIDENCE
AS TO WHAT STEPS SHE TOOK AFTER RECEIVING THE SUBPOENA, OR, IF SHE TOOK
NO ACTION, ANY EVIDENCE TENDING TO EXCUSE HER OMISSION.  RESPONDENT
DOES NOT LOSE THE PRESUMPTION OF INNOCENCE THAT SURROUNDS THE DEFENDANT
IN A CRIMINAL PROSECUTION.  THAT PRESUMPTION CONTINUES TO OPERATE UNTIL
OVERCOME BY PROOF OF GUILT BEYOND A REASONABLE DOUBT AND IS NOT TO BE
CONFUSED WITH BURDEN OF PROOF, WHICH IS A RULE AFFECTING MERELY THE
TIME AND MANNER OF PROOF.  SEE 1 WHARTON, CRIMINAL EVIDENCE (11TH ED.) 
SECS. 199-204.  FN10 

EVEN THOUGH WE ASSUME, THEREFORE, CONTRARY TO THE REASONABLE
INFERENCES TO BE DRAWN FROM RESPONDENT'S STATEMENTS BEFORE THE
COMMITTEE, THAT SHE MAY HAVE MADE SOME EFFORT TO BRING ABOUT COMPLIANCE
WITH THE SUBPOENA, OR HAD SOME EXCUSE FOR FAILING TO DO SO, WE THINK
THAT UNDER THE CIRCUMSTANCES HERE PRESENTED THE BURDEN WAS UPON HER TO
PRESENT EVIDENCE TO SUSTAIN SUCH A DEFENSE.  AND, IN THE ABSENCE OF
SUCH EVIDENCE, WE CONCLUDE THAT THE EVIDENCE ADDUCED BY THE GOVERNMENT
AMPLY SUSTAINS THE CONVICTION.  RESPONDENT IS NO MORE OR LESS GUILTY
THAN ANY OTHER MEMBER OF THE BOARD.  IF SHE CAN ESCAPE PROSECUTION BY
REMAINING QUIESCENT, SO CAN ALL THE OTHERS.  IF HERS IS A VALID
DEFENSE, THEN ALL THAT THE DIRECTORS OF A CORPORATION NEED DO WHEN THEY
AND THE CORPORATION ARE SERVED WITH SUBPOENAS IS TO REFRAIN FROM
DISCUSSING COMPLIANCE WITH THE ORDER.  NO ONE NEED MAKE ANY ATTEMPT TO
COMPLY, FOR NONE OF THEM "INDIVIDUALLY" HAS CONTROL OVER THE ACTION -
OR NONACTION - OF THE CORPORATION.  A STRATAGEM SO TRANSPARENT DOES NOT
CAST A SHADOW OF SUBSTANCE.  FN11 

IT SHOULD BE EMPHASIZED THAT WE ARE NOT DEALING WITH THE DUTIES OF
WITNESSES SUMMONED BY ONE COMMITTEE BUT WITH THE OBLIGATIONS OWED BY
PERSONS SUMMONED BY AUTHORITY OF THE SENATE OR HOUSE OF REPRESENTATIVES
TO APPEAR BEFORE ANY PERSON OR GROUP DESIGNATED BY THAT AUTHORITY. 
REFORMS IN THE PRACTICES AND PROCEDURES OF CERTAIN COMMITTEES ARE
VIGOROUSLY DEMANDED BY PERSONS BOTH WITHIN AND WITHOUT CONGRESS.  WE
WOULD NOT BE UNDERSTOOD IN THIS CASE AS EXPRESSING EITHER APPROVAL OR
DISAPPROVAL OF THOSE PRACTICES.  BUT THE REMEDY, IF ANY IS NEEDED, IS
CERTAINLY NOT TO DESTROY THE EFFECTIVE OPERATION OF ALL COMMITTEES,
WHICH IS THE NECESSARY RESULT IF THEY CANNOT COMPEL THE DISCLOSURE OF
FACTS.  A SUBPOENA IS A STERILE DOCUMENT IF ITS ORDERS MAY BE FLOUTED
WITH IMPUNITY. 

RESPONDENT ADVANCES A NUMBER OF CONTENTIONS WHICH WERE NOT PASSED
UPON BY THE COURT OF APPEALS.  WE DO NOT DECIDE THEM AT THIS TIME.  THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  11 STAT. 155, AS AMENDED, R.S. SEC. 102, 2 U.S.C. SEC. 192: 

"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 JOINT COMMITTEE
ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF
CONGRESS, 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 JAIL FOR NOT LESS THAN ONE MONTH NOR
MORE THAN TWELVE MONTHS." 

FN2  SEE UNITED STATES V. BRYAN, ANTE, P. 323. 

FN3  THIS EVIDENCE CONSISTED OF A RESOLUTION PASSED BY THE EXECUTIVE
BOARD ON DECEMBER 14, 1945, CONDEMNING THE COMMITTEE'S INVESTIGATION
AND DIRECTING MISS BRYAN TO CONSULT WITH AN ATTORNEY WITH A VIEW TOWARD
PROTECTING THE RECORDS FROM THE COMMITTEE, AND THE MINUTES OF A MEETING
OF FEBRUARY 11, 1946, AT WHICH THE EXECUTIVE BOARD VOTED TO INSTRUCT
DR. BARSKY NOT TO PRODUCE THE RECORDS BEFORE THE COMMITTEE, AS HE HAD
BEEN ORDERED TO DO.  WHILE RESPONDENT DID NOT PARTICIPATE IN EITHER OF
THESE ACTIONS, HER KNOWLEDGE OF THE COMMITTEE'S EFFORTS TO OBTAIN THE
RECORDS AND THE BOARD'S PREVIOUS ACTIONS WITH RESPECT THERETO WAS SHOWN
BY EVIDENCE OF HER ATTENDANCE OF A BOARD MEETING IN MARCH, 1946, WHEN
DR. BARSKY REPORTED CONCERNING HIS APPEARANCE BEFORE THE COMMITTEE ON
FEBRUARY 13, AND THE ASSOCIATION'S ATTORNEY WAS PRESENT AND TALKED TO
THE BOARD ABOUT ITS LEGAL POSITION IN THE MATTER. 

FN4  THE SUBPOENA SERVED ON MRS. FLEISCHMAN READ AS FOLLOWS: 

"BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE
UNITED STATES OF AMERICA 

"TO THE SERGEANT AT ARMS, OR HIS SPECIAL MESSENGER: 

"YOU ARE HEREBY COMMANDED TO SUMMON MRS. ERNESTINA G. FLEISCHMAN,
'VOICE OF FIGHTING SPAIN', 1 COLUMBUS AVENUE, NEW YORK CITY, A MEMBER
OF THE EXECUTIVE BOARD OF THE JOINT ANTI-FASCIST REFUGEE COMMITTEE TO
BE AND APPEAR BEFORE THE UN-AMERICAN ACTIVITIES COMMITTEE OF THE HOUSE
OF REPRESENTATIVES OF THE UNITED STATES, OF WHICH THE HON. JOHN S. WOOD
IS CHAIRMAN, AND TO BRING WITH YOU ALL BOOKS, LEDGERS, RECORDS AND
PAPERS RELATING TO THE RECEIPT AND DISBURSEMENT OF MONEY BY OR ON
ACCOUNT OF THE JOINT ANTI-FASCIST REFUGEE COMMITTEE OR ANY SUBSIDIARY
OR SUB-COMMITTEE THEREOF, TOGETHER WITH ALL CORRESPONDENCE AND
MEMORANDA OF COMMUNICATIONS BY ANY MEANS WHATSOEVER WITH PERSONS IN
FOREIGN COUNTRIES.  THE SAID BOOKS, PAPERS AND RECORDS DEMANDED HEREIN
ARE FOR THE PERIOD FROM JANUARY 1, 1945 UP TO AND INCLUDING THE DATE OF
THIS SUBPOENA, IN THEIR CHAMBER IN THE CITY OF WASHINGTON, ON APRIL 4,
1946, AT THE HOUR OF 10:00 A.M. THEN AND THERE TO TESTIFY TOUCHING
MATTERS OF INQUIRY COMMITTED TO SAID COMMITTEE; AND (SHE) IS NOT TO
DEPART WITHOUT LEAVE OF SAID COMMITTEE. 

"HEREIN FAIL NOT, AND MAKE RETURN OF THIS SUMMONS.  ...  " 

IT IS NOW SUGGESTED THAT THIS SUBPOENA IS DEFECTIVE BECAUSE ADDRESSED
NOT TO THE ASSOCIATION BY NAME BUT TO RESPONDENT AS A MEMBER OF THE
EXECUTIVE BOARD OF THE ASSOCIATION, AND WILSON V. UNITED STATES, 221
U.S. 361(1911) AND COMMISSIONERS V. SELLEW, 99 U.S. 624(1879) ARE
DISTINGUISHED ON THAT GROUND.  WE CAN THINK OF NO CLEARER WAY OF
NOTIFYING RESPONDENT THAT SHE WAS REQUIRED TO PERFORM HER DUTY AS A
MEMBER OF THE GOVERNING BOARD OF THE ASSOCIATION THAN TO SERVE AN
INDIVIDUAL SUBPOENA UPON HER, ADDRESSED TO HER IN HER OFFICIAL CAPACITY
AS A MEMBER OF THE EXECUTIVE BOARD, AND CALLING FOR THE PRODUCTION OF
PAPERS WHICH SHE KNEW WERE UNDER THE CONTROL OF THE EXECUTIVE BOARD. 
THIS SUBPOENA MAKES EXPLICIT WHAT IS MERELY IMPLICIT IN SUBPOENAS
ADDRESSED TO AN ORGANIZATION BY NAME AND SERVED ON INDIVIDUAL
DIRECTORS, AS WAS DONE IN THE WILSON CASE. 

FN5  MRS. FLEISCHMAN'S TESTIMONY CONCERNING THE POWERS AND AUTHORITY
OF THE EXECUTIVE BOARD WAS AS FOLLOWS: 

"THE CHAIRMAN.  THERE ISN'T ANY OTHER AUTHORITY HIGHER THAN THE
EXECUTIVE BOARD? 

"MRS. FLEISCHMAN.  NO. 

"THE CHAIRMAN.  AND ON ALL MATTERS OF POLICY, DIRECTION OF THE
ACTIVITIES OF THE JOINT ANTI-FASCIST REFUGEE COMMITTEE, THE EXECUTIVE
BOARD IS THE HIGHEST AUTHORITY? 

"MRS. FLEISCHMAN.  YES. 

"THE CHAIRMAN.  NOW, AS A MEMBER OF THAT BOARD - YOU SAY YOU ARE A
MEMBER NOW? 

"MRS. FLEISCHMAN.  YES. 

"THE CHAIRMAN.  AS A MEMBER OF THAT BOARD ARE YOU NOW WILLING, SO FAR
AS YOU PERSONALLY ARE CONCERNED, AS A MEMBER OF THAT BOARD ARE YOU NOW
WILLING TO PERMIT THIS COMMITTEE OF CONGRESS TO SEE THOSE BOOKS AND
RECORDS CALLED FOR IN THAT SUBPENA? 

"MRS. FLEISCHMAN.  I DON'T KNOW WHAT I WOULD DO.  IT WOULD REQUIRE A
MEETING OF THE BOARD." 

THERE WAS ALSO TESTIMONY THAT THE BOARD HAD POWER TO TRANSFER CUSTODY
OF THE RECORDS FROM BRYAN TO SOME OTHER PERSON AND THAT, IN FACT, THE
VOTE AT THE FEBRUARY 11 MEETING HAD BEEN ON THAT VERY QUESTION. 

FN6 FOR APPLICATIONS OF THIS PRINCIPLE IN THE ANALOGOUS SITUATION
PRESENTED BY NONCOMPLIANCE WITH A MANDAMUS, SEE STATE V. CITY OF LIVE
OAK, 126 FLA. 132, 170 SO. 608(1936); LITTLEFIELD V. TOWN OF ADEL, 151
GA. 684, 108 S.E. 56(1921); SMITH V. LOTT, 156 GA. 590, 119 S.E.
400(1923); MCCULLOCH V. STATE, 174 IND. 525, 92 N.E. 543(1910); MIDDLE
STATES UTILITIES CO. V. CITY OF OSCEOLA, 231 IOWA 462, 1 N.W.2D
643(1942); KENTUCKY CULVERT MFG. CO. V. ELLIOTT COUNTY FISCAL COURT,
239 KY. 797, 40 S.W.2D 375(1931); STATE V. MINNEAPOLIS STREET R. CO.,
154 MINN. 401, 191 N.W. 1004(1923); HEATHER V. CITY OF PALMYRA, 317 MO.
1320, 298 S.W. 750(1927); COMMONWEALTH V. SCHMIDT, 287 PA. 150, 134 A.
478(1926); BUTLER COUNTY V. PITTSBURGH, H., B. & N.C.R. CO., 298 PA.
347, 148 A. 504(1929). 

FN7  IT IS SUGGESTED THAT THE WILSON CASE IS DISTINGUISHABLE BECAUSE
IT MAY BE INFERRED FROM THE FACT THAT, ACCORDING TO GOVERNMENT COUNSEL,
THE GOVERNMENT HAD BEEN AFTER THE RECORDS "IN ONE WAY OR ANOTHER" FOR
NEARLY A MONTH THAT THE SUBPOENAS DUCES TECUM SERVED UPON THE DIRECTORS
HAD BEEN SUPPLEMENTED BY ORAL ORDERS.  THERE IS NOT ONE WORD IN THE
WILSON RECORD THAT SUPPORTS SUCH AN INFERENCE.  ON THE CONTRARY, THE
GRAND JURY'S PRESENTMENT WAS NOT FOR FAILURE TO OBEY ANY ORAL COMMANDS
BUT "FOR FAILURE TO OBEY A CERTAIN SUBPOENA ISSUED OUT OF THIS COURT,
DATED OCTOBER 28, 1910."  VIDE THE FOLLOWING: 

"THE COURT:  WHAT IS THE PRESENTMENT PRECISELY? 

"MR. WISE (GOVERNMENT COUNSEL):  THE GRAND JURY PRESENTS THAT THE
CORPORATION IS IN CONTEMPT OF THIS COURT IN NOT OBEYING THE SUBPOENA,
THAT THESE GENTLEMEN ARE IN CONTEMPT OF COURT IN THAT THEY HAVE KNOWN
AND HAD ACTUAL NOTICE OF THE SUBPOENAS ISSUED TO THE CORPORATION
REQUIRING IT TO PRODUCE THESE BOOKS, AND IN DEFIANCE OF THIS COURT AND
OF ITS PROCESS HAVE FAILED TO TAKE ANY ACTION TO HAVE THEIR CORPORATION
COMPLY WITH THE PROCESS,  ...  " 

FN8  THE ARGUMENT THAT RESPONDENT WAS TRIED AND CONVICTED UPON A
THEORY DIFFERENT FROM THAT UPON WHICH THE EVIDENCE IS HERE FOUND
SUFFICIENT TO SUSTAIN THE CONVICTION IS REFUTED BY THE RECORD, WHICH IS
FULL OF DISCUSSION CONCERNING THE IMPORT OF THE WILSON CASE.  THE
FOLLOWING IS REPRESENTATIVE: 

"MR. ROGGE (COUNSEL FOR RESPONDENT):  ...  LET'S LOOK AT THE WILSON
CASE AGAIN, WHICH THE COURT OF APPEALS PASSED ON (IN BARSKY V. UNITED
STATES, 167 F.2D 241, 251).  IT SAYS IF YOUR MEMBERS HAVE THE RIGHT TO
DIRECT THE CORPORATION AND FAIL TO TAKE APPROPRIATE ACTION; IN ORDER TO
BE FREE OF GUILT HERE DID ERNESTINA HAVE TO BE A PROPAGANDIST AND GO TO
THE BOARD MEMBERS AND SAY BEFORE TAKING ACTION -    "THE COURT
(INTERPOSING):  WHEN SHE TAKES ON THE RESPONSIBILITY OF AN EXECUTIVE
BOARD MEMBER CERTAIN RESPONSIBILITIES FLOW ALONG WITH THAT WHEN SHE
DOES IT. 

"MR. ROGGE:  SHE IS A MEMBER OF THE EXECUTIVE BOARD.  THE EVIDENCE
HAS SHOWN THAT.  ... THE RECORD ALSO SHOWS THAT, WHAT YOU GET DOWN TO
IS THAT ERNESTINA, IN ORDER NOT TO BE GUILTY HERE, HAD TO SEE TO IT
THAT SOME SORT OF AN AFFIRMATIVE ACTION WAS TAKEN, AND I DO NOT THINK
THAT IS REQUIRED EVEN UNDER THE WILSON CASE." 

FN9  SEE ALSO WILLIAMS V. UNITED STATES, 78 U.S. APP. D.C. 147, 138
F.2D 81(1943).  IN TOT V. UNITED STATES, 319 U.S. 463(1943), THIS COURT
REFUSED TO UPHOLD A FEDERAL STATUTE CREATING A PRESUMPTION THAT
FIREARMS FOUND IN THE POSSESSION OF ONE WHO HAS PREVIOUSLY BEEN
CONVICTED OF A CRIME OF VIOLENCE WERE RECEIVED BY HIM IN INTERSTATE OR
FOREIGN COMMERCE AFTER JULY 30, 1938, ON THE GROUND THAT THE
PRESUMPTION IS "INCONSISTENT WITH ANY ARGUMENT DRAWN FROM EXPERIENCE." 
ID. AT 468. 

FN10  THIS CONCLUSION IS BUTTRESSED BY THE FACT THAT SUCH A BURDEN
ORDINARILY IS CAST UPON MEMBERS OF THE GOVERNING BOARDS OF CORPORATIONS
AND ASSOCIATIONS WHICH HAVE NOT COMPLIED WITH COURT ORDERS, WHEN THEY
ARE BROUGHT INTO COURT ON CONTEMPT CHARGES.  IN WILSON V. UNITED
STATES, 221 U.S. 361(1911), WHERE WILSON, THE PRESIDENT OF THE
CORPORATION, HAD CUSTODY OF THE BOOKS AND HAD REMOVED THEM TO HIS HOME,
THE CORPORATION AND FIVE OF ITS DIRECTORS WERE SERVED WITH SUBPOENAS TO
PRODUCE.  THE DIRECTORS APPEARED IN COURT AND WERE NOT HELD IN CONTEMPT
ALTHOUGH THEY DID NOT PRODUCE THE BOOKS BECAUSE, AS THIS COURT NOTED IN
ITS OPINION:  "ON BEHALF OF THE DIRECTORS BEFORE THE COURT IT WAS
STATED THAT THEY HAD MADE EFFORTS TO OBTAIN THE BOOKS FOR PRODUCTION
BEFORE THE GRAND JURY, BUT THAT WILSON HAD DECLINED TO SURRENDER THEM. 
THEY PRESENTED THE MINUTES OF A MEETING OF THE BOARD OF DIRECTORS HELD
ON THAT DAY AT WHICH THESE DIRECTORS (I.E. THOSE WHO HAD BEEN SERVED
WITH SUBPOENAS), CONSTITUTING A MAJORITY OF THE BOARD, HAD PASSED A
RESOLUTION DEMANDING OF WILSON THE POSSESSION OF THE LETTER PRESS COPY
BOOKS CALLED FOR BY THE SUBPOENA 'FOR THE PRODUCTION OF THE SAME BEFORE
THE FEDERAL GRAND JURY.'"  ID. AT 371.  AGAIN, IN CONTRASTING WILSON'S
ACTIONS WITH THOSE OF THE DIRECTORS, THE COURT STATED:  "THE APPELLANT
DID NOT ATTEMPT TO ASSERT ANY RIGHT ON (THE CORPORATION'S) PART; HIS
CONDUCT WAS IN ANTAGONISM TO THE CORPORATION, SO FAR AS ITS ATTITUDE IS
SHOWN.  A MAJORITY OF THE DIRECTORS, NOT INCLUDING THE APPELLANT,
APPEARED BEFORE THE COURT AND URGED THEIR SOLICITUDE TO COMPLY WITH THE
WRIT.  THEY PRESENTED THEIR FORMAL ACTION, TAKEN AT A MEETING OF THE
BOARD, IN WHICH THEY DEMANDED OF THE APPELLANT THE DELIVERY OF THE
BOOKS FOR PRODUCTION BEFORE THE GRAND JURY."  ID. AT 376.  IN
CONSIDERING THIS PRACTICE IT SHOULD BE NOTED THAT IN CRIMINAL
CONTEMPTS, AS IN CRIMINAL CASES, THE PRESUMPTION OF INNOCENCE OBTAINS;
PROOF OF GUILT MUST BE BEYOND A REASONABLE DOUBT; AND THE DEFENDANT MAY
NOT BE COMPELLED TO BE A WITNESS AGAINST HIMSELF.  GOMPERS V. BUCKS
STOVE & RANGE CO., 221 U.S. 418, 444(1911); UNITED STATES V. GOLDMAN,
277 U.S. 229, 235-236(1928); MICHAELSON V. UNITED STATES, 266 U.S. 42,
67(1924). 

FN11 THE PROPOSITION THAT ONE WHO TRIES BUT FAILS TO OBTAIN
COMPLIANCE WITH A SUBPOENA REQUIRING THE JOINT ACTION OF SEVERAL
PERSONS HAS MADE A USELESS AND "EMPTY GESTURE" WHICH SHOULD NOT BE
COMPELLED BY THE COURTS OVERLOOKS THE FACT THAT IF ENOUGH MEMBERS OF
THE GOVERNING BODY MAKE THE ATTEMPT REQUIRED BY THE SUBPOENAS THEIR
JOINT EFFORT WILL ORDINARILY BE SUCCESSFUL.  IN THE WILSON CASE ITSELF
THE DIFFERENCE BETWEEN IMPRISONMENT OF THE DIRECTORS FOR CONTEMPT AND
THEIR ACQUITTAL WAS THEIR "EMPTY GESTURE" OF CALLING UPON WILSON TO
PRODUCE THE RECORDS.  SEE NOTE 10, SUPRA. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING. 

THE COURT HOLDS THAT THERE IS SUFFICIENT EVIDENCE IN THIS RECORD TO
SUPPORT THE CONVICTION OF RESPONDENT FLEISCHMAN UNDER R.S. SEC. 102.  I
CANNOT AGREE.  WHETHER THE EVIDENCE IS SUFFICIENT DEPENDS PRIMARILY ON
WHAT CONDUCT IS MADE CRIMINAL BY R.S. SEC. 102 AND WHAT ACTION IS
REQUIRED BY A SUBPOENA DUCES TECUM.  MY VIEWS ON THESE QUESTIONS DIFFER
SO DRASTICALLY FROM THOSE OF THE COURT THAT I SHALL PRESENT THEM, AND
THE CONCLUSIONS WHICH THEY DICTATE, BEFORE TURNING TO THE COURT'S
OPINION. 

                                  I. 

R.S. SEC. 102 PROVIDES:  "EVERY PERSON WHO HAVING BEEN SUMMONED AS A
WITNESS BY THE AUTHORITY OF EITHER HOUSE OF CONGRESS, TO GIVE TESTIMONY
OR TO PRODUCE PAPERS  ...  WILLFULLY MAKES DEFAULT, ...  SHALL BE
DEEMED GUILTY OF A MISDEMEANOR  ...  "  THIS CRIMINAL STATUTE IS
LIMITED BY ITS TERMS TO JUST TWO TYPES OF CONGRESSIONAL ORDERS:  (1) A
SUBPOENA TO GIVE TESTIMONY, AND (2) A SUBPOENA TO PRODUCE PAPERS.  THE
LATTER TYPE OF ORDER IS INVOLVED HERE. 

REFUSAL TO COMPLY WITH A SUBPOENA TO PRODUCE PAPERS CAN BE PUNISHED
ONLY IF THE WITNESS HAS POWER TO PRODUCE.  IT IS A COMPLETE DEFENSE FOR
HIM TO SHOW THAT THE PAPERS ARE NOT IN HIS POSSESSION OR UNDER HIS
CONTROL.  FOR A SUBPOENA DUCES TECUM DOES NOT REQUIRE A WITNESS "TO SUE
AND LABOR IN ORDER TO OBTAIN THE POSSESSION OF ANY INSTRUMENT FROM
ANOTHER FOR THE PURPOSE OF ITS PRODUCTION AFTERWARDS BY HIMSELF  ...  "
MUNROE V. UNITED STATES, 216 F. 107, 111-112, QUOTING LORD
ELLENBOROUGH'S OPINION IN AMEY V. LONG, 9 EAST 473, 483; SEE THE
GENERAL DISCUSSION IN NOTES, 1915B L.R.A. 980-985; 32 AM. ST. REP.
648.  A COMMAND TO PRODUCE IS NOT A COMMAND TO GET OTHERS TO PRODUCE OR
ASSIST IN PRODUCING.  OF COURSE CONGRESS, LIKE A COURT, HAS BROAD
POWERS TO SUPPLEMENT ITS SUBPOENA WITH OTHER COMMANDS REQUIRING THE
WITNESS TO TAKE SPECIFIC AFFIRMATIVE STEPS REASONABLY CALCULATED TO
REMOVE OBSTACLES TO PRODUCTION.  BUT EVEN THOUGH DISOBEDIENCE OF SUCH
SUPPLEMENTARY ORDERS CAN BE PUNISHED AT THE BAR OF CONGRESS AS
CONTEMPT, JURNEY V. MACCRACKEN, 294 U.S. 125, IT DOES NOT COME WITHIN
THE LIMITED SCOPE OF R.S. SEC. 102.  ONLY BY IMPORTING THE BROAD
CONTEMPT POWERS OF CONGRESS INTO THIS CRIMINAL STATUTE CAN THIS COURT
SAY THAT IT DOES.  I CANNOT AGREE TO SUCH CAVALIER EXPANSION OF ANY
CRIMINAL PROVISION. 

PROSECUTION UNDER R.S. SEC. 102 IS THUS LIMITED TO A RANGE FAR
NARROWER THAN IS A PROCEEDING FOR CONTEMPT, EITHER IN COURT OR AT THE
BAR OF CONGRESS.  AND EVEN UNDER THE NOTORIOUSLY BROAD CONTEMPT POWER,
PUNISHMENT IS JUSTIFIABLE ONLY WHEN A PERSON HAS FAILED TO COMPLY WITH
AN ORDER SPECIFYING PRECISELY WHAT HE MUST DO, AND WHEN HE HAS POWER
HIMSELF TO DO WHAT IS ORDERED.  FN1 CERTAINLY NO LESS PRECISE STANDARD
SHOULD BE ESTABLISHED IN PROSECUTIONS FOR VIOLATION OF A CRIMINAL
STATUTE.  CF. PIERCE V. UNITED STATES, 314 U.S. 306, 310-311. 

VIEWED IN THIS LIGHT, THE EVIDENCE IN THIS CASE UNMISTAKABLY FALLS
SHORT OF PROVING THAT FLEISCHMAN DISOBEYED THE SUBPOENA OR VIOLATED THE
STATUTE.  THE GOVERNMENT DID SUCCEED IN ESTABLISHING THAT SHE HAD
RECEIVED THE SUBPOENA, KNEW APPROXIMATELY WHAT DOCUMENTS SHE WAS
REQUIRED TO PRODUCE, AND YET FAILED TO PRODUCE THEM.  BUT AN ESSENTIAL
INGREDIENT OF THE OFFENSE - THAT SHE HAD POWER TO PRODUCE THOSE RECORDS
ON APRIL 4 - REMAINS COMPLETELY UNSUBSTANTIATED.  FN2 THE GOVERNMENT
DOES NOT CONTEND THAT FLEISCHMAN HAD POWER TO PRODUCE EXCEPT BY ACTING
JOINTLY WITH OTHER MEMBERS OF THE BOARD.  AND, FOR THE REASONS STATED
ABOVE, THE SUBPOENA ADDRESSED TO FLEISCHMAN AS AN INDIVIDUAL BOARD
MEMBER IMPOSED ON HER NO DUTY TO PROD OTHERS TO PRODUCE, OR TO INITIATE
JOINT ACTION AIMED AT PRODUCTION.  FN3 

BECAUSE OF THE LIMITED SCOPE OF R.S. SEC. 102 AND THE COMPLETE
ABSENCE OF PROOF THAT FLEISCHMAN HAD POWER TO PRODUCE THE SUBPOENAED
DOCUMENTS, HER CONVICTION OF THE CRIME CREATED BY THAT STATUTE SHOULD
BE SET ASIDE. 

                 II. 

THE COURT DOES NOT DISPUTE THAT THE EVIDENCE IS INSUFFICIENT OF
UPHOLD FLEISCHMAN'S CONVICTION UNDER THE ESTABLISHED PRINCIPLES
OUTLINED ABOVE.  RATHER IT CONSTRUCTS A NOVEL LEGAL THEORY WHICH,
HOWEVER PLAUSIBLE ON THE SURFACE, WILL NOT STAND DETAILED ANALYSIS. 

THE CHAIN OF REASONING ON WHICH ITS LEGAL THEORY HANGS APPEARS TO BE
THIS:  FLEISCHMAN AND OTHER MEMBERS OF THE EXECUTIVE BOARD WERE SERVED
WITH SEPARATE SUBPOENAS ORDERING EACH TO PRODUCE PAPERS OF THE
ASSOCIATION ON APRIL 4; BRYAN, THE EXECUTIVE SECRETARY, HAD POSSESSION
OF THE PAPERS; THE INDIVIDUAL SUBPOENAS IMPOSED ON EACH BOARD MEMBER A
PERSONAL DUTY TO DO ALL EACH COULD TO BRING ABOUT JOINT ACTION THAT
WOULD CAUSE PRODUCTION; HAD FLEISCHMAN PERFORMED HER INDIVIDUAL PART OF
THIS JOINT TASK, SHE MIGHT HAVE PREVAILED ON THE BOARD TO PASS A
RESOLUTION WHICH MIGHT HAVE FORCED BRYAN TO PRODUCE; FLEISCHMAN FAILED
TO SHOW THAT SHE HAD DONE ALL SHE COULD TO BRING ABOUT THAT RESULT;
THEREFORE FLEISCHMAN WAS PROPERLY CONVICTED OF THE CRIME OF WILFULLY
DISOBEYING THE SUBPOENA ADDRESSED TO HER AS AN INDIVIDUAL MEMBER OF THE
BOARD. 

IN THIS INTRICATE CHAIN, CERTAIN CRUCIAL LINKS ARE ENTIRELY MISSING
AND OTHERS ARE FAR TOO WEAK TO SUSTAIN A CRIMINAL CONVICTION: 

A. THE FOUNDATION OF THE COURT'S THEORY IS THAT A SUBPOENA DUCES
TECUM ADDRESSED TO AN INDIVIDUAL BOARD MEMBER INCLUDES THE COMMAND THAT
HE DO "ALL HE CAN" TO BRING ABOUT JOINT BOARD ACTION TO PRODUCE THE
SUBPOENAED PAPERS.  FN4  THIS DOCTRINE EXPANDS THE SCOPE OF THE
SUBPOENA DUCES TECUM FAR BEYOND ITS TRADITIONAL BOUNDARIES, WHICH ARE
OUTLINED IN PART I SUPRA.  NO PRECEDENT FOR SUCH AN EXPANSION CAN BE
FOUND IN THE TWO CASES RELIED ON BY THE COURT. 

COMMISSIONERS V. SELLEW, 99 U.S. 624, MERELY APPROVED ISSUANCE OF A
WRIT OF MANDAMUS TO A COUNTY COMMISSION ORDERING SPECIFIC ACTION ON A
SPECIFIC DATE AS SPECIFICALLY REQUIRED BY KANSAS STATUTES.  SUCH IS THE
TRADITIONAL FUNCTION OF MANDAMUS.  SELDOM HAS A JUDICIAL ORDER BEEN
MORE EXPLICIT.  IN SHARP CONTRAST TO FLEISCHMAN, THE COMMISSIONERS WERE
NOT REQUIRED TO HAZARD THE LEAST GUESS AS TO WHAT ACTION WOULD SATISFY
THE JUDICIAL MANDATE.  BOTH THAT MANDATE AND THE APPLICABLE STATE
STATUTES TOLD THEM PRECISELY WHAT TO DO.  FN5 

NOR DOES THE OPINION IN WILSON V. UNITED STATES, 221 U.S. 361,
SUPPORT TODAY'S HOLDING THAT AN ORDER TO PRODUCE PAPERS REQUIRES A
PERSON, WITHOUT FURTHER ORDERS, TO TAKE ACTION GETTING OTHERS TO
PRODUCE.  THE COURT RELIES ON A DICTUM THAT CORPORATE OFFICIALS CAN BE
REQUIRED TO TAKE "APPROPRIATE ACTION" TO SECURE PERFORMANCE OF A
CORPORATE DUTY.  EVEN THE DICTUM, HOWEVER, MUST BE READ IN THE CONTEXT
OF THAT CASE.  WILSON, THE PRESIDENT OF A CORPORATION TO WHICH A
SUBPOENA WAS ADDRESSED, HAD ACTUAL CUSTODY OF THE SUBPOENAED RECORDS. 
APPEARING BEFORE THE GRAND JURY WITH SEVERAL CORPORATION DIRECTORS, HE
REFUSED TO PRODUCE.  THE DIRECTORS DENIED POWER TO MAKE HIM DO SO.  IN
THE RESULTING CONTEMPT PROCEEDINGS, THE PROSECUTING ATTORNEY COMPLAINED
THAT THE GOVERNMENT HAD BEEN AFTER THE RECORDS "IN ONE WAY OR ANOTHER
BEFORE THIS SAME GRAND JURY FOR NEARLY A MONTH."  HE EMPHASIZED THAT
MANY OF THE DIRECTORS HAD FREQUENTLY APPEARED BEFORE THE GRAND JURY,
AND INDEED HAD SPENT THE ENTIRE PRECEDING DAY THERE.  FN6  IN VIEW OF
THE FREQUENT AND PROLONGED APPEARANCES OF THE DIRECTORS BEFORE THE
GRAND JURY, EVEN A PASSING ACQUAINTANCE WITH HOW A GRAND JURY OPERATES
WOULD MAKE IT INCONCEIVABLE THAT "ONE WAY OR ANOTHER" DID NOT INCLUDE
ORAL ORDERS TO TAKE ACTION AIMED AT FORCING WILSON TO TURN OVER THE
RECORDS.  WHETHER SUCH ORDERS WERE SPECIFIC ENOUGH TO JUSTIFY HOLDING
THE DIRECTORS IN CONTEMPT, OR WHETHER FAILURE TO TAKE ANY ACTION WOULD
JUSTIFY PUNISHMENT FOR VIOLATION OF THE SUBPOENA ITSELF WITHOUT FIRST
ORDERING THE DIRECTORS TO TAKE SPECIFIC STEPS, BECAME IMMATERIAL WHEN
THE DIRECTORS PASSED A RESOLUTION ORDERING WILSON TO PRODUCE.  THE
DIRECTORS WERE FOUND INNOCENT, AND THE ONLY ISSUES BEFORE THIS COURT
INVOLVED WILSON'S GUILT.  READ IN THIS CONTEXT, THE DICTUM ON WHICH THE
COURT RELIES AFFORDS NO SUPPORT WHATEVER FOR ITS CONCLUSION HERE THAT A
SUBPOENA, OF ITSELF, IMPOSES THE AMORPHOUS DUTY OF "APPROPRIATE ACTION"
TO GET OTHERS TO PRODUCE.  MOREOVER, CITATION OF THE SELLEW CASE AS
AUTHORITY FOR THE DICTUM CLEARLY INDICATES THAT THE "APPROPRIATE
ACTION" WOULD HAVE TO BE DESIGNATED AND COMMANDED BY SPECIFIC ORDERS. 
NOTHING IN THE WILSON OPINION CAN FAIRLY BE INTERPRETED AS SUPPLANTING,
OR EVEN CASTING DOUBT ON, THE TRADITIONAL RULE THAT FAILURE TO TAKE
ACTION REQUIRED BY AN ORDER CAN BE PUNISHED ONLY IF THE ACTION IS
CLEARLY, SPECIFICALLY, AND UNEQUIVOCALLY COMMANDED BY THAT ORDER.  FN7 

APPARENTLY THE ONLY REASON GIVEN FOR DISCARDING THIS RULE IS THE
COURT'S STATEMENT THAT FAILURE TO CONSTRUE AN INDIVIDUAL SUBPOENA AS
REQUIRING JOINT ACTION BY MEMBERS OF A BOARD WOULD "REMOVE SUCH
ORGANIZATIONS BEYOND THE REACH OF LEGISLATIVE AND JUDICIAL COMMANDS." 
THAT FEAR IS WITHOUT FOUNDATION.  A CUSTODIAN WILFULLY FAILING TO
PRODUCE RECORDS CAN BE PROSECUTED UNDER R.S. SEC. 102.  AND UNDER 18
U.S.C. SEC. 3, ANYONE "AIDING OR ABETTING" HER ALSO BECOMES A PRINCIPAL
IN THAT OFFENSE AND IS SIMILARLY SUBJECT TO R.S. SEC. 102.  MOREOVER, A
CONSPIRACY TO PREVENT PRODUCTION WOULD CERTAINLY PROVIDE GROUNDS FOR
CONVICTION.  THUS THERE IS NO QUESTION THAT FLEISCHMAN'S CONVICTION
COULD BE SUSTAINED IF THERE HAD BEEN SUFFICIENT EVIDENCE THAT SHE
ACTUALLY AIDED OR ENCOURAGED THE CUSTODIAN'S REFUSAL TO PRODUCE, OR
CONSPIRED TO ACCOMPLISH THAT RESULT.  FN8  AND IN THE RARE INSTANCE
WHERE THESE SANCTIONS SEEM UNLIKELY TO SECURE COMPLIANCE, CONGRESS CAN
ALWAYS FALL BACK UPON ITS ARSENAL OF SUPPLEMENTARY ORDERS ENFORCED BY
CONGRESSIONAL CONTEMPT PROCEEDINGS:  FN9  OFFICERS WITH AUTHORITY TO
CALL A BOARD MEETING CAN BE ORDERED TO DO SO, AND BOARD MEMBERS CAN BE
ORDERED TO VOTE FOR RESOLUTIONS CALCULATED TO FOSTER PRODUCTION.  IT
CAN BE SAFELY PRESUMED THAT ANY ORGANIZATION CAPABLE OF ESCAPING THIS
BARRAGE WOULD NOT BE BROUGHT INTO LINE BY TODAY'S EXPANSION OF R.S.
SEC. 102.  A SUBPOENA IS NOT MADE "STERILE" BY HOLDING THAT IT COMMANDS
ONLY WHAT IT SAYS IT COMMANDS.    IN FACT, THE COURT'S NEW DOCTRINE
CREATES A DANGER FAR MORE GENUINE THAN WHAT IT ALLEGEDLY AVOIDS.  WHILE
IN CONTEMPT PROCEEDINGS A WITNESS IN DOUBT AS TO JUST WHAT ACTION IS
DEMANDED CAN BE GIVEN MORE PRECISE ORDERS BEFORE A TRIBUNAL DECIDES TO
PUNISH HIM FOR NONCOMPLIANCE, NO SUCH FLEXIBILITY EXISTS IN CRIMINAL
PROSECUTIONS UNDER R.S. SEC. 102.  AS APPLIED TO SUCH PROSECUTIONS, THE
SWEEPING REQUIREMENT THAT A WITNESS NOT HAVING CUSTODY OR CONTROL OF
SUBPOENAED DOCUMENTS MUST DO "ALL HE CAN" TO SECURE THEIR PRODUCTION
PLACES HIM IN AN UNFAIR DILEMMA.  CAUTION DICTATES THAT HE "SUE AND
LABOR" TO OBTAIN THE PAPERS, HOWEVER GREAT AND HOWEVER USELESS THE
EFFORT AND EXPENSE.  ON THE OTHER HAND, COMMON SENSE COUNSELS THAT HE
MAKE SUCH PRACTICAL EFFORTS AS WOULD SATISFY A REASONABLE JURY - AND
NOT UNTIL THE JURY HAS SPOKEN WILL HE KNOW WHETHER HE GUESSED RIGHT. 

NOT EVEN AFTER TODAY'S OPINION CAN FLEISCHMAN - OR, FOR THAT MATTER,
ANYONE ELSE - KNOW PRECISELY WHAT STEPS WERE REQUIRED OF HER TO
ENCOURAGE PRODUCTION OF DOCUMENTS WHICH SHE HERSELF COULD NOT PRODUCE. 
FN10 

B. EVEN IF THE THEORY ON WHICH THIS COURT UPHOLDS FLEISCHMAN'S
CONVICTION WERE TENABLE, IT IS, AS MIGHT BE EXPECTED FROM ITS NOVELTY,
COMPLETELY DIFFERENT FROM THE THEORY ON WHICH THE CASE WAS TRIED.  AN
ESSENTIAL ELEMENT IN THE TRIAL JUDGE'S CHARGE WAS HIS INSTRUCTION THAT
THE JURY COULD FIND FLEISCHMAN GUILTY ONLY IF IT FOUND THAT SHE HAD
"ACTED IN CONCERT WITH OTHER MEMBERS OF THE EXECUTIVE BOARD" TO PREVENT
PRODUCTION.  BUT THE COURT, WITHOUT EVEN ATTEMPTING TO SUPPORT HER
CONVICTION ON THIS THEORY, SUBSTITUTES A THEORY INVOLVING COMPLETELY
DIFFERENT PROBLEMS OF PROOF AND EVIDENCE.  FN11  THE ISSUE OF WHETHER
FLEISCHMAN HAD FAILED TO ATTEMPT TO PERSUADE OTHERS TO PRODUCE WAS NOT
BEING TRIED, AND THERE WAS NO REASON FOR HER TO INTRODUCE EVIDENCE
CONCERNING IT. THE QUESTION ON REVIEW IS NOT WHETHER THE RECORD AS A
WHOLE EXUDES A GENERAL IMPRESSION OF GUILT, BUT WHETHER THE EVIDENCE
SUPPORTS A FINDING OF GUILT ON THE ISSUES PRESENTED TO THE JURY BY THE
TRIAL JUDGE'S CHARGE.  BOLLENBACH V. UNITED STATES, 326 U.S. 607, 614. 
THIS COURT SHOULD HEED ITS MANDATES FORBIDDING STATE APPELLATE COURTS
TO UPHOLD CONVICTIONS ON ANY THEORY MATERIALLY DIFFERENT FROM THAT ON
WHICH THE CASE WAS PRESENTED TO THE JURY.  SEE COLE V. ARKANSAS, 333
U.S. 196, 201-202. 

C. THE COURT RELIES HEAVILY ON STATEMENTS MADE BY FLEISCHMAN BEFORE
THE CONGRESSIONAL COMMITTEE.  BUT THESE STATEMENTS ARE EXPRESSLY MADE
INADMISSIBLE BY 18 U.S.C. SEC. 3486, WHICH PROVIDES THAT NO TESTIMONY
GIVEN BY A WITNESS BEFORE ANY COMMITTEE OF EITHER HOUSE "SHALL BE USED
AS EVIDENCE IN ANY CRIMINAL PROCEEDING AGAINST HIM IN ANY COURT, EXCEPT
IN A PROSECUTION FOR PERJURY COMMITTED IN GIVING SUCH TESTIMONY."  SEE
UNITED STATES V. BRYAN, ANTE, PP. 323, 346. 

NOR DOES FLEISCHMAN'S TESTIMONY, EVEN IF ADMISSIBLE, SUPPORT THE
INFERENCES DRAWN FROM IT BY THIS COURT.  WEIGHTY SIGNIFICANCE IS
ATTACHED TO HER REFUSAL TO SAY HOW SHE WOULD VOTE ON THE QUESTION OF
PRODUCTION IF A BOARD MEETING WERE HELD.  SUFFICE IT TO SAY THAT NO
MEETING HAD BEEN HELD FOLLOWING HER RECEIPT OF THE SUBPOENA, NO FUTURE
MEETING HAD ANY RELEVANCE WHATEVER TO THE PAST OFFENSE WITH WHICH SHE
WAS CHARGED, AND THE SUBPOENA DID NOT ORDER HER TO TAKE ACTION AT A
BOARD MEETING ANYWAY.  SEE PART I SUPRA. 

EQUALLY UNWARRANTED IS THE INFERENCE DRAWN BY THE COURT FROM THE FACT
THAT FLEISCHMAN AND OTHER BOARD MEMBERS READ THE SAME STATEMENT DENYING
INDIVIDUAL POSSESSION OR CONTROL OVER THE SUBPOENAED DOCUMENTS.  THE
COURT REFERS TO THIS STATEMENT, PREPARED BY A LAWYER, AS A "PATENT
EVASION" OF THE COMMITTEE'S ORDER.  ON THE CONTRARY, I REGARD THE
DENIAL OF INDIVIDUAL POWER TO PRODUCE AS A COMPLETE AND ADEQUATE
RESPONSE TO THE INDIVIDUAL SUBPOENAS.  AND SURELY, ALTHOUGH THE
COMMITTEE WOULD NOT PERMIT COUNSEL FOR WITNESSES TO ENTER THE COMMITTEE
ROOM, WITNESSES HAVE ALWAYS BEEN ENTITLED TO GET ADVICE FROM A
QUALIFIED LAWYER AND PRESENT A STATEMENT PREPARED BY HIM WITHOUT HAVING
INFERENCES OF GUILT DRAWN FROM THAT FACT. 

D. POWER TO PRODUCE IS AN ESSENTIAL INGREDIENT OF ANY OFFENSE UNDER
R.S. SEC. 102, AND THE INDICTMENT NECESSARILY ALLEGED THAT "EACH AND
ALL" OF THE BOARD MEMBERS HAD SUCH POWER.  THUS PROOF OF FLEISCHMAN'S
POWER TO PRODUCE THE SUBPOENAED PAPERS IS UNDENIABLY VITAL TO THE
COURT'S THEORY OF THE CASE. 

THE ONLY EVIDENCE TENDING TO SHOW POWER IN THE BOARD ITSELF TO
PRODUCE IS THAT IT HAD AUTHORITY OVER THE POLICIES AND ACTIVITIES OF
THE ASSOCIATION, AND HAD POWER TO SUSPEND BRYAN AT ANY REGULAR BOARD
MEETING.  FN12 ASSUMING THAT THE BOARD COULD HAVE ORDERED BRYAN TO
PRODUCE UNDER THREAT OF SUSPENSION, THE WILSON CASE DEMONSTRATES THAT
PROSPECTIVE OBEDIENCE TO SUCH A POTENTIAL BOARD ORDER CANNOT ACCURATELY
BE INFERRED MERELY FROM THE SUPREMACY OF A BOARD.  AND THIS RECORD IS
BARREN OF ANY EVIDENCE TO SUPPORT A FINDING THAT BRYAN WOULD HAVE
COMPLIED ON APRIL 4TH WITH A BOARD ORDER. 

EQUALLY IMPORTANT UNDER THE COURT'S THEORY IS THE QUESTION OF
FLEISCHMAN'S OWN POWER TO BRING ABOUT PRODUCTION.  THE COURT HOLDS THAT
MEMBERSHIP ON THE BOARD GAVE HER ONE-EIGHTEENTH OF THE BOARD'S OFFICIAL
"POWER," WHICH IT CONSIDERS ENOUGH TO SUPPORT CONVICTION.  BUT HER
FRACTION OF OFFICIAL "POWER" COULD BE EXERCISED ONLY AT AN OFFICIAL
MEETING.  THERE IS NO SHOWING THAT ANY MEETING WAS HELD BETWEEN MARCH
29 AND APRIL 4, OR THAT FLEISCHMAN HAD POWER TO CALL SUCH A MEETING. 
FN13  AND I DO NOT UNDERSTAND THE COURT TO SAY THAT THE "POWER TO
PRODUCE" WHICH FLEISCHMAN CRIMINALLY FAILED TO EXERCISE WAS SOLELY SOME
IMAGINED PERSONAL ABILITY, UNCONNECTED WITH HER OFFICIAL CAPACITY, TO
ATTEMPT TO CAJOLE THE CHAIRMAN INTO CALLING A MEETING OR ORDERING
PRODUCTION. 

UPON A SHOWING MERELY THAT THE BOARD CONTROLLED THE "POLICIES AND
ACTIVITIES" OF THE ASSOCIATION AND THAT SHE WAS A BOARD MEMBER, THE
COURT IMPOSES ON FLEISCHMAN THE BURDEN OF DISPROVING THE CRUCIAL
ALLEGATION OF "POWER TO PRODUCE" BY ESTABLISHING THAT SHE HAD DONE "ALL
SHE COULD" TO BRING ABOUT PRODUCTION.  IN EFFECT IT HAS SET UP A
PRESUMPTION THAT EVERY BOARD MEMBER AUTOMATICALLY HAS SUCH POWER, AND
HAS SADDLED FLEISCHMAN WITH THE BURDEN OF PROVING HER INNOCENCE BY
SHOWING THAT THE PRESUMPTION SHOULD NOT APPLY TO HER.  FN14  IN THE
ABSENCE OF SOME SHOWING THAT SHE HAD AUTHORITY TO CALL OR AN
OPPORTUNITY TO VOTE AT AN OFFICIAL BOARD MEETING, OR AT LEAST HAD
SUBSTANTIAL INFLUENCE OVER OTHER BOARD MEMBERS, THIS IS EVERY BIT AS
ARBITRARY AS THE PRESUMPTION REJECTED IN TOT V. UNITED STATES, 319 U.S.
463.  FN15  THAT CASE DIRECTLY BARS USE OF SUCH A DEVICE TO SHIFT THE
BURDEN OF PROOF, HOWEVER CONVENIENT IT WOULD BE FOR THE PROSECUTOR. 
AND WITHOUT THAT DEVICE, THE GOVERNMENT'S CASE WAS CLEARLY INSUFFICIENT
TO SUPPORT THE VERDICT. 

THE TIME-HONORED RULE, THAT THE GOVERNMENT IS REQUIRED TO PROVE EVERY
ESSENTIAL INGREDIENT OF AN OFFENSE IT CHARGES, PROVIDES A SAFEGUARD
ESSENTIAL TO PRESERVATION OF INDIVIDUAL LIBERTY AGAINST GOVERNMENTAL
OPPRESSION.  IT SHOULD NOT BE SACRIFICED IN ORDER TO SUSTAIN THE
CONVICTION OF A SINGLE DEFENDANT WHOSE GUILT THE GOVERNMENT HAS PLAINLY
FAILED TO PROVE. 

     *         *     *         *         * 

IF THE COURT'S THEORY MERELY HAD ANY ONE OF THE ABOVE FLAWS, ITS
CHAIN OF REASONING WOULD BREAK.  WITH ALL FOUR, IT COLLAPSES.  THE
JUDGMENT OF THE COURT OF APPEALS SHOULD BE AFFIRMED. 

FN1  THE TWO COMPONENTS OF THIS GENERAL PRINCIPLE AND THEIR
APPLICATION TO THIS CASE ARE DISCUSSED IN II (A) AND II (D) INFRA. 

FN2  THE COURT'S ATTEMPT TO OFFSET THIS DEFICIENCY IS DISCUSSED IN II
(D) INFRA. 

FN3  WHETHER JOINT ACTION WOULD HAVE BEEN REQUIRED BY A SUBPOENA
ADDRESSED TO THE BOARD IS COMPLETELY IRRELEVANT FOR THE REASONS SET OUT
IN NOTE 4 INFRA.  IT SHOULD BE NOTED, HOWEVER, THAT AN ORDER TO THE
BOARD AS AN ENTITY NECESSARILY IMPLIES JOINT ACTION; ONE ADDRESSED TO
AN INDIVIDUAL MEMBER DOES NOT.  MOREOVER, THE FORMER IS SUFFICIENTLY
SPECIFIC IF IT TELLS THE BOARD EXACTLY WHAT TO DO; THE LATTER MUST TELL
THE INDIVIDUAL WHAT TO DO.  IN EITHER CASE, THE RECIPIENT MUST HAVE
POWER TO DO WHAT IS ORDERED BEFORE PUNISHMENT IS JUSTIFIED. 

FN4  WHILE A SUBPOENA WAS ALSO ADDRESSED TO THE BOARD AS AN ENTITY,
THERE IS UTTERLY NO EVIDENCE THAT FLEISCHMAN EVER KNEW OF IT.
THEREFORE, LIKE THE COURT, WE TREAT THE CASE AS IF NO BOARD SUBPOENA
HAD EVER BEEN ISSUED. 

FN5  THE STRING OF MANDAMUS CASES CITED IN NOTE 6 OF THE COURT'S
OPINION ARE EQUALLY INAPPLICABLE FOR THE SAME GENERAL REASON.  NO CASE
CITED SUPPORTS THE COURT'S POSITION. 

FN6  IT SHOULD BE NOTED THAT THE DIRECTORS APPEARED IN RESPONSE TO A
SUBPOENA ADDRESSED TO THE CORPORATION.  UNLIKE FLEISCHMAN, THEY WERE
NOT SUBPOENAED INDIVIDUALLY.  SEE NOTE 3 SUPRA. 

FN7  SEE, E.G., MCFARLAND V. UNITED STATES, 295 F. 648, 650:
"CERTAINLY BEFORE ONE MAY BE PUNISHED FOR CONTEMPT FOR VIOLATING A
COURT ORDER, THE TERMS OF SUCH ORDER SHOULD BE CLEAR AND SPECIFIC, AND
LEAVE NO DOUBT OR UNCERTAINTY IN THE MINDS OF THOSE TO WHOM IT IS
ADDRESSED."  SEE ALSO BERRY V. MIDTOWN SERVICE CORP., 104 F.2D 107,
111, 122 A.L.R. 1341, AND LABOR BOARD V. NEW YORK MERCHANDISE CO., 134
F.2D 949, 952.  IN THE LATTER CASE THE COURT, IN AN OPINION BY JUDGE
LEARNED HAND, CHARACTERIZES AS "CARDINAL" THE RULE THAT "NO ONE SHALL
BE PUNISHED FOR THE DISOBEDIENCE OF AN ORDER WHICH DOES NOT DEFINITELY
PRESCRIBE WHAT HE IS TO DO."  FOR APPLICATION OF THE SAME GENERAL RULE
TO CONTEMPT PROCEEDINGS FOR ENFORCEMENT OF A COURT DECREE, SEE TERMINAL
R. ASSN. V. UNITED STATES, 266 U.S. 17, 29. 

FN8  ONE COUNT OF THE INDICTMENT ACTUALLY CHARGED FLEISCHMAN AND
OTHER MEMBERS OF THE BOARD WITH CONSPIRACY.  THAT COUNT WAS DISMISSED. 
AS FOR FLEISCHMAN'S GUILT AS AN "AIDER AND ABETTOR," THAT QUESTION WAS
SUBMITTED TO THE JURY BY THE TRIAL JUDGE'S CHARGE.  IN AFFIRMING, THIS
COURT DOES NOT EVEN SUGGEST THAT THERE WAS EVIDENCE TO SHOW THAT
FLEISCHMAN HAD EVER AIDED OR ENCOURAGED BRYAN OR ANYONE ELSE.  THAT
FLEISCHMAN'S CONVICTION CANNOT BE UPHELD UNDER EXISTING DOCTRINES DOES
NOT ESTABLISH THE INADEQUACY OF THOSE DOCTRINES FOR ANY PURPOSE EXCEPT
CONVICTING ONE WHOSE GUILT AS CHARGED HAS NOT BEEN PROVEN. 

FN9  SEE PART I SUPRA. 

FN10  THERE IS NOT THE SLIGHTEST INDICATION THAT ANYTHING FLEISCHMAN
COULD HAVE DONE EVEN HAD A PROSPECT OF FOSTERING COMPLIANCE WITH THE
SUBPOENA.  SEE II (D) INFRA.  APPARENTLY FLEISCHMAN'S CONVICTION IS
BEING UPHELD BECAUSE SHE FAILED TO MAKE SOME UNDEFINED EMPTY GESTURE. 

FN11  THE COURT ATTEMPTS TO JUSTIFY ITS CHANGE OF THEORIES BY QUOTING
FROM A BENCH ARGUMENT BETWEEN FLEISCHMAN'S ATTORNEY AND THE TRIAL
JUDGE.  SUCH AN ARGUMENT CANNOT ALTER THE THEORY ON WHICH THE CASE WAS
SUBMITTED TO THE JURY BY THE JUDGE'S CHARGE. 

FN12  EVEN THIS EVIDENCE COMES PRIMARILY FROM FLEISCHMAN'S TESTIMONY
BEFORE THE CONGRESSIONAL COMMITTEE, AND SHOULD THEREFORE BE HELD
INADMISSIBLE.  SEE UNITED STATES V. BRYAN, ANTE, PP. 323, 346. 

FN13  THE COURT INTIMATES THAT FLEISCHMAN COULD HAVE CALLED A MEETING
WHEN MEMBERS OF THE BOARD WERE GATHERED IN AN ATTORNEY'S OFFICE ON
APRIL 2D, OR AN INFORMAL GATHERING OF MEMBERS ELSEWHERE.  IT SHOULD BE
NOTED THAT THE PROSECUTOR LABORED VALIANTLY AT THE TRIAL TO ESTABLISH
THAT FLEISCHMAN VISITED THE ATTORNEY'S OFFICE OR ATTENDED SOME INFORMAL
MEETING.  HE FAILED COMPLETELY IN THIS EFFORT.  DESPITE REPEATED
QUESTIONS TO SEVERAL WITNESSES, NOT ONE RESPONSE WAS EVOKED INDICATING
THAT FLEISCHMAN EVER SAW OR COMMUNICATED WITH A SINGLE BOARD MEMBER
DURING THE INTERVAL BETWEEN THE TIME SHE WAS SUBPOENAED AND THE TIME
THE MEMBERS MET IN THE ANTEROOM OF THE COMMITTEE.  AS FOR THE
SUGGESTION THAT FLEISCHMAN MIGHT HAVE CALLED A MEETING IN THE ANTEROOM
OF THE COMMITTEE'S CHAMBERS, IT IS STRANGE DOCTRINE TO ASSERT THAT THE
COMMITTEE'S COMMAND THAT ALL MEMBERS APPEAR WAS ENOUGH TO REQUIRE
AUTOMATICALLY THAT EACH MEMBER CALL A MEETING.  IF THAT WAS WHAT THE
COMMITTEE WANTED, IT COULD HAVE ORDERED A MEETING ITSELF. 

IN ANY EVENT, "OPPORTUNITY" TO CALL A MEETING CANNOT BE EQUATED WITH
OFFICIAL "POWER" TO CALL A MEETING.  THERE IS NO EVIDENCE EVEN
INTIMATING THAT SHE HAD SUCH AUTHORITY. 

FN14  THIS THEORY SHARPLY CONTRASTS WITH THE ESTABLISHED PRINCIPLE
THAT CORPORATE AND ASSOCIATION OFFICIALS, LIKE OTHER PERSONS, CAN BE
HELD GUILTY ONLY FOR THEIR OWN CRIME, AND NOT FOR THE CRIMES OF THEIR
ASSOCIATES IN WHICH THERE IS NO PROOF THAT THEY PARTICIPATED.  ANY
CONTRARY DOCTRINE IS A STARTLING INNOVATION IN THE LAWS OF THIS
COUNTRY.  SEE BROTHERHOOD OF CARPENTERS V. UNITED STATES, 330 U.S. 395,
406-407.  SEE ALSO CASES COLLECTED IN NOTES, 33 A.L.R. 787; 16 L.R.A.
(N.S.)  333; 8 ANN. CAS. 383. 

FN15  SEE NOTE 9 OF THE COURT'S OPINION. 

UNDER THE TOT RULE, THE MINIMUM JUSTIFICATION FOR SUCH A PRESUMPTION
WOULD BE GENERAL EXPERIENCE THAT THE MOST INSIGNIFICANT MEMBER OF A
BOARD HAS POWER, IF SHE "DOES ALL SHE CAN," TO SECURE BOARD PRODUCTION
OF DOCUMENTS HELD BY ITS CUSTODIAN.  EXPERIENCE NOT ONLY FAILS TO
SUPPORT THIS PREMISE; AS ANYONE FAMILIAR WITH THE LOOSE-JOINTED
STRUCTURE OF NONPROFIT ASSOCIATIONS SHOULD KNOW, MOST MEMBERS OR MOST
BOARDS ARE WHOLLY SUBORDINATE TO THE EXECUTIVE SECRETARY AND THE
CHAIRMAN.  THIS IS ONE OF THE "MANY SIGNIFICANT RESPECTS" IN WHICH SUCH
ASSOCIATIONS OBVIOUSLY DIFFER FROM BUSINESS CORPORATIONS.  SEE UNITED
STATES V. WHITE, 322 U.S. 694, 697.  NOT A SINGLE LINE IN ROSSI V.
UNITED STATES, 289 U.S. 89, OR MORRISON V. CALIFORNIA, 291 U.S. 82,
SUPPORTS THE "PRESUMPTION" RETROACTIVELY CREATED HERE.  AS A BASIS OF
"POWER TO PRODUCE," MERE BOARD MEMBERSHIP IS NO SUBSTITUTE FOR
POSSESSION, CUSTODY OR CONTROL.    MR. JUSTICE FRANKFURTER,
DISSENTING. 

ANYONE WHO "WILLFULLY MAKES DEFAULT" IN OBEYING A VALID SUBPOENA TO
PRODUCE RECORDS BEFORE A COMMITTEE OF CONGRESS HAS, EVER SINCE 1857,
BEEN GUILTY OF A FEDERAL OFFENSE.  ACT OF JANUARY 24, 1857, 11 STAT.
155, R.S. SEC. 102, AS AMENDED BY JOINT RESOLUTION OF JUNE 22, 1938, 52
STAT. 942, NOW 2 U.S.C. SEC. 192.  THIS WAS THE OFFENSE FOR WHICH
RESPONDENT WAS PROSECUTED.  THE TRIAL COURT THUS PUT TO THE JURY THE
THEORY OF THE PROSECUTION: 

"IF YOU FIND THAT THE MEMBERS OF THE EXECUTIVE BOARD, DIRECTLY OR
INDIRECTLY, HAD CUSTODY OR DOMINION AND CONTROL OVER THE RECORDS
SUBPOENAED AND COULD HAVE PRODUCED THE RECORDS CALLED FOR, BUT WILFULLY
FAILED AND REFUSED TO DO SO, AND THAT THE DEFENDANT FLEISCHMAN ACTED IN
CONCERT WITH OTHER MEMBERS OF THE EXECUTIVE BOARD, EITHER THROUGHOUT OR
AT ANY POINT, TO PREVENT THE COMMITTEE FROM GETTING THE SUBPOENAED
RECORDS, THEN YOU MAY FIND THE DEFENDANT FLEISCHMAN GUILTY, IF YOU FIND
THAT THE OTHER ELEMENTS HEREINAFTER SET OUT HAVE BEEN PROVED BY THE
UNITED STATES BEYOND A REASONABLE DOUBT." 

THE ONLY "OTHER ELEMENT" THAT BEARS ON THE ISSUE OF THE SUFFICIENCY
OF THE EVIDENCE WAS THE COURT'S EXPLANATION THAT THE REQUIREMENT THAT
THE DEFAULT BE MADE "WILLFULLY" MEANS THAT THE DEFAULT MUST BE
"DELIBERATE AND INTENTIONAL." 

THE INDICTMENT AGAINST RESPONDENT ALSO HAD A COUNT CHARGING HER AND
OTHERS WITH CONSPIRING TO MAKE WILLFUL DEFAULT OF CONGRESSIONAL
SUBPOENAS.  IT IS INAPPROPRIATE TO CONSIDER WHETHER THE EVIDENCE WOULD
HAVE BEEN SUFFICIENT TO BRING RESPONDENT WITHIN THE EXPANSIVE RANGE OF
A CONSPIRACY CHARGE OR WHETHER EVIDENCE THAT COULD HAVE BEEN ADMITTED
UNDER SUCH A CHARGE BUT WAS NOT ADMISSIBLE IN THIS TRIAL WOULD HAVE
SUFFICED TO PROVE GUILT.  FOR ITS OWN GOOD REASONS THE GOVERNMENT
DISMISSED THE CONSPIRACY CHARGE AGAINST FLEISCHMAN.  A CAREFUL STUDY OF
THE RECORD COMPELS THE CONCLUSION THAT EDGERTON, J. CONVEYED FAIRLY AND
IN BALANCE ALL THAT THE GOVERNMENT PROVED AGAINST RESPONDENT ON THE
CHARGE ON WHICH SHE WAS TRIED: 

"APPELLANT TESTIFIED WITHOUT CONTRADICTION THAT SHE COULD NOT PRODUCE
THE RECORDS BECAUSE THEY WERE NOT IN HER POSSESSION OR CONTROL.  SHE
REFUSED TO EXPRESS EITHER WILLINGNESS OR UNWILLINGNESS THAT THEY BE
PRODUCED.  FN8  EVEN THIS REFUSAL DID NOT OCCUR UNTIL SHE WAS
QUESTIONED BY MEMBERS OF THE CONGRESSIONAL COMMITTEE ON APRIL 4.  THE
RECORDS WERE IN POSSESSION OF ONE BRYAN, SUBJECT TO CONTROL BY AN
EXECUTIVE BOARD OF ABOUT 18 MEMBERS OF WHOM APPELLANT WAS ONE.  LONG
BEFORE APRIL 4 BRYAN, DIRECTED BY OTHER MEMBERS OF THE BOARD BUT NOT BY
THE APPELLANT, HAD DETERMINED NOT TO PRODUCE THE RECORDS.  THERE IS NO
EVIDENCE THAT APPELLANT RATIFIED OR APPROVED THE ACTION OF THE OTHER
MEMBERS OF THE BOARD.  THE GOVERNMENT SAYS 'IN TAKING PART IN A
COMBINED ACTION TO WITHHOLD RECORDS FROM A CONGRESSIONAL COMMITTEE THE
APPELLANT ACTED AT HER OWN PERIL.'  BUT I HAVE NOT BEEN ABLE TO FIND
ANY EVIDENCE, AND NO EVIDENCE HAS BEEN POINTED OUT, THAT THE APPELLANT
TOOK PART IN A COMBINED ACTION TO WITHHOLD RECORDS.  IT HAS BEEN
SUGGESTED THAT SHE MIGHT HAVE ASKED THE BOARD, OR BRYAN, TO PRODUCE THE
RECORDS.  BUT THERE IS NO EVIDENCE THAT IF SHE HAD ASKED THEM THEY
WOULD HAVE COMPLIED.  THERE IS NO EVIDENCE THAT THE NONPRODUCTION OF
THE RECORDS IN THE COMMITTEEROOM RESULTED EITHER FROM ANYTHING THE
APPELLANT DID OR FROM ANYTHING SHE OMITTED TO DO."  84 U.S. APP. D.C.
388, 390, 174 F.2D 519, 521. 

THE RESPONDENT WAS SUMMONED TO PRODUCE PAPERS BEFORE A CONGRESSIONAL
COMMITTEE AND DID NOT PRODUCE THEM.  FOR THIS NON-ACTION SHE WAS
PROSECUTED AS A PERSON WHO "WILLFULLY MAKES DEFAULT" IN NOT PRODUCING
THE PAPERS.  I BELIEVE IN GIVING PENAL STATUTES A SCOPE THEIR WORDS
WOULD RECEIVE "IN EVERYDAY SPEECH."  MCBOYLE V. UNITED STATES, 283 U.S.
25, 26, AND SEE ROSCHEN V. WARD, 279 U.S. 337, 339.  IF LANGUAGE IN A
CRIMINAL STATUTE IS TO BE READ WITH THE NORMAL MEANING OF ENGLISH
SPEECH, "WILLFULLY MAKES DEFAULT" SURELY CONVEYS THE THOUGHT OF A
SUBSTANTIAL TIE BETWEEN THE NON-PRODUCTION OF PAPERS AND THE NON-ACTION
TO WHICH IT IS ATTRIBUTED.  THIS RECORD IS BARREN OF THE PROOF WHICH
UNDER OUR SYSTEM OF PUNITIVE JUSTICE WOULD HAVE WARRANTED A JURY TO
FIND THAT RESPONDENT WAS ACTIVELY OR PASSIVELY RESPONSIBLE FOR THE NON
PRODUCTION OF THE PAPERS SHE WAS ASKED TO PRODUCE. 

THIS CONCLUSION DOES NOT IMPLY THE SLIGHTEST RELAXATION OF THE DUTY
OF OBEDIENCE TO THE LAWFUL COMMANDS OF CONGRESSIONAL COMMITTEES IN
EXERCISING THEIR POWER OF TESTIMONIAL COMPULSION.  MCGRAIN V.
DAUGHERTY, 273 U.S. 135.  BUT REGARD FOR THAT POWER DOES NOT CALL FOR
THE SLIGHTEST RELAXATION OF THE REQUIREMENTS OF OUR CRIMINAL PROCESS. 
A PENAL STATUTE MUST NOT BE APPLIED BEYOND ITS TERMS, AND THE CRIME
DEFINED BY IT AND CHARGED IN AN INDICTMENT MUST BE ESTABLISHED BY PROOF
BEYOND A REASONABLE DOUBT. 

IT MAY WELL BE THAT THE HOUSE COMMITTEE SHOULD HAVE ASKED RESPONDENT
TO TRY TO HAVE CONVENED A MEETING OF THE EXECUTIVE BOARD WITH A VIEW TO
ASKING THE CUSTODIAN OF THE RECORDS TO PRODUCE THEM.  SUCH A PROCEDURE
IS SUGGESTED BY WHAT WAS DONE IN WILSON V. UNITED STATES, 221 U.S. 361,
370-71.  HAD RESPONDENT REFUSED SHE WOULD HAVE SUBJECTED HERSELF TO A
CONTEMPT PROCEEDING FOR DISOBEDIENCE OF A COMMAND OF THE COMMITTEE. 
BUT THIS IS NOT SUCH A PROCEEDING.  AS TO THE OFFENSE FOR WHICH SHE WAS
PROSECUTED, I AGREE WITH JUDGE EDGERTON THAT AN ACQUITTAL SHOULD HAVE
BEEN DIRECTED. 

FN8  "'THE CHAIRMAN:  MRS. FLEISCHMAN; I AM GOING TO ASK YOU NOW FOR
YOUR PERSONAL PERMISSION.  I AM REQUESTING YOU PERSONALLY TO PERMIT
THIS COMMITTEE OF CONGRESS TO HAVE ACCESS TO THOSE BOOKS.  WILL YOU
GIVE IT TO US OR NOT?  SO FAR AS YOU ARE ABLE TO DO, WILL YOU GIVE IT
TO US? 

"'MRS. FLEISCHMAN:  THAT IS EXPRESSING MY OPINION, MR. CHAIRMAN.  I
CANNOT SAY WHAT THE BOARD WILL DO. 

"'THE CHAIRMAN:  I AM NOT ASKING WHAT THE BOARD WILL DO.  I AM ASKING
WHAT YOU WILL DO. 

"'MRS. FLEISCHMAN:  I DO NOT KNOW, BECAUSE THE THING COMES TO THE
BOARD TO DISCUSS, AND I DON'T THINK IT IS PERTINENT TO SAY WHAT I
SHOULD DO A WEEK FROM NOW.  IT IS A SPECIAL MEETING.' 

"I KNOW OF NOTHING ELSE IN THE RECORD THAT COMES NEARER THAN THIS TO
SUPPORTING AN INFERENCE THAT APPELLANT REFUSED TO PRODUCE THE RECORDS
OR EXPRESSED UNWILLINGNESS TO PRODUCE THEM." 
..END :














COMMUNICATIONS ASSN. V. DOUDS, 339 U.S. 382 


ARGUED OCTOBER 10-11, 1949.  - DECIDED MAY 8, 1950.  - 79 F.SUPP.  563,
170 F.2D 247, AFFIRMED. 


LABOR MANAGEMENT RELATIONS ACT, 1947, WHICH IMPOSES CERTAIN
RESTRICTIONS ON, AND DENIES THE BENEFITS OF CERTAIN PROVISIONS OF THE
NATIONAL LABOR RELATIONS ACT TO, ANY LABOR ORGANIZATION THE OFFICERS OF
WHICH HAVE NOT FILED WITH THE NATIONAL LABOR RELATIONS BOARD THE SO
CALLED "NON-COMMUNIST" AFFIDAVITS PRESCRIBED BY SEC. 9(H), IS VALID
UNDER THE FEDERAL CONSTITUTION.  PP. 385-415. 

1.  ONE OF THE PURPOSES OF THE LABOR MANAGEMENT RELATIONS ACT WAS TO
REMOVE THE OBSTRUCTIONS TO THE FREE FLOW OF COMMERCE RESULTING FROM
"POLITICAL STRIKES" INSTIGATED BY COMMUNISTS WHO HAD INFILTRATED THE
MANAGEMENT OF LABOR ORGANIZATIONS AND WERE SUBORDINATING LEGITIMATE
TRADE-UNION OBJECTIVES TO OBSTRUCTIVE STRIKES WHEN DICTATED BY
COMMUNIST PARTY LEADERS, OFTEN IN SUPPORT OF THE POLICIES OF A FOREIGN
GOVERNMENT.  PP. 387-389. 

2.  SECTION 9(H) DOES NOT MERELY WITHHOLD FROM NONCOMPLYING UNIONS
BENEFITS GRANTED BY THE GOVERNMENT; IT ALSO IMPOSES ON THEM A NUMBER OF
RESTRICTIONS WHICH WOULD NOT EXIST IF THE NATIONAL LABOR RELATIONS ACT
HAD NOT BEEN ENACTED.  HOWEVER, IT DOES NOT PROHIBIT PERSONS WHO DO NOT
SIGN THE PRESCRIBED AFFIDAVIT FROM HOLDING UNION OFFICE.  PP. 389-390. 

3.  THE REMEDY PROVIDED BY SEC. 9(H) BEARS REASONABLE RELATION TO THE
EVIL WHICH IT WAS DESIGNED TO REACH, SINCE CONGRESS MIGHT REASONABLY
FIND THAT COMMUNISTS, UNLIKE MEMBERS OF OTHER POLITICAL PARTIES, AND
PERSONS WHO BELIEVE IN THE OVERTHROW OF THE GOVERNMENT BY FORCE, UNLIKE
PERSONS OF OTHER BELIEFS, REPRESENT A CONTINUING DANGER OF DISRUPTIVE
POLITICAL STRIKES WHEN THEY HOLD POSITIONS OF UNION LEADERSHIP.  PP.
390-393. 

4.  SECTION 9(H) IS DESIGNED TO PROTECT THE PUBLIC, NOT AGAINST WHAT
COMMUNISTS AND OTHERS IDENTIFIED THEREIN ADVOCATE OR BELIEVE, BUT
AGAINST WHAT CONGRESS HAS CONCLUDED THEY HAVE DONE AND ARE LIKELY TO DO
AGAIN; AND THE PROBABLE EFFECTS OF THE STATUTE UPON THE FREE EXERCISE
OF THE RIGHT OF SPEECH AND ASSEMBLY MUST BE WEIGHED AGAINST THE
CONGRESSIONAL DETERMINATION THAT POLITICAL STRIKES ARE EVILS OF CONDUCT
WHICH CAUSE SUBSTANTIAL HARM TO INTERSTATE COMMERCE AND THAT COMMUNISTS
AND OTHERS IDENTIFIED BY SEC. 9(H) POSE CONTINUING THREATS TO THAT
PUBLIC INTEREST WHEN IN POSITIONS OF UNION LEADERSHIP.  PP. 393-400. 

5.  IN VIEW OF THE COMPLEXITY OF THE PROBLEM OF POLITICAL STRIKES AND
HOW TO DEAL WITH THEIR LEADERS, THE PUBLIC INTEREST IN THE GOOD FAITH
EXERCISE OF THE GREAT POWERS ENTRUSTED BY CONGRESS TO LABOR BARGAINING
REPRESENTATIVES UNDER THE NATIONAL LABOR RELATIONS ACT, THE FACT THAT
SEC. 9(H) TOUCHES ONLY A RELATIVELY FEW PERSONS WHO COMBINE CERTAIN
POLITICAL AFFILIATIONS OR BELIEFS WITH THE OCCUPANCY OF POSITIONS OF
GREAT POWER OVER THE ECONOMY OF THE COUNTRY, AND THE FACT THAT INJURY
TO INTERSTATE COMMERCE WOULD BE AN ACCOMPLISHED FACT BEFORE ANY
SANCTIONS COULD BE APPLIED, THE LEGISLATIVE JUDGMENT THAT INTERSTATE
COMMERCE MUST BE PROTECTED FROM A CONTINUING THREAT OF POLITICAL
STRIKES IS A PERMISSIBLE ONE IN THIS CASE.  PP. 400-406. 

6.  THE BELIEF IDENTIFIED IN SEC. 9(H) IS A BELIEF IN THE OBJECTIVE
OF OVERTHROW BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL METHODS OF
THE GOVERNMENT OF THE UNITED STATES AS IT NOW EXISTS UNDER THE
CONSTITUTION AND LAWS THEREOF.  THE SOLE EFFECT OF THE STATUTE UPON ONE
WHO HOLDS SUCH BELIEFS IS THAT HE MAY BE FORCED TO RELINQUISH HIS
POSITION AS A UNION LEADER.  SO CONSTRUED, IN THE LIGHT OF THE
CIRCUMSTANCES SURROUNDING THE PROBLEM, SEC. 9(H) DOES NOT UNDULY
INFRINGE FREEDOMS PROTECTED BY THE FIRST AMENDMENT.  PP. 406-412. 

7.  SECTION 9(H) IS NOT UNCONSTITUTIONALLY VAGUE; IT DOES NOT VIOLATE
THE PROHIBITION OF ARTICLE I, SEC. 9 OF THE CONSTITUTION AGAINST BILLS
OF ATTAINDER OR EX POST FACTO LAWS; AND IT DOES NOT REQUIRE A "TEST
OATH" CONTRARY TO THE PROVISION OF ARTICLE VI THAT "NO RELIGIOUS TEST
SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY OFFICE OR PUBLIC TRUST
UNDER THE UNITED STATES."  PP. 412-415. 

AMERICAN COMMUNICATIONS ASSN., C.I.O., ET AL. V. DOUDS, REGIONAL
DIRECTOR OF THE NATIONAL LABOR RELATIONS BOARD. 

NO. 10.  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK* . 

*TOGETHER WITH NO. 13, UNITED STEELWORKERS OF AMERICA ET AL. V.
NATIONAL LABOR RELATIONS BOARD, ON CERTIORARI TO THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT, ARGUED OCTOBER 11, 1949. 

NO. 10.  ALTHOUGH THE OFFICERS OF APPELLANT UNION HAD NOT FILED WITH
THE NATIONAL LABOR RELATIONS BOARD THE AFFIDAVIT PRESCRIBED BY SEC.
9(H) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR
MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 136, 146, 29 U.S.C. (SUPP.
III) SECS. 141, 159(H), APPELLANT, CLAIMING THAT THE SECTION WAS
UNCONSTITUTIONAL, SUED TO RESTRAIN THE BOARD FROM HOLDING A
REPRESENTATION ELECTION IN A BARGAINING UNIT IN WHICH APPELLANT WAS THE
EMPLOYEE REPRESENTATIVE, UNTIL A HEARING WAS GRANTED TO APPELLANT.  THE
THREE-JUDGE DISTRICT COURT DISMISSED THE COMPLAINT.  79 F.SUPP.  563. 
ON APPEAL TO THIS COURT, AFFIRMED, P. 415. 

NO. 13.  ON AN UNFAIR LABOR PRACTICE COMPLAINT FILED WITH THE
NATIONAL LABOR RELATIONS BOARD BY PETITIONER UNIONS, THE BOARD FOUND
THAT THE EMPLOYER HAD VIOLATED THE NATIONAL LABOR RELATIONS ACT IN
REFUSING TO BARGAIN ON THE SUBJECT OF PENSIONS; BUT THE BOARD POSTPONED
THE EFFECTIVE DATE OF ITS ORDER COMPELLING THE EMPLOYER TO BARGAIN,
PENDING THE UNIONS' COMPLIANCE WITH SEC. 9(H).  77 N.L.R.B. 1.  THE
COURT OF APPEALS SUSTAINED THE BOARD'S ACTION ON BOTH COUNTS.  170 F.2D
247.  THIS COURT DENIED CERTIORARI ON THE PENSION ISSUE, 336 U.S. 960,
BUT GRANTED CERTIORARI ON AN ISSUE REGARDING THE CONSTITUTIONALITY OF
SEC. 9(H).  335 U.S. 910.  AFFIRMED, P. 415. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT FOR DECISION THE CONSTITUTIONALITY OF SEC. 9(H)
OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT, 1947.  FN1  THIS SECTION, COMMONLY REFERRED TO AS THE
NON-COMMUNIST AFFIDAVIT PROVISION, READS AS FOLLOWS:  "NO INVESTIGATION
SHALL BE MADE BY THE (NATIONAL LABOR RELATIONS) 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 CONTEMPORANEOUSLY OR WITHIN THE PRECEDING TWELVE
MONTH PERIOD BY EACH OFFICER OF SUCH LABOR ORGANIZATION AND THE
OFFICERS OF ANY NATIONAL OR INTERNATIONAL LABOR ORGANIZATION OF WHICH
IT IS AN AFFILIATE OR CONSTITUENT UNIT THAT HE IS NOT A MEMBER OF THE
COMMUNIST PARTY OR AFFILIATED WITH SUCH PARTY, AND THAT HE DOES NOT
BELIEVE IN, AND IS NOT A MEMBER OF OR SUPPORTS ANY ORGANIZATION THAT
BELIEVES IN OR TEACHES, THE OVERTHROW OF THE UNITED STATES GOVERNMENT
BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL METHODS.  THE PROVISIONS
OF SECTION 35 A OF THE CRIMINAL CODE SHALL BE APPLICABLE IN RESPECT TO
SUCH AFFIDAVITS." 

IN NO. 10, THE CONSTITUTIONAL ISSUE WAS RAISED BY A SUIT TO RESTRAIN
THE BOARD FROM HOLDING A REPRESENTATION ELECTION IN A BARGAINING UNIT
IN WHICH APPELLANT UNION WAS THE EMPLOYEE REPRESENTATIVE, WITHOUT
PERMITTING ITS NAME TO APPEAR ON THE BALLOT, AND, SHOULD THE ELECTION
BE HELD, TO RESTRAIN THE BOARD FROM ANNOUNCING THE RESULTS OR
CERTIFYING THE VICTOR, UNTIL A HEARING WAS GRANTED TO APPELLANT.  A
HEARING HAD BEEN DENIED BECAUSE OF THE NONCOMPLIANCE WITH SEC. 9(H). 
THE COMPLAINT ALLEGED THAT THIS REQUIREMENT WAS UNCONSTITUTIONAL. 
APPELLEE'S MOTION TO DISMISS THE COMPLAINT WAS GRANTED BY THE STATUTORY
THREE-JUDGE COURT, 79 F.SUPP.  563(1948), WITH ONE JUDGE DISSENTING. 
SINCE THE CONSTITUTIONAL ISSUES WERE PROPERLY RAISED AND SUBSTANTIAL,
WE NOTED PROBABLE JURISDICTION. 

NO. 13 IS THE OUTCOME OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED
WITH THE BOARD BY PETITIONER UNIONS.  THE BOARD FOUND THAT INLAND STEEL
COMPANY HAD VIOLATED THE LABOR RELATIONS ACT IN REFUSING TO BARGAIN ON
THE SUBJECT OF PENSIONS.  77 N.L.R.B. 1(1948).  BUT THE BOARD POSTPONED
THE EFFECTIVE DATE OF ITS ORDER COMPELLING THE COMPANY TO BARGAIN,
PENDING THE UNIONS' COMPLIANCE WITH SEC. 9(H).  BOTH SIDES APPEALED:
THE COMPANY URGED THAT THE ACT HAD BEEN MISINTERPRETED; THE UNIONS
CONTENDED THAT SEC. 9(H) WAS UNCONSTITUTIONAL AND THEREFORE AN INVALID
CONDITION OF A BOARD ORDER.  WHEN THE COURT BELOW UPHELD THE BOARD ON
BOTH COUNTS, 170 F.2D 247(1948), WITH ONE JUDGE DISSENTING AS TO SEC.
9(H), BOTH SIDES FILED PETITIONS FOR CERTIORARI.  WE DENIED THE
PETITION PERTAINING TO THE PENSION ISSUE, 336 U.S. 960(1949), BUT
GRANTED THE PETITION DIRECTED AT THE AFFIDAVIT REQUIREMENT, 335 U.S.
910(1949), BECAUSE OF THE MANIFEST IMPORTANCE OF THE CONSTITUTIONAL
ISSUES INVOLVED. 

                                  I. 

THE CONSTITUTIONAL JUSTIFICATION FOR THE NATIONAL LABOR RELATIONS ACT
WAS THE POWER OF CONGRESS TO PROTECT INTERSTATE COMMERCE BY REMOVING
OBSTRUCTIONS TO THE FREE FLOW OF COMMERCE.  NATIONAL LABOR RELATIONS
BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1(1937).  THAT ACT WAS
DESIGNED TO REMOVE OBSTRUCTIONS CAUSED BY STRIKES AND OTHER FORMS OF
INDUSTRIAL UNREST, WHICH CONGRESS FOUND WERE ATTRIBUTABLE TO THE
INEQUALITY OF BARGAINING POWER BETWEEN UNORGANIZED EMPLOYEES AND THEIR
EMPLOYERS.  IT DID SO BY STRENGTHENING EMPLOYEE GROUPS, BY RESTRAINING
CERTAIN EMPLOYER PRACTICES, AND BY ENCOURAGING THE PROCESSES OF
COLLECTIVE BARGAINING. 

WHEN THE LABOR MANAGEMENT RELATIONS ACT WAS PASSED TWELVE YEARS
LATER, IT WAS THE VIEW OF CONGRESS THAT ADDITIONAL IMPEDIMENTS TO THE
FREE FLOW OF COMMERCE MADE AMENDMENT OF THE ORIGINAL ACT DESIRABLE.  IT
WAS STATED IN THE FINDINGS AND DECLARATION OF POLICY THAT: 

"EXPERIENCE HAS FURTHER DEMONSTRATED THAT CERTAIN PRACTICES BY SOME
LABOR ORGANIZATIONS, THEIR OFFICERS, AND MEMBERS HAVE THE INTENT OR THE
NECESSARY EFFECT OF BURDENING OR OBSTRUCTING COMMERCE BY PREVENTING THE
FREE FLOW OF GOODS IN SUCH COMMERCE THROUGH STRIKES AND OTHER FORMS OF
INDUSTRIAL UNREST OR THROUGH CONCERTED ACTIVITIES WHICH IMPAIR THE
INTEREST OF THE PUBLIC IN THE FREE FLOW OF SUCH COMMERCE.  THE
ELIMINATION OF SUCH PRACTICES IS A NECESSARY CONDITION TO THE ASSURANCE
OF THE RIGHTS HEREIN GUARANTEED."  FN2 

ONE SUCH OBSTRUCTION, WHICH IT WAS THE PURPOSE OF SEC. 9(H) OF THE
ACT TO REMOVE, WAS THE SO-CALLED "POLITICAL STRIKE."  SUBSTANTIAL
AMOUNTS OF EVIDENCE WERE PRESENTED TO VARIOUS COMMITTEES OF CONGRESS,
INCLUDING THE COMMITTEES IMMEDIATELY CONCERNED WITH LABOR LEGISLATION,
THAT COMMUNIST LEADERS OF LABOR UNIONS HAD IN THE PAST AND WOULD
CONTINUE IN THE FUTURE TO SUBORDINATE LEGITIMATE TRADE UNION OBJECTIVES
TO OBSTRUCTIVE STRIKES WHEN DICTATED BY PARTY LEADERS, OFTEN IN SUPPORT
OF THE POLICIES OF A FOREIGN GOVERNMENT.  AND OTHER EVIDENCE SUPPORTS
THE VIEW THAT SOME UNION LEADERS WHO HOLD TO A BELIEF IN VIOLENT
OVERTHROW OF THE GOVERNMENT FOR REASONS OTHER THAN LOYALTY TO THE
COMMUNIST PARTY LIKEWISE REGARD STRIKES AND OTHER FORMS OF DIRECT
ACTION DESIGNED TO SERVE ULTIMATE REVOLUTIONARY GOALS AS THE PRIMARY
OBJECTIVES OF LABOR UNIONS WHICH THEY CONTROL.  FN3  AT THE COMMITTEE
HEARINGS, THE INCIDENT MOST FULLY DEVELOPED WAS A STRIKE AT THE
MILWAUKEE PLANT OF THE ALLIS-CHALMERS MANUFACTURING COMPANY IN 1941,
WHEN THAT PLANT WAS PRODUCING VITAL MATERIALS FOR THE NATIONAL DEFENSE
PROGRAM.  A FULL HEARING WAS GIVEN NOT ONLY TO COMPANY OFFICIALS, BUT
ALSO TO LEADERS OF THE INTERNATIONAL AND LOCAL UNIONS INVOLVED. 
CONGRESS HEARD TESTIMONY THAT THE STRIKE HAD BEEN CALLED SOLELY IN
OBEDIENCE TO PARTY ORDERS FOR THE PURPOSE OF STARTING THE "SNOWBALLING
OF STRIKES" IN DEFENSE PLANTS.  FN4 

NO USEFUL PURPOSE WOULD BE SERVED BY SETTING OUT AT LENGTH THE
EVIDENCE BEFORE CONGRESS RELATING TO THE PROBLEM OF POLITICAL STRIKES,
NOR CAN WE ATTEMPT TO ASSESS THE VALIDITY OF EACH ITEM OF EVIDENCE.  IT
IS SUFFICIENT TO SAY THAT CONGRESS HAD A GREAT MASS OF MATERIAL BEFORE
IT WHICH TENDED TO SHOW THAT COMMUNISTS AND OTHERS PROSCRIBED BY THE
STATUTE HAD INFILTRATED UNION ORGANIZATIONS NOT TO SUPPORT AND FURTHER
TRADE UNION OBJECTIVES, INCLUDING THE ADVOCACY OF CHANGE BY DEMOCRATIC
METHODS, BUT TO MAKE THEM A DEVICE BY WHICH COMMERCE AND INDUSTRY MIGHT
BE DISRUPTED WHEN THE DICTATES OF POLITICAL POLICY REQUIRED SUCH
ACTION. 

                                 II. 

THE UNIONS CONTEND THAT THE NECESSARY EFFECT OF SEC. 9(H) IS TO MAKE
IT IMPOSSIBLE FOR PERSONS WHO CANNOT SIGN THE OATH TO BE OFFICERS OF
LABOR UNIONS.  THEY URGE THAT SUCH A STATUTE VIOLATES FUNDAMENTAL
RIGHTS GUARANTEED BY THE FIRST AMENDMENT:  THE RIGHT OF UNION OFFICERS
TO HOLD WHAT POLITICAL VIEWS THEY CHOOSE AND TO ASSOCIATE WITH WHAT
POLITICAL GROUPS THEY WILL, AND THE RIGHT OF UNIONS TO CHOOSE THEIR
OFFICERS WITHOUT INTERFERENCE FROM GOVERNMENT.  FN5  THE BOARD HAS
ARGUED, ON THE OTHER HAND, THAT SEC. 9(H) PRESENTS NO FIRST AMENDMENT
PROBLEM BECAUSE ITS SOLE SANCTION IS THE WITHDRAWAL FROM NONCOMPLYING
UNIONS OF THE "PRIVILEGE" OF USING ITS FACILITIES. 

NEITHER CONTENTION STATES THE PROBLEM WITH COMPLETE ACCURACY.  IT
CANNOT BE DENIED THAT THE PRACTICAL EFFECT OF DENIAL OF ACCESS TO THE
BOARD AND THE DENIAL OF A PLACE ON THE BALLOT IN REPRESENTATION
PROCEEDINGS IS NOT MERELY TO WITHHOLD BENEFITS GRANTED BY THE
GOVERNMENT BUT TO IMPOSE UPON NONCOMPLYING UNIONS A NUMBER OF
RESTRICTIONS WHICH WOULD NOT EXIST IF THE BOARD HAD NOT BEEN
ESTABLISHED.  FN6  THE STATUTE DOES NOT, HOWEVER, SPECIFICALLY FORBID
PERSONS WHO DO NOT SIGN THE AFFIDAVIT FROM HOLDING POSITIONS OF UNION
LEADERSHIP NOR REQUIRE THEIR DISCHARGE FROM OFFICE.  THE FACT IS THAT
SEC. 9(H) MAY WELL MAKE IT DIFFICULT FOR UNIONS TO REMAIN EFFECTIVE IF
THEIR OFFICERS DO NOT SIGN THE AFFIDAVITS.  HOW DIFFICULT DEPENDS UPON
THE CIRCUMSTANCES OF THE INDUSTRY, THE STRENGTH OF THE UNION AND ITS
ORGANIZATIONAL DISCIPLINE.  WE ARE, THEREFORE, NEITHER FREE TO TREAT
SEC. 9(H) AS IF IT MERELY WITHDRAWS A PRIVILEGE GRATUITOUSLY GRANTED BY
THE GOVERNMENT, NOR ABLE TO CONSIDER IT A LICENSING STATUTE PROHIBITING
THOSE PERSONS WHO DO NOT SIGN THE AFFIDAVIT FROM HOLDING UNION OFFICE. 
THE PRACTICALITIES OF THE SITUATION PLACE THE PROSCRIPTIONS OF SEC.
9(H) SOMEWHERE BETWEEN THOSE TWO EXTREMES.  THE DIFFICULT QUESTION THAT
EMERGES IS WHETHER, CONSISTENTLY WITH THE FIRST AMENDMENT, CONGRESS, BY
STATUTE, MAY EXERT THESE PRESSURES UPON LABOR UNIONS TO DENY POSITIONS
OF LEADERSHIP TO CERTAIN PERSONS WHO ARE IDENTIFIED BY PARTICULAR
BELIEFS AND POLITICAL AFFILIATIONS. 

                         III. 

THERE CAN BE NO DOUBT THAT CONGRESS MAY, UNDER ITS CONSTITUTIONAL
POWER TO REGULATE COMMERCE AMONG THE SEVERAL STATES, ATTEMPT TO PREVENT
POLITICAL STRIKES AND OTHER KINDS OF DIRECT ACTION DESIGNED TO BURDEN
AND INTERRUPT THE FREE FLOW OF COMMERCE.  WE THINK IT IS CLEAR, IN
ADDITION, THAT THE REMEDY PROVIDED BY SEC. 9(H) BEARS REASONABLE
RELATION TO THE EVIL WHICH THE STATUTE WAS DESIGNED TO REACH.  CONGRESS
COULD RATIONALLY FIND THAT THE COMMUNIST PARTY IS NOT LIKE OTHER
POLITICAL PARTIES IN ITS UTILIZATION OF POSITIONS OF UNION LEADERSHIP
AS MEANS BY WHICH TO BRING ABOUT STRIKES AND OTHER OBSTRUCTIONS OF
COMMERCE FOR PURPOSES OF POLITICAL ADVANTAGE, AND THAT MANY PERSONS WHO
BELIEVE IN OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE ARE ALSO
LIKELY TO RESORT TO SUCH TACTICS WHEN, AS OFFICERS, THEY FORMULATE
UNION POLICY. 

THE FACT THAT THE STATUTE IDENTIFIES PERSONS BY THEIR POLITICAL
AFFILIATIONS AND BELIEFS, WHICH ARE CIRCUMSTANCES ORDINARILY IRRELEVANT
TO PERMISSIBLE SUBJECTS OF GOVERNMENT ACTION, DOES NOT LEAD TO THE
CONCLUSION THAT SUCH CIRCUMSTANCES ARE NEVER RELEVANT.  IN RE SUMMERS,
325 U.S. 561(1945); HAMILTON V. REGENTS, 293 U.S. 245(1934).  WE HAVE
HELD THAT ALIENS MAY BE BARRED FROM CERTAIN OCCUPATIONS BECAUSE OF A
REASONABLE RELATION BETWEEN THAT CLASSIFICATION AND THE APPREHENDED
EVIL, CLARKE V. DECKEBACH, 274 U.S. 392(1927); PEARL ASSURANCE CO. V.
HARRINGTON, 313 U.S. 549(1941), EVEN THOUGH THE CONSTITUTION FORBIDS
ARBITRARY BANNING OF ALIENS FROM THE PURSUIT OF LAWFUL OCCUPATIONS. 
TRUAX V. RAICH, 239 U.S. 33(1915); TAKAHASHI V. FISH AND GAME
COMMISSION, 334 U.S. 410(1948).  EVEN DISTINCTIONS BASED SOLELY ON
ANCESTRY, WHICH WE DECLARED "ARE BY THEIR VERY NATURE ODIOUS TO A FREE
PEOPLE," HAVE BEEN UPHELD UNDER THE UNUSUAL CIRCUMSTANCES OF WARTIME. 
HIRABAYASHI V. UNITED STATES, 320 U.S. 81(1943).  FN7  IF ACCIDENTS OF
BIRTH AND ANCESTRY UNDER SOME CIRCUMSTANCES JUSTIFY AN INFERENCE
CONCERNING FUTURE CONDUCT, IT CAN HARDLY BE DOUBTED THAT VOLUNTARY
AFFILIATIONS AND BELIEFS JUSTIFY A SIMILAR INFERENCE WHEN DRAWN BY THE
LEGISLATURE ON THE BASIS OF ITS INVESTIGATIONS. 

THIS PRINCIPLE MAY BE ILLUSTRATED BY REFERENCE TO STATUTES DENYING
POSITIONS OF PUBLIC IMPORTANCE TO GROUPS OF PERSONS IDENTIFIED BY THEIR
BUSINESS AFFILIATIONS.  ONE FEDERAL STATUTE, FN8  FOR EXAMPLE, PROVIDES
THAT NO PARTNER OR EMPLOYEE OF A FIRM PRIMARILY ENGAGED IN UNDERWRITING
SECURITIES MAY BE A DIRECTOR OF A NATIONAL BANK.  THIS COURT NOTED THAT
THE STATUTE IS DIRECTED "TO THE PROBABILITY OR LIKELIHOOD, BASED ON THE
EXPERIENCE OF THE 1920'S, THAT A BANK DIRECTOR INTERESTED IN THE
UNDERWRITING BUSINESS MAY USE HIS INFLUENCE IN THE BANK TO INVOLVE IT
OR ITS CUSTOMERS IN SECURITIES WHICH HIS UNDERWRITING HOUSE HAS IN ITS
PORTFOLIO OR HAS COMMITTED ITSELF TO TAKE."  BOARD OF GOVERNORS V.
AGNEW, 329 U.S. 441, 447(1947).  IT WAS DESIGNED "TO REMOVE TEMPTING
OPPORTUNITIES FROM THE MANAGEMENT AND PERSONNEL OF MEMBER BANKS."  ID.
AT P. 449.  THERE WAS NO SHOWING, NOR WAS ONE REQUIRED, THAT ALL
EMPLOYEES OF UNDERWRITING FIRMS WOULD ENGAGE IN SUCH CONDUCT.  BECAUSE
OF THEIR BUSINESS CONNECTIONS, CARRYING AS THEY DO CERTAIN LOYALTIES,
INTERESTS AND DISCIPLINES, THOSE PERSONS WERE THOUGHT TO POSE A
CONTINUING THREAT OF PARTICIPATION IN THE HARMFUL ACTIVITIES DESCRIBED
ABOVE.  POLITICAL AFFILIATIONS OF THE KIND HERE INVOLVED, NO LESS THAN
BUSINESS AFFILIATIONS, PROVIDE RATIONAL GROUND FOR THE LEGISLATIVE
JUDGMENT THAT THOSE PERSONS PROSCRIBED BY SEC. 9(H) WOULD BE SUBJECT TO
"TEMPTING OPPORTUNITIES" TO COMMIT ACTS DEEMED HARMFUL TO THE NATIONAL
ECONOMY.  IN THIS RESPECT, SEC. 9(H) IS NOT UNLIKE A HOST OF OTHER
STATUTES WHICH PROHIBIT SPECIFIED GROUPS OF PERSONS FROM HOLDING
POSITIONS OF POWER AND PUBLIC INTEREST BECAUSE, IN THE LEGISLATIVE
JUDGMENT, THEY THREATEN TO ABUSE THE TRUST THAT IS A NECESSARY
CONCOMITANT OF THE POWER OF OFFICE. 

IF NO MORE WERE INVOLVED THAN POSSIBLE LOSS OF POSITION, THE
FOREGOING WOULD DISPOSE OF THE CASE.  BUT THE MORE DIFFICULT PROBLEM
HERE ARISES BECAUSE, IN DRAWING LINES ON THE BASIS OF BELIEFS AND
POLITICAL AFFILIATIONS, THOUGH IT MAY BE GRANTED THAT THE PROSCRIPTIONS
OF THE STATUTE BEAR A REASONABLE RELATION TO THE APPREHENDED EVIL,
CONGRESS HAS UNDENIABLY DISCOURAGED THE LAWFUL EXERCISE OF POLITICAL
FREEDOMS AS WELL.  STATED OTHERWISE, THE PROBLEM IS THIS:  COMMUNISTS,
WE MAY ASSUME, CARRY ON LEGITIMATE POLITICAL ACTIVITIES.  BELIEFS ARE
INVIOLATE.  CANTWELL V. CONNECTICUT, 310 U.S. 296, 303(1940).  CONGRESS
MIGHT REASONABLY FIND, HOWEVER, THAT COMMUNISTS, UNLIKE MEMBERS OF
OTHER POLITICAL PARTIES, AND PERSONS WHO BELIEVE IN OVERTHROW OF THE
GOVERNMENT BY FORCE, UNLIKE PERSONS OF OTHER BELIEFS, REPRESENT A
CONTINUING DANGER OF DISRUPTIVE POLITICAL STRIKES WHEN THEY HOLD
POSITIONS OF UNION LEADERSHIP.  BY EXERTING PRESSURES ON UNIONS TO DENY
OFFICE TO COMMUNISTS AND OTHERS IDENTIFIED THEREIN, SEC. 9(H)
UNDOUBTEDLY LESSENS THE THREAT TO INTERSTATE COMMERCE, BUT IT HAS THE
FURTHER NECESSARY EFFECT OF DISCOURAGING THE EXERCISE OF POLITICAL
RIGHTS PROTECTED BY THE FIRST AMENDMENT.  MEN WHO HOLD UNION OFFICES
OFTEN HAVE LITTLE CHOICE BUT TO RENOUNCE COMMUNISM OR GIVE UP THEIR
OFFICES.  UNIONS WHICH WISH TO DO SO ARE DISCOURAGED FROM ELECTING
COMMUNISTS TO OFFICE.  TO THE GRAVE AND DIFFICULT PROBLEM THUS
PRESENTED WE MUST NOW TURN OUR ATTENTION. 

                                 IV. 

THE UNIONS CONTEND THAT ONCE IT IS DETERMINED THAT THIS IS A FREE
SPEECH CASE, THE "CLEAR AND PRESENT DANGER" TEST MUST APPLY.  SEE
SCHENCK V. UNITED STATES, 249 U.S. 47(1919).  BUT THEY DISAGREE AS TO
HOW IT SHOULD BE APPLIED.  APPELLANT IN NO. 10 WOULD REQUIRE THAT
JOINING THE COMMUNIST PARTY OR THE EXPRESSION OF BELIEF IN OVERTHROW OF
THE GOVERNMENT BY FORCE BE SHOWN TO BE A CLEAR AND PRESENT DANGER OF
SOME SUBSTANTIVE EVIL, SINCE THOSE ARE THE DOCTRINES AFFECTED BY THE
STATUTE.  PETITIONER IN NO. 13, ON THE OTHER HAND, WOULD REQUIRE A
SHOWING THAT POLITICAL STRIKES, THE SUBSTANTIVE EVIL INVOLVED, ARE A
CLEAR AND PRESENT DANGER TO THE SECURITY OF THE NATION OR THREATEN
WIDESPREAD INDUSTRIAL UNREST. 

THIS CONFUSION SUGGESTS THAT THE ATTEMPT TO APPLY THE TERM, "CLEAR
AND PRESENT DANGER," AS A MECHANICAL TEST IN EVERY CASE TOUCHING FIRST
AMENDMENT FREEDOMS, WITHOUT REGARD TO THE CONTEXT OF ITS APPLICATION,
MISTAKES THE FORM IN WHICH AN IDEA WAS CAST FOR THE SUBSTANCE OF THE
IDEA.  THE PROVISIONS OF THE CONSTITUTION, SAID MR. JUSTICE HOLMES,
"ARE NOT MATHEMATICAL FORMULAS HAVING THEIR ESSENCE IN THEIR FORM; THEY
ARE ORGANIC LIVING INSTITUTIONS TRANSPLANTED FROM ENGLISH SOIL.  THEIR
SIGNIFICANCE IS VITAL NOT FORMAL; IT IS TO BE GATHERED NOT SIMPLY BY
TAKING THE WORDS AND A DICTIONARY, BUT BY CONSIDERING THEIR ORIGIN AND
THE LINE OF THEIR GROWTH."  GOMPERS V. UNITED STATES, 233 U.S. 604,
610(1914).  STILL LESS SHOULD THIS COURT'S INTERPRETATIONS OF THE
CONSTITUTION BE REDUCED TO THE STATUS OF MATHEMATICAL FORMULAS.  IT IS
THE CONSIDERATIONS THAT GAVE BIRTH TO THE PHRASE, "CLEAR AND PRESENT
DANGER," NOT THE PHRASE ITSELF, THAT ARE VITAL IN OUR DECISION OF
QUESTIONS INVOLVING LIBERTIES PROTECTED BY THE FIRST AMENDMENT. 

ALTHOUGH THE FIRST AMENDMENT PROVIDES THAT CONGRESS SHALL MAKE NO LAW
ABRIDGING THE FREEDOM OF SPEECH, PRESS OR ASSEMBLY, IT HAS LONG BEEN
ESTABLISHED THAT THOSE FREEDOMS THEMSELVES ARE DEPENDENT UPON THE POWER
OF CONSTITUTIONAL GOVERNMENT TO SURVIVE.  IF IT IS TO SURVIVE IT MUST
HAVE POWER TO PROTECT ITSELF AGAINST UNLAWFUL CONDUCT AND, UNDER SOME
CIRCUMSTANCES, AGAINST INCITEMENTS TO COMMIT UNLAWFUL ACTS.  FREEDOM OF
SPEECH THUS DOES NOT COMPREHEND THE RIGHT TO SPEAK ON ANY SUBJECT AT
ANY TIME.  THE IMPORTANT QUESTION THAT CAME TO THIS COURT IMMEDIATELY
AFTER THE FIRST WORLD WAR WAS NOT WHETHER, BUT HOW FAR, THE FIRST
AMENDMENT PERMITS THE SUPPRESSION OF SPEECH WHICH ADVOCATES CONDUCT
INIMICAL TO THE PUBLIC WELFARE.  FN9  SOME THOUGHT SPEECH HAVING A
REASONABLE TENDENCY TO LEAD TO SUCH CONDUCT MIGHT BE PUNISHED. 
JUSTICES HOLMES AND BRANDEIS TOOK A DIFFERENT VIEW.  THEY THOUGHT THAT
THE GREATER DANGER TO A DEMOCRACY LIES IN THE SUPPRESSION OF PUBLIC
DISCUSSION; THAT IDEAS AND DOCTRINES THOUGHT HARMFUL OR DANGEROUS ARE
BEST FOUGHT WITH WORDS.  ONLY, THEREFORE, WHEN FORCE IS VERY LIKELY TO
FOLLOW AN UTTERANCE BEFORE THERE IS A CHANCE FOR COUNTER-ARGUMENT TO
HAVE EFFECT MAY THAT UTTERANCE BE PUNISHED OR PREVENTED.  FN10  THUS,
"THE NECESSITY WHICH IS ESSENTIAL TO A VALID RESTRICTION DOES NOT EXIST
UNLESS SPEECH WOULD PRODUCE, OR IS INTENDED TO PRODUCE, A CLEAR AND
IMMINENT DANGER OF SOME SUBSTANTIVE EVIL WHICH THE STATE (OR CONGRESS)
CONSTITUTIONALLY MAY SEEK TO PREVENT  ...  " MR. JUSTICE BRANDEIS,
CONCURRING IN WHITNEY V. CALIFORNIA, 274 U.S. 357, 373.  BY THIS MEANS
THEY SOUGHT TO CONVEY THE PHILOSOPHY THAT, UNDER THE FIRST AMENDMENT,
THE PUBLIC HAS A RIGHT TO EVERY MAN'S VIEWS AND EVERY MAN THE RIGHT TO
SPEAK THEM.  GOVERNMENT MAY CUT HIM OFF ONLY WHEN HIS VIEWS ARE NO
LONGER MERELY VIEWS BUT THREATEN, CLEARLY AND IMMINENTLY, TO RIPEN INTO
CONDUCT AGAINST WHICH THE PUBLIC HAS A RIGHT TO PROTECT ITSELF. 

BUT THE QUESTION WITH WHICH WE ARE HERE FACED IS NOT THE SAME ONE
THAT JUSTICES HOLMES AND BRANDEIS FOUND CONVENIENT TO CONSIDER IN TERMS
OF CLEAR AND PRESENT DANGER.  GOVERNMENT'S INTEREST HERE IS NOT IN
PREVENTING THE DISSEMINATION OF COMMUNIST DOCTRINE OR THE HOLDING OF
PARTICULAR BELIEFS BECAUSE IT IS FEARED THAT UNLAWFUL ACTION WILL
RESULT THEREFROM IF FREE SPEECH IS PRACTICED.  ITS INTEREST IS IN
PROTECTING THE FREE FLOW OF COMMERCE FROM WHAT CONGRESS CONSIDERS TO BE
SUBSTANTIAL EVILS OF CONDUCT THAT ARE NOT THE PRODUCTS OF SPEECH AT
ALL.  SECTION 9(H), IN OTHER WORDS, DOES NOT INTERFERE WITH SPEECH
BECAUSE CONGRESS FEARS THE CONSEQUENCES OF SPEECH; IT REGULATES HARMFUL
CONDUCT WHICH CONGRESS HAS DETERMINED IS CARRIED ON BY PERSONS WHO MAY
BE IDENTIFIED BY THEIR POLITICAL AFFILIATIONS AND BELIEFS.  THE BOARD
DOES NOT CONTEND THAT POLITICAL STRIKES, THE SUBSTANTIVE EVIL AT WHICH
SEC. 9(H) IS AIMED, ARE THE PRESENT OR IMPENDING PRODUCTS OF ADVOCACY
OF THE DOCTRINES OF COMMUNISM OR THE EXPRESSION OF BELIEF IN OVERTHROW
OF THE GOVERNMENT BY FORCE.  ON THE CONTRARY, IT POINTS OUT THAT SUCH
STRIKES ARE CALLED BY PERSONS WHO, SO CONGRESS HAS FOUND, HAVE THE WILL
AND POWER TO DO SO WITHOUT ADVOCACY OR PERSUASION THAT SEEKS ACCEPTANCE
IN THE COMPETITION OF THE MARKET.  FN11  SPEECH MAY BE FOUGHT WITH
SPEECH.  FALSEHOODS AND FALLACIES MUST BE EXPOSED, NOT SUPPRESSED,
UNLESS THERE IS NOT SUFFICIENT TIME TO AVERT THE EVIL CONSEQUENCES OF
NOXIOUS DOCTRINE BY ARGUMENT AND EDUCATION.  THAT IS THE COMMAND OF THE
FIRST AMENDMENT.  BUT FORCE MAY AND MUST BE MET WITH FORCE.  SECTION
9(H) IS DESIGNED TO PROTECT THE PUBLIC NOT AGAINST WHAT COMMUNISTS AND
OTHERS IDENTIFIED THEREIN ADVOCATE OR BELIEVE, BUT AGAINST WHAT
CONGRESS HAS CONCLUDED THEY HAVE DONE AND ARE LIKELY TO DO AGAIN. 

THE CONTENTION OF PETITIONER IN NO. 13 THAT THIS COURT MUST FIND THAT
POLITICAL STRIKES CREATE A CLEAR AND PRESENT DANGER TO THE SECURITY OF
THE NATION OR OF WIDESPREAD INDUSTRIAL STRIFE IN ORDER TO SUSTAIN SEC.
9(H) SIMILARLY MISCONCEIVES THE PURPOSE THAT PHRASE WAS INTENDED TO
SERVE.  IN THAT VIEW, NOT THE RELATIVE CERTAINTY THAT EVIL CONDUCT WILL
RESULT FROM SPEECH IN THE IMMEDIATE FUTURE, BUT THE EXTENT AND GRAVITY
OF THE SUBSTANTIVE EVIL MUST BE MEASURED BY THE "TEST" LAID DOWN IN THE
SCHENCK CASE.  BUT THERE THE COURT SAID THAT:  "THE QUESTION IN EVERY
CASE IS WHETHER THE WORDS USED ARE USED IN SUCH CIRCUMSTANCES AND ARE
OF SUCH A NATURE AS TO CREATE A CLEAR AND PRESENT DANGER THAT THEY WILL
BRING ABOUT THE SUBSTANTIVE EVILS THAT CONGRESS HAS A RIGHT TO
PREVENT."  SCHENCK V. UNITED STATES, SUPRA AT 52. 

SO FAR AS THE SCHENCK CASE ITSELF IS CONCERNED, IMMINENT DANGER OF
ANY SUBSTANTIVE EVIL THAT CONGRESS MAY PREVENT JUSTIFIES THE
RESTRICTION OF SPEECH.  SINCE THAT TIME THIS COURT HAS DECIDED THAT
HOWEVER GREAT THE LIKELIHOOD THAT A SUBSTANTIVE EVIL WILL RESULT,
RESTRICTIONS ON SPEECH AND PRESS CANNOT BE SUSTAINED UNLESS THE EVIL
ITSELF IS "SUBSTANTIAL" AND "RELATIVELY SERIOUS," BRANDEIS, J.,
CONCURRING IN WHITNEY V. CALIFORNIA, SUPRA AT 374, 377, OR SOMETIMES
"EXTREMELY SERIOUS," BRIDGES V. CALIFORNIA, 314 U.S. 252, 263(1941). 
AND IT FOLLOWS THEREFROM THAT EVEN HARMFUL CONDUCT CANNOT JUSTIFY
RESTRICTIONS UPON SPEECH UNLESS SUBSTANTIAL INTERESTS OF SOCIETY ARE AT
STAKE.  BUT IN SUGGESTING THAT THE SUBSTANTIVE EVIL MUST BE SERIOUS AND
SUBSTANTIAL, IT WAS NEVER THE INTENTION OF THIS COURT TO LAY DOWN AN
ABSOLUTIST TEST MEASURED IN TERMS OF DANGER TO THE NATION.  WHEN THE
EFFECT OF A STATUTE OR ORDINANCE UPON THE EXERCISE OF FIRST AMENDMENT
FREEDOMS IS RELATIVELY SMALL AND THE PUBLIC INTEREST TO BE PROTECTED IS
SUBSTANTIAL, IT IS OBVIOUS THAT A RIGID TEST REQUIRING A SHOWING OF
IMMINENT DANGER TO THE SECURITY OF THE NATION IS AN ABSURDITY.  WE
RECENTLY DISMISSED FOR WANT OF SUBSTANTIALITY AN APPEAL IN WHICH A
CHURCH GROUP CONTENDED THAT ITS FIRST AMENDMENT RIGHTS WERE VIOLATED BY
A MUNICIPAL ZONING ORDINANCE PREVENTING THE BUILDING OF CHURCHES IN
CERTAIN RESIDENTIAL AREAS.  CORPORATION OF THE PRESIDING BISHOP OF THE
CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS V. PORTERVILLE, 338 U.S.
805(1949).  AND RECENT CASES IN THIS COURT INVOLVING CONTEMPT BY
PUBLICATION LIKEWISE HAVE NO MEANING IF IMMINENT DANGER OF NATIONAL
PERIL IS THE CRITERION.  FN12 

ON THE CONTRARY, HOWEVER, THE RIGHT OF THE PUBLIC TO BE PROTECTED
FROM EVILS OF CONDUCT, EVEN THOUGH FIRST AMENDMENT RIGHTS OF PERSONS OR
GROUPS ARE THEREBY IN SOME MANNER INFRINGED, HAS RECEIVED FREQUENT AND
CONSISTENT RECOGNITION BY THIS COURT.  WE HAVE NOTED THAT THE BLARING
SOUND TRUCK INVADES THE PRIVACY OF THE HOME AND MAY DROWN OUT OTHERS
WHO WISH TO BE HEARD.  KOVACS V. COOPER, 336 U.S. 77(1949).  THE
UNAUTHORIZED PARADE THROUGH CITY STREETS BY A RELIGIOUS OR POLITICAL
GROUP DISRUPTS TRAFFIC AND MAY PREVENT THE DISCHARGE OF THE MOST
ESSENTIAL OBLIGATIONS OF LOCAL GOVERNMENT.  COX V. NEW HAMPSHIRE, 312
U.S. 569, 574(1941).  THE EXERCISE OF PARTICULAR FIRST AMENDMENT RIGHTS
MAY FLY IN THE FACE OF THE PUBLIC INTEREST IN THE HEALTH OF CHILDREN,
PRINCE V. MASSACHUSETTS, 321 U.S. 158(1944), OR OF THE WHOLE COMMUNITY,
JACOBSON V. MASSACHUSETTS, 197 U.S. 11(1905), AND IT MAY BE OFFENSIVE
TO THE MORAL STANDARDS OF THE COMMUNITY, REYNOLDS V. UNITED STATES, 98
U.S. 145(1878); DAVIS V. BEASON, 133 U.S. 333(1890).  AND GOVERNMENT'S
OBLIGATION TO PROVIDE AN EFFICIENT PUBLIC SERVICE, UNITED PUBLIC
WORKERS V. MITCHELL, 330 U.S. 75(1947), AND ITS INTEREST IN THE
CHARACTER OF MEMBERS OF THE BAR, IN RE SUMMERS, 325 U.S. 561(1945),
SOMETIMES ADMIT OF LIMITATIONS UPON RIGHTS SET OUT IN THE FIRST
AMENDMENT.  AND SEE GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490, 499
501(1949).  WE HAVE NEVER HELD THAT SUCH FREEDOMS ARE ABSOLUTE.  THE
REASON IS PLAIN.  AS MR. CHIEF JUSTICE HUGHES PUT IT, "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."  COX V. NEW HAMPSHIRE,
SUPRA AT 574. 

WHEN PARTICULAR CONDUCT IS REGULATED IN THE INTEREST OF PUBLIC ORDER,
AND THE REGULATION RESULTS IN AN INDIRECT, CONDITIONAL, PARTIAL
ABRIDGMENT OF SPEECH, THE DUTY OF THE COURTS IS TO DETERMINE WHICH OF
THESE TWO CONFLICTING INTERESTS DEMANDS THE GREATER PROTECTION UNDER
THE PARTICULAR CIRCUMSTANCES PRESENTED.  THE HIGH PLACE IN WHICH THE
RIGHT TO SPEAK, THINK, AND ASSEMBLE AS YOU WILL WAS HELD BY THE FRAMERS
OF THE BILL OF RIGHTS AND IS HELD TODAY BY THOSE WHO VALUE LIBERTY BOTH
AS A MEANS AND AN END INDICATES THE SOLICITUDE WITH WHICH WE MUST VIEW
ANY ASSERTION OF PERSONAL FREEDOMS.  WE MUST RECOGNIZE, MOREOVER, THAT
REGULATION OF "CONDUCT" HAS ALL TOO FREQUENTLY BEEN EMPLOYED BY PUBLIC
AUTHORITY AS A CLOAK TO HIDE CENSORSHIP OF UNPOPULAR IDEAS.  WE HAVE
BEEN REMINDED THAT "IT IS NOT OFTEN IN THIS COUNTRY THAT WE NOW MEET
WITH DIRECT AND CANDID EFFORTS TO STOP SPEAKING OR PUBLICATION AS
SUCH.  MODERN INROADS ON THESE RIGHTS COME FROM ASSOCIATING THE
SPEAKING WITH SOME OTHER FACTOR WHICH THE STATE MAY REGULATE SO AS TO
BRING THE WHOLE WITHIN OFFICIAL CONTROL."  FN13 

ON THE OTHER HAND, LEGITIMATE ATTEMPTS TO PROTECT THE PUBLIC, NOT
FROM THE REMOTE POSSIBLE EFFECTS OF NOXIOUS IDEOLOGIES, BUT FROM
PRESENT EXCESSES OF DIRECT, ACTIVE CONDUCT, ARE NOT PRESUMPTIVELY BAD
BECAUSE THEY INTERFERE WITH AND, IN SOME OF ITS MANIFESTATIONS,
RESTRAIN THE EXERCISE OF FIRST AMENDMENT RIGHTS.  REYNOLDS V. UNITED
STATES, SUPRA; PRINCE V. MASSACHUSETTS, SUPRA; COX V. NEW HAMPSHIRE,
SUPRA; GIBONEY V. EMPIRE STORAGE CO., SUPRA.  IN ESSENCE, THE PROBLEM
IS ONE OF WEIGHING THE PROBABLE EFFECTS OF THE STATUTE UPON THE FREE
EXERCISE OF THE RIGHT OF SPEECH AND ASSEMBLY AGAINST THE CONGRESSIONAL
DETERMINATION THAT POLITICAL STRIKES ARE EVILS OF CONDUCT WHICH CAUSE
SUBSTANTIAL HARM TO INTERSTATE COMMERCE AND THAT COMMUNISTS AND OTHERS
IDENTIFIED BY SEC. 9(H) POSE CONTINUING THREATS TO THAT PUBLIC INTEREST
WHEN IN POSITIONS OF UNION LEADERSHIP.  WE MUST, THEREFORE, UNDERTAKE
THE "DELICATE AND DIFFICULT TASK  ...  TO WEIGH THE CIRCUMSTANCES AND
TO APPRAISE THE SUBSTANTIALITY OF THE REASONS ADVANCED IN SUPPORT OF
THE REGULATION OF THE FREE ENJOYMENT OF THE RIGHTS."  SCHNEIDER V.
STATE, 308 U.S. 147, 161(1939). 

                                  V. 

THE "REASONS ADVANCED IN SUPPORT OF THE REGULATION" ARE OF
CONSIDERABLE WEIGHT, AS EVEN THE OPPONENTS OF SEC. 9(H) AGREED.  THEY
ARE FAR FROM BEING "(MERE LEGISLATIVE PREFERENCES OR BELIEFS RESPECTING
MATTERS OF PUBLIC CONVENIENCE (WHICH) MAY WELL SUPPORT REGULATION
DIRECTED AT OTHER PERSONAL ACTIVITIES, BUT BE INSUFFICIENT TO JUSTIFY
SUCH AS DIMINISHES THE EXERCISE OF RIGHTS SO VITAL TO THE MAINTENANCE
OF DEMOCRATIC INSTITUTIONS."  FN14  IT SHOULD BE EMPHASIZED THAT
CONGRESS, NOT THE COURTS, IS PRIMARILY CHARGED WITH DETERMINATION OF
THE NEED FOR REGULATION OF ACTIVITIES AFFECTING INTERSTATE COMMERCE. 
THIS COURT MUST, IF SUCH REGULATION UNDULY INFRINGES PERSONAL FREEDOMS,
DECLARE THE STATUTE INVALID UNDER THE FIRST AMENDMENT'S COMMAND THAT
THE OPPORTUNITIES FOR FREE PUBLIC DISCUSSION BE MAINTAINED.  BUT
INSOFAR AS THE PROBLEM IS ONE OF DRAWING INFERENCES CONCERNING THE NEED
FOR REGULATION OF PARTICULAR FORMS OF CONDUCT FROM CONFLICTING
EVIDENCE, THIS COURT IS IN NO POSITION TO SUBSTITUTE ITS JUDGMENT AS TO
THE NECESSITY OR DESIRABILITY OF THE STATUTE FOR THAT OF CONGRESS.  CF.
UNITED PUBLIC WORKERS V. MITCHELL, SUPRA AT 95, 102.  IN BRIDGES V.
CALIFORNIA, SUPRA, WE SAID THAT EVEN RESTRICTIONS ON PARTICULAR KINDS
OF UTTERANCES, IF ENACTED BY A LEGISLATURE AFTER APPRAISAL OF THE NEED,
COME TO THIS COURT "ENCASED IN THE ARMOR WROUGHT BY PRIOR LEGISLATIVE
DELIBERATION."  314 U.S. AT 261.  COMPARE GITLOW V. NEW YORK, 268 U.S.
652(1925).  THE DEFERENCE DUE LEGISLATIVE DETERMINATION OF THE NEED FOR
RESTRICTION UPON PARTICULAR FORMS OF CONDUCT HAS FOUND REPEATED
EXPRESSION IN THIS COURT'S OPINIONS. 

WHEN COMPARED WITH ORDINANCES AND REGULATIONS DEALING WITH LITTERING
OF THE STREETS OR DISTURBANCE OF HOUSEHOLDERS BY ITINERANT PREACHERS,
THE RELATIVE SIGNIFICANCE AND COMPLEXITY OF THE PROBLEM OF POLITICAL
STRIKES AND HOW TO DEAL WITH THEIR LEADERS BECOMES AT ONCE APPARENT. 
IT MUST BE REMEMBERED THAT SEC. 9(H) IS NOT AN ISOLATED STATUTE DEALING
WITH A SUBJECT DIVORCED FROM THE PROBLEMS OF LABOR PEACE GENERALLY.  IT
IS A PART OF SOME VERY COMPLEX MACHINERY SET UP BY THE FEDERAL
GOVERNMENT FOR THE PURPOSE OF ENCOURAGING THE PEACEFUL SETTLEMENT OF
LABOR DISPUTES.  UNDER THE STATUTORY SCHEME, UNIONS WHICH BECOME
COLLECTIVE BARGAINING REPRESENTATIVES FOR GROUPS OF EMPLOYEES OFTEN
REPRESENT NOT ONLY MEMBERS OF THE UNION BUT NONUNION WORKERS OR MEMBERS
OF OTHER UNIONS AS WELL.  BECAUSE OF THE NECESSITY TO HAVE STRONG
UNIONS TO BARGAIN ON EQUAL TERMS WITH STRONG EMPLOYERS, INDIVIDUAL
EMPLOYEES ARE REQUIRED BY LAW TO SACRIFICE RIGHTS WHICH, IN SOME CASES,
ARE VALUABLE TO THEM.  SEE J.I. CASE CO. V. LABOR BOARD, 321 U.S.
332(1944).  THE LOSS OF INDIVIDUAL RIGHTS FOR THE GREATER BENEFIT OF
THE GROUP RESULTS IN A TREMENDOUS INCREASE IN THE POWER OF THE
REPRESENTATIVE OF THE GROUP - THE UNION.  BUT POWER IS NEVER WITHOUT
RESPONSIBILITY.  AND WHEN AUTHORITY DERIVES IN PART FROM GOVERNMENT'S
THUMB ON THE SCALES, THE EXERCISE OF THAT POWER BY PRIVATE PERSONS
BECOMES CLOSELY AKIN, IN SOME RESPECTS, TO ITS EXERCISE BY GOVERNMENT
ITSELF.  SEE GRAHAM V. BROTHERHOOD OF LOCOMOTIVE FIREMEN, 338 U.S.
232(1949); STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192(1944);
TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN, 323 U.S. 210(1944);
WALLACE CORP. V. LABOR BOARD, 323 U.S. 248, 255(1944); RAILWAY MAIL
ASSOCIATION V. CORSI, 326 U.S. 88, 94(1945). 

WE DO NOT SUGGEST THAT LABOR UNIONS WHICH UTILIZE THE FACILITIES OF
THE NATIONAL LABOR RELATIONS BOARD BECOME GOVERNMENT AGENCIES OR MAY BE
REGULATED AS SUCH.  BUT IT IS PLAIN THAT WHEN CONGRESS CLOTHES THE
BARGAINING REPRESENTATIVE "WITH POWERS COMPARABLE TO THOSE POSSESSED BY
A LEGISLATIVE BODY BOTH TO CREATE AND RESTRICT THE RIGHTS OF THOSE WHOM
IT REPRESENTS,"  FN15  THE PUBLIC INTEREST IN THE GOOD FAITH EXERCISE
OF THAT POWER IS VERY GREAT. 

WHAT OF THE EFFECTS OF SEC. 9(H) UPON THE RIGHTS OF SPEECH AND
ASSEMBLY OF THOSE PROSCRIBED BY ITS TERMS?  THE STATUTE DOES NOT
PREVENT OR PUNISH BY CRIMINAL SANCTIONS THE MAKING OF A SPEECH, THE
AFFILIATION WITH ANY ORGANIZATION, OR THE HOLDING OF ANY BELIEF.  BUT
AS WE HAVE NOTED, THE FACT THAT NO DIRECT RESTRAINT OR PUNISHMENT IS
IMPOSED UPON SPEECH OR ASSEMBLY DOES NOT DETERMINE THE FREE SPEECH
QUESTION.  UNDER SOME CIRCUMSTANCES, INDIRECT "DISCOURAGEMENTS"
UNDOUBTEDLY HAVE THE SAME COERCIVE EFFECT UPON THE EXERCISE OF FIRST
AMENDMENT RIGHTS AS IMPRISONMENT, FINES, INJUNCTIONS OR TAXES.  A
REQUIREMENT THAT ADHERENTS OF PARTICULAR RELIGIOUS FAITHS OR POLITICAL
PARTIES WEAR IDENTIFYING ARM-BANDS, FOR EXAMPLE, IS OBVIOUSLY OF THIS
NATURE. 

BUT WE HAVE HERE NO STATUTE WHICH IS EITHER FRANKLY AIMED AT THE
SUPPRESSION OF DANGEROUS IDEAS FN16  NOR ONE WHICH, ALTHOUGH OSTENSIBLY
AIMED AT THE REGULATION OF CONDUCT, MAY ACTUALLY "BE MADE THE
INSTRUMENT OF ARBITRARY SUPPRESSION OF FREE EXPRESSION OF VIEWS." 
HAGUE V. COMMITTEE FOR INDUSTRIAL ORGANIZATION, 307 U.S. 496,
516(1939).  FN17  THERE ARE HERE INVOLVED NONE OF THE ELEMENTS OF
CENSORSHIP OR PROHIBITION OF THE DISSEMINATION OF INFORMATION THAT WERE
PRESENT IN THE CASES MAINLY RELIED UPON BY THOSE ATTACKING THE
STATUTE.  FN18  THE "DISCOURAGEMENTS" OF SEC. 9(H) PROCEED, NOT AGAINST
THE GROUPS OR BELIEFS IDENTIFIED THEREIN, BUT ONLY AGAINST THE
COMBINATION OF THOSE AFFILIATIONS OR BELIEFS WITH OCCUPANCY OF A
POSITION OF GREAT POWER OVER THE ECONOMY OF THE COUNTRY.  CONGRESS HAS
CONCLUDED THAT SUBSTANTIAL HARM, IN THE FORM OF DIRECT, POSITIVE
ACTION, MAY BE EXPECTED FROM THAT COMBINATION.  IN THIS LEGISLATION,
CONGRESS DID NOT RESTRAIN THE ACTIVITIES OF THE COMMUNIST PARTY AS A
POLITICAL ORGANIZATION; NOR DID IT ATTEMPT TO STIFLE BELIEFS.  COMPARE
WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S.
624(1943).  FN19 SECTION 9(H) TOUCHES ONLY A RELATIVE HANDFUL OF
PERSONS, LEAVING THE GREAT MAJORITY OF PERSONS OF THE IDENTIFIED
AFFILIATIONS AND BELIEFS COMPLETELY FREE FROM RESTRAINT.  AND IT LEAVES
THOSE FEW WHO ARE AFFECTED FREE TO MAINTAIN THEIR AFFILIATIONS AND
BELIEFS SUBJECT ONLY TO POSSIBLE LOSS OF POSITIONS WHICH CONGRESS HAS
CONCLUDED ARE BEING ABUSED TO THE INJURY OF THE PUBLIC BY MEMBERS OF
THE DESCRIBED GROUPS. 

WE HAVE PREVIOUSLY HAD OCCASION TO CONSIDER OTHER STATUTES AND
REGULATIONS IN WHICH THE INTERESTS INVOLVED WERE, IN LARGE MEASURE,
LIKE THOSE NOW BEING CONSIDERED.  IN UNITED PUBLIC WORKERS V. MITCHELL,
SUPRA, WE UPHELD A STATUTE WHICH PROVIDED THAT EMPLOYEES OF THE FEDERAL
GOVERNMENT COULD NOT PARTICIPATE IN PARTISAN POLITICAL ACTIVITIES,
CONCEDEDLY A FIRST AMENDMENT RIGHT, IF THEY WOULD RETAIN THEIR
POSITIONS.  THE DECISION WAS NOT PUT UPON THE GROUND THAT GOVERNMENT
EMPLOYMENT IS A PRIVILEGE TO BE CONFERRED OR WITHHELD AT WILL.  FOR IT
WAS RECOGNIZED THAT CONGRESS MAY NOT "ENACT A REGULATION PROVIDING THAT
NO REPUBLICAN, JEW OR NEGRO SHALL BE APPOINTED TO FEDERAL OFFICE, OR
THAT NO FEDERAL EMPLOYEE SHALL ATTEND MASS OR TAKE ANY ACTIVE PART IN
MISSIONARY WORK."  330 U.S. AT 100.  BUT THE RATIONAL CONNECTION
BETWEEN THE PROHIBITIONS OF THE STATUTE AND ITS OBJECTS, THE LIMITED
SCOPE OF THE ABRIDGMENT OF FIRST AMENDMENT RIGHTS, AND THE LARGE PUBLIC
INTEREST IN THE EFFICIENCY OF GOVERNMENT SERVICE, WHICH CONGRESS HAD
FOUND NECESSITATED THE STATUTE, LED US TO THE CONCLUSION THAT THE
STATUTE MAY STAND CONSISTENTLY WITH THE FIRST AMENDMENT. 

SIMILARLY, IN IN RE SUMMERS, SUPRA, WE UPHELD THE REFUSAL OF A STATE
SUPREME COURT TO ADMIT TO MEMBERSHIP OF ITS BAR AN OTHERWISE QUALIFIED
PERSON ON THE SOLE GROUND THAT HE HAD CONSCIENTIOUS SCRUPLES AGAINST
WAR AND WOULD NOT USE FORCE TO PREVENT WRONG UNDER ANY CIRCUMSTANCES. 
SINCE HE COULD NOT, SO THE JUSTICES OF THE STATE COURT FOUND, SWEAR IN
GOOD FAITH TO UPHOLD THE STATE CONSTITUTION, WHICH REQUIRES SERVICE IN
THE MILITIA IN TIME OF WAR, WE HELD THAT REFUSAL TO PERMIT HIM TO
PRACTICE LAW DID NOT VIOLATE THE FIRST AMENDMENT, AS ITS COMMANDS ARE
INCORPORATED IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
AGAIN, THE RELATION BETWEEN THE OBLIGATIONS OF MEMBERSHIP IN THE BAR
AND SERVICE REQUIRED BY THE STATE IN TIME OF WAR, THE LIMITED EFFECT OF
THE STATE'S HOLDING UPON SPEECH AND ASSEMBLY, AND THE STRONG INTEREST
WHICH EVERY STATE COURT HAS IN THE PERSONS WHO BECOME OFFICERS OF THE
COURT WERE THOUGHT SUFFICIENT TO JUSTIFY THE STATE ACTION.  SEE ALSO
HAMILTON V. REGENTS, SUPRA. 

IT IS CONTENDED THAT THE PRINCIPLE THAT STATUTES TOUCHING FIRST
AMENDMENT FREEDOMS MUST BE NARROWLY DRAWN DICTATES THAT A STATUTE AIMED
AT POLITICAL STRIKES SHOULD MAKE THE CALLING OF SUCH STRIKES UNLAWFUL
BUT SHOULD NOT ATTEMPT TO BRING ABOUT THE REMOVAL OF UNION OFFICERS,
WITH ITS ATTENDANT EFFECT UPON FIRST AMENDMENT RIGHTS.  WE THINK,
HOWEVER, THAT THE LEGISLATIVE JUDGMENT THAT INTERSTATE COMMERCE MUST BE
PROTECTED FROM A CONTINUING THREAT OF SUCH STRIKES IS A PERMISSIBLE ONE
IN THIS CASE.  THE FACT THAT THE INJURY TO INTERSTATE COMMERCE WOULD BE
AN ACCOMPLISHED FACT BEFORE ANY SANCTIONS COULD BE APPLIED, THE
POSSIBILITY THAT A LARGE NUMBER OF SUCH STRIKES MIGHT BE CALLED AT A
TIME OF EXTERNAL OR INTERNAL CRISIS, AND THE PRACTICAL DIFFICULTIES
WHICH WOULD BE ENCOUNTERED IN DETECTING ILLEGAL ACTIVITIES OF THIS KIND
ARE FACTORS WHICH ARE PERSUASIVE THAT CONGRESS SHOULD NOT BE POWERLESS
TO REMOVE THE THREAT, NOT LIMITED TO PUNISHING THE ACT.  WE RECENTLY
SAID THAT "NOTHING IN THE CONSTITUTION PREVENTS CONGRESS FROM ACTING IN
TIME TO PREVENT POTENTIAL INJURY TO THE NATIONAL ECONOMY FROM BECOMING
A REALITY."  NORTH AMERICAN CO. V. SECURITIES & EXCHANGE COMMISSION,
327 U.S. 686, 711(1946).  WHILE THIS STATEMENT MAY BE SUBJECT TO SOME
QUALIFICATION, IT INDICATES THE WIDE SCOPE OF CONGRESSIONAL POWER TO
KEEP FROM THE CHANNELS OF COMMERCE THAT WHICH WOULD HINDER AND OBSTRUCT
SUCH COMMERCE. 

                                 VI. 

PREVIOUS DISCUSSION HAS CONSIDERED THE CONSTITUTIONAL QUESTIONS
RAISED BY SEC. 9(H) AS THEY APPLY ALIKE TO MEMBERS OF THE COMMUNIST
PARTY AND AFFILIATED ORGANIZATIONS AND TO PERSONS WHO BELIEVE IN
OVERTHROW OF THE GOVERNMENT BY FORCE.  THE BREADTH OF THE PROVISION
CONCERNING BELIEF IN OVERTHROW OF THE GOVERNMENT BY FORCE WOULD RAISE
ADDITIONAL QUESTIONS, HOWEVER, IF IT WERE READ VERY LITERALLY TO
INCLUDE ALL PERSONS WHO MIGHT, UNDER ANY CONCEIVABLE CIRCUMSTANCES,
SUBSCRIBE TO THAT BELIEF. 

BUT WE SEE NO REASON TO CONSTRUE THE STATUTE SO BROADLY.  IT IS
WITHIN THE POWER AND IS THE DUTY OF THIS COURT TO CONSTRUE A STATUTE SO
AS TO AVOID THE DANGER OF UNCONSTITUTIONALITY IF IT MAY BE DONE IN
CONSONANCE WITH THE LEGISLATIVE PURPOSE.  UNITED STATES V. CONGRESS OF
INDUSTRIAL ORGANIZATIONS, 335 U.S. 106, 120-121(1948); UNITED STATES V.
DELAWARE & HUDSON CO., 213 U.S. 366, 407-408(1909).  IN ENACTING SEC.
9(H), CONGRESS HAD AS ITS OBJECTIVE THE PROTECTION OF INTERSTATE
COMMERCE FROM DIRECT INTERFERENCE, NOT ANY INTENT TO DISTURB OR
PROSCRIBE BELIEFS AS SUCH.  ITS MANIFEST PURPOSE WAS TO BRING WITHIN
THE TERMS OF THE STATUTE ONLY THOSE PERSONS WHOSE BELIEFS STRONGLY
INDICATE A WILL TO ENGAGE IN POLITICAL STRIKES AND OTHER FORMS OF
DIRECT ACTION WHEN, AS OFFICERS, THEY DIRECT UNION ACTIVITIES.  THE
CONGRESSIONAL PURPOSE IS THEREFORE SERVED IF WE CONSTRUE THE CLAUSE,
"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," TO APPLY TO PERSONS AND ORGANIZATIONS WHO BELIEVE IN VIOLENT
OVERTHROW OF THE GOVERNMENT AS IT PRESENTLY EXISTS UNDER THE
CONSTITUTION AS AN OBJECTIVE, NOT MERELY A PROPHECY.  CONGRESS MIGHT
WELL FIND THAT SUCH PERSONS - THOSE WHO BELIEVE THAT THE PRESENT FORM
OF THE GOVERNMENT OF THE UNITED STATES SHOULD BE CHANGED BY FORCE OR
OTHER ILLEGAL METHODS - WOULD CARRY THAT OBJECTIVE INTO THEIR CONDUCT
OF UNION AFFAIRS BY CALLING POLITICAL STRIKES DESIGNED TO WEAKEN AND
DIVIDE THE AMERICAN PEOPLE, WHETHER THEY CONSIDER ACTUAL OVERTHROW OF
THE GOVERNMENT TO BE NEAR OR DISTANT.  IT IS TO THOSE PERSONS THAT SEC.
9(H) IS INTENDED TO APPLY, AND ONLY TO THEM.  WE HOLD, THEREFORE, THAT
THE BELIEF IDENTIFIED IN SEC. 9(H) IS A BELIEF IN THE OBJECTIVE OF
OVERTHROW BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL METHODS OF THE
GOVERNMENT OF THE UNITED STATES AS IT NOW EXISTS UNDER THE CONSTITUTION
AND LAWS THEREOF. 

AS THUS CONSTRUED, WE THINK THAT THE "BELIEF" PROVISION OF THE OATH
PRESENTS NO DIFFERENT PROBLEM FROM THAT PRESENT IN THAT PART OF THE
WE AGREE THAT ONE MAY NOT BE IMPRISONED OR EXECUTED BECAUSE HE HOLDS
PARTICULAR BELIEFS.  BUT TO ATTACK THE STRAW MAN OF "THOUGHT CONTROL"
IS TO IGNORE THE FACT THAT THE SOLE EFFECT OF THE STATUTE UPON ONE WHO
BELIEVES IN OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE - AND
DOES NOT DENY HIS BELIEF - IS THAT HE MAY BE FORCED TO RELINQUISH HIS
POSITION AS A UNION LEADER.  THAT FACT WAS CRUCIAL IN OUR DISCUSSION OF
THE STATUTE AS IT RELATES TO MEMBERSHIP IN THE COMMUNIST PARTY.  TO
QUOTE, WITH PERTINENT SUBSTITUTIONS, AN APT STATEMENT OF THAT
PRINCIPLE, POST, P. 434:  "THE ACT DOES NOT SUPPRESS OR OUTLAW THE
(BELIEF IN OVERTHROW OF THE GOVERNMENT), NOR PROHIBIT IT OR (THOSE WHO
HOLD THAT BELIEF) FROM ENGAGING IN ANY ABOVEBOARD ACTIVITY  ...  NO
INDIVIDUAL IS FORBIDDEN TO BE OR TO BECOME A PHILOSOPHICAL (BELIEVER IN
OVERTHROW OF GOVERNMENT) OR A FULL-FLEDGED MEMBER OF (A GROUP WHICH
HOLDS THAT BELIEF).  NO ONE IS PENALIZED FOR WRITING OR SPEAKING IN
FAVOR OF (SUCH A BELIEF) OR ITS PHILOSOPHY.  ALSO, THE ACT DOES NOT
REQUIRE OR FORBID ANYTHING WHATEVER TO ANY PERSON MERELY BECAUSE HE IS
(A BELIEVER IN OVERTHROW OF THE GOVERNMENT BY FORCE).  IT APPLIES ONLY
TO ONE WHO BECOMES AN OFFICER OF A LABOR UNION." 

IF THE PRINCIPLE THAT ONE MAY UNDER NO CIRCUMSTANCES BE REQUIRED TO
STATE HIS BELIEFS ON ANY SUBJECT NOR SUFFER THE LOSS OF ANY RIGHT OR
PRIVILEGE BECAUSE OF HIS BELIEFS BE A VALID ONE, ITS APPLICATION IN
OTHER POSSIBLE SITUATIONS BECOMES RELEVANT.  SUPPOSE, FOR EXAMPLE, THAT
A FEDERAL STATUTE PROVIDES THAT NO PERSON MAY BECOME A MEMBER OF THE
SECRET SERVICE FORCE ASSIGNED TO PROTECT THE PRESIDENT UNLESS HE SWEARS
THAT HE DOES NOT BELIEVE IN ASSASSINATION OF THE PRESIDENT.  IS THIS
BEYOND THE POWER OF CONGRESS, WHATEVER THE NEED REVEALED BY ITS
INVESTIGATIONS?  AN AFFIRMATIVE ANSWER HARDLY COMMENDS ITSELF TO REASON
UNLESS, INDEED, THE BILL OF RIGHTS HAS BEEN CONVERTED INTO A "SUICIDE
PACT."  TERMINIELLO V. CHICAGO, 337 U.S. 1, 37(1949)(DISSENTING
OPINION).  YET THE EXAMPLE CHOSEN IS FAR-FETCHED ONLY BECAUSE OF THE
MANIFEST ABSURDITY OF RELIANCE UPON AN OATH IN SUCH A SITUATION.  ONE
CAN HAVE NO DOUBT THAT THE SCREENING PROCESS IN THE SELECTION OF
PERSONS TO OCCUPY SUCH POSITIONS PROBES FAR DEEPER THAN MERE OATH
TAKING CAN POSSIBLY DO. 

TO HOLD THAT SUCH AN OATH IS PERMISSIBLE, ON THE OTHER HAND, IS TO
ADMIT THAT THE CIRCUMSTANCES UNDER WHICH ONE IS ASKED TO STATE HIS
BELIEF AND THE CONSEQUENCES WHICH FLOW FROM HIS REFUSAL TO DO SO OR HIS
DISCLOSURE OF A PARTICULAR BELIEF MAKE A DIFFERENCE.  THE REASON FOR
THE DIFFERENCE HAS BEEN POINTED OUT AT SOME LENGTH ABOVE.  FIRST, THE
LOSS OF A PARTICULAR POSITION IS NOT THE LOSS OF LIFE OR LIBERTY.  WE
HAVE NOTED THAT THE DISTINCTION IS ONE OF DEGREE, AND IT IS FOR THIS
REASON THAT THE EFFECT OF THE STATUTE IN PROSCRIBING BELIEFS - LIKE ITS
EFFECT IN RESTRAINING SPEECH OR FREEDOM OF ASSOCIATION - MUST BE
CAREFULLY WEIGHED BY THE COURTS IN DETERMINING WHETHER THE BALANCE
STRUCK BY CONGRESS COMPORTS WITH THE DICTATES OF THE CONSTITUTION.  BUT
IT IS INACCURATE TO SPEAK OF SEC. 9(H) AS "PUNISHING" OR "FORBIDDING"
THE HOLDING OF BELIEFS, ANY MORE THAN IT PUNISHES OR FORBIDS MEMBERSHIP
IN THE COMMUNIST PARTY. 

SECOND, THE PUBLIC INTEREST AT STAKE IN ASCERTAINING ONE'S BELIEFS
CANNOT AUTOMATICALLY BE ASSIGNED AT ZERO WITHOUT CONSIDERATION OF THE
CIRCUMSTANCES OF THE INQUIRY.  IF IT IS ADMITTED THAT BELIEFS ARE
SPRINGS TO ACTION, IT BECOMES HIGHLY RELEVANT WHETHER THE PERSON WHO IS
ASKED WHETHER HE BELIEVES IN OVERTHROW OF THE GOVERNMENT BY FORCE IS A
GENERAL WITH FIVE HUNDRED THOUSAND MEN AT HIS COMMAND OR A VILLAGE
CONSTABLE.  TO ARGUE THAT BECAUSE THE LATTER MAY NOT BE ASKED HIS
BELIEFS THE FORMER MUST NECESSARILY BE EXEMPT IS TO MAKE A FETISH OF
BELIEFS.  THE ANSWER TO THE IMPLICATION THAT IF THIS STATUTE IS UPHELD
"THEN THE POWER OF GOVERNMENT OVER BELIEFS IS AS UNLIMITED AS ITS POWER
OVER CONDUCT AND THE WAY IS OPEN TO FORCE DISCLOSURE OF ATTITUDES ON
ALL MANNER OF SOCIAL, ECONOMIC, MORAL AND POLITICAL ISSUES," POST, P.
438, IS THAT THAT RESULT DOES NOT FOLLOW "WHILE THIS COURT SITS."  FN20
THE CIRCUMSTANCES GIVING RISE TO THE INQUIRY, THEN, ARE LIKEWISE
FACTORS TO BE WEIGHED BY THE COURTS, GIVING DUE WEIGHT, OF COURSE, TO
THE CONGRESSIONAL JUDGMENT CONCERNING THE NEED.  IN SHORT, THE PROBLEM
OF BALANCING THE CONFLICTING INDIVIDUAL AND NATIONAL INTERESTS INVOLVED
IS NO DIFFERENT FROM THE PROBLEM PRESENTED BY PROSCRIPTIONS BASED UPON
POLITICAL AFFILIATIONS. 

INSOFAR AS A DISTINCTION BETWEEN BELIEFS AND POLITICAL AFFILIATIONS
IS BASED UPON ABSENCE OF ANY "OVERT ACT" IN THE FORMER CASE, IT IS
RELEVANT, IF AT ALL, IN CONNECTION WITH PROBLEMS OF PROOF.  IN PROVING
THAT ONE SWORE FALSELY THAT HE IS NOT A COMMUNIST, THE ACT OF JOINING
THE PARTY IS CRUCIAL.  PROOF THAT ONE LIED IN SWEARING THAT HE DOES NOT
BELIEVE IN OVERTHROW OF THE GOVERNMENT BY FORCE, ON THE OTHER HAND,
MUST CONSIST IN PROOF OF HIS MENTAL STATE.  TO THAT EXTENT THEY
DIFFER. 

TO STATE THE DIFFERENCE, HOWEVER, IS BUT TO RECOGNIZE THAT WHILE
OBJECTIVE FACTS MAY BE PROVED DIRECTLY, THE STATE OF A MAN'S MIND MUST
BE INFERRED FROM THE THINGS HE SAYS OR DOES.  OF COURSE WE AGREE THAT
THE COURTS CANNOT "ASCERTAIN THE THOUGHT THAT HAS HAD NO OUTWARD
MANIFESTATION."  BUT COURTS AND JURIES EVERY DAY PASS UPON KNOWLEDGE,
BELIEF AND INTENT - THE STATE OF MEN'S MINDS - HAVING BEFORE THEM NO
MORE THAN EVIDENCE OF THEIR WORDS AND CONDUCT, FROM WHICH, IN ORDINARY
HUMAN EXPERIENCE, MENTAL CONDITION MAY BE INFERRED.  SEE 2 WIGMORE,
EVIDENCE (3D ED.)  SECS.  244, 256 ET SEQ. FALSE SWEARING IN SIGNING
THE AFFIDAVIT MUST, AS IN OTHER CASES WHERE MENTAL STATE IS IN ISSUE,
BE PROVED BY THE OUTWARD MANIFESTATIONS OF STATE OF MIND.  IN THE
ABSENCE OF SUCH MANIFESTATIONS, WHICH ARE AS MUCH "OVERT ACTS" AS THE
ACT OF JOINING THE COMMUNIST PARTY, THERE CAN BE NO SUCCESSFUL
PROSECUTION FOR FALSE SWEARING.  FN21 

CONSIDERING THE CIRCUMSTANCES SURROUNDING THE PROBLEM - THE DEFERENCE
DUE THE CONGRESSIONAL JUDGMENT CONCERNING THE NEED FOR REGULATION OF
CONDUCT AFFECTING INTERSTATE COMMERCE AND THE EFFECT OF THE STATUTE
UPON RIGHTS OF SPEECH, ASSEMBLY AND BELIEF - WE CONCLUDE THAT SEC. 9(H)
OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT, 1947, DOES NOT UNDULY INFRINGE FREEDOMS PROTECTED BY THE
FIRST AMENDMENT.  THOSE WHO, SO CONGRESS HAS FOUND, WOULD SUBVERT THE
PUBLIC INTEREST CANNOT ESCAPE ALL REGULATION BECAUSE, AT THE SAME TIME,
THEY CARRY ON LEGITIMATE POLITICAL ACTIVITIES.  CF. VALENTINE V.
CHRESTENSEN, 316 U.S. 52(1942).  TO ENCOURAGE UNIONS TO DISPLACE THEM
FROM POSITIONS OF GREAT POWER OVER THE NATIONAL ECONOMY, WHILE AT THE
SAME TIME LEAVING FREE THE OUTLETS BY WHICH THEY MAY PURSUE LEGITIMATE
POLITICAL ACTIVITIES OF PERSUASION AND ADVOCACY, DOES NOT SEEM TO US TO
CONTRAVENE THE PURPOSES OF THE FIRST AMENDMENT.  THAT AMENDMENT
REQUIRES THAT ONE BE PERMITTED TO BELIEVE WHAT HE WILL.  IT REQUIRES
THAT ONE BE PERMITTED TO ADVOCATE WHAT HE WILL UNLESS THERE IS A CLEAR
AND PRESENT DANGER THAT A SUBSTANTIAL PUBLIC EVIL WILL RESULT
THEREFROM.  IT DOES NOT REQUIRE THAT HE BE PERMITTED TO BE THE KEEPER
OF THE ARSENAL. 

                                 VII. 

THERE REMAIN TWO CONTENTIONS WHICH MERIT DISCUSSION.  ONE IS THAT
SEC. 9(H) IS UNCONSTITUTIONALLY VAGUE.  THE OTHER IS THAT IT VIOLATES
THE MANDATE OF ART. I, SEC. 9 OF THE CONSTITUTION THAT "NO BILL OF
ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED." 

THE ARGUMENT AS TO VAGUENESS STRESSES THE BREADTH OF SUCH TERMS AS
"AFFILIATED," "SUPPORTS" AND "ILLEGAL OR UNCONSTITUTIONAL METHODS." 
THERE IS LITTLE DOUBT THAT IMAGINATION CAN CONJURE UP HYPOTHETICAL
CASES IN WHICH THE MEANING OF THESE TERMS WILL BE IN NICE QUESTION. 
THE APPLICABLE STANDARD, HOWEVER, IS NOT ONE OF WHOLLY CONSISTENT
ACADEMIC DEFINITION OF ABSTRACT TERMS.  IT IS, RATHER, THE PRACTICAL
CRITERION OF FAIR NOTICE TO THOSE TO WHOM THE STATUTE IS DIRECTED.  THE
PARTICULAR CONTEXT IS ALL IMPORTANT. 

THE ONLY CRIMINAL PUNISHMENT SPECIFIED IS THE APPLICATION OF SEC.
35(A) OF THE CRIMINAL CODE, 18 U.S.C. SEC. 1001, WHICH COVERS ONLY
THOSE FALSE STATEMENTS MADE "KNOWINGLY AND WILLFULLY."  THE QUESTION IN
ANY CRIMINAL PROSECUTION INVOLVING A NON-COMMUNIST AFFIDAVIT MUST
THEREFORE BE WHETHER THE AFFIANT ACTED IN GOOD FAITH OR KNOWINGLY LIED
CONCERNING HIS AFFILIATIONS, BELIEFS, SUPPORT OF ORGANIZATIONS, ETC.
AND SINCE THE CONSTITUTIONAL VICE IN A VAGUE OR INDEFINITE STATUTE IS
THE INJUSTICE TO THE ACCUSED IN PLACING HIM ON TRIAL FOR AN OFFENSE,
THE NATURE OF WHICH HE IS GIVEN NO FAIR WARNING, THE FACT THAT
PUNISHMENT IS RESTRICTED TO ACTS DONE WITH KNOWLEDGE THAT THEY
CONTRAVENE THE STATUTE MAKES THIS OBJECTION UNTENABLE.  AS THIS COURT
POINTED OUT IN UNITED STATES V. RAGEN, 314 U.S. 513, 524(1942), "A MIND
INTENT UPON WILLFUL EVASION IS INCONSISTENT WITH SURPRISED INNOCENCE." 
CF. OMAECHEVARRIA V. IDAHO, 246 U.S. 343(1918); HYGRADE PROVISION CO.
V. SHERMAN, 266 U.S. 497(1925); SCREWS V. UNITED STATES, 325 U.S.
91(1945).  WITHOUT CONSIDERING, THEREFORE, WHETHER IN OTHER
CIRCUMSTANCES THE WORDS USED IN SEC. 9(H) WOULD RENDER A STATUTE
UNCONSTITUTIONALLY VAGUE AND INDEFINITE, WE THINK THAT THE FACT THAT
UNDER SEC. 35(A) OF THE CRIMINAL CODE NO HONEST, UNTAINTED
INTERPRETATION OF THOSE WORDS IS PUNISHABLE REMOVES THE POSSIBILITY OF
CONSTITUTIONAL INFIRMITY. 

THE UNIONS' ARGUMENT AS TO BILL OF ATTAINDER CITES THE FAMILIAR
CASES, UNITED STATES V. LOVETT, 328 U.S. 303(1946); EX PARTE GARLAND, 4
WALL.  333(1867); CUMMINGS V. MISSOURI, 4 WALL.  277(1867).  THOSE
CASES AND THIS ALSO, ACCORDING TO THE ARGUMENT, INVOLVE THE
PROSCRIPTION OF CERTAIN OCCUPATIONS TO A GROUP CLASSIFIED ACCORDING TO
BELIEF AND LOYALTY.  BUT THERE IS A DECISIVE DISTINCTION:  IN THE
PREVIOUS DECISIONS THE INDIVIDUALS INVOLVED WERE IN FACT BEING PUNISHED
FOR PAST ACTIONS; WHEREAS IN THIS CASE THEY ARE SUBJECT TO POSSIBLE
LOSS OF POSITION ONLY BECAUSE THERE IS SUBSTANTIAL GROUND FOR THE
CONGRESSIONAL JUDGMENT THAT THEIR BELIEFS AND LOYALTIES WILL BE
TRANSFORMED INTO FUTURE CONDUCT.  OF COURSE, THE HISTORY OF THE PAST
CONDUCT IS THE FOUNDATION FOR THE JUDGMENT AS TO WHAT THE FUTURE
CONDUCT IS LIKELY TO BE; BUT THAT DOES NOT ALTER THE CONCLUSION THAT
SEC. 9(H) IS INTENDED TO PREVENT FUTURE ACTION RATHER THAN TO PUNISH
PAST ACTION. 

THIS DISTINCTION IS EMPHASIZED BY THE FACT THAT MEMBERS OF THOSE
GROUPS IDENTIFIED IN SEC. 9(H) ARE FREE TO SERVE AS UNION OFFICERS IF
AT ANY TIME THEY RENOUNCE THE ALLEGIANCES WHICH CONSTITUTED A BAR TO
SIGNING THE AFFIDAVIT IN THE PAST.  PAST CONDUCT, ACTUAL OR THREATENED
BY THEIR PREVIOUS ADHERENCE TO AFFILIATIONS AND BELIEFS MENTIONED IN
SEC. 9(H), IS NOT A BAR TO RESUMPTION OF THE POSITION.  IN THE CASES
RELIED UPON BY THE UNIONS ON THE OTHER HAND, THIS COURT HAS EMPHASIZED
THAT, SINCE THE BASIS OF DISQUALIFICATION WAS PAST ACTION OR LOYALTY,
NOTHING THAT THOSE PERSONS PROSCRIBED BY ITS TERMS COULD EVER DO WOULD
CHANGE THE RESULT.  SEE UNITED STATES V. LOVETT, SUPRA, AT P. 314;
CUMMINGS V. MISSOURI, SUPRA, AT P. 327.  HERE THE INTENTION IS TO
FORESTALL FUTURE DANGEROUS ACTS; THERE IS NO ONE WHO MAY NOT, BY A
VOLUNTARY ALTERATION OF THE LOYALTIES WHICH IMPEL HIM TO ACTION, BECOME
ELIGIBLE TO SIGN THE AFFIDAVIT.  WE CANNOT CONCLUDE THAT THIS SECTION
IS A BILL OF ATTAINDER. 

IN THEIR ARGUMENT ON THIS POINT, THE UNIONS SEEK SOME ADVANTAGE FROM
REFERENCES TO ENGLISH HISTORY PERTINENT TO A RELIGIOUS TEST OATH.  THAT
EXPERIENCE IS WRITTEN INTO OUR CONSTITUTION IN THE FOLLOWING PROVISION
OF ARTICLE VI:  "THE SENATORS AND REPRESENTATIVES BEFORE MENTIONED, AND
THE MEMBERS OF THE SEVERAL STATE LEGISLATURES, AND ALL EXECUTIVE AND
JUDICIAL OFFICERS, BOTH OF THE UNITED STATES AND OF THE SEVERAL STATES,
SHALL BE BOUND BY OATH OR AFFIRMATION, TO SUPPORT THIS CONSTITUTION;
BUT NO RELIGIOUS TEST SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY
OFFICE OR PUBLIC TRUST UNDER THE UNITED STATES."  IT IS OBVIOUS THAT
NOT ALL OATHS WERE ABOLISHED; THE MERE FACT THAT SEC. 9(H) IS IN OATH
FORM HARDLY RISES TO THE STATURE OF A CONSTITUTIONAL OBJECTION.  ALL
THAT WAS FORBIDDEN WAS A "RELIGIOUS TEST."  WE DO NOT THINK THAT THE
OATH HERE INVOLVED CAN RIGHTLY BE TAKEN AS FALLING WITHIN THAT
CATEGORY. 

CLEARLY THE CONSTITUTION PERMITS THE REQUIREMENT OF OATHS BY
OFFICEHOLDERS TO UPHOLD THE CONSTITUTION ITSELF.  THE OBVIOUS
IMPLICATION IS THAT THOSE UNWILLING TO TAKE SUCH AN OATH ARE TO BE
BARRED FROM PUBLIC OFFICE.  FOR THE PRESIDENT, A SPECIFIC OATH WAS SET
FORTH IN THE CONSTITUTION ITSELF.  ART. II, SEC. 1.  AND CONGRESS HAS
DETAILED AN OATH FOR OTHER FEDERAL OFFICERS.  FN22  OBVIOUSLY, THE
FRAMERS OF THE CONSTITUTION THOUGHT THAT THE EXACTION OF AN AFFIRMATION
OF MINIMAL LOYALTY TO THE GOVERNMENT WAS WORTH THE PRICE OF WHATEVER
DEPRIVATION OF INDIVIDUAL FREEDOM OF CONSCIENCE WAS INVOLVED.  ALL THAT
WE NEED HOLD HERE IS THAT THE CASTING OF SEC. 9(H) INTO THE MOLD OF AN
OATH DOES NOT INVALIDATE IT, IF IT IS OTHERWISE CONSTITUTIONAL. 

WE CONCLUDE THAT SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, AS HEREIN
CONSTRUED, IS COMPATIBLE WITH THE FEDERAL CONSTITUTION AND MAY STAND. 
THE JUDGMENTS OF THE COURTS BELOW ARE THEREFORE AFFIRMED. 

FN1  61 STAT. 136, 146, 29 U.S.C. (SUPP. III) SEC. 141, SEC. 159(H),
AMENDING THE NATIONAL LABOR RELATIONS ACT OF 1935, 49 STAT. 449, 29
U.S.C. SEC. 151 ET SEQ. 

FN2  29 U.S.C. (SUPP. III) SEC. 151. 

FN3  A DETAILED DESCRIPTION OF THE AIMS AND TACTICS OF THE SOCIALIST
WORKERS PARTY, FOR EXAMPLE, MAY BE FOUND IN THE TRANSCRIPT OF RECORD IN
DUNNE V. UNITED STATES, 320 U.S. 790(1943), CERTIORARI DENIED.  WE CITE
THE RECORD AS EVIDENCE ONLY AND EXPRESS NO OPINION WHATEVER ON THE
MERITS OF THE CASE.  SEE RECORD, PP. 267-271, 273-274, 330-332, 439,
475, 491-492, 495-496, 535, 606, 683-688, 693, 737, 804-805. 

FN4  SEE HEARINGS BEFORE HOUSE COMMITTEE ON EDUCATION AND LABOR ON
BILLS TO AMEND AND REPEAL THE NATIONAL LABOR RELATIONS ACT, 80TH CONG.,
1ST SESS. 3611-3615. 

FN5  THE FIRST AMENDMENT PROVIDES:  "CONGRESS SHALL MAKE NO LAW  ...
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."    FN6  FOR EXAMPLE, A UNION WHOSE OFFICERS DO
NOT FILE DO NOT FILE AN AFFIDAVIT IN COMPLIANCE WITH SEC. 9(H) MAY NOT
ENTER INTO A UNION SHOP CONTRACT WITH AN EMPLOYER, AS IT WAS FREE TO DO
BEFORE PASSAGE OF THE NATIONAL LABOR RELATIONS ACT.  A NONCOMPLYING
UNION IS EXCLUDED FROM THE BALLOT IN REPRESENTATION PROCEEDINGS.  IF
ANOTHER UNION IS CERTIFIED, THE NONCOMPLYING UNION INCURS THE
DISABILITIES OF SECS. 8(B)(4)(C) AND 303(A)(3), AS IT WOULD NOT HAVE
DONE PRIOR TO 1935.  SIMILARLY, CERTAIN STRIKES AND BOYCOTTS ARE
PROHIBITED TO NONCOMPLYING UNIONS BY SECS. 8(B)(4)(B), 8(B)(4)(C) AND
8(B)(4)(D) OF THE ACT. 

FN7  SEE ALSO LURIA V. UNITED STATES, 231 U.S. 9(1913); MACKENZIE V.
HARE, 239 U.S. 299(1915); LAPIDES V. CLARK, 85 U.S. APP. D.C. 101, 176
F.2D 619(1949). 

FN8  SECTIONS 30 AND 32 OF THE BANKING ACT OF 1933, 48 STAT. 162,
193, 194, AS AMENDED, 49 STAT. 684, 709, 12 U.S.C. SECS. 77, 78. 

FN9  SEE SCHENCK V. UNITED STATES, 249 U.S. 47(1919); FROHWERK V.
UNITED STATES, 249 U.S. 204(1919); DEBS V. UNITED STATES, 249 U.S.
211(1919); ABRAMS V. UNITED STATES, 250 U.S. 616(1919); SCHAEFER V.
UNITED STATES, 251 U.S. 466(1920); PIERCE V. UNITED STATES, 252 U.S.
239(1920); GITLOW V. NEW YORK, 268 U.S. 652(1925). 

FN10  "  ...  NO DANGER FLOWING FROM SPEECH CAN BE DEEMED CLEAR AND
PRESENT, UNLESS THE INCIDENCE OF THE EVIL APPREHENDED IS SO IMMINENT
THAT IT MAY BEFALL BEFORE THERE IS OPPORTUNITY FOR FULL DISCUSSION.  IF
THERE BE TIME TO EXPOSE THROUGH DISCUSSION THE FALSEHOOD AND FALLACIES,
TO AVERT THE EVIL BY THE PROCESSES OF EDUCATION, THE REMEDY TO BE
APPLIED IS MORE SPEECH, NOT ENFORCED SILENCE."  MR. JUSTICE BRANDEIS,
CONCURRING IN WHITNEY V. CALIFORNIA, 274 U.S. 357, 377(1927). 

FN11  SEE MR. JUSTICE HOLMES, DISSENTING IN ABRAMS V. UNITED STATES,
250 U.S. 616, 630(1919). 

FN12  BRIDGES V. CALIFORNIA, 314 U.S. 252(1941); PENNEKAMP V.
FLORIDA, 328 U.S. 331(1946); CRAIG V. HARNEY, 331 U.S. 367(1947). 

FN13  MR. JUSTICE JACKSON, CONCURRING IN THOMAS V. COLLINS, 323 U.S.
516, 547(1945). 

FN14  SCHNEIDER V. STATE, 308 U.S. 147, 161(1939). 

FN15  STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192, 202(1944). 

FN16  CF. CASES CITED IN NOTE 9, SUPRA, AND WHITNEY V. CALIFORNIA,
274 U.S. 357(1927); FISKE V. KANSAS, 274 U.S. 380(1927); STROMBERG V.
CALIFORNIA, 283 U.S. 359(1931); NEAR V. MINNESOTA, 283 U.S. 697(1931);
DE JONGE V. OREGON, 299 U.S. 353(1937); HERNDON V. LOWRY, 301 U.S.
242(1937), 

FN17  CF. GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233(1936); THOMAS
V. COLLINS, 323 U.S. 516(1945). 

FN18  IN COX V. NEW HAMPSHIRE, 312 U.S. 569(1941), MR. CHIEF JUSTICE
HUGHES, SPEAKING FOR A UNANIMOUS COURT, STATED THE CONSIDERATIONS
THOUGHT CONTROLLING IN A NUMBER OF THESE CASES:  "IN LOVELL V. GRIFFIN,
(303 U.S. 444), THE ORDINANCE PROHIBITED THE DISTRIBUTION OF LITERATURE
OF ANY KIND AT ANY TIME, AT ANY PLACE, AND IN ANY MANNER WITHOUT A
PERMIT FROM THE CITY MANAGER, THUS STRIKING AT THE VERY FOUNDATION OF
THE FREEDOM OF THE PRESS BY SUBJECTING IT TO LICENSE AND CENSORSHIP. 
IN HAGUE V. COMMITTEE FOR INDUSTRIAL ORGANIZATION, (307 U.S. 496), THE
ORDINANCE DEALT WITH THE EXERCISE OF THE RIGHT OF ASSEMBLY FOR THE
PURPOSE OF COMMUNICATING VIEWS; IT DID NOT MAKE COMFORT OR CONVENIENCE
IN THE USE OF STREETS THE STANDARD OF OFFICIAL ACTION BUT ENABLED THE
LOCAL OFFICIAL ABSOLUTELY TO REFUSE A PERMIT ON HIS MERE OPINION THAT
SUCH REFUSAL WOULD PREVENT 'RIOTS, DISTURBANCES OR DISORDERLY
ASSEMBLAGE.'  THE ORDINANCE THUS CREATED, AS THE RECORD DISCLOSED, AN
INSTRUMENT OF ARBITRARY SUPPRESSION OF OPINIONS ON PUBLIC QUESTIONS. 
THE COURT SAID THAT 'UNCONTROLLED OFFICIAL SUPPRESSION OF THE PRIVILEGE
CANNOT BE MADE A SUBSTITUTE FOR THE DUTY TO MAINTAIN ORDER IN
CONNECTION WITH THE EXERCISE OF THE RIGHT.'  IN SCHNEIDER V. STATE,
(308 U.S. 147)(P. 163) THE ORDINANCE WAS DIRECTED AT CANVASSING AND
BANNED UNLICENSED COMMUNICATION OF ANY VIEWS, OR THE ADVOCACY OF ANY
CAUSE, FROM DOOR TO DOOR, SUBJECT ONLY TO THE POWER OF A POLICE OFFICER
TO DETERMINE AS A CENSOR WHAT LITERATURE MIGHT BE DISTRIBUTED AND WHO
MIGHT DISTRIBUTE IT.  IN CANTWELL V. CONNECTICUT, (310 U.S. 296)(P.
305) THE STATUTE DEALT WITH THE SOLICITATION OF FUNDS FOR RELIGIOUS
CAUSES AND AUTHORIZED AN OFFICIAL TO DETERMINE WHETHER THE CAUSE WAS A
RELIGIOUS ONE AND TO REFUSE A PERMIT IF HE DETERMINED IT WAS NOT, THUS
ESTABLISHING A CENSORSHIP OF RELIGION."  312 U.S. AT 577-578. 

FN19  IN THE BARNETTE CASE, THE COURT WAS CAREFUL TO POINT OUT THAT
THE SOLE INTEREST OF THE STATE WAS IN SECURING UNIFORMITY OF BELIEF BY
COMPELLING UTTERANCE OF A PRESCRIBED PLEDGE, AND THAT REFUSAL TO COMPLY
WITH THE STATE ORDER RESULTED IN PUNISHMENT FOR BOTH PARENT AND CHILD:
"THE FREEDOM ASSERTED BY THESE APPELLEES DOES NOT BRING THEM INTO
COLLISION WITH RIGHTS ASSERTED BY ANY OTHER INDIVIDUAL.  IT IS SUCH
CONFLICTS WHICH MOST FREQUENTLY REQUIRE INTERVENTION OF THE STATE TO
DETERMINE WHERE THE RIGHTS OF ONE END AND THOSE OF ANOTHER BEGIN.  BUT
THE REFUSAL OF THESE PERSONS TO PARTICIPATE IN THE CEREMONY DOES NOT
INTERFERE WITH OR DENY RIGHTS OF OTHERS TO DO SO.  NOR IS THERE ANY
QUESTION IN THIS CASE THAT THEIR BEHAVIOR IS PEACEABLE AND ORDERLY. 
THE SOLE CONFLICT IS BETWEEN AUTHORITY AND RIGHTS OF THE INDIVIDUAL. 
THE STATE ASSERTS POWER TO CONDITION ACCESS TO PUBLIC EDUCATION ON
MAKING A PRESCRIBED SIGN AND PROFESSION AND AT THE SAME TIME TO COERCE
ATTENDANCE BY PUNISHING BOTH PARENT AND CHILD.  THE LATTER STAND ON A
RIGHT OF SELF-DETERMINATION IN MATTERS THAT TOUCH INDIVIDUAL OPINION
AND PERSONAL ATTITUDE."  319 U.S. AT 630-631. 

FN20  PANHANDLE OIL CO. V. KNOX, 277 U.S. 218, 223(1928)(DISSENTING
OPINION).  THE WORDS OF MR. JUSTICE HOLMES, WHILE WRITTEN CONCERNING A
VERY DIFFERENT PROBLEM, ARE WELL WORTH REREADING IN THIS CONNECTION: 

"IT SEEMS TO ME THAT THE STATE COURT WAS RIGHT.  I SHOULD SAY PLAINLY
RIGHT, BUT FOR THE EFFECT OF CERTAIN DICTA OF CHIEF JUSTICE MARSHALL
WHICH CULMINATED IN OR RATHER WERE FOUNDED UPON HIS OFTEN QUOTED
PROPOSITION THAT THE POWER TO TAX IS THE POWER TO DESTROY.  IN THOSE
DAYS IT WAS NOT RECOGNIZED AS IT IS TODAY THAT MOST OF THE DISTINCTIONS
OF THE LAW ARE DISTINCTIONS OF DEGREE.  IF THE STATES HAD ANY POWER IT
WAS ASSUMED THAT THEY HAD ALL POWER, AND THAT THE NECESSARY ALTERNATIVE
WAS TO DENY IT ALTOGETHER.  BUT THIS COURT WHICH SO OFTEN HAS DEFEATED
THE ATTEMPT TO TAX IN CERTAIN WAYS CAN DEFEAT AN ATTEMPT TO
DISCRIMINATE OR OTHERWISE GO TOO FAR WITHOUT WHOLLY ABOLISHING THE
POWER TO TAX.  THE POWER TO TAX IS NOT THE POWER TO DESTROY WHILE THIS
COURT SITS.  THE POWER TO FIX RATES IS THE POWER TO DESTROY IF
UNLIMITED, BUT THIS COURT WHILE IT ENDEAVORS TO PREVENT CONFISCATION
DOES NOT PREVENT THE FIXING OF RATES.  A TAX IS NOT AN UNCONSTITUTIONAL
REGULATION IN EVERY CASE WHERE AN ABSOLUTE PROHIBITION OF SALES WOULD
BE ONE.  HATCH V. REARDON, 204 U.S. 152, 162." 

FN21  WHILE IT IS TRUE THAT STATE OF MIND IS ORDINARILY RELEVANT ONLY
WHEN IT IS INCIDENTAL TO, AND DETERMINES THE QUALITY OF, SOME OVERT ACT
(BUT CF. HAMILTON V. REGENTS, 293 U.S. 245(1934); IN RE SUMMERS, 325
U.S. 561(1945)), THE FACT MUST NOT BE OVERLOOKED THAT MENTAL STATE IN
SUCH CASES IS A DISTINCT ISSUE, 2 WIGMORE, EVIDENCE (3D ED.)  SECS. 
244, 266, OF WHICH THE "OVERT ACT" MAY OR MAY NOT BE ANY PROOF.  FOR
EXAMPLE, THE PHYSICAL FACTS SURROUNDING A DEATH BY SHOOTING MAY BE AS
CONSISTENT WITH A FINDING OF ACCIDENT AS OF MURDER.  WILFULLNESS,
MALICE AND PREMEDITATION MUST THEREFORE BE PROVED BY EVIDENCE WHOLLY
APART FROM THE ACT OF SHOOTING. 

FN22  23 STAT. 22, 5 U.S.C. SEC. 16. 

MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK AND MR. JUSTICE MINTON TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE COURT'S OPINION EXCEPT AS
TO PART VII. 

"SCARCELY ANY POLITICAL QUESTION ARISES IN THE UNITED STATES,"
OBSERVED THE PERCEPTIVE DE TOCQUEVILLE AS EARLY AS 1835, "THAT IS NOT
RESOLVED, SOONER OR LATER, INTO A JUDICIAL QUESTION."  1 DEMOCRACY IN
AMERICA 280(BRADLEY ED. 1948).  AND SO IT WAS TO BE EXPECTED THAT THE
CONFLICT OF POLITICAL IDEAS NOW DIVIDING THE WORLD MORE PERVASIVELY
THAN ANY SINCE THIS NATION WAS FOUNDED WOULD GIVE RISE TO CONTROVERSIES
FOR ADJUDICATION BY THIS COURT.  "THE JUDICIAL POWER" WITH WHICH ALONE
THIS COURT IS INVESTED COMES INTO OPERATION ONLY AS TO ISSUES THAT THE
LONG TRADITION OF OUR HISTORY HAS MADE APPROPRIATE FOR DISPOSITION BY
JUDGES.  WHEN SUCH QUESTIONS ARE PROPERLY HERE THEY ARE TO BE DISPOSED
OF WITHIN THOSE STRICT CONFINES OF LEGAL REASONING WHICH LAYMEN TOO
OFTEN DEEM INVIDIOUSLY TECHNICAL.  THIS RESTRICTION TO JUSTICIABLE
ISSUES TO BE DISPOSED OF IN THE UNRHETORICAL MANNER OF OPINION-WRITING
REFLECTS RESPECT BY THE JUDICIARY FOR ITS VERY LIMITED, HOWEVER GREAT,
FUNCTION IN THE PROPER DISTRIBUTION OF AUTHORITY IN OUR POLITICAL
SCHEME SO AS TO AVOID AUTOCRATIC RULE.  NO DOUBT ISSUES LIKE THOSE NOW
BEFORE US CANNOT BE COMPLETELY SEVERED FROM THE POLITICAL AND EMOTIONAL
CONTEXT OUT OF WHICH THEY EMERGE.  FOR THAT VERY REASON ADJUDICATION
TOUCHING SUCH MATTERS SHOULD NOT GO ONE WHIT BEYOND THE IMMEDIATE
ISSUES REQUIRING DECISION, AND WHAT IS SAID IN SUPPORT OF THE
ADJUDICATION SHOULD INSULATE THE COURT AS FAR AS IS RATIONALLY POSSIBLE
FROM THE POLITICAL CONFLICT BENEATH THE LEGAL ISSUES. 

THE CENTRAL PROBLEM PRESENTED BY THE ENACTMENT NOW CHALLENGED IS THE
POWER OF CONGRESS, AS PART OF ITS COMPREHENSIVE SCHEME FOR INDUSTRIAL
PEACE, TO KEEP COMMUNISTS OUT OF CONTROLLING POSITIONS IN LABOR UNIONS
AS A CONDITION TO UTILIZING THE OPPORTUNITIES AFFORDED BY THE NATIONAL
LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT,
1947.  FN1  WRAPPED UP IN THIS PROBLEM ARE TWO GREAT CONCERNS OF OUR
DEMOCRATIC SOCIETY - THE RIGHT OF ASSOCIATION FOR ECONOMIC AND SOCIAL
BETTERMENT AND THE RIGHT OF ASSOCIATION FOR POLITICAL PURPOSES.  IT IS
TOO LATE IN THE DAY TO DENY TO CONGRESS THE POWER TO PROMOTE INDUSTRIAL
PEACE IN ALL THE FAR-FLUNG RANGE OF INTERSTATE COMMERCE.  TO THAT END,
CONGRESS MAY TAKE APPROPRIATE MEASURES TO PROTECT INTERSTATE COMMERCE
AGAINST DISRUPTIVE CONDUCT NOT FAIRLY RELATED TO INDUSTRIAL BETTERMENT
WITHIN OUR DEMOCRATIC FRAMEWORK.  IT IS ONE THING TO FORBID HERETICAL
POLITICAL THOUGHT MERELY AS HERETICAL THOUGHT.  IT IS QUITE A DIFFERENT
THING FOR CONGRESS TO RESTRICT ATTEMPTS TO BRING ABOUT ANOTHER SCHEME
OF SOCIETY, NOT THROUGH APPEAL TO REASON AND THE USE OF THE BALLOT AS
DEMOCRACY HAS BEEN PURSUED THROUGHOUT OUR HISTORY, BUT THROUGH AN
ASSOCIATED EFFORT TO DISRUPT INDUSTRY. 

THUS STATED, IT WOULD MAKE UNDUE INROADS UPON THE POLICY-MAKING POWER
OF CONGRESS TO DENY IT THE RIGHT TO PROTECT THE INDUSTRIAL PEACE OF THE
COUNTRY BY EXCLUDING FROM LEADERSHIP IN TRADE UNIONS WHICH SEEK TO
AVAIL THEMSELVES OF THE MACHINERY OF THE LABOR MANAGEMENT RELATIONS ACT
THOSE WHO ARE UNITED FOR ACTION AGAINST OUR DEMOCRATIC PROCESS.  THIS
IS SO NOT BECAUSE CONGRESS IN AFFORDING A FACILITY CAN SUBJECT IT TO
ANY CONDITION IT PLEASES.  IT CANNOT.  CONGRESS MAY WITHHOLD ALL SORTS
OF FACILITIES FOR A BETTER LIFE BUT IF IT AFFORDS THEM IT CANNOT MAKE
THEM AVAILABLE IN AN OBVIOUSLY ARBITRARY WAY OR EXACT SURRENDER OF
FREEDOMS UNRELATED TO THE PURPOSE OF THE FACILITIES.  CONGRESS SURELY
CAN PROVIDE FOR CERTAIN CLEARLY RELEVANT QUALIFICATIONS OF
RESPONSIBILITY ON THE PART OF LEADERS OF TRADE UNIONS INVOKING THE
MACHINERY OF THE LABOR MANAGEMENT RELATIONS ACT.  THE ESSENTIAL
QUESTION NOW IS WHETHER CONGRESS MAY DETERMINE THAT MEMBERSHIP OF UNION
OFFICERS IN THE COMMUNIST PARTY CREATES SUCH AN OBVIOUS HAZARD TO THE
PEACEPROMOTING PURPOSES OF THE ACT THAT ACCESS TO THE MACHINERY OF THE
ACT MAY BE DENIED UNIONS WHICH PREFER THEIR FREEDOM TO HAVE OFFICERS
WHO ARE COMMUNISTS TO THEIR OPPORTUNITIES UNDER THE ACT. 

WHEN WE ARE DEALING WITH CONFLICTING FREEDOMS, AS WE ARE ON THE
ISSUES BEFORE US, WE ARE DEALING WITH LARGE CONCEPTS THAT TOO READILY
LEND THEMSELVES TO EXPLOSIVE RHETORIC.  WE ARE ALSO DEALING WITH
MATTERS AS TO WHICH DIFFERENT NUANCES IN PHRASING THE SAME CONCLUSION
LEAD TO DIFFERENT EMPHASIS AND THEREBY EVENTUALLY MAY LEAD TO DIFFERENT
CONCLUSIONS IN SLIGHTLY DIFFERENT SITUATIONS.  FROM MY POINT OF VIEW
THESE ARE ISSUES AS TO WHICH IT WOULD BE DESIRABLE FOR THE MEMBERS OF
THE COURT TO WRITE FULL-LENGTH INDIVIDUAL OPINIONS.  THE COURT'S
BUSINESS IN OUR TIME BEING WHAT IT IS PRECLUDES THIS.  IT MUST SUFFICE
FOR ME TO SAY THAT THE JUDGMENT OF CONGRESS THAT TRADE UNIONS WHICH ARE
GUIDED BY OFFICERS WHO ARE COMMITTED BY TIES OF MEMBERSHIP TO THE
COMMUNIST PARTY MUST FOREGO THE ADVANTAGES OF THE LABOR MANAGEMENT
RELATIONS ACT IS REASONABLY RELATED TO THE ACCOMPLISHMENT OF THE
PURPOSES WHICH CONGRESS CONSTITUTIONALLY HAD A RIGHT TO PURSUE.  TO
DENY THAT THAT IS A JUDGMENT WHICH CONGRESS MAY, AS A MATTER OF
EXPERIENCE, ENFORCE EVEN THOUGH IT INVOLVES THE INDICATED RESTRICTIONS
UPON FREEDOM WOULD BE TO MAKE NAIVETE A REQUIREMENT IN JUDGES.  SINCE
THE COURT'S OPINION, IN THE MAIN, EXPRESSES THE POINT OF VIEW WHICH I
HAVE VERY INADEQUATELY SKETCHED, I JOIN IT EXCEPT AS QUALIFIED IN WHAT
FOLLOWS. 

CONGRESS WAS CONCERNED WITH WHAT IT JUSTIFIABLY DEEMED TO BE THE
DISORGANIZING PURPOSES OF COMMUNISTS WHO HOLD POSITIONS OF OFFICIAL
POWER IN LABOR UNIONS, OR, AT THE LEAST, WHAT IT MIGHT WELL DEEM THEIR
LACK OF DISINTERESTED DEVOTION TO THE BASIC TENETS OF THE AMERICAN
TRADE UNION MOVEMENT BECAUSE OF A HIGHER LOYALTY TO A POTENTIALLY
CONFLICTING CAUSE.  BUT CONGRESS DID NOT CHOOSE MERELY TO LIMIT THE
FREEDOM OF LABOR UNIONS WHICH SEEK THE ADVANTAGES OF THE LABOR
MANAGEMENT RELATIONS ACT TO BE LED BY OFFICERS WHO ARE NOT WILLING TO
DISAVOW MEMBERSHIP IN THE COMMUNIST PARTY.  THE SCOPE OF ITS
LEGISLATION WAS MUCH MORE EXTENSIVE. 

LEGISLATION, IN ORDER TO EFFECTUATE ITS PURPOSES, MAY DEAL WITH
RADIATIONS BEYOND THE IMMEDIATE INCIDENCE OF A MISCHIEF.  IF A
PARTICULAR MISCHIEF IS WITHIN THE SCOPE OF CONGRESSIONAL POWER, WIDE
DISCRETION MUST BE ALLOWED TO CONGRESS FOR DEALING WITH IT
EFFECTIVELY.  IT IS NOT THE BUSINESS OF THIS COURT TO RESTRICT CONGRESS
TOO NARROWLY IN DEFINING THE EXTENT OR THE NATURE OF REMEDIES.  HOW TO
CURB AN EVIL, WHAT REMEDIES WILL BE EFFECTIVE; THE REACH OF A
PARTICULAR EVIL AND THEREFORE THE APPROPRIATE SCOPE OF A REMEDY AGAINST
IT - ALL THESE ARE IN THE MAIN MATTERS OF LEGISLATIVE POLICY NOT OPEN
TO JUDICIAL CONDEMNATION.  THERE ARE, OF COURSE, SOME SPECIFIC
RESTRICTIONS IN DEVISING REMEDIES.  NO MATTER WHAT ITS NOTIONS OF
POLICY MAY BE, THE EIGHTH AMENDMENT, FOR EXAMPLE, BARS CONGRESS FROM
INFLICTING "CRUEL AND UNUSUAL PUNISHMENTS."  I DO NOT SUPPOSE IT IS
EVEN ARGUABLE THAT CONGRESS COULD ASK FOR A DISCLOSURE OF HOW UNION
OFFICERS CAST THEIR BALLOTS AT THE LAST PRESIDENTIAL ELECTION EVEN
THOUGH THE SECRET BALLOT IS A RELATIVELY RECENT INSTITUTION.  SEE
WIGMORE, THE AUSTRALIAN BALLOT SYSTEM 3, 15, 22(1889).  SO ALSO
CONGRESS MUST KEEP WITHIN THE CONTOURS OF THE "DUE PROCESS" REQUIREMENT
OF THE FIFTH AMENDMENT, VAGUE AS THEY ARE.  IN ORDER TO CURB A MISCHIEF
CONGRESS CANNOT BE SO INDEFINITE IN ITS REQUIREMENTS THAT EFFORT TO
MEET THEM RAISES HAZARDS UNFAIR TO THOSE WHO SEEK OBEDIENCE OR INVOLVES
SURRENDER OF FREEDOMS WHICH EXCEEDS WHAT MAY FAIRLY BE EXACTED.  THESE
RESTRICTIONS ON THE BROAD SCOPE OF LEGISLATIVE DISCRETION ARE MERELY
THE LAW'S APPLICATION OF THE HOMELY SAWS THAT ONE SHOULD NOT THROW OUT
THE BABY WITH THE BATH OR BURN THE HOUSE IN ORDER TO ROAST THE PIG. 

IN MY VIEW CONGRESS HAS CAST ITS NET TOO INDISCRIMINATELY IN SOME OF
THE PROVISIONS OF SEC. 9(H).  TO ASK AVOWAL THAT ONE "DOES NOT BELIEVE
IN, AND IS NOT A MEMBER OF OR SUPPORTS ANY ORGANIZATION THAT BELIEVES
IN  ...  THE OVERTHROW OF THE UNITED STATES GOVERNMENT  ...  BY ANY
ILLEGAL OR UNCONSTITUTIONAL METHODS" IS TO ASK ASSURANCES FROM MEN
REGARDING MATTERS THAT OPEN THE DOOR TOO WIDE TO MERE SPECULATION OR
UNCERTAINTY.  IT IS ASKING MORE THAN RIGHTFULLY MAY BE ASKED OF
ORDINARY MEN TO TAKE OATH THAT A METHOD IS NOT "UNCONSTITUTIONAL" OR
"ILLEGAL" WHEN CONSTITUTIONALITY OR LEGALITY IS FREQUENTLY DETERMINED
BY THIS COURT BY THE CHANCE OF A SINGLE VOTE.  FN2  IT DOES NOT MEET
THE DIFFICULTY TO SUGGEST THAT THE HAZARD OF A PROSECUTION FOR PERJURY
IS NOT GREAT SINCE THE CONVICTIONS FOR PERJURY MUST BE FOUNDED ON
WILLFUL FALSITY.  TO SUGGEST THAT A JUDGE MIGHT NOT BE JUSTIFIED IN
ALLOWING A CASE TO GO TO A JURY, OR THAT A JURY WOULD NOT BE JUSTIFIED
IN CONVICTING, OR THAT, ON THE POSSIBLE HAPPENING OF THESE EVENTS, AN
APPELLATE COURT WOULD BE COMPELLED TO REVERSE, OR, FINALLY, THAT RESORT
COULD BE HAD TO THIS COURT FOR REVIEW ON A PETITION FOR CERTIORARI,
AFFORDS SAFEGUARDS TOO TENUOUS TO NEUTRALIZE THE DANGER.  SEE MUSSER V.
UTAH, 333 U.S. 95.  THE HAZARDS THAT WERE FOUND TO BE FATAL TO THE
LEGISLATION UNDER REVIEW IN WINTERS V. NEW YORK, 333 U.S. 507, APPEAR
TRIVIAL BY COMPARISON WITH WHAT IS HERE INVOLVED. 

IT IS NOT MERELY THE HAZARD OF PROSECUTION FOR PERJURY THAT IS
DEPENDENT ON A CORRECT DETERMINATION AS TO THE IMPLICATIONS OF A MAN'S
BELIEF OR THE BELIEF OF OTHERS WITH WHOM HE MAY BE ASSOCIATED IN AN
ORGANIZATION CONCERNED WITH POLITICAL AND SOCIAL ISSUES.  IT SHOULD NOT
BE ASSUMED THAT OATHS WILL BE LIGHTLY TAKEN; FASTIDIOUSLY SCRUPULOUS
REGARD FOR THEM SHOULD BE ENCOURAGED.  THEREFORE, IT BECOMES MOST
RELEVANT WHETHER AN OATH WHICH CONGRESS ASKS MEN TO TAKE MAY OR MAY NOT
BE THOUGHT TO TOUCH MATTERS THAT MAY NOT BE SUBJECTED TO COMPULSORY
AVOWAL OF BELIEF OR DISBELIEF.  IN THE UNCERTAINTY OF THE REACH OF SEC.
9(H), ONE MAY WITHHOLD AN OATH BECAUSE OF CONSCIENTIOUS SCRUPLES THAT
IT COVERS BELIEFS WHOSE DISCLOSURE CONGRESS COULD NOT IN TERMS EXACT. 
IF A MAN HAS SCRUPLES ABOUT TAKING AN OATH BECAUSE OF UNCERTAINTY AS TO
WHETHER IT ENCOMPASSES SOME BELIEFS THAT ARE INVIOLATE, THE SURRENDER
OF ABSTENTION IS INVITED BY THE AMBIGUITY OF THE CONGRESSIONAL
EXACTION.  AS MR. JUSTICE JACKSON'S OPINION INDICATES, PROBING INTO
MEN'S THOUGHTS TRENCHES ON THOSE ASPECTS OF INDIVIDUAL FREEDOM WHICH WE
RIGHTLY REGARD AS THE MOST CHERISHED ASPECTS OF WESTERN CIVILIZATION. 
THE CARDINAL ARTICLE OF FAITH OF OUR CIVILIZATION IS THE INVIOLATE
CHARACTER OF THE INDIVIDUAL.  A MAN CAN BE REGARDED AS AN INDIVIDUAL
AND NOT AS A FUNCTION OF THE STATE ONLY IF HE IS PROTECTED TO THE
LARGEST POSSIBLE EXTENT IN HIS THOUGHTS AND IN HIS BELIEFS AS THE
CITADEL OF HIS PERSON.  ENTRY INTO THAT CITADEL CAN BE JUSTIFIED, IF AT
ALL, ONLY IF STRICTLY CONFINED SO THAT THE BELIEF THAT A MAN IS ASKED
TO REVEAL IS SO DEFINED AS TO LEAVE NO FAIR ROOM FOR DOUBT THAT HE IS
NOT ASKED TO DISCLOSE WHAT HE HAS A RIGHT TO WITHHOLD. 

NO ONE COULD BELIEVE MORE STRONGLY THAN I DO THAT EVERY RATIONAL
INDULGENCE SHOULD BE MADE IN FAVOR OF THE CONSTITUTIONALITY OF AN
ENACTMENT BY CONGRESS.  I DEEM IT MY DUTY TO GO TO THE FARTHEST
POSSIBLE LIMITS IN SO CONSTRUING LEGISLATION AS TO AVOID A FINDING THAT
CONGRESS HAS EXCEEDED THE LIMITS OF ITS POWERS.  SEE, E.G., UNITED
STATES V. LOVETT, 328 U.S. 303, 318, 329; SHAPIRO V. UNITED STATES, 335
U.S. 1, 36; UNITED STATES V. C.I.O., 335 U.S. 106, 124, 129. 

IF I POSSIBLY COULD, TO AVOID QUESTIONS OF UNCONSTITUTIONALITY I
WOULD CONSTRUE THE REQUIREMENTS OF SEC. 9(H) TO BE RESTRICTED TO
DISAVOWAL OF ACTUAL MEMBERSHIP IN THE COMMUNIST PARTY, OR IN AN
ORGANIZATION THAT IS IN FACT A CONTROLLED COVER FOR THAT PARTY OR OF
ACTIVE BELIEF, AS A MATTER OF PRESENT POLICY, IN THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE.  BUT WHAT CONGRESS HAS
WRITTEN DOES NOT PERMIT SUCH A GLOSS NOR DELETION OF WHAT IT HAS
WRITTEN.  SEE YU CONG ENG V. TRINIDAD, 271 U.S. 500.  I CANNOT DEEM IT
WITHIN THE RIGHTFUL AUTHORITY OF CONGRESS TO PROBE INTO OPINIONS THAT
INVOLVE ONLY AN ARGUMENTATIVE DEMONSTRATION OF SOME COINCIDENTAL
PARALLELISM OF BELIEF WITH SOME OF THE BELIEFS OF THOSE WHO DIRECT THE
POLICY OF THE COMMUNIST PARTY, THOUGH WITHOUT ANY ALLEGIANCE TO IT.  TO
REQUIRE OATHS AS TO MATTERS THAT OPEN UP SUCH POSSIBILITIES INVADES THE
INNER LIFE OF MEN WHOSE COMPASSIONATE THOUGHT OR DOCTRINAIRE HOPES MAY
BE AS FAR REMOVED FROM ANY DANGEROUS KINSHIP WITH THE COMMUNIST CREED
AS WERE THOSE OF THE FOUNDERS OF THE PRESENT ORTHODOX POLITICAL PARTIES
IN THIS COUNTRY. 

THE OFFENSIVE PROVISIONS OF SEC. 9(H) LEAVE UNAFFECTED, HOWEVER, THE
VALID PORTIONS OF THE SECTION.  IN SEC. 16, CONGRESS HAS MADE EXPRESS
PROVISION FOR SUCH SEVERANCE.  SINCE THE JUDGMENTS BELOW WERE BASED IN
PART ON WHAT I DEEM UNCONSTITUTIONAL REQUIREMENTS, I CANNOT AFFIRM BUT
WOULD REMAND TO GIVE OPPORTUNITY TO OBEY MERELY THE VALID PORTIONS OF
SEC. 9(H). 

FN1  SECTION 9(H) REQUIRES EACH OFFICER OF A UNION SEEKING TO INVOKE
THE MACHINERY OF THE LABOR MANAGEMENT RELATIONS ACT TO SUBMIT AN
AFFIDAVIT "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."  61 STAT. 146, 29 U.S.C. (SUPP. III) SEC.
159(H).  THE PROVISIONS OF WHAT IS NOW 18 U.S.C. SEC. 1001, FORMERLY
SEC. 35(A) OF THE CRIMINAL CODE, ARE MADE APPLICABLE IN RESPECT TO SUCH
AFFIDAVITS. 

FN2  AS TO THE DUBIOUS SCOPE OF THE TERM "AFFILIATED" IN THE STATUTE,
SEE BRIDGES V. WIXON, 326 U.S. 135. 

MR. JUSTICE JACKSON, CONCURRING AND DISSENTING, EACH IN PART. 

IF THE STATUTE BEFORE US REQUIRED LABOR UNION OFFICERS TO FORSWEAR
MEMBERSHIP IN THE REPUBLICAN PARTY, THE DEMOCRATIC PARTY OR THE
SOCIALIST PARTY, I SUPPOSE ALL AGREE THAT IT WOULD BE
UNCONSTITUTIONAL.  BUT WHY, IF IT IS VALID AS TO THE COMMUNIST PARTY? 

THE ANSWER, FOR ME, IS IN THE DECISIVE DIFFERENCES BETWEEN THE
COMMUNIST PARTY AND EVERY OTHER PARTY OF ANY IMPORTANCE IN THE LONG
EXPERIENCE OF THE UNITED STATES WITH PARTY GOVERNMENT.  IN ORDER THAT
TODAY'S DECISION MAY NOT BE USEFUL AS A PRECEDENT FOR SUPPRESSION OF
ANY POLITICAL OPPOSITION COMPATIBLE WITH OUR FREE INSTITUTIONS, I LIMIT
CONCURRENCE TO GROUNDS AND DISTINCTIONS EXPLICITLY SET FORTH HEREIN,
WITHOUT WHICH I SHOULD REGARD THIS ACT AS UNCONSTITUTIONAL. 

TO STATE CONTROLLING CRITERIA DEFINITIVELY IS BOTH IMPORTANT AND
DIFFICULT, BECAUSE THOSE COMMUNIST PARTY ACTIVITIES VISIBLE TO THE
PUBLIC CLOSELY RESEMBLE THOSE OF ANY OTHER PARTY.  PARTIES, WHETHER IN
OFFICE OR OUT, ARE OFTEN IRRESPONSIBLE IN THEIR USE AND ABUSE OF
FREEDOMS OF SPEECH AND PRESS.  THEY ALL MAKE SCAPEGOATS OF UNPOPULAR
PERSONS OR CLASSES AND MAKE PROMISES OF DUBIOUS SINCERITY OR
FEASIBILITY IN ORDER TO WIN VOTES.  ALL PARTIES, WHEN IN OPPOSITION,
STRIVE TO DISCREDIT AND EMBARRASS THE GOVERNMENT OF THE DAY BY
SPREADING EXAGGERATIONS AND UNTRUTHS AND BY INCITING PREJUDICED OR
UNREASONING DISCONTENT, NOT EVEN HESITATING TO INJURE THE NATION'S
PRESTIGE AMONG THE FAMILY OF NATIONS.  THE COMMUNIST PARTY, AT LEAST
OUTWARDLY, ONLY EXAGGERATES THESE WELL-WORN POLITICAL TECHNIQUES AND
MANY PERSONS ARE THUS LED TO THINK OF IT AS JUST ANOTHER MORE RADICAL
POLITICAL PARTY.  IF IT WERE NOTHING BUT THAT, I THINK THIS LEGISLATION
WOULD BE UNCONSTITUTIONAL.  THERE ARE, HOWEVER, CONTRADICTIONS BETWEEN
WHAT MEETS THE EYE AND WHAT IS COVERTLY DONE, WHICH, IN MY VIEW OF THE
ISSUES, PROVIDE A RATIONAL BASIS UPON WHICH CONGRESS REASONABLY COULD
HAVE CONCLUDED  FN1  THAT THE COMMUNIST PARTY IS SOMETHING DIFFERENT IN
FACT FROM ANY OTHER SUBSTANTIAL PARTY WE HAVE KNOWN, AND HENCE MAY
CONSTITUTIONALLY BE TREATED AS SOMETHING DIFFERENT IN LAW. 

                                  I. 

FROM INFORMATION BEFORE ITS SEVERAL COMMITTEES AND FROM FACTS OF
GENERAL KNOWLEDGE, CONGRESS COULD RATIONALLY CONCLUDE THAT, BEHIND ITS
POLITICAL PARTY FACADE, THE COMMUNIST PARTY IS A CONSPIRATORIAL AND
REVOLUTIONARY JUNTA, ORGANIZED TO REACH ENDS AND TO USE METHODS WHICH
ARE INCOMPATIBLE WITH OUR CONSTITUTIONAL SYSTEM.  A ROUGH AND
COMPRESSED GROUPING OF THIS DATA  FN2 WOULD PERMIT CONGRESS TO DRAW
THESE IMPORTANT CONCLUSIONS AS TO ITS DISTINGUISHING CHARACTERISTICS. 

1.  THE GOAL OF THE COMMUNIST PARTY IS TO SEIZE POWERS OF GOVERNMENT
BY AND FOR A MINORITY RATHER THAN TO ACQUIRE POWER THROUGH THE VOTE OF
A FREE ELECTORATE.  IT SEEKS NOT MERELY A CHANGE OF ADMINISTRATION, OR
OF CONGRESS, OR REFORM LEGISLATION WITHIN THE CONSTITUTIONAL
FRAMEWORK.  ITS PROGRAM IS NOT MERELY TO SOCIALIZE PROPERTY MORE
RAPIDLY AND EXTENSIVELY THAN THE OTHER PARTIES ARE DOING.  WHILE THE
DIFFERENCE BETWEEN OTHER PARTIES IN THESE MATTERS IS LARGELY AS TO
PACE, THE COMMUNIST PARTY'S DIFFERENCE IS ONE OF DIRECTION. 

THE COMMUNIST PROGRAM ONLY BEGINS WITH SEIZURE OF GOVERNMENT, WHICH
THEN BECOMES A MEANS TO IMPOSE UPON SOCIETY AN ORGANIZATION ON
PRINCIPLES FUNDAMENTALLY OPPOSED TO THOSE PRESUPPOSED BY OUR
CONSTITUTION.  IT PURPOSES FORCIBLY TO RECAST OUR WHOLE SOCIAL AND
POLITICAL STRUCTURE AFTER THE MUSCOVITE MODEL OF POLICE-STATE
DICTATORSHIP.  IT REJECTS THE ENTIRE RELIGIOUS AND CULTURAL HERITAGE OF
WESTERN CIVILIZATION, AS WELL AS THE AMERICAN ECONOMIC AND POLITICAL
SYSTEMS.  THIS COMMUNIST MOVEMENT IS A BELATED COUNTER-REVOLUTION TO
THE AMERICAN REVOLUTION, DESIGNED TO UNDO THE DECLARATION OF
INDEPENDENCE, THE CONSTITUTION, AND OUR BILL OF RIGHTS, AND OVERTURN
OUR SYSTEM OF FREE, REPRESENTATIVE SELF-GOVERNMENT. 

GOALS SO EXTREME AND OFFENSIVE TO AMERICAN TRADITION AND ASPIRATION
OBVIOUSLY COULD NOT BE ATTAINED OR APPROACHED THROUGH ORDER OR WITH
TRANQUILITY.  IF, BY THEIR BETTER ORGANIZATION AND DISCIPLINE, THEY
WERE SUCCESSFUL, MORE CANDID COMMUNISTS ADMIT THAT IT WOULD BE TO AN
ACCOMPANIMENT OF VIOLENCE, BUT AT THE SAME TIME THEY DISCLAIM
RESPONSIBILITY BY BLAMING THE VIOLENCE UPON THOSE WHO ENGAGE IN
RESISTANCE OR REPRISAL.  IT MATTERS LITTLE BY WHOM THE FIRST BLOW WOULD
BE STRUCK; NO ONE CAN DOUBT THAT AN ERA OF VIOLENCE AND OPPRESSION,
CONFISCATIONS AND LIQUIDATIONS WOULD BE CONCURRENT WITH A REGIME OF
COMMUNISM. 

SUCH GOALS SET UP A CLEAVAGE AMONG US TOO FUNDAMENTAL TO BE COMPOSED
BY DEMOCRATIC PROCESSES.  OUR CONSTITUTIONAL SCHEME OF ELECTIONS WILL
NOT SETTLE ISSUES BETWEEN LARGE GROUPS WHEN THE PRICE OF LOSING IS TO
SUFFER EXTINCTION.  WHEN DISSENSIONS CUT TOO DEEPLY, MEN WILL FIGHT,
EVEN HOPELESSLY, BEFORE THEY WILL SUBMIT.  FN3  AND THIS IS THE KIND OF
STRUGGLE PROJECTED BY THE COMMUNIST PARTY AND INHERENT IN ITS PROGRAM. 

2.  THE COMMUNIST PARTY ALONE AMONG AMERICAN PARTIES PAST OR PRESENT
IS DOMINATED AND CONTROLLED BY A FOREIGN GOVERNMENT.  IT IS A SATRAP
PARTY WHICH, TO THE THREAT OF CIVIL DISORDER, ADDS THE THREAT OF
BETRAYAL INTO ALIEN HANDS. 

THE CHAIN OF COMMAND FROM THE KREMLIN TO THE AMERICAN PARTY IS
STOUTLY DENIED AND USUALLY INVISIBLE, BUT IT WAS UNMISTAKABLY DISCLOSED
BY THE AMERICAN COMMUNIST PARTY SOMERSAULTING IN SYNCHRONISM WITH
SHIFTS IN THE KREMLIN'S FOREIGN POLICY.  BEFORE MUNICH, SOVIET POLICY
WAS ANTI-GERMAN - "ANTI-FASCIST" - AND THE COMMUNISTS IN THIS COUNTRY
WERE LIKEWISE.  HOWEVER, WHEN STALIN CONCLUDED A NONAGGRESSION PACT
WITH HITLER AND NAZI GERMANY AND THE SOVIET UNION BECAME PARTNERS IN
THE WAR, THE COMMUNISTS HERE DID EVERYTHING WITHIN THEIR POWER TO
RETARD AND EMBARRASS THE UNITED STATES' POLICY OF RENDERING AID SHORT
OF WAR TO VICTIMS OF AGGRESSION BY THAT EVIL PARTNERSHIP.  WHEN THOSE
PARTNERS AGAIN FELL OUT AND RUSSIAN POLICY ONCE MORE BECAME ANTI
GERMAN, THE COMMUNISTS IN THIS COUNTRY MADE AN ABRUPT AND FIERCE
REVERSAL AND WERE UNCONSCIONABLE IN THEIR DEMANDS THAT AMERICAN
SOLDIERS, WHOSE EQUIPMENT THEY HAD DELAYED AND SABOTAGED, BE SACRIFICED
IN A PREMATURE SECOND FRONT TO SPARE RUSSIA.  AMERICAN COMMUNISTS, LIKE
COMMUNISTS ELSEWHERE IN THE WORLD, PLACED MOSCOW'S DEMAND ABOVE EVERY
PATRIOTIC INTEREST. 

BY LINEAGE AND COMPOSITION THE COMMUNIST PARTY WILL REMAIN PECULIARLY
SUSCEPTIBLE TO THIS ALIEN CONTROL.  THE ENTIRE APPARATUS OF COMMUNISM -
ITS GRIEVANCES, PROGRAM, PROPAGANDA AND VOCABULARY - WERE EVOLVED FOR
EASTERN AND CENTRAL EUROPE, WHOSE SOCIAL AND POLITICAL CONDITIONS BEAR
NO SEMBLANCE TO OUR OWN.  HOWEVER GIFTED MAY HAVE BEEN THE COMMUNIST
PARTY'S FOUNDERS AND LEADERS - MARX, ENGELS, LENIN AND STALIN - NOT ONE
OF THEM EVER LIVED IN AMERICA, EXPERIENCED OUR CONDITIONS, OR IMBIBED
THE SPIRIT OF OUR INSTITUTIONS.  THE COMMUNIST PARTY IS NOT NATIVE TO
THIS COUNTRY AND ITS BEGINNINGS HERE WERE NOT AN EFFORT OF AMERICANS TO
ANSWER AMERICAN PROBLEMS.  NOR IS IT THE RESPONSE TO A QUEST BY
AMERICAN POLITICAL LEADERS FOR LESSONS FROM EUROPEAN EXPERIENCES.  AS A
CONSEQUENCE, THE LEADERS OF THE AMERICAN COMMUNIST PARTY HAVE BEEN
OTHERWISE INSIGNIFICANT PERSONALITIES, WITHOUT PERSONAL POLITICAL
FOLLOWINGS OR APTITUDES FOR OUR POLITICAL METHODS, ADAPTED BY TRAINING
ONLY TO BORING THEIR WAY INTO THE LABOR MOVEMENT, MINORITY GROUPS AND
COTERIES OF NAIVE AND CONFUSED LIBERALS, WHOSE ORGANIZATIONS THEY HAVE
CAPTURED AND DISCREDITED AND AMONG WHOM THEY LIE IN WAIT FOR FURTHER
ORDERS. 

THE OLD WORLD MAY BE RICH IN LESSONS WHICH OUR STATESMEN COULD
CONSULT WITH ADVANTAGE.  BUT IT IS ONE THING TO LEARN FROM OR SUPPORT A
FOREIGN POWER BECAUSE THAT POLICY SERVES AMERICAN INTERESTS, AND
ANOTHER THING TO SUPPORT AMERICAN POLICIES BECAUSE THEY WILL SERVE
FOREIGN INTERESTS.  FN4  IN EACH COUNTRY WHERE THE COMMUNISTS HAVE
SEIZED CONTROL, THEY HAVE SO DENATIONALIZED ITS FOREIGN POLICY AS TO
MAKE IT A SATELLITE AND VASSAL OF THE SOVIET UNION AND ENFORCED A
DOMESTIC POLICY IN COMPLETE CONFORMITY WITH THE SOVIET PATTERN,
TOLERATING NO DEVIATION IN DEFERENCE TO ANY PEOPLE'S SEPARATE HISTORY,
TRADITION OR NATIONAL INTERESTS. 

3.  VIOLENT AND UNDEMOCRATIC MEANS ARE THE CALCULATED AND
INDISPENSABLE METHODS TO ATTAIN THE COMMUNIST PARTY'S GOAL.  IT WOULD
BE INCREDIBLE NAIVETE TO EXPECT THE AMERICAN BRANCH OF THIS MOVEMENT TO
FOREGO THE ONLY METHODS BY WHICH A COMMUNIST PARTY HAS ANYWHERE COME
INTO POWER.  IN NOT ONE OF THE COUNTRIES IT NOW DOMINATES WAS THE
COMMUNIST PARTY CHOSEN BY A FREE OR CONTESTIBLE ELECTION; IN NOT ONE
CAN IT BE EVICTED BY ANY ELECTION.  THE INTERNATIONAL POLICE STATE HAS
CREPT OVER EASTERN EUROPE BY DECEPTION, COERCION, COUP D'ETAT,
TERRORISM AND ASSASSINATION.  NOT ONLY HAS IT OVERPOWERED ITS CRITICS
AND OPPONENTS; IT HAS USUALLY LIQUIDATED THEM.  THE AMERICAN COMMUNIST
PARTY HAS COPIED THE ORGANIZATIONAL STRUCTURE AND ITS LEADERS HAVE BEEN
SCHOOLED IN THE SAME TECHNIQUE AND BY THE SAME TUTORS. 

THE AMERICAN COMMUNISTS HAVE IMPORTED THE TOTALITARIAN ORGANIZATION'S
DISCIPLINES AND TECHNIQUES, NOTWITHSTANDING THE FACT THAT THIS COUNTRY
OFFERS THEM AND OTHER DISCONTENTED ELEMENTS A WAY TO PEACEFUL
REVOLUTION BY BALLOT.  FN5  IF THEY CAN PERSUADE ENOUGH CITIZENS, THEY
MAY NOT ONLY NAME NEW OFFICIALS AND INAUGURATE NEW POLICIES, BUT, BY
AMENDMENT OF THE CONSTITUTION, THEY CAN ABOLISH THE BILL OF RIGHTS AND
SET UP AN ABSOLUTE GOVERNMENT BY LEGAL METHODS.  THEY ARE GIVEN
LIBERTIES OF SPEECH, PRESS AND ASSEMBLY TO ENABLE THEM TO PRESENT TO
THE PEOPLE THEIR PROPOSALS AND PROPAGANDA FOR PEACEFUL AND LAWFUL
CHANGES, HOWEVER EXTREME.  BUT INSTEAD OF RESTING THEIR CASE UPON
PERSUASION AND ANY APPEAL INHERENT IN THEIR IDEAS AND PRINCIPLES, THE
COMMUNIST PARTY ADOPTS THE TECHNIQUES OF A SECRET CABAL - FALSE NAMES,
FORGED PASSPORTS, CODE MESSAGES, CLANDESTINE MEETINGS.  TO THESE IT
ADDS OCCASIONAL TERRORISTIC AND THREATENING METHODS, SUCH AS PICKETING
COURTS AND JURIES, POLITICAL STRIKES AND SABOTAGE. 

THIS CABALISM AND TERRORISM IS UNDERSTANDABLE IN THE LIGHT OF WHAT
THEY WANT TO ACCOMPLISH AND WHAT THEY HAVE TO OVERCOME.  THE COMMUNIST
PROGRAM DOES NOT PRESENTLY, NOR IN FORESEEABLE FUTURE ELECTIONS,
COMMEND ITSELF TO ENOUGH AMERICAN VOTERS TO BE A SUBSTANTIAL POLITICAL
FORCE.  UNLESS THE COMMUNIST PARTY CAN OBTAIN SOME POWERFUL LEVERAGE ON
THE POPULATION, IT IS DOOMED TO REMAIN A NEGLIGIBLE FACTOR IN THE
UNITED STATES.  HENCE, CONSPIRACY, VIOLENCE, INTIMIDATION AND THE COUP
D'ETAT ARE ALL THAT KEEP HOPE ALIVE IN THE COMMUNIST BREAST. 

4.  THE COMMUNIST PARTY HAS SOUGHT TO GAIN THIS LEVERAGE AND HOLD ON
THE AMERICAN POPULATION BY ACQUIRING CONTROL OF THE LABOR MOVEMENT. 
ALL POLITICAL PARTIES HAVE WOOED LABOR AND ITS LEADERS.  BUT WHAT OTHER
PARTIES SEEK IS PRINCIPALLY THE VOTE OF LABOR.  THE COMMUNIST PARTY, ON
THE OTHER HAND, IS NOT PRIMARILY INTERESTED IN LABOR'S VOTE, FOR IT
DOES NOT EXPECT TO WIN BY VOTES.  IT STRIVES FOR CONTROL OF LABOR'S
COERCIVE POWER - THE STRIKE, THE SIT-DOWN, THE SLOW-DOWN, SABOTAGE, OR
OTHER MEANS OF PRODUCING INDUSTRIAL PARALYSIS.  CONGRESS HAS LEGALIZED
THE STRIKE AS LABOR'S WEAPON FOR IMPROVING ITS OWN LOT.  BUT WHERE
COMMUNISTS HAVE LABOR CONTROL, THE STRIKE CAN BE AND SOMETIMES IS
PERVERTED TO A PARTY WEAPON.  IN 1940 AND 1941, UNDISCLOSED COMMUNISTS
USED THEIR LABOR OFFICES TO SABOTAGE THIS NATION'S EFFORT TO REBUILD
ITS OWN DEFENSES.  DISGUISED AS LEADERS OF FREE AMERICAN LABOR, THEY
WERE IN TRUTH SECRET PARTISANS OF STALIN, WHO, IN PARTNERSHIP WITH
HITLER, WAS OVERRUNNING EUROPE, SENDING HONEST LABOR LEADERS TO
CONCENTRATION CAMPS, AND REDUCING LABOR TO SLAVERY IN EVERY LAND EITHER
OF THEM WAS ABLE TO OCCUPY.  NO OTHER IMPORTANT POLITICAL PARTY IN OUR
HISTORY HAS ATTEMPTED TO USE THE STRIKE TO NULLIFY A FOREIGN OR A
DOMESTIC POLICY ADOPTED BY THOSE CHOSEN UNDER OUR REPRESENTATIVE
SYSTEM. 

THIS LABOR LEVERAGE, HOWEVER, USUALLY CAN BE OBTAINED ONLY BY
CONCEALING THE COMMUNIST TIE FROM THE UNION MEMBERSHIP.  WHATEVER
GRIEVANCES AMERICAN WORKMEN MAY HAVE WITH AMERICAN EMPLOYERS, THEY ARE
TOO INTELLIGENT AND INFORMED TO SEEK A REMEDY THROUGH A COMMUNIST PARTY
WHICH DEFENDS SOVIET CONSCRIPTION OF LABOR, FORCED LABOR CAMPS AND THE
POLICE STATE.  HENCE THE RESORT TO CONCEALMENT, AND HENCE THE
RESENTMENT OF LAWS TO COMPEL DISCLOSURE OF COMMUNIST PARTY TIES.  THE
MEMBERSHIP IS NOT LIKELY TO ENTRUST ITS BARGAINING POWER, ITS RECORDS,
AND ITS TREASURY TO SUCH HANDS.  WHEN IT DOES, THE UNION FINDS ITSELF A
MORE OR LESS HELPLESS CAPTIVE OF THE COMMUNIST PARTY.  ITS OFFICERS
CEASE TO BE INTERESTED IN CORRECTING GRIEVANCES BUT SEEK TO WORSEN AND
EXPLOIT THEM; THEY CARE LESS FOR WINNING STRIKES THAN THAT THEY BE
LONG, BITTER AND DISRUPTIVE.  THEY ALWAYS FOLLOW THE COMMUNIST PARTY
LINE, WITHOUT EVEN KNOWING ITS SOURCE OR ITS OBJECTIVES.  THE MOST
PROMISING COURSE OF THE COMMUNIST PARTY HAS BEEN THE UNDERCOVER CAPTURE
OF THE COERCIVE POWER OF STRATEGIC LABOR UNIONS AS A LEVERAGE TO
MAGNIFY ITS POWER OVER THE AMERICAN PEOPLE. 

5.  EVERY MEMBER OF THE COMMUNIST PARTY IS AN AGENT TO EXECUTE THE
COMMUNIST PROGRAM.  WHAT CONSTITUTES A PARTY?  MAJOR POLITICAL PARTIES
IN THE UNITED STATES HAVE NEVER BEEN CLOSELY KNIT OR SECRET
ORGANIZATIONS.  ANYONE WHO USUALLY VOTES THE PARTY TICKET IS RECKONED A
MEMBER, ALTHOUGH HE HAS NOT APPLIED FOR OR BEEN ADMITTED TO MEMBERSHIP,
PAYS NO DUES, HAS TAKEN NO PLEDGE, AND IS FREE TO VOTE, SPEAK AND ACT
AS HE WILLS.  FOLLOWERS ARE HELD TOGETHER BY RATHER CASUAL ACCEPTANCE
OF GENERAL PRINCIPLES, THE INFLUENCE OF LEADERS, AND SOMETIMES BY THE
COHESIVE POWER OF PATRONAGE.  MEMBERSHIP IN THE PARTY CARRIES WITH IT
LITTLE ASSURANCE THAT THE MEMBER UNDERSTANDS OR BELIEVES IN ITS
PRINCIPLES AND NONE AT ALL THAT HE WILL TAKE ORDERS FROM ITS LEADERS. 
ONE MAY QUARREL WITH THE PARTY AND BOLT ITS CANDIDATES AND RETURN AGAIN
AS MUCH A MEMBER AS THOSE WHO WERE REGULAR.  AND IT IS OFTEN A SOURCE
OF GRIEF TO THOSE WHO HAVE LABORED LONG IN THE VINEYARD THAT LATE
ARRIVALS ARE TAKEN INTO THE PARTY COUNCILS FROM OTHER PARTIES WITHOUT
SCRUTINY.  OF COURSE, WHEN PARTY ORGANIZATION IS OF THIS CHARACTER,
THERE IS LITTLE GROUND FOR INFERENCE THAT ALL MEMBERS ARE COMMITTED TO
PARTY PLANS OR THAT THEY ARE AGENTS FOR THEIR EXECUTION. 

MEMBERSHIP IN THE COMMUNIST PARTY IS TOTALLY DIFFERENT.  THE PARTY IS
A SECRET CONCLAVE.  MEMBERS ARE ADMITTED ONLY UPON ACCEPTANCE AS
RELIABLE AND AFTER INDOCTRINATION IN ITS POLICIES, TO WHICH THE MEMBER
IS FULLY COMMITTED.  THEY ARE PROVIDED WITH CARDS OR CREDENTIALS,
USUALLY ISSUED UNDER FALSE NAMES SO THAT THE IDENTIFICATION CAN ONLY BE
MADE BY OFFICERS OF THE PARTY WHO HOLD THE CODE.  MOREOVER, EACH
PLEDGES UNCONDITIONAL OBEDIENCE TO PARTY AUTHORITY.  ADHERENTS ARE
KNOWN BY SECRET OR CODE NAMES.  THEY CONSTITUTE "CELLS" IN THE FACTORY,
THE OFFICE, THE POLITICAL SOCIETY, OR THE LABOR UNION.  FOR ANY
DEVIATION FROM THE PARTY LINE THEY ARE PURGED AND EXCLUDED. 

INFERENCES FROM MEMBERSHIP IN SUCH AN ORGANIZATION ARE JUSTIFIABLY
DIFFERENT FROM THOSE TO BE DRAWN FROM MEMBERSHIP IN THE USUAL TYPE OF
POLITICAL PARTY.  INDIVIDUALS WHO ASSUME SUCH OBLIGATIONS ARE
CHARGEABLE, ON ORDINARY CONSPIRACY PRINCIPLES, WITH RESPONSIBILITY FOR
AND PARTICIPATION IN ALL THAT MAKES UP THE PARTY'S PROGRAM.  THE
CONSPIRACY PRINCIPLE HAS TRADITIONALLY BEEN EMPLOYED TO PROTECT SOCIETY
AGAINST ALL "GANGING UP" OR CONCERTED ACTION IN VIOLATION OF ITS LAWS. 
NO TERM PASSES THAT THIS COURT DOES NOT SUSTAIN CONVICTIONS BASED ON
THAT DOCTRINE FOR VIOLATIONS OF THE ANTITRUST LAWS OR OTHER STATUTES. 
FN6  HOWEVER, THERE HAS RECENTLY ENTERED THE DIALECTIC OF POLITICS A
CLICHE USED TO CONDEMN APPLICATION OF THE CONSPIRACY PRINCIPLE TO
COMMUNISTS.  "GUILT BY ASSOCIATION" IS AN EPITHET FREQUENTLY USED AND
LITTLE EXPLAINED, EXCEPT THAT IT IS GENERALLY ACCOMPANIED BY ANOTHER
SLOGAN, "GUILT IS PERSONAL."  OF COURSE IT IS; BUT PERSONAL GUILT MAY
BE INCURRED BY JOINING A CONSPIRACY.  THAT ACT OF ASSOCIATION MAKES ONE
RESPONSIBLE FOR THE ACTS OF OTHERS COMMITTED IN PURSUANCE OF THE
ASSOCIATION.  IT IS WHOLLY A QUESTION OF THE SUFFICIENCY OF EVIDENCE OF
ASSOCIATION TO IMPLY CONSPIRACY.  THERE IS CERTAINLY SUFFICIENT
EVIDENCE THAT ALL MEMBERS OWE ALLEGIANCE TO EVERY DETAIL OF THE
COMMUNIST PARTY PROGRAM AND HAVE ASSUMED A DUTY ACTIVELY TO HELP
EXECUTE IT, SO THAT CONGRESS COULD, ON FAMILIAR CONSPIRACY PRINCIPLES,
CHARGE EACH MEMBER WITH RESPONSIBILITY FOR THE GOALS AND MEANS OF THE
PARTY. 

SUCH THEN IS THE BACKGROUND WHICH CONGRESS COULD REASONABLY FIND AS A
BASIS FOR EXERTING ITS CONSTITUTIONAL POWERS, AND WHICH THE JUDICIARY
CANNOT DISREGARD IN TESTING THEM.  ON THIS HYPOTHESIS WE MAY REVERT TO
CONSIDERATION OF THE CONTENTION OF UNCONSTITUTIONALITY OF THIS OATH
INSOFAR AS IT REQUIRES DISCLOSURE OF COMMUNIST PARTY MEMBERSHIP OR
AFFILIATION. 

                                 II. 

I CANNOT BELIEVE THAT CONGRESS HAS LESS POWER TO PROTECT A LABOR
UNION FROM COMMUNIST PARTY DOMINATION THAN IT HAS FROM EMPLOYER
DOMINATION.  THIS COURT HAS UNCOMPROMISINGLY UPHELD POWER OF CONGRESS
TO DISESTABLISH LABOR UNIONS WHERE THEY ARE COMPANY-DOMINATED AND TO
ERADICATE EMPLOYER INFLUENCE, EVEN WHEN EXERTED ONLY THROUGH SPOKEN OR
WRITTEN WORDS WHICH ANY PERSON NOT THE EMPLOYER WOULD BE FREE TO
UTTER.  FN7 

CONGRESS HAS CONFERRED UPON LABOR UNIONS IMPORTANT RIGHTS AND POWERS
IN MATTERS THAT AFFECT INDUSTRY, TRANSPORT, COMMUNICATIONS, AND
COMMERCE.  AND CONGRESS HAS NOT NOW DENIED ANY UNION FULL SELF
GOVERNMENT NOR PROHIBITED ANY UNION FROM CHOOSING COMMUNIST OFFICERS. 
IT SEEKS TO PROTECT THE UNION FROM DOING SO UNKNOWINGLY.  AND IF
MEMBERS DELIBERATELY CHOOSE TO PUT THE UNION IN THE HANDS OF COMMUNIST
OFFICERS, CONGRESS WITHDRAWS THE PRIVILEGES IT HAS CONFERRED ON THE
ASSUMPTION THAT THEY WILL BE DEVOTED TO THE WELFARE OF THEIR MEMBERS. 
IT WOULD BE STRANGE INDEED IF IT WERE CONSTITUTIONALLY POWERLESS TO
PROTECT THESE DELEGATED FUNCTIONS FROM ABUSE AND MISAPPROPRIATION TO
THE SERVICE OF THE COMMUNIST PARTY AND THE SOVIET UNION.  OUR
CONSTITUTION IS NOT A COVENANT OF NONRESISTANCE TOWARD ORGANIZED
EFFORTS AT DISRUPTION AND BETRAYAL, EITHER OF LABOR OR OF THE COUNTRY. 

COUNSEL STRESS THAT THIS IS A CIVIL-RIGHTS OR A FREE-SPEECH OR A FREE
PRESS CASE.  BUT IT IS IMPORTANT TO NOTE WHAT THIS ACT DOES NOT DO.
THE ACT DOES NOT SUPPRESS OR OUTLAW THE COMMUNIST PARTY, NOR PROHIBIT
IT OR ITS MEMBERS FROM ENGAGING IN ANY ABOVEBOARD ACTIVITY NORMAL IN
PARTY STRUGGLES UNDER OUR POLITICAL SYSTEM.  IT MAY CONTINUE TO
NOMINATE CANDIDATES, HOLD MEETINGS, CONDUCT CAMPAIGNS AND ISSUE
PROPAGANDA, JUST AS OTHER PARTIES MAY.  NO INDIVIDUAL IS FORBIDDEN TO
BE OR TO BECOME A PHILOSOPHICAL COMMUNIST OR A FULL-FLEDGED MEMBER OF
THE PARTY.  NO ONE IS PENALIZED FOR WRITING OR SPEAKING IN FAVOR OF THE
PARTY OR ITS PHILOSOPHY.  ALSO, THE ACT DOES NOT REQUIRE OR FORBID
ANYTHING WHATEVER TO ANY PERSON MERELY BECAUSE HE IS A MEMBER OF, OR IS
AFFILIATED WITH, THE COMMUNIST PARTY.  IT APPLIES ONLY TO ONE WHO
BECOMES AN OFFICER OF A LABOR UNION. 

I AM AWARE THAT THE OATH IS RESENTED BY MANY LABOR LEADERS OF
UNQUESTIONED LOYALTY AND ABOVE SUSPICION OF COMMUNIST CONNECTIONS,
INDEED BY SOME WHO HAVE THEMSELVES TAKEN BOLD AND DIFFICULT STEPS TO
RID THE LABOR MOVEMENT OF COMMUNISTS.  I SUPPOSE NO ONE LIKES TO BE
COMPELLED TO EXONERATE HIMSELF FROM CONNECTIONS HE HAS NEVER ACQUIRED. 
I HAVE SOMETIMES WONDERED WHY I MUST FILE PAPERS SHOWING I DID NOT
STEAL MY CAR BEFORE I CAN GET A LICENSE FOR IT.  BUT EXPERIENCE SHOWS
THERE ARE THIEVES AMONG AUTOMOBILE DRIVERS, AND THAT THERE ARE
COMMUNISTS AMONG LABOR LEADERS.  THE PUBLIC WELFARE, IN IDENTIFYING
BOTH, OUTWEIGHS ANY AFFRONT TO INDIVIDUAL DIGNITY. 

IN WEIGHING CLAIMS THAT ANY PARTICULAR ACTIVITY IS ABOVE THE REACH OF
LAW, WE HAVE A HIGH RESPONSIBILITY TO DO SO IN THE LIGHT OF PRESENT-DAY
ACTUALITIES, NOT NOSTALGIC IDEALIZATIONS VALID FOR A SIMPLER AGE.  OUR
OWN WORLD, ORGANIZED FOR LIBERTY, HAS BEEN FORCED INTO DEADLY
COMPETITION WITH ANOTHER WORLD, ORGANIZED FOR POWER.  WE ARE FACED WITH
A LAWLESS AND RUTHLESS EFFORT TO INFILTRATE AND DISINTEGRATE OUR
SOCIETY.  IN CASES INVOLVING EFFORTS OF CONGRESS TO DEAL WITH THIS
STRUGGLE WE ARE CLEARLY CALLED UPON TO APPLY THE LONG-STANDING RULE
THAT AN APPOINTIVE JUDICIARY SHOULD STRIKE DOWN NO ACT PRODUCED BY THE
DEMOCRATIC PROCESSES OF OUR REPRESENTATIVE SYSTEM UNLESS
UNCONSTITUTIONALITY IS CLEAR AND CERTAIN.    I CONCLUDE THAT WE CANNOT
DENY CONGRESS POWER TO TAKE THESE MEASURES UNDER THE COMMERCE CLAUSE TO
REQUIRE LABOR UNION OFFICERS TO DISCLOSE THEIR MEMBERSHIP IN OR
AFFILIATION WITH THE COMMUNIST PARTY. 

                                 III. 

CONGRESS HAS, HOWEVER, REQUIRED AN ADDITIONAL DISCLAIMER, WHICH IN MY
VIEW DOES ENCOUNTER SERIOUS CONSTITUTIONAL OBJECTIONS.  A UNION OFFICER
MUST ALSO SWEAR THAT "HE DOES NOT BELIEVE IN ...  THE OVERTHROW OF THE
UNITED STATES GOVERNMENT BY FORCE OR BY ANY ILLEGAL OR UNCONSTITUTIONAL
METHODS."  FN8 

IF CONGRESS HAS POWER TO CONDITION ANY RIGHT OR PRIVILEGE OF AN
AMERICAN CITIZEN  FN9  UPON DISCLOSURE AND DISAVOWAL OF BELIEF ON ANY
SUBJECT, IT IS OBVIOUSLY THIS ONE.  BUT THE SERIOUS ISSUE IS WHETHER
CONGRESS HAS POWER TO PROSCRIBE ANY OPINION OR BELIEF WHICH HAS NOT
MANIFESTED ITSELF IN ANY OVERT ACT.  WHILE THE FOREPART OF THE OATH
REQUIRES DISCLOSURE AND DISAVOWAL OF RELATIONSHIPS WHICH DEPEND ON
OVERT ACTS OF MEMBERSHIP OR AFFILIATION, THE AFTERPART DEMANDS
REVELATION AND DENIAL OF MERE BELIEFS OR OPINIONS, EVEN THOUGH THEY MAY
NEVER HAVE MATURED INTO ANY ACT WHATEVER OR EVEN BEEN GIVEN UTTERANCE. 
IN FACT, THE OATH REQUIRES ONE TO FORM AND EXPRESS A CONVICTION ON AN
ABSTRACT PROPOSITION WHICH MANY GOOD CITIZENS, IF THEY HAVE THOUGHT OF
IT AT ALL, HAVE CONSIDERED TOO ACADEMIC AND REMOTE TO BOTHER ABOUT. 

THAT THIS DIFFERENCE IS DECISIVE ON THE QUESTION OF POWER BECOMES
UNMISTAKABLE WHEN WE CONSIDER MEASURES OF ENFORCEMENT.  THE ONLY
SANCTION PRESCRIBED, AND PROBABLY THE ONLY ONE POSSIBLE IN DEALING WITH
A FALSE AFFIDAVIT, IS PUNISHMENT FOR PERJURY.  IF ONE IS ACCUSED OF
FALSELY STATING THAT HE WAS NOT A MEMBER OF, OR AFFILIATED WITH, THE
COMMUNIST PARTY, HIS CONVICTION WOULD DEPEND UPON PROOF OF VISIBLE AND
KNOWABLE OVERT ACTS OR COURSES OF CONDUCT SUFFICIENT TO ESTABLISH THAT
RELATIONSHIP.  BUT IF ONE IS ACCUSED OF FALSELY SWEARING THAT HE DID
NOT BELIEVE SOMETHING THAT HE REALLY DID BELIEVE, THE TRIAL MUST
REVOLVE AROUND THE CONJECTURE AS TO WHETHER HE CANDIDLY EXPOSED HIS
STATE OF MIND. 

THE LAW SOMETIMES DOES INQUIRE AS TO MENTAL STATE, BUT ONLY SO FAR AS
I RECALL WHEN IT IS INCIDENTAL TO, AND DETERMINES THE QUALITY OF, SOME
OVERT ACT IN QUESTION.  FROM ITS CIRCUMSTANCES, COURTS SOMETIMES MUST
DECIDE WHETHER AN ACT WAS COMMITTED INTENTIONALLY OR WHETHER ITS
RESULTS WERE INTENDED, OR WHETHER THE ACTION TAKEN WAS IN MALICE, OR
AFTER DELIBERATION, OR WITH KNOWLEDGE OF CERTAIN FACTS.  BUT IN SUCH
CASES THE LAW PRIES INTO THE MIND ONLY TO DETERMINE THE NATURE AND
CULPABILITY OF AN ACT, AS A MITIGATING OR AGGRAVATING CIRCUMSTANCE, AND
I KNOW OF NO SITUATION IN WHICH A CITIZEN MAY INCUR CIVIL OR CRIMINAL
LIABILITY OR DISABILITY BECAUSE A COURT INFERS AN EVIL MENTAL STATE
WHERE NO ACT AT ALL HAS OCCURRED.  FN10  OUR TRIAL PROCESSES ARE CLUMSY
AND UNSATISFYING FOR INFERRING COGITATIONS WHICH ARE INCIDENTAL TO
ACTIONS, BUT THEY DO NOT EVEN PRETEND TO ASCERTAIN THE THOUGHT THAT HAS
HAD NO OUTWARD MANIFESTATION.  ATTEMPTS OF THE COURTS TO FATHOM MODERN
POLITICAL MEDITATIONS OF AN ACCUSED WOULD BE AS FUTILE AND MISCHIEVOUS
AS THE EFFORTS IN THE INFAMOUS HERESY TRIALS OF OLD TO FATHOM RELIGIOUS
BELIEFS. 

OUR CONSTITUTION EXPLICITLY PRECLUDES PUNISHMENT OF THE MALIGNANT
MENTAL STATE ALONE AS TREASON, MOST SERIOUS OF ALL POLITICAL CRIMES, OF
WHICH THE MENTAL STATE OF ADHERENCE TO THE ENEMY IS AN ESSENTIAL PART. 
IT REQUIRES A DULY WITNESSED OVERT ACT OF AID AND COMFORT TO THE
ENEMY.  CRAMER V. UNITED STATES, 325 U.S. 1.  IT IS TRUE THAT IN
ENGLAND OF OLDEN TIMES MEN WERE TRIED FOR TREASON FOR MENTAL
INDISCRETIONS SUCH AS IMAGINING THE DEATH OF THE KING.  BUT OUR
CONSTITUTION WAS INTENDED TO END SUCH PROSECUTIONS.  ONLY IN THE
DARKEST PERIODS OF HUMAN HISTORY HAS ANY WESTERN GOVERNMENT CONCERNED
ITSELF WITH MERE BELIEF, HOWEVER ECCENTRIC OR MISCHIEVOUS, WHEN IT HAS
NOT MATURED INTO OVERT ACTION; AND IF THAT PRACTICE SURVIVES ANYWHERE,
IT IS IN THE COMMUNIST COUNTRIES WHOSE PHILOSOPHIES WE LOATHE. 

HOW FAR WE MUST REVERT TOWARD THESE DISCREDITED SYSTEMS IF WE ARE TO
SUSTAIN THIS OATH IS MADE VIVID BY THE COURT'S REASONING THAT THE ACT
APPLIES ONLY TO THOSE "WHOSE BELIEFS STRONGLY INDICATE A WILL TO ENGAGE
IN POLITICAL STRIKES  ...  "  SINCE CONGRESS HAS NEVER OUTLAWED THE
POLITICAL STRIKE ITSELF, THE COURT MUST BE HOLDING THAT CONGRESS MAY
ROOT OUT MERE IDEAS WHICH, EVEN IF ACTED UPON, WOULD NOT RESULT IN
CRIME.  IT IS A STRANGE PARADOX IF ONE MAY BE FORBIDDEN TO HAVE AN IDEA
IN MIND THAT HE IS FREE TO PUT INTO EXECUTION.  BUT APART FROM THIS,
EFFORTS TO WEED ERRONEOUS BELIEFS FROM THE MINDS OF MEN HAVE ALWAYS
BEEN SUPPORTED BY THE ARGUMENT WHICH THE COURT INVOKES TODAY, THAT
BELIEFS ARE SPRINGS TO ACTION, THAT EVIL THOUGHTS TEND TO BECOME
FORBIDDEN DEEDS.  PROBABLY SO.  BUT IF POWER TO FORBID ACTS INCLUDES
POWER TO FORBID CONTEMPLATING THEM, THEN THE POWER OF GOVERNMENT OVER
BELIEFS IS AS UNLIMITED AS ITS POWER OVER CONDUCT AND THE WAY IS OPEN
TO FORCE DISCLOSURE OF ATTITUDES ON ALL MANNER OF SOCIAL, ECONOMIC,
MORAL AND POLITICAL ISSUES. 

THESE SUGGESTIONS MAY BE DISCOUNTED AS FANCIFUL AND FARFETCHED.  BUT
WE MUST NOT FORGET THAT IN OUR COUNTRY ARE EVANGELISTS AND ZEALOTS OF
MANY DIFFERENT POLITICAL, ECONOMIC AND RELIGIOUS PERSUASIONS WHOSE
FANATICAL CONVICTION IS THAT ALL THOUGHT IS DIVINELY CLASSIFIED INTO
TWO KINDS - THAT WHICH IS THEIR OWN AND THAT WHICH IS FALSE AND
DANGEROUS.  COMMUNISTS ARE NOT THE ONLY FACTION WHICH WOULD PUT US ALL
IN MENTAL STRAIT JACKETS.  INDEED ALL IDEOLOGICAL STRUGGLES, RELIGIOUS
OR POLITICAL, ARE PRIMARILY BATTLES FOR DOMINANCE OVER THE MINDS OF
PEOPLE.  IT IS NOT TO BE SUPPOSED THAT THE AGE-OLD READINESS TO TRY TO
CONVERT MINDS BY PRESSURE OR SUPPRESSION, INSTEAD OF REASON AND
PERSUASION, IS EXTINCT.  OUR PROTECTION AGAINST ALL KINDS OF FANATICS
AND EXTREMISTS, NONE OF WHOM CAN BE TRUSTED WITH UNLIMITED POWER OVER
OTHERS, LIES NOT IN THEIR FORBEARANCE BUT IN THE LIMITATIONS OF OUR
CONSTITUTION. 

IT HAPPENS THAT THE BELIEF IN OVERTHROW OF REPRESENTATIVE GOVERNMENT
BY FORCE AND VIOLENCE WHICH CONGRESS CONDITIONALLY PROSCRIBES IS ONE
THAT I AGREE IS ERRONEOUS.  BUT "IF THERE IS ANY PRINCIPLE OF THE
CONSTITUTION THAT MORE IMPERATIVELY CALLS FOR ATTACHMENT THAN ANY OTHER
IT IS THE PRINCIPLE OF FREE THOUGHT - NOT FREE THOUGHT FOR THOSE WHO
AGREE WITH US BUT FREEDOM FOR THE THOUGHT THAT WE HATE."  HOLMES, J.,
DISSENTING IN UNITED STATES V. SCHWIMMER, 279 U.S. 644, 654-55. 
MOREOVER, IN JUDGING THE POWER TO DENY A PRIVILEGE TO THINK OTHERWISE,
WE CANNOT IGNORE THE FACT THAT OUR OWN GOVERNMENT ORIGINATED IN
REVOLUTION AND IS LEGITIMATE ONLY IF OVERTHROW BY FORCE MAY SOMETIMES
BE JUSTIFIED.  THAT CIRCUMSTANCES SOMETIMES JUSTIFY IT IS NOT COMMUNIST
DOCTRINE BUT AN OLD AMERICAN BELIEF.  FN11 

THE MEN WHO LED THE STRUGGLE FORCIBLY TO OVERTHROW LAWFULLY
CONSTITUTED BRITISH AUTHORITY FOUND MORAL SUPPORT BY ASSERTING A
NATURAL LAW UNDER WHICH THEIR REVOLUTION WAS JUSTIFIED, AND THEY
BROADLY PROCLAIMED THESE BELIEFS IN THE DOCUMENT BASIC TO OUR FREEDOM. 
SUCH SENTIMENTS HAVE ALSO BEEN GIVEN ARDENT AND RATHER EXTRAVAGANT
EXPRESSION BY AMERICANS OF UNDOUBTED PATRIOTISM N12.  MOST OF THESE
UTTERANCES WERE DIRECTED AGAINST A TYRANNY WHICH LEFT NO WAY TO CHANGE
BY SUFFRAGE.  IT SEEMS TO ME A PERVERSION OF THEIR MEANING TO QUOTE
THEM, AS THE COMMUNISTS OFTEN DO, TO SANCTION VIOLENT ATTACKS UPON A
REPRESENTATIVE GOVERNMENT WHICH DOES AFFORD SUCH MEANS.  BUT WHILE I
THINK CONGRESS MAY MAKE IT A CRIME TO TAKE ONE OVERT STEP TO USE OR TO
INCITE VIOLENCE OR FORCE AGAINST OUR GOVERNMENT, I DO NOT SEE HOW IN
THE LIGHT OF OUR HISTORY A MERE BELIEF THAT ONE HAS A NATURAL RIGHT
UNDER SOME CIRCUMSTANCES TO DO SO CAN SUBJECT AN AMERICAN CITIZEN TO
PREJUDICE ANY MORE THAN POSSESSION OF ANY OTHER ERRONEOUS BELIEF.  CAN
WE SAY THAT MEN OF OUR TIME MUST NOT EVEN THINK ABOUT THE PROPOSITIONS
ON WHICH OUR OWN REVOLUTION WAS JUSTIFIED?  OR MAY THEY THINK, PROVIDED
THEY REACH ONLY ONE CONCLUSION - AND THAT THE OPPOSITE OF MR.
JEFFERSON'S? 

WHILE THE GOVERNMENTS, STATE AND FEDERAL, HAVE EXPANSIVE POWERS TO
CURTAIL ACTION, AND SOME SMALL POWERS TO CURTAIL SPEECH OR WRITING, I
THINK NEITHER HAS ANY POWER, ON ANY PRETEXT, DIRECTLY OR INDIRECTLY TO
ATTEMPT FORECLOSURE OF ANY LINE OF THOUGHT.  OUR FOREFATHERS FOUND THE
EVILS OF FREE THINKING MORE TO BE ENDURED THAN THE EVILS OF INQUEST OR
SUPPRESSION.  THEY GAVE THE STATUS OF ALMOST ABSOLUTE INDIVIDUAL RIGHTS
TO THE OUTWARD MEANS OF EXPRESSING BELIEF.  I CANNOT BELIEVE THAT THEY
LEFT OPEN A WAY FOR LEGISLATION TO EMBARRASS OR IMPEDE THE MERE
INTELLECTUAL PROCESSES BY WHICH THOSE EXPRESSIONS OF BELIEF ARE
EXAMINED AND FORMULATED.  THIS IS NOT ONLY BECAUSE INDIVIDUAL THINKING
PRESENTS NO DANGER TO SOCIETY, BUT BECAUSE THOUGHTFUL, BOLD AND
INDEPENDENT MINDS ARE ESSENTIAL TO WISE AND CONSIDERED SELF
GOVERNMENT. 

PROGRESS GENERALLY BEGINS IN SKEPTICISM ABOUT ACCEPTED TRUTHS. 
INTELLECTUAL FREEDOM MEANS THE RIGHT TO RE-EXAMINE MUCH THAT HAS BEEN
LONG TAKEN FOR GRANTED.  A FREE MAN MUST BE A REASONING MAN, AND HE
MUST DARE TO DOUBT WHAT A LEGISLATIVE OR ELECTORAL MAJORITY MAY MOST
PASSIONATELY ASSERT.  THE DANGER THAT CITIZENS WILL THINK WRONGLY IS
SERIOUS, BUT LESS DANGEROUS THAN ATROPHY FROM NOT THINKING AT ALL.  OUR
CONSTITUTION RELIES ON OUR ELECTORATE'S COMPLETE IDEOLOGICAL FREEDOM TO
NOURISH INDEPENDENT AND RESPONSIBLE INTELLIGENCE AND PRESERVE OUR
DEMOCRACY FROM THAT SUBMISSIVENESS, TIMIDITY AND HERD-MINDEDNESS OF THE
MASSES WHICH WOULD FOSTER A TYRANNY OF MEDIOCRITY.  THE PRICELESS
HERITAGE OF OUR SOCIETY IS THE UNRESTRICTED CONSTITUTIONAL RIGHT OF
EACH MEMBER TO THINK AS HE WILL.  THOUGHT CONTROL IS A COPYRIGHT OF
TOTALITARIANISM, AND WE HAVE NO CLAIM TO IT.  IT IS NOT THE FUNCTION OF
OUR GOVERNMENT TO KEEP THE CITIZEN FROM FALLING INTO ERROR; IT IS THE
FUNCTION OF THE CITIZEN TO KEEP THE GOVERNMENT FROM FALLING INTO
ERROR.  WE COULD JUSTIFY ANY CENSORSHIP ONLY WHEN THE CENSORS ARE
BETTER SHIELDED AGAINST ERROR THAN THE CENSORED. 

THE IDEA THAT A CONSTITUTION SHOULD PROTECT INDIVIDUAL NONCONFORMITY
IS ESSENTIALLY AMERICAN AND IS THE LAST THING IN THE WORLD THAT
COMMUNISTS WILL TOLERATE.  NOTHING EXCEEDS THE BITTERNESS OF THEIR
DEMANDS FOR FREEDOM FOR THEMSELVES IN THIS COUNTRY EXCEPT THE
BITTERNESS OF THEIR INTOLERANCE OF FREEDOM FOR OTHERS WHERE THEY ARE IN
POWER.  FN13  AN EXACTION OF SOME PROFESSION OF BELIEF OR NONBELIEF IS
PRECISELY WHAT THE COMMUNISTS WOULD ENACT - EACH INDIVIDUAL MUST ADOPT
THE IDEAS THAT ARE COMMON TO THE RULING GROUP.  THEIR WHOLE PHILOSOPHY
IS TO MINIMIZE MAN AS AN INDIVIDUAL AND TO INCREASE THE POWER OF MAN
ACTING IN THE MASS.  IF ANY SINGLE CHARACTERISTIC DISTINGUISHES OUR
DEMOCRACY FROM COMMUNISM IT IS OUR RECOGNITION OF THE INDIVIDUAL AS A
PERSONALITY RATHER THAN AS A SOULLESS PART IN THE JIGSAW PUZZLE THAT IS
THE COLLECTIVIST STATE. 

I ADHERE TO VIEWS I HAVE HERETOFORE EXPRESSED, WHETHER THE COURT
AGREED, WEST VIRGINIA BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, OR
DISAGREED, SEE DISSENTING OPINION IN UNITED STATES V. BALLARD, 322 U.S.
78, 92, THAT OUR CONSTITUTION EXCLUDES BOTH GENERAL AND LOCAL
GOVERNMENTS FROM THE REALM OF OPINIONS AND IDEAS, BELIEFS AND DOUBTS,
HERESY AND ORTHODOXY, POLITICAL, RELIGIOUS OR SCIENTIFIC.  THE RIGHT TO
SPEAK OUT, OR TO PUBLISH, ALSO IS PROTECTED WHEN IT DOES NOT CLEARLY
AND PRESENTLY THREATEN SOME INJURY TO SOCIETY WHICH THE GOVERNMENT HAS
A RIGHT TO PROTECT.  SEPARATE OPINION, THOMAS V. COLLINS, 323 U.S.
516.  BUT I HAVE PROTESTED THE DEGRADATION OF THESE CONSTITUTIONAL
LIBERTIES TO IMMUNIZE AND APPROVE MOB MOVEMENTS, WHETHER THOSE MOBS BE
RELIGIOUS OR POLITICAL, RADICAL OR CONSERVATIVE, LIBERAL OR ILLIBERAL,
DOUGLAS V. CITY OF JEANNETTE, 319 U.S. 157; TERMINIELLO V. CHICAGO, 337
U.S. 1, 13, OR TO AUTHORIZE PRESSURE GROUPS TO USE AMPLIFYING DEVICES
TO DROWN OUT THE NATURAL VOICE AND DESTROY THE PEACE OF OTHER
INDIVIDUALS.  SAIA V. PEOPLE OF NEW YORK, 334 U.S. 558; KOVACS V.
COOPER, 336 U.S. 77.  AND I HAVE POINTED OUT THAT MEN CANNOT ENJOY
THEIR RIGHT TO PERSONAL FREEDOM IF FANATICAL MASSES, WHATEVER THEIR
MISSION, CAN STRANGLE INDIVIDUAL THOUGHTS AND INVADE PERSONAL PRIVACY. 
MARTIN V. STRUTHERS, 319 U.S. 141, DISSENT AT 166.  A CATALOGUE OF
RIGHTS WAS PLACED IN OUR CONSTITUTION, IN MY VIEW, TO PROTECT THE
INDIVIDUAL IN HIS INDIVIDUALITY, AND NEITHER STATUTES WHICH PUT THOSE
RIGHTS AT THE MERCY OF OFFICIALS NOR JUDICIAL DECISIONS WHICH PUT THEM
AT THE MERCY OF THE MOB ARE CONSISTENT WITH ITS TEXT OR ITS SPIRIT. 

I THINK THAT UNDER OUR SYSTEM, IT IS TIME ENOUGH FOR THE LAW TO LAY
HOLD OF THE CITIZEN WHEN HE ACTS ILLEGALLY, OR IN SOME RARE
CIRCUMSTANCES WHEN HIS THOUGHTS ARE GIVEN ILLEGAL UTTERANCE.  I THINK
WE MUST LET HIS MIND ALONE.  FN14

         IV. 

THE TASK OF THIS COURT TO MAINTAIN A BALANCE BETWEEN LIBERTY AND
AUTHORITY IS NEVER DONE, BECAUSE NEW CONDITIONS TODAY UPSET THE
EQUILIBRIUMS OF YESTERDAY.  THE SEESAW BETWEEN FREEDOM AND POWER MAKES
UP MOST OF THE HISTORY OF GOVERNMENTS, WHICH, AS BRYCE POINTS OUT, ON A
LONG VIEW CONSISTS OF REPEATING A PAINFUL CYCLE FROM ANARCHY TO TYRANNY
AND BACK AGAIN.  THE COURT'S DAY-TO-DAY TASK IS TO REJECT AS FALSE,
CLAIMS IN THE NAME OF CIVIL LIBERTY WHICH, IF GRANTED, WOULD PARALYZE
OR IMPAIR AUTHORITY TO DEFEND EXISTENCE OF OUR SOCIETY, AND TO REJECT
AS FALSE, CLAIMS IN THE NAME OF SECURITY WHICH WOULD UNDERMINE OUR
FREEDOMS AND OPEN THE WAY TO OPPRESSION.  THESE ARE THE COMPETING
CONSIDERATIONS INVOLVED IN JUDGING ANY MEASURES WHICH GOVERNMENT MAY
TAKE TO SUPPRESS OR DISADVANTAGE ITS OPPONENTS AND CRITICS.    I
CONCLUDE THAT TODAY'S TASK CAN ONLY BE DISCHARGED BY HOLDING THAT ALL
PARTS OF THIS OATH WHICH REQUIRE DISCLOSURE OF OVERT ACTS OF
AFFILIATION OR MEMBERSHIP IN THE COMMUNIST PARTY ARE WITHIN THE
COMPETENCE OF CONGRESS TO ENACT AND THAT ANY PARTS OF IT THAT CALL FOR
A DISCLOSURE OF BELIEF UNCONNECTED WITH ANY OVERT ACT ARE BEYOND ITS
POWER.  FN15 

FN1  OF COURSE, IT IS NOT FOR ANY MEMBER OF THIS COURT TO EXPRESS OR
TO ACT UPON ANY OPINION HE MAY HAVE AS TO THE WISDOM, EFFECTIVENESS OR
NEED OF THIS LEGISLATION.  OUR "INQUIRIES, WHERE THE LEGISLATIVE
JUDGMENT IS DRAWN IN QUESTION, MUST BE RESTRICTED TO THE ISSUE WHETHER
ANY STATE OF FACTS EITHER KNOWN OR WHICH COULD REASONABLY BE ASSUMED
AFFORDS SUPPORT FOR IT."  UNITED STATES V. CAROLENE PRODUCTS CO., 304
U.S. 144, 154. 

FN2  IT IS UNNECESSARY TO SET OUT A COMPREHENSIVE COMPENDIUM OF THE
MATERIALS WHICH CONGRESS MAY OR COULD HAVE CONSIDERED, OR TO REVIEW THE
VOLUMINOUS EVIDENCE BEFORE ITS SEVERAL COMMITTEES, MUCH OF WHICH IS
ALREADY REFERRED TO IN THE COURT'S OPINION.  MOST OF THIS INFORMATION
WOULD BE OF DOUBTFUL ADMISSIBILITY OR CREDIBILITY IN A JUDICIAL
PROCEEDING.  ITS PERSUASIVENESS, VALIDITY AND CREDIBILITY FOR
LEGISLATIVE PURPOSES ARE FOR CONGRESS, SEE N. 1, SUPRA.  I INTIMATE NO
OPINION AS TO ITS SUFFICIENCY FOR PURPOSES OF A CRIMINAL TRIAL. 

AN INTRODUCTION TO THE LITERATURE ON THE SUBJECT MAY BE FOUND IN:
COHEN AND FUCHS, COMMUNISM'S CHALLENGE AND THE CONSTITUTION, 34 CORNELL
L.Q. 182; MOORE, THE COMMUNIST PARTY OF THE U.S.A., 39 AM. POL.  SCI. 
REV. 31; TIMASHEFF, THE SCHNEIDERMAN CASE - ITS POLITICAL ASPECTS, 12
FORD.  L. REV. 209; NOTE, 32 GEORGETOWN L.J. 405, 411-418; EMERSON &
HELFELD, LOYALTY AMONG GOVERNMENT EMPLOYEES, 58 YALE L.J. 1, 61-64;
DONOVAN & JONES, PROGRAM FOR A DEMOCRATIC COUNTER ATTACK TO COMMUNIST
PENETRATION OF GOVERNMENT SERVICE, 58 YALE L.J. 1211, 1215-1222; AND
SEE NOTES, 48 COL. L. REV. 253; 96 U. OF PA. L. REV. 381; 1 STANFORD L.
REV. 85; 23 NOTRE DAME LAWYER 577; 34 VA. L. REV. 439, 450. 

SEE ALSO MILLS, THE NEW MEN OF POWER (1948) 186-200; LEVENSTEIN,
LABOR TODAY AND TOMORROW (1945) 159-177; TELLER, MANAGEMENT FUNCTIONS
UNDER COLLECTIVE BARGAINING (1947) 401-410; SMITH, SPOTLIGHT ON LABOR
UNIONS (1946) 40-43, 63-67, 79-82; TAFT, ECONOMICS AND PROBLEMS OF
LABOR (1948) 499-501, 722; SAPOSS, LEFT WING UNIONISM (1926) 48-65;
FOSTER, FROM BRYAN TO STALIN (1937) 275-277; GITLOW, I CONFESS (1940)
334-395; THE COMMUNIST IN LABOR RELATIONS TODAY (RESEARCH INSTITUTE OF
AMERICA, NEW YORK, MARCH 28, 1946); BALDWIN, UNION ADMINISTRATION AND
CIVIL LIBERTIES, 248 ANNALS 54, 59; LABOR ABROAD, DEC. 1947, NO. 5(U.S.
DEPT. OF LABOR, BUREAU OF LABOR STATISTICS) 3; LABOR ABROAD, FEB. 1948,
NO. 6(U.S. DEPT. OF LABOR, BUREAU OF LABOR STATISTICS) 1-3; POSTWAR
LABOR MOVEMENT IN ITALY, 68 MONTHLY LABOR REVIEW (U.S. DEPT. OF LABOR,
BUREAU OF LABOR STATISTICS) 49.  FOR THE STORY OF AMERICAN POLITICAL
PARTIES SEE BINKLEY, AMERICAN POLITICAL PARTIES (2D ED., 1945); 2
BRYCE, THE AMERICAN COMMONWEALTH (2D ED. REV. 1891); AND ON THE
COMMUNIST PARTY, IN ADDITION TO MATERIALS ABOVE CITED, ODEGARD AND
HELMS, AMERICAN POLITICS (1938) 795-797. 

FN3  SUCH IS THE VIEW OF STUDENTS OF WESTERN SOCIETY, WITH OUTLOOK SO
OPPOSED AS LORD BALFOUR AND HAROLD LASKI.  BALFOUR WROTE: 

"OUR ALTERNATING CABINETS, THOUGH BELONGING TO DIFFERENT PARTIES,
HAVE NEVER DIFFERED ABOUT THE FOUNDATION OF SOCIETY, AND IT IS EVIDENT
THAT OUR WHOLE POLITICAL MACHINERY PRESUPPOSES A PEOPLE SO
FUNDAMENTALLY AT ONE THAT THEY CAN AFFORD TO BICKER; AND SO SURE OF
THEIR OWN MODERATION THAT THEY ARE NOT DANGEROUSLY DISTURBED BY THE
NEVERENDING DIN OF POLITICAL CONFLICT.  MAY IT ALWAYS BE SO."  PREFACE
TO THE WORLD'S CLASSICS EDITION OF BAGEHOT'S ENGLISH CONSTITUTION, P.
XXIII. 

LASKI COMMENTED: 

"IN AN INTERESTING PASSAGE (CITING THE ABOVE) LORD BALFOUR HAS DRAWN
ATTENTION TO THE FACT THAT THE SUCCESS OF THE BRITISH CONSTITUTION IN
THE NINETEENTH CENTURY - IT IS WORTH ADDING THE GENERAL SUCCESS OF
REPRESENTATIVE GOVERNMENT - WAS BUILT UPON AN AGREEMENT BETWEEN PARTIES
IN THE STATE UPON FUNDAMENTAL PRINCIPLES.  THERE WAS, THAT IS, A
KINDRED OUTLOOK UPON LARGE ISSUES; AND SINCE FIGHTING WAS CONFINED TO
MATTERS OF COMPARATIVE DETAIL, MEN WERE PREPARED TO LET REASON HAVE ITS
SWAY IN THE REALM OF CONFLICT.  FOR IT IS SIGNIFICANT THAT IN THE ONE
REALM WHERE DEPTH OF FEELING WAS PASSIONATE - IRISH HOME RULE - EVENTS
MOVED RAPIDLY TO THE TEST OF THE SWORD; AND THE SETTLEMENT MADE WAS
EFFECTED BY VIOLENCE AND NOT BY REASON."  LASKI, LIBERTY IN THE MODERN
STATE, 238. 

IF WE SUBSTITUTE THE CIVIL WAR FOR IRISH HOME RULE, THESE STATEMENTS
BECOME AS APPLICABLE TO THE UNITED STATES AS THEY ARE TO ENGLAND. 

FN4  TO COMPARE ATTACKS AGAINST THOMAS JEFFERSON WITH ATTACKS AGAINST
THE COMMUNIST LEADERS - AS COMMUNISTS GENERALLY DO (E.G. DENNIS, LET
THE PEOPLE KNOW (1947) 13) - WOULD BE MEANINGFUL ONLY IF HIS CHARACTER
AND MOTIVES WERE COMPARABLE TO THOSE OF THE COMMUNIST LEADERS.  WHEN WE
CONSIDER THAT JEFFERSON WAS THE AUTHOR OF VIRGINIA'S STATUTE OF
RELIGIOUS LIBERTY, WAS WAR GOVERNOR OF VIRGINIA, RISKED HIS LIFE TO
SIGN THE DECLARATION OF INDEPENDENCE, WAS SECRETARY OF STATE IN
PRESIDENT WASHINGTON'S CABINET AND BECAME PRESIDENT OF THE UNITED
STATES THROUGH THE INFLUENCE OF ALEXANDER HAMILTON, IT SEEMS
SACRILEGIOUS TO LIKEN JEFFERSON'S MOTIVES IN SUPPORTING CERTAIN PHASES
OF FRENCH POLICY WITH COMMUNIST ALLEGIANCE TO THE KREMLIN. 

FN5  CHANGES AS DECISIVE AS THOSE WROUGHT BY MOST REVOLUTIONS
RESULTED FROM THE ELECTION OF JEFFERSON IN 1800, JACKSON IN 1828,
LINCOLN IN 1860, AND ROOSEVELT IN 1932. 

FN6  I HAVE TAKEN PAINS TO POINT OUT THAT THE WHOLE DOCTRINE OF
CONSPIRACY AND ITS ABUSE PRESENTS A DANGER TO THE FAIR ADMINISTRATION
OF JUSTICE.  CONCURRING OPINION, KRULEWITCH V. UNITED STATES, 336 U.S.
440, 445. 

FN7  SEE CASES COLLECTED IN THOMAS V. COLLINS, 323 U.S. 516, 548. 

FN8  THE ACT LAYS DOWN OTHER REQUIREMENTS FOR THE OATH WHICH DO NOT
REQUIRE EXTENDED DISCUSSION, AS, FOR EXAMPLE, THE CLAUSE "IS NOT A
MEMBER OF OR SUPPORTS ANY ORGANIZATION THAT BELIEVES IN OR TEACHES, THE
OVERTHROW OF THE UNITED STATES GOVERNMENT BY FORCE."  FOR REASONS SET
FORTH IN PARTS I AND II, CONGRESS WOULD UNDOUBTEDLY HAVE POWER TO
REQUIRE DISCLOSURE OF MEMBERSHIP IN AN ORGANIZATION WHICH HAD THE
CHARACTERISTICS OF THE COMMUNIST PARTY OR OTHER CHARACTERISTICS OF
SIMILAR GRAVITY.  AS DRAWN, THIS CLAUSE MIGHT, HOWEVER, APPLY TO
MEMBERSHIP IN A MERE PHILOSOPHICAL OR DISCUSSION GROUP. 

FN9  THIS PART OF THE OATH WAS OBVIOUSLY INTENDED TO DISCLOSE PERSONS
NOT MEMBERS OF OR AFFILIATED WITH THE COMMUNIST PARTY BUT WHO WERE A
PART OF THE UNDERTOW OF THE COMMUNIST MOVEMENT.  IT WAS PROBABLY
SUGGESTED BY THE LONG-STANDING REQUIREMENT OF SOMEWHAT SIMILAR OATHS IN
IMMIGRATION AND NATURALIZATION MATTERS.  THERE IS, HOWEVER, NO ANALOGY
BETWEEN WHAT CONGRESS MAY REQUIRE OF ALIENS AS A CONDITION OF ADMISSION
OR OF CITIZENSHIP AND WHAT IT MAY REQUIRE OF A CITIZEN. 

FN10  SEE HOLMES, THE COMMON LAW, LECTURES II, III AND IV, PP. 65-68,
132 ET SEQ. 

FN11  NOTHING IS MORE PERNICIOUS THAN THE IDEA THAT EVERY RADICAL
MEASURE IS "COMMUNISTIC" OR EVERY LIBERAL-MINDED PERSON A "COMMUNIST." 
ONE OF THE TRAGEDIES OF OUR TIME IS THE CONFUSION BETWEEN REFORM AND
COMMUNISM - A CONFUSION TO WHICH BOTH THE FRIENDS AND ENEMIES OF REFORM
HAVE CONTRIBUTED, THE ONE BY FAILING TO TAKE A CLEAR STAND AGAINST
COMMUNISTS AND COMMUNISM AND THE OTHER BY CHARACTERIZING EVEN THE MOST
MODERATE SUGGESTION OF REFORM AS "COMMUNISTIC" AND ITS ADVOCATES AS
"COMMUNISTS."  UNQUESTIONING IDOLATRY OF THE STATUS QUO HAS NEVER BEEN
AN AMERICAN CHARACTERISTIC. 

FN12  A SURPRISING CATALOGUE OF STATEMENTS COULD BE COMPILED.  THE
FOLLOWING ARE SELECTED FROM MENCKEN, A NEW DICTIONARY OF QUOTATIONS,
UNDER THE RUBRIC "REVOLUTION":  "WHENEVER ANY GOVERNMENT BECOMES
DESTRUCTIVE OF THESE ENDS (LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS)
IT IS THE RIGHT OF THE PEOPLE TO ALTER OR ABOLISH IT, AND TO INSTITUTE
A NEW GOVERNMENT, LAYING ITS FOUNDATIONS ON SUCH PRINCIPLES, AND
ORGANIZING ITS POWERS IN SUCH FORM, AS TO THEM SHALL SEEM MOST LIKELY
TO EFFECT THEIR SAFETY AND HAPPINESS."  THOMAS JEFFERSON, THE
DECLARATION OF INDEPENDENCE, JULY 4, 1776.  "THE COMMUNITY HATH AN
INDUBITABLE, INALIENABLE, AND INDEFEASIBLE RIGHT TO REFORM, ALTER OR
ABOLISH GOVERNMENT, IN SUCH MANNER AS SHALL BE BY THAT COMMUNITY JUDGED
MOST CONDUCIVE TO THE PUBLIC WEAL."  THE PENNSYLVANIA DECLARATION OF
RIGHTS, 1776.  "IT IS AN OBSERVATION OF ONE OF THE PROFOUNDEST
INQUIRERS INTO HUMAN AFFAIRS THAT A REVOLUTION OF GOVERNMENT IS THE
STRONGEST PROOF THAT CAN BE GIVEN BY A PEOPLE OF THEIR VIRTUE AND GOOD
SENSE."  JOHN ADAMS, DIARY, 1786.  "WHAT COUNTRY CAN PRESERVE ITS
LIBERTIES IF THEIR RULERS ARE NOT WARNED FROM TIME TO TIME THAT THEIR
PEOPLE PRESERVE THE SPIRIT OF RESISTANCE?  LET THEM TAKE ARMS."  THOMAS
JEFFERSON, LETTER TO W. S. SMITH, NOV. 13, 1787.  "AN OPPRESSED PEOPLE
ARE AUTHORIZED WHENEVER THEY CAN TO RISE AND BREAK THEIR FETTERS." 
HENRY CLAY, SPEECH IN THE HOUSE OF REPRESENTATIVES, MARCH 4, 1818. 
"ANY PEOPLE ANYWHERE, BEING INCLINED AND HAVING THE POWER, HAVE THE
RIGHT TO RISE UP AND SHAKE OFF THE EXISTING GOVERNMENT AND FORM A NEW
ONE THAT SUITS THEM BETTER."  ABRAHAM LINCOLN, SPEECH IN THE HOUSE OF
REPRESENTATIVES, 1848.  "ALL MEN RECOGNIZE THE RIGHT OF REVOLUTION:
THAT IS, THE RIGHT TO REFUSE ALLEGIANCE TO, AND TO RESIST, THE
GOVERNMENT WHEN ITS TYRANNY OR ITS INEFFICIENCY ARE GREAT AND
UNENDURABLE."  H. D. THOREAU, AN ESSAY ON CIVIL DISOBEDIENCE, 1849. 
"THIS COUNTRY, WITH ITS INSTITUTIONS, BELONGS TO THE PEOPLE WHO INHABIT
IT.  WHENEVER THEY SHALL GROW WEARY OF THE EXISTING GOVERNMENT THEY CAN
EXERCISE THEIR CONSTITUTIONAL RIGHT OF AMENDING IT, OR THEIR
REVOLUTIONARY RIGHT TO DISMEMBER OR OVERTHROW IT."  ABRAHAM LINCOLN,
INAUGURAL ADDRESS, MARCH 4, 1861.  "WHENEVER THE ENDS OF GOVERNMENT ARE
PERVERTED, AND PUBLIC LIBERTY MANIFESTLY ENDANGERED, AND ALL OTHER
MEANS OF REDRESS ARE INEFFECTUAL, THE PEOPLE MAY, AND OF A RIGHT OUGHT
TO REFORM THE OLD, OR ESTABLISH A NEW GOVERNMENT; THE DOCTRINE OF NON
RESISTANCE AGAINST ARBITRARY POWER AND OPPRESSION IS ABSURD, SLAVISH
AND DESTRUCTIVE OF THE GOOD AND HAPPINESS OF MANKIND."  DECLARATION OF
RIGHTS OF MARYLAND, 1867.  "THE RIGHT OF REVOLUTION IS AN INHERENT
ONE.  WHEN PEOPLE ARE OPPRESSED BY THEIR GOVERNMENT, IT IS A NATURAL
RIGHT THEY ENJOY TO RELIEVE THEMSELVES OF THE OPPRESSION, IF THEY ARE
STRONG ENOUGH, EITHER BY WITHDRAWAL FROM IT, OR BY OVERTHROWING IT AND
SUBSTITUTING A GOVERNMENT MORE ACCEPTABLE."  U. S. GRANT, PERSONAL
MEMOIRS, I, 1885. 

QUOTATIONS OF SIMILAR STATEMENTS COULD BE MULTIPLIED INDEFINITELY. 
OF COURSE, THESE QUOTATIONS ARE OUT OF THEIR CONTEXT AND OUT OF THEIR
TIMES.  AND DESPITE THEIR ABSTRACT THEORIES ABOUT REVOLT, IT SHOULD
ALSO BE NOTED THAT ADAMS, JEFFERSON, LINCOLN AND GRANT WERE
UNCOMPROMISING IN PUTTING DOWN ANY SHOW OF REBELLION TOWARD THE
GOVERNMENT THEY HEADED. 

THE REVOLUTIONARY ORIGIN OF OUR OWN GOVERNMENT HAS INCLINED AMERICANS
TO VALUE REVOLUTION AS A MEANS TO LIBERTY AND LOOSELY TO THINK THAT ALL
REVOLUTIONISTS ARE LIBERALS.  THE FACT IS, HOWEVER, THAT VIOLENT
REVOLUTIONS ARE RARE WHICH DO MORE IN THE LONG RUN THAN TO OVERTHROW
ONE TYRANNY TO MAKE WAY FOR ANOTHER.  THE CYCLE FROM REVOLT TO REACTION
HAS TAKEN LESS THAN A SCORE OF BLOODY YEARS IN THE GREAT REVOLUTIONS. 
THE PURITAN COMMONWEALTH UNDER CROMWELL LED BUT TO THE RESTORATION; THE
FRENCH BY REVOLUTION ESCAPED FROM THE REIGN OF LOUIS XVI TO THE
DICTATORSHIP OF NAPOLEON; THE RUSSIANS OVERTHREW THE CZAR AND WON THE
DICTATORSHIP OF LENIN AND STALIN; THE GERMANS DEPOSED THE KAISER AND
FELL VICTIMS OF A DICTATORSHIP BY HITLER.  I AM CONVINCED THAT FORCE
AND VIOLENCE DO NOT SERVE THE CAUSE OF LIBERTY AS WELL AS NONVIOLENCE. 
SEE FISCHER, GANDHI AND STALIN, PASSIM. 

BUT THE SENTIMENTS I HAVE QUOTED HAVE STRONG APPEAL TO THE IMPETUOUS
AND ARE DEEPLY IMBEDDED IN AMERICAN TRADITION. 

FN13  PRIME MINISTER ATTLEE RECENTLY STATED:  "I CONSTANTLY GET
HYPOCRITICAL RESOLUTIONS PROTESTING AGAINST ALLEGED INFRINGEMENTS OF
FREEDOM IN THIS COUNTRY.  I GET PROTESTS BECAUSE WE KEEP OUT FROM
PLACES WHERE SECRET WORK IS CARRIED ON PEOPLE WHO CANNOT BE TRUSTED. 
THIS FROM COMMUNISTS WHO KNOW THAT THEIR FELLOWS IN COMMUNIST COUNTRIES
CARRY ON A CONSTANT PURGE AND RUTHLESSLY REMOVE FROM OFFICE ANYONE WHO
SHOWS THE SLIGHTEST SIGN OF DEVIATING FROM WHAT THEIR RULERS CONSIDER
TO BE ORTHODOXY.  IT IS SICKENING HYPOCRISY."  LONDON TIMES WEEKLY
EDITION, JULY 6, 1949. 

FN14  THE COURT APPEARS TO RECOGNIZE AND COMPOUND THE CONSTITUTIONAL
WEAKNESS OF THIS STATUTE AND, TO SAVE THIS PART OF THE OATH FROM
UNCONSTITUTIONALITY, DECLINES TO READ THE TEXT "VERY LITERALLY."  IT
RENDERS THE ACT TO CALL FOR DISCLAIMER OF BELIEF IN FORCIBLE OVERTHROW
ONLY AS AN OBJECTIVE BUT NOT AS A PROPHECY.  AND FURTHERMORE, ONE IS
ALLOWED TO BELIEVE IN FORCIBLE OVERTHROW, EVEN AS AN OBJECTIVE, SO LONG
AS THE BELIEF DOES NOT RELATE TO THE GOVERNMENT "AS IT NOW EXISTS."  I
THINK WE DO NOT MAKE AN ACT CONSTITUTIONAL BY MAKING IT VAGUE BUT ONLY
COMPOUND ITS INVALIDITY.  CF. WINTERS V. NEW YORK, 333 U.S. 507. 

FN15  THIS CONCLUSION, IF IT PREVAILED, WOULD REQUIRE DECISION OF THE
EFFECT OF PARTIAL INVALIDITY ON THE WHOLE AND THE APPLICABILITY OF THE
SEVERABILITY CLAUSE.  AS IT DOES NOT PREVAIL, DISCUSSION OF THE
QUESTION WOULD BE ACADEMIC. 

MR. JUSTICE BLACK, DISSENTING. 

WE HAVE SAID THAT "FREEDOM TO THINK IS ABSOLUTE OF ITS OWN NATURE;
THE MOST TYRANNICAL GOVERNMENT IS POWERLESS TO CONTROL THE INWARD
WORKINGS OF THE MIND."  FN1  BUT PEOPLE CAN BE, AND IN LESS DEMOCRATIC
COUNTRIES HAVE BEEN, MADE TO SUFFER FOR THEIR ADMITTED OR CONJECTURED
THOUGHTS.  BLACKSTONE RECALLS THAT DIONYSIUS IS "RECORDED TO HAVE
EXECUTED A SUBJECT, BARELY FOR DREAMING THAT HE HAD KILLED HIM; WHICH
WAS HELD FOR A SUFFICIENT PROOF, THAT HE HAD THOUGHT THEREOF IN HIS
WAKING HOURS."  FN2  SUCH A RESULT, WHILE TOO BARBARIC TO BE TOLERATED
IN OUR NATION, IS NOT ILLOGICAL IF A GOVERNMENT CAN TAMPER IN THE REALM
OF THOUGHT AND PENALIZE "BELIEF" ON THE GROUND THAT IT MIGHT LEAD TO
ILLEGAL CONDUCT.  INDIVIDUAL FREEDOM AND GOVERNMENTAL THOUGHT-PROBING
CANNOT LIVE TOGETHER.  AS THE COURT ADMITS EVEN TODAY, UNDER THE FIRST
AMENDMENT "BELIEFS ARE INVIOLATE."    TODAY'S DECISION REJECTS THAT
FUNDAMENTAL PRINCIPLE.  THE COURT ADMITS, AS IT MUST, THAT THE
"PROSCRIPTIONS" OF SEC. 9(H) OF THE NATIONAL LABOR RELATIONS ACT AS
AMENDED BY THE TAFT-HARTLEY ACT REST ON "BELIEFS AND POLITICAL
AFFILIATIONS," AND THAT "CONGRESS HAS UNDENIABLY DISCOURAGED THE LAWFUL
EXERCISE OF POLITICAL FREEDOMS" WHICH ARE "PROTECTED BY THE FIRST
AMENDMENT."  THESE INESCAPABLE FACTS SHOULD COMPEL A HOLDING THAT SEC.
9(H) CONFLICTS WITH THE FIRST AMENDMENT. 

CRUCIAL TO THE COURT'S CONTRARY HOLDING IS THE PREMISE THAT
CONGRESSIONAL POWER TO REGULATE TRADE AND TRAFFIC INCLUDES POWER TO
PROSCRIBE "BELIEFS AND POLITICAL AFFILIATIONS."  NO CASE CITED BY THE
COURT PROVIDES THE LEAST VESTIGE OF SUPPORT FOR THUS HOLDING THAT THE
COMMERCE CLAUSE RESTRICTS THE RIGHT TO THINK.  ON THE CONTRARY, THE
FIRST AMENDMENT WAS ADDED AFTER ADOPTION OF THE CONSTITUTION FOR THE
EXPRESS PURPOSE OF BARRING CONGRESS FROM USING PREVIOUSLY GRANTED
POWERS TO ABRIDGE BELIEF OR ITS EXPRESSION.  FREEDOM TO THINK IS
INEVITABLY ABRIDGED WHEN BELIEFS ARE PENALIZED BY IMPOSITION OF CIVIL
DISABILITIES. 

SINCE SEC. 9(H) WAS PASSED TO EXCLUDE CERTAIN BELIEFS FROM ONE ARENA
OF THE NATIONAL ECONOMY, IT WAS QUITE NATURAL TO UTILIZE THE TEST OATH
AS A WEAPON.  HISTORY ATTESTS THE EFFICACY OF THAT INSTRUMENT FOR
INFLICTING PENALTIES AND DISABILITIES ON OBNOXIOUS MINORITIES.  IT WAS
ONE OF THE MAJOR DEVICES USED AGAINST THE HUGUENOTS IN FRANCE, AND
AGAINST "HERETICS" DURING THE SPANISH INQUISITION.  IT HELPED ENGLISH
RULERS IDENTIFY AND OUTLAW CATHOLICS, QUAKERS, BAPTISTS, AND
CONGREGATIONALISTS - GROUPS CONSIDERED DANGEROUS FOR POLITICAL AS WELL
AS RELIGIOUS REASONS.  FN3 AND WHEREVER THE TEST OATH WAS IN VOGUE,
SPIES AND INFORMERS FOUND REWARDS FAR MORE TEMPTING THAN TRUTH.  FN4
PAINFUL AWARENESS OF THE EVILS OF THOUGHT ESPIONAGE MADE SUCH OATHS "AN
ABOMINATION TO THE FOUNDERS OF THIS NATION," IN RE SUMMERS, 325 U.S.
561, 576, DISSENTING OPINION.  WHETHER RELIGIOUS, POLITICAL, OR BOTH,
TEST OATHS ARE IMPLACABLE FOES OF FREE THOUGHT.  BY APPROVING THEIR
IMPOSITION, THIS COURT HAS INJECTED COMPROMISE INTO A FIELD WHERE THE
FIRST AMENDMENT FORBIDS COMPROMISE. 

THE COURT ASSURES US THAT TODAY'S ENCROACHMENT ON LIBERTY IS JUST A
SMALL ONE, THAT THIS PARTICULAR STATUTORY PROVISION "TOUCHES ONLY A
RELATIVE HANDFUL OF PERSONS, LEAVING THE GREAT MAJORITY OF PERSONS OF
THE IDENTIFIED AFFILIATIONS AND BELIEFS COMPLETELY FREE FROM
RESTRAINT."  BUT NOT THE LEAST OF THE VIRTUES OF THE FIRST AMENDMENT IS
ITS PROTECTION OF EACH MEMBER OF THE SMALLEST AND MOST UNORTHODOX
MINORITY.  CENTURIES OF EXPERIENCE TESTIFY THAT LAWS AIMED AT ONE
POLITICAL OR RELIGIOUS GROUP, HOWEVER RATIONAL THESE LAWS MAY BE IN
THEIR BEGINNINGS, GENERATE HATREDS AND PREJUDICES WHICH RAPIDLY SPREAD
BEYOND CONTROL.  TOO OFTEN IT IS FEAR WHICH INSPIRES SUCH PASSIONS, AND
NOTHING IS MORE RECKLESS OR CONTAGIOUS.  IN THE RESULTING HYSTERIA,
POPULAR INDIGNATION TARS WITH THE SAME BRUSH ALL THOSE WHO HAVE EVER
BEEN ASSOCIATED WITH ANY MEMBER OF THE GROUP UNDER ATTACK OR WHO HOLD A
VIEW WHICH, THOUGH SUPPORTED BY REVERED AMERICANS AS ESSENTIAL TO
DEMOCRACY, HAS BEEN ADOPTED BY THAT GROUP FOR ITS OWN PURPOSES. 

UNDER SUCH CIRCUMSTANCES, RESTRICTIONS IMPOSED ON PROSCRIBED GROUPS
ARE SELDOM STATIC,  FN5 EVEN THOUGH THE RATE OF EXPANSION MAY NOT MOVE
IN GEOMETRIC PROGRESSION FROM DISCRIMINATION TO ARM-BAND TO GHETTO AND
WORSE.  THUS I CANNOT REGARD THE COURT'S HOLDING AS ONE WHICH MERELY
BARS COMMUNISTS FROM HOLDING UNION OFFICE AND NOTHING MORE.  FOR ITS
REASONING WOULD APPLY JUST AS FORCIBLY TO STATUTES BARRING COMMUNISTS
AND THEIR SUSPECTED SYMPATHIZERS FROM ELECTION TO POLITICAL OFFICE,
MERE MEMBERSHIP IN UNIONS, AND IN FACT FROM GETTING OR HOLDING ANY JOBS
WHEREBY THEY COULD EARN A LIVING. 

THE COURT FINDS COMFORT IN ITS ASSURANCE THAT WE NEED NOT FEAR TOO
MUCH LEGISLATIVE RESTRICTION OF POLITICAL BELIEF OR ASSOCIATION "WHILE
THIS COURT SITS."  THAT EXPRESSION, WHILE FELICITOUS, HAS NO VALIDITY
IN THIS PARTICULAR CONSTITUTIONAL FIELD.  FOR IT SPRINGS FROM THE
ASSUMPTION THAT INDIVIDUAL MENTAL FREEDOM CAN BE CONSTITUTIONALLY
ABRIDGED WHENEVER ANY MAJORITY OF THIS COURT FINDS A SATISFACTORY
LEGISLATIVE REASON.  NEVER BEFORE HAS THIS COURT HELD THAT THE
GOVERNMENT COULD FOR ANY REASON ATTAINT PERSONS FOR THEIR POLITICAL
BELIEFS OR AFFILIATIONS.  IT DOES SO TODAY. 

TODAY THE "POLITICAL AFFILIATION" HAPPENS TO BE THE COMMUNIST PARTY:
TESTIMONY OF AN EX-COMMUNIST THAT SOME COMMUNIST UNION OFFICERS HAD
CALLED "POLITICAL STRIKES" IS HELD SUFFICIENT TO UPHOLD A LAW COERCING
UNION MEMBERS NOT TO ELECT ANY COMMUNIST AS AN OFFICER.  UNDER THIS
REASONING, AFFILIATIONS WITH OTHER POLITICAL PARTIES COULD BE
PROSCRIBED JUST AS VALIDLY.  OF COURSE THERE IS NO PRACTICAL
POSSIBILITY THAT EITHER MAJOR POLITICAL PARTY WOULD TURN THIS WEAPON ON
THE OTHER, EVEN THOUGH MEMBERS OF ONE PARTY WERE ACCUSED OF "POLITICAL
LOCKOUTS" A FEW YEARS AGO AND MEMBERS OF THE OTHER ARE NOW CHARGED WITH
FOSTERING A "WELFARE STATE" ALIEN TO OUR SYSTEM.  BUT WITH MINOR
PARTIES THE POSSIBILITY IS NOT WHOLLY FANCIFUL.  ONE, FOR INSTANCE,
ADVOCATES SOCIALISM; FN6  ANOTHER ALLEGEDLY FOLLOWS THE COMMUNIST
"LINE"; STILL ANOTHER IS REPEATEDLY CHARGED WITH A DESIRE AND PURPOSE
TO DEPRIVE NEGROES OF EQUAL JOB OPPORTUNITIES.  UNDER TODAY'S OPINION
CONGRESS COULD VALIDLY BAR ALL MEMBERS OF THESE PARTIES FROM
OFFICERSHIP IN UNIONS OR INDUSTRIAL CORPORATIONS; THE ONLY SHOWING
REQUIRED WOULD BE TESTIMONY THAT SOME MEMBERS IN SUCH POSITIONS HAD, BY
ATTEMPTS TO FURTHER THEIR PARTY'S PURPOSES, UNJUSTIFIABLY FOSTERED
INDUSTRIAL STRIFE WHICH HAMPERED INTERSTATE COMMERCE. 

IT IS INDICATED, ALTHOUGH THE OPINION IS NOT THUS LIMITED AND IS
BASED ON THREATS TO COMMERCE RATHER THAN TO NATIONAL SECURITY, THAT
MEMBERS OF THE COMMUNIST PARTY OR ITS "AFFILIATES" CAN BE INDIVIDUALLY
ATTAINTED WITHOUT DANGER TO OTHERS BECAUSE THERE IS SOME EVIDENCE THAT
AS A GROUP THEY ACT IN OBEDIENCE TO THE COMMANDS OF A FOREIGN POWER. 
THIS WAS THE PRECISE REASON GIVEN IN SIXTEENTH-CENTURY ENGLAND FOR
ATTAINTING ALL CATHOLICS UNLESS THEY SUBSCRIBED TO TEST OATHS WHOLLY
INCOMPATIBLE WITH THEIR RELIGION.  FN7  YET IN THE HOUR OF CRISIS, AN
OVERWHELMING MAJORITY OF THE ENGLISH CATHOLICS THUS PERSECUTED RALLIED
LOYALLY TO DEFEND THEIR HOMELAND AGAINST SPAIN AND ITS CATHOLIC
TROOPS.  FN8  AND IN OUR OWN COUNTRY JEFFERSON AND HIS FOLLOWERS WERE
EARNESTLY ACCUSED OF SUBVERSIVE ALLEGIANCE TO FRANCE.  FN9  AT THE
TIME, IMPOSITION OF CIVIL DISABILITY ON ALL MEMBERS OF HIS POLITICAL
PARTY MUST HAVE SEEMED AT LEAST AS DESIRABLE AS DOES SEC. 9(H) TODAY. 
FOR AT STAKE, SO MANY BELIEVED, WAS THE SURVIVAL OF A NEWLY-FOUNDED
NATION, NOT MERELY A FEW POTENTIAL INTERRUPTIONS OF COMMERCE BY STRIKES
"POLITICAL" RATHER THAN ECONOMIC IN ORIGIN. 

THESE EXPERIENCES UNDERLINE THE WISDOM OF THE BASIC CONSTITUTIONAL
PRECEPT THAT PENALTIES SHOULD BE IMPOSED ONLY FOR A PERSON'S OWN
CONDUCT, NOT FOR HIS BELIEFS OR FOR THE CONDUCT OF OTHERS WITH WHOM HE
MAY ASSOCIATE.  GUILT SHOULD NOT BE IMPUTED SOLELY FROM ASSOCIATION OR
AFFILIATION WITH POLITICAL PARTIES OR ANY OTHER ORGANIZATION, HOWEVER
MUCH WE ABHOR THE IDEAS WHICH THEY ADVOCATE.  SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118, 136-139.  FN10  LIKE ANYONE ELSE, INDIVIDUAL
COMMUNISTS WHO COMMIT OVERT ACTS IN VIOLATION OF VALID LAWS CAN AND
SHOULD BE PUNISHED.  BUT THE POSTULATE OF THE FIRST AMENDMENT IS THAT
OUR FREE INSTITUTIONS CAN BE MAINTAINED WITHOUT PROSCRIBING OR
PENALIZING POLITICAL BELIEF, SPEECH, PRESS, ASSEMBLY, OR PARTY
AFFILIATION.  FN11 THIS IS A FAR BOLDER PHILOSOPHY THAN DESPOTIC RULERS
CAN AFFORD TO FOLLOW.  IT IS THE HEART OF THE SYSTEM ON WHICH OUR
FREEDOM DEPENDS. 

FEARS OF ALIEN IDEOLOGIES HAVE FREQUENTLY AGITATED THE NATION AND
INSPIRED LEGISLATION AIMED AT SUPPRESSING ADVOCACY OF THOSE
IDEOLOGIES.  FN12  AT SUCH TIMES THE FOG OF PUBLIC EXCITEMENT OBSCURES
THE ANCIENT LANDMARKS SET UP IN OUR BILL OF RIGHTS.  YET THEN, OF ALL
TIMES, SHOULD THIS COURT ADHERE MOST CLOSELY TO THE COURSE THEY MARK. 
THIS WAS DONE IN DE JONGE V. OREGON, 299 U.S. 353, 365, WHERE THE COURT
STRUCK DOWN A STATE STATUTE MAKING IT A CRIME TO PARTICIPATE IN A
MEETING CONDUCTED BY COMMUNISTS.  IT HAD BEEN STIPULATED THAT THE
COMMUNIST PARTY ADVOCATED VIOLENT OVERTHROW OF THE GOVERNMENT. 
SPEAKING THROUGH CHIEF JUSTICE HUGHES, A UNANIMOUS COURT CALMLY
ANNOUNCED TIME-HONORED PRINCIPLES THAT SHOULD GOVERN THIS COURT TODAY:
"THE GREATER THE IMPORTANCE OF SAFEGUARDING THE COMMUNITY FROM
INCITEMENTS TO THE OVERTHROW OF OUR INSTITUTIONS BY FORCE AND VIOLENCE,
THE MORE IMPERATIVE IS THE NEED TO PRESERVE INVIOLATE THE
CONSTITUTIONAL RIGHTS OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY IN
ORDER TO MAINTAIN THE OPPORTUNITY FOR FREE POLITICAL DISCUSSION, TO THE
END THAT GOVERNMENT MAY BE RESPONSIVE TO THE WILL OF THE PEOPLE AND
THAT CHANGES, IF DESIRED, MAY BE OBTAINED BY PEACEFUL MEANS.  THEREIN
LIES THE SECURITY OF THE REPUBLIC, THE VERY FOUNDATION OF
CONSTITUTIONAL GOVERNMENT." 

FN1  DISSENTING OPINION IN JONES V. OPELIKA, 316 U.S. 584, 618,
ADOPTED AS THE COURT'S OPINION IN 319 U.S. 103.  SEE ALSO CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303. 

FN2  4 BLACKSTONE, COMMENTARIES 79(6TH ED. DUBLIN 1775). 

FN3  THE INCREASING RESTRICTIONS AND PUNISHMENT IMPOSED ON THESE
GROUPS ARE SHOWN BY THE FOLLOWING EXAMPLES.  IN 1558 PARLIAMENT
PRESCRIBED AN OATH, WHICH NO CONSCIENTIOUS CATHOLIC COULD TAKE, FOR ALL
JUDGES, ECCLESIASTICAL MINISTERS, THOSE RECEIVING PAY FROM THE QUEEN,
AND THOSE TAKING UNIVERSITY DEGREES; FOUR YEARS LATER THE OATH WAS
EXTENDED TO SCHOOLMASTERS, LAWYERS, SHERIFFS, AND COURT OFFICERS.  IN
1593 ALL PROTESTANTS WERE REQUIRED TO ATTEND ANGLICAN SERVICES AND
FORBIDDEN TO HOLD NONCONFORMIST RELIGIOUS MEETINGS.  AND CATHOLICS
CONVICTED OF FAILING TO ATTEND ANGLICAN SERVICES REGULARLY WERE
RESTRICTED TO WITHIN FIVE MILES OF THEIR DWELLINGS.  IN 1609 SUCH
CATHOLICS WERE BARRED EVEN FROM SERVING AS EXECUTORS, GUARDIANS,
PHYSICIANS, OR APOTHECARIES, AND THEIR RIGHT TO PROSECUTE SUITS IN
COURT WAS PRACTICALLY ABOLISHED; IT WAS ALSO MADE TREASON TO BE
CONVERTED OR CONVERT ANYONE ELSE TO CATHOLICISM.  BETWEEN 1661 AND
1677, PARLIAMENT OUTLAWED ATTENDANCE AT ANY NON-ANGLICAN RELIGIOUS
SERVICES, AND REQUIRED THOSE HOLDING CIVIL, MILITARY, OR MUNICIPAL
OFFICE TO SUBSCRIBE TO AN OATH WHICH EFFECTIVELY BARRED CATHOLICS AND
NON-ANGLICAN PROTESTANTS.  PUNISHMENT FOR VIOLATIONS OF THESE AND THE
MANY SIMILAR STATUTES RANGED FROM FINES AND IMPRISONMENT TO EXILE AND
DEATH.  SEE, E.G., 1 ELIZ.  C. 1; 5 ELIZ.  C. 1; 35 ELIZ.  CC. 1, 2; 3
JAC.  I CC. 4, 5; 7 JAC.  I CC. 2, 6; 13 CAR.  II STAT. 2, C. 1; 13 &
14 CAR.  II CC. 1, 4, 33; 22 CAR.  II C. 1; 25 CAR.  II C. 2; 30 CAR. 
II STAT. 2. 

AS FOR THE POLITICAL MOTIVATIONS AND OBJECTIVES OF THESE STATUTES,
SEE, E.G., THE DECLARATION OF PURPOSE IN 35 ELIZ.  C. 2, QUOTED IN NOTE
7 INFRA. 

FN4  UNDER THE STUART MONARCHS IN ENGLAND IT WAS STANDARD PRACTICE TO
GIVE AN INFORMER ONE-THIRD OF THE FINES COLLECTED FROM HIS VICTIM.  E.
G., 3 JAC.  I C. 5.  AND A FEW WERE SUFFICIENTLY DARING AND
UNSCRUPULOUS TO OBTAIN THE MORE SATISFYING REWARD OF FAME.  A NOTORIOUS
EXAMPLE TOOK PLACE IN ENGLAND DURING THE REIGN OF CHARLES II: 

"THE POLITICAL ATMOSPHERE WAS ELECTRIC.  ...  THUS IT IS NOT STRANGE
THAT WHEN TITUS OATES, AN ANGLICAN CLERGYMAN WHO HAD BEEN RECONCILED
THE YEAR BEFORE TO ROME, CAME FORWARD IN AUGUST, 1678, TO DENOUNCE A
VAST JESUIT CONSPIRACY AGAINST THE KING'S LIFE AND THE PROTESTANT
RELIGION, HIS TALE OF WILD LIES MET WITH A DEGREE OF CREDENCE THAT
LATER AGES WOULD PERHAPS HAVE REFUSED TO IT.  ... THE POPE, HE
DECLARED, HAD COMMANDED, AND THE JESUITS UNDERTAKEN A CONQUEST OF THE
KINGDOM; ... IN ALL THE ARRANGEMENTS HE HAD BEEN, HE SAID, A TRUSTED
EMISSARY  ...  OVER A HUNDRED CONSPIRATORS, MOSTLY JESUITS, WERE
MENTIONED BY NAME  ...  OATES WAS EXAMINED AT THE COUNCIL BOARD.  THE
KING CAUGHT HIM LYING, BUT THE EXTENT AND GRAVITY OF HIS CHARGES
DEMANDED INVESTIGATION; ...  IN ONE IMPORTANT POINT OATES' STORY WAS
CONFIRMED.  ...  THERE WAS NO 'PLOT' IN OATES' SENSE; BUT THERE WAS
QUITE ENOUGH OF PLOTTING TO COST MEN THEIR HEADS UNDER THE ENGLISH LAW
OF TREASON  ...  "  5 CAMBRIDGE MODERN HISTORY 220-221. 

FN5  SEE NOTE 3 SUPRA.  AND SEE THE COMMENT ON SUCH LEGISLATION IN 2
HALLAM, THE CONSTITUTIONAL HISTORY OF ENGLAND 473(LONDON, 1829):  "IT
IS THE NATURAL CONSEQUENCE OF RESTRICTIVE LAWS TO AGGRAVATE THE
DISAFFECTION WHICH HAS SERVED AS THEIR PRETEXT; AND THUS TO CREATE A
NECESSITY FOR A LEGISLATURE THAT WILL NOT RETRACE ITS STEPS, TO PASS
STILL ONWARD IN THE COURSE OF SEVERITY." 

FN6  PROSCRIPTIONS BASED ON AFFILIATION WITH THE SOCIALIST PARTY ARE
NOT UNPRECEDENTED.  IN 1920 THE NEW YORK ASSEMBLY, UPON ALLEGATIONS
THAT THE PARTY WAS DISLOYAL, SUSPENDED FIVE LEGISLATORS ELECTED ON THE
SOCIALIST TICKET.  THE VIGOROUS PROTESTS OF A BAR ASSOCIATION COMMITTEE
HEADED BY CHARLES EVANS HUGHES, LATER CHIEF JUSTICE OF THIS COURT, WERE
OF NO AVAIL.  SEE JOHN LORD O'BRIAN, LOYALTY TESTS AND GUILT BY
ASSOCIATION, 61 HARV. L. REV. 592, 593. 

FN7  35 ELIZ.  C. 2, FOR EXAMPLE, WAS AIMED AT "SUNDRY WICKED AND
SEDITIOUS PERSONS, WHO TERMING THEMSELVES CATHOLICKS, AND BEING INDEED
SPIES AND INTELLIGENCERS,  ...  AND HIDING THEIR MOST DETESTABLE AND
DEVILISH PURPOSES UNDER A FALSE PRETEXT OF RELIGION AND CONSCIENCE, DO
SECRETLY WANDER AND SHIFT FROM PLACE TO PLACE WITHIN THIS REALM, TO
CORRUPT AND SEDUCE HER MAJESTY'S SUBJECTS, AND TO STIR THEM TO SEDITION
AND REBELLION."    FN8  AS IS EVIDENCED BY THE STATUTE QUOTED IN NOTE 7
SUPRA, THE TEST OATHS, THE DRASTIC RESTRICTIONS AND THE PUNISHMENT
IMPOSED ON CATHOLICS WERE "BASED ON THE ASSUMPTION THAT ALL CATHOLICS
WERE POLITICALLY HOSTILE TO THE QUEEN, AND WERE AT ONE WITH ALLEN AND
THE JESUITS IN SEEKING HER DEPOSITION AND THE CONQUEST OF THE COUNTRY
BY SPAIN.  THE PATRIOTIC ACTION OF THE CATHOLICS AT HOME THROUGH THE
CRISIS OF THE SPANISH ARMADA PROVED THE WEAKNESS OF THIS ASSUMPTION. 
IN THE HOUR OF PERIL THE ENGLISH CATHOLICS PLACED LOYALTY TO THEIR
QUEEN AND COUNTRY BEFORE ALL OTHER CONSIDERATIONS.  ...  THE INJUSTICE
OF IMPUTING TREACHERY TO THE WHOLE CATHOLIC POPULATION WAS PROVED
BEYOND QUESTION."  3 CAMBRIDGE MODERN HISTORY 351. 

FN9  CASTIGATING JEFFERSON AND HIS FOLLOWERS AS "JACOBINS," A "FRENCH
FACTION" GUILTY OF "SUBVERSION," FISHER AMES WARNED:  "(THE) JACOBINS
HAVE AT LAST MADE THEIR OWN DISCIPLINE PERFECT: THEY ARE TRAINED,
OFFICERED, REGIMENTED AND FORMED TO SUBORDINATION, IN A MANNER THAT OUR
MILITIA HAVE NEVER YET EQUALLED.  ...  (AND) IT IS AS CERTAIN AS ANY
FUTURE EVENT CAN BE, THAT THEY WILL TAKE ARMS AGAINST THE LAWS AS SOON
AS THEY DARE  ...  "  AMES, LAOCOON, PRINTED IN WORKS OF FISHER AMES
94, 101, 106(BOSTON, 1809). 

FN10  AND SEE, E.G., JOHN LORD O'BRIAN, LOYALTY TESTS AND GUILT BY
ASSOCIATION, 61 HARV. L. REV. 592.  THAT ARTICLE QUOTES THE FOLLOWING
FROM A MEMORIAL SUBMITTED TO THE NEW YORK ASSEMBLY BY A SPECIAL
COMMITTEE OF THE BAR ASSOCIATION OF THE CITY OF NEW YORK PROTESTING THE
SUSPENSION OF FIVE SOCIALIST LEGISLATORS:  "IT IS OF THE ESSENCE OF THE
INSTITUTIONS OF LIBERTY THAT IT BE RECOGNIZED THAT GUILT IS PERSONAL
AND CANNOT BE ATTRIBUTED TO THE HOLDING OF OPINION OR TO MERE INTENT IN
THE ABSENCE OF OVERT ACTS  ...  "  O'BRIAN POINTS OUT THAT THIS
MEMORIAL WAS "LARGELY WRITTEN BY" CHARLES EVANS HUGHES.  ID. AT 594. 

FN11  "IF THERE BE ANY AMONG US WHO WOULD WISH TO DISSOLVE THIS UNION
OR TO CHANGE ITS REPUBLICAN FORM, LET THEM STAND UNDISTURBED AS
MONUMENTS OF THE SAFETY WITH WHICH ERROR OF OPINION MAY BE TOLERATED
WHERE REASON IS LEFT FREE TO COMBAT IT.  I KNOW, INDEED, THAT SOME
HONEST MEN FEAR THAT A REPUBLICAN GOVERNMENT CANNOT BE STRONG; THAT
THIS GOVERNMENT IS NOT STRONG ENOUGH.  BUT WOULD THE HONEST PATRIOT, IN
THE FULL TIDE OF SUCCESSFUL EXPERIMENT, ABANDON A GOVERNMENT WHICH HAS
SO FAR KEPT US FREE AND FIRM, ON THE THEORETIC AND VISIONARY FEAR THAT
THIS GOVERNMENT, THE WORLD'S BEST HOPE, MAY BY POSSIBILITY WANT ENERGY
TO PRESERVE ITSELF?"  THOMAS JEFFERSON, FIRST INAUGURAL ADDRESS, MARCH
4, 1801.  THIS ADDRESS, ALONG WITH OTHER WRITINGS ON FREEDOMS
GUARANTEED BY THE FIRST AMENDMENT, IS REPRINTED IN JONES, PRIMER OF
INTELLECTUAL FREEDOM 142(HARVARD UNIVERSITY PRESS, 1949). 

FN12  FOR DISCUSSION OF EARLY AMERICAN MODELS, THE ALIEN AND SEDITION
ACTS, SEE BOWERS, JEFFERSON AND HAMILTON, 1925, C. XVI, "HYSTERICS,"
AND C. XVII, "THE REIGN OF TERROR"; 1 MORISON, LIFE OF OTIS, C. VIII,
"A SYSTEM OF TERROR." 
..END :










AUTOMOBILE WORKERS V. O'BRIEN, 339 U.S. 454 


NO. 456.  ARGUED MARCH 30, 1950.  - DECIDED MAY 8, 1950.  - 325 MICH.
250, 38 N.W.2D 421, REVERSED. 


THE STRIKE-VOTE PROVISIONS OF THE MICHIGAN LABOR MEDIATION LAW, MICH.
COMP. LAWS, 1948, SECS. 423.1 ET SEQ., WHICH PROHIBIT THE CALLING OF A
STRIKE UNLESS A STATE-PRESCRIBED PROCEDURE FOR MEDIATION IS FOLLOWED
AND UNLESS A MAJORITY OF THE EMPLOYEES IN A STATE-DEFINED BARGAINING
UNIT AUTHORIZES THE STRIKE IN A STATE-CONDUCTED ELECTION, CONFLICT WITH
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT
RELATIONS ACT, 1947, AND ARE INVALID UNDER THE COMMERCE CLAUSE OF THE
FEDERAL CONSTITUTION.  PP. 455-459. 

INTERNATIONAL UNION OF UNITED AUTOMOBILE, ETC. WORKERS OF AMERICA,
C.I.O., ET AL. V. O'BRIEN, PROSECUTING ATTORNEY, ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

IN A SUIT BY APPELLANTS TO ENJOIN POSSIBLE CRIMINAL PROSECUTION FOR A
VIOLATION OF MICH. COMP. LAWS, 1948, SECS. 423.1 ET SEQ., A MICHIGAN
TRIAL COURT HELD THOSE SECTIONS INVALID UNDER THE FEDERAL
CONSTITUTION.  THE SUPREME COURT OF MICHIGAN REVERSED.  325 MICH. 250,
38 N.W.2D 421.  ON APPEAL TO THIS COURT, REVERSED, P. 459. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE CONSTITUTIONALITY OF THE STRIKE VOTE PROVISION OF THE MICHIGAN
LABOR MEDIATION LAW  FN1  IS BEFORE US IN THIS CASE.  APPELLANTS STRUCK
AGAINST CHRYSLER CORPORATION IN MAY, 1948, WITHOUT CONFORMING TO THE
PRESCRIBED STATE PROCEDURE.  THE STRIKE WAS CALLED TO ENFORCE DEMANDS
FOR HIGHER WAGES, AND IT WAS CONDUCTED PEACEFULLY.  TO ENJOIN POSSIBLE
CRIMINAL PROSECUTION,  FN2  APPELLANTS INSTITUTED THIS SUIT IN THE
STATE COURTS, CONTENDING THAT THE STATUTE VIOLATED THE DUE PROCESS AND
COMMERCE CLAUSES OF THE FEDERAL CONSTITUTION.  THE TRIAL COURT UPHELD
THEIR CONTENTIONS BUT THE MICHIGAN SUPREME COURT REVERSED.  325 MICH.
250, 38 N.W.2D 421(1949).  WE FIND NO NEED TO DISCUSS THE DUE PROCESS
POINT, INASMUCH AS WE HOLD THAT THE COURT BELOW ERRED IN ITS DECISION
ON THE COMMERCE POWER. 

CONGRESS HAS NOT BEEN SILENT ON THE SUBJECT OF STRIKES IN INTERSTATE
COMMERCE.  IN THE NATIONAL LABOR RELATIONS ACT OF 1935, 49 STAT. 449,
29 U.S.C. SEC. 151, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT,
1947, 61 STAT. 136, 29 U.S.C. (SUPP. III) SEC. 141, CONGRESS
SAFEGUARDED THE EXERCISE BY EMPLOYEES OF "CONCERTED ACTIVITIES" AND
EXPRESSLY RECOGNIZED THE RIGHT TO STRIKE.  FN3 IT QUALIFIED AND
REGULATED THAT RIGHT IN THE 1947 ACT.  IT ESTABLISHED CERTAIN
PREREQUISITES, WITH WHICH APPELLANTS COMPLIED, FOR ANY STRIKE OVER
CONTRACT TERMINATION OR MODIFICATION.  SEC. 8(D).  THESE INCLUDE
NOTICES TO BOTH STATE AND FEDERAL  FN4  MEDIATION AUTHORITIES; BOTH DID
PARTICIPATE IN THE NEGOTIATIONS IN THIS CASE.  IN PROVISIONS WHICH DID
NOT AFFECT APPELLANTS, CONGRESS FORBADE STRIKES FOR CERTAIN OBJECTIVES
AND DETAILED PROCEDURES FOR STRIKES WHICH MIGHT CREATE A NATIONAL
EMERGENCY.  SECS. 8(B)(4), 206-210.  NONE OF THESE SECTIONS CAN BE READ
AS PERMITTING CONCURRENT STATE REGULATION OF PEACEFUL STRIKES FOR
HIGHER WAGES.  CONGRESS OCCUPIED THIS FIELD AND CLOSED IT TO STATE
REGULATION.  PLANKINTON PACKING CO. V. WISCONSIN BOARD, 338 U.S.
953(1950); LA CROSSE TELEPHONE CORP. V. WISCONSIN BOARD, 336 U.S.
18(1949); BETHLEHEM STEEL CO. V. NEW YORK LABOR BOARD, 330 U.S.
767(1947); HILL V. FLORIDA, 325 U.S. 538(1945). 

EVEN IF SOME STATE LEGISLATION IN THIS AREA COULD BE SUSTAINED, THE
PARTICULAR STATUTE BEFORE US COULD NOT STAND.  FOR IT CONFLICTS WITH
THE FEDERAL ACT.  THE MICHIGAN LAW CALLS FOR A NOTICE GIVEN "IN THE
EVENT THE PARTIES  ...  ARE UNABLE TO SETTLE ANY DISPUTE" TO BE
FOLLOWED BY MEDIATION, AND IF THAT IS UNSUCCESSFUL, BY A STRIKE VOTE
WITHIN TWENTY DAYS, WITH A MAJORITY REQUIRED TO AUTHORIZE A STRIKE. 
UNDER THE FEDERAL LEGISLATION, THE PRESCRIBED STRIKE NOTICE CAN BE
GIVEN SIXTY DAYS BEFORE THE CONTRACT TERMINATION OR MODIFICATION.  SEC.
8(D).  THE FEDERAL ACT THUS PERMITS STRIKES AT A DIFFERENT AND USUALLY
EARLIER TIME THAN THE MICHIGAN LAW; AND IT DOES NOT REQUIRE MAJORITY
AUTHORIZATION FOR ANY STRIKE.  THIS REQUIREMENT OF APPROVAL BY A
MAJORITY OF THE EMPLOYEES WAS CONTAINED IN THE BILL WHICH PASSED THE
HOUSE OF REPRESENTATIVES; FN5  BUT THE ACT AS FINALLY ADOPTED
DELIBERATELY REFRAINS FROM IMPOSING THE PREREQUISITE OF MAJORITY
APPROVAL IN EACH OF ITS REFERENCES TO STRIKE VOTES.  SECS. 203(C),
209(B)-210. 

FINALLY, THE BARGAINING UNIT ESTABLISHED IN ACCORDANCE WITH FEDERAL
LAW MAY BE INCONSISTENT WITH THAT REQUIRED BY STATE REGULATION.  THOUGH
THE UNIT FOR THE MICHIGAN STRIKE VOTE CANNOT EXTEND BEYOND THE STATE'S
BORDERS, THE UNIT FOR WHICH APPELLANT UNION IS THE FEDERALLY CERTIFIED
BARGAINING REPRESENTATIVE INCLUDES CHRYSLER PLANTS IN CALIFORNIA AND
INDIANA AS WELL AS MICHIGAN.  CHRYSLER CORP., 42 N.L.R.B. 1145(1942). 
WITHOUT QUESTION, THE MICHIGAN PROVISION CONFLICTS WITH THE EXERCISE OF
FEDERALLY PROTECTED LABOR RIGHTS.  A STATE STATUTE SO AT WAR WITH
FEDERAL LAW CANNOT SURVIVE.  PLANKINTON PACKING CO. V. WISCONSIN BOARD,
338 U.S. 953(1950); LA CROSSE TELEPHONE CORP. V. WISCONSIN BOARD, 336
U.S. 18(1949); BETHLEHEM STEEL CO. V. NEW YORK LABOR BOARD, 330 U.S.
767(1947); HILL V. FLORIDA, 325 U.S. 538(1945). 

AUTO. WORKERS V. WISCONSIN BOARD, 336 U.S. 245(1949), UPON WHICH
MICHIGAN PRINCIPALLY RELIES, WAS NOT CONCERNED WITH A TRADITIONAL,
PEACEFUL STRIKE FOR HIGHER WAGES.  THE EMPLOYEES' CONDUCT THERE WAS "A
NEW TECHNIQUE FOR BRINGING PRESSURE UPON THE EMPLOYER," A "RECURRENT OR
INTERMITTENT UNANNOUNCED STOPPAGE OF WORK TO WIN UNSTATED ENDS."  ID.
AT 249, 264.  THAT ACTIVITY WE REGARDED AS "COERCIVE," SIMILAR TO THE
SIT-DOWN STRIKE HELD TO FALL OUTSIDE THE PROTECTION OF THE FEDERAL ACT
IN LABOR BOARD V. FANSTEEL METALLURGICAL CORP., 306 U.S. 240(1939), AND
TO THE LABOR VIOLENCE HELD TO BE SUBJECT TO STATE POLICE CONTROL IN
ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740(1942).  IN THE
WISCONSIN AUTO.  WORKERS CASE, WE CONCLUDED THAT THE UNION TACTIC WAS
"NEITHER FORBIDDEN BY FEDERAL STATUTE NOR WAS IT LEGALIZED AND APPROVED
THEREBY."  336 U.S. AT 265.  "THERE IS NO EXISTING OR POSSIBLE CONFLICT
OR OVERLAPPING BETWEEN THE AUTHORITY OF THE FEDERAL AND STATE BOARDS,
BECAUSE THE FEDERAL BOARD HAS NO AUTHORITY EITHER TO INVESTIGATE,
APPROVE OR FORBID THE UNION CONDUCT IN QUESTION.  THIS CONDUCT IS
GOVERNABLE BY THE STATE OR IT IS ENTIRELY UNGOVERNED."  ID. AT 254. 
CLEARLY, WE REAFFIRMED THE PRINCIPLE THAT IF "CONGRESS HAS PROTECTED
THE UNION CONDUCT WHICH THE STATE HAS FORBIDDEN  ...  THE STATE
LEGISLATION MUST YIELD."  ID. AT 252.  THAT PRINCIPLE IS CONTROLLING
HERE.  REVERSED. 

FN1  MICH. STAT. ANN. (CUM. SUPP. 1949) SECS. 17.454(1) ET SEQ.;
MICH. COMP. LAWS, 1948, SECS. 423.1 ET SEQ. AT THE TIME OF APPELLANTS'
STRIKE, THE PERTINENT PROVISIONS OF THE LAW READ AS FOLLOWS: 

"SEC. 9.  NO STRIKE OR LOCKOUT SHALL TAKE PLACE OR BE PUT INTO EFFECT
UNTIL AND UNLESS EACH OF THE STEPS HAVE BEEN TAKEN AND THE REQUIREMENTS
COMPLIED WITH AS PROVIDED IN THIS ACT. 

"1.  IN THE EVENT THE PARTIES THERETO ARE UNABLE TO SETTLE ANY
DISPUTE, THE EMPLOYEES OR THEIR REPRESENTATIVE, IN THE CASE OF
IMPENDING STRIKE, OR THE EMPLOYER OR HIS AGENT, IN THE CASE OF AN
IMPENDING LOCKOUT, SHALL SERVE NOTICE UPON THE BOARD OF SUCH DISPUTE
TOGETHER WITH A STATEMENT OF THE ISSUES INVOLVED.  ...  NOT LESS THAN
10 DAYS BEFORE THE STRIKE OR LOCKOUT IS TO BECOME EFFECTIVE, OR IN CASE
OF AN INDUSTRY AFFECTED WITH A PUBLIC INTEREST OR A PUBLIC UTILITY OR
HOSPITAL, SAID NOTICE SHALL BE SO SERVED NOT LESS THAN 30 DAYS BEFORE
THE STRIKE OR LOCKOUT IS TO BECOME EFFECTIVE. 

"2.  UPON RECEIPT OF SUCH NOTICE IT SHALL BE THE DUTY OF THE BOARD TO
EXERCISE THE POWERS HEREIN GRANTED TO EFFECT A SETTLEMENT OF SUCH
DISPUTE BY MEDIATION BETWEEN THE PARTIES.  PRIOR TO THE CALLING OF AN
ELECTION AS PROVIDED HEREINAFTER, IT SHALL BE THE DUTY OF EACH OF THE
PARTIES TO SUCH DISPUTE TO ACTIVELY AND IN GOOD FAITH PARTICIPATE IN
THE MEDIATION THEREOF.  ... 

"SEC. 9A.  IN THE EVENT THAT IT BECOMES APPARENT TO THE BOARD THAT
THERE IS NO REASONABLE PROBABILITY OF SETTLEMENT OF SUCH DISPUTE BY
MEDIATION AND THAT FURTHER EFFORTS TO THAT END WOULD BE WITHOUT AVAIL,
THERE SHALL BE HELD IN THE CASE OF ANY IMPENDING STRIKE, AN ELECTION
UPON SUCH ISSUE WHICH ELECTION SHALL BE CONDUCTED AND SUPERVISED BY THE
BOARD.  IN THE EVENT EITHER PARTY TO SAID DISPUTE NOTIFIES THE BOARD IN
WRITING  ...  THAT IN THE OPINION OF SUCH PARTY, FURTHER EFFORTS TO
SETTLE SUCH DISPUTE BY MEDIATION WOULD BE WITHOUT AVAIL, IT SHALL BE
THE DUTY OF THE BOARD TO CAUSE AN ELECTION TO BE HELD WITHIN 10 DAYS OF
THE RECEIPT OF SUCH NOTICE UNLESS IT IS NOT PRACTICAL TO HOLD SUCH
ELECTION WITHIN SAID PERIOD, IN WHICH EVENT SAID ELECTION SHALL BE HELD
WITHIN 20 DAYS OF RECEIPT OF SUCH NOTICE  ...  EVERY EMPLOYEE IN THE
BARGAINING UNIT SHALL BE ENTITLED TO VOTE IN SUCH ELECTION AND IN ORDER
TO AUTHORIZE A STRIKE UNDER THE PROVISIONS OF THIS ACT, A MAJORITY OF
ALL EMPLOYEES IN SUCH BARGAINING UNIT MUST VOTE IN FAVOR OF SUCH
ACTION." 

IN 1949, THE LAST REQUIREMENT WAS AMENDED TO READ, "A MAJORITY OF ALL
EMPLOYEES CASTING VALID BALLOTS MUST VOTE IN FAVOR OF SUCH ACTION." 
THIS CHANGE IS NOT MATERIAL TO OUR DECISION. 

FN2  THE COURT BELOW HELD THAT APPELLANTS' ACTS "RENDERED (THEM)
SUBJECT TO THREATENED CRIMINAL PROSECUTION  ...  "  325 MICH. AT 254,
38 N.W.2D AT 422.  SEE SEC. 22.  WE ARE OF COURSE BOUND BY THIS
INTERPRETATION OF THE STATE LAW. 

FN3  SEE SECS. 7, 2(3), 13 OF BOTH ACTS; H.R. REP. NO. 510, 80TH
CONG., 1ST SESS. 59(1947); S. REP. NO. 105, 80TH CONG., 1ST SESS.
28(1947); STATEMENT OF SENATOR TAFT, 93 CONG. REC. 3835(1947), WHICH
INCLUDES THE FOLLOWING:  "THAT MEANS THAT WE RECOGNIZE FREEDOM TO
STRIKE WHEN THE QUESTION INVOLVED IS THE IMPROVEMENT OF WAGES, HOURS,
AND WORKING CONDITIONS, WHEN A CONTRACT HAS EXPIRED AND NEITHER SIDE IS
BOUND BY A CONTRACT.  ...  WE HAVE CONSIDERED THE QUESTION WHETHER THE
RIGHT TO STRIKE CAN BE MODIFIED.  I THINK IT CAN BE MODIFIED IN CASES
WHICH DO NOT INVOLVE THE BASIC QUESTION OF WAGES, PRICES, AND WORKING
CONDITIONS.  ...  SO FAR AS THE BILL IS CONCERNED, WE HAVE PROCEEDED ON
THE THEORY THAT THERE IS A RIGHT TO STRIKE AND THAT LABOR PEACE MUST BE
BASED ON FREE COLLECTIVE BARGAINING.  WE HAVE DONE NOTHING TO OUTLAW
STRIKES FOR BASIC WAGES, HOURS, AND WORKING CONDITIONS AFTER PROPER
OPPORTUNITY FOR MEDIATION." 

FN4  CONGRESS CREATED A NEW FEDERAL AGENCY, THE FEDERAL MEDIATION AND
CONCILIATION SERVICE, TO ASSIST IN THE PEACEFUL SETTLEMENT OF
DISPUTES.  SECS. 202-204. 

FN5  H.R. 3020, 80TH CONG., 1ST SESS. SEC. 2(11)(B)(VI)(H)(1947). 
THE LEGISLATIVE HISTORY DEMONSTRATES THAT THIS PROPOSAL WAS REJECTED ON
THE MERITS, AND NOT BECAUSE OF ANY DESIRE TO LEAVE THE STATES FREE TO
ADOPT IT.  SEE, E.G., H.R. REP. NO. 510, 80TH CONG., 1ST SESS. 34
35(1947); TESTIMONY OF GOVERNOR STASSEN, HEARINGS BEFORE SENATE
COMMITTEE ON LABOR AND PUBLIC WELFARE ON S. 55 AND S.J. RES. 22, 80TH
CONG., 1ST SESS. 562-65, 572-78, 586-89(1947). 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 
..END :













HUGHES V. SUPERIOR COURT, 339 U.S. 460 


NO. 61.  ARGUED NOVEMBER 8-9, 1949.  - DECIDED MAY 8, 1950.  - 32 CAL.2D
850, 198 P.2D 885, AFFIRMED. 


PETITIONERS DEMANDED OF AN EMPLOYER THAT IT HIRE NEGROES AT ONE OF ITS
GROCERY STORES, AS WHITE CLERKS QUIT OR WERE TRANSFERRED, UNTIL THE
PROPORTION OF NEGRO CLERKS TO WHITE CLERKS APPROXIMATED THE PROPORTION
OF NEGRO TO WHITE CUSTOMERS, WHICH WAS THEN ABOUT 50%.  A CALIFORNIA
STATE COURT ENJOINED PETITIONERS FROM PICKETING THE EMPLOYER'S STORES
TO ENFORCE THIS SPECIFIC DEMAND FOR SELECTIVE HIRING ON A RACIAL
BASIS.  FOR VIOLATION OF THE INJUNCTION, PETITIONERS WERE FOUND GUILTY
OF CONTEMPT AND WERE SENTENCED TO FINE AND IMPRISONMENT.  THE POLICY OF
CALIFORNIA IS AGAINST DISCRIMINATION ON THE BASIS OF COLOR.  HELD:  THE
INJUNCTION DID NOT VIOLATE PETITIONERS' RIGHT OF FREEDOM OF SPEECH AS
GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP.
461-469. 

1.  THE CONSTITUTION DOES NOT DEMAND THAT THE ELEMENT OF
COMMUNICATION IN PICKETING PREVAIL OVER THE MISCHIEF FURTHERED BY ITS
USE TO COMPEL EMPLOYMENT ON THE BASIS OF RACIAL DISCRIMINATION CONTRARY
TO THE STATE'S POLICY.  PP. 463-464. 

2.  INDUSTRIAL PICKETING IS SOMETHING MORE THAN FREE SPEECH, SINCE IT
INVOLVES PATROL OF A PARTICULAR LOCALITY AND SINCE THE VERY PRESENCE OF
A PICKET LINE MAY INDUCE ACTION OF ONE KIND OR ANOTHER, QUITE
IRRESPECTIVE OF THE NATURE OF THE IDEAS WHICH ARE BEING DISSEMINATED. 
PP. 464-465. 

3.  THE DUE PROCESS CLAUSE CANNOT BE CONSTRUED AS PRECLUDING
CALIFORNIA FROM SECURING RESPECT FOR ITS POLICY AGAINST INVOLUNTARY
EMPLOYMENT ON RACIAL LINES BY PROHIBITING SYSTEMATIC PICKETING THAT
WOULD SUBVERT SUCH POLICY.  PP. 465-466. 

4.  THE FACT THAT THE POLICY OF THE STATE IS EXPRESSED BY ITS COURTS
RATHER THAN BY ITS LEGISLATURE IS IMMATERIAL SO FAR AS THE FOURTEENTH
AMENDMENT IS CONCERNED.  PP. 466-469. 

5.  A STATE MAY DIRECT ITS LAW AGAINST WHAT IT DEEMS THE EVIL AS IT
ACTUALLY EXISTS WITHOUT COVERING THE WHOLE FIELD OF POSSIBLE ABUSES,
AND IT MAY DO SO THOUGH THE FORBIDDEN ACT DOES NOT DIFFER IN KIND FROM
THOSE THAT ARE ALLOWED.  P. 468. 

HUGHES ET AL. V. SUPERIOR COURT OF CALIFORNIA FOR CONTRA COSTA
COUNTY. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

THE CASE IS STATED IN THE FIRST THREE PARAGRAPHS OF THE OPINION.  THE
JUDGMENT BELOW IS AFFIRMED, P. 469. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

DOES THE FOURTEENTH AMENDMENT OF THE CONSTITUTION BAR A STATE FROM
USE OF THE INJUNCTION TO PROHIBIT PICKETING OF A PLACE OF BUSINESS
SOLELY IN ORDER TO SECURE COMPLIANCE WITH A DEMAND THAT ITS EMPLOYEES
BE IN PROPORTION TO THE RACIAL ORIGIN OF ITS THEN CUSTOMERS?  SUCH IS
THE BROAD QUESTION OF THIS CASE. 

THE PETITIONERS, ACTING ON BEHALF OF A GROUP CALLING THEMSELVES
PROGRESSIVE CITIZENS OF AMERICA, DEMANDED OF LUCKY STORES, INC., THAT
IT HIRE NEGROES AT ITS GROCERY STORE NEAR THE CANAL HOUSING PROJECT IN
RICHMOND, CALIFORNIA, AS WHITE CLERKS QUIT OR WERE TRANSFERRED, UNTIL
THE PROPORTION OF NEGRO CLERKS TO WHITE CLERKS APPROXIMATED THE
PROPORTION OF NEGRO TO WHITE CUSTOMERS.  AT THE TIME IN CONTROVERSY
ABOUT 50% OF THE CUSTOMERS OF THE CANAL STORE WERE NEGROES.  UPON
REFUSAL OF THIS DEMAND AND IN ORDER TO COMPEL COMPLIANCE, THE CANAL
STORE WAS SYSTEMATICALLY PATROLLED BY PICKETS CARRYING PLACARDS STATING
THAT LUCKY REFUSED TO HIRE NEGRO CLERKS IN PROPORTION TO NEGRO
CUSTOMERS. 

SUIT WAS BEGUN BY LUCKY TO ENJOIN THE PICKETING ON APPROPRIATE
ALLEGATIONS FOR EQUITABLE RELIEF.  THE SUPERIOR COURT OF CONTRA COSTA
COUNTY ISSUED A PRELIMINARY INJUNCTION RESTRAINING PETITIONERS AND
OTHERS FROM PICKETING ANY OF LUCKY'S STORES TO COMPEL "THE SELECTIVE
HIRING OF NEGRO CLERKS, SUCH HIRING TO BE BASED ON THE PROPORTION OF
WHITE AND NEGRO CUSTOMERS WHO PATRONIZE PLAINTIFF'S STORES."  IN THE
FACE OF THIS INJUNCTION, PETITIONERS CONTINUED TO PICKET THE CANAL
STORE, CARRYING PLACARDS READING:  "LUCKY WON'T HIRE NEGRO CLERKS IN
PROPORTION TO NEGRO TRADE - DON'T PATRONIZE."  IN CONFORMITY WITH STATE
PROCEDURE, PETITIONERS WERE FOUND GUILTY OF CONTEMPT FOR "WILFULLY
DISREGARDING" THE INJUNCTION AND WERE SENTENCED TO IMPRISONMENT FOR TWO
DAYS AND FINED $20 EACH.  THEY DEFENDED THEIR CONDUCT BY CHALLENGING
THE INJUNCTION AS A DEPRIVATION OF THE LIBERTY ASSURED THEM BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE INTERMEDIATE APPELLATE
COURT ANNULLED THE JUDGMENT OF CONTEMPT, 186 P.2D 756, BUT IT WAS
REINSTATED ON REVIEW BY THE SUPREME COURT OF CALIFORNIA.  THAT COURT
HELD THAT THE CONCEDED PURPOSE OF THE PICKETING IN THIS CASE - TO
COMPEL THE HIRING OF NEGROES IN PROPORTION TO NEGRO CUSTOMERS - WAS
UNLAWFUL EVEN THOUGH PURSUED IN A PEACEFUL MANNER.  HAVING VIOLATED A
VALID INJUNCTION PETITIONERS WERE PROPERLY PUNISHABLE FOR CONTEMPT. 
"THE CONTROLLING POINTS," ACCORDING TO THE DECISION OF THE SUPREME
COURT OF CALIFORNIA, "ARE THAT THE INJUNCTION IS LIMITED TO PROHIBITING
PICKETING FOR A SPECIFIC UNLAWFUL PURPOSE AND THAT THE EVIDENCE
JUSTIFIED THE TRIAL COURT IN FINDING THAT SUCH NARROW PROHIBITION WAS
DELIBERATELY VIOLATED."  32 CAL.2D 850, 856, 198 P.2D 885, 888.  WE
BROUGHT THE CASE HERE TO CONSIDER CLAIMS OF INFRINGEMENT OF THE RIGHT
OF FREEDOM OF SPEECH AS GUARANTEED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  336 U.S. 966. 

FIRST.  DISCRIMINATION AGAINST NEGROES IN EMPLOYMENT HAS BROUGHT A
VARIETY OF LEGAL ISSUES BEFORE THIS COURT IN RECENT YEARS.  GRAHAM V.
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, 338 U.S. 232; RAILWAY
MAIL ASSN. V. CORSI, 326 U.S. 88; STEELE V. LOUISVILLE & N.R. CO., 323
U.S. 192; TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN,
323 U.S. 210; NEW NEGRO ALLIANCE V. SANITARY GROCERY CO., 303 U.S.
552.  SEE ALSO MYRDAL, AN AMERICAN DILEMMA CC. 13-14(1944).  SUCH
DISCRIMINATION RAISES SOCIOLOGICAL PROBLEMS WHICH IN SOME ASPECTS AND
WITHIN LIMITS HAVE RECEIVED LEGAL SOLUTIONS.  CALIFORNIA HAS BEEN
SENSITIVE TO THESE PROBLEMS AND DECISIONS OF ITS SUPREME COURT HAVE
BEEN HOSTILE TO DISCRIMINATION ON THE BASIS OF COLOR.  JAMES V.
MARINSHIP CORP., 25 CAL.2D 721, 155 P.2D 329; WILLIAMS V. INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS, 27 CAL.2D 586, 165 P.2D 903.  THIS
BACKGROUND OF CALIFORNIA'S LEGAL POLICY IS RELEVANT TO THE CONVICTION
OF ITS COURT THAT IT WOULD ENCOURAGE DISCRIMINATORY HIRING TO GIVE
CONSTITUTIONAL PROTECTION TO PETITIONERS' EFFORTS TO SUBJECT THE
OPPORTUNITY OF GETTING A JOB TO A QUOTA SYSTEM.  THE VIEW OF THAT COURT
IS BEST EXPRESSED IN ITS OWN WORDS: 

"IT WAS JUST SUCH A SITUATION - AN ARBITRARY DISCRIMINATION UPON THE
BASIS OF RACE AND COLOR ALONE, RATHER THAN A CHOICE BASED SOLELY UPON
INDIVIDUAL QUALIFICATION FOR THE WORK TO BE DONE - WHICH WE CONDEMNED
IN THE MARINSHIP CASE, SUPRA (25 CAL.2D 721, 737, 745).  THE FACT THAT
THOSE SEEKING SUCH DISCRIMINATION DO NOT DEMAND THAT IT BE PRACTICED AS
TO ALL EMPLOYES OF A PARTICULAR EMPLOYER DIMINISHES IN NO RESPECT THE
UNLAWFULNESS OF THEIR PURPOSE; THEY WOULD, TO THE EXTENT OF THE FIXED
PROPORTION, MAKE THE RIGHT TO WORK FOR LUCKY DEPENDENT NOT ON FITNESS
FOR THE WORK NOR ON AN EQUAL RIGHT OF ALL, REGARDLESS OF RACE, TO
COMPETE IN AN OPEN MARKET, BUT, RATHER, ON MEMBERSHIP IN A PARTICULAR
RACE.  IF PETITIONERS WERE UPHELD IN THEIR DEMAND THEN OTHER RACES,
WHITE, YELLOW, BROWN AND RED, WOULD HAVE EQUAL RIGHTS TO DEMAND
DISCRIMINATORY HIRING ON A RACIAL BASIS.  YET THAT IS PRECISELY THE
TYPE OF DISCRIMINATION TO WHICH PETITIONERS AVOWEDLY OBJECT."  32
CAL.2D AT 856, 198 P.2D AT 889. 

THESE CONSIDERATIONS ARE MOST PERTINENT IN REGARD TO A POPULATION
MADE UP OF SO MANY DIVERSE GROUPS AS OURS.  TO DENY TO CALIFORNIA THE
RIGHT TO BAN PICKETING IN THE CIRCUMSTANCES OF THIS CASE WOULD MEAN
THAT THERE COULD BE NO PROHIBITION OF THE PRESSURE OF PICKETING TO
SECURE PROPORTIONAL EMPLOYMENT ON ANCESTRAL GROUNDS OF HUNGARIANS IN
CLEVELAND, OF POLES IN BUFFALO, OF GERMANS IN MILWAUKEE, OF PORTUGUESE
IN NEW BEDFORD, OF MEXICANS IN SAN ANTONIO, OF THE NUMEROUS MINORITY
GROUPS IN NEW YORK, AND SO ON THROUGH THE WHOLE GAMUT OF RACIAL AND
RELIGIOUS CONCENTRATIONS IN VARIOUS CITIES.  STATES MAY WELL BELIEVE
THAT SUCH CONSTITUTIONAL SHELTERING WOULD INEVITABLY ENCOURAGE USE OF
PICKETING TO COMPEL EMPLOYMENT ON THE BASIS OF RACIAL DISCRIMINATION. 
IN DISALLOWING SUCH PICKETING STATES MAY ACT UNDER THE BELIEF THAT
OTHERWISE COMMUNITY TENSIONS AND CONFLICTS WOULD BE EXACERBATED.  THE
DIFFERENCES IN CULTURAL TRADITIONS INSTEAD OF ADDING FLAVOR AND VARIETY
TO OUR COMMON CITIZENRY MIGHT WELL BE HARDENED INTO HOSTILITIES BY
LEAVE OF LAW.  THE CONSTITUTION DOES NOT DEMAND THAT THE ELEMENT OF
COMMUNICATION IN PICKETING PREVAIL OVER THE MISCHIEF FURTHERED BY ITS
USE IN THESE SITUATIONS. 

SECOND.  "(THE) DOMAIN OF LIBERTY, WITHDRAWN BY THE FOURTEENTH
AMENDMENT FROM ENCROACHMENT BY THE STATES," PALKO V. CONNECTICUT, 302
U.S. 319, 327, NO DOUBT INCLUDES LIBERTY OF THOUGHT AND APPROPRIATE
MEANS FOR EXPRESSING IT.  BUT WHILE PICKETING IS A MODE OF
COMMUNICATION IT IS INSEPARABLY SOMETHING MORE AND DIFFERENT. 
INDUSTRIAL PICKETING "IS MORE THAN FREE SPEECH, SINCE IT INVOLVES
PATROL OF A PARTICULAR LOCALITY AND SINCE THE VERY PRESENCE OF A PICKET
LINE MAY INDUCE ACTION OF ONE KIND OR ANOTHER, QUITE IRRESPECTIVE OF
THE NATURE OF THE IDEAS WHICH ARE BEING DISSEMINATED."  MR. JUSTICE
DOUGLAS, JOINED BY BLACK AND MURPHY, JJ., CONCURRING IN BAKERY & PASTRY
DRIVERS & HELPERS LOCAL V. WOHL, 315 U.S. 769, 775, 776.  PUBLICATION
IN A NEWSPAPER, OR BY DISTRIBUTION OF CIRCULARS, MAY CONVEY THE SAME
INFORMATION OR MAKE THE SAME CHARGE AS DO THOSE PATROLLING A PICKET
LINE.  BUT THE VERY PURPOSE OF A PICKET LINE IS TO EXERT INFLUENCES,
AND IT PRODUCES CONSEQUENCES, DIFFERENT FROM OTHER MODES OF
COMMUNICATION.  THE LOYALTIES AND RESPONSES EVOKED AND EXACTED BY
PICKET LINES ARE UNLIKE THOSE FLOWING FROM APPEALS BY PRINTED WORD. 
SEE GREGORY, LABOR AND THE LAW 346-48(REV.  ED. 1949); TELLER,
PICKETING AND FREE SPEECH, 56 HARV. L. REV. 180, 200-02(1942); DODD,
PICKETING AND FREE SPEECH:  A DISSENT, 56 HARV. L. REV. 513, 517(1943);
HELLERSTEIN, PICKETING LEGISLATION AND THE COURTS, 10 N.C.L. REV. 158,
186-87, N. 135(1932). 

THIRD.  A STATE MAY CONSTITUTIONALLY PERMIT PICKETING DESPITE THE
INGREDIENTS IN IT THAT DIFFERENTIATE IT FROM SPEECH IN ITS ORDINARY
CONTEXT.  SENN V. TILE LAYERS PROTECTIVE UNION, 301 U.S. 468.  AND WE
HAVE FOUND THAT BECAUSE OF ITS ELEMENT OF COMMUNICATION PICKETING UNDER
SOME CIRCUMSTANCES FINDS SANCTION IN THE FOURTEENTH AMENDMENT. 
THORNHILL V. ALABAMA, 310 U.S. 88; AMERICAN FEDERATION OF LABOR V.
SWING, 312 U.S. 321; BAKERY & PASTRY DRIVERS & HELPERS LOCAL V. WOHL,
315 U.S. 769; CAFETERIA EMPLOYEES UNION V. ANGELOS, 320 U.S. 293. 
HOWEVER GENERAL OR LOOSE THE LANGUAGE OF OPINIONS, THE SPECIFIC
SITUATIONS HAVE CONTROLLED DECISION.  IT HAS BEEN AMPLY RECOGNIZED THAT
PICKETING, NOT BEING THE EQUIVALENT OF SPEECH AS A MATTER OF FACT, IS
NOT ITS INEVITABLE LEGAL EQUIVALENT.  PICKETING IS NOT BEYOND THE
CONTROL OF A STATE IF THE MANNER IN WHICH PICKETING IS CONDUCTED OR THE
PURPOSE WHICH IT SEEKS TO EFFECTUATE GIVES GROUND FOR ITS
DISALLOWANCE.  SEE DORCHY V. KANSAS, 272 U.S. 306; MILK WAGON DRIVERS
UNION V. MEADOWMOOR DAIRIES, INC., 312 U.S. 287; HOTEL AND RESTAURANT
EMPLOYEES' INTERNATIONAL ALLIANCE V. WISCONSIN E.R.B., 315 U.S. 437;
CARPENTERS & JOINERS UNION V. RITTER'S CAFE, 315 U.S. 722; GIBONEY V.
EMPIRE STORAGE & ICE CO., 336 U.S. 490.  "A STATE IS NOT REQUIRED TO
TOLERATE IN ALL PLACES AND ALL CIRCUMSTANCES EVEN PEACEFUL PICKETING BY
AN INDIVIDUAL."  BAKERY & PASTRY DRIVERS & HELPERS LOCAL V. WOHL, SUPRA
AT 775. 

THE CONSTITUTIONAL BOUNDARY LINE BETWEEN THE COMPETING INTERESTS OF
SOCIETY INVOLVED IN THE USE OF PICKETING CANNOT BE ESTABLISHED BY
GENERAL PHRASES.  PICKETING WHEN NOT IN NUMBERS THAT OF THEMSELVES
CARRY A THREAT OF VIOLENCE MAY BE A LAWFUL MEANS TO A LAWFUL END.  SEE
AMERICAN STEEL FOUNDRIES V. TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S.
184, 206-07.  THE CALIFORNIA SUPREME COURT SUGGESTED A DISTINCTION
BETWEEN PICKETING TO PROMOTE DISCRIMINATION, AS HERE, AND PICKETING
AGAINST DISCRIMINATION:  "IT MAY BE ASSUMED FOR THE PURPOSES OF THIS
DECISION, WITHOUT DECIDING, THAT IF SUCH DISCRIMINATION EXISTS,
PICKETING TO PROTEST IT WOULD NOT BE FOR AN UNLAWFUL OBJECTIVE."  32
CAL.2D AT 855, 198 P.2D AT 888.  WE CANNOT CONSTRUE THE DUE PROCESS
CLAUSES AS PRECLUDING CALIFORNIA FROM SECURING RESPECT FOR ITS POLICY
AGAINST INVOLUNTARY EMPLOYMENT ON RACIAL LINES BY PROHIBITING
SYSTEMATIC PICKETING THAT WOULD SUBVERT SUCH POLICY.  SEE GIBONEY V.
EMPIRE STORAGE & ICE CO., SUPRA. 

FOURTH.  THE FACT THAT CALIFORNIA'S POLICY IS EXPRESSED BY THE
JUDICIAL ORGAN OF THE STATE RATHER THAN BY THE LEGISLATURE WE HAVE
REPEATEDLY RULED TO BE IMMATERIAL* .  CASTILLO V. MCCONNICO, 168 U.S.
674, 684; HEBERT V. LOUISIANA, 272 U.S. 312, 316; NASHVILLE, C. & ST.
L.R. CO. V. BROWNING, 310 U.S. 362, 369; SKIRIOTES V. FLORIDA, 313 U.S.
69, 79; SNOWDEN V. HUGHES, 321 U.S. 1, 11.  FOR THE FOURTEENTH
AMENDMENT LEAVES THE STATES FREE TO DISTRIBUTE THE POWERS OF GOVERNMENT
AS THEY WILL BETWEEN THEIR LEGISLATIVE AND JUDICIAL BRANCHES.  DREYER
V. ILLINOIS, 187 U.S. 71, 83-84; SOLIAH V. HESKIN, 222 U.S. 522, 524;
ERIE R. CO. V. BOARD OF PUBLIC UTIL.  COMM'RS, 254 U.S. 394, 413;
PRENTIS V. ATLANTIC COAST LINE CO., 211 U.S. 210, 225; KELLER V.
POTOMAC ELEC.  POWER CO., 261 U.S. 428, 443.  "(RIGHTS) UNDER THAT
AMENDMENT TURN ON THE POWER OF THE STATE, NO MATTER BY WHAT ORGAN IT
ACTS."  MISSOURI V. DOCKERY, 191 U.S. 165, 170-71. 

*THE RANGE OF POLICY IN PROSCRIBING OR PERMITTING PICKETING FOR
VARIOUS ENDS IS ILLUSTRATED BY A RECENT BILL AGAINST PICKETING OF
COURTS PASSED BY THE NEW YORK STATE LEGISLATURE BUT VETOED BY GOVERNOR
DEWEY.  SEE N.Y. TIMES, APR. 11, 1950, P. 21, COL. 1. 

IT IS NOT FOR THIS COURT TO DENY TO A STATE THE RIGHT, OR EVEN TO
QUESTION THE DESIRABILITY, OF FITTING ITS LAW "TO A CONCRETE SITUATION
THROUGH THE AUTHORITY GIVEN  ...  TO ITS COURTS."  MILK WAGON DRIVERS
UNION V. MEADOWMOOR DAIRIES, INC., SUPRA AT 297.  IT IS PARTICULARLY
IMPORTANT TO BEAR THIS IN MIND IN REGARD TO MATTERS AFFECTING
INDUSTRIAL RELATIONS WHICH, UNTIL RECENTLY, HAVE "BEEN LEFT LARGELY TO
JUDICIAL LAWMAKING AND NOT TO LEGISLATION."  CARPENTERS & JOINERS UNION
V. RITTER'S CAFE, SUPRA AT 724.  IN CHARGING ITS COURTS WITH EVOLVING
LAW INSTEAD OF FORMULATING POLICY BY STATUTE, CALIFORNIA HAS AVAILED
ITSELF OF THE VARIETY OF LAW-MAKING SOURCES, AND HAS RECOGNIZED THAT IN
OUR DAY AS IN COKE'S "THE LAW HATH PROVIDED SEVERAL WEAPONS OF
REMEDY."  COKE, THE COMPLEAT COPYHOLDER SEC. 9 IN THREE LAW TRACTS
(1764).  CALIFORNIA CHOSE TO STRIKE AT THE DISCRIMINATION INHERENT IN
THE QUOTA SYSTEM BY MEANS OF THE EQUITABLE REMEDY OF INJUNCTION TO
PROTECT AGAINST UNWILLING SUBMISSION TO SUCH A SYSTEM.  IT IS NOT FOR
THIS COURT TO DENY TO CALIFORNIA THAT CHOICE FROM AMONG ALL "THE
VARIOUS WEAPONS IN THE ARMORY OF THE LAW."  TIGNER V. TEXAS, 310 U.S.
141, 148. 

THE POLICY OF A STATE MAY RELY FOR THE COMMON GOOD ON THE FREE PLAY
OF CONFLICTING INTERESTS AND LEAVE CONDUCT UNREGULATED.  CONTRARIWISE,
A STATE MAY DEEM IT WISER POLICY TO REGULATE.  REGULATION MAY TAKE THE
FORM OF LEGISLATION, E.G., RESTRAINT OF TRADE STATUTES, OR BE LEFT TO
THE AD HOC JUDICIAL PROCESS, E.G., COMMON LAW MODE OF DEALING WITH
RESTRAINTS OF TRADE.  EITHER METHOD MAY OUTLAW AN END NOT IN THE PUBLIC
INTEREST OR MERELY ADDRESS ITSELF TO THE OBVIOUS MEANS TOWARD SUCH
END.  THE FORM THE REGULATION SHOULD TAKE AND ITS SCOPE ARE SURELY
MATTERS OF POLICY AND, AS SUCH, WITHIN A STATE'S CHOICE.    IF BECAUSE
OF THE COMPULSIVE FEATURES INHERENT IN PICKETING, BEYOND THE ASPECT OF
MERE COMMUNICATION AS AN APPEAL TO REASON, A STATE CHOOSES TO ENJOIN
PICKETING TO SECURE SUBMISSION TO A DEMAND FOR EMPLOYMENT PROPORTIONAL
TO THE RACIAL ORIGIN OF THE THEN CUSTOMERS OF A BUSINESS, IT NEED NOT
FORBID THE EMPLOYER TO ADOPT SUCH A QUOTA SYSTEM OF HIS OWN FREE WILL. 
A STATE IS NOT REQUIRED TO EXERCISE ITS INTERVENTION ON THE BASIS OF
ABSTRACT REASONING.  THE CONSTITUTION COMMANDS NEITHER LOGICAL SYMMETRY
NOR EXHAUSTION OF A PRINCIPLE.  "THE PROBLEMS OF GOVERNMENT ARE
PRACTICAL ONES AND MAY JUSTIFY, IF THEY DO NOT REQUIRE, ROUGH
ACCOMMODATIONS - ILLOGICAL, IT MAY BE, AND UNSCIENTIFIC."  METROPOLIS
THEATRE CO. V. CHICAGO, 228 U.S. 61, 69-70.  A STATE MAY "DIRECT ITS
LAW AGAINST WHAT IT DEEMS THE EVIL AS IT ACTUALLY EXISTS WITHOUT
COVERING THE WHOLE FIELD OF POSSIBLE ABUSES, AND IT MAY DO SO NONE THE
LESS THAT THE FORBIDDEN ACT DOES NOT DIFFER IN KIND FROM THOSE THAT ARE
ALLOWED."  CENTRAL LUMBER CO. V. SOUTH DAKOTA, 226 U.S. 157, 160.  SEE
ALSO LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 81; KEOKEE
CONSOLIDATED COKE CO. V. TAYLOR, 234 U.S. 224, 227; MILLER V. WILSON,
236 U.S. 373, 384; FARMERS & MERCHANTS BANK V. FEDERAL RESERVE BANK,
262 U.S. 649, 661-62; JAMES-DICKINSON FARM MORTGAGE CO. V. HARRY, 273
U.S. 119, 125; SPROLES V. BINFORD, 286 U.S. 374, 396; LABOR BOARD V.
JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 46.  LAWMAKING IS ESSENTIALLY
EMPIRICAL AND TENTATIVE, AND IN ADJUDICATION AS IN LEGISLATION THE
CONSTITUTION DOES NOT FORBID "CAUTIOUS ADVANCE, STEP BY STEP, AND THE
DISTRUST OF GENERALITIES."  CARROLL V. GREENWICH INSURANCE CO., 199
U.S. 401, 411. 

THE INJUNCTION HERE WAS DRAWN TO MEET WHAT CALIFORNIA DEEMED THE EVIL
OF PICKETING TO BRING ABOUT PROPORTIONAL HIRING.  WE DO NOT GO BEYOND
THE CIRCUMSTANCES OF THE CASE.  GENERALIZATIONS ARE TREACHEROUS IN THE
APPLICATION OF LARGE CONSTITUTIONAL CONCEPTS.  AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE MINTON ARE OF THE OPINION THAT THIS
CASE IS CONTROLLED BY THE PRINCIPLES ANNOUNCED IN GIBONEY V. EMPIRE
STORAGE & ICE CO., 336 U.S. 490, AND THEREFORE CONCUR IN THE COURT'S
JUDGMENT. 

MR. JUSTICE REED, CONCURRING. 

I READ THE OPINION OF THE SUPREME COURT OF CALIFORNIA TO HOLD THAT
THE PICKETS SOUGHT FROM LUCKY STORES, INC., DISCRIMINATION IN FAVOR OF
PERSONS OF THE NEGRO RACE, A DISCRIMINATION UNLAWFUL UNDER CALIFORNIA
LAW.  SUCH PICKETING MAY BE BARRED BY A STATE.  GIBONEY V. EMPIRE
STORAGE & ICE CO., 336 U.S. 490. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





TEAMSTERS UNION V. HANKE, 339 U.S. 470 


ARGUED FEBRUARY 9, 1950.  - DECIDED MAY 8, 1950.  - 33 WASH.2D 646, 666,
207 P.2D 206, 216, AFFIRMED. 


A BUSINESS CONDUCTED BY THE OWNER HIMSELF WITHOUT EMPLOYEES WAS
PEACEFULLY PICKETED BY A LABOR UNION TO COMPEL COMPLIANCE WITH A DEMAND
FOR A UNION SHOP.  HELD:  A STATE COURT INJUNCTION AGAINST THE
PICKETING, CHALLENGED AS INFRINGING THE RIGHT OF FREEDOM OF SPEECH AS
GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, IS
AFFIRMED.  PP. 471-474, 481. 

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. UNION, LOCAL 309, ET AL.
V. HANKE ET AL., DOING BUSINESS AS ATLAS AUTO REBUILD. 

NO. 309.  CERTIORARI TO THE SUPREME COURT OF WASHINGTON* . 

*TOGETHER WITH NO. 364, AUTOMOBILE DRIVERS & DEMONSTRATORS LOCAL
UNION NO. 882 ET AL. V. CLINE, ALSO ON CERTIORARI TO THE SAME COURT,
ARGUED FEBRUARY 9-10, 1950. 

THE STATE SUPREME COURT IN THESE TWO CASES SUSTAINED PERMANENT
INJUNCTIONS AGAINST PICKETING OF PLACES OF BUSINESS.  33 WASH.2D 646,
666, 207 P.2D 206, 216.  THIS COURT GRANTED CERTIORARI.  338 U.S. 903. 
AFFIRMED, P. 481. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE JACKSON AND MR. JUSTICE
BURTON CONCURRED. 

THESE TWO CASES RAISE THE SAME ISSUES AND ARE THEREFORE DISPOSED OF
IN A SINGLE OPINION.  THE QUESTION IS THIS:  DOES THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION BAR A STATE FROM USE OF THE INJUNCTION TO
PROHIBIT THE PICKETING OF A BUSINESS CONDUCTED BY THE OWNER HIMSELF
WITHOUT EMPLOYEES IN ORDER TO SECURE COMPLIANCE BY HIM WITH A DEMAND TO
BECOME A UNION SHOP? 

IN NO. 309, RESPONDENTS A. E. HANKE AND HIS THREE SONS, AS
COPARTNERS, ENGAGED IN THE BUSINESS OF REPAIRING AUTOMOBILES,
DISPENSING GASOLINE AND AUTOMOBILE ACCESSORIES, AND SELLING USED
AUTOMOBILES IN SEATTLE.  THEY CONDUCTED THEIR ENTIRE ENTERPRISE
THEMSELVES, WITHOUT ANY EMPLOYEES.  AT THE TIME THE SENIOR HANKE
PURCHASED THE BUSINESS IN JUNE, 1946, WHICH HAD THERETOFORE BEEN
CONDUCTED AS A UNION SHOP, HE BECAME A MEMBER OF LOCAL 309 OF THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, WHICH INCLUDES IN ITS
MEMBERSHIP PERSONS EMPLOYED AND ENGAGED IN THE GASOLINE SERVICE STATION
BUSINESS IN SEATTLE.  ACCORDINGLY, THE HANKES CONTINUED TO DISPLAY IN
THEIR SHOW WINDOW THE UNION SHOP CARD OF THEIR PREDECESSOR.  LOCAL 309
ALSO INCLUDED THE HANKES' BUSINESS IN THE LIST OF FIRMS FOR WHICH IT
URGED PATRONAGE IN ADVERTISEMENTS PUBLISHED IN THE WASHINGTON ORGAN OF
THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, DISTRIBUTED WEEKLY TO
MEMBERS.  AS A RESULT OF THE USE OF THE UNION SHOP CARD AND THESE
ADVERTISEMENTS, THE HANKES RECEIVED UNION PATRONAGE WHICH THEY
OTHERWISE WOULD NOT HAVE HAD. 

AUTOMOBILE DRIVERS AND DEMONSTRATORS LOCAL 882, CLOSELY AFFILIATED
WITH LOCAL 309 AND ALSO CHARTERED BY THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, INCLUDES IN ITS MEMBERSHIP PERSONS ENGAGED IN THE BUSINESS
OF SELLING USED CARS AND USED CAR SALESMEN IN SEATTLE.  THIS UNION
NEGOTIATED AN AGREEMENT IN 1946 WITH THE INDEPENDENT AUTOMOBILE DEALERS
ASSOCIATION OF SEATTLE, TO WHICH THE HANKES DID NOT BELONG, PROVIDING
THAT USED CAR LOTS BE CLOSED BY 6 P.M. ON WEEKDAYS AND ALL DAY ON
SATURDAYS, SUNDAYS AND EIGHT SPECIFIED HOLIDAYS.  THIS AGREEMENT WAS
INTENDED TO BE APPLICABLE TO 115 USED CAR DEALERS IN SEATTLE, ALL
EXCEPT TEN OF WHICH WERE SELF-EMPLOYERS WITH NO EMPLOYEES. 

IT WAS THE PRACTICE OF THE HANKES TO REMAIN OPEN NIGHTS, WEEKENDS AND
HOLIDAYS.  IN JANUARY, 1948, REPRESENTATIVES OF BOTH LOCALS CALLED UPON
THE HANKES TO URGE THEM TO RESPECT THE LIMITATION ON BUSINESS HOURS IN
THE AGREEMENT OR GIVE UP THEIR UNION SHOP CARD.  THE HANKES REFUSED TO
CONSENT TO ABIDE BY THE AGREEMENT, CLAIMING THAT IT WOULD BE IMPOSSIBLE
TO CONTINUE IN BUSINESS AND DO SO, AND SURRENDERED THE UNION SHOP
CARD.  THE NAME OF THE HANKES' BUSINESS WAS THEREAFTER OMITTED FROM THE
LIST PUBLISHED BY LOCAL 309 IN ITS ADVERTISEMENTS. 

SOON AFTERWARDS THE LOCAL SENT A SINGLE PICKET TO PATROL UP AND DOWN
PEACEFULLY IN FRONT OF THE HANKES' BUSINESS BETWEEN THE HOURS OF 8:30
A.M. AND 5 P.M., CARRYING A "SANDWICH SIGN" WITH THE WORDS "UNION
PEOPLE LOOK FOR THE UNION SHOP CARD" AND A FACSIMILE OF THE SHOP CARD. 
THE PICKET ALSO WROTE DOWN THE AUTOMOBILE LICENSE NUMBERS OF THE
HANKES' PATRONS.  AS A RESULT OF THE PICKETING, THE HANKES' BUSINESS
FELL OFF HEAVILY AND DRIVERS FOR SUPPLY HOUSES REFUSED TO DELIVER PARTS
AND OTHER NEEDED MATERIALS.  THE HANKES HAD TO USE THEIR OWN TRUCK TO
CALL FOR THE MATERIALS NECESSARY TO CARRY ON THEIR BUSINESS. 

TO RESTRAIN THIS CONDUCT, THE HANKES BROUGHT SUIT AGAINST LOCAL 309
AND ITS OFFICERS.  THE TRIAL COURT GRANTED A PERMANENT INJUNCTION
AGAINST THE PICKETING AND AWARDED THE HANKES A JUDGMENT OF $250, THE
SUM STIPULATED BY THE PARTIES TO BE THE AMOUNT OF DAMAGE OCCASIONED BY
THE PICKETING.  THE SUPREME COURT OF WASHINGTON AFFIRMED.  33 WASH.2D
646, 207 P.2D 206. 

THE BACKGROUND IN NO. 364 IS SIMILAR.  GEORGE E. CLINE ENGAGED IN THE
USED CAR BUSINESS IN SEATTLE, PERFORMING HIMSELF THE SERVICES OF HIS
BUSINESS HERE RELEVANT.  HE WAS INDUCED BY THE THREAT OF PICKETING TO
JOIN AUTOMOBILE DRIVERS LOCAL 882 IN 1946, AND IN THAT YEAR HE ALSO
BECAME A MEMBER OF THE INDEPENDENT AUTOMOBILE DEALERS ASSOCIATION OF
SEATTLE WHICH NEGOTIATED WITH LOCAL 882 THE AGREEMENT AS TO BUSINESS
HOURS TO WHICH REFERENCE HAS BEEN MADE. 

IN AUGUST, 1947, CLINE ADVISED LOCAL 882 THAT HE DID NOT INTEND TO
CONTINUE MEMBERSHIP IN THE UNION AND THAT HE WAS NO LONGER A MEMBER OF
THE INDEPENDENT AUTOMOBILE DEALERS ASSOCIATION.  HE ANNOUNCED THAT HE
DID NOT CONSIDER HIMSELF BOUND BY THE AGREEMENT AS TO BUSINESS HOURS
AND THAT HE INTENDED TO OPERATE ON SATURDAYS.  WHEN CLINE PROCEEDED TO
DO SO LOCAL 882 BEGAN TO PICKET HIS BUSINESS. 

THE PICKETING WAS CONDUCTED PEACEFULLY, NORMALLY BY TWO PICKETS WHO
PATROLLED UP AND DOWN CARRYING "SANDWICH SIGNS" STATING THAT CLINE WAS
UNFAIR TO THE UNION.  THE PICKETS TOOK DOWN THE AUTOMOBILE LICENSE
NUMBERS OF CLINE'S PATRONS, AND WHEN INQUIRY WAS MADE BY PATRONS AS TO
WHY THEY WERE DOING SO, THEIR REPLY WAS:  "YOU'LL FIND OUT."  BECAUSE
OF INTERFERENCE BY THE PICKETS WITH THE USE OF ONE OF CLINE'S
DRIVEWAYS, HE WAS FORCED TO CLOSE IT TO AVOID THE POSSIBILITY OF ONE OF
THE PICKETS BEING RUN OVER.  AS A RESULT OF THE PICKETING, CLINE'S
BUSINESS FELL OFF AND, AS IN NO. 309, DRIVERS FOR SUPPLY HOUSES REFUSED
TO DELIVER PARTS AND OTHER NEEDED MATERIALS.  CLINE HAD TO USE HIS OWN
VEHICLE TO CALL FOR SUPPLIES NECESSARY TO CARRY ON THE BUSINESS. 

LOCAL 882 REACHED A NEW AGREEMENT WITH THE INDEPENDENT AUTOMOBILE
DEALERS ASSOCIATION IN APRIL, 1948.  AS A CONDITION TO REMOVAL OF THE
PICKET LINE, THE UNION DEMANDED THAT CLINE AGREE TO KEEP HIS BUSINESS
CLOSED AFTER 1 P.M. ON SATURDAYS AND TO HIRE A MEMBER OF THE UNION AS A
SALESMAN TO BE COMPENSATED AT THE RATE OF SEVEN PERCENT OF THE GROSS
SALES REGARDLESS OF WHETHER THEY WERE MADE BY CLINE OR THIS EMPLOYEE. 
SUIT BY CLINE TO RESTRAIN PATROLLING OF HIS BUSINESS RESULTED IN A
PERMANENT INJUNCTION AGAINST THE UNION AND ITS OFFICERS - CLINE WAIVED
HIS CLAIM FOR DAMAGES - AND THE SUPREME COURT OF WASHINGTON, RELYING ON
ITS DECISION IN THE HANKE CASE, AFFIRMED.  33 WASH.2D 666, 207 P.2D
216. 

IN BOTH THESE CASES WE GRANTED CERTIORARI TO CONSIDER CLAIMS OF
INFRINGEMENT OF THE RIGHT OF FREEDOM OF SPEECH AS GUARANTEED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  338 U.S. 903. 

HERE, AS IN HUGHES V. SUPERIOR COURT, ANTE, P. 460, WE MUST START
WITH THE FACT THAT WHILE PICKETING HAS AN INGREDIENT OF COMMUNICATION
IT CANNOT DOGMATICALLY BE EQUATED WITH THE CONSTITUTIONALLY PROTECTED
FREEDOM OF SPEECH.  OUR DECISIONS REFLECT RECOGNITION THAT PICKETING IS
"INDEED A HYBRID."  FREUND, ON UNDERSTANDING THE SUPREME COURT
18(1949).  SEE ALSO JAFFE, IN DEFENSE OF THE SUPREME COURT'S PICKETING
DOCTRINE, 41 MICH. L. REV. 1037(1943).  THE EFFORT IN THE CASES HAS
BEEN TO STRIKE A BALANCE BETWEEN THE CONSTITUTIONAL PROTECTION OF THE
ELEMENT OF COMMUNICATION IN PICKETING AND "THE POWER OF THE STATE TO
SET THE LIMITS OF PERMISSIBLE CONTEST OPEN TO INDUSTRIAL COMBATANTS." 
THORNHILL V. ALABAMA, 310 U.S. 88, 104.  FN1  A STATE'S JUDGMENT ON
STRIKING SUCH A BALANCE IS OF COURSE SUBJECT TO THE LIMITATIONS OF THE
FOURTEENTH AMENDMENT.  EMBRACING AS SUCH A JUDGMENT DOES, HOWEVER, A
STATE'S SOCIAL AND ECONOMIC POLICIES, WHICH IN TURN DEPEND ON KNOWLEDGE
AND APPRAISAL OF LOCAL SOCIAL AND ECONOMIC FACTORS, SUCH JUDGMENT ON
THESE MATTERS COMES TO THIS COURT BEARING A WEIGHTY TITLE OF RESPECT. 

THESE TWO CASES EMPHASIZE THE NATURE OF A PROBLEM THAT IS PRESENTED
BY OUR DUTY OF SITTING IN JUDGMENT ON A STATE'S JUDGMENT IN STRIKING
THE BALANCE THAT HAS TO BE STRUCK WHEN A STATE DECIDES NOT TO KEEP
HANDS OFF THESE INDUSTRIAL CONTESTS.  HERE WE HAVE A GLARING INSTANCE
OF THE INTERPLAY OF COMPETING SOCIAL-ECONOMIC INTERESTS AND
VIEWPOINTS.  UNIONS OBVIOUSLY ARE CONCERNED NOT TO HAVE UNION STANDARDS
UNDERMINED BY NON-UNION SHOPS.  THIS INTEREST PENETRACTES INTO SELF
EMPLOYER SHOPS.  ON THE OTHER HAND, SOME OF OUR PROFOUNDEST THINKERS
FROM JEFFERSON TO BRANDEIS HAVE STRESSED THE IMPORTANCE TO A DEMOCRATIC
SOCIETY OF ENCOURAGING SELF-EMPLOYER ECONOMIC UNITS AS A COUNTER
MOVEMENT TO WHAT ARE DEEMED TO BE THE DANGERS INHERENT IN EXCESSIVE
CONCENTRATION OF ECONOMIC POWER.  "THERE IS A WIDESPREAD BELIEF  ...
THAT THE TRUE PROSPERITY OF OUR PAST CAME NOT FROM BIG BUSINESS, BUT
THROUGH THE COURAGE, THE ENERGY AND THE RESOURCEFULNESS OF SMALL MEN
... AND THAT ONLY THROUGH PARTICIPATION BY THE MANY IN THE
RESPONSIBILITIES AND DETERMINATIONS OF BUSINESS, CAN AMERICANS SECURE
THE MORAL AND INTELLECTUAL DEVELOPMENT WHICH IS ESSENTIAL TO THE
MAINTENANCE OF LIBERTY."  MR. JUSTICE BRANDEIS, DISSENTING IN LIGGETT
CO. V. LEE, 288 U.S. 517, 541, 580. 

WHETHER TO PREFER THE UNION OR A SELF-EMPLOYER IN SUCH A SITUATION,
OR TO SEEK PARTIAL RECOGNITION OF BOTH INTERESTS, AND, IF SO, BY WHAT
MEANS TO SECURE SUCH ACCOMMODATION, OBVIOUSLY PRESENTS TO A STATE
SERIOUS PROBLEMS.  THERE ARE NO SURE ANSWERS, AND THE BEST AVAILABLE
SOLUTION IS LIKELY TO BE EXPERIMENTAL AND TENTATIVE, AND ALWAYS SUBJECT
TO THE CONTROL OF THE POPULAR WILL.  THAT THE SOLUTION OF THESE
PERPLEXITIES IS A CHALLENGE TO WISDOM AND NOT A COMMAND OF THE
CONSTITUTION IS THE SIGNIFICANCE OF SENN V. TILE LAYERS PROTECTIVE
UNION, 301 U.S. 468.  SENN, A SELF-EMPLOYED TILE LAYER WHO OCCASIONALLY
HIRED OTHER TILE LAYERS TO ASSIST HIM, WAS PICKETED WHEN HE REFUSED TO
YIELD TO THE UNION DEMAND THAT HE NO LONGER WORK HIMSELF AT HIS TRADE. 
THE WISCONSIN COURT FOUND THE SITUATION TO BE WITHIN THE STATE'S ANTI
INJUNCTION STATUTE AND DENIED RELIEF.  IN REJECTING THE CLAIM THAT THE
RESTRICTION UPON SENN'S FREEDOM WAS A DENIAL OF HIS LIBERTY UNDER THE
FOURTEENTH AMENDMENT, THIS COURT HELD THAT IT LAY IN THE DOMAIN OF
POLICY FOR WISCONSIN TO PERMIT THE PICKETING:  "WHETHER IT WAS WISE FOR
THE STATE TO PERMIT THE UNIONS TO DO SO IS A QUESTION OF ITS PUBLIC
POLICY - NOT OUR CONCERN."  301 U.S. AT 481. 

THIS CONCLUSION WAS BASED ON THE COURT'S RECOGNITION THAT IT WAS
WISCONSIN, NOT THE FOURTEENTH AMENDMENT, WHICH PUT SUCH PICKETING AS A
"MEANS OF PUBLICITY ON A PAR WITH ADVERTISEMENTS IN THE PRESS."  FN2
301 U.S. AT 479.  IF WISCONSIN COULD PERMIT SUCH PICKETING AS A MATTER
OF POLICY IT MUST HAVE BEEN EQUALLY FREE AS A MATTER OF POLICY TO
CHOOSE NOT TO PERMIT IT AND THEREFORE NOT TO "PUT THIS MEANS OF
PUBLICITY ON A PAR WITH ADVERTISEMENTS IN THE PRESS."  IF WISCONSIN
COULD HAVE DEEMED IT WISE TO WITHDRAW FROM THE UNION THE PERMISSION
WHICH THIS COURT FOUND OUTSIDE THE BAN OF THE FOURTEENTH AMENDMENT,
SUCH ACTION BY WASHINGTON CANNOT BE INSIDE THAT BAN.  FN3 

WASHINGTON HERE CONCLUDED THAT, EVEN THOUGH THE RELIEF AFFORDED THE
HANKES AND CLINE ENTAILED RESTRICTION UPON COMMUNICATION THAT THE
UNIONS SOUGHT TO CONVEY THROUGH PICKETING, IT WAS MORE IMPORTANT TO
SAFEGUARD THE VALUE WHICH THE STATE PLACED UPON SELF-EMPLOYERS, LEAVING
ALL OTHER CHANNELS OF COMMUNICATION OPEN TO THE UNION.  THE RELATIVELY
SMALL INTEREST OF THE UNIONS CONSIDERABLY INFLUENCED THE BALANCE THAT
WAS STRUCK.  OF 115 USED CAR DEALERS IN SEATTLE MAINTAINING UNION
STANDARDS, ALL BUT TEN WERE SELF-EMPLOYERS WITH NO EMPLOYEES.  "FROM
THIS FACT," SO WE ARE INFORMED BY THE SUPREME COURT OF WASHINGTON, "THE
CONCLUSION SEEMS IRRESISTIBLE THAT THE UNION'S INTEREST IN THE WELFARE
OF A MERE HANDFUL OF MEMBERS (OF WHOSE WORKING CONDITIONS NO COMPLAINT
AT ALL IS MADE) IS FAR OUTWEIGHED BY THE INTERESTS OF INDIVIDUAL
PROPRIETORS AND THE PEOPLE OF THE COMMUNITY AS A WHOLE, TO THE END THAT
LITTLE BUSINESSMEN AND PROPERTY OWNERS SHALL BE FREE FROM DICTATION AS
TO BUSINESS POLICY BY AN OUTSIDE GROUP HAVING BUT A RELATIVELY SMALL
AND INDIRECT INTEREST IN SUCH POLICY."  33 WASH.2D AT 659, 207 P.2D AT
213. 

WE ARE, NEEDLESS TO SAY, FULLY AWARE OF THE CONTENTIOUS NATURE OF
THESE VIEWS.  IT IS NOT OUR BUSINESS EVEN REMOTELY TO HINT AT AGREEMENT
OR DISAGREEMENT WITH WHAT HAS COMMENDED ITSELF TO THE STATE OF
WASHINGTON, OR EVEN TO INTIMATE THAT ALL THE RELEVANT CONSIDERATIONS
ARE EXPOSED IN THE CONCLUSIONS REACHED BY THE WASHINGTON COURT.  THEY
SELDOM ARE IN THIS FIELD, SO DECEPTIVE AND OPAQUE ARE THE ELEMENTS OF
THESE PROBLEMS.  THAT IS PRECISELY WHAT IS MEANT BY RECOGNIZING THAT
THEY ARE WITHIN THE DOMAIN OF A STATE'S PUBLIC POLICY.  BECAUSE THERE
IS LACK OF AGREEMENT AS TO THE RELEVANT FACTORS AND DIVERGENT
INTERPRETATIONS OF THEIR MEANING, AS WELL AS DIFFERENCES IN ASSESSING
WHAT IS THE SHORT AND WHAT IS THE LONG VIEW, THE CLASH OF FACT AND
OPINION SHOULD BE RESOLVED BY THE DEMOCRATIC PROCESS AND NOT BY THE
JUDICIAL SWORD.  INVALIDATION HERE WOULD MEAN DENIAL OF POWER TO THE
CONGRESS AS WELL AS TO THE FORTY-EIGHT STATES.    IT IS NOT FOR US TO
PASS JUDGMENT ON CASES NOT NOW BEFORE US.  BUT WHEN ONE CONSIDERS THAT
ISSUES NOT UNLIKE THOSE THAT ARE HERE HAVE BEEN SIMILARLY VIEWED BY
OTHER STATES  FN4  AND BY THE CONGRESS OF THE UNITED STATES,  FN5  WE
CANNOT CONCLUDE THAT WASHINGTON, IN HOLDING THE PICKETING IN THESE
CASES TO BE FOR AN UNLAWFUL OBJECT, HAS STRUCK A BALANCE SO
INCONSISTENT WITH ROOTED TRADITIONS OF A FREE PEOPLE THAT IT MUST BE
FOUND AN UNCONSTITUTIONAL CHOICE.  MINDFUL AS WE ARE THAT A PHASE OF
PICKETING IS COMMUNICATION, WE CANNOT FIND THAT WASHINGTON HAS OFFENDED
THE CONSTITUTION. 

WE NEED NOT REPEAT THE CONSIDERATIONS TO WHICH WE ADVERTED IN HUGHES
V. SUPERIOR COURT THAT MAKE IT IMMATERIAL, IN RESPECT TO THE
CONSTITUTIONAL ISSUE BEFORE US, THAT THE POLICY OF WASHINGTON WAS
EXPRESSED BY ITS SUPREME COURT RATHER THAN BY ITS LEGISLATURE.  THE
FOURTEENTH AMENDMENT LEAVES THE STATES FREE TO DISTRIBUTE THE POWERS OF
GOVERNMENT AS THEY WILL BETWEEN THEIR LEGISLATIVE AND JUDICIAL
BRANCHES.  DREYER V. ILLINOIS, 187 U.S. 71, 83-84; PRENTIS V. ATLANTIC
COAST LINE CO., 211 U.S. 210, 225.  "(RIGHTS) UNDER THAT AMENDMENT TURN
ON THE POWER OF THE STATE, NO MATTER BY WHAT ORGAN IT ACTS."  MISSOURI
V. DOCKERY, 191 U.S. 165, 170-71. 

NOR DOES THE FOURTEENTH AMENDMENT REQUIRE PROHIBITION BY WASHINGTON
ALSO OF VOLUNTARY ACQUIESCENCE IN THE DEMANDS OF THE UNION IN ORDER
THAT IT MAY CHOOSE TO PROHIBIT THE RIGHT TO SECURE SUBMISSION THROUGH
PICKETING.  IN ABSTAINING FROM INTERFERENCE WITH SUCH VOLUNTARY
AGREEMENTS A STATE MAY RELY ON SELF-INTEREST.  IN ANY EVENT, IT IS NOT
FOR THIS COURT TO QUESTION A STATE'S JUDGMENT IN REGULATING ONLY WHERE
AN EVIL SEEMS TO IT MOST CONSPICUOUS. 

WHAT WAS ACTUALLY DECIDED IN AMERICAN FEDERATION OF LABOR V. SWING,
312 U.S. 321, BAKERY & PASTRY DRIVERS & HELPERS LOCAL V. WOHL, 315 U.S.
769, AND CAFETERIA EMPLOYEES UNION V. ANGELOS, 320 U.S. 293, DOES NOT
PRECLUDE US FROM UPHOLDING WASHINGTON'S POWER TO MAKE THE CHOICE OF
POLICY SHE HAS HERE MADE.  IN THOSE CASES WE HELD ONLY THAT A STATE
COULD NOT PROSCRIBE PICKETING MERELY BY SETTING ARTIFICIAL BOUNDS,
UNREAL IN THE LIGHT OF MODERN CIRCUMSTANCES, TO WHAT CONSTITUTES AN
INDUSTRIAL RELATIONSHIP OR A LABOR DISPUTE.  FN6  SEE COX, SOME ASPECTS
OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 HARV. L. REV. 1,
30(1947).  THE POWER OF A STATE TO DECLARE A POLICY IN FAVOR OF SELF
EMPLOYERS AND TO MAKE CONDUCT RESTRICTIVE OF SELF-EMPLOYMENT UNLAWFUL
WAS NOT CONSIDERED IN THOSE CASES.  INDEED IN WOHL THIS COURT EXPRESSLY
NOTED THAT THE STATE COURTS HAD NOT FOUND THAT THE PICKETING THERE
CONDEMNED WAS FOR A DEFINED UNLAWFUL OBJECT.  315 U.S. AT 774. 

WHEN AN INJUNCTION OF A STATE COURT COMES BEFORE US IT COMES NOT AS
AN INDEPENDENT COLLOCATION OF WORDS.  IT IS DEFINED AND CONFINED BY THE
OPINION OF THE STATE COURT.  THE INJUNCTIONS IN THESE TWO CASES ARE TO
BE JUDGED HERE WITH ALL THE LIMITATIONS THAT ARE INFUSED INTO THEIR
TERMS BY THE OPINIONS OF THE WASHINGTON SUPREME COURT ON THE BASIS OF
WHICH THE JUDGMENTS BELOW COME BEFORE US.  SO READ, THE INJUNCTIONS ARE
DIRECTED SOLELY AGAINST PICKETING FOR THE ENDS DEFINED BY THE PARTIES
BEFORE THE WASHINGTON COURT AND THIS COURT.  TO TREAT THE INJUNCTIONS
OTHERWISE - TO TREAT THEM, THAT IS, OUTSIDE THE SCOPE OF THE ISSUES
WHICH THEY REPRESENT - IS TO DEAL WITH A CASE THAT IS NOT HERE AND WAS
NOT BEFORE THE WASHINGTON COURT.  IN CONSIDERING AN INJUNCTION AGAINST
PICKETING RECENTLY, WE HAD OCCASION TO REJECT A SIMILAR CLAIM OF
INFIRMITY DERIVED NOT FROM THE RECORD BUT FROM UNREALITY.  WHAT WE THEN
SAID IS PERTINENT NOW:  "WHAT IS BEFORE US  ...  IS NOT THE ORDER AS AN
ISOLATED, SELF-CONTAINED WRITING BUT THE ORDER WITH THE GLOSS OF THE
SUPREME COURT OF WISCONSIN UPON IT."  HOTEL & RESTAURANT EMPLOYEES'
INTERNATIONAL ALLIANCE V. WISCONSIN E.R.B., 315 U.S. 437, 441.  OUR
AFFIRMANCE OF THESE INJUNCTIONS IS IN CONFORMITY WITH THE READING
DERIVED FROM THE WASHINGTON COURT'S OPINIONS.  IF ASTUTENESS MAY
DISCOVER ARGUMENTATIVE EXCESS IN THE SCOPE OF THE INJUNCTIONS BEYOND
WHAT WE CONSTITUTIONALLY JUSTIFY BY THIS OPINION, IT WILL BE OPEN TO
PETITIONERS TO RAISE THE MATTER, WHICH THEY HAVE NOT RAISED HERE, WHEN
THE CASES ON REMAND REACH THE WASHINGTON COURT.  AFFIRMED. 

FN1  IT IS RELEVANT TO NOTE THAT THE ALABAMA STATUTE HELD
UNCONSTITUTIONAL IN THE THORNHILL CASE HAD BEEN CONSTRUED BY THE STATE
COURTS TO PROHIBIT PICKETING WITHOUT "EXCEPTIONS BASED UPON EITHER THE
NUMBER OF PERSONS ENGAGED IN THE PROSCRIBED ACTIVITY, THE PEACEFUL
CHARACTER OF THEIR DEMEANOR, THE NATURE OF THEIR DISPUTE WITH AN
EMPLOYER, OR THE RESTRAINED CHARACTER AND THE ACCURATENESS OF THE
TERMINOLOGY USED IN NOTIFYING THE PUBLIC OF THE FACTS OF THE DISPUTE." 
310 U.S. AT 99. 

FN2  THE COURT SAID:  "IN DECLARING SUCH PICKETING PERMISSIBLE
WISCONSIN HAS PUT THIS MEANS OF PUBLICITY ON A PAR WITH ADVERTISEMENTS
IN THE PRESS."  301 U.S. AT 479.  TO ASSUME THAT THIS SENTENCE IS TO BE
READ AS THOUGH THE PICKETING WAS PERMITTED BY WISCONSIN NOT AS A MATTER
OF CHOICE BUT BECAUSE THE FOURTEENTH AMENDMENT COMPELLED ITS ALLOWANCE
IS TO ASSUME THAT SO CAREFUL A WRITER AS MR. JUSTICE BRANDEIS, THE
AUTHOR OF THE COURT'S OPINION, MEANT THE ABOVE SENTENCE TO BE READ AS
THOUGH IT CONTAINED THE BRACKETED INSERTION AS FOLLOWS:  "IN DECLARING
SUCH PICKETING PERMISSIBLE WISCONSIN (RECOGNIZED THAT THE FOURTEENTH
AMENDMENT) HAS PUT THIS MEANS OF PUBLICITY ON A PAR WITH ADVERTISEMENTS
IN THE PRESS."  IN OTHER WORDS, IT IS SUGGESTED THAT THE BRACKETED
INTERPOLATION WHICH JUSTICE BRANDEIS DID NOT WRITE IS TO BE READ INTO
WHAT HE DID WRITE ALTHOUGH THEREBY ITS ESSENTIAL MEANING WOULD BE
ALTERED. 

FN3  OF COURSE, THE TRUE SIGNIFICANCE OF PARTICULAR PHRASES IN SENN
APPEARS ONLY WHEN THEY ARE EXAMINED IN THEIR CONTEXT:  "CLEARLY THE
MEANS WHICH THE STATUTE AUTHORIZES - PICKETING AND PUBLICITY - ARE NOT
PROHIBITED BY THE FOURTEENTH AMENDMENT.  MEMBERS OF A UNION MIGHT,
WITHOUT SPECIAL STATUTORY AUTHORIZATION BY A STATE, MAKE KNOWN THE
FACTS OF A LABOR DISPUTE, FOR FREEDOM OF SPEECH IS GUARANTEED BY THE
FEDERAL CONSTITUTION.  THE STATE MAY, IN THE EXERCISE OF ITS POLICE
POWER, REGULATE THE METHODS AND MEANS OF PUBLICITY AS WELL AS THE USE
OF PUBLIC STREETS."  301 U.S. AT 478. 

FN4  SEE, E.G., BAUTISTA V. JONES, 25 CAL.2D 746, 155 P.2D 343;
DINOFFRIA V. INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND CHAUFFEURS, 331
ILL. APP. 129, 72 N.E.2D 635; SAVEALL V. DEMERS, 322 MASS. 70, 76
N.E.2D 12. 

FN5  SECTION 8(B)(4)(A) OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, MAKES IT AN UNFAIR
LABOR PRACTICE FOR A UNION "TO ENGAGE IN  ...  A STRIKE ...  WHERE AN
OBJECT THEREOF IS:  (A) FORCING OR REQUIRING ANY EMPLOYER OR SELF
EMPLOYED PERSON TO JOIN ANY LABOR OR EMPLOYER ORGANIZATION."  61 STAT.
141, 29 U.S.C. (SUPP. III) SEC. 158(B)(4)(A).  SEE ALSO SEC. 10(L) OF
THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, AND SEC. 303 OF THE LABOR
MANAGEMENT RELATIONS ACT. 

FN6  AS TO THE COURT'S DUTY TO RESTRICT GENERAL EXPRESSIONS IN
OPINIONS IN EARLIER CASES TO THEIR SPECIFIC CONTEXT, SEE COHENS V.
VIRGINIA, 6 WHEAT.  264, 399-400; ARMOUR & CO. V. WANTOCK, 323 U.S.
126, 132-33. 

MR. JUSTICE CLARK CONCURS IN THE RESULT. 

MR. JUSTICE BLACK DISSENTS FOR SUBSTANTIALLY THE REASONS GIVEN IN HIS
DISSENT IN CARPENTERS & JOINERS UNION V. RITTER'S CAFE, 315 U.S. 722,
729-32. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE MINTON, WITH WHOM MR. JUSTICE REED JOINS, DISSENTING. 

PETITIONERS IN EACH OF THESE CASES WERE "PERMANENTLY RESTRAINED AND
ENJOINED FROM IN ANY MANNER PICKETING" THE PLACES OF BUSINESS OF
RESPONDENTS.  THE PICKETING HERE WAS PEACEFUL PUBLICITY, NOT ENMESHED
IN A PATTERN OF VIOLENCE AS WAS TRUE IN MILK WAGON DRIVERS UNION V.
MEADOWMOOR DAIRIES, 312 U.S. 287; NOR WAS THERE VIOLENCE IN THE
PICKETING, AS IN HOTEL & RESTAURANT EMPLOYEES' INTERNATIONAL ALLIANCE
V. WISCONSIN E.R.B., 315 U.S. 437.  THE DECREES ENTERED IN THE INSTANT
CASES WERE NOT TAILORED TO MEET THE EVILS OF THREATS AND INTIMIDATION
AS CAFETERIA EMPLOYEES UNION V. ANGELOS, 320 U.S. 293, 295, INDICATES
THEY MIGHT HAVE BEEN; NOR WERE THEY LIMITED TO RESTRAINT OF PICKETING
FOR THE PURPOSE OF FORCING THE PERSON PICKETED TO VIOLATE THE LAW AND
PUBLIC POLICY OF THE STATE, AS WERE THE DECREES IN GIBONEY V. EMPIRE
STORAGE & ICE CO., 336 U.S. 490, AND BUILDING SERVICE EMPLOYEES UNION
V. GAZZAM, POST, P. 532, THIS DAY DECIDED.  THE ABUSES OF PICKETING
INVOLVED IN THE ABOVE CASES WERE HELD BY THIS COURT NOT TO BE PROTECTED
BY THE FOURTEENTH AMENDMENT FROM STATE RESTRAINT. 

IT SEEMS EQUALLY CLEAR TO ME THAT PEACEFUL PICKETING WHICH IS USED
PROPERLY AS AN INSTRUMENT OF PUBLICITY HAS BEEN HELD BY THIS COURT IN
THORNHILL V. ALABAMA, 310 U.S. 88; CARLSON V. CALIFORNIA, 310 U.S. 106;
AMERICAN FEDERATION OF LABOR V. SWING, 312 U.S. 321; BAKERY & PASTRY
DRIVERS & HELPERS LOCAL V. WOHL, 315 U.S. 769; AND CAFETERIA EMPLOYEES
UNION V. ANGELOS, 320 U.S. 293, TO BE PROTECTED BY THE FOURTEENTH
AMENDMENT.  I DO NOT UNDERSTAND THAT IN THE LAST THREE MENTIONED CASES
THIS COURT, AS THE MAJORITY IN ITS OPINION SAYS, "HELD ONLY THAT A
STATE COULD NOT PROSCRIBE PICKETING MERELY BY SETTING ARTIFICIAL
BOUNDS, UNREAL IN THE LIGHT OF MODERN CIRCUMSTANCES, TO WHAT
CONSTITUTES AN INDUSTRIAL RELATIONSHIP OR A LABOR DISPUTE."  IF THE
STATES MAY SET BOUNDS, IT IS NOT FOR THIS COURT TO SAY WHERE THEY SHALL
BE SET, UNLESS THE SETTING VIOLATES SOME PROVISION OF THE FEDERAL
CONSTITUTION.  I UNDERSTAND THE ABOVE CASES TO HAVE FOUND VIOLATIONS OF
THE FEDERAL CONSTITUTIONAL GUARANTEE OF FREEDOM OF SPEECH, AND THE
PICKETING COULD NOT BE RESTRAINED BECAUSE TO DO SO WOULD VIOLATE THE
RIGHT OF FREE SPEECH AND PUBLICITY.  THIS VIEW IS PLAINLY STATED BY
THIS COURT IN CAFETERIA EMPLOYEES UNION V. ANGELOS, 320 U.S. AT 295: 

"IN SENN V. TILE LAYERS UNION, 301 U.S. 468, THIS COURT RULED THAT
MEMBERS OF A UNION MIGHT, 'WITHOUT SPECIAL STATUTORY AUTHORIZATION BY A
STATE, MAKE KNOWN THE FACTS OF A LABOR DISPUTE, FOR FREEDOM OF SPEECH
IS GUARANTEED BY THE FEDERAL CONSTITUTION.'  301 U.S. AT 478.  LATER
CASES APPLIED THE SENN DOCTRINE BY ENFORCING THE RIGHT OF WORKERS TO
STATE THEIR CASE AND TO APPEAL FOR PUBLIC SUPPORT IN AN ORDERLY AND
PEACEFUL MANNER REGARDLESS OF THE AREA OF IMMUNITY AS DEFINED BY STATE
POLICY.  A.F. OF L. V. SWING, 312 U.S. 321; BAKERY DRIVERS LOCAL V.
WOHL, 315 U.S. 769." 

ALL THE RECENT CASES OF THIS COURT UPHOLDING PICKETING, FROM
THORNHILL TO ANGELOS, HAVE DONE SO ON THE VIEW THAT "PEACEFUL PICKETING
AND TRUTHFUL PUBLICITY" (SEE 320 U.S. AT 295) IS PROTECTED BY THE
GUARANTY OF FREE SPEECH.  THIS VIEW STEMS FROM MR. JUSTICE BRANDEIS'
STATEMENT IN SENN THAT "MEMBERS OF A UNION MIGHT, WITHOUT SPECIAL
STATUTORY AUTHORIZATION BY A STATE, MAKE KNOWN THE FACTS OF A LABOR
DISPUTE, FOR FREEDOM OF SPEECH IS GUARANTEED BY THE FEDERAL
CONSTITUTION."  301 U.S. 468, 478.  IN THAT CASE JUSTICE BRANDEIS WAS
DEALING WITH ACTION OF WISCONSIN THAT PERMITTED PICKETING BY A LABOR
UNION OF A ONE-MAN SHOP.  OF COURSE, AS LONG AS WISCONSIN ALLOWED
PICKETING, THERE WAS NO INTERFERENCE WITH FREEDOM OF EXPRESSION.  BY
PERMITTING PICKETING THE STATE WAS ALLOWING THE EXPRESSION FOUND IN
"PEACEFUL PICKETING AND TRUTHFUL PUBLICITY."  THERE WAS IN THAT POSTURE
OF THE CASE NO QUESTION OF CONFLICT WITH THE RIGHT OF FREE SPEECH.  BUT
BECAUSE WISCONSIN COULD PERMIT PICKETING, AND NOT THEREBY ENCROACH UPON
FREEDOM OF SPEECH, IT DOES NOT FOLLOW THAT IT COULD FORBID LIKE
PICKETING; FOR THAT MIGHT INVOLVE CONFLICT WITH THE FOURTEENTH
AMENDMENT.  IT SEEMS TO ME THAT JUSTICE BRANDEIS, FORESEEING THE
PROBLEM OF THE CONVERSE, MADE THE STATEMENT ABOVE QUOTED IN ORDER TO
INDICATE THAT PICKETING COULD BE PROTECTED BY THE FREE SPEECH GUARANTY
OF THE FEDERAL CONSTITUTION.  WHETHER OR NOT THAT IS WHAT JUSTICE
BRANDEIS MEANT, I THINK THIS COURT HAS ACCEPTED THAT VIEW, FROM
THORNHILL TO ANGELOS.  IT SEEMS TO ME TOO LATE NOW TO DENY THAT THOSE
CASES WERE ROOTED IN THE FREE SPEECH DOCTRINE.  I THINK WE SHOULD NOT
DECIDE THE INSTANT CASES IN A MANNER SO ALIEN TO THE BASIS OF PRIOR
DECISIONS. 

THE OUTLAWING OF PICKETING FOR ALL PURPOSES IS PERMITTED THE STATE OF
WASHINGTON BY THE UPHOLDING OF THESE BROAD DECREES.  NO DISTINCTION IS
MADE BETWEEN WHAT IS LEGITIMATE PICKETING AND WHAT IS ABUSIVE
PICKETING.  "(HERE) WE HAVE NO ATTEMPT BY THE STATE THROUGH ITS COURTS
TO RESTRICT CONDUCT JUSTIFIABLY FOUND TO BE AN ABUSIVE EXERCISE OF THE
RIGHT TO PICKET."  ANGELOS CASE, 320 U.S. AT 295. 

BECAUSE THE DECREES HERE ARE NOT DIRECTED AT ANY ABUSE OF PICKETING
BUT AT ALL PICKETING, I THINK TO SUSTAIN THEM IS CONTRARY TO OUR PRIOR
HOLDINGS, FOUNDED AS THEY ARE IN THE DOCTRINE THAT "PEACEFUL PICKETING
AND TRUTHFUL PUBLICITY" IS PROTECTED BY THE CONSTITUTIONAL GUARANTY OF
THE RIGHT OF FREE SPEECH.  I RECOGNIZE THAT PICKETING IS MORE THAN
SPEECH.  THAT IS WHY I THINK AN ABUSE OF PICKETING MAY LEAD TO A
FORFEITURE OF THE PROTECTION OF FREE SPEECH.  TESTED BY THE PHILOSOPHY
OF PRIOR DECISIONS, NO SUCH FORFEITURE IS JUSTIFIED HERE. 

I WOULD REVERSE THE JUDGMENTS IN THESE TWO CASES. 
..END :













UNITED STATES V. REAL ESTATE BOARDS, 339 U.S. 485 


NO. 428.  ARGUED MARCH 31, 1950.  - DECIDED MAY 8, 1950.  - 84 F.SUPP. 
802, AFFIRMED IN PART AND REVERSED IN PART. 


1.  THAT NO INTERSTATE COMMERCE IS INVOLVED IS NOT A BARRIER TO A SUIT
TO ENJOIN VIOLATIONS OF SEC. 3 OF THE SHERMAN ACT INVOLVING PURELY
LOCAL CONDUCT IN THE DISTRICT OF COLUMBIA, SINCE CONGRESS SPECIFICALLY
MADE SEC. 3 APPLICABLE TO SUCH CONDUCT AND HAD POWER TO DO SO UNDER
ART. I, SEC. 8, CLAUSE 17 OF THE CONSTITUTION.  ATLANTIC CLEANERS &
DYERS V. UNITED STATES, 286 U.S. 427.  P. 488. 

2.  IF THE BUSINESS OF A REAL ESTATE BROKER IS "TRADE" WITHIN THE
MEANING OF SEC. 3 OF THE SHERMAN ACT, EVIDENCE THAT THE WASHINGTON REAL
ESTATE BOARD HAD ADOPTED STANDARD RATES OF COMMISSIONS FOR ITS MEMBERS,
THAT ITS CODE OF ETHICS REQUIRED MEMBERS TO MAINTAIN SUCH STANDARD
RATES, THAT MEMBERS AGREED TO ABIDE BY THE CODE, AND THAT THE
PRESCRIBED RATES WERE USED IN THE GREAT MAJORITY OF TRANSACTIONS,
ALTHOUGH THE BOARD HAD INVOKED NO SANCTIONS FOR DEPARTURE THEREFROM, IS
SUFFICIENT TO SHOW A PRICE-FIXING SCHEME VIOLATIVE OF SEC. 3.  PP. 488
489. 

(A)  THAT SUCH PRICE-FIXING MAY SERVE A WORTHY OR HONORABLE END IS
IMMATERIAL.  P. 489. 

(B)  THAT NO PENALTIES WERE IMPOSED FOR DEVIATIONS FROM THE PRICE
SCHEDULES IS IMMATERIAL.  P. 489. 

3.  THE BUSINESS OF A REAL ESTATE BROKER IS "TRADE" WITHIN THE
MEANING OF SEC. 3 OF THE SHERMAN ACT.  PP. 489-492. 

(A)  THE SERVICES OF REAL ESTATE BROKERS CANNOT BE ASSIMILATED TO
THOSE OF EMPLOYEES, NOR CAN THE PRESENT CASE BE COMPARED TO THOSE
INVOLVING THE APPLICATION OF THE ANTITRUST LAWS TO LABOR UNIONS -
NOTWITHSTANDING SEC. 6 OF THE CLAYTON ACT DECLARING THAT "THE LABOR OF
A HUMAN BEING IS NOT A COMMODITY OR ARTICLE OF COMMERCE" AND EXEMPTING
LABOR UNIONS AND THEIR MEMBERS FROM THE ANTITRUST LAWS.  PP. 489-490. 

(B)  THE FACT THAT THE BUSINESS OF A REAL ESTATE BROKER INVOLVES THE
SALE OF PERSONAL SERVICES RATHER THAN COMMODITIES DOES NOT TAKE IT OUT
OF THE CATEGORY OF "TRADE" WITHIN THE MEANING OF SEC. 3 OF THE SHERMAN
ACT, WHICH IS AIMED AT THE FIXING OF PRICES AND OTHER UNREASONABLE
RESTRAINTS IN THE CASE OF SERVICES AS WELL AS GOODS.  PP. 490-491. 

(C)  THE ACTIVITY OF A REAL ESTATE BROKER IS COMMERCIAL AND CARRIED
ON FOR PROFIT; AND THE COMPETITIVE STANDARDS WHICH THE SHERMAN ACT
SOUGHT TO PRESERVE IN THE FIELD OF TRADE AND COMMERCE ARE AS RELEVANT
TO THE BROKERAGE BUSINESS AS TO OTHER BRANCHES OF COMMERCIAL ACTIVITY. 
P. 492. 

4.  THAT APPELLEES WERE ACQUITTED IN A CRIMINAL PROSECUTION FOR
CONSPIRACY TO VIOLATE SEC. 3 OF THE SHERMAN ACT IS NO BAR TO THIS CIVIL
SUIT TO ENJOIN THE SAME CONSPIRACY, SINCE THE DOCTRINE OF RES JUDICATA
IS NOT APPLICABLE.  HELVERING V. MITCHELL, 303 U.S. 391.  PP. 492-494. 

5.  THE FINDING OF THE DISTRICT COURT THAT THE NATIONAL ASSOCIATION
OF REAL ESTATE BOARDS AND ITS EXECUTIVE VICE PRESIDENT DID NOT IN FACT
CONSPIRE WITH THE WASHINGTON BOARD TO FIX AND PRESCRIBE THE RATES OF
COMMISSION TO BE CHARGED BY MEMBERS OF THE LATTER IS SUSTAINED, SINCE
IT WAS NOT "CLEARLY ERRONEOUS" WITHIN THE MEANING OF RULE 52 OF THE
FEDERAL RULES OF CIVIL PROCEDURE.  PP. 494-496. 

UNITED STATES V. NATIONAL ASSOCIATION OF REAL ESTATE BOARDS ET AL. 

APPEAL FROM THE UNITED STATES DISTRCT COURT FOR THE DISTRICT OF
COLUMBIA. 

IN A CIVIL SUIT IN A FEDERAL DISTRICT COURT TO ENJOIN A CONSPIRACY TO
FIX RATES OF COMMISSIONS OF REAL ESTATE BROKERS IN THE DISTRICT OF
COLUMBIA IN VIOLATION OF SEC. 3 OF THE SHERMAN ACT, JUDGMENT WAS
ENTERED FOR DEFENDANTS.  84 F.SUPP.  802.  ON APPEAL TO THIS COURT,
AFFIRMED IN PART AND REVERSED IN PART, P. 496. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL ACTION BROUGHT BY THE UNITED STATES TO ENJOIN
APPELLEES  FN1  FROM ENGAGING IN A PRICE-FIXING CONSPIRACY IN VIOLATION
OF SEC. 3 OF THE SHERMAN ACT, 26 STAT. 209, 15 U.S.C. SEC. 3.  FN2  THE
CORE OF THE CASE IS THE CHARGE THAT THE MEMBERS OF THE WASHINGTON REAL
ESTATE BOARD COMBINED AND CONSPIRED TO FIX THE COMMISSION RATES FOR
THEIR SERVICES WHEN ACTING AS BROKERS IN THE SALE, EXCHANGE, LEASE AND
MANAGEMENT OF REAL PROPERTY IN THE DISTRICT OF COLUMBIA. 

THE SAME CONSPIRACY WAS CHARGED IN A CRIMINAL PROCEEDING N3.  THE
CRIMINAL CASE WAS TRIED FIRST.  AT THE END OF THE GOVERNMENT'S CASE THE
COURT GRANTED THE DEFENDANTS' MOTION FOR A JUDGMENT OF ACQUITTAL.  80
F.SUPP.  350.  APPELLEES THEN MOVED FOR SUMMARY JUDGMENT IN THIS CIVIL
SUIT, CONTENDING THAT THE JUDGMENT OF ACQUITTAL IN THE CRIMINAL CASE IS
RES JUDICATA HERE.  THAT MOTION WAS DENIED.  FN4 

THE CIVIL CASE WAS THEN TRIED.  IT WAS STIPULATED THAT THE TRIAL
WOULD BE ON THE RECORD IN THE CRIMINAL CASE, THE UNITED STATES
RESERVING THE RIGHT TO OFFER ADDITIONAL EXHIBITS.  NO EVIDENCE WAS
OFFERED BY APPELLEES.  THE COURT ENTERED JUDGMENT FOR THE APPELLEES,
HOLDING THAT THE AGREEMENT TO FIX THE RATES OF BROKERAGE COMMISSIONS,
WHICH HAD BEEN SHOWN, WAS NOT A VIOLATION OF THE ACT.  84 F.SUPP. 
802.  THE CASE IS HERE ON APPEAL.  32 STAT. 823, 62 STAT. 989, 15
U.S.C. SEC. 29. 

FIRST.  THE FACT THAT NO INTERSTATE COMMERCE IS INVOLVED IS NOT A
BARRIER TO THIS SUIT.  SECTION 3 OF THE SHERMAN ACT  FN5  IS NOT
LEVELED AT INTERSTATE ACTIVITIES ALONE.  IT ALSO PUTS BEYOND THE PALE
CERTAIN CONDUCT PURELY LOCAL IN CHARACTER AND CONFINED TO THE DISTRICT
OF COLUMBIA.  THAT CONGRESS HAS THE POWER SO TO LEGISLATE FOR THE
DISTRICT BY VIRTUE OF ART. I, SEC. 8, CLAUSE 17 OF THE CONSTITUTION AND
DID SO BY SEC. 3 WAS SETTLED BY ATLANTIC CLEANERS & DYERS V. UNITED
STATES, 286 U.S. 427, 432-435. 

SECOND.  THE WASHINGTON BOARD HAS ADOPTED STANDARD RATES OF
COMMISSIONS FOR ITS MEMBERS - CHARGES WHICH COVER THE WIDE RANGE OF
SERVICES FURNISHED BY A REAL ESTATE AGENT.  THE BOARD'S CODE OF ETHICS
PROVIDES THAT "BROKERS SHOULD MAINTAIN THE STANDARD RATES OF COMMISSION
ADOPTED BY THE BOARD AND NO BUSINESS SHOULD BE SOLICITED AT LOWER
RATES."  MEMBERS AGREE TO ABIDE BY THIS CODE.  THE PRESCRIBED RATES ARE
USED IN THE GREAT MAJORITY OF TRANSACTIONS, ALTHOUGH IN EXCEPTIONAL
SITUATIONS A LOWER CHARGE IS MADE.  BUT DEPARTURE FROM THE PRESCRIBED
RATES HAS NOT CAUSED THE WASHINGTON BOARD TO INVOKE ANY SANCTIONS. 
HENCE THE DISTRICT COURT CALLED THE RATE SCHEDULES "NON-MANDATORY." 

ENOUGH HAS BEEN SAID TO SHOW THAT UNDER OUR DECISIONS AN ILLEGAL
PRICE-FIXING SCHEME HAS BEEN PROVED, UNLESS THE FIXING OF REAL ESTATE
COMMISSIONS IS NOT INCLUDED IN THE PROHIBITIONS OF SEC. 3 OF THE ACT. 
PRICE-FIXING IS PER SE AN UNREASONABLE RESTRAINT OF TRADE.  IT IS NOT
FOR THE COURTS TO DETERMINE WHETHER IN PARTICULAR SETTINGS PRICE-FIXING
SERVES AN HONORABLE OR WORTHY END.  AN AGREEMENT, SHOWN EITHER BY
ADHERENCE TO A PRICE SCHEDULE OR BY PROOF OF CONSENSUAL ACTION FIXING
THE UNIFORM OR MINIMUM PRICE, IS ITSELF ILLEGAL UNDER THE SHERMAN ACT,
NO MATTER WHAT END IT WAS DESIGNED TO SERVE.  THAT IS THE TEACHING OF
AN UNBROKEN LINE OF DECISIONS.  SEE UNITED STATES V. SOCONY-VACUUM OIL
CO., 310 U.S. 150, 218 ET SEQ.; UNITED STATES V. PARAMOUNT PICTURES,
334 U.S. 131, 142, 143.  AND THE FACT THAT NO PENALTIES ARE IMPOSED FOR
DEVIATIONS FROM THE PRICE SCHEDULES IS NOT MATERIAL.  SEE EASTERN
STATES LUMBER ASSN. V. UNITED STATES, 234 U.S. 600, 608-609; AMERICAN
COLUMN CO. V. UNITED STATES, 257 U.S. 377, 411; FEDERAL TRADE
COMMISSION V. PACIFIC PAPER ASSN., 273 U.S. 52, 62.  SUBTLE INFLUENCES
MAY BE JUST AS EFFECTIVE AS THE THREAT OR USE OF FORMAL SANCTIONS TO
HOLD PEOPLE IN LINE. 

THIRD.  THE CRITICAL QUESTION IS WHETHER THE BUSINESS OF A REAL
ESTATE AGENT IS INCLUDED IN THE WORD "TRADE" WITHIN THE MEANING OF SEC.
3 OF THE ACT.  THE DISTRICT COURT THOUGHT NOT.  IT WAS OF THE VIEW THAT
WHERE PERSONAL SERVICES ARE INVOLVED, A COMBINATION TO FIX THE PRICE OR
COMPENSATION IS LEGAL.  IT SEEMINGLY WAS INFLUENCED BY THE DECLARATION
IN SEC. 6 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C. SEC. 17, THAT
"THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR ARTICLE OF COMMERCE
...  NOR SHALL SUCH (LABOR) ORGANIZATIONS, OR THE MEMBERS THEREOF, BE
HELD OR CONSTRUED TO BE ILLEGAL COMBINATIONS OR CONSPIRACIES IN
RESTRAINT OF TRADE, UNDER THE ANTITRUST LAWS."  BUT WE THINK IT A
MISCONCEPTION TO ASSIMILATE THE SERVICES INVOLVED HERE TO THOSE OF
EMPLOYEES OR TO COMPARE THE PRESENT CASE TO THOSE INVOLVING THE
APPLICATION OF THE ANTITRUST LAWS TO LABOR UNIONS.  CF. APEX HOSIERY
CO. V. LEADER, 310 U.S. 469; UNITED STATES V. HUTCHESON, 312 U.S. 219. 
WE DO NOT HAVE HERE ANY MORE THAN WE DID IN AMERICAN MEDICAL ASSN. V.
UNITED STATES, 317 U.S. 519, OR UNITED STATES V. WOMEN'S SPORTSWEAR
MFRS.  ASSN., 336 U.S. 460, CF. COLUMBIA RIVER PACKERS ASSN. V. HINTON,
315 U.S. 143, AN ASPECT OF THE EMPLOYEE-EMPLOYER RELATIONSHIP TO WHICH
THE ANTITRUST LAWS HAVE MADE SPECIAL CONCESSIONS. 

MEMBERS OF THE WASHINGTON BOARD ARE ENTREPRENEURS.  SOME ARE
INDIVIDUAL PROPRIETORS; OTHERS ARE BANKS OR CORPORATIONS.  SOME MAY
HAVE NO EMPLOYEES; OTHERS HAVE LARGE STAFFS.  BUT EACH IS IN BUSINESS
ON HIS OWN.  THE FACT THAT THE BUSINESS INVOLVES THE SALE OF PERSONAL
SERVICES RATHER THAN COMMODITIES DOES NOT TAKE IT OUT OF THE CATEGORY
OF "TRADE" WITHIN THE MEANING OF SEC. 3 OF THE ACT.  THE ACT WAS AIMED
AT COMBINATIONS ORGANIZED AND DIRECTED TO CONTROL OF THE MARKET BY
SUPPRESSION OF COMPETITION "IN THE MARKETING OF GOODS AND SERVICES." 
SEE APEX HOSIERY CO. V. LEADER, SUPRA, P. 493. 

JUSTICE STORY IN THE NYMPH, 18 FED. CAS. 506, WHILE CONSTRUING THE
WORD "TRADE" IN THE COASTING AND FISHERY ACT OF 1793, 1 STAT. 305,
SAID, 

"THE ARGUMENT FOR THE CLAIMANT INSISTS, THAT 'TRADE' IS HERE USED IN
ITS MOST RESTRICTIVE SENSE, AND AS EQUIVALENT TO TRAFFIC IN GOODS, OR
BUYING AND SELLING IN COMMERCE OR EXCHANGE.  BUT I AM CLEARLY OF
OPINION, THAT SUCH IS NOT THE TRUE SENSE OF THE WORD, AS USED IN THE
32D SECTION.  IN THE FIRST PLACE, THE WORD 'TRADE' IS OFTEN, AND INDEED
GENERALLY, USED IN A BROADER SENSE, AS EQUIVALENT TO OCCUPATION,
EMPLOYMENT, OR BUSINESS, WHETHER MANUAL OR MERCANTILE.  WHEREVER ANY
OCCUPATION, EMPLOYMENT, OR BUSINESS IS CARRIED ON FOR THE PURPOSE OF
PROFIT, OR GAIN, OR A LIVELIHOOD, NOT IN THE LIBERAL ARTS OR IN THE
LEARNED PROFESSIONS, IT IS CONSTANTLY CALLED A TRADE.  THUS, WE
CONSTANTLY SPEAK OF THE ART, MYSTERY, OR TRADE OF A HOUSEWRIGHT, A
SHIPWRIGHT, A TAILOR, A BLACKSMITH, AND A SHOEMAKER, THOUGH SOME OF
THESE MAY BE, AND SOMETIMES ARE, CARRIED ON WITHOUT BUYING OR SELLING
GOODS." 

IT IS IN THAT BROAD SENSE THAT "TRADE" IS USED IN THE SHERMAN ACT. 
THAT HAS BEEN THE CONSISTENT HOLDING OF THE DECISIONS.  THE FIXING OF
PRICES AND OTHER UNREASONABLE RESTRAINTS HAVE BEEN CONSISTENTLY
CONDEMNED IN CASE OF SERVICES AS WELL AS GOODS.  TRANSPORTATION
SERVICES (UNITED STATES V. FREIGHT ASSN., 166 U.S. 290, 312; UNITED
STATES V. JOINT TRAFFIC ASSN., 171 U.S. 505), CLEANING, DYEING, AND
RENOVATING WEARING APPAREL (ATLANTIC CLEANERS & DYERS V. UNITED STATES,
286 U.S. 427), THE PROCUREMENT OF MEDICAL AND HOSPITAL SERVICES
(AMERICAN MEDICAL ASSN. V. UNITED STATES, SUPRA, 528), THE FURNISHING
OF NEWS OR ADVERTISING SERVICES (FARMER'S GUIDE CO. V. PRAIRIE CO., 293
U.S. 268; ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1) - THESE
INDICATE THE RANGE OF BUSINESS ACTIVITIES THAT HAVE BEEN HELD TO BE
COVERED BY THE ACT.  IN ATLANTIC CLEANERS & DYERS V. UNITED STATES,
SUPRA, 435, 437, THE COURT REJECTED THE VIEW THAT "TRADE" AS USED IN
SEC. 3 SHOULD BE INTERPRETED IN THE NARROW SENSE WHICH WOULD EXCLUDE
PERSONAL SERVICES.  IT HELD, SPEAKING THROUGH MR. JUSTICE SUTHERLAND,
THAT SEC. 3 USED THE WORD IN THE BROAD SENSE IN WHICH JUSTICE STORY
USED IT IN THE NYMPH, SUPRA.  CHIEF JUSTICE GRONER MADE AN EXTENDED
ANALYSIS AND SUMMARY OF THE PROBLEM IN UNITED STATES V. AMERICAN
MEDICAL ASSN., 72 APP. D.C. 12, 16-20, 110 F.2D 703, 707-711, WHERE THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA HELD THAT THE PRACTICE OF
MEDICINE IN THE DISTRICT WAS A "TRADE" WITHIN THE MEANING OF SEC. 3 OF
THE ACT.  ITS CONCLUSION WAS THAT THE TERM INCLUDED "ALL OCCUPATIONS IN
WHICH MEN ARE ENGAGED FOR A LIVELIHOOD."  WE DO NOT INTIMATE AN OPINION
ON THE CORRECTNESS OF THE APPLICATION OF THE TERM TO THE PROFESSIONS. 
WE HAVE SAID ENOUGH TO INDICATE WE WOULD BE CONTRACTING THE SCOPE OF
THE CONCEPT OF "TRADE," AS USED IN THE PHRASE "RESTRAINT OF TRADE," IN
A PRECEDENT-BREAKING MANNER IF WE CARVED OUT AN EXEMPTION FOR REAL
ESTATE BROKERS.  THEIR ACTIVITY IS COMMERCIAL AND CARRIED ON FOR
PROFIT.  THE FACT THAT NO GOODS ARE MANUFACTURED OR BOUGHT OR SOLD IN
THE PROCESS IS AS IRRELEVANT HERE AS IT WAS IN ATLANTIC CLEANERS &
DYERS V. UNITED STATES, SUPRA.  NO REASON OF POLICY HAS BEEN ADVANCED
FOR READING SEC. 3 OF THE ACT LESS LITERALLY THAN ITS TERMS SUGGEST. 
THE COMPETITIVE STANDARDS WHICH THE ACT SOUGHT TO PRESERVE IN THE FIELD
OF TRADE AND COMMERCE SEEM AS RELEVANT TO THE BROKERAGE BUSINESS AS TO
OTHER BRANCHES OF COMMERCIAL ACTIVITY. 

HOPKINS V. UNITED STATES, 171 U.S. 578, AND ANDERSON V. UNITED
STATES, 171 U.S. 604, ARE NOT OPPOSED TO THIS CONCLUSION.  IT WAS HELD
IN THOSE CASES THAT COMMISSION MERCHANTS AND YARD TRADERS ON LIVESTOCK
EXCHANGES WERE NOT ENGAGED IN INTERSTATE COMMERCE EVEN THOUGH THE
LIVESTOCK MOVED ACROSS STATE LINES (CF. STAFFORD V. WALLACE, 258 U.S.
495), AND THEREFORE THAT THE RULES AND AGREEMENTS BETWEEN THE MERCHANTS
AND TRADERS (WHICH INCLUDED IN THE HOPKINS CASE THE FIXING OF MINIMUM
FEES) DID NOT FALL UNDER THE BAN OF THE SHERMAN ACT.  BUT WE ARE NOT
CONFRONTED WITH THAT PROBLEM HERE.  AS NOTED, WE ARE CONCERNED HERE NOT
WITH INTERSTATE COMMERCE BUT WITH TRADE OR COMMERCE IN THE DISTRICT OF
COLUMBIA. 

FOURTH.  APPELLEES CLAIM THAT THE JUDGMENT OF ACQUITTAL IN THE
CRIMINAL ACTION IS RES JUDICATA IN THIS ACTION.  HELVERING V. MITCHELL,
303 U.S. 391, IS CONTRA AND RULES THIS CASE.  THERE MITCHELL HAD BEEN
TRIED AND ACQUITTED OF A CRIMINAL CHARGE OF WILFULLY ATTEMPTING TO
EVADE PAYMENT OF HIS INCOME TAX.  THEREAFTER SUIT WAS BROUGHT TO
COLLECT THE TAXES OWED PLUS A 50 PER CENT PENALTY FOR FRAUDULENT
EVASION.  THE ACQUITTAL IN THE CRIMINAL CASE WAS HELD NOT TO BE A BAR
TO THE COLLECTION OF THE PENALTY.  FN6  "THE DIFFERENCE IN DEGREE OF
THE BURDEN OF PROOF IN CRIMINAL AND CIVIL CASES" WAS HELD TO PRECLUDE
APPLICATION OF THE DOCTRINE OF RES JUDICATA IN THE CIVIL SUIT.  303
U.S. 397.  IN THE PRESENT CASE THE MOTIONS FOR JUDGMENT OF ACQUITTAL
RAISED THE QUESTION WHETHER THE EVIDENCE OVERCAME ALL REASONABLE DOUBT
OF THE GUILT OF APPELLEES.  FN7  THE RULING ON THEM DID NOT DETERMINE
WHETHER BY THE LESSER DEGREE OF PROOF REQUIRED IN A CIVIL CASE
APPELLEES MIGHT BE FOUND TO HAVE CONSPIRED TO FIX COMMISSIONS.  THE
CIVIL ACTION IS INDEPENDENT OF THE CRIMINAL CAUSE (STANDARD SANITARY
MFG. CO. V. UNITED STATES, 226 U.S. 20, 52) AND IS REMEDIAL IN NATURE. 
IT HAS BEEN REPEATEDLY HELD THAT THOUGH THE CIVIL SUIT IS BOTTOMED ON
THE SAME FACTS, IT IS NOT BARRED BY THE PRIOR JUDGMENT OF ACQUITTAL IN
THE CRIMINAL CASE.  SEE STONE V. UNITED STATES, 167 U.S. 178; MURPHY V.
UNITED STATES, 272 U.S. 630; HELVERING V. MITCHELL, SUPRA.  THE RESULT
IS NOT ALTERED BY THE CIRCUMSTANCE THAT THE COURT IN RULING ON THE
SUFFICIENCY OF THE EVIDENCE MAY HAVE STARTED WITH AN ERRONEOUS
CONSTRUCTION OF THE LAW. 

FIFTH.  THE DISTRICT COURT FOUND THAT TWO OF THE APPELLEES - NATIONAL
ASSOCIATION AND HERBERT U. NELSON  FN8  - DID NOT CONSPIRE WITH THE
WASHINGTON BOARD TO FIX AND PRESCRIBE THE RATES OF COMMISSION TO BE
CHARGED BY THE MEMBERS OF THE LATTER.  NO MORE PARTICULARIZED FINDINGS
WERE MADE.  APPELLANT ASKS US TO SET ASIDE THAT RULING.  THE QUESTION
IS WHETHER WE MAY DO SO IN LIGHT OF RULE 52 OF THE FEDERAL RULES OF
CIVIL PROCEDURE WHICH PROVIDES IN PART: 

"FINDINGS OF FACT SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS,
AND DUE REGARD SHALL BE GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO
JUDGE OF THE CREDIBILITY OF THE WITNESSES." 

THE NATIONAL ASSOCIATION IS A NATIONWIDE, INCORPORATED TRADE
ASSOCIATION OF WHICH THE WASHINGTON BOARD IS A MEMBER.  ACTIVE MEMBERS
OF THE WASHINGTON BOARD ARE ALSO MEMBERS OF THE NATIONAL ASSOCIATION. 
THE NATIONAL ASSOCIATION HAS A CODE OF ETHICS WHICH INCLUDES AN ARTICLE
STATING THAT "THE SCHEDULES OF FEES ESTABLISHED BY THE VARIOUS REAL
ESTATE BOARDS ARE BELIEVED TO REPRESENT FAIR COMPENSATION FOR SERVICES
RENDERED IN THEIR COMMUNITIES AND SHOULD BE OBSERVED BY EVERY
REALTOR."  IT IS PROVIDED IN THE BY-LAWS OF THE NATIONAL ASSOCIATION
(1) THAT EACH MEMBER BOARD SHALL ADOPT THE CODE OF ETHICS OF THE
NATIONAL ASSOCIATION AS A PART OF ITS RULES AND REGULATIONS FOR
VIOLATION OF WHICH DISCIPLINARY ACTION MAY BE TAKEN, AND (2) THAT ANY
MEMBER BOARD THAT NEGLECTS OR REFUSES TO MAINTAIN AND ENFORCE THE CODE
OF ETHICS WITH RESPECT TO THE ACTIVITIES OF ITS CONSTITUENT MEMBERS MAY
BE EXPELLED FROM MEMBERSHIP IN THE NATIONAL ASSOCIATION.  THE APPELLANT
ALSO POINTS TO EVIDENCE SHOWING THE ACTIVITIES OF THE NATIONAL
ASSOCIATION IN DEVELOPING A NATIONAL SCHEDULE OF COMMISSIONS WHICH, IT
IS ALLEGED, WERE INFLUENTIAL IN SHAPING THE FEES ADOPTED BY THE
WASHINGTON BOARD IN 1944.    APPELLANT RELIES CHIEFLY ON THE CODE OF
ETHICS AND BY-LAWS OF THE NATIONAL ASSOCIATION, AS IT CLEARLY MAY
(ASSOCIATED PRESS V. UNITED STATES, SUPRA, PP. 8, 12), TO ESTABLISH THE
RESTRAINT OF TRADE.  BUT WE CANNOT SAY THAT THE DISTRICT COURT WAS
"CLEARLY ERRONEOUS" IN FINDING THAT THE NATIONAL ASSOCIATION AND NELSON
WERE NOT LACED INTO THE CONSPIRACY TO FIX THE COMMISSIONS IN THE
DISTRICT OF COLUMBIA.  THE STATEMENT IN THE CODE OF ETHICS THAT THE
SCHEDULE OF FEES "SHOULD BE OBSERVED" IS SOMEWHAT AMBIGUOUS.  IT MAY BE
ADVISORY ONLY.  THE PROVISION OF THE BY-LAWS THAT VIOLATIONS OF THE
CODE OF ETHICS OF THE NATIONAL ASSOCIATION SHOULD BE THE BASIS OF
DISCIPLINARY ACTION AGAINST BOTH MEMBER BOARDS AND THEIR CONSTITUENT
MEMBERS IS AIMED AT THIRTY-FIVE ARTICLES OF THE CODE OF ETHICS, NOT
SELECTIVELY AT THE FEE PROVISION.  SO WE ARE LEFT SOMEWHAT IN DOUBT AS
TO THE EXTENT IF ANY TO WHICH THE NATIONAL ASSOCIATION AND NELSON WERE
ARCHITECTS OF THE FEE-FIXING CONSPIRACY OR PARTICIPANTS IN IT.  AT BEST
THEIR RELATIONSHIP TO IT IS, ON THIS RECORD, A SOMEWHAT ATTENUATED
ONE. 

IT IS NOT ENOUGH THAT WE MIGHT GIVE THE FACTS ANOTHER CONSTRUCTION,
RESOLVE THE AMBIGUITIES DIFFERENTLY, AND FIND A MORE SINISTER CAST TO
ACTIONS WHICH THE DISTRICT COURT APPARENTLY DEEMED INNOCENT.  SEE
UNITED STATES V. YELLOW CAB CO., 338 U.S. 338, 342; UNITED STATES V.
GYPSUM CO., 333 U.S. 364, 394-395.  WE ARE NOT GIVEN THOSE CHOICES,
BECAUSE OUR MANDATE IS NOT TO SET ASIDE FINDINGS OF FACT "UNLESS
CLEARLY ERRONEOUS." 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED EXCEPT AS TO THE
NATIONAL ASSOCIATION AND NELSON; AND AS TO THEM IT IS AFFIRMED.  SO
ORDERED. 

FN1  NATIONAL ASSOCIATION OF REAL ESTATE BOARDS, A NATION-WIDE
INCORPORATED TRADE ASSOCIATION; HERBERT U. NELSON, ITS EXECUTIVE VICE
PRESIDENT; WASHINGTON REAL ESTATE BOARD, AN INCORPORATED ASSOCIATION OF
REAL ESTATE BROKERS IN WASHINGTON, D.C.; AND 15 OF ITS MEMBERS
INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS CONSISTING OF ALL
MEMBERS OF THE WASHINGTON BOARD. 

FN2  "EVERY CONTRACT, COMBINATION IN FORM OF TRUST OR OTHERWISE, OR
CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE IN ANY TERRITORY OF THE
UNITED STATES OR OF THE DISTRICT OF COLUMBIA, OR IN RESTRAINT OF TRADE
OR COMMERCE BETWEEN ANY SUCH TERRITORY AND ANOTHER, OR BETWEEN ANY SUCH
TERRITORY OR TERRITORIES AND ANY STATE OR STATES OR THE DISTRICT OF
COLUMBIA, OR WITH FOREIGN NATIONS, OR BETWEEN THE DISTRICT OF COLUMBIA
AND ANY STATE OR STATES OR FOREIGN NATIONS, IS DECLARED ILLEGAL." 

FN3  THE INDICTMENT WAS RETURNED AGAINST THE WASHINGTON REAL ESTATE
BOARD AND THE NATIONAL ASSOCIATION OF REAL ESTATE BOARDS. 

FN4  AN APPEAL FROM THAT ORDER WAS DISMISSED.  85 U.S. APP. D.C. 165,
176 F.2D 631. 

FN5  SEE NOTE 2, SUPRA. 

FN6  SINCE THE COURT RULED THAT THE 50 PER CENT PENALTY WAS NOT A
CRIMINAL PENALTY BUT A CIVIL ADMINISTRATIVE SANCTION (303 U.S. 398
406), THE CASE WAS CONSIDERED DISTINCT FROM COFFEY V. UNITED STATES,
116 U.S. 436, WHICH HELD THAT THE FACTS ASCERTAINED IN A CRIMINAL CASE
AS BETWEEN THE UNITED STATES AND THE CLAIMANT COULD NOT BE AGAIN
LITIGATED BETWEEN THEM IN A CIVIL SUIT WHICH WAS PUNITIVE IN
CHARACTER.  THE FACT THAT IN CASE OF CORPORATIONS DISSOLUTION CAN
RESULT FROM A CIVIL SUIT UNDER THE ANTITRUST LAWS DOES NOT MAKE THE
PROCEEDING ANY THE LESS REMEDIAL.  THE CIVIL SUIT AIMS TO PUT AN END TO
THE RESTRAINT, NOT TO IMPOSE PUNISHMENT FOR PAST ACTS.  SEE SCHINE
THEATRES V. UNITED STATES, 334 U.S. 110, 128. 

FN7  THE MOTIONS APPARENTLY WERE MADE UNDER RULE 29 OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE WHICH PROVIDES IN PART:  "MOTION FOR
JUDGMENT OF ACQUITTAL.  MOTIONS FOR DIRECTED VERDICT ARE ABOLISHED AND
MOTIONS FOR JUDGMENT OF ACQUITTAL SHALL BE USED IN THEIR PLACE.  THE
COURT ON MOTION OF A DEFENDANT OR OF ITS OWN MOTION SHALL ORDER THE
ENTRY OF JUDGMENT OF ACQUITTAL OF ONE OR MORE OFFENSES CHARGED IN THE
INDICTMENT OR INFORMATION AFTER THE EVIDENCE ON EITHER SIDE IS CLOSED
IF THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF SUCH OFFENSE
OR OFFENSES." 

FN8  SEE NOTE 1, SUPRA. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE JACKSON, DISSENTING. 

IF REAL ESTATE BROKERAGE IS TO BE DISTINGUISHED FROM THE PROFESSIONS
OR FROM OTHER LABOR THAT IS PERMITTED TO ORGANIZE, THE COURT DOES NOT
IMPART ANY STANDARDS FOR SO DOING. 

IT IS CERTAIN THAT THOSE RENDERING MANY KINDS OF SERVICE ARE ALLOWED
TO COMBINE AND FIX UNIFORM RATES OF PAY AND CONDITIONS OF SERVICE. 
THIS IS TRUE OF ALL LABORERS, WHO MAY DO SO WITHIN OR WITHOUT UNIONS
AND WHOSE UNIONS FREQUENTLY DO INCLUDE OWNERS OF ESTABLISHMENTS THAT
EMPLOY OTHERS, SUCH AS AUTOMOBILE SALES AGENCIES.  SEE, FOR EXAMPLE,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. V. HANKE, ANTE, P. 470.  I
SUPPOSE THIS IMMUNITY IS NOT CONFINED TO THOSE WHOSE LABOR IS MANUAL,
AND IS NOT LOST BECAUSE THE LABOR PERFORMED IS PROFESSIONAL.  THE
BROKERAGE WHICH IS SWEPT UNDER THE ANTITRUST LAWS BY THIS DECISION IS
PERHAPS A BORDERLINE ACTIVITY.  HOWEVER, THE BROKER FURNISHES NO GOODS
AND PERFORMS ONLY PERSONAL SERVICES.  CAPITAL ASSETS PLAY NO GREATER
PART IN HIS SERVICE THAN IN THAT OF THE LAWYER, DOCTOR OR OFFICE
WORKER.  SERVICES OF THE REAL ESTATE BROKER, IF NOT STRICTLY FIDUCIARY,
ARE AT LEAST THOSE OF A TRUSTED AGENT AND, OFTENTIMES, ADVISORY AS TO
VALUES AND PROCEDURES.  I AM NOT PERSUADED THAT FIXING UNIFORM FEES FOR
THE BROKER'S LABOR IS MORE OFFENSIVE TO THE ANTITRUST LAWS THAN FIXING
UNIFORM FEES FOR THE LABOR OF A LAWYER, A DOCTOR, A CARPENTER, OR A
PLUMBER.  I WOULD AFFIRM THE DECISION OF THE COURT BELOW. 
..END :









POWELL V. U.S. CARTRIDGE CO., 339 U.S. 497 


ARGUED DECEMBER 8-9, 1949.  - DECIDED MAY 8, 1950.  - 174 F.2D 718 - 174
F.2D 730 - 171 F.2D 964, REVERSED. 


THE FAIR LABOR STANDARDS ACT APPLIES TO EMPLOYEES OF A PRIVATE
CONTRACTOR OPERATING A GOVERNMENT-OWNED MUNITIONS PLANT UNDER A COST
PLUS-A-FIXED-FEE CONTRACT WITH THE GOVERNMENT.  PP. 498-522. 

1.  SUCH EMPLOYEES ARE NOT EMPLOYEES OF THE UNITED STATES WITHIN THE
MEANING OF THE ACT.  PP. 504-508. 

2.  SUCH EMPLOYEES ARE ENGAGED IN THE PRODUCTION OF GOODS FOR
COMMERCE WITHIN THE MEANING OF THE ACT.  PP. 509-515. 

(A)  THE "TRANSPORTATION" OF MUNITIONS OF THE UNITED STATES TO
DESTINATIONS OUTSIDE OF THE STATE OF THEIR PRODUCTION IS "COMMERCE"
WITHIN THE MEANING OF THE ACT, EVEN THOUGH THE MUNITIONS WERE
TRANSPORTED FOR USE OR CONSUMPTION AND NOT FOR SALE OR EXCHANGE.  PP.
511-512. 

(B)  THE MUNITIONS PRODUCED WERE "GOODS" WITHIN THE MEANING OF THE
ACT, EVEN THOUGH THEY WERE PRODUCED FOR DELIVERY INTO THE ACTUAL
PHYSICAL POSSESSION OF THE UNITED STATES AS THEIR ULTIMATE CONSUMER. 
PP. 512-515. 

3.  THE FAIR LABOR STANDARDS ACT AND THE WALSH-HEALEY ACT OF JUNE 30,
1936, 41 U.S.C. SECS. 35 ET SEQ., ARE NOT MUTUALLY EXCLUSIVE, BUT ARE
MUTUALLY SUPPLEMENTARY.  PP. 515-520. 

4.  NEITHER THE ACT OF JULY 2, 1940, 50 U.S.C. APP. SECS. 1171, 1172,
NOR THE ACTION OF THE SECRETARY OF WAR TAKEN PURSUANT THERETO EXCLUDES
THE APPLICABILITY OF THE FAIR LABOR STANDARDS ACT TO SUCH EMPLOYEES. 
PP. 520-522. 

POWELL ET AL. V. UNITED STATES CARTRIDGE CO. 

NO. 96.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT* . 

*TOGETHER WITH NO. 79, AARON ET AL. V. FORD, BACON & DAVIS, INC., ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT; AND NO. 58, CREEL ET AL. V. LONE STAR DEFENSE CORP., ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE FACTS AND PROCEEDINGS BELOW ARE STATED IN THE OPINION AT PP. 499
504.  THE JUDGMENTS BELOW ARE REVERSED AND THE CAUSES REMANDED, P.
522. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN EACH OF THESE CASES IS WHETHER THE FAIR LABOR
STANDARDS ACT OF 1938, AS AMENDED, FN1  APPLIES TO A PERSON EMPLOYED BY
A PRIVATE CONTRACTOR AT A GOVERNMENT-OWNED MUNITIONS PLANT OPERATED BY
THE CONTRACTOR UNDER A COST-PLUS-A-FIXED-FEE CONTRACT MADE WITH THE
UNITED STATES.  WE HOLD THAT THE ACT DOES APPLY BUT WE DO NOT REACH THE
QUESTION OF THE VALIDITY OF THE INDIVIDUAL CLAIMS BASED UPON IT. 

THIS ISSUE WAS ARGUED HERE IN KENNEDY V. SILAS MASON CO., 334 U.S.
249.  WE, HOWEVER, REMANDED THAT CASE AND WITHHELD DECISION OF THE
ISSUE, AWAITING A MORE SOLID BASIS OF FINDINGS.  ID. AT P. 257.  EACH
OF THE INSTANT CASES PRESENTS SUCH A BASIS. 

                       NO. 96(THE POWELL CASE). 

IN DECEMBER, 1940, THE UNITED STATES CONTRACTED WITH THE UNITED
STATES CARTRIDGE COMPANY, RESPONDENT HEREIN, AS "AN INDEPENDENT
CONTRACTOR AND IN NO WISE AN AGENT OF THE GOVERNMENT" ON A COST-PLUS-A
FIXED-FEE BASIS TO OPERATE THE GOVERNMENT'S ST. LOUIS ORDNANCE PLANT IN
MISSOURI.  FN2 THE CONTRACT STATED THAT IT WAS AUTHORIZED BY THE ACT OF
JULY 2, 1940.  FN3  IT PROVIDED THAT THE RESPONDENT WOULD OPERATE THE
GOVERNMENT'S PLANT FOR THE MANUFACTURE OF CERTAIN TYPES AND QUANTITIES
OF SMALL ARMS AMMUNITION, THAT THE GOVERNMENT WOULD REIMBURSE THE
RESPONDENT FOR ITS EXPENDITURES IN SUCH OPERATION AND, IN ADDITION, PAY
THE RESPONDENT A FIXED FEE BASED UPON THE TYPES AND QUANTITIES OF
AMMUNITION IT SUPPLIED.  THE TITLE TO THE SITE, PLANT, EQUIPMENT AND,
IN GENERAL, TO THE RAW MATERIAL, WORK IN PROGRESS AND FINISHED
MUNITIONS WAS TO BE IN THE GOVERNMENT.  FN4  MOST OF THE MATERIALS WERE
TO BE SUPPLIED BY THE GOVERNMENT.  THE CONTRACT PROVIDED EXPRESSLY FOR
THE REIMBURSEMENT OF THE RESPONDENT'S EXPENSES FOR LABOR.  THE
RESPONDENT, IN TURN, AGREED TO SUPPLY PRACTICALLY ALL SERVICES INCIDENT
TO THE SETTING UP OF AN EFFICIENT OPERATING FORCE AND TO THE OPERATION
OF THE PLANT UNTIL THE REQUIRED AMMUNITION HAD BEEN PRODUCED.  THE
RESPONDENT WAS MADE RESPONSIBLE FOR STORING THE MATERIALS, SUPPLIES AND
FINISHED AMMUNITION AND FOR LOADING THE AMMUNITION ON CARS OR OTHER
CARRIERS IN ACCORDANCE WITH THE GOVERNMENT'S INSTRUCTIONS.  THE
AMMUNITION GENERALLY WAS SHIPPED BY COMMON CARRIER ON GOVERNMENT BILLS
OF LADING TO MILITARY DESTINATIONS OUTSIDE OF MISSOURI.  THE GOVERNMENT
RESERVED LARGE RIGHTS OF SUPERVISION, AUDITING AND INSPECTION TO BE
EXERCISED THROUGH ITS "CONTRACTING OFFICER."  THE EMPLOYEES, INCLUDING
THE PETITIONERS, WERE TO BE HIRED, ASSIGNED, DIRECTED, SUPERVISED, PAID
AND DISCHARGED BY THE RESPONDENT.  THE CONTRACT STATED EXPRESSLY THAT
ALL PERSONS ENGAGED IN THE WORK "SHALL BE SUBJECT TO THE CONTROL AND
CONSTITUTE EMPLOYEES OF THE CONTRACTOR  ...  "  IT QUOTED ALL OF THE
"REPRESENTATIONS AND STIPULATIONS" RELATING TO EMPLOYMENT DIRECTED BY
THE WALSH-HEALEY ACT.  FN5  UNDER IT, THE CONTRACTING OFFICER (SUBJECT
TO A RIGHT OF APPEAL) COULD REQUIRE THE RESPONDENT TO DISMISS ANY
EMPLOYEE WHOM HE DEEMED INCOMPETENT OR WHOSE RETENTION "IS DEEMED" NOT
TO BE IN THE PUBLIC INTEREST.  THE CONTRACT MADE NO EXPRESS REFERENCE
TO THE FAIR LABOR STANDARDS ACT.  HOWEVER, IN A BOOKLET WHICH WAS
DISTRIBUTED BY THE RESPONDENT, EACH EMPLOYEE AT THE ST. LOUIS ORDNANCE
PLANT WAS INFORMED, AMONG OTHER THINGS, THAT "THERE WILL BE EIGHT HOURS
IN ANY WORKING DAY, AND FORTY HOURS WILL CONSTITUTE A WORKING WEEK. 
...  WHEN PRODUCTION DEMANDS REQUIRE A LONGER WORK DAY, OR LONGER WORK
WEEK, THE COMPANY WILL PAY THE LEGAL OVERTIME RATE AS PROVIDED UNDER
THE WALSH-HEALEY ACT, AND THE FAIR LABOR STANDARDS ACT." 

THE 59 INDIVIDUAL PETITIONERS WERE EMPLOYED IN THE SAFETY DEPARTMENT
OF THE PLANT.  THEY ALLEGED THAT, UNDER THE FAIR LABOR STANDARDS ACT,
THEY WERE ENTITLED TO OVERTIME PAY WHICH THEY HAD NOT RECEIVED.  THEY
SUED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
MISSOURI TO RECOVER THAT PAY, PLUS LIQUIDATED DAMAGES AND AN ATTORNEY'S
FEE.  THE RESPONDENT DENIED LIABILITY ON MANY GROUNDS, INCLUDING THOSE
THAT THE FAIR LABOR STANDARDS ACT DID NOT APPLY TO EMPLOYEES AT THE ST.
LOUIS ORDNANCE PLANT AND THAT, IN ANY EVENT, THESE PETITIONERS WERE NOT
ENTITLED TO ANY RECOVERY UNDER THAT ACT.  AFTER TRIAL, THE DISTRICT
COURT ENTERED JUDGMENT IN FAVOR OF THE PETITIONERS FOR THE TOTAL SUM OF
$246,251.44(TWICE THE AMOUNT OF THE OVERTIME PAY CLAIMED), PLUS $24,625
AS AN ATTORNEY'S FEE AND COSTS.  THE RESPONDENT MOVED FOR A NEW TRIAL
TO THAT THE PORTAL-TO-PORTAL ACT OF 1947,  FN6  WHICH HAD BEEN ADOPTED
FIVE DAYS BEFORE THE DISTRICT COURT'S JUDGMENT, MIGHT BE APPLIED TO THE
ISSUES.  THE MOTION WAS DENIED AND THE CASE WAS APPEALED.  WHILE THE
APPEAL WAS PENDING IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT, THE DECISION OF THIS COURT IN KENNEDY V. SILAS MASON CO.,
SUPRA, WAS ANNOUNCED.  THE COURT OF APPEALS THEREUPON HEARD A
REARGUMENT OF THIS CASE WITH SPECIAL REFERENCE TO THE ISSUES RAISED IN
THE SILAS MASON CASE.  SITTING EN BANC, IT REVERSED THE DISTRICT COURT
AND HELD THAT THE FAIR LABOR STANDARDS ACT DID NOT APPLY TO EMPLOYMENT
AT THE ST. LOUIS ORDNANCE PLANT.  174 F.2D 718.  ALL SEVEN JUDGES HELD
THAT THE WALSH-HEALEY ACT APPLIED TO SUCH EMPLOYMENT TO THE EXCLUSION
OF THE FAIR LABOR STANDARDS ACT.  FOUR OF THOSE JUDGES ALSO JOINED IN
AN OPINION (P. 726) STATING THAT THE ACT OF JULY 2, 1940, HAD GIVEN
DISCRETION TO THE SECRETARY OF WAR TO DETERMINE WHAT OVERTIME
REGULATIONS SHOULD BE APPLICABLE TO GOVERNMENT-OWNED PRIVATELY OPERATED
PLANTS AND THAT, THROUGH HIS ADOPTION OF THE WALSH-HEALEY ACT, HE HAD
RENDERED THE FAIR LABOR STANDARDS ACT INAPPLICABLE UNDER THIS
CONTRACT.  THE COURT OF APPEALS DID NOT REACH THE MERITS OF THE
INDIVIDUAL CLAIMS OF THE PETITIONERS UNDER THE FAIR LABOR STANDARDS
ACT.  WE GRANTED CERTIORARI.  338 U.S. 810. 

                       NO. 79(THE AARON CASE). 

THIS CASE PRESENTS SUBSTANTIALLY THE SAME ISSUE AS THAT IN THE POWELL
CASE, BUT IT RELATES TO EMPLOYEES AT THE ARKANSAS ORDNANCE PLANT.  THE
ISSUE ARISES ON A SUMMARY JUDGMENT OF THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS IN FAVOR OF THE RESPONDENT,
RENDERED ON PLEADINGS, SUPPORTING AFFIDAVITS, ADMISSIONS OF FACT AND
ANSWERS TO INTERROGATORIES.  THE PLANT WAS OPERATED BY THE RESPONDENT
UNDER A COST-PLUS-A-FIXED-FEE CONTRACT ENTERED INTO WITH THE UNITED
STATES IN JULY, 1941, AND GENERALLY COMPARABLE, FOR PRESENT PURPOSES,
WITH THAT IN THE POWELL CASE.  THE PETITIONERS, 1,278 IN NUMBER, WERE
HANDLERS, CARRIERS AND PROCESSORS OF EXPLOSIVES, WHO CLAIMED ADDITIONAL
COMPENSATION UNDER THE FAIR LABOR STANDARDS ACT FOR APPROXIMATELY 35
MINUTES BEFORE, AND 30 MINUTES AFTER, THEIR SCHEDULED WORK IN THE
PLANT.  THE RESPONDENT ANSWERED AND MOVED FOR SUMMARY JUDGMENT ON THREE
GROUNDS - THAT THE PETITIONERS WERE NOT ENGAGED IN THE KIND OF WORK
THAT IS COVERED BY THE FAIR LABOR STANDARDS ACT, THAT THEY ARE NOT
WITHIN THE COVERAGE OF THE ACT BECAUSE THEY WERE EMPLOYEES OF THE
UNITED STATES, AND THAT, BY VIRTUE OF THE PORTAL-TO-PORTAL ACT OF 1947,
THEY ARE NOT ENTITLED TO RECOVER IN ANY EVENT. 

IN RENDERING JUDGMENT FOR THE RESPONDENT, THE DISTRICT COURT ADOPTED
ITS OPINION IN BARKSDALE V. FORD, BACON & DAVIS, 70 F.SUPP.  690. 
WITHOUT PASSING ON OTHER CONTENTIONS, IT THERE HELD THAT THE FAIR LABOR
STANDARDS ACT WAS NOT APPLICABLE BECAUSE, IN PROCESSING AND ASSEMBLING
MUNITIONS UNDER LIKE CONDITIONS, THE RESPONDENT HAD NOT BEEN ENGAGED
"IN THE PRODUCTION OF GOODS FOR COMMERCE" WITHIN THE MEANING OF THAT
ACT.  THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED, 174 F.2D
730, ON AUTHORITY OF ITS DECISION IN THE POWELL CASE, SUPRA.  WE
GRANTED CERTIORARI.  337 U.S. 955. 

    NO. 58(THE CREEL CASE). 

THIS CASE, FROM THE FIFTH CIRCUIT, PRESENTS SUBSTANTIALLY THE SAME
ISSUE AS DO THE POWELL AND AARON CASES.  THE ISSUE ARISES ON A SUMMARY
JUDGMENT IN FAVOR OF THE RESPONDENT, RENDERED BY THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS ON PLEADINGS AND
SUPPORTING AFFIDAVITS.  HERE THE LONE STAR ORDNANCE PLANT, NEAR
TEXARKANA, TEXAS, WAS OWNED BY THE GOVERNMENT AND OPERATED BY THE
RESPONDENT UNDER A COST-PLUS-A-FIXED-FEE CONTRACT ENTERED INTO WITH THE
UNITED STATES IN JULY, 1941, COMPARABLE IN ITS MATERIAL FEATURES TO
THOSE IN THE POWELL AND AARON CASES.  THE PETITIONERS, SEVERAL HUNDRED
IN NUMBER, WERE EMPLOYED AT THE PLANT IN CAPACITIES SUCH AS THOSE OF
TRUCK DRIVERS, LIFT-FORK OPERATORS, LOADERS AND UNLOADERS.  THEIR
SERVICES WERE USED IN THE PRODUCTION OF MUNITIONS, SUCH AS SHELLS,
BOMBS, DETONATORS AND OTHER ORDNANCE ITEMS.  THE TITLE TO SUBSTANTIALLY
ALL OF THE RAW MATERIAL, WORK IN PROGRESS AND FINISHED PRODUCTS WAS IN
THE GOVERNMENT.  MOST OF THE MATERIALS WERE FURNISHED BY THE GOVERNMENT
AND THE FINISHED PRODUCTS WERE SHIPPED IN ACCORDANCE WITH GOVERNMENT
INSTRUCTIONS ON GOVERNMENT BILLS OF LADING TO MILITARY DESTINATIONS,
USUALLY OUTSIDE OF TEXAS.  THE PETITIONERS SUED FOR OVERTIME PAY
CLAIMED TO BE DUE THEM UNDER THE FAIR LABOR STANDARDS ACT.  QUOTING
FROM THE OPINION OF THE DISTRICT COURT IN THE BARKSDALE CASE, SUPRA,
THE TRIAL COURT GAVE JUDGMENT FOR THE RESPONDENT.  THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT AFFIRMED.  171 F.2D 964.  IT STATED THAT THE
RESPONDENT, ON THE RECORD BEFORE IT, WAS AN AGENCY OF THE GOVERNMENT,
WAS NOT AN INDEPENDENT CONTRACTOR AND WAS NOT ENGAGED IN COMMERCE
WITHIN THE MEANING OF THE FAIR LABOR STANDARDS ACT.  WE GRANTED
CERTIORARI.  337 U.S. 923.  WE HEARD THIS CASE WITH THE POWELL AND
AARON CASES. 

THE UNITED STATES FILED A BRIEF AND ARGUED HERE, AS AMICUS CURIAE, IN
SUPPORT OF THE PETITIONERS ON THE LIMITED ISSUE NOW BEFORE US.

             I. THE PETITIONERS WERE NOT EMPLOYEES OF THE

                UNITED STATES WITHIN THE MEANING OF THE

                      FAIR LABOR STANDARDS ACT. 

IF THE PETITIONERS WERE EMPLOYEES OF THE UNITED STATES, THE FAIR
LABOR STANDARDS ACT EXCLUDES THEM FROM ITS COVERAGE.  FN7  A SIMILAR
DEFENSE IS PRESENTED THROUGH THE CLAIM THAT THE RESPONDENTS WERE NOT
INDEPENDENT CONTRACTORS BUT WERE AGENCIES OF THE UNITED STATES,
REPRESENTING AND BINDING THE UNITED STATES AS THEIR PRINCIPAL IN THE
EMPLOYMENT OF PETITIONERS. 

IN EACH CONTRACT, THERE WAS A PROVISION COMPARABLE TO THE FOLLOWING
QUOTED FROM THE CONTRACT IN THE POWELL CASE: 

"ARTICLE I-E - AUTHORITY OF THE CONTRACTOR. 

"IN CARRYING OUT THE WORK UNDER THIS TITLE I THE CONTRACTOR IS
AUTHORIZED TO DO ALL THINGS NECESSARY OR CONVENIENT IN AND ABOUT THE
OPERATING AND CLOSING DOWN OF THE PLANT, OR ANY PART THEREOF, INCLUDING
(BUT NOT LIMITED TO) THE EMPLOYMENT OF ALL PERSONS ENGAGED IN THE WORK
HEREUNDER, (WHO SHALL BE SUBJECT TO THE CONTROL AND CONSTITUTE
EMPLOYEES OF THE CONTRACTOR), ...." 

EACH CONTRACT IS REPLETE WITH REFERENCES TO THE PERSONS EMPLOYED AS
THE "EMPLOYEES OF THE CONTRACTOR" OR "PERSONS EMPLOYED BY THE
CONTRACTOR." 

THE CONTRACT IN THE POWELL CASE CONTAINED THE FOLLOWING ADDITIONAL
CLAUSE: 

"ARTICLE III-A - STATUS OF CONTRACTOR. 

"IT IS EXPRESSLY UNDERSTOOD AND AGREED BY THE CONTRACTOR AND THE
GOVERNMENT THAT IN THE PERFORMANCE OF THE WORK PROVIDED FOR IN THIS
CONTRACT, THE CONTRACTOR IS AN INDEPENDENT CONTRACTOR AND IN NO WISE AN
AGENT OF THE GOVERNMENT." 

SUCH PROVISIONS ARE PERSUASIVE THAT THE PETITIONERS SHOULD BE
RECOGNIZED HERE AS EMPLOYEES OF THE RESPECTIVE RESPONDENTS AND THE
RESPONDENTS AS INDEPENDENT CONTRACTORS.  THE RESPONDENTS ARGUE,
HOWEVER, THAT THE CONTEXT OF THE TIMES, OTHER PROVISIONS OF THE
CONTRACTS AND THE PRACTICE UNDER THE CONTRACTS DEPRIVE THESE STATEMENTS
OF THEIR ORDINARY MEANING.  WE FIND, ON THE CONTRARY, THAT EACH OF
THESE SOURCES SUPPLIES ADDITIONAL EVIDENCE THAT THESE PROVISIONS
CORRECTLY STATE THE TRUE RELATIONSHIP BETWEEN THE PETITIONERS AND
RESPONDENTS. 

FOR EXAMPLE, WE FIND IN THESE CONTRACTS A REFLECTION OF THE
FUNDAMENTAL POLICY OF THE GOVERNMENT TO REFRAIN, AS MUCH AS POSSIBLE,
FROM DOING ITS OWN MANUFACTURING AND TO USE, AS MUCH AS POSSIBLE (IN
THE PRODUCTION OF MUNITIONS), THE EXPERIENCE IN MASS PRODUCTION AND THE
GENIUS FOR ORGANIZATION THAT HAD MADE AMERICAN INDUSTRY OUTSTANDING IN
THE WORLD.  FN8  THE ESSENCE OF THIS POLICY CALLED FOR PRIVATE, RATHER
THAN PUBLIC, OPERATION OF WAR PRODUCTION PLANTS.  THIS PURPOSE SHINES
THROUGH THE FOLLOWING CLAUSE IN THE CONTRACT IN THE POWELL CASE: 

"WHEREAS, THE GOVERNMENT DESIRES TO HAVE THE CONTRACTOR, AS AN
INDEPENDENT CONTRACTOR ON A COST-PLUS-A-FIXED-FEE BASIS, MAKE ALL
NECESSARY PREPARATIONS FOR THE OPERATION OF SAID PLANT, INCLUDING THE
TRAINING OF OPERATING PERSONNEL  ...  BUT EXCLUDING THE PROCUREMENT AND
SUPERVISION OF THE INSTALLATION OF MANUFACTURING FACILITIES (TO BE
DONE, UNDER A LIKE CONTRACT, BY THE CONTRACTOR'S PARENT CORPORATION,
WESTERN CARTRIDGE COMPANY); AND OPERATE SAID PLANT; ...."    IT WOULD
HAVE BEEN SIMPLE FOR THE GOVERNMENT TO HAVE ORDERED ALL OF THIS
PRODUCTION TO BE DONE UNDER GOVERNMENTAL OPERATION AS WELL AS UNDER
GOVERNMENTAL OWNERSHIP.  TO DO SO, HOWEVER, MIGHT HAVE WEAKENED OUR
SYSTEM OF FREE ENTERPRISE.  WE RELIED UPON THAT SYSTEM AS THE
FOUNDATION OF THE GENERAL INDUSTRIAL SUPREMACY UPON WHICH ULTIMATE
VICTORY MIGHT DEPEND.  IN THIS LIGHT, THE GOVERNMENT DELIBERATELY
SOUGHT TO INSURE PRIVATE OPERATION OF ITS NEW MUNITIONS PLANTS. 

IN THESE GREAT PROJECTS BUILT FOR AND OWNED BY THE GOVERNMENT, IT WAS
ALMOST INEVITABLE THAT THE NEW EQUIPMENT AND MATERIALS WOULD BE
SUPPLIED LARGELY BY THE GOVERNMENT AND THAT THE PRODUCTS WOULD BE OWNED
AND USED BY THE GOVERNMENT.  IT WAS ESSENTIAL THAT THE GOVERNMENT
SUPERVISE CLOSELY THE EXPENDITURES MADE AND THE SPECIFICATIONS AND
STANDARDS ESTABLISHED BY IT.  THESE INCIDENTS OF THE PROGRAM DID NOT,
HOWEVER, PREVENT THE PLACING OF MANAGERIAL RESPONSIBILITY UPON
INDEPENDENT CONTRACTORS. 

THE RELATIONSHIP OF EMPLOYEE AND EMPLOYER BETWEEN THE WORKER AND THE
CONTRACTOR APPEARS NOT ONLY IN THE EXPRESS TERMINOLOGY THAT HAS BEEN
QUOTED.  IT APPEARS IN THE SUBSTANTIAL OBLIGATION OF THE RESPONDENT
CONTRACTORS TO TRAIN THEIR WORKING FORCES, MAKE JOB ASSIGNMENTS, FIX
SALARIES, MEET PAYROLLS, COMPLY WITH STATE WORKMEN'S COMPENSATION LAWS
AND SOCIAL SECURITY REQUIREMENTS AND "TO DO ALL THINGS NECESSARY OR
CONVENIENT IN AND ABOUT THE OPERATING AND CLOSING DOWN OF THE PLANT,
...  "  FN9 

THE INSERTION IN EACH OF THESE CONTRACTS OF THE REPRESENTATIONS AND
SPECIFICATIONS THAT ARE SET FORTH IN THE WALSH-HEALEY ACT WAS, IN
ITSELF, A RECOGNITION BY THE SECRETARY OF WAR OF THE INDEPENDENT
CONTRACTOR STATUS OF THE RESPONDENTS. 

THE PETITIONER-EMPLOYEES AND THE GOVERNMENT EXPRESSLY DISAVOW, IN
THEIR BRIEFS, ANY EMPLOYMENT RELATIONSHIP BETWEEN THEM.  THE MANAGERIAL
DUTIES IMPOSED UPON THE RESPONDENTS WERE THE DUTIES OF EMPLOYERS.  THAT
SUCH DUTIES BE PERFORMED BY PRIVATE CONTRACTORS WAS A VITAL PART OF THE
GOVERNMENT'S GENERAL PRODUCTION POLICY.  IN THE LIGHT OF THESE
CONSIDERATIONS, WE CONCLUDE THAT THE RESPECTIVE RESPONDENTS, IN FORM
AND IN SUBSTANCE, WERE THE EMPLOYERS OF THESE PETITIONERS WITHIN THE
MEANING OF THE FAIR LABOR STANDARDS ACT.  FN10

           II.  PETITIONERS WERE ENGAGED IN THE PRODUCTION OF

           GOODS FOR COMMERCE WITHIN THE MEANING        OF THE

           FAIR LABOR STANDARDS ACT. 

BEFORE DISCUSSING THE DEFINITIONS ASSIGNED BY THE ACT TO THE WORDS
"COMMERCE" AND "GOODS," IT IS HELPFUL TO EXAMINE THE ACT AS A WHOLE IN
THE LIGHT OF THE TIME OF ITS ADOPTION.  IT WAS ADOPTED IN 1938, DURING
AN INDUSTRIAL DEPRESSION.  IT EXPRESSLY STATED ITS PURPOSES.  FN11
THIS COURT HAS FURTHER EXPOUNDED THEM.  FN12  IN THIS ACT, THE PRIMARY
PURPOSE OF CONGRESS WAS NOT TO REGULATE INTERSTATE COMMERCE AS SUCH. 
IT WAS TO ELIMINATE, AS RAPIDLY AS PRACTICABLE, SUBSTANDARD LABOR
CONDITIONS THROUGHOUT THE NATION.  IT SOUGHT TO RAISE LIVING STANDARDS
WITHOUT SUBSTANTIALLY CURTAILING EMPLOYMENT OR EARNING POWER.  ROLAND
ELECTRICAL CO. V. WALLING, 326 U.S. 657, 669-670.  THE GOVERNMENT'S
MUNITIONS PLANTS PROVIDED AN APPROPRIATE PLACE FOR THE BENEFICIAL
APPLICATION OF THE ACT'S STANDARDS OF WORKING CONDITIONS WITHOUT DANGER
OF REDUCED EMPLOYMENT THROUGH LOSS OF BUSINESS.  THIS ACT WOULD FAIL
MATERIALLY IN ITS PURPOSE IF IT DID NOT REACH THE PRODUCERS OF THE
TREMENDOUS VOLUME OF WARTIME GOODS DESTINED FOR INTERSTATE
TRANSPORTATION.  IN 1941-1945 THE MANUFACTURE OF MUNITIONS WAS A MAJOR
SOURCE OF EMPLOYMENT.  WAGES AND HOURS IN THAT INDUSTRY WERE A MAJOR
FACTOR IN FIXING THE LIVING STANDARDS OF AMERICAN LABOR. 

A. THE "TRANSPORTATION" OF MUNITIONS OF THE UNITED STATES TO
DESTINATIONS OUTSIDE OF THE STATE OF THEIR PRODUCTION IS "COMMERCE"
WITHIN THE MEANING OF THE ACT.  THE ACT APPLIES TO "EMPLOYEES ...
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE."  FN13
THE PRECISE QUESTION HERE IS WHETHER THE MUNITIONS WERE PRODUCED FOR
"COMMERCE" WHEN SUCH PRODUCTION WAS FOR TRANSPORTATION OUTSIDE OF THE
STATE AND FOR USE BY THE UNITED STATES IN THE PROSECUTION OF WAR, BUT
NOT FOR SALE OR EXCHANGE. 

"COMMERCE": 

"(B)  'COMMERCE' MEANS TRADE, COMMERCE, TRANSPORTATION, TRANSMISSION,
OR COMMUNICATION AMONG THE SEVERAL STATES OR FROM ANY STATE TO ANY
PLACE OUTSIDE THEREOF."  52 STAT. 1060, 29 U.S.C. SEC. 203(B). 

THIS DEFINITION IS AN EXERCISE BY CONGRESS OF ITS CONSTITUTIONAL
POWER "TO REGULATE COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL
STATES,  ...  "  U.S. CONST. ART. I, SEC. 8, CL. 3.  SUCH POWER HAS
BEEN HELD REPEATEDLY TO INCLUDE THE POWER TO REGULATE INTERSTATE
SHIPMENTS OR TRANSPORTATION AS SUCH, AND NOT MERELY TO REGULATE
SHIPMENTS OR TRANSPORTATION OF ARTICLES THAT ARE INTENDED FOR SALE,
EXCHANGE OR OTHER TRADING ACTIVITIES.  FN14 

CONGRESS COULD HAVE EXPRESSLY EXEMPTED FROM THE ACT EMPLOYEES ENGAGED
IN PRODUCING GOODS FOR INTERSTATE TRANSPORTATION NOT LEADING TO A SALE
OR EXCHANGE.  CONGRESS ALSO COULD HAVE EXEMPTED EMPLOYEES ENGAGED IN
PRODUCING MUNITIONS FOR USE BY THE UNITED STATES IN WAR, RATHER THAN
FOR SALE OR EXCHANGE BY IT.  CONGRESS MIGHT EVEN HAVE EXEMPTED ALL
EMPLOYEES PRODUCING GOODS IN ANY GOVERNMENT-OWNED PLANTS.  HOWEVER,
CONGRESS STATED NO SUCH EXEMPTIONS.  ON THE CONTRARY, CONGRESS
INCLUDED, BY EXPRESS DEFINITION OF TERMS, EMPLOYEES ENGAGED IN THE
PRODUCTION OF GOODS FOR INTERSTATE TRANSPORTATION. 

IN VIEW OF THESE CONSIDERATIONS, WE FIND NO MERIT IN AN
INTERPRETATION OF THE ACT WHICH WOULD EXCLUDE FROM ITS COVERAGE THOSE
EMPLOYEES WHO WERE ENGAGED IN THE PRODUCTION OF MUNITIONS FOR
INTERSTATE TRANSPORTATION FOR USE OR CONSUMPTION, AS DISTINGUISHED FROM
TRANSPORTATION OF THEM FOR SALE OR EXCHANGE. 

B. THE MUNITIONS PRODUCED WERE "GOODS" WITHIN THE MEANING OF THE FAIR
LABOR STANDARDS ACT.  THE RESPONDENTS ARGUE THAT, EVEN THOUGH THE
MUNITIONS WERE PRODUCED FOR COMMERCE, THEY WERE NOT "GOODS" WITHIN THE
MEANING OF THE ACT.  SECTION 3(I) DEFINES "GOODS" AS FOLLOWS: 

"(I)  'GOODS' MEANS GOODS (INCLUDING SHIPS AND MARINE EQUIPMENT),
WARES, PRODUCTS, COMMODITIES, MERCHANDISE, OR ARTICLES OR SUBJECTS OF
COMMERCE OF ANY CHARACTER, OR ANY PART OR INGREDIENT THEREOF, BUT DOES
NOT INCLUDE GOODS AFTER THEIR DELIVERY INTO THE ACTUAL PHYSICAL
POSSESSION OF THE ULTIMATE CONSUMER THEREOF OTHER THAN A PRODUCER,
MANUFACTURER, OR PROCESSOR THEREOF."  52 STAT. 1061, 29 U.S.C. SEC.
203(I). 

RESPONDENTS CLAIM THAT THIS LANGUAGE EXCLUDES THE PETITIONERS FROM
THE COVERAGE OF THE ACT BECAUSE THE PETITIONERS WERE ENGAGED IN
PRODUCING MUNITIONS WHICH THEREAFTER, AND PRIOR TO THEIR INTERSTATE
TRANSPORTATION, WERE TO BE DELIVERED TO THE UNITED STATES AS THE
ULTIMATE CONSUMER.  THIS INTERPRETATION WOULD DEPRIVE THE ORIGINAL
JURISDICTIONAL FACT - THAT AT THE TIME THE MUNITIONS WERE PRODUCED THEY
WERE INTENDED FOR INTERSTATE TRANSPORTATION - OF ITS COVERING EFFECT
MERELY BECAUSE THOSE MUNITIONS, UPON A LATER DELIVERY TO THE UNITED
STATES, WOULD THEN CEASE TO BE "GOODS" WITHIN THE MEANING OF THE ACT. 

WE BELIEVE THAT THE CRUCIAL FACT WHICH ESTABLISHES THE COVERAGE OF
THE ACT IS THE STATUS OF THE MUNITIONS, AS "GOODS," DURING THE TIME
THEY WERE BEING PRODUCED.  THE LITERAL MEANING OF THE EXCLUSIONARY
CLAUSE IN SEC. 3(I), AND THAT WHICH BEST SERVES THE PURPOSES OF THE
ACT, IS MERELY THAT, AFTER THE PRODUCTS SHALL HAVE BEEN DELIVERED INTO
THE ACTUAL PHYSICAL POSSESSION OF THEIR ULTIMATE CONSUMER, THEY THEN
SHALL CEASE TO BE "GOODS."  THIS RETAINS THE IMPORTANT EFFECT THAT,
THEREAFTER, IT IS NOT A VIOLATION OF SEC. 15(A)(1)  FN15  FOR THE
ULTIMATE CONSUMER TO TRANSPORT THE PRODUCTS OUTSIDE OF THE STATE.  THIS
INTERPRETATION WAS ADOPTED BY THE WAGE AND HOUR ADMINISTRATOR.  1940 WH
MAN.  131, 133.  IT WAS READOPTED WITHOUT CHANGE IN THE JULY, 1947,
REVISION OF THE ADMINISTRATOR'S INTERPRETATIONS.  12 FED. REG. 4585, 29
C.F.R. SEC. 776.7(H).  FN16 

WE HOLD, THEREFORE, THAT THE FACT THAT THE MUNITIONS WERE PRODUCED
FOR DELIVERY, INTO THE ACTUAL PHYSICAL POSSESSION OF THE UNITED STATES
AS THEIR ULTIMATE CONSUMER, BEFORE THEIR SUBSEQUENT INTERSTATE
SHIPMENT, DOES NOT DEPRIVE THE EMPLOYEES WHO PRODUCED THE MUNITIONS OF
THE BENEFITS OF THE FAIR LABOR STANDARDS ACT.  IT IS NOT MATERIAL
WHETHER SUCH INTERSTATE TRANSPORTATION WAS TO TAKE PLACE BEFORE OR
AFTER THE DELIVERY OF THE MUNITIONS TO THE UNITED STATES.  IN EITHER
EVENT, THE EMPLOYEES WERE ENGAGED IN THE PRODUCTION OF "GOODS" FOR
"COMMERCE."  TO HOLD OTHERWISE WOULD RESTRICT THE ACT NOT ONLY
ARBITRARILY BUT ALSO INCONSISTENTLY WITH ITS BROAD PURPOSES. 

III.  THE WALSH-HEALEY ACT AND THE FAIR LABOR

              STANDARDS ACT ARE NOT MUTUALLY EXCLUSIVE. 

THE WALSH-HEALEY ACT WAS ADOPTED ABOUT ONE YEAR AFTER THE NATIONAL
INDUSTRIAL RECOVERY ACT  FN17 HAD BEEN DECLARED UNCONSTITUTIONAL. 
SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495.  SEEKING THEN TO
REGULATE WAGES AND HOURS OF EMPLOYEES, THE WALSH-HEALEY ACT KEPT WITHIN
A NARROW FIELD OF ASSURED CONSTITUTIONALITY.  IT PRESCRIBED THAT, IN
GOVERNMENT CONTRACTS FOR THE MANUFACTURE OR FURNISHING OF MATERIALS,
SUPPLIES, ARTICLES AND EQUIPMENT IN ANY AMOUNT EXCEEDING $10,000, THE
CONTRACTOR PAY ITS EMPLOYEES NOT LESS THAN THE MINIMUM WAGES DETERMINED
BY THE SECRETARY OF LABOR TO BE THE PREVAILING MINIMUM WAGES FOR
PERSONS EMPLOYED ON SIMILAR WORK IN THE LOCALITY.  IT PRESCRIBED ALSO
THAT NO SUCH EMPLOYEES BE PERMITTED TO WORK IN EXCESS OF EIGHT HOURS IN
ANY ONE DAY OR IN EXCESS OF 40 HOURS IN ANY ONE WEEK,  FN18  THAT NO
MALE PERSON UNDER 16 YEARS OF AGE, NO FEMALE PERSON UNDER 18 YEARS OF
AGE AND NO CONVICT LABOR BE EMPLOYED BY THE CONTRACTOR, AND THAT NO
PART OF THE CONTRACT BE PERFORMED OR ANY OF THE MATERIAL, SUPPLIES,
ARTICLES OR EQUIPMENT BE MANUFACTURED OR FABRICATED UNDER WORKING
CONDITIONS UNSANITARY, HAZARDOUS OR DANGEROUS TO THE HEALTH AND SAFETY
OF THE EMPLOYEES. 

THE FAIR LABOR STANDARDS ACT OF 1938 WAS PASSED NEARLY TWO YEARS
LATER BY THE NEXT CONGRESS.  IT PRESENTED A DIFFERENT AND BROADER
APPROACH.  IT WAS NOT RESTRICTED TO PUBLIC CONTRACTS.  THE SPONSOR OF
THE BILL STATED THAT IT WAS INTENDED TO CARRY OUT THE SUGGESTIONS MADE
BY THE PRESIDENT IN HIS MESSAGE TO CONGRESS.  81 CONG. REC. 4960,
4961(1937).  IN THAT MESSAGE, THE PRESIDENT SAID: 

"  ...  TO PROTECT THE FUNDAMENTAL INTERESTS OF FREE LABOR AND A FREE
PEOPLE WE PROPOSE THAT ONLY GOODS WHICH HAVE BEEN PRODUCED UNDER
CONDITIONS WHICH MEET THE MINIMUM STANDARDS OF FREE LABOR SHALL BE
ADMITTED TO INTERSTATE COMMERCE.  GOODS PRODUCED UNDER CONDITIONS WHICH
DO NOT MEET RUDIMENTARY STANDARDS OF DECENCY SHOULD BE REGARDED AS
CONTRABAND AND OUGHT NOT TO BE ALLOWED TO POLLUTE THE CHANNELS OF
INTERSTATE TRADE." 

THE ACT DECLARED ITS PURPOSES IN BOLD AND SWEEPING TERMS.  FN19
BREADTH OF COVERAGE WAS VITAL TO ITS MISSION.  ITS SCOPE WAS STATED IN
TERMS OF SUBSTANTIAL UNIVERSALITY AMPLY BROAD ENOUGH TO INCLUDE
EMPLOYEES OF PRIVATE CONTRACTORS WORKING ON PUBLIC PROJECTS AS WELL AS
ON PRIVATE PROJECTS.  WHERE EXCEPTIONS WERE MADE, THEY WERE NARROW AND
SPECIFIC.  IT INCLUDED AS EMPLOYEES "ANY INDIVIDUAL EMPLOYED BY AN
EMPLOYER" (SEC. 3(E)), AND DEFINED AN EMPLOYER SO AS AMPLY TO COVER AN
INDIVIDUAL OR CORPORATION EMPLOYING PERSONS ON PUBLIC CONTRACTS, WHILE
EXPRESSLY EXCLUDING, AS AN EMPLOYER, "THE UNITED STATES OR ANY STATE OR
POLITICAL SUBDIVISION OF A STATE,  ...  " (SEC. 3(A) AND (D)).  IT
DEVOTED SEC. 13 TO LISTING EXEMPTIONS OF SPECIFIC CLASSES OF
EMPLOYEES.  FOR EXAMPLE, IT EXEMPTED ANY SEAMAN, ANY EMPLOYEE OF A
CARRIER BY AIR SUBJECT TO TITLE II OF THE RAILWAY LABOR ACT AND ANY
EMPLOYEE EMPLOYED IN AGRICULTURE.  IT EXEMPTED CERTAIN EMPLOYEES UNDER
SEC. 204 OF THE MOTOR CARRIER ACT, 1935,  FN20  BUT LIMITED THEIR
EXEMPTION TO THE MAXIMUM HOUR PROVISIONS IN SEC. 7.  IT ALSO EXEMPTED
ANY EMPLOYEE OF AN EMPLOYER SUBJECT TO PART I OF THE INTERSTATE
COMMERCE ACT.  SUCH SPECIFICITY IN STATING EXEMPTIONS STRENGTHENS THE
IMPLICATION THAT EMPLOYEES NOT THUS EXEMPTED, SUCH AS EMPLOYEES OF
PRIVATE CONTRACTORS UNDER PUBLIC CONTRACTS, REMAIN WITHIN THE ACT. 

THE ACT INCLUDES THE FOLLOWING AFFIRMATIVE STATEMENT AS TO THE
RELATION OF ITS PROVISIONS TO OTHER LAWS:

"RELATION TO OTHER LAWS 

"SEC. 18.  NO PROVISION OF THIS ACT OR OF ANY ORDER THEREUNDER SHALL
EXCUSE NONCOMPLIANCE WITH ANY FEDERAL OR STATE LAW OR MUNICIPAL
ORDINANCE ESTABLISHING A MINIMUM WAGE HIGHER THAN THE MINIMUM WAGE
ESTABLISHED UNDER THIS ACT OR A MAXIMUM WORKWEEK LOWER THAN THE MAXIMUM
WORKWEEK ESTABLISHED UNDER THIS ACT, AND NO PROVISION OF THIS ACT
RELATING TO THE EMPLOYMENT OF CHILD LABOR SHALL JUSTIFY NONCOMPLIANCE
WITH ANY FEDERAL OR STATE LAW OR MUNICIPAL ORDINANCE ESTABLISHING A
HIGHER STANDARD THAN THE STANDARD ESTABLISHED UNDER THIS ACT.  NO
PROVISION OF THIS ACT SHALL JUSTIFY ANY EMPLOYER IN REDUCING A WAGE
PAID BY HIM WHICH IS IN EXCESS OF THE APPLICABLE MINIMUM WAGE UNDER
THIS ACT, OR JUSTIFY ANY EMPLOYER IN INCREASING HOURS OF EMPLOYMENT
MAINTAINED BY HIM WHICH ARE SHORTER THAN THE MAXIMUM HOURS APPLICABLE
UNDER THIS ACT."  52 STAT. 1069, 29 U.S.C. SEC. 218. 

THE ABOVE LANGUAGE DISCLOSES A CONGRESSIONAL AWARENESS THAT THE
COVERAGE OF THE FAIR LABOR STANDARDS ACT OVERLAPS THAT OF OTHER FEDERAL
LEGISLATION AFFECTING LABOR STANDARDS.  IN OTHER ENACTMENTS WE FIND
COLLATERAL RECOGNITION THAT THE WALSH-HEALEY ACT MIGHT APPLY TO THE
SAME EMPLOYMENT AS THE FAIR LABOR STANDARDS ACT.  AN AMENDMENT TO THE
WALSH-HEALEY ACT, IN 1942, RECOGNIZED THIS POSSIBILITY.  FN21
SIMILARLY, THE PORTAL-TO-PORTAL ACT OF 1947 INDICATED THAT PERSONS
EMPLOYED BY GOVERNMENT CONTRACTORS, AND THUS PROTECTED BY THE WALSH
HEALEY ACT, WERE ENTITLED TO THE BENEFITS OF THE FAIR LABOR STANDARDS
ACT.  FN22 

DESPITE EVIDENCE THAT THE TWO STATUTES DEFINE OVERLAPPING AREAS,
RESPONDENTS CONTEND THAT THEY SHOULD BE CONSTRUED AS BEING MUTUALLY
EXCLUSIVE.  THERE HAS BEEN NO PRESENTATION OF INSTANCES, HOWEVER, WHERE
COMPLIANCE WITH ONE ACT MAKES IT IMPOSSIBLE TO COMPLY WITH THE OTHER. 
THERE HAS BEEN NO DEMONSTRATION OF THE IMPOSSIBILITY OF DETERMINING, IN
EACH INSTANCE, THE RESPECTIVE WAGE REQUIREMENTS UNDER EACH ACT AND THEN
APPLYING THE HIGHER REQUIREMENT AS SATISFYING BOTH. 

THE GOVERNMENT HAS PRESENTED, AS A CONSIDERED ANALYSIS OF THE
OVERLAPPING EFFECTS OF THESE ACTS, EXCERPTS FROM THE MANUAL OF
INSTRUCTIONS FOR THE ADMINISTRATION OF CONTRACTS (WAR DEPARTMENT,
OFFICE OF THE CHIEF OF ORDNANCE, 1941).  THESE ARE PUBLISHED IN THE
APPENDIX TO THE BRIEF OF THE UNITED STATES.  THEIR FORTHRIGHT TREATMENT
AND DETAILED SUGGESTED SOLUTIONS OF THE PRACTICAL ASPECTS OF THE
SUPPLEMENTARY USE OF THE TWO ACTS ARE IMPRESSIVE. 

IN SOME, AND PROBABLY MOST, INSTANCES, THE "PREVAILING MINIMUM WAGES"
REQUIRED BY THE WALSH-HEALEY ACT WERE MORE ADVANTAGEOUS TO EMPLOYEES
THAN THE MINIMUM WAGES PRESCRIBED BY THE FAIR LABOR STANDARDS ACT AT
THE TIMES HERE UNDER REVIEW.  FN23  ON THE OTHER HAND, THE REMEDIAL
PROCEDURE UNDER THE LATER ACT WAS GENERALLY MORE ADVANTAGEOUS TO
EMPLOYEES THAN THE PROCEDURE UNDER THE EARLIER ACT. 

WE CONCLUDE THAT THE ACTS ARE NOT MUTUALLY EXCLUSIVE.  THE
APPLICABILITY OF THE WALSH-HEALEY ACT TO THE CONTRACTS BEFORE US
THEREFORE DOES NOT PRECLUDE THE APPLICATION OF THE FAIR LABOR STANDARDS
ACT TO EMPLOYEES UNDER THE SAME CONTRACTS.  WE FIND THE ACTS TO BE
MUTUALLY SUPPLEMENTARY. 

IV.  NEITHER THE ACT OF JULY 2, 1940, NOR THE ACTION   OF

         THE SECRETARY OF WAR TAKEN PURSUANT TO IT      EXCLUDES

           THE APPLICABILITY OF THE FAIR   LABOR

           STANDARDS ACT. 

WE FIND IN THE ACT OF JULY 2, 1940,  FN24  NO SUCH RECOGNITION OF THE
UNIQUENESS OF WAR DEPARTMENT CONTRACTS FOR THE PRIVATE OPERATION OF
GOVERNMENT-OWNED MUNITIONS PLANTS AS IS CLAIMED IN THE CONCURRING
OPINION BELOW IN THE POWELL CASE.  FN25  WITHOUT MORE SPECIFIC
PROVISIONS THAN THIS ACT CONTAINS, WE CANNOT INTERPRET IT AS EXCLUDING,
OR AS GRANTING, AUTHORITY TO EXECUTIVE OFFICERS TO EXCLUDE, EMPLOYEES
IN SUCH PLANTS FROM THE BENEFITS OF THE GENERAL WAGE AND HOUR
PROVISIONS WHICH CONGRESS HAS ESTABLISHED IN THE WALSH-HEALEY ACT AND
MORE FULLY AND RECENTLY IN THE FAIR LABOR STANDARDS ACT.    THE
PURPOSES OF THIS TEMPORARY ACT OF 1940 WERE THE CLARIFICATION OF THE
CONTRACT-MAKING AUTHORITY OF THE WAR DEPARTMENT UNDER EXISTING GENERAL
LAW, WITH SUCH EXCEPTIONS AS WERE EXPRESSLY NOTED, THE ELIMINATION OF
CERTAIN HAZARDS, AND THE MAKING OF ADDITIONAL GRANTS OF EMERGENCY
AUTHORITY TO THE PRESIDENT.  FOR EXAMPLE, THIS ACT REFERRED EXPRESSLY
TO THE WALSH-HEALEY ACT AS APPLICABLE TO THE NEW WAR DEPARTMENT
CONTRACTS WHEN ENTERED INTO WITH OR WITHOUT ADVERTISING.  THIS WAS
HELPFUL BECAUSE, WHEN THE WALSH-HEALEY ACT WAS ADOPTED, THE CONTRACTS
TO WHICH IT APPLIED DID NOT INCLUDE CONTRACTS NEGOTIATED WITHOUT
ADVERTISING FOR COMPETITIVE BIDS.  SIMILARLY, THE 1940 ACT EXPRESSLY
SUSPENDED CERTAIN SPECIFIC LIMITATIONS ON THE WAR DEPARTMENT, E.G.,
REQUIREMENTS OF THE CONGRESSIONAL APPROVAL OF ESTIMATES AND THE MAKING
OF APPROPRIATIONS PRIOR TO UNDERTAKING CONSTRUCTION OF CERTAIN
BUILDINGS (SEC. 1(A)), RESTRICTIONS ON LEASING (SEC. 1(B)),
RESTRICTIONS ON THE ASSIGNMENT OF PERSONNEL (SEC. 2(B)), LIMITATIONS ON
THE NUMBER OF SERVICEABLE AIRCRAFT (SEC. 3), AND RESTRICTIONS AS TO
CIVIL SERVICE EMPLOYEES (SEC. 4(A)).  NO SUGGESTION WAS MADE OF A
SUSPENSION OF PART OR ALL OF THE FAIR LABOR STANDARDS ACT, NOR WAS
ANYTHING AUTHORIZED THAT WOULD VIOLATE THAT ACT. 

THE SINGLE REFERENCE MADE IN THE 1940 ACT TO THE WALSH-HEALEY ACT WAS
TO INSURE THE APPLICABILITY OF THE LATTER ACT TO NEGOTIATED CONTRACTS. 
THIS APPEARS FROM THE FOLLOWING REVEALING STATEMENT MADE ON THE FLOOR
OF THE SENATE BY SENATOR WAGNER, THE AUTHOR OF THE AMENDMENT CONTAINING
THE REFERENCE: 

"A QUESTION HAS ARISEN - AND THE AMENDMENT IS SIMPLY TO REMOVE THE
AMBIGUITY - AS TO WHETHER THE WALSH-HEALEY ACT, WHICH IS NOW DEFINITELY
APPLICABLE TO A CONTRACT FOR THE PURCHASE OF SUPPLIES AS A RESULT OF
ADVERTISING, WILL ALSO APPLY TO A NEGOTIATED CONTRACT.  ... 

"  ...  UNLESS THIS AMENDMENT IS ADOPTED WE WOULD HAVE THIS ANOMALOUS
SITUATION:  UNDER A CONTRACT ENTERED INTO WITH THE GOVERNMENT AS THE
RESULT OF PUBLIC BIDDING ONE SET OF MINIMUM WAGES, THAT IS, THE
PREVAILING WAGES  WOULD BE APPLIED, WHEREAS UNDER ANOTHER CONTRACT
ENTERED INTO AS A RESULT OF NEGOTIATIONS, A MUCH LOWER MINIMUM WAGE
WOULD BE PAID, THAT IS, THE FLAT MINIMUM UNDER THE WAGE AND HOUR ACT
(THE FAIR LABOR STANDARDS ACT).  THIS SITUATION WOULD PRESENT AN
OPPORTUNITY FOR EXPLOITATION, SINCE A CONTRACTOR UNDER A NEGOTIATED
CONTRACT MIGHT BE PAYING WAGES IN SOME INSTANCES 25 PERCENT TO 75
PERCENT BELOW THOSE REQUIRED UNDER THE HEALEY-WALSH ACT.  I AM SURE
THAT WE WOULD NOT WANT TO INVITE ANY SUCH EXPLOITATION."  86 CONG. REC.
7924(1940). 

SEE ALSO, 86 CONG. REC. 7839-7843, AND H.R. REP. NO. 2685, 76TH
CONG., 3D SESS. 1(1940). 

WE HAVE CONSIDERED THE OTHER CONTENTIONS OF THE RESPONDENTS,
INCLUDING THE WEIGHT TO BE GIVEN TO THE STATEMENT OF LABOR POLICY
ISSUED BY THE WAR AND NAVY DEPARTMENTS IN 1942,  FN26  BUT WE DO NOT
FIND IN THEM A CONVINCING REFUTATION OF THE FOREGOING CONCLUSIONS.  WE,
ACCORDINGLY, FIND THAT THE FAIR LABOR STANDARDS ACT OF 1938, AS
AMENDED, IS APPLICABLE TO THE ISSUES PRESENTED IN EACH OF THE INSTANT
CASES.  WE DO NOT REACH THE VALIDITY OF THE INDIVIDUAL CLAIMS OF THE
PETITIONERS MADE IN RELIANCE UPON THAT ACT. 

IN NO. 96, POWELL ET AL. V. THE UNITED STATES CARTRIDGE COMPANY, THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS REMANDED
TO THAT COURT FOR FURTHER CONSIDERATION OF THE ERRORS ASSERTED ON
APPEAL BUT NOT REVIEWED BY THAT COURT. 

IN NO. 79, AARON ET AL. V. FORD, BACON AND DAVIS, AND IN NO. 58,
CREEL V. LONE STAR DEFENSE CORPORATION, THE JUDGMENTS OF THE RESPECTIVE
COURTS OF APPEALS ARE REVERSED AND THE CAUSES ARE REMANDED TO THE
RESPECTIVE DISTRICT COURTS FOR FURTHER PROCEEDINGS IN CONFORMITY WITH
THIS OPINION.  IT IS SO ORDERED. 

FN1  52 STAT. 1060, ET SEQ., 53 STAT. 1266, 54 STAT. 615-616, 55
STAT. 756, 61 STAT. 87, 63 STAT. 446, 910-920, 29 U.S.C. SECS. 201-219,
29 U.S.C. (SUPP. III) SECS. 201-217. 

FN2  CONGRESS CHARGED THE WAR AND NAVY DEPARTMENTS WITH THE OPERATION
OF ABOUT 100 GIANT GOVERNMENT-OWNED MUNITIONS PLANTS.  THOSE
DEPARTMENTS HAD THE OPTION OF OPERATING THEM THEMSELVES OR THROUGH
COMMERCIAL CONTRACTORS.  SO AS TO UTILIZE FULLY THE LABOR AND
MANAGEMENT RESOURCES OF THE NATION AND TO MINIMIZE ENCROACHMENT UPON
ITS INDUSTRIAL STRUCTURE, BOTH DEPARTMENTS CHOSE THE LATTER COURSE.  AS
TO THE GENERAL WAR PRODUCTION POLICIES, SEE LICHTER V. UNITED STATES,
334 U.S. 742, 767-768.  OUT OF 143 BILLION DOLLARS OF CONTRACTS MADE BY
THE WAR DEPARTMENT BETWEEN 1941 AND 1946, OVER 40 BILLIONS WERE COST
PLUS CONTRACTS.  OUT OF 68 BILLION DOLLARS OF NAVY CONTRACTS, 18
BILLIONS WERE COST-PLUS CONTRACTS.  HEARINGS BEFORE SUBCOMMITTEE OF THE
SENATE COMMITTEE ON THE JUDICIARY ON S. NO. 70, 80TH CONG., 1ST SESS.
422-423, 624-626(1947).  THE QUOTATION IN THE TEXT IS FROM THE CONTRACT
IN THIS CASE, SEE P. 505, INFRA. 

FN3  54 STAT. 712-714, 50 U.S.C. APP. SECS. 1171, 1172. 

FN4  ARTICLE III-F, P3 OF THE CONTRACT STATED THAT: 

"THE TITLE TO ALL WORK UNDER THIS CONTRACT, COMPLETED OR IN THE
COURSE OF CONSTRUCTION OR MANUFACTURE, AND TO ALL THE AMMUNITION
MANUFACTURED OR IN THE PROCESS OF BEING MANUFACTURED, SHALL BE IN THE
GOVERNMENT.  LIKEWISE, UPON DELIVERY AT THE SITE OF THE WORK, OR AT AN
APPROVED STORAGE SITE, TITLE TO ALL PURCHASED MATERIALS, TOOLS,
MACHINERY, EQUIPMENT AND SUPPLIES, FOR WHICH THE CONTRACTOR SHALL BE
ENTITLED TO BE REIMBURSED UNDER TITLE II HEREOF, SHALL VEST IN THE
GOVERNMENT.  THE GOVERNMENT SHALL BEAR ALL RISK INCIDENT TO SUCH
OWNERSHIP.  THESE PROVISIONS AS TO TITLE BEING VESTED IN THE GOVERNMENT
SHALL NOT OPERATE HOWEVER, TO RELIEVE THE CONTRACTOR FROM ANY DUTIES
IMPOSED UPON IT UNDER THE TERMS OF THIS CONTRACT." 

FN5  ADOPTED JUNE 30, 1936, 49 STAT. 2036, ET SEQ., 41 U.S.C. SEC.
35, ET SEQ. 

FN6  61 STAT. 84-90, 29 U.S.C. (SUPP. III) SECS. 216, 251-262. 

FN7  "SEC.  3.  AS USED IN THIS ACT - 

     .         .         .         .         . 

"(D)  'EMPLOYER' INCLUDES ANY PERSON ACTING DIRECTLY OR INDIRECTLY IN
THE INTEREST OF AN EMPLOYER IN RELATION TO AN EMPLOYEE BUT SHALL NOT
INCLUDE THE UNITED STATES OR ANY STATE OR POLITICAL SUBDIVISION OF A
STATE,  ... 

"(E)  'EMPLOYEE' INCLUDES ANY INDIVIDUAL EMPLOYED BY AN EMPLOYER." 
52 STAT. 1060, 29 U.S.C. SEC. 203(D) AND (E). 

FN8  FOR A REVIEW OF THE DEVELOPMENT OF THE WAR PRODUCTION PROGRAM
AND ITS RELIANCE ON PRIVATE INDUSTRY, SEE LICHTER V. UNITED STATES, 334
U.S. 742, 758-766. 

FN9  IF THE WORKERS WERE EMPLOYEES OF THE UNITED STATES, STATE
WORKMEN'S COMPENSATION LAWS AND OTHER COMPARABLE LAWS WOULD BE
INAPPLICABLE.  IN THE ST. LOUIS AND ARKANSAS ORDNANCE PLANTS THE
CONTRACTOR, IN ORDER TO EXPLAIN THE RELATIONSHIPS BEING ESTABLISHED,
ISSUED A BOOKLET TO EACH NEW EMPLOYEE.  THE MANUAL THUS USED AT THE ST.
LOUIS PLANT IS ENTITLED "YOUR JOB WITH THE ST. LOUIS ORDNANCE PLANT." 
IT OPENS WITH THE STATEMENT "EVERY PROSPECTIVE EMPLOYEE OF UNITED
STATES CARTRIDGE COMPANY SHOULD READ THIS BOOKLET DESCRIBING THE
COMPANY'S POLICY AND PROCEDURE."  IT DESCRIBES THE RELATIONSHIP BETWEEN
THE UNITED STATES GOVERNMENT, THE COMPANY AND "OUR EMPLOYEES."  FOR
EXAMPLE, IT SAYS "THE COMPANY  ...  IS RESPONSIBLE TO THE UNITED STATES
GOVERNMENT FOR AMMUNITION PRODUCTION, TO THE CITY OF ST. LOUIS IN
MAINTAINING A SUCCESSFUL CIVIC ENTERPRISE, AND TO OUR EMPLOYEES, FOR
THE ESTABLISHMENT OF WORKING CONDITIONS CONDUCIVE TO THE HEALTH AND
HAPPINESS OF EACH MAN AND WOMAN EMPLOYED IN THE PLANT."  IT EXPLAINS
THE FINANCIAL BASIS OF ITS COST-PLUS CONTRACT OF MANAGEMENT AS FOLLOWS:
"IN THE FINAL ANALYSIS, YOUR WAGES COME FROM THE UNITED STATES
GOVERNMENT, WHOSE ONLY SOURCE OF INCOME IS TAXES COLLECTED FROM YOU AND
ALL OTHER CITIZENS.  THE UNITED STATES CARTRIDGE COMPANY IS MERELY
MANAGING THE PLANT FOR THE FEDERAL GOVERNMENT."  IT ADDS THAT "WHEN
PRODUCTION DEMANDS REQUIRE A LONGER WORK DAY, OR LONGER WORK WEEK, THE
COMPANY WILL PAY THE LEGAL OVERTIME RATE AS PROVIDED UNDER THE WALSH
HEALEY ACT, AND THE FAIR LABOR STANDARDS ACT." 

FN10  SEE THE DISSENTING OPINION OF CIRCUIT JUDGE HUTCHESON IN
KENNEDY V. SILAS MASON CO., 164 F.2D 1016, 1019-1920(C.A.5TH CIR.), THE
REASONING OF WHICH IS IN ACCORD WITH OUR DECISION:  "HERE THE WHOLE
ELABORATE SYSTEM WAS DESIGNED AND OPERATED SO THAT THE UNITED STATES
SHOULD NOT BE THE EMPLOYER."  ID. AT P. 1020.  CF. CURRY V. UNITED
STATES, 314 U.S. 14, AND ALABAMA V. KING & BOOZER, 314 U.S. 1.  THOSE
CASES HELD THAT THE CONTRACTORS, UNDER GOVERNMENT COST-PLUS-A-FIXED-FEE
CONTRACTS, WERE, AS SUCH, SUBJECT TO STATE USE TAXES AND STATE SALES
TAXES. 

FN11  "SEC.  2.  (A)  THE CONGRESS HEREBY FINDS THAT THE EXISTENCE,
IN INDUSTRIES ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE, OF LABOR CONDITIONS DETRIMENTAL TO THE MAINTENANCE OF THE
MINIMUM STANDARD OF LIVING NECESSARY FOR HEALTH, EFFICIENCY, AND
GENERAL WELL-BEING OF WORKERS (1) CAUSES COMMERCE AND THE CHANNELS AND
INSTRUMENTALITIES OF COMMERCE TO BE USED TO SPREAD AND PERPETUATE SUCH
LABOR CONDITIONS AMONG THE WORKERS OF THE SEVERAL STATES; (2) BURDENS
COMMERCE AND THE FREE FLOW OF GOODS IN COMMERCE; (3) CONSTITUTES AN
UNFAIR METHOD OF COMPETITION IN COMMERCE; (4) LEADS TO LABOR DISPUTES
BURDENING AND OBSTRUCTING COMMERCE AND THE FREE FLOW OF GOODS IN
COMMERCE; AND (5) INTERFERES WITH THE ORDERLY AND FAIR MARKETING OF
GOODS IN COMMERCE. 

"(B)  IT IS HEREBY DECLARED TO BE THE POLICY OF THIS ACT, THROUGH THE
EXERCISE BY CONGRESS OF ITS POWER TO REGULATE COMMERCE AMONG THE
SEVERAL STATES, TO CORRECT AND AS RAPIDLY AS PRACTICABLE TO ELIMINATE
THE CONDITIONS ABOVE REFERRED TO IN SUCH INDUSTRIES WITHOUT
SUBSTANTIALLY CURTAILING EMPLOYMENT OR EARNING POWER."  52 STAT. 1060,
29 U.S.C. SEC. 202. 

FN12  WHILE ONE MAJOR MEANS OF SPREADING SUBSTANDARD LABOR CONDITIONS
WAS RECOGNIZED TO BE THROUGH THE LOWERING OF PRICES FOR GOODS PRODUCED
UNDER SUBSTANDARD CONDITIONS, THERE HAS BEEN NO ATTEMPT IN THE ACT, OR
IN THIS COURT'S DISCUSSION OF THE ACT, TO LIMIT ITS COVERAGE TO
EMPLOYEES ENGAGED IN PRODUCING GOODS SOLELY FOR COMPETITIVE MARKETS. 
AN ANNOUNCED PURPOSE OF THE ACT WAS TO RAISE LIVING STANDARDS AND TO
ELIMINATE "LABOR CONDITIONS DETRIMENTAL TO THE MAINTENANCE OF THE
MINIMUM STANDARD OF LIVING NECESSARY FOR HEALTH, EFFICIENCY, AND
GENERAL WELL-BEING OF WORKERS ...  "  (SEC. 2(A), SEE NOTE 11, SUPRA.)
THAT PURPOSE WAS CONCERNED DIRECTLY WITH ANY WIDESPREAD EXISTENCE OF
SUBSTANDARD WAGES, HOURS OR WORKING CONDITIONS.  THAT SUCH CONDITIONS
COULD BE REACHED BY CONGRESS THROUGH ITS REGULATION OF INTERSTATE
TRANSPORTATION OF THE PRODUCTS OF THOSE CONDITIONS HAD BEEN FORCEFULLY
STATED IN THE DISSENT OF MR. JUSTICE HOLMES IN HAMMER V. DAGENHART, 247
U.S. 251, 277-281.  IN 1941, THIS COURT EXPRESSLY APPROVED THAT
REASONING AND UPHELD THE CONSTITUTIONALITY OF THE FAIR LABOR STANDARDS
ACT.  UNITED STATES V. DARBY, 312 U.S. 100, 115-117.  THE LANGUAGE OF
MR. JUSTICE STONE IN SPEAKING FOR THE COURT IN THAT CASE IS
SIGNIFICANT.  IT EXTENDED TO INTERSTATE SHIPMENTS AND TRANSPORTATION OF
PROSCRIBED PRODUCTS IN GENERAL: 

"WHILE MANUFACTURE IS NOT OF ITSELF INTERSTATE COMMERCE, THE SHIPMENT
OF MANUFACTURED GOODS INTERSTATE IS SUCH COMMERCE AND THE PROHIBITION
OF SUCH SHIPMENT BY CONGRESS IS INDUBITABLY A REGULATION OF THE
COMMERCE.  ...  IT IS CONCEDED THAT THE POWER OF CONGRESS TO PROHIBIT
TRANSPORTATION IN INTERSTATE COMMERCE INCLUDES NOXIOUS ARTICLES,
LOTTERY CASE, SUPRA (188 U.S. 321); HIPOLITE EGG CO. V. UNITED STATES,
220 U.S. 45; CF. HOKE V. UNITED STATES, SUPRA (227 U.S. 308); STOLEN
ARTICLES, BROOKS V. UNITED STATES, 267 U.S. 432; KIDNAPPED PERSONS,
GOOCH V. UNITED STATES, 297 U.S. 124, AND ARTICLES SUCH AS INTOXICATING
LIQUOR OR CONVICT MADE GOODS, TRAFFIC IN WHICH IS FORBIDDEN OR
RESTRICTED BY THE LAWS OF THE STATE OF DESTINATION.  KENTUCKY WHIP &
COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299 U.S. 334. 

     .         .         .         .         . 

"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.  SUBJECT ONLY TO
THAT LIMITATION,  ...  WE CONCLUDE THAT THE PROHIBITION OF THE SHIPMENT
INTERSTATE OF GOODS PRODUCED UNDER THE FORBIDDEN SUBSTANDARD LABOR
CONDITIONS IS WITHIN THE CONSTITUTIONAL AUTHORITY OF CONGRESS. 

.         .         .         .         . 

"THE OBVIOUS PURPOSE OF THE ACT WAS NOT ONLY TO PREVENT THE
INTERSTATE TRANSPORTATION OF THE PROSCRIBED PRODUCT, BUT TO STOP THE
INITIAL STEP TOWARD TRANSPORTATION, PRODUCTION WITH THE PURPOSE OF SO
TRANSPORTING IT."  UNITED STATES V. DARBY, SUPRA, AT PP. 113, 115,
117. 

FOR FURTHER LEGISLATIVE HISTORY OF THE ACT, SEE ROLAND ELECTRICAL CO.
V. WALLING, 326 U.S. 657, 668-669, N. 5. 

FN13  .  "SEC.  6.  (A)  EVERY EMPLOYER SHALL PAY TO EACH OF HIS
EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE (CERTAIN MINIMUM WAGES)  ... 

"SEC. 7.  (A)  NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED IN
THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR
IN THE PRODUCTION OF GOODS FOR COMMERCE (LONGER THAN CERTAIN MAXIMUM
HOURS)  ...  "  52 STAT. 1062, 1063, 29 U.S.C. SECS. 206(A) AND
207(A). 

FN14  E.G., EDWARDS V. CALIFORNIA, 314 U.S. 160; GOOCH V. UNITED
STATES, 297 U.S. 124; THORNTON V. UNITED STATES, 271 U.S. 414; BROOKS
V. UNITED STATES, 267 U.S. 432; UNITED STATES V. HILL, 248 U.S. 420;
CAMINETTI V. UNITED STATES, 242 U.S. 470.  SEE ALSO, UNITED STATES V.
SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533, 549; BELL V. PORTER,
159 F.2D 117, 118-119(C.A.7TH CIR.).    FN15  "SEC.  15.  (A)  ...  IT
SHALL BE UNLAWFUL FOR ANY PERSON - 

"(A)  TO TRANSPORT, OFFER FOR TRANSPORTATION, SHIP, DELIVER, OR SELL
IN COMMERCE, OR TO SHIP, DELIVER, OR SELL WITH KNOWLEDGE THAT SHIPMENT
OR DELIVERY OR SALE THEREOF IN COMMERCE IS INTENDED, ANY GOODS IN THE
PRODUCTION OF WHICH ANY EMPLOYEE WAS EMPLOYED IN VIOLATION OF SECTION
6(MINIMUM WAGES) OR SECTION 7(MAXIMUM HOURS),  ... 

     .         .         .    .         .    "SEC. 16.  (A)  ANY
PERSON WHO WILLFULLY VIOLATES ANY OF THE PROVISIONS OF SECTION 15 SHALL
UPON CONVICTION THEREOF BE SUBJECT TO A FINE OF NOT MORE THAN $10,000,
OR TO IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR BOTH...."  52 STAT.
1068, 1069, 29 U.S.C. SECS. 215(A)(1) AND 216(A). 

FN16  "IRRESPECTIVE OF THE QUESTION AS TO WHO IS THE ULTIMATE
CONSUMER, HOWEVER, IT IS OUR OPINION THAT THE EMPLOYEES OF THE
CONTAINER MANUFACTURER ARE SUBJECT TO THE ACT.  THE FACT THAT PRODUCTS
LOSE THEIR CHARACTER AS 'GOODS' WHEN THEY COME INTO THE ACTUAL PHYSICAL
POSSESSION OF THE ULTIMATE CONSUMER DOES NOT AFFECT THE COVERAGE OF THE
ACT AS FAR AS THE EMPLOYEES PRODUCING THE PRODUCTS ARE CONCERNED.  THE
FACTS AT THE TIME THAT THE PRODUCTS ARE BEING PRODUCED DETERMINE
WHETHER AN EMPLOYEE IS ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE,
AND AT THE TIME OF THE PRODUCTION OF THE CONTAINERS THEY WERE CLEARLY
'GOODS' WITHIN THE MEANING OF THE STATUTE SINCE THEY WERE NOT, AT THAT
POINT OF TIME, IN THE ACTUAL PHYSICAL POSSESSION OF THE ULTIMATE
CONSUMER.  ALL THAT THE TERM 'GOODS' QUOTED ABOVE IS INTENDED TO
ACCOMPLISH IS TO PROTECT ULTIMATE CONSUMERS, OTHER THAN PRODUCERS,
MANUFACTURERS, OR PROCESSORS OF THE GOODS IN QUESTION FROM THE 'HOT
GOODS' PROVISION OF SECTION 15(A)(1).  THIS SEEMS CLEAR FROM THE
LANGUAGE OF THE STATUTE.  ...  BUT CONGRESS CLEARLY DID NOT INTEND TO
PERMIT AN EMPLOYER TO AVOID THE MINIMUM WAGE AND MAXIMUM HOURS
STANDARDS OF THE ACT BY MAKING DELIVERY WITHIN THE STATE INTO THE
ACTUAL PHYSICAL POSSESSION OF THE ULTIMATE CONSUMER WHO TRANSPORTS OR
SHIPS THE GOODS OUTSIDE THE STATE.  THUS, IT IS OUR OPINION THAT
EMPLOYEES ENGAGED IN BUILDING A BOAT FOR DELIVERY TO THE PURCHASER AT
THE BOATYARD ARE WITHIN THE COVERAGE OF THE ACT IF THE EMPLOYER, AT THE
TIME THE BOAT IS BEING BUILT, INTENDS, HOPES, OR HAS REASON TO BELIEVE
THAT THE PURCHASER WILL SAIL IT OUTSIDE THE STATE."  29 C.F.R. SEC.
776.7(H). 

FN17  48 STAT. 195. 

FN18  THIS CLAUSE WAS AMENDED IN 1942 BY ADDING THE FOLLOWING:
"PROVIDED, THAT THE PROVISIONS OF THIS SUBSECTION (C) SHALL NOT APPLY
TO ANY EMPLOYER WHO SHALL HAVE ENTERED INTO AN AGREEMENT WITH HIS
EMPLOYEES PURSUANT TO THE PROVISIONS OF PARAGRAPHS 1 OR 2 OF SUBSECTION
(B) OF SECTION 7 OF AN ACT ENTITLED 'FAIR LABOR STANDARDS ACT OF
1938'."  56 STAT. 277, 41 U.S.C. SEC. 35(C).  THOSE PARAGRAPHS RELATE
TO COLLECTIVE BARGAINING AGREEMENTS COVERING 26 OR 52 CONSECUTIVE
WORKWEEKS AND EXEMPTING THE EMPLOYER MAKING THEM FROM CHARGES OF
VIOLATION OF THE USUAL MAXIMUM HOUR PROVISIONS OF THE FAIR LABOR
STANDARDS ACT.  THIS AMENDMENT THUS RECOGNIZED THE APPLICATION OF THE
FAIR LABOR STANDARDS ACT TO EMPLOYMENT TO WHICH THE WALSH-HEALEY ACT
ALSO APPLIED. 

FN19  SEE NOTE 11, SUPRA. 

FN20  SEE PYRAMID MOTOR CORP. V. ISPASS, 330 U.S. 695; LEVINSON V.
SPECTOR MOTOR SERVICE, 330 U.S. 649; SOUTHLAND GASOLINE CO. V. BAYLEY,
319 U.S. 44; OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572; UNITED STATES
V. AMERICAN TRUCKING ASSNS., 310 U.S. 534. 

FN21  SEE NOTE 18, SUPRA. 

FN22  "SECTION 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, ...
(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; ... 

     .         .         .         .     . 

"THE CONGRESS FURTHER FINDS AND DECLARES THAT ALL OF THE RESULTS
WHICH HAVE ARISEN OR MAY ARISE UNDER THE FAIR LABOR STANDARDS ACT OF
1938, AS AMENDED, AS AFORESAID, MAY (EXCEPT AS TO LIABILITY FOR
LIQUIDATED DAMAGES) ARISE WITH RESPECT TO THE WALSH-HEALEY AND BACON
DAVIS ACTS AND THAT IT IS, THEREFORE, IN THE NATIONAL PUBLIC INTEREST
AND FOR THE GENERAL WELFARE, ESSENTIAL TO NATIONAL DEFENSE, AND
NECESSARY TO AID, PROTECT, AND FOSTER COMMERCE, THAT THIS ACT SHALL
APPLY TO THE WALSH-HEALEY ACT AND THE BACON-DAVIS ACT."  61 STAT. 84
85, 29 U.S.C. (SUPP. III) SEC. 251(A). 

FN23  THE 1949 AMENDMENTS TO THE FAIR LABOR STANDARDS ACT, INCLUDING
ESPECIALLY THE INCREASE OF MINIMUM WAGES FROM 40 CENTS TO 75 CENTS AN
HOUR, DEMONSTRATE, HOWEVER, THE GROWING IMPORTANCE OF THE APPLICATION
OF THE FAIR LABOR STANDARDS ACT.  63 STAT. 446, 910-920, 29 U.S.C.
(SUPP. III) SEC. 202, ET SEQ., ESPECIALLY SEC. 206(A)(1). 

FN24  54 STAT. 712-714, 50 U.S.C. APP. SECS. 1171, 1172. 

FN25  174 F.2D 718, 726-730. 

FN26  THIS STATEMENT OF LABOR POLICY WAS EMPHASIZED BY COUNSEL FOR
THE RESPONDENT IN THE AARON CASE.  MUCH OF IT IS PUBLISHED IN
REGULATIONS - ARMY:  ORDNANCE PROCUREMENT INSTRUCTIONS, 2 CCH WAR LAW
SERV. SECS. 9,101.1, 9,104.3, 9,104.4, 9,105.2 AND 9,105.3. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF ANY OF THESE CASES. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

THESE CASES DO NOT PRESENT JUST ANOTHER ONE OF THOSE SITUATIONS IN
THE LONG SERIES IN WHICH THE COURT HAS BEEN CALLED UPON TO GIVE A
SYMPATHETIC CONSTRUCTION TO THE FAIR LABOR STANDARDS ACT.  WE DO NOT
HERE HAVE A CONTROVERSY INVOLVING RELATIONS BETWEEN A CAPITALIST
EMPLOYER AND HIS EMPLOYEES.  THE REAL CONTROVERSY IS BETWEEN THE
DEPARTMENT OF THE ARMY WHICH CONCEIVED, FORMULATED, AND ADMINISTERED A
SCHEME FOR THE PRODUCTION OF WAR MATERIEL BY MEANS OF GOVERNMENT-OWNED
PLANTS AND THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR WHICH
ADMINISTERS THE FAIR LABOR STANDARDS ACT.  WE DO NOT HAVE HERE, IN
SHORT, THE RESISTANCE OF PRIVATE EMPLOYERS TO THE DEMANDS OF THEIR
EMPLOYEES.  HERE A VAST CLAIM ON THE TREASURY OF THE UNITED STATES IS
IN ISSUE.  THE ISSUE SHOULD BE DECIDED IN LIGHT OF THE FACT THAT
CONGRESS HAS MANIFESTED IN THE MOST EMPHATIC WAY THAT THE FAIR LABOR
STANDARDS ACT IS NOT TO BE STRETCHED TO THE EXTENT THAT SOPHISTICAL
ARGUMENTATION CAN STRETCH ITS SCOPE BUT IS TO BE APPLIED IN A
COMMONSENSICAL WAY.  FN1  FINE DISTINCTIONS IN THE APPLICATION OF THE
STATUTE CAN HARDLY BE AVOIDED.  THAT MAKES IT ALL THE MORE NECESSARY TO
HEW CLOSE TO THE LINE MARKED OUT BY THE SPECIFIC FACTS OF THE CASES
BEFORE US. THE CAUTION THAT GENERAL PROPOSITIONS DO NOT DECIDE CONCRETE
CASES IS PARTICULARLY TO BE HEEDED IN DEALING WITH AN ENACTMENT FRAMED
IN TERMS OF LEGAL CATEGORIES HAVING DIVERSE AND CONFLICTING CONTENTS. 
IT BEGS THE REAL QUESTION TO PURPORT TO SOLVE A PARTICULAR PROBLEM
MERELY BY INVOKING SUCH A CATEGORY. 

NOT ONLY IS IT IMPORTANT TO BE HEEDFUL OF WHAT THESE CASES ARE REALLY
ABOUT; IT IS NO LESS IMPORTANT TO BE MINDFUL OF WHAT THEY ARE NOT
ABOUT.  THE PROBLEM BEFORE US IS NOT THE APPLICABILITY OF THE FAIR
LABOR STANDARDS ACT TO WORK DONE UNDER ALL GOVERNMENT CONTRACTS, OR
EVEN TO WORK UNDER ALL VARIETIES OF WAR PRODUCTION CONTRACTS, COST-PLUS
FIXED-FEE OR OTHERWISE.  WHAT IS INVOLVED IS THE PARTICULAR KIND OF
COST-PLUS-FIXED-FEE CONTRACTS FOR THE OPERATION OF ORDNANCE PLANTS
UNDER THE ACT OF JULY 2, 1940, WHICH AUTHORIZED THE SECRETARY OF WAR TO
PROVIDE FOR THE OPERATION OF SUCH PLANTS "THROUGH THE AGENCY OF
SELECTED QUALIFIED COMMERCIAL MANUFACTURERS."  FN2 54 STAT. 713, 50
U.S.C. APP. SEC. 1171(B). 

AN ANALYSIS OF THE NATURE OF THE INTERRELATIONSHIP OF GOVERNMENT,
CONTRACTOR AND EMPLOYEES IS NECESSARY TO PUT THE ISSUES IN THEIR PROPER
PERSPECTIVE.  THE FACTS ARE SUBSTANTIALLY THE SAME IN ALL THREE CASES,
BUT SINCE THE FINDINGS IN NO. 79, AARON V. FORD, BACON & DAVIS, INC.,
ARE PARTICULARLY DETAILED, FURTHER DISCUSSION WILL CENTER ON THAT
CASE. 

THE UNITED STATES CONTRACTED WITH RESPONDENT FORD, BACON & DAVIS,
INC. IN JULY, 1941, FOR THE OPERATION OF THE GOVERNMENT-OWNED ARKANSAS
ORDNANCE PLANT AND PRODUCTION THERE OF MUNITIONS FOR WAR - DETONATORS,
PERCUSSION ELEMENTS, ARTILLERY PRIMERS, FUSES, BOOSTERS AND POWDER
TRAIN FUSES.  THE PLANT WAS A MILITARY RESERVATION UNDER THE IMMEDIATE
CONTROL OF AN ORDNANCE OFFICER DESIGNATED BY THE CHIEF OF ORDNANCE. 
MUNITION QUOTAS AND SPECIFICATIONS WERE SET BY THE GOVERNMENT, AND
INSPECTION BY GOVERNMENT OFFICIALS AT EACH STAGE OF PRODUCTION CHECKED
COMPLIANCE WITH RULES PROMULGATED BY THE GOVERNMENT NOT MERELY AS TO
SAFETY BUT AS TO PRODUCTION AS WELL.  THE CONTRACT WAS TERMINABLE AT
WILL BY THE GOVERNMENT AND UNDER IT THE "NORMAL FACTORS WHICH GO TO
MAKE UP COMMERCIAL PROFIT ARE LACKING."  WAR AND NAVY DEPARTMENTS'
STATEMENT OF LABOR POLICY GOVERNING GOVERNMENT-OWNED, PRIVATELY
OPERATED PLANTS (1942), DIGESTED IN 2 CCH WAR LAW SERV. P24,862 ET SEQ.
THE UNITED STATES OWNED ALL MATERIALS AND EQUIPMENT USED IN CONNECTION
WITH THE OPERATION OF THE PLANT.  NINETY-FIVE PER CENT WERE FURNISHED
BY THE GOVERNMENT DIRECTLY; THE REMAINDER WAS OBTAINED BY THE
CONTRACTOR AFTER APPROVAL BY THE GOVERNMENT.  THE UNITED STATES
OBTAINED TITLE TO THE LATTER PURCHASES AT THE POINT OF ORIGIN, AND
SHIPMENT TO THE PLANT WAS ON GOVERNMENT BILLS OF LADING AT A REDUCED
RATE AND WITHOUT PAYMENT OF TRANSPORTATION TAX.  TITLE TO ALL
MATERIALS, EQUIPMENT, AND WORK IN PROCESS IN THE PLANT WAS AT ALL TIMES
IN THE UNITED STATES.  FINISHED PRODUCTS WERE SHIPPED OUT OF ARKANSAS
TO MILITARY FACILITIES ON GOVERNMENT BILLS OF LADING. 

UNDER THE CONTRACT THE GOVERNMENT PAID ALL EXPENSES OF OPERATING THE
PLANT, INCLUDING LABOR COSTS.  THE CONTRACTOR WAS EVEN ALLOWED COSTS OF
PRODUCTION OF MUNITIONS THAT DID NOT MEET SPECIFICATIONS AND COULD NOT
BE USED.  THE GOVERNMENT CONTRACTED FOR ELECTRIC POWER, TELEPHONE,
TELETYPE AND TELEGRAPH SERVICES ITSELF AND PAID THE BILLS DIRECTLY, AND
PROVIDED EMPLOYEES TRAVELING ON BUSINESS WITH TAX-FREE TRANSPORTATION
TICKETS.  AT NO TIME DID THE CONTRACTOR HAVE TO ADVANCE ITS OWN MONEY -
EXPENSES WERE PAID OUT OF AVAILABLE GOVERNMENT FUNDS.  FOR ITS SERVICES
IN OPERATING THE PLANT, THE CONTRACTOR WAS PAID A FIXED FEE. 

THE WAR AND NAVY DEPARTMENTS' STATEMENT OF LABOR POLICY FORBADE
AGREEMENTS BETWEEN THE CONTRACTOR AND PERSONNEL "WHICH, IN THE OPINION
OF EITHER THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, WILL HAVE
THE EFFECT OF RESTRICTING OR HAMPERING MAXIMUM OUTPUT."  ALTHOUGH THE
CONTRACT PROVIDED THAT THE CONTRACTOR WAS TO HIRE ALL EMPLOYEES AND
THAT THEY WERE TO BE "SUBJECT TO THE CONTROL AND CONSTITUTE EMPLOYEES
OF THE CONTRACTOR," THE GOVERNMENT RETAINED THE RIGHT TO APPROVE OR
DISAPPROVE THE EMPLOYMENT OF ALL PERSONNEL AND COULD REQUIRE THE
DISMISSAL OF ANY EMPLOYEE DEEMED "INCOMPETENT OR WHOSE RETENTION IS
DEEMED TO BE NOT IN THE PUBLIC INTEREST."  NO KEY EMPLOYEE COULD BE
ASSIGNED TO SERVICE UNTIL THE CONTRACTING OFFICER APPROVED A STATEMENT
SUBMITTED TO HIM ON THE EMPLOYEE'S PREVIOUS AND PROPOSED SALARY,
QUALIFICATIONS AND EXPERIENCE.  ALL WAGE AND SALARY RATES AND OTHER
CHANGES IN STATUS WERE SUBJECT TO GOVERNMENT APPROVAL, AND THE
GOVERNMENT AUDITED IN ADVANCE OF PAYMENT ALL TIME CARDS AND PAYROLLS
AND WITNESSED THE ACTUAL PAYMENT TO EMPLOYEES.  THE REQUIREMENT OF
APPROVAL OF WAGE RATES WAS NEITHER A DEAD LETTER NOR A FORMALITY. 
PROPOSED WAGE SCALES WERE IN FACT REJECTED BY THE WAR DEPARTMENT. 

WORK UNDER THE CONTRACT WAS SPECIFICALLY MADE SUBJECT TO THE WALSH
HEALEY ACT, 49 STAT. 2036, 41 U.S.C. SEC. 35 ET SEQ. THIS STATUTE WAS
ENACTED BY CONGRESS AFTER THE NATIONAL INDUSTRIAL RECOVERY ACT WAS
INVALIDATED, WITH A VIEW TO DIRECTING "GOVERNMENT PURCHASES ALONG LINES
TENDING TO MAINTAIN THE ADVANCE IN WAGES AND PURCHASING POWER ACHIEVED
UNDER THE N.R.A."  S. REP. NO. 1157, 74TH CONG., 1ST SESS. 1(1935). 
SEE ALSO S. REP. NO. 1193, 74TH CONG., 1ST SESS. (1935); H.R. REP. NO.
2946, 74TH CONG., 2D SESS. (1936).  TO THAT END, SEC. 1(B) REQUIRES
THAT EMPLOYEES OF GOVERNMENT CONTRACTORS BE PAID NOT LESS THAN THE
"PREVAILING MINIMUM WAGE FOR PERSONS EMPLOYED ON SIMILAR WORK OR IN THE
PARTICULAR OR SIMILAR INDUSTRIES OR GROUPS OF INDUSTRIES CURRENTLY
OPERATING IN THE LOCALITY IN WHICH THE MATERIALS, SUPPLIES, ARTICLES,
OR EQUIPMENT ARE TO BE MANUFACTURED OR FURNISHED."  PROVISION IS ALSO
MADE, INTER ALIA, FOR MAXIMUM HOURS, WITH OVERTIME PERMITTED AT "NOT
LESS THAN ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE."  PURSUANT TO
SEC. 2 OF THE STATUTE THE CONTRACT MADE THE CONTRACTOR LIABLE TO THE
UNITED STATES FOR ANY UNDERPAYMENT OF WAGES FOR THE BENEFIT OF
UNDERPAID EMPLOYEES.  FN3 

TWO YEARS AFTER THE WALSH-HEALEY ACT BECAME LAW, CONGRESS BY THE FAIR
LABOR STANDARDS ACT OF 1938 FIXED SPECIFIC MINIMUM HOURLY WAGES AND
MAXIMUM HOURS FOR EMPLOYEES "ENGAGED IN COMMERCE OR IN THE PRODUCTION
OF GOODS FOR COMMERCE."  52 STAT. 1062, 1063, 29 U.S.C. SECS. 206,
207.  SECTION 16(B) OF THAT ACT GIVES EMPLOYEES A RIGHT OF ACTION
AGAINST THEIR EMPLOYER FOR UNPAID MINIMUM WAGES OR OVERTIME
COMPENSATION AND FOR "AN ADDITIONAL EQUAL AMOUNT AS LIQUIDATED
DAMAGES.  ... THE COURT IN SUCH ACTION SHALL, IN ADDITION TO ANY
JUDGMENT AWARDED TO THE PLAINTIFF  ...  ALLOW A REASONABLE ATTORNEY'S
FEE TO BE PAID BY THE DEFENDANT, AND COSTS OF THE ACTION."    THE COURT
NOW HOLDS THAT THE FAIR LABOR STANDARDS ACT IS APPLICABLE TO EMPLOYEES
OF COST-PLUS-FIXED-FEE CONTRACTORS IRRESPECTIVE OF THE ULTIMATE
LIABILITY OF THE UNITED STATES UNDER THE CONTRACTS FOR WHATEVER SUMS
ARE RECOVERED IN THESE SUITS.  AS WE SAID IN KENNEDY V. SILAS MASON
CO., 334 U.S. 249, 254, THE CONTRACTOR "IN A SENSE, IS NO MORE THAN A
NOMINAL DEFENDANT, FOR IT IS ENTITLED TO REIMBURSEMENT FROM THE
GOVERNMENT."  THE REACH OF THE LIABILITY WHICH TODAY'S DECISION
ESTABLISHES IS INDICATED BY THE AGREED STATEMENT THAT IN THE AARON CASE
ALONE, A "CONSERVATIVE ESTIMATE OF THE TOTAL AMOUNT IN SUIT, EXCLUSIVE
OF LIQUIDATED DAMAGES AND COSTS, IS IN EXCESS OF $500,000.00."  IT WAS
ESTIMATED BY THE SECRETARY OF WAR IN 1946 THAT THE AMOUNT AT STAKE IN
"EXISTING SUITS AND POTENTIAL SUITS  ...  MAY IN THE AGGREGATE EXCEED
$250,000,000, SUBSTANTIALLY ALL OF WHICH WILL BE REIMBURSABLE TO THE
CONTRACTORS."  FN4  THE COURT CREATES SUCH A DRAIN ON THE TREASURY BY
IMPUTING TO THE CONGRESS WHICH ENACTED THE FAIR LABOR STANDARDS ACT -
AND WHICH OF COURSE COULD NOT POSSIBLY HAVE FORESEEN THE COST-PLUS
FIXED-FEE ARRANGEMENTS INVOLVED HERE - THE INTENTION, IN EFFECT, TO
OPEN THE TREASURY NOT ONLY TO HUGE CLAIMS FOR OVERTIME BUT IN ADDITION
TO DEMANDS FOR LIKE AMOUNTS AS "LIQUIDATED DAMAGES," AND ATTORNEYS'
FEES.  IN THE ABSENCE OF A SHRED OF EVIDENCE TO INDICATE THAT CONGRESS
CONTEMPLATED SUCH A RESULT OR WOULD HAVE COUNTENANCED IT, I CANNOT
BRING MYSELF TO ATTRIBUTE TO CONGRESS THE DESIRE TO PLACE SUCH A DOUBLE
BURDEN UPON THE FISC. 

CERTAINLY SUCH A RESULT SHOULD HAVE A MORE SALIENT JUSTIFICATION THAN
ABSTRACT ARGUMENTATION ABOUT WORDS NOT HAVING FIXED SCOPE OR FUNCTION. 
OUR DECISIONS HAVE MADE ONE THING CLEAR ABOUT THE FAIR LABOR STANDARDS
ACT:  ITS APPLICABILITY IS NOT FIXED BY LABELS THAT PARTIES MAY ATTACH
TO THEIR RELATIONSHIP NOR BY COMMON LAW CATEGORIES NOR BY
CLASSIFICATIONS UNDER OTHER STATUTES.  RUTHERFORD FOOD CORP. V. MCCOMB,
331 U.S. 722; WALLING V. PORTLAND TERMINAL CO., 330 U.S. 148, 150;
MCCOMB V. MCKAY, 164 F.2D 40; CF. UNITED STATES V. UNITED MINE WORKERS,
330 U.S. 258, 285-86.  UNLESS WE ARE TO DISREGARD THIS GUIDANCE OF
WISDOM IN CONSTRUING SO DYNAMIC A CODE AS THE FAIR LABOR STANDARDS ACT,
DESIGNATION IN THE CONTRACTS OF THE CONTRACTORS AS THE "EMPLOYERS" OF
THE PERSONNEL IN THE ORDNANCE PLANTS CANNOT BE DECISIVE.  AGAIN, THE
BARE WORDS OF THE DEFINITIONS IN THAT ACT, NEVER SELF-APPLYING IN
PARTICULAR CASES, ARE ESPECIALLY INCONCLUSIVE HERE BECAUSE THE COST
PLUS-FIXED-FEE ARRANGEMENTS ADOPTED FOR THE OPERATION OF THESE PLANTS
WERE OF SUCH AN UNPRECEDENTED CHARACTER.  WE ARE DEALING WITH ECONOMIC
ARRANGEMENTS WHICH IN THEIR SCOPE AND INCIDENCE WERE APTLY
CHARACTERIZED BY THE WAR AND NAVY DEPARTMENTS' STATEMENT OF LABOR
POLICY: "THE INDUSTRIAL UNITS THUS CREATED ARE UNIQUE."  IN SUCH UNIQUE
SITUATIONS ESPECIALLY WE SHOULD HEED OUR ADMONITION AGAINST PERVERTING
"THE PROCESS OF INTERPRETATION BY MECHANICALLY APPLYING DEFINITIONS IN
UNINTENDED CONTEXTS."  FARMERS RESERVOIR & IRRIGATION CO. V. MCCOMB,
337 U.S. 755, 764.  IN LAW AS ELSEWHERE WORDS OF MANY-HUED MEANINGS
DERIVE THEIR SCOPE FROM THE USE TO WHICH THEY ARE PUT. 

NO DOUBT, AS SUGGESTED, THE PURPOSE OF THE FAIR LABOR STANDARDS ACT
SHOULD GUIDE OUR READING OF IT.  THE AIM OF THE ACT, SET FORTH IN SEC.
2(A), IS TO ELIMINATE "IN INDUSTRIES ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE  ...  LABOR CONDITIONS DETRIMENTAL TO
THE MAINTENANCE OF THE MINIMUM STANDARD OF LIVING NECESSARY FOR HEALTH,
EFFICIENCY, AND GENERAL WELL-BEING OF WORKERS."  BUT TO FIND THAT THIS
ACT DOES NOT FIT THE CONTRACTS IN SUIT NEITHER NEGATIVES CONGRESSIONAL
CONCERN FOR THE WELFARE OF THE EMPLOYEES INVOLVED NOR DEPRIVES THEM OF
PROTECTION CONSONANT WITH THE HUMANE MOTIVES UNDERLYING THE ACT.  THE
WALSH-HEALEY ACT ITSELF SERVES AS PROOF OF CONGRESSIONAL PROVISION FOR
CIVILIZED STANDARDS FOR EMPLOYEES CARRYING OUT GOVERNMENT CONTRACTS. 
PURSUANT TO THAT STATUTE, THE POLICY UNDER THE CONTRACTS HERE WAS TO
PAY TIME AND ONE-HALF FOR OVERTIME TO EMPLOYEES IN NONSUPERVISORY
CLASSIFICATIONS.  THE DEGREE OF CONTROL EXERTED BY THE GOVERNMENT OVER
WORKING CONDITIONS AND WAGE RATES, GOVERNMENT AUDIT OF TIME CARDS AND
PAYROLLS, THE PRESENCE OF GOVERNMENT OFFICERS AT THE TIME EMPLOYEES
WERE PAID, AND THE POWER OF THE GOVERNMENT TO WITHHOLD PAYMENTS
OTHERWISE DUE THE CONTRACTOR OR TO SUE FOR DEPARTURE FROM SPECIFIED
STANDARDS AND USE THE RECOVERY TO COMPENSATE AGGRIEVED EMPLOYEES
FURNISHED A SCHEME OF SAFEGUARDS TO ASSURE FAIR DEALING. 

IT IS SAID THAT THE FAIR LABOR STANDARDS ACT HAS BEEN INTERPRETED
ADMINISTRATIVELY AS COVERING THE EMPLOYEES IN THESE CASES.  BUT THE
AGENCY OF GOVERNMENT CHARGED WITH THE FORMULATION AND SUPERVISION OF
THESE CONTRACTS, THE DEPARTMENT OF THE ARMY, SUPPORTS THE POSITION OF
THE CONTRACTORS HERE.  CORRESPONDENCE BETWEEN THE WAR AND NAVY
DEPARTMENTS AND THE ATTORNEY GENERAL IN 1944 SHOWS THAT INITIAL
RELUCTANCE OF THE TWO DEPARTMENTS TO HAVE SUITS AGAINST COST-PLUS-FIXED
FEE CONTRACTORS UNDER THE FAIR LABOR STANDARDS ACT DEFENDED ON THE
BASIS OF THE INAPPLICABILITY OF THE STATUTE DID NOT STEM FROM LACK OF
CONVICTION ABOUT THE VALIDITY OF THE DEFENSE.  RATHER, THE WAR AND NAVY
DEPARTMENTS FEARED THAT ITS SUCCESSFUL ASSERTION WOULD HAVE SIGNIFICANT
IMPLICATIONS FOR THE CONSTRUCTION OF THE NATIONAL LABOR RELATIONS ACT
AND WOULD "RESULT IN AN IMPAIRMENT OF THE JURISDICTION OF THE NATIONAL
LABOR RELATIONS BOARD OVER WAR PLANTS OR CAUSE A SUBSTANTIAL LEGAL
DOUBT TO BE CAST UPON SUCH JURISDICTION."  THIS FEAR WAS ENGENDERED BY
THE UNRESOURCEFUL ADVICE OF A GOVERNMENT LAWYER AS TO THE SUBJECTION OF
THE EMPLOYMENT UNDER THESE CONTRACTS TO THE COLLECTIVE-BARGAINING
POLICY OF THE WAGNER ACT IF THE FAIR LABOR STANDARDS ACT WAS NOT
APPLICABLE.  IN VIEW OF SUCH ADVICE, THE WAR AND NAVY DEPARTMENTS
CONCLUDED THAT THE INTEREST IN EFFICIENT PROSECUTION OF THE WAR WOULD
BEST BE SERVED BY PRESERVING AT WAR PLANTS THE DEGREE OF SUPERVISION
OVER LABOR RELATIONS EMBODIED IN THE NATIONAL LABOR RELATIONS ACT EVEN
AT THE EXPENSE OF ABANDONING ATTACKS UPON THE APPLICABILITY OF THE FAIR
LABOR STANDARDS ACT TO COST-PLUS-FIXED-FEE CONTRACTORS.  SEE ALSO 22
COMP. GEN. 277.  TO FIND "ADMINISTRATIVE INTERPRETATION" IN A DECISION
OF GOVERNMENT DEPARTMENTS, ACTING UNDER LEGAL ADVICE, THAT A CONCESSION
AS TO A STATUTE'S APPLICABILITY WAS AN EXPEDIENT STEP IN THE WAR
PRODUCTION PROGRAM IS TO DISREGARD THE JUSTIFICATION FOR UTILIZING
"ADMINISTRATIVE INTERPRETATION" AS A GLOSS ON AMBIGUOUS LEGISLATION. 

THE GOVERNMENT EXERTED CLOSE SUPERVISION OVER EVERY PHASE OF
OPERATIONS AT THESE ORDNANCE PLANTS, SPECIFYING ARTICLES TO BE
MANUFACTURED, PRODUCTION QUOTAS AND METHODS OF PRODUCTION.  GOVERNMENT
CONTROL WAS PARTICULARLY DOMINANT WITH RESPECT TO PERSONNEL POLICIES,
INCLUDING PHASES OF HIRING AND FIRING, JOB ASSIGNMENTS, WORKING
CONDITIONS, WAGE RATES, AND OVERTIME COMPENSATION.  THE INVESTMENT IN
PLANT AND FACILITIES WAS ENTIRELY THE GOVERNMENT'S, AND THE GOVERNMENT
BORE ALL THE EXPENDITURES AND ALL THE RISKS OF OPERATION.  AS BETWEEN
THE CONTRACTORS AND THE WORKERS, THE OPERATION WAS WANTING IN THE
CHARACTERISTIC ASPECTS OF THE NORMAL EMPLOYER-EMPLOYEE RELATION.  IN
VIEW OF THESE FACTORS AND THE APPLICABILITY OF THE WALSH-HEALEY ACT
WITH ITS PROTECTIVE FEATURES FOR PLANT PERSONNEL, I SEE NO BASIS FOR
ATTRIBUTING TO CONGRESS THE INTENTION TO MAKE THESE CONTRACTORS
"EMPLOYERS" WITHIN THE MEANING OF THE FAIR LABOR STANDARDS ACT WHEN
SUCH A RESULT WOULD HAVE FISCAL CONSEQUENCES NEITHER FORESEEN NOR, ON
ANY REASONABLE ASSUMPTION, DESIRED BY CONGRESS.  CF. UNITED STATES V.
WITTEK, 337 U.S. 346.  SINCE THE UNITED STATES IS NOT AN "EMPLOYER"
WITHIN THE MEANING OF THE STATUTE, THE OVERTIME PROVISIONS ARE
INAPPLICABLE. 

THESE CONSIDERATIONS CALL FOR AFFIRMANCE WITHOUT DISCUSSION OF OTHER
GROUNDS WHICH HAVE BEEN ADVANCED FOR SUSTAINING THE JUDGMENTS BELOW,
SOME OF WHICH AT LEAST HAVE COMMENDED THEMSELVES TO SEVERAL COURTS OF
APPEALS. 

FN1  CONGRESS FOUND THAT THE CONSTRUCTION WHICH THIS COURT PLACED
UPON THE FAIR LABOR STANDARDS ACT IN JEWELL RIDGE COAL CORP. V. LOCAL
NO. 6167, 325 U.S. 161, ANDERSON V. MT. CLEMENS POTTERY CO., 328 U.S.
680, BAY RIDGE OPERATING CO. V. AARON, 334 U.S. 446, BROOKLYN SAVINGS
BANK V. O'NEIL, 324 U.S. 697, AND FARMERS RESERVOIR AND IRRIGATION CO.
V. MCCOMB, 337 U.S. 755, MISCONCEIVED THE PURPOSES OF CONGRESS.  SEE
PORTAL-TO-PORTAL ACT OF 1947, 61 STAT. 84, 29 U.S.C. (SUPP. III) SEC.
251 ET SEQ.; ACT OF JULY 20, 1949, 63 STAT. 446, 29 U.S.C. (SUPP. III)
SEC. 207(E)(1), (2), (F); FAIR LABOR STANDARDS AMENDMENTS OF 1949,
SECS. 11, 14, 63 STAT. 910, 917, 919, 29 U.S.C. (SUPP. III) SECS. 213,
216. 

FN2  THE SECRETARY OF THE NAVY WAS AUTHORIZED TO ENTER INTO CONTRACTS
FOR PRIVATE OPERATION OF NAVY INSTALLATIONS ON A COST-PLUS-FIXED-FEE
BASIS BY SECS. 2(A) AND 8(B) OF THE ACT OF JUNE 28, 1940.  54 STAT.
677, 680, 50 U.S.C. APP. SECS. 1152(A)(1), 1158(B). 

FN3  SECTION 2 PROVIDES:  "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  ...  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. 
ALL SUMS WITHHELD OR RECOVERED AS DEDUCTIONS, REBATES, REFUNDS, OR
UNDERPAYMENTS OF WAGES SHALL BE HELD IN A SPECIAL DEPOSIT ACCOUNT AND
SHALL BE PAID, ON ORDER OF THE SECRETARY OF LABOR, DIRECTLY TO THE
EMPLOYEES ...  ON WHOSE ACCOUNT SUCH SUMS WERE WITHHELD OR RECOVERED." 

FN4  UNDER THE FAIR LABOR STANDARDS ACT EVEN EMPLOYERS WHO ACTED WITH
THE UTMOST GOOD FAITH ARE LIABLE FOR LIQUIDATED DAMAGES AND ATTORNEYS'
FEES IN ADDITION TO UNPAID MINIMUM WAGES OR OVERTIME COMPENSATION.  THE
SEVERE IMPACT A LARGE, UNFORESEEN NONREIMBURSED LIABILITY WOULD HAVE
UPON A FIXED-FEE CONTRACTOR RECEIVING AN ANNUAL FEE OF $420,000 AS IN
THE AARON CASE IS MANIFEST. 
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BUILDING SERVICE UNION V. GAZZAM, 339 U.S. 532 


NO. 449.  ARGUED FEBRUARY 9, 1950.  - DECIDED MAY 8, 1950.  - 34 WASH.2D
38, 207 P.2D 699, AFFIRMED. 


IN A STATE WHOSE PUBLIC POLICY IS THAT EMPLOYERS SHALL NOT COERCE
THEIR EMPLOYEES' CHOICE OF A BARGAINING REPRESENTATIVE, A STATE COURT
INJUNCTION AGAINST PEACEFUL PICKETING BY A LABOR UNION FOR THE
PARTICULAR PURPOSE OF COMPELLING AN EMPLOYER TO SIGN A CONTRACT WHICH
WOULD COERCE HIS EMPLOYEES' CHOICE OF A BARGAINING REPRESENTATIVE DOES
NOT VIOLATE THE RIGHT OF FREE SPEECH GUARANTEED BY THE FIRST AND
FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION.  PP. 533-541. 

(A)  SINCE PICKETING IS MORE THAN SPEECH AND ESTABLISHES A LOCUS IN
QUO THAT HAS FAR MORE POTENTIAL FOR INDUCING ACTION THAN THE MESSAGE
THE PICKETS CONVEY, THIS COURT UPHOLDS A STATE'S RESTRAINT OF ACTS AND
CONDUCT WHICH ARE AN ABUSE OF THE RIGHT TO PICKET RATHER THAN A MEANS
OF PEACEFUL AND TRUTHFUL PUBLICITY.  PP. 536-537. 

(B)  THE PICKETING OF THE EMPLOYER TO COMPEL HIM TO COERCE HIS
EMPLOYEES' CHOICE OF A BARGAINING REPRESENTATIVE WAS UNLAWFUL BECAUSE
IT WAS AN ATTEMPT TO INDUCE A TRANSGRESSION OF THE STATE'S POLICY
AGAINST SUCH COERCION OF EMPLOYEES.  PP. 538-539. 

(C)  AMERICAN FEDERATION OF LABOR V. SWING, 312 U.S. 321,
DISTINGUISHED; GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490,
FOLLOWED.  PP. 539-540. 

BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 262, ET AL. V.
GAZZAM. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

PETITIONERS WERE ENJOINED BY A STATE COURT FROM PICKETING
RESPONDENT'S PLACE OF BUSINESS.  THE STATE SUPREME COURT AFFIRMED.  34
WASH.2D 38, 207 P.2D 699.  THIS COURT GRANTED CERTIORARI.  338 U.S.
903.  AFFIRMED, P. 541. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

IT IS THE PUBLIC POLICY OF THE STATE OF WASHINGTON THAT EMPLOYERS
SHALL NOT COERCE THEIR EMPLOYEES' CHOICE OF REPRESENTATIVES FOR
PURPOSES OF COLLECTIVE BARGAINING.  DO THE FIRST AND FOURTEENTH
AMENDMENTS TO THE FEDERAL CONSTITUTION PERMIT THE STATE, IN RELIANCE ON
THIS POLICY, TO ENJOIN PEACEFUL PICKETING CARRIED ON FOR THE PURPOSE OF
COMPELLING AN EMPLOYER TO SIGN A CONTRACT WITH A LABOR UNION WHICH
COERCES HIS EMPLOYEES' CHOICE OF BARGAINING REPRESENTATIVE? 

THE STATE ANSWERED IN THE AFFIRMATIVE.  AN INJUNCTION WAS ISSUED IN
NARROW TERMS ENJOINING PETITIONERS "FROM ENDEAVORING TO COMPEL
PLAINTIFF TO COERCE HIS EMPLOYEES TO JOIN THE DEFENDANT UNION OR TO
DESIGNATE DEFENDANT UNION AS THEIR REPRESENTATIVE FOR COLLECTIVE
BARGAINING, BY PICKETING THE HOTEL PREMISES OF PLAINTIFF  ...  "  THE
SUPREME COURT OF WASHINGTON AFFIRMED, 34 WASH.2D 38, 207 P.2D 699, AND
WE GRANTED CERTIORARI.  338 U.S. 903. 

AT THE TIME OF THE CONTROVERSY, RESPONDENT EMPLOYED ABOUT FIFTEEN
PERSONS AT ENETAI INN, A SMALL HOTEL WHICH HE OPERATES IN BREMERTON,
WASHINGTON.  JUST PRIOR TO MAY 1, 1946, REPRESENTATIVES OF THE
PETITIONER UNION CALLED UPON RESPONDENT ABOUT ORGANIZING HIS EMPLOYEES
AND ASKED HIM TO SIGN A CONTRACT WITH THE UNION WHICH WOULD REQUIRE HIS
EMPLOYEES TO JOIN THE UNION.  NONE OF THE EMPLOYEES WAS A MEMBER OF ANY
UNION ACTIVE IN THE AREA.  RESPONDENT REPLIED THAT THAT WAS A MATTER
FOR THE EMPLOYEES TO DECIDE.  HE GAVE THE UNION AND ITS REPRESENTATIVES
PERMISSION FREELY TO VISIT AND SOLICIT HIS EMPLOYEES FOR MEMBERSHIP
WHILE HE WAS ABSENT ON A BRIEF TRIP TO LOS ANGELES.  UPON HIS RETURN,
THE UNION REPRESENTATIVES AGAIN APPROACHED HIM ABOUT SIGNING A
CONTRACT.  THE REPRESENTATIVES ADMITTED THAT THEY HAD NOT SECURED ANY
MEMBERS AMONG THE EMPLOYEES, AND RESPONDENT AGAIN REPLIED THAT IT WAS A
MATTER FOR THE EMPLOYEES.  ON MAY 2, 1946, RESPONDENT WAS ADVISED THAT
THE UNION PROPOSED TO HAVE THE ENETAI INN PLACED ON THE "WE DO NOT
PATRONIZE" LIST, AND A MEETING FOR THE PURPOSE OF ATTEMPTING TO REACH A
SETTLEMENT WAS SUGGESTED.  AT THE MEETING HELD A FEW DAYS LATER
RESPONDENT WAS REPRESENTED BY HIS ATTORNEY.  THE UNION STILL INSISTED
THAT RESPONDENT SIGN THE CONTRACT, AND RESPONDENT THROUGH HIS ATTORNEY
STILL DECLINED TO SIGN ON THE GROUND THAT THAT WOULD REQUIRE HIM TO
COERCE HIS EMPLOYEES TO JOIN A UNION, CONTRARY TO STATE LAW. 

THE UNION ASKED FOR AND WAS GRANTED A MEETING WITH RESPONDENT'S
EMPLOYEES AT WHICH THE UNION REPRESENTATIVES MIGHT PRESENT THEIR CASE. 
SIX REPRESENTATIVES OF ORGANIZED LABOR ATTENDED THIS MEETING, HELD ON
MAY 10, 1946.  ELEVEN OF THE EMPLOYEES ATTENDED.  ONE WAS A BELLBOY
WHOSE WORK THE UNION APPARENTLY DID NOT WISH TO HAVE COVERED. 
RESPONDENT WAS AGAIN REPRESENTED BY HIS ATTORNEY.  THE UNION
REPRESENTATIVES WERE GIVEN COMPLETE AND UNHAMPERED OPPORTUNITY TO
PRESENT THEIR ARGUMENTS FOR UNIONIZATION TO THE EMPLOYEES.  NO
STATEMENT WAS MADE BY ANYONE ON BEHALF OF RESPONDENT OR THE EMPLOYEES. 
AFTER THE UNION REPRESENTATIVES HAD COMPLETED THEIR PRESENTATION, ALL
WITHDREW EXCEPT THE EMPLOYEES WHO THEN TOOK A VOTE AS TO WHETHER THEY
WISHED TO JOIN THE UNION.  OF THE ELEVEN VOTING, NINE VOTED AGAINST
JOINING, ONE WAS UNDECIDED, AND THE BELLBOY, WHOSE MEMBERSHIP THE UNION
DID NOT DESIRE, VOTED TO JOIN.  THE RESULT WAS IMMEDIATELY REPORTED TO
THE UNION REPRESENTATIVES AND TO RESPONDENT'S ATTORNEY.  SEVERAL DAYS
LATER RESPONDENT WAS NOTIFIED THAT HIS HOTEL HAD BEEN PLACED ON THE "WE
DO NOT PATRONIZE" LIST AND PICKETS BEGAN WALKING IN FRONT OF HIS HOTEL
BEARING A SIGN READING:  "ENETAI INN - UNFAIR TO ORGANIZED LABOR."  THE
PICKETING WAS CARRIED ON BY A SINGLE PICKET AT A TIME AND WAS
INTERMITTENT AND PEACEFUL. 

WITH THE EXCEPTION OF REFUSING TO SIGN THE CONTRACT REQUIRING HIS
EMPLOYEES TO JOIN THE UNION, RESPONDENT HAD COMPLIED WITH ALL OF THE
REQUESTS AND DEMANDS OF THE UNION.  THAT SINGLE REFUSAL WAS WHAT CAUSED
THE UNION TO BRAND RESPONDENT'S PLACE OF BUSINESS AS UNFAIR.  AFTER THE
PICKETING STARTED, RESPONDENT'S ATTORNEY AGREED TO TALK TO RESPONDENT
AGAIN TO SEE IF HE WOULD CONSIDER SIGNING THE CONTRACT.  AFTER
CONSULTING WITH RESPONDENT, THE ATTORNEY WROTE THE UNION'S ATTORNEY
THAT RESPONDENT WAS WILLING TO NEGOTIATE FURTHER WITH THE UNION BUT
WOULD NOT SIGN THE TYPE OF CONTRACT THAT HAD BEEN TENDERED HIM.  THE
UNION THEN OFFERED A CONTRACT WHICH PROVIDED THAT PRESENT EMPLOYEES
SHOULD NOT BE REQUIRED TO JOIN THE UNION AS A CONDITION OF CONTINUED
EMPLOYMENT, BUT THAT ANY EMPLOYEES HIRED IN THE FUTURE WOULD BE
REQUIRED TO JOIN WITHIN FIFTEEN DAYS OR BE DISCHARGED.  THE NEW
CONTRACT ALSO PROVIDED THAT THE UNION SHOULD BE THE BARGAINING
REPRESENTATIVE FOR BOTH UNION AND NONUNION EMPLOYEES.  THE SECOND
CONTRACT WAS JUST THE FIRST CONTRACT IN SLOW MOTION.  RESPONDENT
REFUSED TO SIGN IT FOR THE SAME REASON HE HAD REFUSED TO SIGN THE
PREVIOUSLY TENDERED CONTRACT. 

THE PEACEFUL PICKETING CONTINUED, AND ON JUNE 29, 1946, RESPONDENT
FILED THIS SUIT FOR AN INJUNCTION AND DAMAGES.  ON THE FIRST HEARING
THE TRIAL COURT GRANTED PETITIONERS' MOTION FOR A NONSUIT AND DISMISSED
THE COMPLAINT.  THE SUPREME COURT OF WASHINGTON REVERSED ON APPEAL.  29
WASH.2D 488, 188 P.2D 97.  UPON REMAND THE TRIAL COURT ON SEPTEMBER 20,
1948, ENTERED JUDGMENT FOR RESPONDENT FOR DAMAGES FOR THE "WRONGFUL
PICKETING" IN THE SUM OF $500 AND PERMANENTLY ENJOINED PETITIONERS IN
THE PREVIOUSLY QUOTED LANGUAGE.  THIS JUDGMENT THE SUPREME COURT OF
WASHINGTON AFFIRMED ON JULY 1, 1949, BY A DIVIDED COURT.  34 WASH.2D
38, 207 P.2D 699. 

THE STATE OF WASHINGTON HAS WHAT IS SOMETIMES REFERRED TO AS A
"LITTLE NORRIS-LAGUARDIA ACT," FN1  WHICH PROVIDES THAT NO INJUNCTION
SHALL ISSUE IN A "LABOR DISPUTE," AS DEFINED IN THE ACT, EXCEPT IN
CONFORMITY WITH THE PROVISIONS OF THE ACT; NOR SHALL ANY INJUNCTION
ISSUE CONTRARY TO THE PUBLIC POLICY DECLARED IN THE ACT.  NO "LABOR
DISPUTE" AS DETERMINED BY THE LAW OF WASHINGTON WAS HELD TO EXIST IN
THIS CASE.  THERE WAS NO INJUNCTION AGAINST PICKETING GENERALLY.  IT
WAS HELD THAT THE OBJECTIVE OF THE PICKETING WAS VIOLATIVE OF THE
PUBLIC POLICY AGAINST EMPLOYER COERCION OF EMPLOYEES' CHOICE OF
BARGAINING REPRESENTATIVE, AND THAT THE PICKETING SHOULD BE ENJOINED ON
THAT NARROW GROUND.  FN2 

DOES THE INJUNCTION, LIMITED AS IT IS TO RESTRAINING PETITIONERS FROM
PICKETING RESPONDENT'S HOTEL FOR THE PURPOSE OF COMPELLING HIM TO
COERCE HIS EMPLOYEES' CHOICE OF BARGAINING REPRESENTATIVE, CONSTITUTE
AN ABRIDGMENT OF THE RIGHT OF FREE SPEECH UNDER THE FIRST AND
FOURTEENTH AMENDMENTS? 

THIS COURT HAS SAID THAT PICKETING IS IN PART AN EXERCISE OF THE
RIGHT OF FREE SPEECH GUARANTEED BY THE FEDERAL CONSTITUTION.  CAFETERIA
EMPLOYEES UNION V. ANGELOS, 320 U.S. 293; BAKERY & PASTRY DRIVERS &
HELPERS LOCAL V. WOHL, 315 U.S. 769; AMERICAN FEDERATION OF LABOR V.
SWING, 312 U.S. 321; CARLSON V. CALIFORNIA, 310 U.S. 106; THORNHILL V.
ALABAMA, 310 U.S. 88; SENN V. TILE LAYERS UNION, 301 U.S. 468.  BUT
SINCE PICKETING IS MORE THAN SPEECH AND ESTABLISHES A LOCUS IN QUO THAT
HAS FAR MORE POTENTIAL FOR INDUCING ACTION OR NONACTION THAN THE
MESSAGE THE PICKETS CONVEY, THIS COURT HAS NOT HESITATED TO UPHOLD A
STATE'S RESTRAINT OF ACTS AND CONDUCT WHICH ARE AN ABUSE OF THE RIGHT
TO PICKET RATHER THAN A MEANS OF PEACEFUL AND TRUTHFUL PUBLICITY.  THUS
IN MILK WAGON DRIVERS UNION V. MEADOWMOOR DAIRIES, 312 U.S. 287, THE
PICKETING IN ISSUE, CONSIDERED IN ISOLATION, WAS PEACEFUL, BUT HAD BEEN
FOUND TO BE ENMESHED WITH AND SET IN SUCH A BACKGROUND OF VIOLENCE THAT
IT WAS A PART OF A PATTERN OF VIOLENCE.  THIS COURT HELD THAT PEACEFUL
PICKETING UNDER SUCH CIRCUMSTANCES MIGHT PROPERLY BE ENJOINED BY THE
STATE. 

IN HOTEL & RESTAURANT EMPLOYEES' INTERNATIONAL ALLIANCE V. WISCONSIN
E.R.B., 315 U.S. 437, THIS COURT UPHELD THE RIGHT OF WISCONSIN THROUGH
ITS EMPLOYMENT RELATIONS BOARD TO ISSUE A CEASE AND DESIST ORDER
AGAINST VIOLENCE IN PICKETING AND BOYCOTTING BY THE UNION INVOLVED. 
CARPENTERS & JOINERS UNION V. RITTER'S CAFE, 315 U.S. 722, UPHELD A
DECREE ENJOINING THE UNION FROM PICKETING A CAFE HAVING NO BUSINESS
CONNECTION WITH THE PLACE WHERE THE INDUSTRIAL DISPUTE CENTERED.  AND
IN GIBONEY V. EMPIRE STORAGE & ICE CO., 336 U.S. 490, THE COURT
SUSTAINED A DECREE ENJOINING PICKETING WHICH WAS PEACEFUL AND
INFORMATIVE BUT WAS CARRIED ON FOR THE PURPOSE OF COERCING THE EMPLOYER
TO VIOLATE THE ANTITRUST LAW OF MISSOURI. 

THE PUBLIC POLICY OF ANY STATE IS TO BE FOUND IN ITS CONSTITUTION,
ACTS OF THE LEGISLATURE, AND DECISIONS OF ITS COURTS.  "PRIMARILY IT IS
FOR THE LAWMAKERS TO DETERMINE THE PUBLIC POLICY OF THE STATE."  TWIN
CITY PIPE LINE COMPANY V. HARDING GLASS COMPANY, 283 U.S. 353, 357. 

THE STATE OF WASHINGTON HAS BY LEGISLATIVE ENACTMENT DECLARED ITS
PUBLIC POLICY ON THE SUBJECT OF ORGANIZATION OF WORKERS FOR BARGAINING
PURPOSES.  THE PERTINENT PART OF THIS STATUTE IS SET FORTH IN THE
MARGIN.  FN3  THE MEANING AND EFFECT OF THIS DECLARATION OF POLICY IS
FOUND IN ITS APPLICATION BY THE HIGHEST COURT OF THE STATE TO THE
CONCRETE FACTS OF THE INSTANT CASE.  UNDER THE SO-ENUNCIATED PUBLIC
POLICY OF WASHINGTON, IT IS CLEAR THAT WORKERS SHALL BE FREE TO JOIN OR
NOT TO JOIN A UNION, AND THAT THEY SHALL BE FREE FROM THE COERCION,
INTERFERENCE, OR RESTRAINT OF EMPLOYERS OF LABOR IN THE DESIGNATION OF
THEIR REPRESENTATIVES FOR COLLECTIVE BARGAINING.  PICKETING OF AN
EMPLOYER TO COMPEL HIM TO COERCE HIS EMPLOYEES' CHOICE OF A BARGAINING
REPRESENTATIVE IS AN ATTEMPT TO INDUCE A TRANSGRESSION OF THIS POLICY,
AND THE STATE HERE RESTRAINED THE ADVOCATES OF SUCH TRANSGRESSION FROM
FURTHER ACTION WITH LIKE AIM.  TO JUDGE THE WISDOM OF SUCH POLICY IS
NOT FOR US; OURS IS BUT TO DETERMINE WHETHER A RESTRAINT OF PICKETING
IN RELIANCE ON THE POLICY IS AN UNWARRANTED ENCROACHMENT UPON RIGHTS
PROTECTED FROM STATE ABRIDGMENT BY THE FOURTEENTH AMENDMENT. 

PETITIONERS INSIST THAT THE SWING CASE, SUPRA, IS CONTROLLING.  WE
THINK NOT.  IN THAT CASE THIS COURT STRUCK DOWN THE STATE'S RESTRAINT
OF PICKETING BASED SOLELY ON THE ABSENCE OF AN EMPLOYER-EMPLOYEE
RELATIONSHIP.  AN ADEQUATE BASIS FOR THE INSTANT DECREE IS THE UNLAWFUL
OBJECTIVE OF THE PICKETING, NAMELY, COERCION BY THE EMPLOYER OF THE
EMPLOYEES' SELECTION OF A BARGAINING REPRESENTATIVE.  PEACEFUL
PICKETING FOR ANY LAWFUL PURPOSE IS NOT PROHIBITED BY THE DECREE UNDER
REVIEW.  THE STATE HAS NOT HERE, AS IN SWING, RELIED ON THE ABSENCE OF
AN EMPLOYER-EMPLOYEE RELATIONSHIP.  THUS THE STATE HAS NOT, AS WAS THE
CASE THERE, EXCLUDED "WORKINGMEN FROM PEACEFULLY EXERCISING THE RIGHT
OF FREE COMMUNICATION BY DRAWING THE CIRCLE OF ECONOMIC COMPETITION
BETWEEN EMPLOYERS AND WORKERS SO SMALL AS TO CONTAIN ONLY AN EMPLOYER
AND THOSE DIRECTLY EMPLOYED BY HIM."  312 U.S. AT 326. 

THE WASHINGTON STATUTE HAS NOT BEEN CONSTRUED BY THE WASHINGTON
COURTS IN THIS CASE TO PROHIBIT PICKETING OF WORKERS BY OTHER WORKERS. 
THE CONSTRUCTION OF THE STATUTE WHICH WE ARE REVIEWING ONLY PROHIBITS
COERCION OF WORKERS BY EMPLOYERS.  WE CANNOT AGREE WITH PETITIONERS'
READING OF THIS INJUNCTION THAT "WHATEVER TYPES OF PICKETING WERE TO BE
CARRIED OUT BY THE UNION WOULD BE IN VIOLATION OF THE DECREE." 
RESPONDENT DOES NOT CONTEND THAT PICKETING PER SE HAS BEEN ENJOINED BUT
ONLY THAT PICKETING WHICH HAS AS ITS PURPOSE VIOLATION OF THE POLICY OF
THE STATE.  THERE IS NO CONTENTION THAT PICKETING DIRECTED AT EMPLOYEES
FOR ORGANIZATION PURPOSES WOULD BE VIOLATIVE OF THAT POLICY.  THE
DECREE DOES NOT HAVE THAT EFFECT. 

WE ARE OF THE OPINION THAT GIBONEY V. EMPIRE STORAGE & ICE CO., 336
U.S. 490, CONTROLS THE DISPOSITION OF THIS CASE, AND THAT IT THEREFORE
MUST BE AFFIRMED.  IN THE GIBONEY CASE IT IS TRUE THAT THE STATE LAW
WHICH MADE THE OBJECTIVE OF THE PICKETING UNLAWFUL HAD CRIMINAL
SANCTIONS.  THE WASHINGTON STATUTE HERE HAS NO CRIMINAL SANCTIONS. 
PETITIONERS SEEK TO DISTINGUISH GIBONEY ON THAT GROUND.  THIS COURT
THERE SAID:  "BUT PLACARDS USED AS AN ESSENTIAL AND INSEPARABLE PART OF
A GRAVE OFFENSE AGAINST AN IMPORTANT PUBLIC LAW CANNOT IMMUNIZE THAT
UNLAWFUL CONDUCT FROM STATE CONTROL.  ...  AND IT IS CLEAR THAT
APPELLANTS WERE DOING MORE THAN EXERCISING A RIGHT OF FREE SPEECH OR
PRESS.  ...  THEY WERE EXERCISING THEIR ECONOMIC POWER TOGETHER WITH
THAT OF THEIR ALLIES TO COMPEL EMPIRE TO ABIDE BY UNION RATHER THAN BY
STATE REGULATION OF TRADE."  336 U.S. AT 502-503.  IT IS NOT THE
PRESENCE OF CRIMINAL SANCTIONS WHICH MAKES A STATE POLICY "IMPORTANT
PUBLIC LAW."  MUCH PUBLIC POLICY DOES NOT READILY LEND ITSELF TO
ACCOMPANYING CRIMINAL SANCTIONS.  WHETHER TO IMPOSE CRIMINAL SANCTIONS
IN CONNECTION WITH A GIVEN POLICY IS ITSELF A QUESTION OF POLICY. 
HERE, AS IN GIBONEY, THE UNION WAS USING ITS ECONOMIC POWER WITH THAT
OF ITS ALLIES TO COMPEL RESPONDENT TO ABIDE BY UNION POLICY RATHER THAN
BY THE DECLARED POLICY OF THE STATE.  THAT STATE POLICY GUARANTEES
WORKERS FREE CHOICE OF REPRESENTATIVES FOR BARGAINING PURPOSES.  IF
RESPONDENT HAD COMPLIED WITH PETITIONERS' DEMANDS AND HAD SIGNED ONE OF
THE TENDERED CONTRACTS AND LIVED UP TO ITS TERMS, HE WOULD HAVE THEREBY
COERCED HIS EMPLOYEES.  THE EMPLOYEES WOULD HAVE HAD NO FREE CHOICE AS
TO WHETHER THEY WISHED TO ORGANIZE OR WHAT UNION WOULD BE THEIR
REPRESENTATIVE. 

THE PUBLIC POLICY OF WASHINGTON RELIED UPON BY THE COURTS BELOW TO
SUSTAIN THIS INJUNCTION IS AN IMPORTANT AND WIDELY ACCEPTED ONE.  THE
BROAD PURPOSE OF THE ACT FROM WHICH THIS POLICY FLOWS WAS TO PREVENT
UNREASONABLE JUDICIAL INTERFERENCE WITH LEGITIMATE OBJECTIVES OF
WORKERS.  BUT ABUSE BY WORKERS OR ORGANIZATIONS OF WORKERS OF THE
DECLARED PUBLIC POLICY OF SUCH AN ACT IS NO MORE TO BE CONDONED THAN
VIOLATION OF PROHIBITIONS AGAINST JUDICIAL INTERFERENCE WITH CERTAIN
ACTIVITIES OF WORKERS.  WE THEREFORE FIND NO UNWARRANTED RESTRAINT OF
PICKETING HERE.  THE INJUNCTION GRANTED WAS TAILORED TO PREVENT A
SPECIFIC VIOLATION OF AN IMPORTANT STATE LAW.  THE DECREE WAS LIMITED
TO THE WRONG BEING PERPETRATED, NAMELY, "AN ABUSIVE EXERCISE OF THE
RIGHT TO PICKET."  CAFETERIA EMPLOYEES UNION V. ANGELOS, 320 U.S. AT
295.  THE JUDGMENT AFFIRMED. 

FN1  WASHINGTON LABOR DISPUTES ACT, REM.  REV.  STAT. (SUPP. 1940)
SEC. 7612.  CERTAIN SECTIONS OF THIS ACT WERE HELD UNCONSTITUTIONAL BY
THE WASHINGTON COURT IN BLANCHARD V. GOLDEN AGE BREWING COMPANY, 188
WASH. 396, 63 P.2D 397. 

FN2  THE WASHINGTON SUPREME COURT REVIEWED ITS DECISIONS IN THIS
FIELD IN ITS FIRST OPINION IN THE INSTANT CASE.  O'NEIL V. BUILDING
SERVICE EMPLOYEES UNION, 9 WASH.2D 507, 115 P.2D 662, AND S & W FINE
FOODS V. RETAIL DELIVERY DRIVERS AND SALESMEN'S UNION, 11 WASH.2D 262,
118 P.2D 962, HAD TREATED ANY PEACEFUL PICKETING AS LAWFUL.  AMERICAN
FEDERATION OF LABOR V. SWING, 312 U.S. 321, WAS HELD TO BE CONTROLLING
IN BOTH CASES.  BUT IN THE INSTANT CASE, BOTH THE O'NEIL AND S & W
CASES WERE CHARACTERIZED AS WRONG IN PRINCIPLE AND WERE EXPRESSLY
OVERRULED.  THE COURT QUOTED FROM SWENSON V. SEATTLE CENTRAL LABOR
COUNCIL, 27 WASH.2D 193, 206, 177 P.2D 873, 880, WHERE IT WAS SAID THAT
PEACEFUL PICKETING IS AN EXERCISE OF THE RIGHT OF FREE SPEECH WHICH
LOSES THE PROTECTION OF CONSTITUTIONAL GUARANTY WHERE "IT STEPS OVER
THE LINE FROM PERSUASION TO COERCION." 

FN3  "IN THE INTERPRETATION OF THIS ACT AND IN DETERMINING THE
JURISDICTION AND AUTHORITY OF THE COURTS OF THE STATE OF WASHINGTON, AS
SUCH JURISDICTION AND AUTHORITY ARE HEREIN DEFINED AND LIMITED, THE
PUBLIC POLICY OF THE STATE OF WASHINGTON IS HEREBY DECLARED AS
FOLLOWS: 

"WHEREAS, UNDER PREVAILING ECONOMIC CONDITIONS, DEVELOPED WITH THE
AID OF GOVERNMENTAL AUTHORITY FOR OWNERS OF PROPERTY TO ORGANIZE IN THE
CORPORATE AND OTHER FORMS OF OWNERSHIP ASSOCIATION, THE INDIVIDUAL
UNORGANIZED WORKER IS COMMONLY HELPLESS TO EXERCISE ACTUAL LIBERTY OF
CONTRACT AND TO PROTECT HIS FREEDOM OF LABOR, AND THEREBY TO OBTAIN
ACCEPTABLE TERMS AND CONDITIONS OF EMPLOYMENT, WHEREFORE, THOUGH HE
SHOULD BE FREE TO DECLINE TO ASSOCIATE WITH HIS FELLOWS, IT IS
NECESSARY THAT HE HAVE FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION,
AND DESIGNATION OF REPRESENTATIVES OF HIS OWN CHOOSING, TO NEGOTIATE
THE TERMS AND CONDITIONS OF HIS EMPLOYMENT, AND THAT HE SHALL BE FREE
FROM INTERFERENCE, RESTRAINT, OR COERCION OF EMPLOYERS OF LABOR, OR
THEIR AGENTS, IN THE DESIGNATION OF SUCH REPRESENTATIVES OR IN SELF
ORGANIZATION OR IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTIONS; THEREFORE,
THE FOLLOWING DEFINITIONS OF, AND LIMITATIONS UPON, THE JURISDICTION
AND AUTHORITY OF THE COURTS OF THE STATE OF WASHINGTON ARE HEREBY
ENACTED."  REM.  REV. STAT. (SUPP. 1940) SEC. 7612-2. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THIS CASE IS CONTROLLED BY
THE PRINCIPLES ANNOUNCED IN GIBONEY V. EMPIRE STORAGE & ICE CO., 336
U.S. 490, AND THEREFORE CONCURS IN THE COURT'S JUDGMENT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
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CASSELL V. TEXAS, 339 U.S. 282 


NO. 46.  ARGUED NOVEMBER 10, 1949.  - DECIDED APRIL 24, 1950.  - 154
TEX. CR. R. - , 216 S.W.2D 813, REVERSED. 


PETITIONER, A NEGRO, WAS CONVICTED IN A TEXAS STATE COURT FOR MURDER,
NOTWITHSTANDING HIS MOTION TO QUASH THE INDICTMENT ON THE GROUND THAT
HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT HAD BEEN VIOLATED BY THE
EXCLUSION OF NEGROES FROM THE GRAND JURY.  THE JURY COMMISSIONERS
TESTIFIED THAT NO NEGROES WERE SELECTED FOR THE GRAND JURY BECAUSE THEY
CHOSE JURYMEN ONLY FROM PEOPLE WITH WHOM THEY WERE PERSONALLY
ACQUAINTED AND THEY KNEW NO NEGROES WHO WERE ELIGIBLE AND AVAILABLE FOR
GRAND-JURY SERVICE.  IT ALSO APPEARED FROM THE RECORD THAT, FROM 1942,
WHEN HILL V. TEXAS, 316 U.S. 400, WAS DECIDED, UNTIL PETITIONER'S
INDICTMENT IN 1947, THERE HAD BEEN 21 GRAND JURIES ON NONE OF WHICH WAS
THERE MORE THAN ONE NEGRO, THAT OF THE 252 MEMBERS 17(OR 6.7%) WERE
NEGROES, AND THAT ABOUT 15.5% OF THE POPULATION OF THE COUNTY AND 6.5%
OF THE ELIGIBLE VOTERS WERE NEGROES.  HELD:  THE CONVICTION IS
REVERSED.  PP. 282-298. 

CASSELL V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

THE TEXAS COURT OF CRIMINAL APPEALS AFFIRMED PETITIONER'S CONVICTION
FOR MURDER.  154 TEX. CR. R. - , 216 S.W.2D 813.  THIS COURT GRANTED
CERTIORARI.  336 U.S. 943.  REVERSED, P. 290. 

MR. JUSTICE REED ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE CLARK
CONCURRED. 

REVIEW WAS SOUGHT IN THIS CASE TO DETERMINE WHETHER THERE HAD BEEN A
VIOLATION BY TEXAS OF PETITIONER'S FEDERAL CONSTITUTIONAL RIGHT TO A
FAIR AND IMPARTIAL GRAND JURY.  THE FEDERAL QUESTION WAS RAISED BY A
MOTION TO QUASH THE INDICTMENT ON THE GROUND THAT PETITIONER, A NEGRO,
SUFFERED UNCONSTITUTIONAL DISCRIMINATION THROUGH THE SELECTION OF WHITE
MEN ONLY FOR THE GRAND JURY THAT INDICTED HIM.  AFTER FULL HEARING, THE
TRIAL COURT DENIED THE MOTION, AND THIS ACTION WAS SUSTAINED BY THE
COURT OF CRIMINAL APPEALS OF TEXAS IN AFFIRMING PETITIONER'S
CONVICTION.  CASSELL V. STATE, 154 TEX. CR. R. - , 216 S.W.2D 813. 

THE COURT OF CRIMINAL APPEALS ACCEPTED THE FEDERAL RULE THAT A NEGRO
IS DENIED THE EQUAL PROTECTION OF THE LAWS WHEN HE IS INDICTED BY A
GRAND JURY FROM WHICH NEGROES AS A RACE HAVE BEEN INTENTIONALLY
EXCLUDED.  CASSELL V. STATE, SUPRA, 154 TEX. CR. R. AT - , 216 S.W.2D
AT 819; NEAL V. DELAWARE, 103 U.S. 370, 394; SMITH V. TEXAS, 311 U.S.
128, 130; HILL V. TEXAS, 316 U.S. 400, 404; AKINS V. TEXAS, 325 U.S.
398, 403.  IT WAS FROM AN EXAMINATION OF FACTS THAT THE COURT DEDUCED
ITS CONCLUSION THAT RACIAL DISCRIMINATION HAD NOT BEEN PRACTICED. 
SINCE THE RESULT REACHED MAY DENY A FEDERAL RIGHT, WE MAY REEXAMINE THE
FACTS TO DETERMINE WHETHER PETITIONER HAS SUSTAINED BY PROOF HIS
ALLEGATION OF DISCRIMINATION N1.  CERTIORARI WAS GRANTED (336 U.S. 943)
TO CONSIDER PETITIONER'S CLAIM THAT IN THIS CASE NEGROES WERE OMITTED
FROM THE LIST OF GRAND JURYMEN EITHER BECAUSE OF DELIBERATE LIMITATION
BY THE DALLAS COUNTY JURY COMMISSIONERS, OR BECAUSE OF FAILURE BY THE
COMMISSIONERS TO ACQUAINT THEMSELVES WITH AVAILABLE NEGROES. 

ACTING UNDER THE TEXAS STATUTES,  FN2  THE DALLAS COUNTY GRAND-JURY
COMMISSIONERS CHOSE A LIST OF SIXTEEN MALES  FN3  FOR THIS SEPTEMBER
1947 GRAND JURY FROM CITIZENS ELIGIBLE UNDER THE STATUTE.  FN4  THE
JUDGE CHOSE TWELVE OF THESE FOR THE PANEL.  FN5  NO CHALLENGE IS NOW
MADE TO THE FAIRNESS OF THIS STATUTORY SYSTEM.  WE HAVE APPROVED IT.
FN6 

PETITIONER'S ATTACK IS UPON THE WAY THE STATUTORY METHOD OF GRAND
JURY SELECTION HAS BEEN ADMINISTERED BY THE JURY COMMISSIONERS.  FN7
ONE CHARGE IS THAT DISCRIMINATION MUST HAVE BEEN PRACTICED BECAUSE THE
NEGRO PROPORTION OF GRAND JURORS IS LESS THAN THE NEGRO PROPORTION OF
THE COUNTY'S POPULATION.  UNDER THE 1940 CENSUS THE TOTAL POPULATION OF
DALLAS COUNTY WAS 398,564, OF WHOM 61,605 WERE NEGROES.  FN8  THIS IS
ABOUT 15.5%.  IN WEIGHING THIS MATTER OF CUSTOM, WE LIMIT OURSELVES, AS
DO THE PARTIES, TO THE PERIOD BETWEEN JUNE 1, 1942, WHEN HILL V. TEXAS,
SUPRA, WAS DECIDED, AND NOVEMBER 1947, WHEN PETITIONER WAS INDICTED. 
THERE WERE 21 GRAND JURIES IN THIS PERIOD; OF THE 252 MEMBERS OF THE
PANELS,  FN9  17, OR 6.7%, WERE NEGROES.  BUT THIS APPARENT DISCREPANCY
MAY BE EXPLAINED BY THE FACT THAT TEXAS GRAND JURORS MUST POSSESS
CERTAIN STATUTORY QUALIFICATIONS N10.  GRAND JURORS MUST ORDINARILY BE
ELIGIBLE TO VOTE; ELIGIBILITY REQUIRES PAYMENT OF A POLL TAX; FN11  AND
THE VALIDITY OF THE POLL-TAX REQUIREMENT IS NOT CHALLENGED.  THE RECORD
SHOWS 5,500 CURRENT NEGRO POLL-TAX PAYERS IN DALLAS COUNTY IN 1947, AND
NOTHING INDICATES THAT THIS NUMBER VARIED SUBSTANTIALLY FROM YEAR TO
YEAR.  FN12  THE CORRESPONDING FIGURE FOR ALL POLL-TAX PAYERS, MALE AND
FEMALE, IS 83,667.  FN13  THESE FIGURES WOULD INDICATE THAT AS A
PROPORTIONAL MATTER 6.5% OF GRAND JURORS WOULD BE NEGROES, A PERCENTAGE
APPROXIMATING THE RATIO OF NEGROES ACTUALLY SITTING ON THE 21 GRAND
JURY PANELS.  FN14  WITHOUT MORE IT CANNOT BE SAID THAT NEGROES HAD
BEEN LEFT OFF GRAND-JURY PANELS TO SUCH A DEGREE AS TO ESTABLISH A
PRIMA FACIE CASE OF DISCRIMINATION.  FN15 

A DIFFERENT QUESTION IS PRESENTED BY PETITIONER'S NEXT CHARGE THAT
SUBSEQUENT TO THE HILL CASE THE DALLAS COUNTY GRAND-JURY COMMISSIONERS
FOR 21 CONSECUTIVE LISTS HAD CONSISTENTLY LIMITED NEGROES SELECTED FOR
GRAND-JURY SERVICE TO NOT MORE THAN ONE ON EACH GRAND JURY.  THE
CONTENTION IS THAT THE AKINS CASE HAS BEEN INTERPRETED IN DALLAS COUNTY
TO ALLOW A LIMITATION OF THE NUMBER OF NEGROES ON EACH GRAND JURY,
PROVIDED THE LIMITATION IS APPROXIMATELY PROPORTIONAL TO THE NUMBER OF
NEGROES ELIGIBLE FOR GRAND-JURY SERVICE.  SINCE THE HILL CASE THE
JUDGES OF THE TRIAL COURT HAVE BEEN CAREFUL TO INSTRUCT THEIR JURY
COMMISSIONERS THAT DISCRIMINATION ON GROUNDS OF RACE OR COLOR IS
FORBIDDEN.  FN16  THE JUDGE DID SO HERE.  FN17  IF, NOTWITHSTANDING
THIS CAUTION BY THE TRIAL COURT JUDGES, COMMISSIONERS SHOULD LIMIT
PROPORTIONALLY THE NUMBER OF NEGROES SELECTED FOR GRAND-JURY SERVICE,
SUCH LIMITATION WOULD VIOLATE OUR CONSTITUTION.  JURYMEN SHOULD BE
SELECTED AS INDIVIDUALS, ON THE BASIS OF INDIVIDUAL QUALIFICATIONS, AND
NOT AS MEMBERS OF A RACE. 

WE HAVE RECENTLY WRITTEN WHY PROPORTIONAL REPRESENTATION OF RACES ON
A JURY IS NOT A CONSTITUTIONAL REQUISITE.  FN18  SUCCINCTLY STATED, OUR
REASON WAS THAT THE CONSTITUTION REQUIRES ONLY A FAIR JURY SELECTED
WITHOUT REGARD TO RACE.  OBVIOUSLY THE NUMBER OF RACES AND
NATIONALITIES APPEARING IN THE ANCESTRY OF OUR CITIZENS WOULD MAKE IT
IMPOSSIBLE TO MEET A REQUIREMENT OF PROPORTIONAL REPRESENTATION. 
SIMILARLY, SINCE THERE CAN BE NO EXCLUSION OF NEGROES AS A RACE AND NO
DISCRIMINATION BECAUSE OF COLOR,  FN19  PROPORTIONAL LIMITATION IS NOT
PERMISSIBLE.  THAT CONCLUSION IS COMPELLED BY THE U.S.C.  TITLE 18,
SEC. 243,  FN20  BASED ON SEC. 4 OF THE CIVIL RIGHTS ACT OF 1875. 
WHILE THE LANGUAGE OF THE SECTION DIRECTS ATTENTION TO THE RIGHT TO
SERVE AS A JUROR, ITS COMMAND HAS LONG BEEN RECOGNIZED ALSO TO ASSURE
RIGHTS TO AN ACCUSED.  PROHIBITING RACIAL DISQUALIFICATION OF NEGROES
FOR JURY SERVICE, THIS CONGRESSIONAL ENACTMENT UNDER THE FOURTEENTH
AMENDMENT, SEC. 5,  FN21  HAS BEEN CONSISTENTLY SUSTAINED AND ITS
VIOLATION HELD TO DENY A PROPER TRIAL TO A NEGRO ACCUSED.  FN22
PROPORTIONAL RACIAL LIMITATION IS THEREFORE FORBIDDEN.  AN ACCUSED IS
ENTITLED TO HAVE CHARGES AGAINST HIM CONSIDERED BY A JURY IN THE
SELECTION OF WHICH THERE HAS BEEN NEITHER INCLUSION NOR EXCLUSION
BECAUSE OF RACE. 

OUR HOLDING THAT THERE WAS DISCRIMINATION IN THE SELECTION OF GRAND
JURORS IN THIS CASE, HOWEVER, IS BASED ON ANOTHER GROUND.  IN
EXPLAINING THE FACT THAT NO NEGROES APPEARED ON THIS GRAND-JURY LIST,
THE COMMISSIONERS SAID THAT THEY KNEW NONE AVAILABLE WHO QUALIFIED; AT
THE SAME TIME THEY SAID THEY CHOSE JURYMEN ONLY FROM THOSE PEOPLE WITH
WHOM THEY WERE PERSONALLY ACQUAINTED.  FN23  IT MAY BE ASSUMED THAT IN
ORDINARY ACTIVITIES IN DALLAS COUNTY, ACQUAINTANCESHIP BETWEEN THE
RACES IS NOT ON A SUFFICIENTLY FAMILIAR BASIS TO GIVE CITIZENS ELIGIBLE
FOR APPOINTMENT AS JURY COMMISSIONERS AN OPPORTUNITY TO KNOW THE
QUALIFICATIONS FOR GRAND-JURY SERVICE OF MANY MEMBERS OF ANOTHER RACE. 
AN INDIVIDUAL'S QUALIFICATIONS FOR GRAND-JURY SERVICE, HOWEVER, ARE NOT
HARD TO ASCERTAIN,  FN24  AND WITH NO EVIDENCE TO THE CONTRARY, WE MUST
ASSUME THAT A LARGE PROPORTION OF THE NEGROES OF DALLAS COUNTY MET THE
STATUTORY REQUIREMENTS FOR JURY SERVICE.  FN25  WHEN THE COMMISSIONERS
WERE APPOINTED AS JUDICIAL ADMINISTRATIVE OFFICIALS, IT WAS THEIR DUTY
TO FAMILIARIZE THEMSELVES FAIRLY WITH THE QUALIFICATIONS OF THE
ELIGIBLE JURORS OF THE COUNTY WITHOUT REGARD TO RACE AND COLOR.  FN26
THEY DID NOT DO SO HERE, AND THE RESULT HAS BEEN RACIAL
DISCRIMINATION.  WE REPEAT THE RECENT STATEMENT OF CHIEF JUSTICE STONE
IN HILL V. TEXAS, 316 U.S. 400, 404: 

"DISCRIMINATION CAN ARISE FROM THE ACTION OF COMMISSIONERS WHO
EXCLUDE ALL NEGROES WHOM THEY DO NOT KNOW TO BE QUALIFIED AND WHO
NEITHER KNOW NOR SEEK TO LEARN WHETHER THERE ARE IN FACT ANY QUALIFIED
TO SERVE.  IN SUCH A CASE, DISCRIMINATION NECESSARILY RESULTS WHERE
THERE ARE QUALIFIED NEGROES AVAILABLE FOR JURY SERVICE.  WITH THE LARGE
NUMBER OF COLORED MALE RESIDENTS OF THE COUNTY WHO ARE LITERATE, AND IN
THE ABSENCE OF ANY COUNTERVAILING TESTIMONY, THERE IS NO ROOM FOR
INFERENCE THAT THERE ARE NOT AMONG THEM HOUSEHOLDERS OF GOOD MORAL
CHARACTER, WHO CAN READ AND WRITE, QUALIFIED AND AVAILABLE FOR GRAND
JURY SERVICE." 

THE EXISTENCE OF THE KIND OF DISCRIMINATION DESCRIBED IN THE HILL
CASE DOES NOT DEPEND UPON SYSTEMATIC EXCLUSION CONTINUING OVER A LONG
PERIOD AND PRACTICED BY A SUCCESSION OF JURY COMMISSIONERS.  SINCE THE
ISSUE MUST BE WHETHER THERE HAS BEEN DISCRIMINATION IN THE SELECTION OF
THE JURY THAT HAS INDICTED PETITIONER, IT IS ENOUGH TO HAVE DIRECT
EVIDENCE BASED ON THE STATEMENTS OF THE JURY COMMISSIONERS IN THE VERY
CASE.  DISCRIMINATION MAY BE PROVED IN OTHER WAYS THAN BY EVIDENCE OF
LONG-CONTINUED UNEXPLAINED ABSENCE OF NEGROES FROM MANY PANELS.  THE
STATEMENTS OF THE JURY COMMISSIONERS THAT THEY CHOSE ONLY WHOM THEY
KNEW, AND THAT THEY KNEW NO ELIGIBLE NEGROES IN AN AREA WHERE NEGROES
MADE UP SO LARGE A PROPORTION OF THE POPULATION, PROVE THE INTENTIONAL
EXCLUSION THAT IS DISCRIMINATION IN VIOLATION OF PETITIONER'S
CONSTITUTIONAL RIGHTS. 

THE JUDGMENT OF THE COURT OF CRIMINAL APPEALS OF TEXAS IS REVERSED. 

FN1  NORRIS V. ALABAMA, 294 U.S. 587, 590; PIERRE V. LOUISIANA, 306
U.S. 354, 358; SMITH V. TEXAS, 311 U.S. 128, 130; FAY V. NEW YORK, 332
U.S. 261, 272. 

FN2  TEXAS CODE OF CRIMINAL PROCEDURE (VERNON, 1948), ARTS. 333-340. 

FN3  ID., ART. 338.  UNDER THE TEXAS CONSTITUTION AND STATUTES, WOMEN
MAY NOT SERVE ON TEXAS JURIES.  TEXAS CONSTITUTION, ART. 5, SEC. 13;
HARPER V. STATE, 90 TEX. CR. R. 252, 234 S.W. 909. 

FN4  TEXAS CODE OF CRIMINAL PROCEDURE (VERNON, 1948): 

"ART. 339.  ...  NO PERSON SHALL BE SELECTED OR SERVE AS A GRAND
JUROR WHO DOES NOT POSSESS THE FOLLOWING QUALIFICATIONS: 

"1.  HE MUST BE A CITIZEN OF THE STATE, AND OF THE COUNTY IN WHICH HE
IS TO SERVE, AND QUALIFIED UNDER THE CONSTITUTION AND LAWS TO VOTE IN
SAID COUNTY; BUT, WHENEVER IT SHALL BE MADE TO APPEAR TO THE COURT THAT
THE REQUISITE NUMBER OF JURORS WHO HAVE PAID THEIR POLL TAXES CAN NOT
BE FOUND WITHIN THE COUNTY, THE COURT SHALL NOT REGARD THE PAYMENT OF
POLL TAXES AS A QUALIFICATION FOR SERVICE AS A JUROR. 

"2.  HE MUST BE A FREEHOLDER WITHIN THE STATE, OR A HOUSEHOLDER
WITHIN THE COUNTY. 

"3.  HE MUST BE OF SOUND MIND AND GOOD MORAL CHARACTER. 

"4.  HE MUST BE ABLE TO READ AND WRITE. 

"5.  HE MUST NOT HAVE BEEN CONVICTED OF ANY FELONY. 

"6.  HE MUST NOT BE UNDER INDICTMENT OR OTHER LEGAL ACCUSATION FOR
THEFT OR OF ANY FELONY." 

FN5  ID., ART. 357. 

FN6  SMITH V. TEXAS, SUPRA, P. 130.  SEE ZIMMERMAN V. STATE, 59 A.2D
675, 676-77, AFFIRMED UNDER TITLE ZIMMERMAN V. MARYLAND, 336 U.S. 901;
FAY V. NEW YORK, 332 U.S. 261, 266, 272; MORSE, A SURVEY OF THE GRAND
JURY SYSTEM, PART II, 10 ORE.  L. REV. 217, 226-239. 

FN7  THERE IS NO SUGGESTION IN THE CASE THAT ANY JUDGE OF THE COUNTY
TRIAL COURTS DISCRIMINATED AGAINST NEGROES IN HIS SELECTION FROM THE
LISTS OF THE MEMBERS FOR THE GRAND JURIES. 

FN8  SIXTEENTH CENSUS OF THE UNITED STATES:  1940, POPULATION, VOLUME
II, PART 6, P. 795. 

FN9  WE USE THE WORD "PANEL" TO MEAN THE GRAND JURY WHICH IS THE
FINAL RESULT OF THE STATUTORY PROCEDURE.  SEE TEXAS CODE OF CRIMINAL
PROCEDURE, ART. 360.  THE RECORD DOES NOT INDICATE THE NUMBER OF
NEGROES WHO WERE PLACED ON THE LISTS OF SIXTEEN, BUT DID NOT SERVE. 
ALL THAT APPEARS IN THIS CONNECTION IS THAT NO NEGROES WERE PLACED ON
THE LIST IN THIS CASE. 

FN10  SEE NOTE 4, SUPRA. 

FN11  TEXAS CONSTITUTION, ART. 6, SEC. 2; VERNON'S TEXAS STATUTES,
1948, ART. 2955; CONKLIN V. STATE, 144 TEX. CR. R. 210, 162 S.W.2D
416. 

FN12  THERE IS SOME OBSCURITY IN THE RECORD AS TO WHETHER THE ABOVE
FIGURE OF NEGRO POLL-TAX PAYERS REFERS TO MALES ONLY OR TO MEN AND
WOMEN.  154 TEX. CR. R. - ,  - ,  - , 216 S.W.2D 813, 816, 819.  THE
TESTIMONY AND THE STATISTICS IN THE BRIEFS CAUSE US TO CONCLUDE THAT
THE FIGURE REFERS TO ALL ELIGIBLE NEGRO VOTERS. 

FN13  TEXAS ALMANAC, 1947-1948, P. 421. 

FN14  IN OUR COMPUTATIONS WE HAVE USED STATISTICS WHICH INCLUDE BOTH
MEN AND WOMEN, BECAUSE IN MANY CASES STATISTICAL BREAKDOWNS IN TERMS OF
SEX ARE NOT AVAILABLE.  ALTHOUGH ONLY MEN MAY SERVE ON THE GRAND
JURIES, THE USE OF TOTALS INCLUDING BOTH SEXES SHOULD MAKE FOR ONLY
MINOR VARIATIONS IN THE PERCENTAGES. 

FN15  COMPARE NORRIS V. ALABAMA, 294 U.S. 587, 591; PIERRE V.
LOUISIANA, 306 U.S. 354, 361; SMITH V. TEXAS, 311 U.S. 128, 129; HILL
V. TEXAS, 316 U.S. 400, 401-403. 

FN16  AKINS V. TEXAS, 325 U.S. 398, 404. 

FN17  CASSELL V. STATE, 154 TEX. CR. R. - , 216 S.W.2D 813. 

FN18  AKINS V. TEXAS, SUPRA, 403. 

FN19  NEAL V. DELAWARE, 103 U.S. 370, 394; AKINS V. TEXAS, SUPRA,
404. 

FN20  "NO CITIZEN POSSESSING ALL OTHER QUALIFICATIONS WHICH ARE OR
MAY BE PRESCRIBED BY LAW SHALL BE DISQUALIFIED FOR SERVICE AS GRAND OR
PETIT JUROR IN ANY COURT OF THE UNITED STATES, OR OF ANY STATE ON
ACCOUNT OF RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE; AND
WHOEVER, BEING AN OFFICER OR OTHER PERSON CHARGED WITH ANY DUTY IN THE
SELECTION OR SUMMONING OF JURORS, EXCLUDES OR FAILS TO SUMMON ANY
CITIZEN FOR SUCH CAUSE, SHALL BE FINED NOT MORE THAN $5,000."    FN21
"SECTION 5.  THE CONGRESS SHALL HAVE POWER TO ENFORCE, BY APPROPRIATE
LEGISLATION, THE PROVISIONS OF THIS ARTICLE." 

FN22  SEE NEAL V. DELAWARE, SUPRA, 385, 386; HILL V. TEXAS, SUPRA,
404; FAY V. NEW YORK, SUPRA, 284. 

FN23  ONE COMMISSIONER SAID:  "I WAS NOT PERSONALLY ACQUAINTED WITH
ANY NEGRO CITIZEN OF DALLAS COUNTY THAT I THOUGHT WAS QUALIFIED TO SIT
ON THE GRAND JURY, AT THAT TIME.  I DID NOT KNOW A ONE PERSONALLY THAT
I WOULD RECOMMEND, MYSELF, AT THAT TIME. 

"  ...  THE REASON THAT I DID NOT SUBMIT THE NAME OF A NEGRO IN MY 6
NAMES THAT I SUBMITTED WAS BECAUSE I DID NOT KNOW ANY NEGRO CITIZEN
THAT I FELT WAS QUALIFIED WITH REFERENCE TO EDUCATION AND BUSINESS
ABILITY TO SERVE ON THIS GRAND JURY." 

ANOTHER SAID: 

"WE DID NOT SELECT A NEGRO WHEN I SERVED AS A COMMISSIONER; WE DID
DISREGARD COLOR, RACE OR CREED; I DID NOT KNOW PLENTY OF NEGROES THAT I
SAID WOULD BE QUALIFIED.  I KNOW A LOT OF NEGROES THAT ARE QUALIFIED
LAWYERS, DOCTORS, SUPERINTENDENTS OF SCHOOLS AND THAT SORT OF THING BUT
THE PARTICULAR THING IS THAT THEIR OCCUPATION PRECLUDES THEIR SERVING. 
YOU COULD NOT ASK A DOCTOR OR LAWYER TO SERVE 3 MONTHS OF THEIR TIME,
EITHER WHITE OR COLORED; THAT LIMITED US AS TO THE NUMBER THAT WE COULD
SELECT.  I KNEW A LOT OF WHITE AND COLORED PEOPLE THAT WERE QUALIFIED. 

"I DID NOT SELECT A NEGRO ON THIS GRAND JURY PANEL BUT I TRIED." 
THIS COMMISSIONER HAD SOUGHT A NEGRO HIGH SCHOOL PRINCIPAL FOR THE
LIST. 

THE THIRD SAID:  "THE REASON A NEGRO WAS NOT SELECTED WAS NOT BECAUSE
WE DISCRIMINATED; I ONLY APPOINTED THOSE THAT I PERSONALLY KNEW TO BE
QUALIFIED. 

     .         .         .         .         . 

"IF THE NAME OF ANY QUALIFIED NEGRO CITIZEN - BEEN SUBMITTED AT THAT
TIME, WHO HAD GIVEN HIS PERMISSION AND SAID THAT HE HAD TIME TO SERVE,
I CERTAINLY WOULD HAVE SUBMITTED HIS NAME ALONG WITH THE OTHER 15
NAMES, IF IT WAS SOMEBODY THAT WOULD HAVE BEEN ACCEPTABLE TO ME." 

FN24  SEE TEXAS CODE OF CRIMINAL PROCEDURE, ARTS. 339, 355. 

IN LARGE CENTERS METHODS OF SELECTION OTHER THAN PERSONAL
ACQUAINTANCESHIP HAVE BEEN FOUND CONVENIENT.  FAY V. NEW YORK, 332 U.S.
261. 

FN25  PIERRE V. LOUISIANA, 306 U.S. 354, 360. 

FN26  SMITH V. TEXAS, SUPRA, 131-132.  THERE WAS A FURTHER DISCUSSION
OF THE DUTY OF JURY COMMISSIONERS TO FAMILIARIZE THEMSELVES WITH JURY
ELIGIBLES IN HILL V. STATE, 144 TEX. CR. R. 415, 418, 157 S.W.2D 369,
371.  THE COMMISSIONERS' LACK OF ACQUAINTANCE WITH AVAILABLE NEGROES
WAS NOT DEEMED SUFFICIENT BY THE STATE COURT TO JUSTIFY REVERSAL.  WE
DISAGREED AND REVERSED.  316 U.S. 400. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BURTON AND MR. JUSTICE
MINTON JOIN, CONCURRING IN THE JUDGMENT. 

IT HAS BEEN SETTLED LAW SINCE 1880 THAT THE CIVIL WAR AMENDMENTS
BARRED THE STATES FROM DISCRIMINATING BECAUSE OF RACE IN THE SELECTION
OF JURIES, WHETHER GRAND OR PETTY.  AS A RESULT, A CONVICTION CANNOT
STAND WHICH IS BASED ON AN INDICTMENT FOUND BY A GRAND JURY FROM WHICH
NEGROES WERE KEPT BECAUSE OF DISCRIMINATION.  NEAL V. DELAWARE, 103
U.S. 370; PIERRE V. LOUISIANA, 306 U.S. 354.  WE OUGHT NOT TO REVERSE A
COURSE OF DECISIONS OF LONG STANDING DIRECTED AGAINST RACIAL
DISCRIMINATION IN THE ADMINISTRATION OF JUSTICE.  BUT DISCRIMINATION IN
THIS CONTEXT MEANS PURPOSEFUL, SYSTEMATIC NON-INCLUSION BECAUSE OF
COLOR.  HILL V. TEXAS, 316 U.S. 400.  IT DOES NOT MEAN AN ABSENCE OF
PROPORTIONAL REPRESENTATION OF THE VARIOUS RACIAL COMPONENTS OF THE
RELEVANT POLITICAL UNIT FROM WHICH A GRAND JURY IS DRAWN OR AN ISOLATED
INSTANCE OF DISPARITY AMONG SUCH COMPONENTS.  AKINS V. TEXAS, 325 U.S.
398, 403; FAY V. NEW YORK, 332 U.S. 261, 284.  ASSUMING THAT THE GRAND
JURY POOL FAIRLY ENOUGH REFLECTS THE RACIAL COMPOSITION OF THE
COMMUNITY, THERE IS NO BASIS FOR A CLAIM OF CONSTITUTIONAL
DISCRIMINATION IF WITHOUT DESIGN IT COMES TO PASS THAT A PARTICULAR
GRAND JURY HAS NO REPRESENTATION OF A PARTICULAR RACE.  THE CIVIL WAR
AMENDMENTS DID NOT DEPRIVE THE STATES OF THEIR POWER TO DEFINE
QUALIFICATIONS FOR GRAND-JURY SERVICE RELEVANT TO THE FUNCTIONS OF A
GRAND JURY, NOR DID THEY TURN MATTERS THAT ARE INHERENTLY
INCOMMENSURABLE INTO MERE MATTERS OF ARITHMETIC.  THE CONSTITUTION HAS
NOT WITHDRAWN THE ADMINISTRATION OF CRIMINAL JUSTICE, OF WHICH THE JURY
SYSTEM IS A PART, FROM THE STATES.  IT DOES COMMAND THAT NO STATE
PURPOSEFULLY MAKE JURY SERVICE TURN ON COLOR. 

A CLAIM THAT THE CONSTITUTIONAL PROHIBITION OF DISCRIMINATION WAS
DISREGARDED CALLS FOR ASCERTAINMENT OF TWO KINDS OF ISSUES WHICH OUGHT
NOT TO BE CONFUSED BY BEING COMPENDIOUSLY CALLED "FACTS."  THE
DEMONSTRABLE, OUTWARD EVENTS BY WHICH A GRAND JURY CAME INTO BEING
RAISE ISSUES QUITE DIFFERENT FROM THE FAIR INFERENCES TO BE DRAWN FROM
WHAT TOOK PLACE IN DETERMINING THE CONSTITUTIONAL QUESTION:  WAS THERE
A PURPOSEFUL NON-INCLUSION OF NEGROES BECAUSE OF RACE OR A MERELY
SYMBOLIC REPRESENTATION, NOT THE OPERATION OF AN HONEST EXERCISE OF
RELEVANT JUDGMENT OR THE UNCONTROLLED CAPRICES OF CHANCE? 

THIS COURT DOES NOT SIT AS A JURY TO WEIGH CONFLICTING EVIDENCE ON
UNDERLYING DETAILS, AS FOR INSTANCE WHAT STEPS WERE TAKEN TO MAKE UP
THE JURY LIST, WHY ONE PERSON WAS REJECTED AND ANOTHER TAKEN, WHETHER
NAMES WERE PICKED BLINDLY OR CHOSEN BY JUDGMENT.  THIS IS NOT THE PLACE
FOR DISPUTATION ABOUT WHAT REALLY HAPPENED.  ON THAT WE ACCEPT THE
FINDINGS OF THE STATE COURT.  BUT IT IS FOR THIS COURT TO DEFINE THE
CONSTITUTIONAL STANDARDS BY WHICH THOSE FINDINGS ARE TO BE JUDGED. 
THEREBY THE DUTY OF SECURING OBSERVANCE OF THESE STANDARDS MAY FALL
UPON THIS COURT.  THE MEANING OF UNCONTROVERTIBLE FACTS IN RELATION TO
THE ULTIMATE ISSUE OF DISCRIMINATION IS PRECISELY THE CONSTITUTIONAL
ISSUE ON WHICH THIS COURT MUST PASS.  SEE WATTS V. INDIANA, 338 U.S.
49, 50-51.  OF COURSE EVEN AS TO THIS, AS ALWAYS WHEN A STATE COURT
JUDGMENT IS CLAIMED TO BE IN DISREGARD OF THE CONSTITUTION, APPROPRIATE
RESPECT SHOULD BE GIVEN TO THE JUDGMENT OF THE STATE COURT.  AND SO WE
ARE BROUGHT TO THIS CASE. 

IF THE RECORD HERE SHOWED NO MORE THAN THAT THE GRAND-JURY
COMMISSIONERS HAD CONSIDERED THE NEGROES WITH WHOM THEY WERE ACQUAINTED
- JUST AS THEY CONSIDERED WHITE PERSONS WHOM THEY KNEW - AND HAD FOUND
THEM TO BE EITHER UNQUALIFIED FOR GRAND-JURY SERVICE OR QUALIFIED BUT
UNAVAILABLE, AND DID SO NOT DESIGNEDLY TO EXCLUDE NEGROES, THE STATE
COURT'S VALIDATION OF THE LOCAL PROCEDURE WOULD HAVE TO PREVAIL.  WE
OUGHT NOT TO GO BEHIND SUCH A CONSCIENTIOUS PROCESS, HOWEVER ROUGH AND
READY THE PROCEDURE OF SELECTION BY JURY COMMISSIONERS.  TO FIND IN
SUCH HONEST EVEN IF PRAGMATIC SELECTION OF GRAND JURORS THE OPERATION
OF UNCONSTITUTIONAL STANDARDS WOULD TURN THIS COURT INTO AN AGENCY FOR
SUPERVISING THE CRIMINAL PROCEDURE OF THE FORTY-EIGHT STATES.  SUCH AN
ASSUMPTION OF AUTHORITY BY THIS COURT WOULD JEOPARDIZE THE PRACTICAL
FUNCTIONING OF GRAND JURIES THROUGHOUT THE COUNTRY IN VIEW OF THE GREAT
VARIETY OF MINORITY GROUPS THAT COMPOSE OUR SOCIETY. 

A DIFFERENT SITUATION WOULD BE PRESENTED BY AN UNQUESTIONED SHOWING
THAT JURY COMMISSIONERS HAD SUCH A LIMITED PERSONAL KNOWLEDGE OF
POTENTIALLY QUALIFIED NEGRO JURORS THAT THEIR PURPOSEFUL LIMITATION OF
CHOICE TO THE NEGLIGIBLY FEW NEGROES KNOWN TO THEM WOULD INEVITABLY
IMPLY DESIGNED EXCLUSION OF ELIGIBLE NEGROES.  THE RECORD HERE AFFORDS
NO BASIS WHATEVER FOR SUCH A FINDING.  IT INDICATES THE CONTRARY. 

THE RECORD DOES DISCLOSE STARK FACTS REQUIRING REVERSAL ON A VERY
DIFFERENT BASIS.  IF ONE FACTOR IS UNIFORM IN A CONTINUING SERIES OF
EVENTS THAT ARE BROUGHT TO PASS THROUGH HUMAN INTERVENTION, THE LAW
WOULD HAVE TO HAVE THE BLINDNESS OF INDIFFERENCE RATHER THAN THE
BLINDNESS OF IMPARTIALITY NOT TO ATTRIBUTE THE UNIFORM FACTOR TO MAN'S
PURPOSE.  THE PURPOSE MAY NOT BE OF EVIL INTENT OR IN CONSCIOUS
DISREGARD OF WHAT IS CONCEIVED TO BE A BINDING DUTY.  PROHIBITED
CONDUCT MAY RESULT FROM MISCONCEPTION OF WHAT DUTY REQUIRES.  SUCH
MISCONCEPTION I BELIEVE TO BE THE REAL SITUATION ON THE RECORD BEFORE
US. 

THE GOVERNING FACTS ARE BRIEFLY STATED.  IN HILL V. TEXAS, SUPRA,
THIS COURT FOUND DISCRIMINATION IN THE SELECTION OF GRAND JURORS IN
DALLAS COUNTY, TEXAS, BY VIRTUE OF THE FACT THAT, DESPITE A LARGE
NUMBER OF NEGROES QUALIFIED FOR GRAND-JURY SERVICE, NONE HAD BEEN
DRAWN.  IN THE COURSE OF THE FIVE AND A HALF YEARS BETWEEN THAT
DECISION AND THE TIME OF THE DRAWING OF THE GRAND JURY WHICH FOUND THE
INDICTMENT NOW CHALLENGED, THERE WERE TWENTY-ONE GRAND-JURY PANELS. 
FN1  ON EACH OF THESE TWENTY-ONE CONSECUTIVE PANELS THERE WAS NEVER
MORE THAN ONE NEGRO.  THIS SELECTION WAS MADE FROM LISTS WHICH WERE NOT
THE RESULT OF A DRAWING OF LOTS BUT THE PERSONAL CHOICE OF THE GRAND
JURY COMMISSIONERS.  THE AVAILABLE EVIDENCE CLEARLY INDICATES THAT NO
MORE THAN ONE NEGRO WAS CHOSEN BY THE COMMISSIONERS FOR EACH OF THE
TWENTY-ONE LISTS.  ONLY ONE NEGRO WAS PLACED ON THE LIST - HE DID NOT
SERVE ON THE PANEL - FOR THE SECOND GRAND JURY IN DALLAS COUNTY AFTER
THE DECISION IN HILL V. TEXAS.  AGAIN, AS TO THE GRAND JURY WHICH
FIGURED IN AKINS V. TEXAS, SUPRA, ONLY ONE NEGRO WAS PLACED ON THE
LIST, AND HE SERVED AS A GRAND JUROR.  325 U.S. AT 405.  AND IN WEEMS
V. STATE, 148 TEX. CRIM. 154, 157, 185 S.W.2D 431, 433, IT WAS
STIPULATED THAT ONLY ONE NEGRO, WHO DID NOT SERVE ON THE PANEL, WAS ON
THE LIST.  IN THE PRESENT CASE IT IS CONCEDED THAT NO NEGRO WAS PLACED
ON THE LIST.  THE STATE MAKES NO CONTRARY CLAIM AS TO ANY OF THE OTHER
GRAND-JURY LISTS THOUGH THE FACTS REGARDING THEM ARE PECULIARLY WITHIN
THE STATE'S KNOWLEDGE.  IN VIEW OF THIS BACKGROUND, THE ASSUMPTION THAT
MORE THAN ONE NEGRO WAS PLACED ON THE LISTS IS INCONCEIVABLE. 

TO ASSUME THAT THE COMMISSIONERS DID TENDER TO THE JUDGES LISTS
CONTAINING MORE THAN ONE NEGRO WOULD LEAD INESCAPABLY TO THE CONCLUSION
THAT THE JUDGES SYSTEMATICALLY DISCRIMINATED AGAINST NEGROES.  THIS IS
SO BECAUSE IT JUST DOES NOT HAPPEN THAT FROM LISTS OF SIXTEEN IT IS
ALWAYS NEGROES (BARRING ONE) THAT JUDGES UNPURPOSEFULLY REJECT.  I
CANNOT ATTRIBUTE SUCH DISCRIMINATION TO THE TRIAL JUDGES OF DALLAS
COUNTY.  I CAN DECLINE TO ATTRIBUTE SUCH DISCRIMINATION TO THESE JUDGES
ONLY BY CONCLUDING THAT THE JUDGES WERE NEVER GIVEN THE OPPORTUNITY TO
SELECT MORE THAN ONE NEGRO. 

THE GRAND-JURY COMMISSIONERS HERE RECEIVED INSTRUCTIONS FROM THE
JUDGE NOT TO "DISCRIMINATE," AND I HAVE NO DOUBT THAT THEY TRIED
CONSCIENTIOUSLY TO ABIDE BY THEM.  THE DIFFICULTY LIES IN WHAT THEY
CONCEIVED TO BE THE STANDARD FOR DETERMINING DISCRIMINATION, AS
REVEALED BY THEIR ACTION.  THE NUMBER OF NEGROES BOTH QUALIFIED AND
AVAILABLE FOR JURY SERVICE IN DALLAS COUNTY PRECLUDED SUCH UNIFORM
PRESENCE OF NEVER MORE THAN ONE NEGRO ON ANY OTHER BASIS OF GOOD FAITH
THAN THAT THE COMMISSIONERS WERE GUIDED BY THE BELIEF THAT ONE NEGRO ON
THE GRAND JURY SATISFIED THE PROHIBITION AGAINST DISCRIMINATION IN HILL
V. TEXAS.  THAT THIS WAS THEIR VIEW IS COMPELLED BY THEIR TESTIMONY AT
THE HEARING ON THE MOTION TO QUASH THE INDICTMENT.  FN2 

THIS IS OF COURSE A MISCONCEPTION.  THE PROHIBITION OF THE
CONSTITUTION AGAINST DISCRIMINATION BECAUSE OF COLOR DOES NOT REQUIRE
IN AND OF ITSELF THE PRESENCE OF A NEGRO ON A JURY.  BUT NEITHER IS IT
SATISFIED BY NEGRO REPRESENTATION ARBITRARILY LIMITED TO ONE.  IT IS
NOT A QUESTION OF PRESENCE ON A GRAND JURY NOR ABSENCE FROM IT.  THE
BASIS OF SELECTION CANNOT CONSCIOUSLY TAKE COLOR INTO ACCOUNT.  SUCH IS
THE COMMAND OF THE CONSTITUTION.  ONCE THAT RESTRICTION UPON THE
STATE'S FREEDOM IN DEVISING AND ADMINISTERING ITS JURY SYSTEM IS
OBSERVED, THE STATES ARE MASTERS IN THEIR OWN HOUSEHOLD.  IF IT IS
OBSERVED, THEY CANNOT BE CHARGED WITH DISCRIMINATION BECAUSE OF COLOR,
NO MATTER WHAT THE COMPOSITION OF A GRAND JURY MAY TURN OUT TO BE. 

ON THIS RECORD I CANNOT ESCAPE THE CONCLUSION THAT THE JUDGMENT BELOW
IS NOT BASED ON AN ALLOWABLE FINDING OF FACTS BEHIND WHICH THIS COURT
CANNOT GO.  IT DERIVES FROM THE ULTIMATE CONSTITUTIONAL SIGNIFICANCE OF
UNDISPUTED FACTS.  THESE BEAR NO OTHER RATIONAL MEANING THAN PURPOSEFUL
DISCRIMINATION.  IT DOES NOT NEUTRALIZE THE DISCRIMINATION THAT IT MAY
WELL HAVE BEEN DUE TO A MISCONCEPTION BY THE GRAND-JURY COMMISSIONERS
OF THE REQUIREMENTS OF THIS COURT'S DECISIONS. 

THIS COMPELS REVERSAL OF THE JUDGMENT. 

FN1  I USE THE TERM "PANEL," AS DOES MR. JUSTICE REED IN HIS OPINION,
TO MEAN THE GRAND JURY OF TWELVE SELECTED FROM THE LIST OF SIXTEEN
PERSONS TENDERED TO THE JUDGE BY THE GRAND-JURY COMMISSIONERS. 

FN2  THE FOLLOWING IS A FAIR COMPILATION OF THE TESTIMONY OF THE
THREE GRAND-JURY COMMISSIONERS ON THIS POINT: 

"  ...  IT WAS DISCUSSED IN THE JURY ROOM (AMONG) WE COMMISSIONERS
THAT AN EFFORT HAD BEEN MADE TO SECURE A NEGRO FOR THE GRAND JURY  ...
" 

"THE REASON THAT A NEGRO WAS NOT PUT ON THIS GRAND JURY PANEL WAS NOT
BECAUSE I HAD NOT MADE AN EFFORT TO SECURE ONE  ...  " 

"I DID NOT SELECT A NEGRO ON THIS GRAND JURY PANEL BUT I TRIED." 

"AS FAR AS I KNOW, THERE WAS NOT A NEGRO ON THE OCTOBER, 1947, TERM
OF GRAND JURY; I HAVE NEVER SEEN THEM IN A BODY.  WHEN THE INFORMATION
CAME TO ME I TRIED TO CONTACT A NEGRO  ...  " 

"THE REASON A NEGRO WAS NOT SELECTED WAS NOT BECAUSE WE DISCRIMINATED
...  " 

"IF THE NAME OF ANY QUALIFIED NEGRO CITIZEN (HAD) BEEN SUBMITTED AT
THAT TIME, WHO HAD GIVEN HIS PERMISSION AND SAID THAT HE HAD TIME TO
SERVE, I CERTAINLY WOULD HAVE SUBMITTED HIS NAME ALONG WITH THE OTHER
15 NAMES, IF IT WAS SOMEBODY THAT WOULD HAVE BEEN ACCEPTABLE TO ME." 

MR. JUSTICE CLARK, CONCURRING.    FOR THE REASONS STATED BY MR.
JUSTICE JACKSON, IT SEEMS TO ME QUITE DOUBTFUL AS AN ORIGINAL ISSUE
WHETHER A CONVICTION SHOULD BE REVERSED BECAUSE OF PURPOSEFUL EXCLUSION
OF THE MEMBERS OF A RACE FROM THE GRAND JURY WHICH RETURNED THE
INDICTMENT.  HOWEVER, I THINK WE MUST ADHERE TO THE SETTLED COURSE OF
DECISION BY THIS COURT WITH RESPECT TO SUCH EXCLUSION. 

I AM UNABLE TO CONCLUDE THAT FROM THE DATE OF THE DECISION IN HILL V.
TEXAS, 316 U.S. 400(1942) TO THE DATE OF THE TRIAL OF THIS CASE THERE
HAS BEEN PURPOSEFUL SYSTEMATIC LIMITATION OF THE NUMBER OF NEGROES ON
GRAND JURIES IN DALLAS COUNTY.  THE ONLY EVIDENCE RELIED UPON TO
ESTABLISH SUCH LIMITATION IS WITH REGARD TO THE COMPOSITION OF THE
TWENTY-ONE GRAND JURIES, INCLUDING THE JURY RETURNING THE INDICTMENT OF
PETITIONER, WHICH WERE IMPANELED DURING THIS PERIOD.  BUT EACH OF THESE
GRAND JURIES OF TWELVE PERSONS WAS SELECTED BY A JUDGE FROM A LIST OF
SIXTEEN PERSONS PREPARED BY COMMISSIONERS.  THE RECORD SHOWS ONLY THOSE
NEGROES WHO HAVE ACTUALLY SERVED ON THE GRAND JURIES AND NOT THOSE WHO
WERE ON THE COMMISSIONERS' LISTS.  WE CANNOT CONCLUDE THAT THERE HAS
BEEN UNIFORMITY AS TO RACE IN THE SELECTIONS OF COMMISSIONERS WHEN WE
DO NOT KNOW HOW MANY NEGROES HAVE BEEN ON THEIR LISTS.  EVEN IF
JUDICIAL NOTICE IS TAKEN OF THE RACIAL COMPOSITION OF THREE LISTS
DURING THE PERIOD IN QUESTION, WHICH ARE REPORTED IN AKINS V. TEXAS,
325 U.S. 398, 405(1945) AND IN WEEMS V. STATE, 148 TEX. CR. R. 154,
157, 185 S.W.2D 431, 433(1945), THERE REMAIN SIXTY-EIGHT PERSONS ON THE
LISTS WHOSE RACE IS NOT ASCERTAINABLE FROM THE RECORD OR FROM ANY
CONCESSION OF COUNSEL.  NOR DO I THINK THAT ALTERNATIVELY WE ARE
COMPELLED BY THE STATISTICS RELIED UPON BY PETITIONER TO CONCLUDE THAT
THE JUDGES PURPOSEFULLY DISCRIMINATED DURING THIS PERIOD.  ANY
PRESUMPTION AS TO THE PURPOSE OF THE JUDGES, OR OF THE COMMISSIONERS
WHOM THE JUDGES APPOINTED, INSTRUCTED AND SUPERVISED, MUST BE THAT THEY
INTENDED NO RACIAL LIMITATION.  AND THE TESTIMONY OF THE JUDGE WHO
IMPANELED THE GRAND JURY IN THIS CASE AND A NUMBER OF OTHER GRAND
JURIES DURING THE PERIOD UNDER REVIEW, AS WELL AS THE TESTIMONY OF THE
COMMISSIONERS IN THIS CASE AS TO THE JUDGE'S INSTRUCTIONS TO THEM,
INDICATES THAT HE HAS NOT PURPOSEFULLY LIMITED PARTICIPATION ON ACCOUNT
OF RACE.  IN THE FACE OF THIS PRESUMPTION AND TESTIMONY, I THINK THAT,
EVEN IF THERE WERE MORE THAN ONE NEGRO ON EACH OF THE COMMISSIONERS'
LISTS, WE COULD NOT INFER ANY PURPOSE ON THE PART OF THE JUDGES TO
LIMIT NEGRO PARTICIPATION SOLELY BECAUSE OF RACE.  THE BURDEN OF
SHOWING FACTS WHICH PERMIT AN INFERENCE OF PURPOSEFUL LIMITATION IS ON
THE DEFENDANT.  MARTIN V. TEXAS, 200 U.S. 316(1906).  I DO NOT FIND THE
PRESENT RECORD PERSUASIVE THAT THERE WAS SUCH LIMITATION. 

THE DIFFICULTIES FACING GRAND-JURY COMMISSIONERS ARE WELL ILLUSTRATED
BY THIS CASE.  ON THE ONE HAND THEY ARE TOLD THAT PURPOSEFUL
DISCRIMINATION IS INFERRED FROM THE AVAILABLE STATISTICS DURING THE
PREVIOUS FIVE AND ONE-HALF YEARS, SHOWING THAT NO MORE THAN ONE NEGRO
WAS CHOSEN FOR EACH OF 21 GRAND JURIES; THAT THIS INDICATES THAT THE
COMMISSIONERS MUST HAVE BEEN GUIDED BY THE MISCONCEIVED VIEW THAT THE
PRESENCE OF ONE NEGRO ON THE GRAND JURY SATISFIED CONSTITUTIONAL
REQUIREMENTS.  BUT THEY ARE ALSO TOLD QUITE PROPERLY THAT A TOKEN
REPRESENTATION OF A RACE ON A GRAND JURY IS NOT A CONSTITUTIONAL
REQUISITE; THAT IN FACT IT MAY REACH THE POINT OF ILLEGALITY; THAT
REPRESENTATION ON THE GRAND JURY BY RACE IN PROPORTION TO POPULATION IS
NOT PERMISSIBLE FOR THERE MUST BE "NEITHER INCLUSION NOR EXCLUSION
BECAUSE OF RACE."  UNDER THESE CIRCUMSTANCES ONE MAY, LIKE JOB'S
COMFORTER, ONLY ADD TO THE COMMISSIONERS' DISTRESS BY WRITING FURTHER. 
BUT IT DOES APPEAR TO ME FROM THIS RECORD THAT THEIR RESPONSIBILITY IS
BROADER THAN THEY UNDERSTOOD IT TO BE.  THEY FRANKLY STATED THAT IN
MAKING UP THE LIST THEY DISCUSSED ONLY THOSE PERSONS WHOM THEY KNEW
PERSONALLY, AND THAT THEY CONSIDERED ONLY ONE NEGRO, A SCHOOL PRINCIPAL
WHO COULD NOT SERVE.  THE RECORD INDICATES CLEARLY THAT THERE WERE
NEGROES QUALIFIED AND AVAILABLE WHOM THE COMMISSIONERS DID NOT KNOW BUT
WHOM UPON INQUIRY THEY SHOULD HAVE CONSIDERED.  THEIR RESPONSIBILITY
WAS TO LEARN WHETHER THERE WERE PERSONS AMONG THE NEGROES THEY DID NOT
KNOW WHO WERE QUALIFIED AND AVAILABLE FOR SERVICE.  HILL V. TEXAS, 316
U.S. 400(1942); SMITH V. TEXAS, 311 U.S. 128(1940).  THE ELIMINATION OF
THIS LARGE GROUP IN THE COMMUNITY FROM THE COMMISSIONERS' CONSIDERATION
DEPRIVED PETITIONER OF CONSTITUTIONAL SAFEGUARDS AS DEFINED IN THE
DECISIONS OF THIS COURT.  FOR THIS REASON I CONCUR IN THE OPINION OF
MR. JUSTICE REED AND IN THE JUDGMENT OF REVERSAL. 

MR. JUSTICE JACKSON, DISSENTING. 

THE CASE BEFORE US IS THAT OF A NEGRO CONVICTED OF MURDER BY CRUSHING
THE SKULL OF A SLEEPING WATCHMAN WITH A PIECE OF IRON PIPE TO CARRY OUT
A BURGLARY.  NO QUESTION IS HERE AS TO HIS GUILT.  WE ARE ASKED TO
ORDER HIS RELEASE FROM THIS CONVICTION UPON THE SOLE GROUND THAT
NEGROES WERE PURPOSEFULLY DISCRIMINATED AGAINST IN SELECTION OF THE
GRAND JURY THAT INDICTED HIM.  IT IS ADMITTED THAT NEGROES WERE NOT
EXCLUDED FROM THE TRIAL JURY BY WHICH HE WAS CONVICTED. 

IN SETTING ASIDE THIS CONVICTION, THE COURT IS MOVED BY A DESIRE TO
ENFORCE EQUALITY IN THAT REALM WHERE, ABOVE ALL, IT MUST BE ENFORCED -
IN OUR JUDICIAL SYSTEM.  BUT THIS CONVICTION IS REVERSED FOR ERRORS
THAT HAVE NOTHING TO DO WITH THE DEFENDANT'S GUILT OR INNOCENCE, OR
WITH A FAIR TRIAL OF THAT ISSUE.  THIS CONFLICTS WITH ANOTHER PRINCIPLE
IMPORTANT TO OUR LAW, VIZ., THAT NO CONVICTION SHOULD BE SET ASIDE FOR
ERRORS NOT AFFECTING SUBSTANTIAL RIGHTS OF THE ACCUSED. 

THIS COURT HAS NEVER WEIGHED THESE COMPETING CONSIDERATIONS IN CASES
OF THIS KIND.  THE USE OF OBJECTIONS TO THE COMPOSITION OF JURIES IS
LATELY SO MUCH RESORTED TO FOR PURPOSES OF DELAY, HOWEVER, AND THE
SPECTACLE OF A DEFENDANT PUTTING THE GRAND JURY ON TRIAL BEFORE HE CAN
BE TRIED FOR A CRIME IS SO DISCREDITING TO THE ADMINISTRATION OF
JUSTICE, THAT IT IS TIME TO EXAMINE THE BASIS FOR THE PRACTICE. 

                                  I. 

IT IS THE COMMAND OF THE FOURTEENTH AMENDMENT THAT NEGRO CITIZENS BE
AFFORDED THE SAME OPPORTUNITIES TO SERVE UPON GRAND JURIES AS ARE
AFFORDED WHITE CITIZENS.  MOREOVER, CONGRESS, WHICH IS AUTHORIZED TO
PROVIDE FOR ITS ENFORCEMENT, HAS ENACTED THAT "NO CITIZEN POSSESSING
ALL OTHER QUALIFICATIONS WHICH ARE OR MAY BE PRESCRIBED BY LAW SHALL BE
DISQUALIFIED FOR SERVICE AS GRAND OR PETIT JUROR IN ANY COURT OF THE
UNITED STATES, OR OF ANY STATE, ON ACCOUNT OF RACE, COLOR, OR PREVIOUS
CONDITION OF SERVITUDE; ...  "  ACT OF MARCH 1, 1875, C. 114, SEC. 4,
18 STAT. 336, 62 STAT. 696, 18 U.S.C. SEC. 243. 

THE SUBSTANTIVE RIGHT IS THUS CLEAR.  BUT WHOSE RIGHT IS IT?  THE
RIGHT IS CONFERRED UPON THE QUALIFIED COLORED CITIZEN TO SERVE ON EQUAL
TERMS WITH THE QUALIFIED WHITE CITIZEN.  THIS DEFENDANT IS NOT HERE
ASKING THAT RIGHT FOR HIMSELF.  HE CLAIMS THAT FAILURE TO GIVE OTHER
NEGROES AN EQUAL RIGHT TO SIT ON THE GRAND JURY GIVES HIM QUITE A
DIFFERENT RIGHT - A RIGHT NOT TO BE INDICTED BY IT.  TWO REASONS OCCUR
TO ME WHICH COULD JUSTIFY THIS COURT IN TRANSLATING THE WRONG TO THOSE
NEGROES EXCLUDED FROM A GRAND JURY INTO A RIGHT OF THIS DEFENDANT TO
VOID AN INDICTMENT.  ONE IS THAT THE ABSENCE OF NEGROES ON THE GRAND
JURY PREJUDICED THIS DEFENDANT.  THE OTHER IS THAT IT IS THE ONLY
PRACTICABLE METHOD FOR ENFORCING THE RIGHT OF QUALIFIED NEGROES TO
SERVE ON GRAND JURIES.  IT IS DOUBTFUL IF EITHER OF THESE CAN BE
SUSTAINED. 

                            II. 

CONGRESS, WHICH HAS IMPLEMENTED THE RIGHT OF NEGROES TO SERVE ON
JURIES, HAD ALSO COMMANDED ALL UNITED STATES COURTS TO GIVE JUDGMENT
"WITHOUT REGARD TO TECHNICAL ERRORS, DEFECTS, OR EXCEPTIONS WHICH DO
NOT AFFECT THE SUBSTANTIAL RIGHTS OF THE PARTIES."  FN1  AND THIS SAME
CONGRESSIONAL POLICY WAS MANIFESTED IN A PROVISION DIRECTING THAT NO
INDICTMENT FOUND AND PRESENTED BY A GRAND JURY IN UNITED STATES COURTS
"SHALL BE DEEMED INSUFFICIENT, NOR SHALL THE TRIAL, JUDGMENT, OR OTHER
PROCEEDING THEREON BE AFFECTED BY REASON OF ANY DEFECT OR IMPERFECTION
IN MATTER OF FORM ONLY, WHICH SHALL NOT TEND TO THE PREJUDICE OF THE
DEFENDANT"; FN2  AND ALSO IN THE PROVISION THAT A MOTION TO QUASH AN
INDICTMENT SHALL FAIL WHERE THE GROUND IS THAT ONE OR MORE MEMBERS OF
THE GRAND JURY WERE UNQUALIFIED, BUT WHERE IT APPEARS THAT TWELVE OR
MORE QUALIFIED JURORS CONCURRED IN THE FINDING OF THE INDICTMENT.  FN3 

THIS COURT NEVER HAS EXPLAINED HOW DISCRIMINATION IN THE SELECTION OF
A GRAND JURY, ILLEGAL THOUGH IT BE, HAS PREJUDICED A DEFENDANT WHOM A
TRIAL JURY, CHOSEN WITH NO DISCRIMINATION, HAS CONVICTED.  THE REASON
THIS QUESTION WAS NOT CONSIDERED PERHAPS IS THAT, IN THE EARLIER CASES
WHERE CONVICTIONS WERE SET ASIDE, THE DISCRIMINATION CONDEMNED WAS
PRESENT IN SELECTING BOTH GRAND AND TRIAL JURY AND, WHILE THE ARGUMENT
WAS CHIEFLY BASED ON THE LATTER, THE LANGUAGE OF THE OPINIONS MADE NO
DIFFERENTIATION, NOR FOR THEIR PURPOSE DID THEY NEED TO.  CF. STRAUDER
V. WEST VIRGINIA, 100 U.S. 303; NEAL V. DELAWARE, 103 U.S. 370; SEE
ALSO BUSH V. KENTUCKY, 107 U.S. 110; GIBSON V. MISSISSIPPI, 162 U.S.
565; HALE V. KENTUCKY, 303 U.S. 613.  ONLY WITHIN THE LAST FEW YEARS
HAVE CONVICTIONS BEEN SET ASIDE FOR DISCRIMINATION IN COMPOSITION OF
THE GRAND JURY ALONE, AND IN THESE THE QUESTION NOW UNDER CONSIDERATION
WAS NOT DISCUSSED.  PIERRE V. LOUISIANA, 306 U.S. 354; SMITH V. TEXAS,
311 U.S. 128; HILL V. TEXAS, 316 U.S. 400. 

IT IS OBVIOUS THAT DISCRIMINATORY EXCLUSION OF NEGROES FROM A TRIAL
JURY DOES, OR AT LEAST MAY, PREJUDICE A NEGRO'S RIGHT TO A FAIR TRIAL,
AND THAT A CONVICTION SO OBTAINED SHOULD NOT STAND.  THE TRIAL JURY
HEARS THE EVIDENCE OF BOTH SIDES AND CHOOSES WHAT IT WILL BELIEVE.  IN
SO DECIDING, IT IS INFLUENCED BY IMPONDERABLES - UNCONSCIOUS AND
CONSCIOUS PREJUDICES AND PREFERENCES - AND A THOUSAND THINGS WE CANNOT
DETECT OR ISOLATE IN ITS VERDICT AND WHOSE INFLUENCE WE CANNOT WEIGH. 
A SINGLE JUROR'S DISSENT IS GENERALLY ENOUGH TO PREVENT CONVICTION.  A
TRIAL JURY ON WHICH ONE OF THE DEFENDANT'S RACE HAS NO CHANCE TO SIT
MAY NOT HAVE THE SUBSTANCE, AND CANNOT HAVE THE APPEARANCE, OF
IMPARTIALITY, ESPECIALLY WHEN THE ACCUSED IS A NEGRO AND THE ALLEGED
VICTIM IS NOT. 

THE GRAND JURY IS A VERY DIFFERENT INSTITUTION.  THE STATES ARE NOT
REQUIRED TO USE IT AT ALL.  HURTADO V. CALIFORNIA, 110 U.S. 516.  ITS
POWER IS ONLY TO ACCUSE, NOT TO CONVICT.  ITS INDICTMENT DOES NOT EVEN
CREATE A PRESUMPTION OF GUILT; ALL THAT IT CHARGES MUST LATER BE PROVED
BEFORE THE TRIAL JURY, AND THEN BEYOND A REASONABLE DOUBT.  THE GRAND
JURY NEED NOT BE UNANIMOUS.  IT DOES NOT HEAR BOTH SIDES BUT ONLY THE
PROSECUTION'S EVIDENCE, AND DOES NOT FACE THE PROBLEM OF A CHOICE
BETWEEN TWO ADVERSARIES.  ITS DUTY IS TO INDICT IF THE PROSECUTION'S
EVIDENCE, UNEXPLAINED, UNCONTRADICTED AND UNSUPPLEMENTED, WOULD WARRANT
A CONVICTION.  IF SO, ITS INDICTMENT MERELY PUTS THE ACCUSED TO TRIAL. 
THE DIFFERENCE BETWEEN THE FUNCTION OF THE TRIAL JURY AND THE FUNCTION
OF THE GRAND JURY IS ALL THE DIFFERENCE BETWEEN DECIDING A CASE AND
MERELY DECIDING THAT A CASE SHOULD BE TRIED. 

IT HARDLY LIES IN THE MOUTH OF A DEFENDANT WHOM A FAIRLY CHOSEN TRIAL
JURY HAS FOUND GUILTY BEYOND REASONABLE DOUBT, TO SAY THAT HIS
INDICTMENT IS ATTRIBUTABLE TO PREJUDICE.  IN THIS CASE A TRIAL JUDGE
HEARD THE PROSECUTION'S EVIDENCE, RULED IT SUFFICIENT TO WARRANT A
CONVICTION, APPELLATE COURTS HAVE HELD THE SAME, AND NO FURTHER
QUESTION ABOUT IT IS BEFORE US.  MOREOVER, A JURY ADMITTEDLY CHOSEN
WITHOUT RACIAL DISCRIMINATION HAS HEARD THE PROSECUTION'S AND
DEFENDANT'S EVIDENCE AND HAS HELD THAT GUILT BEYOND A REASONABLE DOUBT
HAS BEEN PROVED.  THAT FINDING, TOO, HAS BEEN AFFIRMED ON APPEAL AND IS
NOT HERE.  UNDER SUCH CIRCUMSTANCES, IT IS FRIVOLOUS TO CONTEND THAT
ANY GRAND JURY, HOWEVER CONSTITUTED, COULD HAVE DONE ITS DUTY IN ANY
WAY OTHER THAN TO INDICT. 

                                III. 

CONGRESS HAS PROVIDED MEANS OTHER THAN RELEASE OF CONVICTED
DEFENDANTS TO ENFORCE THIS RIGHT OF THE NEGRO COMMUNITY TO PARTICIPATE
IN GRAND JURY SERVICE; AND THEY ARE, IF USED, DIRECT AND EFFECTIVE
REMEDIES TO ACCOMPLISH THIS PURPOSE. 

"(WHOEVER), BEING AN OFFICER OR OTHER PERSON CHARGED WITH ANY DUTY IN
THE SELECTION OR SUMMONING OF JURORS, EXCLUDES OR FAILS TO SUMMON ANY
CITIZEN" BECAUSE OF HIS COLOR OR RACE HAS COMMITTED A FEDERAL CRIME AND
IS SUBJECT TO A FINE OF NOT MORE THAN $5,000.  62 STAT. 696, 18 U.S.C.
SEC. 243. 

CONGRESS HAS ALSO PROVIDED THAT "EVERY PERSON WHO, UNDER COLOR OF ANY
STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR
TERRITORY, SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE
UNITED STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE
DEPRIVATION OF ANY RIGHTS, RPIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED IN AN
ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR
REDRESS."  17 STAT. 13, 8 U.S.C. SEC. 43. 

THESE CRIMINAL AND CIVIL REMEDIES FOR DISCRIMINATORY EXCLUSIONS FROM
THE JURY HAVE BEEN ALMOST TOTALLY NEGLECTED BOTH BY THE FEDERAL
GOVERNMENT AND BY NEGRO CITIZENS ENTITLED TO SIT AS JURORS.  BACK IN
1878 A STATE JUDGE WAS INDICTED IN FEDERAL COURT FOR VIOLATION OF THE
ACT AND THIS COURT SUSTAINED IT.  EX PARTE VIRGINIA, 100 U.S. 339. 
THAT CASE HAS BEEN ALLOWED TO STAND AS SOLITARY AND NEGLECTED AUTHORITY
FOR DIRECT ENFORCEMENT OF THE NEGRO'S RIGHT TO SIT ON JURIES. 

QUALIFIED NEGROES EXCLUDED BY DISCRIMINATION HAVE AVAILABLE, IN
ADDITION, REMEDIES IN COURTS OF EQUITY.  I SUPPOSE THERE IS NO DOUBT,
AND IF THERE IS THIS COURT CAN DISPEL IT, THAT A CITIZEN OR A CLASS OF
CITIZENS UNLAWFULLY EXCLUDED FROM JURY SERVICE COULD MAINTAIN IN A
FEDERAL COURT AN INDIVIDUAL OR A CLASS ACTION FOR AN INJUNCTION OR
MANDAMUS AGAINST THE STATE OFFICERS RESPONSIBLE.  CF. HAGUE V.
COMMITTEE FOR INDUSTRIAL ORGANIZATION, 307 U.S. 496; DOUGLAS V.
JEANNETTE, 319 U.S. 157; MORRIS V. WILLIAMS, 149 F.2D 703; MYERSON V.
SAMUEL, 74 F.SUPP.  315; ROLES V. SCHOOL BOARD, 61 F.SUPP.  395.  IF
THE ORDER WERE EVADED OR DISOBEYED, IMPRISONMENT FOR CONTEMPT COULD
FOLLOW.                                       IV. 

IT IS IMPLICIT IN THE COURT'S DECISION THAT THE FEDERAL PENAL
STATUTE, 18 U.S.C. SEC. 243, SUPRA, HAS BEEN VIOLATED.  SO IN EFFECT IT
HOLDS THAT THE CRIME OF DISCRIMINATION OFFSETS THE CRIME OF MURDER AND
THAT THE STATE MUST START OVER AGAIN, IF DEATH OF WITNESSES, LOSS OF
EVIDENCE OR OTHER CONDITIONS WROUGHT BY TIME DO NOT PREVENT. 

I DO NOT SEE HOW THIS COURT CAN ESCAPE THE CONCLUSION THAT ANY
DISCRIMINATION IN SELECTION OF THE GRAND JURY IN THIS CASE, HOWEVER
GREAT THE WRONG TOWARD QUALIFIED NEGROES OF THE COMMUNITY, WAS HARMLESS
TO THIS DEFENDANT.  TO CONCLUDE OTHERWISE IS TO ASSUME THAT NEGROES
QUALIFIED TO SIT ON A GRAND JURY WOULD REFUSE EVEN TO PUT TO TRIAL A
MAN WHOM A LAWFULLY CHOSEN TRIAL JURY FOUND GUILTY BEYOND A REASONABLE
DOUBT. 

THE NEGRO'S RIGHT TO BE SELECTED FOR GRAND JURY SERVICE IS
UNQUESTIONABLE AND SHOULD BE DIRECTLY AND UNCOMPROMISINGLY ENFORCED. 
BUT I DOUBT IF ANY GOOD PURPOSE WILL BE SERVED IN THE LONG RUN BY
IDENTIFYING THE RIGHT OF THE MOST WORTHY NEGROES TO SERVE ON GRAND
JURIES WITH THE EFFORTS OF THE LEAST WORTHY TO DEFER OR ESCAPE
PUNISHMENT FOR CRIME.  I CANNOT BELIEVE THAT THOSE QUALIFIED FOR GRAND
JURY SERVICE WOULD FAIL TO RETURN A TRUE BILL AGAINST A MURDERER
BECAUSE HE IS A NEGRO.  BUT UNLESS THEY WOULD, THIS DEFENDANT HAS NOT
BEEN HARMED. 

I WOULD TREAT THIS AS A CASE WHERE THE IRREGULARITY IS NOT SHOWN TO
HAVE HARMED THIS DEFENDANT, AND AFFIRM THE CONVICTION.  BUT IN THIS AND
SIMILAR CASES, I WOULD SEND A COPY OF THE RECORD TO THE DEPARTMENT OF
JUSTICE FOR INVESTIGATION AS TO WHETHER THERE HAVE BEEN VIOLATIONS OF
THE STATUTE AND, IF SO, FOR PROSECUTION. 

FN1  THE QUOTED LANGUAGE APPEARED IN 40 STAT. 1181, 28 U.S.C. (1940
ED.)  SEC.  391.  THIS PROVISION WAS REPEALED IN THE REVISION OF THE
JUDICIAL CODE IN 1948, ACT OF JUNE 25, 1948, C. 646, SEC. 39, 62 STAT.
992, 998, APPARENTLY BECAUSE IT HAD BEEN EMBODIED IN RULE 52(A),
FEDERAL RULES OF CRIMINAL PROCEDURE, SEE NOTE OF THE ADVISORY COMMITTEE
FOLLOWING RULE 52(A); BUT WAS PARTIALLY REENACTED BY ACT OF MAY 24,
1949, C. 139, SEC. 110, 63 STAT. 105, AND NOW APPEARS AS SEC. 2111, 28
U.S.C. (SUPP. III, 1950). 

FN2  17 STAT. 198, 18 U.S.C. (1940 ED.)  SEC.  556, REPEALED IN THE
1948 REVISION OF THE CRIMINAL CODE, ACT OF JUNE 25, 1948, C. 645, SEC.
21, 62 STAT. 862, 866, APPARENTLY FOR THE REASON THAT IT HAD BEEN
INCORPORATED IN RULES 6 AND 52, FEDERAL RULES OF CRIMINAL PROCEDURE. 
SEE NOTES OF ADVISORY COMMITTEE FOLLOWING RULES 6 AND 52. 

FN3  48 STAT. 649, 18 U.S.C. (1940 ED.)  SEC.  554A, REPEALED BY ACT
OF JUNE 25, 1948, C. 645, SEC. 21, 62 STAT. 862, 866, APPARENTLY
BECAUSE OF ITS INCORPORATION INTO RULE 6(B)(2), FEDERAL RULES OF
CRIMINAL PROCEDURE.  SEE NOTE OF ADVISORY COMMITTEE FOLLOWING RULE
6(B)(2). 
..END :


















MULLANE V. CENTRAL HANOVER TR. CO., 339 U.S. 306 


NO. 378.  ARGUED FEBRUARY 8, 1950.  - DECIDED APRIL 24, 1950.  - 299
N.Y. 697, 87 N.E.2D 73, REVERSED. 


A TRUST COMPANY IN NEW YORK WHICH HAD EXCLUSIVE MANAGEMENT AND CONTROL
OF A COMMON TRUST FUND ESTABLISHED BY IT UNDER SEC. 100-C OF THE NEW
YORK BANKING LAW PETITIONED UNDER THAT SECTION FOR A JUDICIAL
SETTLEMENT OF ACCOUNTS WHICH WOULD BE BINDING AND CONCLUSIVE AS TO ANY
MATTER SET FORTH THEREIN UPON EVERYONE HAVING ANY INTEREST IN THE
COMMON FUND OR IN ANY PARTICIPATING TRUST.  IN THIS COMMON FUND THE
TRUST COMPANY HAD INVESTED ASSETS OF NUMEROUS SMALL TRUSTS OF WHICH IT
WAS TRUSTEE AND OF WHICH SOME OF THE BENEFICIARIES WERE RESIDENTS AND
SOME NONRESIDENTS OF THE STATE.  THE ONLY NOTICE OF THIS PETITION GIVEN
BENEFICIARIES WAS BY PUBLICATION IN A LOCAL NEWSPAPER PURSUANT TO SEC.
100-C (12).  HELD: 

1.  WHETHER SUCH A PROCEEDING FOR SETTLEMENT OF ACCOUNTS BE
TECHNICALLY IN PERSONAM, IN REM, OR QUASI IN REM, THE INTEREST OF EACH
STATE IN PROVIDING MEANS TO CLOSE TRUSTS THAT EXIST BY THE GRACE OF ITS
LAWS AND ARE ADMINISTERED UNDER THE SUPERVISION OF ITS COURTS IS SUCH
AS TO ESTABLISH BEYOND DOUBT THE RIGHT OF ITS COURTS TO DETERMINE THE
INTERESTS OF ALL CLAIMANTS, RESIDENT OR NONRESIDENT, PROVIDED ITS
PROCEDURE ACCORDS FULL OPPORTUNITY TO APPEAR AND BE HEARD.  PP. 311
313. 

2.  THE STATUTORY NOTICE BY PUBLICATION IS SUFFICIENT AS TO ANY
BENEFICIARIES WHOSE INTERESTS OR ADDRESSES ARE UNKNOWN TO THE TRUSTEE,
SINCE THERE ARE NO OTHER MEANS OF GIVING THEM NOTICE WHICH ARE BOTH
PRACTICABLE AND MORE EFFECTIVE.  PP. 313-318. 

3.  SUCH NOTICE BY PUBLICATION IS NOT SUFFICIENT UNDER THE FOURTEENTH
AMENDMENT AS A BASIS FOR ADJUDICATION DEPRIVING OF SUBSTANTIAL PROPERTY
RIGHTS KNOWN PERSONS WHOSE WHEREABOUTS ARE ALSO KNOWN, SINCE IT IS NOT
IMPRACTICABLE TO MAKE SERIOUS EFFORTS TO NOTIFY THEM AT LEAST BY
ORDINARY MAIL TO THEIR ADDRESSES ON RECORD WITH THE TRUST COMPANY.  PP.
318-320. 

MULLANE, SPECIAL GUARDIAN, V. CENTRAL HANOVER BANK & TRUST CO.,
TRUSTEE, ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

OVERRULING OBJECTIONS TO THE STATUTORY NOTICE TO BENEFICIARIES BY
PUBLICATION AUTHORIZED BY SEC. 100-C OF THE NEW YORK BANKING LAW, A NEW
YORK SURROGATE'S COURT ENTERED A FINAL DECREE ACCEPTING AN ACCOUNTING
OF THE TRUSTEE OF A COMMON TRUST FUND ESTABLISHED PURSUANT TO THAT
DIVISION OF THE SUPREME COURT OF NEW YORK (SEE 274 APP. DIV. 772, 80
N.Y.S.2D 127) AND THE COURT OF APPEALS OF NEW YORK (299 N.Y. 697, 87
N.E.2D 73).  ON APPEAL TO THIS COURT, REVERSED, P. 320. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY QUESTIONS THE CONSTITUTIONAL SUFFICIENCY OF NOTICE
TO BENEFICIARIES ON JUDICIAL SETTLEMENT OF ACCOUNTS BY THE TRUSTEE OF A
COMMON TRUST FUND ESTABLISHED UNDER THE NEW YORK BANKING LAW.  THE NEW
YORK COURT OF APPEALS CONSIDERED AND OVERRULED OBJECTIONS THAT THE
STATUTORY NOTICE CONTRAVENES REQUIREMENTS OF THE FOURTEENTH AMENDMENT
AND THAT BY ALLOWANCE OF THE ACCOUNT BENEFICIARIES WERE DEPRIVED OF
PROPERTY WITHOUT DUE PROCESS OF LAW.  299 N.Y. 697, 87 N.E.2D 73.  THE
CASE IS HERE ON APPEAL UNDER 28 U.S.C. SEC. 1257. 

COMMON TRUST FUND LEGISLATION IS ADDRESSED TO A PROBLEM APPROPRIATE
FOR STATE ACTION.  MOUNTING OVERHEADS HAVE MADE ADMINISTRATION OF SMALL
TRUSTS UNDESIRABLE TO CORPORATE TRUSTEES.  IN ORDER THAT DONORS AND
TESTATORS OF MODERATELY SIZED TRUSTS MAY NOT BE DENIED THE SERVICE OF
CORPORATE FIDUCIARIES, THE DISTRICT OF COLUMBIA AND SOME THIRTY STATES
OTHER THAN NEW YORK HAVE PERMITTED POOLING SMALL TRUST ESTATES INTO ONE
FUND FOR INVESTMENT ADMINISTRATION* .  THE INCOME, CAPITAL GAINS,
LOSSES AND EXPENSES OF THE COLLECTIVE TRUST ARE SHARED BY THE
CONSTITUENT TRUSTS IN PROPORTION TO THEIR CONTRIBUTION.  BY THIS PLAN,
DIVERSIFICATION OF RISK AND ECONOMY OF MANAGEMENT CAN BE EXTENDED TO
THOSE WHOSE CAPITAL STANDING ALONE WOULD NOT OBTAIN SUCH ADVANTAGE. 

*ALA. CODE ANN., 1940, CUM. SUPP. 1947, TIT. 58, SECS. 88 TO 103, AS
AMENDED, LAWS 1949, ACT 262; ARIZ. CODE ANN., 1939, CUM. SUPP. 1949,
SECS. 51-1101 TO 51-1104; ARK. STAT. ANN. 1947, SECS. 58-110 TO 58-112;
CAL. BANK.  CODE ANN., DEERING, 1949, SEC. 1564; COLO. STAT. ANN.,
1935, CUM. SUPP. 1947, C. 18, SECS. 173 TO 178; CONN. GEN. STAT. 1949
REV., SEC. 5805; DEL. REV. CODE, 1935, SEC. 4401, AS AMENDED, LAWS,
1943, C. 171, LAWS 1947, C. 268; (D.C.)  63 STAT. 938; FLA. STAT.,
1941, SECS. 655.29 TO 655.34; GA. CODE ANN., 1937, CUM. SUPP. 1947,
SECS. 109-601 TO 109-622; IDAHO CODE ANN., 1949, CUM. SUPP. 1949, SECS.
68-701 TO 68-703; ILL. REV. STAT., 1949, C. 16 1/2, SECS. 57 TO 63;
IND. STAT. ANN., BURNS, 1950, SECS. 18-2009 TO 18-2014; KY. REV. STAT.,
1948, SEC. 287.230; LA. GEN. STAT. ANN., 1939, SEC. 9850.64; MD. ANN.
CODE GEN. LAWS, 1939, CUM. SUPP. 1947, ART. 11, SEC. 62A; MASS. ANN.
LAWS, 1933, CUM. SUPP. 1949, C. 203A; MICH. STAT. ANN., 1943, SECS.
23.1141 TO 23.1153; MINN. STAT., 1945, SEC. 48.84, AS AMENDED, LAWS
1947, C. 234; N.J. STAT. ANN., 1939, CUM. SUPP. 1949, SECS. 17:9A-36 TO
17:9A-46; N.C. GEN. STAT., 1943, SECS. 36-47 TO 36-52; OHIO GEN. CODE
ANN. (PAGE, 1946) SECS. 715 TO 720, 722; OKLA. STAT., 1941, CUM. SUPP.
1949, TIT. 60, SEC. 162; PA. STAT. ANN., 1939, CUM. SUPP. 1949, TIT. 7,
SECS. 819-1109 TO 819-1109D; SO. DAK.  LAWS 1941, C. 20; TEX. REV. CIV.
STAT. ANN., 1939, CUM. SUPP. 1949, ART. 7425B-48; VT. STAT., 1947 REV.,
SEC. 8873; VA. CODE ANN., 1950, SECS. 6-569 TO 6-576; WASH. REV. STAT.
ANN., SUPP. 1943, SECS. 3388 TO 3388-6; W. VA. CODE ANN., 1949, SEC.
4219(1) ET SEQ.; WIS. STAT., 1947, SEC. 223.055. 

STATUTORY AUTHORIZATION FOR THE ESTABLISHMENT OF SUCH COMMON TRUST
FUNDS IS PROVIDED IN THE NEW YORK BANKING LAW, SEC. 100-C (C. 687, L.
1937, AS AMENDED BY C. 602, L. 1943 AND C. 158, L. 1944).  UNDER THIS
ACT A TRUST COMPANY MAY, WITH APPROVAL OF THE STATE BANKING BOARD,
ESTABLISH A COMMON FUND AND, WITHIN PRESCRIBED LIMITS, INVEST THEREIN
THE ASSETS OF AN UNLIMITED NUMBER OF ESTATES, TRUSTS OR OTHER FUNDS OF
WHICH IT IS TRUSTEE.  EACH PARTICIPATING TRUST SHARES RATABLY IN THE
COMMON FUND, BUT EXCLUSIVE MANAGEMENT AND CONTROL IS IN THE TRUST
COMPANY AS TRUSTEE, AND NEITHER A FIDUCIARY NOR ANY BENEFICIARY OF A
PARTICIPATING TRUST IS DEEMED TO HAVE OWNERSHIP IN ANY PARTICULAR ASSET
OR INVESTMENT OF THIS COMMON FUND.  THE TRUST COMPANY MUST KEEP FUND
ASSETS SEPARATE FROM ITS OWN, AND IN ITS FIDUCIARY CAPACITY MAY NOT
DEAL WITH ITSELF OR ANY AFFILIATE.  PROVISIONS ARE MADE FOR ACCOUNTINGS
TWELVE TO FIFTEEN MONTHS AFTER THE ESTABLISHMENT OF A FUND AND
TRIENNIALLY THEREAFTER.  THE DECREE IN EACH SUCH JUDICIAL SETTLEMENT OF
ACCOUNTS IS MADE BINDING AND CONCLUSIVE AS TO ANY MATTER SET FORTH IN
THE ACCOUNT UPON EVERYONE HAVING ANY INTEREST IN THE COMMON FUND OR IN
ANY PARTICIPATING ESTATE, TRUST OR FUND. 

IN JANUARY, 1946, CENTRAL HANOVER BANK AND TRUST COMPANY ESTABLISHED
A COMMON TRUST FUND IN ACCORDANCE WITH THESE PROVISIONS, AND IN MARCH,
1947, IT PETITIONED THE SURROGATE'S COURT FOR SETTLEMENT OF ITS FIRST
ACCOUNT AS COMMON TRUSTEE.  DURING THE ACCOUNTING PERIOD A TOTAL OF 113
TRUSTS, APPROXIMATELY HALF INTER VIVOS AND HALF TESTAMENTARY,
PARTICIPATED IN THE COMMON TRUST FUND, THE GROSS CAPITAL OF WHICH WAS
NEARLY THREE MILLION DOLLARS.  THE RECORD DOES NOT SHOW THE NUMBER OR
RESIDENCE OF THE BENEFICIARIES, BUT THEY WERE MANY AND IT IS CLEAR THAT
SOME OF THEM WERE NOT RESIDENTS OF THE STATE OF NEW YORK. 

THE ONLY NOTICE GIVEN BENEFICIARIES OF THIS SPECIFIC APPLICATION WAS
BY PUBLICATION IN A LOCAL NEWSPAPER IN STRICT COMPLIANCE WITH THE
MINIMUM REQUIREMENTS OF N.Y. BANKING LAW SEC. 100-C (12): "AFTER FILING
SUCH PETITION (FOR JUDICIAL SETTLEMENT OF ITS ACCOUNT) THE PETITIONER
SHALL CAUSE TO BE ISSUED BY THE COURT IN WHICH THE PETITION IS FILED
AND SHALL PUBLISH NOT LESS THAN ONCE IN EACH WEEK FOR FOUR SUCCESSIVE
WEEKS IN A NEWSPAPER TO BE DESIGNATED BY THE COURT A NOTICE OR CITATION
ADDRESSED GENERALLY WITHOUT NAMING THEM TO ALL PARTIES INTERESTED IN
SUCH COMMON TRUST FUND AND IN SUCH ESTATES, TRUSTS OR FUNDS MENTIONED
IN THE PETITION, ALL OF WHICH MAY BE DESCRIBED IN THE NOTICE OR
CITATION ONLY IN THE MANNER SET FORTH IN SAID PETITION AND WITHOUT
SETTING FORTH THE RESIDENCE OF ANY SUCH DECEDENT OR DONOR OF ANY SUCH
ESTATE, TRUST OR FUND."  THUS THE ONLY NOTICE REQUIRED, AND THE ONLY
ONE GIVEN, WAS BY NEWSPAPER PUBLICATION SETTING FORTH MERELY THE NAME
AND ADDRESS OF THE TRUST COMPANY, THE NAME AND THE DATE OF
ESTABLISHMENT OF THE COMMON TRUST FUND, AND A LIST OF ALL PARTICIPATING
ESTATES, TRUSTS OR FUNDS. 

AT THE TIME THE FIRST INVESTMENT IN THE COMMON FUND WAS MADE ON
BEHALF OF EACH PARTICIPATING ESTATE, HOWEVER, THE TRUST COMPANY,
PURSUANT TO THE REQUIREMENTS OF SEC. 100-C (9), HAD NOTIFIED BY MAIL
EACH PERSON OF FULL AGE AND SOUND MIND WHOSE NAME AND ADDRESS WERE THEN
KNOWN TO IT AND WHO WAS "ENTITLED TO SHARE IN THE INCOME THEREFROM  ...
(OR)  ...  WHO WOULD BE ENTITLED TO SHARE IN THE PRINCIPAL IF THE
EVENT UPON WHICH SUCH ESTATE, TRUST OR FUND WILL BECOME DISTRIBUTABLE
SHOULD HAVE OCCURRED AT THE TIME OF SENDING SUCH NOTICE."  INCLUDED IN
THE NOTICE WAS A COPY OF THOSE PROVISIONS OF THE ACT RELATING TO THE
SENDING OF THE NOTICE ITSELF AND TO THE JUDICIAL SETTLEMENT OF COMMON
TRUST FUND ACCOUNTS. 

UPON THE FILING OF THE PETITION FOR THE SETTLEMENT OF ACCOUNTS,
APPELLANT WAS, BY ORDER OF THE COURT PURSUANT TO SEC. 100-C (12),
APPOINTED SPECIAL GUARDIAN AND ATTORNEY FOR ALL PERSONS KNOWN OR
UNKNOWN NOT OTHERWISE APPEARING WHO HAD OR MIGHT THEREAFTER HAVE ANY
INTEREST IN THE INCOME OF THE COMMON TRUST FUND; AND APPELLEE VAUGHAN
WAS APPOINTED TO REPRESENT THOSE SIMILARLY INTERESTED IN THE
PRINCIPAL.  THERE WERE NO OTHER APPEARANCES ON BEHALF OF ANY ONE
INTERESTED IN EITHER INTEREST OR PRINCIPAL. 

APPELLANT APPEARED SPECIALLY, OBJECTING THAT NOTICE AND THE STATUTORY
PROVISIONS FOR NOTICE TO BENEFICIARIES WERE INADEQUATE TO AFFORD DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT, AND THEREFORE THAT THE COURT
WAS WITHOUT JURISDICTION TO RENDER A FINAL AND BINDING DECREE. 
APPELLANT'S OBJECTIONS WERE ENTERTAINED AND OVERRULED, THE SURROGATE
HOLDING THAT THE NOTICE REQUIRED AND GIVEN WAS SUFFICIENT.  75 N.Y.S.2D
397.  A FINAL DECREE ACCEPTING THE ACCOUNTS HAS BEEN ENTERED, AFFIRMED
BY THE APPELLATE DIVISION OF THE SUPREME COURT, 275 APP. DIV. 769, 88
N.Y.S.2D 907, AND BY THE COURT OF APPEALS OF THE STATE OF NEW YORK. 
299 N.Y. 697, 87 N.E.2D 73. 

THE EFFECT OF THIS DECREE, AS HELD BELOW, IS TO SETTLE "ALL QUESTIONS
RESPECTING THE MANAGEMENT OF THE COMMON FUND."  WE UNDERSTAND THAT
EVERY RIGHT WHICH BENEFICIARIES WOULD OTHERWISE HAVE AGAINST THE TRUST
COMPANY, EITHER AS TRUSTEE OF THE COMMON FUND OR AS TRUSTEE OF ANY
INDIVIDUAL TRUST, FOR IMPROPER MANAGEMENT OF THE COMMON TRUST FUND
DURING THE PERIOD COVERED BY THE ACCOUNTING IS SEALED AND WHOLLY
TERMINATED BY THE DECREE.  SEE MATTER OF HOAGLUND, 194 MISC. 803, 811
812, 74 N.Y.S.2D 156, 164, AFF'D 272 APP. DIV. 1040, 74 N.Y.S.2D 911,
AFF'D 297 N.Y. 920, 79 N.E.2D 746; MATTER OF BANK OF NEW YORK, 189
MISC. 459, 470, 67 N.Y.S.2D 444, 453; MATTER OF SECURITY TRUST CO. OF
ROCHESTER, ID. 748, 760, 70 N.Y.S.2D 260, 271; MATTER OF CONTINENTAL
BANK & TRUST CO., ID. 795, 797, 67 N.Y.S.2D 806, 807-808. 

WE ARE MET AT THE OUTSET WITH A CHALLENGE TO THE POWER OF THE STATE -
THE RIGHT OF ITS COURTS TO ADJUDICATE AT ALL AS AGAINST THOSE
BENEFICIARIES WHO RESIDE WITHOUT THE STATE OF NEW YORK.  IT IS
CONTENDED THAT THE PROCEEDING IS ONE IN PERSONAM IN THAT THE DECREE
AFFECTS NEITHER TITLE TO NOR POSSESSION OF ANY RES, BUT ADJUDGES ONLY
PERSONAL RIGHTS OF THE BENEFICIARIES TO SURCHARGE THEIR TRUSTEE FOR
NEGLIGENCE OR BREACH OF TRUST.  ACCORDINGLY, IT IS SAID, UNDER THE
STRICT DOCTRINE OF PENNOYER V. NEFF, 95 U.S. 714, THE SURROGATE IS
WITHOUT JURISDICTION AS TO NONRESIDENTS UPON WHOM PERSONAL SERVICE OF
PROCESS WAS NOT MADE. 

DISTINCTIONS BETWEEN ACTIONS IN REM AND THOSE IN PERSONAM ARE ANCIENT
AND ORIGINALLY EXPRESSED IN PROCEDURAL TERMS WHAT SEEMS REALLY TO HAVE
BEEN A DISTINCTION IN THE SUBSTANTIVE LAW OF PROPERTY UNDER A SYSTEM
QUITE UNLIKE OUR OWN.  BUCKLAND AND MCNAIR, ROMAN LAW AND COMMON LAW,
66; BURDICK, PRINCIPLES OF ROMAN LAW AND THEIR RELATION TO MODERN LAW,
298.  THE LEGAL RECOGNITION AND RISE IN ECONOMIC IMPORTANCE OF
INCORPOREAL OR INTANGIBLE FORMS OF PROPERTY HAVE UPSET THE ANCIENT
SIMPLICITY OF PROPERTY LAW AND THE CLARITY OF ITS DISTINCTIONS, WHILE
NEW FORMS OF PROCEEDINGS HAVE CONFUSED THE OLD PROCEDURAL
CLASSIFICATION.  AMERICAN COURTS HAVE SOMETIMES CLASSED CERTAIN ACTIONS
AS IN REM BECAUSE PERSONAL SERVICE OF PROCESS WAS NOT REQUIRED, AND AT
OTHER TIMES HAVE HELD PERSONAL SERVICE OF PROCESS NOT REQUIRED BECAUSE
THE ACTION WAS IN REM.  SEE CASES COLLECTED IN FREEMAN ON JUDGMENTS,
SECS. 1517 ET SEQ. (5TH ED.). 

JUDICIAL PROCEEDINGS TO SETTLE FIDUCIARY ACCOUNTS HAVE BEEN SOMETIMES
TERMED IN REM, OR MORE INDEFINITELY QUASI IN REM, OR MORE VAGUELY
STILL, "IN THE NATURE OF A PROCEEDING IN REM."  IT IS NOT READILY
APPARENT HOW THE COURTS OF NEW YORK DID OR WOULD CLASSIFY THE PRESENT
PROCEEDING, WHICH HAS SOME CHARACTERISTICS AND IS WANTING IN SOME
FEATURES OF PROCEEDINGS BOTH IN REM AND IN PERSONAM.  BUT IN ANY EVENT
WE THINK THAT THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION DO NOT DEPEND UPON A CLASSIFICATION FOR WHICH THE
STANDARDS ARE SO ELUSIVE AND CONFUSED GENERALLY AND WHICH, BEING
PRIMARILY FOR STATE COURTS TO DEFINE, MAY AND DO VARY FROM STATE TO
STATE.  WITHOUT DISPARAGING THE USEFULNESS OF DISTINCTIONS BETWEEN
ACTIONS IN REM AND THOSE IN PERSONAM IN MANY BRANCHES OF LAW, OR ON
OTHER ISSUES, OR THE REASONING WHICH UNDERLIES THEM, WE DO NOT REST THE
POWER OF THE STATE TO RESORT TO CONSTRUCTIVE SERVICE IN THIS PROCEEDING
UPON HOW ITS COURTS OR THIS COURT MAY REGARD THIS HISTORIC ANTITHESIS. 
IT IS SUFFICIENT TO OBSERVE THAT, WHATEVER THE TECHNICAL DEFINITION OF
ITS CHOSEN PROCEDURE, THE INTEREST OF EACH STATE IN PROVIDING MEANS TO
CLOSE TRUSTS THAT EXIST BY THE GRACE OF ITS LAWS AND ARE ADMINISTERED
UNDER THE SUPERVISION OF ITS COURTS IS SO INSISTENT AND ROOTED IN
CUSTOM AS TO ESTABLISH BEYOND DOUBT THE RIGHT OF ITS COURTS TO
DETERMINE THE INTERESTS OF ALL CLAIMANTS, RESIDENT OR NONRESIDENT,
PROVIDED ITS PROCEDURE ACCORDS FULL OPPORTUNITY TO APPEAR AND BE
HEARD. 

QUITE DIFFERENT FROM THE QUESTION OF A STATE'S POWER TO DISCHARGE
TRUSTEES IS THAT OF THE OPPORTUNITY IT MUST GIVE BENEFICIARIES TO
CONTEST.  MANY CONTROVERSIES HAVE RAGED ABOUT THE CRYPTIC AND ABSTRACT
WORDS OF THE DUE PROCESS CLAUSE BUT THERE CAN BE NO DOUBT THAT AT A
MINIMUM THEY REQUIRE THAT DEPRIVATION OF LIFE, LIBERTY OR PROPERTY BY
ADJUDICATION BE PRECEDED BY NOTICE AND OPPORTUNITY FOR HEARING
APPROPRIATE TO THE NATURE OF THE CASE. 

IN TWO WAYS THIS PROCEEDING DOES OR MAY DEPRIVE BENEFICIARIES OF
PROPERTY.  IT MAY CUT OFF THEIR RIGHTS TO HAVE THE TRUSTEE ANSWER FOR
NEGLIGENT OR ILLEGAL IMPAIRMENTS OF THEIR INTERESTS.  ALSO, THEIR
INTERESTS ARE PRESUMABLY SUBJECT TO DIMINUTION IN THE PROCEEDING BY
ALLOWANCE OF FEES AND EXPENSES TO ONE WHO, IN THEIR NAMES BUT WITHOUT
THEIR KNOWLEDGE, MAY CONDUCT A FRUITLESS OR UNCOMPENSATORY CONTEST. 
CERTAINLY THE PROCEEDING IS ONE IN WHICH THEY MAY BE DEPRIVED OF
PROPERTY RIGHTS AND HENCE NOTICE AND HEARING MUST MEASURE UP TO THE
STANDARDS OF DUE PROCESS.    PERSONAL SERVICE OF WRITTEN NOTICE WITHIN
THE JURISDICTION IS THE CLASSIC FORM OF NOTICE ALWAYS ADEQUATE IN ANY
TYPE OF PROCEEDING.  BUT THE VITAL INTEREST OF THE STATE IN BRINGING
ANY ISSUES AS TO ITS FIDUCIARIES TO A FINAL SETTLEMENT CAN BE SERVED
ONLY IF INTERESTS OR CLAIMS OF INDIVIDUALS WHO ARE OUTSIDE OF THE STATE
CAN SOMEHOW BE DETERMINED.  A CONSTRUCTION OF THE DUE PROCESS CLAUSE
WHICH WOULD PLACE IMPOSSIBLE OR IMPRACTICAL OBSTACLES IN THE WAY COULD
NOT BE JUSTIFIED.    AGAINST THIS INTEREST OF THE STATE WE MUST BALANCE
THE INDIVIDUAL INTEREST SOUGHT TO BE PROTECTED BY THE FOURTEENTH
AMENDMENT.  THIS IS DEFINED BY OUR HOLDING THAT "THE FUNDAMENTAL
REQUISITE OF DUE PROCESS OF LAW IS THE OPPORTUNITY TO BE HEARD." 
GRANNIS V. ORDEAN, 234 U.S. 385, 394.  THIS RIGHT TO BE HEARD HAS
LITTLE REALITY OR WORTH UNLESS ONE IS INFORMED THAT THE MATTER IS
PENDING AND CAN CHOOSE FOR HIMSELF WHETHER TO APPEAR OR DEFAULT,
ACQUIESCE OR CONTEST. 

THE COURT HAS NOT COMMITTED ITSELF TO ANY FORMULA ACHIEVING A BALANCE
BETWEEN THESE INTERESTS IN A PARTICULAR PROCEEDING OR DETERMINING WHEN
CONSTRUCTIVE NOTICE MAY BE UTILIZED OR WHAT TEST IT MUST MEET. 
PERSONAL SERVICE HAS NOT IN ALL CIRCUMSTANCES BEEN REGARDED AS
INDISPENSABLE TO THE PROCESS DUE TO RESIDENTS, AND IT HAS MORE OFTEN
BEEN HELD UNNECESSARY AS TO NONRESIDENTS.  WE DISTURB NONE OF THE
ESTABLISHED RULES ON THESE SUBJECTS.  NO DECISION CONSTITUTES A
CONTROLLING OR EVEN A VERY ILLUMINATING PRECEDENT FOR THE CASE BEFORE
US.  BUT A FEW GENERAL PRINCIPLES STAND OUT IN THE BOOKS. 

AN ELEMENTARY AND FUNDAMENTAL REQUIREMENT OF DUE PROCESS IN ANY
PROCEEDING WHICH IS TO BE ACCORDED FINALITY IS NOTICE REASONABLY
CALCULATED, UNDER ALL THE CIRCUMSTANCES, TO APPRISE INTERESTED PARTIES
OF THE PENDENCY OF THE ACTION AND AFFORD THEM AN OPPORTUNITY TO PRESENT
THEIR OBJECTIONS.  MILLIKEN V. MEYER, 311 U.S. 457; GRANNIS V. ORDEAN,
234 U.S. 385; PRIEST V. LAS VEGAS, 232 U.S. 604; ROLLER V. HOLLY, 176
U.S. 398.  THE NOTICE MUST BE OF SUCH NATURE AS REASONABLY TO CONVEY
THE REQUIRED INFORMATION, GRANNIS V. ORDEAN, SUPRA, AND IT MUST AFFORD
A REASONABLE TIME FOR THOSE INTERESTED TO MAKE THEIR APPEARANCE, ROLLER
V. HOLLY, SUPRA, AND CF. GOODRICH V. FERRIS, 214 U.S. 71.  BUT IF WITH
DUE REGARD FOR THE PRACTICALITIES AND PECULIARITIES OF THE CASE THESE
CONDITIONS ARE REASONABLY MET, THE CONSTITUTIONAL REQUIREMENTS ARE
SATISFIED.  "THE CRITERION IS NOT THE POSSIBILITY OF CONCEIVABLE INJURY
BUT THE JUST AND REASONABLE CHARACTER OF THE REQUIREMENTS, HAVING
REFERENCE TO THE SUBJECT WITH WHICH THE STATUTE DEALS."  AMERICAN LAND
CO. V. ZEISS, 219 U.S. 47, 67; AND SEE BLINN V. NELSON, 222 U.S. 1, 7. 

BUT WHEN NOTICE IS A PERSON'S DUE, PROCESS WHICH IS A MERE GESTURE IS
NOT DUE PROCESS.  THE MEANS EMPLOYED MUST BE SUCH AS ONE DESIROUS OF
ACTUALLY INFORMING THE ABSENTEE MIGHT REASONABLY ADOPT TO ACCOMPLISH
IT.  THE REASONABLENESS AND HENCE THE CONSTITUTIONAL VALIDITY OF ANY
CHOSEN METHOD MAY BE DEFENDED ON THE GROUND THAT IT IS IN ITSELF
REASONABLY CERTAIN TO INFORM THOSE AFFECTED, COMPARE HESS V. PAWLOSKI,
274 U.S. 352, WITH WUCHTER V. PIZZUTTI, 276 U.S. 13, OR, WHERE
CONDITIONS DO NOT REASONABLY PERMIT SUCH NOTICE, THAT THE FORM CHOSEN
IS NOT SUBSTANTIALLY LESS LIKELY TO BRING HOME NOTICE THAN OTHER OF THE
FEASIBLE AND CUSTOMARY SUBSTITUTES. 

IT WOULD BE IDLE TO PRETEND THAT PUBLICATION ALONE, AS PRESCRIBED
HERE, IS A RELIABLE MEANS OF ACQUAINTING INTERESTED PARTIES OF THE FACT
THAT THEIR RIGHTS ARE BEFORE THE COURTS.  IT IS NOT AN ACCIDENT THAT
THE GREATER NUMBER OF CASES REACHING THIS COURT ON THE QUESTION OF
ADEQUACY OF NOTICE HAVE BEEN CONCERNED WITH ACTIONS FOUNDED ON PROCESS
CONSTRUCTIVELY SERVED THROUGH LOCAL NEWSPAPERS.  CHANCE ALONE BRINGS TO
THE ATTENTION OF EVEN A LOCAL RESIDENT AN ADVERTISEMENT IN SMALL TYPE
INSERTED IN THE BACK PAGES OF A NEWSPAPER, AND IF HE MAKES HIS HOME
OUTSIDE THE AREA OF THE NEWSPAPER'S NORMAL CIRCULATION THE ODDS THAT
THE INFORMATION WILL NEVER REACH HIM ARE LARGE INDEED.  THE CHANCE OF
ACTUAL NOTICE IS FURTHER REDUCED WHEN, AS HERE, THE NOTICE REQUIRED
DOES NOT EVEN NAME THOSE WHOSE ATTENTION IT IS SUPPOSED TO ATTRACT, AND
DOES NOT INFORM ACQUAINTANCES WHO MIGHT CALL IT TO ATTENTION.  IN
WEIGHING ITS SUFFICIENCY ON THE BASIS OF EQUIVALENCE WITH ACTUAL
NOTICE, WE ARE UNABLE TO REGARD THIS AS MORE THAN A FEINT. 

NOR IS PUBLICATION HERE REINFORCED BY STEPS LIKELY TO ATTRACT THE
PARTIES' ATTENTION TO THE PROCEEDING.  IT IS TRUE THAT PUBLICATION
TRADITIONALLY HAS BEEN ACCEPTABLE AS NOTIFICATION SUPPLEMENTAL TO OTHER
ACTION WHICH IN ITSELF MAY REASONABLY BE EXPECTED TO CONVEY A WARNING. 
THE WAYS OF AN OWNER WITH TANGIBLE PROPERTY ARE SUCH THAT HE USUALLY
ARRANGES MEANS TO LEARN OF ANY DIRECT ATTACK UPON HIS POSSESSORY OR
PROPRIETARY RIGHTS.  HENCE, LIBEL OF A SHIP, ATTACHMENT OF A CHATTEL OR
ENTRY UPON REAL ESTATE IN THE NAME OF LAW MAY REASONABLY BE EXPECTED TO
COME PROMPTLY TO THE OWNER'S ATTENTION.  WHEN THE STATE WITHIN WHICH
THE OWNER HAS LOCATED SUCH PROPERTY SEIZES IT FOR SOME REASON,
PUBLICATION OR POSTING AFFORDS AN ADDITIONAL MEASURE OF NOTIFICATION. 
A STATE MAY INDULGE THE ASSUMPTION THAT ONE WHO HAS LEFT TANGIBLE
PROPERTY IN THE STATE EITHER HAS ABANDONED IT, IN WHICH CASE
PROCEEDINGS AGAINST IT DEPRIVE HIM OF NOTHING, CF. ANDERSON NATIONAL
BANK V. LUCKETT, 321 U.S. 233; SECURITY SAVINGS BANK V. CALIFORNIA, 263
U.S. 282, OR THAT HE HAS LEFT SOME CARETAKER UNDER A DUTY TO LET HIM
KNOW THAT IT IS BEING JEOPARDIZED.  BALLARD V. HUNTER, 204 U.S. 241;
HULING V. KAW VALLEY R. CO., 130 U.S. 559.  AS PHRASED LONG AGO BY
CHIEF JUSTICE MARSHALL IN THE MARY, 9 CRANCH 126, 144, "IT IS THE PART
OF COMMON PRUDENCE FOR ALL THOSE WHO HAVE ANY INTEREST IN (A THING), TO
GUARD THAT INTEREST BY PERSONS WHO ARE IN A SITUATION TO PROTECT IT." 

IN THE CASE BEFORE US THERE IS, OF COURSE, NO ABANDONMENT.  ON THE
OTHER HAND THESE BENEFICIARIES DO HAVE A RESIDENT FIDUCIARY AS
CARETAKER OF THEIR INTEREST IN THIS PROPERTY.  BUT IT IS THEIR
CARETAKER WHO IN THE ACCOUNTING BECOMES THEIR ADVERSARY.  THEIR TRUSTEE
IS RELEASED FROM GIVING NOTICE OF JEOPARDY, AND NO ONE ELSE IS EXPECTED
TO DO SO.  NOT EVEN THE SPECIAL GUARDIAN IS REQUIRED OR APPARENTLY
EXPECTED TO COMMUNICATE WITH HIS WARD AND CLIENT, AND, OF COURSE, IF
SUCH A DUTY WERE MERELY TRANSFERRED FROM THE TRUSTEE TO THE GUARDIAN,
ECONOMY WOULD NOT BE SERVED AND MORE LIKELY THE COST WOULD BE
INCREASED. 

THIS COURT HAS NOT HESITATED TO APPROVE OF RESORT TO PUBLICATION AS A
CUSTOMARY SUBSTITUTE IN ANOTHER CLASS OF CASES WHERE IT IS NOT
REASONABLY POSSIBLE OR PRACTICABLE TO GIVE MORE ADEQUATE WARNING.  THUS
IT HAS BEEN RECOGNIZED THAT, IN THE CASE OF PERSONS MISSING OR UNKNOWN,
EMPLOYMENT OF AN INDIRECT AND EVEN A PROBABLY FUTILE MEANS OF
NOTIFICATION IS ALL THAT THE SITUATION PERMITS AND CREATES NO
CONSTITUTIONAL BAR TO A FINAL DECREE FORECLOSING THEIR RIGHTS.  CUNNIUS
V. READING SCHOOL DISTRICT, 198 U.S. 458; BLINN V. NELSON, 222 U.S. 1;
AND SEE JACOB V. ROBERTS, 223 U.S. 261. 

THOSE BENEFICIARIES REPRESENTED BY APPELLANT WHOSE INTERESTS OR
WHEREABOUTS COULD NOT WITH DUE DILIGENCE BE ASCERTAINED COME CLEARLY
WITHIN THIS CATEGORY.  AS TO THEM THE STATUTORY NOTICE IS SUFFICIENT. 
HOWEVER GREAT THE ODDS THAT PUBLICATION WILL NEVER REACH THE EYES OF
SUCH UNKNOWN PARTIES, IT IS NOT IN THE TYPICAL CASE MUCH MORE LIKELY TO
FAIL THAN ANY OF THE CHOICES OPEN TO LEGISLATORS ENDEAVORING TO
PRESCRIBE THE BEST NOTICE PRACTICABLE. 

NOR DO WE CONSIDER IT UNREASONABLE FOR THE STATE TO DISPENSE WITH
MORE CERTAIN NOTICE TO THOSE BENEFICIARIES WHOSE INTERESTS ARE EITHER
CONJECTURAL OR FUTURE OR, ALTHOUGH THEY COULD BE DISCOVERED UPON
INVESTIGATION, DO NOT IN DUE COURSE OF BUSINESS COME TO KNOWLEDGE OF
THE COMMON TRUSTEE.  WHATEVER SEARCHES MIGHT BE REQUIRED IN ANOTHER
SITUATION UNDER ORDINARY STANDARDS OF DILIGENCE, IN VIEW OF THE
CHARACTER OF THE PROCEEDINGS AND THE NATURE OF THE INTERESTS HERE
INVOLVED WE THINK THEM UNNECESSARY.  WE RECOGNIZE THE PRACTICAL
DIFFICULTIES AND COSTS THAT WOULD BE ATTENDANT ON FREQUENT
INVESTIGATIONS INTO THE STATUS OF GREAT NUMBERS OF BENEFICIARIES, MANY
OF WHOSE INTERESTS IN THE COMMON FUND ARE SO REMOTE AS TO BE EPHEMERAL;
AND WE HAVE NO DOUBT THAT SUCH IMPRACTICABLE AND EXTENDED SEARCHES ARE
NOT REQUIRED IN THE NAME OF DUE PROCESS.  THE EXPENSE OF KEEPING
INFORMED FROM DAY TO DAY OF SUBSTITUTIONS AMONG EVEN CURRENT INCOME
BENEFICIARIES AND PRESUMPTIVE REMAINDERMEN, TO SAY NOTHING OF THE FAR
GREATER NUMBER OF CONTINGENT BENEFICIARIES, WOULD IMPOSE A SEVERE
BURDEN ON THE PLAN, AND WOULD LIKELY DISSIPATE ITS ADVANTAGES.  THESE
ARE PRACTICAL MATTERS IN WHICH WE SHOULD BE RELUCTANT TO DISTURB THE
JUDGMENT OF THE STATE AUTHORITIES. 

ACCORDINGLY WE OVERRULE APPELLANT'S CONSTITUTIONAL OBJECTIONS TO
PUBLISHED NOTICE INSOFAR AS THEY ARE URGED ON BEHALF OF ANY
BENEFICIARIES WHOSE INTERESTS OR ADDRESSES ARE UNKNOWN TO THE TRUSTEE. 

AS TO KNOWN PRESENT BENEFICIARIES OF KNOWN PLACE OF RESIDENCE,
HOWEVER, NOTICE BY PUBLICATION STANDS ON A DIFFERENT FOOTING. 
EXCEPTIONS IN THE NAME OF NECESSITY DO NOT SWEEP AWAY THE RULE THAT
WITHIN THE LIMITS OF PRACTICABILITY NOTICE MUST BE SUCH AS IS
REASONABLY CALCULATED TO REACH INTERESTED PARTIES.  WHERE THE NAMES AND
POST-OFFICE ADDRESSES OF THOSE AFFECTED BY A PROCEEDING ARE AT HAND,
THE REASONS DISAPPEAR FOR RESORT TO MEANS LESS LIKELY THAN THE MAILS TO
APPRISE THEM OF ITS PENDENCY. 

THE TRUSTEE HAS ON ITS BOOKS THE NAMES AND ADDRESSES OF THE INCOME
BENEFICIARIES REPRESENTED BY APPELLANT, AND WE FIND NO TENABLE GROUND
FOR DISPENSING WITH A SERIOUS EFFORT TO INFORM THEM PERSONALLY OF THE
ACCOUNTING, AT LEAST BY ORDINARY MAIL TO THE RECORD ADDRESSES.  CF.
WUCHTER V. PIZZUTTI, SUPRA.  CERTAINLY SENDING THEM A COPY OF THE
STATUTE MONTHS AND PERHAPS YEARS IN ADVANCE DOES NOT ANSWER THIS
PURPOSE.  THE TRUSTEE PERIODICALLY REMITS THEIR INCOME TO THEM, AND WE
THINK THAT THEY MIGHT REASONABLY EXPECT THAT WITH OR APART FROM THEIR
REMITTANCES WORD MIGHT COME TO THEM PERSONALLY THAT STEPS WERE BEING
TAKEN AFFECTING THEIR INTERESTS. 

WE NEED NOT WEIGH CONTENTIONS THAT A REQUIREMENT OF PERSONAL SERVICE
OF CITATION ON EVEN THE LARGE NUMBER OF KNOWN RESIDENT OR NONRESIDENT
BENEFICIARIES WOULD, BY REASONS OF DELAY IF NOT OF EXPENSE, SERIOUSLY
INTERFERE WITH THE PROPER ADMINISTRATION OF THE FUND.  OF COURSE
PERSONAL SERVICE EVEN WITHOUT THE JURISDICTION OF THE ISSUING AUTHORITY
SERVES THE END OF ACTUAL AND PERSONAL NOTICE, WHATEVER POWER OF
COMPULSION IT MIGHT LACK.  HOWEVER, NO SUCH SERVICE IS REQUIRED UNDER
THE CIRCUMSTANCES.  THIS TYPE OF TRUST PRESUPPOSES A LARGE NUMBER OF
SMALL INTERESTS.  THE INDIVIDUAL INTEREST DOES NOT STAND ALONE BUT IS
IDENTICAL WITH THAT OF A CLASS.  THE RIGHTS OF EACH IN THE INTEGRITY OF
THE FUND AND THE FIDELITY OF THE TRUSTEE ARE SHARED BY MANY OTHER
BENEFICIARIES.  THEREFORE NOTICE REASONABLY CERTAIN TO REACH MOST OF
THOSE INTERESTED IN OBJECTING IS LIKELY TO SAFEGUARD THE INTERESTS OF
ALL, SINCE ANY OBJECTION SUSTAINED WOULD INURE TO THE BENEFIT OF ALL. 
WE THINK THAT UNDER SUCH CIRCUMSTANCES REASONABLE RISKS THAT NOTICE
MIGHT NOT ACTUALLY REACH EVERY BENEFICIARY ARE JUSTIFIABLE.  "NOW AND
THEN AN EXTRAORDINARY CASE MAY TURN UP, BUT CONSTITUTIONAL LAW LIKE
OTHER MORTAL CONTRIVANCES HAS TO TAKE SOME CHANCES, AND IN THE GREAT
MAJORITY OF INSTANCES NO DOUBT JUSTICE WILL BE DONE."  BLINN V. NELSON,
SUPRA, 7. 

THE STATUTORY NOTICE TO KNOWN BENEFICIARIES IS INADEQUATE, NOT
BECAUSE IN FACT IT FAILS TO REACH EVERYONE, BUT BECAUSE UNDER THE
CIRCUMSTANCES IT IS NOT REASONABLY CALCULATED TO REACH THOSE WHO COULD
EASILY BE INFORMED BY OTHER MEANS AT HAND.  HOWEVER IT MAY HAVE BEEN IN
FORMER TIMES, THE MAILS TODAY ARE RECOGNIZED AS AN EFFICIENT AND
INEXPENSIVE MEANS OF COMMUNICATION.  MOREOVER, THE FACT THAT THE TRUST
COMPANY HAS BEEN ABLE TO GIVE MAILED NOTICE TO KNOWN BENEFICIARIES AT
THE TIME THE COMMON TRUST FUND WAS ESTABLISHED IS PERSUASIVE THAT
POSTAL  NOTIFICATION AT THE TIME OF ACCOUNTING WOULD NOT SERIOUSLY
BURDEN THE PLAN. 

IN SOME SITUATIONS THE LAW REQUIRES GREATER PRECAUTIONS IN ITS
PROCEEDINGS THAN THE BUSINESS WORLD ACCEPTS FOR ITS OWN PURPOSES.  IN
FEW, IF ANY, WILL IT BE SATISFIED WITH LESS.  CERTAINLY IT IS
INSTRUCTIVE, IN DETERMINING THE REASONABLENESS OF THE IMPERSONAL
BROADCAST NOTIFICATION HERE USED, TO ASK WHETHER IT WOULD SATISFY A
PRUDENT MAN OF BUSINESS, COUNTING HIS PENNIES BUT FINDING IT IN HIS
INTEREST TO CONVEY INFORMATION TO MANY PERSONS WHOSE NAMES AND
ADDRESSES ARE IN HIS FILES.  WE ARE NOT SATISFIED THAT IT WOULD. 
PUBLICATION MAY THEORETICALLY BE AVAILABLE FOR ALL THE WORLD TO SEE,
BUT IT IS TOO MUCH IN OUR DAY TO SUPPOSE THAT EACH OR ANY INDIVIDUAL
BENEFICIARY DOES OR COULD EXAMINE ALL THAT IS PUBLISHED TO SEE IF
SOMETHING MAY BE TUCKED AWAY IN IT THAT AFFECTS HIS PROPERTY
INTERESTS.  WE HAVE BEFORE INDICATED IN REFERENCE TO NOTICE BY
PUBLICATION THAT, "GREAT CAUTION SHOULD BE USED NOT TO LET FICTION DENY
THE FAIR PLAY THAT CAN BE SECURED ONLY BY A PRETTY CLOSE ADHESION TO
FACT."  MCDONALD V. MABEE, 243 U.S. 90, 91. 

WE HOLD THAT THE NOTICE OF JUDICIAL SETTLEMENT OF ACCOUNTS REQUIRED
BY THE NEW YORK BANKING LAW SEC. 100-C (12) IS INCOMPATIBLE WITH THE
REQUIREMENTS OF THE FOURTEENTH AMENDMENT AS A BASIS FOR ADJUDICATION
DEPRIVING KNOWN PERSONS WHOSE WHEREABOUTS ARE ALSO KNOWN OF SUBSTANTIAL
PROPERTY RIGHTS.  ACCORDINGLY THE JUDGMENT IS REVERSED AND THE CAUSE
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.    MR. JUSTICE BURTON, DISSENTING. 

THESE COMMON TRUSTS ARE AVAILABLE ONLY WHEN THE INSTRUMENTS CREATING
THE PARTICIPATING TRUSTS PERMIT PARTICIPATION IN THE COMMON FUND. 
WHETHER OR NOT FURTHER NOTICE TO BENEFICIARIES SHOULD SUPPLEMENT THE
NOTICE AND REPRESENTATION HERE PROVIDED IS PROPERLY WITHIN THE
DISCRETION OF THE STATE.  THE FEDERAL CONSTITUTION DOES NOT REQUIRE IT
HERE. 
..END :
























SHIPMAN V. DUPRE, 339 U.S. 321 


NO. 689.  DECIDED APRIL 24, 1950.  - 88 F.SUPP.  482, JUDGMENT VACATED. 


IN THIS CASE, A THREE-JUDGE FEDERAL DISTRICT COURT ERRED IN RULING ON
THE MERITS OF A SUIT TO RESTRAIN ENFORCEMENT OF A STATE STATUTE ON THE
GROUND OF ITS INVALIDITY UNDER THE FEDERAL CONSTITUTION WHEN IT DID NOT
APPEAR THAT THE STATUTE HAD BEEN CONSTRUED BY THE STATE COURT; BUT THE
FEDERAL COURT SHOULD RETAIN JURISDICTION PENDING A REASONABLE TIME TO
AFFORD AN OPPORTUNITY FOR COMPLAINANTS TO OBTAIN SUCH A CONSTRUCTION. 
PP. 321-322. 

SHIPMAN ET AL., TRADING AS SHIPMAN BROTHERS, ET AL. V. DUPRE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF SOUTH CAROLINA. 

APPELLANTS' APPLICATION FOR A DECLARATORY JUDGMENT AND INJUNCTION, ON
THE GROUND OF THE ALLEGED INVALIDITY UNDER THE FEDERAL CONSTITUTION OF
CERTAIN SECTIONS OF SOUTH CAROLINA STATUTES REGULATING THE FISHERIES
AND SHRIMPING INDUSTRY, WAS DISMISSED ON THE MERITS BY A THREE-JUDGE
FEDERAL DISTRICT COURT.  88 F.SUPP.  482.  ON APPEAL TO THIS COURT, THE
JUDGMENT IS VACATED AND THE CAUSE IS REMANDED, P. 322. 

PER CURIAM. 

APPELLANTS SOUGHT A DECLARATORY JUDGMENT THAT CERTAIN SECTIONS OF THE
SOUTH CAROLINA STATUTE REGULATING THE FISHERIES AND SHRIMPING INDUSTRY
WERE UNCONSTITUTIONAL, AND INTERLOCUTORY AND PERMANENT INJUNCTIONS
RESTRAINING THE STATE OFFICIALS FROM CARRYING OUT THOSE PROVISIONS. 
THE STATUTORY THREE-JUDGE DISTRICT COURT ASSUMED JURISDICTION, DECIDED
THE ISSUES ON THE MERITS, AND DISMISSED THE COMPLAINT.  88 F.SUPP. 
482.  FROM THE PAPERS SUBMITTED ON APPEAL, IT DOES NOT APPEAR THAT THE
STATUTORY SECTIONS IN QUESTION HAVE AS YET BEEN CONSTRUED BY THE STATE
COURTS.  WE ARE THEREFORE OF OPINION THAT THE DISTRICT COURT ERRED IN
DISPOSING OF THE COMPLAINT ON THE MERITS.  SEE AMERICAN FEDERATION OF
LABOR V. WATSON, 327 U.S. 582, 595-599. 

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE CAUSE IS
REMANDED TO THAT COURT WITH DIRECTIONS TO RETAIN JURISDICTION OF THE
COMPLAINT FOR A REASONABLE TIME, TO AFFORD APPELLANTS AN OPPORTUNITY TO
OBTAIN, BY APPROPRIATE PROCEEDINGS, A CONSTRUCTION BY THE STATE COURT
OF THE STATUTORY PROVISIONS INVOLVED. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :






UNITED STATES V. WESTINGHOUSE CO., 339 U.S. 261 


NO. 26.  ARGUED OCTOBER 13-14, 1949.  - DECIDED APRIL 17, 1950.  - 170
F.2D 752, REVERSED. 


THE UNITED STATES CONDEMNED CERTAIN PREMISES FOR USE BY THE ARMY FOR A
TERM INITIALLY ENDING JUNE 30, 1943, WITH AN OPTION TO RENEW FOR
ADDITIONAL PERIODS DURING THE EXISTING NATIONAL EMERGENCY.  RESPONDENT
WAS LESSEE OF A PORTION OF THE PREMISES FOR A TERM EXPIRING OCTOBER 31,
1944, AND INCURRED EXPENSES FOR THE REMOVAL OF ITS PERSONAL PROPERTY. 
SUBSEQUENTLY, THE GOVERNMENT EXTENDED ITS OCCUPANCY FOR TWO ADDITIONAL
YEARLY PERIODS ENDING JUNE 30, 1945.  HELD: ALTHOUGH THE OCCUPANCY
TAKEN BY THE UNITED STATES WAS INITIALLY FOR A PERIOD LESS THAN THE
REMAINDER OF RESPONDENT'S TERM, RESPONDENT'S REMOVAL EXPENSES ARE NOT
RELEVANT IN DETERMINING JUST COMPENSATION, SINCE RESPONDENT'S TERM HAD
BEEN EXHAUSTED BY THE GOVERNMENT'S OCCUPANCY.  PP. 262-268. 

(A)  WHEN THERE IS AN ENTIRE TAKING OF A CONDEMNEE'S PROPERTY, BE IT
A LEASEHOLD OR A FEE, THE EXPENSES OF REMOVAL OR RELOCATION ARE NOT TO
BE INCLUDED IN VALUING WHAT IS TAKEN.  P. 264. 

(B)  WHERE THE GOVERNMENT INITIALLY TAKES AN OCCUPANCY FOR LESS THAN
THE OUTSTANDING TERM OF A LEASE BUT LATER EXERCISES A RENEWAL OPTION SO
AS TO EXHAUST THE ENTIRE LEASE, THIS SHOULD BE TREATED AS A TAKING OF
THE WHOLE LEASE.  PP. 265-268. 

(C)  WHERE THE GOVERNMENT INITIALLY TAKES AN OCCUPANCY FOR LESS THAN
THE OUTSTANDING TERM OF A LEASE WITH AN OPTION FOR EXTENSION, AN AWARD
BASED ON REMOVAL COSTS SHOULD BE DELAYED UNTIL IT IS KNOWN WHETHER THE
GOVERNMENT'S OCCUPANCY HAS EXHAUSTED THE TENANT'S LEASEHOLD.  P. 268. 

UNITED STATES V. WESTINGHOUSE ELECTRIC & MANUFACTURING CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

THE DISTRICT COURT AWARDED RESPONDENT COMPENSATION FOR THE EXPENSE OF
REMOVING PERSONAL PROPERTY FROM LEASED PREMISES CONDEMNED BY THE
GOVERNMENT.  71 F.SUPP.  1001.  THE COURT OF APPEALS AFFIRMED.  170
F.2D 752.  THIS COURT GRANTED CERTIORARI.  336 U.S. 950.  REVERSED, P.
268. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON FEBRUARY 18, 1943, THE UNITED STATES FILED A PETITION IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS TO
CONDEMN CERTAIN LAND AND BUILDINGS IN SPRINGFIELD, MASSACHUSETTS, FOR
USE BY THE ARMY FOR A TERM INITIALLY ENDING JUNE 30, 1943, WITH A RIGHT
TO RENEW FOR ADDITIONAL YEARLY PERIODS DURING THE EXISTING NATIONAL
EMERGENCY, AT THE ELECTION OF THE SECRETARY OF WAR.  FN1  ON THE SAME
DAY THE DISTRICT COURT AUTHORIZED THE UNITED STATES TO TAKE IMMEDIATE
POSSESSION.  THE RESPONDENT, WESTINGHOUSE ELECTRIC AND MANUFACTURING
COMPANY, WAS LESSEE OF A PORTION OF THE CONDEMNED PROPERTY, USING IT AS
A WAREHOUSE, UNDER A LEASE DATED JANUARY 19, 1942, FOR A TERM EXPIRING
ON OCTOBER 31, 1944.  RESPONDENT, IN ORDER TO COMPLY WITH THE DISTRICT
COURT'S ORDER OF IMMEDIATE POSSESSION, INCURRED EXPENSES FOR THE
REMOVAL OF ITS PERSONAL PROPERTY.  SUBSEQUENTLY, THE SECRETARY OF WAR
EXERCISED HIS RIGHT OF RENEWAL AND EXTENDED THE GOVERNMENT'S OCCUPANCY
FOR TWO ADDITIONAL YEARLY PERIODS ENDING ON JUNE 30, 1945.  THUS,
ALTHOUGH THE OCCUPANCY TAKEN BY THE UNITED STATES WAS INITIALLY FOR A
PERIOD LESS THAN THE REMAINDER OF RESPONDENT'S TERM, THE RENEWALS
EVENTUALLY EXHAUSTED RESPONDENT'S LEASEHOLD. 

AT THE TIME OF THE INITIAL TAKING AS WELL AS UPON EACH YEARLY
EXTENSION, SUMS WERE DEPOSITED INTO THE DISTRICT COURT AS ESTIMATED
JUST COMPENSATION.  IT WAS STIPULATED THAT THESE SUMS REPRESENTED THE
FAIR MARKET VALUE OF THE BARE, UNHEATED WAREHOUSE SPACE TAKEN, LEAVING
OPEN THE QUESTION WHETHER, AS A MATTER OF LAW, THE REMOVAL COSTS
INCURRED BY THE RESPONDENT WERE TO BE TAKEN INTO ACCOUNT IN COMPUTING
JUST COMPENSATION FOR WHAT WAS CONDEMNED.  IT WAS FURTHER STIPULATED
THAT THE REMOVAL EXPENSES WERE BOTH REASONABLE AND NECESSARY, AND THAT,
TAKING SUCH REMOVAL COSTS INTO ACCOUNT, THE MARKET RENTAL VALUE OF THE
PREMISES WAS $25,600 GREATER ON A SUBLEASE GIVEN BY RESPONDENT TO A
TEMPORARY OCCUPIER THAN AS BARE UNHEATED WAREHOUSE SPACE. 

THE DISTRICT COURT RULED THAT REMOVAL EXPENSES SHOULD BE INCLUDED IN
THE MEASURE OF JUST COMPENSATION, AND AWARDED TO RESPONDENT THE
STIPULATED AMOUNT.  71 F.SUPP.  1001.  THE COURT OF APPEALS AFFIRMED,
CHIEF JUDGE MAGRUDER DISSENTING.  170 F.2D 752.  THE DISAGREEMENT WAS
DUE NOT TO DIFFERENCES OF INDEPENDENT VIEWS BUT TO CONFLICTING MEANINGS
DRAWN FROM THE DECISIONS OF THIS COURT IN UNITED STATES V. GENERAL
MOTORS CORP., 323 U.S. 373, AND UNITED STATES V. PETTY MOTOR CO., 327
U.S. 372.  THE NEED FOR CLARIFICATION LED US TO BRING THE CASE HERE. 
336 U.S. 950. 

THE GENERAL MOTORS AND PETTY MOTOR CASES CONCERNED THEMSELVES WITH
THE SITUATION IN WHICH THE GOVERNMENT DOES NOT TAKE THE WHOLE OF A
MAN'S INTEREST BUT DESIRES MERELY TEMPORARY OCCUPANCY OF PREMISES UNDER
LEASE.  GENERAL MOTORS HELD THAT WHEN SUCH OCCUPANCY IS FOR A PERIOD
LESS THAN AN OUTSTANDING TERM, REMOVAL COSTS MAY BE CONSIDERED IN THE
AWARD OF "JUST COMPENSATION" TO THE TEMPORARILY EJECTED TENANT - NOT AS
AN INDEPENDENT ITEM OF DAMAGE, BUT AS BEARING ON THE RENTAL VALUE SUCH
PREMISES WOULD HAVE ON A VOLUNTARY SUBLEASE BY A LONG-TERM TENANT TO A
TEMPORARY OCCUPIER.  FN2 

IN THIS HOLDING OF WHAT IS JUST, WITHIN THE REQUIREMENTS OF THE FIFTH
AMENDMENT, THE COURT WAS SCRUPULOUSLY CAREFUL NOT TO DEPART FROM THE
SETTLED RULE AGAINST ALLOWANCE FOR "CONSEQUENTIAL LOSSES" IN FEDERAL
CONDEMNATION PROCEEDINGS.  323 U.S. AT 379 ET SEQ. WHEN THERE IS AN
ENTIRE TAKING OF A CONDEMNEE'S PROPERTY, WHETHER THAT PROPERTY
REPRESENTS THE INTEREST IN A LEASEHOLD OR A FEE, THE EXPENSES OF
REMOVAL OR OF RELOCATION ARE NOT TO BE INCLUDED IN VALUING WHAT IS
TAKEN.  THAT RULE WAS FOUND INAPPLICABLE TO THE NEW SITUATION PRESENTED
BY THE GENERAL MOTORS CASE - INAPPLICABLE, THAT IS, WHERE WHAT WAS TO
BE VALUED WAS "A RIGHT OF TEMPORARY OCCUPANCY OF A BUILDING EQUIPPED
FOR THE CONDEMNEE'S BUSINESS, FILLED WITH HIS COMMODITIES, AND
PRESUMABLY TO BE REOCCUPIED AND USED, AS BEFORE, TO THE END OF THE
LEASE TERM ON THE TERMINATION OF THE GOVERNMENT'S USE."  323 U.S. AT
380. 

PETTY MOTOR MADE CLEAR THAT THE TAKING OF THE WHOLE OF A TENANT'S
LEASE DOES NOT FALL WITHIN THE GENERAL MOTORS DOCTRINE.  THE REASON FOR
THE DISTINCTION BETWEEN THE TWO SITUATIONS WAS MADE EXPLICIT IN PETTY
MOTOR: 

"THERE IS A FUNDAMENTAL DIFFERENCE BETWEEN THE TAKING OF A PART OF A
LEASE AND THE TAKING OF THE WHOLE LEASE.  THAT DIFFERENCE IS THAT THE
LESSEE MUST RETURN TO THE LEASEHOLD AT THE END OF THE GOVERNMENT'S USE
OR AT LEAST THE RESPONSIBILITY FOR THE PERIOD OF THE LEASE WHICH IS NOT
TAKEN RESTS UPON THE LESSEE.  THIS WAS BROUGHT OUT IN THE GENERAL
MOTORS DECISION.  BECAUSE OF THAT CONTINUING OBLIGATION IN ALL TAKINGS
OF TEMPORARY OCCUPANCY OF LEASEHOLDS, THE VALUE OF THE RIGHTS OF THE
LESSEES WHICH ARE TAKEN MAY BE AFFECTED BY EVIDENCE OF THE COST OF
TEMPORARY REMOVAL."  327 U.S. AT 379-80. 

WHILE IT IS TRUE THAT IN BOTH THE GENERAL MOTORS AND PETTY MOTOR
CASES THE GOVERNMENT HAD RETAINED AN OPTION TO VARY THE DURATION OF ITS
OCCUPANCY - IN THE FORMER CASE IT COULD EXTEND, AND IN THE LATTER IT
COULD SHORTEN - THE LEGAL SIGNIFICANCE OF SUCH AN OPTION WITH RESPECT
TO REMOVAL COSTS WAS NOT SQUARELY IN ISSUE.  IT IS NOW.  WHERE THE
GOVERNMENT INITIALLY TAKES AN OCCUPANCY FOR LESS THAN THE OUTSTANDING
TERM OF A LEASE BUT THEN EXERCISES ITS RENEWAL OPTION SO AS TO EXHAUST
THE ENTIRE LEASE, SHALL THIS BE TREATED MERELY AS A TEMPORARY OCCUPANCY
DURING PART OF AN OUTSTANDING LEASE AND THUS WITHIN THE GENERAL MOTORS
DOCTRINE, OR AS A TAKING OF THE WHOLE LEASE AND HENCE WITHIN PETTY
MOTOR?  FN3 

HERE, AS IN GENERAL MOTORS, THE GOVERNMENT INITIALLY TOOK OVER ONLY
PART OF AN OUTSTANDING LEASE.  BUT HERE THE SECRETARY OF WAR IN FACT
CONTINUED THE ARMY'S OCCUPANCY OF THE PREMISES BEYOND THE EXPIRATION OF
WESTINGHOUSE'S LEASE.  JUDGED BY THE EVENT, THEREFORE, THIS CASE WAS
UNLIKE GENERAL MOTORS IN THAT WHAT THE GOVERNMENT TOOK WAS THE WHOLE OF
THE LEASE.  IT WAS THUS LIKE PETTY MOTOR.  THE FORMAL DIFFERENCE
BETWEEN THIS CASE AND PETTY MOTOR WAS THAT IN THIS CASE THE GOVERNMENT
BEGAN WITH AN OCCUPANCY SHORTER THAN THE OUTSTANDING LEASE WITH A
CONTINGENT RESERVATION FOR ITS EXTENSION, WHILE IN PETTY MOTOR THERE
WAS A CONTINGENT RESERVATION TO SHORTEN AN OCCUPANCY THAT NOMINALLY
EXHAUSTED THE LEASE. 

TO MAKE A DISTINCTION BETWEEN TAKING A PART OF A LEASE WITH NOTICE
THAT THE PERIOD OF OCCUPANCY MAY BE EXTENDED FOR THE REST OF THE
LEASEHOLD, AND FORMALLY TAKING A WHOLE LEASEHOLD WITH THE RIGHT TO
OCCUPY ONLY A PORTION OF IT AND THROW UP THE REST, IS TO MAKE THE
CONSTITUTIONAL REQUIREMENT FOR JUST COMPENSATION TURN ON A WHOLLY
BARREN FORMALITY.  IT IS BARREN BECAUSE A TAKING OF A CONTINGENT
OCCUPANCY BY THE GOVERNMENT COULD BE CAST IN EITHER FORM BY THOSE IN
CHARGE OF ITS CONDEMNATION PROCEEDINGS WITHOUT THE SLIGHTEST DIFFERENCE
TO THE GOVERNMENT'S INTEREST.  THE REASON FOR CONDEMNATION FOR A PERIOD
SHORTER THAN A TENANT'S OUTSTANDING TERM WITH NOTICE THAT EXTENSIONS
MAY ABSORB THE BALANCE OF THE TERM (I.E., THE FORM IN THIS CASE), OR
FOR CONDEMNATION FORMALLY FOR THE WHOLE OF AN UNEXPIRED LEASEHOLD WITH
NOTICE THAT THE GOVERNMENT'S OCCUPANCY MAY BE TERMINATED BEFORE THE
OUTSTANDING TERM HAS EXPIRED (I.E., THE FORM IN PETTY MOTOR), IS
PRECISELY THE SAME.  IT IS A RECOGNITION OF THE CONTINGENCIES WHICH MAY
DETERMINE THE DURATION OF THE EMERGENCY DURING WHICH THE GOVERNMENT
SEEKS TEMPORARY OCCUPANCY OF LEASED PREMISES.  AND SO IT TAKES A
FLEXIBLE TERM, CASTING THE BURDEN OF THE CONTINGENCY UPON THE OUSTED
TENANT. 

UNDER EITHER TYPE OF CONDEMNATION THE UNITED STATES MAY IN FACT MOVE
OUT BEFORE THE OUSTED LEASEHOLDER'S TERM HAS EXPIRED, THUS IMPOSING
UPON HIM THE DUTY TO RETURN TO THE PREMISES OR MAKE SOME OTHER
BURDENSOME ADJUSTMENT.  IN THAT EVENT, HE IS PLACED IN PRECISELY THE
SAME BOAT AS WAS THE GENERAL MOTORS CORPORATION, AND THE COST OF
REMOVAL IS THEREFORE ADMINISSIBLE IN EVIDENCE "AS BEARING ON THE MARKET
RENTAL VALUE OF THE TEMPORARY OCCUPANCY TAKEN."  323 U.S. AT 383. 
CONTRARIWISE, UNDER EITHER TYPE OF CONDEMNATION THE GOVERNMENT MAY
CONTINUE ITS OCCUPANCY THROUGHOUT THE TENANT'S TERM.  IN THAT EVENT,
THE SITUATION IS GOVERNED BY PETTY MOTOR AND REMOVAL COSTS MAY NOT BE
TAKEN INTO ACCOUNT.  THE FINAL SEVERANCE OF A LESSEE'S OCCUPANCY AS
AGAINST A TEMPORARY INTERRUPTION OF AN OUTSTANDING LEASEHOLD, EVEN
THOUGH NOT DEFINITIVELY FIXED AT THE OUTSET, IS A DIFFERENCE IN DEGREE
WIDE ENOUGH TO JUSTIFY A DIFFERENCE IN RESULT. 

THE TEST OF THE OUTCOME - IS THE GOVERNMENT MERELY A TEMPORARY
OCCUPIER OF AN UNEXPIRED LEASEHOLD OR HAS IT ABSORBED THE TERM OF THE
LEASE?   - HAS ACTUALITY BEHIND IT.  UNTIL EVENTS HAVE MADE IT CLEAR,
WE CANNOT KNOW WHETHER THE TENANT WILL HAVE TO MOVE BACK INTO HIS
LEASED PREMISES OR MAKE SOME OTHER ADJUSTMENT, AND THUS WE CANNOT KNOW
WHETHER THE REASON FOR THE GENERAL MOTORS DOCTRINE OPERATES. 

CONDEMNATION FOR INDEFINITE PERIODS OF OCCUPANCY WAS A PRACTICAL
RESPONSE TO THE UNCERTAINTIES OF THE GOVERNMENT'S NEEDS IN WARTIME. 
LAW HAS SUFFICIENT FLEXIBILITY TO ACCOMMODATE ITSELF TO THESE
UNCERTAINTIES BY MAKING WHAT IS A RELATIVELY MINOR ITEM AWAIT THE
EVENT.  TO DO SO DOES NOT KEEP THE LITIGATION OPEN LONGER THAN IT HAS
TO BE KEPT OPEN, BECAUSE THE TOTAL AWARD FOR THE GOVERNMENT'S OCCUPANCY
CANNOT BE DETERMINED UNTIL ITS DURATION IS KNOWN.  THE USUAL RULE FOR
ASCERTAINING VALUE AT THE TIME OF TAKING IS NOT DISRESPECTED IF ONE
ITEM IS MADE A FUNCTION OF THE FUTURE BECAUSE ONLY THEN CAN IT BE KNOWN
WHETHER THAT ITEM FORMS A PART OF WHAT HAS BEEN "TAKEN."  THE
ALTERNATIVE IS TO REQUIRE A FORECAST OF THE POSSIBILITY THAT THE TENANT
WILL HAVE TO MOVE BACK INTO THE PREMISES.  THE FACTORS ON WHICH SUCH A
FORECAST MUST BE BASED ARE TOO CONTINGENT, TOO UNIQUE FOR GUIDANCE BY
EXPERIENCE, TO PERMIT RATIONAL ASSESSMENT.  THIS IS A SITUATION WHERE
THE LAW SHOULD EXPRESS "A JUDGMENT FROM EXPERIENCE AS AGAINST A
JUDGMENT FROM SPECULATION."  TANNER V. LITTLE, 240 U.S. 369, 386.  OR,
AS IT WAS PUT BY MR. JUSTICE CARDOZO FOR THE COURT IN A RELEVANT
SITUATION:  "EXPERIENCE IS THEN AVAILABLE TO CORRECT UNCERTAIN
PROPHECY.  HERE IS A BOOK OF WISDOM THAT COURTS MAY NOT NEGLECT.  WE
FIND NO RULE OF LAW THAT SETS A CLASP UPON ITS PAGES, AND FORBIDS US TO
LOOK WITHIN."  SINCLAIR REFINING CO. V. JENKINS PETROLEUM PROCESS CO.,
289 U.S. 689, 698. 

AN AWARD BASED ON REMOVAL COSTS WILL OF COURSE BE DELAYED UNTIL IT IS
KNOWN WHETHER THE GOVERNMENT'S OCCUPANCY HAS EXHAUSTED THE TENANT'S
LEASEHOLD.  BUT THIS PRESENTS NO REAL ADMINISTRATIVE DIFFICULTIES. 
THAT THE ESSENTIAL FACTS HERE BECAME KNOWN BEFORE THE TIME FOR JUDICIAL
DETERMINATION HARDLY MAKES THIS CASE ATYPICAL.  EVEN IN THE CASES WHERE
THE EVENT IS STILL OPEN, THE COST OF MOVING OUT, INSOFAR AS IT IS TO BE
REFLECTED IN JUST COMPENSATION, MAY BE TREATED AS A SEGREGATED ITEM. 
THUS, ITS AMOUNT MAY BE ASCERTAINED AT AN EARLY STAGE OF THE JUDICIAL
PROCEEDINGS, BUT THE JUDGMENT MADE CONDITIONAL UPON THE OUTCOME OF THE
GOVERNMENT'S OCCUPANCY.  AND RENTAL PAYMENTS DUE FROM THE GOVERNMENT
NEED NOT BE POSTPONED.  SO LONG AS THE DURATION OF THE GOVERNMENT'S
OCCUPANCY IS UNDETERMINED, THE DISTRICT COURT MUST NECESSARILY RETAIN
THE CASE FOR THE PERIODIC DETERMINATION AND PAYMENT OF RENTAL
COMPENSATION.  THIS IS SO IN THE ABSENCE OF ANY PROBLEM ARISING OUT OF
REMOVAL COSTS.  NO UNFAIRNESS OR EMBARRASSMENT TO THE DISPLACED TENANT
IS THUS INVOLVED BY LEAVING LIABILITY BASED ON REMOVAL TO AWAIT THE
EVENT. 

IN THE CASE BEFORE US, IT WAS KNOWN AT THE TIME OF TRIAL IN THE
DISTRICT COURT THAT RESPONDENT'S TERM HAD BEEN EXHAUSTED BY THE
GOVERNMENT'S OCCUPANCY.  ACCORDINGLY, THE JUDGMENT IS REVERSED INSOFAR
AS IT AWARDS $25,600 TO RESPONDENT.  REVERSED. 

FN1  THE PETITION WAS FILED UNDER SEC. 201 OF TITLE II OF THE SECOND
WAR POWERS ACT OF 1942, 56 STAT. 176, 177, 50 U.S.C. APP. SEC. 632. 
THIS SECTION AUTHORIZED CERTAIN OFFICIALS "TO ACQUIRE BY CONDEMNATION,
ANY REAL PROPERTY, TEMPORARY USE THEREOF, OR OTHER INTEREST THEREIN,"
FOR PURPOSES RELATED TO THE WAR.  PLAINLY IT CONFERRED POWER TO CONDEMN
INTERESTS IN REALTY NORMALLY PURCHASED BY PRIVATE PERSONS, INCLUDING,
OF COURSE, OPTIONS TO RENEW. 

FN2  THIS HOLDING IN THE GENERAL MOTORS CASE WAS THE COURT'S
DETERMINATION, WITHOUT ANY CONGRESSIONAL ACTION, OF WHAT CONSTITUTED
"JUST COMPENSATION" UNDER THE FIFTH AMENDMENT. 

FN3  PROBLEMS RELATING TO THE VALUATION OF RENEWAL OPTIONS ARE NOT
BEFORE US ON THIS RECORD.  IT NEED HARDLY BE SAID THAT PROVISION FOR
RENEWAL DOES NOT NECESSITATE THE SAME RENTAL FOR THE RENEWED PERIOD AS
FOR THE INITIAL PERIOD.  WHETHER A RENTAL FOR EACH RENEWED PERIOD WAS
INITIALLY FIXED IN THIS CASE IS NOT DISCLOSED BY THE STIPULATED FACTS. 
MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON, DISSENTING. 

DIFFICULTIES IN RESOLVING THE CONTROVERSY OVER REMOVAL COSTS ARE
CAUSED BY A CONDEMNATION POLICY UNDER WHICH THE GOVERNMENT, IN TAKING
TEMPORARY USE OF PROPERTY, ALSO CONDEMNS AN OPTION TO RENEW OR SHORTEN
THE PERIOD OF USE.  WHILE WE HAVE DECIDED CASES IN WHICH QUESTIONS
CONCERNING OPTIONS WERE RAISED, UNITED STATES V. GENERAL MOTORS CORP.,
323 U.S. 373; UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372, I THINK
THAT THE COURT HAS NOT FULLY FACED UP TO THE IMPLICATIONS OF THE
OPTIONING POLICY.    VALUATION PROBLEMS OF THE PAST HAVE BEEN SIMPLE
CONTRASTED TO THOSE THE NEW POLICY IMPOSES UPON COURTS.  CONDEMNATION
IN THE MAIN WAS OF TITLE TO PHYSICAL PROPERTIES, AND THE PROBLEM OF
JUST COMPENSATION WAS ONE OF ASCERTAINING THE EQUIVALENT IN MONEY AT
THE DATE OF APPROPRIATION - A DATE THAT HAD ALREADY ARRIVED.  THE
COURTS WERE DEALING WITH A SINGLE POINT OF TIME AND WITH FACTS AND
CONDITIONS WHICH WERE AT LEAST IN EXPERIENCE, NOT PROPHECY. 

IN RECENT YEARS, THE GOVERNMENT EMBARKED UPON A NEW TYPE OF
CONDEMNATION.  FN1  IT DOES NOT TAKE TITLE TO THE PROPERTY AND PUT INTO
THE POCKETS OF THE OWNERS THE CURRENT MONEY EQUIVALENT.  INSTEAD, IT
KEEPS THE OWNERS' CAPITAL TIED TO THEIR INVESTMENTS AND PAYS THEM ONLY
AN ESTIMATED VALUE OF ITS FUTURE USE.  THIS REQUIRES COURTS TO PREDICT
VALUES OVER A PERIOD OF TIME. 

VALUING TIME IS THE ESSENCE OF MUCH BUSINESS AND OF MOST
SPECULATION.  ALL OPTIONS, FUTURES, INSURANCE CONTRACTS, LEASES,
INVESTMENTS, DEFERRED DELIVERIES AND COMMITMENTS INVOLVE AN APPRAISAL
OF TIME.  AND THOUGH IT TAKES US INTO THE REALM OF PURE CONJECTURE, IT
MAY BE POSSIBLE, HOWEVER UNSATISFACTORILY, TO FIX VALUES FOR RIGHTS OF
FUTURE OCCUPANCY IF THE PERIOD OF THE OCCUPANCY CAN BE KNOWN. 

THE GOVERNMENT, HOWEVER, HAS ADOPTED THE POLICY OF EXPROPRIATING FOR
A "FLEXIBLE TERM" BY CONDEMNING A RIGHT TO SHORTEN OR TO EXTEND THE USE
FROM TIME TO TIME AS MAY PLEASE IT.  THIS TYPE OF CONDEMNATION DENIES
COURTS EVEN A DEFINED TIME PERIOD TO EVALUATE, AND IT IS SMALL WONDER
THAT THE COURT CONCLUDES THIS LEAVES THE FACTORS TOO CONTINGENT AND
UNIQUE "TO PERMIT RATIONAL ASSESSMENT."  THIS RAISES THE QUESTION
WHETHER CONGRESS EVER AUTHORIZED A TYPE OF EXPROPRIATION THAT CAN NOT
BE RATIONALLY COMPENSATED. 

THE STATUTE UPON WHICH THE TAKING IN THIS CASE RESTS - ONE OF THE
BROADEST OF ITS KIND EVER ENACTED BY CONGRESS - AUTHORIZES VARIOUS
OFFICERS "  ...  TO ACQUIRE BY CONDEMNATION, ANY REAL PROPERTY,
TEMPORARY USE THEREOF, OR OTHER INTEREST THEREIN, TOGETHER WITH ANY
PERSONAL PROPERTY LOCATED THEREON OR USED THEREWITH, THAT SHALL BE
DEEMED NECESSARY, FOR MILITARY, NAVAL, OR OTHER WAR PURPOSES  ...  "
56 STAT. 177.  ITS LEGISLATIVE HISTORY PROVIDES NO EXPLANATION OF THE
LANGUAGE WHICH AUTHORIZES TAKING "ANY REAL PROPERTY, TEMPORARY USE
THEREOF, OR OTHER INTEREST THEREIN,"  FN2  NOR DOES IT OFFER ANY REASON
FOR ITS INCLUSION.  FN3  BUT CONGRESS HAD NO APPARENT EXPECTATION THAT
IT WOULD AUTHORIZE CONDEMNATIONS FOR UNSTATED PERIODS OF TIME.  FN4
THE ANNOUNCED PURPOSE OF THE LEGISLATION WAS TO INCREASE THE NUMBER OF
FEDERAL OFFICIALS AUTHORIZED TO INSTITUTE CONDEMNATION PROCEEDINGS, TO
AUTHORIZE THE POSSESSION AND USE OF PROPERTY PRIOR TO THE COMPLETION OF
CONDEMNATION PROCEEDINGS, AND TO ELIMINATE UNCERTAINTIES REGARDING THE
TAKING IN THE SAME PROCEEDING OF PERSONALTY LOCATED UPON OR USED ALONG
WITH THE REAL PROPERTY BEING CONDEMNED.  FN5  AND THOUGH AUTHORITY FOR
CONDEMNING LESS THAN A FEE HAD EXISTED THERETOFORE, THE WHOLE QUESTION
OF TAKING TEMPORARY USES WAS IN SOME DOUBT.  FN6 

IT IS PLAIN THAT CONGRESS CONTEMPLATED ONLY SUCH TAKINGS AS WERE
NECESSARY.  WE SHOULD GIVE THIS A BROAD CONSTRUCTION; WE MAY EVEN GO SO
FAR AS TO SAY THAT THE NECESSITY FOR A TAKING IS A POLITICAL OR POLICY
QUESTION NOT USUALLY SUBJECT TO JUDICIAL REVIEW.  BUT THE STATUTE
IMPLIES SOME FOUNDATION IN NECESSITY AND NOTHING CAN BE LESS NECESSARY
THAN CONDEMNATION OF AN OPTION TO TAKE PROPERTY OR ITS POSSESSION. 

THE UNITED STATES NEEDS NO SUCH OPTION, FOR ITS INHERENT CONDEMNATION
POWER, BY ITS VERY NATURE, IS A PERPETUAL OPTION TO TAKE, AT ANY TIME,
ANY PROPERTY IT NEEDS.  THE EFFECT OF CONDEMNING AN OPTION TO TAKE AT
SOME FUTURE TIME IS TO INCREASE THE ELEMENT OF UNCERTAINTY AND
SPECULATION IN THE LIQUIDATION OF AN AWARD.  FURTHERMORE, SUCH PURPOSE
IS WHOLLY ONE-SIDED.  IF, LET US SAY, THE PRICE LEVEL SHOULD FALL, THE
GOVERNMENT, EVEN THOUGH IT WANTS THE PROPERTY, IS NOT BOUND TO KEEP IT
ON THE OPTION TERMS.  THAT IS THE ESSENCE OF OPTION.  BUT IT MAY
ABANDON THE OPTION AND TAKE THE PROPERTY UNDER A NEW DECLARATION,
THEREBY GETTING A NEW VALUATION IN THE LIGHT OF THE LOWER PRICE LEVEL. 
IF, HOWEVER, PRICES GO UP, THE GOVERNMENT CAN USE ITS CONDEMNED OPTION
TO KEEP THE OWNER FROM ENJOYING THE RISING VALUE OF HIS PROPERTY AS
OTHER OWNERS MAY DO.  THE TAKING OF A TERM WITH AN OPTION TO LENGTHEN
IS THEREFORE NO MORE THAN A HEDGE AGAINST INFLATION. 

THIS SAME ONE-SIDEDNESS INHERES IN THE POLICY OF TAKING A TERM WITH
AN OPTION TO SHORTEN.  SPECIFIC AUTHORITY EXISTS FOR GOVERNMENT
OFFICIALS TO DISPOSE OF SURPLUS PROPERTIES TAKEN FOR WAR PURPOSES; FN7
INDEED SUCH AUTHORITY IS CONTAINED IN THE VERY STATUTE UNDER
CONSIDERATION.  FN8 VARIOUS OFFICIALS ARE GIVEN POWER TO "LEASE, SELL,
OR OTHERWISE DISPOSE OF" ANY PROPERTIES TAKEN BY CONDEMNATION WHICH
BECOME SURPLUS OR UNNECESSARY.  AND SO, IF THE GOVERNMENT CONDEMNED FOR
A TERM WITH AN OPTION TO SHORTEN, AND THEN DETERMINED THAT THE PROPERTY
SO TAKEN WAS NO LONGER NECESSARY, IT COULD SELL, LEASE, OR OTHERWISE
DISPOSE OF THE REMAINDER OF THE TERM AT THE THEN CURRENT MARKET PRICE. 
THIS IT WOULD CERTAINLY DO IF THE PRICE LEVEL HAD RISEN.  BUT IF PRICES
HAD FALLEN, IT COULD AVOID THE LOSS OF TRADING ON THE OPEN MARKET BY
EXERCISING THE OPTION TO SHORTEN, CUT DOWN THE TERM AND PUT ON THE
OWNER THE BURDEN OF SALVAGING ITS SURPLUS PROPERTY.  THE TAKING OF A
TERM WITH AN OPTION TO SHORTEN IS THEREFORE NO MORE THAN A HEDGE
AGAINST DEFLATION. 

IT SEEMS UNLIKELY THAT CONGRESS INTENDED TO AUTHORIZE SUCH
SPECULATIVE TRANSACTION AS RESULT FROM AN OPTION TO INCREASE OR
DECREASE THE TIME PERIOD.  IF WE CHANGE THE TERMS OF THE TAKING SO THAT
THE TIME IS KNOWN BUT THE SPACE IS INDEFINITE, THE HAZARD TO THE
GOVERNMENT BECOMES QUICKLY APPARENT; IF WE HAD A DECLARATION TAKING
SUCH PART OF A PROPERTY AS FROM TIME TO TIME THE GOVERNMENT WOULD WANT,
WE WOULD HAVE TO COMPENSATE ON THE BASIS THAT THE TAKING WAS OF THE
MAXIMUM WITHIN ITS TERMS.  SUCH INDEFINITE TAKINGS INVITE EXCESSIVE
AWARDS, FOR THE SPECULATION INVOLVED IS INVOLUNTARY WITH THE CLAIMANT
AND ITS OUTCOME CONTROLLED BY, AND HEDGED IN THE INTEREST OF, THE
GOVERNMENT.  CF. UNITED STATES V. CERTAIN PARCELS OF LAND, ETC., 55
F.SUPP.  257, 265. 

THE COURT GIVES UP THE EFFORT TO VALUE WHAT IS TAKEN AND DETERMINES
TO POSTPONE DETERMINATION OF COMPENSATION TO AWAIT THE EVENT.  THIS
EXPEDIENT RECOGNIZES, BUT DOES NOT FAIRLY SOLVE, THE PROBLEM ENGENDERED
BY THIS TYPE OF CONDEMNATION.  IF THERE IS A PRESENT TAKING, THE
PROPERTY OWNER IS ENTITLED TO POCKET HIS COMPENSATION.  IT SEEMS HARDLY
FAIR THAT THE OWNER, DISPOSSESSED FOR A TIME WHICH HE CAN NOT LEARN,
MUST WAIT INDEFINITELY TO BE PAID ANYTHING EXCEPT BARE RENTAL,
REGARDLESS OF THE OTHER EXPENSE HE MAY BE PUT TO.  HOW CAN THE OWNER
KNOW WHETHER TO SELL HIS REMOVABLE PROPERTY, STORE IT, OR PERHAPS TO
LIQUIDATE HIS BUSINESS, OR SEEK A NEW LOCATION, WITHOUT KNOWING THE
LENGTH OF TIME FOR WHICH THE GOVERNMENT IS TAKING HIS PREMISES?  THE
PROPERTY OWNER CANNOT AWAIT THE HAPPENING OF THE EVENT TO MAKE THESE
ESSENTIAL BUSINESS JUDGMENTS.  TO LET THE GOVERNMENT TAKE AN OPTION AND
PAY FOR IT ONLY IF IT DECIDES TO EXERCISE IT, IS TO GIVE THE GOVERNMENT
A "HEADS I WIN; TAILS YOU LOSE" POSITION IN A GAMBLE THE PROPERTY OWNER
HAS NOT WILLINGLY JOINED.  FN9 

I THINK WE SHOULD HOLD THE EFFORT TO CONDEMN OPTIONS TO BE A NULLITY
FOR WANT OF CONGRESSIONAL AUTHORIZATION AND DETERMINE CLAIMS FOR JUST
COMPENSATION ON THE BASIS OF THE FIXED TERM SPECIFIED IN THE
DECLARATION.  IF THE GOVERNMENT, UPON EXPIRATION OF THE FIXED TERM,
DESIRES TO CONTINUE IN POSSESSION, IT MAY FILE A NEW DECLARATION OF
TAKING AND HAVE THE VALUE OF THAT TERM FIXED IN THE LIGHT OF CONDITIONS
THAT THEN PREVAIL.  IF IT ABANDONS THE PROPERTY BEFORE THE FIXED TERM
EXPIRES, IT HAS SURPLUS PROPERTY ON ITS HANDS TO DISPOSE OF AS IT MAY
CHOOSE.  THESE ARE NOT, OF COURSE, VERY SATISFACTORY RESULTS, BUT THEY
WOULD COME NEARER OBEYING THE CONSTITUTIONAL MANDATE OF "JUST
COMPENSATION" THAN THE DELAYED DECISION COURSE ADOPTED BY THE COURT. 

FN1  SEE JUST, CONDEMNATION PROCEDURE DURING WORLD WAR II, 12 GEO.
WASH. L. REV. 286; DOLAN, PRESENT DAY COURT PRACTICE IN CONDEMNATION
SUITS, 31 VA. L. REV. 9. 

FN2  E.G., CF. S. REP. NO. 989, 77TH CONG., 2D SESS. 4(1942).  (THE
BILL COVERS INTERESTS IN REAL PROPERTY, INCLUDING EASEMENTS AND OTHER
RIGHTS APPURTENANT THERETO.)  HEARINGS BEFORE THE HOUSE COMMITTEE ON
THE JUDICIARY ON S. 2208, 77TH CONG., 2D SESS. 15(1942).  (IT WOULD
ENABLE THE ACQUISITION OF LEASEHOLDS OR OF ANY OTHER PROPERTY.) 

FN3 TITLE II OF THE SECOND WAR POWERS ACT, 56 STAT. 177, 50 US.C.
APP. SEC. 632, THE STATUTE HERE INVOLVED, WAS AMENDATORY TO THE ACT OF
JULY 2, 1917(40 STAT. 241), TO AUTHORIZE CONDEMNATION PROCEEDINGS OF
LANDS FOR MILITARY PURPOSES.  AS ORIGINALLY INTRODUCED, THE 1917 ACT
CONTAINED AUTHORIZATION FOR ONLY THE CONDEMNATION OF "ANY LAND, OR
RIGHT PERTAINING THERETO."  55 CONG. REC. 3632(1917).  BUT, UPON THE
UNEXPLAINED RECOMMENDATION OF THE THEN SECRETARY OF WAR, THE WORDS
"TEMPORARY USE THEREOF OR OTHER INTEREST THEREIN" WERE INSERTED AFTER
THE WORD "LAND."  SEE H.R. REP. NO. 83, 65TH CONG., 1ST SESS. (1917);
55 CONG. REC. 3991, 4130-4131, 4263(1917).  THESE WORDS WERE CARRIED
OVER BY THE AMENDATORY ACT WITHOUT COMMENT. 

SEE GENERALLY, SENATE COMMITTEE PRINT, STATEMENTS IN EXECUTIVE
SESSION ON S. 2208, 77TH CONG., 2D SESS. 6-7, 13-16; S. REP. NO. 989,
77TH CONG., 2D SESS. 4(1942); HEARINGS BEFORE THE HOUSE COMMITTEE ON
THE JUDICIARY ON S. 2208, 77TH CONG., 2D SESS. 10, 15-23(1942); H.R.
REP. NO. 1765, 77TH CONG., 2D SESS. 6(1942); 88 CONG. REC. 1639-1641,
1644-1645, 1647-1650, 1653-1656. 

FN4  SEE, E.G., TESTIMONY OF ATTORNEY GENERAL BIDDLE IN HEARINGS
BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON S. 2208, N. 2, SUPRA, AT
19: 

"MR. HANCOCK OF NEW YORK.  IS IT POSSIBLE UNDER A CONDEMNATION ACT TO
ACQUIRE TEMPORARY USE? 

"MR. BIDDLE.  YES, SIR. 

"MR. HANCOCK OF NEW YORK.  IN THAT CASE THE TITLE WOULD REVERT BACK
TO THE ORIGINAL OWNER AFTER THE TEMPORARY USE. 

"MR. BIDDLE.  YES. 

"MR. HANCOCK OF NEW YORK.  BUT YOU CAN ACQUIRE PROPERTY BY A LEASE? 

"MR. BIDDLE.  YES.  YOU CAN CONDEMN IT FOR A CERTAIN LENGTH OF
TIME." 

SEE ALSO MATERIALS CITED IN NN. 2, 3, SUPRA, AND 5, 6, INFRA. 

FN5  E.G., COMMITTEE PRINT, N. 3, SUPRA, AT 6; S. REP. NO. 989, N. 3,
SUPRA, AT 4; HEARINGS, N. 3, SUPRA, AT 10, 15-23; H.R. REP. NO. 1765,
N. 3, SUPRA, AT 6. 

FN6  SEE 88 CONG. REC. 1644-45, 1647-48, 1653.  SEE ALSO N. 4,
SUPRA. 

FN7  E.G., 54 STAT. 712, 50 U.S.C. APP. SEC. 1171(B). 

FN8  54 STAT. 713; 56 STAT. 177.  AND SEE 88 CONG. REC. 1648. 

FN9  IT IS UNNECESSARY, IF CONGRESS HAS NOT AUTHORIZED SUCH
CONDEMNATIONS, TO RELY ON ANY CONSTITUTIONAL DOUBTS CONCERNING THEM. 
BUT WE SHOULD NOTE THAT A LOCAL SCHEME NOT TOO UNLIKE THE GOVERNMENT'S
CONDEMNATION POLICIES HAS BEEN SUCCESSFULLY CHALLENGED ON
CONSTITUTIONAL GROUNDS IN AT LEAST ONE JURISDICTION.  THE GENERAL CITY
LAW OF NEW YORK PROVIDES THAT CITY PLANNING BOARDS MAY FILE MASTER
PLANS PROVIDING FOR THE DEVELOPMENT OF THE CITY, AND "FOR THE PURPOSE
OF PRESERVING THE INTEGRITY OF SUCH OFFICIAL MAP" NO PERMITS, AS A
GENERAL MATTER, WILL ISSUE FOR BUILDING IN THE BED OF ANY STREET OR
HIGHWAY LAID OUT ON THE MAP; AND THIS, DESPITE THE FACT THAT THE MAP
MAY AT ALL TIMES BE MODIFIED AND THE PROPOSED CONSTRUCTION MAY NEVER BE
CARRIED OUT.  N.Y. GENERAL CITY LAW (MCKINNEY, CONSOL.  LAWS OF N.Y.,
SUPP. 1949) SECS. 26-39.  THIS LAW EMPOWERS A MUNICIPALITY TO RESTRICT
THE USE OF PRIVATE PROPERTY WHICH IT MAY AT SOME FUTURE TIME DECIDE TO
TAKE.  SEE MATTER OF THE CITY OF NEW YORK, 196 N.Y. 255, 259, 89 N.E.
814, 815-816.  IT GRANTS, IN EFFECT, A FORM OF RESTRICTIVE OPTION.  AND
ALTHOUGH IT WAS DRAFTED WITH AN EYE TO AVOIDING THE PITFALLS WHICH
BROUGHT INVALIDATION UPON AN EARLIER SIMILAR SCHEME, SEE FORSTER V.
SCOTT, 136 N.Y. 577, 32 N.E. 976, IT HAS ALREADY BEEN SUBJECTED TO A
PRELIMINARY CONSTITUTIONAL SKIRMISH.  SEE PLATT V. CITY OF NEW YORK,
196 MISC. 360, 92 N.Y.S.2D 138, REV'D ON OTHER GROUNDS, 276 APP. DIV.
873, 93 N.Y.S.2D 738.  AND OTHER COURTS HAVE INDICATED THAT, WHERE A
RIGHT IS SO VAGUE THAT A JUDICIAL DETERMINATION CANNOT BE MADE OF JUST
COMPENSATION FOR ITS TAKING, THE RIGHT TO EXPROPRIATE FAILS, SEE
ALBRIGHT V. SUSSEX COUNTY LAKE & PARK COMM'N, 71 N.J.L. 303, 307-308,
57 A. 398, 400-401, AND THAT CERTAIN PERSONAL RIGHTS ARE NOT SUBJECT TO
CONDEMNATION.  HAMILTON, GLENDALE & CINCINNATI TRACTION CO. V. PARISH,
67 OHIO ST. 181, 192-193, 65 N.E. 1011, 1014.  THESE CASES DO NOT
GOVERN US, BUT THEY INDICATE THAT WE ARE ON THE VERY FRINGES OF
UNCONSTITUTIONALITY AND MIGHT WELL INDULGE IN AN INTERPRETATION OF THE
STATUTE WHICH WILL KEEP US CLEARLY OUT OF IT.
..END :























SOUTH V. PETERS, 339 U.S. 276 


NO. 724.  DECIDED APRIL 17, 1950.  - 89 F.SUPP.  672, AFFIRMED. 


1.  THE FEDERAL DISTRICT COURT PROPERLY DISMISSED THE COMPLAINT HEREIN
CHALLENGING THE VALIDITY OF GEORGIA'S COUNTY UNIT ELECTION SYSTEM UNDER
THE FOURTEENTH AND SEVENTEENTH AMENDMENTS.  PP. 276-277. 

2.  FEDERAL COURTS CONSISTENTLY REFUSE TO EXERCISE THEIR EQUITY
POWERS IN CASES POSING POLITICAL ISSUES ARISING FROM A STATE'S
GEOGRAPHICAL DISTRIBUTION OF ELECTORAL STRENGTH AMONG ITS POLITICAL
SUBDIVISIONS.  P. 277. 

SOUTH ET AL. V. PETERS, CHAIRMAN OF THE GEORGIA STATE DEMOCRATIC
EXECUTIVE COMMITTEE, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA. 

THE DISTRICT COURT DISMISSED A SUIT TO RESTRAIN ADHERENCE TO THE
COUNTY UNIT SYSTEM PRESCRIBED BY GA. CODE ANN. SECS. 34-3212 ET SEQ.,
IN THE FORTHCOMING DEMOCRATIC PARTY PRIMARY FOR UNITED STATES SENATOR,
GOVERNOR AND OTHER STATE OFFICES.  89 F.SUPP.  672.  ON APPEAL TO THIS
COURT, AFFIRMED, P. 277. 

PER CURIAM. 

THE GEORGIA STATUTE WHICH APPELLANTS ATTACK AS VIOLATIVE OF THE
FOURTEENTH AND SEVENTEENTH AMENDMENTS PROVIDES THAT COUNTY UNIT VOTES
SHALL DETERMINE THE OUTCOME OF A PRIMARY ELECTION.  FN1 EACH COUNTY IS
ALLOTTED A NUMBER OF UNIT VOTES, RANGING FROM SIX FOR THE EIGHT MOST
POPULOUS COUNTIES, TO TWO FOR MOST OF THE COUNTIES.  THE CANDIDATE WHO
RECEIVES THE HIGHEST POPULAR VOTE IN THE COUNTY IS AWARDED THE
APPROPRIATE NUMBER OF UNIT VOTES.  APPELLANTS, RESIDENTS OF THE MOST
POPULOUS COUNTY IN THE STATE, CONTEND THAT THEIR VOTES AND THOSE OF ALL
OTHER VOTERS IN THAT COUNTY HAVE ON THE AVERAGE BUT ONE-TENTH THE
WEIGHT OF THOSE IN THE OTHER COUNTIES.  URGING THAT THIS AMOUNTS TO AN
UNCONSTITUTIONAL DISCRIMINATION AGAINST THEM, APPELLANTS BROUGHT THIS
SUIT TO RESTRAIN ADHERENCE TO THE STATUTE IN THE FORTHCOMING DEMOCRATIC
PARTY PRIMARY FOR UNITED STATES SENATOR, GOVERNOR AND OTHER STATE
OFFICES. 

THE COURT BELOW DISMISSED APPELLANTS' PETITION.  89 F.SUPP.  672.  WE
AFFIRM.  FEDERAL COURTS CONSISTENTLY REFUSE TO EXERCISE THEIR EQUITY
POWERS IN CASES POSING POLITICAL ISSUES ARISING FROM A STATE'S
GEOGRAPHICAL DISTRIBUTION OF ELECTORAL STRENGTH AMONG ITS POLITICAL
SUBDIVISIONS.  SEE MACDOUGALL V. GREEN, 335 U.S. 281(1948); COLEGROVE
V. GREEN, 328 U.S. 549(1946); WOOD V. BROOM, 287 U.S. 1, 8(1932); CF.
JOHNSON V. STEVENSON, 170 F.2D 108(C.A.5TH CIR., 1948).  AFFIRMED. 

FN1  GA. CODE ANN. SECS. 34-3212 ET SEQ. (1936).  ALTHOUGH THIS
PARTICULAR STATUTE WAS ENACTED IN 1917, THE COUNTY UNIT HAS BEEN BASIC
IN THE STATE ELECTORAL SCHEME SINCE GEORGIA'S FIRST CONSTITUTION IN
1777. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I SUPPOSE THAT IF A STATE REDUCED THE VOTE OF NEGROES, CATHOLICS, OR
JEWS SO THAT EACH GOT ONLY ONE-TENTH OF A VOTE, WE WOULD STRIKE THE LAW
DOWN.  THE RIGHT TO VOTE IN A PRIMARY WAS HELD IN NIXON V. HERNDON, 273
U.S. 536, TO BE COVERED BY THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  AND WHERE, AS IN GEORGIA, A PARTY PRIMARY
ELECTION IS AN INTEGRAL PART OF THE STATE ELECTION MACHINERY, THE RIGHT
TO VOTE IN IT IS PROTECTED BY THE FIFTEENTH AMENDMENT.  SMITH V.
ALLWRIGHT, 321 U.S. 649.  AND SEE UNITED STATES V. CLASSIC, 313 U.S.
299.  UNDER BOTH AMENDMENTS DISCRIMINATIONS BASED ON RACE, CREED OR
COLOR FALL BEYOND THE PALE. 

YET THERE IS EVIDENCE IN THIS CASE SHOWING THAT GEORGIA'S COUNTY UNIT
SYSTEM OF CONSOLIDATING VOTES IN PRIMARY ELECTIONS MAKES AN EQUALLY
INVIDIOUS DISCRIMINATION.  UNDER THIS PRIMARY LAW THE NOMINATION DOES
NOT GO TO THE CANDIDATE WHO GETS THE MAJORITY OR PLURALITY OF VOTES. 
VOTES ARE COUNTED COUNTY BY COUNTY.  THE WINNER IN EACH COUNTY GETS A
DESIGNATED NUMBER OF VOTES - SIX IN THE MOST POPULOUS COUNTIES, FOUR IN
THE NEXT MOST POPULOUS, TWO IN EACH OF THE REST. 

PLAINTIFFS ARE REGISTERED VOTERS IN GEORGIA'S MOST POPULOUS COUNTY -
FULTON COUNTY.  THEY COMPLAIN THAT THEIR VOTES WILL BE COUNTED SO AS
DRASTICALLY TO REDUCE THEIR VOTING STRENGTH. 

THEY SHOW THAT A VOTE IN ONE COUNTY WILL BE WORTH OVER 120 TIMES EACH
OF THEIR VOTES.  THEY SHOW THAT IN 45 COUNTIES A VOTE WILL BE GIVEN
TWENTY TIMES THE WEIGHT OF EACH OF THEIRS.  THEY SHOW THAT ON A STATE
WIDE AVERAGE EACH VOTE OUTSIDE FULTON COUNTY WILL HAVE OVER 11 TIMES
THE WEIGHT OF EACH VOTE OF THE PLAINTIFFS. 

POPULATION FIGURES SHOW THAT THERE IS A HEAVY NEGRO POPULATION IN THE
LARGE CITIES.  THERE IS TESTIMONY IN THE RECORD THAT ONLY IN THOSE
AREAS HAVE NEGROES BEEN ABLE TO VOTE IN IMPORTANT NUMBERS.  YET THE
COUNTY UNIT SYSTEM HEAVILY DISENFRANCHISES THAT URBAN NEGRO
POPULATION.  THE COUNTY UNIT SYSTEM HAS INDEED BEEN CALLED THE "LAST
LOOPHOLE" AROUND OUR DECISIONS HOLDING THAT THERE MUST BE NO
DISCRIMINATION BECAUSE OF RACE IN PRIMARY AS WELL AS IN GENERAL
ELECTIONS. 

THE RACIAL ANGLE OF THE CASE ONLY EMPHASIZES THE BITE OF THE DECISION
WHICH SUSTAINS THE COUNTY UNIT SYSTEM OF VOTING.  THE DISCRIMINATION
AGAINST CITIZENS IN THE MORE POPULOUS COUNTIES OF GEORGIA IS PLAIN. 
BECAUSE THEY ARE CITY FOLKS THEIR VOTING POWER IS ONLY AN ELEVENTH OR A
HUNDRED AND TWENTIETH OF THE VOTING POWER OF OTHER CITIZENS.  I CAN SEE
NO WAY TO SAVE THAT CLASSIFICATION UNDER THE EQUAL PROTECTION CLAUSE. 
THE CREATION BY LAW OF FAVORED GROUPS OF CITIZENS AND THE GRANT TO THEM
OF PREFERRED POLITICAL RIGHTS IS THE WORST OF ALL DISCRIMINATIONS UNDER
A DEMOCRATIC SYSTEM OF GOVERNMENT. 

THE COUNTY UNIT SYSTEM HAS OTHER CONSTITUTIONAL INFIRMITIES.  ARTICLE
I, SEC. 2 OF THE CONSTITUTION PROVIDES THAT MEMBERS OF THE HOUSE OF
REPRESENTATIVES SHALL BE "CHOSEN" BY THE PEOPLE.  AND THE SEVENTEENTH
AMENDMENT PROVIDES THAT SENATORS SHALL BE "ELECTED BY THE PEOPLE." 
THESE CONSTITUTIONAL RIGHTS EXTEND TO THE PRIMARY WHERE THAT ELECTION
IS AN INTEGRAL PART OF THE PROCEDURE OF CHOOSING REPRESENTATIVES OR
SENATORS, OR WHERE IN FACT THE PRIMARY EFFECTIVELY CONTROLS THE
CHOICE.  UNITED STATES V. CLASSIC, SUPRA.  IN GEORGIA'S PRIMARY TO BE
HELD ON JUNE 28, 1950, A UNITED STATES SENATOR WILL BE NOMINATED. 
CERTAINLY IN A STATE LIKE GEORGIA, WHERE THE DEMOCRATIC NOMINATION IS
EQUIVALENT TO ELECTION, IT WOULD BE A TRAVESTY TO SAY THAT THE TRUE
ELECTION IN THE CONSTITUTIONAL SENSE COMES LATER. 

THERE IS MORE TO THE RIGHT TO VOTE THAN THE RIGHT TO MARK A PIECE OF
PAPER AND DROP IT IN A BOX OR THE RIGHT TO PULL A LEVER IN A VOTING
BOOTH.  THE RIGHT TO VOTE INCLUDES THE RIGHT TO HAVE THE BALLOT
COUNTED.  UNITED STATES V. CLASSIC, SUPRA; EX PARTE YARBROUGH, 110 U.S.
651.  IT ALSO INCLUDES THE RIGHT TO HAVE THE VOTE COUNTED AT FULL VALUE
WITHOUT DILUTION OR DISCOUNT.  UNITED STATES V. SAYLOR, 322 U.S. 385. 
THAT FEDERALLY PROTECTED RIGHT SUFFERS SUBSTANTIAL DILUTION IN THIS
CASE.  THE FAVORED GROUP HAS FULL VOTING STRENGTH.  THE GROUPS NOT IN
FAVOR HAVE THEIR VOTES DISCOUNTED. 

IN COLEGROVE V. GREEN, 328 U.S. 549, WE HAD BEFORE US A CASE
INVOLVING THE DIVISION OF ILLINOIS INTO CONGRESSIONAL DISTRICTS IN SUCH
A WAY THAT GROSS INEQUALITIES IN VOTING RESULTED.  CITIZENS OF HEAVILY
POPULATED DISTRICTS SUED TO ENJOIN STATE OFFICIALS FROM HOLDING AN
ELECTION UNDER THE ILLINOIS LAW GOVERNING CONGRESSIONAL DISTRICTS. 
THERE WAS AN ARGUMENT, PERSUASIVE TO THREE MEMBERS OF THE COURT, THAT
THE ISSUE PRESENTED WAS OF A POLITICAL NATURE AND NOT JUSTICIABLE, THAT
IT WAS AN EFFORT TO GET THE FEDERAL COURTS "TO RECONSTRUCT THE
ELECTORAL PROCESS OF ILLINOIS IN ORDER THAT IT MAY BE ADEQUATELY
REPRESENTED IN THE COUNCILS OF THE NATION."  328 U.S. 552.  AND IN
MACDOUGALL V. GREEN, 335 U.S. 281, THE COURT ON A CLOSELY DIVIDED VOTE
REFUSED TO INTERFERE WITH THE PROVISIONS OF THE ILLINOIS LAW GOVERNING
THE FORMATION OF A NEW POLITICAL PARTY.  THERE IS NO SUCH FORCE IN THE
ARGUMENT THAT THE QUESTION IN THE PRESENT CASE IS POLITICAL AND NOT
JUSTICIABLE. 

PLAINTIFFS SUE AS INDIVIDUALS TO ENFORCE RIGHTS POLITICAL IN ORIGIN
AND RELATING TO POLITICAL ACTION.  BUT AS MR. JUSTICE HOLMES SAID OF
THE SAME ARGUMENT IN NIXON V. HERNDON, SUPRA, P. 540, IT IS "LITTLE
MORE THAN A PLAY UPON WORDS" TO CALL IT A POLITICAL SUIT AND THEREFORE
A NONJUSTICIABLE ONE.  THE RIGHTS THEY SEEK TO ENFORCE ARE PERSONAL AND
INDIVIDUAL.  MOREOVER, NO DECREE WHICH WE NEED ENTER WOULD COLLIDE
EITHER WITH CONGRESS OR WITH THE ELECTION.  GEORGIA NEED NOT BE
REMAPPED POLITICALLY.  THE GEORGIA LEGISLATURE NEED NOT TAKE NEW ACTION
AFTER OUR DECREE.  THERE IS NO NECESSITY THAT WE SUPERVISE AN
ELECTION.  THERE NEED BE NO CHANGE OR ALTERATION IN THE PLACE OF THE
ELECTION, ITS TIME, THE BALLOTS THAT ARE USED, OR THE REGULATIONS THAT
GOVERN ITS CONDUCT.  THE WRONG DONE BY THE COUNTY UNIT SYSTEM TAKES
PLACE NOT ONLY AFTER THE BALLOTS ARE IN THE BOX BUT ALSO AFTER THEY
HAVE BEEN COUNTED.  THE IMPACT OF THE DECREE WOULD BE ON THE TALLYING
OF VOTES AND THE DETERMINATION OF WHAT NAMES GO ON THE GENERAL ELECTION
BALLOT.  THE INTERFERENCE WITH THE POLITICAL PROCESSES OF THE STATE IS
NO GREATER HERE THAN IT IS WHEN BALLOT BOXES ARE STUFFED OR OTHER
TAMPERING WITH THE VOTES OCCURS AND WE TAKE ACTION TO CORRECT THE
PRACTICE.  AND RELATED CONSIDERATIONS, WHICH LED MR. JUSTICE RUTLEDGE
TO CONCLUDE IN COLEGROVE V. GREEN THAT THE COURT SHOULD NOT EXERCISE
ITS EQUITY POWERS IN THAT ELECTION, ARE LACKING HERE.  THERE IS TIME TO
ACT, SINCE THE STATE PRIMARY IS CALLED FOR JUNE 28, 1950.  RELIEF CAN
BE CERTAIN.  NO CONFLICT WITH ANY POLICY OF CONGRESS IS POSSIBLE. 
THERE IS NO OVERHAULING OF THE STATE'S ELECTORAL PROCESS. 

THE CASE IS OF GREATER IMPORTANCE THAN THE RIGHTS OF PLAINTIFFS IN
THIS NEXT ELECTION MAY APPEAR TO BE.  WE HAVE HERE A SYSTEM OF
DISCRIMINATION IN PRIMARY VOTING THAT UNDERMINES THE ADVANCES MADE BY
THE NIXON, CLASSIC, AND ALLWRIGHT CASES.  THOSE DECISIONS ARE DEFEATED
BY A DEVICE AS DEEPLY ROOTED IN DISCRIMINATION AS THE PRACTICE WHICH
KEEPS A MAN FROM THE VOTING BOOTH BECAUSE OF HIS RACE, CREED OR COLOR,
OR WHICH FAILS TO COUNT HIS VOTE AFTER IT HAS BEEN CAST. 

IT IS SAID THAT THE DILUTION OF PLAINTIFFS' VOTES IN THE PRESENT CASE
IS JUSTIFIED BECAUSE EQUALITY OF VOTING IS UNNECESSARY IN THE
NOMINATION OF UNITED STATES SENATORS.  THUS IT IS POINTED OUT THAT IN
SOME STATES NOMINATION IS BY CONVENTIONS.  BUT THAT PROVES TOO MUCH. 
IF THAT PREMISE IS ALLOWED, THEN THE WHOLE GROUND IS CUT FROM UNDER OUR
PRIMARY CASES SINCE NIXON V. HERNDON, WHICH HAVE INSISTED THAT WHERE
THERE IS VOTING THERE BE EQUALITY.  INDEED THE ONLY TENABLE PREMISE
UNDER THE FOURTEENTH, FIFTEENTH AND SEVENTEENTH AMENDMENTS IS THAT
WHERE NOMINATIONS ARE MADE IN PRIMARY ELECTIONS, THERE SHALL BE NO
INEQUALITY IN VOTING POWER BY REASON OF RACE, CREED, COLOR OR OTHER
INVIDIOUS DISCRIMINATION. 
..END :
















SLOCUM V. DELAWARE, L. & W.R. CO., 339 U.S. 239 


NO. 391.  ARGUED FEBRUARY 8, 1950.  - DECIDED APRIL 10, 1950.  - 299
N.Y. 496, 87 N.E.2D 532, REVERSED. 


1.  A RAILROAD HAD SEPARATE COLLECTIVE-BARGAINING AGREEMENTS WITH TWO
LABOR UNIONS.  A DISPUTE AROSE BETWEEN THE TWO UNIONS CONCERNING THE
SCOPE OF THEIR RESPECTIVE AGREEMENTS, EACH CLAIMING FOR ITS MEMBERS
CERTAIN JOBS WITH THE RAILROAD.  THE CLAIMS WERE PURSUED IN "THE USUAL
MANNER" UNDER SEC. 3 FIRST (I) OF THE RAILWAY LABOR ACT, WITHOUT
REACHING AN ADJUSTMENT.  INSTEAD OF INVOKING THE JURISDICTION OF THE
ADJUSTMENT BOARD, THE RAILROAD FILED A DECLARATORY JUDGMENT ACTION IN A
STATE COURT, NAMING BOTH UNIONS AS DEFENDANTS.  AFTER A TRIAL, THE
STATE COURT INTERPRETED THE AGREEMENTS AND ENTERED A DECLARATORY
JUDGMENT.  HELD:  UNDER SEC. 3 OF THE RAILWAY LABOR ACT, THE
JURISDICTION OF THE ADJUSTMENT BOARD TO ADJUST GRIEVANCES AND DISPUTES
OF THE TYPE HERE INVOLVED IS EXCLUSIVE, AND THE STATE COURT ERRED IN
INTERPRETING THE AGREEMENTS AND ENTERING A DECLARATORY JUDGMENT.  PP.
240-245. 

2.  THE RATIONALE OF ORDER OF CONDUCTORS V. PITNEY, 326 U.S. 561,
HOLDING THAT FEDERAL COURTS SHOULD NOT INTERPRET A CARRIER-UNION
COLLECTIVE AGREEMENT PRIOR TO AN INTERPRETATION OF SUCH AGREEMENT BY
THE ADJUSTMENT BOARD, EQUALLY SUPPORTS A DENIAL OF POWER TO A STATE
COURT TO INVADE THE JURISDICTION CONFERRED ON THE ADJUSTMENT BOARD BY
THE RAILWAY LABOR ACT.  MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630,
DISTINGUISHED.  PP. 243-245. 

SLOCUM, GENERAL CHAIRMAN, LACKAWANNA DIVISION NO. 30, ORDER OF
RAILROAD TELEGRAPHERS, V. DELAWARE, LACKAWANNA & WESTERN RAILROAD CO. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

A RAILROAD BROUGHT A DECLARATORY JUDGMENT ACTION IN A NEW YORK STATE
COURT, NAMING AS DEFENDANTS TWO LABOR UNIONS WITH WHICH IT HAD SEPARATE
COLLECTIVE-BARGAINING AGREEMENTS.  THE STATE COURT INTERPRETED THE
AGREEMENTS AND ENTERED A DECLARATORY JUDGMENT, WHICH WAS AFFIRMED BY
THE APPELLATE DIVISION, 274 APP. DIV. 950, 83 N.Y.S.2D 513, AND THE
COURT OF APPEALS, 299 N.Y. 496, 87 N.E.2D 532.  THIS COURT GRANTED
CERTIORARI.  338 U.S. 890.  REVERSED AND REMANDED, P. 245. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

NATIONAL RAILROAD ADJUSTMENT BOARD TO HOLD HEARINGS, MAKE FINDINGS, AND
ENTER AWARDS IN ALL DISPUTES BETWEEN CARRIERS AND THEIR EMPLOYEES
"GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION
OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING CONDITIONS
...  "  FN1  THE QUESTION PRESENTED IS WHETHER STATE COURTS HAVE POWER
TO ADJUDICATE DISPUTES INVOLVING SUCH INTERPRETATIONS WHEN THE
ADJUSTMENT BOARD HAS NOT ACTED. 

THE RESPONDENT RAILROAD HAS SEPARATE COLLECTIVE-BARGAINING AGREEMENTS
WITH THE ORDER OF RAILROAD TELEGRAPHERS AND THE BROTHERHOOD OF RAILWAY
CLERKS.  FN2  A DISPUTE AROSE BETWEEN THE TWO UNIONS CONCERNING THE
SCOPE OF THEIR RESPECTIVE AGREEMENTS.  EACH CLAIMED FOR ITS MEMBERS
CERTAIN JOBS IN THE RAILROAD YARDS AT ELMIRA, NEW YORK.  THE RAILROAD
AGREED WITH THE CLERKS UNION.  THE CHAIRMAN OF TELEGRAPHERS PROTESTED,
URGING REASSIGNMENT OF THE WORK TO MEMBERS OF HIS UNION AND CLAIMING
BACK PAY ON BEHALF OF CERTAIN INDIVIDUAL MEMBERS.  THE CLAIMS WERE
PURSUED IN "THE USUAL MANNER" REQUIRED BY SEC. 3 FIRST (I) OF THE
RAILWAY LABOR ACT, 45 U.S.C. SEC. 153 FIRST (I), AS A PREREQUISITE TO
INVOKING JURISDICTION OF THE ADJUSTMENT BOARD.  FN3  THAT SECTION
FURTHER PROVIDES THAT, "FAILING TO REACH AN ADJUSTMENT IN THIS MANNER,
THE DISPUTES MAY BE REFERRED BY PETITION OF THE PARTIES OR BY EITHER
PARTY TO THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD  ...  " 

INSTEAD OF INVOKING THE JURISDICTION OF THE ADJUSTMENT BOARD, THE
RAILROAD FILED THIS ACTION FOR DECLARATORY JUDGMENT IN A NEW YORK STATE
COURT, NAMING BOTH UNIONS AS DEFENDANTS.  IT PRAYED FOR AN
INTERPRETATION OF BOTH AGREEMENTS, AND FOR A DECLARATION THAT THE
CLERKS'  AGREEMENT, NOT THE TELEGRAPHERS', COVERED THE JOBS IN
CONTROVERSY.  IT ALSO ASKED FOR A DECLARATION THAT THE TELEGRAPHERS
MUST REFRAIN FROM MAKING SIMILAR CLAIMS UNDER ITS BARGAINING
AGREEMENT.  TELEGRAPHERS MOVED TO DISMISS THE CASE ON THE GROUND THAT
THE RAILWAY LABOR ACT LEFT THE STATE COURT WITHOUT JURISDICTION TO
INTERPRET THE CONTRACTS AND ADJUDICATE THE DISPUTE.  THAT MOTION WAS
DENIED.  AFTER A TRIAL, THE COURT INTERPRETED THE CONTRACTS AS THE
RAILROAD HAD URGED, AND ENTERED THE REQUESTED DECLARATIONS.  THIS
JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS OF NEW YORK, TWO JUDGES
DISSENTING.  299 N.Y. 496, 87 N.E.2D 532.  FN4  THE MAJORITY THOUGHT
THAT OUR OPINION IN MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630,
LEFT STATE COURTS FREE TO ADJUDICATE DISPUTES ARISING OUT OF A CARRIER
UNION COLLECTIVE AGREEMENT WITHOUT OBTAINING THE BOARD'S INTERPRETATION
OF THAT AGREEMENT.  THE DISSENTING JUDGES, HOWEVER, RELIED ON ORDER OF
CONDUCTORS V. PITNEY, 326 U.S. 561, WHERE WE HELD THAT FEDERAL COURTS
SHOULD NOT INTERPRET SUCH AGREEMENTS PRIOR TO INTERPRETATION BY THE
ADJUSTMENT BOARD.  THEY ASSERTED THAT THIS RULE WAS ALSO APPLICABLE IN
STATE COURTS.  WE GRANTED CERTIORARI TO CONSIDER THESE QUESTIONS.  338
U.S. 890. 

THE FIRST DECLARED PURPOSE OF THE RAILWAY LABOR ACT IS "TO AVOID ANY
INTERRUPTION TO COMMERCE OR TO THE OPERATION OF ANY CARRIER ENGAGED
THEREIN."  48 STAT. 1186(SEC.  2), 45 U.S.C. SEC. 151A.  THIS PURPOSE
EXTENDS BOTH TO DISPUTES CONCERNING THE MAKING OF COLLECTIVE AGREEMENTS
AND TO GRIEVANCES ARISING UNDER EXISTING AGREEMENTS.  SEE ELGIN, J. &
E.R. CO. V. BURLEY, 325 U.S. 711, 722.  THE PLAN OF THE ACT IS TO
PROVIDE ADMINISTRATIVE METHODS FOR SETTLING DISPUTES BEFORE THEY REACH
ACUTE STAGES THAT MIGHT BE PROVOCATIVE OF STRIKES.  CARRIERS ARE
THEREFORE REQUIRED TO NEGOTIATE WITH BARGAINING REPRESENTATIVES OF THE
EMPLOYEES.  VIRGINIAN R. CO. V. FEDERATION, 300 U.S. 515, 547, 548. 
THE ACT ALSO SETS UP MACHINERY FOR CONCILIATION, MEDIATION, ARBITRATION
AND ADJUSTMENT OF DISPUTES, TO BE INVOKED IF NEGOTIATIONS FAIL. 

IN THIS CASE THE DISPUTE CONCERNED INTERPRETATION OF AN EXISTING
BARGAINING AGREEMENT.  ITS SETTLEMENT WOULD HAVE PROSPECTIVE AS WELL AS
RETROSPECTIVE IMPORTANCE TO BOTH THE RAILROAD AND ITS EMPLOYEES, SINCE
THE INTERPRETATION ACCEPTED WOULD GOVERN FUTURE RELATIONS OF THOSE
PARTIES.  THIS TYPE OF GRIEVANCE HAS LONG BEEN CONSIDERED A POTENT
CAUSE OF FRICTION LEADING TO STRIKES.  IT WAS TO PREVENT SUCH FRICTION
THAT THE 1926 ACT PROVIDED FOR CREATION OF VARIOUS ADJUSTMENT BOARDS BY
VOLUNTARY AGREEMENTS BETWEEN CARRIERS AND WORKERS.  44 STAT. 578.  BUT
THIS VOLUNTARY MACHINERY PROVED UNSATISFACTORY, AND IN 1934 CONGRESS,
WITH THE SUPPORT OF BOTH UNIONS AND RAILROADS, PASSED AN AMENDMENT
WHICH DIRECTLY CREATED A NATIONAL ADJUSTMENT BOARD COMPOSED OF
REPRESENTATIVES OF RAILROADS AND UNIONS.  FN5  48 STAT. 1189-1193.  THE
ACT THUS REPRESENTS A CONSIDERED EFFORT ON THE PART OF CONGRESS TO
PROVIDE EFFECTIVE AND DESIRABLE ADMINISTRATIVE REMEDIES FOR ADJUSTMENT
OF RAILROAD-EMPLOYEE DISPUTES GROWING OUT OF THE INTERPRETATION OF
EXISTING AGREEMENTS.  THE ADJUSTMENT BOARD IS WELL EQUIPPED TO EXERCISE
ITS CONGRESSIONALLY IMPOSED FUNCTIONS.  ITS MEMBERS UNDERSTAND RAILROAD
PROBLEMS AND SPEAK THE RAILROAD JARGON.  FN6  LONG AND VARIED
EXPERIENCES HAVE ADDED TO THE BOARD'S INITIAL QUALIFICATIONS. 
PRECEDENTS ESTABLISHED BY IT, WHILE NOT NECESSARILY BINDING, PROVIDE
OPPORTUNITIES FOR A DESIRABLE DEGREE OF UNIFORMITY IN THE
INTERPRETATION OF AGREEMENTS THROUGHOUT THE NATION'S RAILWAY SYSTEMS. 

THE PARAMOUNT IMPORTANCE OF HAVING THESE CHOSEN REPRESENTATIVES OF
RAILROADS AND UNIONS ADJUST GRIEVANCES AND DISPUTES WAS EMPHASIZED BY
OUR OPINION IN ORDER OF CONDUCTORS V. PITNEY, SUPRA. THERE WE HELD, IN
A CASE REMARKABLY SIMILAR TO THE ONE BEFORE US NOW, THAT THE FEDERAL
DISTRICT COURT IN ITS EQUITABLE DISCRETION SHOULD HAVE REFUSED "TO
ADJUDICATE A JURISDICTIONAL DISPUTE INVOLVING THE RAILROAD AND TWO
EMPLOYEE ACCREDITED BARGAINING AGENTS  ...  "  OUR GROUND FOR THIS
HOLDING WAS THAT THE COURT "SHOULD NOT HAVE INTERPRETED THE CONTRACTS"
BUT SHOULD HAVE LEFT THIS QUESTION FOR DETERMINATION BY THE ADJUSTMENT
BOARD, A CONGRESSIONALLY DESIGNATED AGENCY PECULIARLY COMPETENT IN THIS
FIELD.  326 U.S. AT 567-568.  THIS REASONING EQUALLY SUPPORTS A DENIAL
OF POWER IN ANY COURT - STATE AS WELL AS FEDERAL - TO INVADE THE
JURISDICTION CONFERRED ON THE ADJUSTMENT BOARD BY THE RAILWAY LABOR
ACT. 

OUR HOLDING HERE IS NOT INCONSISTENT WITH OUR HOLDING IN MOORE V.
ILLINOIS CENTRAL R. CO., 312 U.S. 630.  MOORE 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. 

WE HOLD THAT THE JURISDICTION OF THE BOARD TO ADJUST GRIEVANCES AND
DISPUTES OF THE TYPE HERE INVOLVED IS EXCLUSIVE N7.  THE HOLDING OF THE
MOORE CASE DOES NOT CONFLICT WITH THIS DECISION, AND NO CONTRARY
INFERENCE SHOULD BE DRAWN FROM ANY LANGUAGE IN THE MOORE OPINION.  IT
WAS ERROR FOR THE NEW YORK COURTS TO UPHOLD A DECLARATORY JUDGMENT
INTERPRETING THESE COLLECTIVE-BARGAINING AGREEMENTS.  THE JUDGMENT OF
THE NEW YORK COURT OF APPEALS IS REVERSED AND THE CAUSE IS REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  48 STAT. 1185, 1189-1193, 45 U.S.C. SEC. 153. 

FN2  THE FULL NAME OF THE LATTER UNION IS BROTHERHOOD OF RAILWAY AND
STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES. 

FN3  "THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A
CARRIER OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY,
RULES, OR WORKING CONDITIONS  ...  SHALL BE HANDLED IN THE USUAL MANNER
UP TO AND INCLUDING THE CHIEF OPERATING OFFICER OF THE CARRIER
DESIGNATED TO HANDLE SUCH DISPUTES; BUT, FAILING TO REACH AN ADJUSTMENT
IN THIS MANNER, THE DISPUTES MAY BE REFERRED BY PETITION OF THE PARTIES
OR BY EITHER PARTY TO THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD
WITH A FULL STATEMENT OF THE FACTS AND ALL SUPPORTING DATA BEARING UPON
THE DISPUTES."  48 STAT. 1191. 

FN4  THE APPELLATE DIVISION OF THE SUPREME COURT (3D DEPT.) ALSO
AFFIRMED BOTH THE ORDER OF THE TRIAL COURT DENYING THE MOTION TO
DISMISS, 269 APP. DIV. 467, 57 N.Y.S.2D 65, AND THE SUBSEQUENT JUDGMENT
ON THE MERITS, 274 APP. DIV. 950, 83 N.Y.S.2D 513.  AN OPINION OF THE
NEW YORK SUPREME COURT DENYING PETITIONER'S MOTION TO REMOVE THE ACTION
TO THE UNITED STATES DISTRICT COURT IS REPORTED AT 183 MISC. 454, 50
N.Y.S.2D 313.  THE OPINION OF THE UNITED STATES DISTRICT JUDGE
REMANDING THE CASE TO THE STATE COURT IS REPORTED IN 56 F.SUPP.  634. 

FN5  "THESE UNADJUSTED DISPUTES HAVE BECOME SO NUMEROUS THAT ON
SEVERAL OCCASIONS THE EMPLOYEES HAVE RESORTED TO THE ISSUANCE OF STRIKE
BALLOTS AND THREATENED TO INTERRUPT INTERSTATE COMMERCE IN ORDER TO
SECURE AN ADJUSTMENT.  THIS HAS MADE IT NECESSARY FOR THE PRESIDENT OF
THE UNITED STATES TO INTERVENE AND ESTABLISH AN EMERGENCY BOARD TO
INVESTIGATE THE CONTROVERSIES.  THIS CONDITION SHOULD BE CORRECTED IN
THE INTEREST OF INDUSTRIAL PEACE AND OF UNINTERRUPTED TRANSPORTATION
SERVICE.  THIS BILL, THEREFORE, PROVIDES FOR THE ESTABLISHMENT OF A
NATIONAL BOARD OF ADJUSTMENT TO WHICH THESE DISPUTES MAY BE SUBMITTED
IF THEY SHALL NOT HAVE BEEN ADJUSTED IN CONFERENCE BETWEEN THE
PARTIES."  H.R. REP. NO. 1944, 73D CONG., 2D SESS. 3. 

FN6  FOR AN INTERESTING DISCUSSION OF THE ACT'S HISTORY AND PURPOSES,
SEE GARRISON, "THE NATIONAL RAILROAD ADJUSTMENT BOARD:  A UNIQUE
ADMINISTRATIVE AGENCY," 46 YALE L.J. 567 ET SEQ. 

FN7  WE ARE NOT CONFRONTED HERE WITH ANY DISAGREEMENT OR CONFLICT IN
INTEREST BETWEEN AN EMPLOYEE AND HIS BARGAINING REPRESENTATIVE, AS IN
STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192.  NOR ARE WE CALLED UPON
TO DECIDE ANY QUESTION CONCERNING JUDICIAL PROCEEDINGS TO REVIEW BOARD
ACTION OR INACTION. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, DISSENTING. 

THE COURT DENIES "POWER IN ANY COURT - STATE AS WELL AS FEDERAL - TO
INVADE THE JURISDICTION CONFERRED ON THE ADJUSTMENT BOARD BY THE
RAILWAY LABOR ACT."  IT SAYS "THAT THE JURISDICTION OF THE BOARD TO
ADJUST GRIEVANCES AND DISPUTES OF THE TYPE HERE INVOLVED IS
EXCLUSIVE."  READ LITERALLY, THIS LANGUAGE WOULD INDICATE THAT THE
COURT HOLDS THAT THE BOARD IN MOST CASES NOT ONLY HAS EXCLUSIVE
JURISDICTION FOR THE INSTITUTION OF PROCEEDINGS TO DETERMINE RIGHTS
UNDER RAILROAD COLLECTIVE-BARGAINING AGREEMENTS, BUT ALSO FOR THEIR
FINAL DETERMINATION, I.E., THAT THERE IS NO JUDICIAL REVIEW OF THE
BOARD'S AWARDS, EXCEPT THOSE FOR MONEY.  THE COURT, HOWEVER, IN NOTE 7
STATES THAT IT IS NOT "CALLED UPON TO DECIDE ANY QUESTION CONCERNING
JUDICIAL PROCEEDINGS TO REVIEW BOARD ACTION OR INACTION."  FROM THIS I
TAKE IT THAT THE COURT MEANS ONLY TO HOLD THAT THE BOARD HAS WHAT MIGHT
BE CALLED EXCLUSIVE PRIMARY JURISDICTION AND THAT THE DECISION IS TO
HAVE NO IMPLICATIONS FOR LATER CASES WHICH MIGHT POSE THE ISSUE OF
JUDICIAL REVIEW OF BOARD "ACTION OR INACTION."  FN1  NEVERTHELESS I
THINK THE COURT'S DECISION LACKS STATUTORY BASIS, AND I DISSENT FROM
ITS OPINION AND JUDGMENT. 

SINCE THE COURT'S DECISION WILL BE REFERRED TO AS A PRECEDENT FOR
SOLVING ADMINISTRATIVE JURISDICTION PROBLEMS, IT SEEMS WORTH WHILE TO
SET OUT MY REASONS FOR DISAGREEING WITH THE COURT'S OPINION.  WE CAN
FORESEE ONLY A PART OF THE COMPLICATIONS THAT THIS RULING OF EXCLUSIVE
PRIMARY JURISDICTION MAY BRING INTO THE ADMINISTRATION OF THE RAILWAY
LABOR ACT.  THE DETERMINATION OF WHAT ADJUDICATORY BODY HAS POWER TO
JUDGE A CONTROVERSY IS BASIC TO ALL LITIGATION.  JURISDICTION THAT HAS
ALWAYS BEEN RECOGNIZED TO EXIST IN STATE COURTS SHOULD NOT BE TAKEN
FROM THEM BY INFERENCE DRAWN WITH DIFFICULTY FROM THE STATUTE BY THIS
COURT AFTER CONTRARY CONCLUSIONS BY TWO STATE COURTS.  FN2  THE PASSAGE
OF A FEDERAL LAW CREATING A FORUM FOR THE ENFORCEMENT OF CERTAIN
CONTRACT RIGHTS CONNECTED WITH COMMERCE DOES NOT NECESSARILY WITHDRAW
FROM STATE COURTS THEIR RECOGNIZED JURISDICTION OVER THESE CONTRACT
CONTROVERSIES.  THE PURPOSE TO LIMIT ENFORCEMENT TO THE FEDERAL FORUM
MUST BE FOUND IN THE FEDERAL STATUTE IN EXPRESS WORDS OR NECESSARY
IMPLICATION.  FN3    THE COURT CALLS ATTENTION TO NOTHING TO SUPPLY
THESE REQUISITES.  THERE IS NOT A LINE IN THE STATUTE, AND SO FAR AS I
CAN ASCERTAIN, NOT A SUGGESTION IN THE HEARINGS THAT THE CREATION OF
THE ADJUSTMENT BOARD WAS INTENDED BY CONGRESS TO CLOSE THE DOORS OF THE
COURTS TO LITIGANTS WITH OTHERWISE JUSTICIABLE CONTROVERSIES.  THE ONLY
EXPRESSION IN THE STATUTE WHICH MIGHT CONCEIVABLY SUPPORT THE COURT IS
THE GENERAL DECLARATION OF THE ACT'S PURPOSE "TO PROVIDE FOR THE PROMPT
AND ORDERLY SETTLEMENT OF ALL DISPUTES GROWING OUT OF GRIEVANCES OR OUT
OF THE INTERPRETATION OR APPLICATION OF AGREEMENTS COVERING RATES OF
PAY, RULES, OR WORKING CONDITIONS."  FN4  BUT THIS EXPRESSION IS AS
CONSISTENT WITH AN INTENTION TO PROVIDE AN ALTERNATIVE FORUM AS TO
PROVIDE AN EXCLUSIVE ONE.  EXPERIENCE HAS NOT DEMONSTRATED THAT THE
SETTLEMENT OF GRIEVANCES HAS BEEN ANY THE LESS PROMPT AND ORDERLY IN
THE COURTS THAN IT HAS BEEN IN THE BOARD.  FN5 

NEITHER THE ACT NOR OUR PRECEDENTS SUPPORT THE COURT'S RULING.  IN
THE SECTION WHICH CONFERRED JURISDICTION ON THE BOARD, SEC. 3 FIRST
(I), CONGRESS PROVIDED THAT DISPUTES "SHALL" BE FIRST HANDLED BY
NEGOTIATIONS BETWEEN THE PARTIES AND ON THEIR FAILURE "MAY BE REFERRED
BY PETITION OF THE PARTIES OR BY EITHER PARTY TO THE APPROPRIATE
DIVISION OF THE ADJUSTMENT BOARD  ...  "  FN6 THE USE OF "MAY" AND
"SHALL" IN THE 1934 RAILWAY LABOR ACT MAY NOT BE DECISIVE, BUT I FAIL
TO SEE HOW IT CAN NOW BE DISREGARDED COMPLETELY, WHEN AT THE TIME OF
MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630, THE USE OF "MAY" SEEMED
AN INDICATION OF CONGRESSIONAL PURPOSE SUFFICIENT TO FURNISH A GROUND
FOR HOLDING THAT COURTS HAD CONCURRENT PRIMARY JURISDICTION.  FN7 

THE RULING IN TEXAS & PAC. R. CO. V. ABILENE COTTON OIL CO., 204 U.S.
426, DOES NOT SUPPORT TODAY'S DECISION.  IN THAT CASE THIS COURT HELD
REPUGNANT TO THE INTERSTATE COMMERCE ACT A SUIT IN A STATE COURT TO
RECOVER UNREASONABLE CARRIER CHARGES.  THE ACT HAD GIVEN THE COMMISSION
POWER TO DETERMINE THE REASONABLENESS OF RATES FILED AND PUBLISHED
UNDER ITS PROVISIONS.  IT ALSO PROHIBITED EXPLICITLY PREFERENCES AND
DISCRIMINATIONS IN FAVOR OF SHIPPERS.  THE COURT HELD THAT, IF A
SHIPPER COULD RECOVER IN THE COURTS PART OF A TARIFF CHARGE, HE WOULD
RECEIVE A DISCRIMINATORY PREFERENCE.  SINCE THIS WOULD BE WHOLLY
INCONSISTENT WITH THE INTERSTATE COMMERCE ACT, STATE COURTS WERE
WITHOUT JURISDICTION TO ENTERTAIN SUITS FOR THE RECOVERY OF
UNREASONABLE CHARGES.  FN8  BY NECESSARY INFERENCE THE COMMISSION WAS
FOUND TO HAVE THE SOLE POWER TO ENTERTAIN ORIGINALLY PROCEEDINGS WHICH
MIGHT RESULT IN THE ALTERATION OF AN ESTABLISHED SCHEDULE.  BUT THE
COURT WAS CAREFUL TO SAY THAT A STATUTE WAS NOT TO BE CONSTRUED AS
TAKING AWAY A COMMON-LAW RIGHT UNLESS IT WERE FOUND THAT IT WAS "SO
REPUGNANT TO THE STATUTE THAT THE SURVIVAL OF SUCH RIGHT WOULD IN
EFFECT DEPRIVE THE SUBSEQUENT STATUTE OF ITS EFFICACY."  FN9  THE
RAILWAY LABOR ACT HAS NO RULE OF LAW, SIMILAR TO THAT AGAINST
PREFERENCES, THAT WOULD BE CONTROVERTED IF DIFFERENT COURTS IN
DIFFERENT STATES SHOULD CONSTRUE IDENTICAL COLLECTIVE-BARGAINING
AGREEMENTS DIFFERENTLY.  IF, TO PRESERVE UNIFORMITY IN THE RULINGS OF
THE BOARD, IT WERE NECESSARY THAT IT HAVE EXCLUSIVE PRIMARY
JURISDICTION OVER GRIEVANCE DISPUTES, CONGRESS WOULD HARDLY HAVE
PROVIDED, AS IT DID, THAT CARRIERS AND RAILROADS BY AGREEMENT MIGHT SET
UP SYSTEM AND REGIONAL BOARDS INDEPENDENT OF THE NATIONAL BOARD.  FN10
THE ABILENE CASE WAS PRESSED BY FOUR DISSENTERS AS CONTROLLING
AUTHORITY TO COMPEL THE CONCLUSION THAT THE BOARD HAD EXCLUSIVE
JURISDICTION IN ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711.  FN11
BUT ON THE TACIT ASSUMPTION THAT COURTS WERE NOT OUSTED OF THEIR
JURISDICTION, WE UPHELD THE RIGHT OF EMPLOYEES TO SUE THE CARRIER
ALTHOUGH THE EMPLOYMENT RELATIONSHIP STILL EXISTED. 

THE CASE BEFORE US IS QUITE DIFFERENT FROM SWITCHMEN'S UNION V.
MEDIATION BOARD, 320 U.S. 297, AND GENERAL COMMITTEE V. M.-K.-T.R. CO.,
320 U.S. 323.  THOSE CONCERNED CONTROVERSIES OF A KIND UNFAMILIAR TO
COURTS, AND THEY INVOLVED THE MEDIATION BOARD, WHICH COULD IMPOSE
SANCTIONS ONLY WHEN THE PARTIES AGREED TO ACCEPT ITS AWARDS.  FN12  WE
HELD THAT THE ISSUES IN THOSE CASES WERE NOT JUSTICIABLE IN THE FEDERAL
COURTS, SINCE THE "CONCEPT OF MEDIATION IS THE ANTITHESIS OF
JUSTICIABILITY."  FN13  HERE, THE CONTROVERSY RELATES TO THE
INTERPRETATION OF CONTRACTS, A FUNCTION COURTS HAVE ALWAYS PERFORMED,
AND "IT IS NOT TO BE LIGHTLY ASSUMED THAT THE SILENCE OF THE STATUTE
BARS FROM THE COURTS AN OTHERWISE JUSTICIABLE ISSUE."  FN14 

NOR DID ORDER OF RAILWAY CONDUCTORS V. PITNEY, 326 U.S. 561,
DETERMINE THE PRESENT JURISDICTIONAL ISSUE.  IN A FEDERAL BANKRUPTCY
COURT HANDLING A RAILROAD REORGANIZATION, AN INTERPRETATION OF A
COLLECTIVE-BARGAINING AGREEMENT WAS SOUGHT.  WE DECLARED THAT THE
FEDERAL EQUITY COURT SHOULD "EXERCISE EQUITABLE DISCRETION TO GIVE (THE
NATIONAL RAILROAD ADJUSTMENT BOARD) THE FIRST OPPORTUNITY TO PASS ON
THE ISSUE."  FN15  THUS WE DETERMINED ONLY THAT UNDER THE CIRCUMSTANCES
OF THAT CASE THE DISTRICT COURT, AS A MATTER OF DISCRETION, SHOULD HAVE
REMANDED TO THE BOARD A CONTROVERSY OVER THE MEANING OF THE COLLECTIVE
BARGAINING AGREEMENT, AND AT THE SAME TIME SHOULD HAVE RETAINED
JURISDICTION TO APPLY THE BOARD'S INTERPRETATION TO THE CONTROVERSY. 
THERE WAS NO INTIMATION THAT THE OBLIGATION TO SEND THE CONTROVERSY TO
THE BOARD WAS ANY MORE UNIVERSAL THAN THE OBLIGATION OF AN EQUITY COURT
TO SOMETIMES REMIT PARTIES TO THE STATE COURTS FOR A PRELIMINARY
DECISION ON STATE LAW.  FN16  THERE WAS NO RULING THAT CONGRESS HAD
DEPRIVED THE DISTRICT COURT OF JURISDICTION.  TODAY THE COURT IS
COMPELLED TO EXTEND THE PITNEY PRECEDENT FROM "DISCRETION" TO
"JURISDICTION" BECAUSE FEDERAL COURTS LACK POWER TO ORDER STATE COURTS
TO EXERCISE IN A PARTICULAR MANNER THEIR EQUITABLE DISCRETION.  BUT THE
COURT'S INABILITY TO SECURE A FLEXIBLE RULE DOES NOT WARRANT THE COURT
TO IMPOSE ON THE STATE COURTS A RIGID ONE. 

CONGRESS SURELY WOULD NOT HAVE GRANTED THIS EXCLUSIVE PRIMARY POWER
TO ADJUDICATE CONTRACTS TO A BODY LIKE THE BOARD.  IT CONSISTS OF
PEOPLE CHOSEN AND PAID, NOT BY THE GOVERNMENT, BUT BY GROUPS OF
CARRIERS AND THE LARGE NATIONAL UNIONS.  FN17  CONGRESS HAS FURNISHED
FEW PROCEDURAL SAFEGUARDS.  THERE IS NO PROCESS FOR COMPELLING THE
ATTENDANCE OF WITNESSES OR THE PRODUCTION OF EVIDENCE.  THERE IS NO
OFFICIAL RECORD, OTHER THAN THAT OF THE INFORMAL PLEADINGS.  HEARINGS
ARE CONDUCTED WITHOUT WITNESSES.  FN18  THE BOARD HAS OPERATED WITHOUT
GIVING INDIVIDUALS A CHANCE TO BE HEARD UNLESS THEY WERE REPRESENTED BY
UNIONS.  FN19 

THROUGHOUT THIS OPINION I HAVE ASSUMED THAT THE COURT MEANS ONLY TO
IMPOSE A REQUIREMENT OF PRIMARY RECOURSE TO THE BOARD.  BUT THAT
INEVITABLY MEANS MANY LITIGANTS WOULD BE DEPRIVED OF ACCESS TO THE
COURTS.  THE EXTENT OF JUDICIAL REVIEW OF AWARDS OTHER THAN MONEY
AWARDS IS DOUBTFUL, AND IT IS HIGHLY QUESTIONABLE WHETHER EVEN A MONEY
AWARD CAN BE REVIEWED IN THE COURTS IF ONLY THE CARRIER WISHES REVIEW. 
FN20  MOST IMPORTANT, THE STATUTE PROVIDES NO RELIEF FOR A PETITIONING
PARTY - BE HE UNION, INDIVIDUAL OR CARRIER - AGAINST AN ERRONEOUS ORDER
OF THE BOARD.  FN21  THIS COURT MAY BE HARD PUT TO PROTECT THE RIGHTS
OF MINORITIES UNDER THESE CIRCUMSTANCES.  FN22 

NEVERTHELESS THE COURT SAYS THAT CONGRESS HAS FORCED THE PARTIES INTO
A FORUM THAT HAS FEW OF THE ATTRIBUTES OF A COURT, BUT WHICH MAY BE THE
FINAL JUDGE OF THE RIGHTS OF INDIVIDUALS.  OUR DUTY AS A COURT DOES NOT
EXTEND TO A DETERMINATION OF THE WISDOM OF PUTTING A SOLUTION OF
INDUSTRY PROBLEMS INTO THE HANDS OF INDUSTRY AGENCIES SO FAR AS THE
CONSTITUTION WILL PERMIT.  FN23  SOME MAY DEEM IT DESIRABLE TO WELD
VARIOUS INDUSTRIES OR PROFESSIONS INTO SELF-GOVERNING FORMS, COMPLETELY
FREE FROM JUDICIAL INTERVENTION.  THIS DESIRE MAY SPRING FROM A
CONVICTION THAT EXPERIENCE AND TRAINING IN HIGHLY SPECIALIZED FIELDS
GIVE THE MEMBERS OF A GROUP THAT UNDERSTANDING AND CAPACITY WHICH WILL
ENABLE THEM TO GOVERN THEIR INTERNAL AFFAIRS BETTER THAN WOULD COURTS
DEALING WITH THE GENERALITY OF HUMAN RELATIONS AND ONLY OCCASIONALLY
WITH THESE SPECIALIZED CONTROVERSIES.  CONGRESS, HOWEVER, HAS NEVER
COMPLETELY SO ISOLATED AN INDUSTRY FROM THE REST OF THE NATION.  THERE
IS TOO MUCH INTERRELATION AND INTERDEPENDENCE BETWEEN SUCH GROUPS AND
THE REST OF THE POPULATION.  IN SOME INSTANCES THE CONGRESS HAS GIVEN
GREAT SWEEP TO AGENCIES IN SOME FIELDS.  EVEN SPECIAL COURTS HAVE BEEN
CREATED, SUCH AS THE COURT OF CUSTOMS AND PATENT APPEALS.  WHEN
CONGRESS HAS CREATED THESE ADMINISTRATIVE AGENCIES AND SPECIAL COURTS,
IT HAS CAREFULLY OUTLINED THEIR POWERS, PROVIDED STATED PROTECTIONS FOR
INDIVIDUAL RIGHTS, AND HAS FURNISHED NEUTRAL OFFICIALS.  BUT HERE,
ALTHOUGH NONE OF THESE PROTECTIONS HAVE BEEN PROVIDED, THE COURT FINDS
AN UNDERLYING PURPOSE IN CONGRESS TO ABOLISH, WITHOUT DISCUSSION,
JUDICIAL JURISDICTION. 

WHEN AN ADMINISTRATIVE BODY VARIES SO MARKEDLY FROM THE KIND WHICH
EXPERIENCE HAS SHOWN MAY SAFELY BE GIVEN FINAL POWER OVER PEOPLE'S
RIGHTS, IT SHOULD NOT BE ASSUMED THAT CONGRESS INTENDED THE PRIMARY
JURISDICTION OF THE BOARD TO BE EXCLUSIVE.  A MORE DEFINITE EXPRESSION
IS REQUIRED.  THE DECISION OF THE COURT PLACES IT IN A DILEMMA OF ITS
OWN CREATION - IT MUST IN THE FUTURE BUILD UP A COMPLEX SYSTEM OF
REVIEW, OR IT MUST SAY THAT CONGRESS INTENDED TO LEAVE THE RIGHTS OF
MANY INDIVIDUALS AND ORGANIZATIONS TO THE UNREVIEWABLE DISCRETION OF A
PRIVATELY SELECTED BOARD.  BY GIVING EFFECT TO THE PLAIN WORDS OF THE
STATUTE WHICH CONFER ON THE BOARD A JURISDICTION ONLY CONCURRENT WITH
THE COURTS, WE SHOULD AVOID THE NECESSITY FOR JUDICIAL LEGISLATION IN
UNEXPLORED AREAS OF THE LAW.  IF UNSEEMLY RESULTS SHOULD FOLLOW, THE
LEGISLATIVE BODY WOULD HAVE THE FACILITIES TO UNDERTAKE THE IMPORTANT
AND EXTENSIVE TASK OF DECIDING WHAT SHOULD BE THE PROPER DISTRIBUTION
OF AUTHORITY BETWEEN COURTS AND ADMINISTRATIVE BODIES IN CONNECTION
WITH RAILROAD LABOR RELATIONS.  COURTS SHOULD AWAIT SPECIFIC
LEGISLATIVE DIRECTION INSTEAD OF READING INTO A STATUTE A PURPOSE TO
TRANSFER JURISDICTION FROM STATE COURTS TO A FEDERAL BOARD. 

FN1  THE SECTIONS OF THE STATUTE WHICH BEAR ON APPEALABILITY ARE 48
STAT. 1191, SEC. 3 FIRST (M) AND (P).  SEE ELGIN, J. & E.R. CO. V.
BURLEY, 325 U.S. 711, DISSENT, 761. 

FN2  DELAWARE, L. & W.R. CO. V. SLOCUM, 299 N.Y. 496, 87 N.E.2D 532;
SOUTHERN R. CO. V. ORDER OF RAILWAY CONDUCTORS, 210 S.C. 121, 41 S.E.2D
774.  SEE ALSO ADAMS V. NEW YORK, C. & ST. L.R. CO., 121 F.2D 808. 

FN3  CF. UNITED STATES V. BANK OF NEW YORK CO., 296 U.S. 463, 479;
SEE CLAFLIN V. HOUSEMAN, 93 U.S. 130, 136. 

FN4  48 STAT. 1187, SEC. 2(5). 

FN5  SEE FIFTEENTH ANNUAL REPORT OF THE NATIONAL MEDIATION BOARD, P.
12; MONOGRAPH OF THE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE
PROCEDURE, PART 4, RAILWAY LABOR, P. 16, S. DOC. NO. 10, 77TH CONG.,
1ST SESS. (1941). 

FN6  48 STAT. 1191, SEC. 3 FIRST (I): 

"(I)  THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A
CARRIER OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY,
RULES, OR WORKING CONDITIONS, INCLUDING CASES PENDING AND UNADJUSTED ON
THE DATE OF APPROVAL OF THIS ACT, SHALL BE HANDLED IN THE USUAL MANNER
UP TO AND INCLUDING THE CHIEF OPERATING OFFICER OF THE CARRIER
DESIGNATED TO HANDLE SUCH DISPUTES; BUT, FAILING TO REACH AN ADJUSTMENT
IN THIS MANNER, THE DISPUTES MAY BE REFERRED BY PETITION OF THE PARTIES
OR BY EITHER PARTY TO THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD
WITH A FULL STATEMENT OF THE FACTS AND ALL SUPPORTING DATA BEARING UPON
THE DISPUTES." 

FN7  312 U.S. 630, 635-36:  "IT IS TO BE NOTED THAT THE SECTION
POINTED OUT, SEC. 153(I), AS AMENDED IN 1934, PROVIDES NO MORE THAN
THAT DISPUTES 'MAY BE REFERRED  ...  TO THE  ... ADJUSTMENT BOARD  ...
'  IT IS SIGNIFICANT THAT THE COMPARABLE SECTION OF THE 1926 RAILWAY
LABOR ACT (44 STAT. 577, 578) HAD, BEFORE THE 1934 AMENDMENT, PROVIDED
THAT UPON FAILURE OF THE PARTIES TO REACH AN ADJUSTMENT A 'DISPUTE
SHALL BE REFERRED TO THE DESIGNATED ADJUSTMENT BOARD BY THE PARTIES, OR
BY EITHER PARTY  ...  '  THIS DIFFERENCE IN LANGUAGE, SUBSTITUTING
'MAY' FOR 'SHALL,' WAS NOT, WE THINK, AN INDICATION OF A CHANGE IN
POLICY, BUT WAS INSTEAD A CLARIFICATION OF THE LAW'S ORIGINAL PURPOSE. 
FOR NEITHER THE ORIGINAL 1926 ACT, NOR THE ACT AS AMENDED IN 1934,
INDICATES THAT THE MACHINERY PROVIDED FOR SETTLING DISPUTES WAS BASED
ON A PHILOSOPHY OF LEGAL COMPULSION.  ON THE CONTRARY, THE LEGISLATIVE
HISTORY OF THE RAILWAY LABOR ACT SHOWS A CONSISTENT PURPOSE ON THE PART
OF CONGRESS TO ESTABLISH AND MAINTAIN A SYSTEM FOR PEACEFUL ADJUSTMENT
AND MEDIATION VOLUNTARY IN ITS NATURE." 

FN8  204 U.S. 426, 440-41:  "FOR IF, WITHOUT PREVIOUS ACTION BY THE
COMMISSION, POWER MIGHT BE EXERTED BY COURTS AND JURIES GENERALLY TO
DETERMINE THE REASONABLENESS OF AN ESTABLISHED RATE, IT WOULD FOLLOW
THAT UNLESS ALL COURTS REACHED AN IDENTICAL CONCLUSION A UNIFORM
STANDARD OF RATES IN THE FUTURE WOULD BE IMPOSSIBLE, AS THE STANDARD
WOULD FLUCTUATE AND VARY, DEPENDENT UPON THE DIVERGENT CONCLUSIONS
REACHED AS TO REASONABLENESS BY THE VARIOUS COURTS CALLED UPON TO
CONSIDER THE SUBJECT AS AN ORIGINAL QUESTION.  INDEED THE RECOGNITION
OF SUCH A RIGHT IS WHOLLY INCONSISTENT WITH THE ADMINISTRATIVE POWER
CONFERRED UPON THE COMMISSION AND WITH THE DUTY, WHICH THE STATUTE
CASTS UPON THAT BODY, OF SEEING TO IT THAT THE STATUTORY REQUIREMENT AS
TO UNIFORMITY AND EQUALITY OF RATES IS OBSERVED."    FN9  204 U.S. 426,
436-37:  "AS THE RIGHT TO RECOVER, WHICH THE COURT BELOW SUSTAINED, WAS
CLEARLY WITHIN THE PRINCIPLES JUST STATED, AND AS IT IS CONCEDED THAT
THE ACT TO REGULATE COMMERCE DID NOT IN SO MANY WORDS ABROGATE SUCH
RIGHT, IT FOLLOWS THAT THE CONTENTION THAT THE RIGHT WAS TAKEN AWAY BY
THE ACT TO REGULATE COMMERCE RESTS UPON THE PROPOSITION THAT SUCH
RESULT WAS ACCOMPLISHED BY IMPLICATION.  IN TESTING THE CORRECTNESS OF
THIS PROPOSITION WE CONCEDE THAT WE MUST BE GUIDED BY THE PRINCIPLE
THAT REPEALS BY IMPLICATION ARE NOT FAVORED, AND INDEED THAT A STATUTE
WILL NOT BE CONSTRUED AS TAKING AWAY A COMMON LAW RIGHT EXISTING AT THE
DATE OF ITS ENACTMENT, UNLESS THAT RESULT IS IMPERATIVELY REQUIRED;
THAT IS TO SAY, UNLESS IT BE FOUND THAT THE PREEXISTING RIGHT IS SO
REPUGNANT TO THE STATUTE THAT THE SURVIVAL OF SUCH RIGHT WOULD IN
EFFECT DEPRIVE THE SUBSEQUENT STATUTE OF ITS EFFICACY; IN OTHER WORDS,
RENDER ITS PROVISIONS NUGATORY." 

FN10  48 STAT. 1193, SEC. 3 SECOND. 

FN11  325 U.S. 711, DISSENT, 759.  THE DISSENTERS INSISTED, P. 760:
"THE CONSIDERATIONS MAKING FOR HARMONIOUS ADJUSTMENT OF RAILROAD
INDUSTRIAL RELATIONS THROUGH THE MACHINERY DESIGNED BY CONGRESS IN THE
RAILWAY LABOR ACT ARE DISREGARDED BY ALLOWING THAT MACHINERY TO BE BY
PASSED AND BY INTRODUCING DISLOCATING DIFFERENTIATIONS THROUGH
INDIVIDUAL RESORT TO THE COURTS IN THE APPLICATION OF A COLLECTIVE
AGREEMENT." 

FN12  48 STAT. 1195, SEC. 5 FIRST; 44 STAT. 584, SEC. 8. 

FN13  GENERAL COMMITTEE V. M.-K.-T.R. CO., 320 U.S. 323, 337.  NOT
LONG AFTER THESE DECISIONS WERE HANDED DOWN WE EXPLAINED THEM AS
FOLLOWS:  "THIS RESULT WAS REACHED BECAUSE OF THIS COURT'S VIEW THAT
JURISDICTIONAL DISPUTES BETWEEN UNIONS WERE LEFT BY CONGRESS TO
MEDIATION RATHER THAN ADJUDICATION.  320 U.S. 302 AND 337.  THAT IS TO
SAY, NO PERSONAL RIGHT OF EMPLOYEES, ENFORCIBLE IN THE COURTS, WAS
CREATED IN THE PARTICULAR INSTANCES UNDER CONSIDERATION.  320 U.S.
337.  BUT WHERE RIGHTS OF COLLECTIVE BARGAINING, CREATED BY THE SAME
RAILWAY LABOR ACT, CONTAINED DEFINITE PROHIBITIONS OF CONDUCT OR WERE
MANDATORY IN FORM, THIS COURT ENFORCED THE RIGHTS JUDICIALLY.  320 U.S.
330, 331.  CF. TEXAS & N.O.R. CO. V. BROTHERHOOD OF CLERKS, 281 U.S.
548; VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515."  STARK V.
WICKARD, 321 U.S. 288, 306-307.  SEE STEELE V. LOUISVILLE & N.R. CO.,
323 U.S. 192, 207. 

FN14  STARK V. WICKARD, 321 U.S. 288, 309. 

FN15  ORDER OF RAILWAY CONDUCTORS V. PITNEY, 326 U.S. 561, 567. 

FN16  IBID.; CF. PROPPER V. CLARK, 337 U.S. 472; MEREDITH V. WINTER
HAVEN, 320 U.S. 228. 

FN17  48 STAT. 1189, SEC. 3 FIRST (A)(B)(C)(G). 

FN18  MONOGRAPH, N. 5, SUPRA, PP. 11-14; SEE GARRISON, NATIONAL
RAILROAD ADJUSTMENT BOARD, 46 YALE L.J. 567, 576 ET SEQ. 

FN19  MONOGRAPH, N. 5, SUPRA, P. 7. 

FN20  SEE WASHINGTON TERMINAL CO. V. BOSWELL, 75 U.S. APP. D.C. 1,
12, 124 F.2D 235, 246; AFFIRMED BY AN EQUALLY DIVIDED COURT, 319 U.S.
732. 

FN21  48 STAT. 1191, SEC. 3 FIRST (M) AND (P).  GARRISON, NATIONAL
RAILROAD ADJUSTMENT BOARD, 46 YALE L.J. 567, 591. 

FN22  SEE TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN, 323 U.S. 210;
STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192, 206.  COMPARE HOWARD V.
THOMPSON, 72 F.SUPP.  695; STATE EX REL. ST. LOUIS-S. F.R. CO. V.
RUSSELL, 358 MO. 1136, 219 S.W.2D 340; EDWARDS V. CAPITAL AIRLINES, 84
U.S. APP. D.C. 346, 350, 176 F.2D 755, 759 ET SEQ. CF. SHIELDS V. UTAH
IDAHO R. CO., 305 U.S. 177. 

FN23  SEE MURRAY'S LESSEE V. HOBOKEN LAND & IMPROVEMENT CO., 18 HOW. 
272, 284; NG FUNG HO V. WHITE, 259 U.S. 276. 
..END :











ORDER OF CONDUCTORS V. SO. R. CO., 339 U.S. 255 


NO. 438.  ARGUED FEBRUARY 8-9, 1950.  - DECIDED APRIL 10, 1950.  - 215
S.C. 280, 54 S.E.2D 816, REVERSED. 


A DISPUTE AROSE BETWEEN A RAILROAD AND A LABOR UNION AS TO THE
RAILROAD'S OBLIGATION UNDER THEIR COLLECTIVE-BARGAINING AGREEMENT TO
GIVE CONDUCTORS EXTRA PAY FOR CERTAIN SERVICES.  THE RAILROAD REFUSED
THE DEMAND OF THE UNION AND COMMENCED A DECLARATORY JUDGMENT ACTION IN
A STATE COURT.  THE UNION THEREAFTER FILED A PETITION FOR HEARING AND
AWARD BEFORE THE ADJUSTMENT BOARD UNDER THE RAILWAY LABOR ACT.  HELD:
THE STATE COURT WAS WITHOUT POWER TO INTERPRET THE TERMS OF THE
AGREEMENT AND ADJUDICATE THE DISPUTE.  SLOCUM V. DELAWARE, L. & W.R.
CO., ANTE, P. 239.  PP. 255-257. 

ORDER OF RAILWAY CONDUCTORS OF AMERICA V. SOUTHERN RAILWAY CO. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

IN A DECLARATORY JUDGMENT ACTION BROUGHT BY A RAILROAD AGAINST A
LABOR UNION, FOR ADJUDICATION OF A DISPUTE ARISING OUT OF A COLLECTIVE
BARGAINING AGREEMENT BETWEEN THEM, A STATE COURT INTERPRETED THE
AGREEMENT AND ENTERED A DECLARATORY JUDGMENT.  THE STATE SUPREME COURT
AFFIRMED.  215 S.C. 280, 54 S.E.2D 816.  THIS COURT GRANTED
CERTIORARI.  338 U.S. 899.  REVERSED AND REMANDED, P. 257. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES THE SAME STATUTORY QUESTION AS SLOCUM V. DELAWARE,
L. & W.R. CO., ANTE, P. 239.  THE PETITIONER, ORDER OF RAILWAY
CONDUCTORS, IS THE ONLY ACCREDITED BARGAINING REPRESENTATIVE OF
CONDUCTORS EMPLOYED BY THE RESPONDENT SOUTHERN RAILWAY.  A DISPUTE
AROSE BETWEEN CERTAIN CONDUCTORS AND THE RAILROAD CONCERNING THE
RAILROAD'S OBLIGATION UNDER THE COLLECTIVE-BARGAINING AGREEMENT TO GIVE
CONDUCTORS EXTRA PAY FOR CERTAIN SERVICES.  THE CLAIMS OF THE
CONDUCTORS WERE REFERRED TO THE UNION, WHICH SOUGHT BY NEGOTIATION TO
PERSUADE THE RAILROAD TO PAY.  THE RAILROAD REFUSED, AND THEREAFTER
PRAYED A SOUTH CAROLINA STATE COURT FOR A DECLARATORY JUDGMENT
INTERPRETING THE AGREEMENT AS NOT REQUIRING THE CLAIMED PAYMENTS.  THE
TRIAL COURT FIRST REFUSED TO EXERCISE JURISDICTION.  CITING ORDER OF
CONDUCTORS V. PITNEY, 326 U.S. 561, IT HELD THAT STATE COURTS, LIKE
FEDERAL COURTS, SHOULD LEAVE SETTLEMENT OF SUCH DISPUTES TO THE
NATIONAL RAILROAD ADJUSTMENT BOARD.  THE STATE SUPREME COURT REVERSED,
HOLDING THAT THE STATE COURT DID HAVE POWER TO INTERPRET THE BARGAINING
AGREEMENT AND ADJUDICATE THE DISPUTE.  210 S.C. 121, 41 S.E.2D 774. 
AFTER A LENGTHY TRIAL THE LOWER COURT HELD THAT THE COLLECTIVE
AGREEMENT DID NOT REQUIRE THE COMPENSATION SOUGHT BY THE CONDUCTORS AND
ENTERED THE DECLARATORY JUDGMENT REQUESTED.  THE SUPREME COURT
AFFIRMED.  215 S.C. 280, 54 S.E.2D 816. 

FOR REASONS SET OUT IN THE SLOCUM CASE, ANTE, P. 239, WE HOLD THAT
THE SOUTH CAROLINA STATE COURT WAS WITHOUT POWER TO INTERPRET THE TERMS
OF THIS AGREEMENT AND ADJUDICATE THE DISPUTE.  WE DISCUSS THIS CASE
SEPARATELY BECAUSE IT SHARPLY POINTS UP THE CONFLICTS THAT COULD ARISE
FROM STATE COURT INTERVENTION IN RAILROAD-UNION DISPUTES.  AFTER THE
RAILROAD HAD SUED IN THE STATE COURT, THE UNION FILED A PETITION FOR
HEARING AND AWARD BEFORE THE ADJUSTMENT BOARD.  THE STATE COURT
NEVERTHELESS PROCEEDED TO ADJUDICATE THE DISPUTE.  SUSTAINING THE STATE
COURT'S ACTION WOULD INVITE RACES OF DILIGENCE WHENEVER A CARRIER OR
UNION PREFERRED ONE FORUM TO THE OTHER.  AND IF A CARRIER OR A UNION
COULD CHOOSE A COURT INSTEAD OF THE BOARD, THE OTHER PARTY WOULD BE
DEPRIVED OF THE PRIVILEGE CONFERRED BY SEC. 3 FIRST (I) OF THE RAILWAY
LABOR ACT, 48 STAT. 1191, 45 U.S.C. SEC. 153 FIRST (I), WHICH PROVIDES
THAT AFTER NEGOTIATIONS HAVE FAILED "EITHER PARTY" MAY REFER THE
DISPUTE TO THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD. 

THE JUDGMENT OF THE SOUTH CAROLINA SUPREME COURT IS REVERSED, AND THE
CAUSE IS REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
IT IS SO ORDERED. 

MR. JUSTICE REED IS OF THE VIEW THAT THE DECISION BELOW SHOULD BE
AFFIRMED FOR THE REASONS SET OUT IN HIS DISSENT IN SLOCUM V. DELAWARE,
L. & W.R. CO., ANTE, P. 245. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















MORFORD V. UNITED STATES, 339 U.S. 258 


NO. 236.  DECIDED APRIL 10, 1950.  - 85 U.S. APP. D.C. 172, 176 F.2D 54,
REVERSED. 


PETITIONER, WHO IS EXECUTIVE DIRECTOR OF THE NATIONAL COUNCIL OF
AMERICAN-SOVIET FRIENDSHIP, INC., WAS CONVICTED IN THE DISTRICT OF
COLUMBIA OF VIOLATING R.S. SEC. 102, 2 U.S.C. SEC. 192, BY WILLFULLY
REFUSING TO PRODUCE CERTAIN DOCUMENTS BEFORE THE COMMITTEE ON UN
AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES IN COMPLIANCE WITH
A SUBPOENA DULY SERVED UPON HIM.  ON VOIR DIRE EXAMINATION, COUNSEL FOR
PETITIONER WAS NOT PERMITTED TO QUESTION GOVERNMENT EMPLOYEES ON THE
JURY PANEL WITH SPECIFIC REFERENCE TO THE POSSIBLE INFLUENCE OF
EXECUTIVE ORDER 9835, THE SO-CALLED "LOYALTY ORDER," ON THEIR ABILITY
TO RENDER A JUST AND IMPARTIAL VERDICT; AND FOUR GOVERNMENT EMPLOYEES
WERE PERMITTED TO SERVE ON THE JURY OVER HIS OBJECTION.  HELD:  THE
CONVICTION IS REVERSED BECAUSE OF THIS DENIAL OF AN OPPORTUNITY TO
PROVE ACTUAL BIAS ON THE PART OF THE GOVERNMENT EMPLOYEES WHO SERVED ON
THE JURY.  P. 259. 

MORFORD V. UNITED STATES. 

ON PETITION FOR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT. 

PETITIONER, WHO IS EXECUTIVE DIRECTOR OF THE NATIONAL COUNCIL OF
AMERICAN-SOVIET FRIENDSHIP, INC., WAS INDICTED IN THE DISTRICT OF
COLUMBIA FOR VIOLATING R.S. SEC. 102, 2 U.S.C. SEC. 192, BY WILLFULLY
REFUSING TO PRODUCE CERTAIN DOCUMENTS BEFORE THE COMMITTEE ON UN
AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES IN COMPLIANCE WITH
THE SUBPOENA DULY SERVED UPON HIM.  FOUR GOVERNMENT EMPLOYEES SERVED ON
THE JURY OVER HIS OBJECTION, AND HE WAS CONVICTED.  THE COURT OF
APPEALS AFFIRMED.  85 U.S. APP. D.C. 172, 176 F.2D 54.  CERTIORARI
GRANTED AND CONVICTION REVERSED, P. 259. 

PER CURIAM. 

IN THIS CASE THE TRIAL COURT DID NOT PERMIT COUNSEL FOR PETITIONER TO
INTERROGATE PROSPECTIVE GOVERNMENT EMPLOYEE JURORS UPON VOIR DIRE
EXAMINATION WITH SPECIFIC REFERENCE TO THE POSSIBLE INFLUENCE OF THE
"LOYALTY ORDER," EXECUTIVE ORDER NO. 9835, ON THEIR ABILITY TO RENDER A
JUST AND IMPARTIAL VERDICT.  SUCH QUESTIONING WAS PERMITTED IN DENNIS
V. UNITED STATES, ANTE, P. 162; SEE N. 4 OF THE COURT'S OPINION, ANTE,
PP. 170-171. 

WE SAID IN DENNIS THAT "PRESERVATION OF THE OPPORTUNITY TO PROVE
ACTUAL BIAS IS A GUARANTEE OF A DEFENDANT'S RIGHT TO AN IMPARTIAL
JURY."  ANTE, PP. 171-172.  SINCE THAT OPPORTUNITY WAS DENIED IN THIS
CASE, THE PETITION FOR WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT
OF THE COURT OF APPEALS IS REVERSED.  REVERSED. 

MR. JUSTICE BLACK AND MR. JUSTICE FRANKFURTER CONCUR IN THE REVERSAL
FOR THE REASONS EXPRESSED IN THEIR OPINIONS IN DENNIS V. UNITED STATES,
ANTE, P. 162. 

MR. JUSTICE DOUGLAS CONCURS IN THE REVERSAL OF THE JUDGMENT.  SINCE,
HOWEVER, COUNSEL REQUESTED THAT ALL GOVERNMENT EMPLOYEES BE EXCLUDED
FROM THE JURY IN THESE CASES, HE THINKS THE REQUEST SHOULD HAVE BEEN
GRANTED FOR THE REASONS STATED BY THE DISSENTING JUSTICES IN FRAZIER V.
UNITED STATES, 335 U.S. 497, AND IN DENNIS V. UNITED STATES, ANTE, P.
162. 

MR. JUSTICE CLARK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









DARR V. BURFORD, 339 U.S. 200 


NO. 51.  SUBMITTED DECEMBER 5, 1949.  - DECIDED APRIL 3, 1950.  - 172
F.2D 668, AFFIRMED. 


PETITIONER, A STATE PRISONER, APPLIED TO A FEDERAL DISTRICT COURT FOR
HABEAS CORPUS WITHOUT PETITIONING THIS COURT FOR CERTIORARI FROM A
DENIAL OF HABEAS CORPUS ON THE MERITS BY THE HIGHEST STATE COURT OR
EXCUSING HIS FAILURE TO DO SO.  LIMITING ITS CONSIDERATION OF THE
APPLICATION SOLELY TO THE QUESTION WHETHER IT PRESENTED AN
EXTRAORDINARY INSTANCE THAT CALLED FOR DISREGARD OF ACCUSTOMED
PROCEDURE OF PETITIONING THIS COURT FOR CERTIORARI, THE DISTRICT COURT
FOUND THAT NOTHING EXTRAORDINARY APPEARED AND DISCHARGED THE WRIT. 
HELD:  THE DISTRICT COURT PROPERLY REFUSED TO EXAMINE FURTHER INTO THE
MERITS OF THE PETITION AND PROPERLY DISCHARGED THE WRIT.  PP. 201-219. 

(A)  ORDINARILY AN APPLICATION FOR HABEAS CORPUS BY ONE DETAINED
UNDER A STATE COURT JUDGMENT OF CONVICTION FOR CRIME WILL BE
ENTERTAINED BY A FEDERAL DISTRICT COURT ONLY AFTER ALL STATE REMEDIES
AVAILABLE, INCLUDING ALL APPELLATE REMEDIES IN THE STATE COURTS, HAVE
BEEN EXHAUSTED AND REVIEW HAS BEEN DENIED BY THIS COURT.  EX PARTE
HAWK, 321 U.S. 114.  PP. 203-208. 

(B)  WHATEVER DEVIATION FROM THE ESTABLISHED RULE MAY BE INFERRED
FROM OR IMPLIED BY WADE V. MAYO, 334 U.S. 672, IS CORRECTED BY THIS
DECISION.  PP. 208-210. 

(C)  IN SEC. 2254 OF THE 1948 RECODIFICATION OF THE JUDICIAL CODE,
CONGRESS ACCEPTED THE RULE OF THE HAWK CASE AS A SOUND RULE TO GUIDE
CONSIDERATION OF HABEAS CORPUS IN FEDERAL COURTS.  PP. 210-214. 

(D)  THOUGH A REFUSAL OF CERTIORARI BY THIS COURT MAY CARRY NO WEIGHT
ON THE MERITS UPON A LATER APPLICATION TO A FEDERAL DISTRICT COURT FOR
HABEAS CORPUS, COMITY ORDINARILY REQUIRES AN APPLICATION FOR REVIEW BY
THIS COURT BEFORE A LOWER FEDERAL COURT MAY BE ASKED TO INTERVENE IN
STATE MATTERS.  PP. 214-217. 

(E)  IN THIS CASE, PETITIONER DID NOT SUSTAIN THE BURDEN OF SHOWING
THAT CIRCUMSTANCES OF PECULIAR URGENCY EXISTED TO REQUIRE PROMPT
FEDERAL INTERVENTION.  P. 219. 

DARR V. BURFORD, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PETITIONER'S APPLICATION FOR HABEAS CORPUS, TO SECURE HIS RELEASE
FROM IMPRISONMENT UNDER A STATE COURT CONVICTION ALLEGEDLY IN VIOLATION
OF THE FEDERAL CONSTITUTION, WAS DENIED BY THE DISTRICT COURT.  77
F.SUPP.  553.  THE COURT OF APPEALS AFFIRMED.  172 F.2D 668.  THIS
COURT GRANTED CERTIORARI.  337 U.S. 923.  AFFIRMED, P. 219. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER DARR, AN INMATE OF THE OKLAHOMA STATE PENITENTIARY, HAS
BEEN DENIED FEDERAL HABEAS CORPUS FOR FAILURE TO EXHAUST HIS OTHER
AVAILABLE REMEDIES.  PETITIONER'S OMISSION TO APPLY HERE FOR CERTIORARI
FROM THE STATE COURT'S DENIAL OF HABEAS CORPUS WAS HELD AN ERROR, FATAL
TO CONSIDERATION ON THE MERITS.  THEREFORE THE MERITS OF PETITIONER'S
CLAIMS OF IMPRISONMENT IN VIOLATION OF THE CONSTITUTION ARE NOT BEFORE
US.  THE PETITION FOR CERTIORARI REQUIRES US TO PASS SOLELY UPON THE
CORRECTNESS OF THE LOWER COURT'S VIEW THAT ORDINARILY A PETITION FOR
CERTIORARI MUST BE MADE TO THIS COURT FROM A STATE COURT'S REFUSAL OF
COLLATERAL RELIEF BEFORE A FEDERAL DISTRICT COURT WILL CONSIDER AN
APPLICATION FOR HABEAS CORPUS ON ITS MERITS. 

PETITIONER WAS SERVING A TERM IN THE OKLAHOMA STATE PENITENTIARY
WHEN, ON NOVEMBER 28, 1930, HE WAS SUMMONED TO APPEAR IN ANOTHER
OKLAHOMA COUNTY TO PLEAD TO TWO SEPARATE CHARGES OF ARMED BANK
ROBBERY.  IN JANUARY OF 1931, HE WAS TRIED BY JURY, AND CONVICTED ON
THE FIRST CHARGE; PETITIONER THEN PLEADED GUILTY TO THE SECOND.  HE WAS
SENTENCED TO TWO TERMS OF FORTY YEARS EACH, TO RUN CONSECUTIVELY, AND
THE FIRST SENTENCE IS NOW BEING SERVED.  NO APPEAL FROM THE CONVICTION
WAS TAKEN, BUT IN 1947 PETITIONER APPLIED TO THE OKLAHOMA COURT OF
CRIMINAL APPEALS FOR HABEAS CORPUS.  JUDGING ONLY FROM THE STATE
COURT'S OPINION,  FN1  FOR THE ORIGINAL PETITION IS NOT INCLUDED IN THE
RECORD BEFORE US, PETITIONER ALLEGED IN THE STATE COURT THAT HE HAD
BEEN WITHOUT FUNDS TO EMPLOY COUNSEL, THAT HE HAD NOT HAD THE AID OF
COUNSEL OF HIS OWN CHOOSING, AND HAD NOT BEEN PROVIDED SUFFICIENT TIME
TO PROCURE AND PREPARE WITNESSES FOR HIS DEFENSE.  THESE ALLEGATIONS
WERE REVIEWED BY THE STATE COURT AND THE WRIT WAS DENIED ON THE
MERITS.  NO APPLICATION FOR CERTIORARI WAS MADE HERE. 

PETITIONER THEN FILED IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA THE APPLICATION FOR HABEAS CORPUS HERE AT
BAR.  THE ALLEGATIONS WERE THOSE PASSED UPON BY THE OKLAHOMA COURT OF
CRIMINAL APPEALS, WITH THE ADDITION OF A CLAIM THAT PETITIONER'S PLEA
OF GUILTY TO THE SECOND ARMED ROBBERY CHARGE HAD BEEN COERCED.  AFTER
HEARING PETITIONER'S TESTIMONY IN OPEN COURT, THE DISTRICT JUDGE
EXAMINED INTO THE MERITS SUFFICIENTLY TO ASSURE HIMSELF THAT NO
EXTRAORDINARY CIRCUMSTANCES EXISTED SUFFICIENT TO JUSTIFY FEDERAL
INQUIRY INTO THE MERITS OF PETITIONER'S ALLEGATIONS WITHOUT THE
EXHAUSTION OF ALL OTHER AVAILABLE REMEDIES.  FN2  HE THEN CONCLUDED
THAT THE WRIT MUST BE DISCHARGED AS TO THE FIRST SENTENCE SINCE
PETITIONER HAD NOT APPLIED FOR CERTIORARI HERE FROM THE STATE COURT'S
DENIAL OF HABEAS CORPUS.  THE ALLEGATIONS OF A COERCED PLEA UNDERLYING
THE SECOND SENTENCE COULD NOT PROPERLY BE CONSIDERED, HELD THE COURT,
FIRST, BECAUSE PETITIONER HAD NOT RAISED THE POINT IN THE STATE
PROCEEDING, AND FURTHER BECAUSE PETITIONER IS NOT PRESENTLY BEING
DETAINED UNDER THAT SENTENCE.  THEREFORE NO ADJUDICATION ON THE MERITS
WAS GIVEN.  FN3  THE COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED,
ONE JUDGE DISSENTING FROM THE PROPOSITION THAT APPLICATION FOR
CERTIORARI IS A REQUISITE STEP IN THE EXHAUSTION OF REMEDY.  FN4 

IT IS NOT ARGUED THAT THE COURTS BELOW STATE THE LAW INCORRECTLY
INSOFAR AS THE SECOND CONVICTION IS CONCERNED.  IT HAS LONG BEEN
SETTLED THAT THE FEDERAL COURTS WILL NOT CONSIDER ON HABEAS CORPUS
CLAIMS WHICH HAVE NOT BEEN RAISED IN THE STATE TRIBUNAL; FN5  AND IN
ANY EVENT, IT IS UNQUESTIONED DOCTRINE THAT ONLY THE SENTENCE BEING
SERVED IS SUBJECT TO HABEAS CORPUS ATTACK.  FN6  FURTHER, SINCE NEITHER
COURT BASED ITS CONCLUSION UPON PETITIONER'S FAILURE TO APPEAL FROM HIS
INITIAL CONVICTION, THAT ISSUE IS NOT BEFORE US.  THERE IS NO PROBLEM
OF JURISDICTION OR POWER IN THE FEDERAL COURTS TO CONSIDER APPLICATIONS
FOR HABEAS CORPUS.  NOR IS THERE AT ISSUE THE EFFECT OF A REFUSAL OF
CERTIORARI BY THIS COURT UPON FUTURE APPLICATIONS FOR FEDERAL HABEAS
CORPUS BY THE STATE PRISONER.  THE ISSUE OF EXHAUSTION OF REMEDY,
HOWEVER, IS NOT ONLY OF VITAL CONCERN TO THOSE WHO WOULD SEEK THE
PROTECTION OF THE GREAT WRIT, BUT IN THE CASE OF STATE PRISONERS IS
CRUCIAL TO THE RELATIONSHIP BETWEEN THE STATE AND FEDERAL SOVEREIGNTIES
IN THE EXERCISE OF THEIR COORDINATE POWER OVER HABEAS CORPUS.  DOUBT
RESPECTING THIS ISSUE SHOULD NOT GO UNRESOLVED.  WE THEREFORE GRANTED
CERTIORARI.  337 U.S. 923. 

THE WRIT OF HABEAS CORPUS COMMANDS GENERAL RECOGNITION AS THE
ESSENTIAL REMEDY TO SAFEGUARD A CITIZEN AGAINST IMPRISONMENT BY STATE
OR NATION IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.  FN7 TO MAKE THIS
PROTECTION EFFECTIVE FOR UNLETTERED PRISONERS WITHOUT FRIENDS OR FUNDS,
FEDERAL COURTS HAVE LONG DISREGARDED LEGALISTIC REQUIREMENTS IN
EXAMINING APPLICATIONS FOR THE WRIT AND JUDGED THE PAPERS BY THE SIMPLE
STATUTORY TEST OF WHETHER FACTS ARE ALLEGED THAT ENTITLE THE APPLICANT
TO RELIEF.  FN8 

THIS FAVORABLE ATTITUDE TOWARD PROCEDURAL DIFFICULTIES ACCORDS WITH
THE SALUTARY PURPOSE OF CONGRESS IN EXTENDING IN 1867 THE SCOPE OF
FEDERAL HABEAS CORPUS BEYOND AN EXAMINATION OF THE COMMITMENT PAPERS
UNDER WHICH A PRISONER WAS HELD TO THE "VERY TRUTH AND SUBSTANCE OF THE
CAUSES OF HIS DETENTION."  FN9  THROUGH THIS EXTENSION OF THE
BOUNDARIES OF FEDERAL HABEAS CORPUS, PERSONS RESTRAINED IN VIOLATION OF
CONSTITUTIONAL RIGHTS MAY REGAIN THEIR FREEDOM.  BUT, SINCE THE 1867
STATUTE GRANTED JURISDICTION TO FEDERAL COURTS TO EXAMINE INTO ALLEGED
UNCONSTITUTIONAL RESTRAINT OF PRISONERS BY STATE POWER, IT CREATED AN
AREA OF POTENTIAL CONFLICT BETWEEN STATE AND FEDERAL COURTS.  AS IT
WOULD BE UNSEEMLY IN OUR DUAL SYSTEM OF GOVERNMENT FOR A FEDERAL
DISTRICT COURT TO UPSET A STATE COURT CONVICTION WITHOUT AN OPPORTUNITY
TO THE STATE COURTS TO CORRECT A CONSTITUTIONAL VIOLATION, THE FEDERAL
COURTS SOUGHT A MEANS TO AVOID SUCH COLLISIONS.  SOLUTION WAS FOUND IN
THE DOCTRINE OF COMITY BETWEEN COURTS, A DOCTRINE WHICH TEACHES THAT
ONE COURT SHOULD DEFER ACTION ON CAUSES PROPERLY WITHIN ITS
JURISDICTION UNTIL THE COURTS OF ANOTHER SOVEREIGNTY WITH CONCURRENT
POWERS, AND ALREADY COGNIZANT OF THE LITIGATION, HAVE HAD AN
OPPORTUNITY TO PASS UPON THE MATTER.  FN10 

SINCE HABEAS CORPUS IS A DISCRETIONARY WRIT, FEDERAL COURTS HAD
AUTHORITY TO REFUSE RELIEF AS A MATTER OF COMITY UNTIL STATE REMEDIES
WERE EXHAUSTED.  THROUGH THIS COMITY, THE DOCTRINE OF EXHAUSTION OF
STATE REMEDIES HAS DEVELOPED STEADILY FROM CASES REFUSING FEDERAL
HABEAS CORPUS BEFORE STATE TRIAL TO A STATUTORY DIRECTION THAT FEDERAL
COURTS SHALL NOT GRANT THE WRIT TO A STATE PRISONER UNTIL STATE
REMEDIES HAVE BEEN EXHAUSTED.  EX PARTE ROYALL,  FN11  DECIDED IN 1886,
HELD THAT A FEDERAL DISTRICT COURT HAD JURISDICTION TO RELEASE BEFORE
TRIAL A STATE PRISONER WHO WAS HELD IN VIOLATION OF FEDERAL
CONSTITUTIONAL RIGHTS, BUT IT APPROVED DENIAL OF THE WRIT AS A MATTER
OF DISCRETION.  IT WAS NOT TO BE PRESUMED THAT "THE DECISION OF THE
STATE COURT WOULD BE OTHERWISE THAN IS REQUIRED BY THE FUNDAMENTAL LAW
OF THE LAND, OR THAT IT WOULD DISREGARD THE SETTLED PRINCIPLES OF
CONSTITUTIONAL LAW ANNOUNCED BY THIS COURT  ...  "  FN12  ANALOGY WAS
FOUND IN EARLIER CASES WHERE STATE AND FEDERAL JURISDICTION TO ATTACH
PROPERTY HAD BEEN FOUND TO OVERLAP.  APROPOS WERE THE WORDS OF THE
COURT IN COVELL V. HEYMAN:  FN13 

"THE FORBEARANCE WHICH COURTS OF CO-ORDINATE JURISDICTION,
ADMINISTERED UNDER A SINGLE SYSTEM, EXERCISE TOWARDS EACH OTHER,
WHEREBY CONFLICTS ARE AVOIDED, BY AVOIDING INTERFERENCE WITH THE
PROCESS OF EACH OTHER, IS A PRINCIPLE OF COMITY, WITH PERHAPS NO HIGHER
SANCTION THAN THE UTILITY WHICH COMES FROM CONCORD; BUT BETWEEN STATE
COURTS AND THOSE OF THE UNITED STATES, IT IS SOMETHING MORE.  IT IS A
PRINCIPLE OF RIGHT AND OF LAW, AND THEREFORE, OF NECESSITY." 

IN THE SAME TERM OF COURT THE DOCTRINE WAS ADVANCED TO ITS NEXT
STAGE, FOR IN EX PARTE FONDA FN14  THE PRISONER SOUGHT HIS FEDERAL
RELIEF IN THIS COURT AFTER HIS STATE CONVICTION BUT BEFORE HE HAD
PROSECUTED HIS APPEAL TO THE STATE APPELLATE TRIBUNAL.  STRESSING THE
IMPORTANCE OF NONINTERFERENCE WITH THE ORDERLY PROCESSES OF APPELLATE
REVIEW, THIS COURT DENIED THE WRIT, FOR IF THE TRIAL COURT HAD ERRED TO
THE PREJUDICE OF PETITIONER'S CONSTITUTIONAL RIGHTS, IT COULD NOT BE
ASSUMED THAT THE STATE APPELLATE COURT WOULD SUFFER THE ERROR TO GO
UNCORRECTED.  FN15 

THE ESTABLISHED DOCTRINE WAS APPLIED TO MEET THE VARIATIONS PRESENTED
BY THE CASES.  BY 1891, IT WAS CLEAR THAT A FEDERAL CIRCUIT COURT
COMMITTED NO ERROR IN REFUSING A WRIT ON THE GROUND THAT THE PETITIONER
HAD NOT COME TO THIS COURT ON WRIT OF ERROR; FN16  AND A GREAT BODY OF
CASES AFFIRMED THIS HOLDING THAT THE PETITIONER SHOULD BE "PUT TO HIS
WRIT OF ERROR."  FN17  BAKER V. GRICE  FN18  STATES THE REASON FOR THE
RULE THAT AFTER A FINAL DETERMINATION OF THE CASE BY THE STATE COURT,
THE FEDERAL COURTS WILL EVEN THEN GENERALLY LEAVE THE PETITIONER TO HIS
REMEDY BY WRIT OF ERROR FROM THIS COURT. 

"  ...  IT IS AN EXCEEDINGLY DELICATE JURISDICTION GIVEN TO THE
FEDERAL COURTS BY WHICH A PERSON UNDER AN INDICTMENT IN A STATE COURT
AND SUBJECT TO ITS LAWS MAY, BY THE DECISION OF A SINGLE JUDGE OF THE
FEDERAL COURT, UPON A WRIT OF HABEAS CORPUS, BE TAKEN OUT OF THE
CUSTODY OF THE OFFICERS OF THE STATE AND FINALLY DISCHARGED THEREFROM,
AND THUS A TRIAL BY THE STATE COURTS OF AN INDICTMENT FOUND UNDER THE
LAWS OF A STATE BE FINALLY PREVENTED." 

AND TO THIS THE COURT ADDED, IN MARKUSON V. BOUCHER,  FN19  THE
EXPLICIT REASON WHY THE EXHAUSTION PRINCIPLE MUST EXTEND TO REMEDIES
AVAILABLE IN THIS COURT AS WELL AS THOSE OPEN IN THE STATE TRIBUNALS. 

"THE JURISDICTION IS MORE DELICATE, THE REASON AGAINST ITS EXERCISE
STRONGER, WHEN A SINGLE JUDGE IS INVOKED TO REVERSE THE DECISION OF THE
HIGHEST COURT OF A STATE IN WHICH THE CONSTITUTIONAL RIGHTS OF A
PRISONER COULD HAVE BEEN CLAIMED  ...  " 

IN 1913, A PETITIONER WAS DENIED AN ORIGINAL WRIT HERE EVEN THOUGH HE
HAD APPEALED AND HAD APPLIED FOR STATE HABEAS CORPUS, WITH THE COMMENT
THAT WRIT OF ERROR TO THIS COURT WAS REQUIRED.  FN20  AND FOLLOWING
NEXT UPON THE HEELS OF AN ADJUDICATION THAT A STATE HABEAS CORPUS
ACTION IS A "SUIT" YIELDING A FINAL REVIEWABLE JUDGMENT,  FN21  CAME
THE LEADING CASE OF MOONEY V. HOLOHAN, FN22  CLEARLY ESTABLISHING THE
RULE THAT AVAILABLE COLLATERAL ATTACKS IN THE STATE TRIBUNALS MUST BE
EXHAUSTED IN ADDITION TO DIRECT ATTACKS ON THE CONVICTION.  FN23  IN
1944 THE UNANIMOUS PER CURIAM OPINION OF EX PARTE HAWK STATED THE FULLY
DEVELOPED AND ESTABLISHED EXHAUSTION DOCTRINE IN ITS MOST FREQUENTLY
QUOTED FORM.  FN24 

"ORDINARILY AN APPLICATION FOR HABEAS CORPUS BY ONE DETAINED UNDER A
STATE COURT JUDGMENT OF CONVICTION FOR CRIME WILL BE ENTERTAINED BY A
FEDERAL COURT ONLY AFTER ALL STATE REMEDIES AVAILABLE, INCLUDING ALL
APPELLATE REMEDIES IN THE STATE COURTS AND IN THIS COURT BY APPEAL OR
WRIT OF CERTIORARI, HAVE BEEN EXHAUSTED." 

THE DOCTRINE OF EX PARTE HAWK HAS BEEN REPEATEDLY APPROVED,  FN25
AND IN WHITE V. RAGEN THE SAME COURT AGAIN UNANIMOUSLY RESTATED THAT
PRINCIPLE IN THE CLEAREST LANGUAGE.  FN26 

"WHERE THE HIGHEST STATE COURT IN WHICH A DECISION COULD BE HAD
CONSIDERS AND ADJUDICATES THE MERITS OF A PETITION FOR HABEAS CORPUS,
STATE REMEDIES, INCLUDING APPELLATE REVIEW, ARE NOT EXHAUSTED SO AS TO
PERMIT THE FILING OF A PETITION FOR HABEAS CORPUS IN A FEDERAL DISTRICT
COURT, UNLESS THE FEDERAL QUESTION INVOLVED IS PRESENTED TO THIS COURT
ON CERTIORARI OR APPEAL FROM THE STATE COURT DECISION." 

THUS COMITY, WHICH HAD CONSTRAINED THE LOWER FEDERAL COURTS TO REFUSE
A GRANT OF THE GREAT WRIT WHEN REMEDIES IN STATE COURTS WERE STILL
OPEN, BROUGHT FORTH THE RELATED RULE THAT LOWER FEDERAL COURTS
ORDINARILY WILL NOT ALLOW HABEAS CORPUS IF THE APPLICANT HAS NOT
EXHAUSTED HIS REMEDY IN THIS COURT BY CERTIORARI OR APPEAL FROM STATE
COURTS' REFUSAL OF RELIEF ON COLLATERAL ATTACK. 

IN WADE V. MAYO ALONE,  FN27  A CASE DECIDED LESS THAN FOUR YEARS
LATER, DOES THERE APPEAR LANGUAGE THAT MAY BE CONSTRUED AS A DEPARTURE
FROM THE ESTABLISHED RULE.  THE DISTRICT COURT WAS ALLOWED TO HEAR
WADE'S PETITION FOR HABEAS CORPUS EVEN THOUGH HE HAD NOT APPLIED HERE
FOR CERTIORARI, BECAUSE THERE WAS GRAVE DOUBT WHETHER THE STATE
JUDGMENT CONSTITUTED AN ADJUDICATION OF A FEDERAL QUESTION.  THE COURT
SAID, AT P. 682: 

"THAT DOUBT WAS SUCH AS TO MAKE IT REASONABLY CERTAIN THAT THIS COURT
WOULD HAVE DENIED CERTIORARI ON THE THEORY THAT AN ADEQUATE STATE
GROUND APPEARED TO UNDERLIE THE JUDGMENT.  HIS FAILURE TO MAKE THIS
FUTILE ATTEMPT TO SECURE CERTIORARI ACCORDINGLY SHOULD NOT PREJUDICE
HIS SUBSEQUENT PETITION FOR HABEAS CORPUS IN THE DISTRICT COURT."    WE
HAD POINTED OUT IN WHITE V. RAGEN, SUPRA, A PER CURIAM EXPRESSLY
REITERATING THE HAWK DOCTRINE, THAT WHERE A STATE COURT'S "DECISION IS
BASED UPON SOME OTHER ADEQUATE NON-FEDERAL GROUND, IT IS UNNECESSARY
FOR THE PETITIONER TO ASK THIS COURT FOR CERTIORARI IN ORDER TO EXHAUST
HIS STATE REMEDIES, SINCE WE WOULD LACK JURISDICTION TO REVIEW THE
DECISION OF THE STATE COURT.". FN28 

NOT LIMITING ITS DISCUSSION TO THE HOLDING ON THE HAWK EXCEPTION,
HOWEVER, WADE ALSO TREATED WITH THE GENERAL HAWK RULE OF THE NECESSITY
FOR REVIEW HERE BEFORE SEEKING THE WRIT IN THE FEDERAL DISTRICT COURT. 
THE THOUGHT BEHIND THE LANGUAGE ON THAT POINT EVIDENTLY WAS THAT REVIEW
HERE IS NOT USUALLY REQUIRED AS A CONDITION TO A HEARING ON THE MERITS
IN THE DISTRICT COURT.  WADE DID RECOGNIZE THAT FAILURE TO COME HERE
MIGHT BE RELEVANT IN DETERMINING WHETHER A DISTRICT COURT SHOULD
ENTERTAIN AN APPLICATION.  ON P. 680 IT IS SAID: 

"AFTER STATE PROCEDURE HAS BEEN EXHAUSTED, THE CONCERN IS WITH THE
APPROPRIATE FEDERAL FORUM IN WHICH TO PURSUE FURTHER THE CONSTITUTIONAL
CLAIM.  THE CHOICE LIES BETWEEN APPLYING DIRECTLY TO THIS COURT FOR
REVIEW OF THE CONSTITUTIONAL ISSUE BY CERTIORARI OR INSTITUTING AN
ORIGINAL HABEAS CORPUS PROCEEDING IN A FEDERAL DISTRICT COURT. 
CONSIDERATIONS OF PROMPT AND ORDERLY PROCEDURE IN THE FEDERAL COURTS
WILL OFTEN DICTATE THAT DIRECT REVIEW BE SOUGHT FIRST IN THIS COURT. 
AND WHERE A PRISONER HAS NEGLECTED TO SEEK THAT REVIEW, SUCH FAILURE
MAY BE A RELEVANT CONSIDERATION FOR A DISTRICT COURT IN DETERMINING
WHETHER TO ENTERTAIN A SUBSEQUENT HABEAS CORPUS PETITION." 

WE DO NOT STOP TO REEXAMINE THE MEANING OF WADE'S SPECIFIC LANGUAGE. 
WHATEVER DEVIATION WADE MAY IMPLY FROM THE ESTABLISHED RULE WILL BE
CORRECTED BY THIS DECISION. 

EX PARTE HAWK PRESCRIBES ONLY WHAT SHOULD "ORDINARILY" BE THE PROPER
PROCEDURE; ALL THE CITED CASES FROM EX PARTE ROYALL TO HAWK RECOGNIZE
THAT MUCH CANNOT BE FORESEEN, AND THAT "SPECIAL CIRCUMSTANCES" JUSTIFY
DEPARTURE FROM RULES DESIGNED TO REGULATE THE USUAL CASE.  THE
EXCEPTIONS ARE FEW BUT THEY EXIST.  FN29  OTHER SITUATIONS MAY
DEVELOP.  COMPARE MOORE V. DEMPSEY, 261 U.S. 86.  CONGRESS HAS NOW MADE
STATUTORY ALLOWANCE FOR EXCEPTIONS SUCH AS THESE, LEAVING FEDERAL
COURTS FREE TO GRANT HABEAS CORPUS WHEN THERE EXIST "CIRCUMSTANCES
RENDERING SUCH (STATE) PROCESS INEFFECTIVE TO PROTECT THE RIGHTS OF THE
PRISONER."  28 U.S.C. SEC. 2254. 

IN SEC. 2254 OF THE 1948 RECODIFICATION OF THE JUDICIAL CODE,
CONGRESS GAVE LEGISLATIVE RECOGNITION TO THE HAWK RULE FOR THE
EXHAUSTION OF REMEDIES IN THE STATE COURTS AND THIS COURT.  FN30  THIS
WAS DONE BY EMBODYING IN THE NEW STATUTE THE RULINGS DRAWN FROM THE
PRECEDENTS.  FN31 THE RULINGS HAD BEEN DEFINITIVELY RESTATED IN HAWK. 
THAT CASE HAD REPRESENTED AN EFFORT BY THIS COURT TO CLEAR THE WAY FOR
PROMPT AND ORDERLY CONSIDERATION OF HABEAS CORPUS PETITIONS FROM STATE
PRISONERS.  THIS COURT HAD CAUSED THE HAWK OPINION TO BE DISTRIBUTED TO
PERSONS SEEKING FEDERAL HABEAS CORPUS RELIEF FROM STATE RESTRAINT AND
THE OPINION HAD BEEN GENERALLY CITED AND FOLLOWED.  FN32  THERE IS NO
DOUBT THAT CONGRESS THOUGHT THAT THE DESIRABLE RULE DRAWN FROM THE
EXISTING PRECEDENTS WAS STATED BY HAWK, FOR THE STATUTORY REVISER'S
NOTES INFORM US THAT 

"THIS NEW SECTION IS DECLARATORY OF EXISTING LAW AS AFFIRMED BY THE
SUPREME COURT.  (SEE EX PARTE HAWK, 1944, 64 S. CT. 448, 321 U.S. 114,
88 L. ED. 572.)"  FN33 

WHILE THIS SECTION DOES NOT REFER EXPRESSLY TO THE REQUIREMENT FOR
APPLICATION TO THIS COURT FOR REVIEW, IT MUST BE READ IN THE LIGHT OF
THE STATEMENT QUOTED ON P. 207, SUPRA, FROM HAWK.  SO READ, THERE WAS
OCCASION NEITHER FOR THE DRAFTSMEN OF SEC. 2254 TO MAKE REFERENCE TO
REVIEW IN THIS COURT, NOR FOR THE COMMITTEES OF THE HOUSE OR SENATE OR
MEMBERS OF CONGRESS TO COMMENT UPON IT.  IT IS IMMATERIAL WHETHER AS A
MATTER OF TERMINOLOGY IT IS SAID THAT REVIEW IN THIS COURT OF A STATE
JUDGMENT DECLINING RELIEF FROM STATE RESTRAINT IS A PART OF THE STATE
JUDICIAL PROCESS WHICH MUST BE EXHAUSTED, OR WHETHER IT IS SAID TO BE A
PART OF FEDERAL PROCEDURE.  THE ISSUE CANNOT BE SETTLED BY USE OF THE
PROPER WORDS.  HAWK TREATED REVIEW HERE AS A STATE REMEDY.  WADE
THOUGHT IT WAS NOT STATE PROCEDURE.  BUT UNDOUBTEDLY REVIEW HERE IS A
PART OF THE PROCESS BY WHICH A PERSON UNCONSTITUTIONALLY RESTRAINED OF
HIS LIBERTY MAY SECURE REDRESS.  EX PARTE HAWK HAD MADE IT CLEAR THAT
ALL APPELLATE REMEDIES AVAILABLE IN THE STATE COURT AND IN THIS COURT
MUST BE CONSIDERED AS STEPS IN THE EXHAUSTION OF THE STATE REMEDY IN
THE SENSE THAT THE TERM IS USED, PERHAPS INEXACTLY, IN THE FIELD OF
HABEAS CORPUS.  FN34  CONSIDERATION OF THE LEGISLATIVE HISTORY OF SEC.
2254 REVEALS NO SUGGESTION THAT THE DRAFTSMEN INTENDED TO ALTER THE
SENSE OF THE TERM AS DEFINED IN HAWK OR TO DIFFERENTIATE BETWEEN
EXHAUSTION OF STATE REMEDIES AND REVIEW IN THIS COURT.  ALL THE
EVIDENCE MANIFESTS A PURPOSE TO ENACT HAWK INTO STATUTE.  THE REVISER'S
NOTES, EXPLICITLY STATING THIS PURPOSE, REMAINED UNCHANGED THROUGHOUT
THE BILL'S LEGISLATIVE PROGRESS.  FN35  SO DID THE STATEMENT OF THE
EXHAUSTION PRINCIPLE CONTAINED IN THE FIRST PARAGRAPH OF SEC. 2254 DOWN
TO THE FIRST "OR."  FN36  NONE OF THE CHANGES OR ADDITIONS MADE BY THE
SENATE TO SEC. 2254 AFFECTED THE PROBLEM OF REVIEW HERE.  THEY WERE
DIRECTED AT OTHER ISSUES.  FN37 

IT SEEMS SURE THAT CONGRESS DRAFTED AND ENACTED SEC. 2254 EXPECTING
REVIEW HERE IN CONFORMITY WITH THE HAWK RULE.  NOTHING INDICATES TO US
A DESIRE ON THE PART OF CONGRESS TO MODIFY THE LANGUAGE.  WE THINK THE
RULE OF THE HAWK CASE THAT ORDINARILY REQUIRES AN EFFORT TO OBTAIN
REVIEW HERE HAS BEEN ACCEPTED BY CONGRESS AS A SOUND RULE TO GUIDE
CONSIDERATION OF HABEAS CORPUS IN FEDERAL COURTS. 

THERE IS AN INSISTENCE VOICED BY THE DISSENT THAT WE DETERMINE WHAT
EFFECT THE LOWER FEDERAL COURTS SHOULD ACCORD A DENIAL OF CERTIORARI BY
THIS COURT WHEN THE STATE PRISONER LATER APPLIES FOR FEDERAL HABEAS
CORPUS.  THE ISSUE OF THE EFFECT OF SUCH A DENIAL APPARENTLY COULD
ARISE ONLY IN A CASE WHERE, AFTER OUR REFUSAL, THE STATE PRISONER
PRESENTED HIS APPLICATION TO ANOTHER FEDERAL COURT.  IT IS NOT HERE IN
THIS CASE.  WE DOUBT THE EFFECTIVENESS OF A VOLUNTARY STATEMENT ON A
POINT NOT IN ISSUE.  FN38  WHETHER A REFUSAL TO GRANT CERTIORARI
IMPORTS AN OPINION ON ANY ISSUE OR NOT, THE REASON PERSISTS FOR
REQUIRING AN APPLICATION HERE FROM THE STATE REFUSAL BEFORE APPLICATION
TO ANOTHER FEDERAL COURT. 

THERE SHOULD BE NO CONTROVERSY OVER WHETHER THE REFUSAL OF CERTIORARI
"WOULD SERVE THE PURPOSE OF AN ADJUDICATION ON THE MERITS."  ALL THE
AUTHORITIES AGREE THAT RES JUDICATA DOES NOT APPLY TO APPLICATIONS FOR
HABEAS CORPUS.  THE COURTS MUST BE KEPT OPEN TO GUARD AGAINST INJUSTICE
THROUGH JUDICIAL ERROR.  FN39  EVEN AFTER THIS COURT HAS DECLINED TO
REVIEW A STATE JUDGMENT DENYING RELIEF, OTHER FEDERAL COURTS HAVE POWER
TO ACT ON A NEW APPLICATION BY THE PRISONER.  FN40  ON THAT
APPLICATION, THE COURT MAY REQUIRE A SHOWING OF THE RECORD AND ACTION
ON PRIOR APPLICATIONS, AND MAY DECLINE TO EXAMINE FURTHER INTO THE
MERITS BECAUSE THEY HAVE ALREADY BEEN DECIDED AGAINST THE PETITIONER. 
FN41  THUS THERE IS AVOIDED ABUSE OF THE WRIT BY REPEATED ATTEMPTS TO
SECURE A HEARING ON FRIVOLOUS GROUNDS, AND REPEATED ADJUDICATIONS OF
THE SAME ISSUES BY COURTS OF COORDINATE POWERS. 

IN THIS WAY THE RECORD ON CERTIORARI IN THIS COURT IS BROUGHT TO THE
ATTENTION OF THE TRIAL COURT.  THERE HAVE BEEN STATEMENTS MADE IN
FORMER OPINIONS OF THIS COURT AS TO THE EFFECT OF DENIAL OF PETITIONS
FOR HABEAS CORPUS.  FN42  RECORDS PRESENTED TO THIS COURT ON PETITIONS
IN HABEAS CORPUS CASES RAISE MANY DIFFERENT ISSUES.  THERE MAY BE
ISSUES OF STATE PROCEDURE, QUESTIONS OF FACT REGARDING THE ALLEGED
VIOLATIONS OF CONSTITUTIONAL RIGHTS, AND ISSUES OF LAW RESPECTING THE
SCOPE OF CONSTITUTIONAL RIGHTS - PROBLEMS MADE DIFFICULT BY THE
FREQUENT PRACTICE OF STATE COURTS TO DISMISS THE APPLICATIONS WITHOUT
OPINION.  IF THIS COURT HAS DOUBTS CONCERNING THE BASIS OF STATE COURT
JUDGMENTS, THE MATTER MAY BE HANDLED AS IN BURKE V. GEORGIA, 338 U.S.
941, WITH AN EXPRESS DIRECTION THAT THE PETITIONER MAY PROCEED IN THE
FEDERAL DISTRICT COURT WITHOUT PREJUDICE FROM THE DENIAL OF HIS
PETITION FOR CERTIORARI.  IF THE DISTRICT COURT FEELS THAT ERROR MAY
HAVE OCCURRED, IT HAS POWER TO EXAMINE THE APPLICATION TO SEE IF
CIRCUMSTANCES EXIST TO JUSTIFY IT IN HOLDING A HEARING ON THE MERITS. 
SUCH FREEDOM OF ACTION PROTECTS THE GREAT WRIT WITHOUT TRIVIALIZING IT.
FN43 

BUT IT IS ARGUED THAT IF THE DENIAL OF CERTIORARI MEAN NOTHING, THE
RESULT OF OUR DECISION IS TO FORCE A "MEANINGLESS STEP."  WE DO NOT
AGREE.  THOUGH OUR DENIAL OF CERTIORARI CARRY NO WEIGHT IN A SUBSEQUENT
FEDERAL HABEAS CORPUS PROCEEDING, WE THINK A PETITION FOR CERTIORARI
SHOULD NEVERTHELESS BE MADE BEFORE AN APPLICATION MAY BE FILED IN
ANOTHER FEDERAL COURT BY A STATE PRISONER.  THE REQUIREMENT DERIVES
FROM THE BASIC FACT THAT THIS REPUBLIC IS A FEDERATION, A UNION OF
STATES THAT HAS CREATED THE UNITED STATES.  WE HAVE DETAILED THE
EVOLUTION OF AND THE REASON FOR THE CONCLUSION THAT THE RESPONSIBILITY
TO INTERVENE IN STATE CRIMINAL MATTERS RESTS PRIMARILY UPON THIS
COURT.  IT IS THIS COURT WHICH ORDINARILY SHOULD REVERSE STATE COURT
JUDGMENTS CONCERNING LOCAL CRIMINAL ADMINISTRATION.  THE OPPORTUNITY TO
MEET THAT CONSTITUTIONAL RESPONSIBILITY SHOULD BE AFFORDED.  EVEN IF
THE DISTRICT COURT MAY DISREGARD OUR DENIAL OF CERTIORARI, THE FACT
THAT POWER TO OVERTURN STATE CRIMINAL ADMINISTRATION MUST NOT BE
LIMITED TO THIS COURT ALONE DOES NOT MAKE IT LESS DESIRABLE TO GIVE
THIS COURT AN OPPORTUNITY TO PERFORM ITS DUTY OF PASSING UPON CHARGES
OF STATE VIOLATIONS OF FEDERAL CONSTITUTIONAL RIGHTS.  THIS COURT HAS
EVOLVED A PROCEDURE WHICH ASSURES AN EXAMINATION INTO THE SUBSTANCE OF
A PRISONER'S PROTEST AGAINST UNCONSTITUTIONAL DETENTION WITHOUT
ALLOWING DESTRUCTIVE ABUSE OF THE PRECIOUS GUARANTY OF THE GREAT WRIT. 
CONGRESS HAS SPECIFICALLY APPROVED IT.  THOUGH A REFUSAL OF CERTIORARI
HAVE NO EFFECT UPON A LATER APPLICATION FOR FEDERAL HABEAS CORPUS, A
PETITION FOR CERTIORARI HERE ORDINARILY SHOULD BE REQUIRED. 

THE ANSWER TO PETITIONER'S ARGUMENT THAT HE SHOULD NOT BE REQUIRED TO
SEEK REVIEW HERE FROM A STATE'S REFUSAL TO GRANT COLLATERAL RELIEF
BEFORE APPLYING TO OTHER FEDERAL COURTS INVOLVES A PROPER DISTRIBUTION
OF POWER BETWEEN STATE AND FEDERAL COURTS.  THE SOLE ISSUE IS WHETHER
COMITY CALLS FOR REVIEW HERE BEFORE A LOWER FEDERAL COURT MAY BE ASKED
TO INTERVENE IN STATE MATTERS.  WE ANSWER IN THE AFFIRMATIVE.  SUCH A
RULE ACCORDS WITH OUR FORM OF GOVERNMENT.  SINCE THE STATES HAVE THE
MAJOR RESPONSIBILITY FOR THE MAINTENANCE OF LAW AND ORDER WITHIN THEIR
BORDERS, THE DIGNITY AND IMPORTANCE OF THEIR ROLE AS GUARDIANS OF THE
ADMINISTRATION OF CRIMINAL JUSTICE MERITS REVIEW OF THEIR ACTS BY THIS
COURT BEFORE A PRISONER, AS A MATTER OF ROUTINE, MAY SEEK RELEASE FROM
STATE PROCESS IN THE DISTRICT COURTS OF THE UNITED STATES.  IT IS THIS
COURT'S CONVICTION THAT ORDERLY FEDERAL PROCEDURE UNDER OUR DUAL SYSTEM
OF GOVERNMENT DEMANDS THAT THE STATE'S HIGHEST COURTS SHOULD ORDINARILY
BE SUBJECT TO REVERSAL ONLY BY THIS COURT AND THAT A STATE'S SYSTEM FOR
THE ADMINISTRATION OF JUSTICE SHOULD BE CONDEMNED AS CONSTITUTIONALLY
INADEQUATE ONLY BY THIS COURT.  FROM THIS CONVICTION SPRINGS THE
REQUIREMENT OF PRIOR APPLICATION TO THIS COURT TO AVOID UNSEEMLY
INTERFERENCE BY FEDERAL DISTRICT COURTS WITH STATE CRIMINAL
ADMINISTRATION. 

AS THE HAWK REQUIREMENT, WE THINK, HAS ALWAYS BEEN THE RULE, NO
CHANGE IN PROCEDURE IS NECESSARY AND THE REITERATION OF THE RULE IN
THIS DECISION CAN, OF COURSE, RESULT IN NO SHIFTING OF THE BURDEN OF
WORK AMONG FEDERAL COURTS.  FN44  NO PERSON RESTRAINED BY STATE PROCESS
COULD HERETOFORE HAVE BEEN CERTAIN OF A HEARING ON THE MERITS OF HIS
APPLICATION TO A FEDERAL DISTRICT COURT UNLESS HE HAD SOUGHT REVIEW IN
THIS COURT OF THE STATE'S REFUSAL TO RELEASE HIM.  FN45  FURTHER, THE
RULE CONTRIBUTES TOWARD EXPEDITIOUS ADMINISTRATION, SINCE IT RAISES THE
CONSTITUTIONAL ISSUE IN A FEDERAL FORUM IMMEDIATELY, WITHOUT THE
NECESSITY OF A SECOND TRIAL COURT PROCEEDING AND THE COMPILATION OF A
SECOND RECORD.  AND WHILE THE RULE HAS THE MERIT OF REASONABLE
CERTAINTY, IT DOES NOT ERR ON THE SIDE OF UNREASONABLE RIGIDITY. 
FLEXIBILITY IS LEFT TO TAKE CARE OF THE EXTRAORDINARY SITUATIONS THAT
DEMAND PROMPT ACTION.  SOLICITOUS AS WE ARE THAT NO MAN BE
UNCONSTITUTIONALLY RESTRAINED AND THAT PROMPT, CERTAIN AND SIMPLE
METHODS FOR REDRESS BE AVAILABLE, THOSE ENDS FOR WHICH MODERN HABEAS
CORPUS HAS BEEN EVOLVED CAN BEST BE ACHIEVED BY REQUIRING IN ORDINARY
CASES THE EXHAUSTION OF STATE REMEDIES AND REVIEW HERE. 

THE PRESENT CASE INVOLVES A REFUSAL, ON THE MERITS, OF STATE
COLLATERAL RELIEF FROM A CONVICTION ALLEGEDLY OBTAINED IN VIOLATION OF
THE CONSTITUTION.  NO REVIEW WAS SOUGHT IN THIS COURT OF THE STATE'S
REFUSAL.  INSTEAD, WITHOUT ALLEGING THAT REVIEW HAD BEEN SOUGHT IN THIS
COURT AND WITHOUT RELIANCE UPON ANY PLEADED FACTS TO EXCUSE SUCH
FAILURE, THE PETITIONER FILED HIS APPLICATION FOR THIS HABEAS CORPUS IN
THE DISTRICT COURT.  LIMITING ITS CONSIDERATION OF THE APPLICATION
SOLELY TO THE QUESTION AS TO WHETHER THIS WAS AN EXTRAORDINARY INSTANCE
THAT REQUIRED DISREGARD OF ACCUSTOMED PROCEDURE, THE DISTRICT COURT
FOUND THAT THIS WAS NOT A CASE OF PECULIAR URGENCY.  WE AGREE WITH THE
LOWER COURT'S CONCLUSION THAT IT SHOULD GO NO FURTHER INTO
CONSIDERATION OF THE APPLICATION.  A CONVICTION AFTER PUBLIC TRIAL IN A
STATE COURT BY VERDICT OR PLEA OF GUILTY PLACES THE BURDEN ON THE
ACCUSED TO ALLEGE AND PROVE PRIMARY FACTS, NOT INFERENCES, THAT SHOW,
NOTWITHSTANDING THE STRONG PRESUMPTION OF CONSTITUTIONAL REGULARITY IN
STATE JUDICIAL PROCEEDINGS, THAT IN HIS PROSECUTION THE STATE SO
DEPARTED FROM CONSTITUTIONAL REQUIREMENTS AS TO JUSTIFY A FEDERAL
COURT'S INTERVENTION TO PROTECT THE RIGHTS OF THE ACCUSED.  FN46  THE
PETITIONER HAS THE BURDEN ALSO OF SHOWING THAT OTHER AVAILABLE REMEDIES
HAVE BEEN EXHAUSTED OR THAT CIRCUMSTANCES OF PECULIAR URGENCY EXIST. 
NOTHING HAS BEEN PLEADED OR PROVED TO SHOW THAT HERE EXCEPTIONAL
CIRCUMSTANCES EXIST TO REQUIRE PROMPT FEDERAL INTERVENTION.  OKLAHOMA
DENIED HABEAS CORPUS AFTER OBVIOUSLY CAREFUL CONSIDERATION.  FN47  IF
THAT DENIAL VIOLATED FEDERAL CONSTITUTIONAL RIGHTS, THE REMEDY WAS
HERE, NOT IN THE DISTRICT COURT, AND THE DISTRICT COURT PROPERLY
REFUSED TO EXAMINE THE MERITS.  AFFIRMED.    FN1  EX PARTE DARR, 84
OKLA. CR. 352, 182 P.2D 523.    FN2  77 F.SUPP.  553, 556. 

FN3  77 F.SUPP.  553. 

FN4  172 F.2D 668(C.A. 10TH CIR.). 

FN5  DAVIS V. BURKE, 179 U.S. 399. 

FN6  MCNALLY V. HILL, 293 U.S. 131. 

FN7  HAWK V. OLSON, 326 U.S. 271, 274. 

FN8  HOLIDAY V. JOHNSON, 313 U.S. 342, 350; PRICE V. JOHNSTON, 334
U.S. 266, 291-92; 28 U.S.C. SEC. 2242, RESTATING R.S. SEC. 754. 

FN9  SEE HAWK V. OLSON, SUPRA, PP. 274-75, NOTES 3, 4. 

FN10  COMITY THROUGH DISCRETION IN GRANTING HABEAS CORPUS HAD AN
ANTECEDENT IN AN EARLY STATUTORY COMMAND RESTRAINING FEDERAL INJUNCTIVE
INTERFERENCE WITH STATE COURTS.  28 U.S.C. SEC. 2283; 1 STAT. 334, SEC.
5; SEE BOWLES V. WILLINGHAM, 321 U.S. 503.  CF. THE THREE-JUDGE
DISTRICT COURT PROVISIONS, 28 U.S.C. SECS. 2281, 2284. 

FN11  117 U.S. 241. 

FN12  117 U.S. 241, 252; COOK V. HART, 146 U.S. 183. 

FN13  111 U.S. 176, 182. 

FN14  117 U.S. 516. 

FN15  IN RE DUNCAN, 139 U.S. 449, 454. 

FN16  IN RE WOOD, 140 U.S. 278. 

FN17  IN RE JUGIRO, 140 U.S. 291; IN RE FREDERICH, 149 U.S. 70, 77
78; NEW YORK V. ENO, 155 U.S. 89, 98; PEPKE V. CRONAN, 155 U.S. 100;
WHITTEN V. TOMLINSON, 160 U.S. 231, 242; TINSLEY V. ANDERSON, 171 U.S.
101, 104-105; MINNESOTA V. BRUNDAGE, 180 U.S. 499, 503; REID V. JONES,
187 U.S. 153; URQUHART V. BROWN, 205 U.S. 179, 181-82; UNITED STATES EX
REL. KENNEDY V. TYLER, 269 U.S. 13, 17. 

FN18  169 U.S. 284, 291. 

FN19  175 U.S. 184, 187. 

FN20  EX PARTE SPENCER, 228 U.S. 652, 660-61. 

FN21  BRYANT V. ZIMMERMAN, 278 U.S. 63, 70. 

FN22  294 U.S. 103. 

FN23  THE POINT HAS BEEN CONFIRMED MANY TIMES.  EX PARTE BOTWINSKI,
314 U.S. 586; EX PARTE DAVIS, 317 U.S. 592; EX PARTE WILLIAMS, 317 U.S.
604; EX PARTE ABERNATHY, 320 U.S. 219; AND SEE CASES CITED IN NOTE 25,
INFRA. 

FN24  321 U.S. 114, 116-17. 

FN25  WHITE V. RAGEN, 324 U.S. 760, 767; HOUSE V. MAYO, 324 U.S. 42,
46, 48; MARINO V. RAGEN, 332 U.S. 561, 564; WADE V. MAYO, 334 U.S. 672,
679; YOUNG V. RAGEN, 337 U.S. 235, 238.  AND SEE NOTE 32, INFRA. 

FN26  324 U.S. 760, 764. 

FN27  334 U.S. 672. 

FN28  324 U.S. 760, 765.  IN THE WHITE CASE WE CONCLUDED THAT THE
STATE GROUND WAS THE REFUSAL BY THE SUPREME COURT OF ILLINOIS TO
ENTERTAIN APPLICATIONS WITH POSSIBLE FACT CONTROVERSIES.  PP. 766-67. 
WE MADE IT CLEAR THAT WHILE PROPER PROCEDURE DOES NOT REQUIRE REVIEW IN
THIS COURT OF A JUDGMENT DENYING HABEAS CORPUS ON AN ADEQUATE STATE
GROUND, OTHER AVAILABLE STATE REMEDIES MUST BE EXHAUSTED BEFORE AN
APPLICATION SHOULD BE ENTERTAINED IN A DISTRICT COURT.  P. 767. 

FN29  SEE WHITE V. RAGEN, 324 U.S. 760; EX PARTE ROYALL, 117 U.S.
241, 251. 

FN30  YOUNG V. RAGEN, 337 U.S. 235, 238.  28 U.S.C. SEC. 2254 READS: 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PERSON IN
CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT BE GRANTED
UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER AN
ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER. 

"AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

FN31  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE JUDICIARY
COMMITTEE ON H.R. 3214, APRIL 22 TO JUNE 7, 1948, 80TH CONG., 2D SESS.,
P. 28.  SEE 28 U.S.C. CONGRESSIONAL SERVICE, P. XXVIII; H.R. REP. NO.
308 ON H.R. 3214, 80TH CONG., 1ST SESS., P. 3. 

FN32  SEE LYON V. HARKNESS, 151 F.2D 731, 733(C.A. 1ST CIR., N.H.);
UNITED STATES EX REL. MONSKY V. WARDEN OF CLINTON STATE PRISON, 163
F.2D 978, 980(C.A.2D CIR., N.Y.); STONEBREAKER V. SMYTH, 163 F.2D 498,
501, 502(C.A.4TH CIR., VA.); NUSSER V. ADERHOLD, 164 F.2D 127(C.A.5TH
CIR., GA.); MAKOWSKI V. BENSON, 158 F.2D 158(C.A.6TH CIR., MICH.);
UNITED STATES EX REL. ROSS V. NIERSTHEIMER, 159 F.2D 994(C.A.7TH CIR.,
ILL.); GUY V. UTECHT, 144 F.2D 913, 915(C.A.8TH CIR., MINN.); GORDON V.
SCUDDER, 163 F.2D 518(C.A.9TH CIR., CAL.); HERZOG V. COLPOYS, 79 U.S.
APP. D.C. 81, 143 F.2D 137, 138. 

FN33  SEE S. REP. NO. 1559, 80TH CONG., 2D SESS., P. 9 AND H.R. REP.
NO. 308, 80TH CONG., 1ST SESS., P. A180. 

FN34  SUBSEQUENT STATEMENTS BY JUDGE JOHN J. PARKER, WHO SERVED AS
CHAIRMAN OF THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES, COMMITTEE
ON HABEAS CORPUS, ARE INSTRUCTIVE. 

"  ...  THE THING IN MIND IN THE DRAFTING OF THIS SECTION WAS TO
PROVIDE THAT REVIEW OF STATE COURT ACTION BE HAD SO FAR AS POSSIBLE
ONLY BY THE SUPREME COURT OF THE UNITED STATES, WHOSE REVIEW OF SUCH
ACTION HAS HISTORICAL BASIS, AND THAT REVIEW NOT BE HAD BY THE LOWER
FEDERAL COURTS, WHOSE EXERCISE OF SUCH POWER IS UNSEEMLY AND LIKELY TO
BREED DANGEROUS CONFLICTS OF JURISDICTION.  ... 

"ONE OF THE INCIDENTS OF THE STATE REMEDY IS (THE) RIGHT TO APPLY TO
THE SUPREME COURT FOR CERTIORARI.  IF A PETITIONER HAS FAILED TO MAKE
SUCH APPLICATION AFTER THE REFUSAL OF THE STATE COURT TO RELEASE HIM,
HE CANNOT BE SAID TO HAVE EXHAUSTED THE REMEDIES AVAILABLE TO HIM UNDER
STATE PROCEDURE, PROVIDED HE HAS THE RIGHT TO APPLY AGAIN TO THE STATE
COURTS FOR RELIEF AS A BASIS FOR APPLICATION TO THE SUPREME COURT FOR
CERTIORARI.  ... 

"THE FACT THAT CERTIORARI FROM THE SUPREME COURT TO THE STATE COURT
MAY BE CALLED A FEDERAL REMEDY IS NOT DETERMINATIVE OF THE QUESTION
HERE INVOLVED.  THE CRUCIAL MATTER IS THAT PETITIONER STILL HAS A RIGHT
TO ATTACK IN THE COURTS OF THE STATE THE VALIDITY OF HIS CONVICTION
AND, UPON THE RECORD MADE IN SUCH ATTACK, TO PETITION THE HIGHEST COURT
OF THE LAND FOR A REVIEW.  SO LONG AS SUCH RIGHT REMAINS, HE DOES NOT
HAVE, AND OUGHT NOT HAVE, THE RIGHT TO ASK A REVIEW BY ONE OF THE LOWER
FEDERAL COURTS.  ...  "  PARKER, LIMITING THE ABUSE OF HABEAS CORPUS, 8
F.R.D. 171, 176-77. 

WADE V. MAYO, SUPRA, HAD NO EFFECT ON THE DISCUSSION OF SEC. 2254,
SINCE IT CAME DOWN TWO DAYS PRIOR TO THE ENACTMENT OF THE NEW CODE, TOO
LATE FOR CONSIDERATION. 

FN35  SEE H.R. REP. NO. 308, 80TH CONG., 1ST SESS., P. A180, AND
FINAL REVISER'S NOTE TO SEC. 2254. 

FN36  SEE NOTE 30, SUPRA.  COMPARE SEC. 2254, H.R. 3214, UNION
CALENDAR #140, H.R. REP. NO. 308, 80TH CONG., 1ST SESS., WITH SEC.
2254, H.R. 3214 IN SENATE, S. REP. NO. 1559, 80TH CONG., 2D SESS., P.
9. 

FN37  THE TWO EXCEPTIONS AT THE LAST OF THE FIRST PARAGRAPH PROVIDE
FOR PARTICULAR SITUATIONS IN THE STATES.  THE DEFINITION OF EXHAUSTION
IN THE LAST PARAGRAPH WAS MADE BY THE SENATE AT THE INSTANCE OF THE
JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES.  S. REP. NO. 1559, 80TH
CONG., 2D SESS., P. 9.  REPORT OF THE JUDICIAL CONFERENCE, SEPTEMBER
SESSION 1947, P. 17. 

H.R. 3214 HAD PERMITTED FEDERAL HABEAS CORPUS NOT ONLY WHERE STATE
REMEDIES HAD BEEN EXHAUSTED BUT WHERE "THERE IS NO ADEQUATE REMEDY
AVAILABLE IN" THE STATE COURT.  THE SENATE REPORT INFORMS US THAT THE
PURPOSE OF THE SENATE AMENDMENT WAS "TO SUBSTITUTE DETAILED AND
SPECIFIC LANGUAGE FOR THE PHRASE 'NO ADEQUATE REMEDY AVAILABLE.'  THAT
PHRASE IS NOT SUFFICIENTLY SPECIFIC AND PRECISE, AND ITS MEANING
SHOULD, THEREFORE, BE SPELLED OUT IN MORE DETAIL IN THE SECTION AS IS
DONE BY THE AMENDMENT."  S. REP. NO. 1559, 80TH CONG., 2D SESS., P.
10. 

FN38  COMPARE BOWEN, L.J., IN COOKE V. NEW RIVER CO., 38 CH. D. 56,
70-71:  "  ...  LIKE MY BROTHERS WHO SIT WITH ME, I AM EXTREMELY
RELUCTANT TO DECIDE ANYTHING EXCEPT WHAT IS NECESSARY FOR THE SPECIAL
CASE, BECAUSE I BELIEVE BY LONG EXPERIENCE THAT JUDGMENTS COME WITH FAR
MORE WEIGHT AND GRAVITY WHEN THEY COME UPON POINTS WHICH THE JUDGES ARE
BOUND TO DECIDE, AND I BELIEVE THAT OBITER DICTA, LIKE THE PROVERBIAL
CHICKENS OF DESTINY, COME HOME TO ROOST SOONER OR LATER IN A VERY
UNCOMFORTABLE WAY TO THE JUDGES WHO HAVE UTTERED THEM, AND ARE A GREAT
SOURCE OF EMBARRASSMENT IN FUTURE CASES."  COHENS V. VIRGINIA, 6
WHEAT.  264, 399-400; WRIGHT V. UNITED STATES, 302 U.S. 583, 593-594. 

FN39  SALINGER V. LOISEL, 265 U.S. 224, 230. 

FN40  EX PARTE ROYALL, 117 U.S. 241. 

FN41  SALINGER V. LOISEL, NOTE 39, SUPRA. 

FN42  EX PARTE HAWK, 321 U.S. 114, 117; HOUSE V. MAYO, 324 U.S. 42,
48; WHITE V. RAGEN, 324 U.S. 760, 764-65. 

FN43  DORSEY V. GILL, 80 U.S. APP. D.C. 9, 148 F.2D 857. 

FN44  SEE NOTE 32, SUPRA. 

FN45  WADE V. MAYO, 334 U.S. 672, 681. 

FN46  IN RE CUDDY, 131 U.S. 280; JOHNSON V. ZERBST, 304 U.S. 458,
468; WALKER V. JOHNSTON, 312 U.S. 275, 286; HAWK V. OLSON, 326 U.S.
271, 279. 

FN47  EX PARTE DARR, 84 OKLA. CR. 352, 182 P.2D 523. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE CLARK JOINS, CONCURS IN THE
JUDGMENT AND OPINION OF THE COURT, EXCEPT FOR ANY INDICATION IT MAY
CONTAIN THAT, ALTHOUGH THE REASONS FOR A DENIAL OF CERTIORARI ARE NOT
STATED, THEY NEVERTHELESS MAY BE INFERRED FROM THE RECORD.  HE BELIEVES
THAT THE NATURE OF THE PROCEEDING IS SUCH THAT, WHEN THE REASONS FOR A
DENIAL OF CERTIORARI ARE NOT STATED, THE DENIAL SHOULD BE DISREGARDED
IN PASSING UPON A SUBSEQUENT APPLICATION FOR RELIEF, EXCEPT TO NOTE
THAT THIS SOURCE OF POSSIBLE RELIEF HAS BEEN EXHAUSTED. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK JOINS, DISSENTING* . 

*(MR. JUSTICE JACKSON ALSO JOINED IN THIS OPINION.  SEE POST, P.
238.) 

THIS CASE CONCERNS THE EXERCISE BY THE DISTRICT COURTS OF THEIR
HABEAS CORPUS JURISDICTION ON BEHALF OF STATE PRISONERS WHEN A PETITION
FOR CERTIORARI TO REVIEW A STATE COURT'S DETERMINATION OF A FEDERAL
CLAIM WAS NOT FIRST BROUGHT IN THIS COURT.  IN THE GENERALITY OF
INSTANCES THE ISSUE IS WHETHER DENIAL OF CERTIORARI IS A PREREQUISITE
TO RESORT TO THE DISTRICT COURTS.  THE CASE THUS RAISES SERIOUS
QUESTIONS AFFECTING THE RELATIONS BETWEEN STATE AND FEDERAL AUTHORITIES
AS WELL AS BETWEEN THIS COURT AND THE LOWER FEDERAL COURTS.  MY VIEW IN
BRIEF IS THAT FEDERAL COURTS MUST WITHHOLD INTERFERENCE WITH STATE
CRIMINAL JUSTICE UNTIL EVERY OPPORTUNITY AVAILABLE IN THE STATE COURTS
FOR THE VINDICATION OF A FEDERAL RIGHT HAS BEEN EXHAUSTED.  WHETHER THE
STATE REMEDIES HAVE BEEN SO EXHAUSTED OFTEN INVOLVES ELUSIVE QUESTIONS
OF LOCAL LAW WITH WHICH DISTRICT JUDGES ARE MORE FAMILIAR THAN WE CAN
BE WITHOUT THE LIGHT THE LOWER COURTS AFFORD US.  THEREFORE, THE POWER
OF THE DISTRICT COURTS TO ISSUE A WRIT OF HABEAS CORPUS SHOULD NOT BE
BARRED SIMPLY BECAUSE A PETITION FOR CERTIORARI WAS NOT FIRST MADE IN
THIS COURT.  TO HOLD OTHERWISE IS TO DISREGARD THE SETTLED RULE THAT
DENIAL OF CERTIORARI HAS NO LEGAL SIGNIFICANCE OR, IN THE ALTERNATIVE,
IF DENIAL OF CERTIORARI REMAINS WITHOUT BEARING ON THE MERITS IN HABEAS
CORPUS AS IN OTHER CASES, TO REQUIRE THE STATE PRISONER TO GO THROUGH
THE MOTION OF SECURING A DENIAL IS TO COMMAND A GESTURE WHICH IS
MEANINGLESS TO HIM AND BURDENSOME TO THIS COURT.  IN ANY EVENT, TO
LEAVE THE DISTRICT COURTS IN THE DARK AS TO WHAT A DENIAL OF CERTIORARI
MEANS IN HABEAS CORPUS CASES IS NOT CONSISTENT WITH THE FAIR
ADMINISTRATION OF JUSTICE. 

1.  THE COURSE OF OUR DECISIONS ON THE POWER OF THE LOWER FEDERAL
COURTS TO ENTERTAIN AN APPLICATION FOR A WRIT OF HABEAS CORPUS ON
BEHALF OF STATE PRISONERS HAS NOT RUN SMOOTH.  THERE IS A REASON.  THIS
SEEMINGLY TECHNICAL PROBLEM OF JURISDICTION CONCERNS THE RELATION OF
THE UNITED STATES AND THE COURTS OF THE UNITED STATES TO THE STATES AND
THE COURTS OF THE STATES.  UNDER ANY CIRCUMSTANCES THIS "IS A VERY
DELICATE MATTER THAT HAS OCCUPIED THE THOUGHTS OF STATESMEN AND JUDGES
FOR A HUNDRED YEARS  ...  "  MEMORANDUM OF MR. JUSTICE HOLMES, AUGUST
20, 1927, DENYING AN APPLICATION FOR STAY PENDING A PETITION FOR
CERTIORARI.  5 THE SACCO-VANZETTI CASE 5516. 

PRIOR TO THE CIVIL WAR, HABEAS CORPUS WAS AVAILABLE IN THE UNITED
STATES COURTS, BARRING LIMITED EXCEPTIONS, ONLY FOR THOSE IN FEDERAL
CUSTODY.  THE ACT OF FEBRUARY 5, 1867, EXTENDED THE POWER OF THE UNITED
STATES COURTS TO GRANT WRITS OF HABEAS CORPUS TO "ALL CASES WHERE ANY
PERSON MAY BE RESTRAINED OF HIS  ...  LIBERTY IN VIOLATION OF THE
CONSTITUTION, OR OF ANY TREATY OR LAW OF THE UNITED STATES  ...  "  14
STAT. 385.  A CONFLICT BETWEEN STATE AND FEDERAL AUTHORITIES IN
RELATION TO THE ADMINISTRATION OF CRIMINAL JUSTICE TOUCHES THAT "VERY
DELICATE MATTER" AT ITS MOST SENSITIVE POINT.  THE ACT OF 1867 OPENED
WIDE THE DOOR TO THAT CONFLICT.  IT HAS BECOME INTENSIFIED DURING THE
LAST TWENTY YEARS BECAUSE OF THE INCREASING SUBJECTION OF STATE
CONVICTIONS TO FEDERAL JUDICIAL REVIEW THROUGH THE EXPANDED CONCEPT OF
DUE PROCESS.  SEE, E.G., POWELL V. ALABAMA, 287 U.S. 45, AND MOONEY V.
HOLOHAN, 294 U.S. 103.  IT OUGHT NOT TO BE TOO SURPRISING, THEREFORE,
THAT THE FULL IMPLICATIONS OF FEDERAL RESTRICTIONS UPON THE FREE RANGE
OF A STATE'S CRIMINAL JUSTICE HAVE TAKEN TIME TO UNFOLD. 

2.  DECISIONS ON MATTERS OF PROCEDURE WITHIN THE COURT'S CONTROL
OUGHT NOT TO BE LIKE SHIFTING SAND.  QUICK FLUCTUATIONS IN THEM SHOULD
BE AVOIDED UNLESS A RULE OF PRACTICE HAS PROVEN ITSELF MISCHIEVOUS IN
PRACTICE.  THE REAL QUESTION BEFORE US IN THIS CASE IS WHETHER WADE V.
MAYO, 334 U.S. 672, SHOULD BE OVERRULED.  WHETHER THIS OVERRULING IS TO
BE DONE FORTHRIGHTLY BY TWO WORDS SAYING THE CASE "IS OVERRULED" OR THE
OVERRULING IS EUPHEMISTICALLY DONE BY FIFTEEN WORDS HARDLY CHANGES THE
FACT.  RESPECT FOR AN EXPLICIT ADJUDICATION ON A MATTER OF PROCEDURE
VERY RECENTLY RENDERED AFTER THE FULLEST CONSIDERATION, AS WELL AS THE
SOUNDNESS OF THE DECISION, SHOULD LEAD US TO ADHERE TO WADE V. MAYO. 
3.  THE WEIGHT WHICH ATTACHES TO A DECISION OF THIS COURT PARTICULARLY
ON MATTERS OF PRACTICE IS NATURALLY ENOUGH AFFECTED BY THE
CIRCUMSTANCES ATTENDING IT.  APART FROM THE INTRINSIC JUSTIFICATION OF
WADE V. MAYO ON GROUNDS OF POLICY, TO WHICH I SHALL SHORTLY ADVERT,
THAT DECISION WAS A PRODUCT OF THE DELIBERATIVE PROCESS AT ITS
WEIGHTIEST.  ON ORIGINAL SUBMISSION IN OCTOBER, 1947, AND FULL
CONSIDERATION BY THE COURT, THE CASE WAS RESTORED TO THE DOCKET IN
NOVEMBER, 1947, WAS RESUBMITTED ON MARCH 9, 1948, RECEIVED THOROUGH
RECONSIDERATION BY THE COURT, AND AFTER LONG INCUBATION WAS DECIDED ON
JUNE 14, 1948.  THE PROCEDURAL ISSUE WHICH RECEIVED THIS UNUSUAL
ATTENTION WAS THUS PHRASED IN THE COURT'S OPINION: 

"WHETHER IT WAS PROPER FOR A FEDERAL DISTRICT COURT TO ENTERTAIN A
HABEAS CORPUS PETITION FILED BY A STATE PRISONER WHO, HAVING SECURED A
RULING FROM THE HIGHEST STATE COURT ON HIS FEDERAL CONSTITUTIONAL
CLAIM, HAD FAILED TO SEEK A WRIT OF CERTIORARI IN THIS COURT."  334
U.S. AT 674-75. 

THIS IS THE WAY THE ISSUE WAS FRAMED IN THE DISSENTING OPINION: 

"THE FIRST QUESTION IN THIS CASE IS WHETHER WADE'S FAILURE TO BRING A
WRIT OF CERTIORARI TO THIS COURT FROM THE JUDGMENT OF THE FLORIDA
SUPREME COURT IN HIS STATE HABEAS CORPUS PROCEEDING SHOULD AFFECT HIS
EFFORT TO OBTAIN RELEASE THROUGH A FEDERAL WRIT OF HABEAS CORPUS.  OR,
TO REPHRASE THE PROBLEM, SHOULD CERTIORARI TO THIS COURT BE CONSIDERED
A PART OF THE STATE REMEDY FOR PURPOSES OF THE WELL-RECOGNIZED DOCTRINE
OF EXHAUSTION OF STATE REMEDIES?"  334 U.S. AT 686. 

THE PROBLEM AS REPHRASED IN THE DISSENT STATED WITH PRECISION THE
DECISIVE INQUIRY.  RELIEF FROM A FEDERAL COURT CANNOT COME UNTIL
CORRECTIVE STATE PROCESS TO VINDICATE THE CLAIMED FEDERAL RIGHT IS
UNAVAILABLE.  THIS HAS BEEN SO EVER SINCE EX PARTE ROYALL, 117 U.S.
241.  THEREFORE, IF THE "STATE REMEDIES" WHICH MUST BE EXHAUSTED
INCLUDE AN APPLICATION FOR REVIEW OF A STATE COURT'S DECISION BY OUR
DISCRETIONARY WRIT OF CERTIORARI, IT WOULD BE PREMATURE FOR A DISTRICT
COURT TO ENTERTAIN A PETITION FOR HABEAS CORPUS BEFORE SUCH
APPLICATION.  THAT QUESTION - WHETHER A PETITION FOR CERTIORARI IS TO
BE DEEMED PART OF THE "STATE REMEDIES" - HAD NEVER BEEN CANVASSED BY
THIS COURT.  THE COURT HAD MADE SOME UNCRITICAL ASSERTIONS ABOUT IT AND
IN A MOMENT I SHALL DEAL WITH THEM.  BUT THE PROBLEM HAD NEVER BEEN
CRITICALLY ANALYZED UNTIL THE ISSUE BECAME DETERMINATIVE OF THE
DECISION IN WADE V. MAYO. 

4.  THE ANSWER WHICH THE DISSENT GAVE TO THE PROBLEM DETERMINED THE
DISSENT.  IT CONCLUDED "THAT CERTIORARI SHOULD BE CONSIDERED A PART OF
THE STATE PROCEDURE FOR PURPOSES OF HABEAS CORPUS."  334 U.S. AT 689. 
THE COURT'S ANALYSIS OF THE PROBLEM LED TO THE CONTRARY RESULT.  WHILE
FULLY ACKNOWLEDGING THE PRINCIPLE THAT STATE REMEDIES MUST BE EXHAUSTED
BEFORE RELIEF CAN BE SOUGHT IN A FEDERAL COURT, IT REJECTED THE NOTION
THAT AN APPLICATION TO THIS COURT FOR REVIEW BY CERTIORARI CAN BE
DEEMED PART OF THE STATE REMEDIES. 

5.  NOW THE COURT LIKEWISE REJECTS THE BASIS OF THE DISSENT IN WADE
V. MAYO - THAT A PETITION FOR CERTIORARI IS TO BE DEEMED PART OF STATE
REMEDIES AND AS SUCH MUST BE EXHAUSTED.  BUT IT RETAINS THE CONCLUSION
WHICH WAS DRAWN FROM THE REJECTED PREMISE.  IT DOES SO IN COMPLETE
DISREGARD OF OUR REPEATED INSISTENCE REGARDING THE SIGNIFICANCE OF
DENIAL OF PETITIONS FOR CERTIORARI, REFLECTING THE NARROW RANGE OF
INQUIRY NOT GOING TO THE MERITS WHICH ALONE IS OPEN ON SUCH PETITIONS. 
LIKEWISE DISREGARDED ARE PRACTICAL CONSIDERATIONS RELATING TO THE
ADMINISTRATION OF THIS COURT'S BUSINESS, PARTICULARLY THE INHERENT
DIFFICULTIES OF ASCERTAINING IN THIS COURT IN THE FIRST INSTANCE THE
AVAILABLE REMEDIES UNDER STATE PROCEDURE, WHICH IS A THRESHOLD QUESTION
IN DETERMINING WHETHER STATE REMEDIES HAVE BEEN EXHAUSTED. 

6.  OF COURSE A STATE PRISONER CAN COME HERE AND SEEK REVIEW, BY WAY
OF CERTIORARI, OF A DENIAL BY THE STATE COURT OF HIS ALLEGED FEDERAL
CONSTITUTIONAL RIGHT.  THE COURT MAY GRANT HIS PETITION AND DECIDE THE
ISSUE AGAINST HIM.  IF THE PETITION IS GRANTED AND THE STATE'S VIEW OF
HIS FEDERAL CLAIM IS SUSTAINED HERE, HE MAY STILL SUE OUT A WRIT IN THE
DISTRICT COURT.  THE DOCTRINE OF RES JUDICATA IS INAPPLICABLE.  IN THE
SACCO-VANZETTI CASE, APPLICATION WAS FIRST MADE TO THE CIRCUIT JUSTICE,
THEN TO THE SENIOR CIRCUIT JUDGE, AND THEREAFTER TO THE DISTRICT
JUDGE.  SEE 5 THE SACCO-VANZETTI CASE 5532, 5533, 5534.  TO BE SURE,
PRIOR DENIALS CARRY CONSIDERABLE WEIGHT IN DISPOSING OF A LATER
APPLICATION, BUT MERELY BY WAY OF SAFEGUARD AGAINST "ABUSIVE USE" OF
THE WRIT WHILE FULLY RESPECTING "ITS RECOGNIZED STATUS AS A PRIVILEGED
WRIT OF FREEDOM."  SALINGER V. LOISEL, 265 U.S. 224, 232. 

OUR PROBLEM IS NOT WHETHER A PETITIONER MAY COME HERE AFTER
EXHAUSTING HIS STATE REMEDIES BUT WHETHER HE MUST COME HERE AND HAVE
HIS PETITION FOR CERTIORARI DENIED AS A CONDITION TO INVOKING A FEDERAL
COURT'S JURISDICTION ON HABEAS CORPUS.  AN ANSWER TO THIS QUESTION
NECESSARILY TURNS ON THE SIGNIFICANCE OF A DENIAL OF CERTIORARI.  MR.
JUSTICE REED'S OPINION MAKES A DELPHIC DISPOSITION OF THIS ISSUE, WHICH
WILL INEVITABLY CREATE CONFUSION AMONG FEDERAL JUDGES.  IT SURELY DOES
NOT MAKE FOR CLARITY OF DOCTRINE NOR DOES IT PROMOTE THE PRACTICAL
ADMINISTRATION OF JUSTICE TO SUGGEST THAT DENIAL OF CERTIORARI MAY BE
GIVEN WEIGHT UPON LATER APPLICATION FOR HABEAS CORPUS IN LOWER FEDERAL
COURTS, BUT TO REFUSE TO BE EXPLICIT.  ON THE BASIS OF THIS
PRONOUNCEMENT, HOW ARE SOME 200 DISTRICT JUDGES TO DISPOSE OF PETITIONS
FOR HABEAS CORPUS BROUGHT BY STATE PRISONERS AFTER DENIAL OF CERTIORARI
HERE?  THE OPINION IN EFFECT INVITES THEM TO TAKE INTO CONSIDERATION
THE PRIOR DENIAL HERE, BUT THEN THREATENS THEM WITH POSSIBLE REVERSAL
FOR SO DOING. 

THE STATE OF UNCERTAINTY IN WHICH THE DISTRICT COURTS ARE LEFT MUST
LEAD TO CONFLICTING INTERPRETATIONS OF OUR UNDISCLOSED MEANING.  SOME
JUDGES WILL INFER THAT DENIAL OF CERTIORARI BEARS ON THE EXERCISE OF
HABEAS CORPUS JURISDICTION.  OTHERS WILL FEEL THEY SHOULD ADHERE TO
THIS COURT'S OLD AVOWALS CONCERNING DENIAL UNTIL THEY ARE TOLD
EXPLICITLY TO THE CONTRARY.  MOST CONFUSING OF ALL, MANY JUDGES, AS IS
THE WAY OF JUDGES, ARE UNLIKELY TO RESOLVE THE AMBIGUITY DECISIVELY. 
INSTEAD, THEY WILL TAKE AN EQUIVOCAL POSITION IN DENYING A WRIT OF
HABEAS CORPUS, RELYING IN PART ON THE DISCRETIONARY ASPECT OF HABEAS
CORPUS AND IN PART ON THE FACT THAT THIS COURT DENIED CERTIORARI.  SUCH
A DISPOSITION WILL EITHER LEAD LAWYERS TO BE DUBIOUS ABOUT PRESSING AN
APPEAL, OR, IF THE DISTRICT COURT'S DECISION BE APPEALED, SUCH A BLEND
OF REASONS IN DENYING THE WRIT IS NOT LIKELY TO BE OVERTURNED BY A
COURT OF APPEALS, AND IT WOULD BE MOST NATURAL FOR THIS COURT NOT TO
GRANT CERTIORARI TO REVIEW SUCH A CASE.  THE SIGNIFICANCE OF A DENIAL
OF CERTIORARI GIVEN BY THE LOWER COURTS WOULD NOT BE PRESENTED IN SUCH
AN UNENTANGLED FORM AS WOULD COMMEND ITSELF ACCORDING TO NORMAL
CRITERIA FOR A GRANT OF CERTIORARI.  ADJUDICATION BY THIS COURT OF THE
SPECIFIC ISSUE WILL THUS BE GREATLY DELAYED.  THE RESULT MAY WELL BE
THAT DENIAL OF CERTIORARI WOULD IN PRACTICE ATTAIN A SIGNIFICANCE WHICH
THE COURT IS UNWILLING TO GIVE IT BY CANDID ADJUDICATION. 

IT IS, OF COURSE, ONE OF OUR FUNCTIONS TO RESOLVE CONFLICTS AMONG THE
LOWER COURTS.  BUT IT IS NOT OUR DUTY TO STIMULATE SUCH CONFLICTS. 
ESPECIALLY WITH REGARD TO HABEAS CORPUS SHOULD WE AVOID SUCH
AMBIGUITY.  "THE GREAT WRIT OF LIBERTY" OUGHT NOT TO BE TREATED AS
THOUGH WE WERE PLAYING A GAME.  WHEN A QUESTION AFFECTING THE HABEAS
CORPUS JURISDICTION OF THE DISTRICT COURTS IS BEFORE US, IT IS OUR DUTY
TO GUIDE THE DISTRICT COURTS AND NOT REFUSE TO GUIDE THEM.  WE CANNOT
AVOID AN ANSWER ON THE GROUND THAT THE QUESTION IS NOT BEFORE THE
COURT.  OPINIONS ARE REQUIRED IN OUR LEGAL SYSTEM IN ORDER THAT THE
REASONING WHICH JUSTIFIES A CONCLUSION MAY BE MADE MANIFEST.  THE
DISCLOSURE OF THE REASONING BY WHICH A CONCLUSION IS REACHED CANNOT
REMOTELY BE DEEMED DICTUM.  A DECISION IMPLIES THE PROCESS OF REASONING
WHICH REQUIRES IT.  IT IS ESSENTIAL TO BE CLEAR ABOUT WHAT DENIAL OF
CERTIORARI MEANS BEFORE DETERMINING WHETHER A PETITION FOR CERTIORARI
IS PREREQUISITE TO THE EXERCISE OF HABEAS CORPUS JURISDICTION BY A
DISTRICT COURT.  SURELY IT IS NECESSARY TO CONSIDER WHAT A PROCEDURAL
REQUIREMENT MEANS BEFORE MAKING IT A REQUIREMENT. 

7.  THE SIGNIFICANCE OF A DENIAL OF A PETITION FOR CERTIORARI OUGHT
NO LONGER TO REQUIRE DISCUSSION.  THIS COURT HAS SAID AGAIN AND AGAIN
AND AGAIN THAT SUCH A DENIAL HAS NO LEGAL SIGNIFICANCE WHATEVER BEARING
ON THE MERITS OF THE CLAIM.  THE DENIAL MEANS THAT THIS COURT HAS
REFUSED TO TAKE THE CASE.  IT MEANS NOTHING ELSE.  THE STATE COURT'S
JUDGMENT IS LEFT UNDISTURBED WITHOUT ANY LEGAL REINFORCEMENT WHATEVER
OF THE VIEWS WHICH THE STATE COURT EXPRESSED.  COUNSEL AT THE BAR HAVE
FREQUENTLY BEEN STOPPED FOR DRAWING COMFORT OUT OF SUCH A DENIAL AND
THE COURT'S OPINIONS HAVE INDICATED IMPATIENCE WITH FAILURE TO
RECOGNIZE THAT THE ONLY THING THAT SUCH A DENIAL IMPORTS IS THAT THERE
WERE NOT FOUR MEMBERS OF THE COURT WHO DEEMED IT DESIRABLE, FOR THEIR
RESPECTIVE REASONS, TO REVIEW A DECISION OF THE LOWER COURT.  EVEN
BEFORE THE JUDICIARY ACT OF 1925 SO VASTLY EXTENDED THIS COURT'S
CERTIORARI JURISDICTION, THE COURT SAID:  "THE DENIAL OF A WRIT OF
CERTIORARI IMPORTS NO EXPRESSION OF OPINION UPON THE MERITS OF THE
CASE, AS THE BAR HAS BEEN TOLD MANY TIMES."  UNITED STATES V. CARVER,
260 U.S. 482, 490.  THIS NOTE OF IMPATIENCE HAS BEEN SOUNDED
REPEATEDLY. 

THE WHOLLY NEGATIVE MEANING OF A DENIAL OF CERTIORARI IS NOT SO
MERELY BECAUSE WE HAVE SAID IT. WE HAVE SAID IT BECAUSE IT MUST BE SO
UNLESS THE WHOLE CONCEPTION OF CERTIORARI IN RELATION TO THE BUSINESS
OF THIS COURT IS TO BE RADICALLY TRANSFORMED.  SUCH A REVOLUTIONARY
CHANGE CANNOT JUSTIFIABLY BE TAKEN IN RELATION TO ONE LARGE GROUP OF
CASES WITHOUT DRASTIC REVISION OF THE COURT'S TREATMENT OF SUCH CASES,
WITH FAR-REACHING CONSEQUENCES TO THE BUSINESS OF THE COURT AND ITS
PROPER DISCHARGE. 

NOTHING IS MORE BASIC TO THE FUNCTIONING OF THIS COURT THAN AN
UNDERSTANDING THAT DENIAL OF CERTIORARI IS OCCASIONED BY A VARIETY OF
REASONS WHICH PRECLUDES THE IMPLICATION THAT WERE THE CASE HERE THE
MERITS WOULD GO AGAINST THE PETITIONER.  PETITIONS MAY HAVE BEEN DENIED
BECAUSE, EVEN THOUGH SERIOUS CONSTITUTIONAL QUESTIONS WERE RAISED, IT
SEEMED TO AT LEAST SIX MEMBERS OF THE COURT THAT THE ISSUE WAS EITHER
NOT RIPE ENOUGH OR TOO MORIBUND FOR ADJUDICATION; THAT THE QUESTION HAD
BETTER AWAIT THE PERSPECTIVE OF TIME OR THAT TIME WOULD SOON BURY THE
QUESTION OR, FOR ONE REASON OR ANOTHER, IT WAS DESIRABLE TO WAIT AND
SEE; OR THAT THE CONSTITUTIONAL ISSUE WAS ENTANGLED WITH
NONCONSTITUTIONAL ISSUES THAT RAISED DOUBT WHETHER THE CONSTITUTIONAL
ISSUE COULD BE EFFECTIVELY ISOLATED; OR FOR VARIOUS OTHER REASONS NOT
RELATING TO THE MERITS.  DIVERGENT AND CONTRADICTORY REASONS OFTEN
OPERATE AS TO THE SAME PETITION AND LEAD TO A COMMON VOTE OF DENIAL. 
THE WANT OF EXPLANATIONS FOR DENIALS OF CERTIORARI IS IN PART DUE TO
THE FACT THAT A COLLECTIVE REASON FREQUENTLY COULD NOT BE GIVEN.  TO
SUGGEST THAT A DISTRICT COURT CAN DETERMINE THE SIGNIFICANCE TO BE
ATTACHED TO THIS COURT'S DENIAL OF CERTIORARI BY AN EXAMINATION OF THE
RECORD ON CERTIORARI HERE IS TO OFFER THE DISTRICT COURTS DARKNESS
WITHOUT ARIADNE'S THREAD.  PARTICULARLY IS THIS TRUE IN CASES SOUGHT TO
BE BROUGHT HERE FROM THE STATE COURTS IN WHICH STATE AND FEDERAL
GROUNDS ARE FREQUENTLY ENTANGLED AND AN UNAMBIGUOUS FEDERAL QUESTION
OFTEN DOES NOT EMERGE FROM THE RECORD. 

TO ATTACH SIGNIFICANCE TO A DENIAL OF A CERTIORARI PETITION REGARDING
THE MERITS OF THE ISSUES RAISED BY THE PETITION WOULD BE TO TRANSFORM A
MECHANISM FOR KEEPING CASES OUT OF THIS COURT INTO A MEANS OF BRINGING
THEM IN.  IT WOULD CONTRADICT ALL THAT LED TO THE ADOPTION OF
CERTIORARI JURISDICTION AND WOULD REJECT THE WHOLE COURSE OF THE
COURT'S TREATMENT OF SUCH PETITIONS, BOTH IN PRACTICE AND PROFESSION. 
FOR IF DENIAL DOES IMPORT AN EXPRESSION OF OPINION UPON THE MERITS OF
THE CASE, THEN WE MUST DEAL WITH THE MERITS OF THE CASE.  DURING THE
LAST FOUR FISCAL YEARS THE DISTRICT COURTS THROUGHOUT THE COUNTRY HAD
ANNUALLY FROM 500 TO 600 HABEAS CORPUS CASES BROUGHT BY PETITIONERS
UNDER STATE CUSTODY.  TO OVERRULE WADE V. MAYO AND TO MAKE IT THE DUTY
OF THIS COURT TO PASS ON THE MERITS OF ANYTHING LIKE THE NUMBER OF
THESE CASES WHICH WOULD HAVE TO BE BROUGHT HERE ON PETITIONS FOR
CERTIORARI FROM THE STATE COURTS WOULD THROW AN ALMOST IMPOSSIBLE
BURDEN UPON THE COURT.  FN1 

8.  WE CERTAINLY OUGHT NOT TO CONDITION THE POWER OF THE LOCAL
DISTRICT COURT TO ENTERTAIN A PETITION FOR HABEAS CORPUS ON A PRIOR
DENIAL OF A PETITION FOR CERTIORARI HERE IF SUCH DENIAL CARRIES NO
OTHER SIGNIFICANCE THAN DOES THE DENIAL OF CERTIORARI IN ANY OTHER
CLASS OF CASES.  MEANINGLESS MULTIPLICATION OF STEPS IN THE LEGAL
PROCESS CAN HARDLY BE DEEMED A VIRTUE IN JUDICIAL ADMINISTRATION.  NOR
WOULD IT BE MORE RESPECTFUL OF THE DIGNITY OF A STATE COURT FOR THE
DISTRICT COURT TO DISAGREE WITH THE STATE COURT'S VIEW OF FEDERAL LAW
IF SUCH DISAGREEMENT CAME AFTER THIS COURT HAD DENIED CERTIORARI RATHER
THAN BEFORE. 

IT IS SUGGESTED, HOWEVER, THAT THIS COURT SHOULD HAVE THE FIRST
OPPORTUNITY TO CONSIDER WHETHER A STATE COURT WAS RIGHT IN HAVING
DENIED A CONSTITUTIONAL CLAIM - WHAT HAS BEEN COLLOQUIALLY CALLED A
"FIRST-CRACK" POLICY.  THE MOST WEIGHTY CONSIDERATIONS OF PRACTICAL
ADMINISTRATION COUNSEL AGAINST IT.  THE BURDEN OF THE COURT'S VOLUME OF
BUSINESS WILL BE GREATLY INCREASED, NOT MERELY BECAUSE A GREATER NUMBER
OF CERTIORARI PETITIONS WOULD BE FILED, BUT BY REASON OF THE EFFECTIVE
PRESSURE TOWARD GRANTING PETITIONS MORE FREELY.  FOR IF THE "FIRST
CRACK" POLICY HAS ANY VALIDITY, IT WOULD REQUIRE THAT EVERY DOUBT BE
RESOLVED IN FAVOR OF GRANTING CERTIORARI, RATHER THAN LEAVING THE CASE
TO THE DISTRICT COURTS.    MOREOVER, STATE COURT DECISIONS INVOLVING
DENIAL OF FEDERAL CLAIMS MADE IN COLLATERAL ATTACK ON A CONVICTION ARE
FREQUENTLY DECISIONS BASED MERELY ON ALLEGATIONS IN THE PLEADINGS. 
THIS COURT CAN DISPOSE OF THEM ONLY AS A MATTER OF ABSTRACT PLEADING. 
THE DISTRICT COURTS, ON THE OTHER HAND, CAN HOLD HEARINGS WHEN DEEMED
APPROPRIATE, CONSIDER ALLEGATIONS ON THEIR MERITS IF THEY ARE AT ALL
SUBSTANTIAL AND DISPOSE OF WHAT OFTEN TURN OUT TO BE UNMERITORIOUS
CLAIMS.  THUS, THE IMPACT UPON FEDERAL-STATE RELATIONSHIPS OF REVERSALS
OF STATE COURT DECISIONS, WHICH THIS COURT MAY NOT BE ABLE TO AVOID
WHEN IT IS LIMITED TO THE PLEADINGS, MAY WELL BE AVOIDED BY LOWER
FEDERAL COURTS, LOOKING BEYOND PAPER ALLEGATIONS TO THE MERITS. 

9.  THERE IS STILL ANOTHER REASON WHY IT MAKES AGAINST, NOT FOR,
SOUND ADMINISTRATION OF JUSTICE TO BAR EXERCISE BY A DISTRICT COURT OF
ITS HABEAS CORPUS JURISDICTION MERELY BECAUSE THE DISCRETIONARY POWER
OF THIS COURT TO REVIEW A STATE COURT DECISION HAS NOT BEEN INVOKED. 
IT IS THAT CASES INVOLVING FEDERAL CLAIMS BY STATE PRISONERS SO
FREQUENTLY INVOLVE QUESTIONS OF STATE LAW WHICH MUST BE ANSWERED BEFORE
THE FEDERAL ISSUE CAN BE REACHED.  STATE QUESTIONS ARE OF TWO KINDS:
(1) DID THE ADVERSE STATE RULING EXHAUST THE PRISONER'S AVAILABLE STATE
REMEDIES?  (2) MAY THE STATE COURT'S JUDGMENT BE DEEMED TO REST SOME
STATE GROUND? 

NOTHING STANDS OUT MORE PROMINENTLY IN THE COURT'S EXPERIENCE WITH
THESE CASES THAN THE DOUBTS AND DIFFICULTIES IN ASCERTAINING THE LAW
CONTROLLING LOCAL PRACTICE AND LOCAL REMEDIES.  THUS, ACCORDING TO THE
PROCEDURE OF ONE STATE A CONSTITUTIONAL ISSUE LIKE THAT IN MOONEY V.
HOLOHAN, SUPRA, MUST BE RAISED BY HABEAS CORPUS, NOT CORAM NOBIS, WHILE
IN ANOTHER STATE ONLY CORAM NOBIS IS AVAILABLE, NOT HABEAS CORPUS. 
ALTHOUGH A STATE COURT MAY HAVE FELT THAT IT WROTE CLEARLY, WE MAY NOT
BE ABLE TO READ CLEARLY OR AT LEAST IN UNISON; SOME MEMBERS OF THE
COURT READ ONE WAY, SOME ANOTHER.  SEE, E.G., NEW YORK EX REL. WHITMAN
V. WILSON, 318 U.S. 688; MORHOUS V. SUPREME COURT OF NEW YORK, 293 N.Y.
131, 56 N.E.2D 79; PEOPLE V. SADNESS, 300 N.Y. 69, 89 N.E.2D 188. 

THE DIFFICULTIES IN DETERMINING EXHAUSTION OF STATE REMEDIES ARE
ILLUSTRATED BY A LITIGATION ANOTHER STAGE OF WHICH WAS REACHED BY
DENIAL OF CERTIORARI LAST MONDAY.  HAWK V. NEBRASKA, 339 U.S. 923.  AT
AN EARLIER DATE, THE SUPREME COURT OF NEBRASKA HAD AFFIRMED A DENIAL OF
HABEAS CORPUS BY THE LOWER STATE COURT.  HAWK V. OLSON, 145 NEB. 306,
16 N.W.2D 181.  THIS COURT GRANTED CERTIORARI AND REVERSED ON THE
MERITS, ACTING ON THE ASSUMPTION THAT A FEDERAL RIGHT HAD BEEN
DISREGARDED, 326 U.S. 271, DESPITE OUR EARLIER STATEMENT IN EX PARTE
HAWK, 321 U.S. 114, 116, TO THE EFFECT THAT STATE REMEDIES COULD NOT BE
DEEMED EXHAUSTED IN NEBRASKA UNTIL CORAM NOBIS HAD BEEN ATTEMPTED.  ON
THE REMAND, THE NEBRASKA SUPREME COURT ADVISED US THAT WE HAD
MISCONCEIVED ITS OPINION AND MISUNDERSTOOD LOCAL PROCEDURE - THAT IT
HAD NOT DENIED A FEDERAL CLAIM OUT OF HAND BUT DECIDED ONLY THAT HABEAS
CORPUS WAS NOT THE PROPER PROCEDURAL ROAD TO TAKE IN NEBRASKA.  146
NEB. 875, 22 N.W.2D 136.  HAWK THEN APPLIED FOR A WRIT OF HABEAS CORPUS
IN THE FEDERAL DISTRICT COURT FOR NEBRASKA, BUT WAS TOLD THAT HE MUST
FIRST TRY CORAM NOBIS IN THE STATE COURTS.  66 F.SUPP.  195, AFFIRMED
SUB NOM. HAWK V. JONES, 160 F.2D 807.  THE DISTRICT JUDGE SHOWED HIS
KNOWLEDGE OF HIS LOCAL LAW, FOR WHEN THE FEDERAL CLAIM WAS ASSERTED BY
CORAM NOBIS IT WAS HEARD ON THE MERITS, DECIDED BY A NEBRASKA TRIAL
COURT AGAINST THE PETITIONER AND AFFIRMED BY THE NEBRASKA SUPREME
COURT, HAWK V. STATE, 151 NEB. 717, 39 N.W.2D 561. 

THE HAWK LITIGATION ILLUSTRATES THE IMPORTANCE OF THE DOCTRINE OF
EXHAUSTION OF STATE REMEDIES.  THAT DOCTRINE IS VITAL TO THE HARMONIOUS
FUNCTIONING OF TWO JUDICIAL SYSTEMS WHERE ONE IS SUBORDINATE TO THE
OTHER.  BUT THE LITIGATION ALSO SHOWS THAT WASTE AND FRICTION ARE BOUND
TO BE PROMOTED IF REVIEW OF STATE COURT DECISIONS IN THIS FIELD WILL
HAVE TO COME HERE INITIALLY.  WE ARE DEALING WITH ELUSIVE AND
TREACHEROUS LOCAL LEGAL MATERIALS WHICH IN THEIR NATURE ARE NOT WITHIN
THE SPECIAL COMPETENCE OF THIS COURT.  SUCH MATERIALS LOOK ONE WAY IF
ONE EXAMINES ONLY THE DEAD LETTER OF PRINT.  BUT TO ONE BROUGHT UP
WITHIN THE LOCAL SYSTEM THEY CARRY MEANING WHICH NEVER CAN BE GOT FROM
BOOKS.  SEE DIAZ V. GONZALEZ, 261 U.S. 102, 106.  THE SURE-FOOTED
MANNER IN WHICH THE FEDERAL DISTRICT JUDGE DEALT WITH NEBRASKA
PROCEDURE IN HAWK V. OLSON, SUPRA, INDICATES THAT HE WOULD NOT HAVE
MADE THE ERROR INTO WHICH THIS COURT FELL.  THE NEBRASKA SITUATION IS
REPRESENTATIVE OF THE DIFFICULTIES AND DOUBTS THAT THIS COURT HAS
ENCOUNTERED AGAIN AND AGAIN IN REGARD TO THE LOCAL REMEDIES AVAILABLE. 
THE MATTER COMES PECULIARLY WITHIN THE RULE OF WISDOM, OFTEN APPLIED BY
THIS COURT, WHEREBY QUESTIONS OF LOCAL LAW AND LOCAL PRACTICES WILL NOT
BE DECIDED HERE BUT WILL BE SUBMITTED TO THE KNOWLEDGEABLE VIEWS OF
FEDERAL JUDGES IN THE VARIOUS LOCALITIES.  SEE GARDNER V. NEW JERSEY,
329 U.S. 565, 583, AND CASES CITED.  THIS RULE RESPECTS ALL THE
CONSIDERATIONS THAT PRECLUDE INTERVENTION BY A FEDERAL COURT UNTIL THE
STATE COURTS HAVE FULLY ACTED. 

BURKE V. GEORGIA, 338 U.S. 941, IS ANOTHER ADMIRABLE ILLUSTRATION OF
WHY WE SHOULD NOT REQUIRE CASES RAISING A DUBIOUS CONSTITUTIONAL
QUESTION AS TO THE VALIDITY OF STATE CONVICTIONS TO BE BROUGHT HERE
BEFORE HABEAS CORPUS IS SOUGHT IN THE DISTRICT COURTS.  THAT WE DENIED
CERTIORARI "WITHOUT PREJUDICE" TO FUTURE PROCEEDINGS IN THE DISTRICT
COURT CARRIED NO LEGAL SIGNIFICANCE.  FN2  THE CASE MERELY DEMONSTRATES
HOW FREQUENTLY IN THIS SITUATION PRELIMINARY QUESTIONS OF STATE
PROCEDURE AND STATE COURT JURISDICTION ARE INVOLVED.  INSTEAD OF
ALLOWING THESE LOCAL ISSUES TO BE CANVASSED INITIALLY IN THE DISTRICT
COURTS, IT IS NOW PROPOSED TO DEAL WITH CASES LIKE BURKE V. GEORGIA BY
REQUIRING THAT THEY BE BROUGHT HERE ENVELOPED IN THE FOG OF STATE
PROCEDURAL LAW AND THEN LEAVING IT TO THE DISTRICT COURTS TO LIFT THE
FOG AFTER WE HAVE CONCLUDED THAT IT IS TOO THICK FOR US TO PIERCE. 
SUCH PROCEDURE, I SUBMIT, WOULD NEITHER FURTHER THE ADMINISTRATION OF
JUSTICE NOR BE CONDUCIVE TO THE PROPER USE OF THIS COURT'S TIME FOR THE
EFFECTIVE CONDUCT OF ITS INESCAPABLE BUSINESS NOR ADVANCE THE SELF
ESTEEM OF STATE COURTS. 

10.  NOR NEED WE BE CONCERNED LEST THE FEDERAL DISTRICT COURTS WILL
LIGHTLY INJECT THEMSELVES INTO THE STATE CRIMINAL PROCESS AND OPEN WIDE
THE STATE PRISON DOORS.  EXPERIENCE COMPLETELY DISPELS SUCH EXCOGITATED
FEARS.  THE DISTRICT COURTS ARE PRESIDED OVER BY JUDGES WHO ARE
CITIZENS OF THE STATE, WITH LOYALTIES TO IT NO LESS STRONG THAN THOSE
OF THE JUDGES OF THE STATE COURTS.  JUDGES OFTEN COME TO THE FEDERAL
COURTS FROM THE STATE COURTS.  THE PROOF OF THE PUDDING IS IN THE
EATING.  THE SHOWING IS OVERWHELMING THAT THE DISTRICT COURTS GRANT
WRITS OF HABEAS CORPUS MOST SPARINGLY AND ONLY WITH DUE REGARD FOR THIS
COURT'S DECISIONS UNDER THE DUE PROCESS CLAUSE.  FN3 

EVEN THOUGH A PETITION FOR HABEAS CORPUS IN A FEDERAL DISTRICT COURT
MAY INVOLVE CONSTITUTIONAL QUESTIONS WHICH WERE FOUND AGAINST THE
PETITIONER BY THE HIGHEST COURT OF HIS STATE, THE DISTRICT COURT IS NOT
SITTING AS A COURT OF REVIEW OF THE STATE COURT.  A PETITION FOR HABEAS
CORPUS IN A FEDERAL COURT, AFTER THE STATE PROCESS HAS BEEN EXHAUSTED,
"COMES IN FROM THE OUTSIDE," AS MR. JUSTICE HOLMES PHRASED IT IN HIS
DISSENTING OPINION IN FRANK V. MANGUM, 237 U.S. 309, 345, 346, A VIEW
WHICH ESTABLISHED ITSELF AS LAW IN MOORE V. DEMPSEY, 261 U.S. 86.  IF
IT BE SUGGESTED THAT AS A MATTER OF APPEARANCE, LEGAL ANALYSIS APART, A
FEDERAL DISTRICT COURT MIGHT BE GRANTING RELIEF WHICH THE HIGHEST COURT
OF THE STATE HAD DENIED, THE SAME UNANALYZED APPEARANCE WOULD ATTACH TO
A DISTRICT COURT'S GRANTING RELIEF AFTER THIS COURT HAD DENIED IT. 

11.  DUE REGARD FOR STATE AND FEDERAL RELATIONS AS EXPRESSED IN THE
DOCTRINE OF EXHAUSTION OF STATE REMEDIES AND ADHERENCE TO THE FUNCTION
PLAYED BY CERTIORARI IN THE BUSINESS OF THIS COURT COMBINE TO REJECT AS
ERRONEOUS THE NOTION THAT FEDERAL DISTRICT COURTS ARE TO BE BARRED FROM
EXERCISING THEIR HABEAS CORPUS JURISDICTION IF CERTIORARI WAS NOT FIRST
SOUGHT HERE.  THE ERROR DERIVES FROM THE ASSUMPTION THAT A PETITION FOR
CERTIORARI TO THIS COURT WAS INCLUDED IN THE "STATE REMEDIES AVAILABLE"
WHICH MUST BE EXHAUSTED BEFORE A FEDERAL COURT CAN ENTERTAIN A WRIT OF
HABEAS CORPUS.  THIS ASSUMPTION APPEARS FOR THE FIRST TIME IN A PER
CURIAM OPINION IN EX PARTE HAWK, 321 U.S. 114, 117.  IT WAS REPEATED,
THOUGH NOT IN ISSUE, IN THE PER CURIAM IN WHITE V. RAGEN, 324 U.S. 760,
764.  A CONSIDERATION OF WHAT ACTUALLY WAS SAID IN EX PARTE HAWK ON
THIS MATTER MAKES IT PERFECTLY CLEAR HOW THE MISCONCEPTION ABOUT
CERTIORARI IN RELATION TO THE DISTRICT COURT'S JURISDICTION IN HABEAS
CORPUS CREPT INTO EX PARTE HAWK.  THE FOLLOWING IS EVERYTHING CONTAINED
IN EX PARTE HAWK ON THE SUBJECT: 

"ORDINARILY AN APPLICATION FOR HABEAS CORPUS BY ONE DETAINED UNDER A
STATE COURT JUDGMENT OF CONVICTION FOR CRIME WILL BE ENTERTAINED BY A
FEDERAL COURT ONLY AFTER ALL STATE REMEDIES AVAILABLE, INCLUDING ALL
APPELLATE REMEDIES IN THE STATE COURTS AND IN THIS COURT BY APPEAL OR
WRIT OF CERTIORARI, HAVE BEEN EXHAUSTED.  TINSLEY V. ANDERSON, 171 U.S.
101, 104-5; URQUHART V. BROWN, 205 U.S. 179; UNITED STATES EX REL.
KENNEDY V. TYLER, 269 U.S. 13; MOONEY V. HOLOHAN, SUPRA, 115; EX PARTE
ABERNATHY, 320 U.S. 219."  321 U.S. AT 116-17. 

THE ESSENCE OF THIS STATEMENT IS THE DOCTRINE OF EXHAUSTION OF STATE
REMEDIES.  TWO OF THE CITATIONS - MOONEY V. HOLOHAN AND EX PARTE
ABERNATHY - HAVE ONLY THAT RELEVANCE.  THE THREE OTHER CITATIONS -
TINSLEY V. ANDERSON; URQUHART V. BROWN; UNITED STATES EX REL. KENNEDY
V. TYLER - ARE DIRECTED TO THE PARTICULARIZATION IN THE MAIN STATEMENT
AS TO THE EXHAUSTION OF "ALL STATE REMEDIES AVAILABLE, INCLUDING ALL
APPELLATE REMEDIES  ...  IN THIS COURT  ...  "  THESE THREE CASES
ILLUSTRATE A SERIES OF DECISIONS IN THIS COURT HOLDING THAT A LOWER
FEDERAL COURT ORDINARILY OUGHT NOT TO EXERCISE ITS JURISDICTION IN
HABEAS CORPUS IN FAVOR OF ONE IN STATE CUSTODY EVEN AFTER A FINAL
DETERMINATION BY THE HIGHEST COURT OF A STATE UNLESS HE HAS AVAILED
HIMSELF OF HIS REMEDY "TO REVIEW IT BY WRIT OF ERROR FROM THIS COURT." 
TINSLEY V. ANDERSON, 171 U.S. 101, 105. 

OF COURSE.  A WRIT OF ERROR WAS A WRIT OF RIGHT.  IT MAKES ALL THE
DIFFERENCE IN THE WORLD WHETHER A PRISONER KNOCKS AT THE DOOR OF THIS
COURT TO INVOKE ITS GRACE OR HAS UNQUESTIONED ACCESS FOR THE FINAL
DETERMINATION OF THE FEDERAL QUESTION AS TO WHICH THE HIGHEST COURT OF
THE STATE WAS MERELY AN INTERMEDIATE TRIBUNAL.  THE LATTER WAS THE
SITUATION IN THE THREE CASES CITED IN EX PARTE HAWK.  IN THE WRIT OF
ERROR CASES THIS COURT HELD HABEAS CORPUS IN THE LOWER FEDERAL COURTS
OUGHT NOT TO TAKE THE PLACE OF A MANDATORY APPEAL.  MARKUSON V.
BOUCHER, 175 U.S. 184. 

BUT THIS JURISDICTIONAL SITUATION WAS DRASTICALLY CHANGED BY THE ACT
OF SEPTEMBER 6, 1916, 39 STAT. 726, AND THE ACT OF FEBRUARY 13, 1925,
43 STAT. 936.  THE WHOLE PURPORT OF THIS TRANSFORMING JURISDICTIONAL
LEGISLATION WAS TO BAR THE DOOR OF THIS COURT TO LITIGATION LIKE THIS
FLOOD OF HABEAS CORPUS CASES.  AFTER THIS SHIFT FROM REVIEW AS OF RIGHT
TO REVIEW BY GRACE, IT COULD NO LONGER BE SAID THAT A LITIGANT FORWENT
HIS RIGHT TO HAVE THIS COURT REVIEW AND REVERSE A STATE COURT.  THE
RIGHT WAS GONE.  ONLY AN OPPORTUNITY - AND A SLIM ONE - REMAINED.  IT
COMPLETELY MISCONCEIVES THE DOCTRINE WHICH REQUIRED A CASE TO BE
BROUGHT TO THIS COURT BY WRIT OF ERROR, BECAUSE IT WAS THE DUTY OF THIS
COURT TO ADJUDICATE THE CLAIM ON THE MERITS, TO APPLY IT TO THE TOTALLY
DIFFERENT FACTORS INVOLVED IN CERTIORARI.  ALL THE CONSIDERATIONS OF
POLICY REQUIRED THAT THE PROCESS OF CONSTITUTIONAL ADJUDICATION THROUGH
WRIT OF ERROR BE EXHAUSTED BEFORE A LOWER FEDERAL COURT COULD STEP IN.
UNTIL EX PARTE HAWK THERE WAS NO SUGGESTION OF ASSIMILATING CERTIORARI
TO THE WRIT OF ERROR DOCTRINE.  IN THE PRESENT CONTEXT OF THE COURT'S
BUSINESS IN RELATION TO THESE CASES - THEIR VOLUME AND THE REQUIRED
KNOWLEDGE OF LOCAL LAW WITH WHICH THE LOCAL FEDERAL JUDGES ARE MUCH
MORE FAMILIAR THAN WE CAN POSSIBLY BE - ALL CONSIDERATIONS OF POLICY
URGE AGAINST REQUIRING CERTIORARI TO BE FILED AND DENIED BEFORE THE
DISTRICT COURT MAY BE ALLOWED TO EXERCISE JURISDICTION. 

THE REASONS UNDERLYING STARE DECISIS ARE NOT APPLICABLE TO SUCH A
PROCEDURAL SUGGESTION AS EX PARTE HAWK MADE REGARDING THE REQUIREMENT
OF PETITIONING THIS COURT FOR CERTIORARI BEFORE EVOKING THE DISTRICT
COURT'S JURISDICTION ON HABEAS CORPUS.  THAT SUGGESTION NEVER WAS
TRANSLATED INTO PRACTICE SO FAR AS THE RECORDS OF THIS COURT DISCLOSE. 
WHAT WAS SPECIFICALLY DECIDED IN EX PARTE HAWK DID BECOME THE PRACTICE
OF THIS COURT - THAT IS, PETITIONS FOR LEAVE TO FILE A WRIT OF HABEAS
CORPUS IN THIS COURT UNDER SEC. 262 OF THE JUDICIAL CODE, NOW 28 U.S.C.
SEC. 1651, WERE THEREAFTER DENIED.  BUT NO INSTANCE HAS BEEN REVEALED
IN WHICH THIS COURT ACTED ON THE SUGGESTION THAT EXHAUSTION OF STATE
REMEDIES INCLUDES DENIAL OF CERTIORARI HERE.  APART FROM THE FACT THAT
WADE V. MAYO DISPLACED THE INCLUSION OF CERTIORARI AS PART OF THE STATE
REMEDIES, IT WAS RECOGNIZED AT THE LAST TERM OF COURT THAT THE SCOPE OF
EX PARTE HAWK WAS THAT IT EXPRESSED THE "DOCTRINE OF EXHAUSTION OF
STATE REMEDIES."  YOUNG V. RAGEN, 337 U.S. 235, 238.    12.  A FINAL
POINT REMAINS AND THAT IS THE SUGGESTION THAT THE PROVISION OF THE 1948
REVISION OF THE JUDICIAL CODE REQUIRES ADHERENCE TO WHAT WAS SAID IN EX
PARTE HAWK ABOUT RESORT TO CERTIORARI.  THE CODE PROVISIONS SAY NO SUCH
THING NOR DO THE REVISER'S NOTES.  SECTION 2254 OF TITLE 28 MERELY
FORMULATES THE JUDICIAL DOCTRINE FIRST ANNOUNCED BY THIS COURT IN EX
PARTE ROYALL, 117 U.S. 241 - THE DOCTRINE OF EXHAUSTION OF STATE
REMEDIES: 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PERSON IN
CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT BE GRANTED
UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE  ... 

"AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

WADE V. MAYO MADE IT CLEAR THAT CERTIORARI IS NOT A REMEDY "AVAILABLE
IN THE COURTS OF THE STATE" AND NO CLAIM IS NOW MADE TO THE CONTRARY. 
WITH THAT ABANDONMENT GOES THE UNCRITICAL INCLUSION BY EX PARTE HAWK OF
CERTIORARI AMONG THE REMEDIES OF THE STATE.  WADE V. MAYO, TO BE SURE,
COULD NOT HAVE BEEN BEFORE THE CONGRESS, BUT THE REVISER CHARACTERIZED
SEC. 2254 AS "DECLARATORY OF EXISTING LAW AS AFFIRMED BY THE SUPREME
COURT," ADDING "SEE EX PARTE HAWK."  THAT DECISION IS SOUND ENOUGH IN
ITS ESSENTIAL REQUIREMENT FOR "EXHAUSTION OF STATE REMEDIES."  THE SLIP
IN ANALYSIS IT CONTAINED AS TO WHAT ARE "STATE REMEDIES" IS SURELY NOT
THE EQUIVALENT OF AN ENACTMENT BY CONGRESS.  A FAR MORE PERSUASIVE CASE
FOR FINDING REENACTMENT BY CONGRESS OF A DECISION OF THIS COURT WAS
REJECTED IN GIROUARD V. UNITED STATES, 328 U.S. 61. 

13.  IN SHORT, THE DECISION REACHED TODAY HAS ALTERNATIVE
CONSEQUENCES NEITHER OF WHICH, I RESPECTFULLY SUBMIT, CAN BE
JUSTIFIED.  IN BARRING A DISTRICT COURT FROM ENTERTAINING A PETITION
FOR HABEAS CORPUS ON BEHALF OF A STATE PRISONER PRIOR TO DENIAL OF
CERTIORARI HERE, THE DECISION MUST MEAN EITHER (1) THAT DENIAL OF A
PETITION FOR CERTIORARI IN THIS CLASS OF CASES, UNLIKE DENIALS IN ALL
OTHER CLASSES OF CASES, WOULD SERVE THE PURPOSE OF AN ADJUDICATION ON
THE MERITS, THEREBY CARRYING WITH IT ALL THE WEIGHT THAT AN
ADJUDICATION ON THE MERITS BY THIS COURT SHOULD CARRY WITH A DISTRICT
COURT EVEN IN HABEAS CORPUS CASES, OR (2) THAT SUCH A DENIAL, AS IS
TRUE OF DENIALS IN ANY OTHER TYPE OF CASE, HAS NO LEGAL SIGNIFICANCE. 

THE FIRST ALTERNATIVE - THAT IN HABEAS CORPUS CASES DENIAL OF
CERTIORARI HAS THE EFFECT OF A DISPOSITION ON THE MERITS - WOULD
REQUIRE A COMPLETE CHANGE IN OUR CONSIDERATION OF SUCH PETITIONS BY
THIS COURT.  THEY WOULD HAVE TO BE TREATED AS WE NOW TREAT CASES IN
WHICH A PETITION FOR CERTIORARI IS GRANTED SO AS TO BE HEARD ON THE
MERITS.  THIS WOULD CAST A NEW BURDEN UPON THE COURT FULL OF THE DIREST
CONSEQUENCES TO THE PROPER DISPOSITION OF THE REST OF THE BUSINESS OF
THE COURT.  IN ADDITION, IF DENIAL OF CERTIORARI AS THOUGH ON THE
MERITS BUT WITHOUT FULL DRESS CONSIDERATION WOULD, FOR ALL EFFECTIVE
PURPOSES, PRECLUDE RESORT TO THE DISTRICT COURTS ON A CLAIM THAT STATE
CUSTODY IS IN VIOLATION OF THE CONSTITUTION, IT WOULD JUDICIALLY
NULLIFY THE HABEAS CORPUS JURISDICTION WHICH WAS FIRST GIVEN TO THE
LOWER FEDERAL COURTS BY THE ACT OF FEBRUARY 5, 1867, AND HAS EVER SINCE
BEEN RETAINED.  ON THE SECOND ALTERNATIVE, I.E., THAT DENIAL OF
CERTIORARI IN HABEAS CORPUS CASES IS LIKE ANY OTHER DENIAL OF
CERTIORARI, THE COURT WOULD ANNOUNCE THAT A MEANINGLESS STEP IN THIS
COURT IS AN INDISPENSABLE PRELIMINARY TO GOING TO THE LOCAL DISTRICT
COURT. 

I AGREE WITH THE OPINION OF JUDGE PHILLIPS BELOW THAT THE CASE SHOULD
BE REVERSED AND REMANDED TO THE DISTRICT COURT. 

FN1  JUDGE LEARNED HAND HAS CARRIED THE REQUIREMENT OF ELICITING A
DENIAL OF A PETITION FOR CERTIORARI IN HABEAS CORPUS CASES TO ITS
LOGICAL CONCLUSION BY GIVING SUCH DENIAL CONCLUSIVE EFFECT ON THE
MERITS.  SCHECHTMAN V. FOSTER, 172 F.2D 339, 342-43.  THAT IS THE
LOGICAL CONCLUSION OF SUCH A REQUIREMENT - BUT IT IS THE LOGIC OF
UNREALITY.  FOR IT FLIES IN THE FACE OF THE ACTUALITIES OF A DENIAL. 
THE CONSIDERATIONS ENTERING INTO SUCH DENIALS HAVE NECESSITATED THE
HITHERTO SETTLED PRINCIPLE THAT DENIAL CARRIES NO SUGGESTION OF
ADJUDICATION ON THE MERITS. 

FN2  THE CONSIDERATIONS THAT LEAD TO AN EXPLICIT STATEMENT THAT
DENIAL OF CERTIORARI IS "WITHOUT PREJUDICE" TO OTHER AVENUES OF RELIEF
BECAUSE IT DOES NOT BEAR ON THE MERITS OF COURSE CARRY NO NEGATIVE
IMPLICATION THAT IN THE ABSENCE OF SUCH A PHRASE THE DENIAL IS WITH
PREJUDICE. 

FN3  THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS HAS
COMPILED THE FOLLOWING STATISTICS:

          FISCAL YEARS              1945-46  1946-47  1947-48  1948
49 

HABEAS CORPUS CASES 

INVOLVING STATE PRISONERS 

DISPOSED OF BY DISTRICT 

COURTS ..............................      503      481      487
610 

CASES IN WHICH PETITIONERS 

WERE SUCCESSFUL......................       14       13       11
10 

PERCENTAGE OF CASES IN WHICH 

PETITIONERS WERE SUCCESSFUL..........     2.8%     2.7%     2.3%
1.6% 

SEE SPECK, STATISTICS ON FEDERAL HABEAS CORPUS, 10 OHIO STATE L.J.
337, 357(1949). 

MR. JUSTICE JACKSON, BEING OF THE OPINION THAT THIS IS THE BETTER OF
THE TWO UNSATISFACTORY COURSES OPEN TO US, JOINS THIS OPINION. 
..END :
























UNITED STATES V. COMMODITIES CORP., 339 U.S. 121 


ARGUED JANUARY 10-11, 1950.  - DECIDED MARCH 27, 1950.  - 113 CT. CL.
244, 83 F.SUPP.  356, REVERSED. 


IN 1944 THE WAR DEPARTMENT REQUISITIONED A QUANTITY OF WHOLE BLACK
PEPPER, AS TO WHICH A CEILING PRICE HAD BEEN ESTABLISHED BY THE OFFICE
OF PRICE ADMINISTRATION UNDER AUTHORITY OF THE EMERGENCY PRICE CONTROL
ACT.  IN A SUIT BY THE OWNER TO RECOVER JUST COMPENSATION, THE COURT OF
CLAIMS FIXED AS JUST COMPENSATION A PRICE IN EXCESS OF THE CEILING
PRICE.  HELD:  ON THE RECORD IN THIS CASE, THE CEILING PRICE OF THE
PEPPER AT THE TIME IT WAS REQUISITIONED WAS THE PROPER MEASURE OF JUST
COMPENSATION.  PP. 122-131. 

1.  THE CONGRESSIONAL PURPOSE AND THE NECESSITIES OF A WARTIME
ECONOMY REQUIRE THAT CEILING PRICES BE ACCEPTED AS THE MEASURE OF JUST
COMPENSATION, SO FAR AS THAT CAN BE DONE CONSISTENTLY WITH THE
OBJECTIVES OF THE FIFTH AMENDMENT.  PP. 123-125. 

2.  NEITHER THE FIFTH AMENDMENT NOR THE EMERGENCY PRICE CONTROL ACT'S
PROVISION THAT THE ACT SHALL NOT BE CONSTRUED TO COMPEL AN OWNER TO
SELL HIS PROPERTY REQUIRES THAT, IN DETERMINING THE AMOUNT OF JUST
COMPENSATION, THERE BE ADDED TO THE CEILING PRICE A "RETENTION VALUE" -
I.E., AN ALLOWANCE FOR THE PRICE THE OWNER COULD HAVE OBTAINED HAD HE
BEEN PERMITTED TO HOLD THE COMMODITY UNTIL AFTER PRICE RESTRICTIONS HAD
BEEN REMOVED.  PP. 125-128. 

3.  THE OWNER FAILED TO SUSTAIN THE BURDEN OF PROVING SPECIAL
CONDITIONS AND HARDSHIPS PECULIARLY APPLICABLE TO IT; WHEREFORE THE
CEILING PRICE OF THE PEPPER, FAIR AND JUST TO THE TRADE GENERALLY, MUST
BE ACCEPTED AS THE MAXIMUM MEASURE OF COMPENSATION FOR THE TAKING.  PP.
128-131. 

(A)  THE FACT THAT THE OWNER WAS AN "INVESTOR" IN PEPPER RATHER THAN
A "TRADER" DID NOT ENTITLE IT TO "RETENTION VALUE," A VALUE BASED ON
SPECULATION CONCERNING THE PRICE IT MIGHT HAVE OBTAINED FOR PEPPER
AFTER THE WAR AND AFTER PRICE CONTROLS WERE REMOVED.  PP. 128-129. 

(B)  THE FACT THAT THE PARTICULAR PEPPER DELIVERED TO THE GOVERNMENT
COST THE OWNER MORE THAN THE CEILING PRICE IS NO BASIS FOR EXCEPTING
THE OWNER FROM APPLICATION OF THE CEILING PRICE AS THE PROPER MEASURE
OF JUST COMPENSATION.  PP. 129-130. 

(C)  THE FIFTH AMENDMENT DOES NOT REQUIRE THE GOVERNMENT TO
COMPENSATE AN OWNER OF REQUISITIONED GOODS FOR POTENTIAL PROFITS LOST
BECAUSE OF WAR AND THE CONSEQUENT PRICE CONTROLS.  P. 130. 

UNITED STATES V. COMMODITIES TRADING CORP. ET AL. 

NO. 156.  CERTIORARI TO THE COURT OF CLAIMS.* 

*TOGETHER WITH NO. 163, COMMODITIES TRADING CORP. ET AL. V. UNITED
STATES, ALSO ON CERTIORARI TO THE SAME COURT. 

IN A SUIT TO RECOVER JUST COMPENSATION FOR A QUANTITY OF WHOLE BLACK
PEPPER REQUISITIONED IN 1944 BY THE WAR DEPARTMENT, THE COURT OF CLAIMS
AWARDED AN AMOUNT IN EXCESS OF THE O.P.A. CEILING PRICE BUT LESS THAN
THE AMOUNT CLAIMED.  113 CT. CL. 244, 83 F.SUPP.  356.  THIS COURT
GRANTED CROSS-PETITIONS FOR CERTIORARI.  338 U.S. 857.  REVERSED AND
REMANDED, P. 131. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

COMMODITIES TRADING CORPORATION BROUGHT THIS SUIT IN THE COURT OF
CLAIMS TO RECOVER "JUST COMPENSATION" FOR ABOUT 760,000 POUNDS OF WHOLE
BLACK PEPPER REQUISITIONED BY THE WAR DEPARTMENT IN 1944 FROM
COMMODITIES' STOCK OF 17,000,000 POUNDS.  THE UNITED STATES CONTENDED
THAT THE OPA CEILING PRICE OF 6.63 CENTS PER POUND WAS JUST
COMPENSATION.  COMMODITIES DENIED, THIS, CLAIMING 22 CENTS PER POUND. 
IT ARGUED THAT CONGRESS DID NOT AND COULD NOT CONSTITUTIONALLY FIX THE
CEILING PRICE AS A MEASURE FOR DETERMINING WHAT IS JUST COMPENSATION
UNDER THE CONSTITUTION.  COMMODITIES ALSO CONTENDED THAT, FOR REASONS
PECULIAR TO ITS OWN SITUATION, APPLICATION OF THE CEILING PRICE IN THIS
INSTANCE WOULD BE PARTICULARLY UNJUST.  THE COURT OF CLAIMS FIXED "JUST
COMPENSATION" AT 15 CENTS PER POUND.  IN SO DOING, THAT COURT TOOK INTO
CONSIDERATION WHAT IT TERMS "RETENTION VALUE," EXPLAINED AS AN
ALLOWANCE FOR THE PRICE COMMODITIES "UNDOUBTEDLY COULD HAVE SECURED FOR
ITS PEPPER HAD IT BEEN PERMITTED TO HOLD IT UNTIL AFTER RESTRICTIONS
HAD BEEN REMOVED  ...  "  THE COURT ALSO CONSIDERED HOW MUCH THE
PRECISE PEPPER REQUISITIONED COST COMMODITIES, THE PRICES AT WHICH THAT
COMPANY SOLD PEPPER AFTER THE GOVERNMENT REQUISITION, SUBSEQUENT OPA
CEILING PRICES, AND THE AVERAGE PRICE OF PEPPER FOR THE PAST 75 YEARS. 
113 CT. CL. 244, 83 F.SUPP.  356.  WE GRANTED THE PETITIONS OF BOTH
PARTIES FOR CERTIORARI.  338 U.S. 857. 

FIRST.  THE QUESTIONS PRESENTED ARE CONTROLLED BY THE CLAUSE OF THE
FIFTH AMENDMENT PROVIDING THAT PRIVATE PROPERTY SHALL NOT BE "TAKEN FOR
PUBLIC USE, WITHOUT JUST COMPENSATION."  THIS COURT HAS NEVER ATTEMPTED
TO PRESCRIBE A RIGID RULE FOR DETERMINING WHAT IS "JUST COMPENSATION"
UNDER ALL CIRCUMSTANCES AND IN ALL CASES.  FAIR MARKET VALUE HAS
NORMALLY BEEN ACCEPTED AS A JUST STANDARD.  BUT WHEN MARKET VALUE HAS
BEEN TOO DIFFICULT TO FIND, OR WHEN ITS APPLICATION WOULD RESULT IN
MANIFEST INJUSTICE TO OWNER OR PUBLIC, COURTS HAVE FASHIONED AND
APPLIED OTHER STANDARDS.  FN1  SINCE THE MARKET VALUE STANDARD WAS
DEVELOPED IN THE CONTEXT OF A MARKET LARGELY FREE FROM GOVERNMENT
CONTROLS, PRICES RIGIDLY FIXED BY LAW RAISE QUESTIONS CONCERNING
WHETHER A "MARKET VALUE" SO FIXED CAN BE A MEASURE OF "JUST
COMPENSATION."  UNITED STATES V. FELIN & CO., 334 U.S. 624.  WHATEVER
THE CIRCUMSTANCES UNDER WHICH SUCH CONSTITUTIONAL QUESTIONS ARISE, THE
DOMINANT CONSIDERATION ALWAYS REMAINS THE SAME:  WHAT COMPENSATION IS
"JUST" BOTH TO AN OWNER WHOSE PROPERTY IS TAKEN AND TO THE PUBLIC THAT
MUST PAY THE BILL? 

THE WORD "JUST" IN THE FIFTH AMENDMENT EVOKES IDEAS OF "FAIRNESS" AND
"EQUITY," AND THESE WERE THE PRIMARY STANDARDS PRESCRIBED FOR CEILING
PRICES UNDER THE EMERGENCY PRICE CONTROL ACT.  FN2 AS ASSURANCE THAT
PRICES FIXED UNDER ITS AUTHORITY BY THE ADMINISTRATIVE AGENCY WOULD BE
"GENERALLY FAIR AND EQUITABLE," CONGRESS PROVIDED THAT PRICE
REGULATIONS COULD BE SUBJECTED TO JUDICIAL REVIEW.  ALL LEGITIMATE
PURCHASES AND SALES HAD TO BE MADE AT OR BELOW CEILING PRICES.  AND
MOST BUSINESSMEN WERE COMPELLED TO SELL BECAUSE, FOR EXAMPLE, THEIR
GOODS WERE PERISHABLE OR THEIR BUSINESSES DEPENDED ON CONTINUOUS
SALES.  THUS CEILING PRICES OF COMMODITIES HELD FOR SALE REPRESENTED
NOT ONLY MARKET VALUE BUT IN FACT THE ONLY VALUE THAT COULD BE REALIZED
BY MOST OWNERS.  UNDER THESE CIRCUMSTANCES THEY CANNOT PROPERLY BE
IGNORED IN DECIDING WHAT IS JUST COMPENSATION. 

THE EXTENT TO WHICH CEILING PRICES SHOULD GOVERN COURTS IN SUCH A
DECISION IS ANOTHER MATTER.  CONGRESS DID NOT EXPRESSLY PROVIDE THAT
PRICES FIXED UNDER THE PRICE CONTROL ACT SHOULD CONSTITUTE THE MEASURE
OF JUST COMPENSATION FOR PROPERTY TAKEN UNDER THE FIFTH AMENDMENT.  FN3
AND SEC. 4(D) PROVIDES THAT THE ACT SHALL NOT BE CONSTRUED AS
REQUIRING ANY PERSON TO SELL.  BUT SEC. 1(A) DECLARED THE ACT'S
PURPOSES "TO ASSURE THAT DEFENSE APPROPRIATIONS ARE NOT DISSIPATED BY
EXCESSIVE PRICES" AND TO "PREVENT HARDSHIPS  ...  TO THE FEDERAL,
STATE, AND LOCAL GOVERNMENTS, WHICH WOULD RESULT FROM ABNORMAL
INCREASES IN PRICES  ...  "  CONGRESS THUS PLAINLY CONTEMPLATED THAT
THESE GOVERNMENTS SHOULD BE ABLE TO BUY GOODS FULFILLING THEIR WARTIME
NEEDS AT THE PRICES FIXED FOR OTHER PURCHASERS.  THE CRUCIAL IMPORTANCE
OF THIS IN THE CONGRESSIONAL PLAN FOR A STABILIZED WAR ECONOMY TO LIMIT
INFLATION AND PREVENT PROFITEERING IS SHOWN BY THE FACT THAT DURING THE
WAR APPROXIMATELY ONE-HALF OF THE NATION'S OUTPUT OF GOODS AND SERVICES
WENT TO FEDERAL, STATE AND LOCAL GOVERNMENTS.  FN4  AND SHOULD JUDICIAL
AWARDS OF JUST COMPENSATION BE UNIFORMLY GREATER IN AMOUNT THAN CEILING
PRICES, EXPECTATIONS OF PECUNIARY GAINS FROM CONDEMNATIONS MIGHT PROMPT
MANY OWNERS TO WITHHOLD ESSENTIAL MATERIALS UNTIL THE GOVERNMENT
REQUISITIONED THEM.  WE THINK THE CONGRESSIONAL PURPOSE AND THE
NECESSITIES OF A WARTIME ECONOMY REQUIRE THAT CEILING PRICES BE
ACCEPTED AS THE MEASURE OF JUST COMPENSATION, SO FAR AS THAT CAN BE
DONE CONSISTENTLY WITH THE OBJECTIVES OF THE FIFTH AMENDMENT. 

SECOND.  IT IS CONTENDED THAT ACCEPTANCE OF CEILING PRICES AS JUST
COMPENSATION WOULD BE INCONSISTENT WITH THE FIFTH AMENDMENT BECAUSE
SUCH PRICES FAIL TO TAKE INTO ACCOUNT A FACTOR DESIGNATED BY THE COURT
OF CLAIMS AS "RETENTION VALUE."  THIS CONCEPT STEMS LARGELY FROM THE
EMERGENCY PRICE CONTROL ACT'S PROVISION THAT THE ACT SHALL NOT BE
CONSTRUED AS COMPELLING AN OWNER TO SELL HIS PROPERTY AGAINST HIS
WILL.  TRANSLATING THE PROVISION AS CONFERRING ON AN OWNER THE "RIGHT
TO HOLD HIS PROPERTY UNTIL HE CAN GET FOR IT WHATEVER ANYONE IS WILLING
TO PAY," THE COURT OF CLAIMS HELD THAT IT GAVE RISE TO A "RETENTION
VALUE" WHICH MUST BE ADDED TO THE CEILING PRICE IN ORDER TO MEET THE
CONSTITUTIONAL REQUIREMENT OF "JUST COMPENSATION."  FN5 

IN ENACTING THAT PROVISION CONGRESS MERELY REFUSED TO TAKE FROM
OWNERS THEIR LONG-EXISTING "RIGHT TO HOLD" UNTIL THEY WANTED TO SELL. 
IT DID NOT CREATE A NEW "RIGHT TO HOLD" AS AGAINST A CONSTITUTIONAL
GOVERNMENT TAKING, OR ENGRAFT ADDED VALUES OF ANY KIND ON PROPERTY
WHICH HAPPENS TO BE REQUISITIONED AT A TIME WHEN PRICES ARE FIXED BY
LAW.  WE CANNOT JUSTIFIABLY STRETCH THIS PROVISION INTO A COMMAND THAT
THE GOVERNMENT PAY OWNERS A "RETENTION VALUE" FOR PROPERTY TAKEN. 

NOR CAN WE CONSTRUE THE FIFTH AMENDMENT AS SUPPORTING THE COURT OF
CLAIMS "RETENTION VALUE" RULE.  IN PEACETIME WHEN PRICES ARE NOT FIXED,
THE NORMAL MEASURE OF JUST COMPENSATION HAS BEEN CURRENT MARKET VALUE;
RETENTION VALUE HAS NEVER BEEN TREATED AS A SEPARATE AND ESSENTIAL
FACTOR.  TRUE, CURRENT MARKET VALUE MAY SOMETIMES BE HIGHER BECAUSE A
BUYER ANTICIPATES FUTURE RISES IN PRICES.  AND EXCEPTIONAL
CIRCUMSTANCES CAN BE CONCEIVED WHICH WOULD JUSTIFY RESORT TO EVIDENTIAL
FORECASTS OF POTENTIAL FUTURE VALUES IN ORDER TO DETERMINE PRESENT
MARKET VALUE.  BUT THE GENERAL CONSTITUTIONAL RULE DECLARED AND APPLIED
BY THE COURT OF CLAIMS DID NOT REST ON EXCEPTIONAL CIRCUMSTANCES. 

A PERSUASIVE REASON AGAINST THE GENERAL RULE DECLARED BY THE COURT OF
CLAIMS IS THE HIGHLY SPECULATIVE NATURE OF PROOF TO SHOW POSSIBLE
FUTURE PRICES ON WHICH "RETENTION VALUE" MUST DEPEND.  IN THIS CASE,
FOR INSTANCE, NO ONE KNEW HOW LONG THE WAR WOULD LAST NOR HOW LONG
ECONOMIC CONDITIONS DUE TO WAR MIGHT LEAD CONGRESS TO CONTINUE PRICE
FIXING LEGISLATION.  PREDICTIONS ON THESE SUBJECTS WERE GUESSES, NOT
INFORMED FORECASTS.  AND EVEN IF SUCH PREDICTIONS WERE REASONABLY
CERTAIN, THERE REMAINED OTHER UNKNOWNS.  HOW MUCH MORE THAN THE CEILING
PRICE WOULD A SPECULATIVE PURCHASER HAVE PAID FOR PROPERTY AT THE TIME
OF SEIZURE?  TO WHAT EXTENT, IF AT ALL, WOULD THE LIFTING OF WAR
CONTROLS RAISE PRICES ABOVE THE CONTROLLED CEILINGS?  AND AS OF WHAT
DATE SHOULD FUTURE VALUE BE ESTIMATED?  THE COURT OF CLAIMS OPINION
INDICATES HOW HAPHAZARD SUCH CALCULATIONS MUST BE:  ITS FIGURE OF 15
CENTS PER POUND APPEARS TO BE A ROUGH JUDICIAL COMPROMISE BETWEEN THE
CEILING PRICE AND THE 22 CENTS CLAIMED, NOT A WEIGHTED AVERAGE DRAWN
FROM THE VARIED ASSORTMENT OF DOUBTFUL FACTORS CONSIDERED BY THE
COURT.  MOREOVER, THAT FIGURE SEEMS COMPLETELY DIVORCED FROM THE
CONJECTURED POSTWAR PRICE, A FACTOR CRUCIALLY SIGNIFICANT IN THE
COURT'S "RETENTION VALUE" CONCEPT. 

AN EQUALLY FORCEFUL OBJECTION TO THE "RETENTION VALUE" RULE IS THE
DISCRIMINATION IT WOULD BREED.  ONLY A LIMITED GROUP OF OWNERS COULD
TAKE ADVANTAGE OF THE RULE:  THOSE WHO HAVE NONPERISHABLE PRODUCTS SO
ESSENTIAL FOR WAR PURPOSES THAT REFUSAL TO SELL WOULD RESULT IN
GOVERNMENTAL REQUISITION.  AND MANY OF THESE WOULD BE FINANCIALLY
UNABLE TO WITHHOLD THEIR GOODS ON SUCH A GAMBLE.  THUS OWNERS ABLE TO
HOLD ESSENTIAL NONPERISHABLE GOODS UNTIL REQUISITION WOULD BECOME A
FAVORED CLASS AT THE EXPENSE OF OTHER OWNERS NOT SO FORTUNATE. 
MOREOVER, EVEN WITHIN THAT FAVORED CLASS THE "RETENTION VALUE" RULE
WOULD CREATE DISCRIMINATION AGAINST OWNERS IMPELLED BY A SENSE OF DUTY
TO SELL THEIR GOODS TO THE GOVERNMENT AT CEILING PRICES WITHOUT WAITING
FOR REQUISITION.  A PREMIUM WOULD BE PLACED ON RECALCITRANCE IN TIME OF
WAR. 

A RULE SO DIFFICULT TO APPLY AND LEADING TO SUCH DISCRIMINATORY AND
UNJUST RESULTS CANNOT BE REQUIRED BY THE FIFTH AMENDMENT'S COMMAND FOR
PAYMENT OF "JUST COMPENSATION." 

THIRD.  WHILE THERE IS NO CONSTITUTIONAL OBSTACLE TO TREATING
"GENERALLY FAIR AND EQUITABLE" CEILING PRICES AS THE NORMAL MEASURE OF
JUST COMPENSATION FOR COMMODITIES HELD FOR SALE, THERE MUST BE ROOM FOR
SPECIAL EXCEPTIONS TO SUCH A GENERAL RULE.  FOR UNFAIR HARDSHIP MAY BE
INFLICTED ON A PARTICULAR DEALER BY VALID CEILING PRICES WHICH ARE
"GENERALLY" FAIR.  BOWLES V. WILLINGHAM, 321 U.S. 503, 516-518.  BUT
THE CEILING PRICE OF PEPPER, FAIR AND JUST TO THE TRADE GENERALLY,
SHOULD BE ACCEPTED AS THE MAXIMUM MEASURE OF COMPENSATION UNLESS
COMMODITIES HAS SUSTAINED THE BURDEN OF PROVING SPECIAL CONDITIONS AND
HARDSHIPS PECULIARLY APPLICABLE TO IT.  FN6  CF. MARION & RYE VALLEY R.
CO. V. UNITED STATES, 270 U.S. 280, 285. 

COMMODITIES CONTENDS THAT IT PROVED THE EXISTENCE OF SUCH
CONDITIONS.  IT POINTS TO THE STATEMENT OF THE COURT OF CLAIMS THAT THE
"SO-CALLED 'RETENTION VALUE' IS PARTICULARLY APPLICABLE IN THIS CASE"
BECAUSE COMMODITIES WAS AN "INVESTOR" IN PEPPER RATHER THAN A
"TRADER."  THE COMPANY ACCUMULATED ITS LARGE SUPPLY AT INTERVALS DURING
THE 1933-1941 PERIOD, EXPECTING TO HOLD IT TO SELL WHEN THE PRICE WENT
UP.  THE COURT FOUND THAT COMMODITIES COULD REASONABLY EXPECT THIS
RISE: THE NATURE OF PRODUCTION WAS SUCH THAT PERIODS OF ABUNDANCE AND
SCARCITY WERE BOUND TO ALTERNATE, AND DURING THE PRECEDING 75 YEARS THE
PRICE OF PEPPER HAD SHOWN MARKED FLUCTUATIONS IN FAIRLY REGULAR
CYCLES.  MOST OF COMMODITIES' PEPPER WAS BOUGHT WHEN PRICES WERE LOW. 
IT IS ARGUED THAT AS AN "INVESTOR" COMMODITIES SHOULD NOT BE DEPRIVED
OF THE PECUNIARY BENEFITS WHICH FUTURE HIGH PRICES WOULD HAVE AFFORDED
BUT FOR THE GOVERNMENT'S TAKING. 

UNDER THIS STATE OF FACTS THE SITUATION OF COMMODITIES DIFFERED ONLY
IN DEGREE, IF AT ALL, FROM THAT OF MYRIAD OTHER COMMODITY OWNERS WHO
QUITE NATURALLY WISHED TO HOLD THEIR GOODS FOR HIGHER PRICES.  POSTWAR
INFLATIONARY INFLUENCES ARE COMMON AND GENERALLY EXPECTED.  PRICE
CYCLES, SEASONAL AND OTHERWISE, ARE ALSO WELL-RECOGNIZED ECONOMIC
PHENOMENA.  DOUBTLESS OWNERS OF STEEL, TEXTILES, FOODSTUFFS, AND OTHER
GOODS COULD PRODUCE EVIDENCE SIMILAR TO THAT OFFERED IN REGARD TO
PEPPER TO SHOW CYCLICAL FLUCTUATIONS IN THEIR PRICES.  NOR WOULD THERE
BE MUCH DIFFICULTY IN SHOWING THAT A GREAT MANY OWNERS HAD BOUGHT,
PRODUCED, OR MANUFACTURED THEIR VARIOUS MERCHANDISE WITH THE IDEA OF
WITHHOLDING FROM MARKETS TO AWAIT EXPECTED HIGHER PRICES.  MANY LOST
ANTICIPATED PROFITS DUE TO PRICE CONTROL OR REQUISITION.  SACRIFICES OF
THIS KIND AND OTHERS FAR GREATER ARE THE LOT OF A PEOPLE ENGAGED IN
WAR.  THAT A WAR CALLS FOR SACRIFICES IS OF COURSE NO REASON WHY AN
UNFAIR AND DISPROPORTIONATE BURDEN SHOULD BE BORNE BY COMMODITIES.  BUT
THE FACTS HERE SHOW NO SUCH BURDEN ON COMMODITIES.  COMMODITIES, JUST
LIKE OTHER TRADERS IN PEPPER AND OTHER PRODUCTS, BOUGHT PEPPER WITH THE
INTENTION OF ULTIMATELY SELLING ON THE MARKET.  NO MORE THAN ANY OTHER
OWNER IS COMMODITIES ENTITLED TO "RETENTION VALUE," A VALUE BASED ON
SPECULATION CONCERNING THE PRICE IT MIGHT HAVE OBTAINED FOR PEPPER
AFTER THE WAR AND AFTER PRICE CONTROLS WERE REMOVED. 

ANOTHER CONTENTION IS THAT THE PARTICULAR PEPPER TURNED OVER TO THE
GOVERNMENT COST COMMODITIES MORE THAN THE CEILING PRICE, AND THAT THIS
IS A SPECIAL CIRCUMSTANCE SUFFICIENT TO PRECLUDE USE OF THE CEILING
PRICE HERE.  THE COURT OF CLAIMS DID FIND THAT THE AVERAGE COST TO
COMMODITIES OF THE PRECISE PEPPER TAKEN, INCLUDING LABOR COSTS,
STORAGE, INTEREST, INSURANCE, TAXES AND OTHER EXPENSES, WAS 12.7 CENTS
PER POUND.  THE GOVERNMENT CHALLENGES THESE FINDINGS AND ALSO CLAIMS
THAT COMMODITIES SELECTED ITS HIGH-COST PEPPER FOR DELIVERY UNDER THE
REQUISITION.  POINTING OUT THAT PEPPER IS FUNGIBLE AND THAT THE ONLY
RELEVANT COST FIGURE IS THE AVERAGE COST TO COMMODITIES OF ALL ITS
PEPPER, THE GOVERNMENT ASSERTS THAT THIS AVERAGE COST WAS LESS THAN THE
CEILING PRICE.    WE DO NOT CONSIDER THESE CONTENTIONS OF THE
GOVERNMENT BECAUSE WE THINK THAT THE COST OF THE PEPPER DELIVERED
PROVIDES NO SUFFICIENT BASIS FOR SPECIALLY EXCLUDING COMMODITIES FROM
APPLICATION OF THE CEILING PRICE.  THE GENERAL RULE HAS BEEN THAT THE
GOVERNMENT PAYS CURRENT MARKET VALUE FOR PROPERTY TAKEN, THE PRICE
WHICH COULD BE OBTAINED IN A NEGOTIATED SALE, WHETHER THE PROPERTY HAD
COST THE OWNER MORE OR LESS THAN THAT PRICE.  VOGELSTEIN & CO. V.
UNITED STATES, 262 U.S. 337, 340.  THE REASONS UNDERLYING THE RULE IN
CASES WHERE NO GOVERNMENT-CONTROLLED PRICES ARE INVOLVED ALSO SUPPORT
ITS APPLICATION WHERE VALUE IS MEASURED BY A CEILING PRICE.  IN NEITHER
INSTANCE SHOULD THE GOVERNMENT BE REQUIRED TO MAKE GOOD ANY LOSSES
CAUSED BY THE FACT THAT THE OWNER PURCHASED GOODS AT A PRICE HIGHER
THAN MARKET VALUE ON THE DATE OF TAKING.  ESPECIALLY IS THIS TRUE WHERE
THE RESULTING LOOPHOLE IN WARTIME REGULATION WOULD BE AVAILABLE ONLY TO
DEALERS IN ESSENTIAL NONPERISHABLE COMMODITIES WHO HAVE ENOUGH FUNDS
AND STORAGE SPACE TO WITHHOLD GOODS UNTIL THE GOVERNMENT IS FORCED TO
REQUISITION THEM. 

WE HAVE CONSIDERED ALL OTHER CONTENTIONS OF COMMODITIES AND FIND THAT
NONE OF THEM PRESENT REASONS FUFFICIENT TO JUSTIFY AWARDING COMMODITIES
AN AMOUNT IN EXCESS OF CEILING PRICES.  IN THE FINAL ANALYSIS ALL ITS
ARGUMENTS REST ON THE PRINCIPLE THAT THE GOVERNMENT MUST PAY
COMMODITIES FOR POTENTIAL PROFITS LOST BECAUSE OF WAR AND THE
CONSEQUENT PRICE CONTROLS.  WE CANNOT HOLD THAT THE FIFTH AMENDMENT
REQUIRES THE GOVERNMENT TO GIVE OWNERS OF REQUISITIONED GOODS SUCH A
SPECIAL BENEFIT. 

THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED AND THE CAUSE IS
REMANDED WITH DIRECTIONS TO ENTER AN APPROPRIATE JUDGMENT BASED ON THE
MAXIMUM CEILING PRICE OF THE PEPPER AT THE TIME IT WAS TAKEN.  IT IS SO
ORDERED. 

FN1 SEE, E.G., UNITED STATES V. MILLER, 317 U.S. 369; OLSON V. UNITED
STATES, 292 U.S. 246. 

FN2  56 STAT. 23, 50 U.S.C. APP. SEC. 901. 

FN3  HAD CONGRESS PRESCRIBED A RULE THAT PRICES FIXED UNDER THE ACT
SHOULD CONSTITUTE THE MEASURE OF CONSTITUTIONAL "JUST COMPENSATION,"
COURTS UPON PROPER CHALLENGES WOULD HAVE BEEN FACED WITH RESPONSIBILITY
OF DETERMINING WHETHER THAT RULE SATISFIED THE REQUIREMENTS OF THE
FIFTH AMENDMENT.  MARBURY V. MADISON, 1 CRANCH 137.  COMPARE
MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312, 327. 

FN4  EIGHTH REPORT OF THE DIRECTOR OF WAR MOBILIZATION AND
RECONVERSION, OCTOBER 1, 1946, H.R. DOC. NO. 45, 80TH CONG., 1ST SESS.
P. 7. 

FN5  PERTINENT PARTS OF THE COURT OF CLAIMS DISCUSSION OF "RETENTION
VALUE" WERE: 

"WE HAVE SEVERAL TIMES HELD THAT, IN DETERMINING JUST COMPENSATION,
WE MUST TAKE INTO ACCOUNT THE PLAINTIFF'S RIGHT TO HOLD ITS PROPERTY
UNTIL RESTRICTIONS ON ITS DISPOSITION ARE REMOVED.  SEVEN-UP BOTTLING
CO. V. UNITED STATES, 107 C. CLS. 402; KAISER V. UNITED STATES, 108 C.
CLS. 47; ADLER METAL PRODUCTS CO. V. UNITED STATES, 108 C. CLS. 102;
PANTEX PRESSING MACHINE CO. V. UNITED STATES, 108 C. CLS. 735. 

"THE GOVERNMENT IN TIME OF WAR HAS THE UNDOUBTED RIGHT TO SAY TO THE
CITIZEN, IF YOU WANT TO SELL YOUR PROPERTY YOU MUST NOT SELL IT FOR
MORE THAN A CERTAIN PRICE; BUT THE GOVERNMENT HAS NO RIGHT TO TAKE THE
PROPERTY AND PAY FOR IT NO MORE THAN THIS FIXED PRICE, UNLESS THAT
PRICE JUSTLY COMPENSATES THE OWNER, TAKING INTO CONSIDERATION HIS RIGHT
TO HOLD HIS PROPERTY UNTIL HE CAN GET FOR IT WHATEVER ANYONE IS WILLING
TO PAY."  113 CT. CL. 259-260, 83 F.SUPP.  357. 

FN6  COMMODITIES HAD PETITIONED THE PRICE ADMINISTRATOR IN 1943 TO
AMEND THE APPLICABLE REGULATION SO AS TO PERMIT HIGHER PRICES FOR
PEPPER BY ALLOWANCES FOR STORAGE EXPENSES.  THIS PETITION WAS DENIED. 
NOTHING IN THE RECORD INDICATES THAT THE EMERGENCY COURT OF APPEALS WAS
EVER ASKED TO CONSIDER CEILING PRICES FOR PEPPER. 

MR. CHIEF JUSTICE VINSON AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING IN PART. 

IN 1933 COMMODITIES TRADING CORPORATION BEGAN TO ACCUMULATE AN
INVENTORY OF BLACK PEPPER, NOT AS A TRADER IN PEPPER BUT AS AN INVESTOR
IN A NONPERISHABLE COMMODITY.  IT BASED THIS INVESTMENT POLICY ON THE
FAIRLY REGULAR CYCLICAL FLUCTUATIONS OF PEPPER PRICES OVER A PERIOD OF
ABOUT SEVENTY-FIVE YEARS.  THIS REGULARITY WAS DUE TO THE FACT THAT
PEPPER PLANTINGS IN SUMATRA, FRENCH INDO-CHINA AND INDIA, WHICH
SUPPLIED ALMOST ALL OF IT, FLUCTUATED WITH THE PRICE OF PEPPER IN THE
WORLD MARKET.  NEGLECT OF THEIR CROPS BY THE NATIVE GROWERS IN PERIODS
OF DEPRESSED PRICES LOWERED SUPPLY; THEREBY PRICES WERE RAISED AND THIS
IN TURN STIMULATED NEW PLANTINGS.  SINCE IT TAKES THE PEPPER PLANT
ABOUT FOUR YEARS TO BEAR, PRICES WOULD NORMALLY MAINTAIN THEIR HIGH
LEVEL FOR ABOUT THAT PERIOD.  THE OPERATIONS OF COMMODITIES WERE BASED
ON THE EXPECTATION THAT IT WOULD PROFITABLY ADJUST THE SALE OF ITS
HOLDINGS TO THE CYCLICAL MOVEMENT. 

BY 1938 COMMODITIES HAD ACCUMULATED 25,000,000 POUNDS; BY DECEMBER,
1941, IT HAD DISPOSED OF ABOUT 8,000,000 POUNDS.  THE REST IT WITHHELD
FROM THE MARKET UNTIL THE REQUISITION HERE IN CONTROVERSY WAS MADE BY
THE WAR DEPARTMENT, IN MAY, 1944.  DECEMBER, 1941, IS A SIGNIFICANT
DATE BECAUSE A CEILING PRICE ON PEPPER WAS THEN ESTABLISHED.  THE PRICE
AT WHICH IT WAS PEGGED - 6.75 CENTS PER POUND, AMENDED SHORTLY
THEREAFTER TO 6.50 CENTS PLUS LIMITED CARRYING CHARGES - APPROXIMATED
THE MARKET PRICE AT THE TIME THE FREE MARKET IN PEPPER CAME TO AN END. 
THIS FREE MARKET PRICE WAS RESPONSIVE TO THE THEN UNUSUALLY LARGE
INVENTORY OF PEPPER IN THE COUNTRY, AMOUNTING TO FROM 78,000,000 TO
100,000,000 POUNDS, A THREE-YEAR SUPPLY.  THE GOVERNMENT FORBADE
IMPORTATION OF HIGH-PRICED PEPPER FROM INDIA, AND THE OTHER SOURCES OF
SUPPLY WERE CUT OFF BY THE JAPANESE INVASION.  AS A RESULT, STOCKS
RAPIDLY DECLINED, THE FALL BEING ACCELERATED AFTER THE IMPOSITION OF
CEILING PRICES BY A DESIRE ON THE PART OF MANY IMPORTERS TO AVOID
ADDITIONAL CARRYING CHARGES.  BY SEPTEMBER, 1943, ONLY ABOUT 28,000,000
POUNDS WERE IN THE HANDS OF IMPORTERS.  OF THIS COMMODITIES HELD, AS WE
HAVE SEEN, 17,000,000.  FROM ABOUT THE MIDDLE OF 1942 ACTIVITY HAD
STEADILY SHRUNK AND BY EARLY 1944 PEPPER WAS NOT FOR SALE. 

IN MAY, 1944, THE WAR DEPARTMENT REQUISITIONED FROM COMMODITIES ABOUT
760,000 POUNDS OF BLACK PEPPER.  COMMODITIES REJECTED THE GOVERNMENT'S
OFFER OF COMPENSATION AT THE CEILING PRICE AND THIS SUIT TO RECOVER
"JUST COMPENSATION" FOLLOWED. 

ON THE BASIS OF ITS "SPECIAL FINDINGS OF FACT" THE COURT OF CLAIMS
HELD THAT THE CEILING PRICE WAS NOT THE MEASURE OF JUST COMPENSATION
FOR THE REQUISITIONED PEPPER.  IT DEEMED THE RIGHT TO WITHHOLD FROM
SALE NONPERISHABLE GOODS UNTIL AFTER PRICE CONTROL TERMINATED A VALUE
OF SUBSTANCE TO BE INCLUDED IN ASCERTAINING JUST COMPENSATION.  THE
INCLUSION OF THIS "RETENTION VALUE" IN THE PRESENT CIRCUMSTANCES WAS
ESPECIALLY APPROPRIATE, SO THE COURT OF CLAIMS REASONED, BECAUSE
COMMODITIES WAS NOT A TRADER BUT A LONG-TERM INVESTOR.  AFTER THE
CONTROLS WERE REMOVED IN 1946, PEPPER SOLD AT 50 TO 60 CENTS A POUND
AND UPWARD AND THE COURT OF CLAIMS DEEMED THESE FREE MARKET VALUES
RELEVANT IN DETERMINING THE JUST COMPENSATION FOR THE PEPPER
REQUISITIONED IN 1944.  IN GIVING AN AWARD ABOVE THE CEILING PRICE,
THAT COURT WAS FURTHER INFLUENCED BY THE FACT THAT THE COST OF THE
PEPPER IT ATTRIBUTED TO COMMODITIES - 12.7 CENTS PER POUND - EXCEEDED
THE CEILING.  TAKING ALL THE FACTORS IT DEEMED RELEVANT INTO ACCOUNT,
15 CENTS PER POUND WAS FOUND BY THAT COURT TO BE JUST COMPENSATION FOR
THE PEPPER TAKING. 

I. THE "JUST COMPENSATION" REQUIRED BY THE BILL OF RIGHTS WHEN
"PRIVATE PROPERTY (IS) TAKEN FOR PUBLIC USE" HAS A WAY OF ATTRACTING
FAR-FLUNG CONTENTIONS.  SO HERE, EXTREME POSITIONS ARE TAKEN REGARDING
THE RELEVANCE OF CEILING PRICES TO "JUST COMPENSATION."  ON THE ONE
HAND IT IS URGED THAT CEILING PRICES ARE TO BE TREATED AS THOUGH THEY
REPRESENT VALUE DETERMINED BY A FREE MARKET.  ON THE OTHER HAND IT IS
INSISTED THAT SINCE IT WOULD BE UNJUST FOR THE GOVERNMENT ITSELF TO FIX
THE COMPENSATION FOR WHAT IT TAKES, CEILING PRICES SHOULD BE IGNORED. 
I AGREE WITH WHAT I UNDERSTAND TO BE THE COURT'S VIEW IN REJECTING BOTH
THESE ABSOLUTES. 

WAR CONDITIONS DRASTICALLY CHANGE THE ECONOMIC ENVIRONMENT IN WHICH A
FREE MARKET HAS ITS JUSTIFICATION.  THE PURPOSE OF GOVERNMENT CONTROLS
IS TO TERMINATE SUCH A DISTORTED FREE MARKET.  SINCE CEILING PRICES ARE
REQUIRED BY LAW TO BE "GENERALLY FAIR AND EQUITABLE"  FN1  AND GOVERN
VOLUNTARY SALES OF PROPERTY, THEY ARE NOT IRRELEVANT IN ASSESSING JUST
COMPENSATION.  THE VALUE OF PRIVATE PROPERTY IS NOT IMMUTABLE;
ESPECIALLY IS IT NOT IMMUNE FROM THE CONSEQUENCES OF GOVERNMENTAL
POLICIES.  IN THE EXERCISE OF ITS CONSTITUTIONAL POWERS, CONGRESS BY
GENERAL ENACTMENTS MAY IN DIVERSE WAYS CAUSE EVEN APPRECIABLE PECUNIARY
LOSS WITHOUT COMPENSATION.  "GOVERNMENT HARDLY COULD GO ON IF TO SOME
EXTENT VALUES INCIDENT TO PROPERTY COULD NOT BE DIMINISHED WITHOUT
PAYING FOR EVERY SUCH CHANGE IN THE GENERAL LAW.  ...  WHEN (THE
DIMINUTION) REACHES A CERTAIN MAGNITUDE, IN MOST IF NOT IN ALL CASES
THERE MUST BE AN EXERCISE OF EMINENT DOMAIN AND COMPENSATION TO SUSTAIN
THE ACT.  SO THE QUESTION DEPENDS UPON THE PARTICULAR FACTS." 
PENNSYLVANIA COAL CO. V. MAHON, 260 U.S. 393, 413.  SEE ALSO HUDSON
COUNTY WATER CO. V. MCCARTER, 209 U.S. 349, 355; PIPE LINE CASES, 234
U.S. 548, 561; JACKMAN V. ROSENBAUM CO., 260 U.S. 22, 31. 

IT DOES NOT FOLLOW THAT CONTROLLED PRICES AUTOMATICALLY MEET THE
REQUIREMENTS FOR JUST COMPENSATION IN THE FORCIBLE TAKING OF PROPERTY
SIMPLY BECAUSE THEY REPLACED FREE MARKET PRICES WHICH COULD NO LONGER
BE RELIED ON TO REFLECT THE NORMAL PLAY OF FREE ECONOMIC FORCES.  A
SYSTEM OF PRICE CONTROLS WHICH IS "GENERALLY FAIR AND EQUITABLE" MAY
GIVE RISE TO INDIVIDUAL INSTANCES OF HARDSHIP IN THE REQUISITIONING OF
PROPERTY NO MATTER HOW CONSCIENTIOUSLY AND COMPETENTLY ADMINISTERED. 
SEE BOWLES V. WILLINGHAM, 321 U.S. 503, 516-18.  THE HARDSHIP MAY REACH
SUCH MAGNITUDE IN AN INDIVIDUAL INSTANCE AS TO MAKE A TAKING BY THE
PUBLIC AT A CEILING PRICE UNJUST COMPENSATION.  OF COURSE WAR MEANS
BURDENS, AND THERE IS NO CALCULUS BY WHICH THEY CAN BE FAIRLY
DISTRIBUTED.  FROM ANY POINT OF VIEW THE ULTIMATE SACRIFICES ARE
UNCOMPENSABLE.  BUT THESE CONSIDERATIONS ARE NOT RELEVANT IN CARRYING
OUT THE FIFTH AMENDMENT.  WHEN THERE IS A TAKING OF PROPERTY FOR PUBLIC
USE, WHETHER IN WAR OR IN PEACE, THE BURDEN OF THE TAKING IS THE
COMMUNITY'S BURDEN.  THE OWNER SHOULD BE REQUITED BY THAT WHICH
SATISFIES PREVAILING STANDARDS OF JUSTICE.  THIS LIMITATION UPON THE
POWER OF EMINENT DOMAIN HAS THROUGHOUT OUR HISTORY BEEN LEFT FOR
JUDICIAL APPLICATION.  WE WOULD BE FACED WITH A NEW PROBLEM HAD
CONGRESS SPECIFIED THAT THE CEILING PRICES SHOULD BE THE LIMIT OF JUST
COMPENSATION.  SUCH A STATUTE WOULD CALL FOR THE USUAL RESPECT TO BE
ACCORDED TO THE JUDGMENT OF CONGRESS IN PASSING ON THE VALIDITY OF
LEGISLATION WHEN THE POWER OF CONGRESS TO LEGISLATE IS LIMITED BY BROAD
STANDARDS AND NOT BY RESTRICTIONS ALMOST TECHNICAL IN THEIR NATURE.  WE
ARE RELIEVED FROM A CONSIDERATION OF ANY SUCH QUESTION BECAUSE CONGRESS
CHOSE NOT TO MAKE CEILING PRICE THE MEASURE OF "JUST COMPENSATION."  IT
IS THEREFORE AN INESCAPABLE JUDICIAL DUTY TO EXPLORE THE ELEMENTS
RELEVANT TO JUST COMPENSATION EVEN FOR THE TAKING OF PROPERTY WHICH, AS
TO VOLUNTARY TRANSACTIONS, IS SUBJECT TO PRICE CONTROL.  THE STANDARD
OF JUST COMPENSATION IS NOT MECHANICALLY TO BE REPLACED BY CEILING
PRICES. 

IT TAKES US SOME DISTANCE NEITHER WHOLLY TO ACCEPT NOR WHOLLY TO
REJECT PRICE CEILINGS AS JUST COMPENSATION.  THE COMPLICATIONS
INTRODUCED BY THE DISPLACEMENT OF FREE MARKET PRICES BY CONTROLLED
PRICES SERVE TO INTENSIFY THE USUAL WARINESS AGAINST UNDUE
GENERALIZATIONS IN ASCERTAINING THE VALUE OF SPECIFIC PROPERTY TAKEN
FOR PUBLIC PURPOSES.  CAUTIOUS EMPIRICISM IS THE MOST PROMISING
ATTITUDE IN DEALING WITH PROBLEMS OF THIS SORT.  THIS MEANS HUGGING AS
CLOSELY AS POSSIBLE THE SHORE OF THE CIRCUMSTANCES OF THE PARTICULAR
CASE. 

ON THE PRESENT RECORD ONLY TWO ISSUES NEED TO BE FACED.  IN ARRIVING
AT JUST COMPENSATION DID THE COURT OF CLAIMS PROPERLY TAKE INTO ACCOUNT
(1) A "RETENTION VALUE" AND (2) THE COST OF THE PEPPER TO COMMODITIES. 

II.  THE COURT OF CLAIMS APPEARS TO HAVE RECOGNIZED AS A COMPONENT OF
JUST COMPENSATION THE RIGHT OF A PROPERTY OWNER TO WITHHOLD HIS
PROPERTY FOR SOME FUTURE OPPORTUNITY OF ENHANCED REALIZATION, EVEN
THOUGH HE BE IN THE SAME BOAT WITH ALL OTHER OWNERS FOR WHOM THE
CEILING PRICE IS A FAIR MEASURE.  IN ITS BEARING UPON OUR IMMEDIATE
PROBLEM, RECOGNITION OF SUCH A "RETENTION VALUE" AS PART OF THE
CONTEMPORANEOUS VALUE OF WHAT WAS TAKEN WOULD HAVE REQUIRED THE POWER
TO "DIVINE PROPHETICALLY" THE WAR'S END AND THE LIFTING OF CONTROLS BY
CONGRESS AS WELL AS THE STATE OF THE PEPPER MARKET THEREAFTER.  THIS IS
"TO EXACT GIFTS THAT MANKIND DOES NOT POSSESS."  INTERNATIONAL
HARVESTER CO. V. KENTUCKY, 234 U.S. 216, 223, 224.  TO ALLOW SUCH WILD
IMAGINATION TO ENTER INTO THE PRACTICAL DETERMINATION OF WHAT IS JUST
COMPENSATION WOULD MERELY SANCTION UNBRIDLED DRAFTS ON THE TREASURY. 
IT WOULD ENCOURAGE EVERY PROPERTY OWNER TO HOLD HIS GOODS OFF THE
MARKET AND TO FORCE THE GOVERNMENT TO REQUISITION RATHER THAN
PURCHASE.  THAT, BY SUCH RETENTION, PROFITS MIGHT BE REALIZED IN THE
DISTANT FUTURE IS NOT AN INTEREST WHICH THE CONSTITUTION PROTECTS. 
THE DIFFUSED LOSS OF PROFIT THROUGHOUT THE NATION'S ECONOMY MUST BE
BORNE AS A PART OF THE COMMON LOT.  OF A DIFFERENT ORDER OF LOSS WOULD
BE A TAKING OF THE PEPPER AT CEILING PRICES, IF THE CEILING PRICE WAS
FAR BELOW THE COST OF THE PEPPER TO COMMODITIES AND SUCH COST WAS
INCURRED IN THE NORMAL COURSE OF LONG-TERM HOLDING OPERATIONS.  THIS
MIGHT PRESENT A SITUATION WHEREBY THE OWNER OF THE REQUISITIONED
PROPERTY WOULD BE ASKED TO BEAR MORE THAN ITS FAIR SHARE OF THE JUST
ECONOMIC BURDEN OF THE WAR.    III.  THE COURT OF CLAIMS FOUND THAT THE
COST TO COMMODITIES OF THE REQUISITIONED PEPPER WAS 12.7 CENTS PER
POUND COMPARED WITH THE CEILING PRICE OF 6.5 CENTS.  THE GOVERNMENT
CHALLENGES THE COST FIGURES.  IT POINTS OUT THAT COMMODITIES KEPT ITS
COST RECORDS ON THE BASIS OF SPECIFIC BAGS OF PEPPER, EACH BAG BEING
RECORDED AT ITS INVOICE COST AND THE APPLICABLE CARRYING CHARGES. 
COMMODITIES SELECTED THE BAGS OF PEPPER DELIVERED TO THE GOVERNMENT. 
APPARENTLY IT CHOSE THE BAGS WHICH HAD THE HIGHEST INVOICE COST AND THE
GREATEST CARRYING CHARGES, THE PEPPER BOUGHT IN 1933-1936.  ASSUMING
THAT COSTS HIGHER THAN CEILING PRICES MAY AFFECT JUST COMPENSATION, THE
COURT OF CLAIMS SHOULD HAVE CONSIDERED WHETHER THE HIGH COST OF THE
PEPPER TURNED OVER TO THE GOVERNMENT WAS DUE TO COMMODITIES' ACCOUNTING
SYSTEM.  SINCE PEPPER IS FUNGIBLE AND DOES NOT HAVE AGE VALUE, FOR ALL
THAT APPEARS COMMODITIES' METHOD OF COMPUTING COSTS MAY HAVE BEEN
UNFAIR TO THE GOVERNMENT.  "JUST COMPENSATION" IS NOT A FUNCTION OF A
SELLER'S THEORY OF ACCOUNTING. 

THE COURT'S OPINION, HOWEVER, HOLDS THAT WHATEVER THE COSTS THEY ARE
IRRELEVANT IN ASSESSING JUST COMPENSATION.  THEREBY THE COURT
DISREGARDS IN THE CONCRETE THE PRINCIPLE WHICH IT AVOWS IN THE ABSTRACT
- NAMELY, THAT CEILING PRICES ARE NOT TO BE DEEMED AS THOUGH THEY WERE
VALUES ARRIVED AT IN A FREE MARKET AND THAT INDIVIDUAL INSTANCES OF
HARDSHIP MAY PROPERLY RECEIVE INDIVIDUAL CONSIDERATION.  THE COURT
URGES THAT HIGH COSTS WOULD BE IRRELEVANT IN PEACETIME WHEN AN
UNCONTROLLED MARKET DETERMINES VALUE.  COMPARE VOGELSTEIN & CO. V.
UNITED STATES, 262 U.S. 337.  BUT A CONTROLLED MARKET IS NOT AN
UNCONTROLLED MARKET.  ONLY BY TREATING A CONTROLLED MARKET AS THE
EQUIVALENT OF AN UNCONTROLLED MARKET CAN CEILING PRICES BE MADE THE
EQUIVALENT OF MARKET VALUE AND THEREBY THE MEASURE OF JUST
COMPENSATION. 

SINCE "JUST COMPENSATION" IS NOT EASILY REDUCED TO QUANTITATIVE
DETERMINATION, THE PRICE WHICH IS ARRIVED AT THROUGH THE HAGGLING OF
THE MARKET IS THE ACCEPTED NORM IN DETERMINING JUST COMPENSATION.  THE
LAW SENSIBLY RECOGNIZES THAT MARKET PRICE REFLECTS FAIR DEALING BY MEN
WHO ARE FREELY ENGAGED IN IT.  BUT THE PSYCHOLOGICAL BASIS FOR THE NORM
IS GONE WHEN THE AREA OF FAIR DEALING IS ELIMINATED.  THE REPLACEMENT
OF THE FREE JOSTLING OF THE DESIRES OF BUYERS AND SELLERS BY GOVERNMENT
EDICT IS NO DOUBT DUE TO THE REALIZATION THAT UNDER THE ABNORMAL
CIRCUMSTANCES OF WAR A FREE MARKET IN THE SENSE OF BEING UNCONTROLLED
IS NOT A FAIR MARKET.  BUT SUCH PRICE REGULATION IS THE IMPOSITION OF
THE WILL OF OUTSIDERS AND NOT THE DISTILLATION OF FREELY DIRECTED WILLS
GUIDED BY SELF-INTEREST.  THE NORM OF PRICE FIXING BY GOVERNMENT IS
THUS VERY DIFFERENT FROM THE USUAL PRICE FIXING BY FREE EXCHANGE. 
GOVERNMENTAL PRICE FIXING CARRIES ITS OWN VALID TITLES FOR RESPECT BY
THE COURTS.  BUT IT DOES NOT CARRY THAT TITLE OF SELF-DETERMINATION, AS
IT WERE, WHICH IS IMPLIED BY A FREE MARKET PRICE.  WANT OF A FREE
MARKET VALUE DOES NOT REQUIRE US TO EMBRACE AUTOMATICALLY THE CEILING
PRICE IN DISREGARD OF OTHER RELEVANT CIRCUMSTANCES BEARING ON JUSTICE
IN A PARTICULAR CASE. 

COSTS, UNLIKE "RETENTION VALUE," DO NOT YIELD INHERENTLY SPECULATIVE
RESULTS.  INCLUDING COSTS IN COMPUTING JUST COMPENSATION DOES NOT GIVE
THE CONDEMNEE A "WAR PROFIT" NOR MAKE INROADS ON THE SYSTEM OF PRICE
CONTROLS.  SUCH INCLUSION IS A SAFEGUARD AGAINST DISCRIMINATING
HARDSHIPS RESULTING FROM A FORMULA WHICH IS GENERALLY FAIR BUT WHICH BY
ITS NATURE CANNOT BE FAIR TO EACH INDIVIDUAL.  BY THE TERMS OF THE
PRICE CONTROL ACT THE ONLY STANDARD WHICH CONGRESS LAID DOWN FOR PRICE
FIXING WAS THAT THE CEILING PRICE BE "GENERALLY FAIR AND EQUITABLE." 
THE ACT ITSELF MADE NO PROVISION FOR INDIVIDUAL RELIEF FROM THE GENERAL
PRICE.  THE ADMINISTRATIVE DISCRETION FOR ENFORCING THE ACT VESTED IN
THE PRICE ADMINISTRATOR NO DOUBT AUTHORIZED HIM TO QUALIFY THE PRICES
HE FIXED BY PROCEDURE FOR INDIVIDUAL RELIEF THEREFROM.  AS TO MANY
COMMODITIES THE MAXIMUM PRICE SCHEDULES DID INCLUDE SUCH PROVISIONS. 
THE PRICE REGULATION REGARDING THE PEPPER REQUISITIONED FROM
COMMODITIES CONTAINED NO SUCH PROVISION.  THERE WAS NO WAY, THEREFORE,
BY WHICH COMMODITIES COULD HAVE HAD RELIEF FROM ANY UNFAIRNESS OF THE
MAXIMUM PRICE AFFECTING ITS PEPPER BY REASON OF THE HIGH COST WHICH, ON
THE BASIS OF LEGITIMATE BUSINESS CONSIDERATIONS, IT PAID. 

IT IS SIGNIFICANT THAT CONGRESS PROVIDED IN SEC. 4(D) OF THE
EMERGENCY PRICE CONTROL ACT THAT "NOTHING IN THIS ACT SHALL BE
CONSTRUED TO REQUIRE ANY PERSON TO SELL ANY COMMODITY  ...  "  56 STAT.
28, 50 U.S.C. APP. SEC. 904(D).  THIS PROTECTIVE PROVISION IS
PECULIARLY APPLICABLE TO SELLERS WHO HAD ACQUIRED NONPERISHABLE
PROPERTY BY WAY OF REASONABLE INVESTMENT AT COSTS ABOVE THE CEILING
PRICE.  UNDER SEC. 4(D) THEY WERE NOT REQUIRED TO TAKE A LOSS.  BUT
TODAY'S DECISION WITHDRAWS THAT STATUTORY PROTECTION FROM THOSE
SUBJECTED TO THE EXERCISE OF THE GOVERNMENT'S POWER OF CONDEMNATION. 
IT MAY BE THAT, DESPITE SEC. 4(D), CERTAIN SELLERS WITH HIGH COSTS
WOULD HAVE HAD TO SELL IN THE PRIVATE MARKET BECAUSE OF ECONOMIC
FACTORS.  THERE IS CONSIDERABLE DIFFERENCE, HOWEVER, BETWEEN HARDSHIPS
RESULTING FROM THE IMPERSONAL WORKINGS OF A GENERAL REGULATION AND THE
PERSONAL OPERATION OF THE POWER OF EMINENT DOMAIN, UNDER WHICH
GOVERNMENT OFFICIALS HAVE COMPLETE DISCRETION TO SELECT THE INDIVIDUAL
WHO SHALL GIVE UP HIS PROPERTY AT A LOSS FOR THE PUBLIC GOOD. 

WE NEED NOT DECIDE WHETHER COSTS EXCEEDING THE CEILING PRICE ARE
ALWAYS RELEVANT TO JUST COMPENSATION OR THE EXTENT TO WHICH THEY MAY
QUALIFY THE CEILING PRICE.  IT IS ENOUGH TO HOLD THAT, IF COMMODITIES'
COSTS, FAIRLY MEASURED, WERE GREATER THAN THE CEILING PRICE FOR PEPPER,
IT IS FAIR TO TAKE THEM INTO ACCOUNT.  WE ARE NOT DEALING HERE WITH A
HOARDER OR WITH ONE WHO BOUGHT PROPERTY AT RECKLESSLY HIGH COSTS IN THE
EXPECTATION THAT, IN ANY EVENT, THE GOVERNMENT WOULD REIMBURSE HIM. 
COMMODITIES DID NOT SUDDENLY SHIFT FROM "SELLER" TO "HOLDER" UPON
IMPOSITION OF CONTROLS IN 1941; WHILE IT REDUCED ITS TOTAL STOCKS
BETWEEN 1938 AND 1941, THE COURT OF CLAIMS FOUND THAT IT WAS
ESSENTIALLY A "HOLDER" FROM 1933 ON.  NOR DID COMMODITIES MAKE
SUBSTANTIAL SALES TO PRIVATE PERSONS AT THE CEILING PRICE, AND HOLD OUT
AGAINST THE GOVERNMENT.  IT MERELY EXERCISED ITS STATUTORY RIGHT TO
REFUSE TO SELL, A DECISION ETHICALLY JUSTIFIED IF BY SELLING IT WOULD
INCUR AN HONEST LOSS. 

IV.  THE ERROR OF THE COURT OF CLAIMS IN APPLYING THE DOCTRINE OF
"RETENTION VALUE" REQUIRES REVERSAL OF ITS JUDGMENT.  THAT COURT SHOULD
REEXAMINE COMMODITIES' COSTS AND IF, UNDER A FAIR ACCOUNTING THEORY,
THOSE COSTS PROVE TO BE HIGHER THAN CEILING, THEY SHOULD BE CONSIDERED
IN THE COMPUTATION OF JUST COMPENSATION. 

FN1  EMERGENCY PRICE CONTROL ACT SEC. 2(A), 56 STAT. 24, 50 U.S.C.
APP. SEC. 902(A). 

MR. JUSTICE JACKSON, DISSENTING. 

WHEN CONGRESS ENACTED THE EMERGENCY PRICE CONTROL ACT, IT PROVIDED
THAT "NOTHING IN THIS ACT SHALL BE CONSTRUED TO REQUIRE ANY PERSON TO
SELL ANY COMMODITY  ...  "  56 STAT. 28, SEC. 4(D), 50 U.S.C APP. SEC.
904(D).  OF COURSE, CONGRESS DID NOT THEREBY SURRENDER THE GOVERNMENT'S
RIGHT TO REQUISITION ANY GOODS IT MIGHT WANT UNDER THE USUAL EMINENT
DOMAIN POWERS AND FOR "JUST COMPENSATION."  WHY THEN THIS PROVISION? 

IT SEEMS OBVIOUS THAT THE PURPOSE WAS TO AVOID JUST WHAT THE COURT
DOES TODAY - MAKING CEILING PRICES FOR VOLUNTARY SALES THE MEASURE OF
COMPENSATION FOR COMPULSORY SALES.  THIS SEPARATION WAS NOT MADE AS A
FAVOR TO PROFITEERS.  IN UNITED STATES V. FELIN & CO., 334 U.S. 624,
650, WRITING IN DISSENT FOR MR. JUSTICE DOUGLAS AND MYSELF, I SET FORTH
CONSIDERATIONS WHICH WEIGHED HEAVILY UPON THOSE PROPONENTS OF PRICE
CONTROLS WHO WANTED THE CONTROLS TO OPERATE SMOOTHLY AND EXPEDITIOUSLY
AND ALSO TO AVOID CONSTITUTIONAL LITIGATION, OR AT LEAST ADVERSE
DECISIONS.  I SAID THERE: 

"IT IS HARD TO SEE HOW JUST COMPENSATION CAN BE THE LEGAL EQUIVALENT
OF A CONTROLLED PRICE, UNLESS A CONTROLLED PRICE IS ALSO ALWAYS
REQUIRED TO EQUAL JUST COMPENSATION.  IT NEVER HAS BEEN HELD THAT IN
REGULATING A COMMODITY PRICE THE GOVERNMENT IS BOUND TO FIX ONE THAT IS
ADEQUATELY COMPENSATORY IN THE CONSTITUTIONAL SENSE, SO LONG AS THE
OWNER IS FREE TO KEEP HIS PROPERTY OR TO PUT IT ON THE MARKET AS HE
CHOOSES.  IF THE GOVERNMENT WERE REQUIRED TO DO SO, THE TASK OF PRICE
REGULATION WOULD BE CONSIDERABLY, IF NOT DISASTROUSLY, COMPLICATED AND
RETARDED.  IT SEEMS QUITE INDISPENSABLE TO THE GOVERNMENT ITSELF, FOR
THE LONG-RANGE SUCCESS OF PRICE CONTROLS, THAT FIXED PRICES FOR
VOLUNTARY SALES BE NOT IDENTIFIED WITH THE JUST COMPENSATION DUE UNDER
THE CONSTITUTION TO ONE WHO IS COMPELLED TO PART WITH HIS PROPERTY." 
334 U.S. AT 651. 

THE COURT TODAY NULLIFIES THE CONGRESSIONAL POLICY THAT NO ONE IS
COMPELLED TO SELL UNDER THE ACT BY USING THE CONDEMNATION POWER TO
COMPEL THE SALE AND THIS ACT TO FIX THE PRICE.  IT ALSO MAKES THE
CONSTITUTIONAL PROVISION FOR JUST COMPENSATION MEANINGLESS, SINCE THE
GOVERNMENT MAY FIRST FIX THE PRICE, AS IF NO SALES WERE COMPELLED, AND
THEN COMPEL THE SALES AT THE PRICES SO FIXED.  I THINK THE
CONSTITUTIONAL POWER TO FIX PRICES FOR VOLUNTARY SALE IN INTERSTATE
COMMERCE IS MUCH LESS CONFINED THAN THE POWER TO FIX PRICES FOR TAKING
PROPERTY.  BUT HEREAFTER, THE PRICE FIXED MAY HAVE TO BE TESTED BY
WHETHER IT WOULD BE JUST COMPENSATION FOR A COMPULSORY SALE. 

I AGREE THAT THE COURT BELOW ERRED IN ITS THEORY OF "RETENTION
VALUE."  IT DID SO BY MAKING THE SAME BASIC ERROR THIS COURT IS MAKING:
THAT OF COMBINING TWO SEPARATE SYSTEMS - PRICE FIXING AND
CONDEMNATION.  IT CONSIDERED THAT BECAUSE THE EMERGENCY PRICE CONTROL
ACT SAID A CLAIMANT WAS NOT REQUIRED TO SELL UNDER THE ACT, HE MIGHT
RETAIN HIS PROPERTY FOR SOME FUTURE RISE IN MARKET.  BUT IT IS NOT THAT
ACT WHICH MAKES HIM SELL.  IT IS UNDER THE POWER OF EMINENT DOMAIN THAT
THE GOVERNMENT EXPROPRIATES THIS PEPPER.  AND UNDER THAT POWER HE HAS
NO RIGHT OF DELAY AND HENCE NO RETENTION VALUE.  HE MUST PART WITH HIS
PROPERTY ON DEMAND, AND THE ISSUE IS WHAT IS JUST COMPENSATION AT THAT
TIME. 

AT THE TIME OF THIS EXPROPRIATION THERE WAS, INSOFAR AS MARKET PRICES
WERE CONCERNED, A CONTROLLED MARKET IN THE UNITED STATES - CONTROLLED
BY THE GOVERNMENT THAT WAS DOING THE EXPROPRIATING.  THERE WAS ALSO A
WORLD MARKET, WITH FAR HIGHER MARKET PRICES, TO WHICH THE GOVERNMENT
WOULD HAVE HAD RECOURSE HAD NOT THESE PARTIES EARLIER IMPORTED A LARGE
SUPPLY.  MOREOVER, WHILE THE CEILING PRICE ON WHOLE PEPPER WAS KEPT AT
A LOW FIGURE, THE PRICE ON GROUND PEPPER TO THE PUBLIC SHOWED WHAT
SEEMS TO BE AN UNACCOUNTABLY LARGE SPREAD.  THE PROBLEM OF COMBINING
ALL RELEVANT CONSIDERATIONS THAT GO TO A VALUATION IS A DIFFICULT ONE. 

I CONCUR IN THE REVERSAL BUT WOULD RETURN THE CASE FOR
REDETERMINATION OF THE VALUE AT THE DATE OF REQUISITION WITHOUT
ALLOWANCE FOR "RETENTION VALUE."  I SHOULD NOT DIRECT THAT THE CEILING
PRICE BE USED AS THE SOLE MEASURE OF JUST COMPENSATION. 
..END :
























RAILWAY LABOR ASSN. V. U.S., 339 U.S. 142 


NO. 337.  ARGUED FEBRUARY 14, 1950.  - DECIDED MARCH 27, 1950.  - 84
F.SUPP.  178, REVERSED. 


1.  THE INTERSTATE COMMERCE COMMISSION, IN APPROVING A CONSOLIDATION
OF RAILROAD FACILITIES UNDER SEC. 5(2)(F) OF THE INTERSTATE COMMERCE
ACT, HAS THE POWER TO REQUIRE A FAIR AND EQUITABLE ARRANGEMENT TO
PROTECT THE INTERESTS OF RAILROAD EMPLOYEES BEYOND FOUR YEARS FROM THE
EFFECTIVE DATE OF THE ORDER.  PP. 143-155. 

2.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, EFFECTIVE MAY 17,
1948, APPROVING A CONSOLIDATION OF RAILROAD FACILITIES INCIDENT TO THE
CONSTRUCTION OF A PASSENGER TERMINAL AT NEW ORLEANS, REQUIRED THE
CONSTRUCTION TO COMMENCE BY DECEMBER 31, 1948(LATER EXTENDED TO
DECEMBER 31, 1949), AND TO BE COMPLETED BY DECEMBER 31, 1953(LATER
EXTENDED TO DECEMBER 31, 1954).  IT CONTAINED DETAILED PROVISIONS FOR
THE COMPENSATORY PROTECTION OF EMPLOYEES AFFECTED BY THE CONSOLIDATION;
BUT ALL SUCH PROTECTION WAS TO END BY MAY 17, 1952.  MANY EMPLOYEES
AFFECTED BY THE CONSOLIDATION WOULD NOT BE DISPLACED UNTIL THE
COMPLETION OF THE PROJECT, AND THEREFORE WOULD RECEIVE NO COMPENSATORY
PROTECTION.  HELD:  NEITHER SUCH DISCRIMINATION NOR SUCH INSUBSTANTIAL
"PROTECTION" IS CONSISTENT WITH THE PURPOSE AND HISTORY OF SEC. 5(2)(F)
OF THE INTERSTATE COMMERCE ACT.  PP. 143-155. 

3.  WHILE THE COMMISSION'S INTERPRETATION OF SEC. 5(2)(F) AS LIMITING
EMPLOYEE PROTECTION TO A MAXIMUM OF FOUR YEARS FROM THE EFFECTIVE DATE
OF THE ORDER IS ENTITLED TO WEIGHT, ITS DECISIONS RELIED UPON HERE WERE
MADE IN CASES IN WHICH THE ADVERSE EFFECTS OF THE APPROVED TRANSACTIONS
WERE TO BE FELT BY THE EMPLOYEES LONG BEFORE THE EXPIRATION OF SUCH
FOUR YEARS, AND THOSE DECISIONS ARE NOT PERSUASIVE IN THE PRESENT
CASE.  PP. 154-155. 

RAILWAY LABOR EXECUTIVES' ASSOCIATION V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

IN A SUIT TO SET ASIDE PART OF AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION, A THREE-JUDGE DISTRICT COURT GRANTED DEFENDANTS' MOTIONS
FOR SUMMARY JUDGMENT AND DISMISSED THE COMPLAINT.  84 F.SUPP.  178.  ON
DIRECT APPEAL TO THIS COURT, REVERSED AND REMANDED, P. 155. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON TO DECIDE WHETHER THE INTERSTATE COMMERCE
COMMISSION, IN APPROVING A CONSOLIDATION OF RAILROAD FACILITIES UNDER
SEC. 5(2)(F) OF THE INTERSTATE COMMERCE ACT,  FN1  HAS THE POWER TO
EXTEND THE PERIOD OF PROTECTION OF THE INTERESTS OF THE RAILROAD
EMPLOYEES BEYOND FOUR YEARS FROM THE EFFECTIVE DATE OF THE ORDER.  FOR
THE REASONS HEREAFTER STATED, WE HOLD THAT THE COMMISSION HAS THAT
POWER. 

IN 1947, THE CITY OF NEW ORLEANS, LOUISIANA, AND SEVERAL COMMON
CARRIERS BY RAILROAD, ALL APPELLEES HEREIN, FILED WITH THE INTERSTATE
COMMERCE COMMISSION A JOINT APPLICATION FOR AUTHORITY TO CONSTRUCT,
ACQUIRE AND JOINTLY OWN OR USE CERTAIN LINES OF RAILROAD, AS WELL AS TO
ABANDON CERTAIN OTHER LINES OR OPERATIONS, AS INCIDENTS TO THE
CONSTRUCTION OF A PASSENGER TERMINAL AT NEW ORLEANS.  THE RAILWAY LABOR
EXECUTIVES' ASSOCIATION, APPELLANT HEREIN, INTERVENED AS A
REPRESENTATIVE OF THE INTERESTS OF THE EMPLOYEES OF THE RAILROADS. 
DIVISION 4 OF THE COMMISSION ENTERED A REPORT AND ORDER, EFFECTIVE MAY
17, 1948, APPROVING AND AUTHORIZING THE TRANSACTIONS.  NEW ORLEANS
UNION PASSENGER TERMINAL CASE, 267 I.C.C. 763, AND SEE OKLAHOMA R. CO.
TRUSTEES ABANDONMENT, 257 I.C.C. 177, 197-201. 

THE ORDER REQUIRED THE CONSTRUCTION OF THE PROPOSED LINES TO COMMENCE
BY DECEMBER 31, 1948(LATER EXTENDED TO DECEMBER 31, 1949), AND TO BE
COMPLETED BY DECEMBER 31, 1953(LATER EXTENDED TO DECEMBER 31, 1954). 
IT CONTAINED DETAILED PROVISIONS FOR THE COMPENSATORY PROTECTION OF
EMPLOYEES AFFECTED BY THE CONSOLIDATION, BUT ALL SUCH PROTECTION WAS TO
END BY MAY 17, 1952.  THE ORDER DISCLOSED THAT MANY EMPLOYEES AFFECTED
BY THE CONSOLIDATION WOULD NOT BE DISPLACED UNTIL THE COMPLETION OF THE
PROJECT AND THAT, THEREFORE, THEY WOULD RECEIVE NO COMPENSATORY
PROTECTION.  FN2 

AFTER UNSUCCESSFULLY SEEKING RECONSIDERATION AND MODIFICATION OF THE
ORDER BY THE FULL COMMISSION, THE APPELLANT SUED THE UNITED STATES (SEE
28 U.S.C. SEC. 2322), IN THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA, ASKING THAT COURT TO SET ASIDE THAT PART OF THE COMMISSION'S
ORDER WHICH LIMITED THE PERIOD OF PROTECTION TO FOUR YEARS.  THE
COMMISSION AND THE RAILROADS INTERVENED, ANSWERS WERE FILED AND, NO
FACTS BEING IN DISPUTE, ALL PARTIES SOUGHT A SUMMARY JUDGMENT.  THE
CASE WAS HEARD BY A THREE-JUDGE DISTRICT COURT (SEE 28 U.S.C. SECS.
1336, 2325 AND 2284) WHICH GRANTED THE DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT AND DISMISSED THE COMPLAINT.  84 F.SUPP.  178.  THE CASE IS
HERE ON DIRECT APPEAL.  28 U.S.C. SECS. 1253 AND 2101(B). 


"AS A CONDITION OF ITS APPROVAL, UNDER THIS PARAGRAPH (2), OF ANY
TRANSACTION INVOLVING A CARRIER OR CARRIERS BY RAILROAD SUBJECT TO THE
PROVISIONS OF THIS PART, THE COMMISSION SHALL REQUIRE A FAIR AND
EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS OF THE RAILROAD
EMPLOYEES AFFECTED.  IN ITS ORDER OF APPROVAL THE COMMISSION SHALL
INCLUDE TERMS AND CONDITIONS PROVIDING THAT DURING THE PERIOD OF FOUR
YEARS FROM THE EFFECTIVE DATE OF SUCH ORDER SUCH TRANSACTION WILL NOT
RESULT IN EMPLOYEES OF THE CARRIER OR CARRIERS BY RAILROAD AFFECTED BY
SUCH ORDER BEING IN A WORSE POSITION WITH RESPECT TO THEIR EMPLOYMENT,
EXCEPT THAT THE PROTECTION AFFORDED TO ANY EMPLOYEE PURSUANT TO THIS
SENTENCE SHALL NOT BE REQUIRED TO CONTINUE FOR A LONGER PERIOD,
FOLLOWING THE EFFECTIVE DATE OF SUCH ORDER, THAN THE PERIOD DURING
WHICH SUCH EMPLOYEE WAS IN THE EMPLOY OF SUCH CARRIER OR CARRIERS PRIOR
TO THE EFFECTIVE DATE OF SUCH ORDER.  NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS ACT, AN AGREEMENT PERTAINING TO THE PROTECTION OF
THE INTERESTS OF SAID EMPLOYEES MAY HEREAFTER BE ENTERED INTO BY ANY
CARRIER OR CARRIERS BY RAILROAD AND THE DULY AUTHORIZED REPRESENTATIVE
OR REPRESENTATIVES OF ITS OR THEIR EMPLOYEES."  54 STAT. 906-907, 49
U.S.C. SEC. 5(2)(F). 

THE APPELLANT AND THE UNITED STATES  FN3  CONTEND THAT THE FIRST
SENTENCE OF SEC. 5(2)(F) REQUIRES THE COMMISSION TO CONDITION ITS
APPROVAL UPON A FAIR AND EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS
OF RAILROAD EMPLOYEES AFFECTED BY THIS CONSOLIDATION.  THEY CONTEND
ALSO THAT THE SECOND SENTENCE PRESCRIBES A MINIMUM OF PROTECTION BUT
DOES NOT RESTRICT THE COMMISSION'S POWER, UNDER THE FIRST SENTENCE, TO
PRESCRIBE FURTHER PROTECTION IF SUCH PROTECTION IS DEEMED NECESSARY TO
MAKE THE ARRANGEMENT FAIR AND EQUITABLE TO THE EMPLOYEES.  THE
COMMISSION, ON THE OTHER HAND, ARGUES THAT THE SECOND SENTENCE SETS AN
INFLEXIBLE STANDARD FOR THE FAIR AND EQUITABLE ARRANGEMENT REQUIRED BY
THE FIRST SENTENCE.  THE COMMISSION CONCLUDES, THEREFORE, THAT, IN THIS
CASE, IT HAS POWER TO REQUIRE ONLY SUCH AN ARRANGEMENT AS WILL PREVENT
THE AFFECTED EMPLOYEES FROM BEING IN A WORSE POSITION WITH RESPECT TO
THEIR EMPLOYMENT FOR A MAXIMUM PERIOD OF FOUR YEARS FROM THE EFFECTIVE
DATE OF THE ORDER APPROVING THE PROJECT.  FN4 

BEFORE THE TRANSPORTATION ACT OF 1940 BROUGHT SEC. 5(2)(F) INTO THE
INTERSTATE COMMERCE ACT, THERE WAS NO STATUTORY PROVISION SPECIFICALLY
REQUIRING THE PROTECTION OF EMPLOYEES AFFECTED BY CONSOLIDATIONS OF
RAILROAD FACILITIES.  THE PRECURSOR OF THIS PROVISION WAS SEC. 5(4)(B),
AS AMENDED BY THE EMERGENCY RAILROAD TRANSPORTATION ACT OF 1933.  THAT
TERMS AND CONDITIONS  ...  FOUND TO BE JUST AND REASONABLE."  FN5
THERE WAS, HOWEVER, A WIDESPREAD AWARENESS IN THE RAILROAD INDUSTRY
THAT MANY OF THE ECONOMIES TO BE GAINED FROM CONSOLIDATIONS OR
ABANDONMENTS COULD BE REALIZED ONLY AT THE EXPENSE OF DISPLACED
RAILROAD LABOR.  THE INTERESTS OF SUCH EMPLOYEES WERE RECOGNIZED IN THE
WASHINGTON JOB PROTECTIVE AGREEMENT OF 1936.  FN6  THIS WAS A
COLLECTIVE BARGAINING CONTRACT APPROVED BY ABOUT 85% OF THE RAILROAD
CARRIERS AND 20 OF THE 21 RAILROAD BROTHERHOODS.  IT CONTAINED A
SCHEDULE OF SUBSTANTIAL FINANCIAL BENEFITS RECOMMENDED FOR EMPLOYEES
ADVERSELY AFFECTED BY CONSOLIDATIONS OR SO-CALLED "COORDINATIONS." 
FN7 

WHEN, IN 1939, THIS COURT HELD THAT THE COMMISSION HAD POWER TO
PRESCRIBE TERMS AND CONDITIONS COMPARABLE TO THOSE IN THE WASHINGTON
AGREEMENT.  UNITED STATES V. LOWDEN, 308 U.S. 225.  THE COMMISSION'S
REQUIREMENT, IN THAT CASE, OF A PROTECTIVE PERIOD OF FIVE YEARS WAS
SUSTAINED.  THUS, AT THE TIME OF THE ENACTMENT OF SEC. 5(2)(F), THE
COMMISSION ALREADY HAD POWER TO DETERMINE AND PRESCRIBE JUST AND
REASONABLE TERMS AND CONDITIONS TO PROTECT EMPLOYEES AFFECTED BY
CONSOLIDATIONS.  FN8 

THE LEGISLATIVE HISTORY OF SEC. 5(2)(F) SHOWS THAT ONE OF ITS
PRINCIPAL PURPOSES WAS TO PROVIDE MANDATORY PROTECTION FOR THE
INTERESTS OF EMPLOYEES AFFECTED BY RAILROAD CONSOLIDATIONS.  IN 1938,
THE PRESIDENT APPOINTED A COMMITTEE OF SIX TO CONSIDER THE
TRANSPORTATION PROBLEM AND RECOMMEND LEGISLATION.  FN9  IT WAS COMPOSED
EQUALLY OF REPRESENTATIVES OF RAILROAD MANAGEMENT AND RAILROAD LABOR. 
THEY ENDORSED THE WASHINGTON AGREEMENT AND RECOMMENDED AMENDING SEC. 5
OF THE INTERSTATE COMMERCE ACT SO AS TO INCLUDE THE FOLLOWING: 

"AFTER THE DETAILS OF ANY PROPOSED CONSOLIDATION HAVE BEEN DETERMINED
BY THE INTERESTS INVOLVED, THEY SHOULD BE EMBODIED IN AN APPLICATION
FOR APPROVAL, ADDRESSED TO THE TRANSPORTATION BOARD.  IN PASSING UPON
SUCH AN APPLICATION, THE BOARD SHOULD BE GOVERNED BY THE FOLLOWING
CONSIDERATIONS: 

     .         .         .         .   . 

"(D)  THE INTERESTS OF THE EMPLOYEES AFFECTED.  THE BOARD SHALL
EXAMINE INTO THE PROBABLE RESULTS OF THE PROPOSED CONSOLIDATION AND
REQUIRE, AS A PREREQUISITE TO ITS APPROVAL, A FAIR AND EQUITABLE
ARRANGEMENT TO PROTECT THE INTERESTS OF THE SAID EMPLOYEES."  FN10 

MARCH 30, 1939, SENATORS WHEELER AND TRUMAN INTRODUCED S. 2009,
WHICH, IN SEC. 49(3)(C), CONTAINED SUBSTANTIALLY THE ABOVE LANGUAGE: 

"THE COMMISSION SHALL REQUIRE, AS A PREREQUISITE TO ITS APPROVAL OF
ANY PROPOSED TRANSACTION UNDER THE PROVISIONS OF THIS SECTION, A FAIR
AND EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS OF THE EMPLOYEES
AFFECTED."  FN11 

IN THE MEANTIME, THE HOUSE OF REPRESENTATIVES CONSIDERED A COMPARABLE
BILL, H.R. 4862, INTRODUCED BY REPRESENTATIVE LEA.  EXTENDED HEARINGS
WERE HELD.  ON THE ISSUE BEFORE US, THIS BILL CONTAINED THE SAME
LANGUAGE AS DID THE SENATE BILL.  IT REQUIRED, AS A PREREQUISITE TO THE
COMMISSION'S APPROVAL, "A FAIR AND EQUITABLE ARRANGEMENT TO PROTECT THE
INTERESTS OF THE EMPLOYEES AFFECTED."  FN12  WHEN S. 2009 REACHED THE
HOUSE, THE COMMITTEE IN CHARGE OF IT STRUCK OUT EVERYTHING AFTER THE
ENACTING CLAUSE, SUBSTITUTED THE TEXT OF THE HOUSE BILL AND RECOMMENDED
ITS PASSAGE.  IN IT, THE PROVISION IN QUESTION TOOK THE FORM OF AN
AMENDMENT TO SEC. 5 OF THE INTERSTATE COMMERCE ACT. 

IF THIS PROVISION, WHICH LATER BECAME THE FIRST SENTENCE OF SEC.
5(2)(F), NOW STOOD ALONE AS IT DID THEN, THE COMMISSION UNQUESTIONABLY
WOULD HAVE POWER TO GRANT AT LEAST AS MUCH RELIEF TO EMPLOYEES AS IT
HAD UNDER SEC. 5(4)(B).  THE CRUCIAL QUESTION IS WHETHER THE SECOND
SENTENCE OF SEC. 5(2)(F), WHICH WAS INSERTED SOON THEREAFTER, AMOUNTS
NOT ONLY TO AN ADDITIONAL PROVISION FOR THE PROTECTION OF LABOR, BUT
ALSO TO A LIMITATION UPON THE DISCRETION VESTED IN THE COMMISSION BY
THE FIRST SENTENCE. 

THE SECOND SENTENCE OF SEC. 5(2)(F) HAS A SIGNIFICANT HISTORY OF ITS
OWN.  ON THE FLOOR OF THE HOUSE, REPRESENTATIVE HARRINGTON SUGGESTED
THE FOLLOWING PROVISO TO FOLLOW THE FIRST SENTENCE: 

"PROVIDED, HOWEVER, THAT NO SUCH TRANSACTION SHALL BE APPROVED BY THE
COMMISSION IF SUCH TRANSACTION WILL RESULT IN UNEMPLOYMENT OR
DISPLACEMENT OF EMPLOYEES OF THE CARRIER OR CARRIERS, OR IN THE
IMPAIRMENT OF EXISTING EMPLOYMENT RIGHTS OF SAID EMPLOYEES."  FN13 

THE HARRINGTON AMENDMENT THUS INTRODUCED A NEW PROBLEM.  UNTIL IT
APPEARED, THERE HAD BEEN SUBSTANTIAL AGREEMENT ON THE NEED FOR
CONSOLIDATIONS, TOGETHER WITH A RECOGNITION THAT EMPLOYEES COULD AND
SHOULD BE FAIRLY AND EQUITABLY PROTECTED.  THIS AMENDMENT, HOWEVER,
THREATENED TO PREVENT ALL CONSOLIDATIONS TO WHICH IT RELATED. 

WITH THE HARRINGTON AMENDMENT IN IT THE BILL WENT TO CONFERENCE. 
FN14  IT CAME OUT WITH ALL PROVISIONS RELATING TO CONSOLIDATIONS UNDER
SEC. 5 ELIMINATED.  THE HOUSE, HOWEVER, RECOMMITTED THE BILL TO
CONFERENCE WITH INSTRUCTIONS TO INSERT A MODIFIED FORM OF THE FIRST
SENTENCE OF SEC. 5(2)(F), TOGETHER WITH A MODIFIED FORM OF THE
HARRINGTON AMENDMENT.  THE MODIFICATION OF THE FIRST SENTENCE MERELY
EXTENDED THE ORIGINAL LANGUAGE AS TO FAIR AND EQUITABLE ARRANGEMENTS SO
AS TO INCLUDE ABANDONMENTS AS WELL AS CONSOLIDATIONS.  FN15  THE
MODIFICATION OF THE HARRINGTON AMENDMENT IS NOT NOW MATERIAL. 

THE SECOND CONFERENCE REPORTED SEC. 5(2)(F) IN THE FINAL FORM IN
WHICH IT WAS ENACTED INTO LAW.  IT RETAINED THE FIRST SENTENCE IN ITS
ORIGINAL LANGUAGE.  FN16  IN THE SECOND SENTENCE, HOWEVER, IT INCLUDED
A SUBSTANTIAL CHANGE IN THE HARRINGTON PROPOSAL.  IT LIMITED IT TO THE
FOUR YEARS FOLLOWING THE EFFECTIVE DATE OF THE COMMISSION'S ORDER OF
APPROVAL.  IT PROVIDED ALSO THAT IN EACH CASE THE PROTECTIVE PERIOD WAS
NOT TO EXCEED THE LENGTH OF EACH EMPLOYEE'S EMPLOYMENT BY A CARRIER
PRIOR TO THE EFFECTIVE DATE OF THE COMMISSION'S ORDER OF APPROVAL. 
THIS CLAUSE EMPHASIZED THE SEPARABILITY OF THE SECOND SENTENCE, FOR IT
PROVIDED THAT "THE PROTECTION AFFORDED TO ANY EMPLOYEE PURSUANT TO THIS
SENTENCE SHALL NOT BE REQUIRED TO CONTINUE FOR A LONGER PERIOD,  ..." 
THAN THAT PRESCRIBED.  (SEE P. 145, SUPRA, FOR FULL TEXT OF THE
CLAUSE.) 

THE SECOND SENTENCE THUS GAVE A LIMITED SCOPE TO THE HARRINGTON
AMENDMENT AND MADE IT WORKABLE BY PUTTING A TIME LIMIT UPON ITS
OTHERWISE PROHIBITORY EFFECT.  THERE WAS NO COMPARABLE NEED FOR SUCH A
RESTRICTION UPON THE FIRST SENTENCE.  WE FIND, THEREFORE, THAT THE TIME
LIMIT IN THE SECOND SENTENCE NOW APPLIES TO IT AND TO IT ALONE.  AS
THUS LIMITED, THAT SENTENCE ADDS A NEW GUARANTY OF PROTECTION FOR THE
INTERESTS OF EMPLOYEES, WITHOUT RESTRICTING THE COMMISSION'S POWER TO
REQUIRE GREATER PROTECTION AS PART OF A FAIR AND EQUITABLE
ARRANGEMENT.  THIS SERVES THE PURPOSE OF THE SENTENCE TO INCREASE,
RATHER THAN TO DECREASE, THE PROTECTIVE EFFECT OF THE PARAGRAPH. 

UNDER THE COMMISSION'S ORDER IN THE INSTANT CASE, EMPLOYEES DISPLACED
THROUGH THE EARLY ELIMINATION OF GRADE CROSSINGS OR OTHERWISE MAY
RECEIVE COMPENSATORY PROTECTION UP TO MAY 17, 1952, BUT EMPLOYEES
DISPLACED AFTER THAT DATE WILL RECEIVE NONE.  THEY WILL HAVE HAD LONG
NOTICE THAT, BY 1954, THEY MAY BE DISPLACED.  BUT THAT MUCH
"PROTECTION" AGAINST THE ADVERSE EFFECTS OF THE CONSOLIDATION WOULD
HAVE BEEN AVAILABLE TO THEM WITHOUT SEC. 5(2)(F).  NEITHER SUCH
DISCRIMINATION NOR SUCH INSUBSTANTIAL "PROTECTION" IS CONSISTENT WITH
THE PURPOSE OR THE HISTORY OF THE PROVISION.    THE COMMISSION'S
INTERPRETATION OF THIS STATUTE, ALTHOUGH ENTITLED TO WEIGHT, IS NOT
PERSUASIVE.  ITS PRESENT VIEW OF ITS AUTHORITY IS OUT OF HARMONY WITH
ITS BROAD VIEW OF ITS AUTHORITY UNDER SEC. 5(4)(B), APPROVED IN UNITED
STATES V. LOWDEN, SUPRA.  IT ALSO IS INCONSISTENT WITH THE BROAD
CONSTRUCTION GIVEN BY THIS COURT TO SEC. 1(18)-(20) AS TO
ABANDONMENTS.  INTERSTATE COMMERCE COMMISSION V. RAILWAY LABOR
EXECUTIVES ASSN., 315 U.S. 373.  THE COMMISSION'S OWN DECISIONS UNDER
SEC. 5(2)(F), RELIED UPON HERE, HAVE BEEN MADE IN CASES IN WHICH THE
ADVERSE EFFECTS OF THE APPROVED TRANSACTIONS WERE TO BE FELT BY THE
EMPLOYEES LONG BEFORE THE EXPIRATION OF FOUR YEARS FROM THE EFFECTIVE
DATE OF THE ORDER OF APPROVAL.  FN17  FOR EXAMPLE, IN CHICAGO, M., ST.
P. & P.R. CO. TRUSTEES CONSTRUCTION, 257 I.C.C. 292, WHICH IS
PRINCIPALLY RELIED UPON BY THE COMMISSION, THE CONSTRUCTION ORIGINALLY
WAS REQUIRED TO BE COMPLETED DECEMBER 31, 1943, AND THAT DATE WAS
EXTENDED TO DECEMBER 31, 1944, BUT THE EFFECTIVE DATE OF THE ORDER OF
APPROVAL WAS APRIL 26, 1942, SO THAT THE MINIMUM PROTECTIVE PERIOD OF
FOUR YEARS DID NOT EXPIRE UNTIL 1946.  IN THAT CASE, THE COMMISSION DID
NOT ELIMINATE ALL COMPENSATORY PROTECTION AS IT HAS FOR MANY EMPLOYEES
HERE. 

WE CONCLUDE, THEREFORE, THAT THE COMMISSION, WHILE REQUIRED TO
OBSERVE THE PROVISIONS OF THE SECOND SENTENCE OF SEC. 5(2)(F) AS A
MINIMUM PROTECTION FOR EMPLOYEES ADVERSELY AFFECTED, IS NOT CONFINED TO
THE FOUR-YEAR PROTECTIVE PERIOD AS A STATUTORY MAXIMUM.  THE COMMISSION
HAS THE POWER TO REQUIRE A FAIR AND EQUITABLE ARRANGEMENT TO PROTECT
THE INTERESTS OF RAILROAD EMPLOYEES BEYOND FOUR YEARS FROM THE
EFFECTIVE DATE OF THE ORDER APPROVING THE CONSOLIDATION. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND IT TO THE INTERSTATE
COMMERCE COMMISSION FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  54 STAT. 906-907, 49 U.S.C. SEC. 5(2)(F). 

FN2  "THE TOTAL NUMBER OF EMPLOYEES ON THE NEW ORLEANS LINES THAT
PROBABLY WOULD BE AFFECTED ...  HAS BEEN ESTIMATED  ...  AT 1,022, AND
THE NUMBER REQUIRED TO OPERATE AND MAINTAIN THE UNION PASSENGER
TERMINAL HAS BEEN ESTIMATED AT 680.  AS PROVIDED IN THE TERMINAL
AGREEMENT, SO FAR AS FEASIBLE THE TERMINAL MANAGER WILL RECRUIT THE
NECESSARY PERSONNEL FROM SUPERVISORY AND OTHER EMPLOYEES DISPLACED AT
THE 5 SEPARATE STATIONS TO BE ABANDONED ON COMPLETION OF THE UNION
PASSENGER TERMINAL.  THE ESTIMATES INDICATE A NET DISPLACEMENT OF ABOUT
350 EMPLOYEES, OF WHOM 9 ARE BRIDGE TENDERS AND ABOUT 108 ARE CROSSING
WATCHMEN NOW EMPLOYED ON TRACKS WHICH WILL BE RETIRED OR OVER WHICH
TRAIN AND YARD MOVEMENTS WILL BE REDUCED; BUT THE OPINION IS EXPRESSED
THAT THE NUMBER EVENTUALLY DISPLACED WILL NOT EXCEED 300."  NEW ORLEANS
UNION PASSENGER TERMINAL CASE, 267 I.C.C. 763, 777-778. 

FN3  ALTHOUGH IN THE DISTRICT COURT THE UNITED STATES SUPPORTED THE
COMMISSION, IT HAS HERE FILED A BRIEF SUPPORTING THE APPELLANT. 

FN4  "AS THE RECORD SHOWS DEFINITELY THAT EMPLOYEES WILL BE AFFECTED
ADVERSELY BY THE APPLICANTS' PROPOSALS, IT IS APPROPRIATE IN THIS CASE
THAT WE REQUIRE A FAIR AND EQUITABLE ARRANGEMENT TO PROTECT THE
INTERESTS OF EMPLOYEES SO AFFECTED.  WE THINK THAT THE BENEFIT OF SUCH
AN ARRANGEMENT NECESSARILY MUST EXTEND TO ALL THE RAILROAD EMPLOYEES
AFFECTED BY EXERCISE OF THE AUTHORIZATIONS HEREIN GRANTED.  BUT WE ALSO
THINK THAT THE FAIR AND EQUITABLE ARRANGEMENT CONTEMPLATED BY SECTION
5(2)(F) IS MEASURED BY THE SPECIFICATION THEREIN OF A PROTECTIVE PERIOD
OF 4 YEARS FROM THE EFFECTIVE DATE OF OUR ORDER APPROVING A TRANSACTION
WITHIN THE SCOPE OF SECTION 5(2).  AS WAS DECIDED IN CHICAGO, M., ST.
P. & P.R. CO. TRUSTEES CONSTRUCTION, SUPRA (257 I.C.C. 292), WE HAVE NO
AUTHORITY TO PRESCRIBE ANY OTHER PERIOD."  NEW ORLEANS UNION PASSENGER
TERMINAL CASE, 267 I.C.C. 763, 782. 

FN5  "  ...  IF AFTER SUCH HEARING THE COMMISSION FINDS THAT, SUBJECT
TO SUCH TERMS AND CONDITIONS AND SUCH MODIFICATIONS AS IT SHALL FIND TO
BE JUST AND REASONABLE, THE PROPOSED CONSOLIDATION,  ...  WILL PROMOTE
THE PUBLIC INTEREST, IT MAY ENTER AN ORDER APPROVING AND AUTHORIZING
SUCH CONSOLIDATION,  ...  UPON THE TERMS AND CONDITIONS AND WITH THE
MODIFICATIONS SO FOUND TO BE JUST AND REASONABLE."  48 STAT. 217. 

FN6  THE AGREEMENT IS PUBLISHED IN THE HEARINGS HELD BY THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 2531, 76TH CONG.,
1ST SESS. 231-241(1939). 

FN7  GEORGE M. HARRISON, PRESIDENT OF THE RAILWAY LABOR EXECUTIVES'
ASSOCIATION, RECOMMENDED THE ENACTMENT OF THE SUBSTANCE OF THE
PROPOSALS OF THE WASHINGTON AGREEMENT INTO LAW, SO THAT THE COMMISSION
MIGHT BE ABLE TO MAKE USE OF THOSE PROPOSALS WHERE APPROPRIATE.  THOSE
PROPOSALS INCLUDED COMPENSATORY RELIEF FOR EMPLOYEES, DATING FROM THE
TAKING EFFECT OF A "COORDINATION."  AS APPLIED TO A PARTICULAR
EMPLOYEE, THE AGREEMENT STATED THAT THE TAKING EFFECT OF A COORDINATION
"MEANS THE DATE IN SAID PERIOD WHEN THAT EMPLOYEE IS FIRST ADVERSELY
AFFECTED AS A RESULT OF SAID COORDINATION."  ID. AT P. 232.  IT
PRESCRIBED RATES OF COMPENSATION FOR EMPLOYEES DEPRIVED OF THEIR
EMPLOYMENT, FOR THOSE CONTINUED IN SERVICE BUT DISPLACED FROM THEIR
FORMER POSITIONS, AND FOR THOSE REQUIRED TO MOVE TO NEW PLACES OF
RESIDENCE, ETC.  IT RELATED INDIVIDUAL PROTECTIVE PERIODS TO PRIOR
LENGTHS OF SERVICE.  IN SOME INSTANCES, IT LIMITED RELIEF TO FIVE YEARS
FROM THE EFFECTIVE DATE OF THE COORDINATION. 

FN8  IT WAS ESTIMATED THAT THE COMPENSATORY RELIEF AT ISSUE IN UNITED
STATES V. LOWDEN, SUPRA, WOULD CONSUME, IN FIVE YEARS, $290,000 OUT OF
THE $500,000 OF CONTEMPLATED SAVINGS TO RESULT TO THE RAILROADS. 
SHORTLY BEFORE THAT DECISION, CONGRESS APPROVED, IN THE BILL STILL
PENDING BEFORE IT, THE LANGUAGE WHICH WAS TO BECOME THE FIRST SENTENCE
OF SEC. 5(2)(F).  THIS COURT SAID OF SUCH APPROVAL:  "WE THINK THE ONLY
EFFECT OF THIS ACTION WAS TO GIVE LEGISLATIVE EMPHASIS TO A POLICY AND
A PRACTICE ALREADY RECOGNIZED BY SEC. 5(4)(B) BY MAKING THE PRACTICE
MANDATORY INSTEAD OF DISCRETIONARY, AS IT HAD BEEN UNDER THE EARLIER
ACT."  ID. AT P. 239.  SEE ALSO, INTERSTATE COMMERCE COMMISSION V.
RAILWAY LABOR EXECUTIVES ASSN., 315 U.S. 373, 379. 

FN9  LETTER OF DECEMBER 23, 1938, TRANSMITTING A REPORT TO THE
PRESIDENT FROM A COMMITTEE APPOINTED BY HIM SEPTEMBER 20, 1938, TO
CONSIDER THE TRANSPORTATION PROBLEM AND RECOMMEND LEGISLATION. 
HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 1310,
2016, 1869 AND 2009, 76TH CONG., 1ST SESS. 3-5(1939).  SEE ALSO, H.R.
DOC. NO. 583, 75TH CONG., 3D SESS. 1(1938), AS TO THE EARLIER COMMITTEE
OF THREE APPOINTED FOR THE SAME PURPOSE. 

FN10  HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.R. 2531, 76TH CONG., 1ST SESS. 275(1939).  AND SEE
SUPPORTING TESTIMONY OF GEORGE M. HARRISON AT PP. 216-217.  THE
COMMITTEE RECOMMENDED VESTING THE PROTECTIVE POWER IN A TRANSPORTATION
BOARD, FOR WHICH THE INTERSTATE COMMERCE COMMISSION WAS LATER
SUBSTITUTED. 

FN11  AS THIS PROVISION WAS DERIVED FROM THE RECOMMENDATION OF THE
COMMITTEE OF SIX, THE TESTIMONY OF GEORGE M. HARRISON, A MEMBER OF THAT
COMMITTEE, THROWS LIGHT UPON ITS MEANING.  HE SAID: 

"IN THE REPORT OF THE COMMITTEE OF SIX WE DO NOT UNDERTAKE TO LAY
DOWN THE SPECIFIC, DETAILED PROTECTION THAT SHOULD BE ACCORDED LABOR BY
THE COMMISSION, BUT WE WERE MUCH OF THE OPINION THAT IN PRESCRIBING THE
PROTECTION THE COMMISSION WOULD UNDOUBTEDLY FOLLOW WHAT SEEMS TO BE
GENERALLY THE PRACTICE; AND THAT IS REPRESENTED IN AN AGREEMENT THAT
NOW EXISTS BETWEEN SUBSTANTIALLY ALL OF THE RAILROADS AND ALL OF THE
EMPLOYEES' LABOR UNIONS.  IT PROVIDES A SCHEDULE OF BENEFITS AND
PROTECTIONS."  HEARINGS BEFORE THE SENATE COMMITTEE ON INTERSTATE
COMMERCE ON S. 1310, 2016, 1869 AND 2009, 76TH CONG., 1ST SESS.
34(1938). 

FN12  H.R. REP. NO. 1217, 76TH CONG., 1ST SESS. 12(1939), AND SEE
HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
ON H.R. 2531, 76TH CONG., 1ST SESS. 184, 193-194, 214, 260(1939). 

FN13  84 CONG. REC. PT. 9, 9882(1939). 

THIS PROPOSAL WAS NOT WITHOUT PRECEDENT.  IN THE EMERGENCY RAILROAD
TRANSPORTATION ACT OF 1933, 48 STAT. 211, THERE WERE MANY TEMPORARY
PROVISIONS WHICH ORIGINALLY WERE TO EXPIRE IN 1934 AND FINALLY DID
EXPIRE IN 1936.  AMONG THESE WAS SEC. 7(B).  IT PROVIDED THAT NO
EMPLOYEE WAS TO BE DEPRIVED OF EMPLOYMENT OR BE IN A WORSE POSITION
WITH RESPECT TO HIS JOB BY REASON OF ANY ACTION TAKEN PURSUANT TO THE
AUTHORITY CONFERRED BY THE ACT.  THAT PROVISION, ON A TEMPORARY AND
INDEPENDENT BASIS, THUS COEXISTED WITH THE PERMANENT AMENDMENTS WHICH
WERE THEN MADE TO SEC. 5 OF THE INTERSTATE COMMERCE ACT, INCLUDING SEC.
5(4)(B). 

FN14  WHILE THE BILL WAS IN CONFERENCE, THE LEGISLATIVE COMMITTEE OF
THE INTERSTATE COMMERCE COMMISSION SENT A COMMUNICATION TO CONGRESS
CONDEMNING THE PRINCIPLE OF THE AMENDMENT AND UPHOLDING THE SUFFICIENCY
OF THE FIRST SENTENCE OF SEC. 5(2)(F): 

"AS FOR THE (HARRINGTON) PROVISO, THE OBJECT OF UNIFICATIONS IS TO
SAVE EXPENSE, USUALLY BY THE SAVING OF LABOR.  EMPLOYEES WHO MAY BE
DISPLACED SHOULD, IN THE CASE OF RAILROAD UNIFICATIONS, BE PROTECTED BY
SOME SUCH PLAN AS IS EMBODIED IN THE SO-CALLED 'WASHINGTON AGREEMENT'
OF 1936 BETWEEN THE RAILROAD MANAGEMENTS AND LABOR ORGANIZATIONS.  THE
PROVISO, BY PROHIBITING ANY DISPLACEMENT OF EMPLOYEES, GOES MUCH TOO
FAR, AND IN THE LONG RUN WILL DO MORE HARM THAN GOOD TO THE
EMPLOYEES."  INTERSTATE COMMERCE COMMISSION REPORT ON S. 2009, OMNIBUS
TRANSPORTATION LEGISLATION, P. 67(76TH CONG., 3D SESS., HOUSE COMMITTEE
PRINT), TRANSMITTED JANUARY 29, 1940. 

FN15  "(F)  AS A PREREQUISITE TO ITS APPROVAL OF ANY CONSOLIDATION,
MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR ACQUISITION OF CONTROL,
OR ANY CONTRACT, AGREEMENT, OR COMBINATION MENTIONED IN THIS SECTION,
IN RESPECT TO CARRIERS BY RAILROAD SUBJECT TO THE PROVISIONS OF PART 1,
AND AS A PREREQUISITE TO ITS APPROVAL OF THE SUBSTITUTION AND USE OF
ANOTHER MEANS OF TRANSPORTATION FOR RAIL TRANSPORTATION PROPOSED TO BE
ABANDONED, THE COMMISSION SHALL REQUIRE A FAIR AND EQUITABLE
ARRANGEMENT TO PROTECT THE INTERESTS OF THE RAILROAD EMPLOYEES
AFFECTED.  ... "  86 CONG. REC. PT. 6, 5886(1940). 

FN16  SEE H.R. REP. NO. 2832, 76TH CONG., 3D SESS. 68-69(1940), AND
REMARKS BY REPRESENTATIVE LEA, CHAIRMAN OF HOUSE CONFEREES, 86 CONG.
REC. PT. 6, 10178(1940), AND OF REPRESENTATIVE WOLVERTON AT P. 10189. 

THE COMMISSION'S POWERS AS TO ABANDONMENTS ARE THUS LEFT TO SEC.
1(18)-(20), TO WHICH THE HARRINGTON AMENDMENT HAS NO POSSIBLE
APPLICATION.  THEY ARE AS FOLLOWS: 

"(18)  ...  NO CARRIER BY RAILROAD SUBJECT TO THIS ACT SHALL ABANDON
ALL OR ANY PORTION OF A LINE OF RAILROAD, OR THE OPERATION THEREOF,
UNLESS AND UNTIL THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE
COMMISSION A CERTIFICATE THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE
AND NECESSITY PERMIT OF SUCH ABANDONMENT. 

     .      .         .         .         . 

"(20)  THE COMMISSION SHALL HAVE POWER TO ISSUE SUCH CERTIFICATE  ...
AND MAY ATTACH TO THE ISSUANCE OF THE CERTIFICATE SUCH TERMS AND
CONDITIONS AS IN ITS JUDGMENT THE PUBLIC CONVENIENCE AND NECESSITY MAY
REQUIRE.  ...  "  41 STAT. 477-478, 49 U.S.C. SEC. 1(18) AND (20). 

UNDER SEC. 1(18) AND (20), THE COMMISSION HAS AUTHORITY, IN ITS SOUND
DISCRETION, TO PRESCRIBE THE PERIOD AND THE CONDITIONS OF THE
PROTECTION NEEDED BY EMPLOYEES ADVERSELY AFFECTED BY ABANDONMENTS.  SEE
INTERSTATE COMMERCE COMMISSION V. RAILWAY LABOR EXECUTIVES ASSN., 315
U.S. 373.  IN THAT CASE, THIS COURT REVERSED THE NARROW INTERPRETATION
WHICH HAD BEEN GIVEN BY THE COMMISSION TO SEC. 1(20) IN CHICAGO G.W.R.
CO. TRACKAGE, 207 I.C.C. 315, 322.  THE COMMISSION HAD HELD THAT IT WAS
WITHOUT AUTHORITY TO PRESCRIBE CONDITIONS FOR THE PROTECTION OF THE
INTERESTS OF THE DISPLACED EMPLOYEES.  BOTH THE DISTRICT COURT OF THE
DISTRICT OF COLUMBIA AND THIS COURT RECOGNIZED THAT THE AUTHORITY
GRANTED BY SEC. 1(18)-(20) MIGHT BE NARROWER THAN THAT APPLICABLE TO
CONSOLIDATIONS UNDER SEC. 5(4)(B)(SEE UNITED STATES V. LOWDEN, 308 U.S.
225) BUT HELD, NEVERTHELESS, THAT IT GAVE THE COMMISSION AUTHORITY TO
PROTECT THE EMPLOYEES AFFECTED.  UNDER THE RESTRICTIVE INTERPRETATION
WHICH THE COMMISSION SEEKS TO APPLY TO ITS POWER IN THE INSTANT CASE,
IT WOULD BE PROHIBITED FROM APPLYING ITS FULL DISCRETION TO EMPLOYEES
DISPLACED BY CONSOLIDATIONS, AT THE SAME TIME THAT IT IS AUTHORIZED TO
APPLY ITS FULL DISCRETION TO THOSE DISPLACED BY ABANDONMENTS.  SEE
INTERSTATE COMMERCE COMMISSION V. RAILWAY LABOR EXECUTIVES ASSN., 315
U.S. 373.  THIS DISTINCTION WOULD BE PECULIARLY DISCRIMINATORY IN THE
INSTANT CASE WHERE THE CONSOLIDATION INCLUDES MANY ABANDONMENTS. 

FN17  CHICAGO, B. & Q.R. CO. ABANDONMENT, 257 I.C.C. 700; CHICAGO,
M., ST. P. & P.R. CO. TRUSTEES CONSTRUCTION, 257 I.C.C. 292; OKLAHOMA
R. CO. TRUSTEES ABANDONMENT, 257 I.C.C. 177, 196-202; TEXAS & P.R. CO.
OPERATION, 247 I.C.C. 285, 295, 296. 

MR. JUSTICE JACKSON DISSENTS UPON THE GROUND THAT RESORT TO
LEGISLATIVE HISTORY TO VARY THE TERMS OF THE STATUTE IS NOT JUSTIFIED
IN THIS CASE. 

MR. CHIEF JUSTICE VINSON AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED JOINS, DISSENTING. 

THE SOLE QUESTION BEFORE US IS THE PROPER CONSTRUCTION TO BE GIVEN TO
THE AMENDMENT MADE TO SEC. 5(2)(F) OF THE INTERSTATE COMMERCE ACT BY
THE ACT OF SEPTEMBER 18, 1940, 54 STAT. 898, 906-07.  THE DISTRICT
COURT AGREED WITH THE CONSTRUCTION GIVEN TO THE PROVISION BY THE
INTERSTATE COMMERCE COMMISSION.  IN THE COURT BELOW, BUT NOT HERE, THE
DEPARTMENT OF JUSTICE JOINED THE INTERSTATE COMMERCE COMMISSION IN
URGING THIS CONSTRUCTION UPON THAT COURT.  I DO NOT THINK THE ARGUMENTS
WHICH THE GOVERNMENT URGED BELOW HAVE BEEN ADEQUATELY ANSWERED, AND I
THEREFORE YIELD TO THEM.  I CANNOT DO BETTER THAN STATE THEM IN THE
GOVERNMENT'S OWN LANGUAGE:    "THE SECTION CONTAINS THE CLEAR AND
PRECISE PROVISION THAT THE FOUR-YEAR PERIOD SHALL COMMENCE FROM THE
EFFECTIVE DATE OF THE ORDER OF APPROVAL.  HAD CONGRESS INTENDED THAT
THE PERIOD SHALL RUN FROM THE DATE WHEN THE CONSOLIDATION GOES INTO
EFFECT OR, AS ARGUED BY PLAINTIFF, FROM THE DATE THE EMPLOYEES ARE
ADVERSELY AFFECTED, SUCH WORDS EASILY COULD AND WOULD HAVE BEEN USED BY
CONGRESS.  NOR DOES THE SECTION GIVE TO THE COMMISSION DISCRETION IN
APPLYING A PERIOD OTHER THAN FOUR YEARS FROM THE EFFECTIVE DATE OF THE
ORDER OF APPROVAL.  THE TERMINOLOGY IN THE STATUTE IS THAT THE
COMMISSION SHALL INCLUDE THE FOUR-YEAR LIMITATION THEREIN PROVIDED.  TO
PROVIDE A DIFFERENT PERIOD IN THE COMMISSION'S ORDER WOULD BE CONTRARY
TO THE SPECIFIC REQUIREMENT IMPOSED UPON THE COMMISSION BY THE
STATUTE. 

     .   .         .         .         . 

"CONGRESS DELIBERATELY FIXED THE PERIOD OF PROTECTION TO START FROM
THE EFFECTIVE DATE OF THE ORDER AND NOT THE DATE AN EMPLOYEE IS
ADVERSELY AFFECTED. 

     .         .         .         .         . 

"IN THE LIGHT OF THE CLEAR UNAMBIGUOUS AND SPECIFIC LANGUAGE OF
COMMISSION, SINCE ITS ENACTMENT AND OVER A LONG PERIOD OF YEARS, AND
THE LEGISLATIVE HISTORY OF THE STATUTE, THE ORDER OF THE COMMISSION
HEREIN SHOULD NOT BE DISTURBED." 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 
..END :





















STANDARD-VACUUM OIL CO. V. U.S., 339 U.S. 157 


NO. 18.  ARGUED OCTOBER 13, 1949.  - DECIDED MARCH 27, 1950.  - 112 CT.
CL. 137, 80 F.SUPP.  657, JUDGMENT VACATED AND CAUSE REMANDED. 


PETITIONER SUED IN THE COURT OF CLAIMS TO RECOVER COMPENSATION FOR
PROPERTY IN THE PHILIPPINE ISLANDS ALLEGEDLY REQUISITIONED BY THE
UNITED STATES FOR MILITARY PURPOSES DURING THE JAPANESE INVASION OF THE
ISLANDS MORE THAN SIX YEARS PREVIOUSLY.  THE GOVERNMENT MOVED TO
DISMISS THE CLAIMS ON THE GROUND THAT THEY WERE BARRED BY THE SIX-YEAR
LIMITATION PRESCRIBED BY SEC. 156 OF THE JUDICIAL CODE, NOW 28 U.S.C.
SEC. 2501.  PETITIONER CONTENDED THAT, DURING THE JAPANESE OCCUPATION
OF THE ISLANDS, IT WAS DEPRIVED OF ACCESS TO INFORMATION BEARING ON THE
EXISTENCE OF ITS CLAIMS; BUT ITS PLEADINGS CONTAINED NO SUCH
ALLEGATIONS.  THE COURT OF CLAIMS CONSIDERED THIS CONTENTION BUT
DISMISSED THE CLAIMS.  HELD: 

1.  SINCE THE QUESTION WHETHER DEPRIVATION OF ACCESS TO INFORMATION
BEARING ON THE EXISTENCE OF PETITIONER'S CLAIMS DURING THE JAPANESE
OCCUPATION OF THE PHILIPPINE ISLANDS COULD OR WOULD AFFECT THE
OPERATION OF THE SIX-YEAR STATUTE OF LIMITATIONS IS NOT PROPERLY
PRESENTED ON THE RECORD, THIS COURT WILL NOT CONSIDER IT.  PP. 158
160. 

2.  SINCE THE COURT BELOW CONSIDERED FACTS NOT STATED IN THE
PLEADINGS AND ITS OPINION AND JUDGMENT TAKE COGNIZANCE OF SUCH FACTS,
ITS JUDGMENT IS VACATED AND THE CAUSE IS REMANDED WITH DISCRETION TO
PERMIT FURTHER PLEADINGS.  PP. 160-161. 

3.  IF PERMISSION TO PLEAD FURTHER IS DENIED, OR IF IT IS GRANTED AND
PETITIONER FAILS TO PLEAD FURTHER, THE CAUSE SHALL BE DISMISSED.  P.
161. 

STANDARD-VACUUM OIL CO. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS DISMISSED PETITIONER'S CLAIM FOR COMPENSATION FOR
PROPERTY ALLEGEDLY REQUISITIONED BY THE UNITED STATES.  112 CT. CL.
137, 80 F.SUPP.  657.  THIS COURT GRANTED CERTIORARI.  336 U.S. 935. 
JUDGMENT VACATED AND CAUSE REMANDED, P. 161. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 5, 1947, PETITIONER FILED SUIT IN THE COURT OF CLAIMS TO
RECOVER JUST COMPENSATION FOR CERTAIN OF ITS PROPERTIES IN THE
PHILIPPINE ISLANDS WHICH THE UNITED STATES HAD ALLEGEDLY REQUISITIONED
FOR MILITARY PURPOSES.  ON MARCH 24, 1948, PETITIONER FILED AN AMENDED
PETITION, INCLUDING FOR THE FIRST TIME THE CLAIMS HERE INVOLVED, THE
SEVENTH AND THE FIFTEENTH.  A SECOND AMENDED PETITION WAS FILED JUNE 1,
1948.  IN THE SEVENTH CLAIM OF THE AMENDED PETITION, PETITIONER ALLEGED
THAT THE UNITED STATES ON OR ABOUT DECEMBER 18, 1941, REQUISITIONED AND
TOOK CERTAIN PETROLEUM PRODUCTS AND OTHER PERSONAL AND REAL PROPERTY OF
PETITIONER LOCATED IN THE PHILIPPINE ISLANDS.  THE FIFTEENTH CLAIM OF
THE AMENDED PETITION CONTAINED AN ALLEGATION, INTER ALIA, THAT DURING
THE PERIOD FROM DECEMBER 1941 TO JANUARY 1942, RESPONDENT TOOK AND
DISBURSED CERTAIN OTHER PETROLEUM PRODUCTS OF PETITIONER LOCATED AT
ANOTHER PLACE IN THE PHILIPPINE ISLANDS.  FN1  IN THE INTERIM BETWEEN
THE FILING OF THE FIRST AND THE SECOND AMENDED PETITIONS, ON APRIL 12,
1948, THE UNITED STATES HAD FILED A MOTION TO DISMISS THE SEVENTH AND
FIFTEENTH CLAIMS ON THE GROUND THAT IT APPEARED ON THE FACE OF THE
AMENDED PETITION THAT THE CLAIMS SUED UPON EACH ACCRUED MORE THAN SIX
YEARS PRIOR TO THE FILING OF THE AMENDED PETITION, THAT THE CLAIMS WERE
THEREFORE BARRED BY SEC. 156 OF THE JUDICIAL CODE,  FN2  AND THE COURT
OF CLAIMS WAS WITHOUT JURISDICTION TO HEAR SAID CLAIMS.  THE COURT
ALLOWED THIS MOTION TO STAND DIRECTED AGAINST THE SECOND AMENDED
PETITION.  AFTER HEARING ARGUMENT, THE COURT SUSTAINED THE MOTION TO
DISMISS, AND DID DISMISS THE SEVENTH AND FIFTEENTH CLAIMS.  112 CT. CL.
137, 80 F.SUPP.  657.  WE GRANTED CERTIORARI (336 U.S. 935) ON THE
ASSUMPTION THAT THE RECORD PRESENTED THE QUESTION WHETHER DEPRIVATION
OF ACCESS TO INFORMATION BEARING ON THE EXISTENCE OF PETITIONER'S
CLAIMS DURING THE JAPANESE OCCUPATION OF THE PHILIPPINE ISLANDS COULD
OR DID AFFECT THE OPERATION OF THE SIX-YEAR STATUTE.  BUT SINCE THE
RECORD DOES NOT PROPERLY PRESENT THAT QUESTION, WE CANNOT ANSWER IT. 

THE CASE REACHES US UPON PLEADINGS THAT ALLEGE ONLY THE FACT OF
TAKING IN 1941 AND 1942, MORE THAN SIX YEARS BEFORE THE SEVENTH AND
FIFTEENTH CLAIMS WERE FILED BY PETITIONER.  WE DO NOT INTIMATE THAT ANY
FACTS COULD HAVE THE EFFECT OF RELIEVING PETITIONER FROM THE LIMITATION
OF THE STATUTE, NOR WHAT FACTS SHOULD BE ALLEGED THAT COULD HAVE THAT
EFFECT. 

IT MIGHT BE ASSUMED IN FAVOR OF PETITIONER'S PLEADINGS WHAT IS
JUDICIALLY KNOWN, THAT THE JAPANESE WERE, FOR ALL PRACTICAL PURPOSES,
IN COMPLETE CONTROL OF THE PHILIPPINE ISLANDS BY MAY 1942 AND CONTINUED
IN CONTROL UNTIL SOMETIME SUBSEQUENT TO OCTOBER 1944, WHEN THE UNITED
STATES ARMY RETURNED.  BUT IT CANNOT BE ASSUMED THAT PETITIONER WAS
DEPRIVED OF INFORMATION ABOUT ITS PROPERTY BEFORE AND DURING THAT
PERIOD.  THE PLEADINGS DO NOT SO INFORM, AND CERTAINLY A COURT COULD
NOT KNOW JUDICIALLY THE FACTS OF PETITIONER'S INFORMATION OR LACK OF
INFORMATION.  THEN THERE IS THE PERIOD FROM THE UNITED STATES
REOCCUPATION IN 1945 TO MARCH 24, 1948.  WITH RESPECT TO THIS PERIOD OF
UNITED STATES CONTROL OF THE ISLANDS, NOTHING IS ALLEGED BY PETITIONER
CONCERNING ITS DEPRIVATION OF OR ACCESS TO INFORMATION ABOUT THE TAKING
OF ITS PROPERTY AT THE TIMES SET FORTH IN THE CLAIMS. 

TRUE, THE DISCUSSION OF PETITIONER'S CLAIMS SEEMS TO HAVE BEEN AT
LARGE BEFORE THE COURT OF CLAIMS AS TO THE INFORMATION OR LACK OF
INFORMATION PETITIONER HAD CONCERNING ITS CLAIMS AND AS TO THE EFFECT
SUCH INFORMATION OR LACK THEREOF MIGHT HAVE HAD UPON PETITIONER'S RIGHT
TO FILE THE CLAIMS MORE THAN SIX YEARS AFTER THEY ACCRUED.  THE
MAJORITY OPINION OF THE COURT OF CLAIMS RECITES: 

"PLAINTIFF ALLEGES THAT BECAUSE OF THE LOSS AND DESTRUCTION OF ITS
RECORDS PROPER CLAIMS COULD NOT BE FILED UNTIL THE JAPANESE OCCUPATION
HAD ENDED AND OPPORTUNITY HAD TO RECONSTRUCT STATISTICALLY THE
PROPERTIES, STOCKS, EQUIPMENT, ETC., OWNED BY IT AT THE TIME OF
REQUISITIONING OR DESTRUCTION."  112 CT. CL. AT 139, 80 F.SUPP.  AT
658. 

THERE ARE NO SUCH ALLEGATIONS IN THE AMENDED PETITION.  WHAT
ALLEGATIONS THERE ARE IN THE PETITION BRING THE CASE SQUARELY WITHIN
THE STATUTE, WHICH DENIES THE COURT OF CLAIMS POWER TO ENTERTAIN AN
ACTION BROUGHT MORE THAN SIX YEARS AFTER THE ACTION ACCRUES. 

THUS THE CASE WAS DECIDED NOT ONLY UPON WHAT WAS ALLEGED IN THE
PLEADINGS BUT UPON OTHER ALLEGATIONS AS WELL, AS TO WHICH NO CLEAR
INKLING APPEARS IN THE RECORD.  BECAUSE THE COURT OF CLAIMS CONSIDERED
THESE ADDITIONAL ALLEGATIONS, IT IS URGED THAT WE SHOULD ALSO CONSIDER
THEM.  BUT WE CANNOT CONSIDER SUCH ALLEGATIONS IN DETERMINING THE
SUFFICIENCY OF THE CAUSE STATED.  AFTER ALL, PLEADINGS AND THE MAKING
OF A PROPER RECORD HAVE NOT BEEN DISPENSED WITH.  THEY STILL HAVE A
FUNCTION TO PERFORM.  THIS CASE POINTS UP THAT FUNCTION.  WE WILL NOT
REVIEW QUESTIONS NOT CLEARLY RAISED ON THE RECORD. 

SINCE IT IS APPARENT THAT FACTS WERE CONSIDERED BY BOTH THE COURT OF
CLAIMS AND COUNSEL THAT WERE NOT IN THE PLEADINGS, AND THE COURT'S
OPINION AND JUDGMENT TAKE COGNIZANCE OF SUCH FACTS, THE JUDGMENT IS
VACATED AND THE CAUSE IS REMANDED.  THE COURT OF CLAIMS MAY PERMIT
FURTHER PLEADINGS IF IN THE COURT'S DISCRETION SUCH FURTHER PLEADINGS
SEEM PROPER AND JUST.  IF PERMISSION TO PLEAD FURTHER IS DENIED, OR IF
PETITIONER FAILS TO PLEAD FURTHER SHOULD PERMISSION BE GRANTED, THE
CAUSE SHALL BE DISMISSED.  IT IS SO ORDERED. 

FN1 THIS PORTION OF THE FIFTEENTH CLAIM IS HEREAFTER REFERRED TO AS
THE FIFTEENTH CLAIM. 

FN2  "EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE COURT
OF CLAIMS, SHALL BE FOREVER BARRED UNLESS THE PETITION SETTING FORTH A
STATEMENT THEREOF IS FILED IN THE COURT  ...  WITHIN SIX YEARS AFTER
THE CLAIM FIRST ACCRUES  ...  "  36 STAT. 1139, 28 U.S.C. SEC. 262, NOW
62 STAT. 976, 28 U.S.C. SEC. 2501. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















DENNIS V. UNITED STATES, 339 U.S. 162 


NO. 14.  ARGUED NOVEMBER 7, 1949.  - DECIDED MARCH 27, 1950.  - 84 U.S.
APP. D.C. 31, 171 F.2D 986, AFFIRMED. 


PETITIONER, WHO IS GENERAL SECRETARY OF THE COMMUNIST PARTY OF THE
UNITED STATES, WAS CONVICTED IN THE DISTRICT OF COLUMBIA OF VIOLATING
R.S. SEC. 102, 2 U.S.C. SEC. 192, BY WILLFULLY FAILING TO APPEAR BEFORE
THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES
IN COMPLIANCE WITH A SUBPOENA DULY SERVED UPON HIM.  ON VOIR DIRE
EXAMINATION, GOVERNMENT EMPLOYEES ON THE JURY PANEL WERE INTERROGATED
INDIVIDUALLY BY PETITIONER'S COUNSEL AS TO WHETHER THE FACT THAT
PETITIONER WAS A COMMUNIST, THE ATTITUDE OF THE COMMITTEE ON UN
AMERICAN ACTIVITIES TOWARD COMMUNISTS, OR THE RECENTLY ISSUED EXECUTIVE
ORDER 9835 PROVIDING STANDARDS FOR THE DISCHARGE OF GOVERNMENT
EMPLOYEES UPON REASONABLE GROUNDS FOR BELIEF THAT THEY ARE DISLOYAL TO
THE GOVERNMENT, WOULD PREVENT THEM FROM RENDERING A FAIR AND IMPARTIAL
VERDICT.  SEVEN GOVERNMENT EMPLOYEES WHO GAVE NEGATIVE ANSWERS TO THESE
QUESTIONS AND TESTIFIED THAT THEY COULD RENDER A FAIR AND IMPARTIAL
VERDICT WERE PERMITTED TO SERVE ON THE JURY.  THERE WAS NO PROOF OF
ACTUAL BIAS, AND PETITIONER'S CHALLENGE OF THESE GOVERNMENT EMPLOYEES
FOR CAUSE WAS DENIED.  HELD:  IN THE CIRCUMSTANCES OF THIS CASE,
PETITIONER WAS NOT DENIED THE TRIAL "BY AN IMPARTIAL JURY" GUARANTEED
BY THE SIXTH AMENDMENT.  PP. 164-172. 

(A)  THE ENACTMENT OF D.C. CODE (1940) SEC. 11-1420, WHICH REMOVED
(WITH SPECIFIED EXCEPTIONS) THE PREVIOUSLY EXISTING DISQUALIFICATION OF
GOVERNMENT EMPLOYEES FOR JURY SERVICE IN THE DISTRICT OF COLUMBIA IN
CRIMINAL AND OTHER CASES TO WHICH THE GOVERNMENT IS A PARTY, WAS WITHIN
THE POWER OF CONGRESS AND, THEREFORE, EMPLOYEES OF THE FEDERAL
GOVERNMENT ARE NOT CHALLENGEABLE SOLELY BY REASON OF THEIR EMPLOYMENT. 
UNITED STATES V. WOOD, 299 U.S. 123; FRAZIER V. UNITED STATES, 335 U.S.
497.  PP. 165-167, 172. 

(B)  WHILE IMPANELING A JURY, THE TRIAL COURT HAS A SERIOUS DUTY TO
DETERMINE THE QUESTION OF ACTUAL BIAS AND A BROAD DISCRETION IN ITS
RULINGS ON THE CHALLENGES THEREFOR; AND IT MUST BE ZEALOUS TO PROTECT
THE RIGHTS OF AN ACCUSED, IRRESPECTIVE OF HIS POLITICAL OR RELIGIOUS
BELIEFS.  P. 168. 

(C)  ONE OF AN UNPOPULAR MINORITY GROUP MUST BE ACCORDED THAT
SOLICITUDE WHICH PROPERLY ACCOMPANIES AN ACCUSED PERSON; BUT HE IS NOT
ENTITLED TO UNUSUAL PROTECTION OR EXCEPTION.  P. 168. 

(D)  IN ORDER TO SECURE THE CONSTITUTIONAL GUARANTEE OF TRIAL BY AN
IMPARTIAL JURY IN THE CIRCUMSTANCES OF THIS CASE, IT IS NOT NECESSARY
THAT ALL GOVERNMENT EMPLOYEES BE HELD TO BE BIASED AS A MATTER OF LAW. 
PP. 168, 172. 

(E)  THE WAY IS OPEN IN EVERY CASE TO RAISE A CONTENTION OF BIAS FROM
THE REALM OF SPECULATION TO THE REALM OF FACT; AND PRESERVATION OF THE
OPPORTUNITY TO PROVE ACTUAL BIAS IS A GUARANTEE OF A DEFENDANT'S RIGHT
TO AN IMPARTIAL JURY.  PP. 168, 171-172. 

(F)  JUDICIAL NOTICE MAY BE TAKEN OF EXECUTIVE ORDER 9835; BUT THAT
DOES NOT JUSTIFY AN ASSUMPTION BY THIS COURT THAT GOVERNMENT EMPLOYEES
COULD NOT SERVE FAIRLY AND IMPARTIALLY AS JURORS IN THE CIRCUMSTANCES
OF THIS CASE - ESPECIALLY WHEN THEY STATED UNDER OATH THAT THEY COULD
DO SO.  PP. 169-171. 

(G)  NOR, IN THE CIRCUMSTANCE OF THIS CASE, CAN AN EXCEPTION IN FAVOR
OF A COMMUNIST BE CARVED OUT OF THE RULE LAID DOWN IN THE STATUTE AND
CONSTRUED IN WOOD V. UNITED STATES AND FRAZIER V. UNITED STATES THAT
THERE IS NO IMPLIED BIAS BY REASON OF GOVERNMENT EMPLOYMENT.  P. 171. 

(H)  NOR CAN THIS COURT, ANY MORE THAN THE TRIAL COURT, TAKE JUDICIAL
NOTICE OF A "MIASMA OF FEAR" TO WHICH GOVERNMENT EMPLOYEES ARE CLAIMED
TO BE PECULIARLY VULNERABLE AND FROM WHICH OTHER CITIZENS ARE BY
IMPLICATION IMMUNE.  P. 172. 

DENNIS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PETITIONER WAS CONVICTED IN THE DISTRICT OF COLUMBIA OF VIOLATING
R.S. SEC. 102, 2 U.S.C. SEC. 192.  THE COURT OF APPEALS AFFIRMED.  84
U.S. APP. D.C. 31, 171 F.2D 986.  THIS COURT GRANTED CERTIORARI.  337
U.S. 954.  AFFIRMED, P. 172. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION WE HAVE FOR DETERMINATION HERE IS WHETHER A CHALLENGE
FOR CAUSE TO JURORS ON VOIR DIRE BECAUSE OF EMPLOYMENT BY THE FEDERAL
GOVERNMENT SHOULD HAVE BEEN SUSTAINED UNDER THE CIRCUMSTANCES OF THIS
CASE. 

PETITIONER WAS CONVICTED OF VIOLATING R.S. SEC. 102, 2 U.S.C. SEC.
192, FOR WILLFULLY FAILING TO APPEAR BEFORE THE COMMITTEE ON UN
AMERICAN ACTIVITIES OF THE HOUSE OF REPRESENTATIVES IN COMPLIANCE WITH
A SUBPOENA DULY SERVED UPON HIM.  THE COURT OF APPEALS AFFIRMED, 84
U.S. APP. D.C. 31, 171 F.2D 986.  WE GRANTED CERTIORARI LIMITED TO THE
QUESTION WHETHER GOVERNMENT EMPLOYEES COULD PROPERLY SERVE ON THE JURY
WHICH TRIED PETITIONER.  337 U.S. 954. 

PETITIONER VOLUNTARILY APPEARED BEFORE THE HOUSE COMMITTEE ON UN
AMERICAN ACTIVITIES WHICH HAD UNDER CONSIDERATION TWO BILLS TO OUTLAW
THE COMMUNIST PARTY.  PETITIONER WAS AND IS GENERAL SECRETARY OF THE
COMMUNIST PARTY OF THE UNITED STATES.  ON HIS VOLUNTARY APPEARANCE
BEFORE THE COMMITTEE, PETITIONER REFUSED TO ANSWER QUESTIONS AS TO HIS
NAME AND THE DATE AND PLACE OF HIS BIRTH.  THE CHAIRMAN OF THE
COMMITTEE DIRECTED THAT A SUBPOENA BE SERVED FORTHWITH UPON PETITIONER,
REQUIRING HIM TO APPEAR BEFORE THE COMMITTEE ON APRIL 9, 1947.  ON THE
APPOINTED DATE PETITIONER SENT A REPRESENTATIVE BUT DID NOT APPEAR IN
ACCORDANCE WITH THE SUBPOENA.  THE COMMITTEE REPORTED HIS REFUSAL TO
APPEAR TO THE HOUSE OF REPRESENTATIVES, AND THE HOUSE ADOPTED A
RESOLUTION CERTIFYING THE REPORT OF THE COMMITTEE TO THE UNITED STATES
ATTORNEY FOR THE DISTRICT OF COLUMBIA.  PETITIONER WAS SUBSEQUENTLY
INDICTED. 

WHEN THE CASE WAS CALLED FOR TRIAL, PETITIONER MADE A MOTION FOR
TRANSFER UPON THE GROUND THAT HE COULD NOT OBTAIN A FAIR AND IMPARTIAL
TRIAL IN THE DISTRICT OF COLUMBIA.  IN HIS AFFIDAVIT SUPPORTING THE
MOTION, HE POSITED THIS CONTENTION MAINLY ON THE GROUND THAT GOVERNMENT
EMPLOYEES, WHO COMPRISE A LARGE PART OF THE DISTRICT'S POPULATION, ARE
SUBJECT TO EXECUTIVE ORDER 9835, 12 FED. REG. 1935, PROVIDING STANDARDS
FOR THEIR DISCHARGE UPON REASONABLE GROUNDS FOR BELIEF THAT THEY ARE
DISLOYAL TO THE GOVERNMENT OF THE UNITED STATES.  HE ARGUED THAT
GOVERNMENT EMPLOYEES WOULD BE AFRAID TO RISK THE CHARGE OF DISLOYALTY
OR POSSIBLE TERMINATION OF EMPLOYMENT WHICH WOULD ALLEGEDLY FLOW FROM A
VOTE FOR ACQUITTAL.  THE MOTION FOR A TRANSFER WAS DENIED. 

BOTH SIDES CONDUCTED FURTHER VOIR DIRE EXAMINATION AT THE CONCLUSION
OF THE COURT'S QUESTIONING OF THE PANEL.  ATTORNEY FOR PETITIONER
QUESTIONED INDIVIDUALLY EACH MEMBER OF THE PANEL WHO INDICATED THAT HE
WAS EMPLOYED BY THE GOVERNMENT.  HE THEN CHALLENGED FOR CAUSE ALL
GOVERNMENT EMPLOYEES.  THE COURT DENIED THE CHALLENGE.  PETITIONER
EXERCISED TWO OF HIS THREE PEREMPTORY CHALLENGES AGAINST GOVERNMENT
EMPLOYEES.  HE EXHAUSTED ALL HIS PEREMPTORY CHALLENGES.  SEVEN OF THE
TWELVE FINALLY SELECTED WERE GOVERNMENT EMPLOYEES.  EACH OF THE SEVEN
EXPRESSED THE BELIEF THAT HE COULD RENDER A FAIR AND IMPARTIAL
VERDICT. 

IS PETITIONER ENTITLED TO A NEW TRIAL BECAUSE HIS CHALLENGE TO THE
GOVERNMENT EMPLOYEES FOR CAUSE WAS NOT SUSTAINED?  THE QUESTION OF THE
PRESENCE OF GOVERNMENT EMPLOYEES ON DISTRICT OF COLUMBIA JURIES IS NOT
A NEW CONTROVERSY.  IT HAS BEEN BEFORE THIS COURT ON THREE PREVIOUS
OCCASIONS.  CRAWFORD V. UNITED STATES, 212 U.S. 183; UNITED STATES V.
WOOD, 299 U.S. 123; FRAZIER V. UNITED STATES, 335 U.S. 497.  IN THE
CRAWFORD CASE THE DEFENDANTS WERE CHARGED WITH A CONSPIRACY TO DEFRAUD
THE UNITED STATES.  THE COURT HELD THAT THE STATUTE PRESCRIBING THE
ELIGIBILITY OF JURORS IN THE DISTRICT OF COLUMBIA DID NOT CONTROL THE
SUBJECT.  THE COURT TURNED TO THE COMMON LAW IN FORCE IN MARYLAND WHEN
THE DISTRICT WAS FORMED, AND FOUND THAT A SERVANT WAS SUBJECT TO
CHALLENGE FOR CAUSE AT COMMON LAW WHERE THE MASTER WAS PARTY TO THE
CASE ON TRIAL.  IN SUCH A CASE, BIAS WOULD BE IMPLIED AS A MATTER OF
LAW.  THE COURT CONCLUDED THAT IT WAS ERROR TO DENY A CHALLENGE FOR
CAUSE TO A GOVERNMENT EMPLOYEE IN A CASE TO WHICH THE GOVERNMENT WAS A
PARTY. 

IN 1935 CONGRESS, PROMPTED BY THE PAUCITY OF QUALIFIED JURORS WHICH
RESULTED FROM THE CRAWFORD DECISION, PASSED AN ACT REDEFINING
ELIGIBILITY FOR JURY SERVICE IN THE DISTRICT OF COLUMBIA.  AFTER
EXEMPTING CERTAIN CLASSES, THE ACT PROVIDED:  "ALL OTHER PERSONS,
OTHERWISE QUALIFIED ACCORDING TO LAW WHETHER EMPLOYED IN THE SERVICE OF
THE GOVERNMENT OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA  ...
SHALL BE QUALIFIED TO SERVE AS JURORS IN THE DISTRICT OF COLUMBIA AND
SHALL NOT BE EXEMPT FROM SUCH SERVICE  ...  "  49 STAT. 682, D.C. CODE,
SEC. 11-1420(1940). 

THE CONSTITUTIONALITY OF THIS ACT WAS SUSTAINED IN UNITED STATES V.
WOOD, 299 U.S. 123, WHERE THE DEFENDANT WAS CHARGED WITH PETTY LARCENY
FROM A PRIVATE CORPORATION.  THE DEFENDANT CONTENDED THAT THE PRESENCE
OF GOVERNMENT EMPLOYEES ON THE JURY DENIED THE RIGHT OF TRIAL BY AN
IMPARTIAL JURY WITHIN THE MEANING OF THE SIXTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES.  HE POINTED OUT THAT UNDER THE
COMMON LAW AS EXPOUNDED BY BLACKSTONE, A KING'S SERVANT AND THEREFORE A
GOVERNMENT EMPLOYEE COULD NOT SERVE ON A JURY, AND HE ARGUED THAT THIS
VIEW WAS CARRIED INTO THE SIXTH AMENDMENT.  CHIEF JUSTICE HUGHES,
SPEAKING FOR THE COURT, METICULOUSLY EXAMINED THE PROBLEM.  HE FOUND
THAT BLACKSTONE'S STATEMENT OF DISQUALIFICATION HAD REFERENCE ONLY TO
SERVANTS OF PRIVATE PARTIES, AND THAT THERE WAS NO ESTABLISHED PRACTICE
WITH RESPECT TO THE KING'S SERVANTS AT COMMON LAW.  THE COURT WAS OF
THE VIEW THAT EVEN IF SUCH A COMMON LAW DISQUALIFICATION EXISTED,
CONGRESS HAD POWER TO REMOVE IT.  UNLIKE THE STATUTE IN THE CRAWFORD
CASE, THE 1935 ACT LEFT NO DOUBT THAT CONGRESS INTENDED TO QUALIFY
GOVERNMENT EMPLOYEES AS JURORS.  THE CONSTITUTIONALITY OF SUCH A
DECLARATION WAS PRESENTED FOR THE FIRST TIME.  THE OPINION CAREFULLY
EMPHASIZED THAT THE ACT LEFT ACCUSED PERSONS FREE TO SHOW THE EXISTENCE
OF ACTUAL BIAS.  ONLY THE QUESTION OF IMPLIED BIAS WAS PRESENTED.  THE
COURT CONCLUDED THAT THE GUARANTEE OF AN IMPARTIAL JURY WAS NOT
IMPAIRED, STATING: 

"IT IS MANIFEST THAT THE ACT WAS PASSED TO MEET A PUBLIC NEED AND
THAT NO INTERFERENCE WITH THE ACTUAL IMPARTIALITY OF THE JURY WAS
CONTEMPLATED.  THE ENACTMENT ITSELF IS TANTAMOUNT TO A LEGISLATIVE
DECLARATION THAT THE PRIOR DISQUALIFICATION WAS ARTIFICIAL AND NOT
NECESSARY TO SECURE IMPARTIALITY.  ...  TO IMPUTE BIAS AS MATTER OF LAW
TO THE JURORS IN QUESTION HERE WOULD BE NO MORE SENSIBLE THAN TO IMPUTE
BIAS TO ALL STOREOWNERS AND HOUSEHOLDERS IN CASES OF LARCENY OR
BURGLARY."  UNITED STATES V. WOOD, SUPRA, 148-149, 150. 

ONLY LAST TERM IN FRAZIER V. UNITED STATES, 335 U.S. 497, THE PROBLEM
OF JURY SERVICE BY GOVERNMENT EMPLOYEES WAS REEXAMINED.  THERE THE
DEFENDANT WAS TRIED AND CONVICTED OF VIOLATING THE NARCOTICS ACT BY A
JURY OF THE DISTRICT OF COLUMBIA COMPOSED ENTIRELY, DUE TO
CIRCUMSTANCES FORTUITOUS OR OTHERWISE, OF FEDERAL GOVERNMENT
EMPLOYEES.  MR. JUSTICE RUTLEDGE, SPEAKING FOR THE COURT, REEXAMINED
THE RULE OF THE WOOD CASE THAT GOVERNMENT EMPLOYEES ARE NOT
DISQUALIFIED AS A MATTER OF LAW FROM SERVING ON A JURY IN A CASE TO
WHICH THE GOVERNMENT IS A PARTY.  GOVERNMENT EMPLOYEES WERE AGAIN HELD
TO BE SUBJECT TO CHALLENGE ONLY FOR "ACTUAL BIAS." 

IT WOULD BE A WORK OF SUPEREROGATION TO ATTEMPT TO CLARIFY THE
STATEMENT OF THE LAW AFTER THE WOOD AND FRAZIER CASES.  SOME MAY DOUBT
THE WISDOM OF THE COURT'S DECISION IN LAYING DOWN THE RULE, BUT THERE
CAN BE NO DOUBT THAT THIS COURT HAS SPOKEN VERY CLEARLY, NOT ONLY ONCE,
BUT TWICE. 

NO QUESTION OF ACTUAL BIAS IS BEFORE US.  THE WAY IS OPEN IN EVERY
CASE TO RAISE A CONTENTION OF BIAS FROM THE REALM OF SPECULATION TO THE
REALM OF FACT.  IN BOTH THE WOOD AND FRAZIER CASES THIS COURT STRESSED
THAT WHILE IMPANELING A JURY THE TRIAL COURT HAS A SERIOUS DUTY TO
DETERMINE THE QUESTION OF ACTUAL BIAS, AND A BROAD DISCRETION IN ITS
RULINGS ON CHALLENGES THEREFOR.  UNITED STATES V. WOOD, SUPRA, 133-134,
150; FRAZIER V. UNITED STATES, SUPRA, 511-512.  WE REAFFIRM THOSE
PRINCIPLES.  IN EXERCISING ITS DISCRETION, THE TRIAL COURT MUST BE
ZEALOUS TO PROTECT THE RIGHTS OF AN ACCUSED.  AND WE AGREE THAT THIS
THE COURT MUST DO WITHOUT REFERENCE TO AN ACCUSED'S POLITICAL OR
RELIGIOUS BELIEFS, HOWEVER SUCH BELIEFS MAY BE RECEIVED BY A
PREDOMINANT SEGMENT OF OUR POPULATION.  IDEOLOGICAL STATUS IS NOT AN
APPROPRIATE GAUGE OF THE HIGH STANDARD OF JUSTICE TOWARD WHICH OUR
COURTS MAY NOT BE CONTENT ONLY TO STRIVE.  BUT WHILE ONE OF AN
UNPOPULAR MINORITY GROUP MUST BE ACCORDED THAT SOLICITUDE WHICH
PROPERLY ACCOMPANIES AN ACCUSED PERSON, HE IS NOT ENTITLED TO UNUSUAL
PROTECTION OR EXCEPTION. 

PETITIONER ASSERTS THAT IN ORDER TO SECURE THE CONSTITUTIONAL
GUARANTEE OF TRIAL BY AN IMPARTIAL JURY ALL GOVERNMENT EMPLOYEES MUST
BE HELD, IN THE SPECIAL CIRCUMSTANCES OF THIS CASE, TO BE BIASED AS A
MATTER OF LAW.  IT IS NOT CONTENDED THAT BIAS APPEARS AS A FACT FROM
THE RECORD.  AS FAR AS IT APPEARS, THE COURT WAS WILLING TO CONSIDER
ANY EVIDENCE WHICH WOULD INDICATE THAT INVESTIGATORY AGENCIES OF THE
GOVERNMENT HAD RECOGNIZED IN THE PAST OR WOULD TAKE COGNIZANCE IN THE
FUTURE OF A VOTE OF ACQUITTAL, BUT NO SUCH PROOF WAS MADE.  NOR WAS
THERE EVIDENCE WITH RESPECT TO THE EXISTENCE OF A CLIMATE OF OPINION
AMONG GOVERNMENT EMPLOYEES THAT THEY WOULD JEOPARDIZE THEIR TENURE OR
PROVOKE INVESTIGATION BY SUCH A VERDICT.  RATHER PETITIONER ASKS THAT
BIAS BE IMPLIED FROM THE RECITATION OF THE FOLLOWING CIRCUMSTANCES:  HE
IS A COMMUNIST; THE INSTIGATOR OF THE CHARGES IS THE UN-AMERICAN
ACTIVITIES COMMITTEE WHICH ALLEGEDLY WOULD TAKE NOTICE OF A VOTE FOR
ACQUITTAL; THE ISSUE IN THE CASE IS CONTEMPT OF CONGRESS; IN CONTEMPT
CASES THE GOVERNMENT'S INTEREST IS THE VINDICATION OF A DIRECT AFFRONT,
AS DISTINGUISHED FROM ITS ROLE IN AN ORDINARY PROSECUTION.  BUT
PETITIONER PRIMARILY BASES HIS CASE ON A REQUEST, IN EFFECT, THAT
JUDICIAL NOTICE BE TAKEN OF AN AURA OF SURVEILLANCE AND INTIMIDATION
WHICH IS SAID TO EXIST IN THE DISTRICT BECAUSE OF EXECUTIVE ORDER 9835,
OUTSTANDING AT THE TIME OF THE TRIAL. 

THE "LOYALTY ORDER," AS IT IS POPULARLY KNOWN, REQUIRES THE
INVESTIGATION OF ALL PERSONS ENTERING CIVILIAN EMPLOYMENT WITH THE
UNITED STATES; AS TO THOSE ALREADY IN SERVICE, HEADS OF DEPARTMENTS AND
AGENCIES ARE CHARGED WITH THE DUTY OF MAKING CERTAIN THAT DISLOYAL
PERSONS ARE NOT RETAINED.  PETITIONER MAINTAINS THAT BECAUSE OF THIS
ORDER, GOVERNMENT EMPLOYEES WOULD BE HESITANT TO VOTE FOR ACQUITTAL
BECAUSE SUCH ACTION MIGHT BE INTERPRETED AS "SYMPATHETIC ASSOCIATION"
WITH COMMUNISM. 

OF COURSE, THE LOYALTY ORDER COULD BE THE SUBJECT OF JUDICIAL
NOTICE.  SUCH NOTICE, HOWEVER, WOULD GIVE ONLY LIMITED ILLUMINATION. 
IT IS PROPER TO OBSERVE THAT THE LOYALTY ORDER IS NOT DIRECTED SOLELY
AGAINST COMMUNISTS, AND THAT THE CRIME OF WHICH PETITIONER WAS
CONVICTED IS NOT A CRIME PECULIAR TO COMMUNISTS.  FURTHER, THE LOYALTY
ORDER PRECEDED THE INSTANT TRIAL ONLY BY ABOUT THREE MONTHS.  IT WAS
PROMULGATED BY THE PRESIDENT ON MARCH 21, 1947.  THIS TRIAL BEGAN ON
JUNE 23, 1947, AND WAS CONCLUDED ON JUNE 26, 1947.  ON MAY 9, 1947, THE
PRESIDENT SUBMITTED TO CONGRESS A REQUEST FOR AN APPROPRIATION TO CARRY
OUT THE LOYALTY ORDER,  FN1  WHICH WAS NOT ENACTED INTO LAW UNTIL JULY
31, 1947.  FN2  IT WAS NOT UNTIL AUGUST 18, 1947, THAT STANDARD FORM
84, REQUESTING CERTAIN PERTINENT INFORMATION FROM EACH FEDERAL
EMPLOYEE, WAS MADE AVAILABLE.  FN3 

THE ADMINISTRATIVE IMPLEMENTATION OF EXECUTIVE ORDER 9835, WHICH WAS
YET TO COME, WAS APPARENTLY NOT THE SUBJECT OF ANTICIPATORY FEAR BY
THESE JURORS.  THEIR ANSWERS TO INTERROGATORIES ON THE INFLUENCE OF THE
LOYALTY ORDER WERE CATEGORICALLY TO THE CONTRARY.  FN4  WE MUST CREDIT
THESE REPRESENTATIONS, AND THIS IS PARTICULARLY SO IN THE ABSENCE OF
ANY EVIDENCE WHICH WOULD INDICATE AN OPPOSITE OPINION AMONG GOVERNMENT
EMPLOYEES.  ONE MAY NOT KNOW OR ALTOGETHER UNDERSTAND THE IMPONDERABLES
WHICH CAUSE ONE TO THINK WHAT HE THINKS, BUT SURELY ONE WHO IS TRYING
AS AN HONEST MAN TO LIVE UP TO THE SANCTITY OF HIS OATH IS WELL
QUALIFIED TO SAY WHETHER HE HAS AN UNBIASED MIND IN A CERTAIN MATTER. 

ULTIMATELY, PETITIONER'S CONTENTIONS AMOUNT TO THIS:  SINCE HE IS A
COMMUNIST, IN VIEW OF ALL THE SURROUNDING CIRCUMSTANCES AN EXCEPTION
MUST BE CARVED OUT OF THE RULE LAID DOWN IN THE STATUTE, AND CONSTRUED
IN WOOD AND FRAZIER, THAT THERE IS NO IMPLIED BIAS BY REASON OF
GOVERNMENT EMPLOYMENT.  THUS THE RULE WOULD APPLY TO ANYONE BUT A
COMMUNIST TRIED FOR CONTEMPT OF A CONGRESSIONAL COMMITTEE, BUT NOT TO A
COMMUNIST.  WE THINK THE RULE IN WOOD AND FRAZIER SHOULD BE UNIFORMLY
APPLIED.  A HOLDING OF IMPLIED BIAS TO DISQUALIFY JURORS BECAUSE OF
THEIR RELATIONSHIP WITH THE GOVERNMENT IS NO LONGER PERMISSIBLE.  THE
ACT MAKES NO EXCEPTION FOR DISTINCTIVE CIRCUMSTANCES.  IT STATES THAT:
"ALL  ...  PERSONS  ...  WHETHER EMPLOYED IN THE SERVICE OF THE
GOVERNMENT OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA  ...
SHALL BE QUALIFIED TO SERVE AS JURORS IN THE DISTRICT OF COLUMBIA AND
SHALL NOT BE EXEMPT FROM SUCH SERVICE  ...  " PRESERVATION OF THE
OPPORTUNITY TO PROVE ACTUAL BIAS IS A GUARANTEE OF A DEFENDANT'S RIGHT
TO AN IMPARTIAL JURY.  WE ADHERE TO OUR HOLDING THAT THE ENACTMENT OF
THE STATUTE IS WITHIN THE POWER OF CONGRESS, AND THAT THEREFORE
EMPLOYEES OF THE FEDERAL GOVERNMENT ARE NOT CHALLENGEABLE SOLELY BY
REASON OF THEIR EMPLOYMENT.    IT FOLLOWS THAT WE ARE UNABLE TO
CONCLUDE THAT THE FAILURE TO SUSTAIN THE CHALLENGE FOR CAUSE DENIED
PETITIONER AN "IMPARTIAL JURY."  "IMPARTIALITY IS NOT A TECHNICAL
CONCEPTION.  IT IS A STATE OF MIND.  FOR THE ASCERTAINMENT OF THIS
MENTAL ATTITUDE OF APPROPRIATE INDIFFERENCE, THE CONSTITUTION LAYS DOWN
NO PARTICULAR TESTS AND PROCEDURE IS NOT CHAINED TO ANY ANCIENT AND
ARTIFICIAL FORMULA."  UNITED STATES V. WOOD, SUPRA, 145-146.  IN THIS
CASE, NO MORE THAN THE TRIAL COURT CAN WE WITHOUT INJUSTICE TAKE
JUDICIAL NOTICE OF A MIASMA OF FEAR TO WHICH GOVERNMENT EMPLOYEES ARE
CLAIMED TO BE PECULIARLY VULNERABLE - AND FROM WHICH OTHER CITIZENS ARE
BY IMPLICATION IMMUNE.  VAGUE CONJECTURE DOES NOT CONVINCE THAT
GOVERNMENT EMPLOYEES ARE SO INTIMIDATED THAT THEY CRINGE BEFORE THEIR
GOVERNMENT IN FEAR OF INVESTIGATION AND LOSS OF EMPLOYMENT IF THEY DO
THEIR DUTY AS JURORS, WHICH DUTY THIS SAME GOVERNMENT HAS IMPOSED UPON
THEM.  THERE IS NO DISCLOSURE IN THIS RECORD THAT THESE JURORS DID NOT
BRING TO BEAR, AS IS PARTICULARLY THE CUSTOM WHEN PERSONAL LIBERTY
HINGES ON THE DETERMINATION, THE SENSE OF RESPONSIBILITY AND THE
INDIVIDUAL INTEGRITY BY WHICH MEN JUDGE MEN. 

THE JUDGMENT IS AFFIRMED. 

FN1  H.R. DOC. NO. 242, 80TH CONG., 1ST SESS. (1947); 93 CONG. REC.
4977(1947). 

FN2  61 STAT. 696, 700.  SEE INVESTIGATIONS SUBCOMMITTEE ON
EXPENDITURES, INVESTIGATION OF FEDERAL EMPLOYEES LOYALTY PROGRAM, S.
REP. NO. 1775, 80TH CONG., 2D SESS. (1948). 

FN3  FEDERAL PERSONNEL MANUAL I2-4.  IN A PRESS RELEASE DATED
NOVEMBER 7, 1947, THE CIVIL SERVICE COMMISSION ANNOUNCED THE
APPOINTMENT OF THE LOYALTY REVIEW BOARD.  A STATEMENT OF THE BOARD WITH
RESPECT TO ITS REGULATIONS WAS PUBLISHED ON JANUARY 20, 1948.  13 FED.
REG. 253. 

FN4  "MR. MCCABE:  YOU ARE FAMILIAR WITH THE GOVERNMENT LOYALTY OATH
INVESTIGATION? 

"JUROR HOLFORD:  I BELIEVE I AM.  I HAVE HEARD SOMETHING OF IT. 

"MR. MCCABE:  DO YOU FEEL THAT RENDERING A VERDICT OF NOT GUILTY IN
THIS CASE, IF YOU COME TO THAT CONCLUSION, IT WOULD STOP YOU, ANY
CRITICISM OR EMBARRASSMENT AMONG YOUR FELLOW EMPLOYEES? 

"JUROR HOLFORD:  NONE WHATSOEVER. 

"MR. MCCABE:  OR BY YOUR SUPERIORS? 

"JUROR HOLFORD:  NO. 

"MR. MCCABE:  YOU WOULD NOT HAVE ANY THOUGHT THAT WOULD BE TAKEN AS
EVIDENCE OF FRIENDLINESS TO COMMUNISM? 

"JUROR HOLFORD:  NO; I AM NOT WORRIED ABOUT MY JOB THAT WAY." 

     .     .         .         .         . 

"MR. MCCABE:  NOW, MR. JONES, YOU HAVE HEARD, HAVE YOU, OF THE
LOYALTY TEST OR LOYALTY INVESTIGATION WHICH IS GOING ON TO TEST THE
LOYALTY OF GOVERNMENT EMPLOYEES?  HAVE YOU HEARD OF THAT? 

"MR. JONES:  YES, I HAVE. 

"MR. MCCABE:  ARE YOU AWARE OF THE FACT THAT ONE OF THE TESTS THAT
MIGHT DISQUALIFY OR PREVENT YOU FROM GOVERNMENT EMPLOYMENT IS FRIENDLY
ASSOCIATION WITH ANY COMMUNIST PERSON OR ANY COMMUNIST ORGANIZATIONS? 

"MR. JONES:  THAT WOULD NOT.  I AM A CIVIL SERVICE EMPLOYEE.  I HAVE
TAKEN AN EXAMINATION FOR MY JOB. 

"MR. MCCABE:  YES.  ARE YOU AWARE OF THE FACT THAT, DESPITE ANY CIVIL
SERVICE PROTECTION, STILL A FINDING THAT YOU WERE IN FRIENDLY
ASSOCIATION WITH ANY COMMUNIST OR COMMUNIST ORGANIZATION WOULD RENDER
YOU INELIGIBLE TO CONTINUE IN YOUR GOVERNMENT POSITION? 

"MR. JONES:  IT WOULD NOT. 

"MR. MCCABE:  WHAT? 

"MR. JONES:  IT WOULD NOT." 

THE REPLIES OF THE OTHER JURORS WERE IN A SIMILAR VEIN. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED CONCURS IN THE OPINION AND JUDGMENT OF THE COURT. 
HE READS THE COURT'S DECISION TO MEAN THAT GOVERNMENT EMPLOYEES MAY BE
BARRED FOR IMPLIED BIAS WHEN CIRCUMSTANCES ARE PROPERLY BROUGHT TO THE
COURT'S ATTENTION WHICH CONVINCE THE COURT THAT GOVERNMENT EMPLOYEES
WOULD NOT BE SUITABLE JURORS IN A PARTICULAR CASE.  ABSENT SUCH A
SHOWING, HOWEVER, GOVERNMENT EMPLOYEES MAY NOT BE BARRED FROM JURY
SERVICE MERELY BECAUSE THEY ARE GOVERNMENT EMPLOYEES. 

MR. JUSTICE JACKSON, CONCURRING IN THE RESULT. 

IN BUT TWO WAYS COULD THE COURT AVOID AFFIRMING THE CONVICTION OF
DENNIS.  ONE IS TO RESCIND THE GENERAL RULE ESTABLISHED IN FRAZIER V.
UNITED STATES, 335 U.S. 497, THAT A JURY IS, IN CONTEMPLATION OF LAW
"IMPARTIAL," EVEN WHEN ENTIRELY COMPOSED OF GOVERNMENT EMPLOYEES.  THE
OTHER IS TO RETAIN, AND THEREBY STRENGTHEN, THAT GENERAL RULE BUT
CREATE A SPECIAL EXEMPTION FOR COMMUNISTS. 

I ADHERE WITH INCREASING CONVICTION TO MY DISSENT IN FRAZIER V.
UNITED STATES, SUPRA AT 514.  THE COURT THERE DUG A PIT DANGEROUS FOR
CIVIL LIBERTIES.  THE RIGHT TO FAIR TRIAL IS THE RIGHT THAT STANDS
GUARDIAN OVER ALL OTHER RIGHTS.  REFERENCE TO THE REPORTS WILL SHOW
WHAT OTHERWISE ONE WOULD NOT BELIEVE:  THAT THE COURT, BY A BARE
MAJORITY, HELD IT TO BE ENTIRELY FAIR TO TRY A PERSON BEFORE A JURY
CONSISTING SOLELY OF GOVERNMENT EMPLOYEES, PLUS THE FACT THAT ONE JUROR
AND THE WIFE OF ANOTHER WORKED IN THE OFFICE OF THE DEPARTMENT HEAD
RESPONSIBLE FOR ENFORCEMENT OF THE LAW CHARGED TO BE VIOLATED.  THE
COMMON INSTINCT OF MEN FOR FAIR DEALING AND THE EXPERIENCE OF TRIAL
LAWYERS ALIKE REJECT THIS HOLDING.  WHENEVER ANY MAJORITY CAN BE
MUSTERED TO OVERRULE THAT WEIRD AND MISGUIDED DECISION, I SHALL BE ONE
OF IT. 

BUT THE WAY FOR THE COURT TO GET OUT OF THE HOLE IT FELL INTO WITH
FRAZIER IS NOT TO DIG ANOTHER AND WORSE ONE.  WE ARE ACTUALLY URGED TO
HOLD THAT THE KIND OF JURY A DEFENDANT MAY HAVE DEPENDS UPON HIS
POLITICAL OPINIONS OR AFFILIATIONS.  THE OFFENSE FOR WHICH DENNIS WAS
TRIED WAS CONTEMPT OF A COMMITTEE OF CONGRESS.  THAT IS NOT AN OFFENSE
THAT TOUCHES THE IMMEDIATE SECURITY OF THE NATION.  NOR DOES GUILT OR
INNOCENCE DEPEND UPON DEFENDANT'S POLITICAL VIEWS OR PARTY MEMBERSHIP. 
OF COURSE, HE IS, AND THE JURY WAS BOUND TO LEARN THAT HE IS, A
PROMINENT FIGURE IN THE COMMUNIST PARTY.  BUT THE SAME ACTS WOULD BE
THE SAME OFFENSE IF HE WERE AN ORTHODOX DEMOCRAT.  THE SOLE GROUND FOR
CREATING AN EXEMPTION FROM THE FRAZIER RULE IS THAT THE DEFENDANT IS A
COMMUNIST, AND COMMUNISTS ARE NOW EXCEEDINGLY UNPOPULAR IN WASHINGTON. 
I AGREE THAT THIS HIGHLIGHTS THE UNFAIRNESS OF THE FRAZIER RULE AND
PROVIDES REASON FOR OVERRULING IT; BUT I DO NOT AGREE THAT IT JUSTIFIES
THE PROPOSED EXCEPTION TO THAT DECISION. 

THE FRAZIER DOCTRINE WAS PROMULGATED BY A MAJORITY OF THE COURT WHICH
WELL KNEW THAT ITS RULE WOULD APPLY TO THIS TYPE OF CASE AND IN THESE
TIMES.  THAT DECISION WAS HANDED DOWN ON DECEMBER 20, 1948, WITH THIS
PRESENT CASE JUST AROUND THE CORNER.  DENNIS HAD ALREADY BEEN CONVICTED
AND HIS CONVICTION HAD BEEN AFFIRMED IN HIGHLY PUBLICIZED PROCEEDINGS
OCCURRING ONLY A FEW CITY BLOCKS FROM US; AND HIS PETITION FOR
CERTIORARI HAD BEEN FILED IN THIS COURT.  THE FOUR OF US DISSENTING IN
FRAZIER WARNED SPECIFICALLY THAT THE GOVERNMENT IN THESE TIMES IS USING
ITS POWER AS NEVER BEFORE TO PRY INTO LIVES AND THOUGHTS OF GOVERNMENT
EMPLOYEES.  ALL THAT IS URGED NOW IS MORE OF THE SAME AND THERE IS
NOTHING IN THIS SITUATION THAT SHOULD NOT HAVE BEEN WITHIN THE
CONTEMPLATION OF THE COURT WHEN THE FRAZIER CASE WAS DECIDED THE WAY IT
WAS.  THE PROPOSAL NOW IS A PARTIAL REPEAL - FOR COMMUNISTS ONLY. 

COURTS SHOULD GIVE TO A COMMUNIST EVERY RIGHT AND ADVANTAGE THAT THEY
GIVE TO ANY DEFENDANT.  BUT IT IS INCONCEIVABLE THAT BEING A COMMUNIST
CAN ENTITLE A DEFENDANT TO MORE.  LET US PICTURE THE PROPOSAL IN
OPERATION.  TWO DEFENDANTS ARE BROUGHT TO TRIAL FOR CONTEMPT OF
CONGRESS.  ONE, A COMMUNIST, HAS DEFIED THE UN-AMERICAN ACTIVITIES
COMMITTEE.  THE OTHER, A REPUBLICAN, HAS DEFIED THE COMMITTEE
INVESTIGATING THE STATE DEPARTMENT.  BOTH MAKE WELL-FOUNDED CLAIMS THAT
THE EXECUTIVE BRANCH OF THE GOVERNMENT IS HOSTILE TO THEM; BOTH ASK TO
EXCLUDE ITS EMPLOYEES FROM THE JURY SO THEY MAY BE TRIED BY PERSONS
UNDER NO OBLIGATION TO THEIR ADVERSARIES.  THE PROPOSAL IS THAT THE
TRIAL JUDGE SHOULD GRANT THE MOTION OF THE COMMUNIST AND DENY THAT OF
THE REPUBLICAN.  WHAT THEN BECOMES OF EQUAL JUSTICE UNDER LAW? 

IT IS TRUE THAT COMMUNISTS ARE THE CURRENT PROBIA IN WASHINGTON.  BUT
ALWAYS, SINCE I CAN REMEMBER, SOME GROUP OR OTHER IS BEING INVESTIGATED
AND CASTIGATED HERE.  AT VARIOUS TIMES IT HAS BEEN BUNDISTS AND
GERMANS, JAPANESE, LOBBYISTS, TAX EVADERS, OIL MEN, UTILITY MEN,
BANKERS, BROKERS, LABOR LEADERS, SILVER SHIRTS AND FASCISTS.  AT TIMES,
USUALLY AFTER DRAMATIC AND PUBLICIZED EXPOSURES, MEMBERS OF THESE
GROUPS HAVE BEEN BROUGHT TO TRIAL FOR SOME OFFENSE.  I THINK THAT NONE
OF THEM AT SUCH TIMES EVER SHOULD BE FORCED TO DEFEND THEMSELVES
AGAINST THE GOVERNMENT'S ACCUSATIONS BEFORE THE GOVERNMENT'S
EMPLOYEES.  BUT SO LONG AS ACCUSED PERSONS WHO ARE REPUBLICANS,
DIXIECRATS, SOCIALISTS, OR DEMOCRATS MUST PUT UP WITH SUCH A JURY, IT
WILL HAVE TO DO FOR COMMUNISTS. 

MR. JUSTICE BLACK, DISSENTING. 

THE PETITIONER, DENNIS, WAS CONVICTED OF WILFULLY REFUSING TO GIVE
TESTIMONY BEFORE THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES.  THE
EVIDENCE AGAINST HIM WAS EXCEPTIONALLY STRONG.  BUT NO MATTER HOW
STRONG THAT EVIDENCE, HE HAD A CONSTITUTIONAL RIGHT TO HAVE IT PASSED
ON BY AN IMPARTIAL JURY.  FN1  NO JUROR CAN MEET THE TEST OF
"IMPARTIALITY" IF HE HAS GOOD REASON TO FEAR THAT A VOTE FOR ACQUITTAL
WOULD SUBJECT HIM TO HARASSING INVESTIGATIONS AND PERHAPS COST HIM HIS
JOB.  ON THIS GROUND THE GOVERNMENT EMPLOYEES CALLED FOR JURY DUTY WERE
CHALLENGED FOR CAUSE BY PETITIONER.  I AM CONVINCED THAT DENIAL OF THIS
CHALLENGE DEPRIVED DENNIS OF AN IMPARTIAL JURY. 

ALTHOUGH EACH JUROR ASSERTED THAT HE OR SHE COULD VOTE FOR ACQUITTAL
WITHOUT FEAR OF ADVERSE CONSEQUENCES, THAT CANNOT BE ACCEPTED AS
CONCLUSIVE EVIDENCE OF IMPARTIALITY.  THE TEST OF BIAS SUFFICIENT TO
EXCLUDE A JUROR FOR CAUSE IS NOT WHAT THE PARTICULAR JUROR BELIEVES HE
COULD DO. LONG AGO CHIEF JUSTICE MARSHALL RULED THAT A PERSON "MAY
DECLARE THAT HE FEELS NO PREJUDICE IN THE CASE, AND YET THE LAW
CAUTIOUSLY INCAPACITATES HIM FROM SERVING ON THE JURY; BECAUSE IT
SUSPECTS PREJUDICE; BECAUSE IN GENERAL, PERSONS IN A SIMILAR SITUATION,
WOULD FEEL PREJUDICE."  1 BURR'S TRIAL 414, 415, 25 FED. CAS. 14,692G,
AT P. 50.  AND THIS COURT, WHILE RECOGNIZING THAT PERSONS OF THE
"HIGHEST HONOR AND GREATEST SELF-SACRIFICE" WOULD NOT BE INFLUENCED BY
FEAR OF FINANCIAL LOSSES, HAS SAID THAT "EVERY PROCEDURE WHICH WOULD
OFFER A POSSIBLE TEMPTATION TO THE AVERAGE MAN AS A JUDGE  ...  NOT TO
HOLD THE BALANCE NICE, CLEAR AND TRUE BETWEEN THE STATE AND THE
ACCUSED, DENIES THE LATTER DUE PROCESS OF LAW."  TUMEY V. OHIO, 273
U.S. 510, 532.  FN2 

WE DID NOT DEPART FROM THE "AVERAGE MAN" TEST IN UNITED STATES V.
WOOD, 299 U.S. 123, OR FRAZIER V. UNITED STATES, 335 U.S. 497.  THOSE
CASES INVOLVED CONVICTIONS FOR THEFT AND DOPE-PEDDLING.  THEY DID HOLD
THAT PROOF OF MERE GOVERNMENTAL EMPLOYMENT WAS NOT ENOUGH, STANDING
ALONE, AUTOMATICALLY TO IMPUTE DISQUALIFYING BIAS IN EVERY CRIMINAL
PROCEEDING BROUGHT BY THE FEDERAL GOVERNMENT.  BUT BOTH OPINIONS
CLEARLY INDICATED THAT "PARTICULAR ISSUES OR CIRCUMSTANCES" MIGHT
REQUIRE EXCLUSION OF GOVERNMENT EMPLOYEES IN ORDER TO ASSURE AN
IMPARTIAL JURY.  FN3  IN COMPLETE HARMONY WITH THE PRINCIPLE DECLARED
IN THE BURR AND TUMEY CASES, OUR WOOD OPINION CAUTIONED THAT A
GOVERNMENT EMPLOYEE COULD BE DISQUALIFIED IF "IN VIEW OF THE NATURE OR
CIRCUMSTANCES OF HIS EMPLOYMENT, OR OF THE RELATION OF THE PARTICULAR
GOVERNMENTAL ACTIVITY TO THE MATTERS INVOLVED IN THE PROSECUTION, OR
OTHERWISE, HE HAD ACTUAL BIAS  ...  "  FN4  299 U.S. AT 134.  AND THE
FRAZIER OPINION EMPHASIZED THAT THESE FACTORS WOULD SUPPORT
DISQUALIFICATION OF GOVERNMENT EMPLOYEES FOR "ACTUAL BIAS" WITHOUT
PROOF OF "PREJUDICE IN THE SUBJECTIVE SENSE."  335 U.S. AT 510-11, N.
19. 

SPECIAL CIRCUMSTANCES OF THE TYPE SUPPORTING DISQUALIFICATION UNDER
THESE DECISIONS ARE, IN MY JUDGMENT, CLEARLY SHOWN BY THIS RECORD.  THE
DIFFICULTY OF SECURING AN IMPARTIAL JURY AT ALL IS REVEALED BY THE
NUMBER OF POTENTIAL JURORS WHO FELT THAT DENNIS'S POSITION AS SECRETARY
OF THE COMMUNIST PARTY IN THIS COUNTRY WOULD ALONE PREVENT THEIR GIVING
HIM A FAIR TRIAL.  FN5  AND THE PREVAILING PATTERN OF LOYALTY
INVESTIGATIONS AND THREATENED PURGES MAKES IT WHOLLY UNREALISTIC TO
EXPECT GOVERNMENT EMPLOYEES TO ENTER THE JURY BOX WITH THAT QUALITY OF
DISINTERESTEDNESS ESSENTIAL TO COMPLETE IMPARTIALITY. 

THE REASONS URGED FOR DISQUALIFYING GOVERNMENT EMPLOYEES WERE FIRST
PRESENTED TO THE TRIAL COURT IN AN AFFIDAVIT SUPPORTING PETITIONER'S
MOTION FOR CHANGE OF VENUE.  THE SWORN ALLEGATIONS OF THAT AFFIDAVIT
WERE NEVER DENIED BY THE GOVERNMENT.  IN ESSENCE, THE AFFIDAVIT POINTED
OUT THAT ALL FEDERAL EMPLOYEES WERE UNDER CONSTANT SCRUTINY BY VARIOUS
AGENCIES AND CONGRESSIONAL COMMITTEES FOR POSSIBLE SYMPATHY WITH
COMMUNISTS OR WITH AFFILIATED ORGANIZATIONS; THAT UNDER EXECUTIVE ORDER
9835, ISSUED FOLLOWING VIGOROUS DEMANDS BY THE CONGRESSIONAL COMMITTEE
WHICH HAD INITIATED THE PROSECUTION OF DENNIS, ANY OF THESE EMPLOYEES
WOULD LOSE HIS JOB IF A "LOYALTY TEST" REVEALED "REASONABLE GROUNDS"
FOR BELIEF THAT HE WAS DISLOYAL; THAT MEMBERS OF THE SAME COMMITTEE HAD
STATED THAT ANYTHING LESS THAN IMPOSITION OF MAXIMUM PUNISHMENT ON
DENNIS WOULD EXPOSE THE PERSONS RESPONSIBLE THEREFOR TO CHARGES OF
DISLOYAL SYMPATHY WITH COMMUNISM; FN6  AND THAT CONSEQUENTLY A VOTE FOR
ACQUITTAL WOULD JEOPARDIZE THE JOB OF ANY GOVERNMENT EMPLOYEE SO
VOTING.  FN7  PETITIONER AGAIN CITED THE "LOYALTY TEST" IN CHALLENGING
FOR CAUSE ALL GOVERNMENTAL EMPLOYEES CALLED AS JURORS, ALTHOUGH HE DID
NOT BOTHER TO REARGUE THE FACTS BECAUSE HIS REASONS WERE "CLEAR TO US
ALL."  THUS PETITIONER CALLED THE TRIAL JUDGE'S ATTENTION TO
SUBSTANTIAL FACTS IN SUPPORT OF HIS CHALLENGES.    TO SAY THAT
EMPLOYEES OF THE UNITED STATES COULD MEET OBJECTIVE TESTS OF COMPLETE
IMPARTIALITY IN THE TRIAL OF CASES LIKE THIS IS TO DISREGARD HUMAN
NATURE.  PROBABLY AT NO PERIOD OF THE NATION'S HISTORY HAS THE
"LOYALTY" OF GOVERNMENT EMPLOYEES BEEN SUBJECTED TO SUCH CONSTANT
SCRUTINY AND INVESTIGATION BY SO MANY GOVERNMENT AGENTS AND SECRET
INFORMERS.  AND FOR THE PAST FEW YEARS PRESS AND RADIO HAVE BEEN
CROWDED WITH CHARGES BY RESPONSIBLE OFFICIALS AND OTHERS THAT THE
WRITINGS, FRIENDSHIPS, OR ASSOCIATIONS OF SOME GOVERNMENT EMPLOYEE HAVE
BRANDED HIM "DISLOYAL."  GOVERNMENT EMPLOYEES HAVE GOOD REASON TO FEAR
THAT AN HONEST VOTE TO ACQUIT A COMMUNIST OR ANYONE ELSE ACCUSED OF
"SUBVERSIVE" BELIEFS, HOWEVER FLIMSY THE PROSECUTION'S EVIDENCE, MIGHT
BE CONSIDERED A "DISLOYAL" ACT WHICH COULD EASILY COST THEM THEIR JOB. 
THAT VOTE ALONE WOULD IN ALL PROBABILITY EVOKE CLAMOROUS DEMANDS THAT
HE BE PUBLICLY INVESTIGATED OR DISCHARGED OUTRIGHT; AT THE VERY LEAST
IT WOULD RESULT IN WHISPERINGS, SUSPICIONS, AND A BLEMISHED
REPUTATION. 

IN THE WOOD CASE THIS COURT REGARDED AS "FAR-FETCHED AND CHIMERICAL"
THE SUGGESTION THAT NO GOVERNMENT EMPLOYEE COULD HAVE VOTED FOR
ACQUITTAL OF THEFT WITHOUT ENDANGERING HIS JOB.  I AGREE.  BUT UNDER
THE CIRCUMSTANCES HERE IT SEEMS EQUALLY "FAR-FETCHED AND CHIMERICAL" TO
SUGGEST THAT GOVERNMENT EMPLOYEES, HOWEVER CONVINCED OF INNOCENCE,
WOULD FEEL COMPLETELY FREE TO ACQUIT A DEFENDANT CHARGED WITH
DISOBEYING A COMMAND OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES.  MY
BELIEF IS THAT NO DEFENDANT CHARGED WITH SUCH AN OFFENSE, WHATEVER HIS
POLITICAL AFFILIATION, SHOULD BE FORCED TO ACCEPT A GOVERNMENT EMPLOYEE
AS A JUROR.  NOR SHOULD THE GOVERNMENT WANT SUCH AN UNFAIR ADVANTAGE. 
OF COURSE THIS ADVANTAGE MAKES CONVICTIONS EASIER.  THAT IS PRECISELY
WHAT THE SIXTH AMENDMENT WAS DESIGNED TO PREVENT.  IT COMMANDS
IMPARTIALITY IN THE JURY-BOX.  IMPARTIALITY CANNOT SURVIVE IN THE
SHADOW OF THREATS TO A JUROR'S REPUTATION AND LIVELIHOOD. 

FN1  THE SIXTH AMENDMENT PROVIDES THAT DEFENDANTS CHARGED WITH CRIMES
IN FEDERAL COURTS "SHALL ENJOY THE RIGHT TO  ...  TRIAL, BY AN
IMPARTIAL JURY."  AND SEE TUMEY V. OHIO, 273 U.S. 510, 535: "NO MATTER
WHAT THE EVIDENCE WAS AGAINST HIM, HE HAD THE RIGHT TO HAVE AN
IMPARTIAL JUDGE."  THIS CASE RELATED TO FINANCIAL INTERESTS OF A MAYOR
TRYING DEFENDANTS, BUT THE PRINCIPLES THERE DECLARED ARE EQUALLY
APPLICABLE TO JURORS WHO MUST JUDGE THE GUILT OR INNOCENCE OF A
DEFENDANT. 

FN2  SEE NOTE 1, SUPRA. 

FN3  IN THE FRAZIER CASE ONE JUROR AND THE WIFE OF ANOTHER WERE
EMPLOYED IN THE DEPARTMENT OF TREASURY, WHICH WAS CHARGED WITH
ENFORCING THE ANTI-NARCOTIC LAWS.  THIS COURT DID NOT DECIDE WHETHER
SUCH EMPLOYMENT WOULD DISTINGUISH THESE JURORS FROM OTHER GOVERNMENT
EMPLOYEES SUFFICIENTLY TO SUPPORT A TIMELY CHALLENGE, BECAUSE THE ONLY
SPECIAL CHALLENGE RAISING THIS GROUND WAS BELATEDLY MADE IN A MOTION
FOR NEW TRIAL. 

FN4  THE COURT ALSO STATED THAT BIAS COULD NOT BE IMPUTED "SIMPLY BY
VIRTUE OF GOVERNMENTAL EMPLOYMENT, WITHOUT REGARD TO ANY ACTUAL
PARTIALITY GROWING OUT OF THE NATURE AND CIRCUMSTANCES OF PARTICULAR
CASES."  299 U.S. AT 149. 

FN5  THE DIFFICULTY OF OBTAINING AN IMPARTIAL JURY IN CASES WHERE
POPULAR INDIGNATION IS AROUSED BECAME MANIFEST DURING WORLD WAR I.
JUDGE AMIDON, A VETERAN TRIER OF ESPIONAGE ACT CASES, DESCRIBED HIS
EXPERIENCES AS FOLLOWS: 

"FOR THE FIRST SIX MONTHS AFTER JUNE 15, 1917, I TRIED WAR CASES
BEFORE JURYMEN WHO WERE CANDID, SOBER, INTELLIGENT BUSINESS MEN, WHOM I
HAD KNOWN FOR THIRTY YEARS, AND WHO UNDER ORDINARY CIRCUMSTANCES WOULD
HAVE HAD THE HIGHEST RESPECT FOR MY DECLARATIONS OF LAW, BUT DURING
THAT PERIOD THEY LOOKED BACK INTO MY EYES WITH THE SAVAGERY OF WILD
ANIMALS, SAYING BY THEIR MANNER, 'AWAY WITH THIS TWIDDLING, LET US GET
AT HIM.'  MEN BELIEVED DURING THAT PERIOD THAT THE ONLY VERDICT IN A
WAR CASE, WHICH COULD SHOW LOYALTY, WAS A VERDICT OF GUILTY."  QUOTED
IN CHAFEE, FREE SPEECH IN THE UNITED STATES 70(1941 ED.). 

FN6  IN THIS CONNECTION THE AFFIDAVIT ASSERTED THAT COMMITTEE MEMBERS
"HAVE STATED OPENLY ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES THAT
THEY DEMAND A PROSECUTION AND CONVICTION OF, AND THE IMPOSITION OF THE
MAXIMUM PUNISHMENT ON THIS DEFENDANT.  THEY HAVE CHARGED THAT ANYTHING
LESS WOULD OPEN THE PERSONS RESPONSIBLE THEREFOR TO A CHARGE OF
DISLOYALTY, AND SYMPATHY TO COMMUNISM." 

IN ORAL ARGUMENT ON THE MOTION FOR CHANGE OF VENUE AND AN
ACCOMPANYING MOTION FOR CONTINUANCES, COUNSEL ELABORATED ON ONE FACET
OF THIS CHARGE BY READING FROM THE CONGRESSIONAL RECORD A COLLOQUY
BETWEEN A MEMBER OF THE COMMITTEE AND OTHER CONGRESSMEN.  THE SUBSTANCE
OF THE COLLOQUY WAS THAT THE ATTORNEY GENERAL SHOULD BE IMPEACHED
UNLESS HE OBTAINED QUICK TRIALS OF DENNIS AND OTHERS CHARGED WITH
CONTEMPT BY THE COMMITTEE.  93 CONG. REC. 3815-3816. 

FN7  THE AFFIDAVIT READ IN PART:  "THE ENORMOUS CONSEQUENCES OF THE
EXECUTIVE ORDER REFERRED TO ABOVE MAKE IT ABSOLUTELY IMPOSSIBLE TO
SECURE A FAIR AND IMPARTIAL TRIAL IN THE DISTRICT OF COLUMBIA FOR A
LEADER OF THE COMMUNIST PARTY, PARTICULARLY WHEN THE CHARGE AGAINST HIM
IS LAID BY THE COMMITTEE ON UN-AMERICAN ACTIVITIES.  THE FINDING OF
DISLOYALTY INVOLVES NOT ONLY DISCHARGE FROM EMPLOYMENT BUT A PERMANENT
BRANDING AS A DISLOYAL AND UNDESIRABLE PERSON, ENDANGERING THE
POSSIBILITY OF EARNING A LIVELIHOOD IN THE FUTURE.  NO INDIVIDUAL CAN
BE EXPECTED LIGHTLY TO TAKE THE RISK OF INCURRING SUCH CONSEQUENCES TO
HIMSELF, HIS FAMILY AND HIS ASSOCIATES.  THE MEANING OF 'SYMPATHETIC
ASSOCIATION' IS UNDEFINED IN THE EXECUTIVE ORDER AND THERE IS NO
ASSURANCE THAT IT MAY NOT BE CONSTRUED BY THE ATTORNEY GENERAL TO
INCLUDE A RECOGNITION OF THE RIGHTS OF A MEMBER OF THE COMMUNIST
PARTY.  AND EVEN IF THE ATTORNEY GENERAL HIMSELF WOULD NOT SO CONSTRUE
IT, IT IS IMPOSSIBLE TO ASSUME THAT PERSONS SELECTED FOR JURY DUTY WILL
RUN THE RISK OF A CHARGE OF SYMPATHY WITH COMMUNISM FLOWING FROM VOTING
FOR AN ACQUITTAL OF SO PROMINENT A LEADER OF THE COMMUNIST PARTY." 

MR. JUSTICE FRANKFURTER, DISSENTING. 

ACQUIESCENCE IN A PRECEDENT DOES NOT REQUIRE APPROVAL OF ITS
EXTENSION.  ALTHOUGH I ADHERE TO THE VIEWS EXPRESSED BY MR. JUSTICE
JACKSON FOR THE MINORITY IN FRAZIER V. UNITED STATES, 335 U.S. 497,
514, I DO NOT URGE THAT IT BE OVERRULED.  BUT IN ABIDING BY IT I NEED
NOT ASSENT TO ENLARGING THE AREAS OF ITS UNDESIRABILITY.  THE
CONSTITUTIONAL COMMAND FOR TRIAL BY AN "IMPARTIAL JURY" CASTS UPON THE
JUDICIARY THE EXERCISE OF JUDGMENT IN DETERMINING THE CIRCUMSTANCES
WHICH PRECLUDE THAT FREE, FEARLESS AND DISINTERESTED CAPACITY IN
ANALYZING EVIDENCE WHICH IS INDISPENSABLE IF JURYMEN ARE TO DEAL
IMPARTIALLY WITH AN ACCUSATION.  THE JUDGMENT THAT A COURT MUST THUS
EXERCISE IN FINDING "DISQUALIFICATION FOR BIAS" OF PERSONS WHO BELONG
TO A PARTICULAR CLASS IS A PSYCHOLOGICAL JUDGMENT.  IT IS A JUDGMENT
FOUNDED ON HUMAN EXPERIENCE AND NOT ON TECHNICAL LEARNING.  AND SO IT
DOES NOT FOLLOW THAT MERELY BECAUSE GOVERNMENT EMPLOYEES ARE NOT
AUTOMATICALLY DISQUALIFIED AS JURORS IN EVERY PROSECUTION IN THE
DISTRICT OF COLUMBIA THEY SHOULD NOT BE DISQUALIFIED IN PROSECUTIONS
THAT ARE DEEMED TO CONCERN THE SECURITY OF THE NATION. 

THE REASON FOR DISQUALIFYING A WHOLE CLASS ON THE GROUND OF BIAS IS
THE LAW'S RECOGNITION THAT IF THE CIRCUMSTANCES OF THAT CLASS IN THE
RUN OF INSTANCES ARE LIKELY TO GENERATE BIAS, CONSCIOUSLY OR
UNCONSCIOUSLY, IT WOULD BE A HOPELESS ENDEAVOR TO SEARCH OUT THE IMPACT
OF THESE CIRCUMSTANCES ON THE MIND AND JUDGMENT OF A PARTICULAR
INDIVIDUAL.  THAT IS THE REASON WHY THE INFLUENCES OF CONSANGUINITY OR
OF FINANCIAL INTEREST ARE NOT INDIVIDUALLY CANVASSED.  LAW AS A
RESPONSE TO LIFE RECOGNIZES THE OPERATION OF SUCH INFLUENCES EVEN
THOUGH NOT CONSCIOUSLY OR CLEARLY ENTERTAINED.  THE APPEARANCE OF
IMPARTIALITY IS AN ESSENTIAL MANIFESTATION OF ITS REALITY.  THIS IS THE
BASIC PSYCHOLOGICAL REASON WHY THE FOUNDERS OF THIS COUNTRY GAVE THE
JUDICIARY AN UNLIMITED TENURE.  IMPARTIALITY REQUIRES INDEPENDENCE, AND
INDEPENDENCE, THE FRAMERS REALIZED, REQUIRES FREEDOM FROM THE EFFECT OF
THOSE "OCCASIONAL ILLHUMORS IN THE SOCIETY," WHICH AS ALEXANDER
HAMILTON PUT IT IN THE FEDERALIST ARE "THE INFLUENCE OF PARTICULAR
CONJUNCTURES."  THE FEDERALIST, NO. 78 AT 400(BELOFF ED. 1948). 

ONE OF THE GREATEST OF JUDGES HAS ASSURED US THAT "JUDGES ARE APT TO
BE NAIF, SIMPLE-MINDED MEN."  HOLMES, COLLECTED LEGAL PAPERS 295.  ONLY
NAIVETE COULD BE UNMINDFUL OF THE FORCE OF THE CONSIDERATIONS SET FORTH
BY MR. JUSTICE BLACK, AND KNOWN OF ALL MEN.  THERE IS A PERVASIVENESS
OF ATMOSPHERE IN WASHINGTON WHEREBY FORCES ARE RELEASED IN RELATION TO
JURORS WHO MAY BE DEEMED SUPPORTERS OF AN ACCUSED UNDER A CLOUD OF
DISLOYALTY THAT ARE EMOTIONALLY DIFFERENT FROM THOSE WHICH COME INTO
PLAY IN RELATION TO JURORS DEALING WITH OFFENSES WHICH IN THEIR
IMPLICATIONS DO NOT TOUCH THE SECURITY OF THE NATION.  CONSIDERING THE
SITUATION IN WHICH MEN OF POWER AND INFLUENCE FIND THEMSELVES THROUGH
SUCH ALLEGED ASSOCIATIONS, IT IS ASKING MORE OF HUMAN NATURE IN
ORDINARY GOVERNMENT EMPLOYEES THAN HISTORY WARRANTS TO ASK THEM TO
EXERCISE THAT "UNCOMMON PORTION OF FORTITUDE" WHICH THE FOUNDERS OF
THIS NATION THOUGHT JUDGES COULD EXERCISE ONLY IF GIVEN A LIFE TENURE. 
THE FEDERALIST, SUPRA. 

A GOVERNMENT EMPLOYEE OUGHT NOT TO BE ASKED WHETHER HE WOULD FEEL
FREE TO DECIDE AGAINST THE GOVERNMENT IN CASES THAT TO THE COMMON
UNDERSTANDING INVOLVE DISLOYALTY TO THIS COUNTRY.  QUESTIONS OUGHT NOT
TO BE PUT TO PROSPECTIVE JURORS THAT OFFER NO FAIR CHOICE FOR ANSWER. 
MEN OUGHT NOT TO BE ASKED IN EFFECT WHETHER THEY ARE BRAVE OR WHOLLY
INDIFFERENT TO THE ENVELOPING ATMOSPHERE.  THEY SHOULD NOT BE ASKED TO
CONFESS THAT THEY ARE WEAKLINGS NOR SHOULD IT BE ASSUMED THAT THEY ARE
FULLY CONSCIOUS OF ALL THE PRESSURES THAT MAY MOVE THEM.  THEY MAY NOT
KNOW WHAT JUDGES OF CONSIDERABLE FORENSIC EXPERIENCE KNOW, THAT ONE
CANNOT HAVE CONFIDENT KNOWLEDGE OF INFLUENCES THAT MAY PLAY AND PREY
UNCONSCIOUSLY UPON JUDGMENT.  SEE, E.G., MR. JUSTICE OLIVER IN REX V.
DAVIES, (1945) 1 K.B. 435, 445.  THE WELL-KNOWN OBSERVATIONS OF MR.
JUSTICE HOLMES ON THESE PSYCHOLOGICAL INFLUENCES ARE HERE PERTINENT:
"THIS IS NOT A MATTER FOR POLITE PRESUMPTIONS; WE MUST LOOK FACTS IN
THE FACE.  ANY JUDGE WHO HAS SAT WITH JURIES KNOWS THAT IN SPITE OF
FORMS THEY ARE EXTREMELY LIKELY TO BE IMPREGNATED BY THE ENVIRONING
ATMOSPHERE."  FRANK V. MANGUM, 237 U.S. 309, 345, 349.  NOR IS IT
IRRELEVANT TO NOTE THAT WE ARE LIVING IN A TIME WHEN INROADS HAVE BEEN
MADE ON THE SECRECY OF THE JURY ROOM SO THAT, UPON FAILURE TO AGREE,
JURORS ARE SUBJECTED TO HARASSMENT TO DISCLOSE THEIR POSITION IN THE
JURY ROOM.  OUGHT WE TO EXPOSE OUR ADMINISTRATION OF CRIMINAL JUSTICE
TO SITUATIONS WHEREBY FEDERAL EMPLOYEES MUST CONTEMPLATE INQUISITIONS
INTO THE MANNER IN WHICH THEY DISCHARGED THEIR JUROR'S OATH? 

TO CONCLUDE THAT GOVERNMENT EMPLOYEES ARE NOT DISQUALIFIED IN
PROSECUTIONS INHERENTLY TOUCHING THE SECURITY OF THE GOVERNMENT, AT A
TIME WHEN PUBLIC FEELING ON THESE MATTERS IS NOTORIOUSLY RUNNING HIGH,
BECAUSE THEY ARE NOT IPSO FACTO DISQUALIFIED FROM SITTING IN A
PROSECUTION AGAINST A DRUG ADDICT OR A PETTY THIEF, IS TO SAY THAT
THINGS THAT ARE VERY DIFFERENT ARE THE SAME.  THE DOCTRINE OF THE
FRAZIER CASE DOES NOT REQUIRE SUCH DISREGARD OF THE RELEVANT.  TO
RECOGNIZE THE EXISTENCE OF WHAT IS CHARACTERIZED AS A PHOBIA AGAINST A
PARTICULAR GROUP IS NOT TO DISCRIMINATE IN ITS FAVOR.  IF A PARTICULAR
GROUP, NO MATTER WHAT ITS BELIEFS, IS UNDER PRESSURE OF POPULAR
HOSTILITY, EXCLUSION OF POTENTIAL JURORS PECULIARLY SUSCEPTIBLE TO SUCH
PRESSURE IS NOT AN EXPRESSION OF REGARD FOR POLITICAL OPINIONS BUT
RECOGNITION BY LAW OF THE FACTS OF LIFE.  IT DOES NOT FOLLOW THAT
BECAUSE MEMBERS OF DIFFERENT BUT RESPECTED POLITICAL PARTIES CAN SIT IN
JUDGMENT UPON ONE ANOTHER WHERE PUNISHMENT IS INVOLVED, ALL MEMBERS OF
SUCH PARTIES, NO MATTER WHAT THEIR RELATION TO AN OPERATING BIAS, CAN
FREELY AND FAIRLY SIT IN JUDGMENT UPON THOSE BELONGING TO AN OSTRACIZED
GROUP. 

LET THERE BE NO MISUNDERSTANDING.  TO RECOGNIZE THE EXISTENCE OF A
GROUP WHOSE VIEWS ARE FEARED AND DESPISED BY THE COMMUNITY AT LARGE
DOES NOT EVEN REMOTELY IMPLY ANY SUPPORT OF THAT GROUP.  TO TAKE
APPROPRIATE MEASURES IN ORDER TO AVERT INJUSTICE EVEN TOWARDS A MEMBER
OF A DESPISED GROUP IS TO ENFORCE JUSTICE.  IT IS NOT TO PLAY
FAVORITES.  THE BOAST OF OUR CRIMINAL PROCEDURE IS THAT IT PROTECTS AN
ACCUSED, SO FAR AS LEGAL PROCEDURE CAN, FROM A BIAS OPERATING AGAINST
SUCH A GROUP TO WHICH HE BELONGS.  THIS PRINCIPLE SHOULD BE ENFORCED
WHATEVER THE TENETS OF THE GROUP - WHETHER THE OLD LOCOFOCOS OR THE
KNOW-NOTHINGS, THE KU KLUX KLAN OR THE COMMUNISTS.  THIS IS NOT TO
CODDLE COMMUNISTS BUT TO RESPECT OUR PROFESSIONS OF EQUAL JUSTICE TO
ALL.  IT WAS A WISE MAN WHO SAID THAT THERE IS NO GREATER INEQUALITY
THAN THE EQUAL TREATMENT OF UNEQUALS. 

WE ARE CONCERNED WITH SOMETHING FAR MORE IMPORTANT THAN SUSTAINING A
PARTICULAR CONVICTION.  MANY AND CONFLICTING ARE THE CRITERIA BY WHICH
A SOCIETY IS TO BE DEEMED GOOD, BUT PERHAPS NO TEST IS MORE REVEALING
THAN THE CHARACTERISTICS OF ITS PUNITIVE JUSTICE.  NO SINGLE ASPECT OF
OUR SOCIETY IS MORE PRECIOUS AND MORE DISTINCTIVE THAN THAT WE SEEK TO
ADMINISTER CRIMINAL JUSTICE ACCORDING TO MORALLY FASTIDIOUS STANDARDS. 
THESE REVEAL CONFIDENCE IN OUR INSTITUTIONS, RESPECT FOR REASON, AND
LOYALTY TO OUR PROFESSIONS OF FAIRNESS.  THE POWERFUL CLAIM IN BEHALF
OF OUR CIVILIZATION REPRESENTED BY OUR SYSTEM OF CRIMINAL JUSTICE WILL
BE VINDICATED AND STRENGTHENED IF THOSE WHO IN THE POPULAR MIND APPEAR
TO THREATEN THE VERY EXISTENCE OF THE GOVERNMENT ARE TRIED BY CITIZENS
OTHER THAN THOSE IN THE IMMEDIATE EMPLOY OF THE GOVERNMENT AT THE SEAT
OF GOVERNMENT. 
..END :




















UNITED STATES V. U.S. SMELTING CO., 339 U.S. 186 


NO. 173.  ARGUED FEBRUARY 13-14, 1950.  - DECIDED MARCH 27, 1950.  -
REVERSED. 


1.  THE INTERSTATE COMMERCE COMMISSION HAS THE POWER UNDER THE
INTERSTATE COMMERCE ACT TO FIX THE POINT AT WHICH LINE-HAUL OR CARRIER
TRANSPORTATION SERVICE BEGINS AND ENDS.  PP. 190, 193, 197. 

2.  THE CONVENIENT POINTS AT WHICH LINE-HAUL OR CARRIER
TRANSPORTATION SERVICE BEGINS AND ENDS ARE QUESTIONS OF FACT TO BE
DETERMINED BY THE COMMISSION; AND ITS FINDINGS ON THOSE QUESTIONS WILL
NOT BE DISTURBED BY THE COURTS IF SUPPORTED BY SUBSTANTIAL EVIDENCE. 
P. 193. 

3.  IN THIS PROCEEDING, THE COMMISSION'S DETERMINATION OF THE POINTS
AT WHICH LINE-HAUL OR CARRIER TRANSPORTATION SERVICE BEGINS AND ENDS AT
THE SMELTING COMPANIES' PLANTS IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND
MUST BE SUSTAINED.  PP. 188-194. 

4.  WHEN THE COMMISSION HAS DETERMINED THE POINT AT WHICH LINE-HAUL
OR CARRIER TRANSPORTATION SERVICE BEGINS AND ENDS AT A PARTICULAR
PLANT, THE LINE-HAUL CHARGE THEREAFTER MUST BE TO THAT POINT AND NOT TO
A FURTHER POINT FIXED IN A CARRIER TARIFF, SINCE TRANSPORTATION TO THE
LATTER POINT AT THE LINE-HAUL RATE WOULD BE PREFERENTIAL AND WOULD
VIOLATE SEC. 6(7) OF THE INTERSTATE COMMERCE ACT.  PP. 194-197. 

5.  THE CONTENTION THAT TO REQUIRE THE CARRIERS TO CONFORM TO THE
COMMISSION'S ORDERS IN THIS CASE WOULD REQUIRE THE SMELTING COMPANIES
TO PAY TWICE FOR THEIR SERVICES MISCONCEIVES THE SCOPE OF THIS
PROCEEDING, WHICH WAS SOLELY TO DEFINE WHAT IS EMBRACED IN LINE-HAUL
TRANSPORTATION, AND NOT TO DETERMINE WHETHER THE CHARGE MADE FOR THE
SERVICE WAS COMPENSATORY.  PP. 197-198. 

6.  THE COMMISSION HAS AUTHORITY TO EXCLUDE RATE QUESTIONS FROM THIS
PROCEEDING.  P. 198. 

7.  THE FACT THAT THERE WAS NO APPEAL FROM AN EARLIER JUDGMENT OF THE
DISTRICT COURT GRANTING A TEMPORARY INJUNCTION AND REMANDING THE CASE
TO THE COMMISSION (THE COURT HAVING FOUND THAT THERE WAS NO EVIDENCE TO
SUSTAIN A COMMISSION FINDING THAT THE LINE-HAUL RATES WERE NOT
COMPENSATORY FOR THE SERVICES RENDERED) DOES NOT REQUIRE THAT THE
JUDGMENT HERE APPEALED FROM BE AFFIRMED UNDER THE RULE OF "LAW OF THE
CASE," SINCE THE EARLIER JUDGMENT WAS NOT A FINAL JUDGMENT.  PP. 198
199. 

UNITED STATES ET AL. V. UNITED STATES SMELTING REFINING & MINING CO.
ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH. 

IN A SUIT TO ENJOIN THE ENFORCEMENT OF ORDERS OF THE INTERSTATE
COMMERCE COMMISSION, THE DISTRICT COURT HELD THE ORDERS UNLAWFUL AND
PERMANENTLY ENJOINED THEIR ENFORCEMENT.  ON DIRECT APPEAL TO THIS
COURT, REVERSED, P. 199. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE INTERSTATE COMMERCE COMMISSION INSTITUTED THE PROCEEDINGS LEADING
TO THE ORDERS HERE INVOLVED AS ITS SEVENTY-FIFTH AND SEVENTY-SIXTH
SUPPLEMENTAL REPORTS TO EX PARTE 104, PRACTICES OF CARRIERS AFFECTING
OPERATING REVENUES OR EXPENSES, PART II, TERMINAL SERVICES, 209 I.C.C.
11.  THE PROCEEDINGS CONCERNED THE SWITCHING AND SPOTTING SERVICES
RENDERED BY APPELLEE-CARRIERS AT THE GARFIELD AND MURRAY, UTAH, AND
LEADVILLE, COLORADO, PLANTS OF THE AMERICAN SMELTING COMPANY, AND THE
MIDVALE, UTAH, PLANT OF THE UNITED STATES SMELTING COMPANY.  EXTENSIVE
HEARINGS WERE HELD IN THESE SUPPLEMENTAL PROCEEDINGS FOR THE PURPOSE OF
DETERMINING THE RESPECTIVE POINTS AT WHICH THE CARRIERS' LINE-HAUL
TRANSPORTATION SERVICE ENDED AND THE EXTENT OF THE SERVICE THE CARRIERS
MIGHT RENDER IN THE DISCHARGE OF THEIR OBLIGATION TO DELIVER THE
FREIGHT AT THESE FOUR PLANTS. 

IT WILL NOT BE NECESSARY TO DETAIL THE PHYSICAL CHARACTERISTICS OF
EACH OF THE PLANTS INVOLVED HERE.  EACH HAS A RECEIVING YARD OR
INTERCHANGE TRACKS UPON WHICH INCOMING AND OUTGOING FREIGHT IS
SWITCHED.  BEYOND THE INTERCHANGE TRACKS SWITCHING SERVICES ARE
NUMEROUS AND EXTENSIVE WITHIN THE PLANTS.  THE GARFIELD PLANT MAY BE
DESCRIBED AS INDICATIVE OF THE SITUATION AT ALL THE PLANTS.  FN1 THERE,
FROZEN ORE IS HANDLED IN SIX DISTINCT MOVEMENTS.  A LARGE AMOUNT OF
INTRAPLANT SWITCHING IS DONE BY THE CARRIERS.  TO PERFORM THESE
SWITCHING SERVICES AT GARFIELD REQUIRES THREE TRAIN-CREW SHIFTS DAILY. 
IN ONE TWELVE-MONTH PERIOD AT THIS PLANT, 22,982 CARLOADS OF INBOUND
AND 6,960 CARLOADS OF OUTBOUND FREIGHT WERE HANDLED. 

ON OCTOBER 14, 1946, THE COMMISSION ENTERED ITS FIRST ORDERS IN THESE
PROCEEDINGS, ENJOINING APPELLEE-CARRIERS FROM PERFORMING SWITCHING AND
SPOTTING SERVICE IN VIOLATION OF THE INTERSTATE COMMERCE ACT.  ON
PETITION TO THE DISTRICT COURT, A STATUTORY THREE-JUDGE COURT SITTING,
THE ORDERS WERE HELD UNLAWFUL.  THE COURT WAS OF THE OPINION THAT EACH
OF THE COMMISSION'S ORDERS WAS BASED ON THE PREMISE THAT THE LINE-HAUL
RATES DID NOT COVER THE INTRAPLANT SERVICES, AND HELD THAT SUCH A
FINDING WAS NOT SUPPORTED BY THE EVIDENCE.  IN ADDITION, THE COURT
FOUND THAT THE COMMISSION HAD NOT "PRESUMED TO EXERCISE THE AUTHORITY
WHICH IS INTENDED TO BE CONFERRED UNDER EX PARTE 104 IN THAT THE ORDER
MADE IS NOT SPECIFICALLY BASED UPON THAT AUTHORITY."  THE MATTER WAS
REMANDED TO THE COMMISSION "FOR SUCH ACTION AS IT MAY FIND JUSTIFIABLE
IN THE PREMISES," AND THE COMMISSION WAS "TEMPORARILY ENJOINED FROM
REQUIRING ITS FORMAL ORDER TO BE CARRIED INTO FORCE AND EFFECT  ...  "
THE COMMISSION ON REMAND REOPENED THE CASE BUT TOOK NO MORE EVIDENCE. 
IT RESTATED THE GROUND FOR ITS ACTION AND ENTERED CEASE AND DESIST
ORDERS AGAINST THE CARRIERS.  ON PETITION OF THE APPELLEES, THE
DISTRICT COURT AGAIN HELD THE ORDERS UNLAWFUL AND PERMANENTLY ENJOINED
THEIR ENFORCEMENT.  IT IS FROM THIS JUDGMENT THAT THE COMMISSION AND
THE UNITED STATES HAVE APPEALED. 

THE COMMISSION UNDERTOOK ITS GENERAL INVESTIGATION, EX PARTE 104, IN
THE INTEREST OF ESTABLISHING A UNIFORM AND EQUAL SERVICE FOR SHIPPERS. 
THE COMMISSION CONCLUDED THAT CARRIER OBLIGATION FOR TRANSPORTATION
SERVICE ENDS CUSTOMARILY WHEN DELIVERY IS MADE AT A CONVENIENT POINT ON
THE SIDING INSIDE OR OUTSIDE A CONSIGNEE'S PLANT.  THIS DELIVERY IS
SUCH AS MAY BE ACCOMPLISHED IN ONE CONTINUOUS MOVEMENT WITHOUT
"INTERRUPTION" OCCASIONED FOR THE CONVENIENCE OF THE INDUSTRY, AND IS
ONLY THE EQUIVALENT OF TEAM TRACK OR SIMPLE PLACEMENT SWITCHING.  IN
THE COMMISSION'S VIEW AS DEVELOPED IN EX PARTE 104, SUCH A CONVENIENT
DELIVERY POINT MARKS THE BEGINNING AND END OF WHAT IS TERMED "LINE
HAUL" TRANSPORTATION, AND IS THE EXTENT OF THE SERVICE WHICH MAY BE
PERFORMED UNDER THE LINE-HAUL RATE.  THE COMMISSION'S AUTHORITY TO
DETERMINE THE POINT WHERE TRANSPORTATION DUTY ENDS AND INDUSTRY
CONVENIENCE BEGINS WAS UPHELD BY THIS COURT IN UNITED STATES V.
AMERICAN SHEET & TIN PLATE CO., 301 U.S. 402.  WE HAVE REPEATEDLY
SUSTAINED THE COMMISSION IN ITS APPLICATION OF EX PARTE 104 PRINCIPLES
TO PARTICULAR PLANTS WHERE IT HAS PROHIBITED THE PERFORMANCE OF
SERVICES BEYOND THE POINT FIXED UNDER A LINE-HAUL RATE.  FN2  IN
ISSUING CEASE AND DESIST ORDERS IN THESE CASES THE COMMISSION HAS ACTED
PURSUANT TO ITS DUTY TO ENFORCE SEC. 6(7) OF THE INTERSTATE COMMERCE
ACT, WHICH SECTION PROHIBITS DEPARTURE FROM FILED TARIFFS AND THE
RENDERING OF PREFERENTIAL SERVICES.  FN3 

AS STATED, THE PURPOSE OF THESE PROCEEDINGS BEFORE THE COMMISSION WAS
TO DETERMINE THE BEGINNING AND END OF LINE-HAUL SERVICE AT APPELLEE
SMELTERS' PLANTS.  THE NEXT QUESTION WAS WHETHER THE SERVICE RENDERED
BY THE CARRIERS CONFORMED TO THE SERVICES DELIMITED BY THE COMMISSION. 
THUS THE COMMISSION, IN ITS PROCEEDINGS AFTER REMAND, WAS NOT CONCERNED
WITH THE QUESTION OF WHETHER REASONABLE RATES WERE IN FORCE, AS IT
EXPLAINED IN ITS SECOND REPORT IN THE AMERICAN SMELTING COMPANY CASE: 

"THE QUESTION OF THE REASONABLENESS OF PUBLISHED RATES OR OF CHARGES
THAT ARE OR MAY BE FIXED FOR PERFORMING INDUSTRIAL SERVICES CAN BE
DECIDED ONLY IN A PROCEEDING BROUGHT, OR INVESTIGATION INSTITUTED,
UNDER DIFFERENT PROVISIONS OF THE ACT.  IT IS OUR PURPOSE TO MAKE IT
ENTIRELY CLEAR HERE THAT OUR ORDER HEREIN IS BASED SOLELY UPON OUR
FINDINGS HEREIN, WHICH IN TURN ARE BASED SOLELY UPON THE PRINCIPLES AND
AUTHORITY ESTABLISHED WITH THE APPROVAL OF THE SUPREME COURT IN OUR
ORIGINAL AND SUPPLEMENTAL REPORTS IN EX PARTE NO. 104, PART II, AND
THAT SAID ORDER IS NOT BASED IN WHOLE OR IN PART UPON ANY CONCLUSIONS
OR FINDINGS IN CONNECTION WITH TARIFF PROVISIONS OR TESTIMONY AS TO
WHETHER THE PUBLISHED RATES ARE REASONABLE AND DO OR DO NOT INCLUDE
COMPENSATION FOR SWITCHING WITHIN THE PLANT AREAS.  WE HEREBY REPUDIATE
ANY REFERENCE OR CONCLUSION TO THE CONTRARY CONVEYED BY OUR DISCUSSION
OR EVIDENCE RELATIVE TO SUCH QUESTIONS AND THE CONCLUSIONS BASED
THEREON IN OUR PRIOR SUPPLEMENTAL REPORT HEREIN."  270 I.C.C. AT 362. 

WITH THAT CLEAR AND DISTINCT STATEMENT OF WHAT IT WAS DOING AND WHAT
IT WAS NOT DOING, THE COMMISSION MADE ITS FINDINGS OF FACT WHICH APPEAR
IN THE MARGIN.  FN4  THE ESSENTIAL PART OF THE FINDINGS IS THAT LINE
HAUL BEGAN AND ENDED AT THE INTERCHANGE TRACKS, KNOWN AS "ASSEMBLY
YARD" AT MIDVALE, THE PLANT OF UNITED STATES SMELTING, AND THE "PLANT
YARD" AT GARFIELD, "HOLD TRACKS" AT MURRAY, AND "FLAT YARD" AT
LEADVILLE, THE PLANTS OF AMERICAN SMELTING; THAT ALL SERVICES BEYOND
THESE POINTS WERE EXCESS SERVICES NOT REQUIRED OF THE CARRIER AS PART
OF ITS LINE-HAUL CARRIAGE; AND THAT THE PERFORMANCE OF SERVICES BEYOND
THESE POINTS WITHOUT COMPENSATORY CHARGES RESULTS IN PREFERENTIAL
SERVICE IN VIOLATION OF SEC. 6(7). 

THAT THE COMMISSION IS AUTHORIZED TO ESTABLISH THE POINT WHERE LINE
HAUL SERVICE BEGINS AND ENDS IS NOT TO BE DOUBTED.  THE QUESTION, IN
REVIEWING THE COMMISSION'S DETERMINATION OF THE CONVENIENT POINTS AT
WHICH LINE-HAUL OR CARRIER TRANSPORTATION SERVICE BEGINS AND ENDS, IS
WHETHER SUCH DETERMINATION IS SUPPORTED BY SUBSTANTIAL EVIDENCE,  FN5
AS THIS COURT SAID IN UNITED STATES V. WABASH R. CO., 321 U.S. 403,
408: 

"IN SUSTAINING THE COMMISSION'S FINDINGS IN THESE PROCEEDINGS, AS IN
RELATED CASES, THIS COURT HAS HELD THAT THE POINT IN TIME AND SPACE AT
WHICH THE CARRIER'S TRANSPORTATION SERVICE ENDS IS A QUESTION OF FACT
TO BE DETERMINED BY THE COMMISSION AND NOT THE COURTS, AND THAT ITS
FINDINGS ON THAT QUESTION WILL NOT BE DISTURBED BY THE COURTS IF
SUPPORTED BY EVIDENCE." 

IN THE INSTANT CASE THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE
COMMISSION'S FINDINGS THAT THE CONVENIENT POINTS FOR THE BEGINNING AND
END OF LINE-HAUL WERE AT THE INTERCHANGE TRACKS, MORE SPECIFICALLY
CHARACTERIZED ABOVE.  THE COMMISSION HAD BEFORE IT THE EXTENSIVE RECORD
OF THE BASIC PROCEEDING, WHICH THE DISTRICT COURT DID NOT HAVE,
TOGETHER WITH THE INSTANT SUPPLEMENTAL PROCEEDINGS.  THE COMMISSION'S
FINDINGS WERE BASED IN PART ON THE TESTIMONY OF ITS EXPERTS WHO HAD
MADE PERSONAL SURVEYS AND OBSERVATIONS OF SWITCHING AND CAR MOVEMENTS
AT THESE PLANTS.  IT IS APPARENT FROM THE RECORD THAT EXTENSIVE
INTRAPLANT SERVICES WERE PERFORMED ON INSTRUCTIONS OF AND FOR THE
CONVENIENCE OF THE APPELLEE-SMELTERS.  WHEN A CAR IS FOLLOWED THROUGH
ITS INTRAPLANT MOVEMENTS ON A MAP, IT IS DEMONSTRATED THAT EXTENSIVE
SERVICES WERE PERFORMED IN EXCESS OF THOSE WHICH WERE ESTABLISHED AS
THE PERMISSIBLE LIMIT OF LINE-HAUL IN EX PARTE 104.  THE COMMISSION'S
DESIGNATION OF THE CONVENIENT DELIVERY POINTS AT EACH OF THESE PLANTS
MUST BE SUSTAINED. 

THE CONTENTION OF APPELLEES IS THAT THERE ARE NOW IN EFFECT TARIFFS
THAT COMPENSATE FOR LINE-HAUL AND PLANT SERVICES.  THESE TARIFFS WILL
BE SEPARATELY DISCUSSED BELOW.  APPELLEES URGE THAT THE CARRIERS CANNOT
BE GUILTY OF VIOLATING SEC. 6(7) WHEN THEY ARE FULLY COMPENSATED FOR
CARRIER SERVICES IN LINE-HAUL AND PLANT SERVICES BEYOND THAT, SINCE THE
SMELTERS DO NOT THEN RECEIVE A PREFERENTIAL SERVICE NOT ACCORDED TO
SHIPPERS GENERALLY.  THE COROLLARY OF THIS CONTENTION IS THAT TO
REQUIRE PAYMENT FOR THE PLANT SERVICES IN ADDITION TO THE LINE-HAUL
RATES, IN ACCORDANCE WITH THE COMMISSION'S ORDERS, WOULD BE TO REQUIRE
THE SMELTERS TO PAY TWICE FOR THE SERVICES. 

THIS COURT HAS EMPHASIZED THAT THE PREFERENCE INVOLVED IN THESE
PROCEEDINGS IS BASED UPON AN APPLICATION OF THE STANDARDS DERIVED FROM
EX PARTE 104 TO THE UNIQUE CONDITIONS AT PARTICULAR PLANTS, A
PREFERENCE NECESSARILY RESULTING WHEN A SERVICE IS RENDERED "IN EXCESS
OF THAT WHICH THE CARRIERS ARE OBLIGED TO PERFORM BY THEIR TARIFFS." 
UNITED STATES V. WABASH R. CO., SUPRA, 412, 413.  IN CORN PRODUCTS
REFINING CO. V. UNITED STATES, 331 U.S. 790, THIS COURT AFFIRMED PER
CURIAM A DECISION UPHOLDING THE EXCLUSION, ON GROUNDS OF IRRELEVANCY,
OF EVIDENCE PERTAINING TO THE CUSTOM AND PRACTICE OF CARRIERS IN MAKING
DELIVERY TO OTHER SHIPPERS.  IF CUSTOM MAY NOT BE USED TO INTERPRET
"LINE-HAUL" AFTER DEMARCATION OF TRANSPORTATION AND INDUSTRY SERVICE BY
THE COMMISSION, WE THINK IT FOLLOWS THAT A CARRIER DEFINITION WRITTEN
INTO FILED TARIFFS DOES NOT MAKE IMPOTENT THE COMMISSION'S AUTHORITY TO
DEFINE THE POINT. 

A TARIFF, EFFECTIVE JUNE 25, 1938, IS CONSIDERED APPLICABLE ONLY TO
THE MIDVALE, GARFIELD, AND MURRAY PLANTS.  BY THIS TARIFF THE "LINE
HAUL RATE INCLUDES MOVEMENT OF LOADED CARS TO TRACK SCALES AND
SUBSEQUENT DELIVERY TO ANY DESIGNATED TRACK WITHIN THE PLANT WHICH CAN
BE ACCOMPLISHED BY ONE UNINTERRUPTED MOVEMENT  ...  FROM THE ROAD-HAUL
POINT OF DELIVERY TO THE SWITCHING LINE."  FN6  266 I.C.C. AT 353-354. 
THERE ARE ADDITIONAL CHARGES FOR OTHER SERVICES IN THE PLANTS. 

IF THE COMMISSION HAS THE AUTHORITY TO FIX THE POINT AT WHICH LINE
HAUL BEGINS AND ENDS, AND WE HAVE HELD THAT IT HAS, AND IT DESIGNATES
POINT X, OBVIOUSLY THE CARRIERS CANNOT BY TARIFF FIX LINE-HAUL AT POINT
Y, A FURTHER POINT, AND EVEN ADD ONE SUBSEQUENT MOVEMENT.  THAT WOULD
DEPRIVE THE COMMISSION OF ITS RIGHT TO DETERMINE THE POINT.  IN THE
COMMISSION'S JUDGMENT, WHICH IS SUPPORTED BY THE EVIDENCE, DELIVERY TO
POINT X IS THE EQUIVALENT OF TEAM TRACK AND SIMPLE PLACEMENT SERVICE -
THE SERVICE OTHER SHIPPERS RECEIVE UNDER A LINE-HAUL RATE.  FOR THE
CARRIERS TO GIVE THE APPELLEE-SMELTERS SERVICE TO POINT Y PLUS 1 IS TO
ACCORD THEM SERVICE DIFFERENT FROM THAT GIVEN OTHER SHIPPERS UNDER EX
PARTE 104 AND SUPPLEMENTAL PROCEEDINGS.  BY THE ORDERS IN THE INSTANT
CASES, LINE-HAUL IS TRANSLATED, AS IT WERE, INTO THE TARIFFS AS
BEGINNING AND ENDING WHERE THE COMMISSION FIXED IT AND NOT WHERE THE
APPELLEE-CARRIERS FIXED IT BY TARIFF.  THEREAFTER, THE CHARGE FOR LINE
HAUL MUST BE TO THE INTERCHANGE TRACKS AND NOT TO THE POINT FIXED IN
THE TARIFF.  TRANSPORTATION TO THE LATTER POINT AT THE LINE-HAUL RATE
WOULD BE PREFERENTIAL AND WOULD VIOLATE SEC. 6(7). 

THE TARIFF WHICH IS CONSIDERED BY APPELLEE-CARRIERS AS APPLICABLE
ONLY TO THE LEADVILLE PLANT IS SET FORTH IN THE MARGIN.  FN7  IT MAY BE
NOTED THAT THIS TARIFF DOES NOT PROVIDE, AS DOES THE 1938 TARIFF
APPLICABLE TO THE OTHER PLANTS, THAT THE LINE-HAUL RATE INCLUDES THE
INTRAPLANT SERVICES.  FURTHER, THE "MOVEMENT" SPECIFIED IN DELIVERY OF
A LINE-HAUL SHIPMENT INCLUDES NOT JUST ONE, AS PROVIDED BY THE 1938
TARIFF, BUT SEVERAL SWITCHING OPERATIONS WHICH THE COMMISSION HAS
CLASSIFIED AS "INTERRUPTED" TERMINAL SWITCHING SERVICES, PERFORMED FOR
THE CONVENIENCE OF THE INDUSTRY ONLY. 

THE COMMISSION HAS FIXED THE POINT AT WHICH LINE-HAUL OR
TRANSPORTATION SERVICE ENDS AS THE "FLAT YARD" AT LEADVILLE AND FINDS
THERE ARE SERVICES PERFORMED BEYOND THIS POINT.  THESE INDUSTRY
SERVICES MUST BE SO COMPENSATED FOR, AND MAY NOT BE WRAPPED UP IN
DELIVERY OF A LINE-HAUL SHIPMENT.    "SINCE THE COMMISSION FINDS THAT
THE CARRIERS' SERVICE OF TRANSPORTATION IS COMPLETE UPON DELIVERY TO
THE INDUSTRIES' INTERCHANGE TRACKS, AND THAT SPOTTING WITHIN THE PLANTS
IS NOT INCLUDED IN THE SERVICE FOR WHICH THE LINE-HAUL RATES WERE
FIXED, THERE IS POWER TO ENJOIN THE PERFORMANCE OF THAT ADDITIONAL
SERVICE OR THE MAKING OF AN ALLOWANCE TO THE INDUSTRY WHICH PERFORMS
IT."  UNITED STATES V. AMERICAN SHEET & TIN PLATE CO., 301 U.S. 402,
408. 

OBVIOUSLY THE PLANT SERVICES AT LEADVILLE ARE DIFFERENT FROM THOSE AT
MIDVALE, GARFIELD, AND MURRAY UNDER THE 1938 TARIFF, WHICH ONLY
EMPHASIZES THE WISDOM OF CONGRESS IN EMPOWERING THE COMMISSION TO FIX
THE POINT WHERE LINE-HAUL BEGINS AND ENDS WITH A VIEW TO GIVING ALL
SHIPPERS EQUIVALENT SERVICE.  THE COMMISSION HAS STANDARDIZED SUCH
SERVICE AS TEAM TRACK OR SIMPLE PLACEMENT SWITCHING.  WHAT WE NOW HOLD
IS THAT THE COMMISSION HAS THE POWER TO FIX THE POINT AT WHICH LINE
HAUL OR CARRIER SERVICE BEGINS AND ENDS.  THIS IS NECESSARY BECAUSE THE
NEED FOR SWITCHING VARIES FROM PLANT TO PLANT; INDEED, SOME PLANTS MAY
NEED NO INTRAPLANT SWITCHING SERVICE.  THUS, UNLESS THE COMMISSION CAN
FIX THE BEGINNING AND ENDING POINT OF THE LINE-HAUL, SOME SHIPPERS
WOULD PAY AN IDENTICAL LINE-HAUL RATE FOR LESS SERVICE THAN THAT
REQUIRED BY OTHER INDUSTRIAL PLANTS.  SEE BALTIMORE & OHIO R. CO. V.
UNITED STATES, 305 U.S. 507, 526.  A DIFFERENT POINT FIXED BY THE
CARRIER IN ITS TARIFF GIVES SERVICE IN EXCESS OF THAT ACCORDED SHIPPERS
GENERALLY AS ESTABLISHED IN EX PARTE 104, AND THEREFORE AMOUNTS TO AN
UNLAWFUL PREFERENTIAL SERVICE. 

AS TO THE ARGUMENT THAT TO REQUIRE THE CARRIERS TO CONFORM TO THE
COMMISSION'S ORDERS WOULD REQUIRE THE APPELLEE-SMELTERS TO PAY TWICE
FOR THEIR SERVICE, THE SHORT ANSWER IS THAT APPELLEES MISCONCEIVE THE
SCOPE OF THIS PROCEEDING, WHICH IS SOLELY TO DEFINE WHAT IS EMBRACED IN
LINE-HAUL TRANSPORTATION.  WE ACCEPT THE ADMONITION OF THE COMMISSION
IN ITS SECOND REPORT, QUOTED SUPRA, AND REITERATED IN ITS BRIEF, THAT
IT WAS NOT HERE CONCERNED, AND MADE NO FINDING, AS TO WHETHER THE
CHARGE MADE FOR THE SERVICE WAS OR WAS NOT COMPENSATORY.  WE THINK THAT
THE COMMISSION HAS AUTHORITY TO EXCLUDE RATE QUESTIONS FROM THIS
PROCEEDING.  IF THE CARRIERS SO WISH, THEY MAY FILE A NEW TARIFF TO
CONFORM THEIR CHARGES TO THE SERVICES INDICATED IN THE COMMISSION'S
ORDER.  49 U.S.C. SEC. 6(1) AND (3).  IF THE CARRIER MAKES A DOUBLE OR
UNREASONABLE CHARGE, THE INDUSTRY MAY BE HEARD UPON THE REASONABLENESS
OF THE RATE.  49 U.S.C. SECS. 9, 13, 15. 

FINALLY IT IS CONTENDED THAT THE DISTRICT COURT JUDGMENT SHOULD BE
AFFIRMED BECAUSE THERE WAS NO APPEAL FROM THE JUDGMENT AND MANDATE WHEN
THE CASE WAS SENT BACK TO THE COMMISSION, THE COURT HAVING FOUND THAT
THERE WAS NO EVIDENCE TO SUSTAIN A COMMISSION FINDING THAT THE LINE
HAUL RATES WERE NOT COMPENSATORY FOR THE SERVICES RENDERED.  APPELLEES
ARGUE THAT THAT DECISION BECAME THE LAW OF THE CASE. 

THE RULE OF THE LAW OF THE CASE IS A RULE OF PRACTICE, BASED UPON
SOUND POLICY THAT WHEN AN ISSUE IS ONCE LITIGATED AND DECIDED, THAT
SHOULD BE THE END OF THE MATTER.  MESSENGER V. ANDERSON, 225 U.S. 436,
444; INSURANCE GROUP V. DENVER & R.G.W.R. CO., 329 U.S. 607, 612.  IT
IS NOT APPLICABLE HERE BECAUSE WHEN THE CASE WAS FIRST REMANDED,
NOTHING WAS FINALLY DECIDED.  THE WHOLE PROCEEDING THEREAFTER WAS IN
FIERI.  THE COMMISSION HAD A RIGHT ON RECONSIDERATION TO MAKE A NEW
RECORD.  FORD MOTOR CO. V. LABOR BOARD, 305 U.S. 364, 374-75.  WHEN
FINALLY DECIDED, ALL QUESTIONS WERE STILL OPEN AND COULD BE PRESENTED. 
THE FACT THAT AN APPEAL COULD HAVE BEEN TAKEN FROM THE FIRST ORDER OF
THE DISTRICT COURT WAS NOT BECAUSE IT WAS A FINAL ADJUDICATION BUT
BECAUSE A TEMPORARY INJUNCTION HAD BEEN GRANTED IN ORDER TO MAINTAIN
THE STATUS QUO.  THIS WAS AN INTERLOCUTORY ORDER THAT WAS APPEALABLE
BECAUSE CONGRESS, NOTWITHSTANDING ITS INTERLOCUTORY CHARACTER, HAD MADE
IT APPEALABLE.  28 U.S.C. SEC. 1253.  THE APPELLANTS MIGHT HAVE
APPEALED, BUT THEY WERE NOT BOUND TO.  WE THINK THAT IT REQUIRES A
FINAL JUDGMENT TO SUSTAIN THE APPLICATION OF THE RULE OF THE LAW OF THE
CASE JUST AS IT DOES FOR THE KINDRED RULE OF RES JUDICATA.  COMPARE
UNITED STATES V. WALLACE CO., 336 U.S. 793, 800-801.  AND ALTHOUGH THE
LATTER IS A UNIFORM RULE, THE "LAW OF THE CASE" IS ONLY A DISCRETIONARY
RULE OF PRACTICE.  IT IS NOT CONTROLLING HERE.  SEE SOUTHERN R. CO. V.
CLIFT, 260 U.S. 316, 319.  JUDGMENT REVERSED. 

FN1  THE PLANTS ARE DESCRIBED IN DETAIL BY THE COMMISSION IN ITS
REPORTS, 263 I.C.C. 749, 266 I.C.C. 476, 270 I.C.C. 385; 263 I.C.C.
719, 266 I.C.C. 349, 270 I.C.C. 359. 

FN2  CORN PRODUCTS REFINING CO. V. UNITED STATES, 331 U.S. 790; HANNA
FURNACE CORP. V. UNITED STATES, 323 U.S. 667; UNITED STATES V. WABASH
R. CO., 321 U.S. 403; UNITED STATES V. PAN AMERICAN PETROLEUM CORP.,
304 U.S. 156; A.O. SMITH CORP. V. UNITED STATES, 301 U.S. 669; GOODMAN
LUMBER CO. V. UNITED STATES, 301 U.S. 669. 

FN3  "NO CARRIER, UNLESS OTHERWISE PROVIDED BY THIS CHAPTER, SHALL
ENGAGE OR PARTICIPATE IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY,
AS DEFINED IN THIS CHAPTER, UNLESS THE RATES, FARES, AND CHARGES UPON
WHICH THE SAME ARE TRANSPORTED BY SAID CARRIER HAVE BEEN FILED AND
PUBLISHED IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER; NOR SHALL
ANY CARRIER CHARGE OR DEMAND OR COLLECT OR RECEIVE A GREATER OR LESS OR
DIFFERENT COMPENSATION FOR SUCH TRANSPORTATION OF PASSENGERS OR
PROPERTY, OR FOR ANY SERVICE IN CONNECTION THEREWITH, BETWEEN THE
POINTS NAMED IN SUCH TARIFFS THAN THE RATES, FARES, AND CHARGES WHICH
ARE SPECIFIED IN THE TARIFF FILED AND IN EFFECT AT THE TIME; NOR SHALL
ANY CARRIER REFUND OR REMIT IN ANY MANNER OR BY ANY DEVICE ANY PORTION
OF THE RATES, FARES, AND CHARGES SO SPECIFIED, NOR EXTEND TO ANY
SHIPPER OR PERSON ANY PRIVILEGES OR FACILITIES IN THE TRANSPORTATION OF
PASSENGERS OR PROPERTY, EXCEPT SUCH AS ARE SPECIFIED IN SUCH TARIFFS." 
24 STAT. 379, AS AMENDED, 49 U.S.C. SEC. 6(7). 

FN4  THE FOLLOWING WERE THE FINDINGS OF FACT RELATING TO THE
GARFIELD, MURRAY AND LEADVILLE PLANTS OF AMERICAN SMELTING.  THE
FINDINGS WITH RESPECT TO THE MIDVALE PLANT OF UNITED STATES SMELTING
WERE SUBSTANTIALLY IDENTICAL. 

"(1)  THAT IT IS THE DUTY AND OBLIGATION OF THE SMELTERS TO OBTAIN
AND CERTIFY TO THE CARRIERS THE VALUES OF ORES FOR THE PURPOSE OF
ASCERTAINING FREIGHT CHARGES, AND THAT THE CARRIERS ARE NOT UNDER ANY
OBLIGATION OR DUTY TO PERFORM ANY SWITCHING OR OTHER SERVICES FOR THE
PURPOSE OF ASCERTAINING, OR ASSISTING THE SMELTERS IN ASCERTAINING,
SUCH VALUES. 

"(2)  THAT THE 'PLANT YARD' AT THE GARFIELD PLANT, THE 'HOLD TRACKS'
AT THE MURRAY PLANT, AND THE 'FLAT YARD' AT THE LEADVILLE PLANT,
HEREINAFTER REFERRED TO COLLECTIVELY AS THE 'CONVENIENT POINTS' AS
DESCRIBED IN THE PRIOR SUPPLEMENTAL REPORTS HEREIN, ARE REASONABLY
CONVENIENT POINTS FOR THE DELIVERY AND RECEIPT OF CARLOAD TRAFFIC
MOVING TO AND FROM THE PLANTS OF THE AMERICAN SMELTING & REFINING
COMPANY. 

"(3)  THAT THE SEVERAL RESPONDENTS SERVING SAID PLANTS MOVE LOADED
AND EMPTY FREIGHT CARS FROM SAID CONVENIENT POINTS TO POINTS WITHIN THE
PLANT AREAS, FROM SUCH POINTS WITHIN THE PLANT AREAS TO THE CONVENIENT
POINTS, AND BETWEEN POINTS WITHIN THE PLANT AREAS. 

"(4)  THAT THE SAID SERVICES RENDERED WITHIN THE PLANT AREAS TO AND
FROM THE CONVENIENT POINTS ARE IN EXCESS OF THOSE RENDERED SHIPPERS
GENERALLY IN THE RECEIPT AND DELIVERY OF TRAFFIC ON TEAM TRACKS OR
INDUSTRIAL SIDINGS OR SPURS. 

"(5)  THAT THE SAID SERVICES RENDERED BETWEEN POINTS WITHIN THE PLANT
AREAS ARE IN EXCESS OF THOSE RENDERED SHIPPERS GENERALLY IN THE RECEIPT
AND DELIVERY OF TRAFFIC ON TEAM TRACKS OR INDUSTRIAL SIDINGS OR SPURS. 

"(6)  THAT THE SERVICES FROM AND TO THE CONVENIENT POINTS AND BETWEEN
POINTS WITHIN THE PLANT AREAS ARE NOT AND CANNOT BE PERFORMED IN A
CONTINUOUS MOVEMENT WITHOUT INTERRUPTION OR INTERFERENCE AT
RESPONDENTS' OPERATING CONVENIENCE BECAUSE OF THE DISABILITIES OF THE
PLANTS, INCLUDING THE MANNER IN WHICH THE INDUSTRIAL OPERATIONS ARE
CONDUCTED, ALL AS EXPLAINED IN THE PRIOR SUPPLEMENTAL REPORTS. 

"(7)  THAT THE SAID SERVICES RENDERED BETWEEN THE CONVENIENT POINTS
AND POINTS IN THE PLANT AREAS AND BETWEEN POINTS WITHIN THE PLANT AREAS
ARE IN EXCESS OF THOSE PERFORMED IN SIMPLE SWITCHING AND TEAM-TRACK
DELIVERY AND ARE INDUSTRIAL OR PLANT SERVICES WHICH RESPONDENTS ARE NOT
OBLIGATED TO AND SHOULD NOT PERFORM AT THE LINE-HAUL RATES. 

"(8)  THAT THE COMMON-CARRIER TRANSPORTATION WHICH RESPONDENTS ARE
OBLIGATED TO PERFORM BEGINS AND ENDS AT THE CONVENIENT POINTS, AND THAT
ALL SERVICES BEYOND THOSE POINTS IN THE PLANT AREAS ARE INDUSTRIAL OR
PLANT SERVICES FOR WHICH RESPONDENTS SHOULD MAKE REASONABLY
COMPENSATORY CHARGES. 

"(9)  THAT THE PERFORMANCE BY RESPONDENTS WITHOUT REASONABLY
COMPENSATORY CHARGES IN ADDITION TO THE LINE-HAUL RATES OF THE
DESCRIBED SERVICES WITHIN THE PLANT AREAS BEYOND THE CONVENIENT POINTS
AT ANY AND ALL OF THE SAID PLANTS RESULTS IN THE AMERICAN SMELTING &
REFINING COMPANY RECEIVING A PREFERENTIAL SERVICE NOT ACCORDED SHIPPERS
GENERALLY AND RESULTS IN THE REFUNDING OR REMITTING OF A PORTION OF THE
RATES AND CHARGES COLLECTED IN VIOLATION OF SECTION 6(7) OF THE ACT." 
ID., AT 367-368. 

FN5  SEE INTERSTATE COMMERCE COMMISSION V. HOBOKEN MANUFACTURERS' R.
CO., 320 U.S. 368, 378; UNITED STATES V. PAN AMERICAN PETROLEUM CORP.,
304 U.S. 156, 158; UNITED STATES V. AMERICAN SHEET & TIN PLATE CO., 301
U.S. 402, 408, 409. 

FN6  AN "UNINTERRUPTED MOVEMENT" IS DEFINED IN THE TARIFF AS "ONE
CONTINUOUS MOVEMENT OF SWITCHING LOCOMOTIVE AND CREW WITHOUT
INTERRUPTION, RESULTING FROM ORDERS FROM, OR REQUIREMENTS OF, THE
SMELTER." 

FN7  THIS TARIFF IS ALMOST IDENTICAL WITH THAT WHICH WAS APPLICABLE
TO ALL OF THE PLANTS IN 1920.  THE SMELTERS, WE ARE INFORMED, PAY THE
1938 TARIFF UNDER PROTEST, AND INSIST UPON THE 1920 TARIFF. 

      "DELIVERY OF LINE-HAUL CARLOAD SHIPMENT DESTINED TO SMELTER

     AT LEADVILLE, COLO. 

"DELIVERY OF A LINE-HAUL CARLOAD SHIPMENT DESTINED TO SMELTER AT
LEADVILLE, COLO., WILL INCLUDE MOVEMENT WITHIN SMELTER PLANT OVER TRACK
SCALES, TO AND FROM THAW-HOUSE, TO AND FROM A SMELTER SAMPLER OR TO AND
FROM A COMBINATION SAMPLER AND CONCENTRATOR TO A DESIGNATED UNLOADING
POINT INDICATED BY THE SAMPLING COMPANY." 

MR. JUSTICE JACKSON DISSENTS. 

MR. CHIEF JUSTICE VINSON AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :


















UNITED STATES V. BURNISON, 339 U.S. 87 


ARGUED DECEMBER 13, 1949.  - DECIDED MARCH 13, 1950.  - 33 CAL.2D 638,
647, 204 P.2D 330, 335, AFFIRMED. 


HIGHEST COURT OF THE STATE, PREVENTS A CALIFORNIA DOMICILIARY FROM
MAKING AN UNRESTRICTED TESTAMENTARY GIFT TO THE UNITED STATES OF
PROPERTY, REAL OR PERSONAL, LOCATED WITHIN THE STATE, ALTHOUGH SUCH A
GIFT MAY BE MADE TO THE STATE, ITS COUNTIES OR MUNICIPAL CORPORATIONS. 
HELD: 

1.  THE CONSTRUCTION OF THE SECTION BY THE HIGHEST COURT OF THE STATE
IS BINDING HERE, BUT THE QUESTION OF ITS VALIDITY UNDER THE FEDERAL
CONSTITUTION IS FOR THIS COURT TO DETERMINE.  P. 89. 

2.  THE SECTION, AS CONSTRUED, DOES NOT VIOLATE THE SUPREMACY CLAUSE
OF THE FEDERAL CONSTITUTION.  PP. 90-93. 

(A)  THE POWER OF THE UNITED STATES TO RECEIVE TESTAMENTARY GIFTS
DOES NOT PRECLUDE A STATE FROM DENYING A TESTATOR THE RIGHT TO WILL HIS
PROPERTY TO THE UNITED STATES.  UNITED STATES V. FOX, 94 U.S. 315.  PP.
90-93. 

(B)  THE TENTH AMENDMENT RESERVES TO THE STATES THE POWER TO DETERMINE
THE MANNER OF TESTAMENTARY TRANSFER OF A DOMICILIARY'S PROPERTY AND THE
POWER TO DETERMINE WHO MAY BE MADE BENEFICIARIES.  PP. 91-93. 

(C)  IN THE DETERMINATION OF THE QUESTION HERE INVOLVED, NO
DISTINCTION IS TO BE DRAWN BETWEEN REALTY AND PERSONALTY.  P. 93. 

3.  THE SECTION, AS CONSTRUED, DOES NOT DISCRIMINATE AGAINST THE
UNITED STATES IN VIOLATION OF THE FEDERAL CONSTITUTION.  PP. 93-95. 

(A)  DECISIONS UPHOLDING THE RIGHT OF PERSONS TO SUE IN STATE COURTS
ON FEDERALLY CREATED RIGHTS ARE NOT IN POINT HERE.  PP. 93-94. 

(B)  ASSUMING THAT THE UNITED STATES IS PROTECTED BY THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, THE SECTION IS
NEVERTHELESS JUSTIFIED BY THE STATE'S CLOSE RELATIONSHIP TO ITS
RESIDENTS AND THEIR PROPERTY.  P. 95. 

UNITED STATES V. BURNISON ET AL. 

NO. 171.  APPEAL FROM THE SUPREME COURT OF CALIFORNIA* . 

*TOGETHER WITH NO. 188, UNITED STATES V. GAYETTY ET AL., ALSO ON
APPEAL FROM THE SAME COURT. 

THE SUPREME COURT OF CALIFORNIA HELD VOID UNDER STATE LAW CERTAIN
TESTAMENTARY GIFTS TO THE UNITED STATES AND DIRECTED THAT THE PROPERTY
BE DISTRIBUTED TO THE STATUTORY HEIRS OF EACH DECEDENT.  33 CAL.2D 638,
647, 204 P.2D 330, 335.  ON APPEAL TO THIS COURT, AFFIRMED, P. 95. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS INVOLVE THE POWER OF THE CALIFORNIA SUPREME COURT TO
DECLARE INVALID TESTAMENTARY DISPOSITIONS TO THE UNITED STATES BY TWO
CALIFORNIA RESIDENTS.  THE BEQUEST TO THE UNITED STATES IN NO. 171
INCLUDED ONLY PERSONAL PROPERTY; IN NO. 188 THE UNITED STATES WAS
DESIGNATED TO RECEIVE BOTH REAL PROPERTY AND UNITED STATES BONDS.  THE
SITUS OF ALL THE PROPERTY IS ASSUMED TO BE CALIFORNIA.  AFTER
APPROPRIATE PROCEDURAL STEPS, THE CALIFORNIA SUPREME COURT HELD VOID
THESE TESTAMENTARY GIFTS AND DIRECTED THAT THEY BE DISTRIBUTED TO THE
STATUTORY HEIRS OF EACH DECEDENT.  FN1  THE TWO CASES WERE CONSOLIDATED
FOR ARGUMENT BELOW AND WILL BE CONSIDERED HERE IN ONE OPINION. 

THE CALIFORNIA COURT CONSTRUED SEC. 27 OF THE CALIFORNIA PROBATE CODE
FN2  TO PREVENT A CALIFORNIA DOMICILIARY FROM MAKING AN UNRESTRICTED
TESTAMENTARY GIFT TO THE UNITED STATES, ALTHOUGH SUCH A GIFT MAY BE
MADE TO CALIFORNIA, ITS COUNTIES AND MUNICIPAL CORPORATIONS.  FN3  THE
COURT ARRIVED AT THIS INTERPRETATION DESPITE THE CONTENTION OF THE
UNITED STATES THAT IT WOULD RAISE SERIOUS CONSTITUTIONAL QUESTIONS. 
THE CONSTRUCTION OF THE CALIFORNIA CODE BY THE CALIFORNIA SUPREME COURT
IS, OF COURSE, BINDING ON US.  IT LEAVES US, HOWEVER, WITH THE FEDERAL
CONSTITUTIONAL QUESTIONS THAT THE UNITED STATES URGED THE CALIFORNIA
COURT TO AVOID. 

IN THESE APPEALS THE UNITED STATES MAKES TWO CONTENTIONS.  IT URGES
THAT THE CALIFORNIA CODE, AS INTERPRETED, VIOLATES THE SUPREMACY CLAUSE
OF THE CONSTITUTION IN THAT IT INFRINGES UPON THE "INHERENT SOVEREIGN
POWER" OF THE UNITED STATES TO RECEIVE TESTAMENTARY GIFTS. 
ALTERNATIVELY IT ARGUES THAT THE CODE EFFECTS AN UNCONSTITUTIONAL
DISCRIMINATION AGAINST THE NATIONAL GOVERNMENT, SINCE A TESTAMENTARY
GIFT MAY BE MADE BY A CALIFORNIAN TO CALIFORNIA, BUT MAY NOT BE MADE TO
THE UNITED STATES. 

WE HAVE NO DOUBT THAT THE RECEIPT OF GIFTS, TESTAMENTARY AND
NONTESTAMENTARY, IS WITHIN THE AMBIT OF FEDERAL POWERS.  UNINTERRUPTED
USAGE FROM THE FOUNDATION OF THE GOVERNMENT HAS SANCTIONED IT.  THE
FIRST QUESTION HERE, THEREFORE, IS WHETHER THE POWER TO RECEIVE
TESTAMENTARY GIFTS REACHES SO FAR AS TO FORBID A STATE TO DENY A
TESTATOR THE RIGHT TO WILL HIS PROPERTY TO THE UNITED STATES. 

TO ANSWER THIS QUESTION AFFIRMATIVELY WOULD REQUIRE US TO OVERRULE
UNITED STATES V. FOX, 94 U.S. 315, DECIDED AT THE 1876 TERM BY A
UNANIMOUS COURT AND FREQUENTLY CITED WITH APPROVAL.  A DEVISE OF NEW
YORK REALTY TO THE UNITED STATES HAD BEEN HELD VOID BY THE COURT OF
APPEALS  FN4 UNDER A NEW YORK STATUTE THAT DECLARED LAND IN NEW YORK
COULD BE DEVISED ONLY TO NATURAL PERSONS AND SUCH CORPORATIONS AS NEW
YORK HAD EXPRESSLY AUTHORIZED TO TAKE BY DEVISE.  ALTHOUGH IT WAS NOT
SPECIFICALLY URGED THAT THE SUPREMACY CLAUSE PRECLUDES A STATE'S
INTERFERENCE WITH THE POWER OF THE UNITED STATES TO RECEIVE
TESTAMENTARY GIFTS, THIS POINT WAS NECESSARILY INVOLVED IN THE UNITED
STATES' ARGUMENT THAT THE NEW YORK PROHIBITION VIOLATED AN ESSENTIAL
ATTRIBUTE OF NATIONAL SOVEREIGNTY - THE RIGHT TO ACQUIRE PROPERTY BY
ALL METHODS KNOWN TO THE LAW.  IN AFFIRMING, THIS COURT HELD THAT THE
POWER TO CONTROL DEVISES OF PROPERTY WAS IN THE STATE, AND THAT
THEREFORE A PERSON MUST "DEVISE HIS LANDS IN THAT STATE WITHIN THE
LIMITATIONS OF THE STATUTE OR HE CANNOT DEVISE THEM AT ALL."  FN5 

THE UNITED STATES WOULD HAVE NO SEMBLANCE OF A CLAIM HERE WERE IT NOT
FOR WILLS PROBATED UNDER CALIFORNIA LAW.  THE FOX CASE IS ONLY ONE OF A
LONG LINE OF CASES WHICH HAVE CONSISTENTLY HELD THAT PART OF THE
RESIDUE OF SOVEREIGNTY RETAINED BY THE STATES, A RESIDUE INSURED BY THE
TENTH AMENDMENT,  FN9  IS THE POWER TO DETERMINE THE MANNER OF
TESTAMENTARY TRANSFER OF A DOMICILIARY'S PROPERTY AND THE POWER TO
DETERMINE WHO MAY BE MADE BENEFICIARIES.  FN10  IT WOULD BE ANOMALOUS
TO HOLD THAT, BECAUSE OF AN AMORPHOUS DOCTRINE OF NATIONAL SOVEREIGNTY,
FEDERAL CONSTITUTIONAL LAW REACHED INTO A CALIFORNIA STATUTE AND MADE
IMPOTENT THAT STATE'S RESTRICTIONS ON THE DESIGNATION OF
BENEFICIARIES. 

THE UNITED STATES' ARGUMENT LEADS TO THE CONCLUSION THAT NO
OBSTRUCTION WHATEVER MAY BE PUT IN THE WAY OF THE UNITED STATES' POWER
TO RECEIVE BY WILL.  THUS THE UNITED STATES COULD CLAIM RIGHTS UNDER
THE WILL OF A TESTATOR WHOM THE STATE HAD DECLARED INCOMPETENT, OR
UNDER A WILL THAT HAD NOT BEEN WITNESSED AND ATTESTED ACCORDING TO THE
LAWS OF THE STATE.  THE UNITED STATES COULD TAKE TO THE COMPLETE
EXCLUSION OF A SURVIVING SPOUSE, NOTWITHSTANDING THE STATE LAW. 

THE CASE OF UNITED STATES V. PERKINS, 163 U.S. 625, MAKES CLEAR THAT
OBSTACLES MAY BE PUT BY STATES TO THE PASSAGE OF PROPERTY BY WILL TO
THE UNITED STATES.  THERE THE NEW YORK COURT OF APPEALS HAD UPHELD THE
APPLICATION OF THE NEW YORK INHERITANCE TAX TO PERSONALTY BEQUEATHED
THE UNITED STATES.  ALTHOUGH THERE IS NO DOUBT THAT WHERE THE UNITED
STATES ACTS IN ITS SOVEREIGN CAPACITY, IT IS FREE FROM STATE TAXES ON
THAT ACTIVITY,  FN11  THIS COURT, IN AFFIRMING, SAID: 

"CERTAINLY, IF IT BE TRUE THAT THE RIGHT OF TESTAMENTARY DISPOSITION
IS PURELY STATUTORY, THE STATE HAS A RIGHT TO REQUIRE A CONTRIBUTION TO
THE PUBLIC TREASURY BEFORE THE BEQUEST SHALL TAKE EFFECT.  ... 

     .         .         .         .     . 

"WE THINK THAT IT FOLLOWS FROM THIS THAT THE ACT IN QUESTION IS NOT
OPEN TO THE OBJECTION THAT IT IS AN ATTEMPT TO TAX THE PROPERTY OF THE
UNITED STATES, SINCE THE TAX IS IMPOSED UPON THE LEGACY BEFORE IT
REACHES THE HANDS OF THE GOVERNMENT.  THE LEGACY BECOMES THE PROPERTY
OF THE UNITED STATES ONLY AFTER IT HAS SUFFERED A DIMINUTION TO THE
AMOUNT OF THE TAX, AND IT IS ONLY UPON THIS CONDITION THAT THE
LEGISLATURE ASSENTS TO A BEQUEST OF IT."  FN12 

WE SHALL NOT OVERRULE THE FOX CASE, AND, OF COURSE, WE FIND NO
DISTINCTION BETWEEN REALTY AND PERSONALTY.  WITHIN BROAD LIMITS, THE
STATE HAS POWER TO SAY WHAT IS DEVISABLE AND TO WHOM IT MAY BE GIVEN. 
WE MAY ASSUME WITH THE UNITED STATES THAT THE STATE'S POWER OVER
TESTAMENTARY GIFTS IS NOT ABSOLUTE,  FN13  BUT WE FIND NOTHING IN THE
SUPREMACY CLAUSE WHICH PROHIBITS THE STATE FROM PREVENTING ITS
DOMICILIARY FROM WILLING PROPERTY TO THE FEDERAL GOVERNMENT.  FN14 

THE ALTERNATIVE CONTENTION IS THAT SEC. 27 OF THE PROBATE CODE, AS
INTERPRETED, DISCRIMINATES AGAINST THE UNITED STATES IN VIOLATION OF
THE CONSTITUTION.  THE ARGUMENT IS THAT EVEN IF THE SUPREMACY CLAUSE
WOULD NOT BE VIOLATED IF THE STATUTE PROVIDED THAT NO GOVERNMENTAL BODY
COULD BE MADE THE BENEFICIARY OF A CALIFORNIA WILL, THERE IS A
VIOLATION OF THE SUPREMACY CLAUSE WHEN THE UNITED STATES IS TREATED
LESS ADVANTAGEOUSLY THAN CALIFORNIA.  APPARENTLY THE CAPACITY OF THE
UNITED STATES TO RECEIVE GIFTS IS ANALOGIZED TO THE RIGHT OF A PERSON
TO SUE ON A FEDERAL CAUSE OF ACTION IN A STATE COURT.  RELIANCE IS
PLACED ON THE CASES WHICH HAVE HELD THAT FEDERAL RIGHTS MUST BE
ENFORCED BY THE COURTS OF A STATE WHEN "ORDINARY JURISDICTION AS
PRESCRIBED BY LOCAL LAWS IS APPROPRIATE TO THE OCCASION."  FN15  THUS,
URGES APPELLANT, SINCE STATE COURTS MAY NOT DISCRIMINATE IN THE
AVAILABILITY OF JUDICIAL RELIEF BETWEEN STATE CREATED RIGHTS AND
FEDERALLY CREATED RIGHTS, NO MORE CAN A STATE DISCRIMINATE BETWEEN
CALIFORNIA AND THE UNITED STATES AS BENEFICIARIES UNDER WILLS. 

WHEN A STATE REFUSES TO HEAR PLEAS BASED ON FEDERALLY CREATED RIGHTS
WHILE IT TAKES COGNIZANCE OF THOSE CREATED BY STATE LAW, THERE MAY BE
INVALID DISCRIMINATION BECAUSE BY THE SUPREMACY CLAUSE FEDERAL LAWS ARE
MADE LAWS OF THE STATE.  FN16  THEREFORE TO ALLOW A SUIT BASED ON STATE
LAW AND TO REFUSE ONE BASED ON FEDERAL LAW COULD "DISCRIMINATE" WITHOUT
ANY REASON FOR THE CLASSIFICATION.  FN17  BUT THE UNITED STATES'
CAPACITY TO RECEIVE, EVEN THOUGH CALLED A "RIGHT" OR A "POWER," IS NOT
A "LAW OF THE STATE."  AS WE HAVE SHOWN IN THE EARLIER DISCUSSION, THAT
CAPACITY CANNOT BE MAGICALLY TRANSFORMED INTO SOMETHING THAT MUST BE
ENFORCED.  THE CASES UPHOLDING THE RIGHTS OF PERSONS TO SUE ARE NOT IN
POINT. 

IN A SENSE, OF COURSE, THE UNITED STATES IS BEING TREATED DIFFERENTLY
FROM CALIFORNIA, AND DIFFERENCES AND DISTINCTIONS IN A STATE'S
TREATMENT OF PERSONS ARE FREQUENTLY CLAIMED TO BE DISCRIMINATORY IN
VIOLATION OF THE EQUAL PROTECTION AND PRIVILEGES AND IMMUNITIES CLAUSES
OF THE FOURTEENTH AMENDMENT.  BUT SUCH DIFFERENCES AND DISTINCTIONS,
EVEN WHEN APPLIED TO PERSONS CLEARLY PROTECTED BY THE FOURTEENTH
AMENDMENT, ARE NOT IN THEMSELVES UNCONSTITUTIONAL.  IT IS ONLY WHEN THE
VARIATIONS ARE ARBITRARY AND WITHOUT REASONABLE LEGAL BASIS THAT AN
UNCONSTITUTIONAL DISCRIMINATION OCCURS.  A LONG LINE OF DECISIONS HAS
MOLDED THIS JUDICIAL CONCEPT.  FN18  THUS, ALTHOUGH WE SHOULD MAKE THE
SOMEWHAT DUBIOUS ASSUMPTION THAT THE UNITED STATES MUST RECEIVE EQUAL
PROTECTION UNDER THE FOURTEENTH AMENDMENT, THERE IS NO CONSTITUTIONAL
VIOLATION.  CALIFORNIA'S DECISION TO PERMIT ONLY ITSELF AND ITS
SUBORDINATE MUNICIPALITIES TO BE UNLIMITED GOVERNMENTAL BENEFICIARIES
UNDER THE WILLS OF ITS DOMICILIARIES IS BASED ON A PERMISSIBLE
DISTINCTION.  IT IS JUSTIFIED BY REASON OF THE STATE'S CLOSE
RELATIONSHIP WITH ITS RESIDENTS AND THEIR PROPERTY.  FN19 A STATE MAY
BY STATUTE PROPERLY PREFER ITSELF IN THIS WAY, JUST AS STATES HAVE
ALWAYS PREFERRED THEMSELVES IN ESCHEAT.  AFFIRMED. 

FN1  ESTATE OF BURNISON, 33 CAL.2D 638, 204 P.2D 330; ESTATE OF
SANBORN, 33 CAL.2D 647, 204 P.2D 335. 

FN2  PROBATE CODE OF CALIFORNIA, SEC. 27: 

"WHO MAY TAKE BY WILL.  A TESTAMENTARY DISPOSITION MAY BE MADE TO THE
STATE, TO COUNTIES, TO MUNICIPAL CORPORATIONS, TO NATURAL PERSONS
CAPABLE BY LAW OF TAKING THE PROPERTY, TO UNINCORPORATE RELIGIOUS,
BENEVOLENT OR FRATERNAL SOCIETIES OR ASSOCIATIONS OR LODGES OR BRANCHES
THEREOF, AND TO CORPORATIONS FORMED FOR RELIGIOUS, SCIENTIFIC,
LITERARY, OR SOLELY EDUCATIONAL OR HOSPITAL OR SANATORIUM PURPOSES, OR
PRIMARILY FOR THE PUBLIC PRESERVATION OF FORESTS AND NATURAL SCENERY,
OR TO MAINTAIN PUBLIC LIBRARIES, MUSEUMS OR ART GALLERIES, OR FOR
SIMILAR PUBLIC PURPOSES.  NO OTHER CORPORATION CAN TAKE UNDER A WILL,
UNLESS EXPRESSLY AUTHORIZED BY STATUTE." 

FN3  ONE JUDGE DISSENTED ON THE AUTHORITY OF ESTATE OF HENDRIX, 77
CAL. APP.2D 647, 651-53, 176 P.2D 398, 400-402.  THE HENDRIX WILL
BEQUEATHED PROPERTY TO THE UNITED STATES VETERANS' ADMINISTRATION FOR
THE AID, COMFORT AND ASSISTANCE OF DISABLED VETERANS.  THE CALIFORNIA
DISTRICT COURT OF APPEAL, AT 651, DECLARED THAT THIS WAS REALLY A
BEQUEST TO THE UNITED STATES, A CORPORATION, AND THAT ITS AGENCY, THE
DESIGNATED BENEFICIARY, WAS EXPRESSLY AUTHORIZED BY CALIFORNIA PROBATE
CODE SEC. 27 TO TAKE PROPERTY UNDER A WILL.  THUS THE BEQUEST WAS
VALID.  IN ITS OPINION IN THE PRESENT CASE, THE SUPREME COURT HELD THAT
THIS LANGUAGE HAD BEEN UNNECESSARY TO THE DECISION AND REFUSED TO
EXTEND IT TO THE GIFTS NOW UNDER CONSIDERATION.  IT THOUGHT THAT THE
HENDRIX GIFT WAS GOOD AS ONE FOR CHARITABLE PURPOSES TO A LEGALLY
CONSTITUTED INSTITUTION.  THE SUPREME COURT THOUGHT A GIFT TO THE
UNITED STATES "WITHOUT QUALIFICATION AS TO ADMINISTRATION OR PURPOSE,"
33 CAL.2D 646, 204 P.2D 335, DID NOT COME UNDER THE CLASSIFICATIONS OF
ASSOCIATIONS OR CORPORATIONS IN SEC. 27. 

FN4  MATTER OF WILL OF FOX, 52 N.Y. 530. 

FN5  UNITED STATES V. FOX, 94 U.S. 315, 321. 

IN ASKING US TO OVERRULE THE FOX CASE, THE UNITED STATES CONTENDS
THAT SINCE IT HAS THE POWER TO ACCEPT TESTAMENTARY GIFTS, THE SUPREMACY
CLAUSE BARS A STATE FROM STOPPING THIS STREAM OF FEDERAL REVENUE AT ITS
SOURCE.  THE ARGUMENT IS THAT EVERY AUTHORIZED ACTIVITY OF THE UNITED
STATES REPRESENTS AN EXERCISE OF ITS GOVERNMENTAL POWER,  FN6  AND THAT
THEREFORE THE POWER TO RECEIVE PROPERTY THROUGH A WILL IS A
GOVERNMENTAL POWER.  SINCE A STATE CANNOT INTERPOSE "AN OBSTACLE TO THE
EFFECTIVE OPERATION OF A FEDERAL CONSTITUTIONAL POWER,"  FN7  THE
GOVERNMENT ARGUES A STATE CANNOT INTERFERE WITH THIS POWER TO RECEIVE. 
THIS ARGUMENT FAILS TO RECOGNIZE THAT THE STATE ACTS UPON THE POWER OF
ITS DOMICILIARY TO GIVE AND NOT ON THE UNITED STATES' POWER TO
RECEIVE.  AS A LEGAL CONCEPT A TRANSFER OF PROPERTY MAY BE LOOKED UPON
AS A SINGLE TRANSACTION OR IT MAY BE SEPARATED INTO A SERIES OF STEPS. 
THE APPROACH CHOSEN MAY DETERMINE LEGAL CONSEQUENCES.  FN8 WHERE POWERS
FLOW SO DISTINCTLY FROM DIFFERENT SOURCES AS DO THE POWER TO WILL AND
THE POWER TO RECEIVE, WE THINK THE VALIDITY OF EACH STEP IS TO BE
TREATED SEPARATELY. 

FN6  GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466, 477; PITTMAN
V. HOME OWNERS' LOAN CORP., 308 U.S. 21, 32; FEDERAL LAND BANK V.
BISMARCK LUMBER CO., 314 U.S. 95, 102. 

FN7  UNITED STATES V. BELMONT, 301 U.S. 324, 331-32.    FN8  GREGORY
V. HELVERING, 293 U.S. 465. 

FN9  UNITED STATES V. SPRAGUE, 282 U.S. 716, 733; UNITED STATES V.
DARBY, 312 U.S. 100, 123. 

FN10  MAGER V. GRIMA, 8 HOW.  490, 493-94; UNITED STATES V. FOX, 94
U.S. 315, 321; UNITED STATES V. PERKINS, 163 U.S. 625, 627, 628;
PLUMMER V. COLER, 178 U.S. 115, 137; MAXWELL V. BUGBEE, 250 U.S. 525,
536; LYETH V. HOEY, 305 U.S. 188, 193; IRVING TRUST CO. V. DAY, 314
U.S. 556, 562; DEMOREST V. CITY BANK CO., 321 U.S. 36, 48. 

FN11  MAYO V. UNITED STATES, 319 U.S. 441. 

FN12  UNITED STATES V. PERKINS, 163 U.S. 625, 628, 630.    FN13
CLARK V. ALLEN, 331 U.S. 503.  CF. OYAMA V. CALIFORNIA, 332 U.S. 633. 

FN14  AS WAS POINTED OUT IN THE FOX CASE, OUR DETERMINATION DOES NOT
AFFECT THE RIGHT OF THE UNITED STATES TO ACQUIRE PROPERTY BY PURCHASE
OR EMINENT DOMAIN IN THE FACE OF A PROHIBITORY STATUTE OF THE STATE. 
KOHL V. UNITED STATES, 91 U.S. 367.  AN AUTHORIZED DECLARATION OF
TAKING OR A REQUISITION WILL PUT REALTY OR PERSONALTY AT THE DISPOSAL
OF THE UNITED STATES FOR "JUST COMPENSATION."  IT MAY TAX TESTAMENTARY
TRANSFERS.  ITS POWERS WILL NOT SUFFER. 

FN15  SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 56; DOUGLAS V.
NEW YORK, N.H. & H.R. CO., 279 U.S. 377; MCKNETT V. ST. LOUIS & S.F.R.
CO., 292 U.S. 230. 

FN16  CLAFLIN V. HOUSEMAN, 93 U.S. 130, 136; SECOND EMPLOYERS'
LIABILITY CASES, SUPRA, 57. 

FN17  MCKNETT V. ST. LOUIS & S.F.R. CO., SUPRA, 234; CF. DOUGLAS V.
NEW YORK, N.H. & H.R. CO., SUPRA. 

FN18  E.G., DENVER V. NEW YORK TRUST CO., 229 U.S. 123; RAST V. VAN
DEMAN & LEWIS CO., 240 U.S. 342; LA TOURETTE V. MCMASTER, 248 U.S. 465;
MAXWELL V. BUGBEE, 250 U.S. 525; NEW YORK RAPID TRANSIT CORP. V. CITY
OF NEW YORK, 303 U.S. 573; QUEENSIDE HILLS REALTY CO. V. SAXL, 328 U.S.
80. 

FN19  BOARD OF EDUCATION V. ILLINOIS, 203 U.S. 553; CF. CONNECTICUT
MUTUAL LIFE INS. CO. V. MOORE, 333 U.S. 541, 551. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















AFFOLDER V. N.Y., C. & ST. L.R. CO., 339 U.S. 96 


NO. 200.  ARGUED NOVEMBER 18, 1949.  - DECIDED MARCH 13, 1950.  - 174
F.2D 486, REVERSED. 


IN THIS ACTION AGAINST A RAILROAD UNDER THE SAFETY APPLIANCE ACT AND
THE FEDERAL EMPLOYERS' LIABILITY ACT, BASED ON AN ALLEGED VIOLATION OF
THE AUTOMATIC-COUPLER REQUIREMENT OF THE SAFETY APPLIANCE ACT, IT
APPEARED FROM THE EVIDENCE THAT THE PLAINTIFF, A SWITCHMAN, LOST A LEG
IN HIS ATTEMPT TO STOP A STRING OF MOVING CARS WHICH HAD SEPARATED FROM
OTHERS AFTER AN EARLIER FAILURE OF TWO OF THEM TO COUPLE ON IMPACT. 
THE VERDICT OF THE JURY AND THE JUDGMENT OF THE TRIAL COURT WERE FOR
THE PLAINTIFF.  HELD: 

1.  THE ISSUE OF PROXIMATE CAUSE WAS PROPERLY DETERMINED IN FAVOR OF
THE PLAINTIFF.  CARTER V. ATLANTA & ST. A.B.R. CO., 338 U.S. 430.  P.
98. 

2.  THE DUTY OF THE CARRIER UNDER THE AUTOMATIC-COUPLER REQUIREMENT
OF THE SAFETY APPLIANCE ACT IS UNRELATED TO NEGLIGENCE, BUT IS AN
ABSOLUTE ONE REQUIRING PROPER PERFORMANCE OF THE COUPLERS ON THE
OCCASION IN QUESTION.  O'DONNELL V. ELGIN, J. & E.R. CO., 338 U.S.
384.  P. 98. 

3.  THE CHARGE OF THE TRIAL COURT IN THIS CASE SUFFICIENTLY INFORMED
THE JURY AS TO THE RELEVANT LEGAL RULES.  IT DID NOT DEPRIVE THE
RAILROAD OF A DEFENSE BASED ON THE POSSIBILITY THAT THE SEPARATION OF
THE CARS WAS DUE TO THE PLAINTIFF'S FAILURE TO OPEN THE COUPLER.  PP.
98-100. 

4.  IN THE CIRCUMSTANCES OF THIS CASE, THE AMOUNT OF DAMAGES
($80,000) AWARDED BY THE TRIAL COURT'S JUDGMENT WAS NOT EXCESSIVE.  P.
101. 

AFFOLDER V. NEW YORK, CHICAGO & ST. LOUIS RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

IN AN ACTION UNDER THE SAFETY APPLIANCE ACT AND THE FEDERAL
EMPLOYERS' LIABILITY ACT, THE DISTRICT COURT ENTERED JUDGMENT FOR THE
PLAINTIFF.  THE COURT OF APPEALS REVERSED.  174 F.2D 486.  THIS COURT
GRANTED CERTIORARI.  338 U.S. 813.  REVERSED, P. 101. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

WE HAVE FOR REVIEW A JUDGMENT OF THE COURT OF APPEALS FOR THE EIGHTH
CIRCUIT, REVERSING PETITIONER'S RECOVERY OF AN $80,000 JUDGMENT AGAINST
THE RESPONDENT RAILROAD BASED ON AN ALLEGED VIOLATION OF THE FEDERAL
SAFETY APPLIANCE ACT  FN1  AND THE FEDERAL EMPLOYERS' LIABILITY ACT. 
FN2 PETITIONER WAS A MEMBER OF A CREW ENGAGED IN CLASSIFYING, OR
SORTING, A NUMBER OF RAILROAD CARS IN THE RESPONDENT'S YARDS.  TWENTY
FOUR CARS HAD BEEN COUPLED TOGETHER ON ONE TRACK.  THE TWENTY-FIFTH, A
ROCK ISLAND CAR, WAS KICKED EASTWARD DOWN THE TRACK TO COUPLE WITH THE
OTHERS.  IT DID SO, ITS EAST END JOINING THE OTHER CARS.  A
PENNSYLVANIA CAR WAS THE NEXT CAR KICKED EASTWARD DOWN THE TRACK, BUT
IT AND THE ROCK ISLAND CAR FAILED TO COUPLE TOGETHER.  AFTER THREE OR
FOUR OTHER CARS HAD BEEN ADDED, THE ROCK ISLAND CAR AND THE TWENTY-FOUR
OTHERS TO WHICH IT WAS ATTACHED BEGAN ROLLING DOWN THE TRACK. 
PETITIONER RAN AFTER THE MOVING TRAIN OF CARS IN AN ATTEMPT TO BOARD
AND STOP THEM, AS WAS HIS DUTY.  HIS LEG WAS LOST AS HE FELL UNDER A
CAR IN THIS ATTEMPT. 

THE TRIAL WAS TO A JURY, PETITIONER CONTENDING THAT THE FAILURE OF
THE PENNSYLVANIA CAR TO JOIN THE ROCK ISLAND CAR ON IMPACT WAS IN
ITSELF A VIOLATION OF THE SAFETY APPLIANCE ACT, RESULTING IN THE
SEPARATION AND HIS INJURY.  RESPONDENT TOOK THE POSITION THAT THE
CRITERION OF THE ACT IS, "WERE THEY (THE CARS) EQUIPPED WITH EFFICIENT
COUPLERS?"  AND NOT "DID THEY (THE COUPLERS) IN FACT FAIL TO COUPLE?";
AND THAT IF THERE WAS A VIOLATION OF THE ACT, IT WAS NOT THE PROXIMATE
CAUSE OF THE INJURY.  THE JURY RETURNED A VERDICT FOR $95,000 WHICH,
UPON REMITTITUR, WAS REDUCED TO $80,000.  A JUDGMENT IN THIS AMOUNT WAS
ENTERED.  79 F.SUPP.  365(1948).  ON APPEAL THE JUDGMENT WAS REVERSED. 
174 F.2D 486(1949).  WE GRANTED CERTIORARI.  338 U.S. 813(1949). 

THE COURT OF APPEALS DETERMINED THE ISSUE OF PROXIMATE CAUSE FAVORABLY
TO PETITIONER, AND RESPONDENT ADMITS THAT THE "PROBLEM OF CAUSAL
CONNECTION VEL NON IN THE AFFOLDER CASE IS LEGALLY IDENTICAL WITH THE
SAME PROBLEM IN THE CARTER CASE.  (CARTER V. ATLANTA & SAINT ANDREWS
BAY R. CO., 338 U.S. 430(1949).)"  WE AGREE AND CONSEQUENTLY HOLD THE
ISSUE CORRECTLY DETERMINED BELOW. 

NOR DO WE THINK THAT ANY QUESTION REGARDING THE NORMAL EFFICIENCY OF
THE COUPLERS IS INVOLVED IN AN ACTION UNDER THE SAFETY APPLIANCE ACTS. 
AS WE SAID IN O'DONNELL V. ELGIN, JOLIET & EASTERN R. CO., 338 U.S.
384(1949), AND THE CARTER CASE, SUPRA, THE DUTY UNDER THE ACTS IS NOT
BASED ON THE NEGLIGENCE OF THE CARRIER BUT IS AN ABSOLUTE ONE REQUIRING
PERFORMANCE "ON THE OCCASION IN QUESTION." 

THE COURT OF APPEALS BASED ITS DISPOSITION OF THE CASE ON THE
REASONING THAT THE CHARGE  FN3 GIVEN THE JURY CONTAINED "NO EXPLANATION
OF THE LEGAL EFFECT" OF THE DIRECT PROOF OF THE SEPARATION OF THE CARS
"AND THE PERMISSIBLE USE WHICH THE JURY COULD MAKE OF IT  ...  "  WE
THINK THE COURT OF APPEALS ERRONEOUSLY CONCLUDED THAT THE JURY COULD
FIND FOR THE PLAINTIFF ONLY IF IT INFERRED "BAD CONDITION OF THE
COUPLERS AND CONSEQUENT VIOLATION OF DEFENDANT'S STATUTORY DUTY ...  "
THIS WAS THE SAME ERROR THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
MADE IN O'DONNELL, SUPRA, IN AN OPINION RELIED UPON BY RESPONDENT IN
THE PRESENT CAUSE.  IN SUBSEQUENTLY REVERSING THE JUDGMENT OF THE COURT
OF APPEALS, WE HELD THAT THE PLAINTIFF DID NOT HAVE TO SHOW A "BAD"
CONDITION OF THE COUPLER; SHE WAS ENTITLED TO A PEREMPTORY INSTRUCTION
THAT TO EQUIP A CAR WITH A COUPLER WHICH FAILED TO PERFORM PROPERLY "IN
THE SWITCHING OPERATION WAS A VIOLATION OF THE ACT, WHICH RENDERED
DEFENDANT LIABLE FOR INJURIES PROXIMATELY RESULTING THEREFROM, AND THAT
NEITHER EVIDENCE OF NEGLIGENCE NOR OF DILIGENCE AND CARE WAS TO BE
CONSIDERED ON THE QUESTION OF THIS LIABILITY."  FURTHER, WE SAID, "A
FAILURE OF EQUIPMENT TO PERFORM AS REQUIRED BY THE SAFETY APPLIANCE ACT
IS IN ITSELF AN ACTIONABLE WRONG  ...  " 

OF COURSE THIS ASSUMES THAT THE COUPLER WAS PLACED IN A POSITION TO
OPERATE ON IMPACT.  THUS, IF "THE FAILURE OF THESE TWO CARS TO COUPLE
ON IMPACT WAS BECAUSE THE COUPLER ON THE PENNSYLVANIA CAR HAD NOT BEEN
PROPERLY OPENED," THE RAILROAD HAD A GOOD DEFENSE.  THE COURT OF
APPEALS ALSO FOUND FAULT WITH THE CHARGE ON THE GROUND THAT IT DEPRIVED
DEFENDANT OF THIS DEFENSE.  WE CANNOT AGREE.  THE TRIAL COURT DIRECTED
THE JURY AT LEAST THREE TIMES THAT IT WAS FOR THEM TO DETERMINE THE
REASON WHY THE CARS SEPARATED AND SPECIFICALLY CALLED THEIR ATTENTION
TO THE TESTIMONY OF THE HEAD SWITCHMAN, THUS EMPHASIZING THE
POSSIBILITY THAT HIS FAILURE, IF ANY, TO OPEN THE COUPLER WAS THE CAUSE
OF THE SEPARATION.  LIKEWISE, THE ARGUMENT OF COUNSEL, BOTH FOR
PLAINTIFF AND DEFENDANT, CLEARLY REVEALS THAT THE SOLE QUESTION WITH
REGARD TO THIS ISSUE WAS WHETHER, AFTER THE COUPLERS WERE PLACED IN
OPEN OR PROPER POSITION, THEY FAILED TO COUPLE AUTOMATICALLY ON
IMPACT.  FN4  THE JURY, BY ITS VERDICT, RESOLVED THE QUESTION AGAINST
THE RESPONDENT. 

WE THINK THE CHARGE, TAKEN AS A WHOLE, SUFFICIENTLY INFORMED THE JURY
OF THE RELEVANT LEGAL RULES. 

WE AGREE WITH THE COURT OF APPEALS THAT THE AMOUNT OF DAMAGES AWARDED
BY THE DISTRICT COURT'S JUDGMENT IS NOT MONSTROUS IN THE CIRCUMSTANCES
OF THIS CASE.  BARRY V. EDMUNDS, 116 U.S. 550(1886).  ACCORDINGLY, THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THAT OF THE DISTRICT
COURT AFFIRMED.  REVERSED. 

FN1  "IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER ENGAGED IN
INTERSTATE COMMERCE BY RAILROAD TO HAUL OR PERMIT TO BE HAULED OR USED
ON ITS LINE ANY CAR USED IN MOVING INTERSTATE TRAFFIC NOT EQUIPPED WITH
COUPLERS COUPLING AUTOMATICALLY BY IMPACT, AND WHICH CAN BE UNCOUPLED
WITHOUT THE NECESSITY OF MEN GOING BETWEEN THE ENDS OF THE CARS."  27
STAT. 531, 45 U.S.C. SEC. 2. 

FN2  35 STAT. 65, AS AMENDED, 45 U.S.C. SECS. 51-60. 

FN3  THE TRIAL COURT'S CHARGE IS SET OUT AT LENGTH IN THE OPINION OF
THE COURT OF APPEALS, 174 F.2D 486, 488-491. 

FN4  DEFENDANT HAD INTRODUCED IN EVIDENCE A SMALL MODEL OF THE
COUPLER INVOLVED AND AN EXPERT HAD DEMONSTRATED ITS WORKINGS TO THE
JURY.  COUNSEL FOR DEFENDANT ARGUED TO THE JURY:  "HE (PLAINTIFF'S
COUNSEL) SAYS IT IS ONLY NECESSARY TO SHOW THAT THERE WAS NO COUPLING. 
I SAY HE IS WRONG.  I SAY HE MUST SHOW THAT THERE WAS A FAILURE TO
COUPLE BECAUSE THE CAR WAS NOT EQUIPPED WITH COUPLERS COUPLING
AUTOMATICALLY ON IMPACT.  IF THEY DID NOT COUPLE, AND IF THEY DID NOT
COUPLE BECAUSE OF SOME OTHER REASON  ...  THEN THERE IS NO LIABILITY IN
THIS CASE."  DEFENDANT'S COUNSEL, IN USING THE MODEL, EXPLAINED HIS
POSITION:  IF "THIS LOCK WAS HELD UP SO THAT THE KNUCKLE WOULD NOT LOCK
BACK, IT WAS CLOSED, TELL ME, LADIES AND GENTLEMEN, WOULD THIS KNUCKLE
BE OPENED OR CLOSED FOLLOWING THE ACCIDENT?  WELL, OBVIOUSLY, IF THE
FAILURE OF THE COUPLING TO MAKE WAS BECAUSE THE KNUCKLE WAS NOT LOCKED
CLOSED, IT WOULD HAVE TO BE OPEN FOLLOWING THE ACCIDENT, AND MILLIKAN
TESTIFIED THAT THE KNUCKLE (AN HOUR AFTER THE ACCIDENT) WAS NOT ONLY
CLOSED  ...  BUT THE PIN WAS SEATED, THE LOCK WAS DOWN  ...  NOW, THE
ANSWER TO THAT, LADIES AND GENTLEMEN, IS THE ONLY POSSIBLE ANSWER  ...
THIS KNUCKLE WAS CLOSED WHEN THE PENNSYLVANIA CAR WAS KICKED DOWN ON TO
THE ROCK ISLAND CAR." 

PLAINTIFF'S COUNSEL COUNTERED: 

"I DON'T SAY, AND NEVER TOLD YOU, NEVER WILL, NOR WILL THE COURT,
THAT IF THERE IS MERELY SEPARATION OF CARS, PLAINTIFF SHALL RECOVER.  I
SIMPLY TOLD YOU, IF THERE IS A SEPARATION OF CARS AFTER THOSE DEVICES
WERE PUT IN OPERATION AND DID NOT OPERATE, THEN THEY FAILED TO PERFORM
THEIR DUTY, REGARDLESS OF HOW THEY OPERATED BEFORE OR SINCE, AND THAT
WE DO NOT HAVE TO PROVE - AND THE COURT WILL TELL YOU THAT EMPHATICALLY
- ANY DEFECT." 

AS TO WHETHER THE KNUCKLE WAS OPENED, THERE WAS THIS ARGUMENT BY
PLAINTIFF'S COUNSEL: 

"NOW, LET ME ASK YOU, DID TIELKER (THE HEAD SWITCHMAN) OPEN THAT
KNUCKLE OR NOT OPEN IT?  HE SAYS THAT WHEN HE WENT TO OPEN THAT
KNUCKLE, HE HAD DIFFICULTY IN OPENING IT - HE HAD TO PUSH IT THREE
TIMES, WHEN IT FAILED TO OPEN THE FIRST TIME, SHOWING SOMETHING WAS
STUCK. 

     .         .         .         .        . 

"THIS BAD-ORDER CARD - REMEMBER THIS IS ON THE FRONT END OF IT - AND
THAT IS CAR PENNSYLVANIA 727512.  ...  THEY FIND THAT BENT OPERATING
LEVER ROD, OR BENT OPERATING LEVER BRACKET, DON'T THEY?  THEY FIND THAT
THEMSELVES.  THIS IS THEIR CARD, THIS IS THEIR RECORD. 

"WHAT DOES THIS CARD DO THEN THAT I HAVE IN MY HAND?  WHAT DOES IT
DO?  IT CONFIRMS TIELKER, DOESN'T IT?" 

MR. JUSTICE REED DISSENTS.  HE WOULD AFFIRM ON THE FAILURE OF THE
TRIAL COURT TO MAKE CLEAR TO THE JURY THAT THE CARRIER WAS NOT LIABLE
UNDER THE SAFETY APPLIANCE ACT IF THE FAILURE TO COUPLE WAS DUE TO
NEGLIGENCE IN SETTING THE COUPLER.  SEE NEW YORK, C. & ST. L.R. CO. V.
AFFOLDER, 174 F.2D 486, 491, AND O'DONNELL V. ELGIN, J. & E.R. CO., 338
U.S. 384, 394, NOTE 7. 

MR. JUSTICE FRANKFURTER WOULD DISMISS THIS WRIT AS IMPROVIDENTLY
GRANTED, FOR REASONS SET FORTH BY HIM IN CARTER V. ATLANTA & ST.
ANDREWS BAY R. CO., 338 U.S. 430, 437. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON, DISSENTING. 

THE ONLY ISSUE SURVIVING IN THIS CASE IS WHETHER THE CHARGE GAVE THE
JURY A SUFFICIENTLY CLEAR AND CORRECT KNOWLEDGE OF THE LAW TO BE
APPLIED. 

THE COURT OF APPEALS THOUGHT THE CHARGE AS A WHOLE "VERY PROBABLY
GAVE THE JURY THE IMPRESSION" THAT IT NEED ONLY FIND THAT TWO CARS
FAILED TO COUPLE ON IMPACT TO ESTABLISH A VIOLATION OF THE SAFETY
APPLIANCE ACT.  THIS, AS THE COURT RECOGNIZES, IS NOT THE LAW.  BEFORE
A FAILURE TO COUPLE ESTABLISHES A DEFECTIVE COUPLER, IT MUST BE FOUND
THAT IT WAS PROPERLY SET SO IT COULD COUPLE.  IF IT WAS NOT ADJUSTED AS
SUCH AUTOMATIC COUPLERS MUST BE, OF COURSE THE FAILURE IS NOT THAT OF
THE DEVICE. 

THE INSTRUCTIONS CONTAINED LANGUAGE QUOTED BY THIS COURT THAT WOULD
SUGGEST THIS RULE.  OTHER LANGUAGE WAS USED, HOWEVER, WHICH MIGHT WELL
CANCEL THE EFFECT OF THAT QUOTED.  JUDGE COLLET, FOR THE COURT OF
APPEALS, SAID, "WE ARE UNABLE TO ESCAPE THE CONCLUSION THAT THE
INSTRUCTION WAS NOT SUFFICIENTLY CLEAR AND DEFINITE IN THAT RESPECT." 
174 F.2D AT 491. 

IF THE CHARGE SEEMED SO FOGGY TO A COURT OF APPEALS, GENERALLY
FAMILIAR WITH WHAT THE TRIAL JUDGE WAS DRIVING AT, I DO NOT SEE HOW
THIS COURT CAN BE SO CONFIDENT THAT IT DID NOT MISLEAD A JURY OF
LAYMEN.  THAT CONFIDENCE IS ALL UPON WHICH WE REVERSE THE JUDGMENT.  WE
CANNOT KNOW ANY MORE ABOUT ITS EFFECT THAN DID THE COURT OF APPEALS;
AND THAT COURT HAPPENED TO HAVE BEEN COMPOSED OF JUDGES, TWO OF WHOM
HAVE HAD THE EXPERIENCE OF PRESIDING OVER JURY TRIALS IN DISTRICT
COURT, WHICH GIVES THEM A BETTER INFORMED MIND ON THE SUBJECT THAN WE
HAVE.  I SHOULD BE INCLINED TO AGREE WITH THEM THAT THE CHARGE LEAVES
THE SUBJECT IN SO MUCH CONFUSION THAT I DO NOT KNOW JUST WHAT THE
INSTRUCTION DID AMOUNT TO.  THE MOST THAT CAN HAPPEN UNDER THE DECISION
NOW BEING REVERSED IS TO RESUBMIT THE CASE TO A JURY THAT PROBABLY
WOULD BE MORE CAREFULLY AND CLEARLY INSTRUCTED. 

IN ANY EVENT, I DO NOT THINK THIS IS THE KIND OF ISSUE THAT MEETS THE
QUALIFICATIONS WE HAVE OURSELVES LAID DOWN FOR GRANT OF CERTIORARI. 
SUPREME COURT RULE 38(5).  NO QUESTION OF LAW IS, OR COULD BE, SETTLED
UNLESS WE COULD DEVISE SOME MEASURE OF INCOHERENCE SO THAT LOWER COURTS
WOULD KNOW HOW MUCH WE WILL THINK IS TOO MUCH.  SHORT OF THAT, WE ONLY
SUBSTITUTE OUR OWN IMPRESSION FOR THAT OF THE COURT OF APPEALS AS TO
THE PROBABLE PSYCHOLOGICAL EFFECT OF THE INSTRUCTION IN THIS INDIVIDUAL
CASE.  ALL THAT WAS WRITTEN IN FAVOR OF DISMISSING A WRIT AS
IMPROVIDENTLY GRANTED IN CARTER V. ATLANTA & ST. A.B.R. CO., 338 U.S.
430, 437, AND WILKERSON V. MCCARTHY, 336 U.S. 53, 65-77, SEEMS
ESPECIALLY APPLICABLE HERE.  I WOULD DISMISS THIS WRIT AS IMPROVIDENTLY
GRANTED. 
..END :













HIATT V. BROWN, 339 U.S. 103 


NO. 359.  ARGUED FEBRUARY 6-7, 1950.  - DECIDED MARCH 13, 1950.  - 175
F.2D 273, REVERSED. 


RESPONDENT, A SOLDIER IN THE UNITED STATES ARMY IN GERMANY, WAS
CONVICTED OF MURDER BY A GENERAL COURT-MARTIAL AND WAS SENTENCED TO
IMPRISONMENT.  AT THE TIME OF THE TRIAL, IN 1947, THE 8TH ARTICLE OF
WAR REQUIRED THE AUTHORITY APPOINTING A GENERAL COURT-MARTIAL TO DETAIL
AS LAW MEMBER THEREOF AN OFFICER OF THE JUDGE ADVOCATE GENERAL'S
DEPARTMENT, EXCEPT WHEN AN OFFICER OF THAT DEPARTMENT WAS "NOT
AVAILABLE FOR THE PURPOSE."  IN THE ORDER OF THE COMMANDING GENERAL
APPOINTING THE GENERAL COURT-MARTIAL WHICH TRIED RESPONDENT, THE ONLY
OFFICER NAMED FROM THE JUDGE ADVOCATE GENERAL'S DEPARTMENT WAS A
CAPTAIN WHO WAS DESIGNATED AS ONE OF THE ASSISTANT TRIAL JUDGE
ADVOCATES, AND HE WAS ABSENT FROM THE TRIAL ON VERBAL ORDERS OF THE
COMMANDING GENERAL.  AND ORDER OF THE DISTRICT COURT SUSTAINING A WRIT
OF HABEAS CORPUS AND ORDERING RESPONDENT DISCHARGED WAS AFFIRMED BY THE
COURT OF APPEALS.  HELD: 

1.  THE JUDGMENT OF THE COURT OF APPEALS IS REVIEWABLE BY THIS COURT
ON CERTIORARI UNDER 28 U.S.C. SEC. 1254.  P. 106, N. 1. 

2.  THE RECORD IN THIS CASE DOES NOT DISCLOSE ANY DISREGARD OF THE
8TH ARTICLE OF WAR IN THE APPOINTMENT OF THE GENERAL COURT-MARTIAL. 
PP. 106-110. 

(A)  THE FACT THAT AN OFFICER OF THE JUDGE ADVOCATE GENERAL'S
DEPARTMENT WAS DETAILED TO A GENERAL COURT-MARTIAL IN ANOTHER CAPACITY,
AND THAT NOTHING OTHERWISE APPEARED TO NEGATIVE HIS AVAILABILITY AS A
LAW MEMBER, DOES NOT REQUIRE THE CONCLUSION THAT HE WAS "AVAILABLE" FOR
APPOINTMENT AS LAW MEMBER, WITHIN THE MEANING OF THE 8TH ARTICLE OF
WAR.  PP. 107-108. 

(B)  THE AVAILABILITY OF AN OFFICER OF THE JUDGE ADVOCATE GENERAL'S
DEPARTMENT AS LAW MEMBER OF A GENERAL COURT-MARTIAL WAS INTENDED BY
CONGRESS TO BE A MATTER WITHIN THE SOUND DISCRETION OF THE APPOINTING
AUTHORITY.  P. 108. 

(C)  IN THE 8TH ARTICLE OF WAR, THE PHRASE "AVAILABLE FOR THE
PURPOSE" CONNOTES AN EXERCISE OF DISCRETION BY THE APPOINTING
AUTHORITY.  PP. 108-109. 

(D)  IN THE DETERMINATION OF THE MEANING OF THE 8TH ARTICLE OF WAR,
THIS COURT ACCORDS GREAT WEIGHT TO AN INTERPRETATION OF THE ARTICLE
WHICH HAS BEEN CONSISTENTLY GIVEN AND APPLIED BY THE ARMY.  P. 109. 

(E)  THE EXERCISE OF THE DISCRETION CONFERRED ON THE APPOINTING
AUTHORITY BY THE 8TH ARTICLE MAY BE REVIEWED BY THE COURTS ONLY IF A
GROSS ABUSE OF THAT DISCRETION WOULD HAVE GIVEN RISE TO A DEFECT IN THE
JURISDICTION OF THE COURT-MARTIAL; AND WHETHER THE 8TH ARTICLE IMPOSES
A REQUIREMENT GOING TO THE JURISDICTION NEED NOT HERE BE DETERMINED,
FOR NOTHING IN THE RECORD INDICATES THAT THE DISCRETION OF THE
APPOINTING AUTHORITY WAS IMPROPERLY EXERCISED.  PP. 109-110. 

(F)  ON THE RECORD IN THIS CASE, NO ABUSE OF THE DISCRETION OF THE
APPOINTING AUTHORITY IS DISCLOSED BY THE APPOINTMENT OF AN OFFICER OF
THE JUDGE ADVOCATE GENERAL'S DEPARTMENT IN A CAPACITY OTHER THAN LAW
MEMBER, OR BY REASSIGNMENT OF THAT OFFICER TO OTHER DUTY AT THE TIME OF
THE TRIAL, OR BY THE STANDARD OF COMPETENCE IN LEGAL MATTERS SHOWN BY
THE LAW MEMBER AT THE TRIAL.  P. 110. 

3.  THE PROCEEDING IN THE COURT OF APPEALS BEING IN HABEAS CORPUS,
THAT COURT ERRED IN EXTENDING ITS REVIEW, FOR THE PURPOSE OF
DETERMINING COMPLIANCE WITH THE DUE PROCESS CLAUSE, TO SUCH MATTERS AS
THE PROPOSITIONS OF LAW SET FORTH IN THE STAFF JUDGE ADVOCATE'S REPORT,
THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN RESPONDENT'S CONVICTION, THE
ADEQUACY OF THE PRETRIAL INVESTIGATION, AND THE COMPETENCE OF THE LAW
MEMBER AND DEFENSE COUNSEL.  PP. 110-111. 

(A)  IN A HABEAS CORPUS PROCEEDING TO OBTAIN THE RELEASE OF ONE UNDER
SENTENCE OF A COURT-MARTIAL, THE SINGLE INQUIRY IS AS TO THE
JURISDICTION OF THE COURT-MARTIAL.  P. 111. 

(B)  THE GENERAL COURT-MARTIAL IN THIS CASE HAD JURISDICTION OF THE
PERSON ACCUSED AND OF THE OFFENSE CHARGED, AND ACTED WITHIN ITS LAWFUL
POWERS.  P. 111. 

(C)  THE CORRECTION OF ANY ERRORS WHICH MAY HAVE BEEN COMMITTED BY
THE GENERAL COURT-MARTIAL IS FOR THE MILITARY AUTHORITIES, WHICH ARE
ALONE AUTHORIZED TO REVIEW ITS DECISION.  IN RE YAMASHITA, 327 U.S. 1,
8-9.  P. 111. 

HIATT, WARDEN, V. BROWN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING TO SECURE RESPONDENT'S RELEASE FROM
IMPRISONMENT UNDER A SENTENCE OF A GENERAL COURT-MARTIAL, THE DISTRICT
COURT SUSTAINED THE WRIT AND ORDERED RESPONDENT DISCHARGED.  81
F.SUPP.  647.  THE COURT OF APPEALS AFFIRMED.  175 F.2D 273.  THIS
COURT GRANTED CERTIORARI.  338 U.S. 890.  REVERSED, P. 111. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, WHILE SERVING AS AN ENLISTED SOLDIER IN THE UNITED STATES
ARMY IN GERMANY, WAS CONVICTED BY A GENERAL COURT-MARTIAL OF COMMITTING
MURDER ON DECEMBER 25, 1946, IN VIOLATION OF THE 92D ARTICLE OF WAR, 41
STAT. 805, 10 U.S.C. SEC. 1564.  THE SENTENCE IMPOSED WAS DISHONORABLE
DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND LIFE IMPRISONMENT,
WHICH WAS REDUCED TO TWENTY YEARS UPON RECOMMENDATION OF THE JUDGE
ADVOCATE GENERAL.  ON PETITION FOR A WRIT OF HABEAS CORPUS, THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ORDERED RESPONDENT
DISCHARGED FROM THE FEDERAL PENITENTIARY IN ATLANTA, 81 F.SUPP. 
647(1948), AND THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED, ONE
JUDGE DISSENTING.  175 F.2D 273(1949).  BOTH THE DISTRICT COURT AND THE
COURT OF APPEALS CONCLUDED THAT THE MILITARY TRIBUNAL WHICH CONVICTED
RESPONDENT WAS IMPROPERLY CONSTITUTED AND LACKED JURISDICTION OF THE
OFFENSE.  THE COURT OF APPEALS HELD FURTHER THAT THE RECORD WAS
"REPLETE WITH HIGHLY PREJUDICIAL ERRORS AND IRREGULARITIES" WHICH
DEPRIVED RESPONDENT OF DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT AND
AFFORDED AN INDEPENDENT GROUND FOR SUSTAINING THE WRIT.  WE BROUGHT THE
CASE HERE, ON PETITION OF THE WARDEN HAVING CUSTODY OF RESPONDENT, IN
VIEW OF THE IMPORTANCE OF THE DECISION BELOW IN THE ADMINISTRATION OF
MILITARY JUSTICE.  338 U.S. 890(1949).  OUR JURISDICTION TO REVIEW THE
JUDGMENT OF THE COURT OF APPEALS IS UNDER 28 U.S.C. SEC. 1254(1).  FN1 

RESPONDENT WAS TRIED IN GERMANY ON JANUARY 9 AND 14, 1947, BEFORE A
GENERAL COURT-MARTIAL WHICH HAD BEEN APPOINTED BY ORDER OF THE
COMMANDING GENERAL OF THE CONTINENTAL BASE SECTION, EUROPEAN THEATRE,
ON DECEMBER 7, 1946.  THE DETAIL APPOINTED WAS COMPRISED OF A TRIAL
JUDGE ADVOCATE AND TWO ASSISTANT TRIAL JUDGE ADVOCATES, DEFENSE COUNSEL
AND TWO ASSISTANT DEFENSE COUNSEL, THE LAW MEMBER AND TWELVE OTHER
OFFICERS.  THE RANKING OFFICER OF THE DETAIL, A COLONEL OF THE FIELD
ARTILLERY WITH TWENTY-FIVE YEARS OF COMMISSIONED SERVICE, WAS APPOINTED
LAW MEMBER.  THE ONLY MEMBER OF THE DETAIL APPOINTED FROM THE JUDGE
ADVOCATE GENERAL'S DEPARTMENT WAS A CAPTAIN WHO WAS DESIGNATED AN
ASSISTANT TRIAL JUDGE ADVOCATE.  FN2  HE WAS ABSENT FROM RESPONDENT'S
TRIAL ON VERBAL ORDERS OF THE COMMANDING GENERAL. 

THE COURT OF APPEALS DETERMINED THAT UNDER THESE CIRCUMSTANCES THE
COURT-MARTIAL HAD BEEN APPOINTED IN DISREGARD OF THE 8TH ARTICLE OF
WAR, 41 STAT. 788, 10 U.S.C. SEC. 1479.  THE RELEVANT PROVISION OF THIS
ARTICLE AS IN FORCE AT THE TIME OF RESPONDENT'S TRIAL IS SET FORTH IN
THE MARGIN.  FN3  THE ARTICLE WAS INTERPRETED BY THE COURT OF APPEALS
AS REQUIRING, "CERTAINLY IN TIMES OF PEACE, THAT THE PRESENCE OF A DULY
QUALIFIED LAW MEMBER FROM THE JUDGE ADVOCATE GENERAL'S DEPARTMENT BE
MADE A JURISDICTIONAL PREREQUISITE TO THE VALIDITY OF SUCH COURT
MARTIAL PROCEEDING, EXCEPT IN THE SINGLE INSTANCE WHERE SUCH OFFICER IS
ACTUALLY, AND IN FACT, 'NOT AVAILABLE.'"  175 F.2D AT 276.  THE COURT
OF APPEALS HELD THAT THE AVAILABILITY OF A LAW MEMBER FROM THE JUDGE
ADVOCATE GENERAL'S DEPARTMENT WAS CONCLUSIVELY INDICATED BY THE ORDER
DETAILING AN OFFICER FROM THAT DEPARTMENT IN ANOTHER CAPACITY WITHOUT
ANY EXPLANATION.  THUS THE COURT CONCLUDED THAT THE PROCEEDING WAS
VOID. 

WE ARE UNABLE TO AGREE WITH THE COURT OF APPEALS THAT THIS RECORD
DISCLOSES ANY DISREGARD OF THE 8TH ARTICLE OF WAR IN THE APPOINTMENT OF
THE TRIBUNAL WHICH CONVICTED RESPONDENT. 

UNDER THE INTERPRETATION PLACED ON THE 8TH ARTICLE BY THE COURT
BELOW, AN OFFICER FROM THE JUDGE ADVOCATE GENERAL'S DEPARTMENT WAS
"AVAILABLE" FOR APPOINTMENT AS LAW MEMBER IF HE WAS APPOINTED ON THE
DETAIL IN ANOTHER CAPACITY AND NOTHING OTHERWISE APPEARED TO NEGATIVE
HIS AVAILABILITY AS LAW MEMBER.  THE ARTICLE HAS BEEN CONSTRUED
DIFFERENTLY BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN HENRY V.
HODGES, 171 F.2D 401(1948).  IN THAT CASE, IN WHICH THE INTERPRETATIVE
ISSUE WAS SIMILARLY RAISED ON PETITION FOR HABEAS CORPUS, ONE OFFICER
FROM THE JUDGE ADVOCATE GENERAL'S DEPARTMENT HAD BEEN APPOINTED TRIAL
JUDGE ADVOCATE AND A SECOND DESIGNATED COUNSEL FOR ANOTHER ACCUSED. 
THE COURT THROUGH JUDGE LEARNED HAND DECLARED: 

"THERE REMAINS THE  ...  QUESTION  ...  WHETHER ANY MEMBER OF THE
JUDGE ADVOCATE GENERAL'S DEPARTMENT WAS 'AVAILABLE' AT THE TIME.  WE
CANNOT SAY THAT IT WAS NOT MORE IN THE INTEREST OF JUSTICE TO DETAIL
BEATTY TO DEFEND FELTMAN THAN TO PUT HIM ON THE COURT; OR THAT IT WAS
NOT BETTER JUDGMENT TO MAKE SWAN A PROSECUTOR THAN A JUDGE  ...  THE
WHOLE QUESTION IS ESPECIALLY ONE OF DISCRETION; AND, IF IT IS EVER
REVIEWABLE, CERTAINLY THE RECORD AT BAR IS WITHOUT EVIDENCE WHICH WOULD
JUSTIFY A REVIEW.  THE COMMANDING OFFICER WHO CONVENES THE COURT MUST
DECIDE WHAT MEMBERSHIP WILL BE LEAST TO THE 'INJURY OF THE SERVICE,'
AND WHAT OFFICERS ARE 'AVAILABLE.'  'AVAILABLE' MEANS MORE THAN
PRESENTLY 'ACCESSIBLE'; IT DEMANDS A BALANCE BETWEEN THE CONFLICTING
DEMANDS UPON THE SERVICE, AND IT MUST BE DETERMINED ON THE SPOT."  171
F.2D AT 403. 

WE AGREE WITH THE LATTER INTERPRETATION THAT THE AVAILABILITY OF AN
OFFICER AS LAW MEMBER WAS INTENDED BY CONGRESS TO BE A MATTER WITHIN
THE SOUND DISCRETION OF THE APPOINTING AUTHORITY.  ORDINARILY THE
"AVAILABILITY" OF MILITARY PERSONNEL WHO ARE SUBJECT TO ASSIGNMENT BY
AN APPOINTING AUTHORITY IS UNDERSTOOD TO DEPEND UPON A DISCRETIONARY
DETERMINATION BY THE SUPERIOR.  CF. KAHN V. ANDERSON, 255 U.S. 1(1921);
SWAIM V. UNITED STATES, 165 U.S. 553(1897); MULLAN V. UNITED STATES,
140 U.S. 240(1891); MARTIN V. MOTT, 12 WHEAT.  19(1827).  MOREOVER, THE
PHRASE ADOPTED IN THE 8TH ARTICLE, "AVAILABLE FOR THE PURPOSE,"
EXPRESSES A CLEAR INTENT THAT THE CONCEPT OF AVAILABILITY SHOULD
INCLUDE THE EXERCISE OF DISCRETION BY THE APPOINTING AUTHORITY.  FN4 

THE 8TH ARTICLE HAS ALSO BEEN CONSISTENTLY INTERPRETED AND APPLIED BY
THE ARMY AS VESTING A DISCRETION IN THE APPOINTING AUTHORITY, WHICH
WHEN EXERCISED IS CONCLUSIVE IN DETERMINING NOT ONLY THE ACCESSIBILITY
OF PERSONNEL BUT ALSO THE SUITABILITY OF THE OFFICER DETAILED AS THE
LAW MEMBER OF A GENERAL COURT-MARTIAL.  CM 231963, HATTEBERG, 18 B.R.
349, 366-369(1943); CM ETO 804, OGLETREE, 2 B.R. (ETO) 337, 346(1943);
CM 209988, CROMWELL, 9 B.R. 169, 196(1938); DIGEST OF OPINIONS OF THE
JUDGE ADVOCATE GENERAL (1912-1940) SEC. 365(9).  THIS ESTABLISHED
INTERPRETATION IS ENTITLED TO GREAT WEIGHT IN OUR DETERMINATION OF THE
MEANING OF THE ARTICLE.  CF. UNITED STATES EX REL. HIRSHBERG V. COOKE,
336 U.S. 210, 216(1949). 

THE EXERCISE OF THE DISCRETION THUS CONFERRED ON THE APPOINTING
AUTHORITY MAY BE REVIEWED BY THE COURTS ONLY IF A GROSS ABUSE OF THAT
DISCRETION WOULD HAVE GIVEN RISE TO A DEFECT IN THE JURISDICTION OF THE
COURT-MARTIAL.  FN5  HOWEVER, WE NEED NOT DETERMINE AT THIS TIME
WHETHER THE PROVISION OF THE 8TH ARTICLE RELIED UPON BELOW IMPOSED A
REQUIREMENT GOING TO THE JURISDICTION OF THE COURT-MARTIAL, FOR NOTHING
IN THE RECORD HERE INVOLVED INDICATES THAT THE DISCRETION OF THE
APPOINTING AUTHORITY WAS IMPROPERLY EXERCISED.  CLEARLY NO ABUSE IS
DISCLOSED BY THE APPOINTMENT OF AN OFFICER FROM THE JUDGE ADVOCATE
GENERAL'S DEPARTMENT TO A CAPACITY OTHER THAN LAW MEMBER ON THE DETAIL,
OR BY REASSIGNMENT OF THAT OFFICER TO OTHER DUTY AT THE TIME OF TRIAL,
OR BY THE STANDARD OF COMPETENCE IN LEGAL MATTERS SHOWN BY THE LAW
MEMBER AT THE TRIAL. 

THE COURT OF APPEALS ALSO CONCLUDED THAT CERTAIN ERRORS COMMITTED BY
THE MILITARY TRIBUNAL AND REVIEWING AUTHORITIES HAD DEPRIVED RESPONDENT
OF DUE PROCESS.  FN6  WE THINK THE COURT WAS IN ERROR IN EXTENDING ITS
REVIEW, FOR THE PURPOSE OF DETERMINING COMPLIANCE WITH THE DUE PROCESS
CLAUSE, TO SUCH MATTERS AS THE PROPOSITIONS OF LAW SET FORTH IN THE
STAFF JUDGE ADVOCATE'S REPORT, THE SUFFICIENCY OF THE EVIDENCE TO
SUSTAIN RESPONDENT'S CONVICTION, THE ADEQUACY OF THE PRETRIAL
INVESTIGATION, AND THE COMPETENCE OF THE LAW MEMBER AND DEFENSE
COUNSEL.  CF. HUMPHREY V. SMITH, 336 U.S. 695(1949).  IT IS WELL
SETTLED THAT "BY HABEAS CORPUS THE CIVIL COURTS EXERCISE NO SUPERVISORY
OR CORRECTING POWER OVER THE PROCEEDINGS OF A COURT-MARTIAL  ...  THE
SINGLE INQUIRY, THE TEST, IS JURISDICTION."  IN RE GRIMLEY, 137 U.S.
147, 150(1890).  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.  IN RE YAMASHITA, 327 U.S. 1, 8-9(1946); SWAIM V. UNITED
STATES, SUPRA, 165 U.S. AT 562. 

IT RESULTS THAT THE JUDGMENT IS REVERSED. 

FN1  RESPONDENT CONTENDS THAT THIS COURT LACKS JURISDICTION TO REVIEW
A COURT OF APPEALS' JUDGMENT ORDERING DISCHARGE OF A PRISONER OR
AFFIRMING SUCH AN ORDER, IN VIEW OF THE OMISSION FROM REVISED TITLE 28
OF ANY PROVISION COMPARABLE TO FORMER SEC. 463C WHICH EXPRESSLY
AUTHORIZED REVIEW OF SUCH JUDGMENTS ON CERTIORARI.  WE THINK THIS
CONTENTION IS WITHOUT MERIT IN VIEW OF THE BROAD PROVISION OF SEC. 1254
THAT "CASES IN THE COURTS OF APPEALS MAY BE REVIEWED BY THE SUPREME
COURT ...  (1) BY WRIT OF CERTIORARI GRANTED UPON THE PETITION OF ANY
PARTY TO ANY CIVIL OR CRIMINAL CASE  ...  " 

FN2  THE COURT OF APPEALS STATED IN ITS OPINION THAT TWO OFFICERS OF
THE JUDGE ADVOCATE GENERAL'S DEPARTMENT WERE APPOINTED TO THE DETAIL. 
HOWEVER, THE RECORD INDICATES THAT ONLY ONE OF THOSE MENTIONED BELOW
WAS APPOINTED FROM THAT DEPARTMENT. 

FN3  "THE AUTHORITY APPOINTING A GENERAL COURT-MARTIAL SHALL DETAIL
AS ONE OF THE MEMBERS THEREOF A LAW MEMBER, WHO SHALL BE AN OFFICER OF
THE JUDGE ADVOCATE GENERAL'S DEPARTMENT, EXCEPT THAT WHEN AN OFFICER OF
THAT DEPARTMENT IS NOT AVAILABLE FOR THE PURPOSE THE APPOINTING
AUTHORITY SHALL DETAIL INSTEAD AN OFFICER OF SOME OTHER BRANCH OF THE
SERVICE SELECTED BY THE APPOINTING AUTHORITY AS SPECIALLY QUALIFIED TO
PERFORM THE DUTIES OF LAW MEMBER.  ...  "  41 STAT. 788, 10 U.S.C. SEC.
1479.  THE 8TH ARTICLE WAS AMENDED SUBSTANTIALLY IN 1948, 62 STAT. 628
629.  SEE NOTE 5, INFRA. 

FN4  THE RELEVANT LEGISLATIVE HISTORY OF THE PROVISION OF THE 8TH
ARTICLE RELATING TO THE LAW MEMBER SUPPORTS THIS INTERPRETATION.  PRIOR
TO THE ADOPTION OF THE 8TH ARTICLE OF WAR IN 1920, MILITARY LAW DID NOT
PROVIDE FOR THE SERVICE OF A LAW MEMBER ON A COURT-MARTIAL.  UNDER THE
IMPETUS FOR REFORM FOLLOWING WORLD WAR I, THE ORIGINAL DRAFT OF WHAT
BECAME THE 8TH ARTICLE PROVIDED THAT EVERY GENERAL COURT-MARTIAL SHOULD
HAVE A JUDGE ADVOCATE WHOSE DUTIES WERE TO BE SIMILAR TO THOSE OF THE
"LAW MEMBER," AS FINALLY PROVIDED FOR.  THE PROPOSED ARTICLE WOULD HAVE
PROVIDED FURTHER THAT SUCH JUDGE ADVOCATE OF THE COURT BE A MEMBER OF
THE JUDGE ADVOCATE GENERAL'S DEPARTMENT OR AN OFFICER WHOSE
QUALIFICATIONS WERE APPROVED BY THE JUDGE ADVOCATE GENERAL.  HEARINGS
ON S. 64, SUBCOMMITTEE OF THE SENATE COMMITTEE ON MILITARY AFFAIRS,
66TH CONG., 1ST SESS., P. 5.  THE PROPOSED ARTICLE WAS, HOWEVER,
ABANDONED FOR THE PROVISIONS OF THE 8TH ARTICLE.  SEE 18 B.R. 349, 366
367(1943). 

FN5  THE 8TH ARTICLE OF WAR, AS IN FORCE SINCE FEBRUARY 1, 1949,
EXPRESSLY IMPOSES AS A JURISDICTIONAL REQUIREMENT THAT THE LAW MEMBER
BE AN OFFICER FROM THE JUDGE ADVOCATE GENERAL'S DEPARTMENT OR AN
OFFICER WHOSE QUALIFICATION FOR SUCH DETAIL HAS BEEN CERTIFIED BY THE
JUDGE ADVOCATE GENERAL.  62 STAT. 628-629. 

FN6  THE FOLLOWING INSTANCES OF ERROR IN THE MILITARY PROCEEDINGS
WERE CITED BY THE COURT OF APPEALS: 

"(1)  ACCUSED WAS CONVICTED ON THE THEORY THAT ALTHOUGH HE WAS ON
DUTY AS A SENTRY AT THE TIME OF THE OFFENSE, IT WAS INCUMBENT UPON HIM
TO RETREAT FROM HIS POST OF DUTY. 

"(2)  ACCUSED HAS BEEN CONVICTED OF MURDER ON EVIDENCE THAT DOES NOT
MEASURE TO MALICE, PREMEDITATION, OR DELIBERATION. 

"(3)  THE RECORD REVEALS THAT THE LAW MEMBER APPOINTED WAS GROSSLY
INCOMPETENT. 

"(4)  THERE WAS NO PRE-TRIAL INVESTIGATION WHATEVER UPON THE CHARGE
OF MURDER. 

"(5)  THE RECORD SHOWS THAT COUNSEL APPOINTED TO DEFEND THE ACCUSED
WAS INCOMPETENT, GAVE NO PREPARATION TO THE CASE, AND SUBMITTED ONLY A
TOKEN DEFENSE. 

"(6)  THE APPELLATE REVIEWS BY THE ARMY REVIEWING AUTHORITIES REVEAL
A TOTAL MISCONCEPTION OF THE APPLICABLE LAW."  175 F.2D AT 277. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BURTON, CONCURRING. 

I CONCUR ON THE GROUND THAT THE CLAUSE IN THE 8TH ARTICLE OF WAR,
WHICH DEALS WITH THE AVAILABILITY OF AN OFFICER OF THE JUDGE ADVOCATE
GENERAL'S DEPARTMENT AND IS HERE AT ISSUE, IS PURELY DIRECTORY, AND NOT
JURISDICTIONAL.  THE 8TH ARTICLE, IN ANY EVENT, CALLS FOR THE
APPOINTMENT AS THE LAW MEMBER OF A GENERAL COURT-MARTIAL OF AN OFFICER
MEETING CERTAIN SPECIFICATIONS.  HE MUST BE EITHER AN OFFICER OF THE
JUDGE ADVOCATE GENERAL'S DEPARTMENT OR HE MUST BE SELECTED BY THE
APPOINTING AUTHORITY AS SPECIALLY QUALIFIED FOR HIS DUTIES.  THE
UNAVAILABILITY OF AN OFFICER OF THE JUDGE ADVOCATE GENERAL'S DEPARTMENT
MERELY OPENS THE FIELD OF ELIGIBILITY TO OTHER BRANCHES OF THE
SERVICE.    IT MAY BE ASSUMED THAT, WHEN THE GENERAL COURT-MARTIAL
INVOLVED IN THIS CASE WAS APPOINTED, IT WAS A JURISDICTIONAL
REQUIREMENT THAT THERE BE A LAW MEMBER APPOINTED TO IT.  IT ALSO MAY BE
ASSUMED THAT IT WAS A JURISDICTIONAL REQUIREMENT THAT, IF THE
APPOINTING AUTHORITY DETERMINED THAT NO OFFICER OF THE JUDGE ADVOCATE
GENERAL'S DEPARTMENT WAS THEN "AVAILABLE FOR THE PURPOSE," SUCH
AUTHORITY WAS RESTRICTED TO THE APPOINTMENT OF "AN OFFICER OF SOME
OTHER BRANCH OF THE SERVICE SELECTED BY (HIM)  ...  AS SPECIALLY
QUALIFIED TO PERFORM THE DUTIES OF LAW MEMBER."  IF THE OFFICER WHO WAS
APPOINTED MET NEITHER REQUIREMENT, IT MAY BE ASSUMED THAT THE COURT
MARTIAL WOULD HAVE BEEN WITHOUT JURISDICTION.  IF, HOWEVER, AS IN THIS
CASE, IT IS NOT QUESTIONED THAT THE LAW MEMBER MET THE SECOND
REQUIREMENT, I BELIEVE THAT WE SHOULD NOT PERMIT A REVIEW HERE OF THE
DISCRETION USED BY THE APPOINTING AUTHORITY IN DETERMINING THE
PRELIMINARY ADMINISTRATIVE QUESTION OF WHETHER OR NOT AN OFFICER OF THE
JUDGE ADVOCATE GENERAL'S DEPARTMENT WAS "AVAILABLE FOR THE PURPOSE." 
WE SHOULD NOT PERMIT IT, EVEN IF IT IS ALLEGED THAT THE APPOINTING
AUTHORITY'S DISCRETION IN THIS REGARD WAS GROSSLY ABUSED.  THAT DETAIL
WAS A MATTER WITHIN HIS ADMINISTRATIVE RESPONSIBILITY AND SHOULD NOT BE
AVAILABLE AS A BASIS FOR COLLATERAL ATTACK UPON THE JURISDICTION OF AN
OTHERWISE QUALIFIED AND COMPETENT GENERAL COURT-MARTIAL. 
..END :

















REIDER V. THOMPSON, 339 U.S. 113 


NO. 403.  ARGUED FEBRUARY 7, 1950.  - DECIDED MARCH 13, 1950.  - 176
F.2D 13, REVERSED. 


RESPONDENT RAILROAD RECEIVED GOODS AT NEW ORLEANS, LA., FOR
TRANSPORTATION TO BOSTON, MASS., BY WAY OF ITS LINE AND CONNECTING
CARRIERS, AND ISSUED ITS ORIGINAL THROUGH BILL OF LADING FOR THE
SHIPMENT.  PETITIONER SUED RESPONDENT FOR DAMAGES UNDER THE CARMACK
AMENDMENT, 49 U.S.C. SEC. 20(11), ALLEGING THAT PETITIONER WAS THE
LAWFUL HOLDER OF THE BILL OF LADING AND OWNER OF THE GOODS, THAT THE
SHIPMENT WAS IN GOOD ORDER AND CONDITION WHEN RECEIVED BY RESPONDENT AT
NEW ORLEANS, AND THAT IT ARRIVED AT BOSTON DAMAGED.  HELD: 

1.  THE CARMACK AMENDMENT WAS APPLICABLE TO THE SHIPMENT, AND
PETITIONER STATED A CLAIM AGAINST RESPONDENT UPON WHICH RELIEF COULD BE
GRANTED.  PP. 115-119. 

2.  THE FACT THAT THE SHIPMENT ORIGINATED IN A FOREIGN COUNTRY, AND
THAT THE GOODS WERE TRANSPORTED TO NEW ORLEANS ON AN OCEAN BILL OF
LADING, DID NOT RENDER THE CARMACK AMENDMENT INAPPLICABLE, SINCE THERE
WAS NO THROUGH BILL OF LADING FROM THE FOREIGN COUNTRY TO BOSTON AND
THE FOREIGN PORTION OF THE JOURNEY TERMINATED AT NEW ORLEANS.  PP. 117
119. 

3.  WITH RESPECT TO THIS TRANSACTION, RESPONDENT WAS THE RECEIVING
CARRIER WITHIN THE WORDING AND MEANING OF THE CARMACK AMENDMENT.  P.
119. 

REIDER V. THOMPSON, TRUSTEE, MISSOURI PACIFIC RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PETITIONER'S SUIT AGAINST RESPONDENT FOR DAMAGES UNDER THE CARMACK
AMENDMENT, 49 U.S.C. SEC. 20(11), WAS DISMISSED BY THE DISTRICT COURT
FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED.  THE
COURT OF APPEALS AFFIRMED.  176 F.2D 13.  THIS COURT GRANTED
CERTIORARI.  338 U.S. 890.  REVERSED, P. 119. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER A CLAIM FOR RELIEF UNDER THE SO
CALLED CARMACK AMENDMENT TO THE INTERSTATE COMMERCE ACT HAS BEEN STATED
AGAINST RESPONDENT CARRIER.  THE DISTRICT COURT HELD THAT A CLAIM
WITHIN THE AMENDMENT HAD NOT BEEN STATED.  THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT AFFIRMED BY A DIVIDED COURT.  176 F.2D 13.  BECAUSE THE
CASE PRESENTS AN ISSUE OF IMPORTANCE IN THE APPLICATION OF A FEDERAL
STATUTE GOVERNING LIABILITY OF COMMON CARRIERS FOR DAMAGE TO GOODS
TRANSPORTED BY THEM, WE GRANTED CERTIORARI.  338 U.S. 890. 

THE CARMACK AMENDMENT IN PERTINENT PART PROVIDES: 

"ANY COMMON CARRIER, RAILROAD, OR TRANSPORTATION COMPANY SUBJECT TO
THE PROVISIONS OF THIS CHAPTER RECEIVING PROPERTY FOR TRANSPORTATION
FROM A POINT IN ONE STATE OR TERRITORY OR THE DISTRICT OF COLUMBIA TO A
POINT IN ANOTHER STATE, TERRITORY, DISTRICT OF COLUMBIA, OR FROM ANY
POINT IN THE UNITED STATES TO A POINT IN AN ADJACENT FOREIGN COUNTRY
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 OR BY ANY COMMON CARRIER, RAILROAD, OR
TRANSPORTATION COMPANY TO WHICH SUCH PROPERTY MAY BE DELIVERED OR OVER
WHOSE LINE OR LINES SUCH PROPERTY MAY PASS WITHIN THE UNITED STATES OR
WITHIN AN ADJACENT FOREIGN COUNTRY WHEN TRANSPORTED ON A THROUGH BILL
OF LADING ...  "  34 STAT. 593, 595, AS AMENDED, 49 U.S.C. SEC.
20(11). 

RESPONDENT RAILROAD RECEIVED A SHIPMENT OF WOOL AND SKINS AT NEW
ORLEANS, LOUISIANA, FOR TRANSPORTATION TO BOSTON, MASSACHUSETTS, BY WAY
OF ITS LINE AND CONNECTING CARRIERS, AND ISSUED ITS ORIGINAL THROUGH
BILL OF LADING FOR THE SHIPMENT.  PETITIONER, WHO ALLEGED THAT HE WAS
THE LAWFUL HOLDER OF THE BILL OF LADING AND OWNER OF THE GOODS, SUED
RESPONDENT, AS RECEIVING CARRIER UNDER THE CARMACK AMENDMENT, FOR
DAMAGES, ASSERTING THAT THE SHIPMENT WAS IN GOOD ORDER AND CONDITION
WHEN RECEIVED BY RESPONDENT AT NEW ORLEANS AND WAS DAMAGED ON ARRIVAL
IN BOSTON.  RESPONDENT FILED A MOTION TO DISMISS ON THE GROUND THAT THE
COMPLAINT DID NOT STATE A CLAIM AGAINST RESPONDENT UPON WHICH RELIEF
COULD BE GRANTED.  THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S
ORDER GRANTING THIS MOTION AND DISMISSING THE SUIT. 

IT IS NOT DISPUTED THAT IF THESE WERE ALL THE FACTS IN THE CASE THE
COURTS BELOW WERE IN ERROR.  CLEARLY RESPONDENT IS A COMMON CARRIER
SUBJECT TO THE ACT, AND A CLAIM FOR RELIEF AGAINST RESPONDENT, AS
RECEIVING CARRIER, ON ACCOUNT OF DAMAGE TO A SHIPMENT OF GOODS MOVING
FROM A POINT IN ONE STATE TO A POINT IN ANOTHER STATE WAS PLEADED UNDER
THE CARMACK AMENDMENT.  SEE GALVESTON, H. & S.A.R. CO. V. WALLACE, 223
U.S. 481.  BUT FROM A STIPULATION FILED IN THE DISTRICT COURT AND
CONSIDERED WITH THE PLEADINGS, WE LEARN THAT THE SHIPMENT ORIGINATED IN
BUENOS AIRES, ARGENTINA.  THE GOODS WERE TRANSPORTED BY STEAMSHIP FROM
THERE TO NEW ORLEANS ON AN OCEAN BILL OF LADING, FREIGHT FOR WHICH WAS
PAYABLE AT BUENOS AIRES.  WHAT IS STIPULATED TO BE AN ACCURATE ENGLISH
TRANSLATION OF THE OCEAN BILL OF LADING READS IN PART: 

"THE SHIPPER, SHIP, CONSIGNEE, DESTINATION AND GOODS WHICH ARE
SPECIFIED IN THIS BILL OF LADING ARE THE FOLLOWING: 

SHIPPER:  EMILIO ROSLER S.R.L.       SHIP:  RIO PARANA 

.         .         .         .         . 

PORT OF SHIPMENT:  BUENOS AIRES 

PORT OF DISCHARGE OF THE SHIP NEW ORLEANS 

DESTINATION OF THE GOODS:  --------------------(IF THE GOODS ARE TO
BE TRANSSHIPPED OUT OF THE PORT OF DISCHARGE) 

SHIPPER TO THE ORDER OF:  THE FIRST NATIONAL BANK OF BOSTON 

NOTICE OF ARRIVAL SHOULD BE ADDRESSED TO (IF CONSIGNED TO SHIPPER'S
ORDER) RUDOLF REIDER 39 SOUTH STREET BOSTON MASS. U.S.A." 

THE DOMESTIC BILL OF LADING ISSUED BY RESPONDENT AT NEW ORLEANS
RECITED THAT THE GOODS WERE RECEIVED FROM H.P. LAMBERT CO. AND
CONSIGNED TO THE SAME H.P. LAMBERT CO. AT BOSTON.  THE COURT OF APPEALS
CHARACTERIZED THIS RAILROAD BILL AS A "SUPPLEMENTAL BILL OF LADING"
ISSUED BY THE DOMESTIC CARRIER TO COVER IT PORTION OF THE
TRANSPORTATION AND DELIVERY OF A "THROUGH FOREIGN SHIPMENT," AND HELD
THAT THE CARMACK AMENDMENT WAS NOT INTENDED TO APPLY TO SUCH A FOREIGN
SHIPMENT.  THE TESTS LAID DOWN IN UNITED STATES V. ERIE R. CO., 280
U.S. 98, AND TEXAS & NEW ORLEANS R. CO. V. SABINE TRAM CO., 227 U.S.
111, WERE APPLIED BY THE COURT OF APPEALS IN DETERMINING THAT THE
TRANSACTION WAS A "THROUGH FOREIGN SHIPMENT."  AND MISSOURI PACIFIC R.
CO. V. PORTER, 273 U.S. 341, WAS RELIED ON AS AUTHORITY FOR THE
PROPOSITION THAT THE CARMACK AMENDMENT WAS NOT INTENDED TO APPLY TO
SUCH A SHIPMENT. 

RELIANCE ON THE CITED CASES IS MISPLACED.  THE ISSUE IN THE PORTER
CASE, SUPRA, WAS TOTALLY DIFFERENT FROM THE QUESTION HERE.  FN1  AND
WHETHER THE COMMERCE IS PROPERLY CHARACTERIZED AS FOREIGN OR DOMESTIC
IS, IN OUR VIEW OF THE CASE, NOT MATERIAL. 

THE ISSUE IS WHETHER THIS TRANSACTION IS WITHIN THE CARMACK
AMENDMENT.  BUT BASICALLY, THE PROBLEM HERE IS ONE OF LIABILITY.  THE
CONTRACT GIVING RISE TO LIABILITY - THE BILL OF LADING - IS OUR PRIMARY
AID IN SOLVING THAT PROBLEM.  SO WE TURN TO THE CONTRACT TO ASCERTAIN
WHETHER IT EVIDENCES A TRANSACTION WITHIN THE CARMACK AMENDMENT. 

DOES THE FACT THAT THE SHIPMENT IN THIS CASE ORIGINATED IN A FOREIGN
COUNTRY TAKE IT WITHOUT THE CARMACK AMENDMENT?  WE THINK NOT.  THERE
WAS NO THROUGH BILL OF LADING FROM BUENOS AIRES TO BOSTON.  THE RECORD
DOES NOT SHOW THE SLIGHTEST PRIVITY BETWEEN RESPONDENT AND THE OCEAN
CARRIER.  THE CONTRACT FOR OCEAN TRANSPORTATION TERMINATED AT NEW
ORLEANS.  HAVING TERMINATED, NOTHING OF IT REMAINED FOR THE NEW,
SEPARATE, AND DISTINCT DOMESTIC CONTRACT OF CARRIAGE TO "SUPPLEMENT." 
EVEN THE PARTIES TO THE OCEAN BILL OF LADING AND THE DOMESTIC BILL OF
LADING WERE DIFFERENT.  IF THE VARIOUS PARTIES DEALING WITH THIS
SHIPMENT SEPARATED THE CARRIAGE INTO DISTINCT PORTIONS BY THEIR
CONTRACTS, IT IS NOT FOR COURTS JUDICIALLY TO MELD THE PORTIONS INTO
SOMETHING THEY ARE NOT.  THE TEST IS NOT WHERE THE SHIPMENT ORIGINATED,
BUT WHERE THE OBLIGATION OF THE CARRIER AS RECEIVING CARRIER
ORIGINATED.  RICE V. OREGON SHORT LINE R. CO., 33 IDAHO 565, 198 P.
161; BARRETT V. NORTHERN PACIFIC R. CO., 29 IDAHO 139, 157 P. 1016;
BALTIMORE & OHIO R. CO. V. MONTGOMERY & CO., 19 GA. APP. 29, 90 S.E.
740.  THUS IT IS NOT SIGNIFICANT THAT THE SHIPMENT IN THIS CASE
ORIGINATED IN A FOREIGN COUNTRY, SINCE THE FOREIGN PORTION OF THE
JOURNEY TERMINATED AT THE BORDER OF THE UNITED STATES.  THE OBLIGATION
AS RECEIVING CARRIER ORIGINATED WHEN RESPONDENT ISSUED ITS ORIGINAL
THROUGH BILL OF LADING AT NEW ORLEANS.  THAT CONTRACT OF CARRIAGE WAS
SQUARELY WITHIN THE PROVISIONS OF THE STATUTE. 

THE CASE OF ALWINE V. PENNSYLVANIA R. CO., 141 PA. SUPER.  558, 15
A.2D 507, MUCH RELIED UPON BY RESPONDENT AND THE COURT OF APPEALS, IS
NOT IN POINT.  WE NEED NOT NOW DETERMINE WHETHER THAT CASE WAS
CORRECTLY DECIDED.  FOR PURPOSES OF THIS CASE IT IS SUFFICIENT TO NOTE
THAT THERE THE PENNSYLVANIA COURT EMPHASIZED THAT THE SHIPMENT CAME
INTO THIS COUNTRY ON A THROUGH BILL OF LADING FROM CANADA.  THE
CONTRACT OF CARRIAGE DID NOT TERMINATE AT THE BORDER, AS IN THE INSTANT
CASE.  NOR DOES MEXICAN LIGHT & POWER CO. V. TEXAS MEXICAN R. CO., 331
U.S. 731, AID RESPONDENT.  THERE AN EXPORT SHIPMENT ON A THROUGH BILL
OF LADING FROM PENNSYLVANIA TO THE INTERNATIONAL BOUNDARY, DESTINED FOR
A POINT IN MEXICO, WAS DAMAGED IN MEXICO.  THE TEXAS MEXICAN CO., THE
LAST IN A SERIES OF CARRIERS HANDLING THE SHIPMENT IN THIS COUNTRY,
ISSUED A SECOND BILL OF LADING AT LAREDO, TEXAS, FOR THE CARRIAGE ON
INTO MEXICO.  RECOVERY WAS SOUGHT AGAINST THE TEXAS MEXICAN CO. AS
INITIAL (RECEIVING) CARRIER UNDER THE CARMACK AMENDMENT.  THIS COURT
HELD THAT IT WAS NOT A RECEIVING CARRIER BECAUSE ITS DUTIES WERE
CONTROLLED BY THE FIRST BILL, AND THE SECOND BILL WAS WITHOUT
CONSIDERATION AND VOID.  AS THE DISSENTING JUDGE BELOW SAID:  "THAT
CASE RULES NOTHING AS TO A REVERSE SHIPMENT  ...  "  AND IT COULD
HARDLY BE CONTENDED THAT RESPONDENT'S DOMESTIC BILL OF LADING HERE WAS
VOID.  AS A MATTER OF FACT, THE SHIPMENT IN THIS CASE COULD NOT HAVE
MOVED AN INCH BEYOND NEW ORLEANS UNDER THE OCEAN BILL; AND THE CARMACK
AMENDMENT REQUIRED RESPONDENT TO ISSUE A THROUGH BILL OF LADING FOR THE
CARRIAGE FROM NEW ORLEANS TO BOSTON. 

WE DISAVOW, AS DID BOTH THE CONCURRING JUDGE AND THE DISSENTING JUDGE
BELOW, ANY INTIMATION THAT OUR HOLDING MIGHT IMPOSE LIABILITY ON A
DOMESTIC CARRIER FOR DAMAGE ATTRIBUTABLE TO AN OCEAN CARRIER.  THE
COMPLAINT IN THIS CASE ALLEGES THAT THE SHIPMENT WAS RECEIVED BY
RESPONDENT IN GOOD ORDER AND CONDITION AND WAS DAMAGED WHEN DELIVERED. 
UNLESS PETITIONER CAN PROVE THE CASE STATED BY HIS COMPLAINT,
RESPONDENT IS NOT LIABLE. 

THE PURPOSE OF THE CARMACK AMENDMENT WAS TO RELIEVE SHIPPERS OF THE
BURDEN OF SEARCHING OUT A PARTICULAR NEGLIGENT CARRIER FROM AMONG THE
OFTEN NUMEROUS CARRIERS HANDLING AN INTERSTATE SHIPMENT OF GOODS.  TO
HOLD OTHERWISE THAN WE DO WOULD IMMUNIZE FROM THE BENEFICIAL PROVISIONS
OF THE AMENDMENT ALL SHIPMENTS ORIGINATING IN A FOREIGN COUNTRY WHEN
RESHIPPED VIA THE VERY TRANSPORTATION CHAIN WITH WHICH THE AMENDMENT
WAS MOST CONCERNED.  RESPONDENT WAS THE RECEIVING CARRIER SQUARELY
WITHIN THE WORDING AND MEANING OF THE CARMACK AMENDMENT.  THE JUDGMENT
OF THE COURT OF APPEALS IS REVERSED. 

FN1  THE COURT THERE BRIEFLY ALLUDED TO THE COVERAGE OF THE CARMACK
AMENDMENT.  BUT THE SOLE ISSUE IN THE PORTER CASE WAS WHETHER FEDERAL
REGULATION OF BILLS OF LADING HAD COVERED THE FIELD TO THE EXCLUSION OF
STATE REGULATION OF THE SAME SUBJECT MATTER.  THE COURT'S DISCUSSION OF
THE CARMACK AMENDMENT THERE DOES NOT CONTROL OUR DECISION IN THIS
CASE. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE PROBLEM PRESENTED BY THIS CASE IS WHETHER A SHIPMENT WHICH
CONSTITUTES AN ORGANIC TRANSACTION IN COMMERCE BETWEEN A NON-ADJACENT
FOREIGN COUNTRY AND THE CONTINENTAL UNITED STATES FOR EVERY OTHER
ASPECT OF THE INTERSTATE COMMERCE ACT SHOULD BE TREATED AS SUCH FOR
PURPOSES OF SEC. 20(11) OF THAT ACT, FAMILIARLY KNOWN AS THE CARMACK
AMENDMENT.  49 U.S.C. SEC. 20(11).  SINCE I AGREE WITH THE ANSWER GIVEN
BY THE COURT OF APPEALS I OUGHT NOT TO JOIN IN REVERSING ITS DECISION. 

THAT COURT'S POSITION IS SUPPORTED BY THIS COURT'S VIEW OF THE MATTER
IN MISSOURI PACIFIC R. CO. V. PORTER, 273 U.S. 341, 344, 345, READ IN
THE LIGHT OF THE CRITERIA FOR DETERMINING WHAT CONSTITUTES A SHIPMENT
IN FOREIGN COMMERCE.  SEE UNITED STATES V. ERIE R. CO., 280 U.S. 98. 
TO BE SURE, THE PRECISE QUESTION NOW HERE WAS NOT THE ISSUE IN THE
PORTER CASE.  BUT WHAT WAS THERE SAID AS TO THE SCOPE OF THE CARMACK
AMENDMENT IN RELATION TO SUCH COMMERCE WITH A NON-ADJACENT FOREIGN
COUNTRY WAS RELEVANT TO THE IMMEDIATE QUESTION IN THE PORTER CASE
CONSIDERED IN ITS TRUE ASPECT.  IN ORDER TO DECIDE THE PRECISE QUESTION
OF THAT CASE THE COURT HAD TO CONSIDER THE REGULATORY SCHEME OF
LIABILITY UNDER THE INTERSTATE COMMERCE ACT IN ITS ENTIRETY.  THE
CONCLUSION OF THE PORTER CASE - THAT THE CARMACK AMENDMENT DOES NOT
APPLY TO AN UNBROKEN TRANSACTION OF COMMERCE WITH A NONADJACENT FOREIGN
COUNTRY - CARRIED THE AUTHORITY OF THE TWO JUSTICES, BUTLER AND
BRANDEIS, WHO BETWEEN THEM HAD HAD THE MOST COMPREHENSIVE EXPERIENCE
WITH THE WORKING OF THE INTERSTATE COMMERCE ACT.  AS JUDGE HUTCHESON
INDICATED IN HIS CONCURRING OPINION BELOW, THE ANSWER TO OUR PROBLEM IS
NOT TO BE HAD BY TAKING WORDS OF THE CARMACK AMENDMENT OUT OF THE
ILLUMINATING CONTEXT OF THE REGULATORY SCHEME OF WHICH THEY ARE A
PART.  A LEGAL FAGGOT OUGHT NOT TO BE BROKEN INTO VERBAL STICKS. 
..END :





DISTRICT OF COLUMBIA V. LITTLE, 339 U.S. 1 


NO. 302.  ARGUED JANUARY 11-12, 1950.  - DECIDED FEBRUARY 20, 1950.  -
85 U.S. APP. D.C. 242, 178 F.2D 13, AFFIRMED ON OTHER GROUNDS. 


RECEIVING INFORMATION THAT RESPONDENT'S HOME WAS IN AN UNSANITARY
CONDITION, A HEALTH OFFICER WENT THERE, WITHOUT A SEARCH WARRANT, FOR
THE PURPOSE OF INSPECTING IT.  RESPONDENT WAS AWAY AND THE DOOR WAS
LOCKED; BUT SHE RETURNED WHILE THE OFFICER WAS STANDING OUTSIDE THE
DOOR.  SHE PROTESTED HIS RIGHT TO ENTER, CLAIMING THAT IT WOULD VIOLATE
HER CONSTITUTIONAL RIGHTS, AND SHE REFUSED TO UNLOCK THE DOOR; BUT SHE
NEITHER USED NOR THREATENED FORCE OF ANY KIND.  SHE WAS CONVICTED OF
VIOLATING A DISTRICT OF COLUMBIA REGULATION MAKING IT A MISDEMEANOR TO
INTERFERE WITH OR PREVENT THE INSPECTION OF ANY BUILDING REPORTED TO BE
IN AN UNSANITARY CONDITION.  HELD: 

1.  RESPONDENT'S MERE REFUSAL TO UNLOCK THE DOOR ON SUBSTANTIAL
CONSTITUTIONAL GROUNDS WAS NOT THE KIND OF INTERFERENCE PROHIBITED BY
THE REGULATION.  PP. 4-7. 

2.  THE FOREGOING CONCLUSION MAKES IT UNNECESSARY TO DECIDE WHETHER
THE FOURTH AMENDMENT FORBADE THE HEALTH OFFICER TO ENTER RESPONDENT'S
HOME WITHOUT A SEARCH WARRANT.  PP. 3-4. 

DISTRICT OF COLUMBIA V. LITTLE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

RESPONDENT WAS CONVICTED OF VIOLATING A DISTRICT OF COLUMBIA
REGULATION MAKING IT A MISDEMEANOR TO INTERFERE WITH OR PREVENT THE
INSPECTION OF A BUILDING REPORTED TO BE IN AN UNSANITARY CONDITION. 
THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA REVERSED ON
CONSTITUTIONAL GROUNDS.  62 A.2D 874.  THE COURT OF APPEALS AFFIRMED. 
85 U.S. APP. D.C. 242, 178 F.2D 13.  THIS COURT GRANTED CERTIORARI. 
338 U.S. 866.  AFFIRMED ON OTHER GROUNDS, P. 7. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AN INFORMATION WAS FILED AGAINST THE RESPONDENT GERALDINE LITTLE IN
THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA CHARGING THAT SHE HAD
INTERFERED WITH A DISTRICT HEALTH DEPARTMENT INSPECTOR IN THE
PERFORMANCE OF HIS OFFICIAL DUTIES.  THE EVIDENCE SHOWED THAT
RESPONDENT HAD TOLD THE HEALTH OFFICER, WHO HAD NO SEARCH WARRANT, NOT
TO ENTER HER HOME TO INSPECT ITS SANITARY CONDITION; SHE HAD ALSO
REFUSED TO UNLOCK HER DOOR.  SHE WAS CONVICTED AND FINED $25.  THE
MUNICIPAL COURT OF APPEALS REVERSED, HOLDING THAT THE FOURTH
AMENDMENT'S PROHIBITION AGAINST UNREASONABLE SEARCHES AND SEIZURES
FORBADE THE HEALTH OFFICER TO ENTER RESPONDENT'S PRIVATE HOME WITHOUT A
SEARCH WARRANT.  62 A.2D 874.  THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED ON THE SAME GROUNDS.  85 U.S.
APP. D.C. 242, 178 F.2D 13.  THE CASE RAISES IMPORTANT QUESTIONS
CONCERNING LEGAL PROVISIONS FOR PROTECTING THE HEALTH OF THE PEOPLE BY
SPECIAL AND PERIODIC INSPECTION AND ELIMINATION OF POTENTIAL SOURCES OF
DISEASE.  WE GRANTED CERTIORARI, 338 U.S. 866. 

IN THIS COURT THE CONSTITUTIONAL ARGUMENTS HAVE EXTENDED FAR BEYOND
THE COMPARATIVELY NARROW ISSUES INVOLVED IN THE PARTICULAR CASE.  AT
ONE EXTREME THE DISTRICT ARGUES THAT THE FOURTH AMENDMENT HAS NO
APPLICATION WHATEVER TO INSPECTIONS AND INVESTIGATIONS MADE BY HEALTH
OFFICERS; THAT TO PRESERVE THE PUBLIC HEALTH, OFFICERS MAY WITHOUT
JUDICIAL WARRANTS ENTER PREMISES, PUBLIC BUILDINGS AND PRIVATE
RESIDENCES AT ANY REASONABLE HOUR, WITH OR WITHOUT THE OWNER'S
CONSENT.  AT THE OPPOSITE EXTREME, IT IS ARGUED THAT NO SANITARY
INSPECTION CAN EVER BE MADE BY HEALTH OFFICERS WITHOUT A SEARCH
WARRANT, EXCEPT WITH A PROPERTY OWNER'S CONSENT.  BETWEEN THESE TWO
EXTREMES ARE SUGGESTIONS THAT THE FOURTH AMENDMENT REQUIRES SEARCH
WARRANTS TO INSPECT PREMISES WHERE THE OBJECT OF INSPECTIONS IS TO
OBTAIN EVIDENCE FOR CRIMINAL PUNISHMENT OR WHERE THERE ARE CONDITIONS
IMMINENTLY DANGEROUS TO LIFE AND HEALTH, BUT THAT MUNICIPALITIES AND
OTHER GOVERNING AGENCIES MAY LAWFULLY PROVIDE FOR GENERAL ROUTINE
INSPECTIONS AT REASONABLE HOURS WITHOUT SEARCH WARRANTS.  AN IMPRESSIVE
ARRAY OF FACTS IS ALSO PRESENTED CONCERNING THE UNIFORM PRACTICES OF
AGENCIES OF LOCAL GOVERNMENTS TO PROVIDE FOR SUCH GENERAL ROUTINE
INSPECTIONS IN CONNECTION WITH SANITATION, PLUMBING, BUILDINGS, ETC. 

NEITHER THE FACTS OF THIS CASE, NOR THE DISTRICT LAW ON WHICH THE
PROSECUTION RESTS, PROVIDE A BASIS FOR A SWEEPING DETERMINATION OF THE
FOURTH AMENDMENT'S APPLICATION TO ALL THESE VARIED TYPES OF
INVESTIGATIONS, INSPECTIONS AND SEARCHES.  YET A DECISION OF THE
CONSTITUTIONAL REQUIREMENT FOR A SEARCH IN THIS PARTICULAR CASE MIGHT
HAVE FAR-REACHING AND UNEXPECTED IMPLICATIONS AS TO CLOSELY RELATED
QUESTIONS NOT NOW BEFORE US.  THIS IS THEREFORE AN APPROPRIATE CASE IN
WHICH TO APPLY OUR SOUND GENERAL POLICY AGAINST DECIDING CONSTITUTIONAL
QUESTIONS IF THE RECORD PERMITS FINAL DISPOSITION OF A CAUSE ON NON
CONSTITUTIONAL GROUNDS.  SEE RESCUE ARMY V. MUNICIPAL COURT, 331 U.S.
549, 568-575, AND CASES THERE CITED.  APPLYING THIS POLICY, WE FIND IT
UNNECESSARY TO DECIDE WHETHER THE FOURTH AMENDMENT REQUIRED A SEARCH
WARRANT HERE.  FOR EVEN IF THE HEALTH OFFICER HAD A LAWFUL RIGHT TO
INSPECT THE PREMISES WITHOUT A WARRANT, WE ARE PERSUADED THAT
RESPONDENT'S STATEMENTS TO THE OFFICER WERE NOT AN "INTERFERENCE" THAT
MADE HER GUILTY OF A MISDEMEANOR UNDER THE CONTROLLING DISTRICT LAW. 
FN1 

THE DISTRICT REGULATION WHICH RESPONDENT WAS CONVICTED OF VIOLATING
IS SET OUT IN PART BELOW.  FN2  IT REQUIRES THAT OCCUPANTS OF PREMISES
IN THE DISTRICT SHALL KEEP THEM "CLEAN AND WHOLESOME"; THAT HEALTH
OFFICERS SHALL "EXAMINE OR CAUSE TO BE EXAMINED ANY BUILDING SUPPOSED
OR REPORTED TO BE IN AN UNSANITARY CONDITION"; AND THAT "ANY PERSON
VIOLATING  ...  ANY OF THE PROVISIONS OF THESE REGULATIONS, OR
INTERFERING WITH OR PREVENTING ANY INSPECTION AUTHORIZED THEREBY, SHALL
BE DEEMED GUILTY OF A MISDEMEANOR  ...  "  AN OCCUPANT OF RESPONDENT'S
HOUSE REPORTED TO THE HEALTH OFFICER THAT CONDITIONS INSIDE HER HOME
WERE VERY FAR FROM "CLEAN AND WHOLESOME."  FN3  THE HEALTH OFFICER THEN
WENT TO RESPONDENT'S HOME.  SHE WAS AWAY AND THE DOOR WAS LOCKED.  THE
OFFICER HAD NO SEARCH WARRANT.  WHILE HE WAS STANDING OUTSIDE THE DOOR,
RESPONDENT RETURNED.  SHE PROTESTED THE RIGHT OF THE INSPECTOR TO ENTER
HER PRIVATE HOME, CLAIMING THAT HIS ENTRY WOULD VIOLATE HER
CONSTITUTIONAL RIGHTS.  SHE NEITHER USED NOR THREATENED FORCE OF ANY
KIND.  FN4  IN VIEW OF THESE FACTS FOUND BY THE COURTS BELOW, THE
QUESTION BOILS DOWN TO WHETHER RESPONDENT'S MERE REFUSAL TO UNLOCK THE
DOOR ACCOMPANIED BY REMONSTRANCES ON SUBSTANTIAL CONSTITUTIONAL GROUNDS
WAS THE KIND OF INTERFERENCE PROHIBITED BY THE REGULATION.  FN5  WE
HOLD THAT IT WAS NOT. 

ALTHOUGH FORCE OR THREATENED FORCE IS NOT ALWAYS AN INDISPENSABLE
INGREDIENT OF THE OFFENSE OF INTERFERING WITH AN OFFICER IN THE
DISCHARGE OF HIS DUTIES, MERE REMONSTRANCES OR EVEN CRITICISMS OF AN
OFFICER ARE NOT USUALLY HELD TO BE THE EQUIVALENT OF UNLAWFUL
INTERFERENCE.  FN6  NOR DOES ANY EXPRESS LANGUAGE IN THE DISTRICT
REGULATION CONTROLLING HERE IMPOSE ANY DUTY ON HOME OWNERS TO ASSIST
HEALTH OFFICERS TO ENTER AND INSPECT THEIR HOMES.  IT DOES NOT EVEN
PROHIBIT "HINDERING" OR "REFUSING TO PERMIT ANY LAWFUL INSPECTION," IN
SHARP CONTRAST WITH A SEPARATE INSPECTION STATUTE ENACTED BY CONGRESS
FOR THE DISTRICT WHICH ADDS THESE PHRASES TO PROHIBITIONS AGAINST
"INTERFERENCE" AND "PREVENTION."  FN7  THE WORD "INTERFERE" IN THIS
REGULATION CANNOT FAIRLY BE INTERPRETED TO ENCOMPASS RESPONDENT'S
FAILURE TO UNLOCK HER DOOR AND HER REMONSTRANCES ON CONSTITUTIONAL
GROUNDS. 

HAD THE RESPONDENT NOT OBJECTED TO THE OFFICER'S ENTRY OF HER HOUSE
WITHOUT A SEARCH WARRANT, SHE MIGHT THEREBY HAVE WAIVED HER
CONSTITUTIONAL OBJECTIONS.  FN8  THE RIGHT TO PRIVACY IN THE HOME HOLDS
TOO HIGH A PLACE IN OUR SYSTEM OF LAWS TO JUSTIFY A STATUTORY
INTERPRETATION THAT WOULD IMPOSE A CRIMINAL PUNISHMENT ON ONE WHO DOES
NOTHING MORE THAN RESPONDENT DID HERE.  THE JUDGMENT OF THE COURT OF
APPEALS AFFIRMING THE MUNICIPAL COURT OF APPEALS JUDGMENT SETTING ASIDE
THE CONVICTION IS AFFIRMED. 

FN1  THE LOWER COURTS, APPARENTLY PREOCCUPIED WITH THE CONSTITUTIONAL
ISSUE, DID NOT REFER TO THIS QUESTION.  ORDINARILY WE WOULD HESITATE TO
DECIDE QUESTIONS OF DISTRICT LAW ON WHICH THE COURTS OF THE DISTRICT
HAVE NOT SPOKEN.  SEE, E.G., GRIFFIN V. UNITED STATES, 336 U.S. 704,
718, AND CASES THERE CITED.  HERE, HOWEVER, THE INTERPRETATIVE QUESTION
IS SO ENMESHED WITH CONSTITUTIONAL ISSUES THAT COMPLETE DISPOSITION BY
THIS COURT IS IN ORDER. 

FN2  "2.  THAT IT SHALL BE THE DUTY OF EVERY PERSON OCCUPYING ANY
PREMISES, OR ANY PART OF ANY PREMISES, IN THE DISTRICT OF COLUMBIA, OR
IF SUCH PREMISES BE NOT OCCUPIED, OF THE OWNER THEREOF, TO KEEP SUCH
PREMISES OR PART  ...  CLEAN AND WHOLESOME; IF, UPON INSPECTION BY THE
HEALTH OFFICER OR AN INSPECTOR OF THE HEALTH DEPARTMENT IT BE
ASCERTAINED THAT ANY SUCH PREMISES, OR ANY PART THEREOF, OR ANY
BUILDING, YARD,  ...  IS NOT IN SUCH CONDITION AS HEREIN REQUIRED, THE
OCCUPANT OR OCCUPANTS OF SUCH PREMISES OR PART, OR THE OWNER THEREOF,
AS HEREINBEFORE SPECIFIED, SHALL BE NOTIFIED THEREOF AND REQUIRED TO
PLACE THE SAME IN A CLEAN AND WHOLESOME CONDITION; AND IN CASE ANY
PERSON SHALL FAIL OR NEGLECT TO PLACE SUCH PREMISES OR PART IN SUCH
CONDITION WITHIN THE TIME ALLOWED BY SAID NOTICE HE SHALL BE LIABLE TO
THE PENALTIES HEREINAFTER PROVIDED. 

     .         .         .         .         . 

"10.  THAT THE HEALTH OFFICER SHALL EXAMINE OR CAUSE TO BE EXAMINED
ANY BUILDING SUPPOSED OR REPORTED TO BE IN AN UNSANITARY CONDITION, AND
MAKE A RECORD OF SUCH EXAMINATION; ... 

.         .         .         .         . 

"12.  THAT ANY PERSON VIOLATING, OR AIDING OR ABETTING IN VIOLATING,
ANY OF THE PROVISIONS OF THESE REGULATIONS, OR INTERFERING WITH OR
PREVENTING ANY INSPECTION AUTHORIZED THEREBY, SHALL BE DEEMED GUILTY OF
A MISDEMEANOR, AND SHALL, UPON CONVICTION IN THE POLICE COURT, BE
PUNISHED BY A FINE OF NOT LESS THAN $5 NOR MORE THAN $45." 
COMMISSIONERS' REGULATIONS CONCERNING THE USE AND OCCUPANCY OF
BUILDINGS AND GROUNDS, PROMULGATED APRIL 22, 1897, AMENDED JULY 28,
1922. 

FN3  THE COMPLAINT WAS THAT "THERE WAS AN ACCUMULATION OF LOOSE AND
UNCOVERED GARBAGE AND TRASH IN THE HALLS OF SAID PREMISES AND THAT
CERTAIN OF THE PERSONS RESIDING THEREIN HAD FAILED TO AVAIL THEMSELVES
OF THE TOILET FACILITIES." 

FN4  THERE WAS EVIDENCE THAT SOME DISTANCE AWAY FROM THE HOME
RESPONDENT ATTEMPTED TO GRAB SOME PAPERS FROM THE OFFICER.  THE
MUNICIPAL COURT OF APPEALS AND THE COURT OF APPEALS FOR THE DISTRICT
BOTH HELD THAT THE INFORMATION ON WHICH RESPONDENT WAS CONVICTED WAS
NOT BASED ON THIS INCIDENT.  THOSE COURTS AND THE MUNICIPAL COURT IN
WHICH RESPONDENT WAS CONVICTED ALL TREATED THE CONVICTION AS HAVING
BEEN BASED ON RESPONDENT'S REFUSAL TO UNLOCK THE DOOR ON THE GROUND
THAT THE OFFICER WAS WITHOUT CONSTITUTIONAL RIGHT TO ENTER. 

FN5  THE INFORMATION CHARGED THAT RESPONDENT "DID  ...  HINDER,
OBSTRUCT, AND INTERFERE WITH AN INSPECTOR OF THE HEALTH DEPARTMENT  ...
"  THE REGULATION ON WHICH THE PROSECUTION WAS BASED DOES NOT INCLUDE
THE WORDS "HINDER" AND "OBSTRUCT."  THESE WORDS DO APPEAR IN AN ACT OF
CONGRESS WHICH PROVIDES FOR AN ABATEMENT OF NUISANCES IN THE DISTRICT
AND SPECIFICALLY AUTHORIZES PERSONS DELEGATED BY THE DISTRICT
COMMISSIONERS TO ENTER PREMISES "DURING ALL REASONABLE HOURS, TO
INSPECT THE SAME AND TO DO WHATEVER MAY BE NECESSARY TO CORRECT" A
CONDITION AMOUNTING TO A NUISANCE.  34 STAT. 115.  BUT THAT ACT IS NOT
INVOLVED IN THIS CASE. 

FN6  SEE CASES COLLECTED IN NOTES, 48 A.L.R. 746, 749, 755; ANN. CAS.
1914B, 814. 

FN7  "SEC.  11.  THAT NO PERSON SHALL INTERFERE WITH ANY MEMBER OF
THE BOARD FOR THE CONDEMNATION OF INSANITARY BUILDINGS OR WITH ANY
PERSON ACTING UNDER AUTHORITY AND BY DIRECTION OF SAID BOARD IN THE
DISCHARGE OF HIS LAWFUL DUTIES, NOR HINDER, PREVENT, OR REFUSE TO
PERMIT ANY LAWFUL INSPECTION OR THE PERFORMANCE OF ANY WORK AUTHORIZED
BY THIS ACT TO BE DONE BY OR BY AUTHORITY AND DIRECTION OF SAID
BOARD."  34 STAT. 157, 159. 

THERE IS ANOTHER INTERESTING DIFFERENCE BETWEEN THE ABOVE STATUTE AND
THE REGULATION HERE INVOLVED.  THE STATUTE EXPRESSLY LIMITS INSPECTION
TO THE HOURS BETWEEN 8 A.M. AND 5 P.M.; THE REGULATION HAS NO
LIMITATION OF THIS OR INDEED OF ANY OTHER TYPE, THOUGH PETITIONER
ADMITS THAT A REQUIREMENT OF "REASONABLENESS" SHOULD BE READ INTO IT.
SEE ALSO 49 STAT. 1917, 1919, SEC. 10. 

FN8  SEE COLLECTIONS CITED IN NOTE 6 SUPRA. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE REED CONCURS, DISSENTING. 

IF THIS COURT IS TO INTERPRET AN ORDINANCE OF THE DISTRICT OF
COLUMBIA, IT SEEMS TO ME THAT THE ACTION OF THE RESPONDENT WAS AN
EFFECTIVE INTERFERENCE WITH AN INSPECTOR OF THE DISTRICT HEALTH
DEPARTMENT IN THE PERFORMANCE OF HIS OFFICIAL DUTIES, AND THAT SUCH
CONDUCT OF THE RESPONDENT VIOLATED THE ORDINANCE THAT IS BEFORE US.  IN
MY OPINION, ALSO, THE DUTIES WHICH THE INSPECTOR WAS SEEKING TO
PERFORM, UNDER THE AUTHORITY OF THE DISTRICT, WERE OF SUCH A
REASONABLE, GENERAL, ROUTINE, ACCEPTED AND IMPORTANT CHARACTER, IN THE
PROTECTION OF THE PUBLIC HEALTH AND SAFETY, THAT THEY WERE BEING
PERFORMED LAWFULLY WITHOUT SUCH A SEARCH WARRANT AS IS REQUIRED BY THE
FOURTH AMENDMENT TO PROTECT THE RIGHT OF THE PEOPLE TO BE SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS AGAINST UNREASONABLE
SEARCHES AND SEIZURES. 

ACCORDINGLY, THE CONVICTION OF THE RESPONDENT SHOULD BE SUSTAINED,
AND THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS AFFIRMING THE
JUDGMENT OF THE MUNICIPAL COURT OF APPEALS SETTING ASIDE THAT
CONVICTION SHOULD BE REVERSED. 
..END :



SOLESBEE V. BALKCOM, 339 U.S. 9 


NO. 77.  ARGUED NOVEMBER 15, 1949.  - DECIDED FEBRUARY 20, 1950.  - 205
GA. 122, 52 S.E.2D 433, AFFIRMED. 


WHERE A STATE POLICY IS AGAINST EXECUTION OF A CONDEMNED CONVICT WHO
HAS BECOME INSANE AFTER CONVICTION AND SENTENCE, IT IS NOT A DENIAL OF
DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO VEST DISCRETIONARY
AUTHORITY IN THE GOVERNOR (AIDED BY PHYSICIANS) TO DETERMINE WHETHER A
CONDEMNED CONVICT HAS BECOME INSANE AFTER SENTENCE AND, IF SO, WHETHER
HE SHOULD BE COMMITTED TO AN INSANE ASYLUM - EVEN THOUGH THE GOVERNOR'S
DECISION IS NOT SUBJECT TO JUDICIAL REVIEW AND THE STATUTE MAKES NO
PROVISION FOR AN ADVERSARY HEARING AT WHICH THE CONVICT MAY APPEAR IN
PERSON OR BY COUNSEL OR THROUGH FRIENDS AND CROSS-EXAMINE WITNESSES AND
OFFER EVIDENCE.  PP. 9-14. 

SOLESBEE V. BALKCOM, WARDEN. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

IN A HABEAS CORPUS PROCEEDING, A GEORGIA TRIAL COURT SUSTAINED THE
CONSTITUTIONAL VALIDITY OF GA. CODE SEC. 27-2602, WHICH LEAVES
DETERMINATION OF SANITY AFTER CONVICTION OF A CAPITAL OFFENSE TO THE
GOVERNOR SUPPORTED BY THE REPORT OF PHYSICIANS.  THE SUPREME COURT OF
GEORGIA AFFIRMED.  205 GA. 122, 52 S.E.2D 433.  ON APPEAL TO THIS
COURT, AFFIRMED, P. 14. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF MURDER IN A GEORGIA STATE COURT.  HIS
SENTENCE WAS DEATH BY ELECTROCUTION.  SUBSEQUENTLY HE ASKED THE
GOVERNOR TO POSTPONE EXECUTION ON THE GROUND THAT AFTER CONVICTION AND
SENTENCE HE HAD BECOME INSANE.  ACTING UNDER AUTHORITY GRANTED BY SEC.
27-2602 OF THE GEORGIA CODE  FN1  THE GOVERNOR APPOINTED THREE
PHYSICIANS WHO EXAMINED PETITIONER AND DECLARED HIM SANE.  PETITIONER
THEN FILED THIS HABEAS CORPUS PROCEEDING AGAIN ALLEGING HIS INSANITY. 
HE CONTENDED THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
REQUIRED THAT HIS CLAIM OF INSANITY AFTER SENTENCE BE ORIGINALLY
DETERMINED BY A JUDICIAL OR ADMINISTRATIVE TRIBUNAL AFTER NOTICE AND
HEARINGS IN WHICH HE COULD BE REPRESENTED BY COUNSEL, CROSS-EXAMINE
WITNESSES AND OFFER EVIDENCE.  HE FURTHER CONTENDED THAT IF THE
TRIBUNAL WAS ADMINISTRATIVE ITS FINDINGS MUST BE SUBJECT TO JUDICIAL
REVIEW.  THE TRIAL COURT SUSTAINED THE CONSTITUTIONAL VALIDITY OF SEC.
27-2602, HOLDING THAT DETERMINATION OF PETITIONER'S SANITY BY THE
GOVERNOR SUPPORTED BY THE REPORT OF PHYSICIANS HAD MET THE STANDARDS OF
DUE PROCESS.  THE STATE SUPREME COURT AFFIRMED, 205 GA. 122, 52 S.E.2D
433.  THE CONSTITUTIONAL QUESTIONS BEING SUBSTANTIAL, SEE PHYLE V.
DUFFY, 334 U.S. 431, 439, THE CASE IS HERE ON APPEAL UNDER 28 U.S.C.
SEC. 1257(2). 

IN AFFIRMING, THE STATE SUPREME COURT HELD THAT A PERSON LEGALLY
CONVICTED AND SENTENCED TO DEATH HAD NO STATUTORY OR CONSTITUTIONAL
RIGHT TO A JUDICIALLY CONDUCTED OR SUPERVISED "INQUISITION OR TRIAL" ON
THE QUESTION OF INSANITY SUBSEQUENT TO SENTENCE.  FN2  IT VIEWED THE
GEORGIA STATUTORY PROCEDURE FOR DETERMINATION OF THIS QUESTION AS
MOTIVATED SOLELY BY A SENSE OF "PUBLIC PROPRIETY AND DECENCY" - AN "ACT
OF GRACE" WHICH COULD BE "BESTOWED OR WITHHELD BY THE STATE AT WILL"
AND THEREFORE NOT SUBJECT TO DUE PROCESS REQUIREMENTS OF NOTICE AND
HEARING.  THE COURT CITED AS AUTHORITY, AMONG OTHERS, OUR HOLDING IN
NOBLES V. GEORGIA, 168 U.S. 398.  COMPARE BURNS V. UNITED STATES, 287
U.S. 216, 223. 

IN ACCORDANCE WITH ESTABLISHED POLICY WE SHALL NOT GO BEYOND THE
CONSTITUTIONAL ISSUES NECESSARILY RAISED BY THIS RECORD.  AT THE OUTSET
WE LAY ASIDE THE CONTENTION THAT EXECUTION OF AN INSANE PERSON IS A
TYPE OF "CRUEL AND UNUSUAL PUNISHMENT" FORBIDDEN BY THE FOURTEENTH
AMENDMENT.  SEE FRANCIS V. RESWEBER, 329 U.S. 459.  FOR THE CONTROLLING
GEORGIA STATUTES NEITHER APPROVE THE PRACTICE OF EXECUTING INSANE
PERSONS, NOR IS THIS PETITIONER ABOUT TO BE EXECUTED ON SUCH A
PREMISE.  IT IS SUGGESTED THAT THE REASONING OF THE GEORGIA SUPREME
COURT IN THIS CASE REQUIRES US TO PASS UPON THE STATE STATUTE AS THOUGH
IT HAD ESTABLISHED A STATE PRACTICE DESIGNED TO EXECUTE PERSONS WHILE
INSANE.  BUT WE SHALL NOT MEASURE THE STATUTE BY SOME POSSIBLE FUTURE
APPLICATION.  OUR HOLDING IS LIMITED TO THE QUESTION OF WHETHER THE
METHOD APPLIED BY GEORGIA HERE TO DETERMINE THE SANITY OF AN ALREADY
CONVICTED DEFENDANT OFFENDS DUE PROCESS. 

POSTPONEMENT OF EXECUTION BECAUSE OF INSANITY BEARS A CLOSE AFFINITY
NOT TO TRIAL FOR A CRIME BUT RATHER TO REPRIEVES OF SENTENCES IN
GENERAL.  THE POWER TO REPRIEVE HAS USUALLY SPRUNG FROM THE SAME SOURCE
AS THE POWER TO PARDON.  POWER OF EXECUTIVE CLEMENCY IN THIS COUNTRY
UNDOUBTEDLY DERIVED FROM THE PRACTICE AS IT HAD EXISTED IN ENGLAND. 
SUCH POWER HAS TRADITIONALLY RESTED IN GOVERNORS OR THE PRESIDENT,
ALTHOUGH SOME OF THAT POWER IS OFTEN DELEGATED TO AGENCIES SUCH AS
PARDON OR PAROLE BOARDS.  SELDOM, IF EVER, HAS THIS POWER OF EXECUTIVE
CLEMENCY BEEN SUBJECTED TO REVIEW BY THE COURTS.  SEE EX PARTE UNITED
STATES, 242 U.S. 27, 42, AND CASES COLLECTED IN NOTE, 38 L.R.A. 577,
587. 

WE ARE UNABLE TO SAY THAT IT OFFENDS DUE PROCESS FOR A STATE TO DEEM
ITS GOVERNOR AN "APT AND SPECIAL TRIBUNAL" N3 TO PASS UPON A QUESTION
SO CLOSELY RELATED TO POWERS THAT FROM THE BEGINNING HAVE BEEN
ENTRUSTED TO GOVERNORS.  AND HERE THE GOVERNOR HAD THE AID OF
PHYSICIANS SPECIALLY TRAINED IN APPRAISING THE ELUSIVE AND OFTEN
DECEPTIVE SYMPTOMS OF INSANITY.  IT IS TRUE THAT GOVERNORS AND
PHYSICIANS MIGHT MAKE ERRORS OF JUDGMENT.  BUT THE SEARCH FOR TRUTH IN
THIS FIELD IS ALWAYS BESET BY DIFFICULTIES THAT MAY BEGET ERROR.  EVEN
JUDICIAL DETERMINATION OF SANITY MIGHT BE WRONG. 

RECENTLY WE HAVE POINTED OUT THE NECESSARY AND INHERENT DIFFERENCES
BETWEEN TRIAL PROCEDURES AND POSTCONVICTION PROCEDURES SUCH AS
SENTENCING.  WILLIAMS V. NEW YORK, 337 U.S. 241.  IN THAT CASE WE
EMPHASIZED THAT CERTAIN TRIAL PROCEDURE SAFEGUARDS ARE NOT APPLICABLE
TO THE PROCESS OF SENTENCING.  THIS PRINCIPLE APPLIES EVEN MORE
FORCEFULLY TO AN EFFORT TO TRANSPLANT EVERY TRIAL SAFEGUARD TO A
DETERMINATION OF SANITY AFTER CONVICTION.  AS WAS POINTED OUT IN THE
NOBLES CASE, SUPRA, TO REQUIRE JUDICIAL REVIEW EVERY TIME A CONVICTED
DEFENDANT SUGGESTED INSANITY WOULD MAKE THE POSSIBILITY OF CARRYING OUT
A SENTENCE DEPEND UPON "FECUNDITY IN MAKING SUGGESTION AFTER SUGGESTION
OF INSANITY."  NOBLES V. GEORGIA, SUPRA, AT 405-406.  SEE ALSO PHYLE V.
DUFFY, SUPRA. TO PROTECT ITSELF SOCIETY MUST HAVE POWER TO TRY,
CONVICT, AND EXECUTE SENTENCES.  OUR LEGAL SYSTEM DEMANDS THAT THIS
GOVERNMENTAL DUTY BE PERFORMED WITH SCRUPULOUS FAIRNESS TO AN ACCUSED. 
WE CANNOT SAY THAT IT OFFENDS DUE PROCESS TO LEAVE THE QUESTION OF A
CONVICTED PERSON'S SANITY TO THE SOLEMN RESPONSIBILITY OF A STATE'S
HIGHEST EXECUTIVE WITH AUTHORITY TO INVOKE THE AID OF THE MOST SKILLFUL
CLASS OF EXPERTS ON THE CRUCIAL QUESTIONS INVOLVED. 

THIS LEAVES THE CONTENTION THAT THE GEORGIA STATUTES DO NOT MAKE
PROVISIONS FOR AN ADVERSARY HEARING IN WHICH A CONVICTED DEFENDANT CAN
BE PRESENT BY FRIENDS, ATTORNEYS, OR IN PERSON, WITH THE PRIVILEGE OF
CROSS-EXAMINING WITNESSES AND OFFERING EVIDENCE.  WHETHER THIS GOVERNOR
DECLINED TO HEAR ANY STATEMENTS ON PETITIONER'S BEHALF, THIS RECORD
DOES NOT SHOW.  WE WOULD SUPPOSE THAT MOST IF NOT ALL GOVERNORS, LIKE
MOST IF NOT ALL JUDGES, WOULD WELCOME ANY INFORMATION WHICH MIGHT BE
SUGGESTED IN CASES WHERE HUMAN LIVES DEPEND UPON THEIR DECISION. 

BOTH THE NOBLES AND THE PHYLE CASES STAND FOR THE UNIVERSAL COMMON
LAW PRINCIPLE THAT UPON A SUGGESTION OF INSANITY AFTER SENTENCE, THE
TRIBUNAL CHARGED WITH RESPONSIBILITY MUST BE VESTED WITH BROAD
DISCRETION IN DECIDING WHETHER EVIDENCE SHALL BE HEARD.  THIS
DISCRETION HAS USUALLY BEEN HELD NONREVIEWABLE BY APPELLATE COURTS. 
FN4  THE HEART OF THE COMMON-LAW DOCTRINE HAS BEEN THAT A SUGGESTION OF
INSANITY AFTER SENTENCE IS AN APPEAL TO THE CONSCIENCE AND SOUND WISDOM
OF THE PARTICULAR TRIBUNAL WHICH IS ASKED TO POSTPONE SENTENCE.  WE
CANNOT SAY THAT THE TRUST THUS REPOSED IN JUDGES SHOULD BE DENIED
GOVERNORS, TRADITIONALLY CHARGED WITH SAYING THE LAST WORD THAT SPELLS
LIFE OR DEATH.  THERE IS NO INDICATION THAT EITHER THE GOVERNOR OR THE
PHYSICIANS WHO ACTED ON PETITIONER'S APPLICATION VIOLATED THE
HUMANITARIAN POLICY OF GEORGIA AGAINST EXECUTION OF THE INSANE.  WE
HOLD THAT THE GEORGIA STATUTE AS APPLIED IS NOT A DENIAL OF DUE PROCESS
OF LAW.  AFFIRMED. 

FN1  "DISPOSITION OF INSANE CONVICTS.  ...  UPON SATISFACTORY
EVIDENCE BEING OFFERED TO THE GOVERNOR THAT THE PERSON CONVICTED OF A
CAPITAL OFFENSE HAS BECOME INSANE SUBSEQUENT TO HIS CONVICTION, THE
GOVERNOR MAY, WITHIN HIS DISCRETION, HAVE SAID PERSON EXAMINED BY SUCH
EXPERT PHYSICIANS AS THE GOVERNOR MAY CHOOSE; AND SAID PHYSICIANS SHALL
REPORT TO THE GOVERNOR THE RESULT OF THEIR INVESTIGATION; AND THE
GOVERNOR MAY, IF HE SHALL DETERMINE THAT THE PERSON CONVICTED HAS
BECOME INSANE, HAVE THE POWER OF COMMITTING HIM TO THE MILLEDGEVILLE
STATE HOSPITAL UNTIL HIS SANITY SHALL HAVE BEEN RESTORED, AS DETERMINED
BY LAWS NOW IN FORCE.  ...  "  GA. CODE ANN. SEC. 27-2602(1074 P.C.);
ACTS 1903, P. 77. 

FN2  "NO PERSON WHO HAS BEEN CONVICTED OF A CAPITAL OFFENSE SHALL BE
ENTITLED TO ANY INQUISITION OR TRIAL TO DETERMINE HIS SANITY."  GA.
CODE ANN. SEC. 27-2601(1073 P.C.); ACTS 1903, P. 77. 

FN3  NOBLES V. GEORGIA, 168 U.S. 398, 409. 

FN4  SEE CASES COLLECTED IN NOTES, ANN. CAS. 1916E, 424 ET SEQ.; 49
A.L.R. 801 ET SEQ.; 38 L.R.A. 577 ET SEQ. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

IN THE HISTORY OF MURDER, THE ONSET OF INSANITY WHILE AWAITING
EXECUTION OF A DEATH SENTENCE IS NOT A RARE PHENOMENON.  THE LEGAL
PROBLEMS WHICH SUCH SUPERVENING INSANITY RAISES HAPPILY DO NOT INVOLVE
EXPLORATIONS OF THE PATHOLOGICAL PROCESSES WHICH GIVE RISE TO THE
CONFLICT BETWEEN SO-CALLED LEGAL AND MEDICAL INSANITY.  SEE M'NAGHTEN'S
CASE, 10 CL. & F. 200(1843); GLUECK, MENTAL DISORDER AND THE CRIMINAL
LAW PASSIM (1925); MINUTES OF EVIDENCE BEFORE THE 1949 ROYAL COMMISSION
ON CAPITAL PUNISHMENT.  THE CASE NOW BEFORE THE COURT PRESENTS A
FAMILIAR CONSTITUTIONAL ISSUE PLACED IN THE SETTING OF A CLAIM OF
SUPERVENING INSANITY. 

THE QUESTION IS THIS:  MAY A STATE WITHOUT OFFENDING THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT PUT TO DEATH ONE ON WHOSE BEHALF IT
IS CLAIMED THAT HE BECAME INSANE WHILE AWAITING EXECUTION, IF ALL
OPPORTUNITY TO HAVE HIS CASE PUT IS DENIED AND THE CLAIM OF SUPERVENING
INSANITY IS REJECTED ON THE BASIS OF AN EX PARTE INQUIRY BY THE
GOVERNOR OF THE STATE?  THIS ISSUE WAS BEFORE THE COURT VERY RECENTLY,
BUT IN THE CIRCUMSTANCES THE MATTER WAS NOT RIPE FOR DECISION.  PHYLE
V. DUFFY, 334 U.S. 431.  ON THE RECORD BEFORE US THE ISSUE MUST BE
MET.  UNLIKE THE SITUATION IN PHYLE V. DUFFY, IT CANNOT BE URGED THAT
THE GEORGIA JUDGMENT UNDER REVIEW LEAVES OPEN THE OPPORTUNITY FOR A
HEARING WHICH WAS GIVEN WHEN PHYLE V. DUFFY WENT BACK TO THE CALIFORNIA
COURTS.  34 CAL.2D 144, 208 P.2D 668.  WE CANNOT AVOID NOW DECIDING
WHETHER ONE AWAITING ELECTROCUTION WHO MAKES A SUBSTANTIAL CLAIM THAT
HE HAS BECOME INSANE CAN BE DENIED OPPORTUNITY TO ADDRESS THE MIND OF
THE GOVERNOR, OR THOSE WHO ADVISE HIM, IN ORDER TO ESTABLISH THE FACT
OF SUCH INSANITY.  IN PHYLE'S CASE, THE COURT RECOGNIZED "THE GRAVITY
OF THE QUESTIONS HERE RAISED UNDER THE DUE PROCESS CLAUSE."  334 U.S.
AT 439.  APPARENTLY BETWEEN JUNE 1948 AND TODAY THE GRAVITY SEEMS TO
HAVE BEEN DISPELLED.  THESE GRAVE QUESTIONS ARE NOW ALMOST SUMMARILY
ANSWERED.  IT CANNOT BE DUE TO THE WEIGHTINESS OF THE ARGUMENT
PRESENTED AT THE BAR OF THIS COURT FOR NONE WAS MADE HERE BY GEORGIA,
AND ITS SLIGHT BRIEF HARDLY DISCUSSES THE PROBLEMS. 

THE IMMEDIATE QUESTION BEFORE US DEPENDS ON THE VIEW ONE TAKES OF THE
LEGAL RIGHT OF A STATE TO EXECUTE A PERSON BECOME INSANE AFTER
SENTENCE.  IF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES
NOT BAR THE STATE FROM INFLICTION OF THE DEATH SENTENCE WHILE SUCH
INSANITY PERSISTS, OF COURSE IT NEED MAKE NO INQUIRY INTO THE EXISTENCE
OF SUPERVENING INSANITY.  IF IT CHOOSES TO MAKE ANY INQUIRY IT MAY DO
SO ENTIRELY ON ITS OWN TERMS.  IF THE DUE PROCESS CLAUSE DOES LIMIT THE
STATE'S POWER TO EXECUTE SUCH AN INSANE PERSON, THIS COURT MUST ASSERT
THE SUPREMACY OF THE DUE PROCESS CLAUSE AND PROHIBIT ITS VIOLATION BY A
STATE. 

THE COURT IN AN EASY, QUICK WAY PUTS THIS CRUCIAL PROBLEM TO ONE SIDE
AS NOT BEFORE US.  BUT IN DETERMINING WHAT PROCEDURAL SAFEGUARDS A
STATE MUST PROVIDE, IT MAKES ALL THE DIFFERENCE IN THE WORLD WHETHER
THE UNITED STATES CONSTITUTION PLACES A SUBSTANTIVE RESTRICTION ON THE
STATE'S POWER TO TAKE THE LIFE OF AN INSANE MAN.  IF NOT TO EXECUTE IS
MERELY A BENEVOLENT WITHHOLDING OF THE RIGHT TO KILL, THE STATE MAY
EXERCISE ITS BENEVOLENCE AS IT SEES FIT.  BUT IF GEORGIA IS PRECLUDED
BY THE DUE PROCESS CLAUSE FROM EXECUTING A MAN WHO HAS TEMPORARILY OR
PERMANENTLY BECOME INSANE, IT IS NOT A MATTER OF GRACE TO ASSERT THAT
RIGHT ON BEHALF OF THE LIFE ABOUT TO BE TAKEN.  IF TAKING LIFE UNDER
SUCH CIRCUMSTANCES IS FORBIDDEN BY THE CONSTITUTION, THEN IT IS NOT
WITHIN THE BENEVOLENT DISCRETION OF GEORGIA TO DETERMINE HOW IT WILL
ASCERTAIN SANITY.  GEORGIA MUST AFFORD THE RUDIMENTARY SAFEGUARDS FOR
ESTABLISHING THE FACT.  IF GEORGIA DENIES THEM SHE TRANSGRESSES THE
SUBSTANCE OF THE LIMITS THAT THE CONSTITUTION PLACES UPON HER. 

DOES THE DUE PROCESS CLAUSE THEN BAR A STATE FROM EXECUTING A MAN
UNDER SENTENCE OF DEATH WHILE INSANE?  IT IS NOW THE SETTLED DOCTRINE
OF THIS COURT THAT THE DUE PROCESS CLAUSE EMBODIES A SYSTEM OF RIGHTS
BASED ON MORAL PRINCIPLES SO DEEPLY EMBEDDED IN THE TRADITIONS AND
FEELINGS OF OUR PEOPLE AS TO BE DEEMED FUNDAMENTAL TO A CIVILIZED
SOCIETY AS CONCEIVED BY OUR WHOLE HISTORY.  DUE PROCESS IS THAT WHICH
COMPORTS WITH THE DEEPEST NOTIONS OF WHAT IS FAIR AND RIGHT AND JUST. 
THE MORE FUNDAMENTAL THE BELIEFS ARE THE LESS LIKELY THEY ARE TO BE
EXPLICITLY STATED.  BUT RESPECT FOR THEM IS OF THE VERY ESSENCE OF THE
DUE PROCESS CLAUSE.  IN ENFORCING THEM THIS COURT DOES NOT TRANSLATE
PERSONAL VIEWS INTO CONSTITUTIONAL LIMITATIONS.  IN APPLYING SUCH A
LARGE, UNTECHNICAL CONCEPT AS "DUE PROCESS," THE COURT ENFORCES THOSE
PERMANENT AND PERVASIVE FEELINGS OF OUR SOCIETY AS TO WHICH THERE IS
COMPELLING EVIDENCE OF THE KIND RELEVANT TO JUDGMENTS ON SOCIAL
INSTITUTIONS.    THAT IT OFFENDS OUR HISTORIC HERITAGE TO KILL A MAN
WHO HAS BECOME INSANE WHILE AWAITING SENTENCE CANNOT BE GAINSAID.  THIS
LIMITATION ON THE POWER OF THE STATE TO TAKE LIFE HAS BEEN PART OF OUR
LAW FOR CENTURIES, RECOGNIZED DURING PERIODS OF ENGLISH HISTORY WHEN
FEELINGS WERE MORE BARBAROUS AND MEN RECOILED LESS FROM BRUTAL ACTION
THAN WE LIKE TO THINK IS TRUE OF OUR TIME.  DUE PROCESS IS ITSELF "A
HISTORICAL PRODUCT," JACKMAN V. ROSENBAUM CO., 260 U.S. 22, 31, AND IT
REQUIRES NO EXPANSION OF ITS PURPOSES TO FIND IN THE FOURTEENTH
AMENDMENT A RESTRICTION UPON STATE ACTION THAT CARRIES SUCH IMPRESSIVE
CREDENTIALS OF HISTORY AS DOES THAT FORBIDDING THE STATE TO KILL AN
INSANE MAN THOUGH UNDER SENTENCE OF DEATH: 

"IT WAS FURTHER PROVIDED BY THE SAID ACT OF 33 H. 8.  THAT IF A MAN
ATTAINTED OF TREASON BECAME MAD, THAT NOTWITHSTANDING HE SHOULD BE
EXECUTED; WHICH CRUELL AND INHUMANE LAW LIVED NOT LONG, BUT WAS
REPEALED, FOR IN THAT POINT ALSO IT WAS AGAINST THE COMMON LAW, BECAUSE
BY INTENDMENT OF LAW THE EXECUTION OF THE OFFENDER IS FOR EXAMPLE, UT
POENA AD PAUCOS, METUS AD OMNES PERVENIAT, AS BEFORE IS SAID:  BUT SO
IT IS NOT WHEN A MAD MAN IS EXECUTED, BUT SHOULD BE A MISERABLE
SPECTACLE, BOTH AGAINST LAW, AND OF EXTREAME INHUMANITY AND CRUELTY,
AND CAN BE NO EXAMPLE TO OTHERS."  COKE, THIRD INSTITUTES 6(1644). 

"AND IT SEEMS AGREED AT THIS DAY, THAT IF ONE WHO HAS COMMITTED A
CAPITAL OFFENCE, BECOME NON COMPOS BEFORE CONVICTION, HE SHALL NOT BE
ARRAIGNED; AND IF AFTER CONVICTION, THAT HE SHALL NOT BE EXECUTED."  1
HAWKINS, PLEAS OF THE CROWN 2(1716). 

"  ...  FOR NOTHING IS MORE CERTAIN IN LAW, THAN THAT A PERSON WHO
FALLS MAD AFTER A CRIME SUPPOS'D TO BE COMMITTED, SHALL NOT BE TRY'D
FOR IT; AND IF HE FALL MAD AFTER JUDGMENT, HE SHALL NOT BE EXECUTED:
THO I DO NOT THINK THE REASON GIVEN FOR THE LAW IN THAT POINT WILL
MAINTAIN IT, WHICH IS, THAT THE END OF PUNISHMENT IS THE STRIKING A
TERROR INTO OTHERS, BUT THE EXECUTION OF A MADMAN HAD NOT THAT EFFECT;
WHICH IS NOT TRUE, FOR THE TERROR TO THE LIVING IS EQUAL, WHETHER THE
PERSON BE MAD OR IN HIS SENSES  ...  BUT THE TRUE REASON OF THE LAW I
THINK TO BE THIS, A PERSON OF NON SANA MEMORIA, AND A LUNATICK DURING
HIS LUNACY, IS BY AN ACT OF GOD (FOR SO IT IS CALL'D, THO THE MEANS MAY
BE HUMANE, BE IT VIOLENT, AS HARD IMPRISONMENT, TERROR OF DEATH, OR
NATURAL, AS SICKNESS) DISABLED TO MAKE HIS JUST DEFENCE, THERE MAY BE
CIRCUMSTANCES LYING IN HIS PRIVATE KNOWLEDG, WHICH WOULD PROVE HIS
INNOCENCY, OF WHICH HE CAN HAVE NO ADVANTAGE, BECAUSE NOT KNOWN TO THE
PERSONS WHO SHALL TAKE UPON THEM HIS DEFENCE  ... 

     .         .         .     .         . 

"THE KING IS THEREFORE NO OTHERWISE BENEFITED BY THE DESTRUCTION OF
HIS SUBJECTS, THAN THAT THE EXAMPLE DETERS OTHERS FROM COMMITTING THE
LIKE CRIMES; AND THERE BEING SO MANY TO BE MADE EXAMPLES OF, BESIDES
THOSE ON WHOM THE MISFORTUNES OF MADNESS FALL, IT IS INCONSISTENT WITH
HUMANITY TO MAKE EXAMPLES OF THEM; IT IS INCONSISTENT WITH RELIGION, AS
BEING AGAINST CHRISTIAN CHARITY TO SEND A GREAT OFFENDER QUICK, AS IT
IS STIL'D, INTO ANOTHER WORLD, WHEN HE IS NOT OF A CAPACITY TO FIT
HIMSELF FOR IT.  BUT WHATEVER THE REASON OF THE LAW IS, IT IS PLAIN THE
LAW IS SO  ...  " REMARKS ON THE TRYAL OF CHARLES BATEMAN BY SIR JOHN
HAWLES, SOLICITOR-GENERAL IN THE REIGN OF KING WILLIAM III, 3 STATE
TRYALS 651, 652-53(1719). 

"IF A MAN IN HIS SOUND MEMORY COMMITS A CAPITAL OFFENSE, AND BEFORE
HIS ARRAIGNMENT HE BECOMES ABSOLUTELY MAD, HE OUGHT NOT BY LAW TO BE
ARRAIGNED DURING SUCH HIS PHRENZY, BUT BE REMITTED TO PRISON UNTIL THAT
INCAPACITY BE REMOVED; THE REASON IS, BECAUSE HE CANNOT ADVISEDLY PLEAD
TO THE INDICTMENT  ...  AND IF SUCH PERSON AFTER HIS PLEA, AND BEFORE
HIS TRIAL, BECOME OF NON SANE MEMORY, HE SHALL NOT BE TRIED; OR, IF
AFTER HIS TRIAL HE BECOME OF NON SANE MEMORY, HE SHALL NOT RECEIVE
JUDGMENT; OR, IF AFTER JUDGMENT HE BECOME OF NON SANE MEMORY, HIS
EXECUTION SHALL BE SPARED; FOR WERE HE OF SOUND MEMORY, HE MIGHT ALLEGE
SOMEWHAT IN STAY OF JUDGMENT OR EXECUTION."  1 HALE, THE HISTORY OF THE
PLEAS OF THE CROWN 34-35(1736).  FN1 

"ANOTHER CAUSE OF REGULAR REPRIEVE IS, IF THE OFFENDER BECOME NON
COMPOS  ...  IF AFTER JUDGMENT, HE SHALL NOT BE ORDERED FOR EXECUTION:
FOR 'FURIOSUS SOLO FURORE PUNITUR,' AND THE LAW KNOWS NOT BUT HE MIGHT
HAVE OFFERED SOME REASON, IF IN HIS SENSES, TO HAVE STAYED THESE
RESPECTIVE PROCEEDINGS."  4 BL. COMM. 388-89(1769). 

HOWEVER QUAINT SOME OF THESE ANCIENT AUTHORITIES OF OUR LAW MAY SOUND
TO OUR EARS, THE TWENTIETH CENTURY HAS NOT SO FAR PROGRESSED AS TO
OUTMODE THEIR REASONING.  WE SHOULD NOT BE LESS HUMANE THAN WERE
ENGLISHMEN IN THE CENTURIES THAT PRECEDED THIS REPUBLIC.  FN2 AND THE
PRACTICAL CONSIDERATIONS ARE NOT LESS RELEVANT TODAY THAN THEY WERE
WHEN URGED BY SIR JOHN HAWLES AND HALE AND HAWKINS AND BLACKSTONE IN
WRITINGS WHICH NURTURED SO MANY FOUNDERS OF THE REPUBLIC.  IF A MAN HAS
GONE INSANE, IS HE STILL HIMSELF?  IS HE STILL THE MAN WHO WAS
CONVICTED?  IN ANY EVENT "WERE HE OF SOUND MEMORY, HE MIGHT ALLEGE
SOMEWHAT" TO SAVE HIMSELF FROM DOOM.  IT IS NOT AN IDLE FANCY THAT ONE
UNDER SENTENCE OF DEATH OUGHT NOT, BY BECOMING NON COMPOS, BE DENIED
THE MEANS TO "ALLEGE SOMEWHAT" THAT MIGHT FREE HIM.  SUCH AN
OPPORTUNITY MAY SAVE LIFE, AS THE LAST MINUTE APPLICATIONS TO THIS
COURT FROM TIME TO TIME AND NOT ALWAYS WITHOUT SUCCESS AMPLY ATTEST. 
FN3 

THE SHORT OF IT IS THAT AMERICAN LAW IS NOT MORE BRUTAL THAN WHAT IS
REVEALED AS THE UNBROKEN COMMAND OF ENGLISH LAW FOR CENTURIES PRECEDING
THE SEPARATION OF THE COLONIES.  THE COURT PUTS OUT OF SIGHT, AS IT
WERE, WHAT IS BASIC TO A DISPOSITION OF THIS CASE, NAMELY, THAT NOT A
STATE IN THE UNION SUPPORTS THE NOTION THAT AN INSANE MAN UNDER
SENTENCE OF DEATH WOULD LEGALLY BE EXECUTED.  IF RESPECT IS TO BE GIVEN
TO CLAIMS SO DEEPLY ROOTED IN OUR COMMON HERITAGE AS THIS LIMITATION
UPON STATE POWER, THE FOURTEENTH AMENDMENT STANDS ON GUARD TO ENFORCE
IT. 

UNLESS THIS RESTRICTION ON STATE POWER IS FULLY RECOGNIZED AND ITS
IMPLICATIONS ARE DULY RESPECTED, THE CRUCIAL QUESTIONS PRESENTED BY
THIS CASE ARE AVOIDED.  WE ARE HERE NOT DEALING WITH THE CROWN'S
PREROGATIVE OF MERCY CONTINUED THROUGH THE PARDONING POWER IN THIS
COUNTRY AS AN EXERCISE OF GRACE.  SEE EX PARTE GROSSMAN, 267 U.S. 87. 
NOR ARE WE DEALING WITH THE RANGE OF DISCRETION VESTED IN JUDGES BY
PENAL LAWS CARRYING FLEXIBLE INSTEAD OF FIXED PENALTIES.  SEE WILLIAMS
V. NEW YORK, 337 U.S. 241.  WE ARE DEALING WITH A RESTRICTION UPON THE
STATES AGAINST TAKING LIFE IF A CERTAIN FACT IS ESTABLISHED, TO-WIT,
INSANITY, LIKE UNTO OTHER RESTRICTIONS UPON THE STATE IN TAKING LIBERTY
OR PROPERTY.  IN VIEW OF THE DUE PROCESS CLAUSE IT IS NOT FOR THE STATE
TO SAY:  "I CHOOSE NOT TO TAKE LIFE IF A MAN UNDER SENTENCE BECOMES
INSANE."  THE DUE PROCESS CLAUSE SAYS TO A STATE:  "THOU SHALT NOT." 

AND SO WE COME TO THE IMPLICATIONS OF THIS CONSTITUTIONAL RESTRICTION
UPON A STATE IN ORDER TO DETERMINE WHETHER IT CAN DENY ALL OPPORTUNITY
TO LAY BEFORE SOME AGENCY OF GOVERNMENT FACTS AND CIRCUMSTANCES WHICH,
IF TRUE, MUST STAY THE EXECUTIONER'S HAND. 

THE MANNER IN WHICH THE STATES HAVE DEALT WITH THIS PROBLEM FURNISHES
A FAIR REFLEX, FOR PURPOSES OF THE DUE PROCESS CLAUSE, OF THE
UNDERLYING FEELINGS OF OUR SOCIETY ABOUT THE TREATMENT OF PERSONS WHO
BECOME INSANE WHILE UNDER SENTENCE OF DEATH. 

SIX STATES NO LONGER HAVE THE DEATH PENALTY.  (SEE APPENDIX, PART
A.)  AS TO THE REMAINING 42: 

I. IN 30 STATES, EXECUTION OF THE DEATH PENALTY IS SUSPENDED UPON A
DETERMINATION OF INSANITY SUPERVENING AFTER SENTENCE. 

(A)  OF THESE, 9 STATES PROVIDE (5 BY STATUTE AND 4 UNDER COMMON LAW)
THAT THE INQUIRY SHALL BE ENTIRELY JUDICIAL.  (PART B.) 

(B)  OF THESE, 14 STATES PROVIDE FOR THE ULTIMATE DETERMINATION OF
SANITY OR INSANITY BY A JUDGE OR JURY AFTER A HEARING, UPON INITIATION
OF THE HEARING BY A DESIGNATED PRISON OR POLICE OFFICIAL. 

(1)  OF THESE, 2 STATES PROVIDE FOR JUDICIAL REVIEW OF THE OFFICIAL'S
DECISION NOT TO INITIATE A HEARING.  (PART C-I.) 

(2)  OF THESE, 12 STATES HAVE NO LEGISLATION OR ADJUDICATION DEFINING
WHETHER THE OFFICIAL'S DECISION IS SUBJECT TO REVIEW.  (PART C-II.) 

(C)  OF THESE, 7 STATES PROVIDE FOR THE ULTIMATE DETERMINATION OF
SANITY BY THE GOVERNOR OR BY A BODY OF PHYSICIANS AND LAYMEN. 

(1)  OF THESE, 1 STATE APPEARS TO AFFORD AN OPPORTUNITY TO BE HEARD. 
(PART D-I.) 

(2)  OF THESE, 3 STATES APPEAR TO PROVIDE FOR AN EX PARTE INQUIRY. 
(PART D-II.) 

(3)  OF THESE, 3 STATES HAVE NO PROVISION INDICATING THE NATURE OF
THE INQUIRY.  (PART D-III.) 

II.  IN 3 STATES, SUSPENSION OF EXECUTION OF THE DEATH PENALTY
BECAUSE OF INSANITY IS AT THE DISCRETION OF THE GOVERNOR.  (PART E.) 

III.  AS TO 9 STATES, THE AVAILABLE LEGISLATION AND DECISIONS AFFORD
NO CLEAR BASIS FOR CLASSIFICATION.  OF THESE, 4 GIVE STRONG INDICATIONS
THAT EXECUTION OF THE DEATH PENALTY IS SUSPENDED UPON INSANITY
SUPERVENING AFTER SENTENCE,  FN4  3 OFFER INSUFFICIENT MATERIAL EVEN
FOR INFERENCE, AND 2 OFFER NO RELEVANT MATERIAL.  (PART F.) 

WE START WITH THE FACT THAT NOT A SINGLE STATE GIVES ANY INDICATION
OF HAVING UPROOTED THE HERITAGE OF THE COMMON LAW WHICH DEEMED IT TOO
BARBAROUS TO EXECUTE A MAN WHILE INSANE.  THIS BRINGS US TO THE MODE OF
ESTABLISHING THE CRUCIAL BASIS FOR THE LAWFUL KILLING BY A STATE,
NAMELY, THAT IT KILL NOT AN INSANE PERSON.  NINE STATES MAKE THE
NECESSARY INQUIRY ENTIRELY JUDICIAL.  FOURTEEN MORE STATES PUT THE
RESPONSIBILITY FOR INITIATING JUDICIAL INQUIRY, WITH VARIOUS
ALTERNATIVES OF JUDGE AND JURY, UPON AN APPROPRIATE OFFICIAL.  IN TEN
STATES THE DETERMINATION OF SANITY IS VESTED IN THE GOVERNOR EITHER
WITH OR WITHOUT THE AID OF ADVISORS OR IN A SEPARATE ADMINISTRATIVE
BOARD.  BUT EVEN AS TO THESE, IN ONLY SIX STATES, INCLUDING GEORGIA, IS
IT CLEAR THAT SUCH AN INQUIRY MAY BE ENTIRELY BEHIND CLOSED DOORS
WITHOUT ANY OPPORTUNITY FOR SUBMISSION OF FACTS ON BEHALF OF THE PERSON
WHOSE SANITY IS TO BE DETERMINED AS A PREREQUISITE TO KILLING HIM. 

THIS IMPRESSIVE BODY OF STATE LEGISLATION SIGNIFIES MORE THAN THE
HISTORIC CONTINUITY OF OUR REPULSION AGAINST KILLING AN INSANE MAN EVEN
THOUGH HE BE UNDER SENTENCE OF DEATH.  THE VINDICATION OF THIS CONCERN
TURNS ON THE ASCERTAINMENT OF WHAT IS CALLED A FACT, BUT WHICH IN THE
PRESENT STATE OF THE MENTAL SCIENCES IS AT BEST A HAZARDOUS GUESS
HOWEVER CONSCIENTIOUS.  IF THE DEEPLY ROOTED PRINCIPLE IN OUR SOCIETY
AGAINST KILLING AN INSANE MAN IS TO BE RESPECTED, AT LEAST THE MINIMUM
PROVISION FOR ASSURING A FAIR APPLICATION OF THAT PRINCIPLE IS INHERENT
IN THE PRINCIPLE ITSELF.  AND THE MINIMUM ASSURANCE THAT THE LIFE-AND
DEATH GUESS WILL BE A TRULY INFORMED GUESS REQUIRES RESPECT FOR THE
BASIC INGREDIENT OF DUE PROCESS, NAMELY, AN OPPORTUNITY TO BE ALLOWED
TO SUBSTANTIATE A CLAIM BEFORE IT IS REJECTED. 

THIS IS A REQUIREMENT THAT THIS COURT HAS ENFORCED AGAIN AND AGAIN
WHEN MERE INTERESTS OF PROPERTY WERE INVOLVED.  SEE E.G., PENNOYER V.
NEFF, 95 U.S. 714; PRIEST V. TRUSTEES OF LAS VEGAS, 232 U.S. 604.  IT
CANNOT BE THAT THE COURT IS MORE CONCERNED ABOUT PROPERTY LOSSES THAT
ARE NOT IRREMEDIABLE THAN ABOUT IRRETRIEVABLE HUMAN CLAIMS.  IF, AS WAS
HELD ONLY THE OTHER DAY, DUE PROCESS SAVES A MAN FROM BEING SENT TO
JAIL FOR SIXTY DAYS ON A CHARGE OF CONTEMPT BECAUSE HE WAS TRIED IN
SECRET, IN RE OLIVER, 333 U.S. 257, DUE PROCESS OUGHT ALSO TO VINDICATE
THE SELF-RESPECT OF SOCIETY BY NOT SENDING A MAN TO HIS DEATH ON THE
BASIS OF A PROCEEDING AS TO HIS SANITY IN WHICH ALL OPPORTUNITY ON HIS
BEHALF HAS BEEN DENIED TO SHOW THAT HE IS IN FACT IN THAT CONDITION OF
INSANITY WHICH BARS THE STATE FROM KILLING HIM.  HE SHOULD NOT BE
DENIED THE OPPORTUNITY TO INFORM THE MIND OF THE TRIBUNAL - BE IT A
GOVERNOR, A BOARD OR A JUDGE - THAT HAS TO DECIDE BETWEEN LIFE AND
DEATH, NOT AS A MATTER OF GRACE BUT ON THE BASIS OF LAW.  FOR IF HE BE
INSANE HIS LIFE CANNOT BE FORFEIT EXCEPT IN VIOLATION OF THE LAW OF THE
LAND. 

IF A MAN "IS AT THE VERY LEAST ENTITLED TO HAVE HIS FRIENDS,
RELATIVES AND COUNSEL PRESENT, NO MATTER WITH WHAT OFFENSE HE MAY BE
CHARGED" BEFORE BEING CONVICTED, IN RE OLIVER, SUPRA AT 272, HE SHOULD
NO LESS BE ALLOWED TO HAVE SOMEONE SPEAK FOR HIM WHEN THE ISSUE IS NOT
MERELY A PREROGATIVE OF MERCY OR THE EXERCISE OF DISCRETION WHICH
MODERN PENOLOGICAL THOUGHT, TRANSLATED INTO LEGISLATION, VESTS IN
JUDGES IN IMPOSING SENTENCE.  THE KILLING OF AN INSANE MAN UNDER
SENTENCE, IT NEEDS TO BE REPEATED, IS IN OUR LAW NOT A MATTER OF
DISCRETION.  NOT TO KILL SUCH AN INSANE MAN "HAS ITS ROOTS IN OUR
ENGLISH COMMON LAW HERITAGE" NO LESS DEEP THAN NOT TO CONVICT HIM
WITHOUT A HEARING.  SEE IN RE OLIVER, SUPRA AT 266.  THE RULE AGAINST
KILLING AN INSANE PERSON EMBEDDED SO DEEPLY IN OUR LAW AS TO BE
PROTECTED BY SUBSTANTIVE ASPECTS OF DUE PROCESS REQUIRES AS PART OF
PROCEDURAL DUE PROCESS THAT THE VICTIM BE GIVEN AN OPPORTUNITY THROUGH
COUNSEL OR THE NEXT OF KIN TO INVOKE THE SUBSTANTIVE PRINCIPLE OF DUE
PROCESS. 

SINCE IT DOES NOT GO TO THE QUESTION OF GUILT BUT TO ITS
CONSEQUENCES, THE DETERMINATION OF THE ISSUE OF INSANITY AFTER SENTENCE
DOES NOT REQUIRE THE SAFEGUARDS OF A JUDICIAL PROCEEDING.  SEE NG FUNG
HO V. WHITE, 259 U.S. 276, 284-85.  NOR NEED THE PROCEEDING BE OPEN; IT
MAY BE IN CAMERA.  BUT PRECISELY BECAUSE THE INQUIRY NEED NOT BE OPEN
AND MAY BE MADE IN CAMERA, IT MUST BE FAIR IN RELATION TO THE ISSUE FOR
DETERMINATION.  IN THE PRESENT STATE OF THE TENTATIVE AND DUBIOUS
KNOWLEDGE AS TO MENTAL DISEASES AND THE GREAT STRIFE OF SCHOOLS IN
REGARD TO THEM, IT SURELY OPERATES UNFAIRLY TO MAKE SUCH DETERMINATIONS
NOT ONLY BEHIND CLOSED DOORS BUT WITHOUT ANY OPPORTUNITY FOR THE
SUBMISSION OF RELEVANT CONSIDERATIONS ON THE PART OF THE MAN WHOSE LIFE
HANGS IN THE BALANCE.    TO SAY THAT AN INQUIRY SO CONDUCTED IS UNFAIR
BECAUSE OF THE TREACHEROUS UNCERTAINTIES IN THE PRESENT STATE OF
PSYCHIATRIC KNOWLEDGE IS NOT TO IMPUGN THE GOOD FAITH OF GOVERNORS OR
BOARDS IN EXCLUDING WHAT IS SOUGHT TO BE PUT BEFORE THEM ON BEHALF OF A
PUTATIVE INSANE PERSON.  THE FACT THAT A CONCLUSION IS REACHED IN GOOD
CONSCIENCE IS NO PROOF OF ITS RELIABILITY.  THE VALIDITY OF A
CONCLUSION DEPENDS LARGELY ON THE MODE BY WHICH IT WAS REACHED.  A
GOVERNOR MIGHT NOT WANT TO HAVE IT ON HIS CONSCIENCE TO HAVE SENT A MAN
TO DEATH AFTER HEARING CONFLICTING VIEWS, EQUALLY PERSUASIVE, REGARDING
THE MAN'S SANITY.  CLAIMS OBVIOUSLY FRIVOLOUS NEED OF COURSE NOT BE
HEARD, EVEN AS THIS COURT DOES NOT LISTEN TO CLAIMS THAT RAISE NO
SUBSTANTIAL QUESTION.  IT IS NOT SUGGESTED THAT PETITIONER'S CLAIM OF
INSANITY WAS BASELESS. 

IT IS A GROUNDLESS FEAR TO ASSUME THAT IT WOULD OBSTRUCT THE RIGOROUS
ADMINISTRATION OF CRIMINAL JUSTICE TO ALLOW THE CASE TO BE PUT FOR A
CLAIM OF INSANITY, HOWEVER INFORMAL AND EXPEDITIOUS THE PROCEDURE FOR
DEALING WITH THE CLAIM.  THE TIME NEEDED FOR SUCH A FAIR PROCEDURE
COULD NOT UNREASONABLY DELAY THE EXECUTION OF THE SENTENCE UNLESS IN
ALL FAIRNESS AND WITH DUE RESPECT FOR A BASIC PRINCIPLE IN OUR LAW THE
EXECUTION SHOULD BE DELAYED.  THE RISK OF AN UNDUE DELAY IS HARDLY
COMPARABLE TO THE GRIM RISK OF THE BARBAROUS EXECUTION OF AN INSANE MAN
BECAUSE OF A HURRIED, ONE-SIDED, UNTESTED DETERMINATION OF THE QUESTION
OF INSANITY, THE ANSWERS TO WHICH ARE AS YET SO WRAPPED IN CONFUSION
AND CONFLICT AND SO DEPENDENT ON ELUCIDATION BY MORE THAN ONE-SIDED
PARTISANSHIP. 

TO DENY ALL OPPORTUNITY TO MAKE THE CLAIM THAT WAS HERE MADE ON
BEHALF OF THE PETITIONER IS IN MY VIEW A DENIAL OF DUE PROCESS OF LAW. 

FN1  THE FIRST PUBLICATION OF HALE'S PLEAS OF THE CROWN WAS OF COURSE
BASED UPON THE MANUSCRIPT LEFT BY HIM AT HIS DEATH IN 1676.  SEE 6
HOLDSWORTH, A HISTORY OF ENGLISH LAW 574, 589-90(1924). 

FN2 SEE REPORT OF THE COMMITTEE ON INSANITY AND CRIME, CMD.  NO.
2005, PP. 17, 19(1923). 

FN3  INSANE PERSONS DO NOT HAVE THE CAPACITY TO PLEAD OR BE TRIED. 
SEE YOUTSEY V. UNITED STATES, 97 F. 937; FORTHOFFER V. SWOPE, 103 F.2D
707.  AFTER SENTENCE OF DEATH, THE TEST OF INSANITY IS WHETHER THE
PRISONER HAS NOT "FROM THE DEFECTS OF HIS FACULTIES, SUFFICIENT
INTELLIGENCE TO UNDERSTAND THE NATURE OF THE PROCEEDINGS AGAINST HIM,
WHAT HE WAS TRIED FOR, THE PURPOSE OF HIS PUNISHMENT, THE IMPENDING
FATE WHICH AWAITS HIM, A SUFFICIENT UNDERSTANDING TO KNOW ANY FACT
WHICH MIGHT EXIST WHICH WOULD MAKE HIS PUNISHMENT UNJUST OR UNLAWFUL,
AND THE INTELLIGENCE REQUISITE TO CONVEY SUCH INFORMATION TO HIS
ATTORNEYS OR THE COURT."  IN RE SMITH, 25 N.M. 48, 59, 176 P. 819,
823.  SEE ALSO PEOPLE V. GEARY, 298 ILL. 236, 131 N.E. 652; IN RE
GRAMMER, 104 NEB. 744, 178 N.W. 624. 

FN4  IN THESE 4 STATES, 3 HAVE STATUTORY PROVISIONS DEALING WITH
INSANITY AFTER CONVICTION BUT BEFORE SENTENCE, AND 1 HAS A PROVISION
DEALING WITH INSANITY AFTER CONVICTION.  COMPARE STATE V. ALLEN, 204
LA. 513, 15 SO.2D 870. 

                APPENDIX TO OPINION OF FRANKFURTER, J. 

STATE LEGISLATION AND JUDICIAL DECISIONS CONCERNING EXECUTION OF
DEATH PENALTY WHERE INSANITY SUPERVENES AFTER SENTENCE.  FN1 

A. STATES IN WHICH PROBLEM DOES NOT ARISE BECAUSE THEY HAVE NO DEATH
PENALTY:  FN2 

(1) ME. REV. STAT. C. 117, SEC. 1(1944). 

(2)  MICH. COMP. LAWS SEC. 750.316(1948). 

(3)  MINN. STAT. SEC. 619.07(HENDERSON 1945). 

(4)  N.D. REV. CODE SEC. 12-2713(1943).  FN3 

(5)  R.I. GEN. LAWS C. 606, SEC. 2(1938).  FN3 

(6)  WIS. STAT. SEC. 340.02(1947). 

B. STATES SUSPENDING EXECUTION OF DEATH PENALTY UNDER STATUTORY OR
COMMON LAW PROVISIONS FOR HEARING BEFORE JUDGE OR JUDGE AND JURY UPON
INITIATION BY JUDGE:  FN4 

I. STATUTORY PROCEDURE: 

(7)  ALA. CODE ANN. TIT. 15, SEC. 427(1940). 

(8)  COLO. STAT. ANN. C. 48, SECS. 6, 7(1935).  SEE BULGER V. PEOPLE,
61 COLO. 187, 156 P. 800. 

(9)  ILL. REV. STAT. C. 38, SECS. 593-94(1949).  SEE PEOPLE V. GEARY,
298 ILL. 236, 131 N.E. 652; PEOPLE V. PRESTON, 345 ILL. 11, 177 N.E.
761. 

(10)  LA. CODE CRIM. LAW & PROC. ANN. ART. 267(1943).  SEE STATE V.
ALLEN, 204 LA. 513, 15 SO.2D 870, 18 TULANE L. REV. 497; STATE V.
GUNTER, 208 LA. 694, 23 SO.2D 305; STATE V. HEBERT, 187 LA. 318, 174
SO. 369; LA. LAWS 1918, NO. 261, P. 483. 

(11)  N.J. STAT. ANN. SEC. 2:193-12(1939) IN CONNECTION WITH IN RE
LANG, 77 N.J.L. 207, 71 A. 47; IN RE HERRON, 77 N.J.L. 315, 72 A. 133;
79 N.J.L. 67, 73 A. 599. 

II.  COMMON LAW PROCEDURE: 

(12)  NORTH CAROLINA.  SEE STATE V. VANN, 84 N.C. 722, 724; STATE V.
GODWIN, 216 N.C. 49, 3 S.E.2D 347; STATE V. SULLIVAN, 229 N.C. 251, 49
S.E.2D 458.  SEE ALSO N.C. GEN. STAT. ANN. SECS. 122-84, 122-85(SUPP. 
1949). 

(13)  SOUTH CAROLINA.  SEE STATE V. BETHUNE, 88 S.C. 401, 71 S.E.
29.  SEE ALSO S.C. CODE ANN. SEC. 6239(1942). 

(14)  TENNESSEE.  SEE JORDAN V. STATE, 124 TENN. 81, 90-91, 135 S.W.
327, 329-30; BONDS V. STATE, 8 TENN. 142.  SEE ALSO TENN. CODE ANN.
SECS. 4476, 4502(WILLIAMS 1934). 

(15)  WASHINGTON.  SEE STATE V. NORDSTROM, 21 WASH. 403, 58 P. 248;
GROSSI V. LONG, 136 WASH. 133, 238 P. 983; STATE EX REL. ALFANI V.
SUPERIOR COURT, 139 WASH. 125, 245 P. 929; STATE V. DAVIS, 6 WASH.2D
696, 717, 108 P.2D 641, 650-51. 

C. STATES SUSPENDING EXECUTION OF DEATH PENALTY UNDER STATUTORY
PROVISIONS FOR HEARING BEFORE JUDGE OR JURY UPON INITIATION BY
DESIGNATED PRISON OR POLICE OFFICIAL:  FN5 

I. OFFICIAL'S REFUSAL TO INITIATE SUBJECT TO JUDICIAL REVIEW: 

(16)  ARK. STAT. ANN. SECS. 41-109, 43-2622(1947).  SEE HOWELL V.
KINCANNON, 181 ARK. 58, 24 S.W.2D 953; HOWELL V. TODHUNTER, 181 ARK.
250, 25 S.W.2D 21; SHANK V. TODHUNTER, 189 ARK. 881, 75 S.W.2D 382. 

(17)  CAL. PEN.  CODE SECS. 1367, 3701-03(1949).  SEE PHYLE V. DUFFY,
34 CAL.2D 144, 208 P.2D 668. 

II.  WHETHER OFFICIAL'S REFUSAL TO INITIATE INQUIRY IS SUBJECT TO
REVIEW UNDEFINED BY LEGISLATION OR ADJUDICATION: 

(18)  IDAHO CODE ANN. SECS. 19-2709 TO 19-2712, 19-3301(1948). 

(19)  KY. REV. STAT. SEC. 431.240(1948).  SEE KY. CODES, CRIM. PRAC. 
SECS.  295-96(1948); BARRETT V. COMMONWEALTH, 202 KY. 153, 259 S.W. 25;
STUCKER V. COMMONWEALTH, 261 KY. 618, 88 S.W.2D 280; MURRELL V.
COMMONWEALTH, 291 KY. 65, 163 S.W.2D 1. 

(20)  MO. REV. STAT. ANN. SECS. 4192-94(1939). 

(21)  MONT. REV. CODES ANN. SECS. 94-8009 TO 94-8012(1947). 

(22)  NEV. COMP. LAWS ANN. SECS. 11192.01 TO 11192.06(SUPP.  1945). 

(23)  N.M. STAT. ANN. SECS. 42-1404 TO 42-1407(1941). 

(24)  OHIO GEN. CODE ANN. SECS. 13456-8, 13456-9(1939). 

(25)  OKLA. STAT. ANN. TIT. 22, SECS. 1005-08(1937).  SEE BINGHAM V.
STATE, 82 OKLA. CRIM. 305, 169 P.2D 311. 

(26)  PA. STAT. ANN. TIT. 50, SEC. 48(SUPP.  1948).  SEE COMMONWEALTH
V. BARNES, 280 PA. 351, 124 A. 636(WHETHER STATUTE APPLIES AFTER
CONVICTION AND SENTENCE OR WHETHER COMMON LAW PRINCICIPLES GOVERN IS
NOT CLEAR).  BUT CF. EX PARTE MCGINNIS, 14 W.N.C. 221(PA. SUP. CT.). 

(27) TEX. STAT., CODE CRIM. PROC. ARTS. 921-27(1948).  SEE DOTSON V.
STATE, 149 TEX. CRIM. 434, 195 S.W.2D 372.  A HEARING MAY ALSO BE
INITIATED ON THE AFFIDAVITS OF TWO PRIVATE PHYSICIANS.  CF. EX PARTE
MILLIKIN, 108 TEX. CRIM. 121, 299 S.W. 433; MILLIKIN V. JEFFREY, 117
TEX. 134, 299 S.W. 393(SIMILAR EARLIER STATUTE). 

(28)  UTAH CODE ANN. SECS. 105-37-9 TO 105-37-12(1943).  SEE STATE EX
REL. JOHNSON V. ALEXANDER, 87 UTAH 376, 49 P.2D 408; STATE V. GREEN, 88
UTAH 491, 55 P.2D 1324. 

(29)  WYO. COMP. STAT. ANN. SECS. 10-1701, 10-1702(1945). 

III.  OFFICIAL'S REFUSAL TO INITIATE GIVEN EXPLICIT FINALITY WITHOUT
REVIEW: 

NONE. 

D. STATES SUSPENDING EXECUTION OF DEATH PENALTY UNDER STATUTORY
PROVISIONS FOR INQUIRY BY GOVERNOR OR BY A BODY OF PHYSICIANS AND
LAYMEN ON INITIATION BY DESIGNATED PRISON OR POLICE OFFICIAL: 

I. PROCEEDING APPEARS TO AFFORD OPPORTUNITY TO BE HEARD: 

(30)  IOWA CODE SECS. 792.5 TO 792.7(1946). 

II.  PROCEEDING APPEARS TO BE EX PARTE: 

(31)  CONN. GEN. STAT. SEC. 8817(1949). 

(32)  KAN. GEN. STAT. ANN. SEC. 62-2406(1935). 

(33)  NEB. REV. STAT. SEC. 29-2509(1943).  SEE IN RE GRAMMER, 104
NEB. 744, 178 N.W. 624. 

III.  WHETHER PROCEEDING IS EX PARTE OR AFFORDS OPPORTUNITY TO BE
HEARD IS UNCERTAIN: 

(34)  ARIZ. CODE ANN. SECS. 44-2307, 44-2309(1939). 

(35)  FLA. STAT. SEC. 922.07(1941). 

(36)  MISS.  CODE ANN. SEC. 2558(1942). 

E. STATES IN WHICH SUSPENSION OF EXECUTION OF DEATH PENALTY BECAUSE
OF INSANITY IS AT DISCRETION OF GOVERNOR: 

(37)  GA. CODE ANN. SECS. 27-2601, 27-2602(1936), SOLESBEE V.
BALKCOM, 205 GA. 122, 52 S.E.2D 433. 

(38)  INDIANA.  DIAMOND V. STATE, 195 IND. 285, 144 N.E. 466(ONLY
REMEDY IS REPRIEVE BY GOVERNOR). 

(39)  MASS. GEN. LAWS C. 279, SEC. 48(1932), JUGGINS V. EXECUTIVE
COUNCIL, 257 MASS. 386, 154 N.E. 72(ONLY REMEDY SEEMS TO BE REPRIEVE BY
GOVERNOR WITH ADVICE AND CONSENT OF EXECUTIVE COUNCIL). 

F. STATES AS TO WHICH LEGISLATION OR JUDICIAL DECISIONS AFFORD NO
CLEAR BASIS FOR CLASSIFICATION: 

(40)  DELAWARE.  COMPARE DEL. REV. CODE SEC. 3083(1935)(INSANITY
AFTER CONVICTION BUT BEFORE SENTENCE IN CAPITAL CASES); ID. SEC.
3084(INSANITY WHILE SERVING IMPRISONMENT SENTENCE). 

(41)  MARYLAND.  COMPARE MD. ANN. CODE GEN. LAWS ART. 27, SEC. 798;
ART. 59, SEC. 47(1939)(INSANITY WHILE SERVING IMPRISONMENT SENTENCE). 

(42)  NEW HAMPSHIRE. 

(43)  N.Y. CRIM. CODE SEC. 495A.  COMPARE 2 REP. ATTY. GEN. N.Y. 294,
297(1914), WITH PEOPLE V. SKWIRSKY, 213 N.Y. 151, 153-54, 107 N.E. 47
48. 

(44)  OREGON.  COMPARE ORE.  COMP.  LAWS ANN. SECS. 26-930, 26
931(1940)(INSANITY AT TRIAL). 

(45)  SOUTH DAKOTA.  COMPARE S.D. CODE SEC. 34.2001(1939)(A PERSON
CANNOT "BE TRIED, ADJUDGED TO PUNISHMENT, OR PUNISHED FOR A PUBLIC
OFFENSE WHILE HE IS INSANE"); ID. SECS. 34.2002 TO 34.2004(INSANITY
AFTER CONVICTION BUT BEFORE SENTENCE). 

(46)  VERMONT. 

(47)  VIRGINIA.  COMPARE VA. CODE ANN. SECS. 19-208, 37
93(1950)(INSANITY AFTER CONVICTION BUT BEFORE SENTENCE); ID. SEC. 19
209(INSANITY WHILE SERVING IMPRISONMENT SENTENCE). 

(48)  WEST VIRGINIA.  COMPARE W. VA. CODE ANN. SEC.
6198(1949)(INSANITY AFTER CONVICTION OR WHILE SERVING SENTENCE). 

FN1  IT IS APPROPRIATE TO GIVE WARNING THAT THE MEANING ATTRIBUTED TO
SOME OF THE STATUTES CITED IN THIS APPENDIX DOES NOT HAVE THE BENEFIT
OF GUIDING STATE ADJUDICATION AND THAT, EVEN WHEN SUCH ADJUDICATION IS
AVAILABLE TO THROW LIGHT ON STATUTORY MEANING OR ON THE STATE'S COMMON
LAW, CLASSIFICATION HAS BEEN BASED ON JUDICIAL PRONOUNCEMENTS WHICH ARE
NOT ALWAYS EXPLICIT HOLDINGS.  THE ASCERTAINMENT OF THE LAW OF A STATE
WHEN THERE IS NOT A CLEAR RULING BY THE HIGHEST COURT OF THAT STATE IS
TREACHEROUS BUSINESS.  IT SHOULD ALSO BE ADDED THAT WHILE THIS APPENDIX
IS BASED ON THE LATEST LEGAL MATERIALS IN THE LIBRARY OF THIS COURT
THAT IS NO GUARANTEE THAT THERE MAY NOT BE STILL LATER RELEVANT LOCAL
MATERIALS. 

FN2  THE STATUTES CITED GIVE THE PENALTY FOR FIRST DEGREE MURDER. 
SEE ALSO GRUNHUT, PENAL REFORM 7(1948). 

FN3 THE PENALTY FOR FIRST DEGREE MURDER IS LIFE IMPRISONMENT UNLESS A
PERSON IS UNDER SENTENCE OF LIFE IMPRISONMENT AT THE TIME OF
CONVICTION. 

FN4  IN ALL STATES PROVIDING FOR SUSPENSION OF DEATH PENALTY UPON
SUPERVENING INSANITY, THE PROCEDURAL PROBLEM RAISES TWO QUESTIONS: 

(1)  WHO SHALL DECIDE WHETHER THERE HAS BEEN A SUFFICIENT PRIMA FACIE
SHOWING OF INSANITY TO WARRANT INITIATION OF A FURTHER PROCEEDING; 

(2)  WHO SHALL BE THE FACT FINDER IN SUCH PROCEEDING. 

FN5  SEE NOTE 4 SUPRA.  MOST OF THE STATES IN PARTS C AND D REQUIRE
THE OFFICIAL RESPONSIBLE FOR INITIATING THE FURTHER INQUIRY TO ACT IF
THERE IS "GOOD REASON," OR A LIKE GROUND, FOR BELIEVING THAT THE
CONVICTED MAN IS INSANE.  IN SOME OF THESE STATES THE RELEVANT STATUTE
PROVIDES THAT THE OFFICIAL "MAY" ACT WHERE "GOOD REASON" EXISTS,
THEREBY RAISING THE FAMILIAR PROBLEM AS TO WHEN "MAY," CONSIDERING ITS
FUNCTION, MEANS "MUST" IN LEGISLATIVE ENGLISH.  COMPARE HOWELL V.
TODHUNTER, 181 ARK. 250, 25 S.W.2D 21. 
..END :











WONG YANG SUNG V. MCGRATH, 339 U.S. 33 


NO. 154.  ARGUED DECEMBER 6, 1949.  - DECIDED FEBRUARY 20, 1950.  - 84
U.S. APP. D.C. 419, 174 F.2D 158, REVERSED. 


1.  ADMINISTRATIVE HEARINGS IN PROCEEDINGS FOR THE DEPORTATION OF
ALIENS MUST CONFORM TO THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. SECS. 1001 ET SEQ. PP. 35-53. 

2.  THE HISTORY OF THIS ACT DISCLOSES THAT IT IS REMEDIAL LEGISLATION
WHICH SHOULD BE CONSTRUED, SO FAR AS ITS TEXT PERMITS, TO GIVE EFFECT
TO ITS REMEDIAL PURPOSES WHERE THE EVILS IT WAS AIMED AT APPEAR.  PP.
36-41. 

3.  ONE OF THE FUNDAMENTAL PURPOSES OF THE ACT WAS TO AMELIORATE THE
EVILS RESULTING FROM THE PRACTICE OF COMMINGLING IN ONE PERSON THE
DUTIES OF PROSECUTOR AND JUDGE.  PP. 41-45, 46. 

4.  A HEARING IN A PROCEEDING FOR THE DEPORTATION OF AN ALIEN WAS
PRESIDED OVER BY A "PRESIDING INSPECTOR" OF THE IMMIGRATION SERVICE,
WHO HAD NOT INVESTIGATED THAT PARTICULAR CASE BUT WHOSE GENERAL DUTIES
INCLUDED THE INVESTIGATION OF SIMILAR CASES.  THERE BEING NO "EXAMINING
INSPECTOR" PRESENT TO CONDUCT THE PROSECUTION, IT WAS THE DUTY OF THE
"PRESIDING INSPECTOR" TO CONDUCT THE INTERROGATION OF THE ALIEN AND THE
GOVERNMENT'S WITNESSES, CROSS-EXAMINE THE ALIEN'S WITNESSES, AND
"PRESENT SUCH EVIDENCE AS IS NECESSARY TO SUPPORT THE CHARGES IN THE
WARRANT OF ARREST."  IT MIGHT BECOME HIS DUTY TO LODGE AN ADDITIONAL
CHARGE AGAINST THE ALIEN AND HEAR THE EVIDENCE ON THAT CHARGE.  AFTER
THE HEARING, HE WAS REQUIRED TO PREPARE A SUMMARY OF THE EVIDENCE,
PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND A PROPOSED ORDER,
FOR THE CONSIDERATION OF THE COMMISSIONER OF IMMIGRATION.  HELD:  THIS
WAS CONTRARY TO THE PURPOSE OF THE ADMINISTRATIVE PROCEDURE ACT TO
AMELIORATE THE EVILS RESULTING FROM A COMBINATION OF THE PROSECUTING
AND ADJUDICATING FUNCTIONS IN ADMINISTRATIVE PROCEEDINGS.  PP. 45-48. 

5.  SECTION 5 OF THE ADMINISTRATIVE PROCEDURE ACT, WHICH ESTABLISHES
CERTAIN FORMAL REQUIREMENTS FOR EVERY "ADJUDICATION REQUIRED BY STATUTE
TO BE DETERMINED ON THE RECORD AFTER OPPORTUNITY FOR AGENCY HEARING,"
APPLIES TO DEPORTATION PROCEEDINGS CONDUCTED BY THE IMMIGRATION
SERVICE, ALTHOUGH THE IMMIGRATION ACT CONTAINS NO EXPRESS REQUIREMENT
FOR HEARINGS IN DEPORTATION PROCEEDINGS.  PP. 48-51. 

(A)  THE LIMITATION OF SEC. 5 OF THE ADMINISTRATIVE PROCEDURE ACT TO
HEARINGS "REQUIRED BY STATUTE" DOES NOT EXEMPT HEARINGS HELD BY
COMPULSION BUT ONLY THOSE WHICH ADMINISTRATIVE AGENCIES MAY HOLD BY
REGULATION, RULE, CUSTOM, OR SPECIAL DISPENSATION.  P. 50. 

(B)  THEY DO NOT EXEMPT HEARINGS THE REQUIREMENT FOR WHICH HAS BEEN
READ INTO A STATUTE BY THIS COURT IN ORDER TO SAVE THE STATUTE FROM
CONSTITUTIONAL INVALIDITY.  PP. 50-51. 

6.  THE EXCEPTION IN SEC. 7(A) OF THE ADMINISTRATIVE PROCEDURE ACT OF
PROCEEDINGS BEFORE "OFFICERS SPECIALLY PROVIDED FOR BY OR DESIGNATED
PURSUANT TO STATUTE" DOES NOT EXEMPT DEPORTATION HEARINGS HELD BEFORE
IMMIGRANT INSPECTORS.  PP. 51-53. 

(A)  NOTHING IN THE IMMIGRATION ACT SPECIFICALLY PROVIDES THAT
IMMIGRANT INSPECTORS SHALL CONDUCT DEPORTATION HEARINGS OR BE
DESIGNATED TO DO SO.  PP. 51-52. 

WONG YANG SUNG V. MCGRATH, ATTORNEY GENERAL, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING, THE DISTRICT COURT HELD THAT THE
ADMINISTRATIVE PROCEDURE ACT OF JUNE 11, 1946, 60 STAT. 237, 5 U.S.C.
SECS. 1001 ET SEQ., DOES NOT APPLY TO DEPORTATION HEARINGS.  80
F.SUPP.  235.  THE COURT OF APPEALS AFFIRMED.  84 U.S. APP. D.C. 419,
174 F.2D 158.  THIS COURT GRANTED CERTIORARI.  338 U.S. 812.  REVERSED,
P. 53. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS HABEAS CORPUS PROCEEDING INVOLVES A SINGLE ULTIMATE QUESTION -
WHETHER ADMINISTRATIVE HEARINGS IN DEPORTATION CASES MUST CONFORM TO
REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT OF JUNE 11, 1946, 60
STAT. 237, 5 U.S.C. SECS. 1001 ET SEQ. 

WONG YANG SUNG, NATIVE AND CITIZEN OF CHINA, WAS ARRESTED BY
IMMIGRATION OFFICIALS ON A CHARGE OF BEING UNLAWFULLY IN THE UNITED
STATES THROUGH HAVING OVERSTAYED SHORE LEAVE AS ONE OF A SHIPPING
CREW.  A HEARING WAS HELD BEFORE AN IMMIGRANT INSPECTOR WHO RECOMMENDED
DEPORTATION.  THE ACTING COMMISSIONER APPROVED; AND THE BOARD OF
IMMIGRATION APPEALS AFFIRMED. 

WONG YANG SUNG THEN SOUGHT RELEASE FROM CUSTODY BY HABEAS CORPUS
PROCEEDINGS IN DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, UPON THE
SOLE GROUND THAT THE ADMINISTRATIVE HEARING WAS NOT CONDUCTED IN
CONFORMITY WITH SECS. 5 AND 11 OF THE ADMINISTRATIVE PROCEDURE ACT. 
FN1 THE GOVERNMENT ADMITTED NONCOMPLIANCE, BUT ASSERTED THAT THE ACT
DID NOT APPLY.  THE COURT, AFTER HEARING, DISCHARGED THE WRIT AND
REMANDED THE PRISONER TO CUSTODY, HOLDING THE ADMINISTRATIVE PROCEDURE
ACT INAPPLICABLE TO DEPORTATION HEARINGS.  80 F.SUPP.  235.  THE COURT
OF APPEALS AFFIRMED.  84 U.S. APP. D.C. 419, 174 F.2D 158.  PRISONER'S
PETITION FOR CERTIORARI WAS NOT OPPOSED BY THE GOVERNMENT AND, BECAUSE
THE QUESTION PRESENTED HAS OBVIOUS IMPORTANCE IN THE ADMINISTRATION OF
THE IMMIGRATION LAWS, WE GRANTED REVIEW.  338 U.S. 812. 

            I. 

THE ADMINISTRATIVE PROCEDURE ACT OF JUNE 11, 1946, SUPRA, IS A NEW,
BASIC AND COMPREHENSIVE REGULATION OF PROCEDURES IN MANY AGENCIES, MORE
THAN A FEW OF WHICH CAN ADVANCE ARGUMENTS THAT ITS GENERALITIES SHOULD
NOT OR DO NOT INCLUDE THEM.  DETERMINATION OF QUESTIONS OF ITS COVERAGE
MAY WELL BE APPROACHED THROUGH CONSIDERATION OF ITS PURPOSES AS
DISCLOSED BY ITS BACKGROUND. 

MULTIPLICATION OF FEDERAL ADMINISTRATIVE AGENCIES AND EXPANSION OF
THEIR FUNCTIONS TO INCLUDE ADJUDICATIONS WHICH HAVE SERIOUS IMPACT ON
PRIVATE RIGHTS HAS BEEN ONE OF THE DRAMATIC LEGAL DEVELOPMENTS OF THE
PAST HALF-CENTURY  FN2.  PARTLY FROM RESTRICTION BY STATUTE, PARTLY
FROM JUDICIAL SELF-RESTRAINT, AND PARTLY BY NECESSITY - FROM THE NATURE
OF THEIR MULTITUDINOUS AND SEMILEGISLATIVE OR EXECUTIVE TASKS - THE
DECISIONS OF ADMINISTRATIVE TRIBUNALS WERE ACCORDED CONSIDERABLE
FINALITY, AND ESPECIALLY WITH RESPECT TO FACT FINDING.  FN3  THE
CONVICTION DEVELOPED, PARTICULARLY WITHIN THE LEGAL PROFESSION, THAT
THIS POWER WAS NOT SUFFICIENTLY SAFEGUARDED AND SOMETIMES WAS PUT TO
ARBITRARY AND BIASED USE.  FN4 

CONCERN OVER ADMINISTRATIVE IMPARTIALITY AND RESPONSE TO GROWING
DISCONTENT WAS REFLECTED IN CONGRESS AS EARLY AS 1929, WHEN SENATOR
NORRIS INTRODUCED A BILL TO CREATE A SEPARATE ADMINISTRATIVE COURT. 
FN5  FEARS AND DISSATISFACTIONS INCREASED AS TRIBUNALS GREW IN NUMBER
AND JURISDICTION, AND A SUCCESSION OF BILLS OFFERING VARIOUS REMEDIES
APPEARED IN CONGRESS.  FN6 INQUIRIES INTO THE PRACTICES OF STATE
AGENCIES, WHICH TENDED TO PARALLEL OR FOLLOW THE FEDERAL PATTERN, WERE
INSTITUTED IN SEVERAL STATES, AND SOME STUDIES NOTEWORTHY FOR
THOROUGHNESS, IMPARTIALITY AND VISION RESULTED.  FN7 

THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT ALSO BECAME CONCERNED
AS TO WHETHER THE STRUCTURE AND PROCEDURE OF THESE BODIES WAS CONDUCIVE
TO FAIRNESS IN THE ADMINISTRATIVE PROCESS.  PRESIDENT ROOSEVELT'S
COMMITTEE ON ADMINISTRATIVE MANAGEMENT IN 1937 RECOMMENDED COMPLETE
SEPARATION OF ADJUDICATING FUNCTIONS AND PERSONNEL FROM THOSE HAVING TO
DO WITH INVESTIGATION OR PROSECUTION.  FN8  THE PRESIDENT EARLY IN 1939
ALSO DIRECTED THE ATTORNEY GENERAL TO NAME "A COMMITTEE OF EMINENT
LAWYERS, JURISTS, SCHOLARS, AND ADMINISTRATORS TO REVIEW THE ENTIRE
ADMINISTRATIVE PROCESS IN THE VARIOUS DEPARTMENTS OF THE EXECUTIVE
GOVERNMENT AND TO RECOMMEND IMPROVEMENTS, INCLUDING THE SUGGESTION OF
ANY NEEDED LEGISLATION."  FN9 

SO STRONG WAS THE DEMAND FOR REFORM, HOWEVER, THAT CONGRESS DID NOT
AWAIT THE COMMITTEE'S REPORT BUT PASSED WHAT WAS KNOWN AS THE WALTER
LOGAN BILL, A COMPREHENSIVE AND RIGID PRESCRIPTION OF STANDARDIZED
PROCEDURES FOR ADMINISTRATIVE AGENCIES.  FN10  THIS BILL WAS VETOED BY
PRESIDENT ROOSEVELT DECEMBER 18, 1940,  FN11  AND THE VETO WAS
SUSTAINED BY THE HOUSE.  FN12  BUT THE PRESIDENT'S VETO MESSAGE MADE NO
DENIAL OF THE NEED FOR REFORM.  RATHER IT POINTED OUT THAT THE TASK OF
THE COMMITTEE, WHOSE OBJECTIVE WAS "TO SUGGEST IMPROVEMENTS TO MAKE THE
PROCESS MORE WORKABLE AND MORE JUST," HAD PROVED "UNEXPECTEDLY
COMPLEX."  THE PRESIDENT SAID, "I SHOULD DESIRE TO AWAIT THEIR REPORT
AND RECOMMENDATIONS BEFORE APPROVING ANY MEASURE IN THIS COMPLICATED
FIELD."  FN13 

THE COMMITTEE DIVIDED IN ITS VIEWS AND BOTH THE MAJORITY AND THE
MINORITY SUBMITTED BILLS  FN14 WHICH WERE INTRODUCED IN 1941.  A
SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE HELD EXHAUSTIVE HEARINGS
ON THREE PROPOSED MEASURES,  FN15  BUT, BEFORE THE GATHERING STORM OF
NATIONAL EMERGENCY AND WAR, CONSIDERATION OF THE PROBLEM WAS PUT
ASIDE.  THOUGH BILLS ON THE SUBJECT REAPPEARED IN 1944,  FN16  THEY DID
NOT ATTRACT MUCH ATTENTION. 

THE MCCARRAN-SUMNERS BILL, WHICH EVOLVED INTO THE PRESENT ACT, WAS
INTRODUCED IN 1945.  FN17 ITS CONSIDERATION AND HEARING, ESPECIALLY OF
AGENCY INTERESTS, WAS PAINSTAKING.  ALL ADMINISTRATIVE AGENCIES WERE
INVITED TO SUBMIT THEIR VIEWS IN WRITING.  A TENTATIVE REVISED BILL WAS
THEN PREPARED AND INTERESTED PARTIES AGAIN WERE INVITED TO SUBMIT
CRITICISMS.  FN18  THE ATTORNEY GENERAL NAMED REPRESENTATIVES OF THE
DEPARTMENT OF JUSTICE TO CANVASS THE AGENCIES AND REPORT THEIR
CRITICISMS, AND SUBMITTED A FAVORABLE REPORT ON THE BILL AS FINALLY
REVISED.  FN19 IT PASSED BOTH HOUSES WITHOUT OPPOSITION AND WAS SIGNED
BY PRESIDENT TRUMAN JUNE 11, 1946.  FN20 

THE ACT THUS REPRESENTS A LONG PERIOD OF STUDY AND STRIFE; IT SETTLES
LONG-CONTINUED AND HARD-FOUGHT CONTENTIONS, AND ENACTS A FORMULA UPON
WHICH OPPOSING SOCIAL AND POLITICAL FORCES HAVE COME TO REST.  IT
CONTAINS MANY COMPROMISES AND GENERALITIES AND, NO DOUBT, SOME
AMBIGUITIES.  EXPERIENCE MAY REVEAL DEFECTS.  BUT IT WOULD BE A
DISSERVICE TO OUR FORM OF GOVERNMENT AND TO THE ADMINISTRATIVE PROCESS
ITSELF IF THE COURTS SHOULD FAIL, SO FAR AS THE TERMS OF THE ACT
WARRANT, TO GIVE EFFECT TO ITS REMEDIAL PURPOSES WHERE THE EVILS IT WAS
AIMED AT APPEAR. 

II. 

OF THE SEVERAL ADMINISTRATIVE EVILS SOUGHT TO BE CURED OR MINIMIZED,
ONLY TWO ARE PARTICULARLY RELEVANT TO ISSUES BEFORE US TODAY.  ONE
PURPOSE WAS TO INTRODUCE GREATER UNIFORMITY OF PROCEDURE AND
STANDARDIZATION OF ADMINISTRATIVE PRACTICE AMONG THE DIVERSE AGENCIES
WHOSE CUSTOMS HAD DEPARTED WIDELY FROM EACH OTHER.  FN21  WE PURSUE
THIS NO FURTHER THAN TO NOTE THAT ANY EXCEPTION WE MAY FIND TO ITS
APPLICABILITY WOULD TEND TO DEFEAT THIS PURPOSE. 

MORE FUNDAMENTAL, HOWEVER, WAS THE PURPOSE TO CURTAIL AND CHANGE THE
PRACTICE OF EMBODYING IN ONE PERSON OR AGENCY THE DUTIES OF PROSECUTOR
AND JUDGE.  THE PRESIDENT'S COMMITTEE ON ADMINISTRATIVE MANAGEMENT
VOICED IN 1937 THE THEME WHICH, WITH VARIATIONS IN LANGUAGE, WAS
REITERATED THROUGHOUT THE LEGISLATIVE HISTORY OF THE ACT.  THE
COMMITTEE'S REPORT, WHICH PRESIDENT ROOSEVELT TRANSMITTED TO CONGRESS
WITH HIS APPROVAL AS "A GREAT DOCUMENT OF PERMANENT IMPORTANCE," FN22
SAID: 

"  ...  THE INDEPENDENT COMMISSION IS OBLIGED TO CARRY ON JUDICIAL
FUNCTIONS UNDER CONDITIONS WHICH THREATEN THE IMPARTIAL PERFORMANCE OF
THAT JUDICIAL WORK.  THE DISCRETIONARY WORK OF THE ADMINISTRATOR IS
MERGED WITH THAT OF THE JUDGE.  PRESSURES AND INFLUENCES PROPERLY
ENOUGH DIRECTED TOWARD OFFICERS RESPONSIBLE FOR FORMULATING AND
ADMINISTERING POLICY CONSTITUTE AN UNWHOLESOME ATMOSPHERE IN WHICH TO
ADJUDICATE PRIVATE RIGHTS.  BUT THE MIXED DUTIES OF THE COMMISSIONS
RENDER ESCAPE FROM THESE SUBVERSIVE INFLUENCES IMPOSSIBLE. 

"FURTHERMORE, THE SAME MEN ARE OBLIGED TO SERVE BOTH AS PROSECUTORS
AND AS JUDGES.  THIS NOT ONLY UNDERMINES JUDICIAL FAIRNESS; IT WEAKENS
PUBLIC CONFIDENCE IN THAT FAIRNESS.  COMMISSION DECISIONS AFFECTING
PRIVATE RIGHTS AND CONDUCT LIE UNDER THE SUSPICION OF BEING
RATIONALIZATIONS OF THE PRELIMINARY FINDINGS WHICH THE COMMISSION, IN
THE ROLE OF PROSECUTOR, PRESENTED TO ITSELF."  ADMINISTRATIVE
MANAGEMENT IN THE GOVERNMENT OF THE UNITED STATES, REPORT OF THE
PRESIDENT'S COMMITTEE ON ADMINISTRATIVE MANAGEMENT, 36-37(1937). 

THE COMMITTEE THEREFORE RECOMMENDED A REDISTRIBUTION OF FUNCTIONS
WITHIN THE REGULATORY AGENCIES.  "(IT) WOULD BE DIVIDED INTO AN
ADMINISTRATIVE SECTION AND A JUDICIAL SECTION" AND THE ADMINISTRATIVE
...  " AND THE JUDICIAL SECTION "WOULD SIT AS AN IMPARTIAL,
INDEPENDENT BODY TO MAKE DECISIONS AFFECTING THE PUBLIC INTEREST AND
PRIVATE RIGHTS UPON THE BASIS OF THE RECORDS AND FINDINGS PRESENTED TO
IT BY THE ADMINISTRATIVE SECTION."  ID. AT 37. 

ANOTHER STUDY WAS MADE BY A DISTINGUISHED COMMITTEE NAMED BY THE
SECRETARY OF LABOR, WHOSE JURISDICTION AT THE TIME INCLUDED THE
IMMIGRATION AND NATURALIZATION SERVICE.  SOME OF THE COMMITTEE'S
OBSERVATIONS HAVE RELEVANCY TO THE PROCEDURE UNDER EXAMINATION HERE. 
IT SAID: 

"THE INSPECTOR WHO PRESIDES OVER THE FORMAL HEARING IS IN MANY
RESPECTS COMPARABLE TO A TRIAL JUDGE.  HE HAS, AT A MINIMUM, THE
FUNCTION OF DETERMINING - SUBJECT TO OBJECTION ON THE ALIEN'S BEHALF -
WHAT GOES INTO THE WRITTEN RECORD UPON WHICH DECISION ULTIMATELY IS TO
BE BASED.  UNDER THE EXISTING PRACTICE HE HAS ALSO THE FUNCTION OF
COUNSEL REPRESENTING THE MOVING PARTY - HE DOES NOT MERELY ADMIT
EVIDENCE AGAINST THE ALIEN; HE HAS THE RESPONSIBILITY OF SEEING THAT
SUCH EVIDENCE IS PUT INTO THE RECORD.  THE PRECISE SCOPE OF HIS
APPROPRIATE FUNCTIONS IS THE FIRST QUESTION TO BE CONSIDERED."  THE
SECRETARY OF LABOR'S COMMITTEE ON ADMINISTRATIVE PROCEDURE, THE
IMMIGRATION AND NATURALIZATION SERVICE, 77(MIMEO.  1940). 

FURTHER: 

"MERELY TO PROVIDE THAT IN PARTICULAR CASES DIFFERENT INSPECTORS
SHALL INVESTIGATE AND HEAR IS AN INSUFFICIENT GUARANTEE OF INSULATION
AND INDEPENDENCE OF THE PRESIDING OFFICIAL.  THE PRESENT ORGANIZATION
OF THE FIELD STAFF NOT ONLY GIVES WORK OF BOTH KINDS COMMONLY TO THE
SAME INSPECTOR BUT TENDS TOWARD AN IDENTITY OF VIEWPOINT AS BETWEEN
INSPECTORS WHO ARE CHIEFLY DOING ONLY ONE OR THE OTHER KIND OF WORK. 
... 

"  ...  WE RECOMMEND THAT THE PRESIDING INSPECTORS BE RELIEVED OF
THEIR PRESENT DUTIES OF PRESENTING THE CASE AGAINST ALIENS AND BE
CONFIRMED ENTIRELY TO THE DUTIES CUSTOMARY FOR A JUDGE.  THIS, OF
COURSE, WOULD REQUIRE THE ASSIGNMENT OF ANOTHER OFFICER TO PERFORM THE
TASK OF A PROSECUTING ATTORNEY.  THE APPROPRIATE OFFICER FOR THIS
PURPOSE WOULD SEEM TO BE THE INVESTIGATING INSPECTOR WHO, HAVING
PREPARED THE CASE AGAINST THE ALIEN, IS ALREADY THOROUGHLY FAMILIAR
WITH IT.  ... 

"A GENUINELY IMPARTIAL HEARING, CONDUCTED WITH CRITICAL DETACHMENT,
IS PSYCHOLOGICALLY IMPROBABLE IF NOT IMPOSSIBLE, WHEN THE PRESIDING
OFFICER HAS AT ONCE THE RESPONSIBILITY OF APPRAISING THE STRENGTH OF
THE CASE AND OF SEEKING TO MAKE IT AS STRONG AS POSSIBLE.  NOR IS
COMPLETE DIVORCE BETWEEN INVESTIGATION AND HEARING POSSIBLE SO LONG AS
THE PRESIDING INSPECTOR HAS THE DUTY HIMSELF OF ASSEMBLING AND
PRESENTING THE RESULTS OF THE INVESTIGATION.  ...  "  ID. AT 81-82. 

AND THE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE,
WHICH DIVIDED AS TO THE APPROPRIATE REMEDY,  FN23  WAS UNANIMOUS THAT
THIS EVIL EXISTED.  ITS FINAL REPORT SAID: 

"THESE TYPES OF COMMINGLING OF FUNCTIONS OF INVESTIGATION OR ADVOCACY
WITH THE FUNCTION OF DECIDING ARE THUS PLAINLY UNDESIRABLE.  BUT THEY
ARE ALSO AVOIDABLE AND SHOULD BE AVOIDED BY APPROPRIATE INTERNAL
DIVISION OF LABOR.  FOR THE DISQUALIFICATIONS PRODUCED BY INVESTIGATION
OR ADVOCACY ARE PERSONAL PSYCHOLOGICAL ONES WHICH RESULT FROM ENGAGING
IN THOSE TYPES OF ACTIVITY; AND THE PROBLEM IS SIMPLY ONE OF ISOLATING
THOSE WHO ENGAGE IN THE ACTIVITY.  CREATION OF INDEPENDENT HEARING
COMMISSIONERS INSULATED FROM ALL PHASES OF A CASE OTHER THAN HEARING
AND DECIDING WILL, THE COMMITTEE BELIEVES, GO FAR TOWARD SOLVING THIS
PROBLEM AT THE LEVEL OF THE INITIAL HEARING PROVIDED THE PROPER
SAFEGUARDS ARE ESTABLISHED TO ASSURE THE INSULATION.  ...  " REP. ATTY.
GEN. COMM. AD. PROC. 56(1941), S. DOC. NO. 8, 77TH CONG., 1ST SESS.
56(1941). 

THE ACT BEFORE US ADOPTS IN GENERAL THIS RECOMMENDED FORM OF REMEDIAL
ACTION.  A MINORITY OF THE COMMITTEE HAD, FURTHERMORE, URGED AN EVEN
MORE THOROUGHGOING SEPARATION AND SUPPORTED IT WITH A COGENT REPORT. 
ID. AT 203 ET SEQ.    SUCH WERE THE EVILS FOUND BY DISINTERESTED AND
COMPETENT STUDENTS.  SUCH WERE THE FACTS BEFORE CONGRESS WHICH GAVE
IMPETUS TO THE DEMAND FOR THE REFORM WHICH THIS ACT WAS INTENDED TO
ACCOMPLISH.  IT IS THE PLAIN DUTY OF THE COURTS, REGARDLESS OF THEIR
VIEWS OF THE WISDOM OR POLICY OF THE ACT, TO CONSTRUE THIS REMEDIAL
LEGISLATION TO ELIMINATE, SO FAR AS ITS TEXT PERMITS, THE PRACTICES IT
CONDEMNS. 

III. 

TURNING NOW TO THE CASE BEFORE US, WE FIND THE ADMINISTRATIVE HEARING
A PERFECT EXEMPLIFICATION OF THE PRACTICES SO UNANIMOUSLY CONDEMNED. 
THIS HEARING, WHICH FOLLOWED THE UNIFORM PRACTICE OF THE IMMIGRATION
SERVICE,  FN24  WAS BEFORE AN IMMIGRANT INSPECTOR, WHO, FOR PURPOSES OF
THE HEARING, IS CALLED THE "PRESIDING INSPECTOR."  EXCEPT WITH CONSENT
OF THE ALIEN, THE PRESIDING INSPECTOR MAY NOT BE THE ONE WHO
INVESTIGATED THE CASE.  8 C.F.R. 150.6(B).  FN25  BUT THE INSPECTOR'S
DUTIES INCLUDE INVESTIGATION OF LIKE CASES; AND WHILE HE IS TODAY
HEARING CASES INVESTIGATED BY A COLLEAGUE, TOMORROW HIS INVESTIGATION
OF A CASE MAY BE HEARD BEFORE THE INSPECTOR WHOSE CASE HE PASSES ON
TODAY.  AN "EXAMINING INSPECTOR" MAY BE DESIGNATED TO CONDUCT THE
PROSECUTION, 8 C.F.R. 150.6(N), BUT NONE WAS IN THIS CASE; AND, IN ANY
EVENT, THE EXAMINING INSPECTOR ALSO HAS THE SAME MIXED PROSECUTIVE AND
HEARING FUNCTIONS.  THE PRESIDING INSPECTOR, WHEN NO EXAMINING
INSPECTOR IS PRESENT, IS REQUIRED TO "CONDUCT THE INTERROGATION OF THE
ALIEN AND THE WITNESSES IN BEHALF OF THE GOVERNMENT AND SHALL CROSS
EXAMINE THE ALIEN'S WITNESSES AND PRESENT SUCH EVIDENCE AS IS NECESSARY
TO SUPPORT THE CHARGES IN THE WARRANT OF ARREST."  8 C.F.R. 150.6(B). 
IT MAY EVEN BECOME HIS DUTY TO LODGE AN ADDITIONAL CHARGE AGAINST THE
ALIEN AND PROCEED TO HEAR HIS OWN ACCUSATION IN LIKE MANNER.  8 C.F.R.
150.6(L).  THEN, AS SOON AS PRACTICABLE, HE IS TO PREPARE A SUMMARY OF
THE EVIDENCE, PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND A
PROPOSED ORDER.  A COPY IS FURNISHED THE ALIEN OR HIS COUNSEL, WHO MAY
FILE EXCEPTIONS AND BRIEF, 8 C.F.R. 150.7, WHEREUPON THE WHOLE IS
FORWARDED TO THE COMMISSIONER.  8 C.F.R. 150.9. 

THE ADMINISTRATIVE PROCEDURE ACT DID NOT GO SO FAR AS TO REQUIRE A
COMPLETE SEPARATION OF INVESTIGATING AND PROSECUTING FUNCTIONS FROM
ADJUDICATING FUNCTIONS.  BUT THAT THE SAFEGUARDS IT DID SET UP WERE
INTENDED TO AMELIORATE THE EVILS FROM THE COMMINGLING OF FUNCTIONS AS
EXEMPLIFIED HERE IS BEYOND DOUBT.  AND THIS COMMINGLING, IF
OBJECTIONABLE ANYWHERE, WOULD SEEM TO BE PARTICULARLY SO IN THE
DEPORTATION PROCEEDING, WHERE WE FREQUENTLY MEET WITH A VOTELESS CLASS
OF LITIGANTS WHO NOT ONLY LACK THE INFLUENCE OF CITIZENS, BUT WHO ARE
STRANGERS TO THE LAWS AND CUSTOMS IN WHICH THEY FIND THEMSELVES
INVOLVED AND WHO OFTEN DO NOT EVEN UNDERSTAND THE TONGUE IN WHICH THEY
ARE ACCUSED.  NOTHING IN THE NATURE OF THE PARTIES OR PROCEEDINGS
SUGGESTS THAT WE SHOULD STRAIN TO EXEMPT DEPORTATION PROCEEDINGS FROM
REFORMS IN ADMINISTRATIVE PROCEDURE APPLICABLE GENERALLY TO FEDERAL
AGENCIES. 

NOR CAN WE ACCORD ANY WEIGHT TO THE ARGUMENT THAT TO APPLY THE ACT TO
SUCH HEARINGS WILL CAUSE INCONVENIENCE AND ADDED EXPENSE TO THE
IMMIGRATION SERVICE.  OF COURSE IT WILL, AS IT WILL TO NEARLY EVERY
AGENCY TO WHICH IT IS APPLIED.  BUT THE POWER OF THE PURSE BELONGS TO
CONGRESS, AND CONGRESS HAS DETERMINED THAT THE PRICE FOR GREATER
FAIRNESS IS NOT TOO HIGH.  THE AGENCIES, UNLIKE THE ALIENS, HAVE READY
AND PERSUASIVE ACCESS TO THE LEGISLATIVE EAR AND IF ERROR IS MADE BY
INCLUDING THEM, RELIEF FROM CONGRESS IS A SIMPLE MATTER. 

THIS BRINGS US TO CONTENTIONS BOTH PARTIES HAVE ADVANCED BASED ON THE
PENDENCY IN CONGRESS OF BILLS TO EXEMPT THIS AGENCY FROM THE ACT. 
FOLLOWING AN ADVERSE DECISION,  FN26  THE DEPARTMENT ASKED CONGRESS FOR
EXEMPTING LEGISLATION,  FN27  WHICH APPROPRIATE COMMITTEES OF BOTH
HOUSES REPORTED FAVORABLY BUT IN DIFFERENT FORM AND SUBSTANCE.  FN28
CONGRESS ADJOURNED WITHOUT FURTHER ACTION.  THE GOVERNMENT ARGUES THAT
CONGRESS KNOWS THAT THE IMMIGRATION SERVICE HAS CONSTRUED THE ACT AS
NOT APPLYING TO DEPORTATION PROCEEDINGS, AND THAT IT "HAS TAKEN NO
ACTION INDICATING DISAGREEMENT WITH THAT INTERPRETATION"; THAT
THEREFORE IT "IS AT LEAST ARGUABLE THAT CONGRESS WAS PREPARED TO
SPECIFICALLY CONFIRM THE ADMINISTRATIVE CONSTRUCTION BY CLARIFYING
LEGISLATION."  WE DO NOT THINK WE CAN DRAW THAT INFERENCE FROM
INCOMPLETED STEPS IN THE LEGISLATIVE PROCESS.  CF. HELVERING V.
HALLOCK, 309 U.S. 106, 119-120. 

ON THE OTHER HAND, WE WILL NOT DRAW THE INFERENCE, URGED BY
PETITIONER, THAT AN AGENCY ADMITS THAT IT IS ACTING UPON A WRONG
CONSTRUCTION BY SEEKING RATIFICATION FROM CONGRESS.  PUBLIC POLICY
REQUIRES THAT AGENCIES FEEL FREE TO ASK LEGISLATION WHICH WILL
TERMINATE OR AVOID ADVERSE CONTENTIONS AND LITIGATIONS.  WE DO NOT FEEL
JUSTIFIED IN HOLDING THAT A REQUEST FOR AND FAILURE TO GET IN A SINGLE
SESSION OF CONGRESS CLARIFYING LEGISLATION ON A GENUINELY DEBATABLE
POINT OF AGENCY PROCEDURE ADMITS WEAKNESS IN THE AGENCY'S CONTENTIONS. 
WE DRAW, THEREFORE, NO INFERENCE IN FAVOR OF EITHER CONSTRUCTION OF THE
ACT - FROM THE DEPARTMENT'S REQUEST FOR LEGISLATIVE CLARIFICATION, FROM
THE CONGRESSIONAL COMMITTEES' WILLINGNESS TO CONSIDER IT, OR FROM
CONGRESS' FAILURE TO ENACT IT. 

WE COME, THEN, TO EXAMINATION OF THE TEXT OF THE ACT TO DETERMINE
WHETHER THE GOVERNMENT IS RIGHT IN ITS CONTENTIONS:  FIRST, THAT THE
GENERAL SCOPE OF SEC. 5 OF THE ACT DOES NOT COVER DEPORTATION
PROCEEDINGS; AND, SECOND, THAT EVEN IF IT DOES, THE PROCEEDINGS ARE
EXCLUDED FROM THE REQUIREMENTS OF THE ACT BY VIRTUE OF SEC. 7. 

                                 IV. 

THE ADMINISTRATIVE PROCEDURE ACT, SEC. 5, ESTABLISHES A NUMBER OF
FORMAL REQUIREMENTS TO BE APPLICABLE "IN EVERY CASE OF ADJUDICATION
REQUIRED BY STATUTE TO BE DETERMINED ON THE RECORD AFTER OPPORTUNITY
FOR AN AGENCY HEARING."  THE ARGUMENT HERE DEPENDS UPON THE WORDS
"ADJUDICATION REQUIRED BY STATUTE."  THE GOVERNMENT CONTENDS THAT THERE
IS NO EXPRESS REQUIREMENT FOR ANY HEARING OR ADJUDICATION IN THE
STATUTE AUTHORIZING DEPORTATION,  FN29  AND THAT THIS OMISSION SHIELDS
THESE PROCEEDINGS FROM THE IMPACT OF SEC. 5.  PETITIONER, ON THE OTHER
HAND, CONTENDS THAT DEPORTATION HEARINGS, THOUGH NOT EXPRESSLY REQUIRED
BY STATUTE, ARE REQUIRED UNDER THE DECISIONS OF THIS COURT,  FN30  AND
THE PROCEEDINGS, THEREFORE, ARE WITHIN THE SCOPE OF SEC. 5. 

BOTH PARTIES INVOKE MANY CITATIONS TO LEGISLATIVE HISTORY AS TO THE
MEANING GIVEN TO THESE KEY WORDS BY THE FRAMERS, ADVOCATES OR OPPONENTS
OF THE ADMINISTRATIVE PROCEDURE ACT.  BECAUSE SEC. 5 IN THE ORIGINAL
BILL APPLIED TO HEARINGS REQUIRED "BY LAW,"  FN31  BECAUSE IT WAS
SUGGESTED BY THE ATTORNEY GENERAL THAT IT SHOULD BE CHANGED TO
"REQUIRED BY STATUTE OR CONSTITUTION,"  FN32  AND BECAUSE IT FINALLY
EMERGED "REQUIRED BY STATUTE," THE GOVERNMENT ARGUES THAT THE SECTION
IS INTENDED TO APPLY ONLY WHEN EXPLICIT STATUTORY WORDS GRANTING A
RIGHT TO ADJUDICATION CAN BE POINTED OUT.  PETITIONER ON THE OTHER HAND
CITES REFERENCES WHICH WOULD INDICATE THAT THE LIMITATION TO STATUTORY
HEARING WAS MERELY TO AVOID CREATING BY INFERENCE A NEW RIGHT TO
HEARINGS WHERE NO RIGHT EXISTED OTHERWISE.  WE DO NOT KNOW.  THE
LEGISLATIVE HISTORY IS MORE CONFLICTING THAN THE TEXT IS AMBIGUOUS. 

BUT THE DIFFICULTY WITH ANY ARGUMENT PREMISED ON THE PROPOSITION THAT
THE DEPORTATION STATUTE DOES NOT REQUIRE A HEARING IS THAT, WITHOUT
SUCH HEARING, THERE WOULD BE NO CONSTITUTIONAL AUTHORITY FOR
DEPORTATION.  THE CONSTITUTIONAL REQUIREMENT OF PROCEDURAL DUE PROCESS
OF LAW DERIVES FROM THE SAME SOURCE AS CONGRESS' POWER TO LEGISLATE
AND, WHERE APPLICABLE, PERMEATES EVERY VALID ENACTMENT OF THAT BODY. 
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.  THE COURT SAID: 

"THIS IS THE REASONABLE CONSTRUCTION OF THE ACTS OF CONGRESS HERE IN
QUESTION, AND THEY NEED NOT BE OTHERWISE INTERPRETED.  IN THE CASE OF
ALL ACTS OF CONGRESS, SUCH INTERPRETATION OUGHT TO BE ADOPTED AS,
WITHOUT DOING VIOLENCE TO THE IMPORT OF THE WORDS USED, WILL BRING THEM
INTO HARMONY WITH THE CONSTITUTION."  THE JAPANESE IMMIGRANT CASE, 189
U.S. 86, 101. 

WE THINK THAT THE LIMITATION TO HEARINGS "REQUIRED BY STATUTE" IN
SEC. 5 OF THE ADMINISTRATIVE PROCEDURE ACT EXEMPTS FROM THAT SECTION'S
APPLICATION ONLY THOSE HEARINGS WHICH ADMINISTRATIVE AGENCIES MAY HOLD
BY REGULATION, RULE, CUSTOM, OR SPECIAL DISPENSATION; NOT THOSE HELD BY
COMPULSION.  WE DO NOT THINK THE LIMITING WORDS RENDER THE
ADMINISTRATIVE PROCEDURE ACT INAPPLICABLE TO HEARINGS, THE REQUIREMENT
FOR WHICH HAS BEEN READ INTO A STATUTE BY THE COURT IN ORDER TO SAVE
THE STATUTE FROM INVALIDITY.  THEY EXEMPT HEARINGS OF LESS THAN
STATUTORY AUTHORITY, NOT THOSE OF MORE THAN STATUTORY AUTHORITY.  WE
WOULD HARDLY ATTRIBUTE TO CONGRESS A PURPOSE TO BE LESS SCRUPULOUS
ABOUT THE FAIRNESS OF A HEARING NECESSITATED BY THE CONSTITUTION THAN
ONE GRANTED BY IT AS A MATTER OF EXPEDIENCY. 

INDEED, TO SO CONSTRUE THE IMMIGRATION ACT MIGHT AGAIN BRING IT INTO
CONSTITUTIONAL JEOPARDY.  WHEN THE CONSTITUTION REQUIRES A HEARING, IT
REQUIRES A FAIR ONE, ONE BEFORE A TRIBUNAL WHICH MEETS AT LEAST
CURRENTLY PREVAILING STANDARDS OF IMPARTIALITY.  A DEPORTATION HEARING
INVOLVES ISSUES BASIC TO HUMAN LIBERTY AND HAPPINESS AND, IN THE
PRESENT UPHEAVALS IN LANDS TO WHICH ALIENS MAY BE RETURNED, PERHAPS TO
LIFE ITSELF.  IT MIGHT BE DIFFICULT TO JUSTIFY AS MEASURING UP TO
CONSTITUTIONAL STANDARDS OF IMPARTIALITY A HEARING TRIBUNAL FOR
DEPORTATION PROCEEDINGS THE LIKE OF WHICH HAS BEEN CONDEMNED BY
CONGRESS AS UNFAIR EVEN WHERE LESS VITAL MATTERS OF PROPERTY RIGHTS ARE
AT STAKE. 

WE HOLD THAT THE ADMINISTRATIVE PROCEDURE ACT, SEC. 5, DOES COVER
DEPORTATION PROCEEDINGS CONDUCTED BY THE IMMIGRATION SERVICE. 

                                  V. 

THE REMAINING QUESTION IS WHETHER THE EXCEPTION OF SEC. 7(A) OF THE
ADMINISTRATIVE PROCEDURE ACT EXEMPTS DEPORTATION HEARINGS HELD BEFORE
IMMIGRANT INSPECTORS.  IT PROVIDES: 

"SEC. 7.  IN HEARINGS WHICH SECTION 4 OR 5 REQUIRES TO BE CONDUCTED
PURSUANT TO THIS SECTION - 

"(A)  PRESIDING OFFICERS.  - THERE SHALL PRESIDE AT THE TAKING OF
EVIDENCE (1) THE AGENCY, (2) ONE OR MORE MEMBERS OF THE BODY WHICH
COMPRISES THE AGENCY, OR (3) ONE OR MORE EXAMINERS APPOINTED AS
PROVIDED IN THIS ACT; BUT NOTHING IN THIS ACT SHALL BE DEEMED TO
SUPERSEDE THE CONDUCT OF SPECIFIED CLASSES OF PROCEEDINGS IN WHOLE OR
PART BY OR BEFORE BOARDS OR OTHER OFFICERS SPECIALLY PROVIDED FOR BY OR
DESIGNATED PURSUANT TO STATUTE.  ...  "  60 STAT. 237, 241, 5 U.S.C.
SEC. 1006. 

THE GOVERNMENT ARGUES THAT IMMIGRANT INSPECTORS ARE "SPECIALLY
PROVIDED FOR BY OR DESIGNATED PURSUANT TO" SEC. 16 OF THE IMMIGRATION
ACT, WHICH, IN PERTINENT PART, READS: 

"  ...  THE INSPECTION  ...  OF ALIENS, INCLUDING THOSE SEEKING
ADMISSION OR READMISSION TO OR THE PRIVILEGE OF PASSING THROUGH OR
RESIDING IN THE UNITED STATES, AND THE EXAMINATION OF ALIENS ARRESTED
WITHIN THE UNITED STATES UNDER THIS ACT,  FN33  SHALL BE CONDUCTED BY
IMMIGRANT INSPECTORS, EXCEPT AS HEREINAFTER PROVIDED IN REGARD TO
BOARDS OF SPECIAL INQUIRY.  ...  SAID INSPECTORS SHALL HAVE POWER TO
ADMINISTER OATHS AND TO TAKE AND CONSIDER EVIDENCE TOUCHING THE RIGHT
OF ANY ALIEN TO ENTER, REENTER, PASS THROUGH, OR RESIDE IN THE UNITED
STATES, AND, WHERE SUCH ACTION MAY BE NECESSARY, TO MAKE A WRITTEN
RECORD OF SUCH EVIDENCE; ...  "  39 STAT. 874, 885, AS AMENDED, 8
U.S.C. SEC. 152. 

CERTAINLY NOTHING HERE SPECIFICALLY PROVIDES THAT IMMIGRANT
INSPECTORS SHALL CONDUCT DEPORTATION HEARINGS OR BE DESIGNATED TO DO
SO.  THIS LANGUAGE DOES DIRECT THEM TO CONDUCT BORDER INSPECTIONS OF
ALIENS SEEKING ADMISSION.  THEY MAY ADMINISTER OATHS AND TAKE, RECORD,
AND CONSIDER EVIDENCE.  BUT THESE FUNCTIONS ARE INDISPENSABLE TO
INVESTIGATIONS WHICH ARE CONCEDEDLY WITHIN THEIR COMPETENCE.  AND THESE
FUNCTIONS ARE LIKEWISE NECESSARY TO ENABLE THE PREPARATION OF
COMPLAINTS FOR PROSECUTIVE PURPOSES.  BUT THAT CONGRESS BY GRANT OF
THESE POWERS HAS SPECIALLY CONSTITUTED THEM OR PROVIDED FOR THEIR
DESIGNATION AS HEARING OFFICERS IN DEPORTATION PROCEEDINGS DOES NOT
APPEAR. 

AND ONE OR MORE OF THE MEMBERS OF THE BODY COMPRISING THE AGENCY, AND
IT ALSO LEAVES UNTOUCHED ANY OTHERS WHOSE RESPONSIBILITIES AND DUTIES
AS HEARING OFFICERS ARE ESTABLISHED BY OTHER STATUTORY PROVISION.  BUT
IF HEARINGS ARE TO BE HAD BEFORE EMPLOYEES WHOSE RESPONSIBILITY AND
AUTHORITY DERIVES FROM A LESSER SOURCE, THEY MUST BE EXAMINERS WHOSE
INDEPENDENCE AND TENURE ARE SO GUARDED BY THE ACT AS TO GIVE THE
ASSURANCES OF NEUTRALITY WHICH CONGRESS THOUGHT WOULD GUARANTEE THE
IMPARTIALITY OF THE ADMINISTRATIVE PROCESS. 

WE FIND NO BASIS IN THE PURPOSES, HISTORY OR TEXT OF THIS ACT FOR
JUDICIALLY DECLARING AN EXEMPTION IN FAVOR OF DEPORTATION PROCEEDINGS
FROM THE PROCEDURAL SAFEGUARDS ENACTED FOR GENERAL APPLICATION TO
ADMINISTRATIVE AGENCIES.  WE HOLD THAT DEPORTATION PROCEEDINGS MUST
CONFORM TO THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT IF
RESULTING ORDERS ARE TO HAVE VALIDITY.  SINCE THE PROCEEDING IN THE
CASE BEFORE US DID NOT COMPLY WITH THESE REQUIREMENTS, WE SUSTAIN THE
WRIT OF HABEAS CORPUS AND DIRECT RELEASE OF THE PRISONER* . 

*(FOR ORDER MODIFYING THE JUDGMENT, SEE POST, P. 908.)  REVERSED. 

FN1  PARTICULARLY INVOKED ARE SEC. 5(C), 60 STAT. 237, 240, 5 U.S.C.
SEC. 1004(C), WHICH PROVIDES IN PART:    "THE SAME OFFICERS WHO PRESIDE
AT THE RECEPTION OF EVIDENCE PURSUANT TO SECTION 7 SHALL MAKE THE
RECOMMENDED DECISION OR INITIAL DECISION REQUIRED BY SECTION 8 EXCEPT
WHERE SUCH OFFICERS BECOME UNAVAILABLE TO THE AGENCY.  SAVE TO THE
EXTENT REQUIRED FOR THE DISPOSITION OF EX PARTE MATTERS AS AUTHORIZED
BY LAW, NO SUCH OFFICER SHALL CONSULT ANY PERSON OR PARTY ON ANY FACT
IN ISSUE UNLESS UPON NOTICE AND OPPORTUNITY FOR ALL PARTIES TO
PARTICIPATE; NOR SHALL SUCH OFFICER BE RESPONSIBLE TO OR SUBJECT TO THE
SUPERVISION OR DIRECTION OF ANY OFFICER, EMPLOYEE, OR AGENT ENGAGED IN
THE PERFORMANCE OF INVESTIGATIVE OR PROSECUTING FUNCTIONS FOR ANY
AGENCY.  NO OFFICER, EMPLOYEE, OR AGENT ENGAGED IN THE PERFORMANCE OF
INVESTIGATIVE OR PROSECUTING FUNCTIONS FOR ANY AGENCY IN ANY CASE
SHALL, IN THAT OR A FACTUALLY RELATED CASE, PARTICIPATE OR ADVISE IN
THE DECISION, RECOMMENDED DECISION, OR AGENCY REVIEW PURSUANT TO
AND SEC. 11, 60 STAT. AT 244, 5 U.S.C. SEC. 1010, WHICH PROVIDES IN
PART:  "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 RATINGS 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.  ...  " 

FN2  SEE E.G., BLACHLY AND OATMAN, ADMINISTRATIVE LEGISLATION AND
ADJUDICATION 1(1934); LANDIS, THE ADMINISTRATIVE PROCESS 1(1938);
POUND, ADMINISTRATIVE LAW 27(1942); CARROW, THE BACKGROUND OF
ADMINISTRATIVE LAW 1(1948); THE FEDERAL ADMINISTRATIVE PROCEDURE ACT
AND THE ADMINISTRATIVE AGENCIES 4(N.Y.U. 1947); FINAL REPORT OF
ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE 7(1941),
CONTAINED IN S. DOC. NO. 8, 77TH CONG., 1ST SESS. (1941); CUSHMAN, THE
INDEPENDENT REGULATORY COMMISSIONS, CC. II-V (1941); FRANKFURTER, THE
TASK OF ADMINISTRATIVE LAW, 75 U. OF PA. L. REV. 614(1927); MATERIALS
CITED IN N. 4, INFRA. 

FN3  SEE E.G., DICKINSON, ADMINISTRATIVE JUSTICE AND THE SUPREMACY OF
LAW, PASSIM (1927); FINAL REPORT OF ATTORNEY GENERAL'S COMMITTEE ON
ADMINISTRATIVE PROCEDURE, SUPRA, AT 11-18, 75-92; AND SEE MATERIALS
CITED IN N. 4, INFRA. 

FN4  E.G., ROOT, PUBLIC SERVICE BY THE BAR, 41 A.B.A. REP. 355,
368(1916); HUGHES, SOME ASPECTS OF THE DEVELOPMENT OF AMERICAN LAW, 39
N.Y.B.A. REP. 266, 269(1916); SUTHERLAND, PRIVATE RIGHTS AND GOVERNMENT
CONTROL, 42 A.B.A. REP. 197, 205(1917); ADDRESS OF PRESIDENT GUTHRIE,
46 N.Y.B.A. REP. 169, 186(1923).  AFTER 1933, WHEN THE AMERICAN BAR
ASSOCIATION FORMED A SPECIAL COMMITTEE ON ADMINISTRATIVE LAW, THE BAR'S
CONCERN CAN BE TRACED IN THIS COMMITTEE'S REPORTS.  E.G., 58 A.B.A.
REP. 197, 407(1933); 59 A.B.A. REP. 539(1934); 61 A.B.A. REP.
720(1936); 62 A.B.A. REP. 789(1937). 

FN5  S. 5154, 70TH CONG., 2D SESS. (1929). 

FN6  S. 1835, 73D CONG., 1ST SESS. (1933); S. 3787, H.R. 12297, 74TH
CONG., 2D SESS. (1936); S. 3676, 75TH CONG., 3D SESS. (1938); H.R.
6324, H.R. 4235, H.R. 4236, S. 915, S. 916, 76TH CONG., 1ST SESS.
(1939); S. 674, S. 675, S. 918, H.R. 3464, H.R. 4238, H.R. 4782, 77TH
CONG., 1ST SESS. (1941); H.R. 4314, H.R. 5081, H.R. 5237, S. 2030, 78TH
CONG., 2D SESS. (1944); H.R. 1203, S. 7, 79TH CONG., 1ST SESS. (1945). 

FN7  E.G., BENJAMIN, ADMINISTRATIVE ADJUDICATION IN THE STATE OF NEW
YORK (1942); TENTH BIENNIAL REPORT OF THE JUDICIAL COUNCIL TO THE
GOVERNOR AND LEGISLATURE OF CALIFORNIA (1944).  SEE ALSO FESLER, THE
INDEPENDENCE OF STATE REGULATORY AGENCIES (1942); HANDBOOK OF THE
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, 226 ET SEQ.
(1943); 63 A.B.A. REP. 623(1938). 

FN8  ADMINISTRATIVE MANAGEMENT IN THE GOVERNMENT OF THE UNITED
STATES, REPORT OF THE PRESIDENT'S COMMITTEE ON ADMINISTRATIVE
MANAGEMENT 37(1937). 

FN9  THE QUOTED STATEMENT IS FROM PRESIDENT ROOSEVELT'S MESSAGE TO
CONGRESS OF DECEMBER 18, 1940, VETOING H.R. 6324, THE SO-CALLED WALTER
LOGAN BILL.  H.R. DOC. NO. 986, 76TH CONG., 3D SESS., 3-4(1940).  THE
ORIGIN AND ORDERS LEADING TO THE CREATION OF THE ATTORNEY GENERAL'S
COMMITTEE ARE SET OUT IN APPENDIX A OF THE COMMITTEE'S FINAL REPORT,
SUPRA. 

FN10  S. 915, H.R. 6324, 76TH CONG., 1ST SESS. (1939). 

FN11  86 CONG. REC. 13942-3(1940), REPRINTED IN H.R. DOC. NO. 986,
76TH CONG., 3D SESS. (1940). 

FN12  86 CONG. REC. 13953(1940). 

FN13  86 CONG. REC. AT 13943; H.R. DOC. NO. 986, SUPRA, 4. 

FN14  THESE BILLS APPEAR AT PP. 192 AND 217 OF THE COMMITTEE'S FINAL
REPORT, SUPRA.  THE MAJORITY BILL BECAME S. 675, 77TH CONG., 1ST SESS.
(1941) AND THE MINORITY RECOMMENDATION WAS EMBODIED IN S. 674, 77TH
CONG., 1ST SESS. (1941). 

FN15  THE HEARINGS RAN FROM APRIL 2 TO JULY 2, 1941, AND, WITH AN
APPENDIX, HAVE BEEN COLLECTED IN FOUR PARTS AND OVER 1,600 PAGES. 
HEARINGS BEFORE SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY ON S.
674, S. 675 AND S. 918, 77TH CONG., 1ST SESS. (1941). 

FN16  H.R. 4314, H.R. 5081, H.R. 5237, S. 2030, 78TH CONG., 2D SESS.
(1944). 

FN17  S. 7 AND H.R. 1203, 79TH CONG., 1ST SESS. (1945). 

FN18  SEE H.R. REP. NO. 1980, 79TH CONG., 2D SESS. 14-15(1946); S.
REP. NO. 752, 79TH CONG., 1ST SESS. 4-5(1945), REPRINTED IN S. DOC. NO.
248, 79TH CONG., 2D SESS., AT 233, 248-249, AND 185, 190-191,
RESPECTIVELY. 

FN19  S. REP. NO. 752, 79TH CONG., 1ST SESS. 37-45(1945); 92 CONG.
REC. APP. A-2982-5(1946). 

FN20  92 CONG. REC. 2167(1946)(PASSAGE BY THE SENATE); 92 CONG. REC.
5668(1946)(AMENDED VERSION PASSED BY HOUSE); 92 CONG. REC.
5791(1946)(HOUSE VERSION AGREED TO BY SENATE); 92 CONG. REC.
6706(1946)(APPROVED BY THE PRESIDENT). 

FN21  H.R. REP. NO. 1980, 79TH CONG., 2D SESS. 16(1946); FINAL REPORT
OF THE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE,
20(1941); MCFARLAND, ANALYSIS OF THE FEDERAL ADMINISTRATIVE PROCEDURE
ACT, IN FEDERAL ADMINISTRATIVE PROCEDURE ACT AND THE ADMINISTRATIVE
AGENCIES 16, 22(N.Y.U. 1947).  SEE ALSO HEARINGS BEFORE SUBCOMMITTEE
NO. 4 OF THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 4236, H.R. 6198,
AND H.R. 6324, 76TH CONG., 1ST SESS. 14, 31(1939); S. REP. NO. 442,
76TH CONG., 1ST SESS. 9(1939); H.R. REP. NO. 1149, 76TH CONG., 1ST
SESS. 2-3(1939); S. DOC. NO. 71, 76TH CONG., 1ST SESS. 5(1939). 

FN22  81 CONG. REC. 187, 191(1937). 

FN23  SEE N. 14, SUPRA. 

FN24  SEE 8 C.F.R. 150.1 ET SEQ. 

FN25  THE INITIAL STEP IN A DEPORTATION CASE IS THE INVESTIGATION OF
AN ALIEN BY AN IMMIGRANT INSPECTOR.  8 C.F.R. 150.1.  THIS IS FOLLOWED
BY ISSUANCE OF A WARRANT OF ARREST, 8 C.F.R. 150.2-150.4 AND
INCARCERATION, UNLESS THE ALIEN IS RELEASED UNDER BOND.  8 C.F.R.
150.5.  THE FORMAL HEARING FOLLOWS. 

FN26  EISLER V. CLARK (D.D.C. 1948), 77 F.SUPP.  610. 

FN27  S. 2755 AND H.R. 6652, 80TH CONG., 2D SESS. (1948). 

FN28  S. REP. NO. 1588, H.R. REP. NO. 2140, 80TH CONG., 2D SESS.
(1948). 

FN29  SECTION 19(A) OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, 39
STAT. 874, 889, AS AMENDED, 8 U.S.C. SEC. 155(A), PROVIDES IN PART: 

"  ...  ANY ALIEN WHO SHALL HAVE ENTERED OR WHO SHALL BE FOUND IN THE
UNITED STATES IN VIOLATION OF THIS ACT, OR IN VIOLATION OF ANY OTHER
LAW OF THE UNITED STATES  ...  SHALL, UPON THE WARRANT OF THE ATTORNEY
GENERAL, BE TAKEN INTO CUSTODY AND DEPORTED.  ...  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."  SEE NOTE 33, INFRA. 

FN30  THE JAPANESE IMMIGRANT CASE, 189 U.S. 86, 100, 101; KWOCK JAN
FAT V. WHITE, 253 U.S. 454, 459, 464; BRIDGES V. WIXON, 326 U.S. 135,
160(CONCURRING OPINION). 

FN31  SECTION 301 OF THE BILLS PROPOSED IN THE MAJORITY AND MINORITY
RECOMMENDATIONS OF THE FINAL REPORT OF THE ATTORNEY GENERAL'S COMMITTEE
ON ADMINISTRATIVE PROCEDURE, PP. 195, 232-233. 

FN32  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY ON S. 674, S. 675 AND S. 918, 77TH CONG., 1ST SESS.
1456(1941). 

FN33  THE ORIGINAL ACT, 39 STAT. 886, READS "UNDER THIS ACT,"
ALTHOUGH IN THE CODIFICATION, 8 U.S.C. SEC. 152, IT READS "UNDER THIS
112, 204(A). 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED, DISSENTING. 

THE COURT, IT SEEMS TO ME, HAS DISREGARDED A CONGRESSIONAL EXEMPTION
OF CERTAIN AGENCIES, INCLUDING THE IMMIGRATION AND NATURALIZATION
SERVICE, FROM SOME OF THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE
ACT.  SUCH JUDICIAL INTRUSION INTO THE LEGISLATIVE DOMAIN JUSTIFIES A
PROTEST.  IT MAY BE USEFUL TO CALL ATTENTION TO THE NECESSITY OF
RECOGNIZING SPECIFIC EXCEPTIONS TO GENERAL RULES.  THIS PROTEST IS
RESTED ON THE GROUND THAT IMMIGRANT INSPECTORS PERFORMING DUTIES UNDER
SEC. 16 OF THE IMMIGRATION ACT ARE WITHIN THE EXCEPTION PROVIDED BY
SEC. 7(A) OF THE ADMINISTRATIVE PROCEDURE ACT.  THE COURT'S OPINION
DISCUSSES THIS POINT UNDER SUBDIVISION V. THE SECTIONS ARE THERE SET
OUT AND CAN BE EXAMINED BY THE READER. 

IN THIS CASE NO ONE QUESTIONS THE CONSTITUTIONALITY OF THE HEARING
WONG RECEIVED BEFORE THE IMMIGRANT INSPECTOR, WITH ADMINISTRATIVE
REVIEW BY THE COMMISSIONER AND THE BOARD OF IMMIGRATION APPEALS.  THE
QUESTION ON WHICH I DISAGREE WITH THE COURT IS WHETHER THE
ADMINISTRATIVE PROCEDURE ACT PERMITS AN INSPECTOR OF THE IMMIGRATION
AND NATURALIZATION SERVICE TO SERVE AS A PRESIDING OFFICER AT A
DEPORTATION HEARING. 

OFFICIAL PRESIDING AT THE TAKING OF EVIDENCE SHALL BE AN AGENCY, AN
AGENCY MEMBER OR AN EXAMINER APPOINTED UNDER THAT ACT.  THERE IS AN
EXCEPTION TO THIS REQUIREMENT.  IT READS AS FOLLOWS: 

"BUT NOTHING IN THIS ACT SHALL BE DEEMED TO SUPERSEDE THE CONDUCT OF
SPECIFIED CLASSES OF PROCEEDINGS IN WHOLE OR PART BY OR BEFORE BOARDS
OR OTHER OFFICERS SPECIALLY PROVIDED FOR BY OR DESIGNATED PURSUANT TO
STATUTE." 

IT IS THIS EXCEPTION THAT MADE IT PROPER FOR AN IMMIGRANT INSPECTOR
TO PRESIDE AT THIS DEPORTATION HEARING. 

UNDER SEC. 16 OF THE IMMIGRATION ACT, 39 STAT. 874, 885, THE 

"INSPECTION  ...  OF ALIENS, INCLUDING THOSE SEEKING ADMISSION OR
READMISSION TO OR THE PRIVILEGE OF PASSING THROUGH OR RESIDING IN THE
UNITED STATES, AND THE EXAMINATION OF ALIENS ARRESTED WITHIN THE UNITED
STATES UNDER THIS ACT, SHALL BE CONDUCTED BY IMMIGRANT INSPECTORS, ...
SAID INSPECTORS SHALL HAVE POWER TO ADMINISTER OATHS AND TO TAKE AND
CONSIDER EVIDENCE TOUCHING THE RIGHT OF ANY ALIEN TO ENTER, REENTER,
PASS THROUGH, OR RESIDE IN THE UNITED STATES, AND, WHERE SUCH ACTION
MAY BE NECESSARY, TO MAKE A WRITTEN RECORD OF SUCH EVIDENCE; ...  " 

IT SEEMS TO ME OBVIOUS THAT THE EXCEPTION PROVIDED IN SEC. 7(A)
COVERS IMMIGRANT INSPECTORS DEALING WITH THE ARREST OF AN ALIEN FOR
VIOLATION OF THE IMMIGRATION ACT.  THE EXAMINATION OF ARRESTED ALIENS
AT A DEPORTATION PROCEEDING IS SURELY A SPECIFIED CLASS OF PROCEEDINGS
UNDER SEC. 7(A) OF THE ADMINISTRATIVE PROCEDURE ACT, AND IT IS SURELY
CONDUCTED BY AN OFFICER "SPECIALLY PROVIDED FOR BY  ...  STATUTE." 

THE REASON FOR THE EXCEPTION IN SEC. 7(A) WAS NOT SPELLED OUT IN THE
LEGISLATIVE HISTORY OR IN THE ACT ITSELF.  THE EXCEPTION MAY HAVE BEEN
MADE TO RETAIN SMOOTHNESS OF OPERATION IN THE SEVERAL AGENCIES WHERE
THERE WERE OFFICIALS SPECIALLY PROVIDED FOR BY STATUTE OR DESIGNATED
PURSUANT TO A STATUTE.  WHEN MAKING EXCEPTIONS FROM THE REQUIREMENTS AS
TO SEPARATION OF THE INVESTIGATORY AND ADJUDICATORY FUNCTIONS, IT WAS
NATURAL TO INCLUDE OFFICERS SPECIALLY DESIGNATED BY STATUTE TO SIT IN
JUDGMENT.  AGENCY MEMBERS ARE EXCLUDED FROM THESE REQUIREMENTS OF THE
ADMINISTRATIVE PROCEDURE ACT.  THEY, TOO, HAVE INVESTIGATORY AND
ADJUDICATORY DUTIES.  SINCE THE MEMBERS OF THE AGENCY AND THE
STATUTORILY DESIGNATED OFFICERS WERE SPECIALLY SELECTED FOR THE
FUNCTIONS THEY WERE TO PERFORM, CONGRESS PROBABLY REPOSED CONFIDENCE IN
THEIR EXPERIENCE AND EXPERTNESS.  IT DOUBTLESS DID NOT WISH TO
DISORGANIZE ADMINISTRATION UNTIL TIME SHOWED WHETHER THAT CONFIDENCE
WAS WELL PLACED.  FN1 

SINCE THE COURT DOES NOT ACCEPT MY VIEW OF THE REACH OF SEC. 7(A), IT
WOULD BE USELESS TO UNDERTAKE AN ANALYSIS OF THE OTHER QUESTIONS
PRESENTED BY THE PETITION FOR CERTIORARI. 

FN1  THUS THE CONGRESSIONAL COMMITTEE WARNED THAT SHOULD THE
EXCEPTION "BE A LOOPHOLE FOR AVOIDANCE OF THE EXAMINER SYSTEM IN ANY
REAL SENSE, CORRECTIVE LEGISLATION WOULD BE NECESSARY.  THAT PROVISION
IS NOT INTENDED TO PERMIT AGENCIES TO AVOID THE USE OF EXAMINERS BUT TO
PRESERVE SPECIAL STATUTORY TYPES OF HEARING OFFICERS WHO CONTRIBUTE
SOMETHING MORE THAN EXAMINERS COULD CONTRIBUTE AND AT THE SAME TIME
ASSURE THE PARTIES FAIR AND IMPARTIAL PROCEDURE."  S. DOC. NO. 248,
79TH CONG., 2D SESS., P. 216. 
..END :



UNITED STATES V. RABINOWITZ, 339 U.S. 56 


NO. 293.  ARGUED JANUARY 11, 1950.  - DECIDED FEBRUARY 20, 1950.  - 176
F.2D 732, REVERSED. 


1.  KNOWING THAT RESPONDENT HAD SOLD FOUR FORGED POSTAGE STAMPS TO A
GOVERNMENT AGENT AND PROBABLY POSSESSED MANY MORE IN HIS ONE-ROOM PLACE
OF BUSINESS WHICH WAS OPEN TO THE PUBLIC, OFFICERS OBTAINED A WARRANT
FOR HIS ARREST; BUT THEY DID NOT OBTAIN A SEARCH WARRANT.  THEY
ARRESTED HIM IN HIS PLACE OF BUSINESS, SEARCHED THE DESK, SAFE AND FILE
CABINETS AND SEIZED 573 FORGED STAMPS.  HE WAS INDICTED FOR POSSESSING
AND CONCEALING THE STAMPS SO SEIZED AND FOR SELLING THE FOUR THAT HAD
BEEN PURCHASED.  THE SEIZED STAMPS WERE ADMITTED IN EVIDENCE OVER HIS
OBJECTION, AND HE WAS CONVICTED ON BOTH COUNTS.  HELD:  THE SEARCH AND
SEIZURE WERE INCIDENT TO A LAWFUL ARREST, THEY WERE NOT UNREASONABLE,
AND THEY DID NOT VIOLATE THE FOURTH AMENDMENT.  PP. 57-66. 

(A)  WHAT IS A REASONABLE SEARCH IS NOT TO BE DETERMINED BY ANY FIXED
FORMULA.  THE RECURRING QUESTIONS OF THE REASONABLENESS OF SEARCHES
MUST FIND RESOLUTION IN THE FACTS AND CIRCUMSTANCES OF EACH CASE.  P.
63. 

(B)  HERE THE SEARCH AND SEIZURE WERE REASONABLE BECAUSE:  (1) THEY
WERE INCIDENT TO A VALID ARREST; (2) THE PLACE OF THE SEARCH WAS A
BUSINESS ROOM TO WHICH THE PUBLIC, INCLUDING THE OFFICERS, WAS INVITED;
(3) THE ROOM WAS SMALL AND UNDER THE IMMEDIATE AND COMPLETE CONTROL OF
RESPONDENT; (4) THE SEARCH DID NOT EXTEND BEYOND THE ROOM USED FOR
UNLAWFUL PURPOSES; AND (5) THE POSSESSION OF THE FORGED STAMPS WAS A
CRIME.  PP. 63-64. 

2.  TRUPIANO V. UNITED STATES, 334 U.S. 699, OVERRULED TO THE EXTENT
THAT IT REQUIRES A SEARCH WARRANT SOLELY UPON THE BASIS OF THE
PRACTICABILITY OF PROCURING IT RATHER THAN UPON THE REASONABLENESS OF
THE SEARCH AFTER A LAWFUL ARREST.  PP. 65-66. 

UNITED STATES V. RABINOWITZ. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

RESPONDENT WAS CONVICTED OF VIOLATING 18 U.S.C. (1946 ED.)  SECS. 
265, 268.  THE COURT OF APPEALS REVERSED.  176 F.2D 732.  THIS COURT
GRANTED CERTIORARI.  338 U.S. 884.  REVERSED, P. 66. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

RESPONDENT WAS CONVICTED OF SELLING AND OF POSSESSING AND CONCEALING
FORGED AND ALTERED OBLIGATIONS OF THE UNITED STATES WITH INTENT TO
DEFRAUD.  THE QUESTION PRESENTED HERE IS THE REASONABLENESS OF A SEARCH
WITHOUT A SEARCH WARRANT OF A PLACE OF BUSINESS CONSISTING OF A ONE
ROOM OFFICE, INCIDENT TO A VALID ARREST. 

ON FEBRUARY 1, 1943, A PRINTER WHO POSSESSED PLATES FOR FORGING
"OVERPRINTS" ON CANCELED STAMPS WAS TAKEN INTO CUSTODY.  HE DISCLOSED
THAT RESPONDENT, A DEALER IN STAMPS, WAS ONE OF THE CUSTOMERS TO WHOM
HE HAD DELIVERED LARGE NUMBERS OF STAMPS BEARING FORGED OVERPRINTS. 
FN1  ON SATURDAY, FEBRUARY 6, 1943, WITH THIS INFORMATION CONCERNING
RESPONDENT AND HIS ACTIVITIES IN THE HANDS OF GOVERNMENT OFFICERS, A
POSTAL EMPLOYEE WAS SENT TO RESPONDENT'S PLACE OF BUSINESS TO BUY
STAMPS BEARING OVERPRINTS.  HE BOUGHT FOUR STAMPS.  ON MONDAY, FEBRUARY
8, THE STAMPS WERE SENT TO AN EXPERT TO DETERMINE WHETHER THE
OVERPRINTS WERE GENUINE.  ON FEBRUARY 9 THE REPORT WAS RECEIVED SHOWING
THE OVERPRINTS TO BE FORGERIES, HAVING BEEN PLACED UPON THE STAMPS
AFTER CANCELLATION, AND NOT BEFORE AS WAS THE GOVERNMENT'S PRACTICE. 
ON FEBRUARY 11 A FURTHER STATEMENT WAS OBTAINED FROM THE PRINTER WHO
HAD MADE THE OVERPRINTS.  ON FEBRUARY 16, 1943, A WARRANT FOR THE
ARREST OF RESPONDENT WAS OBTAINED. 

IN 1941 RESPONDENT HAD BEEN CONVICTED AND SENTENCED TO THREE MONTHS'
IMPRISONMENT ON A PLEA OF GUILTY TO A TWO-COUNT INDICTMENT CHARGING THE
ALTERATION OF OBLIGATIONS OF THE UNITED STATES, THAT IS, OF
OVERPRINTING GOVERNMENT POSTAGE STAMPS, AND THE POSSESSION OF A PLATE
FROM WHICH A SIMILITUDE OF A UNITED STATES OBLIGATION HAD BEEN
PRINTED.  THUS, WHEN THE WARRANT FOR ARREST WAS OBTAINED, THE OFFICERS
HAD RELIABLE INFORMATION THAT RESPONDENT WAS AN OLD OFFENDER, THAT HE
HAD SOLD FOUR FORGED AND ALTERED STAMPS TO AN AGENT OF THE GOVERNMENT,
AND THAT HE PROBABLY POSSESSED SEVERAL THOUSAND ALTERED STAMPS BEARING
FORGED OVERPRINTS.  WHILE THE WARRANT OF ARREST WAS NOT PUT IN EVIDENCE
IT CONTAINED, AS A GOVERNMENT WITNESS TESTIFIED ON CROSS-EXAMINATION,
AUTHORITY TO ARREST FOR MORE THAN THE SALE OF THE FOUR STAMPS; IT
COVERED ALL THE GOVERNMENT OFFICERS' INFORMATION.  FN2 

ARMED WITH THIS VALID WARRANT FOR ARREST, THE GOVERNMENT OFFICERS,
ACCOMPANIED BY TWO STAMP EXPERTS, WENT TO RESPONDENT'S PLACE OF
BUSINESS, A ONE-ROOM OFFICE OPEN TO THE PUBLIC.  THE OFFICERS THEREUPON
ARRESTED THE RESPONDENT, AND OVER HIS OBJECTION SEARCHED THE DESK,
SAFE, AND FILE CABINETS IN THE OFFICE FOR ABOUT AN HOUR AND A HALF. 
THEY FOUND AND SEIZED 573 STAMPS, ON WHICH IT WAS LATER DETERMINED THAT
OVERPRINTS HAD BEEN FORGED, ALONG WITH SOME OTHER STAMPS WHICH WERE
SUBSEQUENTLY RETURNED TO RESPONDENT. 

RESPONDENT WAS INDICTED ON TWO COUNTS.  HE WAS CHARGED IN COUNT ONE
WITH SELLING FOUR FORGED AND ALTERED STAMPS, KNOWING THEY WERE FORGED
AND ALTERED AND WITH THE INTENT THAT THEY BE PASSED AS GENUINE.  FN3
THE SECOND COUNT CHARGED THAT HE DID KEEP IN HIS POSSESSION AND
CONCEAL, WITH INTENT TO DEFRAUD, THE 573 FORGED AND ALTERED STAMPS. 
FN4 

RESPONDENT MADE TIMELY MOTIONS FOR SUPPRESSION AND TO STRIKE THE
EVIDENCE PERTAINING TO THE 573 STAMPS, ALL OF WHICH WERE EVENTUALLY
DENIED.  RESPONDENT WAS CONVICTED ON BOTH COUNTS AFTER TRIAL BEFORE A
JURY IN WHICH HE OFFERED NO EVIDENCE.  RELYING ON TRUPIANO V. UNITED
STATES, 334 U.S. 699, THE COURT OF APPEALS, ONE JUDGE DISSENTING,
REVERSED ON THE GROUND THAT SINCE THE OFFICERS HAD HAD TIME IN WHICH TO
PROCURE A SEARCH WARRANT AND HAD FAILED TO DO SO THE SEARCH WAS
ILLEGAL, AND THE EVIDENCE THEREFORE SHOULD HAVE BEEN EXCLUDED.  176
F.2D 732.  WE GRANTED CERTIORARI TO DETERMINE THE VALIDITY OF THE
SEARCH BECAUSE OF THE QUESTION'S IMPORTANCE IN THE ADMINISTRATION OF
THE LAW OF SEARCH AND SEIZURE.  338 U.S. 884. 

WERE THE 573 STAMPS, THE FRUITS OF THIS SEARCH, ADMISSIBLE IN
EVIDENCE?  IF LEGALLY OBTAINED, THESE STAMPS WERE COMPETENT EVIDENCE TO
SHOW INTENT UNDER THE FIRST COUNT OF THE INDICTMENT, AND THEY WERE THE
VERY THINGS THE POSSESSION OF WHICH WAS THE CRIME CHARGED IN THE SECOND
COUNT. 

THE FOURTH AMENDMENT PROVIDES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

IT IS UNREASONABLE SEARCHES THAT ARE PROHIBITED BY THE FOURTH
AMENDMENT.  CARROLL V. UNITED STATES, 267 U.S. 132, 147.  IT WAS
RECOGNIZED BY THE FRAMERS OF THE CONSTITUTION THAT THERE WERE
REASONABLE SEARCHES FOR WHICH NO WARRANT WAS REQUIRED.  THE RIGHT OF
THE "PEOPLE TO BE SECURE IN THEIR PERSONS" WAS CERTAINLY OF AS MUCH
CONCERN TO THE FRAMERS OF THE CONSTITUTION AS THE PROPERTY OF THE
PERSON.  YET NO ONE QUESTIONS THE RIGHT, WITHOUT A SEARCH WARRANT, TO
SEARCH THE PERSON AFTER A VALID ARREST.  THE RIGHT TO SEARCH THE PERSON
INCIDENT TO ARREST ALWAYS HAS BEEN RECOGNIZED IN THIS COUNTRY AND IN
ENGLAND.  WEEKS V. UNITED STATES, 232 U.S. 383, 392.  WHERE ONE HAD
BEEN PLACED IN THE CUSTODY OF THE LAW BY VALID ACTION OF OFFICERS, IT
WAS NOT UNREASONABLE TO SEARCH HIM. 

OF COURSE, A SEARCH WITHOUT WARRANT INCIDENT TO AN ARREST IS
DEPENDENT INITIALLY ON A VALID ARREST.  HERE THE OFFICERS HAD A WARRANT
FOR RESPONDENT'S ARREST WHICH WAS, AS FAR AS CAN BE ASCERTAINED, BROAD
ENOUGH TO COVER THE CRIME OF POSSESSION CHARGED IN THE SECOND COUNT,
AND CONSEQUENTLY RESPONDENT WAS PROPERLY ARRESTED.  EVEN IF THE WARRANT
OF ARREST WERE NOT SUFFICIENT TO AUTHORIZE THE ARREST FOR POSSESSION OF
THE STAMPS, THE ARREST THEREFOR WAS VALID BECAUSE THE OFFICERS HAD
PROBABLE CAUSE TO BELIEVE THAT A FELONY WAS BEING COMMITTED IN THEIR
VERY PRESENCE.  CARROLL V. UNITED STATES, 267 U.S. 132, 156-57. 

THE ARREST WAS THEREFORE VALID IN ANY EVENT, AND RESPONDENT'S PERSON
COULD BE LAWFULLY SEARCHED.  COULD THE OFFICERS SEARCH HIS DESK, SAFE
AND FILE CABINETS, ALL WITHIN PLAIN SIGHT OF THE PARTIES, AND ALL
LOCATED UNDER RESPONDENT'S IMMEDIATE CONTROL IN HIS ONE-ROOM OFFICE
OPEN TO THE PUBLIC? 

DECISIONS OF THIS COURT HAVE OFTEN RECOGNIZED THAT THERE IS A
PERMISSIBLE AREA OF SEARCH BEYOND THE PERSON PROPER.  THUS IN AGNELLO
V. UNITED STATES, 269 U.S. 20, 30, THIS COURT STATED: 

"THE RIGHT WITHOUT A SEARCH WARRANT CONTEMPORANEOUSLY TO SEARCH
PERSONS LAWFULLY ARRESTED WHILE COMMITTING CRIME AND TO SEARCH THE
PLACE WHERE THE ARREST IS MADE IN ORDER TO FIND AND SEIZE THINGS
CONNECTED WITH THE CRIME AS ITS FRUITS OR AS THE MEANS BY WHICH IT WAS
COMMITTED, AS WELL AS WEAPONS AND OTHER THINGS TO EFFECT AN ESCAPE FROM
CUSTODY, IS NOT TO BE DOUBTED." 

THE RIGHT "TO SEARCH THE PLACE WHERE THE ARREST IS MADE IN ORDER TO
FIND AND SEIZE THINGS CONNECTED WITH THE CRIME AS ITS FRUITS OR AS THE
MEANS BY WHICH IT WAS COMMITTED" SEEMS TO HAVE STEMMED NOT ONLY FROM
THE ACKNOWLEDGED AUTHORITY TO SEARCH THE PERSON, BUT ALSO FROM THE
LONGSTANDING PRACTICE OF SEARCHING FOR OTHER PROOFS OF GUILT WITHIN THE
CONTROL OF THE ACCUSED FOUND UPON ARREST.  WEEKS V. UNITED STATES, 232
U.S. 383, 392.  IT BECAME ACCEPTED THAT THE PREMISES WHERE THE ARREST
WAS MADE, WHICH PREMISES WERE UNDER THE CONTROL OF THE PERSON ARRESTED
AND WHERE THE CRIME WAS BEING COMMITTED, WERE SUBJECT TO SEARCH WITHOUT
A SEARCH WARRANT.  SUCH A SEARCH WAS NOT "UNREASONABLE."  AGNELLO V.
UNITED STATES, 269 U.S. 20, 30; CARROLL V. UNITED STATES, 267 U.S. 132,
158; BOYD V. UNITED STATES, 116 U.S. 616, 623-24. 

IN MARRON V. UNITED STATES, 275 U.S. 192, THE OFFICERS HAD A WARRANT
TO SEARCH FOR LIQUOR, BUT THE WARRANT DID NOT DESCRIBE A CERTAIN LEDGER
AND INVOICES PERTAINING TO THE OPERATION OF THE BUSINESS.  THE LATTER
WERE SEIZED DURING THE SEARCH OF THE PLACE OF BUSINESS BUT WERE NOT
RETURNED ON THE SEARCH WARRANT AS THEY WERE NOT DESCRIBED THEREIN.  THE
OFFENSE OF MAINTAINING A NUISANCE UNDER THE NATIONAL PROHIBITION ACT
WAS BEING COMMITTED IN THE ROOM BY THE ARRESTED BARTENDER IN THE
OFFICERS' PRESENCE.  THE SEARCH WARRANT WAS HELD NOT TO COVER THE
ARTICLES SEIZED, BUT THE ARREST FOR THE OFFENSE BEING COMMITTED IN THE
PRESENCE OF THE OFFICERS WAS HELD TO AUTHORIZE THE SEARCH FOR AND
SEIZURE OF THE LEDGER AND INVOICES, THIS COURT SAYING: 

"THE OFFICERS WERE AUTHORIZED TO ARREST FOR CRIME BEING COMMITTED IN
THEIR PRESENCE, AND THEY LAWFULLY ARRESTED BIRDSALL.  THEY HAD A RIGHT
WITHOUT A WARRANT CONTEMPORANEOUSLY TO SEARCH THE PLACE IN ORDER TO
FIND AND SEIZE THE THINGS USED TO CARRY ON THE CRIMINAL ENTERPRISE. 
...  THE CLOSET IN WHICH LIQUOR AND THE LEDGER WERE FOUND WAS USED AS A
PART OF THE SALOON.  AND, IF THE LEDGER WAS NOT AS ESSENTIAL TO THE
MAINTENANCE OF THE ESTABLISHMENT AS WERE BOTTLES, LIQUORS AND GLASSES,
IT WAS NONE THE LESS A PART OF THE OUTFIT OR EQUIPMENT ACTUALLY USED TO
COMMIT THE OFFENSE.  AND, WHILE IT WAS NOT ON BIRDSALL'S PERSON AT THE
TIME OF HIS ARREST, IT WAS IN HIS IMMEDIATE POSSESSION AND CONTROL. 
THE AUTHORITY OF OFFICERS TO SEARCH AND SEIZE THE THINGS BY WHICH THE
NUISANCE WAS BEING MAINTAINED, EXTENDED TO ALL PARTS OF THE PREMISES
USED FOR THE UNLAWFUL PURPOSE."  MARRON V. UNITED STATES, 275 U.S. 192,
198-199. 

WE DO NOT UNDERSTAND THE MARRON CASE TO HAVE BEEN DRAINED OF
CONTEMPORARY VITALITY BY GO-BART CO. V. UNITED STATES, 282 U.S. 344,
AND UNITED STATES V. LEFKOWITZ, 285 U.S. 452.  THOSE CASES CONDEMNED
GENERAL EXPLORATORY SEARCHES, WHICH CANNOT BE UNDERTAKEN BY OFFICERS
WITH OR WITHOUT A WARRANT.  IN THE INSTANT CASE THE SEARCH WAS NOT
GENERAL OR EXPLORATORY FOR WHATEVER MIGHT BE TURNED UP.  SPECIFICITY
WAS THE MARK OF THE SEARCH AND SEIZURE HERE.  THERE WAS PROBABLE CAUSE
TO BELIEVE THAT RESPONDENT WAS CONDUCTING HIS BUSINESS ILLEGALLY.  THE
SEARCH WAS FOR STAMPS OVERPRINTED ILLEGALLY, WHICH WERE THOUGHT UPON
THE MOST RELIABLE INFORMATION TO BE IN THE POSSESSION OF AND CONCEALED
BY RESPONDENT IN THE VERY ROOM WHERE HE WAS ARRESTED, OVER WHICH ROOM
HE HAD IMMEDIATE CONTROL AND IN WHICH HE HAD BEEN SELLING SUCH STAMPS
UNLAWFULLY.  HARRIS V. UNITED STATES, 331 U.S. 145, WHICH HAS NOT BEEN
OVERRULED, IS AMPLE AUTHORITY FOR THE MORE LIMITED SEARCH HERE
CONSIDERED.  IN ALL THE YEARS OF OUR NATION'S EXISTENCE, WITH SPECIAL
ATTENTION TO THE PROHIBITION ERA, IT SEEMS NEVER TO HAVE BEEN
QUESTIONED SERIOUSLY THAT A LIMITED SEARCH SUCH AS HERE CONDUCTED AS
INCIDENT TO A LAWFUL ARREST WAS A REASONABLE SEARCH AND THEREFORE
VALID.  FN5  IT HAS BEEN CONSIDERED IN THE SAME PATTERN AS SEARCH OF
THE PERSON AFTER LAWFUL ARREST. 

WHAT IS A REASONABLE SEARCH IS NOT TO BE DETERMINED BY ANY FIXED
FORMULA.  THE CONSTITUTION DOES NOT DEFINE WHAT ARE "UNREASONABLE"
SEARCHES AND, REGRETTABLY, IN OUR DISCIPLINE WE HAVE NO READY LITMUS
PAPER TEST.  THE RECURRING QUESTIONS OF THE REASONABLENESS OF SEARCHES
MUST FIND RESOLUTION IN THE FACTS AND CIRCUMSTANCES OF EACH CASE.  GO
BART CO. V. UNITED STATES, 282 U.S. 344, 357.  REASONABLENESS IS IN THE
FIRST INSTANCE FOR THE DISTRICT COURT TO DETERMINE.  WE THINK THE
DISTRICT COURT'S CONCLUSION THAT HERE THE SEARCH AND SEIZURE WERE
REASONABLE SHOULD BE SUSTAINED BECAUSE:  (1) THE SEARCH AND SEIZURE
WERE INCIDENT TO A VALID ARREST; (2) THE PLACE OF THE SEARCH WAS A
BUSINESS ROOM TO WHICH THE PUBLIC, INCLUDING THE OFFICERS, WAS INVITED;
(3) THE ROOM WAS SMALL AND UNDER THE IMMEDIATE AND COMPLETE CONTROL OF
RESPONDENT; (4) THE SEARCH DID NOT EXTEND BEYOND THE ROOM USED FOR
UNLAWFUL PURPOSES; (5) THE POSSESSION OF THE FORGED AND ALTERED STAMPS
WAS A CRIME, JUST AS IT IS A CRIME TO POSSESS BURGLARS' TOOLS, LOTTERY
TICKETS OR COUNTERFEIT MONEY.  FN6 

ASSUMING THAT THE OFFICERS HAD TIME TO PROCURE A SEARCH WARRANT, WERE
THEY BOUND TO DO SO?  WE THINK NOT, BECAUSE THE SEARCH WAS OTHERWISE
REASONABLE, AS PREVIOUSLY CONCLUDED.  IN A RECENT OPINION, TRUPIANO V.
UNITED STATES, 334 U.S. 699, THIS COURT FIRST ENUNCIATED THE
REQUIREMENT THAT SEARCH WARRANTS MUST BE PROCURED WHEN "PRACTICABLE" IN
A CASE OF SEARCH INCIDENT TO ARREST.  ON THE OCCASION OF THE PREVIOUS
SUGGESTION OF SUCH A TEST, TAYLOR V. UNITED STATES, 286 U.S. 1, THE
COURT HAD BEEN SCRUPULOUS TO RESTRICT THE OPINION TO THE FAMILIAR
SITUATION THERE PRESENTED.  PROHIBITION AGENTS, HAVING RECEIVED
COMPLAINTS FOR ABOUT A YEAR, WENT AT 2:30 A.M. TO A GARAGE ADJACENT TO
A HOUSE, FLASHED A LIGHT THROUGH A SMALL OPENING, AND THEN BROKE IN AND
SEIZED LIQUOR.  THE COURT EMPHASIZED THAT "NO ONE WAS WITHIN THE PLACE
AND THERE WAS NO REASON TO THINK OTHERWISE."  ID. AT 5.  LEST THE
HOLDING THAT SUCH A SEARCH OF AN UNOCCUPIED BUILDING WAS UNREASONABLE
BE THOUGHT TO HAVE BROADER SIGNIFICANCE THE COURT CAREFULLY STATED IN
CONCLUSION: "THIS RECORD DOES NOT MAKE IT NECESSARY FOR US TO DISCUSS
THE RULE IN RESPECT OF SEARCHES IN CONNECTION WITH AN ARREST.  NO
OFFENDER WAS IN THE GARAGE; THE ACTION OF THE AGENTS HAD NO IMMEDIATE
CONNECTION WITH AN ARREST.  THE PURPOSE WAS TO SECURE EVIDENCE TO
SUPPORT SOME FUTURE ARREST."  ID. AT 6.    A RULE OF THUMB REQUIRING
THAT A SEARCH WARRANT ALWAYS BE PROCURED WHENEVER PRACTICABLE MAY BE
APPEALING FROM THE VANTAGE POINT OF EASY ADMINISTRATION.  BUT WE CANNOT
AGREE THAT THIS REQUIREMENT SHOULD BE CRYSTALLIZED INTO A SINE QUA NON
TO THE REASONABLENESS OF A SEARCH.  IT IS FALLACIOUS TO JUDGE EVENTS
RETROSPECTIVELY AND THUS TO DETERMINE, CONSIDERING THE TIME ELEMENT
ALONE, THAT THERE WAS TIME TO PROCURE A SEARCH WARRANT.  WHETHER THERE
WAS TIME MAY WELL BE DEPENDENT UPON CONSIDERATIONS OTHER THAN THE
TICKING OFF OF MINUTES OR HOURS.  THE JUDGMENT OF THE OFFICERS AS TO
WHEN TO CLOSE THE TRAP ON A CRIMINAL COMMITTING A CRIME IN THEIR
PRESENCE OR WHO THEY HAVE REASONABLE CAUSE TO BELIEVE IS COMMITTING A
FELONY IS NOT DETERMINED SOLELY UPON WHETHER THERE WAS TIME TO PROCURE
A SEARCH WARRANT.  SOME FLEXIBILITY WILL BE ACCORDED LAW OFFICERS
ENGAGED IN DAILY BATTLE WITH CRIMINALS FOR WHOSE RESTRAINT CRIMINAL
LAWS ARE ESSENTIAL. 

IT IS APPROPRIATE TO NOTE THAT THE CONSTITUTION DOES NOT SAY THAT THE
RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS SHOULD NOT BE
VIOLATED WITHOUT A SEARCH WARRANT IF IT IS PRACTICABLE FOR THE OFFICERS
TO PROCURE ONE.  THE MANDATE OF THE FOURTH AMENDMENT IS THAT THE PEOPLE
SHALL BE SECURE AGAINST UNREASONABLE SEARCHES.  IT IS NOT DISPUTED THAT
THERE MAY BE REASONABLE SEARCHES, INCIDENT TO AN ARREST, WITHOUT A
SEARCH WARRANT.  UPON ACCEPTANCE OF THIS ESTABLISHED RULE THAT SOME
AUTHORITY TO SEARCH FOLLOWS FROM LAWFULLY TAKING THE PERSON INTO
CUSTODY, IT BECOMES APPARENT THAT SUCH SEARCHES TURN UPON THE
REASONABLENESS UNDER ALL THE CIRCUMSTANCES AND NOT UPON THE
PRACTICABILITY OF PROCURING A SEARCH WARRANT, FOR THE WARRANT IS NOT
REQUIRED.  TO THE EXTENT THAT TRUPIANO V. UNITED STATES, 334 U.S. 699,
REQUIRES A SEARCH WARRANT SOLELY UPON THE BASIS OF THE PRACTICABILITY
OF PROCURING IT RATHER THAN UPON THE REASONABLENESS OF THE SEARCH AFTER
A LAWFUL ARREST, THAT CASE IS OVERRULED.  THE RELEVANT TEST IS NOT
WHETHER IT IS REASONABLE TO PROCURE A SEARCH WARRANT, BUT WHETHER THE
SEARCH WAS REASONABLE.  THAT CRITERION IN TURN DEPENDS UPON THE FACTS
AND CIRCUMSTANCES - THE TOTAL ATMOSPHERE OF THE CASE.  IT IS A
SUFFICIENT PRECAUTION THAT LAW OFFICERS MUST JUSTIFY THEIR CONDUCT
BEFORE COURTS WHICH HAVE ALWAYS BEEN, AND MUST BE, JEALOUS OF THE
INDIVIDUAL'S RIGHT OF PRIVACY WITHIN THE BROAD SWEEP OF THE FOURTH
AMENDMENT. 

WE DO NOT TREAT ADDITIONAL QUESTIONS RAISED BY RESPONDENT IN HIS
BRIEF TO SUPPORT THE JUDGMENT OF THE COURT OF APPEALS.  WE CONSIDER IT
APPROPRIATE TO DISPOSE OF THESE ISSUES ON THE BASIS OF THE EXCELLENT
DISCUSSION BELOW. 

THE MOTION TO SUPPRESS THE EVIDENCE WAS PROPERLY DENIED BY THE
DISTRICT COURT.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  THE STAMPS INVOLVED WERE GENUINE POSTAGE STAMPS.  AT CERTAIN
TIMES THE GOVERNMENT HAS PRINTED THE NAME OF A PARTICULAR STATE OR
POSSESSION ON STAMPS PRIOR TO POST OFFICE SALE.  CANCELED STAMPS
BEARING THESE OVERPRINTS HAVE AN UNUSUAL VALUE FOR STAMP COLLECTORS. 

FN2  "Q.  NOW, WHEN YOU WENT TO MR. RABINOWITZ'S PLACE OF BUSINESS,
ALL YOU HAD WITH YOU WAS A WARRANT TO ARREST HIM IN CONNECTION WITH THE
ALLEGED SALE OF THOSE FOUR STAMPS; IS THAT CORRECT? 

"A.  AND ALL INFORMATION CONTAINED IN THE ARREST WARRANT; YES. 

"Q.  I DIDN'T HEAR THE LAST PART OF YOUR ANSWER. 

"A. IN OUR QUESTIONS A FEW MINUTES BACK, I STATED THAT THE FOUR
STAMPS WERE SPECIFICALLY MENTIONED IN THE APPLICATION FOR THE WARRANT
FOR ARREST, BUT THAT THERE WAS OTHER INFORMATION IN MY POSSESSION THAT
WAS INCLUDED IN THAT WARRANT FOR ARREST. 

"Q.  WELL, WASN'T THE WARRANT OF ARREST ISSUED SOLELY ON THE CHARGE
THAT MR. RABINOWITZ HAD SOLD FOUR STAMPS CONTAINING FALSE OR ALTERED
OVERPRINTS"  WASN'T THAT WHAT THE WARRANT OF ARREST WAS ISSUED FOR? 

"A.  PRIMARILY, YES, BUT NOT COMPLETELY." 

FN3  18 U.S.C. (1946 ED.)  SEC.  268. 

FN4  18 U.S.C. (1946 ED.)  SEC.  265.  ALL OF THESE STAMPS ARE
DEFINED BY STATUTE AS OBLIGATIONS OF THE UNITED STATES.  18 U.S.C.
(1946 ED.)  SEC.  261. 

FN5  WHEN CONSTRUING STATE SAFEGUARDS SIMILAR TO THE FOURTH AMENDMENT
OF THE FEDERAL CONSTITUTION, STATE COURTS HAVE SHOWN LITTLE HESITANCY
IN HOLDING THAT INCIDENT TO A LAWFUL ARREST UPON PREMISES WITHIN THE
CONTROL OF THE ARRESTED PERSON, A SEARCH OF THE PREMISES AT LEAST TO
THE EXTENT CONDUCTED IN THE INSTANT CASE IS NOT UNREASONABLE.  SEE,
E.G.:  ARGETAKIS V. STATE, 24 ARIZ. 599, 212 P. 372; ITALIANO V. STATE,
141 FLA. 249, 193 SO. 48; STATE V. CONNER, 59 IDAHO 695, 89 P.2D 197;
STATE V. CARENZA, 357 MO. 1172, 212 S.W.2D 743; STATE EX REL. WONG YOU
V. DISTRICT COURT, 106 MONT. 347, 78 P.2D 353; DAVIS V. STATE, 30 OKLA.
CR. 61, 234 P. 787; STATE EX REL. FONG V. SUPERIOR COURT, 29 WASH.2D
601, 188 P.2D 125; STATE V. ADAMS, 103 W. VA. 77, 136 S.E. 703. 

FN6  THERE IS NO DISPUTE THAT THE OBJECTS SEARCHED FOR AND SEIZED
HERE, HAVING BEEN UTILIZED IN PERPETRATING A CRIME FOR WHICH ARREST WAS
MADE, WERE PROPERLY SUBJECT TO SEIZURE.  SUCH OBJECTS ARE TO BE
DISTINGUISHED FROM MERELY EVIDENTIARY MATERIALS WHICH MAY NOT BE TAKEN
INTO CUSTODY.  UNITED STATES V. LEFKOWITZ, SUPRA, AT 464-66; GOULED V.
UNITED STATES, 255 U.S. 298, 309-11.  THIS IS A DISTINCTION OF
IMPORTANCE, FOR "LIMITATIONS UPON THE FRUIT TO BE GATHERED TEND TO
LIMIT THE QUEST ITSELF  ...  "  UNITED STATES V. POLLER, 43 F.2D 911,
914. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

TRUPIANO V. UNITED STATES, 334 U.S. 699, WAS DECIDED ON THE
UNARTICULATED PREMISE THAT THE FOURTH AMENDMENT OF ITSELF BARRED THE
USE OF EVIDENCE OBTAINED BY WHAT THE COURT CONSIDERED AN "UNREASONABLE"
SEARCH.  I DISSENTED IN THAT CASE.  LATER, CONCURRING IN THIS COURT'S
DECISION IN WOLF V. COLORADO, 338 U.S. 25, 39-40, I STATED MY AGREEMENT
WITH THE "PLAIN IMPLICATION" OF THE WOLF OPINION THAT "THE FEDERAL
EXCLUSIONARY RULE IS NOT A COMMAND OF THE FOURTH AMENDMENT BUT IS A
JUDICIALLY CREATED RULE OF EVIDENCE WHICH CONGRESS MIGHT NEGATE."  IN
THE LIGHT OF THE WOLF CASE, THE TRUPIANO RULE IS NOT A CONSTITUTIONAL
COMMAND, BUT RATHER AN EVIDENTIARY POLICY ADOPTED BY THIS COURT IN THE
EXERCISE OF ITS SUPERVISORY POWERS OVER FEDERAL COURTS.  CF. MCNABB V.
UNITED STATES, 318 U.S. 332.  THE PRESENT CASE COMES WITHIN THAT RULE:
THE TRIAL COURT ADMITTED CERTAIN EVIDENCE PROCURED BY A SEARCH AND
SEIZURE WITHOUT A SEARCH WARRANT ALTHOUGH THE OFFICERS HAD AMPLE TIME
AND OPPORTUNITY TO GET ONE.  WHETHER THIS COURT SHOULD ADHERE TO THE
TRUPIANO PRINCIPLE MAKING EVIDENCE SO OBTAINED INADMISSIBLE IN FEDERAL
COURTS NOW PRESENTS NO MORE THAN A QUESTION OF WHAT IS WISE JUDICIAL
POLICY.  ALTHOUGH THE RULE DOES NOT IN ALL RESPECTS CONFORM TO MY OWN
IDEAS, I THINK THAT THE REASONS FOR CHANGING IT ARE OUTWEIGHED BY
REASONS AGAINST ITS CHANGE. 

IN RECENT YEARS, THE SCOPE OF THE RULE HAS BEEN A SUBJECT OF ALMOST
CONSTANT JUDICIAL CONTROVERSY BOTH IN TRIAL AND APPELLATE COURTS.  IN
NO OTHER FIELD HAS THE LAW'S UNCERTAINTY BEEN MORE CLEARLY MANIFESTED. 
TO SOME EXTENT THAT UNCERTAINTY MAY BE UNAVOIDABLE.  THE TRUPIANO CASE
ITSELF ADDED NEW CONFUSIONS "IN A FIELD ALREADY REPLETE WITH
COMPLEXITIES."  TRUPIANO V. UNITED STATES, SUPRA, 716.  BUT OVERRULING
THAT DECISION MERELY AGGRAVATES EXISTING UNCERTAINTY.  FOR AS MR.
JUSTICE FRANKFURTER POINTS OUT, TODAY'S HOLDING CASTS DOUBT ON OTHER
CASES RECENTLY DECIDED.  AND I DO NOT UNDERSTAND HOW TRIAL JUDGES CAN
BE EXPECTED TO FORESEE WHAT FURTHER SHIFTS MAY OCCUR.  IN MY JUDGMENT
IT WOULD BE WISER JUDICIAL POLICY TO ADHERE TO THE TRUPIANO RULE OF
EVIDENCE, AT LEAST LONG ENOUGH TO SEE HOW IT WORKS. 

THAT RULE IS BASED UPON VERY STRICT REQUIREMENTS DESIGNED TO NARROW
THE OCCASIONS UPON WHICH OFFICERS CAN MAKE SEARCHES AND SEIZURES
WITHOUT JUDICIAL WARRANT.  UNQUESTIONABLY ITS APPLICATION WILL NOW AND
THEN PERMIT A GUILTY PERSON TO ESCAPE CONVICTION BECAUSE OF HASTY OR
ILL-ADVISED ACTION ON THE PART OF ENFORCEMENT OFFICERS.  BUT THE SAME
MAY BE SAID OF THE REQUIREMENTS OF THE FOURTH AMENDMENT WHICH THE
EXCLUSIONARY RULE WAS FASHIONED TO IMPLEMENT.  THE FRAMERS OF THE
FOURTH AMENDMENT MUST HAVE CONCLUDED THAT REASONABLY STRICT SEARCH AND
SEIZURE REQUIREMENTS WERE NOT TOO COSTLY A PRICE TO PAY FOR PROTECTION
AGAINST THE DANGERS INCIDENT TO INVASION OF PRIVATE PREMISES AND PAPERS
BY OFFICERS, SOME OF WHOM MIGHT BE OVERZEALOUS AND OPPRESSIVE.  SEE
DISSENT IN FELDMAN V. UNITED STATES, 322 U.S. 487, 500-502.  NOR CAN I
SEE WHERE THE ENFORCEMENT OF CRIMINAL JUSTICE IS LIKELY TO BE SERIOUSLY
HANDICAPPED BY ADHERING TO THE TRUPIANO HOLDING. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

THE CLEAR-CUT ISSUE BEFORE US IS THIS:  IN MAKING A LAWFUL ARREST,
MAY ARRESTING OFFICERS SEARCH WITHOUT A SEARCH WARRANT NOT MERELY THE
PERSON UNDER ARREST OR THINGS UNDER HIS IMMEDIATE PHYSICAL CONTROL, BUT
THE PREMISES WHERE THE ARREST IS MADE, ALTHOUGH THERE WAS AMPLE TIME TO
SECURE SUCH A WARRANT AND NO DANGER THAT THE "PAPERS AND EFFECTS" FOR
WHICH A SEARCH WARRANT COULD BE ISSUED WOULD BE DESPOILED OR
DESTROYED? 

THE OLD SAW THAT HARD CASES MAKE BAD LAW HAS ITS BASIS IN
EXPERIENCE.  BUT PETTY CASES ARE EVEN MORE CALCULATED TO MAKE BAD LAW. 
THE IMPACT OF A SORDID LITTLE CASE IS APT TO OBSCURE THE IMPLICATIONS
OF THE GENERALIZATION TO WHICH THE CASE GIVES RISE.  ONLY THUS CAN I
ACCOUNT FOR A DISREGARD OF THE HISTORY EMBEDDED IN THE FOURTH AMENDMENT
AND THE GREAT PLACE WHICH BELONGS TO THAT AMENDMENT IN THE BODY OF OUR
LIBERTIES AS RECOGNIZED AND APPLIED BY UNANIMOUS DECISIONS OVER A LONG
STRETCH OF THE COURT'S HISTORY. 

IT IS A FAIR SUMMARY OF HISTORY TO SAY THAT THE SAFEGUARDS OF LIBERTY
HAVE FREQUENTLY BEEN FORGED IN CONTROVERSIES INVOLVING NOT VERY NICE
PEOPLE.  AND SO, WHILE WE ARE CONCERNED HERE WITH A SHABBY DEFRAUDER,
WE MUST DEAL WITH HIS CASE IN THE CONTEXT OF WHAT ARE REALLY THE GREAT
THEMES EXPRESSED BY THE FOURTH AMENDMENT.  A DISREGARD OF THE HISTORIC
MATERIALS UNDERLYING THE AMENDMENT DOES NOT ANSWER THEM. 

1.  IT IS TRUE ALSO OF JOURNEYS IN THE LAW THAT THE PLACE YOU REACH
DEPENDS ON THE DIRECTION YOU ARE TAKING.  AND SO, WHERE ONE COMES OUT
ON A CASE DEPENDS ON WHERE ONE GOES IN.  IT MAKES ALL THE DIFFERENCE IN
THE WORLD WHETHER ONE APPROACHES THE FOURTH AMENDMENT AS THE COURT
APPROACHED IT IN BOYD V. UNITED STATES, 116 U.S. 616, IN WEEKS V.
UNITED STATES, 232 U.S. 383, IN SILVERTHORNE LUMBER CO. V. UNITED
STATES, 251 U.S. 385, IN GOULED V. UNITED STATES, 255 U.S. 298, OR ONE
APPROACHES IT AS A PROVISION DEALING WITH A FORMALITY.  IT MAKES ALL
THE DIFFERENCE IN THE WORLD WHETHER ONE RECOGNIZES THE CENTRAL FACT
ABOUT THE FOURTH AMENDMENT, NAMELY, THAT IT WAS A SAFEGUARD AGAINST
RECURRENCE OF ABUSES SO DEEPLY FELT BY THE COLONIES AS TO BE ONE OF THE
POTENT CAUSES OF THE REVOLUTION, OR ONE THINKS OF IT AS MERELY A
REQUIREMENT FOR A PIECE OF PAPER. 

2.  THIS IS THE FOURTH AMENDMENT: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

THESE WORDS ARE NOT JUST A LITERARY COMPOSITION.  THEY ARE NOT TO BE
READ AS THEY MIGHT BE READ BY A MAN WHO KNOWS ENGLISH BUT HAS NO
KNOWLEDGE OF THE HISTORY THAT GAVE RISE TO THE WORDS.  THE CLUE TO THE
MEANING AND SCOPE OF THE FOURTH AMENDMENT IS JOHN ADAMS'
CHARACTERIZATION OF OTIS' ARGUMENT AGAINST SEARCH BY THE POLICE THAT
"AMERICAN INDEPENDENCE WAS THEN AND THERE BORN."  10 ADAMS, WORKS 247. 
ONE CANNOT WRENCH "UNREASONABLE SEARCHES" FROM THE TEXT AND CONTEXT AND
HISTORIC CONTENT OF THE FOURTH AMENDMENT.  IT WAS THE ANSWER OF THE
REVOLUTIONARY STATESMEN TO THE EVILS OF SEARCHES WITHOUT WARRANTS AND
SEARCHES WITH WARRANTS UNRESTRICTED IN SCOPE.  BOTH WERE DEEMED
"UNREASONABLE."  WORDS MUST BE READ WITH THE GLOSS OF THE EXPERIENCE OF
THOSE WHO FRAMED THEM.  BECAUSE THE EXPERIENCE OF THE FRAMERS OF THE
BILL OF RIGHTS WAS SO VIVID, THEY ASSUMED THAT IT WOULD BE CARRIED DOWN
THE STREAM OF HISTORY AND THAT THEIR WORDS WOULD RECEIVE THE
SIGNIFICANCE OF THE EXPERIENCE TO WHICH THEY WERE ADDRESSED - A
SIGNIFICANCE NOT TO BE FOUND IN THE DICTIONARY.  WHEN THE FOURTH
AMENDMENT OUTLAWED "UNREASONABLE SEARCHES" AND THEN WENT ON TO DEFINE
THE VERY RESTRICTED AUTHORITY THAT EVEN A SEARCH WARRANT ISSUED BY A
MAGISTRATE COULD GIVE, THE FRAMERS SAID WITH ALL THE CLARITY OF THE
GLOSS OF HISTORY THAT A SEARCH IS "UNREASONABLE" UNLESS A WARRANT
AUTHORIZES IT, BARRING ONLY EXCEPTIONS JUSTIFIED BY ABSOLUTE
NECESSITY.  EVEN A WARRANT CANNOT AUTHORIZE IT EXCEPT WHEN IT IS ISSUED
"UPON PROBABLE CAUSE  ...  AND PARTICULARLY DESCRIBING THE PLACE TO BE
SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED."  FN1  WITH ALL
RESPECT I SUGGEST THAT IT MAKES A MOCKERY OF THE FOURTH AMENDMENT TO
SANCTION SEARCH WITHOUT A SEARCH WARRANT MERELY BECAUSE OF THE LEGALITY
OF AN ARREST.  I HAVE YET TO HEAR THE ANSWER TO JUDGE LEARNED HAND'S
REASONING BELOW THAT TO MAKE THE VALIDITY OF A SEARCH 

"DEPEND UPON THE PRESENCE OF THE PARTY IN THE PREMISES SEARCHED AT
THE TIME OF THE ARREST  ... WOULD MAKE CRUCIAL A CIRCUMSTANCE THAT HAS
NO RATIONAL RELEVANCE TO THE PURPOSES OF THE PRIVILEGE.  THE FEELINGS
WHICH LIE BEHIND IT HAVE THEIR BASIS IN THE RESENTMENT, INEVITABLE IN A
FREE SOCIETY, AGAINST THE INVASION OF A MAN'S PRIVACY WITHOUT SOME
JUDICIAL SANCTION.  IT IS TRUE THAT WHEN ONE HAS BEEN ARRESTED IN HIS
HOME OR HIS OFFICE, HIS PRIVACY HAS ALREADY BEEN INVADED; BUT THAT
INTEREST, THOUGH LOST, IS ALTOGETHER SEPARATE FROM THE INTEREST IN
PROTECTING HIS PAPERS FROM INDISCRIMINATE RUMMAGE, EVEN THOUGH BOTH ARE
CUSTOMARILY GROUPED TOGETHER AS PARTS OF THE 'RIGHT OF PRIVACY.'  ...
THE HISTORY OF THE TWO PRIVILEGES IS ALTOGETHER DIFFERENT; THE FOURTH
AMENDMENT DISTINGUISHES BETWEEN THEM; AND IN STATUTES THEY HAVE ALWAYS
BEEN TREATED AS DEPENDING UPON SEPARATE CONDITIONS."  176 F.2D 732,
735.    3.  THIS BRINGS ME TO A CONSIDERATION OF THE RIGHT OF SEARCH
AND SEIZURE "INCIDENT TO ARREST."  UNDUE HASTE IN COMING TO THAT ISSUE
TOO READILY LEADS TO GETTING OFF THE TRACK OF THE FOURTH AMENDMENT. 
THE GOVERNMENT ARGUED AS THOUGH THE CONSTITUTION SAID SEARCH OF
PREMISES MAY BE AT LARGE WHENEVER AN ARREST IS MADE IN THEM.  THE
UTTERLY FREE HAND, FOR ALL PRACTICAL PURPOSES, THIS GIVES THE ARRESTING
OFFICERS TO RUMMAGE ALL OVER THE HOUSE IS, I THINK, INEVITABLE UNLESS
THE BASIS OF ANY RIGHT TO SEARCH AS AN INCIDENT TO ARREST IS PUT IN
PROPER FOCUS.  PHOTOGRAPHS CAN BE SO TAKEN AS TO MAKE A MIDGET LOOK
LIKE A GIANT, AND VICE VERSA.  THE SAME KIND OF DISTORTION RESULTS IF A
LEGAL DOCTRINE EMBEDDED IN A LARGER MATRIX OF PRINCIPLE IS TAKEN OUT OF
THE MATRIX AND ELEVATED TO AN INDEPENDENT POSITION.  IN PLAIN ENGLISH,
THE RIGHT TO SEARCH INCIDENT TO ARREST IS MERELY ONE OF THOSE VERY
NARROW EXCEPTIONS TO THE "GUARANTIES AND IMMUNITIES WHICH WE HAD
INHERITED FROM OUR ENGLISH ANCESTORS, AND WHICH HAD FROM TIME
IMMEMORIAL BEEN SUBJECT TO CERTAIN WELL-RECOGNIZED EXCEPTIONS ARISING
FROM THE NECESSITIES OF THE CASE."  ROBERTSON V. BALDWIN, 165 U.S. 275,
281. 

4.  WHAT, THEN, IS THE EXCEPTION TO THE PROHIBITION BY THE FOURTH
AMENDMENT OF SEARCH WITHOUT A WARRANT IN CASE OF A LEGAL ARREST,
WHETHER THE ARREST IS ON A WARRANT OR BASED ON THE HISTORIC RIGHT OF
ARREST WITHOUT A WARRANT IF A CRIME IS COMMITTED IN THE PRESENCE OF THE
ARRESTER?  THE EXCEPTION MAY IN PART BE A SURVIVING INCIDENT OF THE
HISTORIC ROLE OF "HUE AND CRY" IN EARLY ANGLO-SAXON LAW.  SEE JUDGE
CARDOZO IN PEOPLE V. CHIAGLES, 237 N.Y. 193, 196, 142 N.E. 583, 584. 
ITS BASIC ROOTS, HOWEVER, LIE IN NECESSITY.  WHAT IS THE NECESSITY? 
WHY IS SEARCH OF THE ARRESTED PERSON PERMITTED?  FOR TWO REASONS:
FIRST, IN ORDER TO PROTECT THE ARRESTING OFFICER AND TO DEPRIVE THE
PRISONER OF POTENTIAL MEANS OF ESCAPE, CLOSSON V. MORRISON, 47 N.H.
482, AND, SECONDLY, TO AVOID DESTRUCTION OF EVIDENCE BY THE ARRESTED
PERSON.  SEE REIFSNYDER V. LEE, 44 IOWA 101, 103; HOLKER V. HENNESSEY,
141 MO. 527, 540, 42 S.W. 1090, 1093.  FROM THIS IT FOLLOWS THAT
OFFICERS MAY SEARCH AND SEIZE NOT ONLY THE THINGS PHYSICALLY ON THE
PERSON ARRESTED, BUT THOSE WITHIN HIS IMMEDIATE PHYSICAL CONTROL.  WHAT
A FARCE IT MAKES OF THE WHOLE FOURTH AMENDMENT TO SAY THAT BECAUSE FOR
MANY LEGAL PURPOSES EVERYTHING IN A MAN'S HOUSE IS UNDER HIS CONTROL
THEREFORE HIS HOUSE - HIS ROOMS - MAY BE SEARCHED.  OF COURSE IN THIS
FIELD OF LAW, AS IN OTHERS, OPINIONS SOMETIMES USE LANGUAGE NOT WITH
FASTIDIOUS PRECISION.  APART FROM SUCH INSTANCES OF LOOSE USE OF
LANGUAGE, THE DOCTRINE OF SEARCH INCIDENTAL TO ARREST HAS, UNTIL VERY
RECENTLY, BEEN STRICTLY CONFINED TO THE NECESSITIES OF THE SITUATION,
I.E., THE SEARCH OF THE PERSON AND THOSE IMMEDIATE PHYSICAL
SURROUNDINGS WHICH MAY FAIRLY BE DEEMED TO BE AN EXTENSION OF HIS
PERSON. 

5.  ANOTHER EXCEPTION TO THE CONSTITUTIONAL PROHIBITION OF
UNREASONABLE SEARCHES IS LIKEWISE ROOTED IN NECESSITY.  THE SEARCH
WITHOUT A WARRANT OF MOVING OBJECTS - VEHICLES AND VESSELS - WAS
SANCTIONED IN CARROLL V. UNITED STATES, 267 U.S. 132, ON THE GROUND
THAT "IT IS NOT PRACTICABLE TO SECURE A WARRANT BECAUSE THE VEHICLE CAN
BE QUICKLY MOVED OUT OF THE LOCALITY OR JURISDICTION IN WHICH THE
WARRANT MUST BE SOUGHT."  267 U.S. AT 153.  FURTHERMORE, THE LIMITS OF
THE EXCEPTION WERE CAREFULLY DEFINED IN TERMS OF NECESSITY, FOR THE
COURT ADDED: 

"IN CASES WHERE THE SECURING OF A WARRANT IS REASONABLY PRACTICABLE,
IT MUST BE USED, AND WHEN PROPERLY SUPPORTED BY AFFIDAVIT AND ISSUED
AFTER JUDICIAL APPROVAL PROTECTS THE SEIZING OFFICER AGAINST A SUIT FOR
DAMAGES.  IN CASES WHERE SEIZURE IS IMPOSSIBLE EXCEPT WITHOUT WARRANT,
THE SEIZING OFFICER ACTS UNLAWFULLY AND AT HIS PERIL UNLESS HE CAN SHOW
THE COURT PROBABLE CAUSE."  267 U.S. AT 156. 

EVEN AS TO MOVING VEHICLES, THIS COURT DID NOT LAY DOWN AN ABSOLUTE
RULE DISPENSING WITH A SEARCH WARRANT.  IT LIMITED DISPENSATION TO THE
DEMANDS OF NECESSITY, WHERE WANT OF TIME PRECLUDED THE OBTAINING OF A
WARRANT.  THE NECESSITY FOUNDED ON THE TIME FACTOR WHICH GUIDED THE
COURT IN THE CARROLL CASE CANNOT JUSTIFY THE SEARCH HERE MADE OF THE
RESPONDENT'S PREMISES, FOR THERE WAS AMPLE TIME TO OBTAIN A WARRANT
BEFORE THE ARREST AND EVEN ON THE OCCASION OF THE ARREST. 

6.  IT IS IN THIS CONNECTION THAT THE BODY OF CONGRESSIONAL
ENACTMENTS BECOMES SIGNIFICANT, PARTICULARLY LEGISLATION
CONTEMPORANEOUS WITH THE ADOPTION OF THE BILL OF RIGHTS.  IF EXPLICIT
LEGISLATION WAS DEEMED NECESSARY TO INSPECT WITHOUT WARRANT EVEN
VESSELS AND VEHICLES, AND IF CONGRESS HAS BEEN VERY NIGGARDLY IN GIVING
AUTHORITY TO SEARCH EVEN WITH A WARRANT - NIGGARDLY BOTH AS TO THE
OFFICERS WHO MAY OBTAIN SUCH WARRANTS AND AS TO STRICTLY DEFINED
CIRCUMSTANCES UNDER WHICH SEARCH IS ALLOWED - THE ATTITUDE DISCLOSED BY
THIS IMPRESSIVE LEGISLATION BEARS POWERFULLY ON THE HISTORIC PURPOSES
OF THE FOURTH AMENDMENT AND THE FUNCTIONS THAT IT FULFILLS IN OUR
DEMOCRACY.  IT DESERVES TO BE RECALLED THAT CONGRESS, DESPITE REPEATED
REQUESTS BY ATTORNEYS GENERAL, LONG REFUSED TO MAKE SEARCH BY WARRANT
GENERALLY AVAILABLE AS AN AID TO CRIMINAL PROSECUTION.  IT DID NOT DO
SO UNTIL THE FIRST WORLD WAR AND EVEN THEN IT DID NOT DO SO EXCEPT
UNDER CONDITIONS MOST CAREFULLY CIRCUMSCRIBED.  FN2 

7.  WITH ONLY RARE DEVIATIONS, SUCH AS TODAY'S DECISION, THIS COURT
HAS CONSTRUED THE FOURTH AMENDMENT "LIBERALLY TO SAFEGUARD THE RIGHT OF
PRIVACY."  UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 464.  FN3  THE
GUIDING LINE IN DEALING WITH THE FOURTH AMENDMENT WAS SET FORTH IN
GOULED V. UNITED STATES, 255 U.S. 298, 303-04: 

"IT WOULD NOT BE POSSIBLE TO ADD TO THE EMPHASIS WITH WHICH THE
FRAMERS OF OUR CONSTITUTION AND THIS COURT (IN BOYD V. UNITED STATES,
116 U.S. 616, IN WEEKS V. UNITED STATES, 232 U.S. 383, AND IN
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385) HAVE DECLARED
THE IMPORTANCE TO POLITICAL LIBERTY AND TO THE WELFARE OF OUR COUNTRY
OF THE DUE OBSERVANCE OF THE RIGHTS GUARANTEED UNDER THE CONSTITUTION
BY THESE TWO AMENDMENTS.  THE EFFECT OF THE DECISIONS CITED IS:  THAT
SUCH RIGHTS ARE DECLARED TO BE INDISPENSABLE TO THE 'FULL ENJOYMENT OF
PERSONAL SECURITY, PERSONAL LIBERTY AND PRIVATE PROPERTY'; THAT THEY
ARE TO BE REGARDED AS OF THE VERY ESSENCE OF CONSTITUTIONAL LIBERTY;
AND THAT THE GUARANTY OF THEM IS AS IMPORTANT AND AS IMPERATIVE AS ARE
THE GUARANTIES OF THE OTHER FUNDAMENTAL RIGHTS OF THE INDIVIDUAL
CITIZEN,  - THE RIGHT, TO TRIAL BY JURY, TO THE WRIT OF HABEAS CORPUS
AND TO DUE PROCESS OF LAW.  IT HAS BEEN REPEATEDLY DECIDED THAT THESE
AMENDMENTS SHOULD RECEIVE A LIBERAL CONSTRUCTION, SO AS TO PREVENT
STEALTHY ENCROACHMENT UPON OR 'GRADUAL DEPRECIATION' OF THE RIGHTS
SECURED BY THEM, BY IMPERCEPTIBLE PRACTICE OF COURTS OR BY WELL
INTENTIONED BUT MISTAKENLY OVER-ZEALOUS EXECUTIVE OFFICERS." 

8.  THE OPINION OF THE COURT INSISTS, HOWEVER, THAT ITS MAJOR PREMISE
THAT AN ARREST CREATES A RIGHT TO SEARCH THE PLACE OF ARREST - FINDS
SUPPORT IN DECISIONS BEGINNING WITH WEEKS V. UNITED STATES, 232 U.S.
383.  THESE DECISIONS DO NOT JUSTIFY TODAY'S DECISION.  THEY MERELY
PROVE HOW A HINT BECOMES A SUGGESTION, IS LOOSELY TURNED INTO DICTUM
AND FINALLY ELEVATED TO A DECISION.  THIS PROGRESSIVE DISTORTION IS DUE
TO AN UNCRITICAL CONFUSION OF (1) THE RIGHT TO SEARCH THE PERSON
ARRESTED AND ARTICLES IN HIS IMMEDIATE PHYSICAL CONTROL AND (2) THE
RIGHT TO SEIZE VISIBLE INSTRUMENTS OR FRUITS OF CRIME AT THE SCENE OF
THE ARREST WITH (3) AN ALLEGED RIGHT TO SEARCH THE PLACE OF ARREST.  IT
IS NECESSARY IN THIS CONNECTION TO DISTINGUISH CLEARLY BETWEEN
PROHIBITED SEARCHES AND IMPROPER SEIZURES.  IT IS UNCONSTITUTIONAL TO
MAKE AN IMPROPER SEARCH EVEN FOR ARTICLES THAT ARE APPROPRIATELY
SUBJECT TO SEIZURE WHEN FOUND BY LEGAL MEANS.  E.G., AMOS V. UNITED
STATES, 255 U.S. 313; BYARS V. UNITED STATES, 273 U.S. 28; TAYLOR V.
UNITED STATES, 286 U.S. 1.  THUS, THE SEIZURE OF ITEMS PROPERLY SUBJECT
TO SEIZURE BECAUSE IN OPEN VIEW AT THE TIME OF ARREST DOES NOT CARRY
WITH IT THE RIGHT TO SEARCH FOR SUCH ITEMS. 

THE DOCTRINE OF THE RIGHT TO SEARCH THE PLACE OF ARREST ANNOUNCED
TODAY RESTS ON THE PRECARIOUS FOUNDATION OF THIS PASSAGE IN THE WEEKS
CASE: 

"WHAT THEN IS THE PRESENT CASE?  BEFORE ANSWERING THAT INQUIRY
SPECIFICALLY, IT MAY BE WELL BY A PROCESS OF EXCLUSION TO STATE WHAT IT
IS NOT.  IT IS NOT AN ASSERTION OF THE RIGHT ON THE PART OF THE
GOVERNMENT, ALWAYS RECOGNIZED UNDER ENGLISH AND AMERICAN LAW, TO SEARCH
THE PERSON OF THE ACCUSED WHEN LEGALLY ARRESTED TO DISCOVER AND SEIZE
THE FRUITS OR EVIDENCES OF CRIME.  THIS RIGHT HAS BEEN UNIFORMLY
MAINTAINED IN MANY CASES.  1 BISHOP ON CRIMINAL PROCEDURE, SEC. 211;
WHARTON, CRIM. PLEAD.  AND PRACTICE, 8TH ED., SEC. 60; DILLON V.
O'BRIEN AND DAVIS, 16 COX C.C. 245.  ... NOR IS IT THE CASE OF
BURGLAR'S TOOLS OR OTHER PROOFS OF GUILT FOUND UPON HIS ARREST WITHIN
THE CONTROL OF THE ACCUSED."  232 U.S. 383, 392. 

THE STATEMENT DOES NOT EVEN REFER TO A RIGHT TO SEARCH THE PLACE OF
ARREST, AND THE AUTHORITIES CITED MERELY SUPPORT THE ASSERTION OF A
RIGHT TO SEARCH THE PERSON ARRESTED AND TO SEIZE VISIBLE INSTRUMENTS OR
FRUITS OF CRIME.  FN4 

THE AUTHORITY TO SEARCH WHICH FLOWS FROM THE RIGHT TO ARREST WAS NEXT
DISCUSSED BY THIS COURT IN CARROLL V. UNITED STATES, 267 U.S. 132,
158: 

"WHEN A MAN IS LEGALLY ARRESTED FOR AN OFFENSE, WHATEVER IS FOUND
UPON HIS PERSON OR IN HIS CONTROL WHICH IT IS UNLAWFUL FOR HIM TO HAVE
AND WHICH MAY BE USED TO PROVE THE OFFENSE MAY BE SEIZED AND HELD AS
EVIDENCE IN THE PROSECUTION."  WHILE BROADER THAN THE WEEKS STATEMENT,
THIS IS STILL FAR FROM CLAIMING THE RIGHT TO SEARCH A PLACE MERELY
BECAUSE OF AN ARREST THERE.  WHAT WAS SAID IN THE EARLIER CASE ABOUT
ARTICLES IN THE CONTROL OF THE ARRESTED PERSON NOT BEING IN ISSUE IS
NOW STATED POSITIVELY AS A RIGHT TO SEIZE WHATEVER IS FOUND IN THE
CONTROL OF THE PERSON ARRESTED.  THIS CARROLL STATEMENT IS BASED ON
WHAT WAS SAID IN WEEKS, AND ON TWO STATE CASES WHICH DID NOT ENUNCIATE
A RIGHT TO SEARCH THE PLACE OF ARREST.  FN5 

THESE LIMITED STATEMENTS IN THE WEEKS AND CARROLL OPINIONS WERE
UNCRITICALLY EXPANDED IN AGNELLO V. UNITED STATES, 269 U.S. 20, 30: 

"THE RIGHT WITHOUT A SEARCH WARRANT CONTEMPORANEOUSLY TO SEARCH
PERSONS LAWFULLY ARRESTED WHILE COMMITTING CRIME AND TO SEARCH THE
PLACE WHERE THE ARREST IS MADE IN ORDER TO FIND AND SEIZE THINGS
CONNECTED WITH THE CRIME AS ITS FRUITS OR AS THE MEANS BY WHICH IT WAS
COMMITTED, AS WELL AS WEAPONS AND OTHER THINGS TO EFFECT AN ESCAPE FROM
CUSTODY, IS NOT TO BE DOUBTED.  SEE CARROLL V. UNITED STATES, 267 U.S.
132, 158; WEEKS V. UNITED STATES, 232 U.S. 383, 392." 

IF SUCH A RIGHT WAS "NOT TO BE DOUBTED" IT CERTAINLY CANNOT BE
SUPPORTED BY THE CASES CITED.  CARROLL AND WEEKS MAY HAVE ESTABLISHED A
RIGHT TO SEIZE VISIBLE EVIDENCES OF CRIME AND TO SEARCH THE PERSON
ARRESTED AND EVEN OBJECTS HE PHYSICALLY CONTROLS, BUT NEITHER CASE SO
MUCH AS HINTS THAT THERE IS A RIGHT TO SEARCH THE ENTIRE PLACE OF
ARREST FOR "THINGS CONNECTED WITH THE CRIME." 

IN MARRON V. UNITED STATES, 275 U.S. 192, THESE CARELESSLY PHRASED
DICTA WERE FOR THE FIRST TIME REFLECTED IN THE RESULT.  THE STATEMENT
IN THE OPINION THAT OFFICERS "HAD A RIGHT WITHOUT A WARRANT
CONTEMPORANEOUSLY TO SEARCH THE PLACE IN ORDER TO FIND AND SEIZE THE
THINGS USED TO CARRY ON THE CRIMINAL ENTERPRISE," 275 U.S. AT 199, WAS
DRASTICALLY QUALIFIED BY GO-BART CO. V. UNITED STATES, 282 U.S. 344,
AND UNITED STATES V. LEFKOWITZ, 285 U.S. 452.  THE TEACHING OF THOSE
CASES IS THAT THE WARRANT OF ARREST CARRIES WITH IT AUTHORITY TO SEIZE
ALL THAT IS ON THE PERSON, OR IN SUCH IMMEDIATE PHYSICAL RELATION TO
THE ONE ARRESTED AS TO BE IN A FAIR SENSE A PROJECTION OF HIS PERSON. 
THE LEFKOWITZ DECISION EMPHASIZED THAT THE THINGS SEIZED IN MARRON
"BEING IN PLAIN VIEW WERE PICKED UP BY THE OFFICERS AS AN INCIDENT OF
THE ARREST.  NO SEARCH FOR THEM WAS MADE."  285 U.S. AT 465.  THUS
EXPLAINED, MARRON STANDS MERELY FOR THE HISTORICALLY JUSTIFIED RIGHT TO
SEIZE VISIBLE INSTRUMENTS OF CRIME AT THE SCENE OF THE ARREST. 

IN RELIANCE ON THE PRIOR DICTA AND ON THE MARRON DECISION, IT WAS
ASSERTED IN HARRIS V. UNITED STATES, 331 U.S. 145, 150, THAT "SEARCH
AND SEIZURE INCIDENT TO LAWFUL ARREST IS A PRACTICE OF ANCIENT
ORIGIN."  LITERALLY, THIS IS TRUE:  THE RIGHT TO SEARCH THE PERSON
ARRESTED AND TO SEIZE VISIBLE INSTRUMENTS OF CRIME HAS A GOOD LEGAL
TITLE.  BUT JUDICIAL HISTORY CANNOT BE AVOUCHED IF THIS STATEMENT IS
MEANT TO COVER THE RIGHT TO SEARCH THE PLACE OF ARREST.  SUCH A CLAIM
CAN ONLY BE MADE BY SLIDING FROM A SEARCH OF THE PERSON TO A SEARCH FOR
THINGS IN HIS "POSSESSION" OR "IN HIS IMMEDIATE CONTROL," WITHOUT
REGARD TO THE TREACHEROUS AMBIGUITY OF THESE TERMS, AND THEN USING
THESE PHRASES, TAKEN OUT OF THEIR ORIGINAL CONTEXT, SO AS TO INCLUDE
THE ENTIRE PREMISES. 

THE SHORT OF IT IS THAT THE RIGHT TO SEARCH THE PLACE OF ARREST IS AN
INNOVATION BASED ON CONFUSION, WITHOUT HISTORIC FOUNDATION, AND MADE IN
THE TEETH OF A HISTORIC PROTECTION AGAINST IT. 

9.  IF THE EXCEPTION OF SEARCH WITHOUT A WARRANT INCIDENTAL TO A
LEGAL ARREST IS EXTENDED BEYOND THE PERSON AND HIS PHYSICAL EXTENSION,
SEARCH THROUGHOUT THE HOUSE NECESSARILY FOLLOWS.  I AM AWARE THAT MOST
DIFFERENCES IN THE LAW DEPEND ON DIFFERENCES OF DEGREE.  BUT
DIFFERENCES THOUGH OF DEGREE MUST NOT BE CAPRICIOUS; THE DIFFERENCES
MUST PERMIT RATIONAL CLASSIFICATION.  IF UPON ARREST YOU MAY SEARCH
BEYOND THE IMMEDIATE PERSON AND THE VERY RESTRICTED AREA THAT MAY
FAIRLY BE DEEMED PART OF THE PERSON, WHAT RATIONAL LINE CAN BE DRAWN
SHORT OF SEARCHING AS MANY ROOMS AS ARRESTING OFFICERS MAY DEEM
APPROPRIATE FOR FINDING "THE FRUITS OF THE CRIME"?  IS SEARCH TO BE
RESTRICTED TO THE ROOM IN WHICH THE PERSON IS ARRESTED BUT NOT TO
ANOTHER OPEN ROOM INTO WHICH IT LEADS?  OR, TAKE A HOUSE OR AN
APARTMENT CONSISTING LARGELY OF ONE BIG ROOM SERVING AS DINING ROOM,
LIVING ROOM AND BEDROOM.  MAY SEARCH BE MADE IN A SMALL ROOM BUT NOT IN
SUCH A LARGE ROOM?  IF YOU MAY SEARCH THE BEDROOM PART OF A LARGE ROOM,
WHY NOT A BEDROOM SEPARATED FROM THE DINING ROOM BY A PARTITION?  THESE
ARE NOT SILLY HARD CASES.  THEY PUT THE PRINCIPLE TO A TEST.  THE RIGHT
TO SEARCH AN ARRESTED PERSON AND TO TAKE THE STUFF ON TOP OF THE DESK
AT WHICH HE SITS HAS A JUSTIFICATION OF NECESSITY WHICH DOES NOT EAT
AWAY THE GREAT PRINCIPLE OF THE FOURTH AMENDMENT.  BUT TO ASSUME THAT
THIS EXCEPTION OF A SEARCH INCIDENTAL TO ARREST PERMITS A FREE-HANDED
SEARCH WITHOUT WARRANT IS TO SUBVERT THE PURPOSE OF THE FOURTH
AMENDMENT BY MAKING THE EXCEPTION DISPLACE THE PRINCIPLE.  HISTORY AND
THE POLICY WHICH IT REPRESENTS ALIKE ADMONISH AGAINST IT. 

10.  TO TEAR "UNREASONABLE" FROM THE CONTEXT AND HISTORY AND PURPOSE
OF THE FOURTH AMENDMENT IN APPLYING THE NARROW EXCEPTION OF SEARCH AS
AN INCIDENT TO AN ARREST IS TO DISREGARD THE REASON TO WHICH REFERENCE
MUST BE MADE WHEN A QUESTION ARISES UNDER THE FOURTH AMENDMENT.  IT IS
TO MAKE THE ARREST AN INCIDENT TO AN UNWARRANTED SEARCH INSTEAD OF A
WARRANTLESS SEARCH AN INCIDENT TO AN ARREST.  THE TEST BY WHICH
SEARCHES AND SEIZURES MUST BE JUDGED IS WHETHER CONDUCT IS CONSONANT
WITH THE MAIN AIM OF THE FOURTH AMENDMENT.  THE MAIN AIM OF THE FOURTH
AMENDMENT IS AGAINST INVASION OF THE RIGHT OF PRIVACY AS TO ONE'S
EFFECTS AND PAPERS WITHOUT REGARD TO THE RESULT OF SUCH INVASION.  THE
PURPOSE OF THE FOURTH AMENDMENT WAS TO ASSURE THAT THE EXISTENCE OF
PROBABLE CAUSE AS THE LEGAL BASIS FOR MAKING A SEARCH WAS TO BE
DETERMINED BY A JUDICIAL OFFICER BEFORE ARREST AND NOT AFTER, SUBJECT
ONLY TO WHAT IS NECESSARILY TO BE EXCEPTED FROM SUCH REQUIREMENT.  THE
EXCEPTIONS CANNOT BE ENTHRONED INTO THE RULE.  THE JUSTIFICATION FOR
INTRUSION INTO A MAN'S PRIVACY WAS TO BE DETERMINED BY A MAGISTRATE
UNINFLUENCED BY WHAT MAY TURN OUT TO BE A SUCCESSFUL SEARCH FOR PAPERS,
THE DESIRE TO SEARCH FOR WHICH MIGHT BE THE VERY REASON FOR THE FOURTH
AMENDMENT'S PROHIBITION.  THE FRAMERS DID NOT REGARD JUDICIAL
AUTHORIZATION AS A FORMAL REQUIREMENT FOR A PIECE OF PAPER.  THEY
DEEMED A MAN'S BELONGINGS PART OF HIS PERSONALITY AND HIS LIFE.  IN
DEALING WITH THE QUESTION, THIS COURT IN UNITED STATES V. LEFKOWITZ,
285 U.S. 452, 464, APPROVINGLY CITED WHAT WAS SAID BY JUDGE LEARNED
HAND IN UNITED STATES V. KIRSCHENBLATT, 16 F.2D 202, 203: 

"WHATEVER THE CASUISTRY OF BORDER CASES, IT IS BROADLY A TOTALLY
DIFFERENT THING TO SEARCH A MAN'S POCKETS AND USE AGAINST HIM WHAT THEY
CONTAIN, FROM RANSACKING HIS HOUSE FOR EVERYTHING WHICH MAY INCRIMINATE
HIM, ONCE YOU HAVE GAINED LAWFUL ENTRY, EITHER BY MEANS OF A SEARCH
WARRANT OR BY HIS CONSENT.  THE SECOND IS A PRACTICE WHICH ENGLISH
SPEAKING PEOPLES HAVE THOUGHT INTOLERABLE FOR OVER A CENTURY AND A
HALF.  IT WAS AGAINST GENERAL WARRANTS OF SEARCH, WHOSE ORIGIN WAS, OR
WAS THOUGHT TO BE, DERIVED FROM STAR CHAMBER, AND WHICH HAD BEEN A
POWERFUL WEAPON FOR SUPPRESSING POLITICAL AGITATION, THAT THE DECISIONS
WERE DIRECTED, OF WHICH ENTICK V. CARRINGTON, 19 HOW.  ST. TRIALS,
1029, IS MOST OFTEN CITED.  THESE CASES WERE DECIDED JUST AFTER THE
COLONISTS HAD BEEN HOTLY AROUSED BY THE ATTEMPT TO ENFORCE CUSTOMS
DUTIES BY WRITS OF ASSISTANCE, AND WHEN WITHIN 30 YEARS THEY FRAMED THE
FOURTH AMENDMENT IT WAS GENERAL WARRANTS THAT THEY ESPECIALLY HAD IN
MIND.  BOYD V. U.S., 116 U.S. 616  ... 

"AFTER ARRESTING A MAN IN HIS HOUSE, TO RUMMAGE AT WILL AMONG HIS
PAPERS IN SEARCH OF WHATEVER WILL CONVICT HIM, APPEARS TO US TO BE
INDISTINGUISHABLE FROM WHAT MIGHT BE DONE UNDER A GENERAL WARRANT;
INDEED, THE WARRANT WOULD GIVE MORE PROTECTION, FOR PRESUMABLY IT MUST
BE ISSUED BY A MAGISTRATE.  TRUE, BY HYPOTHESIS THE POWER WOULD NOT
EXIST, IF THE SUPPOSED OFFENDER WERE NOT FOUND ON THE PREMISES; BUT IT
IS SMALL CONSOLATION TO KNOW THAT ONE'S PAPERS ARE SAFE ONLY SO LONG AS
ONE IS NOT AT HOME.  SUCH CONSTITUTIONAL LIMITATIONS ARISE FROM
GRIEVANCES, REAL OR FANCIED, WHICH THEIR MAKERS HAVE SUFFERED, AND
SHOULD GO PARI PASSU WITH THE SUPPOSED EVIL.  THEY WITHSTAND THE WINDS
OF LOGIC BY THE DEPTH AND TOUGHNESS OF THEIR ROOTS IN THE PAST.  NOR
SHOULD WE FORGET THAT WHAT SEEMS FAIR ENOUGH AGAINST A SQUALID HUCKSTER
OF BAD LIQUOR MAY TAKE ON A VERY DIFFERENT FACE, IF USED BY A
GOVERNMENT DETERMINED TO SUPPRESS POLITICAL OPPOSITION UNDER THE GUISE
OF SEDITION." 

11.  BY THE BILL OF RIGHTS THE FOUNDERS OF THIS COUNTRY SUBORDINATED
POLICE ACTION TO LEGAL RESTRAINTS, NOT IN ORDER TO CONVENIENCE THE
GUILTY BUT TO PROTECT THE INNOCENT.  NOR DID THEY PROVIDE THAT ONLY THE
INNOCENT MAY APPEAL TO THESE SAFEGUARDS.  THEY KNEW TOO WELL THAT THE
SUCCESSFUL PROSECUTION OF THE GUILTY DOES NOT REQUIRE JEOPARDY TO THE
INNOCENT.  THE KNOCK AT THE DOOR UNDER THE GUISE OF A WARRANT OF ARREST
FOR A VENIAL OR SPURIOUS OFFENSE WAS NOT UNKNOWN TO THEM.  COMPARE THE
STATEMENT IN WEEKS V. UNITED STATES, 232 U.S. 383, 390, THAT SEARCHES
AND SEIZURES HAD BEEN MADE UNDER GENERAL WARRANTS IN ENGLAND "IN
SUPPORT OF CHARGES, REAL OR IMAGINARY."  WE HAVE HAD GRIM REMINDERS IN
OUR DAY OF THEIR EXPERIENCE.  ARREST UNDER A WARRANT FOR A MINOR OR A
TRUMPED-UP CHARGE HAS BEEN FAMILIAR PRACTICE IN THE PAST, IS A
COMMONPLACE IN THE POLICE STATE OF TODAY, AND TOO WELL-KNOWN IN THIS
COUNTRY.  SEE LANZETTA V. NEW JERSEY, 306 U.S. 451.  THE PROGRESS IS
TOO EASY FROM POLICE ACTION UNSCRUTINIZED BY JUDICIAL AUTHORIZATION TO
THE POLICE STATE.  THE FOUNDERS WROTE INTO THE CONSTITUTION THEIR
CONVICTION THAT LAW ENFORCEMENT DOES NOT REQUIRE THE EASY BUT DANGEROUS
WAY OF LETTING THE POLICE DETERMINE WHEN SEARCH IS CALLED FOR WITHOUT
PRIOR AUTHORIZATION BY A MAGISTRATE.  THEY HAVE BEEN VINDICATED IN THAT
CONVICTION.  IT MAY SAFELY BE ASSERTED THAT CRIME IS MOST EFFECTIVELY
BROUGHT TO BOOK WHEN THE PRINCIPLES UNDERLYING THE CONSTITUTIONAL
RESTRAINTS UPON POLICE ACTION ARE MOST SCRUPULOUSLY OBSERVED. 

THE HIGHLY EXPERIENCED COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT
APPOINTED BY PRESIDENT HOOVER SPOKE OF "THE HIGH STANDARDS OF CONDUCT
EXACTED BY ENGLISHMEN OF THE POLICE."  VOL. IV REPORTS OF THE NATIONAL
COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT ("LAWLESSNESS IN LAW
ENFORCEMENT") P. 259.  IT IS SUGGESTED THAT WE CANNOT AFFORD THE LUXURY
OF SUCH THEORETICALLY DESIRABLE SUBORDINATION OF THE POLICE TO LAW
BECAUSE GREATER OBEDIENCE TO LAW IS PART OF ENGLISH LIFE GENERALLY.  I
DO NOT THINK THAT ACCEPTANCE OF LOWER STANDARDS THAN THOSE PREVAILING
IN ENGLAND SHOULD BE WRITTEN BY US INTO LAW.  THAT ONLY SERVES TO
ENCOURAGE LOW STANDARDS, NOT TO ELEVATE THEM.  IT IS UNFAIR TO OUR
PEOPLE TO SUGGEST THAT THEY CANNOT ATTAIN AS HIGH STANDARDS AS DO THE
BRITISH IN GUARDING AGAINST POLICE EXCESSES WITHOUT IMPAIRING EFFECTIVE
MEANS FOR COMBATTING CRIME.  EXPERIENCE PROVES THAT IT IS A COUNSEL OF
DESPAIR TO ASSUME THAT THE POLICE CANNOT BE KEPT WITHIN THE BOUNDS OF
THE PRINCIPLES WHICH THE FOURTH AND FIFTH AMENDMENTS EMBODY EXCEPT AT
THE COST OF IMPOTENCE IN PREVENTING CRIME AND DEALING STERNLY WITH ITS
COMMISSION. 

12.  TO SAY THAT THE SEARCH MUST BE REASONABLE IS TO REQUIRE SOME
CRITERION OF REASON.  IT IS NO GUIDE AT ALL EITHER FOR A JURY OR FOR
DISTRICT JUDGES OR THE POLICE TO SAY THAT AN "UNREASONABLE SEARCH" IS
FORBIDDEN - THAT THE SEARCH MUST BE REASONABLE.  WHAT IS THE TEST OF
REASON WHICH MAKES A SEARCH REASONABLE?  THE TEST IS THE REASON
UNDERLYING AND EXPRESSED BY THE FOURTH AMENDMENT: THE HISTORY AND THE
EXPERIENCE WHICH IT EMBODIES AND THE SAFEGUARDS AFFORDED BY IT AGAINST
THE EVILS TO WHICH IT WAS A RESPONSE.  THERE MUST BE A WARRANT TO
PERMIT SEARCH, BARRING ONLY INHERENT LIMITATIONS UPON THAT REQUIREMENT
WHEN THERE IS A GOOD EXCUSE FOR NOT GETTING A SEARCH WARRANT, I.E., THE
JUSTIFICATIONS THAT DISPENSE WITH SEARCH WARRANTS WHEN SEARCHING THE
PERSON IN HIS EXTENSION, WHICH IS HIS BODY AND THAT WHICH HIS BODY CAN
IMMEDIATELY CONTROL, AND MOVING VEHICLES.  IT IS FOR THIS COURT TO LAY
DOWN CRITERIA THAT THE DISTRICT JUDGES CAN APPLY.  IT IS NO CRITERION
OF REASON TO SAY THAT THE DISTRICT COURT MUST FIND IT REASONABLE. 

13.  EVEN IF THE TEST OF REASONABLENESS IS TO BE TAKEN OUT OF THE
CONTEXT OF THE HISTORY AND PURPOSE OF THE FOURTH AMENDMENT, THE TEST
SHOULD NOT BE LIMITED TO EXAMINATION OF ARRESTING OFFICERS' CONDUCT IN
MAKING THE ARREST.  THEIR CONDUCT PRIOR TO ARREST IS NO LESS RELEVANT. 
IN ANY EVENT, THEREFORE, THE PRESENCE OR ABSENCE OF AN AMPLE
OPPORTUNITY FOR GETTING A SEARCH WARRANT BECOMES VERY IMPORTANT.  IT IS
NOT A RULE OF THUMB.  IT IS A RULE OF THE FOURTH AMENDMENT AND OF THE
REASONS FOR ITS ADOPTION.  IT IS NOT A RULE INVENTED IN TRUPIANO V.
UNITED STATES, 334 U.S. 699.  IT IS NOT A RULE OF THOSE WHO CAME ON
THIS COURT IN RECENT YEARS.  THE DECISION IN TAYLOR V. UNITED STATES,
286 U.S. 1, TURNED ON IT.  IT WAS NOT A SENTIMENTAL COURT THAT STATED
IN TAYLOR: 

"ALTHOUGH OVER A CONSIDERABLE PERIOD NUMEROUS COMPLAINTS CONCERNING
THE USE OF THESE PREMISES HAD BEEN RECEIVED, THE AGENTS HAD MADE NO
EFFORT TO OBTAIN A WARRANT FOR MAKING A SEARCH.  THEY HAD ABUNDANT
OPPORTUNITY SO TO DO AND TO PROCEED IN AN ORDERLY WAY EVEN AFTER THE
ODOR HAD EMPHASIZED THEIR SUSPICIONS; THERE WAS NO PROBABILITY OF
MATERIAL CHANGE IN THE SITUATION DURING THE TIME NECESSARY TO SECURE
SUCH WARRANT.  MOREOVER, A SHORT PERIOD OF WATCHING WOULD HAVE
PREVENTED ANY SUCH POSSIBILITY."  286 U.S. AT 6. 

THAT THE ARREST IN THAT CASE WAS MADE AFTER THE SEARCH WAS BEGUN DOES
NOT AFFECT ITS IMPORTANCE.  OPPORTUNITY TO OBTAIN A SEARCH WARRANT IS
EITHER RELEVANT OR IRRELEVANT IN DETERMINING THE APPLICATION OF THE
FOURTH AMENDMENT.  AS THE COURT CONCEIVES THE TEST OF UNREASONABLENESS,
DIFFERENT FACTORS MAY BE GIVEN VARYING WEIGHT.  BUT OPPORTUNITY TO
OBTAIN A WARRANT CANNOT BE RELEVANT IN ONE SITUATION AND TOTALLY
IRRELEVANT IN ANOTHER.  THAT IS THE SIGNIFICANCE OF THE TAYLOR CASE. 

IN THE CASE BEFORE US THERE IS NOT THE SLIGHTEST SUGGESTION THAT THE
ARRESTING OFFICERS HAD NOT THE TIME TO SECURE A SEARCH WARRANT.  THE
ARREST AND SEARCH WERE MADE ON FEBRUARY 16, 1943.  ON FEBRUARY 1, THERE
WAS STRONG EVIDENCE THAT RESPONDENT HAD IN HIS POSSESSION LARGE NUMBERS
OF STAMPS BEARING FORGED OVERPRINTS, IN VIOLATION OF 18 U.S.C. SEC.
265.  ON FEBRUARY 6, A POSTAL EMPLOYEE PURCHASED FROM RESPONDENT FOUR
STAMPS BEARING OVERPRINTS AND, ON FEBRUARY 9, REPORTS WERE RECEIVED
SHOWING THE OVERPRINTS TO BE FORGERIES.  THUS, THE GOVERNMENT HAD AT
LEAST SEVEN, AND MORE ACCURATELY FIFTEEN, DAYS IN WHICH TO PROCURE A
SEARCH WARRANT.  NOR WAS THIS A CASE IN WHICH THE NEED FOR A SEARCH
BECAME APPARENT AT THE TIME OF ARREST.  THE ARRESTING OFFICERS WERE
ACCOMPANIED BY TWO STAMP EXPERTS, WHOSE SOLE FUNCTION WAS TO EXAMINE
THE FRUITS OF THE SEARCH WHICH THEY KNEW WOULD BE MADE.  THIS IS HARDLY
A NATURAL DESCRIPTION OF A "SEARCH INCIDENTAL TO AN ARREST." 

IT IS MOST RELEVANT THAT THE OFFICERS HAD "NO EXCUSE FOR NOT GETTING
A SEARCH WARRANT," 176 F.2D 732, 735, FOR THAT IS PRECISELY WHAT THE
FOURTH AMENDMENT WAS DIRECTED AGAINST - THAT SOME MAGISTRATE AND NOT
THE POLICE OFFICER SHOULD DETERMINE, IF SUCH DETERMINATION IS NOT
PRECLUDED BY NECESSITY, WHO SHALL BE RUMMAGING AROUND IN MY ROOM,
WHETHER IT BE A SMALL ROOM OR A VERY LARGE ROOM, WHETHER IT BE ONE
ROOM, OR TWO ROOMS, OR THREE ROOMS, OR FOUR ROOMS. 

14.  IT IS NOT AS THOUGH WE ARE ASKED TO EXTEND A MISCHIEVOUS
DOCTRINE THAT HAS BEEN SHOWN TO HAMPER LAW ENFORCERS.  WE ARE ASKED TO
OVERRULE DECISIONS BASED ON A LONG COURSE OF PRIOR UNANIMOUS DECISIONS,
DRAWN FROM HISTORY AND LEGISLATIVE EXPERIENCE.  IN OVERRULING TRUPIANO
WE OVERRULE THE UNDERLYING PRINCIPLE OF A WHOLE SERIES OF RECENT CASES:
UNITED STATES V. DI RE, 332 U.S. 581; JOHNSON V. UNITED STATES, 333
U.S. 10; MCDONALD V. UNITED STATES, 335 U.S. 451, BASED ON THE EARLIER
CASES.  FOR THESE CASES OUGHT NOT TO BE ALLOWED TO REMAIN AS DERELICTS
ON THE STREAM OF THE LAW, IF WE OVERRULE TRUPIANO.  THESE ARE NOT
OUTMODED DECISIONS ERODED BY TIME.  EVEN UNDER NORMAL CIRCUMSTANCES,
THE COURT OUGHT NOT TO OVERRULE SUCH A SERIES OF DECISIONS WHERE NO
MISCHIEF FLOWING FROM THEM HAS BEEN MADE MANIFEST.  RESPECT FOR
CONTINUITY IN LAW, WHERE REASONS FOR CHANGE ARE WANTING, ALONE REQUIRES
ADHERENCE TO TRUPIANO AND THE OTHER DECISIONS.  ESPECIALLY OUGHT THE
COURT NOT REENFORCE NEEDLESSLY THE INSTABILITIES OF OUR DAY BY GIVING
FAIR GROUND FOR THE BELIEF THAT LAW IS THE EXPRESSION OF CHANCE - FOR
INSTANCE, OF UNEXPECTED CHANGES IN THE COURT'S COMPOSITION AND THE
CONTINGENCIES IN THE CHOICE OF SUCCESSORS. 

FN1  FOR A MORE DETAILED SUMMARY OF THE ENGLISH AND AMERICAN HISTORY
UNDERLYING THE FOURTH AMENDMENT, SEE THE DISSENTING OPINIONS IN DAVIS
V. UNITED STATES, 328 U.S. 582, 603-05, AND HARRIS V. UNITED STATES,
331 U.S. 145, 157-62.  THE IMPACT OF THIS HISTORY WAS SUCH THAT EVERY
STATE OF THE UNION NOW AFFORDS CONSTITUTIONAL SAFEGUARDS AGAINST
GOVERNMENTAL SEARCH AND SEIZURE.  ITS CONTEMPORARY VITALITY IS
EMPHASIZED BY NEW YORK'S ADOPTION OF SUCH A PROVISION AS RECENTLY AS
1938.  N.Y. CONST. OF 1938, ART. 1, SEC. 12. 

FN2  SEE TITLE XI OF THE ACT OF JUNE 15, 1917, 40 STAT. 217, 228, NOW
RULE 41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  FOR A TABLE OF
CONGRESSIONAL LEGISLATION, INDICATING ITS SCOPE, SEE THE APPENDIX TO
THE DISSENTING OPINION IN DAVIS V. UNITED STATES, 328 U.S. 582, 616. 
FN3  SEE ALSO AN ANALYSIS OF THE CASES IN THE APPENDIX TO THE
DISSENTING OPINION IN HARRIS V. UNITED STATES, 331 U.S. 145, 175. 

FN4  A FAIR SAMPLE IS SEC. 60 OF WHARTON, CRIM. PLEAD.  AND PRACTICE,
8TH ED.:  "RIGHT TO TAKE MONEY FROM THE PERSON OF THE DEFENDANT," WHICH
DISCUSSES ONLY THE RIGHT TO SEARCH THE PERSON ARRESTED.  AGAIN, IN
DILLON V. O'BRIEN AND DAVIS, 16 COX C.C. 245, THE ISSUE WAS THE RIGHT
OF ARRESTING OFFICERS TO SEIZE APPARENT EVIDENCES OF CRIME, NOT THEIR
RIGHT TO RIFLE FILES IN AN EFFORT TO TURN UP THE EVIDENCE. 

FN5  GETCHELL V. PAGE, 103 ME. 387, 69 A. 624, WAS AN ACTION FOR
TRESPASS FOR THE SEIZURE OF ACCOUTREMENTS OF LIQUOR-MAKING UNDER A
WARRANT WHICH AUTHORIZED THE SEARCH AND SEIZURE OF INTOXICATING
LIQUOR.  THE DECISION THAT THE OFFICER WAS NOT LIABLE FOR THE SEIZURE
UNDER THOSE CIRCUMSTANCES DOES NOT SUPPORT AN INDEPENDENT RIGHT TO
SEARCH THE PLACE OF ARREST.  IN KNEELAND V. CONNALLY, 70 GA. 424, 425,
THE OTHER CASE CITED, THE COURT ACTUALLY HELD THAT THE TRIAL COURT HAD
NO JURISDICTION OF THE CASE.  IT WENT ON TO SAY THAT "JUST AS A WARRANT
TO ARREST A MAN CHARGED WITH MURDER WOULD CARRY WITH IT AUTHORITY TO
SEIZE THE BLOODY KNIFE OR SMOKING PISTOL WHICH KILLED," THE INSTRUMENTS
OF THE CRIME OF GAMING COULD BE SEIZED IN ARRESTING A PROPRIETOR OF A
GAMBLING HOUSE.  BUT ONCE AGAIN NO AUTHORITY TO SEARCH FOR THESE
INSTRUMENTS WAS SUGGESTED. 
..END :



UNITED STATES V. BENEDICT, 338 U.S. 692 


NO. 45.  ARGUED NOVEMBER 8, 1949.  - DECIDED FEBRUARY 13, 1950.  - 112
CT. CL. 550, 81 F.SUPP.  717, REVERSED. 


IN 1944, TRUSTEES PERMANENTLY SET ASIDE A CHARITABLE CONTRIBUTION FROM
GAINS REALIZED UPON THE DISPOSITION OF CAPITAL ASSETS HELD IN THE TRUST
FOR MORE THAN SIX MONTHS.  PURSUANT TO SEC. 117(B) OF THE INTERNAL
REVENUE CODE, THEY TREATED ONLY 50% OF THESE CAPITAL GAINS AS INCOME IN
COMPUTING THE INCOME OF THE TRUST.  HELD:  UNDER SEC. 162(A), ONLY 50%
OF THE CHARITABLE CONTRIBUTION (THE PROPORTIONATE PART ATTRIBUTABLE TO
THE TAXABLE PART OF THE CAPITAL GAINS) COULD BE DEDUCTED IN COMPUTING
THE FEDERAL INCOME TAX OF THE TRUST.  PP. 692-699. 

UNITED STATES V. BENEDICT ET AL., TRUSTEES, ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS AWARDED RESPONDENTS A JUDGMENT FOR A REFUND OF
INCOME TAXES.  112 CT. CL. 550, 81 F.SUPP.  717.  THIS COURT GRANTED
CERTIORARI.  336 U.S. 966.  REVERSED, P. 699. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER TRUSTEES, WHO, IN 1944, PERMANENTLY
SET ASIDE A CHARITABLE CONTRIBUTION FROM GAINS REALIZED UPON THE
DISPOSITION OF CAPITAL ASSETS HELD FOR MORE THAN SIX MONTHS, WERE
ENTITLED, IN COMPUTING THE FEDERAL INCOME TAX OF THE TRUST, TO DEDUCT
THE FULL AMOUNT OF THE CONTRIBUTION,  FN1  ALTHOUGH ONLY HALF OF THOSE
GAINS WERE TAKEN INTO ACCOUNT IN COMPUTING NET INCOME.  FN2  FOR THE
REASONS HEREAFTER STATED, OUR ANSWER IS IN THE NEGATIVE. 

THE RESPONDENTS ARE TRUSTEES OF A TRUST CREATED BY THE WILL OF JOHN
E. ANDRUS.  THE WILL DIRECTS THAT THE NET INCOME OF THE TRUST BE
DIVIDED INTO 100 PARTS, 55 TO BE PAID TO CERTAIN INDIVIDUAL
BENEFICIARIES AND 45 TO THE SURDNA FOUNDATION, INC., A CHARITABLE
CORPORATION.  FN3  PURSUANT TO THOSE TERMS THE TRUSTEES PERMANENTLY SET
ASIDE FOR THE FOUNDATION 45% OF THE TRUST'S NET INCOME FOR THE FISCAL
YEAR ENDED APRIL 30, 1944, THE PERIOD INVOLVED IN THIS CASE. 

IN THEIR FIDUCIARY TAX RETURN, THE TRUSTEES REPORTED ORDINARY NET
INCOME OF $240,567.73, AND DEDUCTED FROM IT, AS A CHARITABLE
CONTRIBUTION, THE $108,255.48(45% OF THAT NET INCOME) WHICH THEY HAD
SET ASIDE FOR THE SURDNA FOUNDATION.  THIS WAS DONE UNDER SEC. 162(A)
OF THE INTERNAL REVENUE CODE.  FN4  THE TRUSTEES ALSO REPORTED GAINS OF
$60,374.01 ON THE DISPOSITION OF CAPITAL ASSETS HELD FOR MORE THAN SIX
MONTHS.  OF THESE GAINS, THEY TOOK INTO ACCOUNT ONLY 50%, AMOUNTING TO
$30,187.01, IN COMPUTING THE TRUST'S TAXABLE INCOME.  THIS WAS DONE
UNDER SEC. 117(B).  FN5  AN UNCONTROVERTED DEDUCTION OF $329.60,
REPRESENTING THE CARRY-OVER OF A 1942 LOSS, REDUCED THIS AMOUNT TO
$29,857.41.  FROM THIS THE TRUSTEES DEDUCTED 45%, REPRESENTING A
PROPORTIONATE SHARE OF THE TRUST'S CONTRIBUTION TO THE SURDNA
FOUNDATION.  THIS DEDUCTION AMOUNTED TO $13,435.83, LEAVING A TAXABLE
NET INCOME OF $16,421.58, ON WHICH A TAX OF $5,480.35 WAS PAID, PLUS
INTEREST. 

IN 1947 THE TRUSTEES FILED A CLAIM FOR A REFUND OF $5,157.41.  THEY
BASED THEIR CLAIM UPON A 1946 DECISION OF THE TAX COURT AS TO THE 1941
TAXES OF A NEARLY IDENTICAL TRUST.  ANDRUS TRUST NO. 1 V. COMMISSIONER,
7 T.C. 573.  ON THAT BASIS, THE TRUSTEES CLAIMED A DEDUCTION FROM THE
AFORESAID $29,857.41, NOT ONLY OF A PROPORTIONATE SHARE OF THE
CONTRIBUTION WHICH THE TRUST HAD SET ASIDE FROM CAPITAL GAINS, BUT OF
THE ENTIRE AMOUNT OF THAT CONTRIBUTION.  THIS INCREASED THAT DEDUCTION
FROM $13,435.83(45% OF $29,857.41) TO $27,168.31(45% OF THE TOTAL
CAPITAL GAINS OF $60,374.01), AND CORRESPONDINGLY REDUCED THE TRUST'S
TAXABLE NET INCOME FROM $16,421.58 TO $2,689.10. 

IN JULY, 1947, THE COURT OF APPEALS FOR THE SECOND CIRCUIT
UNANIMOUSLY REVERSED THE TAX COURT IN THE CASE RELATING TO 1941 TAXES. 
COMMISSIONER V. CENTRAL HANOVER BANK CO., 163 F.2D 208, CERT. DENIED,
NOVEMBER, 1947, 332 U.S. 830.  THE COMMISSIONER, HOWEVER, TOOK NO
ACTION ON THE TRUSTEES' CLAIM FOR A REFUND RELATING TO 1944 TAXES, AND,
IN 1948, THE TRUSTEES FILED THIS PROCEEDING FOR ITS RECOVERY THROUGH
THE COURT OF CLAIMS.  WITH ONE JUDGE DISSENTING, THAT COURT DECIDED IN
THEIR FAVOR.  112 CT. CL. 550, 81 F.SUPP.  717.  TO RESOLVE THE
RESULTING CONFLICT, WE GRANTED CERTIORARI.  336 U.S. 966. 

AN ILLUSTRATION BASED UPON THE FACTS IN THE INSTANT CASE WILL BRING
THE STATUTORY PROBLEM INTO CLEARER FOCUS.  A TRUST REALIZES GAINS OF
$60,000 DURING THE TAX YEAR FROM THE SALE OF CAPITAL ASSETS HELD FOR
MORE THAN SIX MONTHS.  FROM THESE IT MAKES A CHARITABLE CONTRIBUTION OF
50%. SECTION 162(A) OF THE CODE  FN6  PROVIDES THAT A TRUST MAY DEDUCT
ANY PART OF ITS "GROSS INCOME" WHICH IT CONTRIBUTES TO SUCH A CHARITY
AS THE ONE SELECTED.  SECTION 117(B)  FN7  PROVIDES THAT ONLY 50% OF
SUCH GAINS SHALL BE TAKEN INTO ACCOUNT IN COMPUTING NET INCOME. 

THE TRUSTEES CONTEND THAT, FOR TAX PURPOSES, THE ENTIRE $60,000 IS
"GROSS INCOME," THAT FROM THIS AMOUNT THE $30,000 CHARITABLE
CONTRIBUTION MAY BE DEDUCTED UNDER SEC. 162(A), AND THAT THE ENTIRE
REMAINING $30,000 IS TO BE LEFT OUT OF ACCOUNT BY FORCE OF SEC. 117(B),
THEREBY LEAVING NO TAXABLE NET INCOME, ALTHOUGH $30,000 GOES TO
INDIVIDUAL BENEFICIARIES.  THE COMMISSIONER, HOWEVER, CONTENDS THAT
ONLY THE $30,000 OF THE RECOGNIZED CAPITAL GAINS THAT IS TAKEN INTO
ACCOUNT BY FORCE OF SEC. 117(B) CONSTITUTES "GROSS INCOME," AND THAT
NECESSARILY THE OTHER $30,000 THAT IS NOT TO BE TAKEN INTO ACCOUNT FOR
TAX PURPOSES IS NOT "GROSS INCOME."  BEGINNING, THUS, WITH $30,000 OF
GROSS INCOME, THE COMMISSIONER ALLOWS A DEDUCTION FROM IT OF THAT
PROPORTIONATE PART OF THE CHARITABLE CONTRIBUTION THAT IS ATTRIBUTABLE
TO THE HALF OF THE RECOGNIZED CAPITAL GAINS WHICH HAS BEEN TAKEN INTO
ACCOUNT.  THAT DEDUCTION AMOUNTS TO $15,000, LEAVING A TAXABLE NET
INCOME OF $15,000. 

THE NARROW STATUTORY QUESTION THUS PRESENTED IS WHETHER THE ENTIRE
RECOGNIZED CAPITAL GAINS OR ONLY THAT HALF TAKEN INTO ACCOUNT UNDER
SEC. 117(B) SHALL CONSTITUTE GROSS INCOME FOR TAX PURPOSES.  STATED
CONVERSELY, THE QUESTION IS WHETHER THAT HALF OF A TAXPAYER'S
RECOGNIZED CAPITAL GAINS THAT IS NOT TAKEN INTO ACCOUNT FOR TAX
PURPOSES SHALL BE LEFT OUT OF ACCOUNT BY WAY OF ITS INITIAL EXCLUSION
FROM GROSS INCOME, OR BY WAY OF ITS SUBSEQUENT DEDUCTION FROM GROSS
INCOME.  ON THIS PRECISE QUESTION THE CODE IS SILENT.  NO PROVISION OF
THE CODE AND NOTHING IN THE LEGISLATIVE HISTORY OR ADMINISTRATIVE
PRACTICE EXPRESSLY SETTLES THE COURSE TO BE FOLLOWED.  WE, THEREFORE,
SEEK THE PURPOSES OF THE APPLICABLE SECTIONS OF THE CODE AND ADOPT THAT
CONSTRUCTION WHICH BEST GIVES EFFECT TO THOSE PURPOSES. 

WE FIND THAT THE OBVIOUS PURPOSE OF SEC. 162(A) IS TO ENCOURAGE THE
MAKING OF CHARITABLE CONTRIBUTIONS OUT OF THE GROSS INCOME OF A TRUST
AND, TO THAT END, IT COMPLETELY EXEMPTS SUCH CONTRIBUTIONS FROM INCOME
TAX, WITHOUT THE LIMITATIONS IMPOSED UPON CHARITABLE CONTRIBUTIONS MADE
BY INDIVIDUALS OR CORPORATIONS.  FN8 THIS PURPOSE IS SERVED BY EACH OF
THE CONSTRUCTIONS OF THE CODE SUGGESTED BY THE PARTIES.  UNDER EITHER
METHOD OF COMPUTATION THE BENEFICIARIES OF THE CHARITABLE CONTRIBUTION
WILL RECEIVE IT IN FULL AND FREE OF TAX. 

WE THEN FIND THAT THE EFFECT OF SEC. 117(B) IS TO TAX RECOGNIZED
CAPITAL GAINS LIKE ORDINARY INCOME, EXCEPT THAT THE TAX ON CAPITAL
GAINS HELD FOR MORE THAN SIX MONTHS IS TO BE COMPUTED ON 50% OF THE
AMOUNT ON WHICH IT WOULD BE COMPUTED IF THOSE GAINS WERE ORDINARY
INCOME.  THE COMMISSIONER'S SOLUTION ACCOMPLISHES PRECISELY THAT RESULT
AND THUS SERVES THAT PURPOSE.  IN THE ILLUSTRATION, IF THE GAINS WERE
ORDINARY INCOME, THE AMOUNT SUBJECT TO TAX, AFTER THE DEDUCTION OF THE
CHARITABLE CONTRIBUTION, WOULD BE $30,000.  AS IT IS, THE AMOUNT
SUBJECT TO TAX IS $15,000.  THE TRUSTEES' CONSTRUCTION IN THE INSTANT
CASE WOULD RESULT IN TAXING THE CAPITAL GAINS AT SUBSTANTIALLY LESS
THAN 50% OF THE AMOUNT AT WHICH THEY WOULD BE TAXED IF THEY WERE
ORDINARY INCOME.  TO THE EXTENT THAT THE AMOUNT SUBJECT TO TAX GOES
BELOW THAT PERCENTAGE, IT FAILS TO GIVE EFFECT TO THE PURPOSE OF SEC.
117(B).  FN9  IN THE MORE EXTREME CIRCUMSTANCES SUGGESTED BY THE
ILLUSTRATION, THIS CONSTRUCTION WOULD ENTIRELY ELIMINATE THE TAX. 

WE, THEREFORE, APPROVE THAT INTERPRETATION OF SEC. 117(B) AND THE
DEFINITION OF STATUTORY GROSS INCOME ADOPTED BY THE COMMISSIONER.  WE
TREAT THE WORDS IN SEC. 117(B), WHICH STATE THAT ONLY 50% OF CERTAIN
RECOGNIZED CAPITAL GAINS "SHALL BE TAKEN INTO ACCOUNT IN COMPUTING  ...
NET INCOME," AS APPLYING TO THE ENTIRE COMPUTATION OF THE TAX,
BEGINNING WITH THE STATEMENT OF THE GROSS INCOME OF THE TRUST AND
CONCLUDING WITH ITS TAXABLE NET INCOME.  FN10  WE TREAT THAT PERCENTAGE
OF CAPITAL GAINS WHICH EXPRESSLY IS NOT TO BE TAKEN INTO ACCOUNT IN
COMPUTING TAXABLE NET INCOME AS ALSO EXCLUDED FROM STATUTORY GROSS
INCOME.  FN11 

ACCORDINGLY, THE ACCEPTANCE BY THE COMMISSIONER OF THE ORIGINAL
RETURN IS APPROVED AND THE JUDGMENT OF THE COURT OF CLAIMS IS
REVERSED. 

FN1  "SEC.  162.  NET INCOME. 

"THE NET INCOME OF THE ESTATE OR TRUST SHALL BE COMPUTED IN THE SAME
MANNER AND ON THE SAME BASIS AS IN THE CASE OF AN INDIVIDUAL, EXCEPT
THAT - 

"(A)  THERE SHALL BE ALLOWED AS A DEDUCTION (IN LIEU OF THE DEDUCTION
FOR CHARITABLE, ETC., CONTRIBUTIONS AUTHORIZED BY SECTION 23(O)) ANY
PART OF THE GROSS INCOME, WITHOUT LIMITATION, WHICH PURSUANT TO THE
TERMS OF THE WILL OR DEED CREATING THE TRUST, IS DURING THE TAXABLE
YEAR PAID OR PERMANENTLY SET ASIDE FOR THE PURPOSES AND IN THE MANNER
SPECIFIED IN SECTION 23(O), OR IS TO BE USED EXCLUSIVELY FOR RELIGIOUS,
CHARITABLE, SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES, OR FOR THE
PREVENTION OF CRUELTY TO CHILDREN OR ANIMALS, OR FOR THE ESTABLISHMENT,
ACQUISITION, MAINTENANCE OR OPERATION OF A PUBLIC CEMETERY NOT OPERATED
FOR PROFIT; ...."  53 STAT. 66, 26 U.S.C. SEC. 162(A). 

FN2  "SEC.  117.  CAPITAL GAINS AND LOSSES. 

.         .         .         .         . 

"(B)  PERCENTAGE TAKEN INTO ACCOUNT.  - IN THE CASE OF A TAXPAYER,
OTHER THAN A CORPORATION, ONLY THE FOLLOWING PERCENTAGES OF THE GAIN OR
LOSS RECOGNIZED UPON THE SALE OR EXCHANGE OF A CAPITAL ASSET SHALL BE
TAKEN INTO ACCOUNT IN COMPUTING NET CAPITAL GAIN, NET CAPITAL LOSS, AND
NET INCOME: 

"100 PER CENTUM IF THE CAPITAL ASSET HAS BEEN HELD FOR NOT MORE THAN
6 MONTHS; 

"50 PER CENTUM IF THE CAPITAL ASSET HAS BEEN HELD FOR MORE THAN 6
MONTHS."  53 STAT. 50-51, AS AMENDED, 56 STAT. 843, 26 U.S.C. SEC.
117(B). 

FN3  THE WILL CREATING THE TRUST CONTAINED NO PROVISION AS TO THE
KIND OF INCOME FROM WHICH THE CHARITABLE CONTRIBUTIONS WERE TO BE SET
ASIDE, AND IT IS NOT DISPUTED THAT THE TRUSTEES PROPERLY SET ASIDE THE
CONTRIBUTIONS PROPORTIONATELY FROM CAPITAL GAINS AND ALL OTHER INCOME. 
THERE IS NOTHING TO INDICATE THAT THE TRUSTEES, IN SETTING ASIDE THE
CONTRIBUTION, ATTEMPTED TO ALLOCATE THEM TO ANY PARTICULAR PART OR
PERCENTAGE OF THE CAPITAL GAINS.  SEE HELVERING V. BLISS, 293 U.S. 144,
149-150; GREY V. COMMISSIONER, 118 F.2D 153(C.A.7TH CIR., AFFIRMING 41
B.T.A. 234); SCOTT V. UNITED STATES, 111 CT. CL. 610, 618-620, 78
F.SUPP.  811, 815-816; NEWBURY V. UNITED STATES, 102 CT. CL. 192, 57
F.SUPP.  168; MEISSNER V. COMMISSIONER, 8 T.C. 780; ESTATE OF TRAISER
V. COMMISSIONER, 41 B.T.A. 228; MONTGOMERY, FEDERAL TAXES, ESTATES,
TRUSTS AND GIFTS 179(1948-1949); 2 NOSSAMAN, TRUST ADMINISTRATION AND
TAXATION 115-116(1945). 

FN4  SEE NOTE 1, SUPRA. 

FN5 SEE NOTE 2, SUPRA. 

FN6  SEE NOTE 1, SUPRA. 

FN7  SEE NOTE 2, SUPRA. 

FN8  UNITED STATES V. PLEASANTS, 305 U.S. 357, 363; OLD COLONY TRUST
CO. V. COMMISSIONER, 301 U.S. 379, 384; HELVERING V. BLISS, 293 U.S.
144, 147. 

WHEN THE WORDS "WITHOUT LIMITATION," IN SEC. 162(A), ARE READ IN
CONNECTION WITH SEC. 23(O), 53 STAT. 12, 14-15, AS AMENDED, 53 STAT.
880, AND 56 STAT. 826, 26 U.S.C. SEC. 23(O), THEIR EFFECT IS ONLY TO
MAKE INAPPLICABLE THE LIMITATION OF 15%, UNDER SEC. 23(O), AND ANY
OTHER STATUTORY LIMITATION WHICH OTHERWISE MIGHT APPLY TO CHARITABLE
CONTRIBUTIONS MADE OUT OF THE GROSS INCOME OF AN ESTATE OR TRUST.  GREY
V. COMMISSIONER, 41 B.T.A. 234, 243, AFF'D, 118 F.2D 153.  SEE ALSO,
OLD COLONY TRUST CO. V. COMMISSIONER, 301 U.S. 379, 382-384;
COMMISSIONER V. CENTRAL HANOVER BANK CO., 163 F.2D 208, 211(C.A.2D
CIR.); FRANK TRUST OF 1931 V. COMMISSIONER, 145 F.2D 411, 413(C.A.3D
CIR.); SCOTT V. UNITED STATES, 111 CT. CL. 610, 618-620, 78 F.SUPP. 
811, 815-816; NEWBURY V. UNITED STATES, 102 CT. CL. 192, 57 F.SUPP. 
168.  FOR THE COMPARABLE 5% LIMITATION APPLICABLE TO CHARITABLE
CONTRIBUTIONS MADE BY CORPORATIONS, SEE 53 STAT. 15-16, AS AMENDED, 56
STAT. 822, 26 U.S.C. SEC. 23(Q). 

FN9  SEE NOTE 2, SUPRA.  THE ALTERNATIVE COMPUTATION OF THE TAX ON
CAPITAL GAINS PROVIDED BY SEC. 117(C)(2) OF THE CODE IS CONSISTENT WITH
THIS RESULT.  53 STAT. 51, AS AMENDED, 56 STAT. 843-844, 26 U.S.C. SEC.
117(C)(2). 

FN10  IT IS UNNECESSARY TO REVIEW THE INTRICATE ARGUMENTS PRESENTED
AS TO THE TERMINOLOGY OF THE CODE.  THEY DO NOT COMPEL THE ADOPTION OF
EITHER INTERPRETATION OR PRECLUDE THE CONCLUSION HERE REACHED.  THIS IS
NOT A CASE IN WHICH THE TRUST OR THE STATUTE HAS REQUIRED OR EVEN
AUTHORIZED THE TRUSTEES TO EARMARK THEIR CHARITABLE CONTRIBUTIONS AS
COMING FROM ANY PARTICULAR ITEMS OF TRUST INCOME, OR FROM ANY
PARTICULAR KIND OF TRUST INCOME.  THE ISSUE DOES NOT INVOLVE ANY
POSSIBLE ALLOCATION OF A CHARITABLE DEDUCTION TO ORDINARY INCOME RATHER
THAN TO CAPITAL GAINS. 

FOR THE REQUIREMENT THAT, UNDER SEC. 162(A), EACH CONTRIBUTION IN
ORDER TO BE DEDUCTIBLE MUST BE MADE OR PERMANENTLY SET ASIDE PURSUANT
TO THE TERMS OF THE WILL OR DEED CREATING THE TRUST, AND ALSO MUST BE
FROM A PART OF THE GROSS INCOME OF THE TRUST, SEE OLD COLONY TRUST CO.
V. COMMISSIONER, 301 U.S. 379; FRANK TRUST OF 1931 V. COMMISSIONER, 145
F.2D 411(C.A.3D CIR.); WELLMAN V. WELCH, 99 F.2D 75(C.A.1ST CIR.);
ESTATE OF TYLER V. COMMISSIONER, 9 B.T.A. 255, 262-263.    FN11  SEE
COMMISSIONER V. CENTRAL HANOVER BANK CO., 163 F.2D 208, 210; FRANK
TRUST OF 1931 V. COMMISSIONER, SUPRA; WELLMAN V. WELCH, SUPRA; GREEN V.
COMMISSIONER, 7 T.C. 263, 277; MALOY V. COMMISSIONER, 45 B.T.A. 1104,
1107. 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON ARE OF THE OPINION THAT THE
JUDGMENT OF THE COURT OF CLAIMS SHOULD BE AFFIRMED FOR THE REASONS
WHICH IT GAVE. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTHER.    THE CONTRARIETY OF VIEWS EXPRESSED BY
THE TAX COURT, THE COURT OF APPEALS FOR THE SECOND CIRCUIT, THE COURT
OF CLAIMS AND NOW BY THIS COURT IN THE TASK OF HARMONIZING SECS. 22(A),
117(B) AND 162(A) OF THE INTERNAL REVENUE CODE CONCLUSIVELY PROVES THE
OPAQUENESS, IF NOT INHERENT INCONGRUITY, OF THOSE PROVISIONS.  COURTS
MUST DO THE BEST THEY CAN WITH SUCH MATERIALS SINCE THE POWER TO WRITE
OR REWRITE LEGISLATION IS NOT THEIRS.  BUT THE FACT THAT A TAXPAYER MAY
ASTUTELY APPLY HIS INCOME SO AS TO REDUCE THE NET BASE ON WHICH A TAX
IS TO BE LEVIED IS NOT IN ITSELF GROUND FOR REJECTING A CONSTRUCTION OF
THE REVENUE CODE WHICH PERMITS THE REDUCED BASE, EVEN THOUGH THE
PARTICULAR MODE OF DISTRIBUTING HIS INCOME MAY NOT HAVE BEEN
CONTEMPLATED IN THE ENACTMENT OF THE CLASSES OF EXEMPTIONS AND
DEDUCTIONS WITHIN WHICH THE TAXPAYER BRINGS HIMSELF.  I, TOO, RECOIL
FROM A BIZARRE RESULT AND IF LEGISLATION IS AMBIGUOUS ITS CONSTRUCTION
SHOULD AVOID SUCH A RESULT.  BUT THE RATIONALE OF CONSTRUCTION
STRUCTION OUGHT NOT TO BE BASED ON THE IMPACT OF A SINGLE BIZARRE
INSTANCE. 

A DEDUCTION FOR TRUST INCOME APPLIED TO CHARITABLE PURPOSES SHOULD
NOT BE DISALLOWED MERELY BECAUSE ONE TAXPAYER CAN EFFECT THE PAYMENT OF
A LOWER INCOME TAX THAN ANOTHER THROUGH THE MODE BY WHICH THE
CHARITABLE CONTRIBUTION IS MADE.  THUS, WHERE THE TRUST INSTRUMENT
PROVIDES THAT ALL CHARITABLE DONATIONS SHALL BE ALLOCATED FROM ORDINARY
INCOME AND NOT FROM CAPITAL GAINS, THE TAXPAYER MAY DOUBTLESS DEDUCT
SUCH CHARITABLE CONTRIBUTIONS IN FULL AND MAY AT THE SAME TIME REPORT
ANY CAPITAL GAINS UNDER THE SPECIAL CAPITAL GAINS PROVISIONS OF THE
CODE.  THIS WOULD SECURE THE VERY BENEFITS SOUGHT BY THE TAXPAYERS
HERE.  THE RULE ENUNCIATED BY THE COURT MAY THEREFORE ITSELF REST TAX
LIABILITY ON THE ASTUTENESS SHOWN IN DRAWING THE TRUST INSTRUMENT
ALLOCATING INCOME FOR CHARITABLE PURPOSES. 

SINCE I AM NOT ALONE IN ENTERTAINING THESE DOUBTS AND THEY HAVE NOT
BEEN DISPELLED, IT SEEMS APPROPRIATE TO EXPRESS THEM. 
















MANNING V. SEELEY TUBE & BOX CO., 338 U.S. 561 


NO. 70.  ARGUED NOVEMBER 17-18, 1949.  - DECIDED FEBRUARY 6, 1950.  -
172 F.2D 77, REVERSED. 


RESPONDENT CORPORATION FILED A FEDERAL TAX RETURN FOR 1941 AND TIMELY
PAID THE AMOUNT OF THE TAX SHOWN THEREON.  IN 1943, AFTER RESPONDENT
HAD BEEN ADJUDGED A BANKRUPT, THE COMMISSIONER OF INTERNAL REVENUE,
USING THE ACCELERATED PROCEDURE APPLICABLE IN BANKRUPTCY CASES,
ASSESSED A DEFICIENCY IN THE 1941 TAX WITH INTEREST FROM THE DATE THE
TAX WAS PROPERLY DUE TO THE ASSESSMENT DATE.  RESPONDENT SUBSEQUENTLY
FILED ITS RETURN FOR 1943, WHICH DISCLOSED A NET OPERATING LOSS FOR
THAT YEAR.  UNDER THE CARRY-BACK PROVISION OF THE INTERNAL REVENUE
CODE, THIS LOSS WAS SUFFICIENT TO ABATE COMPLETELY RESPONDENT'S TAX
LIABILITY FOR 1941.  HELD:  RESPONDENT WAS NOT ENTITLED TO A REFUND OF
THE INTEREST WHICH HAD BEEN ASSESSED ON THE TAX DEFICIENCY.  PP. 562
571. 

(A)  THE SUBSEQUENT CANCELLATION OF THE ASSESSED DEFICIENCY BY
OPERATION OF THE CARRY-BACK PROVISION DID NOT CANCEL RESPONDENT'S
OBLIGATION TO PAY THE INTEREST ASSESSED ON THE DEFICIENCY.  PP. 565
566. 

(B)  ENACTMENT OF THE CARRY-BACK PROVISION IN 1942 DID NOT CHANGE THE
BASIC STATUTORY POLICY THAT THE UNITED STATES IS TO HAVE THE POSSESSION
AND USE OF THE LAWFUL TAX AT THE DATE IT IS PROPERLY DUE.  PP. 566
567. 

(C)  THE CONCLUSION THAT THE CARRY-BACK PROVISION DOES NOT
RETROACTIVELY ALTER THE DUTY OF THE TAXPAYER TO PAY HIS FULL TAX
PROMPTLY IS SUPPORTED BY SEC. 3771(E) OF THE CODE, WHICH PROHIBITS A
TAXPAYER WHO DOES PAY A TAX WHICH IS SUBSEQUENTLY ABATED BY A CARRY
BACK FROM CLAIMING INTEREST FROM THE GOVERNMENT FOR THE INTERVENING
PERIOD.  PP. 567-568. 

(D)  WHERE A DEFICIENCY AND INTEREST HAVE BEEN VALIDLY ASSESSED UNDER
ANY APPLICABLE STATUTORY PROCEDURE, A SUBSEQUENT CARRY-BACK WITH AN
ABATEMENT OF THE DEFICIENCY DOES NOT ABATE THE INTEREST PREVIOUSLY
ASSESSED ON THAT DEFICIENCY.  PP. 569-570. 

MANNING, COLLECTOR OF INTERNAL REVENUE, V. SEELEY TUBE & BOX CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN AN ACTION AGAINST THE COLLECTOR OF INTERNAL REVENUE TO RECOVER AN
AMOUNT WITHHELD AS INTEREST ON A TAX DEFICIENCY WHICH WAS SUBSEQUENTLY
ABATED, THE DISTRICT COURT GAVE JUDGMENT FOR THE COLLECTOR.  76
F.SUPP.  937.  THE COURT OF APPEALS REVERSED.  172 F.2D 77.  THIS COURT
GRANTED CERTIORARI.  337 U.S. 955.  REVERSED, P. 571. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE FACTS OF THIS CASE HAVE BEEN AGREED UPON BY STIPULATION.  ON
DECEMBER 15, 1941, RESPONDENT TAXPAYER, A NEW JERSEY CORPORATION, FILED
A CORPORATE TAX RETURN FOR ITS FISCAL PERIOD, JANUARY 1, 1941, TO
SEPTEMBER 30, 1941.  ON JANUARY 12, 1942, THE COMMISSIONER OF INTERNAL
REVENUE ASSESSED THE TAX,  FN1  WHICH RESPONDENT TIMELY PAID. 
RESPONDENT WAS ADJUDGED A BANKRUPT AND A RECEIVER WAS APPOINTED ON JULY
7, 1943.  ON AUGUST 2, 1943, THE COMMISSIONER, USING THE ACCELERATED
PROCEDURE APPLICABLE IN BANKRUPTCY CASES,  FN2  ASSESSED DEFICIENCIES
IN THE 1941 TAXES WITH INTEREST FROM THE DATE THE TAX WAS PROPERLY DUE
TO THE ASSESSMENT DATE.  FN3 

ON MARCH 3, 1944, RESPONDENT FILED ITS RETURN FOR THE FISCAL PERIOD
FROM OCTOBER 1, 1942, TO SEPTEMBER 30, 1943, SHOWING A NET OPERATING
LOSS  FN4  FOR THAT YEAR.  THIS LOSS, WHEN CARRIED BACK IN ACCORDANCE
WITH SEC. 122(B)(1) OF THE INTERNAL REVENUE CODE,  FN5  WAS SUFFICIENT
TO ABATE COMPLETELY RESPONDENT'S TAX LIABILITY FOR 1941.  RESPONDENT
THEN FILED CLAIMS FOR A REFUND OF THAT PART OF THE 1941 TAX WHICH HAD
ALREADY BEEN PAID, AND FOR THE ABATEMENT OF THE ASSESSED DEFICIENCY AND
INTEREST.  THE COMMISSIONER ABATED THE DEFICIENCY, BUT REFUSED TO
REFUND ALL THE TAX WHICH HAD BEEN PAID, RETAINING AN AMOUNT EQUAL TO
THE INTEREST WHICH HAD BEEN ASSESSED ON THE DEFICIENCY. 

RESPONDENT THEN SUED THE COLLECTOR FOR THE INTEREST.  THE DISTRICT
COURT SUSTAINED THE COLLECTER, HOLDING THAT THE PAYMENT OF THE INTEREST
REMAINED AN OBLIGATION OF THE TAXPAYER, EVEN THOUGH THE ASSESSED
DEFICIENCY HAD ITSELF BEEN ABATED.  76 F.SUPP.  937(1948).  THE COURT
OF APPEALS REVERSED, HOLDING THAT THE CARRY-BACK, IN WIPING OUT THE
DEBT OF THE TAX DEFICIENCY, MUST ALSO HAVE WIPED OUT THE INTEREST WHICH
HAD BEEN ASSESSED ON THAT DEFICIENCY.  172 F.2D 77(1948).  BECAUSE OF
THE FREQUENCY OF THE USE OF THE CARRY-BACK PROVISION OF THE INTERNAL
REVENUE CODE, WE GRANTED CERTIORARI.  337 U.S. 955(1949). 

THE GENERAL STATUTORY SCHEME WHICH PRESENTS THE PROBLEM IS AS
FOLLOWS:  AS OF A CERTAIN DATE THE TAXPAYER HAS A DUTY TO FILE A RETURN
FOR THE PREVIOUS FISCAL YEAR AND PAY THE AMOUNT OF THE TAX ACTUALLY DUE
FOR THAT YEAR.  FN6  IF THIS RETURN IS ERRONEOUSLY CALCULATED AND THE
PAYMENT IS LESS THAN THE TAX PROPERLY DUE, THE COMMISSIONER, USING THE
PROCEDURE APPROPRIATE TO THE PARTICULAR SITUATION, MAY ASSESS A
DEFICIENCY, THE DIFFERENCE BETWEEN THE TAX IMPOSED BY LAW AND THE TAX
SHOWN UPON THE RETURN.  FN7  INTEREST UPON THIS DEFICIENCY AT THE RATE
OF SIX PER CENT FROM THE DATE THE TAX WAS LAWFULLY DUE TO THE DATE OF
THE ASSESSMENT IS ASSESSED AT THE SAME TIME AS THE DEFICIENCY.  FN8  IF
A NET OPERATING LOSS IS SUBSEQUENTLY SUSTAINED, THAT LOSS MAY BE
CARRIED BACK AND ADDED TO THE DEDUCTIONS FOR THE TWO PREVIOUS TAXABLE
YEARS, WITH APPROPRIATE ADJUSTMENTS IN THE TAX LIABILITY FOR THOSE
YEARS.  THE PROBLEM WITH WHICH WE ARE CONCERNED IN THIS CASE IS WHETHER
THE INTEREST ON A VALIDLY ASSESSED DEFICIENCY IS ABATED WHEN THE
DEFICIENCY ITSELF IS ABATED BY THE CARRY-BACK OF A NET OPERATING LOSS. 

WE HOLD THAT THE INTEREST WAS PROPERLY WITHHELD BY THE COLLECTOR. 
THE SUBSEQUENT CANCELLATION OF THE DUTY TO PAY THIS ASSESSED DEFICIENCY
DOES NOT CANCEL IN LIKE MANNER THE DUTY TO PAY THE INTEREST ON THAT
DEFICIENCY.  FROM THE DATE THE ORIGINAL RETURN WAS TO BE FILED UNTIL
THE DATE THE DEFICIENCY WAS ACTUALLY ASSESSED, THE TAXPAYER HAD A
POSITIVE OBLIGATION TO THE UNITED STATES:  A DUTY TO PAY ITS TAX.  SEE
RODGERS V. UNITED STATES, 332 U.S. 371, 374(1947); UNITED STATES V.
CHILDS, 266 U.S. 304, 309-310(1924); BILLINGS V. UNITED STATES, 232
U.S. 261, 285-287(1914).  FOR THAT PERIOD THE TAXPAYER, BY ITS FAILURE
TO PAY THE TAXES OWED, HAD THE USE OF FUNDS WHICH RIGHTFULLY SHOULD
HAVE BEEN IN THE POSSESSION OF THE UNITED STATES.  THE FACT THAT THE
STATUTE PERMITS THE TAXPAYER SUBSEQUENTLY TO AVOID THE PAYMENT OF THAT
DEBT IN NO WAY INDICATES THAT THE TAXPAYER IS TO DERIVE THE BENEFITS OF
THE FUNDS FOR THE INTERVENING PERIOD.  IN THE ABSENCE OF A CLEAR
LEGISLATIVE EXPRESSION TO THE CONTRARY, THE QUESTION OF WHO PROPERLY
SHOULD POSSESS THE RIGHT OF USE OF THE MONEY OWED THE GOVERNMENT FOR
THE PERIOD IT IS OWED MUST BE ANSWERED IN FAVOR OF THE GOVERNMENT. 

IT IS APPARENT FROM AN INSPECTION OF THE CODE THAT CONGRESS INTENDED
THE UNITED STATES TO HAVE THE USE OF THE MONEY LAWFULLY DUE WHEN IT
BECAME DUE.  SEVERAL SECTIONS OF THE CODE PRESCRIBE PENALTIES AND
ADDITIONS TO THE TAX FOR NEGLIGENCE AND FRAUD.  FN9  A TAXPAYER WHO
FILES A TIMELY RETURN BUT DOES NOT PAY THE TAX ON TIME MUST PAY
INTEREST ON THE TAX UNTIL PAYMENT.  FN10  EVEN WHEN THE COMMISSIONER,
AT THE REQUEST OF THE TAXPAYER, AUTHORIZES AN EXTENSION OF THE TIME OF
PAYMENT, INTEREST MUST BE PAID BY THE TAXPAYER FOR THE PERIOD OF THE
EXTENSION.  FN11  AND WHEN THE COMMISSIONER ASSESSES A DEFICIENCY HE
ALSO MAY ASSESS INTEREST ON THAT DEFICIENCY FROM THE DATE THE TAX WAS
DUE TO THE ASSESSMENT DATE.  FN12 

THE ENACTMENT OF THE CARRY-BACK PROVISION IN 1942 DID NOT CHANGE THIS
POLICY OF THE STATUTE REQUIRING PROMPT PAYMENT.  THIS SECTION WAS
INTENDED TO AFFORD TAXPAYERS AN OPPORTUNITY TO PRESENT FOR TAX PURPOSES
A REALISTIC, BALANCED PICTURE OF THEIR PROFITS AND LOSSES.  IT PERMITS
A TAXPAYER TO ADD A NET OPERATING LOSS FOR ONE YEAR TO THE DEDUCTIONS
FOR THE TWO PREVIOUS TAXABLE YEARS.  THE REPORT OF THE SENATE COMMITTEE
ON FINANCE STATES THAT THE PURPOSE OF THE SECTION WAS TO AFFORD RELIEF
TO CASES WHERE MAINTENANCE AND UPKEEP EXPENSES WERE DEFERRED TO
PEACETIME YEARS BECAUSE OF WARTIME RESTRICTIONS.  S. REP. NO. 1631,
77TH CONG., 2D SESS. 51-52(1942).  BUT THERE IS NO INDICATION THAT
CONGRESS INTENDED TO ENCOURAGE TAXPAYERS TO CEASE PROMPT PAYMENT OF
TAXES.  THE SAME REPORT, EXPLAINING THE OPERATION OF THE SECTION WHICH
BECAME THE PRESENT CARRY-BACK PROVISION, STATES, "A TAXPAYER ENTITLED
TO A CARRY-BACK OF A NET OPERATING LOSS OR AN UNUSED EXCESS PROFITS
CREDIT  ...  WILL NOT BE ABLE TO DETERMINE THE DEDUCTION ON ACCOUNT OF
SUCH CARRY-BACK UNTIL THE CLOSE OF THE FUTURE TAXABLE YEAR IN WHICH HE
SUSTAINS THE NET OPERATING LOSS OR HAS THE UNUSED EXCESS PROFITS
CREDIT.  HE MUST THEREFORE FILE HIS RETURN AND PAY HIS TAX WITHOUT
REGARD TO SUCH DEDUCTION, AND MUST FILE A CLAIM FOR REFUND AT THE CLOSE
OF THE SUCCEEDING TAXABLE YEAR WHEN HE IS ABLE TO DETERMINE THE AMOUNT
OF SUCH CARRY-BACK."  S. REP. NO. 1631 AT 123-124.  WE CAN IMAGINE NO
CLEARER INDICATION OF A CONGRESSIONAL UNDERSTANDING AND INTENT THAT THE
CARRY-BACK WAS NOT TO BE INTERPRETED AS DEFERRING OR DELAYING THE
PROMPT PAYMENT OF TAXES PROPERLY DUE. 

ALTHOUGH IT IS TRUE THAT FOR MANY PURPOSES THE CARRY-BACK IS
EQUIVALENT TO A DE NOVO DETERMINATION OF THE TAX, OUR CONCLUSION THAT
THIS SECTION DOES NOT RETROACTIVELY ALTER THE DUTY OF A TAXPAYER TO PAY
HIS FULL TAX PROMPTLY IS AMPLY SUPPORTED BY SEC. 3771(E) OF THE CODE. 
FN13 THAT SECTION, AN INTEGRAL PART OF THE CARRY-BACK PROVISION,
PROHIBITS A TAXPAYER WHO DOES PAY A TAX WHICH IS SUBSEQUENTLY ABATED BY
A CARRY-BACK FROM CLAIMING INTEREST FROM THE GOVERNMENT FOR THE
INTERVENING PERIOD.  IT IS CLEAR, THEREFORE, THAT CONGRESS IN 1942 DID
NOT INTEND TO CHANGE THE BASIC STATUTORY POLICY:  THE UNITED STATES IS
TO HAVE THE POSSESSION AND USE OF THE LAWFUL TAX AT THE DATE IT IS
PROPERLY DUE. 

TO SUSTAIN RESPONDENT'S CONTENTION WOULD BE TO PLACE A PREMIUM ON
FAILURE TO CONFORM DILIGENTLY WITH THE LAW.  FOR THEN A TAXPAYER WHO
DID NOT PAY HIS TAXES ON TIME WOULD RECEIVE THE FULL USE OF THE TAX
FUNDS FOR THE INTERVENING PERIOD, WHILE THE TAXPAYER WHO DID OBEY THE
STATUTORY MANDATE AND PAY HIS LAWFUL TAXES PROMPTLY WOULD BE PROHIBITED
BY SEC. 3771(E) FROM HAVING THE USE OF THE MONEY FOR THAT PERIOD.  WE
CANNOT APPROVE SUCH A RESULT. 

ANY OTHER INTERPRETATION WOULD BE INCONSISTENT WITH THE PRESENT
STRUCTURE OF THE CODE, AS AMENDED BY SEC. 4(A) OF THE TAX ADJUSTMENT
ACT OF 1945, 59 STAT. 519, NOW SECS. 3779 AND 3780 OF THECODE.  PRIOR
TO 1945, THE COMMISSIONER HAD POWER TO AUTHORIZE, AT THE REQUEST OF THE
TAXPAYER, AN EXTENSION OF TIME FOR THE PAYMENT OF TAXES, AND INTEREST
ON SUCH AN EXTENSION WAS CHARGED AT THE RATE OF SIX PER CENT.  FN14
THE TAX ADJUSTMENT ACT OF 1945 WAS PASSED TO IMPROVE THE CASH POSITION
OF TAXPAYERS BY ALLOWING THEM TO DEFER CURRENT TAX PAYMENTS IF THERE
WAS A REASONABLE CHANCE THAT THESE PAYMENTS WOULD BE RETURNED TO THEM
IN THE FUTURE BECAUSE OF BUSINESS LOSSES, AND TO SPEED UP THE REFUND OF
TAXES PAID.  H.R. REP. NO. 849, 79TH CONG., 1ST SESS. 1-6(1945); JOINT
COMMITTEE ON INTERNAL REVENUE TAXATION, REP. NO. 1, 79TH CONG., 1ST
SESS. 6-9(1945).  UNDER SEC. 3779 A CORPORATION FILING ITS RETURN FOR
THE PRECEDING TAX YEAR HAS THE RIGHT TO OBTAIN AN EXTENSION OF TIME FOR
THE PAYMENT OF THE TAX FOR THAT PRECEDING YEAR.  THIS EXTENSION MAY BE
OBTAINED IF THE CORPORATION EXPECTS TO SUFFER, IN THE FISCAL YEAR IN
WHICH THE RETURN IS FILED, A NET OPERATING LOSS SUFFICIENT TO DIMINISH,
BY A CARRY-BACK, ITS TAX LIABILITY FOR THE PRECEDING TAX YEARS.  AT THE
CLOSE OF THAT YEAR, THE TAXPAYER MAY FILE, UNDER SEC. 3780, AN
APPLICATION FOR A TENTATIVE READJUSTMENT OF TAXES FOR PRECEDING YEARS,
INCLUDING A QUICK REFUND OF TAXES PAID OR AN ABATEMENT OF TAXES WHICH
HAVE BEEN DEFERRED.  A CORPORATION WHICH DOES TAKE ADVANTAGE OF THESE
PROVISIONS IS NOT COMPLETELY ABSOLVED FROM THE PAYMENT OF INTEREST ON
DEFERRED TAXES ACTUALLY ABATED.  FOR SEC. 3779(I) EXPRESSLY PROVIDES
THAT THE CORPORATION MUST PAY THREE PER CENT INTEREST ON DEFERRED TAXES
ACTUALLY ABATED BY THE CARRY-BACK AND SIX PER CENT ON THOSE NOT
ABATED.  AGAIN IT IS APPARENT THAT THE CODE CONTEMPLATES TIMELY PAYMENT
OF TAXES AND SUBSUMES THE RIGHT OF THE UNITED STATES TO THE INTERIM USE
OF THE TAX PAYMENTS. 

IT IS ARGUED THAT THE CONCLUSION THAT RESPONDENT IS NOT ENTITLED TO A
REFUND OF THE ASSESSED INTEREST IS UNFAIR, ALLEGEDLY DISCRIMINATING
AGAINST A TAXPAYER WHOSE DEFICIENCY IS ASSESSED UNDER THE ACCELERATED
BANKRUPTCY PROCEDURE IN FAVOR OF ONE WHOSE DEFICIENCY IS ASSESSED UNDER
SEC. 272(A)(1), THE MORE CUSTOMARY "90-DAY LETTER" TAX COURT
PROCEDURE.  THIS SECTION PROVIDES THAT IN THE USUAL CASE THE
COMMISSIONER MUST NOTIFY THE TAXPAYER THAT HE INTENDS TO ASSESS A
DEFICIENCY AGAINST HIM.  THE TAXPAYER IS THEN ALLOWED NINETY DAYS IN
WHICH TO FILE A PETITION WITH THE TAX COURT FOR A REDETERMINATION OF
THE ALLEGED DEFICIENCY, AND THE COMMISSIONER IS RESTRAINED FROM
ASSESSING ANY DEFICIENCY UNTIL THE DECISION OF THE TAX COURT BECOMES
FINAL.  NOR MAY THE COMMISSIONER ASSESS MORE THAN THE AMOUNT THE TAX
COURT DETERMINES TO BE THE DIFICIENCY.  SECTION 292(A), PROVIDING FOR
INTEREST ON DEFICIENCIES, STATES, "INTEREST UPON THE AMOUNT DETERMINED
AS A DEFICIENCY SHALL BE ASSESSED AT THE SAME TIME AS THE DEFICIENCY
...."  THE ARGUMENT IS THAT IF THERE IS NO DEFICIENCY THERE CAN BE NO
INTEREST, AND, IT IS FURTHER URGED, THE TAX COURT WILL NORMALLY ARRIVE
AT A RESULT OF NO DEFICIENCY, FOR IT WILL TAKE INTO CONSIDERATION THE
NET OPERATING LOSS CARRY-BACK IN ITS REDETERMINATION.  THEREFORE, NO
INTEREST WILL BE ASSESSED. 

AT THE TIME OF THE PRINCIPAL ASSESSMENT IN THIS CASE, HOWEVER, THE
NET OPERATING LOSS HAD NOT YET BEEN REPORTED.  NOR HAS THE VALIDITY OF
THE DEFICIENCY ASSESSMENT BEEN CHALLENGED AT ANY TIME THROUGHOUT THE
LITIGATION.  THUS, THE COMPARABLE SITUATION TO THE INSTANT CASE WOULD
BE, IF, BEFORE THE NET OPERATING LOSS WAS CLAIMED, THE TAX COURT WAS
CONFRONTED WITH A DEFICIENCY DETERMINED BY THE COMMISSIONER.  WE SEE NO
REASON WHY THAT METHOD OF ASSESSMENT, OR ANY OF THE OTHERS AUTHORIZED
BY STATUTE, WOULD ARRIVE AT A DIFFERENT FIGURE BECAUSE OF AN UNCLAIMED
NET OPERATING LOSS.  WHETHER THE LANGUAGE OF THE CODE REQUIRES A
DEFFERENT RESULT WHEN THE LOSS IS CLAIMED BEFORE THE ATTEMPTED
ASSESSMENT OF THE DEFICIENCY IS A QUESTION WHICH IS NOT CONSIDERED BY
US ON THIS RECORD.  WE HOLD THAT WHERE A DEFICIENCY AND INTEREST HAVE
BEEN VALIDLY ASSESSED UNDER ANY APPLICABLE STATUTORY PROCEDURE, A
SUBSEQUENT CARRY-BACK WITH AN ABATEMENT OF THE DEFICIENCY DOES NOT
ABATE THE INTEREST PREVIOUSLY ASSESSED ON THAT DEFICIENCY. 

RESPONDENT ALSO PLACES GREAT RELIANCE ON THE PRINCIPLE THAT "INTEREST
IS AN ACCRETION TO AND PART OF THE TAX," AND, THEREFORE, MUST BE ABATED
WHEN THE TAX IS ABATED.  THE CASES TO WHICH WE HAVE BEEN REFERRED IN
SUPPORT OF THIS PRINCIPLE DEAL WITH COMPROMISES OF TAXES WHICH WERE
INCORRECTLY ASSESSED AT THE OUTSET, AND NOT, AS HERE, WITH A SUBSEQUENT
ABATEMENT OF A TAX CORRECTLY ASSESSED.  AS SUCH, THEY ARE NOT
PERSUASIVE OF A CONTRARY RESULT. 

TWO ADMINISTRATIVE RULINGS  FN15  ON THE CARRY-BACK PROVISION OF
THEREVENUE ACT OF 1918, 40 STAT. 1057, ARE CITED AS OPPOSED TO THIS
INTERPRETATION OF THE CODE.  WE SEE NO NEED TO DISTINGUISH THESE
REGULATIONS OR DECISIONS.  TWO RULINGS RELATING TO A CARRY-BACK SECTION
OF TWENTY-FIVE YEARS AGO, NOT REPEATED IN THE INTERVENING
QUARTERCENTURY, ARE NOT SUFFICIENT TO FORCE US TO CONCLUDE THAT
CONGRESS INTENDED TO IMPART THEIR CONSTRUCTION OF THAT SECTION TO THE
PRESENT PROVISION.    WE HAVE CONSIDERED THE REMAINDER OF THE POINTS
RAISED BY THE COURT BELOW AND RESPONDENT, BUT FOR THE FOREGOING REASONS
ARE IN ACCORD THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE
REVERSED AND THE JUDGMENT OF THE DISTRICT COURT AFFIRMED.  REVERSED. 
FN1  THE PAYMENT IN QUESTION INCLUDED CORPORATE INCOME TAX, DEFENSE TAX
AND EXCESS PROFITS TAX.  NO QUESTION IS PRESENTED AS TO THE CORRECTNESS
OF THE DEFENSE TAX PAYMENT. 

FN2  INT. REV. CODE SEC. 274(A):  "UPON THE ADJUDICATION OF
BANKRUPTCY OF ANY TAXPAYER IN ANY BANKRUPTCY PROCEEDING OR THE
APPOINTMENT OF A RECEIVER FOR ANY TAXPAYER IN ANY RECEIVERSHIP
PROCEEDING BEFORE ANY COURT OF THE UNITED STATES OR OF ANY STATE OR
TERRITORY OR OF THE DISTRICT OF COLUMBIA, ANY DEFICIENCY (TOGETHER WITH
ALL INTEREST, ADDITIONAL AMOUNTS, OR ADDITIONS TO THE TAX PROVIDED FOR
BY LAW) DETERMINED BY THE COMMISSIONER IN RESPECT OF A TAX IMPOSED BY
THIS CHAPTER UPON SUCH TAXPAYER SHALL, DESPITE THE RESTRICTIONS IMPOSED
BY SECTION 272(A) UPON ASSESSMENTS BE IMMEDIATELY ASSESSED IF SUCH
DEFICIENCY HAS NOT THERETOFORE BEEN ASSESSED IN ACCORDANCE WITH LAW. 
IN SUCH CASES THE TRUSTEE IN BANKRUPTCY OR RECEIVER SHALL GIVE NOTICE
IN WRITING TO THE COMMISSIONER OF THE ADJUDICATION OF BANKRUPTCY OR THE
APPOINTMENT OF THE RECEIVER, AND THE RUNNING OF THE STATUTE OF
LIMITATIONS ON THE MAKING OF ASSESSMENTS SHALL BE SUSPENDED FOR THE
PERIOD FROM THE DATE OF ADJUDICATION IN BANKRUPTCY OR THE APPOINTMENT
OF THE RECEIVER TO A DATE 30 DAYS AFTER THE DATE UPON WHICH THE NOTICE
FROM THE TRUSTEE OR RECEIVER IS RECEIVED BY THE COMMISSIONER; BUT THE
SUSPENSION UNDER THIS SENTENCE SHALL IN NO CASE BE FOR A PERIOD IN
EXCESS OF TWO YEARS.  CLAIMS FOR THE DEFICIENCY AND SUCH INTEREST,
ADDITIONAL AMOUNTS AND ADDITIONS TO THE TAX MAY BE PRESENTED, FOR
ADJUDICATION IN ACCORDANCE WITH LAW, TO THE COURT BEFORE WHICH THE
BANKRUPTCY OR RECEIVERSHIP PROCEEDING IS PENDING, DESPITE THE PENDENCY
OF PROCEEDINGS FOR THE REDETERMINATION OF THE DEFICIENCY IN PURSUANCE
OF A PETITION TO THE TAX COURT; BUT NO PETITION FOR ANY SUCH
REDETERMINATION SHALL BE FILED WITH THE TAX COURT AFTER THE
ADJUDICATION OF BANKRUPTCY OR THE APPOINTMENT OF THE RECEIVER." 

FN3  DEFICIENCIES WERE ASSESSED BOTH AS TO THE NORMAL INCOME TAX AND
AS TO THE EXCESS PROFITS TAX. 

FURTHER DEFICIENCIES WERE ASSESSED MARCH 21, 1944.  THE INTEREST ON
THESE DEFICIENCIES AMOUNTED TO $82.66, WHEREAS THE INTEREST ON THE
DEFICIENCIES ASSESSED IN AUGUST, 1943, TOTALED $4,430.68.  WE FEEL THAT
ANY POSSIBLE DIFFERENCE IN RESULT ATTRIBUTABLE TO THE TIMING OF THE
ASSESSMENT HAS LITTLE EFFECT ON THE AMOUNT TO WHICH TAXPAYER MIGHT BE
ENTITLED IN THIS CASE, AND WE DO NOT CONSIDER THIS FACTOR. 

THE RECORD IS BARE OF ANY CLAIM OR PAYMENT OF INTEREST FROM THE DATE
OF THE ASSESSMENT OF THE DEFICIENCY UNTIL THE DATE OF THE CLAIM OF THE
REFUND.  SEE INT. REV. CODE SEC. 294(B). 

RESPONDENT DOES NOT URGE AND WE NEED NOT DECIDE THE APPLICABILITY OF
CITY OF NEW YORK V. SAPER, 336 U.S. 328(1949), WHERE WE HELD THAT UNDER
THE CIRCUMSTANCES OF THAT CASE, BANKRUPTCY TERMINATED THE RUNNING OF
INTEREST ON CLAIMS AGAINST THE BANKRUPT.  IN VIEW OF THE FACTS THAT
RESPONDENT WAS REVESTED WITH TITLE TO ITS ASSETS ON JUNE 4, 1945, AND
THAT THE PERIOD BETWEEN THE BANKRUPTCY AND THE MAJOR PART OF THE
ASSESSMENT WAS LESS THAN A MONTH, WE DO NOT FEEL THAT THE HOLDING OF
THAT CASE COULD EFFECT ANY SIGNIFICANT CHANGE IN THE DISPOSITION OF THE
PROBLEM AT HAND. 

FN4  INT. REV. CODE SEC. 122(A):  "AS USED IN THIS SECTION, THE TERM
'NET OPERATING LOSS' MEANS THE EXCESS OF THE DEDUCTIONS ALLOWED BY THIS
CHAPTER OVER THE GROSS INCOME, WITH THE EXCEPTIONS, ADDITIONS, AND
LIMITATIONS PROVIDED IN SUBSECTION (D)." 

FN5  INT. REV. CODE SEC. 122(B)(1):  "IF FOR ANY TAXABLE YEAR
BEGINNING AFTER DECEMBER 31, 1941, THE TAXPAYER HAS A NET OPERATING
LOSS, SUCH NET OPERATING LOSS SHALL BE A NET OPERATING LOSS CARRY-BANK
FOR EACH OF THE TWO PRECEDING TAXABLE YEARS,  ...." 

THE CARRY-BACK OPERATED SIMILARLY ON THE EXCESS PROFITS TAX.  26
U.S.C. SECS. 710, 728, 729(1946).  THE ENTIRE EXCESS PROFITS SECTION OF
THE CODE, PASSED IN 1940, 54 STAT. 975, WAS REPEALED IN 1945, 59 STAT.
568. 

FN6  SEE INT. REV. CODE SECS. 52(A), 53(A), 56(A).  THE TAX MAY ALSO
BE PAID IN QUARTERLY INSTALLMENTS.  INT. REV. CODE SEC. 56(B). 

FN7  INT. REV. CODE SEC. 271(A). 

FN8  INT. REV. CODE SEC. 292(A). 

FN9  E.G., INT. REV. CODE SECS. 291(A), 293(A), (B). 

FN10  INT. REV. CODE SEC. 294(A)(1). 

FN11  INT. REV. CODE SECS. 56(C)(1), 295. 

FN12  INT. REV. CODE SEC. 292(A). 

FN13  INT. REV. CODE SEC. 3771(E):  "IF THE COMMISSIONER DETERMINES
THAT ANY PART OF AN OVERPAYMENT IS ATTRIBUTABLE TO THE INCLUSION IN
COMPUTING THE NET OPERATING LOSS DEDUCTION FOR THE TAXABLE YEAR OF ANY
PART OF THE NET OPERATING LOSS FOR A SUCCEEDING TAXABLE YEAR OR TO THE
INCLUSION IN COMPUTING THE UNUSED EXCESS PROFITS CREDIT ADJUSTMENT FOR
THE TAXABLE YEAR OF ANY PART OF THE UNUSED EXCESS PROFITS CREDIT FOR A
SUCCEEDING TAXABLE YEAR, NO INTEREST SHALL BE ALLOWED OR PAID WITH
RESPECT TO SUCH PART OF THE OVERPAYMENT FOR ANY PERIOD BEFORE THE
FILING OF A CLAIM FOR CREDIT OR REFUND OF SUCH PART OF THE OVERPAYMENT
OR THE FILING OF A PETITION WITH THE TAX COURT, WHICHEVER IS EARLIER;
...." 

FN14  INT. REV. CODE SECS. 56(C), 295. 

FN15  L. O. 1115, II-2 CUM. BULL.  221(1923); I.T. 1447, I-2 CUM.
BULL.  220(1922). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














CIVIL AERO. BD. V. STATE AIRLINES, 338 U.S. 572 


ARGUED DECEMBER 12, 1949.  - DECIDED FEBRUARY 6, 1950.  - 84 U.S. APP.
D.C. 374, 174 F.2D 510, REVERSED. 


UNDER THE CIVIL AERONAUTICS ACT OF 1938, THE CIVIL AERONAUTICS BOARD
CONSOLIDATED 45 ROUTE APPLICATIONS OF 25 AIR LINES INTO ONE AREA
PROCEEDING.  AFTER HEARINGS, IT MADE FINDINGS OF FACT AS TO WHAT NEW
ROUTES SHOULD BE ESTABLISHED AND WHICH OF THE APPLICANTS COULD BEST
SERVE THESE ROUTES.  IT ENTERED ORDERS AUTHORIZING CERTIFICATES OF
CONVENIENCE AND NECESSITY FOR SEVERAL NEW ROUTES IN THE AREA.  ONE
APPLICANT WAS AUTHORIZED TO ENGAGE IN AIR TRANSPORTATION ALONG CERTAIN
OF THESE ROUTES WHICH WERE DIFFERENT FROM THOSE DESCRIBED IN ITS
APPLICATIONS.  ITS APPLICATIONS REQUESTED AUTHORITY TO TRANSPORT ON
"THE ROUTES DETAILED HEREIN, OR SUCH MODIFICATION OF SUCH ROUTES AS THE
BOARD MAY FIND PUBLIC NECESSITY AND CONVENIENCE REQUIRE" AND ALSO
CONTAINED PRAYERS FOR GENERAL RELIEF.  HELD: 

1.  ON THE RECORD IN THIS CASE, THE APPLICATIONS WERE SUFFICIENT TO
PERMIT CERTIFICATION OF THIS APPLICANT FOR THE ROUTES AWARDED.  PP. 575
578. 

(A)  EXCEPT FOR THE STATUTORY REQUIREMENT OF WRITTEN AND VERIFIED
APPLICATIONS, CONGRESS PLAINLY INTENDED TO LEAVE THE BOARD FREE TO WORK
OUT APPLICATION PROCEDURES REASONABLY ADAPTED TO FAIR AND ORDERLY
ADMINISTRATION OF ITS COMPLEX RESPONSIBILITIES.  P. 576. 

(B)  IN DECIDING THAT THE POLICIES OF THE ACT COULD BEST BE SERVED IN
THIS CASE BY A CONSOLIDATED AREA PROCEEDING, THE BOARD DID NOT EXCEED
ITS PROCEDURAL DISCRETION.  PP. 576-577. 

(C)  IN AWARDING ROUTES VARYING FROM THOSE SPECIFICALLY DETAILED IN
THE APPLICATIONS IN THIS CASE, THE BOARD DID NOT DEPART FROM
CONGRESSIONAL POLICY HINGING CERTIFICATION GENERALLY ON APPLICATION
PROCEDURES.  PP. 577-578. 

(D)  THE STANDARD ADOPTED BY THE BOARD UNDER WHICH THE PUBLIC
INTEREST IS GIVEN PARAMOUNT CONSIDERATION IS A CORRECT STANDARD.  PP.
580-581. 

2.  ON THE RECORD IN THIS CASE, AN UNSUCCESSFUL APPLICANT WAS NOT
DENIED A FAIR HEARING IN THE PROCEEDINGS BEFORE THE BOARD.  PP.  578
581. 

3.  ON THE RECORD IN THIS CASE, THE BOARD'S FINDING THAT THE
SUCCESSFUL APPLICANT WAS FIT AND ABLE TO PERFORM THE SERVICES
AUTHORIZED AND WAS BETTER QUALIFIED TO DO SO THAN THE UNSUCCESSFUL
APPLICANT, WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND IS SUSTAINED.  PP.
581-582. 

CIVIL AERONAUTICS BOARD V. STATE AIRLINES, INC. 

NO. 157.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT* . 

*TOGETHER WITH NO. 158, STATE AIRLINES, INC. V. CIVIL AERONAUTICS
BOARD ET AL., AND NO. 159, PIEDMONT AVIATION, INC. V. STATE AIRLINES,
INC., ALSO ON CERTIORARI TO THE SAME COURT. 

THE COURT OF APPEALS REVERSED AN ORDER OF THE CIVIL AERONAUTICS BOARD
GRANTING CERTIFICATES OF CONVENIENCE AND NECESSITY FOR THE OPERATION OF
CERTAIN NEW AIR-LINE ROUTES.  84 U.S. APP. D.C. 374, 174 F.2D 510. 
THIS COURT GRANTED CERTIORARI.  338 U.S. 812.  NO. 158 DISMISSED; NOS.
157 AND 159 REVERSED, P. 582. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ACTING UNDER THE CIVIL AERONAUTICS ACT OF 1938,  FN1  THE CIVIL
AERONAUTICS BOARD (C.A.B.)  CONSOLIDATED SOME 45 ROUTE APPLICATIONS OF
25 AIRLINES INTO ONE AREA PROCEEDING, STYLED THE "SOUTHEASTERN STATES
CASE."  AFTER HEARINGS, IT MADE FINDINGS OF FACT AS TO WHAT NEW ROUTES
SHOULD BE ESTABLISHED AND WHICH OF THE APPLICANTS COULD BEST SERVE
THESE ROUTES.  IT THEN ENTERED ORDERS AUTHORIZING CERTIFICATES OF
CONVENIENCE AND NECESSITY FOR SEVERAL NEW ROUTES IN THE AREA.  PIEDMONT
AVIATION, INC., WAS AUTHORIZED TO ENGAGE IN AIR TRANSPORTATION OF
PERSONS, PROPERTY, AND MAIL ALONG CERTAIN OF THESE ROUTES.  STATE
AIRLINES, INC., WAS DENIED AUTHORITY TO ACT AS A CARRIER ON ANY OF
THEM.  FN2  STATE FILED A PETITION IN THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ASKING THAT COURT TO
REVERSE THE ORDERS AND REMAND THE CASE TO THE BOARD WITH DIRECTIONS TO
GRANT CARRIER CERTIFICATES TO STATE INSTEAD OF PIEDMONT.  FN3  THE
COURT REVERSED INSOFAR AS THE ORDERS AWARDED CERTIFICATES TO PIEDMONT
BUT HELD THAT IT WAS WITHOUT POWER TO DIRECT THE BOARD TO CERTIFY
STATE.  FN4  A CRUCIAL GROUND OF THE COURT'S REVERSAL WAS ITS FINDING
THAT PIEDMONT HAD NEVER FILED AN APPLICATION FOR THE PARTICULAR ROUTES
CERTIFIED, AN INDISPENSABLE PREREQUISITE TO CERTIFICATION AS THE COURT
OF APPEALS INTERPRETED THE CIVIL AERONAUTICS ACT.  A SECOND GROUND FOR
REVERSAL WAS THAT SINCE PIEDMONT HAD FILED NO APPLICATION FOR THE
PARTICULAR ROUTES CERTIFIED, STATE FAILED TO HAVE SUFFICIENT NOTICE
THAT THE BOARD MIGHT CONSIDER PIEDMONT AS A COMPETING APPLICANT, AND
THUS WAS DEPRIVED OF A FAIR OPPORTUNITY TO DISCREDIT PIEDMONT'S FITNESS
AND ABILITY TO SERVE THOSE ROUTES.  A THIRD GROUND WAS THAT THE BOARD'S
FINDINGS THAT PIEDMONT WAS FIT AND ABLE TO SERVE THE ROUTES "WERE, IN
THE LEGAL SENSE, ARBITRARY AND CAPRICIOUS AND LACKED THE SUPPORT OF
SUBSTANTIAL EVIDENCE."  BOTH PIEDMONT AND THE BOARD PETITIONED FOR
REVIEW OF THE COURT'S REVERSAL, WHILE STATE CROSS-PETITIONED FOR REVIEW
OF THE COURT'S REFUSAL TO DIRECT CERTIFICATION OF STATE.  FN5  WE
GRANTED CERTIORARI BECAUSE A FINAL DETERMINATION OF THE QUESTIONS
INVOLVED, PARTICULARLY THOSE INVOLVING INTERPRETATION OF THE ACT, IS OF
IMPORTANCE FOR FUTURE GUIDANCE OF THE BOARD IN CARRYING OUT ITS
CONGRESSIONALLY IMPOSED FUNCTIONS.  338 U.S. 812. 

FIRST.  WE HOLD THAT PIEDMONT'S APPLICATIONS WERE SUFFICIENT TO
PERMIT CERTIFICATION OF PIEDMONT FOR THE ROUTES AWARDED.  THE CONTRARY
HOLDING OF THE COURT OF APPEALS RESTED PRIMARILY ON ITS INTERPRETATION
OF SEC. 401(D)(1) AND (2) OF THE CIVIL AERONAUTICS ACT.  THE PARTICULAR
LANGUAGE MOST RELIED ON BY THE COURT WAS THAT WHICH EMPOWERS THE BOARD
TO ISSUE CERTIFICATES "AUTHORIZING THE WHOLE OR ANY PART OF THE
TRANSPORTATION COVERED BY THE APPLICATION, IF IT FINDS THAT THE
APPLICANT IS FIT, WILLING, AND ABLE TO PERFORM SUCH TRANSPORTATION
PROPERLY  ...."  THE COURT OF APPEALS READ THIS LANGUAGE AS SHOWING A
CONGRESSIONAL PURPOSE TO BAR THE BOARD FROM GRANTING ANY CERTIFICATES
IN WHICH THE ROUTES AWARDED DEVIATE MORE THAN SLIGHTLY FROM THE PRECISE
ROUTES DEFINED IN THE APPLICATION.  WE THINK THAT SUCH A NARROW
INTERPRETATION IS NOT COMPELLED BY THE LANGUAGE OF SEC. 401(D) AND THAT
THE ACT AS A WHOLE REFUTES ANY INTENT TO FREEZE THE BOARD'S PROCEDURES
IN SO RIGID A MOLD. 

THE LANGUAGE OF SEC. 401(D)(1) AND (2) UNQUALIFIEDLY GIVES THE BOARD
POWER, AFTER APPLICATION AND APPROPRIATE FINDINGS, TO ISSUE
CERTIFICATES FOR THE WHOLE OR ANY PART OF TRANSPORTATION COVERED IN AN
APPLICATION.  THIS MANIFESTS A PURPOSE GENERALLY TO GEAR THE AWARD OF
CERTIFICATES TO AN APPLICATION PROCEDURE.  BUT CONGRESS MADE NO ATTEMPT
IN (1) AND (2) OF SEC. 401(D) TO DEFINE THE FULL REACH OR CONTENTS OF
AN APPLICATION.  THESE SUBSECTIONS DO NOT EVEN REQUIRE AN APPLICANT TO
DESIGNATE THE TERMINAL CITIES OR THE INTERMEDIATE POINTS A PROPOSED
ROUTE WOULD SERVE.  A DIFFERENT PROVISION, SEC. 401(B), CONTAINS THE
ONLY REQUIREMENTS DIRECTLY IMPOSED BY CONGRESS - THAT AN APPLICATION
MUST BE IN WRITING AND VERIFIED.  FN7  WITH THIS ONE EXCEPTION, SEC.
401(B) PROVIDES THAT AN APPLICATION "SHALL BE IN SUCH FORM AND CONTAIN
SUCH INFORMATION  ...  AS THE BOARD SHALL BY REGULATION REQUIRE."  AND
IN SEC. 1001 CONGRESS GRANTED THE BOARD AUTHORITY TO "CONDUCT ITS
PROCEEDINGS IN SUCH MANNER AS WILL BE CONDUCIVE TO THE PROPER DISPATCH
OF BUSINESS AND TO THE ENDS OF JUSTICE."  THUS, EXCEPT FOR THE
STATUTORY REQUIREMENT OF WRITTEN AND VERIFIED APPLICATIONS, CONGRESS
PLAINLY INTENDED TO LEAVE THE BOARD FREE TO WORK OUT APPLICATION
PROCEDURES REASONABLY ADAPTED TO FAIR AND ORDERLY ADMINISTRATION OF ITS
COMPLEX RESPONSIBILITIES. 

HERE THE BOARD DECIDED THAT THE POLICIES OF THE ACT COULD BEST BE
SERVED BY A CONSOLIDATED AREA PROCEEDING.  IN DOING SO IT DID NOT
EXCEED ITS PROCEDURAL DISCRETION.  ONLY THROUGH SUCH JOINT HEARINGS
COULD THE BOARD EXPEDITIOUSLY DECIDE WHAT NEW ROUTES SHOULD BE
ESTABLISHED, IF ANY, AND WHICH OF THE NUMEROUS APPLICANTS SHOULD BE
SELECTED AS APPROPRIATE CARRIERS FOR DIFFERENT ROUTES.  AND IN SUCH A
PROCEEDING, AS THE BOARD HAS FOUND, LIMITING ALL APPLICATIONS TO THE
PRECISE ROUTES THEY DESCRIBE WOULD DESTROY NECESSARY FLEXIBILITY.  FOR
THE BOARD'S DECISION AS TO WHAT NEW ROUTES ARE ACTUALLY AVAILABLE IS
NOT REACHED UNTIL LONG AFTER THE APPLICATIONS ARE FILED.  RECOGNIZING
THIS, PIEDMONT, LIKE OTHER AIRLINES, INSERTED A SO-CALLED "CATCHALL
CLAUSE" IN ITS APPLICATIONS, BROADLY REQUESTING AUTHORITY TO TRANSPORT
ON "THE ROUTES DETAILED HEREIN, OR SUCH MODIFICATION OF SUCH ROUTES AS
THE BOARD MAY FIND PUBLIC CONVENIENCE AND NECESSITY REQUIRE."  IT ALSO
INCLUDED A GENERAL PRAYER "FOR SUCH OTHER AND FURTHER RELIEF, GENERAL
AND SPECIFIC, UNDER SECTION 401 OF THE ... ACT  ...  AS THE BOARD MAY
DEEM APPROPRIATE, AND TO WHICH THE APPLICANT MAY BE ENTITLED IN ANY
PROCEEDING IN WHICH THE APPLICATION MAY BE HEARD IN PART OR IN ITS
ENTIRETY." 

WE ARE CONVINCED THAT THE BOARD, IN AWARDING ROUTES VARYING FROM
THOSE SPECIFICALLY DETAILED IN PIEDMONT'S APPLICATION, HAS NOT DEPARTED
FROM THE CONGRESSIONAL POLICY HINGING CERTIFICATION GENERALLY ON
APPLICATION PROCEDURES.  WHILE THE ROUTES SOUGHT BY PIEDMONT DID DIFFER
MARKEDLY FROM THOSE AWARDED,  FN8  THEY WERE ALL IN THE GENERAL AREA
COVERED BY THE CONSOLIDATED HEARINGS.  ALL TWENTY-FIVE APPLICANTS HAD
ASKED FOR ROUTES SOMEWHERE IN THE AREA, AND MANY OF THESE ROUTES
OVERLAPPED.  IN SUCH AN AREA PROCEEDING IT WOULD EXALT IMAGINARY
PROCEDURAL RIGHTS ABOVE THE PUBLIC INTEREST TO HOLD THAT THE BOARD IS
HAMSTRUNG BY THE LACK OF FORESIGHT OR SKILL OF A DRAFTSMAN IN
DESCRIBING ROUTES.  THE FLEXIBLE REQUIREMENTS SET BY THE BOARD WERE
REASONABLE.  THEY ACCORDED WITH THE POLICIES OF THE ACT.  THE BOARD IN
WELL-CONSIDERED OPINIONS HELD THAT PIEDMONT'S APPLICATION MET THESE
REQUIREMENTS.  THAT APPLICATION ALSO MET THE CONGRESSIONAL REQUIREMENTS
OF WRITING AND VERIFICATION.  SO FAR AS SEC. 401(D)(1) AND (2) ARE
CONCERNED, THE BOARD ACTED WITHIN ITS POWER IN ENTERING THE ORDERS. 

SECOND.  THE COURT OF APPEALS RECOGNIZED THAT FULL HEARINGS WERE HELD
IN THE AREA PROCEEDINGS AFTER DUE NOTICE TO ALL INTERESTED PARTIES. 
BUT THAT COURT NEVERTHELESS HELD THAT STATE WAS WITHOUT ADEQUATE NOTICE
THAT THE BOARD MIGHT CONSIDER PIEDMONT AS AN APPLICANT FOR ROUTES
ENCROACHING ON THOSE SOUGHT BY STATE.  THIS CONTENTION LARGELY RESTS ON
THE STATUTORY INTERPRETATION WE HAVE REJECTED.  STATE ARGUES, HOWEVER,
THAT SINCE IT NEVER CONSIDERED PIEDMONT AS A POSSIBLE APPLICANT FOR THE
ROUTES AWARDED, IT FAILED TO PRODUCE AVAILABLE EVIDENCE AND ARGUMENTS
TO CONVINCE THE BOARD THAT PIEDMONT WAS NOT FIT AND ABLE TO SERVE AS A
CARRIER ON THE ROUTES. 

THIS CHALLENGE IS SUBSTANTIAL.  THE BOARD'S MAJOR STANDARD IS THE
PUBLIC INTEREST IN HAVING CONVENIENT ROUTES SERVED BY FIT AND ABLE
CARRIERS.  THESE QUESTIONS ARE TO BE DETERMINED IN HEARINGS AFTER
NOTICE.  THE PRIME PURPOSE OF ALLOWING INTERESTED PERSONS TO OFFER
EVIDENCE IS TO GIVE THE BOARD THE ADVANTAGE OF ALL AVAILABLE
INFORMATION AS A BASIS FOR ITS SELECTION OF THE APPLICANT BEST
QUALIFIED TO SERVE THE PUBLIC INTEREST.  CF. FEDERAL COMMUNICATIONS
COMM'N V. SANDERS RADIO STATION, 309 U.S. 470, 477.  IF THE BOARD HAD
NEGLECTED THIS PURPOSE, STATE COULD RIGHTLY COMPLAIN. 

HERE, HOWEVER, WE FIND THAT THE BOARD FULLY APPRECIATED ITS
RESPONSIBILITY IN THIS RESPECT.  IT SEEMS PLAIN TO US FROM THE ENTIRE
RECORD THAT STATE DID FULLY RECOGNIZE THAT PIEDMONT WAS A POTENTIAL
COMPETITIVE APPLICANT IN THE CONSOLIDATED PROCEEDINGS.  THEIR
APPLICATIONS IN LARGE PART SOUGHT CERTIFICATES IN THE SAME GENERAL
AREA.  EACH ARGUED AGAINST THE OTHER BEFORE THE BOARD. 

MOREOVER, AFTER ISSUANCE OF THE ORDER, THE BOARD GRANTED STATE A
LIMITED REHEARING TO SHOW, IF IT COULD, THAT THE PROCEEDING SHOULD BE
REOPENED TO ENABLE STATE TO OFFER NEW EVIDENCE AGAINST PIEDMONT'S
FITNESS AND ABILITY.  IN THE REHEARING ARGUMENT, STATE'S MAIN
CONTENTION WAS THAT THE BOARD LACKED JURISDICTION BECAUSE OF THE
LIMITED NATURE OF PIEDMONT'S APPLICATION, A CONTENTION WE HAVE ALREADY
REJECTED.  BUT STATE ALSO CONTENDED THAT HAD IT KNOWN PIEDMONT TO BE AN
ACTUAL COMPETITOR, STATE WOULD HAVE MADE DILIGENT EFFORTS BY CROSS
EXAMINATION AND OTHERWISE TO PREVENT THE BOARD'S FINDING THAT
PIEDMONT'S QUALIFICATIONS WERE SUPERIOR TO STATE'S.  THE RECORD REVEALS
THAT THE BOARD GAVE MOST CAREFUL CONSIDERATION TO ALL THE CONTENTIONS
MADE BY STATE'S COUNSEL.  THE BOARD IN AN OPINION DISCUSSED EACH OF
THOSE CONTENTIONS.  8 C.A.B. 716.  WITH PARTICULAR REFERENCE TO THE
GENERAL CONTENTION THAT IN REOPENED PROCEEDINGS STATE COULD OFFER
EVIDENCE TO REFUTE THE BOARD'S FINDINGS OF PIEDMONT'S SUPERIOR
QUALIFICATIONS, THE BOARD SAID:  "ALTHOUGH IN THE COURSE OF THE
SUBSEQUENT ARGUMENT STATE ASSERTED THAT HAD IT BEEN AWARE OF THE
SITUATION IT MIGHT HAVE PRESENTED ADDITIONAL OR DIFFERENT EVIDENCE AND
WOULD HAVE ENLARGED UPON ITS INQUIRIES INTO PIEDMONT'S CASE, IT DID
NOT, IN THE COURSE OF THE ARGUMENT OR IN ITS PETITION FOR
RECONSIDERATION, SPECIFY WHAT THE NATURE OF SUCH ADDITIONAL EVIDENCE OR
INQUIRIES WOULD HAVE BEEN."  FN9  ID., AT 721.  IT WAS IN THIS SETTING
THAT THE BOARD HELD STATE'S SHOWING INADEQUATE TO JUSTIFY NEW HEARINGS
CONCERNING THE RESPECTIVE QUALIFICATIONS OF STATE AND PIEDMONT.  IN
REAFFIRMING ITS PREVIOUS HOLDING OF PIEDMONT'S SUPERIOR QUALIFICATIONS,
THE BOARD SAID:  "THE ONLY PRACTICAL APPROACH THAT CAN BE TAKEN IN
CASES OF THIS TYPE IS TO CONSIDER THE APPLICATIONS, NOT WITH A VIEW AS
TO HOW AN INDIVIDUAL PROPOSAL WOULD BENEFIT THE APPLICANT, OR WHETHER A
PARTICULAR PROPOSED ROUTE IS REQUIRED PRECISELY AS SET FORTH IN AN
APPLICATION, BUT RATHER TO CONSIDER THE ENTIRE CASE WITH THE OBJECTIVE
OF ESTABLISHING A SOUND TRANSPORTATION PATTERN IN THE AREA INVOLVED." 
FN10  8 C.A.B. AT 722. 

WE THINK THE STANDARD ADOPTED BY THE BOARD UNDER WHICH THE PUBLIC
INTEREST IS GIVEN A PARAMOUNT CONSIDERATION IS A CORRECT STANDARD.  AND
SINCE THE BOARD'S CONCLUSION THAT THE PROCEEDING SHOULD NOT BE REOPENED
REPRESENTS ITS INFORMED JUDGMENT AFTER A SEARCHING INQUIRY, WE ACCEPT
ITS CONCLUSION.  BECAUSE OF THE FOREGOING AND OTHER CIRCUMSTANCES
DISCLOSED BY THE RECORD WE THINK THERE IS NO GROUND FOR STATE'S
CONTENTION THAT IT FAILED TO HAVE A FAIR HEARING.  SEE CHICAGO, ST.
PAUL, MINNEAPOLIS & OMAHA R. CO. V. UNITED STATES, 322 U.S. 1, 3. 

THIRD.  DURING THE REHEARING ARGUMENT, COUNSEL FOR STATE WAS ASKED BY
A MEMBER OF THE BOARD WHETHER STATE TOOK THE POSITION THAT PIEDMONT WAS
"NOT CAPABLE OF RUNNING THE ROUTE THAT WAS AWARDED."  HE REPLIED:  "WE
ARE TAKING THE POSITION THAT BOTH STATE AND PIEDMONT ARE FIT AND ABLE,
IT'S A QUESTION OF WHICH HAS DEMONSTRATED IN THIS RECORD TO BE MORE
FIT, WILLING AND ABLE."  STATE NEVERTHELESS CONTENDS HERE, AND THE
COURT OF APPEALS HELD, THAT THERE WAS NO SUFFICIENT EVIDENCE TO SUPPORT
THE BOARD'S FINDING OF PIEDMONT'S FITNESS AND ABILITY.  THIS
CONTENTION, LIKE OTHERS, RESTS ALMOST WHOLLY ON THE ARGUMENT THAT
PIEDMONT HAD NOT APPLIED FOR THE PARTICULAR ROUTES AWARDED AND THUS
COULD NOT HAVE EVIDENCED ITS ABILITY TO HANDLE THOSE ROUTES.  THE COURT
OF APPEALS ALSO EMPHASIZED THE FACT THAT THE ROUTES AWARDED REQUIRED
PIEDMONT TO TRANSPORT OVER MOUNTAINS, WHEREAS THE DETAILED PASSENGER
ROUTES FOR WHICH IT HAD APPLIED WOULD NOT HAVE CROSSED THE MOUNTAINS;
IT CONTRASTED THIS WITH STATE'S APPLICATIONS, WHICH HAD SPECIFICALLY
SHOWN ROUTES CROSSING THE MOUNTAINS.  PRECISELY WHAT ADDED SKILLS, IF
ANY, ARE REQUIRED FOR FLIGHTS ACROSS MOUNTAINS IS A MATTER OF PROOF. 
IN THE EXTENSIVE HEARINGS HELD IN THIS AREA PROCEEDING, EACH APPLICANT
WAS REQUIRED TO AND DID OFFER EVIDENCE CONCERNING FITNESS AND ABILITY. 
MUCH OF THIS EVIDENCE CONCERNED THE FINANCIAL CONDITION AND EXPERIENCE
IN AVIATION OF BOTH PIEDMONT AND STATE.  THE BOARD'S OPINIONS SHOW THE
PAINSTAKING CONSIDERATION GIVEN THIS EVIDENCE.  THE BOARD FOUND BOTH
AIRLINES FIT AND ABLE, BUT FOUND THE EVIDENCE OF QUALIFICATIONS AS
BETWEEN THE TWO WEIGHTED ON PIEDMONT'S SIDE.  WE HOLD THAT THE
CONCLUSION WAS SUPPORTED BY SUBSTANTIAL EVIDENCE.    IN VIEW OF OUR
CONCLUSION WE NEED NOT CONSIDER THE ALLEGATIONS OF STATE'S CROSS
PETITION IN NO. 158 AND THAT CASE IS THEREFORE DISMISSED.  IN NOS. 157
AND 159 THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.  IT IS SO
ORDERED. 

FN1  52 STAT. 973, 49 U.S.C. SEC. 401 ET SEQ. 

FN2  THE SEVERAL OPINIONS OF THE BOARD ARE REPORTED.  7 C.A.B. 863; 8
C.A.B. 585 AND 716. 

FN3  AUTHORITY FOR JUDICIAL REVIEW IS GIVEN BY SEC. 1006 OF THE ACT,
52 STAT. 1024, 49 U.S.C. SEC. 646. 

FN4  84 U.S. APP. D.C. 374, 174 F.2D 510. 

FN5  THE BOARD'S PETITION IS OUR DOCKET NO. 157; PIEDMONT'S IS NO.
159; STATE'S CROSS-PETITION IS NO. 158. 

FN6  THERE ARE SLIGHT BUT IMMATERIAL VARIANTS IN THE RELEVANT
LANGUAGE AS IT APPEARS IN (1) AND (2) OF SEC. 401(D).  THOSE SECTIONS,
AS ITALICIZED BY THE COURT OF APPEALS, READ: 

"(1)  THE BOARD SHALL ISSUE A CERTIFICATE AUTHORIZING THE WHOLE OR
ANY PART OF THE TRANSPORTATION COVERED BY THE APPLICATION, IF IT FINDS
THAT THE APPLICANT IS FIT, WILLING, AND ABLE TO PERFORM SUCH
TRANSPORTATION PROPERLY, AND TO CONFORM TO THE PROVISIONS OF THIS
CHAPTER (ORIGINALLY THIS ACT) AND THE RULES, REGULATIONS, AND
REQUIREMENTS OF THE BOARD HEREUNDER, AND THAT SUCH TRANSPORTATION IS
REQUIRED BY THE PUBLIC COVENIENCE AND NECESSITY; OTHERWISE SUCH
APPLICATION SHALL BE DENIED. 

"(2)  IN THE CASE OF AN APPLICATION FOR A CERTIFICATE TO ENGAGE IN
TEMPORARY AIR TRANSPORTATION, THE BOARD MAY ISSUE A CERTIFICATE
AUTHORIZING THE WHOLE OR ANY PART THEREOF FOR SUCH LIMITED PERIODS AS
MAY BE REQUIRED BY THE PUBLIC CONVENIENCE AND NECESSITY, IF IT FINDS
THAT THE APPLICANT IS FIT, WILLING, AND ABLE PROPERLY TO PERFORM SUCH
TRANSPORTATION AND TO CONFORM TO THE PROVISIONS OF THIS CHAPTER AND THE
RULES, REGULATIONS, AND REQUIREMENTS OF THE BOARD HEREUNDER." 

FN7  "APPLICATION FOR A CERTIFICATE SHALL BE MADE IN WRITING TO THE
(BOARD) AND SHALL BE SO VERIFIED, SHALL BE IN SUCH FORM AND CONTAIN
SUCH INFORMATION, AND SHALL BE ACCOMPANIED BY SUCH PROOF OF SERVICE
UPON SUCH INTERESTED PERSONS, AS THE (BOARD) SHALL BY REGULATION
REQUIRE."  CIVIL AERONAUTICS ACT OF 1938, AS AMENDED, SEC. 401(B). 

FN8  THE COURT OF APPEALS PLACED IN ITS OPINION TWO MAPS CHARTING THE
PASSENGER ROUTES APPLIED FOR BY PIEDMONT AND STATE AND INDICATING THAT
THE ROUTES AWARDED PIEDMONT FAR MORE NEARLY APPROXIMATED THOSE SOUGHT
BY STATE.  THE BOARD AND STATE TAKE THE POSITION THAT THESE MAPS DO NOT
SHOW ALL OF THE POINTS AND ROUTES APPLIED FOR BY EITHER AIRLINE, AND
THE COURT OF APPEALS SAID AS MUCH WITH REFERENCE TO THE MAPS.  BUT THE
VIEW WE TAKE MAKES IT UNNECESSARY TO ELABORATE THE DIFFERENT VIEWS AS
TO THE PRECISE ROUTES FOR WHICH PIEDMONT AND STATE APPLIED. 

FN9  THE RECORD DOES SHOW A STATEMENT BY STATE'S COUNSEL, MADE NEAR
THE END OF THE REHEARING ARGUMENT, THAT "HAD STATE KNOWN THAT PIEDMONT
WAS AN APPLICANT FOR THESE ROUTES" IT COULD HAVE PROVEN IN THE ORIGINAL
HEARINGS THAT PIEDMONT DID NOT HAVE "FACILITIES FOR ALL TYPES OF
OVERHAUL."  IT MAY BE THAT THIS GENERAL SUGGESTION CAN BE CONSIDERED AS
A REQUEST BY STATE TO REOPEN THE PROCEEDINGS FOR PROOF ON THIS
PARTICULAR SINGLE POINT.  IF SO CONSIDERED, IT IS SUFFICIENT TO POINT
OUT THAT THE BOARD FOUND THAT PIEDMONT HAD ADEQUATE FINANCING TO OBTAIN
ALL NECESSARY EQUIPMENT, WHICH IS A MAJOR CONSIDERATION IN DETERMINING
THE COMPARATIVE FITNESS AND ABILITY AS BETWEEN APPLICANTS WHO PROPOSE
TO OPERATE NEWLY ESTABLISHED ROUTES.  SEE THE CASE CITED IN THE BOARD'S
OPINION, AMERICAN EXPORT AIRLINES, INC., TRANS-ATLANTIC SERVICE, 2
C.A.B. 16, 38(1940). 

FN10  IN THIS COURT A SUGGESTION IS MADE THAT TWO SENTENCES BY ONE
MEMBER OF THE BOARD DURING THE REHEARING ARGUMENT INDICATE THAT THE
BOARD ACTED ON A WRONG STANDARD OF PUBLIC INTEREST: "YES, BUT APART
FROM ALL THESE LEGALISMS, ISN'T THE REAL ISSUE WHETHER OR NOT WE MADE A
MISTAKE AND PICKED A CARRIER WHO CANNOT RUN THIS ROUTE?  IF WE REALLY
GET DOWN AND TRY TO FIND WHAT IS THE PUBLIC INTEREST, ISN'T THAT THE
REAL POINT?"  IT IS SAID THAT THIS STATEMENT DEPARTS FROM THE STANDARD
OF "PUBLIC INTEREST, CONVENIENCE, OR NECESSITY."  BUT IN THE STATEMENT
ITSELF THE BOARD MEMBER POINTED OUT THAT THE PROPER STANDARD WAS "THE
PUBLIC INTEREST."  MOREOVER, HE WENT ON TO SAY THAT "THE IMPORTANT
THING IS NOT WHETHER YOU WIN OR PIEDMONT WINS BUT WHETHER THE PEOPLE OF
NORTH CAROLINA AND KENTUCKY AND VIRGINIA AND THAT AREA IN THERE GET THE
KIND OF SERVICE THAT THEY SHOULD." 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
DISSENTING. 

THE CIVIL AERONAUTICS BOARD HAS BEEN AUTHORIZED BY CONGRESS TO AWARD
CERTIFICATES OF CONVENIENCE AND NECESSITY TO APPLICANTS FOR AIR
ROUTES.  THE BOARD MAY GIVE TO ONE APPLICANT, AND DENY TO OTHERS, THE
EXCLUSIVE PRIVILEGE OF SERVING AN AIR ROUTE TO THE APPLICANT'S PRIVATE
PROFIT.  A DETERMINATION BY THE BOARD, HOWEVER, INVOLVES MORE THAN A
CHOICE AMONG COMPETING INDIVIDUALS; THE BOARD HAS BEEN MADE THE
GUARDIAN OF THE NATIONAL INTEREST AND THE ARBITER OF THE CONFLICTING
CONCERNS OF VARIOUS COMMUNITIES.  THE INTERESTS TO BE PROTECTED ARE SO
IMPORTANT THAT CONGRESS HAS LEGISLATED TO INSURE THAT THOSE SEEKING
THIS UNIQUE PUBLIC PRIVILEGE BE NOT INSULATED FROM CHALLENGE AND
COMPETITION.  THE CIVIL AERONAUTICS ACT PROVIDES, 52 STAT. 987, SEC.
401:

        "APPLICATION FOR CERTIFICATE 

"(B)  APPLICATION FOR A CERTIFICATE SHALL BE MADE IN WRITING TO THE
AUTHORITY AND SHALL BE SO VERIFIED, SHALL BE IN SUCH FORM AND CONTAIN
SUCH INFORMATION, AND SHALL BE ACCOMPANIED BY SUCH PROOF OF SERVICE
UPON SUCH INTERESTED PERSONS, AS THE AUTHORITY SHALL BY REGULATION
REQUIRE. 

                        "NOTICE OF APPLICATION 

"(C)  UPON THE FILING OF ANY SUCH APPLICATION, THE AUTHORITY SHALL
GIVE DUE NOTICE THEREOF TO THE PUBLIC BY POSTING A NOTICE OF SUCH
APPLICATION IN THE OFFICE OF THE SECRETARY OF THE AUTHORITY AND TO SUCH
OTHER PERSONS AS THE AUTHORITY MAY BY REGULATION DETERMINE.  ANY
INTERESTED PERSON MAY FILE WITH THE AUTHORITY A PROTEST OR MEMORANDUM
OF OPPOSITION TO OR IN SUPPORT OF THE ISSUANCE OF A CERTIFICATE.  SUCH
APPLICATION SHALL BE SET FOR PUBLIC HEARING, AND THE AUTHORITY SHALL
DISPOSE OF SUCH APPLICATION AS SPEEDILY AS POSSIBLE. 

"ISSUANCE OF CERTIFICATE 

"(D)(1)  THE AUTHORITY SHALL ISSUE A CERTIFICATE AUTHORIZING THE
WHOLE OR ANY PART OF THE TRANSPORTATION COVERED BY THE APPLICATION, IF
IT FINDS THAT THE APPLICANT IS FIT, WILLING, AND ABLE TO PERFORM SUCH
TRANSPORTATION PROPERLY, AND TO CONFORM TO THE PROVISIONS OF THIS ACT
AND THE RULES, REGULATIONS, AND REQUIREMENTS OF THE AUTHORITY
HEREUNDER, AND THAT SUCH TRANSPORTATION IS REQUIRED BY THE PUBLIC
CONVENIENCE AND NECESSITY; OTHERWISE SUCH APPLICATION SHALL BE
DENIED." 

THE PROCEDURES SO DEFINED BY CONGRESS PROVIDE THE FRAME WITHIN WHICH
THE BOARD'S DISCRETION MAY FREELY MOVE.  SO LONG AS THAT DISCRETION IS
EXERCISED WITHIN THE FRAME, THE COURTS SHOULD NOT INTERFERE.  BUT
BECAUSE THE RESPONSIBILITY PLACED IN THE BOARD BY CONGRESS IS GREAT,
AND BECAUSE THE DAMAGE A BOARD ERROR IN AWARDING A CERTIFICATE MAY
CAUSE TO OTHER CARRIERS AND THE PUBLIC IS IRREPARABLE, THE COURTS
SHOULD INSIST THAT THE PROCEDURES BE STRICTLY FOLLOWED. 

THEY WERE NOT FOLLOWED HERE.  IN 1945 THE CIVIL AERONAUTICS BOARD
CONSOLIDATED FOR A COMMON HEARING THE APPLICATIONS, PARTICULARIZED AS
REQUIRED BY THE STATUTE AND REGULATIONS, OF TWENTY-FIVE AIR-LINE
COMPANIES WHICH HAD FILED DOCUMENTS SEEKING CERTIFICATES FOR FORTY-FIVE
SPECIFIC ROUTES, VARYING CONSIDERABLY, BUT ALL WITHIN AN AREA THAT
EXTENDS ROUGHLY FROM MARYLAND TO FLORIDA, VIRGINIA TO MISSOURI.  AFTER
SETTLING UPON THE FEW ROUTES TO BE AWARDED, THE COMMISSION, WITHOUT
FURTHER NOTICE TO ANYONE, SELECTED FOR ONE OF THESE PIEDMONT, WHICH HAD
ASKED FOR A QUITE DIFFERENT ROUTE.  HOW MUCH THE ROUTE GRANTED DIFFERED
FROM THAT APPLIED FOR MAY BE SEEN READILY BY A GLANCE AT THE MAPS IN 84
U.S. APP. D.C. 374, 377, 174 F.2D 510, 513.  THIS COURT SAYS IT
DIFFERED "MARKEDLY." 

AN ADMINISTRATIVE BODY MUST FOLLOW CAREFULLY THE SPECIFIC
REQUIREMENTS LAID DOWN BY CONGRESS TO PROTECT THE PUBLIC FROM
ADMINISTRATIVE ABSOLUTISM.  TO INSIST THAT THE STATUTE BE FOLLOWED IS
NOT MERE SEARCH FOR PRECISION.  THE FACT THAT STATE KNEW OF THE AWARD
OF THE ROUTE TO PIEDMONT IN TIME TO APPLY FOR A REHEARING DOES NOT
JUSTIFY THE FAILURE OF THE BOARD TO GIVE NOT ONLY STATE, BUT OTHERS AS
WELL, AN OPPORTUNITY TO CONTEST FAIRLY FOR THE SELECTED ROUTE BEFORE
THE BOARD'S OPINIONS CRYSTALLIZED. 

SINCE THE ERROR OF THE BOARD LAY IN ITS FAILURE TO FOLLOW REQUIRED
PROCEDURE, IT SHOULD BE ENOUGH TO CALL FOR A NEW DETERMINATION IF ON
ADDITIONAL EVIDENCE FROM STATE OR THE PUBLIC, OR ON A DIFFERENT MANNER
OF PRESENTATION, THE BOARD MIGHT HAVE MADE ITS AWARD TO A CARRIER OTHER
THAN PIEDMONT.  THAT IT IS NOT FANCIFUL TO ASSUME IT MIGHT HAVE DONE SO
MAY BE INFERRED FROM THE STATEMENT OF THE BOARD IN ITS FIRST OPINION
THAT EVEN THEN THE CHOICE BETWEEN STATE AND PIEDMONT WAS "A CLOSE AND
DIFFICULT QUESTION."  7 C.A.B. 863, 901.  MOREOVER, WHEN THE LIMITED
REHEARING WAS GRANTED, THE ISSUE, AT LEAST IN THE MIND OF ONE MEMBER OF
THE COMMISSION, MAY HAVE SHIFTED.  AT ONE POINT THIS MEMBER SAID:
"YES, BUT APART FROM ALL THESE LEGALISMS, ISN'T THE REAL ISSUE WHETHER
OR NOT WE MADE A MISTAKE AND PICKED A CARRIER WHO CANNOT RUN THIS
ROUTE?  IF WE REALLY GET DOWN AND TRY TO FIND WHAT IS THE PUBLIC
INTEREST, ISN'T THAT THE REAL POINT?"  THIS IS QUITE DIFFERENT FROM THE
QUESTION OF WHICH CARRIER CAN BEST SERVE THE PUBLIC INTEREST,
CONVENIENCE AND NECESSITY. 

I SEE NO OBJECTION TO A PROCEEDING IN WHICH APPLICATIONS FOR
SEPARATELY DEFINED ROUTES IN A SINGLE LARGE REGION ARE CONSIDERED
TOGETHER.  BUT WITHIN THE FRAMEWORK OF AN "AREA PROCEEDING" THE
PROCEDURE FOR NOTICE REQUIRED BY THE STATUTE SHOULD HAVE BEEN
FOLLOWED.  AFTER DECIDING ON THE ROUTES FOR THE "AREA," THE BOARD
SHOULD HAVE PERMITTED APPLICANTS TO AMEND THEIR APPLICATIONS TO CONFORM
WITH THE SELECTED ROUTES.  SUCH MATERIAL CHANGES AS PIEDMONT WOULD HAVE
HAD TO MAKE WOULD HAVE REQUIRED PUBLIC NOTICE UNDER SEC. 401(C) OF THE
STATUTE, AND THUS THE ATTENTION OF COMPETING AIR LINES AND INTERESTED
MUNICIPALITIES WOULD HAVE BEEN DIRECTED TO THE CONTROLLING QUESTION OF
WHICH AIR LINE WOULD BEST SERVE THE PUBLIC INTEREST ON THE SELECTED
ROUTE.  THIS WOULD HAVE BEEN THE "PROPER DISPATCH" OF BUSINESS THAT THE
STATUTE REQUIRES. 

IT IS TRUE THAT A REMAND MIGHT WELL RESULT IN THE ISSUANCE AGAIN OF A
CERTIFICATE TO PIEDMONT.  THAT AWARD, HOWEVER, WOULD BE ON AN AMENDED
APPLICATION AND ON PROPER NOTICE, AND, AT LEAST, THE PUBLIC AND
PIEDMONT'S POSSIBLE COMPETITORS WOULD HAVE AN OPPORTUNITY TO BE HEARD
AFTER PREPARATION AND IN REGULAR COURSE. 

THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE AFFIRMED. 
..END :





















REGENTS V. CARROLL, 338 U.S. 586 


NO. 83.  ARGUED DECEMBER 9, 1949.  - DECIDED FEBRUARY 6, 1950.  - 78 GA.
APP. 292, 50 S.E.2D 808, AFFIRMED. 


1.  THE FEDERAL COMMUNICATIONS COMMISSION RENEWED A LICENSE FOR A
RADIO STATION ONLY AFTER THE APPLICANT (PETITIONER HERE), PURSUANT TO A
CONDITION PRESCRIBED BY THE COMMISSION AND WITHOUT RESPONDENTS'
CONSENT, REPUDIATED A CONTRACT WITH RESPONDENTS.  THE COMMISSION HAD
DETERMINED THAT, UNLESS THE CONTRACT WERE GIVEN "NO FURTHER EFFECT," A
RENEWAL OF THE LICENSE WOULD NOT BE IN THE PUBLIC INTEREST.  THIS WAS
BASED ON FINDINGS THAT THE CONTRACT JEOPARDIZED PETITIONER'S FINANCIAL
POSITION AND THAT IT ALLOWED RESPONDENTS TO PROFIT FROM A SITUATION
CREATED BY A PREVIOUS CONTRACT WITH PETITIONER WHICH THE COMMISSION HAD
HELD ILLEGAL.  RESPONDENTS WERE NOT PARTIES TO THE PROCEEDINGS BEFORE
THE COMMISSION AND DID NOT SEEK TO INTERVENE; BUT THEY SUBSEQUENTLY
SUED IN A STATE COURT AND OBTAINED A JUDGMENT FOR THE AMOUNT DUE UNDER
THE CONTRACT.  HELD:  THE JUDGMENT OF THE STATE COURT DID NOT
CONTRAVENE THE SUPREMACY CLAUSE OF ARTICLE VI OF THE CONSTITUTION.  PP.
587-603. 

2.  WHETHER PETITIONER WAS ENTITLED TO HAVE ITS DEFENSE OF
IMPOSSIBILITY OF PERFORMANCE SUSTAINED IS A QUESTION OF STATE LAW.  P.
594. 

3.  UNDER THE COMMUNICATIONS ACT OF 1934, THE COMMISSION'S REGULATORY
POWERS CENTER AROUND THE GRANT OR REVOCATION OF LICENSES.  PP. 594
600. 

4.  UNDER SEC. 303(R) OF THE ACT, AUTHORIZING THE COMMISSION TO
PRESCRIBE SUCH "CONDITIONS" AS ARE "NECESSARY TO CARRY OUT THE
PROVISIONS" OF THE ACT, THE COMMISSION MAY IMPOSE CONDITIONS WHICH AN
APPLICANT MUST MEET BEFORE IT WILL BE GRANTED A LICENSE; BUT IMPOSITION
OF SUCH CONDITIONS CANNOT DIRECTLY AFFECT THE APPLICANT'S
RESPONSIBILITIES TO A THIRD PARTY DEALING WITH THE APPLICANT.  P. 600. 

5.  THE COMMISSION COULD INSIST THAT THE APPLICANT CHANGE ITS
SITUATION BEFORE IT GRANTED A LICENSE; BUT IT COULD NOT ACT AS A
BANKRUPTCY COURT TO CHANGE THE SITUATION FOR THE APPLICANT.  PP. 600
602. 

6.  THE ACT DOES NOT AUTHORIZE THE COMMISSION TO DETERMINE THE
VALIDITY OF CONTRACTS BETWEEN LICENSEES AND OTHERS.  P. 602. 

7.  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT RESPONDENTS
HAD KNOWLEDGE OF THE COMMISSION'S ACTION IN DENYING A LICENSE UNLESS
THE CONTRACT WERE GIVEN "NO EFFECT" AND THEY MADE NO EFFORT TO
INTERVENE IN THE PROCEEDINGS BEFORE THE COMMISSION.  PP. 602-603. 

REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA V. CARROLL ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF GEORGIA. 

NOTWITHSTANDING AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION (11
F.C.C. 71) RENEWING PETITIONER'S LICENSE FOR A RADIO STATION ON
CONDITION THAT PETITIONER REPUDIATE A CONTRACT WITH RESPONDENTS, A
GEORGIA COURT AWARDED RESPONDENTS A JUDGMENT FOR THE AMOUNT DUE UNDER
THE CONTRACT.  THE COURT OF APPEALS OF GEORGIA AFFIRMED.  78 GA. APP.
292, 50 S.E.2D 808.  THE SUPREME COURT OF GEORGIA DENIED CERTIORARI. 
78 GA. APP. 898.  THIS COURT GRANTED CERTIORARI.  338 U.S. 846. 
AFFIRMED, P. 603. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL COMMUNICATIONS COMMISSION RENEWED A RADIO LICENSE ONLY
AFTER THE APPLICANT, THE BOARD OF REGENTS, CARRIED OUT A REQUIRED
REPUDIATION OF A CONTRACT WITH OTHER PERSONS, RESPONDENTS HERE.  THE
COMMISSION HAD DETERMINED THAT UNLESS THE CONTRACT WERE GIVEN "NO
FURTHER EFFECT" A RENEWAL OF THE LICENSE WOULD NOT BE IN THE PUBLIC
INTEREST.  THIS WAS BASED ON FINDINGS THAT THE CONTRACT SERIOUSLY
JEOPARDIZED THE APPLICANT'S FINANCIAL POSITION AND THAT IT ALLOWED THE
OTHER PERSONS TO PROFIT FROM A SITUATION CREATED BY A PREVIOUS CONTRACT
WITH THE APPLICANT THAT THE COMMISSION HAD HELD ILLEGAL.  MAY A STATE
NOW ENFORCE THE REPUDIATED CONTRACT AGAINST THE APPLICANT ALTHOUGH THIS
WOULD HAVE THE PRACTICAL EFFECT OF NULLIFYING THE REPUDIATION REQUIRED
BY THE COMMISSION?  THAT IS THE FEDERAL QUESTION PRESENTED IN THIS
PROCEEDING. 

THE QUESTION ARISES IN THIS WAY.  THE GEORGIA SCHOOL OF TECHNOLOGY
RECEIVED RADIO STATION WGST IN 1923 AS A GIFT.  PETITIONER  FN1
OPERATED THE STATION UNTIL JANUARY 1930, WHEN IT MADE A CONTRACT WITH
THE SOUTHERN BROADCASTING COMPANY FOR THE OPERATION OF THE STATION. 
THE CONTRACT WAS TO RUN FOR A TEN-YEAR PERIOD, AND THE COMPANY WAS TO
RECEIVE ALL THE EARNINGS OF THE STATION EXCEPT A PERCENTAGE OF THE
GROSS RECEIPTS.  THIS PERCENTAGE, WHICH VARIED UP TO 10%, WAS TO BE
PAID REGENTS.  SOUTHERN BROADCASTING STATIONS, INC., OF WHICH
RESPONDENTS ARE THE FORMER STOCKHOLDERS, SUCCEEDED TO THE RIGHTS OF THE
COMPANY.  THE CONTRACT WAS EXTENDED FOR A PERIOD TO END JANUARY 6,
1950.  ON EXECUTION BOTH THE ORIGINAL CONTRACT AND THE EXTENSION WERE
FILED WITH THE COMMISSION.  10 F.C.C. 110, 114. 

VARIOUS RENEWALS OF PETITIONER'S LICENSE WERE MADE DURING THIS
PERIOD, BUT WHEN PETITIONER APPLIED FOR A RENEWAL IN 1940, THE FEDERAL
COMMUNICATIONS COMMISSION ORDERED A HEARING TO DETERMINE WHETHER THE
CONTRACT ARRANGEMENT CONSTITUTED A VIOLATION OF THE FEDERAL
COMMUNICATIONS ACT AND WHETHER RENEWAL OF THE LICENSE TO PETITIONER
WOULD SERVE THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY.  SOUTHERN
WAS PERMITTED TO INTERVENE IN THE PROCEEDING. 

THE COMMISSION FOUND THAT ALTHOUGH THE CONTRACT PROVIDED THAT ITS
EXECUTION SHOULD NOT RELEASE THE LICENSEE FROM ITS RIGHT AND DUTY TO
MAINTAIN GENERAL CONTROL OVER THE STATION, ACTUALLY PETITIONER HAD
EXERCISED ONLY NOMINAL AUTHORITY.  THE CONTRACT ITSELF STIPULATED THAT
SOUTHERN SHOULD ARRANGE THE PROGRAMS AND ATTEND TO ALL PROGRAM
DETAILS.  IN THE OPERATIONS UNDER THE CONTRACT SOUTHERN HAD PURCHASED
ADDITIONAL EQUIPMENT AND APPARATUS WITHOUT CONSULTING WITH PETITIONER,
AND SINCE 1930 NOTHING HAD BEEN SPENT BY PETITIONER FOR PURCHASE OR
MAINTENANCE OF THE EQUIPMENT.  SOUTHERN HAD CONTRACTED IN ITS OWN NAME
WITH BUYERS OF BROADCASTING TIME AND FOR NETWORK SERVICE. 

FROM THESE FACTS THE COMMISSION DETERMINED THAT SOUTHERN'S OPERATION
OF PETITIONER'S STATION VIOLATED THE COMMISSION'S RULE THAT A LICENSEE
MUST BE RESPONSIBLE FOR THE CONTROL AND OPERATION OF THE STATION, AND
THAT A LICENSEE MAY NOT TRANSFER TO ANY PERSON ITS RESPONSIBILITY AS
LICENSEE EXCEPT WITH THE COMMISSION'S WRITTEN CONSENT.  IT ALSO HELD
THAT THE COMMUNICATIONS ACT OF 1934 HAD BEEN VIOLATED.  FN2 

THE COMMISSION ISSUED PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW ON MARCH 23, 1943.  THIS DECISION REFUSED THE APPLICATION FOR
RENEWAL OF THE LICENSE.  IT SAID, HOWEVER, THAT "THE COMMISSION WILL
CONSIDER THE ISSUANCE OF A RENEWAL OF THE LICENSE TO GEORGIA SCHOOL OF
TECHNOLOGY PROVIDED THE COMMISSION IS GIVEN ASSURANCE THAT THE
APPLICANT IS PREPARED TO AND WILL IN FACT ASSUME AND DISCHARGE THE FULL
RESPONSIBILITIES OF A LICENSEE."  10 F.C.C. AT 121.  IT PERMITTED
TEMPORARY CONTINUED OPERATION.  THE PROPOSAL WAS ADOPTED BY THE
COMMISSION MAY 8, 1943.  NO APPEAL WAS TAKEN BY PETITIONER OR
RESPONDENTS FROM THIS ORDER.  SEE 47 U.S.C. SEC. 402. 

IN ORDER TO OBVIATE THE COMMISSION'S OBJECTION TO SOUTHERN'S
OPERATION OF THE STATION, PETITIONER ON APRIL 15, 1943, ENTERED INTO
THE CONTRACT HERE IN ISSUE.  UNDER IT PETITIONER PURCHASED FROM
RESPONDENTS ALL THE SHARES OF STOCK OF SOUTHERN, AND, AS THE
CONSIDERATION, AGREED TO PAY EACH MONTH A SUM EQUAL TO 15% OF THE NET
BILLINGS  FN3  OF THE STATION UNTIL JANUARY 6, 1950.  PETITIONER
PROCEEDED TO LIQUIDATE SOUTHERN AND TO TRANSFER THE ASSETS, CONSISTING
OF STATION EQUIPMENT, BROADCASTING CONTRACTS AND SUNDRIES, TO ITSELF IN
TRUST FOR THE GEORGIA SCHOOL OF TECHNOLOGY.  SINCE JULY 9, 1943,
PETITIONER HAS ITSELF MANAGED, DIRECTED AND CONTROLLED THE AFFAIRS OF
THE STATION. 

ON MAY 23, 1943, PETITIONER FILED ANOTHER APPLICATION FOR RENEWAL OF
ITS LICENSE.  WHILE RESPONDENTS HAD ACTUAL KNOWLEDGE OF THIS SECOND
PROCEEDING, THEY WERE NEVER PARTIES TO IT BY INTERVENTION OR
OTHERWISE.  AFTER HEARINGS, THE COMMISSION HELD THAT THE PUBLIC
INTEREST, CONVENIENCE OR NECESSITY WOULD NOT BE SERVED BY A GRANT OF
THE APPLICATION.  ESTIMATING THAT UNDER THE NEW CONTRACT PETITIONER
WOULD BE PAYING OUT 70% OF THE NET EARNINGS OF THE STATION, IT FOUND
THAT PETITIONER'S FINANCIAL ABILITY TO CONDUCT THE STATION IN THE
PUBLIC INTEREST WOULD BE JEOPARDIZED.  IT WAS CONCERNED ESPECIALLY
BECAUSE IT THOUGHT THAT THE USE OF SO MUCH OF THE STATION INCOME FOR
THE CONTRACT OBLIGATIONS WOULD LESSEN THE STATION'S ABILITY TO ENTER
THE FIELDS OF FM AND TELEVISION.  THE COMMISSION ALSO FOUND THAT THE
CONTRACT REPRESENTED AN EFFORT TO GIVE FURTHER EFFECT TO THE EARLIER
MANAGERIAL ARRANGEMENTS, WHICH IT HAD HELD VIOLATIVE OF THE ACT AND ITS
REGULATIONS.  IT THOUGHT THAT THE AGREED PRICE FOR THE STOCK -
ESTIMATED AT OVER $300,000 - WAS EXCESSIVE BECAUSE THE EQUIPMENT HAD
ONLY AN ESTIMATED VALUE OF $50,000.  SOUTHERN'S TITLE TO THAT WAS
QUESTIONABLE, AND SOUTHERN HAD NO "LEGAL INTEREST" IN THE OPERATION OF
THE STATION.  WHILE THE COMMISSION DID NOT UNDERTAKE TO PASS UPON THE
VALIDITY OF THE STOCK PURCHASE CONTRACT AS A MATTER OF CONTRACT LAW, IT
CONCLUDED (11 F.C.C. 71, 76): 

"A GRANT OF THE RENEWAL APPLICATION UNDER CIRCUMSTANCES WHERE A PARTY
TO AN ARRANGEMENT FOUND BY THE COMMISSION TO BE IN CONTRAVENTION OF LAW
WOULD CONTINUE TO PROFIT FROM SUCH ARRANGEMENT WOULD NOT BE IN THE
PUBLIC INTEREST SINCE IT WOULD, IN EFFECT, CONDONE SUCH ILLEGALITY AND
THWART THE COMMISSION'S EFFORTS TO ENFORCE THE REQUIREMENTS OF THE
ACT." 

THE COMMISSION ON SEPTEMBER 19, 1945, AGAIN DENIED THE APPLICATION,
BUT IT ALLOWED THE PETITIONER TO CONTINUE OPERATIONS AND TO MAKE A NEW
APPLICATION, PROVIDED IT SHOULD AFFIRMATIVELY SHOW "THAT NO FURTHER
EFFECT IS GIVEN TO THE AGREEMENTS" BETWEEN PETITIONER AND RESPONDENTS. 
ONE OF THESE AGREEMENTS IS THE STOCK PURCHASE CONTRACT INVOLVED IN THIS
PRESENT LITIGATION. 

THEREUPON, THE REGENTS ON OCTOBER 11, 1945, ADOPTED A RESOLUTION
REPUDIATING THE STOCK PURCHASE CONTRACT, AND ADDED A COPY OF THE
RESOLUTION TO ITS PENDING APPLICATION FOR RENEWAL OF ITS LICENSE.  FN4
BY A STATEMENT ATTACHED TO ITS APPLICATION, THE REGENTS INFORMED THE
COMMISSION THAT RESPONDENTS HAD BEEN NOTIFIED OF THE RESOLUTION AND
ANNOUNCED THAT NO SETTLEMENT WOULD BE MADE WITH RESPONDENTS WITHOUT
COMMISSION APPROVAL.  FN5  RESPONDENTS DO NOT DENY NOTICE OF THE
REPUDIATION.  ON MARCH 7, 1946, THE COMMISSION ISSUED TO PETITIONER THE
REQUESTED LICENSE, AND HAS SINCE RENEWED IT FOR THE PERIOD ENDING MAY
1, 1950.  THUS PETITIONER HAS BEEN ABLE TO OPERATE ITS STATION WITHOUT
INTERRUPTION THROUGHOUT THE YEARS. 

UNTIL THE REPUDIATION, THE AGREED PAYMENTS HAD BEEN MADE UNDER THE
CONTRACT.  AFTER THE NOTICE TO RESPONDENTS PETITIONER MADE NO FURTHER
PAYMENTS, NOR DID IT AT ANY TIME, SO FAR AS THE RECORD INDICATES, MAKE
ANY EFFORT OR OFFER TO RETURN TO RESPONDENTS THE PROPERTY AND THE
INTANGIBLE ASSETS ACQUIRED THROUGH THE CONTRACT.  THE REGENTS CANNOT
NOW RESTORE THE PARTIES TO THEIR FORMER POSITION.  THE PROCEEDING ON
REVIEW WAS BROUGHT BY THE RESPONDENTS FOR AN ACCOUNTING ON THE CONTRACT
IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA, IN JUNE, 1947, FOR THE
SUMS ACCRUING FROM AUGUST, 1945. 

PETITIONER DEFENDED THE ACTION ON THE GROUND THAT TO PERMIT RECOVERY
WOULD BE AN INTERFERENCE WITH THE COMMISSION'S POWER OVER
BROADCASTING.  IT ALSO CONTENDED THAT THE COMMISSION'S REQUIREMENT OF
DISAFFIRMANCE MADE THE PURCHASE CONTRACT IMPOSSIBLE OF PERFORMANCE. 
FN6  THE CASE WAS SUBMITTED BY STIPULATION AND DOCUMENTARY EVIDENCE,
AND THERE WAS NO CONFLICT AS TO THE FACTS.  THE TRIAL COURT ENTERED A
JUDGMENT FOR THE AMOUNTS DUE UNDER THE CONTRACT THROUGH AUGUST, 1947,
SOME $145,000.  THE COURT HELD THAT "THE FEDERAL COMMUNICATIONS
COMMISSION WAS WITHOUT JURISDICTION TO NULLIFY, CHANGE OR ANYWISE
MODIFY THE DUTIES AND OBLIGATIONS OF THE PARTIES TO THE CONTRACT OF
APRIL 15, 1943."  IT ALSO DECIDED THAT THE COMMISSION ORDER REQUIRING
DISAFFIRMANCE OF THE PURCHASE CONTRACT "DOES NOT CONSTITUTE A VALID
DEFENSE OR BAR AS A MATTER OF FACT OR LAW TO THE RIGHT OF THE
PLAINTIFFS TO ENFORCE THE PROVISIONS OF THE CONTRACT OF APRIL 15, 1943,
ON THE GROUND THAT SAID ORDER HAS RENDERED PERFORMANCE ON THE PART OF
THE DEFENDANT BOARD OF REGENTS IMPOSSIBLE." 

THE COURT OF APPEALS OF GEORGIA ACCEPTED THE TRIAL COURT'S
DETERMINATIONS AND AFFIRMED.  FN7 SINCE AN IMPORTANT QUESTION OF THE
RELATION OF FEDERAL ADMINISTRATIVE POWER TO STATE JUDICIAL POWER WAS
INVOLVED, WE GRANTED CERTIORARI.  338 U.S. 846. 

WE MAY SUMMARILY DISPOSE OF THE DEFENSE OF IMPOSSIBILITY OF
PERFORMANCE.  IT IS A MATTER OF STATE LAW.  IT WAS A DEFENSE MADE IN A
STATE COURT TO A CONTRACT ENTERED INTO UNDER THE LAW OF GEORGIA.  SINCE
PETITIONER ACTUALLY WAS AN OPERATING LICENSEE UP TO THE ENTRY OF THE
JUDGMENT, THE STATE COURT THOUGHT PETITIONER REMAINED LIABLE UNDER THE
CONTRACT. 

WHATEVER POWER THE FEDERAL COMMUNICATIONS COMMISSION HAD TO AFFECT
THE RIGHTS OF THE PARTIES UNDER THESE CONTRACTS RESTS ON THE
COMMUNICATIONS ACT OF 1934 AND ITS AMENDMENTS.  THE SECTIONS PERTINENT
TO THE DETERMINATION OF THIS CASE APPEAR IN THE MARGIN.  FN8 

TO LAY BARE THE CONTROLLING ISSUE IN THIS CASE, WE CAN REMOVE SEVERAL
MATTERS FROM DISCUSSION AS NOT SIGNIFICANT TO OUR DECISION.  THERE IS
NO CHALLENGE TO THE COMMISSION'S RULING THAT SOUTHERN'S OPERATION OF
THE STATION VIOLATED SEC. 310(B) AND THE REGULATIONS IN THAT IT
CONSTITUTED A TRANSFER OF THE LICENSEE'S RESPONSIBILITIES WITHOUT
CONSENT OF THE COMMISSION.  FN9  WE ASSUME ITS SOUNDNESS.  SIMILARLY WE
ACCEPT THE RULING THAT THE PAYMENTS CONTEMPLATED UNDER THE STOCK
PURCHASE CONTRACT MADE THE PETITIONER FINANCIALLY UNACCEPTABLE AS A
LICENSEE,  FN10  AND WE ASSUME THE VALIDITY OF THE COMMISSION'S
CONCLUSION THAT PETITIONER MIGHT BE DENIED A LICENSE BECAUSE THE PRICE
PROMISED RESPONDENTS UNDER THE STOCK PURCHASE CONTRACT PERMITTED THEM
TO PROFIT FROM THEIR PRIOR INVALID ARRANGEMENT N11.  THUS OUR INQUIRY
IS NARROWED TO THE POINT OF WHETHER IN THE LIGHT OF THE SUPREMACY
CLAUSE OF THE CONSTITUTION A STATE MAY ENTER A JUDGMENT THAT GRANTS
RESPONDENTS A RECOVERY ON THE VERY STOCK PURCHASE CONTRACT THAT
JUSTIFIED THE COMMISSION'S REFUSAL OF A LICENSE.  FN12 

OUR FORMER DECISIONS INTERPRETATIVE OF THE COMMUNICATIONS ACT FURNISH
A BASIS FOR EXAMINING THIS QUESTION.  AS AN ADMINISTRATIVE BODY, THE
COMMISSION MUST FIND ITS POWERS WITHIN THE COMPASS OF THE AUTHORITY
GIVEN IT BY CONGRESS.  FN13  WHEN TO ASSERT ITS UNDOUBTED POWER TO
REGULATE RADIO CHANNELS,  FN14  CONGRESS SET UP THE FEDERAL
COMMUNICATIONS COMMISSION, IT PRESCRIBED LICENSING AS THE METHOD OF
REGULATION.  47 U.S.C. SEC. 307.  IN ITS ACTION ON LICENSES, THE
COMMISSION IS TO BE GUIDED BY WHAT WE HAVE CALLED THE "TOUCHSTONE" OF
"PUBLIC CONVENIENCE, INTEREST, OR NECESSITY."  FN15  SINCE THE LICENSEE
RECEIVES NO RIGHTS IN THE CHANNEL BEYOND THE TERM OF ITS LICENSE, THE
COMMISSION MAY GRANT A LICENSE TO A COMPETITOR EVEN THOUGH IT RESULTS
IN AN ECONOMIC INJURY TO AN EXISTING STATION.  FN16  ALTHOUGH THE
LICENSEE'S BUSINESS AS SUCH IS NOT REGULATED, THE QUALIFICATIONS OF THE
LICENSEE AND THE CHARACTER OF ITS BROADCASTS MAY BE WEIGHED IN
DETERMINING WHETHER OR NOT TO GRANT A LICENSE.  FEDERAL COMMUNICATIONS
COMMISSION V. SANDERS RADIO STATION, 309 U.S. 470, 475; NATIONAL
BROADCASTING CO., INC. V. UNITED STATES, 319 U.S. 190, 218, 227.  THESE
CASES MAKE CLEAR THAT THE COMMISSION'S REGULATORY POWERS CENTER AROUND
THE GRANT OF LICENSES.  THEY CONTAIN NO REFERENCE TO ANY SANCTIONS,
OTHER THAN REFUSAL OR REVOCATION OF A LICENSE, THAT THE COMMISSION MAY
APPLY TO ENFORCE ITS DECISIONS.  FN17 

RADIO STATION WOW, INC. V. JOHNSON, 326 U.S. 120, WHICH REQUIRED AN
EXAMINATION INTO THE RESPECTIVE POWERS OF STATE COURTS AND THE
COMMUNICATIONS COMMISSION, IS PARTICULARLY APPLICABLE TO THIS CASE. 
THE OWNER OF LICENSED STATION WOW HAD LEASED THE FACILITIES FOR A TERM
OF YEARS AND HAD SECURED APPROVAL FROM THE COMMISSION OF A TRANSFER OF
THE LICENSE TO THE LESSEE.  THE STATE COURTS SET ASIDE THE LEASE FOR
FRAUD AND ORDERED A RETRANSFER OF THE PHYSICAL FACILITIES TO THE
LESSOR.  THE ESSENTIAL HOLDING, SO FAR AS IT RELATES TO OUR PRESENT
PROBLEM, LIES IN THESE WORDS AT P. 131:    "WE HAVE NO DOUBT OF THE
POWER OF THE NEBRASKA COURT TO ADJUDICATE, AND CONCLUSIVELY, THE CLAIM
OF FRAUD IN THE TRANSFER OF THE STATION BY THE SOCIETY TO WOW AND UPON
FINDING FRAUD TO DIRECT A RECONVEYANCE OF THE LEASE TO THE SOCIETY. 
AND THIS, EVEN THOUGH THE PROPERTY CONSISTS OF LICENSED FACILITIES AND
THE SOCIETY CHOOSES NOT TO APPLY FOR RETRANSFER OF THE RADIO LICENSE TO
IT, OR THE COMMISSION, UPON SUCH APPLICATION, REFUSES THE RETRANSFER. 
THE RESULT MAY WELL BE THE TERMINATION OF A BROADCASTING STATION." 

IN THE WOW CASE, THE COMMISSION HAD NOT PASSED UPON THE QUESTION OF
FRAUD, BUT IF AT THE TIME OF THE STATE ADJUDICATION THERE HAD BEEN A
FINDING BY THE COMMISSION THAT THE FACTS DID NOT JUSTIFY A REFUSAL TO
TRANSFER THE LICENSE, THIS FINDING WOULD NOT HAVE AFFECTED THE RIGHT OF
THE STATE COURT TO DETERMINE INDEPENDENTLY THE ISSUE OF FRAUD. 

WE NOW COME TO CONSIDER THE ARGUMENTS PUT FORWARD TO SHOW THAT UNDER
THE ACT THE COMMISSION'S ORDERS ARE EFFECTIVE TO BAR RECOVERY.  ONE
SUGGESTION IS THAT PETITIONER'S POSITION HAS A SPECIFIC STATUTORY BASIS
IN SEC. 303(R), WHICH PERMITS THE COMMISSION TO PRESCRIBE SUCH
"CONDITIONS" AS ARE "NECESSARY TO CARRY OUT THE PROVISIONS" OF THE
ACT.  WE DO NOT THINK THE SUGGESTION IS SOUND.  CONGRESS HAS ENABLED
THE COMMISSION TO REGULATE THE USE OF BROADCASTING CHANNELS THROUGH A
LICENSING POWER.  IT IS IN CONNECTION WITH THIS POWER THAT SEC. 303(R)
IS TO BE INTERPRETED.  THE COMMISSION MAY IMPOSE ON AN APPLICANT
CONDITIONS WHICH IT MUST MEET BEFORE IT WILL BE GRANTED A LICENSE, BUT
THE IMPOSITION OF THE CONDITIONS CANNOT DIRECTLY AFFECT THE APPLICANT'S
RESPONSIBILITIES TO A THIRD PARTY DEALING WITH THE APPLICANT. 

PETITIONER ALSO URGES THAT A STATE COURT JUDGMENT SHOULD NOT BE
ALLOWED TO THWART THE COMMISSION'S EFFORTS TO ENFORCE THE REQUIREMENTS
OF THE ACT.  FN18  SINCE THE COMMUNICATIONS ACT DOES NOT SPECIFICALLY
EMPOWER THE COMMISSION TO ADJUDICATE THE CONTRACTUAL LIABILITY OF A
LICENSEE FOR ITS CONTRACTS OR TO DECLARE A LICENSEE'S CONTRACTS
UNENFORCEABLE IN THE COURTS, FOR THIS DEFENSE PETITIONER MUST DEPEND
UPON GENERAL IMPLICATIONS FROM THE ACT. 

THE ARGUMENT IS THAT IF BEFORE IT ISSUES A LICENSE THE COMMISSION
CANNOT BE ASSURED THAT IT HAS SECURED AN EFFECTIVE CANCELLATION OF A
CONTRACT LIKE THE ONE IN SUIT, IT MUST CHOOSE BETWEEN TWO UNDESIRABLE
ALTERNATIVES.  IT MUST EITHER CONDONE THE VIOLATION OF ITS RULES FOR
OPERATION AND FORSAKE ITS DUTY TO INSURE THAT ONLY THE FINANCIALLY ABLE
MAY BE LICENSEES, OR IT MUST DEPRIVE THE PUBLIC OF THE ADVANTAGE OF A
STATION UNDER THE MANAGEMENT OF THE BOARD OF REGENTS. 

THE RENEWAL APPLICATION INDEED PRESENTED THE COMMISSION WITH A HARD
CHOICE.  FOR TEN YEARS THE OPERATING ARRANGEMENT HAD CONTINUED. 
SUDDENLY, AFTER THE STATION HAD BEEN BROUGHT TO A FAVORABLE PROFIT
POSITION UNDER SOUTHERN'S MANAGEMENT, THE COMMISSION BECAME CONSCIOUS
OF THE VIOLATION OF LAW INVOLVED IN THE MANAGEMENT CONTRACT.  WHEN THE
MANAGEMENT CONTRACT WAS SUPERSEDED BY THE PURCHASE CONTRACT, THE
COMMISSION INSISTED THAT PETITIONER COULD NOT BE A SUITABLE LICENSEE
UNLESS THE LATTER CONTRACT WERE GIVEN "NO EFFECT."  FOR SOME REASON,
WHICH HAS NOT BEEN EXPLAINED TO US, THE COMMISSION WAS SATISFIED THAT
THE CONTRACT WAS OF "NO EFFECT" WHEN THE PETITIONER MADE A UNILATERAL
DISAFFIRMANCE, AND IT DID NOT THINK IT NECESSARY TO REQUIRE THAT
SOUTHERN AGREE TO THE CANCELLATION BEFORE A LICENSE WOULD ISSUE. 

THIS CHOICE OF METHOD LAY WITHIN THE COMMISSION'S POWER. 
CONSIDERATIONS UNKNOWN TO US MAY HAVE DICTATED THIS PROCEDURE.  BEFORE
ISSUING A LICENSE IN SIMILAR CASES, HOWEVER, THE COMMISSION HAS
SUCCESSFULLY OBTAINED FROM BOTH PARTIES TO A CONTRACT CLEAR AND
UNEQUIVOCAL ASSENT TO ITS CANCELLATION.  FN19  INDEED, THE COMMISSION
MIGHT REFUSE TO ISSUE A LICENSE UNTIL THE APPLICANT HAS DEMONSTRATED
THAT IT HAS BEEN FREED BY THE STATE COURTS FROM THE OBNOXIOUS
CONTRACT.  FN20 

BUT IF THE COMMISSION WAS PLACED IN A DILEMMA FROM WHICH IT HAD NO
ESCAPE, THAT DILEMMA WAS THE INEVITABLE RESULT OF THE STATUTORY SCHEME
OF LICENSING.  THE COMMISSION ITSELF HAS INDICATED TO CONGRESS THAT IT
IS EMBARRASSED BY ITS INABILITY TO ISSUE CEASE AND DESIST ORDERS, THAT
IT HAS AT ITS DISPOSAL ONLY THE CUMBERSOME WEAPONS OF CRIMINAL
PENALTIES AND LICENSE REFUSAL AND REVOCATION.  FN21  BUT, SO FAR AS WE
ARE AWARE, THE COMMISSION REQUEST DID NOT GO BEYOND ASKING FOR POWER TO
ISSUE A CEASE AND DESIST ORDER AGAINST A LICENSEE.  NO POWER WAS SOUGHT
AGAINST A THIRD PARTY.  UNDER THE PRESENT STATUTE, THE COMMISSION COULD
MAKE A CHOICE ONLY WITHIN THE SCOPE OF ITS LICENSING POWER, I.E., TO
GRANT OR DENY THE LICENSE ON THE BASIS OF THE SITUATION OF THE
APPLICANT.  IT COULD INSIST THAT THE APPLICANT CHANGE ITS SITUATION
BEFORE IT GRANTED A LICENSE, BUT IT COULD NOT ACT AS A BANKRUPTCY COURT
TO CHANGE THAT SITUATION FOR THE APPLICANT.  THE PUBLIC INTEREST, AFTER
ALL, IS IN THE EFFECTIVE USE OF THE AVAILABLE CHANNELS, AND ONLY TO
THAT EXTENT IN WHAT PARTICULAR APPLICANT RECEIVES A LICENSE.  FN22  THE
COMMISSION HAS SAID FREQUENTLY THAT CONTROVERSIES AS TO RIGHTS BETWEEN
LICENSEES AND OTHERS ARE OUTSIDE THE AMBIT OF ITS POWERS.  FN23 WE DO
NOT READ THE COMMUNICATIONS ACT TO GIVE AUTHORITY TO THE COMMISSION TO
DETERMINE THE VALIDITY OF CONTRACTS BETWEEN LICENSEES AND OTHERS. 

FINALLY, WE FIND IRRELEVANT THE FACT THAT RESPONDENTS HAD KNOWLEDGE
OF THE COMMISSION PROCEEDING DENYING A LICENSE UNLESS THE STOCK
PURCHASE CONTRACT WERE GIVEN "NO EFFECT."  EVEN IF WE SHOULD ASSUME
THAT RESPONDENTS HAD THE RIGHT TO INTERVENE IN THAT PROCEEDING AND TO
APPEAL FROM THE COMMISSION'S DECISION, THEIR FAILURE TO DO SO COULD NOT
DESTROY THEIR RIGHTS UNDER THE CONTRACT.  IT COULD AFFECT THEM NO MORE
THAN TO PREVENT THEM FROM CHALLENGING IN ANY COURT THE COMMISSION'S
DECISION THAT A LICENSE MIGHT BE DENIED REGENTS FOR THE REASONS GIVEN
BY THE COMMISSION.  FN24  WE HAVE ASSUMED THE CORRECTNESS OF THE
REFUSAL TO GRANT A LICENSE, BUT WE HOLD THAT THE COMMISSION'S ORDER
CANNOT DIRECTLY AFFECT THE VALIDITY OF THE CONTRACT.  IT IS A MOST
EXTRAORDINARY RULE THAT WOULD REQUIRE RESPONDENTS TO INTERVENE UPON
PAIN OF SUFFERING A BINDING JUDGMENT WHICH THE COMMISSION COULD NOT
HAVE LAWFULLY IMPOSED UPON THEM HAD THEY BEEN ACTUAL PARTIES. 
AFFIRMED. 

FN1  AS NOTHING OF IMPORTANCE IN THIS CASE TURNS UPON THE DETAILS OF
TITLE, WE HEREAFTER REFER TO THE PETITIONER AS PETITIONER OR REGENTS. 
WE TREAT IT AS OWNER, APPLICANT FOR LICENSE OR LICENSEE.  CONTRACTS FOR
THE OPERATION OF WGST WERE MADE BY THE BOARD OF TRUSTEES OF THE GEORGIA
SCHOOL OF TECHNOLOGY UNTIL BY STATE LEGISLATION MANAGEMENT OF THE
SCHOOL AFFAIRS PASSED FROM THAT BOARD TO THE BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA.  THEREAFTER THE REGENTS HANDLED THE
STATION FOR THE SCHOOL.  THE APPLICATIONS FOR LICENSE HAVE BEEN MADE
AND THE LICENSES ISSUED IN THE NAME OF THE GEORGIA SCHOOL OF
TECHNOLOGY. 

FN2  10 F.C.C. 110, 120.  THE COMMISSION BASED ITS RULING
PARTICULARLY ON ITS INTERPRETATION OF THE RULE IN F.C.C. RULES &
REGULATIONS SEC. 1.364(PART I, REVISED TO FEB. 1, 1945), AND ON SECS.
301, 307, 308, 309 AND 310 OF THE COMMUNICATIONS ACT (47 U.S.C.).  IT
ALSO CALLED ATTENTION TO THE APPLICATION FORM FOR RENEWALS, ONE OF THE
QUESTIONS ON WHICH, NO. 11C, ASKED:  "DOES APPLICANT HAVE ABSOLUTE
CONTROL OF STATION, BOTH AS TO PHYSICAL OPERATION AND PROGRAMS
BROADCAST?" 

FN3  I.E., THE SALES OF BROADCASTING TIME LESS COMMISSIONS OR
DISBURSEMENTS TO OTHERS. 

FN4  "RESOLVED, BY THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
GEORGIA THAT THE RULING OF THE FEDERAL COMMUNICATIONS COMMISSION HAVING
MADE THE CONTRACT WITH THE STOCKHOLDERS OF SOUTHERN BROADCASTING
STATIONS, INC. LEGALLY IMPOSSIBLE OF PERFORMANCE, THE BOARD HEREBY
APPROVES THE ACTION OF ITS WGST RADIO COMMITTEE IN DIRECTING THAT SAID
CONTRACT BE NOT FURTHER COMPLIED WITH.  THIS ACTION IS TAKEN WITHOUT
PREJUDICE TO A FAIR ADJUSTMENT OR SETTLEMENT OF WHATEVER RIGHTS THE
SAID STOCKHOLDERS MAY HAVE, SUBJECT TO THE APPROVAL OR CONSENT OF THE
FEDERAL COMMUNICATIONS COMMISSION." 

FN5  "THE AGREEMENT EFFECTIVE APRIL 15, 1943, WAS CANCELLED BY THE
REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA BY RESOLUTION ADOPTED AT A
MEETING OF THE BOARD OF REGENTS HELD ON OCTOBER 11, 1945.  A TRUE AND
CORRECT COPY OF THE RESOLUTION IS HERETO ATTACHED AS EXHIBIT J. THE
OTHER PARTIES TO THE AGREEMENT HAVE BEEN NOTIFIED ORALLY OF THE
CANCELLATION OF THE AGREEMENT AND NO PAYMENTS UNDER THE AGREEMENT HAVE
BEEN MADE SINCE THE ISSUANCE OF THE PROPOSED DECISION OF THE COMMISSION
IN DOCKET NO. 6534 ON SEPTEMBER 20, 1945.  THE BOARD OF REGENTS WILL
NOT UNDERTAKE TO NEGOTIATE ANY ADJUSTMENT OR SETTLEMENT WITH THE OTHER
PARTIES TO THE AGREEMENT UNLESS AND UNTIL SAID PARTIES FIRST OBTAIN THE
APPROVAL OR CONSENT OF THE FEDERAL COMMUNICATIONS COMMISSION TO
NEGOTIATE A SETTLEMENT OF WHATEVER RIGHTS SAID PARTIES MAY HAVE UNDER
THE AGREEMENT." 

FN6  THERE ARE FURTHER ALLEGATIONS OF DEFENSE IN THE ANSWER THAT MAY
BE SUMMARIZED AS A STATEMENT THAT RESPONDENTS HAD ACTUAL KNOWLEDGE OF
THE FILING OF THE RENEWAL APPLICATION THAT RESULTED IN ISSUANCE OF THE
LICENSE; THAT RESPONDENTS HAD ACTUAL KNOWLEDGE OF THE HEARINGS, OF THE
PROPOSED DECISION AND OF THE FINAL ORDER OF THE COMMISSION.  THE
PETITIONER FURTHER ALLEGED THAT RESPONDENTS KNEW THE OPERATION OF THE
STATION DEPENDED UPON THE GRANT OF A LICENSE. 

WE CONSIDER THESE ALLEGATIONS AS TO NOTICE ONLY AS THEY BEAR UPON THE
EFFECT OF THE BOARD ORDER ON PETITIONER'S RESPONSIBILITY UNDER THE
CONTRACT.  PETITIONER DID NOT PLEAD THEM AS AN ESTOPPEL TO RECOVERY. 
NEITHER OF THE GEORGIA COURTS TREATED THE ALLEGATIONS AS A BASIS OF
ESTOPPEL UNDER THE LAW OF GEORGIA.  THIS WOULD BE A MATTER OF STATE
LAW. 

FN7  78 GA. APP. 292, 50 S.E.2D 808(CERT.  BY THE SUP. CT. OF GEORGIA
DENIED, 78 GA. APP. 898). 

FN8  47 U.S.C.: 

SEC. 151.  "FOR THE PURPOSE OF REGULATING INTERSTATE AND FOREIGN
COMMERCE IN COMMUNICATION BY WIRE AND RADIO SO AS TO MAKE (IT)
AVAILABLE, SO FAR AS POSSIBLE, TO ALL THE PEOPLE OF THE UNITED STATES
...  THERE IS CREATED A COMMISSION TO BE KNOWN AS THE 'FEDERAL
COMMUNICATIONS COMMISSION' ...  " 

SEC. 154.  "(I)  THE COMMISSION MAY PERFORM ANY AND ALL ACTS, MAKE
SUCH RULES AND REGULATIONS, AND ISSUE SUCH ORDERS, NOT INCONSISTENT
WITH THIS CHAPTER, AS MAY BE NECESSARY IN THE EXECUTION OF ITS
FUNCTIONS." 

SEC. 301.  "IT IS THE PURPOSE OF THIS CHAPTER, AMONG OTHER THINGS, TO
MAINTAIN THE CONTROL OF THE UNITED STATES OVER ALL THE CHANNELS OF
INTERSTATE AND FOREIGN RADIO TRANSMISSION; AND TO PROVIDE FOR THE USE
OF SUCH CHANNELS, BUT NOT THE OWNERSHIP THEREOF, BY PERSONS FOR LIMITED
PERIODS OF TIME, UNDER LICENSES GRANTED BY FEDERAL AUTHORITY, AND NO
SUCH LICENSE SHALL BE CONSTRUED TO CREATE ANY RIGHT, BEYOND THE TERMS,
CONDITIONS, AND PERIODS OF THE LICENSE.  NO PERSON SHALL USE OR OPERATE
ANY APPARATUS FOR THE TRANSMISSION OF ENERGY OR COMMUNICATIONS OR
SIGNALS BY RADIO  ...  , EXCEPT UNDER AND IN ACCORDANCE WITH THIS
CHAPTER AND WITH A LICENSE IN THAT BEHALF GRANTED UNDER THE PROVISIONS
OF THIS CHAPTER." 

SEC. 303.  "EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER, THE
COMMISSION FROM TIME TO TIME, AS PUBLIC CONVENIENCE, INTEREST, OR
NECESSITY REQUIRES, SHALL - 

     .         .         .  .         . 

"(R)  MAKE SUCH RULES AND REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS
AND CONDITIONS, NOT INCONSISTENT WITH LAW, AS MAY BE NECESSARY TO CARRY
OUT THE PROVISIONS OF THIS CHAPTER,  ...  " 

SEC. 307.  "(A)  THE COMMISSION, IF PUBLIC CONVENIENCE, INTEREST, OR
NECESSITY WILL BE SERVED THEREBY, SUBJECT TO THE LIMITATIONS OF THIS
CHAPTER, SHALL GRANT TO ANY APPLICANT THEREFOR A STATION LICENSE
PROVIDED FOR BY THIS CHAPTER." 

SEC. 307.  "(D)  ...  BUT ACTION OF THE COMMISSION WITH REFERENCE TO
THE GRANTING OF SUCH APPLICATION FOR THE RENEWAL OF A LICENSE SHALL BE
LIMITED TO AND GOVERNED BY THE SAME CONSIDERATIONS AND PRACTICE WHICH
AFFECT THE GRANTING OF ORIGINAL APPLICATIONS." 

SEC. 308.  "(B)  ALL SUCH APPLICATIONS SHALL SET FORTH SUCH FACTS AS
THE COMMISSION BY REGULATION MAY PRESCRIBE AS TO THE CITIZENSHIP,
CHARACTER, AND FINANCIAL, TECHNICAL, AND OTHER QUALIFICATIONS OF THE
APPLICANT TO OPERATE THE STATION; ...  " 

SEC. 309.  "(A)  IF UPON EXAMINATION OF ANY APPLICATION FOR A STATION
LICENSE OR FOR THE RENEWAL OR MODIFICATION OF A STATION LICENSE THE
COMMISSION SHALL DETERMINE THAT PUBLIC INTEREST, CONVENIENCE, OR
NECESSITY WOULD BE SERVED BY THE GRANTING THEREOF, IT SHALL AUTHORIZE
THE ISSUANCE, RENEWAL, OR MODIFICATION THEREOF IN ACCORDANCE WITH SAID
FINDING.  ...  " 

SEC. 310.  "(B)  THE STATION LICENSE REQUIRED, THE FREQUENCIES
AUTHORIZED TO BE USED BY THE LICENSEE, AND THE RIGHTS THEREIN GRANTED
SHALL NOT BE TRANSFERRED, ASSIGNED, OR IN ANY MANNER EITHER VOLUNTARILY
OR INVOLUNTARILY DISPOSED OF, OR INDIRECTLY BY TRANSFER OF CONTROL OF
ANY CORPORATION HOLDING SUCH LICENSE, TO ANY PERSON, UNLESS THE
COMMISSION SHALL, AFTER SECURING FULL INFORMATION, DECIDE THAT SAID
TRANSFER IS IN THE PUBLIC INTEREST, AND SHALL GIVE ITS CONSENT IN
WRITING." 

SEC. 312.  "(A)  ANY STATION LICENSE MAY BE REVOKED FOR FALSE
STATEMENTS EITHER IN THE APPLICATION OR IN THE STATEMENT OF FACT WHICH
MAY BE REQUIRED BY SECTION 308 OF THIS TITLE, OR BECAUSE OF CONDITIONS
REVEALED BY SUCH STATEMENTS OF FACT AS MAY BE REQUIRED FROM TIME TO
TIME WHICH WOULD WARRANT THE COMMISSION IN REFUSING TO GRANT A LICENSE
ON AN ORIGINAL APPLICATION, OR FOR FAILURE TO OPERATE SUBSTANTIALLY AS
SET FORTH IN THE LICENSE, OR FOR VIOLATION OF OR FAILURE TO OBSERVE ANY
OF THE RESTRICTIONS AND CONDITIONS OF THIS CHAPTER OR OF ANY REGULATION
OF THE COMMISSION AUTHORIZED BY THIS CHAPTER OR BY A TREATY RATIFIED BY
THE UNITED STATES: ...  "    SEC. 405.  "AFTER A DECISION, ORDER, OR
REQUIREMENT HAS BEEN MADE BY THE COMMISSION IN ANY PROCEEDING, ANY
PARTY THERETO MAY AT ANY TIME MAKE APPLICATION FOR REHEARING OF THE
SAME, OR ANY MATTER DETERMINED THEREIN, AND IT SHALL BE LAWFUL FOR THE
COMMISSION IN ITS DISCRETION TO GRANT SUCH A REHEARING IF SUFFICIENT
REASON THEREFOR BE MADE TO APPEAR:  ...  "    FN9  10 F.C.C. 110, 120;
11 F.C.C. 71, 76. 

FN10  11 F.C.C. 71 AT 75; SEE SEC. 308(B), NOTE 8.  SEE FEDERAL
COMMUNICATIONS COMMISSION V. SANDERS RADIO STATION, 309 U.S. 470, 475. 

FN11  11 F.C.C. 71, 76. 

FN12  THE GEORGIA COURT SIMILARLY CONCEIVED THE ISSUE: 

"THE FEDERAL COMMUNICATIONS COMMISSION IS AN ADMINISTRATIVE AGENCY OF
THE FEDERAL GOVERNMENT, EMPOWERED TO ENFORCE THE PROVISIONS OF THE
COMMUNICATIONS ACT OF 1934(47 U.S.C.A., SEC. 151, ET SEQ.), AND HAS THE
POWER AND AUTHORITY TO GRANT OR REFUSE LICENSES TO RADIO-BROADCASTING
STATIONS, WITH A VIEW TO SUBSERVING THE PUBLIC INTEREST SO THAT THE
PEOPLE SHALL HAVE THE BEST POSSIBLE RADIO SERVICE; BUT NOTHING IN THE
POWER GRANTED TO THE COMMISSION, OR IN SAID COMMUNICATIONS ACT OF
CONGRESS, GIVES TO THE COMMISSION THE POWER AND AUTHORITY TO REGULATE
THE PRIVATE CONTRACTS AND BUSINESS OF THOSE OPERATING RADIO
BROADCASTING STATIONS, WHERE THE SAME IS NOT NECESSARY IN THE
PROTECTION OF THE PUBLIC INTEREST, AND WHERE SUCH CONTRACTS DO NOT
AFFECT THE INTERSTATE TRANSACTIONS OF THE RADIO STATION."  78 GA. APP.
292, 50 S.E.2D 808, 809. 

"THE FEDERAL COMMUNICATIONS COMMISSION HAS POWER IN THE 'PUBLIC
INTEREST' UNDER SAID ACT TO REFUSE LICENSES TO STATIONS WHICH ENGAGE IN
PRACTICES CONTRARY TO THE PUBLIC INTEREST, CONVENIENCE, OR NECESSITY. 
IN EACH CASE THAT COMES BEFORE IT, THE COMMISSION MUST EXERCISE
ULTIMATE JUDGMENT WHETHER THE GRANT OF A LICENSE IN THE PARTICULAR
INSTANCE WOULD SERVE THE PUBLIC INTEREST, CONVENIENCE OR NECESSITY. 
... 

"THE FEDERAL COMMUNICATIONS COMMISSION HAS THE POWER AND AUTHORITY IN
GRANTING A LICENSE TO A RADIO STATION TO SEE THAT THE PUBLIC INTEREST
AND CONVENIENCE ARE SUBSERVED THEREBY, AND AN IMPORTANT ELEMENT OF
PUBLIC INTEREST AND CONVENIENCE AFFECTING THE ISSUE OF A RADIO
BROADCASTING LICENSE IS THE ABILITY OF THE LICENSEE TO RENDER THE BEST
PRACTICABLE SERVICE TO THE COMMUNITY REACHED BY HIS BROADCASTS.  THE
COMMISSION MUST SEE TO IT THAT ALL APPLICANTS FOR RADIO-STATION
LICENSES HAVE THE NECESSARY TECHNICAL ABILITY TO BROADCAST PROGRAMS,
AND THAT THE STATIONS ARE PROPERLY CONSTRUCTED AND PROPERLY AND
ADEQUATELY MANNED AND DO NOT INTERFERE WITH OTHER STATIONS, AND THAT
ALL LICENSEES ARE RESPONSIBLE, MORALLY AND FINANCIALLY.  ...  "  78 GA.
APP. 298-99, 50 S.E.2D 812, 813. 

"  ...  MATTERS OF PRIVATE CONCERN, AND CONTRACTS AFFECTING SUCH
RIGHTS, WHICH DO NOT HAVE AS THEIR SUBJECT-MATTER THE RIGHTS CONFERRED
BY A LICENSE, OR DO NOT SUBSTANTIALLY AFFECT SUCH RIGHTS, ARE NOT
WITHIN THE SCOPE OF THE COMMISSION'S POWER TO REGULATE AND CONTROL IN
THE PUBLIC INTEREST BROADCASTING BY RADIO STATIONS AND LICENSES TO SUCH
STATIONS.  ...  "  78 GA. APP. 300, 50 S.E.2D 813. 

THERE IS SOME LANGUAGE IN THE OPINION (78 GA. APP. 292, 302, 50
S.E.2D 808, 814) FROM WHICH IT MIGHT BE INFERRED THAT THE COURT OF
APPEALS THOUGHT THAT IT COULD REVIEW THE CONCLUSION OF THE COMMISSION
THAT THE ISSUANCE OF THE LICENSE WITH THE CONTRACT IN EFFECT WOULD
ADVERSELY AFFECT THE PUBLIC INTEREST.  IN VIEW OF THE STATEMENTS ABOVE
AND THE GENERAL TENOR OF THE OPINION, WE ARE SATISFIED THAT THE COURT
OF APPEALS DID NOT CLAIM A POWER TO DECIDE THE CONTRACT'S EFFECT UPON
AN APPLICANT'S ABILITY TO MEET THE REQUIREMENTS NECESSARY FOR A LICENSE
FROM THE COMMISSION.  THE COURT OF APPEALS BOTTOMED ITS DECISION ON THE
LACK OF POWER IN THE COMMISSION TO AFFECT LEGAL RESPONSIBILITY UNDER
THIS CONTRACT. 

FN13  AMERICAN SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94,
110; HELVERING V. SABINE TRANS.  CO., 318 U.S. 306, 311; ADDISON V.
HOLLY HILL CO., 322 U.S. 607, 617-18; ASHBACKER RADIO CORP. V. F.C.C.,
326 U.S. 327, 333, DISSENT, 335.  CF. SEC. 9(A) ADMINISTRATIVE
PROCEDURE ACT, 60 STAT. 242: 

"SEC. 9.  IN THE EXERCISE OF ANY POWER OR AUTHORITY - 

"(A)  IN GENERAL.  - NO SANCTION SHALL BE IMPOSED OR SUBSTANTIVE RULE
OR ORDER BE ISSUED EXCEPT WITHIN JURISDICTION DELEGATED TO THE AGENCY
AND AS AUTHORIZED BY LAW." 

FN14  FEDERAL RADIO COMMISSION V. NELSON BROS. CO., 289 U.S. 266,
279; NATIONAL BROADCASTING CO., INC. V. UNITED STATES, 319 U.S. 190,
210. 

FN15  FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO.,
309 U.S. 134, 138; NATIONAL BROADCASTING CO., INC. V. UNITED STATES,
319 U.S. 190, 216.  47 U.S.C. SEC. 307(A). 

FN16  FEDERAL COMMUNICATIONS COMMISSION V. SANDERS RADIO STATION, 309
U.S. 470, 473, 475, 476. 

FN17  THE COMMUNICATIONS ACT HAS NO PROVISION SUCH AS APPEARS IN THE
NATIONAL LABOR RELATIONS ACT, SEC. 10(C), 49 STAT. 454, AUTHORIZING THE
LABOR BOARD TO REQUIRE AFFIRMATIVE ACTION FROM THOSE WHO VIOLATE THE
LABOR ACT.  YET, EVEN IN CASES UNDER THAT ACT, THIRD PERSONS WERE LEFT
FREE TO ASSERT RIGHTS UNDER THEIR CONTRACTS.  NATIONAL LICORICE CO. V.
LABOR BOARD, 309 U.S. 350, 365. 

FN18  11 F.C.C. 71, 76. 

FN19  MATTER OF WESTINGHOUSE ELECTRIC AND MANUFACTURING CO., 8 F.C.C.
195; IN RE CORNELL UNIVERSITY (WHCU), DOCKET NO. 5820(ORDER, OCT. 15,
1940). 

FN20  SEE MATTER OF THE CITY OF CAMDEN (WCAM), 4 PIKE AND FISCHER
RADIO REGULATIONS 344, 384. 

FN21  HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON S. 1333, 80TH CONG., 1ST SESS. 14,
51. 

FN22  NATIONAL BROADCASTING CO., INC. V. UNITED STATES, SUPRA, AT 215
16, 218. 

FN23  SEE IN RE PETITION OF FANNIE I. LEESE ET AL., 5 F.C.C. 364;
MATTER OF HEARST RADIO, INC., 7 F.C.C. 292, 295; IN RE ASSIGNMENT OF
LICENSE OF STATION WMCA, 10 F.C.C. 241, 242. 

FN24  SEE RED RIVER BROADCASTING CO. V. FEDERAL COMMUNICATIONS
COMMISSION, 69 APP. D.C. 1, 98 F.2D 282. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :





















SECRETARY OF AGRI. V. CENT. ROIG CO., 338 U.S. 604 


ARGUED OCTOBER 17, 1949.  - DECIDED FEBRUARY 6, 1950.  - 84 U.S. APP.
D.C. 161, 171 F.2D 1016, REVERSED. 


1.  SECTION 205(A) OF THE SUGAR ACT OF 1948 AUTHORIZES THE SECRETARY
OF AGRICULTURE TO MAKE ALLOTMENTS OF SUGAR QUOTAS WHICH MAY BE MARKETED
IN THE UNITED STATES, AND REQUIRES THAT HE DO SO "IN SUCH MANNER AND IN
SUCH AMOUNTS AS TO PROVIDE A FAIR, EFFICIENT, AND EQUITABLE
DISTRIBUTION" OF THE QUOTA, "BY TAKING INTO CONSIDERATION" (1)
PROCESSINGS TO WHICH PROPORTIONATE SHARES PERTAINED, (2) PAST
MARKETINGS, AND (3) ABILITY TO MARKET.  IN ISSUING PUERTO RICO SUGAR
ORDER NO. 18, WHICH ALLOTTED AMONG THE VARIOUS PUERTO RICAN REFINERIES
THE 1948 QUOTA OF PUERTO RICAN REFINED SUGAR WHICH COULD BE MARKETED ON
THE MAINLAND, THE SECRETARY TOOK AS THE MEASURE OF "PAST MARKETINGS"
THE AVERAGE OF THE HIGHEST FIVE YEARS OF MARKETINGS DURING THE 1935
1941 PERIOD; TOOK AS THE MEASURE OF "ABILITY TO MARKET" THE HIGHEST
MARKETINGS OF ANY YEAR DURING THE 1935-1947 PERIOD; GAVE EQUAL WEIGHT
TO THESE FACTORS; AND CONSIDERED, BUT CONCLUDED TO GIVE NO WEIGHT TO,
PROCESSINGS TO WHICH PROPORTIONATE SHARES PERTAINED.  HELD:  HE DID NOT
ACT ARBITRARILY OR EXCEED THE AUTHORITY GRANTED HIM BY THE ACT.  PP.
605-614. 

2.  THE SUGAR ACT OF 1948, AS APPLIED IN PUERTO RICO SUGAR ORDER NO.
18, IS A VALID EXERCISE OF THE POWER OF CONGRESS UNDER THE COMMERCE
CLAUSE AND DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  PP. 614-619. 

3.  IN VIEW OF THE CONCLUSION REACHED ON THE CONSTITUTIONAL ISSUES,
WHICH HAD TO BE MET APART FROM ANY JURISDICTIONAL QUESTION, IT IS
UNNECESSARY IN THIS CASE TO DECIDE THE QUESTION OF PUERTO RICO'S
STANDING TO SUE.  PP. 619-620. 

SECRETARY OF AGRICULTURE V. CENTRAL ROIG REFINING CO. ET AL. 

NO. 27.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.* 

*TOGETHER WITH NO. 30, PORTO RICAN AMERICAN SUGAR REFINERY, INC. V.
CENTRAL ROIG REFINING CO. ET AL., AND NO. 32, PUERTO RICO V. SECRETARY
OF AGRICULTURE ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

ON APPEALS FROM AN ORDER ISSUED BY THE SECRETARY OF AGRICULTURE UNDER
THE SUGAR ACT OF 1948, THE COURT OF APPEALS REVERSED THE ORDER AS NOT
AUTHORIZED BY THE ACT.  84 U.S. APP. D.C. 161, 171 F.2D 1016.  THIS
COURT GRANTED CERTIORARI.  336 U.S. 959.  NOS. 27 AND 30 REVERSED; NO.
32 DISMISSED, P. 620. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE THREE CASES BRING BEFORE US THE VALIDITY OF AN ORDER OF THE
SECRETARY OF AGRICULTURE, ISSUED BY HIM ON THE BASIS OF THE SUGAR ACT
OF 1948.  IT IS CLAIMED THAT THE SECRETARY DISOBEYED THE REQUIREMENTS
OF THAT ACT.  IF IT BE FOUND THAT THE SECRETARY BROUGHT HIMSELF WITHIN
THE ACT, THE POWER OF CONGRESS TO GIVE HIM THE AUTHORITY HE EXERCISED
IS CHALLENGED.  BY A SERIES OF ENACTMENTS CONGRESS ADDRESSED ITSELF TO
WHAT IT FOUND TO BE SERIOUS EVILS RESULTING FROM AN UNCONTROLLED SUGAR
MARKET.  THE CENTRAL AIM OF THIS LEGISLATION WAS TO RATIONALIZE THE
MISCHIEVOUS FLUCTUATIONS OF A FREE SUGAR MARKET BY THE FAMILIAR DEVICE
OF A QUOTA SYSTEM.  THE JONES-COSTIGAN ACT OF 1934, 48 STAT. 670, THE
SUGAR ACT OF 1937, 50 STAT. 903, AND THE SUGAR ACT OF 1948, 61 STAT.
922, 7 U.S.C. (SUPP. II, 1949) SECS. 1100-60. 

THE VOLUME OF SUGAR MOVING TO THE CONTINENTAL UNITED STATES MARKET
WAS CONTROLLED TO SECURE A HARMONIOUS RELATION BETWEEN SUPPLY AND
DEMAND.  FN1  TO ADAPT MEANS TO THE PURPOSE OF THE SUGAR LEGISLATION,
THE ACT OF 1948 DEFINES FIVE DOMESTIC SUGAR-PRODUCING AREAS:  TWO IN
THE CONTINENTAL UNITED STATES AND ONE EACH IN HAWAII, PUERTO RICO AND
THE VIRGIN ISLANDS.  TO EACH AREA IS ALLOTTED AN ANNUAL QUOTA OF SUGAR,
SPECIFYING THE MAXIMUM NUMBER OF TONS WHICH MAY BE MARKETED ON THE
MAINLAND FROM THAT AREA.  SEC. 202(A).  A QUOTA IS LIKEWISE ASSIGNED TO
THE PHILIPPINES.  SEC. 202(B).  THE BALANCE OF THE NEEDS OF CONSUMERS
IN THE CONTINENTAL UNITED STATES, TO BE DETERMINED EACH YEAR BY THE
SECRETARY, SEC. 201, IS MET BY IMPORTATION FROM FOREIGN COUNTRIES,
PREDOMINANTLY FROM CUBA, OF THE REQUISITE AMOUNT OF SUGAR.  SEC.
202(C). 

THE QUOTAS THUS ESTABLISHED APPLY TO SUGAR IN ANY FORM, RAW OR
REFINED.  IN ADDITION, SEC. 207 OF THE ACT ESTABLISHES FIXED LIMITS ON
THE TONNAGE OF "DIRECT-CONSUMPTION" OR REFINED SUGAR  FN2 WHICH MAY BE
MARKETED ANNUALLY ON THE MAINLAND FROM THE OFFSHORE AREAS AS PART OF
THEIR TOTAL SUGAR QUOTAS.  BUT MAINLAND REFINERS ARE NOT SUBJECT TO
QUOTA LIMITATIONS UPON THE MARKETING OF REFINED SUGAR. 

THE PUERTO RICAN QUOTA FOR "DIRECT-CONSUMPTION" SUGAR IS 126,033
TONS.  THIS FIGURE HAD ITS GENESIS IN THE JONES-COSTIGAN ACT OF 1934,
WHICH PROVIDED THAT THE QUOTA FOR EACH OFFSHORE AREA WAS TO BE THE
LARGEST AMOUNT SHIPPED TO THE MAINLAND IN ANY ONE OF THE THREE
PRECEDING YEARS.  48 STAT. 670, 672-73.  IN THE CASE OF PUERTO RICO
THIS WAS COMPUTED BY THE SECRETARY AT 126,033 TONS.  GENERAL SUGAR
QUOTA REGULATIONS, SER.  2, REV. 1, P. 4, AUGUST 17, 1935.  BY THE
SUGAR ACTS OF 1937 AND 1948, CONGRESS EMBEDDED THIS AMOUNT IN
LEGISLATION.  ALL THE DETAILS FOR THE CONTROL OF A COMMODITY LIKE SUGAR
COULD NOT, OF COURSE, BE LEGISLATIVELY PREDETERMINED.  ADMINISTRATIVE
POWERS ARE AN ESSENTIAL PART OF SUCH A REGULATORY SCHEME.  THE POWERS
CONFERRED BY SEC. 205(A) UPON THE SECRETARY OF AGRICULTURE RAISE SOME
OF THE SERIOUS ISSUES IN THIS LITIGATION.  BY THAT SECTION CONGRESS
AUTHORIZED THE SECRETARY TO ALLOT THE REFINED SUGAR QUOTA AS WELL AS
THE INCLUSIVE ALLOWANCE OF A PARTICULAR AREA AMONG THOSE MARKETING THE
SUGAR ON THE MAINLAND FROM THAT AREA.  FN3  THE SECTION PROVIDES THAT
"ALLOTMENTS SHALL BE MADE IN SUCH MANNER AND IN SUCH AMOUNTS AS TO
PROVIDE A FAIR, EFFICIENT, AND EQUITABLE DISTRIBUTION OF SUCH QUOTA OR
PRORATION THEREOF, BY TAKING INTO CONSIDERATION" THREE FACTORS:  (1)
"PROCESSINGS OF SUGAR  ...  TO WHICH PROPORTIONATE SHARES  ...
PERTAINED"; FN4  (2) PAST MARKETINGS; AND (3) ABILITY TO MARKET THE
AMOUNT ALLOTTED. 

ON JANUARY 21, 1948, THE SECRETARY ISSUED PUERTO RICO SUGAR ORDER NO.
18, 13 FED. REG. 310, ALLOTTING THE 1948 PUERTO RICAN REFINED SUGAR
QUOTA AMONG THE VARIOUS REFINERIES OF THE ISLAND.  HAVING SATISFIED
HIMSELF OF THE NEED FOR AN ALLOTMENT, THE SECRETARY, IN CONFORMITY WITH
THE PROCEDURAL REQUIREMENTS OF SEC. 205(A), APPORTIONED THE QUOTA AMONG
THE INDIVIDUAL REFINERS, SETTING FORTH IN APPROPRIATE FINDINGS THE
MANNER IN WHICH HE APPLIED THE THREE STATUTORY STANDARDS FOR
ALLOTMENT. 

AS TO "PAST MARKETINGS" HE FOUND THAT THE PROPER MEASURE WAS THE
AVERAGE OF THE HIGHEST FIVE YEARS OF MARKETINGS DURING THE SEVEN-YEAR
PERIOD OF 1935-1941.  WHILE RECOGNIZING THAT ORDINARILY THE MOST RECENT
PERIOD OF MARKETINGS FURNISHED THE APPROPRIATE DATA, HE CONCLUDED THAT
THE PERIOD 1942-1947 WAS UNREPRESENTATIVE IN THAT THE WAR NEEDS MADE
THOSE YEARS ABNORMAL AND NOT A FAIR BASIS FOR PURPOSES OF THE ECONOMIC
STABILIZATION WHICH WAS THE AIM OF THE 1948 ACT.  SHORTAGES AS TO
TRANSPORTATION, STORAGE AND MATERIALS, CAUSED BY THE WAR, LED TO
SPECIAL GOVERNMENT CONTROL.  THESE CIRCUMSTANCES RESULTED IN HARDSHIPS
OR ADVANTAGES IN VARYING DEGREES TO DIFFERENT REFINERS, QUITE UNRELATED
TO A FAIR SYSTEM OF QUOTAS FOR THE POST-WAR PERIOD. 

LIKEWISE AS TO "THE ABILITY  ...  TO MARKET," THE SECRETARY
RECOGNIZED THAT MARKETINGS DURING A RECENT PERIOD ORDINARILY FURNISHED
THE BEST MEASURE.  BUT AGAIN HE FOUND THAT THE DERANGEMENTS OF THE WAR
YEARS SERVED TO MAKE THAT MEASURE ABNORMAL.  HE THEREFORE CONCLUDED
THAT A FAIRER GUIDE TO HIS JUDGMENT CAME FROM THE HIGHEST MARKETINGS OF
ANY YEAR DURING THE 1935-1947 PERIOD, USING, HOWEVER, PRESENT PLANT
CAPACITY AS A CORRECTIVE. 

THE SECRETARY DULY CONSIDERED "THE PROCESSINGS OF SUGAR" TO WHICH
PROPORTIONATE SHARES PERTAINED, BUT CONCLUDED THAT THIS FACTOR COULD
NOT FAIRLY BE APPLIED.  THIS WAS SO BECAUSE IT REFERRED TO PROCESSINGS
OF RAW SUGAR FROM SUGAR CANE, WHEREAS THE THREE LARGEST PUERTO RICAN
REFINING CONCERNS RESTRICTED THEMSELVES TO REFINING RAW SUGAR AFTER IT
HAD ALREADY BEEN PROCESSED.  HE FELT BOUND, THEREFORE, TO GIVE NO
WEIGHT TO THIS FACTOR IN THE SUM HE FINALLY STRUCK, AND GAVE EQUAL
WEIGHT TO PAST MARKETINGS AND ABILITY TO MARKET. 

AVAILING THEMSELVES OF SEC. 205(B), RESPONDENTS, CENTRAL ROIG
REFINING COMPANY AND WESTERN SUGAR REFINING COMPANY, TWO OF THE THREE
LARGEST REFINERS IN PUERTO RICO, APPEALED FROM THE SECRETARY'S ORDER TO
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.  THEY CHARGED THE
SECRETARY WITH DISREGARD OF THE STANDARDS WHICH CONGRESS IMPOSED BY
SEC. 205(A) FOR HIS GUIDANCE IN MAKING ALLOTMENT OF QUOTAS; THEY
CHALLENGED THE VALIDITY OF THE ACT ITSELF UNDER THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT.  PORTO RICAN AMERICAN SUGAR REFINERY, INC.,
PETITIONER IN NO. 30, THE LARGEST OF THE PUERTO RICAN REFINERS,
INTERVENED TO DEFEND THE SECRETARY'S ORDER AGAINST THE STATUTORY
ATTACK.  THE GOVERNMENT OF PUERTO RICO, PETITIONER IN NO. 32,
INTERVENED TO URGE THE UNCONSTITUTIONALITY OF THE STATUTE, WHILE THE
AMERICAN SUGAR REFINING COMPANY AND OTHER MAINLAND REFINERS INTERVENED
TO MEET THIS ATTACK.  BEING OF OPINION THAT THE SECRETARY'S ORDER WAS
NOT AUTHORIZED BY THE ACT, THE COURT OF APPEALS REVERSED IT.  84 U.S.
APP. D.C. 161, 171 F.2D 1016.  SINCE THE ORDER FAILED ON STATUTORY
GROUNDS, A MAJORITY OF THAT COURT DID NOT DEEM IT PROPER TO DECIDE THE
CONSTITUTIONAL QUESTION.  BECAUSE OF THE OBVIOUS IMPORTANCE OF THE
DECISION BELOW IN THE ADMINISTRATION OF THE SUGAR ACT WE GRANTED
CERTIORARI.  336 U.S. 959. 

I. IN MAKING QUOTA ALLOTMENTS THE SECRETARY OF AGRICULTURE MUST OF
COURSE KEEP SCRUPULOUSLY WITHIN THE LIMITS SET BY THE SUGAR ACT OF
1948.  IN DEVISING THE FRAMEWORK OF CONTROL CONGRESS FIXED THE FLAT
QUOTAS FOR THE SUGAR-PRODUCING AREAS.  CONGRESS COULD NOT ITSELF, AS A
PRACTICAL MATTER, ALLOT THE AREA QUOTAS AMONG INDIVIDUAL MARKETERS. 
THE DETAILS ON WHICH FAIR JUDGMENT MUST BE BASED ARE TOO SHIFTING AND
JUDGMENT UPON THEM CALLS FOR TOO SPECIALIZED UNDERSTANDING TO MAKE
DIRECT CONGRESSIONAL DETERMINATION FEASIBLE.  ALMOST INESCAPABLY THE
FUNCTION OF ALLOTTING THE AREA QUOTAS AMONG INDIVIDUAL MARKETERS
BECOMES AN ADMINISTRATIVE FUNCTION ENTRUSTED TO THE MEMBER OF THE
CABINET CHARGED WITH OVERSIGHT OF THE AGRICULTURAL ECONOMY OF THE
NATION.  HE COULD NOT BE LEFT AT LARGE AND YET HE COULD NOT BE RIGIDLY
BOUNDED.  EITHER EXTREME WOULD DEFEAT THE CONTROL SYSTEM.  THEY COULD
BE AVOIDED ONLY BY LAYING DOWN STANDARDS OF SUCH BREADTH AS INEVITABLY
TO GIVE THE SECRETARY LEEWAY FOR HIS EXPERT JUDGMENT.  ITS EXERCISE
PRESUMES A JUDGMENT AT ONCE COMPREHENSIVE AND CONSCIENTIOUS. 
ACCORDINGLY, CONGRESS INSTRUCTED THE SECRETARY TO MAKE ALLOTMENTS "IN
SUCH MANNER AND IN SUCH AMOUNTS AS TO PROVIDE A FAIR, EFFICIENT, AND
EQUITABLE DISTRIBUTION" OF THE QUOTA. 

IN SHORT, CONGRESS GAVE THE SECRETARY DISCRETION COMMENSURATE WITH
THE LEGISLATIVE GOAL.  ALLOCATION OF QUOTAS TO INDIVIDUAL MARKETERS WAS
DEEMED AN ESSENTIAL PART OF THE REGULATORY SCHEME.  THE COMPLEXITY OF
PROBLEMS AFFECTING RAW AND REFINED SUGAR IN WIDELY SEPARATED AND
ECONOMICALLY DISPARATE AREAS, ACCENTUATED BY THE INSTABILITY OF THE
DIFFERENTIATING FACTORS, MUST HAVE PERSUADED CONGRESS OF THE NEED FOR
CONTINUOUS DETAILED ADMINISTRATIVE SUPERVISION.  FN5  IN ANY EVENT,
SUCH IS THE PLAIN PURPORT OF THE LEGISLATION. 

BY WAY OF GUIDING THE SECRETARY IN FORMULATING A FAIR DISTRIBUTION OF
INDIVIDUAL ALLOTMENTS, CONGRESS DIRECTED HIM TO EXERCISE HIS DISCRETION
"BY TAKING INTO CONSIDERATION" THREE FACTORS: PAST MARKETINGS, ABILITY
TO MARKET, AND PROCESSINGS TO WHICH PROPORTIONATE SHARES PERTAINED. 
PLAINLY THESE ARE NOT MECHANICAL OR SELF-DEFINING STANDARDS.  THEY IN
TURN IMPLY WIDE AREAS OF JUDGMENT AND THEREFORE OF DISCRETION.  THE
FACT THAT THE SECRETARY'S JUDGMENT IS FINALLY EXPRESSED ARITHMETICALLY
GIVES AN ILLUSORY DEFINITENESS TO THE PROCESS OF REACHING IT.
MOREOVER, HE IS UNDER A DUTY MERELY TO TAKE "INTO CONSIDERATION" THE
PARTICULARIZED FACTORS.  THE SECRETARY CANNOT BE HEEDLESS OF THESE
FACTORS IN THE SENSE, FOR INSTANCE, OF REFUSING TO HEAR RELEVANT
EVIDENCE BEARING ON THEM.  BUT CONGRESS DID NOT THINK IT WAS FEASIBLE
TO BIND THE SECRETARY AS TO THE PART HIS "CONSIDERATION" OF THESE THREE
FACTORS SHOULD PLAY IN HIS FINAL JUDGMENT - WHAT WEIGHT EACH SHOULD BE
GIVEN, OR WHETHER IN A PARTICULAR SITUATION ALL THREE FACTORS MUST PLAY
A QUANTITATIVE SHARE IN HIS COMPUTATION. 

IT WAS EVIDENTLY DEEMED FAIR THAT IN A CONTROLLED MARKET EACH
PRODUCER SHOULD BE PERMITTED TO RETAIN MORE OR LESS THE SHARE OF THE
MARKET WHICH HE HAD ACQUIRED IN THE PAST.  ACCORDINGLY, PAST MARKETINGS
WERE TO BE TAKEN INTO CONSIDERATION IN THE SECRETARY'S ALLOTMENTS.  BUT
THE PAST IS RELEVANT ONLY IF IT FURNISHES A REPRESENTATIVE INDEX OF THE
RELATIVE POSITIONS OF DIFFERENT MARKETERS.  AND THERE IS NO CALCULUS
AVAILABLE FOR DETERMINING WHETHER A BASE PERIOD FOR MEASUREMENT IS
FAIRLY REPRESENTATIVE.  WHETHER CONDITIONS HAVE BEEN SO UNUSUAL AS TO
MAKE A PERIOD UNREPRESENTATIVE IS NOT A MATTER OF COUNTING FIGURES BUT
OF WEIGHING IMPONDERABLES.  IF HE IS TO EXERCISE THE FUNCTION OF
ALLOTTING A LIMITED SUPPLY AMONG AVID CONTENDERS FOR IT, THE SECRETARY
CANNOT ESCAPE THE NECESSITY OF PASSING JUDGMENT ON THEIR RELATIVE
COMPETITIVE POSITIONS.  FOR CONGRESS ANNOUNCED THAT ONE OF THE MAIN
PURPOSES JUSTIFYING THE MAKING OF ALLOTMENTS IS "TO AFFORD ALL
INTERESTED PERSONS AN EQUITABLE OPPORTUNITY TO MARKET SUGAR."  SEC.
205(A). 

IN DIRECTING THE SECRETARY TO TAKE INTO CONSIDERATION ABILITY TO
MARKET, CONGRESS IN EFFECT CHARGED THE SECRETARY WITH MAKING A FORECAST
OF THE MARKETERS' CAPACITY TO PERFORM IN THE IMMEDIATE FUTURE.  SUCH A
FORECAST NO DOUBT DRAWS HEAVILY ON EXPERIENCE, BUT HISTORY NEVER QUITE
REPEATS ITSELF EVEN IN THE VICISSITUDES OF INDUSTRY.  WHETHER ABILITY
TO MARKET IS MOST RATIONALLY MEASURED BY PLANT CAPACITY OR BY PAST
PERFORMANCE, WHETHER, IF THE LATTER, THE BASE PERIOD SHOULD BE A YEAR
AND WHAT YEAR OR A GROUP OF YEARS AND WHAT GROUP - THESE ARE NOT
QUESTIONS TO BE DEALT WITH AS STATISTICAL PROBLEMS.  THEY REQUIRE A
DISINTERESTED, INFORMED JUDGMENT BASED ON CIRCUMSTANCES THEMSELVES
DIFFICULT OF PROPHETIC INTERPRETATION. 

THE PROPER MODE OF ASCERTAINING "PROCESSINGS OF SUGAR  ...  TO WHICH
PROPORTIONATE SHARES  ... PERTAINED" IS NOT HERE IN CONTROVERSY. 
PERHAPS THIS FACTOR TOO IMPLIES CHOICE.  BUT THE QUESTION COMMON TO ALL
THREE STANDARDS IS WHETHER THE SECRETARY MAY CONCLUDE, AFTER DUE
CONSIDERATION, THAT IN THE PARTICULAR SITUATION BEFORE HIM IT IS NOT
ESSENTIAL THAT EACH OF THE THREE FACTORS BE QUANTITATIVELY REFLECTED IN
THE FINAL ALLOTMENT FORMULA.  CONCEDEDLY, SEC. 205(A) EMPOWERS THE
SECRETARY TO ATTRIBUTE DIFFERENT INFLUENCES TO THE THREE FACTORS. 
OBVIOUSLY ONE FACTOR MAY BE MORE INFLUENTIAL THAN ANOTHER IN THE SENSE
OF FURNISHING A BETTER MEANS OF ACHIEVING A "FAIR, EFFICIENT, AND
EQUITABLE DISTRIBUTION."  BUT IT IS NOT CONSONANT WITH REASON TO
AUTHORIZE THE SECRETARY TO FIND IN THE CONTEXT OF THE SITUATION BEFORE
HIM THAT A CRITERION HAS LITTLE VALUE AND IS ENTITLED TO NO MORE THAN
NOMINAL WEIGHT, BUT TO FIND IT UNREASONABLE FOR HIM TO CONCLUDE THAT
THIS FACTOR HAS NO SIGNIFICANCE AND THEREFORE SHOULD NOT BE AT ALL
REFLECTED QUANTITATIVELY.    CONGRESS DID NOT PREDETERMINE THE PERIODS
OF TIME TO WHICH THE STANDARDS SHOULD BE RELATED OR THE RESPECTIVE
WEIGHTS TO BE ACCORDED THEM.  IN THIS RESPECT THE SUGAR-QUOTA SCHEME
DIFFERS FROM THE QUOTAS DESIGNED BY CONGRESS FOR TOBACCO, WHEAT, COTTON
AND RICE, RESPECTIVELY.  SEE SECS. 313(A), 334(A), 344(A) AND 353(A) OF
THE AGRICULTURAL ADJUSTMENT ACT OF 1938, 52 STAT. 47, 53, 57, 61, AS
AMENDED, 7 U.S.C. SECS. 1313(A), 1334(A), 1344(A), 1353(A).  NOR DO THE
BARE WORDS OF SEC. 205(A) CONFINE THE SECRETARY IN THE RESPONSIBLE
EXERCISE OF DISCRETION BEYOND THE LIMITATION INHERENT UPON SUCH
DELEGATED AUTHORITY.  HE IS NOT FREE TO BE CAPRICIOUS, TO ACT WITHOUT
REASON, THAT IS, IN RELATION TO THE ATTAINMENT OF THE OBJECTS DECLARED
BY SEC. 205(A).  THE VERY STANDARDS FOR HIS CONDUCT, THE ATTAINMENT OF
"FAIR, EFFICIENT, AND EQUITABLE DISTRIBUTION" PRECLUDE ABSTRACT OR
DOCTRINAIRE CATEGORIES.  A VARIETY OF PLANS OF ALLOTMENT MAY WELL
CONFORM TO THE STATUTORY STANDARDS.  BUT THE CHOICE AMONG PERMISSIVE
PLANS IS NECESSARILY THE SECRETARY'S; HE IS THE AGENCY ENTRUSTED BY
CONGRESS TO MAKE THE CHOICE. 

THESE CONSIDERATIONS DISPOSE OF THIS PHASE OF THE CASE.  WE WOULD
HAVE TO REPLACE THE SECRETARY'S JUDGMENT WITH OUR OWN TO HOLD THAT ON
THE RECORD BEFORE US HE ACTED ARBITRARILY IN REACHING THE CONVICTION
THAT THE YEARS 1935-1941 FURNISHED A FAIRER MEASURE OF PAST MARKETINGS
THAN THE WAR YEARS 1942-1947.  NOR CAN WE HOLD THAT IT WAS BASELESS FOR
HIM TO DECIDE THAT INCREASED MARKETINGS DURING THE WAR YEARS MAY BE
TAKEN TO MEAN IMPROVED ABILITY TO MARKET BUT DECREASED MARKETINGS DO
NOT JUSTIFY THE OPPOSITE CONCLUSION.  AND IT WAS WITHIN HIS PROVINCE TO
EXCLUDE FROM HIS DETERMINATION THE PROCESSINGS OF SUGAR TO WHICH
PROPORTIONATE SHARES PERTAINED.  IT IS NOT FOR US TO REJECT THE BALANCE
HE STRUCK ON CONSIDERATION OF ALL THE FACTORS UNLESS WE CAN SAY THAT
HIS JUDGMENT IS NOT ONE THAT A FAIR-MINDED TRIBUNAL WITH SPECIALIZED
KNOWLEDGE COULD HAVE REACHED.  THIS WE CANNOT SAY.  WE CONCLUDE,
THEREFORE, THAT IN ISSUING ORDER NO. 18 THE SECRETARY DID NOT EXCEED
THE AUTHORITY GIVEN HIM BY CONGRESS. 

II.  WE MUST THEREFORE FACE THE CHALLENGE TO THE CONSTITUTIONALITY OF
THE ACT OF 1948.  THIS OBJECTION TO THE ORDER IN SUPPORT OF THEIR
JUDGMENT BELOW IS CLEARLY OPEN TO RESPONDENTS IN NOS. 27 AND 30.  THE
GOVERNMENT OF PUERTO RICO LIKEWISE CHALLENGES THE CONSTITUTIONALITY OF
THE ACT.  BUT ITS STATUS IN THIS LITIGATION RAISES A DISTINCT ISSUE,
CONSIDERATION OF WHICH WILL BE POSTPONED FOR THE MOMENT. 

THE SUGAR PROBLEM OF THE COUNTRY IS AN OLD AND OBSTINATE ONE.  FOR
FOURTEEN YEARS CONGRESS GRAPPLED WITH IT THROUGH THE MECHANISM OF
QUOTAS.  THREE ENACTMENTS, CULMINATING IN THE SUGAR ACT OF 1948,
REPRESENTED AN EFFORT TO DEAL WITH WHAT WERE DEEMED TO BE THE HARMFUL
EFFECTS ON INTERSTATE AND FOREIGN COMMERCE OF PROGRESSIVELY DEPRESSED
SUGAR PRICES OF EARLIER YEARS CREATED BY WORLD SURPLUSES, OR, IF ONE
PREFERS IT, BY THE CONDITIONS THAT REFLECTED THE IMBALANCE BETWEEN
PRODUCTION AND CONSUMPTION  FN6.  THE LEGISLATION PRESUPPOSES A FINDING
BY CONGRESS THAT PRODUCERS AND MARKETERS OF SUGAR COULD NOT ADEQUATELY
RESPOND TO MARKET CHANGES MERELY THROUGH THE MECHANISM OF A FREE MARKET
AND THAT THE PUBLIC INTEREST, INSOFAR AS THE COMMERCE CLAUSE MAY BE
DRAWN UPON TO MEET IT, NEEDED CONTROLS TO SUPPLEMENT AND REPLACE THE
HAGGLING OF THE MARKET. 

CONGRESS MIGHT OF COURSE HAVE LIMITED ITS INTERVENTION TO THE RAW
SUGAR MARKET, TRUSTING THAT THEREBY STABILITY IN THE REFINED SUGAR
MARKET WOULD BE PRODUCED.  CONGRESS THOUGHT OTHERWISE; IT EVIDENTLY
FELT THAT COMPETITION AMONG REFINERS FOR A LEGALLY LIMITED SUPPLY OF
RAW SUGAR, IN A PERIOD OF OVEREXPANDED REFINING CAPACITY,  FN7  OUGHT
NOT TO BE LEFT AT LARGE.  IN ANY EVENT, CONGRESS HAD THE CONSTITUTIONAL
RIGHT TO THINK OTHERWISE AND TO BRING THE REFINING OF SUGAR WITHIN ITS
REGULATORY SCHEME.  SEE MULFORD V. SMITH, 307 U.S. 38; UNITED STATES V.
ROCK ROYAL CO-OPERATIVE, INC., 307 U.S. 533; WICKARD V. FILBURN, 317
U.S. 111. 

IT IS A COMMONPLACE THAT REFORMS MAY BRING IN THEIR TRAIN NEW
DIFFICULTIES.  IN ANY SCHEME OF REFORM, THEIR PREVENTION OR MITIGATION
BECOMES A PROPER LEGISLATIVE CONCERN.  WHILE AMELIORATING THE EFFECT OF
DISORDERLY COMPETITION, MARKET CONTROLS GENERATE PROBLEMS OF THEIR OWN,
NOT ENCOUNTERED UNDER A COMPETITIVE SYSTEM.  SUCH NEW PROBLEMS ARE NOT
OUTSIDE THE COMPREHENSIVE SCOPE OF THE GREAT COMMERCE CLAUSE.  NOR DOES
THE COMMERCE CLAUSE IMPOSE REQUIREMENTS OF GEOGRAPHIC UNIFORMITY. 
(COMPARE ART. I, SEC. 8, CL. 1 AND CL. 4.)  CONGRESS MAY DEVISE, AS IT
HAS DONE IN THE SUGAR ACT OF 1948, A NATIONAL POLICY WITH DUE REGARD
FOR THE VARYING AND FLUCTUATING INTERESTS OF DIFFERENT REGIONS.  SEE
E.G., CLARK DISTILLING CO. V. WESTERN MARYLAND R. CO., 242 U.S. 311;
KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299 U.S. 334;
PRUDENTIAL INSURANCE CO. V. BENJAMIN, 328 U.S. 408.  AND SINCE THE ACT
OF 1948 DOES NOT EVEN REMOTELY IMPINGE ON ANY OF THE SPECIFIC
LIMITATIONS UPON THE COMMERCE CLAUSE (ART. I, SEC. 9, CL. 5 AND CL. 6),
WE ARE NOT CONCERNED WITH THE VEXING PROBLEM OF THE APPLICABILITY OF
THESE CLAUSES TO PUERTO RICO.  COMPARE DOWNES V. BIDWELL, 182 U.S. 244;
DOOLEY V. UNITED STATES, 183 U.S. 151; ALASKA V. TROY, 258 U.S. 101;
HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652, 670, N. 5. 

HOWEVER, NOT EVEN RESORT TO THE COMMERCE CLAUSE CAN DEFY THE
STANDARDS OF DUE PROCESS.  WE ASSUME THAT THESE STANDARDS EXTEND TO
REGULATIONS OF COMMERCE THAT ENMESH PUERTO RICO.  SEE UNITED STATES V.
CAROLENE PRODUCTS CO., 304 U.S. 144, 148-51; UNITED STATES V. DARBY,
312 U.S. 100, 125-26; BALZAC V. PORTO RICO, 258 U.S. 298, 313.  THE
SUGAR ACT OF 1948 IS CLAIMED TO OFFEND THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT BECAUSE OF THE ALLEGED DISCRIMINATORY CHARACTER AND THE
OPPRESSIVE EFFECTS OF THE REFINED SUGAR QUOTA ESTABLISHED BY THE ACT. 
IF EVER CLAIMS OF THIS SORT CARRIED PLAUSIBILITY, THEY SEEM TO US
SINGULARLY BELATED IN VIEW OF THE UNFOLDING OF THE COMMERCE CLAUSE. 

THE USE OF QUOTAS ON REFINED SUGAR, LEGISLATIVELY APPORTIONED TO
DIFFERENT GEOGRAPHIC AREAS AND ADMINISTRATIVELY ALLOCATED TO INDIVIDUAL
BENEFICIARIES, IS A DEVICE BASED ON THE AGRICULTURAL ADJUSTMENT ACT OF
1938, 52 STAT. 31, AS AMENDED, 7 U.S.C. SEC. 1281 ET SEQ., AND
SANCTIONED BY THIS COURT IN MULFORD V. SMITH, SUPRA.  THE PROBLEM WHICH
CONFRONTED CONGRESS WAS NOT THE SETTING OF QUOTAS ABSTRACTLY CONSIDERED
BUT SO TO FIX THEIR AMOUNT AS TO ACHIEVE APPROXIMATE JUSTICE IN THE
SHARES ALLOTTED TO EACH AREA AND THE PERSONS WITHIN IT.  TO RECOGNIZE
THE PROBLEM IS TO ACKNOWLEDGE ITS PERPLEXITIES. 

CONGRESS WAS THUS CONFRONTED WITH THE FORMULATION OF POLICY
PECULIARLY WITHIN ITS WIDE SWATH OF DISCRETION.  IT WOULD BE A SINGULAR
INTRUSION OF THE JUDICIARY INTO THE LEGISLATIVE PROCESS TO EXTRAPOLATE
RESTRICTIONS UPON THE FORMULATION OF SUCH AN ECONOMIC POLICY FROM THOSE
DEEPLY ROOTED NOTIONS OF JUSTICE WHICH THE DUE PROCESS CLAUSE
EXPRESSES.  TO FIX QUOTAS ON A STRICT HISTORICAL BASIS IS HARD ON
LATECOMERS INTO THE INDUSTRY OR ON THOSE IN IT WHO DESIRE TO EXPAND. 
ON THE OTHER HAND, TO THE EXTENT THAT NEWCOMERS ARE ALLOWED TO ENTER OR
OLD-TIMERS TO EXPAND THERE MUST EITHER BE AN INCREASE IN SUPPLY OR A
REDUCTION IN THE QUOTAS OF OTHERS.  MANY OTHER FACTORS MUST PLAGUE
THOSE CHARGED WITH THE FORMULATION OF POLICY - THE EXTENT TO WHICH
PROJECTED EXPANSION IS A FUNCTION OF EFFICIENCY OR BECOMES A DEPRESSANT
OF WAGE STANDARDS; THE WISE DIRECTION OF CAPITAL INTO INVESTMENTS AND
THE ECONOMIC WASTE INCIDENT TO WHAT MAY BE ON THE SHORT OR THE LONG
PULL OVEREXPANSION OF INDUSTRIAL FACILITIES; THE AVAILABILITY OF A MORE
SUITABLE BASIS FOR THE FIXING OF QUOTAS, ETC., ETC.  THE FINAL JUDGMENT
IS TOO APT TO BE A HODGE-PODGE OF CONSIDERATIONS, INCLUDING
CONSIDERATIONS THAT MAY WELL WEIGH WITH LEGISLATORS BUT WHICH THIS
COURT CAN HARDLY DISENTANGLE. 

SUFFICE IT TO SAY THAT SINCE CONGRESS FIXED THE QUOTAS ON A
HISTORICAL BASIS IT IS NOT FOR THIS COURT TO REWEIGH THE RELEVANT
FACTORS AND, PERCHANCE, SUBSTITUTE ITS NOTION OF EXPEDIENCY AND
FAIRNESS FOR THAT OF CONGRESS.  THIS IS SO EVEN THOUGH THE QUOTAS THUS
FIXED MAY DEMONSTRABLY BE DISADVANTAGEOUS TO CERTAIN AREAS OR PERSONS. 
THIS COURT IS NOT A TRIBUNAL FOR RELIEF FROM THE CRUDITIES AND
INEQUITIES OF COMPLICATED EXPERIMENTAL ECONOMIC LEGISLATION.  SEE
WICKARD V. FILBURN, SUPRA AT 129. 

CONGRESS, IT IS INSISTED, HAS NOT ESTABLISHED REFINED SUGAR QUOTAS
FOR THE MAINLAND REFINERS AS IT HAS FOR THE OFFSHORE AREAS.  WHATEVER
INEQUALITIES MAY THEREBY BE CREATED, THIS IS NOT THE FORUM FOR THEIR
CORRECTION FOR THE ALL-SUFFICIENT REASON THAT THE EXTENT AND NATURE OF
INEQUALITIES ARE THEMSELVES CONTROVERSIAL MATTERS HARDLY MEET FOR
JUDICIAL SOLUTION.  THUS, WHILE THE MAINLAND REFINERS ARE LEGALLY FREE
TO PURCHASE AND REFINE ALL SUGAR WITHIN THE RAW SUGAR QUOTA AND PUERTO
RICAN REFINERS ARE LIMITED TO THEIR SHARES OF THE REFINED SUGAR QUOTA,
CONGRESS APPARENTLY THOUGHT THAT PUERTO RICAN REFINERS OPERATED AT
COSTS SUFFICIENTLY LOW TO INSULATE THEM FROM MAINLAND COMPETITION.  IN
ADDITION, IT IS CLAIMED THAT SINCE THE TOTAL SUPPLY OF RAW SUGAR
PERMITTED TO ENTER THE MAINLAND MARKET IS LIMITED THE MAINLAND REFINERS
ARE IN EFFECT ALSO SUBJECT TO THE REFINED SUGAR QUOTA, ALTHOUGH IN
CONTRAST TO THE UNCHANGING QUOTAS OF THE TERRITORIES THE MAINLAND QUOTA
WILL VARY WITH CHANGES IN THE TOTAL CONSUMER DEMAND.  BECAUSE THIS
DEMAND TENDS TO BE STABLE, HOWEVER, THE MAINLAND REFINERS' SHARE OF THE
REFINED SUGAR HAS NOT, IT IS URGED, GREATLY EXPANDED DURING THE YEARS
WHEN QUOTAS WERE IN EFFECT.  CONGRESS MIGHT WELL HAVE THOUGHT THAT
RELATIVELY MINOR CONTRACTIONS AND EXPANSIONS IN SUPPLY FROM YEAR TO
YEAR SHOULD THUS BE ABSORBED. 

PLAINLY IT IS NOT THE BUSINESS OF JUDGES TO SIT IN JUDGMENT ON THE
VALIDITY OR THE SIGNIFICANCE OF SUCH VIEWS.  THE ACT MAY IMPOSE
HARDSHIPS HERE AND THERE; THE INCIDENCE OF HARDSHIP MAY SHIFT IN
LOCATION AND INTENSITY.  IT IS NOT FOR US TO HAVE VIEWS ON THE MERITS
OF THIS LEGISLATION.  IT SUFFICES THAT WE CANNOT SAY, AS WE CANNOT,
THAT THERE IS "DISCRIMINATION OF SUCH AN INJURIOUS CHARACTER AS TO
BRING INTO OPERATION THE DUE PROCESS CLAUSE."  CURRIN V. WALLACE, 306
U.S. 1, 14.  EXPRESSIONS OF DISSATISFACTION BY THE EXECUTIVE AND IN
SOME QUARTERS OF CONGRESS THAT THE REFINED SUGAR QUOTAS WERE
"ARBITRARY," "DISCRIMINATORY," AND "UNFAIR" MAY REFLECT GREATER WISDOM
OR GREATER FAIRNESS THAN THE COLLECTIVE WISDOM OF CONGRESS WHICH PUT
THIS ACT ON THE STATUTE BOOKS.  BUT THE ISSUE WAS THRASHED OUT IN
CONGRESS; CONGRESS IS THE PLACE FOR ITS RECONSIDERATION. 

III.  THERE REMAINS PUERTO RICO'S RIGHT TO PARTICIPATE IN THIS
LITIGATION.  PUERTO RICO CAN HAVE NO BETTER STANDING TO CHALLENGE THE
CONSTITUTIONALITY OF THE SUGAR ACT OF 1948 THAN IF IT WERE A FULL
FLEDGED STATE.  THE RIGHT OF A STATE TO PRESS SUCH A CLAIM RAISES
FAMILIAR DIFFICULTIES.  COMPARE MASSACHUSETTS V. MELLON, 262 U.S. 447;
FLORIDA V. MELLON, 273 U.S. 12; JONES EX REL. LOUISIANA V. BOWLES, 322
U.S. 707, WITH GEORGIA V. TENNESSEE COPPER CO., 206 U.S. 230; NEW YORK
V. NEW JERSEY, 256 U.S. 296; GEORGIA V. PENNSYLVANIA R. CO., 324 U.S.
439.  WHATEVER RIGHTS PUERTO RICO HAS AS A POLITY, SEE PORTO RICO V.
ROSALY, 227 U.S. 270; PUERTO RICO V. SHELL CO., 302 U.S. 253; PUERTO
RICO V. RUBERT HERMANOS, INC., 309 U.S. 543, THE ISLAND IS NOT A
STATE.  ADDITIONAL LEGAL QUESTIONS ARE RAISED WHETHER PUERTO RICO CAN
PRESS THE INTERESTS THAT IT IS HERE PRESSING.  IN VIEW OF THE
CONCLUSION THAT WE HAVE REACHED ON THE CONSTITUTIONAL ISSUES WHICH HAD
TO BE MET APART FROM ANY JURISDICTIONAL QUESTION, IT WOULD ENTAIL AN
EMPTY DISCUSSION TO DECIDE WHETHER PUERTO RICO HAS A STANDING AS A
PARTY IN THIS CASE.  IT WOULD IN EFFECT BE MERELY AN ADVISORY OPINION
ON A DELICATE SUBJECT.  SINCE THE REAL ISSUES RAISED BY PUERTO RICO
HAVE ALREADY BEEN DECIDED IN NOS. 27 AND 30, IT BECOMES UNNECESSARY TO
DECIDE THE QUESTION OF PUERTO RICO'S STANDING TO SUE.  WICKARD V.
FILBURN, SUPRA AT 114, N. 3.  NOS. 27 AND 30 REVERSED.  NO. 32
DISMISSED. 

FN1  IN THE COURSE OF THIS OPINION ALL EXPRESSIONS OF AN ECONOMIC
CHARACTER ARE TO BE ATTRIBUTED TO THOSE WHO HAVE AUTHORITY TO MAKE SUCH
ECONOMIC JUDGMENTS - THE CONGRESS AND THE SECRETARY OF AGRICULTURE -
AND ARE NOT TO BE DEEMED THE INDEPENDENT JUDGMENTS OF THE COURT.  IT IS
NOT OUR RIGHT TO PRONOUNCE ECONOMIC VIEWS; WE ARE CONFINED TO PASSING
ON THE RIGHT OF THE CONGRESS AND THE SECRETARY TO ACT ON THE BASIS OF
ENTERTAINABLE ECONOMIC JUDGMENTS. 

FN2  WITH MINOR EXCEPTIONS NOT RELEVANT HERE, THE TERM "DIRECT
CONSUMPTION" SUGAR IN THE ACT REFERS TO REFINED SUGAR. 

FN3  THE FULL TEXT OF SEC. 205(A) IS AS FOLLOWS: 

"WHENEVER THE SECRETARY FINDS THAT THE ALLOTMENT OF ANY QUOTA, OR
PRORATION THEREOF, ESTABLISHED FOR ANY AREA PURSUANT TO THE PROVISIONS
OF THIS ACT, IS NECESSARY TO ASSURE AN ORDERLY AND ADEQUATE FLOW OF
SUGAR OR LIQUID SUGAR IN THE CHANNELS OF INTERSTATE OR FOREIGN
COMMERCE, OR TO PREVENT DISORDERLY MARKETING OR IMPORTATION OF SUGAR OR
LIQUID SUGAR, OR TO MAINTAIN A CONTINUOUS AND STABLE SUPPLY OF SUGAR OR
LIQUID SUGAR, OR TO AFFORD ALL INTERESTED PERSONS AN EQUITABLE
OPPORTUNITY TO MARKET SUGAR OR LIQUID SUGAR WITHIN ANY AREA'S QUOTA,
AFTER SUCH HEARING AND UPON SUCH NOTICE AS HE MAY BY REGULATIONS
PRESCRIBE, HE SHALL MAKE ALLOTMENTS OF SUCH QUOTA OR PRORATION THEREOF
BY ALLOTTING TO PERSONS WHO MARKET OR IMPORT SUGAR OR LIQUID SUGAR, FOR
SUCH PERIODS AS HE MAY DESIGNATE, THE QUANTITIES OF SUGAR OR LIQUID
SUGAR WHICH EACH SUCH PERSON MAY MARKET IN CONTINENTAL UNITED STATES,
THE TERRITORY OF HAWAII, OR PUERTO RICO, OR MAY IMPORT OR BRING INTO
CONTINENTAL UNITED STATES, FOR CONSUMPTION THEREIN.  ALLOTMENTS SHALL
BE MADE IN SUCH MANNER AND IN SUCH AMOUNTS AS TO PROVIDE A FAIR,
EFFICIENT, AND EQUITABLE DISTRIBUTION OF SUCH QUOTA OR PRORATION
THEREOF, BY TAKING INTO CONSIDERATION THE PROCESSINGS OF SUGAR OR
LIQUID SUGAR FROM SUGAR BEETS OR SUGARCANE TO WHICH PROPORTIONATE
SHARES, DETERMINED PURSUANT TO THE PROVISIONS OF SUBSECTION (B) OF
SUCH PERSON; AND THE ABILITY OF SUCH PERSON TO MARKET OR IMPORT THAT
PORTION OF SUCH QUOTA OR PRORATION THEREOF ALLOTTED TO HIM.  THE
SECRETARY MAY ALSO, UPON SUCH HEARING AND NOTICE AS HE MAY BY
REGULATIONS PRESCRIBE, REVISE OR AMEND ANY SUCH ALLOTMENT UPON THE SAME
BASIS AS THE INITIAL ALLOTMENT WAS MADE."  61 STAT. 926, 7 U.S.C. SEC.
1115. 

FN4  TO HELP EFFECTUATE THE MARKETING CONTROLS, SEC. 301 OF THE ACT
PROVIDES THAT CERTAIN PAYMENTS WILL BE MADE TO FARMERS ONLY IF THEY
LIMIT THE MARKETING OF SUGAR CANE OR BEETS GROWN ON THEIR FARMS TO A
"PROPORTIONATE SHARE" OF THE QUANTITY NECESSARY TO FILL THE AREA'S
QUOTA, PLUS A NORMAL CARRY-OVER.  THE RELEVANCE OF THIS PROVISION HERE
IS THAT PROCESSINGS OF SUGAR GROWN WITHIN THE "PROPORTIONATE SHARE"
RESTRICTION ARE ONE OF THE THREE FACTORS TO BE CONSIDERED BY THE
SECRETARY IN THE MAKING OF ALLOTMENTS UNDER SEC. 205(A). 

FN5  WITH RESPECT TO THE SECRETARY'S COMPARABLE FUNCTION OF FIXING
PROPORTIONATE SHARES FOR FARMS UNDER SEC. 302 OF THE ACT, THE HOUSE
COMMITTEE ON AGRICULTURE STATED:  "IN VIEW OF THE DIFFERENCES IN
CONDITIONS OF PRODUCTION OBTAINING IN THE VARIOUS SUGAR-PRODUCING
AREAS, THE COMMITTEE HAS NOT ATTEMPTED TO SPECIFY THE EXACT MANNER IN
WHICH THE SECRETARY SHALL USE PRODUCTION HISTORY.  IT IS THE JUDGMENT
OF THE COMMITTEE THAT CONSIDERABLE DISCRETION SHOULD BE LEFT TO THE
SECRETARY TO DEAL WITH THE VARIED AND CHANGING CONDITIONS IN THE
VARIOUS PRODUCING AREAS, IN ORDER TO ESTABLISH FAIR AND EQUITABLE
PROPORTIONATE SHARES FOR FARMS IN SUCH AREAS."  H.R. REP. NO. 796, 80TH
CONG., 1ST SESS. 8. 

FN6  THE AVERAGE PRICE PER POUND OF DUTY-PAID RAW SUGAR GRADUALLY
DECLINED FROM 6.98 CENTS IN 1923 TO 2.80 CENTS IN EARLY 1932.  UNITED
STATES TARIFF COMM'N, REPORT TO THE PRESIDENT ON SUGAR, REPORT NO. 73,
2D SER., P. 46.  SEE ALSO DALTON, SUGAR, A CASE STUDY OF GOVERNMENT
CONTROL, CC. IV, V, ESPECIALLY P. 41; 16 DEPT. STATE BULL.  44. 

FN7  IT WAS ESTIMATED THAT THE MAINLAND REFINERIES ALONE HAD A
CAPACITY IN EXCESS OF DEMAND OF FROM ONE-THIRD TO ONE-HALF.  SEE UNITED
STATES TARIFF COMM'N, REPORT TO THE PRESIDENT ON SUGAR, REPORT NO. 73,
2D SER., P. 91; CF. SUGAR INSTITUTE, INC. V. UNITED STATES, 297 U.S.
553, 574. 

MR. JUSTICE BLACK WOULD AFFIRM THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FOR THE REASONS
GIVEN IN THAT COURT'S OPINION.  84 U.S. APP. D.C. 161, 171 F.2D 1016. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THESE CASES. 
..END :





CHAPMAN V. SHERIDAN-WYOMING CO., 338 U.S. 621 


NO. 60.  ARGUED JANUARY 9, 1950.  - DECIDED FEBRUARY 6, 1950.  - 84 U.S.
APP. D.C. 288, 172 F.2D 282, REVERSED. 


1.  UNDER THE MINERAL LANDS LEASING ACT, THE SECRETARY OF THE INTERIOR
LEASED COAL-MINING RIGHTS IN CERTAIN PUBLIC LANDS TO ONE LESSEE AND NOW
PROPOSES TO LEASE SIMILAR RIGHTS IN OTHER PUBLIC LANDS TO A COMPETITOR
OPERATING COAL MINES ON STATE LANDS WHICH ARE NEARING EXHAUSTION.  THE
FIRST LESSEE SUED TO ENJOIN THE PROPOSED LEASE TO ITS COMPETITOR.  ITS
LEASE CONTAINED NO EXPRESS COVENANT NOT TO LEASE OTHER LANDS TO
COMPETITORS; BUT A REGULATION OF THE SECRETARY DIRECTS THAT LEASES BE
RECOMMENDED "ONLY IN CASES WHERE THERE HAS BEEN FURNISHED A
SATISFACTORY SHOWING THAT AN ADDITIONAL COAL MINE IS NEEDED AND THAT
THERE IS AN ACTUAL NEED FOR COAL WHICH CANNOT OTHERWISE BE REASONABLY
MET."  IT IS ASSUMED THAT NO SUCH SHOWING HAS BEEN OR CAN BE MADE IN
THIS CASE.  HELD: THE COMPLAINT STATED NO CAUSE OF ACTION.  THE
PROPOSED LEASE DOES NOT BREACH ANY CONTRACT RIGHT OR INVADE ANY
PROPERTY RIGHT OF PLAINTIFF AND DOES NOT VIOLATE ANY LAW, BUT IS WITHIN
THE DISCRETIONARY POWER OF THE SECRETARY.  PP. 622-631. 

(A)  THE COMPLAINT DOES NOT SHOW A CAUSE OF ACTION TO ENFORCE A
RESTRICTIVE COVENANT OR PROPERTY RIGHT AGAINST LEASING OTHER PUBLIC
LANDS AS AUTHORIZED BY THE STATUTE.  PP. 625-629. 

(B)  ASSUMING THAT THE REGULATION FIXES A CONTROLLING POLICY, THE
SECRETARY'S INTERPRETATION OF IT AS NOT APPLYING TO A LEASE TO KEEP AN
EXISTING COAL MINE IN OPERATION, IS A PERMISSIBLE INTERPRETATION WHICH
WILL NOT BE DISTURBED BY THE COURTS.  PP. 629-631. 

2.  THE MINERAL LANDS LEASING ACT DOES NOT AUTHORIZE ANYONE TO GRANT
OR TO OBTAIN EXCLUSIVE RIGHTS OF ACCESS TO COAL RESOURCES IN PUBLIC
LANDS BUT SEEMS TO CONTEMPLATE THE OPENING OF THE PUBLIC DOMAIN TO
COMPETITIVE EXPLOITATION.  PP. 628-629. 

CHAPMAN, SECRETARY OF THE INTERIOR, V. SHERIDAN-WYOMING COAL CO.,
INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE PROCEEDINGS BELOW ARE STATED CONCISELY IN THE FIRST PARAGRAPH OF
THE OPINION.  CHAPMAN WAS SUBSTITUTED FOR KRUG AS THE PARTY
PETITIONER.  338 U.S. 898.  THE JUDGMENT OF THIS COURT IS REPORTED AT
P. 631.  COURT. 

THIS ACTION BY A LESSEE OF COAL-MINING RIGHTS IN PUBLIC LANDS SEEKS
TO PREVENT LEASING OF SIMILAR RIGHTS IN OTHER LANDS TO A COMPETITOR. 
THE CASE IS BEFORE US ONLY ON PLEADINGS.  THE ORIGINAL COMPLAINT WAS
DISMISSED BY THE DISTRICT COURT ON SEVERAL GROUNDS BUT THE COURT OF
APPEALS AFFIRMED ONLY ON THE GROUND THAT THE COMPLAINT SHOWED NO
STANDING TO SUE, THERE BEING NO ALLEGATION OF SPECIAL INJURY TO ANY
PROPERTY RIGHT OF PLAINTIFF.  SHERIDAN-WYOMING COAL CO. V. KRUG, 83
U.S. APP. D.C. 162, 168 F.2D 557.  IT GAVE LEAVE TO APPLY TO THE
DISTRICT COURT TO AMEND IN THIS RESPECT.  THE DISTRICT COURT DENIED THE
PRIVILEGE, HOWEVER, HOLDING THAT THE PROPOSED NEW MATTER ADDED NOTHING
MATERIAL, AND THAT AMENDMENT WOULD BE IDLE AND NEEDLESSLY PROLONG THE
LITIGATION.  THIS, WE THINK, WAS EQUIVALENT IN EFFECT TO SUSTAINING A
DEMURRER TO THE AMENDED COMPLAINT AND REQUIRES US TO TREAT WELL-PLEADED
FACTS AS TRUE.  ON THIS BASIS, THE COURT OF APPEALS REVERSED AND, IN
SUBSTANCE, HELD THAT THE AMENDED COMPLAINT DOES STATE A CAUSE OF
ACTION.  84 U.S. APP. D.C. 288, 172 F.2D 282.  WE GRANTED CERTIORARI. 
338 U.S. 810. 

THE HYPOTHESIS ON WHICH THE LEGAL ISSUES ARE TO BE DECIDED IS THIS: 

AT ALL RELEVANT TIMES THE FOLLOWING REGULATION, PROMULGATED BY THE
SECRETARY OF THE INTERIOR, HAS BEEN IN EFFECT: 

"SHOWING REQUIRED THAT AN ADDITIONAL COAL MINE IS NEEDED.  THE
GENERAL LAND OFFICE WILL MAKE FAVORABLE RECOMMENDATION THAT LEASING
UNITS BE SEGREGATED AND THAT AUCTIONS BE AUTHORIZED ONLY IN CASES WHERE
THERE HAS BEEN FURNISHED A SATISFACTORY SHOWING THAT AN ADDITIONAL COAL
MINE IS NEEDED AND THAT THERE IS AN ACTUAL NEED FOR COAL WHICH CANNOT
OTHERWISE BE REASONABLY MET."  43 CFR 1938, SEC. 193.3. 

IT ORIGINATED IN 1934, WHEN THE COAL INDUSTRY WAS DEMORALIZED BY
EXCESS PRODUCTION CAPACITY DESCRIBED IN OPINIONS OF THIS COURT. 
APPALACHIAN COALS, INC. V. UNITED STATES, 288 U.S. 344, 361; CARTER V.
CARTER COAL CO., 298 U.S. 238, OPINION OF CARDOZO, J., 324, 330;
SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 395.  THE POLICY
WHICH THE DEPARTMENT EMBODIED IN THIS REGULATION, AND TO WHICH IT HAS
SINCE ADHERED, WAS STATED IN LETTERS OF THE SECRETARY SET FORTH IN THE
MARGIN.  FN1 

IN SEPTEMBER, 1943, THE SHERIDAN-WYOMING COAL COMPANY LEASED
ADDITIONAL LANDS LOCATED IN WYOMING FOR COALMINING PURPOSES FROM THE
GOVERNMENT AND, "IN RELIANCE UPON THE REGULATION," HAS EXPENDED LARGE
SUMS IN DEVELOPMENT AND BUILT UP A PROSPEROUS BUSINESS IN THE RATHER
LOW-GRADE COAL MINED AND LARGELY CONSUMED IN THAT REGION. 

IN DECEMBER, 1943, THE BIG HORN COMPANY APPLIED FOR A LEASE OF NEARBY
LANDS FOR PRODUCTION OF COMPETITIVE COAL, AND IN 1945 APPLIED FOR
ADDITIONAL LANDS.  MEANWHILE BIG HORN ALREADY HAD ESTABLISHED MINES ON
PARTIALLY EXHAUSTED STATE-OWNED LANDS AND DESIRED THE FEDERAL LANDS TO
PROLONG ITS BUSINESS.  THE SHERIDAN-WYOMING COMPANY, AMONG OTHERS,
PROTESTED ON THE BASIS OF THE REGULATION.  THE PROTEST, AFTER HEARINGS,
WAS OVERRULED AND, UNLESS PREVENTED, THE SECRETARY WILL LEASE TO BIG
HORN.  THE SECRETARY HAS MADE NO FINDING THAT THERE IS NEED FOR ANY
ADDITIONAL SUPPLY OF COAL AND, IN FACT, THERE IS NO SUCH NEED.  IF HE
LEASES TO BIG HORN, THE TWO COMPANIES WILL HAVE CAPACITY TO PRODUCE IN
EXCESS OF THE DEMAND FOR THAT GRADE OF COAL IN THE LIMITED MARKET.  THE
INVESTMENT OF SHERIDAN-WYOMING WILL BE SUBSTANTIALLY IMPAIRED AND ITS
VOLUME OF SALES DECREASED AND PROFITABLE MARKETS LOST.  ABOUT THESE
THREE ULTIMATE FACTS - THE REGULATION, THE LEASE AND THE THREATENED
LEASE TO A COMPETITOR - THE PARTIES HAVE ARGUED SEVERAL INTRICATE AND
INTERESTING QUESTIONS AS TO THE STANDING OF THE PLAINTIFF TO SUE,
WHETHER THE SUIT REALLY IS ONE AGAINST THE UNITED STATES WITHOUT
SOVEREIGN CONSENT AND WHETHER THE SECRETARY HAS ABUSED HIS POWER IN
ENTERTAINING THE APPLICATION OF BIG HORN.  THESE QUESTIONS WE DO NOT
NEED TO DISCUSS BECAUSE OF THE VIEW WE TAKE OF MORE FUNDAMENTAL ASPECTS
OF THE CASE.  WE THINK THE FACTS GIVE RISE TO NO CAUSE OF ACTION,
BECAUSE THE PROPOSED LEASE DOES NOT BREACH ANY CONTRACT RIGHT OR INVADE
ANY PROPERTY RIGHT OF PLAINTIFF AND DOES NOT VIOLATE ANY LAW.  HENCE,
THE LEASING IS WITHIN THE DISCRETIONARY POWER OF THE SECRETARY AND
COURTS WILL NOT REVIEW ITS EXERCISE. 

                         I. CONTRACT RIGHTS. 

THE COURT BELOW HAS SUSTAINED THE COMPLAINT FOR THE PRINCIPAL REASON
THAT A LEASE TO BIG HORN WOULD BREACH THE LEASE TO PLAINTIFF AND THAT
PLAINTIFF HAS A PROPERTY RIGHT TO HAVE THE LANDS INVOLVED WITHHELD FROM
LEASE. 

IT IS ONLY ON THIS BASIS OF ITS PROPERTY RIGHTS, CREATED BY CONTRACT,
THAT PLAINTIFF HAS BEEN HELD TO HAVE STANDING TO SUE; FOR, IF IT HAS
SUCH RIGHTS, THE COURT BELOW TRULY SAID, "THE PREVENTION OF A BREACH OF
A RESTRICTIVE PROVISION IN A CONTRACT IS ONE OF EQUITY'S MOST USUAL
FUNCTIONS."  CREDITED WITH "THE STATUS OF ONE CLAIMING A PROPERTY RIGHT
BY CONTRACT, THREATENED WITH INVASION," THE PLAINTIFF HAS BEEN TERMED
BY THE COURT OF APPEALS "POSSESSOR OF A VALUABLE RIGHT, CREATED BY
CONTRACT IN THE PRESENCE OF VALID AND BINDING RESTRICTIVE
REGULATIONS." 

OF COURSE, NO EXPRESS COVENANT OF PLAINTIFF'S LEASE RESTRICTS THE
SECRETARY FROM LEASING OTHER LANDS TO OTHER APPLICANTS.  THE
RESTRICTIVE COVENANT IS SOUGHT TO BE SUPPLIED BY IMPLICATION.  THE
LEASE, IT IS REASONED, WAS EXPRESSLY MADE SUBJECT TO THE MINERAL LANDS
LEASING ACT, 41 STAT. 437, AS AMENDED, 30 U.S.C. SECS. 181 ET SEQ.; THE
LEASE CONSTRUCTIVELY INCLUDES THE STATUTE; THE REGULATION WHICH WAS NOT
REFERRED TO IN THE LEASE NEVERTHELESS HAD THE FORCE AND SANCTION OF
STATUTE; HENCE, THE RESTRICTIVE REGULATION WAS A COVENANT OF THE
LEASE.  IT IS SAID THE THREATENED LEASE WOULD VIOLATE THE REGULATION. 
FOR THE PURPOSE OF TESTING THE CONTRACT-RIGHT THEORY, WE SHALL ASSUME
THAT IT DOES SO. 

WHAT IS THE CONTRACT PROPERTY RIGHT ASSUMED?  IT IS A RIGHT TO
NONDEVELOPMENT OF COAL RESERVES IN AN INDETERMINATE BUT SUBSTANTIAL
PART OF THE PUBLIC DOMAIN FOR BENEFIT OF ITS OWN LEASE.  IT IS NOT A
RIGHT NECESSARY TO THE FULLEST PHYSICAL DEVELOPMENT AND ENJOYMENT OF
ALL THE LANDS PLAINTIFF ACQUIRED FOR ITSELF, AND IS ONE NOT NORMALLY
APPURTENANT TO REAL ESTATE.  THE ASSUMED COVENANT IS PURELY NEGATIVE IN
CHARACTER AND ITS WHOLE BURDEN IS UPON OTHER PREMISES OWNED BY THE
UNITED STATES IN WHICH THE PLAINTIFF HAS NO OTHER INTEREST.  THEY ARE
PREMISES, MOREOVER, IN WHICH IT IS DOUBTFUL WHETHER PLAINTIFF COULD
LAWFULLY ACQUIRE ANY OTHER INTEREST IN VIEW OF THE LIMITED AREAS WHICH
THE STATUTE ALLOWS TO ONE LESSEE.  BY THE ASSUMED COVENANT, ALIENATION
AND UTILIZATION OF PUBLIC LANDS IN THE MANNER AUTHORIZED BY CONGRESS IS
RESTRICTED.  THIS IS FOR AN UNSTATED AND INDETERMINABLE PERIOD.  AND IT
IS ACCOMPLISHED NOT BY A COVENANT EXPRESSED IN THE LEASE ITSELF, BUT BY
ONE READ INTO IT FROM THE REGULATIONS. 

A COMPETENT GRANTOR BY APPROPRIATE COVENANTS COULD, OF COURSE, CONVEY
THE RIGHT CLAIMED HERE, AND EQUITY WOULD ENFORCE IT.  BUT WHEN A RIGHT
"CONSISTS IN RESTRAINING THE OWNER FROM DOING THAT WITH, AND UPON, HIS
PROPERTY WHICH, BUT FOR THE GRANT OR COVENANT, HE MIGHT LAWFULLY HAVE
DONE," IT IS AN EASEMENT, SOMETIMES CALLED A NEGATIVE EASEMENT, OR AN
AMENITY.  TRUSTEES V. LYNCH, 70 N.Y. 440, 447.  "AN EQUITABLE
RESTRICTION," WHICH PREVENTS DEVELOPMENT OF PROPERTY BY BUILDING ON IT,
HAS BEEN SAID TO BE "AN EASEMENT, OR SERVITUDE IN THE NATURE OF AN
EASEMENT," A "RIGHT IN THE NATURE OF AN EASEMENT," AND AN "INTEREST IN
A CONTRACTUAL STIPULATION WHICH IS MADE FOR THEIR COMMON BENEFIT." 
SUCH "EQUITABLE RESTRICTIONS" ARE REAL EATATE, PART AND PARCEL OF THE
LAND TO WHICH THEY ARE ATTACHED AND PASS BY CONVEYANCE.  RIVERBANK
IMPROVEMENT CO. V. CHADWICK, 228 MASS. 242, 246, 117 N.E. 244, 245.  A
CONTRACTUAL RESTRICTION WHICH LIMITS THE USE ONE MAY MAKE OF HIS OWN
LANDS IN FAVOR OF ANOTHER AND HIS LANDS IS "SOMETIMES CALLED A NEGATIVE
EASEMENT, WHICH IS THE RIGHT IN THE OWNER OF THE DOMINANT TENEMENT TO
RESTRICT THE OWNER OF THE SERVIENT TENEMENT IN THE EXERCISE OF GENERAL
AND NATURAL RIGHTS OF PROPERTY."  IT IS AN INTEREST IN LANDS WHICH CAN
PASS ONLY BY DEED AND IS IN EVERY LEGAL SENSE AN INCUMBRANCE.  UIHLEIN
V. MATTHEWS, 172 N.Y. 154, 158, 64 N.E. 792, 793. 

BUT WHATEVER WE MIGHT DETERMINE TO BE THE TECHNICAL NATURE OF THE
COLLATERAL PROPERTY RIGHT CLAIMED TO RESULT FROM SHERIDAN'S LEASE, TO
ANY EXTENT THAT IT ADDED A PROPERTY RIGHT TO THE PLAINTIFF'S LANDS IT
CREATED AN INCUMBRANCE OR SUBTRACTION FROM THE AGGREGATE OF RIGHTS IN
THE UNITED STATES.  COURTS WOULD NOT LIGHTLY IMPLY AGAINST ANY LAND
OWNER A COVENANT WHICH WOULD RESTRICT ALIENATION OR ENJOYMENT OF HIS
ESTATE.  THERE ARE EVEN STRONGER REASONS AGAINST IMPLIED COVENANTS
IMPOSING EASEMENTS, SERVITUDES, AMENITIES OR RESTRICTIONS UPON THE
PUBLIC LANDS. 

THE MINERAL LANDS LEASING ACTS CONFER BROAD POWERS ON THE SECRETARY
AS LEASING AGENT FOR THE GOVERNMENT.  WE FIND NOTHING THAT EXPRESSLY
PREVENTS HIM FROM TAKING INTO CONSIDERATION WHETHER A PUBLIC INTEREST
WILL BE SERVED OR INJURED BY OPENING A PARTICULAR MINE.  BUT WE FIND NO
GRANT OF AUTHORITY TO CREATE A PRIVATE CONTRACT RIGHT THAT WOULD
OVERRIDE HIS CONTINUING DUTY TO BE GOVERNED BY THE PUBLIC INTEREST IN
DECIDING TO LEASE OR WITHHOLD LEASES. 

THE LEASING ACTS STRICTLY LIMIT THE AREA WHICH ANY ONE LESSEE MAY
ACQUIRE, EITHER DIRECTLY OR INDIRECTLY.  30 U.S.C. SEC. 184.  BUT IF,
IN TAKING UP A PERMITTED ALLOTMENT OF PUBLIC LANDS, ONE MAY ACQUIRE A
RIGHT THAT OTHER AREAS FAR MORE EXTENSIVE MUST LIE FALLOW AND UNUSED
FOR THE BENEFIT OF HIS LANDS, HE IS ACQUIRING AN INTEREST IN PROHIBITED
LANDS AND AN INTEREST THAT MAY BE WORTH MANY TIMES THAT INTEREST WHICH
THE STATUTE ALLOWS HIM.  AND IT IS ACQUIRED WITHOUT ADDITIONAL PURCHASE
PRICE, RENTAL, OR ROYALTY. 

MOREOVER, IT IS NOT DENIED THAT THE EFFECT OF SUSTAINING PLAINTIFF'S
SUIT WOULD BE TO CREATE A MONOPOLY.  OF COURSE, IT IS A LITTLE ONE,
LIMITED TO LOW-GRADE COAL AND TO AN ADVANTAGEOUS SHIPPING ZONE.  BIG
HORN, IF IT GETS NO LEASE, MUST EVENTUALLY GO OUT OF BUSINESS, LEAVING
ITS CUSTOMERS TO SHERIDAN.  AND THE UNITED STATES COULD NOT FOR SOME
PERIOD - WE DO NOT KNOW HOW LONG - ADMIT ANY OTHER COMPETITOR TO THE
FIELD, UNLESS IT CAN BE SHOWN THAT SHERIDAN'S SUPPLY IS NOT EQUAL TO
THE MARKET.  IT MAY, HOWEVER, CONTINUE TO ACQUIRE ADDITIONAL RESERVES
AS ITS OWN APPROACH EXHAUSTION.  THE WHOLE CLAIM OF DAMAGE HERE IS THAT
COMPETITION FROM BIG HORN WILL IMPAIR THIS SNUG LITTLE MONOPOLY OF THE
MARKET TO WHICH PLAINTIFF THINKS IT HAS ACQUIRED A PROPERTY RIGHT. 

BUT THE POLICY OF THE LEASING STATUTE LOOKS THE OTHER WAY.  BESIDES
LIMITING THE LEASEHOLD OF ANY ONE LESSEE, IT PREVENTS MINERAL RIGHTS,
ON PAIN OF FORFEITURE, FROM PASSING INTO THE HANDS OF ANY UNLAWFUL
TRUST OR BECOMING THE SUBJECT OF ANY CONTRACT OR CONSPIRACY IN
RESTRAINT OF TRADE.  30 U.S.C. SEC. 184.  ITS WHOLE POLICY SEEMS TO
CONTEMPLATE THE OPENING OF THE PUBLIC DOMAIN TO COMPETITIVE
EXPLOITATION.  IT NOWHERE AUTHORIZES ANYONE TO GRANT OR TO OBTAIN
EXCLUSIVE RIGHTS OF ACCESS TO THESE COAL RESOURCES.  WHAT LESSEES CAN
ACQUIRE FROM THE GOVERNMENT IS A SUPPLY OF COAL, NOT AN EXCLUSIVE
MARKET.  WE DO NOT SAY THAT THE SECRETARY MAY NOT WITHHOLD, OR BY
REGULATION PROVIDE FOR WITHHOLDING, LANDS FROM LEASE BECAUSE THE PUBLIC
INTEREST WOULD BE INJURED, THROUGH IMPAIRING PRIVATE BUSINESS, FROM
EXCESS PRODUCTION CAPACITY.  BUT WE FIND NO AUTHORITY TO FREEZE THIS
PUBLIC INTEREST INTO AN IRREVOCABLE PRIVATE PROPERTY RIGHT. 

THE ALLEGATIONS OF THE AMENDED COMPLAINT THEREFORE DO NOT SHOW A
CAUSE OF ACTION TO ENFORCE A RESTRICTIVE COVENANT OR PROPERTY RIGHT
AGAINST LEASING OTHER PUBLIC LANDS AS AUTHORIZED BY STATUTE. 

                 II.  VIOLATION OF LAW OR REGULATION. 

SINCE THE DISTRICT COURT WAS OVERRULED BY THE COURT OF APPEALS ONLY
BECAUSE OF THE LATTER'S PROPERTY RIGHTS THEORY AND SINCE THE COMPLAINT
WITHOUT THESE ALLEGATIONS HAD EARLIER BEEN HELD INSUFFICIENT, IT MAY BE
QUESTIONED WHETHER OTHER GROUNDS TO SUSTAIN THE JUDGMENT BELOW CAN BE
AVAILED OF.  BUT EVEN IF THE ALLEGATIONS FAIL TO SHOW A PROPERTY RIGHT
THAT EQUITY WILL PROTECT, THEY MIGHT BE SUFFICIENT TO SHOW A SPECIAL
INJURY OR INTEREST, SUCH AS WOULD ENABLE PLAINTIFF TO RAISE THE
QUESTION OF VIOLATION OF LAW OR REGULATION IN THE PROPOSED LEASING.  TO
END A LITIGATION ALREADY PENDING TOO LONG, WE ASSUME, WITHOUT DECIDING,
THAT PLAINTIFF MAY RAISE THIS ISSUE WHICH WE NOW CONSIDER. 

THE ONLY CLAIM OF LAW VIOLATION IS THAT THE SECRETARY IS PROPOSING TO
VIOLATE HIS OWN REGULATION, PROMULGATED PURSUANT TO THE ACT AND HENCE
HAVING THE FORCE OF LAW.  THAT IT BINDS HIM AS WELL AS OTHERS WHILE IT
IS IN EFFECT IS NOT DOUBTED. 

THE REGULATION ON LITERAL READING DOES NOT PURPORT TO PROHIBIT THE
SECRETARY FROM ANY LEASING UNLESS NEED FOR NEW MINES BE SHOWN.  IT DOES
DIRECT THE GENERAL LAND OFFICE (NOW THE BUREAU OF LAND MANAGEMENT) TO
FIND NEED FOR ADDITIONAL CAPACITY BEFORE RECOMMENDING NEW LEASING.  ITS
RECOMMENDATION, HOWEVER, IS ONLY ADVISORY AND CAN BE OVERRULED OR
DISREGARDED.  ON ITS FACE, THEREFORE, THE REGULATION WOULD SEEM TO BE
DIRECTED PRIMARILY TO A PROCEDURAL MATTER WITHIN THE DEPARTMENT OF THE
INTERIOR.  HOWEVER, IT IS CLAIMED THAT THE LETTERS OF SECRETARY ICKES
AT THE TIME IT WAS ADOPTED AND THE UNIFORM PRACTICE SINCE, SHOW IT TO
HAVE BEEN A REGULATION FIXING A CONTROLLING POLICY.  WE PROCEED ON THAT
ASSUMPTION.    IN THE CASE BEFORE US THE SECRETARY NEITHER REPUDIATES
THE REGULATION NOR STANDS UPON ANY RIGHT TO DEPART FROM IT.  HE SAYS
THAT, PROPERLY CONSTRUED, IT DOES NOT APPLY TO THE PROPOSED BIG HORN
LEASE.  IT ONLY PREVENTS A LEASE WHICH WILL INTRODUCE A NEW COMPETITOR
TO THE FIELD AND NOT, HE SAYS, A LEASE WHICH WOULD ONLY ENABLE AN
EXISTING MINE AND AN ESTABLISHED BUSINESS TO CONTINUE.  SHERIDAN ARGUES
THAT THIS REASONING SANCTIONS AN EVASION OF THE REGULATION IN THAT BIG
HORN OPENED ITS MINE ON PARTIALLY DEPLETED STATE LANDS KNOWING IT MUST
GET FEDERAL LANDS ALSO OR QUIT.  THE IMPLICATION IS THAT STATE LANDS
WERE USED AS A SORT OF PORTAL IN WHICH TO STAND WHILE PRYING A FEDERAL
LEASE OUT FROM UNDER THE REGULATION.  PLAINTIFF INSISTS THAT THE
SECRETARY IS REQUIRED TO ACT IN THE LIGHT OF CONDITIONS WHEN BIG HORN
FIRST APPLIED, AND NOT AS OF NOW WHEN IT HAS BUILT UP A GOING BUSINESS
ON THE INADEQUATE STATE LEASES, AIDED BY WAR CONDITIONS. 

BUT THE ACTION IS ONE IN EQUITY, AND "EQUITY WILL ADMINISTER SUCH
RELIEF AS THE EXIGENCIES OF THE CASE DEMAND AT THE CLOSE OF THE
TRIAL."  BLOOMQUIST V. FARSON, 222 N.Y. 375, 380, 118 N.E. 855, 856;
LIGHTFOOT V. DAVIS, 198 N.Y. 261, 273, 91 N.E. 582, 586.  THE QUESTION
ON INJUNCTION IS WHETHER THE ACTION THREATENED WILL BE A VIOLATION IF
IT NOW TAKES PLACE IN LIGHT OF CONDITIONS SHOWN BY THE PROPOSED AMENDED
COMPLAINT.  THAT PLEADS FINDINGS OF THE DEPARTMENT WHICH SHOW WHAT HAS
HAPPENED SINCE THE BIG HORN APPLICATION WAS FILED.  WITHOUT RECOURSE TO
FEDERAL LANDS, IT HAS ESTABLISHED A MINE AND A BUSINESS IN THE FACE OF
SHERIDAN COMPETITION.  IF TIME HAS IMPROVED BIG HORN'S POSITION IN THIS
RESPECT, IT MUST BE NOTED THAT THE DELAY IN ACTING ON ITS APPLICATION
HAS BEEN LARGELY DUE TO PLAINTIFF'S PROTESTS AND LITIGATIONS. 

WE THINK A COURT OF EQUITY CANNOT TERM UNREASONABLE THE VIEW OF THE
SECRETARY THAT BIG HORN'S LEASE IS NOT FOR "AN ADDITIONAL COAL MINE,"
NEED FOR WHICH MUST BE PROVED.  IT DOES NOT USE FEDERAL RESERVES TO ADD
A NEW COMPETITOR TO THE MARKET.  IT USES THEM TO KEEP ONE THERE.  WE
THINK THE DISTINCTION IS SUBSTANTIAL AND THE SECRETARY'S INTERPRETATION
OF THE REGULATION IS PERMISSIBLE, EVEN IF NOT INEVITABLE.  THE
DECLINING MARKET FOLLOWING THE WAR AND THE GROWING USE OF OIL MAY
PRESENT DIFFICULT PROBLEMS OF SURVIVAL FOR GOVERNMENT LESSEES AND OF
FAIR DEALING FOR THE SECRETARY.  BUT COURTS CAN INTERVENE ONLY WHERE
LEGAL RIGHTS ARE INVADED OR THE LAW VIOLATED. 

WE THINK THE DISTRICT COURT RIGHTLY CONCLUDED THAT THE AMENDED
COMPLAINT FAILS TO STATE A LEGAL CASE FOR THE RELIEF ASKED. 
ACCORDINGLY, THE JUDGMENT BELOW IS REVERSED. 

FN1              "EXHIBIT 'A' 

"EXCERPT FROM LETTER OF JANUARY 24, 1934, FROM THE SECRETARY OF THE
INTERIOR TO THE DIRECTOR OF THE BUREAU OF GEOLOGICAL SURVEY. 

"THE QUESTION OF THE ADVISABILITY OF WITHHOLDING NEW LEASES OF COAL
LANDS OF THE UNITED STATES HAS BEEN PRESENTED TO ME. 

"IT IS CLEAR FROM THE LANGUAGE OF SECTION 2 OF THE LEASING ACT OF
FEBRUARY 25, 1920(41 STAT. 437), AND FROM THE INTERPRETATION GIVEN TO
IN THE CASE OF UNITED STATES V. WILBUR, 283 U.S. 414, THAT IT IS WITHIN
THE DISCRETIONARY AUTHORITY OF THE SECRETARY OF THE INTERIOR WHETHER HE
SHALL ISSUE ANY COAL LEASES AND COAL PROSPECTING PERMITS.  IN THE
PRESENT SITUATION OF THE COAL INDUSTRY IT IS DESIRABLE THAT VERY FEW,
IF ANY, NEW COAL LEASES OR PROSPECTING PERMITS BE ISSUED. 

"TAKING INTO CONSIDERATION, HOWEVER, THAT THERE MAY BE SOME CASES
WHERE NEW SMALL COAL MINES FOR LOCAL NEEDS ARE ADVISABLE AND THAT THERE
MAY ALSO BE CASES WHERE LEASES FOR SHIPPING MINES SHOULD NOT BE DENIED,
IT IS THOUGHT THAT NO GENERAL ORDER SHOULD BE ISSUED IN EFFECT
SUSPENDING THE OPERATION OF THE LEASING ACT AS TO NEW COAL LEASES AND
PROSPECTING PERMITS.  IT IS BELIEVED THAT SUBSTANTIALLY THE SAME RESULT
CAN BE REACHED BY DECLINING TO OFFER COAL LANDS FOR LEASE OR TO GRANT
PROSPECTING PERMITS UNLESS AN ACTUAL NEED FOR COAL WHICH CANNOT
OTHERWISE BE REASONABLY PURCHASED OR OBTAINED IS SHOWN.  ... 

"HEREAFTER THE OFFERING OF COAL LANDS FOR LEASE BY COMPETITIVE
BIDDING OR THE GRANTING OF PROSPECTING PERMITS SHOULD NOT BE
RECOMMENDED UNLESS YOU HAVE RELIABLE INFORMATION THAT THERE IS AN
ACTUAL NEED FOR COAL WHICH CANNOT OTHERWISE BE REASONABLY MET." 

                             "EXHIBIT 'B' 

"EXCERPT FROM LETTER OF JANUARY 24, 1934, FROM THE SECRETARY OF THE
INTERIOR TO THE COMMISSIONER OF THE GENERAL LAND OFFICE. 

"IN THE PRESENT SITUATION OF THE COAL INDUSTRY IT IS DESIRABLE THAT
VERY FEW, IF ANY, NEW COAL LEASES OR PROSPECTING PERMITS BE ISSUED. 

"TAKING INTO CONSIDERATION, HOWEVER, THAT THERE MAY BE SOME CASES
WHERE NEW SMALL COAL MINES FOR LOCAL NEEDS ARE ADVISABLE AND THAT THERE
MAY ALSO BE CASES WHERE LEASES FOR SHIPPING MINES SHOULD NOT BE DENIED,
IT IS THOUGHT THAT NO GENERAL ORDER SHOULD BE ISSUED IN EFFECT
SUSPENDING THE LEASING ACT AS TO NEW COAL LEASES AND PROSPECTING
PERMITS.  IT IS BELIEVED THAT SUBSTANTIALLY THE SAME RESULT CAN BE
REACHED BY DECLINING TO OFFER COAL LANDS FOR LEASE OR TO GRANT
PROSPECTING PERMITS UNLESS AN ACTUAL NEED IS SHOWN FOR COAL WHICH
CANNOT OTHERWISE BE REASONABLY PURCHASED OR OBTAINED.  ... 

"IT IS ADVISABLE THAT YOU IN THE FIRST INSTANCE REQUIRE LEASE
APPLICANTS TO SHOW FULLY THE NEED FOR ADDITIONAL PRODUCTION OF COAL." 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














UNITED STATES V. MORTON SALT CO., 338 U.S. 632 


ARGUED DECEMBER 14, 1949.  - DECIDED FEBRUARY 6, 1950.  - 174 F.2D 703,
REVERSED. 


UNDER SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, THE COMMISSION
ORDERED RESPONDENT CORPORATIONS AND OTHERS TO CEASE AND DESIST FROM
CERTAIN TRADE PRACTICES.  THE COURT OF APPEALS AFFIRMED THE ORDER WITH
MODIFICATIONS AND COMMANDED COMPLIANCE.  THE DECREE DIRECTED THAT
REPORTS OF COMPLIANCE BE FILED WITH THE COMMISSION WITHIN 90 DAYS,
RESERVED JURISDICTION TO ENTER FURTHER ORDERS TO ENFORCE COMPLIANCE,
AND PROVIDED THAT IT WAS WITHOUT PREJUDICE TO THE RIGHT OF THE
GOVERNMENT TO PROSECUTE SUITS TO RECOVER CIVIL PENALTIES FOR VIOLATIONS
OF THE ORDER AND TO INITIATE CONTEMPT PROCEEDINGS FOR VIOLATIONS OF THE
DECREE.  REPORTS OF COMPLIANCE WERE FILED AND ACCEPTED.  UNDER SEC.
6(A) AND (B) OF THE ACT AND ITS OWN RULE OF PRACTICE NO. XXVI, THE
COMMISSION SUBSEQUENTLY ORDERED RESPONDENTS TO FILE SPECIAL REPORTS TO
SHOW CONTINUING COMPLIANCE WITH THE DECREE.  HELD: 

1.  THIS ORDER DID NOT INVADE THE JURISDICTION OF THE COURT OF
APPEALS.  PP. 638-643. 

(A)  THE COMMISSION'S CONTINUING DUTY TO PREVENT UNFAIR METHODS OF
COMPETITION AND UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN COMMERCE IS
NOT SUSPENDED OR EXHAUSTED AS TO ANY VIOLATOR WHOSE GUILT IS ONCE
ESTABLISHED.  PP. 638-639. 

(B)  ALTHOUGH THE COMMISSION'S CEASE AND DESIST ORDER WAS MERGED IN
THE COURT'S DECREE, THE COURT NEITHER ASSUMED TO ITSELF NOR DENIED TO
THE COMMISSION THAT AGENCY'S DUTY TO INFORM ITSELF AND TO PROTECT
COMMERCE AGAINST CONTINUED OR RENEWED UNLAWFUL PRACTICE.  P. 641. 

(C)  WHEN INVESTIGATIVE AND ACCUSATORY DUTIES ARE DELEGATED BY
STATUTE TO AN ADMINISTRATIVE BODY LIKE THE COMMISSION, IT MAY TAKE
STEPS TO INFORM ITSELF AS TO WHETHER THERE IS PROBABLE VIOLATION OF THE
LAW WITHOUT FIRST MAKING CHARGES THAT THERE ARE SUCH VIOLATIONS.  PP.
641-643. 

(D)  THE COMMISSION'S ORDER FOR SPECIAL REPORTS WAS NOT MADE IN THE
NAME OF THE COURT OR IN RELIANCE UPON JUDICIAL POWERS, BUT IN RELIANCE
UPON ITS OWN LAW-ENFORCING POWERS.  P. 643. 

2.  THE ORDER DID NOT VIOLATE SEC. 3(A) OF THE ADMINISTRATIVE
PROCEDURE ACT.  RESPONDENTS WERE PUT ON NOTICE OF THE POSSIBILITY OF
THE ISSUANCE OF SUCH ORDERS BY THE COMMISSION'S RULE XXVI, TOGETHER
WITH ITS STATEMENT OF ORGANIZATION, PROCEDURES AND FUNCTIONS, WHICH
MEET THE REQUIREMENTS OF THAT SECTION.  PP. 644-647. 

3.  THE COMMISSION'S AUTHORITY UNDER SEC. 6 OF THE ACT TO REQUIRE
SPECIAL REPORTS OF CORPORATIONS INCLUDES SPECIAL REPORTS OF THE MANNER
IN WHICH THEY ARE COMPLYING WITH DECREES ENFORCING CEASE AND DESIST
ORDERS UNDER SEC. 5.  PP. 647-651. 

(A)  THAT THIS USE OF THE COMMISSION'S POWER UNDER SEC. 6 IS NOVEL
AND UNPRECEDENTED IN COMMISSION PRACTICE DOES NOT REQUIRE A DIFFERENT
RESULT, SINCE POWER GRANTED TO GOVERNMENTAL AGENCIES IS NOT FORFEITED
BY NONUSER.  PP. 647-648. 

(B)  THE LANGUAGE OF SEC. 6 IS CLEARLY BROAD ENOUGH TO AUTHORIZE THE
ISSUANCE OF THE ORDER HERE IN QUESTION.  PP. 648-649. 

(C)  THE USE OF INFORMATION OBTAINED IN SPECIAL REPORTS UNDER SEC. 6
IS NOT LIMITED TO SUPPORT OF GENERAL ECONOMIC SURVEYS FOR THE
PRESIDENT, THE CONGRESS OR THE ATTORNEY GENERAL.  IT MAY ALSO BE USED
IN DETERMINING WHETHER THERE HAS BEEN PROPER COMPLIANCE WITH THE
COURT'S DECREE UNDER SEC. 5.  PP. 649-650. 

(D)  THE SPECIAL REPORTS REQUIRED BY THE ORDER WERE OF THE KIND WHICH
THE COMMISSION IS AUTHORIZED BY SEC. 6 TO REQUIRE.  P. 650. 

(E)  THE FACT THAT SEC. 5 APPLIES TO INDIVIDUALS, PARTNERSHIPS, AND
CORPORATIONS, WHILE SECS. 6(B) AND 10 APPLY ONLY TO CORPORATIONS, DOES
NOT REQUIRE A DIFFERENT RESULT.  PP. 650-651. 

4.  THE COMMISSION'S ORDER DOES NOT CONTRAVENE THE FOURTH AMENDMENT'S
PROSCRIPTION OF UNREASONABLE SEARCHES AND SEIZURES OR THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT.  PP. 651-654. 

(A)  LAW-ENFORCING AGENCIES HAVE A LEGITIMATE RIGHT TO SATISFY
THEMSELVES THAT CORPORATE BEHAVIOR IS CONSISTENT WITH THE LAW AND THE
PUBLIC INTEREST.  P. 652. 

(B)  IF THE INQUIRY IS WITHIN THE AUTHORITY OF THE AGENCY, THE DEMAND
IS NOT TOO INDEFINITE AND THE INFORMATION SOUGHT IS REASONABLY
RELEVANT, IT DOES NOT EXCEED THE INVESTIGATORY POWER OF THE
COMMISSION.  P. 652. 

(C)  ON ITS FACE, THE COMMISSION'S ORDER DID NOT TRANSGRESS THESE
BOUNDS.  PP. 652-653. 

(D)  BEFORE THE COURTS WILL HOLD AN ORDER OF THE COMMISSION SEEKING
INFORMATION REPORTS ARBITRARILY EXCESSIVE, THEY MAY EXPECT THE
SUPPLICANT TO HAVE MADE REASONABLE EFFORTS BEFORE THE COMMISSION ITSELF
TO OBTAIN REASONABLE CONDITIONS; AND PETITIONERS MADE NO SUCH EFFORTS
IN THIS CASE.  PP. 653-654. 

(E)  THIS DECISION IS NOT TO BE UNDERSTOOD AS HOLDING SUCH ORDERS
EXEMPT FROM JUDICIAL EXAMINATION OR AS EXTENDING A LICENSE TO EXACT AS
REPORTS WHAT WOULD NOT REASONABLY BE COMPREHENDED WITHIN THAT TERM AS
USED BY CONGRESS IN THE CONTEXT OF THE ACT.  P. 654. 

UNITED STATES V. MORTON SALT CO. 

NO. 273.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT* . 

*TOGETHER WITH NO. 274, UNITED STATES V. INTERNATIONAL SALT CO., ALSO
ON CERTIORARI TO THE SAME COURT. 

THE DISTRICT COURT DISMISSED SUITS BY THE UNITED STATES UNDER SECS. 9
AND 10 OF THE FEDERAL TRADE COMMISSION ACT TO COMPEL RESPONDENTS TO
COMPLY WITH AN ORDER OF THE FEDERAL TRADE COMMISSION REQUIRING THEM TO
FILE SPECIAL REPORTS, AND TO RECOVER PENALTIES FOR NONCOMPLIANCE.  80
F.SUPP.  419.  THE COURT OF APPEALS AFFIRMED.  174 F.2D 703.  THIS
COURT GRANTED CERTIORARI.  338 U.S. 857.  REVERSED, P. 654. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS IS A CONTROVERSY AS TO THE POWER OF THE FEDERAL TRADE COMMISSION
TO REQUIRE CORPORATIONS TO FILE REPORTS SHOWING HOW THEY HAVE COMPLIED
WITH A DECREE OF THE COURT OF APPEALS ENFORCING THE COMMISSION'S CEASE
AND DESIST ORDER, IN ADDITION TO THOSE REPORTS REQUIRED BY THE DECREE
ITSELF. 

PROCEEDINGS UNDER SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT  FN1
CULMINATED IN A COMMISSION ORDER REQUIRING RESPONDENTS MORTON SALT
COMPANY AND INTERNATIONAL SALT COMPANY, TOGETHER WITH EIGHTEEN OTHER
SALT PRODUCERS AND A TRADE ASSOCIATION, TO CEASE AND DESIST FROM STATED
PRACTICES IN CONNECTION WITH THE PRICING, PRODUCING AND MARKETING OF
SALT.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED THE ORDER
WITH MODIFICATIONS AND COMMANDED COMPLIANCE.  134 F.2D 354.  THE DECREE
DIRECTED THAT REPORTS OF THE MANNER OF COMPLIANCE BE FILED WITH THE
COMMISSION WITHIN NINETY DAYS, BUT IT RESERVED JURISDICTION "TO ENTER
SUCH FURTHER ORDERS HEREIN FROM TIME TO TIME AS MAY BECOME NECESSARY
EFFECTIVELY TO ENFORCE COMPLIANCE IN EVERY RESPECT WITH THIS DECREE AND
TO PREVENT EVASION THEREOF."  THE DECREE EXPRESSLY WAS "WITHOUT
PREJUDICE TO THE RIGHT OF THE UNITED STATES, AS PROVIDED IN SECTION
5(1) OF THE FEDERAL TRADE COMMISSION ACT, TO PROSECUTE SUITS TO RECOVER
CIVIL PENALTIES FOR VIOLATIONS OF THE SAID MODIFIED ORDER TO CEASE AND
DESIST HEREBY AFFIRMED, AND WITHOUT PREJUDICE TO THE RIGHT OF THE
FEDERAL TRADE COMMISSION TO INITIATE CONTEMPT PROCEEDINGS FOR
VIOLATIONS OF THIS DECREE."  THE REPORTS OF COMPLIANCE WERE
SUBSEQUENTLY FILED AND ACCEPTED, AND THERE THE MATTER APPEARS TO HAVE
RESTED FOR A LITTLE UPWARDS OF FOUR YEARS. 

ON SEPTEMBER 2, 1947, THE COMMISSION ORDERED ADDITIONAL AND HIGHLY
PARTICULARIZED REPORTS TO SHOW CONTINUING COMPLIANCE WITH THE DECREE. 
THIS WAS DONE WITHOUT APPLICATION TO THE COURT, WAS NOT AUTHORIZED BY
ANY PROVISION OF ITS DECREE, AND IS NOT PROVIDED FOR IN SEC. 5 OF THE
STATUTE UNDER WHICH THE COMMISSION'S ORIGINAL CEASE AND DESIST ORDER
HAD ISSUED.  THE NEW ORDER RECITED THAT IT WAS ISSUED ON THE
COMMISSION'S OWN MOTION PURSUANT TO ITS PUBLISHED RULE OF PRACTICE NO.
XXVI  FN2  AND THE AUTHORITY GRANTED BY SUBSECTIONS (A) AND (B) OF SEC.
6 OF THE TRADE COMMISSION ACT.  IT ORDERED THESE AND OTHER PARTIES
RESTRAINED BY THE EARLIER DECREE TO FILE WITHIN THIRTY DAYS "ADDITIONAL
REPORTS SHOWING IN DETAIL THE MANNER AND FORM IN WHICH THEY HAVE BEEN,
AND ARE NOW, COMPLYING WITH SAID MODIFIED ORDER TO CEASE AND DESIST AND
SAID DECREE."  IT DEMANDED OF EACH PRODUCER A "COMPLETE STATEMENT" OF
THE "PRICES, TERMS, AND CONDITIONS OF SALE OF SALT, TOGETHER WITH BOOKS
OR COMPILATIONS OF FREIGHT RATES USED IN CALCULATING DELIVERED PRICES,
PRICE LISTS AND PRICE ANNOUNCEMENTS DISTRIBUTED, PUBLISHED OR EMPLOYED
IN MARKETING SALT FROM AND AFTER JANUARY 1, 1944."  FROM THE SALT
PRODUCERS ASSOCIATION IT REQUIRED INFORMATION AS TO ITS ACTIVITIES AND
SERVICES.  THE ASSOCIATION AND SOME OF THE PRODUCERS REPORTED
SATISFACTORILY.  THESE TWO RESPONDENTS DID NOT.  INSTEAD, EACH INFORMED
THE COMMISSION IN GENERAL TERMS THAT IT HAD COMPLIED WITH THE DECREE IN
THE MANNER PREVIOUSLY REPORTED, BUT THAT IT DOUBTED THE COMMISSION'S
JURISDICTION TO REQUIRE FURTHER REPORTS AND DECLINED TO SUPPLY THE
PARTICULARS DEMANDED.  NEITHER ASKED ANY HEARING OR MADE OBJECTION TO
THE SCOPE OF THE ORDER. 

THE COMMISSION NEXT GAVE RESPONDENTS NOTICES ASSERTING THEIR DEFAULT
AND CALLING ATTENTION TO PENALTIES PROVIDED IN SEC. 10 OF THE ACT. 
NEITHER RESPONDENT ASKED ANY HEARING ON THE NOTICE OF DEFAULT.  THESE
SUITS WERE THEN COMMENCED IN THE NAME OF THE UNITED STATES IN DISTRICT
COURT UNDER SECS. 9 AND 10 OF THE TRADE COMMISSION ACT, ASKING
MANDATORY INJUNCTIONS COMMANDING RESPONDENTS TO REPORT AS DIRECTED,
TOGETHER WITH JUDGMENT AGAINST EACH FOR $100 PER DAY WHILE DEFAULT
CONTINUED.  RESPONDENTS ANSWERED.  BOTH SIDES MOVED FOR SUMMARY
JUDGMENTS.  THE COURT FOUND NO DISPUTE AS TO MATERIAL FACTS AND
DISMISSED THE COMPLAINTS FOR WANT OF JURISDICTION.  80 F.SUPP.  419. 
THE COURT OF APPEALS, BY DIVIDED VOTE, AFFIRMED.  174 F.2D 703.  WE
GRANTED CERTIORARI, 338 U.S. 857, BECAUSE THE CASE INVOLVED ISSUES OF
SOME IMPORTANCE TO ENFORCEMENT OF THE ACT AND OF COURT DECREES UNDER IT
AND UNDER OTHER ACTS WHICH PROVIDE SIMILAR METHODS TO ENFORCE ORDERS OF
ADMINISTRATIVE BODIES. 

THE GOVERNMENT'S SUITS AND THE COMMISSION'S ORDER ARE CHALLENGED UPON
A VARIETY OF GROUNDS, NOT ALL OF WHICH WERE CONSIDERED BY THE COURT OF
APPEALS.  THEY INCLUDE CONTENTIONS THAT (1) THE ORDER CONSTITUTES AN
INTERFERENCE WITH THE DECREE AND AN INVASION OF THE POWERS OF THE COURT
OF APPEALS; (2) THE COMMISSION'S RULE XXVI IS ULTRA VIRES AND VIOLATES
THE FEDERAL ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, 5 U.S.C. SECS.
1001 ET SEQ.; (3) THE PROCEDURE IS UNAUTHORIZED BY THOSE SECTIONS OF
THE ACT ON WHICH IT IS BASED; (4) IT IS NOVEL AND ARBITRARY AND
VIOLATES THE FOURTH AND FIFTH AMENDMENTS TO THE CONSTITUTION.  FOR
REASONS GIVEN, WE REJECT EACH OF THESE CONTENTIONS. 

I. INVASION OF COURT OF APPEALS JURISDICTION. 

THE RESPONDENTS' CASE AND THE DECISION BELOW ARE RESTED HEAVILY ON
THIS ARGUMENT THAT THE COMMISSION IS INVADING THE PROVINCE OF THE
JUDICIARY.  THE COURT OF APPEALS HELD THAT THE COMMISSION'S ORDER OF
SEPTEMBER 2, 1947, REPRESENTED AN UNAUTHORIZED ATTEMPT TO ENFORCE THAT
COURT'S DECREE.  IT POINTED OUT THAT THE STATUTE HAD MADE THE COURT'S
OWN JURISDICTION OF THE PROCEEDING "EXCLUSIVE" AND ITS OWN DECREE
FINAL.  IT CONSIDERED THAT "EVERY VESTIGE OF JURISDICTION" OVER THAT
SUBJECT WAS "FIRMLY AND EXCLUSIVELY LODGED IN (THE) COURT OF APPEALS." 
IT NOTED THAT IT HAD REQUIRED FILING OF ONLY THE ORIGINAL COMPLIANCE
REPORTS, AND THAT IT HAD PROTECTED ITS JURISDICTION BY RESERVING POWER
TO ENTER FURTHER ORDERS NECESSARY TO ENFORCE COMPLIANCE AND PREVENT
EVASION.  IT THOUGHT THAT THE EFFECT OF THE COMMISSION'S PROCEEDINGS
WAS TO ASSERT "SUCH JURISDICTION TO RESIDE ELSEWHERE." 

IT SEEMS CONCEDED, HOWEVER, THAT SOME POWER OR DUTY, INDEPENDENTLY OF
THE DECREE, MUST STILL HAVE RESIDED IN THE COMMISSION.  FN3  CERTAINLY
ENTRY OF THE COURT DECREE DID NOT WHOLLY RELIEVE THE COMMISSION OF
RESPONSIBILITY FOR ITS ENFORCEMENT.  THE DECREE RECOGNIZED THAT.  IT
LEFT TO THE COMMISSION THE RIGHT AND HENCE THE RESPONSIBILITY "TO
INITIATE CONTEMPT PROCEEDINGS FOR THE VIOLATION OF THIS DECREE."  THIS
MUST HAVE CONTEMPLATED THAT THE COMMISSION COULD OBTAIN ACCURATE
INFORMATION FROM TIME TO TIME ON WHICH TO BASE A RESPONSIBLE CONCLUSION
THAT THERE WAS OR WAS NOT CAUSE FOR SUCH A PROCEEDING.  THE DECREE ALSO
REQUIRED THE ORIGINAL REPORT SHOWING THE MANNER AND FORM OF EACH
RESPONDENT'S COMPLIANCE TO BE FILED, NOT WITH THE COURT BUT WITH THE
COMMISSION.  PRESUMABLY THE COMMISSION WAS EXPECTED TO SCRUTINIZE IT
AND, IF INSUFFICIENT ON ITS FACE, TO REJECT IT AND MOVE THE COURT TO
TAKE NOTICE OF THE DEFAULT.  AND THE DUTY LIKEWISE WAS LEFT UPON THE
COMMISSION TO MOVE THE COURT IF ANY RESPONDENT MADE A FALSE REPORT. 
THE DUTY WOULD APPEAR TO BE THE SAME IF A TEMPORARY COMPLIANCE WERE
TRULY REPORTED BUT CONDUCT RESUMED WHICH WOULD VIOLATE THE DECREE.  IN
ADDITION, THE TRADE COMMISSION HAS A CONTINUING DUTY TO PREVENT UNFAIR
METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN
COMMERCE.  THAT RESPONSIBILITY AS TO ALL WITHIN THE COVERAGE OF THE ACT
IS NOT SUSPENDED OR EXHAUSTED AS TO ANY VIOLATOR WHOSE GUILT IS ONCE
ESTABLISHED. 

IF THE COMMISSION HAD PETITIONED THE COURT ITSELF TO ORDER ADDITIONAL
REPORTS OF COMPLIANCE, IT COULD PROPERLY HAVE BEEN REQUIRED TO PRESENT
SOME EVIDENCE OF PROBABLE VIOLATION TO OVERCOME THE "PRESUMPTION OF
LEGALITY," OF INNOCENCE, AND OF OBEDIENCE TO THE LAW WHICH RESPONDENTS
HERE URGE.  COURTS HESITATE TO ALTER OR SUPPLEMENT THEIR DECREES EXCEPT
THE NEED BE PROVED AS WELL AS ASSERTED.  EVIDENCE THE COMMISSION DID
NOT HAVE; IT HAD AT MOST A SUSPICION, OR LET US SAY A CURIOSITY AS TO
WHETHER RESPONDENTS' REPORTED REFORMATION IN BUSINESS METHODS WAS AN
ABIDING ONE. 

MUST THE DECREE, AFTER A SINGLE REPORT OF COMPLIANCE, REST UPON
RESPONDENTS' HONOR UNLESS EVIDENCE OF A VIOLATION FORTUITOUSLY COMES TO
THE COMMISSION?  MAY NOT THE COMMISSION, IN VIEW OF ITS RESIDUAL DUTY
OF ENFORCEMENT, AFFIRMATIVELY SATISFY ITSELF THAT THE DECREE IS BEING
OBSERVED?  WHETHER THIS USURPS THE COURTS' OWN FUNCTION IS, WE THINK,
ANSWERED BY CONSIDERATION OF THE FUNDAMENTAL RELATIONSHIP BETWEEN THE
COURTS AND ADMINISTRATIVE BODIES. 

THE TRADE COMMISSION ACT IS ONE OF SEVERAL IN WHICH CONGRESS, TO MAKE
ITS POLICY EFFECTIVE, HAS RELIED UPON THE INITIATIVE OF ADMINISTRATIVE
OFFICIALS AND THE FLEXIBILITY OF THE ADMINISTRATIVE PROCESS.  ITS
AGENCIES ARE PROVIDED WITH STAFFS TO INSTITUTE PROCEEDINGS AND TO
FOLLOW UP DECREES AND POLICE THEIR OBEDIENCE.  WHILE THAT PROCESS AT
TIMES IS ADVERSARY, IT ALSO AT TIMES IS INQUISITORIAL.  THESE AGENCIES
ARE EXPECTED TO ASCERTAIN WHEN AND AGAINST WHOM PROCEEDINGS SHOULD BE
SET IN MOTION AND TO TAKE THE LEAD IN FOLLOWING THROUGH TO EFFECTIVE
RESULTS.  IT IS EXPECTED THAT THIS COMBINATION OF DUTY AND POWER ALWAYS
WILL RESULT IN EARNEST AND EAGER ACTION BUT IT IS FEARED THAT IT MAY
SOMETIMES RESULT IN HARSH AND OVERZEALOUS ACTION. 

TO PROTECT AGAINST MISTAKEN OR ARBITRARY ORDERS, JUDICIAL REVIEW IS
PROVIDED.  ITS FUNCTION IS DISPASSIONATE AND DISINTERESTED
ADJUDICATION, UNMIXED WITH ANY CONCERN AS TO THE SUCCESS OF EITHER
PROSECUTION OR DEFENSE.  COURTS ARE NOT EXPECTED TO START WHEELS MOVING
OR TO FOLLOW UP JUDGMENTS.  COURTS NEITHER HAVE, NOR NEED, SLEUTHS TO
DIG UP EVIDENCE, STAFFS TO ANALYZE REPORTS, OR PERSONNEL TO PREPARE
PROSECUTIONS FOR CONTEMPTS.  INDEED, WHILE SOME SITUATIONS FORCE THE
JUDGE TO PASS ON CONTEMPT ISSUES WHICH HE HIMSELF RAISES, IT IS TO BE
REGRETTED WHENEVER A COURT IN ANY SENSE MUST BECOME PROSECUTOR.  THOSE
OCCASIONS SHOULD NOT BE NEEDLESSLY MULTIPLIED BY DENYING INVESTIGATIVE
AND PROSECUTIVE POWERS TO OTHER LAWFUL AGENCIES. 

THE COURT IN THIS CASE ADVISEDLY LEFT IT TO THE COMMISSION TO RECEIVE
THE REPORT OF COMPLIANCE AND TO INSTITUTE ANY CONTEMPT PROCEEDINGS. 
THIS WAS IN HARMONY WITH OUR SYSTEM.  WHEN THE PROCESS OF ADJUDICATION
IS COMPLETE, ALL JUDGMENTS ARE HANDED OVER TO THE LITIGANT OR EXECUTIVE
OFFICERS, SUCH AS THE SHERIFF OR MARSHAL, TO EXECUTE.  STEPS WHICH THE
LITIGANT OR EXECUTIVE DEPARTMENT LAWFULLY TAKES FOR THEIR ENFORCEMENT
ARE A VINDICATION RATHER THAN A USURPATION OF THE COURT'S POWER.  IN
THE CASE BEFORE US, IT IS TRUE THAT THE COMMISSION'S CEASE AND DESIST
ORDER WAS MERGED IN THE COURT'S DECREE; BUT THE COURT NEITHER ASSUMED
TO ITSELF NOR DENIED TO THE COMMISSION THAT AGENCY'S DUTY TO INFORM
ITSELF AND PROTECT COMMERCE AGAINST CONTINUED OR RENEWED UNLAWFUL
PRACTICE. 

THIS CASE ILLUSTRATES THE DIFFERENCE BETWEEN THE JUDICIAL FUNCTION
AND THE FUNCTION THE COMMISSION IS ATTEMPTING TO PERFORM.  THE
RESPONDENTS ARGUE THAT SINCE THE COMMISSION MADE NO CHARGE OF VIOLATION
EITHER OF THE DECREE OR THE STATUTE, IT IS ENGAGED IN A MERE "FISHING
EXPEDITION" TO SEE IF IT CAN TURN UP EVIDENCE OF GUILT.  WE WILL ASSUME
FOR THE ARGUMENT THAT THIS IS SO.  COURTS HAVE OFTEN DISAPPROVED THE
EMPLOYMENT OF THE JUDICIAL PROCESS IN SUCH AN ENTERPRISE.  FEDERAL
JUDICIAL POWER ITSELF EXTENDS ONLY TO ADJUDICATION OF CASES AND
CONTROVERSIES AND IT IS NATURAL THAT ITS INVESTIGATIVE POWERS SHOULD BE
JEALOUSLY CONFINED TO THESE ENDS.  THE JUDICIAL SUBPOENA POWER NOT ONLY
IS SUBJECT TO SPECIFIC CONSTITUTIONAL LIMITATIONS, WHICH ALSO APPLY TO
ADMINISTRATIVE ORDERS, SUCH AS THOSE AGAINST SELF-INCRIMINATION,
UNREASONABLE SEARCH AND SEIZURE, AND DUE PROCESS OF LAW, BUT ALSO IS
SUBJECT TO THOSE LIMITATIONS INHERENT IN THE BODY THAT ISSUES THEM
BECAUSE OF THE PROVISIONS OF THE JUDICIARY ARTICLE OF THE
CONSTITUTION. 

WE MUST NOT DISGUISE THE FACT THAT SOMETIMES, ESPECIALLY EARLY IN THE
HISTORY OF THE FEDERAL ADMINISTRATIVE TRIBUNAL, THE COURTS WERE
PERSUADED TO ENGRAFT JUDICIAL LIMITATIONS UPON THE ADMINISTRATIVE
PROCESS.  THE COURTS COULD NOT GO FISHING, AND SO IT FOLLOWED NEITHER
COULD ANYONE ELSE.  ADMINISTRATIVE INVESTIGATIONS FELL BEFORE THE
COLORFUL AND NOSTALGIC SLOGAN "NO FISHING EXPEDITIONS."  IT MUST NOT BE
FORGOTTEN THAT THE ADMINISTRATIVE PROCESS AND ITS AGENCIES ARE RELATIVE
NEWCOMERS IN THE FIELD OF LAW AND THAT IT HAS TAKEN AND WILL CONTINUE
TO TAKE EXPERIENCE AND TRIAL AND ERROR TO FIT THIS PROCESS INTO OUR
SYSTEM OF JUDICATURE.  MORE RECENT VIEWS HAVE BEEN MORE TOLERANT OF IT
THAN THOSE WHICH UNDERLAY MANY OLDER DECISIONS.  COMPARE JONES V.
SECURITIES & EXCHANGE COMM'N, 298 U.S. 1, WITH UNITED STATES V. MORGAN,
307 U.S. 183, 191.    THE ONLY POWER THAT IS INVOLVED HERE IS THE POWER
TO GET INFORMATION FROM THOSE WHO BEST CAN GIVE IT AND WHO ARE MOST
INTERESTED IN NOT DOING SO.  BECAUSE JUDICIAL POWER IS RELUCTANT IF NOT
UNABLE TO SUMMON EVIDENCE UNTIL IT IS SHOWN TO BE RELEVANT TO ISSUES IN
LITIGATION, IT DOES NOT FOLLOW THAT AN ADMINISTRATIVE AGENCY CHARGED
WITH SEEING THAT THE LAWS ARE ENFORCED MAY NOT HAVE AND EXERCISE POWERS
OF ORIGINAL INQUIRY.  IT HAS A POWER OF INQUISITION, IF ONE CHOOSES TO
CALL IT THAT, WHICH IS NOT DERIVED FROM THE JUDICIAL FUNCTION.  IT IS
MORE ANALOGOUS TO THE GRAND JURY, WHICH DOES NOT DEPEND ON A CASE OR
CONTROVERSY FOR POWER TO GET EVIDENCE BUT CAN INVESTIGATE MERELY ON
SUSPICION THAT THE LAW IS BEING VIOLATED, OR EVEN JUST BECAUSE IT WANTS
ASSURANCE THAT IT IS NOT.  WHEN INVESTIGATIVE AND ACCUSATORY DUTIES ARE
DELEGATED BY STATUTE TO AN ADMINISTRATIVE BODY, IT, TOO, MAY TAKE STEPS
TO INFORM ITSELF AS TO WHETHER THERE IS PROBABLE VIOLATION OF THE LAW. 

OF COURSE, THE COMMISSION CANNOT INTRUDE UPON OR USURP THE COURT'S
FUNCTION OF ADJUDICATION.  THE DECREE IS ALWAYS WHAT THE COURT MAKES
IT; THE COURT'S JURISDICTION TO REVIEW IS AND REMAINS EXCLUSIVE, ITS
JUDGMENT FINAL.  WHAT THE COMMISSION HAS DONE, HOWEVER, IS NOT TO
MODIFY BUT TO FOLLOW UP THIS DECREE.  IT HAS NOT ASKED THIS REPORT IN
THE NAME OF THE COURT, OR IN RELIANCE UPON JUDICIAL POWERS, BUT IN
RELIANCE UPON ITS OWN LAW-ENFORCING POWERS. 

THAT CONGRESS DID NOT REGARD IT AS A JUDICIAL FUNCTION TO INVESTIGATE
COMPLIANCE WITH COURT DECREES, AT LEAST INITIALLY, IS SHOWN BY ITS
ACTION AS TO OTHER ANTITRUST DECREES.  SECTION 6(C) OF THE ACT UNDER
CONSIDERATION SPECIFICALLY AUTHORIZES THE COMMISSION, ON ITS OWN
INITIATIVE AND WITHOUT LEAVE OF COURT, TO INVESTIGATE COMPLIANCE WITH
FINAL DECREES IN CASES PROSECUTED BY THE ATTORNEY GENERAL AND NOT
INVOLVING THE COMMISSION AS A PARTY.  CONGRESS OBVIOUSLY DEEMED IT A
FUNCTION OF THE COMMISSION, RATHER THAN OF THE COURTS, TO PROBE
COMPLIANCE WITH SUCH DECREES, EVEN WHEN IT HAD NO PART IN OBTAINING
THEM.  IT SURELY WAS NOT BECAUSE OF FEAR IT WOULD INVOLVE COLLISION
WITH THE JUDICIAL FUNCTION THAT CONGRESS OMITTED EXPRESS AUTHORIZATION
FOR THE COMMISSION TO FOLLOW UP DECREES IN ITS OWN CASES.  EXPRESS
GRANT OF POWER WOULD ONLY SEEM NECESSARY AS TO DECREES IN WHICH THE
COMMISSION HAD NO OTHER INTEREST. 

WHETHER THE COMMISSION HAS INVADED ANY PRIVATE RIGHT OF RESPONDENTS,
WE CONSIDER UNDER LATER RUBRICS.  OUR ONLY CONCERN UNDER THE PRESENT
HEADING IS WHETHER THE COMMISSION'S ORDER INFRINGES PREROGATIVES OF THE
COURT.  WE HOLD IT DOES NOT. 

II.  VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT. 

THE ADMINISTRATIVE PROCEDURE ACT WAS FRAMED AGAINST A BACKGROUND OF
RAPID EXPANSION OF THE ADMINISTRATIVE PROCESS AS A CHECK UPON
ADMINISTRATORS WHOSE ZEAL MIGHT OTHERWISE HAVE CARRIED THEM TO EXCESSES
NOT CONTEMPLATED IN LEGISLATION CREATING THEIR OFFICES.  IT CREATED
SAFEGUARDS EVEN NARROWER THAN THE CONSTITUTIONAL ONES, AGAINST
ARBITRARY OFFICIAL ENCROACHMENT ON PRIVATE RIGHTS. 

THUS SEC. 3(A) OF THE ACT REQUIRES EVERY AGENCY TO WHICH IT APPLIES,
WHICH INCLUDES THE FEDERAL TRADE COMMISSION, TO PUBLISH IN THE FEDERAL
REGISTER CERTAIN STATEMENTS OF ITS RULES, ORGANIZATION AND PROCEDURE,
"INCLUDING THE NATURE AND REQUIREMENTS OF ALL FORMAL OR INFORMAL
PROCEDURES AVAILABLE," AND ADDS THAT, "NO PERSON SHALL IN ANY MANNER BE
REQUIRED TO RESORT TO ORGANIZATION OR PROCEDURE NOT SO PUBLISHED."  IN
ADDITION SEC. 6(B) PROSCRIBES ANY REQUIREMENT OF A REPORT OR OTHER
INVESTIGATIVE DEMAND "IN ANY MANNER OR FOR ANY PURPOSE EXCEPT AS
AUTHORIZED BY LAW." 

PRINCIPALLY ON THE BASIS OF THESE TWO SECTIONS RESPONDENTS CONTEND
THAT THE CURRENT ORDER CANNOT BE ENFORCED EXCEPT IN VIOLATION OF THE
ADMINISTRATIVE PROCEDURE ACT.  HAVE THE RESPONDENTS BEEN ORDERED TO
COMPLY WITH PROCEDURE OF WHICH THEY WERE NOT PUT ON NOTICE BY
PUBLICATION IN THE FEDERAL REGISTER?  AND TO THE EXTENT THAT THE
PROCEDURE HAD BEEN DEFINED AND PUBLISHED, WAS IT AUTHORIZED BY LAW? 

THE PERTINENT PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT BECAME
EFFECTIVE SEPTEMBER 11, 1946.  ON DECEMBER 11, 1946, THE FEDERAL TRADE
COMMISSION PUBLISHED IN THE FEDERAL REGISTER ITS RULES OF PRACTICE, 11
FED. REG. 14233-14239.  THE COMMISSION'S RULE XXVI, ID., 14237,
REPUBLISHED WITHOUT CHANGE IN 12 FED. REG. 5444, 5448, SETS THE TIME
LIMIT FOR FILING INITIAL REPORTS OF COMPLIANCE WITH COMMISSION ORDERS
AND ASSERTS THE COMMISSION'S RIGHT TO REQUIRE, WITHIN ITS SOUND
DISCRETION, THE FILING OF FURTHER COMPLIANCE REPORTS THEREAFTER.  FN4
IN SEC. 7.12 OF ITS STATEMENT OF ORGANIZATION, PROCEDURES, AND
FUNCTIONS, 12 FED. REG. 5450, 5452, THE COMMISSION RESTATED ITS RIGHT
TO REQUIRE BY ORDER "SUCH SUPPLEMENTAL REPORTS OF COMPLIANCE AS IT
CONSIDERS WARRANTED," AND DEFINED THE CONTENTS OF SUCH A REPORT.  FN5 

WE CONCLUDE THAT THE COMMISSION'S PUBLISHED RULE XXVI ANNOUNCED THE
RIGHT IT CLAIMS IN THIS CASE TO DEMAND OF A PARTY AGAINST WHOM AN
ENFORCEMENT DECREE HAS BEEN ENTERED THAT IT "FILE WITH THE COMMISSION,
FROM TIME TO TIME THEREAFTER, FURTHER REPORTS IN WRITING, SETTING FORTH
IN DETAIL THE MANNER AND FORM IN WHICH THEY ARE COMPLYING WITH SAID
ORDER  ...  "  TAKEN TOGETHER WITH THE COMMISSION'S STATEMENT OF
ORGANIZATION, PROCEDURES, AND FUNCTIONS, SUPRA, IF INDEED NOT BY
ITSELF, RULE XXVI AMPLY MET THE REQUIREMENTS OF SEC. 3(A) OF THE
ADMINISTRATIVE PROCEDURE ACT. 

RESPONDENTS HARDLY CHALLENGE THIS CONCLUSION.  THEIRS IS THE MORE
SUBTLE ARGUMENT THAT REQUIREMENT OF SUPPLEMENTAL REPORTS FOLLOWING
COURT ENFORCEMENT OF A COMMISSION ORDER IS UNAUTHORIZED BY STATUTE AND
ULTRA VIRES, SO THAT NO VALID NOTICE OF RULE XXVI HAD BEEN OR COULD BE
GIVEN, AS REQUIRED BY SEC. 3(A) OF THE ADMINISTRATIVE PROCEDURE ACT. 
ALSO, IT IS SAID TO BE IN DIRECT VIOLATION OF SEC. 6(B) OF THAT ACT. 
THIS LEADS TO THE QUESTION OF STATUTORY AUTHORITY FOR THE ORDER TO
REPORT, A QUESTION WE MUST DETERMINE EVEN APART FROM CONSIDERATION OF
THE ADMINISTRATIVE PROCEDURE ACT.  ACCORDINGLY WE TURN TO THE FEDERAL
TRADE COMMISSION ACT ITSELF TO SEE WHETHER IT CONTAINS STATUTORY
AUTHORITY FOR THE COMMISSION'S RULE XXVI, AS WELL AS FOR ITS ORDER HERE
SOUGHT TO BE ENFORCED, ISSUED, AS IT WAS, PURSUANT TO THE PROCEDURES
PROCLAIMED IN THAT RULE.  IF WE FIND SUCH STATUTORY AUTHORITY, WE MUST
CONCLUDE THAT THE OBJECTIONS UNDER THE ADMINISTRATIVE PROCEDURE ACT ARE
TAKEN IN VAIN. 

III.  STATUTORY AUTHORITY TO REQUIRE REPORTS. 

THE COURT OF APPEALS FOUND THE COMMISSION TO BE WITHOUT STATUTORY
AUTHORITY TO REQUIRE ADDITIONAL REPORTS AS TO COMPLIANCE.  SECTION 6 OF
THE FEDERAL TRADE COMMISSION ACT, IT THOUGHT, COULD NOT BE INVOKED IN
CONNECTION WITH A DECREE SOUGHT AND ENTERED PURSUANT TO SEC. 5, WHICH
TO WHOLLY DIFFERENT SITUATIONS.  SECTION 6, SO IT WAS HELD, AUTHORIZED
REQUIREMENT ONLY OF "SPECIAL REPORTS" SUPPLEMENTAL TO "ANNUAL REPORTS"
AND COULD NOT BE AUTHORITY FOR REQUIRING SPECIAL REPORTS SUPPLEMENTAL
TO A REPORT OF COMPLIANCE REQUIRED BY COURT DECREE IN A SEC. 5 CASE. 

AT THE ROOT OF THIS POSITION LIES THE ELABORATE AND PLAUSIBLE
ARGUMENT OF RESPONDENTS THAT SECS. 5 AND 6 OF THE ACT SET UP SELF
SUFFICIENT, INDEPENDENT AND EXCLUSIVE PROCEDURES FOR DEALING WITH
DIFFERENT MATTERS AND THAT THEREFORE NEITHER SECTION CAN BE SUPPORTED
OR AIDED BY THE OTHER.  RESPONDENTS ALSO SAY THAT THE PRESENT USE OF
THE ASSERTED POWER IS NOVEL AND UNPRECEDENTED IN COMMISSION PRACTICE
AND INTRODUCES A NEW METHOD OF INVESTIGATING COMPLIANCE.  RESPONDENTS
ARE NOT WITHOUT STATEMENTS BY THE COMMISSION OR ITS OFFICIALS, DICTA
FROM JUDICIAL OPINIONS, VIEWS OF TEXT WRITERS AND FACTS OF LEGISLATIVE
HISTORY WHICH GIVE SOME SUPPORT TO THIS THEORY.  BUT THIS COURT NEVER
BEFORE HAS BEEN CALLED UPON TO DEAL CONSCIOUSLY AND SQUARELY WITH THE
SUBJECT. 

THE FACT THAT POWERS LONG HAVE BEEN UNEXERCISED WELL MAY CALL FOR
CLOSE SCRUTINY AS TO WHETHER THEY EXIST; BUT IF GRANTED, THEY ARE NOT
LOST BY BEING ALLOWED TO LIE DORMANT, ANY MORE THAN NONEXISTENT POWERS
CAN BE PRESCRIPTED BY AN UNCHALLENGED EXERCISE.  WE KNOW THAT
UNQUESTIONED POWERS ARE SOMETIMES UNEXERCISED FROM LACK OF FUNDS,
MOTIVES OF EXPEDIENCY, OR THE COMPETITION OF MORE IMMEDIATELY IMPORTANT
CONCERNS.  WE FIND NO BASIS FOR HOLDING THAT ANY POWER EVER GRANTED TO
THE TRADE COMMISSION HAS BEEN FORFEITED BY NONUSER. 

THE COMMISSION'S ORGANIC ACT, SEC. 5, COMPREHENSIVELY PROVIDES
SUBSTANTIVE AND PROCEDURAL RULES FOR CHECKING UNFAIR METHODS OF
COMPETITION.  THE PROCEDURE IS COMPLETE FROM COMPLAINT AND SERVICE OF
PROCESS THROUGH FINAL ORDER, COURT REVIEW, AND ENFORCEMENT PROCEEDINGS
TO RECOVER PENALTIES WHICH ARE NOT THOSE HERE SUED FOR.  THIS ENTIRE
SUBJECT OF UNFAIR COMPETITION, IT IS TRUE, CAME INTO THE BILL LATE IN
ITS LEGISLATIVE HISTORY AND DEALT WITH A COMMERCIAL EVIL QUITE
DIFFERENT FROM THE TARGET OF PRIOR ANTITRUST LAWS.  IT IS TO BE NOTED,
HOWEVER, THAT ALTHOUGH COMPLETE OTHERWISE, THIS SECTION CONFERS NO
POWER TO INVESTIGATE THIS OR ANY OTHER MATTER.  THAT POWER, WITHOUT
WHICH ALL OTHERS WOULD BE VAIN, MUST BE FOUND IN OTHER SECTIONS OF THE
ACT.  THE COMMISSION, FOR POWER TO INVESTIGATE COMPLIANCE WITH A SEC. 5
ORDER, HAS TURNED TO SEC. 6, WHICH AUTHORIZES IT TO REQUIRE CERTAIN
REPORTS BUT IS NOT EXPRESSLY APPLICABLE TO A SEC. 5 CASE.  RESPONDENTS
SAY IT MIGHT BETTER HAVE TURNED TO SEC. 9, WHICH AUTHORIZES IT TO SEND
INVESTIGATORS TO EXAMINE THEIR BOOKS, COPY DOCUMENTS AND ISSUE
SUBPOENAS, AND WHICH IS EXPRESSLY APPLICABLE TO SEC. 5 PROCEEDINGS. 

AND WITH EXCEPTIONS NOT MATERIAL, THE POWER "TO INVESTIGATE FROM TIME
TO TIME THE ORGANIZATION, BUSINESS, CONDUCT, PRACTICES, AND MANAGEMENT
OF ANY CORPORATION ENGAGED IN COMMERCE,  ...  AND ITS RELATION TO OTHER
CORPORATIONS AND TO INDIVIDUALS, ASSOCIATIONS, AND PARTNERSHIPS."  IT
ALSO AUTHORIZES THE COMMISSION "TO REQUIRE, BY GENERAL OR SPECIAL
ORDERS, CORPORATIONS ENGAGED IN COMMERCE  ...  TO FILE WITH THE
COMMISSION IN SUCH FORM AS THE COMMISSION MAY PRESCRIBE ANNUAL OR
SPECIAL, OR BOTH ANNUAL AND SPECIAL, REPORTS OR ANSWERS IN WRITING TO
SPECIFIC QUESTIONS, FURNISHING TO THE COMMISSION SUCH INFORMATION AS IT
MAY REQUIRE AS TO THE ORGANIZATION, BUSINESS, CONDUCT, PRACTICES,
MANAGEMENT, AND RELATION TO OTHER CORPORATIONS, PARTNERSHIPS, AND
INDIVIDUALS OF THE RESPECTIVE CORPORATIONS FILING SUCH REPORTS OR
ANSWERS IN WRITING." 

TO ONE INFORMED OF NO FACT APART FROM THIS TEXT, IT WOULD APPEAR TO
GRANT AMPLE POWER TO ORDER THE REPORTS HERE IN QUESTION.  RESPONDENTS
ARE IN THE CLASS SUBJECT TO INQUIRY, THE CALL IS FOR WHAT APPEARS TO BE
A SPECIAL REPORT AND THE MATTER TO BE REPORTED WOULD SEEM TO BE AS TO
BUSINESS CONDUCT AND PRACTICES ABOUT WHICH THE COMMISSION IS AUTHORIZED
TO INQUIRE.  BUT RESPONDENTS ADVANCE SEVERAL ARGUMENTS TO PERSUADE US
THAT THIS SEEMINGLY COMPREHENSIVE POWER IS SUBJECT TO LIMITATIONS NOT
EVIDENT IN THE TEXT. 

RESPONDENTS DERIVE FROM LEGISLATIVE HISTORY THEIR CONTENTION THAT
CONGRESS DIVIDED THE DUTIES AND POWERS OF THE COMMISSION INTO TWO
SEPARATE CATEGORIES, ONE IN SEC. 6 MERELY RE-ENACTING THE OLD POWERS OF
INVESTIGATION AND PUBLICITY IN ANTITRUST MATTERS - "ESSENTIALLY A MERE
CONTINUANCE OF THE FORMER POWERS OF THE OLD BUREAU OF CORPORATIONS." 
THE OTHER WAS A NEW UNFAIR-COMPETITION POWER, SELF-CONTAINED AND SEALED
OFF IN SEC. 5.  IT IS ARGUED THAT THE REPORTS SET FORTH IN SEC. 6 CAN
BE REQUIRED ONLY "IN SUPPORT OF GENERAL ECONOMIC SURVEYS AND NOT IN AID
OF ENFORCEMENT PROCEEDINGS UNDER  ...  SECTION 5." 

WHILE WE FIND A GOOD DEAL WHICH WOULD WARRANT OUR CONCLUDING THAT
SEC. 6 WAS FRAMED WITH THE PRE-EXISTING ANTITRUST LAWS IN MIND, AND IN
THE EXPECTATION THAT THE INFORMATION PROCURED WOULD BE CHIEFLY USEFUL
IN REPORTS TO THE PRESIDENT, THE CONGRESS, OR THE ATTORNEY GENERAL, WE
FIND NOTHING THAT WOULD DENY ITS USE FOR ANY PURPOSE WITHIN THE DUTIES
OF THE COMMISSION, INCLUDING A SEC. 5 PROCEEDING.  A CONSTRUCTION OF
SUCH AN ACT THAT WOULD ALLOW INFORMATION TO BE OBTAINED FOR ONLY A PART
OF A COMMISSION'S FUNCTIONS AND WOULD REQUIRE THE COMMISSION TO PURSUE
THE REST OF ITS DUTIES AS IF THE INFORMATION DID NOT EXIST WOULD BE
UNUSUAL, TO SAY THE LEAST.  THE INFORMATION WAS SUCH AS THE COMMISSION
WAS AUTHORIZED TO OBTAIN AND WE THINK IT COULD BE REQUIRED FOR USE IN
DETERMINING WHETHER THERE HAD BEEN PROPER COMPLIANCE WITH THE COURT'S
DECREE IN A SEC. 5 CASE. 

IT IS ARGUED, HOWEVER, AND THE COURT BELOW HAS AGREED, THAT THE
"SPECIAL REPORT" AUTHORIZED BY STATUTE DOES NOT EMBRACE THE ONE HERE
ASKED AS TO THE METHOD OF COMPLIANCE WITH THE DECREE.  WE FIND NOTHING
IN THE LEGISLATIVE HISTORY THAT WOULD JUSTIFY SO LIMITING THE MEANING
OF SPECIAL REPORTS, OR HOLDING THAT THE REPORT HERE ASKED IS NOT SUCH A
ONE.  THE VERY HOUSE COMMITTEE REPORT (H.R. REP. NO. 533, 63D CONG., 2D
SESS.) WHICH THE COURT BELOW THOUGHT SUSTAINED RESPONDENTS' CONTENTION,
WE READ IN ITS CONTEXT TO SUPPORT THE COMMISSION.  SPEAKING OF WHAT
BECAME THIS SECTION, THE REPORT SAID, "THE COMMISSION, UNDER THIS
ADVISABLE.  BY THIS MEANS, IF THE ORDINARY DATA FURNISHED BY A
CORPORATION IN ITS ANNUAL REPORTS DOES NOT ADEQUATELY DISCLOSE ITS
ORGANIZATION, FINANCIAL CONDITION, BUSINESS PRACTICES, OR RELATION TO
OTHER CORPORATIONS, THERE CAN BE OBTAINED BY A SPECIAL REPORT SUCH
ADDITIONAL INFORMATION AS THE COMMISSION MAY DEEM NECESSARY."  ID., AT
P. 4.  AN ANNUAL REPORT OF A CORPORATION IS A RECURRENT AND RELATIVELY
STANDARDIZED AFFAIR.  THE SPECIAL REPORT WAS USED TO ENABLE THE
COMMISSION TO ELICIT ANY INFORMATION BEYOND THE ORDINARY DATA OF A
ROUTINE ANNUAL REPORT.  IF THE REPORT ASKED HERE IS NOT A SPECIAL
REPORT, WE WOULD BE HARD PUT TO DEFINE ONE.    NOR DOES THE FACT THAT
SEC. 5 APPLIES TO INDIVIDUALS, PARTNERSHIPS, AND CORPORATIONS, WHILE
SECS. 6(B) AND 10 APPLY ONLY TO CORPORATIONS, LEAD US TO CONCLUDE THAT
THE ACT MUST NOT BE READ AS AN INTEGRATED WHOLE.  THE ARGUMENT THAT,
BECAUSE THE REPORTING AND PENALTY PROVISIONS OF THE LATTER EXTEND ONLY
TO CORPORATIONS THEY MUST NOT BE INVOKED TO IMPLEMENT, AS AGAINST
CORPORATIONS, A SEC. 5 PROCEEDING WHICH CONTEMPLATES ACTION AGAINST
PERSONS AND PARTNERSHIPS AS WELL, WOULD HAVE FORCE WERE THERE NOT SOUND
REASON FOR MORE DRASTIC POWERS TO COMPEL DISCLOSURE FROM CORPORATIONS
THAN FROM NATURAL PERSONS.  WHAT THE FORMER MAY BE COMPELLED TO
DISCLOSE WITHOUT OBJECTION THE LATTER MAY WITHHOLD, OR REVEAL ONLY
AFTER EXACTING THE PRICE OF IMMUNITY FROM PROSECUTION.  CORPORATIONS
NOT ONLY HAVE NO CONSTITUTIONAL IMMUNITY FROM SELF-INCRIMINATION, BUT
THE DISPARITY BETWEEN ARTIFICIAL AND NATURAL PERSONS IS SO SIGNIFICANT
THAT DIFFERING TREATMENT CAN RARELY BE URGED AS AN OBJECTION TO A
PARTICULAR CONSTRUCTION OF A STATUTE.  MOREOVER, CONGRESS MAY HAVE
CONSIDERED THAT THE VOLUME OR PROPORTION OF UNINCORPORATED BUSINESS OR
THE RELATIVELY SMALL SIZE OF INDIVIDUALLY OWNED ENTERPRISES, OR EVEN A
LESSER CAPACITY AND DISPOSITION TO RESIST MADE IT POSSIBLE TO OMIT
PERSONS FROM DUTIES AND PENALTIES IMPOSED ON ARTIFICIAL COMBINATIONS OF
CAPITAL. 

WE CONCLUDE THAT THE AUTHORITY OF THE COMMISSION UNDER SEC. 6 TO
REQUIRE SPECIAL REPORTS OF CORPORATIONS INCLUDES SPECIAL REPORTS OF THE
MANNER IN WHICH THEY ARE COMPLYING WITH DECREES ENFORCING SEC. 5 CEASE
AND DESIST ORDERS. 

IV.  RIGHTS UNDER FOURTH AND FIFTH AMENDMENTS. 

THE COMMISSION'S ORDER IS CRITICIZED UPON GROUNDS THAT THE ORDER
TRANSGRESSES THE FOURTH AMENDMENT'S PROSCRIPTION OF UNREASONABLE
SEARCHES AND SEIZURES AND THE FIFTH AMENDMENT'S DUE PROCESS OF LAW
CLAUSE. 

IT IS UNNECESSARY HERE TO EXAMINE THE QUESTION OF WHETHER A
CORPORATION IS ENTITLED TO THE PROTECTION OF THE FOURTH AMENDMENT.  CF.
OKLAHOMA PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186.  ALTHOUGH THE
"RIGHT TO BE LET ALONE - THE MOST COMPREHENSIVE OF RIGHTS AND THE RIGHT
MOST VALUED BY CIVILIZED MEN," BRANDEIS, J., DISSENTING IN OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 471, AT 478, IS NOT CONFINED LITERALLY TO
SEARCHES AND SEIZURES AS SUCH, BUT EXTENDS AS WELL TO THE ORDERLY
TAKING UNDER COMPULSION OF PROCESS, BOYD V. UNITED STATES, 116 U.S.
616, HALE V. HENKEL, 201 U.S. 43, 70, NEITHER INCORPORATED NOR
UNINCORPORATED ASSOCIATIONS CAN PLEAD AN UNQUALIFIED RIGHT TO CONDUCT
THEIR AFFAIRS IN SECRET.  HALE V. HENKEL, SUPRA; UNITED STATES V.
WHITE, 322 U.S. 694. 

WHILE THEY MAY AND SHOULD HAVE PROTECTION FROM UNLAWFUL DEMANDS MADE
IN THE NAME OF PUBLIC INVESTIGATION, CF. FEDERAL TRADE COMM'N V.
AMERICAN TOBACCO CO., 264 U.S. 298, CORPORATIONS CAN CLAIM NO EQUALITY
WITH INDIVIDUALS IN THE ENJOYMENT OF A RIGHT TO PRIVACY.  CF. UNITED
STATES V. WHITE, SUPRA.  THEY ARE ENDOWED WITH PUBLIC ATTRIBUTES.  THEY
HAVE A COLLECTIVE IMPACT UPON SOCIETY, FROM WHICH THEY DERIVE THE
PRIVILEGE OF ACTING AS ARTIFICIAL ENTITIES.  THE FEDERAL GOVERNMENT
ALLOWS THEM THE PRIVILEGE OF ENGAGING IN INTERSTATE COMMERCE.  FAVORS
FROM GOVERNMENT OFTEN CARRY WITH THEM AN ENHANCED MEASURE OF
REGULATION.  CF. GRAHAM V. BROTHERHOOD OF LOCOMOTIVE FIREMEN, 338 U.S.
232; STEELE V. LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192; TUNSTALL V.
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 323 U.S. 210; WICKARD V.
FILBURN, 317 U.S. 111, AT 129.  EVEN IF ONE WERE TO REGARD THE REQUEST
FOR INFORMATION IN THIS CASE AS CAUSED BY NOTHING MORE THAN OFFICIAL
CURIOSITY, NEVERTHELESS LAW-ENFORCING AGENCIES HAVE A LEGITIMATE RIGHT
TO SATISFY THEMSELVES THAT CORPORATE BEHAVIOR IS CONSISTENT WITH THE
LAW AND THE PUBLIC INTEREST. 

OF COURSE A GOVERNMENTAL INVESTIGATION INTO CORPORATE MATTERS MAY BE
OF SUCH A SWEEPING NATURE AND SO UNRELATED TO THE MATTER PROPERLY UNDER
INQUIRY AS TO EXCEED THE INVESTIGATORY POWER.  FEDERAL TRADE COMM'N V.
AMERICAN TOBACCO CO., SUPRA.  BUT IT IS SUFFICIENT IF THE INQUIRY IS
WITHIN THE AUTHORITY OF THE AGENCY, THE DEMAND IS NOT TOO INDEFINITE
AND THE INFORMATION SOUGHT IS REASONABLY RELEVANT.  "THE GIST OF THE
PROTECTION IS IN THE REQUIREMENT, EXPRESSED IN TERMS, THAT THE
DISCLOSURE SOUGHT SHALL NOT BE UNREASONABLE."  OKLAHOMA PRESS
PUBLISHING CO. V. WALLING, 327 U.S. 186, 208.  NOTHING ON THE FACE OF
THE COMMISSION'S ORDER TRANSGRESSED THESE BOUNDS. 

NOR DO WE CONSIDER WHETHER, FOR REASONS PECULIAR TO THESE CASES NOT
APPARENT ON THE FACE OF THE ORDERS, THESE LIMITS ARE TRANSGRESSED. 
SUCH QUESTIONS ARE NOT PRESENTED BY THE PROCEDURE FOLLOWED BY
RESPONDENTS.  BEFORE THE COURTS WILL HOLD AN ORDER SEEKING INFORMATION
REPORTS TO BE ARBITRARILY EXCESSIVE, THEY MAY EXPECT THE SUPPLICANT TO
HAVE MADE REASONABLE EFFORTS BEFORE THE COMMISSION ITSELF TO OBTAIN
REASONABLE CONDITIONS.  NEITHER RESPONDENT RAISED OBJECTION TO THE
ORDER'S SWEEP, NOR ASKED ANY MODIFICATION, CLARIFICATION OR
INTERPRETATION OF IT.  BOTH CHALLENGED, INSTEAD, POWER TO ISSUE IT.
THEIR POSITION WAS THAT THE COMMISSION HAD NO MORE AUTHORITY TO ISSUE A
REASONABLE ORDER THAN AN UNREASONABLE ONE.  THAT, TOO, WAS THE DEFENSE
TO THIS ACTION IN THE COURT BELOW. 

OF COURSE, THERE ARE LIMITS TO WHAT, IN THE NAME OF REPORTS, THE
COMMISSION MAY DEMAND.  JUST WHAT THESE LIMITS ARE WE DO NOT ATTEMPT TO
DEFINE IN THE ABSTRACT.  BUT IT IS SAFE TO SAY THAT THEY WOULD STOP THE
COMMISSION CONSIDERABLY SHORT OF THE EXTRAVAGANT EXAMPLE USED BY ONE OF
THE RESPONDENTS OF WHAT IT FEARS IF WE SUSTAIN THIS ORDER - THAT THE
COMMISSION MAY REQUIRE REPORTS FROM AUTOMOBILE COMPANIES WHICH INCLUDE
FILING AUTOMOBILES.  IN THIS CASE WE DOUBT THAT WE SHOULD READ THE
ORDER AS RESPONDENTS ASK TO REQUIRE SHIPMENT OF EXTENSIVE FILES OR
GIFTS OF EXPENSIVE BOOKS.  THIS IS NOT A NECESSARY READING CERTAINLY,
AND OTHER PARTIES TO THE DECREE SEEM TO HAVE BEEN ABLE TO SATISFY ITS
REQUIREMENTS. 

IF RESPONDENTS HAD OBJECTED TO THE TERMS OF THE ORDER, THEY WOULD
HAVE PRESENTED OR AT LEAST OFFERED TO PRESENT EVIDENCE CONCERNING ANY
RECORDS REQUIRED AND THE COST OF THEIR BOOKS, MATTERS WHICH NOW REST ON
MERE ASSERTIONS IN THEIR BRIEFS.  THE COMMISSION WOULD HAVE HAD
OPPORTUNITY TO DISCLAIM ANY INADVERTENT EXCESSES OR TO JUSTIFY THEIR
DEMANDS IN THE RECORD.  WE THINK THESE RESPONDENTS COULD HAVE OBTAINED
ANY REASONABLE MODIFICATIONS NECESSARY, BUT, IF NOT, AT LEAST COULD
HAVE MADE A RECORD THAT WOULD CONVINCE US OF THE MEASURE OF THEIR
GRIEVANCE RATHER THAN ASK US TO ASSUME IT. 

IT IS ARGUED THAT IF WE SUSTAIN THIS USE OF SEC. 6, THE POWER WILL BE
UNCONFINED AND ITS ARBITRARY EXERCISE SUBJECT TO NO JUDICIAL REVIEW OR
CONTROL, UNLESS AND UNTIL THE GOVERNMENT BRINGS SUIT, AS HERE, FOR
PENALTIES.  THE GOVERNMENT, IT IS SAID, MAY DELAY SUCH ACTION WHILE
RUINOUS PENALTIES ACCUMULATE AND DEFENDANT RUNS THE RISK THAT HIS
DEFENSES WILL NOT BE SUSTAINED.  HOWEVER, WE ARE NOT PREPARED TO SAY
THAT COURTS WOULD BE POWERLESS IF AFTER AN EFFORT TO CLARIFY OR MODIFY
SUCH AN ORDER IT STILL IS CONSIDERED TO BE SO ARBITRARY AS TO BE
UNLAWFUL AND THE GOVERNMENT PURSUES A POLICY OF ACCUMULATING PENALTIES
WHILE AVOIDING A JUDICIAL TEST BY REFUSING TO BRING ACTION TO RECOVER
THEM.  SINCE WE DO NOT THINK THIS RECORD PRESENTS THE QUESTION, WE DO
NOT UNDERTAKE TO DETERMINE WHETHER THE DECLARATORY JUDGMENT ACT, THE
ADMINISTRATIVE PROCEDURE ACT, OR GENERAL EQUITABLE POWERS OF THE COURTS
WOULD AFFORD A REMEDY IF THERE WERE SHOWN TO BE A WRONG, OR WHAT THE
CONSEQUENCES WOULD BE IF NO CHANCE IS GIVEN FOR A TEST OF REASONABLE
OBJECTIONS TO SUCH AN ORDER.  CF. OKLAHOMA OPERATING CO. V. LOVE, 252
U.S. 331.  IT IS ENOUGH TO SAY THAT, IN UPHOLDING THIS ORDER UPON THIS
RECORD, WE ARE NOT TO BE UNDERSTOOD AS HOLDING SUCH ORDERS EXEMPT FROM
JUDICIAL EXAMINATION OR AS EXTENDING A LICENSE TO EXACT AS REPORTS WHAT
WOULD NOT REASONABLY BE COMPREHENDED WITHIN THAT TERM AS USED BY
CONGRESS IN THE CONTEXT OF THIS ACT. 

THE JUDGMENT ACCORDINGLY IS REVERSED. 

FN1  THE FEDERAL TRADE COMMISSION WAS ESTABLISHED, UNDER THE FEDERAL
TRADE COMMISSION ACT, 38 STAT. 717, AS AMENDED 52 STAT. 111, 1028, 15
U.S.C. SECS. 41 ET SEQ., TO PREVENT UNFAIR METHODS OF COMPETITION AND
UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN INTERSTATE COMMERCE BY CERTAIN
PERSONS, PARTNERSHIPS OR CORPORATIONS.  UNDER SEC. 5(B) OF THAT ACT THE
COMMISSION IS EMPOWERED AND DIRECTED, FOLLOWING SUITABLE HEARING AND
DETERMINATION, TO ORDER THAT THOSE FOUND GUILTY OF SUCH PRACTICES CEASE
AND DESIST THEREFROM; AND UNDER SECS. 5(C) AND 5(D) EXCLUSIVE
JURISDICTION TO AFFIRM, ENFORCE, MODIFY, OR SET ASIDE SUCH ORDERS IS
PLACED IN THE APPROPRIATE COURT OF APPEALS, WHOSE JUDGMENT AND DECREE
ARE FINAL EXCEPT INSOFAR AS THEY MAY BE SUBJECT TO REVIEW HERE.  CIVIL
PENALTIES FOR VIOLATIONS OF CEASE AND DESIST ORDERS ARE PROVIDED FOR,
SEC. 5(1), TO BE RECOVERED IN CIVIL ACTIONS BROUGHT BY THE UNITED
STATES.  UNDER SECS. 6(A) AND 6(B) OF THE ACT, THE COMMISSION IS
AUTHORIZED TO COMPILE INFORMATION CONCERNING, AND TO INVESTIGATE, THE
ORGANIZATION, BUSINESS, CONDUCT, PRACTICES, AND MANAGEMENT OF ANY
CORPORATION WITHIN ITS JURISDICTION, AND TO REQUIRE ANY SUCH
CORPORATION TO FILE "ANNUAL OR SPECIAL, OR BOTH ANNUAL AND SPECIAL,
REPORTS OR ANSWERS IN WRITING TO SPECIFIC QUESTIONS," CONCERNING SUCH
INFORMATION.  FOR THE PURPOSES OF THE ACT, THE COMMISSION IS EMPOWERED,
IN SEC. 9, TO EXAMINE AND COPY DOCUMENTARY EVIDENCE OF ANY CORPORATION
BEING INVESTIGATED OR PROCEEDED AGAINST, AND TO REQUIRE ATTENDANCE OF
WITNESSES AND PRODUCTION OF ALL SUCH DOCUMENTARY EVIDENCE.  THE SAME
WITH THE SUBPOENA AS WELL AS OTHER PROVISIONS OF THE ACT OR ANY ORDER
OF THE COMMISSION MADE IN PURSUANCE THEREOF.  AND, FINALLY, IN SEC. 10,
IT IS PROVIDED THAT, "IF ANY CORPORATION REQUIRED BY THIS ACT TO FILE
ANY ANNUAL OR SPECIAL REPORT SHALL FAIL SO TO DO WITHIN THE TIME FIXED
BY THE COMMISSION FOR FILING THE SAME, AND SUCH FAILURE SHALL CONTINUE
FOR THIRTY DAYS AFTER NOTICE OF SUCH DEFAULT, THE CORPORATION SHALL
FORFEIT TO THE UNITED STATES THE SUM OF $100 FOR EACH AND EVERY DAY OF
THE CONTINUANCE OF SUCH FAILURE, WHICH FORFEITURE  ... SHALL BE
RECOVERABLE IN A CIVIL SUIT IN THE NAME OF THE UNITED STATES  ...  "
THE PRESENT ACTION WAS BROUGHT TO COMPEL THE FILING OF REPORTS ORDERED
BY THE COMMISSION AND FOR MONEY JUDGMENT UNDER SEC. 10 FOR RESPONDENTS'
DEFAULT TO DO SO. 

FN2  SEE NOTE 4, INFRA. 

FN3  FOR EXAMPLE, ONE OF THE RESPONDENTS FRANKLY STATES:  "  ... AT
NO TIME HAS THIS RESPONDENT ATTEMPTED TO ARGUE THAT IT WAS IMMUNE TO
INVESTIGATION BY THE FEDERAL TRADE COMMISSION SIMPLY BY VIRTUE OF THE
ORIGINAL CASE HAVING COME WITHIN THE JURISDICTION OF THE COURT OF
APPEALS.  THIS RESPONDENT ASSUMES THAT IN SOME MANNER OR OTHER THE
COMMISSION CAN, IF IT CHOOSES, CONTINUE TO POLICE THE COMPLIANCE OF
THIS RESPONDENT BY APPROPRIATE INVESTIGATORY PROCEDURES.  WHETHER OR
NOT THE APPROPRIATE PROCEDURE IS (A) BY PETITIONING THE COURT OF
APPEALS FOR PERMISSION TO INVESTIGATE THE RESPONDENT WITH A VIEW TO
POSSIBLE CONTEMPT OR SECTION 5(1) PROCEEDINGS, (B) BY AN ASSERTION OF A
RIGHT OF INVESTIGATION UNDER SECTION 9, EVEN THOUGH IT BE AN
INVESTIGATION SUPPLEMENTAL TO A COURT OF APPEALS DECREE, OR (C) BY AN
ASSERTION OF AN ALLEGED INHERENT RIGHT OF INVESTIGATION UNDER SECTION
5, IS A MATTER OF LAW NOT AT ISSUE IN THIS CASE, AND IT REPRESENTS AN
ISSUE AS TO WHICH THIS RESPONDENT AT THE MOMENT IS COMPLETELY
INDIFFERENT.  ...  " 

FN4  "SEC.  2.26 REPORTS SHOWING COMPLIANCE WITH ORDERS AND WITH
STIPULATIONS.  (A)  IN EVERY CASE WHERE AN ORDER TO CEASE AND DESIST IS
ISSUED BY THE COMMISSION FOR THE PURPOSE OF PREVENTING VIOLATIONS OF
LAW AND IN EVERY INSTANCE WHERE THE COMMISSION APPROVES AND ACCEPTS A
STIPULATION IN WHICH A PARTY AGREES TO CEASE AND DESIST FROM THE
UNLAWFUL METHODS, ACTS OR PRACTICES INVOLVED, THE RESPONDENTS NAMED IN
SUCH ORDERS AND THE PARTIES SO STIPULATING SHALL FILE WITH THE
COMMISSION, WITHIN SIXTY DAYS OF THE SERVICE OF SUCH ORDER AND WITHIN
SIXTY DAYS OF THE APPROVAL OF SUCH STIPULATION, A REPORT, IN WRITING,
SETTING FORTH IN DETAIL THE MANNER AND FORM IN WHICH THEY HAVE COMPLIED
WITH SAID ORDER OR WITH SAID STIPULATION; PROVIDED, HOWEVER, THAT IF
WITHIN THE SAID SIXTY (60) DAY PERIOD RESPONDENT SHALL FILE PETITION
FOR REVIEW IN A CIRCUIT COURT OF APPEALS, THE TIME FOR FILING REPORT OF
COMPLIANCE WILL BEGIN TO RUN DE NOVO FROM THE FINAL JUDICIAL
DETERMINATION  ... 

"(B)  WITHIN ITS SOUND DISCRETION, THE COMMISSION MAY REQUIRE ANY
RESPONDENT UPON WHOM SUCH ORDER HAS BEEN SERVED AND ANY PARTY ENTERING
INTO SUCH STIPULATION, TO FILE WITH THE COMMISSION, FROM TIME TO TIME
THEREAFTER, FURTHER REPORTS IN WRITING, SETTING FORTH IN DETAIL THE
MANNER AND FORM IN WHICH THEY ARE COMPLYING WITH SAID ORDER OR WITH
SAID STIPULATION.  ...  " 

FN5  "SEC.  7.12  COMPLIANCE AND ENFORCEMENT.  (A)  REPORTS OF
COMPLIANCE WITH ORDERS TO CEASE AND DESIST ARE REQUIRED IN ACCORDANCE
WITH THE PROVISIONS OF SEC. 2.26 OF THE RULES OF PRACTICE.  THE
COMMISSION MAY BY ORDER REQUIRE SUCH SUPPLEMENTAL REPORTS OF COMPLIANCE
AS IT CONSIDERS WARRANTED.  REPORTS OF COMPLIANCE MUST CONSIST OF A
FULL STATEMENT SHOWING THE MANNER AND FORM IN WHICH THE ORDER HAS BEEN
COMPLIED WITH.  MERE STATEMENTS THAT THE RESPONDENT IS NOT VIOLATING
THE ORDER ARE NOT ACCEPTABLE.  A FACTUAL SHOWING IS REQUIRED SUFFICIENT
TO ENABLE THE COMMISSION TO APPRAISE THE MANNER AND FORM OF
COMPLIANCE. 

"(B)  AFTER AN ORDER TO CEASE AND DESIST ISSUED BY THE COMMISSION
PURSUANT TO THE FEDERAL TRADE COMMISSION ACT HAS BECOME FINAL AS
PROVIDED FOR UNDER SECTION 5 OF THAT ACT, AND THE COMMISSION HAS REASON
TO BELIEVE THAT A RESPONDENT HAS VIOLATED SUCH ORDER, IT SHALL CERTIFY
THE FACTS CONCERNING THE VIOLATION TO THE ATTORNEY GENERAL, WHO MAY
INSTITUTE A SUIT IN ONE OF THE DISTRICT COURTS OF THE UNITED STATES FOR
THE RECOVERY OF CIVIL PENALTIES AS PROVIDED IN THE ACT.  IN PROCEEDINGS
UNDER THE FEDERAL TRADE COMMISSION ACT, WHERE A CIRCUIT COURT OF
APPEALS OF THE UNITED STATES HAS BY DECREE COMMANDED OBEDIENCE TO THE
COMMISSION'S ORDER, ENFORCEMENT MAY BE ACCOMPLISHED BY WAY OF CONTEMPT
PROCEEDINGS IN THE CIRCUIT COURT.  WITH RESPECT TO ORDERS UNDER THE
VARIOUS PROVISIONS OF THE CLAYTON ACT, ENFORCEMENT MUST BE ACCOMPLISHED
BY WAY OF CONTEMPT PROCEEDINGS.  ...  "    MR. JUSTICE DOUGLAS AND MR.
JUSTICE MINTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF THESE
CASES. 
..END :











WISSNER V. WISSNER, 338 U.S. 655 


NO. 119.  ARGUED DECEMBER 6-7, 1949.  - DECIDED FEBRUARY 6, 1950.  - 89
CAL. APP.2D 759, 201 P.2D 837, REVERSED. 


AN INSURED UNDER A NATIONAL SERVICE LIFE INSURANCE POLICY, WHO WAS
DOMICILED IN CALIFORNIA, AS WAS HIS WIFE, DESIGNATED HIS MOTHER AS
PRINCIPAL BENEFICIARY AND HIS FATHER AS CONTINGENT BENEFICIARY. 
PREMIUMS ON THE POLICY WERE PAID FROM THE INSURED'S ARMY PAY.  SINCE
HIS DEATH THE PROCEEDS OF THE POLICY WERE BEING PAID TO HIS MOTHER IN
MONTHLY INSTALLMENTS.  THE INSURED'S WIDOW BROUGHT SUIT IN A CALIFORNIA
COURT, ALLEGING THAT, UNDER THE STATE COMMUNITY PROPERTY LAW, SHE WAS
ENTITLED TO ONE-HALF THE PROCEEDS OF THE POLICY.  THE COURT GAVE
JUDGMENT TO THE WIDOW FOR ONE-HALF OF THE PAYMENTS ALREADY RECEIVED AND
REQUIRED PAYMENT TO HER OF ONE-HALF OF ALL FUTURE PAYMENTS IMMEDIATELY
UPON RECEIPT THEREOF.  HELD: 

1.  THE JUDGMENT OF THE STATE COURT WAS INVALID AS IN CONFLICT WITH
THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940.  PP. 656-660. 

(A)  UNDER 38 U.S.C. SEC. 802(G), THE PROCEEDS OF SUCH A POLICY
BELONG TO THE NAMED BENEFICIARY; AND THE JUDGMENT BELOW WOULD NULLIFY
THE SOLDIER'S CHOICE AND FRUSTRATE THE PURPOSE OF CONGRESS.  PP. 658
659. 

(B)  SO FAR AS IT ORDERED DIVERSION OF FUTURE PAYMENTS, THE JUDGMENT
CONTRAVENES THE PROVISION OF 38 U.S.C. SEC. 454A THAT PAYMENTS TO THE
NAMED BENEFICIARY "SHALL BE EXEMPT FROM THE CLAIMS OF CREDITORS, AND
SHALL NOT BE LIABLE TO ATTACHMENT, LEVY, OR SEIZURE BY OR UNDER ANY
LEGAL OR EQUITABLE PROCESS WHATEVER, EITHER BEFORE OR AFTER RECEIPT BY
THE BENEFICIARY  ...  "  P. 659. 

(C)  A DIFFERENT RESULT IS NOT REQUIRED BY DECISIONS HOLDING
EXEMPTIONS RELATING TO PENSIONS AND VETERANS' RELIEF INAPPLICABLE WHEN
ALIMONY OR THE SUPPORT OF WIFE OR CHILDREN IS IN ISSUE.  PP. 659-660. 

2.  THE NATIONAL SERVICE LIFE INSURANCE ACT IS A VALID EXERCISE OF
THE CONGRESSIONAL POWERS OVER NATIONAL DEFENSE.  PP. 660-661. 

3.  NO ISSUE UNDER THE FIFTH AMENDMENT IS PRESENTED; BECAUSE THE ACT
PRECLUDES ANY CLAIM BY THE WIDOW OF A "VESTED" RIGHT IN THE PROCEEDS OF
THE INSURANCE.  P. 661. 

WISSNER ET AL. V. WISSNER. 

APPEAL FROM THE DISTRICT COURT OF APPEAL, THIRD APPELLATE DISTRICT,
OF CALIFORNIA. 

IN A SUIT IN A CALIFORNIA STATE COURT, BY THE WIDOW OF AN INSURED
UNDER A NATIONAL SERVICE LIFE INSURANCE POLICY, TO RECOVER ONE-HALF THE
PROCEEDS OF THE POLICY, THE STATE COURT GAVE JUDGMENT FOR THE
PLAINTIFF.  THE DISTRICT COURT OF APPEAL AFFIRMED.  89 CAL. APP.2D 759,
201 P.2D 837.  THE STATE SUPREME COURT DENIED A HEARING.  ON APPEAL TO
THIS COURT, REVERSED, P. 661. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

WE ARE TO DETERMINE WHETHER THE CALIFORNIA COMMUNITY PROPERTY LAW, AS
APPLIED IN THIS CASE, CONFLICTS WITH CERTAIN PROVISIONS OF THE NATIONAL
SERVICE LIFE INSURANCE ACT OF 1940; FN1  AND IF SO, WHETHER THE FEDERAL
LAW IS CONSISTENT WITH THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES.  THE CAUSE IS HERE ON APPEAL FROM THE FINAL JUDGMENT OF
A CALIFORNIA DISTRICT COURT OF APPEAL, THE SUPREME COURT OF CALIFORNIA
HAVING DENIED A HEARING.  READING THE OPINION BELOW AS A DECISION THAT
THE FEDERAL STATUTE WAS UNCONSTITUTIONAL, WE NOTED PROBABLE
JURISDICTION.  28 U.S.C. SEC. 1257(1). 

THE MATERIAL FACTS ARE NOT IN DISPUTE.  APPELLANTS ARE THE PARENTS,
AND APPELLEE THE WIDOW, OF MAJOR LEONARD O. WISSNER, WHO DIED IN INDIA
IN 1945 IN THE SERVICE OF THE UNITED STATES ARMY.  HE HAD ENLISTED IN
THE ARMY IN NOVEMBER 1942 AND IN JANUARY 1943 SUBSCRIBED TO A NATIONAL
SERVICE LIFE INSURANCE POLICY IN THE PRINCIPAL SUM OF $10,000, WHICH
POLICY WAS IN EFFECT AT THE DATE OF HIS DEATH.  THE OPINION BELOW
INDICATES THAT THE DECEDENT AND APPELLEE WERE ESTRANGED AT THE TIME HE
ENTERED THE ARMY OR SHORTLY THEREAFTER.  IN JANUARY 1943 HE REQUESTED
HIS ATTORNEY TO "GET AN INSURANCE POLICY AWAY" FROM APPELLEE.  AFTER
SIX MONTHS IN THE SERVICE DECEDENT STOPPED THE ALLOTMENT TO HIS WIFE,
AND IN SEPTEMBER 1943 EXPRESSED THE WISH THAT HE "COULD FIND SOME WAY
OF FORCING PLAINTIFF TO A SETTLEMENT AND A DIVORCE."  IT IS NOT
SURPRISING, THEREFORE, THAT, WITHOUT THE KNOWLEDGE OR CONSENT OF HIS
WIFE, THE MAJOR NAMED HIS MOTHER PRINCIPAL AND HIS FATHER CONTINGENT
BENEFICIARY UNDER HIS NATIONAL SERVICE LIFE INSURANCE POLICY.  SINCE
HIS DEATH THE UNITED STATES VETERANS' ADMINISTRATION HAS BEEN PAYING
HIS MOTHER THE PROCEEDS OF THE POLICY IN MONTHLY INSTALLMENTS. 

IN 1947 THE MAJOR'S WIDOW BROUGHT ACTION AGAINST THE APPELLANTS IN
THE SUPERIOR COURT FOR STANISLAUS COUNTY, STATE OF CALIFORNIA, ALLEGING
THAT UNDER CALIFORNIA COMMUNITY PROPERTY LAW SHE WAS ENTITLED TO ONE
HALF THE PROCEEDS OF THE POLICY.  APPELLANTS ANSWERED THAT THEIR
DESIGNATION AS BENEFICIARIES WAS "FINAL AND CONCLUSIVE AS AGAINST ANY
CLAIMED RIGHTS" OF APPELLEE.  THE COURT FOUND THAT THE DECEDENT AND HIS
WIDOW HAD BEEN MARRIED IN 1930, AND UNTIL THE DATE OF MAJOR WISSNER'S
DEATH HAD BEEN LEGALLY DOMICILED THERE AND SUBJECT TO THE STATE'S
COMMUNITY PROPERTY LAWS.  MAJOR WISSNER'S ARMY PAY, WHICH WAS HELD TO
BE COMMUNITY PROPERTY UNDER CALIFORNIA LAW, FN2  WAS THE SOURCE OF THE
PREMIUMS PAID ON THE POLICY.  BUT NO CLAIM WAS MADE FOR THE PREMIUMS;
THE WIDOW SOUGHT THE PROCEEDS OF THE INSURANCE.  THE COURT CONCLUDED
THAT, CONSISTENT WITH CALIFORNIA LAW IN THE ORDINARY INSURANCE CASE,
THE PROCEEDS OF THIS POLICY "WERE AND ARE THE COMMUNITY PROPERTY" OF
THE WIDOW AND THE DECEDENT, AND ENTERED JUDGMENT FOR APPELLEE FOR ONE
HALF THE AMOUNT OF PAYMENTS ALREADY RECEIVED, PLUS INTEREST, AND
REQUIRED APPELLANTS TO PAY APPELLEE ONE-HALF OF ALL FUTURE PAYMENTS
"IMMEDIATELY UPON THE RECEIPT THEREOF" BY APPELLEES OR EITHER THEREOF. 
THE DISTRICT COURT OF APPEAL AFFIRMED, 89 CAL. APP.2D 759, 201 P.2D
837(1949), HOLDING THAT APPELLEE HAD A "VESTED RIGHT" TO THE INSURANCE
PROCEEDS, AND THE SUPREME COURT OF CALIFORNIA DENIED A HEARING, ONE
JUDGE DISSENTING. 

WE ARE OF THE OPINION THAT THE DECISION BELOW WAS INCORRECT.  THE
NATIONAL SERVICE LIFE INSURANCE ACT IS THE CONGRESSIONAL MODE OF
AFFORDING A UNIFORM AND COMPREHENSIVE SYSTEM OF LIFE INSURANCE FOR
MEMBERS AND VETERANS OF THE ARMED FORCES OF THE UNITED STATES.  A
LIBERAL POLICY TOWARD THE SERVICEMAN AND HIS NAMED BENEFICIARY IS
EVERYWHERE EVIDENT IN THE COMPREHENSIVE STATUTORY PLAN.  PREMIUMS ARE
VERY LOW AND ARE WAIVED DURING THE INSURED'S DISABILITY; COSTS OF
ADMINISTRATION ARE BORNE BY THE UNITED STATES; LIABILITIES MAY BE
DISCHARGED OUT OF CONGRESSIONAL APPROPRIATIONS. 

THE CONTROLLING SECTION OF THE ACT PROVIDES THAT THE INSURED "SHALL
HAVE THE RIGHT TO DESIGNATE THE BENEFICIARY OR BENEFICIARIES OF THE
INSURANCE (WITHIN A DESIGNATED CLASS),  ...  AND SHALL ...  AT ALL
TIMES HAVE THE RIGHT TO CHANGE THE BENEFICIARY OR BENEFICIARIES  ...  "
38 U.S.C. SEC. 802(G).  THUS CONGRESS HAS SPOKEN WITH FORCE AND
CLARITY IN DIRECTING THAT THE PROCEEDS BELONG TO THE NAMED BENEFICIARY
AND NO OTHER.  PURSUANT TO THE CONGRESSIONAL COMMAND, THE GOVERNMENT
CONTRACTED TO PAY THE INSURANCE TO THE INSURED'S CHOICE.  HE CHOSE HIS
MOTHER.  IT IS PLAIN TO US THAT THE JUDGMENT OF THE LOWER COURT, AS TO
ONE-HALF OF THE PROCEEDS, SUBSTITUTES THE WIDOW FOR THE MOTHER, WHO WAS
THE BENEFICIARY CONGRESS DIRECTED SHALL RECEIVE THE INSURANCE MONEY. 
WE DO NOT SHARE APPELLEE'S DISCOVERY OF CONGRESSIONAL PURPOSE THAT
WIDOWS IN COMMUNITY PROPERTY STATES PARTICIPATE IN THE PAYMENTS UNDER
THE POLICY, CONTRARY TO THE EXPRESS DIRECTION OF THE INSURED.  WHETHER
DIRECTED AT THE VERY MONEY RECEIVED FROM THE GOVERNMENT OR AN
EQUIVALENT AMOUNT, THE JUDGMENT BELOW NULLIFIES THE SOLDIER'S CHOICE
AND FRUSTRATES THE DELIBERATE PURPOSE OF CONGRESS.  IT CANNOT STAND. 

THE JUDGMENT UNDER REVIEW HAS A FURTHER DEFICIENCY SO FAR AS IT
ORDERED THE DIVERSION OF FUTURE PAYMENTS AS SOON AS THEY ARE PAID BY
THE GOVERNMENT TO THE MOTHER.  AT LEAST IN THIS RESPECT, THE VERY
PAYMENTS RECEIVED UNDER THE POLICY ARE TO BE "SEIZED," IN EFFECT, BY
THE JUDGMENT BELOW.  THIS IS IN FLAT CONFLICT WITH THE EXEMPTION
PROVISION CONTAINED IN 38 U.S.C. SEC. 454A, MADE A PART OF THIS ACT BY
38 U.S.C. SEC. 816: PAYMENTS TO THE NAMED BENEFICIARY "SHALL BE EXEMPT
FROM THE CLAIMS OF CREDITORS, AND SHALL NOT BE LIABLE TO ATTACHMENT,
LEVY, OR SEIZURE BY OR UNDER ANY LEGAL OR EQUITABLE PROCESS WHATEVER,
EITHER BEFORE OR AFTER RECEIPT BY THE BENEFICIARY.  ...  " 

WE RECOGNIZE THAT SOME COURTS HAVE RULED THAT THIS AND SIMILAR
EXEMPTIONS RELATING TO PENSIONS AND VETERANS' RELIEF DO NOT APPLY WHEN
ALIMONY OR THE SUPPORT OF WIFE OR CHILDREN IS IN ISSUE.  SEE SCHLAEFER
V. SCHLAEFER, 71 APP. D.C. 350, 112 F.2D 177(1940); TULLY V. TULLY, 159
MASS. 91, 34 N.E. 79(1893); HODSON V. NEW YORK CITY EMPLOYEES'
RETIREMENT SYSTEM, 243 APP. DIV. 480, 278 N.Y. SUPP. 16(1935); IN RE
GUARDIANSHIP OF BAGNALL, 238 IOWA 905, 29 N.W.2D 597(1947), AND CASES
THEREIN CITED.  BUT CF. BREWER V. BREWER, 19 TENN. APP. 209, 239-241,
84 S.W.2D 1022, 1040(1933).  WE SHALL NOT ATTEMPT TO EPITOMIZE A LEGAL
SYSTEM AT LEAST AS ANCIENT AS THE CUSTOMS OF THE VISIGOTHS,  FN3  BUT
WE MUST NOTE THAT THE COMMUNITY PROPERTY PRINCIPLE RESTS UPON SOMETHING
MORE THAN THE MORAL OBLIGATION OF SUPPORTING SPOUSE AND CHILDREN:  THE
BUSINESS RELATIONSHIP OF MAN AND WIFE FOR THEIR MUTUAL MONETARY
PROFIT.  SEE DE FUNIAK, COMMUNITY PROPERTY, SEC. 11(1943).  VENERABLE
AND WORTHY AS THIS COMMUNITY IS, IT IS NOT, WE THINK, AS LIKELY TO
JUSTIFY AN EXCEPTION TO THE CONGRESSIONAL LANGUAGE AS SPECIFIC JUDICIAL
RECOGNITION OF PARTICULAR NEEDS, IN THE ALIMONY AND SUPPORT CASES.  OUR
VIEW OF THOSE CASES, WHATEVER IT MAY BE, IS IRRELEVANT HERE.  FN4
FURTHER, CONGRESS HAS PROVIDED IN THE NATIONAL SERVICE LIFE INSURANCE
ACT THAT THE CHOSEN BENEFICIARY OF THE LIFE INSURANCE POLICY SHALL BE,
DURING LIFE, THE SOLE OWNER OF THE PROCEEDS. 

THE CONSTITUTIONALITY OF THE CONGRESSIONAL MANDATE ABOVE EXPOUNDED
NEED NOT DETAIN US LONG.  CERTAINLY CONGRESS IN ITS DESIRE TO AFFORD AS
MUCH MATERIAL PROTECTION AS POSSIBLE TO ITS FIGHTING FORCE COULD WISELY
PROVIDE A PLAN OF INSURANCE COVERAGE.  POSSESSION OF GOVERNMENT
INSURANCE, PAYABLE TO THE RELATIVE OF HIS CHOICE, MIGHT WELL DIRECTLY
ENHANCE THE MORALE OF THE SERVICEMAN.  THE EXEMPTION PROVISION IS HIS
GUARANTEE OF THE COMPLETE AND FULL PERFORMANCE OF THE CONTRACT TO THE
EXCLUSION OF CONFLICTING CLAIMS.  THE END IS A LEGITIMATE ONE WITHIN
THE CONGRESSIONAL POWERS OVER NATIONAL DEFENSE, AND THE MEANS ARE
ADAPTED TO THE CHOSEN END.  THE ACT IS VALID.  MCCULLOCH V. MARYLAND, 4
WHEAT.  316, 421(1819).  AND SINCE THE STATUTE WHICH MADE THE INSURANCE
PROCEEDS POSSIBLE WAS EXPLICIT IN ANNOUNCING THAT THE INSURED SHALL
HAVE THE RIGHT TO DESIGNATE THE RECIPIENT OF THE INSURANCE, AND THAT
"NO PERSON SHALL HAVE A VESTED RIGHT" TO THOSE PROCEEDS, 38 U.S.C. SEC.
802(I), APPELLEE COULD NOT, IN LAW, CONTEMPLATE THEIR CAPTURE.  THE
FEDERAL STATUTE ESTABLISHES THE FUND IN ISSUE, AND FORESTALLS THE
EXISTENCE OF ANY "VESTED" RIGHT IN THE PROCEEDS OF FEDERAL INSURANCE. 
HENCE NO CONSTITUTIONAL QUESTION IS PRESENTED.  HOWEVER "VESTED" HER
RIGHT TO THE PROCEEDS OF NONGOVERNMENTAL INSURANCE UNDER CALIFORNIA
LAW, THAT RULE CANNOT APPLY TO THIS INSURANCE.  COMPARE W.B. WORTHEN
CO. V. THOMAS, 292 U.S. 426(1934); LYNCH V. UNITED STATES, 292 U.S.
571(1934).  SEE HINES V. LOWREY, 305 U.S. 85(1938); NORMAN V. BALTIMORE
& OHIO R. CO., 294 U.S. 240(1935); RUDDY V. ROSSI, 248 U.S. 104(1918). 

THE JUDGMENT BELOW IS REVERSED. 

FN1  54 STAT. 1008, AS AMENDED, 38 U.S.C. SEC. 801 ET SEQ. AMENDMENTS
ADDED IN 1946, 60 STAT. 781, DO NOT CONCERN US HERE. 

FN2  WE ASSUME THE CORRECTNESS OF THE LOWER COURT'S STATEMENT OF
STATE LAW.  SEE ALSO FRENCH V. FRENCH, 17 CAL.2D 775, 112 P.2D
235(1941).  THE VIEW WE TAKE OF THIS CASE MAKES IT UNNECESSARY TO
DECIDE WHETHER CALIFORNIA IS ENTITLED TO CALL ARMY PAY COMMUNITY
PROPERTY. 

FN3  SEE LOBINGIER, AN HISTORICAL INTRODUCTION TO COMMUNITY PROPERTY
LAW, 8 NAT. UNIV.  L. REV. (NO. 2), P. 45(1928); DE FUNIAK, COMMUNITY
PROPERTY, C. II (1943). 

FN4  THERE ARE, OF COURSE, SUPPORT ASPECTS TO THE COMMUNITY PROPERTY
PRINCIPLE, AND IN SOME CASES THEY MAY BE OF CONSIDERABLE IMPORTANCE. 
LIKEWISE ALIMONY MAY NOT BE LIMITED TO THE AMOUNT ESSENTIAL TO SUPPORT
THE DIVORCED SPOUSE.  BUT WE DO NOT THINK THE CONGRESS WOULD HAVE
INTENDED DECISION TO TURN ON FACTUAL VARIATIONS IN THE SPOUSE'S NEED. 
IF THERE IS A DISTINCTION TO BE DRAWN, WE THINK IT MUST BE BASED UPON A
GENERALIZATION AS TO THE DOMINATING CHARACTERISTICS OF A PARTICULAR
CLASS OF CASES - ALIMONY CASES, SUPPORT CASES, COMMUNITY PROPERTY
CASES.  THE ALIMONY CASES HAVE UNIFORMLY BEEN DECIDED ON THAT BASIS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MINTON, DISSENTING. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON, AND I ARE UNABLE TO
AGREE WITH THE MAJORITY IN THIS CASE.  THE HUSBAND'S EARNINGS ARE
COMMUNITY PROPERTY UNDER SEC. 161A, CALIFORNIA CIVIL CODE.  THE WIFE
HAS A VESTED INTEREST IN ONE-HALF OF SUCH EARNINGS.  UNITED STATES V.
MALCOLM, 282 U.S. 792; BANK OF AMERICA V. MANTZ, 4 CAL.2D 322, 49 P.2D
279; COOKE V. COOKE, 65 CAL. APP.2D 260, 150 P.2D 514. 

IF THE PREMIUMS ON A POLICY IN A PRIVATE INSURANCE COMPANY HAD BEEN
PAID OUT OF COMMUNITY PROPERTY WITHOUT THE WIFE'S CONSENT, THE WIFE
COULD CLAIM HER PROPORTIONATE SHARE OF THE INSURANCE.  GRIMM V. GRIMM,
26 CAL.2D 173, 157 P.2D 841; COOKE V. COOKE, SUPRA; BAZZELL V. ENDRISS,
41 CAL. APP.2D 463, 107 P.2D 49; MUNDT V. CONNECTICUT GENERAL LIFE INS.
CO., 35 CAL. APP.2D 416, 95 P.2D 966.  FN1 

IT IS CLAIMED THAT THE EXEMPTION PROVISION OF THE FEDERAL STATUTE
PREVENTS THE SAME RULE FROM APPLYING HERE.  THIS PROVISION, 49 STAT.
609, 38 U.S.C. SEC. 454A, PROVIDES: 

"PAYMENTS OF BENEFITS DUE OR TO BECOME DUE  ...  SHALL BE EXEMPT FROM
THE CLAIMS OF CREDITORS, AND SHALL NOT BE LIABLE TO ATTACHMENT, LEVY,
OR SEIZURE BY OR UNDER ANY LEGAL OR EQUITABLE PROCESS WHATEVER, EITHER
BEFORE OR AFTER RECEIPT BY THE BENEFICIARY." 

WHAT DID CONGRESS CONTEMPLATE BY THE ENACTMENT OF THIS PROVISION?  I
THINK THE STATUTE PRESUPPOSES THAT THE BENEFICIARY IS THE UNDISPUTED
OWNER OF THE PROCEEDS, AND THAT A CREDITOR HAS SOUGHT TO REACH THE FUND
ON AN INDEPENDENT CLAIM.  UNDER THOSE CIRCUMSTANCES THE REMEDY IS
DENIED, FOR THE STATUTE IMMUNIZES THE FUND FROM LEVY OR ATTACHMENT. 
THAT IS NOT THE CASE BEFORE US.  THE NATURE OF THIS DISPUTE IS A CLAIM
BY THE WIFE THAT SHE IS THE OWNER OF A HALF PORTION OF THESE PROCEEDS
BECAUSE SUCH PROCEEDS ARE THE FRUITS OF FUNDS ORIGINALLY HERS. 

AND RECOGNITION OF HER STATUS AS AN OWNER GLARINGLY REVEALS THE
IRRELEVANCY OF THE CHOICE OF BENEFICIARY PROVISION.  54 STAT. 1010, 38
U.S.C. SEC. 802(G).  CONGRESS STATED THAT THE SERVICEMAN WAS TO HAVE
THE RIGHT TO DESIGNATE HIS BENEFICIARY.  WHEN HE HAS DONE SO ALL OTHER
PERSONS THAN THE ONE SELECTED ARE FORECLOSED FROM CLAIMING THE PROCEEDS
AS BENEFICIARY.  NO FURTHER EFFECT HAS THE STATUTE.  HERE THE WIFE
MAKES NO CLAIM TO RIGHTS AS A BENEFICIARY.  I AM NOT PERSUADED THAT
EITHER THE CHOICE OF BENEFICIARY OR THE EXEMPTION PROVISION SHOULD
CARRY THE IMPLICATION OF WIPING OUT FAMILY PROPERTY RIGHTS, WHICH
TRADITIONALLY HAVE BEEN DEFINED BY STATE LAW.  FULLY TO RESPECT THE
RIGHT WHICH CONGRESS GAVE THE SERVICEMAN TO DESIGNATE HIS BENEFICIARY
DOES NOT REQUIRE DISRESPECT OF SETTLED FAMILY LAW AND THE INCIDENTS OF
THE FAMILY RELATIONSHIP.  AS NOTED IN THE OPINION OF THE COURT,
ANALOGOUS OCCASIONS HAVE FOUND COURTS EXPRESSING GREATER RELUCTANCE TO
OBLITERATE RIGHTS RECOGNIZED BY THE STATES.  FN2    EVEN ACCEPTING THE
COURT'S VIEW THAT THE EXEMPTION PROVISION APPLIES TO THE WIFE, IT WAS
INTENDED TO PROTECT THE FUND FROM ATTACHMENT, LEVY, OR SEIZURE ONLY SO
LONG AS IT COULD BE IDENTIFIED AS A FUND.  NO ATTACHMENT, LEVY, OR
SEIZURE IS ATTEMPTED HERE.  THIS WAS AN ACTION AT LAW FOR A MONEY
JUDGMENT.  APPELLEE OBTAINED A JUDGMENT FOR ONE-HALF OF THE PAYMENTS
THAT HAD BEEN COLLECTED BY THE BENEFICIARIES AND FOR ONE-HALF OF THOSE
TO BE COLLECTED THEREAFTER.  PAYMENTS RECEIVED UNDER THE POLICY ARE
ONLY THE MEASURE OF THE RECOVERY. 

TO ALLOW SUCH A JUDGMENT DOES NOT INTERFERE WITH THE FUND OR THE FREE
DESIGNATION OF THE BENEFICIARY BY THE SERVICEMAN.  I CANNOT BELIEVE
THAT CONGRESS INTENDED TO SAY TO A SERVICEMAN, "YOU MAY TAKE YOUR
WIFE'S PROPERTY AND PURCHASE A POLICY OF INSURANCE PAYABLE TO YOUR
MOTHER, AND WE WILL SEE THAT YOUR DEFRAUDED WIFE GETS NONE OF THE
MONEY."  CERTAINLY CONGRESS DID NOT INTEND TO UPSET THE LONG-STANDING
COMMUNITY PROPERTY LAW OF THE STATES WHERE IT WAS NOT NECESSARY FOR THE
PROTECTION OF THE GOVERNMENT IN ITS RELATION TO THE SOLDIER OR TO THE
INTEGRITY OF THE FUND FROM "ATTACHMENT, LEVY, OR SEIZURE."  THESE ARE
WORDS OF ART. THEY HAVE A DEFINITE MEANING AND USAGE IN THE LAW.  THIS
USAGE IS NOT PRESENT HERE.  I FIND NOTHING IN THE SECTION THAT
PROHIBITS THE BENEFICIARY FROM BEING SUED AT ANY TIME ON A MATTER
GROWING OUT OF THE TRANSACTION BY WHICH THE SOLDIER ACQUIRED THE
INSURANCE, AT LEAST WHERE THERE IS NO ATTEMPT TO ATTACH, LEVY, OR SEIZE
THE FUND.  IT WAS THE FUND CONGRESS WAS INTERESTED IN PROTECTING, NOT
THE BENEFICIARY.  I WOULD AFFIRM. 

FN1  "  ...  THE ONLY TEST APPLIED TO THIS PROBLEM HAS BEEN WHETHER
THE PREMIUMS (ON A POLICY ISSUED ON THE LIFE OF A HUSBAND AFTER
COVERTURE) ARE PAID ENTIRELY FROM COMMUNITY FUNDS.  IF SO, THE POLICY
BECOMES A COMMUNITY ASSET AND THE NONCONSENTING WIFE MAY RECOVER AN
UNDIVIDED ONE-HALF THEREOF  ...  WITHOUT REGARD TO THE DISPROPORTIONATE
SIZE OF THE PREMIUM WHEN COMPARED WITH THE FACE OF THE POLICY."  MUNDT
V. CONNECTICUT GENERAL LIFE INS. CO., 35 CAL. APP.2D AT 421, 95 P.2D AT
969. 

FN2  THE COURT HAS SOUGHT TO DISTINGUISH, UNSUCCESSFULLY I THINK, THE
MANY CASES HOLDING THAT PAYMENTS RECEIVED AS PENSION, DISABILITY
INSURANCE, OR VETERANS' COMPENSATION ARE NOT EXEMPTED FROM CLAIMS FOR
ALIMONY OR FAMILY SUPPORT BY EXEMPTION STATUTES IN THE PATTERN OF SEC.
454A.  EXHAUSTIVE DISCUSSIONS MAY BE FOUND IN IN RE BAGNALL'S
GUARDIANSHIP, 238 IOWA 905, 29 N.W.2D 597; SCHLAEFER V. SCHLAEFER, 71
APP. D.C. 350, 112 F.2D 177.  SEE ALSO GASKINS V. SECURITY-FIRST NAT.
BANK OF LOS ANGELES, 30 CAL. APP.2D 409, 86 P.2D 681; HOLLIS V. BRYAN,
166 MISS.  874, 143 SO. 687.  CF. NOTE, 11 A.L.R. 123 AND SUCCEEDING
ANNOTATIONS. 
..END :






















N.J. INS. CO. V. DIV. OF TAX APPEALS, 338 U.S. 665 


NO. 147.  ARGUED DECEMBER 13, 1949.  - DECIDED FEBRUARY 6, 1950.  - 1
N.J. 496, 64 A.2D 341, REVERSED. 


UNDER SEC. 54:4-22 OF THE REVISED STATUTES OF NEW JERSEY, AS AMENDED
BY LAWS OF 1938, C. 245, A TAXING DISTRICT OF THE STATE LEVIED AGAINST
THE INTANGIBLE PROPERTY OF A STOCK INSURANCE COMPANY AN ASSESSMENT FOR
THE TAXABLE YEAR 1945 IN THE AMOUNT OF 15 PER CENT OF THE COMPANY'S
PAID-UP CAPITAL AND SURPLUS, COMPUTED WITHOUT DEDUCTING THE PRINCIPAL
AMOUNT OF CERTAIN UNITED STATES BONDS AND ACCRUED INTEREST THEREON. 
HELD:  THE ASSESSMENT WAS INVALID AS IN CONFLICT WITH SEC. 3701 OF THE
REVISED STATUTES OF THE UNITED STATES, WHICH PROVIDES THAT "ALL STOCKS,
BONDS, TREASURY NOTES, AND OTHER OBLIGATIONS OF THE UNITED STATES,
SHALL BE EXEMPT FROM TAXATION BY OR UNDER STATE OR MUNICIPAL OR LOCAL
AUTHORITY."  PP. 666-676. 

(A)  THE TAX AUTHORIZED BY THE STATE STATUTE, WHETHER LEVIED AGAINST
CAPITAL AND SURPLUS LESS LIABILITIES OR AGAINST ENTIRE NET WORTH, WAS
IN PRACTICAL OPERATION AND EFFECT A TAX UPON FEDERAL BONDS.  PP. 672
673. 

(B)  TRADESMENS NATIONAL BANK V. OKLAHOMA TAX COMM'N, 309 U.S. 560,
AND EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, DISTINGUISHED.  PP.
673-674. 

(C)  A TAX ON CORPORATE CAPITAL MEASURED BY FEDERAL SECURITIES MAY BE
INVALID EVEN THOUGH IMPOSED WITHOUT DISCRIMINATION AGAINST FEDERAL
OBLIGATIONS.  PP. 674-675. 

(D)  IF THE AMOUNT HERE ASSESSED BE VIEWED AS LEVIED EXCLUSIVELY ON
THE CORPORATION'S NET WORTH REMAINING AFTER DEDUCTION OF GOVERNMENT
BONDS AND INTEREST, THE ASSESSMENT WOULD BE DISCRIMINATORY BECAUSE IT
WOULD BE LEVIED AT THE RATE OF OVER 79 PER CENT OF THE CORPORATION'S
ASSESSABLE VALUATION RATHER THAN AT THE RATE OF 15 PER CENT PRESCRIBED
BY THE STATE STATUTE.  P. 675. 

(E)  THE RESULT HERE REACHED IS CONSONANT WITH THE LEGISLATIVE
PURPOSE OF R.S. SEC. 3701 "TO PREVENT TAXES WHICH DIMINISH IN THE
SLIGHTEST DEGREE THE MARKET VALUE OR THE INVESTMENT ATTRACTIVENESS OF
OBLIGATIONS ISSUED BY THE UNITED STATES IN AN EFFORT TO SECURE
NECESSARY CREDIT."  P. 675. 

(F)  THE LEGISLATIVE PURPOSE OF R.S. SEC. 3701 ALSO REQUIRES THE
EXEMPTION FROM ASSESSMENT UNDER THE STATE STATUTE OF INTEREST ON
FEDERAL SECURITIES WHICH HAD ACCRUED BUT HAD NOT YET BEEN PAID.  PP.
675-676. 

NEW JERSEY REALTY TITLE INSURANCE CO. V. DIVISION OF TAX APPEALS OF
NEW JERSEY ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

AN ORDER OF A STATE TAX AGENCY DISMISSING APPELLANT'S APPEAL FROM AN
ASSESSMENT WAS REVERSED BY THE FORMER NEW JERSEY SUPREME COURT.  137
N.J.L. 444, 60 A.2D 265.  THE SUPREME COURT OF NEW JERSEY AS
ESTABLISHED UNDER THE PRESENT STATE CONSTITUTION REVERSED.  1 N.J. 496,
64 A.2D 341.  ON APPEAL TO THIS COURT, REVERSED, P. 676. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

A TAXING DISTRICT OF NEW JERSEY HAS LEVIED AGAINST THE INTANGIBLE
PERSONAL PROPERTY OF A DOMESTIC CORPORATION AN ASSESSMENT FOR THE
TAXABLE YEAR 1945 IN THE AMOUNT OF 15 PER CENT OF THE TAXPAYER'S PAID
UP CAPITAL AND SURPLUS, COMPUTED WITHOUT DEDUCTING THE PRINCIPAL AMOUNT
OF CERTAIN UNITED STATES BONDS AND ACCRUED INTEREST THEREON.  THIS
APPEAL CHALLENGES THE VALIDITY OF THE ASSESSMENT AND OF THE TAX STATUTE
UNDER WHICH IT WAS LEVIED, ON THE GROUND OF CONFLICT WITH ART. I, SEC.
8 OF THE FEDERAL CONSTITUTION, BY WHICH CONGRESS IS AUTHORIZED "TO
BORROW MONEY ON THE CREDIT OF THE UNITED STATES," AND WITH SEC. 3701 OF
THE REVISED STATUTES (1875), 31 U.S.C. SEC. 742, WHICH GENERALLY
EXEMPTS INTEREST-BEARING OBLIGATIONS OF THE UNITED STATES FROM STATE
AND LOCAL TAXATION. 

THE ASSESSMENT IN QUESTION WAS LEVIED UNDER SEC. 54:4-22 OF THE
REVISED STATUTES OF NEW JERSEY (1937), AS AMENDED BY LAWS OF 1938, C.
245.  FN1  N.J. REV. STAT. CUM. SUPP., LAWS OF 1938, 1939, 1940, SEC.
54:4-22.  THAT SECTION PROVIDED AS FOLLOWS: 

"EVERY STOCK INSURANCE COMPANY ORGANIZED UNDER THE LAWS OF THIS
STATE, OTHER THAN A LIFE INSURANCE COMPANY, SHALL BE ASSESSED AND TAXED
IN THE TAXING DISTRICT WHERE ITS OFFICE IS SITUATED, UPON THE FULL
AMOUNT OR VALUE OF ITS PROPERTY (EXCLUSIVE OF REAL ESTATE AND TANGIBLE
PERSONAL PROPERTY, WHICH SHALL BE SEPARATELY ASSESSED AND TAXED WHERE
THE SAME IS LOCATED, AND EXCLUSIVE OF ALL SHARES OF STOCK OWNED BY SUCH
INSURANCE COMPANY AND EXCLUSIVE OF NONTAXABLE PROPERTY AND OF PROPERTY
EXEMPT FROM TAXATION), DEDUCTING FROM SUCH AMOUNT OR VALUE ALL DEBTS
AND LIABILITIES CERTAIN AND DEFINITE AS TO OBLIGATION AND AMOUNT, AND
THE FULL AMOUNT OF ALL RESERVES FOR TAXES, AND SUCH PROPORTION OF THE
RESERVES FOR UNEARNED PREMIUMS, LOSSES AND OTHER LIABILITIES AS THE
FULL AMOUNT OR VALUE OF ITS TAXABLE INTANGIBLE PROPERTY BEARS TO THE
FULL AMOUNT OR VALUE OF ALL ITS INTANGIBLE PROPERTY; PROVIDED, HOWEVER,
THE ASSESSMENT AGAINST THE INTANGIBLE PERSONAL PROPERTY OF ANY STOCK
INSURANCE COMPANY SUBJECT TO THE PROVISIONS OF THIS SECTION SHALL IN NO
EVENT BE LESS THAN FIFTEEN PER CENTUM OF THE SUM OF THE PAID-UP CAPITAL
AND THE SURPLUS IN EXCESS OF THE TOTAL OF ALL LIABILITIES OF SUCH
COMPANY, AS THE SAME ARE STATED IN THE ANNUAL STATEMENT OF SUCH COMPANY
FOR THE CALENDAR YEAR NEXT PRECEDING THE DATE OF SUCH ASSESSMENT AND
FILED WITH THE DEPARTMENT OF BANKING AND INSURANCE OF THE STATE OF NEW
JERSEY, AFTER DEDUCTING FROM SUCH TOTAL OF CAPITAL AND SURPLUS THE
AMOUNT OF ALL TAX ASSESSMENTS AGAINST ANY AND ALL REAL ESTATE, TITLE TO
WHICH STANDS IN THE NAME OF SUCH COMPANY. 

"THE CAPITAL STOCK IN ANY SUCH COMPANY SHALL NOT BE REGARDED FOR THE
PURPOSES OF THIS ACT (SECTION) AS A LIABILITY AND NO PART OF THE AMOUNT
THEREOF SHALL BE DEDUCTED, AND THE PERSON OR PERSONS OR CORPORATIONS
HOLDING THE CAPITAL STOCK OF SUCH COMPANY SHALL NOT BE ASSESSED OR
TAXED THEREFOR.  NO FRANCHISE TAX SHALL BE IMPOSED UPON ANY INSURANCE
COMPANY INCLUDED IN THIS SECTION."  FN2 

A CORPORATION SUBJECT TO THIS SECTION WAS TAXABLE AT THE RATE OF THE
LOCAL TAXING DISTRICT. 

APPELLANT IS NEW JERSEY REALTY TITLE INSURANCE COMPANY, A STOCK
INSURANCE COMPANY OF NEW JERSEY WITH ITS OFFICE IN THE CITY AND TAXING
DISTRICT OF NEWARK, COUNTY OF ESSEX, NEW JERSEY.  FOR THE YEAR 1945 THE
CITY OF NEWARK LEVIED AN ASSESSMENT OF $75,700 ON APPELLANT'S
INTANGIBLE PERSONAL PROPERTY AND COLLECTED FROM IT A TAX OF $3,906.12
COMPUTED THEREON. 

APPELLANT HAD FILED A RETURN  FN3  BASED ON ITS BALANCE SHEET AT THE
CLOSE OF BUSINESS SEPTEMBER 30, 1944, SHOWING TOTAL ASSETS OF
$774,972.98, THE ENTIRETY OF WHICH WAS DECLARED TO BE INTANGIBLES.  IN
CALCULATING ITS "TOTAL TAXABLE INTANGIBLES" APPELLANT DEDUCTED THE
FOLLOWING FROM ITS TOTAL ASSETS:  UNITED STATES TREASURY BONDS OF THE
FACE AMOUNT OF $450,000; ACCRUED INTEREST THEREON IN THE AMOUNT OF
$1,682.25; AND OTHER NONTAXABLE OR EXEMPT PROPERTY VALUED AT
$318,771.95.  THE AGGREGATE AMOUNT OF THE PROPERTY THUS EXCLUDED WAS
$770,454.20.  THE REMAINDER, $4,518.78, WAS ENTERED ON THE RETURN AS
THE TOTAL TAXABLE INTANGIBLES.  FROM THIS AMOUNT APPELLANT DEDUCTED:
$25,756.63 AS "DEBTS AND LIABILITIES CERTAIN"; $28,175.46 AS "RESERVES
FOR TAXES"; AND $758.13 AS "PROPORTION OF LOSS AND PREMIUM."  THERE IS
NO DISAGREEMENT WITH THESE COMPUTATIONS.  AS OBSERVED BY THE HIGHEST
COURT BELOW, THESE DEDUCTIONS "LEFT NO BALANCE OF ASSESSABLE PROPERTY
SUBJECT TO TAX." 

THE TAXING DISTRICT THEREFORE ASSESSED APPELLANT'S PROPERTY UNDER THE
PROVISO IN SEC. 54:4-22 WHICH DIRECTED AN ASSESSMENT OF NOT LESS THAN
15 PER CENT OF "THE SUM OF THE PAID-UP CAPITAL AND THE SURPLUS IN
EXCESS OF THE TOTAL OF ALL LIABILITIES" OF APPELLANT AS SHOWN BY ITS
ANNUAL STATEMENT FOR THE PRECEDING CALENDAR YEAR FILED WITH THE STATE
DEPARTMENT OF BANKING AND INSURANCE.  THE MANNER OF COMPUTATION OF THE
ASSESSMENT IS NOT EXPLICIT IN THE RECORD.  MOREOVER, THE OPINION OF THE
HIGHEST COURT OF NEW JERSEY IS SUBJECT TO SEVERAL INTERPRETATIONS AS TO
THE PROPER METHOD OF COMPUTING THE ASSESSMENT.  THE COURT STATED THAT
THE ASSESSMENT "MAY NOT BE LESS IN AMOUNT THAN 15 PERCENT OF THE PAID
UP CAPITAL AND SURPLUS AS DEFINED BY THE STATUTE."  IF BY THE PHRASE
"AS DEFINED BY THE STATUTE," THE COURT REFERRED TO THE LANGUAGE OF THE
PROVISO IN SEC. 54:4-22, "PAID-UP CAPITAL AND THE SURPLUS IN EXCESS OF
THE TOTAL OF ALL LIABILITIES", IT WOULD SEEM NECESSARY TO DEDUCT
LIABILITIES FROM CAPITAL AND SURPLUS IN DETERMINING THE BASIS FOR THE
15 PER CENT COMPUTATION.  THE BASIS OF COMPUTATION WOULD THEN BE
$496,999.70,  FN4  AND THE 15 PER CENT SUM, $74,549.95.  THE COURT
SUBSEQUENTLY STATED THAT "THE ASSESSMENT MAY EQUAL OR EXCEED 15 PERCENT
OF THE PAID-UP CAPITAL AND SURPLUS, AND DOES NOT NECESSARILY HAVE TO BE
PRECISELY THE SAME, BUT  ...  CAN NOT BE LESS IN AMOUNT THAN 15 PERCENT
OF THE PAID-UP CAPITAL AND SURPLUS."  SUCH REFERENCES TO "PAID-UP
CAPITAL AND SURPLUS," TOGETHER WITH THE COURT'S CHARACTERIZATION OF THE
TAX AS LAID ON NET WORTH, SUGGEST THAT THE ASSESSMENT IS COMPUTED
AGAINST APPELLANT'S NET WORTH OF $547,462.93.  ON THIS BASIS, HOWEVER,
THE 15 PER CENT SUM WOULD HAVE BEEN NOT LESS THAN $82,119.43, AND THE
PRESENT ASSESSMENT OF LESS AMOUNT WOULD NOT SATISFY THE COURT'S
INTERPRETATION OF THE STATUTE AS REQUIRING A LEVY OF NOT LESS THAN 15
PER CENT.  FOR OUR DISPOSITION OF THIS CASE, HOWEVER, IT IS UNNECESSARY
TO CHOOSE BETWEEN THESE CONFLICTING INTERPRETATIONS OF THE OPINION OF
THE COURT BELOW. 

CLEARLY THE STATE OF NEW JERSEY HAS NEGATIVED ANY PURPOSE TO
AUTHORIZE A TAX ASSESSMENT AGAINST THE APPELLANT'S UNITED STATES
BONDS.  THE COURT BELOW CONCEDED THAT THE SECURITIES INVOLVED WERE, AT
THE TIME OF THE ASSESSMENT, EXEMPT FROM STATE, MUNICIPAL OR LOCAL
TAXATION.  IT IS EQUALLY CLEAR, HOWEVER, THAT IN THE COMPUTATION OF THE
ASSESSMENT THE FACE VALUE OF APPELLANT'S GOVERNMENT BONDS, TOGETHER
WITH THE INTEREST THEREON, WAS IN FACT INCLUDED.  FN5 

CONTENDING THAT SEC. 54:4-22 AS THUS APPLIED CONTRAVENES PARAMOUNT
FEDERAL PROVISIONS, APPELLANT SOUGHT CANCELLATION OF THE ASSESSMENT ON
APPEAL TO THE DIVISION OF TAX APPEALS IN THE DEPARTMENT OF TAXATION AND
FINANCE OF NEW JERSEY.  THE DIVISION'S OPINION RECOMMENDING DISMISSAL
REFERRED TO THE PROCEEDING AS "A PERSONAL PROPERTY APPEAL."  ITS ORDER
OF DISMISSAL WAS REVERSED BY THE FORMER NEW JERSEY SUPREME COURT ON
WRIT OF CERTIORARI.  137 N.J.L. 444, 60 A.2D 265.  THAT COURT VIEWED
THE LEVY AS AN AD VALOREM TAX ON PERSONALTY; AFTER CONCLUDING THAT THE
TAX WOULD BE VALID ONLY IF THE BONDS AND INTEREST WERE EXCLUDED FROM
THE COMPUTATION, THE COURT CONSTRUED THE TAX STATUTE AS REQUIRING SUCH
EXCLUSION.  THIS RULING WAS REVERSED BY THE SUPREME COURT OF NEW JERSEY
AS ESTABLISHED UNDER THE PRESENT CONSTITUTION OF THE STATE.  1 N.J.
496, 64 A.2D 341.  THE HIGHEST COURT OF THE STATE DECLARED THAT THE
ASSESSMENT WAS "AGAINST THE INTANGIBLE PROPERTY" BUT "CONCLUDED THAT
THE TAX LEVIED  ...  IS NOT AN AD VALOREM TAX OR PROPERTY TAX BUT
RATHER IS A ...  TAX UPON THE NET WORTH OF THE COMPANY."  IT HELD THAT
SUCH A TAX, HAVING BEEN IMPOSED WITHOUT DISCRIMINATION, WAS
CONSTITUTIONALLY PERMISSIBLE.  FROM THIS DECISION THE PRESENT APPEAL
WAS TAKEN.  WE NOTED PROBABLE JURISDICTION, 28 U.S.C. SEC. 1257(2). 

THE ASSESSMENT MUST FALL AS IN CONFLICT WITH SEC. 3701 OF THE REVISED
STATUTES, PROVIDING THAT "ALL STOCKS, BONDS, TREASURY NOTES, AND OTHER
OBLIGATIONS OF THE UNITED STATES, SHALL BE EXEMPT FROM TAXATION BY OR
UNDER STATE OR MUNICIPAL OR LOCAL AUTHORITY." 

IF WE CONSIDER THE ASSESSMENT AS A 15 PER CENT LEVY EITHER AGAINST
CAPITAL AND SURPLUS LESS LIABILITIES OR AGAINST ENTIRE NET WORTH, WE
TAKE AS GUIDES TO OUR APPLICATION OF SEC. 3701 THE DECISIONS OF THIS
COURT ON THE RELATED CONSTITUTIONAL QUESTION OF IMMUNITY IN BANK OF
COMMERCE V. NEW YORK CITY, 2 BLACK 620(1863), AND THE BANK TAX CASE, 2
WALL.  200(1865), WHICH CONSIDERED ASSESSMENTS UNDER STATE TAXING
PROVISIONS NOT SUBSTANTIALLY DISTINGUISHABLE FROM NEW JERSEY'S SEC.
54:4-22 AS THUS APPLIED.  THE BANK OF COMMERCE CASE INVOLVED AN
ASSESSMENT LEVIED UPON THE ACTUAL VALUE OF THE CAPITAL STOCK, LESS THE
VALUE OF REAL ESTATE, OF A CORPORATE TAXPAYER WHICH HAD INVESTED IN
UNITED STATES SECURITIES ALL OF ITS ASSETS OTHER THAN ITS REALTY.  IN
HOLDING THE TAX INVALID AS AN INTERFERENCE WITH THE FEDERAL BORROWING
POWER, THE COURT REJECTED THE CONTENTION THAT THE ASSESSMENT SHOULD BE
SUSTAINED AS A LEVY UPON CORPORATE CAPITAL REPRESENTED BY FEDERAL
SECURITIES.  IN THE BANK TAX CASE THIS COURT CONSIDERED ASSESSMENTS
LEVIED AGAINST "THE AMOUNT OF ...  CAPITAL STOCK PAID IN OR SECURED TO
BE PAID IN, AND  ...  SURPLUS EARNINGS" OF BANKING CORPORATIONS WHICH
HAD INVESTED ALL OR A LARGE PART OF THEIR CAPITAL IN GOVERNMENT
SECURITIES.  AS AGAINST THE CONTENTION THAT THIS COURT SHOULD REGARD AS
CONCLUSIVE THE STATE COURT'S CHARACTERIZATION OF THE TAX AS ONE LAID ON
CAPITAL AND SURPLUS, IT WAS HELD THAT THE ASSESSMENTS WERE
UNCONSTITUTIONAL.  THE COURT OBSERVED THAT 

"WHEN THE CAPITAL  ...  THUS INVESTED IS MADE THE BASIS OF TAXATION
OF THE INSTITUTIONS, THERE IS GREAT DIFFICULTY IN SAYING THAT IT IS NOT
THE STOCK THUS CONSTITUTING THE CORPUS OR BODY OF THE CAPITAL THAT IS
TAXED.  IT IS NOT EASY TO SEPARATE THE PROPERTY IN WHICH THE CAPITAL IS
INVESTED FROM THE CAPITAL ITSELF.  ...  THE LEGISLATURE  ...  WHEN
PROVIDING FOR A TAX ON  ...  CAPITAL AT A VALUATION  ...  COULD NOT BUT
HAVE INTENDED A TAX UPON THE PROPERTY IN WHICH THE CAPITAL HAD BEEN
INVESTED.  ...  SUCH IS THE PRACTICAL EFFECT OF THE TAX  ...  "  2
WALL.  AT 208-209. 

AND IN BANK V. SUPERVISORS, 7 WALL.  26(1869), IT WAS HELD THAT
CERTAIN ISSUES OF UNITED STATES NOTES WERE EXEMPT FROM ASSESSMENT UNDER
THE STATUTE CONSIDERED IN THE BANK TAX CASE, SUPRA, IN VIEW OF A
CONGRESSIONAL PROVISION, WHICH FORESHADOWED SEC. 3701, THAT UNITED
STATES SECURITIES "SHALL BE EXEMPT FROM TAXATION BY OR UNDER STATE
AUTHORITY."  12 STAT. 346.  AND SEE FARMERS BANK V. MINNESOTA, 232 U.S.
516, 528(1914); HOME SAVINGS BANK V. DES MOINES, 205 U.S. 503, 512
513(1907). 

IT MATTERS NOT WHETHER THE TAX IS, AS APPELLEE CONTENDS, AN INDIRECT
OR EXCISE LEVY ON NET WORTH MEASURED BY CORPORATE CAPITAL AND SURPLUS
OR IS, AS APPELLANT URGES, A TAX ON PERSONAL PROPERTY BASED ON A
VALUATION GAUGED BY CAPITAL AND SURPLUS.  OUR INQUIRY IS NARROWED TO
WHETHER IN PRACTICAL OPERATION AND EFFECT THE TAX IS IN PART A TAX UPON
FEDERAL BONDS.  WE CAN ONLY CONCLUDE THAT THE TAX AUTHORIZED BY SEC.
54:4-22, WHETHER LEVIED AGAINST CAPITAL AND SURPLUS LESS LIABILITIES OR
AGAINST ENTIRE NET WORTH, IS IMPOSED ON SUCH SECURITIES REGARDLESS OF
THE ACCOUNTING LABEL EMPLOYED IN DESCRIBING IT. 

THE COURT BELOW, DESCRIBING THE TAX AS LEVIED ON NET WORTH AND
INDIRECTLY ON CAPITAL AND SURPLUS MEASURED IN PART BY TAX-EXEMPT
PROPERTY, HELD IT VALID ON THE AUTHORITY OF TRADESMENS NAT. BANK V.
OKLAHOMA TAX COMM'N, 309 U.S. 560(1940), AND EDUCATIONAL FILMS CORP. V.
WARD, 282 U.S. 379(1931).  THE DECISION IN THE TRADESMENS BANK CASE
DOES NOT BEAR UPON THE PRESENT CONTROVERSY.  THERE THE COURT UPHELD A
STATE TAX STATUTE ADOPTED PURSUANT TO AN ACT OF CONGRESS AUTHORIZING
STATE TAXATION OF NATIONAL BANKS.  MOREOVER, THE TAX THERE CONSIDERED,
AS WELL AS THAT UNDER SCRUTINY IN THE EDUCATIONAL FILMS CORP. CASE, WAS
NOT MEASURED IN EFFECT BY THE AMOUNT OF THE TAXPAYER'S FEDERAL
SECURITIES OR INTEREST BUT WAS A FRANCHISE TAX MEASURED BY NET INCOME. 
FN6 THE SECTION HERE IN QUESTION WAS NOT CONSIDERED AS IMPOSING A TAX
ON PRIVILEGE OR FRANCHISE BY EITHER THE NEW JERSEY LEGISLATURE  FN7  OR
THE TAXING OFFICIALS  FN8  OR BY ANY OF THE COURTS BELOW.  FN9  WHILE
WE ARE NOT LIMITED BY THE STATE'S CHARACTERIZATION OF ITS TAX, CF.
WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 443(1940), WE LIKEWISE DO
NOT THINK THE ASSESSMENT CAN BE SUSTAINED AS ONE LEVIED ON A CORPORATE
FRANCHISE.  IN CONSIDERING THE SIMILAR TAX ON CAPITAL AND EARNED
SURPLUS UNDER REVIEW IN THE BANK TAX CASE, SUPRA, THIS COURT DECLARED
THAT THE LEVY WAS "IMPOSED ON THE PROPERTY OF THE INSTITUTIONS, AS
CONTRADISTINGUISHED FROM A TAX UPON THEIR PRIVILEGES OR FRANCHISES."  2
WALL.  AT 209.    IF THE ASSESSMENT IS CONSIDERED TO BE 15 PER CENT OF
CAPITAL AND SURPLUS LESS LIABILITIES OR OF ENTIRE NET WORTH, WE AGREE
WITH THE COURT BELOW THAT THE TAX LEVIED UNDER SEC. 54:4-22 DOES NOT
IMPOSE A DISCRIMINATORY BURDEN ON FEDERAL ISSUES AS DID THE TAX STATUTE
AGAINST WHICH SEC. 3701 WAS INVOKED IN MISSOURI INS. CO. V. GEHNER, 281
U.S. 313(1930).  BUT SINCE THE DECISION IN BANK OF COMMERCE V. NEW YORK
CITY, SUPRA, IT HAS BEEN UNDERSTOOD THAT A TAX ON CORPORATE CAPITAL
MEASURED BY FEDERAL SECURITIES MAY BE INVALID EVEN THOUGH IMPOSED
WITHOUT DISCRIMINATION AGAINST FEDERAL OBLIGATIONS. 

IF, HOWEVER, THE ASSESSMENT OF $75,700 IS VIEWED AS IF IT WERE LEVIED
EXCLUSIVELY UPON APPELLANT'S NET WORTH REMAINING AFTER DEDUCTION OF
GOVERNMENT BONDS AND INTEREST, THE ASSESSMENT WOULD BE DISCRIMINATORY
SINCE IT WOULD BE LEVIED AT THE RATE OF OVER 79 PER CENT OF APPELLANT'S
ASSESSABLE VALUATION OF $94,936.87 RATHER THAN AT THE RATE OF 15 PER
CENT PRESCRIBED BY SEC. 54:4-22.  SUCH INCREASED RATE OF ASSESSMENT
WOULD RESULT SOLELY FROM APPELLANT'S OWNERSHIP OF FEDERAL ISSUES.  IN
THE GEHNER CASE, SUPRA, THIS COURT HELD THAT SEC. 3701 WAS OFFENDED BY
A COMPUTATION WHICH ALLOWED DEDUCTION OF THE FULL AMOUNT OF THE
TAXPAYER'S FEDERAL BONDS YET AT THE SAME TIME PARED DOWN THE NET VALUE
OF OTHER ALLOWABLE EXEMPTIONS, TO THE TAXPAYER'S DISADVANTAGE, SOLELY
BECAUSE OF SUCH OWNERSHIP OF FEDERAL BONDS.  CONSISTENTLY WITH THE
GEHNER DECISION, WE CAN ONLY HOLD THAT SEC. 3701 IS VIOLATED BY AN
AUTOMATIC INCREASE IN THE RATE OF ASSESSMENT APPLIED TO APPELLANT'S
VALUATION AFTER DEDUCTION OF FEDERAL BONDS. 

THE RESULT WHICH IS THUS INDICATED IS ALSO REQUIRED BY THE
LEGISLATIVE PURPOSE, WHICH WE HAVE FOUND IN SEC. 3701, "TO PREVENT
TAXES WHICH DIMINISH IN THE SLIGHTEST DEGREE THE MARKET VALUE OR THE
INVESTMENT ATTRACTIVENESS OF OBLIGATIONS ISSUED BY THE UNITED STATES IN
AN EFFORT TO SECURE NECESSARY CREDIT."  SMITH V. DAVIS, 323 U.S. 111,
117(1944). 

THE LEGISLATIVE PURPOSE OF SEC. 3701 ALSO REQUIRED THE EXEMPTION FROM
ASSESSMENT UNDER SEC. 54:4-22 OF INTEREST ON FEDERAL SECURITIES WHICH
HAD ACCRUED BUT WAS NOT YET PAID.  CF. HIBERNIA SAVINGS & LOAN SOCIETY
V. SAN FRANCISCO, 200 U.S. 310(1906).  CONGRESS ON OCCASION HAS
EXPRESSLY DECLARED AN EXEMPTION FROM STATE TAXATION OF INTEREST ON
FEDERAL SECURITIES,  FN10 AND WE DO NOT FIND A CONTRARY PURPOSE
DISCLOSED BY THE OMISSION FROM SEC. 3701 OF THE PHRASE "AND INTEREST
THEREON." 

THE ASSESSMENT FOR TAX UNDER SEC. 54:4-22 OF THE NEW JERSEY REVISED
STATUTES AS LEVIED IS IN CONFLICT WITH THE PARAMOUNT PROVISION OF SEC.
3701 OF THE REVISED STATUTES.  THE DECISION OF THE SUPREME COURT OF NEW
JERSEY IS REVERSED. 

FN1  SECTION 54:4-22 IS INCLUDED UNDER "TITLE 54.  SUBTITLE 2. 
TAXATION OF REAL AND PERSONAL PROPERTY IN GENERAL." 

FN2  BY AN AMENDMENT ADOPTED IN 1945, BUT NOT OPERATIVE ON THE
ASSESSMENT DATE HERE INVOLVED, THE LAST SENTENCE OF SEC. 54:4-22 AS
QUOTED ABOVE WAS DELETED.  N.J. REV. STAT. CUM. SUPP., LAWS OF 1945,
1946, 1947, SEC. 54:4-22. 

FN3  THE RETURN WAS ON A FORM FURNISHED BY THE TAXING DISTRICT AND
ENTITLED "PERSONAL PROPERTY RETURN OF STOCK INSURANCE COMPANY FOR YEAR
1945 UNDER SECTION 54:4-22 OF REVISED STATUTES." 

FN4  THE FINANCIAL STATEMENT FOR 1943 REFLECTED THE FOLLOWING ITEMS:
PAID-UP CAPITAL $250,000; PAID-IN SURPLUS $250,000; EARNED SURPLUS
$47,462.93; LIABILITIES $50,463.23; UNITED STATES TREASURY BONDS AND
ACCRUED INTEREST OF $452,526.06.  RESERVES AMOUNTED TO $161,047.74, NOT
INCLUDING RESERVES FOR FEDERAL INCOME TAX WHICH ARE NOT SHOWN IN THE
RECORD.  IT SEEMS PROBABLE THAT IF THE NEW JERSEY COURT DID APPROVE THE
CONSTRUCTION OF SEC. 54:4-22 SUGGESTED ABOVE, IT MEANT TO AUTHORIZE THE
DEDUCTION OF NONRESERVE LIABILITIES ONLY.  BOTH APPELLANT AND APPELLEE
HAVE ASSUMED IN THEIR BRIEFS THAT IF ANY DEDUCTION OF LIABILITIES FROM
CAPITAL AND SURPLUS WAS AUTHORIZED UNDER THE STATUTE, ONLY NONRESERVE
LIABILITIES WERE DEDUCTIBLE. 

FN5  IF UNDER THE PROVISO OF SEC. 54:4-22 "THE TOTAL OF ALL
LIABILITIES" OF APPELLANT IS DEDUCTIBLE FROM "THE PAID-UP CAPITAL AND
THE SURPLUS," AND THE 15 PER CENT MUST BE COMPUTED AGAINST THE FIGURE
OF $496,999.70, DEDUCTION THEREFROM OF APPELLANT'S UNITED STATES BONDS
AND INTEREST LEAVES ONLY $44,473.64.  IF, HOWEVER, THE BASIS OF
COMPUTATION IS APPELLANT'S NET WORTH OF $547,462.93, THEN THERE IS A
REMAINDER OF $94,936.87 AFTER DEDUCTING THE GOVERNMENT BONDS AND
INTEREST.  BUT NEITHER THE APPELLEE NOR ANY OF THE COURTS BELOW HAS
SOUGHT TO UPHOLD THE ASSESSMENT OF $75,700 AS HAVING BEEN COMPUTED
SOLELY AGAINST THIS EXCESS OVER BONDS AND INTEREST.  IN FACT IT MAY BE
IMPLIED FROM APPELLEE'S BRIEF THAT IF THE AMOUNT OF FEDERAL BONDS AND
INTEREST MUST BE DEDUCTED FROM NET WORTH, THE EXCESS OF NET WORTH AFTER
SUCH DEDUCTION IS SUBJECT TO ASSESSMENT AT THE 15 PER CENT RATE. 

FN6  IN ALL OTHER DECISIONS IN WHICH A STATE TAX HAS BEEN UPHELD,
AGAINST THE CONTENTION THAT IT WAS IN EFFECT LEVIED ON A CORPORATE
TAXPAYER'S FEDERAL BONDS OR INTEREST, THE TAX WAS A FRANCHISE LEVY,
MEASURED EITHER BY AMOUNT OF BANK DEPOSITS, SOCIETY FOR SAVINGS V.
COITE, 6 WALL.  594(1868); PROVIDENT INSTITUTION V. MASSACHUSETTS, 6
WALL.  611(1868), OR BY THE MARKET VALUE OF THE TAXPAYER'S SHARES,
HAMILTON CO. V. MASSACHUSETTS, 6 WALL.  632(1868), OR BY DIVIDENDS
DECLARED OR PAID, HOME INS. CO. V. NEW YORK, 134 U.S. 594(1890). 

FN7  SEE NOTES 1 AND 2 SUPRA. 

FN8  SEE NOTE 3 SUPRA. 

FN9  THE HIGHEST COURT OF NEW JERSEY DECLARED THAT ITS DECISION WAS
REQUIRED "WHETHER THE TAXING STATUTE IS A FRANCHISE TAX OR A TAX UPON
THE NET WORTH OF THE COMPANY, WHICH LATTER WE HOLD THE TAX UNDER THE
STATUTE BEFORE US TO BE."  1 N.J. 502, 64 A.2D 344. 

FN10  SEE 16 STAT. 272; 39 STAT. 1000, 1003; 40 STAT. 288, 291. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

I AGREE THAT NEW JERSEY CANNOT TAX UNITED STATES BONDS MADE TAX
EXEMPT BY CONGRESS.  THIS COURT HAS CONSISTENTLY HELD, HOWEVER, THAT
SUCH BONDS NEED NOT BE EXCLUDED FROM COMPUTATION OF A JUSTIFIABLE STATE
TAX IMPOSED ON CORPORATIONS CREATED BY OR DOING BUSINESS WITHIN THE
STATE.  A SHORT TIME AGO WE SAID THAT "THE POWER OF A STATE TO LEVY A
TAX ON A LEGITIMATE SUBJECT, SUCH AS A FRANCHISE, MEASURED BY NET
ASSETS OR NET INCOME INCLUDING TAX-EXEMPT FEDERAL INSTRUMENTALITIES OR
THEIR INCOME IS LIKEWISE WELL SETTLED."  TRADESMENS BANK V. TAX COMM'N,
309 U.S. 560, 564; AND SEE CASES THERE CITED.  I DO NOT SEE HOW THE
COURT'S OPINION HERE CAN POSSIBLY BE RECONCILED WITH THAT PRINCIPLE,
FOR IT SEEMS CLEAR TO ME THAT THIS NEW JERSEY TAX AS APPLIED FALLS
WITHIN SUCH A CLASSIFICATION. 

THE STATE LAW UNDER WHICH THIS TAX WAS LEVIED APPLIES ONLY TO STOCK
INSURANCE COMPANIES ORGANIZED UNDER NEW JERSEY LAWS.  THE FIRST PART
PROVIDES FOR A TAX ON INTANGIBLE PROPERTY TO BE COMPUTED BY A FORMULA
WHICH EXPRESSLY EXCLUDES TAX-EXEMPT BONDS, AS WELL AS CERTAIN RESERVES,
FROM THE PROPERTY SUBJECT TO TAX.  TO AVOID THE POSSIBILITY THAT
OCCASIONALLY THIS FORMULA MIGHT PRODUCE NO TAX AT ALL, NEW JERSEY ADDED
A PROVISO SETTING A MINIMUM ASSESSMENT OF 15% OF CORPORATE NET WORTH. 
THE NECESSITY OF SUCH A MINIMUM IS CLEAR, FOR THE STATUTE ALSO PROVIDES
THAT "NO FRANCHISE TAX SHALL BE IMPOSED UPON ANY INSURANCE COMPANY
INCLUDED IN THIS SECTION."  THIS TAX ON AN ASSESSMENT MEASURED BY 15%
OF NET WORTH IS THE ONLY NEW JERSEY TAX TO WHICH APPELLANT, A STOCK
INSURANCE COMPANY CREATED BY AND DOING BUSINESS IN NEW JERSEY, WAS
SUBJECTED FOR THE YEAR IN QUESTION.  THUS, BY THE TERMS OF THE STATUTE
AND IN ACTUAL PRACTICE, THIS TAX AT LEAST REPLACED A FRANCHISE TAX. 
CERTAINLY IT WAS LEVIED "ON A LEGITIMATE SUBJECT," WITHIN THE MEANING
OF THE TRADESMENS BANK OPINION.  I CAN SEE NO PRACTICAL DISTINCTION
BETWEEN THIS NEW JERSEY TAX AND A FRANCHISE TAX, UNLESS THE COURT IS
NOW DEPARTING FROM THE SOUND PRINCIPLE OF DETERMINING THE
CONSTITUTIONALITY OF A STATE TAX "BY ITS OPERATION RATHER THAN BY
PARTICULAR DESCRIPTIVE LANGUAGE WHICH MAY HAVE BEEN APPLIED TO IT." 
EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, 387.  YET ONLY BY MAKING
SUCH A DISTINCTION CONSTITUTIONALLY DETERMINATIVE CAN THE NEW JERSEY
TAX BE INVALIDATED.  SEE TRADESMENS BANK V. TAX COMM'N, SUPRA;
EDUCATIONAL FILMS CORP. V. WARD, SUPRA. IF NEW JERSEY HAD SET A MINIMUM
TAX IN DOLLARS WHICH EXCEEDED THE TAX ON APPELLANT HERE, WE COULD NOT
SAY THAT THE TAX WAS AN UNREASONABLE CHARGE FOR THE ADVANTAGES ACCORDED
APPELLANT BY THE STATE.  THAT THE MINIMUM TAX ACTUALLY ENACTED VARIES
FAIRLY WITH NET WORTH, AND THAT APPELLANT HAPPENS TO OWN UNITED STATES
BONDS, SHOULD NOT REQUIRE US TO STRIKE DOWN THIS TAX AS
UNCONSTITUTIONAL.  AND THERE WAS CERTAINLY NO PURPOSE TO PUT A HEAVIER
TAX BURDEN ON APPELLANT MERELY BECAUSE IT OWNED TAX-EXEMPT BONDS.  CF.
MISSOURI INS. CO. V. GEHNER, 281 U.S. 313, 318. 

BUT EVEN UNDER THE COURT'S CONTRARY REASONING ON THAT POINT, I THINK
THE TAX SHOULD STAND.  IT WAS LEVIED ON ONLY $75,700 WORTH OF
APPELLANT'S PROPERTY.  APPELLANT CONCEDED IN ITS BRIEF THAT ITS "NET
WORTH" EXCEEDED THE VALUE OF ITS TAX-EXEMPT FEDERAL SECURITIES BY
$94,936.87.  FN1  THUS THE TAX IMPOSED ON APPELLANT DID NOT HAVE TO
TOUCH ITS TAX-EXEMPT BONDS.  THE COURT'S OPINION ACKNOWLEDGES, AS IT
MUST, THAT NEW JERSEY "CLEARLY  ...  NEGATIVED ANY PURPOSE" TO INCLUDE
THEM IN THE TAX ASSESSMENT.  A LEGISLATIVE PURPOSE TO EXCLUDE THESE
BONDS FROM ASSESSMENT IS EXPRESS IN THE FIRST PART OF THE NEW JERSEY
STATUTE.  A CONTRARY PURPOSE IN THE PROVISO UNDER WHICH APPELLANT IS
TAXED SHOULD NOT BE DRAWN BY THIS COURT WHEN APPELLANT'S TAX-EXEMPT
BONDS NEED NOT BE TOUCHED BY THE TAX.  THE ASSESSMENT OF 15% OF NET
WORTH LEAVES UNTAXED 85% OF THE NET WORTH, WHICH MORE THAN COVERS THE
AMOUNT OF THE TAX-EXEMPT BONDS.  WE CANNOT SAY THAT NEW JERSEY DID NOT
INTEND TO ACCOMPLISH JUST THIS RESULT BY LEAVING 85% UNTAXED.  UNDER
THESE CIRCUMSTANCES THE DECISION IN MISSOURI INS. CO. V. GEHNER, SUPRA,
ON WHICH THE COURT RELIES, DOES NOT BAR UPHOLDING THE NEW JERSEY TAX. 
THE GEHNER OPINION RECOGNIZED THE POWER OF THE STATE TO APPLY ITS TAX
RATE TO A COMPANY'S NET WORTH IN EXCESS OF TAX-EXEMPT BONDS. 

MOREOVER, THE NEW JERSEY LAW DOES NOT DISCRIMINATE AGAINST INSURANCE
COMPANIES OWNING GOVERNMENT BONDS.  THE STATE STATUTE HELD INVALID IN
THE GEHNER CASE HAD GRANTED TAX EXEMPTIONS FOR STATUTORY RESERVES,
ETC., BUT HAD DEPRIVED INSURANCE COMPANIES OF THESE EXEMPTIONS TO THE
EXTENT THAT THE COMPANIES OWNED TAX-EXEMPT FEDERAL BONDS.  THIS COURT
HELD SUCH "DISCRIMINATION" UNCONSTITUTIONAL.  BUT THAT HOLDING CAN HAVE
NO APPLICABILITY TO THE NEW JERSEY STATUTE, UNDER WHICH FEDERAL BONDS
IN NO WAY DEPRIVE THEIR OWNERS OF ANY STATE EXEMPTION.  AS WE HAVE
POINTED OUT, THE NEW JERSEY TAX LAW DID NOT INCREASE APPELLANT'S BURDEN
MERELY BECAUSE APPELLANT OWNED TAX-EXEMPT BONDS.  INDEED, APPELLANT'S
TAX IS SUBSTANTIALLY LOWER THAN IF THE FUNDS INVESTED IN THESE BONDS
HAD BEEN INVESTED IN NON-EXEMPT PROPERTY. 

I THINK THE DECISION OF THE NEW JERSEY COURT SHOULD BE AFFIRMED. 

FN1  THE COURT SUGGESTS THAT PERHAPS THE STATUTE SHOULD BE CONSTRUED
AS REQUIRING LIABILITIES OTHER THAN RESERVES TO BE SUBTRACTED FROM NET
WORTH BEFORE THE ASSESSMENT IS COMPUTED, IN WHICH CASE THE EXCESS OVER
GOVERNMENT BONDS WOULD BE ONLY $44,473.64.  I HAD NOT UNDERSTOOD THE
APPELLANT TO RAISE SUCH A QUESTION IN NEW JERSEY OR HERE, NOR DID I
KNOW THAT APPELLANT CHALLENGED THE TAX AS BEING ON TOO LOW AN
ASSESSMENT.  MOREOVER, IN DISCOVERING THIS SUPPOSED AMBIGUITY IN THE
STATUTE THE COURT IS SUPPORTED ONLY BY THE DOUBTFUL PREMISE THAT THE
STATE COURT, IN THE ABSENCE OF ANY ALLEGATION OR PROOF THAT THE TAX
LEVIED WAS TOO SMALL, WOULD BE REQUIRED TO RECOMPUTE THE TAX ITSELF AND
THEN EITHER REMAND THE CASE OR CONSTRUE THE STATUTE IN SUCH A WAY AS TO
JUSTIFY WHAT MAY HAVE BEEN MERELY AN ARITHMETICAL ERROR.  FOR AN
INSTANCE IN WHICH A STATE COURT HAS EXPRESSLY REFUSED TO DO EITHER, SEE
MISSOURI INS. CO. V. GEHNER, 281 U.S. 313, 319.  FURTHERMORE, SUCH AN
INTERPRETATION WOULD HAVE ABSURD CONSEQUENCES.  UNDER IT, A COMPANY
COULD AVOID TAXATION COMPLETELY BY MERELY BORROWING A FEW MILLION
DOLLARS TWO DAYS BEFORE THE OPERATIVE DATE OF ASSESSMENT AND PAYING IT
BACK TWO DAYS AFTERWARDS:  THE NET WORTH OF THE COMPANY WOULD NOT BE
ALTERED BY THIS TRANSACTION, BUT THE LIABILITIES WOULD BE INCREASED
(AND THE ASSESSMENT ACCORDINGLY REDUCED) BY THE AMOUNT OF THE LOAN
OBTAINED.  AS APPELLANT CONCEDES IN ITS BRIEF, SUBTRACTING LIABILITIES
FROM NET WORTH (WHICH IS ITSELF DETERMINED BY SUBTRACTING LIABILITIES
FROM ASSETS) WOULD CONFLICT WITH "ADMINISTRATIVE INTERPRETATION AND
PRACTICE."  IT WOULD ALSO CONFLICT WITH THE STATE COURT'S STATEMENT
THAT THE TAX IS UPON NET WORTH.  I CANNOT ASCRIBE SUCH A SELF-DEFEATING
INTERPRETATION TO THE HIGHEST COURT OF NEW JERSEY. 
..END :























UNITED STATES V. ALPERS, 338 U.S. 680 


NO. 217.  ARGUED DECEMBER 14, 1949.  - DECIDED FEBRUARY 6, 1950.  - 175
F.2D 137, REVERSED. 


1.  OBSCENE PHONOGRAPH RECORDS ARE WITHIN THE PROHIBITION OF SEC. 245
OF THE CRIMINAL CODE, WHICH FORBIDS THE INTERSTATE SHIPMENT OF ANY
OBSCENE "BOOK, PAMPHLET, PICTURE, MOTION-PICTURE FILM, PAPER, LETTER,
WRITING, PRINT, OR OTHER MATTER OF INDECENT CHARACTER."  PP. 680-685. 

2.  THE RULE OF EJUSDEM GENERIS MAY NOT BE APPLIED WHEN TO DO SO
WOULD DEFEAT THE OBVIOUS PURPOSE OF THE LEGISLATION.  PP. 682-683. 

UNITED STATES V. ALPERS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

RESPONDENT WAS CONVICTED IN THE DISTRICT COURT OF VIOLATING SEC. 245
OF THE CRIMINAL CODE.  THE COURT OF APPEALS REVERSED.  175 F.2D 137. 
THIS COURT GRANTED CERTIORARI.  338 U.S. 813.  REVERSED, P. 685. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE SHIPMENT OF OBSCENE
PHONOGRAPH RECORDS IN INTERSTATE COMMERCE IS PROHIBITED BY SEC. 245 OF
THE CRIMINAL CODE, WHICH MAKES ILLEGAL THE INTERSTATE SHIPMENT OF ANY
"OBSCENE  ...  BOOK, PAMPHLET, PICTURE, MOTION-PICTURE FILM, PAPER,
LETTER, WRITING, PRINT, OR OTHER MATTER OF INDECENT CHARACTER." 

RESPONDENT WAS CHARGED BY AN INFORMATION IN THREE COUNTS WITH
KNOWINGLY DEPOSITING WITH AN EXPRESS COMPANY FOR CARRIAGE IN INTERSTATE
COMMERCE PACKAGES "CONTAINING CERTAIN MATTER OF AN INDECENT CHARACTER,
TO-WIT:  PHONOGRAPH RECORDS IMPRESSED WITH RECORDINGS OF OBSCENE, LEWD,
LASCIVIOUS AND FILTHY LANGUAGE AND OBSCENE, LEWD, LASCIVIOUS AND FILTHY
STORIES."  RESPONDENT, HAVING WAIVED JURY TRIAL, WAS FOUND GUILTY BY
THE DISTRICT COURT ON TWO COUNTS AND WAS ASSESSED A FINE ON EACH.  THE
COURT OF APPEALS REVERSED.  175 F.2D 137.  WE GRANTED CERTIORARI TO
EXAMINE THE APPLICABILITY OF SEC. 245 OF THE CRIMINAL CODE TO THE FACTS
OF THIS CASE.  338 U.S. 813. 

THE PERTINENT PROVISIONS OF THE STATUTE ARE AS FOLLOWS: 

"WHOEVER SHALL  ...  KNOWINGLY DEPOSIT OR CAUSE TO BE DEPOSITED WITH
ANY EXPRESS COMPANY OR OTHER COMMON CARRIER (FOR CARRIAGE IN INTERSTATE
COMMERCE) ANY OBSCENE, LEWD, OR LASCIVIOUS, OR ANY FILTHY BOOK,
PAMPHLET, PICTURE, MOTION-PICTURE FILM, PAPER, LETTER, WRITING, PRINT,
OR OTHER MATTER OF INDECENT CHARACTER  ...  SHALL BE FINED NOT MORE
THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH."  41 STAT.
1060, 18 U.S.C. SEC. 396, NOW 18 U.S.C. SEC. 1462. 

IT IS CONCEDED THAT THE PHONOGRAPH RECORDS WERE OBSCENE AND
INDECENT.  THE ONLY QUESTION IS WHETHER THEY COME WITHIN THE
PROHIBITION OF THE STATUTE. 

WE ARE AWARE THAT THIS IS A CRIMINAL STATUTE AND MUST BE STRICTLY
CONSTRUED.  THIS MEANS THAT NO OFFENSE MAY BE CREATED EXCEPT BY THE
WORDS OF CONGRESS USED IN THEIR USUAL AND ORDINARY SENSE.  THERE ARE NO
CONSTRUCTIVE OFFENSES.  UNITED STATES V. RESNICK, 299 U.S. 207, 210. 
THE MOST IMPORTANT THING TO BE DETERMINED IS THE INTENT OF CONGRESS. 
THE LANGUAGE OF THE STATUTE MAY NOT BE DISTORTED UNDER THE GUISE OF
CONSTRUCTION, OR SO LIMITED BY CONSTRUCTION AS TO DEFEAT THE MANIFEST
INTENT OF CONGRESS.  UNITED STATES V. RAYNOR, 302 U.S. 540, 552.  FN1 

IN INTERPRETING THE STATUTE AS APPLIED TO THIS CASE THE COURT OF
APPEALS INVOKED THE RULE OF EJUSDEM GENERIS.  SINCE THE WORDS "BOOK,
PAMPHLET, PICTURE, MOTION-PICTURE FILM, PAPER, LETTER, WRITING, PRINT"
APPEARING IN THE STATUTE REFER TO OBJECTS COMPREHENSIBLE BY SIGHT ONLY,
THE COURT CONSTRUED THE GENERAL WORDS "OTHER MATTER OF INDECENT
CHARACTER" TO BE LIMITED TO MATTER OF THE SAME GENUS.  THE COURT OF
APPEALS HELD PHONOGRAPH RECORDS WITHOUT THE STATUTE, SO INTERPRETED,
SINCE PHONOGRAPH RECORDS ARE COMPREHENDED BY THE SENSE OF HEARING. 

WHEN PROPERLY APPLIED, THE RULE OF EJUSDEM GENERIS IS A USEFUL CANON
OF CONSTRUCTION.  BUT IT IS TO BE RESORTED TO NOT TO OBSCURE AND DEFEAT
THE INTENT AND PURPOSE OF CONGRESS, BUT TO ELUCIDATE ITS WORDS AND
EFFECTUATE ITS INTENT.  IT CANNOT BE EMPLOYED TO RENDER GENERAL WORDS
MEANINGLESS.  MASON V. UNITED STATES, 260 U.S. 545, 554.  WHAT IS OR IS
NOT A PROPER CASE FOR APPLICATION OF THE RULE WAS DISCUSSED IN GOOCH V.
UNITED STATES, 297 U.S. 124.  IN THAT CASE A BANDIT AND A COMPANION HAD
KIDNAPED TWO POLICE OFFICERS FOR THE PURPOSE OF AVOIDING ARREST AND HAD
TRANSPORTED THEM ACROSS A STATE LINE.  THE DEFENDANT WAS CONVICTED OF
KIDNAPING UNDER A FEDERAL STATUTE WHICH MADE IT AN OFFENSE TO TRANSPORT
ACROSS STATE LINES ANY PERSON WHO HAD BEEN KIDNAPED "AND HELD FOR
RANSOM OR REWARD OR OTHERWISE."  THE POLICE OFFICERS HAD BEEN HELD NOT
FOR RANSOM OR REWARD BUT FOR PROTECTION, AND IT WAS CONTENDED THAT THE
WORDS "OR OTHERWISE" DID NOT COVER THE DEFENDANT'S CONDUCT, SINCE UNDER
THE RULE OF EJUSDEM GENERIS, THE GENERAL PHRASE WAS LIMITED IN MEANING
TO SOME KIND OF MONETARY REWARD.  THIS COURT REJECTED SUCH LIMITING
APPLICATION OF THE RULE, SAYING: 

"THE RULE OF EJUSDEM GENERIS, WHILE FIRMLY ESTABLISHED, IS ONLY AN
INSTRUMENTALITY FOR ASCERTAINING THE CORRECT MEANING OF WORDS WHEN
THERE IS UNCERTAINTY.  ORDINARILY, IT LIMITS GENERAL TERMS WHICH FOLLOW
SPECIFIC ONES TO MATTERS SIMILAR TO THOSE SPECIFIED; BUT IT MAY NOT BE
USED TO DEFEAT THE OBVIOUS PURPOSE OF LEGISLATION.  AND, WHILE PENAL
STATUTES ARE NARROWLY CONSTRUED, THIS DOES NOT REQUIRE REJECTION OF
THAT SENSE OF THE WORDS WHICH BEST HARMONIZES WITH THE CONTEXT AND THE
END IN VIEW."  297 U.S. AT 128. 

WE THINK THAT TO APPLY THE RULE OF EJUSDEM GENERIS TO THE PRESENT
CASE WOULD BE "TO DEFEAT THE OBVIOUS PURPOSE OF LEGISLATION."  THE
OBVIOUS PURPOSE OF THE LEGISLATION UNDER CONSIDERATION WAS TO PREVENT
THE CHANNELS OF INTERSTATE COMMERCE FROM BEING USED TO DISSEMINATE ANY
MATTER THAT, IN ITS ESSENTIAL NATURE, COMMUNICATES OBSCENE, LEWD,
LASCIVIOUS OR FILTHY IDEAS.  THE STATUTE IS MORE FULLY SET OUT IN THE
MARGIN.  FN2  IT WILL BE NOTED THAT CONGRESS LEGISLATED WITH RESPECT TO
A NUMBER OF EVILS IN ADDITION TO THOSE PROSCRIBED BY THE PORTION OF THE
STATUTE UNDER WHICH RESPONDENT WAS CHARGED.  STATUTES ARE CONSTRUED IN
THEIR ENTIRE CONTEXT.  THIS IS A COMPREHENSIVE STATUTE, WHICH SHOULD
NOT BE CONSTRICTED BY A MECHANICAL RULE OF CONSTRUCTION. 

WE FIND NOTHING IN THE STATUTE OR ITS HISTORY TO INDICATE THAT
CONGRESS INTENDED TO LIMIT THE APPLICABLE PORTION OF THE STATUTE TO
SUCH INDECENT MATTER AS IS COMPREHENDED THROUGH THE SENSE OF SIGHT. 
TRUE, THIS STATUTE WAS AMENDED IN 1920 TO INCLUDE "MOTION-PICTURE
FILM."  WE ARE NOT PERSUADED THAT CONGRESS, BY ADDING MOTION-PICTURE
FILM TO THE SPECIFIC PROVISIONS OF THE STATUTE, EVIDENCED AN INTENT
THAT OBSCENE MATTER NOT SPECIFICALLY ADDED WAS WITHOUT THE PROHIBITION
OF THE STATUTE; NOR DO WE THINK THAT CONGRESS INTENDED THAT ONLY VISUAL
OBSCENE MATTER WAS WITHIN THE PROHIBITION OF THE STATUTE.  THE FIRST
WORLD WAR GAVE CONSIDERABLE IMPETUS TO THE MAKING AND DISTRIBUTION OF
MOTION-PICTURE FILMS.  AND IN 1920 THE PUBLIC WAS CONSIDERABLY ALARMED
AT THE INDECENCY OF MANY OF THE FILMS.  FN3  IT THUS APPEARS THAT WITH
RESPECT TO THIS AMENDMENT, CONGRESS WAS PREOCCUPIED WITH MAKING DOUBLY
SURE THAT MOTION-PICTURE FILM WAS WITHIN THE ACT, AND WAS CONCERNED
WITH NOTHING MORE OR LESS.  FN4 

UPON THIS RECORD WE COULD NOT HOLD, NOR DO WE WISH TO BE UNDERSTOOD
TO HOLD, THAT THE APPLICABLE PORTION OF THE STATUTE IS ALL-INCLUSIVE. 
AS WE HAVE POINTED OUT, THE SAME STATUTE CONTAINS OTHER PROVISIONS
RELATING TO OBJECTS INTENDED FOR AN INDECENT OR IMMORAL USE.  BUT THE
PORTION OF THE STATUTE HERE IN ISSUE DOES PROSCRIBE THE DISSEMINATION
OF MATTER WHICH, IN ITS ESSENTIAL NATURE, COMMUNICATES OBSCENE IDEAS. 
WE ARE CLEAR THEREFORE THAT OBSCENE PHONOGRAPH RECORDS ARE WITHIN THE
MEANING OF THE ACT.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED,
AND THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  SEE HORACK, THE DISINTEGRATION OF STATUTORY CONSTRUCTION, 24
IND. L.J. 335, 343-344(1949). 

FN2  "WHOEVER SHALL BRING OR CAUSE TO BE BROUGHT INTO THE UNITED
STATES, OR ANY PLACE SUBJECT TO THE JURISDICTION THEREOF, FROM ANY
FOREIGN COUNTRY, OR SHALL THEREIN KNOWINGLY DEPOSIT OR CAUSE TO BE
DEPOSITED WITH ANY EXPRESS COMPANY OR OTHER COMMON CARRIER (FOR
CARRIAGE IN INTERSTATE OR FOREIGN COMMERCE) ANY OBSCENE, LEWD, OR
LASCIVIOUS, OR ANY FILTHY BOOK, PAMPHLET, PICTURE, MOTION-PICTURE FILM,
PAPER, LETTER, WRITING, PRINT, OR OTHER MATTER OF INDECENT CHARACTER,
OR ANY DRUG, MEDICINE, ARTICLE, OR THING DESIGNED, ADAPTED, OR INTENDED
FOR PREVENTING CONCEPTION, OR PRODUCING ABORTION, OR FOR ANY INDECENT
OR IMMORAL USE; OR ANY WRITTEN OR PRINTED CARD, LETTER, CIRCULAR, BOOK,
PAMPHLET, ADVERTISEMENT, OR NOTICE OF ANY KIND GIVING INFORMATION,
DIRECTLY OR INDIRECTLY, WHERE, HOW, OR OF WHOM, OR BY WHAT MEANS ANY OF
THE HEREINBEFORE MENTIONED ARTICLES, MATTERS, OR THINGS MAY BE OBTAINED
OR MADE; OR WHOEVER SHALL KNOWINGLY TAKE OR CAUSE TO BE TAKEN FROM SUCH
EXPRESS COMPANY OR OTHER COMMON CARRIER ANY MATTER OR THING THE
DEPOSITING OF WHICH FOR CARRIAGE IS HEREIN MADE UNLAWFUL, SHALL BE
FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR
BOTH."  18 U.S.C. SEC. 396, NOW 18 U.S.C. SEC. 1462. 

FN3  SEE THE MOTION PICTURE INDUSTRY, 254 ANNALS OF THE AMERICAN
ACADEMY OF POLITICAL AND SOCIAL SCIENCE, PP. 7-9, 140, 155, 157(1947). 

FN4  H.R. REP. NO. 580, 66TH CONG., 2D SESS. (1920); S. REP. NO. 528,
66TH CONG., 2D SESS. (1920); 59 CONG. REC. 2178-2179, 7162, 7297, 8280,
8334(1920). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE
JACKSON CONCUR, DISSENTING. 

I AM UNABLE TO AGREE THAT THE CONDUCT OF THIS RESPONDENT WAS MADE AN
OFFENSE BY THE LANGUAGE OF THE STATUTORY PROVISION ON WHICH HIS
CONVICTION RESTS.  THAT PROVISION FORBIDS DEPOSIT WITH AN EXPRESS
COMPANY, FOR INTERSTATE CARRIAGE, OF "ANY OBSCENE, LEWD, OR LASCIVIOUS,
OR ANY FILTHY BOOK, PAMPHLET, PICTURE, MOTION-PICTURE FILM, PAPER,
LETTER, WRITING, PRINT, OR OTHER MATTER OF INDECENT CHARACTER  ...  "
18 U.S.C. SEC. 396(1946 ED.), NOW SEC. 1462(1948 REV.).  THE CRIME WITH
WHICH RESPONDENT WAS CHARGED INVOLVED PHONOGRAPH RECORDS, WHICH DO NOT
COME UNDER ANY SPECIFIC CATEGORY LISTED IN THE STATUTE.  CONSEQUENTLY
THE INFORMATION AGAINST RESPONDENT COULD ONLY CHARGE VIOLATION OF THE
PROVISION'S GENERAL LANGUAGE BARRING SHIPMENT OF "OTHER MATTER OF
INDECENT CHARACTER."  THE COURT SUSTAINS THE CONVICTION HERE BY
REASONING THAT A PHONOGRAPH RECORD IS "MATTER" WITHIN THE MEANING OF
THIS CONGRESSIONAL PROHIBITION. 

OUR SYSTEM OF JUSTICE IS BASED ON THE PRINCIPLE THAT CRIMINAL
STATUTES SHALL BE COUCHED IN LANGUAGE SUFFICIENTLY CLEAR TO APPRISE
PEOPLE OF THE PRECISE CONDUCT THAT IS PROHIBITED.  JUDICIAL
INTERPRETATION DEVIATES FROM THIS SALUTARY PRINCIPLE WHEN STATUTORY
LANGUAGE IS EXPANDED TO INCLUDE CONDUCT THAT CONGRESS MIGHT HAVE
BARRED, BUT DID NOT, BY THE LANGUAGE IT USED.  FN1 COMPARE UNITED
STATES V. WEITZEL, 246 U.S. 533, 543, WITH UNITED STATES V. SULLIVAN,
332 U.S. 689, 693-694. 

THE RELUCTANCE OF COURTS TO EXPAND THE COVERAGE OF CRIMINAL STATUTES
IS PARTICULARLY IMPORTANT WHERE, AS HERE, THE STATUTE RESULTS IN
CENSORSHIP.  ACCORDING TO DICTIONARY DEFINITIONS, "MATTER" UNDENIABLY
INCLUDES PHONOGRAPH RECORDS AND THE SUBSTANCES OF WHICH THEY ARE MADE. 
INDEED, DICTIONARIES TELL US THAT "MATTER" ENCOMPASSES ALL TANGIBLES
AND MANY INTANGIBLES, INCLUDING MATERIAL TREATED OR TO BE TREATED IN A
BOOK, SPEECH, LEGAL ACTION OR THE LIKE; MATTER FOR DISCUSSION,
ARGUMENT, EXPOSITION, ETC.; AND MATERIAL TREATED IN THE MEDIEVAL
METRICAL ROMANCES.  THE MANY MEANINGS OF "MATTER" ARE WARNING SIGNALS
AGAINST GIVING THE WORD THE BROAD CONSTRUCTION ADOPTED BY THE COURT. 

HISTORY IS NOT LACKING IN PROOF THAT STATUTES LIKE THIS MAY READILY
BE CONVERTED INTO INSTRUMENTS FOR DANGEROUS ABRIDGMENTS OF FREEDOM OF
EXPRESSION.  PEOPLE OF VARIED TEMPERAMENTS AND BELIEFS HAVE ALWAYS
DIFFERED AMONG THEMSELVES CONCERNING WHAT IS "INDECENT."  SCULPTURE,
PAINTINGS AND LITERATURE, RANKED AMONG THE CLASSICS BY SOME, DEEPLY
OFFEND THE RELIGIOUS AND MORAL SENSIBILITIES OF OTHERS.  FN2  AND THOSE
WHICH OFFEND, HOWEVER PRICELESS OR IRREPLACEABLE, HAVE OFTEN BEEN
DESTROYED BY HONEST ZEALOTS CONVINCED THAT SUCH DESTRUCTION WAS
NECESSARY TO PRESERVE MORALITY AS THEY SAW IT. 

OF COURSE THERE IS A TREMENDOUS DIFFERENCE BETWEEN CULTURAL TREASURES
AND THE PHONOGRAPH RECORDS HERE INVOLVED.  BUT OUR DECISION CANNOT BE
BASED ON THAT DIFFERENCE.  INVOLVED IN THIS CASE IS THE VITAL QUESTION
OF WHETHER COURTS SHOULD GIVE THE MOST EXPANSIVE CONSTRUCTION TO
GENERAL TERMS IN LEGISLATION PROVIDING FOR CENSORSHIP OF PUBLICATIONS
OR PICTURES FOUND TO BE "INDECENT," "OBSCENE," ETC.  CENSORSHIP IN ANY
FIELD MAY SO READILY ENCROACH ON CONSTITUTIONALLY PROTECTED LIBERTIES
THAT COURTS SHOULD NOT ADD TO THE LIST OF ITEMS BANNED BY CONGRESS. 
FN3 

IN THE PROVISION RELIED ON, AS WELL AS ELSEWHERE IN THE ACT, CONGRESS
USED LANGUAGE CAREFULLY DESCRIBING A NUMBER OF "INDECENT" ARTICLES AND
FORBADE THEIR SHIPMENT IN INTERSTATE COMMERCE.  THIS SPECIFIC LIST
APPLIED CENSORSHIP ONLY TO ARTICLES THAT PEOPLE COULD READ OR SEE; THE
COURT NOW ADDS TO IT ARTICLES CAPABLE OF USE TO PRODUCE SOUNDS THAT
PEOPLE CAN HEAR.  FN4  THE JUDICIAL ADDITION HERE MAY ITSELF BE SMALL. 
BUT IT IS ACCOMPLISHED BY A TECHNIQUE OF BROAD INTERPRETATION WHICH TOO
OFTEN MAY BE SUCCESSFULLY INVOKED BY THE MANY PEOPLE WHO WANT THE LAW
TO PROSCRIBE WHAT OTHER PEOPLE MAY SAY, WRITE, HEAR, SEE, OR READ.  I
CANNOT AGREE TO ANY DEPARTURE FROM THE SOUND PRACTICE OF NARROWLY
CONSTRUING STATUTES WHICH BY CENSORSHIP RESTRICT LIBERTY OF
COMMUNICATION. 

SINCE CONGRESS DID NOT SPECIFICALLY BAN THE SHIPMENT OF PHONOGRAPH
RECORDS,  FN5  THIS COURT SHOULD NOT DO SO.    FN1  THE GOVERNMENT
POINTS TO THE LEGISLATIVE HISTORY OF THIS AND RELATED STATUTES AS PROOF
THAT CONGRESS INTENDED ITS LANGUAGE TO BE MOST BROADLY CONSTRUED. 
PARTICULARLY IT RELIES ON THE ARGUMENT THAT ANTHONY COMSTOCK, A
SUPPORTER AND PROMOTER OF THE FIRST FEDERAL STATUTES IN THIS FIELD, HAD
A REPUTATION FOR "THOROUGHNESS IN HIS PURSUIT OF IMMORALITY."  THIS MAY
BE CONCEDED, BUT WE CANNOT CONSTRUE THIS STATUTE ON THE THEORY THAT MR.
COMSTOCK'S ZEAL AS A REFORMER OF MORALS MUST BE CONSIDERED AS
DETERMINATIVE LEGISLATIVE HISTORY.  THAT ZEAL WAS UNDOUBTEDLY GREAT, SO
GREAT THAT IF ACCEPTED AS A CRITERION OF CONSTRUCTION THE COURT COULD
EXPAND THE PUNISHMENT ALONG WITH THE COVERAGE OF THE ACT. 

FN2  SEE HANNEGAN V. ESQUIRE, INC., 327 U.S. 146, 157-158; BLEISTEIN
V. DONALDSON LITHOGRAPHING CO., 188 U.S. 239, 251-252. 

FN3  SEE DISCUSSION IN 1 CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS
200-366. 

FN4  IN A SECOND PROVISION OF THE ACT, CONGRESS BARRED SHIPMENT OF
"ANY DRUG, MEDICINE, ARTICLE, OR THING DESIGNED, ADAPTED, OR INTENDED
FOR PREVENTING CONCEPTION, OR PRODUCING ABORTION, OR FOR ANY INDECENT
OR IMMORAL USE  ...  "  THIS PROVISION, UNLIKE THE FIRST PROVISION
RELATING TO PICTURES AND WRITTEN OR PRINTED MATTER, REQUIRES PROOF THAT
THE OBJECT SHIPPED WAS DESIGNED, ADAPTED OR INTENDED FOR INDECENT OR
IMMORAL USE. 

A NEW YORK STATUTE CONTAINS TWO PROVISIONS CLOSELY RESEMBLING THESE
TWO PROVISIONS IN THE FEDERAL STATUTE.  NEW YORK PENAL LAW, SEC. 1141. 
THE NEW YORK COURT OF APPEALS REFUSED TO SUSTAIN A CONVICTION FOR
SELLING PHONOGRAPH RECORDS BASED ON AN INFORMATION CHARGING VIOLATION
OF THE FIRST PROVISION OF THE STATE ACT, WHICH WAS SUBSTANTIALLY
EQUIVALENT TO THE FEDERAL PROVISION HERE INVOLVED EXCEPT THAT THE WORD
"MATTER" WAS MODIFIED BY THE PHRASE "WRITTEN OR PRINTED."  THE STATE
COURT DID NOT FIND IT NECESSARY TO DETERMINE WHETHER A PROSECUTION
COULD HAVE BEEN BASED ON THE SECOND PROVISION, WHICH COVERS "ANY
ARTICLE OR INSTRUMENT OF INDECENT OR IMMORAL USE."  NEW YORK V.
STRASSNER, 299 N.Y. 325, 87 N.E.2D 280. 

FN5  SINCE THE DECISION BELOW, A BILL HAS BEEN INTRODUCED IN THE
HOUSE OF REPRESENTATIVES AT THE REQUEST OF THE DEPARTMENT OF JUSTICE TO
AMEND THE STATUTE SO AS TO PROHIBIT THE TRANSPORTATION OF OBSCENE
PHONOGRAPH RECORDS IN INTERSTATE COMMERCE.  H.R. 6622, 81ST CONG., 2D
SESS.  IN REQUESTING THIS AMENDMENT, THE ASSISTANT TO THE ATTORNEY
GENERAL STATED THAT WHETHER OR NOT THE PRESENT STATUTE APPLIED TO
PHONOGRAPH RECORDS WAS "QUESTIONABLE," PARTICULARLY IN THE LIGHT OF THE
DECISION BELOW.  RECALLING THE 1920 AMENDMENT TO BRING MOTION-PICTURE
FILM WITHIN THE COVERAGE OF THE STATUTE, HE URGED THAT "APPARENTLY, THE
TIME HAS NOW ARRIVED FOR A FURTHER AMENDMENT TO BRING OBSCENE
PHONOGRAPH RECORDS CLEARLY WITHIN THE SCOPE OF THE PRESENT SECTION." 
THIS PROPOSED BILL IS STILL PENDING IN THE HOUSE COMMITTEE ON THE
JUDICIARY. 
..END :






















U.S. V. PACIFIC COAST WHOLESALERS, 338 U.S. 689 


ARGUED JANUARY 10, 1950.  - DECIDED FEBRUARY 6, 1950.  - 81 F.SUPP. 
991, AFFIRMED. 


AN ASSOCIATION OF WHOLESALE AUTOMOBILE PARTS DEALERS ORGANIZED AND
OPERATED IN GOOD FAITH, ON A NONPROFIT BASIS, FOR THE PURPOSE OF
EFFECTING SAVINGS IN FREIGHT CHARGES FOR ITS MEMBERS BY SECURING THE
BENEFITS OF CARLOAD, TRUCKLOAD, OR OTHER VOLUME RATES, HELD EXEMPT
UNDER SEC. 402(C)(1) OF THE INTERSTATE COMMERCE ACT FROM REGULATION BY
THE INTERSTATE COMMERCE COMMISSION AS A FREIGHT FORWARDER.  PP. 690
691. 

(A)  THE BASIS OF THE SHIPMENTS - WHETHER F.O.B. DESTINATION (OR
DELIVERED PRICE) OR F.O.B. ORIGIN - IS NOT DETERMINATIVE.  P. 691. 

UNITED STATES ET AL. V. PACIFIC COAST WHOLESALERS' ASSOCIATION ET AL. 

NO. 113.  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA* . 

*TOGETHER WITH NO. 114, FREIGHT FORWARDERS INSTITUTE V. PACIFIC COAST
WHOLESALERS' ASSOCIATION ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

A THREE-JUDGE DISTRICT COURT SET ASIDE AND ENJOINED ENFORCEMENT OF AN
ORDER OF THE INTERSTATE COMMERCE COMMISSION REQUIRING THE APPELLEE IN
NO. 113 TO DISCONTINUE OPERATIONS AS A FREIGHT FORWARDER WITHOUT A
PERMIT FROM THE COMMISSION.  81 F.SUPP.  991.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 691. 

PER CURIAM. 

THE APPELLEE, PACIFIC COAST WHOLESALERS' ASSOCIATION, WAS FORMED BY
SEVEN LOS ANGELES AUTO PARTS DEALERS IN 1935; INCORPORATED UNDER
CALIFORNIA LAW AS A NONPROFIT CORPORATION IN 1943; AND HAD FORTY-ONE
MEMBERS AND ISSUED FREIGHT BILLS EXCEEDING ONE MILLION DOLLARS IN
ANNUAL VALUE IN 1945.  THE ISSUE PRESENTED IS WHETHER THIS ASSOCIATION,
WITH RESPECT TO THE SHIPMENTS HERE INVOLVED, IS SUBJECT TO REGULATION
BY THE INTERSTATE COMMERCE COMMISSION AS A FREIGHT FORWARDER OR STANDS
IN EXEMPT STATUS UNDER SEC. 402(C)(1) OF THE INTERSTATE COMMERCE ACT. 
THIS SECTION READS AS FOLLOWS: 

"THE PROVISIONS OF THIS PART SHALL NOT BE CONSTRUED TO APPLY (1) TO
THE OPERATIONS OF A SHIPPER, OR A GROUP OR ASSOCIATION OF SHIPPERS, IN
CONSOLIDATING OR DISTRIBUTING FREIGHT FOR THEMSELVES OR FOR THE MEMBERS
THEREOF, ON A NONPROFIT BASIS, FOR THE PURPOSE OF SECURING THE BENEFITS
OF CARLOAD, TRUCKLOAD, OR OTHER VOLUME RATES,  ...  "  FN1 

THE INTERSTATE COMMERCE COMMISSION, IN 1945, CONSIDERED THE STATUS OF
THE APPELLEE IN ITS FIRST DECISION IN THIS MATTER.  AT THAT TIME, IT
CONCLUDED THAT "IT HAS BEEN ESTABLISHED IN THIS PROCEEDING THAT THE
TRAFFIC HANDLED IS FOR MEMBERS OF THE ASSOCIATION, THAT THE ASSOCIATION
WAS FOUNDED AND HAS BEEN OPERATED, IN GOOD FAITH, FOR THE PURPOSE OF
EFFECTING SAVINGS IN FREIGHT CHARGES FOR ITS MEMBERS BY SECURING THE
BENEFITS OF CARLOAD, TRUCKLOAD, OR OTHER VOLUME RATES, AND THAT THE
ASSOCIATION IS OPERATED ON A NONPROFIT BASIS.  THESE ARE OPERATIONS OF
THE CHARACTER CONTEMPLATED BY THE EXEMPTION REFERRED TO, AND MAY BE
CONTINUED WITHOUT OBTAINING AUTHORITY THEREFOR FROM THIS COMMISSION." 
264 I.C.C. 134, 142. 

IN 1947, THE COMMISSION REVERSED ITS POSITION AS IT APPLIED TO
SHIPMENTS ON AN F.O.B. DESTINATION OR DELIVERED PRICE BASIS.  269
I.C.C. 504.  IT LEFT STANDING THE EXEMPTION OF THE ASSOCIATION FROM
REGULATION BY THE COMMISSION IN RESPECT OF SHIPMENTS ON AN F.O.B.
ORIGIN BASIS.  IT WAS STATED THAT THE LEGAL OBLIGATION TO PAY THE
FREIGHT CHARGES RESTED ON THE NONMEMBER CONSIGNOR, WHO PAID THE FULL
LESS-THAN-CARLOAD RATE, RATHER THAN ON THE CONSIGNEE ASSOCIATION
MEMBER.  IT WAS THEREFORE HELD THAT THE DIFFERENCE BETWEEN THE RATE
PAID BY THE NONMEMBER AND THE CARLOAD TRANSPORTATION COST WAS PROFIT TO
THE ASSOCIATION, AND THAT THE ASSOCIATION WAS HOLDING OUT ITS SERVICE
TO THE GENERAL PUBLIC.  IN THIS VIEW, THE COMMISSION CONCLUDED THAT
APPELLEE WAS NOT QUALIFIED FOR THE EXEMPT STATUS ON F.O.B. DESTINATION
OR DELIVERED PRICE SHIPMENTS. 

A DECREE OF THE THREE-JUDGE DISTRICT COURT SET ASIDE THE COMMISSION'S
ORDER AS WITHOUT RATIONAL BASIS.  81 F.SUPP.  991.  THE COURT
CONSIDERED AS DECISIVE THAT NO SHIPMENTS BY THE ASSOCIATION WERE EVER
UNDERTAKEN EXCEPT AT THE BEHEST AND FOR THE BENEFIT OF A MEMBER. 
LOOKING TO THE AGENCY BETWEEN MEMBER AND ASSOCIATION, RATHER THAN THAT
BETWEEN BUYER AND SELLER, THE COURT SAW NO REASONABLE GROUND FOR RULING
THAT THE ASSOCIATION WAS ON A PROFIT BASIS, OR THAT IT WAS HOLDING ITS
SERVICE OUT TO THE GENERAL PUBLIC.  WE AGREE. 

THERE IS NOTHING IN THE LANGUAGE OF THE ACT OR THE LEGISLATIVE
HISTORY TO SUGGEST THAT CONGRESS INTENDED THE EXEMPTION TO TURN ON THE
TYPE OF SHIPMENT WHICH WAS INVOLVED, WHETHER F.O.B. ORIGIN OR F.O.B.
DESTINATION (DELIVERED PRICE).  ON THE CONTRARY, IT IS CLEAR THAT THE
NATURE OF THE RELATIONSHIP BETWEEN THE MEMBERS AND THE GROUP WAS
THOUGHT TO BE DETERMINATIVE.  UNDER THAT TEST, THE VALID CLAIM OF THE
ASSOCIATION TO THE STATUTORY EXEMPTION IS ESTABLISHED BY THE ORIGINAL
COMMISSION DECISION.  THE JUDGMENT BELOW IS AFFIRMED. 

FN1  56 STAT. 285, 49 U.S.C. SEC. 1002(C)(1). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















DICKINSON V. PETROLEUM CORP., 338 U.S. 507 


NO. 150.  ARGUED DECEMBER 5, 1949.  - DECIDED JANUARY 16, 1950.  - 173
F.2D 738, REVERSED. 


1.  IN APRIL 1947 THE DISTRICT COURT, AFTER HEARING, ENTERED A DECREE
IN A CIVIL PROCEEDING IN WHICH THE RESPONDENT CORPORATION AND OTHERS
HAD BEEN ALLOWED TO INTERVENE.  THE DECREE GRANTED PART OF THE RELIEF
PRAYED BY THE CORPORATION BUT DISMISSED ITS OTHER CLAIMS.  THE COURT
RESERVED JURISDICTION AS TO MATTERS WHICH WERE OF CONCERN TO OTHER
INTERVENORS BUT WHICH COULD NOT POSSIBLY AFFECT THE CORPORATION.  IN
AUGUST 1948 A "FINAL DECREE" WAS ENTERED, WHICH DID NOT IN ANY WAY
CHANGE THE 1947 DECREE AS TO THE CORPORATION.  HELD:  AS TO THE
CORPORATION, THE 1947 DECREE WAS AN APPEALABLE FINAL DECREE; ITS
FAILURE TO APPEAL THEREFROM FORFEITED ITS RIGHT OF REVIEW; AND APPEAL
FROM THE 1948 DECREE WAS INEFFECTIVE AND SHOULD BE DISMISSED.  PP. 508
516. 

2.  RULE 54(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE NOT HAVING
BEEN IN EFFECT AT THE TIME OF THE 1947 DECREE, THIS COURT DOES NOT
DETERMINE ITS EFFECT ON CASES OF THIS KIND.  P. 512. 

DICKINSON V. PETROLEUM CONVERSION CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

A MOTION TO DISMISS AN APPEAL BY A CORPORATION FROM A DECREE OF THE
DISTRICT COURT, ON THE GROUND THAT AS TO THE CORPORATION AN EARLIER
DECREE WAS FINAL AND APPEALABLE, WAS DENIED BY THE COURT OF APPEALS. 
173 F.2D 738.  THIS COURT GRANTED A LIMITED CERTIORARI.  338 U.S. 811. 
REVERSED, P. 516. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE ONLY ISSUE PRESENTED BY THIS CASE TURNS ON THE FINALITY OF A
JUDGMENT FOR PURPOSES OF APPEAL, A SUBJECT ON WHICH THE VOLUME OF
JUDICIAL WRITING ALREADY IS FORMIDABLE.  THE COURT OF APPEALS RESOLVED
AGAINST FINALITY OF THE DECREE IN QUESTION, SAYING, HOWEVER, THAT IT
DID SO AGAINST THE UNANIMOUS CONVICTION OF THE COURT AS CONSTITUTED BUT
IN DEFERENCE TO A PRECEDENT ESTABLISHED BY A DIFFERENTLY CONSTITUTED
COURT OF THE SAME CIRCUIT.  173 F.2D 738.  BECAUSE OF THIS INTRACIRCUIT
CONFLICT, WE MADE A LIMITED GRANT OF CERTIORARI.  338 U.S. 811.  THAT
WE CANNOT DEVISE A FORM OF WORDS THAT WILL SETTLE THIS RECURRENT
PROBLEM SEEMS CERTAIN; BUT IN THIS CASE WE AGREE WITH THE CONVICTIONS
OF THE COURT BELOW AND REVERSE ITS JUDGMENT. 

SOMETHING OVER A DECADE AGO, DICKINSON SUED LLOYD, WITH WHOM HE HAD
BEEN ASSOCIATED IN PROMOTING THE PETROLEUM CONVERSION CORPORATION,
ALONG WITH OTHERS, TO IMPRESS AN EQUITABLE LIEN UPON CERTAIN OF THE
CORPORATION'S SHARES THEN IN LLOYD'S NAME AND POSSESSION.  THE DISTRICT
COURT DISMISSED THE COMPLAINT BUT THE COURT OF APPEALS REVERSED AND
DIRECTED A NEW TRIAL.  DICKINSON V. RINKE, 132 F.2D 805.  BEFORE
RETRIAL, BURNHAM AND VAUGHAN, ON BEHALF OF THEMSELVES AND SUCH OTHER
STOCKHOLDERS AS SUBSCRIBED TO A FUND TO AID THE COMPANY OR ITS
PREDECESSOR IN ITS EMBARRASSMENT, WERE ALLOWED TO INTERVENE.  THEY SET
UP A CLAIM AGAINST BOTH PLAINTIFF DICKINSON AND DEFENDANT LLOYD THAT
THE STOCK INVOLVED IN THE CONTROVERSY BETWEEN THEM HAD BEEN
FRAUDULENTLY ISSUED AND DEMANDED THAT THIS STOCK BE CANCELED.  THEY
ALSO SOUGHT RECOVERY OF $87,310.28 FROM THEM AS UNLAWFUL PROFITS
SECRETLY REALIZED BY BREACH OF THEIR FIDUCIARY DUTY.  PETROLEUM
CONVERSION CORPORATION ALSO INTERVENED, MAKING THE SAME GENERAL
ALLEGATIONS AND DEMANDS FOR RELIEF.  THE CORPORATION AND THE CLASS OF
SUBSCRIBERS THUS JOINED FORCES TO GET FOR ONE OR THE OTHER
SUBSTANTIALLY THE SAME REMEDY AGAINST BOTH DICKINSON AND LLOYD. 

THIS TRIANGULAR CONTROVERSY WAS TRIED AND A DECREE DATED APRIL 10,
1947, WAS ENTERED.  THE ISSUE HERE TURNS ON THE CHARACTER OF THAT
DECREE.  IT RECITES TWENTY-THREE DAYS OF TRIAL, THE FILING OF A
DECISION, OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND IT
"ORDERED, ADJUDGED AND DECREED" THAT ALL OF THE PLAINTIFF DICKINSON'S
CLAIMS BE DISMISSED ON THE MERITS; THAT ALL OF THE DEFENDANT LLOYD'S
CLAIMS THERE PRESSED BY HIS ADMINISTRATOR BE DISMISSED ON THE MERITS;
THAT THE CLASS INTERVENORS HAVE JUDGMENT OF $174,620.56 AGAINST BOTH
DICKINSON AND LLOYD'S ADMINISTRATOR, AND THAT A CONCOURSE OF ALL THESE
SUBSCRIBERS BE PROVIDED BY WHICH THEIR SEVERAL CLAIMS COULD BE
LIQUIDATED AND THE SHARE OF EACH IN THE RECOVERY FIXED; THAT PETROLEUM
CONVERSION CORPORATION RECEIVE 8,200 SHARES OF ITS STOCK IN THE HANDS
OF LLOYD'S ADMINISTRATOR BUT THAT ITS CLAIM TO 12,596 ADDITIONAL SUCH
SHARES AND ITS CLAIM TO OVER 244,000 OF ITS SHARES IN POSSESSION OF THE
COURT BE DISMISSED; AND PETROLEUM CONVERSION CORPORATION WAS DIRECTED
TO ISSUE NEW SHARES TO STOCKHOLDERS OF ANOTHER CORPORATION, PROVIDED
THAT, IF ANY SHARES WERE NOT DISTRIBUTED FOR ANY REASON, THEY BE
REDEPOSITED WITH THE COURT SUBJECT TO ITS FURTHER ORDER WITH
JURISDICTION RETAINED BY THE COURT TO SUPERVISE THE DISTRIBUTION OF
SUCH SHARES.  IT DISMISSED ALL OTHER CLAIMS OF PETROLEUM CONVERSION
CORPORATION. 

FROM THIS DECREE PETROLEUM TOOK NO APPEAL.  THE DISTRICT COURT WENT
AHEAD WITH HEARINGS TO DETERMINE CLAIMS OF OVER SEVENTY MEMBERS OF THE
CLASS TO SHARE IN THE AGGREGATE RECOVERY AGAINST DICKINSON AND LLOYD'S
ADMINISTRATOR.  ON AUGUST 3, 1948, THE COURT SIGNED A "FINAL DECREE"
WHICH APPORTIONED THE RECOVERY AS BETWEEN THOSE CLAIMANTS.  IT RECITED
THAT "THE ISSUES RESERVED IN THE DECREE HEREIN DATED THE 10TH DAY OF
APRIL, 1947, HAVING BEEN DETERMINED BY THE COURT  ...  THE SAID DECREE
IS HEREBY MADE FINAL."  IT MADE NO DECISION AS TO ANY ISSUE INVOLVING
PETROLEUM AND IN NO WAY CHANGED THE 1947 DECREE AS TO IT.  IT ALSO
AWARDED COSTS WHICH HAD NOT BEEN SETTLED IN THE EARLIER DECREE, BUT
MADE NO AWARD AGAINST PETROLEUM. 

THEREUPON PETROLEUM'S RECEIVER IN BANKRUPTCY APPEALED FROM SO MUCH OF
THIS 1948 DECREE AS DISMISSED THE CLAIMS OF PETROLEUM.  FN1  ON MOTION
TO DISMISS THE APPEAL, THE CHIEF QUESTION AND THE ONLY ONE WE GRANTED
REVIEW, WAS WHETHER THE CORPORATION COULD HAVE APPEALED FROM THE 1947
DECREE, OR WHETHER IT COULD ONLY APPEAL FROM THE 1948 DECREE.  FN2  IN
DECIDING THIS MOTION, THE COURT SAID: 

"IN THE VIEW OF ALL MEMBERS OF THE COURT, AS IT IS NOW CONSTITUTED,
THIS SHOULD MAKE NO DIFFERENCE FOR THE WHOLE COUNTERCLAIM OF THE
PETROLEUM CONVERSION CORPORATION HAD BEEN FINALLY DISPOSED OF ON APRIL
TENTH, 1947; AND AS TO IT THE ACTION WAS AT AN END AS MUCH AS THOUGH IT
HAD BEEN DENIED THE RIGHT TO INTERVENE AT ALL; INDEED, THE JUDGMENT WAS
MORE FINAL, SO TO SAY, BECAUSE, UNLIKE THE DENIAL OF A PETITION TO
INTERVENE, IT WAS A BAR TO ANY EFFORT TO RELITIGATE THE CLAIMS
DETERMINED."  173 F.2D AT 740. 

BUT BECAUSE IT COULD FIND NO BASIS FOR DISTINGUISHING CLARK V.
TAYLOR, 163 F.2D 940, IN WHICH A DIFFERENTLY COMPOSED COURT IN THE SAME
CIRCUIT HAD SUSTAINED WHAT APPEARS TO BE A CONTRARY POSITION, IT HELD
THE EARLIER ORDER NOT APPEALABLE AND HENCE NO BAR TO THE PRESENT
APPEAL.  173 F.2D AT 740-741. 

HALF A CENTURY AGO THIS COURT LAMENTED, "PROBABLY NO QUESTION OF
EQUITY PRACTICE HAS BEEN THE SUBJECT OF MORE FREQUENT DISCUSSION IN
THIS COURT THAN THE FINALITY OF DECREES.  ...  THE CASES, IT MUST BE
CONCEDED, ARE NOT ALTOGETHER HARMONIOUS."  MCGOURKEY V. TOLEDO & OHIO
CENT. R. CO., 146 U.S. 536, 544-45.  THIS LAMENTATION IS EQUALLY
FITTING TO DESCRIBE THE INTERVENING STRUGGLE OF THE COURTS; SOMETIMES
TO DEVISE A FORMULA THAT WILL ENCOMPASS ALL SITUATIONS AND AT OTHER
TIMES TO TAKE HARDSHIP CASES OUT FROM UNDER THE RIGIDITY OF PREVIOUS
DECLARATIONS; SOMETIMES CHOOSING ONE AND SOMETIMES ANOTHER OF THE
CONSIDERATIONS THAT ALWAYS COMPETE IN THE QUESTION OF APPEALABILITY,
THE MOST IMPORTANT OF WHICH ARE THE INCONVENIENCE AND COSTS OF
PIECEMEAL REVIEW ON THE ONE HAND AND THE DANGER OF DENYING JUSTICE BY
DELAY ON THE OTHER.  FN3 

THE LIBERALIZATION OF OUR PRACTICE TO ALLOW MORE ISSUES AND PARTIES
TO BE JOINED IN ONE ACTION AND TO EXPAND THE PRIVILEGE OF INTERVENTION
BY THOSE NOT ORIGINALLY PARTIES HAS INCREASED THE DANGER OF HARDSHIP
AND DENIAL OF JUSTICE THROUGH DELAY IF EACH ISSUE MUST AWAIT THE
DETERMINATION OF ALL ISSUES AS TO ALL PARTIES BEFORE A FINAL JUDGMENT
CAN BE HAD.  IN RECOGNITION OF THIS DIFFICULTY, PRESENT RULE 54(B),
FEDERAL RULES OF CIVIL PROCEDURE, WAS PROMULGATED.  IT PROVIDES: 

"WHEN MORE THAN ONE CLAIM FOR RELIEF IS PRESENTED IN AN ACTION,
WHETHER AS A CLAIM, COUNTERCLAIM, CROSS-CLAIM, OR THIRD-PARTY CLAIM,
THE COURT MAY DIRECT THE ENTRY OF A FINAL JUDGMENT UPON ONE OR MORE BUT
LESS THAN ALL OF THE CLAIMS ONLY UPON AN EXPRESS DETERMINATION THAT
THERE IS NO JUST REASON FOR DELAY AND UPON AN EXPRESS DIRECTION FOR THE
ENTRY OF JUDGMENT.  IN THE ABSENCE OF SUCH DETERMINATION AND DIRECTION,
ANY ORDER OR OTHER FORM OF DECISION, HOWEVER DESIGNATED, WHICH
ADJUDICATES LESS THAN ALL THE CLAIMS SHALL NOT TERMINATE THE ACTION AS
TO ANY OF THE CLAIMS, AND THE ORDER OR OTHER FORM OF DECISION IS
SUBJECT TO REVISION AT ANY TIME BEFORE THE ENTRY OF JUDGMENT
ADJUDICATING ALL THE CLAIMS." 

THE OBVIOUS PURPOSE OF THIS SECTION, AS INDICATED BY THE NOTES OF THE
ADVISORY COMMITTEE, IS TO REDUCE AS FAR AS POSSIBLE THE UNCERTAINTY AND
THE HAZARD ASSUMED BY A LITIGANT WHO EITHER DOES OR DOES NOT APPEAL
FROM A JUDGMENT OF THE CHARACTER WE HAVE HERE.  FN4  IT PROVIDES AN
OPPORTUNITY FOR LITIGANTS TO OBTAIN FROM THE DISTRICT COURT A CLEAR
STATEMENT OF WHAT THAT COURT IS INTENDING WITH REFERENCE TO FINALITY,
AND IF SUCH A DIRECTION IS DENIED, THE LITIGANT CAN AT LEAST PROTECT
HIMSELF ACCORDINGLY. 

BUT THIS NEW RULE - WHICH BECAME EFFECTIVE ON MARCH 19, 1948 - WAS
NOT IN EFFECT AT THE TIME OF THE 1947 DECREE IN THIS CASE AND IT WOULD
NOT BE APPROPRIATE TO ATTEMPT TO DETERMINE ITS EFFECT ON CASES OF THIS
KIND BEYOND OBSERVING THAT IT MAY DO MUCH TO PREVENT THEM FROM COMING
HERE.  WE WILL NOT, THEREFORE, TRY TO LAY DOWN RULES TO EMBRACE ANY
CASE BUT THIS. 

WE HAVE HELD THAT AN ORDER DENYING INTERVENTION TO A PERSON HAVING AN
ABSOLUTE RIGHT TO INTERVENE IS FINAL AND APPEALABLE.  BROTHERHOOD OF
RAILROAD TRAINMEN V. BALTIMORE & OHIO R. CO., 331 U.S. 519; MISSOURI
KANSAS PIPE LINE CO. V. UNITED STATES, 312 U.S. 502.  WHEN THE
APPLICATION FOR INTERVENTION IS DENIED, THE WOULD-BE INTERVENOR IS
FORECLOSED FROM FURTHER ACTION IN THE CASE AND ITS PROCEEDINGS CANNOT
AFFECT HIM NOR CAN HE AFFECT THEM.  AS THE COURT BELOW OBSERVED, IT IS
HARD TO SEE WHY THE EXCLUSION OF AN INTERVENOR FROM THE CASE SHOULD BE
LESS FINAL WHEN IT IS BASED UPON THE EVIDENCE THAN WHEN IT IS BASED
UPON PLEADINGS.  IN EITHER CASE, THE LAWSUIT IS ALL OVER SO FAR AS THE
INTERVENOR IS CONCERNED. 

WHEN ITS CLAIMS WERE DISMISSED BY THE DECREE OF APRIL 1947, ANY
GRIEVANCE THAT PETROLEUM CONVERSION CORPORATION HAD WAS FULLY MATURED. 
FN5  AT THAT POINT PETROLEUM WAS OUT OF THE CASE.  THE DECREE WAS NOT
TENTATIVE, INFORMAL NOR INCOMPLETE AS TO IT; AND THE CASE WAS CONCLUDED
AND CLOSED AS TO ITS COUNTERCLAIMS.  THE COURT'S RESERVATION OF
JURISDICTION TO SUPERVISE THE DISTRIBUTION OF THE SHARES OF STOCK AND
THE PROVISION FOR FURTHER PROCEEDINGS TO DETERMINE THE INDIVIDUAL
SHARES IN THE AGGREGATE RECOVERY ALLOWED DID NOT IN ANY MANNER AFFECT
PETROLEUM'S RIGHTS.  WHAT THE COURT RESERVED WAS ESSENTIALLY
SUPERVISORY JURISDICTION OVER THE DISTRIBUTION AMONG THE CLASS OF THE
RECOVERY AWARDED THE INTERVENORS AS THE CLASS' REPRESENTATIVES.  THE
ONLY QUESTIONS WERE, SO TO SPEAK, INTERNAL TO THE INTERVENING
INTEREST.  PETROLEUM NO LONGER HAD ANY CONCERN WITH THESE QUESTIONS
AND, HOWEVER THEY WERE RESOLVED, PETROLEUM COULD NOT POSSIBLY HAVE BEEN
AFFECTED.  THE COURT OBVIOUSLY SELECTED WITH DELIBERATION THE ISSUES IT
WOULD CLOSE BY THE DECREE AND THOSE IT WOULD RESERVE FOR FUTURE
DECISION.  IF IT HAD ANY PURPOSE TO LEAVE OPEN ANY ISSUE CONCERNING
PETROLEUM'S CONTENTIONS, OR AFFECTING ITS INTERESTS, HALF A LINE IN THE
DECREE WOULD HAVE DONE SO.  BUT THAT HALF-LINE WAS NOT WRITTEN. 

WE HOLD THE DECREE OF APRIL 10, 1947, TO HAVE BEEN A FINAL ONE AS TO
PETROLEUM  FN6  AND ONE FROM WHICH IT COULD HAVE APPEALED AND THAT ITS
FAILURE TO APPEAL THEREFROM FORFEITS ITS RIGHT OF REVIEW.  ITS ATTEMPT
TO REVIEW THE EARLIER DECREE BY APPEALING FROM THE LATER ONE IS
INEFFECTIVE, AND ITS APPEAL SHOULD BE DISMISSED.  REVERSED. 

FN1  AS WE HAVE ALREADY INDICATED, HOWEVER, THE 1948 DECREE DID NOT
DISMISS OR DECIDE ANY OF PETROLEUM'S CLAIMS EXCEPT INSOFAR AS IT MAY BE
CONSTRUED TO FINALIZE THE 1947 DECREE. 

FN2  IF THE 1947 DECREE WAS FINAL AS TO PETROLEUM FOR PURPOSES OF
APPEAL, PETROLEUM COULD NOT APPEAL FROM THE 1948 DECREE.  HILL V.
CHICAGO & EVANSTON R. CO., 140 U.S. 52. 

FN3  THE CASES AND THE POLICY CONSIDERATIONS UNDERLYING THEM ARE
COLLECTED AND DISCUSSED IN 3 MOORE'S FEDERAL PRACTICE, 1948 SUPP., 172
187; MOORE'S COMMENTARY ON THE U.S. JUDICIAL CODE, 495-501, 507
518(1949); NOTE TO RULE 54(B), ADVISORY COMMITTEE'S REPORT OF PROPOSED
AMENDMENTS TO RULES OF CIVIL PROCEDURE (1946); REFORMULATION OF THE
"FINAL DECISION" RULE - PROPOSED AMENDMENT TO RULE 54(B), 56 YALE L.J.
141; THE FINAL JUDGMENT RULE IN THE FEDERAL COURTS, 47 COL. L. REV.
239; FEDERAL RULE 54(B) AND THE FINAL JUDGMENT RULE, 47 MICH. L. REV.
233. 

FN4  NOTE TO RULE 54(B), ADVISORY COMMITTEE'S REPORT OF PROPOSED
AMENDMENT TO RULES OF CIVIL PROCEDURE (1946) 70-72.  SEE ALSO
AUTHORITIES CITED IN N. 3, SUPRA. 

FN5  WHILE IT SHOULD MAKE NO DIFFERENCE AS TO THE LAW THAT GOVERNS
FINALITY, IT IS FAIR TO THE LAW AND TO THE COURT TO DISPEL THE
IMPRESSION THAT THIS DECISION MAKES THE CREDITORS OF PETROLEUM
CONVERSION CORPORATION "VICTIMS OF THIS JUNGLE OF DOUBT," OR VICTIMS OF
ANY KIND, OR THAT THEY ARE IN THIS PREDICAMENT FROM A "FAILURE TO GUESS
RIGHT ON A LEGAL QUESTION."  THIS CALLS FOR SOME FURTHER DETAIL
IRRELEVANT TO THE ISSUE OF LAW. 

THE DECREE OF APRIL 10, 1947, AWARDS THE RECOVERY OF $176,245.24,
WITH INTEREST FROM 1926, TO THE RINKE AGENCY SUBSCRIBERS, AS THEIR
SEVERAL SHARES MIGHT BE DETERMINED.  THESE WERE THE PERSONS WHO IN 1926
PUT UP THE FUNDS, AMOUNTING TO SOME $600,000, OUT OF WHICH DICKINSON
AND LLOYD WITHDREW SECRET PROFITS IN BREACH OF THEIR FIDUCIARY DUTY TO
THOSE SUBSCRIBERS.  THE PETROLEUM CONVERSION CORPORATION HAD NOT BEEN
ORGANIZED AT THE TIME OF THIS BREACH OF FAITH AND ITS CLAIM WAS DERIVED
FROM ITS PREDECESSOR CORPORATION FOR THE FINANCIAL RELIEF OF WHICH THIS
FUND WAS SUBSCRIBED.    IT WILL THUS BE SEEN THAT PETROLEUM
CONVERSION'S CLAIMS AS TO THE EXISTENCE OF FRAUD AND SECRET ILLEGAL
PROFITS WERE NOT BASED UPON ANY DEPLETION OF ITS OWN TREASURY, BUT OF A
SEPARATE FUND SUBSCRIBED, OF WHICH IT MIGHT ULTIMATELY BE A
BENEFICIARY.  THE REPAYMENT OF THE SECRET PROFITS WAS AWARDED TO THOSE
WHO HAD PUT UP THE MONEY OF WHICH THEY HAD BEEN DEFRAUDED AND WAS NOT
AWARDED TO THE CORPORATION.  THE DECREE WHICH IT NOW WANTS TO REVIEW
WAS ENTERED ON MOTION OF PETROLEUM'S OWN ATTORNEY.  ITS INTERESTS AND
THOSE OF THE INTERVENING SUBSCRIBER CLASS WERE HANDLED BY THE SAME
ATTORNEY AT THE TRIAL.  A SINGLE BRIEF AND PROPOSED FINDINGS OF FACT
AND CONCLUSION OF LAW WERE JOINTLY SUBMITTED BY PETROLEUM AND OTHER
INTERVENORS TO THE TRIAL COURT, WHICH LEFT IT TO THE COURT, IF RECOVERY
WERE ALLOWED, WHETHER THE JUDGMENT SHOULD BE IN FAVOR OF THE
CORPORATION OR THE SUBSCRIBERS.  THE COURT DECIDED THE RECOVERY
BELONGED TO THE SUBSCRIBERS.  IT WAS DELIBERATELY DECIDED NOT TO APPEAL
THE COURT'S DISMISSAL OF PETROLEUM'S CLAIMS UNDER THESE CIRCUMSTANCES. 

THE ATTORNEY NOW SEEKING TO PROSECUTE AN APPEAL SOUGHT IN MARCH OF
1948 TO INTERVENE IN DISTRICT COURT ON BEHALF OF PREFERRED
STOCKHOLDERS.  HE ATTACKED THIS COOPERATION BETWEEN COUNSEL FOR THE TWO
INTERVENORS AND PARTICULARLY THE FAILURE OF COUNSEL TO APPEAL THE APRIL
10, 1947 DECREE.  AS TO THIS CHARGE, THE TRIAL JUDGE SAID:  "IN SO FAR
AS THEIR PETITION FOR LEAVE TO INTERVENE IS BASED ON THE CHARGE THAT
THE CORPORATION'S (PETROLEUM CONVERSION CORPORATION) RIGHTS IN RESPECT
TO THE $176,000 CLAIM HAVE NOT BEEN FULLY AND HONESTLY PRESENTED, THE
HISTORY OF THIS LITIGATION, AS SET FORTH IN THE COURT'S OPINION OF
OCTOBER, 1946, AND THE TRIAL RECORD SHOW THAT ANY SUCH CHARGE IS
BASELESS."  IT WAS IN THAT CONNECTION THAT THE TRIAL COURT SUGGESTED
THAT "IN MY OPINION IT WAS NOT A FINAL DECREE AND WAS NOT APPEALABLE,
AT LEAST IN SO FAR AS IT INVOLVED THE CLAIM FOR $176,000."  BUT THE
TIME TO APPEAL WAS THEN LONG PAST AND FAILURE TO APPEAL WAS NOT
INFLUENCED BY THIS STATEMENT, NOR, SO FAR AS APPEARS, BY ANY
BEWILDERMENT AS TO THE FINALITY OF THE DECREE.  NO APPEAL WAS
PROSECUTED BECAUSE COUNSEL WHO HAD FOUGHT AND WON THE PRINCIPAL ISSUES
IN THE CASE THOUGHT JUSTICE HAD BEEN DONE BY THE DECREE AS IT STOOD. 

AFTER THE FINAL DECREE, COUNSEL, HAVING BEEN THUS CRITICIZED, FILED
ON SEPTEMBER 1, 1948, A NOTICE OF APPEAL FROM THE FINAL DECREE.  THIS
WAS ON BEHALF OF THE TRUSTEE FOR PETROLEUM, WHICH MEANWHILE WAS
ADJUDGED BANKRUPT. 

BUT THE TRUSTEE AT ONCE LAID THE INADVISABILITY OF THE APPEAL BEFORE
THE BANKRUPTCY COURT.  HE ADVISED THE COURT THAT "THE TRUSTEE IS
SATISFIED FROM HIS INVESTIGATION THAT JUDGE LEIBELL HAD SUFFICIENT
EVIDENCE AND SUPPORTING AUTHORITIES FOR FINDING AS HE DID AND BELIEVES
THAT AN APPEAL TO THE COURT OF APPEALS WOULD PROBABLY BE FRUITLESS." 
HE POINTED OUT THAT THE ATTORNEY WHO NOW PROPOSES TO PROSECUTE THE
APPEAL HAD OBJECTED TO ITS ABANDONMENT, BUT REPORTED THAT "THE TRUSTEE
ACCORDINGLY PROPOSES NOT TO PROSECUTE SAID APPEAL AND PETITIONS THE
APPROVAL OF THIS COURT."  NOTICE WAS GIVEN TO ALL CREDITORS OF THE
CORPORATION AND, "NO CREDITORS HAVING OBJECTED TO THE RECOMMENDATIONS
OF THE TRUSTEE," IT WAS APPROVED.  IT WAS PROVIDED, HOWEVER, THAT, IF
ANY CREDITOR DESIRED TO PROSECUTE THE APPEAL, WITHOUT LIABILITY UPON
THE BANKRUPT'S ESTATE FOR COSTS OR EXPENSES UNLESS THE APPEAL WAS
SUCCESSFUL, HE MIGHT DO SO UNDER SEC. 64(A)(1) OF THE BANKRUPTCY ACT. 
60 STAT. 330, 11 U.S.C. SEC. 104(A)(1). 

THEREAFTER, PERMISSION SO TO PROSECUTE THIS APPEAL WAS GRANTED. 
COUNSEL HAS ALSO MOVED TO AMEND BOTH THE NOTICE OF APPEAL AND THE
PLEADINGS, WITHOUT WHICH HE CLAIMS THE APPEAL MIGHT BE IRREPARABLY
PREJUDICED.  WHAT NEW ISSUES HE WOULD RAISE WE CANNOT LEARN FROM THE
RECORD BEFORE US. 

SOME OF US ARE UNABLE TO SEE THAT THIS CASE EXEMPLIFIES ANY SUCH
INJUSTICE IN THE RULE OF FINALITY THAT THE PRACTICE SHOULD BE REMOLDED
TO ALLOW AN APPEAL FROM EITHER DECREE IN ORDER TO SAVE THIS APPELLANT. 

THE JUDGMENT REQUIRED REPAYMENT OF MONEY TO SEVENTY AND MORE
CLAIMANTS WHO WERE DEFRAUDED OF IT IN 1926.  THE PURPOSE OF THE
APPELLANT IS TO DIVERT THIS SAME MONEY RECOVERY THROUGH THE TRUSTEESHIP
OF A BANKRUPT CORPORATION, WHERE IT WOULD BE SUBJECT TO RENEWED
LITIGATION AS TO HOW IT SHALL BE DISTRIBUTED AND TO MULTIPLE FEES.  IF
THE RULE OF FINALITY WE APPLY MEANS THAT AMENDS FOR A 1926 FRAUD SHALL
BE CONCLUDED AS EARLY AS 1950, WE DO NOT THINK THAT CONDEMNS THE RULE
AS UNJUST. 

FN6  THE PARTIES HAVE NOT TENDERED TO THIS COURT, AND WE DID NOT TAKE
BY CERTIORARI, ANY ISSUE AS TO ANY APPEAL BY DICKINSON.  WHAT ITS FATE
WILL BE IF SUCH AN APPEAL IS PENDING WE DO NOT KNOW AND THE RECORD IS
NOT COMPILED TO INFORM US OF ITS MERITS.  DICKINSON, WE ONLY KNOW, WAS
A PARTY TO THE ORIGINAL ACTION; NOT AS PETROLEUM, AN INTERVENOR.  THE
LAST DECREE OF THE COURT, WE KNOW TOO, AWARDED COSTS AGAINST HIM WHICH
THE FORMER DECREE DID NOT.  AND IT AWARDED AGAINST HIM MONEY JUDGMENTS
FOR SPECIFIC AMOUNTS IN FAVOR OF PARTICULAR CLAIMANTS, WHEREAS THE
EARLIER DECREE ADJUDGED ONLY A GENERAL LIABILITY TO A CLASS.  THE COURT
OF APPEALS WILL BE ABLE TO DEAL WITH ANY CONTENTIONS THAT THE DICKINSON
APPEAL SHOULD BE DISMISSED, AND UNTIL IT HAS ACTED, WE DRAW NO
INFERENCES FROM OBVIOUSLY INCOMPLETE INFORMATION ON UNLITIGATED
ISSUES. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

THE RIGHT TO APPEAL A JUDGMENT HAS LONG BEEN SAID TO DEPEND ON
WHETHER IT IS "FINAL."  THIS IS A SIMPLE QUESTION WHERE A COURT DECIDES
ALL ISSUES SIMULTANEOUSLY AND ENTERS A FINAL ORDER PUTTING AN END TO A
CONTROVERSY.  BUT WHEN AN ORDER APPARENTLY LEAVES SOME QUESTION OR
CLAIMS OPEN FOR FURTHER COURT ACTION AT A LATER DATE, DOUBTS AS TO
FINALITY ARISE.  SEE, E.G., HOHORST V. HAMBURG-AMERICAN PACKET CO., 148
U.S. 262.  FINALITY AND APPEALABILITY HAVE PROVIDED JUDGES, LAWYERS,
AND COMMENTATORS WITH A PERPETUAL SUBJECT FOR DEBATE.  FN1  BUT
LITIGANTS HAVE TOO OFTEN BEEN THROWN OUT OF COURT BECAUSE THEIR LAWYERS
FAILED TO GUESS THAT AN ORDER WOULD BE HELD "FINAL" BY AN APPELLATE
COURT.  THE CREDITORS OF PETROLEUM CONVERSION CORPORATION, WHO ARE
PROSECUTING THIS ACTION FOR RESPONDENT HERE, ARE NOT THE FIRST VICTIMS
OF THIS JUNGLE OF DOUBT.  FN2  I ALSO DOUBT THAT THEY WILL BE THE LAST
VICTIMS, DESPITE THE COURT'S HOPE THAT THE NEW RULE 54(B) HAS CHARTED A
CLEAR ROUTE THROUGH THE JUNGLE. 

I SEE NO PRACTICAL REASON WHY THE COURT OF APPEALS SHOULD NOT HAVE
BEEN FREE TO REVIEW THE RESPONDENT'S CHALLENGE TO THE 1948 DECREE
WITHOUT REGARD TO APPEALABILITY OF THE 1947 DECREE.  A RATIONAL SYSTEM
OF JURISPRUDENCE SHOULD NOT ATTACH INEXORABLE CONSEQUENCES TO FAILURE
TO GUESS RIGHT ON A LEGAL QUESTION FOR THE SOLUTION OF WHICH NEITHER
STATUTES NOR COURT OPINIONS HAVE PROVIDED EVEN A REASONABLY CERTAIN
GUIDE.  WHERE, AS HERE, ARGUMENTS AS TO WHICH OF TWO DECREES IS "FINAL"
MAY BE CONSIDERED RELATIVELY EVEN, AN APPELLATE COURT SHOULD BE FREE TO
FIND "FINALITY" IN EITHER DECREE APPEALED FROM.  UNDER SUCH A RULE A
COURT COULD CONSIDER THE MANY CIRCUMSTANCES RELEVANT TO ORDERLY
APPELLATE ADMINISTRATION WITHOUT PENALIZING LITIGANTS MERELY BECAUSE IT
FINDS THAT AN EARLIER DECREE FALLS ON THE "FINALITY" SIDE OF WHAT
REMAINS A TWILIGHT ZONE.  CF. DAVIS V. DEPARTMENT OF LABOR, 317 U.S.
249.  SEE ALSO DISSENT IN MORGANTOWN V. ROYAL INS. CO., 337 U.S. 254,
263-264. 

EVEN IF THE OLD "EITHER-OR" RULE IS APPLIED AS TO APPEALABILITY OF
THE 1947 AND 1948 DECREES HERE, IT SEEMS TO ME THAT WEIGHTIER REASONS
SUPPORT HOLDING THE LATTER FINAL.  THE JUDGE WHO TRIED THE CASE AND
RENDERED BOTH DECREES ATTRIBUTED FINALITY TO THE DECREE OF 1948 AND NOT
TO THAT OF 1947.  HE TERMED THE 1947 ORDER A "DECREE," THE 1948 ORDER A
"FINAL DECREE."  HE SPECIFICALLY PROVIDED IN THE 1947 DECREE "THAT THE
TAXATION OF COSTS IN THIS CASE AND THE ENTRY OF JUDGMENT THEREFOR, BE
DEFERRED UNTIL THE ENTRY OF JUDGMENT IN RESPECT TO THE MATTERS
HEREINABOVE RESERVED FOR THE FUTURE DETERMINATION OF THIS COURT."  AT
HIS ORDER, BOTH PETROLEUM AND DICKINSON RECEIVED NOTICE OF SUBSEQUENT
HEARINGS.  FOUR MONTHS BEFORE THE FINAL 1948 DECREE THE TRIAL JUDGE IN
A MEMORANDUM OPINION REFERRED TO THE 1947 DECREE AS "INTERLOCUTORY." 
ANSWERING CONTENTIONS THAT RESPONDENT HERE SHOULD HAVE APPEALED FROM
THE 1947 DECREE, HE STATED:  "IN MY OPINION IT WAS NOT A FINAL DECREE
AND WAS NOT APPEALABLE, AT LEAST IN SO FAR AS IT INVOLVED THE CLAIM FOR
$176,000."  AND IN THE 1948 DECREE THE TRIAL JUDGE FOR THE FIRST TIME
DECLARED THAT THE 1947 DECREE "IS HEREBY MADE FINAL."  FN3  THE
CREDITORS PROSECUTING THIS APPEAL FOR RESPONDENT SHOULD NOT BE DEPRIVED
OF AN OPPORTUNITY TO APPEAL FROM THE 1948 DECREE JUST BECAUSE ATTORNEYS
FOR THE CORPORATION FAILED TO APPEAL FROM A FORMER DECREE WHICH THE
TRIAL JUDGE HIMSELF SEEMS TO HAVE CONSIDERED INTERLOCUTORY AND
NONAPPEALABLE.  FN4 

THE HOLDING THAT PETROLEUM'S APPEAL FROM THE 1948 JUDGMENT MUST BE
DISMISSED MAY WELL PRODUCE A STRANGE CONSEQUENCE.  THE REASON FOR
DISMISSAL URGED HERE BY PETITIONER DICKINSON IS THAT THE 1947 DECREE
WAS FINAL; UNDER HIS CONTENTION, THAT DECREE LEFT NOTHING FOR THE TRIAL
COURT TO DO EXCEPT DETERMINE THE SHARES OF VARIOUS "RINKE SUBSCRIBERS"
IN "THE PARTICULAR SUM" FOUND DUE TO THAT CLASS FROM LLOYD AND
DICKINSON, AND TO ASSESS COSTS AND ENTER JUDGMENT.  ON THIS HYPOTHESIS
THE 1947 DECREE SEEMS JUST AS FINAL ON DICKINSON'S CLAIMS AND LIABILITY
AS ON PETROLEUM'S.  THE 1947 LITIGATION ORIGINATED IN CHARGES OF FRAUD
MADE BY DICKINSON AGAINST LLOYD.  PETROLEUM AND PERSONS DESIGNATED AS
"RINKE SUBSCRIBERS" THEN INTERVENED, CHARGING FRAUD AGAINST BOTH
DICKINSON AND LLOYD.  THE 1947 DECREE RESTED ON FINDINGS THAT THE
CHARGES AGAINST DICKINSON AND LLOYD HAD BEEN PROVEN.  THE COURT
CONCLUDED THAT THE RINKE SUBSCRIBERS, AND TO SOME EXTENT PETROLEUM, HAD
BEEN DAMAGED BY THEIR FRAUD.  ACCORDINGLY THE COURT AWARDED PARTIAL
RELIEF TO PETROLEUM ON ONE OF ITS CLAIMS, DISMISSING ALL ITS OTHER
CLAIMS.  THE COURT ALSO FIXED A PARTICULAR AMOUNT FOR THE RINKE
SUBSCRIBERS AS A GROUP TO RECOVER FROM DICKINSON AND THE LLOYD ESTATE. 
THAT DECREE, HERE HELD FINAL AS TO PETROLEUM, APPARENTLY HAD AN
IDENTICAL DEGREE OF FINALITY AS TO DICKINSON:  IN ADDITION TO FIXING
THE PRECISE SUM FOR WHICH DICKINSON AND LLOYD WERE LIABLE TO RINKE
SUBSCRIBERS AS A GROUP, IT COMPLETELY DISMISSED DICKINSON'S AFFIRMATIVE
CLAIMS.  FN5  YET DICKINSON HIMSELF HAS APPEALED FROM THE 1948 DECREE,
FN6  AND IRONICALLY ENOUGH HE IS THE ONLY PARTY HERE URGING DISMISSAL
OF PETROLEUM'S APPEAL FROM THE SAME DECREE. 

SO FAR AS WE KNOW, DICKINSON'S APPEAL IS STILL PENDING.  WITH
PETROLEUM OUT OF THE CASE BY THIS COURT'S JUDGMENT, HE SHOULD CERTAINLY
NOT BE LEFT FREE TO HAVE HIS OWN APPEAL CONSIDERED IN THE COURT OF
APPEALS.  PERMITTING HIM TO CHALLENGE THE 1947 FINDINGS WOULD RESULT IN
APPELLATE REVIEW OF THAT DECREE WITHOUT THE PRESENCE OF PETROLEUM, WHO
WAS ONE OF DICKINSON'S 1947 ADVERSARIES.  IF DICKINSON CAN CHALLENGE
THE 1947 DECREE BY APPEAL FROM THE 1948 JUDGMENT, PETROLEUM SHOULD ALSO
BE ALLOWED TO CHALLENGE IT.  AND IF NEITHER CAN CHALLENGE IT, THE BASIC
QUESTIONS OF FRAUD AND LIABILITY ARE NOW BEYOND THE REACH OF APPELLATE
REVIEW.  I CANNOT JOIN THE COURT IN APPLYING A RULE OF "FINALITY" WHICH
ATTACHES SUCH CONSEQUENCES TO THE UNDERSTANDABLE FAILURE OF THESE
PARTIES TO APPEAL FROM THE 1947 DECREE. 

FN1  SEE, E.G., JUDGE FRANK, DISSENTING IN CLARK V. TAYLOR, 163 F.2D
940, 944-953.  SEE ALSO CRICK, THE FINAL JUDGMENT AS A BASIS FOR
APPEAL, 41 YALE L.J. 539; NOTE, FINALITY OF JUDGMENTS IN APPEALS FROM
FEDERAL DISTRICT COURTS, 49 YALE L.J. 1476. 

FN2  THE CORPORATION WAS ADJUDICATED BANKRUPT IN AUGUST 1948.  ON
SEPTEMBER 1, 1948, THE TEMPORARY RECEIVER (LATER APPOINTED TRUSTEE)
FILED AN APPEAL FROM THE 1948 DECREE.  SUBSEQUENTLY HE REFUSED TO
PROSECUTE THE APPEAL, BUT THE BANKRUPTCY COURT ACCEPTED HIS
RECOMMENDATION THAT CREDITORS BE ALLOWED TO DO SO WITHOUT EXPENSE TO
THE ESTATE.  BY TODAY'S DECISION THE CREDITORS OF THE BANKRUPT
CORPORATION, WHO WERE NOT REPRESENTED IN THE TRIAL BELOW, ARE DEPRIVED
OF THEIR ONLY OPPORTUNITY TO APPEAL. 

FN3  PARAGRAPH 3 OF THE 1948 DECREE READS: 

"THAT THE ISSUES RESERVED IN THE DECREE HEREIN DATED THE 10TH DAY OF
APRIL, 1947, HAVING BEEN DETERMINED BY THE COURT IN ITS DECISION AND
OPINION AND ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW FILED HEREIN
DATED THE 24TH DAY OF JULY, 1948, THE SAID DECREE IS HEREBY MADE
FINAL." 

FN4  THE CREDITORS HAVE CONTENDED THAT THE INTERESTS OF THE
CORPORATION WERE NOT ADEQUATELY REPRESENTED AT THE TRIAL BECAUSE THE
CORPORATION ATTORNEY REGARDED IT AS IMMATERIAL WHETHER THE CORPORATION
OR RINKE SUBSCRIBERS OBTAINED THE RECOVERY. 

FN5  THE POSSIBLE DISTINCTIONS BETWEEN FINALITY AS TO DICKINSON AND
AS TO PETROLEUM, LISTED BY THE COURT IN FOOTNOTE 6 OF ITS OPINION, SEEM
UNSUBSTANTIAL.  THAT PETROLEUM ENTERED THE CASES AS AN INTERVENOR IS
IMMATERIAL; HAVING LITIGATED ITS CLAIMS AND BEING BOUND BY THE
JUDGMENT, IT IS JUST AS MUCH A PARTY AS DICKINSON.  THE 1948 DECREE
COULD HAVE AWARDED COSTS AGAINST PETROLEUM AS EASILY AS AGAINST
DICKINSON, SINCE THE 1947 DECREE EXPRESSLY RESERVED THE QUESTION OF
COSTS AS TO ALL PARTIES.  AND THE EXTENT OF DICKINSON'S LIABILITY,
ADJUDICATED IN THE 1947 DECREE, WAS IN NO WAY ALTERED BY THE 1948
DECREE ALLOCATING RECOVERY AMONG THE RINKE SUBSCRIBERS. 

FN6  LLOYD'S ADMINISTRATOR IS LISTED IN THE COURT OF APPEALS OPINION
AS "APPELLEE-APPELLANT." 
..END :














EICHENLAUB V. SHAUGHNESSY, 338 U.S. 521 


ARGUED NOVEMBER 16-17, 1949.  - DECIDED JANUARY 16, 1950.  - 167 F.2D
659, 171 F.2D 773, AFFIRMED. 


AT A TIME WHEN HE WAS A NATURALIZED CITIZEN OF THE UNITED STATES, A
PERSON WAS CONVICTED OF A CONSPIRACY TO VIOLATE THE ESPIONAGE ACT OF
1917.  THEREAFTER, IN A DENATURALIZATION PROCEEDING, HIS CITIZENSHIP
WAS REVOKED AND HIS CERTIFICATE OF NATURALIZATION WAS CANCELED ON THE
GROUND THAT HE HAD PROCURED IT BY FRAUD.  THEREAFTER, HE WAS ORDERED
DEPORTED UNDER THE ACT OF MAY 10, 1920, WHICH PROVIDED FOR THE
DEPORTATION OF "ALIENS WHO SINCE AUGUST 1, 1914, HAVE BEEN OR MAY
HEREAFTER BE CONVICTED OF ANY VIOLATION OR CONSPIRACY TO VIOLATE" THE
ESPIONAGE ACT OF 1917 AND WHO ARE FOUND TO BE "UNDESIRABLE RESIDENTS"
OF THE UNITED STATES.  HELD:  HIS DEPORTATION WAS AUTHORIZED BY THE
1920 ACT.  PP. 522-533. 

(A)  THE ACT OF MAY 10, 1920, IS NOT LIMITED TO ALIENS WHO NEVER HAVE
BEEN NATURALIZED, NOR DOES IT EXEMPT PERSONS WHOSE CERTIFICATES OF
NATURALIZATION HAVE BEEN CANCELED FOR FRAUD IN PROCUREMENT.  P. 528. 

(B)  CONGRESS MAY VALIDLY PROVIDE FOR THE DEPORTATION OF ALIENS ON
GROUNDS OF PAST MISCONDUCT.  P. 529. 

(C)  THE ACT OF MAY 10, 1920, DOES NOT REQUIRE THAT AN ALIEN WHOSE
DEPORTATION IT AUTHORIZES SHALL HAVE HAD THE STATUS OF AN ALIEN AT THE
TIME OF THE CONVICTION ON WHICH THE ORDER OF DEPORTATION IS BASED.  PP.
529-531. 

(D)  THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT OF MAY
10, 1920, THAT SUGGESTS A CONGRESSIONAL INTENT TO DISTINGUISH BETWEEN
ALIENS WHO NEVER HAD BEEN NATURALIZED AND THOSE WHO HAD OBTAINED
NATURALIZATION BY FRAUD AND LOST IT BY COURT DECREE.  PP. 531-533. 

(E)  THE ACT OF MAY 10, 1920, IS NOT RENDERED INAPPLICABLE TO A
CONVICTION UNDER THE ESPIONAGE ACT OF 1917 BY REASON OF THE FACT THAT
IN 1940 THE PENALTY FOR VIOLATION OF THAT ACT WAS INCREASED.  P. 533,
N. 20. 

UNITED STATES EX REL. EICHENLAUB V. SHAUGHNESSY, ACTING DISTRICT
DIRECTOR OF IMMIGRATION AND NATURALIZATION. 

NO. 3.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT* . 

*TOGETHER WITH NO. 82, UNITED STATES EX REL. WILLUMEIT V.
SHAUGHNESSY, ACTING DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION,
ALSO ON CERTIORARI TO THE SAME COURT. 

IN NO. 3, THE DISTRICT COURT DISMISSED A WRIT OF HABEAS CORPUS IN A
PROCEEDING CHALLENGING THE VALIDITY OF THE RELATOR'S DETENTION UNDER A
DEPORTATION ORDER.  THE COURT OF APPEALS AFFIRMED.  167 F.2D 659.  AN
ORDER OF THIS COURT DENYING CERTIORARI, 335 U.S. 867, WAS SUBSEQUENTLY
VACATED AND CERTIORARI WAS GRANTED.  337 U.S. 955.  AFFIRMED, P. 533. 

IN NO. 82, THE DISTRICT COURT DISMISSED A WRIT OF HABEAS CORPUS IN A
PROCEEDING CHALLENGING THE VALIDITY OF THE RELATOR'S DETENTION UNDER A
DEPORTATION ORDER.  THE COURT OF APPEALS AFFIRMED.  171 F.2D 773.  THIS
COURT GRANTED CERTIORARI.  337 U.S. 955.  AFFIRMED, P. 12. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT THE QUESTION OF WHETHER SEC. 1 OF THE ACT OF MAY
10, 1920,  FN1  AUTHORIZES THE DEPORTATION OF AN ALIEN UNDER THE
FOLLOWING CIRCUMSTANCES OCCURRING SINCE THAT ACT TOOK EFFECT: 

(1)  THE ALIEN WAS NATURALIZED; (2) WHILE HE WAS A NATURALIZED
CITIZEN HE WAS CONVICTED OF A CONSPIRACY TO VIOLATE THE ESPIONAGE ACT
OF 1917; FN2  (3) THEREAFTER, IN A DENATURALIZATION PROCEEDING, HIS
CITIZENSHIP WAS REVOKED AND HIS CERTIFICATE OF NATURALIZATION CANCELED
ON THE GROUND THAT HE HAD PROCURED IT BY FRAUD; AND (4) THE PROPER
AUTHORITY, AFTER THE REQUIRED HEARINGS, FOUND THE ALIEN TO BE AN
UNDESIRABLE RESIDENT OF THE UNITED STATES AND ORDERED HIM DEPORTED. 
FOR THE REASONS HEREINAFTER STATED, WE HOLD THAT THE ACT AUTHORIZES
SUCH DEPORTATION. 

                 NO. 3 - THE EICHENLAUB CASE. 

RICHARD EICHENLAUB, THE RELATOR, WAS BORN IN GERMANY IN 1905, AND
ENTERED THE UNITED STATES FROM THERE IN 1930.  HE WAS NATURALIZED AS AN
AMERICAN CITIZEN IN 1936, AND HAS RESIDED IN THE UNITED STATES
CONTINUOUSLY SINCE HIS REENTRY IN 1937, WHEN HE RETURNED FROM A VISIT
TO GERMANY.  IN 1941, ON HIS PLEA OF GUILTY IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, HE WAS CONVICTED
OF CONSPIRING TO ACT AS AN AGENT FOR A FOREIGN GOVERNMENT WITHOUT
HAVING BEEN REGISTERED WITH THE SECRETARY OF STATE.  FN3  HE WAS
SENTENCED TO IMPRISONMENT FOR 18 MONTHS AND FINED $1,000.  IN 1944,
WITH HIS CONSENT, A JUDGMENT WAS ENTERED IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CANCELING HIS CITIZENSHIP
ON THE GROUND OF FRAUD IN ITS PROCUREMENT.  FN4  DEPORTATION
PROCEEDINGS WERE THEN INSTITUTED AGAINST HIM  FN5  AND, AFTER A HEARING
BEFORE AN IMMIGRATION INSPECTOR AND A REVIEW BY THE BOARD OF
IMMIGRATION APPEALS, THE ATTORNEY GENERAL, IN 1945, ORDERED HIS
DEPORTATION.  FN6 

THIS PROCEEDING FOR A WRIT OF HABEAS CORPUS WAS THEN FILED IN THE
COURT LAST NAMED.  AFTER HEARING, THE WRIT WAS DISMISSED AND THE
DISMISSAL WAS AFFIRMED BY THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT.  167 F.2D 659.  WE DENIED CERTIORARI.  335 U.S. 867. 
HOWEVER, WHEN THE COURT OF APPEALS AFFIRMED THE WILLUMEIT CASE, NOW
BEFORE US, ON THE AUTHORITY OF THIS CASE, BUT CALLED ATTENTION TO THE
ADDED IMPRESSION WHICH HAD BEEN MADE UPON IT BY THE ARGUMENT IN FAVOR
OF WILLUMEIT ON THE POINT ABOVE STATED, WE VACATED OUR DENIAL OF
CERTIORARI IN THIS CASE AND GRANTED CERTIORARI IN BOTH.  337 U.S. 955. 

                NO. 82 - THE WILLUMEIT CASE. 

IN 1905, OTTO A. WILLUMEIT, THE RELATOR, WAS BORN IN LORRAINE, WHICH
AT THAT TIME WAS A PART OF GERMANY, BUT AT THE TIME OF HIS ARREST FOR
DEPORTATION HAD BECOME A PART OF FRANCE.  HE ENTERED THE UNITED STATES
FROM THERE IN 1925.  IN 1931 HE WAS NATURALIZED, AND HE HAS RESIDED IN
THE UNITED STATES CONTINUOUSLY SINCE HIS REENTRY IN 1941 AFTER A VISIT
TO MEXICO.  IN 1942, ON HIS PLEA OF GUILTY IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT, HE WAS CONVICTED OF
HAVING CONSPIRED TO VIOLATE THAT PORTION OF THE ESPIONAGE ACT OF 1917
WHICH MADE IT A CRIME TO TRANSMIT TO AN AGENT OF A FOREIGN COUNTRY
INFORMATION RELATING TO THE NATIONAL DEFENSE OF THIS COUNTRY, WITH
INTENT OR REASON TO BELIEVE THAT SUCH INFORMATION WOULD BE USED TO THE
INJURY OF THE UNITED STATES OR TO THE ADVANTAGE OF A FOREIGN NATION. 
FN7  HE WAS SENTENCED TO IMPRISONMENT FOR FIVE YEARS.  IN 1944, WITH
HIS CONSENT, A JUDGMENT WAS ENTERED IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS CANCELING HIS CITIZENSHIP ON THE
GROUND OF FRAUD IN ITS PROCUREMENT.  FN8  DEPORTATION PROCEEDINGS WERE
THEN INSTITUTED AGAINST HIM AND, AFTER A HEARING BEFORE AN IMMIGRATION
INSPECTOR AND A REVIEW BY THE BOARD OF IMMIGRATION APPEALS, THE
ATTORNEY GENERAL, IN 1947, ORDERED HIS DEPORTATION.  FN9 

THIS PROCEEDING FOR A WRIT OF HABEAS CORPUS WAS FILED IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND, AFTER
A HEARING, THE WRIT WAS DISMISSED.  THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT AFFIRMED THE DISMISSAL ON THE AUTHORITY OF ITS
DECISION IN THE EICHENLAUB CASE.  FN10  171 F.2D 773.  BECAUSE OF THE
IMPORTANCE OF THE ISSUE TO AMERICAN CITIZENSHIP, WE GRANTED
CERTIORARI.  337 U.S. 955. 

THE PROPER SCOPE OF THE ACT OF 1920 AS APPLIED TO THESE CASES IS
FOUND IN THE ORDINARY MEANING OF ITS WORDS.  THE MATERIAL PROVISIONS OF
THE ACT ARE AS FOLLOWS: 

"  ...  THAT ALIENS OF THE FOLLOWING CLASSES  ...  SHALL, UPON THE
WARRANT OF THE (ATTORNEY GENERAL), BE TAKEN INTO HIS CUSTODY AND
DEPORTED  ...  IF THE (ATTORNEY GENERAL),  FN11  AFTER HEARING, FINDS
THAT SUCH ALIENS ARE UNDESIRABLE RESIDENTS OF THE UNITED STATES, TO
WIT: 

     .         .     .         .         . 

"(2)  ALL ALIENS WHO SINCE AUGUST 1, 1914, HAVE BEEN OR MAY HEREAFTER
BE CONVICTED OF ANY VIOLATION OR CONSPIRACY TO VIOLATE ANY OF THE
FOLLOWING ACTS OR PARTS OF ACTS, THE JUDGMENT ON SUCH CONVICTION HAVING
BECOME FINAL, NAMELY: 

"(A)  (THE ESPIONAGE ACT OF 1917, AS AMENDED)."  FN12 

THE ABOVE WORDS REQUIRE THAT ALL PERSONS TO BE DEPORTED UNDER THIS
ACT SHALL BE "ALIENS."  FN13 THEY DO NOT LIMIT ITS SCOPE TO ALIENS WHO
NEVER HAVE BEEN NATURALIZED.  THEY DO NOT EXEMPT THOSE WHO HAVE SECURED
CERTIFICATES OF NATURALIZATION, BUT THEN HAVE LOST THEM BY COURT ORDER
ON THE GROUND OF FRAUD IN THEIR PROCUREMENT.  THEY DO NOT SUGGEST THAT
SUCH PERSONS ARE NOT AS CLEARLY "ALIENS" AS THEY WERE BEFORE THEIR
FRAUDULENT NATURALIZATION.  FN14  THERE IS NO QUESTION AS TO THE POWER
OF CONGRESS TO ENACT A STATUTE TO DEPORT ALIENS BECAUSE OF PAST
MISCONDUCT.  FN15  THAT IS WHAT CONGRESS DID IN THE ACT OF 1920, AND
THERE IS NO OCCASION TO RESTRICT ITS LANGUAGE SO AS TO NARROW ITS PLAIN
MEANING. 

THE ONE SUBSTANTIAL ISSUE IS WHETHER THE ACT REQUIRES THAT THE
RELATORS NOT ONLY MUST HAVE BEEN "ALIENS" AT THE TIMES WHEN THEY WERE
ORDERED DEPORTED, BUT THAT THEY MUST ALSO HAVE HAD THAT STATUS AT THE
TIMES WHEN THEY WERE CONVICTED OF DESIGNATED OFFENSES AGAINST THE
NATIONAL SECURITY.  THE GOVERNMENT SUGGESTS THAT ONE ROUTE TO A
CONCLUSION ON THIS ISSUE IS TO HOLD THAT THE RELATORS, AS A MATTER OF
LAW, WERE "ALIENS" WHEN SO CONVICTED.  THE BASIS IT SUGGESTS FOR SO
HOLDING IS THAT THE JUDICIAL ANNULMENT OF THE RELATORS' NATURALIZATIONS
ON THE GROUND OF FRAUD IN THEIR PROCUREMENT DEPRIVED THEM OF THEIR
NATURALIZATIONS AB INITIO.  ROSENBERG V. UNITED STATES, 60 F.2D
475(C.A. 3D CIR.).  THEY THUS WOULD BE RETURNED TO THEIR STATUS AS
ALIENS AS OF THE DATE OF THEIR RESPECTIVE NATURALIZATIONS. 
ACCORDINGLY, THEY WOULD COME WITHIN THE SCOPE OF THE ACT OF 1920, EVEN
IF THAT ACT WERE HELD TO REQUIRE THAT ALL OFFENDERS SUBJECT TO
DEPORTATION UNDER IT ALSO MUST HAVE HAD AN ALIEN STATUS WHEN CONVICTED
OF THE DESIGNATED OFFENSES. 

IN OUR OPINION, IT IS NOT NECESSARY, FOR THE PURPOSES OF THESE CASES,
TO GIVE A RETROACTIVE EFFECT TO THE DENATURALIZATION ORDERS.  A SIMPLER
AND EQUALLY COMPLETE SOLUTION LIES IN THE VIEW THAT THE ACT DOES NOT
REQUIRE THAT THE OFFENDERS REACHED BY IT MUST HAVE HAD THE STATUS OF
ALIENS AT THE TIME THEY WERE CONVICTED.  AS THE ACT DOES NOT STATE THAT
NECESSITY, IT IS APPLICABLE TO ALL SUCH OFFENDERS, INCLUDING THOSE
DENATURALIZED BEFORE OR AFTER THEIR CONVICTIONS AS WELL AS THOSE WHO
NEVER HAVE BEEN NATURALIZED.  THE CONVICTIONS OF THE RELATORS FOR
DESIGNATED OFFENSES ARE IMPORTANT CONDITIONS PRECEDENT TO THEIR BEING
FOUND TO BE UNDESIRABLE RESIDENTS.  THEIR STATUS AS ALIENS IS A
NECESSARY FURTHER CONDITION OF THEIR DEPORTABILITY.  WHEN BOTH
CONDITIONS ARE MET AND, AFTER HEARING, THE ATTORNEY GENERAL FINDS THEM
TO BE UNDESIRABLE RESIDENTS OF THE UNITED STATES, THE ACT IS
SATISFIED. 

THE STATUTORY LANGUAGE WHICH SAYS THAT "ALIENS WHO SINCE AUGUST 1,
1914, HAVE BEEN OR MAY HEREAFTER BE CONVICTED  ..."  FN16  REFERS TO
THE REQUIREMENT THAT THE DEPORTATIONS BE APPLICABLE TO ALL PERSONS WHO
HAD BEEN CONVICTED OF CERTAIN ENUMERATED OFFENSES SINCE ABOUT THE
BEGINNING OF WORLD WAR I (AUGUST 1, 1914), WHETHER THOSE CONVICTIONS
WERE HAD BEFORE OR AFTER MAY 10, 1920.  THE CRIMES LISTED WERE NOT
CRIMES IN WHICH CONVICTIONS DEPENDED UPON THE CITIZENSHIP, OR LACK OF
CITIZENSHIP, OF THEIR PERPETRATORS.  IN FACT, THEY WERE CRIMES AGAINST
THE NATIONAL SECURITY, SO THAT THEIR COMMISSION BY NATURALIZED CITIZENS
MIGHT WELL BE REGARDED BY CONGRESS AS MORE REPREHENSIBLE THAN THEIR
COMMISSION BY ALIENS WHO NEVER HAD BEEN NATURALIZED. 

THE RECOGNIZED PURPOSE OF THE ACT WAS DEPORTATION.  IT IS DIFFICULT
TO IMAGINE A REASON WHICH WOULD HAVE MADE IT NATURAL OR APPROPRIATE FOR
CONGRESS TO AUTHORIZE THE ATTORNEY GENERAL TO PASS UPON THE
UNDESIRABILITY AND DEPORTABILITY OF AN ALIEN, NEVER NATURALIZED, WHO
HAD BEEN CONVICTED OF ESPIONAGE, BUT WOULD PROHIBIT THE ATTORNEY
GENERAL FROM PASSING UPON THE UNDESIRABILITY AND DEPORTABILITY OF
ALIENS, SUCH AS THE RELATORS IN THE INSTANT CASES, WHO HAD PROCURED
CERTIFICATES OF NATURALIZATION BEFORE THEIR CONVICTIONS OF ESPIONAGE,
BUT LATER HAD BEEN DEPRIVED OF THOSE CERTIFICATES ON THE GROUND OF
FRAUD IN THEIR PROCUREMENT.  IF THERE WERE TO BE A DISTINCTION MADE IN
FAVOR OF ANY ALIENS BECAUSE THEY WERE AT ONE TIME NATURALIZED CITIZENS,
THE LOGICAL TIME AT WHICH THAT STATUS WOULD BE IMPORTANT WOULD BE THE
TIME OF THE COMMISSION OF THE CRIMES, RATHER THAN THE PURELY FORTUITOUS
TIME OF THEIR CONVICTION OF THOSE CRIMES.  NOT EVEN SUCH A DISTINCTION
FINDS SUPPORT IN THE STATUTE. 

THE FAILURE OF CONGRESS TO GIVE EXPRESSION TO THE DISTINCTION, HERE
URGED BY THE RELATORS, BETWEEN ALIENS WHO NEVER HAVE BEEN NATURALIZED
AND THOSE WHO HAVE BEEN DENATURALIZED, WAS NOT DUE TO UNFAMILIARITY
WITH SUCH MATTERS.  IN 1920, CONGRESS MUST HAVE BEEN FAMILIAR WITH THE
STATUS OF ALIENS DENATURALIZED UNDER SEC. 15 OF THE ACT OF JUNE 29,
1906, 34 STAT. 601, SEE 8 U.S.C. SEC. 736,  FN17 OR EXPATRIATED UNDER
SEC. 2 OF THE CITIZENSHIP ACT OF MARCH 2, 1907, 34 STAT. 1228, SEE 8
U.S.C. SEC. 801.  IT HAD HAD EXPERIENCE WITH THE DEPORTATION OF
UNDESIRABLE ALIENS UNDER SEC. 19 OF THE IMMIGRATION ACT OF FEBRUARY 5,
1917, 39 STAT. 889, SEE 8 U.S.C. SEC. 155, AS WELL AS UNDER OTHER
WARTIME ACTS AND PROCLAMATIONS.  THESE ACTS DID NOT DISTINGUISH BETWEEN
ALIENS WHO NEVER HAD BEEN NATURALIZED, AND THOSE WHO HAD OBTAINED
NATURALIZATION BY FRAUD ONLY TO LOSE IT BY COURT DECREE.  IF THE ACT OF
1920 HAD BEEN INTENDED TO INITIATE THE DISTINCTION HERE URGED BY THE
RELATORS, IT IS LIKELY THAT THE CHANGE WOULD HAVE BEEN MADE BY EXPRESS
PROVISION FOR IT.  WE FIND NOTHING IN ITS LEGISLATIVE HISTORY THAT
SUGGESTS A CONGRESSIONAL INTENT TO DISTINGUISH BETWEEN TWO SUCH GROUPS
OF UNDESIRABLE CRIMINALS. 

THE CONGRESSIONAL COMMITTEE REPORTS DEMONSTRATE THAT, WHILE THIS
STATUTE WAS FRAMED IN GENERAL LANGUAGE AND HAS REMAINED IN EFFECT FOR
30 YEARS, ITS ENACTMENT ORIGINALLY WAS OCCASIONED BY A DESIRE TO DEPORT
SOME OR ALL OF ABOUT 500 ALIENS WHO WERE THEN INTERNED AS DANGEROUS
ENEMY ALIENS AND WHO MIGHT BE FOUND, AFTER HEARINGS, TO BE UNDESIRABLE
RESIDENTS, AND ALSO TO DEPORT SOME OR ALL OF ABOUT 150 OTHER ALIENS
WHO, DURING WORLD WAR I, HAD BEEN CONVICTED OF VIOLATIONS OF THE
ESPIONAGE ACT OR OTHER NATIONAL SECURITY MEASURES, AND WHO MIGHT BE
FOUND, AFTER HEARINGS, TO BE UNDESIRABLE RESIDENTS.  FN18  IT IS HARDLY
CONCEIVABLE THAT, UNDER THOSE CIRCUMSTANCES, CONGRESS, WITHOUT
EXPRESSLY SAYING SO, INTENDED TO PREVENT THE SECRETARY OF LABOR (OR HIS
SUCCESSOR, THE ATTORNEY GENERAL) FROM DEPORTING ALIEN OFFENDERS MERELY
BECAUSE THEY HAD RECEIVED THEIR RESPECTIVE CONVICTIONS AT TIMES WHEN
THEY HELD CERTIFICATES OF NATURALIZATION, LATER CANCELED FOR FRAUD.  TO
DO SO WOULD PERMIT THE DENATURALIZED ALIENS TO SET UP A CANCELED
FRAUDULENT STATUS AS A DEFENSE, AND SUCCESSFULLY TO CLAIM BENEFITS AND
ADVANTAGES UNDER IT.  FN19  CONGRESS, IN 1920, EVIDENTLY WANTED TO
PROVIDE A MEANS BY WHICH TO FREE THE UNITED STATES OF RESIDENTS WHO (1)
HAD BEEN OR THEREAFTER WERE CONVICTED OF CERTAIN OFFENSES AGAINST THE
SECURITY OF THE UNITED STATES, (2) HAD BEEN OR THEREAFTER WERE FOUND,
AFTER HEARING, TO BE UNDESIRABLE RESIDENTS OF THE UNITED STATES, AND
(3) BEING ALIENS WERE SUBJECT TO DEPORTATION.  CONGRESS SAID JUST
THAT.   WE HAVE GIVEN CONSIDERATION TO SUCH OTHER POINTS AS WERE RAISED
BY THE RELATORS, BUT WE FIND THAT THEY DO NOT AFFECT THE RESULT.  FN20 

THE JUDGMENT OF THE COURT OF APPEALS IN EACH CASE IS THEREFORE
AFFIRMED. 

FN1  41 STAT. 593, SEE 8 U.S.C. SEC. 157. 

FN2  ACT OF JUNE 15, 1917, 40 STAT. 217. 

FN3  THIS WAS UNDER SEC. 37 OF THE GENERAL CONSPIRACY STATUTE, 35
STAT. 1096, 18 U.S.C. (1946 ED.)  SEC.  88, NOW 18 U.S.C. SEC. 371; AND
UNDER SEC. 3 OF TITLE VIII OF THE ESPIONAGE ACT OF 1917, 40 STAT. 226,
22 U.S.C. SEC. 233, AS AMENDED BY SEC. 6 OF THE ACT OF MARCH 28, 1940,
54 STAT. 80, 22 U.S.C. (1946 ED.)  SEC.  601, NOW 18 U.S.C. SEC. 951. 
SEVERAL OTHER DEFENDANTS STOOD TRIAL IN THIS PROCEEDING, AND WERE
CONVICTED BOTH ON THIS AND ON A GENERAL ESPIONAGE COUNT.  THEIR
CONVICTION WAS AFFIRMED ON THIS COUNT, BUT REVERSED ON THE OTHER. 
UNITED STATES V. HEINE, 151 F.2D 813(C.A.2D CIR.). 

FN4  UNDER SEC. 338 OF THE NATIONALITY ACT OF 1940, 54 STAT. 1158
1160, 8 U.S.C. SEC. 738. 

FN5  UNDER SEC. 1 OF THE ACT OF MAY 10, 1920, 41 STAT. 593-594, 8
U.S.C. SEC. 157. 

FN6  UNDER THE 1940 REORGANIZATION PLAN NO. V, 54 STAT. 1238, THE
FUNCTIONS AND POWERS OF THE SECRETARY OF LABOR UNDER THE ACT OF MAY 10,
1920, WERE TRANSFERRED TO THE ATTORNEY GENERAL.  THE WARRANT OF
DEPORTATION RECITED THAT THE RELATOR HAD BEEN "FOUND TO BE A MEMBER OF
THE UNDESIRABLE CLASSES OF ALIEN RESIDENTS ENUMERATED  ...  " IN THE
ACT OF MAY 10, 1920.  WHILE THE ADMINISTRATIVE FILE IS NOT IN THE
PRINTED RECORD, IT WAS USED IN ARGUMENT IN THE COURT OF APPEALS AND IS
ON FILE HERE.  THE BOARD OF IMMIGRATION APPEALS AT PAGE 5 OF ITS
OPINION FOUND AS A FACT THAT THE "RESPONDENT IS AN UNDESIRABLE RESIDENT
OF THE UNITED STATES."  THE COURT OF APPEALS, AT 167 F.2D 660, PROPERLY
RECOGNIZED THIS ADDITIONAL MATTER IN THE RECORD AS JUSTIFYING ITS
ACCEPTANCE OF THE LESS SPECIFIC FINDING RECITED IN THE WARRANT OF
DEPORTATION, AND AS DISTINGUISHING THIS CASE FROM MAHLER V. EBY, 264
U.S. 32, 42-46, ON THAT POINT. 

FN7  THIS CONVICTION WAS UNDER SECS. 2 AND 4 OF TITLE I OF THE ACT OF
JUNE 15, 1917, 40 STAT. 218-219, 50 U.S.C. (1946 ED.)  SECS.  32 AND
34, NOW 18 U.S.C. SECS. 794 AND 2388. 

FN8  SEE NOTE 4, SUPRA.  IN THIS RECORD THE FINAL DECREE OF
DENATURALIZATION IS SET FORTH IN FULL.  AMONG OTHER THINGS, IT STATES
THAT THE ORDER ADMITTING THE RELATOR TO CITIZENSHIP - 

"IS HEREBY VACATED, ANNULLED AND SET ASIDE, AND THAT THE CERTIFICATE
OF CITIZENSHIP,  ...  IS HEREBY CANCELLED AND DECLARED NULL AND VOID,
...  AND THE DEFENDANT OTTO ALBERT WILLUMEIT IS HEREBY FOREVER
RESTRAINED AND ENJOINED FROM SETTING UP OR CLAIMING ANY RIGHTS OR
PRIVILEGES, BENEFITS OR ADVANTAGES WHATSOEVER UNDER SAID ORDER,  ...
OR THE CERTIFICATE OF CITIZENSHIP ISSUED BY VIRTUE OF SAID ORDER." 

FN9  THE ORDER WAS BASED NOT ONLY UPON SEC. 1 OF THE ACT OF MAY 10,
1920, 41 STAT. 593-594, 8 U.S.C. SEC. 157, THE APPLICABILITY OF WHICH
IN TURN WAS BASED UPON THE RELATOR'S CONVICTION OF A VIOLATION OF THE
ESPIONAGE ACT OF 1917, BUT ALSO UPON SECS. 13 AND 14 OF THE IMMIGRATION
ACT OF 1924, 43 STAT. 161-162, AS AFFECTED BY 46 STAT. 581, 50 STAT.
165, THE 1940 REORGANIZATION PLAN NO. V, 54 STAT. 1238, AND 60 STAT.
975, 8 U.S.C. SECS. 213 AND 214, HAVING TO DO WITH RELATOR'S REENTRY
INTO THE UNITED STATES FROM MEXICO IN 1941.  THE COURT OF APPEALS FOUND
IT UNNECESSARY TO PASS ON THIS ALLEGED GROUND FOR DEPORTATION IN VIEW
OF ITS CONCLUSION AS TO THE OTHER GROUND.  171 F.2D AT 775.  WE CONCUR
FOR THE SAME REASON. 

AS IN THE EICHENLAUB CASE, THE WARRANT OF DEPORTATION APPARENTLY
STATED THAT IT WAS BASED ON THE FACT THAT THE RELATOR "HAS BEEN FOUND
TO BE A MEMBER OF THE UNDESIRABLE CLASSES OF ALIEN RESIDENTS ...  "
WHILE THE WARRANT IS NOT PRINTED IN THE RECORD, THE FINDINGS OF THE
COMMISSIONER OF IMMIGRATION AND OF THE BOARD OF IMMIGRATION APPEALS ARE
PRINTED IN FULL.  EACH CONTAINS AN EXPRESS FINDING THAT THE RELATOR "IS
AN UNDESIRABLE RESIDENT OF THE UNITED STATES."  EACH STATES REASONS FOR
SO CONCLUDING. 

FN10  THE RETURN TO THE WRIT OF HABEAS CORPUS IN THIS CASE STATES
THAT, IN ADDITION TO ISSUING THE ABOVE-DESCRIBED WARRANT OF
DEPORTATION, THE ATTORNEY GENERAL ORDERED THE RELATOR INTERNED IN 1945
AS A DANGEROUS ALIEN ENEMY AND, IN 1946, ORDERED THE RELATOR REMOVED
FROM THIS COUNTRY FOR THAT REASON.  THAT PROCEEDING DERIVES ITS
AUTHORITY FROM THE ALIEN ENEMY ACT OF JULY 6, 1798, 1 STAT. 577, AS IT
APPEARS IN R.S. SEC. 4067, AS AFFECTED BY 40 STAT. 531, AND
PRESIDENTIAL PROCLAMATION NO. 2655 OF JULY 14, 1945, 3 C.F.R. 1945
SUPP. 29; 59 STAT., PT. 2, 870, SEE 50 U.S.C. SEC. 21.  IT THUS RAISES
QUESTIONS AS TO THE "ENEMY" STATUS OF AN ALIEN BORN IN LORRAINE, WHICH
AT THE TIME OF HIS BIRTH WAS A PART OF GERMANY, BUT AT THE TIME OF HIS
ARREST WAS A PART OF FRANCE.  WHILE THE GOVERNMENT REFERS TO THIS ACT
IN ITS ARGUMENT IN INTERPRETING THE ACT OF MAY 10, 1920, AS IN PARI
MATERIA, IT DOES NOT PRESS THIS ARREST AS A SEPARATE GROUND FOR
DISMISSAL OF THE WRIT OF HABEAS CORPUS.  SEE UNITED STATES EX REL.
ZELLER V. WATKINS, 167 F.2D 279(C.A.2D CIR.); UNITED STATES EX REL.
GREGOIRE V. WATKINS, 164 F.2D 137(C.A.2D CIR.); UNITED STATES EX REL.
D'ESQUIVA V. UHL, 137 F.2D 903(C.A.2D CIR.); UNITED STATES EX REL.
UMECKER V. MCCOY, 54 F.SUPP.  679(N.D.).  THE COURT BELOW DID NOT FIND
IT NECESSARY TO PASS ON THIS ISSUE (171 F.2D AT 775), NOR DO WE. 

FN11  SEE NOTE 6, SUPRA. 

FN12  THE FIRST PARAGRAPHS OF THE ACT OF MAY 10, 1920, ARE, IN FULL,
AS FOLLOWS: 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT ALIENS OF THE
FOLLOWING CLASSES, IN ADDITION TO THOSE FOR WHOSE EXPULSION FROM THE
UNITED STATES PROVISION IS MADE IN THE EXISTING LAW, SHALL, UPON THE
WARRANT OF THE SECRETARY OF LABOR, BE TAKEN INTO HIS CUSTODY AND
DEPORTED IN THE MANNER PROVIDED IN SECTIONS 19 AND 20 OF THE ACT OF
FEBRUARY 5, 1917, ENTITLED 'AN ACT TO REGULATE THE IMMIGRATION OF
ALIENS TO, AND THE RESIDENCE OF ALIENS IN, THE UNITED STATES,' IF THE
SECRETARY OF LABOR, AFTER HEARING, FINDS THAT SUCH ALIENS ARE
UNDESIRABLE RESIDENTS OF THE UNITED STATES, TO WIT: 

"(1)  ALL ALIENS WHO ARE NOW INTERNED UNDER SECTION 4067 OF THE
REVISED STATUTES OF THE UNITED STATES AND THE PROCLAMATIONS ISSUED BY
THE PRESIDENT IN PURSUANCE OF SAID SECTION UNDER DATE OF APRIL 6, 1917,
NOVEMBER 16, 1917, DECEMBER 11, 1917, AND APRIL 19, 1918,
RESPECTIVELY. 

"(2)  ALL ALIENS WHO SINCE AUGUST 1, 1914, HAVE BEEN OR MAY HEREAFTER
BE CONVICTED OF ANY VIOLATION OR CONSPIRACY TO VIOLATE ANY OF THE
FOLLOWING ACTS OR PARTS OF ACTS, THE JUDGMENT ON SUCH CONVICTION HAVING
BECOME FINAL, NAMELY: 

"(A)  AN ACT ENTITLED 'AN ACT TO PUNISH ACTS OF INTERFERENCE WITH THE
FOREIGN RELATIONS, THE NEUTRALITY, AND THE FOREIGN COMMERCE OF THE
UNITED STATES, TO PUNISH ESPIONAGE, AND BETTER TO ENFORCE THE CRIMINAL
LAWS OF THE UNITED STATES, AND FOR OTHER PURPOSES,' APPROVED JUNE 15,
1917, OR THE AMENDMENT THEREOF APPROVED MAY 16, 1918; ...  "  41 STAT.
593-594, SEE 8 U.S.C. SEC. 157. 

THE SUBSEQUENT SUBDIVISIONS (2)(B) TO (H), INCLUSIVE, REFER TO THE
EXPLOSIVES ACT, 40 STAT. 385; ACT RESTRICTING FOREIGN TRAVEL, 40 STAT.
559; ACT PUNISHING INJURY TO WAR MATERIAL, 40 STAT. 533; ARMY EMERGENCY
INCREASE ACT, 40 STAT. 80, 884, 955; ACT PUNISHING THREATS AGAINST THE
PRESIDENT, 39 STAT. 919; TRADING WITH THE ENEMY ACT, 40 STAT. 411; AND
THE SEDITIOUS CONSPIRACY SECTION OF THE PENAL CODE, 35 STAT. 1088. 

FN13  THE WORD "ALIEN" IS NOT DEFINED IN THE ACT.  IT IS, HOWEVER,
DEFINED IN CLOSELY RELATED STATUTES.  THE IMMIGRATION ACT OF FEBRUARY
5, 1917, PROVIDES:  "THE WORD 'ALIEN' WHEREVER USED IN THIS ACT SHALL
INCLUDE ANY PERSON NOT A NATIVE-BORN OR NATURALIZED CITIZEN OF THE
UNITED STATES; ...  "  39 STAT. 874, SEE 8 U.S.C. SEC. 173.  THE
IMMIGRATION ACT OF MAY 26, 1924, PROVIDES:  "THE TERM 'ALIEN' INCLUDES
ANY INDIVIDUAL NOT A NATIVE-BORN OR NATURALIZED CITIZEN OF THE UNITED
STATES,  ...  "  43 STAT. 168, SEE 8 U.S.C. SEC. 224.  THESE
DEFINITIONS ARE IN EFFECT TODAY.  IN TITLE 8 OF THE U.S.C. THEY ARE
INCLUDED IN AND ARE MADE TO APPLY TO THE ENTIRE CHAPTER ON IMMIGRATION
AND THAT CHAPTER INCLUDES AS SEC. 157 THE ACT OF MAY 10, 1920. 

FN14  WHILE THE ACT ALSO MAKES NO EXPRESS DISTINCTION BETWEEN ITS
APPLICABILITY TO ALIENS WHO NEVER HAVE BEEN NATURALIZED AND TO THOSE
WHO HAVE BEEN NATURALIZED, BUT HAVE LOST THEIR NATURALIZED CITIZENSHIP
BY LAWFUL AND VOLUNTARY EXPATRIATION (SEE 8 U.S.C. SECS. 800-810), THE
POSSIBILITY OF SUCH A DISTINCTION IS NOT BEFORE US IN THE INSTANT
CASES.  THE REQUIRED FINDING BY THE ATTORNEY GENERAL, AFTER HEARING,
THAT ANY ALIEN WHO IS TO BE DEPORTED IS AN UNDESIRABLE RESIDENT OF THE
UNITED STATES PREVENTS THE AUTOMATIC DEPORTATION OF ANYONE UNDER THIS
ACT WITHOUT SUCH A HEARING AND FINDING. 

FN15  MAHLER V. EBY, 264 U.S. 32; NG FUNG HO V. WHITE, 259 U.S. 276,
280; BUGAJEWITZ V. ADAMS, 228 U.S. 585; FONG YUE TING V. UNITED STATES,
149 U.S. 698, 730. 

FN16  SEE NOTE 12, SUPRA. 

FN17  "THE PRACTICE OF FILING PROCEEDINGS TO CANCEL CERTIFICATES OF
NATURALIZATION BECAME WIDESPREAD IMMEDIATELY AFTER THE 1906 ACT WENT
INTO EFFECT.  IN THE FISCAL YEAR 1907 THERE WERE EIGHTY-SIX
CERTIFICATES CANCELLED; IN 1908 THERE WERE FOUR HUNDRED AND FIFTY
SEVEN; AND IN 1909, NINE HUNDRED AND TWENTY-ONE.  DURING THE THIRTY
YEARS FOLLOWING THE EFFECTIVE DATE OF THE 1906 ACT, MORE THAN TWELVE
THOUSAND CERTIFICATES OF NATURALIZATION WERE CANCELLED ON THE GROUND OF
FRAUD OR ON THE GROUND THAT THE ORDER AND CERTIFICATE OF NATURALIZATION
WERE ILLEGALLY PROCURED."  CABLE, LOSS OF CITIZENSHIP 4-5(1943). 

FN18  SEE H.R. REP. NO. 143 AND S. REP. NO. 283, 66TH CONG., 1ST
SESS.; 58 CONG. REC. 3362-3376(1919); LUDECKE V. WATKINS, 335 U.S. 160,
167-168, N. 12, 179-181. 

FN19  COMPARE THE INJUNCTION INCLUDED IN THE FINAL DECREE OF
DENATURALIZATION QUOTED IN NOTE 8, SUPRA. 

FN20  AMONG THESE IS THE CLAIM IN THE EICHENLAUB CASE THAT THE ACT OF
1920 DOES NOT APPLY TO HIS CONVICTION UNDER THE ESPIONAGE ACT OF 1917,
BECAUSE, IN SUBSTANCE, THE PENALTY FOR ITS VIOLATION HAD BEEN INCREASED
IN 1940.  THIS CONTENTION IS WITHOUT MERIT. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK AND MR. JUSTICE
JACKSON JOIN, DISSENTING. 

IN LIGHT OF THE ATTITUDE WITH WHICH THE DOOM OF DEPORTATION HAS
HERETOFORE BEEN VIEWED BY THIS COURT, IN THE CASE OF THOSE WHOSE LIVES
HAVE BEEN INTIMATELY TIED TO THIS COUNTRY, I DEEM IT MY DUTY NOT TO
SQUEEZE THE ACT OF MAY 10, 1920, 41 STAT. 593, AS AMENDED, 8 U.S.C.
SEC. 157, SO AS TO YIELD EVERY POSSIBLE HARDSHIP OF WHICH ITS WORDS ARE
SUSCEPTIBLE.  SEE NG FUNG HO V. WHITE, 259 U.S. 276, 284-85; DELGADILLO
V. CARMICHAEL, 332 U.S. 388, 391; FONG HAW TAN V. PHELAN, 333 U.S. 6,
10; BRIDGES V. WIXON, 326 U.S. 135, 147; FISWICK V. UNITED STATES, 329
U.S. 211, 222, N. 8; KLAPPROTT V. UNITED STATES, 335 U.S. 601, 612,
MODIFIED, 336 U.S. 942.  BECAUSE WE HAVE BEEN MINDFUL OF THE FACT THAT
SUCH DEPORTATION MAY RESULT "IN LOSS OF BOTH PROPERTY AND LIFE; OR OF
ALL THAT MAKES LIFE WORTH LIVING," THIS COURT CONCLUDED THAT DUE
PROCESS OF LAW REQUIRES JUDICIAL DETERMINATION WHEN A CLAIM OF
CITIZENSHIP IS MADE IN A DEPORTATION PROCEEDING, WHILE UPON ENTRY OR
REENTRY THE SAME CLAIM MAY BE DETERMINED ADMINISTRATIVELY.  IT TOOK
INTO ACCOUNT THE GREAT DIFFERENCE "IN SECURITY OF JUDICIAL OVER
ADMINISTRATIVE ACTION."  NG FUNG HO V. WHITE, SUPRA, AT 284, 285.  I AM
AWARE OF THE FACT THAT WE ARE DEALING HERE WITH A PERSON WHOSE
CITIZENSHIP HAS BEEN TAKEN FROM HIM.  I MAINTAIN, HOWEVER, THAT THE
RIGOROUS STATUTE PERMITTING DEPORTATION OF AN "ALIEN" SHOULD BE READ TO
APPLY ONLY TO ONE WHO WAS AN ALIEN WHEN CONVICTED AND SHOULD NOT BE
MADE TO APPLY TO PERSONS IN THE POSITION OF THESE PETITIONERS. 

SINCE SUCH CONSTRUCTION IS NOT UNREASONABLE, DUE REGARD FOR
CONSEQUENCES DEMANDS THAT THE STATUTE BE SO READ.  WHERE, AS HERE, A
STATUTE PERMITS EITHER OF TWO CONSTRUCTIONS WITHOUT VIOLENCE TO
LANGUAGE, THE CONSTRUCTION WHICH LEADS TO HARDSHIP SHOULD BE REJECTED
IN FAVOR OF THE PERMISSIBLE CONSTRUCTION CONSONANT WITH HUMANE
CONSIDERATIONS.  THE ACT OF MAY 10, 1920, PROVIDES THAT "ALL ALIENS WHO
SINCE AUGUST 1, 1914, HAVE BEEN OR MAY HEREAFTER BE CONVICTED" OF
CERTAIN OFFENSES SHALL BE DEPORTED UPON A FINDING THAT THEY ARE
"UNDESIRABLE RESIDENTS OF THE UNITED STATES."  SINCE NEITHER OF THE
PETITIONERS HEREIN WAS FOUND TO "HAVE BEEN" CONVICTED OF ANY OFFENSE
BEFORE PASSAGE OF THE ACT, THEY COME, IT IS URGED, WITHIN THE
ALTERNATIVE PREREQUISITE.  BUT THE STATUTE, IN TERMS, REFERS TO ALIENS
"WHO  ...  MAY HEREAFTER BE CONVICTED," NOT PERSONS WHO ARE CITIZENS
WHEN CONVICTED AND LATER TRANSFORMED INTO ALIENS BY THE PROCESS OF
DENATURALIZATION.  AND THIS VIEW OF THE STATUTE IS REINFORCED BY THE
LEGISLATIVE HISTORY AS WELL AS BY CONSIDERATIONS RELATING TO THE IMPACT
OF THE COURT'S DECISION UPON VARIOUS OTHER CONGRESSIONAL ENACTMENTS NOT
NOW BEFORE US. 

THE COMMITTEE REPORTS  FN1  AND CONGRESSIONAL DEBATE  FN2  MAKE PLAIN
THAT CONGRESS WAS PRINCIPALLY CONCERNED WITH THE STATUS OF ABOUT 500
PERSONS WHO HAD BEEN INTERNED BY THE PRESIDENT DURING THE FIRST WORLD
WAR AS DANGEROUS ALIEN ENEMIES AND ABOUT 150 ALIENS WHO HAD BEEN
CONVICTED UNDER VARIOUS SO-CALLED WAR STATUTES.  CONGRESS COULD NOT
HAVE BEEN UNAWARE THAT NATURALIZED CITIZENS MAY LOSE THEIR CITIZENSHIP;
YET NOWHERE IN THE LEGISLATIVE HISTORY DO WE FIND THE REMOTEST HINT
THAT CONGRESS HAD ALSO SUCH DENATURALIZED CITIZENS IN MIND.  ON THE
CONTRARY, THE DEBATES CONTAIN AMPLE EVIDENCE THAT CONGRESS HAD IN MIND
ONLY PERSONS CONVICTED WHEN ALIENS.  FN3    THE COURT'S DECISION HAS
SERIOUS IMPLICATIONS WITH RESPECT TO CITIZENS DENATURALIZED FOR REASONS
NOT INVOLVING MORAL BLAME,  FN4  AND WHO HAVE, WHILE CITIZENS,
COMMITTED ONE OF A VARIETY OF ACTS NOT INVOLVING MORAL OBLIQUITY AND
CERTAINLY NOT ENDANGERING THE SECURITY OF THE COUNTRY BUT WHICH
NEVERTHELESS ARE COVERED BY OTHER STATUTORY PROVISIONS IN LANGUAGE
SIMILAR TO THAT BEFORE US.  FN5 THUS, DISCRIMINATIONS WOULD AS A MATTER
OF POLICY HAVE TO BE DRAWN IF THIS GENERAL PROBLEM WERE CONSCIOUSLY
FACED BY POLICY-MAKERS.  THEY ARE NOT WITHIN THE POWER OF THIS COURT TO
DRAW.  IF AND WHEN CONGRESS GIVES THE MATTER THOUGHT, IT MAY WELL DRAW
DISTINCTIONS BETWEEN ONE WHO WAS AN ALIEN AND ONE WHO WAS NATURALIZED
AT THE TIME OF CONVICTION, BASED ON THE MANNER IN WHICH CITIZENSHIP WAS
LOST, THE TYPE OF OFFENSE COMMITTED, AND THE LAPSE OF TIME BETWEEN
CONVICTION AND DENATURALIZATION.  THESE SERIOUS DIFFERENTIATIONS SHOULD
NOT BE DISREGARDED BY GIVING A RUTHLESSLY UNDISCRIMINATING CONSTRUCTION
TO THE STATUTE BEFORE US NOT REQUIRED BY WHAT CONGRESS HAS WRITTEN. 

FN1  H.R. REP. NO. 143, 66TH CONG., 1ST SESS. (1919); S. REP. NO.
283, 66TH CONG., 1ST SESS. (1919). 

FN2  58 CONG. REC. 3361-3377. 

FN3  REPRESENTATIVE GARD:  "I ASSUME THAT EVERYBODY WILL AGREE WITH
THAT, THAT IF AN ALIEN IS TRIED, IS AFFORDED A FAIR TRIAL AND IS
CONVICTED, THEN HE IS A PROPER SUBJECT FOR DEPORTATION."  58 CONG. REC.
3371. 

REPRESENTATIVE ROBSION, DISCUSSING WEALTHY ALIENS:  "WE PERMITTED
THEM TO LIVE HERE AND GRANTED THEM PRACTICALLY ALL OF THE RIGHTS OF THE
AMERICAN CITIZEN.  THEY REWARD OUR HOSPITALITY BY JOINING WITH OUR
ENEMIES IN AN EFFORT TO DESTROY US.  AS THEY WERE NOT CITIZENS, THEY
WERE NOT REQUIRED TO TAKE UP ARMS IN DEFENSE OF THE COUNTRY IN WHICH
THEY HAD GROWN RICH."  58 CONG. REC. 3374. 

FN4  CITIZENSHIP IS LOST BY ANY PERSON "VOTING IN A POLITICAL
ELECTION IN A FOREIGN STATE."  8 U.S.C. SEC. 801(E).  BILLS ARE NOW
BEFORE CONGRESS TO RESTORE CITIZENSHIP TO THE APPROXIMATELY 4,000
AMERICANS WHO VOTED IN RECENT ITALIAN ELECTIONS.  SEE H.R. 6616 AND
6617, 81ST CONG., 2D SESS. (1950); H.R. REP. NO. 1469, 81ST CONG., 2D
SESS. (1950); 96 CONG. REC. APP. 117(JANUARY 9, 1950).  SEE ALSO 8
U.S.C. SECS. 801(C) AND (D), 804; BATTAGLINO V. MARSHALL, 172 F.2D
979.  AS TO DENATURALIZATION BASED ON FRAUD IN THE PROCUREMENT OF
CITIZENSHIP, SEE BAUMGARTNER V. UNITED STATES, 322 U.S. 665. 

FN5  E.G., 8 U.S.C. SEC. 156A PROVIDES FOR THE DEPORTATION OF ANY
ALIEN, WITH EXCEPTIONS NOT HERE PERTINENT, "WHO, AFTER FEBRUARY 18,
1931, SHALL BE CONVICTED FOR VIOLATION OF OR CONSPIRACY TO VIOLATE" ANY
FEDERAL OR STATE NARCOTICS LAW.  IN UNITED STATES V. BALINT, 258 U.S.
250, THIS COURT HELD THAT CONVICTION UNDER THE FEDERAL ANTI-NARCOTIC
ACT CAN BE HAD WITHOUT THE USUAL REQUIREMENT OF SCIENTER. 

EVEN CONVICTIONS UNDER LAWS RELATED TO THE NATIONAL SECURITY INVOLVE
VARYING DEGREES OF CULPABILITY.  THIS IS DEMONSTRATED BY THE REMARKS OF
THE PROSECUTING ATTORNEY TO THE DISTRICT COURT CONCERNING DR.
WILLUMEIT, THE RELATOR IN NO. 82, WHEN HIS SENTENCE WAS BEING
CONSIDERED: 

"IT HAS BEEN OUR BELIEF, AFTER HAVING GONE INTO THIS THING PRETTY
THOROUGHLY WITH HIM (THE RELATOR), THAT HE WAS MORE OR LESS CAUGHT IN
IT WITHOUT PERHAPS INTENDING TO GO AS FAR AS THE OTHERS WENT. 

     .         .         .  .         . 

"  ...  I HAVE A FEELING, YOUR HONOR, THAT DR. WILLUMEIT CAN BE
RESTORED TO DECENT CITIZENSHIP IN THIS COUNTRY.  I THINK HE HAS
SOMETHING THAT HE CAN GIVE TO AMERICA. 

   .         .         .         .         . 

"  ...  I WOULD SAY THAT THE GOVERNMENT WOULD VIEW A LENIENT SENTENCE
AS A JUST SENTENCE UNDER ALL THE CIRCUMSTANCES.  WE THINK SOMETHING CAN
BE DONE WITH THIS MAN.  WE DO NOT THINK HE IS A BAD MAN AT HEART, YOUR
HONOR.  WE THINK HE IS PROBABLY A GOOD MAN WHO GOT IN WITH BAD COMPANY
AND GOT IN WITH THIS TROUBLE. 

     .         .         .         .         . 

"I SAY TO YOUR HONOR I AM NOT HIS LAWYER.  I AM SUPPOSED TO BE HARD
WITH HIM, I GUESS, IF I BELIEVE IN IT.  BUT IN THIS CASE I DO NOT FEEL
THAT THIS MAN IS A BAD ACTOR.  I THINK THERE IS A PLACE FOR DR.
WILLUMEIT IN AMERICA IN TIME, AND HE MAY BECOME A MOST USEFUL
CITIZEN." 
..END :






KNAUFF V. SHAUGHNESSY, 338 U.S. 537 


NO. 54.  ARGUED DECEMBER 5-6, 1949.  - DECIDED JANUARY 16, 1950.  - 173
F.2D 599, AFFIRMED. 


THE ALIEN WIFE OF A CITIZEN WHO HAD SERVED HONORABLY IN THE ARMED
FORCES OF THE UNITED STATES DURING WORLD WAR II SOUGHT ADMISSION TO THE
UNITED STATES.  ON THE BASIS OF CONFIDENTIAL INFORMATION THE DISCLOSURE
OF WHICH, IN HIS JUDGMENT, WOULD ENDANGER THE PUBLIC SECURITY, THE
ATTORNEY GENERAL DENIED A HEARING, FOUND THAT HER ADMISSION WOULD BE
PREJUDICIAL TO THE INTERESTS OF THE UNITED STATES, AND ORDERED HER
EXCLUDED.  HELD:  THIS ACTION WAS AUTHORIZED BY THE ACT OF JUNE 21,
1941, 22 U.S.C. SEC. 223, AND THE PROCLAMATIONS AND REGULATIONS ISSUED
THEREUNDER, NOTWITHSTANDING THE WAR BRIDES ACT OF DECEMBER 28, 1945, 8
U.S.C. SEC. 232 ET SEQ. PP. 539-547. 

(A)  THE ADMISSION OF ALIENS TO THIS COUNTRY IS NOT A RIGHT BUT A
PRIVILEGE, WHICH IS GRANTED ONLY UPON SUCH TERMS AS THE UNITED STATES
PRESCRIBES.  P. 542. 

(B)  THE ACT OF JUNE 21, 1941, DID NOT UNCONSTITUTIONALLY DELEGATE
LEGISLATIVE POWER TO PRESCRIBE THE CONDITIONS UNDER WHICH ALIENS SHOULD
BE EXCLUDED.  PP. 542-543. 

(C)  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 TO EXCLUDE A GIVEN ALIEN.  P. 543. 

(D)  ANY PROCEDURE AUTHORIZED BY CONGRESS FOR THE EXCLUSION OF ALIENS
IS DUE PROCESS, SO FAR AS AN ALIEN DENIED ENTRY IS CONCERNED.  P. 544. 

(E)  THE REGULATIONS GOVERNING THE ENTRY OF ALIENS INTO THE UNITED
STATES DURING THE NATIONAL EMERGENCY PROCLAIMED MAY 27, 1941, WHICH
WERE PRESCRIBED BY THE SECRETARY OF STATE AND THE ATTORNEY GENERAL
PURSUANT TO PRESIDENTIAL PROCLAMATION 2523, WERE "REASONABLE" WITHIN
THE MEANING OF THE ACT OF JUNE 21, 1941.  P. 544. 

(F)  PRESIDENTIAL PROCLAMATION 2523 AUTHORIZED THE ATTORNEY GENERAL
AS WELL AS THE SECRETARY OF STATE TO ORDER THE EXCLUSION OF ALIENS.  P.
544. 

(G)  PETITIONER, AN ALIEN, HAD NO VESTED RIGHT OF ENTRY WHICH COULD
BE THE SUBJECT OF A PROHIBITION AGAINST RETROACTIVE OPERATION OF
REGULATIONS AFFECTING HER STATUS.  P. 544. 

(H)  THE NATIONAL EMERGENCY PROCLAIMED MAY 27, 1941, HAS NOT BEEN
TERMINATED; A STATE OF WAR STILL EXISTS; AND THE ACT OF JUNE 21, 1941,
AND THE PROCLAMATIONS AND REGULATIONS THEREUNDER ARE STILL IN FORCE. 
PP. 545-546. 

(I)  A DIFFERENT RESULT IS NOT REQUIRED BY THE WAR BRIDES ACT, WHICH
WAIVES SOME OF THE USUAL REQUIREMENTS FOR THE ADMISSION OF CERTAIN
ALIEN SPOUSES ONLY IF THEY ARE "OTHERWISE ADMISSIBLE UNDER THE
IMMIGRATION LAWS."  PP. 546-547. 

UNITED STATES EX REL. KNAUFF V. SHAUGHNESSY, ACTING DISTRICT DIRECTOR
OF IMMIGRATION AND NATURALIZATION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE DISTRICT COURT DISMISSED A WRIT OF HABEAS CORPUS OBTAINED TO TEST
THE RIGHT OF THE ATTORNEY GENERAL TO EXCLUDE FROM THE UNITED STATES,
WITHOUT A HEARING, THE ALIEN WIFE OF A CITIZEN WHO HAD SERVED HONORABLY
IN THE ARMED FORCES OF THE UNITED STATES DURING WORLD WAR II.  THE
COURT OF APPEALS AFFIRMED.  173 F.2D 599.  THIS COURT GRANTED
CERTIORARI.  336 U.S. 966.  AFFIRMED, P. 547. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

MAY THE UNITED STATES EXCLUDE WITHOUT HEARING, SOLELY UPON A FINDING
BY THE ATTORNEY GENERAL THAT HER ADMISSION WOULD BE PREJUDICIAL TO THE
INTERESTS OF THE UNITED STATES, THE ALIEN WIFE OF A CITIZEN WHO HAD
SERVED HONORABLY IN THE ARMED FORCES OF THE UNITED STATES DURING WORLD
WAR II? THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK HELD
THAT IT COULD, AND THE COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMED.  173 F.2D 599.  WE GRANTED CERTIORARI TO EXAMINE THE QUESTION
ESPECIALLY IN THE LIGHT OF THE WAR BRIDES ACT OF DECEMBER 28, 1945. 
336 U.S. 966. 

PETITIONER WAS BORN IN GERMANY IN 1915.  SHE LEFT GERMANY AND WENT TO
CZECHOSLOVAKIA DURING THE HITLER REGIME.  THERE SHE WAS MARRIED AND
DIVORCED.  SHE WENT TO ENGLAND IN 1939 AS A REFUGEE.  THEREAFTER SHE
SERVED WITH THE ROYAL AIR FORCE EFFICIENTLY AND HONORABLY FROM JANUARY
1, 1943, UNTIL MAY 30, 1946.  SHE THEN SECURED CIVILIAN EMPLOYMENT WITH
THE WAR DEPARTMENT OF THE UNITED STATES IN GERMANY.  HER WORK WAS RATED
"VERY GOOD" AND "EXCELLENT."  ON FEBRUARY 28, 1948, WITH THE PERMISSION
OF THE COMMANDING GENERAL AT FRANKFURT, GERMANY, SHE MARRIED KURT W.
KNAUFF, A NATURALIZED CITIZEN OF THE UNITED STATES.  HE IS AN HONORABLY
DISCHARGED UNITED STATES ARMY VETERAN OF WORLD WAR II.  HE IS, AS HE
WAS AT THE TIME OF HIS MARRIAGE, A CIVILIAN EMPLOYEE OF THE UNITED
STATES ARMY AT FRANKFURT, GERMANY. 

ON AUGUST 14, 1948, PETITIONER SOUGHT TO ENTER THE UNITED STATES TO
BE NATURALIZED.  ON THAT DAY SHE WAS TEMPORARILY EXCLUDED FROM THE
UNITED STATES AND DETAINED AT ELLIS ISLAND.  ON OCTOBER 6, 1948, THE
ASSISTANT COMMISSIONER OF IMMIGRATION AND NATURALIZATION RECOMMENDED
THAT SHE BE PERMANENTLY EXCLUDED WITHOUT A HEARING ON THE GROUND THAT
HER ADMISSION WOULD BE PREJUDICIAL TO THE INTERESTS OF THE UNITED
STATES.  ON THE SAME DAY THE ATTORNEY GENERAL ADOPTED THIS
RECOMMENDATION AND ENTERED A FINAL ORDER OF EXCLUSION.  TO TEST THE
RIGHT OF THE ATTORNEY GENERAL TO EXCLUDE HER WITHOUT A HEARING FOR
SECURITY REASONS, HABEAS CORPUS PROCEEDINGS WERE INSTITUTED IN THE
SOUTHERN DISTRICT OF NEW YORK, BASED PRIMARILY ON PROVISIONS OF THE WAR
BRIDES ACT.  THE DISTRICT COURT DISMISSED THE WRIT, AND THE COURT OF
APPEALS AFFIRMED. 

THE AUTHORITY OF THE ATTORNEY GENERAL TO ORDER THE EXCLUSION OF
ALIENS WITHOUT A HEARING FLOWS FROM THE ACT OF JUNE 21, 1941, AMENDING
SEC. 1 OF THE ACT OF MAY 22, 1918(55 STAT. 252, 22 U.S.C. SEC. 223). 
FN1  BY THE 1941 AMENDMENT IT WAS PROVIDED THAT THE PRESIDENT MIGHT,
UPON FINDING THAT THE INTERESTS OF THE UNITED STATES REQUIRED IT,
IMPOSE ADDITIONAL RESTRICTIONS AND PROHIBITIONS ON THE ENTRY INTO AND
DEPARTURE OF PERSONS FROM THE UNITED STATES DURING THE NATIONAL
EMERGENCY PROCLAIMED MAY 27, 1941.  PURSUANT TO THIS ACT OF CONGRESS
THE PRESIDENT ON NOVEMBER 14, 1941, ISSUED PROCLAMATION 2523(3 CFR,
1943 CUM. SUPP., 270-272).  THIS PROCLAMATION RECITED THAT THE
INTERESTS OF THE UNITED STATES REQUIRED THE IMPOSITION OF ADDITIONAL
RESTRICTIONS UPON THE ENTRY INTO AND DEPARTURE OF PERSONS FROM THE
COUNTRY AND AUTHORIZED THE PROMULGATION OF REGULATIONS JOINTLY BY THE
SECRETARY OF STATE AND THE ATTORNEY GENERAL.  IT WAS ALSO PROVIDED THAT
NO ALIEN SHOULD BE PERMITTED TO ENTER THE UNITED STATES IF IT WERE
FOUND THAT SUCH ENTRY WOULD BE PREJUDICIAL TO THE INTERESTS OF THE
UNITED STATES.  FN2 

PURSUANT TO THE AUTHORITY OF THIS PROCLAMATION THE SECRETARY OF STATE
AND THE ATTORNEY GENERAL ISSUED REGULATIONS GOVERNING THE ENTRY INTO
AND DEPARTURE OF PERSONS FROM THE UNITED STATES DURING THE NATIONAL
EMERGENCY.  SUBPARAGRAPHS (A) TO (K) OF SEC. 175.53 OF THESE
REGULATIONS SPECIFIED THE CLASSES OF ALIENS WHOSE ENTRY INTO THE UNITED
STATES WAS DEEMED PREJUDICIAL TO THE PUBLIC INTEREST.  SUBPARAGRAPH (B)
OF SEC. 175.57 PROVIDED THAT THE ATTORNEY GENERAL MIGHT DENY AN ALIEN A
HEARING BEFORE A BOARD OF INQUIRY IN SPECIAL CASES WHERE HE DETERMINED
THAT THE ALIEN WAS EXCLUDABLE UNDER THE REGULATIONS ON THE BASIS OF
INFORMATION OF A CONFIDENTIAL NATURE, THE DISCLOSURE OF WHICH WOULD BE
PREJUDICIAL TO THE PUBLIC INTEREST.  FN3 

IT WAS UNDER THIS REGULATION SEC. 175.57(B) THAT PETITIONER WAS
EXCLUDED BY THE ATTORNEY GENERAL AND DENIED A HEARING.  WE ARE ASKED TO
PASS UPON THE VALIDITY OF THIS ACTION. 

AT THE OUTSET WE WISH TO POINT OUT THAT AN ALIEN WHO SEEKS ADMISSION
TO THIS COUNTRY MAY NOT DO SO UNDER ANY CLAIM OF RIGHT.  ADMISSION OF
ALIENS TO THE UNITED STATES IS A PRIVILEGE GRANTED BY THE SOVEREIGN
UNITED STATES GOVERNMENT.  SUCH PRIVILEGE IS GRANTED TO AN ALIEN ONLY
UPON SUCH TERMS AS THE UNITED STATES SHALL PRESCRIBE.  IT MUST BE
EXERCISED IN ACCORDANCE WITH THE PROCEDURE WHICH THE UNITED STATES
PROVIDES.  NISHIMURA EKIU V. UNITED STATES, 142 U.S. 651, 659; FONG YUE
TING V. UNITED STATES, 149 U.S. 698, 711. 

PETITIONER CONTENDS THAT THE 1941 ACT AND THE REGULATIONS THEREUNDER
ARE VOID TO THE EXTENT THAT THEY CONTAIN UNCONSTITUTIONAL DELEGATIONS
OF LEGISLATIVE POWER.  BUT THERE IS NO QUESTION OF INAPPROPRIATE
DELEGATION OF LEGISLATIVE POWER INVOLVED HERE.  THE EXCLUSION OF ALIENS
IS A FUNDAMENTAL ACT OF SOVEREIGNTY.  THE RIGHT TO DO SO STEMS NOT
ALONE FROM LEGISLATIVE POWER BUT IS INHERENT IN THE EXECUTIVE POWER TO
CONTROL THE FOREIGN AFFAIRS OF THE NATION.  UNITED STATES V. CURTISS
WRIGHT EXPORT CORP., 299 U.S. 304; FONG YUE TING V. UNITED STATES, 149
U.S. 698, 713.  WHEN CONGRESS PRESCRIBES A PROCEDURE CONCERNING THE
ADMISSIBILITY OF ALIENS, IT IS NOT DEALING ALONE WITH A LEGISLATIVE
POWER.  IT IS IMPLEMENTING AN INHERENT EXECUTIVE POWER. 

THUS THE DECISION TO ADMIT OR TO EXCLUDE AN ALIEN MAY BE LAWFULLY
PLACED WITH THE PRESIDENT, WHO MAY IN TURN DELEGATE THE CARRYING OUT OF
THIS FUNCTION TO A RESPONSIBLE EXECUTIVE OFFICER OF THE SOVEREIGN, SUCH
AS THE ATTORNEY GENERAL.  THE ACTION OF THE EXECUTIVE OFFICER UNDER
SUCH AUTHORITY IS FINAL AND CONCLUSIVE.  WHATEVER THE RULE MAY BE
CONCERNING DEPORTATION OF PERSONS WHO HAVE GAINED ENTRY INTO THE UNITED
STATES, 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 TO EXCLUDE A GIVEN ALIEN.  NISHIMURA EKIU V. UNITED
STATES, 142 U.S. 651, 659-660; FONG YUE TING V. UNITED STATES, 149 U.S.
698, 713-714; LUDECKE V. WATKINS, 335 U.S. 160.  CF. YAMATAYA V.
FISHER, 189 U.S. 86, 101.  NORMALLY CONGRESS SUPPLIES THE CONDITIONS OF
THE PRIVILEGE OF ENTRY INTO THE UNITED STATES.  BUT BECAUSE THE POWER
OF EXCLUSION OF ALIENS IS ALSO INHERENT IN THE EXECUTIVE DEPARTMENT OF
THE SOVEREIGN, CONGRESS MAY IN BROAD TERMS AUTHORIZE THE EXECUTIVE TO
EXERCISE THE POWER, E.G., AS WAS DONE HERE, FOR THE BEST INTERESTS OF
THE COUNTRY DURING A TIME OF NATIONAL EMERGENCY.  EXECUTIVE OFFICERS
MAY BE ENTRUSTED WITH THE DUTY OF SPECIFYING THE PROCEDURES FOR
CARRYING OUT THE CONGRESSIONAL INTENT.  WHAT WAS SAID IN LICHTER V.
UNITED STATES, 334 U.S. 742, 785, IS EQUALLY APPROPRIATE HERE: 

"IT IS NOT NECESSARY THAT CONGRESS SUPPLY ADMINISTRATIVE OFFICIALS
WITH A SPECIFIC FORMULA FOR THEIR GUIDANCE IN A FIELD WHERE FLEXIBILITY
AND THE ADAPTATION OF THE CONGRESSIONAL POLICY TO INFINITELY VARIABLE
CONDITIONS CONSTITUTE THE ESSENCE OF THE PROGRAM.  ...  STANDARDS
PRESCRIBED BY CONGRESS ARE TO BE READ IN THE LIGHT OF THE CONDITIONS TO
WHICH THEY ARE TO BE APPLIED.  'THEY DERIVE MUCH MEANINGFUL CONTENT
FROM THE PURPOSE OF THE ACT, ITS FACTUAL BACKGROUND AND THE STATUTORY
CONTEXT IN WHICH THEY APPEAR.'"  WHATEVER THE PROCEDURE AUTHORIZED BY
CONGRESS IS, IT IS DUE PROCESS AS FAR AS AN ALIEN DENIED ENTRY IS
CONCERNED.  NISHIMURA EKIU V. UNITED STATES, SUPRA; LUDECKE V. WATKINS,
SUPRA. 

IN THE PARTICULAR CIRCUMSTANCES OF THE INSTANT CASE THE ATTORNEY
GENERAL, EXERCISING THE DISCRETION ENTRUSTED TO HIM BY CONGRESS AND THE
PRESIDENT, CONCLUDED UPON THE BASIS OF CONFIDENTIAL INFORMATION THAT
THE PUBLIC INTEREST REQUIRED THAT PETITIONER BE DENIED THE PRIVILEGE OF
ENTRY INTO THE UNITED STATES.  HE DENIED HER A HEARING ON THE MATTER
BECAUSE, IN HIS JUDGMENT, THE DISCLOSURE OF THE INFORMATION ON WHICH HE
BASED THAT OPINION WOULD ITSELF ENDANGER THE PUBLIC SECURITY. 

WE FIND NO SUBSTANTIAL MERIT TO PETITIONER'S CONTENTION THAT THE
REGULATIONS WERE NOT "REASONABLE" AS THEY WERE REQUIRED TO BE BY THE
1941 ACT.  WE THINK THEM REASONABLE IN THE CIRCUMSTANCES OF THE PERIOD
FOR WHICH THEY WERE AUTHORIZED, NAMELY, THE NATIONAL EMERGENCY OF WORLD
WAR II.  NOR CAN WE AGREE WITH PETITIONER'S ASSERTION THAT PROCLAMATION
2523(SEE NOTE 2, SUPRA) AUTHORIZED ONLY THE SECRETARY OF STATE, AND NOT
THE ATTORNEY GENERAL, TO ORDER THE EXCLUSION OF ALIENS.  SEE
PRESIDENTIAL PROCLAMATION 2850 OF AUGUST 17, 1949(14 FED. REG. 5173),
AMENDING AND CLARIFYING PROCLAMATION 2523.  WE REITERATE THAT WE ARE
DEALING HERE WITH A MATTER OF PRIVILEGE.  PETITIONER HAD NO VESTED
RIGHT OF ENTRY WHICH COULD BE THE SUBJECT OF A PROHIBITION AGAINST
RETROACTIVE OPERATION OF REGULATIONS AFFECTING HER STATUS. 

IT IS NOT DISPUTED THAT THE ATTORNEY GENERAL'S ACTION WAS PURSUANT TO
THE 8 CFR REGULATIONS HERETOFORE DISCUSSED N4.  HOWEVER, 22 U.S.C. SEC.
223,  FN5  AUTHORIZES THESE SPECIAL RESTRICTIONS ON THE ENTRY OF ALIENS
ONLY WHEN THE UNITED STATES IS AT WAR OR DURING THE EXISTENCE OF THE
NATIONAL EMERGENCY PROCLAIMED MAY 27, 1941.  FN6  FOR ORDINARY TIMES
CONGRESS HAS PROVIDED ALIENS WITH A HEARING.  8 U.S.C. SECS. 152, 153. 
AND THE CONTENTION OF PETITIONER IS THAT SHE IS ENTITLED TO THE
STATUTORY HEARING BECAUSE FOR PURPOSES OF THE WAR BRIDES ACT, WITHIN
WHICH SHE COMES, THE WAR TERMINATED WHEN THE PRESIDENT PROCLAIMED THE
CESSATION OF HOSTILITIES.  FN7  SHE CONTENDS THAT THE WAR BRIDES ACT,
APPLICABLE PORTIONS OF WHICH ARE SET OUT IN THE MARGIN,  FN8 DISCLOSES
A CONGRESSIONAL INTENT THAT SPECIAL RESTRICTIONS ON THE ENTRY OF ALIENS
SHOULD CEASE TO APPLY TO WAR BRIDES UPON THE CESSATION OF HOSTILITIES. 

THE WAR BRIDES ACT PROVIDES THAT WORLD WAR II IS THE PERIOD FROM
DECEMBER 7, 1941, UNTIL THE PROCLAIMED TERMINATION OF HOSTILITIES. 
THIS HAS NOTHING TO DO WITH THE PERIOD FOR WHICH THE REGULATIONS HERE
ACTED UNDER WERE AUTHORIZED.  THE BEGINNING AND END OF THE WAR ARE
DEFINED BY THE WAR BRIDES ACT, WE ASSUME, FOR THE PURPOSE OF
ASCERTAINING THE PERIOD WITHIN WHICH CITIZENS MUST HAVE SERVED IN THE
ARMED FORCES IN ORDER FOR THEIR SPOUSES AND CHILDREN TO BE ENTITLED TO
THE BENEFITS OF THE ACT.  THE SPECIAL PROCEDURE FOLLOWED IN THIS CASE
WAS AUTHORIZED NOT ONLY DURING THE PERIOD OF ACTUAL HOSTILITIES BUT
DURING THE ENTIRE WAR AND THE NATIONAL EMERGENCY PROCLAIMED MAY 27,
1941.  THE NATIONAL EMERGENCY HAS NEVER BEEN TERMINATED.  INDEED, A
STATE OF WAR STILL EXISTS.  SEE WOODS V. MILLER CO., 333 U.S. 138, N.
3.  THUS, THE AUTHORITY UPON WHICH THE ATTORNEY GENERAL ACTED REMAINS
IN FORCE.  THE ACT OF JUNE 21, 1941, AND THE PRESIDENT'S PROCLAMATIONS
AND THE REGULATIONS THEREUNDER ARE STILL A PART OF THE IMMIGRATION
LAWS. 

THE WAR BRIDES ACT DOES NOT RELIEVE PETITIONER OF HER ALIEN STATUS. 
INDEED, SHE SOUGHT ADMISSION IN ORDER TO BE NATURALIZED AND THUS TO
OVERCOME HER ALIEN STATUS.  THE ACT RELIEVED HER OF CERTAIN PHYSICAL,
MENTAL, AND DOCUMENTARY REQUIREMENTS AND OF THE QUOTA PROVISIONS OF THE
IMMIGRATION LAWS.  BUT SHE MUST, AS THE ACT REQUIRES, STILL BE
"OTHERWISE ADMISSIBLE UNDER THE IMMIGRATION LAWS."  IN OTHER WORDS,
ASIDE FROM THE ENUMERATED RELAXATIONS OF THE IMMIGRATION LAWS SHE MUST
BE TREATED AS ANY OTHER ALIEN SEEKING ADMISSION.  UNDER THE IMMIGRATION
LAWS AND REGULATIONS APPLICABLE TO ALL ALIENS SEEKING ENTRY INTO THE
UNITED STATES DURING THE NATIONAL EMERGENCY, SHE WAS EXCLUDED BY THE
ATTORNEY GENERAL WITHOUT A HEARING.  IN SUCH A CASE WE HAVE NO
AUTHORITY TO RETRY THE DETERMINATION OF THE ATTORNEY GENERAL.  LUDECKE
V. WATKINS, 335 U.S. 160, 171-172. 

THERE IS NOTHING IN THE WAR BRIDES ACT OR ITS LEGISLATIVE HISTORY
FN9  TO INDICATE THAT IT WAS THE PURPOSE OF CONGRESS, BY PARTIALLY
SUSPENDING COMPLIANCE WITH CERTAIN REQUIREMENTS AND THE QUOTA
PROVISIONS OF THE IMMIGRATION LAWS, TO RELAX THE SECURITY PROVISIONS OF
THE IMMIGRATION LAWS.  THERE IS NO INDICATION THAT CONGRESS INTENDED TO
PERMIT MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES TO MARRY AND BRING
INTO THE UNITED STATES ALIENS THAT THE PRESIDENT, ACTING THROUGH THE
ATTORNEY GENERAL IN THE PERFORMANCE OF HIS SWORN DUTY, FOUND SHOULD BE
DENIED ENTRY FOR SECURITY REASONS.  AS ALL OTHER ALIENS, PETITIONER HAD
TO STAND THE TEST OF SECURITY.  THIS SHE FAILED TO MEET.  WE FIND NO
LEGAL DEFECT IN THE MANNER OF PETITIONER'S EXCLUSION, AND THE JUDGMENT
IS AFFIRMED.    FN1  "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  ...  " 

FN2  "(3)  AFTER THE EFFECTIVE DATE OF THE RULES AND REGULATIONS
HEREINAFTER AUTHORIZED, NO ALIEN SHALL ENTER OR ATTEMPT TO ENTER THE
UNITED STATES UNLESS HE IS IN POSSESSION OF A VALID UNEXPIRED PERMIT TO
ENTER ISSUED BY THE SECRETARY OF STATE, OR BY AN APPROPRIATE OFFICER
DESIGNATED BY THE SECRETARY OF STATE, OR IS EXEMPTED FROM OBTAINING A
PERMIT TO ENTER IN ACCORDANCE WITH THE RULES AND REGULATIONS WHICH THE
SECRETARY OF STATE, WITH THE CONCURRENCE OF THE ATTORNEY GENERAL, IS
HEREBY AUTHORIZED TO PRESCRIBE IN EXECUTION OF THESE RULES,
REGULATIONS, AND ORDERS. 

"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."  3
CFR, 1943 CUM. SUPP., 271. 

FN3  "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 SEC.
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 SEC. 175.53 ON THE BASIS OF INFORMATION OF A
CONFIDENTIAL NATURE, THE DISCLOSURE OF WHICH WOULD BE PREJUDICIAL TO
THE PUBLIC INTEREST."  8 CFR, 1945 SUPP., SEC. 175.57(B). 

FN4  SEE NOTE 3, SUPRA. 

FN5  SEE NOTE 1, SUPRA. 

FN6  AND AT CERTAIN OTHER TIMES NOT MATERIAL HERE. 

FN7  PROCLAMATION 2714 OF DECEMBER 31, 1946, 3 CFR, 1946 SUPP., 77. 

FN8  "THAT 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  ... 

"SEC. 2.  REGARDLESS OF SECTION 9 OF THE IMMIGRATION ACT OF 1924, ANY
ALIEN ADMITTED UNDER SECTION 1 OF THIS ACT SHALL BE DEEMED TO BE A
NONQUOTA IMMIGRANT AS DEFINED IN SECTION 4(A) OF THE IMMIGRATION ACT OF
1924. 

 .         .         .         .         . 

"SEC. 5.  FOR THE PURPOSE OF THIS ACT, THE SECOND WORLD WAR SHALL BE
DEEMED TO HAVE COMMENCED ON DECEMBER 7, 1941, AND TO HAVE CEASED UPON
THE TERMINATION OF HOSTILITIES AS DECLARED BY THE PRESIDENT OR BY A
JOINT RESOLUTION OF CONGRESS."  59 STAT. 659, 8 U.S.C. SECS. 232-236. 

FN9  SEE H.R. REP. NO. 1320, 79TH CONG., 1ST SESS. (1945); S. REP.
NO. 860, 79TH CONG., 1ST SESS. (1945); 91 CONG. REC. 11738,
12342(1945). 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

IF THE ESSENCE OF STATUTORY CONSTRUCTION IS TO FIND THE THOUGHT
BENEATH THE WORDS, THE VIEWS EXPRESSED BY MR. JUSTICE JACKSON, IN WHICH
I FULLY CONCUR, ENFORCE THE PURPOSE OF CONGRESS.  THE CONTRARY
CONCLUSION SUBSTANTIALLY FRUSTRATES IT. 

SEVENTY YEARS AGO BEGAN THE POLICY OF EXCLUDING MENTALLY DEFECTIVE
ALIENS FROM ADMISSION INTO THE UNITED STATES.  THIRTY YEARS AGO IT
BECAME OUR SETTLED POLICY TO ADMIT EVEN THE MOST DESIRABLE ALIENS ONLY
IN ACCORDANCE WITH THE QUOTA SYSTEM.  BY THE SO-CALLED WAR BRIDES ACT
CONGRESS MADE INROADS UPON BOTH THESE DEEPLY-ROOTED POLICIES.  (ACT OF
DECEMBER 28, 1945, 59 STAT. 659, 8 U.S.C. SEC. 232 ET SEQ.) IT LIFTED
THE BAR AGAINST THE EXCLUSION EVEN OF "PHYSICALLY AND MENTALLY
DEFECTIVE ALIENS."  IT DID THIS IN FAVOR OF "ALIEN SPOUSES AND ALIEN
MINOR CHILDREN OF CITIZEN MEMBERS WHO ARE SERVING OR HAVE SERVED
HONORABLY IN THE ARMED FORCES OF THE UNITED STATES DURING WORLD WAR
II."  H.R. REP. NO. 1320 AND S. REP. NO. 860, 79TH CONG., 1ST SESS.
(1945). 

THIS WAS A BOUNTY AFFORDED BY CONGRESS NOT TO THE ALIEN WHO HAD
BECOME THE WIFE OF AN AMERICAN BUT TO THE CITIZEN WHO HAD HONORABLY
SERVED HIS COUNTRY.  CONGRESS GAVE THIS BOUNTY EVEN THOUGH A PHYSICALLY
OR MENTALLY DEFECTIVE PERSON MIGHT THEREBY BE ADDED TO THE POPULATION
OF THE UNITED STATES.  YET IT IS SUGGESTED THAT THE DEEPEST TIE THAT AN
AMERICAN SOLDIER COULD FORM MAY BE SECRETLY SEVERED ON THE MERE SAY-SO
OF AN OFFICIAL, HOWEVER WELL-INTENTIONED.  ALTHOUGH FIVE MINUTES OF
CROSS-EXAMINATION COULD ENABLE THE SOLDIER-HUSBAND TO DISSIPATE
SEEMINGLY CONVINCING INFORMATION AFFECTING THE SECURITY DANGER OF HIS
WIFE, THAT OPPORTUNITY NEED NOT BE ACCORDED.  AND ALL THIS, BECAUSE OF
THE LITERAL READING OF THE PROVISION OF THE WAR BRIDES ACT THAT THE
ALIEN SPOUSE, THOUGH PHYSICALLY AND MENTALLY DEFECTIVE, IS TO BE
ALLOWED TO JOIN HER CITIZEN HUSBAND "IF OTHERWISE ADMISSIBLE UNDER THE
IMMIGRATION LAWS."  UPON THAT PHRASE IS RESTED THE WHOLE STRUCTURE OF
EXECUTIVE REGULATION BASED ON SEC. 1 OF THE ACT OF MAY 22, 1918, 40
STAT. 559, AS AMENDED BY THE ACT OF JUNE 21, 1941, 55 STAT. 252, 22
U.S.C. SEC. 223, REGARDING THE SUMMARY EXCLUSION, WITHOUT OPPORTUNITY
FOR A HEARING, OF AN ALIEN WHOSE ENTRY THE ATTORNEY GENERAL FINDS
INIMICAL TO THE PUBLIC INTEREST* . 

*THE ATTORNEY GENERAL IS TO ACT ON INFORMATION THAT SATISFIES HIM;
NOT ONLY IS THERE NO OPPORTUNITY FOR A HEARING, BUT THE ATTORNEY
GENERAL CAN LOCK IN HIS OWN BOSOM THE EVIDENCE THAT DOES SATISFY HIM. 
8 C.F.R. SECS. 175.53, 175.57(1949). 

THIS IS NOT THE WAY TO READ SUCH LEGISLATION.  IT IS TRUE ALSO OF
ACTS OF CONGRESS THAT "THE LETTER KILLETH."  LEGISLATION SHOULD NOT BE
READ IN SUCH A DECIMATING SPIRIT UNLESS THE LETTER OF CONGRESS IS
INEXORABLE.  WE ARE REMINDED FROM TIME TO TIME THAT IN ENACTING
LEGISLATION CONGRESS IS NOT ENGAGED IN A SCIENTIFIC PROCESS WHICH TAKES
ACCOUNT OF EVERY CONTINGENCY.  ITS LAWS ARE NOT TO BE READ AS THOUGH
EVERY I HAS TO BE DOTTED AND EVERY T CROSSED.  THE WAR BRIDES ACT IS
LEGISLATION DERIVED FROM THE DOMINANT REGARD WHICH AMERICAN SOCIETY
PLACES UPON THE FAMILY.  IT IS NOT TO BE ASSUMED THAT CONGRESS GAVE
WITH A BOUNTIFUL HAND BUT ALLOWED ITS BOUNTY ARBITRARILY TO BE TAKEN
AWAY.  IN FRAMING AND PASSING THE WAR BRIDES ACT, CONGRESS WAS
PREOCCUPIED WITH OPENING THE DOOR TO WIVES ACQUIRED BY AMERICAN
HUSBANDS DURING SERVICE IN FOREIGN LANDS.  IT OPENED THE DOOR ON
ESSENTIALS - WIVES OF AMERICAN SOLDIERS AND PERCHANCE MOTHERS OF THEIR
CHILDREN WERE NOT TO RUN THE GAUNTLET OF ADMINISTRATIVE DISCRETION IN
DETERMINING THEIR PHYSICAL AND MENTAL CONDITION, AND WERE TO BE DEEMED
NONQUOTA IMMIGRANTS.  CONGRESS OUGHT NOT TO BE MADE TO APPEAR TO
REQUIRE THAT THEY INCUR THE GREATER HAZARDS OF AN INFORMER'S TALE
WITHOUT ANY OPPORTUNITY FOR ITS REFUTATION, ESPECIALLY SINCE
CONSIDERATIONS OF NATIONAL SECURITY, INSOFAR AS THEY ARE PERTINENT, CAN
BE AMPLY PROTECTED BY A HEARING IN CAMERA.  COMPARE RULE 46 OF THE
RULES OF PRACTICE FOR ADMIRALTY COURTS DURING WORLD WAR II, 316 U.S.
717; 328 U.S. 882, AND SEE HAYDOCK, SOME EVIDENTIARY PROBLEMS POSED BY
ATOMIC ENERGY SECURITY REQUIREMENTS, 61 HARV. L. REV. 468, 482
83(1948).  AN ALIEN'S OPPORTUNITY OF ENTRY INTO THE UNITED STATES IS OF
COURSE A PRIVILEGE WHICH CONGRESS MAY GRANT OR WITHHOLD.  BUT THE CRUX
OF THE PROBLEM BEFORE US IS WHETHER CONGRESS, HAVING EXTENDED THE
PRIVILEGE FOR THE BENEFIT NOT OF THE ALIEN BUT OF HER AMERICAN HUSBAND,
LEFT WIDE OPEN THE OPPORTUNITY RUTHLESSLY TO TAKE AWAY WHAT IT GAVE. 

A REGULATION PERMITTING SUCH EXCLUSION BY THE ATTORNEY GENERAL'S FIAT
- IN THE NATURE OF THINGS THAT HIGH FUNCTIONARY MUST LARGELY ACT ON
DOSSIERS PREPARED BY OTHERS - IN THE CASE OF AN ALIEN CLAIMING ENTRY ON
HIS OWN ACCOUNT IS ONE THING.  TO CONSTRUE SUCH REGULATION TO BE
AUTHORIZED AND TO APPLY IN THE CASE OF THE WIFE OF AN HONORABLY
DISCHARGED AMERICAN SOLDIER IS QUITE ANOTHER THING.  HAD CONGRESS
SPOKEN EXPLICITLY WE WOULD HAVE TO BOW TO IT.  SUCH A SUBSTANTIAL
CONTRADICTION OF THE CONGRESSIONAL BENEFICENCE WHICH IS AT THE HEART OF
THE WAR BRIDES ACT OUGHT NOT TO BE ATTRIBUTED TO CONGRESS BY A PROCESS
OF ELABORATE IMPLICATION.  ESPECIALLY IS THIS TO BE AVOIDED WHEN TO DO
SO CHARGES CONGRESS WITH AN OBVIOUSLY HARSH PURPOSE.  DUE REGARD FOR
THE WHOLE BODY OF IMMIGRATION LAWS AND POLICIES MAKES IT SINGULARLY
APPROPRIATE IN CONSTRUING THE WAR BRIDES ACT TO BE HEEDFUL OF THE
ADMONITION THAT "THE LETTER KILLETH." 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE BLACK AND MR. JUSTICE
FRANKFURTER JOIN, DISSENTING. 

I DO NOT QUESTION THE CONSTITUTIONAL POWER OF CONGRESS TO AUTHORIZE
IMMIGRATION AUTHORITIES TO TURN BACK FROM OUR GATES ANY ALIEN OR CLASS
OF ALIENS.  BUT I DO NOT FIND THAT CONGRESS HAS AUTHORIZED AN ABRUPT
AND BRUTAL EXCLUSION OF THE WIFE OF AN AMERICAN CITIZEN WITHOUT A
HEARING. 

CONGRESS HELD OUT A PROMISE OF LIBERALIZED ADMISSION TO ALIEN BRIDES,
TAKEN UNTO THEMSELVES BY MEN SERVING IN OR HONORABLY DISCHARGED FROM
OUR ARMED SERVICES ABROAD, AS THE ACT, SET FORTH IN THE COURT'S
OPINION, INDICATES.  THE PETITIONING HUSBAND IS HONORABLY DISCHARGED
AND REMAINED IN GERMANY AS A CIVILIAN EMPLOYEE.  OUR MILITARY
AUTHORITIES ABROAD REQUIRED THEIR PERMISSION BEFORE MARRIAGE.  THE ARMY
IN GERMANY IS NOT WITHOUT A VIGILANT AND SECURITY-CONSCIOUS
INTELLIGENCE SERVICE.  THIS WOMAN WAS EMPLOYED BY OUR EUROPEAN COMMAND
AND HER RECORD IS NOT ONLY WITHOUT BLEMISH, BUT IS HIGHLY PRAISED BY
HER SUPERIORS.  THE MARRIAGE OF THIS ALIEN WOMAN TO THIS VETERAN WAS
APPROVED BY THE COMMANDING GENERAL AT FRANKFURT-ON-MAIN. 

NOW THIS AMERICAN CITIZEN IS TOLD HE CANNOT BRING HIS WIFE TO THE
UNITED STATES, BUT HE WILL NOT BE TOLD WHY.  HE MUST ABANDON HIS BRIDE
TO LIVE IN HIS OWN COUNTRY OR FORSAKE HIS COUNTRY TO LIVE WITH HIS
BRIDE. 

SO HE WENT TO COURT AND SOUGHT A WRIT OF HABEAS CORPUS, WHICH WE
NEVER TIRE OF CITING TO EUROPE AS THE UNANSWERABLE EVIDENCE THAT OUR
FREE COUNTRY PERMITS NO ARBITRARY OFFICIAL DETENTION.  AND THE
GOVERNMENT TELLS THE COURT THAT NOT EVEN A COURT CAN FIND OUT WHY THE
GIRL IS EXCLUDED.  BUT IT SAYS WE MUST FIND THAT CONGRESS AUTHORIZED
THIS TREATMENT OF WAR BRIDES AND, EVEN IF WE CANNOT GET ANY REASONS FOR
IT, WE MUST SAY IT IS LEGAL; SECURITY REQUIRES IT. 

SECURITY IS LIKE LIBERTY IN THAT MANY ARE THE CRIMES COMMITTED IN ITS
NAME.  THE MENACE TO THE SECURITY OF THIS COUNTRY, BE IT GREAT AS IT
MAY, FROM THIS GIRL'S ADMISSION IS AS NOTHING COMPARED TO THE MENACE TO
FREE INSTITUTIONS INHERENT IN PROCEDURES OF THIS PATTERN.  IN THE NAME
OF SECURITY THE POLICE STATE JUSTIFIES ITS ARBITRARY OPPRESSIONS ON
EVIDENCE THAT IS SECRET, BECAUSE SECURITY MIGHT BE PREJUDICED IF IT
WERE BROUGHT TO LIGHT IN HEARINGS.  THE PLEA THAT EVIDENCE OF GUILT
MUST BE SECRET IS ABHORRENT TO FREE MEN, BECAUSE IT PROVIDES A CLOAK
FOR THE MALEVOLENT, THE MISINFORMED, THE MEDDLESOME, AND THE CORRUPT TO
PLAY THE ROLE OF INFORMER UNDETECTED AND UNCORRECTED.  CF. IN RE
OLIVER, 333 U.S. 257, 268. 

I AM SURE THE OFFICIALS HERE HAVE ACTED FROM A SENSE OF DUTY, WITH
FULL BELIEF IN THEIR LAWFUL POWER, AND NO DOUBT UPON INFORMATION WHICH,
IF IT STOOD THE TEST OF TRIAL, WOULD JUSTIFY THE ORDER OF EXCLUSION. 
BUT NOT EVEN THEY KNOW WHETHER IT WOULD STAND THIS TEST.  AND ANYWAY,
AS I HAVE SAID BEFORE, PERSONAL CONFIDENCE IN THE OFFICIALS INVOLVED
DOES NOT EXCUSE A JUDGE FOR SANCTIONING A PROCEDURE THAT IS DANGEROUSLY
WRONG IN PRINCIPLE.  DISSENT IN BOWLES V. UNITED STATES, 319 U.S. 33,
37. 

CONGRESS WILL HAVE TO USE MORE EXPLICIT LANGUAGE THAN ANY YET CITED
BEFORE I WILL AGREE THAT IT HAS AUTHORIZED AN ADMINISTRATIVE OFFICER TO
BREAK UP THE FAMILY OF AN AMERICAN CITIZEN OR FORCE HIM TO KEEP HIS
WIFE BY BECOMING AN EXILE.  LIKEWISE, IT WILL HAVE TO BE MUCH MORE
EXPLICIT BEFORE I CAN AGREE THAT IT AUTHORIZED A FINDING OF SERIOUS
MISCONDUCT AGAINST THE WIFE OF AN AMERICAN CITIZEN WITHOUT NOTICE OF
CHARGES, EVIDENCE OF GUILT AND A CHANCE TO MEET IT. 

I SHOULD DIRECT THE ATTORNEY GENERAL EITHER TO PRODUCE HIS EVIDENCE
JUSTIFYING EXCLUSION OR TO ADMIT MRS. KNAUFF TO THE COUNTRY. 
..END :



BRYAN V. UNITED STATES, 338 U.S. 552 


NO. 178.  ARGUED DECEMBER 13-14, 1949.  - DECIDED JANUARY 16, 1950.  -
175 F.2D 223, AFFIRMED. 


1.  WHEN A UNITED STATES COURT OF APPEALS REVERSES A DISTRICT COURT IN
A CRIMINAL CASE BECAUSE THE EVIDENCE IS NOT SUFFICIENT TO SUSTAIN A
CONVICTION, AND THE DEFENDANT HAD MADE ALL PROPER AND TIMELY MOTIONS
FOR ACQUITTAL AND FOR A NEW TRIAL IN THE DISTRICT COURT, THE COURT OF
APPEALS IS NOT REQUIRED TO DIRECT A JUDGMENT OF ACQUITTAL BUT MAY
DIRECT A NEW TRIAL.  PP. 553-560. 

(A)  THE AUTHORITY TO REMAND A CAUSE AND DIRECT THE ENTRY OF AN
"APPROPRIATE JUDGMENT" HAS LONG BEEN EXERCISED BY FEDERAL APPELLATE
COURTS AND IS NOW VESTED IN THE COURT OF APPEALS BY 28 U.S.C. SEC.
2106.  PP. 554-558. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY RULE 29 OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE, SINCE THAT RULE REFERS TO PROCEEDINGS IN
THE DISTRICT COURT AND DOES NOT CONTROL THE DIRECTIONS WHICH A COURT OF
APPEALS MAY ISSUE WHEN IT REMANDS A CAUSE TO A DISTRICT COURT.  PP. 558
559. 

(C)  ON THE RECORD IN THIS CASE, THE DIRECTION OF A NEW TRIAL BY THE
COURT OF APPEALS WAS AN "APPROPRIATE" JUDGMENT WHICH WAS "JUST" UNDER
THE CIRCUMSTANCES, WITHIN THE MEANING OF 28 U.S.C. SEC. 2106.  PP. 559
560. 

2.  WHERE AN ACCUSED SUCCESSFULLY SEEKS REVIEW OF A CONVICTION,
HAVING ASSIGNED SEVERAL ERRORS ON APPEAL, INCLUDING DENIAL OF A MOTION
FOR ACQUITTAL, THERE IS NO DOUBLE JEOPARDY UPON A NEW TRIAL.  P. 560. 

BRYAN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

PETITIONER WAS CONVICTED OF AN ATTEMPT TO EVADE THE INCOME-TAX LAWS,
AND THE DISTRICT COURT DENIED MOTIONS FOR THE ENTRY OF A JUDGMENT OF
ACQUITTAL AND FOR A NEW TRIAL.  THE COURT OF APPEALS REVERSED, BECAUSE
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE VERDICT, AND REMANDED THE
CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO GRANT A NEW TRIAL.  175
F.2D 223.  THIS COURT GRANTED CERTIORARI.  338 U.S. 813.  AFFIRMED, P.
560. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE IMPORTANT QUESTION PRESENTED UPON THIS RECORD IS WHETHER THE
COURT OF APPEALS, WHEN IT REVERSES THE DISTRICT COURT BECAUSE THE
EVIDENCE IS NOT SUFFICIENT TO SUSTAIN A CONVICTION, MAY DIRECT A NEW
TRIAL WHERE A DEFENDANT HAD MADE ALL PROPER AND TIMELY MOTIONS FOR
ACQUITTAL IN THE DISTRICT COURT. 

PETITIONER WAS CONVICTED UPON TWO COUNTS OF AN ATTEMPT TO EVADE THE
INCOME-TAX LAWS AND SENTENCED TO TWO YEARS' IMPRISONMENT ON ONE COUNT
AND TO PAY A FINE OF TEN THOUSAND DOLLARS ON THE OTHER.  AT THE CLOSE
OF THE GOVERNMENT'S CASE PETITIONER MOVED FOR A JUDGMENT OF ACQUITTAL,
AND THE MOTION WAS RENEWED AT THE CONCLUSION OF ALL THE EVIDENCE.  A
VERDICT OF GUILTY WAS RETURNED, AND WITHIN FIVE DAYS PETITIONER MADE A
FURTHER MOTION FOR JUDGMENT OF ACQUITTAL OR IN THE ALTERNATIVE FOR A
NEW TRIAL.  THESE MOTIONS WERE ALL DENIED.  ON APPEAL TO THE COURT OF
APPEALS, THE JUDGMENT WAS REVERSED BECAUSE THE EVIDENCE WAS
INSUFFICIENT TO SUSTAIN THE VERDICT.  175 F.2D 223.  THE COURT OF
APPEALS REMANDED WITH DIRECTIONS TO THE DISTRICT COURT TO GRANT A NEW
TRIAL.  PETITIONER MOVED THE COURT OF APPEALS TO AMEND THE JUDGMENT TO
"CONFORM TO RULE 29(A) OF FEDERAL RULES OF CRIMINAL PROCEDURE,"
ALLEGING THAT A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN ENTERED.  THIS
MOTION WAS DENIED. 

WE GRANTED CERTIORARI TO EXAMINE THE POWER OF THE COURT OF APPEALS TO
GRANT A NEW TRIAL UNDER THE CIRCUMSTANCES OF THIS CASE.  338 U.S. 813. 

THE EXTENT OF THE POWER OF FEDERAL APPELLATE COURTS TO ENTER JUDGMENT
WHEN REVERSING AND REMANDING CASES ARISING IN THE LOWER FEDERAL COURTS
HAS BEEN DEFINED BY STATUTES FROM THE INCEPTION OF OUR SYSTEM OF
COURTS.  BY THE JUDICIARY ACT OF SEPTEMBER 24, 1789, 1 STAT. 85, THE
SUPREME COURT WAS GIVEN STATUTORY AUTHORITY, UPON REVIEW OF A DISTRICT
COURT JUDGMENT, TO ORDER SUCH FURTHER PROCEEDINGS "AS THE DISTRICT
COURT SHOULD HAVE RENDERED OR PASSED."  SEE BALLEW V. UNITED STATES,
160 U.S. 187, 198-99.  IN 1872 POWER WAS GIVEN THIS COURT TO "DIRECT
SUCH JUDGMENT, DECREE, OR ORDER TO BE RENDERED, OR SUCH FURTHER
PROCEEDINGS TO BE HAD BY THE INFERIOR COURT AS THE JUSTICE OF THE CASE
MAY REQUIRE."  17 STAT. 196-97.  OUR AUTHORITY TO RENDER JUDGMENT "AS
THE JUSTICE OF THE CASE MAY REQUIRE" WAS CONTINUED IN THOSE TERMS UNTIL
THE REVISION OF THE JUDICIAL CODE IN 1948.  R.S. SEC. 701, OLD TITLE 28
U.S.C. SEC. 876.  THIS AUTHORITY WAS EXERCISED BY REMANDING FOR A NEW
TRIAL WHERE, ON WRIT OF ERROR TO A DISTRICT COURT, THE JUDGMENT WAS
REVERSED ON THE GROUND THAT THE EVIDENCE WAS NOT SUFFICIENT TO SUSTAIN
THE VERDICT.  WIBORG V. UNITED STATES, 163 U.S. 632.  LIKEWISE IN
CLYATT V. UNITED STATES, 197 U.S. 207, ON WRIT OF CERTIORARI TO THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT, A NEW TRIAL WAS DIRECTED WHERE
THE EVIDENCE WAS HELD TO BE INSUFFICIENT TO SUSTAIN THE CONVICTION.  ON
A SIMILAR GROUND THIS COURT REVERSED A JUDGMENT  AND DIRECTED THAT THE
DEFENDANTS BE DISCHARGED.  FRANCE V. UNITED STATES, 164 U.S. 676. 

THE AUTHORITY AND PRACTICE OF THE COURTS OF APPEALS HAVE BEEN ROUGHLY
PARALLEL TO THOSE OF THIS COURT.  WHEN THE CIRCUIT COURTS OF APPEALS
WERE ESTABLISHED IN 1891, IT WAS PROVIDED THAT UPON REVERSAL BY SUCH
COURTS THE "CAUSE SHALL BE REMANDED TO THE  ...  DISTRICT COURT FOR
FURTHER PROCEEDINGS TO BE THERE TAKEN IN PURSUANCE OF SUCH
DETERMINATION."  26 STAT. 829, 28 U.S.C. SEC. 877.  FN1  UNDER THIS
PROVISION THE CIRCUIT COURTS OF APPEALS HAVE REVERSED FOR INSUFFICIENCY
OF THE EVIDENCE TO SUSTAIN THE VERDICT AND REMANDED FOR A NEW TRIAL IN
NUMEROUS CASES, ALTHOUGH A VERDICT SHOULD HAVE BEEN DIRECTED FOR THE
DEFENDANT BY THE DISTRICT COURT.  FIRST CIRCUIT:  ENRIQUE RIVERA V.
UNITED STATES, 57 F.2D 816; THIRD CIRCUIT:  UNITED STATES V. DI GENOVA,
134 F.2D 466; UNITED STATES V. RUSSO, 123 F.2D 420; RIDENOUR V. UNITED
STATES, 14 F.2D 888; EIGHTH CIRCUIT:  PINES V. UNITED STATES, 123 F.2D
825; SCOGGINS V. UNITED STATES, 255 F. 825; NINTH CIRCUIT:  BUHLER V.
UNITED STATES, 33 F.2D 382; TENTH CIRCUIT:  LESLIE V. UNITED STATES, 43
F.2D 288.  UNDER THE SAME STATUTORY AUTHORITY  FN2  SEVERAL CIRCUIT
COURTS OF APPEALS HAVE DIRECTED THE DISCHARGE OF THE DEFENDANT OR THE
DISMISSAL OF THE INDICTMENT WHEN REVERSING FOR INSUFFICIENCY OF THE
EVIDENCE.  SECOND CIRCUIT:  UNITED STATES V. BONANZI, 94 F.2D 570;
ROMANO V. UNITED STATES, 9 F.2D 522; SIXTH CIRCUIT:  CEMONTE V. UNITED
STATES, 89 F.2D 362; NINTH CIRCUIT:  KLEE V. UNITED STATES, 53 F.2D
58.  SINCE THE FEDERAL RULES OF CRIMINAL PROCEDURE WENT INTO EFFECT ON
MARCH 21, 1946, THREE CIRCUIT COURTS OF APPEALS HAVE ENTERED A JUDGMENT
OF ACQUITTAL UPON REVERSING FOR INSUFFICIENCY OF THE EVIDENCE, RELYING
AT LEAST IN PART ON RULE 29.  FN3  THIRD CIRCUIT:  UNITED STATES V.
BOZZA, 155 F.2D 592; UNITED STATES V. RENEE ICE CREAM CO., 160 F.2D
353; SEVENTH CIRCUIT:  UNITED STATES V. GARDNER, 171 F.2D 753; NINTH
CIRCUIT:  KARN V. UNITED STATES, 158 F.2D 568.  FN4 

WHEN THE JUDICIAL CODE WAS REVISED IN 1948 THE PROVISIONS OF SEC. 876
AND SEC. 877 RELATING TO THE POWER OF THIS COURT AND THAT OF THE COURTS
OFAPPEALS ON REMAND WERE DOVETAILED INTO A SINGLE SECTION, 28 U.S.C.
SEC. 2106,  FN5  PROVIDING: 

"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."  UNDER THIS STATUTE FOR THE FIRST TIME THE
POWER OF THE SUPREME COURT AND THE COURTS OF APPEALS TO ENTER JUDGMENT
WHEN REMANDING A CASE TO THE LOWER COURT IS SET OUT IN IDENTICAL
LANGUAGE IN A SINGLE SECTION.  THAT COEXTENSIVE POWER IS TO DIRECT
"SUCH APPROPRIATE JUDGMENT  ...  AS MAY BE JUST UNDER THE
CIRCUMSTANCES."  THIS LANGUAGE IS AT LEAST AS BROAD AS THE PROVISIONS
OF SEC. 876 AND SEC. 877.  AS DETAILED ABOVE, THIS COURT AND THE COURTS
OF APPEALS DIRECTED NEW TRIALS AS A MATTER OF COURSE UNDER THOSE

IT IS PETITIONER'S POSITION THAT THIS PREVIOUS AUTHORITY HAS BEEN
ABROGATED BY THE ADVENT OF THE FEDERAL RULES OF CRIMINAL PROCEDURE,
ESPECIALLY RULE 29(A) AND (B).  FN6  PETITIONER ARGUES THAT THE COURT
OF APPEALS MUST GIVE THE JUDGMENT THAT THE TRIAL COURT WOULD HAVE BEEN
REQUIRED TO AWARD HAD IT RULED CORRECTLY.  SINCE THE GOVERNMENT FAILED
TO MAKE OUT A PRIMA FACIE CASE, HE CLAIMS THAT HE IS ENTITLED TO A
JUDGMENT OF ACQUITTAL BECAUSE THE TRIAL COURT IS REQUIRED BY RULE 29 TO
ENTER SUCH JUDGMENT ON PROPER MOTION WHERE IT FINDS THE EVIDENCE
INSUFFICIENT TO SUSTAIN A VERDICT.  PETITIONER CONTENDS IN THE
ALTERNATIVE THAT RULE 29 APPLIES TO THE COURTS OF APPEALS, AND THAT THE
COURT OF APPEALS WAS ITSELF COMPELLED BY THE RULE TO GIVE A JUDGMENT OF
ACQUITTAL WHEN IT DECIDED THAT THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN
THE CONVICTION. 

THE RULES ARE ENTITLED "RULES OF CRIMINAL PROCEDURE FOR THE UNITED
STATES DISTRICT COURTS."  RULE 1 DEFINES THEIR SCOPE, STATING THAT
"THESE RULES GOVERN THE PROCEDURE IN THE COURTS OF THE UNITED STATES." 
THE COURTS OF APPEALS ARE INCLUDED IN THE LIST OF COURTS SPECIFIED IN
RULE 54(A)(1) TO WHICH THE RULES ARE TO APPLY.  IT IS OBVIOUS,
NEVERTHELESS, THAT SOME OF THE RULES ARE RELEVANT ONLY TO PRELIMINARY
PROCEEDINGS OR TO PROCEDURE PRIOR TO APPEAL.  IN OUR OPINION RULE 29 IS
SUCH A RULE, REFERRING SOLELY TO THE CONDUCT OF TRIALS IN THE DISTRICT
COURTS.  IT IS THERE THAT THE MOTION FOR JUDGMENT OF ACQUITTAL IS
MADE.  IT IS THE OFFICE OF THE TRIAL COURT TO RULE ON THE MOTION.  WE
HOLD THAT THE "COURT" REFERRED TO IN RULE 29 IS THE DISTRICT COURT. 
CONSEQUENTLY THE RULE DOES NOT AFFECT, EITHER TO ADD TO OR TO DETRACT
FROM, THE POWER OF COURTS OF APPEALS WHEN REMANDING A CASE TO THE
DISTRICT COURT. 

OF COURSE THE COURT OF APPEALS MUST DETERMINE WHETHER THE RULE HAS
BEEN OBSERVED BY THE DISTRICT COURT.  IF IT FINDS THAT THE DISTRICT
COURT HAS ERRED AND HAS NOT PROPERLY APPLIED THE RULE, THAT IS AN ERROR
OF LAW FOR WHICH THE COURT OF APPEALS MAY REVERSE AND REMAND.  BUT WHEN
THE COURT OF APPEALS REMANDS, RULE 29 DOES NOT CONTROL ITS DIRECTIONS
TO THE DISTRICT COURT.  THE COURT OF APPEALS MUST LOOK TO THE STATUTE
DEFINING ITS APPELLATE POWER, 28 U.S.C. SEC. 2106, FOR GUIDANCE AS TO
THE KIND OF ORDER WHICH IT MAY DIRECT THE DISTRICT COURT TO ENTER. 

WE THUS REACH THE QUESTION OF WHETHER THE DIRECTION OF A NEW TRIAL BY
THE COURT OF APPEALS WAS AN "APPROPRIATE" JUDGMENT WHICH WAS "JUST"
UNDER THE CIRCUMSTANCES AND THEREFORE AUTHORIZED BY SEC. 2106, OR
WHETHER, AS PETITIONER CONTENDS, IT WAS MANDATORY THAT THE COURT OF
APPEALS ENTER A JUDGMENT OF ACQUITTAL.  WHETHER THE DIRECTION OF A
JUDGMENT OF ACQUITTAL OR A REMAND TO THE DISTRICT COURT WITHOUT
DIRECTION BY THE COURT OF APPEALS WOULD MEET THOSE REQUIREMENTS IS NOT
BEFORE US. 

AS PREVIOUSLY STATED, THE COURTS OF APPEALS HAD OFTEN DIRECTED A NEW
TRIAL PRIOR TO THE ENACTMENT OF SEC. 2106.  THE COURT OF APPEALS
APPARENTLY BELIEVED THAT JUSTICE WAS SERVED BY THE GRANTING OF A NEW
TRIAL IN THIS CASE.  ON THE MOTION TO AMEND ITS ORDER OF REMAND THE
COURT STATED:  "THE MAJORITY THINKING THE DEFECT IN THE EVIDENCE MIGHT
BE SUPPLIED ON ANOTHER TRIAL DIRECTED THAT IT BE HAD."  AND ONE JUDGE
VIGOROUSLY DISSENTED FROM THE ORIGINAL OPINION BECAUSE HE THOUGHT THAT
THE EVIDENCE AMPLY SUPPORTED THE VERDICT. 

A NEW TRIAL WAS ONE OF THE REMEDIES WHICH PETITIONER SOUGHT.  HE
PROPERLY GAVE THE DISTRICT COURT AN OPPORTUNITY AFTER VERDICT TO
CORRECT ITS ERROR IN FAILING TO SUSTAIN HIS MOTION FOR JUDGMENT OF
ACQUITTAL AT THE CONCLUSION OF ALL THE EVIDENCE, WHICH CLAIMED ERROR
WAS ASSIGNED AS A GROUND FOR A NEW TRIAL.  WE AGREE THAT ON THIS RECORD
THE ORDER FOR A NEW TRIAL WAS A JUST AND APPROPRIATE JUDGMENT WHICH THE
COURT OF APPEALS WAS AUTHORIZED TO ENTER BY 28 U.S.C. SEC. 2106. 

PETITIONER'S CONTENTION THAT TO REQUIRE HIM TO STAND TRIAL AGAIN
WOULD BE TO PLACE HIM TWICE IN JEOPARDY IS NOT PERSUASIVE.  HE SOUGHT
AND OBTAINED THE REVERSAL OF HIS CONVICTION, ASSIGNING A NUMBER OF
ALLEGED ERRORS ON APPEAL, INCLUDING DENIAL OF HIS MOTION FOR JUDGMENT
OF ACQUITTAL.  "...  WHERE THE ACCUSED SUCCESSFULLY SEEKS REVIEW OF A
CONVICTION, THERE IS NO DOUBLE JEOPARDY UPON A NEW TRIAL."  FRANCIS V.
RESWEBER, 329 U.S. 459, 462.  SEE TRONO V. UNITED STATES, 199 U.S. 521,
533-34. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  THE SUCCEEDING SECTION PROVIDED THAT EXISTING METHODS OF REVIEW
SHOULD REGULATE THE SYSTEM OF APPEALS AND WRITS OF ERROR IN THE CIRCUIT
COURTS OF APPEALS AND THAT THE JUDGES OF THE NEW COURTS WERE TO HAVE
"THE SAME POWERS AND DUTIES AS TO THE ALLOWANCE OF APPEALS OR WRITS OF
ERROR, AND THE CONDITIONS OF SUCH ALLOWANCE, AS NOW BY LAW BELONG TO
THE JUSTICES OR JUDGES IN RESPECT OF THE EXISTING COURTS OF THE UNITED
STATES  ...."  26 STAT. 829.  ALTHOUGH IN TERMS THIS LATTER SECTION
DEALT ONLY WITH THE CONDITIONS UNDER WHICH APPEALS OR WRITS OF ERROR
WOULD BE PERMITTED, IT WAS CONSTRUED BY SOME COURTS AS MAKING 28 U.S.C.
SEC. 876, RELATING TO THE APPELLATE POWER OF THE SUPREME COURT,
APPLICABLE TO THE CIRCUIT COURTS OF APPEALS.  FARRAR V. WHEELER, 145 F.
482, 486-87; WHITWORTH V. UNITED STATES, 114 F. 302, 305; STANDARD CO.
V. CRANE ELEVATOR CO., 76 F. 767, 775.  CF. REALTY CORP. V. MONTGOMERY,
284 U.S. 547, 550; BALLEW V. UNITED STATES, 160 U.S. 187, 201-202;
EQUITABLE LIFE ASSUR.  SOC.  V. MERCANTILE CO., 143 F.2D 397, 405;
UNITED STATES V. ILLINOIS SURETY CO., 226 F. 653, 664. 

FN2  SECTION 877 AUTHORIZED THE SUPREME COURT ON DIRECT APPEAL OR
OTHERWISE FROM THE DISTRICT COURT TO ORDER THE CAUSE REMANDED TO THE
PROPER DISTRICT COURT FOR "FURTHER PROCEEDINGS TO BE TAKEN IN PURSUANCE
OF SUCH DETERMINATION."  ON APPEAL OR OTHERWISE TO THE SUPREME COURT
FROM THE CIRCUIT COURTS OF APPEALS, AFTER REVIEW AND DETERMINATION, THE
CAUSE "SHALL BE REMANDED BY THE SUPREME COURT TO THE PROPER DISTRICT
COURT FOR FURTHER PROCEEDINGS IN PURSUANCE OF SUCH DETERMINATION."  ON
APPEAL OR OTHERWISE IN A CAUSE COMING TO THE CIRCUIT COURT OF APPEALS
FROM THE DISTRICT COURT FOR REVIEW AND DETERMINATION, IN WHICH THE
DECISION OF THE CIRCUIT COURT OF APPEALS IS FINAL, "SUCH CAUSE SHALL BE
REMANDED TO THE SAID DISTRICT COURT FOR FURTHER PROCEEDINGS TO BE THERE
TAKEN IN PURSUANCE OF SUCH DETERMINATION."  IT MAY BE NOTED THAT THE
LANGUAGE GIVING AUTHORITY TO THE SUPREME COURT TO REMAND A PROCEEDING
BROUGHT TO THE COURT FROM THE CIRCUIT COURT OF APPEALS DID NOT CONTAIN
THE WORDS "TO BE TAKEN" AS IN THE CASE OF THE DIRECT PROCEEDINGS FROM
THE DISTRICT COURT.  IN PROCEEDINGS FROM THE DISTRICT COURT TO THE
CIRCUIT COURT OF APPEALS, THE LANGUAGE WAS STILL DIFFERENT.  THERE THE
REMAND WAS "FOR FURTHER PROCEEDINGS TO BE THERE TAKEN IN PURSUANCE OF
SUCH DETERMINATION."  WE HAVE FOUND NO CASE WHICH HAS NOTICED THIS
DISCREPANT LANGUAGE, ALTHOUGH IN THE SAME SECTION.    FN3  "RULE 29. 
MOTION FOR ACQUITTAL. 

"(A)  MOTION FOR JUDGMENT OF ACQUITTAL.  MOTIONS FOR DIRECTED VERDICT
ARE ABOLISHED AND MOTIONS FOR JUDGMENT OF ACQUITTAL SHALL BE USED IN
THEIR PLACE.  THE COURT ON MOTION OF A DEFENDANT OR OF ITS OWN MOTION
SHALL ORDER THE ENTRY OF JUDGMENT OF ACQUITTAL OF ONE OR MORE OFFENSES
CHARGED IN THE INDICTMENT OR INFORMATION AFTER THE EVIDENCE ON EITHER
SIDE IS CLOSED IF THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION
OF SUCH OFFENSE OR OFFENSES.  IF A DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL AT THE CLOSE OF THE EVIDENCE OFFERED BY THE GOVERNMENT IS NOT
GRANTED, THE DEFENDANT MAY OFFER EVIDENCE WITHOUT HAVING RESERVED THE
RIGHT. 

"(B)  RESERVATION OF DECISION ON MOTION.  IF A MOTION FOR JUDGMENT OF
ACQUITTAL IS MADE AT THE CLOSE OF ALL THE EVIDENCE, THE COURT MAY
RESERVE DECISION ON THE MOTION, SUBMIT THE CASE TO THE JURY AND DECIDE
THE MOTION EITHER BEFORE THE JURY RETURNS A VERDICT OR AFTER IT RETURNS
A VERDICT OF GUILTY OR IS DISCHARGED WITHOUT HAVING RETURNED A
VERDICT.  IF THE MOTION IS DENIED AND THE CASE IS SUBMITTED TO THE
JURY, THE MOTION MAY BE RENEWED WITHIN 5 DAYS AFTER THE JURY IS
DISCHARGED AND MAY INCLUDE IN THE ALTERNATIVE A MOTION FOR A NEW
TRIAL.  IF A VERDICT OF GUILTY IS RETURNED THE COURT MAY ON SUCH MOTION
SET ASIDE THE VERDICT AND ORDER A NEW TRIAL OR ENTER JUDGMENT OF
ACQUITTAL.  IF NO VERDICT IS RETURNED THE COURT MAY ORDER A NEW TRIAL
OR ENTER JUDGMENT OF ACQUITTAL."  327 U.S. 853. 

FN4  IN THE INSTANT CASE THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
DISCUSSED BUT DID NOT DECIDE THE APPLICABILITY OF RULE 29 TO ITS
JUDGMENTS.  THE COURT WAS OF THE OPINION THAT IF THE RULE APPLIED IT
AUTHORIZED THE COURT'S DIRECTION OF A NEW TRIAL. 

FN5  28 U.S.C. SEC. 344, RELEVANT TO REVIEW OF CASES FROM STATE
COURTS BY THE SUPREME COURT, WAS ALSO INCORPORATED IN SEC. 2106. 

FN6  SEE NOTE 3, SUPRA. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK AND MR. JUSTICE REED WOULD AFFIRM WITH A
MODIFICATION OF THE JUDGMENT TO REMAND TO THE DISTRICT COURT TO DECIDE
WHETHER A JUDGMENT OF ACQUITTAL SHOULD BE ENTERED OR A NEW TRIAL
ORDERED.  IN THEIR OPINION 28 U.S.C. SEC. 2106 MEANS THAT THE ORDER OF
AN APPELLATE COURT SHOULD BE CONFORMABLE TO SPECIFIC LEGAL
LIMITATIONS.  IN THIS CASE SUCH A LIMITATION IS FOUND IN CRIMINAL RULE
29.  UNDER THAT RULE THE DETERMINATION AS TO WHETHER TO GRANT A NEW
TRIAL OR TO ACQUIT RESTS WITH THE DISTRICT COURT.  SEE CONE V. WEST
VIRGINIA PULP & PAPER CO., 330 U.S. 212. 
..END :











MARYLAND v. BALTIMORE RADIO SHOW, INC. ET AL., 338 U.S. 912;
70 S.CT. 252; 94 L. ED. 562 (1950).

JANUARY 9, 1950, DECIDED

PRIOR HISTORY:  COURT OF APPEALS OF MARYLAND.  REPORTED BELOW: 67
A. 2D 497.


COUNSEL: HALL HAMMOND, ATTORNEY GENERAL OF MARYLAND, AND HARRISON
L. WINTER, ASSISTANT ATTORNEY GENERAL, FOR PETITIONER.  J. PURDON
WRIGHT AND W. FRANK EVERY FOR RESPONDENTS.  ELISHA HANSON,
WILLIAM K. VAN ALLEN AND ARTHUR B. HANSON FILED A BRIEF FOR THE
AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION, AS AMICUS CURIAE,
OPPOSING THE PETITION.


OPINION:  CERTIORARI DENIED.  MR.JUSTICE FRANKFURTER HAS FILED AN
OPINION RESPECTING THE DENIAL OF THE PETITION FOR WRIT OF
CERTIORARI.

THE CRIMINAL COURT OF BALTIMORE CITY FOUND THE RESPONDENTS
GUILTY OF CONTEMPT AND IMPOSED FINES FOR BROADCASTING OVER LOCAL
RADIO STATIONS MATTER RELATING TO ONE EUGENE H. JAMES AT A TIME
WHEN HE WAS IN CUSTODY ON A CHARGE OF MURDER.  THE FACTS UPON
WHICH THESE FINDINGS WERE BASED ARE BEST NARRATED IN THE
AUTHORITATIVE STATEMENT OF THE TRIAL COURT:

"A LITTLE GIRL IN ONE OF THE PARKS OF WASHINGTON, D. C., HAD BEEN
MURDERED UNDER HORRIBLE AND TRAGIC CIRCUMSTANCES.  SOME TEN DAYS
LATER, LITTLE MARSHA BRILL WAS DRAGGED FROM HER BICYCLE ON ONE OF
THE PUBLIC THOROUGHFARES OF BALTIMORE CITY WHILE IN THE COMPANY, OR
AT LEAST, IN THE VICINITY OF TWO OF HER PLAYMATES, AND THERE
STABBED TO DEATH.  THE IMPACT OF THOSE TWO SIMILAR CRIMES UPON THE
PUBLIC MIND WAS TERRIFIC.  THE PEOPLE THROUGHOUT THE CITY WERE
OUTRAGED.  NOT ONLY WERE THEY OUTRAGED BUT THEY WERE TERRIFIED.
CERTAINLY, ANY PARENT OF A YOUNG CHILD MUST HAVE FELT A DREAD AT
THE THOUGHT THAT HIS OR HER CHILD MIGHT BE KILLED WHILE OUT UPON
THE THOROUGHFARES OF BALTIMORE CITY.  WE THINK  WE ARE JUSTIFIED IN
DRAWING THE CONCLUSION THAT THERE WAS WIDESPREAD AND COMPELLING
PUBLIC INTEREST IN THE BRILL MURDER.  WE THINK WE ARE  JUSTIFIED IN
ASSUMING THAT MANY, MANY EARS WERE ON THAT EVENING IN BALTIMORE,
GLUED TO THEIR RADIOS.  AND WHAT HAPPENED?  MR. CONNELLY GOES ON THE
AIR AND ANNOUNCES 'STAND BY FOR A SENSATION.'  NOW,  GENTLEMEN, IT IS
A FAIR AND SAFE BET THAT WHATEVER THE HOOPER-RATING OF HIS STATION
MAY BE, NO LISTENER TUNED TO HIS STATION WAS GOING TO TURN HIS
RADIO OFF WHEN HE HEARD THAT ANNOUNCEMENT.  MR. CONNELLY THEN  
PROCEEDED TO EXPLAIN THAT JAMES HAD BEEN APPREHENDED AND THAT HE
HAD BEEN CHARGED WITH THE BRILL MURDER.  THAT WAS ALL RIGHT.  NOBODY
COULD QUARREL WITH THAT, BUT THEN HE GOES ON TO SAY THAT JAMES HAD
CONFESSED TO THIS DASTARDLY CRIME, THAT HE HAS A LONG CRIMINAL
RECORD, THAT HE WENT OUT TO THE SCENE WITH THE OFFICERS AND THERE
RE-ENACTED THE CRIME, AND FURTHER, DUG UP FROM SOMEWHERE DOWN IN
THE LEAVES THE KNIFE THAT HE HAD USED TO MURDER THE LITTLE GIRL.   
 NOW, GENTLEMEN, THE COURT HAS NO  DIFFICULTY IN CONCLUDING THAT THE
BROADCAST WAS DEVASTATING.  ANYBODY  WHO HEARD IT WOULD NEVER FORGET
IT.  THE QUESTION THEN BEFORE US IS: DID THAT BROADCAST AND OTHERS
WHICH WERE LESS DAMAGING BY THE OTHER STATIONS, HAVE A CLEAR AND
PRESENT EFFECT UPON THE ADMINISTRATION OF JUSTICE?  THE COURT IS  
 BOUND TO SAY THAT WE DO NOT BELIEVE THAT THOSE  BROADCASTS HAD ANY
APPRECIABLE EFFECT TO SAY NOTHING OF CONSTITUTING A CLEAR AND
PRESENT DANGER, UPON THE DECISION OF THE JUDGES WHO TRIED THE CASE.   
 AT THE MOMENT WE DO NOT RECALL JUST WHO THOSE JUDGES WERE, BUT  
JUDGES ARE SUPPOSED TO BE MADE OF STERNER STUFF THAN TO BE
INFLUENCED  BY IRRESPONSIBLE STATEMENTS REGARDING PENDING CASES. 
THEY ARE TRAINED TO PUT ASIDE INADMISSIBLE EVIDENCE AND WHILE WE,
OF COURSE, RECOGNIZE OUR LIMITATIONS, I THINK THAT MOST JUDGES, AT
LEAST, ARE FAIRLY ABLE TO DISREGARD IMPROPER INFLUENCES WHICH MAY
HAVE REACHED THEIR ATTENTION.

"NOW, WHAT ABOUT THE JURY?  IN THE FIRST PLACE, WHAT IS THIS JURY
THAT WE ARE TALKING ABOUT?  THEY ARE TWELVE MEN, OR IN MOST
JURISDICTIONS NOW, AS IN MARYLAND, MEN AND WOMEN WHO ARE PICKED FROM
ALL WALKS OF LIFE AND WHO HAVE THE RESPONSIBILITY OF HEARING CASES AND
DETERMINING, IN THIS STATE AT LEAST, NOT ONLY THE FACTS BUT THE LAW IN
THE CASE.  IT MAY BE UNFORTUNATE, PERHAPS, BUT CERTAINLY THE FACT IS
THAT THE JURY'S VERDICT IS FINAL IN MOST CASES.  THERE IS THE LIMITED
PROTECTION OF THE ACCUSED TO APPLY FOR A NEW TRIAL, BUT THE COURT OF
APPEALS CAN NOT DETERMINE - REVIEW AND DETERMINE - THE PROPRIETY OF THE
VERDICT REACHED BY THE JURY EITHER ON THE LAW OR ON THE FACTS.  NOW
THIS JURY SYSTEM IS INTENDED, AND I THINK IT WORKS OUT THAT WAY, TO
BRING TO THE TRIAL OF A CASE AS ONE ELEMENT, THE PUBLIC OPINION IN THE
COMMUNITY.  IT IS TRUE THAT THE JURY IS SWORN TO DECIDE THE CASE UPON
THE EVIDENCE WHICH IT HEARS FROM THE WITNESS STAND, BUT I THINK THAT NO
EXPERIENCED LAWYER WOULD CONTEND THAT A JURY IS NOT EXPECTED TO BRING
TO THE CONSIDERATION OF ITS VERDICT THE TEMPERAMENT OF THE COMMUNITY IN
WHICH THE MEMBERS OF THE JURY LIVE.  THE JURY IS CALLED UPON TO DECIDE
THE FACTS AS IT HEARS THEM FROM THE WITNESS STAND IN THE LIGHT OF ITS
PAST EXPERIENCE AND, IF YOU PLEASE, ITS PAST KNOWLEDGE.  TRUE, ATTEMPTS
ARE MADE TO GET JURORS WHO HAVE NOT BEEN TOUCHED WITH ANY PREVIOUS
INFLUENCE IN THE CASE, BUT THE SAFEGUARDS THAT ARE PROVIDED FOR THE
REALIZATION OF THAT IDEAL ARE ALL TOO LIMITED. 

"THE COURT KNOWS NO GRAVER RESPONSIBILITY THAT DEVOLVES UPON COUNSEL
FOR THE DEFENSE IN A SERIOUS CRIMINAL CASE THAN THE RESPONSIBILITY OF
ADVISING HIS CLIENT WHETHER TO ELECT A JURY TRIAL OR A COURT TRIAL. 
COUNSEL MUST BE ABLE TO SENSE PUBLIC OPINION, AND HE MUST EVALUATE THE
POSSIBLE EFFECT UPON THE JURORS' MINDS OF THOSE THINGS WHICH THEY KNOW
OR THINK THEY KNOW.  DOUBTLESS, ALL OF US HAVE SEEN CASES TRIED IN
WHICH WE FELT THAT THE COUNSEL MADE ERRORS OF JUDGMENT AS TO HOW THE
PARTICULAR CASES OUGHT TO BE TRIED.  THEY ARE, HOWEVER, DOING THE BEST
THAT THEY CAN AND, AS I HAVE INDICATED, THEIRS IS A GRAVE
RESPONSIBILITY, BECAUSE IT IS IRREVOCABLE.  WHEN A JURY DETERMINES A
CASE THAT TERMINATES THE CASE AND IF COUNSEL MAY HAVE MADE AN
UNFORTUNATE CHOICE THEN HIS CLIENT SUFFERS THE CONSEQUENCES. 

"NOW, THE COURT CAN NOT HELP BUT FEEL THAT THE BROADCAST REFERRED TO
IN THESE CASES MUST HAVE HAD AN INDELIBLE EFFECT UPON THE PUBLIC MIND
AND THAT THAT EFFECT WAS ONE THAT WAS BOUND TO FOLLOW THE MEMBERS OF
THE PANEL INTO THE JURY ROOM.  THE COURT HARDLY NEEDS EVIDENCE IN THIS
FACTUAL SITUATION TO REACH THE CONCLUSION THAT JAMES' FREE CHOICE TO
EITHER A COURT TRIAL ON THE ONE HAND AND A JURY TRIAL ON THE OTHER, HAS
BEEN CLEARLY AND DEFINITELY INTERFERED WITH.  HOWEVER, WE DO HAVE THE
TESTIMONY OF HIS COUNSEL, MR. MURPHY, (AND WE ARE BOUND TO SAY THAT HIS
TESTIMONY SEEMED TO BE REASONABLE AND PERSUASIVE) WHO TOLD THE COURT
THAT HE FELT THAT HE HAD NO CHOICE.  HE SIMPLY COULD NOT AFFORD TO
SUBJECT HIS CLIENT TO THE RISK OF TRYING HIS CASE BEFORE A JURY IN A
COMMUNITY WHERE THIS EXTRANEOUS AND IMPROPER MATTER HAD BEEN
BROADCAST.  HE DID, IN FACT, ELECT A COURT TRIAL, BUT HE DID NOT HAVE
ANY ALTERNATIVE, ACCORDING TO HIS COUNSEL, AND THE COURT IS BOUND TO
SAY THAT WE AGREE WITH HIS COUNSEL.  THE SUGGESTION HAS BEEN MADE HERE
THAT THE RIGHT TO A JURY TRIAL COULD HAVE BEEN PROTECTED BY THE RIGHT
OF REMOVAL AND IN THIS CASE HE DID HAVE THE RIGHT, THE CONSTITUTIONAL
RIGHT, OF REMOVAL.  WE ASSUME THAT THE COURT WOULD HAVE SENT THE CASE
TO SOME OTHER CIRCUIT FOR TRIAL BUT MR. MURPHY SAYS THAT THERE WERE
SOME COUNTIES IN THE STATE WHERE HE DID NOT WANT TO SEND HIS CLIENT FOR
A JURY TRIAL.  NOT ONLY THAT, BUT MANY PARTS OF THE STATE WERE
BLANKETED BY THE SAME BROADCAST INFORMATION THAT WAS AVAILABLE TO THE
PEOPLE OF THE CITY OF BALTIMORE.  COUNSEL SAID THAT AT LEAST ONE OF THE
STATIONS HAD A RADIUS OF SEVEN HUNDRED AND FIFTY MILES. 

"THE SUGGESTION WAS MADE HERE ALSO, THAT THE MISCHIEF COULD HAVE BEEN
AVOIDED BY EXERCISING THE RIGHT OF THE DEFENSE TO EXAMINE, ON THEIR
VOIR DIRE, ALL PROSPECTIVE JURORS AND THEN INQUIRING AS TO WHETHER OR
NOT THEY HAD HEARD THESE BROADCASTS.  WELL, NOW, IT HARDLY SEEMS
NECESSARY FOR THE COURT TO SAY TO MEN WHO ARE EXPERIENCED IN THE TRIAL
OF JURY CASES, THAT EVERY TIME DEFENSE COUNSEL ASKED A PROSPECTIVE
JUROR WHETHER HE HAD HEARD A RADIO BROADCAST TO THE EFFECT THAT HIS
CLIENT HAS CONFESSED TO THIS CRIME OR THAT HE HAS BEEN GUILTY OF
SIMILAR CRIMES, HE WOULD BY THAT ACT BE DRIVING JUST ONE MORE NAIL INTO
JAMES' COFFIN.  WE THINK, THEREFORE, THAT REMEDY WAS USELESS. 

"NOW, GENTLEMEN, THE COURT MUST CONCLUDE THAT THESE BROADCASTS DID
CONSTITUTE, NOT MERELY A CLEAR AND PRESENT DANGER TO THE ADMINISTRATION
OF JUSTICE, BUT AN ACTUAL OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE,
IN THAT THEY DEPRIVED THE DEFENDANT, JAMES, OF HIS CONSTITUTIONAL RIGHT
TO HAVE AN IMPARTIAL JURY TRIAL." 

THE COURT OF APPEALS OF MARYLAND REVERSED THESE CONVICTIONS.  67 A.2D
497.  IT DID SO BY SUSTAINING "THE CHIEF CONTENTION OF THE APPELLANTS,
THAT THE POWER TO PUNISH FOR CONTEMPT IS LIMITED BY THE FIRST AND
FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION, AND THAT THE FACTS
IN THE CASE AT BAR CANNOT SUPPORT THE JUDGMENTS, IN THE LIGHT OF THOSE
AMENDMENTS, AS AUTHORITATIVELY CONSTRUED BY THE SUPREME COURT."  67
A.2D AT 507.  THE DECISION OF THE COURT OF APPEALS WAS THUS SUMMARIZED
IN THE DISSENTING OPINION OF JUDGE MARKELL: 

"THIS COURT HOLDS THAT UNDER THE DECISIONS OF THE SUPREME COURT
(BRIDGES V. CALIFORNIA, 314 U.S. 252; PENNEKAMP V. FLORIDA, 328 U.S.
331, AND CRAIG V. HARNEY, 331 U.S. 367) THE JUDGMENTS BELOW VIOLATE THE
FREEDOM OF SPEECH AND OF THE PRESS UNDER THE FOURTEENTH AMENDMENT.  IF
THIS IS THE CORRECT INTERPRETATION OF THESE DECISIONS, OF COURSE THEY
ARE CONCLUSIVE."  67 A.2D AT 518. 

THEREUPON THE STATE OF MARYLAND ASKED THIS COURT TO ISSUE A WRIT OF
CERTIORARI TO REVIEW THE DECISION OF ITS COURT OF APPEALS.  IN ITS
PETITION MARYLAND URGES THAT WHILE THE COURT OF APPEALS WAS OF COURSE
BOUND BY THE DECISIONS OF THIS COURT, THAT COURT MISCONCEIVED OUR
RULINGS, THAT THE INTERPRETATION WHICH IT PLACED UPON THE BRIDGES,
PENNEKAMP AND CRAIG CASES WAS NOT CORRECT, WITH THE RESULT THAT IT
ERRONEOUSLY REVERSED THE JUDGMENTS FOR CONTEMPT.  SINCE THE COURT BELOW
REACHED ITS CONCLUSIONS ON A MISCONCEPTION OF FEDERAL LAW, SO THE STATE
OF MARYLAND ARGUES, ONLY THIS COURT CAN RELEASE THE MARYLAND COURT FROM
ITS BONDAGE OF ERROR. 

THIS COURT NOW DECLINES TO REVIEW THE DECISION OF THE MARYLAND COURT
OF APPEALS.  THE SOLE SIGNIFICANCE OF SUCH DENIAL OF A PETITION FOR
WRIT OF CERTIORARI NEED NOT BE ELUCIDATED TO THOSE VERSED IN THE
COURT'S PROCEDURES.  IT SIMPLY MEANS THAT FEWER THAN FOUR MEMBERS OF
THE COURT DEEMED IT DESIRABLE TO REVIEW A DECISION OF THE LOWER COURT
AS A MATTER "OF SOUND JUDICIAL DISCRETION."  RULE 38, PARAGRAPH 5.  A
VARIETY OF CONSIDERATIONS UNDERLIE DENIALS OF THE WRIT, AND AS TO THE
SAME PETITION DIFFERENT REASONS MAY LEAD DIFFERENT JUSTICES TO THE SAME
RESULT.  THIS IS ESPECIALLY TRUE OF PETITIONS FOR REVIEW ON WRIT OF
CERTIORARI TO A STATE COURT.  NARROWLY TECHNICAL REASONS MAY LEAD TO
DENIALS.  REVIEW MAY BE SOUGHT TOO LATE; THE JUDGMENT OF THE LOWER
COURT MAY NOT BE FINAL; IT MAY NOT BE THE JUDGMENT OF A STATE COURT OF
LAST RESORT; THE DECISION MAY BE SUPPORTABLE AS A MATTER OF STATE LAW,
NOT SUBJECT TO REVIEW BY THIS COURT, EVEN THOUGH THE STATE COURT ALSO
PASSED ON ISSUES OF FEDERAL LAW.  A DECISION MAY SATISFY ALL THESE
TECHNICAL REQUIREMENTS AND YET MAY COMMEND ITSELF FOR REVIEW TO FEWER
THAN FOUR MEMBERS OF THE COURT.  PERTINENT CONSIDERATIONS OF JUDICIAL
POLICY HERE COME INTO PLAY.  A CASE MAY RAISE AN IMPORTANT QUESTION BUT
THE RECORD MAY BE CLOUDY.  IT MAY BE DESIRABLE TO HAVE DIFFERENT
ASPECTS OF AN ISSUE FURTHER ILLUMINED BY THE LOWER COURTS.  WISE
ADJUDICATION HAS ITS OWN TIME FOR RIPENING. 

SINCE THERE ARE THESE CONFLICTING AND, TO THE UNINFORMED, EVEN
CONFUSING REASONS FOR DENYING PETITIONS FOR CERTIORARI, IT HAS BEEN
SUGGESTED FROM TIME TO TIME THAT THE COURT INDICATE ITS REASONS FOR
DENIAL.  PRACTICAL CONSIDERATIONS PRECLUDE.  IN ORDER THAT THE COURT
MAY BE ENABLED TO DISCHARGE ITS INDISPENSABLE DUTIES, CONGRESS HAS
PLACED THE CONTROL OF THE COURT'S BUSINESS, IN EFFECT, WITHIN THE
COURT'S DISCRETION.  DURING THE LAST THREE TERMS THE COURT DISPOSED OF
260, 217, 224 CASES, RESPECTIVELY, ON THEIR MERITS.  FOR THE SAME THREE
TERMS THE COURT DENIED, RESPECTIVELY, 1,260, 1,105, 1,189 PETITIONS
CALLING FOR DISCRETIONARY REVIEW.  IF THE COURT IS TO DO ITS WORK IT
WOULD NOT BE FEASIBLE TO GIVE REASONS, HOWEVER BRIEF, FOR REFUSING TO
TAKE THESE CASES.  THE TIME THAT WOULD BE REQUIRED IS PROHIBITIVE,
APART FROM THE FACT AS ALREADY INDICATED THAT DIFFERENT REASONS NOT
INFREQUENTLY MOVE DIFFERENT MEMBERS OF THE COURT IN CONCLUDING THAT A
PARTICULAR CASE AT A PARTICULAR TIME MAKES REVIEW UNDESIRABLE.  IT
BECOMES RELEVANT HERE TO NOTE THAT FAILURE TO RECORD A DISSENT FROM A
DENIAL OF A PETITION FOR WRIT OF CERTIORARI IN NOWISE IMPLIES THAT ONLY
THE MEMBER OF THE COURT WHO NOTES HIS DISSENT THOUGHT THE PETITION
SHOULD BE GRANTED.    INASMUCH, THEREFORE, AS ALL THAT A DENIAL OF A
PETITION FOR A WRIT OF CERTIORARI MEANS IS THAT FEWER THAN FOUR MEMBERS
OF THE COURT THOUGHT IT SHOULD BE GRANTED, THIS COURT HAS RIGOROUSLY
INSISTED THAT SUCH A DENIAL CARRIES WITH IT NO IMPLICATION WHATEVER
REGARDING THE COURT'S VIEWS ON THE MERITS OF A CASE WHICH IT HAS
DECLINED TO REVIEW.  THE COURT HAS SAID THIS AGAIN AND AGAIN; AGAIN AND
AGAIN THE ADMONITION HAS TO BE REPEATED. 

THE ONE THING THAT CAN BE SAID WITH CERTAINTY ABOUT THE COURT'S
DENIAL OF MARYLAND'S PETITION IN THIS CASE IS THAT IT DOES NOT REMOTELY
IMPLY APPROVAL OR DISAPPROVAL OF WHAT WAS SAID BY THE COURT OF APPEALS
OF MARYLAND.  THE ISSUES CANVASSED IN THE OPINIONS OF THAT COURT, AND
WHICH THE STATE OF MARYLAND HAS ASKED US TO REVIEW, ARE OF A NATURE
WHICH VERY READILY LEND THEMSELVES TO MISCONSTRUCTION OF THE DENIAL OF
THIS PETITION.  THE PRESENT INSTANCE IS PECULIARLY ONE WHERE THE
REDUNDANT BECOMES THE NECESSARY. 

IT BECOMES NECESSARY TO SAY THAT DENIAL OF THIS PETITION CARRIES NO
SUPPORT WHATEVER FOR CONCLUDING THAT EITHER THE MAJORITY OR THE DISSENT
IN THE COURT BELOW CORRECTLY INTERPRETED THE SCOPE OF OUR DECISIONS IN
BRIDGES V. CALIFORNIA, 314 U.S. 252; PENNEKAMP V. FLORIDA, 328 U.S.
331; AND CRAIG V. HARNEY, 331 U.S. 367.  IT DOES NOT CARRY ANY
IMPLICATION THAT EITHER, OR NEITHER, OPINION BELOW CORRECTLY APPLIED
THOSE DECISIONS TO THE FACTS IN THE CASE AT BAR. 

THE ISSUES CONSIDERED BY THE COURT OF APPEALS BEAR ON SOME OF THE
BASIC PROBLEMS OF A DEMOCRATIC SOCIETY.  FREEDOM OF THE PRESS, PROPERLY
CONCEIVED, IS BASIC TO OUR CONSTITUTIONAL SYSTEM.  SAFEGUARDS FOR THE
FAIR ADMINISTRATION OF CRIMINAL JUSTICE ARE ENSHRINED IN OUR BILL OF
RIGHTS.  RESPECT FOR BOTH OF THESE INDISPENSABLE ELEMENTS OF OUR
CONSTITUTIONAL SYSTEM PRESENTS SOME OF THE MOST DIFFICULT AND DELICATE
PROBLEMS FOR ADJUDICATION WHEN THEY ARE BEFORE THE COURT FOR
ADJUDICATION.  IT HAS TAKEN CENTURIES OF STRUGGLE TO EVOLVE OUR SYSTEM
FOR BRINGING THE GUILTY TO BOOK, PROTECTING THE INNOCENT, AND
MAINTAINING THE INTERESTS OF SOCIETY CONSONANT WITH OUR DEMOCRATIC
PROFESSIONS.  ONE OF THE DEMANDS OF A DEMOCRATIC SOCIETY IS THAT THE
PUBLIC SHOULD KNOW WHAT GOES ON IN COURTS BY BEING TOLD BY THE PRESS
WHAT HAPPENS THERE, TO THE END THAT THE PUBLIC MAY JUDGE WHETHER OUR
SYSTEM OF CRIMINAL JUSTICE IS FAIR AND RIGHT.  ON THE OTHER HAND OUR
SOCIETY HAS SET APART COURT AND JURY AS THE TRIBUNAL FOR DETERMINING
GUILT OR INNOCENCE ON THE BASIS OF EVIDENCE ADDUCED IN COURT, SO FAR AS
IT IS HUMANLY POSSIBLE.  IT WOULD BE THE GROSSEST PERVERSION OF ALL
THAT MR. JUSTICE HOLMES REPRESENTS TO SUGGEST THAT IT IS ALSO TRUE OF
THE THOUGHT BEHIND A CRIMINAL CHARGE "  ...  THAT THE BEST TEST OF
TRUTH IS THE POWER OF THE THOUGHT TO GET ITSELF ACCEPTED IN THE
COMPETITION OF THE MARKET."  ABRAMS V. UNITED STATES, 250 U.S. 616,
630.  PROCEEDINGS FOR THE DETERMINATION OF GUILT OR INNOCENCE IN OPEN
COURT BEFORE A JURY ARE NOT IN COMPETITION WITH ANY OTHER MEANS FOR
ESTABLISHING THE CHARGE. 

I HAVE SET FORTH IN AN APPENDIX THE COURSE OF RECENT ENGLISH
DECISIONS DEALING WITH SITUATIONS IN WHICH PUBLICATIONS WERE CLAIMED TO
HAVE INJURIOUSLY AFFECTED THE PROSECUTIONS FOR CRIME AWAITING JURY
DETERMINATION.  (AS TO FREEDOM OF PRESS IN ENGLAND, SEE REPORT OF THE
ROYAL COMMISSION ON THE PRESS, CMD.  NO. 7700, AND THE DEBATE THEREON
IN THE HOUSE OF COMMONS, JULY 28, 1949.  467 H.C. DEB.  (5TH SER.) 
2683-2794.)  REFERENCE IS MADE TO THIS BODY OF EXPERIENCE MERELY FOR
THE PURPOSE OF INDICATING THE KIND OF QUESTIONS THAT WOULD HAVE TO BE
FACED WERE WE CALLED UPON TO PASS ON THE LIMITS THAT THE FOURTEENTH
AMENDMENT PLACES UPON THE POWER OF STATES TO SAFEGUARD THE FAIR
ADMINISTRATION OF CRIMINAL JUSTICE BY JURY TRIAL FROM MUTILATION OR
DISTORTION BY EXTRANEOUS INFLUENCES.  THESE ARE ISSUES THAT THIS COURT
HAS NOT YET ADJUDICATED.  IT IS NOT TO BE SUPPOSED THAT BY IMPLICATION
IT MEANS TO ADJUDICATE THEM BY REFUSING TO ADJUDICATE. 

APPENDIX TO OPINION OF FRANKFURTER, J. 

ENGLISH DECISIONS CONCERNING CONTEMPT OF COURT FOR COMMENTS
PREJUDICIAL TO THE FAIR ADMINISTRATION OF CRIMINAL JUSTICE. 

A. CASES FINDING CONTEMPT. 

1.  KING V. TIBBITS AND WINDUST, (1902) K.B. 77(1901).  THE JUDGMENT
OF THE COURT (LORD ALVERSTONE C.J., AND WILLS, GRANTHAM, KENNEDY AND
RIDLEY JJ.)  WAS READ BY LORD ALVERSTONE C.J. THE CASE IS ADEQUATELY
SUMMARIZED IN THE HEADNOTE: 

"DURING THE COURSE OF THE TRIAL OF TWO PERSONS FOR FELONY THE
REPORTER FOR A CERTAIN NEWSPAPER SENT TO THE EDITOR ARTICLES AFFECTING
THE CONDUCT AND CHARACTER OF THE PERSONS UNDER TRIAL WHICH WOULD HAVE
BEEN INADMISSIBLE IN EVIDENCE AGAINST THEM.  THE EDITOR PUBLISHED THE
ARTICLES, AND, AFTER THE CONVICTION AND SENTENCE OF THE TWO PERSONS, HE
AND THE REPORTER WERE CONVICTED ON AN INDICTMENT CHARGING THEM WITH
UNLAWFULLY ATTEMPTING TO PERVERT THE COURSE OF JUSTICE BY PUBLISHING
THE ARTICLES IN QUESTION AND WITH CONSPIRING TO DO SO:   - 

"HELD, THAT THE CONVICTION MUST BE AFFIRMED." 

EACH OF THE DEFENDANTS WAS SENTENCED TO SIX WEEKS' IMPRISONMENT ON
EACH COUNT OF THE INDICTMENT, THE SENTENCES TO RUN CONCURRENTLY. 

2.  KING V. PARKE, (1903) 2 K.B. 432(LORD ALVERSTONE C.J., WILLS AND
CHANNELL JJ.).  RULE FOR CONTEMPT OF COURT FOR PUBLICATION OF
STATEMENTS BY A NEWSPAPER, BEFORE THE ACCUSED'S COMMITMENT FOR TRIAL,
THAT HE HAD ENGAGED IN IMMORAL CONDUCT AND HAD ADMITTED A PRIOR
CONVICTION AND IMPRISONMENT FOR FORGERY.  ANSWERING THE ARGUMENT THAT
PUBLICATION BEFORE COMMITMENT WAS NOT A CONTEMPT, THE COURT THROUGH
WILLS J. SAID: 

"A MOMENT'S CONSIDERATION, IT SEEMS TO US, IS SUFFICIENT TO DISPOSE
OF SUCH A PROPOSITION.  THE REASON WHY THE PUBLICATION OF ARTICLES LIKE
THOSE WITH WHICH WE HAVE TO DEAL IS TREATED AS A CONTEMPT OF COURT IS
BECAUSE THEIR TENDENCY AND SOMETIMES THEIR OBJECT IS TO DEPRIVE THE
COURT OF THE POWER OF DOING THAT WHICH IS THE END FOR WHICH IT EXISTS -
NAMELY, TO ADMINISTER JUSTICE DULY, IMPARTIALLY, AND WITH REFERENCE
SOLELY TO THE FACTS JUDICIALLY BROUGHT BEFORE IT.  THEIR TENDENCY IS TO
REDUCE THE COURT WHICH HAS TO TRY THE CASE TO IMPOTENCE, SO FAR AS THE
EFFECTUAL ELIMINATION OF PREJUDICE AND PREPOSSESSION IS CONCERNED (PP.
436-37)." 

THE RULE WAS MADE ABSOLUTE, AND A FINE OF $*50 IMPOSED. 

3.  KING V. DAVIES, (1906) 1 K.B. 32(1905)(LORD ALVERSTONE C.J.,
WILLS AND DARLING JJ.).  RULE FOR CONTEMPT OF COURT FOR PUBLICATION IN
A NEWSPAPER OF STATEMENTS THAT A WOMAN, THEN UNDER ARREST ON A CHARGE
OF ABANDONING A CHILD BUT NOT COMMITTED FOR TRIAL FOR ATTEMPTED MURDER
OF THE CHILD UNTIL AFTER THE PUBLICATION, HAD PRACTICED WHOLESALE BABY
FARMING AND HAD BEEN CONVICTED OF FRAUD.  IN DELIVERING THE JUDGMENT OF
THE COURT, WILLS J. RELIED ON KING V. PARKE, SUPRA: 

"WE ADHERE TO THE VIEW WE EXPRESSED IN THAT CASE THAT THE PUBLICATION
OF SUCH ARTICLES IS A CONTEMPT OF THE COURT WHICH ULTIMATELY TRIES THE
CASE AFTER COMMITTAL, ALTHOUGH AT THE TIME WHEN THEY ARE PUBLISHED IT
CANNOT BE KNOWN WHETHER THERE WILL BE A COMMITTAL OR NOT.  THEIR
TENDENCY IS TO POISON THE STREAM OF JUSTICE IN THAT COURT, THOUGH AT
THE TIME OF THEIR PUBLICATION THE STREAM HAD NOT REACHED IT  ...  (P.
35)." 

THE RULE WAS MADE ABSOLUTE, AND A FINE OF $*100 IMPOSED. 

4.  REX V. CLARKE, 27 T.L.R. 32(K.B. 1910)(DARLING, PICKFORD AND
COLERIDGE JJ.).  RULE NISI FOR CONTEMPT OF COURT BASED ON A STATEMENT
PUBLISHED IN A NEWSPAPER THAT ONE CRIPPEN HAD CONFESSED TO HAVING
KILLED HIS WIFE, BUT HAD DENIED THE ACT WAS MURDER.  CRIPPEN WAS AT THE
TIME IN CUSTODY THOUGH NOT YET FORMALLY CHARGED. 

DURING THE COURSE OF THE ARGUMENT, DARLING J. STATED: 

"EVEN IF A CONFESSION HAD REALLY BEEN MADE, IT MIGHT STILL HAVE BEEN
CONTEMPT TO PUBLISH IT; IT MIGHT HAVE BEEN OF SUCH A KIND AS TO BE
INADMISSIBLE IN EVIDENCE (P. 33)." 

THE PERTINENT PART OF THE JUDGMENT OF THE COURT, DELIVERED THROUGH
DARLING J., WAS THUS REPORTED: 

"IN THE PRESENT CASE, AFTER THE MAN WAS IN CUSTODY THE NEWSPAPER
COMMENTED UPON THE CASE AS TO WHETHER HE HAD COMMITTED THE CRIME, NOT
TO ASSIST IN UNRAVELLING THE CASE.  IT WAS MERELY AN ATTEMPT TO
MINISTER TO THE IDLE CURIOSITY OF PEOPLE AS TO WHAT WAS PASSING WITHIN
THE PRISON BEFORE THE TRIAL TOOK PLACE.  A NEWS AGENT PROCURED VARIOUS
TELEGRAMS FROM QUEBEC, AND, WHEN HE DID NOT GET ENOUGH, HE TELEGRAPHED
FOR 1,000 WORDS MORE.  THE DAILY CHRONICLE PUBLISHED A TELEGRAM FROM
QUEBEC STATING:   - 'IT IS GENERALLY CONSIDERED HERE THAT THE FORMAL
OFFICIAL DENIALS THAT CRIPPEN HAS MADE A CONFESSION HINGE UPON A
DISTINCTION BETWEEN THE WORDS "ADMISSION" AND "CONFESSION."'  WHETHER
IT WAS AN ADMISSION OR CONFESSION THE EFFECT ON THE PRISONER WOULD BE
THE SAME.  THE TELEGRAM WENT ON:   - 'IT IS QUITE POSSIBLE THAT WHAT
CRIPPEN SAID MAY NOT BE REGARDED OFFICIALLY AS A CONFESSION, ESPECIALLY
AS HE DECLARED THAT HE WAS NOT A "MURDERER," BUT THAT THE PRISONER MADE
A STATEMENT TO INSPECTOR DEW LAST MONDAY I HAVE REASON TO FEEL
CERTAIN.  I HAVE CONFIDENCE IN THE AUTHORITY ON WHICH I CABLED YOU THE
INFORMATION SENT LAST NIGHT, AND I AM ASSURED TO-DAY FROM THE SAME
SOURCE THAT CRIPPEN ADMITTED IN THE PRESENCE OF WITNESSES THAT HE HAD
KILLED HIS WIFE, BUT DENIED THAT THE ACT WAS MURDER,' AND FINISHING UP
WITH STATING THAT HIS WIFE DIED FROM AN OPERATION.  ANYTHING MORE
CALCULATED TO PREJUDICE A DEFENCE COULD NOT BE IMAGINED.  THE JURORS
WERE DRAWN FROM THE COUNTY OF MIDDLESEX, WHERE THIS PAPER WAS WIDELY
CIRCULATED. 

"THE COURT HAD COME TO THE CONCLUSION THAT A CONTEMPT OF THE COURT
HAD BEEN COMMITTED IN THE PUBLICATION OF THIS MATTER, AND THAT IT WAS A
VERY GRAVE CONTEMPT.  IT WAS MOST IMPORTANT THAT THE ADMINISTRATION OF
JUSTICE IN THE COUNTRY SHOULD NOT BE HAMPERED.  TO HOLD OTHERWISE WOULD
BE TO NARROW THE JURISDICTION OF THE COURT, AND HIS LORDSHIP ADDED
THAT, SO LONG AS THEY SAT THERE, THEY WERE DETERMINED THAT TRIAL BY
NEWSPAPER SHOULD NOT BE SUBSTITUTED FOR TRIAL BY JURY.  THE PRIMARY
PUNISHMENT IN A CASE OF THIS KIND WAS IMPRISONMENT.  THE COURT COULD
NOT BE BLIND TO THE FACT THAT NEWSPAPERS WERE FREQUENTLY OWNED BY
WEALTHY PEOPLE WHO WOULD TAKE THEIR CHANCE AND CHEERFULLY PAY ANY FINES
THAT MIGHT BE INFLICTED FOR THE SAKE OF THE ADVERTISEMENT.  IF THIS
PRACTICE WAS NOT STOPPED THE COURT WOULD HAVE TO INFLICT THE PRIMARY
PUNISHMENT.  BUT THE COURT DID NOT INTEND TO DO SO IN THE PRESENT
CASE.  MR. PERRIS HAD SEEN THAT HE WAS IN THE WRONG AND HAD
APOLOGIZED.  THE APOLOGY WAS DUE TO THE PEOPLE WRONGED AND TO THE
PUBLIC.  THE COURT HAD NO FEELING IN REGARD TO THE MATTER.  THE COURT
THEREFORE DID NOT PUNISH HIM AS IF HE PERSISTED IN HIS WRONGDOING. 
BUT, NOTWITHSTANDING THIS, A VERY GRAVE OFFENCE HAD BEEN COMMITTED. 
HIS LORDSHIP EXPRESSED THE HOPE THAT WHAT HE HAD SAID AND WHAT WOULD BE
SAID WOULD BE THE MEANS OF PUTTING A STOP TO THIS KIND OF THING.  THE
ORDER OF THE COURT WAS THAT MR. PERRIS 

SHOULD PAY TO THE COURT $*200 AND THE COSTS, AND THAT HE SHOULD BE
IMPRISONED UNTIL THE SUM WAS PAID (PP. 34-35)." 

5.  REX V. ASTOR, 30 T.L.R. 10(K.B. 1913)(RIDLEY, SCRUTTON AND
BAILHACHE JJ.).  RULES NISI FOR CONTEMPT OF COURT FOR COMMENTS IN THE
PALL MALL GAZETTE AND THE GLOBE ABOUT A TRIAL FOR CRIMINAL LIBEL AND A
PRIVATE SHAREHOLDERS' SUIT, BOTH RELATING TO THE SAME PERSON AND TO THE
SAME TRANSACTION.  THE PROCEEDINGS ARE REPORTED IN PART AS FOLLOWS: 

"COUNSEL CONTINUING SAID THAT IF THE RULE WAS MADE ABSOLUTE IT WOULD
AMOUNT TO AN EMBARGO ON THE PRESS, WHEN A TRIAL WAS PENDING, FROM
PUBLISHING ANY ITEM OF NEWS WHICH COULD IN ANY WAY BE THOUGHT TO
PREJUDICE THE TRIAL.  IT WOULD BE A VERY POOR COMPLIMENT TO THE JURY TO
SUPPOSE THAT THEY WOULD BE INFLUENCED BY THE PARAGRAPH. 

.         .         .         .         . 

"MR. JUSTICE SCRUTTON (REFERRING TO THE GAZETTE) SAID THAT IF A PAPER
TOOK UPON ITSELF TO MIX UP TOGETHER THE REPORTS OF CRIMINAL PROCEEDINGS
AND OF CIVIL PROCEEDINGS RELATING TO THE SAME SHARE TRANSACTION, HE
COULD COME TO NO OTHER CONCLUSION THAN THAT IT MIGHT TEND TO PREJUDICE
THE JURY TRYING THE CASE, WHO WERE NOT TRAINED LAWYERS ABLE TO
DISTINGUISH THE EXACT RELEVANCE OF A CHARGE OF THAT KIND.  BUT HE
AGREED THAT, HAVING MADE AMPLE APOLOGIES, THE RESPONDENTS NEED ONLY PAY
THE COSTS (P. 12)." 

WITH RESPECT TO THE COMMENTS IN THE GLOBE THE RULE WAS DISCHARGED
WITHOUT COSTS, SINCE THE COMMENTS ON THE CRIMINAL AND CIVIL PROCEEDINGS
WERE PRINTED IN SEPARATE PORTIONS OF THE PAPER. 

6.  REX V. J.G. HAMMOND & CO., 30 T.L.R. 491(K.B. 1914)(DARLING,
AVORY AND ROWLATT JJ.).  RULE NISI FOR CONTEMPT OF COURT FOR THE
PUBLICATION OF COMMENTS ON A PROSECUTION FOR PERJURY THEN IN PROGRESS
BEFORE THE MAGISTRATE: 

"DEALING WITH THE MAIN QUESTION IN THE CASE, HE (MR. JUSTICE DARLING)
SAID HE COULD NOT ENTERTAIN THE SLIGHTEST DOUBT THAT THE COMMENTS MADE
IN MODERN SOCIETY WERE A CONTEMPT OF COURT.  IT SEEMED TO HIM THAT THEY
WERE ABSOLUTELY INTENDED TO DAMAGE THE PROSECUTOR, SIR J. B. ROBINSON,
AND TO GLORIFY AND EXTOL MR. LOUIS COHEN.  THAT BEING SO THEY WERE
CLEARLY CALCULATED TO PREJUDICE THE CONDUCT OF THE TRIAL, AND WERE
THEREFORE A CONTEMPT OF COURT.  HE COULD NOT ACCEPT AS SINCERE THE
EXPRESSIONS OF REGRET MADE BY THE TWO COMPANIES AND BY MR. HARRIS IN
THE AFFIDAVITS READ TO THEM.  THE JUDGMENT OF THE COURT WOULD BE THAT
MR. HARRIS MUST PAY A FINE OF $*50 AND THE COSTS OF THE PROCEEDINGS. 
HARRIS WAS OUT OF THE JURISDICTION AT PRESENT AND IT WAS NECESSARY THAT
THE ORDER OF THE COURT SHOULD BE IN A PARTICULAR FORM.  THE RULE WOULD
BE MADE ABSOLUTE AGAINST HIM, BUT THE WRIT OF ATTACHMENT WOULD BE
SUPERSEDED IF HE PAID THE FINE OF $*50.  WITH REGARD TO THE TWO LIMITED
COMPANIES, IN THEIR JUDGMENT THERE WAS NOTHING TO BE SAID IN MITIGATION
OF THE OFFENCE WHICH THEY HAD COMMITTED, AND THE ORDER WITH REGARD TO
EACH WOULD BE THAT THEY MUST PAY A FINE OF $*50 AND THE COSTS OF THE
PROCEEDINGS, THE FINE TO BE LEVIED UPON THE GOODS OF THE RESPECTIVE
COMPANIES (P. 492)."    7.  REX V. EDITOR AND PRINTERS AND PUBLISHERS
OF THE EVENING STANDARD, 40 T.L.R. 833(K.B. 1924)(LORD HEWART C.J.,
ROCHE AND BRANSON JJ.).  RULES NISI FOR CONTEMPT OF COURT BASED UPON
STATEMENTS PRINTED IN THREE NEWSPAPERS, THE EVENING STANDARD,
MANCHESTER GUARDIAN AND DAILY EXPRESS.  THE STANDARD HAD HIRED AMATEUR
DETECTIVES TO INVESTIGATE A KILLING AND PUBLISHED WHAT WAS UNCOVERED AT
A TIME WHEN A CHARGE OF MURDER HAD BEEN MADE AND A TRIAL WAS TO TAKE
PLACE.  THE JUDGMENT OF THE COURT WAS DELIVERED THROUGH THE LORD CHIEF
JUSTICE AND REPORTED IN PART AS FOLLOWS: 

"IT WAS URGED ON BEHALF OF ONE RESPONDENT ON THE PREVIOUS DAY THAT IT
WAS PART OF THE DUTY OF A NEWSPAPER WHEN A CRIMINAL CASE WAS PENDING TO
ELUCIDATE THE FACTS.  IF HE UNDERSTOOD THAT SUGGESTION WHEN CLEARLY
EXPRESSED IT CAME TO SOMETHING LIKE THIS; THAT WHILE THE POLICE OR THE
CRIMINAL INVESTIGATION DEPARTMENT WERE TO PURSUE THEIR INVESTIGATIONS
IN SILENCE AND WITH ALL RETICENCE AND RESERVE, BEING CAREFUL TO SAY
NOTHING TO PREJUDICE THE TRIAL OF THE CASE, WHETHER FROM THE POINT OF
VIEW OF THE PROSECUTION OR THE POINT OF VIEW OF THE DEFENCE, IT HAD
COME TO BE SOMEHOW FOR SOME REASON THE DUTY OF NEWSPAPERS TO EMPLOY AN
INDEPENDENT STAFF OF AMATEUR DETECTIVES, WHO WOULD BRING TO AN
IGNORANCE OF THE LAW OF EVIDENCE A COMPLETE DISREGARD OF THE INTERESTS
WHETHER OF THE PROSECUTION OR THE DEFENCE.  THEY WERE TO CONDUCT THEIR
INVESTIGATION UNFETTERED, TO PUBLISH TO THE WHOLE WORLD FROM TIME TO
TIME THE RESULTS OF THESE INVESTIGATIONS, WHETHER THEY CONCEIVED THEM
TO BE SUCCESSFUL OR UNSUCCESSFUL RESULTS, AND BY SO DOING TO PERFORM
WHAT WAS REPRESENTED AS A DUTY, AND, ONE COULD NOT HELP THINKING, TO
CATER FOR THE PUBLIC APPETITE FOR SENSATIONAL MATTER. 

"IT WAS NOT POSSIBLE FOR THAT COURT, NOR HAD IT ANY INCLINATION, TO
SUGGEST TO THE RESPONSIBLE EDITORS OF THOSE NEWSPAPERS WHAT WERE THE
LINES ON WHICH THEY OUGHT TO PROCEED.  ANY SUCH TASK AS THAT WAS
ENTIRELY BEYOND THE PROVINCE OF THAT OR ANY OTHER TRIBUNAL.  THOSE WHO
HAD TO JUDGE BY THE RESULTS COULD SEE WHAT A PERILOUS ENTERPRISE THIS
KIND OF PUBLICATION WAS.  IT WAS NOT POSSIBLE EVEN FOR THE MOST
INGENIOUS MIND TO ANTICIPATE WITH CERTAINTY WHAT WERE TO BE THE REAL
ISSUES, TO SAY NOTHING OF THE MORE DIFFICULT QUESTION WHAT WAS TO BE
THE RELATIVE IMPORTANCE OF DIFFERENT ISSUES IN A TRIAL WHICH WAS ABOUT
TO TAKE PLACE.  IT MIGHT BE THAT A DATE, A PLACE, OR A LETTER, OR SOME
OTHER ONE THING WHICH, CONSIDERED IN ITSELF, LOOKED TRIVIAL, MIGHT
PROVE IN THE END TO BE A MATTER OF PARAMOUNT IMPORTANCE.  IT WAS
IMPOSSIBLE TO FORESEE WHAT WAS IMPORTANT (P. 835). 

.         .         .         .         . 

"HIS LORDSHIP ADDED THAT IN ALL THE CASES THE FINES WOULD BE
INCREASED BY THE PAYMENT OF COSTS.  HE SAID THAT NOBODY WHO KNEW
ANYTHING OF THE ORGANIZATION AND MANAGEMENT OF A NEWSPAPER OFFICE COULD
BE IGNORANT OF THE FACT THAT THE WORK OF NEWSPAPERS WAS VERY OFTEN DONE
IN CIRCUMSTANCES OF GREAT HURRY BY MANY DIFFERENT MINDS NOT ALWAYS
FULLY AWARE OF WHAT OTHERS MIGHT BE DOING.  THE RESULT WAS A COMPOSITE
THING, BUT THERE MUST BE CENTRAL RESPONSIBILITY.  IT WAS IMPOSSIBLE TO
SAY THAT MEN OCCUPYING RESPONSIBLE POSITIONS SHOULD BE EXCUSED BECAUSE
THEY THEMSELVES WERE NOT PERSONALLY AWARE OF WHAT WAS BEING DONE.  THE
PRACTICE WAS REALLY BECOMING PREVALENT, AND IT WAS QUITE OBVIOUS THAT
THERE WERE THOSE WHO THOUGHT THAT PUBLICATIONS OF THIS KIND WERE NOT
ONLY LEGITIMATE, BUT EVEN COMMENDABLE.  IN THE HOPE THAT THAT DAY'S
PROCEEDINGS WOULD SHOW THAT IN THE OPINION OF THAT COURT THAT VIEW WAS
ENTIRELY WRONG, THE COURT HAD MERELY IMPOSED A FINE, BUT IF THE
PRACTICE WERE REPEATED THE COURT WOULD NOT AGAIN BE DISPOSED TO ADOPT
THAT MERCIFUL ALTERNATIVE (P. 836)." 

THE RULES WERE MADE ABSOLUTE, AND FINES IMPOSED OF $*1,000 FOR THE
ACTS OF THE EVENING STANDARD AND $*300 EACH FOR THE STATEMENTS IN THE
MANCHESTER GUARDIAN AND DAILY EXPRESS. 

8.  REX V. EDITOR, PRINTERS AND PUBLISHERS OF THE DAILY HERALD, 75
SOL.  J. 119(K.B. 1931)(LORD HEWART C.J., AVORY AND MACKINNON JJ.). 
RULE NISI FOR CONTEMPT FOR PUBLISHING A POSTER, WHICH IN FACT RELATED
TO ANOTHER CASE, CONTAINING THE WORDS "ANOTHER BLAZING CAR MURDER" AT A
TIME WHEN AN ACCUSED STOOD COMMITTED FOR TRIAL ON THE CHARGE OF MURDER
OF A MAN IN A MOTOR CAR FOUND BURNED UP.  AS IS THE PRACTICE IN ALL
THESE CASES THE RESPONDENTS TENDERED FULL APOLOGY TO THE COURT.  IN
DELIVERING THE JUDGMENT, LORD HEWART C.J. STATED THAT THE POSTER WORDS
MIGHT SUGGEST THAT THE ACCUSED HAD COMMITTED MURDER WHICH WAS THE ISSUE
THE JURY HAD TO DECIDE.  THE RULE WAS MADE ABSOLUTE, BUT ONLY COSTS
WERE ASSESSED. 

9.  REX V. EDITOR, PRINTER AND PUBLISHER OF THE SURREY COMET, 75
SOL.  J. 311(K.B. 1931)(LORD HEWART C.J., AVORY AND HUMPHREYS JJ.). 
RULE NISI FOR CONTEMPT OF COURT.  THE JUDGMENT OF THE COURT IS
SUMMARIZED AS FOLLOWS: 

"LORD HEWART, C.J., SAID THAT THE POINT WAS WHETHER SOMETHING HAD
BEEN PUBLISHED WHICH MIGHT PREJUDICE THE TRIAL OF AN ACCUSED MAN.  IN
THE ARTICLE COMPLAINED OF THERE WAS A LONG ACCOUNT, CAREFULLY GOT
TOGETHER, WHICH INCLUDED AT LEAST THREE STATEMENTS OF GRAVE PREJUDICE
AGAINST THE MAN WHO AFTERWARDS WAS CHARGED.  A NEWSPAPER WAS ENTITLED
TO REPORT, FAIRLY AND ACCURATELY, WHAT TOOK PLACE IN OPEN COURT, BUT,
IN THE PRESENT CASE, EX CONCESSIO, NOTHING HAD TAKEN PLACE IN COURT,
AND THERE WAS NO QUESTION OF REPORTING PROCEEDINGS IN COURT.  THE
NEWSPAPER HAD BUSIED ITSELF IN THE DEPLORABLE ENTERPRISE OF COLLECTING
MATERIALS WHICH MIGHT BE THOUGHT TO BE OF INTEREST CONCERNING THAT
WHICH HAD BEEN DONE AND THE PERSON WHO, IT WAS EXPECTED, WOULD BE
ACCUSED.  ONCE A NEWSPAPER DEPARTED FROM A FAIR AND ACCURATE REPORT OF
WHAT WAS ACTUALLY STATED IN OPEN COURT IT NOT ONLY TOOK A GREAT RISK
ITSELF, BUT IT ALSO IMPERILLED THE UNFORTUNATE MAN, GUILTY OR INNOCENT,
WHO WAS CHARGED.  FOR WHAT HAD BEEN DONE IN THE PRESENT CASE THERE WAS
NO CONCEIVABLE EXCUSE.  HIS LORDSHIP ADDED THAT IF THAT KIND OF CYNICAL
INDIFFERENCE FOR THE INTERESTS OF ACCUSED PERSONS CONTINUED TO BE
DISPLAYED, CASES WOULD NOT BE MET BY THE IMPOSITION OF FINES.  HE HOPED
THAT THE CASE WOULD HAVE THE EFFECT OF ATTRACTING THE ATTENTION OF
PROFESSIONAL JOURNALISTS TO THE UTTER IMPROPRIETY OF AN ENTERPRISE OF
THAT CHARACTER.  THE RULE WOULD BE MADE ABSOLUTE AGAINST THE EDITOR OF
THE NEWSPAPER, THE COSTS PAID AS BETWEEN SOLICITOR AND CLIENT, AND THE
EDITOR WOULD BE FINED $*500(PP. 311-12)." 

10.  REX V. HUTCHISON, (1936) 2 ALL ENG. 1514(K.B.)(SWIFT, HUMPHREYS
AND GODDARD JJ.).  RULES NISI FOR CONTEMPT OF COURT FOR SHOWING A NEWS
FILM OF THE ARREST OF A MAN, SUBSEQUENTLY CHARGED WITH UNLAWFUL
POSSESSION OF FIREARMS, WITH THE CAPTION:  "ATTEMPT ON THE KING'S
LIFE."  THE ARREST HAD BEEN MADE AFTER A REVOLVER FELL CLOSE TO THE
KING'S HORSE DURING A PROCESSION IN WHICH THE KING WAS RIDING, AND IT
WAS WIDELY FEARED THAT AN ATTEMPT HAD BEEN MADE ON THE KING'S LIFE. 
SWIFT J. DELIVERED THE JUDGMENT OF THE COURT MAKING THE RULES ABSOLUTE
ON THE GROUND THAT THE CAPTION WAS LIKELY TO BRING ABOUT "DERANGEMENT
IN THE CARRIAGE OF JUSTICE" (P. 1515).  BECAUSE OF THEIR APOLOGIES ONLY
COSTS WERE ASSESSED AGAINST SOME RESPONDENTS, BUT ANOTHER WAS FINED
$*50 AND COSTS "TO MARK THE COURT'S DISAPPROVAL OF THEIR CONDUCT" (P.
1515). 

11.  REX V. EDITOR, PRINTERS AND PUBLISHERS OF THE EVENING NEWS, THE
TIMES (LONDON), JULY 30, 1936, P. 4, COL. 3(K.B.)(SWIFT, HUMPHREYS AND
GODDARD JJ.).  RULE NISI FOR CONTEMPT OF COURT FOR PUBLISHING ARTICLES
DESCRIBING AS A "CRANK" AND A PERSON REGARDED BY THE POLICE AS A
"HARMLESS LUNATIC NURSING A GRIEVANCE" SOMEONE UNDER ARREST FOR
UNLAWFUL POSSESSION OF FIREARMS.  HE WAS THE SAME ACCUSED ABOUT WHOM
THE NEWS FILM IN REX V. HUTCHISON, SUPRA, WAS SHOWN.  THE COURT'S
DECISION IS SUMMARIZED AS FOLLOWS: 

"MR. JUSTICE SWIFT, IN GIVING JUDGMENT, SAID THAT PROCEEDINGS FOR
CONTEMPT OF COURT WERE NOT TAKEN TO VINDICATE THE DIGNITY OF THE COURT
OR THE PERSON OF A JUDGE, BUT TO PREVENT UNDUE INTERFERENCE WITH THE
ADMINISTRATION OF JUSTICE.  IT WAS ESSENTIAL THAT WHEN A CRIMINAL
CHARGE WAS MADE AGAINST ANY ONE THERE SHOULD BE NO TAMPERING OF ANY
SORT OR KIND WITH THOSE WHO WOULD ULTIMATELY HAVE TO DECIDE THE
MATTER. 

"IT WAS NOT DISPUTED THAT THE ARTICLE COMPLAINED OF WAS A GROSS
CONTEMPT OF COURT IN THE SENSE THAT IT WAS BOUND TO INFLUENCE THE MINDS
OF THOSE WHO READ IT AGAINST THE MAN WHO WAS ACCUSED OF A CRIME BEFORE
HE COULD BE BROUGHT TO TRIAL. 

"THE COURT THOUGHT THAT IT WAS AN EXTREMELY SERIOUS MATTER; BUT IT
TOOK INTO ACCOUNT THE UNQUALIFIED, UNRESERVED, AND SINCERE APOLOGY
WHICH HAD BEEN MADE FOR WHAT HAD BEEN DONE.  THE COURT ALSO RECOGNIZED
THAT THERE MIGHT HAVE BEEN CIRCUMSTANCES WHICH ALLEVIATED PART, BUT
ONLY PART, OF WHAT HAD BEEN PUBLISHED.  NO REGARD SEEMED TO HAVE BEEN
PAID BY THE NEWSPAPER TO THE POSITION OF THE ACCUSED MAN AT ALL.  HIS
STATE OF MIND, HIS CONDUCT IN THE PAST, THE NAMES UNDER WHICH HE HAD
GONE, WHETHER THE STATEMENTS MADE WERE TRUE OR UNTRUE, WERE ALL PUT
BEFORE THE PUBLIC AND THOSE MEMBERS OF THE PUBLIC WHO WOULD ULTIMATELY
FORM THE TRIBUNAL TO TRY HIM. 

"THE JUDGMENT OF THE COURT WOULD BE THAT THE RULE SHOULD BE MADE
ABSOLUTE AND THAT THE EDITOR AND THE PRINTERS AND PUBLISHERS OF THE
NEWSPAPER SHOULD EACH BE FINED $*500, AND BE ORDERED TO PAY THE COSTS
OF THE APPLICATION." 

12.  KING V. DAILY MIRROR, (1927) 1 K.B. 845.  RULES NISI FOR
CONTEMPT OF COURT FOR PUBLISHING IN A NEWSPAPER THE PHOTOGRAPH OF A
PERSON CHARGED WITH A CRIMINAL OFFENSE.  THE BEARING OF SUCH
PUBLICATION ON THE FAIRNESS OF A LATER TRIAL IS SUFFICIENTLY INDICATED
IN THE JUDGMENT OF LORD HEWART C.J., WITH WHOM AVORY AND TALBOT JJ.
CONCURRED: 

"THE PHRASE 'CONTEMPT OF COURT,' AS HAS BEEN OBSERVED MORE THAN ONCE,
IS, IN RELATION TO THE KIND OF SUBJECT-MATTER WITH WHICH WE ARE NOW
CONCERNED, A LITTLE MISLEADING.  THE MISCHIEF REFERRED TO CONSISTS, NOT
IN SOME ATTITUDE TOWARDS THE COURT ITSELF, BUT IN CONDUCT TENDING TO
PREJUDICE THE POSITION OF AN ACCUSED PERSON.  IN OTHER WORDS, WHAT IS
REALLY IN QUESTION IS NOTHING ATTACKING THE STATUS OF THE COURT AS A
COURT, BUT SOMETHING WHICH MAY PROFOUNDLY AFFECT THE RIGHTS OF CITIZENS
(P. 847). 

.         .         .      .         . 

"NOBODY WOULD EXCUSE A POLICE OFFICER IN THE CONDUCT OF A CASE IF,
COLLECTING TOGETHER ALL THE VARIOUS PERSONS AMONG WHOM IDENTIFYING
WITNESSES MIGHT BE FOUND, HE SAID:  'I HAVE ARRESTED A MAN, AND I AM
GOING TO PUT HIM UP FOR IDENTIFICATION BY YOU,' AND THEN SHOWED TO
THOSE PERSONS A PHOTOGRAPH OF THE SUSPECTED PERSON.  THE UNFAIRNESS OF
THAT COURSE IS MANIFEST, BECAUSE THE WITNESS APPROACHES THE DIFFICULT
AND IT MAY BE THE CRUCIAL TASK OF IDENTIFICATION WITH HIS MIND
PREJUDICED BY THE KNOWLEDGE THAT THIS PARTICULAR PERSON HAS BEEN
ARRESTED AND IS IN THE HANDS OF THE POLICE.  WHAT DOES A NEWSPAPER DO
WHEN IT PRINTS A PHOTOGRAPH IN THESE CIRCUMSTANCES?  IT INVITES THE
WHOLE COUNTRY TO SCRUTINIZE THE FEATURES OF THE ACCUSED WHO HAS BEEN
ARRESTED.  THAT IT DOES THAT ACT NOT IN THE COURSE OF PREPARATION OF
THE CASE FOR THE PROSECUTION BUT MERELY IN THE COURSE OF THE CONDUCT OF
A MONEY-MAKING BUSINESS DOES NOT EXCUSE IN A NEWSPAPER THAT WHICH WOULD
BE REPREHENSIBLE IN A POLICE OFFICER.  IN MY OPINION, IN THE
PUBLICATION OF A PHOTOGRAPH NO LESS THAN IN NARRATIVE, IT IS THE DUTY
OF A NEWSPAPER TO TAKE CARE TO AVOID PUBLISHING THAT WHICH IS
CALCULATED TO PREJUDICE A FAIR TRIAL.  TO APPROACH THE MATTER IN A MOOD
OF CYNICAL INDIFFERENCE IS OBVIOUSLY WRONG.  THERE IS A DUTY TO TAKE
CARE LEST, BY THE PUBLICATION OF MATTER, WHETHER IN THE FORM OF A
PHOTOGRAPH OR OF PRINTED WORDS, PREJUDICE SHOULD BE CAUSED TO A PERSON
ABOUT TO STAND HIS TRIAL.  THAT OF COURSE DOES NOT MEAN, NOR AM I FOR A
MOMENT SUGGESTING, THAT A NEWSPAPER IS NOT ENTITLED IN ANY
CIRCUMSTANCES TO PUBLISH A PHOTOGRAPH OF A PERSON WHO IS A PARTY TO
EITHER CIVIL OR CRIMINAL PROCEEDINGS.  BUT I AM NO LESS CLEAR UPON THE
POINT THAT THERE IS A DUTY TO REFRAIN FROM THE PUBLICATION OF THE
PHOTOGRAPH OF AN ACCUSED PERSON WHERE IT IS APPARENT TO A REASONABLE
MAN THAT A QUESTION OF IDENTITY MAY ARISE.  IF IN THESE CIRCUMSTANCES A
NEWSPAPER PRINTS A PHOTOGRAPH IT IS TAKING A GRAVE RISK, WHICH IN ONE
SENSE AFFECTS THE ACCUSED PERSON, AND IN ANOTHER SENSE AFFECTS THE
NEWSPAPER (PP. 849-50)." 

THE RULES WERE MADE ABSOLUTE, BUT, SINCE THIS WAS THE FIRST OCCASION
UPON WHICH THE QUESTION AROSE WITH RESPECT TO THE PUBLICATION OF A
PHOTOGRAPH OF AN ACCUSED PERSON, ONLY COSTS WERE ASSESSED. 

13.  THE TIMES (LONDON), MAR. 26, 1949, P. 3, COL. 1, REPORTED THE
RECENT CASE ARISING OUT OF THE PROSECUTION OF HAIGH, THE SO-CALLED
BLUEBEARD, AS FOLLOWS: 

"A DIVISIONAL COURT OF THE KING'S BENCH - THE LORD CHIEF JUSTICE
(GODDARD), MR. JUSTICE HUMPHREYS, AND MR. JUSTICE BIRKETT - YESTERDAY,
ON THE TWO MOTIONS FOR WRITS OF ATTACHMENT FOR CONTEMPT OF COURT MADE
ON BEHALF OF JOHN GEORGE HAIGH (WHO IS AT PRESENT IN CUSTODY ON A
CHARGE OF MURDERING MRS. OLIVE DURAND-DEACON) AGAINST MR. SILVESTER
BOLAM, THE EDITOR OF THE DAILY MIRROR, AND DAILY MIRROR NEWSPAPERS,
LIMITED, THE COURT ORDERED THAT MR. BOLAM SHOULD BE COMMITTED TO PRISON
FOR THREE CALENDAR MONTHS AND THAT THE COMPANY SHOULD PAY A FINE OF
$*10,000 AND THE COSTS OF THE PROCEEDINGS. 

.         .         .         .         . 

"THE LORD CHIEF JUSTICE, DELIVERING THE JUDGMENT OF THE COURT, SAID
THAT SIR WALTER MONCKTON HAD MOVED FOR A WRIT OF ATTACHMENT AGAINST MR.
SILVESTER BOLAM, THE EDITOR OF THE DAILY MIRROR, FOR CONTEMPT OF
COURT.  IN VIEW OF THE GRAVITY OF THE CASE THE COURT DIRECTED THAT THE
PROPRIETORS OF THE NEWSPAPER, A LIMITED COMPANY, DAILY MIRROR
NEWSPAPERS, LIMITED, SHOULD ALSO BE SUMMONED BEFORE THE COURT TO ANSWER
FOR THE CONTEMPT COMMITTED BY THE PUBLICATION IN THE NEWSPAPER OF THE
MATTERS COMPLAINED OF.  IT APPEARED THAT A MAN NAMED HAIGH HAD BEEN
ARRESTED AND CHARGED WITH MURDER.  HE HAD BEEN BROUGHT BEFORE THE
EXAMINING JUSTICES AT HORSHAM AND THE CASE HAD NOT YET BEEN OPENED.  NO
MORE WAS KNOWN THAN THAT HE HAD BEEN CHARGED WITH MURDER.    "ON MARCH
4 THREE ISSUES OF THE DAILY MIRROR WERE PUBLISHED - THREE SEPARATE
EDITIONS.  THOSE EDITIONS CONTAINED ARTICLES, PHOTOGRAPHS, AND
HEADLINES IN THE LARGEST POSSIBLE TYPE, OF A CHARACTER WHICH THE COURT
COULD ONLY DESCRIBE AS A DISGRACE TO ENGLISH JOURNALISM AS VIOLATING
EVERY PRINCIPLE OF JUSTICE AND FAIR PLAY WHICH IT HAD BEEN THE PRIDE OF
THIS COUNTRY TO EXTEND TO THE WORST OF CRIMINALS. 

"'TO USE THE LANGUAGE OF LORD HARDWICKE IN 1742, IN THE CASE OF THE
ST. JAMES'S EVENING POST - IT IS A CASE OF PREJUDICING MANKIND AGAINST
PERSONS BEFORE THEIR CASE IS HEARD.' 

"ANY ONE WHO HAD HAD THE MISFORTUNE, AS THE MEMBERS OF THE COURT HAD,
TO READ THE ARTICLES MUST BE LEFT WONDERING HOW IT COULD BE POSSIBLE
FOR THIS MAN TO OBTAIN A FAIR TRIAL AFTER WHAT HAD BEEN PUBLISHED.  NOT
ONLY DID THE ARTICLES DESCRIBE HIM AS A VAMPIRE AND GIVE REASONS FOR
THAT DESCRIPTION OF HIM, BUT, AFTER SAYING THAT HE HAD BEEN CHARGED
WITH ONE MURDER, THEY WENT ON TO SAY NOT MERELY THAT HE WAS CHARGED
WITH OTHER MURDERS BUT THAT HE HAD COMMITTED OTHERS AND GAVE THE NAMES
OF PERSONS WHOM, THEY SAID, HE HAD MURDERED.  A PHOTOGRAPH WAS GIVEN OF
A PERSON WHOM HE WAS SAID TO HAVE MURDERED, WITH A DESCRIPTION OF THE
WAY IN WHICH THE CRIME WAS COMMITTED. 

"IN THE LONG HISTORY OF THE PRESENT CLASS OF CASE THERE HAD NEVER, IN
THE OPINION OF THE COURT, BEEN ONE OF SUCH GRAVITY AS THIS, OR ONE OF
SUCH A SCANDALOUS AND WICKED CHARACTER.  IT WAS OF THE UTMOST
IMPORTANCE THAT THE COURT SHOULD VINDICATE THE COMMON PRINCIPLES OF
JUSTICE AND, IN THE PUBLIC INTEREST, SEE THAT CONDIGN PUNISHMENT WAS
METED OUT TO PERSONS GUILTY OF SUCH CONDUCT.  IN THE OPINION OF THE
COURT WHAT HAD BEEN DONE WAS NOT THE RESULT OF AN ERROR OF JUDGMENT BUT
WAS DONE AS A MATTER OF POLICY IN PANDERING TO SENSATIONALISM FOR THE
PURPOSE OF INCREASING THE CIRCULATION OF THE NEWSPAPER. 

"AFTER IT HAD COME TO THE KNOWLEDGE OF THE COMMISSIONER OF POLICE
THAT THE DAILY MIRROR OR SOME OTHER PAPER MIGHT BE LIKELY TO PUBLISH
SOME DETAILS OF THE CASE, IN THE COURSE OF THE EVENING A WARNING WAS
SENT FROM THE OFFICE OF THE COMMISSIONER OF POLICE TO THIS NEWSPAPER. 
THAT THAT HAD ANY REAL EFFECT ON THIS NEWSPAPER, IN SPITE OF WHAT HAD
BEEN SAID IN THE AFFIDAVIT, IT WAS DIFFICULT TO BELIEVE.  IT WAS TRUE
THAT THERE WAS SOME, BUT VERY LITTLE, ALTERATION IN THE LAST EDITION. 
THAT EDITION WAS ITSELF A GROSS CONTEMPT, NOT PERHAPS QUITE SO BAD AS
THE OTHER TWO WHICH HAD BEEN ISSUED.  THE FACT THAT THE POLICE HAD
GIVEN A WARNING DID NOT AFFECT THE QUESTION ONE WAY OR THE OTHER.  IT
WAS AN OFFENCE WHETHER NOTICE HAD BEEN GIVEN OR NOT.  IT MIGHT
AGGRAVATE THE CASE THAT MORE ATTENTION WAS NOT PAID TO THE WARNING. 

"AS HE HAD SAID, IN VIEW OF THE GRAVITY OF THE CASE THE COURT HAD
ORDERED THE PROPRIETORS OF THE NEWSPAPER TO BE BROUGHT BEFORE THE
COURT.  HE WOULD ADD A WORD OF WARNING:  LET THE DIRECTORS BEWARE; THEY
KNEW NOW THE CONDUCT OF WHICH THEIR EMPLOYEES WERE CAPABLE, AND THE
VIEW WHICH THE COURT TOOK OF THE MATTER.  IF FOR THE PURPOSE OF
INCREASING THE CIRCULATION OF THEIR PAPER THEY SHOULD AGAIN VENTURE TO
PUBLISH SUCH MATTER AS THIS, THE DIRECTORS THEMSELVES MIGHT FIND THAT
THE ARM OF THAT COURT WAS LONG ENOUGH TO REACH THEM AND TO DEAL WITH
THEM INDIVIDUALLY.  THE COURT HAD TAKEN THE VIEW THAT THERE MUST BE
SEVERE PUNISHMENT. 

"HIS LORDSHIP THEN CALLED ON MR. BOLAM TO STAND UP, AND, ADDRESSING
HIM, SAID:  "THE WRIT OF ATTACHMENT WILL BE ISSUED, AND YOU WILL BE
TAKEN IN THE CUSTODY OF THE TIPSTAFF AND COMMITTED TO BRIXTON PRISON
FOR THREE CALENDAR MONTHS.' 

"CONTINUING, HIS LORDSHIP SAID THAT THE RESPONDENT COMPANY WOULD BE
FINED $*10,000 AND PAY THE COSTS OF THE PROCEEDINGS."  FN1 

B. CASES FINDING NO CONTEMPT. 

1.  REX V. EDITOR AND PUBLISHERS OF THE PEOPLE, THE TIMES (LONDON),
APRIL 7, 1925, P. 5, COL. 4(K.B.)(LORD HEWART C.J., SHEARMAN AND SALTER
JJ.).  RULE FOR CONTEMPT FOR PUBLICATION OF ARTICLES ACCUSING ONE HOBBS
OF DIABOLICAL ROGUERY AND CALLING HIM THE "WIZARD CROOK OF THE
UNDERWORLD."  THE ARTICLES WERE PUBLISHED AFTER HOBBS' CONVICTION FOR
CONSPIRACY TO DEFRAUD ANOTHER, BUT IT WAS ALLEGED THAT THEY WERE
CALCULATED TO PREJUDICE THE HEARING OF THE APPEAL.  THE RELEVANT PART
OF THE JUDGMENT IS REPORTED AS FOLLOWS: 

"THE LORD CHIEF JUSTICE, IN HIS JUDGMENT, SAID THAT THE ARGUMENT HAD
TRAVELLED OVER VARIOUS MATTERS WHICH IN HIS OPINION DID NOT ARISE UPON
THIS RULE, THE SOLE GROUND OF WHICH WAS THAT THE ARTICLES WERE
CALCULATED TO PREJUDICE THE FAIR HEARING OF THE APPEAL. 

.    .         .         .         . 

"THE COURT, CONTINUED HIS LORDSHIP, IS NOT A SCHOOL OF TASTE; HOWEVER
DEPLORABLE, HOWEVER DISGUSTING THESE ARTICLES MAY BE, OR BE THOUGHT TO
BE, THE QUESTION OF CENSURE TO BE PASSED ON THEM BY MEN OF TASTE OR MEN
OF DISCRETION DOES NOT ARISE.  THE ONLY QUESTION IS WHETHER THEY ARE
CALCULATED TO PREJUDICE THE FAIR HEARING OF THE APPEAL.  IN MY OPINION,
WHATEVER MAY BE THE REMEDIES OF HOBBS OTHERWISE, OR THE VIEWS OF A
CENSOR MORUM OR TASTEFUL CRITIC ABOUT THESE ARTICLES, THEY DO NOT COME
WITHIN THIS BRANCH OF THE LAW OF CONTEMPT, AND THE RULE WILL BE
DISCHARGED." 

2.  REX V. EDITOR OF THE DAILY MAIL, 44 T.L.R. 303(K.B. 1928)(LORD
HEWART C.J., AVORY AND BRANSON JJ.).  RULE NISI FOR CONTEMPT OF COURT
WITH RESPECT TO AN ARTICLE IN THE DAILY MAIL COMMENTING ON A SUIT FOR
LIBEL  FN2  BY ONE FACTOR AGAINST THE NEWSPAPER BASED ON AN EARLIER
ARTICLE PUBLISHED THEREIN.  THE ARTICLE AS TO WHICH CONTEMPT WAS
CHARGED CONTAINED MATERIAL WHICH HAD FREQUENTLY APPEARED IN PRIOR
ISSUES OF THE PAPER, BUT DID NOT TOUCH ON THE ISSUE OF FACT IN THE
LIBEL PROCEEDING.  THE JUDGMENT OF THE COURT DISCHARGING THE RULE WAS
DELIVERED BY THE LORD CHIEF JUSTICE AND REPORTED IN PART AS FOLLOWS: 

"THE COURT WAS NOT SATISFIED THAT THE ARTICLE OF DECEMBER 23 - COMING
AS IT DID, AFTER A LONG SERIES OF SIMILAR ARTICLES, BEING BUT A
REPETITION OF CHARGES ALREADY OFTEN MADE AGAINST FACTOR AND NOT
COMPLAINED OF, AND AVOIDING, AS IT DID, ANY FURTHER MENTION OF THE
ALLEGED ASSOCIATION OF FACTOR WITH MONTGOMERY - WAS CALCULATED TO
PREJUDICE THE TRIAL OF THE ONLY ISSUES WHICH FACTOR HAD CHOSEN TO RAISE
- NAMELY, THAT OF HIS ASSOCIATION WITH MONTGOMERY AND OF THE DAMAGES
WHICH HE SHOULD OBTAIN IF THAT ISSUE WERE FOUND IN HIS FAVOUR (P.
307)." 

3.  REX V. EDITOR, PRINTERS, AND PUBLISHERS OF NEWS OF THE WORLD, 48
T.L.R. 234(K.B. 1932)(LORD HEWART C.J., AVORY AND HAWKE JJ.).  RULE
NISI FOR CONTEMPT OF COURT FOR PUBLISHING PRIOR TO THE TRIAL WHAT
PURPORTED TO BE A STATEMENT OF THE DEFENSE WHICH WOULD BE MADE.  THE
JUDGMENT OF THE COURT DISCHARGING THE RULE WAS DELIVERED BY THE LORD
CHIEF JUSTICE AND REPORTED IN PART AS FOLLOWS: 

"NO DOUBT IN SOME CIRCUMSTANCES, AND IN SOME CASES, THE PUBLICATION
BEFOREHAND OF WHAT WAS SAID TO BE THE DEFENCE OF AN ACCUSED PERSON
MIGHT AMOUNT TO CONTEMPT OF COURT.  THEY WERE DEALING, HOWEVER, NOT
WITH GENERAL PRINCIPLES, BUT WITH THE QUESTION WHETHER THOSE WORDS CAME
WITHIN THE MISCHIEF AGAINST WHICH CONTEMPT PROCEEDINGS WERE DIRECTED. 
THEY NOW HAD IT FROM COUNSEL SUPPORTING THE RULE THAT LAST DECEMBER
SOMETHING OF THE SAME SORT HAD ACTUALLY BEEN SAID TO THE POLICE BY THE
ACCUSED MAN HIMSELF (PP. 234-35)." 

4.  REX V. DAVIES, (1945) 1 K.B. 435(HUMPHREYS AND OLIVER JJ.). 
APPLICATION FOR AN ORDER FOR A WRIT OF ATTACHMENT FOR CONTEMPT OF
COURT, BASED ON COMMENTS IN A NEWSPAPER ARTICLE ABOUT ONE CONVICTED OF
PROCURING MISCARRIAGE, MADE AFTER NOTICE OF APPEAL OF THE CONVICTION
HAD BEEN FILED.  THE MOTION WAS REFUSED ON THE GROUND THAT THE
PARTICULAR COMMENTS DID NOT AMOUNT TO A CONTEMPT OF COURT, BUT BOTH
HUMPHREYS AND OLIVER JJ. AGREED THAT THERE MIGHT BE CONTEMPT EVEN
THOUGH THE TRIAL HAD ENDED.  PORTIONS OF THEIR OPINIONS FOLLOW: 

"HUMPHREYS J. ...  CAN THE PUBLICATION OF ANY DEFAMATORY MATTER, OR
OF ANY MATTER WHICH WOULD AMOUNT TO A CONTEMPT OF COURT IF IT HAD BEEN
PUBLISHED BEFORE THE APPLICANT IN THE PRESENT CASE HAD BEEN TRIED BY A
JURY, BE SAID TO BE CALCULATED TO INTERFERE WITH THE DUE COURSE OF LAW
AND JUSTICE BY PREJUDICING THE FAIR HEARING OF THE APPLICANT'S APPEAL? 
IN CONSIDERING THIS QUESTION ONE MUST REMEMBER WHAT ARE THE POWERS OF
THE COURT OF CRIMINAL APPEAL.  IF THAT COURT EXISTED FOR THE SOLE
PURPOSE OF DECIDING QUESTIONS OF LAW WHICH COME BEFORE IT, THE ANSWER
TO THE QUESTION I PUT ABOVE MIGHT WELL BE IN THE NEGATIVE.  IT MIGHT BE
SAID THAT IT IS INCONCEIVABLE THAT ANY COURT CONSIDERING A PURE
QUESTION OF LAW COULD BE AFFECTED BY ANYTHING WRITTEN IN A NEWSPAPER
ABOUT THE CHARACTER OF ONE OF THE PARTIES IN A CIVIL OR CRIMINAL CASE. 
IT IS, INDEED, INCONCEIVABLE THAT IF ONE OF THE JUDGES OF SUCH A COURT
HAD HAPPENED TO HAVE READ THE PARTICULAR NEWSPAPER IN QUESTION, IT
COULD HAVE THE SMALLEST EFFECT ON HIM.  THOSE OBSERVATIONS, HOWEVER, DO
NOT APPLY IN THE CASE OF THE COURT OF CRIMINAL APPEAL.  THAT COURT HAS
MANY FUNCTIONS TO PERFORM.  ONE OF THE POWERS WHICH IT POSSESSES, AS
WAS DECIDED BY THE HOUSE OF LORDS IN CRANE V. DIRECTOR OF PUBLIC
PROSECUTIONS ((1921) 15 CR. APP. R. 183), IS THAT WHEN IT FINDS THAT
PROCEEDINGS ON AN INDICTMENT ARE FOR ANY REASON VOID, IT MAY ORDER A
TRIAL OF THE INDICTMENT IN QUESTION.  IT, THEREFORE, HAS THE POWER
WHICH USED TO EXIST IN THE COURT FOR THE CONSIDERATION OF CROWN CASES
RESERVED, OF AWARDING VENIRE DE NOVO.  THE EFFECT OF THAT IS THAT IN
ANY CASE COMING BEFORE IT THE COURT OF CRIMINAL APPEAL MAY DIRECT THAT
A JURY SHALL BE SWORN TO TRY THE ISSUE ON THE INDICTMENT WHICH HAS
NEVER PROPERLY BEEN TRIED.  IT IS, THEREFORE, QUITE A FALLACY TO TREAT
THIS CASE AS IF ALL THAT THE COURT OF CRIMINAL APPEAL COULD DO WITH
REGARD TO IT WOULD BE TO DECIDE A QUESTION OF LAW.  IT MAY BE TRUE IN A
SENSE THAT THEY ARE DECIDING A QUESTION OF LAW, BUT THE EFFECT OF THEIR
DECISION MAY BE THAT A JURY WILL HAVE TO TRY THE QUESTION OF FACT.  IT
FOLLOWS THAT ANY MATTER WHICH IS PUBLISHED BETWEEN THE DATE OF A
CONVICTION AND THE DATE OF THE HEARING BY THE COURT OF CRIMINAL APPEAL
MAY COME TO THE ATTENTION OF A JURYMAN WHO HAS TO TRY THE QUESTION OF
THE GUILT OR INNOCENCE OF SOME PERSON ON THE INDICTMENT IN RESPECT OF
WHICH VENIRE DE NOVO HAS BEEN AWARDED.  ...  THERE IS ANOTHER MATTER
REGARDING WHICH I DESIRE TO SAY A FEW WORDS.  I THINK IT IS A FALLACY
TO ASSUME THAT THE ONLY OBJECT OF IMPOSING PUNISHMENT FOR CONTEMPT OF
COURT IN A CRIMINAL CASE IS TO PREVENT A JURYMAN, WHO MAY BE TRYING THE
PERSON AFFECTED, FROM READING MATTER OF WHICH HE OUGHT TO KNOW
NOTHING.  THERE IS ALSO THE JUDGE TO BE CONSIDERED, AND, WHILE I AM NOT
SAYING FOR A MOMENT THAT ANY PERSON SITTING IN A JUDICIAL CAPACITY, WHO
MAY, BE IT REMEMBERED, BE A CHAIRMAN OF QUARTER SESSIONS, WHO MAY OR
MAY NOT BE A LAWYER, OR A RECORDER, OR IT MAY BE, OF COURSE, ONE OF THE
JUDGES OF THE KING'S BENCH DIVISION, WOULD BE AFFECTED BY ANYTHING HE
MIGHT READ, I THINK IT IS A FALLACY TO SAY OR TO ASSUME THAT THE
PRESIDING JUDGE IS A PERSON WHO CANNOT BE AFFECTED BY OUTSIDE
INFORMATION.  HE IS A HUMAN BEING, AND WHILE I DO NOT SUGGEST THAT IT
IS LIKELY THAT ANY JUDGE, AS THE RESULT OF INFORMATION WHICH HAD BEEN
IMPROPERLY CONVEYED TO HIM, WOULD GIVE A DECISION WHICH OTHERWISE HE
WOULD NOT HAVE GIVEN, IT IS EMBARRASSING TO A JUDGE THAT HE SHOULD BE
INFORMED OF MATTERS WHICH HE WOULD MUCH RATHER NOT HEAR AND WHICH MAKE
IT MUCH MORE DIFFICULT FOR HIM TO DO HIS DUTY.  ...  IT IS MY OWN
OPINION AND I EXPRESS IT AS SUCH, BUT I VENTURE TO THINK THAT NO JUDGE
WITH LONG CRIMINAL EXPERIENCE WILL FAIL TO BE ABLE TO RECALL INSTANCES
IN WHICH THE PUBLICATION OF MATTERS SUCH AS THAT TO WHICH I HAVE
REFERRED HAS HAD THE EFFECT OF MAKING THE TASK OF A JUDGE EXTREMELY
DIFFICULT, AND NO ONE HAS THE RIGHT TO PUBLISH MATTER WHICH WILL HAVE
THAT EFFECT (PP. 441-43)." 

"OLIVER J. ...  ONE OF THE EVILS OF INADMISSIBLE MATTER BEING
DISSEMINATED IS THAT NO ONE CAN TELL WHAT EFFECT A PARTICULAR PIECE OF
INFORMATION MAY HAVE ON HIS MIND.  WHY, AS MY LORD HAS ASKED, AND I CAN
THINK OF NO BETTER WORD, SHOULD A JUDGE BE 'EMBARRASSED' BY HAVING
MATTERS PUT INTO HIS MIND, THE EFFECT OF WHICH IT IS IMPOSSIBLE TO
ESTIMATE OR ASSESS?  AS AN ILLUSTRATION OF THIS PROPOSITION, THE COURT
OF CRIMINAL APPEAL HAS EXPRESSED, NOT ONCE BUT MANY TIMES, ITS THOROUGH
DISAPPROVAL OF EVIDENCE WHICH IS SOMETIMES GIVEN BY POLICE OFFICERS AT
THE END OF A CASE WHEN A MAN HAS BEEN CONVICTED.  ON SUCH OCCASIONS ALL
SORTS OF ALLEGATIONS ARE FREQUENTLY MADE AGAINST A MAN'S CHARACTER,
SOMETIMES IN THE NATURE OF HEARSAY AND SOMETIMES NOT SUPPORTED BY
EVIDENCE AT ALL.  WHAT IS THE GROUND FOR THE DISAPPROVAL OF THE COURT
OF CRIMINAL APPEAL REGARDING SUCH STATEMENTS?  IT CAN ONLY BE THAT THE
JUDGE WHO, AFTER HEARING THE STATEMENTS, HAS TO PRONOUNCE SENTENCE,
MAY, QUITE UNCONSCIOUSLY, HAVE HIS JUDGMENT INFLUENCED BY MATTERS WHICH
HE HAS NO RIGHT TO CONSIDER.   ...  NOT ALL DEFAMATORY MATTER CAN
AMOUNT TO CONTEMPT OF COURT.  IT IS UNNECESSARY TO GO THROUGH THE
AUTHORITIES, BUT THAT APPEARS IN CASE AFTER CASE.  WHETHER DEFAMATORY
MATTER AMOUNTS TO CONTEMPT IN ANY PARTICULAR CASE IS A QUESTION IN EACH
CASE OF FACT, OF DEGREE AND OF CIRCUMSTANCES.  OBVIOUSLY FAR LESS WOULD
AMOUNT TO CONTEMPT OF COURT IF THE MATTER WERE PUBLISHED BEFORE THE
HEARING BY A JURY THAN WOULD BE REQUIRED BEFORE A HEARING BY A JUDGE OR
BY THE COURT OF CRIMINAL APPEAL.  ...  MUCH IS SAID TO-DAY ABOUT THE
FREEDOM OF THE PRESS, AND I ONLY WISH TO POINT OUT THAT OUR DECISION IN
THIS CASE COMES TO NO MORE THAN THIS: THAT EVERYTHING THE PUBLIC HAS A
RIGHT TO KNOW ABOUT A TRIAL OF THE KIND WITH WHICH WE ARE HERE
CONCERNED, THAT IS TO SAY, EVERYTHING THAT HAS TAKEN PLACE IN OPEN
COURT, MAY BE PUBLISHED, AND BEYOND THAT THERE IS NO NEED OR RIGHT TO
GO (PP. 445-46)." 

FN1  THE DECISION IS COMMENTED UPON IN 207 L.T.
181(1949) AND 207 L.T. 225(1949). 

FN2  THIS PROCEEDING WAS CIVIL, BUT IT IS INCLUDED HEREIN FOR
COMPLETENESS. 




REO MOTORS V. COMMISSIONER, 338 U.S. 442 


NO. 59.  ARGUED NOVEMBER 10, 14, 1949.  - DECIDED JANUARY 9, 1950.  -
170 F.2D 1001, AFFIRMED. 


IN 1941 A CORPORATE TAXPAYER SUSTAINED A LOSS ARISING OUT OF THE
LIQUIDATION OF A WHOLLY-OWNED SUBSIDIARY WHOSE STOCK WAS WORTHLESS. 
UNDER FEDERAL TAX LAWS APPLICABLE IN 1941, THE LOSS WAS A LONG-TERM
CAPITAL LOSS; BUT IT COULD NOT ENTER INTO THE COMPUTATION OF NET
OPERATING LOSS, BECAUSE THE TAXPAYER HAD NO LONG-TERM CAPITAL GAINS. 
UNDER A 1942 AMENDMENT, SUCH A CAPITAL LOSS COULD ENTER INTO THE
COMPUTATION OF NET OPERATING LOSS, AND THE TAXPAYER USED THE 1941
CAPITAL LOSS IN CLAIMING A NET OPERATING LOSS DEDUCTION IN ITS RETURN
FOR 1942.  HELD:  THE TAXPAYER'S NET OPERATING LOSS DEDUCTION IN 1942
WAS PROPERLY DISALLOWED.  PP. 443-450. 

(A)  A NET OPERATING LOSS MUST BE COMPUTED SOLELY ON THE BASIS OF THE
STATUTES IN EFFECT DURING THE YEAR IN WHICH THE LOSS WAS SUSTAINED. 
PP. 446-449. 

(B)  THE PROVISION OF SEC. 101 OF THE 1942 REVENUE ACT THAT THE
AMENDMENTS ENACTED THEREIN "SHALL BE APPLICABLE ONLY WITH RESPECT TO
TAXABLE YEARS BEGINNING AFTER DECEMBER 31, 1941" CANNOT BE READ TO MEAN
"SHALL BE APPLICABLE ONLY IN COMPUTING TAX LIABILITY FOR TAXABLE YEARS
BEGINNING AFTER DECEMBER 31, 1941."  P. 449. 

(C)  THE FACT THAT THE 1924, 1926, 1928 AND 1932 REVENUE ACTS, WHICH
PERMITTED THE CARRY-OVER OF NET LOSS FROM AN EARLIER YEAR, EXPRESSLY
PROVIDED THAT SUCH NET LOSS SHOULD BE COMPUTED UNDER THE LAW IN EFFECT
DURING THE EARLIER PERIOD, AND THAT THE PRESENT CODE CONTAINS NO SUCH
PROVISION, DOES NOT REQUIRE A RESULT DIFFERENT FROM THAT HERE REACHED. 
PP. 449-450. 

(D)  COMMISSIONER V. MOORE, INC., 151 F.2D 527, DISAPPROVED.  PP. 444
445, N. 4. 

REO MOTORS, INC. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

THE COMMISSIONER'S DETERMINATION OF A DEFICIENCY IN PETITIONER'S
INCOME AND EXCESS PROFITS TAX FOR 1942 WAS SUSTAINED BY THE TAX COURT. 
9 T.C. 314.  THE COURT OF APPEALS AFFIRMED.  170 F.2D 1001.  THIS COURT
GRANTED CERTIORARI.  337 U.S. 923.  AFFIRMED, P. 450. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

AN ASSERTED CONFLICT BETWEEN THE DECISION BELOW AND THAT OF THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT IN COMMISSIONER V. MOORE, INC., 151
F.2D 527, MADE THIS AN APPROPRIATE CASE FOR OUR REVIEW ON WRIT OF
CERTIORARI.  FN1  A RECITAL OF THE FACTS MUST PRECEDE DEFINITION OF THE
ISSUE. 

PETITIONER IS A MICHIGAN CORPORATION ENGAGED IN THE MANUFACTURE OF
MOTOR VEHICLES.  ON FEBRUARY 1, 1941, REO SALES CORP., A WHOLLY-OWNED
SUBSIDIARY, WAS DISSOLVED AND ALL OF ITS ASSETS, SUBJECT TO ALL ITS
LIABILITIES, WERE TRANSFERRED TO PETITIONER.  AT THE DATE OF
DISSOLUTION, REO SALES WAS INDEBTED TO PETITIONER IN AN AMOUNT GREATER
THAN THE VALUE OF ITS NET ASSETS.  CONSEQUENTLY, ITS STOCK, WHICH HAD
AN ADJUSTED BASIS IN PETITIONER'S HANDS OF $1,551,902.79, WAS
WORTHLESS.  THIS LOSS WAS A LONG-TERM CAPITAL LOSS UNDER THE LAW
APPLICABLE IN 1941.  FN2  IT WAS SO CLAIMED BY PETITIONER AND ALLOWED
BY THE COMMISSIONER. 

PETITIONER REALIZED NO GAINS FROM THE SALE OR EXCHANGE OF CAPITAL
ASSETS IN 1941.  ITS GROSS INCOME AMOUNTED TO $2,573,259.89, WHILE
ALLOWABLE DEDUCTIONS UNDER CHAPTER 1 OF THE INTERNAL REVENUE CODE,
EXCLUSIVE OF THE CAPITAL LOSS ON REO SALES STOCK, AMOUNTED TO
$2,215,727.08.  WITH THE REO SALES STOCK LOSS INCLUDED, PETITIONER'S
ALLOWABLE DEDUCTIONS EXCEEDED ITS GROSS INCOME BY $1,194,369.98. 

UNDER THE TAX LAWS APPLICABLE IN 1941, PETITIONER'S CAPITAL LOSS ON
REO SALES STOCK COULD NOT HAVE BEEN UTILIZED AS A NET OPERATING LOSS TO
BE CARRIED OVER TO SUBSEQUENT YEARS.  SECTION 122(A) OF THE CODE
DEFINES "NET OPERATING LOSS" AS "THE EXCESS OF THE DEDUCTIONS ALLOWED
BY THIS CHAPTER OVER THE GROSS INCOME, WITH THE EXCEPTIONS AND
LIMITATIONS PROVIDED IN SUBSECTION (D)."  FN3  THE EXCEPTIONS OUTLINED
IN SEC. 122(D) INCLUDED THE FOLLOWING, WHICH IS PERTINENT HERE: 

"(4) LONG-TERM CAPITAL GAINS AND LONG-TERM CAPITAL LOSSES SHALL BE
TAKEN INTO ACCOUNT WITHOUT REGARD TO THE PROVISIONS OF SECTION 117(B). 
AS SO COMPUTED THE AMOUNT DEDUCTIBLE ON ACCOUNT OF LONG-TERM CAPITAL
LOSSES SHALL NOT EXCEED THE AMOUNT INCLUDIBLE ON ACCOUNT OF THE LONG
TERM CAPITAL GAINS, AND THE AMOUNT DEDUCTIBLE ON ACCOUNT OF SHORT-TERM
CAPITAL LOSSES SHALL NOT EXCEED THE AMOUNT INCLUDIBLE ON ACCOUNT OF THE
SHORT-TERM CAPITAL GAINS;...."  FN4  SINCE PETITIONER REALIZED NO LONG
TERM CAPITAL GAINS IN 1941, ITS LONG-TERM CAPITAL LOSS ON THE REO SALES
STOCK COULD NOT ENTER INTO THE COMPUTATION OF NET OPERATING LOSS. 

IN THE REVENUE ACT OF 1942, SEC. 23(G) OF THE CODE, WHICH DEFINES
CAPITAL LOSSES, WAS AMENDED BY ADDING SUBSECTION (4).  FN5  THIS
AMENDMENT HAD THE PRACTICAL EFFECT OF MAKING LOSSES SUCH AS THAT
SUFFERED BY PETITIONER IN THE DISSOLUTION OF REO SALES CORP. ORDINARY
RATHER THAN CAPITAL LOSSES.  UNDER 1942 LAW, THEREFORE, THE EXCEPTION
SET OUT IN SEC. 122(D)(4) IS INAPPLICABLE, AND A LOSS OF THIS KIND MAY
ENTER INTO THE COMPUTATION OF NET OPERATING LOSS. 

IT IS PETITIONER'S CONTENTION, REFLECTED IN ITS 1942 INCOME TAX
RETURNS, THAT ALTHOUGH ITS LOSS IN THE LIQUIDATION OF REO SALES CORP.
WAS INCURRED IN 1941, DETERMINATION OF THE AMOUNT OF NET OPERATING LOSS
WAS POSTPONED UNTIL 1942, WHEN IT SOUGHT TO CARRY OVER AND DEDUCT SUCH
NET OPERATING LOSS, AND THAT THE 1942 STATUTES THEREFORE GOVERN THAT
DETERMINATION.  SINCE, UNDER THE 1942 STATUTES, ITS LOSS ON REO SALES
STOCK WAS AN ORDINARY LOSS, IT CLAIMS THE RIGHT TO INCLUDE THAT LOSS IN
THE COMPUTATION OF NET OPERATING LOSS FOR CARRY-OVER AND DEDUCTION FROM
GROSS INCOME IN 1942.  WHILE SEC. 101 OF THE REVENUE ACT OF 1942
PROVIDES THAT "EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THE AMENDMENTS
MADE BY THIS TITLE SHALL BE APPLICABLE ONLY WITH RESPECT TO TAXABLE
YEARS BEGINNING AFTER DECEMBER 31, 1941," PETITIONER CONTENDS THAT THIS
SIMPLY MEANS THAT SUCH AMENDMENTS SHALL BE APPLICABLE ONLY IN COMPUTING
TAX LIABILITY FOR TAX YEARS AFTER DECEMBER 31, 1941. 

THE ISSUE IS, THEREFORE, WHETHER, IN THE COMPUTATION OF NET OPERATING
LOSS, THE GOVERNING STATUTES ARE THOSE IN EFFECT DURING THE YEAR WHEN
THE TRANSACTION OCCURRED (1941), OR WHETHER THE STATUTES IN EFFECT
DURING THE YEAR WHEN THE NET OPERATING LOSS DEDUCTION IS TAKEN (1942)
ARE CONTROLLING.  THE COMMISSIONER'S DISALLOWANCE OF PETITIONER'S NET
OPERATING LOSS DEDUCTION IN 1942 WAS UPHELD BY THE TAX COURT, 9 T.C.
314, AND THE COURT OF APPEALS AFFIRMED, 170 F.2D 1001. 

WE THINK THAT A NET OPERATING LOSS MUST BE COMPUTED ON THE BASIS OF
THE TAX LAWS APPLICABLE TO THE YEAR IN WHICH THE LOSS WAS SUFFERED. 
WHAT PETITIONER SEEKS HERE IS NOT THE KIND OF RELIEF WHICH THE STATUTE
WAS DESIGNED TO GRANT.  FN6  IT ASKS THAT THE CARRY-OVER SECTION BE
USED AS A VEHICLE BY WHICH IT MAY TAKE ADVANTAGE OF CHANGES IN THE TAX
LAWS IN YEARS AFTER THE TAXABLE EVENT HAS OCCURRED.  WE FIND NOTHING IN
THE LANGUAGE OR LEGISLATIVE HISTORY OF THE STATUTES TO JUSTIFY SUCH AN
INTERPRETATION. 

THE SCHEME OF THE STATUTE IS THIS:  SECTION 23(S) OF THE CODE PERMITS
AS A DEDUCTION FROM GROSS INCOME "THE NET OPERATING LOSS DEDUCTION
COMPUTED UNDER SECTION 122."  THE AMOUNT OF THAT DEDUCTION IS
DETERMINED IN THREE SEPARATE STEPS.  FIRST, THE NET OPERATING LOSS IS
DETERMINED.  SECTION 122(A)  FN7  PROVIDES THE DEFINITION AND METHOD OF
COMPUTATION OF NET OPERATING LOSS, SPECIFICALLY PROVIDING THAT THE
EXCEPTIONS AND LIMITATIONS OF SEC. 122(D) ARE APPLICABLE IN ITS
COMPUTATION.  SECOND, NET OPERATING LOSS HAVING BEEN DETERMINED, THE
AMOUNT AND EXTENT TO WHICH IT MAY BE UTILIZED AS A CARRY-OVER IS SET
OUT IN SEC. 122(B)(2),  FN8  AND AS A CARRY-BACK IN SEC. 122(B)(1). 
FINALLY, THE AMOUNT WHICH MAY ACTUALLY BE DEDUCTED FROM GROSS INCOME
UNDER SEC. 23(S) IS COMPUTED UNDER THE TERMS OF SEC. 122(C).  FN9  THAT
CARRY-BACKS AND THE APPLICATION OF CERTAIN ADJUSTMENTS THERETO. 

THE STARTING POINT IS THUS THE DETERMINATION OF NET OPERATING LOSS
UNDER SEC. 122(A).  WE MAY POINT BRIEFLY TO SEVERAL CIRCUMSTANCES
WHICH, WE THINK, REQUIRE A HOLDING THAT NET OPERATING LOSS MUST BE
COMPUTED SOLELY WITH REFERENCE TO THE STATUTES IN EFFECT DURING THE
YEAR WHEN THE LOSS OCCURRED. 

FIRST, UNDER PETITIONER'S THEORY, THE NET OPERATING LOSS SUSTAINED IN
ANY GIVEN YEAR WOULD NOT BE A FIXED AMOUNT BUT WOULD VARY FROM YEAR TO
YEAR DEPENDING UPON CHANGES IN THE TAX LAWS.  BUT SEC. 122(A) DEFINES
NET OPERATING LOSS AS "THE EXCESS OF THE DEDUCTIONS ALLOWED BY THIS
CHAPTER OVER THE GROSS INCOME."  CLEARLY, DETERMINATION OF THE AMOUNT
OF GROSS INCOME AND OF ALLOWABLE DEDUCTIONS FOR ANY GIVEN YEAR MUST
DEPEND UPON THE TAX STATUTES IN EFFECT DURING THAT YEAR.  IF, AS
PETITIONER CONTENDS, 1942 LAW GOVERNS ALTHOUGH THE LOSS OCCURRED IN
1941, IT IS DIFFICULT TO SEE WHY THE WHOLE OF ITS 1941 OPERATIONS, AND
NOT MERELY THE REO SALES LIQUIDATION, SHOULD NOT BE RECOMPUTED ON THE
BASIS OF THE INCOME AND DEDUCTION PROVISIONS APPLICABLE IN 1942. 
PETITIONER DOES NOT SUGGEST SUCH A RECOMPUTATION, IN SPITE OF THE FACT
THAT THE TERMS IN WHICH NET OPERATING LOSS IS DEFINED - "GROSS INCOME"
AND "DEDUCTIONS ALLOWED BY THIS CHAPTER" - ARE EQUALLY APPLICABLE IN
THE COMPUTATION OF INCOME TAXES GENERALLY.  AND EVEN IF A DISTINCTION
COULD BE DRAWN, SO FAR AS APPLICABLE LAW IS CONCERNED, BETWEEN
COMPUTATION OF NET OPERATING LOSS AND COMPUTATION OF ORDINARY TAX
LIABILITY, WE SHOULD THINK IT STRAINED AND ANOMALOUS TO READ SEC.
122(A) AS DEFINING NET OPERATING LOSS IN THIS CASE AS "THE EXCESS OF
THE DEDUCTIONS ALLOWED FOR 1942 INCOMES OVER THE GROSS INCOME EARNED IN
1941 BUT COMPUTED ACCORDING TO 1942 LAW." 

FURTHERMORE, THE LANGUAGE OF SEC. 122(B) NEGATIVES THE CONTENTION
THAT NET OPERATING LOSS FOR ANY GIVEN YEAR IS NOT A FIXED AMOUNT BUT
VARIES DEPENDING UPON THE LAW IN EFFECT DURING THE YEAR WHEN THE
DEDUCTION IS TAKEN.  SECTION 122(B)(2), FOR EXAMPLE, STATES THAT "IF
FOR ANY TAXABLE YEAR THE TAXPAYER HAS A NET OPERATING LOSS, SUCH NET
OPERATING LOSS"  FN10  SHALL BE A CARRY-OVER FOR THE TWO SUCCEEDING
YEARS.  UNDER PETITIONER'S INTERPRETATION, "SUCH NET OPERATING LOSS"
"FOR ANY TAXABLE YEAR" MAY BE DIFFERENT AMOUNTS AT DIFFERENT TIMES. 
AND, AS IN THIS CASE, WHAT WAS NO NET OPERATING LOSS AT ALL FOR THE
YEAR WHEN THE EVENT OCCURRED BECOMES A LOSS FOR THAT YEAR THROUGH
SUBSEQUENT CHANGES IN THE STATUTES.  SIMILARLY, IN SOME CASES IN WHICH
THE TAXPAYER HAD NET INCOME FOR THE YEAR UNDER CONTROLLING LAW,
SUBSEQUENT CHANGES IN THE LAW MIGHT PRODUCE A NET OPERATING LOSS FOR
THAT YEAR IF PETITIONER'S CONSTRUCTION OF THE STATUTE PREVAILED.  WE
FIND NO WARRANT FOR THE VIEW THAT CONGRESS INTENDED THAT A STATUTE
DESIGNED TO EQUALIZE TAX BURDENS SHOULD BE USED TO PRODUCE NET LOSSES
WHERE NONE HAD PREVIOUSLY EXISTED.  FN11 

WE ALSO AGREE WITH THE COURT BELOW THAT THE WORDS OF SEC. 101 OF THE
REVENUE ACT OF 1942, WHICH STATES THAT THE AMENDMENTS ENACTED THEREIN
"SHALL BE APPLICABLE ONLY WITH RESPECT TO TAXABLE YEARS BEGINNING AFTER
DECEMBER 31, 1941," CANNOT BE READ TO MEAN "SHALL BE APPLICABLE ONLY IN
COMPUTING TAX LIABILITY FOR TAXABLE YEARS BEGINNING AFTER DECEMBER 31,
1941."  TO APPLY SEC. 23(G)(4) TO ESTABLISH A NET OPERATING LOSS IS
CLEARLY TO APPLY THE 1942 AMENDMENT "WITH RESPECT TO" 1941, CONTRARY TO
THE STATUTE. 

PETITIONER FINDS COMFORT IN THE FACT THAT THE 1924, 1926, 1928, AND
1932 REVENUE ACTS, WHICH PERMITTED THE CARRY-OVER OF NET LOSS FROM AN
EARLIER YEAR, EXPRESSLY PROVIDED THAT SUCH NET LOSS SHOULD BE COMPUTED
UNDER THE LAW IN EFFECT DURING THE EARLIER PERIOD, WHILE THE PRESENT
CODE CONTAINS NO SUCH PROVISION.  TWO OBSERVATIONS MAY BE MADE:  FIRST,
THAT IN REVIVING CARRY-OVERS IN 1939 AFTER A SEVEN YEAR LAPSE, CONGRESS
PATTERNED THE NEW STATUTE GENERALLY ON THE PRIOR PRACTICE WITHOUT ANY
SUGGESTION OF CHANGE IN THIS PARTICULAR; AND SECOND, THAT WHILE SUCH
EXPRESS PROVISIONS WERE APPROPRIATE IN REVENUE ACTS PRIOR TO THE CODE,
WHEN THE LAW OF A PRIOR YEAR WAS OF NO EFFECT WHEN SUPERSEDED BY A NEW
ACT UNLESS SPECIFICALLY MADE APPLICABLE, THE PRESENT CODE HAS
CONTINUOUS APPLICATION, AND INCORPORATION OF PREVIOUS STATUTES IS
UNNECESSARY.  INSTEAD, THE OLD PROVISIONS REMAIN IN EFFECT FOR PRIOR
YEARS, AND GENERAL PROVISIONS, SUCH AS SEC. 101 OF THE 1942 ACT, GIVE
AMENDMENTS PROSPECTIVE APPLICATION ONLY, UNLESS OTHERWISE SPECIFICALLY
PROVIDED. 

THE RESULT IS THAT NET OPERATING LOSS MUST BE COMPUTED SOLELY ON THE
BASIS OF THE STATUTES IN EFFECT DURING THE TAXABLE YEAR WHEN THE LOSS
WAS INCURRED.  ONLY IF SUCH A LOSS EXISTS UNDER THOSE STATUTES WILL A
TAXPAYER HAVE ANYTHING THAT MAY BE CARRIED OVER OR BACK.  SEC. 122(A)
AND (D).  THE AMOUNT OF NET OPERATING LOSS WHICH MAY BE UTILIZED AS A
CARRY-OVER OR CARRY-BACK AND THE EXTENT TO WHICH IT MAY BE USED AS AN
OFFSET TO NET INCOME IN ANOTHER YEAR DEPEND UPON THE LAW OF THE YEAR IN
WHICH THE "CARRY" IS EFFECTIVE, SEC. 122(B), WHILE THE NET OPERATING
LOSS DEDUCTION WHICH MAY BE TAKEN IN ANY ONE YEAR DEPENDS UPON THE LAW
IN EFFECT DURING THAT YEAR.  SECS. 23(S) AND 122(C). 

WITH RESPECT TO PETITIONER'S OTHER CONTENTIONS,  FN12  IT IS
SUFFICIENT TO SAY THAT THEY IGNORE THE TRICHOTOMY PLAINLY ESTABLISHED
WITH RESPECT TO SEC. 122:  DETERMINATION OF NET OPERATING LOSS;
DETERMINATION OF THE AMOUNT AND EXTENT OF CARRY-OVER AND CARRY-BACK;
AND DETERMINATION OF NET OPERATING LOSS DEDUCTION.  THE DECISION OF THE
COURT OF APPEALS IS AFFIRMED. 

FN1  337 U.S. 923. 

FN2  SECTION 23(G) OF THE INTERNAL REVENUE CODE, 26 U.S.C. (1940
ED.)  SEC.  23(G). 

FN3  SECTION 122(A) WAS AMENDED BY SEC. 105(E)(3) OF THE REVENUE ACT
OF 1942 TO READ  "...  WITH THE EXCEPTIONS, ADDITIONS, AND LIMITATIONS
PROVIDED IN SUBSECTION (D)." 

FN4  SECTION 122(D)(4) WAS AMENDED BY SEC. 150(E) OF THE REVENUE ACT
OF 1942 TO READ AS FOLLOWS: 

"(4)  GAINS AND LOSSES FROM SALES OR EXCHANGES OF CAPITAL ASSETS
SHALL BE TAKEN INTO ACCOUNT WITHOUT REGARD TO THE PROVISIONS OF SECTION
117(B).  AS SO COMPUTED THE AMOUNT DEDUCTIBLE ON ACCOUNT OF SUCH LOSSES
SHALL NOT EXCEED THE AMOUNT INCLUDIBLE ON ACCOUNT OF SUCH GAINS." 

IT WAS THIS AMENDMENT THAT WAS INVOLVED IN COMMISSIONER V. MOORE,
INC., 151 F.2D 527.  IN 1941 MOORE HAD A LONG-TERM CAPITAL LOSS OF
$17,025 AND SHORT-TERM CAPITAL GAINS OF $2,844.  UNDER SEC. 122(D)(4)
AS IT STOOD IN 1941(SEE TEXT, SUPRA), LONG-TERM CAPITAL LOSSES COULD
NOT BE DEDUCTED FROM SHORT-TERM CAPITAL GAINS IN COMPUTING NET
OPERATING LOSSES, WHILE UNDER THE 1942 AMENDMENT THE DISTINCTION
BETWEEN LONG AND SHORT-TERM CAPITAL LOSSES WAS WITHDRAWN.  TAXPAYER
THEREFORE HAD NO NET OPERATING LOSS IN 1941, BUT UNDER THE 1942 STATUTE
HE WOULD HAVE HAD SUCH A LOSS TO THE EXTENT OF HIS SHORT-TERM CAPITAL
GAIN OF $2,844.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT APPROVED
SUCH AN OFFSET IN THE COMPUTATION OF NET OPERATING LOSS TO BE CARRIED
OVER TO 1942 AND DEDUCTED IN THAT YEAR.  THAT DECISION IS OBVIOUSLY
INCONSISTENT WITH THE VIEW WE TAKE OF THE STATUTE AND MUST BE
DISAPPROVED.    FN5  SUBSECTION (4), WHICH WAS ADDED BY SEC. 123(A)(1)
OF THE REVENUE ACT OF 1942, PROVIDES THAT, FOR THE PURPOSE OF
DETERMINING CAPITAL LOSSES, STOCK IN A CORPORATION AFFILIATED WITH THE
TAXPAYER SHALL NOT BE DEEMED A CAPITAL ASSET.  "AFFILIATION" IS DEFINED
IN TERMS THAT CLEARLY COMPREHEND PETITIONER'S OWNERSHIP OF REO SALES
CORP. 

FN6  SEE H.R. REP. NO. 855, 76TH CONG., 1ST SESS. (1939); S. REP. NO.
1631, 77TH CONG., 2D SESS. (1942).    FN7  "(A)  DEFINITION OF NET
OPERATING LOSS.  - AS USUAL IN THIS SECTION, THE TERM 'NET OPERATING
LOSS' MEANS THE EXCESS OF THE DEDUCTIONS ALLOWED BY THIS CHAPTER OVER
THE GROSS INCOME, WITH THE EXCEPTIONS AND LIMITATIONS PROVIDED IN
SUBSECTION (D)."  SEE NOTE 3, SUPRA. 

FN8  "(2)  NET OPERATING LOSS CARRY-OVER.  - IF FOR ANY TAXABLE YEAR
THE TAXPAYER HAS A NET OPERATING LOSS, SUCH NET OPERATING LOSS SHALL BE
A NET OPERATING LOSS CARRY-OVER FOR EACH OF THE TWO SUCCEEDING TAXABLE
YEARS, EXCEPT THAT THE CARRY-OVER IN THE CASE OF THE SECOND SUCCEEDING
TAXABLE YEAR SHALL BE THE EXCESS, IF ANY, OF THE AMOUNT OF SUCH NET
OPERATING LOSS OVER THE NET INCOME FOR THE INTERVENING TAXABLE YEAR
..."  COMPUTED IN SUCH A WAY THAT THE CARRY-OVER MUST BE USED TO OFFSET
CERTAIN NONTAXABLE, AS WELL AS TAXABLE, INCOME.  SECTION 122(B)(1) IS
SIMILAR IN LANGUAGE AND THEORY. 

FN9  "(C)  AMOUNT OF NET OPERATING LOSS DEDUCTION.  - THE AMOUNT OF
THE NET OPERATING LOSS DEDUCTION SHALL BE THE AGGREGATE OF THE NET
OPERATING LOSS CARRY-OVERS AND OF THE NET OPERATING LOSS CARRY-BACKS TO
THE TAXABLE YEAR REDUCED BY THE AMOUNT, IF ANY, BY WHICH THE NET INCOME
(COMPUTED WITH THE EXCEPTIONS AND LIMITATIONS PROVIDED IN SUBSECTION
(D)(1), (2), (3), AND (4)) EXCEEDS,  ...  IN THE CASE OF A CORPORATION,
THE NORMAL-TAX NET INCOME (COMPUTED WITHOUT SUCH DEDUCTION AND WITHOUT
THE CREDIT PROVIDED IN SECTION 26(E));...." 

FN10  ITALICS ADDED.  *0J  FN11  IN COMMENTING UPON A SIMILAR
POSSIBILITY IN CONNECTION WITH THE NET LOSS PROVISIONS OF THE REVENUE
ACT OF 1924, THE HOUSE COMMITTEE ON WAYS AND MEANS STATED:  "IF CAPITAL
LOSSES WERE ALLOWED AS A DEDUCTION IN COMPUTING THE NET LOSS, IT WOULD
RESULT IN THE ANOMALOUS SITUATION OF A TAXPAYER PAYING A TAX IN ONE
YEAR BUT AT THE SAME TIME HAVING A NET LOSS WHICH HE COULD CARRY OVER
AS A DEDUCTION IN COMPUTING THE TAX FOR THE SUBSEQUENT YEAR."  H.R.
REP. NO. 179, 68TH CONG., 1ST SESS. 19(1924). 

FN12  PETITIONER RELIES, INTER ALIA, UPON SOME LANGUAGE IN THE REPORT
OF THE SENATE FINANCE COMMITTEE ON THE REVENUE ACT OF 1942, S. REP. NO.
1631, 77TH CONG., 2D SESS., PP. 122, 123.  BUT THAT PORTION OF THE
REPORT IS NOT CONCERNED WITH COMPUTATION OF NET OPERATING LOSS BUT WITH
ESTABLISHMENT OF CARRY-BACK PROVISIONS AND AMENDMENT OF THE CARRY-OVER
AMOUNT AND EXTENT OF THE CARRY-OVER AND CARRY-BACK (SEC. 122(B)), NOT
TO THAT APPLICABLE IN DETERMINING NET OPERATING LOSS (SEC. 122(A) AND
(D)). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















U.S. V. CUMBERLAND PUB. SERV. CO., 338 U.S. 451 


NO. 214.  ARGUED DECEMBER 12, 1949.  - DECIDED JANUARY 9, 1950.  - 113
CT. CL. 460, 83 F.SUPP.  843, AFFIRMED. 


A CLOSELY HELD CORPORATION MADE TO ITS SHAREHOLDERS A DISTRIBUTION OF
ASSETS IN KIND AND WAS DISSOLVED.  THE STOCKHOLDERS TRANSFERRED THE
PROPERTY TO A PURCHASER.  IN AN ACTION BY THE CORPORATION FOR REFUND OF
A CAPITAL GAINS TAX ON THE SALE, THE COURT OF CLAIMS FOUND, UPON PROPER
SUPPORTING EVIDENCE, THAT THE SALE WAS MADE BY THE SHAREHOLDERS RATHER
THAN BY THE CORPORATION, AND ENTERED JUDGMENT FOR THE CORPORATION. 
HELD:  THE RECORD DOES NOT REQUIRE A FINDING THAT THE SALE WAS MADE BY
THE CORPORATION RATHER THAN BY THE SHAREHOLDERS, AND THE JUDGMENT OF
THE COURT OF CLAIMS IS AFFIRMED.  COMMISSIONER V. COURT HOLDING CO.,
324 U.S. 331, DISTINGUISHED.  PP. 452-456. 

(A)  A CORPORATION MAY LIQUIDATE OR DISSOLVE WITHOUT SUBJECTING
ITSELF TO THE CORPORATE GAINS TAX, EVEN THOUGH A PRIMARY MOTIVE IS TO
AVOID THE BURDEN OF CORPORATE TAXATION.  P. 455. 

(B)  IN THIS CASE IT WAS FOR THE COURT OF CLAIMS (THE TRIAL COURT),
UPON CONSIDERATION OF THE ENTIRE TRANSACTION, TO DETERMINE THE FACTUAL
CATEGORY IN WHICH THE TRANSACTION BELONGED.  P. 456. 

UNITED STATES V. CUMBERLAND PUBLIC SERVICE CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

IN AN ACTION FOR REFUND OF A FEDERAL TAX, THE COURT OF CLAIMS GAVE
JUDGMENT FOR THE PLAINTIFF.  113 CT. CL. 460, 83 F.SUPP.  843.  THIS
COURT GRANTED CERTIORARI.  338 U.S. 846.  AFFIRMED, P. 456. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A CORPORATION SELLING ITS PHYSICAL PROPERTIES IS TAXED ON CAPITAL
GAINS RESULTING FROM THE SALE.  FN1  THERE IS NO CORPORATE TAX,
HOWEVER, ON DISTRIBUTION OF ASSETS IN KIND TO SHAREHOLDERS AS PART OF A
GENUINE LIQUIDATION.  FN2  THE RESPONDENT CORPORATION TRANSFERRED
PROPERTY TO ITS SHAREHOLDERS AS A LIQUIDATING DIVIDEND IN KIND.  THE
SHAREHOLDERS TRANSFERRED IT TO A PURCHASER.  THE QUESTION IS WHETHER,
DESPITE CONTRARY FINDINGS BY THE COURT OF CLAIMS, THIS RECORD REQUIRES
A HOLDING THAT THE TRANSACTION WAS IN FACT A SALE BY THE CORPORATION
SUBJECTING THE CORPORATION TO A CAPITAL GAINS TAX. 

DETAILS OF THE TRANSACTION ARE AS FOLLOWS.  THE RESPONDENT, A CLOSELY
HELD CORPORATION, WAS LONG ENGAGED IN THE BUSINESS OF GENERATING AND
DISTRIBUTING ELECTRIC POWER IN THREE KENTUCKY COUNTIES.  IN 1936 A
LOCAL COOPERATIVE BEGAN TO DISTRIBUTE TENNESSEE VALLEY AUTHORITY POWER
IN THE AREA SERVED BY RESPONDENT.  IT SOON BECAME OBVIOUS THAT
RESPONDENT'S DIESEL-GENERATED POWER COULD NOT COMPETE WITH TVA POWER,
WHICH RESPONDENT HAD BEEN UNABLE TO OBTAIN.  RESPONDENT'S SHAREHOLDERS,
REALIZING THAT THE CORPORATION MUST GET OUT OF THE POWER BUSINESS
UNLESS IT OBTAINED TVA POWER, ACCORDINGLY OFFERED TO SELL ALL THE
CORPORATE STOCK TO THE COOPERATIVE, WHICH WAS RECEIVING SUCH POWER. 
THE COOPERATIVE REFUSED TO BUY THE STOCK, BUT COUNTERED WITH AN OFFER
TO BUY FROM THE CORPORATION ITS TRANSMISSION AND DISTRIBUTION
EQUIPMENT.  THE CORPORATION REJECTED THE OFFER BECAUSE IT WOULD HAVE
BEEN COMPELLED TO PAY A HEAVY CAPITAL GAINS TAX.  AT THE SAME TIME THE
SHAREHOLDERS, DESIRING TO SAVE PAYMENT OF THE CORPORATE CAPITAL GAINS
TAX, OFFERED TO ACQUIRE THE TRANSMISSION AND DISTRIBUTION EQUIPMENT AND
THEN SELL TO THE COOPERATIVE.  THE COOPERATIVE ACCEPTED.  THE
CORPORATION TRANSFERRED THE TRANSMISSION AND DISTRIBUTION SYSTEMS TO
ITS SHAREHOLDERS IN PARTIAL LIQUIDATION.  THE REMAINING ASSETS WERE
SOLD AND THE CORPORATION DISSOLVED.  THE SHAREHOLDERS THEN EXECUTED THE
PREVIOUSLY CONTEMPLATED SALE TO THE COOPERATIVE. 

UPON THIS SALE BY THE SHAREHOLDERS, THE COMMISSIONER ASSESSED AND
COLLECTED A $17,000 TAX FROM THE CORPORATION ON THE THEORY THAT THE
SHAREHOLDERS HAD BEEN USED AS A MERE CONDUIT FOR EFFECTUATING WHAT WAS
REALLY A CORPORATE SALE.  RESPONDENT CORPORATION BROUGHT THIS ACTION TO
RECOVER THE AMOUNT OF THE TAX.  THE COURT OF CLAIMS FOUND THAT THE
METHOD BY WHICH THE STOCKHOLDERS DISPOSED OF THE PROPERTIES WAS
AVOWEDLY CHOSEN IN ORDER TO REDUCE TAXES, BUT THAT THE LIQUIDATION AND
DISSOLUTION GENUINELY ENDED THE CORPORATION'S ACTIVITIES AND
EXISTENCE.  THE COURT ALSO FOUND THAT AT NO TIME DID THE CORPORATION
PLAN TO MAKE THE SALE ITSELF.  ACCORDINGLY IT FOUND AS A FACT THAT THE
SALE WAS MADE BY THE SHAREHOLDERS RATHER THAN THE CORPORATION, AND
ENTERED JUDGMENT FOR RESPONDENT.  ONE JUDGE DISSENTED, BELIEVING THAT
OUR OPINION IN COMMISSIONER V. COURT HOLDING CO., 324 U.S. 331,
REQUIRED A FINDING THAT THE SALE HAD BEEN MADE BY THE CORPORATION. 
CERTIORARI WAS GRANTED, 338 U.S. 846, TO CLEAR UP DOUBTS ARISING OUT OF
THE COURT HOLDING CO. CASE. 

OUR COURT HOLDING CO. DECISION RESTED ON FINDINGS OF FACT BY THE TAX
COURT THAT A SALE HAD BEEN MADE AND GAINS REALIZED BY THE TAXPAYER
CORPORATION.  THERE THE CORPORATION HAD NEGOTIATED FOR SALE OF ITS
ASSETS AND HAD REACHED AN ORAL AGREEMENT OF SALE.  WHEN THE TAX
CONSEQUENCES OF THE CORPORATE SALE WERE BELATEDLY RECOGNIZED, THE
CORPORATION PURPORTED TO "CALL OFF" THE SALE AT THE LAST MINUTE AND
DISTRIBUTED THE PHYSICAL PROPERTIES IN KIND TO THE STOCKHOLDERS.  THEY
PROMPTLY CONVEYED THESE PROPERTIES TO THE SAME PERSONS WHO HAD
NEGOTIATED WITH THE CORPORATION.  THE TERMS OF PURCHASE WERE
SUBSTANTIALLY THOSE OF THE PREVIOUS ORAL AGREEMENT.  ONE THOUSAND
DOLLARS ALREADY PAID TO THE CORPORATION WAS APPLIED AS PART PAYMENT OF
THE PURCHASE PRICE.  THE TAX COURT FOUND THAT THE CORPORATION NEVER
REALLY ABANDONED ITS SALES NEGOTIATIONS, THAT IT NEVER DID DISSOLVE,
AND THAT THE SOLE PURPOSE OF THE SO-CALLED LIQUIDATION WAS TO DISGUISE
A CORPORATE SALE THROUGH USE OF MERE FORMALISMS IN ORDER TO AVOID TAX
LIABILITY.  THE CIRCUIT COURT OF APPEALS TOOK A DIFFERENT VIEW OF THE
EVIDENCE.  IN THIS COURT THE GOVERNMENT CONTENDED THAT WHETHER A
LIQUIDATION DISTRIBUTION WAS GENUINE OR MERELY A SHAM WAS TRADITIONALLY
A QUESTION OF FACT.  WE AGREED WITH THIS CONTENTION, AND REINSTATED THE
TAX COURT'S FINDINGS AND JUDGMENT.  DISCUSSING THE EVIDENCE WHICH
SUPPORTED THE FINDINGS OF FACT, WE WENT ON TO SAY THAT "THE INCIDENCE
OF TAXATION DEPENDS UPON THE SUBSTANCE OF A TRANSACTION" REGARDLESS OF
"MERE FORMALISMS," AND THAT TAXES ON A CORPORATE SALE CANNOT BE AVOIDED
BY USING THE SHAREHOLDERS AS A "CONDUIT THROUGH WHICH TO PASS TITLE." 

THIS LANGUAGE DOES NOT MEAN THAT A CORPORATION CAN BE TAXED EVEN WHEN
THE SALE HAS BEEN MADE BY ITS STOCKHOLDERS FOLLOWING A GENUINE
LIQUIDATION AND DISSOLUTION.  FN3  WHILE THE DISTINCTION BETWEEN SALES
BY A CORPORATION AS COMPARED WITH DISTRIBUTION IN KIND FOLLOWED BY
SHAREHOLDER SALES MAY BE PARTICULARLY SHADOWY AND ARTIFICIAL WHEN THE
CORPORATION IS CLOSELY HELD, CONGRESS HAS CHOSEN TO RECOGNIZE SUCH A
DISTINCTION FOR TAX PURPOSES.  THE CORPORATE TAX IS THUS AIMED
PRIMARILY AT THE PROFITS OF A GOING CONCERN.  THIS IS TRUE DESPITE THE
FACT THAT GAINS REALIZED FROM CORPORATE SALES ARE TAXED, PERHAPS TO
PREVENT TAX EVASIONS, EVEN WHERE THE CASH PROCEEDS ARE AT ONCE
DISTRIBUTED IN LIQUIDATION.  FN4  BUT CONGRESS HAS IMPOSED NO TAX ON
LIQUIDATING DISTRIBUTIONS IN KIND OR ON DISSOLUTION, WHATEVER MAY BE
THE MOTIVE FOR SUCH LIQUIDATION.  CONSEQUENTLY, A CORPORATION MAY
LIQUIDATE OR DISSOLVE WITHOUT SUBJECTING ITSELF TO THE CORPORATE GAINS
TAX, EVEN THOUGH A PRIMARY MOTIVE IS TO AVOID THE BURDEN OF CORPORATE
TAXATION. 

HERE, ON THE BASIS OF ADEQUATE SUBSIDIARY FINDINGS, THE COURT OF
CLAIMS HAS FOUND THAT THE SALE IN QUESTION WAS MADE BY THE STOCKHOLDERS
RATHER THAN THE CORPORATION.  THE GOVERNMENT'S ARGUMENT THAT THE
SHAREHOLDERS ACTED AS A MERE "CONDUIT" FOR A SALE BY RESPONDENT
CORPORATION MUST FALL BEFORE THIS FINDING.  THE SUBSIDIARY FINDING THAT
A MAJOR MOTIVE OF THE SHAREHOLDERS WAS TO REDUCE TAXES DOES NOT BAR
THIS CONCLUSION.  WHATEVER THE MOTIVE AND HOWEVER RELEVANT IT MAY BE IN
DETERMINING WHETHER THE TRANSACTION WAS REAL OR A SHAM, SALES OF
PHYSICAL PROPERTIES BY SHAREHOLDERS FOLLOWING A GENUINE LIQUIDATION
DISTRIBUTION CANNOT BE ATTRIBUTED TO THE CORPORATION FOR TAX PURPOSES. 

THE ODDITIES IN TAX CONSEQUENCES THAT EMERGE FROM THE TAX PROVISIONS
HERE CONTROLLING APPEAR TO BE INHERENT IN THE PRESENT TAX PATTERN.  FOR
A CORPORATION IS TAXED IF IT SELLS ALL ITS PHYSICAL PROPERTIES AND
DISTRIBUTES THE CASH PROCEEDS AS LIQUIDATING DIVIDENDS, YET IS NOT
TAXED IF THAT PROPERTY IS DISTRIBUTED IN KIND AND IS THEN SOLD BY THE
SHAREHOLDERS.  IN BOTH INSTANCES THE INTEREST OF THE SHAREHOLDERS IN
THE BUSINESS HAS BEEN TRANSFERRED TO THE PURCHASER.  AGAIN, IF THESE
STOCKHOLDERS HAD SUCCEEDED IN THEIR ORIGINAL EFFORT TO SELL ALL THEIR
STOCK, THEIR INTEREST WOULD HAVE BEEN TRANSFERRED TO THE PURCHASERS
JUST AS EFFECTIVELY.  YET ON SUCH A TRANSACTION THE CORPORATION WOULD
HAVE REALIZED NO TAXABLE GAIN. 

CONGRESS HAVING DETERMINED THAT DIFFERENT TAX CONSEQUENCES SHALL FLOW
FROM DIFFERENT METHODS BY WHICH THE SHAREHOLDERS OF A CLOSELY HELD
CORPORATION MAY DISPOSE OF CORPORATE PROPERTY, WE ACCEPT ITS MANDATE. 
IT IS FOR THE TRIAL COURT, UPON CONSIDERATION OF AN ENTIRE TRANSACTION,
TO DETERMINE THE FACTUAL CATEGORY IN WHICH A PARTICULAR TRANSACTION
BELONGS.  HERE AS IN THE COURT HOLDING CO. CASE WE ACCEPT THE ULTIMATE
FINDINGS OF FACT OF THE TRIAL TRIBUNAL.  ACCORDINGLY THE JUDGMENT OF
THE COURT OF CLAIMS IS AFFIRMED. 

FN1  26 U.S.C. SEC. 22(A); TREAS. REG. 103, SEC. 19.22(A)-19. 

FN2  "...  NO GAIN OR LOSS IS REALIZED BY A CORPORATION FROM THE MERE
DISTRIBUTION OF ITS ASSETS IN KIND IN PARTIAL OR COMPLETE LIQUIDATION,
HOWEVER THEY MAY HAVE APPRECIATED OR DEPRECIATED IN VALUE SINCE THEIR
ACQUISITION...."  TREAS. REG. 103, SEC. 19.22(A)-21. 

FN3 WHAT WE SAID IN THE COURT HOLDING CO. CASE WAS AN APPROVAL OF THE
ACTION OF THE TAX COURT IN LOOKING BEYOND THE PAPERS EXECUTED BY THE
CORPORATION AND SHAREHOLDERS IN ORDER TO DETERMINE WHETHER THE SALE
THERE HAD ACTUALLY BEEN MADE BY THE CORPORATION.  WE WERE BUT
EMPHASIZING THE ESTABLISHED PRINCIPLE THAT IN RESOLVING SUCH QUESTIONS
AS WHO MADE A SALE, FACT-FINDING TRIBUNALS IN TAX CASES CAN CONSIDER
MOTIVES, INTENT, AND CONDUCT IN ADDITION TO WHAT APPEARS IN WRITTEN
INSTRUMENTS USED BY PARTIES TO CONTROL RIGHTS AS AMONG THEMSELVES. 
SEE, E.G., HELVERING V. CLIFFORD, 309 U.S. 331, 335-337; COMMISSIONER
V. TOWER, 327 U.S. 280. 

FN4  IT HAS ALSO BEEN HELD THAT WHERE CORPORATE LIQUIDATIONS ARE
EFFECTED THROUGH TRUSTEES OR AGENTS, GAINS FROM SALES ARE TAXABLE TO
THE CORPORATION AS THOUGH IT WERE A GOING CONCERN.  SEE, E.G., FIRST
NATIONAL BANK V. UNITED STATES, 86 F.2D 938, 941; TREAS. REG. 103, SEC.
19.22(A)-21. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















UNITED STATES V. MOORMAN, 338 U.S. 457 


NO. 97.  ARGUED DECEMBER 6, 1949.  - DECIDED JANUARY 9, 1950.  - 113 CT.
CL. 159, 82 F.SUPP.  1010, REVERSED. 


SPECIFICATIONS ATTACHED TO AND MADE A PART OF A GOVERNMENT
CONSTRUCTION CONTRACT ON THE STANDARD FORM PROVIDED THAT, "IF THE
CONTRACTOR CONSIDERS ANY WORK DEMANDED OF HIM TO BE OUTSIDE THE
REQUIREMENTS OF THE CONTRACT," HE COULD APPEAL TO THE HEAD OF THE
DEPARTMENT, "WHOSE DECISION OR THAT OF HIS DULY AUTHORIZED
REPRESENTATIVE SHALL BE FINAL AND BINDING UPON THE PARTIES TO THE
CONTRACT."  HELD:  THE COURT OF CLAIMS MAY NOT REVIEW AN ADMINISTRATIVE
DECISION MADE UNDER THIS PROVISION.  PP. 458-463. 

1.  CONTRACTUAL PROVISIONS FOR THE SETTLEMENT OF DISPUTES HAVE LONG
BEEN USED BY THE GOVERNMENT AND SUSTAINED BY THIS COURT, ARE NOT
FORBIDDEN BY CONGRESS, AND SHOULD NOT BE FRUSTRATED BY JUDICIAL
"INTERPRETATION" OF CONTRACTS.  PP. 460-462. 

2.  REGARDLESS OF WHETHER THE DISPUTE IN THIS CASE INVOLVED A
QUESTION OF FACT OR A QUESTION OF LAW, IT WAS WITHIN THE AMBIT OF THE
CLEAR LANGUAGE OF THE PROVISION FOR THE FINAL ADMINISTRATIVE SETTLEMENT
OF SUCH DISPUTES.  PP. 462-463. 

UNITED STATES V. MOORMAN ET AL., DOING BUSINESS AS J. W. MOORMAN &
SON. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS REVIEWED A DECISION OF THE HEAD OF A DEPARTMENT
AS TO THE SCOPE OF THE WORK REQUIRED OF A CONTRACTOR UNDER A STANDARD
FORM OF GOVERNMENT CONSTRUCTION CONTRACT AND AWARDED THE CONTRACTOR A
MONEY JUDGMENT FOR ADDITIONAL COMPENSATION.  113 CT. CL. 159, 82
F.SUPP.  1010.  THIS COURT GRANTED CERTIORARI.  338 U.S. 810. 
REVERSED, P. 463. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS PRESENTED RELATE TO THE INTERPRETATION AND VALIDITY OF
TERMS IN A GOVERNMENT CONSTRUCTION CONTRACT PROVIDING THAT IN
CONTRACTUAL DISPUTES THE DECISIONS OF THE SECRETARY OF WAR OR HIS
AUTHORIZED REPRESENTATIVE SHALL BE FINAL AND BINDING. 

THE RESPONDENT PARTNERSHIP ENTERED INTO A STANDARD FORM CONTRACT WITH
THE UNITED STATES TO GRADE THE SITE OF A PROPOSED AIRCRAFT ASSEMBLY
PLANT.  ARTICLE 1 OF THE CONTRACT PROVIDED FOR PAYMENT OF 24 CENTS PER
CUBIC YARD OF GRADING, SATISFACTORILY COMPLETED "IN STRICT ACCORDANCE
WITH THE SPECIFICATIONS, SCHEDULES, AND DRAWINGS, ALL OF WHICH ARE MADE
A PART HEREOF  ...  "  A PROPOSED TAXIWAY WAS SHOWN ON THE DRAWINGS BUT
WAS NOT LOCATED WITHIN THE PLANT SITE AS DESCRIBED IN THE
SPECIFICATIONS.  THE PRESENT CONTROVERSY CONCERNS THE QUESTION OF
WHETHER THE CONTRACT REQUIRED RESPONDENT TO GRADE THIS TAXIWAY. 

ON DEMAND OF THE GOVERNMENT, RESPONDENT GRADED FOR THE TAXIWAY AT THE
POINT SHOWN ON THE DRAWINGS.  IT THEN FILED A CLAIM WITH THE
CONTRACTING OFFICER ASKING EXTRA COMPENSATION, 84 CENTS PER CUBIC YARD
INSTEAD OF THE 24 CENTS SPECIFIED IN THE CONTRACT.  UPON INVESTIGATION
THE CONTRACTING OFFICER MADE FINDINGS OF FACT WHICH LED HIM TO REJECT
RESPONDENT'S CLAIM.  APPEAL WAS TAKEN TO THE SECRETARY OF WAR, WHOSE
AUTHORIZED REPRESENTATIVE ALSO CONSIDERED THE FACTS AND DENIED THE
CLAIM.  ACCORDING TO PAR. 2-16(A) OF THE SPECIFICATIONS, SUCH A DENIAL
IS "FINAL AND BINDING UPON THE PARTIES" WHEN A CONTRACTOR CLAIMS AS
HERE THAT WORK DEMANDED IS "OUTSIDE THE REQUIREMENTS OF THE CONTRACT." 
FN1 

NOTWITHSTANDING THE FOREGOING PROVISION THAT THE SECRETARY OF WAR'S
DECISION IS FINAL AND BINDING, RESPONDENT BROUGHT THIS ACTION IN THE
COURT OF CLAIMS TO RECOVER THE EXTRA COMPENSATION.  HE THERE CONTENDED
THAT HIS RIGHT TO CHALLENGE SUCH ADMINISTRATIVE FINDINGS WAS MEASURED
BY ART. 15 OF THE CONTRACT, NOT BY PAR. 2-16 OF THE SPECIFICATIONS. 
ARTICLE 15 MAKES A DEPARTMENT HEAD'S DECISION "FINAL AND CONCLUSIVE
UPON THE PARTIES" ONLY WHEN SUCH DISPUTES ARE OVER "QUESTIONS OF
FACT."  FN2  RESPONDENT, ALLEGING THAT THE DISPUTE HERE WAS OVER THE
PROPER "INTERPRETATION" OF THE CONTRACT, ARGUES THAT HOW A CONTRACT
SHALL BE INTERPRETED IS NOT A "QUESTION OF FACT" BUT A "QUESTION OF
LAW."  ADDING THIS PREMISE TO HIS ASSUMPTION THAT ART. 15 ALONE
GOVERNED FINALITY OF THIS ADMINISTRATIVE DECISION, RESPONDENT CONTENDED
THAT THE COURT OF CLAIMS COULD RECONSIDER THE FACTS, MAKE NEW FINDINGS
AS A BASIS FOR ITS "INTERPRETATION," AND THEN OVERTURN THE
ADMINISTRATIVE DECISION.  THE COURT OF CLAIMS DID ALL THREE.  ON THE
BASIS OF ITS NEW FINDINGS AND "INTERPRETATION," THE COURT ENTERED A
MONEY JUDGMENT FOR RESPONDENT COMPUTED AT 59.3 CENTS PER CUBIC YARD FOR
THE TAXIWAY GRADING.  113 CT. CL. 159, 82 F.SUPP.  1010. 

IN PETITIONING FOR CERTIORARI THE SOLICITOR GENERAL REPRESENTED THAT
THIS DECISION PLUS PREVIOUS ONES OF THE COURT OF CLAIMS HAD "WEAKENED
AND NARROWED THE EFFECTIVENESS OF THE WELL-ESTABLISHED POLICY OF THE
GOVERNMENT TO SETTLE, WITHOUT EXPENSIVE LITIGATION, DISPUTES ARISING
UNDER ITS CONTRACTS"; AND THAT THE TOTAL EFFECT OF THE DECISIONS WAS TO
"ADD FURTHER DOUBT AND CONFUSION TO THE AUTHORITY OF DESIGNATED
OFFICERS OF THE UNITED STATES TO MAKE FINAL DECISIONS UNDER GOVERNMENT
CONTRACTS."  FN3  WE GRANTED CERTIORARI.  338 U.S. 810. 

FIRST.  CONTRACTUAL PROVISIONS SUCH AS THESE HAVE LONG BEEN USED BY
THE GOVERNMENT.  NO CONGRESSIONAL ENACTMENT CONDEMNS THEIR CREATION OR
ENFORCEMENT.  AS EARLY AS 1878 THIS COURT EMPHATICALLY AUTHORIZED
ENFORCEMENT OF CONTRACTUAL PROVISIONS VESTING FINAL POWER IN A DISTRICT
QUARTERMASTER TO FIX DISTANCES, NOT CLEARLY DEFINED IN THE CONTRACT, ON
WHICH PAYMENT FOR TRANSPORTATION WAS BASED.  KIHLBERG V. UNITED STATES,
97 U.S. 398.  FIVE YEARS LATER SWEENEY V. UNITED STATES, 109 U.S. 618,
UPHELD A GOVERNMENT CONTRACT PROVIDING THAT PAYMENT FOR CONSTRUCTION OF
A WALL SHOULD NOT BE MADE UNTIL AN ARMY OFFICER OR OTHER AGENT
DESIGNATED BY THE UNITED STATES HAD CERTIFIED AFTER INSPECTION THAT "IT
WAS IN ALL RESPECTS AS CONTRACTED FOR."  AND IN MARTINSBURG & POTOMAC
R. CO. V. MARCH, 114 U.S. 549, THIS COURT ENFORCED A CONTRACT FOR
RAILROAD GRADING WHICH BROADLY PROVIDED THAT THE RAILROAD'S CHIEF
ENGINEER SHOULD IN ALL CASES "DETERMINE THE QUANTITY OF THE SEVERAL
KINDS OF WORK TO BE PAID FOR UNDER THE CONTRACT,  ... DECIDE EVERY
QUESTION WHICH CAN OR MAY ARISE RELATIVE TO THE EXECUTION OF THE
CONTRACT, AND 'HIS ESTIMATE SHALL BE FINAL AND CONCLUSIVE.'"  ID. AT
PP. 551-552.  IN UPHOLDING THE CONCLUSIONS OF THE ENGINEER THE COURT
EMPHASIZED THE DUTY OF TRIAL COURTS TO RECOGNIZE THE RIGHT OF PARTIES
TO MAKE AND RELY ON SUCH MUTUAL AGREEMENTS.  FINDINGS OF SUCH A
CONTRACTUALLY DESIGNATED AGENT, EVEN WHERE EMPLOYED BY ONE OF THE
PARTIES, WERE HELD "CONCLUSIVE, UNLESS IMPEACHED ON THE GROUND OF
FRAUD, OR SUCH GROSS MISTAKE AS NECESSARILY IMPLIED BAD FAITH."  ID. AT
P. 555. 

THE HOLDINGS OF THE FOREGOING CASES HAVE NEVER BEEN DEPARTED FROM BY
THIS COURT.  THEY STAND FOR THE PRINCIPLE THAT PARTIES COMPETENT TO
MAKE CONTRACTS ARE ALSO COMPETENT TO MAKE SUCH AGREEMENTS.  THE COURT
OF CLAIMS DEPARTED FROM THIS ESTABLISHED PRINCIPLE IN MCSHAIN V. UNITED
STATES, 88 CT. CL. 284, WHERE IT REFUSED TO RECOGNIZE AS FINAL THE
DECISION OF A CONTRACTING OFFICER, EVEN THOUGH THE GOVERNMENT AND
CONTRACTOR HAD AGREED THAT HIS DECISION SHOULD BE FINAL.  THE COURT OF
CLAIMS' HOLDING WAS BASED ON ITS CONCLUSION THAT THE CONTRACTING
OFFICER'S DECISION HAD BEEN REACHED BY "INTERPRETATION OF THE CONTRACT,
DRAWING, AND SPECIFICATIONS," AND THAT PARTIES WERE INCOMPETENT TO MAKE
SUCH DECISIONS BINDING EXCEPT AS TO QUESTIONS OF FACT.  ITS HOLDING WAS
CONSIDERED SUCH A DEPARTURE FROM ESTABLISHED CONTRACT LAW THAT THIS
COURT SUMMARILY REVERSED IN A PER CURIAM OPINION  FN4  CITING ONLY TWO
OF THE MANY PRIOR CASES ON THE SUBJECT.  ONE OF THE CITED CASES HAD
ENFORCED A CONTRACT PROVISION THAT "THE DECISION OF THE SUPERVISING
ARCHITECT AS TO THE PROPER INTERPRETATION OF THE DRAWINGS AND
SPECIFICATIONS SHALL BE FINAL."  MERRILL-RUCKGABER CO. V. UNITED
STATES, 241 U.S. 387, 393. 

SIMILAR AGREEMENTS HAVE BEEN HELD ENFORCEABLE IN ALMOST EVERY STATE. 
SEE CASES COLLECTED IN NOTE, 54 A.L.R. 1255 ET SEQ. IN ONE STATE,
INDIANA, THE COURTS DO SEEM TO HOLD DIFFERENTLY, ON THE GROUND THAT
PERMITTING ENGINEERS OR OTHER PERSONS TO MAKE FINAL DETERMINATIONS OF
CONTRACTUAL DISPUTES WOULD WRONGFULLY DEPRIVE THE PARTIES OF A RIGHT TO
HAVE THEIR CONTROVERSIES DECIDED IN COURTS.  SEE CASES COLLECTED IN
NOTE, 54 A.L.R. 1270-1271.  IN THE MCSHAIN CASE WE REJECTED A
CONTENTION THAT THIS COURT SHOULD ADOPT A RULE LIKE INDIANA'S AND WE
REJECT IT NOW.  IT IS TRUE THAT THE INTENTION OF PARTIES TO SUBMIT
THEIR CONTRACTUAL DISPUTES TO FINAL DETERMINATION OUTSIDE THE COURTS
SHOULD BE MADE MANIFEST BY PLAIN LANGUAGE.  MERCANTILE TRUST CO. V.
HENSEY, 205 U.S. 298, 309.  BUT THIS DOES NOT MEAN THAT HOSTILITY TO
SUCH PROVISIONS CAN JUSTIFY BLINDNESS TO A PLAIN INTENT OF PARTIES TO
ADOPT THIS METHOD FOR SETTLEMENT OF THEIR DISPUTES.  NOR SHOULD SUCH AN
AGREEMENT OF PARTIES BE FRUSTRATED BY JUDICIAL "INTERPRETATION" OF
CONTRACTS.  IF PARTIES COMPETENT TO DECIDE FOR THEMSELVES ARE TO BE
DEPRIVED OF THE PRIVILEGE OF MAKING SUCH ANTICIPATORY PROVISIONS FOR
SETTLEMENT OF DISPUTES, THIS DEPRIVATION SHOULD COME FROM THE
LEGISLATIVE BRANCH OF GOVERNMENT. 

SECOND.  WE TURN TO THE CONTRACT TO DETERMINE WHETHER THE PARTIES DID
SHOW AN INTENT TO AUTHORIZE FINAL DETERMINATIONS BY THE SECRETARY OF
WAR OR HIS REPRESENTATIVES IN THIS TYPE OF CONTROVERSY.  IF THE
DETERMINATION HERE IS CONSIDERED ONE OF FACT, ART. 15 OF THE CONTRACT
CLEARLY MAKES IT BINDING.  BUT WHILE THERE IS MUCH TO BE SAID FOR THE
ARGUMENT THAT THE "INTERPRETATION" HERE PRESENTS A QUESTION OF FACT, WE
NEED NOT CONSIDER THAT ARGUMENT.  FOR A CONCLUSION THAT THE QUESTION
HERE IS ONE OF LAW CANNOT REMOVE THE CONTROVERSY FROM THE AMBIT OF PAR.
2-16 OF THE SPECIFICATIONS.  THAT SECTION EXPRESSLY COVERS ALL CLAIMS
BY A CONTRACTOR WHO, LIKE RESPONDENT HERE, "CONSIDERS ANY WORK DEMANDED
OF HIM TO BE OUTSIDE THE REQUIREMENTS OF THE CONTRACT  ...  " THE
PARTIES INCORPORATED IT INTO THE SPECIFICATIONS AND MADE THE
SPECIFICATIONS PART OF THE CONTRACT, ALL OF WHICH THEY HAD A LEGAL
RIGHT TO DO.  THE SECTION IS NEITHER IN CONFLICT WITH NOR LIMITED BY
ART. 15, FOR THE LATTER EXPRESSLY EXCEPTS FROM ITS COVERAGE SUCH
SPECIAL METHODS OF SETTLEMENT "OTHERWISE SPECIFICALLY PROVIDED IN THIS
CONTRACT." 

THE OFT-REPEATED CONCLUSION OF THE COURT OF CLAIMS THAT QUESTIONS OF
"INTERPRETATION" ARE NOT QUESTIONS OF FACT IS AMPLE REASON WHY THE
PARTIES TO THE CONTRACT SHOULD PROVIDE FOR FINAL DETERMINATION OF SUCH
DISPUTES BY A METHOD WHOLLY SEPARATE FROM THE FACT-LIMITED PROVISIONS
OF ART. 15.  TO HOLD THAT THE PARTIES DID NOT SO "INTEND" WOULD BE A
DISTORTION OF THE INTERPRETATIVE PROCESS.  THE LANGUAGE OF PAR. 2-16 IS
CLEAR.  NO AMBIGUITIES CAN BE INJECTED INTO IT BY SUPPORTABLE
REASONING.  IT STATES IN LANGUAGE AS PLAIN AS DRAFTSMEN COULD USE THAT
FINDINGS OF THE SECRETARY OF WAR IN DISPUTES OF THE TYPE HERE INVOLVED
SHALL BE "FINAL AND BINDING."  IN RECONSIDERING THE QUESTIONS DECIDED
BY THE DESIGNATED AGENT OF THE PARTIES, THE COURT OF CLAIMS WAS IN
ERROR.  ITS JUDGMENT CANNOT STAND.  REVERSED. 

FN1  "IF THE CONTRACTOR CONSIDERS ANY WORK DEMANDED OF HIM TO BE
OUTSIDE THE REQUIREMENTS OF THE CONTRACT OR IF HE CONSIDERS ANY ACTION
OR RULING OF THE CONTRACTING OFFICER OR OF THE INSPECTORS TO BE UNFAIR,
THE CONTRACTOR SHALL WITHOUT UNDUE DELAY, UPON SUCH DEMAND, ACTION, OR
RULING, SUBMIT HIS PROTEST THERETO IN WRITING TO THE CONTRACTING
OFFICER, STATING CLEARLY AND IN DETAIL THE BASIS OF HIS OBJECTIONS. 
THE CONTRACTING OFFICER SHALL THEREUPON PROMPTLY INVESTIGATE THE
COMPLAINT AND FURNISH THE CONTRACTOR HIS DECISION, IN WRITING,
THEREON.  IF THE CONTRACTOR IS NOT SATISFIED WITH THE DECISION OF THE
CONTRACTING OFFICER, HE MAY, WITHIN THIRTY DAYS, APPEAL IN WRITING TO
THE SECRETARY OF WAR, WHOSE DECISION OR THAT OF HIS DULY AUTHORIZED
REPRESENTATIVE SHALL BE FINAL AND BINDING UPON THE PARTIES TO THE
CONTRACT.  ...  "  PARAGRAPH 2-16 OF THE SPECIFICATIONS. 

FN2  "DISPUTES.  - EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS
CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THIS
CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER SUBJECT TO WRITTEN
APPEAL BY THE CONTRACTOR WITHIN 30 DAYS TO THE HEAD OF THE DEPARTMENT
CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE DECISION SHALL
BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO.  IN THE MEANTIME THE
CONTRACTOR SHALL DILIGENTLY PROCEED WITH THE WORK AS DIRECTED." 
ARTICLE 15 OF THE CONTRACT. 

FN3  THESE AND OTHER REPRESENTATIONS IN THE PETITION FOR CERTIORARI
IN THIS CASE ARE SUBSTANTIALLY IDENTICAL WITH REPRESENTATIONS MADE BY
THE SOLICITOR GENERAL IN ASKING THIS COURT TO REVIEW A FORMER COURT OF
CLAIMS JUDGMENT REPORTED IN 88 CT. CL. 284.  THE CASE THERE, IT WAS
URGED, SEEMED TO BE THE "CULMINATION OF A RECENT TENDENCY IN THE COURT
OF CLAIMS TO WHITTLE AWAY THE AUTHORITY OF DESIGNATED OFFICERS OF THE
UNITED STATES TO MAKE FINAL DECISIONS UNDER CONTRACTS."  IT WAS
INSISTED THAT "AT LEAST, WE SUBMIT, THE POWER OF THE GOVERNMENT TO MAKE
EFFECTIVE CONTRACTS OF THIS CHARACTER SHOULD NOT BE SO CIRCUMSCRIBED
EXCEPT BY DECISION OF THIS COURT."  WE GRANTED THAT PETITION AND
REVERSED THE JUDGMENT WITHOUT ORAL ARGUMENT IN A PER CURIAM OPINION. 
UNITED STATES V. MCSHAIN, 308 U.S. 512. 

FN4  UNITED STATES V. MCSHAIN, 308 U.S. 512. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















POWER COMM'N V. EAST OHIO GAS CO., 338 U.S. 464 


NO. 71.  ARGUED NOVEMBER 10, 1949.  - DECIDED JANUARY 9, 1950.  - 84
U.S. APP. D.C. 312, 173 F.2D 429, REVERSED. 


RESPONDENT OWNS AND OPERATES A NATURAL-GAS BUSINESS WHOLLY WITHIN
OHIO, SELLING GAS ONLY TO OHIO CONSUMERS.  MOST OF THIS GAS IS
TRANSPORTED INTO OHIO FROM OTHER STATES THROUGH INTERSTATE PIPE LINES,
OWNED BY OTHER COMPANIES, WHICH CONNECT INSIDE OHIO WITH RESPONDENT'S
LARGE HIGH-PRESSURE LINES IN WHICH THE GAS, PROPELLED MAINLY BY ITS OWN
PRESSURE, FLOWS CONTINUOUSLY MORE THAN 100 MILES TO RESPONDENT'S LOCAL
DISTRIBUTION SYSTEMS.  HELD: 

1.  RESPONDENT IS A "NATURAL-GAS COMPANY" SUBJECT TO THE JURISDICTION
OF THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT.  PP. 467
474. 

(A)  THE CONTINUOUS FLOW OF GAS FROM OTHER STATES TO AND THROUGH
RESPONDENT'S HIGH-PRESSURE LINES CONSTITUTES INTERSTATE
TRANSPORTATION.  PP. 467-468. 

(B)  THE WORD "TRANSPORTATION" IN SEC. 1(B) OF THE ACT IS NOT LIMITED
TO COMPANIES WHICH BOTH TRANSPORT NATURAL GAS IN INTERSTATE COMMERCE
AND SELL IT FOR RESALE; IT APPLIES TO THE MOVEMENT OF INTERSTATE GAS IN
RESPONDENT'S HIGH-PRESSURE PIPE LINES, EVEN THOUGH RESPONDENT SELLS GAS
DIRECT TO CONSUMERS RATHER THAN FOR RESALE.  PP. 468-469, 471-474. 

(C)  RESPONDENT IS NOT EXEMPT FROM THE ACT ON THE GROUND THAT ALL ITS
FACILITIES COME WITHIN THE PROVISO IN SEC. 1(B) MAKING THE ACT
INAPPLICABLE "TO THE LOCAL DISTRIBUTION OF NATURAL GAS OR TO THE
FACILITIES USED FOR SUCH DISTRIBUTION," SINCE THIS WAS NOT INTENDED TO
EXEMPT HIGH-PRESSURE PIPE LINES TRANSPORTING INTERSTATE GAS TO LOCAL
MAINS.  PP. 469-471. 

(D)  NEITHER THE LANGUAGE OF THE ACT NOR ITS LEGISLATIVE HISTORY
INDICATES THAT CONGRESS MEANT TO CREATE AN EXCEPTION FOR EVERY COMPANY
THAT TRANSPORTS INTERSTATE GAS IN ONLY ONE STATE, EVEN WHEN THE COMPANY
IS FULLY SUBJECT TO STATE REGULATION AND SELLS GAS DIRECT TO CONSUMERS
RATHER THAN FOR RESALE.  PP. 471-474. 

2.  THE ORDER OF THE FEDERAL POWER COMMISSION REQUIRING RESPONDENT TO
KEEP ACCOUNTS AND SUBMIT REPORTS AS REQUIRED UNDER THE ACT IS NOT SO
BURDENSOME AS TO EXCEED CONSTITUTIONAL OR STATUTORY LIMITATIONS.  PP.
474-475. 

3.  THE COMMISSION'S ORDER DID NOT VIOLATE ANY RIGHTS RESERVED TO THE
STATES UNDER THE TENTH AMENDMENT.  P. 476. 

FEDERAL POWER COMMISSION V. EAST OHIO GAS CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE FEDERAL POWER COMMISSION FOUND THAT RESPONDENT WAS A NATURAL-GAS
COMPANY SUBJECT TO ITS JURISDICTION AND ORDERED RESPONDENT TO KEEP
ACCOUNTS AND SUBMIT REPORTS AS REQUIRED BY THE NATURAL GAS ACT, 15
U.S.C. SECS. 717 ET SEQ. 74 P.U.R. (N.S.)  256.  THE COURT OF APPEALS
REVERSED, ON THE GROUND THAT RESPONDENT WAS NOT "ENGAGED IN THE
TRANSPORTATION OF GAS IN INTERSTATE COMMERCE WITHIN THE MEANING OF THE
ACT."  84 U.S. APP. D.C. 312, 173 F.2D 429.  THIS COURT GRANTED
CERTIORARI.  337 U.S. 937.  REVERSED, P. 476. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

"SHALL APPLY TO THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE
COMMERCE, TO THE SALE IN INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE
FOR ULTIMATE PUBLIC CONSUMPTION  ...  AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION ...  "  SECTION 2(6) DEFINES "NATURAL-GAS COMPANY" AS "A
PERSON ENGAGED IN THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE
COMMERCE  ...  "  THE FEDERAL POWER COMMISSION, AFTER HEARINGS, FOUND
AS FACTS THAT RESPONDENT EAST OHIO GAS COMPANY WAS A NATURAL-GAS
COMPANY AND SUBJECT TO THE COMMISSION'S JURISDICTION N2.  ON THESE AND
SUBSIDIARY FINDINGS THE COMPANY WAS ORDERED TO KEEP ACCOUNTS AND SUBMIT
REPORTS AS REQUIRED BY THE ACT.  FN3 THE COMMISSION REJECTED THE
COMPANY'S CONTENTIONS  FN4  THAT ITS OPERATIONS WERE NOT COVERED BY THE
ACT AND THAT THE EXPENSE OF SUPPLYING THE REQUIRED INFORMATION WAS SO
GREAT AS TO TRANSGRESS STATUTORY AND CONSTITUTIONAL LIMITS.  FN5  THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, WITHOUT REACHING OTHER
CONTENTIONS, REVERSED THE COMMISSION'S ORDERS ON THE GROUND THAT THE
COMPANY WAS NOT "ENGAGED IN THE TRANSPORTATION OF NATURAL GAS IN
INTERSTATE COMMERCE WITHIN THE MEANING OF THE ACT."  FN6 IMPORTANCE OF
THE QUESTIONS TO ADMINISTRATION OF THE ACT PROMPTED US TO GRANT
CERTIORARI.  337 U.S. 937. 

             I. 

EAST OHIO OWNS AND OPERATES A NATURAL-GAS BUSINESS SOLELY IN OHIO,
SELLING GAS TO MORE THAN HALF A MILLION OHIO CONSUMERS THROUGH LOCAL
DISTRIBUTION SYSTEMS.  MOST OF THIS NATURAL GAS IS TRANSPORTED INTO
OHIO FROM KANSAS, TEXAS, OKLAHOMA, AND WEST VIRGINIA THROUGH PIPE LINES
OF PANHANDLE EASTERN PIPE LINE COMPANY AND OF HOPE NATURAL GAS COMPANY,
AN AFFILIATE OF EAST OHIO.  INSIDE THE OHIO BOUNDARY THESE INTERSTATE
LINES CONNECT WITH EAST OHIO'S LARGE HIGH-PRESSURE LINES IN WHICH THE
IMPORTED GAS, PROPELLED MAINLY BY ITS OWN PRESSURE, FLOWS CONTINUOUSLY
MORE THAN 100 MILES TO EAST OHIO'S LOCAL DISTRIBUTION SYSTEMS.  THE
COMBINED LENGTH OF THESE HIGH-PRESSURE TRUNK LINES IS AT LEAST 650
MILES. 

THAT THIS CONTINUOUS FLOW OF GAS FROM OTHER STATES TO AND THROUGH
EAST OHIO'S HIGH-PRESSURE LINES CONSTITUTES INTERSTATE TRANSPORTATION
HAS BEEN ESTABLISHED BY NUMEROUS PREVIOUS DECISIONS OF THIS COURT.  THE
GAS DOES NOT CEASE ITS INTERSTATE JOURNEY THE INSTANT IT CROSSES THE
OHIO BOUNDARY OR ENTERS EAST OHIO'S PIPES, EVEN THOUGH THAT COMPANY
OPERATES COMPLETELY WITHIN THE STATE WHERE THE GAS IS FINALLY
CONSUMED.  RESPONDENTS DO NOT AND CANNOT CLAIM THAT THEIR GAS IS NOT IN
INTERSTATE COMMERCE.  FN7  AS WE HELD IN INTERSTATE NATURAL GAS CO. V.
FEDERAL POWER COMM'N, 331 U.S. 682, 688, THE MEANING OF "INTERSTATE
COMMERCE" IN THIS ACT IS NO MORE RESTRICTED THAN THAT WHICH THERETOFORE
HAD BEEN GIVEN TO IT IN THE OPINIONS OF THIS COURT. 

RESPONDENTS CONTEND, HOWEVER, THAT THE WORD "TRANSPORTATION" IN SEC.
1(B) MUST BE CONSTRUED AS APPLYING ONLY TO COMPANIES ENGAGED IN THE
BUSINESS OF TRANSPORTING GAS IN INTERSTATE COMMERCE FOR HIRE OR FOR
SALES TO BE FOLLOWED BY RESALES, WHEREAS EAST OHIO DOES NEITHER.  THE
SHORT ANSWER IS THAT THE ACT'S LANGUAGE DID NOT EXPRESS ANY SUCH
LIMITATION.  DESPITE THE UNQUALIFIED LANGUAGE OF SEC. 1(B) MAKING THE
ACT APPLY TO "TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE,"
RESPONDENTS ASK US TO QUALIFY THAT LANGUAGE BY APPLYING IT ONLY TO
BUSINESSES WHICH BOTH TRANSPORT AND SELL NATURAL GAS FOR RESALE.  THEY
RELY ON A SENTENCE IN THE DECLARATION OF POLICY, SEC. 1(A), REFERRING
TO "THE BUSINESS OF TRANSPORTING AND SELLING NATURAL GAS."  BUT THEIR
CONTENTION THAT THE WORD "AND" IN THE POLICY PROVISION CREATES AN
UNSEVERABLE BOND IS COMPLETELY REFUTED BY THE CLEARLY DISJUNCTIVE
PHRASING OF SEC. 1(B) ITSELF.  AS WE POINTED OUT IN PANHANDLE EASTERN
PIPE LINE CO. V. PUBLIC SERVICE COMM'N, 332 U.S. 507, 516, SEC. 1(B)
MADE THE NATURAL GAS ACT APPLICABLE TO THREE SEPARATE THINGS:  "(1) THE
TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE; (2) ITS SALE IN
INTERSTATE COMMERCE FOR RESALE; AND (3) NATURAL GAS COMPANIES ENGAGED
IN SUCH TRANSPORTATION OR SALE."  AND THROUGHOUT THE ACT
"TRANSPORTATION" AND "SALE" ARE VIEWED AS SEPARATE SUBJECTS OF
REGULATION.  THEY HAVE INDEPENDENT AND EQUALLY IMPORTANT PLACES IN THE
ACT.  THUS, TO ADOPT RESPONDENTS' CONSTRUCTION WOULD UNDULY RESTRICT
THE COMMISSION'S POWER TO CARRY OUT ONE OF THE MAJOR POLICIES OF THE
ACT.  MOREOVER, THE INITIAL INTEREST OF CONGRESS IN REGULATION OF
TRANSPORTATION FACILITIES WAS REEMPHASIZED IN 1942 BY PASSAGE OF AN
AMENDMENT TO SEC. 7(C) OF THE ACT BROADENING THE COMMISSION'S POWERS
OVER THE CONSTRUCTION OR EXTENSION OF PIPE LINES.  56 STAT. 83.  THIS
AMENDMENT FOLLOWED A REPORT OF THE COMMISSION TO CONGRESS POINTING OUT
THAT WITHOUT AMENDMENT THE ACT VESTED THE COMMISSION WITH INADEQUATE
POWER TO MAKE "ANY SERIOUS EFFORT TO CONTROL THE UNPLANNED CONSTRUCTION
OF NATURAL-GAS PIPE LINES WITH A VIEW TO CONSERVING ONE OF THE
COUNTRY'S VALUABLE BUT EXHAUSTIBLE ENERGY RESOURCES."  N8  WE HOLD THAT
THE WORD "TRANSPORTATION" LIKE THE PHRASE "INTERSTATE COMMERCE" APTLY
DESCRIBES THE MOVEMENTS OF GAS IN EAST OHIO'S HIGH-PRESSURE PIPE
LINES.  FN9 

RESPONDENTS ALSO CONTEND THAT EAST OHIO IS EXEMPT FROM THE ACT
BECAUSE ALL ITS FACILITIES COME WITHIN THE PROVISO IN SEC. 1(B) MAKING
THE ACT INAPPLICABLE "TO THE LOCAL DISTRIBUTION OF NATURAL GAS OR TO
THE FACILITIES USED FOR SUCH DISTRIBUTION."  BUT WHAT CONGRESS MUST
HAVE MEANT BY "FACILITIES" FOR "LOCAL DISTRIBUTION" WAS EQUIPMENT FOR
DISTRIBUTING GAS AMONG CONSUMERS WITHIN A PARTICULAR LOCAL COMMUNITY,
NOT THE HIGH-PRESSURE PIPE LINES TRANSPORTING THE GAS TO THE LOCAL
MAINS.  FOR IN DECISIONS PRIOR TO ENACTMENT OF THE STATUTE THIS COURT
HAD SHARPLY DISTINGUISHED BETWEEN THE TWO:  IT HAD MADE IT CLEAR THAT
THE NATIONAL COMMERCE POWER ALONE COVERED THE HIGHPRESSURE TRUNK LINES
TO THE POINT WHERE PRESSURE WAS REDUCED AND THE GAS ENTERED LOCAL
MAINS, WHILE THE STATE ALONE COULD REGULATE THE GAS AFTER IT ENTERED
THOSE MAINS.  FN10  THE LEGISLATIVE HISTORY SHOWS THAT THE ATTENTION OF
CONGRESS WAS DIRECTLY FOCUSED ON THE CASES DRAWING THIS DISTINCTION. 
IT WAS BECAUSE THESE CASES HAD BARRED FEDERAL REGULATION OF COMMUNITY
SUPPLY SYSTEMS THAT THE COMMITTEE REPORT COULD CORRECTLY DESCRIBE THE
"LOCAL DISTRIBUTION" PROVISO AS SURPLUSAGE WHICH WAS "NOT ACTUALLY
NECESSARY."  FN11  WE ARE WHOLLY UNPERSUADED THAT CONGRESS INTENDED TO
TREAT TRUNK LINES LIKE EAST OHIO'S AS THOUGH THEY WERE MERE INTEGRATED
FACILITIES OF THE NUMEROUS COMMUNITY SUPPLY SYSTEMS WHICH THEY
SERVICE.  INDEED, AS RESPONDENTS ADMITTED UPON ORAL ARGUMENT HERE, THE
LOGICAL CONSEQUENCE OF SUCH A PRINCIPLE WOULD BE THAT EVEN A PIPE LINE
STRETCHING FROM TEXAS TO CLEVELAND WOULD BE COMPLETELY EXEMPT FROM THE
FEDERAL COMMISSION'S JURISDICTION IF IT WERE OWNED BY EAST OHIO.  TO
DRAW SUCH A STRAINED INFERENCE FROM THE CONGRESSIONAL EXEMPTION OF
LOCAL DISTRIBUTION SYSTEMS WOULD IGNORE THE IMPORTANCE OF NATIONALLY
CONTROLLING INTERSTATE PIPE LINES IN ORDER TO PRESERVE "EQUALITY OF
OPPORTUNITY AND TREATMENT AMONG THE VARIOUS COMMUNITIES AND STATES
CONCERNED."  MISSOURI V. KANSAS GAS CO., 265 U.S. 298, 310. 

WHAT WE HAVE SAID INDICATES THAT EAST OHIO COMES SQUARELY WITHIN THE
COVERAGE OF THE ACT AS SET OUT IN SECS. 1(B) AND 2(6).  NEVERTHELESS
RESPONDENTS CONTEND THAT THIS EXPRESS COVERAGE IS RESTRICTED BY THE
BROAD PURPOSE OF THE ACT TO PROVIDE FEDERAL REGULATION ONLY FOR THOSE
COMPANIES WHICH STATES COULD NOT REGULATE.  URGING THAT ALL OF EAST
OHIO'S BUSINESS IS FULLY SUBJECT TO REGULATION BY THE STATE, THEY RELY
ON STATEMENTS BY THIS COURT THAT CONGRESS INTENDED NOT TO CUT DOWN
STATE REGULATORY POWER, BUT RATHER TO SUPPLEMENT IT BY CLOSING "THE GAP
CREATED BY THE PRIOR DECISIONS."  PANHANDLE EASTERN PIPE LINE CO. V.
PUBLIC SERVICE COMM'N, 332 U.S. 507, 517-519; SEE ALSO PUBLIC UTILITIES
COMM'N OF OHIO V. UNITED FUEL GAS CO., 317 U.S. 456, 467.  WE ADHERE TO
THOSE STATEMENTS.  BUT PRIOR CONSTITUTIONAL DECISIONS, NOT WHAT WE HAVE
SINCE DECIDED OR WOULD DECIDE TODAY, FORM THE MEASURE OF THE GAP WHICH
CONGRESS INTENDED TO CLOSE BY THIS ACT.  ILLINOIS GAS CO. V. PUBLIC
SERVICE CO., 314 U.S. 498, 508; AND SEE PARKER V. MOTOR BOAT SALES, 314
U.S. 244, 250. 

IN A SERIES OF CASES REPEATEDLY CALLED TO THE ATTENTION OF THE HOUSE
COMMITTEE,  FN12  THIS COURT HAD DECLARED THAT STATES COULD REGULATE
INTERSTATE GAS ONLY AFTER IT WAS REDUCED IN PRESSURE AND ENTERED A
LOCAL DISTRIBUTION SYSTEM.  PUBLIC UTILITIES COMM'N V. LANDON, 249 U.S.
236, 243; MISSOURI V. KANSAS GAS CO., 265 U.S. 298, 310; PUBLIC
UTILITIES COMM'N V. ATTLEBORO CO., 273 U.S. 83, 89; AND SEE EAST OHIO
GAS CO. V. TAX COMM'N, 283 U.S. 465, 470-472 N13.  UNDER THESE
DECISIONS STATE REGULATORY POWER COULD NOT REACH HIGH-PRESSURE TRUNK
LINES AND SALES FOR RESALE.  THIS WAS THE "GAP" WHICH CONGRESS INTENDED
TO CLOSE.  IT THEREFORE ACTED UNDER THE FEDERAL COMMERCE POWER TO
REGULATE WHAT THESE DECISIONS HAD INDICATED THAT THE STATES COULD NOT. 
WE HAVE ALREADY HELD THAT IN SO DOING CONGRESS SUBJECTED TO FEDERAL
REGULATION A COMPANY TRANSPORTING INTERSTATE GAS, AND SELLING IT FOR
RESALE, WHOLLY WITHIN ONE STATE.  ILLINOIS GAS CO. V. PUBLIC SERVICE
CO., 314 U.S. 498.  FN14  THE ONLY RESPECT IN WHICH EAST OHIO DIFFERS
FROM THAT COMPANY IS THAT IT SELLS GAS DIRECT TO CONSUMERS RATHER THAN
FOR RESALE.  THIS DIFFERENCE IS IMMATERIAL.  FOR AS WE HAVE ALREADY
POINTED OUT, EAST OHIO COMES DIRECTLY WITHIN THE EXPRESS PROVISION
GRANTING POWER TO THE COMMISSION TO REGULATE "TRANSPORTATION OF NATURAL
GAS IN INTERSTATE COMMERCE," JUST AS THE ILLINOIS COMPANY CAME DIRECTLY
WITHIN THE EXPRESS PROVISION COVERING SALE FOR RESALE.  AND IN THE
LIGHT OF THE ILLINOIS GAS DECISION WE CANNOT SEE HOW THE "LOCAL
DISTRIBUTION" PROVISO CAN BE CONSTRUED AS ENCOMPASSING ALL OF EAST
OHIO'S OPERATIONS THROUGHOUT THE STATE.  THAT PROVISO CANNOT MEAN ONE
THING FOR "TRANSPORTATION" AND ANOTHER WHERE "SALE FOR RESALE" IS
INVOLVED. 

THERE AS ELSEWHERE, ONCE A COMPANY IS PROPERLY FOUND TO BE A "NATURAL
GAS COMPANY," NO STATE CAN INTERFERE WITH FEDERAL REGULATION.  THAT A
STATE COMMISSION MIGHT ALSO HAVE SOME REGULATORY POWER WOULD NOT
PRECLUDE EXERCISE OF THE COMMISSION'S FUNCTION.  CONNECTICUT LIGHT &
POWER CO. V. FEDERAL POWER COMM'N, 324 U.S. 515, 533; PUBLIC UTILITIES
COMM'N V. ATTLEBORO CO., 273 U.S. 83, 89-90.  NOR DOES THE ACT PURPORT
TO ABOLISH ALL OVERLAPPING.  SECTION 5(B), FOR EXAMPLE, PROVIDES THAT
THE COMMISSION MAY "INVESTIGATE AND DETERMINE THE COST OF THE
PRODUCTION OR TRANSPORTATION OF NATURAL GAS BY A NATURAL-GAS COMPANY IN
CASES WHERE THE COMMISSION HAS NO AUTHORITY TO ESTABLISH A RATE
GOVERNING THE TRANSPORTATION OR SALE OF SUCH NATURAL GAS."  52 STAT.
824.  YET CLEARLY THE STATE AGENCY ESTABLISHING SUCH A RATE WOULD HAVE
EQUIVALENT AUTHORITY. 

WE FIND NO LANGUAGE IN THE ACT INDICATING THAT CONGRESS MEANT TO
CREATE AN EXCEPTION FOR EVERY COMPANY TRANSPORTING INTERSTATE GAS IN
ONLY ONE STATE.  REGARDLESS OF WHETHER IT MIGHT HAVE BEEN WISER AND
MORE FARSEEING STATESMANSHIP FOR CONGRESS TO HAVE MADE SUCH AN
EXCEPTION, WE SHOULD NOT DO SO THROUGH THE INTERPRETATIVE PROCESS. 
THERE IS NOTHING IN THE LEGISLATIVE HISTORY WHICH AUTHORIZES US TO
INTERPRET AWAY THE PLAIN CONGRESSIONAL MANDATE. 

                                 II. 

A CONTENTION NOT PASSED ON BY THE COURT OF APPEALS BUT URGED HERE BY
RESPONDENTS, IS THAT COMPLIANCE WITH THE COMMISSION'S ACCOUNTING AND
REPORT ORDERS WOULD IMPOSE SO GREAT A BURDEN ON EAST OHIO "AS TO MAKE
SUCH ORDERS TRANSGRESS STATUTORY AND FEDERAL CONSTITUTIONAL LIMITS." 
OUR ATTENTION IS NOT SPECIFICALLY REFERRED TO ANYTHING IN THE RECORD
SHOWING THAT THE COMMISSION HAS REQUIRED EAST OHIO TO ADOPT ANY
PARTICULAR ACCOUNTING METHOD OR MAKE ANY PARTICULAR REPORT NOT
REASONABLY RELATED TO THE COMMISSION'S GRANTED POWERS IN THIS RESPECT. 
FN15  NOR DID THE COMMISSION FAIL TO MAKE PROPER FINDINGS TO SUPPORT
ITS ORDER.  ALL OF THE COMMISSION REQUIREMENTS AFFIRMATIVELY APPEAR TO
CALL FOR THE PRECISE KIND OF ACCOUNTING SYSTEM, INFORMATION, AND
REPORTS THAT CONGRESS DEEMED RELEVANT AND NECESSARY FOR THE COMMISSION
TO HAVE IN PERFORMING ITS REGULATORY DUTIES.  THE PRINCIPLES OF LAW
GOVERNING SUCH REQUIREMENTS WERE ADEQUATELY SET OUT BY MR. JUSTICE
CARDOZO SPEAKING FOR THE COURT IN AMERICAN TELEPHONE & TELEGRAPH CO. V.
UNITED STATES, 299 U.S. 232.  SEE ALSO NORTHWESTERN ELECTRIC CO. V.
FEDERAL POWER COMM'N, 321 U.S. 119.  MEASURED BY THESE CRITERIA FOR
JUDICIAL REVIEW OF SUCH ORDERS, WE FIND NO REASON TO REJECT THE
COMMISSION'S FINDINGS THAT THE ORDERS HERE ISSUED WERE NECESSARY AND
PROPER AS APPLIED TO EAST OHIO.  AND AS TO THE COST OF COMPLIANCE, IT
IS SUFFICIENT TO SAY AS THE COURT SAID IN THE AMERICAN TELEPHONE &
TELEGRAPH CASE, SUPRA, P. 247:  "THE EVIDENCE DOES NOT SHOW THAT THE
EXPENSE  ...  WILL LAY SO HEAVY A BURDEN UPON THE COMPANIES AS TO
OVERPASS THE BOUNDS OF REASON."  FN16    THE CONTENTION THAT THE
COMMISSION'S ORDER VIOLATES THE RESERVED RIGHTS OF THE STATES UNDER THE
TENTH AMENDMENT IS FORECLOSED BY THE COURT'S HOLDING IN NORTHWESTERN
ELECTRIC CO. V. FEDERAL POWER COMM'N, SUPRA, AT 125.  SECTION 8(A) OF
THE NATURAL GAS ACT ITSELF PROVIDES THAT "NOTHING IN THIS ACT SHALL
RELIEVE ANY SUCH NATURAL-GAS COMPANY FROM KEEPING ANY ACCOUNTS,
MEMORANDA, OR RECORDS WHICH SUCH NATURAL-GAS COMPANY MAY BE REQUIRED TO
KEEP BY OR UNDER AUTHORITY OF THE LAWS OF ANY STATE." 

THE COMMISSION'S ORDER IS VALID AND SHOULD BE ENFORCED.  REVERSED. 

FN1  52 STAT. 821, AS AMENDED BY 56 STAT. 83, 15 U.S.C. SEC. 717 ET
SEQ. 

FN2  THE COMMISSION INSTITUTED THE PROCEEDINGS ON ITS OWN MOTION AND
ON COMPLAINT OF THE CITY OF CLEVELAND, OHIO.  LATER OTHER OHIO CITIES
FILED SIMILAR COMPLAINTS.  SEE 1 F.P.C. 586; 4 F.P.C. 15; 4 F.P.C.
497. 

FN3  SEE NOTE 15 INFRA. 

FN4  THE PUBLIC UTILITIES COMMISSION OF OHIO, AN INTERVENOR, MADE
SUBSTANTIALLY THE SAME CONTENTIONS. 

FN5  74 P.U.R. (N.S.)  256.  RELATED ORDERS AND DISCUSSIONS APPEAR IN
4 F.P.C. 15, 497, 638, 28 P.U.R. (N.S.)  129; EAST OHIO GAS CO. V.
FEDERAL POWER COMM'N, 115 F.2D 385. 

FN6  84 U.S. APP. D.C. 312, 316, 173 F.2D 429, 433. 

FN7  SEE, E.G., COLORADO-WYOMING GAS CO. V. FEDERAL POWER COMMISSION,
324 U.S. 626; ILLINOIS NATURAL GAS CO. V. CENTRAL ILL. PUB. SERV. CO.,
314 U.S. 498, 503-4.  SEE ALSO EAST OHIO GAS CO. V. TAX COMMISSION, 283
U.S. 465, 470; THE DANIEL BALL, 10 WALL.  557. 

FN8  FEDERAL POWER COMMISSION, TWENTIETH ANNUAL REPORT (1940), P.
78.  SEE WHEAT, ADMINISTRATION BY THE FEDERAL POWER COMMISSION OF THE
CERTIFICATE PROVISIONS OF THE NATURAL GAS ACT, 14 GEO. WASH. L. REV.
194, 197. 

FN9  IN THE PIPE LINE CASES, 234 U.S. 548, 562, THIS COURT HELD THAT
THE UNCLE SAM OIL COMPANY WAS NOT ENGAGED IN "TRANSPORTATION" OF OIL,
WITHIN THE STATUTORY MEANING OF THAT WORD IN THE INTERSTATE COMMERCE
ACT, WHERE IT WAS "SIMPLY DRAWING OIL FROM ITS OWN WELLS ACROSS A STATE
LINE TO ITS OWN REFINERY FOR ITS OWN USE, AND THAT IS ALL  ...  "  THIS
HOLDING AS TO THE MEANING OF TRANSPORTATION IN THE INTERSTATE COMMERCE
ACT HAS SLIGHT FORCE, IF ANY, IN DETERMINATION OF THE WORD'S MEANING
UNDER THIS DIFFERENT AND FAR MORE COMPREHENSIVE ACT.  FURTHERMORE, EAST
OHIO IS NOT MERELY MOVING GAS FOR PROCESSING IN ITS OWN PLANTS.  IT
BUYS AND TRANSPORTS IT FOR SALE; THERE IS NO FURTHER PROCESSING OF ANY
KIND, EXCEPT FOR EVENTUAL REDUCTION OF PRESSURE.  THIS PUTS EAST OHIO'S
TRANSPORTATION MORE NEARLY IN THE CATEGORY OF THAT WHICH WE HELD TO
BRING OIL TRANSPORTATION WITHIN THE COVERAGE OF THE INTERSTATE COMMERCE
ACT.  VALVOLINE OIL CO. V. UNITED STATES, 308 U.S. 141, 145; CHAMPLIN
RFG.  CO. V. UNITED STATES, 329 U.S. 29.  IN THE LATTER CASE
TRANSPORTED OIL WAS TO BE SOLD IN INTERSTATE COMMERCE, WHILE HERE THE
SALE WAS TO BE MADE IN INTRASTATE COMMERCE.  THIS DIFFERENCE, HOWEVER,
IS NO PERSUASIVE REASON WHY THE SPECIAL HOLDING IN THE UNCLE SAM CASE
SHOULD BE EXPANDED TO CONTROL OUR HOLDING HERE. 

FN10  IN BOTH PUBLIC UTILITIES COMM'N V. LANDON, 249 U.S. 236, 245,
AND PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMM'N, 252 U.S. 23, 28,
THIS COURT HELD THAT STATES COULD REGULATE RETAIL SALES OF INTERSTATE
GAS TO LOCAL CONSUMERS.  IN THE LANDON CASE THE COURT REASONED THAT
STATE CONTROL OF A LOCAL DISTRIBUTING COMPANY WAS PERMISSIBLE BECAUSE
"INTERSTATE MOVEMENT ENDED WHEN THE GAS PASSED INTO LOCAL MAINS."  THE
PENNSYLVANIA GAS DECISION, HOWEVER, WAS BASED ON A COMPLETELY DIFFERENT
LINE OF REASONING.  THE COURT HELD THAT THE GAS CONTINUED IN INTERSTATE
COMMERCE UNTIL IT REACHED THE BURNER TIPS, BUT NEVERTHELESS PERMITTED
STATE REGULATION BECAUSE RETAIL SALES PRESENTED A PROBLEM OF LOCAL
RATHER THAN NATIONAL CONCERN.  IN MISSOURI V. KANSAS GAS CO., 265 U.S.
298, 310, THE COURT RESOLVED THESE CONFLICTING DOCTRINES BY READOPTING
THE LANDON RULE.  IT LIMITED THE PENNSYLVANIA GAS HOLDING TO ITS
PRECISE FACTS BY INTERPRETING THAT DECISION AS RESTING SOLELY ON THE
LANDON PRINCIPLE THAT STATES COULD REGULATE CHARGES FOR SERVICE TO
LOCAL CONSUMERS.  PUBLIC UTILITIES COMM'N V. ATTLEBORO CO., 273 U.S.
83, 89, REAFFIRMED THIS CHOICE OF DOCTRINE, APPLYING IT TO A COMPANY
WHICH LIKE EAST OHIO TRANSMITTED ITS PRODUCT (ELECTRICITY) WHOLLY
WITHIN ONE STATE.  IN EAST OHIO GAS CO. V. TAX COMM'N, 283 U.S. 465,
470-472, THE COURT RECOGNIZED THAT THE DOCTRINE OF PENNSYLVANIA GAS
EXTENDING INTERSTATE COMMERCE TO THE BURNER TIPS WAS IN CONFLICT WITH
AND MUST YIELD TO THE DOCTRINE OF THE LANDON AND KANSAS GAS CASES.  SEE
NOTE 13 INFRA.  THUS WHEN THE NATURAL GAS ACT WAS PASSED THIS COURT'S
DECISIONS HAD ALREADY RESULTED IN A SHARP CLEAVAGE BETWEEN LOCAL
DISTRIBUTION FACILITIES AND HIGH-PRESSURE PIPE LINES SERVING THOSE
FACILITIES. 

FN11  THE REPORT STATED THAT THE PROVISO WAS "NOT ACTUALLY NECESSARY,
AS THE MATTERS SPECIFIED THEREIN COULD NOT BE SAID FAIRLY TO BE COVERED
BY THE LANGUAGE AFFIRMATIVELY STATING THE JURISDICTION OF THE
COMMISSION."  H.R. REP. NO. 709, 75TH CONG., 1ST SESS., PP. 3-4.  THIS
COULD ONLY MEAN THAT THE PHRASE "INTERSTATE COMMERCE" WAS CONSTRUED BY
THE COMMITTEE, AS IT HAD BEEN BY THIS COURT, TO EXCLUDE "LOCAL
DISTRIBUTION." 

FN12  THE RECORD OF THE COMMITTEE HEARINGS CONSIDERING THE PROPOSED
BILL IS CROWDED WITH REPEATED REFERENCES TO THE CASES DISCUSSED IN NOTE
10 SUPRA; NO OTHER CASES RECEIVED SUCH EMPHASIS.  THE GENERAL SOLICITOR
FOR THE NATIONAL ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS,
FOR EXAMPLE, EXPLAINED THAT THE EAST OHIO CASE "ESTABLISHED VERY
CLEARLY THAT A STATE HAS JURISDICTION TO REGULATE THE BUSINESS OF
DISTRIBUTING GAS AFTER IT HAS BEEN IMPORTED, AND THE PRESSURE HAS BEEN
STEPPED DOWN TO PERMIT OF LOCAL DISTRIBUTION.  IT, HOWEVER, LEAVES THE
STATE AUTHORITIES STILL SUBJECT TO THE RULE ANNOUNCED IN THE KANSAS
CASE  ...  "  HEARINGS BEFORE THE HOUSE SUBCOMMITTEE OF THE COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE, 74TH CONG., 2D SESS., 88.  THE
SOLICITOR OF THE FEDERAL POWER COMMISSION POINTED OUT IN HIS BRIEF TO
THE SAME COMMITTEE THAT "THE STATES CANNOT CONTROL THE WHOLESALE RATES
EXTRACTED FOR NATURAL GAS THUS TRANSPORTED, NOR MAY THEY REGULATE ANY
OTHER OF THE PHASES OF THE INTERSTATE TRANSPORTATION."  ID., 16. 
AMENDMENTS WHICH WOULD HAVE SPECIFICALLY EXEMPTED FROM FEDERAL
REGULATION ALL COMPANIES OPERATING WHOLLY WITHIN ONE STATE WERE
PROPOSED BUT REJECTED. 

FN13  SEE NOTE 10 SUPRA.  THE EAST OHIO CASE CITED ABOVE CONCERNED
THE QUESTION OF WHETHER THE COMPANY WAS SUBJECT TO STATE TAXES.  THE
TAX DOCTRINES INVOLVED ARE IRRELEVANT HERE.  UNDENIABLY RELEVANT,
HOWEVER, IS THE FACT THAT CONGRESS DIRECTLY CONSIDERED THE DOCTRINE OF
INTERSTATE COMMERCE ENUNCIATED IN THAT CASE:  THAT TRANSPORTATION OF
OUT-OF-STATE GAS TO THE LOCAL SYSTEMS "IS ESSENTIALLY NATIONAL - NOT
LOCAL - IN CHARACTER AND IS INTERSTATE COMMERCE WITHIN AS WELL AS
WITHOUT THAT STATE."  283 U.S. 465, 470. 

FN14  THERE ARE IMPLICATIONS IN THE COURT'S OPINION THAT UNDER
PREVAILING CONSTITUTIONAL DOCTRINE A STATE MIGHT NOW, IN THE ABSENCE OF
FEDERAL LEGISLATION, REGULATE SUCH A COMPANY AS ILLINOIS GAS OR EAST
OHIO.  SEE ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S. 498, 504,
DISCUSSED IN PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMM'N,
332 U.S. 507, 512.  BUT COMPARE HOOD & SONS V. DU MOND, 336 U.S. 525,
545. 

FN15  THE ORDERS HERE PRIMARILY REST ON COMMISSION REGULATIONS
PURSUANT TO THE FOLLOWING SECTIONS.  SECTION 6(B) AUTHORIZES THE
COMMISSION TO REQUIRE A NATURAL-GAS COMPANY TO FILE "AN INVENTORY OF
ALL OR ANY PART OF ITS PROPERTY AND A STATEMENT OF THE ORIGINAL COST
THEREOF, AND ...  KEEP THE COMMISSION INFORMED REGARDING THE COST OF
ALL ADDITIONS, BETTERMENTS, EXTENSIONS, AND NEW CONSTRUCTION."  52
STAT. 824, 15 U.S.C. SEC. 717E (B).  SECTION 8(A) MAKES IT THE DUTY OF
SUCH COMPANIES TO KEEP "SUCH ACCOUNTS, RECORDS OF COST-ACCOUNTING
PROCEDURES," ETC., AS THE COMMISSION MAY BY RULES AND REGULATIONS
PRESCRIBE.  SECTION 10(A) SIMILARLY REQUIRES "ANNUAL AND OTHER PERIODIC
OR SPECIAL REPORTS."  SECTION 5(B) AUTHORIZES THE COMMISSION TO
"INVESTIGATE AND DETERMINE THE COST OF THE  ...  TRANSPORTATION OF
NATURAL GAS BY A NATURAL-GAS COMPANY" EVEN WHERE THE COMMISSION HAS NO
AUTHORITY TO ESTABLISH RATES FOR THE TRANSPORTATION OR SALE OF THAT
GAS.  SECTION 16 VESTS THE COMMISSION WITH BROAD POWERS TO PRESCRIBE
GENERAL ORDERS, RULES AND REGULATIONS FOUND "NECESSARY OR APPROPRIATE
TO CARRY OUT THE PROVISIONS OF THIS ACT." 

FN16  THE COMMISSION FOUND THAT EAST OHIO'S ESTIMATE PLACING THE COST
OF COMPLIANCE AT BETWEEN $1,500,000 AND $2,000,000 WAS "NOT CONVINCING,
FOR OUR EXPERIENCE WITH OTHER COMPANIES WITH GREATER PROPERTY
INVESTMENT INDICATES THAT THIS ESTIMATE IS CONSIDERABLY EXAGGERATED." 
74 P.U.R. (N.S.)  256, 263. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BURTON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

IF THIS WERE A CASE OF APPLYING AN EXPLICIT POLICY OF CONGRESS TO ONE
RECALCITRANT GAS COMPANY, THERE WOULD OF COURSE BE NO DISSENT.  BUT IF
IT WERE SUCH, WE WOULD NOT BE LIKELY TO FIND THE STATE OF OHIO AND HER
UTILITY COMMISSION, THE NATIONAL ASSOCIATION OF RAILROAD AND UTILITY
COMMISSIONERS, AND PUBLIC AUTHORITIES OF SEVERAL STATES, INCLUDING SOME
WITH NOTABLE RECORDS FOR PROTECTING THE PUBLIC INTEREST, HERE HELPING
THE UTILITY.  THIS ALLIANCE OF STATE AUTHORITIES AGAINST THE FEDERAL
POWER COMMISSION SUGGESTS THAT THERE MUST BE MORE TO THIS CASE THAN
MEETS THE EYE. 

THE KEY TO AN UNDERSTANDING OF THE FEDERAL NATURAL GAS ACT IS ITS
PURPOSE TO SUPPLEMENT BUT NOT TO SUPPLANT STATE REGULATION.  BEFORE
PASSAGE OF THE ACT, EACH STATE WAS ABLE TO REGULATE THE ULTIMATE PRICE
OF NATURAL GAS DISTRIBUTED TO ITS CONSUMERS.  PENNSYLVANIA GAS CO. V.
PUBLIC SERVICE COMM'N, 252 U.S. 23.  THIS COURT HAS NEVER DENIED ANY
STATE THAT POWER.  BUT IN DOING SO THEY WERE OBLIGED TO ALLOW AS
OPERATING COSTS WHAT THE DISTRIBUTING COMPANY PAID FOR THE GAS WHEN
BROUGHT INTO ITS SYSTEM FROM OUT OF THE STATE.  THIS PURCHASE PRICE THE
STATE COULD NOT REGULATE, OFTEN NOT EVEN INVESTIGATE, AND THE PURCHASES
FREQUENTLY WERE FROM AFFILIATES, A FACT WHICH MIGHT COOL THE LOCAL
COMPANY'S NORMAL ZEAL TO DRIVE A GOOD BARGAIN FOR ITSELF AND ITS
CONSUMERS.  HENCE, THE STATES APPEALED TO CONGRESS TO SET UP MACHINERY
TO FIX THE IMPORT PRICE OF OUT-OF-STATE GAS.  THIS WAS ALL THAT THE
STATES ASKED THE FEDERAL GOVERNMENT TO DO, AND IT IS EVERYTHING THAT
THE FEDERAL POWER COMMISSION REVEALED ANY PURPOSE TO DO WHILE THE
LEGISLATION WAS PENDING.  ITS SOLICITOR SUMMARIZED THE PURPOSES BEFORE
A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, AS FOLLOWS:  "THE WHOLE PURPOSE OF THIS BILL IS TO BRING
UNDER FEDERAL REGULATION THE PIPE LINES AND TO LEAVE TO THE STATE
COMMISSIONS CONTROL OVER DISTRIBUTING COMPANIES AND OVER THEIR RATES,
WHETHER THAT GAS MOVES IN INTERSTATE COMMERCE OR NOT."  HEARINGS BEFORE
A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.R. 11662, 74TH CONG., 2D SESS., 24.  THAT IS WHAT THE
STATE AUTHORITIES ACTIVE IN PROMOTING THE LEGISLATION SEEM TO HAVE
BELIEVED HAD BEEN ACCOMPLISHED. 

EAST OHIO IS AN ALL-OHIO COMPANY, DERIVING INCOME SOLELY FROM
DISTRIBUTING GAS DIRECTLY TO OHIO CONSUMERS.  IT SELLS NO GAS FOR
RESALE.  ALL OF ITS ASSETS ARE LOCATED AND ALL OF ITS BUSINESS IS
TRANSACTED IN OHIO.  SINCE 1911, THE OHIO STATE COMMISSION HAS
EXERCISED REGULATORY POWERS OVER IT WHICH HAVE INCLUDED RATE-MAKING,
AUTHORIZING ACQUISITION OF SALE OF PROPERTY, APPROVAL OF CAPITALIZATION
AND SECURITY ISSUES, COMPLETE CONTROL OF ACCOUNTING PRACTICES AND
REQUIRING DETAILED PERIODIC REPORTS.  EXCEPT FOR INABILITY TO FIX THE
PRICE AT WHICH GAS SHOULD BE DELIVERED TO THE COMPANY AT THE STATE
LINE, OHIO IS ABLE TO SUPERVISE AND REGULATE THIS UTILITY COMPLETELY
AND CONTINUOUSLY. 

THE FEDERAL POWER COMMISSION, AS AUTHORIZED BY THE ACT, FIXED THE
STATE-LINE PRICE THAT EAST OHIO MUST PAY FOR ITS OUT-OF-STATE
SUPPLIES.  BUT NOW IT SEEKS TO GO BEYOND THIS AND SUPERIMPOSE SOME
FEATURES OF ITS REGULATION WHICH CONFLICT WITH THE REGULATION OF THE
IDENTICAL SUBJECT MATTER BY THE STATE OF OHIO.  HOW MUCH FARTHER THAN
THE ORDER HERE UNDER REVIEW THE COMMISSION WILL GO IN SUPPLANTING OR
DUPLICATING STATE REGULATION IS NOT CLEAR FROM ITS ARGUMENT, AND HOW
FAR IT CAN GO IS RENDERED UNCLEAR BY THE COURT'S OPINION WHICH
EXPRESSLY APPROVES SOME OVERLAPPING BUT LEAVES ITS BOUNDS IN CAREFULLY
STATED DOUBT.  THE ANXIETY WHICH THIS PROGRAM STIRS AMONG OTHER STATES
IS EXPLAINED BY ITS MAGNITUDE.  THE POWER COMMISSION IN ITS PETITION
HERE NOTES FORTY-THREE PENDING CASES IN WHICH IT TAKES THIS SAME
POSITION VIS-A-VIS STATE REGULATION. 

IT APPEARS THAT THE PRESENT PARTICULAR ISSUE ARISES BECAUSE THE
COMMISSION HAS THEORIES OF ACCOUNTING DIFFERENT FROM THOSE THE STATE
HAS SEEN FIT TO ACCEPT.  THE FEDERAL COMMISSION HAS ORDERED EAST OHIO
TO CHANGE ITS ENTIRE ACCOUNTING SYSTEM FOR ALL OF ITS PROPERTIES AT A
VERY HEAVY COST.  THIS REQUIRES IT EITHER TO CONDUCT ITS ACCOUNTING
CONTRARY TO LAWS OF OHIO AND THE ORDERS OF THE STATE COMMISSION OR
PERHAPS TO KEEP TWO SETS OF BOOKS.  THIS IS A REAL CONFLICT IN WHICH
EXPERIENCE SHOWS STATE CONTROL WILL WITHER AWAY AND LEAVE THE FEDERAL
RULE IN POSSESSION OF THE FIELD.    THIS COURT CAN SUSTAIN SUCH
OVERLAPPING AND OVERRIDING OF THE STATE'S AUTHORITY ONLY BY REPUDIATING
ITS OWN RECENT STATEMENTS.  AFTER REVIEWING THE HISTORY OF THE NATURAL
GAS ACT, WE HAVE SAID THAT "CONGRESS MEANT TO CREATE A COMPREHENSIVE
SCHEME OF REGULATION WHICH WOULD BE COMPLEMENTARY IN ITS OPERATION TO
THAT OF THE STATES, WITHOUT ANY CONFUSION OF FUNCTIONS."  PUBLIC
UTILITIES COMM'N V. UNITED FUEL GAS CO., 317 U.S. 456, 467.  IN A LATER
CASE, QUOTING H.R. REP. NO. 709, 75TH CONG., 1ST SESS., WE SAID THAT
"THE BILL WAS DESIGNED TO TAKE 'NO AUTHORITY FROM STATE COMMISSIONS'
AND WAS 'SO DRAWN AS TO COMPLEMENT AND IN NO MANNER USURP STATE
REGULATORY AUTHORITY.'"  FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO.,
320 U.S. 591, 610.  QUOTING THE SAME HOUSE REPORT, WE THEREAFTER
POINTED OUT THAT "THE 'BASIC PURPOSE' OF CONGRESS IN PASSING THE
NATURAL GAS ACT WAS 'TO OCCUPY THIS FIELD IN WHICH THE SUPREME COURT
HAS HELD THAT THE STATES MAY NOT ACT.'"  INTERSTATE NATURAL GAS CO. V.
FEDERAL POWER COMM'N, 331 U.S. 682, 690.  AND ONLY LAST YEAR WE
OBSERVED THAT, "THE NATURAL GAS ACT WAS DESIGNED TO SUPPLEMENT STATE
POWER AND TO PRODUCE A HARMONIOUS AND COMPREHENSIVE REGULATION OF THE
INDUSTRY.  NEITHER STATE NOR FEDERAL REGULATORY BODY WAS TO ENCROACH
UPON THE JURISDICTION OF THE OTHER."  FEDERAL POWER COMM'N V. PANHANDLE
EASTERN PIPE LINE CO., 337 U.S. 498, 513. 

WHAT DEFINES THE POINT BEYOND WHICH THE PROVISIONS OF THE ACT SHALL
NOT APPLY?  THE COURT SUGGESTS THAT THERE IS AN INHERENT LIMITATION ON
THE AFFIRMATIVE GRANT OF POWER WHICH WOULD RENDER SURPLUSAGE THE CLAUSE
IN SEC. 1(B) DENYING APPLICATION OF THE ACT TO "THE LOCAL DISTRIBUTION
OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH DISTRIBUTION."  OR IT
MAY BE THIS EXCLUSIONARY CLAUSE ITSELF.  AT ANY RATE, THE COURT FINDS
THE DIVIDING LINE OF JURISDICTION TO BE DRAWN BY PHYSICAL
CHARACTERISTICS OF THE TRANSMISSION LINES.  IT SEIZES UPON THE POINT
WHERE THE HIGH PRESSURE AT WHICH GAS IS TRANSMITTED ANY SUBSTANTIAL
DISTANCE IS REDUCED TO THE LOW PRESSURE AT WHICH IT MUST BE SERVED TO
CUSTOMERS' BURNERS THROUGH THE COMMUNITY SUPPLY LINES AS THE OUTER
LIMIT OF THE "LOCAL" AREA RESERVED TO THE STATES. 

RECOGNIZING THE PURPOSE OF THE FEDERAL NATURAL GAS ACT OF JUNE 21,
1938, TO REGULATE ONLY THAT WHICH WAS UNREGULATED AND UNREGULATABLE BY
THE STATES, THE COURT ASSUMES THAT DECISIONS PRIOR TO ITS PASSAGE, "NOT
WHAT WE HAVE SINCE DECIDED OR WOULD DECIDE TODAY," FIX THE STATES'
POWER FOR THE PURPOSES OF MEASURING THAT OF THE COMMISSION.  THE COURT
HAS HERETOFORE FOLLOWED THE PRINCIPLE THAT CONGRESS DOES NOT INTEND TO
FREEZE THE IMPACT OF ITS LEGISLATION WITHIN CURRENT JUDICIAL DECISIONS
IN THE ABSENCE OF EVIDENCE WHICH MAKES SUCH INTENTION UNMISTAKABLE. 
UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533.  BUT
TODAY IT MAKES NO EFFORT TO LOOK FOR EVIDENCE OF SUCH AN INTENTION AND
HAD IT SEARCHED IT WOULD NOT HAVE FOUND IT.  CF. HELVERING V.
GRIFFITHS, 318 U.S. 371; PARKER V. MOTOR BOAT SALES, 314 U.S. 244. 

TODAY'S ANOMALOUS RESULT WHEREBY THE COMMISSION IS GIVEN REGULATORY
POWER OVER THE INTRASTATE DISTRIBUTION FACILITIES OF A GAS COMPANY OVER
WHOSE SALES IT ADMITTEDLY HAS NO JURISDICTION IS BASED UPON THE PREMISE
THAT PARAMOUNT IN CONGRESS' MIND IN DEALING WITH CASES PRIOR TO PASSAGE
OF THE ACT, WAS, NOT THE HOLDINGS OF APPLICABLE CASES RELATING TO
REGULATION, BUT THE PECULIARLY MECHANISTIC FORMULA EMPLOYED PRINCIPALLY
IN 1931 IN EAST OHIO GAS CO. V. TAX COMM'N, 283 U.S. 465, FN1  AS A
MEANS OF HOLDING THAT THE STATE OF OHIO COULD LEVY AN EXCISE TAX BASED
ON THE ENTIRE GROSS RECEIPTS FROM SALES TO LOCAL CONSUMERS BY AN
INTERSTATE GAS COMPANY. 

I FIND NO CONVINCING INDICATION, EITHER IN THE LANGUAGE OF THE ACT OR
IN ITS LEGISLATIVE HISTORY, THAT CONGRESS INTENDED THAT WE SHOULD BE
FOREVER BOUND, IN CONSTRUING THIS LEGISLATION, EITHER BY THE THEN
CURRENT DECISIONS AS TO LIMITATIONS OF THE COMMERCE CLAUSE ON STATE
POWER, CF. UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., SUPRA, OR
BY THE THEN CURRENT CRITERIA OF WHAT SEPARATED LOCAL FROM NONLOCAL
FACILITIES.  THE CRUCIAL QUESTION IS NOT WHETHER THIS COURT IN 1931
WOULD HAVE HELD A GIVEN FACTUAL SITUATION WITHOUT THE AREA OF LOCAL
DISTRIBUTION AND BEYOND THE REACH OF STATE REGULATION, BUT WHETHER THIS
COURT TODAY CAN SAY THAT THE FEDERAL POWER CAN BE EXERTED BECAUSE THE
STATE POWER CANNOT BE EXERTED.  SO LONG AS WE PAY EVEN LIP SERVICE TO
CONGRESS' INTENTION TO LEAVE TO THE STATES THAT WHICH THEY CAN
REGULATE, WE CANNOT SATISFACTORILY BEG THIS QUESTION. 

BUT EVEN IF THE COURT IS TO SHIFT TO THE DOCTRINE THAT CONGRESS CASTS
ITS ACTS FOREVER IN THE MOLD MADE BY PRIOR DECISIONS OF THIS COURT, THE
PRESSURE-REDUCTION STATION NOW RELIED UPON TO LIMIT "LOCAL" HAD LOST
ITS STANDING EVEN IN TAX CASES AND NEVER WAS ACCEPTED IN REGULATION
CASES.  IF CONGRESS WAS INTERESTED IN TAX CASE CRITERIA WHEN IT PASSED
THE NATURAL GAS ACT, IT MUST HAVE KNOWN OF THIS COURT'S DISDAINFUL
DISREGARD OF PRESSURE CHANGES IN FAVOR OF EMPHASIS ON THE DIFFERENCE
BETWEEN WHOLESALE AND RETAIL DISTRIBUTION LESS THAN HALF A YEAR AFTER
THE EAST OHIO TAX DECISION.  STATE TAX COMM'N V. INTERSTATE NATURAL GAS
CO., 284 U.S. 41.  FN2 

AND YET, ALTHOUGH THE COMMITTEE REPORTS AND THE RECORDS OF
CONGRESSIONAL DEBATES ON THE NATURAL GAS ACT MAY BE SCANNED IN VAIN FOR
ANY MENTION OF THIS PRESSURE-REDUCTION POINT, WE ARE NOW ASKED TO
BELIEVE THAT CONGRESS FIXED IT AS THE POINT WHERE STATE CONTROL SHOULD
END AND FEDERAL CONTROL SHOULD BEGIN.  WITH THIS APPROACH, TODAY'S
DECISION CONFINES THE STATES' REGULATORY POWER TO THE SERVICE AREA,
BOUNDED BY THE LOW-PRESSURE TRANSMISSION SYSTEM, WHICH MEANS
PRACTICALLY WITHIN THE CITY GATES.  BY ITS EMPHASIS ON THIS PRESSURE
CHANGE THE COURT FINDS A PLAIN CONGRESSIONAL GRANT OF COMMISSION
JURISDICTION OVER HIGH-PRESSURE PIPE LINES SUCH AS THOSE OF EAST OHIO. 
HOWEVER, THIS PRESSURE FACTOR IS ONE WHICH WE FOUND IMMATERIAL IN
INTERSTATE NATURAL GAS CO. V. FEDERAL POWER COMM'N, SUPRA, 689, WHERE,
WITH RARE UNANIMITY, WE PUT OUR EMPHASIS UPON THE FACT OF SALE FOR
RESALE IN INTERSTATE COMMERCE.  BUT TODAY IT IS THE DIFFERENCE BETWEEN
RETAIL AND WHOLESALE OPERATIONS WHICH IS TERMED IMMATERIAL, SO LONG AS
THE FACTOR OF HIGH-PRESSURE PIPE LINES IS PRESENT. 

THIS SHIFT IN EMPHASIS RESTS UPON INFERENCES DRAWN FROM THE
LEGISLATIVE HISTORY OF THE NATURAL GAS ACT WHICH ARE WHOLLY
INCONSISTENT WITH THOSE DRAWN IN OUR PRIOR DECISIONS EXAMINING THE
SUBJECT.  HERETOFORE WE HAVE BEEN CAREFUL CONSISTENTLY TO OBSERVE THAT
CONGRESS DID NOT ATTEMPT TO OCCUPY THE ENTIRE FIELD WITHIN THE LIMITS
OF ITS CONSTITUTIONAL POWER, AND UNTIL TODAY WE HAVE INSISTED THAT IN
EXTENDING FEDERAL REGULATION CONGRESS "WAS METICULOUS TO TAKE IN ONLY
TERRITORY WHICH THIS COURT HAD HELD THE STATES COULD NOT REACH." 
PANHANDLE EASTERN PIPE LINE CO. V. COMM'N, 332 U.S. 507, 519.  WE SAID
ONLY TWO YEARS AGO IN THAT CASE THAT "BY 1938 THE COURT HAD DELINEATED
BROADLY BETWEEN THE AREA OF PERMISSIBLE STATE CONTROL AND THAT IN WHICH
THE STATES COULD NOT INTRUDE.  THE FORMER INCLUDED INTERSTATE DIRECT
SALES TO LOCAL CONSUMERS, AS EXEMPLIFIED IN PENNSYLVANIA GAS CO. V.
PUBLIC SERVICE COMM'N, 252 U.S. 23; THE LATTER, SERVICE INTERSTATE TO
LOCAL DISTRIBUTING COMPANIES FOR RESALE, AS HELD IN MISSOURI V. KANSAS
GAS CO., 265 U.S. 298, REINFORCED BY PUBLIC UTILITIES COMM'N V.
ATTLEBORO CO., 273 U.S. 83."  AND WE WENT ON TO SAY THAT THE PURPOSE OF
THE LEGISLATION WAS TO MAKE STATE REGULATION EFFECTIVE "BY ADDING THE
WEIGHT OF FEDERAL REGULATION TO SUPPLEMENT AND REINFORCE IT IN THE GAP
CREATED BY THE PRIOR DECISIONS."  ID., PP. 514, 517.  AND SEE
INTERSTATE NATURAL GAS CO. V. FEDERAL POWER COMM'N, 331 U.S. 682, 689;
ALSO, FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591, 609,
QUOTING FROM ILLINOIS NATURAL GAS CO. V. PUBLIC SERVICE CO., 314 U.S.
498, 506.  WE COULD HARDLY HAVE SAID MORE CLEARLY THAT THE "GAP" WAS IN
THE WHOLESALE REALM OF THE NATURAL-GAS INDUSTRY IN INTERSTATE
COMMERCE. 

THE COURT'S OPINION PROFESSES TO ADHERE TO THESE STATEMENTS RELATING
TO THE GAP CONGRESS INTENDED TO CLOSE.  BUT IT FIRST WIDENS THE GAP,
SQUARELY UPON THE PREMISE THAT, UNDER DECISIONS OF THIS COURT CALLED TO
CONGRESS' ATTENTION PRIOR TO PASSAGE OF THE ACT, THE STATE REGULATORY
POWER COULD NOT REACH TRANSMISSION LINES FOR INTERSTATE GAS OUTSIDE THE
POINT OF REDUCTION IN PRESSURE.  ACTUALLY, NO DECISION COULD HAVE BEEN
CALLED TO THE ATTENTION OF CONGRESS, AND NONE IS OR CAN BE CITED TODAY,
IN WHICH THIS COURT HELD THAT ANY OF THE INTRASTATE TRANSMISSION LINES
OF ANY RETAIL GAS, ELECTRIC OR SIMILAR COMPANY, WITHIN OR WITHOUT THE
PRESSURE-REDUCTION POINT, WERE BEYOND THE STATE REGULATORY AUTHORITY. 
NOR WAS THIS QUESTION EVEN AT ISSUE IN ANY CASE CITED BY THE COURT IN
SUPPORT OF ITS PREMISE.  THAT IS NOT TO SAY THAT THE QUESTION WAS NOT
CONSIDERED, HOWEVER.  QUITE TO THE CONTRARY, LESS THAN TWO MONTHS
BEFORE PASSAGE OF THE NATURAL GAS ACT, THIS COURT, THROUGH THE PEN OF
MR. CHIEF JUSTICE HUGHES, IN A CASE NOT CITED BY THE COURT, DECLARED
THAT SUCH TRANSMISSION LINES WERE PROPERLY WITHIN THE SPHERE OF STATE
RATE-MAKING POWERS.  LONE STAR GAS CO. V. TEXAS, 304 U.S. 224.  FN3
AND SO IF CONGRESS WERE CONSULTING THE DECISIONS OF THIS COURT TO
DEFINE THE GAP IN STATE POWER, WHICH IT MUST FILL WITH THE COMMISSION'S
FUNCTION, IT FOUND THE LATEST, AND ALL BUT UNANIMOUS ONE, TO DECLARE
THAT NO GAP SUCH AS THE COURT PERCEIVES TODAY WAS THEN EXISTENT. 

ALTHOUGH THE SCOPE OF THE NATURAL GAS ACT WAS NOT LIMITED TO SALES OF
NATURAL GAS IN INTERSTATE COMMERCE FOR RESALE, IT MUST BE RECOGNIZED
THAT, IF ANY ONE THING IS CLEAR FROM THE LEGISLATIVE HISTORY OF THIS
ACT, IT IS THAT CONGRESS' PARAMOUNT CONCERN WAS TO ESTABLISH REGULATION
OF SUCH PRICES.  FN4  AND IT MUST LIKEWISE BE RECOGNIZED THAT WHATEVER
OF OUR OLD DOCTRINES MAY HAVE BEEN FROZEN INTO THE ACT COULD NOT
INCLUDE THE POINT OF PRESSURE REDUCTION AND ENTRANCE INTO MUNICIPAL
LINES AS THE MEASURE OF STATE REGULATORY AUTHORITY, FOR NO SUCH
DOCTRINE CAN BE FOUND IN OUR CASES. 

THUS IT IS APPARENT THAT IN SELECTING THE POINT TO MARK EITHER THE
INHERENT LIMITATION IN THE ACT'S AFFIRMATIVE GRANT OF POWER TO THE
COMMISSION, OR THE COROLLARY LIMIT IMPOSED BY THE CLAUSE EXCLUDING
FACILITIES USED IN LOCAL DISTRIBUTION, THE COURT HAS RESORTED TO
CRITERIA NEITHER SUPPORTABLE BY THIS COURT'S DECISIONS PRIOR TO THE ACT
NOR EVEN CLAIMED TO BE CONSISTENT WITH ITS MOST RECENT DOCTRINES. 

BUT IF THE PRESSURE-REDUCTION POINT CANNOT BE RESURRECTED FROM THE
EAST OHIO TAX CASE TO BOUND THE FACILITIES USED IN THE LOCAL
DISTRIBUTION OF NATURAL GAS IN INTERSTATE COMMERCE, WHAT CRITERIA CAN
WE EMPLOY?  IT IS NOT AS THOUGH A SIMPLE, UNSOPHISTICATED ANSWER WERE
NOT AVAILABLE.  IT SEEMS TO ME THAT THE OBVIOUS ANSWER IS THAT
INTRASTATE TRANSMISSION LINES OF A RETAIL GAS COMPANY DEVOTED
EXCLUSIVELY TO SERVING COMMUNITIES WITHIN THE STATE ARE FACILITIES USED
IN THE LOCAL DISTRIBUTION OF NATURAL GAS AND ARE ACCORDINGLY EXCEPTED
FROM APPLICATION OF THE ACT.  FOR IT MUST NOT BE FORGOTTEN THAT IF
JUSTIFICATION FOR TODAY'S DECISION CANNOT BE FOUND IN SEC. 1(B) OF THE
ACT, IT CANNOT BE ESTABLISHED BY RESORT TO THE LANGUAGE OF THOSE
JURISDICTIONAL.  IT SETS FORTH THE AREAS TO WHICH THE PROVISIONS OF THE
ACT SHALL AND SHALL NOT APPLY.  ITS "BUT" CLAUSE WAS CONGRESS'
ASSURANCE TO THE STATE BODIES SPONSORING THE LEGISLATION THAT FEDERAL
CONTROL WOULD NOT EXTEND TO THE AREA WITHIN THEIR AUTHORITY.  CF.
CONNECTICUT LIGHT & POWER CO. V. FEDERAL POWER COMM'N, 324 U.S. 515,
527. 

THIS SIMPLE SOLUTION SQUARES NOT ONLY WITH MODERN STANDARDS, BUT ALSO
WITH THE APPROACH, IF IT IS TO BE ADOPTED, THAT CONGRESS IN PASSING
THIS ACT FROZE INTO LAW CURRENT JUDICIAL DECISIONS.  IT KEEPS FAITH
WITH THE STATES.  IT IS DECIDEDLY CONSISTENT WITH OUR RECENT
DECLARATION UNDER THE ALMOST IDENTICAL WORDS OF A SIMILAR ACT THAT
LIMITATION OF LOCAL FACILITIES WAS NOT TO BE FOUND IN THE EAST OHIO TAX
FORMULA, AND THAT EVEN THE TRANSMISSION LINES OF A STATE-WIDE SYSTEM
SUPPLYING ELECTRIC POWER TO CONSUMERS IN OVER A HUNDRED COMMUNITIES ARE
"FACILITIES USED IN LOCAL DISTRIBUTION."  CONNECTICUT LIGHT & POWER CO.
V. FEDERAL POWER COMM'N, SUPRA. 

OF COURSE, THIS SOLUTION DOES NOT RENDER MEANINGLESS THE
"TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE" TO WHICH THE
PROVISIONS OF THE ACT APPLY.  FOR INSTANCE IT WOULD LOGICALLY ENOUGH
GIVE TO THE FEDERAL POWER COMMISSION, UNDER THE ABOVE "TRANSPORTATION
CLAUSE," EXCLUSIVE JURISDICTION OVER THE MAIN TRANSMISSION LINES OF A
RETAIL GAS COMPANY WHICH RAN THROUGH OHIO AND ON INTO NEW YORK; BUT IT
WOULD LEAVE TO OHIO EXCLUSIVE JURISDICTION OVER LATERAL LINES BRANCHING
OUT FROM THE MAIN TRUNK IN OHIO AND, WHETHER ONE OR ONE HUNDRED MILES
LONG, DEVOTED EXCLUSIVELY TO DELIVERING GAS TO THE BURNER TIPS IN OHIO
COMMUNITIES.  SIMILARLY, UNDER THE HYPOTHESIS CONSTRUCTED IN THE
COURT'S OPINION, WHEREIN EAST OHIO IS PICTURED AS HAVING ITS OWN
TRANSMISSION LINES EXTENDING ALL THE WAY FROM TEXAS, IT WOULD GIVE
EXCLUSIVELY TO THE POWER COMMISSION JURISDICTION OVER THOSE LINES
BEYOND THE OHIO BORDER AS WELL AS OVER THOSE WITHIN OR WITHOUT THE
STATE NOT DEVOTED EXCLUSIVELY TO SERVING OHIO CONSUMERS AT RETAIL. 
AGAIN, IT WOULD, QUITE OBVIOUSLY WITHIN THE WORDS OF THE ACT, GIVE
EXCLUSIVELY TO THE POWER COMMISSION JURISDICTION OVER COMPANIES WHICH
MIGHT ACT IN THE NATURE OF COMMON CARRIERS TRANSPORTING GAS IN
INTERSTATE COMMERCE FOR HIRE.  IN SHORT IT WOULD GIVE TO THE
TRANSPORTATION CLAUSE A MEANING WHICH, CONTRARY TO TODAY'S OPINION,
DOES NOT RENDER SURPLUSAGE THE "SALE IN INTERSTATE COMMERCE OF NATURAL
GAS FOR RESALE" TO WHICH THE PROVISIONS ALSO APPLY.  FN5    WHAT THE
POWER COMMISSION ASKS THE COURT TO DO TODAY IS NOT TO FILL A GAP IN THE
STATE'S POWER TO REGULATE, FOR THERE IS NONE, BUT TO CREATE A GAP IN
ORDER TO MAKE ROOM FOR FEDERAL POWER. 

I CAN WELL UNDERSTAND THE ZEAL OF THE FEDERAL POWER COMMISSION TO
EXPAND ITS CONTROL OVER THE NATURAL GAS INDUSTRY.  IT SPRAWLS OVER MANY
STATES AND EACH SYSTEM MUST BE PHYSICALLY INTEGRATED FROM THE DEPTHS OF
THE WELLS TO THE CONSUMER'S BURNER TIPS.  ITS REGULATION CANNOT BE
UNIFORM IF THE FEDERAL COMMISSION CONTROLS ONLY A MIDDLE SEGMENT, WITH
PRODUCTION ON ONE END AND DISTRIBUTION ON THE OTHER COMMITTED TO THE
CONTROL OF DIFFERENT STATES.  BUT THAT WAS AS FAR AS CONGRESS WAS
WILLING TO SUPERSEDE STATE AUTHORITY.  IT LEFT THE PECULIAR PROBLEMS
AFFECTING PRODUCTION TO THE PRODUCING STATES, IT LEFT THE ULTIMATE
PROTECTION OF CONSUMERS TO THE CONSUMING STATES, AND IT LEFT THE
FEDERAL POWER COMMISSION IN THE MIDDLE TO FIX THE RATES FOR GAS MOVING
BETWEEN THE TWO.  THIS OBVIOUSLY SUBDIVIDES REGULATION OF WHAT HAS TO
OPERATE AS A UNITARY ENTERPRISE, BUT THAT IS OFTEN THE CONSEQUENCE OF
OUR FEDERAL SYSTEM.  WHATEVER WE MAY THINK WOULD BE WISE POLICY IN THIS
FIELD, THE ACT WHICH CONGRESS PASSED PLACES LIMITATIONS UPON THE POWER
COMMISSION, WHICH MAY CHAFE BUT WHICH NEITHER WE NOR THE COMMISSION ARE
FREE TO OVERRIDE.  IF THE COMMISSION HAD FORESHADOWED ITS PRESENT
COURSE, I DO NOT SUPPOSE THE ACT WOULD HAVE PASSED, FOR IT CERTAINLY
WOULD HAVE EVOKED RESISTANCE OF THE STATE REGULATORY AGENCIES INSTEAD
OF THEIR SUPPORT. 

CONGRESS MAY WELL HAVE BELIEVED THAT DIVERSITY OF EXPERIMENTATION IN
THE FIELD OF REGULATION HAS VALUES WHICH CENTRALIZATION AND UNIFORMITY
DESTROY.  AS MR. JUSTICE BRANDEIS SAID, "IT IS ONE OF THE HAPPY
INCIDENTS OF THE FEDERAL SYSTEM THAT A SINGLE COURAGEOUS STATE MAY, IF
ITS CITIZENS CHOOSE, SERVE AS A LABORATORY; AND TRY NOVEL SOCIAL AND
ECONOMIC EXPERIMENTS WITHOUT RISK TO THE REST OF THE COUNTRY."  NEW
STATE ICE CO. V. LIEBMANN, 285 U.S. 262, 311.  LONG BEFORE THE FEDERAL
GOVERNMENT COULD BE STIRRED TO REGULATE UTILITIES, COURAGEOUS STATES
TOOK THE INITIATIVE AND ALMOST THE WHOLE BODY OF UTILITY PRACTICE HAS
RESULTED FROM THEIR EXPERIENCES. 

WE MUST NOT FORGET THAT REGULATORY MEASURES ARE TEMPORARY EXPEDIENTS,
NOT ETERNAL VERITIES - IF INDEED THEY ARE VERITIES AT ALL.  CERTAINLY
ONE OF THE MATTERS ON WHICH THE STATES MIGHT WELL BE INDULGED - THE
RIGHT TO AN OPINION OF THEIR OWN - IS AS TO THE ACCOUNTING METHODS OF A
UTILITY WHOSE WHOLE PROPERTY AND BUSINESS BEING ACCOUNTED FOR IS WITHIN
THE STATE.  OUT OF THEIR DIVERSITY OF PRACTICE AND EXPERIENCE EMERGE
PRAGMATIC TESTS.  WHAT THE FEDERAL POWER COMMISSION SEEKS TO REQUIRE OF
THIS OHIO GAS COMPANY, FOR EXAMPLE, IS TO REVERT BY ACCOUNTING METHODS
TO EMPHASIS ON ORIGINAL COST, A BASIS WHICH WILLIAM JENNINGS BRYAN FOR
AN EARLIER GENERATION OF PROGRESSIVES ELOQUENTLY URGED THIS COURT TO
REJECT IN THE FIELD OF RAILROAD RATE-MAKING.  SMYTH V. AMES, 169 U.S.
466.  SEE MR. BRYAN'S ARGUMENT, P. 489.  THAT IS A BASIS OF WHICH, LAST
MONTH, WE SAID IN ANOTHER CONNECTION, "ORIGINAL COST IS WELL TERMED THE
'FALSE STANDARD OF THE PAST' WHERE, AS HERE, PRESENT MARKET VALUE IN NO
WAY REFLECTS THAT COST."  UNITED STATES V. TORONTO NAVIGATION CO., 338
U.S. 396, 403.  IT MUST BE REMEMBERED THAT CLOSER THAN ANY FEDERAL
AGENCY TO THOSE THEY REGULATE AND TO THEIR CUSTOMERS ARE THE STATE
AUTHORITIES, WHOSE MECHANISMS ARE LESS CUMBERSOME AND WHOSE PRINCIPLES
CAN MUCH MORE QUICKLY BE ADJUSTED TO THE CHANGING TIMES. 

WE SHOULD NOT UTILIZE THE CENTRALIZING POWERS OF THE FEDERAL
JUDICIARY TO DESTROY DIVERSITIES BETWEEN STATES WHICH CONGRESS HAS BEEN
SCRUPULOUS TO PROTECT.  IF NOW AND THEN SOME STATE DOES NOT REGULATE
ITS UTILITIES ACCORDING TO THE FEDERAL STANDARD, IT MAY BE A SMALL
PRICE TO PAY FOR PRESERVING THE STATE INITIATIVE WHICH GAVE US
UTILITIES REGULATION FAR IN ADVANCE OF FEDERAL INITIATIVE. 

I THINK THAT OBSERVANCE OF GOOD FAITH WITH THE STATES REQUIRES THAT
WE INTERPRET THIS ACT AS IT WAS REPRESENTED AT THE TIME THEY URGED ITS
ENACTMENT, AS ITS TERMS READ, AND AS WE HAVE, UNTIL TODAY, DECLARED IT,
VIZ. TO SUPPLEMENT BUT NOT TO SUPPLANT STATE REGULATION.  WHAT AMOUNTS
TO AN ENTRAPMENT OF THE STATE AGENCIES THAT SUPPORTED THIS ACT UNDER
THE REPRESENTATION THAT IT WOULD NOT DEPRIVE THEM OF POWERS BUT WOULD
ONLY MAKE THEIR POWERS EFFECTIVE WILL PROBABLY NOT MAKE IT EASIER TO
GET NEEDED REGULATORY LEGISLATION IN THE FUTURE. 

FN1  IN THE EAST OHIO TAX CASE THE REDUCTION OF PRESSURE AND
EXPANSION OF VOLUME OF THE GAS AT THE POINT OF ENTRANCE INTO LOCAL
SUPPLY MAINS WAS COMPARED TO THE BREAKING OF AN ORIGINAL PACKAGE AFTER
SHIPMENT IN INTERSTATE COMMERCE, SO THAT ITS CONTENTS COULD BE TREATED,
PREPARED FOR SALE AND SOLD AT RETAIL. 

FN2  THE QUESTION BEFORE THE COURT CONCERNED THE POWER OF THE STATE
OF MISSISSIPPI TO TAX WHOLESALE OPERATIONS OF AN INTERSTATE PIPE-LINE
COMPANY.  CURTLY DISMISSING THE STATE'S ARGUMENTS RESTING ON THE FACT
THAT THE GAS PRESSURE HAD BEEN REDUCED BEFORE THE SALE FOR RESALE, THE
COURT HELD, AS SUCCINCTLY STATED IN THE HEADNOTE:  "THE SELLING OF GAS
WHOLESALE TO LOCAL, INDEPENDENT DISTRIBUTORS FROM A SUPPLY PASSING INTO
AND THROUGH THE STATE IN INTERSTATE COMMERCE, DOES NOT BECOME A LOCAL
AFFAIR AND SUBJECT TO A LOCAL PRIVILEGE TAX MERELY BECAUSE THE VENDOR,
TO DELIVER THE QUANTITIES SOLD, USES A THERMOMETER AND A METER AND
REDUCES THE PRESSURE."  IN ITS ARGUMENT TO THE COURT, 284 U.S. AT P.
42, THE STATE HAD PRESENTED THE ANALOGY OF PRESSURE REDUCTION TO THE
BREAKING OF AN ORIGINAL PACKAGE SHIPPED IN INTERSTATE COMMERCE, CF.
NOTE 1, SUPRA.  STATE TAX COMM'N V. INTERSTATE NATURAL GAS CO., 284
U.S. 41. 

FN3  IN THE LONE STAR CASE THIS COURT EXAMINED THE VALIDITY OF AN
ORDER OF A TEXAS COMMISSION FIXING THE RATE TO BE CHARGED BY THE LONE
STAR COMPANY FOR GAS SOLD TO LOCAL DISTRIBUTING COMPANIES AT THE GATES
OF NUMEROUS TEXAS COMMUNITIES.  MOST OF THE LONE STAR GAS WAS PIPED
FROM FIELDS IN THE TEXAS PANHANDLE, BUT ACROSS A SEGMENT OF OKLAHOMA. 
A SMALL AMOUNT WAS PRODUCED OR PURCHASED IN OKLAHOMA, PIPED INTO TEXAS,
TREATED, AND ADDED TO THE LOCAL SUPPLY.  THUS COMMINGLED BEYOND
SEPARATE RECOGNITION, BOTH TYPES OF GAS WERE CONDUCTED THROUGH HIGH
PRESSURE LINES AND SOLD TO THE VARIOUS RETAIL DISTRIBUTING COMPANIES. 
BECAUSE OF THE INTERRELATED CORPORATE STRUCTURE OF LONE STAR AND THESE
DISTRIBUTING COMPANIES, THE COURT TREATED THEM AS ONE OPERATING UNIT,
AND APPROVED THE STATE'S EXERCISE OF ITS RATE-MAKING POWER BASED UPON
VALUATION OF THE ENTIRE INTEGRATED SYSTEM. 

FN4  H.R. REP. NO. 709, 75TH CONG., 1ST SESS. 1-2, ADOPTED WITHOUT
CHANGE IN S. REP. NO. 1162, 75TH CONG., 1ST SESS. 1-2, SAID OF THE
PROPOSED BILL WHICH BECAME THE NATURAL GAS ACT:  "  ... THE STATES
HAVE, OF COURSE, FOR MANY YEARS REGULATED SALES OF NATURAL GAS TO
CONSUMERS IN INTRASTATE TRANSACTIONS.  THE STATES HAVE ALSO BEEN ABLE
TO REGULATE SALES TO CONSUMERS EVEN THOUGH SUCH SALES ARE IN INTERSTATE
COMMERCE, SUCH SALES BEING CONSIDERED LOCAL IN CHARACTER AND IN THE
ABSENCE OF CONGRESSIONAL PROHIBITION SUBJECT TO STATE REGULATION.  (SEE
PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMMISSION (1920), 252 U.S.
23.)  THERE IS NO INTENTION IN ENACTING THE PRESENT LEGISLATION TO
DISTURB THE STATES IN THEIR EXERCISE OF SUCH JURISDICTION.  HOWEVER, IN
THE CASE OF SALES FOR RESALE, OR SO-CALLED WHOLESALE SALES, IN
INTERSTATE COMMERCE (FOR EXAMPLE, SALES BY PRODUCING COMPANIES TO
DISTRIBUTING COMPANIES) THE LEGAL SITUATION IS DIFFERENT.  SUCH
TRANSACTIONS HAVE BEEN CONSIDERED TO BE NOT LOCAL IN CHARACTER AND,
EVEN IN THE ABSENCE OF CONGRESSIONAL ACTION, NOT SUBJECT TO STATE
REGULATION.  (SEE MISSOURI V. KANSAS GAS CO. (1924), 265 U.S. 298, AND
PUBLIC SERVICE COMMISSION V. ATTLEBORO STEAM & ELECTRIC CO. (1927) 273
U.S. 83.)  THE BASIC PURPOSE OF THE PRESENT LEGISLATION IS TO OCCUPY
THIS FIELD IN WHICH THE SUPREME COURT HAS HELD THAT THE STATES MAY NOT
ACT." 

CONGRESSIONAL DEBATES ON THE BILL WERE SIMILARLY CONCERNED WITH THOSE
ASPECTS OF THE NATURAL GAS INDUSTRY OVER WHICH NO STATE REGULATORY
CONTROL EXISTED.  THESE DEBATES WERE LED, IN THE HOUSE, BY CHAIRMAN LEA
OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, AND, IN THE
SENATE, BY CHAIRMAN WHEELER OF THE COMMITTEE ON INTERSTATE COMMERCE. 
IN HIS EXPLANATORY STATEMENT THE FORMER DECLARED, "THE PRIMARY PURPOSE
OF THE PENDING BILL IS TO PROVIDE FEDERAL REGULATION, IN THOSE CASES
WHERE THE STATE COMMISSIONS LACK AUTHORITY, UNDER THE INTERSTATE
COMMERCE LAW.  THIS BILL TAKES NOTHING FROM THE STATE COMMISSIONS; THEY
RETAIN ALL THE STATE POWER THEY HAVE AT THE PRESENT TIME."  81 CONG.
REC. 6721.  AND HE ADDED LATER, "THE OBJECT OF THIS BILL IS TO SUPPLY
REGULATION IN THOSE CASES WHERE THE STATE COMMISSION HAS NO POWER TO
REGULATE."  IBID.  COMMITTEE MEMBER HALLECK ASSURED THE HOUSE THAT
"THIS BILL SEEKS ONLY TO REACH THOSE SALES WHERE THE SALE IS FOR RESALE
TO THE ULTIMATE CONSUMER."  ID., 6723.  AND IN THE SENATE, CHAIRMAN
WHEELER DECLARED: "THERE IS NO ATTEMPT AND CAN BE NO ATTEMPT UNDER THE
PROVISIONS OF THE BILL TO REGULATE ANYTHING IN THE FIELD EXCEPT WHERE
IT IS NOT REGULATED AT THE PRESENT TIME.  IT APPLIES ONLY AS TO
INTERSTATE COMMERCE AND ONLY TO THE WHOLESALE PRICE OF GAS."  81 CONG.
REC. 9313. 

NEITHER THE EAST OHIO CASE NOR ITS MECHANISTIC FORMULA WAS EMPHASIZED
OR EVEN ADVERTED TO IN THE COMMITTEE REPORTS OR IN THE CONGRESSIONAL
DEBATES. 

FN5  THE SUGGESTED CONSTRUCTION ALSO COMPORTS WITH THE CONCLUSIONS OF
THE HOUSE AND SENATE COMMITTEE REPORTS, H.R. REP. NO. 709, 75TH CONG.,
1ST SESS. 3, AND S. REP. NO. 1162, 75TH CONG., 1ST SESS. 3: 

"THAT PART OF THE NEGATIVE DECLARATION STATING THAT THE ACT SHALL NOT
APPLY TO 'THE LOCAL DISTRIBUTION OF NATURAL GAS' IS SURPLUSAGE BY
REASON OF THE FACT THAT DISTRIBUTION IS MADE ONLY TO CONSUMERS IN
CONNECTION WITH SALES, AND SINCE NO JURISDICTION IS GIVEN TO THE
COMMISSION TO REGULATE SALES TO CONSUMERS THE COMMISSION WOULD HAVE NO
AUTHORITY OVER DISTRIBUTION, WHETHER OR NOT LOCAL IN CHARACTER." 
..END :



SAVORGNAN V. UNITED STATES, 338 U.S. 491 


NO. 48.  ARGUED NOVEMBER 7-8, 1949.  - DECIDED JANUARY 9, 1950.  - 171
F.2D 155, AFFIRMED. 


IN 1940, PETITIONER, A NATIVE-BORN AMERICAN CITIZEN WHO WAS A
COMPETENT ADULT WOMAN, VOLUNTARILY AND KNOWINGLY APPLIED FOR AND
OBTAINED ITALIAN CITIZENSHIP WHILE IN THE UNITED STATES THROUGH
NATURALIZATION IN ACCORDANCE WITH ITALIAN LAW.  SHE WENT TO ITALY IN
1941 AND LIVED THERE WITH HER ITALIAN HUSBAND UNTIL 1945, WHEN SHE
RETURNED TO THE UNITED STATES.  HELD:  SHE EXPATRIATED HERSELF UNDER
THE LAWS OF THE UNITED STATES BY HER NATURALIZATION AS AN ITALIAN
CITIZEN FOLLOWED BY HER RESIDENCE ABROAD.  PP. 492-506. 

(A)  WITHIN THE MEANING OF SEC. 2 OF THE CITIZENSHIP ACT OF 1907, THE
TERM "NATURALIZATION IN ANY FOREIGN STATE" INCLUDES NATURALIZATION
PROCEEDINGS WHICH LEAD TO CITIZENSHIP IN A FOREIGN STATE, EVEN THOUGH
SUCH PROCEEDINGS TAKE PLACE IN THE UNITED STATES.  P. 499. 

(B)  AFTER A COMPETENT ADULT AMERICAN CITIZEN HAS VOLUNTARILY AND
KNOWINGLY PERFORMED AN OVERT ACT WHICH SPELLS EXPATRIATION UNDER THE
WORDING OF THE CITIZENSHIP ACT OF 1907, HE CANNOT PRESERVE OR REGAIN
HIS AMERICAN CITIZENSHIP BY SHOWING HIS INTENT OR UNDERSTANDING TO HAVE
BEEN CONTRARY TO THE USUAL LEGAL CONSEQUENCES OF SUCH AN ACT, SINCE
THOSE LEGAL CONSEQUENCES ARE NOT DEPENDENT UPON THE INTENTION OF THE
CITIZEN.  PP. 499-502. 

(C)  WHETHER THIS CASE BE GOVERNED AS TO FOREIGN RESIDENCE BY THE
NATIONALITY ACT OF 1940 OR THE CITIZENSHIP ACT OF 1907, THE FACT THAT,
FOLLOWING HER NATURALIZATION AS AN ITALIAN CITIZEN, PETITIONER ACTUALLY
RESIDED ABROAD (I.E., HAD A "PLACE OF GENERAL ABODE" THERE) FROM 1941
TO 1945 DEPRIVED HER OF HER AMERICAN CITIZENSHIP, REGARDLESS OF WHETHER
SHE INTENDED TO ABANDON HER RESIDENCE IN THE UNITED STATES OR TO OBTAIN
A PERMANENT RESIDENCE ABROAD.  PP. 503-506. 

(D)  NO DECISION IS MADE ON THE QUESTION WHETHER PETITIONER'S ITALIAN
NATURALIZATION IN 1940 WOULD HAVE DEPRIVED HER OF AMERICAN CITIZENSHIP
HAD SHE NOT TAKEN UP HER RESIDENCE ABROAD.  PP. 502-503. 

(E)  PETITIONER'S SIGNING OF THE INSTRUMENT CONTAINING HER OATH OF
ALLEGIANCE TO THE KING OF ITALY WAS AN OATH OF ALLEGIANCE TO A FOREIGN
STATE WITHIN THE MEANINGS OF SEC. 2 OF THE CITIZENSHIP ACT OF 1907 AND
SEC. 401(B) OF THE NATIONALITY ACT OF 1940, EVEN THOUGH NO CEREMONY OR
FORMAL ADMINISTRATION OF THE OATH ACCOMPANIED HER SIGNATURE.  P. 496,
N. 5. 

SAVORGNAN V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN A SUIT UNDER SEC. 503 OF THE NATIONALITY ACT OF 1940, 54 STAT.
1171, 8 U.S.C. SEC. 903, THE DISTRICT COURT GRANTED RESPONDENT A
JUDGMENT DECLARING HER TO BE AN AMERICAN CITIZEN.  73 F.SUPP.  109. 
THE COURT OF APPEALS REVERSED.  171 F.2D 155.  THIS COURT GRANTED
CERTIORARI.  337 U.S. 914.  AFFIRMED, P. 506. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER, UNDER THE SPECIAL CIRCUMSTANCES OF THIS
CASE, A NATIVE-BORN AMERICAN CITIZEN WHO BECAME AN ITALIAN CITIZEN IN
1940, AND LIVED IN ITALY WITH HER ITALIAN HUSBAND FROM 1941 TO 1945,
NEVERTHELESS RETAINED HER AMERICAN CITIZENSHIP.  FOR THE REASONS
HEREINAFTER STATED, WE HOLD THAT SHE DID NOT.  THE CONTROLLING STATUTES
ARE SEC. 2 OF THE CITIZENSHIP ACT OF 1907, FN1 AND SECS. 401, 403 AND
104 OF ITS SUCCESSOR, THE NATIONALITY ACT OF 1940.  FN2 

THE PETITIONER, ROSETTE SORGE SAVORGNAN, BROUGHT THIS ACTION IN THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN,
UNDER SEC. 503 OF THE NATIONALITY ACT OF 1940, 54 STAT. 1171, 8 U.S.C.
SEC. 903, FOR A JUDGMENT DECLARING HER TO BE AN AMERICAN CITIZEN.  THAT
COURT DECIDED IN HER FAVOR.  73 F.SUPP.  109.  THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED THE JUDGMENT AND REMANDED
THE CASE WITH DIRECTIONS TO DISMISS THE PETITION AGAINST THE UNITED
STATES BECAUSE IT HAD NOT CONSENTED TO BE SUED, AND TO ENTER JUDGMENT
IN FAVOR OF THE OTHER DEFENDANTS IN CONFORMITY WITH ITS OPINION.  171
F.2D 155.  BECAUSE OF THE IMPORTANCE OF THIS DECISION IN DETERMINING
AMERICAN CITIZENSHIP, WE GRANTED CERTIORARI.  337 U.S. 914. 

INSOFAR AS MATERIAL, THE UNDISPUTED FACTS AND THOSE FOUND BY THE
DISTRICT COURT ARE AS FOLLOWS: 

THE PETITIONER WAS BORN IN WISCONSIN IN 1915 OF NATIVEBORN PARENTS
AND RESIDED IN THE UNITED STATES UNTIL JULY, 1941.  IN MARCH, 1940, HER
INTENDED HUSBAND, ALESSANDRO SAVORGNAN, WAS AN ITALIAN CITIZEN, SERVING
AS ITALIAN VICE CONSUL AT ST. LOUIS, MISSOURI.  HE INFORMED HER THAT,
UNDER ITALIAN LAW, SHE WOULD HAVE TO BECOME AN ITALIAN CITIZEN BEFORE
HE COULD OBTAIN THE NECESSARY ROYAL CONSENT TO THEIR MARRIAGE.  SHE
APPLIED FOR ITALIAN CITIZENSHIP.  HE PREPARED HER APPLICATION.  IT WAS
IN ITALIAN WHICH HE UNDERSTOOD, BUT WHICH SHE DID NOT UNDERSTAND.  IN
AUGUST, THE PETITIONER WAS GRANTED ITALIAN CITIZENSHIP.  IN NOVEMBER,
SHE APPEARED WITH SAVORGNAN AT THE ITALIAN CONSULATE IN CHICAGO,
ILLINOIS, AND, IN HIS PRESENCE, SIGNED AN INSTRUMENT WHICH CONTAINED AN
OATH, IN ITALIAN, EXPRESSLY RENOUNCING HER AMERICAN CITIZENSHIP AND
SWEARING HER ALLEGIANCE TO THE KING OF ITALY.  FN3  NO CEREMONY OR
FORMAL ADMINISTRATION OF THE OATH ACCOMPANIED HER SIGNATURE AND
APPARENTLY NONE WAS REQUIRED.  SHE AND SAVORGNAN UNDERSTOOD THAT HER
SIGNING OF THIS INSTRUMENT HAD TO DO WITH HER CITIZENSHIP AND WITH
SECURING THE REQUIRED ROYAL CONSENT FOR SAVORGNAN TO MARRY HER, BUT HE
DID NOT TRANSLATE THE INSTRUMENT OR EXPLAIN ITS CONTENTS TO HER.  THE
DISTRICT COURT FOUND AS A FACT THAT, AT THE TIME OF SIGNING EACH OF THE
DOCUMENTS MENTIONED, THE PETITIONER, ALTHOUGH INTENDING TO OBTAIN
ITALIAN CITIZENSHIP, HAD NO INTENTION OF ENDANGERING HER AMERICAN
CITIZENSHIP OR OF RENOUNCING HER ALLEGIANCE TO THE UNITED STATES. 

DECEMBER 26, 1940, THE PETITIONER AND SAVORGNAN WERE MARRIED.  IN
JULY, 1941, WHEN ITALIAN DIPLOMATIC OFFICIALS WERE REQUIRED TO LEAVE
THE UNITED STATES, AN ITALIAN DIPLOMATIC PASSPORT WAS ISSUED TO THE
PETITIONER, AND SHE EMBARKED FOR ITALY WITH HER HUSBAND.  SHE REMAINED
IN ITALY UNTIL NOVEMBER, 1945, EXCEPT FOR SIX MONTHS SPENT IN GERMANY. 
WHILE IN ITALY SHE LIVED WITH HER HUSBAND AND HIS FAMILY IN ROME, WHERE
HE WORKED IN THE ITALIAN FOREIGN MINISTRY.  IN NOVEMBER, 1945, SHE
RETURNED TO AMERICA ON AN ITALIAN DIPLOMATIC PASSPORT AND LATER
REQUESTED THE COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION
SERVICE TO CORRECT THE RECORDS OF HIS OFFICE TO SHOW THAT SHE WAS AN
AMERICAN CITIZEN AT THE TIME OF HER RETURN TO AMERICA.  THE REQUEST WAS
DENIED AND SHE INSTITUTED THE PRESENT PROCEEDING. 

THERE IS NO EVIDENCE OF HER MAINTAINING, AT ANY TIME AFTER HER
MARRIAGE, A RESIDENCE, DWELLING PLACE OR PLACE OF GENERAL ABODE APART
FROM HER HUSBAND.  THE DISTRICT COURT, HOWEVER, FOUND THAT, AT THE
TIMES OF SIGNING HER APPLICATION FOR ITALIAN CITIZENSHIP AND THE
INSTRUMENT CONTAINING HER OATH OF ALLEGIANCE TO THE KING OF ITALY, SHE
DID NOT INTEND TO ESTABLISH A "PERMANENT RESIDENCE" IN ANY COUNTRY
OTHER THAN THE UNITED STATES.  IT FOUND ALSO THAT WHEN SHE LEFT AMERICA
FOR ITALY, "SHE DID SO WITHOUT ANY INTENTION OF ESTABLISHING A
PERMANENT RESIDENCE ABROAD OR ABANDONING HER RESIDENCE IN THE UNITED
STATES, OR OF DIVESTING HERSELF OF HER AMERICAN CITIZENSHIP."  SEE 73
F.SUPP.  AT 110. 

WE THUS FACE TWO PRINCIPAL QUESTIONS: 

I. WHAT WAS THE EFFECT UPON THE PETITIONER'S AMERICAN CITIZENSHIP OF
HER APPLYING FOR AND OBTAINING ITALIAN CITIZENSHIP?  THE GOVERNMENT
CONTENDS THAT SHE THEREBY WAS NATURALIZED IN A FOREIGN STATE IN
CONFORMITY WITH ITS LAWS WITHIN THE MEANING OF EITHER SEC. 2 OF THE ACT
OF 1907 OR SEC. 401(A) OF THE ACT OF 1940.  FN4  IT CONTENDS FURTHER
THAT SEC. 2 OF THE ACT OF 1907 DID NOT REQUIRE RESIDENCE ABROAD AS A
CONDITION OF EXPATRIATION, AND THAT SHE, THEREFORE, WAS, THEN AND
THERE, EFFECTIVELY EXPATRIATED UNDER THAT ACT, MERELY UPON BECOMING
NATURALIZED AS AN ITALIAN CITIZEN WHILE STILL REMAINING IN THE UNITED
STATES.  WE AGREE THAT SHE WAS THUS NATURALIZED, BUT WE DO NOT FIND IT
NECESSARY TO PASS UPON THE FURTHER CONTENTION THAT, BY OBTAINING SUCH
NATURALIZATION IN 1940, SHE THEN AND THERE EXPATRIATED HERSELF, AND
LOST HER AMERICAN CITIZENSHIP WITHOUT TAKING UP RESIDENCE ABROAD.  FN5 

II. WHAT WAS THE EFFECT UPON THE PETITIONER'S AMERICAN CITIZENSHIP OF
HER RESIDENCE IN ITALY FROM 1941 TO 1945?  THE GOVERNMENT CONTENDS
THAT, EVEN IF THE PETITIONER DID NOT LOSE HER AMERICAN CITIZENSHIP, IN
1940, WHEN SHE BECAME A NATURALIZED ITALIAN CITIZEN, SHE LOST IT WHEN
SHE TOOK UP HER RESIDENCE IN ITALY.  WE AGREE.  THE GOVERNMENT CONTENDS
THAT THIS EXPATRIATION WAS EFFECTED EITHER UNDER THE ACT OF 1940  FN6
OR UNDER THE ACT OF 1907 AS CONTINUED IN EFFECT BY A SAVING CLAUSE IN
THE ACT OF 1940.  FN7  WE FIND IT UNNECESSARY TO CHOOSE BETWEEN THESE
CONTENTIONS BECAUSE EACH LEADS TO THE SAME CONCLUSION IN THIS CASE. 

                                I.

          WHAT WAS THE EFFECT UPON THE PETITIONER'S AMERICAN

           CITIZENSHIP OF HER APPLYING FOR AND OBTAINING

      ITALIAN CITIZENSHIP? 

THE REQUIREMENTS FOR EXPATRIATION UNDER SEC. 2 OF THE CITIZENSHIP ACT
OF 1907 ARE OBJECTIVE.  FN8  THAT SECTION PROVIDES THAT "ANY AMERICAN
CITIZEN SHALL BE DEEMED TO HAVE EXPATRIATED HIMSELF WHEN HE HAS BEEN
NATURALIZED IN ANY FOREIGN STATE IN CONFORMITY WITH ITS LAWS, OR WHEN
HE HAS TAKEN AN OATH OF ALLEGIANCE TO ANY FOREIGN STATE."  FN9 

TRADITIONALLY THE UNITED STATES HAS SUPPORTED THE RIGHT OF
EXPATRIATION AS A NATURAL AND INHERENT RIGHT OF ALL PEOPLE.  FN10
DENIAL, RESTRICTION, IMPAIRMENT OR QUESTIONING OF THAT RIGHT WAS
DECLARED BY CONGRESS, IN 1868, TO BE INCONSISTENT WITH THE FUNDAMENTAL
PRINCIPLES OF THIS GOVERNMENT.  FN11  FROM THE BEGINNING, ONE OF THE
MOST OBVIOUS AND EFFECTIVE FORMS OF EXPATRIATION HAS BEEN THAT OF
NATURALIZATION UNDER THE LAWS OF ANOTHER NATION.  HOWEVER, DUE TO THE
COMMON-LAW PROHIBITION OF EXPATRIATION WITHOUT THE CONSENT OF THE
SOVEREIGN, OUR COURTS HESITATED TO RECOGNIZE EXPATRIATION OF OUR
CITIZENS, EVEN BY FOREIGN NATURALIZATION, WITHOUT THE EXPRESS CONSENT
OF OUR GOVERNMENT.  FN12  CONGRESS FINALLY GAVE ITS CONSENT UPON THE
SPECIFIC TERMS STATED IN THE CITIZENSHIP ACT OF 1907 AND IN ITS
SUCCESSOR, THE NATIONALITY ACT OF 1940.  THOSE ACTS ARE TO BE READ IN
THE LIGHT OF THE DECLARATION OF POLICY FAVORING FREEDOM OF EXPATRIATION
WHICH STANDS UNREPEALED.  3 HACKWORTH, DIGEST OF INTERNATIONAL LAW
SECS. 242-250(1942). 

A. ONE CONTENTION OF THE PETITIONER IS THE NOVEL ONE THAT HER
NATURALIZATION DID NOT MEET THE REQUIREMENTS OF SEC. 2 OF THE ACT OF
1907,  FN13  BECAUSE IT DID NOT TAKE PLACE WITHIN THE BOUNDARIES OF A
FOREIGN STATE.  THE ANSWER IS THAT THE PHRASE IN SEC. 2 WHICH STATES
THAT "ANY AMERICAN CITIZEN SHALL BE DEEMED TO HAVE EXPATRIATED HIMSELF
WHEN HE HAS BEEN NATURALIZED IN ANY FOREIGN STATE IN CONFORMITY WITH
ITS LAWS,  ..."  REFERS MERELY TO NATURALIZATION INTO THE CITIZENSHIP
OF ANY FOREIGN STATE.  IT DOES NOT REFER TO THE PLACE WHERE THE
NATURALIZATION PROCEEDING OCCURS.  THE MATTER IS EVEN MORE CLEARLY
DEALT WITH IN THE ACT OF 1940.  FN14  SECTION 401(A) THERE LISTS
"OBTAINING NATURALIZATION IN A FOREIGN STATE,  ...  " AS A MEANS OF
LOSING NATIONALITY.  SECTION 403(A) THEN STATES THAT EXPATRIATION SHALL
RESULT FROM THE PERFORMANCE OF THE ACTS LISTED IN SEC. 401 "WITHIN THE
UNITED STATES  ...  " IF AND WHEN THE NATIONAL PERFORMING THEM
"THEREAFTER TAKES UP A RESIDENCE ABROAD."  THUS CONGRESS EXPRESSLY
RECOGNIZED THAT "NATURALIZATION IN A FOREIGN STATE" INCLUDED
NATURALIZATION PROCEEDINGS WHICH LED TO CITIZENSHIP IN A FOREIGN STATE,
BUT TOOK PLACE WITHIN THE UNITED STATES. 

B. THE PETITIONER'S PRINCIPAL CONTENTION IS THAT SHE DID NOT INTEND
TO GIVE UP HER AMERICAN CITIZENSHIP, ALTHOUGH SHE APPLIED FOR AND
ACCEPTED ITALIAN CITIZENSHIP, AND THAT HER INTENT SHOULD PREVAIL. 
HOWEVER, THE ACTS UPON WHICH THE STATUTES EXPRESSLY CONDITION THE
CONSENT OF OUR GOVERNMENT TO THE EXPATRIATION OF ITS CITIZENS ARE
STATED OBJECTIVELY.  FN15  THERE IS NO SUGGESTION IN THE STATUTORY
LANGUAGE THAT THE EFFECT OF THE SPECIFIED OVERT ACTS, WHEN VOLUNTARILY
DONE, IS CONDITIONED UPON THE UNDISCLOSED INTENT OF THE PERSON DOING
THEM. 

THE UNITED STATES HAS LONG RECOGNIZED THE GENERAL UNDESIRABILITY OF
DUAL ALLEGIANCES.  SINCE 1795, CONGRESS HAS REQUIRED ANY ALIEN SEEKING
AMERICAN CITIZENSHIP TO DECLARE "THAT HE DOTH ABSOLUTELY AND ENTIRELY
RENOUNCE AND ABJURE ALL ALLEGIANCE AND FIDELITY TO EVERY FOREIGN
PRINCE, POTENTATE, STATE OR SOVEREIGNTY WHATEVER, AND PARTICULARLY BY
NAME, THE PRINCE, POTENTATE, STATE OR SOVEREIGNTY, WHEREOF HE WAS
BEFORE A CITIZEN OR SUBJECT; ...  "  1 STAT. 414, SEE 8 U.S.C. SEC.
735(A).  FN16  TEMPORARY OR LIMITED DUALITY OF CITIZENSHIP HAS ARISEN
INEVITABLY FROM DIFFERENCES IN THE LAWS OF THE RESPECTIVE NATIONS AS TO
WHEN NATURALIZATION AND EXPATRIATION SHALL BECOME EFFECTIVE.  THERE IS
NOTHING, HOWEVER, IN THE ACT OF 1907 THAT IMPLIES A CONGRESSIONAL
INTENT THAT, AFTER AN AMERICAN CITIZEN HAS PERFORMED AN OVERT ACT WHICH
SPELLS EXPATRIATION UNDER THE WORDING OF THE STATUTE, HE, NEVERTHELESS,
CAN PRESERVE FOR HIMSELF A DUALITY OF CITIZENSHIP BY SHOWING HIS INTENT
OR UNDERSTANDING TO HAVE BEEN CONTRARY TO THE USUAL LEGAL CONSEQUENCES
OF SUCH AN ACT.  FN17 

THIS COURT, IN INTERPRETING SEC. 3 OF THE ACT OF 1907 AS IT EXISTED
FROM 1907 TO 1922, HAS PASSED UPON SUBSTANTIALLY THIS QUESTION. 
FOREIGNER SHALL TAKE THE NATIONALITY OF HER HUSBAND."  34 STAT. 1228,
REPEALED IN 42 STAT. 1022.  WHILE THAT PROVISION WAS IN EFFECT, A WOMAN
WHO WAS A NATIVE-BORN CITIZEN OF THE UNITED STATES MARRIED A SUBJECT OF
GREAT BRITAIN RESIDING IN CALIFORNIA.  THE WOMAN HAD NOT INTENDED TO
GIVE UP HER AMERICAN CITIZENSHIP.  ON BEING ADVISED THAT SHE HAD DONE
SO, SHE SOUGHT A WRIT OF MANDAMUS TO COMPEL THE LOCAL BOARD OF
ELECTIONS TO REGISTER HER AS A VOTER AND SHE SHOWED THAT SHE HAD THE
NECESSARY QUALIFICATIONS FOR REGISTRATION, PROVIDED SHE ESTABLISHED HER
AMERICAN CITIZENSHIP.  THE COURT HELD THAT, DURING HER COVERTURE, HER
EXPATRIATION WAS BINDING UPON HER AS THE STATUTORY CONSEQUENCE OF HER
MARRIAGE TO A FOREIGNER IN SPITE OF HER CONTRARY INTENT AND
UNDERSTANDING AS TO HER AMERICAN CITIZENSHIP.  SHE ACCORDINGLY WAS
DENIED RELIEF.  MACKENZIE V. HARE, 239 U.S. 299.  SEE ALSO, EX PARTE
GRIFFIN, 237 F. 445(N.D.N.Y.).  CF. PERKINS V. ELG, 307 U.S. 325. 

THE PETITIONER, IN THE INSTANT CASE, WAS A COMPETENT ADULT.  SHE
VOLUNTARILY AND KNOWINGLY SOUGHT AND OBTAINED ITALIAN CITIZENSHIP. 
FN18  HER APPLICATION FOR NATURALIZATION AND HER OATH OF ALLEGIANCE
WERE IN ITALIAN, WHICH SHE DID NOT UNDERSTAND, BUT SAVORGNAN DID
UNDERSTAND ITALIAN, AND HE WAS WITH HER AND ABLE TO TRANSLATE AND
EXPLAIN THEM TO HER WHEN SHE SIGNED THEM.  SHE KNEW THAT THE
INSTRUMENTS RELATED TO HER CITIZENSHIP AND THAT HER SIGNATURE OF THEM
WAS AN IMPORTANT CONDITION UPON WHICH HER MARRIAGE DEPENDED.  SHE THUS
WAS AS RESPONSIBLE FOR UNDERSTANDING THEM AS IF THEY HAD BEEN IN
ENGLISH.  ON THAT BASIS, SHE WAS MARRIED.  WHATEVER THE LEGAL
CONSEQUENCES OF THOSE ACTS MAY BE, SHE IS BOUND BY THEM. 

C. THE GOVERNMENT CONTENDS VIGOROUSLY THAT THE PETITIONER'S ITALIAN
NATURALIZATION, IN 1940, THEN AND THERE EXPATRIATED HER.  IT CONTENDS
THAT THIS PROVIDES SUFFICIENT BASIS, UNDER THE ACT OF 1907, TO AFFIRM
THE DECISION OF THE COURT OF APPEALS WITHOUT REFERENCE TO THE
PETITIONER'S SUBSEQUENT RESIDENCE ABROAD.  WHILE RECOGNIZING THE FORCE
OF THIS ALTERNATIVE GROUND FOR AFFIRMANCE, WE DO NOT REST OUR DECISION
UPON IT.  IT IS, HOWEVER, ENTITLED TO BE NOTED.  THE GOVERNMENT'S
ARGUMENT IS THAT, WHILE RESIDENCE ABROAD MAY HAVE BEEN REQUIRED BEFORE
THE ACT OF 1907 AND IS NOW EXPRESSLY REQUIRED BY THE ACT OF 1940, IT
WAS NOT REQUIRED UNDER THE ACT OF 1907.  SEE MACKENZIE V. HARE, 239
U.S. 299.  THE GOVERNMENT CONCEDES, HOWEVER, THAT, AT LEAST SINCE 1933,
THE STATE DEPARTMENT HAS CONSIDERED RESIDENCE ABROAD TO BE A NECESSARY
ELEMENT OF EXPATRIATION.  3 HACKWORTH, DIGEST OF INTERNATIONAL LAW
SECS. 242-250(1942).  IN OUR VIEW, THE PETITIONER'S RESIDENCE ABROAD
FROM 1941 TO 1945 MAKES IT UNNECESSARY TO DETERMINE, IN THIS CASE, WHAT
WOULD HAVE BEEN HER STATUS IF SHE HAD NOT TAKEN UP HER RESIDENCE
ABROAD.  WE ACCORDINGLY DO NOT DO SO.
II.         WHAT WAS THE EFFECT UPON THE PETITIONER'S AMERICAN
CITIZENSHIP

 OF HER RESIDENCE IN ITALY FROM 1941 TO 1945? 

A. THE NATIONALITY ACT OF 1940, INCLUDING ITS REPEAL OF SEC. 2 OF THE
CITIZENSHIP ACT OF 1907, TOOK EFFECT JANUARY 13, 1941.  FN19  THE
PETITIONER'S RESIDENCE ABROAD BEGAN AFTER THAT DATE.  IT IS CONTENDED
THAT THE EFFECT OF SUCH RESIDENCE MAY BE DETERMINED EITHER BY THE TERMS
OF THE ACT OF 1940, OR BY THOSE OF THE ACT OF 1907 CONTINUED IN FORCE
BY A SAVING CLAUSE IN THE ACT OF 1940.  FN20  WE FIND, HOWEVER, THAT
THE PETITIONER'S RESIDENCE AND HER NATURALIZATION HAVE THE SAME EFFECT
WHETHER OR NOT RESORT IS HAD TO THE SAVING CLAUSE.  ACCORDINGLY, IT IS
NOT NECESSARY TO DETERMINE HERE WHETHER THE PETITIONER'S RESIDENCE AND
NATURALIZATION ARE TO BE TESTED UNDER THE SAVING CLAUSE OR UNDER THE
REST OF THE ACT OF 1940.  FN21 

B. THE PETITIONER'S RESIDENCE ABROAD MET THE REQUIREMENTS OF THE ACT
OF 1940.  SECTIONS 403(A) AND 104 USED THE TERMS "RESIDENCE" AND "PLACE
OF GENERAL ABODE" WITHOUT MENTION OF THE INTENT OF THE PERSON
CONCERNED.  FN22 THE ACT CLEARED UP THE UNCERTAINTIES WHICH HAD BEEN
LEFT BY EARLY DECISIONS AS TO THE TYPE AND AMOUNT, IF ANY, OF RESIDENCE
ABROAD THAT WAS REQUIRED TO ESTABLISH EXPATRIATION N23.  IN CONTRAST TO
SUCH TERMS AS:  "TEMPORARY RESIDENCE," "DOMICILE," "REMOVAL, WITH HIS
FAMILY AND EFFECTS," "ABSOLUTE REMOVAL" OR "PERMANENT RESIDENCE," THE
NEW ACT USED THE TERM "RESIDENCE" AS PLAINLY AS POSSIBLE TO DENOTE AN
OBJECTIVE FACT.  FN24  TO IDENTIFY THE REQUIRED "PLACE OF RESIDENCE,"
IT REQUIRED ONLY THAT IT BE THE "PLACE OF GENERAL ABODE."  CONFIRMATION
OF THIS INTENDED SIMPLIFICATION APPEARS IN THE REPORT ON REVISION AND
CODIFICATION OF THE NATIONALITY LAWS OF THE UNITED STATES, SUBMITTED BY
THE SECRETARY OF STATE, ATTORNEY GENERAL AND SECRETARY OF LABOR TO
CONGRESS ON THE BILL WHICH BECAME THE NATIONALITY ACT OF 1940: 

"DEFINITIONS OF 'RESIDENCE' FREQUENTLY INCLUDE THE ELEMENT OF INTENT
AS TO THE FUTURE PLACE OF ABODE.  HOWEVER, IN SECTION 104 HEREOF NO
MENTION IS MADE OF INTENT, AND THE ACTUAL 'PLACE OF GENERAL ABODE' IS
THE SOLE TEST FOR DETERMINING RESIDENCE.  THE WORDS 'PLACE OF GENERAL
ABODE,' WHICH ARE TAKEN FROM THE SECOND PARAGRAPH OF SECTION 2 OF THE
CITIZENSHIP ACT OF MARCH 2, 1907(34 STAT. 1228), SEEM TO SPEAK FOR
THEMSELVES.  THEY RELATE TO THE PRINCIPAL DWELLING PLACE OF A PERSON." 
FN25 

THE DISTRICT COURT DID NOT FIND THAT THE PETITIONER FAILED TO TAKE UP
AN ACTUAL RESIDENCE OR PLACE OF GENERAL ABODE ABROAD.  IT FOUND MERELY
THAT IN "JULY 1941 WHEN SHE LEFT THIS COUNTRY FOR ITALY SHE DID SO
WITHOUT ANY INTENTION OF ESTABLISHING A PERMANENT RESIDENCE ABROAD OR
ABANDONING HER RESIDENCE IN THE UNITED STATES,  ...  "  SEE 73 F.SUPP. 
AT 110.  UNDER THE ACT OF 1940, THE ISSUE IS NOT WHAT HER INTENT WAS ON
LEAVING THE UNITED STATES, NOR WHETHER, AT ANY LATER TIME, IT WAS HER
INTENT TO HAVE A PERMANENT RESIDENCE ABROAD OR TO HAVE A RESIDENCE IN
THE UNITED STATES.  THE ISSUE IS ONLY WHETHER SHE DID, AT ANY TIME
BETWEEN JULY, 1941, AND NOVEMBER, 1945, IN FACT "RESIDE" ABROAD.  THE
TEST OF SUCH "RESIDENCE" IS WHETHER, AT ANY TIME DURING THAT PERIOD,
SHE DID, IN FACT, HAVE A "PRINCIPAL DWELLING PLACE" OR "PLACE OF
GENERAL ABODE" ABROAD.  SHE TESTIFIED THAT, FROM 1941 TO 1945, SHE
LIVED WITH HER HUSBAND AND HIS FAMILY IN ROME, EXCEPT FOR SIX MONTHS'
INTERNMENT IN SALZBURG, GERMANY.  WHATEVER MAY HAVE BEEN HER REASONS,
WISHES OR INTENT, HER PRINCIPAL DWELLING PLACE WAS IN FACT WITH HER
HUSBAND IN ROME WHERE HE WAS SERVING IN HIS FOREIGN MINISTRY.  HER
INTENT AS TO HER "DOMICILE" OR AS TO HER "PERMANENT RESIDENCE," AS
DISTINGUISHED FROM HER ACTUAL "RESIDENCE," "PRINCIPAL DWELLING PLACE,"
AND "PLACE OF ABODE," IS NOT MATERIAL.  SHE EXPATRIATED HERSELF UNDER
THE LAWS OF THE UNITED STATES BY HER NATURALIZATION AS AN ITALIAN
CITIZEN FOLLOWED BY HER RESIDENCE ABROAD.  FN26 

THE JUDGMENT OF THE COURT OF APPEALS, ACCORDINGLY, IS AFFIRMED, AND
THE CASE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS
THE PETITION AGAINST THE UNITED STATES AND TO ENTER JUDGMENT IN FAVOR
OF THE OTHER DEFENDANTS IN CONFORMITY WITH THIS OPINION.  AFFIRMED. 

FN1  "SEC.  2.  THAT ANY AMERICAN CITIZEN SHALL BE DEEMED TO HAVE
EXPATRIATED HIMSELF WHEN HE HAS BEEN NATURALIZED IN ANY FOREIGN STATE
IN CONFORMITY WITH ITS LAWS, OR WHEN HE HAS TAKEN AN OATH OF ALLEGIANCE
TO ANY FOREIGN STATE. 

"WHEN ANY NATURALIZED CITIZEN SHALL HAVE RESIDED FOR TWO YEARS IN THE
FOREIGN STATE FROM WHICH HE CAME, OR FOR FIVE YEARS IN ANY OTHER
FOREIGN STATE IT SHALL BE PRESUMED THAT HE HAS CEASED TO BE AN AMERICAN
CITIZEN, AND THE PLACE OF HIS GENERAL ABODE SHALL BE DEEMED HIS PLACE
OF RESIDENCE DURING SAID YEARS:  PROVIDED, HOWEVER, THAT SUCH
PRESUMPTION MAY BE OVERCOME ON THE PRESENTATION OF SATISFACTORY
EVIDENCE TO A DIPLOMATIC OR CONSULAR OFFICER OF THE UNITED STATES,
UNDER SUCH RULES AND REGULATIONS AS THE DEPARTMENT OF STATE MAY
PRESCRIBE:  AND PROVIDED ALSO, THAT NO AMERICAN CITIZEN SHALL BE
ALLOWED TO EXPATRIATE HIMSELF WHEN THIS COUNTRY IS AT WAR."  34 STAT.
1228, 8 U.S.C. (1934 ED.)  SEC.  17. 

FN2  "SEC.  401.  A PERSON WHO IS A NATIONAL OF THE UNITED STATES,
WHETHER BY BIRTH OR NATURALIZATION, SHALL LOSE HIS NATIONALITY BY: 

"(A)  OBTAINING NATURALIZATION IN A FOREIGN STATE, EITHER UPON HIS
OWN APPLICATION OR THROUGH THE NATURALIZATION OF A PARENT HAVING LEGAL
CUSTODY OF SUCH PERSON:  ...  OR 

"(B)  TAKING AN OATH OR MAKING AN AFFIRMATION OR OTHER FORMAL
DECLARATION OF ALLEGIANCE TO A FOREIGN STATE; ...."  54 STAT. 1168
1169, 8 U.S.C. SEC. 801(A) AND (B). 

"SEC. 403.  (A)  EXCEPT AS PROVIDED IN SUBSECTIONS (G), (H), AND (I)
OF SECTION 401, NO NATIONAL CAN EXPATRIATE HIMSELF, OR BE EXPATRIATED,
UNDER THIS SECTION (*) WHILE WITHIN THE UNITED STATES OR ANY OF ITS
OUTLYING POSSESSIONS, BUT EXPATRIATION SHALL RESULT FROM THE
PERFORMANCE WITHIN THE UNITED STATES OR ANY OF ITS OUTLYING POSSESSIONS
OF ANY OF THE ACTS OR THE FULFILLMENT OF ANY OF THE CONDITIONS
SPECIFIED IN THIS SECTION (*) IF AND WHEN THE NATIONAL THEREAFTER TAKES
UP A RESIDENCE ABROAD."  58 STAT. 677, 8 U.S.C. SEC. 803(A). 

*THE WORDS "THIS SECTION" AS USED IN SEC. 403 REFER TO SEC. 401. 
THIS NOT ONLY IS EVIDENT FROM THE CONTEXT BUT A READY EXPLANATION
APPEARS FROM THE FACT THAT THE LANGUAGE OF SEC. 403 ORIGINALLY APPEARED
AS A PROVISO IN SEC. 401(H) OF H.R. 6127, 76TH CONG., 1ST SESS.
(1940).  HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON H.R. 6127, SUPERSEDED BY H.R. 9980, 76TH CONG., 1ST
SESS. 25(1940).  H.R. 9980 BECAME THE NATIONALITY ACT OF 1940. 

"SEC. 104.  FOR THE PURPOSES OF SECTIONS 201, 307(B), 403, 404, 405,
406, AND 407 OF THIS ACT, THE PLACE OF GENERAL ABODE SHALL BE DEEMED
THE PLACE OF RESIDENCE."  54 STAT. 1138, 8 U.S.C. SEC. 504. 

FN3  A TRANSLATION SHOWS THAT THIS INSTRUMENT INCLUDED THE FOLLOWING
STATEMENT: 

"THE PERSON IN QUESTION (ROSETTA ANDRUS SORGE, WHO, AS ROSETTE SORGE
SAVORGNAN, LATER BECAME THE PETITIONER IN THE INSTANT CASE), HAVING
BEEN REQUESTED TO TAKE AN OATH  ...  PRONOUNCED THE FOLLOWING WORDS: 

"'I, ROSETTA ANDRUS SORGE, BORN AN AMERICAN CITIZEN, DECLARE I
RENOUNCE AND IN TRUTH DO RENOUNCE MY AMERICAN CITIZENSHIP, AND SWEAR TO
BE FAITHFUL TO H.M. THE KING OF ITALY AND ALBANIA, EMPEROR OF ETHIOPIA,
TO HIS ROYAL SUCCESSORS, AND TO LOYALLY OBSERVE THE STATUTES AND OTHER
LAWS OF THE KINGDOM OF ITALY.'" 

FN4  SEE NOTES 1 AND 2, SUPRA. 

FN5  THE GOVERNMENT FURTHER CLAIMS THAT THE PETITIONER'S SIGNING OF
THE INSTRUMENT CONTAINING HER OATH OF ALLEGIANCE TO THE KING OF ITALY
WAS AN OATH OF ALLEGIANCE TO A FOREIGN STATE WITHIN THE MEANINGS OF
SEC. 2 OF THE ACT OF 1907, AND OF SEC. 401(B) OF THE ACT OF 1940.  WE
AGREE. 

FN6  SEE NOTE 2, SUPRA. 

FN7  SECTION 347(A) OF THE ACT OF 1940 IS SET OUT IN FULL IN NOTE 20,
INFRA. 

FN8  THE SAME IS TRUE OF THE REQUIREMENTS FOR EXPATRIATION UNDER
SECS. 401(A) AND (B) AND 403(A) OF THE NATIONALITY ACT OF 1940.  SEE
NOTES 1 AND 2, SUPRA.  SEE ALSO, BAUER V. CLARK, 161 F.2D 397 (C.A.7TH
CIR.); REYNOLDS V. HASKINS, 8 F.2D 473(C.A.8TH CIR.); UNITED STATES EX
REL. DE CICCO V. LONGO, 46 F.SUPP.  170(CONN.); UNITED STATES EX REL.
WRONA V. KARNUTH, 14 F.SUPP.  770(W.D. N.Y.). 

FN9  FOR FULL TEXT, SEE NOTE 1, SUPRA. 

FN10  THE SANTISSIMA TRINIDAD, 7 WHEAT.  283; MURRAY V. THE CHARMING
BETSY, 2 CRANCH 64; CASE OF ISAAC WILLIAMS, OPINION OF ELLSWORTH, C.J.,
SEE 2 CRANCH 82-83, N.; TALBOT V. JANSON, 3 DALL.  133; EX PARTE
GRIFFIN, 237 F. 445(N.D.N.Y.); COMITIS V. PARKERSON, 56 F. 556(C.C.E.D.
LA.); 14 OP. ATTY. GEN. 295(1872-1874); 8 OP. ATTY. GEN. 139(1856
1857). 

FN11  "WHEREAS THE RIGHT OF EXPATRIATION IS A NATURAL AND INHERENT
RIGHT OF ALL PEOPLE, INDISPENSABLE TO THE ENJOYMENT OF THE RIGHTS OF
LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS; AND WHEREAS IN THE
RECOGNITION OF THIS PRINCIPLE THIS GOVERNMENT HAS FREELY RECEIVED
EMIGRANTS FROM ALL NATIONS, AND INVESTED THEM WITH THE RIGHTS OF
CITIZENSHIP; AND WHEREAS IT IS CLAIMED THAT SUCH AMERICAN CITIZENS,
WITH THEIR DESCENDENTS, ARE SUBJECTS OF FOREIGN STATES, OWING
ALLEGIANCE TO THE GOVERNMENTS THEREOF; AND WHEREAS IT IS NECESSARY TO
THE MAINTENANCE OF PUBLIC PEACE THAT THIS CLAIM OF FOREIGN ALLEGIANCE
SHOULD BE PROMPTLY AND FINALLY DISAVOWED:  THEREFORE, 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT ANY DECLARATION,
INSTRUCTION, OPINION, ORDER, OR DECISION OF ANY OFFICERS OF THIS
GOVERNMENT WHICH DENIES, RESTRICTS, IMPAIRS, OR QUESTIONS THE RIGHT OF
EXPATRIATION, IS HEREBY DECLARED INCONSISTENT WITH THE FUNDAMENTAL
PRINCIPLES OF THIS GOVERNMENT."  15 STAT. 223-224, R.S. SEC. 1999, 8
U.S.C. SEC. 800. 

THE ABOVE LANGUAGE, WHEN ENACTED, WAS INTENDED TO APPLY ESPECIALLY TO
IMMIGRANTS INTO THE UNITED STATES.  IT SOUGHT TO EMPHASIZE THE NATURAL
AND INHERENT RIGHT OF SUCH PEOPLE TO EXPATRIATE THEMSELVES FROM THEIR
NATIVE NATIONALITIES.  IT SOUGHT ALSO TO SECURE FOR THEM FULL
RECOGNITION OF THEIR NEWLY ACQUIRED AMERICAN CITIZENSHIP.  THE LANGUAGE
IS ALSO BROAD ENOUGH TO COVER, AND DOES COVER, THE CORRESPONDING
NATURAL AND INHERENT RIGHT OF AMERICAN CITIZENS TO EXPATRIATE
THEMSELVES. 

FN12  SEE NOTE 10, SUPRA. 

FN13  SEE NOTE 1, SUPRA. 

FN14  SEE NOTE 2, SUPRA. 

FN15  SEE NOTE 8, SUPRA. 

FN16  THE PRESENT STATUTE REQUIRES AN OATH IN THE FOLLOWING FORM: 

"I HEREBY DECLARE, ON OATH, THAT I ABSOLUTELY AND ENTIRELY RENOUNCE
AND ABJURE ALL ALLEGIANCE AND FIDELITY TO ANY FOREIGN PRINCE,
POTENTATE, STATE, OR SOVEREIGNTY OF WHOM OR WHICH I HAVE HERETOFORE
BEEN A SUBJECT OR CITIZEN; THAT I WILL SUPPORT AND DEFEND THE
CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AGAINST ALL
ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND
ALLEGIANCE TO THE SAME; AND THAT I TAKE THIS OBLIGATION FREELY WITHOUT
ANY MENTAL RESERVATION OR PURPOSE OF EVASION:  SO HELP ME GOD.  IN
ACKNOWLEDGMENT WHEREOF I HAVE HEREUNTO AFFIXED MY SIGNATURE."  54 STAT.
1157, 8 U.S.C. SEC. 735(B). 

FN17  SEE 3 HACKWORTH, DIGEST OF INTERNATIONAL LAW SECS. 243,
244(1942). 

THE CITIZENSHIP BOARD OF 1906, APPOINTED BY THE SECRETARY OF STATE,
PROPOSED THE EXPATRIATION PROVISIONS OF THE ACT OF 1907, AND SAID IN
SUPPORT OF THEM: 

"IT IS TRUE THAT BECAUSE OF CONFLICTING LAWS ON THE SUBJECT OF
CITIZENSHIP IN DIFFERENT COUNTRIES A CHILD MAY BE BORN TO A DOUBLE
ALLEGIANCE; BUT NO MAN SHOULD BE PERMITTED DELIBERATELY TO PLACE
HIMSELF IN A POSITION WHERE HIS SERVICES MAY BE CLAIMED BY MORE THAN
ONE GOVERNMENT AND HIS ALLEGIANCE BE DUE TO MORE THAN ONE."  H.R. DOC.
NO. 326, 59TH CONG., 2D SESS. 23(1906-1907). 

SIMILARLY, THE LEGISLATIVE HISTORY OF THE NATIONALITY ACT OF 1940
CONTAINS NO INTIMATION THAT SUBJECTIVE INTENT IS MATERIAL TO THE ISSUE
OF EXPATRIATION.  ON THE OTHER HAND, IT MAKES IT CLEAR THAT THE
RELEVANT PROVISIONS OF THE NEW ACT ARE A RESTATEMENT OF THOSE IN SEC. 2
OF THE ACT OF 1907, AND OF THE HISTORIC POLICY OF THE UNITED STATES. 
HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND NATURALIZATION
ON H.R. 6127, SUPERSEDED BY H.R. 9980, 76TH CONG., 1ST SESS. 489,
408(1940). 

IN SEC. 401 OF THE ACT OF 1940, CONGRESS ADDED A NUMBER OF PER SE
ACTS OF EXPATRIATION.  THESE INCLUDED, AMONG OTHERS, ENTERING THE ARMED
FORCES OF A FOREIGN STATE, ACCEPTING OFFICE IN A FOREIGN STATE TO WHICH
ONLY NATIONALS OF SUCH STATE WERE ELIGIBLE, AND VOTING IN A POLITICAL
ELECTION OF A FOREIGN STATE.  LACK OF INTENT TO ABANDON AMERICAN
CITIZENSHIP CERTAINLY COULD NOT OFFSET ANY OF THESE.  A FORTIORI A
MATURE CITIZEN WHO ACCEPTED NATURALIZATION INTO THE FULL CITIZENSHIP OF
A FOREIGN STATE COULD NOT HAVE BEEN INTENDED BY CONGRESS TO HAVE
GREATER FREEDOM TO ESTABLISH DUALITY OF CITIZENSHIP. 

CONGRESS FOUND IT NECESSARY AFTER WORLD WAR I TO ENACT SPECIAL
LEGISLATION TO ASSIST MEN TO REGAIN THEIR AMERICAN CITIZENSHIP AFTER
THEY HAD EXPATRIATED THEMSELVES BY TAKING A FOREIGN OATH OF ALLEGIANCE
REQUIRED TO PERMIT THEM TO ENLIST IN THE ARMIES OF CERTAIN FOREIGN
NATIONS.  40 STAT. 340, 542 ET SEQ. SEE 55 CONG. REC. 6935, 7665
7666(1917); S. REP. NO. 388, 65TH CONG., 2D SESS. 7-8(1917-1918); H.R.
REP. NO. 532, 65TH CONG., 2D SESS. 3-4(1917-1918); 56 CONG. REC. 6008
6009, 6011-6012(1917-1918).    FN18  "  ...  THE FORSAKING OF AMERICAN
CITIZENSHIP, EVEN IN A DIFFICULT SITUATION, AS A MATTER OF EXPEDIENCY,
WITH ATTEMPTED EXCUSE OF SUCH CONDUCT LATER WHEN CRASS MATERIAL
CONSIDERATIONS SUGGEST THAT COURSE, IS NOT DURESS."  DOREAU V.
MARSHALL, 170 F.2D 721, 724(C.A. 3D CIR.); BUT SEE, IN CASES OF REAL
DURESS, DOS REIS V. NICOLLS, 161 F.2D 860(C.A. 1ST CIR.); SCHIOLER V.
UNITED STATES, 75 F.SUPP.  353(N.D. ILL.); IN RE GOGAL, 75 F.SUPP. 
268(W.D. PA.). 

FN19  SEE SECS. 504, 601 OF THE ACT OF 1940, 54 STAT. 1172, 1174, 8
U.S.C. SECS. 904, 906.    FN20  IT IS APPARENT THAT CONGRESS DID NOT
INTEND TO LEAVE A GAP IN THE STATUTORY COVERAGE OF ACTS OF
EXPATRIATION. 

"SEC. 347.  (A)  NOTHING CONTAINED IN  ...  CHAPTER V (INCLUDING SEC.
504 WHICH EXPRESSLY REPEALED SEC. 2 OF THE ACT OF 1907) OF THIS ACT,
UNLESS OTHERWISE PROVIDED THEREIN, SHALL BE CONSTRUED TO AFFECT THE
VALIDITY OF ANY DECLARATION OF INTENTION, PETITION FOR NATURALIZATION,
CERTIFICATE OF NATURALIZATION OR OF CITIZENSHIP, OR OTHER DOCUMENT OR
PROCEEDING WHICH SHALL BE VALID AT THE TIME THIS ACT SHALL TAKE EFFECT;
OR TO AFFECT ANY PROSECUTION, SUIT, ACTION, OR PROCEEDINGS, CIVIL OR
CRIMINAL, BROUGHT, OR ANY ACT, THING, OR MATTER, CIVIL OR CRIMINAL,
DONE OR EXISTING, AT THE TIME THIS ACT SHALL TAKE EFFECT; BUT AS TO ALL
SUCH PROSECUTIONS, SUITS, ACTIONS, PROCEEDINGS, ACTS, THINGS, OR
MATTERS, THE STATUTES OR PARTS OF STATUTES REPEALED BY THIS ACT, ARE
HEREBY CONTINUED IN FORCE AND EFFECT."  54 STAT. 1168, 8 U.S.C. SEC.
747(A). 

PROVIDED SHALL NOT TERMINATE NATIONALITY HERETOFORE LAWFULLY ACQUIRED,
NOR RESTORE NATIONALITY HERETOFORE LOST UNDER ANY LAW OF THE UNITED
STATES OR ANY TREATY TO WHICH THE UNITED STATES MAY HAVE BEEN A
PARTY."  54 STAT. 1174, 8 U.S.C. SEC. 904. 

FN21  SECTION 403(A) OF THE ACT OF 1940(SEE NOTE 2, SUPRA) MAY APPLY
TO ANTECEDENT NATURALIZATIONS AND OATHS OF ALLEGIANCE, AS WELL AS TO
FUTURE ONES.  "A STATUTE IS NOT MADE RETROACTIVE MERELY BECAUSE IT
DRAWS UPON ANTECEDENT FACTS FOR ITS OPERATION."  COX V. HART, 260 U.S.
427, 435.  SEE ALSO, REYNOLDS V. UNITED STATES, 292 U.S. 443; UNITED
STATES V. BRADLEY, 83 F.2D 483(C.A.7TH CIR.); UNITED STATES EX REL.
ROJAK V. MARSHALL, 34 F.2D 219(W.D. PA.); 39 OP. ATTY. GEN. 474(1937
1940). 

FN22  SEE NOTE 2, SUPRA. 

FN23  SEE NOTE 10, SUPRA. 

FN24  WHERE "PERMANENT RESIDENCE" WAS INTENDED, THE STATUTE USED THAT
TERM.  E.G., SECS. 308 AND 407 OF THE ACT OF 1940, 54 STAT. 1143, 1170,
8 U.S.C. SECS. 708, 807. 

FN25  HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON H.R. 6127, SUPERSEDED BY H.R. 9980, 76TH CONG., 1ST
SESS. 417(1940). 

FN26  IF THE TEST IS TO BE MADE UNDER THE SAVING CLAUSE QUOTED IN
NOTE 20, SUPRA, THAT MAY MEAN THAT THE NEED AND CHARACTER OF HER
RESIDENCE ARE TO BE DETERMINED UNDER THE ACT OF 1907.  UNDER THE
CONTENTION OF THE DEPARTMENT OF JUSTICE NO RESIDENCE ABROAD WOULD BE
REQUIRED.  UNDER THE PRACTICE OF THE DEPARTMENT OF STATE SOME RESIDENCE
ABROAD WOULD BE REQUIRED.  3 HACKWORTH, DIGEST OF INTERNATIONAL LAW
SECS. 242-250(1942).  BUT WE BELIEVE THAT THE PROVISIONS OF SECS.
403(A) AND 104 OF THE ACT OF 1940 SUBSTANTIALLY REFLECT THE
REQUIREMENTS OF THAT RESIDENCE. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE BLACK JOINS, IS OF OPINION
THAT THE JUDGMENT OF THE DISTRICT COURT SHOULD BE REINSTATED.  LAW OF
COURSE DETERMINES THE LEGAL CONSEQUENCES OF CONDUCT.  BUT BOTH THE
CITIZENSHIP ACT OF 1907 AND THE NATIONALITY ACT OF 1940 RAISE ISSUES OF
FACT, AND THE DISTRICT COURT ALLOWABLY FOUND THE FACTS IN FAVOR OF THE
PETITIONER.  SINCE EXPATRIATION DOES NOT FOLLOW ON THE BASIS OF SUCH
FINDING, THE JUDGMENT OF THE DISTRICT COURT SHOULD NOT HAVE BEEN
DISTURBED.  73 F.SUPP.  109. 
..END :

















ALCOA S.S. CO. V. UNITED STATES, 338 U.S. 421 


NO. 271.  ARGUED NOVEMBER 16, 1949.  - DECIDED DECEMBER 19, 1949.  - 175
F.2D 661, AFFIRMED. 


GOVERNMENT PROPERTY WHICH WAS BEING CARRIED BY SEA UNDER A STANDARD
FORM GOVERNMENT BILL OF LADING WAS LOST BY ENEMY ACTION BEFORE REACHING
ITS DESTINATION.  THE GOVERNMENT BILL OF LADING PROVIDED THAT, "UNLESS
OTHERWISE SPECIFICALLY PROVIDED OR OTHERWISE STATED HEREON," THE
SHIPMENT WOULD BE GOVERNED BY THE RULES AND CONDITIONS APPLICABLE TO
COMMERCIAL SHIPMENTS; BUT PAYMENT WAS CONDITIONED ON PRESENTATION OF
THE BILL OF LADING "PROPERLY ACCOMPLISHED" AND OF A "FREIGHT VOUCHER
PREPARED ON THE AUTHORIZED GOVERNMENT FORM."  A "GOODS OR VESSEL LOST
OR NOT LOST" PROVISION IN THE CARRIER'S COMMERCIAL BILL OF LADING WOULD
HAVE ENTITLED THE CARRIER TO PAYMENT OF THE FREIGHT HAD THE SHIPMENT
BEEN A COMMERCIAL ONE.  HELD:  THE TERMS OF THE GOVERNMENT BILL OF
LADING, CONSIDERED WITH PROVISIONS OF THE REQUIRED VOUCHER, WERE
INCONSISTENT WITH THE "GOODS OR VESSEL LOST OR NOT LOST" PROVISION, AND
THE UNITED STATES WAS NOT LIABLE FOR THE FREIGHT ON THE LOST PROPERTY. 
PP. 422-429. 

ALCOA STEAMSHIP CO., INC. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUIT AGAINST THE UNITED STATES UNDER THE TUCKER ACT, NOW 28
U.S.C. SEC. 1346, TO RECOVER A SUM ALLEGED TO HAVE BEEN DUE UNDER A
CONTRACT OF AFFREIGHTMENT, THE DISTRICT COURT GAVE JUDGMENT FOR THE
CLAIMANT.  80 F.SUPP.  158.  THE COURT OF APPEALS REVERSED.  175 F.2D
661.  THIS COURT GRANTED CERTIORARI.  338 U.S. 813.  AFFIRMED, P. 429. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

IT IS A PRINCIPLE OF AMERICAN MARITIME LAW THAT OCEAN CARRIER FREIGHT
CHARGES ARE NOT EARNED UNLESS AND UNTIL THE GOODS ARE DELIVERED TO
DESTINATION.  FN1  BUT CONTRACTUAL PROVISIONS ESTABLISHING THE
SHIPPER'S LIABILITY FOR FREIGHT REGARDLESS OF ACTUAL DELIVERY HAVE BEEN
UNIFORMLY HELD VALID,  FN2  AND HAVE BECOME COMMON STIPULATIONS IN
CARRIERS' BILLS OF LADING.  SHIPMENTS OF GOVERNMENT PROPERTY ARE MADE
SUBJECT TO THE CONDITIONS OF THE CARRIER'S USUAL CONTRACT OF CARRIAGE
UNLESS THE GOVERNMENT STANDARD FORM BILL OF LADING SPECIFICALLY
PROVIDES OTHERWISE.  FN3  AT BAR IS THE SINGLE QUESTION OF CONTRACT
INTERPRETATION WHETHER A CARRIER'S "GOODS OR VESSEL LOST OR NOT LOST"
PROVISION SURVIVES THE TERMS OF THE GOVERNMENT STANDARD FORM BILL OF
LADING.  HAS THE GOVERNMENT BILL PROVIDED AGAINST LIABILITY FOR FREIGHT
CHARGES ON PUBLIC GOODS LOST AT SEA? 

ON JUNE 13, 1942, PETITIONER'S SHIP, S. S. GUNVOR, SHIPPED A CARGO OF
LUMBER AT MOBILE, ALABAMA, BOUND FOR TRINIDAD UNDER A GOVERNMENT FORM
BILL OF LADING.  ON HER FIRST DAY OUT SHE WAS TORPEDOED BY ENEMY
SUBMARINE.  SHIP AND CARGO WERE A TOTAL LOSS.  IN SPITE OF THE
CARRIER'S FAILURE TO DELIVER THE SHIPMENT, THE BILL OF LADING WAS
SURRENDERED TO IT, AND ITS CLAIM FOR FREIGHT ON THE LOST CARGO WAS PAID
BY THE WAR DEPARTMENT ON SEPTEMBER 15, 1942.  ON AUDIT, HOWEVER, THE
COMPTROLLER GENERAL DISALLOWED THE PAYMENT ON THE GROUND THAT THE
FREIGHT HAD NOT BEEN EARNED, AND THE SUM WAS OFFSET AGAINST OTHER
CLAIMS ADMITTEDLY OWING TO PETITIONER.  PETITIONER INSTITUTED THIS SUIT
UNDER THE TUCKER ACT IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK TO RECOVER THE FREIGHT CLAIMED.  THE CASE
IN NO WAY CONCERNS LIABILITY FOR THE VALUE OF THE CARGO LOST. 
REVERSING THE CONCLUSION OF THE DISTRICT COURT, THE COURT OF APPEALS
FOR THE SECOND CIRCUIT FOUND IN THE PROVISIONS OF THE STANDARD
GOVERNMENT FORM BILL OF LADING A "CAREFULLY DEVISED PLAN" TO PAY
FREIGHT CHARGES ONLY IF THE SHIPMENT ACTUALLY ARRIVES AT DESTINATION. 
FN4 WE GRANTED CERTIORARI BECAUSE DETERMINATION OF THE ISSUE RAISED
HERE WILL GUIDE ADJUSTMENT OF A LARGE BODY OF SIMILAR CLAIMS NOW
PENDING.  338 U.S. 813. 

REVIEW OF EXISTING CASE LAW AND PREVAILING COMMERCIAL USAGE
RESPECTING THE EARNING OF FREIGHT PROVIDES NO ASSISTANCE IN SOLVING THE
NARROW PROBLEM RAISED BY THE SPECIFIC CONTRACT NOW BEFORE US.  FURTHER,
IN VIEW OF OUR CONCLUSION IN THE CASE, WE NEED NOT DECIDE WHETHER WE
MAY PROPERLY CONSIDER THE GOVERNMENT'S EXTENSIVE ARGUMENT REGARDING
PAST ADMINISTRATIVE PRACTICE, NOR RULE UPON ITS RELEVANCE OR WEIGHT. 
AS TO PETITIONER'S CITATION TO TWO INSTANCES WHERE, ALLEGEDLY, CLAIMS
SIMILAR TO THIS WERE HONORED BY THE COMPTROLLER GENERAL, WE AGREE WITH
THE COURT BELOW THAT A CASE OF CONSISTENT ADMINISTRATIVE PRACTICE HAS
NOT BEEN MADE OUT, IF INDEED SUCH PRACTICE IS A RELEVANT
CONSIDERATION.  WE THEREFORE DEAL ONLY WITH THE BARE WORDS OF THE
CONTRACT. 

A BRIEF STATEMENT OF THE GENERAL SCHEME OF PAYMENT OF CARRIER CHARGES
UNDER THE GOVERNMENT BILL OF LADING WILL FACILITATE DISCUSSION OF THE
NICETIES IN THE DRAFTSMANSHIP.  THE STANDARD FORM BILL OF LADING IS
FILLED OUT BY THE CONSIGNOR AT THE TIME OF SHIPMENT, SIGNED BY THE
CARRIER'S AGENT AND TRANSMITTED TO THE CONSIGNEE.  THE CONSIGNEE, UPON
RECEIPT OF THE GOODS SHIPPED, ENDORSES THE CONSIGNEE'S CERTIFICATE
PRINTED ON THE BILL AND HANDS THE BILL OVER TO THE CARRIER.  THE
CARRIER THEN SUBMITS TO THE APPROPRIATE AGENCY THE ENDORSED BILL AND A
STANDARD FORM GOVERNMENT VOUCHER IN SUPPORT OF ITS CLAIM FOR THE
FREIGHT CHARGES.  SETTING FORTH THE DETAILS OF THIS DISBURSING
MACHINERY, THERE ARE PRINTED ON THE REVERSE OF THE BILL OF LADING
"GENERAL CONDITIONS AND INSTRUCTIONS," CLEARLY REFERRED TO UPON THE
FACE OF THE BILL.  FN5 

"CONDITION 2" OF THE GOVERNMENT BILL PROVIDES THE INITIAL BASIS FOR
THE CONTROVERSY HERE: 

"UNLESS OTHERWISE SPECIFICALLY PROVIDED OR OTHERWISE STATED HEREON,
THIS BILL OF LADING IS SUBJECT TO THE SAME RULES AND CONDITIONS AS
GOVERN COMMERCIAL SHIPMENTS MADE ON THE USUAL FORMS PROVIDED THEREFOR
BY THE CARRIER." 

CLAUSE 6 OF PETITIONER'S BILL OF LADING PROVIDES THAT: 

"FULL FREIGHT TO DESTINATION  ...  AND ALL ADVANCE CHARGES AGAINST
THE GOODS ARE DUE AND PAYABLE ...  AS SOON AS THE GOODS ARE RECEIVED
FOR PURPOSES OF TRANSPORTATION; ...  GOODS OR VESSEL LOST OR NOT LOST
...  " 

IT IS THEREFORE CONCEDED BY ALL PARTIES THAT UNDER THESE TWO QUOTED
PROVISIONS, THE UNITED STATES IS OBLIGATED TO PAY FREIGHT ON THE LOST
GUNVOR CARGO UNLESS THE TERMS OF THE GOVERNMENT BILL "SPECIFICALLY"
NEGATIVE THE CARRIER'S PROVISION.  WITH DUE REGARD TO THE PRINCIPLE OF
STRICT CONSTRUCTION AGAINST THE DRAFTSMAN OF A CONTRACT, WE HAVE
CONCLUDED THAT THE TERMS OF THE GOVERNMENT BILL OF LADING ARE
INCONSISTENT WITH PETITIONER'S CLAUSE 6, AND THAT THE UNITED STATES IS
NOT LIABLE FOR FREIGHT ON THIS LOST PUBLIC PROPERTY. 

OCCUPYING FIRST PLACE AMONG THE "CONDITIONS" TO THE BILL, AND CENTRAL
TO THE ISSUE HERE, IS THE PAYMENT PROVISION. 

"1.  PREPAYMENT OF CHARGES SHALL IN NO CASE BE DEMANDED BY CARRIER,
NOR SHALL COLLECTION BE MADE FROM CONSIGNEE.  ON PRESENTATION TO THE
OFFICE INDICATED ON THE FACE HEREOF OF THIS BILL OF LADING, PROPERLY
ACCOMPLISHED, ATTACHED TO FREIGHT VOUCHER PREPARED ON THE AUTHORIZED
GOVERNMENT FORM, PAYMENT WILL BE MADE  ...  " 

THE SIMPLE PROVISION AGAINST "PREPAYMENT" DOES NOT, WE THINK, FORCE
THE CONCLUSION THAT FREIGHT WILL BE PAID ONLY ON DELIVERED GOODS.  THIS
CLAUSE SEEMS TO US NOT TO FORBID ACCRUAL OF THE FREIGHT CHARGE
OBLIGATION IN ADVANCE OF DELIVERY, BUT ONLY TO PROHIBIT PAYMENT IN
ADVANCE.  FN6 BUT IT DOES SEEM CLEAR THAT THE SECOND SENTENCE OF
"CONDITION 1" EXPRESSLY CONDITIONS PAYMENT UPON SUBMISSION OF TWO
DOCUMENTS, THE BILL OF LADING "PROPERLY ACCOMPLISHED," AND A FREIGHT
VOUCHER PREPARED ON THE AUTHORIZED GOVERNMENT FORM.  IF THE CARRIER IS
PUT ON EXPRESS NOTICE THAT FULFILLMENT OF EITHER OF THESE CONDITIONS
POSITS ACTUAL DELIVERY OF THE CARGO, PETITIONER'S "LOST OR NOT LOST"
PROVISION MUST BE HELD VITIATED.  IN FACT, BOTH SPECIFICALLY
CONTEMPLATE ACTUAL DELIVERY. 

I. 

IT IS PETITIONER'S CONSTRUCTION THAT THE BILL OF LADING CONDITION HAS
BEEN FULLY SATISFIED.  "ACCOMPLISHMENT" HE ARGUES TO BE A TECHNICAL
TERM OF ANCIENT USE IN THE LAW OF THE SEA SIGNIFYING NO MORE THAN
SURRENDER OF THE BILL TO THE CARRIER BY THE CONSIGNEE OR OTHER
AUTHORIZED HOLDER.  THIS MAY BE CONCEDED IMMEDIATELY, AND INDEED THE
GOVERNMENT BILL SEEMS TO IMPLY THIS USAGE WHERE THE TERM IS USED
ALONE.  BUT IN THIS ONE PROVISION ON THE BILL THE TERM IS NOT USED
ALONE.  PAYMENT IS NOT CONDITIONED UPON SUBMISSION OF AN "ACCOMPLISHED"
BILL OF LADING; THE BILL MUST BE "PROPERLY ACCOMPLISHED."  FN7  UNLESS
THE MODIFIER BE HELD TO MEAN NOTHING, IT CAN ONLY BE INFERRED THAT MORE
THAN BARE "ACCOMPLISHMENT" IS CONTEMPLATED.  THE REQUISITES TO A
"PROPERLY ACCOMPLISHED" BILL ARE SPECIFICALLY SET FORTH.  WE ITALICIZE
THE PERTINENT WORDS. 

REFERENCE TO "INSTRUCTION 2" INFORMS THE CARRIER THAT: 

"THE CONSIGNEE ON RECEIPT OF THE SHIPMENT WILL SIGN THE CONSIGNEE'S
CERTIFICATE ON THE ORIGINAL BILL OF LADING AND SURRENDER THE BILL OF
LADING TO THE LAST CARRIER.  THE BILL OF LADING THEN BECOMES THE
EVIDENCE UPON WHICH SETTLEMENT FOR THE SERVICE WILL BE MADE." 

THIS CONSIGNEE'S CERTIFICATE, PRINTED ON THE FACE OF THE BILL, IS
DENOMINATED A "CERTIFICATE OF DELIVERY," AND IS INTRODUCED BY THE
WORDS: 

"I HAVE THIS DAY RECEIVED  ...  THE PUBLIC PROPERTY DESCRIBED IN THIS
BILL OF LADING, IN APPARENT GOOD ORDER AND CONDITION, EXCEPT AS NOTED
ON THE REVERSE HEREOF." 

"CONDITION 6" RECITES THAT: 

"RECEIPT OF THE SHIPMENT IS MADE SUBJECT TO THE 'REPORT OF LOSS,
DAMAGE, OR SHRINKAGE' NOTED HEREON."  AND "INSTRUCTION 6" CALLS FOR
NOTATION OF ALL LOSS OR DAMAGE BEFORE ACCOMPLISHMENT IF POSSIBLE.  IN
SUM, "THE" EVIDENCE UPON WHICH THE CARRIER MAY RELY FOR PAYMENT IS THE
"ACCOMPLISHED," OR SURRENDERED, BILL OF LADING, ACCOMPANIED BY THE
"CERTIFICATE OF DELIVERY" SIGNED "ON RECEIPT OF THE SHIPMENT," WITH THE
"RECEIPT" SUBJECT TO THE LOSS OR DAMAGE REPORT. 

THE ENTRIES MADE IN THE SITUATION AT BAR ARE THOSE THAT COULD BE
ANTICIPATED FROM THE TERMS OF THE BILL.  THE CONSIGNEE'S CERTIFICATE OF
DELIVERY IS ENDORSED ONLY:  "S. S. 'GUNVOR' HAS BEEN LOST DUE TO ENEMY
ACTION.  ...  FOR THE ACTING DISTRICT ENGINEER (SIGNATURE ILLEGIBLE)
SUPERINTENDENT, AUGUST 8, 1942."  THE INDICATED SPACES ON THE FORM WERE
NOT FILLED IN, NOR WAS ANY ENTRY MADE IN THE "REPORT OF LOSS, DAMAGE,
OR SHRINKAGE."  WE DO NOT, OF COURSE, SUGGEST THAT THE PARTICULAR
ENTRIES MADE ON THIS BILL DETERMINE THE CONTRACTUAL ISSUE, BUT IT SEEMS
INESCAPABLE THAT THE ENTRY WAS MADE ENTIRELY FOR THE RECORD IN
EXPLANATION OF THE FAILURE OF THE LUMBER TO ARRIVE.  WITHOUT RECEIPT OF
THE GOODS, THE BILL WAS NOT, AND COULD NOT HAVE BEEN, FILLED IN UNDER
THE STRICT TERMS OF THE STANDARD FORM WHICH WE HAVE STRESSED, SO AS TO
BE "PROPERLY ACCOMPLISHED" FOR PURPOSES OF PAYMENT TO THE CARRIER. 

                          II. 

BY THE TERMS OF "CONDITION 1" OF THE BILL OF LADING, PAYMENT IS
FURTHER CONDITIONED UPON SUBMISSION OF THE AUTHORIZED GOVERNMENT FORM
VOUCHER, A SEPARATE DOCUMENT N8.  ON THE REVERSE OF THIS VOUCHER FORM
ARE "INSTRUCTIONS TO CARRIERS," REFERRED TO ON THE FACE OF THE
VOUCHER.  IN THESE VOUCHER "INSTRUCTIONS" APPEARS IN UNEQUIVOCAL
LANGUAGE, STATEMENT OF THE GOVERNMENT'S POSITION THAT IT SHALL NOT BE
HELD LIABLE FOR FREIGHT ON UNDELIVERED GOODS.  "INSTRUCTION 6" READS
EXPLICITLY: 

"PAYMENT FOR TRANSPORTATION CHARGE WILL BE MADE ONLY FOR THE QUANTITY
OF STORES DELIVERED AT DESTINATION ...  "  FN9 

WE THINK OF BUT ONE ARGUMENT WHICH CAN BE ADVANCED AGAINST THE
CONCLUSIVENESS OF THIS CLAUSE.  "CONDITION 2" ON THE BILL OF LADING
INVOKES THE USUAL COMMERCIAL CONTRACT TERMS "UNLESS OTHERWISE
SPECIFICALLY PROVIDED OR OTHERWISE STATED HEREON"; IT IS ARGUABLE THAT
"HEREON" DOES NOT MEAN "THEREON," AND THAT CONSEQUENTLY THE CLEAR
PROVISION OF THE VOUCHER FORBIDDING PAYMENT FOR NON-DELIVERED GOODS
CANNOT BE CONSIDERED.  BUT, ASSUMING FOR ARGUMENT THAT NO RELIANCE MAY
BE PLACED UPON THE FURTHER CONDITION THAT THE BILL OF LADING BE
"PROPERLY ACCOMPLISHED," THIS REASONING LEADS TO THE ANOMALOUS
CONCLUSION THAT (1) UNDER THE PIECE OF PAPER LABELED "BILL OF LADING"
FREIGHT IS "EARNED" THOUGH THE GOODS ARE NOT DELIVERED; BUT (2) PAYMENT
WILL BE MADE ONLY ON A VOUCHER, WHICH EXPRESSLY DENIES THE RIGHT TO
PAYMENT FOR UNDELIVERED GOODS.  SUCH A CONSTRUCTION YIELDS AN ACCRUED
OBLIGATION, WITHOUT MEANS OF COLLECTION.  WE THINK IT MORE REASONABLE
TO ACCEPT THE AVAILABLE ALTERNATIVE READING, AND HOLD THAT THE WORDS IN
"CONDITION 2" "OTHERWISE STATED HEREON" ARE SATISFIED BY THE EXPRESS
REFERENCE ON THE BILL TO THE STANDARD VOUCHER AND THE SPECIFIC
CONDITIONING OF PAYMENT UPON SUBMISSION OF THAT VOUCHER. 

TO HOLD PETITIONER TO THE TERMS OF THE VOUCHER COMPORTS WITH
PRACTICALITIES.  THE INTENT OF THE GOVERNMENT TO CONDITION PAYMENT UPON
DELIVERY WE THINK ABUNDANTLY CLEAR, AND THE BASIC QUESTION IS WHETHER
THE GOVERNMENT'S DRAFTSMANSHIP SUCCEEDS IN GIVING UNEQUIVOCAL NOTICE OF
THIS STIPULATION.  THE BILL EXPRESSLY SUMMONS ATTENTION TO THE VOUCHER;
THE PROVISION ON THE VOUCHER IS UNMISTAKABLE.  AN EXPERIENCED CARRIER
COULD NOT HAVE BEEN UNFAMILIAR WITH THE EXPRESS TERMS OF A DOCUMENT
WHICH IT USES REGULARLY, A PRESCRIBED DOCUMENT UPON WHICH EVERY CLAIM
AGAINST ONE OF ITS LARGEST CUSTOMERS MUST BE MADE. 

SINCE IT SEEMS TO US THAT THE BILL OF LADING'S SPECIFIC CONDITIONS
FOR PAYMENT CAN ONLY BE SATISFIED UPON DELIVERY OF THE SHIPMENT TO
DESTINATION, WE HOLD THE TERMS OF THE GOVERNMENT BILL TO BE
INCONSISTENT WITH PETITIONER'S "GOODS OR VESSEL LOST OR NOT LOST"
PROVISION.  THE DECISION BELOW IS CORRECT, AND IS AFFIRMED. 

FN1  SEE, E.G., BRITTAN V. BARNABY, 21 HOW.  527, 533; CAZE & RICHAUD
V. BALTIMORE INS. CO., 7 CRANCH 358, 362; ROBINSON, ADMIRALTY, SEC.
82(1939); BORCHARD, THE EARNING OF FREIGHT ON UNCOMPLETED VOYAGES, 30
YALE L.J. 362(1921). 

FN2  E.G., INTERNATIONAL PAPER CO. V. THE GRACIE D. CHAMBERS, 248 U.S.
387; ALLANWILDE TRANSPORT CORP. V. VACUUM OIL CO., 248 U.S. 377. 

FN3  GOVERNMENT BILL OF LADING, STANDARD FORM 1058, APPROVED BY THE
COMPTROLLER GENERAL, AUGUST 24, 1928; 8 COMP. GEN. 698; "CONDITION 2"
QUOTED P. 424 INFRA. 

FN4  175 F.2D 661, 663. 

FN5  ALSO PRINTED ON THE BACK OF THE BILL ARE A SERIES OF
"ADMINISTRATIVE DIRECTIONS" AND A FORM FOR "REPORT OF LOSS, DAMAGE, OR
SHRINKAGE."    FN6  THE PROVISION WAS REQUIRED BY LAW.  FOR MORE THAN A
CENTURY IT HAD BEEN THE EXPRESSED LEGISLATIVE WILL THAT "NO ADVANCE OF
PUBLIC MONEY SHALL BE MADE IN ANY CASE WHATEVER  ...  "  3 STAT. 723. 
THE GOVERNMENT INTERPRETS A FURTHER PROVISION OF THIS STATUTE THAT "
...  PAYMENT SHALL NOT EXEED (EXCEED) THE VALUE OF THE SERVICE RENDERED
...  " TO RESOLVE THE ISSUE AT BAR IN ITS FAVOR.  LIKE THE COURT
BELOW, WE FIND IT UNNECESSARY TO PASS UPON THIS CONTENTION. 

FN7  THE ONLY OTHER USE OF THE MODIFIER SIGNIFICANTLY APPEARS IN THE
PARALLEL PROVISION ON THE REVERSE OF THE VOUCHER.  VOUCHER INSTRUCTION
1 READS:  "PAYMENT  ...  WILL BE MADE  ...  UPON THIS VOUCHER FORM,
ACCOMPANIED BY THE CORRESPONDING BILLS OF LADING, PROPERLY RECEIPTED;
...."    FN8  STANDARD FORM 1068, APPROVED BY THE COMPTROLLER GENERAL,
JUNE 26, 1931; 10 COMP. GEN. 588.  ALL CLAIMS AGAINST THE GOVERNMENT
FOR FREIGHT OR EXPRESS CHARGES MUST BE MADE UPON THIS STANDARD
VOUCHER. 

FN9  THE BALANCE OF THE SENTENCE IS NOT RELEVANT HERE.  IT READS: 

"...  EXCEPT THAT IN CASE OF LOSS OF WEIGHT FROM NATURAL SHRINKAGE EN
ROUTE AND WEIGHT SHIPPED, AS SHOWN BY THE BILL OF LADING, WILL BE PAID
FOR, PROVIDED PACKAGES ARE DELIVERED INTACT."  THE SYNTAX OF THIS
EXCEPTION CLAUSE IS DESTROYED BY THE CONJUNCTION IN ITALICS.  REFERENCE
TO THE OFFICIAL COPY AT 10 COMP. GEN. 589 SHOWS THAT "AND" IS A
PRINTER'S ERROR.  THE CORRECT WORD IS "THE". 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE BURTON DISSENT ON THE GROUNDS
EXPRESSED BELOW IN THE OPINION OF JUDGE AUGUSTUS N. HAND.  175 F.2D
661, 663. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















CARTER V. ATLANTA & ST. A.B.R. CO., 338 U.S. 430 


NO. 23.  ARGUED OCTOBER 14, 1949.  - DECIDED DECEMBER 19, 1949.  - 170
F.2D 719, REVERSED. 


IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT AND THE
SAFETY APPLIANCE ACT, BASED UPON A CHARGE OF NEGLIGENCE AND A CHARGE OF
A VIOLATION OF THE SAFETY APPLIANCE ACT THROUGH THE FAILURE OF AN
AUTOMATIC COUPLER, HELD: 

1.  IT WAS ERROR TO TAKE FROM THE JURY THE PHASE OF THE CASE
INVOLVING THE ALLEGED VIOLATION OF THE SAFETY APPLIANCE ACT, SINCE
THERE WAS EVIDENCE UPON WHICH A JURY COULD FIND A CAUSAL RELATION
BETWEEN THE FAILURE OF THE COUPLER AND THE PLAINTIFF'S INJURY.  PP. 433
435. 

(A)  THE DUTY IMPOSED ON AN INTERSTATE RAILROAD BY THE SAFETY
APPLIANCE ACT TO EQUIP CARS "WITH COUPLERS COUPLING AUTOMATICALLY BY
IMPACT" IS AN ABSOLUTE DUTY UNRELATED TO NEGLIGENCE, AND THE ABSENCE OF
A "DEFECT" CANNOT AID THE RAILROAD IF THE COUPLER WAS PROPERLY SET AND
FAILED TO COUPLE.  PP. 433-434. 

(B)  THE FACT THAT THE COUPLER FUNCTIONED PROPERLY ON OTHER OCCASIONS
IS IMMATERIAL.  P. 434. 

(C)  ONCE A VIOLATION OF THE SAFETY APPLIANCE ACT IS ESTABLISHED,
ONLY CAUSAL RELATION IS IN ISSUE, SINCE VIOLATION OF THAT ACT SUPPLIES
THE WRONGFUL ACT NECESSARY TO GROUND LIABILITY UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, REGARDLESS OF NEGLIGENCE.  P. 434. 

(D)  IF THE JURY DETERMINES THAT DEFENDANT'S VIOLATION OF THE SAFETY
APPLIANCE ACT IS "A CONTRIBUTORY PROXIMATE CAUSE" OF THE INJURY, IT MAY
FIND FOR PLAINTIFF.  P. 435. 

2.  IN AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT BASED ON
GENERAL NEGLIGENCE, CONTRIBUTORY NEGLIGENCE DOES NOT BAR RECOVERY BUT
AFFECTS ONLY THE AMOUNT OF DAMAGES RECOVERABLE; AND THE TRIAL COURT'S
INSTRUCTIONS TO THE JURY ON THIS ISSUE IN THIS CASE WERE ERRONEOUS AND
WERE PREJUDICIAL TO THE PLAINTIFF.  PP. 435-437. 

CARTER V. ATLANTA & ST. ANDREWS BAY RAILWAY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

IN AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THERE WAS A
VERDICT AGAINST PLAINTIFF UPON WHICH THE FEDERAL DISTRICT COURT ENTERED
JUDGMENT FOR DEFENDANT.  THE COURT OF APPEALS AFFIRMED.  170 F.2D 719. 
THIS COURT GRANTED CERTIORARI.  336 U.S. 935.  REVERSED, P. 437. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL SAFETY APPLIANCE ACTS REQUIRE RAILROAD CARS USED IN
INTERSTATE COMMERCE TO BE EQUIPPED WITH COUPLERS COUPLING AUTOMATICALLY
BY IMPACT.  FN1  THIS CASE BRINGS BEFORE US FOR REVIEW ANOTHER ACTION
FOR DAMAGES BY A RAILROAD EMPLOYEE UNDER THE SAFETY APPLIANCE ACTS AND
THE FEDERAL EMPLOYERS' LIABILITY ACT.  FN2  THE TRIAL COURT INSTRUCTED
THE JURY THAT THERE COULD BE NO LIABILITY BASED ON ANY "DEFECT" IN THE
"AUTOMATIC COUPLING SYSTEM," BUT SUBMITTED THE CASE ON ISSUES OF
NEGLIGENCE.  THERE WAS A VERDICT AGAINST THE PLAINTIFF UPON WHICH
JUDGMENT FOR THE RAILROAD WAS ENTERED.  THE COURT OF APPEALS AFFIRMED. 
170 F.2D 719.  WE GRANTED CERTIORARI BECAUSE OF THE CONFUSION WHICH HAS
DEVELOPED IN THE APPLICATION OF THE TWO STATUTES.  336 U.S. 935.  OUR
DUTY TO REVIEW CERTAIN CASES OF THIS NATURE IS SETTLED.  WILKERSON V.
MCCARTHY, 336 U.S. 53(1949); KEETON V. THOMPSON, 326 U.S. 689(1945);
ELLIS V. UNION PACIFIC R. CO., 329 U.S. 649(1947). 

ON FEBRUARY 2, 1946, THE PETITIONER WAS INJURED WHILE ACTING AS
"SWING MAN" OF A SWITCHING CREW ON THE RESPONDENT RAILROAD.  THE CREW
OF FIVE MEN WERE ENGAGED AT NIGHT IN SWITCHING OPERATIONS AT AND NEAR
THE INTERNATIONAL PAPER COMPANY PLANT IN PANAMA CITY, FLORIDA.  THE
CONDUCTOR OF THE CREW HAD LAID OUT A PLAN FOR COUPLING TOGETHER A
NUMBER OF CARS, SOME OF WHICH WERE ON STORAGE TRACKS AND ONE ON THE
MAIN LINE.  THE ULTIMATE OBJECTIVE WAS TO SWITCH SOME WOOD RACK CARS
LOADED WITH PULPWOOD INTO THE WOOD YARD OF THE PAPER CONCERN.  IN THE
CONDUCTOR'S ABSENCE PETITIONER WAS IN CHARGE OF THE SWITCHING
OPERATIONS AND ATTEMPTED TO CARRY OUT THE INSTRUCTIONS GIVEN HIM. 

THE ENGINE, AFTER COUPLING IN FRONT OF IT A BOX CAR FOLLOWED BY EIGHT
FLAT CARS, WAS ENGAGED IN BACKING THE TRAIN OF CARS ONTO THE MAIN LINE,
IN ORDER TO COUPLE, AT THE END OF THE TRAIN, A LOUISVILLE & NASHVILLE
RAILROAD WOOD RACK CAR LOADED WITH PULPWOOD.  THE PETITIONER HAD
PREVIOUSLY SET THE BRAKE AND HAD OPENED BOTH LIPS OF THE COUPLER ON THE
L. & N. CAR PREPARATORY TO ATTACHING THE CAR TO THE TRAIN.  HE HAD
GIVEN THE FOOTBOARD MAN THE SLOW SIGNAL AHEAD FOR COUPLING, WHICH HAD
BEEN PASSED ON TO THE ENGINEER.  THE ENGINEER BROUGHT THE TRAIN FORWARD
AND HIT THE L. & N. CAR IN THE USUAL MANNER NECESSARY FOR COUPLING, BUT
INSTEAD OF COUPLING TO THE TRAIN THE L. & N. CAR STARTED ROLLING DOWN
THE TRACKS, WHICH WERE, AT THIS POINT, ON A DOWNGRADE. 

PETITIONER SAW THAT THE L. & N. CAR HAD NOT COUPLED AND RAN AFTER IT
FOR SOME FIFTY OR SIXTY FEET, CLIMBED TO THE BULKHEAD WHERE THE BRAKE
WHEEL WAS LOCATED, AND APPLIED THE HAND BRAKE TO STOP THE CAR.  HE WAS
ABLE TO BRING THE CAR TO A STOP ONLY AFTER IT HAD LEFT THE MAIN LINE
AND TRAVELED AROUND A CURVE FOR SOME SIX CAR LENGTHS.  LOOKING UP, HE
SAW THE TRAIN MOVING TOWARD HIM ABOUT TWENTY FEET AWAY AT A SPEED WHICH
CONFLICTING TESTIMONY PLACES AT A MAXIMUM OF FIFTEEN MILES PER HOUR TO
A MINIMUM OF TWO MILES PER HOUR.  PETITIONER GRABBED THE BRAKE WHEEL TO
BRACE HIMSELF, BUT THE TRAIN HIT THE L. & N. CAR SO VIOLENTLY THAT IT
THREW THE PETITIONER ABOUT SIX FEET DOWN INTO ITS HOLD.  THIS TIME THE
COUPLING WAS SUCCESSFUL, AND AS THE L. & N. CAR JERKED FROM THE IMPACT
SOME OF THE PULPWOOD LOADED IN THE CAR WAS PITCHED FORWARD ON THE
PETITIONER, CAUSING THE ALLEGED INJURIES. 

THE ENGINEER TESTIFIED THAT HE DID NOT KNOW WHETHER THE L. & N. CAR
HAD SAFELY COUPLED AT THE FIRST IMPACT.  HE CONTENDED THAT AFTER THIS
IMPACT, HE RECEIVED THE COME-AHEAD SIGNAL FROM THE PETITIONER,
WHEREUPON HE MOVED THE TRAIN FORWARD AT ABOUT SIX MILES PER HOUR.  THE
TESTIMONY WAS IN SHARP CONFLICT WITH REFERENCE TO THIS SIGNAL, AS WELL
AS TO OTHER DETAILS OF THE INCIDENT. 

DEFENDANT MOVED FOR A DIRECTED VERDICT AS TO THE FAILURE TO COUPLE ON
THE GROUND THAT WHILE THE COUPLER FAILED TO COUPLE ON THE INITIAL
IMPACT, "IT WORKED PREVIOUSLY AND WORKED SUBSEQUENTLY, AND THE PROOF
SHOWS NO DEFECT IN IT; AND UNDER THE FINDING IN WESTERN & ATLANTIC
RAILROAD COMPANY VS. GENTILE, 198 S.E. 257, THAT THIS RULE OF LAW IS
LAID DOWN  ...  THAT THE FAILURE OF COUPLERS TO COUPLE AUTOMATICALLY BY
IMPACT IS NOT PER SE A VIOLATION OF THIS ACT  ...  "  THE DISTRICT
COURT GRANTED THE MOTION, INSTRUCTING THE JURY "THAT THERE IS NO
EVIDENCE IN THIS CASE  ...  FROM WHICH YOU COULD PROPERLY FIND THERE
WAS DEFECT IN THIS  ...  AUTOMATIC COUPLING SYSTEM ON THAT CAR."  THE
COURT OF APPEALS AFFIRMED ON ANOTHER THEORY:  THAT THE FAILURE TO
COUPLE ON THE FIRST IMPACT "WAS THE REMOTE, NOT THE PROXIMATE, CAUSE OF
PLAINTIFF'S INJURIES." 

THE TRIAL COURT DID SUBMIT THE CAUSE ON THE MORE GENERAL NEGLIGENCE
ALLEGATIONS, AND ON THESE A VERDICT WAS RETURNED FOR THE RESPONDENT. 
BUT PETITIONER OBJECTS TO THOSE PORTIONS OF THE TRIAL COURT'S CHARGE
COVERING CONTRIBUTORY NEGLIGENCE.  THE COURT OF APPEALS ADMITTED THAT
STANDING ALONE, THE CHARGE "MIGHT POSSIBLY HAVE BEEN PREJUDICIAL," BUT
STATED THAT HERE IT WAS "INCONSEQUENTIAL." 

IN THESE CONCLUSIONS THE COURT BELOW WAS IN ERROR. 

FIRST.  SINCE 1893 THE CONGRESS HAS MADE IT UNLAWFUL FOR A RAILROAD
COMPANY SUCH AS RESPONDENT TO USE ANY CAR ON ITS LINE "NOT EQUIPPED
WITH COUPLERS COUPLING AUTOMATICALLY BY IMPACT."  THIS COURT HAS
REPEATEDLY ATTEMPTED TO MAKE CLEAR THAT THIS IS AN ABSOLUTE DUTY
UNRELATED TO NEGLIGENCE, AND THAT THE ABSENCE OF A "DEFECT" CANNOT AID
THE RAILROAD IF THE COUPLER WAS PROPERLY SET  FN3  AND FAILED TO COUPLE
ON THE OCCASION IN QUESTION.  SEE O'DONNELL V. ELGIN, JOLIET & EASTERN
R. CO., 338 U.S. 384, 390(1949), AND CASES CITED.  THE FACT THAT THE
COUPLER FUNCTIONED PROPERLY ON OTHER OCCASIONS IS IMMATERIAL. 

BUT RESPONDENT CONTENDS THAT WHEN THE L. & N. CAR CAME TO REST AFTER
THE FAILURE OF THE COUPLER "ITS CAPACITY FOR DOING HARM WAS SPENT." 
THE SECOND MOVEMENT, IT ARGUES, IN WHICH THE COUPLING WORKED PERFECTLY,
STARTED A NEW CHAIN OF EVENTS RESULTING IN CARTER'S INJURY. 

WE CANNOT AGREE THAT THE VARIOUS EVENTS WERE SO DIVISIBLE.  THIS WAS
A TWO-PRONGED COMPLAINT, ALLEGING THE RIGHT TO RECOVER UNDER THE SAFETY
APPLIANCE ACT AND THE FEDERAL EMPLOYERS' LIABILITY ACT.  IN THIS
SITUATION THE TEST OF CAUSAL RELATION STATED IN THE EMPLOYERS'
LIABILITY ACT IS APPLICABLE, THE VIOLATION OF THE APPLIANCE ACT
SUPPLYING THE WRONGFUL ACT NECESSARY TO GROUND LIABILITY UNDER THE
F.E.L.A.  SEE MOORE V. CHESAPEAKE & OHIO R. CO., 291 U.S. 205,
216(1934); O'DONNELL V. ELGIN, JOLIET & EASTERN R. CO., SUPRA; CORAY V.
SOUTHERN PACIFIC CO., 335 U.S. 520(1949).  SOMETIMES THAT VIOLATION IS
DESCRIBED AS "NEGLIGENCE PER SE," H.R. REP. NO. 1386, 60TH CONG., 1ST
SESS., P. 6; SAN ANTONIO & A.P.R. CO. V. WAGNER, 241 U.S. 476,
484(1916); BUT WE HAVE MADE CLEAR IN THE O'DONNELL CASE THAT THAT TERM
IS A CONFUSING LABEL FOR WHAT IS SIMPLY A VIOLATION OF AN ABSOLUTE
DUTY. 

ONCE THE VIOLATION IS ESTABLISHED, ONLY CAUSAL RELATION IS IN ISSUE. 
AND CONGRESS HAS DIRECTED LIABILITY IF THE INJURY RESULTED "IN WHOLE OR
IN PART" FROM DEFENDANT'S NEGLIGENCE OR ITS VIOLATION OF THE SAFETY
APPLIANCE ACT.  WE MADE CLEAR IN CORAY V. SOUTHERN PACIFIC CO., SUPRA,
335 U.S. AT 523, THAT IF THE JURY DETERMINES THAT THE DEFENDANT'S
BREACH IS "A CONTRIBUTORY PROXIMATE CAUSE" OF INJURY, IT MAY FIND FOR
THE PLAINTIFF.  SEE ALSO UNION PACIFIC R. CO. V. HADLEY, 246 U.S. 330,
333(1918); SPOKANE & I.E.R. CO. V. CAMPBELL, 241 U.S. 497, 510(1916). 

CERTAINLY THERE WAS EVIDENCE UPON WHICH A JURY COULD FIND A CAUSAL
RELATION BETWEEN THE FAILURE TO COUPLE, THE ACTION OF PETITIONER IN
RUNNING AND STOPPING THE ROLLING CAR, THE ENGINEER'S JUSTIFIED
ASSUMPTION THAT THE CAR HAD COUPLED WHEN IN FACT IT HAD FAILED TO DO
SO, AND THE CONTINUED MOVEMENT OF THE TRAIN INTO THE STANDING CAR, THUS
CAUSING INJURY.  SEE LOUISVILLE & NASHVILLE R. CO. V. LAYTON, 243 U.S.
617(1917); ERIE R. CO. V. CALDWELL, 264 F. 947(1920).  IT WAS ERROR TO
TAKE THIS PHASE OF THE CASE FROM THE JURY. 

SECOND.  IN RULING ON PETITIONER'S GENERAL NEGLIGENCE ALLEGATIONS THE
TRIAL COURT FELL INTO ERRORS IN ITS CHARGE ON CONTRIBUTORY NEGLIGENCE
FN4  WHICH OCCUR SO FREQUENTLY THAT WE WILL DISCUSS THEM BRIEFLY.  THE
CHARGE IS REPLETE WITH PHRASES SUCH AS, "IF YOU SHOULD FIND HIS (THE
PETITIONER'S) OWN NEGLIGENCE WAS THE PROXIMATE CAUSE OF WHATEVER INJURY
FOLLOWED," THE VERDICT MUST BE FOR THE RESPONDENT.  WITH PROPER
EXPLANATIONS, THE COURT COULD HAVE ADVISED THE JURY THAT IF
PETITIONER'S OWN NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY,
THE VERDICT MUST BE FOR RESPONDENT; BUT HERE THE COURT AGAIN AND AGAIN
USED SUCH PHRASES AS "IF YOU SHOULD FIND HIS INJURY WAS DIRECTLY OR
PROXIMATELY CAUSED BY HIS OWN NEGLIGENCE," VERDICT MUST BE FOR THE
RAILROAD; AND IF YOU FIND "THAT HIS OWN NEGLIGENCE IN NO MANNER
CONTRIBUTED TO HIS INJURY"; "IF YOU FIND  ... HE WAS NOT NEGLIGENT IN
ANY MANNER," THE VERDICT MUST BE FOR THE PLAINTIFF.  WE ARE UNABLE TO
SAY SUCH ERROR WAS INCONSEQUENTIAL.  IT VIOLATES THE DIRECT COMMAND OF
THE ACT OF CONGRESS.  THE "FACT THAT THE EMPLOYEE MAY HAVE BEEN GUILTY
OF CONTRIBUTORY NEGLIGENCE SHALL NOT BAR A RECOVERY, BUT THE DAMAGES
SHALL BE DIMINISHED BY THE JURY IN PROPORTION TO THE AMOUNT OF
NEGLIGENCE ATTRIBUTABLE TO SUCH EMPLOYEE ...  "  35 STAT. 66, 45 U.S.C.
SEC. 53.  FN5  THE NEGLIGENCE OF THE PETITIONER AND THAT OF THE
RAILROAD SHOULD HAVE BEEN SUBMITTED TO THE JURY, AND IN THE LIGHT OF
THIS COMPARISON A VERDICT REACHED THAT WOULD DO JUSTICE TO ALL
CONCERNED.  SEE TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54,
65(1943). 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  "IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER ENGAGED IN
INTERSTATE COMMERCE BY RAILROAD TO HAUL OR PERMIT TO BE HAULED OR USED
ON ITS LINE ANY CAR USED IN MOVING INTERSTATE TRAFFIC NOT EQUIPPED WITH
COUPLERS COUPLING AUTOMATICALLY BY IMPACT, AND WHICH CAN BE UNCOUPLED
WITHOUT THE NECESSITY OF MEN GOING BETWEEN THE ENDS OF THE CARS."  27
STAT. 531, 45 U.S.C. SEC. 2. 

FN2  35 STAT. 65, AS AMENDED, 45 U.S.C. SECS. 51-59. 

FN3  SEE MYERS V. READING CO., 331 U.S. 477, 483(1947). 

RESPONDENT CONCEDED, IN OPPOSING CERTIORARI, THAT "THE SAFETY
APPLIANCE ACT WAS VIOLATED -  ... A COUPLING FAILED TO COUPLE ON IMPACT
...  "  THAT STATEMENT IS APPARENTLY ABANDONED NOW, FOR THE ARGUMENT
IS THAT CARTER SET THE COUPLER IMPROPERLY.  ON THE RECORD BEFORE US IT
IS CLEAR THAT THAT IS A JURY QUESTION. 

FN4  OUR RULING HERE, OF COURSE, IS DIRECTED AT THE TRIAL COURT'S
CHARGE ON THE PETITIONER'S GENERAL NEGLIGENCE ALLEGATIONS.  IN
VIOLATIONS OF THE SAFETY APPLIANCE ACT, NO EMPLOYEE "SHALL BE HELD TO
HAVE BEEN GUILTY OF CONTRIBUTORY NEGLIGENCE  ...  ," 45 U.S.C. SEC. 53,
EVEN FOR PURPOSES OF JURY COMPARISON.  SEE CORAY V. SOUTHERN PACIFIC
CO., SUPRA. 

FN5  RESPONDENT ARGUES THAT THE COURT REMEDIED THESE ERRORS AFTER THE
ORAL CHARGE HAD BEEN GIVEN.  WE SEE NO BASIS FOR THAT CONCLUSION; THE
COURT'S ACTION AT THAT TIME WAS EQUIVOCAL AT BEST.  THE RECORD RECITES
THE FOLLOWING: 

"MR. PETTUS:  YOUR HONOR SAID IF THE PLAINTIFF NEGLIGENTLY CAUSED HIS
OWN INJURY, HE COULD NOT RECOVER.  IF THE PLAINTIFF BY HIS NEGLIGENCE
PROXIMATELY CAUSED HIS INJURY, HE COULDN'T RECOVER.  YOUR HONOR OMITTED
'SOLE'.  IN OTHER WORDS, IF THE PLAINTIFF'S NEGLIGENCE WERE THE SOLE
PROXIMATE CAUSE, OF COURSE HE COULDN'T RECOVER. 

"THE COURT:  I WILL MODIFY IT TO THAT EXTENT.  THAT SIMPLY MEANS
WHETHER HIS OWN NEGLIGENCE WAS WHOLLY RESPONSIBLE FOR HIS INJURY.  IF
HE IS TOTALLY RESPONSIBLE, IT WOULD NOT MAKE ANY DIFFERENCE AS TO
NEGLIGENCE ON THE OTHER SIDE.  ... 

"MR. PETTUS:  WE EXCEPT TO THAT LATTER PART OF YOUR HONOR'S CHARGE,
'WOULD NOT MAKE ANY DIFFERENCE ON THE OTHER SIDE.'  WE EXCEPT TO YOUR
HONOR'S CHARGE THAT THERE WAS NO DEFECT IN THE HAND BRAKE, AND ALSO
THAT PORTION OF YOUR HONOR'S CHARGE THAT THE PLAINTIFF NEGLIGENTLY SET
THE HAND BRAKE, AUTOMATIC COUPLING, AND THAT WAS THE PROXIMATE CAUSE,
WITHOUT LIMITING IT AND SAYING IT WAS THE SOLE CAUSE.  IN OTHER WORDS,
WAS THE PROXIMATE CAUSE AND NOT THE SOLE CAUSE.  AND THEN WHEN YOUR
HONOR WAS READING A WRITTEN CHARGE YOU SAID, IN EXPLANATION, 'IF THE
DIRECT OR PROXIMATE CAUSE OF PLAINTIFF'S OWN NEGLIGENCE,' AND WE EXCEPT
TO THAT ON THE GROUND YOU DID NOT SAY IT MUST BE THE SOLE CAUSE.  WE
ASKED YOU AN EXPLANATORY CHARGE ON THAT RULE, IF YOUR HONOR WILL GIVE
IT AT THIS TIME.  I THINK YOUR HONOR OVERLOOKED CHARGING IT.  IF YOU
WILL LOOK AT THE RULE. 

"THE COURT:  I THINK I WILL REFUSE THIS CHARGE. 

"MR. PETTUS:  REFUSE IT? 

"THE COURT:  YES.  GIVE YOU AN EXCEPTION." 

MR. JUSTICE REED DISSENTS.  IN HIS VIEW THE FAILURE OF THE AUTOMATIC
COUPLER TO FASTEN ON THE FIRST IMPACT WAS NOT A PROXIMATE CAUSE OF THE
INJURY TO PETITIONER.  THE FAILURE DID NOT CONTRIBUTE TO THE INJURY. 
THAT WAS CAUSED BY A TOO RAPID COUPLING ON THE SECOND EFFORT.    ANY
DEFICIENCY IN THE INSTRUCTIONS ON NEGLIGENCE WAS CURED BY THE COURT'S
MODIFICATION OF THE INSTRUCTION SET OUT IN NOTE 5 OF THE OPINION. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER. 

PROPERLY DEEMING INDUSTRIAL INJURIES INHERENTLY INCIDENTAL TO THE
CONDUCT OF MODERN INDUSTRY, THE LAW THROUGHOUT THE UNITED STATES DEALS
WITH THEM AS SUCH ON THE PRINCIPLE OF INSURANCE, NOT ON THE PRINCIPLE
OF NEGLIGENCE.  THE WORKMEN'S COMPENSATION LAWS THEREBY ELIMINATED ALL
THE INEVITABLY CASUISTIC EFFORTS TO APPLY THE CONCEPTS OF "NEGLIGENCE,"
"PROXIMATE CAUSE" AND "CONTRIBUTORY NEGLIGENCE" WHICH SERVED WELL
ENOUGH EMPLOYER-EMPLOYEE RELATIONS WHICH HAVE LONG SINCE CEASED.  TO
APPLY THE CONCEPTS OF "NEGLIGENCE" AND "PROXIMATE CAUSE" TO THE
INFINITE COMPLEXITIES OF MODERN INDUSTRY IS LIKE CATCHING BUTTERFLIES
WITHOUT A NET.  BUT AS TO INJURIES SUFFERED BY RAILROAD EMPLOYEES,
COURTS AND JURIES MUST CONTINUE TO APPLY THESE CONCEPTS SO LONG AS THE
ANACHRONISTIC FEDERAL EMPLOYERS' LIABILITY ACT REMAINS. 

HAPPILY, HOWEVER, CONGRESS HAS NOT SAID THAT ALL THE CASUISTRIES
ABOUT "PROXIMATE CAUSE" MUST BE ADJUDICATED BY THREE COURTS.  AS AN
INDISPENSABLE REQUIREMENT OF THE FUNCTIONING OF THIS COURT, CONGRESS
HAS LEFT IT TO OUR DISCRETION TO DECIDE WHETHER, AFTER A DISTRICT COURT
AND A COURT OF APPEALS OR TWO COURTS OF A STATE HAVE WRESTLED WITH THE
PHANTOMS OF PROXIMATE CAUSE, THIS COURT SHOULD HAVE ANOTHER GO AT IT.
A LAW BY WHICH INJURIES SUSTAINED BY RAILROAD EMPLOYEES IN THE COURSE
OF THEIR EMPLOYMENT ARE COMPENSATED ON THE BASIS OF NEGLIGENCE IS BOUND
TO WORK INJUSTICE, AND HARDSHIPS IN PARTICULAR SITUATIONS NATURALLY
PRESENT HUMANE OPPORTUNITIES FOR ALLEVIATION.  BUT NO AMOUNT OF
STRETCHING OF NEGLIGENCE CONCEPTS CAN CHANGE THE ACT'S CHARACTER AND
THE MISCHIEF THAT IT DOES AS A CRUEL SURVIVAL OF A BY-GONE ERA.  AND IT
IS INCONSISTENT WITH THE FUNCTIONS OF THIS COURT TO YIELD TO SUCH
TEMPTATIONS BY TAKING CASES IN WHICH A CONSCIENTIOUS APPELLATE COURT
FELT COMPELLED TO DECIDE AGAINST A RAILROAD EMPLOYEE ON ITS JUSTIFIABLE
APPLICATION OF THE DUBIOUS REQUIREMENTS OF NEGLIGENCE, EVEN THOUGH A
CONTRARY VIEW MIGHT ALSO BE TAKEN.  WHERE A CASE INVOLVES NO GENERAL
PRINCIPLE REQUIRING PRONOUNCEMENT BUT MERELY ITS OWN UNIQUE
CIRCUMSTANCES, SUCH ALLEVIATION IS INCONSISTENT WITH THE CRITERIA, SET
FORTH IN RULE 38, GOVERNING THIS COURT'S DISCRETION IN GRANTING A WRIT
OF CERTIORARI. 

THE ARGUMENT AT THE BAR OF THIS COURT AND THE OPINIONS DEALING WITH
THE MERITS LEAVE NO ROOM FOR DOUBT THAT NO GENERAL PRINCIPLE IS HERE
INVOLVED.  THERE IS MERELY A DIFFERENCE IN THE APPLICATION OF
PROFESSEDLY SETTLED RULES TO THE CIRCUMSTANCES OF THIS PARTICULAR
CASE.  THREE EXPERIENCED JUDGES OF THE COURT OF APPEALS HAVE FOUND NO
ERROR IN THE JUDGMENT THAT WAS RENDERED FOR THE DEFENDANT.  THE
DIVISION IN THIS COURT UNDERLINES THE FACT THAT THE THREE JUDGES BELOW
COULD NOT UNREASONABLY HAVE ENTERTAINED THE VIEW THEY DID.  I AM NOT
REMOTELY SUGGESTING THAT THIS COURT HAS NOT REACHED THE RIGHT RESULT,
IF IT HAD TO DEAL WITH THE MERITS.  FOR ME IT IS DECISIVE THAT, SINCE
THE MERITS INVOLVE MERELY EVALUATION OF THE UNIQUE FACTS IN THE RECORD,
THE CASE DOES NOT FALL WITHIN THE PROPER BUSINESS OF THE COURT. 

I WOULD THEREFORE DISMISS THE WRIT AS IMPROVIDENTLY GRANTED.  BY NOT
DOING SO, THE COURT ENCOURAGES PETITIONS OF THIS CHARACTER INSTEAD OF
DISCOURAGING THEM.  THE COURT SHOULD SAVE ITS ENERGY FOR CASES IT
NECESSARILY MUST ADJUDICATE IN ORDER TO ADJUDICATE THEM WITH DUE REGARD
FOR THE NEEDS OF THE DELIBERATIVE PROCESS.  THE ONLY EFFECTIVE WAY TO
RESPECT THESE CONSIDERATIONS IS TO CEASE ACQUIESCENCE IN THEIR
DISREGARD.  SEE WILKERSON V. MCCARTHY, 336 U.S. 53, 64(CONCURRING
OPINION). 
..END :





















HUBSCH V. UNITED STATES, 338 U.S. 440 


NO. 379.  DECIDED DECEMBER 19, 1949.* *TOGETHER WITH NO. 380, SCHWEITZER
V. UNITED STATES. 


THE AUTHORITY AND RESPONSIBILITY FOR PASSING UPON A PROPOSED
COMPROMISE OF A CLAIM ARISING UNDER THE FEDERAL TORT CLAIMS ACT, AFTER
COMMENCEMENT OF AN ACTION THEREON, ARE IMPOSED BY 28 U.S.C. SEC. 2677
ON THE DISTRICT COURT; AND SUCH A PROPOSED COMPROMISE, SUBMITTED HERE
AFTER GRANT OF CERTIORARI TO REVIEW A JUDGMENT OF THE COURT OF APPEALS
AFFIRMING JUDGMENTS OF THE DISTRICT COURT ON SUCH CLAIMS, IS REFERRED
TO THE DISTRICT COURT FOR CONSIDERATION AND DISPOSITION. 

HUBSCH V. UNITED STATES. 

ON APPLICATION OF PETITIONERS AND THE SOLICITOR GENERAL FOR APPROVAL
OF SETTLEMENT. 

PER CURIAM. 

WE GRANTED WRITS OF CERTIORARI IN THESE CASES, 338 U.S. 814, TO
REVIEW A DECISION OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, 174
F.2D 7, AFFIRMING JUDGMENTS OF THE DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA IN FAVOR OF THE UNITED STATES ON CLAIMS ARISING
UNDER THE FEDERAL TORT CLAIMS ACT.  BEFORE ARGUMENT, PETITIONERS AND
THE SOLICITOR GENERAL SUBMITTED A JOINT APPLICATION FOR APPROVAL OF
PROPOSED SETTLEMENTS OF THE CLAIMS, CITING 28 U.S.C. SEC. 2677, WHICH
READS AS FOLLOWS: 

"THE ATTORNEY GENERAL, WITH THE APPROVAL OF THE COURT, MAY ARBITRATE,
COMPROMISE, OR SETTLE ANY CLAIM COGNIZABLE UNDER SECTION 1346(B) OF
THIS TITLE (SUITS UNDER THE TORT CLAIMS ACT), AFTER THE COMMENCEMENT OF
AN ACTION THEREON." 

WE CONSTRUE SEC. 2677 AS IMPOSING ON THE DISTRICT COURT THE AUTHORITY
AND RESPONSIBILITY FOR PASSING ON PROPOSED COMPROMISES, NOTWITHSTANDING
THE JUDGMENTS OF THE COURT OF APPEALS AFFIRMING THE JUDGMENTS OF THE
DISTRICT COURT HERETOFORE ENTERED HEREIN.  THE APPLICATION AND
STIPULATIONS ARE THEREFORE REFERRED TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA WITH AUTHORITY TO CONSIDER AND
DISPOSE OF THE SAME.  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







UNITED STATES V. AETNA SURETY CO., 338 U.S. 366 


ARGUED OCTOBER 19-20, 1949.  - DECIDED DECEMBER 12, 1949.  - JUDGMENTS
AFFIRMED. 


NOTWITHSTANDING R.S. SEC. 3477, RESTRICTING ASSIGNMENTS OF CLAIMS
AGAINST THE UNITED STATES, AN INSURANCE COMPANY MAY BRING AN ACTION
UNDER THE FEDERAL TORT CLAIMS ACT IN ITS OWN NAME AGAINST THE UNITED
STATES UPON A CLAIM TO WHICH IT HAS BECOME SUBROGATED BY PAYMENT TO AN
INSURED WHO WOULD HAVE BEEN ABLE TO BRING SUCH ACTION.  PP. 367-383. 

(A)  R.S. SEC. 3477 DOES NOT BAR TRANSFERS BY OPERATION OF LAW. 
UNITED STATES V. GILLIS, 95 U.S. 407; ERWIN V. UNITED STATES, 97 U.S.
392; GOODMAN V. NIBLACK, 102 U.S. 556.  PP. 370-376. 

(B)  IT WAS THE UNDERSTANDING OF CONGRESS WHEN IT PASSED THE TORT
CLAIMS ACT THAT SUBROGATION CLAIMS WERE NOT WITHIN THE BAR OF R.S. SEC.
3477.  PP. 376-380. 

(C)  UNDER RULE 17(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH
WERE SPECIFICALLY MADE APPLICABLE TO TORT CLAIMS LITIGATION, AN INSURER
SUBROGEE IS A "REAL PARTY IN INTEREST" AND MAY SUE IN ITS OWN NAME -
EVEN THOUGH IT MAY BE SUBROGATED TO ONLY PART OF A CLAIM.  PP. 380
383. 

UNITED STATES V. AETNA CASUALTY & SURETY CO. 

NO. 35.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT* . 

*TOGETHER WITH NO. 36, UNITED STATES V. WORLD FIRE & MARINE INSURANCE
CO., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT; NO. 37, UNITED STATES V. YORKSHIRE INSURANCE CO., ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT;
AND NO. 38, UNITED STATES V. HOME INSURANCE CO., ALSO ON CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. 

IN NO. 35, A DISTRICT COURT DISMISSED AN ACTION AGAINST THE UNITED
STATES UNDER THE FEDERAL TORT CLAIMS ACT BROUGHT BY AN INSURER WHO HAD
REIMBURSED AN EMPLOYEE OF AN INSURED FOR PERSONAL INJURIES RESULTING
FROM NEGLIGENCE OF A GOVERNMENT EMPLOYEE.  76 F.SUPP.  333.  THE COURT
OF APPEALS REVERSED.  170 F.2D 469.  THIS COURT GRANTED CERTIORARI. 
336 U.S. 960.  AFFIRMED, P. 383. 

IN NO. 36, THE COURT OF APPEALS AFFIRMED A JUDGMENT AGAINST THE
UNITED STATES UNDER THE TORT CLAIMS ACT IN FAVOR OF AN INSURER WHO HAD
PARTIALLY REIMBURSED AN INSURED WHOSE PROPERTY HAD BEEN DAMAGED THROUGH
THE NEGLIGENCE OF A GOVERNMENT EMPLOYEE.  THIS COURT GRANTED
CERTIORARI.  336 U.S. 960.  AFFIRMED, P. 383. 

IN NOS. 37 AND 38, A DISTRICT COURT DISMISSED COMPLAINTS AGAINST THE
UNITED STATES UNDER THE TORT CLAIMS ACT BROUGHT BY TWO INSURERS WHICH
HAD REIMBURSED AN INSURED FOR PROPERTY DAMAGES RESULTING FROM
NEGLIGENCE OF A GOVERNMENT EMPLOYEE.  THE COURT OF APPEALS REVERSED. 
171 F.2D 374.  THIS COURT GRANTED CERTIORARI.  336 U.S. 960.  AFFIRMED,
P. 383. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THESE CASES, HERE ON CERTIORARI, PRESENT THIS IMPORTANT QUESTION
UNDER THE FEDERAL TORT CLAIMS ACT:  FN1  MAY AN INSURANCE COMPANY BRING
SUIT IN ITS OWN NAME AGAINST THE UNITED STATES UPON A CLAIM TO WHICH IT
HAS BECOME SUBROGATED BY PAYMENT TO AN INSURED WHO WOULD HAVE BEEN ABLE
TO BRING SUCH AN ACTION?  THAT QUESTION, IN TURN, REQUIRES OUR
CONSIDERATION OF R.S. 3477, THE "ANTI-ASSIGNMENT" STATUTE.  FN2 

THREE CASES, EACH PRESENTING A SLIGHTLY DIFFERENT ASPECT OF THE
PROBLEM, WERE HEARD BY THE COURT.  IN NO. 35, THE COMPLAINT ALLEGES
THAT AN EMPLOYEE OF THE FEDERAL RESERVE BANK OF NEW YORK WAS INJURED AS
A RESULT OF THE NEGLIGENCE OF A UNITED STATES POST OFFICE DEPARTMENT
EMPLOYEE.  RESPONDENT INSURANCE CARRIER HAD INSURED THE FEDERAL RESERVE
BANK AGAINST ITS LIABILITY FOR WORKMEN'S COMPENSATION, AND DULY PAID
THE INJURED PERSON'S CLAIM UNDER THE NEW YORK WORKMEN'S COMPENSATION
LAW.  THE COMPLAINT FURTHER ALLEGES THAT THE INJURED PERSON FAILED TO
COMMENCE ANY ACTION AGAINST THE UNITED STATES WITHIN ONE YEAR AFTER THE
ACCIDENT, AND THAT HIS INACTION OPERATED, ACCORDING TO NEW YORK LAW,
FN3  AS AN ASSIGNMENT TO THE INSURER OF HIS CAUSE OF ACTION AGAINST THE
UNITED STATES.  THE DISTRICT COURT DISMISSED THE COMPLAINT, 76 F.SUPP. 
333, BUT THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED AND
REMANDED THE CAUSE FOR TRIAL.  170 F.2D 469. 

IN NO. 36, THE GOVERNMENT'S MOTION TO DISMISS THE COMPLAINT WAS
DENIED, AND, AFTER TRIAL, IT WAS FOUND AS FACT THAT AN EMPLOYEE OF THE
UNITED STATES FOREST SERVICE HAD NEGLIGENTLY DRIVEN A GOVERNMENT
VEHICLE INTO A VEHICLE OWNED BY ONE HARDING, CAUSING DAMAGES OF
$1,484.50; THAT HARDING WAS INSURED BY THE RESPONDENT INSURANCE CARRIER
AND, PURSUANT TO THE TERMS OF THE POLICY, HAD BEEN PAID $784.50 BY THE
INSURER, TO WHICH IT WAS NOW SUBROGATED.  JUDGMENT WAS THEREUPON
ENTERED AGAINST THE UNITED STATES IN FAVOR OF HARDING FOR $700.00 AND
IN FAVOR OF RESPONDENT INSURANCE COMPANY FOR $784.50.  THE COURT OF
APPEALS FOR THE TENTH CIRCUIT AFFIRMED. 

NOS. 37 AND 38 PRESENT THE SITUATION IN WHICH TWO INSURANCE
COMPANIES, EACH OF WHICH HAS PAID PART OF A CLAIM OF LOSS OCCASIONED BY
THE NEGLIGENCE OF AN EMPLOYEE OF THE UNITED STATES, BRING SUITS IN
THEIR OWN NAMES, EACH ASKING RECOVERY OF THE AMOUNT IT HAS PAID TO THE
ASSURED.  THE DISTRICT COURT DISMISSED THE COMPLAINTS ON MOTION OF THE
GOVERNMENT, BUT THE COURT OF APPEALS FOR THE THIRD CIRCUIT REVERSED AND
REMANDED THE CAUSES.  171 F.2D 374. 

WE GRANTED CERTIORARI IN THESE CASES, 336 U.S. 960, BECAUSE OF A
CONFLICT OF DECISIONS IN THE CIRCUITS  FN4  AND THE MANIFEST IMPORTANCE
OF THE QUESTION. 

THE FEDERAL TORT CLAIMS ACT PROVIDES IN PERTINENT PART THAT 

"  ...  THE UNITED STATES DISTRICT COURT FOR THE DISTRICT WHEREIN THE
PLAINTIFF IS RESIDENT OR WHEREIN THE ACT OR OMISSION COMPLAINED OF
OCCURRED,  ...  SITTING WITHOUT A JURY, SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR, DETERMINE, AND RENDER JUDGMENT ON ANY CLAIM
AGAINST THE UNITED STATES, FOR MONEY ONLY,  ...  ON ACCOUNT OF DAMAGE
TO OR LOSS OF PROPERTY OR ON ACCOUNT OF 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 FOR SUCH DAMAGE, LOSS, INJURY, OR DEATH IN
ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE ACT OR OMISSION
OCCURRED.  SUBJECT TO THE PROVISIONS OF THIS CHAPTER, THE UNITED STATES
SHALL BE LIABLE IN RESPECT OF SUCH CLAIMS TO THE SAME CLAIMANTS, IN THE
SAME MANNER, AND TO THE SAME EXTENT AS A PRIVATE INDIVIDUAL UNDER LIKE
CIRCUMSTANCES  ...  "  FN5 

WHILE THE LANGUAGE OF THE ACT INDICATES A CONGRESSIONAL PURPOSE THAT
THE UNITED STATES BE TREATED AS IF IT WERE A PRIVATE PERSON IN RESPECT
OF TORTS COMMITTED BY ITS EMPLOYEES, EXCEPT FOR CERTAIN SPECIFIC
EXCEPTIONS ENUMERATED IN THE ACT,  FN6  NEITHER THE TERMS OF THE ACT
NOR ITS LEGISLATIVE HISTORY PRECLUDES THE APPLICATION OF R.S. 3477 IN
THIS SITUATION. 

IT IS THE GOVERNMENT'S POSITION THAT R.S. 3477, WHICH IN TERMS MAKES
"ALL TRANSFERS AND ASSIGNMENTS  ...  OF ANY CLAIM UPON THE UNITED
STATES, OR OF ANY PART OR SHARE THEREOF, OR INTEREST THEREIN  ...
ABSOLUTELY NULL AND VOID  ...  " EXCEPT FOR ASSIGNMENTS MADE AFTER
PAYMENT OF THE CLAIM AND IN ACCORDANCE WITH CERTAIN PRESCRIBED
SAFEGUARDS, INCLUDES ASSIGNMENTS BY OPERATION OF LAW AND PROHIBITS SUIT
BY THE SUBROGEE IN ITS OWN NAME.  PETITIONER READS R.S. 3477 NOT AS
PROHIBITING TRANSFER OF A CLAIMANT'S SUBSTANTIVE RIGHTS TO AN INSURER
SUBROGEE AND ULTIMATE RECOVERY BY THE INSURER BUT AS A PROCEDURAL
REQUIREMENT THAT THE INSURANCE CARRIER SUE AND RECOVER JUDGMENT IN THE
NAME OF THE ORIGINAL CLAIMANT.  UNITED STATES V. AMERICAN TOBACCO CO.,
166 U.S. 468(1897).  ITS PURPOSE IN INVOKING THE ANTI-ASSIGNMENT
STATUTE IS SAID TO BE TWO-FOLD:  "(1) TO INSURE THAT THE UNITED STATES
MAY AVOID INVOLVEMENT IN ANY LITIGATION AS TO THE EXISTENCE OR EXTENT
OF SUBROGATION OR OTHER ASSIGNMENT OF SUCH CLAIMS; AND (2) TO INSURE
THAT THE SUITS AND ANY JUDGMENTS AGAINST THE UNITED STATES WILL BE IN
THE NAMES OF THE ORIGINAL CLAIMANTS SO THAT THE UNITED STATES WILL BE
ABLE TO AVAIL ITSELF OF ITS STATUTORY RIGHTS IN RESPECT OF VENUE, AND
OF COUNTERCLAIM AND OFFSET ON ACCOUNT OF ANY CROSS-CLAIMS IT MAY HAVE
AGAINST THE ORIGINAL CLAIMANTS."  IT IS POINTED OUT THAT "THE
PROVISIONS OF THE STATUTE MAKING VOID AN ASSIGNMENT OR POWER OF
ATTORNEY BY A GOVERNMENT CONTRACTOR ARE FOR THE PROTECTION OF THE
GOVERNMENT.  HOBBS V. MCLEAN, 117 U.S. 567, 576; MCGOWAN V. PARISH, 237
U.S. 285, 294, 295.  IN THE ABSENCE OF SUCH A RULE, THE GOVERNMENT
WOULD BE IN DANGER OF BECOMING EMBROILED IN CONFLICTING CLAIMS, WITH
DELAY AND EMBARRASSMENT AND THE CHANCE OF MULTIPLE LIABILITY."  MARTIN
V. NATIONAL SURETY CO., 300 U.S. 588, 594(1937).  THE GOVERNMENT
CONTENDS THAT THE INCONVENIENCE, ADMINISTRATIVE AND ACCOUNTING
DIFFICULTIES, AND PROCEDURAL PROBLEMS WHICH, IT IS APPREHENDED, MAY
INVOLVE THE GOVERNMENT IF SUBROGEES ARE PERMITTED TO BRING SUITS UNDER
THE TORT CLAIMS ACT IN THEIR OWN NAMES MAKE THIS AN APT SITUATION FOR
APPLICATION OF R.S. 3477, AND THAT THAT WAS THE CONGRESSIONAL INTENT. 

IT SHOULD BE NOTED AT THE OUTSET, HOWEVER, THAT IN THE COURTS BELOW
AND UNTIL ARGUMENT IN THIS COURT (AND EVEN IN ITS PETITION FOR
CERTIORARI) THE GOVERNMENT CONTENDED THAT R.S. 3477 WAS A COMPLETE BAR
TO RECOVERY BY A SUBROGEE.  ONLY IN BRIEF AND ARGUMENT HERE WAS IT
SUGGESTED THAT THE INSURANCE CARRIER COULD RECOVER IF SUIT WAS BROUGHT
IN THE NAME OF THE INSURED TO THE USE OF THE INSURER, CITING FOR THE
FIRST TIME UNITED STATES V. AMERICAN TOBACCO CO., SUPRA, A DECISION
REFLECTING COMMON-LAW PROCEDURE, UPON WHICH RELIANCE IS NOW PLACED. 
FN7  IT IS FOR THAT REASON THAT THE OPINIONS BELOW WERE FOCUSED UPON
WHETHER R.S. 3477 IS AN ABSOLUTE BAR TO RECOVERY BY THE SUBROGEE RATHER
THAN MERELY A BAR TO RECOVERY IN THE NAME OF THE SUBROGEE.  WE THINK,
HOWEVER, THAT EVEN THIS LIMITED, AND SOMEWHAT ANOMALOUS,  FN8  RELIANCE
UPON R.S. 3477 IS UNTENABLE, FIRST, BECAUSE OF THE UNIFORM
INTERPRETATION GIVEN THAT STATUTE BY THIS COURT FOR THE PAST 75 YEARS,
AND, SECOND, BECAUSE OF MANY AFFIRMATIVE INDICATIONS OF CONGRESSIONAL
INTENT THAT SUBROGATION CLAIMS SHOULD NOT BE EXCLUDED FROM SUIT IN THE
NAME OF THE SUBROGEE UNDER THE TORT CLAIMS ACT. 

R.S. 3477 WAS ENACTED IN 1853 AS PART OF A STATUTE ENTITLED "AN ACT
TO PREVENT FRAUDS UPON THE TREASURY OF THE UNITED STATES."  FN9  ITS
PRIMARY PURPOSE WAS UNDOUBTEDLY TO PREVENT PERSONS OF INFLUENCE FROM
BUYING UP CLAIMS AGAINST THE UNITED STATES, WHICH MIGHT THEN BE
IMPROPERLY URGED UPON OFFICERS OF THE GOVERNMENT.  FN10  SPOFFORD V.
KIRK, 97 U.S. 484, 490(1878).  ANOTHER PURPOSE, THAT UPON WHICH THE
GOVERNMENT NOW RELIES, HAS BEEN INFERRED BY THIS COURT FROM THE
LANGUAGE OF THE STATUTE.  THAT PURPOSE WAS TO PREVENT POSSIBLE MULTIPLE
PAYMENT OF CLAIMS, TO MAKE UNNECESSARY THE INVESTIGATION OF ALLEGED
ASSIGNMENTS, AND TO ENABLE THE GOVERNMENT TO DEAL ONLY WITH THE
ORIGINAL CLAIMANT.  SPOFFORD V. KIRK, SUPRA; GOODMAN V. NIBLACK, 102
U.S. 556, 560(1881).  MOST OF THE EARLY CASES CONSTRUED THE STATUTE
STRICTLY, HOLDING THAT ALL ASSIGNMENTS WERE INCLUDED WITHIN THE STATUTE
AND THAT SUCH ASSIGNMENTS CONFERRED NO RIGHTS OF ANY KIND UPON THE
ASSIGNEE; THAT R.S. 3477 "INCAPACITATES EVERY CLAIMANT UPON THE
GOVERNMENT FROM CREATING AN INTEREST IN THE CLAIM IN ANY OTHER THAN
HIMSELF."  SPOFFORD V. KIRK, SUPRA, PP. 488-89.  SEE ALSO NATIONAL BANK
OF COMMERCE V. DOWNIE, 218 U.S. 345(1910); NUTT V. KNUT, 200 U.S.
12(1906); ST. PAUL & DULUTH R. CO. V. UNITED STATES, 112 U.S.
733(1885). 

THE RIGOR OF THIS RULE WAS VERY EARLY RELAXED IN CASES WHICH WERE
THOUGHT NOT TO BE PRODUCTIVE OF THE EVILS WHICH THE STATUTE WAS
DESIGNED TO OBVIATE.  AND ONE OF THE FIRST SUCH EXCEPTIONS WAS TO
TRANSFERS BY OPERATION OF LAW.  IN UNITED STATES V. GILLIS, 95 U.S.
407(1877), THE COURT HELD THAT A PROVISION IN THE ACT CREATING THE
COURT OF CLAIMS THAT SUITS ON ASSIGNMENTS MAY BE BROUGHT IN THE NAME OF
THE ASSIGNEE DID NOT MEAN THAT R.S. 3477 WAS INAPPLICABLE TO SUITS IN
THE COURT OF CLAIMS, BUT REFERRED TO CLAIMS WHICH WERE EXCEPTED FROM
THE PROHIBITION OF THAT STATUTE, SUCH AS "DEVOLUTIONS OF TITLE BY FORCE
OF LAW, WITHOUT ANY ACT OF PARTIES, OR INVOLUNTARY ASSIGNMENTS,
COMPELLED BY LAW."  DURING THE FOLLOWING TERM A CASE WAS PRESENTED IN
WHICH AN ASSIGNEE IN BANKRUPTCY HAD SUED THE UNITED STATES ON A CLAIM
OF THE BANKRUPT.  THIS COURT HELD THE SUIT MAINTAINABLE DESPITE R.S.
3477, ON THE GROUND THAT 

"THE ACT OF CONGRESS OF FEB. 26, 1853, TO PREVENT FRAUDS UPON THE
TREASURY OF THE UNITED STATES, WHICH WAS THE SUBJECT OF CONSIDERATION
IN THE GILLIS CASE, APPLIES ONLY TO CASES OF VOLUNTARY ASSIGNMENT OF
DEMANDS AGAINST THE GOVERNMENT.  IT DOES NOT EMBRACE CASES WHERE THERE
HAS BEEN A TRANSFER OF TITLE BY OPERATION OF LAW.  THE PASSING OF
CLAIMS TO HEIRS, DEVISEES, OR ASSIGNEES IN BANKRUPTCY ARE NOT WITHIN
THE EVIL AT WHICH THE STATUTE AIMED; NOR DOES THE CONSTRUCTION GIVEN BY
THIS COURT DENY TO SUCH PARTIES A STANDING IN THE COURT OF CLAIMS." 
ERWIN V. UNITED STATES, 97 U.S. 392, 397(1878). 

THIS CONSTRUCTION OF R.S. 3477 - THAT ASSIGNMENTS BY OPERATION OF LAW
ARE NOT WITHIN THE PROHIBITION OF THE STATUTE - WAS RECOGNIZED AS
SETTLED LAW IN GOODMAN V. NIBLACK, SUPRA, AND HAS BEEN REPEATED WITH
APPROVAL IN A GREAT MANY SUBSEQUENT CASES.  FN11 

THE GOVERNMENT NOW CONTENDS, CONTRARY TO THE STATEMENTS IN ALL OF THE
CASES APPROVING ERWIN V. UNITED STATES, SUPRA, THAT AN ASSIGNMENT BY
OPERATION OF LAW IS NOT ALWAYS EXEMPT FROM THE BAR OF R.S. 3477, BUT
THAT IN ADDITION THE ASSIGNMENT MUST BE OF A KIND THAT WILL NOT INVOLVE
THE GOVERNMENT IN THE PROCEDURAL DIFFICULTIES PREVIOUSLY REFERRED TO.
ALL OF THE CASES IN WHICH R.S. 3477 HAS BEEN HELD INAPPLICABLE ON THE
GROUND OF ASSIGNMENT BY OPERATION OF LAW ARE EXPLAINED AS PRESENTING
SITUATIONS IN WHICH THE GOVERNMENT COULD SUFFER NO SUCH PROCEDURAL
EMBARRASSMENTS.  IN CASES OF TRANSFER BY DESCENT (ERWIN V. UNITED
STATES, SUPRA), CONSOLIDATION OF CORPORATIONS (SEABOARD AIR LINE R. CO.
V. UNITED STATES, 256 U.S. 655(1921)), AND PURCHASE AT A JUDICIAL SALE
IN A CORPORATE REORGANIZATION (WESTERN PACIFIC R. CO. V. UNITED STATES,
268 U.S. 271(1925)) IT IS POINTED OUT THAT THE GOVERNMENT MAY DEAL WITH
THE SUBSTITUTED REPRESENTATIVE AS IT WOULD HAVE DEALT WITH THE CLAIMANT
IF THERE HAD BEEN NO SUBSTITUTION.  RIGHTS OF COUNTERCLAIM AND SET-OFF
ARE SAID TO BE RETAINED AGAINST THE UNIVERSAL SUCCESSOR, WHILE SUCH
UNIVERSAL ASSIGNMENTS BY OPERATION OF LAW CAN GIVE RISE TO NO
CONTROVERSIES AS TO THE EXISTENCE AND EXTENT OF THE TRANSFER FOR
ADJUDICATION BETWEEN THE UNITED STATES AND THE ORIGINAL CLAIMANT AND
HIS TRUSTEE, RECEIVER, OR ADMINISTRATOR.    WITHOUT CONSIDERING WHETHER
SOME OF THE CASES ARE NOT COMPREHENDED WITHIN THIS RATIONALE,  FN12 WE
DO NOT THINK THAT IT EXPLAINS THE EXCEPTION MADE FOR TRANSFERS BY
OPERATION OF LAW IN THE CASES REFERRED TO.  IN THE FIRST PLACE, THE
COURT HAS ALWAYS STATED THE FLAT EXCEPTION OF ALL TRANSFERS BY
OPERATION OF LAW, AS DISTINGUISHED FROM VOLUNTARY TRANSFERS.  IF THE
CASES REST UPON THE PREMISE ADVANCED BY THE GOVERNMENT, IT HAS NEVER
BEEN ARTICULATED IN THE OPINIONS.  IN THE SECOND PLACE, AND CONSISTENT
WITH THE EXCEPTION OF ALL TRANSFERS BY OPERATION OF LAW, THIS COURT HAS
A NUMBER OF TIMES INDICATED THAT NEITHER OF THE PURPOSES OF R.S. 3477
IS CONTRAVENED BY TRANSFERS BY OPERATION OF LAW.  IN GOODMAN V.
NIBLACK, SUPRA, IT WAS HELD THAT: 

"THE LANGUAGE OF THE STATUTE, 'ALL TRANSFERS AND ASSIGNMENTS OF ANY
CLAIM UPON THE UNITED STATES, OR OF ANY PART THEREOF, OR ANY INTEREST
THEREIN,' IS BROAD ENOUGH (IF SUCH WERE THE PURPOSE OF CONGRESS) TO
INCLUDE TRANSFERS BY OPERATION OF LAW, OR BY WILL.  YET WE HELD IT DID
NOT INCLUDE A TRANSFER BY OPERATION OF LAW, OR IN BANKRUPTCY, AND WE
SAID IT DID NOT INCLUDE ONE BY WILL.  THE OBVIOUS REASON OF THIS IS
THAT THERE CAN BE NO PURPOSE IN SUCH CASES TO HARASS THE GOVERNMENT BY
MULTIPLYING THE NUMBER OF PERSONS WITH WHOM IT HAS TO DEAL, NOR ANY
DANGER OF ENLISTING IMPROPER INFLUENCES IN ADVOCACY OF THE CLAIM, AND
THAT THE EXIGENCIES OF THE PARTY WHO HELD IT JUSTIFIED AND REQUIRED THE
TRANSFER THAT WAS MADE."  (102 U.S. AT 560.)  SEE ALSO HAGER V. SWAYNE,
149 U.S. 242, 247-48(1893). 

THE FACT THAT SOME ADMINISTRATIVE PROBLEMS MAY BE THE UNINTENDED BY
PRODUCTS OF AN INVOLUNTARY ASSIGNMENT WAS NOT THOUGHT TO BE AN EVIL
WITHIN THE SCOPE OF A STATUTE AIMED AT FRAUD AND HARASSMENT.  THAT
INTERPRETATION HAS, FOR NEARLY A CENTURY, EXEMPTED ALL TRANSFERS BY
OPERATION OF LAW FROM THE PROHIBITION OF R.S. 3477. 

THAT IT WAS THE UNDERSTANDING OF CONGRESS THAT SUBROGATION CLAIMS
WERE NOT WITHIN THE BAR OF R.S. 3477 WHEN IT PASSED THE TORT CLAIMS ACT
IS ABUNDANTLY CLEAR FROM A NUMBER OF DIFFERENT PARTICULARS: 

1.  THE SMALL TORT CLAIMS ACT OF 1922  FN13  PROVIDED THAT HEADS OF
DEPARTMENTS MAY "CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE ANY CLAIM
...  ON ACCOUNT OF DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY WHERE
THE AMOUNT OF THE CLAIM DOES NOT EXCEED $1,000, CAUSED BY THE
NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN
THE SCOPE OF HIS EMPLOYMENT."  SUCH CLAIMS AS WERE FOUND DUE WERE
CERTIFIED TO CONGRESS FOR PAYMENT.  A QUESTION WAS DIRECTED TO THE
ATTORNEY GENERAL IN 1932 AS TO "WHETHER SUCH A CLAIM, WHICH IF MADE BY
THE OWNER OF THE PROPERTY DAMAGED COULD HAVE BEEN CERTIFIED, MAY
PROPERLY BE CERTIFIED IF MADE BY AN INSURANCE COMPANY WHICH HAS BECOME
SUBROGATED TO THE RIGHTS OF THE OWNER TO RECEIVE COMPENSATION FOR THE
DAMAGE SUFFERED."  ATTORNEY GENERAL MITCHELL'S OPINION  FN14  WAS:  (1)
THAT SUBROGATION IS A TRANSFER BY OPERATION OF LAW OF THE RIGHT TO
RECEIVE PAYMENT OF THE AMOUNT DUE; AND (2) THAT R.S. 3477 APPLIES ONLY
TO CASES OF VOLUNTARY ASSIGNMENT OF DEMANDS AGAINST THE GOVERNMENT.  HE
THOUGHT, HOWEVER, THAT INASMUCH AS THE QUESTION WAS ONE CONCERNING THE
PURPOSE AND INTENT OF CONGRESS IN ENACTING THE SMALL TORT CLAIMS ACT,
THAT BODY SHOULD BE ASKED TO INTERPRET THE STATUTE BY PASSING UPON
SUBROGATION CLAIMS CERTIFIED TO IT AND EXPRESSLY CALLED TO ITS
ATTENTION.  THEREAFTER SUBROGATION CLAIMS IN THE NAMES OF INSURANCE
CARRIERS WERE REGULARLY SUBMITTED TO CONGRESS AND WERE CONSISTENTLY
APPROVED UNTIL THE ACT WAS REPEALED BY THE PRESENT TORT CLAIMS ACT. 
THE ATTORNEY GENERAL'S OPINION WAS APPROVED AND CONGRESSIONAL
ACQUIESCENCE NOTED BY THE COMPTROLLER GENERAL IN OPINIONS IN 19 COMP.
GEN. 503, 21 COMP. GEN. 341, AND 22 COMP. GEN. 611.  A UNIQUE
INTERPRETATION BY CONGRESS OF ITS OWN STATUTE THUS SETTLED THE QUESTION
WHETHER R.S. 3477 WAS A BAR TO SUBROGATION CLAIMS UNDER THE SMALL TORT
CLAIMS ACT, WHICH, IN LANGUAGE NEARLY IDENTICAL WITH THAT OF THE
PRESENT TORT CLAIMS ACT, PERMITTED RECOVERY "ON ACCOUNT OF DAMAGES TO
OR LOSS OF PRIVATELY OWNED PROPERTY  ...  " 

2.  THAT SPECIFIC REFERENCE IN THE STATUTE WAS NECESSARY TO PRECLUDE
RECOVERY BY SUBROGEES IN THEIR OWN NAMES (I.E., THAT R.S. 3477 IS
INAPPLICABLE TO SUBROGEES) WAS CLEARLY THE VIEW OF CONGRESS WHEN IT
ENACTED THE TORT CLAIMS ACT.  FOR IN FOREIGN CLAIMS LEGISLATION WHERE
IT INTENDED THAT RESULT, CONGRESS EXPLICITLY PROVIDED THAT CLAIMS
OFFICERS SHOULD CONSIDER, ASCERTAIN, DETERMINE, AND PAY CLAIMS ON
ACCOUNT OF INJURY OR DEATH, OR PROPERTY LOSS OR DAMAGE TO CLAIMANTS IN
FOREIGN COUNTRIES, "INCLUDING CLAIMS OF INSURED BUT EXCLUDING CLAIMS OF
SUBROGEES."  FN15  THE PURPOSE OF THIS PROVISION, WHICH WAS ENACTED IN
1943, WAS TO FULFILL THE VERY OFFICE WHICH PETITIONER NOW CONTENDS IS
PERFORMED BY R.S. 3477.  FN16  NO SUCH EXCEPTION IS FOUND IN THE TORT
CLAIMS ACT, ALTHOUGH OTHER EXCEPTIONS ARE SPELLED OUT WITH GREAT
PARTICULARITY.  THE SIGNIFICANCE OF THIS PROVISION IN THE FOREIGN
CLAIMS STATUTE IS, FIRST, THAT WHEN CONGRESS WISHED TO EXCLUDE CLAIMS
BY SUBROGEES IT SAID SO; AND SECOND, THAT CONGRESS DID NOT THINK R.S.
3477 PERFORMED THAT FUNCTION.  FOR A SIMILAR PROVISION, SEE 49 STAT.
2194.  FN17 

3. NOR DID EXECUTIVE DEPARTMENTS THEMSELVES INTERPRET R.S. 3477 AS
APPLICABLE TO SUBROGATION CLAIMS, AS THE REPORT OF THE HEARINGS ON H.R.
6442, 77TH CONG., 2D SESS. (1942) MAKES PLAIN.  THAT BILL, WHICH WAS
DRAFTED BY THE TREASURY DEPARTMENT, WOULD HAVE REQUIRED SUBROGEES TO
INSTITUTE ACTIONS AGAINST THEIR SUBROGORS IN SOME COURT OF COMPETENT
JURISDICTION, WHICH WOULD THEN RESTRAIN THE ORIGINAL CLAIMANT FROM
RECEIVING ANY FUNDS FROM THE GOVERNMENT UNTIL FINAL DECISION WAS
REACHED AS TO WHO WAS TO RECEIVE THE MONEY.  THE ASSISTANT GENERAL
COUNSEL OF THE TREASURY, IN EXPLAINING THE BILL, STATED: 

"IN 1877 THE SUPREME COURT, IN THE CASE OF U.S. V. GILLIS (95 U.S.
407), AFTER STATING IN EFFECT THAT SECTION 3477 WAS OF UNIVERSAL
APPLICATION AND COVERED ALL CLAIMS AGAINST THE UNITED STATES IN EVERY
TRIBUNAL IN WHICH THEY MIGHT BE ASSERTED, INDICATED IN LANGUAGE NOT
NECESSARY TO THE DECISION THAT TRANSFERS OR ASSIGNMENTS COMPELLED BY
LAW OR RESULTING FROM THE OPERATION OF LAW MIGHT NOT HAVE BEEN WITHIN
THE PURVIEW OF SECTION 3477. 

"NOW FROM THAT TIME ON ONE EXCEPTION AFTER ANOTHER HAS BEEN CARVED
FROM SECTION 3477, UNTIL NOW THE COURTS RECOGNIZE MANY TYPES OF ADVERSE
CLAIMS AS THE BASIS FOR WHAT IN EFFECT ARE THIRD-PARTY SUITS AGAINST
THE GOVERNMENT, INCLUDING SUITS BASED UPON ASSIGNMENTS BY OPERATION OF
LAW, SUBROGATION, AND EQUITABLE LIENS."  HEARINGS BEFORE SUBCOMMITTEE
NO. 3 OF THE HOUSE COMMITTEE ON THE JUDICIARY, ON H.R. 6442, 77TH
CONG., 2D SESS. (1942), AT P. 3. 

IT CANNOT THEREFORE BE SERIOUSLY CONTENDED THAT CONGRESS AND THE
EXECUTIVE DEPARTMENTS WERE NOT COGNIZANT OF THE EXEMPTION OF
SUBROGATION CLAIMS FROM R.S. 3477 WHEN THE TORT CLAIMS ACT WAS PASSED. 
THE BROAD SWEEP OF ITS LANGUAGE ASSUMING THE LIABILITY OF A PRIVATE
PERSON, THE PURPOSE OF CONGRESS TO RELIEVE ITSELF OF CONSIDERATION OF
PRIVATE CLAIMS, AND THE FACT THAT SUBROGATION CLAIMS MADE UP A
SUBSTANTIAL PART OF THAT BURDEN ARE ALSO PERSUASIVE THAT CONGRESS DID
NOT INTEND THAT SUCH CLAIMS SHOULD BE BARRED. 

IF, THEN, R.S. 3477 IS INAPPLICABLE, THE GOVERNMENT MUST DEFEND SUITS
BY SUBROGEES AS IF IT WERE A PRIVATE PERSON.  RULE 17(A) OF THE FEDERAL
RULES OF CIVIL PROCEDURE, WHICH WERE SPECIFICALLY MADE APPLICABLE TO
TORT CLAIMS LITIGATION,  FN18  PROVIDES THAT "EVERY ACTION SHALL BE
PROSECUTED IN THE NAME OF THE REAL PARTY IN INTEREST," AND OF COURSE AN
INSURER-SUBROGEE, WHO HAS SUBSTANTIVE EQUITABLE RIGHTS, QUALIFIES AS
SUCH.  IF THE SUBROGEE HAS PAID AN ENTIRE LOSS SUFFERED BY THE INSURED,
IT IS THE ONLY REAL PARTY IN INTEREST AND MUST SUE IN ITS OWN NAME.  3
MOORE, FEDERAL PRACTICE (2D ED.)  P. 1339.  IF IT HAS PAID ONLY PART OF
THE LOSS, BOTH THE INSURED AND INSURER (AND OTHER INSURERS, IF ANY, WHO
HAVE ALSO PAID PORTIONS OF THE LOSS) HAVE SUBSTANTIVE RIGHTS AGAINST
THE TORTFEASOR WHICH QUALIFY THEM AS REAL PARTIES IN INTEREST. 

IN CASES OF PARTIAL SUBROGATION THE QUESTION ARISES WHETHER SUIT MAY
BE BROUGHT BY THE INSURER ALONE, WHETHER SUIT MUST BE BROUGHT IN THE
NAME OF THE INSURED FOR HIS OWN USE AND FOR THE USE OF THE INSURANCE
COMPANY, OR WHETHER ALL PARTIES IN INTEREST MUST JOIN IN THE ACTION. 
UNDER THE COMMON-LAW PRACTICE RIGHTS ACQUIRED BY SUBROGATION COULD BE
ENFORCED IN AN ACTION AT LAW ONLY IN THE NAME OF THE INSURED TO THE
INSURER'S USE, HALL & LONG V. RAILROAD COMPANIES, 13 WALL.  367(1872);
UNITED STATES V. AMERICAN TOBACCO CO., SUPRA, AS WAS ALSO TRUE OF SUITS
ON ASSIGNMENTS, GLENN V. MARBURY, 145 U.S. 499(1892).  MR. JUSTICE
STONE CHARACTERIZED THIS RULE AS "A VESTIGE OF THE COMMON LAW'S
RELUCTANCE TO ADMIT THAT A CHOSE IN ACTION MAY BE ASSIGNED, (WHICH) IS
TODAY BUT A FORMALITY WHICH HAS BEEN WIDELY ABOLISHED BY LEGISLATION." 
AETNA LIFE INS. CO. V. MOSES, 287 U.S. 530, 540(1933).  UNDER THE
FEDERAL RULES, THE "USE" PRACTICE IS OBVIOUSLY UNNECESSARY, AS HAS LONG
BEEN TRUE IN EQUITY, GARRISON V. MEMPHIS INSURANCE CO., 19 HOW. 
312(1857), AND ADMIRALTY, LIVERPOOL & GREAT WESTERN STEAM CO. V. PHENIX
INSURANCE CO., 129 U.S. 397, 462(1889).  RULE 17(A) WAS TAKEN ALMOST
VERBATIM FROM EQUITY RULE 37.  NO REASON APPEARS WHY SUCH A PRACTICE
SHOULD NOW BE REQUIRED IN CASES OF PARTIAL SUBROGATION, SINCE BOTH
INSURED AND INSURER "OWN" PORTIONS OF THE SUBSTANTIVE RIGHT AND SHOULD
APPEAR IN THE LITIGATION IN THEIR OWN NAMES. 

ALTHOUGH EITHER PARTY MAY SUE, THE UNITED STATES, UPON TIMELY MOTION,
MAY COMPEL THEIR JOINDER.  DELAWARE COUNTY V. DIEBOLD SAFE & LOCK CO.,
133 U.S. 473, 488(1890)(APPLYING A STATE CODE UNDER THE CONFORMITY
ACT).  3 MOORE, FEDERAL PRACTICE (2D ED.)  P. 1348.  BOTH ARE
"NECESSARY" PARTIES.  RULE 19(B), FEDERAL RULES OF CIVIL PROCEDURE. 
FN19  THE PLEADINGS SHOULD BE MADE TO REVEAL AND ASSERT THE ACTUAL
INTEREST OF THE PLAINTIFF, AND TO INDICATE THE INTERESTS OF ANY OTHERS
IN THE CLAIM.  ADDITIONAL PARTIES MAY BE ADDED AT ANY STAGE OF THE
PROCEEDINGS, ON MOTION OF THE UNITED STATES, UPON SUCH TERMS AS MAY BE
JUST.  RULE 21. 

IT IS TRUE THAT UNDER THIS RATIONALE, THERE WILL BE CASES IN WHICH
ALL PARTIES CANNOT BE JOINED BECAUSE ONE OR MORE ARE OUTSIDE THE
JURISDICTION, AND THE COURT MAY NEVERTHELESS PROCEED IN THE ACTION
UNDER RULE 19(B).  IN SUCH CASES THE UNITED STATES, LIKE OTHER
TORTFEASORS, MAY HAVE TO DEFEND TWO OR MORE ACTIONS ON THE SAME TORT
AND MAY BE UNABLE TO ASSERT COUNTERCLAIMS AND OFFSETS AGAINST THE
ORIGINAL CLAIMANT UPON UNRELATED TRANSACTIONS.  FN20 

IF R.S. 3477 IS INAPPLICABLE, AS WE THINK IS CLEARLY THE CASE, THESE
OBJECTIONS HAVE NO LEGAL FOUNDATION UPON WHICH TO REST.  IN ARGUMENT
BEFORE A NUMBER OF DISTRICT COURTS AND COURTS OF APPEALS, THE
GOVERNMENT RELIED UPON THE DOCTRINE THAT STATUTES WAIVING SOVEREIGN
IMMUNITY MUST BE STRICTLY CONSTRUED.  WE THINK THAT THE CONGRESSIONAL
ATTITUDE IN PASSING THE TORT CLAIMS ACT IS MORE ACCURATELY REFLECTED BY
JUDGE CARDOZO'S STATEMENT IN ANDERSON V. HAYES CONSTRUCTION CO., 243
N.Y. 140, 147, 153 N.E. 28, 29-30:  "THE EXEMPTION OF THE SOVEREIGN
FROM SUIT INVOLVES HARDSHIP ENOUGH WHERE CONSENT HAS BEEN WITHHELD.  WE
ARE NOT TO ADD TO ITS RIGOR BY REFINEMENT OF CONSTRUCTION WHERE CONSENT
HAS BEEN ANNOUNCED." 

THE DECISION OF THE COURT OF APPEALS IN EACH OF THESE CASES IS
AFFIRMED. 

FN1  60 STAT. 842; FORMERLY CODIFIED AS 28 U.S.C. SEC. 931 ET SEQ.
THE NEW JUDICIAL CODE BECAME EFFECTIVE ON SEPT. 1, 1948, WHILE THESE
ACTIONS WERE PENDING ON APPEAL, AND THE PROVISIONS FORMERLY EMBODIED IN
THE TORT CLAIMS ACT ARE NOW DISTRIBUTED THROUGH VARIOUS CHAPTERS OF THE
NEW CODE. 

FN2  10 STAT. 170 AS AMENDED; 31 U.S.C. SEC. 203. 

FN3  WHEN THIS ACTION WAS BROUGHT, SEC. 29 OF THE NEW YORK WORKMEN'S
COMPENSATION ACT PROVIDED THAT IF AN INJURED EMPLOYEE HAS TAKEN
COMPENSATION BUT HAS FAILED TO COMMENCE ACTION AGAINST THE TORTFEASOR
WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUED, "SUCH FAILURE SHALL
OPERATE AS AN ASSIGNMENT OF THE CAUSE OF ACTION AGAINST SUCH OTHER  ...
TO THE PERSON, ASSOCIATION, CORPORATION, OR INSURANCE CARRIER LIABLE
FOR THE PAYMENT OF SUCH COMPENSATION." 

FN4  COURTS OF APPEALS IN SEVEN CIRCUITS HAVE UPHELD THE RIGHT OF
SUBROGEES TO SUE UNDER THE TORT CLAIMS ACT.  STATE FARM MUTUAL
LIABILITY INSURANCE CO. V. UNITED STATES, 1ST CIR., 172 F.2D 737; AETNA
CASUALTY & SURETY CO. V. UNITED STATES, 2D CIR., 170 F.2D 469;
YORKSHIRE INSURANCE CO. V. UNITED STATES, 3D CIR., 171 F.2D 374; UNITED
STATES V. SOUTH CAROLINA STATE HIGHWAY DEPT., 4TH CIR., 171 F.2D 893;
OLD COLONY INSURANCE CO. V. UNITED STATES, 6TH CIR., 168 F.2D 931;
NATIONAL AMERICAN FIRE INSURANCE CO. V. UNITED STATES, 9TH CIR., 171
F.2D 206; UNITED STATES V. CHICAGO, R.I. & P.R. CO., 10TH CIR., 171
F.2D 377. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REACHED A CONTRARY
CONCLUSION, UNITED STATES V. HILL, 171 F.2D 404, JUDGE HUTCHESON
DISSENTING.  REARGUMENT WAS ORDERED BEFORE THE FULL BENCH AND, UPON
RECONSIDERATION, THE ORIGINAL OPINION WAS MODIFIED, 174 F.2D 61, JUDGE
HUTCHESON CONCURRING IN THE RESULT "AS IN SUBSTANTIAL ACCORDANCE WITH
THE VIEWS THE DISSENT EXPRESSED." 

FN5  FORMERLY 28 U.S.C. SEC. 931.  THIS SECTION IS NOW DIVIDED AND,
WITH IMMATERIAL CHANGES, APPEARS IN 28 U.S.C. SECS. 1346(B) AND 2674. 
FN6  SEE 28 U.S.C. SEC. 2680. 

FN7  THIS CONTENTION WAS ALSO MADE IN REARGUMENT OF UNITED STATES V.
HILL, BEFORE THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, WHICH TOOK
PLACE AFTER CERTIORARI WAS GRANTED BY THIS COURT.  SEE NOTE 4. 

FN8  PETITIONER'S ARGUMENT IS, IN EFFECT, THAT R.S. 3477 DOES NOT
PREVENT THE ASSIGNMENT OF SUBSTANTIVE RIGHTS AGAINST THE UNITED STATES
BUT MERELY CONTROLS THE METHOD OF PROCEDURE BY WHICH THE ASSIGNEE MAY
RECOVER.  THIS POSITION IS IN SQUARE CONFLICT WITH SPOFFORD V. KIRK, 97
U.S. 484, AND IS NOT JUSTIFIED BY ANYTHING SAID IN MARTIN V. NATIONAL
SURETY CO., 300 U.S. 588.  FURTHERMORE, IT WOULD REQUIRE THAT THE REAL
PARTY IN INTEREST PROVISIONS OF THE FEDERAL RULES OF CIVIL PROCEDURE,
RULE 17(A), BE DISREGARDED, DESPITE THE FACT THAT THEY ARE MADE
SPECIFICALLY APPLICABLE TO SUITS UNDER THE TORT CLAIMS ACT, AND THAT
SUITS AGAINST THE GOVERNMENT IN WHICH A SUBROGEE OWNS THE SUBSTANTIVE
RIGHT BE CONDUCTED ACCORDING TO THE OLD COMMON-LAW PROCEDURES IN EFFECT
PRIOR TO THE PROMULGATION OF THE FEDERAL RULES.  PETITIONER ADMITS AS
MUCH BY ITS RELIANCE UPON UNITED STATES V. AMERICAN TOBACCO CO., 166
U.S. 468.  THIS IS NOT TO SAY THAT R.S. 3477 WAS "REPEALED" BY THE
FEDERAL RULES, BUT THAT A NEW INTERPRETATION OF THE STATUTE WHICH IS
INCOMPATIBLE WITH THE RULES, AS EXPRESSLY INCORPORATED IN THE TORT
CLAIMS ACT, MUST BE CLEARLY JUSTIFIED. 

FN9  10 STAT. 170. 

FN10  OTHER SECTIONS OF THE ACT MADE IT UNLAWFUL FOR OFFICERS OF THE
UNITED STATES OR MEMBERS OF CONGRESS TO HAVE ANY INTEREST IN CLAIMS
AGAINST THE GOVERNMENT OR TO ACT FOR CLAIMANTS, PENALIZED BRIBERY OR
UNDUE INFLUENCING OF MEMBERS OF CONGRESS, AND PROHIBITED THE
DESTRUCTION OR WITHDRAWAL OF PUBLIC RECORDS. 

FN11  SEE, E.G., ST. PAUL & DULUTH R. CO. V. UNITED STATES, 112 U.S.
733, 736; BUTLER V. GORELEY, 146 U.S. 303, 311; HAGER V. SWAYNE, 149
U.S. 242; BALL V. HALSELL, 161 U.S. 72, 79; PRICE V. FORREST, 173 U.S.
410, 421; NATIONAL BANK OF COMMERCE V. DOWNIE, 218 U.S. 345, 356;
WESTERN PACIFIC R. CO. V. UNITED STATES, 268 U.S. 271, 275. 

FN12  FOR EXAMPLE, TRANSFERS BY WILL OR INTESTACY, WHICH ARE NOT
WITHIN THE PROHIBITION OF R.S. 3477 UNDER THE CASES, WOULD OBVIOUSLY
MULTIPLY THE PERSONS WITH WHOM THE UNITED STATES MUST DEAL AND MIGHT
VERY WELL EMBROIL IT IN CONFLICTING CLAIMS. 

FN13  42 STAT. 1066, 31 U.S.C. SEC. 215. 

FN14  REPORTED AT 36 OP. ATTY. GEN. 553.  SEE HOLTZOFF, HANDLING OF
TORT CLAIMS AGAINST THE FEDERAL GOVERNMENT, 9 LAW & CONTEMP.  PROB. 
311, 318; THE FEDERAL TORT CLAIMS ACT, 42 ILL. L. REV. 344, 349. 

FN15  57 STAT. 66, 31 U.S.C. SEC. 224D. 

FN16  THE HOUSE COMMITTEE REPORT STATES THAT "SUCH A PROVISION OF LAW
LEAVES UNDISTURBED, AS BETWEEN THE PARTIES, THE RIGHTS OF THE INSURED
AND OF INSURANCE COMPANIES AND OTHERS WHO HAVE BECOME SUBROGATED TO THE
RIGHTS OF THE OWNERS OF THE PROPERTY OR OF THE PERSON WHO IS INJURED OR
WHOSE DEATH RESULTS, BUT PERMITS THE GOVERNMENT TO SETTLE WITH A SINGLE
CLAIMANT AND WITHOUT THE NECESSITY OF INQUIRY INTO, OR DETERMINATION
OF, THE RELATIVE RIGHTS OF THE PARTIES."  H.R. REP. NO. 312, 78TH
CONG., 1ST SESS., P. 2. 

FN17  THAT MEMBERS OF THE HOUSE COMMITTEE ON CLAIMS WERE AWARE OF THE
PROBLEM OF RECOVERY BY INSURANCE CARRIER-SUBROGEES AT THE TIME THE TORT
CLAIMS ACT WAS PASSED IS DEMONSTRATED BY THAT COMMITTEE'S REPORT,
SUBMITTED LESS THAN TWO WEEKS PRIOR TO PASSAGE OF THE ACT, ON
SUBROGATION CLAIMS PRESENTED BY INSURANCE COMPANIES IN CONNECTION WITH
THE CRASH OF AN ARMY AIRPLANE INTO THE EMPIRE STATE BUILDING.  THE WAR
DEPARTMENT HAD RECOMMENDED TO CONGRESS THAT EMPIRE STATE, INC., AND
OTHER PRIVATE CLAIMANTS BE PAID THEIR UNINSURED LOSSES (WHICH WAS DONE)
BUT REFUSED TO RECOMMEND PAYMENT OF INSURED LOSSES.  H.R. 6683 WAS
INTRODUCED "TO APPROPRIATE THE SUM OF $143,279.94 TO 22 FIRE-INSURANCE
COMPANIES IN FULL SATISFACTION OF THEIR SUBROGATION CLAIMS AGAINST THE
UNITED STATES  ...  "  THE COMMITTEE MADE SPECIFIC REFERENCE TO
ATTORNEY GENERAL MITCHELL'S OPINION, NOTED THAT SINCE THAT TIME THE WAR
DEPARTMENT HAD PAID SUBROGATION CLAIMS OF LESS THAN $1,000 UNDER THE
MILITARY CLAIMS ACT, 31 U.S.C. SEC. 223, AND DISAPPROVED THAT
DEPARTMENT'S REFUSAL TO CERTIFY CLAIMS OF OVER $1,000.  TO THE
ASSERTION THAT CONGRESS HAD CONSISTENTLY REFUSED TO RECOGNIZE
SUBROGATION CLAIMS AS BARRED BY R.S. 3477, THE COMMITTEE REPORT
CONTAINS THE FLAT DENIAL:  "THAT STATEMENT IS NOT IN ACCORDANCE WITH
THE FACT" AND CITES A NUMBER OF SUBROGATION CLAIMS FAVORABLY ACTED UPON
BY CONGRESS.  THE BILL WAS FAVORABLY REPORTED, H.R. REP. NO. 2655, 79TH
CONG., 2D SESS., BUT NINE DAYS LATER THE TORT CLAIMS ACT WAS PASSED,
SEC. 131 OF WHICH PROVIDED THAT NO PRIVATE BILL SHOULD AUTHORIZE
PAYMENT OF MONEY FOR CLAIMS FOR WHICH SUIT MIGHT BE BROUGHT UNDER THAT
ACT, EXTENDING RETROACTIVELY TO CLAIMS ACCRUING AFTER JANUARY 1, 1945. 
SINCE THE CLAIMS INVOLVED HAD ACCRUED SUBSEQUENT TO THAT DATE, THE
INSURANCE COMPANY SUBROGEES BROUGHT SUIT IN A FEDERAL DISTRICT COURT,
WHERE THE GOVERNMENT ONCE MORE INTERPOSED A DEFENSE BASED ON R.S. 3477,
DESPITE THE COMMITTEE'S SPECIFIC APPROVAL OF PAYMENT DIRECTLY TO THE
SUBROGEES.  THE DEFENSE WAS REJECTED.  NIAGARA FIRE INS. CO. V. UNITED
STATES, 76 F.SUPP.  850. 

FN18  FORMERLY 28 U.S.C. SEC. 932.  SEE NOTE 8, SUPRA. 

FN19  THEY ARE CLEARLY NOT "INDISPENSABLE" PARTIES UNDER THE FAMILIAR
TEST OF SHIELDS V. BARROW, 17 HOW.  130, 139(1855), THAT SUCH PARTIES
HAVE "AN INTEREST OF SUCH A NATURE THAT A FINAL DECREE CANNOT BE MADE
WITHOUT EITHER AFFECTING THAT INTEREST, OR LEAVING THE CONTROVERSY IN
SUCH A CONDITION THAT ITS FINAL TERMINATION MAY BE WHOLLY INCONSISTENT
WITH EQUITY AND GOOD CONSCIENCE."  SEE DELAWARE COUNTY V. DIEBOLD SAFE
& LOCK CO., 133 U.S. 473, 488(1890); HUBBARD V. MANHATTAN TRUST CO., 87
F. 51; ROGERS V. PENOBSCOT MINING CO., 154 F. 606; 3 MOORE, FEDERAL
PRACTICE (2D ED.)  P. 2178. 

FN20  THE COUNTERCLAIM STATUTE, 28 U.S.C. SEC. 1346(C), CONFERS
JURISDICTION ON DISTRICT COURTS OVER ANY "COUNTERCLAIM, OR OTHER CLAIM
OR DEMAND WHATEVER ON THE PART OF THE UNITED STATES AGAINST ANY
PLAINTIFF COMMENCING AN ACTION."  THE OFFSET STATUTE, 31 U.S.C. SECS.
71, 227, DIRECTS THE DEDUCTION FROM JUDGMENTS AND ALLOWED CLAIMS
AGAINST THE UNITED STATES OF DEBTS AS TO WHICH "THE PLAINTIFF THEREIN
SHALL BE INDEBTED TO THE UNITED STATES."  (ITALICS ADDED.)  WE NEED NOT
AND DO NOT CONSIDER WHAT RIGHTS OF COUNTERCLAIM AND SET-OFF MAY LIE IN
THE UNITED STATES IN SUITS BROUGHT BY INSURER-SUBROGEES.  CF. UNITED
STATES V. MUNSEY TRUST CO., 332 U.S. 234(1947); DEFENSE SUPPLIES CORP.
V. UNITED STATES LINES CO., 148 F.2D 311. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






O'DONNELL V. ELGIN, J. & E.R. CO., 338 U.S. 384 


NO. 56.  ARGUED OCTOBER 21, 1949.  - DECIDED DECEMBER 12, 1949.  - 171
F.2D 973, REVERSED. 


IN AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT TO RECOVER
DAMAGES FOR A DEATH CLAIMED TO HAVE BEEN PROXIMATELY CAUSED BY THE
BREAKING OF AN AUTOMATIC COUPLER, THE COMPLAINT MINGLED IN A SINGLE
CAUSE OF ACTION CHARGES OF GENERAL NEGLIGENCE AND A SPECIFIC CHARGE
THAT DEFENDANT "CARELESSLY AND NEGLIGENTLY" VIOLATED THE SAFETY
APPLIANCE ACT BY OPERATING A CAR NOT EQUIPPED WITH THE PRESCRIBED
COUPLER.  THE TRIAL COURT DENIED PLAINTIFF'S REQUEST FOR INSTRUCTIONS
THAT THE BREAKING OF THE COUPLER WAS NEGLIGENCE PER SE AND SUBMITTED
THE WHOLE CASE TO THE JURY INDISCRIMINATELY AS A NEGLIGENCE CASE.  THE
JURY FOUND FOR DEFENDANT.  HELD:  AS TO THE CLAIM BASED ON THE SAFETY
APPLIANCE ACT, PLAINTIFF WAS ENTITLED TO A PEREMPTORY INSTRUCTION THAT
TO EQUIP A CAR WITH A COUPLER WHICH BROKE IN A SWITCHING OPERATION WAS
A VIOLATION OF THE ACT, WHICH RENDERED DEFENDANT LIABLE FOR INJURIES
PROXIMATELY RESULTING THEREFROM, AND THAT NEITHER EVIDENCE OF
NEGLIGENCE NOR OF DILIGENCE AND CARE WAS TO BE CONSIDERED ON THE
QUESTION OF THIS LIABILITY.  PP. 385-394. 

(A) THE SAFETY APPLIANCE ACT REQUIRES COUPLERS, WHICH, AFTER A SECURE
COUPLING IS EFFECTED, WILL REMAIN COUPLED UNTIL SET FREE BY SOME
PURPOSEFUL ACT OF CONTROL.  PP. 387-389. 

(B)  A FAILURE OF EQUIPMENT TO PERFORM AS REQUIRED BY THE SAFETY
APPLIANCE ACT IS IN ITSELF AN ACTIONABLE WRONG, IN NO WAY DEPENDENT
UPON NEGLIGENCE AND FOR THE PROXIMATE RESULTS OF WHICH THERE IS
LIABILITY THAT CANNOT BE ESCAPED BY PROOF OF CARE OR DILIGENCE.  PP.
389-392. 

(C)  PLEADINGS WILL SERVE THEIR PURPOSE OF SHARPENING AND LIMITING
THE ISSUES ONLY IF CLAIMS BASED ON NEGLIGENCE ARE SET FORTH SEPARATELY
FROM THOSE BASED ON VIOLATION OF THE SAFETY APPLIANCE ACT.  P. 392. 

(D)  EVEN THOUGH NO OBJECTION BE MADE TO AN IMPROPER PLEADING IN A
CASE SUCH AS THIS, IT IS ALMOST INDISPENSABLE TO AN INTELLIGIBLE CHARGE
TO THE JURY THAT A CLEAR SEPARATION BETWEEN CLAIMS BASED ON NEGLIGENCE
AND THOSE BASED ON VIOLATION OF THE SAFETY APPLIANCE ACT BE OBSERVED
AND IMPRESSED.  P. 393. 

(E)  EVIDENCE PERTINENT TO NEGLIGENCE IS IMMATERIAL TO ISSUES RAISED
BY A CLAIM BASED ON VIOLATION OF THE SAFETY APPLIANCE ACT.  PP. 393
394. 

O'DONNELL, ADMINISTRATRIX, V. ELGIN, JOLIET & EASTERN RAILWAY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

THE COURT OF APPEALS AFFIRMED A JUDGMENT FOR THE DEFENDANT IN AN
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  171 F.2D 973.  THIS
COURT GRANTED CERTIORARI.  337 U.S. 929.  REVERSED, P. 394. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT,
45 U.S.C. SECS. 51-60.  THE COMPLAINT MINGLED IN A SINGLE COUNT OR
CAUSE OF ACTION CHARGES OF GENERAL NEGLIGENCE AND A SPECIFIC CHARGE
THAT DEFENDANT "CARELESSLY AND NEGLIGENTLY" VIOLATED THE SAFETY
APPLIANCE ACT, 45 U.S.C. SEC. 2, BY OPERATING A CAR NOT EQUIPPED WITH
THE PRESCRIBED COUPLER.  THE JURY FOUND AGAINST PLAINTIFF AND JUDGMENT
FOR DEFENDANT WAS AFFIRMED BY THE COURT OF APPEALS.  171 F.2D 973. 
THIS RESULT MUST STAND IF THE JURY WAS PROPERLY INSTRUCTED, AS TO WHICH
THE COURT OF APPEALS DIVIDED. 

O'DONNELL, WHOSE ADMINISTRATRIX IS PETITIONER HERE AND WAS PLAINTIFF
BELOW, MET AN UNWITNESSED DEATH WHILE WORKING IN DEFENDANT'S YARDS AS A
MEMBER OF ITS SWITCHING CREW.  WHEN LAST SEEN, HE WAS GOING TO ADJUST
THE COUPLERS ON CERTAIN CARS WHICH PREVIOUSLY HAD FAILED TO COUPLE BY
IMPACT.  SHORTLY AFTER HIS DEPARTURE, AS THE RESULT OF THE BREAKING OF
A COUPLER, TWO CARS BROKE LOOSE FROM A CUT OF CARS THAT WAS BEING MOVED
IN A SWITCHING OPERATION.  RUNNING FREE, THEY COLLIDED WITH OTHER
STANDING CARS AND DROVE THEM AGAINST THOSE WHOSE COUPLERS DECEDENT HAD
SAID HE WAS GOING TO ADJUST.  SOME TIME LATER DECEDENT'S MANGLED BODY
WAS FOUND LYING ACROSS ONE RAIL OF THE TRACK ON WHICH THE CARS HE HAD
INTENDED TO PREPARE FOR COUPLING HAD STOOD.  THAT HE HAD GONE BETWEEN
THEM TO ADJUST THE COUPLERS IS SUGGESTED BY THE FACT THAT THEY COUPLED
UPON IMPACT WITH THE COLLIDING CARS, THOUGH THEY PREVIOUSLY HAD FAILED
SO TO DO.  PETITIONER'S CONTENTION, FROM ALL THE CIRCUMSTANCES PROVED,
IS THAT O'DONNELL'S DEATH WAS PROXIMATELY CAUSED BY THE BREAKING OF THE
COUPLER, WHICH PERMITTED THE TWO CARS TO RUN FREE, STRIKE THE STANDING
CARS, AND CAUSE UNEXPECTED MOVEMENT OF THE CARS BETWEEN WHICH O'DONNELL
WAS ENGAGED.  RESPONDENT CONTENDS THAT THEY INDICATE INSTEAD THAT DEATH
RESULTED FROM A LATER AND INDEPENDENT MOVEMENT ON THE TRACK WHEN THE
RUNAWAY CARS WERE HAULED OUT - AN EVENT WHICH TOOK PLACE BEFORE
DISCOVERY OF DECEDENT'S BODY BUT AFTER THE COLLISION OF THE TWO SETS OF
CARS.  WE NEED NOT RESOLVE THE CONFLICT BETWEEN THESE COMPETING
THEORIES OF CAUSATION, FOR THAT DECISION WAS FOR THE JURY.  ELLIS V.
UNION PACIFIC R. CO., 329 U.S. 649, 653. 

OUR CONCERN IS WITH THE EFFECT ACCORDED BY THE TRIAL COURT'S
INSTRUCTIONS TO THE BREAKING OF THE COUPLER.  THE ISSUE WAS DEFINED BY
THE COURT OF APPEALS:  "THE RECORD IS DEVOID OF ANY REQUEST BY
PLAINTIFF THAT THE JURY BE INSTRUCTED THAT THEY MIGHT INFER NEGLIGENCE
FROM THE BREAKING OF THE COUPLER, BUT IN THE DISTRICT COURT PLAINTIFF
CONTENDED FOR AND TENDERED INSTRUCTIONS UPON THE THEORY THAT A BREAKING
OF THE COUPLER IN AND OF ITSELF WAS NEGLIGENCE PER SE.  THE COURT
REFUSED TO SO INSTRUCT."  171 F.2D AT 976.  THE COURT OF APPEALS, WITH
ONE DISSENT, SUSTAINED THIS REFUSAL SO TO CHARGE, SAYING, "WE DO NOT
BELIEVE THE ACT REQUIRED DEFENDANT TO FURNISH COUPLERS THAT WOULD NOT
BREAK.  WE THINK THE TRUE RULE IS THAT WHERE A COUPLER DOES BREAK, THE
JURY MAY, IF THEY THINK IT REASONABLE UNDER ALL THE CIRCUMSTANCES,
INFER THAT THE COUPLER WAS DEFECTIVE AND WAS FURNISHED AND USED IN
VIOLATION OF THE ACT.  THE CASES GO NO FURTHER THAN TO HOLD THAT FROM
THE BREAKING OF A COUPLER THE JURY MAY INFER NEGLIGENCE."  AS THIS VIEW
OF THE SAFETY APPLIANCE ACT APPEARS TO CONFLICT WITH THE RULE LAID DOWN
IN OTHER JURISDICTIONS,  FN1 WE GRANTED CERTIORARI.  337 U.S. 929. 

A CLOSE AND LITERAL READING OF THE SAFETY APPLIANCE ACT, 45 U.S.C.
SEC. 2,  FN2  SUGGESTS THAT TWO FUNCTIONS ONLY ARE REQUIRED OF
COUPLERS:  THAT THEY COUPLE AUTOMATICALLY BY IMPACT AND THAT THEY
UNCOUPLE WITHOUT REQUIRING MEN TO GO BETWEEN THE ENDS OF THE CARS. 
THIS CONSTRUCTION FINDS SOME SUPPORT IN THE DECISIONS.  SEE, E.G., ST.
LOUIS & SAN FRANCISCO R. CO. V. CONARTY, 238 U.S. 243, 250; CHICAGO, B.
& Q.R. CO. V. UNITED STATES, 220 U.S. 559, 571; LOUISVILLE & NASHVILLE
R. CO. V. LAYTON, 243 U.S. 617; JOHNSON V. SOUTHERN PACIFIC CO., 196
U.S. 1, 18.  SEE ALSO UNITED STATES V. SOUTHERN R. CO., 135 F. 122,
127(S.D. ILL., 1905); CHESAPEAKE & OHIO R. CO. V. CHARLTON, 247 F. 34,
40(C.A.4TH CIR., 1917); CHICAGO, M., ST. P. & P.R. CO. V. LINEHAN, 66
F.2D 373, 377(C.A.8TH CIR., 1933); PENN V. CHICAGO & N.W.R. CO., 163
F.2D 995, 997(C.A.7TH CIR., 1947). 

COURTS AT OTHER TIMES HAVE HELD, HOWEVER, THAT FAILURE OF COUPLERS TO
REMAIN COUPLED UNTIL RELEASED CONSTITUTES OR EVIDENCES A VIOLATION OF
THE ACT JUST AS DOES THEIR FAILURE TO COUPLE UPON IMPACT OR UNCOUPLE
FROM THE SIDES OF CARS.  AS STATED BY THE COURT OF APPEALS, SECOND
CIRCUIT, THE ACT "IS ALSO AIMED AT INSURING COUPLERS THAT WILL HOLD
TOGETHER."  KEENAN V. DIRECTOR GENERAL OF RAILROADS, 285 F. 286,
290(C.A.2D CIR., 1922); PHILADELPHIA & R.R. CO. V. EISENHART, 280 F.
271(C.A. 3D CIR., 1922); ERIE R. CO. V. CALDWELL, 264 F. 947(C.A.6TH
CIR., 1920); SOUTHERN PACIFIC CO. V. THOMAS, 21 ARIZ. 355, 188 P. 268;
KOWALSKI V. CHICAGO & N.W.R. CO., 159 MINN. 388, 199 N.W. 178;
MCALLISTER V. ST. LOUIS MERCHANTS BRIDGE TERMINAL R. CO.(, 324 MO.
1005, 25 S.W.2D 791; SAXTON V. DELAWARE & HUDSON CO., 256 N.Y. 363, 176
N.E. 425; STEWART V. WABASH R. CO.(, 105 NEB. 812, 182 N.W. 496.  AND
SEE REETZ V. CHICAGO & E.R. CO., 46 F.2D 50(C.A.6TH CIR., 1931).  THIS
APPEARS ALSO TO HAVE BEEN THE VIEW OF THIS COURT IN THE ONLY CASE OF
THIS NATURE EVER BEFORE IT.  MINNEAPOLIS & ST. LOUIS R. CO. V.
GOTSCHALL, 244 U.S. 66.  SEE ALSO MINNEAPOLIS, ST. PAUL & SAULT STE. 
MARIE R. CO. V. GONEAU, 269 U.S. 406. 

IT IS HARD TO THINK OF A COUPLER DEFECT IN WHICH GREATER DANGER
INHERES TO WORKMEN, TRAVELERS AND ALL TO WHOM THE RAILROAD OWES A DUTY,
THAN ONE WHICH SETS CARS RUNNING UNCONTROLLED UPON ITS TRACKS.  WE FIND
IT DIFFICULT TO READ THE SAFETY APPLIANCE ACT TO REQUIRE THAT CARS BE
EQUIPPED WITH APPLIANCES WHICH COUPLE AUTOMATICALLY BY IMPACT AND WHICH
MAY BE RELEASED WITHOUT GOING BETWEEN THE ENDS OF CARS, BUT WHICH NEED
NOT REMAIN COUPLED IN THE MEANTIME.  THE ACT SO CONSTRUED WOULD GUARD
AGAINST DANGERS INCIDENT TO EFFECTING AN ENGAGEMENT OR DISENGAGEMENT
WHILE IGNORING THE EVEN GREATER HAZARDS WHICH CAN RESULT FROM THE
FAILURE OF A COUPLING TO PERFORM ITS MAIN FUNCTION, WHICH IS TO STAY
COUPLED UNTIL RELEASED. 

WE HOLD THAT THE SAFETY APPLIANCE ACT REQUIRES COUPLERS WHICH, AFTER
A SECURE COUPLING IS EFFECTED, WILL REMAIN COUPLED UNTIL SET FREE BY
SOME PURPOSEFUL ACT OF CONTROL. 

WHAT THEN SHOULD A JURY BE INSTRUCTED IS THE CONSEQUENCE OF A FAILURE
TO PROVIDE COUPLERS THAT SO PERFORM?  SHOULD THE JURY BE INSTRUCTED
THAT IT MUST FIND LIABILITY OR MERELY THAT IT MAY FIND LIABILITY FOR
INJURIES PROXIMATELY RESULTING FROM THE FAILURE? 

THE ARGUMENTS AND INSTRUCTIONS IN THIS CASE, AS WELL AS OTHERS, AND
THE LANGUAGE OF MANY OPINIONS AND TEXTS REFLECT WIDESPREAD CONFUSION AS
TO THE EFFECT TO BE ACCORDED A VIOLATION OF THE FEDERAL SAFETY
APPLIANCE STATUTE.  FN3  PART OF THIS CONFUSION IS TRACEABLE TO THE
DIVERSITY OF JUDICIAL OPINION CONCERNING THE CONSEQUENCES ATTRIBUTED IN
NEGLIGENCE ACTIONS TO THE VIOLATION OF A STATUTE.  FN4  BREACH OF
CERTAIN STATUTES IN VARIOUS JURISDICTIONS WILL BE REGARDED AS SOME
EVIDENCE OF NEGLIGENCE, TO BE WEIGHED BY THE JURY ALONG WITH THE
FACTS.  HAYES V. MICHIGAN CENTRAL R. CO.(, 111 U.S. 228, 240; UNION
PACIFIC R. CO. V. MCDONALD, 152 U.S. 262, 283.  AT OTHER TIMES OR
PLACES, OR UNDER OTHER STATUTES, A VIOLATION MAY BE "PRIMA FACIE" OR
"PRESUMPTIVE" EVIDENCE OF NEGLIGENCE WHICH DEFENDANT MUST MEET OR
OVERCOME.  E.G., VOILES V. HUNT, 213 IOWA 1234, 240 N.W. 703.  COURTS
SOMETIMES TALK OF IT IN TERMS OF RES IPSA LOQUITUR, CF. MINNEAPOLIS &
ST. LOUIS R. CO. V. GOTSCHALL, SUPRA(, OR TREAT VIOLATIONS AS
NEGLIGENCE PER SE.  E.G., SAN ANTONIO & A.P.R. CO. V. WAGNER, 241 U.S.
476, 484; WATTS V. MONTGOMERY TRACTION CO., 175 ALA. 102, 57 SO. 471;
EVANS V. KLUSMEYER, 301 MO. 352, 359, 256 S.W. 1036, 1037-1038.  IT IS
NOT UNCOMMON THAT WITHIN THE SAME JURISDICTION THE RULE IS DIFFERENT AS
TO DIFFERENT STATUTES.  SEE MARTIN V. HERZOG, 228 N.Y. 164, 168, 126
N.E. 814, 815.  BUT USUALLY, UNLESS THE STATUTE SETS UP A SPECIAL CAUSE
OF ACTION FOR ITS BREACH, A VIOLATION BECOMES AN INGREDIENT, OF GREATER
OR LESSER WEIGHT, IN DETERMINING THE ULTIMATE QUESTION OF NEGLIGENCE. 

BUT THIS COURT EARLY SWEPT ALL ISSUES OF NEGLIGENCE OUT OF CASES UNDER
THE SAFETY APPLIANCE ACT.  FOR REASONS SET FORTH AT LENGTH IN OUR
BOOKS, THE COURT HELD THAT A FAILURE OF EQUIPMENT TO PERFORM AS
REQUIRED BY THE SAFETY APPLIANCE ACT IS IN ITSELF AN ACTIONABLE WRONG,
IN NO WAY DEPENDENT UPON NEGLIGENCE AND FOR THE PROXIMATE RESULTS OF
WHICH THERE IS LIABILITY - A LIABILITY THAT CANNOT BE ESCAPED BY PROOF
OF CARE OR DILIGENCE.  ST. LOUIS, I.M. & S.R. CO. V. TAYLOR, 210 U.S.
281, 294; CHICAGO, B. & Q.R. CO. V. UNITED STATES, SUPRA, 275-577; DELK
V. ST. LOUIS & S.F.R. CO., 220 U.S. 580.  THESE RIGOROUS HOLDINGS WERE
MORE RECENTLY EPITOMIZED BY CHIEF JUSTICE HUGHES, SPEAKING FOR THE
COURT:  "THE STATUTORY LIABILITY IS NOT BASED UPON THE CARRIER'S
NEGLIGENCE.  THE DUTY IMPOSED IS AN ABSOLUTE ONE AND THE CARRIER IS NOT
EXCUSED BY ANY SHOWING OF CARE HOWEVER ASSIDUOUS."  BRADY V. TERMINAL
RAILROAD ASSN., 303 U.S. 10, 15. 

NOTWITHSTANDING THIS COURT'S EFFORTS TO DISTINGUISH THE SAFETY
APPLIANCE VIOLATION CASE FROM THE COMMON LAW NEGLIGENCE CASE, CONFUSION
OF THE TWO PERSISTS, IN PART, AT LEAST, DUE TO THE ANOMALOUS PROCEDURE
BY WHICH SUCH CLAIMS ARE LITIGATED.  THIS NON-NEGLIGENCE CLAIM, BASED
ON A STATUTORY VIOLATION, IS PURSUED BY ACTION UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, BASICALLY A FORM OF ACTION PREDICATED ONLY
UPON NEGLIGENCE.  FN5  THE APPLIANCE CAUSE OFTEN IS JOINED WITH ONE FOR
NEGLIGENCE, AND EVEN SOMETIMES, AS HERE, MINGLED IN A SINGLE MONGREL
CAUSE OF ACTION.  IN ADDITION, AT TRIAL, CERTAIN ISSUES SUCH AS
CAUSATION AND EXTENT OF INJURY, FOR EXAMPLE, ARE COMMON TO BOTH CAUSES
OF ACTION.  ALL OF THIS HAS RESULTED IN MUCH BORROWING OF THE LANGUAGE
OF NEGLIGENCE LAW TO DEAL WITH SFETY APPLIANCE ACT CASES.  AND SO, IN
AN EARLY CASE IN WHICH THIS COURT HELD, "IF THIS ACT IS VIOLATED, THE
QUESTION OF NEGLIGENCE IN THE GENERAL SENSE OF WANT OF CARE IS
IMMATERIAL," WE FIND THAT IT WENT ON NEVERTHELESS TO SAY THAT THE
VIOLATION IS TREATED "AS 'NEGLIGENCE' - WHAT IS SOMETIMES CALLED
NEGLIGENCE PER SE."  SAN ANTONIO & A.P.R. CO. V. WAGNER, SUPRA. 

IN A LATER CASE, THE CONTENTION IN THIS COURT INVOLVED THE RULE OF
RES IPSA LOQUITUR(, A MAXIM OF THE LAW OF EVIDENCE APPLICABLE IN SOME
NEGLIGENCE CASES.  THE TRIAL COURT HAD CHARGED THAT FROM THE BREAKING
OF THE COUPLER THE JURY MIGHT INFER NEGLIGENCE, WHICH WAS THE
INSTRUCTION WHICH HAD BEEN REQUESTED BY THE PLAINTIFF.  THE RAILROAD
OPPOSED THIS INSTRUCTION.  THIS COURT, IN AN OPINION ANTICIPATORY OF
THIS ONE, UPHELD THE CHARGE AGAINST THE OBJECTION.  SINCE THE PLAINTIFF
HAD RECOVERED A VERDICT, THIS COURT, IN AFFIRMING, FOUND NO OCCASION TO
CONSIDER WHETHER THE PLAINTIFF WOULD HAVE BEEN ENTITLED TO A MORE
FAVORABLE CHARGE.  BUT THE OPINION NEGATIVING THE RAILROAD'S OBJECTION
AS INCONSISTENT WITH THE ABSOLUTE LIABILITY IMPOSED BY THE ACT APPEARS
IN THE HEADNOTE AS A HOLDING "THAT, IN VIEW OF THE SAFETY APPLIANCE
ACT, NEGLIGENCE MIGHT BE INFERRED FROM THE MERE OPENING OF THE
COUPLERS."  MINNEAPOLIS & ST. LOUIS R. CO. V. GOTSCHALL, SUPRA.  THUS
THE VOCABULARY OF NEGLIGENCE, APPROPRIATED TO NON-NEGLIGENCE USES,
COMES TO DOMINATE THE THOUGHT. 

WE NO LONGER INSIST UPON TECHNICAL RULES OF PLEADING, BUT IT WILL
EVER BE DIFFICULT IN A JURY TRIAL TO SEGREGATE ISSUES WHICH COUNSEL DO
NOT SEPARATE IN THEIR PLEADING, PREPARATION OR THINKING.  WE THINK THE
UNFORTUNATELY PROLONGED COURSE OF THIS LITIGATION IS IN NO SMALL PART
DUE TO THE FAILURE TO HEED THE ADMONITION WELL STATED BY THE COURT OF
APPEALS OF THE SEVENTH CIRCUIT IN A SIMILAR CASE:  "OF COURSE, IT IS
NOT PROPER TO PLEAD DIFFERENT THEORIES IN THE SAME PARAGRAPH, BUT IT IS
NOT NECESSARILY FATAL ESPECIALLY WHEN THE ADVERSARY MAKES NO
OBJECTION."  VIGOR V. CHESAPEAKE & OHIO R. CO., 101 F.2D 865,
869(1939).  PLEADINGS WILL SERVE THE PURPOSE OF SHARPENING AND LIMITING
THE ISSUES ONLY IF CLAIMS BASED ON NEGLIGENCE ARE SET FORTH SEPARATELY
FROM THOSE BASED ON VIOLATION OF THE APPLIANCE ACTS.  FN6 

BUT NO MATTER HOW THE PLEADINGS ARE ALLOWED TO STAND, WE THINK IT IS
ALMOST INDISPENSABLE TO AN INTELLIGIBLE CHARGE TO THE JURY THAT A CLEAR
SEPARATION OF THE TWO KINDS OF ACTIONS BE OBSERVED AND IMPRESSED.  THE
TRIAL COURT IN THIS CASE SUBMITTED THE WHOLE INDISCRIMINATELY AS A
NEGLIGENCE CASE.  THIS IS HARDLY TO BE REGARDED AS REVERSIBLE ERROR,
FOR BOTH COUNSEL PLEADED AND TRIED THE CASE AS SUCH AND THEIR REQUESTS
WERE STATED ENTIRELY IN TERMS OF THE LAW OF NEGLIGENCE.  BUT THE
SCRAMBLING OF THE CLAIMS IN THIS CASE ILLUSTRATES HOW MUCH EVIDENCE MAY
BE ADMITTED, SUBMITTED AND CONSIDERED ON NEGLIGENCE ISSUES THAT, UNDER
OUR REPEATED HOLDINGS, WOULD BE IMMATERIAL IN CASE OF VIOLATION OF THE
SAFETY APPLIANCE ACTS.    THE PLAINTIFF, FOR EXAMPLE, CAN ADD NOTHING
TO THE LIABILITY INCURRED FROM A VIOLATION OF THE ACT BY PRODUCING
EVIDENCE OF NEGLIGENCE.  HERE THERE WAS AFFIRMATIVE AND, SO FAR AS WE
CAN FIND, UNCONTRADICTED TESTIMONY THAT THERE WAS "A PARTIAL FRACTURE
ON THE INSIDE OF THE COUPLER," INDICATING THAT THE COUPLER WAS WEAKENED
BY AN OLD DEFECT.  HOWEVER IMPORTANT THIS EVIDENCE MIGHT HAVE BEEN IN
DETERMINING COMMON LAW NEGLIGENCE, IT ADDED NOTHING TO THE DIRECT CASE
UNDER THE SAFETY APPLIANCE ACT MADE BY SHOWING THE BREAKING OF THE
COUPLER.    THE DEFENDANT STRESSED EVIDENCE THAT IN THE SWITCHING
OPERATION THE COUPLER BROKE CONCURRENTLY WITH AN EMERGENCY STOP.  SUCH
EVIDENCE MIGHT BE MATERIAL ON THE QUESTION OF NEGLIGENCE.  BUT THE ACT
CERTAINLY REQUIRES EQUIPMENT THAT WILL WITHSTAND THE STRESS AND STRAIN
OF ALL ORDINARY OPERATION, GRADES, LOADINGS, STOPS AND STARTS,
INCLUDING EMERGENCY STOPS.  A DEFENDANT CANNOT ESCAPE LIABILITY FOR A
COUPLER'S INADEQUACY BY SHOWING THAT TOO MUCH WAS DEMANDED OF IT, NOR
BY SHOWING THAT WHILE THE COUPLER BROKE IT HAD BEEN PROPERLY
MANUFACTURED, DILIGENTLY INSPECTED AND SHOWED NO VISIBLE DEFECTS. 
THESE CIRCUMSTANCES DO GO TO THE QUESTION OF NEGLIGENCE; BUT, EVEN IF A
RAILROAD SHOULD EXPLAIN AWAY ITS NEGLIGENCE, THAT IS NOT ENOUGH TO
EXPLAIN AWAY ITS LIABILITY IF IT HAS VIOLATED THE ACT.  FN7 

CRITICISM IS MADE THAT PETITIONER'S REQUESTS TO CHARGE WERE NOT
SUFFICIENTLY SPECIFIC.  THAT THEY WERE SOMEWHAT GENERAL IN STATEMENT
AND WERE CAST IN TERMS OF A NEGLIGENCE CASE IS TRUE.  BUT THE COURT OF
APPEALS FOUND THESE REQUESTS SUFFICIENTLY SPECIFIC AND PERTINENT TO THE
ISSUES TO PRESENT THE QUESTION WHICH IT DECIDED.  AND IN DECIDING THIS
QUESTION THE WAY IT DID, WE BELIEVE IT HAS FALLEN INTO ERROR.  WE MAKE
NO EXAMINATION OF THE CHARGE INSOFAR AS IT RELATED TO THE ISSUE OF
GENERAL NEGLIGENCE.  AS TO THE CLAIM BASED ON THE SAFETY APPLIANCE ACT,
WE HOLD THAT THE PLAINTIFF WAS ENTITLED TO A PEREMPTORY INSTRUCTION
THAT TO EQUIP A CAR WITH A COUPLER WHICH BROKE IN THE SWITCHING
OPERATION WAS A VIOLATION OF THE ACT, WHICH RENDERED DEFENDANT LIABLE
FOR INJURIES PROXIMATELY RESULTING THEREFROM, AND THAT NEITHER EVIDENCE
OF NEGLIGENCE NOR OF DILIGENCE AND CARE WAS TO BE CONSIDERED ON THE
QUESTION OF THIS LIABILITY.  REVERSED. 

FN1  PHILADELPHIA & R.R. CO. V. EISENHART, 280 F. 271(C.A. 3D CIR.,
1922); KEENAN V. DIRECTOR GENERAL OF RAILROADS, 285 F. 286(C.A.2D CIR.,
1922); MCALLISTER V. ST. LOUIS MERCHANTS BRIDGE TERMINAL R. CO., 324
MO. 1005, 1014, 25 S.W.2D 791, 796(1930); SOUTHERN PACIFIC CO. V.
THOMAS, 21 ARIZ. 355, 360-361, 188 P. 268, 270(1920); KOWALSKI V.
CHICAGO & N.W.R. CO., 159 MINN. 388, 392-393, 199 N.W. 178, 180(1924);
SAXTON V. DELAWARE & HUDSON CO., 256 N.Y. 363, 176 N.E. 425(1931).  CF.
VIGOR V. CHESAPEAKE & O.R. CO., 101 F.2D 865, 868(C.A.7TH CIR., 1939);
WESTERN & ATL. R. CO. V. GENTLE, 58 GA. APP. 282, 295, 198 S.E. 257,
265(1938). 

FN2  "IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER ENGAGED IN
INTERSTATE COMMERCE BY RAILROAD TO HAUL OR PERMIT TO BE HAULED OR USED
ON ITS LINE ANY CAR USED IN MOVING INTERSTATE TRAFFIC NOT EQUIPPED WITH
COUPLERS COUPLING AUTOMATICALLY BY IMPACT, AND WHICH CAN BE UNCOUPLED
WITHOUT THE NECESSITY OF MEN GOING BETWEEN THE ENDS OF THE CARS." 

FN3 E.G., SAN ANTONIO & A.P.R. CO. V. WAGNER, 241 U.S. 476;
MINNEAPOLIS & ST. LOUIS R. CO. V. GOTSCHALL, 244 U.S. 66; SOUTHERN PAC.
CO. V. THOMAS, 21 ARIZ. 355, 361, 188 P. 268, 270; WESTERN & ATLANTIC
R. CO. V. GENTLE, 58 GA. APP. 282, 198 S.E. 257; VIGOR V. CHESAPEAKE &
O.R. CO., 101 F.2D 865, 869.  SEE ALSO 2 ROBERTS, FEDERAL LIABILITIES
OF CARRIERS, SECS. 620, 655 ET SEQ., 789, 790(2D ED. 1929); 2 SHEARMAN
& REDFIELD ON NEGLIGENCE, SEC. 183(REV.  ED. 1941); THORNTON, FEDERAL
EMPLOYERS' LIABILITY AND SAFETY APPLIANCE ACTS, SECS. 289, 302, 311(3D
ED. 1916); RICHEY'S FEDERAL EMPLOYERS' LIABILITY, SAFETY APPLIANCE, AND
HOURS OF SERVICE ACTS, SECS. 56, 217, 252(2D ED. 1916). 

FN4  FOR DISCUSSIONS OF THE GENERAL PROBLEM AND ILLUSTRATIVE CASES,
SEE PROSSER ON TORTS, SEC. 39; HARPER, LAW OF TORTS, SEC. 78; BOHLEN,
CASES ON TORTS, PP. 187-204(3D ED. 1930); 1 SHEARMAN & REDFIELD ON
NEGLIGENCE, SECS. 11, 12(REV.  ED. 1941); 2 RESTATEMENT OF THE LAW OF
TORTS, SECS. 286-288; THAYER, PUBLIC WRONG AND PRIVATE ACTION, 27 HARV.
L. REV. 317; LOWNDES, CIVIL LIABILITY CREATED BY CRIMINAL LEGISLATION,
16 MINN. L. REV. 361. 

FN5  SECTION 1 OF THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C.
SEC. 51, PROVIDES THAT "EVERY COMMON CARRIER BY RAILROAD  ...  SHALL BE
LIABLE IN DAMAGES  ...  FOR SUCH INJURY OR DEATH RESULTING IN WHOLE OR
IN PART  ...  BY REASON OF ANY DEFECT OR INSUFFICIENCY, DUE TO ITS
NEGLIGENCE  ...  "  AND SEE SEABOARD AIR LINE R. CO. V. HORTON, 233
U.S. 492, 501-502. 

FN6  THIS, AFTER ALL, IS THE COMMAND OF RULE 10(B), FEDERAL RULES OF
CIVIL PROCEDURE, WHICH PROVIDES:  "ALL AVERMENTS OF CLAIM OR DEFENSE
SHALL BE MADE IN NUMBERED PARAGRAPHS, THE CONTENTS OF EACH OF WHICH
SHALL BE LIMITED AS FAR AS PRACTICABLE TO A STATEMENT OF A SINGLE SET
OF CIRCUMSTANCES  ...  " 

PROFESSOR MOORE, IN DISCUSSING THIS RULE WITH REFERENCE TO CLAIMS
BASED UPON BOTH COMMON LAW AND STATUTORY GROUNDS, STATES:  "SEPARATE
STATEMENT BY WAY OF COUNTS IS NOT REQUIRED; SEPARATE PARAGRAPHING IN
SETTING OUT THE GROUNDS IN THE ABOVE ACTIONS IS DESIRABLE AND
REQUIRED."  2 MOORE'S FEDERAL PRACTICE, 2006-2007(2D ED. 1948). 

FN7  WE DO NOT SAY THAT A RAILROAD MAY NEVER EFFECTIVELY DEFEND UNDER
THE ACT BY SHOWING THAT AN ADEQUATE COUPLER FAILED TO HOLD BECAUSE IT
WAS BROKEN OR RELEASED THROUGH INTERVENING AND INDEPENDENT CAUSES OTHER
THAN ITS INADEQUACY OR DEFECTIVENESS; SUCH, FOR EXAMPLE, AS THE WORK OF
A SABOTEUR.  AND WE DO NOT FIND IT NECESSARY TO CONSIDER A SITUATION
WHERE AN ADEQUATE COUPLER FAILED TO HOLD BECAUSE IT WAS IMPROPERLY SET,
SINCE SUCH FACTS ARE NOT BEFORE US. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS AND MR. JUSTICE MINTON
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE REED CONCURS, DISSENTING. 

WE DO NOT AGREE THAT THE SAFETY APPLIANCE ACTS CONTAIN A MANDATORY
REQUIREMENT THAT CARS USED IN MOVING INTERSTATE TRAFFIC MUST BE
EQUIPPED WITH COUPLERS THAT "WILL REMAIN COUPLED UNTIL SET FREE BY SOME
PURPOSEFUL ACT OF CONTROL."  FN1  CONGRESS MIGHT HAVE SO LEGISLATED, AS
IT DID IN THE SECTION WHICH REQUIRED CARS TO BE EQUIPPED WITH
"EFFICIENT HAND BRAKES; ...  "  FN2  SEE MYERS V. READING CO., 331 U.S.
477.  HOWEVER, IT DID NOT DO SO.  ACCORDINGLY, THE TRIAL JUDGE, ON THIS
PHASE OF THIS CASE, WAS JUSTIFIED IN OMITTING ANY INSTRUCTION TO THE
JURY THAT, IF THE RAILROAD USED A CAR EQUIPPED WITH A COUPLER THAT
BROKE IN THE SWITCHING OPERATION, IT THEREBY VIOLATED THE SAFETY
APPLIANCE ACTS. 

IN OUR VIEW, THE SEPARATING OF THE CARS AT THE BROKEN COUPLER WAS
PROPERLY TREATED AS MATERIAL EVIDENCE FROM WHICH THE JURY COULD INFER
THAT THE RAILROAD HAD VIOLATED THE PROHIBITION OF THE ACTS AGAINST
USING CARS "NOT EQUIPPED WITH COUPLERS COUPLING AUTOMATICALLY BY
IMPACT, AND WHICH CAN BE UNCOUPLED WITHOUT THE NECESSITY OF MEN GOING
BETWEEN THE ENDS OF THE CARS."  FN3  VIGOR V. CHESAPEAKE & O.R. CO.,
101 F.2D 865.  CF. JOHNSON V. SOUTHERN PACIFIC CO., 196 U.S. 1.  THE
JURY WAS ADEQUATELY INSTRUCTED TO THAT EFFECT. 

FN1  SUPRA, P. 389. 

FN2  36 STAT. 298, 45 U.S.C. SEC. 11. 

FN3  27 STAT. 531, 45 U.S.C. SEC. 2. 
..END :












UNITED STATES V. TORONTO NAV. CO., 338 U.S. 396 


NO. 39.  ARGUED NOVEMBER 9, 1949.  - DECIDED DECEMBER 12, 1949.  - 112
CT. CL. 240, 81 F.SUPP.  237, REVERSED. 


UNDER AUTHORITY OF SEC. 902 OF THE MERCHANT MARINE ACT OF 1936, AS
AMENDED, THE UNITED STATES REQUISITIONED RESPONDENT'S FRESH-WATER CAR
FERRY ON LAKE ERIE.  THE VESSEL WAS BUILT IN 1916; WAS IN SERVICE ON
LAKE ERIE FROM THAT YEAR UNTIL 1932; AND, EXCEPT FOR A 2-YEAR CHARTER
PERIOD, WAS IDLE FROM 1932 UNTIL REQUISITIONED IN 1942.  IN DETERMINING
THE AMOUNT OF JUST COMPENSATION REQUIRED BY THE FIFTH AMENDMENT TO BE
PAID RESPONDENT, THE COURT OF CLAIMS, ABSENT EVIDENCE OF "MARKET
VALUE," RELIED UPON THE EARNINGS OF THE VESSEL FROM 1916 TO 1932 AND
UPON THE "DEMAND" FOR SUCH A VESSEL FOR USE BETWEEN FLORIDA AND CUBA. 
HELD: 

1.  ON THE RECORD IN THIS CASE, THE COURT OF CLAIMS ERRED IN RELYING
ON THE VESSEL'S 1916-1932 EARNINGS.  PP. 402-403. 

(A)  WHERE, AS HERE, IT IS IMPOSSIBLE TO DETERMINE "MARKET VALUE" AS
A BASIS FOR JUST COMPENSATION, OTHER MEASURES OF VALUE MAY BE
RELEVANT.  PP. 402-403. 

(B)  PAST EARNINGS ARE SIGNIFICANT IN ASSESSING VALUE ONLY WHEN THEY
TEND TO REFLECT FUTURE RETURNS.  P. 403. 

(C)  ON THE RECORD, THE VESSEL'S 1916-1932 EARNINGS WERE WITHOUT
RELEVANCE ON THE ISSUE OF ITS CAPACITY TO EARN AFTER 1942, ON THE GREAT
LAKES OR ELSEWHERE.  P. 403. 

2.  ON THE RECORD IN THIS CASE, THE COURT OF CLAIMS ERRED IN
ACCORDING WEIGHT TO FLORIDA VALUES.  PP. 404-407. 

(A)  TO JUSTIFY CONSIDERATION OF FLORIDA VALUES, THE BURDEN WAS ON
THE RESPONDENT TO SHOW THAT IT WAS LIKELY THAT A PROSPECTIVE FLORIDA
BUYER WOULD HAVE INVESTIGATED THE GREAT LAKES MARKET AND CONSIDERED A
VESSEL LIKE RESPONDENT'S MOORED TO ITS OHIO DOCK; OR THAT THE ORDINARY
GREAT LAKES OWNER WOULD HAVE TAKEN THE TROUBLE AND EXPENSE TO SEND A
VESSEL TO FLORIDA FOR A POSSIBLE SALE; OR THAT EITHER OF THESE
POSSIBILITIES WOULD HAVE HAD AN EFFECT ON PRICE HAD RESPONDENT'S VESSEL
BEEN SOLD ON THE GREAT LAKES.  P. 406. 

(B)  THE QUESTION IN SUCH CASE IS WHAT THE ORDINARY BUSINESSMAN IN
THE TRADE WOULD HAVE DONE, NOT WHAT THE OWNER WOULD HAVE DONE.  P.
406. 

(C)  RESPONDENT'S BURDEN OF PROOF WAS NOT MET BY A BARE RECORD OF
FIVE SALES, THREE OF WHICH WERE TO THE UNITED STATES, AND BUT ONE ON
THE GREAT LAKES FOR FLORIDA USE - AND THAT AFTER THE WAR'S END.  P.
406. 

(D)  A FINDING BY THE COURT OF CLAIMS THAT THERE WERE PROBABILITIES
OF SALE IN FLORIDA IN 1942 SUFFICIENT TO WARRANT CONSIDERATION OF
DEMAND THERE IN FIXING THE VALUE OF RESPONDENT'S VESSEL, ON SUBSTANTIAL
EVIDENCE NOT NOW BEFORE THIS COURT, IS NOT FORECLOSED; BUT THE COURT OF
CLAIMS IS NOT BOUND TO ACCEPT ANY GEOGRAPHIC PRICE RANGE AT FULL
VALUE.  PP. 406-407. 

UNITED STATES V. TORONTO, HAMILTON & BUFFALO NAVIGATION CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

IN AN ACTION AGAINST THE UNITED STATES TO RECOVER JUST COMPENSATION
FOR A VESSEL REQUISITIONED UNDER SEC. 902 OF THE MERCHANT MARINE ACT OF
1936, AS AMENDED, THE COURT OF CLAIMS AWARDED JUDGMENT IN FAVOR OF THE
CLAIMANT, RESPONDENT HERE.  112 CT. CL. 240, 81 F.SUPP.  237.  THIS
COURT GRANTED CERTIORARI.  336 U.S. 965.  REVERSED AND REMANDED, P.
407. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

WE ARE FACED AGAIN WITH ELUSIVE QUESTIONS OF PROPERTY VALUATION IN
DETERMINING WHETHER THE UNITED STATES AWARDED "JUST COMPENSATION" UNDER
THE FIFTH AMENDMENT WHEN IT TOOK THE RESPONDENT'S CAR FERRY, THE
MAITLAND NO. 1, UNDER THE AUTHORITY OF SEC. 902 OF THE MERCHANT MARINE
ACT OF 1936, AS AMENDED, 53 STAT. 1254, 1255, 46 U.S.C. SEC. 1242.  THE
GOVERNMENT REQUISITIONED THE VESSEL IN 1942, AND DETERMINED ITS FAIR
VALUE AS $72,500.  IN 1943, RESPONDENT EXERCISED ITS OPTION TO ACCEPT
75 PER CENT OF THE AWARD, AND IN 1945 BROUGHT ACTION IN THE COURT OF
CLAIMS TO RECOVER $711,753 AS THE ADDITIONAL AMOUNT NECESSARY FOR JUST
COMPENSATION.  THE COURT, TWO JUDGES DISSENTING, HELD THAT THE FAIR
VALUE OF THE MAITLAND WAS $161,833.72, MORE THAN TWICE THE GOVERNMENT'S
ORIGINAL DETERMINATION.  112 CT. CL. 240, 81 F.SUPP.  237.  WE BROUGHT
THE CASE HERE ON CERTIORARI, 336 U.S. 965, BECAUSE IT PRESENTS PROBLEMS
OF DIFFICULTY AND IMPORTANCE IN THE PRACTICAL APPLICATION OF THE
GENERAL STANDARD OF JUST COMPENSATION. 

THE FACTS WERE FOUND BY THE COURT OF CLAIMS.  THEY MUST BE STATED IN
SOME DETAIL. 

1.  THE MAITLAND NO. 1 WAS A CONVENTIONAL, STEEL-HULL, TWO-STACKER,
TWIN-SCREW FERRY FOR RAILROAD CARS, BUILT IN 1916.  UNTIL 1932 SHE
PLIED ACROSS LAKE ERIE BETWEEN ASHTABULA, OHIO, AND PORT MAITLAND,
CANADA.  SHE WAS RESPONDENT'S ONLY SHIP ON THAT ROUTE, AND HER
PRINCIPAL CARGO WAS COAL FOR A STEEL COMPANY IN HAMILTON, ONTARIO.  ON
THE CANADIAN SIDE, RESPONDENT'S CONNECTING RAIL LINE MOVED THE COAL TO
DESTINATION IN HAMILTON.  BUT A MORE CONVENIENT ROUTE ON LAKE ONTARIO
CAUSED A SHARP DECLINE IN RESPONDENT'S TRAFFIC BEGINNING IN 1928.  AND
WHEN THE "NEW WELLAND CANAL" BETWEEN LAKE ERIE AND LAKE ONTARIO WAS
OPENED IN 1932, AND LARGER SHIPS CARRIED THE LOAD DIRECTLY TO HAMILTON,
RESPONDENT ABANDONED THE LINE.  FROM 1932 TO 1935 THE MAITLAND WAS LAID
UP AT HER DOCK IN OHIO. 

ON NOVEMBER 29, 1935, RESPONDENT CHARTERED THE SHIP AT AN UNSPECIFIED
RATE TO A COMPANY FERRYING FREIGHT ACROSS LAKE MICHIGAN, AND
THEREAFTER, FOR THE CONVENIENCE OF THE PARTIES, TITLE WAS TRANSFERRED
TO THE LAKE MICHIGAN CONCERN.  THE TRANSFER RECITED A TOTAL
CONSIDERATION OF $166,000 AND INCLUDED A "RECAPTURE" CLAUSE.  ON
DECEMBER 15, 1937, THIS RIGHT WAS EXERCISED AND UPON PAYMENT OF
$92,894.80 THE MAITLAND WAS RETURNED TO ASHTABULA WHERE SHE LAY UNTIL
REQUISITIONED IN AUGUST, 1942. 

2.  COST, BOOK AND SCRAP VALUE, UPKEEP AND EARNINGS OF MAITLAND.  -
THE MAITLAND WAS BUILT IN 1916 AT A COST OF $362,800.  RESPONDENT, A
WHOLLY OWNED SUBSIDIARY OF THE NEW YORK CENTRAL AND CANADIAN PACIFIC
RAILWAYS, ACQUIRED HER FROM RESPONDENT'S OWN PRESIDENT IN THAT YEAR,
PAYING $394,560.  FROM 1917 TO 1930, RESPONDENT SPENT $38,115.46 FOR
"ADDITIONS AND BETTERMENTS TO THE VESSEL."  REPAIRS FROM 1922 TO 1932
AMOUNTED TO $20,329.11 PER ANNUM.  LAY-UP EXPENSES FROM 1938 TO 1942 -
THERE IS NO EVIDENCE FOR EARLIER YEARS - AVERAGED $2,700 PER YEAR,
INCLUDING REPAIRS.  IT WOULD HAVE COST THE GOVERNMENT SOME $35,000 TO
PLACE THE SHIP IN OPERATING CONDITION IN 1942. 

HER INSURED VALUATION IN 1942 WAS $100,000; HER SCRAP VALUE $13,500. 
WE DO NOT KNOW THE REPRODUCTION COST AT THAT TIME.  BOOK VALUE, FIGURED
AT ORIGINAL COST LESS DEPRECIATION AT ONE PER CENT FOR EACH OF THE
FIRST THREE YEARS AND FOUR PER CENT PER ANNUM FOR THE REMAINING PERIOD
WAS $75,509.51.  THE EARNINGS VARIED DURING THE YEARS SHE WAS OPERATED
BY RESPONDENT.  THE AVERAGE ANNUAL NET OPERATING INCOME THROUGH
DECEMBER 31, 1920, WAS $17,216.28; BOTH 1921 AND 1922 OPERATIONS FOUND
A DEFICIT, WHILE FOR THE NEXT FIVE YEARS NET PROFIT WAS AT ITS HIGHEST
LEVEL, AVERAGING $129,893.92 PER ANNUM.  1928 AND 1929 WERE
PROGRESSIVELY BAD YEARS AND THE NEXT TWO AND ONE-HALF YEARS SHOWED
LOSSES AVERAGING $15,417.82 PER YEAR.  IN JUNE 1932 THE TRAFFIC WAS SO
POOR THAT THE VESSEL WAS DOCKED AND HER OPERATION NEVER RESUMED.  THE
COURT OF CLAIMS FOUND THAT THE AVERAGE ANNUAL NET PROFIT FOR THE ENTIRE
PERIOD OF OPERATION, ENDING IN 1932, WAS $42,816.36, AMOUNTING TO A
RETURN OF 10.41 PER CENT PER ANNUM ON THE ORIGINAL INVESTMENT. 

3.  SALES OF OTHER VESSELS OF LIKE CLASS ON GREAT LAKES.  - AFTER
1930, SHIPS OF THE MAITLAND TYPE WERE OBSOLETE AND NOT IN DEMAND AS
RAILROAD CAR FERRIES ON THE GREAT LAKES.  CONSTRUCTION OF THE "OUTER
BELT" RAILROAD AROUND THE CHICAGO YARDS AND ABOLITION OF A RATE
DIFFERENTIAL MADE ALLRAIL TRANSPORTATION, OR MOVEMENT ON LARGER AND
MORE MODERN FERRIES, MORE PRACTICAL FOR SHIPPERS. 

BUT THE COURT FOUND THAT IN 1942 "THERE WERE A NUMBER OF SECONDARY
USES FOR THE VESSEL FOR WHICH A DEMAND DID EXIST AT THAT TIME" FOR USE
ON THE GREAT LAKES.  CONVERSION TO AUTOMOBILE FERRY WAS RELATIVELY
SIMPLE AND ECONOMICAL; AND THE COURT FOUND THAT THREE SALES OF SIMILAR
VESSELS HAD OCCURRED FROM 1936 TO 1940 FOR THAT USE.  THE PRICES RANGED
FROM $25,000 TO $65,000, BUT CONVERSION AND REPAIR COSTS WERE GREATER
BECAUSE OF THE AGE AND MAINTENANCE RECORD OF THE VESSELS. 

TWO OTHER VESSELS THAT WERE BUILT FROM THE SAME PLANS AS THE MAITLAND
WERE SOLD FOR USE ON THE GREAT LAKES IN 1940 AND 1942, FOR CONVERSION
AS BULK CARRIERS OF PULPWOOD.  SALE PRICES WERE $24,000 AND $37,724.04,
RESPECTIVELY.  NEITHER OF THESE VESSELS, HOWEVER, WAS IN THE STATE OF
REPAIR OF THE MAITLAND.  ONE HAD BEEN BUILT IN 1903, THE OTHER IN
1910. 

4.  SALES OF VESSELS OF LIKE CLASS FOR CAR FERRYING ON ATLANTIC
COAST.  - WHILE THERE WAS A FINDING THAT IN "1942, THERE WAS A DEMAND
FOR A VESSEL SUCH AS THE MAITLAND NO. 1 FOR USE AS A CAR FERRY BETWEEN
FLORIDA AND CUBA," THERE WAS NO FINDING THAT THIS "DEMAND" HAD
REFLECTED ITSELF IN THE GREAT LAKES MARKET.  THE MAITLAND WAS NOT
EQUIPPED TO OPERATE IN SALT WATER AND IT WOULD HAVE COST "NOT LESS
THAN" $115,000 SO TO EQUIP AND MOVE HER TO FLORIDA, NOT INCLUDING
NECESSARY STRENGTHENING FOR OCEAN SERVICE.  THERE IS NO FINDING THAT
RESPONDENT WOULD HAVE BEEN ABLE TO SELL THE VESSEL HAD IT BEEN
TRANSPORTED TO FLORIDA, NOR THAT SUCCESSFUL OPERATION THERE WAS
POSSIBLE. 

THE FLORIDA "DEMAND" SEEMS TO HAVE BEEN PREDICATED UPON FIVE SALES OF
FOUR VESSELS BETWEEN 1941 AND 1945.  ONLY ONE SHIP, THE GRAND HAVEN,
WAS SOLD WHILE ON THE GREAT LAKES, AND THAT WAS NOT UNTIL AFTER
HOSTILITIES ENDED IN THE LAST WAR.  SHE WAS SMALLER BUT FASTER THAN THE
MAITLAND, AND BROUGHT A $50,000 PRICE.  SHE WAS FLOATED DOWN THE
MISSISSIPPI TO THE GULF AT "CONSIDERABLE EXPENSE."  WE KNOW NEITHER
THIS AMOUNT NOR THE AMOUNT NEEDED FOR REPAIRS. 

THE OTHER FOUR SALES WERE OF VESSELS VERY SIMILAR TO THE MAITLAND,
BUILT BETWEEN 1914 AND 1920; BUT, UNLIKE THE GRAND HAVEN AND THE
MAITLAND, THESE FERRIES WERE OPERATING ON THE ATLANTIC COAST AND WERE
ORIGINALLY CONSTRUCTED FOR OCEAN TRAVEL.  THE SALE PRICES WERE $100,000
AND $170,000 FOR ONE VESSEL, THE HENRY M. FLAGLER,  FN1  AND $332,500
EACH FOR THE TWO OTHERS.  FN2  THE LATTER TWO REQUIRED ABOUT $20,000
EACH FOR REPAIRS.  ALL THREE VESSELS WERE "PURCHASED" BY THE UNITED
STATES AFTER REQUISITION. 

THE COURT OF CLAIMS, FINDING THAT "THE PROPERTY CONDEMNED" WAS
"UNIQUE,  ...  PECULIARLY SITUATED" AND WITHOUT RELATIVE COMPARISON ON
THE GREAT LAKES, CONCLUDED THAT THE MAITLAND WAS WORTH MORE THAN "THE
RESIDUAL VALUE OF AN OBSOLETE CAR FERRY," THUS REQUIRING RESORT TO "A
CONSIDERATION OF THE EARNINGS  ...  , IN CONJUNCTION WITH THE
CONTEMPORANEOUS TRANSACTIONS IN VESSELS OF CLOSE SIMILARITY IN
DETERMINING A FAIR VALUE."  IT CALLED "THE AVERAGE MEAN RESIDUAL VALUE
OF AN OBSOLETE CAR FERRY" $50,000; "ATTRIBUTING THIS VALUE TO THE
MAITLAND," THE CAPITALIZED VALUE OF AN ANNUAL INCOME COMPARABLE TO THAT
OF THE MAITLAND FOR THE SIXTEEN YEARS ENDING IN 1932 WAS THE FIGURE OF
$389,767.15, "ACCORDING TO ACTUARIAL TABLES IN EVIDENCE."  THE COURT
THEN DEDUCTED THE PERCENTAGE DIFFERENCE BETWEEN THE LIFE EXPECTANCY OF
THE VESSEL IN FRESH AND SALT WATER (20%), THE COST OF CONVERSION TO
SALT WATER AND SAILING IT TO FLORIDA, AND THE NECESSARY REPAIRS.  UNDER
THIS FORMULA, $161,833.72 WAS THE FAIR VALUE "FOR ITS HIGHEST AVAILABLE
AND MOST PROFITABLE USE FOR WHICH IT WAS ADAPTABLE AT THE TIME OF ITS
TAKING." 

PERHAPS NO WARNING HAS BEEN MORE REPEATED THAN THAT THE DETERMINATION
OF VALUE CANNOT BE REDUCED TO INEXORABLE RULES.  SUFFICE TO SAY THAT
THE BALANCE BETWEEN THE PUBLIC'S NEED AND THE CLAIMANT'S LOSS HAS BEEN
STRUCK, IN MOST CASES, BY AWARDING THE CLAIMANT THE MONETARY "MARKET
VALUE" OF THE PROPERTY TAKEN.  SEE UNITED STATES V. MILLER, 317 U.S.
369, 374(1943).  USUALLY THAT IS A PRACTICAL STANDARD; USUALLY THAT
APPROACHES THE "JUST" COMPENSATION DEMANDED BY THE FIFTH AMENDMENT. 

AT TIMES, HOWEVER, PECULIAR CIRCUMSTANCES MAY MAKE IT IMPOSSIBLE TO
DETERMINE A "MARKET VALUE."  THERE MAY HAVE BEEN, FOR EXAMPLE, SO FEW
SALES OF SIMILAR PROPERTY THAT WE CANNOT PREDICT WITH ANY ASSURANCE
THAT THE PRICES PAID WOULD HAVE BEEN REPEATED IN THE SALE WE POSTULATE
OF THE PROPERTY TAKEN.  WE THEN SAY THAT THERE IS "NO MARKET" FOR THE
PROPERTY IN QUESTION.  BUT THAT DOES NOT PUT OUT OF HAND THE BEARING
WHICH THE SCATTERED SALES MAY HAVE ON WHAT AN ORDINARY PURCHASER WOULD
HAVE PAID FOR THE CLAIMANT'S PROPERTY.  FN3  WE SIMPLY MUST BE WARY
THAT WE GIVE THESE SPARSE SALES LESS WEIGHT THAN WE ACCORD "MARKET"
PRICE, AND TAKE INTO CONSIDERATION THOSE SPECIAL CIRCUMSTANCES IN OTHER
SALES WHICH WOULD NOT HAVE AFFECTED OUR HYPOTHETICAL BUYER.  AND IT IS
HERE THAT OTHER MEANS OF MEASURING VALUE MAY HAVE RELEVANCE - BUT ONLY,
OF COURSE, AS BEARING ON WHAT A PROSPECTIVE PURCHASER WOULD HAVE PAID. 

WE AGREE WITH THE COURT OF CLAIMS THAT IN THIS CASE THERE WAS NO
GREAT LAKES "MARKET" IN THE SENSE DISCUSSED ABOVE.  WE HARDLY THINK
THAT FIVE SALES OF DISSIMILAR VESSELS REQUIRE A FINDING THAT ANY ONE OF
THE VARYING PRICES WOULD HAVE BEEN REPEATED HAD THE MAITLAND BEEN
OFFERED FOR SALE.  AND SO WE ARE IN BASIC AGREEMENT WITH THE COURT
BELOW THAT OTHER MEASURES OF VALUE MAY BE RELEVANT. 

BUT THERE ARE FEW OF THESE SUBSTITUTE STANDARDS WHICH ARE IN FACT OF
ASSISTANCE IN ASSESSING THE VALUE OF THE MAITLAND.  ORIGINAL COST IS
WELL TERMED THE "FALSE STANDARD OF THE PAST"  FN4  WHERE, AS HERE,
PRESENT MARKET VALUE IN NO WAY REFLECTS THAT COST.  SO WITH
REPRODUCTION COST, WHEN NO ONE WOULD THINK OF REPRODUCING THE
PROPERTY.  FN5  AND PAST EARNINGS ARE SIGNIFICANT ONLY WHEN THEY TEND
TO REFLECT FUTURE RETURNS.  FN6  WE SEE NO RELEVANCE IN THE MAITLAND'S
EARNINGS BETWEEN 1916 AND 1932 ON THE ISSUE OF CAPACITY TO EARN AFTER
1942, ON THE GREAT LAKES OR ELSEWHERE.  ON THIS RECORD THEY ARE
ENTIRELY TOO REMOTE TO BEAR ON THE VESSEL'S VALUE WHEN TAKEN.  IT
FOLLOWS THAT THE COURT OF CLAIMS' RELIANCE UPON EARNINGS WAS ERROR. 

WE HAVE SAID THAT THE ABSENCE OF "MARKET" PRICE DOES NOT, IPSO FACTO,
RID ISOLATED CONTEMPORANEOUS SALES OF ALL RELEVANCE.  NONE OF THE
EVIDENCE UPON WHICH THE FINDINGS BELOW WERE BASED IS BEFORE US, BUT IT
SEEMS LIKELY THAT THE DIFFERENCES BETWEEN THE MAITLAND AND SHIPS SOLD
ON THE GREAT LAKES BETWEEN 1936 AND 1942 MAY BE CALCULATED WITH SOME
DEGREE OF ACCURACY.  AND THE CIRCUMSTANCES MAY INDICATE THE RELEVANCE
OF THE MAITLAND'S INSURANCE VALUATION.  SEE RULE 3, ADVISORY BOARD ON
JUST COMPENSATION, 1943 A.M.C. 1443, 1444.  BUT CF. WESTMORELAND C. &
C. CO. V. PUBLIC SERVICE COMM'N, 293 PA. 326, 331, 142 A. 867,
869(1928); REPORT OF PROCEEDINGS OF THE ADVISORY BOARD, SUPRA, PP. 152
153. 

WE HAVE YET TO CONSIDER THE WEIGHT GIVEN TO WHAT THE COURT OF CLAIMS
CALLED FLORIDA "DEMAND."  THE QUESTION IS WHETHER FLORIDA PRICES MAY BE
CONSIDERED AT ALL IN DETERMINING VALUE WHEN THE MAITLAND WAS TAKEN ON
THE GREAT LAKES. 

TWO CASES IN THIS COURT, BOTH INVOLVING THE REQUISITION OF COAL, HAVE
STATED THE RULE THAT WHERE "PRIVATE PROPERTY IS TAKEN FOR PUBLIC USE,
AND THERE IS A MARKET PRICE PREVAILING AT THE TIME AND PLACE OF THE
TAKING, THAT PRICE IS JUST COMPENSATION."  UNITED STATES V. NEW RIVER
COLLIERIES, 262 U.S. 341, 344(1923); DAVIS V. NEWTON COAL CO., 267 U.S.
292, 301(1925).  (EMPHASIS SUPPLIED.)  WE HAVE HELD THAT IN THIS CASE
THERE WAS NO "MARKET" ON THE GREAT LAKES; AND SO THE QUOTED RULE IS IN
TERMS INAPPLICABLE.  BUT NEITHER CAN A FLORIDA MARKET BE ESTABLISHED ON
THE EVIDENCE BEFORE US. AND WE HAVE REMINDED THE COURT BELOW THAT IT
MAY CONSIDER INDIVIDUAL SALES FOR USE ON THE GREAT LAKES FOR WHAT
BEARING THEY MAY HAVE UPON THE MAITLAND'S VALUE. 

WE TAKE IT THAT IN THE VALUATION OF READILY SALABLE ARTICLES, PRICE
AT THE MARKET NEAREST THE TAKING IS, AT LEAST IN THE USUAL CASE, A
PRACTICAL RULE OF THUMB, AND ONE THAT IS MOST LIKELY TO PLACE THE
CLAIMANT IN THE PECUNIARY POSITION HE OCCUPIED BEFORE THE TAKING.  SUCH
CONSIDERATIONS SEEM TO UNDERLIE A SIMILAR RESULT IN THE LAW OF SALES,
AND IN THE GENERAL LAW OF DAMAGES.  THUS, IN GRAND TOWER CO. V.
PHILLIPS, 23 WALL.  471(1874), THE PLAINTIFF HAD PLANNED TO SELL THE
DEFENDANT'S COAL AT THE BEST AVAILABLE MARKET ON THE MISSISSIPPI
BETWEEN CAIRO AND NEW ORLEANS.  YET THE DEFENDANT'S BREACH OF CONTRACT
TO SELL TO PLAINTIFF BROUGHT A "MORE DIRECT" MEASUREMENT OF DAMAGES:
THE NEAREST AVAILABLE MARKET.  SEE HARRIS V. PANAMA R. CO., 58 N.Y.
660(1874); 3 WILLISTON, SALES SECS. 599, 599E (REV. ED. 1948), AND
CASES CITED.    BUT WE DO NOT THINK A SIMILAR RULE PRACTICAL OR FAIR IN
THE REQUISITION OF PROPERTY WHICH MOST OWNERS WOULD, IF POSSIBLE, SELL
WITHOUT GEOGRAPHIC RESTRICTION.  WE DOUBT, FOR EXAMPLE, THAT OWNERS OF
OCEAN LINERS WOULD, UNDER ORDINARY CIRCUMSTANCES, FAIL TO NEGOTIATE
BEYOND THE PORT IN WHICH THE VESSELS LAY - WHETHER OR NOT OCEAN LINERS
ARE "GOODS" AND SUBJECT TO THE LAW OF SALES.  FN7  WERE MARKET
CONDITIONS NORMAL,  FN8  WE COULD HARDLY CALL AN AWARD "JUST
COMPENSATION" UNLESS RELEVANT FOREIGN SALES, IN AVAILABLE MARKETS, WERE
CONSIDERED.  SEE SUPPLEMENTARY RULES 1 AND 3, ADVISORY BOARD ON JUST
COMPENSATION, 1945 A.M.C. 1382, 1383; GLASPY V. CABOT, 135 MASS.
435(1883). 

THE QUESTION IS OF COURSE ONE OF DEGREE, AND WE DO NOT MEAN TO
FORECLOSE THE CONSIDERATION OF EACH CASE UPON ITS FACTS.  OLSON V.
UNITED STATES, 292 U.S. 246, 255(1934), RELIED UPON BELOW, MAKES THIS
CLEAR.  THIS COURT THERE STATED THAT THE "HIGHEST AND MOST PROFITABLE
USE FOR WHICH THE PROPERTY IS ADAPTABLE AND NEEDED OR LIKELY TO BE
NEEDED IN THE REASONABLY NEAR FUTURE IS TO BE CONSIDERED, NOT
NECESSARILY AS THE MEASURE OF VALUE, BUT TO THE FULL EXTENT THAT THE
PROSPECT OF DEMAND FOR SUCH USE AFFECTS THE MARKET VALUE WHILE THE
PROPERTY IS PRIVATELY HELD."  MR. JUSTICE HOLMES HAD EARLIER WARNED
THAT THE PROSPECTIVE USE MAY BE CONSIDERED "ONLY SO FAR AS THE PUBLIC
WOULD HAVE CONSIDERED IT"; THE PRICE WAS NOT TO BE "WHAT A TRIBUNAL AT
A LATER DATE MAY THINK A PURCHASER WOULD HAVE BEEN WISE TO GIVE."  NEW
YORK V. SAGE, 239 U.S. 57, 61(1915). 

ON THE RECORD BEFORE US, THE COURT OF CLAIMS WAS IN ERROR IN
ACCORDING WEIGHT TO FLORIDA VALUES.  WHETHER THE PROBLEM IS ONE OF MORE
PROFITABLE USE OR SIMPLY OF A MORE ADVANTAGEOUS PRICE IN A DISTANT
PORT, THE BURDEN IS ON THE CLAIMANT  FN9  TO SHOW THAT IT IS LIKELY
THAT A PROSPECTIVE FLORIDA BUYER WOULD HAVE INVESTIGATED THE GREAT
LAKES MARKET AND CONSIDERED A SHIP LIKE THE MAITLAND WHILE IT WAS
MOORED TO ITS OHIO DOCK; OR THAT THE ORDINARY GREAT LAKES OWNER WOULD
HAVE UNDERGONE THE TROUBLE AND EXPENSE NECESSARY TO SEND HIS SHIP TO
FLORIDA FOR A POSSIBLE SALE; OR, FINALLY, THAT EITHER OF THESE
POSSIBILITIES WOULD HAVE HAD AN EFFECT ON PRICE HAD THE MAITLAND BEEN
SOLD ON THE GREAT LAKES.  AND THE QUESTION IS WHAT THE ORDINARY
BUSINESSMAN IN THE TRADE WOULD DO, NOT WHAT THE OWNER CLAIMS HE WOULD
DO; A CONTRARY RULE WOULD INVITE PERJURY, AND WOULD SMACK OF THE KIND
OF SPECIAL VALUE WHICH WOULD NOT BE CONSIDERED BY THE ORDINARY
PURCHASER.  SEE GRAND TOWER CO. V. PHILLIPS, SUPRA. 

A BARE RECORD RECITING FIVE SALES, THREE TO THE UNITED STATES, AND
BUT ONE ON THE GREAT LAKES FOR FLORIDA USE - AND THAT AFTER THE WAR'S
END - DOES NOT MEET THE CLAIMANT'S BURDEN.  BUT WE LEAVE THE FINAL
QUESTION OPEN FOR FURTHER CONSIDERATION BELOW.  WE DO NOT MEAN TO
FORECLOSE A FINDING, ON SUBSTANTIAL EVIDENCE NOT NOW BEFORE US, THAT
THERE WERE PROBABILITIES OF SALE IN FLORIDA IN 1942 SUFFICIENT TO
WARRANT CONSIDERATION OF DEMAND THERE IN FIXING THE VALUE OF THE
MAITLAND.  WE MAY ADD THAT THE COURT IS CLEARLY NOT BOUND TO ACCEPT ANY
GEOGRAPHIC PRICE RANGE AT FULL VALUE. 

THIS RECORD, HOWEVER, JUSTIFIES NEITHER OF THE VALUATION MEASURES
ADOPTED BELOW.  THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR
FURTHER PROCEEDINGS IN THE LIGHT OF THIS OPINION.  IT IS SO ORDERED. 

FN1  THE FIRST SALE WAS IN MAY 1941 TO A PRIVATE PARTY WHO HAD
THEREAFTER SPENT $63,820 FOR NECESSARY REPAIRS.  THE SECOND SALE WAS ON
REQUISITION, JULY 28, 1941, BY THE WAR SHIPPING ADMINISTRATION. 

FN2  THESE VESSELS, THE JOSEPH R. PARROTT AND THE ESTRADA PALMA, WERE
REQUISITIONED BY THE WAR SHIPPING ADMINISTRATION IN JUNE, 1942. 

FN3  CONSIDERATIONS WHICH MIGHT AFFECT OUR RULINGS IN THIS CASE IF
THE CAUSE WERE TRIED TO A JURY NEED NOT CONCERN US HERE. 

FN4  E. SCHMALENBACH, FINANZIERUNGEN, PP. 4-6(3D ED., LEIPZIG, 1922),
QUOTED IN 1 BONBRIGHT, VALUATION OF PROPERTY 147, N. 9(1937).  "IT IS
THE PROPERTY AND NOT THE COST OF IT THAT IS PROTECTED BY THE FIFTH
AMENDMENT."  BROOKS-SCANLON CORP. V. UNITED STATES, 265 U.S. 106,
123(1924).  BUT SEE BONBRIGHT, SUPRA, CH. VIII. 

FN5  SEE 1 REPORT OF PROCEEDINGS OF THE ADVISORY BOARD ON JUST
COMPENSATION 170(UNITED STATES MARITIME COMMISSION, WAR SHIPPING
ADMINISTRATION, MIMEOGRAPHED, 1943).  CF. STANDARD OIL CO. V. SOUTHERN
PACIFIC CO., 268 U.S. 146(1925); THE HISKO, 54 F.2D 540(1931). 

FN6  SEE ORGEL, VALUATION UNDER EMINENT DOMAIN, CH. XIV (1936); 2
NICHOLS, EMINENT DOMAIN SEC. 446(2D ED. 1917); THE I.C. WHITE, 295 F.
593, 595, 596(1924).  AS TO THE SEPARATION WHICH MUST BE MADE, IN ANY
CASE, BETWEEN THE VALUE OF THE PROPERTY AND THE VALUE OF THE CLAIMANT'S
OWN BUSINESS SKILL, SEE KIMBALL LAUNDRY CO. V. UNITED STATES, 338 U.S.
1(1949). 

FN7  SEE RIVARA V. STEWART & CO., 241 N.Y. 259, 264, 149 N.E. 851,
852(1925), PER CARDOZO, J.; BEHNKE V. BEDE SHIPPING CO. (1927) 1 K.B.
649.  CF. MEERING V. DUKE, 6 L.J. (O.S.)  211(K.B. 1828)(STAMP ACT). 

FN8  BUT SEE REPORT OF PROCEEDINGS OF THE ADVISORY BOARD, NOTE 5,
SUPRA, PP. 64-71. 

FN9  UNITED STATES EX REL. T.V.A. V. POWELSON, 319 U.S. 266,
273(1943). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

EVEN THOUGH I JOIN THE COURT'S OPINION IN ITS GENERAL DIRECTION, THE
TREACHEROUS NATURE OF THE SUBJECT MATTER MAKES APPROPRIATE A SEPARATE
STATEMENT OF VIEWS. 

RESORT TO THE CONVENTIONAL FORMULAS FOR ASCERTAINING JUST
COMPENSATION FOR THE TAKING OF PROPERTY RARELY BOUGHT AND SOLD, AND
HAVING THEREFORE NO RECOGNIZED MARKET VALUE, DOES NOT YIELD FRUITFUL
RESULTS.  THE VARIABLES ARE TOO MANY TO PERMIT OF ANYTHING EXCEPT AN
INFORMED JUDGMENT.  EVERYTHING, THEREFORE, TURNS ON THE PROCESS OF
JUDGMENT TO THE END THAT JUDGMENT BE NOT BASED ON STANDARDS TOO
DIFFICULT OF APPLICATION OR EVIDENCE TOO TENUOUS FOR SOLID INFERENCE. 

IT IS THIS COURT'S DUTY TO LAY DOWN STANDARDS FOR APPLICATION BY THE
LOWER COURTS.  BUT SINCE WE ARE CONCERNED WITH ASCERTAINMENT OF RATHER
ELUSIVE VALUES, THOSE WHOSE PRIMARY DUTY IT IS TO MAKE THESE ESTIMATES
OUGHT NOT TO BE CRAMPED BY RULES THAT ARE TOO RIGID AND TOO
ARTIFICIAL.  IF THE QUESTIONS PRESENTED TO THIS COURT IN A PARTICULAR
CASE REALLY TURN, AS THEY DO HERE, ON THE RELEVANCE OF DATA AND THE
REASONABLENESS OF THE INFERENCES DRAWN FROM THEM IN ARRIVING AT JUST
COMPENSATION, THE TRAINING AND EXPERIENCE OF THE FACT-FINDERS BECOME
IMPORTANT. 

IF A JURY IS TO MAKE THE VALUATION THE AREA WITHIN WHICH SPECULATION
MAY IN THE NATURE OF THINGS ROAM AT LARGE SHOULD BE AS NARROWLY
CONFINED AS POSSIBLE.  SEE KIMBALL LAUNDRY CO. V. UNITED STATES, 338
U.S. 1, 20.  BUT WHEN THE VALUER IS A COURT AND PARTICULARLY THE
TRIBUNAL THAT CONSISTS OF JUDGES TO WHOM MAY FAIRLY BE ATTRIBUTED THE
EXPERTNESS THAT COMES FROM FREQUENT DEALING WITH THE MORE ELUSIVE
PROBLEMS OF VALUE, IT SEEMS DESIRABLE FOR THIS COURT TO ALLOW SUCH
TRIBUNAL CONSIDERABLE FREEDOM FROM HARD AND FAST RULES IN DETERMINING
WHAT DATA ARE RELEVANT AND WHAT SIGNIFICANCE MAY BE DRAWN FROM THEM. 
BARRING OBVIOUSLY WRONG CRITERIA, OR FINDINGS BASELESS IN PROOF,
EXPERIENCE COUNSELS EMPIRICISM IN DEALING WITH THESE PROBLEMS.  AND
EMPIRICISM SUGGESTS SAILING AS CLOSE TO THE RECORD OF A PARTICULAR CASE
AS POSSIBLE.  ONLY THUS SHALL WE AVOID ABSTRACT PRONOUNCEMENTS BOUND TO
DISTORT OR TO BE DISTORTED BY THE CASE-BY-CASE ADJUDICATORY PROCESS
ESPECIALLY APPROPRIATE IN PROBLEMS OF THIS NATURE.  EITHER LIP-SERVICE
WILL BE PAID SUCH FORMULAS WHILE DECISIONS ARE ROOTED IN CONSIDERATIONS
OUTSIDE THEM, OR FORMULAS NOT FITTING PRACTICAL CIRCUMSTANCES WILL
ACHIEVE IMPRACTICAL RESULTS. 

IN THE LIGHT OF THIS GENERAL APPROACH THE CASE BEFORE THE COURT COMES
DOWN TO THIS: 

1.  THE STARTING POINT OF THE COMPUTATION BY THE COURT OF CLAIMS OF
THE AMOUNT TO BE AWARDED FOR THE GOVERNMENT'S TAKING OF THE MAITLAND
WAS CAPITALIZATION OF ITS EARNINGS BETWEEN 1916 AND 1932.  WHILE WE DO
NOT HAVE THE EVIDENCE THAT WAS BEFORE THE COURT BELOW, ITS FINDINGS
DISCLOSE NO REASONABLE RELATION BETWEEN SUCH EARNINGS AND THE VALUE OF
THE VESSEL IN 1942, THE YEAR OF THE TAKING, WHETHER FOR USE ON THE
GREAT LAKES OR IN FLORIDA WATERS.  TO PERMIT SUCH DATA TO SERVE AS A
SPRINGBOARD FOR JUDGMENT IS TO LEAVE TOO MUCH TEMPTATION FOR UNBRIDLED
SPECULATION EVEN BY EXPERIENCED JUDGES. 

2.  IN THESE DAYS OF QUICK MOBILITY BOTH FOR PERSONS AND PROPERTY IT
WOULD BE AN UNJUSTIFIABLY ARTIFICIAL RULE TO CONFINE THE WORTH OF
MOBILE PROPERTY, AS WAS THE MAITLAND, TO PLACE VALUE.  OF COURSE IF
THERE WAS AN ACTIVE MARKET FOR PROPERTY TO BE CONDEMNED AT ABOUT THE
TIME AND PLACE OF THE TAKING, EVIDENCE OF DEMAND FOR SPECIAL USES, OR
AT OTHER PLACES, WOULD NOT BE HELPFUL IN SEEKING THE GENERAL VALUE OF
THE PROPERTY AS AGAINST SOME UNUSUAL SALABILITY OF THE PROPERTY,
UNUSUAL EITHER BY REASON OF LOCATION OR AS A MATTER OF USE.  SUCH
EVIDENCE OF ATYPICAL DEMAND SHOULD BE EXCLUDED NOT BECAUSE IT HAS NO
LOGICAL RELEVANCE BUT BECAUSE SUCH PRACTICAL SIGNIFICANCE AS IT HAS IS
ALREADY REFLECTED IN CURRENT MARKET PRICES.  BUT HERE IT WAS FOUND THAT
THERE WAS IN FACT NO MARKET ON THE GREAT LAKES FOR VESSELS LIKE THE
MAITLAND, AND, SINCE WHAT THE UNITED STATES GOT HAD TO BE TRANSLATED
INTO DOLLARS AND CENTS, THERE IS NO REASON IN SENSE AND THEREFORE NONE
IN LAW FOR EXCLUDING FROM CONSIDERATION THAT THERE WAS A DEMAND FOR
VESSELS SUCH AS THE MAITLAND FOR USE AS A CAR FERRY BETWEEN FLORIDA AND
CUBA. 

3.  BUT SUCH EVIDENCE MUST BE CRITICALLY USED.  IT IS ONE THING TO
EXCLUDE SUCH EVIDENCE OF DEMAND AT A DISTANT PLACE TO WHICH THE
PROPERTY WAS TRANSFERABLE AND QUITE ANOTHER TO ASSUME THAT A FINDING
THAT IN 1942 THERE WAS SUCH A DEMAND IS PROOF POSITIVE THAT THE
MAITLAND WOULD HAVE FOUND A MARKET IN FLORIDA AND TO BASE VALUATION ON
SUCH ASSUMPTION.  PARTICULARLY IS THIS TRUE WHEN THE COURT BELOW FOUND
THAT IT WOULD HAVE COST AT LEAST $115,000 TO TRANSPORT THE MAITLAND TO
FLORIDA WATERS AND TO OUTFIT IT FOR SALT-WATER USE.  THE AMOUNT OF THIS
EXPENDITURE IS MORE THAN THE ARITHMETIC MEASURE OF THE DIFFERENCE IN
VALUE BETWEEN A VESSEL LOCATED IN FLORIDA AND ONE ON THE GREAT LAKES. 
THE RISK TO A PROFITABLE VENTURE THAT THE $115,000 EXPENDITURE IMPLIES
CASTS DOUBT ON THE LIKELIHOOD OF THE MAITLAND'S USE IN THE FLORIDA
TRADE.  FOR THE GREATER THE RISK THE SMALLER THE IMPACT OF THE
OPPORTUNITIES OF THE DISTANT MARKET.  THE SHORT OF THE MATTER IS THAT
FOR ITS DIFFICULT TASK OF VALUING THE COURT OF CLAIMS SHOULD NOT BE
CONFINED EITHER TO ACCEPTANCE OR REJECTION OF THE FLORIDA DEMAND IN
TOTO.  LIKE MOST PROBLEMS IN THE LAW IT IS A MATTER OF DEGREE. 

4.  THIS COURT SHOULD NOT GO BEYOND INDICATING THE BROAD LINES FOR
ADJUDICATION BY THE COURT OF CLAIMS, LEAVING TO THAT COURT DISCRETION
APPROPRIATE TO ITS EXPERIENCE IN APPLYING THE INDICATED STANDARDS TO
THE FACTS BEFORE IT.  THE ANALYSIS WE HAVE OUTLINED MUST BE FITTED TO
FACTS NOT NOW BEFORE US.  FN1  I AM NOT PREPARED THEREFORE TO SPECIFY
AS A MATTER OF LAW WHAT NUMBER OF LOGICALLY RELEVANT SALES DO OR DO NOT
MEET THE CLAIMANT'S BURDEN.  AFTER THE COURT OF CLAIMS HAS MADE
ADDITIONAL FINDINGS IN THE LIGHT OF THIS COURT'S DECISION IT WILL BE
TIME ENOUGH TO CONSIDER WHETHER THE DATA BEFORE IT ARE TOO TENUOUS TO
PERMIT SOLID INFERENCES FROM THEM, AS SET FORTH IN APPROPRIATE
FINDINGS, REGARDING THE WEIGHT WHICH THE COURT OF CLAIMS MAY ACCORD TO
THE FLORIDA DEMAND. 

FN1  THE EVIDENCE IN THIS CASE COULD OF COURSE HAVE BEEN INCLUDED IN
THE RECORD BROUGHT HERE UNDER THE ACT OF MAY 22, 1939, 53 STAT. 752,
AMENDING SEC. 3(B) OF THE ACT OF FEBRUARY 13, 1925, 43 STAT. 936, 939. 
SEE ALSO RULE 41 OF THIS COURT. 
..END :

















WILMETTE PARK DIST. V. CAMPBELL, 338 U.S. 411 


NO. 75.  ARGUED NOVEMBER 15-16, 1949.  - DECIDED DECEMBER 12, 1949.  -
172 F.2D 885, AFFIRMED. 


PETITIONER, AN INSTRUMENTALITY OF A STATE, OPERATED ON A NON-PROFIT
BASIS A PUBLIC BATHING BEACH TO WHICH ALL PERSONS ENTERING WERE CHARGED
ADMISSION.  FOR FAILURE TO COLLECT AND PAY THE TAX IMPOSED BY SEC.
1700(A) OF THE INTERNAL REVENUE CODE ON CHARGES FOR "ADMISSION TO ANY
PLACE," PENALTIES WERE ASSESSED AGAINST PETITIONER UNDER SEC. 1718 OF
THE CODE.  HELD: 

1.  HAVING PAID THE PENALTIES FROM ITS GENERAL REVENUE FUND,
PETITIONER'S FINANCIAL INTEREST WAS SUFFICIENT TO GIVE IT STANDING TO
SUE FOR REFUND.  P. 414. 

2.  WITHIN THE MEANING OF SEC. 1700(A), THE CHARGE MADE BY PETITIONER
FOR ADMISSION TO THE BEACH WAS AN "AMOUNT PAID FOR ADMISSION TO ANY
PLACE," AND THAT SECTION WAS APPLICABLE.  PP. 414-419. 

(A)  CONGRESS DID NOT INTEND BY SEC. 1700(A) TO TAX ONLY ADMISSIONS
TO "SPECTATOR ENTERTAINMENTS."  P. 415. 

(B)  THE BEACH AREA HERE INVOLVED WAS A "PLACE" WITHIN THE MEANING OF
SEC. 1700(A)(1).  PP. 415-416. 

(C)  CONGRESS DID NOT INTEND TO EXEMPT NON-PROFIT OPERATIONS FROM THE
ADMISSIONS TAX IMPOSED BY SEC. 1700(A) OF THE CODE, NOTWITHSTANDING
CERTAIN EXEMPTIONS THAT HAD PREVIOUSLY BEEN ALLOWED.  P. 416. 

(D)  THAT ACTIVITIES CONDUCTED BY A MUNICIPALITY WERE NOT INTENDED TO
BE EXEMPT FROM THE ADMISSIONS TAX IS INDICATED BY A LONG-CONTINUED
ADMINISTRATIVE CONSTRUCTION, EXPRESSLY DENYING SUCH EXEMPTION, WHICH
HAS BEEN FOLLOWED BY REPEATED REENACTMENT OF THE RELEVANT LANGUAGE
WITHOUT CHANGE.  PP. 416-418. 

(E)  THE FACT THAT PETITIONER'S BEACH PATRONS MAKE USE OF A BEACH AND
ITS FACILITIES, AND THAT ITS ADMISSION CHARGE MAY BY LOCAL LAW BE
CONSIDERED A "USE TAX," DOES NOT RENDER SEC. 1700(A) INAPPLICABLE.  PP.
418-419. 

3.  THE APPLICATION OF THE ADMISSIONS TAX IN CONNECTION WITH THIS
ACTIVITY OF THE PETITIONER, THOUGH AN INSTRUMENTALITY OF A STATE, DOES
NOT VIOLATE THE FEDERAL CONSTITUTION.  PP. 419-420. 

WILMETTE PARK DISTRICT V. CAMPBELL, COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN A SUIT FOR REFUND OF PENALTIES ASSESSED FOR FAILURE TO COLLECT
FEDERAL ADMISSIONS TAX, THE DISTRICT COURT ENTERED JUDGMENT FOR
PETITIONER.  76 F.SUPP.  924.  THE COURT OF APPEALS REVERSED.  172 F.2D
885.  THIS COURT GRANTED CERTIORARI.  337 U.S. 937.  AFFIRMED, P. 420. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT.  SECTION
1700(A)(1) OF THE INTERNAL REVENUE CODE, AS AMENDED, PROVIDES FOR THE
IMPOSITION, EXCEPT AS TO CERTAIN CLASSES OF PERSONS UNDER CIRCUMSTANCES
NOT IMPORTANT HERE, OF "A TAX OF 1 CENT FOR EACH 10 CENTS OR FRACTION
THEREOF OF THE AMOUNT PAID FOR ADMISSION TO ANY PLACE, INCLUDING
ADMISSION BY SEASON TICKET OR SUBSCRIPTION."  FN1 PARAGRAPH (2) OF THE
SUBSECTION DECLARES THAT THE TAX "SHALL BE PAID BY THE PERSON PAYING
FOR SUCH ADMISSION."  AND SEC. 1715 REQUIRES THAT "EVERY PERSON
RECEIVING ANY PAYMENTS FOR ADMISSION  ...  SUBJECT TO THE TAX IMPOSED
BY SECTION 1700  ...  SHALL COLLECT THE AMOUNT THEREOF FROM THE PERSON
MAKING SUCH PAYMENTS." 

THIS SUIT, BROUGHT TO RECOVER PENALTIES PAID BY PETITIONER FOR
NONCOLLECTION OF FEDERAL ADMISSIONS TAX, PRESENTS TWO QUESTIONS FOR
DETERMINATION:  WHETHER SEC. 1700(A) IS APPLICABLE TO PAID ADMITTANCES
TO A BATHING BEACH OPERATED WITHOUT PURPOSE OF GAIN BY A LOCAL PARK
DISTRICT OF ILLINOIS; AND, IF THE CODE PROVISION IS TO BE SO
INTERPRETED, WHETHER THE IMPOSITION OF ADMISSIONS TAX IN CONNECTION
WITH SUCH STATE ACTIVITY IS WITHIN THE CONSTITUTIONAL POWER OF
CONGRESS. 

PETITIONER IS WILMETTE PARK DISTRICT, A BODY POLITIC AND CORPORATE
LOCATED WITHIN THE VILLAGE OF WILMETTE, COOK COUNTY, ILLINOIS. 
ORGANIZED AND ADMINISTERED PURSUANT TO ILLINOIS STATUTES, THE DISTRICT
INCLUDES WITHIN ITS JURISDICTION FOUR PARK AREAS.  THE LARGEST,
WASHINGTON PARK, EXTENDS FOR APPROXIMATELY THREE-FOURTHS OF A MILE
ALONG LAKE MICHIGAN AND WAS ACQUIRED PARTLY BY GRANT FROM THE STATE OF
ILLINOIS, PARTLY BY PURCHASE, AND PARTLY BY EXERCISE OF THE POWER OF
EMINENT DOMAIN.  AT THE NORTH END OF WASHINGTON PARK, PETITIONER HAS
OPERATED A PUBLIC BATHING BEACH DURING THE SUMMER MONTHS FOR MANY
YEARS, UNDER AUTHORITY CONFERRED BY THE ILLINOIS LEGISLATURE.  THE
BEACH HAS BEEN USED PRIMARILY BY RESIDENTS OF THE DISTRICT, BUT ALSO
HAS BEEN OPEN TO NONRESIDENTS. 

AMONG THE FACILITIES WHICH THE DISTRICT PROVIDED AT THE BEACH DURING
THE PERIOD UNDER REVIEW WERE A BATH HOUSE, AUTOMOBILE PARKING AREA,
LIFE-SAVING EQUIPMENT, FLOOD LIGHTING, DRINKING FOUNTAINS, SHOWERS,
SPECTATOR BENCHES, BICYCLE RACKS, FIRST AID, AND SUPPLIES.  THE
OPERATION AND MAINTENANCE OF THE AREA AND ITS VARIOUS SERVICES WERE
SOLELY BY THE DISTRICT, WHICH EMPLOYED THE NECESSARY PERSONNEL. 

PETITIONER CHARGED ALL PERSONS FOR ADMITTANCE TO THE BEACH.  ITS
CHARGES WERE OF TWO TYPES:  A DAILY FEE OF FIFTY CENTS ON WEEKDAYS AND
ONE DOLLAR ON SATURDAYS, SUNDAYS AND HOLIDAYS, FOR WHICH NO TICKET WAS
ISSUED; AND A FLAT RATE FOR A SEASON TICKET WHICH COULD BE PURCHASED ON
AN INDIVIDUAL OR FAMILY BASIS.  THESE CHARGES WERE MADE TO COVER THE
EXPENSE OF MAINTENANCE AND OPERATION OF THE BEACH AND OF SOME CAPITAL
IMPROVEMENTS.  OVER THE YEARS THE CHARGES WERE INTENDED MERELY TO
APPROXIMATE THESE COSTS AND NOT TO PRODUCE NET INCOME OR PROFIT TO
PETITIONER; DURING THE PERIOD 1940-1944 THE ACCOUNTS OF THE BEACH,
MAINTAINED ON A CASH RECEIPTS AND DISBURSEMENTS BASIS, REFLECTED AN
EXCESS OF RECEIPTS OVER EXPENDITURES OF $42.11. 

IN JULY 1941 THE COLLECTOR NOTIFIED PETITIONER TO COLLECT A TAX OF 10
PER CENT ON ALL TICKETS TO THE BEACH SOLD ON OR AFTER JULY 25 OF THAT
YEAR.  PETITIONER HAD NOT PREVIOUSLY COLLECTED SUCH TAXES, AND IT
REFUSED TO DO SO AFTER THE COLLECTOR'S NOTICE.  SUBSEQUENTLY THE
COMMISSIONER UNDER SEC. 1718 OF THE CODE ASSESSED OVER PETITIONER'S
PROTEST PENALTIES IN THE AMOUNT OF THE TAX WHICH THE COMMISSIONER
CLAIMED SHOULD HAVE BEEN COLLECTED UNDER SEC. 1700(A) FROM JULY 25,
1941 THROUGH 1945, PLUS INTEREST AND SUMS DUE UNDER SEC. 3655(B) OF THE
CODE FOR FAILURE TO PAY THE TAX ON DEMAND.  THESE PENALTIES AMOUNTED TO
$6,139.93 AND WERE PAID OUT OF PETITIONER'S GENERAL FUNDS RAISED BY
PROPERTY TAXES. 

PETITIONER FILED TIMELY CLAIMS FOR REFUND WHICH WERE REJECTED, AND IN
1946 BROUGHT THIS SUIT AGAINST THE COLLECTOR.  THE DISTRICT COURT
ENTERED JUDGMENT FOR PETITIONER.  76 F.SUPP.  924.  FN2 THE COURT OF
APPEALS FOR THE SEVENTH CIRCUIT REVERSED.  172 F.2D 885.  BECAUSE THE
QUESTIONS PRESENTED HAVE IMPORTANCE IN THE ADMINISTRATION OF THE
ADMISSIONS TAX SECTIONS OF THE CODE, WE GRANTED CERTIORARI.  337 U.S.
937. 

FIRST.  THE GOVERNMENT RAISES NO ISSUE AS TO PETITIONER'S STANDING TO
SUE FOR REFUND.  AS RECOVERY IS HERE SOUGHT OF PENALTIES PAID FROM
PETITIONER'S GENERAL REVENUE FUND AFTER ITS FAILURE TO COLLECT THE TAX,
WE DEEM PETITIONER'S FINANCIAL INTEREST CLEARLY SUFFICIENT.  FN3 

SECOND.  SECTION 1700(A) IS APPLICABLE IF THE CHARGE MADE BY
PETITIONER FOR ADMITTANCE TO THE BEACH WAS, WITHIN THE MEANING OF THE
STATUTORY LANGUAGE, AN "AMOUNT PAID FOR ADMISSION TO ANY PLACE." 

THE WORDS OF THE PROVISION WHEN TAKEN IN THEIR ORDINARY AND FAMILIAR
MEANING REFLECT A LEGISLATIVE PURPOSE OF COMPREHENSIVE APPLICATION.  BY
ITS TERMS THE SECTION EMBRACES EVERY PAYMENT MADE IN ORDER TO SECURE
ADMITTANCE TO A SPECIFIC LOCATION.  AND THIS PURPOSE OF BROAD
APPLICATION IS NOT LESS CERTAIN BECAUSE OF ANYTHING IN THE LEGISLATIVE
HISTORY OF THE INITIAL ADOPTION OF THAT LANGUAGE.  FN4  IN THIS VIEW IT
IS UNNECESSARY TO CONSIDER WHETHER PETITIONER'S BEACH AREA CAN BE
DISTINGUISHED FROM A "SPECTATOR ENTERTAINMENT," FOR WE ARE UNABLE TO
ACCEPT PETITIONER'S ARGUMENT THAT CONGRESS INTENDED IN SEC. 1700(A) TO
TAX ONLY ADMISSIONS TO SUCH EVENTS.  FN5 

WE THINK IT CLEAR THAT A BEACH AREA MAY BE A "PLACE" IN THE SENSE OF
SEC. 1700(A)(1).  PETITIONER'S BEACH PARK, INCLUDING THE ADJACENT SHOAL
WATERS, WAS POLICED AND LIGHTED; THE LAND AREA WAS DEFINED, AND
ENTRANCE WAS THROUGH GATES.  A PAYMENT WAS MADE BY PATRONS OF THE BEACH
AS THE CONDITION OF ADMITTANCE TO A SPECIFIC AREA WITH DEFINITE
PHYSICAL LIMITS.  THUS THE FEE WHICH PETITIONER CHARGED WAS "PAID FOR
ADMISSION" TO A "PLACE" AS THOSE TERMS ARE USED IN SEC. 1700(A)(1). 
FN6 

WE CANNOT AGREE WITH PETITIONER'S SUGGESTION THAT CONGRESS INTENDED
TO EXEMPT FROM TAX ADMISSIONS TO ANY ACTIVITY NOT CONDUCTED FOR GAIN. 
TERMINATION ON OCTOBER 1, 1941 PURSUANT TO THE REVENUE ACT OF 1941,
SEC. 541(B).  55 STAT. 687, 710.  IN SEC. 1701 CONGRESS EXEMPTED
ADMISSIONS TO CERTAIN CLASSES OF EVENTS AND ADMISSIONS ALL THE PROCEEDS
OF WHICH INURED EXCLUSIVELY TO THE BENEFIT OF DESIGNATED CLASSES OF
PERSONS OR ORGANIZATIONS.  BUT SINCE CONGRESS DID NOT EXEMPT ALL
ACTIVITIES NOT FOR PROFIT AS IT READILY MIGHT HAVE DONE, IT APPEARS
THAT ADMISSIONS TO SUCH ACTIVITIES ARE NOT FOR THAT REASON OUTSIDE THE
ADMISSIONS TAX SCHEME.  EXMOOR COUNTRY CLUB V. UNITED STATES, 119 F.2D
961(C.A.7TH CIR., 1941). 

NOR IS THERE GREATER FORCE IN PETITIONER'S CONTENTION THAT THE
ADMISSIONS TAX WAS NOT INTENDED TO APPLY IN THE CASE OF ACTIVITIES
CONDUCTED BY A MUNICIPALITY.  IN INTERPRETING FEDERAL REVENUE MEASURES
EXPRESSED IN TERMS OF GENERAL APPLICATION, THIS COURT HAS ORDINARILY
FOUND THEM OPERATIVE IN THE CASE OF STATE ACTIVITIES EVEN THOUGH STATES
WERE NOT EXPRESSLY INDICATED AS SUBJECTS OF TAX.  SEE CONCURRING
OPINION IN NEW YORK V. UNITED STATES, 326 U.S. 572, 584 AND N.
3(1946).  AND IN ALLEN V. REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA,
304 U.S. 439(1938), IT WAS DECIDED THAT THE ADMISSIONS TAX LAW WAS
APPLICABLE IN CONNECTION WITH ACTIVITIES CARRIED ON BY AN AGENCY OF A
STATE, ALTHOUGH IT DOES NOT APPEAR THAT THE ISSUE OF LEGISLATIVE
PURPOSE WAS THERE DISPUTED.  HOWEVER, WE ARE UNABLE TO DISCOVER THAT
THERE HAS BEEN ANY DESIGN TO EXEMPT ADMISSIONS TO MUNICIPALLY CONDUCTED
ACTIVITIES.  FN7  WE REGARD THE INTERPRETATIVE ISSUE AS CONTROLLED BY A
LONG-CONTINUED ADMINISTRATIVE CONSTRUCTION, EXPRESSLY DENYING SUCH
EXEMPTION,  FN8  WHICH HAS BEEN FOLLOWED BY REPEATED REENACTMENT OF THE
RELEVANT LANGUAGE WITHOUT CHANGE.  FN9  CF. HELVERING V. WINMILL, 305
U.S. 79(1938). 

FINALLY, SEC. 1700(A)(1) IS NOT RENDERED INAPPLICABLE BECAUSE BEACH
PATRONS MAKE USE OF A BEACH AND ITS FACILITIES, THUS AFFORDING
CHARACTERIZATION OF THE ADMISSION FEE AS A "USE CHARGE."  FEW IF ANY
ADMISSIONS TAXABLE UNDER SEC. 1700(A) ARE NOT ACCOMPANIED BY A USE OF
THE PROPERTY OR EQUIPMENT TO WHICH THE ADMITTEE'S LICENSE EXTENDS. 
ALTHOUGH TABLE ACCOMMODATIONS FOR WHICH A CHARGE IS MADE ARE USUALLY
THOUGHT OF AS OBJECTS OF A PATRON'S USE, YET CONGRESS IN SEC. 1704 OF
THE CODE HAS DECLARED THAT FOR PURPOSES OF THE ADMISSIONS TAX LAW A
CHARGE FOR THEIR USE MUST BE TREATED AS A CHARGE FOR ADMISSION AND NOT
AS A RENTAL CHARGE.  A SIMILAR RESULT MUST OBTAIN WHEN PAYMENT IS
PREREQUISITE, AS IT WAS AT PETITIONER'S BEACH, TO BOTH ADMISSION TO AND
USE OF A SPECIFIC AREA.  CHIMNEY ROCK CO. V. UNITED STATES, 63 CT. CL.
660(1927), CERT. DENIED, 275 U.S. 552(1927); TWIN FALLS NATATORIUM V.
UNITED STATES, 22 F.2D 308(D. IDAHO, 1927).  FN10 

THIS TRIAL COURT, IN ALLOWING JUDGMENT FOR PETITIONER IN VIEW OF THE
USE MADE OF THE BEACH, CONSIDERED THE FEE A "USE TAX."  BUT IF THERE IS
NO TAX EXEMPTION FOR ADMISSIONS TO A MUNICIPALLY CONDUCTED ACTIVITY,
THEN A MUNICIPALITY MAY NOT ESCAPE TAX BY CLAIMING THAT ITS ADMISSION
FEE IS A "USE TAX" WHEN A SIMILAR PRIVATE BUSINESS COULD NOT ADVANCE
SUCH CLAIM.  NOR DOES IT MATTER THAT PETITIONER'S AUTHORITY TO MAKE ANY
CHARGE TO BEACH PATRONS  IS DERIVED FROM A STATUTE WHICH CONTEMPLATES A
CHARGE FOR "USE."  ILL. REV. STAT., C. 105, SEC. 8-7D (1947).  THE
APPLICATION OF THE FEDERAL ADMISSIONS TAX STATUTE IS NOT CONTROLLED BY
THE CHARACTERIZATION OF PETITIONER'S FEE BY LOCAL LAW.  CF. MORGAN V.
COMMISSIONER, 309 U.S. 78, 81(1940). 

WE CONCLUDE THAT SEC. 1700(A) IS APPLICABLE. 

THIRD.  THE CONSTITUTIONALITY OF ADMISSIONS TAX LEVIED IN CONNECTION
WITH AN ACTIVITY OF A STATE INSTRUMENTALITY WAS BEFORE THIS COURT IN
ALLEN V. REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, 304 U.S.
439(1938).  WE THERE FOUND NO CONSTITUTIONAL INHIBITION AGAINST A
NONDISCRIMINATORY IMPOSITION OF SUCH TAX ON ADMISSIONS TO AN ATHLETIC
EXHIBITION CONDUCTED IN CONNECTION WITH A STATE EDUCATIONAL
ADMINISTRATION AND IN THE PERFORMANCE OF A GOVERNMENTAL FUNCTION. 

THE ALLEN DECISION FOLLOWED SOON AFTER HELVERING V. GERHARDT, 304
U.S. 405(1938), WHICH DECLARED TWO PRINCIPLES LIMITING STATE IMMUNITY
FROM FEDERAL TAXATION.  ID. AT 419.  THE FIRST OF THESE, INVOKED IN THE
ALLEN DECISION, WAS DEPENDENT UPON THE NATURE OF THE FUNCTION BEING
PERFORMED BY THE STATE AGENCY AND EXCLUDED FROM IMMUNITY SUCH
ACTIVITIES AS MIGHT BE THOUGHT NOT ESSENTIAL FOR THE PRESERVATION OF
STATE GOVERNMENT.  WE NEED NOT CONSIDER HERE THE APPLICABILITY OF THAT
DOCTRINE, FOR THE PETITIONER'S ASSERTION OF IMMUNITY MUST BE REJECTED
ON THE SECOND RESTRICTIVE PRINCIPLE REAFFIRMED IN THE GERHARDT
DECISION.  THIS "PRINCIPLE, EXEMPLIFIED BY THOSE CASES WHERE THE TAX
LAID UPON INDIVIDUALS AFFECTS THE STATE ONLY AS THE BURDEN IS PASSED ON
TO IT BY THE TAXPAYER, FORBIDS RECOGNITION OF THE IMMUNITY WHEN THE
BURDEN ON THE STATE IS SO SPECULATIVE AND UNCERTAIN THAT IF ALLOWED IT
WOULD RESTRICT THE FEDERAL TAXING POWER WITHOUT AFFORDING ANY
CORRESPONDING TANGIBLE PROTECTION TO THE STATE GOVERNMENT."  304 U.S.
AT 419-420.  ACCORDING TO THIS PRINCIPLE, THE STATE "IS NOT NECESSARILY
PROTECTED FROM A TAX WHICH WELL MAY BE SUBSTANTIALLY OR ENTIRELY
ABSORBED BY PRIVATE PERSONS."  ID. AT 420. 

WHILE THE ALLEN DECISION ASSUMED THAT THE ADMISSIONS TAX THERE
IMPOSED WAS A DIRECT BURDEN ON THE STATE, THAT ASSUMPTION WAS REQUIRED
ONLY FOR THE PURPOSE OF CONSIDERING THE FIRST PRINCIPLE OF LIMITATION
OF IMMUNITY AS FORMULATED IN THE GERHARDT CASE.  SUCH AN ASSUMPTION
NEED NOT BE MADE HERE.  IT IS TRUE, OF COURSE, THAT UNLESS THERE IS A
SHIFT IN DEMAND FOR ADMISSIONS TO PETITIONER'S BEACH, IMPOSITION OF THE
TAX MAY TO AN UNDETERMINABLE EXTENT ADVERSELY AFFECT THE VOLUME OF
ADMISSIONS.  FN11  INSOFAR AS THIS OCCURS, THE SERVICES OF THE DISTRICT
WILL BE LESS WIDELY AVAILABLE AND ITS REVENUES FROM BEACH ADMISSIONS
WILL BE REDUCED.  BUT ADMISSIONS TAX, WHICH IS "PAID BY THE PERSON
PAYING FOR SUCH ADMISSION," IS SO IMPOSED AS TO FACILITATE ABSORPTION
BY PATRONS OF THE BEACH RATHER THAN BY THE DISTRICT, AND WE HAVE NO
EVIDENCE THAT THE DISTRICT WILL BE FORCED TO ABSORB THE TAX IN ORDER TO
MAINTAIN THE VOLUME OF ITS REVENUES AND THE AVAILABILITY OF ITS
BENEFITS.  CF. METCALF & EDDY V. MITCHELL, 269 U.S. 514, 526(1926). 
"THE MERE FACT THAT THE ECONOMIC BURDEN OF SUCH TAXES MAY BE PASSED ON
TO A STATE GOVERNMENT AND THUS INCREASE TO SOME EXTENT, HERE WHOLLY
CONJECTURAL, THE EXPENSE OF ITS OPERATION, INFRINGES NO CONSTITUTIONAL
IMMUNITY.  SUCH BURDENS ARE BUT NORMAL INCIDENTS OF THE ORGANIZATION
WITHIN THE SAME TERRITORY OF TWO GOVERNMENTS, EACH POSSESSED OF THE
TAXING POWER."  HELVERING V. GERHARDT, SUPRA, 304 U.S. AT 422.    AS IT
FOLLOWS THAT THERE IS NO CONSTITUTIONAL OBJECTION TO THE TAX PENALTIES
ASSESSED AGAINST PETITIONER, THE DECISION OF THE COURT OF APPEALS MUST
BE AFFIRMED. 

FN1  A WAR TAX RATE OF 1 CENT FOR EACH 5 CENTS OR MAJOR FRACTION
THEREOF HAS BEEN IN EFFECT SINCE APRIL 1, 1944, PURSUANT TO REVENUE ACT
OF 1943, SEC. 302(A).  58 STAT. 21, 61(1944). 

FN2  THE DISTRICT COURT ALLOWED RECOVERY ONLY OF PAYMENTS MADE SINCE
JANUARY 1, 1945, WHEN RESPONDENT TOOK OFFICE AS COLLECTOR.  THESE
PAYMENTS WERE BASED ON PETITIONER'S OPERATIONS AFTER OCTOBER 1, 1941,
THROUGH 1945.  PRIOR TO JANUARY 1, 1945, PETITIONER PAID $57.20 ON THE
BASIS OF OPERATIONS FROM JULY 25, 1941, TO OCTOBER 1, 1941. 

FN3  SEE 42 ILL. L. REV. ,18, 819-820(1948). 

FN4  THE REPORT OF THE HOUSE COMMITTEE ON WAYS AND MEANS RELATING TO
THE WAR REVENUE ACT OF 1917 "RECOMMENDED THAT THIS TAX BE IMPOSED UPON
ALL PLACES TO WHICH ADMISSION IS CHARGED, SUCH AS MOTION-PICTURE SHOWS,
THEATERS, CIRCUSES, ENTERTAINMENTS, CABARETS, BALL GAMES, ATHLETIC
GAMES, ETC., BUT NOT UPON ADMISSIONS ALL THE PROCEEDS OF WHICH WILL GO
EXCLUSIVELY TO THE BENEFIT OF RELIGIOUS OR CHARITABLE INSTITUTIONS OR
FOR AGRICULTURAL PURPOSES."  H.R. REP. NO. 45, 65TH CONG., 1ST SESS.
8(1917).  SEE 55 CONG. REC. 2148(1917). 

FN5  IN THE ADMISSIONS TAX PROVISIONS OF THE CODE, WORDS RESTRICTING
THE IMPOSITION OF TAX TO CERTAIN CLASSES OF PLACES APPEAR ONLY IN
SUBSECTIONS OTHER THAN (A) OF SEC. 1700.  SECTION 1700(B) IMPOSES A TAX
OF 11 PER CENT ON THE PERMANENT USE OR LEASE OF BOXES OR SEATS "IN AN
OPERA HOUSE OR ANY PLACE OF AMUSEMENT"; SUCH TAX IS IN LIEU OF THAT
PROVIDED FOR UNDER SEC. 1700(A).  SECTION 1700(C) IMPOSES ON THE SALE
OUTSIDE BOX OFFICES, OF TICKETS TO "THEATERS, OPERAS, AND OTHER PLACES
OF AMUSEMENT" A TAX OF 11 PER CENT OF THE PRICE IN EXCESS OF THE BOX
OFFICE PRICE; SUCH TAX IS IN ADDITION TO THE TAX IMPOSED BY SEC.
1700(A).  SECTION 1700(D) IMPOSES A TAX OF 50 PER CENT ON THE AMOUNT OF
SALES IN EXCESS OF REGULAR PRICE BY THE MANAGEMENT OF "ANY OPERA HOUSE,
THEATER, OR OTHER PLACE OF AMUSEMENT."  SECTION 1700(E) IMPOSES A TAX
OF 5 PER CENT ON AMOUNTS PAID FOR ADMISSION, REFRESHMENT, SERVICE, OR
MERCHANDISE, "AT ANY ROOF GARDEN, CABARET, OR OTHER SIMILAR PLACE
FURNISHING A PUBLIC PERFORMANCE FOR PROFIT"; IN SUCH CASES NO TAX MAY
BE IMPOSED UNDER SEC. 1700(A). 

COMPARE EXMOOR COUNTRY CLUB V. UNITED STATES, 119 F.2D 961(C.A.7TH
CIR., 1941); TWIN FALLS NATATORIUM V. UNITED STATES, 22 F.2D 308(D.
IDAHO, 1927); UNITED STATES V. KOLLER, 287 F. 418(W.D. WASH., 1921). 

FN6  ACCORD:  DASHOW V. HARRISON, 1946 P-H P72,405(N.D. ILL., 1946). 

FN7  ALTHOUGH AN EXEMPTION WAS ALLOWED BY SEC. 1701 OF THE INTERNAL
REVENUE CODE PRIOR TO OCTOBER 1, 1941, OF "ADMISSIONS ALL THE PROCEEDS
OF WHICH INURE  ...  EXCLUSIVELY TO THE BENEFIT OF  ...  SOCIETIES OR
ORGANIZATIONS CONDUCTED FOR THE SOLE PURPOSE  ...  OF IMPROVING ANY
CITY, TOWN, VILLAGE, OR OTHER MUNICIPALITY," WE NEED NOT DETERMINE
WHETHER THE EXEMPTION WAS PROPERLY INTERPRETED AS INAPPLICABLE TO
ACTIVITIES CONDUCTED BY A MUNICIPAL CORPORATION.  SEE TREAS. REG.
43(1928 ED.)  ART.  22; ID. (1932 ED.)  ART.  22; ID. (1940 ED.)  SEC. 
101.25.  THE PROVISION BECAME INAPPLICABLE PRIOR TO THE PERIOD FOR
WHICH PETITIONER MADE PAYMENTS WHICH COULD BE RECOVERED AGAINST THE
PRESENT RESPONDENT.  SEE NOTE 2, SUPRA. 

PETITIONER HAS ARGUED THAT THE SPECIFIC EXEMPTION BENEFITING
MUNICIPAL IMPROVEMENT SOCIETIES WAS INTENDED TO AFFORD THEM THE SAME
EXEMPTION WHICH CONGRESS THOUGHT APPLIED TO MUNICIPAL CORPORATIONS;
THUS, IT IS URGED, REPEAL OF THE SOCIETIES' EXEMPTION STILL WOULD LEAVE
THE EXEMPTION IN THE CASE OF MUNICIPALLY CONDUCTED ACTIVITIES.  IF
CONGRESS ASSUMED THAT ANY SUCH MUNICIPAL CORPORATION EXEMPTION EXISTED
BY IMPLICATION, IT SEEMS LIKELY THAT IT DID SO BECAUSE OF
CONSTITUTIONAL CONSIDERATIONS WHICH WE NOTICE HEREAFTER AND NOT BECAUSE
OF A BELIEF OR PURPOSE THAT THE TAX WAS NOT APPLICABLE TO ACTIVITIES
CONDUCTED BY ANY PUBLIC AGENCY.  THUS CONGRESS, IN ADOPTING 49 STAT.
1757, 1792(1936) AND 55 STAT. 303, 350(1941), APPARENTLY ASSUMED THAT
AN EXPRESS EXEMPTION WAS NECESSARY IN ORDER TO WITHDRAW ADMISSIONS TO
NATIONAL PARKS FROM THE TAX STATUTE.  CF. 55 STAT. 687,710(1941),
TERMINATING SUCH EXEMPTIONS OF PARK ADMISSIONS. 

FN8  TREAS. REG. 43(1919 ED., PART 1) ART. 42; ID. (1921 ED., PART 1)
ART. 42; ID. (1922 ED., PART 1) ART. 26; ID. (1924 ED., PART 1) ART. 26
ID. (1926 ED., PART 1) ART. 26; ID. (1928 ED.)  ART. 24; ID. (1932
ED.)  ART.  24; ID. (1940 ED.)  SEC.  101.27; ID. (1941 ED.)  SEC. 
101.16. 

FN9  REVENUE ACT OF 1918, SEC. 800, 40 STAT. 1057, 1120; REVENUE ACT
OF 1921, SEC. 800, 42 STAT. 227, 289; REVENUE ACT OF 1924, SEC. 500, 43
STAT. 253, 320; REVENUE ACT OF 1926, SEC. 500, 44 STAT. 9, 91; REVENUE
ACT OF 1928, SEC. 411, 45 STAT. 791, 863; REVENUE ACT OF 1932, SEC.
711, 47 STAT. 169, 271; PUB. RES. NO. 36, JUNE 28, 1935, 49 STAT. 431;
I.R.C. SECS. 1700, 1701(1939); REVENUE ACT OF 1941, SEC. 541, 55 STAT.
687, 710. 

FN10  SEE HUGUENOT YACHT CLUB V. UNITED STATES, 32 F.SUPP.  387,
388(S.D.N.Y., 1940); LENT, THE ADMISSIONS TAX, 1 NAT. TAX J. 31, 35
36(1948); 61 HARV. L. REV. 894(1948). 

FN11  SEE LENT, NOTE 10, SUPRA, AT 40-42. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MINTON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :


















PARKER V. LOS ANGELES COUNTY, 338 U.S. 327 


ARGUED NOVEMBER 8, 1949.  - DECIDED DECEMBER 5, 1949.  - 88 CAL. APP.2D
481, 199 P.2D 429, CERTIORARI DISMISSED. 


A STATE COURT DISMISSED ACTIONS BY CIVIL SERVICE EMPLOYEES FOR RELIEF
AGAINST ENFORCEMENT OF A "LOYALTY" PROGRAM BY A COUNTY, WITHOUT
CONSIDERING WHETHER DISCLOSURE OF INFORMATION SOUGHT BY A PRESCRIBED
AFFIDAVIT WOULD HAVE PENAL CONSEQUENCES, AND ITS DECISION LEFT IN DOUBT
WHETHER IT HAD PASSED ON THE VALIDITY UNDER THE FOURTEENTH AMENDMENT OF
SANCTIONS (IF THERE WERE ANY) FOR FAILURE TO EXECUTE THE AFFIDAVIT.  BY
A SUBSEQUENT ORDER, NOT INVOLVED IN THE JUDGMENTS NOW BEFORE THIS
COURT, THE COUNTY EXPLICITLY ADOPTED SANCTIONS FOR FAILURE TO EXECUTE
AFFIDAVITS; AND THE VALIDITY OF THIS LATTER ORDER WAS ATTACKED FOR THE
FIRST TIME IN LITIGATION STILL PENDING IN THE STATE COURTS.  SINCE THIS
LATTER LITIGATION MAY BE DECIDED IN FAVOR OF THE EMPLOYEES ON GROUNDS
OF STATE LAW, HELD:  THE CONSTITUTIONAL QUESTIONS RAISED IN THESE CASES
ARE NOT RIPE FOR ADJUDICATION, AND THE WRITS OF CERTIORARI HERETOFORE
GRANTED ARE DISMISSED.  PP. 328-333. 

PARKER ET AL. V. COUNTY OF LOS ANGELES ET AL. 

NO. 49.  CERTIORARI TO THE DISTRICT COURT OF APPEAL OF THE STATE OF
CALIFORNIA, SECOND APPELLATE DISTRICT* . 

*TOGETHER WITH NO. 50, STEINER V. COUNTY OF LOS ANGELES ET AL., ALSO
ON CERTIORARI TO THE SAME COURT. 

A STATE TRIAL COURT DISMISSED SUITS BY CERTAIN COUNTY EMPLOYEES FOR
RELIEF AGAINST A SO-CALLED "LOYALTY TEST" PRESCRIBED BY THE COUNTY'S
BOARD OF SUPERVISORS.  THE STATE DISTRICT COURT OF APPEAL AFFIRMED.  88
CAL. APP.2D 481, 199 P.2D 429.  THE STATE SUPREME COURT DENIED
DISCRETIONARY REVIEW.  THIS COURT GRANTED CERTIORARI.  337 U.S. 929. 
WRITS OF CERTIORARI DISMISSED, P. 333. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN NO. 49, TWENTY-FIVE CLASSIFIED CIVIL SERVANTS OF THE COUNTY OF LOS
ANGELES BROUGHT AN ACTION IN THE SUPERIOR COURT OF THAT COUNTY, AND IN
NO. 50, SUIT WAS BROUGHT BY ONE SUCH EMPLOYEE.  THE RESPECTIVE
PLAINTIFFS SOUGHT RELIEF AGAINST ENFORCEMENT BY THE COUNTY AND ITS
OFFICIALS OF WHAT IS COLLOQUIALLY KNOWN AS A LOYALTY TEST, AND THEY DID
SO FOR THEMSELVES AND "IN A REPRESENTATIVE CAPACITY  ...  ON BEHALF OF
20,000 EMPLOYEES OF LOS ANGELES COUNTY SIMILARLY SITUATED." 

THE PLAINTIFFS, PETITIONERS HERE, ALLEGED THAT ON AUGUST 26, 1947,
THE BOARD OF SUPERVISORS OF THE COUNTY OF LOS ANGELES ADOPTED AS PART
OF ITS "LOYALTY CHECK" PROGRAM THE REQUIREMENT THAT ALL COUNTY
EMPLOYEES EXECUTE A PRESCRIBED AFFIDAVIT.  IT CONSISTED OF FOUR PARTS,
FULLY SET FORTH IN THE APPENDIX.  BY PART A, EACH EMPLOYEE IS REQUIRED
TO SUPPORT THE CONSTITUTION OF THE UNITED STATES, AND THE CONSTITUTION
AND LAWS OF THE STATE OF CALIFORNIA; BY PART B, HE FORSWEARS THAT SINCE
DECEMBER 7, 1941, HE HAS BEEN A MEMBER OF ANY ORGANIZATION ADVOCATING
THE FORCIBLE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES OR OF THE
STATE OF CALIFORNIA OR OF THE COUNTY OF LOS ANGELES, THAT HE NOW
ADVOCATES SUCH OVERTHROW, OR THAT HE WILL IN THE FUTURE SO ADVOCATE
DIRECTLY OR THROUGH AN ORGANIZATION; BY PART C, HE IS REQUIRED TO LIST
HIS ALIASES; AND BY PART D, HE IS ASKED TO INDICATE WHETHER HE HAS EVER
BEEN "A MEMBER OF, OR DIRECTLY OR INDIRECTLY SUPPORTED OR FOLLOWED" ANY
OF AN ENUMERATED LIST OF 145 ORGANIZATIONS.  ASSERTING FEAR OF
PENALIZING CONSEQUENCES FROM THE LOYALTY PROGRAM, AND CLAIMING THAT THE
LAW OF CALIFORNIA AND THE CONSTITUTION OF THE UNITED STATES BARRED
COERCIVE MEASURES BY THE COUNTY TO SECURE OBEDIENCE TO THE ALLEGED
AFFIDAVIT REQUIREMENT, PETITIONERS BROUGHT THESE ACTIONS.  DEMURRERS TO
THE COMPLAINTS WERE SUSTAINED BY THE SUPERIOR COURT AND ITS JUDGMENTS
WERE AFFIRMED BY THE DISTRICT COURT OF APPEAL FOR THE SECOND APPELLATE
DISTRICT.  88 CAL. APP.2D 481, 199 P.2D 429.  AFTER THE SUPREME COURT
OF CALIFORNIA DENIED DISCRETIONARY REVIEW WE BROUGHT THE CASE HERE
BECAUSE, ON THE SHOWING THEN BEFORE US, SERIOUS QUESTIONS SEEMED RAISED
AS TO THE SCOPE OF A STATE'S POWER TO SAFEGUARD ITS SECURITY WITH DUE
REGARD FOR THE LIBERTY GUARANTEED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  337 U.S. 929.  IN VIEW, HOWEVER, OF THE
CIRCUMSTANCES THAT BECAME MANIFEST AFTER THE CASES CAME TO ARGUMENT, WE
ARE PRECLUDED FROM REACHING THESE CONSTITUTIONAL ISSUES ON THEIR
MERITS. 

TO BEGIN WITH, THE CALIFORNIA DECISION UNDER REVIEW DOES NOT TELL US
UNAMBIGUOUSLY WHAT COMPULSION, IF ANY, THE LOYALTY ORDER OF AUGUST 26,
1947, CARRIED.  IT IS UNEQUIVOCALLY CLEAR THAT THE LOWER COURT REFUSED
TO DECIDE WHETHER AN EMPLOYEE WHO DISCLOSES HIS SO-CALLED "SUBVERSIVE"
ACTIVITIES OR CONNECTIONS MAY FOR THAT REASON BE DISCHARGED.  IT IS NOT
CLEAR, HOWEVER, WHETHER, AS PETITIONERS CONTEND, THE LOWER COURT MEANT
TO HOLD THAT THE BOARD OF SUPERVISORS MAY DISCHARGE AN EMPLOYEE WHO
REFUSES TO FILE AN AFFIDAVIT.  FN1  THIS AMBIGUITY RENDERS SO DOUBTFUL
WHETHER AN ISSUE UNDER THE UNITED STATES CONSTITUTION IS BEFORE US THAT
AT MOST WE WOULD EXERCISE JURISDICTION TO OBTAIN CLARIFICATION BY THE
STATE COURT.  SEE HONEYMAN V. HANAN, 300 U.S. 14; MINNESOTA V. NATIONAL
TEA CO., 309 U.S. 551; STATE TAX COMM'N V. VAN COTT, 306 U.S. 511; HERB
V. PITCAIRN, 324 U.S. 117.  BUT THE CIRCUMSTANCES WHICH WERE CALLED TO
OUR ATTENTION AFTER THE CASES REACHED US LEAVE NO DOUBT THAT THE ISSUES
WHICH LED US TO BRING THEM HERE ARE NOT RIPE FOR CONSTITUTIONAL
ADJUDICATION.  AMERICAN WOOD PAPER CO. V. HEFT, 8 WALL.  333, 131 U.S.
XCII; COMMERCIAL CABLE CO. V. BURLESON, 250 U.S. 360. 

AS OF JULY 20, 1948, NEARLY A YEAR AFTER THE ORIGINAL LOYALTY ORDER,
ALL BUT 104 OF THE 22,000 OFFICERS AND EMPLOYEES OF THE COUNTY HAD
EXECUTED THE PRESCRIBED AFFIDAVIT.  ON THAT DAY, THESE NONCOMPLYING
EMPLOYEES WERE ADVISED THAT THE BOARD OF SUPERVISORS HAD ADOPTED AN
ORDER PROVIDING (1) THAT UNLESS THEY HAD EXECUTED PARTS A, B AND C OF
THE AFFIDAVIT BY JULY 26 THEY WOULD BE DISCHARGED, AND (2) THAT UNLESS
THEY HAD EXECUTED PART D BY THAT TIME THEY WOULD BE DISCHARGED "IF AND
WHEN THE LOYALTY TEST LITIGATION NOW PENDING IS FINALLY CONCLUDED WITH
A DETERMINATION THAT THE COUNTY WAS JUSTIFIED IN REQUIRING FROM ITS
EMPLOYEES THE INFORMATION EMBODIED IN PARAGRAPH 'D.'"  FN2 

THIS ORDER WAS THE FIRST EXPLICIT ANNOUNCEMENT OF SANCTIONS BY THE
BOARD IN FURTHERANCE OF ITS LOYALTY PROGRAM.  BY JULY 26 THE ENTIRE
AFFIDAVIT HAD BEEN EXECUTED BY ALL BUT 45 EMPLOYEES.  OF THESE, 29 HAD
EXECUTED ONLY PARTS A, B AND C. SIXTEEN STOOD THEIR GROUND AGAINST ANY
COMPLIANCE.  THEY INVOKED THEIR ADMINISTRATIVE REMEDY OF REVIEW BEFORE
THE CIVIL SERVICE COMMISSION WHICH DECIDED AGAINST THEM.  ON JUNE 24 OF
THIS YEAR THESE SIXTEEN DISCHARGED EMPLOYEES SOUGHT A WRIT OF MANDATE
FROM THE SUPERIOR COURT OF THE COUNTY OF LOS ANGELES TO REVIEW THE
DECISION OF THE CIVIL SERVICE COMMISSION, WITH A PRAYER FOR
REINSTATEMENT AND BACK PAY.  WE ARE ADVISED THAT THIS LITIGATION IS NOW
PENDING IN THE SUPERIOR COURT.  THE PETITIONERS HERE, EXCEPT ONE IN NO.
49, SIGNED PARTS A, B AND C, AND THAT PETITIONER IS A PARTY IN THE CASE
BEFORE THE SUPERIOR COURT. 

FROM THIS IT APPEARS THAT THE CALIFORNIA COURTS HAVE BEFORE THEM FOR
THE FIRST TIME SINCE THE INCEPTION OF THE LOYALTY PROGRAM AN ORDER
WHICH EXPRESSLY THREATENS SANCTIONS.  THESE SANCTIONS ARE BEING
CHALLENGED UNDER STATE LAW AS WELL AS UNDER THE UNITED STATES
CONSTITUTION.  FOR ALL WE KNOW THE CALIFORNIA COURTS MAY SUSTAIN THESE
CLAIMS UNDER LOCAL LAW.  FN3  THE PRESENT CASES ARE HERE FROM AN
INTERMEDIATE STATE APPELLATE COURT BECAUSE THE STATE SUPREME COURT DID
NOT DEEM THE RECORDS BEFORE IT TO PRESENT ISSUES DESERVING OF ITS
DISCRETIONARY REVIEW.  THE EXPLICIT SANCTIONS OF THE MODIFIED ORDER MAY
LEAD THE SUPREME COURT OF CALIFORNIA TO PASS ON THEM SHOULD THE
LITIGATION NOW PENDING IN THE LOWER COURTS GO AGAINST THE CONTENTIONS
OF THESE PETITIONERS.  IT IS RELEVANT TO NOTE THAT WHEN CLAIMS NOT
UNRELATED TO THOSE NOW URGED BEFORE US, BUT BASED ON STATE LAW, HAVE
COME BEFORE THE SUPREME COURT OF CALIFORNIA THAT TRIBUNAL HAS NOT BEEN
INSENSITIVE TO THEM.  SEE COMMUNIST PARTY V. PEEK, 20 CAL.2D 536, 127
P.2D 889; JAMES V. MARINSHIP CORP., 25 CAL.2D 721, 155 P.2D 329.  IF
THEIR CLAIMS ARE RECOGNIZED BY THE CALIFORNIA COURTS, PETITIONERS WOULD
OF COURSE HAVE NO BASIS FOR ASSERTING DENIAL OF A FEDERAL RIGHT.  IT
WILL BE TIME ENOUGH FOR THE PETITIONERS TO URGE DENIAL OF A FEDERAL
RIGHT AFTER THE STATE COURTS HAVE DEFINITIVELY DENIED THEIR CLAIMS
UNDER STATE LAW. 

DUE REGARD FOR OUR FEDERAL SYSTEM REQUIRES THAT THIS COURT STAY ITS
HAND UNTIL THE OPPORTUNITIES AFFORDED BY STATE COURTS HAVE EXHAUSTED
CLAIMS OF LITIGANTS UNDER STATE LAW.  THIS IS NOT WHAT IS INVIDIOUSLY
CALLED A TECHNICAL RULE.  THE BEST TEACHING OF THIS COURT'S EXPERIENCE
ADMONISHES US NOT TO ENTERTAIN CONSTITUTIONAL QUESTIONS IN ADVANCE OF
THE STRICTEST NECESSITY.  DECENT RESPECT FOR CALIFORNIA AND ITS COURTS
DEMANDS THAT THIS COURT WAIT UNTIL THE STATE COURTS HAVE SPOKEN WITH
KNOWLEDGE OF THE EVENTS BROUGHT TO LIGHT FOR THE FIRST TIME AT THE BAR
OF THIS COURT.  SINCE THE WRITS MUST BE DISMISSED BECAUSE
CONSTITUTIONAL QUESTIONS WHICH BROUGHT THESE CASES HERE ARE NOT RIPE
FOR DECISION, ALL SUBSIDIARY QUESTIONS FALL.  SEE RESCUE ARMY V.
MUNICIPAL COURT, 331 U.S. 549, 585; ALABAMA STATE FED. OF LABOR V.
MCADORY, 325 U.S. 450; C.I.O. V. MCADORY, 325 U.S. 472.  DISMISSED. 

FN1  CLEARLY ENOUGH SOME DISCHARGES OR DEMOTIONS OF CLASSIFIED
EMPLOYEES BY THE BOARD OF SUPERVISORS ARE NOT FINAL.  THE DIVISION OF
AUTHORITY BETWEEN THE BOARD AND THE COUNTY CIVIL SERVICE COMMISSION IS
THUS FORMULATED BY THE LOWER COURT: 

"IN CASE THE APPOINTING POWER WISHES TO DISCHARGE A CIVIL SERVICE
EMPLOYEE THE REASONS THEREFOR MUST BE GIVEN AND, THEREUPON, IF THE
EMPLOYEE SO DESIRES HE IS ENTITLED TO A HEARING BEFORE THE COMMISSION. 
IF THE COMMISSION FINDS THAT THE REASONS ARE NOT SUFFICIENT, THE
DISCHARGE IS VOID DESPITE ANYTHING THE APPOINTING POWER CAN DO ABOUT
IT. 

"FROM WHAT HAS SO FAR BEEN SAID, IT IS SELF-EVIDENT THAT NEITHER THE
BOARD NOR ITS AGENTS CAN DISCHARGE A CIVIL SERVICE EMPLOYEE FOR ANY
CAUSE THAT THE CIVIL SERVICE COMMISSION FINDS INSUFFICIENT. 
ACCORDINGLY, IF IN THE VIEW OF THE BOARD OF SUPERVISORS, OR ITS AGENTS
AS THE APPOINTING POWER, A CIVIL SERVICE EMPLOYEE SHOULD BE DISCHARGED
ON THE SOLE GROUND THAT THE EMPLOYEE IS 'SUBVERSIVE,' THE DISCHARGE OR
ATTEMPT TO DISCHARGE ON THAT GROUND IS OF NO EFFECT IF, ON HEARING, THE
COMMISSION HOLDS OTHERWISE. 

     .         .         .         .         . 

WHETHER THE APPOINTING POWER WILL OR WILL NOT DISCHARGE EMPLOYEES AS
CLAIMED BY THE PLAINTIFFS, FOR CAUSES OF THE CHARACTER ENUMERATED, AND
WHETHER THE CIVIL SERVICE COMMISSION WILL UPHOLD SUCH DISCHARGES, IF
ANY, ON SUCH CAUSES, ARE NOT MATTERS UPON WHICH THIS COURT MAY
SPECULATE OR ADJUDICATE AT THIS TIME...."  88 CAL. APP.2D 481, 493,
497, 199 P.2D 429, 436, 438-39.  SEE LOS ANGELES COUNTY CHARTER, ART.
IX, SEC. 34(13) IN CAL. LAWS 1913, P. 1495, AS AMENDED, CAL. STAT.
1939, P. 3147. 

FN2  THE AFFIDAVIT IN THE ORDER OF JULY 20, 1948, DIFFERED FROM THE
AFFIDAVIT IN THE ORIGINAL ORDER ONLY IN THAT PART B WAS ELUCIDATED TO
AN EXTENT NOT HERE RELEVANT AND A FEW ORGANIZATIONS LISTED IN PART D
WERE OMITTED. 

FN3  ARTICLE IX, SEC. 41 OF THE LOS ANGELES CHARTER PROVIDES:  "NO
PERSON IN THE CLASSIFIED SERVICE, OR SEEKING ADMISSION THERETO, SHALL
BE APPOINTED, REDUCED OR REMOVED OR IN ANY WAY FAVORED OR DISCRIMINATED
AGAINST BECAUSE OF HIS POLITICAL OR RELIGIOUS OPINIONS OR
AFFILIATIONS."  CAL. LAWS 1913, P. 1496.  ARTICLE I, SECS. 1, 4, 9, 10,
16, 21 OF THE CALIFORNIA CONSTITUTION CONTAINS SAFEGUARDS AGAINST
INFRINGEMENT OF THE RIGHTS AT WHICH PETITIONERS CLAIM THE LOYALTY
INVESTIGATION STRIKES. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THESE CASES. 

         APPENDIX. 

THE AFFIDAVIT PRESCRIBED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF
LOS ANGELES ON AUGUST 26, 1947, AS PART OF ITS "LOYALTY CHECK" PROGRAM
IS AS FOLLOWS:

                     OATH AND AFFIDAVIT DEPARTMENT
........................................ 

A. OATH OF OFFICE OR EMPLOYMENT 

I, .................., DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AND THE
CONSTITUTION AND LAWS OF THE STATE OF CALIFORNIA, AGAINST ALL ENEMIES,
FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE
SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL
RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY
DISCHARGE THE DUTIES OF THE OFFICE OR EMPLOYMENT ON WHICH I AM ABOUT TO
ENTER OR AM NOW ENGAGED.  SO HELP ME GOD. 

B. AFFIDAVIT RE SUBVERSIVE ACTIVITY 

I DO FURTHER SWEAR (OR AFFIRM) THAT I DO NOT ADVOCATE, NOR AM I NOW A
MEMBER, NOR HAVE I BEEN SINCE DECEMBER 7, 1941, A MEMBER OF ANY
POLITICAL PARTY OR ORGANIZATION THAT ADVOCATES THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES, OR STATE OF CALIFORNIA, OR COUNTY OF
LOS ANGELES, BY FORCE OR VIOLENCE, EXCEPT THOSE SPECIFIED AS FOLLOWS:
...  AND THAT DURING SUCH TIME AS I AM AN OFFICER OR EMPLOYEE OF THE
COUNTY OF LOS ANGELES, I WILL NOT ADVOCATE NOR BECOME A MEMBER OF ANY
POLITICAL PARTY OR ORGANIZATION THAT ADVOCATES THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES, OR STATE OF CALIFORNIA, OR COUNTY OF
LOS ANGELES BY FORCE OR VIOLENCE. 

C. AFFIDAVIT RE ALIASES 

I DO FURTHER SWEAR (OR AFFIRM) THAT I HAVE NEVER USED OR BEEN KNOWN
BY ANY NAMES OTHER THAN THOSE LISTED AS FOLLOWS:  ... 

D. MEMBERSHIP IN ORGANIZATIONS 

I DO FURTHER SWEAR (OR AFFIRM) THAT I HAVE NEVER BEEN A MEMBER OF, OR
DIRECTLY OR INDIRECTLY SUPPORTED OR FOLLOWED ANY OF THE HEREINAFTER
LISTED ORGANIZATIONS, EXCEPT THOSE WHICH I INDICATE BY AN X MARK. 

NAME 

ABRAHAM LINCOLN BRIGADE. 

ACADEMIC AND CIVIL RIGHTS COUNCIL OF CALIFORNIA. 

AFTER SCHOOL CLUBS. 

AGITPROP. 

AMERICAN ARTISTS CONGRESS. 

AMERICA FOR AMERICANS. 

AMERICAN COMM. FOR A FREE INDONESIA. 

AMERICAN COMM. FOR DEMOCRACY AND INTELLECTUAL FREEDOM. 

AMERICAN COMM. FOR PROTECTION OF THE FOREIGN BORN. 

AMERICAN COMM. TO SAVE REFUGEES.    AMERICANS COMMUNICATIONS ASSN. 

AMERICAN COMMUNIST PARTY. 

AMERICAN COUNCIL ON SOVIET RELATIONS. 

AMERICAN FEDERATION FOR POLITICAL UNITY. 

AMERICAN FRIENDS OF THE CHINESE PEOPLE. 

AMERICAN GUARD. 

AMERICAN LEAGUE AGAINST WAR AND FASCISM. 

AMERICAN LEAGUE FOR PEACE AND DEMOCRACY. 

AMERICAN LEAGUE OF CHRISTIAN WOMEN. 

AMERICAN PEACE MOBILIZATION. 

AMERICAN RUSSIAN INSTITUTE. 

AMERICAN SOCIETY FOR TECHNICAL AID FOR SPAIN. 

AMERICAN STUDENT UNION. 

AMERICAN VETERANS COMM. 

AMERICAN WRITERS CONGRESS. 

AMERICAN YOUTH CONGRESS. 

AMERICAN WRITERS SCHOOL. 

AMERICAN YOUTH FOR DEMOCRACY. 

ANTI-AXIS COMM. 

ANTI-HEARST EXAMINER. 

ANTI-NAZI LEAGUE. 

ANTI-NAZI LEAGUE OF HOLLYWOOD. 

ANTI-ROTC COMMITTEE. 

ARCOS LIMITED. 

ARTIST FRONT TO WIN THE WAR. 

ARTS ADVISORY COUNCIL. 

AUTHORS LEAGUE. 

BALLILA. 

BAY AREA COUNCIL AGAINST DISCRIMINATION. 

CALIFORNIA CONFERENCE FOR DEMOCRATIC ACTION. 

CALIFORNIA LABOR SCHOOL. 

CALIFORNIA YOUTH LEGISLATURE. 

CENTRO ANTI-COMMUNISTS. 

CHINA AID COUNCIL OF AMERICAN 

LEAGUE FOR PEACE AND DEMOCRACY. 

CITIZENS COMMITTEE FOR BETTER EDUCATION. 

CITIZENS COMM. FOR DEFENSE OF MEXICAN-AMERICAN YOUTH. 

CITIZENS COMM. TO FREE EARL BROWDER. 

CITIZENS COMM. TO SUPPORT LABORS RIGHT. 

CITIZENS NO FOREIGN WARS COALITION. 

CIVIL RIGHTS CONGRESS. 

CIVIL RIGHTS COUNCIL FOR NORTHERN CALIFORNIA. 

COMINTERN. 

COMM. FOR BOYCOTT AGAINST JAPANESE AGGRESSION. 

COMM. FOR DEFENSE OF MEXICAN-AMERICAN YOUTH. 

COMM. FOR SUPPORT OF S.W. GARSON. 

COMM. PROTESTING ATTACKS AGAINST THE ABRAHAM LINCOLN BRIGADE. 

COMM. TO DEFEND AMERICA BY KEEPING OUT OF WAR. 

COMMUNIST INTERNATIONAL. 

COMMUNIST PARTY'S LITTLE THEATRE. 

COMMUNIST WORKERS SCHOOL. 

COMMUNIST POLITICAL ASSN. 

CONFERENCE FOR DEMOCRATIC ACTION. 

CONSUMERS NATIONAL FEDERATION. 

CONTEMPORARY THEATRE. 

CO-ORDINATING COMMISSION TO LIFT EMBARGO (TO SPAIN). 

COUNCIL FOR PAN AMERICAN DEMOCRACY. 

CULTURAL AND PROFESSIONAL PROJECTS ASSN. 

CONGRESS OF MEXICAN AND SPANISH-MEXICAN PEOPLES OF U.S. 

DAILY WORKER. 

DEMOCRATIC YOUTH FEDERATION. 

ELIZABETH CURLEY FLYNN CLUB. 

ELIZALDE ANTI-DISCRIMINATION COMM. 

EMERGENCY COMM. TO AID SPAIN. 

EMERGENCY TRADE UNION CONFERENCE TO AID SPANISH DEMOCRACY. 

EX COMBATTANTI SOCIETY. 

FARMER LABOR PARTY. 

FEDERATION OF ARCHITECTS, ENGINEERS, CHEMISTS AND TECHNICIANS. 

FIELD WORKERS SCHOOL. 

FIRST CONGRESS OF MEXICAN AND SPANISH-AMERICAN PEOPLES OF U.S. 

FRIENDS OF SOVIET RUSSIA. 

FRIENDS OF SOVIET UNION. 

GERMAN-AMERICAN BUND. 

GREATER NEW YORK EMERGENCY CONFERENCE ON INALIENABLE RIGHTS. 

HARRY BRIDGES DEFENSE COMM. 

HOLD THE PRICE LINE COMM. 

HOLLYWOOD ANTI NAZI LEAGUE. 

HOLLYWOOD CULTURAL COMMISSION. 

HOLLYWOOD COMMUNITY RADIO GROUP. 

HOLLYWOOD INDEPENDENT CITIZENS COMM. OF ARTS, SCIENCES AND
PROFESSIONS. 

HOLLYWOOD LEAGUE FOR DEMOCRATIC ACTION. 

HOLLYWOOD THEATRE ALLIANCE. 

HOLLYWOOD WRITERS MOBILIZATION. 

HUMANIST SOCIETY OF FRIENDS. 

INDEPENDENT CITIZENS COMM. OF ARTS, SCIENCES AND PROFESSIONS. 

INTERNATIONAL LABOR DEFENSE. 

INTERNATIONAL RED AID. 

INTERNATIONAL WORKERS ORDER. 

JEWISH PEOPLES COMMITTEE. 

JOHN REED CLUBS. 

JOINT COMMITTEE FOR TRADE UNION RIGHTS. 

JOINT ANTI-FASCISTS REFUGEE COMMITTEE. 

LEAGUE AGAINST WAR AND FASCISM. 

LEAGUE FOR DEMOCRATIC ACTION. 

LEAGUE FOR PEACE AND DEMOCRACY. 

LEAGUE FOR AMERICAN WRITERS. 

LEAGUE FOR STRUGGLE FOR NEGRO RIGHTS. 

LEAGUE OF WOMEN SHOPPERS. 

LEAGUE TO SAVE AMERICA FIRST. 

LOS ANGELES COUNTY POLITICAL COMMISSION. 

LOS ANGELES COUNTY TRADE UNION COMMISSION. 

MOONEY DEFENSE COMMISSION. 

MARINE COOKS AND STEWARDS UNION. 

MARITIME FEDERATION OF THE PACIFIC. 

MOBILIZATION FOR DEMOCRACY. 

MOTION PICTURE COOPERATIVE BUYERS GUILD. 

MOTION PICTURE DEMOCRATIC COMMITTEE. 

NATIONAL CITIZENS POLITICAL ACTION COMMITTEE. 

NATIONAL COMMITTEE TO ABOLISH THE POLL TAX. 

NATIONAL COUNCIL ON SOVIET AMERICAN FRIENDSHIP. 

NATIONAL EMERGENCY CONFERENCE. 

NATIONAL FEDERATION FOR CONSTITUTIONAL LIBERTIES. 

NATIONAL NEGRO WOMEN'S COUNCIL. 

NATIONAL NEGRO CONGRESS. 

NATIONAL STUDENTS LEAGUE. 

NEW MASSES. 

NEW THEATRE LEAGUE. 

NORTH AMERICAN COMMISSION TO AID SPANISH DEMOCRACY. 

PEN AND HAMMER CLUB. 

PEOPLES COUNCIL OF AMERICA. 

PEOPLES FRONT. 

PROGRESSIVE COMM. TO REBUILD THE AMERICAN LABOR PARTY. 

REFUGEE SCHOLARSHIP AND PEACE COMM. 

SECOND ANNUAL CALIFORNIA MODEL LEGISLATURE. 

SIMON J. LUBIN SOCIETY. 

SOCIAL PROBLEMS CLUB. 

SPANISH RELIEF COMMITTEE. 

STUDENT RIGHTS ASSN. 

UNITED FARMERS LEAGUE. 

UNITED FEDERAL WORKERS. 

WESTERN WORKERS. 

WORKERS ALLIANCE. 

WORLD COMMITTEE AGAINST WAR. 

WORKERS SCHOOL. 

YOUNG COMMUNIST LEAGUE. 

THE YOUNG PIONEERS. 
..END :

















UNITED STATES V. YELLOW CAB CO., 338 U.S. 338 


NO. 22.  ARGUED NOVEMBER 14-15, 1949.  - DECIDED DECEMBER 5, 1949.  - 80
F.SUPP.  936, AFFIRMED. 


IN A SUIT TO RESTRAIN VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT
THROUGH A CONSPIRACY TO RESTRAIN AND MONOPOLIZE THE SALE OF TAXICABS BY
CONTROL OF THE PRINCIPAL COMPANIES OPERATING THEM IN CERTAIN STATES,
THE TRIAL COURT CAREFULLY WEIGHED THE EVIDENCE, FOUND IT INSUFFICIENT
TO SUPPORT THE ALLEGATIONS OF THE COMPLAINT AND ENTERED JUDGMENT FOR
DEFENDANTS.  HELD:  JUDGMENT AFFIRMED.  PP. 339-342. 

(A)  FOR TRIERS OF FACT TOTALLY TO REJECT AN OPPOSED VIEW IMPEACHES
NEITHER THEIR IMPARTIALITY NOR THE PROPRIETY OF THEIR CONCLUSIONS. 
LABOR BOARD V. PITTSBURGH STEAMSHIP CO., 337 U.S. 656.  P. 341. 

(B)  RULE 52, FEDERAL RULES OF CIVIL PROCEDURE, APPLIES TO APPEALS BY
THE GOVERNMENT AS WELL AS TO THOSE BY OTHER LITIGANTS.  PP. 341-342. 

(C)  WHERE THE EVIDENCE WOULD SUPPORT A CONCLUSION EITHER WAY AND THE
TRIAL COURT HAS DECIDED IT TO WEIGH MORE HEAVILY FOR THE DEFENDANTS,
SUCH A CHOICE BETWEEN TWO PERMISSIBLE VIEWS OF THE WEIGHT OF THE
EVIDENCE IS NOT "CLEARLY ERRONEOUS" WITHIN THE MEANING OF RULE 52.  P.
342. 

UNITED STATES V. YELLOW CAB CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

IN A SUIT TO ENJOIN ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE
SHERMAN ACT, THE DISTRICT COURT FOUND THAT THE EVIDENCE DID NOT SUPPORT
THE ALLEGATIONS OF THE COMPLAINT AND ENTERED JUDGMENT FOR DEFENDANTS. 
80 F.SUPP.  936.  ON APPEAL TO THIS COURT, AFFIRMED, P. 342. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS SUIT IN EQUITY, UNDER SECS. 1 AND 2 OF THE SHERMAN ACT, 15
U.S.C. SECS. 1 AND 2, ORIGINALLY INCLUDED THREE CHARGES OF VIOLATION:
(1) CONSPIRACY TO RESTRAIN AND MONOPOLIZE TRANSPORTATION OF INTERSTATE
TRAVELERS BY TAXICAB BETWEEN CHICAGO RAILROAD STATIONS AND THEIR HOMES,
OFFICES AND HOTELS; (2) CONSPIRACY TO ELIMINATE COMPETITION FOR THE
BUSINESS OF TRANSPORTING PASSENGERS BETWEEN DIFFERENT CHICAGO RAILROAD
STATIONS; AND (3) CONSPIRACY TO RESTRAIN AND MONOPOLIZE THE SALE OF
TAXICABS BY CONTROL OF THE PRINCIPAL COMPANIES OPERATING THEM IN
CHICAGO, NEW YORK, PITTSBURGH AND MINNEAPOLIS.  ON A PREVIOUS APPEAL
THIS COURT HELD THE FIRST OF THE CHARGES NOT TO STATE A CASE WITHIN THE
STATUTE, AND THAT CHARGE NO LONGER CONCERNS US.  UNITED STATES V.
YELLOW CAB CO., 332 U.S. 218.  THE COURT BELOW FOUND THAT THE
GOVERNMENT FAILED TO PROVE THE SECOND CHARGE AND NO APPEAL IS TAKEN
FROM THAT PART OF THE JUDGMENT, SO THAT CHARGE HAS BEEN ELIMINATED.  WE
HAVE HELD THAT THE RESIDUE OF THE COMPLAINT, EMBODYING THE THIRD
CHARGE, ALLEGES A CAUSE OF ACTION WITHIN THE STATUTE, BUT ONLY ON THE
EXPRESSED ASSUMPTION THAT THE FACTS ALLEGED ARE TRUE, UNITED STATES V.
YELLOW CAB COMPANY, SUPRA, AT 224; BUT THE TRIAL COURT HAS FOUND THAT
THE GOVERNMENT, AT THE TRIAL, HAS FAILED ON ALL THE EVIDENCE TO PROVE
ITS CASE.  80 F.SUPP.  936.  THE CAUSE IS BEFORE US BY A DIRECT APPEAL
UNDER THE EXPEDITING ACT, 15 U.S.C. SEC. 29, AND NOT BY AN EXERCISE OF
OUR DISCRETIONARY JURISDICTION. 

THE FIRST QUESTION PROPOSED BY THE GOVERNMENT IS WHETHER THE EVIDENCE
SUSTAINS THE FINDINGS OF FACT BY THE DISTRICT COURT.  THIS IS THE BASIC
ISSUE, AND THE GOVERNMENT RAISES NO QUESTION OF LAW THAT HAS AN
EXISTENCE INDEPENDENT OF IT.  THIS ISSUE OF FACT DOES NOT ARISE UPON
THE TRIAL COURT'S DISREGARD OR MISUNDERSTANDING OF SOME DEFINITE AND
WELL-ESTABLISHED FACT.  IT EXTENDS TO ALMOST EVERY DETAIL OF THE
DECISION, THE GOVERNMENT SAYING THAT THE TRIAL COURT "IGNORED  ...
SUBSTANTIALLY ALL OF THE FACTS WHICH THE GOVERNMENT DEEMED
SIGNIFICANT." 

WHAT THE GOVERNMENT ASKS, IN EFFECT, IS THAT WE TRY THE CASE DE NOVO
ON THE RECORD, REJECT NEARLY ALL OF THE FINDINGS OF THE TRIAL COURT,
AND SUBSTITUTE CONTRARY FINDINGS OF OUR OWN.  SPECIFICATIONS OF ERROR
WHICH ARE FUNDAMENTAL TO ITS CASE ASK US TO REWEIGH THE EVIDENCE AND
REVIEW FINDINGS THAT ARE ALMOST ENTIRELY CONCERNED WITH IMPONDERABLES,
SUCH AS THE INTENT OF PARTIES TO CERTAIN 1929 BUSINESS TRANSACTIONS,
WHETHER CORPORATE OFFICERS WERE THEN ACTING IN PERSONAL OR OFFICIAL
CAPACITIES, WHAT WAS THE DESIGN AND PURPOSE AND INTENT OF THOSE WHO
CARRIED OUT TWENTY-YEAR-OLD TRANSACTIONS, AND WHETHER THEY HAD
LEGITIMATE BUSINESS MOTIVES OR WERE INTENDING TO RESTRAIN TRADE OF
THEIR COMPETITORS IN CAR MANUFACTURE, SUCH AS GENERAL MOTORS, FORD,
CHRYSLER AND PACKARD. 

THESE WERE THE CHIEF FACT ISSUES IN A TRIAL OF THREE WEEKS'
DURATION.  THE GOVERNMENT RELIED IN LARGE PART ON INFERENCES FROM ITS
485 EXHIBITS, INTRODUCED BY NINE WITNESSES.  THE DEFENDANTS RELIED
HEAVILY ON ORAL TESTIMONY TO CONTRADICT THOSE INFERENCES.  THE RECORD
IS BEFORE US IN 1,674 CLOSELY-PRINTED PAGES. 

THE GOVERNMENT SUGGESTS THAT THE OPINION OF THE TRIAL COURT "SEEMS TO
REFLECT UNCRITICAL ACCEPTANCE OF DEFENDANTS' EVIDENCE AND OF
DEFENDANTS' VIEWS AS TO THE FACTS TO BE GIVEN CONSIDERATION IN PASSING
UPON THE LEGAL ISSUES BEFORE THE COURT."  WE SEE THAT IT DID INDEED
ACCEPT DEFENDANTS' EVIDENCE AND SUSTAINED DEFENDANTS' VIEW OF THE
FACTS.  BUT WE ARE UNABLE TO DISCOVER THE SLIGHTEST JUSTIFICATION FOR
THE ACCUSATION THAT IT DID SO "UNCRITICALLY."  ALSO, IT REJECTED THE
INFERENCES THE GOVERNMENT DREW FROM ITS DOCUMENTS, BUT WE FIND NO
JUSTIFICATION FOR THE STATEMENT THAT IT "IGNORED" THEM.  THE JUDGMENT
BELOW IS SUPPORTED BY AN OPINION, PREPARED WITH OBVIOUS CARE, WHICH
ANALYZES THE EVIDENCE AND SHOWS THE REASONS FOR THE FINDINGS.  TO US IT
APPEARS TO REPRESENT THE CONSIDERED JUDGMENT OF AN ABLE TRIAL JUDGE,
AFTER PATIENT HEARING, THAT THE GOVERNMENT'S EVIDENCE FELL SHORT OF ITS
ALLEGATIONS - A NOT UNCOMMON FORM OF LITIGATION CASUALTY, FROM WHICH
THE GOVERNMENT IS NO MORE IMMUNE THAN OTHERS. 

ONLY LAST TERM WE ACCEPTED THE VIEW THEN ADVANCED BY THE GOVERNMENT
THAT FOR TRIERS OF FACT TOTALLY TO REJECT AN OPPOSED VIEW IMPEACHES
NEITHER THEIR IMPARTIALITY NOR THE PROPRIETY OF THEIR CONCLUSIONS.  WE
SAID, "WE ARE CONSTRAINED TO REJECT THE COURT'S CONCLUSION THAT AN
OBJECTIVE FINDER OF FACT COULD NOT RESOLVE ALL FACTUAL CONFLICTS
ARISING IN A LEGAL PROCEEDING IN FAVOR OF ONE LITIGANT.  THE ORDINARY
LAWSUIT, CIVIL OR CRIMINAL, NORMALLY DEPENDS FOR ITS RESOLUTION ON
WHICH VERSION OF THE FACTS IN DISPUTE IS ACCEPTED BY THE TRIER OF
FACT.  ...  "  LABOR BOARD V. PITTSBURGH STEAMSHIP CO., 337 U.S. 656,
659. 

RULE 52, FEDERAL RULES OF CIVIL PROCEDURE, PROVIDES, AMONG OTHER
THINGS: 

"FINDINGS OF FACT SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS,
AND DUE REGARD SHALL BE GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO
JUDGE OF THE CREDIBILITY OF THE WITNESSES." 

FINDINGS AS TO THE DESIGN, MOTIVE AND INTENT WITH WHICH MEN ACT
DEPEND PECULIARLY UPON THE CREDIT GIVEN TO WITNESSES BY THOSE WHO SEE
AND HEAR THEM.  IF DEFENDANTS' WITNESSES SPOKE THE TRUTH, THE FINDINGS
ARE ADMITTEDLY JUSTIFIED.  THE TRIAL COURT LISTENED TO AND OBSERVED THE
OFFICERS WHO HAD MADE THE RECORDS FROM WHICH THE GOVERNMENT WOULD DRAW
AN INFERENCE OF GUILT AND CONCLUDED THAT THEY BEAR A DIFFERENT MEANING
FROM THAT FOR WHICH THE GOVERNMENT CONTENDS. 

IT OUGHT TO BE UNNECESSARY TO SAY THAT RULE 52 APPLIES TO APPEALS BY
THE GOVERNMENT AS WELL AS TO THOSE BY OTHER LITIGANTS.  THERE IS NO
EXCEPTION WHICH PERMITS IT, EVEN IN AN ANTITRUST CASE, TO COME TO THIS
COURT FOR WHAT VIRTUALLY AMOUNTS TO A TRIAL DE NOVO ON THE RECORD OF
SUCH FINDINGS AS INTENT, MOTIVE AND DESIGN.  WHILE, OF COURSE, IT WOULD
BE OUR DUTY TO CORRECT CLEAR ERROR, EVEN IN FINDINGS OF FACT, THE
GOVERNMENT HAS FAILED TO ESTABLISH ANY GREATER GRIEVANCE HERE THAN IT
MIGHT HAVE IN ANY CASE WHERE THE EVIDENCE WOULD SUPPORT A CONCLUSION
EITHER WAY BUT WHERE THE TRIAL COURT HAS DECIDED IT TO WEIGH MORE
HEAVILY FOR THE DEFENDANTS.  SUCH A CHOICE BETWEEN TWO PERMISSIBLE
VIEWS OF THE WEIGHT OF EVIDENCE IS NOT "CLEARLY ERRONEOUS."  JUDGMENT
AFFIRMED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE REED CONCURS, DISSENTING. 

THE EVIDENCE SHOWED HERE WITHOUT DISPUTE THAT A MANUFACTURER OF
TAXICABS THROUGH A SERIES OF STOCK PURCHASES OBTAINED 62% OF THE STOCK
OF A CORPORATION WHICH ITSELF HAD LARGE STOCK INTERESTS IN LOCAL
COMPANIES OPERATING TAXICABS.  THE MAN WHO WAS PRESIDENT, GENERAL
MANAGER, DIRECTOR, AND DOMINANT STOCKHOLDER IN THE TAXICAB
MANUFACTURING COMPANY ALSO HELD AN IMPORTANT MANAGERIAL POSITION IN THE
CORPORATE NETWORK THAT CARRIED ON THE BUSINESS OF THE LOCAL TAXICAB
OPERATING COMPANIES.  THE FINDINGS OF THE DISTRICT COURT WERE THAT THE
AFFILIATED OWNERSHIP, MANAGEMENT AND CONTROL WERE NOT THE RESULT OF ANY
DELIBERATE OR CALCULATED PURPOSE OF THE MANUFACTURING COMPANY TO
CONTROL THE OPERATING COMPANIES' PURCHASES OF TAXICABS, AND THAT NO
COMPULSION HAD BEEN EXERCISED TO CONTROL SUCH PURCHASES.  CONSEQUENTLY
THE TRIAL COURT HELD THAT DESPITE THE INTEGRATION OF CORPORATE
MANAGEMENT THERE WAS NO VIOLATION OF THE SHERMAN ACT.  I THINK THAT THE
TRIAL COURT ERRED IN HOLDING THAT A FORMED INTENT TO SUPPRESS
COMPETITION IS AN INDISPENSABLE ELEMENT OF VIOLATIONS OF THE SHERMAN
ACT. 

IN UNITED STATES V. GRIFFITH, 334 U.S. 100, 105, 106, WE SAID: 

"IT IS, HOWEVER, NOT ALWAYS NECESSARY TO FIND A SPECIFIC INTENT TO
RESTRAIN TRADE OR TO BUILD A MONOPOLY IN ORDER TO FIND THAT THE ANTI
TRUST LAWS HAVE BEEN VIOLATED.  IT IS SUFFICIENT THAT A RESTRAINT OF
TRADE OR MONOPOLY RESULTS AS THE CONSEQUENCE OF A DEFENDANT'S CONDUCT
OR BUSINESS ARRANGEMENTS.  UNITED STATES V. PATTEN, 226 U.S. 525, 543;
UNITED STATES V. MASONITE CORP., 316 U.S. 265, 275.  TO REQUIRE A
GREATER SHOWING WOULD CRIPPLE THE ACT.  ...  (EVEN) IF WE ACCEPT THE
DISTRICT COURT'S FINDINGS THAT APPELLEES HAD NO INTENT OR PURPOSE
UNREASONABLY TO RESTRAIN TRADE OR TO MONOPOLIZE, WE ARE LEFT WITH THE
QUESTION WHETHER A NECESSARY AND DIRECT RESULT OF THE MASTER AGREEMENTS
WAS THE RESTRAINING OR MONOPOLIZING OF TRADE WITHIN THE MEANING OF THE
SHERMAN ACT." 

MEASURED BY THIS TEST THE FINDINGS OF THE TRIAL COURT HERE FAIL TO
SUPPORT ITS LEGAL CONCLUSIONS THAT NO VIOLATION OF THE SHERMAN ACT HAD
BEEN PROVEN.  SINCE THE TRIAL COURT WENT ON THE ASSUMPTION THAT
SUBJECTIVE INTENT TO SUPPRESS COMPETITION IS AN ESSENTIAL INGREDIENT OF
SHERMAN LAW VIOLATIONS, IT DID NOT MAKE SPECIFIC FINDINGS AS TO WHETHER
THE FREEDOM OF THE TAXICAB COMPANIES TO BUY TAXICABS FROM OTHER
MANUFACTURERS HAD BEEN HOBBLED BY THE DEFENDANTS' BUSINESS
ARRANGEMENTS, REGARDLESS OF COMPULSION OR INTENT TO DESTROY
COMPETITION.  THERE WAS MUCH EVIDENCE TENDING TO SHOW THIS HOBBLING OF
COMPETITION.  I THINK THAT THE ALLEGATIONS OF THE COMPLAINT WERE
SUFFICIENTLY BROAD TO PRESENT THIS ISSUE FOR ADJUDICATION BY THE
COURT.  MOREOVER, PRESENTATION OF THE ISSUE WAS EMPHASIZED BY THE FACT
THAT A LARGE AMOUNT OF EVIDENCE TO PROVE SUCCESSFUL ACCOMPLISHMENT OF
MONOPOLY OR RESTRAINTS OF TRADE WAS ADMITTED WITHOUT ANY OBJECTION BY
THE DEFENDANTS BASED ON VARIANCE FROM THE PLEADINGS.  SEE FEDERAL RULE
OF CIVIL PROCEDURE 15(B). 

THERE IS EVIDENCE IN THE RECORD TO THE EFFECT THAT AS A RESULT OF THE
CORPORATE ARRANGEMENTS HERE THE MANUFACTURING COMPANY OBTAINED
SUFFICIENT POWER TO DICTATE THE TERMS OF PURCHASES BY THE LOCAL
COMPANIES; THERE IS ALSO EVIDENCE THAT THOSE COMPANIES DID THEREAFTER
LIMIT THEIR PURCHASES OF TAXICABS ALMOST EXCLUSIVELY TO THOSE SOLD BY
THE MANUFACTURING DEFENDANT.  MOREOVER, THE EVIDENCE SHOWS THAT SUCH
TAXICABS WERE IN SOME INSTANCES BOUGHT BY THE LOCAL COMPANY AT PRICES
ABOVE THOSE PAID BY OTHER TAXICAB COMPANIES WHOLLY FREE TO BUY TAXICABS
IN A COMPETITIVE MARKET.  THIS EVIDENCE, IF ACCEPTED, WOULD SUPPORT A
FINDING OF ILLEGAL RESTRAINT OF TRADE OR MONOPOLY UNDER THE GRIFFITH
RULE.  I THINK THE CAUSE SHOULD BE REMANDED FOR THE TRIAL COURT TO
CONSIDER THE EVIDENCE AND MAKE FINDINGS ON THIS ASPECT OF THE CASE. 
..END :
















COLE V. ARKANSAS, 338 U.S. 345 


NO. 62.  ARGUED NOVEMBER 9, 1949.  - DECIDED DECEMBER 5, 1949.  - 214
ARK. 387, 216 S.W.2D 402, AFFIRMED. 


PETITIONERS WERE CONVICTED OF VIOLATING SEC. 2 OF ACT 193 OF THE
ARKANSAS ACTS OF 1943, WHICH MAKES IT UNLAWFUL "FOR ANY PERSON ACTING
IN CONCERT WITH ONE OR MORE OTHER PERSONS, TO ASSEMBLE AT OR NEAR ANY
PLACE WHERE A 'LABOR DISPUTE' EXISTS AND BY FORCE OR VIOLENCE PREVENT
OR ATTEMPT TO PREVENT ANY PERSON FROM ENGAGING IN ANY LAWFUL VOCATION,
OR FOR ANY PERSON ACTING EITHER BY HIMSELF, OR AS A MEMBER OF ANY GROUP
OR ORGANIZATION OR ACTING IN CONCERT WITH ONE OR MORE OTHER PERSONS, TO
PROMOTE, ENCOURAGE OR AID ANY SUCH UNLAWFUL ASSEMBLAGE."  THE STATE
SUPREME COURT AFFIRMED THE CONVICTION, INDICATING IN ITS OPINION THAT
AS TO ONE CHARGED WITH VIOLATION OF THE ITALICIZED PORTION, THE STATUTE
REQUIRES THAT THE ACCUSED SHALL HAVE AIDED THE ASSEMBLAGE WITH THE
INTENTION THAT FORCE AND VIOLENCE WOULD BE USED TO PREVENT A PERSON
FROM WORKING.  HELD: 

1.  BOTH THE TRIAL COURT AND THE STATE SUPREME COURT CONSTRUED THE
STATUTE AS NOT AUTHORIZING A CONVICTION FOR MERE PRESENCE IN AN
ASSEMBLAGE AT WHICH UNPLANNED AND UNCONCERTED VIOLENCE WAS PRECIPITATED
BY ANOTHER, AND THERE WAS NO DISPARITY BETWEEN THE INSTRUCTIONS OF THE
TRIAL COURT AND THE OPINION OF THE STATE SUPREME COURT IN THIS
RESPECT.  PP. 347-352. 

2.  AS APPLIED TO PETITIONERS, THE STATUTE DID NOT ABRIDGE THE
FREEDOM OF SPEECH OR OF ASSEMBLY GUARANTEED BY THE FEDERAL
CONSTITUTION.  PP. 352-354. 

3.  THE ACT IS NOT UNCONSTITUTIONALLY VAGUE, AND ITS APPLICATION IN
THIS CASE DID NOT VIOLATE DUE PROCESS OF LAW.  P. 354. 

COLE ET AL. V. ARKANSAS. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

ON THE REMAND ORDERED BY THIS COURT IN COLE V. ARKANSAS, 333 U.S.
196, THE STATE SUPREME COURT AGAIN AFFIRMED PETITIONERS' CONVICTION FOR
VIOLATION OF A STATE STATUTE.  214 ARK. 387, 216 S.W.2D 402.  THIS
COURT GRANTED CERTIORARI.  337 U.S. 929.  AFFIRMED, P. 354. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

IN DECEMBER 1945, 112 OF THE 117 EMPLOYEES OF AN OIL COMPANY,
INCLUDING PETITIONERS, WENT OUT ON STRIKE.  ABOUT FIVE O'CLOCK ONE
AFTERNOON, PETITIONERS, WITH SEVERAL OTHER STRIKERS, ASSEMBLED NEAR THE
PLANT'S ENTRANCE.  ALTHOUGH A PICKET LINE WAS NEARBY, THESE MEN WERE
NOT A PART OF IT, AND THERE IS NO SUGGESTION THAT THEIR ACTS WERE
ATTRIBUTABLE EITHER TO THE REGULAR PICKETS OR TO THE UNION REPRESENTING
THEM.  AS THE FIVE WORKING EMPLOYEES LEFT THE PLANT FOR THE DAY, THE
PETITIONER JONES CALLED OUT TO ONE NAMED WILLIAMS TO "WAIT A MINUTE, HE
WANTED TO TALK TO HIM."  WHEN WILLIAMS REPLIED THAT "HE DIDN'T HAVE
TIME, HE WAS ON HIS WAY HOME AND HE WOULD SEE HIM ANOTHER DAY,"
PETITIONER JONES GAVE A SIGNAL AND SAID, "COME ON, BOYS."  PETITIONER
COLE, WHO WAS CARRYING A STICK, TOLD ONE OF THE OTHER DEPARTING
EMPLOYEES "TO GO AHEAD ON, THAT THEY WASN'T AFTER ME."  ANOTHER STRIKER
NAMED CAMPBELL THEN ATTACKED WILLIAMS AND WAS KILLED IN THE ENSUING
STRUGGLE.  IT WAS FURTHER TESTIFIED THAT THESE PETITIONERS AND OTHERS
HAD THAT MORNING DISCUSSED TALKING TO THE MEN WHO WERE WORKING "AND
THEY AGREED THAT IF THEY DIDN'T TALK RIGHT, THEY WERE GOING TO WHIP
THEM."  WHILE SOME OF THIS WAS CONTRADICTED, SUCH IS THE VERSION WHICH
THE JURY COULD HAVE FOUND FROM THE EVIDENCE. 

THE PRESENT CASE HAS HAD A CURIOUSLY INVOLVED HISTORY.  CONVICTED IN
1946 OF A STATUTORY OFFENSE FOR THEIR PARTICIPATION IN THE FOREGOING,
PETITIONERS SECURED A REVERSAL IN THE SUPREME COURT OF ARKANSAS FOR
ERRORS IN THE TRIAL.  210 ARK. 433, 196 S.W.2D 583.  FOLLOWING THE
RETRIAL, PETITIONERS' SECOND CONVICTION WAS AFFIRMED, 211 ARK. 836, 202
S.W.2D 770; AND WE GRANTED CERTIORARI AND REVERSED ON THE GROUND THAT
THE AFFIRMANCE BELOW HAD BEEN BASED UPON A SECTION OF THE STATUTE OTHER
THAN THAT FOR VIOLATION OF WHICH THESE PETITIONERS HAD BEEN TRIED AND
CONVICTED.  COLE V. ARKANSAS, 333 U.S. 196.  FN1  ON REMAND, THE STATE
SUPREME COURT HAS RECONSIDERED THE APPEAL AND HAS AGAIN AFFIRMED IN AN
OPINION SUSTAINING THE CONVICTIONS UNDER THE SECTION OF THE STATUTE ON
WHICH THE PROSECUTION WAS BASED.  214 ARK. 387, 216 S.W.2D 402.  DOUBTS
AS TO WHETHER THE MANDATE IN OUR EARLIER DECISION HAD BEEN OBEYED LED
US TO GRANT CERTIORARI.  337 U.S. 929. 

IT APPEARS ON THE SURFACE, AT LEAST, THAT THE SUPREME COURT OF
ARKANSAS HAS ATTEMPTED TO COMPLY WITH OUR MANDATE AND HAS NOW PLACED
ITS AFFIRMANCE UPON THE SAME SECTION OF THE STATUTE AS THAT UPON WHICH
THE TRIAL COURT SUBMITTED THE CASE TO THE JURY.  THE OBJECTION TO THIS
AFFIRMANCE IS, HOWEVER, MUCH MORE SUBTLE AND FAR-REACHING THAN THAT
INVOLVED IN OUR PREVIOUS DECISION.  THERE IT WAS CLEAR THAT THE
ARKANSAS SUPREME COURT'S AFFIRMANCE WAS BASED UPON AN ENTIRELY
DIFFERENT STATUTORY OFFENSE FROM THAT CHARGED AND UNDER WHICH THE CASE
WAS SUBMITTED TO THE JURY.  IT IS NOW CLAIMED THAT, ALTHOUGH THEY BOTH
DEALT WITH THE SAME SECTION OF THE ACT INVOLVED, THE TRIAL COURT AND
THE APPELLATE COURT ADOPTED CONTRASTING INTERPRETATIONS OF THAT

IN ADDITION TO THIS CONTENTION, THAT THE PREVIOUS ERROR HAS BEEN
REPEATED, IT IS ALSO CLAIMED THAT THE STATUTE NOW INVOLVED VIOLATES THE
FEDERAL CONSTITUTION IN THAT IT ABRIDGES FREEDOM OF SPEECH AND
ASSEMBLY, AND THAT THE CHARGE AND STATUTE ARE TOO VAGUE AND INDEFINITE
TO CONFORM TO DUE PROCESS.  ALL THREE CLAIMS INVOLVE SERIOUS CHARGES OF
ERROR, AND IF ANY ONE CAN BE SUPPORTED, PETITIONERS ARE ENTITLED TO
PREVAIL. 


"IT SHALL BE UNLAWFUL FOR ANY PERSON ACTING IN CONCERT WITH ONE OR
MORE OTHER PERSONS, TO ASSEMBLE AT OR NEAR ANY PLACE WHERE A 'LABOR
DISPUTE' EXISTS AND BY FORCE OR VIOLENCE PREVENT OR ATTEMPT TO PREVENT
ANY PERSON FROM ENGAGING IN ANY LAWFUL VOCATION, OR FOR ANY PERSON
ACTING EITHER BY HIMSELF, OR AS A MEMBER OF ANY GROUP OR ORGANIZATION
OR ACTING IN CONCERT WITH ONE OR MORE OTHER PERSONS, TO PROMOTE,
ENCOURAGE OR AID ANY SUCH UNLAWFUL ASSEMBLAGE...." 

IN THE OPINION UNDER REVIEW, THE SUPREME COURT OF ARKANSAS HAS
INDICATED THAT AS TO ONE CHARGED WITH A VIOLATION OF THE ITALICIZED
PORTION, THE STATUTE REQUIRES THAT THE ACCUSED AID THE ASSEMBLAGE WITH
THE INTENTION THAT FORCE AND VIOLENCE WOULD BE USED TO PREVENT A PERSON
FROM WORKING.  PETITIONERS' QUARREL, HOWEVER, IS NOT WITH THIS
CONSTRUCTION.  INSTEAD, PETITIONERS CONTEND THAT IN THE TRIAL COURT, AS
THE STATUTE WAS CONSTRUED AND AS THE CASE WAS SUBMITTED TO THE JURY,
THEIR CONVICTIONS RESTED UPON THE THEORY THAT NO MORE WAS REQUIRED THAN
MERE PRESENCE IN A GROUP WHERE UNPLANNED AND UNCONCERTED VIOLENCE WAS
PRECIPITATED BY ANOTHER.  THE REQUIREMENTS OF KNOWLEDGE AND INTENT,
THEY CLAIM, WERE "READ INTO" THE STATUTE FOR THE FIRST TIME BY THE
APPELLATE COURT ON REVIEW, AND WERE ABSENT IN THE TRIAL COURT. 

IT THUS BECOMES APPARENT THAT UNDERLYING EACH OF THE THREE
CONTENTIONS ADVANCED ON BEHALF OF THESE PETITIONERS IS THE BASIC
PREMISE THAT THEIR CASE WAS SUBMITTED TO THE JURY ON THE THEORY THAT
NOTHING MORE WAS NEEDED TO CONVICT THEM THAN MERE PRESENCE AT AN
ASSEMBLAGE WHERE VIOLENCE OCCURRED WITHOUT THEIR PARTICIPATION,
CONCERT, OR PREVIOUS KNOWLEDGE.  THIS IS THE FOUNDATION, NOT ONLY OF
THE CLAIM THAT THE TRIAL COURT AND THE APPELLATE COURT ADOPTED
CONTRASTING INTERPRETATIONS OF THE ACT THEY ARE SAID TO HAVE VIOLATED,
BUT ALSO OF THE CLAIM THAT APPLICATION OF THAT ACT OFFENDS THE
FUNDAMENTAL RIGHTS OF SPEECH AND ASSEMBLY PROTECTED FROM STATE
DEPRIVATION BY THE FOURTEENTH AMENDMENT.  SIMILARLY THE ALLEGED
DIFFERENCE BETWEEN THE TRIAL COURT AND THE APPELLATE COURT IN RENDERING
THE ACT IS THE BASIS OF THE ARGUMENT THAT IT IS CONSTITUTIONALLY
INVALID FOR VAGUENESS, IT BEING CONTENDED HERE THAT IN THIS VERY CASE
THE ACT HAS BEEN DEMONSTRATED TO BE SUSCEPTIBLE OF AT LEAST TWO
DIFFERENT INTERPRETATIONS IN THE ARKANSAS COURTS. 

DID THE TRIAL COURT AUTHORIZE THE JURY TO CONVICT FOR MERE PRESENCE
IN AN ASSEMBLAGE WHERE UNPLANNED AND UNINTENDED VIOLENCE OCCURRED? 
THIS IS THE BASIS OF THE PLEA FOR REVERSAL AND WE TURN TO THE RECORD TO
ASCERTAIN WHETHER OR NOT IT IS JUSTIFIED. 

THE INFORMATION ON WHICH THE PETITIONERS WERE TRIED SET FORTH THAT
CAMPBELL IN CONCERT WITH OTHERS HAD ASSEMBLED AT THE PLANT WHERE A
LABOR DISPUTE EXISTED AND BY FORCE AND VIOLENCE PREVENTED WILLIAMS FROM
ENGAGING IN A LAWFUL VOCATION.  IT THEN CHARGED THAT "THE SAID ROY COLE
(AND) LOUIS JONES  ...  DID UNLAWFULLY AND FELONIOUSLY, ACTING IN
CONCERT WITH EACH OTHER, PROMOTE, ENCOURAGE AND AID SUCH UNLAWFUL
ASSEMBLAGE, AGAINST THE PEACE AND DIGNITY OF THE STATE OF ARKANSAS." 
FN2 

AS WE HAVE NOTED IN COLE V. ARKANSAS, SUPRA, 198, THE LANGUAGE
EMPLOYED IN THE INFORMATION IS SUBSTANTIALLY IDENTICAL WITH THAT OF
SEC. 2 OF THE ARKANSAS ACT. 

IN EXPLAINING THE ACT, WHICH WAS READ TO THE JURY, THE TRIAL COURT
SAID THAT IT INCLUDED TWO OFFENSES, "  ...  FIRST, THE CONCERT OF
ACTION BETWEEN TWO OR MORE PERSONS RESULTING IN THE PREVENTION OF A
PERSON BY MEANS OF FORCE AND VIOLENCE FROM ENGAGING IN A LAWFUL
VOCATION.  AND, SECOND, IN PROMOTING, ENCOURAGING OR AIDING OF SUCH
UNLAWFUL ASSEMBLAGE BY CONCERT OF ACTION AMONG THE DEFENDANTS AS IS
CHARGED IN THE INFORMATION HERE.  THE LATTER OFFENSE IS THE ONE ON
TRIAL IN THIS CASE." 

IN HIS SECOND INSTRUCTION, THE TRIAL COURT CHARGED THAT "  ...  IF
YOU FURTHER BELIEVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANTS
WILFULLY, UNLAWFULLY AND FELONIOUSLY, WHICH (WHILE) ACTING IN CONCERT
WITH EACH OTHER, PROMOTED, ENCOURAGED AND AIDED SUCH UNLAWFUL
ASSEMBLAGE, YOU WILL CONVICT THE DEFENDANTS AS CHARGED IN THE
INDICTMENT." 

NEEDLESS TO SAY, THE DEFENDANTS PRESENTED NO REQUEST FOR A CHARGE
THAT WOULD CONSTRUE THE STATUTE AS UNFAVORABLE TO THEMSELVES AS THEY
NOW CONTEND IT WAS CONSTRUED.  TO THE CONTRARY, AN OPPOSITE
CONSTRUCTION WAS EMBODIED IN THE DEFENDANTS' REQUESTS TO CHARGE, ALL OF
WHICH, WITH MINOR VARIATIONS, WERE GRANTED SAVE ONE WHICH DUPLICATED A
CHARGE EARLIER MADE BY THE COURT.  THE NINTH INSTRUCTION REQUESTED BY
THE DEFENDANTS AND GRANTED BY THE COURT, SAID:  "THE COURT INSTRUCTS
YOU THAT MERE FACT, IF YOU FIND IT TO BE A FACT THAT THE DEFENDANTS, OR
EITHER OF THEM, WERE PRESENT AT THE TIME OF AN ALTERCATION BETWEEN
CAMPBELL AND WILLIAMS, SUCH FACT ALONE WOULD NOT JUSTIFY YOU IN FINDING
THE DEFENDANTS OR EITHER OF THEM GUILTY." 

BUT IT IS CONTENDED THAT SOME PORTIONS OF THE OPINION OF THE SUPREME
COURT OF ARKANSAS APPARENTLY "READ INTO" THE STATUTE THE REQUIREMENT
THAT THE ACCUSED "PROMOTED, ENCOURAGED AND AIDED THE ASSEMBLAGE - WHICH
WAS UNLAWFUL BECAUSE OF ITS PURPOSE AND ITS ACCOMPLISHED RESULTS," AND
THAT IT SUSTAINED THE CONVICTIONS UPON A CONCLUSION FROM THE EVIDENCE
THAT "THE DEFENDANTS PARTICIPATED, AIDED, ENCOURAGED AND ABETTED IN AN
AGREEMENT WITH OTHERS TO THE EFFECT THAT THE WORKERS  ...  WOULD BE
WHIPPED IF THEY DID NOT AGREE TO QUIT WORK."  PETITIONERS ARGUE THAT
THIS REQUIREMENT OF PURPOSE AND KNOWLEDGE WAS SUPPLIED AS AN ADDITIONAL
ELEMENT BY THE APPELLATE COURT, AND THAT IN SO DOING THAT COURT
DEPARTED EVEN FURTHER FROM THE CONSTRUCTION OF THE TRIAL COURT.  BUT
THE QUESTION WAS BEFORE THE JURY IN ALMOST THE VERY LANGUAGE
PETITIONERS OBJECT TO AS ORIGINATING IN THE STATE SUPREME COURT.  "YOU
ARE INSTRUCTED," SAID THE TRIAL COURT IN GIVING A CHARGE REQUESTED BY
THESE PETITIONERS, "THAT BEFORE THE DEFENDANTS, OR EITHER OF THEM CAN
BE CONVICTED IN THIS CASE, YOU MUST BE CONVINCED BEYOND A REASONABLE
DOUBT THAT THEY PROMOTED, ENCOURAGED, AND AIDED IN AN UNLAWFUL
ASSEMBLAGE AT THE PLANT OF THE SOUTHERN COTTON OIL COMPANY, FOR THE
PURPOSE OF PREVENTING OTHA WILLIAMS FROM ENGAGING IN A LAWFUL
VOCATION." 

WE DO NOT FIND ANY SUCH DISPARITY BETWEEN THE INSTRUCTIONS AND THE
OPINION OF THE SUPREME COURT AS IS SUGGESTED.  AT MOST, THE APPELLATE
COURT SPELLED OUT WHAT IS IMPLICIT IN THE INSTRUCTIONS OF THE TRIAL
COURT, AND BOTH WERE AGREED THAT THE STATUTE AUTHORIZED NO CONVICTION
FOR A MERE PRESENCE IN AN ASSEMBLAGE AT WHICH UNPLANNED AND UNCONCERTED
VIOLENCE WAS PRECIPITATED BY ANOTHER. 

WHAT WE HAVE ALREADY SAID DISPOSES OF THE CONTENTION THAT THIS ACT AS
APPLIED TO PETITIONERS ABRIDGES FREEDOM OF ASSEMBLY.  FOR THIS
ARGUMENT, TOO, RESTS ON THE ASSUMPTION THAT THIS ACT PENALIZES FOR MERE
PRESENCE IN A GATHERING WHERE VIOLENCE OCCURS.  AS WE HAVE POINTED OUT,
THE STATUTORY TEXT DOES NOT SO READ, THE CHARGE OF THE TRIAL COURT
EXPRESSLY NEGATIVED THIS CONSTRUCTION AT THE DEFENDANTS' OWN REQUEST,
AND THEY THEMSELVES HAVE COMPLAINED OF THE APPELLATE COURT THAT IT WENT
EVEN FURTHER IN THIS DIRECTION. 

ACCORDINGLY, WE ARE NOT CALLED UPON TO DECIDE WHETHER A STATE HAS
POWER TO INCRIMINATE BY HIS MERE PRESENCE AN INNOCENT MEMBER OF A GROUP
WHEN SOME INDIVIDUAL WITHOUT HIS ENCOURAGEMENT OR CONCERT COMMITS AN
ACT OF VIOLENCE.  IT WILL BE TIME ENOUGH TO REVIEW SUCH A QUESTION AS
THAT WHEN IT IS ASKED BY ONE WHO OCCUPIES SUCH A STATUS.  EVIDENTLY
THESE PETITIONERS, IN THE MINDS OF THE JURY, AT LEAST, DID NOT.  FN3
FOR, AS WE HAVE SEEN, THE CASE WAS SUBMITTED UNDER A STATUTORY
CONSTRUCTION AND CHARGE WHICH FORBADE CONVICTION WITHOUT BELIEF THAT
THE PETITIONERS AIDED THE ASSEMBLAGE "FOR THE PURPOSE OF PREVENTING
OTHA WILLIAMS FROM ENGAGING IN A LAWFUL VOCATION." 

AS DEFINED BY THE ARKANSAS SUPREME COURT, AN UNLAWFUL ASSEMBLY, THE
AIDING OF WHICH IS PROHIBITED, IS "  ...  ONE WHERE PERSONS ACTING IN
CONCERT HAVE ASSEMBLED IN AN ATTEMPT TO PREVENT BY FORCE OR VIOLENCE
SOME OTHER PERSON FROM ENGAGING IN A LAWFUL OCCUPATION." 

CERTAINLY THE ACT BEFORE US DOES NOT PENALIZE THE PROMOTION,
ENCOURAGEMENT, OR FURTHERANCE OF PEACEFUL ASSEMBLY AT OR NEAR ANY PLACE
WHERE A LABOR DISPUTE EXISTS, NOR DOES IT INFRINGE THE RIGHT OF
EXPRESSION OF VIEWS IN ANY LABOR DISPUTE. 

QUITE ANOTHER QUESTION IS INVOLVED WHEN ONE IS CONVICTED OF
PROMOTING, ENCOURAGING AND AIDING AN ASSEMBLAGE THE PURPOSE OF WHICH IS
TO WREAK VIOLENCE.  SUCH AN ASSEMBLAGE HAS BEEN DENOMINATED UNLAWFUL BY
THE ARKANSAS LEGISLATURE, AND IT IS NO ABRIDGMENT OF FREE SPEECH OR
ASSEMBLY FOR THE CRIMINAL SANCTIONS OF THE STATE TO FASTEN THEMSELVES
UPON ONE WHO HAS ACTIVELY AND CONSCIOUSLY ASSISTED THEREIN. 

SIMILARLY WE FIND NO MERIT IN PETITIONERS' CONTENTION THAT THE
ARKANSAS STATUTE IS UNCONSTITUTIONALLY VAGUE, SO THAT ITS APPLICATION
IN THIS CASE VIOLATED DUE PROCESS OF LAW.  HERE AGAIN THE PREMISE UPON
WHICH THE ARGUMENT IS PRESENTED TO US IS THAT THE TWO ARKANSAS COURTS
DIFFERED IN CONSTRUING THE STATUTE, AND WE ARE ASKED TO CONCLUDE FROM
THIS FACT THAT THE TEST OF DEFINITENESS WHICH CRIMINAL STATUTES MUST
MEET UNDER THE DUE PROCESS CLAUSE, INTERNATIONAL HARVESTER CO. V.
KENTUCKY, 234 U.S. 216, 223, HAS NOT BEEN MET.  SINCE WE CANNOT ASSUME
THAT THE TWO COURTS WERE AT ODDS IN THEIR INTERPRETATION OF THE
STATUTE, WE FIND IT UNNECESSARY TO EXPLORE THE QUESTION AS TO WHETHER
SUCH DISCREPANCY, IF IT EXISTED, WOULD CONSTITUTE A BASIS FOR
CONCLUDING THAT THE CONSTITUTIONAL STANDARDS HAVE NOT BEEN ACHIEVED. 
WE THINK THAT SEC. 2, ACT 193, ACTS OF ARKANSAS 1943, FAIRLY APPRISES
MEN OF ORDINARY INTELLIGENCE THAT FOR TWO OR MORE TO ASSEMBLE AND BY
FORCE OR VIOLENCE PREVENT OR ATTEMPT TO PREVENT ANOTHER FROM ENGAGING
IN ANY LAWFUL VOCATION CONSTITUTES AN UNLAWFUL ASSEMBLAGE, AND THAT THE
PROMOTION, ENCOURAGEMENT OR AIDING THEREOF IS UNLAWFUL.  JUDGMENT
AFFIRMED.    FN1  ACT 193, ACTS OF ARKANSAS 1943, PROVIDES IN PERTINENT
PART:    "SECTION 1.  IT SHALL BE UNLAWFUL FOR ANY PERSON BY THE USE OF
FORCE OR VIOLENCE, OR THREAT OF THE USE OF FORCE OR VIOLENCE, TO
PREVENT OR ATTEMPT TO PREVENT ANY PERSON FROM ENGAGING IN ANY LAWFUL
VOCATION WITHIN THIS STATE.  ... 

"SECTION 2.  IT SHALL BE UNLAWFUL FOR ANY PERSON ACTING IN CONCERT
WITH ONE OR MORE OTHER PERSONS, TO ASSEMBLE AT OR NEAR ANY PLACE WHERE
A 'LABOR DISPUTE' EXISTS AND BY FORCE OR VIOLENCE PREVENT OR ATTEMPT TO
PREVENT ANY PERSON FROM ENGAGING IN ANY LAWFUL VOCATION, OR FOR ANY
PERSON ACTING EITHER BY HIMSELF, OR AS A MEMBER OF ANY GROUP OR
ORGANIZATION OR ACTING IN CONCERT WITH ONE OR MORE OTHER PERSONS, TO
PROMOTE, ENCOURAGE OR AID ANY SUCH UNLAWFUL ASSEMBLAGE.  ...  " 

THE SUPREME COURT OF ARKANSAS HAD AFFIRMED THE PETITIONERS'
CONVICTIONS ON THE BASIS OF SEC. 1 OF THE ABOVE STATUTE, ALTHOUGH, AS
WE OBSERVED, BOTH THE INFORMATION DRAWN AGAINST THE PETITIONERS AND THE
CHARGE TO THE JURY REFERRED IN UNMISTAKABLE TERMS TO A VIOLATION, NOT
OF SEC. 1, BUT OF SEC. 2.  ACCORDINGLY WE REVERSED, HOLDING IT A
VIOLATION OF DUE PROCESS FOR THE APPELLATE COURT TO APPRAISE AND AFFIRM
PETITIONERS' CONVICTIONS ON CONSIDERATIONS OTHER THAN THOSE GOVERNING
THE CASE AS IT WAS TRIED AND AS THE ISSUES WERE DETERMINED IN THE TRIAL
COURT. 

FN2  THE ENTIRE INFORMATION WAS AS FOLLOWS:  "COMES SAM ROBINSON,
PROSECUTING ATTORNEY WITHIN AND FOR PULASKI COUNTY, ARKANSAS, AND IN
THE NAME, BY THE AUTHORITY, AND ON BEHALF OF THE STATE OF ARKANSAS
INFORMATION GIVES ACCUSING ROY COLE, LOUIS JONES AND JESSIE BEAN OF THE
CRIME OF FELONY, COMMITTED AS FOLLOWS TO-WIT:  ON THE 26TH DAY OF
DECEMBER, A.D. 1945, IN PULASKI COUNTY, ARKANSAS, WALTER TED CAMPBELL,
ACTING IN CONCERT WITH OTHER PERSONS, ASSEMBLED AT THE SOUTHERN COTTON
OIL COMPANY'S PLANT IN PULASKI COUNTY, ARKANSAS, WHERE A LABOR DISPUTE
EXISTED, AND BY FORCE AND VIOLENCE PREVENTED OTHA WILLIAMS FROM
ENGAGING IN A LAWFUL VOCATION.  THE SAID ROY COLE, LOUIS JONES AND
JESSIE BEAN, IN THE COUNTY AND STATE AFORESAID, ON THE 26TH DAY OF
DECEMBER, 1945, DID UNLAWFULLY AND FELONIOUSLY, ACTING IN CONCERT WITH
EACH OTHER, PROMOTE, ENCOURAGE AND AID SUCH UNLAWFUL ASSEMBLAGE,
AGAINST THE PEACE AND DIGNITY OF THE STATE OF ARKANSAS." 

FN3  ONE WITNESS, WHOM THE JURY WAS ENTITLED TO BELIEVE, TESTIFIED AS
FOLLOWS: 

"Q.  YOU SAY YOU WERE DOWN AT THE TENT THAT MORNING? 

"A.  YES, SIR. 

"Q. WHEN THESE DEFENDANTS HERE, LOUIS JONES AND THE OTHERS, WERE IN A
DISCUSSION AND WERE TALKING ABOUT TALKING TO THE MEN THAT WERE
WORKING? 

"A.  YES, SIR. 

"Q.  AND THEY AGREED THAT IF THEY DIDN'T TALK RIGHT, THEY WERE GOING
TO WHIP THEM? 

"A.  YES, SIR." 

FACTS DEMONSTRATING THE CONSUMMATION OF THIS PLAN WERE GIVEN TO THE
JURY BY THE TESTIMONY OF ANOTHER WITNESS.  AS THE MEN NOT ON STRIKE
WERE LEAVING THE PLANT, PETITIONER JONES, ACCORDING TO THE WITNESS,
CALLED UPON WILLIAMS "  ...  TO WAIT A MINUTE, HE WANTED TO TALK TO
HIM, AND OTHA TOLD HIM HE DIDN'T HAVE TIME, HE WAS ON HIS WAY HOME AND
HE WOULD SEE HIM ANOTHER DAY. 

"Q.  DID HE DO ANYTHING ELSE? 

"A.  HE GAVE A SIGNAL AND SAID 'COME ON, BOYS.'  ... 

"Q.  WHAT HAPPENED AFTER LOUIS JONES GAVE THE SIGNAL AND SAID 'COME
ON, BOYS'? 

"A.  THEY FLEW UP LIKE BLACKBIRDS AND CAME FIGHTING." 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















COLGATE CO. V. LABOR BOARD, 338 U.S. 355 


NO. 47.  ARGUED NOVEMBER 17, 1949.  - DECIDED DECEMBER 5, 1949.  - 171
F.2D 956, REVERSED. 


AN EMPLOYER AND A LABOR ORGANIZATION ENTERED INTO A CLOSED-SHOP
AGREEMENT WHICH WAS VALID UNDER THE NATIONAL LABOR RELATIONS ACT AND
UNDER STATE LAW.  THE AGREEMENT, WHICH THE EMPLOYER HAD ENTERED INTO IN
GOOD FAITH, WAS OF INDEFINITE DURATION AND HAD BEEN IN EFFECT MORE THAN
FOUR YEARS.  PURSUANT TO THE AGREEMENT, UPON THE DEMAND OF THE LABOR
ORGANIZATION AND IN GOOD FAITH, THE EMPLOYER DISCHARGED CERTAIN
EMPLOYEES WHOM THE LABOR ORGANIZATION HAD EXPELLED FROM MEMBERSHIP ON
ACCOUNT OF THEIR ACTIVITY IN BEHALF OF A RIVAL LABOR ORGANIZATION.  THE
NATIONAL LABOR RELATIONS BOARD THEREUPON FOUND THAT THE EMPLOYER HAD
VIOLATED SECS. 8(1) AND 8(3) OF THE ACT, AND ORDERED THE DISCHARGED
EMPLOYEES RESTORED TO THEIR FORMER POSITIONS WITHOUT LOSS OF SENIORITY
AND PAY.  HELD:  THE ORDER OF THE BOARD WAS NOT AUTHORIZED BY THE ACT
AND WAS NOT ENTITLED TO ENFORCEMENT.  PP. 356-365. 

(A)  THE APPLICATION OF THE SO-CALLED RUTLAND COURT DOCTRINE,
EMBODYING A POLICY OF THE LABOR BOARD, IS REJECTED, SINCE THE BOARD
CANNOT IGNORE THE PLAIN PROVISIONS OF A VALID CONTRACT MADE IN
ACCORDANCE WITH THE LETTER AND THE SPIRIT OF THE STATUTE AND REFORM IT
TO CONFORM TO THE BOARD'S IDEA OF CORRECT POLICY.  PP. 362-364. 

(B)  WALLACE CORP. V. LABOR BOARD, 323 U.S. 248, DISTINGUISHED.  PP.
364-365. 

COLGATE-PALMOLIVE-PEET CO. V. NATIONAL LABOR RELATIONS BOARD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 70 N.L.R.B. 1202,
REQUIRING PETITIONER TO RESTORE CERTAIN DISCHARGED EMPLOYEES TO THEIR
FORMER POSITIONS WITHOUT LOSS OF SENIORITY AND PAY, WAS GRANTED
ENFORCEMENT BY THE COURT OF APPEALS.  171 F.2D 956.  THIS COURT GRANTED
CERTIORARI.  337 U.S. 913.  REVERSED, P. 365. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION WE HAVE HERE IS WHETHER A CLOSED-SHOP CONTRACT, ENTERED
INTO AND PERFORMED IN GOOD FAITH, AND VALID IN THE STATE WHERE MADE,
PROTECTS AN EMPLOYER FROM A CHARGE OF UNFAIR LABOR PRACTICES UNDER THE
NATIONAL LABOR RELATIONS ACT.  FN1 

PETITIONER WAS FOUND BY THE NATIONAL LABOR RELATIONS BOARD TO HAVE
VIOLATED SECS. 8(1) AND 8(3) OF THE ACT.  FN2  ON PETITION FOR REVIEW
AND CROSS-PETITION OF THE BOARD FOR ENFORCEMENT OF ITS ORDER, THE COURT
OF APPEALS FOR THE NINTH CIRCUIT ENTERED A DECREE ENFORCING THE BOARD'S
ORDER.  FN3  WE GRANTED CERTIORARI LIMITED TO THE QUESTION OF THE
CONSTRUCTION OF SEC. 8(3) OF THE ACT IN RELATION TO THIS CASE,  FN4
I.E., TO EXAMINE THE APPLICABILITY OF THE SO-CALLED RUTLAND COURT
DOCTRINE,  FN5  HERE APPLIED BY THE BOARD.  THE DOCTRINE HAS BEEN
APPROVED IN THE SECOND,  FN6 THIRD,  FN7  AND NINTH CIRCUITS,  FN8  BUT
DISAPPROVED IN THE SEVENTH CIRCUIT.  FN9 

AT THE PERIOD OF TIME IN QUESTION IN 1945, PETITIONER COMPANY WAS
ENGAGED IN PRODUCING GLYCERIN FOR WAR PURPOSES.  PETITIONER HAS NO
RECORD OF ANTIUNION OR ANTIORGANIZATIONAL ACTIVITIES.  ITS EMPLOYEES
WERE FIRST ORGANIZED AND REPRESENTED IN 1936 BY A UNION AFFILIATED WITH
THE AMERICAN FEDERATION OF LABOR.  IN 1938 THE INTERNATIONAL
LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, AFFILIATED WITH THE CONGRESS
OF INDUSTRIAL ORGANIZATIONS, BECAME THE REPRESENTATIVE OF PETITIONER'S
EMPLOYEES.  ON JULY 9, 1941, THE C.I.O. ENTERED INTO A COLLECTIVE
BARGAINING CONTRACT WITH PETITIONER WHICH CONTAINED A CLOSED-SHOP
PROVISION IN THESE WORDS: 

"SECTION 3.  THE EMPLOYER AGREES THAT WHEN NEW EMPLOYEES ARE TO BE
HIRED TO DO ANY WORK COVERED BY SECTION ONE (1), THEY SHALL BE HIRED
THRU THE OFFICES OF THE UNION, PROVIDED THAT THE UNION SHALL BE ABLE TO
FURNISH COMPETENT WORKERS FOR WORK REQUIRED.  IN THE EVENT THE UNION IS
UNABLE TO FURNISH COMPETENT WORKERS, THE EMPLOYER MAY HIRE FROM OUTSIDE
SOURCES, PROVIDED THAT EMPLOYEES SO HIRED SHALL MAKE APPLICATION FOR
MEMBERSHIP IN THE UNION WITHIN FIFTEEN (15) DAYS OF THEIR EMPLOYMENT. 
THE EMPLOYEES COVERED BY THIS AGREEMENT SHALL BE MEMBERS IN GOOD
STANDING OF THE UNION AND THE EMPLOYER SHALL EMPLOY NO WORKERS OTHER
THAN MEMBERS OF THE UNION SUBJECT TO CONDITIONS HEREIN ABOVE
PRESCRIBED.  IN THE HIRING OF NEW HELP (FOR THE WAREHOUSES), THEY SHALL
BE HIRED THROUGH THE OFFICES OF THE WAREHOUSE UNION, LOCAL 1-6,
I.L.W.U." 

THIS CONTRACT WAS ENTERED INTO IN GOOD FAITH BY THE PARTIES AND
SERVED AS A FOUNDATION FOR AMICABLE LABOR RELATIONS FOR OVER FOUR
YEARS.  IT WAS OF INDEFINITE DURATION.  ON JULY 24, 1945, THE C.I.O.
AND PETITIONER ENTERED INTO A SUPPLEMENTAL AGREEMENT THAT THEIR
CONTRACT OF JULY 9, 1941, "SHALL REMAIN IN FULL FORCE AND EFFECT"
PENDING APPROVAL OF CERTAIN AGREED-UPON ITEMS, OTHER THAN THE CLOSED
SHOP PROVISION, BY THE WAR LABOR BOARD.  IN THE INSTANT PROCEEDINGS,
THE CLOSED-SHOP CONTRACT, AS EXTENDED BY THE SUPPLEMENTAL AGREEMENT,
WAS FOUND BY THE NATIONAL LABOR RELATIONS BOARD TO HAVE BEEN MADE IN
COMPLIANCE WITH THE PROVISO OF SEC. 8(3) OF THE ACT.  FN10 

ON JULY 26, 1945, SHORTLY AFTER THE MAKING OF THE SUPPLEMENTAL
AGREEMENT, OPEN AGITATION FOR A CHANGE OF BARGAINING REPRESENTATIVE
BEGAN.  ON JULY 31 AN UNAUTHORIZED STRIKE OCCURRED WHICH WAS
PARTICIPATED IN BY A SUBSTANTIAL MAJORITY OF THE EMPLOYEES AND LASTED
TWO AND ONE-HALF DAYS, ALTHOUGH THE C.I.O. HAD PLEDGED ITS MEMBERSHIP
NOT TO STRIKE DURING WARTIME.  A GROUP OF EMPLOYEES FORMED AN
INDEPENDENT ORGANIZATION WHICH LATER SOUGHT TO AFFILIATE WITH THE A.F.
OF L. THERE WAS MUCH PROPAGANDIZING AMONG THE EMPLOYEES AND WARNINGS
WERE ISSUED BY THE C.I.O. THAT ITS MEMBERS WOULD BE DISCIPLINED FOR
RIVAL UNION ACTIVITY, AND WOULD IF DISCIPLINED BE DISCHARGED FROM THEIR
JOBS UNDER THE CLOSED-SHOP CONTRACT WITH PETITIONER. 

ALTOGETHER SOME 37 EMPLOYEES WERE SUSPENDED AND EXPELLED BY THE
C.I.O. FOR THEIR ACTIVITIES IN BEHALF OF THE A.F. OF L. UNION DURING
THE FIGHT BETWEEN THE TWO UNIONS FOR CONTROL, AND BECAUSE OF THEIR
PARTICIPATION IN THE STRIKE CONTRARY TO C.I.O. POLICY.  THESE SUSPENDED
AND EXPELLED EMPLOYEES WERE DISCHARGED BY PETITIONER, WITH THE ADVICE
OF COUNSEL, UPON DEMAND BY THE C.I.O. THE GROUND OF THE DEMAND WAS THAT
THEY WERE NO LONGER "MEMBERS IN GOOD STANDING" OF THE C.I.O. AS
REQUIRED BY THE CLOSED-SHOP CONTRACT.  PETITIONER KNEW, AS THE BOARD
FOUND, THAT THE DISCHARGE OF THESE EMPLOYEES WAS DEMANDED BY THE C.I.O.
BECAUSE OF THEIR RIVAL UNION ACTIVITY. 

ON OCTOBER 16 THE C.I.O. WON AN ELECTION HELD BY THE BOARD TO
DETERMINE THE BARGAINING REPRESENTATIVE OF PETITIONER'S EMPLOYEES, AND
THE OPEN HOSTILITIES WERE SUBSTANTIALLY CONCLUDED.  FN11 

PETITIONER WAS CHARGED WITH VIOLATION OF SEC. 8(1) AND SEC. 8(3) OF
THE ACT AND FOUND GUILTY THEREOF BY THE BOARD FOR HAVING CARRIED OUT
THE TERMS OF THE CLOSED-SHOP CONTRACT AT THE REQUEST OF THE BARGAINING
REPRESENTATIVE.  THE BOARD ORDERED PETITIONER TO RESTORE THE EMPLOYEES
DISCHARGED AT THE REQUEST OF THE C.I.O. TO THEIR FORMER POSITIONS
WITHOUT LOSS OF SENIORITY AND PAY.  IT IS THIS ORDER WHICH THE COURT OF
APPEALS DECREED SHOULD BE ENFORCED AND THAT IS HERE FOR REVIEW. 

THERE IS NO QUESTION BUT THAT THE DISCHARGES HAD THE EFFECT OF
INTERFERING WITH THE EMPLOYEES' RIGHT, GIVEN BY SEC. 7 OF THE ACT, TO
SELF-ORGANIZATION AND TO COLLECTIVE BARGAINING THROUGH REPRESENTATIVES
OF THEIR OWN CHOOSING.  NOR IS THERE ANY QUESTION BUT THAT THE
DISCHARGES HAD THE EFFECT OF DISCRIMINATING, CONTRARY TO THE
PROHIBITION OF SEC. 8(3), IN THE TENURE OF THE EMPLOYEES.  IT IS
PETITIONER'S CONTENTION THAT SUCH INTERFERENCE AND DISCRIMINATION ARE
TAKEN OUT OF THE CATEGORY OF UNFAIR LABOR PRACTICES WHERE THE EMPLOYEES
ARE DISCHARGED IN GOOD FAITH, PURSUANT TO AN EMPLOYER'S OBLIGATIONS
UNDER A VALID CLOSED-SHOP CONTRACT ENTERED INTO IN GOOD FAITH WITH THE
AUTHORIZED REPRESENTATIVE OF THE EMPLOYEES, AS PERMITTED BY THE PROVISO
CONTAINED IN SEC. 8(3) OF THE ACT.  FN12  THE BOARD ADMITS THAT
PETITIONER'S CONTENTION IS SUPPORTED BY THE PROVISO IN SEC. 8(3) BUT
SAYS THAT A CONTRACT OF INDEFINITE DURATION SUCH AS THE ONE IN THE
INSTANT CASE IS SUBJECT TO THE DOCTRINE OF RUTLAND COURT OWNERS, INC.,
44 N.L.R.B. 587, 46 N.L.R.B. 1040.  IN THE RUTLAND COURT CASE THE BOARD
DETERMINED THAT AN EMPLOYER IS NOT PERMITTED TO DISCHARGE EMPLOYEES
PURSUANT TO A CLOSED-SHOP CONTRACT, EVEN THOUGH THE CONTRACT IS VALID
UNDER THE PROVISO TO SEC. 8(3), WHEN, TO THE EMPLOYER'S KNOWLEDGE, THE
DISCHARGE IS REQUESTED BY THE UNION FOR THE PURPOSE OF ELIMINATING
EMPLOYEES WHO HAVE SOUGHT TO CHANGE BARGAINING REPRESENTATIVES AT A
PERIOD WHEN IT IS APPROPRIATE FOR THE EMPLOYEES TO SEEK A
REDETERMINATION OF REPRESENTATIVES.  THE REASON FOR THIS HOLDING BY THE
BOARD WILL BE PRESENTLY DISCUSSED.  THE DOCTRINE AS APPLIED TO THE
FACTS IN THIS CASE IS STATED IN THE BOARD'S BRIEF AS FOLLOWS: 

"THE BOARD FOUND THE CLOSED-SHOP AGREEMENT TO HAVE BEEN VALIDLY
ENTERED INTO IN CONFORMITY WITH THE PROVISO TO SECTION 8(3) OF THE
ACT.  THE BOARD CONCLUDED, HOWEVER, THAT, BY VIRTUE OF THE INDEFINITE
TERM OF THE CONTRACT, WHICH HAD RUN FOR MORE THAN FOUR YEARS, THE
EMPLOYEES UNDERTOOK TO OUST THE C.I.O. AS THEIR BARGAINING
REPRESENTATIVE AT A PERIOD DURING WHICH IT WAS APPROPRIATE TO SEEK A
REDETERMINATION OF REPRESENTATIVES." 

THE BOARD CONTENDS THAT THEREFORE THE CONTRACT NO LONGER PROTECTED
PETITIONER. 

WE TAKE IT FROM THIS CONCLUSION OF THE BOARD THAT THERE IS NO DISPUTE
AS TO THE VALIDITY OF THE CLOSED-SHOP CONTRACT AS FAR AS THE ACT IS
CONCERNED.  IN ALGOMA P. & V. CO. V. WISCONSIN EMPL.  REL.  BD., 336
U.S. 301, IT WAS HELD THAT NOTHING IN THE ACT PRECLUDES A STATE FROM
PROHIBITING CLOSED-SHOP CONTRACTS IN WHOLE OR IN PART.  WE THEREFORE
ALSO LOOK TO THE LAW OF THE STATE WHERE THE CLOSED-SHOP CONTRACT WAS
MADE, HERE CALIFORNIA, TO DETERMINE ITS VALIDITY.  WE THINK IT IS
CLEAR, AND DO NOT UNDERSTAND THE BOARD TO CONTEND OTHERWISE, THAT THE
CLOSED-SHOP CONTRACT WAS VALID UNDER CALIFORNIA LAW.  SHAFER V.
REGISTERED PHARMACISTS UNION LOCAL 1172, 16 CAL.2D 379, 106 P.2D 403;
PARK & TILFORD IMPORT CORP. V. INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
ETC., LOCAL 848, 27 CAL.2D 599, 165 P.2D 891; JAMES V. MARINSHIP CORP.,
25 CAL.2D 721, 155 P.2D 329.  IN THE MARINSHIP CASE, SUPRA, AT 736, THE
CALIFORNIA SUPREME COURT EXPLICITLY RECOGNIZED THAT A UNION MAY EXPEL
PERSONS WHO "HAVE INTERESTS INIMICAL TO THE UNION" BECAUSE OF "THE
RIGHT OF THE UNION TO REJECT OR EXPEL PERSONS WHO REFUSE TO ABIDE BY
ANY REASONABLE REGULATION OR LAWFUL POLICY ADOPTED BY THE UNION."  SEE
ALSO DAVIS V. INT. ALLIANCE OF STAGE EMPLOYEES, 60 CAL. APP.2D 713,
715, 141 P.2D 486, 487-488, WHERE IT IS STATED THAT UNDER CALIFORNIA
LAW, "AN ORGANIZATION HAS THE NATURAL RIGHT OF SELF PRESERVATION, AND
MAY WITH PROPRIETY EXPEL MEMBERS WHO SHOW THEIR DISLOYALTY BY JOINING A
RIVAL ORGANIZATION."  THE CONTRACT WAS VALID UNDER THE ACT AND UNDER
STATE LAW. 

THE CLAIMED IMPOTENCY OF THE CONTRACT AS A DEFENSE HERE RESTS NOT
UPON ANY PROVISION OF THE ACT OF CONGRESS OR OF STATE LAW OR THE TERMS
OF THE CONTRACT, BUT UPON A POLICY DECLARED BY THE BOARD.  THAT POLICY
HAS FOR ITS AVOWED PURPOSE THE SOLUTION OF WHAT THE BOARD CONCEIVES TO
BE AN ANOMALOUS SITUATION, IN THAT SEC. 7 GUARANTEES EMPLOYEES THE
RIGHT TO SELECT FREELY THEIR REPRESENTATIVE FOR COLLECTIVE BARGAINING,
WHILE THE PROVISO TO SEC. 8(3) PERMITS A CLOSED-SHOP CONTRACT WITH
INHERENT POSSIBILITIES FOR INVASION OF THE RIGHT GUARANTEED BY SEC. 7. 
THE SOLUTION ARRIVED AT IN THE RUTLAND COURT CASE, AND URGED HERE, IS
THAT THE BOARD MAY NOT GIVE FULL EFFECT TO THE PROVISO OF SEC. 8(3)
BECAUSE TO DO SO WOULD PERMIT CIRCUMVENTION OF SEC. 7.  WE TURN TO THIS
CONTENTION. 

ONE OF THE OLDEST TECHNIQUES IN THE ART OF COLLECTIVE BARGAINING IS
THE CLOSED SHOP.  FN13  IT PROTECTS THE INTEGRITY OF THE UNION AND
PROVIDES STABILITY TO LABOR RELATIONS.  TO ACHIEVE STABILITY OF LABOR
RELATIONS WAS THE PRIMARY OBJECTIVE OF CONGRESS IN ENACTING THE
NATIONAL LABOR RELATIONS ACT.  FN14  CONGRESS KNEW THAT A CLOSED SHOP
WOULD INTERFERE WITH FREEDOM OF EMPLOYEES TO ORGANIZE IN ANOTHER UNION
AND WOULD, IF USED, LEAD INEVITABLY TO DISCRIMINATION IN TENURE OF
EMPLOYMENT.  FN15  NEVERTHELESS, WITH FULL REALIZATION THAT THERE WAS A
LIMITATION BY THE PROVISO OF SEC. 8(3) UPON THE FREEDOM OF SEC. 7,
CONGRESS INSERTED THE PROVISO OF SEC. 8(3).  IT IS NOT NECESSARY FOR US
TO JUSTIFY THE POLICY OF CONGRESS.  IT IS ENOUGH THAT WE FIND IT IN THE
STATUTE.  THAT POLICY CANNOT BE DEFEATED BY THE BOARD'S POLICY, WHICH
WOULD MAKE AN UNFAIR LABOR PRACTICE OUT OF THAT WHICH IS AUTHORIZED BY
THE ACT.  THE BOARD CANNOT IGNORE THE PLAIN PROVISIONS OF A VALID
CONTRACT MADE IN ACCORDANCE WITH THE LETTER AND THE SPIRIT OF THE
STATUTE AND REFORM IT TO CONFORM TO THE BOARD'S IDEA OF CORRECT
POLICY.  TO SUSTAIN THE BOARD'S CONTENTION WOULD BE TO PERMIT THE BOARD
UNDER THE GUISE OF ADMINISTRATION TO PUT LIMITATIONS IN THE STATUTE NOT
PLACED THERE BY CONGRESS.  IN REALITY WHATEVER INTERFERENCE OR
DISCRIMINATION WAS PRESENT HERE CAME NOT FROM THE EMPLOYER, BUT FROM
FELLOW-EMPLOYEES OF THE DISCHARGEES.  SHORN OF EMBELLISHMENT, THE
BOARD'S POLICY MAKES INTERFERENCE AND DISCRIMINATION BY FELLOW
EMPLOYEES AN UNFAIR LABOR PRACTICE OF THE EMPLOYER.  YET THE
LEGISLATIVE HISTORY CONCLUSIVELY SHOWS THAT CONGRESS, BY REJECTING THE
PROPOSED TYDINGS AMENDMENT TO THE ACT, REFUSED TO WORD SEC. 7 SO AS TO
HAMPER COERCION OF EMPLOYEES BY FELLOW-EMPLOYEES.  FN16  THE
EMASCULATION OF THE CONTRACT PRESSED FOR BY THE BOARD IN ORDER TO
ACHIEVE THAT WHICH CONGRESS REFUSED TO ENACT INTO LAW CANNOT BE
SUSTAINED. 

IT MUST BE REMEMBERED THAT THIS IS A CONTEST PRIMARILY BETWEEN LABOR
UNIONS FOR CONTROL.  IT IS QUITE REASONABLE TO SUPPOSE THAT CONGRESS
THOUGHT IT CONDUCIVE TO STABILITY OF LABOR RELATIONS THAT PARTIES BE
REQUIRED TO LIVE UP TO A VALID CLOSED-SHOP CONTRACT MADE VOLUNTARILY
WITH THE RECOGNIZED BARGAINING REPRESENTATIVE, REGARDLESS OF INTERNAL
DISRUPTIONS GROWING OUT OF AGITATION FOR A CHANGE IN BARGAINING
REPRESENTATIVE.  IN THE INSTANT CASE THE EMPLOYEES EXERCISED THEIR
RIGHT TO CHOOSE THEIR BARGAINING REPRESENTATIVE.  THE REPRESENTATIVE
BOUND THEM TO A VALID CONTRACT.  THE CONTRACT WAS LIVED UNDER FOR FOUR
YEARS AND WAS SUBSISTING AT THE PERIOD OF TIME IN QUESTION.  IT WAS
MADE AND CARRIED OUT IN GOOD FAITH BY PETITIONER, WHO CANNOT BE HELD
GUILTY OF AN UNFAIR LABOR PRACTICE BY ADMINISTRATIVE AMENDMENT OF THE
STATUTE.  WE REJECT THE APPLICATION OF THE SO-CALLED RUTLAND COURT
DOCTRINE. 

NOTHING THAT THIS COURT SAID IN WALLACE CORP. V. LABOR BOARD, 323
U.S. 248, SUPPORTS THE BOARD'S POSITION HERE.  IN THAT CASE THIS COURT
SAID:    "IT WAS AS MUCH A DEPRIVATION OF THE RIGHTS OF THESE MINORITY
EMPLOYEES FOR THE COMPANY DISCRIMINATORILY TO DISCHARGE THEM IN
COLLABORATION WITH INDEPENDENT AS IT WOULD HAVE BEEN HAD THE COMPANY
DONE IT ALONE.  TO PERMIT IT TO DO SO BY INDIRECTION, THROUGH THE
MEDIUM OF A 'UNION' OF ITS OWN CREATION, WOULD BE TO SANCTION A READILY
CONTRIVED MECHANISM FOR EVASION OF THE ACT."  323 U.S. AT 256. 

THERE THE INDEPENDENT UNION WAS FOUND TO BE A COMPANY-SUPPORTED
UNION, AND THE EMPLOYER WAS FOUND GUILTY OF AN UNFAIR LABOR PRACTICE
FOR SUPPORTING IT.  WHILE THE PROVISO TO SEC. 8(3) PERMITS A CLOSED
SHOP CONTRACT, IT DOES NOT PERMIT ONE MADE WITH A UNION "ESTABLISHED,
MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN THIS ACT AS AN UNFAIR
LABOR PRACTICE."  SO THE COURT CONCLUDED IN THE WALLACE CORP. CASE
THAT:  "THE BOARD THEREFORE IS REVERSED. 

FN1  49 STAT. 449 ET SEQ., 29 U.S.C. SEC. 151 ET SEQ. 

FN2  MATTER OF COLGATE-PALMOLIVE-PEET COMPANY, 70 N.L.R.B. 1202. 

FN3  171 F.2D 956. 

FN4  337 U.S. 913. 

FN5  MATTER OF RUTLAND COURT OWNERS, INC., 44 N.L.R.B. 587, 46
N.L.R.B. 1040. 

FN6  LABOR BOARD V. GERALDINE NOVELTY CO., 173 F.2D 14; COLONIE FIBRE
CO. V. LABOR BOARD, 163 F.2D 65; LABOR BOARD V. AMERICAN WHITE CROSS
LABORATORIES, 160 F.2D 75. 

FN7  LABOR BOARD V. PUBLIC SERVICE TRANSPORT CO., 177 F.2D 119. 

FN8  LABOR BOARD V. COLGATE-PALMOLIVE-PEET CO., 171 F.2D 956; LOCAL
2880 V. LABOR BOARD, 158 F.2D 365, CERTIORARI GRANTED, 331 U.S. 798,
CERTIORARI DISMISSED ON MOTION OF PETITIONER, 332 U.S. 845. 

FN9  ALUMINUM CO. V. LABOR BOARD, 159 F.2D 523; LEWIS MEIER & CO. V.
LABOR BOARD, 21 L.R.R.M. 2093(NOV.  1947). 

FN10  "SEC.  8.  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER
- 

     .         .      .         .         . 

"(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, THAT NOTHING IN THIS
ACT,  ...  OR IN ANY CODE OR AGREEMENT APPROVED OR PRESCRIBED
THEREUNDER, OR IN ANY OTHER STATUTE OF THE UNITED STATES, SHALL
PRECLUDE AN EMPLOYER FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION
(NOT ESTABLISHED, MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN THIS
ACT AS AN UNFAIR LABOR PRACTICE) TO REQUIRE AS A CONDITION OF
EMPLOYMENT MEMBERSHIP THEREIN, IF SUCH LABOR ORGANIZATION IS THE
REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED IN SECTION 9(A), IN THE
APPROPRIATE COLLECTIVE BARGAINING UNIT COVERED BY SUCH AGREEMENT WHEN
MADE."  49 STAT. 452, 29 U.S.C. SEC. 158(3). 

FN11  THIS ELECTION WAS THEREAFTER SET ASIDE BY THE BOARD, UPON
OBJECTIONS FILED BY THE A.F. OF L., ON THE GROUND THAT THE EMPLOYER'S
DISCHARGE OF EMPLOYEES AT THE REQUEST OF THE C.I.O. PREVENTED THE
RESULT OF THE ELECTION FROM BEING TRULY REPRESENTATIVE OF THE
EMPLOYEES' WISHES. 

FN12  SUPRA, N. 10. 

FN13  SEE PETERSON, AMERICAN LABOR UNIONS, P. 1(1945).  REV. JEROME
L. TONER IN THE CLOSED SHOP IN THE AMERICAN LABOR MOVEMENT, PUBLISHED
UNDER AUSPICES OF THE CATHOLIC UNIVERSITY OF AMERICA, STUDIES IN
ECONOMICS, VOL. 5, 1941, TRACES THE PRINCIPLE OF THE CLOSED SHOP TO THE
ENGLISH GUILD SYSTEM, THE FORERUNNER OF THE AMERICAN UNION MOVEMENT, P.
16 ET SEQ. IN AMERICA THE DESIRE OF WORKERS FOR CLOSED-SHOP CONDITIONS
ANTEDATES THE AMERICAN REVOLUTION AND EVEN UNIONISM.  ID. AT 22, 58 ET
SEQ. 

FN14  49 STAT. 449, 29 U.S.C. SEC. 151; S. REP. NO. 573, 74TH CONG.,
1ST SESS. 1(1935); H.R. REP. NOS. 969, 972, 74TH CONG., 1ST SESS.
6(1935); H.R. REP. NO. 1147, 74TH CONG., 1ST SESS. 8(1935). 

FN15  SEE STATEMENT OF SENATOR WAGNER:  HEARINGS BEFORE SENATE
COMMITTEE ON EDUCATION AND LABOR ON S. 195, 74TH CONG., 1ST SESS.
47(1935); STATEMENT OF MR. MILLIS, ID. AT 179-180; AND THE SENATE AND
HOUSE REPORTS ACCOMPANYING THE BILL:  S. REP. NO. 573, 74TH CONG., 1ST
SESS. 16(1935); H.R. REP. NO. 1147, 74TH CONG., 1ST SESS. 15-17(1935). 

FN16  DURING CONSIDERATION OF THE BILL ON THE SENATE FLOOR, SENATOR
TYDINGS PROPOSED TO AMEND IT BY ADDING TO SEC. 7 THE WORDS, "FREE FROM
COERCION OR INTIMIDATION FROM ANY SOURCE."  IN THE DEBATE WHICH
FOLLOWED IT BECAME CLEAR THAT THE AMENDMENT WOULD DEAL WITH EMPLOYEE
AGAINST-EMPLOYEE RELATIONS, WHILE THE BILL WAS DESIGNED TO DEAL ONLY
WITH EMPLOYEE-EMPLOYER RELATIONS, AND THE AMENDMENT WAS DEFEATED.  SEE
79 CONG. REC. 7653-7658, 7675. 

MR. JUSTICE REED AND MR. JUSTICE BURTON DISSENT.  IN THEIR OPINION
THE ADJUSTMENT BETWEEN SEC. 7 AND SEC. 8(3) MADE BY THE NATIONAL LABOR
RELATIONS BOARD IS PERMISSIBLE.  THE USE OF THE CLOSED-SHOP PRIVILEGE
TO INTERFERE WITH THE FREE EXERCISE OF THE LABORERS' CHOICE DOES NOT
SEEM TO THEM TO BE WITHIN THE PURPOSE OF THE LABOR ACT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










BROWN V. WESTERN R. OF ALABAMA, 338 U.S. 294 


NO. 43.  ARGUED OCTOBER 19, 1949.  - DECIDED NOVEMBER 21, 1949.  - 77
GA. APP. 780, 49 S.E.2D 833, REVERSED. 


IN AN ACTION IN A STATE COURT FOR DAMAGES UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, THE TRIAL COURT SUSTAINED A GENERAL DEMURRER TO THE
COMPLAINT AND DISMISSED THE ACTION.  UNDER THE STATE LAW, SUCH A
DISMISSAL WAS A FINAL ADJUDICATION BARRING RECOVERY IN ANY FUTURE STATE
PROCEEDING.  THE STATE COURT OF APPEALS AFFIRMED ON THE BASIS OF A
STATE RULE OF PRACTICE TO CONSTRUE PLEADINGS "MOST STRONGLY AGAINST THE
PLEADER."  HELD: 

1. THE CONSTRUCTION OF THE COMPLAINT BY THE STATE COURT IN ACCORDANCE
WITH STATE PRACTICE IS NOT BINDING ON THIS COURT, WHICH WILL ITSELF
CONSTRUE THE ALLEGATIONS OF THE COMPLAINT IN ORDER TO DETERMINE WHETHER
PETITIONER HAS BEEN DENIED A RIGHT OF TRIAL GRANTED HIM BY CONGRESS. 
PP. 295-296. 

2.  THE COMPLAINT DID SET FORTH A CAUSE OF ACTION AND SHOULD NOT HAVE
BEEN DISMISSED.  PP. 297-299. 

BROWN V. WESTERN RAILWAY OF ALABAMA. 

CERTIORARI TO THE COURT OF APPEALS OF GEORGIA. 

A STATE COURT SUSTAINED A GENERAL DEMURRER TO A COMPLAINT CLAIMING
DAMAGES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT AND DISMISSED THE
ACTION.  THE COURT OF APPEALS OF GEORGIA AFFIRMED.  77 GA. APP. 780, 49
S.E.2D 833.  THE SUPREME COURT OF GEORGIA DENIED CERTIORARI.  THIS
COURT GRANTED CERTIORARI.  336 U.S. 965.  REVERSED AND REMANDED, P.
299. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS ACTION IN A GEORGIA STATE COURT CLAIMING
DAMAGES FROM THE RESPONDENT RAILROAD UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT.  45 U.S.C. SEC. 51 ET SEQ. RESPONDENT FILED A GENERAL
DEMURRER TO THE COMPLAINT ON THE GROUND THAT IT FAILED TO "SET FORTH A
CAUSE OF ACTION AND IS OTHERWISE INSUFFICIENT IN LAW."  THE TRIAL COURT
SUSTAINED THE DEMURRER AND DISMISSED THE CAUSE OF ACTION.  THE COURT OF
APPEALS AFFIRMED, 77 GA. APP. 780, 49 S.E.2D 833, AND THE SUPREME COURT
OF GEORGIA DENIED CERTIORARI.  IT IS AGREED THAT UNDER GEORGIA LAW THE
DISMISSAL IS A FINAL ADJUDICATION BARRING RECOVERY IN ANY FUTURE STATE
PROCEEDING.  THE PETITION FOR CERTIORARI HERE PRESENTED THE QUESTION OF
WHETHER THE COMPLAINT DID SET FORTH A CAUSE OF ACTION SUFFICIENT TO
SURVIVE A GENERAL DEMURRER RESULTING IN FINAL DISMISSAL.  CERTIORARI
WAS GRANTED BECAUSE THE IMPLICATIONS OF THE DISMISSAL WERE CONSIDERED
IMPORTANT TO A CORRECT AND UNIFORM APPLICATION OF THE FEDERAL ACT IN
THE STATE AND FEDERAL COURTS.  SEE BRADY V. SOUTHERN R. CO., 320 U.S.
476. 

FIRST.  THE GEORGIA COURT OF APPEALS HELD THAT "STRIPPED OF ITS
DETAILS, THE PETITION SHOWS THAT THE PLAINTIFF WAS INJURED WHILE IN THE
PERFORMANCE OF HIS DUTIES WHEN HE STEPPED ON A LARGE CLINKER LYING
ALONGSIDE THE TRACK IN THE RAILROAD YARDS.  ...  THE MERE PRESENCE OF A
LARGE CLINKER IN A RAILROAD YARD CAN NOT BE SAID TO CONSTITUTE AN ACT
OF NEGLIGENCE.  ...  IN SO FAR AS THE ALLEGATIONS OF THE PETITION SHOW,
THE SOLE CAUSE OF THE ACCIDENT WAS THE ACT OF THE PLAINTIFF IN STEPPING
ON THIS LARGE CLINKER, WHICH HE WAS ABLE TO SEE AND COULD HAVE
AVOIDED."  77 GA. APP. 783, 49 S.E.2D 835.  THE COURT REACHED THE
FOREGOING CONCLUSIONS BY FOLLOWING A GEORGIA RULE OF PRACTICE TO
CONSTRUE PLEADING ALLEGATIONS "MOST STRONGLY AGAINST THE PLEADER." 
FOLLOWING THIS LOCAL RULE OF CONSTRUCTION THE COURT SAID THAT "IN THE
ABSENCE OF ALLEGATIONS TO THE CONTRARY, THE INFERENCE ARISES THAT THE
PLAINTIFF'S VISION WAS UNOBSCURED AND THAT HE COULD HAVE SEEN AND
AVOIDED THE CLINKER."  77 GA. APP. 783, 49 S.E.2D 835.  UNDER THE SAME
LOCAL RULE THE COURT FOUND NO PRECISE ALLEGATION THAT THE PARTICULAR
CLINKER ON WHICH PETITIONER STUMBLED WAS BESIDE THE TRACKS DUE TO
RESPONDENT'S NEGLIGENCE. 

IT IS CONTENDED THAT THIS CONSTRUCTION OF THE COMPLAINT IS BINDING ON
US.  THE ARGUMENT IS THAT WHILE STATE COURTS ARE WITHOUT POWER TO
DETRACT FROM "SUBSTANTIVE RIGHTS" GRANTED BY CONGRESS IN FELA CASES,
THEY ARE FREE TO FOLLOW THEIR OWN RULES OF "PRACTICE" AND "PROCEDURE." 
TO WHAT EXTENT RULES OF PRACTICE AND PROCEDURE MAY THEMSELVES DIG INTO
"SUBSTANTIVE RIGHTS" IS A TROUBLESOME QUESTION AT BEST AS IS SHOWN IN
THE VERY CASE ON WHICH RESPONDENT RELIES.  CENTRAL VERMONT R. CO. V.
WHITE, 238 U.S. 507.  OTHER CASES IN THIS COURT  FN1  POINT UP THE
IMPOSSIBILITY OF LAYING DOWN A PRECISE RULE TO DISTINGUISH "SUBSTANCE"
FROM "PROCEDURE."  FORTUNATELY, WE NEED NOT ATTEMPT TO DO SO.  A LONG
SERIES OF CASES PREVIOUSLY DECIDED, FROM WHICH WE SEE NO REASON TO
DEPART, MAKES IT OUR DUTY TO CONSTRUE THE ALLEGATIONS OF THIS COMPLAINT
OURSELVES IN ORDER TO DETERMINE WHETHER PETITIONER HAS BEEN DENIED A
RIGHT OF TRIAL GRANTED HIM BY CONGRESS.  THIS FEDERAL RIGHT CANNOT BE
DEFEATED BY THE FORMS OF LOCAL PRACTICE.  SEE AMERICAN RY. EXP.  CO. V.
LEVEE, 263 U.S. 19, 21.  AND WE CANNOT ACCEPT AS FINAL A STATE COURT'S
INTERPRETATION OF ALLEGATIONS IN A COMPLAINT ASSERTING IT.  FIRST
NATIONAL BANK V. ANDERSON, 269 U.S. 341, 346; DAVIS V. WECHSLER, 263
U.S. 22, 24; COVINGTON TURNPIKE CO. V. SANDFORD, 164 U.S. 578, 595
596.  THIS RULE APPLIES TO FELA CASES NO LESS THAN TO OTHER TYPES. 
REYNOLDS V. ATLANTIC C.L.R. CO., 336 U.S. 207; ANDERSON V. A., T. &
S.F.R. CO., 333 U.S. 821; CF. LILLIE V. THOMPSON, 332 U.S. 459. 

SECOND.  WE HOLD THAT THE ALLEGATIONS OF THE COMPLAINT DO SET FORTH A
CAUSE OF ACTION WHICH SHOULD NOT HAVE BEEN DISMISSED.  IT CHARGED THAT
RESPONDENT HAD ALLOWED "CLINKERS" AND OTHER DEBRIS "TO COLLECT IN SAID
YARDS ALONG THE SIDE OF THE TRACKS"; THAT SUCH DEBRIS MADE THE "YARDS
UNSAFE"; THAT RESPONDENT THUS FAILED TO SUPPLY HIM A REASONABLY SAFE
PLACE TO WORK, BUT DIRECTED HIM TO WORK IN SAID YARDS "UNDER THE
CONDITIONS ABOVE DESCRIBED"; THAT IT WAS NECESSARY FOR PETITIONER "TO
CROSS OVER ALL SUCH MATERIAL AND DEBRIS"; THAT IN PERFORMING HIS DUTIES
HE "RAN AROUND" AN ENGINE AND "STEPPED ON A LARGE CLINKER LYING BESIDE
THE TRACKS AS AFORESAID WHICH CAUSED PETITIONER TO FALL AND BE
INJURED"; THAT PETITIONER'S INJURIES WERE "DIRECTLY AND PROXIMATELY
CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE DEFENDANT  ...  (A)
IN FAILING TO FURNISH PLAINTIFF WITH A REASONABLY SAFE PLACE IN WHICH
TO WORK AS HEREIN ALLEGED.  (B) IN LEAVING CLINKERS ...  AND OTHER
DEBRIS ALONG THE SIDE OF TRACK IN ITS YARDS AS AFORESAID, WELL KNOWING
THAT SAID YARDS IN SUCH CONDITION WERE DANGEROUS FOR USE BY BRAKEMEN,
WORKING THEREIN AND THAT PETITIONER WOULD HAVE TO PERFORM HIS DUTIES
WITH SAID YARDS IN SUCH CONDITION." 

OTHER ALLEGATIONS NEED NOT BE SET OUT SINCE THE FOREGOING IF PROVEN
WOULD SHOW AN INJURY OF THE PRECISE KIND FOR WHICH CONGRESS HAS
PROVIDED A RECOVERY.  THESE ALLEGATIONS, FAIRLY CONSTRUED, ARE MUCH
MORE THAN A CHARGE THAT PETITIONER "STEPPED ON A LARGE CLINKER LYING
ALONGSIDE THE TRACK IN THE RAILROAD YARDS."  THEY ALSO CHARGE THAT THE
RAILROAD PERMITTED CLINKERS AND OTHER DEBRIS TO BE LEFT ALONG THE
TRACKS, "WELL KNOWING" THAT THIS WAS DANGEROUS TO WORKERS; THAT
PETITIONER WAS COMPELLED TO "CROSS OVER" THE CLINKERS AND DEBRIS; THAT
IN DOING SO HE FELL AND WAS INJURED; AND THAT ALL OF THIS WAS IN
VIOLATION OF THE RAILROAD'S DUTY TO FURNISH PETITIONER A REASONABLY
SAFE PLACE TO WORK.  CERTAINLY THESE ALLEGATIONS ARE SUFFICIENT TO
PERMIT INTRODUCTION OF EVIDENCE FROM WHICH A JURY MIGHT INFER THAT
PETITIONER'S INJURIES WERE DUE TO THE RAILROAD'S NEGLIGENCE IN FAILING
TO SUPPLY A REASONABLY SAFE PLACE TO WORK.  BAILEY V. CENTRAL VERMONT
R. CO., 319 U.S. 350, 353.  AND WE HAVE ALREADY REFUSED TO SET ASIDE A
JUDGMENT COMING FROM THE GEORGIA COURTS WHERE THE JURY WAS PERMITTED TO
INFER NEGLIGENCE FROM THE PRESENCE OF CLINKERS ALONG THE TRACKS IN THE
RAILROAD YARD.  SOUTHERN R. CO. V. PUCKETT, 244 U.S. 571, 574,
AFFIRMING 16 GA. APP. 551, 554, 85 S.E. 809, 811. 

HERE THE GEORGIA COURT HAS DECIDED AS A MATTER OF LAW THAT NO
INFERENCE OF RAILROAD NEGLIGENCE COULD BE DRAWN FROM THE FACTS ALLEGED
IN THIS CASE.  RATHER THE COURT ITSELF HAS DRAWN FROM THE PLEADINGS THE
REVERSE INFERENCE THAT THE SOLE PROXIMATE CAUSE OF PETITIONER'S INJURY
WAS HIS OWN NEGLIGENCE.  THROUGHOUT ITS OPINION THE APPELLATE COURT
CLEARLY REVEALS A PREOCCUPATION WITH WHAT IT DEEMED TO BE PETITIONER'S
FAILURE TO TAKE PROPER PRECAUTIONS N2.  BUT AS THAT COURT NECESSARILY
ADMITS, CONTRIBUTORY NEGLIGENCE DOES NOT PRECLUDE RECOVERY UNDER THE
FELA. 

STRICT LOCAL RULES OF PLEADING CANNOT BE USED TO IMPOSE UNNECESSARY
BURDENS UPON RIGHTS OF RECOVERY AUTHORIZED BY FEDERAL LAWS.  "WHATEVER
SPRINGES THE STATE MAY SET FOR THOSE WHO ARE ENDEAVORING TO ASSERT
RIGHTS THAT THE STATE CONFERS, THE ASSERTION OF FEDERAL RIGHTS, WHEN
PLAINLY AND REASONABLY MADE, IS NOT TO BE DEFEATED UNDER THE NAME OF
LOCAL PRACTICE."  DAVIS V. WECHSLER, SUPRA, AT 24.  CF. MATY V.
GRASSELLI CHEMICAL CO., 303 U.S. 197.  SHOULD THIS COURT FAIL TO
PROTECT FEDERALLY CREATED RIGHTS FROM DISMISSAL BECAUSE OF OVER
EXACTING LOCAL REQUIREMENTS FOR METICULOUS PLEADINGS, DESIRABLE
UNIFORMITY IN ADJUDICATION OF FEDERALLY CREATED RIGHTS COULD NOT BE
ACHIEVED.  SEE BRADY V. SOUTHERN R. CO., 320 U.S. 476, 479. 

UPON TRIAL OF THIS CASE THE EVIDENCE OFFERED MAY OR MAY NOT SUPPORT
INFERENCES OF NEGLIGENCE.  WE SIMPLY HOLD THAT UNDER THE FACTS ALLEGED
IT WAS ERROR TO DISMISS THE COMPLAINT AND THAT PETITIONER SHOULD BE
ALLOWED TO TRY HIS CASE.  COVINGTON TURNPIKE CO. V. SANDFORD, SUPRA, AT
596; ANDERSON V. A., T. & S.F.R. CO., 333 U.S. 821. 

THE CAUSE IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  ANGEL V. BULLINGTON, 330 U.S. 183; GUARANTY TRUST CO. V. YORK,
326 U.S. 99; GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239; ST. LOUIS,
S.F. & T.R. CO. V. SEALE, 229 U.S. 156, 157; AND SEE SAME CASE 148 S.W.
1099; TOLEDO, ST. L. & W.R. CO. V. SLAVIN, 236 U.S. 454, 457-458; AND
SEE SAME CASE 88 OHIO ST. 536, 106 N.E. 1077.  COMPARE BRINKMEIER V.
MISSOURI P.R. CO., 224 U.S. 268, WITH SEABOARD AIR LINE R. CO. V. RENN,
241 U.S. 290. 

FN2  THAT COURT AMONG OTHER THINGS SAID:  "IN THE ABSENCE OF
ALLEGATIONS TO THE CONTRARY, THE INFERENCE ARISES THAT THE PLAINTIFF'S
VISION WAS UNOBSCURED AND THAT HE COULD HAVE SEEN AND AVOIDED THE
CLINKER.  ...  IN SO FAR AS THE ALLEGATIONS OF THE PETITION SHOW, THE
SOLE CAUSE OF THE ACCIDENT WAS THE ACT OF THE PLAINTIFF IN STEPPING ON
THIS LARGE CLINKER, WHICH HE WAS ABLE TO SEE AND COULD HAVE AVOIDED. 
IT WAS HE WHO, WITHOUT ANY OUTSIDE INTERVENTION, FAILED TO LOOK,
STEPPED ON THE CLINKER, AND FELL."  77 GA. APP. 783, 49 S.E.2D 835. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, DISSENTING. 

INSIGNIFICANT AS THIS CASE APPEARS ON THE SURFACE, ITS DISPOSITION
DEPENDS ON THE ADJUSTMENT MADE BETWEEN TWO JUDICIAL SYSTEMS CHARGED
WITH THE ENFORCEMENT OF A LAW BINDING ON BOTH.  THIS, IT BEARS
RECALLING, IS AN IMPORTANT FACTOR IN THE WORKING OF OUR FEDERALISM
WITHOUT NEEDLESS FRICTION. 

HAVE THE GEORGIA COURTS DISRESPECTED THE LAW OF THE LAND IN THE
JUDGMENT UNDER REVIEW?  SINCE CONGRESS EMPOWERS STATE COURTS TO
ENTERTAIN SUITS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, A STATE
CANNOT WILFULLY SHUT ITS COURTS TO SUCH CASES.  SECOND EMPLOYERS'
LIABILITY CASES, 223 U.S. 1.  BUT THE COURTS SO EMPOWERED ARE CREATURES
OF THE STATES, WITH SUCH STRUCTURES AND FUNCTIONS AS THE STATES ARE
FREE TO DEVISE AND DEFINE.  CONGRESS HAS NOT IMPOSED JURISDICTION ON
STATE COURTS FOR CLAIMS UNDER THE ACT "AS AGAINST AN OTHERWISE VALID
EXCUSE."  DOUGLAS V. NEW YORK, NEW HAVEN & H.R. CO., 27.  U.S. 377,
388.  AGAIN, IF A STATE HAS DISPENSED WITH THE JURY IN CIVIL SUITS OR
HAS MODIFIED THE COMMON-LAW REQUIREMENTS FOR TRIAL BY JURY, A PLAINTIFF
MUST TAKE THE JURY SYSTEM AS HE FINDS IT IF HE CHOOSES TO BRING HIS
SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IN A COURT OF THAT
STATE.  MINNEAPOLIS & ST. L.R. CO. V. BOMBOLIS, 241 U.S. 211.  AFTER
ALL, THE FEDERAL COURTS ARE ALWAYS AVAILABLE. 

SO ALSO, STATES HAVE VARYING SYSTEMS OF PLEADING AND PRACTICE.  ONE
STATE MAY CHERISH FORMALITIES MORE THAN ANOTHER, ONE STATE MAY BE MORE
RESPONSIVE THAN ANOTHER TO PROCEDURAL REFORMS.  IF A LITIGANT CHOOSES
TO ENFORCE A FEDERAL RIGHT IN A STATE COURT, HE CANNOT BE HEARD TO
OBJECT IF HE IS TREATED EXACTLY AS ARE PLAINTIFFS WHO PRESS LIKE CLAIMS
ARISING UNDER STATE LAW WITH REGARD TO THE FORM IN WHICH THE CLAIM MUST
BE STATED - THE PARTICULARITY, FOR INSTANCE, WITH WHICH A CAUSE OF
ACTION MUST BE DESCRIBED.  FEDERAL LAW, THOUGH INVOKED IN A STATE
COURT, DELIMITS THE FEDERAL CLAIM - DEFINES WHAT GIVES A RIGHT TO
RECOVERY AND WHAT GOES TO PROVE IT.  BUT THE FORM IN WHICH THE CLAIM
MUST BE STATED NEED NOT BE DIFFERENT FROM WHAT THE STATE EXACTS IN THE
ENFORCEMENT OF LIKE OBLIGATIONS CREATED BY IT, SO LONG AS SUCH A
REQUIREMENT DOES NOT ADD TO, OR DIMINISH, THE RIGHT AS DEFINED BY
FEDERAL LAW, NOR BURDEN THE REALIZATION OF THIS RIGHT IN THE
ACTUALITIES OF LITIGATION. 

OF COURSE "THIS COURT IS NOT CONCLUDED" BY THE VIEW OF A STATE COURT
REGARDING THE SUFFICIENCY OF ALLEGATIONS OF A FEDERAL RIGHT OF ACTION
OR DEFENSE.  THIS MERELY MEANS THAT A STATE COURT CANNOT DEFEAT THE
SUBSTANCE OF A FEDERAL CLAIM BY DENIAL OF IT.  NOR CAN A STATE DO SO
UNDER THE GUISE OF PROFESSING MERELY TO PRESCRIBE HOW THE CLAIM SHOULD
BE FORMULATED.  AMERICAN R. EXPRESS CO. V. LEVEE, 263 U.S. 19, 21. 

THE CRUCIAL QUESTION FOR THIS COURT IS WHETHER THE GEORGIA COURTS
HAVE MERELY ENFORCED A LOCAL REQUIREMENT OF PLEADING, HOWEVER FINICKY,
APPLICABLE TO ALL SUCH LITIGATION IN GEORGIA WITHOUT QUALIFYING THE
BASIS OF RECOVERY UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT OR
WEIGHTING THE SCALES AGAINST THE PLAINTIFF.  COMPARE NORFOLK SOUTHERN
R. CO. V. FEREBEE, 238 U.S. 269, WITH CENTRAL VERMONT R. CO. V. WHITE,
238 U.S. 507.  GEORGIA MAY ADHERE TO ITS REQUIREMENTS OF PLEADING, BUT
IT MAY NOT PUT "UNREASONABLE OBSTACLES IN THE WAY" OF A PLAINTIFF WHO
SEEKS ITS COURTS TO OBTAIN WHAT THE FEDERAL ACT GIVES HIM.  DAVIS V.
WECHSLER, 263 U.S. 22, 25. 

THESE DECISIVE DIFFERENCES ARE USUALLY CONVEYED BY THE TERMS
"PROCEDURE" AND "SUBSTANCE."  THE TERMS ARE NOT MEANINGLESS EVEN THOUGH
THEY DO NOT HAVE FIXED UNDEVIATING MEANINGS.  THEY DERIVE CONTENT FROM
THE FUNCTIONS THEY SERVE HERE IN PRECISELY THE SAME WAY IN WHICH WE
HAVE APPLIED THEM IN REVERSE SITUATIONS - WHEN CONFRONTED WITH THE
PROBLEM WHETHER THE FEDERAL COURTS RESPECTED THE SUBSTANCE OF STATE
CREATED RIGHTS, AS REQUIRED BY THE RULE IN ERIE R. CO. V. TOMPKINS, 304
U.S. 64, OR IMPAIRED THEM BY PROFESSING MERELY TO ENFORCE THEM BY THE
MODE IN WHICH THE FEDERAL COURTS DO BUSINESS.  REVIEW ON THIS ASPECT OF
STATE COURT JUDGMENTS IN FEDERAL EMPLOYERS' LIABILITY CASES PRESENTS
ESSENTIALLY THE SAME KIND OF PROBLEM AS THAT WITH WHICH THIS COURT
DEALT IN GUARANTY TRUST CO. V. YORK, 326 U.S. 99, APPLIED AT THE LAST
TERM IN RAGAN V. MERCHANTS TRANSFER & WAREHOUSE CO., 337 U.S. 530, AND
COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., 337 U.S. 541, 555.  CONGRESS
HAS AUTHORIZED STATE COURTS TO ENFORCE FEDERAL RIGHTS, AND FEDERAL
COURTS STATE-CREATED RIGHTS.  NEITHER SYSTEM OF COURTS CAN IMPAIR THESE
RESPECTIVE RIGHTS, BUT BOTH MAY HAVE THEIR OWN REQUIREMENTS FOR STATING
CLAIMS (PLEADING) AND CONDUCTING LITIGATION (PRACTICE). 

IN THE LIGHT OF THESE CONTROLLING CONSIDERATIONS, I CANNOT FIND THAT
THE COURT OF APPEALS OF GEORGIA HAS EITHER SOUGHT TO EVADE THE LAW OF
THE UNITED STATES OR DID SO UNWITTINGLY.  THAT COURT SHOWED FULL
AWARENESS OF THE NATURE AND SCOPE OF THE RIGHTS AND OBLIGATIONS ARISING
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT AS LAID DOWN IN THIS COURT'S
DECISIONS.  FN1  IT FULLY RECOGNIZED THAT THE RIGHT UNDER THE ACT IS
FOUNDED ON NEGLIGENCE BY THE CARRIER IN WHOLE OR IN PART, THAT
"ASSUMPTION OF RISK" MUST RIGOROUSLY BE EXCLUDED, THAT CONTRIBUTORY
NEGLIGENCE DOES NOT DEFEAT THE ACTION BUT MERELY BEARS ON DAMAGES.  NOR
IS IT CLAIMED THAT BY THE USE OF PRESUMPTIONS OR OTHERWISE THE STATE
COURT PLACED ON THE PLAINTIFF A BURDEN OF PROOF EXCEEDING THAT OF THE
ACT.  ALL THAT THE GEORGIA COURT DID WAS CONSCIENTIOUSLY TO APPLY ITS
UNDERSTANDING OF WHAT IS NECESSARY TO SET FORTH A CLAIM OF NEGLIGENCE
ACCORDING TO THE LOCAL REQUIREMENT OF PARTICULARITY.  CONCRETELY IT
RULED THAT "THE MERE PRESENCE OF A LARGE CLINKER IN A RAILROAD YARD CAN
NOT BE SAID TO CONSTITUTE AN ACT OF NEGLIGENCE."  FOR ALL THAT APPEARS,
THE GEORGIA COURT SAID IN EFFECT, THE CLINKER HAD BEEN PLACED THERE
UNDER SUCH CIRCUMSTANCES THAT RESPONSIBILITY COULD NOT BE CHARGED
AGAINST THE DEFENDANT.  ON THIS AND OTHER ASSUMPTIONS NOT MET BY
PLAINTIFF'S COMPLAINT, THE COURT DID NOT FIND IN THE PHRASEOLOGY USED
IN THE COMPLAINT THAT THE DEFENDANT WAS CHARGEABLE WITH NEGLECT FOR THE
PRESENCE OF THE OFFENDING CLINKER IN A YARD OPERATED BY ITSELF AS WELL
AS ANOTHER CARRIER.  I WOULD NOT SO READ THE COMPLAINT.  BUT THIS DOES
NOT PRECLUDE THE GEORGIA COURT FROM TAKING A MORE CONSTRAINED VIEW.  BY
SO DOING IT HAS NOT CONTRACTED RIGHTS UNDER THE FEDERAL ACT NOR HOBBLED
THE PLAINTIFF IN GETTING A JUDGMENT TO WHICH HE MAY BE ENTITLED. 

IT IS NOT CREDIBLE THAT THE GEORGIA COURT WOULD BE FOUND WANTING HAD
IT STATED THAT UNDER GEORGIA RULES, AS A MATTER OF PLEADING, IT WAS
NECESSARY TO STATE IN SO MANY WORDS THAT THE PRESENCE OF THE PARTICULAR
CLINKER WAS DUE TO THE DEFENDANT'S NEGLIGENCE, AND TO SET FORTH THE
DETAILED CIRCUMSTANCES THAT MADE THE DEFENDANT RESPONSIBLE, ALTHOUGH
THE RANGE OF INFERENCE OPEN TO A JURY WAS NOT THEREBY AFFECTED.  THIS
IS WHAT THAT COURT'S DECISION SAYS IN EFFECT IN APPLYING THE STIFF
GEORGIA DOCTRINE OF CONSTRUING A COMPLAINT MOST STRONGLY AGAINST THE
PLEADER.  IT IS NOT A DENIAL OF A FEDERAL RIGHT FOR GEORGIA TO REFLECT
SOMETHING OF THE PERNICKETINESS WITH WHICH SEVENTEENTH-CENTURY COMMON
LAW READ A PLEADING.  HAD THE GEORGIA COURT GIVEN LEAVE TO AMEND IN
ORDER TO SATISFY ELEGANCIES OF PLEADING, THE CASE WOULD OF COURSE NOT
BE HERE.  WITH FULL KNOWLEDGE OF THE NICETIES OF PLEADING REQUIRED BY
GEORGIA THE PLAINTIFF HAD THAT OPPORTUNITY.  GEORGIA CODE SEC. 81
1301(1933).  FN2  HE CHOSE TO STAND ON HIS COMPLAINT AGAINST A GENERAL
DEMURRER.  IF GEORGIA THEREAFTER AUTHORIZES DISMISSAL OF THE COMPLAINT,
THE STATE DOES NOT THEREBY COLLIDE WITH FEDERAL LAW. 

I WOULD AFFIRM THE JUDGMENT. 

FN1  INDEED, THE HISTORY OF GEORGIA LEGISLATION AND ADJUDICATION
INDICATES THAT LONG BEFORE THERE WAS A FEDERAL EMPLOYERS' LIABILITY ACT
THAT STATE WAS HUMANE AND NOT HARSH IN ALLOWING RECOVERY TO RAILROAD
EMPLOYEES FOR INJURIES CAUSED BY THE NEGLIGENCE OF THE CARRIER.  GA.
LAWS 1855, P. 155; AUGUSTA & S.R. CO. V. MCELMURRY, 24 GA. 75; DODD,
ADMINISTRATION OF WORKMEN'S COMPENSATION 13-14(1936). 

FN2  SEE ALSO WELLS V. BUTLER'S BUILDERS' SUPPLY CO., 128 GA. 37, 40,
57 S.E. 55, 57; CAHOON V. WILLS, 179 GA. 195, 175 S.E. 563; NOTE, 106
A.L.R. 570, 574(1937); DAVIS AND SHULMAN, GEORGIA PRACTICE AND
PROCEDURE SEC. 96(1948). 
..END :


















MANUFACTURERS TR. CO. V. BECKER, 338 U.S. 304 


NO. 55.  ARGUED OCTOBER 20, 1949.  - DECIDED NOVEMBER 21, 1949.  - 173
F.2D 944, AFFIRMED. 


IN AN ARRANGEMENT PROCEEDING INSTITUTED BY A CORPORATE DEBTOR UNDER
CHAPTER XI OF THE BANKRUPTCY ACT, AN INDENTURE TRUSTEE OBJECTED TO THE
ALLOWANCE OF CLAIMS EQUAL TO THE PRINCIPAL AMOUNT OF DEBENTURES
ACQUIRED AT A DISCOUNT, WHILE THE DEBTOR WAS INSOLVENT, BY RESPONDENTS,
WHO WERE CLOSE RELATIVES AND AN OFFICE ASSOCIATE OF THE DEBTOR'S
DIRECTORS.  THE REFEREE FOUND, IN EFFECT, THAT THERE WAS NO BAD FAITH
OR UNFAIR DEALING, AND THAT, DURING THE PERIOD OF THE PURCHASES,
RESPONDENTS' CONDUCT WITH REFERENCE TO THE AFFAIRS OF THE DEBTOR WAS TO
ITS MATERIAL BENEFIT.  THE REFEREE DISMISSED THE OBJECTIONS, AND BOTH
THE DISTRICT COURT AND THE COURT OF APPEALS AFFIRMED.  HELD:  ON THE
RECORD IN THIS CASE, EQUITABLE CONSIDERATIONS DO NOT REQUIRE THAT
RESPONDENTS' CLAIMS BE LIMITED TO THE COST OF THE DEBENTURES PLUS
INTEREST.  PP. 305-315. 

(A)  THE TWO RESPONDENTS WHO WERE CLOSE RELATIVES OF THE DIRECTORS
PURCHASED ALL THEIR DEBENTURES WHILE THE DEBTOR WAS A GOING CONCERN
(THOUGH TECHNICALLY INSOLVENT); AND, EVEN IF THEIR CLAIMS BE VIEWED AS
CLAIMS OF DIRECTORS, THE PROBABILITY THAT AN ACTUAL CONFLICT OF
INTERESTS AROSE FROM THEIR PURCHASES IS NOT GREAT ENOUGH TO JUSTIFY THE
EXERCISE OF EQUITY JURISDICTION TO LIMIT THEIR CLAIMS TO THE COST OF
THE DEBENTURES PLUS INTEREST.  PP. 309-313. 

(B)  THE THIRD RESPONDENT DID PURCHASE A SMALL PORTION OF HIS
DEBENTURES AFTER THE DEBTOR CEASED TO BE A GOING CONCERN; BUT HE WAS
MERELY AN OFFICE ASSOCIATE AND FRIEND OF THE DIRECTORS, HE HAD BEGUN TO
BUY DEBENTURES SOME MONTHS BEFORE THEIR ELECTION, THERE WAS NOTHING TO
INDICATE THAT HIS PURCHASES AFTER THEY BECAME DIRECTORS WERE INFLUENCED
BY ADVICE FROM THEM, THEY HAD NO INTEREST IN HIS HOLDINGS, AND
CONSIDERATION OF HIS CLAIM AS THAT OF A DIRECTOR IS PRECLUDED.  PP. 314
315. 

MANUFACTURERS TRUST CO., TRUSTEE, V. BECKER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A PROCEEDING UNDER CHAPTER XI OF THE BANKRUPTCY ACT, THE REFEREE'S
DISMISSAL OF OBJECTIONS TO THE ALLOWANCE OF CERTAIN CLAIMS WAS AFFIRMED
BY THE DISTRICT COURT (80 F.SUPP.  822) AND THE COURT OF APPEALS (173
F.2D 944).  THIS COURT GRANTED CERTIORARI.  337 U.S. 923.  AFFIRMED, P.
315. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING IN BANKRUPTCY IS ON OBJECTIONS TO THE ALLOWANCE OF
CLAIMS EQUAL TO THE PRINCIPAL AMOUNT OF BONDS OF THE DEBTOR ACQUIRED AT
A DISCOUNT DURING ITS INSOLVENCY BY CLOSE RELATIVES AND AN OFFICE
ASSOCIATE OF DIRECTORS OF DEBTOR.  PETITIONER'S OBJECTION THAT
EQUITABLE CONSIDERATIONS REQUIRE LIMITATION OF THE CLAIMS WAS DISMISSED
BY THE REFEREE, AND THE DISTRICT COURT AFFIRMED.  80 F.SUPP.  822. 
FOLLOWING AFFIRMANCE BY A DIVIDED COURT OF APPEALS FOR THE SECOND
CIRCUIT, 173 F.2D 944, WE GRANTED CERTIORARI BECAUSE THE ISSUE
PRESENTED HAS IMPORTANCE IN THE ADMINISTRATION OF THE ARRANGEMENT AND
CORPORATE REORGANIZATION PROVISIONS OF THE BANKRUPTCY ACT.  337 U.S.
923. 

ON JANUARY 8, 1946, CALTON CRESCENT, INC., SOLD ITS ONLY PROPERTY, AN
APARTMENT HOUSE LOCATED IN NEW ROCHELLE, NEW YORK, FOR $300,000
PURSUANT TO A CONTRACT ENTERED INTO IN OCTOBER 1945.  BEING UNABLE TO
DISCHARGE IN FULL ITS OBLIGATIONS UNDER DEBENTURE BONDS MATURING IN
1953, OUTSTANDING IN PRINCIPAL AMOUNT OF $254,450, DEBTOR FILED IN MAY
1946, A PETITION UNDER CH. XI OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 701
ET SEQ. UNDER THE PLAN OF ARRANGEMENT, AUTHORIZING A DIVIDEND OF 43.61%
OF THE PRINCIPAL AMOUNT OF THE BONDS, RESPONDENTS REGINE BECKER, EMILY
K. BECKER, AND WALTER A. FRIBOURG WERE TO RECEIVE AN AGGREGATE DIVIDEND
OF $64,237.53 ON ALLOWANCE OF CLAIMS BASED ON RESPECTIVE INDIVIDUAL
HOLDINGS OF DEBENTURES WHICH TOTAL $147,300 IN PRINCIPAL SUM BUT WERE
ACQUIRED AT A TOTAL COST OF $10,195.43.  FN1  PETITIONER, MANUFACTURERS
TRUST COMPANY, APPEARING INDIVIDUALLY AS CREDITOR FOR FEES AND
DISBURSEMENTS DUE IT AS INDENTURE TRUSTEE AND ALSO AS ORIGINAL TRUSTEE
UNDER SAID INDENTURE, OBJECTED TO ALLOWANCE OF RESPONDENTS' CLAIMS AS
FILED, ON THE GROUND THAT THE CIRCUMSTANCES OF RESPONDENTS'
ACQUISITIONS REQUIRE LIMITATION OF THEIR CLAIMS TO THE COST OF THE
DEBENTURES PLUS INTEREST. 

THE CIRCUMSTANCES PERTINENT TO OUR CONSIDERATION OF PETITIONER'S
OBJECTIONS ARE AS FOLLOWS:  THE DEBTOR WAS ORGANIZED IN 1933 TO TAKE
TITLE TO THE APARTMENT PROPERTY PURSUANT TO A PLAN OF REORGANIZATION. 
BY JANUARY 1942 DEBTOR HAD DEFAULTED UNDER THE TERMS OF THE FIRST
MORTGAGE AND WAS OPERATING WITH A DEFICIT; AT NO TIME IN THE PREVIOUS
SEVERAL YEARS HAD ITS DEBENTURES BEEN SELLING ON THE MARKET AT MORE
THAN 8% OF FACE VALUE. 

WHILE DEBTOR WAS THEN CONSIDERING A SALE OF THE PROPERTY FOR
$220,000, A SUIT TO ENJOIN THE SALE WAS BROUGHT BY SANFORD BECKER, SON
OF RESPONDENT REGINE BECKER AND HUSBAND OF RESPONDENT EMILY BECKER. 
FN2  THEREAFTER HE PROPOSED TO ARRANGE A LOAN ON SECOND MORTGAGE TO
DEBTOR OF $15,000 TO PAY OFF THE ARREARAGES ON THE FIRST MORTGAGE, ALL
SHARE AND DEBENTURE HOLDERS BEING INVITED TO PARTICIPATE.  IN APRIL
1942 DEBTOR ACCEPTED THE OFFER, BUT NONE OF ITS SHARE OR DEBENTURE
HOLDERS ELECTED TO PARTICIPATE OTHER THAN RESPONDENT FRIBOURG, WHO HAD
DESK ROOM IN THE OFFICES OF SANFORD BECKER AND HIS BROTHER NORMAN
BECKER AND WAS A LONG-TIME FRIEND OF THE FORMER.  THE LOAN WAS MADE BY
RESPONDENTS REGINE BECKER, EMILY BECKER, AND FRIBOURG.  THE SECOND
MORTGAGE THUS CREATED WAS IN DEFAULT BY THE END OF 1942, AND IN 1943
RESPONDENTS TOOK AN ASSIGNMENT OF RENTS BUT DID NOT FORECLOSE; NOR WAS
THERE CHANGE IN MANAGEMENT OF THE PROPERTY.  THE SECOND MORTGAGE AND
INTEREST WERE PAID UPON SALE OF THE PROPERTY IN 1946.  IN ADDITION TO
THE SECOND MORTGAGE, SUMS AGGREGATING $7,921.63 WERE ADVANCED BY
RESPONDENTS TO PAY TAXES; THIS AMOUNT WAS REPAID WITHOUT INTEREST IN
1944 AND 1945.  PURSUANT TO PROVISIONS OF THE LOAN AGREEMENT IN 1942,
SANFORD AND NORMAN BECKER WERE MADE DIRECTORS OF DEBTOR, AND WHEN THE
REMAINING THREE DIRECTORS RESIGNED IN 1944, THE VACANCIES WERE FILLED
BY NOMINEES OF THE BECKER BROTHERS. 

THE REFEREE FOUND THAT FROM EARLY 1942 THE MARKET VALUE OF THE
PROPERTY OF DEBTOR WAS INSUFFICIENT TO PAY ITS DEBTS.  HOWEVER, THE
RECORD SHOWS A TAX VALUATION DURING THE PERIOD OF ONLY SLIGHTLY LESS
THAN THE OUTSTANDING INDEBTEDNESS N3.  AND ALTHOUGH THE DEBTOR'S
OPERATING ACCOUNT FREQUENTLY RAN IN ARREARS, IT REVEALED A SURPLUS IN
1945.  PRIOR TO DISPOSING OF ITS PROPERTY DEBTOR WAS AT ALL TIMES A
GOING CONCERN.  FN4 

THE DEBENTURES ON WHICH RESPONDENTS CLAIM WERE ACQUIRED, AT PRICES
VARYING FROM 3% TO 14% OF FACE VALUE, AFTER THE BECKER BROTHERS BECAME
DIRECTORS IN 1942.  FN5  SANFORD BECKER DID NOT BUY ADDITIONAL
DEBENTURES AFTER BECOMING A DIRECTOR.  NORMAN BECKER NEVER OWNED ANY
INTEREST WHATEVER IN THE DEBTOR.  ALTHOUGH NEITHER OF THE BECKER
DIRECTORS WAS INTERESTED IN ANY PURCHASE OF THE RESPONDENTS, THE
DEBENTURES OF REGINE AND EMILY BECKER WERE PURCHASED THROUGH THE AGENCY
OF THE BECKER BROTHERS AND IN THE LATTER'S JUDGMENT.  THE DEBENTURES OF
REGINE BECKER WERE PURCHASED FROM AN OVER-THE-COUNTER SECURITIES
BROKER.  THOSE OF EMILY BECKER WERE ACQUIRED IN PART FROM THE SAME
DEALER, IN PART FROM AN ESTATE WHOSE ATTORNEYS WERE FULLY INFORMED AS
TO DEBTOR'S FINANCIAL AFFAIRS, AND IN PART FROM A CHRISTIAN ASSOCIATION
REPRESENTED BY A MEMBER OF ITS INVESTMENT COMMITTEE WHO WAS FULLY
ADVISED AS TO THE CONDITION OF DEBTOR. 

SOME OF FRIBOURG'S DEBENTURES WERE BOUGHT FROM DEALERS IN THE OVER
THE-COUNTER MARKET; OTHERS WERE ACQUIRED THROUGH AN AGENT FROM THE
PRESIDENT AND VICE PRESIDENT OF DEBTOR WHEN THEY WITHDREW FROM ITS
MANAGEMENT IN 1944, AND FROM OTHER HOLDERS AFTER THE RETIRING PRESIDENT
INSISTED THAT THE OFFER MADE TO HIM BY FRIBOURG'S AGENT BE EXTENDED TO
ALL HOLDERS AND BE ACCOMPANIED BY A STATEMENT OF THE PRESIDENT'S
INTENTION TO ACCEPT.  FRIBOURG WAS IN THE MARKET FOR SPECULATIVE
SECURITIES AND PURCHASED THE DEBENTURES AS A "GAMBLE," BEING INFLUENCED
BY THE TAX VALUATION OF THE APARTMENT BUILDING. 

ALL OF RESPONDENTS' DEBENTURES, WITH THE EXCEPTION OF $2,000 IN FACE
VALUE PURCHASED BY FRIBOURG FROM A DEALER, WERE ACQUIRED IN ADVANCE OF
THE CONTRACT FOR SALE OF THE APARTMENT PROPERTY AND THE FILING OF
DEBTOR'S PETITION FOR ARRANGEMENT.  FN6 

IT WAS THE REFEREE'S FINDING, LEFT UNDISTURBED BY BOTH COURTS BELOW,
THAT RESPONDENTS' PURCHASES WERE WITHOUT OVERREACHING OR FAILURE TO
DISCLOSE ANY MATERIAL FACT TO THE SELLING BONDHOLDERS.  PETITIONER DOES
NOT HERE CONTEND THAT RESPONDENTS' CLAIMS SHOULD BE LIMITED BECAUSE OF
CONDUCT BY THE BECKER DIRECTORS OR BY RESPONDENTS AMOUNTING TO BAD
FAITH OR ABUSE OF FIDUCIARY ADVANTAGE.  NOR DOES PETITIONER CONTEND
THAT RESPONDENTS' BONDHOLDINGS INFLUENCED THE CONDUCT OF CORPORATE
AFFAIRS TO THE INJURY OF THE CORPORATION OR OTHER CREDITORS.  INDEED,
THE REFEREE FOUND THAT THE PURCHASES WERE NOT UNFAIR TO DEBTOR, THAT AT
THE TIME OF RESPONDENTS' PURCHASES DEBTOR WAS NOT IN THE FIELD TO
SETTLE ITS INDEBTEDNESS ON THE DEBENTURES, AND THAT THE ASSISTANCE
RENDERED TO DEBTOR BY RESPONDENTS MATERIALLY AIDED IN ITS GRAVE
FINANCIAL SITUATION.  MOREOVER, THE FINDINGS INDICATE THAT THE MOST
GENEROUS SUGGESTION OF AN OFFER FOR THE APARTMENT BUILDING AFTER THE
BECKERS BECAME DIRECTORS AND PRIOR TO THE SALE WAS AT A FIGURE
SUBSTANTIALLY LESS THAN THE SALE PRICE. 

PETITIONER URGES BROADLY THAT DIRECTORS ARE PRECLUDED FROM PROFITING
BY THE PURCHASE OF CLAIMS AGAINST AN INSOLVENT CORPORATION.  AND, IT
CONTENDS, IF DIRECTORS MAY CLAIM ONLY THE COST OF DEBT SECURITIES
ACQUIRED AT A DISCOUNT DURING A DEBTOR'S INSOLVENCY, THOSE RELATED AS
RESPONDENTS ARE TO THE BECKER DIRECTORS SHOULD NOT BE PERMITTED TO DO
MORE.  THUS WE VIEW RESPONDENTS' CLAIMS INITIALLY AS IF THEY WERE
CLAIMS OF DIRECTORS. 

THIS COURT HAS REPEATEDLY INSISTED ON GOOD FAITH AND FAIR DEALING ON
THE PART OF CORPORATE FIDUCIARIES.  IT IS ESPECIALLY CLEAR, WHEN CLAIMS
IN BANKRUPTCY ACCRUE TO THE BENEFIT OF A CORPORATE OFFICER OR DIRECTOR,
THAT THE COURT MUST REJECT ANY CLAIM THAT WOULD NOT BE FAIR AND
EQUITABLE TO OTHER CREDITORS.  PEPPER V. LITTON, 308 U.S. 295, 308
309(1939).  FN7 

CLAIMS OF A CORPORATE OFFICER OR DIRECTOR ARISING OUT OF TRANSACTIONS
WITH THE CORPORATION HAVE BEEN ENFORCED WHEN GOOD FAITH AND FAIRNESS
WERE FOUND.  SANFORD FORK & TOOL CO. V. HOWE, BROWN & CO., 157 U.S.
312(1895); CF. MANUFACTURING CO. V. BRADLEY, 105 U.S. 175(1882); SEE
RICHARDSON'S EX'R V. GREEN, 133 U.S. 30, 43(1890); TWIN-LICK OIL CO. V.
MARBURY, 91 U.S. 587, 589-591(1876).  LIKEWISE A STANDARD OF GOOD FAITH
AND FAIR DEALING HAS BEEN FOUND APPLICABLE, WHERE NOT SUPERSEDED BY A
DIFFERING LEGISLATIVE OR ADMINISTRATIVE RULE, TO PURCHASES BY DIRECTORS
OF CORPORATE SHARES, IN THE OVER-THE-COUNTER MARKET, AT LESS THAN BOOK
VALUE ON CONVERSION UNDER A PLAN OF PUBLIC UTILITY REORGANIZATION. 
SECURITIES AND EXCHANGE COMMISSION V. CHENERY CORPORATION, 318 U.S.
80(1943); CF. ID., 332 U.S. 194(1947).  IN THE FIRST CHENERY DECISION
IT WAS DECLARED THAT EQUITY HAS NOT IMPOSED "UPON OFFICERS AND
DIRECTORS OF A CORPORATION ANY FIDUCIARY DUTY TO ITS STOCKHOLDERS WHICH
PRECLUDES THEM, MERELY BECAUSE THEY ARE OFFICERS AND DIRECTORS, FROM
BUYING AND SELLING THE CORPORATION'S STOCK."  318 U.S. AT 88. 

WHEN THE TRANSACTIONS UNDERLYING RESPONDENTS' CLAIMS HERE ARE DRAWN
ALONGSIDE A GOOD FAITH STANDARD OF FIDUCIARY OBLIGATION, THEY APPEAR
UNOBJECTIONABLE.  THERE IS NO COMPONENT OF UNFAIR DEALING OR BAD
FAITH.  FN8  THE FINDINGS NEGATIVE ANY MISREPRESENTATION OR DECEPTION,
ANY UTILIZATION OF INSIDE KNOWLEDGE OR STRATEGIC POSITION, OR ANY
RIVALRY WITH THE CORPORATION.  FN9 DURING THE PERIOD OF THE PURCHASES
THE CONDUCT OF THE BECKER DIRECTORS AND OF RESPONDENTS WITH REFERENCE
TO THE AFFAIRS OF THE DEBTOR WAS TO ITS SUBSTANTIAL BENEFIT AND TO THE
ADVANTAGE OF THE OTHER DEBENTURE HOLDERS.  AND THERE IS NOTHING TO
SUGGEST THAT HAD THE DEBENTURES BEEN ACQUIRED BY THE BECKER DIRECTORS,
THEY WOULD HAVE BEEN UNJUSTLY ENRICHED.  CF. SECURITIES AND EXCHANGE
COMMISSION V. CHENERY CORPORATION, SUPRA, 318 U.S. AT 86. 

HOWEVER, IT IS THE CONTENTION OF PETITIONER, AND OF THE SECURITIES
AND EXCHANGE COMMISSION AS AMICUS CURIAE, THAT A STANDARD OF GOOD FAITH
AND FAIR DEALING IS INADEQUATE HERE.  RELYING PARTICULARLY UPON
MAGRUDER V. DRURY, 235 U.S. 106(1914), THEY INVOKE THE PRINCIPLE THAT A
TRUSTEE CAN MAKE NO PROFIT FROM HIS TRUST.  BUT MAGRUDER V. DRURY
INVOLVED AN EXPRESS TRUST, AND EVEN DURING INSOLVENCY CORPORATE ASSETS
"ARE NOT IN ANY TRUE AND COMPLETE SENSE TRUSTS."  HOLLINS V. BRIERFIELD
COAL & IRON CO., 150 U.S. 371, 381-382(1893).  FN10 

THE COMMISSION ASSERTS, ALSO, THAT IF A DIRECTOR IS FREE TO ACQUIRE
CORPORATE OBLIGATIONS AT A DISCOUNT DURING INSOLVENCY AND LATER ENFORCE
THEM IN FULL, HE WILL BE SUBJECT TO A POSSIBLE CONFLICT OF INTERESTS
INCONSISTENT WITH HIS ROLE AS FIDUCIARY TO CREDITORS OF THE
CORPORATION.  SPECIFICALLY IT IS ARGUED THAT HE MAY SEEK TO POSTPONE
ADJUSTMENT CLAIMS OR THE INSTITUTION OF PROCEEDINGS FOR RELIEF, WHEN
SUCH ACTION WOULD SERVE THE INTERESTS OF THE CORPORATION AND ITS
CREDITORS, IN ORDER TO CONTINUE HIS OWN PURCHASE OF CORPORATE
OBLIGATIONS AT A MARKET PRICE LOWER THAN THE VALUATION WHICH HE HAS
MADE WITH THE BENEFIT OF INSIDE INFORMATION. 

THIS COURT HAS RECOGNIZED THAT EQUITY MUST APPLY NOT ONLY THE
DOCTRINES OF UNJUST ENRICHMENT WHEN FIDUCIARIES HAVE YIELDED TO THE
TEMPTATION OF SELF-INTEREST BUT ALSO A STANDARD OF LOYALTY WHICH WILL
PREVENT A CONFLICT OF INTERESTS FROM ARISING.  SEE WEIL V. NEARY, 278
U.S. 160, 173(1929); CF. WOODS V. CITY NAT. BANK & TRUST CO., 312 U.S.
262, 268(1941).  IN THIS CASE THE CONSIDERATION IS WHETHER OR TO WHAT
EXTENT A CONFLICT OF INTERESTS WOULD ARISE FROM A DIRECTOR'S
OPPORTUNITY TO PURCHASE UNMATURED OBLIGATIONS OF A CORPORATION WHICH,
THOUGH TECHNICALLY INSOLVENT, REMAINS NEVERTHELESS A GOING CONCERN. 
THAT "THERE IS NO SUCH CONFLICT IN THE ORDINARY CASE OF THE PURCHASE BY
A DIRECTOR IN A GOING CORPORATION OF ITS OUTSTANDING OBLIGATIONS,"
SEYMOUR V. SPRING FOREST CEMETERY ASSN., 144 N.Y. 333, 344, 39 N.E.
365, 367(1895), WOULD SEEM TRUE NOT ONLY OF SOLVENT CORPORATIONS.  FN11
CERTAINLY THE PRESENT RECORD DOES NOT TEND TO ESTABLISH THAT THE
OPPORTUNITY FOR SUCH PURCHASES DURING INSOLVENCY WOULD DEPRIVE A GOING
CORPORATION OF THE SOUND JUDGMENT OF ITS OFFICER.  AND IN ANY EVENT THE
POTENTIALITY OF CONFLICT MUST BE WEIGHED AGAINST THE DESIRABILITY OF
PERMITTING REINFORCEMENT OF THE INSOLVENT'S POSITION INSOFAR AS A
DIRECTOR'S ACQUISITION OF CLAIMS MAY HELP.  FN12  ON THIS RECORD THE
PROBABILITY THAT AN ACTUAL CONFLICT OF LOYALTIES AROSE FROM THE
OPPORTUNITY TO PURCHASE RESPONDENTS' CLAIMS, WHILE THE DEBTOR WAS A
GOING CONCERN, IS NOT GREAT ENOUGH TO JUSTIFY THE EXERCISE OF EQUITY
JURISDICTION WHICH PETITIONER URGES.  FN13 

UNDOUBTEDLY THE POSSIBILITIES OF A CONFLICT OF INTERESTS FOR THE
PURCHASING DIRECTOR ARE INTENSIFIED AS THE CORPORATION BECOMES LESS A
GOING CONCERN AND MORE A PROSPECTIVE SUBJECT OF JUDICIAL RELIEF.  AND
IF IT IS CLEAR THAT A FIDUCIARY MAY ORDINARILY PURCHASE DEBT CLAIMS IN
FAIR TRANSACTIONS DURING SOLVENCY OF THE CORPORATION,  FN14 THE LOWER
FEDERAL COURTS SEEM EQUALLY AGREED THAT HE CANNOT PURCHASE AFTER
JUDICIAL PROCEEDINGS FOR THE RELIEF OF A DEBTOR ARE EXPECTED OR HAVE
BEGUN.  FN15  IN THIS CASE, WHICH LIES BETWEEN, IT IS UNNECESSARY TO
DETERMINE PRECISELY AT WHAT POINT THE PROBABILITY OF CONFLICT REQUIRES
THAT EQUITY DECLARE ENDED THE OPPORTUNITY FOR PROFITABLE TRADING.  IT
COULD HARDLY HAVE BEEN PRIOR TO THE LATEST PURCHASES OF REGINE AND
EMILY BECKER.  FN16   THE NATURE OF THE RELATION BETWEEN FRIBOURG AND
THE BECKER DIRECTORS MAKES IMMATERIAL THAT SOME OF FRIBOURG'S
DEBENTURES MAY HAVE BEEN PURCHASED AFTER THE CORPORATION CEASED TO HAVE
THE POTENCY OF A GOING CONCERN, IN EXPECTATION OF OR EVEN AFTER
BANKRUPTCY.  NEITHER DIRECTOR HAD ANY INDIRECT INTEREST IN FRIBOURG'S
HOLDINGS OR SERVED AS HIS AGENT FOR PURCHASE.  FRIBOURG, MOREOVER, HAD
BEGUN TO ACQUIRE DEBENTURES SOME MONTHS BEFORE THE NEGOTIATIONS LEADING
TO THE ELECTION OF THE BECKERS AS DIRECTORS OF THE DEBTOR AND,
ACCORDING TO FRIBOURG'S UNCONTRADICTED TESTIMONY, HE BEGAN TO PURCHASE
AFTER LOOKING OVER THE APARTMENT FOLLOWING SANFORD BECKER'S MENTION OF
HIS OWN PURCHASE.  THERE IS NOTHING IN THE RECORD TO INDICATE THAT
FRIBOURG'S PURCHASES AFTER THE BECKERS BECAME DIRECTORS WERE INFLUENCED
BY ADVICE FROM THEM.  ACCORDINGLY, ANY CONSIDERATION OF FRIBOURG'S
CLAIM AS THAT OF A DIRECTOR IS PRECLUDED. 

A WORD OF CAUTION AS TO THE SCOPE OF OUR DECISION IS DESIRABLE IN
VIEW OF JUDGE LEARNED HAND'S OPINION BELOW.  HE SUGGESTED THAT IF IN
FACT LIQUIDATION HAD BEEN IMMINENT AT THE TIME OF RESPONDENTS'
PURCHASES OR IF IT WERE FAIRLY DEMONSTRABLE, AS A MATTER OF EXPERIENCE,
THAT A DIRECTOR FREE FROM ALL POTENTIAL SELF-INTEREST WOULD BE MORE
LIKELY TO INITIATE LIQUIDATION PROCEEDINGS OR TO EFFECT A DEBT
SETTLEMENT THAN ONE NOT WHOLLY DISINTERESTED, A COURT OF EQUITY SHOULD
EXPLORE SUCH ISSUES AND NOT DISMISS THEM OUT OF HAND.  THIS DECISION IS
NOT MEANT TO NEGATIVE THE RELEVANCE OF THESE ISSUES WHEN RAISED BY A
PROPER RECORD.  WE MENTION THESE MATTERS BECAUSE THE SECURITIES AND
EXCHANGE COMMISSION URGES THE IMPORTANCE OF A DECISION IN THIS CASE FOR
QUESTIONS THAT MAY WELL ARISE IN PROCEEDINGS UNDER CH. X. IN SUCH
PROCEEDINGS THE SECURITIES AND EXCHANGE COMMISSION, ACTING AS THE
STATUTORY ADVISOR TO THE COURT, WOULD BE WITHIN ITS RIGHTFUL FUNCTION
IN SUBMITTING TO THE COURT THE LIGHT OF ITS EXPERIENCE ON DEALINGS OF
THE GENERAL KIND DISCLOSED IN THIS CASE.  HERE WE HAVE PROVEN FACTS IN
A PARTICULAR CASE, AND NOT A BODY OF EVIDENCE SUBMITTED BY THE
SECURITIES AND EXCHANGE COMMISSION, PRESUMABLY INFORMED BY EXPERT
UNDERSTANDING. 

THE DECISION OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  THE AMOUNT AND COST OF THE RESPECTIVE HOLDINGS OF THE
RESPONDENTS, INSOFAR AS OBJECTED TO, ARE AS FOLLOWS:

                                 PRINCIPAL

                      AMOUNT   COST 

REGINE BECKER ....................    $44,500  $3060.63 

EMILY K. BECKER ..................     52,800   5010.00 

WALTER A. FRIBOURG ...............     50,000   2124.80 

FN2  SANFORD BECKER AND RESPONDENT FRIBOURG FIRST BECAME INTERESTED
IN THE AFFAIRS OF DEBTOR IN SEPTEMBER 1941.  SOON THEREAFTER EACH
PURCHASED, INDEPENDENTLY, DEBENTURES OF DEBTOR OF THE FACE VALUE OF
$5,000.  NO CONTEST IS MADE OF THESE PURCHASES. 

IT APPEARS THAT TRANSACTIONS IN THE DEBENTURES INCLUDED THE TRANSFER
OF CAPITAL SHARES OF THE DEBTOR WHICH HAD NO MARKET APART FROM THE
DEBENTURES. 

FN3  THE MAJOR ITEMS OF INDEBTEDNESS CONSISTED OF (1) THE FIRST
MORTGAGE ON THE APARTMENT BUILDING IN ORIGINAL PRINCIPAL AMOUNT OF
$175,000, WHICH HAD BEEN REDUCED BY 1946 TO $154,000, OF WHICH
REDUCTION $7,875 HAD BEEN PAID SINCE 1943; (2) THE SECOND MORTGAGE AND
TAX ADVANCES OF THE RESPONDENTS TOTALLING SOME $22,000, AND (3) THE
DEBENTURES OF $254,450, ON WHICH, HOWEVER, INTEREST WAS PAYABLE ONLY IF
EARNED.  THE TAX VALUATION WAS $421,630. 

FN4  THE DISTRICT COURT'S CHARACTERIZATION OF DEBTOR AS A GOING
CONCERN WAS NOT UPSET BY THE COURT OF APPEALS AND IS ACCEPTED HERE. 

FN5  REGINE BECKER BEGAN PURCHASES ON FEBRUARY 10, 1944, AND
CONTINUED THROUGH AUGUST 30, 1945.  THE PURCHASES OF EMILY BECKER WERE
MADE BETWEEN MAY 24, 1944, AND FEBRUARY 5, 1945.  IN ADDITION TO THE
PURCHASES REFERRED TO IN NOTE 2, SUPRA, FRIBOURG MADE PURCHASES THROUGH
JUNE 4, 1946. 

FN6  THE LATEST PURCHASE BY A RESPONDENT CLEARLY PRIOR TO THE
CONTRACT FOR SALE WAS BY REGINE BECKER ON AUGUST 30 PRECEDING THE
CONTRACT IN OCTOBER 1945.  FRIBOURG APPARENTLY ACQUIRED $1,500 OF
DEBENTURES AFTER THE CONTRACT OF SALE AND AN ADDITIONAL $500 AFTER THE
FILING OF DEBTOR'S PETITION. 

FN7  SINCE THE POWER OF DISALLOWANCE OF CLAIMS, CONFERRED ON THE
BANKRUPTCY COURT BY SEC. 2 OF THE ACT, 30 STAT. 545, 11 U.S.C. SEC. 11,
EMBRACES THE REJECTION OF CLAIMS "IN WHOLE OR IN PART, ACCORDING TO THE
EQUITIES OF THE CASE," PEPPER V. LITTON, 308 U.S. 295, 304-305(1939),
THE COURT MAY UNDOUBTEDLY REQUIRE LIMITATION OF THE AMOUNT OF CLAIMS IN
VIEW OF EQUITABLE CONSIDERATIONS.  CF. BANKRUPTCY ACT, SEC. 212, 52
STAT. 895, 11 U.S.C. SEC. 612. 

FN8  CF. IN RE THE VAN SWERINGEN CO., 119 F.2D 231(C.A.6TH CIR.
1941); IN RE NORCOR MFG. CO., 109 F.2D 407(C.A.7TH CIR. 1940). 

FN9 CF. IN RE JERSEY MATERIALS CO., 50 F.SUPP.  428(D.N.J. 1943); IN
RE MCCRORY STORES CORP., 12 F.SUPP.  267(S.D.N.Y. 1935). 

FN10  OTHER HOLDINGS UPON WHICH THE COMMISSION RELIES, PEPPER V.
LITTON, SUPRA, NOTE 7, AND WOODS V. CITY NAT. BANK & TRUST CO., 312
U.S. 262(1941), WERE CONSIDERED IN SECURITIES AND EXCHANGE COMMISSION
V. CHENERY CORPORATION, 318 U.S. 80, 89(1943), AND THERE DISTINGUISHED
ON GROUNDS WHICH ARE ALSO DISPOSITIVE HERE. 

FN11  COURTS OF EQUITY, IN DEFINING THE RESPONSIBILITY OF OFFICERS OF
A CORPORATION WHICH IS INSOLVENT AND YET A GOING CONCERN, HAVE
FREQUENTLY ASSIGNED GREATER IMPORTANCE TO THE CORPORATION'S VITALITY
THAN TO ITS INSOLVENCY.  E.G., SANFORD FORK & TOOL CO. V. HOWE, BROWN &
CO., 157 U.S. 312(1895); WHITE, POTTER & PAIGE MFG. CO. V. HENRY B.
PETTES IMPORTING CO., 30 F. 864(E.D. MO. 1887). 

FN12  AS RESPONDENTS' PURCHASES OF DEBENTURES RESULTED IN THEIR
SECURING CONTROL OF DEBTOR, SEE NOTE 2, SUPRA, THE ACQUISITIONS
ARGUABLY WERE A FACTOR IN PREVENTING FURTHER FINANCIAL DETERIORATION OF
DEBTOR.  SEE ALSO 62 HARV. L. REV. 1391, 1392(1949):  INSOLVENCY "IS
THE VERY TIME WHEN SUCH PURCHASES MAY BE OF MOST BENEFIT TO THE
CORPORATION, SINCE THE CREDIT OF THE CORPORATION MAY BE IMPROVED IF IT
IS KNOWN THAT DIRECTORS ARE PURCHASING THE CORPORATION'S SECURITIES;
ALSO IT MAY BE POSSIBLE TO FORESTALL A BANKRUPTCY PETITION WHILE THE
CORPORATION IMPROVES ITS FINANCIAL POSITION." 

FN13  CF. IN THE MATTER OF WADE PARK MANOR CORPORATION, REPORT OF
SPECIAL MASTER:  CLAIMS OF MACKLIN ET AL. (N.D. OHIO, 1949); SEE 3
COLLIER, BANKRUPTCY (14TH ED.), P. 1784, 1948 SUPP. P. 124. 

FN14  SEE IN RE PHILADELPHIA & WESTERN R. CO., 64 F.SUPP.  738,
739(E.D. PA. 1946); RIPPERGER V. ALLYN, 25 F.SUPP.  554, 555(S.D.N.Y.
1938); IN RE MCCRORY STORES CORP., NOTE 9, SUPRA, AT 269. 

FN15  MONROE V. SCOFIELD, 135 F.2D 725(C.A. 10TH CIR. 1943); IN RE
NORCOR MFG. CO., NOTE 8, SUPRA; IN RE PHILADELPHIA & WESTERN R. CO.,
NOTE 14, SUPRA; IN RE JERSEY MATERIALS CO., NOTE 9, SUPRA; IN RE LOS
ANGELES LUMBER PRODUCTS CO., 46 F.SUPP.  77(S.D. CAL. 1941). 

FN16  THUS IT BECOMES UNNECESSARY TO DETERMINE WHETHER THE RELATION
OF THE BECKER RESPONDENTS TO THE DIRECTORS WAS SUCH AS TO REQUIRE
LIMITATION OF THESE RESPONDENTS' CLAIMS IF THEY WOULD BE DISALLOWED IN
PART AS CLAIMS OF DIRECTORS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE BLACK JOINS, DISSENTING. 

WHILE CORPORATE DIRECTORS ARE NOT CLASSED AS EXPRESS TRUSTEES, THEIR
OBLIGATIONS TO THEIR RESPECTIVE CORPORATIONS ARE FIDUCIARY IN
CHARACTER.  THE MORE PRECARIOUS THE CONDITION OF THE CORPORATION, THE
MORE IT NEEDS THE UNDIVIDED LOYALTY OF ITS DIRECTORS.  CONFLICTS OF
INTEREST MUST BE RESOLVED IN ITS FAVOR.  AN EXAMPLE OF THE NEED FOR
DOING SO ARISES WHENEVER, IN THE FACE OF A PROSPECT OF THE
CORPORATION'S LIQUIDATION, SOME OF ITS DIRECTORS INVEST IN ITS NOTES AT
A SUBSTANTIAL DISCOUNT.  AN INHERENT CONFLICT OF INTERESTS IS THEREBY
CREATED.  IT MAY BE NECESSARY FOR THEM TO CHOOSE BETWEEN A CORPORATE
POLICY OF REORGANIZATION WHICH MIGHT BE BEST FOR THE CORPORATION AND
ONE OF LIQUIDATION WHICH MIGHT YIELD MORE CERTAIN PROFITS TO THEM AS
NOTEHOLDING DIRECTORS.  THE FIDUCIARY OBLIGATION OF SUCH DIRECTORS TO
THEIR CORPORATION MIGHT THUS CONFLICT WITH THEIR PERSONAL INTERESTS AS
NOTEHOLDERS.  THEIR ACCESS TO CONFIDENTIAL CORPORATE INFORMATION
EMPHASIZES THE GOOD FAITH EXPECTED OF THEM.  THE SOLUTION LIES IN
MAKING THEM ACCOUNTABLE TO THEIR CORPORATION FOR THEIR PROFITS FROM
SUCH AN INVESTMENT, MUCH AS A TRUSTEE MUST ACCOUNT TO HIS BENEFICIARIES
FOR HIS PROFITS FROM DEALINGS IN THE SUBJECT MATTER OF HIS TRUST.  THIS
RESULT WOULD SPRING WHOLLY FROM THE FIDUCIARY NATURE OF THE OBLIGATIONS
OF DIRECTORS TO THEIR CORPORATION.  IT WOULD NEED NO PROOF OF A BREACH
OF TRUST OR OF THE ACTUAL OVERREACHING OF ANYONE.  FN1 

AS LONG AS A CORPORATION ENJOYS THE HEALTHY STATUS OF A GOING
CONCERN, ITS DIRECTORS GENERALLY MAY INVEST FREELY IN ITS SECURITIES
WITHOUT ACCOUNTABILITY FOR THEIR RESULTING PROFITS.  THEIR
DIRECTORSHIPS SHOULD MAKE THEM ACCOUNTABLE FOR SUCH PROFITS WHEN THEIR
PERSONAL INTERESTS AS PURCHASERS OF SECURITIES MAY CONFLICT WITH THEIR
OBLIGATIONS AS DIRECTORS.  FN2  A MERE EXCESS OF A CORPORATION'S
LIABILITIES OVER ITS ASSETS MAY NOT SUBJECT ITS DIRECTORS TO THIS
ACCOUNTABILITY.  NEVERTHELESS, ANY EVIDENCE OF THE FINANCIAL
INSTABILITY OF THEIR CORPORATION OBLIGATES THE DIRECTORS TO OVERCOME
WHATEVER PRESUMPTION OF CONFLICT OF INTERESTS BETWEEN THEIR OWN AND
THOSE OF THE CORPORATION OR OF ITS CREDITORS THAT SUCH EVIDENCE
PRESENTS. 

IN THE INSTANT CASE THERE SHOULD BE A FINDING WHETHER OR NOT, AT THE
TIME OF THE PURCHASES OF THE DEBENTURES IN QUESTION, THERE WAS A
SUFFICIENT PROSPECT OF LIQUIDATION TO BRING THE INTERESTS OF DIRECTORS
AS DEBENTURE PURCHASERS INTO CONFLICT WITH THE INTERESTS OF THEIR
CORPORATION.  IF SUCH A CONFLICT IS ESTABLISHED, IT THEN WILL BE
NECESSARY TO DETERMINE THE EXTENT, IF ANY, TO WHICH THE RELATIVES AND
ASSOCIATES OF SUCH DIRECTORS ARE TO BE IDENTIFIED WITH THEM. 

I AGREE WITH THE REASONING OF THE DISSENT BELOW.  173 F.2D 944, 951. 
ACCORDINGLY, I WOULD REVERSE THE JUDGMENT AND REMAND THE CAUSE FOR
FURTHER FINDINGS IN ACCORDANCE WITH THIS OPINION. 

FN1  EXPRESSION HAS BEEN GIVEN TO SUCH A PRINCIPLE IN MANY CASES
WHERE THERE HAVE ALSO OCCURRED BREACHES OF TRUST OF A NATURE SO SERIOUS
AS NOT TO REQUIRE A FINAL RELIANCE UPON THE PRINCIPLE.  SEE, E.G., IN
RE THE VAN SWERINGEN CO., 119 F.2D 231(C.A.6TH CIR.); IN RE NORCOR MFG.
CO., 109 F.2D 407(C.A.7TH CIR.); IN RE PHILADELPHIA & WESTERN R. CO.,
64 F.SUPP.  738(E.D. PA.); IN RE JERSEY MATERIALS CO., 50 F.SUPP. 
428(N.J.); IN RE LOS ANGELES LUMBER PRODUCTS CO., 46 F.SUPP.  77(S.D.
CAL.); IN RE MCCRORY STORES CORP., 12 F.SUPP.  267, 269(S.D.N.Y.).  SEE
ALSO, 3 FLETCHER, CYCLOPEDIA OF CORPORATIONS SEC. 869.1(1947); 2
REMINGTON ON BANKRUPTCY SEC. 975.01(SUPP.  1947). 

FN2  DIRECTORS ORDINARILY MAY BUY AND SELL THE STOCK OF THEIR
CORPORATION, WITHOUT ACCOUNTABILITY, EXCEPT UNDER SPECIAL CIRCUMSTANCES
OF UNFAIRNESS IN THE PARTICULAR TRANSACTION.  3 FLETCHER, CYCLOPEDIA OF
CORPORATIONS SECS. 1171, 1174(1947); BALLANTINE ON CORPORATIONS SEC.
80(REV.  ED. 1946).  THEIR PURCHASE OF STOCK INCREASES THEIR STAKE IN
THE ULTIMATE INTERESTS OF THE CORPORATION THEY SERVE. 
..END :





















KINGSLAND V. DORSEY, 338 U.S. 318 


NO. 53.  ARGUED OCTOBER 18-19, 1949.  - DECIDED NOVEMBER 21, 1949.  - 84
U.S. APP. D.C. 264, 173 F.2D 405, REVERSED - 69 F.SUPP.  788,
AFFIRMED. 


ACTING UNDER R.S. SEC. 487, 35 U.S.C. SEC. 11, THE COMMISSIONER OF
PATENTS FOUND, AFTER HEARINGS, THAT AN ATTORNEY HAD BEEN GUILTY OF
GROSS MISCONDUCT AND ENTERED AN ORDER BARRING HIM FROM PRACTICE BEFORE
THE PATENT OFFICE.  HELD:  THE FINDINGS WERE AMPLY SUPPORTED BY THE
EVIDENCE, CHARGES OF UNFAIRNESS IN THE HEARINGS WERE WHOLLY WITHOUT
SUPPORT, AND THE ORDER IS SUSTAINED.  PP. 318-320. 

KINGSLAND, COMMISSIONER OF PATENTS, V. DORSEY. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE DISTRICT COURT AFFIRMED AN ORDER OF THE COMMISSIONER OF PATENTS
BARRING AN ATTORNEY FROM PRACTICE BEFORE THE PATENT OFFICE.  69
F.SUPP.  788.  THE COURT OF APPEALS REVERSED.  84 U.S. APP. D.C. 264,
173 F.2D 405.  THIS COURT GRANTED CERTIORARI.  337 U.S. 914.  JUDGMENT
OF THE COURT OF APPEALS REVERSED AND THAT OF THE DISTRICT COURT
AFFIRMED, P. 320. 

PER CURIAM. 

ACTING UNDER THE PROVISIONS OF SEC. 487 OF THE REVISED STATUTES (35
U.S.C. SEC. 11), THE COMMISSIONER OF PATENTS FOUND AFTER HEARINGS THAT
PETITIONER, AN ATTORNEY, HAD BEEN GUILTY OF GROSS MISCONDUCT, AND
ENTERED AN ORDER BARRING HIM FROM PRACTICE BEFORE THE UNITED STATES
PATENT OFFICE.  PURSUANT TO AUTHORITY GRANTED BY THE SAME PROVISIONS,
THE DISTRICT COURT REVIEWED THE COMMISSIONER'S ORDER.  CONCLUDING THAT
THE HEARINGS HAD BEEN FAIRLY CONDUCTED AFTER DUE NOTICE OF CHARGES AND
THAT THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDINGS AND ACTION
OF THE COMMISSIONER, THE DISTRICT COURT AFFIRMED THE ORDER.  69
F.SUPP.  788.  THE COURT OF APPEALS REVERSED, 84 U.S. APP. D.C. 264,
173 F.2D 405.  A MAJORITY OF THAT COURT THOUGHT THE NOTICE OF CHARGES
INADEQUATE AND THE PROCEEDINGS BEFORE THE COMMISSION UNFAIR.  IT ALSO
HELD THAT THE DISTRICT COURT HAD TOO NARROWLY RESTRICTED ITS SCOPE OF
REVIEW IN HOLDING THAT SUBSTANTIAL EVIDENCE WAS SUFFICIENT TO SUPPORT
THE FINDINGS.  IT APPARENTLY DREW A DISTINCTION BETWEEN THE PHRASES
"SUBSTANTIAL EVIDENCE" AND "SUBSTANTIAL PROBATIVE EVIDENCE."  MEASURING
THE FINDINGS BY THE LATTER PHRASE, IT HELD THAT THE COMMISSIONER'S
FINDINGS WERE NOT SUPPORTED BY "SUBSTANTIAL PROBATIVE EVIDENCE."  JUDGE
EDGERTON, DISSENTING, THOUGHT THE HEARINGS HAD BEEN FAIRLY CONDUCTED
AND "THE RESULT JUST."  HE AGREED WITH THE DISTRICT COURT THAT
"SUBSTANTIAL EVIDENCE" WOULD HAVE BEEN SUFFICIENT BUT WENT ON TO SAY
THAT HE THOUGHT THE "PROOF CONCLUSIVE." 

THE STATUTE UNDER WHICH THE COMMISSIONER ACTED REPRESENTS
CONGRESSIONAL POLICY IN AN IMPORTANT FIELD.  IT RELATES TO THE
CHARACTER AND CONDUCT OF "PERSONS, AGENTS, OR ATTORNEYS" WHO
PARTICIPATE IN PROCEEDINGS TO OBTAIN PATENTS.  WE AGREE WITH THE
FOLLOWING STATEMENT MADE BY THE PATENT OFFICE COMMITTEE ON ENROLLMENT
AND DISBARMENT THAT CONSIDERED THIS CASE:  "BY REASON OF THE NATURE OF
AN APPLICATION FOR PATENT, THE RELATIONSHIP OF ATTORNEYS TO THE PATENT
OFFICE REQUIRES THE HIGHEST DEGREE OF CANDOR AND GOOD FAITH.  IN ITS
RELATION TO APPLICANTS, THE OFFICE  ...  MUST RELY UPON THEIR INTEGRITY
AND DEAL WITH THEM IN A SPIRIT OF TRUST AND CONFIDENCE  ...  "  IT WAS
THE COMMISSIONER, NOT THE COURTS, THAT CONGRESS MADE PRIMARILY
RESPONSIBLE FOR PROTECTING THE PUBLIC FROM THE EVIL CONSEQUENCES THAT
MIGHT RESULT IF PRACTITIONERS SHOULD BETRAY THEIR HIGH TRUST.  HAVING
SERIOUS DOUBTS AS TO WHETHER THE COURT OF APPEALS ACTED PROPERLY HERE
IN NULLIFYING THE COMMISSIONER'S ORDER, WE GRANTED CERTIORARI. 

AFTER AN EXAMINATION OF THE RECORD WE ARE SATISFIED THAT THE FINDINGS
WERE AMPLY SUPPORTED WHETHER THE MEASURE BE "SUBSTANTIAL EVIDENCE" OR
"SUBSTANTIAL PROBATIVE EVIDENCE."  THE CHARGE OF UNFAIRNESS IN THE
HEARINGS IS, WE THINK, WHOLLY WITHOUT SUPPORT. 

SINCE THE NARRATION OF EVIDENCE AND DISCUSSION OF THE PROCEEDINGS
SUFFICIENTLY APPEAR IN THE DISTRICT COURT'S OPINION, REITERATION HERE
CAN SERVE NO GOOD PURPOSE EITHER FOR THE PARTIES OR FOR THE LAW. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THAT OF THE
DISTRICT COURT AFFIRMED.  IT IS SO ORDERED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON, WHOM MR. JUSTICE FRANKFURTER JOINS, DISSENTING. 

I AGREE THAT THE PRIVILEGE OF PRACTICING BEFORE THE PATENT OFFICE IS
ONE THAT MAY AND SHOULD BE WITHDRAWN FOR PROFESSIONAL MISCONDUCT.  IN
DEFENSE OF HIS PRIVILEGE IT ALSO IS TRUE THAT THE LAWYER MAY NOT DEMAND
THAT CONCLUSIVENESS OF PROOF OR INVOKE ALL OF THE PROTECTIONS ASSURED
TO AN ACCUSED BY THE CRIMINAL PROCESS.  BUT WHILE SOCIETY MAY EXPECT
THAT HIS JUDGES WILL SHOW HIM NO FAVOR BECAUSE HE HAS LIVED RESPECTABLY
FOR EIGHTY YEARS AND DEVOTED FIFTY-NINE OF THEM TO PRACTICE OF HIS
PROFESSION WITHOUT BLEMISH, AN ACCUSED LAWYER MAY EXPECT THAT HE WILL
NOT BE CONDEMNED OUT OF A CAPRICIOUS SELF-RIGHTEOUSNESS OR DENIED THE
ESSENTIALS OF A FAIR HEARING. 

THE COURT BELOW THOUGHT DORSEY HAD NOT BEEN FAIRLY JUDGED AND
INDIGNANTLY REVERSED HIS DISBARMENT.  DORSEY V. KINGSLAND, 84 U.S. APP.
D.C. 264, 173 F.2D 405.  ALL QUESTIONS OF FACT SEEM TO HAVE BEEN
RESOLVED AGAINST DORSEY BY HIS DEPARTMENTAL TRIERS, AND I SHALL NOT
HERE REVIEW ALL OF THOSE ISSUES, EVEN IF ON SOME OF THEM DORSEY WOULD
SEEM ENTITLED TO PREVAIL.  ACCEPTING THE FINDINGS AGAINST HIM AT THEIR
FULL FACE VALUE, I THINK THE DISBARMENT ORDER WAS PROPERLY SET ASIDE. 

BACK IN 1926 THE HARTFORD-EMPIRE CO. CONCEIVED AND EXECUTED A SCHEME
TO PREPARE AND PUBLISH, OVER THE SIGNATURE OF AN APPARENTLY
DISINTERESTED LABOR LEADER, AN ARTICLE TO BE PUBLISHED AND THEN USED IN
SUPPORT OF THE COMPANY'S PENDING PATENT APPLICATION.  SUCH A
DISSERTATION, ENTITLED, "INTRODUCTION OF AUTOMATIC GLASS WORKING
MACHINERY; HOW RECEIVED BY ORGANIZED LABOR," WAS PREPARED.  IT
PURPORTED TO BE AUTHORED BY ONE CLARKE, PRESIDENT OF A GLASSWORKERS'
UNION.  IT WAS PUBLISHED IN A TRADE JOURNAL AND THEN PRESENTED TO THE
PATENT OFFICE AS RECOGNITION BY A "RELUCTANT WITNESS" OF THE SUCCESS OF
THE DEVICE UNDER CONSIDERATION.  SEVERAL YEARS LATER, INVOLVED IN
LITIGATION TESTING THE VALIDITY OF ITS PATENT, HARTFORD-EMPIRE TOOK
STEPS TO SUPPRESS EVIDENCE OF THE REAL AUTHORSHIP OF THE CLARKE ESSAY. 
IT MADE A GIFT OF $8,000 TO CLARKE, WHO HAD TOLD INVESTIGATORS EMPLOYED
BY HARTFORD-EMPIRE'S ADVERSARY THAT HE HAD WRITTEN THE ARTICLE AND
WOULD SO TESTIFY IF CALLED UPON AS A WITNESS.  ULTIMATELY, THIS COURT
REVIEWED THE ACTIONS OF HARTFORD-EMPIRE AND HELD THAT THE SUM TOTAL OF
ACTS ATTRIBUTABLE TO IT CONSTITUTED A FRAUD ON THE PATENT OFFICE AND
THE FEDERAL COURTS.  HAZEL-ATLAS GLASS CO. V. HARTFORD-EMPIRE CO., 322
U.S. 238, REVERSING 137 F.2D 764.  SEE ALSO UNITED STATES V. HARTFORD
EMPIRE CO., 46 F.SUPP.  541. 

DORSEY WAS ONE OF COUNSEL FOR HARTFORD-EMPIRE IN THE 1926 PATENT
APPLICATION AND, SHORTLY FOLLOWING OUR DECISION IN HAZEL-ATLAS, SUPRA,
PROCEEDINGS TO SUSPEND OR EXCLUDE HIM FROM FURTHER PRACTICE BEFORE THE
PATENT OFFICE WERE COMMENCED UNDER 35 U.S.C. SEC. 11.  IDENTICAL BUT
SEPARATE PROCEEDINGS WERE INSTITUTED AGAINST THREE OTHER MEMBERS OF THE
PATENT BAR INVOLVED IN THE TRANSACTIONS.  ALL WERE DISBARRED.  ONLY THE
DORSEY CASE IS HERE. 

DORSEY WAS CHARGED WITH GROSS MISCONDUCT IN THAT, AS PARTICULARIZED
IN THE NOTICE WHICH INSTITUTED THE PROCEEDING, HE "  ...  PARTICIPATED
IN THE PREPARATION OF (THE CLARKE) ARTICLE AND/OR THE PRESENTATION
THEREOF TO THE UNITED STATES PATENT OFFICE DURING THE PROSECUTION OF
SAID PATENT APPLICATION KNOWING THAT SAID ARTICLE WAS NOT WRITTEN BY
SAID WILLIAM P. CLARKE, AND WITH THE PURPOSE OF DECEIVING THE PATENT
OFFICE AS TO THE AUTHORSHIP OF SAID ARTICLE AND INFLUENCING THE ACTION
OF THE PATENT OFFICE ON SAID APPLICATION  ...  " 

A VIEW OF THE FACTS LEAST FAVORABLE TO DORSEY INDICATES THAT HE
INSPECTED AND CRITICIZED A FEW DETAILS OF AN EARLY DRAFT OF THE CLARKE
ARTICLE AND THAT LATER, WITH KNOWLEDGE THAT IT HAD BEEN PREPARED BY A
HARTFORD-EMPIRE EMPLOYEE, HE SUBMITTED IT TO THE PATENT OFFICE AS BEING
WHAT ON ITS FACE IT PURPORTED TO BE.  THIS IS THE LONG AND THE SHORT OF
THE CASE AGAINST DORSEY.  THE CASE AGAINST HARTFORD-EMPIRE, HOWEVER,
INCLUDED MUCH IN WHICH DORSEY IS NOT SHOWN TO HAVE HAD EVEN A
CONSENTING PART.  IN TWO RESPECTS ONLY ARE HIS ACTIONS URGED TO BE
WRONGDOING:  FIRST, IN THAT HE DECEIVED THE PATENT OFFICE AS TO THE
REAL AUTHOR, AND, SECOND (NOT CHARGED IN THE NOTICE BUT ADVANCED HERE),
THAT DORSEY REPRESENTED IT AS THE WORK OF A "RELUCTANT WITNESS." 

WHILE IT IS NOT DECISIVE OF THE NARROW ISSUE OF DECEPTION PRESSED
AGAINST DORSEY, IT SHOULD BE NOTED AS SHOWING HOW NARROW THAT ISSUE
REALLY IS, THAT IT INCLUDES NO CLAIM THAT ANY STATEMENT IN THE CLARKE
ARTICLE IS FALSE OR MISLEADING IN ANY RESPECT WHATSOEVER.  IT STATED
FACTS TRUTHFULLY, FACTS WHICH A PATENT LAWYER WAS ENTITLED TO BRING TO
THE ATTENTION OF THE PATENT OFFICE IN ANY MANNER PERMITTED BY ITS
PRACTICE.  ONE MIGHT EXPECT THAT THE PATENT OFFICE WOULD HAVE REQUIRED
FACTS ON WHICH IT ISSUED A PATENT TO BE PROVED BY AFFIDAVITS WHOSE
TRUTHFULNESS IS ENCOURAGED, IF NOT ASSURED, BY SANCTIONS AGAINST
PERJURY; BUT IT WAS CONTENT TO ACCEPT UNSWORN PUBLICATIONS FOR ITS
PURPOSES.  THE WORST THAT CAN BE SAID OF DORSEY IS THAT HE TOOK
ADVANTAGE OF THIS LOOSE PRACTICE TO USE A TRADE JOURNAL ARTICLE AS
EVIDENCE, WITHOUT DISCLOSING THAT IT WAS GHOST-WRITTEN FOR THE
OSTENSIBLE AUTHOR. 

LET US SUPPOSE THE PATENT OFFICE HAD EXACTED MORE LAWYERLY STANDARDS
OF PROOF AND HAD REQUIRED SUCH INFORMATION TO BE LAID BEFORE IT IN
AFFIDAVIT FORM.  CLARKE, LET US SAY, WAS PREVAILED UPON TO MAKE A
DEPOSITION.  WOULD IT BE DECEIT IF THE LAWYER DRAFTED EVERY WORD OF THE
AFFIDAVIT, THOUGH IT PURPORTED TO BE CLARKE'S TESTIMONY?  I SUPPOSE
THAT THE PRACTICE IS ALMOST UNIVERSAL THAT THE LAWYER ASCERTAINS TO
WHAT FACTS THE WITNESS CAN TESTIFY AND PUTS THEM IN PRESENTABLE FORM
AND SUITABLE WORDS, AND THAT THE WITNESS ADOPTS THE DOCUMENT AS HIS
TESTIMONY, WITH ANY CORRECTION NECESSARY TO CONVEY HIS STORY.  NOTHING
ON THE FACE OF THE USUAL AFFIDAVIT DISCLOSES THE FACT THAT THE
COMPOSITION IS THAT OF THE ATTORNEY; ON THE CONTRARY, IT GENERALLY
RECITES THAT IT IS THE WITNESS WHO "DEPOSES AND SAYS  ...  "  IS A
DIFFERENT STANDARD TO BE APPLIED TO A TRADE JOURNAL ARTICLE INTENDED
AND ACCEPTED TO SERVE THE SAME END? 

I SHOULD SUPPOSE THAT, SO FAR AS THE LAW IS CONCERNED, ONE MAY AS
EFFECTIVELY FATHER STATEMENTS BY ADOPTION AS BY CONCEPTION AND THAT
SINCERELY SUBSCRIBING TO WHAT ANOTHER HAS WRITTEN FOR HIM DOES NOT
CONSTITUTE LEGAL DECEIT OR GROUNDS FOR DISBARMENT, IMPEACHMENT OR OTHER
PENALTY.  AND IN THIS CASE, NOT ONLY IS THERE NO CLAIM THAT THE CLARKE
ARTICLE CONTAINED ONE FALSE STATEMENT, BUT THERE IS NO DENIAL THAT,
WHOEVER WAS THE SCRIBE, CLARKE BELIEVED AND KNOWINGLY ADOPTED AS HIS
OWN EVERY WORD OF IT. 

I SHOULD NOT LIKE TO BE SECOND TO ANYONE ON THIS COURT IN CONDEMNING
THE CUSTOM OF PUTTING UP DECOY AUTHORS TO IMPRESS THE GUILELESS, A
CUSTOM WHICH AS THE COURT BELOW CRUELLY POINTED OUT FLOURISHES EVEN IN
OFFICIAL CIRCLES IN WASHINGTON.  NOR DO I CONTEND THAT DORSEY'S SPECIAL
ADAPTATION OF THE PREVAILING CUSTOM COMPORTS WITH THE HIGHEST CANDOR. 
GHOST-WRITING HAS DEBASED THE INTELLECTUAL CURRENCY IN CIRCULATION HERE
AND IS A TYPE OF COUNTERFEITING WHICH INVITES NO DEFENSE.  PERHAPS THIS
COURT RENDERS A PUBLIC SERVICE IN TREATING PHANTOM AUTHORS AND GHOST
WRITERS AS LEGAL FRAUDS AND DISGUISED AUTHORSHIP AS A DECEPTION.  BUT
HAS ANY MAN BEFORE DORSEY EVER BEEN DISCIPLINED OR EVEN REPRIMANDED FOR
IT?  AND WILL ANY BE HEREAFTER? 

IT IS ADDED, THOUGH AS SOMETHING OF AN AFTERTHOUGHT, THAT DORSEY IN
HIS BRIEF TO THE PATENT OFFICE CHARACTERIZED CLARKE AS A "RELUCTANT
WITNESS."  I HAD SUPPOSED THAT SUCH ADJECTIVES WERE IN THE NATURE OF
ARGUMENT OR, AT MOST, OF CONCLUSION RATHER THAN REPRESENTATION OR
WARRANTY.  THE ARSENAL OF EVERY ADVOCATE HOLDS TWO BUNDLES OF
ADJECTIVES FOR WITNESSES - SUCH ONES AS "RELUCTANT," "UNBIASED,"
"DISINTERESTED," AND "HONEST" ARE RESERVED FOR HIS OWN; OTHERS, SUCH AS
"PARTISAN," "EAGER," "INTERESTED," "HOSTILE," AND EVEN "PERJURED," FOR
THOSE OF HIS ADVERSARY.  I HAVE THE GREATEST DIFFICULTY BELIEVING THAT
A MISCHOICE AMONG THESE ADJECTIVES HAS DECEIVED ANYONE FIT TO DECIDE
FACTS, OR THAT IN ANY CASE OTHER THAN THIS IT WOULD SUBJECT THE
ADVOCATE TO DISBARMENT.  BUT IF WRONG IN THIS STANDARD, I SHOULD THINK
THE USE OF "RELUCTANT" AS APPLIED TO CLARKE WAS JUSTIFIED.  I SHOULD
NOT EXPECT A UNION PRESIDENT TO BE OTHER THAN RELUCTANT TO POINT OUT
THE ADVANTAGES OF AUTOMATIC MACHINERY WHICH TENDS TO THROW HIS
MEMBERSHIP OUT OF EMPLOYMENT.  AT LEAST I HOPE WE HAVE NOT COME TO THE
TIME WHEN TO URGE THIS INFERENCE IS EVEN A MAKEWEIGHT IN DISBARMENT
PROCEEDINGS. 

IF, HOWEVER, A LAWYER IS TO BE CALLED UPON TO BE THE FIRST EXAMPLE OF
CONDEMNATION FOR AN OFFENSE SO TENUOUS, VAGUE AND NOVEL, THE LEAST
COURTS SHOULD REQUIRE IS THAT THE CASE AGAINST HIM BE CLEARLY PROVED. 
I SHALL GIVE BUT TWO OF SEVERAL REASONS WHY I THINK THAT STANDARD WAS
NOT MET IN THIS CASE. 

FIRST, THE PATENT OFFICE COMMITTEE, CONVENED TO HEAR THE CHARGES
AGAINST DORSEY, APPROACHED ITS DUTY UPON THE PREMISE THAT THIS COURT'S
HAZEL-ATLAS DECISION ESTABLISHED NOT ONLY HARTFORD-EMPIRE'S GUILT BUT
ALSO DORSEY'S, UNLESS HE SHOULD CLEAR HIS NAME.  THE RECORDS FROM THAT
CASE AND FROM UNITED STATES V. HARTFORD-EMPIRE CO., SUPRA, NOT ONLY
WERE INTRODUCED AGAINST DORSEY, WHO WAS NEITHER A PARTY NOR OF COUNSEL
IN EITHER, BUT WERE THE SOLE EVIDENCE TO SUPPORT THE DIRECT CASE
AGAINST HIM.  THE COMMITTEE'S RECOMMENDATION WAS APPARENTLY BASED UPON
ITS CONCLUSION THAT HE FAILED IN THE IMPOSED TASK OF PROVING HIS
INNOCENCE.  I THINK THIS WAS ERROR OF A SERIOUS KIND.    IT SHOULD BE
REMEMBERED THAT OUR CONCLUSION IN THAT CASE WAS REACHED UPON THE TOTAL
EFFECT OF MANY EVENTS PARTICIPATED IN BY MANY PERSONS WHOSE ACTS WERE
ATTRIBUTABLE TO HARTFORD-EMPIRE AS THEIR PRINCIPAL.  A CONSIDERABLE
PART WAS NOT ATTRIBUTABLE TO DORSEY.  THE MOST IMPORTANT AND
PREJUDICIAL OF THESE CIRCUMSTANCES WHICH INCRIMINATE HARTFORD-EMPIRE,
BUT NOT DORSEY, IS INVOLVED IN ANOTHER ERROR, WHICH I THINK DEPRIVED
THE ACCUSED OF A FAIR TRIAL. 

I THINK THAT DORSEY SUFFERED PREJUDICE AGAIN FROM RECEIPT OF EVIDENCE
CONCERNING HARTFORD-EMPIRE'S LATER PAYMENT TO CLARKE AND THE RELIANCE
UPON THAT FACT TO FIND DORSEY GUILTY.  THIS PAYMENT WAS NOT MADE AS AN
INDUCEMENT TO SIGN THE ARTICLE AND WAS MADE LONG AFTER DORSEY'S
RELATIONSHIP TO THE CASE HAD CEASED.  THE GOVERNMENT FRANKLY CONCEDES
THAT THERE IS NO EVIDENCE IT WAS MADE WITH THE APPROVAL OR EVEN
KNOWLEDGE OF DORSEY.  THE DISTRICT COURT FOUND, AND THE COURT OF
APPEALS AFFIRMED ITS FINDING, THAT "THERE IS NOTHING IN THE EVIDENCE
THAT CONNECTS DORSEY WITH THE PAYMENT OF ANY MONEY TO CLARKE."  WE ARE
BOUND BY THESE CONCURRENT FINDINGS. 

NEVERTHELESS, EVIDENCE OF THIS PAYMENT WAS RECEIVED AGAINST DORSEY
AND WAS THROWN IN THE SCALES AGAINST HIM IN THE DECISION.  REFERRING TO
THE PAYMENT OF MONEY TO CLARKE, THE PATENT OFFICE COMMITTEE REPORT ON
WHICH DORSEY WAS DISBARRED SAYS: 

"NEARLY SIX YEARS ELAPSED AFTER THE ARTICLE WAS FILED IN THE PATENT
OFFICE BEFORE OTHER EVENTS, RELEVANT TO THE CONDUCT OF THESE
RESPONDENTS WITH RESPECT TO IT, OCCURRED.  THESE SUBSEQUENT EVENTS CAST
THEIR LIGHT BACKWARDLY ON THE ACTIVITIES OF THE PARTIES DURING THE TIME
OF PREPARATION AND FILING OF THE CLARKE ARTICLE, GIVING ADDED
ILLUMINATION WITH REGARD TO THE PURPOSES, UNDERSTANDINGS, AND
INTENTIONS OF RESPONDENTS AT THAT TIME." 

THUS IT IS CLEAR THAT HARTFORD-EMPIRE'S LATER CORRUPTION IN TRYING TO
SUPPRESS EVIDENCE, WHICH WE PROPERLY CONSIDERED AS A FACTOR IN DECIDING
ITS CASE, WAS THE DECISIVE FACTOR IN FINDING DORSEY GUILTY, THOUGH HE
ADMITTEDLY HAD NO PART IN IT.  WITHOUT THIS MISAPPLICATION OF EVIDENCE,
NOTHING IN THE RECORD EXPLAINS OR EXCUSES THE HARSH JUDGMENT OF
DISBARMENT.  EVEN THOUGH COURTS LEAN BACKWARD TO AVOID SUSPICION OF
PARTIALITY TO MEN OF OUR OWN PROFESSION, THEY SHOULD NOT FEAR TO
PROTECT A LAWYER AGAINST LOSS OF HIS RIGHT TO PRACTICE ON SUCH A RECORD
AS THIS. 
..END :














REILLY V. PINKUS, 338 U.S. 269 


NO. 31.  ARGUED OCTOBER 13, 1949.  - DECIDED NOVEMBER 14, 1949.  - 170
F.2D 786, AFFIRMED. 


1.  IN A FRAUD-ORDER PROCEEDING UNDER 39 U.S.C. SECS. 259, 732, IT WAS
SHOWN THAT RESPONDENT HAD MADE EXPANSIVE CLAIMS IN ADVERTISEMENTS
REGARDING THE EFFICACY AND SAFETY OF HIS FAT-REDUCING PLAN, WHICH
CONSISTED OF A DIET AND THE TAKING OF SMALL QUANTITIES OF GRANULATED
KELP CONTAINING IODINE.  TESTIMONY OF EXPERT WITNESSES, BASED UPON
THEIR GENERAL MEDICAL KNOWLEDGE, WAS SLIGHTLY CONFLICTING AS TO THE
VALUE OF IODINE FOR THIS PURPOSE; BUT THEY AGREED THAT THE RECOMMENDED
DIET MIGHT PROVE HARMFUL TO SOME PERSONS.  HELD:  THE EVIDENCE WAS
SUFFICIENT TO SUPPORT A FINDING BY THE POSTMASTER GENERAL THAT THE
EFFICACY OF RESPONDENT'S REDUCING PLAN WAS MISREPRESENTED IN HIS
ADVERTISING.  PP. 270-275. 

(A)  AMERICAN SCHOOL OF HEALING V. MCANNULTY, 187 U.S. 94, DOES NOT
BAR A FINDING OF FRAUD WHENEVER THERE IS THE LEAST CONFLICT OF OPINION
AS TO CURATIVE EFFECTS OF A REMEDY.  PP. 273-274. 

(B)  IF MADE WITH INTENT TO DECEIVE, MISREPRESENTATIONS SUCH AS WERE
MADE HERE FALL SQUARELY WITHIN THE TYPE WHICH IN LEACH V. CARLILE, 258
U.S. 138, WERE HELD TO JUSTIFY FINDINGS OF FRAUD.  PP. 274-275. 

2.  GOVERNMENT WITNESSES BASED THEIR EXPERT TESTIMONY IN PART ON
CERTAIN MEDICAL BOOKS, AND RESPONDENT WAS NOT PERMITTED TO CROSS
EXAMINE THEM ABOUT STATEMENTS CONTAINED IN OTHER MEDICAL BOOKS.  THE
PRESIDING OFFICER ADOPTED THE PROSECUTOR'S VIEW THAT GOOD FAITH WAS NOT
A DEFENSE.  THE POSTMASTER GENERAL FOUND THAT THE EFFICACY OF
RESPONDENT'S REDUCING PLAN WAS MISREPRESENTED IN HIS ADVERTISING AND
ISSUED A FRAUD ORDER.  HELD:  THE PRESENT FRAUD ORDER SHOULD NOT BE
ENFORCED; BUT THE PROCEEDINGS MAY BE REOPENED TO PERMIT ADDITIONAL
HEARINGS SHOULD THE POSTMASTER GENERAL CHOOSE TO DO SO.  PP. 275-277. 

(A)  IT WAS PREJUDICIAL ERROR NOT TO PERMIT RESPONDENT TO CROSS
EXAMINE THE GOVERNMENT'S WITNESSES AS TO STATEMENTS CONTAINED IN OTHER
MEDICAL BOOKS, EVEN THOUGH SOME OF THEM WERE MERELY MEDICAL
DICTIONARIES.  P. 275. 

(B)  THIS ERROR WAS NOT CURED BY HAVING THE FACT-FINDER EXAMINE THE
EXCLUDED MATERIAL SUBSEQUENTLY.  PP. 275-276. 

(C)  IN POSTOFFICE FRAUD CASES, PROOF OF FRAUDULENT PURPOSE IS
ESSENTIAL:  IT IS NOT SUFFICIENT TO PROVE MERELY THAT AN INCORRECT
STATEMENT WAS MADE.  P. 276. 

(D)  ONE AGAINST WHOM SERIOUS CHARGES OF FRAUD ARE MADE MUST BE GIVEN
A REASONABLE OPPORTUNITY TO CROSS-EXAMINE WITNESSES ON THE VITAL ISSUE
OF HIS PURPOSE TO DECEIVE.  P. 276. 

(E)  THE STRIKINGLY DIFFERENT CONSEQUENCES OF CEASE-AND-DESIST ORDERS
ISSUED BY THE FEDERAL TRADE COMMISSION AND FRAUD ORDERS ISSUED BY THE
POSTMASTER GENERAL EMPHASIZE THE IMPORTANCE OF LIMITING THE LATTER TO
INSTANCES WHERE ACTUAL FRAUD IS CLEARLY PROVED.  P. 277. 

REILLY, POSTMASTER, V. PINKUS, TRADING AS AMERICAN HEALTH AIDS CO.,
ALSO KNOWN AS ENERGY FOOD CENTER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

A DISTRICT COURT ENJOINED ENFORCEMENT OF A FRAUD ORDER ISSUED BY THE
POSTMASTER GENERAL.  61 F.SUPP.  610; 71 F.SUPP.  993.  THE COURT OF
APPEALS AFFIRMED.  170 F.2D 786.  THIS COURT GRANTED CERTIORARI.  337
U.S. 906.  AFFIRMED, P. 277. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

FEDERAL STATUTES HAVE LONG AUTHORIZED THE POSTMASTER GENERAL TO
FORBID DELIVERY OF MAIL AND PAYMENT OF MONEY ORDERS TO "ANY PERSON OR
COMPANY" FOUND, "UPON EVIDENCE SATISFACTORY" TO HIM, TO BE "CONDUCTING
ANY ...  SCHEME OR DEVICE FOR OBTAINING MONEY  ...  THROUGH THE MAILS
BY MEANS OF FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS, OR PROMISES
...  "  FN1  FOLLOWING A HEARING THE POSTMASTER GENERAL ISSUED SUCH AN
ORDER RESTRICTING RESPONDENT'S USE OF THE MAILS.  FN2 

THE REPRESENTATIONS ON WHICH THE ORDER IS BASED RELATE TO
RESPONDENT'S ANTI-FAT TREATMENT, NATIONALLY ADVERTISED UNDER THE NAME
OF "DR. PHILLIPS' KELP-I-DINE REDUCING PLAN."  "KELP-I-DINE" IS A NAME
USED BY RESPONDENT FOR GRANULATED KELP, A NATURAL SEAWEED PRODUCT
CONTAINING IODINE.  THE REDUCING PLAN IS TWOFOLD:  IT REQUIRES USERS TO
TAKE ONE-HALF TEASPOONFUL OF "KELP-I-DINE" PER DAY, AND SUGGESTS
FOLLOWING A RECOMMENDED DAILY DIET WHICH ACCOMPANIES THE VIALS OF
KELP. 

RESPONDENT'S ADVERTISEMENTS MADE EXPANSIVE CLAIMS FOR ITS PLAN.  THEY
REPRESENTED THAT PERSONS SUFFERING FROM OBESITY COULD "EAT PLENTY" AND
YET REDUCE 3 TO 5 POUNDS IN A WEEK SURELY AND EASILY, WITHOUT "TORTUOUS
DIET" AND WITHOUT FEELING HUNGRY.  UNHAPPY PEOPLE EAGER TO REDUCE BUT
ALSO EAGER TO EAT PLENTY WERE REPEATEDLY REASSURED WITH ALLURING BUT
SUBTLY QUALIFIED REPRESENTATIONS SUCH AS THESE:  "REMEMBER WITH THE
KELPIDINE PLAN, YOU DON'T CUT OUT ICE CREAM, CAKE, CANDY, OR ANY OTHER
THINGS YOU LIKE TO EAT.  YOU JUST CUT DOWN ON THEM."  THE ALLEGED
SAFETY OF THE REMEDY AND EXTRAORDINARY EFFICACY OF KELP WERE EMPHASIZED
IN ADVERTISEMENTS STATING THAT IT "MAKES NO DIFFERENCE IF YOU ARE 16 OR
60, OR IF YOU HAVE DIABETES, RHEUMATISM OR ANY OTHER AILMENT. 
KELPIDINE IS ALWAYS SAFE AND DOCTORS APPROVE THE KELPIDINE PLAN.  YOU
SIMPLY TAKE A HALF TEASPOON OF KELPIDINE ONCE EACH DAY AND EAT THREE
REGULAR SENSIBLE MEALS.  KELPIDINE DECREASES YOUR APPETITE." 

TWO DOCTORS WITH WIDE GENERAL KNOWLEDGE IN THE FIELD OF DIETETICS AND
TREATMENT FOR OBESITY WERE CALLED BY THE GOVERNMENT IN THE FRAUD
HEARING.  THEY TESTIFIED THAT IODINE, TO WHICH RESPONDENT CHIEFLY
ATTRIBUTED THE FAT-REDUCING POWERS OF KELP, IS VALUELESS AS AN ANTI
FAT; THAT KELP WOULD NOT REDUCE HUNGER; THAT THE SUGGESTED DIET WAS TOO
DRASTIC TO BE SAFE FOR USE WITHOUT MEDICAL SUPERVISION, PARTICULARLY
WHERE USERS SUFFERED FROM CHRONIC DISEASES SUCH AS DIABETES AND HEART
TROUBLE.  THE ONE PHYSICIAN CALLED BY RESPONDENT TESTIFIED THAT IODINE
WAS USED BY PHYSICIANS AS A WEIGHT REDUCER, AND EXPRESSED HIS JUDGMENT
THAT IT DID HAVE VALUE FOR SUCH USE.  EVEN HE, HOWEVER, CONCEDED THAT
THE DAILY DOSAGE OF IODINE TO REDUCE WEIGHT WOULD BE FIFTY TO SIXTY
TIMES MORE THAN THE IODINE IN RESPONDENT'S DAILY DOSAGE OF KELP.  THE
RESPONDENT'S WITNESS ALSO ADMITTED THAT THE RECOMMENDED DIET WAS
"RIGID," AND MIGHT PROVE HARMFUL TO PERSONS SUFFERING FROM
TUBERCULOSIS, ANEMIA, OR HEART DISEASE. 

THE FINDINGS OF THE POSTMASTER GENERAL WERE THAT KELP IS VALUELESS AS
A WEIGHT REDUCER AND THAT WHATEVER EFFICACY THERE WAS IN THE REMEDY LAY
IN THE DIET RECOMMENDATIONS.  HE ALSO FOUND THAT THE DIET WAS NEITHER
UNIFORMLY SAFE NOR HARMLESS AND MIGHT BE PARTICULARLY DANGEROUS FOR
PERSONS AFFLICTED WITH HEART AND KIDNEY TROUBLES; THAT THE DIET COULD
NOT, AS REPRESENTED, BE PURSUED IN EASE AND COMFORT, WITHOUT HUNGER,
WHILE EATING THE THINGS RESPONDENT HAD LED PEOPLE TO BELIEVE THEY
COULD.  ON THESE FINDINGS THE FRAUD ORDER WAS ENTERED. 

THE DISTRICT COURT GRANTED AN INJUNCTION AGAINST ENFORCEMENT OF THE
FRAUD ORDER ON THE GROUND THAT THE ORDER WAS UNSUPPORTED BY FACTUAL
EVIDENCE.  FN3  ASSERTING THAT THERE WAS "NO EXACT STANDARD OF ABSOLUTE
TRUTH" AGAINST WHICH RESPONDENT'S ADVERTISEMENTS COULD BE MEASURED, THE
COURT HELD THAT THE TESTIMONY OF THE TWO DOCTORS ON WHICH THE
GOVERNMENT'S CASE RESTED WAS REDUCED BY THE CONFLICTING TESTIMONY OF
RESPONDENT'S WITNESS TO THE STATUS OF MERE OPINION.  AS SUCH, THE
EVIDENCE WAS HELD INSUFFICIENT UNDER THE RULE LAID DOWN BY THIS COURT
IN AMERICAN SCHOOL OF HEALING V. MCANNULTY, 187 U.S. 94.  THE COURT OF
APPEALS AFFIRMED ON SUBSTANTIALLY THE SAME GROUND.  FN4  BOTH COURTS
DISTINGUISHED LEACH V. CARLILE, 258 U.S. 138, WHERE WE HELD THAT A
DIFFERENCE OF OPINION AS TO WHETHER A PRODUCT HAD ANY VALUE AT ALL DID
NOT BAR A FRAUD ORDER BASED ON CLAIMS OF FAR GREATER CURATIVE POWERS
THAN THE PRODUCT COULD ACTUALLY HAVE.  IMPORTANT QUESTIONS CONCERNING
THE SCOPE OF THE MCANNULTY CASE AND THE SUFFICIENCY OF EVIDENCE TO
SUPPORT POSTOFFICE FRAUD ORDERS PROMPTED US TO GRANT CERTIORARI. 

FIRST.  IT IS CONTENDED HERE, AS BOTH COURTS BELOW HELD, THAT THE
FINDINGS OF THE POSTMASTER GENERAL MUST BE SET ASIDE UNDER THE RULE OF
THE MCANNULTY CASE.  THERE THE POSTMASTER GENERAL HAD FORBIDDEN USE OF
THE MAILS UPON FINDING AS A FACT THAT PETITIONER WAS GUILTY OF
FALSEHOOD AND FRAUD IN OBTAINING MONEY BY REPRESENTATIONS BASED ON
CLAIMS THAT THE "MIND OF THE HUMAN RACE IS LARGELY RESPONSIBLE FOR ITS
ILLS,  ...  AND THAT THE HUMAN RACE DOES POSSESS THE INNATE POWER,
THROUGH PROPER EXERCISE OF THE FACULTY OF THE BRAIN AND MIND, TO
LARGELY CONTROL AND REMEDY THE ILLS THAT HUMANITY IS HEIR TO  ...  "
THIS COURT SET ASIDE THE FRAUD ORDER, POINTING OUT THAT THERE WERE TWO
WIDELY HELD SCHOOLS OF OPINION AS TO WHETHER THE MIND COULD AFFECT
BODILY DISEASES, AND THAT SCIENTIFIC KNOWLEDGE HAD NOT ADVANCED TO THE
POINT WHERE AN ACTUAL INTENT TO DECEIVE COULD BE ATTRIBUTED TO ONE WHO
ASSERTED EITHER OPINION.  THUS THERE WAS "NO EXACT STANDARD OF ABSOLUTE
TRUTH BY WHICH TO PROVE THE ASSERTION FALSE AND A FRAUD."  AT BEST,
TESTIMONY EITHER WAY WAS HELD TO BE NO MORE THAN "OPINION" IN A FIELD
WHERE IMPERFECT KNOWLEDGE MADE PROOF "AS OF AN ORDINARY FACT"
IMPOSSIBLE. 

RESPONDENT APPEARS TO ARGUE THAT THE MCANNULTY CASE BARS A FINDING OF
FRAUD WHENEVER THERE IS THE LEAST CONFLICT OF OPINION AS TO CURATIVE
EFFECTS OF A REMEDY.  THE CONTENTION SEEMS TO BE THAT EVEN THE
TESTIMONY OF THE MOST EXPERIENCED MEDICAL EXPERTS CAN NEVER RISE ABOVE
A MERE "OPINION" UNLESS THE EXPERT HAS MADE ACTUAL TESTS OF THE DRUG TO
DETERMINE ITS EFFECTS IN RELATION TO THE PARTICULAR REPRESENTATIONS
ALLEGED TO BE FALSE.  THE MCANNULTY HOLDING DID NOT GO SO FAR.  WE DO
NOT UNDERSTAND OR ACCEPT IT AS PRESCRIBING AN INEXORABLE RULE THAT
AUTOMATICALLY BARS RELIANCE OF THE FACT-FINDING TRIBUNAL UPON INFORMED
MEDICAL JUDGMENT EVERY TIME MEDICAL WITNESSES CAN BE PRODUCED WHO
BLINDLY ADHERE TO A CURATIVE TECHNIQUE THOROUGHLY DISCREDITED BY
RELIABLE SCIENTIFIC EXPERIENCES.  BUT WE DO ACCEPT THE MCANNULTY
DECISION AS A WHOLESOME LIMITATION UPON FINDINGS OF FRAUD UNDER THE
MAIL STATUTES WHEN THE CHARGES CONCERN MEDICAL PRACTICES IN FIELDS
WHERE KNOWLEDGE HAS NOT YET BEEN CRYSTALLIZED IN THE CRUCIBLE OF
EXPERIENCE.  FOR IN THE SCIENCE OF MEDICINE, AS IN OTHER SCIENCES,
EXPERIMENTATION IS THE SPUR OF PROGRESS.  IT WOULD AMOUNT TO
CONDEMNATION OF NEW IDEAS WITHOUT A TRIAL TO GIVE THE POSTMASTER
GENERAL POWER TO CONDEMN NEW IDEAS AS FRAUDULENT SOLELY BECAUSE SOME
CLING TO TRADITIONAL OPINIONS WITH UNQUESTIONING TENACITY. 

IN THIS CASE THERE IS CONFLICT, THOUGH SLIGHT, AS TO WHETHER KELP OR
IODINE IS VALUELESS AS A WEIGHT REDUCER.  BUT EVEN IF WE ASSUME THAT
MEDICAL OPINION IS YET IN A STATE OF FLUX ON THIS QUESTION, WE THINK
THAT THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE FINDINGS THAT THE
EFFICACY OF THE "REDUCING PLAN" AS A WHOLE WAS MISREPRESENTED IN
RESPONDENT'S ADVERTISING.  AND WE THINK THOSE MISREPRESENTATIONS WENT
BEYOND PERMISSIBLE "PUFFING" OF A SELLER'S WARES; THEY WERE MATERIAL
REPRESENTATIONS ON WHICH CREDULOUS PERSONS, EAGER TO REDUCE, WERE
ENTITLED TO RELY.  DESPITE SUBTLE QUALIFYING PHRASES IT IS DIFFICULT TO
READ THESE ADVERTISEMENTS AS A WHOLE WITHOUT RECEIVING THE IMPRESSION
THAT, CONTRARY TO FACTS JUSTIFIABLY FOUND BY THE POSTMASTER GENERAL,
KELP IS A SURE AND DRASTIC WEIGHT REDUCER; THAT A USER CAN REDUCE
WITHOUT UNCOMFORTABLY RESTRICTING HIS USUAL AMPLE DIET OF FATTENING
FOODS; THAT THE TREATMENT IS ABSOLUTELY SAFE AND HARMLESS TO PEOPLE OF
ALL AGES, TO THE ILL AND THE WELL.  SEE DONALDSON V. READ MAGAZINE, 333
U.S. 178, 188-189.  THESE REPRESENTATIONS, IF MADE WITH INTENT TO
DECEIVE, FALL SQUARELY WITHIN THE TYPE WHICH IN LEACH V. CARLILE, 258
U.S. 138, WERE HELD TO JUSTIFY FINDINGS OF FRAUD. 

SECOND.  NEVERTHELESS WE ARE CONSTRAINED TO HOLD THAT THE PRESENT
FRAUD ORDER SHOULD NOT BE ENFORCED.  IT HAS BEEN POINTED OUT THAT THE
DOCTORS' EXPERT EVIDENCE RESTED ON THEIR GENERAL PROFESSIONAL
KNOWLEDGE.  TO SOME EXTENT THIS KNOWLEDGE WAS ACQUIRED FROM MEDICAL
TEXT BOOKS AND PUBLICATIONS, ON WHICH THESE EXPERTS PLACED RELIANCE. 
IN CROSS-EXAMINATION RESPONDENT SOUGHT TO QUESTION THESE WITNESSES
CONCERNING STATEMENTS IN OTHER MEDICAL BOOKS, SOME OF WHICH AT LEAST
WERE SHOWN TO BE RESPECTABLE AUTHORITIES.  THE QUESTIONS WERE NOT
PERMITTED.  WE THINK THIS WAS AN UNDUE RESTRICTION ON THE RIGHT TO
CROSS-EXAMINE.  IT CERTAINLY IS ILLOGICAL, IF NOT ACTUALLY UNFAIR, TO
PERMIT WITNESSES TO GIVE EXPERT OPINIONS BASED ON BOOK KNOWLEDGE, AND
THEN DEPRIVE THE PARTY CHALLENGING SUCH EVIDENCE OF ALL OPPORTUNITY TO
INTERROGATE THEM ABOUT DIVERGENT OPINIONS EXPRESSED IN OTHER REPUTABLE
BOOKS. 

PETITIONER SEEKS TO JUSTIFY EXCLUSION OF CROSS-EXAMINATION BASED ON
SOME OF THESE BOOKS BY POINTING OUT THAT THEY WERE MERELY MEDICAL
DICTIONARIES.  GOVERNMENT EXPERTS TESTIFIED THEY WOULD NOT CONSULT THE
DICTIONARIES TO ASCERTAIN THE EFFICACY OF A REMEDY, ALTHOUGH THEY KEPT
AND USED THEM FOR OTHER PURPOSES.  BUT THE BOOKS DID ASSERT THE USE OF
KELP AS A FAT REDUCER, AND TO SOME EXTENT THIS TENDED TO REFUTE
TESTIMONY BY GOVERNMENT EXPERTS THAT NO REPUTABLE PHYSICIANS WOULD
ACCEPT KELP OR IODINE AS A WEIGHT REDUCER. 

IT IS ALSO CONTENDED THAT THE ERROR IN RESTRICTING CROSS-EXAMINATION
WAS HARMLESS HERE BECAUSE THE MEMORANDUM OF THE FACT-FINDING OFFICIAL
INDICATED THAT HE HAD READ THE EXCLUDED MATERIALS AND WOULD HAVE MADE
THE SAME ADVERSE FINDINGS HAD THE MATERIALS BEEN HELD ADMISSIBLE.  BUT
THE OBJECT OF USING THE BOOKS ON CROSS-EXAMINATION WAS TO TEST THE
EXPERT'S TESTIMONY BY HAVING HIM REFER TO AND COMMENT UPON THEIR
CONTENTS.  RESPONDENT WAS DEPRIVED OF THIS OPPORTUNITY.  THE ERROR OF
THIS DEPRIVATION COULD NOT BE CURED BY HAVING THE FACT-FINDER
SUBSEQUENTLY EXAMINE THE MATERIAL. 

MOREOVER, THE ISSUES IN POSTOFFICE FRAUD CASES MAKE SUCH CROSS
EXAMINATION PECULIARLY APPROPRIATE.  PROOF OF FRAUDULENT PURPOSES IS
ESSENTIAL - AN "ACTUAL INTENT TO DECEIVE."  SEE SEVEN CASES V. UNITED
STATES, 239 U.S. 510, 517.  CONSEQUENTLY FRAUD UNDER THE MAIL STATUTES
IS NOT ESTABLISHED MERELY BY PROVING THAT AN INCORRECT STATEMENT WAS
MADE.  AN INTENT TO DECEIVE MIGHT BE INFERRED FROM THE UNIVERSALITY OF
SCIENTIFIC BELIEF THAT ADVERTISING REPRESENTATIONS ARE WHOLLY
UNSUPPORTABLE; CONVERSELY, THE LIKELIHOOD OF SUCH AN INFERENCE MIGHT BE
LESSENED SHOULD CROSS-EXAMINATION CAUSE A WITNESS TO ADMIT THAT THE
SCIENTIFIC BELIEF WAS LESS UNIVERSAL THAN HE HAD FIRST TESTIFIED. 

THE POWER TO REFUSE ENFORCEMENT OF ORDERS FOR ERROR IN REGARD TO
EVIDENCE SHOULD BE SPARINGLY EXERCISED.  A LARGE AMOUNT OF DISCRETION
IN THE CONDUCT OF A HEARING IS NECESSARILY REPOSED IN AN ADMINISTRATIVE
AGENCY.  AND WHAT WE HAVE SAID IS NOT TO BE TAKEN AS REMOVING THIS
DISCRETION OR AS A COMPULSORY OPENING OF THE GATES FOR FLOODS OF
MEDICAL VOLUMES, EVEN WHERE SHOWN TO BE AUTHORITATIVE.  BUT IN THIS
KIND OF CASE AS IN OTHERS, ONE AGAINST WHOM SERIOUS CHARGES OF FRAUD
ARE MADE MUST BE GIVEN A REASONABLE OPPORTUNITY TO CROSS-EXAMINE
WITNESSES ON THE VITAL ISSUE OF HIS PURPOSE TO DECEIVE.  AND IN THIS
CASE ANY HOLDING OF HARMLESS ERROR IS PRECLUDED BY THE FACT THAT THE
ASSISTANT SOLICITOR PRESIDING AT THE HEARINGS ADOPTED THE PROSECUTOR'S
VIEW THAT RESPONDENT WAS TO BE BARRED FROM USING THE MAILS "REGARDLESS
OF THE QUESTION OF GOOD FAITH, EVEN IF THE RESPONDENT BELIEVED IN ALL
OF HIS REPRESENTATIONS  ...  IF THEY WERE FALSE AS A MATTER OF FACT." 

IT IS NOT AMISS TO POINT OUT THAT THE FEDERAL TRADE COMMISSION DOES
HAVE AUTHORITY TO ISSUE CEASE-AND-DESIST ORDERS IN CASES LIKE THIS
WITHOUT FINDINGS OF FRAUD.  15 U.S.C. SEC. 45(A), (B); FEDERAL TRADE
COMM'N V. ALGOMA CO., 291 U.S. 67, 81.  BUT THAT REMEDY DOES NOT
APPROACH THE SEVERITY OF A MAIL FRAUD ORDER.  IN FEDERAL TRADE COMM'N
V. RALADAM CO., 316 U.S. 149, FOR INSTANCE, A BUSINESS ADVERTISING ITS
ANTI-FAT PRODUCT WITH EXTRAVAGANT STATEMENTS SIMILAR IN MANY RESPECTS
TO THOSE OF RESPONDENT HERE WAS ORDERED TO CEASE AND DESIST FROM MAKING
SUCH STATEMENTS.  EXCEPT FOR THIS, THE BUSINESS WAS LEFT FREE TO SELL
ITS PRODUCT AS BEFORE.  UNLIKE THE POSTMASTER GENERAL, THE FEDERAL
TRADE COMMISSION CANNOT BAR AN OFFENDER FROM USING THE MAILS, AN ORDER
WHICH COULD WHOLLY DESTROY A BUSINESS.  SEE BRANDEIS, J., DISSENTING IN
MILWAUKEE PUB. CO. V. BURLESON, 255 U.S. 407, 417 ET SEQ. THE
STRIKINGLY DIFFERENT CONSEQUENCES OF THE ORDERS ISSUED BY THE TWO
AGENCIES ON THE BASIS OF ANALOGOUS MISREPRESENTATIONS EMPHASIZE THE
IMPORTANCE OF LIMITING POSTOFFICE DEPARTMENT ORDERS TO INSTANCES WHERE
ACTUAL FRAUD IS CLEARLY PROVED.    THE JUDGMENT OF THE COURT OF APPEALS
IS AFFIRMED, WITHOUT PREJUDICE TO A REOPENING OF THE PROCEEDINGS
AGAINST RESPONDENT TO PERMIT ADDITIONAL HEARINGS SHOULD THE POSTMASTER
GENERAL CHOOSE TO DO SO.  IT IS SO ORDERED.    FN1  R.S. 3929, AS
AMENDED, 39 U.S.C. SEC. 259; R.S. 4041, AS AMENDED, 39 U.S.C. SEC.
732. 

FN2  THE ORDER DID NOT FORBID DELIVERY OF MAIL TO RESPONDENT PINKUS
INDIVIDUALLY.  IT DID FORBID DELIVERY TO TRADE NAMES USED BY RESPONDENT
PINKUS, "AMERICAN HEALTH AIDS COMPANY AND ENERGY FOOD CENTER, AND THEIR
OFFICERS AND AGENTS AS SUCH  ...  " 

FN3  71 F.SUPP.  993.  SEE ALSO 61 F.SUPP.  610. 

FN4  170 F.2D 786. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















OAKLEY V. LOUISVILLE & N.R. CO., 338 U.S. 278 


ARGUED OCTOBER 17-18, 1949.  - DECIDED NOVEMBER 14, 1949.  - 170 F.2D
1008 - 171 F.2D 128, REVERSED. 


1.  UNDER SEC. 8(C) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940,
THE EXPIRATION OF ONE YEAR OF REEMPLOYMENT OF A VETERAN BY HIS
PRESERVICE EMPLOYER DOES NOT TERMINATE THE VETERAN'S RIGHT TO THE
SENIORITY TO WHICH HE IS ENTITLED BY VIRTUE OF THE ACT'S TREATMENT OF
HIM AS THOUGH HE HAD REMAINED CONTINUOUSLY IN HIS CIVILIAN EMPLOYMENT. 
FISHGOLD V. SULLIVAN CORP., 328 U.S. 275; TRAILMOBILE CO. V. WHIRLS,
331 U.S. 40, DISTINGUISHED.  PP. 279-285. 

2.  A UNITED STATES DISTRICT COURT COULD ENTERTAIN A COMPLAINT FILED
BY A VETERAN TO ENFORCE HIS RIGHT TO SUCH SENIORITY, EVEN THOUGH THE
COMPLAINT WAS NOT FILED UNTIL NEARLY THREE MONTHS AFTER THE EXPIRATION
OF SUCH YEAR OF REEMPLOYMENT.  PP. 284-285. 

OAKLEY V. LOUISVILLE & NASHVILLE RAILROAD CO. ET AL. 

NO. 28.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT* . 

*TOGETHER WITH NO. 29, HAYNES V. CINCINNATI, NEW ORLEANS & TEXAS
PACIFIC RAILWAY CO. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

THE DISTRICT COURT DISMISSED TWO ACTIONS BROUGHT BY VETERANS UNDER
SEC. 8(E) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO ENFORCE
THEIR RIGHTS TO SENIORITY UNDER SEC. 8.  THE COURT OF APPEALS
AFFIRMED.  170 F.2D 1008; 171 F.2D 128.  THIS COURT GRANTED
CERTIORARI.  336 U.S. 943.  REVERSED AND REMANDED, P. 285. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

IN BOTH NO. 28 AND NO. 29, THE ISSUE IS WHETHER, UNDER THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940,  FN1  ONE YEAR OF REEMPLOYMENT OF A
VETERAN BY HIS PRESERVICE EMPLOYER TERMINATED THAT VETERAN'S RIGHT TO
THE SENIORITY TO WHICH HE WAS ENTITLED BY VIRTUE OF THAT ACT'S
TREATMENT OF HIM AS THOUGH HE HAD REMAINED CONTINUOUSLY IN HIS CIVILIAN
EMPLOYMENT.  FOR THE REASONS HEREINAFTER STATED, AND PURSUANT TO OUR
PREVIOUS DECISIONS, OUR ANSWER IS "NO."  IN NO. 29, THERE IS THE
FURTHER QUESTION WHETHER, AFTER THE EXPIRATION OF SUCH YEAR, A UNITED
STATES DISTRICT COURT COULD ENTERTAIN A COMPLAINT FILED BY THE VETERAN
TO ENFORCE HIS RIGHT TO SUCH SENIORITY.  OUR ANSWER IS "YES." 

IN EACH CASE, A VETERAN SOUGHT, IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY, A DECLARATORY JUDGMENT AND AN
ORDER RESTORING HIM TO THE SENIORITY WHICH HE CLAIMED HE WOULD HAVE HAD
IF HE HAD REMAINED CONTINUOUSLY IN HIS CIVILIAN EMPLOYMENT.  IN NO. 28,
OAKLEY, THE PETITIONER, ALLEGED THAT WHEN HE WAS INDUCTED INTO THE
ARMED FORCES ON MAY 7, 1944, HE WAS EMPLOYED AS A LOCOMOTIVE MACHINIST
AT LOYALL, KENTUCKY, BY THE RESPONDENT, LOUISVILLE & NASHVILLE RAILROAD
COMPANY; THAT, ON MAY 22, 1946, HE WAS HONORABLY DISCHARGED FROM THE
ARMED FORCES; THAT, ON JULY 17, 1946, HE WAS REEMPLOYED BY THE
RESPONDENT AS A LOCOMOTIVE MACHINIST WITH SENIORITY FROM THAT DATE;
THAT, ON JULY 1, 1945, WHILE HE WAS WITH THE ARMED FORCES, THE
RESPONDENT'S LOYALL SHOP WAS TRANSFERRED TO CORBIN, KENTUCKY; "THAT HAD
HE NOT BEEN IN THE ARMED FORCES HE WOULD HAVE BEEN TRANSFERRED TO THE
CORBIN SHOP WITH SENIORITY FROM JULY 1, 1945,  ...  "; AND THAT,
BECAUSE OF THE RESPONDENT'S FAILURE TO CREDIT HIM WITH SENIORITY FROM
THE EARLIER DATE, HE HAS BEEN SUBJECTED TO CERTAIN DISADVANTAGES IN
WORKING HOURS AND TO AN INCREASED POSSIBILITY OF BEING LAID OFF FROM
HIS EMPLOYMENT.  HE FILED HIS COMPLAINT, APRIL 14, 1947, UNDER SEC.
8(E) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 891,
AS REENACTED, 60 STAT. 341, 50 U.S.C. APP. SEC. 308(E).  THE COURT, ON
ITS OWN MOTION, ASSIGNED THE CASE FOR ARGUMENT "UPON THE QUESTION
WHETHER, UNDER THE OPINION OF THE SUPREME COURT IN THE TRAILMOBILE
COMPANY, ET AL., V. WHIRLS (NO. 85, APRIL 14, 1947), THE CAUSE HAS BEEN
RENDERED MOOT BY THE EXPIRATION OF THE STATUTORY YEAR TO WHICH SECTION
8(C) OF THE SELECTIVE TRAINING AND SERVICE ACT LIMITED PLAINTIFF'S
RIGHT TO ANY SPECIAL OR PREFERENTIAL STANDING IN RESPECT TO RESTORED
SENIORITY."  THEREUPON, THE COLLECTIVE BARGAINING AGENT OF THE
MACHINIST EMPLOYEES OF THE RESPONDENT, WHICH HAD INTERVENED AS A
DEFENDANT, MOVED TO DISMISS THE CAUSE ON THE GROUND THAT MORE THAN ONE
YEAR HAD ELAPSED SINCE THE DATE OF THE PETITIONER'S RESTORATION TO HIS
EMPLOYMENT.  THIS MOTION IS HERE CONSIDERED UPON THE BASIS OF THE FACTS
PLEADED IN THE COMPLAINT.  FN2 

IN NO. 29, HAYNES, THE PETITIONER, ALLEGED THAT, WHEN HE ENLISTED IN
THE ARMED FORCES ON FEBRUARY 1, 1942, HE WAS EMPLOYED AS A MACHINIST
HELPER AT SOMERSET, KENTUCKY, BY THE RESPONDENT, CINCINNATI, NEW
ORLEANS AND TEXAS PACIFIC RAILWAY COMPANY (ORIGINALLY SUED AS THE
SOUTHERN RAILWAY SYSTEM); THAT, ON OCTOBER 31, 1945, HE WAS HONORABLY
DISCHARGED FROM THE ARMED FORCES; THAT, ON NOVEMBER 16, 1945, HE WAS
REEMPLOYED BY THE RESPONDENT AS A MACHINIST HELPER, WITH SENIORITY FROM
THAT DATE; "THAT DURING HIS SERVICE IN THE ARMED FORCES THE DEFENDANT
COMPANY PROMOTED SIX HELPER MACHINISTS TO HELPER APPRENTICES, AND THAT
THESE SIX MEN WERE JUNIOR IN SENIORITY TO HIMSELF, AND THAT HAD HE NOT
ENTERED THE ARMED FORCES AS ABOVE MENTIONED HE WOULD HAVE BEEN PROMOTED
TO HELPER APPRENTICE AND WOULD HAVE BEEN GIVEN THE PAY AS SUCH,  ...";
AND THAT SUCH RATE OF PAY EXCEEDED THAT OF THE PETITIONER DURING HIS
REEMPLOYMENT.  HE FILED HIS COMPLAINT, FEBRUARY 14, 1947, ASKING FOR
RESTORATION TO HIS CLAIMED STATUS AND FOR THE ADDITIONAL COMPENSATION
TO WHICH THAT STATUS WOULD HAVE ENTITLED HIM.  THE RESPONDENT ANSWERED,
BUT CERTAIN INTERVENING DEFENDANTS, FOLLOWING A PROCEDURE SIMILAR TO
THAT IN NO. 28, FILED A MOTION TO DISMISS THE CAUSE FOR THE REASONS
THERE STATED. 

THE DISTRICT COURT HEARD THE MOTIONS TOGETHER AND DISMISSED BOTH
ACTIONS.  FN3  THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED. 
170 F.2D 1008; 171 F.2D 128.  WE GRANTED CERTIORARI, 336 U.S. 943,
BECAUSE OF THE CLOSE RELATION OF THESE DISMISSALS TO OUR DECISIONS IN
FISHGOLD V. SULLIVAN CORP., 328 U.S. 275, AND TRAILMOBILE CO. V.
WHIRLS, 331 U.S. 40. 

THE COURT BELOW RECOGNIZED THAT SEC. 8(C)  FN4  GRANTED TO THE
RESPECTIVE VETERANS SPECIAL STATUTORY PROTECTION AGAINST DISCHARGE
WITHOUT CAUSE AND AGAINST LOSS OF CERTAIN BENEFITS DURING THE FIRST
YEAR OF THEIR REEMPLOYMENT.  THAT COURT, HOWEVER, CONCLUDED ALSO THAT
THE EXPIRATION OF THAT YEAR NOT ONLY TERMINATED THE VETERAN'S RIGHT TO
SUCH SPECIAL STATUTORY PROTECTION, BUT LIKEWISE AUTOMATICALLY
TERMINATED HIS RIGHT TO THE SENIORITY IN THE RESTORED POSITION WHICH HE
WOULD HAVE HAD IF HE HAD REMAINED CONTINUOUSLY IN HIS CIVILIAN
EMPLOYMENT.  THAT ADDITIONAL CONCLUSION IS NOT JUSTIFIED BY THE
OPINIONS OF THIS COURT OR BY THE TERMS OF THE ACT.  WE RESERVED THE
POINT IN THE TRAILMOBILE CASE, SUPRA: 

"WE FIND IT UNNECESSARY THEREFORE TO PASS UPON PETITIONERS' POSITION
IN THIS CASE, NAMELY, THAT ALL PROTECTION AFFORDED BY VIRTUE OF SEC.
8(C) TERMINATES WITH THE ENDING OF THE SPECIFIED YEAR.  WE HOLD ONLY
THAT SO MUCH OF IT ENDS THEN AS WOULD GIVE THE REEMPLOYED VETERAN A
PREFERRED STANDING OVER EMPLOYEES NOT VETERANS HAVING IDENTICAL
SENIORITY RIGHTS AS OF THE TIME OF HIS RESTORATION.  WE EXPRESSLY
RESERVE DECISION UPON WHETHER THE STATUTORY SECURITY EXTENDS BEYOND THE
ONE-YEAR PERIOD TO SECURE THE REEMPLOYED VETERAN AGAINST IMPAIRMENT IN
ANY RESPECT OF EQUALITY WITH SUCH A FELLOW WORKER."  (AT P. 60.) 

IN THE FISHGOLD CASE, WE DID NOT DEAL WITH THE EFFECT, IF ANY, UPON A
VETERAN'S SENIORITY, OF THE EXPIRATION OF HIS FIRST YEAR OF
REEMPLOYMENT.  WE THERE DEALT WITH THE INITIAL TERMS OF HIS RESTORED
POSITION.  WE STATED, IN EFFECT, THAT AN HONORABLY DISCHARGED VETERAN,
COVERED BY THE STATUTE, WAS ENTITLED BY THE ACT TO BE RESTORED NOT TO A
POSITION WHICH WOULD BE THE PRECISE EQUIVALENT OF THAT WHICH HE HAD
LEFT WHEN HE JOINED THE ARMED FORCES, BUT RATHER TO A POSITION WHICH,
ON THE MOVING ESCALATOR OF TERMS AND CONDITIONS AFFECTING THAT
PARTICULAR EMPLOYMENT, WOULD BE COMPARABLE TO THE POSITION WHICH HE
WOULD HAVE HELD IF HE HAD REMAINED CONTINUOUSLY IN HIS CIVILIAN
EMPLOYMENT.  FISHGOLD V. SULLIVAN CORP., 328 U.S. 275, 284-285; SEE
ALSO, AERONAUTICAL LODGE V. CAMPBELL, 337 U.S. 521, 526.  IN THE
TRAILMOBILE CASE, SUPRA, AT PAGES 56 AND 60, WE DEALT WITH THE ONE YEAR
OF SPECIAL STATUTORY PROTECTION GIVEN TO THE VETERAN IN HIS RESTORED
POSITION.  WE SAID, IN EFFECT, THAT THIS PROVISION PROTECTED HIM NOT
ONLY FROM THE TOTAL LOSS OF THAT POSITION BY "DISCHARGE" FROM IT
"WITHOUT CAUSE," BUT THAT IT ALSO PROTECTED HIM, FOR ONE YEAR, AGAINST
THE LOSS OF CERTAIN OTHER BENEFITS INCIDENTAL TO HIS RESTORED
POSITION. 

THE INSTANT CASES TAKE US ONE STEP FURTHER.  IN THEM WE HOLD THAT THE
EXPIRATION OF THE YEAR DID NOT TERMINATE THE VETERAN'S RIGHT TO THE
SENIORITY TO WHICH HE WAS ENTITLED BY VIRTUE OF THE ACT'S TREATMENT OF
HIM AS THOUGH HE HAD REMAINED CONTINUOUSLY IN HIS CIVILIAN EMPLOYMENT;
NOR DID IT OPEN THE DOOR TO DISCRIMINATION AGAINST HIM, AS A VETERAN. 
HIS POSITION "WITHOUT LOSS OF SENIORITY,  ...  "  HE THEREFORE ASSUMES,
UPON HIS REEMPLOYMENT, THE SENIORITY HE WOULD HAVE HAD IF HE HAD
REMAINED IN HIS CIVILIAN EMPLOYMENT.  HIS SENIORITY STATUS SECURED BY
THIS STATUTORY WORDING CONTINUES BEYOND THE FIRST YEAR OF HIS
REEMPLOYMENT, SUBJECT TO THE ADVANTAGES AND LIMITATIONS APPLICABLE TO
THE OTHER EMPLOYEES. 

IN THE INSTANT CASES, THE RESPECTIVE COMPLAINTS STATED, IN EFFECT,
THAT THE COMPLAINANTS THEREIN HAD NOT BEEN RESTORED TO THE PLACES TO
WHICH THEY WERE ENTITLED ON THE ESCALATORS OF THEIR RESPECTIVE CIVILIAN
EMPLOYMENTS.  IN NO. 28, THE ALLEGATION WAS THAT THE PETITIONER WAS
ENTITLED, BY VIRTUE OF THE STATUS HE WOULD HAVE ENJOYED HAD HE REMAINED
CONTINUOUSLY IN HIS CIVILIAN EMPLOYMENT, TO THE SENIORITY OF A
LOCOMOTIVE MACHINIST AT CORBIN FROM JULY 1, 1945, RATHER THAN FROM JULY
17, 1946.  IF HE WERE ENTITLED TO THE HIGHER RATING UPON HIS
REEMPLOYMENT, THE ACT DID NOT DEPRIVE HIM OF THAT RATING MERELY BY
VIRTUE OF THE EXPIRATION OF HIS FIRST YEAR OF REEMPLOYMENT.  THE MOTION
TO DISMISS THIS ACTION BECAUSE OF THE EXPIRATION OF THAT YEAR,
ACCORDINGLY, SHOULD HAVE BEEN DENIED. 

IN NO. 29, WE REACH THE SAME RESULT.  THAT RESULT IS NOT AFFECTED BY
THE FAILURE OF THE VETERAN, IN THIS CASE, TO FILE HIS COMPLAINT UNTIL
NEARLY THREE MONTHS AFTER THE EXPIRATION OF HIS FIRST YEAR OF
REEMPLOYMENT.  THE ACT DID NOT ESTABLISH A ONE-YEAR STATUTE OF
LIMITATIONS UPON THE ASSERTION OF THE VETERAN'S INITIAL RIGHTS OF
REEMPLOYMENT.  IT ADDED SPECIAL STATUTORY PROTECTION, FOR ONE YEAR,
AGAINST CERTAIN TYPES OF DISCHARGES OR DEMOTIONS THAT MIGHT ROB THE
VETERAN'S REEMPLOYMENT OF ITS SUBSTANCE, BUT THE EXPIRATION OF THAT
YEAR DID NOT TERMINATE THE RIGHT OF THE VETERAN TO THE SENIORITY TO
WHICH HE WAS, IN THE FIRST INSTANCE, ENTITLED BY VIRTUE OF THE ACT'S
TREATMENT OF HIM AS THOUGH HE HAD REMAINED CONTINUOUSLY IN HIS CIVILIAN
EMPLOYMENT. 

THE JUDGMENT OF THE COURT OF APPEALS IN EACH CASE IS THEREFORE
REVERSED AND THE RESPECTIVE CAUSES ARE REMANDED FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  SEE ESPECIALLY, SEC. 8(A), (B), (C) AND (E), 54 STAT. 890, AS
AMENDED, 56 STAT. 724, 58 STAT. 798, 60 STAT. 341, 50 U.S.C. APP. SEC.
308(A), (B), (C) AND (E).  SEE ALSO, FISHGOLD V. SULLIVAN CORP., 328
U.S. 275, 278, 280, 281, FOR REPRINTS OF THE MATERIAL PORTIONS OF THE
ACT. 

FN2  THE RESPONDENT PREVIOUSLY HAD ANSWERED, FILED A REQUEST FOR
ADMISSIONS UNDER RULE 36, FEDERAL RULES OF CIVIL PROCEDURE, RECEIVED
PETITIONER'S ADMISSIONS, AND MOVED FOR SUMMARY JUDGMENT ON THE
PLEADINGS, THE ADMISSIONS, AND AN AFFIDAVIT FILED IN SUPPORT OF THE
MOTION.  IN THE MEANTIME, SYSTEM FEDERATION NO. 91 OF THE RAILWAY
EMPLOYES' DEPARTMENT OF THE AMERICAN FEDERATION OF LABOR, ACTING ON ITS
OWN BEHALF AND AS THE COLLECTIVE BARGAINING AGENT OF RESPONDENT'S
MACHINIST EMPLOYEES, WAS PERMITTED TO INTERVENE AND TO ANSWER.  IT THEN
FILED THE MOTION TO DISMISS THE CAUSE WHICH WAS ACTED UPON BY THE
COURT.  ACCORDINGLY, NEITHER THE ANSWERS NOR THE MOTION FOR SUMMARY
JUDGMENT ARE BEFORE US, AND WE HAVE CONSIDERED THE CASE ON THE
PETITIONER'S ALLEGATIONS IN HIS COMPLAINT. 

FN3  IN NO. 28, THE COURT SAID: 

"THIS CAUSE COMING ON TO BE HEARD ON THE MOTION OF THE INTERVENING
DEFENDANTS TO DISMISS THE CAUSE ON THE GROUND THAT THE QUESTION
PRESENTED HAS BECOME MOOT, BECAUSE MORE THAN ONE YEAR HAS ELAPSED SINCE
THE DATE OF THE PLAINTIFF'S RESTORATION TO EMPLOYMENT WITH THE
DEFENDANT, L. & N. RAILROAD COMPANY, AND THE COURT BEING ADVISED, IT IS
ORDERED AND ADJUDGED THAT SAID MOTION BE, AND THE SAME IS HEREBY,
SUSTAINED, AND THIS ACTION IS NOW DISMISSED AS MOOT, WITHOUT COST TO
EITHER THE PLAINTIFF, OR THE DEFENDANT, OR THE INTERVENING
DEFENDANTS." 

IN NO. 29, THE ENTRY WAS THE SAME EXCEPT FOR THE NAME OF THE
DEFENDANT RAILWAY. 

FN4  "SEC.  8.  ... 

"(C)  ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE
CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS
PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO
RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN
INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO
ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR
LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON
WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH
POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION."  54
STAT. 890, AS REENACTED, 60 STAT. 341, 50 U.S.C. APP. SEC. 308(C). 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :







UNITED STATES V. CAPITAL TRANSIT CO., 338 U.S. 286 


ARGUED OCTOBER 20-21, 1949.  - DECIDED NOVEMBER 14, 1949.  - REVERSED. 


1.  UNDER THIS COURT'S DECISION IN UNITED STATES V. CAPITAL TRANSIT
CO., 325 U.S. 357, THE INTERSTATE COMMERCE COMMISSION STILL HAS
JURISDICTION UNDER THE MOTOR CARRIER ACT TO PRESCRIBE JOINT THROUGH
FARES FOR THE TRANSPORTATION OF PASSENGERS BY THE CAPITAL TRANSIT CO.
AND CONNECTING VIRGINIA LINES BETWEEN THE DISTRICT OF COLUMBIA AND
CERTAIN NEARBY POINTS IN VIRGINIA - EVEN THOUGH, SINCE THAT DECISION,
ACTIVE WARFARE HAS ENDED, THE NUMBER OF SUCH PASSENGERS HAS BEEN
REDUCED, THE CAPITAL TRANSIT CO. HAS DISCONTINUED RUNNING ANY BUSSES
FROM THE DISTRICT OF COLUMBIA INTO VIRGINIA, AND ITS SHARE OF SUCH
INTERSTATE TRAFFIC IS NOW CONFINED TO CARRYING PASSENGERS BETWEEN
RESIDENTIAL SECTIONS AND THE BUSINESS SECTION OF THE DISTRICT OF
COLUMBIA, WHERE THEY TRANSFER TO OR FROM OTHER LINES RUNNING BETWEEN
THE DISTRICT OF COLUMBIA AND VIRGINIA.  PP. 288-291. 

2.  THIS COURT'S DECISION IN UNITED STATES V. YELLOW CAB CO., 332
U.S. 218, DOES NOT CONFLICT WITH ITS PRIOR HOLDING THAT SUCH
TRANSPORTATION WAS PART OF A CONTINUOUS STREAM OF INTERSTATE
TRANSPORTATION.  P. 290. 

3.  THE COMMISSION'S FINDING, MADE IN THE PRIOR PROCEEDINGS, THAT ITS
EXERCISE OF JURISDICTION WAS NECESSARY TO A NATIONAL TRANSPORTATION
SYSTEM "ADEQUATE TO MEET THE NEEDS OF  ...  THE NATIONAL DEFENSE" IS
STILL SUPPORTED BY SUBSTANTIAL EVIDENCE, NOTWITHSTANDING THAT THE
NATION IS NO LONGER ENGAGED IN ACTIVE WARFARE AND THERE ARE FEWER ARMY
AND NAVY EMPLOYEES AT THE VIRGINIA INSTALLATIONS.  PP. 290-291. 

4.  SINCE THE RECORD IN THIS CASE FAILS TO SHOW THAT THERE WAS
PROPERLY PRESENTED TO THE COMMISSION FOR ITS DETERMINATION ANY ISSUE AS
TO WHETHER THE JOINT RATES IN QUESTION ARE CONFISCATORY, THAT QUESTION
IS NOT RIPE FOR JUDICIAL REVIEW.  P. 291. 

UNITED STATES ET AL. V. CAPITAL TRANSIT COMPANY ET AL. 

NO. 40.  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA* . 

*TOGETHER WITH NO. 41, WASHINGTON, VIRGINIA & MARYLAND COACH CO. ET
AL. V. CAPITAL TRANSIT CO. ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

A THREE-JUDGE DISTRICT COURT ENJOINED ENFORCEMENT OF AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION PUTTING INTO EFFECT A RATE ORDER OF THE
INTERSTATE COMMERCE COMMISSION SUSTAINED BY THIS COURT IN UNITED STATES
V. CAPITAL TRANSIT CO., 325 U.S. 357.  ON APPEAL TO THIS COURT, THE
JUDGMENT OF THE DISTRICT COURT IS REVERSED, P. 291. 

PER CURIAM. 

IN UNITED STATES V. CAPITAL TRANSIT CO., 325 U.S. 357, WE UPHELD THE
JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION TO REGULATE CERTAIN
OF CAPITAL TRANSIT'S BUS AND STREETCAR RATES.  THE RATES INVOLVED WERE
IN TWO DIFFERENT CATEGORIES.  TRANSIT OPERATED, AS IT STILL DOES, A BUS
AND STREETCAR SYSTEM WITHIN THE DISTRICT CONNECTING THE RESIDENTIAL
AREA WITH THE CENTRAL BUSINESS AREA.  IT WAS ALSO ONE OF FOUR BUS
COMPANIES CARRYING PASSENGERS FROM THAT CENTRAL BUSINESS AREA TO THE
PENTAGON BUILDING AND OTHER DEFENSE ESTABLISHMENTS LOCATED JUST ACROSS
THE POTOMAC IN VIRGINIA.  EACH DAY THOUSANDS OF GOVERNMENT EMPLOYEES
LIVING IN THE DISTRICT BOARDED TRANSIT'S STREETCARS NEAR THEIR
RESIDENCES, RODE TO THE DISTRICT'S BUSINESS AREA, AND THERE TRANSFERRED
TO ONE OF THE VIRGINIA BUSSES FOR CARRIAGE TO THE NEARBY VIRGINIA
ESTABLISHMENTS.  IN THE ABOVE CASE WE SUSTAINED A COMMISSION ORDER
FIXING A THROUGH FARE FOR THE ENTIRE TRIP BETWEEN THE DISTRICT
RESIDENTIAL AREA AND THE VIRGINIA GOVERNMENTAL INSTALLATIONS.  TRANSIT
HAD STRONGLY URGED THAT ITS BUS AND STREETCAR TRANSPORTATION BETWEEN
RESIDENTIAL AND BUSINESS AREAS, BEING WHOLLY WITHIN THE DISTRICT, COULD
NOT BE TREATED AS PART OF AN INTERSTATE MOVEMENT.  FOR REASONS STATED
IN OUR FORMER OPINION WE REJECTED TRANSIT'S CONTENTION, HOLDING THAT
THE DAILY STREAM OF GOVERNMENT WORKERS FROM THE DISTRICT TO VIRGINIA
AND BACK AGAIN WAS AN INTERSTATE MOVEMENT AND THEREFORE SUBJECT TO
REGULATION BY THE COMMISSION.  THIS HOLDING APPLIED TO TRANSIT CARRIAGE
EVEN WHERE TRANSIT PASSENGERS TRAVELED BETWEEN THE DISTRICT AND
VIRGINIA ON OTHER BUS LINES.  TRANSIT ALSO CONTENDED THAT JURISDICTION
OF THE COMMISSION WAS PRECLUDED BY A PROVISO IN SEC. 216(E) OF THE
MOTOR CARRIER ACT EXEMPTING "INTRASTATE TRANSPORTATION" OF MOTOR
CARRIERS FROM REGULATION BY THE COMMISSION.  THIS CONTENTION WAS
REPEATED ON MOTION FOR REHEARING.  WE REJECTED IT.  OUR HOLDING THAT
TRANSIT'S PART OF THE DISTRICT-VIRGINIA MOVEMENTS WAS "INTERSTATE
TRANSPORTATION" NECESSARILY MADE THE SEC. 216(E) EXEMPTION
INAPPLICABLE. 

AFTER OUR HOLDING THE COMMISSION ENTERED A NEW ORDER PUTTING INTO
EFFECT THE RATE ORDER WE HAD SUSTAINED.  IN THE PRESENT CASES, HERE ON
APPEAL FROM A THREE-JUDGE DISTRICT COURT UNDER 28 U.S.C. SECS. 1253 AND
2101(B), THE NEW ORDER WAS ENJOINED  FN1  ON THE GROUND THAT TRANSIT'S
TRANSPORTATION, WHICH WE HAD HELD TO BE INTERSTATE, HAD NOW BECOME
"INTRASTATE."  ON THE SAME GROUND, THAT COURT ALSO HELD THAT TRANSIT
WAS EXEMPT FROM COMMISSION JURISDICTION UNDER THE PROVISO IN SEC.
216(E).  THE DISTRICT COURT ALSO CITED TO SUPPORT ITS RULING OUR RECENT
DECISION IN UNITED STATES V. YELLOW CAB CO., 332 U.S. 218. 

THE DISTRICT COURT APPARENTLY TOOK THE POSITION THAT CHANGED
CONDITIONS SINCE OUR DECISION IN THE PRIOR TRANSIT CASE HAD DEPRIVED
THE COMMISSION OF ITS JURISDICTION.  WHEN WE SUSTAINED THE COMMISSION'S
ORDER IN THAT CASE, TRANSIT WAS ITSELF OPERATING ONE OF THE FOUR BUS
LINES CARRYING GOVERNMENT WORKERS FROM THE DISTRICT CENTRAL BUSINESS
AREA TO VIRGINIA.  IT ISSUED TRANSFERS TO PASSENGERS ON ITS BUSSES AND
STREETCARS BETWEEN THE DISTRICT BUSINESS AND RESIDENTIAL AREAS.  THESE
TRANSFERS WERE GOOD FOR RIDES ON TRANSIT'S OWN DISTRICT-VIRGINIA
BUSSES, BUT TRANSIT WOULD NOT GIVE TRANSFERS GOOD ON THE THREE
COMPETITIVE LINES.  WE ADVERTED TO AND RELIED ON THIS SITUATION AS ONE
OF THE REASONS SUPPORTING THE COMMISSION'S REQUIREMENT THAT TRANSIT
MAKE SIMILAR ARRANGEMENTS FOR THROUGH FARES WITH THE OTHER LINES. 
APRIL 1, 1947, TRANSIT ABANDONED ITS DISTRICT-VIRGINIA BUS LINE. 
BECAUSE OF THIS THE DISTRICT COURT HELD THAT SINCE THAT DATE ALL OF
TRANSIT'S CARRIAGE OF VIRGINIA-BOUND PASSENGERS HAS BEEN "INTRASTATE
TRANSPORTATION." 

THE DISTRICT COURT'S ANNULMENT OF THE COMMISSION'S ORDER ON THE ABOVE
GROUND CANNOT STAND.  OUR PREVIOUS HOLDING WAS THAT ALL OF TRANSIT'S
INTRA-DISTRICT CARRIAGE OF PASSENGERS BOUND TO AND FROM THE VIRGINIA
ESTABLISHMENTS WAS PART OF AN "INTERSTATE" MOVEMENT AND THEREFORE
SUBJECT TO COMMISSION REGULATION THROUGHOUT, UPON PROPER COMMISSION
FINDINGS.  UNITED STATES V. YELLOW CAB CO., SUPRA, DOES NOT CONFLICT
WITH OUR PRIOR HOLDING THAT TRANSIT'S TRANSPORTATION WAS PART OF A
CONTINUOUS STREAM OF INTERSTATE TRANSPORTATION.  WE ADHERE TO THAT
HOLDING.  TRANSIT'S INTRA-DISTRICT STREETCAR AND BUS TRANSPORTATION OF
PASSENGERS GOING TO AND FROM THE VIRGINIA ESTABLISHMENTS IS AN INTEGRAL
PART OF AN INTERSTATE MOVEMENT. 

IN SUPPORT OF THE DISTRICT COURT'S JUDGMENT IT IS URGED THAT THERE
WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE COMMISSION'S FINDINGS THAT
ITS EXERCISE OF JURISDICTION WAS NECESSARY TO A NATIONAL TRANSPORTATION
SYSTEM "ADEQUATE TO MEET THE NEEDS OF  ...  THE NATIONAL DEFENSE."  THE
ARGUMENT SEEMS TO BE THAT THE COMMISSION SHOULD HAVE ALTERED THIS
FINDING MADE IN THE PRIOR PROCEEDINGS BECAUSE THE NATION IS NO LONGER
AT WAR.  ANOTHER FACTOR POINTED OUT IS THAT THERE ARE NOW FEWER ARMY
AND NAVY WORKERS WHO WORK IN THE VIRGINIA INSTALLATIONS.  NEITHER OF
THESE ARGUMENTS IS SUFFICIENT TO JUSTIFY SETTING ASIDE FINDINGS MADE BY
THE COMMISSION ON THIS POINT.  THE EVIDENCE BEFORE THE COMMISSION IN
THE TWO PROCEEDINGS INDICATES THAT THE SAME REASONS EXIST FOR
COMMISSION ACTION NOW AS BEFORE.  AND DESPITE ATTEMPTED INTERFERENCE
WITH THE COMMISSION'S POWER BY THE PUBLIC UTILITIES COMMISSION OF THE
DISTRICT, IT IS STILL TRUE THAT NEITHER THE DISTRICT NOR VIRGINIA HAS
ADEQUATE POWER TO REGULATE THE THROUGH RATES FOR THIS DAILY STREAM OF
INTERSTATE TRAVEL. 

IT IS ALSO ARGUED HERE THAT THE ORDERS SHOULD BE SET ASIDE BECAUSE
THEY ARE CONFISCATORY.  BUT THE RECORD FAILS TO SHOW THAT THIS ISSUE
WAS PROPERLY PRESENTED TO THE COMMISSION FOR ITS DETERMINATION. 
THEREFORE THE QUESTION OF CONFISCATION IS NOT RIPE FOR JUDICIAL
REVIEW. 

WE HAVE EXAMINED OTHER CONTENTIONS URGED IN SUPPORT OF THE DISTRICT
COURT'S JUDGMENTS AND FIND THAT ALL ARE WITHOUT MERIT. 

THE JUDGMENTS OF THE DISTRICT COURT IN THESE CASES ARE REVERSED AND
THE CAUSES ARE REMANDED TO IT WITH DIRECTIONS TO DISMISS THESE
ACTIONS.  IT IS SO ORDERED. 

FN1  THE DISTRICT COURT SIMULTANEOUSLY ENJOINED ENFORCEMENT OF TWO
SUBSEQUENT RELATED COMMISSION ORDERS.  ONE ORDER DECLINED TO PERMIT
CANCELLATION OF THE PRESCRIBED THROUGH RATES AND SCHEDULES.  47 M.C.C.
205.  THE OTHER INCREASED THE FORMER PRESCRIBED MAXIMUM RATES AND
PROVIDED FOR DIVISIONS OF THROUGH FARES AMONG THE COMPANIES CARRYING
THE DISTRICT-VIRGINIA PASSENGERS.  270 I.C.C. 651. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

THE CHIEF JUSTICE, MR. JUSTICE REED, AND MR. JUSTICE JACKSON
DISSENTING. 

THE OPINION IN OUR VIEW BASES THE JUDGMENT ON A HOLDING "THAT ALL OF
TRANSIT'S INTRA-DISTRICT CARRIAGE OF PASSENGERS BOUND TO AND FROM THE
VIRGINIA ESTABLISHMENTS WAS PART OF AN 'INTERSTATE' MOVEMENT AND
THEREFORE SUBJECT TO COMMISSION REGULATION THROUGHOUT, UPON PROPER
COMMISSION FINDINGS."  SINCE THE COURT DOES NOT REST THE APPLICABILITY
OF THE MOTOR CARRIER ACT, 49 STAT. 543, TO THE CAPITAL TRANSIT COMPANY
ON THE EXISTENCE OF TRANSIT'S LINES TO MARYLAND, WE, TOO, LAY THAT
PROBLEM ASIDE.  WE UNDERSTAND THE COURT TO ASSERT THAT THE STATUTE
EMPOWERS THE COMMISSION TO ENTER THE CONTESTED ORDER WHETHER OR NOT
TRANSIT OPERATES ADMITTED INTERSTATE ROUTES. 

THE PRESENT CASE DIFFERS FROM THE FORMER CASE INVOLVING THE
OPERATIONS OF THE TRANSIT COMPANY.  325 U.S. 357.  IN THE EARLIER CASE
TRANSIT SERVED VIRGINIA AREAS IN COMPETITION PETITION WITH OTHER
INTERSTATE OPERATORS OF BUSSES.  AS THE OPERATOR OF INTERSTATE ROUTES
SELLING THROUGH TICKETS ON ITS OWN LINES, TRANSIT WAS REQUIRED ALSO TO
SELL AND ACCEPT THROUGH TICKETS THAT WERE GOOD FOR PASSAGE ON OTHER
INTERSTATE LINES.  SUCH OBLIGATION WAS IMPOSED BY SEC. 216(E), THE
PREJUDICIAL," AND SEC. 216(C), THE SECTION REGULATING CHARGES FOR
VOLUNTARY THROUGH RATES.  325 U.S. AT 362. 

NOW TRANSIT DOES NOT OPERATE THE INTERSTATE ROUTES TO THE VIRGINIA
POINTS.  IT IS NOT AN INTERSTATE CARRIER OVER THE ROUTE FOR WHICH IT
NOW IS REQUIRED TO SELL THROUGH TICKETS.  THEREFORE, THE COURT'S
OPINION FINDS IT NECESSARY TO RELY UPON THE STREAM OF PASSENGERS
BETWEEN THE DISTRICT AND VIRGINIA TO PUT TRANSIT UNDER THE MOTOR
CARRIER ACT AS ENGAGED IN INTERSTATE COMMERCE SO FAR AS IT TRANSPORTS,
IN THE DISTRICT, PASSENGERS WITH AN ULTIMATE OUT-OF-STATE DESTINATION. 
WE DO NOT BELIEVE THE ACT PERMITS SUCH A CONSTRUCTION. 

CLEARLY THE ACT IS LIMITED TO OPERATIONS IN INTERSTATE COMMERCE.  FN1
CONGRESS HAS NOT USED THE FULL EXTENT OF ITS COMMERCE POWER TO REACH
INCIDENTS AFFECTING INTERSTATE TRANSPORTATION.  IT HAS EMPHASIZED A
CONTRARY INTENTION BY PROVIDING FOR THE EXCLUSION FROM THE COVERAGE OF
THE ACT, IN CERTAIN SITUATIONS, OF INTERSTATE PASSENGER TRAFFIC IN A
MUNICIPALITY, CONTIGUOUS MUNICIPALITIES OR ADJACENT ZONES.  SEC.
203(B)(8).  LIKEWISE THE ACT SPECIFICALLY BARS THE COMMISSION FROM
REGULATING INTRASTATE TRANSPORTATION ON THE GROUND THAT IT AFFECTS
INTERSTATE TRANSPORTATION.  FN2 SINCE THE MOTOR CARRIER ACT DOES NOT
REGULATE CARRIER ACTIVITIES THAT MERELY AFFECT INTERSTATE COMMERCE, WE
THINK THE STREAM OF COMMERCE THEORY INAPPLICABLE.  FN3  WE CANNOT AGREE
THAT INTRASTATE CARRIAGE OF PASSENGERS WHO HAVE AN INTENTION TO
CONTINUE THEIR JOURNEY ACROSS STATE LINES BY WAY OF ANOTHER AND WHOLLY
UNCONNECTED COMPANY MAKES THE FIRST CARRIER A COMPANY ENGAGED IN
INTERSTATE COMMERCE UNDER THE MOTOR CARRIER ACT AS TO THAT
TRANSPORTATION. 

THE COURT'S DECISION MAY HAVE UNFORTUNATE RESULTS.  ITS UNLIMITED
LANGUAGE SWEEPS INTO THE HANDS OF THE COMMISSION THE REGULATION OF ALL
LOCAL TRANSPORTATION THAT CARRIES A LARGE PROPORTION OF PASSENGERS
DESTINED FOR OR ARRIVING FROM OUT-OF-STATE POINTS.  FOR EXAMPLE, THE
COURT'S RULING WOULD SEEM TO INCLUDE THE NEW YORK CITY COMMUTER TRAFFIC
MOVING BY LOCAL BUS, SUBWAY AND STREETCAR SERVICE ON ITS WAY TO AND
FROM INTERSTATE BUSSES. 

FN1  "SEC.  202.  (B)  THE PROVISIONS OF THIS PART APPLY TO THE
TRANSPORTATION OF PASSENGERS OR PROPERTY BY MOTOR CARRIERS ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE AND TO THE PROCUREMENT OF AND THE
PROVISION OF FACILITIES FOR SUCH TRANSPORTATION, AND THE REGULATION OF
SUCH TRANSPORTATION, AND OF THE PROCUREMENT THEREOF, AND THE PROVISION
OF FACILITIES THEREFOR, IS HEREBY VESTED IN THE INTERSTATE COMMERCE
COMMISSION." 

FN2  "THAT NOTHING IN THIS PART SHALL EMPOWER THE COMMISSION TO
PRESCRIBE, OR IN ANY MANNER REGULATE, THE RATE, FARE, OR CHARGE FOR
INTRASTATE TRANSPORTATION, OR FOR ANY SERVICE CONNECTED THEREWITH, FOR
THE PURPOSE OF REMOVING DISCRIMINATION AGAINST INTERSTATE COMMERCE OR
FOR ANY OTHER PURPOSE WHATEVER."  SEC. 216(E). 

FN3  SEE MCLEOD V. THRELKELD, 319 U.S. 491; LABOR BOARD V. JONES &
LAUGHLIN, 301 U.S. 1; STAFFORD V. WALLACE, 258 U.S. 495. 
..END :












UNITED STATES V. SPELAR, 338 U.S. 217 


NO. 42.  ARGUED OCTOBER 18, 1949.  - DECIDED NOVEMBER 7, 1949.  - 171
F.2D 208, REVERSED. 


THE FEDERAL TORT CLAIMS ACT, WHICH IS INAPPLICABLE BY ITS TERMS TO ANY
CLAIM "ARISING IN A FOREIGN COUNTRY," DOES NOT AUTHORIZE AN ACTION
AGAINST THE UNITED STATES FOR AN ALLEGEDLY WRONGFUL DEATH OCCURRING AT
A NEWFOUNDLAND AIR BASE UNDER LONG-TERM LEASE FROM GREAT BRITAIN TO THE
UNITED STATES AND ALLEGEDLY RESULTING FROM THE NEGLIGENT OPERATION OF
THE AIR BASE BY THE UNITED STATES.  VERMILYA-BROWN CO. V. CONNELL, 335
U.S. 377, DISTINGUISHED.  PP. 218-222. 

UNITED STATES V. SPELAR, ADMINISTRATRIX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

THE DISTRICT COURT DISMISSED AN ACTION BROUGHT AGAINST THE UNITED
STATES UNDER THE FEDERAL TORT CLAIMS ACT, TO RECOVER FOR THE ALLEGEDLY
WRONGFUL DEATH OF A FLIGHT ENGINEER AT AN AIR FIELD IN NEWFOUNDLAND
LEASED BY THE UNITED STATES FROM GREAT BRITAIN.  75 F.SUPP.  967.  THE
COURT OF APPEALS REVERSED.  171 F.2D 208.  THIS COURT GRANTED
CERTIORARI.  336 U.S. 950.  REVERSED, P. 222. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL TORT CLAIMS ACT IS INAPPLICABLE BY ITS TERMS TO "ANY
CLAIM ARISING IN A FOREIGN COUNTRY."  FN1  THE COURT OF APPEALS FOR THE
SECOND CIRCUIT HAS HELD THAT THIS PROVISION DOES NOT BAR SUIT AGAINST
THE GOVERNMENT FOR AN ALLEGEDLY WRONGFUL DEATH OCCURRING AT A
NEWFOUNDLAND AIR BASE UNDER LONG-TERM LEASE TO THE UNITED STATES.  FN2
WE ARE HERE ASKED TO REVIEW THAT DECISION. 

FLIGHT ENGINEER MARK SPELAR, AN EMPLOYEE OF AMERICAN OVERSEAS
AIRLINES, WAS KILLED ON OCTOBER 3, 1946, IN A TAKE-OFF CRASH AT HARMON
FIELD, NEWFOUNDLAND.  THIS AIR BASE IS ONE OF THE AREAS LEASED FOR
NINETY-NINE YEARS BY GREAT BRITAIN TO THE UNITED STATES PURSUANT TO THE
SAME EXECUTIVE AGREEMENT AND LEASES DISCUSSED AT LENGTH IN VERMILYA
BROWN CO. V. CONNELL, 335 U.S. 377.  SPELAR'S ADMINISTRATRIX,
RESPONDENT HERE, INITIATED THIS ACTION AGAINST THE UNITED STATES UNDER
THE FEDERAL TORT CLAIMS ACT IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE EASTERN DISTRICT OF NEW YORK, THE DISTRICT WHERE SHE RESIDES. 
SHE ALLEGES THAT THE FATAL ACCIDENT WAS CAUSED BY THE GOVERNMENT'S
NEGLIGENT OPERATION OF HARMON FIELD.  THE LOCAL LAW WHICH UNDERLIES HER
CAUSE OF ACTION IS NEWFOUNDLAND'S WRONGFUL DEATH STATUTE AUTHORIZING
THE EXECUTOR OR ADMINISTRATOR TO BRING SUIT FOR DEATH ARISING FROM
NEGLIGENCE.  FN3  UPON THE GOVERNMENT'S MOTION, THE DISTRICT COURT HELD
THE CLAIM TO BE ONE "ARISING IN A FOREIGN COUNTRY," AND DISMISSED THE
COMPLAINT FOR WANT OF JURISDICTION.  THE COURT OF APPEALS REVERSED. 
OUR DECISION IN VERMILYA-BROWN THAT THE FAIR LABOR STANDARDS ACT
APPLIES TO SUCH LEASED MILITARY BASES WAS DEEMED "PERSUASIVE, IF NOT
WELL-NIGH CONCLUSIVE" OF THE ISSUE HERE.  FN4  BECAUSE OF THIS BROAD
INTERPRETATION PUT UPON OUR OPINION IN VERMILYA-BROWN, AND BECAUSE THE
DECISION SUBSTANTIALLY AFFECTS THE AREA OF PRIVATE SUIT AGAINST THE
GOVERNMENT, WE GRANTED CERTIORARI, 336 U.S. 950. 

WE ARE OF THE OPINION THAT THE COURT BELOW HAS ERRED.  SUFFICIENT
BASIS FOR OUR CONCLUSION LIES IN THE EXPRESS WORDS OF THE STATUTE.  WE
KNOW OF NO MORE ACCURATE PHRASE IN COMMON ENGLISH USAGE THAN "FOREIGN
COUNTRY" TO DENOTE TERRITORY SUBJECT TO THE SOVEREIGNTY OF ANOTHER
NATION.  FN5  BY THE EXCLUSION OF CLAIMS "ARISING IN A FOREIGN
COUNTRY," THE COVERAGE OF THE FEDERAL TORT CLAIMS ACT WAS GEARED TO THE
SOVEREIGNTY OF THE UNITED STATES.  WE REPEAT WHAT WAS SAID IN VERMILYA
BROWN AT PAGE 380:  "THE ARRANGEMENTS UNDER WHICH THE LEASED BASES WERE
ACQUIRED FROM GREAT BRITAIN DID NOT AND WERE NOT INTENDED TO TRANSFER
SOVEREIGNTY OVER THE LEASED AREAS FROM GREAT BRITAIN TO THE UNITED
STATES."  HARMON FIELD, WHERE THIS CLAIM "AROSE," REMAINED SUBJECT TO
THE SOVEREIGNTY OF GREAT BRITAIN AND LAY WITHIN A "FOREIGN COUNTRY." 
THE CLAIM MUST BE BARRED. 

IF THE WORDS OF THE STATUTE WERE NOT ENOUGH, HOWEVER, TO SUSTAIN OUR
RESULT, WE THINK THE LEGISLATIVE HISTORY BEHIND THIS PROVISION
CONCLUDES ALL DOUBT.  THE FEDERAL TORT CLAIMS ACT OF 1946 WAS THE
PRODUCT OF SOME TWENTY-EIGHT YEARS OF CONGRESSIONAL DRAFTING AND
REDRAFTING, AMENDMENT AND COUNTER-AMENDMENT.  FN6  THE DRAFT BEING
CONSIDERED IN 1942 BY THE HOUSE COMMITTEE ON THE JUDICIARY EXEMPTED ALL
CLAIMS "ARISING IN A FOREIGN COUNTRY IN BEHALF OF AN ALIEN."  FN7 AT
THE SUGGESTION OF THE ATTORNEY GENERAL, THE LAST FIVE WORDS WERE
EXCISED IN A REVISED VERSION OF THE BILL,  FN8  SO THAT THE EXEMPTION
PROVISION ASSUMED THE FORM WHICH WAS ULTIMATELY ENACTED INTO LAW.  FN9
THE SUPERSEDED DRAFT HAD MADE THE WAIVER OF THE GOVERNMENT'S
TRADITIONAL IMMUNITY TURN UPON THE FORTUITOUS CIRCUMSTANCE OF THE
INJURED PARTY'S CITIZENSHIP.  THE AMENDED VERSION IDENTIFIED THE
COVERAGE OF THE ACT WITH THE SCOPE OF UNITED STATES SOVEREIGNTY.  THE
RECORD OF THE HEARINGS TELLS US WHY.  WE QUOTE THE PERTINENT COLLOQUY
BETWEEN ASSISTANT ATTORNEY GENERAL FRANCIS M. SHEA, WHO EXPLAINED THE
ATTORNEY GENERAL'S REVISED VERSION OF THE BILL TO THE HOUSE COMMITTEE
ON THE JUDICIARY, AND CONGRESSMAN ROBSION OF THAT COMMITTEE. 

"MR. SHEA.  ...  CLAIMS ARISING IN A FOREIGN COUNTRY HAVE BEEN
EXEMPTED FROM THIS BILL, H.R. 6463, WHETHER OR NOT THE CLAIMANT IS AN
ALIEN.  SINCE LIABILITY IS TO BE DETERMINED BY THE LAW OF THE SITUS OF
THE WRONGFUL ACT OR OMISSION IT IS WISE TO RESTRICT THE BILL TO CLAIMS
ARISING IN THIS COUNTRY.  THIS SEEMS DESIRABLE BECAUSE THE LAW OF THE
PARTICULAR STATE IS BEING APPLIED.  OTHERWISE, IT WILL LEAD I THINK TO
A GOOD DEAL OF DIFFICULTY. 

"MR. ROBSION.  YOU MEAN BY THAT ANY REPRESENTATIVE OF THE UNITED
STATES WHO COMMITTED A TORT IN ENGLAND OR SOME OTHER COUNTRY COULD NOT
BE REACHED UNDER THIS? 

"MR. SHEA.  THAT IS RIGHT.  THAT WOULD HAVE TO COME TO THE COMMITTEE
ON CLAIMS IN THE CONGRESS."  FN10 

IN BRIEF, THOUGH CONGRESS WAS READY TO LAY ASIDE A GREAT PORTION OF
THE SOVEREIGN'S ANCIENT AND UNQUESTIONED IMMUNITY FROM SUIT, IT WAS
UNWILLING TO SUBJECT THE UNITED STATES TO LIABILITIES DEPENDING UPON
THE LAWS OF A FOREIGN POWER.  THE LEGISLATIVE WILL MUST BE RESPECTED. 
THE PRESENT SUIT, PREMISED ENTIRELY UPON NEWFOUNDLAND'S LAW, MAY NOT BE
ASSERTED AGAINST THE UNITED STATES IN CONTRAVENTION OF THAT WILL. 

TO THE EXTENT THAT VERMILYA-BROWN CO. V. CONNELL HAS ANY APPLICATION
TO THE CASE AT BAR, IT STANDS AS AUTHORITY FOR OUR RESULT HERE, FOR IT
POSTULATES THAT THE EXECUTIVE AGREEMENT AND LEASES EFFECTED NO TRANSFER
OF SOVEREIGNTY WITH RESPECT TO THE MILITARY BASES CONCERNED.  FN11  FOR
THE REST, WE THERE HELD NO MORE THAN THAT THE WORD "POSSESSIONS" DOES
NOT NECESSARILY IMPLY SOVEREIGNTY, AND CONCLUDED AS A MATTER OF
INTERPRETATION OF THE LEGISLATIVE HISTORY OF THE FAIR LABOR STANDARDS
ACT THAT THE LEASED BASES, NOT IN EXISTENCE AT THE TIME THE ACT WAS
PASSED, WERE TO BE INCLUDED AS "POSSESSIONS" IN THE SENSE IN WHICH THAT
WORD WAS USED IN THAT STATUTE.  THE STATUTORY LANGUAGE AND THE
LEGISLATIVE RECORD RELATING TO THE AMBIT OF THE FEDERAL TORT CLAIMS ACT
DIFFER ENTIRELY FROM THOSE PERTINENT TO THE FAIR LABOR STANDARDS ACT;
AND SINCE THE BASES HAD BEEN LEASED TO THE UNITED STATES PRIOR TO THE
ENACTMENT OF THE STATUTE HERE INVOLVED, THE VERMILYA-BROWN PROBLEM OF
DETERMINING WHAT CONGRESS WOULD HAVE DONE WHEN FACED WITH A NEW
SITUATION DOES NOT EXIST AT ALL IN THE PRESENT CASE. 

IN FOLEY BROS. V. FILARDO,  FN12  WE HAD OCCASION TO REFER TO THE
"CANON OF CONSTRUCTION WHICH TEACHES THAT LEGISLATION OF CONGRESS,
UNLESS A CONTRARY INTENT APPEARS, IS MEANT TO APPLY ONLY WITHIN THE
TERRITORIAL JURISDICTION OF THE UNITED STATES  ...  "  THAT
PRESUMPTION, FAR FROM BEING OVERCOME HERE, IS DOUBLY FORTIFIED BY THE
LANGUAGE OF THIS STATUTE AND THE LEGISLATIVE PURPOSE UNDERLYING IT. 

THE DECISION MUST BE REVERSED. 

FN1  62 STAT. 984, 28 U.S.C. (SUPP. II) SEC. 2680(K).  THE LANGUAGE
WAS IDENTICAL AT THE TIME THIS SUIT WAS INSTITUTED THOUGH AT THAT TIME
CONTAINED IN 60 STAT. 846, 28 U.S.C. SEC. 943(K). 

FN2  SPELAR V. UNITED STATES, 171 F.2D 208. 

FN3  CONS.  STATS.  OF NEWFOUNDLAND (3D SERIES), C. 213.  LOCAL LAW
MUST BE PLEADED SINCE THE FEDERAL TORT CLAIMS ACT PERMITS SUIT ONLY
"WHERE THE UNITED STATES, IF A PRIVATE PERSON, WOULD BE LIABLE  ...  IN
ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE ACT OR OMISSION
OCCURRED."  60 STAT. 843, 28 U.S.C. SEC. 931(A).  THE SUBSTANCE OF THIS
PROVISION IS NOW EMBODIED IN 62 STAT. 933, 28 U.S.C. (SUPP. II) SEC.
1346(B). 

FN4  SPELAR V. UNITED STATES, 171 F.2D 208, 209. 

FN5  SEE MR. JUSTICE BROWN FOR THE COURT IN DE LIMA V. BIDWELL, 182
U.S. 1, 180:  "A FOREIGN COUNTRY WAS DEFINED BY MR. CHIEF JUSTICE
MARSHALL AND MR. JUSTICE STORY TO BE ONE EXCLUSIVELY WITHIN THE
SOVEREIGNTY OF A FOREIGN NATION, AND WITHOUT THE SOVEREIGNTY OF THE
UNITED STATES.  THE BOAT ELIZA, 2 GALL.  4; TABER V. UNITED STATES, 1
STORY, 1; THE SHIP ADVENTURE, 1 BROCK.  235, 241." 

FN6  AGITATION FOR REFORM OF THE CUMBERSOME PRIVATE BILL PROCEDURE
BORE ITS FIRST FRUIT IN H.R. 14737 INTRODUCED IN THE THIRD SESSION OF
THE SIXTY-FIFTH CONGRESS IN 1919.  THE SUBJECT WAS ALMOST CONTINUOUSLY
BEFORE ONE HOUSE OR THE OTHER UNTIL THE FINAL PASSAGE OF THE SUBSTANCE
OF THE PRESENT ACT BY THE SEVENTY-NINTH CONGRESS.  IN THE REVISION OF
THE JUDICIAL CODE, ACT OF JUNE 25, 1948, 62 STAT. 869, MINOR
AMENDMENTS, NOT RELEVANT HERE, WERE MADE. 

FN7  H.R. 5373, 77TH CONG., 2D SESS., SEC. 303(12). 

FN8  HEARINGS, H.R. 5373 AND H.R. 6463, 77TH CONG., 2D SESS., PP. 29,
35, 66.  THE ATTORNEY GENERAL'S REVISED VERSION WAS H.R. 6463, SEC.
402(12). 

FN9  THE SHAPE OF THE FEDERAL TORT CLAIMS ACT WAS LARGELY DETERMINED
DURING ITS CONSIDERATION IN THE COURSE OF THE 77TH CONGRESS. 
SUBSEQUENTLY THE BILL WAS REINTRODUCED WITHOUT SUBSTANTIAL MODIFICATION
OR FURTHER HEARINGS UNTIL ITS ENACTMENT DURING THE 79TH CONGRESS.  THE
REVISED VERSION OF THE TORT CLAIMS BILL INTRODUCED DURING THE 2D
SESSION OF THE 77TH CONGRESS, S. 2221, WAS REPORTED FAVORABLY BY THE
SENATE COMMITTEE ON THE JUDICIARY (S. REP. NO. 1196, 77TH CONG., 2D
SESS.), AND PASSED THE SENATE.  88 CONG. REC. 3174.  THE HOUSE
COMMITTEE ON THE JUDICIARY, TO WHICH IT WAS THEN REFERRED, AND WHICH
HAD BEEN HOLDING HEARINGS ON H.R. 6463, THE COMPANION MEASURE TO S.
2221, THE BILL PASSED BY THE SENATE, REPORTED THE BILL FAVORABLY (H.R.
REP. NO. 2245, 77TH CONG., 2D SESS.), BUT IT WAS NEVER CONSIDERED BY
THE HOUSE.  IT WAS REINTRODUCED IN THE 78TH CONGRESS (H.R. 1356, 78TH
CONG., 1ST SESS.; S. 1114, 78TH CONG., 1ST SESS.), BUT NO ACTION WAS
TAKEN AND AGAIN IN THE 79TH CONGRESS (H.R. 181, REPORTED IN H.R. REP.
NO. 1287, 79TH CONG., 1ST SESS.).  IT WAS FINALLY PASSED BY THE 79TH
CONGRESS AS PART OF THE OMNIBUS LEGISLATIVE REORGANIZATION ACT.  60
STAT. 842. 

FN10  HEARINGS, SUPRA NOTE 8, P. 35. 

FN11  VERMILYA-BROWN CO. V. CONNELL, 335 U.S. 377, 380. 

FN12  336 U.S. 281, 285.  THE CASE HOLDS THE EIGHT HOUR LAW
INAPPLICABLE TO GOVERNMENT CONTRACTORS WORKING ON MILITARY BASES NOT
UNDER LEASE TO THE UNITED STATES. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IN SOME ASPECTS, NO DOUBT, EVERY STATUTE PRESENTS A UNIQUE PROBLEM
FOR INTERPRETATION.  BUT THE PRESUPPOSITIONS OF THE JUDICIAL PROCESS IN
CONSTRUING LEGISLATION SHOULD BE NEITHER CAPRICIOUS NOR AD HOC.  WHILE
NORMALLY, THEREFORE, IT IS NOT VERY FRUITFUL TO EXPRESS DISAGREEMENT
EITHER WITH THE RENDERING OF A PARTICULAR STATUTE OR THE MODE BY WHICH
THAT IS REACHED, WHERE THIS INVOLVES IMPLICATIONS TOUCHING THE VERY
PROCESS OF JUDICIAL CONSTRUCTION SILENCE MAY CARRY SIGNIFICANCE BEYOND
THE IMMEDIATE CASE. 

I AGREE THAT THE FEDERAL TORT CLAIMS ACT DOES NOT AFFORD A RIGHT OF
ACTION FOR THE NEGLIGENT CONDUCT OF THE GOVERNMENT, THROUGH ITS
EMPLOYEES, AT ONE OF THE BASES HELD BY THE UNITED STATES UNDER THE LONG
TERM ARRANGEMENTS MADE WITH GREAT BRITAIN.  BUT THE ROAD TRAVELED BY
THE COURT'S OPINION IN REACHING THIS RESULT DOES NOT SEEM TO ME THE WAY
TO GET THERE. 

THE COURT'S OPINION FINDS THE PHRASE "FOREIGN COUNTRY," IN THAT ACT'S
RESTRICTION AGAINST CLAIMS "ARISING IN A FOREIGN COUNTRY," TO BE AS
COMPELLING IN EXCLUDING THE NEWFOUNDLAND AIR BASE, UNDER THE KIND OF
CONTROL THAT THE UNITED STATES EXERCISES AT THESE BASES, AS LESS THAN A
YEAR AGO IT FOUND THE TERM "POSSESSIONS" IN THE FAIR LABOR STANDARDS
ACT TO BE COMPELLING IN INCLUDING THESE BASES.  VERMILYA-BROWN CO. V.
CONNELL, 335 U.S. 377.  TO ASSUME THAT TERMS LIKE "FOREIGN COUNTRY" AND
"POSSESSIONS" ARE SELF-DEFINING, NOT AT ALL INVOLVING A CHOICE OF
JUDICIAL JUDGMENT, IS MECHANICAL JURISPRUDENCE AT ITS BEST.  THESE
TERMS DO NOT HAVE FIXED AND INCLUSIVE MEANINGS, AS IS TRUE OF
MATHEMATICAL AND OTHER SCIENTIFIC TERMS.  BOTH "POSSESSIONS" AND
"FOREIGN COUNTRY" HAVE PENUMBRAL MEANINGS, WHICH IS NOT TRUE, FOR
INSTANCE, OF THE VERBAL DESIGNATIONS FOR WEIGHTS AND MEASURES.  IT IS
THIS PRECISION OF CONTENT WHICH DIFFERENTIATES SCIENTIFIC FROM MOST
POLITICAL, LEGISLATIVE AND LEGAL LANGUAGE. 

A "FOREIGN COUNTRY" IN WHICH THE UNITED STATES HAS NO TERRITORIAL
CONTROL DOES NOT BEAR THE SAME RELATION TO THE UNITED STATES AS A
"FOREIGN COUNTRY" IN WHICH THE UNITED STATES DOES HAVE THE TERRITORIAL
CONTROL THAT IT HAS IN THE AIR BASE IN NEWFOUNDLAND.  IN THE ENTANGLING
RELATIONSHIPS BETWEEN SUCH NATIONS AS GREAT BRITAIN AND THIS COUNTRY,
IT IS NOT COMPELLING THAT "FOREIGN COUNTRY" MEANS TODAY WHAT IT MAY
HAVE MEANT IN THE DAYS OF CHIEF JUSTICE MARSHALL, OR EVEN IN THOSE OF
MR. JUSTICE BROWN.  THE VERY CONCEPT OF "SOVEREIGNTY" IS IN A STATE OF
MORE OR LESS SOLUTION THESE DAYS.  TO FIND A SINGLE AND UNDEVIATING
CONTENT FOR "FOREIGN COUNTRY" NECESSARILY EXCLUDING THESE BASES, WHILE
"POSSESSIONS" OF THE UNITED STATES IS TO BE DEEMED AS NECESSARILY
INCLUDING THEM, DESPITE THE MOMENTUM OF HISTORIC MEANING AND EXPERIENCE
LEADING TO A CONTRARY SIGNIFICANCE OF "POSSESSIONS," IS TO GIVE THE
APPEARANCE OF LOGICALLY COMPULSIVE FORCE TO DECISIONS.  IT FAILS TO
RECOGNIZE THE SCOPE OF SUPPLE WORDS THAT ARE THE RAW MATERIALS OF
LEGISLATION AND ADJUDICATION AND IS UNMINDFUL OF THOSE CONSIDERATIONS
OF POLICY WHICH UNDERLIE, CONSCIOUSLY OR UNCONSCIOUSLY, SEEMINGLY
VARIANT DECISIONS.  WHEN SO MANY ABLE JUDGES CAN SO MISCONCEIVE THE
IMPLICATIONS OF OUR DECISION IN VERMILYA-BROWN CO. V. CONNELL, SUPRA,
AS THEY HAVE BEEN FOUND TO MISCONCEIVE THEM, THE SOURCE OF DIFFICULTY
CANNOT BE WHOLLY WITH THESE ABLE LOWER COURT JUDGES.    THE
CONSIDERATIONS THAT LED ME TO JOIN IN THE DISSENT IN VERMILYA-BROWN CO.
V. CONNELL, SUPRA, LEAD ME TO CONCUR WITH THE COURT'S CONSTRUCTION OF
THE TORT CLAIMS ACT IN THIS CASE. 

MR. JUSTICE JACKSON, CONCURRING. 

I REACH THE SAME RESULT; BUT I COULD HARDLY DO SO, AS DOES THE COURT,
BY REITERATION OF THE PREVAILING OPINION IN VERMILYA-BROWN CO. V.
CONNELL, 335 U.S. 377.  THAT DECISION, TAKEN WITH THE PRESENT ONE, ADDS
UP TO THIS:  IF AN EMPLOYEE SHOULD CHANCE TO WORK OVERTIME ON A LEASED
AIR BASE, HE CAN MAINTAIN AN ACTION FOR EXTRA WAGES, PENALTIES AND
INTEREST, BECAUSE THE COURT FINDS THE AIR BASE TO BE A "POSSESSION" OF
THE UNITED STATES.  HOWEVER, IF HE IS INJURED AT THE SAME PLACE, HE MAY
NOT PROCEED UNDER THE TORT CLAIMS ACT TO RECOVER, BECAUSE THE COURT
FINDS THE AIR BASE THEN TO BE A "FOREIGN COUNTRY."  TO THOSE
UNINITIATED IN MODERN METHODS OF STATUTORY CONSTRUCTION IT MAY SEEM A
SOMEWHAT ESOTERIC DOCTRINE THAT THE SAME PLACE AT THE SAME TIME MAY
LEGALLY BE BOTH A POSSESSION OF THE UNITED STATES AND A FOREIGN
COUNTRY.  THIS DISPARITY RESULTS FROM HOLDING THAT CONGRESS, WHEN IT
REFERS TO OUR LEASED AIR BASES, AT ONE TIME CALLS THEM "POSSESSIONS"
AND AT ANOTHER "FOREIGN COUNTRIES."  WHILE CONGRESSIONAL INCOHERENCE OF
THOUGHT OR OF SPEECH IS NOT UNCONSTITUTIONAL AND CONGRESS CAN USE A
CONTRARIETY OF TERMS TO DESCRIBE THE SAME THING, WE SHOULD PAY CONGRESS
THE RESPECT OF NOT ASSUMING LIGHTLY THAT IT INDULGES IN INCONSISTENCIES
OF SPEECH WHICH MAKE THE ENGLISH LANGUAGE ALMOST MEANINGLESS.  THERE IS
SOME REASON TO THINK THE INCONSISTENCY LIES IN THE COURT'S RENDERING OF
THE STATUTES RATHER THAN IN THE WAY CONGRESS HAS WRITTEN THEM.  AT ALL
EVENTS, THE PRESENT DECISION SEEMS TO ME CORRECT, AND, SO FAR AS IT IS
CONTRADICTED BY THE EFFECT OF VERMILYA-BROWN, I THINK WE SHOULD RETREAT
FROM THE LATTER. 
..END :



ROTH V. DELANO, 338 U.S. 226 


NO. 24.  ARGUED OCTOBER 14, 1949.  - DECIDED NOVEMBER 7, 1949.  - 170
F.2D 966, JUDGMENT VACATED AND CAUSE REMANDED. 


THE ATTORNEY GENERAL OF MICHIGAN BROUGHT AN ACTION IN A FEDERAL
DISTRICT COURT IN MICHIGAN AGAINST THE COMPTROLLER OF THE CURRENCY AND
THE RECEIVER OF AN INSOLVENT NATIONAL BANK LOCATED IN MICHIGAN FOR A
DECLARATORY JUDGMENT THAT THE MICHIGAN DISCOVERY AND ESCHEAT STATUTE,
AS AMENDED IN 1941, APPLIES TO UNCLAIMED DIVIDENDS ON CLAIMS DULY
PROVED IN LIQUIDATION.  THE COURT OF APPEALS AFFIRMED THE DISTRICT
COURT'S DISMISSAL OF THE ACTION "ON THE MERITS"; BUT IT WAS NOT CLEAR
WHETHER IT DID SO UPON THE GROUND THAT THE MICHIGAN STATUTE WAS
UNCONSTITUTIONAL OR UPON THE GROUND THAT IT WAS NOT INTENDED TO APPLY
TO RECEIVERSHIPS BEGUN BEFORE ITS ENACTMENT.  MOREOVER, THE 1941
AMENDMENT HAS BEEN REPEALED, WITH THE POSSIBLE CONSEQUENCE THAT NO NEW
SUIT COULD BE MAINTAINED TO ENFORCE IT.  HELD:  JUDGMENT VACATED AND
THE CAUSE REMANDED FOR APPROPRIATE ACTION IN THE LIGHT OF THIS
OPINION.  PP. 227-231. 

(A)  SINCE AN EARLIER DECISION OF THE COURT BELOW HOLDING THE
MICHIGAN ESCHEAT LAW UNCONSTITUTIONAL AS APPLIED TO NATIONAL BANKS,
THIS COURT HAS HELD, IN EFFECT, THAT THE CONSTITUTION OF THE UNITED
STATES DOES NOT PROHIBIT A STATE FROM ESCHEATING DEPOSITS IN A NATIONAL
BANK LOCATED AND ACTIVELY DOING BUSINESS THEREIN, ABANDONED BY THEIR
OWNERS OR BELONGING TO MISSING PERSONS.  ANDERSON NATIONAL BANK V.
LUCKETT, 321 U.S. 233.  PP. 229-231. 

(B)  IF THE DECISION BELOW RESTS UPON EARLIER DECISIONAL LAW OF THE
CIRCUIT HOLDING THAT THE MICHIGAN ESCHEAT LAW WAS NOT INTENDED TO APPLY
TO RECEIVERSHIPS BEGUN BEFORE ITS ENACTMENT, THIS COURT WOULD HARDLY
REVIEW SUCH CONSTRUCTION OF THE STATE ACT.  P. 231. 

(C)  THE 1941 AMENDMENT TO THE MICHIGAN ESCHEAT ACT HAVING BEEN
REPEALED SINCE THIS ACTION WAS BROUGHT, TO NOW DECIDE THIS SUIT FOR A
DECLARATORY JUDGMENT BASED THEREON MIGHT BE TO RENDER AN ADVISORY
JUDGMENT ON THE CONSTITUTIONALITY OF A REPEALED STATE ACT, EVEN THOUGH
THE REPEAL PURPORTED NOT TO AFFECT ANY "PENDING SUIT OR PROCEEDING." 
P. 231. 

ROTH, ATTORNEY GENERAL OF MICHIGAN, V. DELANO, COMPTROLLER OF THE
CURRENCY, ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

A FEDERAL DISTRICT COURT DISMISSED A SUIT BROUGHT BY THE ATTORNEY
GENERAL OF MICHIGAN AGAINST THE COMPTROLLER OF THE CURRENCY AND THE
RECEIVER OF AN INSOLVENT NATIONAL BANK FOR A DECLARATORY JUDGMENT THAT
THE MICHIGAN DISCOVERY AND ESCHEAT STATUTE (MICH. COMP. LAWS, 1929,
MASON'S 1940 CUM. SUPP., C. 263, AS AMENDED BY MICH. PUBLIC ACT NO. 170
OF 1941) APPLIES TO UNCLAIMED DIVIDENDS ON CLAIMS DULY PROVED IN
LIQUIDATION.  THE COURT OF APPEALS AFFIRMED.  170 F.2D 966.  ON APPEAL
TO THIS COURT, JUDGMENT VACATED AND CAUSE REMANDED, P. 231. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE FIRST NATIONAL BANK - DETROIT CLOSED ITS DOORS IN 1933 AND, IN
ITS LIQUIDATION, DIVIDENDS ON PROVED CLAIMS, SMALL IN AVERAGE BUT LARGE
IN THE AGGREGATE, HAVE REMAINED FOR SOME YEARS IN THE HANDS OF THE
FEDERAL LIQUIDATORS, UNCLAIMED BY THEIR OWNERS.  SINCE THIS NATIONAL
BANKING INSTITUTION WAS LOCATED IN THE STATE OF MICHIGAN, ATTORNEYS
GENERAL OF THAT STATE HAVE MADE PERSISTENT EFFORTS AT DIFFERENT STAGES
OF THE LIQUIDATION TO ESTABLISH A RIGHT IN THE STATE TO ESCHEAT THE
UNCLAIMED DIVIDENDS.  LATEST OF THESE WAS THIS ACTION, BROUGHT BY THE
ATTORNEY GENERAL AGAINST THE COMPTROLLER OF THE CURRENCY OF THE UNITED
STATES  FN1  AND THE RECEIVER OF THE FIRST NATIONAL BANK - DETROIT, FOR
A DECLARATORY JUDGMENT THAT THE MICHIGAN DISCOVERY AND ESCHEAT STATUTE
(MICHIGAN COMPILED LAWS, 1929, MASON'S 1940 CUM. SUPP., C. 263), AS
AMENDED BY THE STATUTE KNOWN AS ACT 170, PUBLIC ACTS OF MICHIGAN FOR
1941, APPLIES TO UNCLAIMED DIVIDENDS ON CLAIMS DULY PROVED IN THE
LIQUIDATION.  THE COURT OF APPEALS HELD THE STATE STATUTE INEFFECTIVE
AS "AN UNLAWFUL INTERFERENCE WITH THE LIQUIDATION OF A NATIONAL BANK
UPON THE SAME PRINCIPLES AND AUTHORITY FULLY DISCUSSED IN OUR PREVIOUS
OPINIONS."  IT AFFIRMED THE DISTRICT COURT IN DISMISSING THE ACTION "ON
THE MERITS," ADOPTING THE "SETTLED DOCTRINE" OF ITS OWN PRIOR
ADJUDICATIONS.  170 F.2D 966.  HOWEVER, RECOURSE TO THESE OPINIONS
CREATES SOME DOUBT AS TO WHETHER THE COURT OF APPEALS HAS HELD THE
MICHIGAN STATUTE TO BE INVALID FOR CONFLICT WITH THE CONSTITUTION AND
LAWS OF THE UNITED STATES OR INAPPLICABLE BY INTENDMENT OF THE MICHIGAN
LEGISLATURE.  A REVIEW OF THESE CITED CASES WILL EXPOSE THE CAUSE OF
OUR UNCERTAINTY. 

IN STARR V. O'CONNOR, 118 F.2D 548(1941), THE THEN CIRCUIT COURT OF
APPEALS REVIEWED THE STATUTES OF MICHIGAN THEN IN FORCE, WHICH DID NOT
INCLUDE ACT 170, HERE INVOLVED, AND HELD THEM APPLICABLE TO THE FIRST
NATIONAL LIQUIDATION BUT UNCONSTITUTIONAL UNDER OUR DECISION IN FIRST
NATIONAL BANK OF SAN JOSE V. CALIFORNIA, 262 U.S. 366. 

IN RUSHTON V. SCHRAM, 143 F.2D 554(1944), THE COURT CONSIDERED
WHETHER THE AMENDMENT EFFECTED BY ACT 170 WAS APPLICABLE TO THE FIRST
NATIONAL RECEIVERSHIP AT THAT STAGE OF THE LIQUIDATION.  THE COURT SAID
THAT IT MUST DETERMINE AT THE THRESHOLD WHETHER THIS ACT SHOULD BE
CONSTRUED AS RETROACTIVE IN EFFECT; THAT IS, WHETHER IT APPLIED TO A
LIQUIDATION COMMENCED BEFORE ITS PASSAGE.  THIS, OF COURSE, WAS A STATE
LAW QUESTION AND IT WAS DECIDED BY REFERENCE TO STATE DECISIONS.  THE
COURT CONSTRUED THE ACT, IN THE LIGHT OF MICHIGAN DECISIONAL LAW, NOT
TO APPLY RETROACTIVELY.  IT IS TRUE THAT THE COURT THERE REVIEWED
FEDERAL DECISIONS TO SHOW THAT IT WOULD RAISE A SERIOUS QUESTION OF
CONSTITUTIONALITY IF THE ACT WERE CONSTRUED OTHERWISE.  BUT ANDERSON
NATIONAL BANK V. LUCKETT, 321 U.S. 233, HAD INTERVENED AND IN REFERENCE
TO IT THE COURT OF APPEALS SAID, "IN THE LIGHT OF THAT FRESH AUTHORITY,
WE DO NOT SAY THAT IF INVOKED FOR PROSPECTIVE APPLICATION, AND IN A
MANNER CONSISTENT WITH THE FEDERAL STATUTES, THE MICHIGAN STATUTE WOULD
CONFLICT WITH THE NATIONAL BANKING LAWS AND CONSTITUTE AN UNLAWFUL
INTERFERENCE WITH THE LIQUIDATION OF A NATIONAL BANK.  DISCUSSION OF
THAT PROBLEM IS DEEMED INAPPROPRIATE IN VIEW OF OUR CONCLUSION THAT THE
ACT UNDER CONSIDERATION CARRIES NO RETROACTIVE EFFECT IN THE PRESENT
SITUATION."  143 F.2D AT 559. 

IN STARR V. SCHRAM, 143 F.2D 561(1944), THE COURT OF APPEALS ON THE
SAME DAY PASSED ON THE RECEIVER'S REQUEST FOR A DECLARATION THAT THE
ESCHEAT LAWS WERE AT NO TIME VALIDLY APPLICABLE TO THE RECEIVERSHIP AND
THAT HE WAS ENTITLED TO RECOVER BACK CERTAIN DORMANT DEPOSIT BALANCES
AND THE DIVIDENDS THEREON WHICH ALREADY HAD BEEN PAID OVER TO THE STATE
PURSUANT TO THE ACT.  THE DISTRICT COURT HAD HELD THAT THE STATE
STATUTE WAS INVALID AS AN "UNLAWFUL INTERFERENCE" WITH THE FEDERAL
LIQUIDATION.  THIS HOLDING THE COURT OF APPEALS AFFIRMED BUT, ON
CONSIDERATIONS OF STATE IMMUNITY FROM SUIT, IT REFUSED TO ALLOW
RECOVERY OF WHAT HAD BEEN PAID OVER. 

NOW COMES BLACK V. DELANO - THE PRESENT CASE, ROTH BEING SUBSTITUTED
FOR BLACK - 170 F.2D 966(1948), WHICH THE COURT OF APPEALS RESTS ON THE
"SETTLED DOCTRINE" OF THESE CASES. 

ANDERSON NATIONAL BANK V. LUCKETT, SUPRA, IN SUBSTANCE, HELD THAT THE
CONSTITUTION OF THE UNITED STATES DOES NOT PROHIBIT A STATE FROM
ESCHEATING DEPOSITS IN A NATIONAL BANK LOCATED AND ACTIVELY DOING
BUSINESS THEREIN, ABANDONED BY THEIR OWNERS OR BELONGING TO MISSING
PERSONS.  THE STATE, AFTER A REASONABLE LAPSE OF TIME MAY LAWFULLY
ADMINISTER SUCH ASSETS, HOLDING THEM FOR THE BENEFIT OF THE DISAPPEARED
CLAIMANT OR THE MISSING OWNER FOR A PERIOD AND PROVIDING FOR EVENTUAL
ESCHEAT.  THIS IT MAY DO THROUGH APPOINTMENT OF A PERSONAL
REPRESENTATIVE, OR A PUBLIC ADMINISTRATOR, OR BY UTILIZING ITS OWN
PUBLIC OFFICIALS.  WE HELD THAT MERE PUTTING OF THE STATE ITSELF, OR
ITS DULY NAMED OFFICER, IN THE SHOES OF THE CLAIMANT TO TAKE WHAT THE
BANK WOULD OTHERWISE BE OBLIGED TO DISBURSE TO THE CLAIMANT HIMSELF
DOES NOT BURDEN, OBSTRUCT OR FRUSTRATE A GOING BANK IN DISCHARGING ITS
FEDERAL FUNCTIONS.  WE ALSO HELD NO INTERFERENCE WITH A BANK'S FEDERAL
FUNCTION TO RESULT FROM A MERE REQUIREMENT THAT IT MAKE A REPORT TO THE
STATE OF UNCLAIMED PROPERTY, ANY MORE THAN FROM A REQUIREMENT THAT IT
REPORT TO THE STATE TANGIBLE PROPERTY THEREIN FOR THE PURPOSES OF
TAXATION, AND NOTHING IN OUR DECISIONS SUGGESTS THAT SUCH A DISCLOSURE
WOULD BE AN INTERFERENCE WITH THE LIQUIDATION FUNCTION.  IT WOULD NOT
SEEM TOO MUCH TO ASK THAT A FEDERAL OFFICER, POSSESSED OF PROPERTY
CLAIMED BY THE STATE TO BE SUBJECT TO ITS TAXING OR ESCHEAT POWER, MAKE
REASONABLE DISCLOSURE THEREOF TO SUCH AUTHORITY AS THE STATE
DESIGNATES.  IT IS BUT A DECENT COMITY BETWEEN GOVERNMENTS. 

OF COURSE, THESE BASIC AND GENERAL RIGHTS OF THE STATE, INCLUDING THE
ENFORCEMENT OF ITS CLAIMS, MIGHT BE ASSERTED AT A TIME, IN A MANNER OR
THROUGH SUCH MEANS AS TO INTERFERE WITH THE FEDERAL FUNCTION OF ORDERLY
LIQUIDATION OR TO CONFLICT WITH FEDERAL LAW; BUT ABSENT SUCH
INTERFERENCE WITH A FEDERAL STATUTE, THE BASIC ASSUMPTION OF THE STATE
HERE THAT NOTHING IN THE CONSTITUTION PREVENTS IT FROM ESCHEATING THE
SPECIFIC CLAIMS HERE INVOLVED IS MADE CLEAR IN OUR RECENT DECISIONS. 
ANDERSON NATIONAL BANK V. LUCKETT, SUPRA.  SEE ALSO CONNECTICUT MUTUAL
LIFE INSURANCE CO. V. MOORE, 333 U.S. 541. 

REITERATION OF THESE GENERAL PRINCIPLES DOES NOT, OF COURSE,
DETERMINE WHETHER ANY PECULIARITY IN THE OPERATION OF ACT 170 WOULD GO
BEYOND THE RIGHT OF THE STATE AND CONSTITUTE AN UNREASONABLE BURDEN ON
FEDERAL FUNCTIONS OF THE RECEIVER.  BUT THIS QUESTION IS NOT
APPROPRIATE FOR DECISION HERE.  IF THE JUDGMENT BELOW RESTS, AS WELL IT
MAY, UPON EARLIER DECISIONAL LAW OF THE CIRCUIT WHICH HELD THAT THIS
ACT WAS NOT INTENDED TO APPLY TO RECEIVERSHIPS BEGINNING BEFORE ITS
ENACTMENT, WE WOULD HARDLY REVIEW SUCH CONSTRUCTION OF THE STATE ACT. 
AND THERE IS A FURTHER REASON WHY WE SHOULD NOT NOW DECIDE THE
PRINCIPAL QUESTION.  MICHIGAN HAS REPEALED ACT NO. 170 BY ACT 329,
PUBLIC ACTS OF MICHIGAN FOR 1947, RESERVING, HOWEVER, FROM THE EFFECT
OF THE REPEAL ANY "PENDING SUIT OR PROCEEDING."  A POSSIBLE CONSEQUENCE
IS THAT NO NEW SUIT OR PROCEEDING COULD BE MAINTAINED TO ENFORCE THE
REPEALED ACT.  THUS, TO NOW DECIDE THIS SUIT FOR A DECLARATORY JUDGMENT
MIGHT BE TO RENDER AN ADVISORY OPINION ON THE CONSTITUTIONALITY OF A
REPEALED STATE ACT.  AND, OF COURSE, A STATE CANNOT BY RESERVATION, ANY
MORE THAN BY AFFIRMATION, CONFER UPON US THE POWER OR IMPOSE UPON US
THE DUTY TO RENDER AN ADVISORY OPINION. 

IN VIEW OF THESE CONSIDERATIONS, WE VACATE AND REMAND TO THE COURT OF
APPEALS FOR SUCH ACTION AS IT MAY CONSIDER APPROPRIATE IN THE LIGHT OF
THE FOREGOING OPINION.  JUDGMENT VACATED. 

FN1  THE TRIAL COURT DISMISSED AS TO THE COMPTROLLER ON THE GROUND IT
HAD NO JURISDICTION OVER HIM AND THE COURT OF APPEALS DID NOT PASS ON
THE CONTENTION THAT HE IS A NECESSARY PARTY.  170 F.2D 966, 967. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :

















GRAHAM V. BROTHERHOOD OF FIREMEN, 338 U.S. 232 


NO. 16.  ARGUED OCTOBER 10, 1949.  - DECIDED NOVEMBER 7, 1949.  - 84
U.S. APP. D.C. 67, 175 F.2D 802, REVERSED. 


PETITIONERS, NEGRO LOCOMOTIVE FIREMEN, BROUGHT SUIT IN THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA AGAINST AN UNINCORPORATED LABOR
ORGANIZATION WHICH, UNDER THE RAILWAY LABOR ACT, WAS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF THE CRAFT OR CLASS OF RAILWAY EMPLOYEES TO
WHICH THEY BELONGED.  THEY SOUGHT INJUNCTIVE AND OTHER RELIEF AGAINST
THE ENFORCEMENT OF AGREEMENTS BETWEEN THE LABOR ORGANIZATION AND
VARIOUS RAILROADS WHICH, IN MATTERS OF JOB ASSIGNMENTS AND PROMOTIONS,
DISCRIMINATED AGAINST THEM BECAUSE OF THEIR RACE.  THE DISTRICT COURT
DENIED A MOTION TO DISMISS AND GRANTED A PRELIMINARY INJUNCTION. 
HOLDING THAT VENUE WAS IMPROPERLY LAID IN THE DISTRICT OF COLUMBIA, THE
COURT OF APPEALS REVERSED AND ORDERED THE CASE TRANSFERRED TO ANOTHER
DISTRICT.  HELD: 

1.  THE RULING OF THE DISTRICT COURT THAT THE SERVICE OF PROCESS ON
THE LABOR ORGANIZATION WAS VALID, WHICH RULING WAS UNDISTURBED AND
IMPLIEDLY APPROVED BY THE COURT OF APPEALS, IS ACCEPTED HERE.  P. 235. 

2.  THE VENUE STATUTE APPLICABLE TO THE COURTS OF THE DISTRICT OF
COLUMBIA, D.C. CODE SEC. 11-308, WHICH PERMITS AN ACTION TO BE
MAINTAINED IF THE DEFENDANT SHALL BE "FOUND" WITHIN THE DISTRICT, WAS
AVAILABLE TO THE PETITIONERS IN THIS CASE AND THE GENERAL VENUE STATUTE
WAS NOT EXCLUSIVE.  PP. 235-237. 

(A)  A PARTY ASSERTING A RIGHT UNDER THE CONSTITUTION OR FEDERAL LAWS
MAY INVOKE EITHER THE GENERAL VENUE STATUTES OR THE SPECIAL DISTRICT OF
COLUMBIA STATUTES AND THE COURTS OF THE DISTRICT MAY EXERCISE THEIR
AUTHORITY IN CASES COMMITTED TO THEM BY EITHER.  P. 237. 

3.  THE DISTRICT COURT HAD JURISDICTION TO ENFORCE BY INJUNCTION
PETITIONERS' RIGHTS TO NONDISCRIMINATORY REPRESENTATION BY THEIR
STATUTORY REPRESENTATIVE.  PP. 237-240. 

(A)  THE JURISDICTION OF THE DISTRICT COURT TO GRANT RELIEF BY
INJUNCTION IN THIS CASE IS NOT IMPAIRED BY THE NORRIS-LAGUARDIA ACT. 
VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515.  PP. 237-238,
240. 

(B)  THE RAILWAY LABOR ACT IMPOSES UPON AN EXCLUSIVE BARGAINING
REPRESENTATIVE THE DUTY TO REPRESENT ALL MEMBERS OF THE CRAFT WITHOUT
RACIAL DISCRIMINATION AND FEDERAL COURTS AT THE SUIT OF A RACIAL
MINORITY OF THE CRAFT WILL ENFORCE THAT DUTY.  STEELE V. L. & N.R. CO.,
323 U.S. 192; TUNSTALL V. BROTHERHOOD OF FIREMEN, 323 U.S. 210.  PP.
238-240. 

GRAHAM ET AL. V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PETITIONERS SUED FOR INJUNCTIVE AND OTHER RELIEF AGAINST A LABOR
ORGANIZATION AND OTHERS.  THE DISTRICT COURT DENIED A MOTION TO DISMISS
AND GRANTED A PRELIMINARY INJUNCTION.  THE LABOR ORGANIZATION ALONE
APPEALED.  THE COURT OF APPEALS REVERSED, HOLDING VENUE IMPROPERLY LAID
IN THE DISTRICT OF COLUMBIA.  84 U.S. APP. D.C. 67, 175 F.2D 802.  THIS
COURT GRANTED CERTIORARI.  337 U.S. 954.  REVERSED AND REMANDED, P.
240. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

TWENTY-ONE NEGRO FIREMEN, SOMETIME EMPLOYED BY SOUTHERN RAILROADS,
BROUGHT THIS SUIT AGAINST THE PRINCIPAL DEFENDANT, THE BROTHERHOOD OF
LOCOMOTIVE FIREMEN AND ENGINEMEN, THREE RAILROADS, TWO LOCAL LODGES OF
THE BROTHERHOOD, AND CERTAIN OFFICERS OF THOSE LODGES.  THE COMPLAINT
ALLEGES IN SUBSTANCE THAT THE BROTHERHOOD IS AN EXCLUSIVELY WHITE MAN'S
UNION AND, AS IT INCLUDES A MAJORITY OF THE CRAFT, IT IS POSSESSED OF
SOLE COLLECTIVE BARGAINING POWER IN BEHALF OF THE ENTIRE CRAFT
INCLUDING THE NEGRO FIREMEN IN CONSEQUENCE OF THE RAILWAY LABOR ACT. 
IT HAS NEGOTIATED AGREEMENTS AND ARRANGEMENTS WITH THE SOUTHERN
RAILROADS WHICH DISCRIMINATE AGAINST COLORED FIREMEN, WHO ARE
DENOMINATED "NOT-PROMOTABLE" WHILE WHITE ONES ARE "PROMOTABLE."  THE
EFFECT OF THE AGREEMENTS IS TO DEPRIVE THEM, SOLELY BECAUSE OF THEIR
RACE, OF RIGHTS AND JOB ASSIGNMENTS TO WHICH THEIR SENIORITY WOULD
ENTITLE THEM.  MANY NEGRO FIREMEN HAVE BEEN THUS DISPLACED OR DEMOTED
AND REPLACED BY WHITE FIREMEN HAVING LESS SENIORITY.  THE COMPLAINT
ASKED FOR A DECLARATION OF PETITIONERS' RIGHTS, FOR AN INJUNCTION
RESTRAINING COMPLIANCE WITH THE ABOVE AGREEMENTS, AND FOR DAMAGES.  IN
SHORT, THE CAUSE OF ACTION PLEADED IS SUBSTANTIALLY THE SAME AS THAT
WHICH THIS COURT SUSTAINED IN STEELE V. LOUISVILLE & NASHVILLE R. CO.,
323 U.S. 192, AND TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND
ENGINEMEN, 323 U.S. 210. 

IT IS NEEDLESS TO RECITE ADDITIONAL DETAILS OF THE PRESENT CASE. 
WHAT IT ADDS TO THE GOVERNING FACTS OF THE EARLIER CASES IS A
CONTINUING AND WILLFUL DISREGARD OF RIGHTS WHICH THIS COURT IN
UNMISTAKABLE TERMS HAS SAID MUST BE ACCORDED TO NEGRO FIREMEN. 

UPON THE COMPLAINT, SUPPLEMENTED BY EVIDENCE THAT THE DELIBERATE
ELIMINATION OF NEGRO FIREMEN WAS PROCEEDING AT A RAPID PACE AND THAT
THEY WOULD SOON BE ENTIRELY DISPLACED, MOTION WAS MADE FOR A
PRELIMINARY INJUNCTION TO PREVENT FURTHER DISCRIMINATION AND LOSS OF
JOB ASSIGNMENTS PENDING THE OUTCOME OF THE LITIGATION. 

THE BROTHERHOOD DID NOT MEET THE ALLEGATIONS OF THE BILL OF COMPLAINT
OR THE AFFIDAVITS.  IT RESTED ON A MOTION TO DISMISS, ASSIGNING AS
GROUNDS THAT IT HAD NOT BEEN PROPERLY SERVED WITH PROCESS AND THAT
VENUE WAS UNLAWFULLY LAID IN THE DISTRICT OF COLUMBIA.  THE TRIAL
COURT, AFTER HEARING EVIDENCE OF THE PARTIES ON THESE MATTERS, DENIED
THE MOTION TO DISMISS AND GRANTED A PRELIMINARY INJUNCTION. 

THE BROTHERHOOD ALONE PETITIONED THE COURT OF APPEALS UNDER DISTRICT
OF COLUMBIA CODE, SEC. 17-101, FOR A SPECIAL APPEAL AND STAY OF THE
INJUNCTION.  THESE WERE GRANTED AND THAT COURT REVERSED.  HOLDING THAT
VENUE WAS IMPROPERLY LAID IN THE DISTRICT OF COLUMBIA, IT ORDERED THE
CASE TRANSFERRED TO THE NORTHERN DISTRICT OF OHIO.  84 U.S. APP. D.C.
67, 175 F.2D 802.  WE GRANTED CERTIORARI.  337 U.S. 954. 

AT THE OUTSET WE ARE MET BY THE CONTENTION IN SUPPORT OF THE JUDGMENT
BELOW THAT SERVICE OF PROCESS UPON THE BROTHERHOOD WAS NOT LEGALLY
PERFECTED, IN WHICH CASE, OF COURSE, IT WOULD NOT PROPERLY BE BEFORE
THE COURT AT ALL.  THE DISTRICT COURT, AFTER HEARING EVIDENCE UPON THE
SUBJECT, HELD THAT SERVICE UPON THE BROTHERHOOD WAS SUFFICIENT.  THE
COURT OF APPEALS NOTED THAT THIS QUESTION WAS RAISED BUT DID NOT
REVERSE UPON THIS GROUND.  INSTEAD, IT CONSIDERED AT LENGTH WHETHER THE
ACTION CONSTITUTIONALLY COULD BE ENTERTAINED BY THE COURTS OF THE
DISTRICT OF COLUMBIA, A SUBJECT WHICH WOULD HARDLY BE RIPE FOR DECISION
IF THE ACTION HAD NOT BEEN PROPERLY COMMENCED ANYWHERE.  MOREOVER, ITS
DECISION TRANSFERRED THE CAUSE TO THE NORTHERN DISTRICT OF OHIO, A
POWER WHICH IT COULD EXERT ONLY IF IT CONSIDERED THE SERVICE ADEQUATE
TO CONFER JURISDICTION OF THE PARTIES.  WE ACCEPT THE RULING OF THE
DISTRICT COURT ON THE ADEQUACY OF SERVICE, BASED AS IT IS ESSENTIALLY
ON MATTERS OF FACT, AND UNDISTURBED AND IMPLIEDLY APPROVED BY THE COURT
OF APPEALS.  WE HOLD THAT PERSONAL JURISDICTION OF THE RESPONDENT IS
ESTABLISHED. 

THIS CAUSE OF ACTION IS FOUNDED ON FEDERAL LAW, AND THE VENUE
PROVISION GENERALLY APPLICABLE TO FEDERAL COURTS AT THE TIME THIS
ACTION WAS COMMENCED REQUIRED SUCH ACTIONS TO BE BROUGHT IN THE
DISTRICT WHEREOF DEFENDANT "IS AN INHABITANT."  28 U.S.C. SEC. 112. 
EFFECTIVE SEPTEMBER 1, 1948, THIS PROVISION WAS MODIFIED TO REQUIRE
THAT SUCH ACTIONS BE BROUGHT "ONLY IN THE JUDICIAL DISTRICT WHERE ALL
DEFENDANTS RESIDE, EXCEPT AS OTHERWISE PROVIDED BY LAW."  28 U.S.C.
(SUPP. II) SEC. 1391(B).  IT WAS ASSUMED IN THE COURTS BELOW, AND SINCE
IT INVOLVES A QUESTION OF FACT WE DO NOT STOP TO INQUIRE AS TO WHETHER
THEY WERE CORRECT IN SO DOING, THAT IF THIS GENERAL FEDERAL VENUE
STATUTE IS THE SOLE AUTHORITY FOR BRINGING THIS CASE IN THE DISTRICT OF
COLUMBIA, THE VENUE COULD NOT BE SUPPORTED, AS THIS DEFENDANT CLAIMS
NEITHER TO RESIDE IN NOR TO INHABIT THE DISTRICT. 

BUT THERE IS, ADDITIONALLY, A VENUE STATUTE ENACTED BY CONGRESS,
APPLICABLE TO THE COURTS OF THE DISTRICT OF COLUMBIA, WHICH PERMITS AN
ACTION TO BE MAINTAINED IF THE DEFENDANT SHALL BE "AN INHABITANT OF, OR
FOUND WITHIN, THE DISTRICT."  D.C. CODE SEC. 11-308.  SEE ALSO SEC. 11
306.  THE DISTRICT COURT CONCLUDED UPON ALL THE EVIDENCE THAT THE
BROTHERHOOD WAS FOUND WITHIN THE DISTRICT, AND IT BASED VENUE UPON THAT
FINDING.  THE COURT OF APPEALS DID NOT DENY THAT THE DEFENDANT WAS SO
"FOUND" WITHIN THE MEANING OF THIS ACT, BUT HELD THE ACT ITSELF
UNAVAILING TO THIS PLAINTIFF BECAUSE IT BELIEVED THAT THE
CONSTITUTIONAL POWER OF CONGRESS UNDER ART. I, SEC. 8, CL. 17, TO
PROVIDE FOR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, DOES NOT ENABLE
CONGRESS TO VEST JURISDICTION OF SUCH CASES AS THIS IN DISTRICT OF
COLUMBIA COURTS.  IT BASED THIS REASONING ON O'DONOGHUE V. UNITED
STATES, 289 U.S. 516. 

LITTLE WOULD BE ACCOMPLISHED BY REVIEWING THE CONFLICTING THEORIES AS
TO THE ORIGIN AND EXTENT OF CONGRESSIONAL POWER OVER DISTRICT OF
COLUMBIA COURTS.  IT IS ENOUGH TO SAY THAT WE DO NOT READ ANY PRIOR
DECISION OF THIS COURT TO DENY CONGRESS POWER TO INVEST THESE COURTS
WITH JURISDICTION TO HEAR AND DECIDE SUCH A CAUSE AS WE HAVE HERE.  WE
HOLD THAT A PARTY ASSERTING A RIGHT UNDER THE CONSTITUTION OR FEDERAL
LAWS MAY INVOKE EITHER THE GENERAL VENUE STATUTES OR THE SPECIAL
DISTRICT OF COLUMBIA STATUTES AND THAT THE COURTS OF THIS DISTRICT MAY
EXERCISE THEIR AUTHORITY IN CASES COMMITTED TO THEM BY EITHER. 

THE RESPONDENT HAS STRENUOUSLY URGED THROUGHOUT THAT IN VIEW OF THE
PROVISIONS OF THE NORRIS-LAGUARDIA ACT, 29 U.S.C. SECS. 101 ET SEQ.,
THE DISTRICT COURT WAS WITHOUT JURISDICTION TO GRANT RELIEF BY
INJUNCTION. 

THE COURT OF APPEALS DID NOT PASS UPON THIS CONTENTION, AND WERE IT A
QUESTION OF FIRST IMPRESSION WE SHOULD NOT BE DISPOSED TO CONSIDER IT
HERE AT THE PRESENT STAGE OF THE PROCEEDINGS.  BUT THIS IS NOT A
QUESTION OF FIRST IMPRESSION.  IN VIRGINIAN R. CO. V. SYSTEM
FEDERATION, 300 U.S. 515, WE HELD THAT THE NORRIS-LAGUARDIA ACT DID NOT
DEPRIVE FEDERAL COURTS OF JURISDICTION TO COMPEL COMPLIANCE WITH
POSITIVE MANDATES OF THE RAILWAY LABOR ACT, 45 U.S.C. SECS. 151 ET
SEQ., ENACTED FOR THE BENEFIT AND PROTECTION, WITHIN A PARTICULAR
FIELD, OF THE SAME GROUPS WHOSE RIGHTS ARE PRESERVED BY THE NORRIS
LAGUARDIA ACT.  TO DEPART FROM THOSE VIEWS WOULD BE TO STRIKE FROM
LABOR'S HANDS THE SOLE JUDICIAL WEAPON IT MAY EMPLOY TO ENFORCE SUCH
MINORITY RIGHTS AS THESE PETITIONERS ASSERT AND WHICH WE HAVE HELD ARE
NOW SECURED TO THEM BY FEDERAL STATUTE.  TO HOLD THAT THIS ACT DEPRIVES
LABOR OF MEANS OF ENFORCING BARGAINING RIGHTS SPECIFICALLY ACCORDED BY
THE RAILWAY LABOR ACT WOULD INDEED BE TO "TURN THE BLADE INWARD."  WE
ADHERE TO THE VIEWS EXPRESSED IN THE VIRGINIAN CASE. 

BUT THE BROTHERHOOD URGES THAT THE CONTROVERSY IN THE VIRGINIAN CASE
DID NOT INVOLVE A LABOR DISPUTE WITHIN THE MEANING OF THE NORRIS
LAGUARDIA ACT AND THAT ACCORDINGLY THAT CASE MUST BE DISTINGUISHED ON
ITS FACTS.  THE ACT DEFINES A "LABOR DISPUTE" TO INCLUDE "ANY
CONTROVERSY CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING
THE ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING,
MAINTAINING, CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF
EMPLOYMENT  ...  "  29 U.S.C. SEC. 113(C).  WE DO NOT ACCEPT THE
BROTHERHOOD'S INVITATION TO NARROW THE MEANING OF THAT TERM.  THE
PURPOSE OF THE ACT WOULD BE VITIATED AND THE SCOPE OF ITS PROTECTION
LIMITED WERE IT TO BE CONSTRUED AS NOT EXTENDING TO EFFORTS OF A DULY
CERTIFIED BARGAINING AGENT TO OBTAIN RECOGNITION BY AN EMPLOYER. 
MOREOVER, IF THIS COURT HAD CONSIDERED THAT A LABOR DISPUTE WAS NOT
INVOLVED, IT WOULD HARDLY HAVE TAKEN THE TROUBLE, IN THE VIRGINIAN
CASE, TO REFUTE CONTENTIONS BASED UPON PARTS OF THE ACT, WHICH AS A
WHOLE EXTENDS ITS PROTECTION SOLELY TO SUCH DISPUTES. 

THE STEELE AND TUNSTALL CASES, SUPRA, AROSE UNDER CIRCUMSTANCES
ALMOST INDISTINGUISHABLE FROM THOSE OF THE INSTANT CASE, AND THE
COMPLAINTS ASKED THE SAME KIND OF RELIEF.  WE HELD THERE THAT, AS THE
EXCLUSIVE STATUTORY REPRESENTATIVE OF THE ENTIRE CRAFT UNDER THE
RAILWAY LABOR ACT, THE BROTHERHOOD COULD NOT BARGAIN FOR THE DENIAL OF
EQUAL EMPLOYMENT AND PROMOTION OPPORTUNITIES TO A PART OF THE CRAFT
UPON GROUNDS OF RACE.  WE POINTED OUT THAT THE STATUTE WHICH GRANTS THE
MAJORITY EXCLUSIVE REPRESENTATION FOR COLLECTIVE BARGAINING PURPOSES
STRIPS MINORITIES WITHIN THE CRAFT OF ALL POWER OF SELF-PROTECTION, FOR
NEITHER AS GROUPS NOR AS INDIVIDUALS CAN THEY ENTER INTO BARGAINING
WITH THE EMPLOYERS ON THEIR OWN BEHALF.  ORDER OF RAILROAD TELEGRAPHERS
V. RAILWAY EXPRESS AGENCY, 321 U.S. 342; J.I. CASE CO. V. LABOR BOARD,
321 U.S. 332; MEDO PHOTO SUPPLY CORP. V. LABOR BOARD, 321 U.S. 678. 
AND WE HELD THAT ABUSE OF ITS POWERS BY PERPETRATING DISCRIMINATORY
EMPLOYMENT PRACTICES BASED ON RACIAL CONSIDERATIONS GIVES RISE TO A
CAUSE OF ACTION UNDER FEDERAL LAW WHICH FEDERAL COURTS WILL ENTERTAIN
AND WILL REMEDY BY INJUNCTION.  BUT ALTHOUGH THE NORRIS-LAGUARDIA ACT
RELATES TO THE JURISDICTION OF THE FEDERAL COURTS TO GRANT INJUNCTIONS
IN LABOR DISPUTES, THE ISSUE WAS NOT PRESSED, AND WE DID NOT DISCUSS IT
AT LENGTH. 

HOWEVER, THE OPINION LEFT NO DOUBT AS TO THE COURT'S POSITION:  "IN
THE ABSENCE OF ANY AVAILABLE ADMINISTRATIVE REMEDY, THE RIGHT HERE
ASSERTED, TO A REMEDY FOR BREACH OF THE STATUTORY DUTY OF THE
BARGAINING REPRESENTATIVE TO REPRESENT AND ACT FOR THE MEMBERS OF A
CRAFT, IS OF JUDICIAL COGNIZANCE.  THAT RIGHT WOULD BE SACRIFICED OR
OBLITERATED IF IT WERE WITHOUT THE REMEDY WHICH COURTS CAN GIVE FOR
BREACH OF SUCH A DUTY OR OBLIGATION AND WHICH IT IS THEIR DUTY TO GIVE
IN CASES IN WHICH THEY HAVE JURISDICTION.   ...  FOR THE PRESENT
COMMAND THERE IS NO MODE OF ENFORCEMENT OTHER THAN RESORT TO THE
COURTS, WHOSE JURISDICTION AND DUTY TO AFFORD A REMEDY FOR A BREACH OF
STATUTORY DUTY ARE LEFT UNAFFECTED.  THE RIGHT IS ANALOGOUS TO THE
STATUTORY RIGHT OF EMPLOYEES TO REQUIRE THE EMPLOYER TO BARGAIN WITH
THE STATUTORY REPRESENTATIVE OF A CRAFT, A RIGHT WHICH THIS COURT HAS
ENFORCED AND PROTECTED BY ITS INJUNCTION IN TEXAS & NEW ORLEANS R. CO.
V. BROTHERHOOD OF CLERKS (281 U.S. 548), 556-557, 560, AND IN VIRGINIAN
R. CO. V. SYSTEM FEDERATION, SUPRA, 548, AND LIKE IT IS ONE FOR WHICH
THERE IS NO AVAILABLE ADMINISTRATIVE REMEDY."  STEELE V. LOUISVILLE &
NASHVILLE R. CO., SUPRA, 207.  AND SEE TUNSTALL V. BROTHERHOOD OF
LOCOMOTIVE FIREMEN AND ENGINEMEN, SUPRA, 213. 

IT WOULD SERVE NO PURPOSE TO REVIEW AT LENGTH THE REASONS WHICH, IN
THE STEELE AND TUNSTALL CASES, SUPRA, IMPELLED US TO CONCLUDE THAT THE
RAILWAY LABOR ACT IMPOSES UPON THE BROTHERHOOD THE DUTY TO REPRESENT
ALL MEMBERS OF THE CRAFT WITHOUT DISCRIMINATION AND INVESTS A RACIAL
MINORITY OF THE CRAFT WITH THE RIGHT TO ENFORCE THAT DUTY.  IT SUFFICES
TO SAY THAT WE REITERATE THAT SUCH IS THE LAW. 

NOR DOES THE NORRIS-LAGUARDIA ACT CONTAIN ANYTHING TO SUGGEST THAT IT
WOULD DEPRIVE THESE NEGRO FIREMEN OF RECOURSE TO EQUITABLE RELIEF FROM
ILLEGAL DISCRIMINATORY REPRESENTATION BY WHICH THERE WOULD BE TAKEN
FROM THEM THEIR SENIORITY AND ULTIMATELY THEIR JOBS.  CONVERSELY THERE
IS NOTHING TO SUGGEST THAT, IN ENACTING THE SUBSEQUENT RAILWAY LABOR
ACT PROVISIONS INSURING PETITIONERS' RIGHT TO NONDISCRIMINATORY
REPRESENTATION BY THEIR BARGAINING AGENT, CONGRESS INTENDED TO HOLD OUT
TO THEM AN ILLUSORY RIGHT FOR WHICH IT WAS DENYING THEM A REMEDY.  IF,
IN SPITE OF THE VIRGINIAN, STEELE, AND TUNSTALL CASES, SUPRA, THERE
REMAINS ANY ILLUSION THAT UNDER THE NORRIS-LAGUARDIA ACT THE FEDERAL
COURTS ARE POWERLESS TO ENFORCE THESE RIGHTS, WE DISPEL IT NOW.  THE
DISTRICT COURT HAS JURISDICTION TO ENFORCE BY INJUNCTION PETITIONERS'
RIGHTS TO NONDISCRIMINATORY REPRESENTATION BY THEIR STATUTORY
REPRESENTATIVE.    ACCORDINGLY, THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED, THE ORDER OF THE DISTRICT COURT IS REINSTATED, AND THE CAUSE
IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  LET THE MANDATE GO DOWN FORTHWITH. 
REVERSED AND REMANDED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MINTON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :

















MCGRATH V. MANUFACTURERS TR. CO., 338 U.S. 241 


ARGUED OCTOBER 12, 1949.  - DECIDED NOVEMBER 7, 1949.  - 169 F.2D 932,
AFFIRMED IN PART. 


1.  IN A SUMMARY PROCEEDING UNDER SEC. 17 OF THE TRADING WITH THE
ENEMY ACT TO ENFORCE AN ORDER OF THE ALIEN PROPERTY CUSTODIAN TO TURN
OVER TO HIM A FUND BELONGING TO AN ENEMY ALIEN, THE CUSTODIAN IS NOT
ENTITLED TO RECOVER INTEREST (AT 6% OR ANY OTHER RATE) FROM THE DATE OF
THE TURNOVER ORDER, WHERE SUCH INTEREST IS NOT A PART OF, OR AN
INCREMENT ON, THE FUND OWING TO THE ENEMY ALIEN.  PP. 246-249. 

(A)  SECTION 16 OF THE ACT PRESCRIBES FINES, SENTENCES AND
FORFEITURES AS SANCTIONS FOR WILLFUL VIOLATIONS OF VESTING ORDERS AND
TURNOVER DIRECTIVES; AND NOWHERE IN THE ACT IS THERE PROVISION FOR THE
ALLOWANCE OF INTEREST CHARGES IN CONNECTION WITH THESE SUMMARY
PROCEEDINGS.  PP. 247-248. 

(B)  IN SUCH A PROCEEDING, THE GOVERNMENT IS NOT IN THE POSITION OF A
CREDITOR COLLECTING A DEBT OWING TO ITSELF, AND IT IS NOT ENTITLED TO
INTEREST AS UPON A CONTRACTUAL OBLIGATION OR ONE ARISING OUT OF CUSTOMS
DUTIES OR TAXES.  P. 248. 

(C)  THERE IS NOT INVOLVED HERE ANY ISSUE REGARDING A CLAIM FOR
INTEREST CONSTITUTING A PART OF, OR AN INCREMENT ON, THE FUND OWING TO
THE ENEMY ALIEN.  PP. 248-249. 

2.  QUESTIONS WHICH WOULD HAVE BEEN PRESENTED IF THE ANSWER IN THE
SUMMARY PROCEEDING UNDER SEC. 17 HAD CONTAINED A DENIAL OF THE ALLEGED
DEBT, AN UNEQUIVOCAL PLEA OF SETOFF, OR A CLAIM OF A LIEN UPON THE
ENEMY CREDITOR'S INTEREST IN THE DEBT OR IN ITS PROCEEDS, NEED NOT HERE
BE CONSIDERED, SINCE THE ANSWER DID NOT PRESENT THOSE ISSUES.  PP. 249
250. 

MCGRATH, ATTORNEY GENERAL, AS SUCCESSOR TO THE ALIEN PROPERTY
CUSTODIAN, V. MANUFACTURERS TRUST CO. 

NO. 11.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT* . 

*TOGETHER WITH NO. 15, MANUFACTURERS TRUST CO. V. MCGRATH, ATTORNEY
GENERAL, AS SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, ALSO ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUMMARY PROCEEDING UNDER SEC. 17 OF THE TRADING WITH THE ENEMY
ACT, FOR ENFORCEMENT OF A TURNOVER DIRECTIVE OF THE ALIEN PROPERTY
CUSTODIAN, THE DISTRICT COURT DIRECTED THE BANK TO PAY TO THE CUSTODIAN
THE SUM OF $25,581.49, PLUS INTEREST AT 6% FROM THE DATE OF THE
TURNOVER DIRECTIVE.  THE COURT OF APPEALS DISALLOWED THE INTEREST BUT
OTHERWISE AFFIRMED.  169 F.2D 932.  PETITIONS FOR CERTIORARI BY BOTH
PARTIES WERE AT FIRST DENIED BY THIS COURT, 335 U.S. 910, BUT
SUBSEQUENTLY GRANTED, 337 U.S. 953.  NO. 11 AFFIRMED; NO. 15 VACATED,
P. 251. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

NUMBERS 11 AND 15 ARE CROSS APPEALS FROM CLARK V. MANUFACTURERS TRUST
CO., 169 F.2D 932(C.A.2D CIR.).  FN1  CERTIORARI WAS GRANTED IN NO. 11,
ON PETITION OF THE CUSTODIAN N2, TO RESOLVE A CONFLICT BETWEEN THE
JUDGMENT BELOW AND THAT IN CLARK V. LAVINO & CO., 175 F.2D 897(C.A. 3D
CIR.).  THE CONFLICT IS CONFINED TO THE CUSTODIAN'S CLAIM TO THE
ALLOWANCE OF INTEREST, IN HIS FAVOR, IN A SUMMARY PROCEEDING UNDER SEC.
17 OF THE TRADING WITH THE ENEMY ACT.  FN3  HE CLAIMS INTEREST FROM THE
DATE THAT HIS TURNOVER DIRECTIVE N4 WAS SERVED UPON THE MANUFACTURERS
TRUST COMPANY, HERE REFERRED TO AS THE BANK, AND COMPUTES SUCH INTEREST
UPON THE SUM WHICH HE ORDERED TURNED OVER.  FOR THE REASONS HEREINAFTER
STATED, WE AGREE WITH THE JUDGMENT BELOW IN ITS DENIAL OF INTEREST.  WE
GRANTED CERTIORARI ALSO ON THE CROSS APPEAL OF THE BANK IN NO. 15. 
THIS WAS TO ENABLE US TO REEXAMINE THE PLEADINGS AND, IF THEY WERE
FOUND TO PERMIT IT, TO CONSIDER THE BANK'S CLAIM THAT THE DISTRICT
COURT LACKED AUTHORITY TO ORDER IT TO TURN OVER TO THE CUSTODIAN THE
PRINCIPAL SUM IN QUESTION, IN THE FACE OF THE BANK'S DENIAL OF ITS
INDEBTEDNESS TO THE ENEMY CREDITOR FOR THAT SUM, ITS CLAIM OF A SETOFF
IN EXCESS OF THE ALLEGED DEBT, AND ITS CLAIM TO A LIEN UPON THE
PROCEEDS OF THE DEBT.  WE FIND THAT THE RECORD DOES NOT PERMIT US TO
REACH THAT ISSUE. 

FEBRUARY 1, 1946, THE CUSTODIAN ISSUED HIS VESTING ORDER NO. 5791, 11
FED. REG. 3005, UNDER AUTHORITY OF SEC. 5(B) OF THE TRADING WITH THE
ENEMY ACT,  FN5  VESTING HIMSELF WITH THE FOLLOWING DESCRIBED
"PROPERTY": 

"THAT CERTAIN DEBT OR OTHER OBLIGATION OWING TO DEUTSCHE REICHSBANK,
BY MANUFACTURERS TRUST COMPANY, 55 BROAD STREET, NEW YORK, NEW YORK,
ARISING OUT OF A DOLLAR ACCOUNT, ENTITLED REICHSBANK DIREKTORIUM
DIVISEN ABTEILUNG, AND ANY AND ALL RIGHTS TO DEMAND, ENFORCE AND
COLLECT THE SAME, ...  " 

JANUARY 30, 1947, THE CUSTODIAN SERVED ON THE BANK HIS TURNOVER
DIRECTIVE BASED UPON HIS VESTING ORDER AND THEREBY DIRECTED THAT THE
SUM OF $25,581.49, "TOGETHER WITH ALL ACCUMULATIONS TO AND INCREMENTS
THEREON, SHALL FORTHWITH BE TURNED OVER TO THE UNDERSIGNED (THE
CUSTODIAN) TO BE HELD, USED, ADMINISTERED, LIQUIDATED, SOLD OR
OTHERWISE DEALT WITH IN THE INTEREST OF AND FOR THE BENEFIT OF THE
UNITED STATES." 

OCTOBER 29, 1947, THE CUSTODIAN FILED IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK HIS PETITION AGAINST THE
BANK SEEKING SUMMARY ENFORCEMENT OF HIS ORDER UNDER SEC. 17 OF THE ACT,
SUPRA.  NOVEMBER 13, 1947, THE BANK ANSWERED.  FN6 

DECEMBER 12, 1947, THE DISTRICT COURT, WITHOUT OPINION, DIRECTED THE
BANK TO PAY TO THE CUSTODIAN $25,581.49, PLUS INTEREST AT 6% PER ANNUM
FROM JANUARY 30, 1947.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
STRUCK OUT THE INTEREST BUT OTHERWISE AFFIRMED THE JUDGMENT.  ONE JUDGE
SAID HE WOULD HAVE PREFERRED TO LIMIT THAT COURT'S HOLDING TO THE POINT
THAT THE ANSWER DID NOT ALLEGE A SUFFICIENTLY UNEQUIVOCAL CLAIM TO A
SETOFF TO RAISE THAT DEFENSE.  ANOTHER DISSENTED FROM THE DENIAL OF
INTEREST.  PETITIONS FOR CERTIORARI WERE DENIED TO BOTH PARTIES,
JANUARY 17, 1949.  335 U.S. 910. 

JUNE 16, 1949, THE CUSTODIAN ASKED LEAVE TO FILE A PETITION FOR
REHEARING AND FOR A WRIT OF CERTIORARI ON THE GROUND THAT, ON JUNE 1,
1949, THE COURT OF APPEALS FOR THE THIRD CIRCUIT HAD DECIDED CLARK V.
LAVINO & CO., SUPRA, IN WHICH IT HAD EXPRESSLY ALLOWED INTEREST TO THE
CUSTODIAN UNDER CIRCUMSTANCES LARGELY COMPARABLE TO THOSE IN THE CASE
BELOW.  THE BANK ASKED LEAVE TO PRESENT ITS CONTENTIONS SHOULD THE
CUSTODIAN'S PETITION FOR CERTIORARI BE GRANTED.  ALL APPLICATIONS WERE
GRANTED.  337 U.S. 953. 

                      I. 

THE TRADING WITH THE ENEMY ACT IS A WAR MEASURE.  FN7  IT CREATES
POWERFUL AND SWIFT EXECUTIVE AND SUMMARY PROCEDURES PARTICULARLY FOR
THE SEIZURE OF THE PROPERTY OF ENEMIES BY LEGAL PROCESS AS AN EFFECTIVE
ALTERNATIVE TO SEIZURE BY MILITARY FORCE.  THE ACT EXPRESSLY PROVIDES
FOR THE SEIZURE OF ENEMY-HELD CLAIMS TO MONEY OWED ON DEBTS.  KOHN V.
JACOB & JOSEF KOHN, INC., 264 F. 253(S.D.N.Y.).   SPECIAL PROCEEDINGS
ARE PROVIDED TO TRY THE MERITS OF CLAIMS TO PROPERTY SEIZED IN SUCH
SUMMARY POSSESSORY PROCEDURES.  FN8  THE PRESENT ACTION IS A SUMMARY
POSSESSORY PROCEEDING UNDER SEC. 17.  FN9  SECTION 16, WHICH HAS
ACCOMPANIED SEC. 17 IN THE ACT SINCE 1917, PRESCRIBES FINES, SENTENCES
AND FORFEITURES AS SPECIAL SANCTIONS TO PUNISH WILLFUL VIOLATIONS OF
VESTING ORDERS OR TURNOVER DIRECTIVES AS FOLLOWS: 

"THAT WHOEVER SHALL WILLFULLY VIOLATE ANY OF THE PROVISIONS OF THIS
ACT OR OF ANY LICENSE, RULE, OR REGULATION ISSUED THEREUNDER, AND
WHOEVER SHALL WILLFULLY VIOLATE, NEGLECT, OR REFUSE TO COMPLY WITH ANY
ORDER OF THE PRESIDENT ISSUED IN COMPLIANCE WITH THE PROVISIONS OF THIS
ACT SHALL, UPON CONVICTION, BE FINED NOT MORE THAN $10,000, OR, IF A
NATURAL PERSON, IMPRISONED FOR NOT MORE THAN TEN YEARS, OR BOTH; AND
THE OFFICER, DIRECTOR, OR AGENT OF ANY CORPORATION WHO KNOWINGLY
PARTICIPATES IN SUCH VIOLATION SHALL BE PUNISHED BY A LIKE FINE,
IMPRISONMENT, OR BOTH, AND ANY PROPERTY, FUNDS, SECURITIES, PAPERS, OR
OTHER ARTICLES OR DOCUMENTS,  ...  CONCERNED IN SUCH VIOLATION SHALL BE
FORFEITED TO THE UNITED STATES."  40 STAT. 425, 50 U.S.C. APP. SEC.
16.  FN10 

THE ACT MAKES NO MENTION OF INTEREST CHARGES IN CONNECTION WITH THE
ENFORCEMENT OF THESE SUMMARY PROCEDURES.  WE RECOGNIZE THAT, IN THE
ABSENCE OF EXPRESS STATUTORY PROVISION FOR IT, INTEREST SOMETIMES HAS
BEEN ALLOWED IN FAVOR OF THE GOVERNMENT UNDER OTHER STATUTES WHEN THE
GOVERNMENT'S POSITION HAS BEEN PRIMARILY THAT OF A CREDITOR COLLECTING
FROM A DEBTOR.  FN11  SEE RODGERS V. UNITED STATES, 332 U.S. 371, 373,
IN WHICH THE RULE WAS STATED AND INTEREST DISALLOWED.  IN THE PRESENT
CASE, HOWEVER, WE ARE NOT DEALING WITH INTEREST ACCRUING TO THE
GOVERNMENT UPON CONTRACTUAL INDEBTEDNESS OR UPON INDEBTEDNESS SUCH AS
THAT ARISING OUT OF CUSTOMS DUTIES OR TAXES.  WE HAVE HERE QUITE A
DIFFERENT MATTER, THE VIOLATION OF A SUMMARY ORDER OF THE ALIEN
PROPERTY CUSTODIAN TO TURN OVER TO HIM THE PHYSICAL POSSESSION OF
CERTAIN FUNDS AS A PROTECTIVE WAR MEASURE.  THE TURNOVER DIRECTIVE IN
THE INSTANT CASE IS, IN ITS ESSENCE, THE SAME KIND OF AN ORDER AS WOULD
HAVE BEEN ISSUED TO COMPEL THE DELIVERY TO THE CUSTODIAN OF THE
PHYSICAL POSSESSION OF A $25,000 BOND OWNED BY THE DEUTSCHE REICHSBANK
BUT HELD BY THE MANUFACTURERS TRUST COMPANY IN THE LATTER'S SAFE
DEPOSIT VAULTS.  STATUTORY FINES, SENTENCES AND FORFEITURES ARE
PRESCRIBED FOR WILLFUL VIOLATION OF SUCH AN ORDER AND, IN THE CASE OF
THE BOND, IT IS OBVIOUS THAT THERE WOULD BE NO BASIS FOR THE ADDITION
OF AN INTEREST CHARGE, COMPUTED AT A STATUTORY OR JUDICIALLY DETERMINED
RATE ON THE FACE OR ESTIMATED VALUE OF THE BOND AND RUNNING MERELY FROM
THE DATE OF THE TURNOVER DIRECTIVE.  SIMILARLY, WE FIND NO BASIS FOR
ADDING SUCH AN INTEREST CHARGE IN THE INSTANT CASE. 

NO CLAIM OF THE CUSTODIAN FOR ANY INTEREST ACCRUING UNDER THE TERMS
OF THE AGREEMENT OF DEPOSIT IS BEFORE US.  THE CUSTODIAN, IN HIS
TURNOVER DIRECTIVE AND IN HIS PETITION, CALLED FOR THE DELIVERY TO HIM
OF THE $25,581.49 OWING TO DEUTSCHE REICHSBANK ON THE DATE OF THE
VESTING ORDER, FEBRUARY 1, 1946, TOGETHER WITH ALL ACCUMULATIONS AND
INCREMENTS THEREON SINCE THAT DATE.  HE MADE NO SHOWING OF A
CONTRACTUAL BASIS FOR ANY ADDITIONS TO SUCH PRINCIPAL SUM AND,
ACCORDINGLY, JUDGMENT WAS RENDERED FOR THE DELIVERY TO HIM OF PRECISELY
$25,581.49, AND NO CLAIM IS MADE HERE THAT SUCH SUM IS NOT THE CORRECT
TOTAL AMOUNT OF THE INDEBTEDNESS.  THE DISTRICT COURT, HOWEVER, ALSO
ORDERED THE BANK TO TURN OVER TO THE CUSTODIAN 6% INTEREST ON
$25,581.49 FROM JANUARY 30, 1947.  THIS ADDITIONAL ITEM REFLECTED NO
TERMS OF THE DEPOSIT AGREEMENT.  WHATEVER THOSE TERMS MAY HAVE BEEN,
THEY HAD NOT CHANGED SINCE FEBRUARY 1, 1946, SO THAT ANY POSSIBLE BASIS
FOR THE 6% INTEREST FROM JANUARY 30, 1947, MUST BE SOUGHT IN THE
TRADING WITH THE ENEMY ACT.  WE FIND NO AUTHORITY IN THAT ACT FOR A 6%
RATE OR FOR ANY OTHER RATE OF COERCIVE INTEREST TO BE ADDED AS AN
INCIDENT TO A SUMMARY ORDER FOR THE TRANSFER OF POSSESSION OF FUNDS. 
ACCORDINGLY, IN NO. 11, WE AFFIRM THE JUDGMENT OF THE COURT OF APPEALS,
WHICH OMITTED THE INTEREST. 

     II. 

IN NO. 15, THE PARTIES HAVE DISCUSSED SEVERAL QUESTIONS WHICH WOULD
HAVE BEEN PRESENTED IF THE ANSWER HAD CONTAINED A DENIAL OF THE ALLEGED
DEBT, AN UNEQUIVOCAL PLEA OF SETOFF, OR A CLAIM OF A LIEN UPON THE
DEUTSCHE REICHSBANK'S INTEREST IN THE DEBT OR IN ITS PROCEEDS.  THE
ANSWER, HOWEVER, DID NOT PRESENT THOSE ISSUES AND WE DO NOT CONSIDER
THEM.  WHEN READ AS A WHOLE, THE ANSWER DID NOT DENY THE EXISTENCE OF
THE CREDIT BALANCE OF $25,581.49 WHICH THE CUSTODIAN CLAIMED WAS ON
DEPOSIT AND WHICH WAS THE SUBJECT OF THE CUSTODIAN'S VESTING ORDER. 
NOR DID IT UNEQUIVOCALLY ASSERT A SETOFF.  INSTEAD, THE ANSWERING BANK
ALLEGED, ON INFORMATION AND BELIEF, THAT AN OFFSETTING INDEBTEDNESS OF
THE DEUTSCHE REICHSBANK TO IT AROSE FROM THE FACT THAT THE DEUTSCHE
REICHSBANK WAS AN INSTRUMENTALITY AND PART OF THE GERMAN GOVERNMENT,
THAT THE GERMAN GOVERNMENT HAD GUARANTEED TO THE ANSWERING BANK THE
PAYMENT TO IT OF THE DEBTS OF VARIOUS GERMAN BANKS, AND THAT, ON THE
DATE OF THE VESTING ORDER, THE INDEBTEDNESS OF SAID GERMAN BANKS TO THE
ANSWERING BANK WAS IN EXCESS OF $25,581.49.  THOSE ALLEGATIONS DID NOT
STATE THAT THE DEUTSCHE REICHSBANK WAS SUCH AN INSTRUMENTALITY AND SUCH
A PART OF THE GERMAN GOVERNMENT AS WOULD MAKE THE REICHSBANK
AUTOMATICALLY THE GUARANTOR OF THE DEBTS OF OTHER GERMAN BANKS TO THE
ANSWERING BANK.  FN12  THE ANSWER DID NOT EVEN ALLEGE THE STATUS OF THE
GUARANTEED DEBTS TO BE SUCH AS TO ENTITLE THE ANSWERING BANK TO RESORT
TO THE ALLEGED GUARANTY OF THEIR PAYMENT BY THE DEUTSCHE REICHSBANK. 
FN13  THE BANK'S CLAIM TO A LIEN UPON THE DEPOSIT DEPENDED, LIKEWISE,
UPON THE INADEQUATELY ALLEGED INDEBTEDNESS OF THE DEUTSCHE REICHSBANK
TO IT. 

FOR THE FOREGOING REASONS THE JUDGMENT IN NO. 11 IS AFFIRMED, AND THE
JUDGMENT IN NO. 15 IS VACATED SO AS TO PERMIT SUCH AMENDMENTS OF THE
PLEADINGS OR FURTHER PROCEEDINGS AS SHALL BE CONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  J. HOWARD MCGRATH WAS SUBSTITUTED FOR TOM C. CLARK, AS ATTORNEY
GENERAL, 338 U.S. 807. 

FN2  THE TERM "CUSTODIAN" IS USED TO REFER EITHER TO THE ALIEN
PROPERTY CUSTODIAN OR TO THE ATTORNEY GENERAL WHO SUCCEEDED TO THE
POWERS AND DUTIES OF THE ALIEN PROPERTY CUSTODIAN UNDER EXECUTIVE ORDER
NO. 9788, EFFECTIVE OCTOBER 15, 1946, 1 C.F.R. 1946 SUPP. 169. 

FN3  "SEC.  17.  THAT THE DISTRICT COURTS OF THE UNITED STATES ARE
HEREBY GIVEN JURISDICTION TO MAKE AND ENTER ALL SUCH RULES AS TO NOTICE
AND OTHERWISE, AND ALL SUCH ORDERS AND DECREES, AND TO ISSUE SUCH
PROCESS AS MAY BE NECESSARY AND PROPER IN THE PREMISES TO ENFORCE THE
PROVISIONS OF THIS ACT, WITH A RIGHT OF APPEAL FROM THE FINAL ORDER OR
DECREE OF SUCH COURT AS PROVIDED IN SECTIONS ONE HUNDRED AND TWENTY
EIGHT AND TWO HUNDRED AND THIRTY-EIGHT OF THE ACT OF MARCH THIRD,
NINETEEN HUNDRED AND ELEVEN, ENTITLED 'AN ACT TO CODIFY, REVISE, AND
AMEND THE LAWS RELATING TO THE JUDICIARY.'"  40 STAT. 425, 50 U.S.C.
APP. SEC. 17. 

FN4  ISSUED UNDER SEC. 7(C), 40 STAT. 418, AS AMENDED, 40 STAT. 1020,
50 U.S.C. APP. SEC. 7(C), AND EXECUTIVE ORDER NO. 9193, 1 C.F.R. CUM.
SUPP. 1174, AS AMENDED BY EXECUTIVE ORDER NO. 9567, 1 C.F.R. 1945 SUPP.
77. 

FN5  SEC. 5(B), 40 STAT. 415, AS AMENDED, 55 STAT. 839, 50 U.S.C.
APP. SEC. 5(B), AND EXECUTIVE ORDER NO. 9095, 1 C.F.R. CUM. SUPP.
1121. 

FN6  THE FOLLOWING PARTS OF THE ANSWER ARE ESPECIALLY MATERIAL TO OUR
DECISION IN NO. 15: 

"7.  FURTHERMORE, BY A VESTING ORDER THE ALIEN PROPERTY CUSTODIAN CAN
ONLY VEST PROPERTY OR A DEBT WHICH WAS IN EXISTENCE AT THE TIME OF THE
ISSUANCE OF THE VESTING ORDER.  MANUFACTURERS TRUST COMPANY DID NOT
HOLD ANY PROPERTY FOR OR ON BEHALF OF THE DEUTSCHE REICHSBANK.  THE
RELATIONSHIP BETWEEN MANUFACTURERS TRUST COMPANY AS A DEPOSITORY AND
THE DEUTSCHE REICHSBANK AS A DEPOSITOR OF MANUFACTURERS TRUST COMPANY
IS A DEBTOR AND CREDITOR RELATIONSHIP.  THE EXISTENCE OF A DEBT FROM
MANUFACTURERS TRUST COMPANY TO THE DEUTSCHE REICHSBANK CAN NOT BE
PREDICATED UPON THE STATUS OF A PARTICULAR ACCOUNT.  MANUFACTURERS
TRUST COMPANY CAN NOT BE A DEBTOR OF THE DEUTSCHE REICHSBANK UNLESS THE
TOTAL OF THEIR MUTUAL CREDITS EXCEEDS THE TOTAL OF THEIR MUTUAL
DEBITS.  AT THE TIME OF THE ISSUANCE OF THE VESTING ORDER NO. 5791,
DEUTSCHE REICHSBANK'S INDEBTEDNESS TO MANUFACTURERS TRUST COMPANY WAS
IN EXCESS OF $25,581.49 AND THEREFORE THERE WAS NO DEBT OWING FROM
MANUFACTURERS TRUST COMPANY TO DEUTSCHE REICHSBANK ARISING OUT OF THE
REICHSBANK DIREKTORIUM DIVISEN (ABTEILUNG) ACCOUNT.  THE INDEBTEDNESS
OF THE DEUTSCHE REICHSBANK AROSE FROM THE FACT THAT DEUTSCHE REICHSBANK
WAS UPON INFORMATION AND BELIEF, AN INSTRUMENTALITY AND PART OF THE
GERMAN GOVERNMENT.  THE GERMAN GOVERNMENT GUARANTEED TO MANUFACTURERS
TRUST COMPANY THE PAYMENT OF DEBTS OF VARIOUS GERMAN BANKS TO
MANUFACTURERS TRUST COMPANY.  ON JUNE 1ST, 1940 AND JUNE 14TH, 1941,
THE INDEBTEDNESS OF THE SAID BANKS TO MANUFACTURERS TRUST COMPANY, WAS
IN EXCESS OF $25,581.49. 

"8.  IN ADDITION TO THE FOREGOING, MANUFACTURERS TRUST COMPANY IS
ADVISED BY COUNSEL THAT A LIEN OF A BANK ON A DEPOSITOR'S BALANCE FOR
THE AMOUNT OF DEPOSITOR'S INDEBTEDNESS TO THE BANK IS WELL RECOGNIZED
BY LAW.  MANUFACTURERS TRUST COMPANY IS FURTHER ADVISED BY COUNSEL THAT
PERSON WHO IS NOT AN ENEMY OR AN ALLY OF AN ENEMY AND THE LIENOR'S
RIGHT TO REALIZE THEREON IN SATISFACTION OF THE LIENOR'S CLAIMS." 

FN7 "THE TRADING WITH THE ENEMY ACT, WHETHER TAKEN AS ORIGINALLY
ENACTED, OCTOBER 6, 1917, ...  OR AS SINCE AMENDED, MARCH 28, 1918,
...  NOVEMBER 4, 1918,  ...  JULY 11, 1919,  ...  JUNE 5, 1920,  ...
IS STRICTLY A WAR MEASURE AND FINDS ITS SANCTION IN THE CONSTITUTIONAL
PROVISION, ART. I, SEC. 8, CL. 11, EMPOWERING CONGRESS 'TO DECLARE WAR,
GRANT LETTERS OF MARQUE AND REPRISAL, AND MAKE RULES CONCERNING
CAPTURES ON LAND AND WATER.'  ... 

"IT IS WITH PARTS OF THE ACT WHICH RELATE TO CAPTURES ON LAND THAT WE
NOW ARE CONCERNED.  ... (AFTER DISCUSSING PARTICULARLY SECS. 7(C), 9,
AND 12): 

"THAT CONGRESS IN TIME OF WAR MAY AUTHORIZE AND PROVIDE FOR THE
SEIZURE AND SEQUESTRATION THROUGH EXECUTIVE CHANNELS OF PROPERTY
BELIEVED TO BE ENEMY-OWNED, IF ADEQUATE PROVISION BE MADE FOR A RETURN
IN CASE OF MISTAKE, IS NOT DEBATABLE.  ...  THERE IS NO WARRANT FOR
SAYING THAT THE ENEMY OWNERSHIP MUST BE DETERMINED JUDICIALLY BEFORE
THE PROPERTY CAN BE SEIZED; AND THE PRACTICE HAS BEEN THE OTHER WAY. 
THE PRESENT ACT COMMITS THE DETERMINATION OF THAT QUESTION TO THE
PRESIDENT, OR THE REPRESENTATIVE THROUGH WHOM HE ACTS, BUT IT DOES NOT
MAKE HIS ACTION FINAL."  STOEHR V. WALLACE, 255 U.S. 239, 241-242, 245
246.  SEE ALSO, CENTRAL TRUST CO. V. GARVAN, 254 U.S. 554, 568; RUBIN,
"INVIOLABILITY" OF ENEMY PRIVATE PROPERTY, 11 LAW AND CONTEMP.  PROB. 
166(1945). 

FN8  SECTION 9(A) OF THE ACT, 42 STAT. 1511, 50 U.S.C. APP. SEC.
9(A), PROVIDES FOR THE ADMINISTRATIVE CONSIDERATION AND ALLOWANCE OF
CLAIMS TO PROPERTY TRANSFERRED TO THE CUSTODIAN.  A CLAIMANT ALSO MAY
SUE IN A DISTRICT COURT FOR AN ADJUDICATION OF THE VALIDITY OF HIS
CLAIM.  SECTION 32, 60 STAT. 50, AS AMENDED, 60 STAT. 930, 50 U.S.C.
APP. SEC. 32, AUTHORIZES THE ADMINISTRATIVE RECOGNITION OF CLAIMS TO
PROPERTY IN THE POSSESSION OF THE CUSTODIAN AND SEC. 34, 60 STAT. 925,
50 U.S.C. APP. SEC. 34, AUTHORIZES A PROCEDURE FOR THE ALLOWANCE, AND
PAYMENT TO CLAIMANTS, OF DEBTS OWED BY THE PERSON WHOSE PROPERTY HAS
BEEN SEIZED BY THE CUSTODIAN.  SEE ALSO, CENTRAL TRUST CO. V. GARVAN,
254 U.S. 554, 568; GARVAN V. $20,000 BONDS, 265 F. 477(C.A.2D CIR.);
SIMON V. MILLER, 298 F. 520, 524(S.D.N.Y.); KAHN V. GARVAN, 263 F. 909,
916(S.D.N.Y.). 

FN9  PETITION FILED OCTOBER 29, 1947.  ORDER TO SHOW CAUSE ISSUED
THAT DAY.  ANSWER FILED NOVEMBER 13.  CASE HEARD AND DECIDED THAT DAY. 
JUDGMENT ENTERED DECEMBER 12. 

FN10  SEE ALSO, PENALTIES FOR WILLFUL VIOLATION ADDED TO SEC. 5, 48
STAT. 1, 50 U.S.C. APP. SEC. 5(B)(3).  THE CUSTODIAN MAY MAKE THE
REQUIRED PRESIDENTIAL DETERMINATIONS UNDER SEC. 7(C).  "IN SHORT, A
PERSONAL DETERMINATION BY THE PRESIDENT IS NOT REQUIRED; HE MAY ACT
THROUGH THE CUSTODIAN, AND A DETERMINATION BY THE LATTER IS IN EFFECT
THE ACT OF THE PRESIDENT."  STOEHR V. WALLACE, 255 U.S. 239, 245; AND
SEE CENTRAL TRUST CO. V. GARVAN, 254 U.S. 554, 567. 

FN11  E.G., ROYAL INDEMNITY CO. V. UNITED STATES, 313 U.S. 289, 296;
BILLINGS V. UNITED STATES, 232 U.S. 261; SEE ALSO, BOARD OF
COMMISSIONERS V. UNITED STATES, 308 U.S. 343, 350, 352. 

FN12  FOR A DESCRIPTION OF THE CONTEMPORARY MONETARY AND BANKING
SYSTEM OF GERMANY AND OF THE PART PLAYED IN IT BY THE DEUTSCHE
REICHSBANK, SEE MILITARY GOVERNMENT HANDBOOK, GERMANY, SECTION 5:
MONEY AND BANKING, ARMY SERVICE FORCES MANUAL M356-5 REVISED (MARCH
1945), PP. 4, 66-73.  FOR EXAMPLES OF DIFFERENCES BETWEEN THE
LIABILITIES OF FOREIGN PUBLIC OR SEMIPUBLIC CORPORATIONS AND THOSE OF
THE FOREIGN GOVERNMENTS TO WHICH THEY ARE RELATED, SEE UNITED STATES V.
DEUTSCHES KALISYNDIKAT GESELLSCHAFT, 31 F.2D 199(S.D.N.Y.)  AND COALE
V. SOCIETE CO-OP., 21 F.2D 180(S.D.N.Y.). 

FN13  5 MICHIE, BANKS AND BANKING (PERM.  ED.)  SECS. 126-128, AND
CASES CITED; 7 ZOLLMANN, BANKS AND BANKING (PERM.  ED.)  SECS. 4392,
4563, 4590.  SEE ALSO, RESTRICTIONS ON ASSERTION, WITHOUT A FEDERAL
LICENSE, OF ANY RIGHT OF SETOFF WHICH DID NOT EXIST BEFORE JUNE 14,
1941.  EXECUTIVE ORDER NO. 8785, SECS. 1.  A. AND 1.  E., 1 C.F.R. CUM.
SUPP. 948, AND SEE PROPPER V. CLARK, 337 U.S. 472. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF EITHER OF THESE CASES. 
..END :
















TREICHLER V. WISCONSIN, 338 U.S. 251 


NO. 20.  ARGUED OCTOBER 11-12, 1949.  - DECIDED NOVEMBER 7, 1949.  - 254
WIS. 24, 35 N.W.2D 404, REVERSED. 


1.  THE WISCONSIN EMERGENCY TAX ON INHERITANCES, WIS. STAT. 1947, SEC.
72.74(2), AS APPLIED BY THE SUPREME COURT OF WISCONSIN IN THIS CASE, IS
A TAX ON PROPERTY RATED AND MEASURED IN PART BY TANGIBLE PROPERTY
SITUATED IN OTHER STATES.  PP. 252-256. 

2.  INSOFAR AS IT IS MEASURED BY TANGIBLE PROPERTY OUTSIDE WISCONSIN,
THE TAX VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
FRICK V. PENNSYLVANIA, 268 U.S. 473.  PP. 256-257. 

TREICHLER, EXECUTOR, V. WISCONSIN. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

THE SUPREME COURT OF WISCONSIN SUSTAINED A LEVY OF CERTAIN TAXES ON
THE ESTATE OF APPELLANT'S TESTATOR UNDER WIS. STAT. 1947, SEC.
72.74(2), NOTWITHSTANDING A CLAIM THAT IT VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE IT WAS BASED IN PART ON
TANGIBLE PROPERTY LOCATED OUTSIDE THE STATE.  254 WIS. 24, 35 N.W.2D
404.  ON APPEAL TO THIS COURT, REVERSED, P. 257. 

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A DECISION OF THE SUPREME COURT OF WISCONSIN,
ARISING FROM AN ORDER OF THE COUNTY COURT OF MILWAUKEE COUNTY, LEVYING
CERTAIN DEATH TAXES ON THE ESTATE OF FRED A. MILLER, DECEASED, UNDER
THE APPLICABLE STATUTES OF WISCONSIN.  THE QUESTION FOR DECISION IS THE
VALIDITY OF THE WISCONSIN EMERGENCY TAX ON INHERITANCES, WIS. STAT.
(1947) SEC. 72.74(2), WHEN TESTED IN THE LIGHT OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES. 

THE DECEDENT DIED TESTATE ON DECEMBER 19, 1943, A RESIDENT OF
WISCONSIN.  AT DEATH HIS GROSS ESTATE WAS $7,849,714.84.  PROPERTY
LOCATED IN WISCONSIN WAS VALUED AT $6,869,778.61; THE REMAINDER OF
$979,936.23 CONSISTED OF REAL AND TANGIBLE PERSONAL PROPERTY SITUATED
IN THE STATES OF ILLINOIS AND FLORIDA.  FN1 

THE COMMISSIONER OF INTERNAL REVENUE ASSESSED NET FEDERAL TAXES
AGAINST THE ESTATE IN THE SUM OF $3,076,131.19, INCLUSIVE OF THE 80% OF
THE BASIC FEDERAL TAX SUBJECT TO CREDIT FOR STATE ESTATE TAXES AS
PROVIDED BY SEC. 301(B) OF THE UNITED STATES REVENUE ACT OF 1926, 44
STAT. 70, AS AMENDED, 26 U.S.C. SEC. 813(B).  THIS 80% CREDIT WAS THE
SUM OF $630,709.62. 

WISCONSIN HAS A TRIAD OF DEATH TAXES KNOWN AS (1) NORMAL INHERITANCE
TAX, (2) ESTATE TAX, AND (3) EMERGENCY TAX. 

THE NORMAL WISCONSIN INHERITANCE TAX, AS LEVIED BY WIS. STAT. (1947)
SECS. 72.01 TO 72.24, WAS IN THIS CASE $220,682.12.  IT IS LEVIED ONLY
ON PROPERTY WITHIN THE STATE OF WISCONSIN AND IS NOT IN CONTROVERSY
HERE. 

TO TAKE ADVANTAGE OF THE CREDIT PROVISIONS OF THE REVENUE ACT OF
1926, THE WISCONSIN LEGISLATURE ALSO ENACTED AN ESTATE TAX IN THE
AMOUNT OF 80% OF THE BASIC FEDERAL TAX SUBJECT TO CREDIT, LESS "THE
AGGREGATE AMOUNT OF ALL ESTATES, INHERITANCE, TRANSFER, LEGACY AND
SUCCESSION TAXES PAID TO ANY STATE OR TERRITORY OR THE DISTRICT OF
COLUMBIA, IN RESPECT TO ANY PROPERTY IN THE ESTATE OF SAID DECEDENT." 
WIS. STAT. (1947) SEC. 72.50.  WISCONSIN NORMAL INHERITANCE TAXES AS
WELL AS OUT-OF-STATE TAXES ARE DEDUCTED FROM THE FEDERAL CREDIT.  THE
ESTATE TAX ON THIS ESTATE WAS COMPUTED AT $352,701.79.  HOWEVER, THIS
PROVISION OF THE WISCONSIN STATUTES IS NOT UNDER EXPLICIT ATTACK HERE. 

THE ONLY STATUTE, THE VALIDITY OF WHICH IS INVOLVED IN THIS APPEAL,
IS SEC. 72.74(2) OF THE WISCONSIN STATUTES KNOWN AS THE EMERGENCY TAX
ON INHERITANCES.  THE SECTION UNDER SCRUTINY PROVIDES: 

"IN ADDITION TO THE TAXES IMPOSED BY SECTIONS 72.01 TO 72.24 AND
72.50 TO 72.61, AN EMERGENCY TAX FOR RELIEF PURPOSES, REHABILITATION OF
RETURNING VETERANS OF WORLD WAR II, CONSTRUCTION AND IMPROVEMENTS AT
STATE INSTITUTIONS AND OTHER STATE PROPERTY AND FOR POST-WAR PUBLIC
WORKS PROJECTS TO RELIEVE POST-WAR UNEMPLOYMENT IS HEREBY IMPOSED UPON
ALL TRANSFERS OF PROPERTY WHICH ARE TAXABLE UNDER THE PROVISIONS OF
SAID SECTIONS AND WHICH ARE MADE SUBSEQUENT TO MARCH 27, 1935 AND PRIOR
TO JULY 1, 1949 WHICH SAID TAX SHALL BE EQUAL TO 30 PER CENT OF THE TAX
IMPOSED BY SAID SECTIONS." 

AS IS APPARENT, COMPUTATION OF THE ADDITIONAL EMERGENCY TAX INVOLVES
ONLY FOUR FACTORS:  (1) THE AMOUNT OF THE 80% FEDERAL CREDIT, (2) THE
TAXES PAID TO OTHER JURISDICTIONS, (3) WISCONSIN NORMAL INHERITANCE
TAXES, AND (4) THE 30% RATE IMPOSED.  IN APPLYING THE YARD-STICK OF
THIS SECTION TO THE DECEDENT'S ESTATE, THE WISCONSIN AUTHORITIES TOOK
THE TOTAL OF THE 80% FEDERAL CREDIT, THAT IS $630,709.62, AND FIRST
DEDUCTED FROM IT THE TAXES PAID TO STATES OTHER THAN WISCONSIN -
ILLINOIS ($35,616.26) AND FLORIDA ($21,709.45) - AND WISCONSIN'S NORMAL
INHERITANCE TAX ($220,682.12), WHICH LEFT $352,701.79.  THE TAX DUE WAS
THEN CALCULATED BY TAKING 30% OF THE LATTER AMOUNT, PLUS 30% OF THE
NORMAL INHERITANCE TAX.  THE RESULT, $172,015.20, WAS LEVIED AS THE
EMERGENCY INHERITANCE TAX DUE. 

IT WILL BE SEEN THAT AS THE TAXING FORMULA IS REDUCED, THE NORMAL
INHERITANCE TAX IS NO LONGER A FACTOR IN THE COMPUTATION.  FOR WHILE
30% THEREOF IS ADDED TO 30% OF THE ESTATE TAX TO GIVE THE EMERGENCY
TAX, THE NORMAL INHERITANCE TAX HAS ALREADY BEEN SUBTRACTED IN THE
COMPUTATION OF THE BASIC ESTATE TAX.  HENCE, IN EXTENDING THE FORMULA
OF THE EMERGENCY TAX, THE INHERITANCE TAXES CANCEL.  FN2  WHAT IS LEFT,
OTHER THAN OUT-OF-STATE TAXES, IS SIMPLY 80% OF THE BASIC FEDERAL TAX,
RATED AND MEASURED BY THE ENTIRE ESTATE, REGARDLESS OF SITUS, AND
THEREFORE INCLUDING THE PROPERTY LOCATED IN ILLINOIS AND FLORIDA. 

THE COURT BELOW THOUGHT THAT THE PRESENCE OF 87.52% OF MR. MILLER'S
PROPERTY WITHIN WISCONSIN JUSTIFIED ITS STATEMENT THAT THE STATE TAXED
ONLY WISCONSIN PROPERTY.  AND THE STATE ARGUES THAT THE "OTHER 20%"
OVER THE FEDERAL BASIC ESTATE TAX 80% CREDIT "MORE THAN ABSORBS, OR IS,
ON ANY MATHEMATICAL BASIS, ATTRIBUTABLE TO" THE 12.48% OF PROPERTY
OUTSIDE WISCONSIN.  BUT WISCONSIN MADE BUT 80% OF THE FEDERAL TAX ITS
OWN; AND AS IT DID NOT APPORTION THAT 80% TO PROPERTY WITHIN THE STATE,
THE PRESENCE OF PROPERTY THEREIN IS SIMPLY A FORTUITY WHICH CANNOT HELP
THE TAXING JURISDICTION.  SEE OWENSBORO NATIONAL BANK V. OWENSBORO, 173
U.S. 664, 683(1899).  THE SAME MUST BE SAID OF DEDUCTIONS FOR OUT-OF
STATE TAXES, WHICH HAVE NO NECESSARY RELATION TO THE PROPORTION OF
PROPERTY OUTSIDE WISCONSIN.  FN3 

WE THINK IT CLEAR THAT THE ORDER ENTERED BY THE SUPREME COURT OF
WISCONSIN AUTHORIZED A TAX ON PROPERTY RATED AND MEASURED IN PART BY
TANGIBLE PROPERTY, THE SITUS OF WHICH WAS OUTSIDE WISCONSIN. 

THIS WISCONSIN MAY NOT DO.  IN FRICK V. PENNSYLVANIA, 268 U.S.
473(1925), PENNSYLVANIA LEVIED AN INHERITANCE TAX BASED UPON REAL AND
PERSONAL PROPERTY WHEREVER LOCATED.  MR. FRICK'S ART COLLECTION WAS
LOCATED IN NEW YORK.  IN A UNANIMOUS OPINION THIS COURT RULED THAT
PENNSYLVANIA'S STATUTE, "IN SO FAR AS IT ATTEMPTS TO TAX THE TRANSFER
OF TANGIBLE PERSONALTY HAVING AN ACTUAL SITUS IN OTHER STATES,
CONTRAVENES THE DUE PROCESS OF LAW CLAUSE OF THE FOURTEENTH AMENDMENT
AND IS INVALID."  WISCONSIN'S STATUTE MAY BE MORE SOPHISTICATED THAN
PENNSYLVANIA'S, BUT IN TERMS OF ULTIMATE CONSEQUENCES THIS CASE AND THE
FRICK CASE ARE ONE.  IT IS QUITE UNNECESSARY TO KNOW IN EITHER CASE
WHAT PROPERTY IS LOCATED WITHIN THE TAXING JURISDICTION IN ORDER TO
COMPUTE THE CHALLENGED EXACTION. 

NOR ARE WE INCLINED TO DISCARD THE FRICK RULE.  WE HAVE CONSISTENTLY
UPHELD THE DOMICILE'S LEVY WHEN IT WAS BASED UPON INTANGIBLE PROPERTY
WITH TECHNICAL TITLE WITHOUT THE JURISDICTION.  BLODGETT V. SILBERMAN,
277 U.S. 1(1928).  AND THE ECONOMIC EFFECTS OF TAX BURDENS IN THE
FEDERAL SYSTEM CANNOT CONTROL OUR RESULTS, LIMITED AS WE ARE TO THE
WORDS OF THE FOURTEENTH AMENDMENT.  STATE TAX COMMISSION OF UTAH V.
ALDRICH, 316 U.S. 174, 181(1942), CITING HOLMES, J., DISSENTING IN
BALDWIN V. MISSOURI, 281 U.S. 586, 595(1930).  BUT WHEN A STATE REACHES
BEYOND ITS BORDERS AND FASTENS UPON TANGIBLE PROPERTY, IT CONFERS
NOTHING IN RETURN FOR ITS EXACTION.  SINCE THE STATE OF LOCATION HAS
ALL BUT COMPLETE DOMINION OVER THE PHYSICAL OBJECTS SOUGHT TO BE
MEASURED FOR TAX, SEE GREEN V. VAN BUSKIRK, 7 WALL.  139, 150(1869);
CURRY V. MCCANLESS, 307 U.S. 357, 363(1939), AND CASES CITED, NO OTHER
STATE CAN OFFER A QUID PRO QUO.  A STATE IS NOT EQUIPPED WITH THE
IMPLEMENTS OF POWER AND DIPLOMACY WITHOUT ITS BOUNDARIES WHICH ARE AT
THE ROOT OF THE FEDERAL GOVERNMENT'S UNDOUBTED RIGHT TO MEASURE ITS TAX
UPON FOREIGN PROPERTY.  UNITED STATES V. BENNETT, 232 U.S. 299(1914);
SEE BURNET V. BROOKS, 288 U.S. 378(1933).  AND IF THE STATE HAS
AFFORDED NOTHING FOR WHICH IT CAN ASK RETURN, ITS TAXING STATUTE
OFFENDS AGAINST THAT DUE PROCESS OF LAW IT IS OUR DUTY TO ENFORCE. 
FN4 

WE HOLD THAT WISCONSIN'S EMERGENCY INHERITANCE TAX IS INVALID INSOFAR
AS IT IS MEASURED BY TANGIBLE PROPERTY OUTSIDE WISCONSIN.  THE JUDGMENT
MUST BE REVERSED AND THE CAUSE REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  THE RECORD DOES NOT REVEAL THE EXACT NATURE OF THE PROPERTY, AND
WE HAVE HELD THAT WHETHER THE PROPERTY IS "TANGIBLE" WITHIN THE MEANING
OF FRICK V. PENNSYLVANIA, 268 U.S. 473(1925), INFRA, IS A FEDERAL
QUESTION.  BLODGETT V. SILBERMAN, 277 U.S. 1(1928).  IN THIS CASE,
HOWEVER, THE PARTIES AND THE COURT BELOW AGREE THAT THE PROPERTY IS
CLEARLY "TANGIBLE" WITHIN THE FRICK RULE.  WE ACCEPT THAT ASSUMPTION. 

FN2  THE FORMULA IS AS FOLLOWS: 

30% X WISCONSIN NORMAL INHERITANCE TAX   30% (80% FEDERAL BASIC TAX -
WISCONSIN NORMAL INHERITANCE TAX - TAXES PAID IN ILLINOIS AND
FLORIDA).  THIS REDUCES TO:  30% (80% FEDERAL BASIC TAX - TAXES PAID IN
ILLINOIS AND FLORIDA). 

DEDUCTIONS AUTHORIZED IN THE COMPUTATION OF THE NORMAL INHERITANCE
TAX ARE THUS OF NO SIGNIFICANCE. 

THE STATE'S TABLE OF COMPUTATION READS: 

(1)  WISCONSIN NORMAL INHERITANCE TAXES ..................
$220,682.12 

(2)  WISCONSIN ESTATE TAX: - 

80% OF U.S. ESTATE TAX.......................  $630,709.62 

LESS: - 

(A)  WISCONSIN NORMAL 

TAXES (1) ABOVE...$220,682.12 

(B)  ILLINOIS INHERITANCE 

TAXES ............  35,616.26 

(C)  FLORIDA INHERITANCE 

TAXES ............  21,709.45 

TOTAL STATE TAXES............................   278,007.83

           ----------- 

DIFFERENCE IS WISCONSIN ESTATE TAX........................
352,701.79 

(3) WISCONSIN EMERGENCY TAX: - 

WISCONSIN NORMAL 

TAXES (1) ABOVE...$220,682.12 

WISCONSIN ESTATE TAX 

(2) ABOVE ....... 352,701.79 

--------------------------------------------- 

TOTAL ............ $573,383.91 

EMERGENCY TAX IS 30%......................................
172,015.20

                              ----------- 

TOTAL WISCONSIN INHERITANCE TAXES.........................
$745,399.11 

FN3  A DIFFERENT QUESTION MIGHT BE PRESENTED, HOWEVER, IF THE STATUTE
IN QUESTION AUTHORIZED COMPUTATION TO BEGIN WITH 87.52% RATHER THAN ALL
OF THE 80% FEDERAL CREDIT.  WE INTEND TO INTIMATE NO OPINION AS TO THAT
SITUATION. 

FN4  OF COURSE WE HAVE REFUSED TO BE GOVERNED BY THIS CONSIDERATION
WHEN SO TO DO WOULD HAVE PLACED A PREMIUM UPON THE AVOIDANCE OF ALL
STATE TAXES.  NEW YORK EX REL. NEW YORK C. & H.R.R. CO. V. MILLER, 202
U.S. 584, 597(1906); SOUTHERN PACIFIC CO. V. KENTUCKY, 222 U.S.
63(1911); CF. NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292(1944).  SEE
COMMONWEALTH V. PENNSYLVANIA COAL CO., 197 PA. 551, 47 A. 740(1901);
NORFOLK & W.R. CO. V. BOARD, 97 VA. 23, 32 S.E. 779(1899). 

MR. JUSTICE BLACK DISSENTS.  HE AGREES THAT THE COURT'S HOLDING
LOGICALLY FOLLOWS FROM ITS INTERPRETATION OF THE DUE PROCESS CLAUSE IN
THE FRICK CASE, BUT BELIEVES THAT SO INTERPRETED THE CLAUSE GIVES A
MORE EXPANSIVE CONTROL OVER STATE TAX LEGISLATION THAN THE DUE PROCESS
CLAUSE JUSTIFIES. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















COMMISSIONER V. CONNELLY, 338 U.S. 258 


NO. 57.  ARGUED OCTOBER 21, 1949.  - DECIDED NOVEMBER 7, 1949.  - 84
U.S. APP. D.C. 260, 172 F.2D 877, REVERSED. 


A CIVIL SERVICE EMPLOYEE OF THE COAST GUARD WHO WAS ENROLLED
TEMPORARILY DURING THE WAR AS AN OFFICER IN THE COAST GUARD RESERVE
UNDER THE COAST GUARD AUXILIARY AND RESERVE ACT, 14 U.S.C. SEC. 307,
BUT WHO SERVED WITHOUT COMPENSATION OTHER THAN THAT OF HIS CIVILIAN
POSITION AND WHO PERFORMED AFTER ENROLLMENT DUTIES IDENTICAL WITH THOSE
HE HAD PREVIOUSLY PERFORMED, IS NOT ENTITLED TO THE $1,500 EXCLUSION
FROM GROSS INCOME PROVIDED BY SEC. 22(B)(13)(A) OF THE INTERNAL REVENUE
CODE IN THE CASE OF COMPENSATION RECEIVED "FOR ACTIVE SERVICE AS A
COMMISSIONED OFFICER" IN THE MILITARY OR NAVAL FORCES.  PP. 258-262. 

COMMISSIONER OF INTERNAL REVENUE V. CONNELLY ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE TAX COURT SUSTAINED THE COMMISSIONER OF INTERNAL REVENUE'S
DISALLOWANCE OF A CLAIM BY A TAXPAYER FOR EXCLUSION OF $1,500 FROM
GROSS INCOME PROVIDED BY SEC. 22(B)(13)(A) OF THE INTERNAL REVENUE
CODE.  8 T.C. 848.  THE COURT OF APPEALS REVERSED.  84 U.S. APP. D.C.
260, 172 F.2D 877.  THIS COURT GRANTED CERTIORARI.  337 U.S. 924. 
REVERSED, P. 262. 

MR. JUSTICE MINTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION WE HAVE HERE IS WHETHER RESPONDENT WILLIAM I. CONNELLY,
HEREAFTER REFERRED TO AS THE TAXPAYER, IS ENTITLED TO THE $1,500
EXCLUSION FROM GROSS INCOME PROVIDED BY SEC. 22(B)(13)(A) OF THE
INTERNAL REVENUE CODE.  FN1  THE TAXPAYER CLAIMED THIS ADDITIONAL
ALLOWANCE FOR THE TAXABLE YEARS 1943 AND 1944.  THE COMMISSIONER
DISALLOWED THE SUM DEDUCTED.  THE TAX COURT SUSTAINED THE COMMISSIONER,
8 T.C. 848, AND THE COURT OF APPEALS REVERSED, ONE JUDGE DISSENTING. 
84 U.S. APP. D.C. 260, 172 F.2D 877.  WE GRANTED CERTIORARI.  337 U.S.
924. 

ON FEBRUARY 19, 1943, TAXPAYER WAS A CIVIL SERVICE EMPLOYEE IN THE
LEGAL DIVISION OF THE COAST GUARD.  ON THAT DATE HE WAS ENROLLED AS A
LIEUTENANT COMMANDER WITHIN ONE OF THE SIX CLASSIFICATIONS WHICH
CONSTITUTED THE TEMPORARY MEMBERS OF THE COAST GUARD RESERVE.  FN2 HIS
ENROLLMENT WAS UNDER AUTHORITY OF THE COAST GUARD AUXILIARY AND RESERVE
ACT WHICH PROVIDED FOR THE ENROLLING OF "PERSONS (INCLUDING GOVERNMENT
EMPLOYEES WITHOUT PAY OTHER THAN THE COMPENSATION OF THEIR CIVILIAN
POSITIONS)."  55 STAT. 12, AS AMENDED, 56 STAT. 1021, 14 U.S.C. SEC.
307.  ON APRIL 24, 1944, HE WAS REENROLLED AS A COMMANDER AND HIS CLASS
WAS DESCRIBED AS "COAST GUARD CIVIL SERVICE EMPLOYEES." 

AFTER ENROLLMENT TAXPAYER PERFORMED DUTIES IDENTICAL WITH THOSE WHICH
HE HAD PREVIOUSLY PERFORMED.  AT THE TIME HE WAS ENROLLED, HIS CIVIL
SERVICE RATING WAS P-5.  LATER THIS RATING WAS RAISED TO P-6 AND HIS
RANK WAS INCREASED AT THE SAME TIME TO THAT OF COMMANDER.  HE RECEIVED
THE SAME PAY AFTER ENROLLMENT THAT HE HAD RECEIVED AS A CIVIL SERVICE
EMPLOYEE.  HE RECEIVED OVERTIME PAY AS A CIVIL SERVICE EMPLOYEE,
DEDUCTIONS WERE MADE FROM HIS PAY FOR CIVIL SERVICE RETIREMENT, AND HE
WAS SUBJECT TO CIVIL SERVICE REGULATIONS AS TO ANNUAL AND SICK LEAVE. 
IF HE HAD BEEN INJURED OR KILLED, HE WOULD HAVE RECEIVED BENEFITS AS A
CIVIL EMPLOYEE OF THE UNITED STATES.  HE WAS STILL SUBJECT TO THE
SELECTIVE TRAINING AND SERVICE ACT.  IN THE CASE OF SICKNESS OR DISEASE
CONTRACTED WHILE ON ACTIVE DUTY, TAXPAYER WAS ENTITLED TO THE SAME
HOSPITAL AND MEDICAL CARE AS MEMBERS OF THE REGULAR COAST GUARD, BUT
DENTAL CARE WAS NOT INCLUDED.  WHILE ON ACTIVE DUTY HE WAS REQUIRED TO
WEAR THE UNIFORM OF AND HE RECEIVED THE COURTESIES DUE HIS RANK.  HE
WAS SUBJECT TO THE LAWS, REGULATIONS AND ORDERS OF THE COAST GUARD AND
TO DISCIPLINARY ACTION. 

IT IS APPARENT THAT TAXPAYER HAD A DUAL STATUS.  HE HAD A LIMITED
MILITARY STATUS WITH THE RANK OF LIEUTENANT COMMANDER AND LATER THAT OF
COMMANDER.  HE HAD ALSO THE STATUS OF A CIVIL SERVICE EMPLOYEE,
CAREFULLY SO LIMITED AND WITH ALL THE PRIVILEGES INCIDENT TO SUCH
STATUS.  HE WAS GIVEN JUST ENOUGH MILITARY STATUS TO ENABLE HIM
EFFECTIVELY TO CARRY OUT HIS DUTIES.  ALL CONSIDERATIONS OF AN ECONOMIC
CHARACTER PERTAINING TO HIS EMPLOYMENT BY THE GOVERNMENT WERE RELATED
TO HIS CIVIL SERVICE STATUS. 

IN MITCHELL V. COHEN, 333 U.S. 411, WE HELD THAT ONE EMPLOYED IN A
DEPARTMENT OF THE FEDERAL GOVERNMENT AS A CIVIL SERVICE EMPLOYEE WHO
WAS ENROLLED TEMPORARILY IN THE VOLUNTEER PORT SECURITY FORCE OF THE
COAST GUARD RESERVE AND WHO WORKED PART-TIME AS A RESERVIST WITHOUT PAY
WAS NOT AN "EX-SERVICEMAN" WITHIN THE MEANING OF THE VETERANS'
PREFERENCE ACT.  LOOKING TO THE LEGISLATIVE HISTORY OF THAT STATUTE, WE
FOUND THAT THE OVER-SHADOWING PURPOSE OF THE ACT WAS TO FAVOR THOSE WHO
HAD A REAL RECORD OF MILITARY SERVICE. 

THE COURT OF APPEALS FOUND IN THIS CASE THAT BY THE APPLICATION OF
"LONG-ESTABLISHED CRITERIA - OATH OF OFFICE, MILITARY DUTY, AND
SUBJECTION TO MILITARY DISCIPLINE" TAXPAYER HAD ACQUIRED A MILITARY
STATUS AND WAS THUS ENTITLED TO THE EXCLUSION.  WE AGREE THAT HE HAD A
MILITARY STATUS FOR SOME PURPOSES.  BUT THE QUESTION FOR TAX PURPOSES
IS WHETHER HE RECEIVED HIS PAY IN THAT STATUS.  TO COME WITHIN SEC.
22(B)(13)(A), HE MUST HAVE RECEIVED HIS COMPENSATION "FOR ACTIVE
SERVICE AS A COMMISSIONED OFFICER."  WE UNDERSTAND THIS TO MEAN THAT IF
TAXPAYER RECEIVED HIS PAY AS A COMMISSIONED OFFICER, HE WOULD BE
ENTITLED TO THE EXCLUSION.  IT SEEMS EQUALLY PLAIN THAT IF HE RECEIVED
HIS PAY AS A CIVIL SERVICE EMPLOYEE AND SERVED WITHOUT MILITARY PAY AND
ALLOWANCES, HE IS NOT ENTITLED TO THE CLAIMED EXCLUSION.  FN3  AS IN
THE COHEN CASE, THE EMPHASIS OF THE STATUTE IS ON A MILITARY AND NOT ON
A CIVILIAN STATUS. 

AND IT IS CLEAR THAT TAXPAYER RECEIVED HIS COMPENSATION IN A CIVILIAN
STATUS.  AS NOTED, SEC. 307 OF THE COAST GUARD AUXILIARY AND RESERVE
ACT PROVIDED FOR THE ENROLLING OF "PERSONS (INCLUDING GOVERNMENT
EMPLOYEES WITHOUT PAY OTHER THAN THE COMPENSATION OF THEIR CIVILIAN
POSITIONS)."  THE COMMITTEE ON MERCHANT MARINE AND FISHERIES REFERRED
TO THE AMENDMENT BY WHICH THE PARENTHETICAL PHRASE WAS ADDED TO THE
STATUTE AS BEING "ADVISABLE TO CLARIFY THIS AUTHORITY (ENROLLMENT OF
TEMPORARY MEMBERS WITHOUT THE PAY OF THEIR MILITARY RANK) AND RESOLVE
ANY DOUBT OF ITS APPLICABILITY TO GOVERNMENT EMPLOYEES BY SPECIFICALLY
PROVIDING FOR TEMPORARY MEMBERSHIP IN THE COAST GUARD RESERVE OF
GOVERNMENT EMPLOYEES WITHOUT MILITARY PAY BUT WITH CONTINUANCE IN THEIR
CIVILIAN POSITIONS AND THE RECEIPT OF THE COMPENSATION THEREOF."  FN4 

FROM THE DATE OF THE ENACTMENT OF THE ENROLLMENT STATUTE THERE SEEMS
TO HAVE BEEN NO DEVIATION FROM THE VIEW THAT THE TAXPAYER WAS TO BE
PAID AS A CIVIL SERVICE EMPLOYEE AND NOT AS A COMMISSIONED OFFICER. 
HIS PAY CAME FROM CONGRESSIONAL APPROPRIATIONS ALLOCATED TO CIVILIAN
POSITIONS.  HIS PAY WAS AT THE CIVIL SERVICE SCALE FOR HIS GRADE, WITH
OVERTIME PAY AND APPROPRIATE DEDUCTIONS FOR CIVIL SERVICE RETIREMENT. 
HIS CONTINUING CIVILIAN STATUS IS UNDERLINED BY HIS RECEIPT OF A CIVIL
SERVICE PROMOTION, FROM WHICH HIS MILITARY PROMOTION RESULTED.  INDEED,
THE TAXPAYER'S CERTIFICATE OF DISENROLLMENT DESCRIBED THE DUTY
PERFORMED AS "CHIEF OF ADMIRALTY AND MARITIME SECTION HAVING CIVIL
SERVICE STATUS, RECEIVING CIVILIAN BUT NO MILITARY PAY, AND HOLDING
RANK OF COMMANDER AS A TEMPORARY MEMBER OF THE COAST GUARD RESERVE." 

THE COURT OF APPEALS IGNORED THE STATUS IN WHICH TAXPAYER WAS
COMPENSATED AND GAVE EFFECT TO HIS MILITARY STATUS WHICH WAS PROVIDED
ONLY TO FACILITATE THE PERFORMANCE OF HIS DUTIES IN WARTIME.  FN5
TAXPAYER'S RANK WAS FOR THE PURPOSE OF GETTING THE JOB DONE, AND NOT
FOR THE PURPOSE OF RECEIVING COMPENSATION. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  AS AMENDED BY REVENUE ACT OF 1945, SEC. 141(A), 59 STAT. 571: 

"(13)  ADDITIONAL ALLOWANCE FOR MILITARY AND NAVAL PERSONNEL.  - 

"(A)  IN THE CASE OF COMPENSATION RECEIVED  ...  FOR ACTIVE SERVICE
AS A COMMISSIONED OFFICER ...  IN THE MILITARY OR NAVAL FORCES OF THE
UNITED STATES  ...  SO MUCH OF SUCH COMPENSATION AS DOES NOT EXCEED
$1,500." 

FN2  THESE CLASSIFICATIONS AND THE ORGANIZATION OF THE COAST GUARD
RESERVE ARE DETAILED IN MITCHELL V. COHEN, 333 U.S. 411, 412-14. 

FN3  SEE JUDGE EDGERTON, DISSENTING IN PART, BELOW: 

"...  I WOULD BE UNABLE, IN VIEW OF THE RULE THAT TAX EXEMPTIONS ARE
STRICTLY CONSTRUED, TO SAY THAT THE COMPENSATION OF A MAN WHO DID NOT
RECEIVE A COMMISSIONED OFFICER'S PAY BUT SERVED 'WITHOUT PAY OTHER THAN
THE COMPENSATION OF (HIS) CIVILIAN POSITIONS' WAS 'RECEIVED  ...  FOR
ACTIVE SERVICE AS A COMMISSIONED OFFICER.'"  84 U.S. APP. D.C. AT 263,
172 F.2D AT 880. 

FN4  H.R. REP. NO. 2525, 77TH CONG., 2D SESS., 3(1942).  THE
COMMITTEE ADDED THAT THE AMENDMENT "WOULD OBVIATE ANY POSSIBLE
IMPAIRMENT OF THE RIGHT OF SUCH EMPLOYEES TO CONTINUE TO RECEIVE THE
COMPENSATION OF THEIR CIVILIAN POSITIONS FOR THE ENTIRE PERIOD OF THEIR
PERFORMANCE OF ACTIVE COAST GUARD DUTY AS SUCH TEMPORARY MEMBERS. 
THERE WILL BE LITTLE, IF ANY, CHANGE IN THE NATURE OF THEIR DUTIES
AFTER ENROLLMENT." 

FN5  OFFICE MEMORANDUM NO. 13-43 ISSUED BY THE COMMANDANT OF THE
COAST GUARD ON JULY 24, 1943, STATES: 

"6.  THE ATTENTION OF HEADS OF OFFICES AND CHIEFS OF DIVISIONS IS
INVITED TO THE FACT THAT ONE OF THE PRINCIPAL REASONS FOR THE INDUCTION
OF CIVIL SERVICE EMPLOYEES INTO THE MILITARY ESTABLISHMENT AS TEMPORARY
MEMBERS OF THE RESERVE WAS TO OBTAIN A HOMOGENEOUS ORGANIZATION ON A
MILITARY BASIS AND TO ELIMINATE DIFFERENCES IN PROCEDURE AND PRACTICES
APPLICABLE TO MILITARY PERSONNEL AND CIVIL SERVICE PERSONNEL ENGAGED ON
EXACTLY THE SAME DUTY  ...." 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






BOYD V. GRAND TRUNK W.R. CO., 338 U.S. 263 


NO. 17.  ARGUED OCTOBER 11, 1949.  - DECIDED NOVEMBER 7, 1949.  - 321
MICH. 693, 33 N.W.2D 120, REVERSED. 


AN AGREEMENT BETWEEN A RAILROAD AND AN EMPLOYEE INJURED BY ITS
NEGLIGENCE, WHICH LIMITS THE VENUE OF ANY ACTION THEREAFTER BROUGHT BY
THE EMPLOYEE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT AND DEPRIVES
HIM OF HIS RIGHT TO BRING AN ACTION IN ANY FORUM AUTHORIZED BY THE ACT,
IS VOID AS CONFLICTING WITH THE ACT.  PP. 263-266. 

BOYD V. GRAND TRUNK WESTERN RAILROAD COMPANY. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

IN A SUIT BROUGHT BY A RAILROAD COMPANY IN A STATE COURT OF MICHIGAN
TO ENJOIN PETITIONER FROM PROSECUTING A FEDERAL EMPLOYERS' LIABILITY
ACT CASE AGAINST IT IN ILLINOIS, THE TRIAL COURT HELD THAT A CONTRACT
RESTRICTING THE CHOICE OF VENUE WAS VOID AND DISMISSED THE SUIT.  THE
MICHIGAN SUPREME COURT REVERSED.  321 MICH. 693, 33 N.W.2D 120.  THIS
COURT GRANTED CERTIORARI.  337 U.S. 923.  REVERSED, P. 266. 

PER CURIAM. 

IN ISSUE HERE IS THE VALIDITY OF A CONTRACT RESTRICTING THE CHOICE OF
VENUE FOR AN ACTION BASED UPON THE FEDERAL EMPLOYERS' LIABILITY ACT. 
FN1  PETITIONER WAS INJURED IN THE COURSE OF HIS DUTIES AS AN EMPLOYEE
OF RESPONDENT RAILROAD IN NOVEMBER 1946.  TWICE DURING THE FOLLOWING
MONTH PETITIONER WAS ADVANCED FIFTY DOLLARS BY RESPONDENT.  ON EACH OF
THESE OCCASIONS PETITIONER SIGNED AN AGREEMENT STIPULATING THAT IF HIS
CLAIM COULD NOT BE SETTLED AND HE ELECTED TO SUE, "SUCH SUIT SHALL BE
COMMENCED WITHIN THE COUNTY OR DISTRICT WHERE I RESIDED AT THE TIME MY
INJURIES WERE SUSTAINED OR IN THE COUNTY OR DISTRICT WHERE MY INJURIES
WERE SUSTAINED AND NOT ELSEWHERE."  FN2 ALTHOUGH THIS PROVISION DEFINED
THE AVAILABLE FORUM AS EITHER THE CIRCUIT COURT OF CALHOUN COUNTY,
MICHIGAN, OR THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN, PETITIONER BROUGHT AN ACTION IN THE SUPERIOR COURT OF COOK
COUNTY, ILLINOIS.  TO ENJOIN PETITIONER'S PROSECUTION OF THE ILLINOIS
CASE, RESPONDENT INSTITUTED THIS SUIT.  THE MICHIGAN CIRCUIT COURT HELD
THAT THE CONTRACT RESTRICTING THE CHOICE OF VENUE WAS VOID AND
DISMISSED THE SUIT.  THE MICHIGAN SUPREME COURT REVERSED.  321 MICH.
693, 33 N.W.2D 120(1948). 

CERTIORARI WAS GRANTED, 337 U.S. 923(1949), BECAUSE THE FEDERAL AND
STATE COURTS WHICH HAVE CONSIDERED THE ISSUE HAVE REACHED CONFLICTING
RESULTS.  FN3  WE AGREE WITH THOSE COURTS WHICH HAVE HELD THAT
CONTRACTS LIMITING THE CHOICE OF VENUE ARE VOID AS CONFLICTING WITH THE
LIABILITY ACT. 

ACTION MAY 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 JURISDICTION OF THE COURTS OF THE
UNITED STATES UNDER THIS ACT SHALL BE CONCURRENT WITH THAT OF THE
COURTS OF THE SEVERAL STATES, AND NO CASE ARISING UNDER THIS ACT AND
BROUGHT IN ANY STATE COURT OF COMPETENT JURISDICTION SHALL BE REMOVED
TO ANY COURT OF THE UNITED STATES."  IT IS NOT DISPUTED THAT RESPONDENT
IS LIABLE TO SUIT IN COOK COUNTY, ILLINOIS, IN ACCORDANCE WITH THIS
PROVISION.  WE HOLD THAT PETITIONER'S RIGHT TO BRING THE SUIT IN ANY
ELIGIBLE FORUM IS A RIGHT OF SUFFICIENT SUBSTANTIALITY TO BE INCLUDED
WITHIN THE CONGRESSIONAL MANDATE OF SEC. 5 OF THE 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 ACT, SHALL TO THAT EXTENT BE VOID  ...  "
THE CONTRACT BEFORE US IS THEREFORE VOID. 

ANY OTHER RESULT WOULD BE INCONSISTENT WITH DUNCAN V. THOMPSON, 315
U.S. 1(1942).  THAT OPINION REVIEWED THE LEGISLATIVE HISTORY AND
CONCLUDED THAT "CONGRESS WANTED SEC. 5 TO HAVE THE FULL EFFECT THAT ITS
COMPREHENSIVE PHRASEOLOGY IMPLIES."  315 U.S. AT 6.  IN THAT CASE AS IN
THIS, THE CONTRACT BEFORE THE COURT WAS SIGNED AFTER THE INJURY
OCCURRED.  THE COURT BELOW, IN HOLDING THAT AN AGREEMENT DELIMITING
VENUE SHOULD BE ENFORCED IF IT WAS REACHED AFTER THE ACCIDENT,
DISREGARDED DUNCAN. 

THE VIGOR AND VALIDITY OF THE DUNCAN DECISION WAS NOT IMPAIRED BY
CALLEN V. PENNSYLVANIA R. CO., 332 U.S. 625(1948).  WE THERE
DISTINGUISHED A FULL COMPROMISE ENABLING THE PARTIES TO SETTLE THEIR
DISPUTE WITHOUT LITIGATION, WHICH WE HELD DID NOT CONTRAVENE THE ACT,
FROM A DEVICE WHICH OBSTRUCTS THE RIGHT OF THE LIABILITY ACT PLAINTIFF
TO SECURE THE MAXIMUM RECOVERY IF HE SHOULD ELECT JUDICIAL TRIAL OF HIS
CAUSE.  FN4  AND NOTHING IN EX PARTE COLLETT, 337 U.S. 55(1949),
AFFECTS THE INITIAL CHOICE OF VENUE AFFORDED LIABILITY ACT PLAINTIFFS. 
WE STATED EXPRESSLY THAT THE SECTION OF THE JUDICIAL CODE THERE
INVOLVED, 28 U.S.C. SEC. 1404(A), "DOES NOT LIMIT OR OTHERWISE MODIFY
ANY RIGHT GRANTED IN SEC. 6 OF THE LIABILITY ACT OR ELSEWHERE TO BRING
SUIT IN A PARTICULAR DISTRICT.  AN ACTION MAY STILL BE BROUGHT IN ANY
COURT, STATE OR FEDERAL, IN WHICH IT MIGHT HAVE BEEN BROUGHT
PREVIOUSLY."  337 U.S. AT 60. 

THE RIGHT TO SELECT THE FORUM GRANTED IN SEC. 6 IS A SUBSTANTIAL
RIGHT.  IT WOULD THWART THE EXPRESS PURPOSE OF THE FEDERAL EMPLOYERS'
LIABILITY ACT TO SANCTION DEFEAT OF THAT RIGHT BY THE DEVICE AT BAR. 
REVERSED. 

FN1  35 STAT. 65, AS AMENDED, 45 U.S.C. SEC. 51. 

FN2  THE AGREEMENT ALSO PROVIDED THAT THE SUMS ADVANCED WOULD BE
DEDUCTED FROM WHATEVER SETTLEMENT OR RECOVERY PETITIONER FINALLY
ACHIEVED.  AS TO THIS, THE PROVISO IN SEC. 5 OF THE LIABILITY ACT
SPECIFIES "THAT IN ANY ACTION BROUGHT AGAINST ANY SUCH COMMON CARRIER
UNDER OR BY VIRTUE OF ANY OF THE PROVISIONS OF THIS ACT, SUCH COMMON
CARRIER MAY SET OFF THEREIN ANY SUM IT HAS CONTRIBUTED OR PAID TO ANY
INSURANCE, RELIEF BENEFIT, OR INDEMNITY THAT MAY HAVE BEEN PAID TO THE
INJURED EMPLOYEE OR THE PERSON ENTITLED THERETO ON ACCOUNT OF THE
INJURY OR DEATH FOR WHICH SAID ACTION WAS BROUGHT."  REFERRING TO THIS
PROVISION, AND INTERPRETING A CONTRACT SIMILAR TO THE ONE HERE
INVOLVED, AT LEAST ONE FEDERAL COURT HAS HELD THAT "THE CONTRACT TO
WAIVE THE VENUE PROVISIONS IS OF NO EFFECT  ...  BECAUSE THERE WAS NO
CONSIDERATION FOR IT."  AKERLY V. NEW YORK C.R. CO., 168 F.2D 812,
815(C.A.6TH CIR. 1948). 

FN3  IN ACCORD WITH THE DECISION BELOW ARE:  ROLAND V. ATCHISON, T. &
S.F.R. CO., 65 F.SUPP.  630(N.D. ILL. 1946); HERRINGTON V. THOMPSON, 61
F.SUPP.  903(W.D. MO. 1945); CLARK V. LOWDEN, 48 F.SUPP.  261(D. MINN.
1942); DETWILER V. CHICAGO, R.I. & P.R. CO., 15 F.SUPP.  541(D. MINN.
1936); DETWILER V. LOWDEN, 198 MINN. 185, 188, 269 N.W. 367, 369, 107
A.L.R. 1054, 1059(1936).  IN CONFLICT WITH THE RULING BEFORE US ARE:
KRENGER V. PENNSYLVANIA R. CO., 174 F.2D 556(C.A.2D CIR. 1949),
PETITION FOR CERTIORARI DENIED THIS DAY, SEE POST, P. 866; AKERLY V.
NEW YORK C.R. CO., 168 F.2D 812(C.A.6TH CIR. 1948); FLEMING V. HUSTED,
68 F.SUPP.  900(S.D. IOWA 1946); SHERMAN V. PERE MARQUETTE R. CO., 62
F.SUPP.  590(N.D. ILL. 1945); PETERSEN V. OGDEN U.R. & D. CO., 110 UTAH
573, 175 P.2D 744(1946); CF. PORTER V. FLEMING, 74 F.SUPP.  378(D.
MINN. 1947). 

FN4  SEE KRENGER, SUPRA NOTE 3, 174 F.2D AT 558; ID. AT
561(CONCURRING OPINION OF L. HAND, C.J.); AKERLY, SUPRA NOTE 3, 168
F.2D AT 815; PETERSEN, SUPRA, NOTE 3, 110 UTAH AT 579, 175 P.2D AT
747. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON CONCUR IN THE RESULT
BUT UPON THE GROUNDS STATED BY CHIEF JUDGE HAND IN KRENGER V.
PENNSYLVANIA R. CO., 174 F.2D 556, AT 560(C.A.2D CIR. 1949). 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MINTON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :























FAULKNER V. GIBBS, 338 U.S. 267 


NO. 19.  ARGUED OCTOBER 12, 1949.  - DECIDED NOVEMBER 7, 1949.  - 170
F.2D 34, AFFIRMED. 


THE CONCURRENT FINDINGS OF THE DISTRICT COURT AND THE COURT OF
APPEALS, THAT RESPONDENT'S PATENT NO. 1,906,260 WAS VALID AND INFRINGED
BY PETITIONER, ARE NOT SHOWN TO BE CLEARLY ERRONEOUS, AND THE JUDGMENT
BELOW IS AFFIRMED.  HALLIBURTON OIL WELL CEMENTING CO. V. WALKER, 329
U.S. 1, DISTINGUISHED.  PP. 267-268. 

FAULKNER V. GIBBS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

IN A SUIT BROUGHT BY RESPONDENT AGAINST PETITIONER FOR INFRINGEMENT
OF A PATENT, THE DISTRICT COURT HELD THE PATENT VALID AND INFRINGED. 
THE COURT OF APPEALS AFFIRMED.  170 F.2D 34.  THIS COURT GRANTED
CERTIORARI.  336 U.S. 935.  AFFIRMED, P. 268. 

PER CURIAM. 

THE CONTROVERSY HERE CONCERNED THE VALIDITY OF PATENT NO. 1,906,260,
ISSUED TO RESPONDENT, MAY 2, 1933, AND ITS ALLEGED INFRINGEMENT BY
PETITIONER.  THE DISTRICT COURT FOUND THE PATENT TO BE VALID AND
INFRINGED.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED, 170
F.2D 34(1948).  BEING MOVED BY THE PETITION FOR CERTIORARI THAT THERE
WAS A CONFLICT WITH HALLIBURTON OIL WELL CEMENTING CO. V. WALKER, 329
U.S. 1(1946), WE GRANTED CERTIORARI. 

THE RECORD, BRIEFS AND ARGUMENTS OF COUNSEL LEAD US TO THE VIEW THAT
HALLIBURTON, SUPRA, IS INAPPOSITE.  WE THERE HELD THE PATENT INVALID
BECAUSE ITS LANGUAGE WAS TOO BROAD AT THE PRECISE POINT OF NOVELTY.  IN
THE INSTANT CASE, THE PATENT HAS BEEN SUSTAINED BECAUSE OF THE FACT OF
COMBINATION RATHER THAN THE NOVELTY OF ANY PARTICULAR ELEMENT. 

AFTER THE SUIT IN THIS CAUSE WAS INITIATED IN THE DISTRICT COURT,
PETITIONER MODIFIED HIS DEVICE.  THE COURTS BELOW HELD THAT THIS
MODIFICATION WAS INSUBSTANTIAL AND DID NOT PLACE PETITIONER OUTSIDE THE
SCOPE OF RESPONDENT'S PATENT. 

WE WILL NOT DISTURB THE CONCURRENT FINDINGS UPON THE ISSUES PRESENTED
TO US IN THE PETITION FOR CERTIORARI.  WE ARE NOT PERSUADED THAT THE
FINDINGS ARE SHOWN TO BE CLEARLY ERRONEOUS.  THE JUDGMENT IS AFFIRMED 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE LANGUAGE OF THE CLAIMS
WAS TOO BROAD AT THE PRECISE POINT WHERE THERE WAS NOVELTY, IF THERE
WAS NOVELTY ANYWHERE. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















LARSON V. DOMESTIC & FOREIGN CORP., 337 U.S. 682 


NO. 31.  ARGUED NOVEMBER 12, 1948.  - DECIDED JUNE 27, 1949.  - 83 U.S.
APP. D.C. 13, 165 F.2D 235, REVERSED. 


1.  PLAINTIFF, A PRIVATE CORPORATION, BROUGHT SUIT IN A FEDERAL
DISTRICT COURT AGAINST THE ADMINISTRATOR OF THE WAR ASSETS
ADMINISTRATION, AN AGENCY OF THE UNITED STATES, IN HIS OFFICIAL
CAPACITY.  THE COMPLAINT ALLEGED THAT THE ADMINISTRATION HAD SOLD
CERTAIN SURPLUS COAL TO THE PLAINTIFF, BUT HAD REFUSED TO DELIVER IT
AND HAD MADE A NEW CONTRACT TO SELL IT TO OTHERS.  THE PRAYER WAS FOR
AN INJUNCTION PROHIBITING THE ADMINISTRATOR, HIS AGENTS AND ALL PERSONS
ACTING UNDER THEIR DIRECTION, FROM SELLING OR DELIVERING THE COAL TO
ANYONE OTHER THAN THE PLAINTIFF AND FOR A DECLARATION THAT THE SALE TO
THE PLAINTIFF WAS VALID AND THE SALE TO THE SECOND PURCHASER INVALID. 
THERE WAS NO ALLEGATION THAT THE CONTRACT OF SALE WAS WITH THE
ADMINISTRATOR PERSONALLY, NO ALLEGATION OF ANY STATUTORY LIMITATION ON
HIS POWERS AS A SALES AGENT, AND NO CLAIM THAT HIS ACTION CONSTITUTED
AN UNCONSTITUTIONAL TAKING OF PROPERTY.  HELD:  THE SUIT WAS ONE
AGAINST THE UNITED STATES AND, IN THE ABSENCE OF CONSENT BY THE UNITED
STATES, THE DISTRICT COURT WAS WITHOUT JURISDICTION.  PP. 684-705. 

2.  IN DETERMINING WHETHER A SUIT NOMINALLY AGAINST AN OFFICER IS
AGAINST THE OFFICER INDIVIDUALLY OR AGAINST THE SOVEREIGN, THE CRUCIAL
QUESTION IS WHETHER THE RELIEF SOUGHT IS RELIEF AGAINST THE SOVEREIGN. 
PP. 687-688. 

3.  IF THE ACTIONS OF AN OFFICER DO NOT CONFLICT WITH THE TERMS OF
HIS VALID STATUTORY AUTHORITY, THEN THEY ARE ACTIONS OF THE SOVEREIGN,
WHETHER OR NOT THEY ARE TORTIOUS UNDER GENERAL LAW, IF THEY WOULD BE
REGARDED AS THE ACTIONS OF A PRIVATE PRINCIPAL UNDER THE NORMAL RULES
OF AGENCY.  A GOVERNMENT OFFICER IS NOT THEREBY NECESSARILY IMMUNIZED
FROM LIABILITY, IF HIS ACTION IS SUCH THAT LIABILITY WOULD BE IMPOSED
BY THE GENERAL LAW OF TORTS.  BUT THE ACTION ITSELF CANNOT BE ENJOINED
OR DIRECTED, SINCE IT IS ALSO THE ACTION OF THE SOVEREIGN.  UNITED
STATES V. LEE, 106 U.S. 196, DISTINGUISHED.  PP. 689-697. 

4.  THE ACTION OF AN OFFICER OF THE SOVEREIGN (BE IT HOLDING, TAKING
OR OTHERWISE LEGALLY AFFECTING A PLAINTIFF'S PROPERTY) CAN BE REGARDED
AS SO "ILLEGAL" AS TO PERMIT A SUIT FOR SPECIFIC RELIEF AGAINST THE
OFFICER AS AN INDIVIDUAL ONLY IF IT IS NOT WITHIN THE OFFICER'S
STATUTORY POWERS OR, IF WITHIN THOSE POWERS, ONLY IF THE POWERS, OR
THEIR EXERCISE IN THE PARTICULAR CASE, ARE CONSTITUTIONALLY VOID. 
GOLDBERG V. DANIELS, 231 U.S. 218, FOLLOWED; GOLTRA V. WEEKS, 271 U.S.
536, DISCUSSED.  PP. 697-702. 

5.  SINCE THE VERY BASIS OF PLAINTIFF'S ACTION IS THAT THE
ADMINISTRATOR WAS AUTHORIZED TO ENTER INTO A BINDING CONTRACT TO SELL
THE GOVERNMENT'S COAL, THERE IS NO ALLEGATION OF ANY STATUTORY
LIMITATION ON HIS AUTHORITY, AS SALES AGENT, TO DELIVER ONLY WHEN HE
BELIEVED HE WAS REQUIRED TO DO SO UNDER THE CONTRACT, AND THERE IS NO
CLAIM THAT HIS ACTION IN REFUSING TO DELIVER CONSTITUTED AN
UNCONSTITUTIONAL TAKING OF PLAINTIFF'S PROPERTY, THE ADMINISTRATOR'S
ACTION IN SO REFUSING WAS THAT OF THE UNITED STATES AND THE EFFORT TO
ENJOIN IT MUST FAIL AS AN EFFORT TO ENJOIN THE UNITED STATES.  P. 703. 

6.  IN THE ABSENCE OF A CLAIM OF CONSTITUTIONAL LIMITATION, THE
NECESSITY OF PERMITTING THE GOVERNMENT TO CARRY OUT ITS FUNCTIONS
UNHAMPERED BY DIRECT JUDICIAL INTERVENTION OUTWEIGHS THE POSSIBLE
DISADVANTAGE TO THE CITIZEN IN BEING RELEGATED TO THE RECOVERY OF MONEY
DAMAGES AFTER THE EVENT.  PP. 703-704. 

7.  IT IS NOT FOR THIS COURT TO EXAMINE THE NECESSITY OF IMMUNITY OF
THE PARTICULAR GOVERNMENT AGENCY INVOLVED, SINCE THAT IS A FUNCTION OF
THE CONGRESS.  PP. 704-705. 

LARSON, WAR ASSETS ADMINISTRATOR AND SURPLUS PROPERTY ADMINISTRATOR,
V. DOMESTIC AND FOREIGN COMMERCE CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

A SUIT AGAINST THE ADMINISTRATOR OF THE WAR ASSETS ADMINISTRATION WAS
DISMISSED BY THE DISTRICT COURT, FOR WANT OF JURISDICTION, AS A SUIT
AGAINST THE UNITED STATES.  THE COURT OF APPEALS REVERSED.  83 U.S.
APP. D.C. 13, 165 F.2D 235.  THIS COURT GRANTED CERTIORARI, AND LARSON
WAS SUBSTITUTED FOR LITTLEJOHN AS THE PARTY PETITIONER.  333 U.S. 872. 
REVERSED, P. 705. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA BY THE DOMESTIC & FOREIGN COMMERCE CORPORATION
AGAINST ROBERT M. LITTLEJOHN, THE THEN HEAD OF THE WAR ASSETS
ADMINISTRATION.  FN1  THE COMPLAINT ALLEGED THAT THE ADMINISTRATION HAD
SOLD CERTAIN SURPLUS COAL TO THE PLAINTIFF; THAT THE ADMINISTRATOR
REFUSED TO DELIVER THE COAL BUT, ON THE CONTRARY, HAD ENTERED INTO A
NEW CONTRACT TO SELL IT TO OTHERS.  THE PRAYER WAS FOR AN INJUNCTION
PROHIBITING THE ADMINISTRATOR FROM SELLING OR DELIVERING THE COAL TO
ANYONE OTHER THAN THE PLAINTIFF AND FOR A DECLARATION THAT THE SALE TO
THE PLAINTIFF WAS VALID AND THE SALE TO THE SECOND PURCHASER INVALID. 

A TEMPORARY RESTRAINING ORDER WAS ISSUED EX PARTE.  AT THE SUBSEQUENT
HEARING ON THE ISSUANCE OF A PRELIMINARY INJUNCTION, THE DEFENDANT
MOVED TO DISMISS THE COMPLAINT ON THE GROUND, AMONG OTHERS, THAT THE
COURT DID NOT HAVE JURISDICTION BECAUSE THE SUIT WAS ONE AGAINST THE
UNITED STATES.  THE MOTION WAS GRANTED.  THE COURT OF APPEALS REVERSED,
HOLDING THAT THE JURISDICTIONAL CAPACITY OF THE COURT DEPENDED ON
WHETHER OR NOT TITLE TO THE COAL HAD PASSED.  FN2  SINCE THIS WAS ALSO
ONE OF THE QUESTIONS ON THE MERITS, IT REMANDED THE CASE FOR TRIAL.  WE
GRANTED CERTIORARI.  FN3  333 U.S. 872. 

THE CONTROVERSY ON THE MERITS CONCERNS THE INTERPRETATION TO BE GIVEN
TO THE CONTRACT OF SALE.  THE WAR ASSETS ADMINISTRATION CONSTRUED THE
CONTRACT AS REQUIRING THE PLAINTIFF TO DEPOSIT FUNDS TO PAY FOR THE
COAL IN ADVANCE AND, WHEN AN UNSATISFACTORY LETTER OF CREDIT WAS
OFFERED IN PLACE OF A DEPOSIT, IT CONSIDERED THAT THE CONTRACT WAS
BREACHED.  THE RESPONDENT, ON THE OTHER HAND, CONSTRUED THE CONTRACT AS
REQUIRING PAYMENT ONLY ON DELIVERY OF THE DOCUMENTS COVERING THE COAL
SHIPMENT.  IN ITS VIEW, IT WAS NOT OBLIGED TO DEPOSIT ANY FUNDS IN
ADVANCE OF SHIPMENT AND, THEREFORE, HAD NOT BREACHED THE CONTRACT BY
FAILING TO DO SO. 

A SECOND QUESTION, RELATED TO BUT DIFFERENT FROM THE QUESTION OF
BREACH, WAS WHETHER LEGAL TITLE TO THE COAL HAD PASSED TO THE
RESPONDENT WHEN THE CONTRACT WAS MADE.  IF THE CONTRACT REQUIRED THE
DEPOSIT OF FUNDS THEN, OF COURSE, TITLE COULD NOT PASS UNTIL THE
CONTRACT TERMS WERE COMPLIED WITH.  IF, ON THE OTHER HAND, THE CONTRACT
REQUIRED PAYMENT ONLY ON THE DELIVERY OF DOCUMENTS, A QUESTION REMAINED
AS TO WHETHER TITLE NEVERTHELESS PASSED AT THE TIME THE CONTRACT WAS
MADE. 

SINCE THESE QUESTIONS WERE NOT DECIDED BY THE COURTS BELOW WE DO NOT
PASS ON THEM HERE.  THEY ARE IMPORTANT ONLY INSOFAR AS THEY ILLUMINATE
THE BASIS ON WHICH IT WAS CLAIMED THAT THE DISTRICT COURT HAD
JURISDICTION OVER THE SUIT.  IT WAS NOT ALLEGED THAT THE CONTRACT FOR
THE SALE OF THE COAL WAS A CONTRACT WITH THE OFFICER PERSONALLY.  FN4
THE BASIS OF THE ACTION, ON THE CONTRARY, WAS THAT A CONTRACT HAD BEEN
ENTERED INTO WITH THE UNITED STATES.  NOR WAS IT CLAIMED THAT THE
ADMINISTRATOR HAD ANY PERSONAL INTEREST IN THIS COAL OR, INDEED, THAT
HE HIMSELF HAD TAKEN ANY WRONGFUL ACTION.  THE COMPLAINT WAS DIRECTED
AGAINST HIM BECAUSE OF HIS OFFICIAL FUNCTION AS CHIEF OF THE WAR ASSETS
ADMINISTRATION.  FN5  IT ASKED FOR AN INJUNCTION AGAINST HIM IN THAT
CAPACITY, AND AGAINST "HIS AGENTS, ASSISTANTS, DEPUTIES AND EMPLOYEES
AND ALL PERSONS ACTING OR ASSUMING TO ACT UNDER THEIR DIRECTION."  THE
RELIEF SOUGHT WAS, IN SHORT, RELIEF AGAINST THE ADMINISTRATION FOR
WRONGS ALLEGEDLY COMMITTED BY SUBORDINATE OFFICIALS IN THAT
ADMINISTRATION.  THE QUESTION PRESENTED TO THE COURTS BELOW WAS WHETHER
SUCH AN INJUNCTION WAS BARRED BY THE SOVEREIGN'S IMMUNITY FROM SUIT. 

BEFORE ANSWERING THAT QUESTION IT IS PERHAPS ADVISABLE TO STATE
CLEARLY WHAT IS AND WHAT IS NOT INVOLVED.  THERE IS NOT INVOLVED ANY
QUESTION OF THE IMMUNIZATION OF GOVERNMENT OFFICERS AGAINST
RESPONSIBILITY FOR THEIR WRONGFUL ACTIONS.  IF THOSE ACTIONS ARE SUCH
AS TO CREATE A PERSONAL LIABILITY, WHETHER SOUNDING IN TORT OR IN
CONTRACT, THE FACT THAT THE OFFICER IS AN INSTRUMENTALITY OF THE
SOVEREIGN DOES NOT, OF COURSE, FORBID A COURT FROM TAKING JURISDICTION
OVER A SUIT AGAINST HIM.  SLOAN SHIPYARDS V. U.S. FLEET CORP., 258 U.S.
549, 567(1922).  AS WAS SAID IN BRADY V. ROOSEVELT S.S. CO., 317 U.S.
575, 580(1943), THE PRINCIPLE THAT AN AGENT IS LIABLE FOR HIS OWN TORTS
"IS AN ANCIENT ONE AND APPLIES EVEN TO CERTAIN ACTS OF PUBLIC OFFICERS
OR PUBLIC INSTRUMENTALITIES."  BUT THE EXISTENCE OF A RIGHT TO SUE THE
OFFICER IS NOT THE ISSUE IN THIS CASE.  THE ISSUE HERE IS WHETHER THIS
PARTICULAR SUIT IS NOT ALSO, IN EFFECT, A SUIT AGAINST THE SOVEREIGN. 
IF IT IS, IT MUST FAIL, WHETHER OR NOT THE OFFICER MIGHT OTHERWISE BE
SUABLE. 

IF THE DENOMINATION OF THE PARTY DEFENDANT BY THE PLAINTIFF WERE THE
SOLE TEST OF WHETHER A SUIT WAS AGAINST THE OFFICER INDIVIDUALLY OR
AGAINST HIS PRINCIPAL, THE SOVEREIGN, OUR TASK WOULD BE EASY.  OUR
DECISION THEN WOULD BE THAT THE UNITED STATES IN NOT BEING SUED HERE
BECAUSE IT IS NOT NAMED AS A PARTY.  THIS WOULD BE SIMPLE AND WOULD NOT
LEAVE ROOM FOR CONTROVERSY.  BUT CONTROVERSY THERE HAS BEEN, IN THIS
FIELD ABOVE ALL OTHERS, BECAUSE IT HAS LONG BEEN ESTABLISHED THAT THE
CRUCIAL QUESTION IS WHETHER THE RELIEF SOUGHT IN A SUIT NOMINALLY
ADDRESSED TO THE OFFICER IS RELIEF AGAINST THE SOVEREIGN.  FN6  IN A
SUIT AGAINST THE OFFICER TO RECOVER DAMAGES FOR THE AGENT'S PERSONAL
ACTIONS, THAT QUESTION IS EASILY ANSWERED.  THE JUDGMENT SOUGHT WILL
NOT REQUIRE ACTION BY THE SOVEREIGN OR DISTURB THE SOVEREIGN'S
PROPERTY.  THERE IS, THEREFORE, NO JURISDICTIONAL DIFFICULTY.  FN7  THE
QUESTION BECOMES DIFFICULT AND THE AREA OF CONTROVERSY IS ENTERED WHEN
THE SUIT IS NOT ONE FOR DAMAGES BUT FOR SPECIFIC RELIEF:  I.E., THE
RECOVERY OF SPECIFIC PROPERTY OR MONIES, EJECTMENT FROM LAND, OR
INJUNCTION EITHER DIRECTING OR RESTRAINING THE DEFENDANT OFFICER'S
ACTIONS.  IN EACH SUCH CASE THE QUESTION IS DIRECTLY POSED AS TO
WHETHER, BY OBTAINING RELIEF AGAINST THE OFFICER, RELIEF WILL NOT, IN
EFFECT, BE OBTAINED AGAINST THE SOVEREIGN.  FOR THE SOVEREIGN CAN ACT
ONLY THROUGH AGENTS AND, WHEN AN AGENT'S ACTIONS ARE RESTRAINED, THE
SOVEREIGN ITSELF MAY, THROUGH HIM, BE RESTRAINED.  AS INDICATED, THIS
QUESTION DOES NOT ARISE BECAUSE OF ANY DISTINCTION BETWEEN LAW AND
EQUITY.  IT ARISES WHENEVER SUIT IS BROUGHT AGAINST AN OFFICER OF THE
SOVEREIGN IN WHICH THE RELIEF SOUGHT FROM HIM IS NOT COMPENSATION FOR
AN ALLEGED WRONG BUT, RATHER, THE PREVENTION OR DISCONTINUANCE, IN REM,
OF THE WRONG.  IN EACH SUCH CASE THE COMPULSION, WHICH THE COURT IS
ASKED TO IMPOSE, MAY BE COMPULSION AGAINST THE SOVEREIGN, ALTHOUGH
NOMINALLY DIRECTED AGAINST THE INDIVIDUAL OFFICER.  IF IT IS, THEN THE
SUIT IS BARRED, NOT BECAUSE IT IS A SUIT AGAINST AN OFFICER OF THE
GOVERNMENT, BUT BECAUSE IT IS, IN SUBSTANCE, A SUIT AGAINST THE
GOVERNMENT OVER WHICH THE COURT, IN THE ABSENCE OF CONSENT, HAS NO
JURISDICTION. 

THE RELIEF SOUGHT IN THIS CASE WAS NOT THE PAYMENT OF DAMAGES BY THE
INDIVIDUAL DEFENDANT.  FN8 TO THE CONTRARY, IT WAS ASKED THAT THE COURT
ORDER THE WAR ASSETS ADMINISTRATOR, HIS AGENTS, ASSISTANTS, DEPUTIES
AND EMPLOYEES AND ALL PERSONS ACTING UNDER THEIR DIRECTION, NOT TO SELL
THE COAL INVOLVED AND NOT TO DELIVER IT TO ANYONE OTHER THAN THE
RESPONDENT.  FN9  THE DISTRICT COURT HELD THAT THIS WAS RELIEF AGAINST
THE SOVEREIGN AND THEREFORE DISMISSED THE SUIT.  WE AGREE. 

THERE MAY BE, OF COURSE, SUITS FOR SPECIFIC RELIEF AGAINST OFFICERS
OF THE SOVEREIGN WHICH ARE NOT SUITS AGAINST THE SOVEREIGN.  IF THE
OFFICER PURPORTS TO ACT AS AN INDIVIDUAL AND NOT AS AN OFFICIAL, A SUIT
DIRECTED AGAINST THAT ACTION IS NOT A SUIT AGAINST THE SOVEREIGN.  IF
THE WAR ASSETS ADMINISTRATOR HAD COMPLETED A SALE OF HIS PERSONAL HOME,
HE PRESUMABLY COULD BE ENJOINED FROM LATER CONVEYING IT TO A THIRD
PERSON.  ON A SIMILAR THEORY, WHERE THE OFFICER'S POWERS ARE LIMITED BY
STATUTE, HIS ACTIONS BEYOND THOSE LIMITATIONS ARE CONSIDERED INDIVIDUAL
AND NOT SOVEREIGN ACTIONS.  THE OFFICER IS NOT DOING THE BUSINESS WHICH
THE SOVEREIGN HAS EMPOWERED HIM TO DO OR HE IS DOING IT IN A WAY WHICH
THE SOVEREIGN HAS FORBIDDEN.  HIS ACTIONS ARE ULTRA VIRES HIS AUTHORITY
AND THEREFORE MAY BE MADE THE OBJECT OF SPECIFIC RELIEF.  IT IS
IMPORTANT TO NOTE THAT IN SUCH CASES THE RELIEF CAN BE GRANTED, WITHOUT
IMPLEADING THE SOVEREIGN, ONLY BECAUSE OF THE OFFICER'S LACK OF
DELEGATED POWER.  A CLAIM OF ERROR IN THE EXERCISE OF THAT POWER IS
THEREFORE NOT SUFFICIENT.  AND, SINCE THE JURISDICTION OF THE COURT TO
HEAR THE CASE MAY DEPEND, AS WE HAVE RECENTLY RECOGNIZED, FN10  UPON
THE DECISION WHICH IT ULTIMATELY REACHES ON THE MERITS, IT IS NECESSARY
THAT THE PLAINTIFF SET OUT IN HIS COMPLAINT THE STATUTORY LIMITATION ON
WHICH HE RELIES. 

A SECOND TYPE OF CASE IS THAT IN WHICH THE STATUTE OR ORDER
CONFERRING POWER UPON THE OFFICER TO TAKE ACTION IN THE SOVEREIGN'S
NAME IS CLAIMED TO BE UNCONSTITUTIONAL.  ACTIONS FOR HABEAS CORPUS
AGAINST A WARDEN AND INJUNCTIONS AGAINST THE THREATENED ENFORCEMENT OF
UNCONSTITUTIONAL STATUTES ARE FAMILIAR EXAMPLES OF THIS TYPE.  HERE,
TOO, THE CONDUCT AGAINST WHICH SPECIFIC RELIEF IS SOUGHT IS BEYOND THE
OFFICER'S POWERS AND IS, THEREFORE, NOT THE CONDUCT OF THE SOVEREIGN. 
THE ONLY DIFFERENCE IS THAT IN THIS CASE THE POWER HAS BEEN CONFERRED
IN FORM BUT THE GRANT IS LACKING IN SUBSTANCE BECAUSE OF ITS
CONSTITUTIONAL INVALIDITY. 

THESE TWO TYPES HAVE FREQUENTLY BEEN RECOGNIZED BY THIS COURT AS THE
ONLY ONES IN WHICH A RESTRAINT MAY BE OBTAINED AGAINST THE CONDUCT OF
GOVERNMENT OFFICIALS.  THE RULE WAS STATED BY MR. JUSTICE HUGHES IN
PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 620(1912), WHERE HE SAID:  "
...  IN CASE OF AN INJURY THREATENED BY HIS ILLEGAL ACTION, THE OFFICER
CANNOT CLAIM IMMUNITY FROM INJUNCTION PROCESS.  THE PRINCIPLE HAS
FREQUENTLY BEEN APPLIED WITH RESPECT TO STATE OFFICERS SEEKING TO
ENFORCE UNCONSTITUTIONAL ENACTMENTS.  (CITING CASES.)  AND IT IS
EQUALLY APPLICABLE TO A FEDERAL OFFICER ACTING IN EXCESS OF HIS
AUTHORITY OR UNDER AN AUTHORITY NOT VALIDLY CONFERRED."  FN11 

IT IS NOT CONTENDED BY THE RESPONDENT THAT THE PRESENT CASE FALLS
WITHIN EITHER OF THESE CATEGORIES.  THERE WAS NO CLAIM MADE THAT THE
ADMINISTRATOR AND HIS AGENTS, ETC., WERE ACTING UNCONSTITUTIONALLY OR
PURSUANT TO AN UNCONSTITUTIONAL GRANT OF POWER.  NOR WAS THERE ANY
ALLEGATION OF A LIMITATION ON THE ADMINISTRATOR'S DELEGATED POWER TO
REFUSE SHIPMENT IN CASES IN WHICH HE BELIEVED THE UNITED STATES WAS NOT
OBLIGED TO DELIVER.  THERE WAS, IT IS TRUE, AN ALLEGATION THAT THE
ADMINISTRATOR WAS ACTING "ILLEGALLY," AND THAT THE REFUSAL TO DELIVER
WAS "UNAUTHORIZED."  BUT THESE ALLEGATIONS WERE NOT BASED AND DID NOT
PURPORT TO BE BASED UPON ANY LACK OF DELEGATED POWER.  FN12  NOR COULD
THEY BE, SINCE THE ADMINISTRATOR WAS EMPOWERED BY THE SOVEREIGN TO
ADMINISTER A GENERAL SALES PROGRAM ENCOMPASSING THE NEGOTIATION OF
CONTRACTS, THE SHIPMENT OF GOODS AND THE RECEIPT OF PAYMENT.  A NORMAL
CONCOMITANT OF SUCH POWERS, AS A MATTER OF GENERAL AGENCY LAW, IS THE
POWER TO REFUSE DELIVERY WHEN, IN THE AGENT'S VIEW, DELIVERY IS NOT
CALLED FOR UNDER A CONTRACT AND THE POWER TO SELL GOODS WHICH THE AGENT
BELIEVES ARE STILL HIS PRINCIPAL'S TO SELL. 

THE RESPONDENT'S CONTENTION, WHICH THE COURT OF APPEALS SUSTAINED,
WAS THAT THERE EXISTS A THIRD CATEGORY OF CASES IN WHICH THE ACTION OF
A GOVERNMENT OFFICIAL MAY BE RESTRAINED OR DIRECTED.  IF, SAYS THE
RESPONDENT, AN OFFICER OF THE GOVERNMENT WRONGLY TAKES OR HOLDS
SPECIFIC PROPERTY TO WHICH THE PLAINTIFF HAS TITLE, THEN HIS TAKING OR
HOLDING IS A TORT, AND "ILLEGAL" AS A MATTER OF GENERAL LAW, WHETHER OR
NOT IT BE WITHIN HIS DELEGATED POWERS.  HE MAY THEREFORE BE SUED
INDIVIDUALLY TO PREVENT THE "ILLEGAL" TAKING OR TO RECOVER THE PROPERTY
"ILLEGALLY" HELD. 

IF THIS IS AN ADEQUATE THEORY ON WHICH TO REST THE CONCLUSION THAT
THE RELIEF ASKED IS NOT RELIEF AGAINST THE SOVEREIGN, THEN THE
RESPONDENT'S COMPLAINT MADE OUT A SUFFICIENT BASIS FOR JURISDICTION. 
THE COMPLAINT ALLEGED THAT THE RESPONDENT'S CONTRACT WITH THE UNITED
STATES WAS AN IMMEDIATE CONTRACT OF SALE UNDER WHICH TITLE TO THE COAL
HAD PASSED.  THE COAL WAS THUS ALLEGED TO BE THE RESPONDENT'S COAL, NOT
THE UNITED STATES' COAL.  RETENTION OF IT BY THE ADMINISTRATOR AFTER
DEMAND WAS CLAIMED TO BE A CONVERSION; SALE TO A THIRD PARTY WOULD
AGGRAVATE THE CONVERSION.  SINCE THESE ACTIONS WERE TORTIOUS THEY WERE
"ILLEGAL" IN THE RESPONDENT'S SENSE AND HENCE WERE CONTENDED TO BE
INDIVIDUAL ACTIONS, NOT PROPERLY TAKEN ON BEHALF OF THE UNITED STATES,
WHICH COULD BE ENJOINED WITHOUT MAKING THE UNITED STATES A PARTY.    WE
BELIEVE THE THEORY TO BE ERRONEOUS.  IT CONFUSES THE DOCTRINE OF
SOVEREIGN IMMUNITY WITH THE REQUIREMENT THAT A PLAINTIFF STATE A CAUSE
OF ACTION.  IT IS A PREREQUISITE TO THE MAINTENANCE OF ANY ACTION FOR
SPECIFIC RELIEF THAT THE PLAINTIFF CLAIM AN INVASION OF HIS LEGAL
RIGHTS, EITHER PAST OR THREATENED.  HE MUST, THEREFORE, ALLEGE CONDUCT
WHICH IS "ILLEGAL" IN THE SENSE THAT THE RESPONDENT SUGGESTS.  IF HE
DOES NOT, HE HAS NOT STATED A CAUSE OF ACTION.  THIS IS TRUE WHETHER
THE CONDUCT COMPLAINED OF IS SOVEREIGN OR INDIVIDUAL.  IN A SUIT
AGAINST AN AGENCY OF THE SOVEREIGN, AS IN ANY OTHER SUIT, IT IS
THEREFORE NECESSARY THAT THE PLAINTIFF CLAIM AN INVASION OF HIS
RECOGNIZED LEGAL RIGHTS.  IF HE DOES NOT DO SO, THE SUIT MUST FAIL EVEN
IF HE ALLEGES THAT THE AGENT ACTED BEYOND STATUTORY AUTHORITY N13 OR
UNCONSTITUTIONALLY.  FN14  BUT, IN A SUIT AGAINST AN AGENCY OF THE
SOVEREIGN, IT IS NOT SUFFICIENT THAT HE MAKE SUCH A CLAIM.  SINCE THE
SOVEREIGN MAY NOT BE SUED, IT MUST ALSO APPEAR THAT THE ACTION TO BE
RESTRAINED OR DIRECTED IS NOT ACTION OF THE SOVEREIGN.  THE MERE
ALLEGATION THAT THE OFFICER, ACTING OFFICIALLY, WRONGFULLY HOLDS
PROPERTY TO WHICH THE PLAINTIFF HAS TITLE DOES NOT MEET THAT
REQUIREMENT.  TRUE, IT ESTABLISHES A WRONG TO THE PLAINTIFF.  BUT IT
DOES NOT ESTABLISH THAT THE OFFICER, IN COMMITTING THAT WRONG, IS NOT
EXERCISING THE POWERS DELEGATED TO HIM BY THE SOVEREIGN.  IF HE IS
EXERCISING SUCH POWERS, THE ACTION IS THE SOVEREIGN'S AND A SUIT TO
ENJOIN IT MAY NOT BE BROUGHT UNLESS THE SOVEREIGN HAS CONSENTED. 

IT IS ARGUED, HOWEVER, THAT THE COMMISSION OF A TORT CANNOT BE
AUTHORIZED BY THE SOVEREIGN.  THEREFORE, THE ARGUMENT GOES, THE
ALLEGATION THAT A GOVERNMENT OFFICER HAS ACTED OR IS THREATENING TO ACT
TORTIOUSLY TOWARD THE PLAINTIFF IS SUFFICIENT TO SUPPORT THE CLAIM THAT
HE HAS ACTED BEYOND HIS DELEGATED POWERS.  IT IS ON THIS CONTENTION
THAT THE RESPONDENT'S POSITION FUNDAMENTALLY RESTS, SINCE IT IS
ADMITTED THAT, IF THE ACTION TO BE PREVENTED OR COMPELLED IS AUTHORIZED
BY THE SOVEREIGN, THE DEMAND FOR IT MUST FAIL AS A DEMAND AGAINST THE
SOVEREIGN.  IT HAS BEEN SAID, IN A VERY SPECIAL SENSE, THAT, AS A
MATTER OF AGENCY LAW, A PRINCIPAL MAY NEVER LAWFULLY AUTHORIZE THE
COMMISSION OF A TORT BY HIS AGENT.  BUT THAT STATEMENT, IN ITS USUAL
CONTEXT, IS ONLY A WAY OF SAYING THAT AN AGENT'S LIABILITY FOR TORTS
COMMITTED BY HIM CANNOT BE AVOIDED BY PLEADING THE DIRECTION OR
AUTHORIZATION OF HIS PRINCIPAL N15.  THE AGENT IS HIMSELF LIABLE
WHETHER OR NOT HE HAS BEEN AUTHORIZED OR EVEN DIRECTED TO COMMIT THE
TORT.  THIS, OF COURSE, DOES NOT MEAN THAT THE PRINCIPAL IS NOT LIABLE
NOR THAT THE TORTIOUS ACTION MAY NOT BE REGARDED AS THE ACTION OF THE
PRINCIPAL.  IT DOES NOT MEAN, THEREFORE, THAT THE AGENT'S ACTION,
BECAUSE TORTIOUS, IS, FOR THAT REASON ALONE, ULTRA VIRES HIS
AUTHORITY.  AN ARGUMENT TO THAT EFFECT WAS AT ONE TIME ADVANCED IN
CONNECTION WITH CORPORATE AGENTS, IN AN EFFORT TO AVOID CORPORATE
LIABILITY FOR TORTS, BUT WAS DECISIVELY REJECTED.  FN16 

THERE IS, THEREFORE, NOTHING IN THE LAW OF AGENCY WHICH LENDS SUPPORT
TO THE CONTENTION THAT AN OFFICER'S TORTIOUS ACTION IS IPSO FACTO
BEYOND HIS DELEGATED POWERS.  NOR, WE THINK, IS THERE ANYTHING IN THE
DOCTRINE OF SOVEREIGN IMMUNITY WHICH REQUIRES US TO ADOPT SUCH A VIEW
AS REGARDS GOVERNMENT AGENCIES.  IF, OF COURSE, IT IS ASSUMED THAT THE
BASIS OF THE DOCTRINE OF SOVEREIGN IMMUNITY IS THE THESIS THAT THE KING
CAN DO NO WRONG, THEN IT MAY BE ALSO ASSUMED THAT IF THE KING'S AGENT
DOES WRONG THAT ACTION CANNOT BE THE ACTION OF THE KING.  IT IS ON SOME
SUCH ARGUMENT THAT THE POSITION OF THE RESPONDENT RESTS.  IT IS ARGUED
THAT AN OFFICER GIVEN THE POWER TO MAKE DECISIONS IS ONLY GIVEN THE
POWER TO MAKE CORRECT DECISIONS.  IF HIS DECISIONS ARE NOT CORRECT,
THEN HIS ACTION BASED ON THOSE DECISIONS IS BEYOND HIS AUTHORITY AND
NOT THE ACTION OF THE SOVEREIGN.  THERE IS NO WARRANT FOR SUCH A
CONTENTION IN CASES IN WHICH THE DECISION MADE BY THE OFFICER DOES NOT
RELATE TO THE TERMS OF HIS STATUTORY AUTHORITY.  CERTAINLY THE
JURISDICTION OF A COURT TO DECIDE A CASE DOES NOT DISAPPEAR IF ITS
DECISION ON THE MERITS IS WRONG.  AND WE HAVE HERETOFORE REJECTED THE
ARGUMENT THAT OFFICIAL ACTION IS INVALID IF BASED ON AN INCORRECT
DECISION AS TO LAW OR FACT, IF THE OFFICER MAKING THE DECISION WAS
EMPOWERED TO DO SO.  ADAMS V. NAGLE, 303 U.S. 532, 542(1938).  WE
THEREFORE REJECT THE CONTENTION HERE.  WE HOLD THAT IF THE ACTIONS OF
AN OFFICER DO NOT CONFLICT WITH THE TERMS OF HIS VALID STATUTORY
AUTHORITY, THEN THEY ARE THE ACTIONS OF THE SOVEREIGN, WHETHER OR NOT
THEY ARE TORTIOUS UNDER GENERAL LAW, IF THEY WOULD BE REGARDED AS THE
ACTIONS OF A PRIVATE PRINCIPAL UNDER THE NORMAL RULES OF AGENCY.  A
GOVERNMENT OFFICER IS NOT THEREBY NECESSARILY IMMUNIZED FROM LIABILITY,
IF HIS ACTION IS SUCH THAT A LIABILITY WOULD BE IMPOSED BY THE GENERAL
LAW OF TORTS.  BUT THE ACTION ITSELF CANNOT BE ENJOINED OR DIRECTED,
SINCE IT IS ALSO THE ACTION OF THE SOVEREIGN. 

UNITED STATES V. LEE, 106 U.S. 196(1882), IS SAID TO HAVE ESTABLISHED
THE RULE FOR WHICH THE RESPONDENT CONTENDS.  IT DID NOT.  IT
REPRESENTS, RATHER, A SPECIFIC APPLICATION OF THE CONSTITUTIONAL
EXCEPTION TO THE DOCTRINE OF SOVEREIGN IMMUNITY.  THE SUIT THERE WAS
AGAINST FEDERAL OFFICERS TO RECOVER LAND HELD BY THEM, WITHIN THE SCOPE
OF THEIR AUTHORITY, AS A UNITED STATES MILITARY STATION AND CEMETERY. 
THE QUESTION AT ISSUE WAS THE VALIDITY OF A TAX SALE UNDER WHICH THE
UNITED STATES, AT LEAST IN THE VIEW OF THE OFFICERS, HAD OBTAINED TITLE
TO THE PROPERTY.  THE PLAINTIFF ALLEGED THAT THE SALE WAS INVALID AND
THAT TITLE TO THE LAND WAS IN HIM.  THE COURT HELD THAT IF HE WAS RIGHT
THE DEFENDANTS' POSSESSION OF THE LAND WAS ILLEGAL AND A SUIT AGAINST
THEM WAS NOT A SUIT AGAINST THE SOVEREIGN.  PRIMA FACIE, THIS HOLDING
WOULD APPEAR TO SUPPORT THE CONTENTION OF THE PLAINTIFF.  EXAMINATION
OF THE LEE CASE, HOWEVER, INDICATES THAT THE BASIS OF THE DECISION WAS
THE ASSUMED LACK OF THE DEFENDANTS' CONSTITUTIONAL AUTHORITY TO HOLD
THE LAND AGAINST THE PLAINTIFF.  THE COURT SAID (106 U.S. AT 219): 

"IT IS NOT PRETENDED, AS THE CASE NOW STANDS, THAT THE PRESIDENT HAD
ANY LAWFUL AUTHORITY TO (TAKE THE LAND), OR THAT THE LEGISLATIVE BODY
COULD GIVE HIM ANY SUCH AUTHORITY EXCEPT UPON PAYMENT OF JUST
COMPENSATION.  THE DEFENCE STANDS HERE SOLELY UPON THE ABSOLUTE
IMMUNITY FROM JUDICIAL INQUIRY OF EVERY ONE WHO ASSERTS AUTHORITY FROM
THE EXECUTIVE BRANCH OF THE GOVERNMENT, HOWEVER CLEAR IT MAY BE MADE
THAT THE EXECUTIVE POSSESSED NO SUCH POWER.  NOT ONLY NO SUCH POWER IS
GIVEN, BUT IT IS ABSOLUTELY PROHIBITED, BOTH TO THE EXECUTIVE AND THE
LEGISLATIVE, TO DEPRIVE ANY ONE OF LIFE, LIBERTY, OR PROPERTY WITHOUT
DUE PROCESS OF LAW, OR TO TAKE PRIVATE PROPERTY WITHOUT JUST
COMPENSATION. 

     .         .         .         .         . 

"SHALL IT BE SAID  ...  THAT THE COURTS CANNOT GIVE A REMEDY WHEN THE
CITIZEN HAS BEEN DEPRIVED OF HIS PROPERTY BY FORCE, HIS ESTATE SEIZED
AND CONVERTED TO THE USE OF THE GOVERNMENT WITHOUT LAWFUL AUTHORITY,
WITHOUT PROCESS OF LAW, AND WITHOUT COMPENSATION, BECAUSE THE PRESIDENT
HAS ORDERED IT AND HIS OFFICERS ARE IN POSSESSION?" 

THE COURT THUS ASSUMED THAT IF TITLE HAD BEEN IN THE PLAINTIFF THE
TAKING OF THE PROPERTY BY THE DEFENDANTS WOULD BE A TAKING WITHOUT JUST
COMPENSATION AND, THEREFORE, AN UNCONSTITUTIONAL ACTION.  FN17  ON THAT
ASSUMPTION, AND ONLY ON THAT ASSUMPTION, THE DEFENDANTS' POSSESSION OF
THE PROPERTY WAS AN UNCONSTITUTIONAL USE OF THEIR POWER AND WAS,
THEREFORE, NOT VALIDLY AUTHORIZED BY THE SOVEREIGN.  FOR THAT REASON, A
SUIT FOR SPECIFIC RELIEF, TO OBTAIN THE PROPERTY, WAS NOT A SUIT
AGAINST THE SOVEREIGN AND COULD BE MAINTAINED AGAINST THE DEFENDANTS AS
INDIVIDUALS. 

THE LEE CASE, THEREFORE, OFFERS NO SUPPORT TO THE CONTENTION THAT A
CLAIM OF TITLE TO PROPERTY HELD BY AN OFFICER OF THE SOVEREIGN IS, OF
ITSELF, SUFFICIENT TO DEMONSTRATE THAT THE OFFICER HOLDING THE PROPERTY
IS NOT VALIDLY EMPOWERED BY THE SOVEREIGN TO DO SO.  ONLY WHERE THERE
IS A CLAIM THAT THE HOLDING CONSTITUTES AN UNCONSTITUTIONAL TAKING OF
PROPERTY WITHOUT JUST COMPENSATION DOES THE LEE CASE REQUIRE THAT
CONCLUSION.  FN18  THE CASES WHICH FOLLOWED LEE'S DO NOT REQUIRE A
DIFFERENT RESULT.  THERE ARE A GREAT NUMBER OF SUCH CASES AND, AS THIS
COURT HAS ITSELF REMARKED, IT IS NOT "AN EASY MATTER TO RECONCILE ALL
THE DECISIONS OF THE COURT IN THIS CLASS OF CASES."  FN19  WITH ONLY
ONE POSSIBLE EXCEPTION, HOWEVER, SPECIFIC RELIEF IN CONNECTION WITH
PROPERTY HELD OR INJURED BY OFFICERS OF THE SOVEREIGN ACTING IN THE
NAME OF THE SOVEREIGN HAS BEEN GRANTED ONLY WHERE THERE WAS A CLAIM
THAT THE TAKING OF THE PROPERTY OR THE INJURY TO IT WAS NOT THE ACTION
OF THE SOVEREIGN BECAUSE UNCONSTITUTIONAL  FN20  OR BEYOND THE
OFFICER'S STATUTORY POWERS N21.  CERTAINLY, THE COURT HAS REPEATEDLY
STATED THESE TO BE THE CASES IN WHICH SUCH RELIEF COULD BE GRANTED. 
FN22  A CONTRARY DOCTRINE WAS STATED IN GOLTRA V. WEEKS, 271 U.S.
536(1926).  IN THAT CASE THE UNITED STATES HAD LEASED BARGES TO THE
PLAINTIFF UNDER A CONTRACT WHICH GAVE IT A RIGHT TO REPOSSESS UNDER
CERTAIN CONDITIONS.  BELIEVING THAT THOSE CONDITIONS EXISTED, OFFICERS
OF THE GOVERNMENT ATTEMPTED TO REPOSSESS THE BARGES.  THE COURT HELD
THAT A SUIT TO ENJOIN THEM FROM DOING SO WAS NOT A SUIT AGAINST THE
UNITED STATES.  THE COURT SAID THAT THE TAKING OF THE BARGES WAS
ALLEGED TO BE A TRESPASS AND HENCE "ILLEGAL."  THEREFORE, THE ACTIONS
OF THE OFFICERS WERE PERSONAL ACTIONS, NOT THE ACTIONS OF THE UNITED
STATES, AND INJUNCTION AGAINST THEM WOULD NOT BE INJUNCTION AGAINST THE
UNITED STATES.  271 U.S. AT 544.  FOR THIS CONCLUSION THE COURT RELIED
ENTIRELY UPON THE OPINION OF MR. JUSTICE HUGHES IN PHILADELPHIA CO. V.
STIMSON, 223 U.S. 605(1912).  THE RELIANCE WAS MISPLACED, SINCE THE
OPINION IN THAT CASE CLEARLY AND SPECIFICALLY RESTED ON THE CLAIM THAT
THERE WAS A LACK OF STATUTORY POWER TO ACT, NOT SIMPLY ON A CLAIM OF
TORTIOUS INJURY TO THE PLAINTIFF.  FN23 

OPPOSED TO THE RATIONALE OF THE GOLTRA OPINION IS THE DECISION, BY
MR. JUSTICE HOLMES, IN GOLDBERG V. DANIELS, 231 U.S. 218(1913).  THERE,
AS HERE, THE QUESTION CONCERNED THE EFFECT OF A CLAIMED SALE OF
GOVERNMENT SURPLUS PROPERTY.  THE PLAINTIFF SUBMITTED A SEALED BID FOR
A SURPLUS WAR VESSEL, ACCOMPANIED IN THAT CASE BY A CERTIFIED CHECK AS
PAYMENT IN ADVANCE.  WHEN THE BIDS WERE OPENED HIS WAS THE HIGHEST. 
THE SECRETARY OF THE NAVY, HOWEVER, DETERMINED NOT TO ACCEPT THE BID
AND REFUSED TO DELIVER THE VESSEL.  THE PLAINTIFF BROUGHT MANDAMUS.  HE
ALLEGED THAT THE SALE WAS COMPLETE WHEN THE BIDS WERE OPENED AND THAT
THE OWNERSHIP OF THE VESSEL WAS THEREFORE IN HIM, AND HE ASKED THAT THE
SECRETARY BE COMPELLED TO DELIVER IT.  THE LOWER COURTS EXAMINED THE
DETAILS OF THE TRANSACTION AND CONCLUDED THAT THE SALE WAS NOT COMPLETE
UNTIL THE SECRETARY ANNOUNCED HIS ACCEPTANCE OF THE BID.  ON APPEAL
HERE, IT WAS EXPRESSLY HELD THAT IT WAS NOT NECESSARY TO DECIDE WHETHER
THE LOWER COURTS WERE CORRECT.  THE SUIT MUST FAIL AS ONE AGAINST THE
UNITED STATES, THE COURT SAID, WHETHER OR NOT THE SALE WAS COMPLETE. 
IN SO HOLDING THE COURT SAID, IN EFFECT, THAT THE QUESTION OF TITLE WAS
IMMATERIAL TO THE COURT'S JURISDICTION.  WRONGFUL THE SECRETARY'S
CONDUCT MIGHT BE, BUT A SUIT TO RELIEVE THE WRONG BY OBTAINING THE
VESSEL WOULD INTERFERE WITH THE SOVEREIGN BEHIND ITS BACK AND HENCE
MUST FAIL.  FN24 

BOTH CASES ARE PRESSED UPON US.  THE PETITIONER ARGUES, AND
CORRECTLY, THAT THE RESULT IN THE GOLDBERG CASE CALLS FOR A SIMILAR
RESULT IN THIS CASE - A DISMISSAL OF THE SUIT FOR WANT OF
JURISDICTION.  THE RESPONDENT ARGUES, WITH EQUAL CORRECTNESS, THAT THE
THEORY OF THE GOLTRA OPINION - THAT AN ALLEGATION THAT THE ACTIONS OF
GOVERNMENT OFFICERS ARE WRONGFUL UNDER GENERAL LAW IS SUFFICIENT TO
SHOW THAT THEY ARE "UNAUTHORIZED" - CALLS FOR AN AFFIRMANCE OF THE
DECISION BELOW.  SINCE WE MUST THEREFORE RESOLVE THE CONFLICT IN
DOCTRINE  FN25  WE ADHERE TO THE RULE APPLIED IN THE GOLDBERG CASE AND
TO THE PRINCIPLE WHICH HAS BEEN FREQUENTLY REPEATED BY THIS COURT, BOTH
BEFORE AND AFTER THE GOLTRA CASE:  THE ACTION OF AN OFFICER OF THE
SOVEREIGN (BE IT HOLDING, TAKING OR OTHERWISE LEGALLY AFFECTING THE
PLAINTIFF'S PROPERTY) CAN BE REGARDED AS SO "ILLEGAL" AS TO PERMIT A
SUIT FOR SPECIFIC RELIEF AGAINST THE OFFICER AS AN INDIVIDUAL ONLY IF
IT IS NOT WITHIN THE OFFICER'S STATUTORY POWERS OR, IF WITHIN THOSE
POWERS, ONLY IF THE POWERS, OR THEIR EXERCISE IN THE PARTICULAR CASE,
ARE CONSTITUTIONALLY VOID.  FN26 

THE APPLICATION OF THIS PRINCIPLE TO THE PRESENT CASE IS CLEAR.  THE
VERY BASIS OF THE RESPONDENT'S ACTION IS THAT THE ADMINISTRATOR WAS AN
OFFICER OF THE GOVERNMENT, VALIDLY APPOINTED TO ADMINISTER ITS SALES
PROGRAM AND THEREFORE AUTHORIZED TO ENTER, THROUGH HIS SUBORDINATES,
INTO A BINDING CONTRACT CONCERNING THE SALE OF THE GOVERNMENT'S COAL. 
THERE IS NO ALLEGATION OF ANY STATUTORY LIMITATION ON HIS POWERS AS A
SALES AGENT.  IN THE ABSENCE OF SUCH A LIMITATION HE, LIKE ANY OTHER
SALES AGENT, HAD THE POWER AND THE DUTY TO CONSTRUE SUCH CONTRACTS AND
TO REFUSE DELIVERY IN CASES IN WHICH HE BELIEVED THAT THE CONTRACT
TERMS HAD NOT BEEN COMPLIED WITH.  HIS ACTION IN SO DOING IN THIS CASE
WAS, THEREFORE, WITHIN HIS AUTHORITY EVEN IF, FOR PURPOSES OF DECISION
HERE, WE ASSUME THAT HIS CONSTRUCTION WAS WRONG AND THAT TITLE TO THE
COAL HAD, IN FACT, PASSED TO THE RESPONDENT UNDER THE CONTRACT.  THERE
IS NO CLAIM THAT HIS ACTION CONSTITUTED AN UNCONSTITUTIONAL TAKING. 
FN27  IT WAS, THEREFORE, INESCAPABLY THE ACTION OF THE UNITED STATES
AND THE EFFORT TO ENJOIN IT MUST FAIL AS AN EFFORT TO ENJOIN THE UNITED
STATES. 

IT IS ARGUED THAT THE PRINCIPLE OF SOVEREIGN IMMUNITY IS AN ARCHAIC
HANGOVER NOT CONSONANT WITH MODERN MORALITY AND THAT IT SHOULD
THEREFORE BE LIMITED WHEREVER POSSIBLE.  THERE MAY BE SUBSTANCE IN SUCH
A VIEWPOINT AS APPLIED TO SUITS FOR DAMAGES.  THE CONGRESS HAS
INCREASINGLY PERMITTED SUCH SUITS TO BE MAINTAINED AGAINST THE
SOVEREIGN AND WE SHOULD GIVE HOSPITABLE SCOPE TO THAT TREND.  FN28  BUT
THE REASONING IS NOT APPLICABLE TO SUITS FOR SPECIFIC RELIEF.  FOR, IT
IS ONE THING TO PROVIDE A METHOD BY WHICH A CITIZEN MAY BE COMPENSATED
FOR A WRONG DONE TO HIM BY THE GOVERNMENT.  IT IS A FAR DIFFERENT
MATTER TO PERMIT A COURT TO EXERCISE ITS COMPULSIVE POWERS TO RESTRAIN
THE GOVERNMENT FROM ACTING, OR TO COMPEL IT TO ACT.  THERE ARE THE
STRONGEST REASONS OF PUBLIC POLICY FOR THE RULE THAT SUCH RELIEF CANNOT
BE HAD AGAINST THE SOVEREIGN.  THE GOVERNMENT, AS REPRESENTATIVE OF THE
COMMUNITY AS A WHOLE, CANNOT BE STOPPED IN ITS TRACKS BY ANY PLAINTIFF
WHO PRESENTS A DISPUTED QUESTION OF PROPERTY OR CONTRACT RIGHT.  AS WAS
EARLY RECOGNIZED, "THE INTERFERENCE OF THE COURTS WITH THE PERFORMANCE
OF THE ORDINARY DUTIES OF THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT,
WOULD BE PRODUCTIVE OF NOTHING BUT MISCHIEF  ...  "  FN29 

THERE ARE LIMITS, OF COURSE.  UNDER OUR CONSTITUTIONAL SYSTEM,
CERTAIN RIGHTS ARE PROTECTED AGAINST GOVERNMENTAL ACTION AND, IF SUCH
RIGHTS ARE INFRINGED BY THE ACTIONS OF OFFICERS OF THE GOVERNMENT, IT
IS PROPER THAT THE COURTS HAVE THE POWER TO GRANT RELIEF AGAINST THOSE
ACTIONS.  BUT IN THE ABSENCE OF A CLAIM OF CONSTITUTIONAL LIMITATION,
THE NECESSITY OF PERMITTING THE GOVERNMENT TO CARRY OUT ITS FUNCTIONS
UNHAMPERED BY DIRECT JUDICIAL INTERVENTION OUTWEIGHS THE POSSIBLE
DISADVANTAGE TO THE CITIZEN IN BEING RELEGATED TO THE RECOVERY OF MONEY
DAMAGES AFTER THE EVENT. 

IT IS ARGUED THAT A SALES AGENCY, SUCH AS THE WAR ASSETS
ADMINISTRATION, IS NOT THE TYPE OF AGENCY WHICH REQUIRES THE PROTECTION
FROM DIRECT JUDICIAL INTERFERENCE WHICH THE DOCTRINE OF SOVEREIGN
IMMUNITY CONFERS.  WE DO NOT DOUBT THAT THERE MAY BE SOME ACTIVITIES OF
THE GOVERNMENT WHICH DO NOT REQUIRE SUCH PROTECTION.  THERE ARE OTHERS
IN WHICH THE NECESSITY OF IMMUNITY IS APPARENT.  BUT IT IS NOT FOR THIS
COURT TO EXAMINE THE NECESSITY IN EACH CASE.  THAT IS A FUNCTION OF THE
CONGRESS.  THE CONGRESS HAS, IN MANY CASES, ENTRUSTED THE BUSINESS OF
THE GOVERNMENT TO AGENCIES WHICH MAY CONTRACT IN THEIR OWN NAMES AND
WHICH ARE SUBJECT TO SUIT IN THEIR OWN NAMES.  IN OTHER CASES IT HAS
PERMITTED SUITS FOR DAMAGES, BUT, SIGNIFICANTLY, NOT FOR SPECIFIC
RELIEF, IN THE COURT OF CLAIMS.  THE DIFFERENTIATIONS AS TO REMEDY
WHICH THE CONGRESS HAS ERECTED WOULD BE RENDERED NUGATORY IF THE BASIS
ON WHICH THEY REST - THE ASSUMED IMMUNITY OF THE SOVEREIGN FROM SUIT IN
THE ABSENCE OF CONSENT - WERE UNDERMINED BY AN UNWARRANTED EXTENSION OF
THE LEE DOCTRINE. 

THE CAUSE IS REVERSED WITH DIRECTIONS THAT THE COMPLAINT BE
DISMISSED.  IT IS SO ORDERED. 

FN1  LITTLEJOHN RESIGNED ON NOVEMBER 28, 1947.  ON APRIL 19, 1948, WE
GRANTED THE GOVERNMENT'S MOTION TO SUBSTITUTE HIS SUCCESSOR, JESS
LARSON, AS PETITIONER HERE. 

FN2  165 F.2D 235(1947). 

FN3  THE JUDGMENT OF THE COURT OF APPEALS WAS NOT A FINAL ONE, BUT WE
CONSIDERED IT APPROPRIATE FOR REVIEW HERE SINCE, IN OUR VIEW, THE
JURISDICTIONAL ISSUE WAS "FUNDAMENTAL TO THE FURTHER CONDUCT OF THE
CASE."  SEE LAND V. DOLLAR, 330 U.S. 731, 734(1947). 

FN4  CF. SLOAN SHIPYARDS V. U.S. FLEET CORP., 258 U.S. 549(1922),
WHERE THE QUESTION WAS WHETHER A CORPORATE AGENCY OF THE UNITED STATES
COULD BE SUED WHERE IT, NOT THE UNITED STATES, WAS THE CONTRACTOR. 

FN5  FOR THIS REASON, THERE OBVIOUSLY WAS NO OBJECTION TO THE
SUBSTITUTION IN THIS COURT OF THE PRESENT ADMINISTRATOR FOR HIS
PREDECESSOR, ALTHOUGH ALL THE ACTIONS COMPLAINED OF IN THE COMPLAINT
WERE TAKEN DURING THE PREDECESSOR'S ADMINISTRATION. 

FN6  IN RE AYERS, 123 U.S. 443(1887).  AS WAS SAID IN MINNESOTA V.
HITCHCOCK, 185 U.S. 373, 387(1902):  "  ...  WHETHER A SUIT IS ONE
AGAINST A STATE IS TO BE DETERMINED, NOT BY THE FACT OF THE PARTY NAMED
AS DEFENDANT ON THE RECORD, BUT BY THE RESULT OF THE JUDGMENT OR DECREE
WHICH MAY BE ENTERED  ...  " 

FN7  THERE ARE, OF COURSE, LIMITATIONS ON THE RIGHT TO RECOVER
DAMAGES FROM PUBLIC OFFICERS.  SEE GIBSON V. REYNOLDS, 172 F.2D
95(1949); GLASS V. ICKES, 117 F.2D 273(1940); HARPER, LAW OF TORTS
(1933) SEC. 298.  THESE LIMITATIONS ARE MATTERS OF SUBSTANTIVE LAW,
APPLICABLE IN SUITS INDUBITABLY ADDRESSED TO THE OFFICER, NOT THE
SOVEREIGN.  THEY ARE NOT NECESSARILY COINCIDENTAL WITH THE LIMITATIONS
ON THE COURT'S JURISDICTION TO HEAR A SUIT DIRECTED AGAINST THE
SOVEREIGN.  SEE JENNINGS, TORT LIABILITY OF ADMINISTRATIVE OFFICERS, 21
MINN. L. REV. 263(1937), AND NOTE THE DIFFERING TREATMENT ACCORDED THE
CLAIM FOR COMPENSATION AND THE CLAIM FOR SPECIFIC RELIEF IN BELKNAP V.
SCHILD, 161 U.S. 10, 27(1896). 

FN8  WHETHER SUCH RELIEF IS OBTAINABLE FROM ANY GOVERNMENT OFFICER ON
THE BASIS OF THE FACTS SET OUT IN THE COMPLAINT IS, AS STATED, NOT THE
QUESTION HERE.  BUT IT MAY SERIOUSLY BE DOUBTED WHETHER DAMAGES COULD,
IN ANY EVENT, BE RECOVERED FROM JESS LARSON, THE PRESENT WAR ASSETS
ADMINISTRATOR, OR FROM HIS PREDECESSOR, ROBERT M. LITTLEJOHN.  THE
COMPLAINT DID NOT CHARGE THEM WITH ANY PERSONAL WRONGDOING NOR EVEN
WITH KNOWLEDGE OF THE ALLEGED WRONGDOING OF THEIR SUBORDINATES.  CF.
ROBERTSON V. SICHEL, 127 U.S. 507, 515-516(1888).  SINCE THE COMPLAINT
DID NOT ASK FOR DAMAGES BUT FOR SPECIFIC RELIEF, THE ADMINISTRATOR, IN
HIS OFFICIAL CAPACITY, WAS, OF COURSE, A PROPER PARTY.  CF. WILLIAMS V.
FANNING, 332 U.S. 490(1947). 

FN9  THE COMPLAINT ALSO ASKED FOR DECLARATORY RELIEF EVEN MORE
CLEARLY DIRECTED AT THE SOVEREIGN.  IT WAS ASKED THAT THE COURT DECLARE
THAT "THE SALE OF THIS COAL  ...  IS STILL VALID AND IN EFFECT."  THE
ADMINISTRATOR, AN AGENT FOR A DISCLOSED PRINCIPAL, WAS NOT A PARTY TO
THE CONTRACT OF SALE.  SEE 2 RESTATEMENT, AGENCY (1933) SEC. 320.  THE
REQUEST FOR AN ADJUDICATION OF THE VALIDITY OF THE SALE WAS THUS, EVEN
IN FORM, A REQUEST FOR AN ADJUDICATION AGAINST THE SOVEREIGN.  SUCH A
DECLARATION OF THE RIGHTS OF THE RESPONDENT VIS-A-VIS THE UNITED STATES
WOULD CLEARLY HAVE BEEN BEYOND THE COURT'S JURISDICTION.  SEE STANLEY
V. SCHWALBY, 162 U.S. 255(1896).  WE DO NOT REST OUR CONCLUSION HERE ON
THE REQUEST FOR SUCH A DECLARATION, SINCE THE DISTRICT COURT COULD HAVE
GRANTED ONLY THE INJUNCTIVE RELIEF REQUESTED. 

FN10  LAND V. DOLLAR, 330 U.S. 731, 739(1947).  SINCE JURISDICTION IN
THIS TYPE OF CASE DOES REST ON THE DECISION ON THE MERITS THERE CAN BE
NO QUESTION THAT DISMISSAL OF A SUIT IN WHICH "THE ALLEGED CLAIM UNDER
THE CONSTITUTION OR FEDERAL STATUTES CLEARLY APPEARS TO BE  ...  MADE
SOLELY FOR THE PURPOSE OF OBTAINING JURISDICTION OR  ...  IS WHOLLY
INSUBSTANTIAL AND FRIVOLOUS" WOULD BE DISMISSAL FOR LACK OF
JURISDICTION.  SEE BELL V. HOOD, 327 U.S. 678, 682-683(1946). 

FN11  OF COURSE, A SUIT MAY FAIL, AS ONE AGAINST THE SOVEREIGN, EVEN
IF IT IS CLAIMED THAT THE OFFICER BEING SUED HAS ACTED
UNCONSTITUTIONALLY OR BEYOND HIS STATUTORY POWERS, IF THE RELIEF
REQUESTED CAN NOT BE GRANTED BY MERELY ORDERING THE CESSATION OF THE
CONDUCT COMPLAINED OF BUT WILL REQUIRE AFFIRMATIVE ACTION BY THE
SOVEREIGN OR THE DISPOSITION OF UNQUESTIONABLY SOVEREIGN PROPERTY. 
NORTH CAROLINA V. TEMPLE, 134 U.S. 22(1890). 

FN12  THIS CASE MUST, THEREFORE, BE CLEARLY DISTINGUISHED FROM CASES
LIKE NOBLE V. UNION RIVER LOGGING R. CO., 147 U.S. 165(1893).  IN THAT
CASE, IT WAS HELD THAT THE OFFICER BEING SUED LACKED POWER TO REFUSE
DELIVERY BECAUSE, UNDER THE STATUTORY SCHEME, HIS PREDECESSOR'S
DETERMINATION THAT THE PLAINTIFF WAS ENTITLED TO DELIVERY WAS BINDING. 
A SIMILAR CASE WOULD BE PRESENTED HERE IF THE STATUTE EXPRESSLY
PROVIDED THAT THE ADMINISTRATOR'S INTERPRETATIONS OF CONTRACTS SHOULD
BE BINDING AND IRREVOCABLE AND IF A LATER, OR SUBORDINATE, OFFICIAL
REFUSED TO FOLLOW A PRIOR BINDING INTERPRETATION.  IN SUCH A CASE THE
ISSUE WOULD NOT BE THE CORRECTNESS OR INCORRECTNESS OF THE LATER
DECISION UNDER GENERAL LAW BUT SIMPLY THE POWER OF THE OFFICIAL, UNDER
THE STATUTE, TO MAKE A DECISION AT ALL.  CF. ICKES V. FOX, 300 U.S.
82(1937). 

FN13  PERKINS V. LUKENS STEEL CO., 310 U.S. 113, 125(1940). 

FN14  TENNESSEE POWER CO. V. T.V.A., 306 U.S. 118, 137-139(1939);
MINE SAFETY CO. V. FORRESTAL, 326 U.S. 371(1945). 

FN15  THUS THE COURT SAID IN HOPKINS V. CLEMSON COLLEGE, 221 U.S.
636, 643(1911) "  ...  NEITHER A STATE NOR AN INDIVIDUAL CAN CONFER
UPON AN AGENT AUTHORITY TO COMMIT A TORT SO AS TO EXCUSE THE
PERPETRATOR."  SEE ALSO 1 MECHEM, AGENCY (2D ED., 1914) 1077. 

FN16  SEE PHILADELPHIA, WILMINGTON & BALTIMORE R. CO. V. QUIGLEY, 21
HOW.  202, 209-210(1859); 10 FLETCHER, CYCLOPEDIA CORPORATIONS (1931)
SEC. 4877.  THE CONTENTION OF THE RESPONDENT IN THE PRESENT CASE IS
REMARKABLY SIMILAR TO THAT MADE, AS REGARDS CORPORATE AGENTS, IN
CHESTNUT HILL TURNPIKE CO. V. RUTTER, 4 SERG.  & R. 6(PA. 1818).  THE
ARGUMENT IS REPORTED AS FOLLOWS, ID. AT P. 9: 

"NOW, A CORPORATION NEVER WAS AND NEVER CAN BE AUTHORISED BY LAW TO
COMMIT A TORT; THEY CAN INVEST NO ONE WITH POWER FOR THAT PURPOSE.  IF,
THEREFORE, AN AGENT CONSTITUTED FOR A LEGAL PURPOSE, INFLICT AN INJURY,
THE CORPORATION IS NO MORE ANSWERABLE, THAN IT WOULD BE FOR AN ACT OF
THAT AGENT, DONE WITHOUT ANY AUTHORITY WHATEVER DERIVED FROM IT,
BECAUSE BEING UNAUTHORISED TO COMMIT A WRONG, IT IS OUT OF THE SCOPE OF
ITS CORPORATE POWERS." 

THE ARGUMENT WAS REJECTED BY THE COURT.  SEE ALSO THAYER V. BOSTON,
19 PICK.  511, 515(MASS.  1837). 

FN17  THE LEE CASE WAS DECIDED IN 1882.  AT THAT TIME THERE CLEARLY
WAS NO REMEDY AVAILABLE BY WHICH HE COULD HAVE OBTAINED COMPENSATION
FOR THE TAKING OF HIS LAND.  WHETHER COMPENSATION COULD BE OBTAINED
TODAY IN SUCH A CASE IS, OF COURSE, NOT THE ISSUE HERE. 

FN18  FOR THIS REASON THE AVAILABILITY OF A REMEDY IN THE COURT OF
CLAIMS MAY, IN SOME CASES, BE RELEVANT TO THE QUESTION OF SOVEREIGN
IMMUNITY.  WHERE THE ACTION AGAINST WHICH SPECIFIC RELIEF IS SOUGHT IS
A TAKING OR HOLDING OF THE PLAINTIFFS' PROPERTY, THE AVAILABILITY OF A
SUIT FOR COMPENSATION AGAINST THE SOVEREIGN WILL DEFEAT A CONTENTION
THAT THE ACTION IS UNCONSTITUTIONAL AS A VIOLATION OF THE FIFTH
AMENDMENT.  COMPARE HURLEY V. KINCAID, 285 U.S. 95(1932). 

FN19  CUNNINGHAM V. MACON & BRUNSWICK R. CO., 109 U.S. 446,
451(1883).  THE ENSUING YEARS HAVE NOT MADE THE TASK LESS DIFFICULT. 
SEE BROOKS V. DEWAR, 313 U.S. 354, 359(1941); LAND V. DOLLAR, 330 U.S.
731, 738(1947). 

FN20  THUS, IN TINDAL V. WESLEY, 167 U.S. 204, 222(1897), THE COURT
STATED THAT A SUIT TO RECOVER POSSESSION OF PROPERTY OWNED BY THE
PLAINTIFF AND WITHHELD BY OFFICERS OF A STATE WAS ANALOGOUS TO A SUIT
TO ENJOIN THE OFFICERS FROM ENFORCING AN UNCONSTITUTIONAL STATUTE.  ANY
OTHER VIEW, THE COURT SAID, WOULD LEAD TO THE RESULT "THAT IF A STATE,
BY ITS OFFICERS  ...  SHOULD SEIZE FOR PUBLIC USE THE PROPERTY OF A
CITIZEN, WITHOUT MAKING OR SECURING JUST COMPENSATION FOR HIM, AND THUS
VIOLATE THE CONSTITUTIONAL PROVISION DECLARING THAT NO STATE SHALL
DEPRIVE ANY PERSON OF PROPERTY WITHOUT DUE PROCESS OF LAW  ...  THE
CITIZEN IS REMEDILESS SO LONG AS THE STATE, BY ITS AGENTS, CHOOSES TO
HOLD HIS PROPERTY  ...  " 

AND IN SCRANTON V. WHEELER, 179 U.S. 141, 152-153(1900), THE COURT
SAID THAT THE STATE COURT 

"WAS UNDER A DUTY TO INQUIRE WHETHER THE DEFENDANT HAD OR COULD HAVE
ANY AUTHORITY IN LAW TO DO WHAT HE HAD DONE; AND THE SUIT WAS NOT TO BE
DEEMED ONE AGAINST THE UNITED STATES BECAUSE IN THE CONSIDERATION OF
THAT QUESTION IT WOULD BECOME NECESSARY TO ASCERTAIN WHETHER THE
DEFENDANT COULD CONSTITUTIONALLY ACQUIRE FROM THE UNITED STATES
AUTHORITY TO OBSTRUCT THE PLAINTIFF'S ACCESS  ... WITHOUT MAKING OR
SECURING COMPENSATION TO HIM.  ... 

"THE VITAL QUESTION THEREFORE IS  ...  WHETHER THE PROHIBITION IN THE
CONSTITUTION OF THE UNITED STATES OF THE TAKING OF PRIVATE PROPERTY FOR
PUBLIC USE WITHOUT JUST COMPENSATION HAS ANY APPLICATION TO THE CASE
...  " 

FN21  SEE, E.G., PAYNE V. CENTRAL PACIFIC R. CO., 255 U.S. 228,
238(1921), WHERE THE COURT SAID THAT SPECIFIC RELIEF COULD BE HAD
BECAUSE THE GOVERNMENT OFFICERS HAD "DEPARTED FROM A PLAIN OFFICIAL
DUTY" "THROUGH A MISTAKEN CONCEPTION OF THEIR AUTHORITY," AND SANTA FE
PAC. R. CO. V. FALL, 259 U.S. 197, 199(1922), WHERE THE CONTENTION WAS
"THAT THE SECRETARY WENT BEYOND THE POWERS CONFERRED UPON HIM BY THE
STATUTE."  THE CASES ARE MYRIAD AND IT IS UNNECESSARY TO REVIEW THEM
HERE. 

FN22  POINDEXTER V. GREENHOW, 114 U.S. 270, 288(1884); PHILADELPHIA
CO. V. STIMSON, SUPRA, P. 7.  ALTHOUGH STATED IN REFERENCE TO A SUIT
FOR DAMAGES, THE RULE OF THE LEE LINE OF CASES WAS THUS SUMMED UP BY
MR. CHIEF JUSTICE HUGHES, IN YEARSLEY V. ROSS CONSTR.  CO., 309 U.S.
18, 21(1940): 

"WHERE AN AGENT OR OFFICER OF THE GOVERNMENT PURPORTING TO ACT ON ITS
BEHALF HAS BEEN HELD TO BE LIABLE FOR HIS CONDUCT CAUSING INJURY TO
ANOTHER, THE GROUND OF LIABILITY HAS BEEN FOUND TO BE EITHER THAT HE
EXCEEDED HIS AUTHORITY OR THAT IT WAS NOT VALIDLY CONFERRED." 

FN23  THE COURT IN THE STIMSON CASE SAID, 223 U.S. AT P. 622: 

"WHILE THE COMPLAINANT'S TITLE LAY AT THE FOUNDATION OF THE SUIT, AND
IT WOULD BE NECESSARY FOR THE COMPLAINANT TO PROVE IT, IF DENIED, STILL
IF ITS TITLE TO THE LANDS UNDER WATER WERE ESTABLISHED OR ADMITTED TO
BE AS ALLEGED, THE QUESTION WOULD REMAIN WHETHER THE DEFENDANT IN
IMPOSING RESTRICTIONS UPON THE USE OF THE PROPERTY WAS ACTING BY VIRTUE
OF AUTHORITY VALIDLY CONFERRED BY A GENERAL ACT OF CONGRESS.  THIS WAS
THE PRINCIPAL QUESTION WHICH THE COMPLAINANT SOUGHT TO HAVE
DETERMINED." 

FN24  THE REASONING OF THE GOLTRA CASE IS ALSO CONTRADICTED BY  THE
CONCLUSION REACHED BY THE COURT IN THE CONVERSE CASE - WHERE A SUIT IS
BROUGHT AGAINST THE UNITED STATES, IN WHICH IT IS CLAIMED THAT THE
TORTIOUS ACTIONS OF PUBLIC OFFICERS, WITHIN THE SCOPE OF THEIR
DELEGATED POWERS, ARE THE ACTIONS OF THE UNITED STATES AND GIVE RISE TO
A CAUSE OF ACTION AGAINST IT FOR BREACH OF AN IMPLIED CONTRACT. 
PORTSMOUTH CO. V. UNITED STATES, 260 U.S. 327(1922), DEMONSTRATES THAT
SUCH SUITS CANNOT BE DEFEATED BY ARGUING THAT THE OFFICERS' ACTIONS,
BECAUSE TORTIOUS, ARE OUTSIDE OF THEIR AUTHORITY AND HENCE NOT ACTIONS
OF THE UNITED STATES.  CF. HOOE V. UNITED STATES, 218 U.S.
322(1910)(SPECIFIC LIMITATION ON THE AGENT'S AUTHORITY).  SEE ALSO
UNITED STATES V. CAUSBY, 328 U.S. 256, 267(1946).    FN25  WHETHER THE
ACTUAL DECISION IN THE GOLTRA CASE, ON THE BASIS OF THE FACTS THERE
PRESENTED, WAS CORRECT OR NOT IS NOT RELEVANT TO THE DISPOSITION OF THE
PRESENT CASE, AND WE EXPRESS NO OPINION ON THAT QUESTION.  GOLTRA,
UNLIKE GOLDBERG, DOES NOT PRESENT A PARALLEL TO THE FACTS IN THE CASE
AT BAR.  THE ACTION COMPLAINED OF THERE WAS A SEIZURE WITH A STRONG
HAND WHICH WAS CLAIMED TO BE UNCONSTITUTIONAL, AS AN ARBITRARY TAKING
OF PROPERTY WITHOUT DUE PROCESS OF LAW.  INDEED, THE DISTRICT COURT
TOOK JURISDICTION ON THE THEORY THAT THE CASE BEFORE IT, LIKE THE LEE
CASE, WAS A CASE OF UNCONSTITUTIONAL ACTION.  THERE IS NO SUCH CLAIM IN
THE PRESENT CASE. 

FN26  IN ADDITION TO GOLTRA V. WEEKS, SUPRA, THREE OTHER CASES ARE
ARGUED TO BE INCONSISTENT WITH THIS PRINCIPLE:  SLOAN SHIPYARDS V. U.S.
FLEET CORP., 258 U.S. 549(1922); LAND V. DOLLAR, 330 U.S. 731(1947);
AND ICKES V. FOX, 300 U.S. 82(1937). 

THE SLOAN SHIPYARDS CASE IS ENTIRELY INAPPOSITE.  THE SUIT THERE WAS
AGAINST A CORPORATE AGENCY OF THE UNITED STATES WHICH HAD NOT ACTED IN
THE NAME OF THE UNITED STATES BUT IN ITS OWN CORPORATE NAME AND RIGHT. 
THE COURT HELD ONLY THAT THE FACT OF AGENCY DID NOT IMMUNIZE THE AGENT
FROM LIABILITY ON ITS OWN CONTRACTS. 

IN LAND V. DOLLAR, WHERE THE PLAINTIFFS ALLEGED THAT THEY WERE
ENTITLED TO STOCK HELD BY THE MARITIME COMMISSION BECAUSE THE STOCK WAS
RECEIVED BY THE COMMISSION ONLY AS A PLEDGE, IT WAS CONTENDED THAT ANY
OTHER KIND OF ACQUISITION WOULD CONSTITUTE A VIOLATION OF SEC. 207 OF
THE MERCHANT MARINE ACT, WHICH ALLEGEDLY GAVE THE COMMISSION AUTHORITY
TO ACQUIRE STOCK ONLY AS COLLATERAL.  THE COMPLAINT THEREFORE ALLEGED
THAT THE MEMBERS OF THE COMMISSION "ACTED IN EXCESS OF THEIR AUTHORITY
AS PUBLIC OFFICERS."  330 U.S. AT 738. 

THE GROUND FOR DECISION IN ICKES V. FOX IS NOT ALTOGETHER CLEAR.  THE
ARGUMENT WAS MADE IN THAT CASE THAT THE SECRETARY OF THE INTERIOR HAD
NO STATUTORY POWER TO OVERRULE A DETERMINATION OF THE RIGHTS OF THE
PLAINTIFFS MADE BY HIS PREDECESSOR IN OFFICE.  300 U.S. AT 86.  THE
TORTIOUS INJURY TO THE PLAINTIFFS WAS ALSO ARGUED, IN RELIANCE ON
GOLTRA V. WEEKS, AS A BASIS FOR AVOIDING THE SOVEREIGN'S IMMUNITY.  THE
COURT APPEARS TO HAVE RELIED ON BOTH GROUNDS WITHOUT INDICATING WHICH
WAS CONTROLLING.  IT SAID:  "THE SUITS  ...  ARE BROUGHT TO ENJOIN THE
SECRETARY OF THE INTERIOR FROM ENFORCING AN ORDER, THE WRONGFUL EFFECT
OF WHICH WILL BE TO DEPRIVE RESPONDENTS OF VESTED PROPERTY RIGHTS NOT
ONLY ACQUIRED UNDER CONGRESSIONAL ACTS, STATE LAWS AND GOVERNMENT
CONTRACTS, BUT SETTLED AND DETERMINED BY HIS PREDECESSORS IN OFFICE". 
ID. AT 96-97.  IN SUPPORT OF THE CONCLUSION THAT THE SUIT COULD BE
MAINTAINED, THE COURT RELIED FIRST ON NOBLE V. UNION LOGGING R. CO.,
147 U.S. 165(1893), A DECISION RESTING ENTIRELY ON THE OFFICER'S LACK
OF STATUTORY POWER TO OVERRULE THE DECISION OF HIS PREDECESSOR. 

FN27  THERE COULD NOT BE SINCE THE RESPONDENT ADMITTEDLY HAS A
REMEDY, IN A SUIT FOR BREACH OF CONTRACT, IN THE COURT OF CLAIMS.  SUCH
A SUIT, INDEED, WOULD BE BASED ON THE THEORY THAT THE ACTION OF THE
ADMINISTRATOR IN REFUSING TO DELIVER WAS THE ACTION OF THE UNITED
STATES AND THUS CREATED A CAUSE OF ACTION AGAINST IT FOR BREACH OF
CONTRACT.  ONLY IF THE ADMINISTRATOR'S ACTION WAS WITHIN HIS AUTHORITY
COULD SUCH A SUIT BE MAINTAINED.  HOOE V. UNITED STATES, 218 U.S.
322(1910).  IT HAS NEVER BEEN SUGGESTED THAT A SUIT IN THE COURT OF
CLAIMS FOR BREACH OF AN EXPRESS CONTRACT COULD BE DEFEATED BECAUSE THE
ACTION OF THE OFFICER IN BREACHING IT CONSTITUTED A TORT AND WAS
THEREFORE "UNAUTHORIZED." 

FN28 SEE BROOKS V. UNITED STATES, 337 U.S. 49(1949). 

FN29  DECATUR V. PAULDING, 14 PET. 497, 516(1840). 

MR. JUSTICE DOUGLAS. 

I THINK THAT THE PRINCIPLES ANNOUNCED BY THE COURT ARE THE ONES WHICH
SHOULD GOVERN THE SELLING OF GOVERNMENT PROPERTY.  LESS STRICT
APPLICATIONS OF THOSE PRINCIPLES WOULD CAUSE INTOLERABLE INTERFERENCE
WITH PUBLIC ADMINISTRATION.  TO MAKE THE RIGHT TO SUE THE OFFICER TURN
ON WHETHER BY THE LAW OF SALES TITLE HAD PASSED TO THE BUYER WOULD CLOG
THIS GOVERNMENTAL FUNCTION WITH INTOLERABLE BURDENS.  SO I HAVE JOINED
THE COURT'S OPINION. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON DISSENTS. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE BURTON CONCURS,
DISSENTING. 

CASE-BY-CASE ADJUDICATION GIVES TO THE JUDICIAL PROCESS THE IMPACT OF
ACTUALITY AND THEREBY SAVES IT FROM THE HAZARDS OF GENERALIZATIONS
INSUFFICIENTLY NOURISHED BY EXPERIENCE.  THERE IS, HOWEVER, AN
ATTENDANT WEAKNESS TO A SYSTEM THAT PURPORTS TO PASS MERELY ON WHAT ARE
DEEMED TO BE THE PARTICULAR CIRCUMSTANCES OF A CASE.  CONSCIOUSLY OR
UNCONSCIOUSLY THE PRONOUNCEMENTS IN AN OPINION TOO OFTEN EXCEED THE
JUSTIFICATION OF THE CIRCUMSTANCES ON WHICH THEY ARE BASED, OR,
CONTRARIWISE, JUDICIAL PREOCCUPATION WITH THE CLAIMS OF THE IMMEDIATE
LEADS TO A SUCCESSION OF AD HOC DETERMINATIONS MAKING FOR EVENTUAL
CONFUSION AND CONFLICT.  THERE COMES A TIME WHEN THE GENERAL
CONSIDERATIONS UNDERLYING EACH SPECIFIC SITUATION MUST BE EXPOSED IN
ORDER TO BRING THE TOO UNRULY INSTANCES INTO MORE FRUITFUL HARMONY. 
THE CASE BEFORE US PRESENTS ONE OF THOSE PROBLEMS FOR THE RATIONAL
SOLUTION OF WHICH IT BECOMES NECESSARY, AS A MATTER OF JUDICIAL SELF
RESPECT, TO TAKE SOUNDINGS IN ORDER TO KNOW WHERE WE ARE AND WHITHER WE
ARE GOING. 

THE CASE BEFORE US IS THIS. 

THE GOVERNMENT HAD SOME SURPLUS COAL AT AN ARMY CAMP IN TEXAS.  ON
MARCH 11, 1947, THE WAR ASSETS ADMINISTRATION, THROUGH THE REGIONAL
OFFICE IN DALLAS, TEXAS, INVITED A BID FROM THE PLAINTIFF, RESPONDENT
HERE, FOR PURCHASE OF THE COAL.  THE DALLAS OFFICE EXPRESSED THUS ITS
APPROVAL OF THE BID SUBMITTED BY THE PLAINTIFF:  "  ...  YOUR TERMS OF
PLACING $17,500.00 WITH THE FIRST NATIONAL BANK, DALLAS, TEXAS, FOR
PAYMENT UPON PRESENTATION OF OUR INVOICES TO SAID BANK ARE ACCEPTED." 
THEREUPON THE PLAINTIFF ARRANGED FOR RESALE OF THE COAL AND ITS
SHIPMENT ABROAD.  ON APRIL 1, 1947, THE DALLAS OFFICE WIRED THE
PLAINTIFF THAT UNLESS THE SUM OF $17,500 WAS DEPOSITED IN THE FIRST
NATIONAL BANK IN DALLAS BY NOON APRIL 4, "THE SALE WILL BE CANCELLED
AND OTHER DISPOSITION MADE."  THOUGH CLAIMING THAT THIS DEMAND WAS IN
THE TEETH OF THE CONTRACT, THE PLAINTIFF ARRANGED FOR AN IRREVOCABLE
LETTER OF CREDIT PAYABLE THROUGH THE FIRST NATIONAL BANK OF DALLAS TO
THE WAR ASSETS ADMINISTRATION.  THE DALLAS OFFICE NOW INSISTED THAT
UNLESS CASH WAS DEPOSITED "THE SALE OF 10,000 TONS OF COAL  ...  WILL
BE CANCELLED TEN DAYS FROM THIS DATE."  THAT OFFICE DISREGARDED FURTHER
ENDEAVORS BY THE PLAINTIFF TO ADJUST THE MATTER, AND ON APRIL 16 IT
INFORMED THE PLAINTIFF THAT THE CONTRACT WAS CANCELED.  HAVING LEARNED
THAT THE COAL WAS TO BE SOLD TO ANOTHER CONCERN, THE PLAINTIFF,
ASSERTING OWNERSHIP IN THE COAL AND THE THREAT OF IRREPARABLE DAMAGE,
BROUGHT THIS SUIT IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT OF COLUMBIA TO RESTRAIN THE WAR ASSETS ADMINISTRATOR AND THOSE
UNDER HIS CONTROL FROM TRANSFERRING THE COAL TO ANY OTHER PERSON THAN
THE PLAINTIFF.  FN1 

AFTER ISSUING A TEMPORARY RESTRAINING ORDER THE DISTRICT COURT ON MAY
6, 1947, DISMISSED THE SUIT WITH THIS ORAL OBSERVATION:  "I AM
SATISFIED THAT THIS SUIT IS IN EFFECT A SUIT FOR SPECIFIC PERFORMANCE
AND THE UNITED STATES IS A NECESSARY PARTY, AND THIS COURT IS WITHOUT
JURISDICTION."  THE COURT OF APPEALS TOOK A DIFFERENT VIEW:  "APPELLANT
...  DID NOT SEEK THE COURT'S AID TO INTERFERE IN THE USE OF OFFICIAL
DISCRETION BY THE APPELLEE.  SUCH DISCRETION WAS EXERCISED AT THE TIME
THE CONTRACT WITH APPELLANT WAS ENTERED INTO.  IF THAT CONTRACT SERVED
TO VEST TITLE IMMEDIATELY IN APPELLANT THEN IT FOLLOWS THAT THE RULING
IN PHILADELPHIA CO. V. STIMSON, 223 U.S. 650,  ...  IS CONTROLLING
HERE.  ...  CLEARLY, THEN, IT WAS INCUMBENT UPON THE LOWER COURT IN
DETERMINING ITS JURISDICTIONAL CAPACITY TO DECIDE THE ULTIMATE QUESTION
OF WHETHER OR NOT A CONTRACT OF SALE HAD BEEN CONSUMMATED BETWEEN
APPELLANT AND APPELLEE."  165 F.2D 235. 

THE CONFLICT BETWEEN THE DISTRICT COURT AND THE COURT OF APPEALS ON
THESE FACTS REFLECTS FAIRLY ENOUGH THE SEEMING DISHARMONY OF THE
NUMEROUS OPINIONS IN WHICH THIS COURT HAS DEALT WITH THE CLAIM OF
IMMUNITY OF GOVERNMENT FROM UNCONSENTED SUIT.  AS TO THE STATES, LEGAL
IRRESPONSIBILITY WAS WRITTEN INTO THE CONSTITUTION BY THE ELEVENTH
AMENDMENT; AS TO THE UNITED STATES, IT IS DERIVED BY IMPLICATION. 
MONACO V. MISSISSIPPI, 292 U.S. 313, 321; SEE BLOCK, SUITS AGAINST
GOVERNMENT OFFICERS AND THE SOVEREIGN IMMUNITY DOCTRINE, 59 HARV. L.
REV., 1060, 1064-1065(1946).  THE SOURCES OF THE IMMUNITY ARE FORMALLY
DIFFERENT BUT THEY PRESENT THE SAME LEGAL ISSUES. 

THE SUBJECT IS NOT FREE FROM CASUISTRY.  THIS IS DOUBTLESS DUE TO THE
FACT THAT A STEADY CHANGE OF OPINION HAS GRADUALLY UNDERMINED
UNQUESTIONED ACCEPTANCE OF THE SOVEREIGN'S FREEDOM FROM ORDINARY LEGAL
RESPONSIBILITY.  THE VEHEMENT SPEED WITH WHICH THE ELEVENTH AMENDMENT
DISPLACED THE DECISION IN CHISHOLM V. GEORGIA, 2 DALL.  419(1793),
PROVES HOW DEEPLY ROOTED THAT DOCTRINE WAS IN THE EARLY DAYS OF THE
REPUBLIC.  SEE NEW HAMPSHIRE V. LOUISIANA, 108 U.S. 76, 86-88.  IN THE
COURSE OF A CENTURY OR MORE A STEADILY EXPANDING CONCEPTION OF PUBLIC
MORALITY REGARDING "GOVERNMENTAL RESPONSIBILITY" HAS LED TO A "GENEROUS
POLICY OF CONSENT FOR SUITS AGAINST THE GOVERNMENT" TO COMPENSATE FOR
THE NEGLIGENCE OF ITS AGENTS AS WELL AS TO SECURE OBEDIENCE TO ITS
CONTRACTS.  KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP., 306 U.S.
381, 396; SEE ALSO BORCHARD'S BIBLIOGRAPHY IN 20 A.B.A.J. 747, 748, AND
THE MATERIALS IN JUDGE MACK'S OPINION IN THE PESARO, 277 F. 473,
REVERSED, 271 U.S. 562. 

THE COURSE OF DECISIONS CONCERNING SOVEREIGN IMMUNITY IS A GOOD
ILLUSTRATION OF THE CONFLICTING CONSIDERATIONS THAT OFTEN STRUGGLE FOR
MASTERY IN THE JUDICIAL PROCESS, AT LEAST IMPLICITLY.  IN VARYING
DEGREES, AT DIFFERENT TIMES, THE MOMENTUM OF THE HISTORIC DOCTRINE IS
ARRESTED OR DEFLECTED BY AN UNEXPRESSED FEELING THAT GOVERNMENTAL
IMMUNITY RUNS COUNTER TO PREVAILING NOTIONS OF REASON AND JUSTICE. 
LEGAL CONCEPTS ARE THEN FOUND AVAILABLE TO GIVE EFFECT TO THIS FEELING,
AND ONE OF ITS RESULTS IS THE MULTITUDE OF DECISIONS IN WHICH THIS
COURT HAS REFUSED TO PERMIT AN AGENT OF THE GOVERNMENT TO CLAIM THAT HE
IS PRO TANTO THE GOVERNMENT AND THEREFORE SHELTERED BY ITS IMMUNITY. 
MULTITUDINOUS AS ARE THESE CASES AND THE SEEMING INCONSISTENCIES AMONG
THEM, ANALYSIS REVEALS CERTAIN COMMON CONSIDERATIONS.  THE CASES IN
WHICH CLAIM WAS MADE THAT A SUIT AGAINST ONE WHO HOLDS PUBLIC OFFICE IS
IN FACT A SUIT AGAINST THE GOVERNMENT FALL INTO WELL-DEFINED
CATEGORIES.  (SEE THE APPENDIX, POST, PP. 729-732.)  THOUGH OUR
OPINIONS HAVE NOT ALWAYS BEEN CONSCIOUSLY DIRECTED TOWARD THIS
CLASSIFICATION, IT IS SUPPORTED NOT ONLY BY WHAT WAS ACTUALLY DECIDED
BUT ALSO BY MUCH THAT IS EXPRESSLY SAID. 

OUR DECISIONS FALL UNDER THESE HEADS: 

(1)  CASES IN WHICH THE PLAINTIFF SEEKS AN INTEREST IN PROPERTY WHICH
CONCEDEDLY, EVEN UNDER THE ALLEGATION OF THE COMPLAINT, BELONGS TO THE
GOVERNMENT, OR CALLS FOR AN ASSERTION OF WHAT IS UNQUESTIONABLY
OFFICIAL AUTHORITY.  FN2 

(2)  CASES IN WHICH ACTION TO THE LEGAL DETRIMENT OF A PLAINTIFF IS
TAKEN BY AN OFFICIAL JUSTIFYING HIS ACTION UNDER AN UNCONSTITUTIONAL
STATUTE.  FN3 

(3)  CASES IN WHICH A PLAINTIFF SUFFERS A LEGAL DETRIMENT THROUGH
ACTION OF AN OFFICER WHO HAS EXCEEDED HIS STATUTORY AUTHORITY.  FN4 

(4)  CASES IN WHICH AN OFFICER SEEKS SHELTER BEHIND STATUTORY
AUTHORITY OR SOME OTHER SOVEREIGN COMMAND FOR THE COMMISSION OF A
COMMON-LAW TORT.  FN5 

1.  THE SERIES OF CASES WHICH COME WITHIN THE FIRST CATEGORY BEGAN
WITH GOVERNOR OF GEORGIA V. MADRAZO, 1 PET. 110(1828).  THERE A CLAIM
WAS MADE UPON THE GOVERNOR OF GEORGIA, AS GOVERNOR, FOR MONEYS IN THE
TREASURY OF THE STATE AND SLAVES IN ITS POSSESSION.  THE COURT, IN AN
OPINION BY CHIEF JUSTICE MARSHALL, HELD THAT THE STATE WAS ACTUALLY
THOUGH NOT FORMALLY THE DEFENDANT IN THE SUIT.  THIS WAS A DEPARTURE BY
MARSHALL FROM WHAT HE HAD SAID A FEW YEARS EARLIER IN OSBORN V. BANK OF
THE UNITED STATES, 9 WHEAT.  738, TO THE EFFECT THAT THE ELEVENTH
AMENDMENT IS "LIMITED TO THOSE SUITS IN WHICH A STATE IS A PARTY ON THE
RECORD."  ID. AT P. 857.  SUCH A FORMAL TEST COULD NOT LONG SURVIVE
EXPERIENCE, AND IT WAS EXPLICITLY LAID TO REST IN IN RE AYERS, 123 U.S.
443, 487, ET SEQ. 

THE CRUCIAL QUESTION IN THIS CLASS OF CASES IS:  WHEN DOES A SUIT
AGAINST ONE HOLDING OFFICE INEVITABLY INVOLVE THE EXERCISE OF POWERS
THAT ARE HIS AS A FUNCTIONARY OF GOVERNMENT?  MARSHALL'S DECISION IN
THE CASE OF THE GOVERNOR OF GEORGIA DISPOSED OF THIS QUESTION WITH HIS
SENTENTIOUS CHARACTERIZATION OF THE NATURE OF THE CLAIM AGAINST THE
GOVERNOR:  "THE DEMAND MADE UPON HIM, IS NOT MADE PERSONALLY, BUT
OFFICIALLY."  GOVERNOR OF GEORGIA V. MADRAZO, SUPRA, 1 PET. 110, 123. 
BUT THE ANSWER IS NOT ALWAYS AS MANIFEST AS IT WAS IN THAT CASE, FOR
THE GOVERNOR WAS ASKED TO SURRENDER MONEYS ACTUALLY IN THE STATE'S
TREASURY AND PROPERTY IN ITS POSSESSION.  THE FACT THAT A DEFENDANT HAS
NO PERSONAL CONNECTION WITH CONDUCT FOR WHICH REDRESS IS SOUGHT IS AN
INDICATION THAT HE IS BEING SUED BECAUSE HIS POSITION EMPOWERS HIM TO
CARRY OUT THE DESIRED RELIEF.  ON THE OTHER HAND, THE MERE FACT THAT
HIS OFFICIAL CAPACITY IS ASCRIBED TO THE AGENT AGAINST WHOM RELIEF IS
SOUGHT IS NOT CONCLUSIVE THAT HE IS BEING SUED AS FOR HIS SOVEREIGN. 
SEE E.G., PERKINS V. ELG, 307 U.S. 325.    THE PERVASIVE MANIFESTATIONS
OF MODERN GOVERNMENT BEGET SITUATIONS IN WHICH IT IS NOT ALWAYS OBVIOUS
WHETHER THE DEMAND MADE UPON AN INDIVIDUAL IS, IN MARSHALL'S
PHRASEOLOGY, "NOR MADE PERSONALLY, BUT OFFICIALLY."  SUCH AN AMBIGUITY
AS TO THE MEANING OF PARTICULAR CIRCUMSTANCES IS A COMMONPLACE TASK FOR
THE JUDICIAL PROCESS.  THE GOVERNING PRINCIPLE IS CLEAR ENOUGH.  IF A
DEFENDANT IS ASKED TO TRANSFER THE POSSESSION OR TITLE OF PROPERTY
WHICH IS THE GOVERNMENT'S, JUDGED BY THE CONVENTIONAL TESTS OF
POSSESSION OR OWNERSHIP, OR IF HE IS ASKED TO EXERCISE AUTHORITY WITH
WHICH THE STATE HAS INVESTED HIM AND THE DESIRED ACTION IS IN FACT
GOVERNMENTAL ACTION SO FAR AS AN INDIVIDUAL IS EVER PRO TANTO THE
IMPERSONAL GOVERNMENT, SUCH DEMANDS ARE EFFECTIVELY DEMANDS UPON THE
SOVEREIGN, WHICH REQUIRE THE SOVEREIGN'S CONSENT AS A PREREQUISITE TO
THE GRANT OF JUDICIAL REMEDIES. 

2.  TO THE SECOND CATEGORY BELONG THE CASES WHERE AN OFFICIAL ASSERTS
THE AUTHORITY OF A STATUTE FOR HIS ACTION BUT THE INJURED PLAINTIFF
CHALLENGES THE CONSTITUTIONALITY OF THE STATUTE.  THREATENED INJURY
WILL THEN BE ENJOINED IF THE PLAINTIFF OTHERWISE SATISFIES THE
REQUIREMENTS FOR EQUITABLE INTERVENTION.  ALLEN V. BALTIMORE & O.R.
CO., 114 U.S. 311; REAGAN V. FARMERS' LOAN & TRUST CO., 154 U.S. 362;
EX PARTE YOUNG, 209 U.S. 123; RICKERT RICE MILLS V. FONTENOT, 297 U.S.
110.  SO ALSO RECOVERY MAY BE HAD OF PROPERTY IN AN ACTION AGAINST AN
OFFICIAL WHEN THE STATUTE UNDER WHICH THE SEIZURE OF THE PROPERTY WAS
MADE IS UNCONSTITUTIONAL.  POINDEXTER V. GREENHOW, 114 U.S. 270.  IN
THESE CASES THE SUIT AGAINST ONE HOLDING OFFICE IS DEEMED "A SUIT
AGAINST HIM PERSONALLY AS A WRONGDOER AND NOT AGAINST THE STATE."  EX
PARTE YOUNG, SUPRA, 209 U.S. 123, 151. 

THESE CASES LIKEWISE APPLY A PRINCIPLE THAT IS CLEAR.  THERE IS AN
APPEARANCE OF INCONSISTENCY IN SOME OF THE CASES ONLY BECAUSE OPINIONS
ALSO ARE PREY TO THE FRAILTIES OF COMPOSITION.  FAMILIAR PHRASES ARE
NOT ALWAYS USED WITH CRITICAL PRECISION OR WITH DUE RELEVANCE TO THE
CIRCUMSTANCES OF A PARTICULAR CASE. 

SPECIFICALLY, THERE ARE INSTANCES WHERE THE UNCONSTITUTIONALITY OF A
STATUTE WAS CONCEDED AND YET THE LANGUAGE OF SOVEREIGN IMMUNITY WAS
INVOKED TO BAR SUIT.  SEE, E.G., NORTH CAROLINA V. TEMPLE, 134 U.S. 22;
CHRISTIAN V. ATLANTIC & N.C.R. CO., 133 U.S. 233; NEW YORK GUARANTY &
INDEMNITY CO. V. STEELE, 134 U.S. 230.  THESE CASES DO NOT QUALIFY THE
PRINCIPLE OF THE CASES IN CATEGORY TWO.  REGARD FOR THE FACTS OF THESE
CASES BRINGS THEM WITHIN THE FIRST CATEGORY BECAUSE THE NATURE OF THE
RELIEF REQUESTED MAKES THEM EITHER CASES IN WHICH GOVERNMENT PROPERTY
WOULD HAVE TO BE TRANSFERRED, OR CASES WHERE THE PERSON SUED COULD
SATISFY THE COURT DECREE ONLY BY ACTING IN AN OFFICIAL CAPACITY.  THE
TORTFEASOR, THAT IS, IS NOT IMMUNIZED BECAUSE HE HAPPENED TO HOLD
OFFICE, BUT BECAUSE THE TORT CANNOT BE REDRESSED OR, IF THREATENED,
AVERTED, WITHOUT BRINGING INTO OPERATION GOVERNMENTAL MACHINERY. 

THUS, EVEN THOUGH A PLAINTIFF'S RIGHTS UNDER A BOND ARE
UNCONSTITUTIONALLY SOUGHT TO BE DIMINISHED, HE CANNOT HAVE HIS BOND
RESPECTED IF TO DO SO A COURT WOULD HAVE TO ORDER THE LEVYING AND
COLLECTING OF A TAX.  ONLY THE STATE CAN EXACT TAXES, AND THAT
SOVEREIGN FUNCTION CANNOT BE ENFORCED WITHOUT THE STATE'S CONSENT BY
PRETENDING TO SUE A TAX COLLECTOR AS AN INDIVIDUAL EVEN THOUGH THE
INDIVIDUAL SUED HAD THE DUTY, UNDER THE STATUTE, TO COLLECT THE TAX. 
NORTH CAROLINA V. TEMPLE, 134 U.S. 22.  AGAIN, IF TITLE TO PROPERTY IS
IN THE GOVERNMENT, A SUIT TO SECURE TRANSFER OF THAT PROPERTY TO THE
PLAINTIFF WILL NOT LIE AGAINST AN OFFICIAL SUED AS AN INDIVIDUAL EVEN
THOUGH THE STATE ACQUIRED TITLE BY WAY OF AN UNCONSTITUTIONAL STATUTE. 
CUNNINGHAM V. MACON & BRUNSWICK R. CO., 109 U.S. 446; CHRISTIAN V.
ATLANTIC & N.C.R. CO., 133 U.S. 233; SEE LAND V. DOLLAR, 330 U.S. 731,
737-738.  SO, ALSO, IF THE RELIEF SOUGHT BY AN INJURED PLAINTIFF WOULD
INVOLVE, IN PART AT LEAST, DESTRUCTION OF THE GOVERNMENT'S INTEREST IN
PROPERTY, THAT PART OF RELIEF CANNOT BE GRANTED EVEN THOUGH A TORT
COMMITTED BY A GOVERNMENTAL AGENT GAVE RISE TO THE INJURY.  BELKNAP V.
SCHILD, 161 U.S. 10; HOPKINS V. CLEMSON AGRICULTURAL COLLEGE, 221 U.S.
636.  TO THE EXTENT THAT RELIEF CAN BE GRANTED WITHOUT AFFECTING
PROPERTY RIGHTS OF A STATE, NOT A CONSENTING PARTY TO A CONTROVERSY, AN
ACTION IS NOT BARRED.  HOPKINS V. CLEMSON AGRICULTURAL COLLEGE, SUPRA,
221 U.S. 636, 649; SEE INTERNATIONAL POSTAL SUPPLY CO. V. BRUCE, 194
U.S. 601, 605-606. 

SINCE THE CASES TO WHICH REFERENCE HAS JUST BEEN MADE USUALLY INVOLVE
STATE DEBTS AND MONEY IN A STATE TREASURY, THEY HAVE SERVED TO SPONSOR
THE PROPOSITION THAT A SUIT WILL NOT BE PERMITTED WHERE THE RELIEF
SOUGHT WOULD "EXPEND ITSELF ON THE PUBLIC TREASURY OR DOMAIN, OR
INTERFERE WITH THE PUBLIC ADMINISTRATION."  LAND V. DOLLAR, 330 U.S.
731, 738.  THIS IS A WAY OF SAYING THAT A COURT CANNOT ENTERTAIN AN
ACTION, WHEN THE SOVEREIGN HAS NOT CONSENTED TO BE SUED, IF THE
JUDGMENT SOUGHT FROM THE COURT WOULD REQUIRE AN OFFICIAL TO DO THAT
WHICH HE COULD ONLY DO BY VIRTUE OF THE FACT THAT HE IS AN OFFICIAL,
THAT QUOAD HOC HE IS THE STATE.  BUT THE STATEMENT QUOTED DOES NOT MEAN
THAT THE MERE FACT THAT A STATE'S REVENUE IS ADVERSELY AFFECTED, IS
CONCLUSIVE OF A COURT'S JURISDICTION TO ENTERTAIN SUIT AGAINST ONE WHO
HAPPENS TO HOLD A PUBLIC OFFICE.  FOR EXAMPLE, IN BOARD OF LIQUIDATION
V. MCCOMB, 92 U.S. 531, A BONDHOLDER WAS PERMITTED TO ENJOIN AN ISSUE
OF BONDS WHICH WOULD HAVE REDUCED THE VALUE OF HIS HOLDINGS BECAUSE THE
ISSUE WAS AUTHORIZED BY A STATUTE WHICH OFFENDED THE IMPAIRMENT-OF
OBLIGATION CLAUSE.  AND SEE ALLEN V. BALTIMORE & O.R. CO., 114 U.S.
311; ATCHISON, T. & S.F.R. CO. V. O'CONNOR, 223 U.S. 280.  AND SUITS
HAVE LAIN TO OBTAIN PUBLIC LANDS WHERE THE DECREE INVOLVED NO
DISCRETION ON THE PART OF THE INDIVIDUAL WHOM THE DECREE BOUND.  SANTA
FE PAC. R. CO. V. FALL, 259 U.S. 197; NOBLE V. UNION RIVER LOGGING R.
CO., 147 U.S. 165; PAYNE V. CENTRAL PAC. R. CO., 255 U.S. 228. 

THE MATTER BOILS DOWN TO THIS.  THE FEDERAL COURTS ARE NOT BARRED
FROM ADJUDICATING A CLAIM AGAINST A GOVERNMENTAL AGENT WHO INVOKES
STATUTORY AUTHORITY FOR HIS ACTION IF THE CONSTITUTIONAL POWER TO GIVE
HIM SUCH A CLAIM OF IMMUNITY IS ITSELF CHALLENGED.  SOVEREIGN IMMUNITY
MAY, HOWEVER, BECOME RELEVANT BECAUSE THE RELIEF PRAYED FOR ALSO
ENTAILS INTERFERENCE WITH GOVERNMENTAL PROPERTY OR BRINGS THE OPERATION
OF GOVERNMENTAL MACHINERY INTO PLAY.  THE GOVERNMENT THEN BECOMES AN
INDISPENSABLE PARTY AND WITHOUT ITS CONSENT CANNOT BE IMPLICATED.  SEE
MR. JUSTICE BRANDEIS IN MORRISON V. WORK, 266 U.S. 481, 486-487. 

IT SHOULD ALSO BE NOTED THAT A CAUSE OF ACTION WHICH WOULD, FOR ONE
REASON OR ANOTHER, FAIL IF BROUGHT AGAINST A PRIVATE AGENT, IS NOT
SAVED BECAUSE IT IS BROUGHT AGAINST ONE HOLDING PUBLIC OFFICE
PURPORTING TO ACT UNDER AN UNCONSTITUTIONAL STATUTE.  THE ACTION MAY
FAIL BECAUSE THERE IS NO "CASE" OR "CONTROVERSY,"  FN6  OR BECAUSE THE
PLAINTIFF HAS NOT SUFFERED INVASION OF A LEGALLY PROTECTED INTEREST,
FN7  OR BECAUSE THE FOUNDATION FOR EQUITABLE RELIEF IS WANTING,  FN8
OR BECAUSE THE PARTICULAR DEFENDANT HAS COMMITTED NO WRONG.  FN9  SUCH
SITUATIONS PRESENT NO PROBLEM OF SOVEREIGN IMMUNITY, BUT LANGUAGE
PERTAINING TO SOVEREIGN IMMUNITY SOMETIMES CREEPS INTO OPINIONS
DISPOSING OF THEM. 

3.  RECOVERY HAS BEEN SUSTAINED WHERE, ALTHOUGH THE OFFICIAL ACTS
UNDER A VALID STATUTE, HE ACTUALLY EXCEEDED THE AUTHORITY WITH WHICH
THE STATUTE HAD INVESTED HIM.  AN ACTION THEN LIES AGAINST THE AGENT
BECAUSE "HE IS NOT SUED AS, OR BECAUSE HE IS, THE OFFICER OF THE
GOVERNMENT, BUT AS AN INDIVIDUAL, AND THE COURT IS NOT OUSTED OF
JURISDICTION BECAUSE HE ASSERTS AUTHORITY AS SUCH OFFICER.  TO MAKE OUT
HIS DEFENCE HE MUST SHOW THAT HIS AUTHORITY WAS SUFFICIENT IN LAW TO
PROTECT HIM."  PENNOYER V. MCCONNAUGHY, 140 U.S. 1, 14; SCULLY V. BIRD,
209 U.S. 481; PHILADELPHIA CO. V. STIMSON, 223 U.S. 605.  HERE ALSO THE
TRADITIONAL CRITERIA FOR JUDICIAL ACTION ARE PREREQUISITE (SEE, E.G.,
LOUISIANA V. MCADOO, 234 U.S. 627); IF THEY ARE NOT SATISFIED THE
QUESTION OF SOVEREIGN IMMUNITY DOES NOT EMERGE.  AND IF THE RELIEF
NECESSARILY IMPLICATES A RESORT TO STATE FUNDS THE STATE BECOMES AN
INDISPENSABLE PARTY AND WITHOUT ITS CONSENT THE SUIT MUST FAIL.  SEE
LOUISIANA V. MCADOO, SUPRA; LANKFORD V. PLATTE IRON WORKS, 235 U.S.
461. 

4.  THE FOURTH CATEGORY OF CASES BRINGS US TO THE CONTROVERSY
IMMEDIATELY BEFORE THE COURT AND DEMANDS DETAILED ANALYSIS.  THESE ARE
THE CASES, IT WILL BE RECALLED, IN WHICH AN OFFICIAL SEEKS TO SCREEN
HIMSELF BEHIND THE SOVEREIGN IN A SUIT AGAINST HIM BASED ON THE
COMMISSION OF A COMMON-LAW TORT.  SEE APPENDIX, PART II, C, POST, P.
732.  A PLAINTIFF'S RIGHT "UNDER GENERAL LAW TO RECOVER POSSESSION OF
SPECIFIC PROPERTY WRONGFULLY WITHHELD" MAY BE ENFORCED AGAINST AN
OFFICIAL AND HE CANNOT PLEAD THE SOVEREIGN'S IMMUNITY AGAINST THE
COURT'S POWER TO AFFORD A REMEDY.  LAND V. DOLLAR, 330 U.S. 731, 736;
BELKNAP V. SCHILD, 161 U.S. 10, 18-20; HOPKINS V. CLEMSON AGRICULTURAL
COLLEGE, 221 U.S. 636, 643. 

THE STARTING POINT OF THIS LINE OF CASES IS UNITED STATES V. LEE, 106
U.S. 196.  FAMILIAR AS THAT CASE IS, ITS CONTROLLING FACTS BEAR
REHEARSAL.  THE ARLINGTON ESTATE OF GENERAL ROBERT E. LEE WAS SEIZED
FOR NONPAYMENT OF TAXES.  THESE TAXES HAD IN FACT BEEN TENDERED BY A
FRIEND, BUT THE OFFICIAL HAD INTERPRETED HIS AUTHORITY AS PERMITTING
PAYMENT OF THE TAXES ONLY BY THE RECORD OWNER.  AFTER SEIZURE, THE
UNITED STATES ESTABLISHED A FORT AND CEMETERY ON THE LAND.  THE
PLAINTIFF, IN WHOM TITLE TO THE ARLINGTON ESTATE VESTED IF ITS SEIZURE
COULD NOT BE JUSTIFIED, BROUGHT AN ACTION OF EJECTMENT AGAINST THE
GOVERNMENTAL CUSTODIANS OF THE ESTATE.  AFTER THE OVERRULING OF A
SUGGESTION BY THE ATTORNEY GENERAL OF THE UNITED STATES THAT THE
CIRCUIT COURT WAS WITHOUT JURISDICTION BECAUSE THE PROPERTY WAS IN
POSSESSION OF THE UNITED STATES, THE ACTION WAS SUSTAINED AGAINST THE
DEFENDANTS SINCE THEY COULD NOT JUSTIFY THEIR POSSESSION BY PROOF OF A
VALID TITLE IN THE GOVERNMENT.  THIS COURT AFFIRMED, HOLDING THAT THE
LOWER COURT WAS COMPETENT TO DECIDE THE ISSUES BETWEEN THE PARTIES
WITHOUT THE NEED OF IMPLEADING THE GOVERNMENT WHOSE CONSENT WAS
WITHHELD. 

WHILE THERE WAS SOME TALK IN THE LEE OPINION, AS WELL AS IN SOME OF
THE CASES WHICH FOLLOWED THAT DECISION, ABOUT TAKING PROPERTY WITHOUT
COMPENSATION, THE BASIS OF THE ACTION WAS THAT THE DEFENDANTS WERE
ORDINARY TORTFEASORS, NOT IMMUNIZED FOR THEIR WRONGFUL INVASION OF THE
PLAINTIFF'S PROPERTY BY THE FACT THAT THEY CLAIMED TO HAVE ACTED ON
BEHALF OF THE GOVERNMENT.  FN10  THIS GROUP OF CASES IS QUITE DIFFERENT
FROM THOSE IN WHICH THE PLAINTIFF CLAIMED THAT THE DEFENDANT,
PURPORTING TO ACT IN AN OFFICIAL CAPACITY, EXCEEDED THE AUTHORITY WHICH
A STATUTE CONFERRED UPON HIM, OR THAT THE STATUTE UNDER WHICH HE
JUSTIFIED HIS ACTION EXCEEDED THE POWER OF THE LEGISLATURE TO CONFER
SUCH AUTHORITY.  IN THIS CLASS OF CASES THE GOVERNMENTAL AGENT HAD
VALID STATUTORY AUTHORITY BUT HE DETERMINED ERRONEOUSLY THE CONDITION
WHICH HAD TO EXIST BEFORE HE COULD EXERCISE IT.  THE BASIS OF ACTION IN
THIS CLASS OF CASES IS THE DEFENDANT'S PERSONAL RESPONSIBILITY FOR THE
COMMISSION OF A TORT, WHICH MAKES IT IRRELEVANT THAT BY WAIVING THE
CASE AGAINST THE GOVERNMENTAL AGENT THE PLAINTIFF MIGHT CHOOSE TO SUE
THE GOVERNMENT AS FOR A CONTRACT.  A DETAILED CONSIDERATION OF FOUR
RECENT CASES SHOULD LEAVE NO DOUBT REGARDING THE SETTLED COURSE OF
DECISION IN CONFORMITY WITH THIS PRINCIPLE. 

(A) IN SLOAN SHIPYARDS CORP. V. UNITED STATES FLEET CORP., 258 U.S.
549, THE CONTROVERSY AROSE IN CONNECTION WITH A CONTRACT BETWEEN SLOAN
SHIPYARDS AND THE FLEET CORPORATION, A GOVERNMENT CORPORATION.  A
PROVISO IN THE CONTRACT AUTHORIZED THE UNITED STATES TO TAKE OVER THE
PLANT AND COMPLETE THE CONTRACT ON SLOAN SHIPYARDS' FAILURE TO
PERFORM.  UNDER A STATUTE THE UNITED STATES COULD ALSO CONDEMN THE LAND
AND THE BUSINESS, IF THAT WERE DEEMED NECESSARY FOR THE SUCCESSFUL
CONDUCT OF THE WAR.  THAT WOULD BRING INTO PLAY A RIGHT TO COMPENSATION
ENFORCEABLE IN THE COURT OF CLAIMS.  THE FLEET CORPORATION SEIZED THE
PLANT, BUT IT WAS NOT MADE MANIFEST THAT THE SEIZURE OF THE PLANT WAS
AN EXERCISE OF THE GOVERNMENT'S POWER OF CONDEMNATION.  SLOAN SHIPYARDS
BROUGHT SUIT FOR THE RETURN OF THE PROPERTY.  THE LOWER COURTS TREATED
THIS AS A SUIT FOR COMPENSATION, PURSUABLE AS SUCH AGAINST THE
GOVERNMENT, IN THE COURT OF CLAIMS.  THIS COURT, SPEAKING THROUGH MR.
JUSTICE HOLMES, REVERSED, TOOK THE BILL ON ITS FACE AS ONE BASED ON THE
WRONGFUL ACTS OF THE FLEET CORPORATION AND AS SUCH ENTERTAINABLE
REGARDLESS OF THE FACT THAT THE CONDUCT OF THE FLEET CORPORATION MIGHT
ALSO GIVE RISE TO A CLAIM FOR COMPENSATION AGAINST THE GOVERNMENT. 
FN11 

THIS DECISION, WHICH HAD THOROUGH CONSIDERATION HERE, WOULD HAVE TO
BE OVERRULED IF THE THEORY NOW PROPOSED FOR THIS CLASS OF CASES IS TO
BE ACCEPTED.  THE CRUX OF THE COURT'S OPINION LEAVES NO ROOM FOR
DOUBT: 

"THE PLAINTIFFS ARE NOT SUING THE UNITED STATES BUT THE FLEET
CORPORATION, AND IF ITS ACT WAS UNLAWFUL, EVEN IF THEY MIGHT HAVE SUED
THE UNITED STATES, THEY ARE NOT CUT OFF FROM A REMEDY AGAINST THE AGENT
THAT DID THE WRONGFUL ACT.  IN GENERAL THE UNITED STATES CANNOT BE SUED
FOR A TORT, BUT ITS IMMUNITY DOES NOT EXTEND TO THOSE THAT ACTED IN ITS
NAME.  IT IS NOT IMPOSSIBLE THAT THE FLEET CORPORATION PURPORTED TO ACT
UNDER THE CONTRACT GIVING IT THE RIGHT TO TAKE POSSESSION IN CERTAIN
EVENTS, BUT THAT THE PLAINTIFFS CAN SHOW THAT THE EVENTS HAD NOT
OCCURRED."  258 U.S. 549, 567-68. 

(B)  SO, TOO, GOLTRA V. WEEKS, 271 U.S. 536, WOULD HAVE TO GO BY THE
BOARD IF THE THEORY NOW PROPOSED WERE ACCEPTED.  THE GOVERNMENT HAD
LEASED ITS BARGES FOR OPERATION BY THE PLAINTIFF.  FOLLOWING A SEIZURE
OF SOME OF THE BARGES AND A THREAT TO SEIZE THE REST FOR ALLEGED
FAILURE TO COMPLY WITH THE LEASE TERMS, THE PLAINTIFF BROUGHT A BILL
AGAINST THE SECRETARY OF WAR AND THE CHIEF OF ENGINEERS TO ENJOIN THE
THREATENED SEIZURE AND TO SECURE RESTORATION OF THE BARGES ALREADY
SEIZED.  THIS COURT FOUND THAT IT WAS ERROR FOR THE COURT OF APPEALS TO
HOLD THAT THE UNITED STATES WAS A NECESSARY PARTY AND TO HAVE DISMISSED
THE BILL FOR THAT REASON.  THE GOVERNING PRINCIPLE WAS THUS FORMULATED
BY MR. CHIEF JUSTICE TAFT:    "THE BILL WAS SUITABLY FRAMED TO SECURE
THE RELIEF FROM AN ALLEGED CONSPIRACY OF THE DEFENDANTS WITHOUT LAWFUL
RIGHT TO TAKE AWAY FROM THE PLAINTIFF THE BOATS OF WHICH BY LEASE OR
CHARTER HE ALLEGED THAT HE HAD ACQUIRED THE LAWFUL POSSESSION AND
ENJOYMENT FOR A TERM OF FIVE YEARS.  HE WAS SEEKING EQUITABLE AID TO
AVOID A THREATENED TRESPASS UPON THAT PROPERTY BY PERSONS WHO WERE
GOVERNMENT OFFICERS.  IF IT WAS A TRESPASS, THEN THE OFFICERS OF THE
GOVERNMENT SHOULD BE RESTRAINED WHETHER THEY PROFESSED TO BE ACTING FOR
THE GOVERNMENT OR NOT.  NEITHER THEY NOR THE GOVERNMENT WHICH THEY
REPRESENT COULD TRESPASS UPON THE PROPERTY OF ANOTHER, AND IT IS WELL
SETTLED THAT THEY MAY BE STAYED IN THEIR UNLAWFUL PROCEEDING BY A COURT
OF COMPETENT JURISDICTION, EVEN THOUGH THE UNITED STATES FOR WHOM THEY
MAY PROFESS TO ACT IS NOT A PARTY AND CAN NOT BE MADE ONE.  BY REASON
OF THEIR ILLEGALITY, THEIR ACTS OR THREATENED ACTS ARE PERSONAL AND
DERIVE NO OFFICIAL JUSTIFICATION FROM THEIR DOING THEM IN ASSERTED
AGENCY FOR THE GOVERNMENT."  271 U.S. 536, 544. 

(C)  THIS LINE OF CASES, BEGINNING WITH UNITED STATES V. LEE, SUPRA,
106 U.S. 196, WAS AGAIN FOLLOWED IN ICKES V. FOX, 300 U.S. 82.  THERE A
BILL WAS SUSTAINED AGAINST THE DEFENDANT, THE SECRETARY OF THE
INTERIOR, BASED ON THE CLAIM THAT COMPLIANCE BY THE PLAINTIFF WITH THE
TERMS OF AN AGREEMENT MADE WITH A PREDECESSOR SECRETARY OF THE INTERIOR
RENDERED THE SECRETARY'S ACTION A TRESPASS AND AS SUCH ENJOINABLE,
THOUGH THE ACTION WAS JUSTIFIED AS A GOVERNMENTAL PREROGATIVE.  IN
REACHING THIS RESULT, THE COURT SPECIFICALLY REFERRED TO THE PRINCIPLES
FORMULATED IN GOLTRA V. WEEKS, ABOVE QUOTED. 

(D)  ONLY THE OTHER DAY THIS COURT DECIDED LAND V. DOLLAR, 330 U.S.
731.  THERE IT WAS RULED THAT A CLAIM BY THE PLAINTIFF FOR THE RECOVERY
OF THE POSSESSION OF PROPERTY PHYSICALLY CONTROLLED BY MEMBERS OF THE
UNITED STATES MARITIME COMMISSION BUT ALLEGED TO HAVE BEEN WRONGFULLY
WITHHELD WAS NOT INHERENTLY A SUIT AGAINST THE GOVERNMENT AND GAVE
JURISDICTION TO THE COURT "TO DETERMINE ITS JURISDICTION BY PROCEEDING
TO A DECISION ON THE MERITS" - THAT IS TO DETERMINE WHETHER THE
PLAINTIFFS' CLAIM THAT WITHHOLDING OF THE PLEDGED PROPERTY WAS, UNDER
THE CIRCUMSTANCES, TORTIOUS AND THEREFORE SUBJECT TO RELIEF AGAINST THE
AGENTS AS INDIVIDUALS.  330 U.S. AT 739.  THE COURT ONCE MORE APPLIED
THE PRINCIPLE OF UNITED STATES V. LEE, SUPRA, REINFORCED BY REFERENCE
TO THE CASES THAT APPLY THE LEE DOCTRINE, INCLUDING SLOAN SHIPYARDS
CORP. V. UNITED STATES FLEET CORP., SUPRA, GOLTRA V. WEEKS, SUPRA, AND
ICKES V. FOX, SUPRA.  IT ALSO POINTED OUT THAT THE FACT THAT THERE
EXISTED A REMEDY IN THE COURT OF CLAIMS AGAINST THE GOVERNMENT WAS
IRRELEVANT.  330 U.S. AT 738. 

IN EACH OF THESE CASES THIS COURT SANCTIONED A SUIT AGAINST AN
OFFICER OF THE GOVERNMENT MERELY BECAUSE THE OFFICER MISCONCEIVED THE
FACTS, OR MISAPPLIED THE LEGAL PRINCIPLES, ON WHICH RESTED THE
PLAINTIFF'S RIGHT "UNDER GENERAL LAW TO RECOVER POSSESSION OF SPECIFIC
PROPERTY WRONGFULLY WITHHELD."  LAND V. DOLLAR, SUPRA, 330 U.S. AT
736.  UNDER SUCH CIRCUMSTANCES AN OFFICER ACQUIRES NO IMMUNITY EVEN
THOUGH HE COMMITTED A TORT WHILE ATTEMPTING TO DISCHARGE WHAT WOULD BE
HIS DUTY IF HE WERE CORRECT ON HIS ASSUMPTION AS TO THE OWNERSHIP OF
THE PROPERTY OR AS TO THE RIGHT TO ITS POSSESSION UNDER THE LEGAL
INSTRUMENTS GOVERNING THE TRANSACTION.  SEE HOLMES, J., IN MILLER V.
HORTON, 152 MASS. 540, 26 N.E. 100; BELKNAP V. SCHILD, 161 U.S. 10, 18
19; HOPKINS V. CLEMSON AGRICULTURAL COLLEGE, 221 U.S. 636, 643-5; SLOAN
SHIPYARDS CORP. V. UNITED STATES FLEET CORP., 258 U.S. 549, 567.  IN
THIS CLASS OF CASES THE OFFICER CAN ESCAPE LIABILITY ONLY IF "SPECIAL
REMEDIES HAVE BEEN PROVIDED BY STATUTE THAT DISPLACE THOSE THAT
OTHERWISE WOULD BE AT THE PLAINTIFF'S COMMAND."  SLOAN SHIPYARDS CORP.
V. UNITED STATES FLEET CORP., SUPRA AT 567.  WHEN THERE IS SUCH A
SPECIAL REMEDY THE SUIT AGAINST THE OFFICER IS BARRED, NOT BECAUSE HE
ENJOYS THE IMMUNITY OF THE SOVEREIGN BUT BECAUSE THE SOVEREIGN CAN
CONSTITUTIONALLY CHANGE THE TRADITIONAL RULES OF LIABILITY FOR THE TORT
OF THE AGENT BY PROVIDING A FAIR SUBSTITUTE.  CROZIER V. FRIED, 224
U.S. 290; RICHMOND SCREW ANCHOR CO. V. UNITED STATES, 275 U.S. 331. 
BUT THE GENERAL STATUTE PERMITTING SUIT IN THE COURT OF CLAIMS IN
CERTAIN INSTANCES AGAINST THE GOVERNMENT IS NOT A STATUTE THAT PROVIDES
THAT REMEDIES OTHERWISE AT THE PLAINTIFF'S COMMAND ARE TO BE
DISPLACED.  FN12  A HOLDING THAT THE AVAILABILITY OF AN ACTION FOR
MONETARY DAMAGES IN THE COURT OF CLAIMS AGAINST THE UNITED STATES
PREVENTS A SUIT AT LAW, OR, IF THE NECESSARY REQUISITES FOR EQUITY
JURISDICTION ARE PRESENT, IN EQUITY, AGAINST THE GOVERNMENTAL AGENT,
WOULD BE AS NOVEL AS IT IS INDEFENSIBLE IN THE LIGHT OF THE SETTLED
COURSE OF DECISIONS.  INDEED, THIS ARGUMENT IS NOT NOVEL; IT HAS BEEN
EXPLICITLY NEGATIVED IN AT LEAST TWO CASES.  SEE SLOAN SHIPYARDS CORP.
V. UNITED STATES FLEET CORP., 258 U.S. 549, 567, 568; LAND V. DOLLAR,
330 U.S. 731, 738. 

"SOVEREIGN IMMUNITY" CARRIES AN AUGUST SOUND.  BUT VERY RECENTLY WE
RECOGNIZED THAT THE DOCTRINE IS IN "DISFAVOR."  FEDERAL HOUSING
ADMINISTRATION V. BURR, 309 U.S. 242, 245.  FN13  IT OUGHT NOT TO BE
EXTENDED BY DISCREDITING A LONG LINE OF DECISIONS.  NO CONSIDERATIONS
OF POLICY WARRANT THE OVERRULING OF UNITED STATES V. LEE, SUPRA, AND
THE CASES WHICH HAVE APPLIED IT IN GIVING A REMEDY FOR WRONGDOING
WITHOUT HARM TO ANY PUBLIC INTEREST THAT DESERVES PROTECTION.  TO
OVERRULE THE LEE CASE WOULD AT LEAST HAVE THE MERIT OF CANDOR.  TO
ATTEMPT TO EXPLAIN IT ON THE GROUND THAT THE GOVERNMENT ITSELF WAS NOT
SUABLE FOR THE WRONGDOING AT THE TIME OF THE LEE DECISION IS TO INVENT
A NEW THEORY TO EXPLAIN AWAY A DECISION WHICH HAS HELD ITS GROUND FOR
NEARLY SEVENTY YEARS. 

THIS LIABILITY FOR TORTS COMMITTED BY DEFENDANTS EVEN THOUGH THEY
CONCEIVE THEMSELVES TO BE ACTING AS OFFICIALS AND FOR THE PUBLIC GOOD,
RESTS ULTIMATELY ON THE CONVICTION THAT THE POLICY BEHIND THE IMMUNITY
OF THE SOVEREIGN FROM SUIT WITHOUT ITS CONSENT DOES NOT CALL FOR
DISREGARD OF A CITIZEN'S RIGHT TO PURSUE AN AGENT OF THE GOVERNMENT FOR
A WRONGFUL INVASION OF A RECOGNIZED LEGAL RIGHT UNLESS THE LEGISLATURE
DEEMS IT APPROPRIATE TO DISPLACE THE RIGHT OF SUING THE INDIVIDUAL
DEFENDANT WITH THE RIGHT TO SUE THE GOVERNMENT.  THE FACT THAT THE
GOVERNMENTAL AGENT CANNOT CLAIM THE IMMUNITY OF THE SOVEREIGN OF COURSE
DOES NOT SPELL LIABILITY, UNDER ALL CIRCUMSTANCES, FOR THE DISCHARGE OF
WHAT HE CONCEIVED TO BE HIS DUTY.  SEE, E.G., SEAVEY V. PREBLE, 64 ME.
120; FIELDS V. STOKLEY, 99 PA. 306; THE CONFLICTING CONSIDERATIONS ARE
PRESENTED IN MILLER V. HORTON, 152 MASS. 540, 26 N.E. 100.  SIMILARLY,
EQUITABLE CONSIDERATIONS BEARING ON THE PROPRIETY OF GRANTING THE
EXTRAORDINARY REMEDY OF AN INJUNCTION MAY HERE COME INTO PLAY, AS IS
TRUE WHENEVER A PRIVATE CLAIM CUTS ACROSS THE PUBLIC INTEREST.  FN14
BUT THESE ARE MATTERS WHOLLY BESIDE THE ISSUE OF SOVEREIGN IMMUNITY. 

OF COURSE WHERE THE UNITED STATES IS THE OWNER IN POSSESSION OF
PROPERTY A COURT CANNOT INTERFERE WITHOUT THE GOVERNMENT'S CONSENT. 
BUT IF IT IS TO BE DENIED THAT A COURT CAN DECIDE THE QUESTION, WHEN
PROPERLY PRESENTED, WHETHER PROPERTY HELD BY AN OFFICIAL BELONGS TO THE
PLAINTIFF, GOLTRA V. WEEKS, SLOAN SHIPYARDS CORP. V. UNITED STATES
FLEET CORP., ICKES V. FOX, LAND V. DOLLAR, AND THE OTHER CASES CITED IN
PART II, C OF THE APPENDIX, POST, P. 732, MUST BE OVERRULED. 

ONLY THE OTHER DAY WE SAID: 

"WHERE THE RIGHT TO POSSESSION OR ENJOYMENT OF PROPERTY UNDER GENERAL
LAW IS IN ISSUE, AND THE DEFENDANTS CLAIM AS OFFICERS OR AGENTS OF THE
SOVEREIGN, THE RULE OF UNITED STATES V. LEE, SUPRA, HAS BEEN REPEATEDLY
APPROVED  ...  IN UNITED STATES V. LEE, SUPRA, RECORD TITLE OF THE LAND
WAS IN THE UNITED STATES AND ITS OFFICERS WERE IN POSSESSION.  THE
FORCE OF THE DECREE IN THAT CASE WAS TO GRANT POSSESSION TO THE PRIVATE
CLAIMANT.  THOUGH THE JUDGMENT WAS NOT RES JUDICATA AGAINST THE UNITED
STATES,  ...  IT SETTLED AS BETWEEN THE PARTIES THE CONTROVERSY OVER
POSSESSION.  PRECISELY THE SAME WILL BE TRUE HERE, IF WE ASSUME THE
ALLEGATIONS OF THE COMPLAINT ARE PROVED."  LAND V. DOLLAR, SUPRA, P.
737.  WHEN A PLEADING RAISES A SUBSTANTIAL CLAIM THAT THE DEFENDANT IS
WRONGFULLY WITHHOLDING FROM THE PLAINTIFF PROPERTY BELONGING TO HIM,
THE DEFENDANT HAS NOT HERETOFORE BEEN PERMITTED TO SHIELD HIMSELF
BEHIND THE IMMUNITY OF THE SOVEREIGN.  ONLY AFTER THE PRELIMINARY
QUESTION OF OWNERSHIP IS DECIDED AGAINST THE PLAINTIFF DOES THE CLAIM
OF SOVEREIGN IMMUNITY COME INTO PLAY.  ONLY THEN CAN IT BE SAID THAT
THE DECREE WILL AFFECT PROPERTY OF THE SOVEREIGN. 

THE COURT TRIES TO EXPLAIN AWAY LAND V. DOLLAR, SUPRA, BY SUGGESTING
THAT IT WAS A CASE WHERE THE OFFICERS ACTED IN EXCESS OF THEIR
AUTHORITY, ALTHOUGH THE OPINION IN THAT CASE MAKES CLEAR THAT, EVEN IF
THE OFFICERS HAD AUTHORITY, THERE STILL REMAINED THE ISSUE WHETHER THE
SHARES OF STOCK WERE SOLD OR PLEDGED TO THE UNITED STATES.  IF THE
LATTER, TO HOLD AFTER SATISFACTION OF THE PLEDGE WOULD BE TORTIOUS, AND
THE STOCK COULD BE RECOVERED IN THE SUIT AGAINST THE DEFENDANTS.  THE
COURT SEEKS TO AVOID THE DECISION IN ICKES V. FOX, SUPRA, BY SAYING
THAT THE GROUND OF DECISION IS NOT MADE CLEAR.  BUT NOT EVEN THESE MOST
DUBIOUS ARGUMENTS CAN EXPLAIN AWAY GOLTRA V. WEEKS, 271 U.S. 536. 
ACCORDINGLY, THE COURT IMPLIEDLY OVERRULES THAT DECISION.  NO REASON OF
POLICY IS VOUCHSAFED FOR OVERRULING A DECISION THAT CARRIES THE
AUTHORITY THAT THE GOLTRA CASE DOES.  IT WAS BASED ON A LONG SERIES OF
PRIOR CASES, IT WAS DECIDED BY A UNANIMOUS COURT AND DELIVERED BY A
CHIEF JUSTICE WHO BROUGHT TO THE COURT FROM HIS PRESIDENTIAL EXPERIENCE
A PARTIALITY TOWARD FREEDOM FOR EXECUTIVE ACTION, AS EVINCED BY HIS
OPINION IN THE CONTEMPORANEOUS CASE OF MYERS V. UNITED STATES, 272 U.S.
52.  THE GOLTRA CASE HAS SINCE BEEN FREQUENTLY, AND ALWAYS APPROVINGLY,
CITED, MOST RECENTLY IN LAND V. DOLLAR, SUPRA, AS AN APPLICATION OF THE
LEE DOCTRINE.  SEE ALSO ICKES V. FOX, 300 U.S. 82, 97.  THE GOLTRA CASE
IS NOW THROWN INTO THE DISCARD BECAUSE IT DID NOT CITE GOLDBERG V.
DANIELS, 231 U.S. 218.  THAT EARLIER CASE IS DEEMED IN CONFLICT WITH
THE LATER GOLTRA DECISION AND THEREFORE THE LATER CASE, SO WE ARE TOLD,
MUST YIELD TO THE EARLIER CASE.  ONE WOULD SUPPOSE THAT THE FAILURE OF
A FULL-DRESS OPINION IN A LATER CASE, WHICH WAS THOROUGHLY ARGUED AND
NOT HASTILY DECIDED, TO CITE AN EARLIER OPINION WOULD NOT BE ATTRIBUTED
EITHER TO THE COURT'S UNAWARENESS OF THE EARLIER OPINION OR ITS SILENT
OVERRULING OF IT.  THAT THE COURT COULD NOT HAVE BEEN UNAWARE OF THE
DECISION IN THE GOLDBERG CASE IS INCONTESTABLY PROVED BY THE FACT THAT
IT WAS REFERRED TO IN THE BRIEFS IN THE GOLTRA CASE.  THAT THERE WAS
NOT OBVIOUS INCONSISTENCY BETWEEN THE TWO DECISIONS IS INDICATED BY THE
FACT THAT MR. JUSTICE HOLMES, WHO WROTE THE GOLDBERG OPINION, JOINED IN
THE GOLTRA OPINION.  IT IS TOO MUCH TO ASSUME THAT THERE WAS CONCERTED
SILENCE ABOUT THE GOLDBERG DECISION BY THE COURT IN GOLTRA. 

A MORE OBVIOUS EXPLANATION LIES ON THE SURFACE.  GOLDBERG WAS NOT
CITED IN GOLTRA FOR THE CONCLUSIVE REASON THAT GOLDBERG HAD NOTHING TO
DO WITH GOLTRA.  IN THE GOLDBERG CASE THE COURT, ON THE BASIS OF THE
PLEADINGS BEFORE IT, WAS DEALING WITH A SUIT WHERE "THE UNITED STATES
IS THE OWNER IN POSSESSION OF THE VESSEL."  231 U.S. 218, 221-222. 
ACCORDINGLY, THE SUIT WAS NOT FOR A TORTIOUS WITHHOLDING OF THE
PLAINTIFF'S PROPERTY AND THE GOVERNMENT'S IMMUNITY BARRED SUIT.  IN
GOLTRA, ON THE CONTRARY, THE CLAIM WAS FOR THE DELIVERY OF PROPERTY
ALLEGEDLY BELONGING TO THE PLAINTIFF AND TORTIOUSLY IN POSSESSION OF
THE INDIVIDUAL DEFENDANTS, AND THE COURT HELD THAT THE PLAINTIFF IS
ENTITLED TO ESTABLISH SUCH A CLAIM AS HE CAN, "EVEN THOUGH THE UNITED
STATES FOR WHOM THEY (THE DEFENDANTS) MAY PROFESS TO ACT IS NOT A PARTY
AND CAN NOT BE MADE ONE."  271 U.S. AT 544.  THAT IS THIS CASE. 

AS IS TRUE OF THE PRESENT CASE, THE RIGHT OF CONTROL OVER PROPERTY
MAY DEPEND ON COMPLIANCE WITH THE TERMS OF A CONTRACT.  THE FACT OF
COMPLIANCE MAY REST, CERTAINLY IN THE FIRST INSTANCE, IN THE JUDGMENT
OF A PARTICULAR OFFICIAL.  BUT THAT WOULD NOT AUTHORIZE HIM TO RESCIND
A VALID CONTRACT IF THERE HAD BEEN FULL COMPLIANCE.  OF COURSE, EVEN
THAT POWER MAY BE CONFERRED BY AGREEMENT OR BY STATUTE.  BUT IN THE
ABSENCE OF SUCH AN AGREEMENT, OR SUCH A PROVISION IN A STATUTE, A
PLAINTIFF MAY HAVE REDRESS AGAINST A DEFENDANT WHO HAS WRONGFULLY
RESCINDED A VALID CONTRACT FULLY PERFORMED IF A PROPERTY RIGHT OF THE
PLAINTIFF IS THEREBY TORTIOUSLY AFFECTED.  HE MAY ALSO HAVE HIS DAY IN
COURT IF HE DENIES THE RIGHT OF AN OFFICIAL TO DETERMINE DEFINITIVELY
WANT OF COMPLIANCE, WHEN THE ISSUE OF COMPLIANCE IS DECISIVE OF THE
DEFENDANT'S ALLEGED WRONG-DOING.  AND THESE ARE PRECISELY THE ISSUES
TENDERED BY THIS COMPLAINT.  IT IS NO ANSWER AT THIS STAGE OF THE CASE,
TO SAY THAT IT WAS IN FACT WITHIN THE AGENT'S AUTHORITY TO DO WHAT HE
DID.  IF A VALID STATUTE GIVES HIM POWER TO WITHHOLD PROPERTY WHICH
BELONGS TO ANOTHER, OR IF HE HAS THE POWER TO REVEST TITLE IN THE
GOVERNMENT AFTER A VALID CONTRACT HAS VESTED IT IN ANOTHER, THEN OF
COURSE HE IS FREE FROM LIABILITY.  BUT THESE ARE MATTERS THAT GO TO THE
MERITS.  THE VERY PURPOSE OF THIS SUIT IS TO DETERMINE WHETHER WHAT THE
GOVERNMENTAL AGENT DID HERE WAS WITHIN HIS POWER.  TO DECIDE WHETHER
THE "AUTHORITY IS RIGHTFULLY ASSUMED IS THE EXERCISE OF JURISDICTION,
AND MUST LEAD TO THE DECISION OF THE MERITS OF THE QUESTION."  UNITED
STATES V. LEE, 106 U.S. 196, 219.  THE ISSUES OUTLINED ABOVE ARE ISSUES
WHICH MAY BE CONTESTED AGAINST A DEFENDANT, EVEN THOUGH HE HOLD
OFFICE.  NOBLE V. UNION RIVER LOGGING R. CO., 147 U.S. 165; PAYNE V.
CENTRAL PACIFIC R. CO., 255 U.S. 228; SANTA FE PACIFIC R. CO. V. FALL,
259 U.S. 197; LAND V. DOLLAR, 330 U.S. 731.    THE DISTRICT COURT
THEREFORE HAD JURISDICTION OVER THE CONTROVERSY BECAUSE ONLY AFTER A
CONSIDERATION OF THE MERITS OF THE RESPONDENT'S CLAIM COULD IT BE
DETERMINED WHETHER THE DECREE WOULD AFFECT GOVERNMENT PROPERTY.  SINCE
THAT COURT HAS JURISDICTION IT CAN ALSO DETERMINE WHETHER A CAUSE OF
ACTION WAS STATED AND WHETHER THERE ARE ANY CONSIDERATIONS WHICH WOULD
CAUSE A COURT OF EQUITY NOT TO GRANT THE RELIEF REQUESTED. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

            APPENDIX. 

CASES SINCE OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738(1824),
CONCERNING SUITS AGAINST GOVERNMENTAL AGENTS IN WHICH DEFENSE OF
SOVEREIGN IMMUNITY WAS RAISED. 

I. CASES IN WHICH JURISDICTION WAS FOUND WANTING. 

A. PLAINTIFF SOUGHT INTEREST IN PROPERTY WHICH CONCEDEDLY BELONGED TO
THE GOVERNMENT, OR DEMANDED RELIEF CALLING FOR AN ASSERTION OF WHAT WAS
UNQUESTIONABLY OFFICIAL AUTHORITY. 

GOVERNOR OF GEORGIA V. MADRAZO, 1 PET. 110(1828); LOUISIANA V. JUMEL,
107 U.S. 711; CUNNINGHAM V. MACON & BRUNSWICK R. CO., 109 U.S. 446;
HAGOOD V. SOUTHERN, 117 U.S. 52; CHRISTIAN V. ATLANTIC & N.C.R. CO.,
133 U.S. 233; NORTH CAROLINA V. TEMPLE, 134 U.S. 22; NEW YORK GUARANTY
& INDEMNITY CO. V. STEELE, 134 U.S. 230; BELKNAP V. SCHILD, 161 U.S.
10; OREGON V. HITCHCOCK, 202 U.S. 60; LOUISIANA V. GARFIELD, 211 U.S.
70; MURRAY V. WILSON CO., 213 U.S. 151; HOPKINS V. CLEMSON AGRICULTURAL
COLLEGE, 221 U.S. 636; GOLDBERG V. DANIELS, 231 U.S. 218; LOUISIANA V.
MCADOO, 234 U.S. 627; LANKFORD V. PLATTE IRON WORKS, 235 U.S. 461;
WELLS V. ROPER, 246 U.S. 335; MORRISON V. WORK, 266 U.S. 481; MINNESOTA
V. UNITED STATES, 305 U.S. 382. 

B. DECISIONS COUCHED IN TERMS OF SOVEREIGN IMMUNITY OR LATER SO
INTERPRETED BUT WHICH ACTUALLY TURNED ON OTHER CONSIDERATIONS. 

1.  NO LEGALLY PROTECTED INTEREST OF THE PLAINTIFF WAS AFFECTED. 

LOUISIANA V. MCADOO, 234 U.S. 627; TENNESSEE ELECTRIC POWER CO. V.
TENNESSEE VALLEY AUTHORITY, 306 U.S. 118. 

2.  THE PARTICULAR DEFENDANT WAS UNRELATED TO THE PLAINTIFF'S CLAIM
BECAUSE HE WAS NOT THREATENING PLAINTIFF'S INTEREST. 

IN RE AYERS, 123 U.S. 443; FITTS V. MCGHEE, 172 U.S. 516; WORCESTER
COUNTY TRUST CO. V. RILEY, 302 U.S. 292; MINE SAFETY APPLIANCES CO. V.
FORRESTAL, 326 U.S. 371(ALTERNATIVE REASON). 

3.  NATURE OF THE ADJUDICATION REQUIRED PRESENCE OF THE SOVEREIGN AS
A NECESSARY PARTY. 

CHRISTIAN V. ATLANTIC & NORTH CAROLINA R. CO., 133 U.S. 233; STANLEY
V. SCHWALBY, 162 U.S. 255; NEW MEXICO V. LANE, 243 U.S. 52. 

4.  CASE DISMISSED FOR WANT OF ORDINARY REQUIREMENTS OF EQUITY
JURISDICTION. 

HAWKS V. HAMILL, 288 U.S. 52; MORRISON V. WORK, 266 U.S.
481(ALTERNATIVE GROUND). 

C. CASES IN WHICH LEGISLATION SPECIFICALLY PROVIDED THAT ONLY THE
SOVEREIGN ITSELF COULD BE SUED FOR ACTION AUTHORIZED BY STATUTE. 

CROZIER V. FRIED, KRUPP AKTIENGESELLSCHAFT, 224 U.S. 290; RICHMOND
SCREW ANCHOR CO. V. UNITED STATES, 275 U.S. 331. 

D. CASES IN WHICH THE PLAINTIFF PURSUED A STATUTORY PROCEDURE
INDICATING CONSENT TO SUIT AGAINST THE SOVEREIGN AND IS THEREFORE BOUND
BY ITS LIMITATIONS. 

SMITH V. REEVES, 178 U.S. 436; GREAT NORTHERN LIFE INS. CO. V. READ,
322 U.S. 47; FORD MOTOR CO. V. DEPARTMENT OF TREASURY OF INDIANA, 323
U.S. 459; KENNECOTT COPPER CORP. V. STATE TAX COMM'N, 327 U.S. 573. 

II.  CASES IN WHICH JURISDICTION WAS ENTERTAINED. 

A. CASES IN WHICH AN OFFICIAL JUSTIFIED HIS ACTION UNDER AN
UNCONSTITUTIONAL STATUTE. 

OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738(1824); BOARD OF
LIQUIDATION V. MCCOMB, 92 U.S. 531; POINDEXTER V. GREENHOW, 114 U.S.
270; WHITE V. GREENHOW, 114 U.S. 307; CHAFFIN V. TAYLOR, 114 U.S. 309;
ALLEN V. BALTIMORE & O.R. CO., 114 U.S. 311; PENNOYER V. MCCONNAUGHY,
140 U.S. 1; IN RE TYLER, 149 U.S. 164; REAGAN V. FARMERS' LOAN & TRUST
CO., 154 U.S. 362; SCOTT V. DONALD, 165 U.S. 58; SCOTT V. DONALD, 165
U.S. 107; SMYTH V. AMES, 169 U.S. 466; PROUT V. STARR, 188 U.S. 537;
MISSISSIPPI R. COMM'N V. ILLINOIS C.R. CO., 203 U.S. 335; EX PARTE
YOUNG, 209 U.S. 123; GENERAL OIL CO. V. CRAIN, 209 U.S. 211; LUDWIG V.
WESTERN UNION TELEGRAPH CO., 216 U.S. 146; WESTERN UNION TELEGRAPH CO.
V. ANDREWS, 216 U.S. 165; HERNDON V. CHICAGO, R.I. & PAC. R. CO., 218
U.S. 135; TRUAX V. RAICH, 239 U.S. 33; TANNER V. LITTLE, 240 U.S. 369;
GREENE V. LOUISVILLE & I.R. CO., 244 U.S. 499; PUBLIC SERVICE CO. V.
CORBOY, 250 U.S. 153; STERLING V. CONSTANTIN, 287 U.S. 378; RICKERT
RICE MILLS V. FONTENOT, 297 U.S. 110. 

B. CASES IN WHICH AN OFFICER EXCEEDED HIS STATUTORY AUTHORITY. 

ROLSTON V. MISSOURI FUND COMMISSIONERS, 120 U.S. 390; SCULLY V. BIRD,
209 U.S. 481; ATCHISON, T. & S.F.R. CO. V. O'CONNOR, 223 U.S. 280;
PHILADELPHIA CO. V. STIMSON, 223 U.S. 605; WAITE V. MACY, 246 U.S. 606;
PAYNE V. CENTRAL PAC. R. CO., 255 U.S. 228; SANTA FE PAC. R. CO. V.
FALL, 259 U.S. 197; WORK V. LOUISIANA, 269 U.S. 250. 

C. CASES IN WHICH AN OFFICER SOUGHT SHELTER BEHIND STATUTORY
AUTHORITY OR SOME OTHER SOVEREIGN COMMAND FOR THE COMMISSION OF A
COMMON-LAW TORT. 

1.  CASES IN WHICH AN OFFICER WAS NOT RELIEVED OF LIABILITY FOR TORT
MERELY BECAUSE HE WAS ACTING FOR THE SOVEREIGN. 

STANLEY V. SCHWALBY, 147 U.S. 508; SCRANTON V. WHEELER, 179 U.S. 141;
SLOAN SHIPYARDS CORP. V. UNITED STATES FLEET CORP., 258 U.S. 549;
GOLTRA V. WEEKS, 271 U.S. 536; ICKES V. FOX, 300 U.S. 82; LAND V.
DOLLAR, 330 U.S. 731. 

2.  CASES IN WHICH AN OFFICER WAS HELD LIABLE FOR A COMMON-LAW TORT,
BUT THE OPINION MADE REFERENCE TO A SITUATION INVOLVING AN
UNCONSTITUTIONAL TAKING. 

UNITED STATES V. LEE, 106 U.S. 196; NOBLE V. UNION RIVER LOGGING R.
CO., 147 U.S. 165; SOUTH CAROLINA V. WESLEY, 155 U.S. 542; TINDAL V.
WESLEY, 167 U.S. 204; HOPKINS V. CLEMSON AGRICULTURAL COLLEGE, 221 U.S.
636. 

FN1  THE PRAYER FOR RELIEF IN THE COMPLAINT IS AS FOLLOWS: 

"(1)  THAT THIS COURT ISSUE ITS TEMPORARY RESTRAINING ORDER AGAINST
THE DEFENDANT, HIS AGENTS, ASSISTANTS, DEPUTIES AND EMPLOYEES AND ALL
PERSONS ACTING OR ASSUMING TO ACT UNDER THEIR DIRECTION, ENJOINING AND
RESTRAINING THEM FROM: 

"(A)  CARRYING INTO EFFECT THE PURPORTED ILLEGAL AND UNAUTHORIZED
CONCELLATION OF THE SALE TO THE PLAINTIFF OF THIS COAL. 

"(B)  RESELLING OR ATTEMPTING TO RESELL THIS COAL TO ANY OTHER PERSON
WHATSOEVER THAN THE PLAINTIFF, THE LEGAL OWNER THEREOF. 

"(C)  DELIVERING ANY OR ALL OF THIS COAL TO ANY OTHER PERSON. 

"(2)  THAT UPON HEARING OF MOTION FOR A PRELIMINARY INJUNCTION THAT
THIS COURT CONTINUE THE TEMPORARY RESTRAINING ORDER AS A PRELIMINARY
INJUNCTION. 

"(3)  THAT UPON FINAL HEARING THIS COURT MAKE PERMANENT THE
PRELIMINARY INJUNCTION. 

"(4)  THAT UPON HEARING OF THIS CAUSE THE COURT DECREES THAT: 

"(A)  THE SALE OF THIS COAL TO THE PLAINTIFF BY LETTER OF WAR  ASSETS
ADMINISTRATION, DATED MARCH 19, 1947, IS STILL VALID AND IN EFFECT. 

"(B)  THAT THE PURPORTED SALE TO THE MIDLAND COAL COMPANY IS ILLEGAL,
BECAUSE TITLE TO THIS COAL IS IN THE PLAINTIFF. 

"(C)  THAT, IN VIEW OF THE DELAY AND DISRUPTION OF ARRANGEMENTS
CAUSED BY THE PURPORTED CANCELLATION, PLAINTIFF SHALL HAVE THIRTY DAYS
FROM THE DATE OF THIS COURT'S FINAL ORDER IN WHICH TO GIVE SHIPPING
INSTRUCTIONS. 

"(D)  THAT THE PLAINTIFF MAY HAVE SUCH OTHER FURTHER AND DIFFERENT
RELIEF AS MAY TO THE COURT SEEM PROPER AND JUST IN THE PREMISES." 

FN2  E.G., GOVERNOR OF GEORGIA V. MADRAZO, 1 PET. 110(1828);
LOUISIANA V. JUMEL, 107 U.S. 711; CUNNINGHAM V. MACON & BRUNSWICK R.
CO., 109 U.S. 446; HAGOOD V. SOUTHERN, 117 U.S. 52; CHRISTIAN V.
ATLANTIC & NORTH CAROLINA R. CO., 133 U.S. 233; NORTH CAROLINA V.
TEMPLE, 134 U.S. 22; NEW YORK GUARANTY & INDEMNITY CO. V. STEELE, 134
U.S. 230; BELKNAP V. SCHILD, 161 U.S. 10; OREGON V. HITCHCOCK, 202 U.S.
60; MURRAY V. WILSON CO., 213 U.S. 151; HOPKINS V. CLEMSON AGRICULTURAL
COLLEGE, 221 U.S. 636; LOUISIANA V. MCADOO, 234 U.S. 627; LANKFORD V.
PLATTE IRON WORKS, 235 U.S. 461; WELLS V. ROPER, 246 U.S. 335; MORRISON
V. WORK, 266 U.S. 481; SEE LAND V. DOLLAR, 330 U.S. 731, 737-738. 

FN3  E.G., OSBORN V. BANK OF THE UNITED STATES, 9 WHEAT.  738(1824);
BOARD OF LIQUIDATION V. MCCOMB, 92 U.S. 531; POINDEXTER V. GREENHOW,
114 U.S. 270; WHITE V. GREENHOW, 114 U.S. 307; CHAFFIN V. TAYLOR, 114
U.S. 309; ALLEN V. BALTIMORE & O.R. CO., 114 U.S. 311; PENNOYER V.
MCCONNAUGHY, 140 U.S. 1; REAGAN V. FARMERS' LOAN & TRUST CO., 154 U.S.
362; SMYTH V. AMES, 169 U.S. 466; MISSISSIPPI R. COMM'N V. ILLINOIS
C.R. CO., 203 U.S. 335; EX PARTE YOUNG, 209 U.S. 123; RICKERT RICE
MILLS V. FONTENOT, 297 U.S. 110. 

FN4  E.G., SCULLY V. BIRD, 209 U.S. 481; ATCHISON, T. & S.F.R. CO. V.
O'CONNOR, 223 U.S. 280; PHILADELPHIA CO. V. STIMSON, 223 U.S. 605;
WAITE V. MACY, 246 U.S. 606; SANTA FE PAC. R. CO. V. FALL, 259 U.S.
197; WORK V. LOUISIANA, 269 U.S. 250. 

FN5  E.G., UNITED STATES V. LEE, 106 U.S. 196; SOUTH CAROLINA V.
WESLEY, 155 U.S. 542; TINDAL V. WESLEY, 167 U.S. 204; HOPKINS V.
CLEMSON AGRICULTURAL COLLEGE, 221 U.S. 636; SLOAN SHIPYARDS CORP. V.
UNITED STATES FLEET CORP., 258 U.S. 549; GOLTRA V. WEEKS, 271 U.S. 536;
ICKES V. FOX, 300 U.S. 82; LAND V. DOLLAR, 330 U.S. 731.  IN FOUR CASES
BEFORE THE LEE CASE, SUIT WAS PERMITTED AGAINST THE GOVERNMENTAL AGENT
FOR TRESPASS TO PROPERTY UNDER THE CLAIM THAT IT WAS OWNED BY THE
GOVERNMENT WITHOUT ANY DISCUSSION THAT A QUESTION OF SOVEREIGN IMMUNITY
MIGHT BE INVOLVED.  MEIGS V. M'CLUNG'S LESSEE, 9 CRANCH 11(1815);
WILCOX V. JACKSON, 13 PET. 498(1839); BROWN V. HUGER, 21 HOW. 
305(1858); GRISAR V. MCDOWELL, 6 WALL.  363(1867).  AND WHERE THE
SOVEREIGN IMMUNITY ARGUMENT WAS RAISED, IT WAS DISMISSED WITH "IT
CERTAINLY CAN NEVER BE ALLEGED, THAT A MERE SUGGESTION OF TITLE IN A
STATE TO PROPERTY, IN POSSESSION OF AN INDIVIDUAL, MUST ARREST THE
PROCEEDINGS OF THE COURT, AND PREVENT THEIR LOOKING INTO THE
SUGGESTION, AND EXAMINING THE VALIDITY OF THE TITLE."  UNITED STATES V.
PETERS, 5 CRANCH 115, 139-40(1809); SEE ALSO THE DAVIS, 10 WALL. 
15(1869). 

FN6  SEE FITTS V. MCGHEE, 172 U.S. 516; SEE BLOCK, SUITS AGAINST
GOVERNMENT OFFICERS AND THE SOVEREIGN IMMUNITY DOCTRINE, 59 HARV. L.
REV. 1060, 1078, 1082(1946). 

FN7  LOUISIANA V. MCADOO, 234 U.S. 627; IN RE AYERS, 123 U.S. 443. 

FN8  HAWKS V. HAMILL, 288 U.S. 52; MORRISON V. WORK, 266 U.S. 481. 

FN9  FITTS V. MCGHEE, 172 U.S. 516; WORCESTER COUNTY TRUST CO. V.
RILEY, 302 U.S. 292. 

FN10  THE PRINCIPLE OF THE LEE CASE CANNOT BE EXPLAINED AWAY BY
SUGGESTING THAT AT THE TIME IT WAS DECIDED RECOVERY COULD NOT BE HAD
AGAINST THE UNITED STATES IN THE COURT OF CLAIMS FOR THE MISCONDUCT OF
THE GOVERNMENTAL AGENT IN SEIZING THE LEE ESTATE.  THE SHORT AND
CONCLUSIVE ANSWER IS THAT RECOVERY AGAINST THE UNITED STATES COULD NOT
BE HAD TODAY UNLESS A WHOLE SERIES OF CASES IS TO BE OVERRULED.  SEE,
E.G., TEMPEL V. UNITED STATES, 248 U.S. 121, 130, AND THE CASES CITED
THEREIN; RUSSELL V. UNITED STATES, 182 U.S. 516, 535; HARLEY V. UNITED
STATES, 198 U.S. 229, 235; HILL V. UNITED STATES, 149 U.S. 593; UNITED
STATES V. NORTH AMERICAN TRANS.  & TRADING CO., 253 U.S. 330, 335;
JURAGUA IRON CO. V. UNITED STATES, 212 U.S. 297.  AND THERE IS NOTHING
IN THE FEDERAL TORTS CLAIM ACT WHICH WOULD INDICATE THAT UNDER ITS
PROVISION SUIT COULD BE BROUGHT.  28 U.S.C. SEC. 2680(A). 

FN11  THIS CASE IS CLEARLY APPOSITE TO THE QUESTION WHETHER IN A SUIT
AGAINST AN AGENT THE DEFENSE OF SOVEREIGN IMMUNITY IS APPLICABLE.  TO
TAKE AWAY THE IMMUNITY OF A GOVERNMENTAL CORPORATION MERELY PREVENTS
THE CORPORATION FROM CLAIMING THAT IT IS IMMUNIZED FROM SUIT.  BUT A
SUIT WILL STILL NOT LIE IF A DECREE WILL AFFECT THE GOVERNMENT'S,
RATHER THAN THE CORPORATION'S, PROPERTY. 

FN12  WHEN CONGRESS HAS WISHED TO DISPLACE THE ORDINARY REMEDIES
AGAINST THE AGENT, IT HAS USED EXPLICIT LANGUAGE TO DO SO.  SEE, E.G.,
56 STAT. 1013, 35 U.S.C. SECS. 89-96; 36 STAT. 851, AS AMENDED, 40
STAT. 705, 35 U.S.C. SEC. 68.  IT IS OF COURSE NOT A DENIAL OF DUE
PROCESS TO MAKE THE REMEDY, EVEN FOR UNCONSTITUTIONAL ACTION OF THE
AGENTS WHO DO THE GOVERNMENT'S WORK, SOLELY AGAINST THE GOVERNMENT
INSTEAD OF THE AGENT WHO COMMITTED THE WRONG.  CF. COFFMAN V. FEDERAL
LABORATORIES, INC., 171 F.2D 94(C.A. 3D CIR.); RICHMOND SCREW ANCHOR
CO. V. UNITED STATES, 275 U.S. 331; CROZIER V. FRIED, 224 U.S. 290.  IT
IS UPON SUCH CASES, INTERPRETING SPECIFIC PROVISIONS, STATING THAT
RELIEF SHOULD BE ONLY AGAINST THE GOVERNMENT, THAT THE COURT RELIED IN
YEARSLEY V. ROSS CONSTRUCTION CO., 309 U.S. 18.  THAT CASE IS BASED ON
THE RICHMOND SCREW ANCHOR CO. CASE AND THE CROZIER CASE AND IS TO BE
UNDERSTOOD IN THE LIGHT OF THEM.  IN THE YEARSLEY CASE SUIT WAS BROUGHT
AGAINST A GOVERNMENTAL AGENT WHO HAD TAKEN LAND UNDER A STATUTE WHICH
AUTHORIZED THE TAKING OF THAT PARTICULAR LAND.  IMPLIEDLY THE OWNER WAS
TO BE COMPENSATED FOR IT IN THE COURT OF CLAIMS.  THE COURT HELD THAT
IN AN AUTHORIZED TAKING THERE IS NO LIABILITY ON THE PART OF THE
GOVERNMENT'S REPRESENTATIVES WHO DO THE TAKING.  THE FACT THAT THERE
WAS ENTIRE COMPENSATION PROVIDED FOR EMPHASIZED THE EXCLUSIVE CHARACTER
OF THE REMEDY AGAINST THE GOVERNMENT.  IN OTHER WORDS THE COURT WAS
DEALING WITH A SITUATION LIKE THE ONE INVOLVED IN THE RICHMOND SCREW
ANCHOR CO. CASE.  THUS THE YEARSLEY CASE DOES NOT TOUCH THE CASES
DECIDED, BEFORE AND SINCE THAT DECISION, ON THE BASIS OF THE LEE LINE
OF CASES.  MOREOVER, IN THIS CASE PETITIONER ALLEGES THAT THERE WAS NO
AUTHORITY ON THE PART OF THE DEFENDANT TO RESCIND THE CONTRACT.  THIS
COURT HAS EXPLICITLY REJECTED THE THEORY THAT THE GOVERNMENT COULD BE
SUED FOR A TORT IN SUCH CIRCUMSTANCES.  TEMPEL V. UNITED STATES, 248
U.S. 121, 129, AND CASES CITED; SEE ALSO 28 U.S.C. SEC. 2680(A). 
FN13  "WHETHER THIS IMMUNITY IS AN ABSOLUTE SURVIVAL OF THE MONARCHIAL
PRIVILEGE, OR IS A MANIFESTATION MERELY OF POWER, OR RESTS ON ABSTRACT
LOGICAL GROUNDS, SEE KAWANANAKOA V. POLYBLANK, 205 U.S. 349, IT
UNDOUBTEDLY RUNS COUNTER TO MODERN DEMOCRATIC NOTIONS OF THE MORAL
RESPONSIBILITY OF THE STATE.  ACCORDINGLY, COURTS REFLECT A STRONG
LEGISLATIVE MOMENTUM IN THEIR TENDENCY TO EXTEND THE LEGAL
RESPONSIBILITY OF GOVERNMENT AND TO CONFIRM MAITLAND'S BELIEF,
EXPRESSED NEARLY FIFTY YEARS AGO, THAT 'IT IS A WHOLESOME SIGHT TO SEE
"THE CROWN" SUED AND ANSWERING FOR ITS TORTS.'  3 MAITLAND, COLLECTED
PAPERS, 263."  GREAT NORTHERN LIFE INS. CO. V. READ, 322 U.S. 47, 57,
59(DISSENTING OPINION).  SEE ALSO KENNECOTT COPPER CORP. V. STATE TAX
COMM'N, 327 U.S. 573, 580, 582(DISSENTING OPINION). 

FN14  OF COURSE IF CONTROL IS SOUGHT OVER PROPERTY WHICH THE
GOVERNMENT SEEKS TO RETAIN, THE CONSIDERATIONS AS TO WHETHER THE
EQUITABLE RELIEF SHOULD BE GRANTED MIGHT BE DIFFERENT.  CF. LOUISIANA
V. GARFIELD, 211 U.S. 70; GOLDBERG V. DANIELS, 231 U.S. 218.  HERE,
HOWEVER, THAT QUESTION IS NOT INVOLVED, SINCE THE COAL TO WHICH THE
PLAINTIFF ASSERTS TITLE IS, ACCORDING TO THE COMPLAINT, TO BE SOLD TO
ANOTHER DEALER.  AS BETWEEN THE TWO, THE PLAINTIFF, IF IT BE A FACT
THAT HE HAS FULLY COMPLIED WITH THE CONTRACT, IS ENTITLED TO THE
PROPERTY.  THE THREATENED TRANSFER OF PROPERTY WRONGFULLY WITHHELD FROM
THE PLAINTIFF MAY BE ENJOINED IF THE CONVENTIONAL REQUIREMENTS OF
EQUITABLE RELIEF ARE PRESENT. 
..END :


















COMMISSIONER V. CULBERTSON, 337 U.S. 733 


NO. 313.  ARGUED FEBRUARY 7, 1949.  - DECIDED JUNE 27, 1949.  - 168 F.2D
979, REVERSED. 


RESPONDENT TAXPAYER, ENGAGED IN THE BUSINESS OF BREEDING AND SELLING
CATTLE, FORMED A FAMILY PARTNERSHIP WITH HIS FOUR SONS, TO WHOM HE SOLD
AN UNDIVIDED ONE-HALF INTEREST IN THE BUSINESS, TAKING THEIR PROMISSORY
NOTE THEREFOR.  THE NOTE WAS PAID BY PROCEEDS FROM THE BUSINESS AND BY
GIFTS FROM RESPONDENT.  THE ELDEST SON WAS, BEFORE AND AFTER THE
FORMATION OF THE PARTNERSHIP, FOREMAN OF THE RANCH AND RECEIVED
COMPENSATION AS SUCH.  IN 1940, THE FIRST YEAR DURING WHICH THE
PARTNERSHIP OPERATED, THE SECOND SON FINISHED COLLEGE AND WENT INTO THE
ARMY.  THE TWO YOUNGER SONS WENT TO SCHOOL IN THE WINTER AND WORKED ON
THE RANCH IN THE SUMMER.  FOR THE TAXABLE YEARS 1940 AND 1941, THE TAX
COURT HELD THAT THE ENTIRE INCOME OF THE BUSINESS WAS TAXABLE TO
RESPONDENT, ON THE GROUND THAT THE SONS HAD NOT CONTRIBUTED TO THE
PARTNERSHIP ANY CAPITAL ORIGINATING WITH THEM NOR ANY VITAL SERVICES. 
THE COURT OF APPEALS REVERSED, HOLDING THAT THE EXPECTATION THAT THE
SONS WOULD IN THE FUTURE CONTRIBUTE THEIR TIME AND SERVICES WAS
SUFFICIENT FOR RECOGNITION OF THE PARTNERSHIP FOR INCOME TAX PURPOSES. 
HELD: 

1.  MEMBERS OF A PARTNERSHIP WHO CONTRIBUTED NEITHER CAPITAL NOR
SERVICES DURING THE TAX YEAR CANNOT BE REGARDED AS "CARRYING ON
BUSINESS IN PARTNERSHIP" WITHIN THE MEANING OF SEC. 181 OF THE INTERNAL
REVENUE CODE.  PP. 737-740. 

(A)  TO HOLD THAT "INDIVIDUALS CARRYING ON BUSINESS IN PARTNERSHIP"
INCLUDES PERSONS WHO CONTRIBUTE NOTHING DURING THE TAX PERIOD WOULD
VIOLATE THE FIRST PRINCIPLE OF INCOME TAXATION: THAT INCOME MUST BE
TAXED TO HIM WHO EARNS IT.  PP. 739-740. 

(B)  THE INTENT TO PROVIDE MONEY, GOODS, LABOR, OR SKILL SOMETIME IN
THE FUTURE CANNOT SATISFY THE REQUIREMENT OF SECS. 11 AND 22(A) OF THE
CODE THAT HE WHO PRESENTLY EARNS THE INCOME THROUGH HIS LABOR AND SKILL
BE TAXED THEREFOR.  P. 740. 

2.  IN DETERMINING WHETHER THERE WAS A TRUE PARTNERSHIP FOR INCOME
TAX PURPOSES, THE FACT THAT THERE WAS NO CONTRIBUTION OF "ORIGINAL
CAPITAL" OR "VITAL SERVICES" IS TO BE TAKEN INTO CONSIDERATION, BUT IT
IS NOT CONCLUSIVE.  PP. 741-745. 

(A)  THE TEST IS WHETHER, CONSIDERING ALL THE FACTS - THE AGREEMENT,
THE CONDUCT OF THE PARTIES IN EXECUTION OF ITS PROVISIONS, THEIR
STATEMENTS, THE TESTIMONY OF DISINTERESTED PERSONS, THE RELATIONSHIP OF
THE PARTIES, THEIR RESPECTIVE ABILITIES AND CAPITAL CONTRIBUTIONS, THE
ACTUAL CONTROL OF INCOME AND THE PURPOSES FOR WHICH IT IS USED, AND ANY
OTHER FACTS THROWING LIGHT ON THEIR TRUE INTENT - THE PARTIES IN GOOD
FAITH AND ACTING WITH A BUSINESS PURPOSE INTENDED TO JOIN TOGETHER IN
THE PRESENT CONDUCT OF THE ENTERPRISE.  P. 742. 

(B)  IF, UPON A CONSIDERATION OF ALL THE FACTS, IT IS FOUND THAT THE
PARTNERS JOINED TOGETHER IN GOOD FAITH TO CONDUCT A BUSINESS, HAVING
AGREED THAT THE SERVICES OR CAPITAL TO BE CONTRIBUTED PRESENTLY BY EACH
IS OF SUFFICIENT VALUE TO THE PARTNERSHIP THAT THE CONTRIBUTOR SHOULD
PARTICIPATE IN THE DISTRIBUTION OF PROFITS, THAT IS FUFFICIENT.  PP.
744-745. 

3.  A CONTRIBUTION OF "ORIGINAL CAPITAL" IS NOT ESSENTIAL TO
MEMBERSHIP IN A FAMILY PARTNERSHIP.  PP. 745-748. 

(A)  A FINDING THAT NO TRUE PARTNERSHIP WAS INTENDED IS NOT TO BE
INFERRED AUTOMATICALLY FROM THE FACT OF A GIFT TO A MEMBER OF ONE'S
FAMILY, FOLLOWED BY ITS INVESTMENT IN THE FAMILY PARTNERSHIP.  P. 746. 

(B)  IF THE DONEE OF PROPERTY WHO THEN INVESTS IT IN THE FAMILY
PARTNERSHIP EXERCISES DOMINION AND CONTROL OVER THAT PROPERTY - AND
THROUGH THAT CONTROL INFLUENCES THE CONDUCT OF THE PARTNERSHIP AND THE
DISPOSITION OF ITS INCOME - HE MAY WELL BE A TRUE PARTNER.  P. 747. 

4.  THE CAUSE MUST BE REMANDED TO THE TAX COURT FOR DECISION AS TO
WHICH, IF ANY, OF RESPONDENT'S SONS WERE PARTNERS WITH HIM IN THE
OPERATION OF THE BUSINESS DURING THE TAX YEARS IN QUESTION.  P. 748. 

COMMISSIONER OF INTERNAL REVENUE V. CULBERTSON ET UX. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE COMMISSIONER'S DETERMINATION OF A DEFICIENCY IN RESPONDENT'S
INCOME TAX FOR 1940 AND 1941 WAS SUSTAINED BY THE TAX COURT.  THE COURT
OF APPEALS REVERSED.  168 F.2D 979.  THIS COURT GRANTED CERTIORARI. 
335 U.S. 883.  REVERSED AND REMANDED, P. 748. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES OUR FURTHER CONSIDERATION OF THE FAMILY
PARTNERSHIP PROBLEM.  THE COMMISSIONER OF INTERNAL REVENUE RULED THAT
THE ENTIRE INCOME FROM A PARTNERSHIP ALLEGEDLY ENTERED INTO BY
RESPONDENT AND HIS FOUR SONS MUST BE TAXED TO RESPONDENT,  FN1  AND THE
TAX COURT SUSTAINED THAT DETERMINATION.  THE COURT OF APPEALS FOR THE
FIFTH CIRCUIT REVERSED.  168 F.2D 979.  WE GRANTED CERTIORARI, 335 U.S.
883, TO CONSIDER THE COMMISSIONER'S CLAIM THAT THE PRINCIPLES OF
COMMISSIONER V. TOWER, 327 U.S. 280(1946), AND LUSTHAUS V.
COMMISSIONER, 327 U.S. 293(1946), HAVE BEEN DEPARTED FROM IN THIS AND
OTHER COURTS OF APPEALS DECISIONS. 

RESPONDENT TAXPAYER IS A RANCHER.  FROM 1915 UNTIL OCTOBER 1939, HE
HAD OPERATED A CATTLE BUSINESS IN PARTNERSHIP WITH R. S. COON.  COON,
WHO HAD NUMEROUS BUSINESS INTERESTS IN THE SOUTHWEST AND HAD LARGELY
FINANCED THE PARTNERSHIP, WAS 79 YEARS OLD IN 1939 AND DESIRED TO
DISSOLVE THE PARTNERSHIP BECAUSE OF ILL HEALTH.  TO THAT END, THE BULK
OF THE PARTNERSHIP HERD WAS SOLD UNTIL, IN OCTOBER OF THAT YEAR, ONLY
ABOUT 1,500 HEAD REMAINED.  THESE CATTLE WERE ALL REGISTERED HEREFORDS,
THE BROOD OR FOUNDATION HERD.  CULBERTSON WISHED TO KEEP THESE CATTLE
AND APPROACHED COON WITH AN OFFER OF $65 A HEAD.  COON AGREED TO SELL
AT THAT PRICE, BUT ONLY UPON CONDITION THAT CULBERTSON WOULD SELL AN
UNDIVIDED ONE-HALF INTEREST IN THE HERD TO HIS FOUR SONS AT THE SAME
PRICE.  HIS REASONS FOR IMPOSING THIS CONDITION WERE HIS INTENSE
INTEREST IN MAINTAINING THE HEREFORD STRAIN WHICH HE AND CULBERTSON HAD
DEVELOPED, HIS CONVICTION THAT CULBERTSON WAS TOO OLD TO CARRY ON THE
WORK ALONE, AND HIS PERSONAL INTEREST IN THE CULBERTSON BOYS. 
CULBERTSON'S SONS WERE ENTHUSIASTIC ABOUT THE PROPOSITION, SO
RESPONDENT THEREUPON BOUGHT THE REMAINING CATTLE FROM THE COON AND
CULBERTSON PARTNERSHIP FOR $99,440.  TWO DAYS LATER CULBERTSON SOLD AN
UNDIVIDED ONE-HALF INTEREST TO THE FOUR BOYS, AND THE FOLLOWING DAY
THEY GAVE THEIR FATHER A NOTE FOR $49,720 AT 4 PER CENT INTEREST DUE
ONE YEAR FROM DATE.  SEVERAL MONTHS LATER A NEW NOTE FOR $57,674 WAS
EXECUTED BY THE BOYS TO REPLACE THE EARLIER NOTE.  THE INCREASE IN
AMOUNT COVERED THE PURCHASE BY CULBERTSON AND HIS SONS OF OTHER
PROPERTIES FORMERLY OWNED BY COON AND CULBERTSON.  THIS NOTE WAS PAID
BY THE BOYS IN THE FOLLOWING MANNER: 

CREDIT FOR OVERCHARGE.......................................
$5,930 

GIFTS FROM RESPONDENT.......................................
21,744 

ONE-HALF OF A LOAN PROCURED BY CULBERTSON 

& SONS PARTNERSHIP..........................................
30,000 

THE LOAN WAS REPAID FROM THE PROCEEDS FROM OPERATION OF THE RANCH. 

THE PARTNERSHIP AGREEMENT BETWEEN TAXPAYER AND HIS SONS WAS ORAL. 
THE LOCAL PAPER ANNOUNCED THE DISSOLUTION OF THE COON AND CULBERTSON
PARTNERSHIP AND THE CONTINUATION OF THE BUSINESS BY RESPONDENT AND HIS
BOYS UNDER THE NAME OF CULBERTSON & SONS.  A BANK ACCOUNT WAS OPENED IN
THIS NAME, UPON WHICH TAXPAYER, HIS FOUR SONS AND A BOOKKEEPER COULD
CHECK.  AT THE TIME OF FORMATION OF THE NEW PARTNERSHIP, CULBERTSON'S
OLDEST SON WAS 24 YEARS OLD, MARRIED, AND LIVING ON THE RANCH, OF WHICH
HE HAD FOR TWO YEARS BEEN FOREMAN UNDER THE COON AND CULBERTSON
PARTNERSHIP.  HE WAS A COLLEGE GRADUATE AND RECEIVED $100 A MONTH PLUS
BOARD AND LODGING FOR HIMSELF AND HIS WIFE BOTH BEFORE AND AFTER
FORMATION OF CULBERTSON & SONS AND UNTIL ENTERING THE ARMY.  THE SECOND
SON WAS 22 YEARS OLD, WAS MARRIED AND FINISHED COLLEGE IN 1940, THE
FIRST YEAR DURING WHICH THE NEW PARTNERSHIP OPERATED.  HE WENT DIRECTLY
INTO THE ARMY FOLLOWING GRADUATION AND RENDERED NO SERVICES TO THE
PARTNERSHIP.  THE TWO YOUNGER SONS, WHO WERE 18 AND 16 YEARS OLD
RESPECTIVELY IN 1940, WENT TO SCHOOL DURING THE WINTER AND WORKED ON
THE RANCH DURING THE SUMMER.  FN2 

THE TAX YEARS HERE INVOLVED ARE 1940 AND 1941.  A PARTNERSHIP RETURN
WAS FILED FOR BOTH YEARS INDICATING A DIVISION OF INCOME APPROXIMATING
THE CAPITAL ATTRIBUTED TO EACH PARTNER.  IT IS THE DISALLOWANCE OF THIS
DIVISION OF THE INCOME FROM THE RANCH THAT BRINGS THIS CASE INTO THE
COURTS. 

FIRST.  THE TAX COURT READ OUR DECISIONS IN COMMISSIONER V. TOWER,
SUPRA, AND LUSTHAUS V. COMMISSIONER, SUPRA, AS SETTING OUT TWO
ESSENTIAL TESTS OF PARTNERSHIP FOR INCOME-TAX PURPOSES: THAT EACH
PARTNER CONTRIBUTE TO THE PARTNERSHIP EITHER VITAL SERVICES OR CAPITAL
ORIGINATING WITH HIM.  ITS DECISION WAS BASED UPON A FINDING THAT NONE
OF RESPONDENT'S SONS HAD SATISFIED THOSE REQUIREMENTS DURING THE TAX
YEARS IN QUESTION.  SANCTION FOR THE USE OF THESE "TESTS" OF
PARTNERSHIP IS SOUGHT IN THIS PARAGRAPH FROM OUR OPINION IN THE TOWER
CASE: 

"THERE CAN BE NO QUESTION THAT A WIFE AND A HUSBAND MAY, UNDER
CERTAIN CIRCUMSTANCES, BECOME PARTNERS FOR TAX, AS FOR OTHER,
PURPOSES.  IF SHE EITHER INVESTS CAPITAL ORIGINATING WITH HER OR
SUBSTANTIALLY CONTRIBUTES TO THE CONTROL AND MANAGEMENT OF THE
BUSINESS, OR OTHERWISE PERFORMS VITAL ADDITIONAL SERVICES, OR DOES ALL
OF THESE THINGS SHE MAY BE A PARTNER AS CONTEMPLATED BY 26 U.S.C. SECS.
181, 182.  THE TAX COURT HAS RECOGNIZED THAT UNDER SUCH CIRCUMSTANCES
THE INCOME BELONGS TO THE WIFE.  A WIFE MAY BECOME A GENERAL OR A
LIMITED PARTNER WITH HER HUSBAND.  BUT WHEN SHE DOES NOT SHARE IN THE
MANAGEMENT AND CONTROL OF THE BUSINESS, CONTRIBUTES NO VITAL ADDITIONAL
SERVICE, AND WHERE THE HUSBAND PURPORTS IN SOME WAY TO HAVE GIVEN HER A
PARTNERSHIP INTEREST, THE TAX COURT MAY PROPERLY TAKE THESE
CIRCUMSTANCES INTO CONSIDERATION IN DETERMINING WHETHER THE PARTNERSHIP
IS REAL WITHIN THE MEANING OF THE FEDERAL REVENUE LAWS."  327 U.S. AT
290. 

IT IS THE COMMISSIONER'S CONTENTION THAT THE TAX COURT'S DECISION CAN
AND SHOULD BE REINSTATED UPON THE MERE REAFFIRMATION OF THE QUOTED
PARAGRAPH. 

THE COURT OF APPEALS, ON THE OTHER HAND, WAS OF THE OPINION THAT A
FAMILY PARTNERSHIP ENTERED INTO WITHOUT THOUGHT OF TAX AVOIDANCE SHOULD
BE GIVEN RECOGNITION TAX-WISE WHETHER OR NOT IT WAS INTENDED THAT SOME
OF THE PARTNERS CONTRIBUTE EITHER CAPITAL OR SERVICES DURING THE TAX
YEAR AND WHETHER OR NOT THEY ACTUALLY MADE SUCH CONTRIBUTIONS, SINCE IT
WAS FORMED "WITH THE FULL EXPECTATION AND PURPOSE THAT THE BOYS WOULD,
IN THE FUTURE, CONTRIBUTE THEIR TIME AND SERVICES TO THE PARTNERSHIP." 
FN3  WE MUST CONSIDER, THEREFORE, WHETHER AN INTENTION TO CONTRIBUTE
CAPITAL OR SERVICES SOMETIME IN THE FUTURE IS SUFFICIENT TO SATISFY
ORDINARY CONCEPTS OF PARTNERSHIP, AS REQUIRED BY THE TOWER CASE.  THE
FN4  WHICH SET OUT THE METHOD OF TAXING PARTNERSHIP INCOME, AND SECS.
11 AND 22(A),  FN5 WHICH RELATE TO THE TAXATION OF INDIVIDUAL INCOMES. 

IN THE TOWER CASE WE HELD THAT, DESPITE THE CLAIMED PARTNERSHIP, THE
EVIDENCE FULLY JUSTIFIED THE TAX COURT'S HOLDING THAT THE HUSBAND,
THROUGH HIS OWNERSHIP OF THE CAPITAL AND HIS MANAGEMENT OF THE
BUSINESS, ACTUALLY CREATED THE RIGHT TO RECEIVE AND ENJOY THE BENEFIT
OF THE INCOME AND WAS THUS TAXABLE UPON THAT ENTIRE INCOME UNDER SECS.
11 AND 22(A).  IN SUCH CASE, OTHER MEMBERS OF THE PARTNERSHIP CANNOT BE
CONSIDERED "INDIVIDUALS CARRYING ON BUSINESS IN PARTNERSHIP" AND THUS
"LIABLE FOR INCOME TAX  ...  IN THEIR INDIVIDUAL CAPACITY" WITHIN THE
MEANING OF SEC. 181.  IF IT IS CONCEDED THAT SONE OF THE PARTNERS
CONTRIBUTED NEITHER CAPITAL NOR SERVICES TO THE PARTNERSHIP DURING THE
TAX YEARS IN QUESTION, AS THE COURT OF APPEALS WAS APPARENTLY WILLING
TO DO IN THE PRESENT CASE, IT CAN HARDLY BE CONTENDED THAT THEY ARE IN
ANY WAY RESPONSIBLE FOR THE PRODUCTION OF INCOME DURING THOSE YEARS. 
FN6  THE PARTNERSHIP SECTIONS OF THE CODE ARE, OF COURSE, GEARED TO THE
IMPOSED UPON PARTNERSHIP INCOME AS SUCH.  TO HOLD THAT "INDIVIDUALS
CARRYING ON BUSINESS IN PARTNERSHIP" INCLUDES PERSONS WHO CONTRIBUTE
NOTHING DURING THE TAX PERIOD WOULD VIOLATE THE FIRST PRINCIPLE OF
INCOME TAXATION: THAT INCOME MUST BE TAXED TO HIM WHO EARNS IT.  LUCAS
V. EARL, 281 U.S. 111(1930); HELVERING V. CLIFFORD, 309 U.S. 331(1940);
NATIONAL CARBIDE CORP. V. COMMISSIONER, 336 U.S. 422(1949). 

FURTHERMORE, OUR DECISION IN COMMISSIONER V. TOWER, SUPRA, CLEARLY
INDICATES THE IMPORTANCE OF PARTICIPATION IN THE BUSINESS BY THE
PARTNERS DURING THE TAX YEAR.  WE THERE SAID THAT A PARTNERSHIP IS
CREATED "WHEN PERSONS JOIN TOGETHER THEIR MONEY, GOODS, LABOR, OR SKILL
FOR THE PURPOSE OF CARRYING ON A TRADE, PROFESSION, OR BUSINESS AND
WHEN THERE IS COMMUNITY OF INTEREST IN THE PROFITS AND LOSSES."  ID. AT
286.  THIS IS, AFTER ALL, BUT THE APPLICATION OF AN OFTEN ITERATED
DEFINITION OF INCOME - THE GAIN DERIVED FROM CAPITAL, FROM LABOR, OR
FROM BOTH COMBINED FN7  - TO A PARTICULAR FORM OF BUSINESS
ORGANIZATION.  A PARTNERSHIP IS, IN OTHER WORDS, AN ORGANIZATION FOR
THE PRODUCTION OF INCOME TO WHICH EACH PARTNER CONTRIBUTES ONE OR BOTH
OF THE INGREDIENTS OF INCOME - CAPITAL OR SERVICES.  WARD V. THOMPSON,
22 HOW.  330, 334(1859).  THE INTENT TO PROVIDE MONEY, GOODS, LABOR, OR
SKILL SOMETIME IN THE FUTURE CANNOT MEET THE DEMANDS OF SECS. 11 AND
22(A) OF THE CODE THAT HE WHO PRESENTLY EARNS THE INCOME THROUGH HIS
OWN LABOR AND SKILL AND THE UTILIZATION OF HIS OWN CAPITAL BE TAXED
THEREFOR.  THE VAGARIES OF HUMAN EXPERIENCE PRECLUDE RELIANCE UPON EVEN
GOOD FAITH INTENT AS TO FUTURE CONDUCT AS A BASIS FOR THE PRESENT
TAXATION OF INCOME.  FN8 

SECOND.  WE TURN NEXT TO A CONSIDERATION OF THE TAX COURT'S APPROACH
TO THE FAMILY PARTNERSHIP PROBLEM.  IT TREATED AS ESSENTIAL TO
MEMBERSHIP IN A FAMILY PARTNERSHIP FOR TAX PURPOSES THE CONTRIBUTION OF
EITHER "VITAL SERVICES" OR "ORIGINAL CAPITAL."  FN9  USE OF THESE
"TESTS" OF PARTNERSHIP INDICATES, AT BEST, AN ERROR IN EMPHASIS.  IT
IGNORES WHAT WE SAID IS THE ULTIMATE QUESTION FOR DECISION, NAMELY,
"WHETHER THE PARTNERSHIP IS REAL WITHIN THE MEANING OF THE FEDERAL
REVENUE LAWS" AND MAKES DECISIVE WHAT WE DESCRIBED AS "CIRCUMSTANCES
(TO BE TAKEN) INTO CONSIDERATION" IN MAKING THAT DETERMINATION.  FN10 

THE TOWER CASE THUS PROVIDES NO SUPPORT FOR SUCH AN APPROACH.  WE
THERE SAID THAT THE QUESTION WHETHER THE FAMILY PARTNERSHIP IS REAL FOR
INCOME-TAX PURPOSES DEPENDS UPON 

"WHETHER THE PARTNERS REALLY AND TRULY INTENDED TO JOIN TOGETHER FOR
THE PURPOSE OF CARRYING ON BUSINESS AND SHARING IN THE PROFITS OR
LOSSES OR BOTH.  AND THEIR INTENTION IN THIS RESPECT IS A QUESTION OF
FACT, TO BE DETERMINED FROM TESTIMONY DISCLOSED BY THEIR 'AGREEMENT,
CONSIDERED AS A WHOLE, AND BY THEIR CONDUCT IN EXECUTION OF ITS
PROVISIONS.'  DRENNEN V. LONDON ASSURANCE CO., 113 U.S. 51, 56; COX V.
HICKMAN, 8 H. L. CAS. 268.  WE SEE NO REASON WHY THIS GENERAL RULE
SHOULD NOT APPLY IN TAX CASES WHERE THE GOVERNMENT CHALLENGES THE
EXISTENCE OF A PARTNERSHIP FOR TAX PURPOSES."  327 U.S. AT 287. 

THE QUESTION IS NOT WHETHER THE SERVICES OR CAPITAL CONTRIBUTED BY A
PARTNER ARE OF SUFFICIENT IMPORTANCE TO MEET SOME OBJECTIVE STANDARD
SUPPOSEDLY ESTABLISHED BY THE TOWER CASE, BUT WHETHER, CONSIDERING ALL
THE FACTS - THE AGREEMENT, THE CONDUCT OF THE PARTIES IN EXECUTION OF
ITS PROVISIONS, THEIR STATEMENTS, THE TESTIMONY OF DISINTERESTED
PERSONS, THE RELATIONSHIP OF THE PARTIES, THEIR RESPECTIVE ABILITIES
AND CAPITAL CONTRIBUTIONS, THE ACTUAL CONTROL OF INCOME AND THE
PURPOSES FOR WHICH IT IS USED, AND ANY OTHER FACTS THROWING LIGHT ON
THEIR TRUE INTENT - THE PARTIES IN GOOD FAITH AND ACTING WITH A
BUSINESS PURPOSE INTENDED TO JOIN TOGETHER IN THE PRESENT CONDUCT OF
THE ENTERPRISE.  FN11  THERE IS NOTHING NEW OR PARTICULARLY DIFFICULT
ABOUT SUCH A TEST.  TRIERS OF FACT ARE CONSTANTLY CALLED UPON TO
DETERMINE THE INTENT WITH WHICH A PERSON ACTED.  FN12  THE TAX COURT,
FOR EXAMPLE, MUST MAKE SUCH A DETERMINATION IN EVERY ESTATE TAX CASE IN
WHICH IT IS CONTENDED THAT A TRANSFER WAS MADE IN CONTEMPLATION OF
DEATH, FOR "THE QUESTION, NECESSARILY, IS AS TO THE STATE OF MIND OF
THE DONOR."  UNITED STATES V. WELLS, 283 U.S. 102, 117(1931).  SEE
ALLEN V. TRUST CO. OF GEORGIA, 326 U.S. 630(1946).  WHETHER THE PARTIES
REALLY INTENDED TO CARRY ON BUSINESS AS PARTNERS IS NOT, WE THINK, ANY
MORE DIFFICULT OF DETERMINATION OR THE MANIFESTATIONS OF SUCH INTENT
ANY LESS PERCEPTIBLE THAN IS ORDINARILY TRUE OF INQUIRIES INTO THE
SUBJECTIVE. 

BUT THE TAX COURT DID NOT VIEW THE QUESTION AS ONE CONCERNING THE
BONA FIDE INTENT OF THE PARTIES TO JOIN TOGETHER AS PARTNERS.  NOT ONCE
IN ITS OPINION IS THERE EVEN AN OBLIQUE REFERENCE TO ANY LACK OF INTENT
ON THE PART OF RESPONDENT AND HIS SONS TO COMBINE THEIR CAPITAL AND
SERVICES "FOR THE PURPOSE OF CARRYING ON THE BUSINESS."  INSTEAD, THE
COURT, FOCUSING ENTIRELY UPON CONCEPTS OF "VITAL SERVICES" AND
"ORIGINAL CAPITAL," SIMPLY DECIDED THAT THE ALLEGED PARTNERS HAD NOT
SATISFIED THOSE TESTS WHEN THE FACTS WERE COMPARED WITH THOSE IN THE
TOWER CASE.  THE COURT'S OPINION IS REPLETE WITH SUCH STATEMENTS AS "WE
DISCERN NOTHING CONSTITUTING WHAT WE THINK IS A REQUISITE CONTRIBUTION
TO A REAL PARTNERSHIP," "WE FIND NO SON ADDING 'VITAL ADDITIONAL
SERVICE' WHICH WOULD TAKE THE PLACE OF CAPITAL CONTRIBUTED BECAUSE OF
FORMATION OF A PARTNERSHIP," AND "THE SONS MADE NO CAPITAL
CONTRIBUTION, WITHIN THE SENCE OF THE TOWER CASE."  FN13  6 CCH TCM
698, 699.    UNQUESTIONABLY A COURT'S DETERMINATION THAT THE SERVICES
CONTRIBUTED BY A PARTNER ARE NOT "VITAL" AND THAT HE HAS NOT
PARTICIPATED IN "MANAGEMENT AND CONTROL OF THE BUSINESS"  FN14  OR
CONTRIBUTED "ORIGINAL CAPITAL" HAS THE EFFECT OF PLACING A HEAVY BURDEN
ON THE TAXPAYER TO SHOW THE BONA FIDE INTENT OF THE PARTIES TO JOIN
TOGETHER AS PARTNERS.  BUT SUCH A DETERMINATION IS NOT CONCLUSIVE, AND
THAT IS THE VICE IN THE "TESTS" ADOPTED BY THE TAX COURT.  IT ASSUMES
THAT THERE IS NO ROOM FOR AN HONEST DIFFERENCE OF OPINION AS TO WHETHER
THE SERVICES OR CAPITAL FURNISHED BY THE ALLEGED PARTNER ARE OF
SUFFICIENT IMPORTANCE TO JUSTIFY HIS INCLUSION IN THE PARTNERSHIP.  IF,
UPON A CONSIDERATION OF ALL THE FACTS, IT IS FOUND THAT THE PARTNERS
JOINED TOGETHER IN GOOD FAITH TO CONDUCT A BUSINESS, HAVING AGREED THAT
THE SERVICES OR CAPITAL TO BE CONTRIBUTED PRESENTLY BY EACH IS OF SUCH
VALUE TO THE PARTNERSHIP THAT THE CONTRIBUTOR SHOULD PARTICIPATE IN THE
DISTRIBUTION OF PROFITS, THAT IS SUFFICIENT.  THE TOWER CASE DID NOT
PURPORT TO AUTHORIZE THE TAX COURT TO SUBSTITUTE ITS JUDGMENT FOR THAT
OF THE PARTIES; IT SIMPLY FURNISHED SOME GUIDES TO THE DETERMINATION OF
THEIR TRUE INTENT.  EVEN THOUGH IT WAS ADMITTED IN THE TOWER CASE THAT
THE WIFE CONTRIBUTED NO ORIGINAL CAPITAL, MANAGEMENT OF THE BUSINESS,
OR OTHER VITAL SERVICES, THIS COURT DID NOT SAY AS A MATTER OF LAW THAT
THERE WAS NO VALID PARTNERSHIP.  WE SAID, INSTEAD, THAT "THERE WAS,
THUS, MORE THAN AMPLE EVIDENCE TO SUPPORT THE TAX COURT'S FINDING THAT
NO GENUINE UNION FOR PARTNERSHIP BUSINESS PURPOSES WAS EVER INTENDED
AND THAT THE HUSBAND EARNED THE INCOME."  327 U.S. AT 292. 

THIRD.  THE TAX COURT'S ISOLATION OF "ORIGINAL CAPITAL" AS AN
ESSENTIAL OF MEMBERSHIP IN A FAMILY PARTNERSHIP ALSO INDICATES AN
ERRONEOUS READING OF THE TOWER OPINION.  WE DID NOT SAY THAT THE DONEE
OF AN INTRA-FAMILY GIFT COULD NEVER BECOME A PARTNER THROUGH INVESTMENT
OF THE CAPITAL IN THE FAMILY PARTNERSHIP, ANY MORE THAN WE SAID THAT
ALL FAMILY TRUSTS ARE INVALID FOR TAX PURPOSES IN HELVERING V.
CLIFFORD, SUPRA.  THE FACTS MAY INDICATE, ON THE CONTRARY, THAT THE
AMOUNT THUS CONTRIBUTED AND THE INCOME THEREFROM SHOULD BE CONSIDERED
THE PROPERTY OF THE DONEE FOR TAX, AS WELL AS GENERAL LAW, PURPOSES. 
IN THE TOWER AND LUSTHAUS CASES THIS COURT, APPLYING THE PRINCIPLES OF
LUCAS V. EARL, SUPRA; HELVERING V. CLIFFORD, SUPRA; AND HELVERING V.
HORST, 311 U.S. 112, FOUND THAT THE PURPORTED GIFT, WHETHER OR NOT
TECHNICALLY COMPLETE, HAD MADE NO SUBSTANTIAL CHANGE IN THE ECONOMIC
RELATION OF MEMBERS OF THE FAMILY TO THE INCOME.  IN EACH CASE THE
HUSBAND CONTINUED TO MANAGE AND CONTROL THE BUSINESS AS BEFORE, AND
INCOME FROM THE PROPERTY GIVEN TO THE WIFE AND INVESTED BY HER IN THE
PARTNERSHIP CONTINUED TO BE USED IN THE BUSINESS OR EXPENDED FOR FAMILY
PURPOSES.  WE CHARACTERIZED THE RESULTS OF THE TRANSACTIONS ENTERED
INTO BETWEEN HUSBAND AND WIFE AS "A MERE PAPER REALLOCATION OF INCOME
AMONG THE FAMILY MEMBERS," NOTING THAT "THE ACTUALITIES OF THEIR
RELATION TO THE INCOME DID NOT CHANGE."  327 U.S. AT 292.  THIS, WE
THOUGHT, PROVIDED AMPLE GROUNDS FOR THE FINDING THAT NO TRUE
PARTNERSHIP WAS INTENDED; THAT THE HUSBAND WAS STILL THE TRUE EARNER OF
THE INCOME. 

BUT APPLICATION OF THE CLIFFORD-HORST PRINCIPLE DOES NOT FOLLOW
AUTOMATICALLY UPON A GIFT TO A MEMBER OF ONE'S FAMILY, FOLLOWED BY ITS
INVESTMENT IN THE FAMILY PARTNERSHIP.  IF IT DID, IT WOULD BE NECESSARY
TO DEFINE "FAMILY" AND TO SET PRECISE LIMITS OF MEMBERSHIP THEREIN.  WE
HAVE NOT DONE SO FOR THE OBVIOUS REASON THAT EXISTENCE OF THE FAMILY
RELATIONSHIP DOES NOT CREATE A STATUS WHICH ITSELF DETERMINES TAX
QUESTIONS,  FN15  BUT IS SIMPLY A WARNING THAT THINGS MAY NOT BE WHAT
THEY SEEM.  IT IS FREQUENTLY STATED THAT TRANSACTIONS BETWEEN MEMBERS
OF A FAMILY WILL BE CAREFULLY SCRUTINIZED.  BUT, MORE PARTICULARLY, THE
FAMILY RELATIONSHIP OFTEN MAKES IT POSSIBLE FOR ONE TO SHIFT TAX
INCIDENCE BY SURFACE CHANGES OF OWNERSHIP WITHOUT DISTURBING IN THE
LEAST HIS DOMINION AND CONTROL OVER THE SUBJECT OF THE GIFT OR THE
PURPOSES FOR WHICH THE INCOME FROM THE PROPERTY IS USED.  HE IS ABLE,
IN OTHER WORDS, TO RETAIN "THE SUBSTANCE OF FULL ENJOYMENT OF ALL THE
RIGHTS WHICH PREVIOUSLY HE HAD IN THE PROPERTY."  HELVERING V.
CLIFFORD, SUPRA, AT 336.  FN16 

THE FACT THAT TRANSFERS TO MEMBERS OF THE FAMILY GROUP MAY BE MERE
CAMOUFLAGE DOES NOT, HOWEVER, MEAN THAT THEY INVARIABLY ARE.  THE TOWER
CASE RECOGNIZED THAT ONE'S PARTICIPATION IN CONTROL AND MANAGEMENT OF
THE BUSINESS IS A CIRCUMSTANCE INDICATING AN INTENT TO BE A BONA FIDE
PARTNER DESPITE THE FACT THAT THE CAPITAL CONTRIBUTED ORIGINATED
ELSEWHERE IN THE FAMILY.  FN17  IF THE DONEE OF PROPERTY WHO THEN
INVESTS IT IN THE FAMILY PARTNERSHIP EXERCISES DOMINION AND CONTROL
OVER THAT PROPERTY - AND THROUGH THAT CONTROL INFLUENCES THE CONDUCT OF
THE PARTNERSHIP AND THE DISPOSITION OF ITS INCOME - HE MAY WELL BE A
TRUE PARTNER.  WHETHER HE IS FREE TO, AND DOES, ENJOY THE FRUITS OF THE
PARTNERSHIP IS STRONGLY INDICATIVE OF THE REALITY OF HIS PARTICIPATION
IN THE ENTERPRISE.  IN THE TOWER AND LUSTHAUS CASES WE DISTINGUISHED
BETWEEN ACTIVE PARTICIPATION IN THE AFFAIRS OF THE BUSINESS BY A DONEE
OF A SHARE IN THE PARTNERSHIP ON THE ONE HAND, AND HIS PASSIVE
ACQUIESCENCE TO THE WILL OF THE DONOR ON THE OTHER.  FN18  THIS
DISTINCTION IS OF OBVIOUS IMPORTANCE TO A DETERMINATION OF THE TRUE
INTENT OF THE PARTIES.  IT IS MEANINGLESS IF "ORIGINAL CAPITAL" IS AN
ESSENTIAL TEST OF MEMBERSHIP IN A FAMILY PARTNERSHIP. 

THE CAUSE MUST THEREFORE BE REMANDED TO THE TAX COURT FOR A DECISION
AS TO WHICH, IF ANY, OF RESPONDENT'S SONS WERE PARTNERS WITH HIM IN THE
OPERATION OF THE RANCH DURING 1940 AND 1941.  AS TO WHICH OF THEM, IN
OTHER WORDS, WAS THERE A BONA FIDE INTENT THAT THEY BE PARTNERS IN THE
CONDUCT OF THE CATTLE BUSINESS, EITHER BECAUSE OF SERVICES TO BE
PERFORMED DURING THOSE YEARS, OR BECAUSE OF CONTRIBUTIONS OF CAPITAL OF
WHICH THEY WERE THE TRUE OWNERS, AS WE HAVE DEFINED THAT TERM IN THE
CLIFFORD, HORST, AND TOWER CASES?  NO QUESTION AS TO THE ALLOCATION OF
INCOME BETWEEN CAPITAL AND SERVICES IS PRESENTED IN THIS CASE, AND WE
INTIMATE NO OPINION ON THAT SUBJECT. 

THE DECISION OF THE COURT OF APPEALS IS REVERSED WITH DIRECTIONS TO
REMAND THE CAUSE TO THE TAX COURT FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  GLADYS CULBERTSON, THE WIFE OF W. O. CULBERTSON, SR., IS JOINED
AS A PARTY BECAUSE OF HER COMMUNITY OF INTEREST IN THE PROPERTY AND
INCOME OF HER HUSBAND UNDER TEXAS LAW. 

FN2  A DAUGHTER WAS ALSO MADE A MEMBER OF THE PARTNERSHIP SOME TIME
AFTER ITS FORMATION UPON THE GIFT BY RESPONDENT OF ONE-QUARTER OF HIS
ONE-HALF INTEREST IN THE PARTNERSHIP.  RESPONDENT DID NOT CONTEND
BEFORE THE TAX COURT THAT SHE WAS A PARTNER FOR TAX PURPOSES. 

FN3  168 F.2D 979 AT 982.  THE COURT FURTHER SAID:  "NEITHER STATUTE,
COMMON SENSE, NOR IMPELLING PRECEDENT REQUIRES THE HOLDING THAT A
PARTNER MUST CONTRIBUTE CAPITAL OR RENDER SERVICES TO THE PARTNERSHIP
PRIOR TO THE TIME THAT HE IS TAKEN INTO IT.  THESE TESTS ARE EQUALLY
EFFECTIVE WHETHER THE CAPITAL AND THE SERVICES ARE PRESENTLY
CONTRIBUTED AND RENDERED OR ARE LATER TO BE CONTRIBUTED OR TO BE
RENDERED."  ID. AT 983.  SEE NOTE, 47 MICH. L. REV. 595. 

FN4  26 U.S.C. SECS. 181, 182. 

FN5  26 U.S.C. SECS. 11, 22(A). 

FN6  OF COURSE ONE WHO HAS BEEN A BONA FIDE PARTNER DOES NOT LOSE
THAT STATUS WHEN HE IS CALLED INTO MILITARY OR GOVERNMENT SERVICE, AND
THE COMMISSIONER HAS NOT SO CONTENDED.  ON THE OTHER HAND, ONE HARDLY
BECOMES A PARTNER IN THE CONVENTIONAL SENSE MERELY BECAUSE HE MIGHT
HAVE DONE SO HAD HE NOT BEEN CALLED. 

FN7  EISNER V. MACOMBER, 252 U.S. 189, 207(1920); MERCHANTS LOAN &
TRUST CO. V. SMIETANKA, 255 U.S. 509, 519(1921).  SEE TREAS.  REG. 101,
ART. 22(A)-1.  SEE 1 MERTENS, LAW OF FEDERAL INCOME TAXATION, 159 ET
SEQ. 

FN8  THE REDUCTIO AD ABSURDUM OF THE THEORY THAT CHILDREN MAY BE
PARTNERS WITH THEIR PARENTS BEFORE THEY ARE CAPABLE OF BEING ENTRUSTED
WITH THE DISPOSITION OF PARTNERSHIP FUNDS OR OF CONTRIBUTING
SUBSTANTIAL SERVICES OCCURRED IN TINKOFF V. COMMISSIONER, 120 F.2D 564,
WHERE A TAXPAYER MADE HIS SON A PARTNER IN HIS ACCOUNTING FIRM THE DAY
THE SON WAS BORN. 

FN9  WHILE THE TAX COURT WENT ON TO CONSIDER OTHER FACTORS, IT IS
CLEAR FROM ITS OPINION THAT A CONTRIBUTION OF EITHER "VITAL SERVICES"
OR "ORIGINAL CAPITAL" WAS CONSIDERED ESSENTIAL TO MEMBERSHIP IN THE
PARTNERSHIP.  AFTER FINDING THAT NONE OF RESPONDENT'S SONS HAD, IN THE
COURT'S OPINION, CONTRIBUTED EITHER, THE COURT CONTINUED:  "IN ADDITION
TO THE ABOVE INQUIRY AS TO THE PRESENCE OF THOSE ELEMENTS DEEMED BY THE
TOWER CASE ESSENTIAL TO PARTNERSHIPS RECOGNIZABLE FOR FEDERAL TAX
PURPOSES,  ..."  6 CCH TCM 692, 699.  AGAIN, THE COURT COMMENTED: 

"THOUGH THE PETITIONER URGES THAT MANY CATTLE BUSINESSES ARE COMPOSED
OF FATHERS AND SONS, AND THAT THE NATURE OF THE INDUSTRY SO REQUIRES,
WE THINK THE SAME IS PROBABLY EQUALLY TRUE OF OTHER INDUSTRIES WHERE
MEN WHISH TO TAKE CHILDREN INTO BUSINESS WITH THEM.  NEVERTHELESS, WE
THINK THAT FACT DOES NOT OVERRIDE THE MANY DECISIONS TO THE GENERAL
EFFECT THAT PARTNERS MUST CONTRIBUTE CAPITAL ORIGINATING WITH THEM, OR
VITAL SERVICES."  ID. AT 700. 

FN10  SEE MANNHEIMER AND MOOK, A TAXWISE EVALUATION OF FAMILY
PARTNERSHIPS, 32 IOWA L. REV. 436, 447-48. 

FN11  THIS IS NOT, AS WE UNDERSTAND IT, CONTRARY TO THE APPROACH
TAKEN BY THE BUREAU OF INTERNAL REVENUE IN ITS MOST RECENT STATEMENT OF
POLICY.  I.T. 3845, 1947 CUM. BULL.  66, STATES AT P. 67: 

"WHERE PERSONS WHO ARE CLOSELY RELATED BY BLOOD OR MARRIAGE ENTER
INTO AN AGREEMENT PURPORTING TO CREATE A SO-CALLED FAMILY PARTNERSHIP
OR OTHER ARRANGEMENT WITH RESPECT TO THE OPERATION OF A BUSINESS OR
INCOME-PRODUCING VENTURE, UNDER WHICH AGREEMENT ALL OF THE PARTIES ARE
ACCORDED SUBSTANTIALLY THE SAME TREATMENT AND CONSIDERATION WITH
RESPECT TO THEIR DESIGNATED INTERESTS AND PRESCRIBED RESPONSIBILITIES
IN THE BUSINESS AS IF THEY WERE STRANGERS DEALING AT ARM'S LENGTH;
WHERE THE ACTIONS OF THE PARTIES AS LEGALLY RESPONSIBLE PERSONS
EVIDENCE AN INTENT TO CARRY ON A BUSINESS IN A PARTNERSHIP RELATION;
AND WHERE THE TERMS OF SUCH AGREEMENT ARE SUBSTANTIALLY FOLLOWED IN THE
OPERATION OF THE BUSINESS OR VENTURE, AS WELL AS IN THE DEALINGS OF THE
PARTNERS OR MEMBERS WITH EACH OTHER, IT IS THE POLICY OF THE BUREAU TO
DISREGARD THE CLOSE FAMILY RELATIONSHIP EXISTING BETWEEN THE PARTIES
AND TO RECOGNIZE, FOR FEDERAL INCOME TAX PURPOSES, THE DIVISION OF
PROFITS AS PRESCRIBED BY SUCH AGREEMENT.  HOWEVER, WHERE THE INSTRUMENT
PURPORTING TO CREATE THE FAMILY PARTNERSHIP EXPRESSLY PROVIDES THAT THE
WIFE OR CHILD OR OTHER MEMBER OF THE FAMILY SHALL NOT BE REQUIRED TO
PARTICIPATE IN THE MANAGEMENT OF THE BUSINESS, OR IS MERELY SILENT ON
THAT POINT, THE EXTENT AND NATURE OF THE SERVICES OF SUCH INDIVIDUAL IN
THE ACTUAL CONDUCT OF THE BUSINESS WILL BE GIVEN APPROPRIATE
EVIDENTIARY WEIGHT AS TO THE QUESTION OF INTENT TO CARRY ON THE
BUSINESS AS PARTNERS." 

FN12  NEARLY THREE-QUARTERS OF A CENTURY AGO, BOWEN, L.J., MADE THE
CLASSIC STATEMENT THAT "THE STATE OF A MAN'S MIND IS AS MUCH A FACT AS
THE STATE OF HIS DIGESTION."  EDGINGTON V. FITZMAURICE, 29 L.R. CH.
DIV. 459, 483.  STATE OF MIND HAS ALWAYS BEEN DETERMINATIVE OF THE
QUESTION WHETHER A PARTNERSHIP HAS BEEN FORMED AS BETWEEN THE PARTIES. 
SEE, E.G., DRENNEN V. LONDON ASSURANCE CO., 113 U.S. 51, 56(1885);
MEEHAN V. VALENTINE, 145 U.S. 611, 621(1892); BARKER V. KRAFT, 259
MICH. 70, 242 N.W. 841(1932); ZUBACK V. BAKMAZ, 346 PA. 279, 29 A.2D
473(1943); KENNEDY V. MULLINS, 155 VA. 166, 154 S.E. 568(1930). 

FN13  IN THE TOWER CASE THE TAXPAYER ARGUED THAT HE HAD A RIGHT TO
REDUCE HIS TAXES BY ANY LEGAL MEANS, TO WHICH THIS COURT AGREED.  WE
SAID, HOWEVER, THAT EXISTENCE OF A TAX AVOIDANCE MOTIVE GIVES SOME
INDICATION THAT THERE WAS NO BONA FIDE INTENT TO CARRY ON BUSINESS AS A
PARTNERSHIP.  IF TOWER HAD SET UP OBJECTIVE REQUIREMENTS OF MEMBERSHIP
IN A FAMILY PARTNERSHIP, SUCH AS "VITAL SERVICES" AND "ORIGINAL
CAPITAL," THE MOTIVES BEHIND ADOPTION OF THE PARTNERSHIP FORM WOULD
HAVE BEEN IRRELEVANT. 

FN14  ALTHOUGH "MANAGEMENT AND CONTROL OF THE BUSINESS" WAS ONE OF
THE CIRCUMSTANCES EMPHASIZED BY THE TOWER CASE, ALONG WITH "VITAL
SERVICES" AND "ORIGINAL CAPITAL," THE TAX COURT DID NOT CONSIDER IT AN
ALTERNATIVE "TEST" OF PARTNERSHIP.  SEE DISCUSSION, INFRA, AT PART
THIRD, AND NOTE 17. 

FN15  EXCEPT, OF COURSE, WHEN CONGRESS DEFINES "FAMILY" AND ATTACHES
TAX CONSEQUENCES THERETO.  SEE, E.G. 26 U.S.C. SECS. 503(A)(2). 

FN16  IT IS NOT ENOUGH TO SAY IN THIS CASE, AS WE DID IN THE CLIFFORD
CASE, THAT "IT IS HARD TO IMAGINE THAT RESPONDENT FELT HIMSELF THE
POORER AFTER THIS (PARTNERSHIP AGREEMENT) HAD BEEN EXECUTED OR, IF HE
DID, THAT IT HAD ANY RATIONAL FOUNDATION IN FACT."  309 U.S. AT 336. 
CULBERTSON'S INTEREST IN HIS PARTNERSHIP WITH COON WAS WORTH ABOUT
$50,000 IMMEDIATELY PRIOR TO DISSOLUTION OF THE PARTNERSHIP.  IN ORDER
TO SUSTAIN THE TAX COURT, WE WOULD HAVE TO CONCLUDE THAT HE FELT
HIMSELF WORTH APPROXIMATELY TWICE THAT MUCH UPON HIS PURCHASE OF COON'S
INTEREST, EVEN THOUGH HE HAD AGREED TO SELL THAT INTEREST TO HIS SONS
AT THE SAME PRICE. 

FN17  AS NOTED ABOVE (NOTE 13), PARTICIPATION IN CONTROL AND
MANAGEMENT OF THE BUSINESS, ALTHOUGH GIVEN EQUAL PROMINENCE WITH
CONTRIBUTIONS OF "VITAL SERVICES" AND "ORIGINAL CAPITAL" AS
CIRCUMSTANCES INDICATING AN INTENT TO ENTER INTO A PARTNERSHIP
RELATION, WAS DISCARDED BY THE TAX COURT AS A "TEST" OF PARTNERSHIP. 
THIS INDICATES A BASIC AND ERRONEOUS ASSUMPTION THAT ONE CAN NEVER MAKE
A GIFT TO A MEMBER OF ONE'S FAMILY WITHOUT RETAINING THE ESSENTIALS OF
OWNERSHIP, IF THE GIFT IS THEN INVESTED IN A FAMILY PARTNERSHIP.  WE
INCLUDED PARTICIPATION IN MANAGEMENT AND CONTROL OF THE BUSINESS AS A
CIRCUMSTANCE INDICATIVE OF INTENT TO CARRY ON BUSINESS AS A PARTNER TO
COVER THE SITUATION IN WHICH ACTIVE DOMINION AND CONTROL OF THE SUBJECT
OF THE GIFT HAD ACTUALLY PASSED TO THE DONEE.  IT IS A CIRCUMSTANCE OF
PRIME IMPORTANCE.    FN18  THERE IS TESTIMONY IN THE RECORD AS TO THE
PARTICIPATION BY RESPONDENT'S SONS IN THE MANAGEMENT OF THE RANCH. 
SINCE SUCH EVIDENCE DID NOT FALL WITHIN EITHER OF THE "TESTS" ADOPTED
BY THE TAX COURT, IT FAILED TO CONSIDER THIS TESTIMONY.  WITHOUT
INTIMATING ANY OPINION AS TO ITS PROBATIVE VALUE, WE THINK THAT IT IS
CLEARLY RELEVANT EVIDENCE OF THE INTENT TO CARRY ON BUSINESS AS
PARTNERS. 

MR. JUSTICE BLACK AND MR. JUSTICE RUTLEDGE THINK THAT THE TAX COURT
PROPERLY APPLIED THE PRINCIPLES OF THE TOWER AND LUSTHAUS DECISIONS
(327 U.S. 280, ID., 293) IN THIS CASE.  HOWEVER, THEY CONSIDER IT OF
PARAMOUNT IMPORTANCE IN THIS CASE TO HAVE A COURT INTERPRETATION OF THE
APPLICABLE TAXING STATUTE, FOR GUIDANCE IN ITS APPLICATION. 
ACCORDINGLY, THEY ACQUIESCE IN THE COURT'S OPINION AND JUDGMENT. 

MR. JUSTICE BURTON, CONCURRING, STATES THAT, UPON REMAND OF THE CAUSE
TO THE TAX COURT, THERE IS NOTHING IN THE FACTS WHICH HAVE BEEN
PRESENTED HERE WHICH, AS A MATTER OF LAW, WILL PRECLUDE THAT COURT FROM
FINDING THAT THE 1940 AND 1941 INCOME WAS PROPERLY TAXABLE ON A
PARTNERSHIP BASIS.  THE PHYSICAL ABSENCE OF SOME OF THE CULBERTSON BOYS
FROM THE RANCH DOES NOT NECESSARILY PRECLUDE THEM OR OTHERS FROM THE
OBLIGATIONS OR THE BENEFITS OF THE PARTNERSHIP FOR TAX PURPOSES.  THEIR
CONTRIBUTIONS OF CAPITAL, THEIR PARTICIPATION IN THE INCOME AND THEIR
COMMITMENTS TO RETURN TO THE RANCH OR OTHERWISE TO RENDER SERVICE TO
THE PARTNERSHIP ARE AMONG THE MATERIAL FACTORS TO BE CONSIDERED.  A
PRESENT COMMITMENT TO RENDER FUTURE SERVICES TO A PARTNERSHIP IS IN
ITSELF A MATERIAL CONSIDERATION TO BE WEIGHED WITH ALL OTHER MATERIAL
CONSIDERATIONS FOR THE PURPOSES OF TAXATION AS WELL AS FOR OTHER
PARTNERSHIP PURPOSES. 

MR. JUSTICE JACKSON WOULD AFFIRM ON THE OPINION OF THE COURT BELOW,
BEING OF THE VIEW THAT THE ORDINARY COMMON-LAW TESTS OF VALIDITY OF
PARTNERSHIPS ARE THE TESTS FOR TAX PURPOSES AND THAT THEY WERE MET IN
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE COURT FINDS THAT THE TAX COURT APPLIED WRONG LEGAL STANDARDS IN
DETERMINING THAT THE ARRANGEMENT IN CONTROVERSY DID NOT CONSTITUTE A
PARTNERSHIP.  IT REMANDS THE CASE TO THE TAX COURT BECAUSE IT IS FOR
THAT COURT, AND NOT FOR THE COURT OF APPEALS, TO ASCERTAIN, ON THE
BASIS OF APPROPRIATE LEGAL CRITERIA, THE EXISTENCE OF A PARTNERSHIP
WITHIN THE PROVISIONS OF INT. REV. CODE SECS. 181 AND 182.  WITH THESE
CONCLUSIONS I AGREE.  I THINK, HOWEVER, THAT IT IS DUE TO THE TAX
COURT, THE COURTS OF APPEALS, THE TREASURY AND THE BAR TO MAKE MORE
EXPLICIT WHAT THE APPROPRIATE LEGAL CRITERIA ARE. 

THE TAX COURT'S DECISION RESTED ON A MISCONCEPTION OF OUR DECISION IN
COMMISSIONER V. TOWER, 327 U.S. 280.  IT IS, HOWEVER, FAIR TO SAY THAT
IT WAS LED INTO THAT MISCONCEPTION BY PHRASES WHICH IT CULLED FROM THE
TOWER OPINION WITH INADEQUATE ATTENTION TO THE OPINION IN ITS ENTIRETY
BOTH WHAT IT SAID AND WHAT IT SIGNIFICANTLY DID NOT SAY.  THE TOWER
OPINION DID NOT SAY WHAT THE GOVERNMENT NOW URGES UPON THIS COURT; THE
COURT'S OPINION DID NOT TAKE THE POSITION OF THE CONCURRING OPINION. 
IN SHORT, THE OPINION DID NOT SAY THAT FAMILY PARTNERSHIPS ARE NOT TO
BE REGARDED AS PARTNERSHIPS FOR INCOME-TAX PURPOSES EVEN THOUGH THEY BE
GENUINE COMMERCIAL PARTNERSHIPS; THE OPINION DID NOT EVEN ANNOUNCE
HOBBLING PRESUMPTIONS UNDER THE INCOME-TAX LAW AGAINST SUCH
PARTNERSHIPS. 

ON THE CONTRARY, IN DEFINING THE RELEVANT CONSIDERATIONS FOR
DETERMINING THE EXISTENCE OF A PARTNERSHIP, THE COURT IN THE TOWER CASE
RELIED ON FAMILIAR DECISIONS FORMULATING THE CONCEPT OF PARTNERSHIP FOR
PURPOSES OF VARIOUS COMMERCIAL SITUATIONS IN WHICH THE NATURE OF THAT
CONCEPT WAS DECISIVE.  IT IS SIGNIFICANT THAT AMONG THE CASES CITED WAS
THE LEADING CASE OF COX V. HICKMAN, 8 H. L. CAS. 268.  THE COURT TODAY
REAFFIRMS THIS RELIANCE BY ITS QUOTATION FROM THE TOWER CASE.  THE
FINAL SENTENCE OF THE PORTION QUOTED UNDERLINES THE FACT THAT THE COURT
DID NOT PURPORT TO ANNOUNCE A SPECIAL CONCEPT OF "PARTNERSHIP" FOR TAX
PURPOSES DIFFERING FROM THE CONCEPT THAT RULES IN ORDINARY COMMERCIAL
LAW CASES.  THE SENTENCE IS: 

"WE SEE NO REASON WHY THIS GENERAL RULE SHOULD NOT APPLY IN TAX CASES
WHERE THE GOVERNMENT CHALLENGES THE EXISTENCE OF A PARTNERSHIP FOR TAX
PURPOSES."  327 U.S. AT 287. 

THE TAXABILITY OF INCOME UNDER SECS. 181 AND 182 IS NOT A PURELY
ECONOMIC PROBLEM LIKE THE DETERMINATION UNDER SEC. 22(A) OF WHAT IS
INCOME AND TO WHOM IT IS ATTRIBUTABLE.  THE WORD "INCOME" HAS NONE BUT
AN ECONOMIC SIGNIFICANCE, AND SO THE APPLICATION OF SEC. 22(A) IS
PROPERLY A MATTER OF ECONOMIC ANALYSIS.  CF. LUCAS V. EARL, 281 U.S.
111.  BUT SECS. 181 AND 182 IMPORT A CONCEPT OF A DIFFERENT SORT. 
THESE SECTIONS MAKE TAXABILITY TURN ON THE EXISTENCE OF THE RELATION OF
"PARTNERSHIP."  THE TERM CARRIES ITS OWN MEANING, JUST AS DOES
"NEGLIGENCE" IN THE FEDERAL EMPLOYERS' LIABILITY ACT, BECAUSE SUCH A
COMMON-LAW CONCEPT HAS A CONTENT FAMILIAR THROUGHOUT THE COUNTRY TO
THOSE TO WHOM THE LAW SPEAKS.  THE BASIC CRITERIA WHICH DETERMINE ITS
APPLICABILITY HAVE BEEN SO WELL AND SO LONG ESTABLISHED THAT THEY WERE
IMPLICITLY INCORPORATED BY THE INTERNAL REVENUE CODE'S DEFINITION OF
"PARTNERSHIP."  FN1  CONGRESS HAS THEREBY STAMPED A NATIONWIDE MEANING
UPON THE TERM WHICH DISREGARDS MINOR LOCAL VARIANTS OR AN OCCASIONAL
LEGAL SPORT.  ONLY IN THE APPLICATION TO A GIVEN CASE OF THE CRITERIA
THUS INCORPORATED DO ECONOMIC DATA BECOME RELEVANT, AND SUCH DATA ARE
INEVITABLY SUBJECT TO DIFFERING INFERENCES BY DIFFERENT TRIERS OF
FACT.  IT IS IN THE APPRAISAL OF FACTS, THEREFORE, THAT DIFFICULTY
ARISES, AND THIS DIFFICULTY IS REFLECTED BY AN APPELLATE COURT IN THE
DEGREE OF RESPECT IT ACCORDS TO THE PARTICULAR TRIBUNAL WHOSE APPRAISAL
OF THE FACTS IS BEFORE IT FOR REVIEW. 

THAT, AS I SEE IT, IS THE CRUX OF THE PROBLEM THAT IS PRESENTED BY
THESE FAMILY PARTNERSHIPS IN THEIR RELATION TO THE INCOME TAX.  MEN MAY
PUT ON THE HABILIMENTS OF A PARTNERSHIP WHENEVER IT ADVANTAGES THEM TO
BE TREATED AS PARTNERS UNDERNEATH, ALTHOUGH IN FACT IT MAY BE A CASE OF
"THE KING HAS NO CLOTHES ON" TO THE SHARP EYES OF THE LAW.  SINCE THERE
ARE SPECIAL TEMPTATIONS TO APPEAR AS A PARTNERSHIP IN ORDER TO AVOID
THE HARDSHIPS OF HEAVY TAXATION, THE TRIBUNAL WHICH PRESUMABLY IS
GIFTED WITH SUPERIOR DISCERNMENT IN DIFFERENTIATING BETWEEN THE REAL
THING AND THE IMITATION - THE TAX COURT - WILL NATURALLY BE ON THE
ALERT AGAINST BEING TAKEN IN.  THEREFORE, A FINDING BY THE TAX COURT
THAT THAT WHICH HAS THE OUTWARD APPEARANCE OF AN ARRANGEMENT TO ENGAGE
IN A COMMON ENTERPRISE IS NOT IN FACT SUCH AN ASSOCIATED BUSINESS
VENTURE OUGHT TO BE RESPECTED WHEN CHALLENGED IN ANOTHER COURT, UNLESS
SUCH A DETERMINATION IS WHOLLY WITHOUT WARRANT IN FACT OR, AS IN THIS
CASE, THE WRONG STANDARDS FOR JUDGMENT HAVE BEEN APPLIED. 

A FAIR READING OF OUR TOWER OPINION IN ITS ENTIRETY REFLECTS THE
FORMULATION OF THE CONCEPT OF PARTNERSHIP WHICH IS SET FORTH AT THE
BEGINNING OF ITS ANALYSIS AND WHICH THE COURT NOW QUOTES.  WHILE
RECOGNIZING THE IMPORTANCE OF THE QUESTION "WHO ACTUALLY OWNED A SHARE
OF THE CAPITAL ATTRIBUTED TO THE WIFE ON THE PARTNERSHIP BOOKS," THE
TOWER OPINION STATES THE ULTIMATE ISSUE TO BE "WHETHER THIS HUSBAND AND
WIFE REALLY INTENDED TO CARRY ON BUSINESS AS A PARTNERSHIP."  327 U.S.
AT 289.  TO THAT DETERMINATION IT WAS OF COURSE RELEVANT THAT NO NEW
CAPITAL WAS BROUGHT INTO THE BUSINESS AS A RESULT OF THE FORMATION OF
THE PARTNERSHIP, THAT THE WIFE DREW ON INCOME OF THE PARTNERSHIP ONLY
TO PAY FOR THE TYPE OF THINGS SHE HAD PREVIOUSLY BOUGHT FOR THE FAMILY,
AND THAT THE CONSEQUENCE WAS A MERE PAPER REALLOCATION OF INCOME.  BUT
THESE CIRCUMSTANCES WERE NOT CITED AS GIVING THE TERM "PARTNERSHIP" A
CONTENT PECULIAR TO THE INTERNAL REVENUE CODE.  THEY WERE
CHARACTERIZED, RATHER, SIMPLY AS "MORE THAN AMPLE EVIDENCE TO SUPPORT
THE TAX COURT'S FINDING THAT NO GENUINE UNION FOR PARTNERSHIP BUSINESS
PURPOSES WAS EVER INTENDED" AND, AS A COROLLARY, "THAT THE HUSBAND
EARNED THE INCOME."  327 U.S. AT 292. 

RECOGNITION OF THE IMPORTANCE, IN APPLYING SECS. 181 AND 182, OF THE
APPRAISAL OF FACTS MAKES MANIFEST WHY, QUITE APART FROM THE DEFINITION
CONTAINED IN SEC. 3797, A DETERMINATION BY A STATE COURT SHOULD NOT, AS
THE TOWER OPINION POINTED OUT, FORECLOSE A CONTRARY DETERMINATION BY A
FEDERAL TRIBUNAL CHARGED WITH ADMINISTRATION OF THE TAX LAWS.  SUCH AN
INCONSISTENCY WOULD NOT MEAN THAT THE LEGAL STANDARDS APPLIED BY EACH
WERE INCONSISTENT; IT WOULD BE A RESULT SIMPLY OF THE COMMONPLACE THAT
NO FINDER OF FACT CAN SEE THROUGH THE EYES OF ANY OTHER FINDER OF
FACT.  SEE TEXAS V. FLORIDA, 306 U.S. 398, 411.  NOR WOULD
INCONSISTENCY BE CREATED BY A STATE COURT'S CONCERN FOR THE PROTECTION
OF CREDITORS WHICH LEAD IT TO SEIZE UPON ADOPTION OF THE OUTWARD FORM
AS THE VITAL FACT.  SO, INDEED, MIGHT THE TAXING AUTHORITIES REFUSE TO
BE PRECLUDED FROM HOLDING THE TAXPAYER TO HIS ELECTION TO ADOPT THE
FORM OF A PARTNERSHIP.  CF. HIGGINS V. SMITH, 308 U.S. 473, 477.  THE
NEED FOR GUARDING AGAINST MISUSE OF THE OUTWARD FORM OF A PARTNERSHIP
AS A DEVICE FOR OBTAINING TAX ADVANTAGES IS PROPERLY SATISFIED BY
RELIANCE ON THE VIGILANCE OF THE TAX COURT, NOT BY DISTORTING THE
CONCEPT OF PARTNERSHIP.  IT IS NOT FOR THIS COURT, BY REDEFINITION OR
THE ERECTION OF PRESUMPTIONS, TO AMEND THE INTERNAL REVENUE CODE SO AS
VIRTUALLY TO BAN PARTNERSHIPS COMPOSED OF THE MEMBERS OF AN INTIMATE
FAMILY GROUP. 

THE PRESENT CASE, NEVERTHELESS, IS NOT THE FIRST MANIFESTATION  OF AN
IMPRESSION THAT THE TOWER OPINION HAD PRECISELY SUCH AN EFFECT.  FN2
IT SEEMS TO ME IMPORTANT, THEREFORE, TO MAKE CRYSTAL CLEAR THAT THERE
IS NO SPECIAL CONCEPT OF "PARTNERSHIP" FOR TAX PURPOSES, WHILE AT THE
SAME TIME RECOGNIZING THAT IN VIEW OF THE TEMPTATIONS TO ASSUME A
VIRTUE THAT THEY HAVE NOT FOR THE SAKE OF TAX SAVINGS, MEN AND WOMEN
MAY APPEAR IN A GUISE WHICH THE GIMLET EYE OF THE TAX COURT IS ENTITLED
TO PIERCE.  WE SHOULD LEAVE NO DOUBT IN THE MINDS OF THE TAX COURT, OF
THE COURTS OF APPEALS, OF THE TREASURY AND OF THE BAR THAT THE
ESSENTIAL HOLDING OF THE TOWER CASE IS THAT THERE IS "NO REASON" WHY
THE "GENERAL RULE" BY WHICH THE EXISTENCE OF A PARTNERSHIP IS
DETERMINED "SHOULD NOT APPLY IN TAX CASES WHERE THE GOVERNMENT
CHALLENGES THE EXISTENCE OF A PARTNERSHIP FOR TAX PURPOSES." 

IN PLAIN ENGLISH, IF AN ARRANGEMENT AMONG MEN IS NOT AN ARRANGEMENT
WHICH PUTS THEM ALL IN THE SAME BUSINESS BOAT, THEN THEY CANNOT GET
INTO THE SAME BOAT MERELY TO SEEK THE BENEFITS OF SECS. 181 AND 182. 
BUT IF THEY ARE IN THE SAME BUSINESS BOAT, ALTHOUGH THEY MAY HAVE
VARYING REWARDS AND VARIED RESPONSIBILITIES, THEY DO NOT CEASE TO BE IN
IT WHEN THE TAX COLLECTOR APPEARS. 

FN1  THE CODE DEFINES "PARTNERSHIP" IN THE FOLLOWING TERMS: 

"SEC. 3797.  DEFINITIONS. 

     .         .         .         .         . 

"(2)  PARTNERSHIP AND PARTNER. 

"THE TERM 'PARTNERSHIP' INCLUDES A SYNDICATE, GROUP, POOL, JOINT
VENTURE, OR OTHER UNINCORPORATED ORGANIZATION, THROUGH OR BY MEANS OF
WHICH ANY BUSINESS, FINANCIAL OPERATION, OR VENTURE IS CARRIED ON, AND
WHICH IS NOT, WITHIN THE MEANING OF THIS TITLE, A TRUST OR ESTATE OR A
CORPORATION; AND THE TERM 'PARTNER' INCLUDES A MEMBER IN SUCH A
SYNDICATE, GROUP, POOL, JOINT VENTURE, OR ORGANIZATION." 

THIS DEFINITION CARRIES TWO NECESSARY IMPLICATIONS:  (1) RECOURSE TO
THE LAW OF A PARTICULAR STATE IS PRECLUDED, SEE TREAS. REG. 111, SECS.
29.3797-1, 29.3797-4; SEE ALSO LYETH V. HOEY, 305 U.S. 188, 193-94; (2)
USE OF THE WORDS "THE TERM 'PARTNERSHIP' INCLUDES" PRESUPPOSES THAT THE
TERM HAS A RECOGNIZED CONTENT.  IF THIS IS NOT TO BE FOUND IN THE LAW
OF A PARTICULAR STATE, IT CAN ONLY BE FOUND IN THE GENERAL LAW OF
PARTNERSHIP. 

FN2  SEE, E.G., FLETCHER V. COMMISSIONER, 164 F.2D 182(C.A.2D CIR.);
HOUGLAND V. COMMISSIONER, 166 F.2D 815(C.A.6TH CIR.).  IN THIS
CONNECTION SEE ALSO TUTTLE AND WILSON, THE CONFUSION ON FAMILY
PARTNERSHIPS, 9 GA. B.J. 353(1947). 
..END :





FARMERS IRRIGATION CO. V. MCCOMB, 337 U.S. 755 


ARGUED DECEMBER 16, 1948.  - DECIDED JUNE 27, 1949.  - 167 F.2D 911,
MODIFIED AND AFFIRMED. 


THE SOLE ACTIVITY OF A MUTUAL IRRIGATION COMPANY OWNED ENTIRELY BY
FARMERS IS THE COLLECTION, STORAGE AND DISTRIBUTION OF WATER FOR
IRRIGATION PURPOSES, WHOLLY WITHIN COLORADO.  THE WATER IS SUPPLIED BY
THE COMPANY TO FARMERS AT HEADGATES ON THE COMPANY'S CANALS, WHENCE IT
IS TAKEN INTO THE FARMERS' OWN LATERALS AND USED BY THEM IN THE
PRODUCTION OF AGRICULTURAL PRODUCTS TO BE SHIPPED IN INTERSTATE
COMMERCE.  THE COMPANY IS NONPROFIT AND DISTRIBUTES WATER ONLY TO ITS
STOCKHOLDERS.  HELD:  THE COMPANY'S FIELD EMPLOYEES (DITCH RIDERS, LAKE
TENDERS AND MAINTENANCE MEN) AND ITS BOOKKEEPER ARE WITHIN THE COVERAGE
OF THE FAIR LABOR STANDARDS ACT, AS EMPLOYED IN AN "OCCUPATION
NECESSARY TO THE PRODUCTION" OF GOODS FOR INTERSTATE COMMERCE, WITHIN
THE MEANING OF SEC. 3(J); AND ARE NOT EXEMPT UNDER SEC. 13(A) AS
"EMPLOYED IN AGRICULTURE."  PP. 756-770. 

1.  THE FACT THAT A PARTICULAR ACTIVITY IS NECESSARY TO AGRICULTURAL
PRODUCTION DOES NOT REQUIRE THE CONCLUSION THAT IT IS AGRICULTURAL
PRODUCTION.  P. 759. 

2.  THE TEST OF WHETHER A PARTICULAR TYPE OF ACTIVITY IS AGRICULTURAL
IS WHETHER THE ACTIVITY IS CARRIED ON AS PART OF THE AGRICULTURAL
FUNCTION OR IS SEPARATELY ORGANIZED AS AN INDEPENDENT PRODUCTIVE
ACTIVITY.  P. 761. 

3.  THE IRRIGATION COMPANY IS NOT ENGAGED IN "AGRICULTURE," WITHIN
THE MEANING OF SEC. 3(F) OF THE ACT, SINCE IT OWNS NO FARMS, RAISES NO
CROPS, AND IS NOT ENGAGED IN CULTIVATING OR TILLING THE SOIL OR IN
GROWING ANY AGRICULTURAL COMMODITY.  PP. 762-764. 

4.  IN SEC. 3(F) OF THE ACT, WHICH DEFINES "AGRICULTURE," THE WORD
"PRODUCTION" IS NOT USED IN THE SPECIAL EXPANDED MEANING IN WHICH IT IS
USED IN SEC. 3(J) OF THE ACT.  PP. 764-766. 

5.  THE ACTIVITIES OF THE EMPLOYEES IN QUESTION ARE NOT EXEMPT, UNDER
SEC. 3(F), AS PRACTICES "PERFORMED BY A FARMER OR ON A FARM."  PP. 766
768. 

6.  ASSUMING THAT THE AGRICULTURAL EXEMPTION INCLUDES THE WORK OF
PERSONS WHO DO NO FARMING BUT ARE EMPLOYED BY FARMERS, THE EMPLOYEES
HERE IN QUESTION ARE NONETHELESS NOT EXEMPT, SINCE THEY ARE EMPLOYED
NOT BY FARMERS BUT BY THE COMPANY, AND THE FACT THAT THE COMPANY IS
OWNED BY FARMERS AND IS NONPROFIT IS IMMATERIAL.  PP. 768-769. 

FARMERS RESERVOIR & IRRIGATION CO. V. MCCOMB, WAGE & HOUR
ADMINISTRATOR. 

NO. 128.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT* . 

*TOGETHER WITH NO. 196, MCCOMB, WAGE & HOUR ADMINISTRATOR, V. FARMERS
RESERVOIR & IRRIGATION CO., ON CERTIORARI TO THE SAME COURT. 

A SUIT BY THE ADMINISTRATOR TO RESTRAIN ALLEGED VIOLATIONS OF THE
FAIR LABOR STANDARDS ACT BY A MUTUAL IRRIGATION COMPANY WAS DISMISSED
BY THE DISTRICT COURT, WHICH HELD THE EMPLOYEES IN QUESTION EXEMPT AS
EMPLOYED IN AGRICULTURE.  THE COURT OF APPEALS REVERSED, EXCEPT AS TO A
BOOKKEEPER, WHOSE CASE IT REGARDED AS MOOT.  167 F.2D 911.  THIS COURT
GRANTED CROSS-PETITIONS FOR CERTIORARI.  335 U.S. 809.  MODIFIED AND
AFFIRMED, P. 770. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION TO BE DECIDED IN THIS CASE IS WHETHER THE
EMPLOYEES OF A MUTUAL DITCH COMPANY ARE EXEMPT FROM THE PROVISIONS OF
THE FAIR LABOR STANDARDS ACT  FN1  AS PERSONS EMPLOYED IN AGRICULTURE. 
THE COMPANY IS THE FARMERS RESERVOIR & IRRIGATION COMPANY, A COLORADO
CORPORATION HAVING AN AUTHORIZED CAPITAL STOCK OF $1,050,000 AND AN
AUTHORIZED BONDED INDEBTEDNESS OF $850,000, $450,000 OF WHICH IS
PRESENTLY OUTSTANDING IN THE HANDS OF THE PUBLIC.  THE COMPANY HAS
CENTRAL OFFICES IN DENVER.  IT OWNS FOUR LARGE AND SEVERAL SMALL
RESERVOIRS AND A SYSTEM OF CANALS FROM 200 TO 300 MILES LONG, ALL IN
COLORADO.  THE SOLE ACTIVITY OF THE CORPORATION IS THE COLLECTION,
STORAGE AND DISTRIBUTION OF WATER FOR IRRIGATION PURPOSES.  THE WATER
IS DIVERTED FROM THE PUBLIC STREAMS OF COLORADO, STORED IN THE
COMPANY'S RESERVOIRS AND DISTRIBUTED TO FARMERS THROUGH THE COMPANY'S
CANALS. 

THE COMPANY IS A MUTUAL ONE.  IT DOES NOT SELL WATER.  IT DISTRIBUTES
IT ONLY TO ITS OWN STOCKHOLDERS, WHO ARE EACH ENTITLED TO A LIMITED
QUANTITY FOR EACH SHARE OF STOCK HELD.  THE INCOME OF THE COMPANY IS
DERIVED LARGELY FROM ASSESSMENTS LEVIED ON THE STOCKHOLDERS ANNUALLY TO
PAY FOR THE COSTS OF OPERATING THE SYSTEM.  THERE ARE NO PROFITS AND NO
DIVIDENDS. 

THE COMPANY DID NOT COMPLY WITH EITHER THE RECORD KEEPING OR THE
WAGES AND HOURS PROVISIONS OF THE FAIR LABOR STANDARDS ACT, AND THE
ADMINISTRATOR SOUGHT AN INJUNCTION DIRECTED AGAINST CONTINUATION OF
THESE ALLEGED VIOLATIONS.  THE COMPANY CLAIMED THAT ITS EMPLOYEES WERE
NOT SUBJECT TO THE ACT.  THESE EMPLOYEES FALL INTO TWO CATEGORIES. 
FIRST, THERE ARE THE FIELD EMPLOYEES - DITCH RIDERS, LAKE TENDERS AND
MAINTENANCE MEN.  THEIR ACTIVITY, IN GENERAL, CONSISTS OF THE PHYSICAL
OPERATION, CONTROL AND MAINTENANCE OF THE COMPANY'S CANALS, RESERVOIRS,
AND HEADGATES.  THE SECOND CATEGORY COMPRISES THE COMPANY'S OFFICE
FORCE IN DENVER.  FOR PURPOSES OF THIS CASE IT CONTAINS ONLY ONE
OCCUPANT - THE COMPANY'S BOOKKEEPER. 

THE DISTRICT COURT HELD THAT THE FIELD EMPLOYEES WERE ENGAGED IN THE
PRODUCTION OF GOODS FOR COMMERCE, AS THOSE TERMS ARE DEFINED IN SEC. 3
OF THE ACT, BUT THAT THE BOOKKEEPER WAS NOT.  IT HELD, HOWEVER, THAT
ALL OF THE COMPANY'S EMPLOYEES WERE EXEMPT UNDER SEC. 13(A)(6) AS
PERSONS "EMPLOYED IN AGRICULTURE."  THIS SECOND HOLDING WAS REVERSED,
AS TO THE FIELD EMPLOYEES, BY THE COURT OF APPEALS FOR THE TENTH
CIRCUIT,  FN2  ONE JUDGE DISSENTING, AND, IN NO. 128, WE GRANTED THE
COMPANY'S PETITION FOR CERTIORARI ON THE EXEMPTION ISSUE.  THE COURT OF
APPEALS DID NOT PASS ON THE BOOKKEEPER'S STATUS.  IT REGARDED HIS CASE
AS MOOT BECAUSE HIS SALARY WAS SAID BY THE COMPANY, IN ITS BRIEF, TO
HAVE BEEN RAISED TO $210 PER MONTH WHILE THE APPEAL WAS PENDING.  THE
COURT REGARDED THIS AS SUFFICIENT TO ESTABLISH HIS EXEMPTION AS AN
ADMINISTRATIVE EMPLOYEE UNDER SEC. 13(A)(1) OF THE ACT AND THEREFORE
LIMITED ITS CONSIDERATION AND ITS REVERSAL OF THE DISTRICT COURT TO THE
FIELD EMPLOYEES.  IN NO. 196, WE GRANTED THE ADMINISTRATOR'S CROSS
PETITION WITH RESPECT TO THE BOOKKEEPER. 

IT IS CONCEDED HERE THAT THE COURTS BELOW WERE CORRECT IN HOLDING
THAT THE FIELD EMPLOYEES ARE ENGAGED IN THE PRODUCTION OF GOODS FOR
COMMERCE.  THE COMPANY, HOWEVER, ARGUES THAT THIS REQUIRES THE
CONCLUSION THAT THEY ARE EMPLOYED IN AGRICULTURE.  THIS ARGUMENT RESTS
ON THE FACT THAT THE ACTIVITIES OF THE COMPANY AND ITS EMPLOYEES ARE
ENTIRELY CONFINED WITHIN THE STATE OF COLORADO.  THE COMPANY DIVERTS
WATER IN COLORADO, STORES IT IN COLORADO, DISTRIBUTES IT IN COLORADO TO
FARMERS WHO, FINALLY, CONSUME IT IN COLORADO.  THE ONLY PRODUCTS MOVING
IN INTERSTATE COMMERCE ARE THE AGRICULTURAL COMMODITIES PRODUCED BY THE
FARMERS WHO CONSUME THE COMPANY'S WATER.  HENCE, IT IS SAID THAT WE CAN
HOLD THAT THE COMPANY'S EMPLOYEES ARE ENGAGED IN THE PRODUCTION OF
GOODS FOR INTERSTATE COMMERCE ONLY IF WE SAY THAT THEIR WORK IN
SUPPLYING WATER TO THE FARMERS IS AN INTEGRAL PART OF THE PRODUCTION OF
THE FARM PRODUCTS WHICH ARE SHIPPED IN INTERSTATE COMMERCE.  BUT THAT
PRODUCTION IS, OF COURSE, AGRICULTURE.  HENCE, THE COMPANY'S EMPLOYEES,
IF THEY ARE ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE, MUST BE
EXEMPT AS PERSONS EMPLOYED IN AGRICULTURE. 

THE ARGUMENT RESTS ON A MISCONSTRUCTION OF SEC. 3(J) OF THE FAIR
LABOR STANDARDS ACT  FN3  - THE SECTION WHICH THE COURTS BELOW RELIED
ON IN CONCLUDING THAT THE FIELD EMPLOYEES OF THE COMPANY ARE ENGAGED IN
THE PRODUCTION OF GOODS FOR COMMERCE.  SECTION 3(J) PROVIDES THAT "FOR
THE PURPOSES OF THIS ACT AN EMPLOYEE SHALL BE DEEMED TO HAVE BEEN
ENGAGED IN THE PRODUCTION OF GOODS IF SUCH EMPLOYEE WAS EMPLOYED  ...
IN ANY PROCESS OR OCCUPATION NECESSARY TO THE PRODUCTION THEREOF."  FN4
FROM THE BEGINNING, THIS COURT HAS REFUSED EITHER TO READ THIS
PROVISION OUT OF THE ACT BY LIMITING THE COVERAGE OF THE ACT TO THOSE
ACTUALLY ENGAGED IN PRODUCTION OR, ON THE OTHER HAND, TO EXPAND IT SO
AS TO INCLUDE EVERY PROCESS OR OCCUPATION AFFECTING PRODUCTION FOR
COMMERCE.  WE HAVE HELD THAT, IF AN OCCUPATION, NOT ITSELF PRODUCTION
FOR COMMERCE, HAS "A CLOSE AND IMMEDIATE TIE" WITH THE PROCESS OF
PRODUCTION, IT COMES WITHIN THE PROVISIONS OF SEC. 3(J).  FN5 APPLYING
THIS STANDARD, THE COURT OF APPEALS QUITE PROPERLY HELD THAT THE FIELD
EMPLOYEES HERE ARE ENGAGED IN AN OCCUPATION NECESSARY, IN THE STATUTORY
SENSE, FOR THE PRODUCTION OF AGRICULTURAL COMMODITIES SHIPPED IN
COMMERCE.  FN6 

BUT THE CONCLUSION THAT THE WORK IS NECESSARY TO AGRICULTURAL
PRODUCTION DOES NOT REQUIRE US TO SAY THAT IT IS AGRICULTURAL
PRODUCTION.  THIS DISTINCTION BETWEEN NECESSITY AND IDENTITY, OR,
DIFFERENTLY PHRASED, BETWEEN PRODUCTION IN THE NORMAL SENSE AND
PRODUCTION IN THE SPECIAL SENSE DEFINED IN SEC. 3(J), DISPOSES OF THE
COMPANY'S CONTENTION.  THE QUESTION HERE IS WHETHER THE OCCUPATION OF
THE FIELD EMPLOYEES OF THE DITCH COMPANY CAN ITSELF BE TERMED
AGRICULTURE.  THE ANSWER TO THAT QUESTION IS NOT PREDETERMINED BY THE
FACT THAT THE OCCUPATION IS WITHIN THE SCOPE OF THE ACT BECAUSE IT HAS
A NECESSARY CONNECTION, IN COMMERCE, WITH AGRICULTURAL PRODUCTION. 
FN7 

AGRICULTURE, AS AN OCCUPATION, INCLUDES MORE THAN THE ELEMENTAL
PROCESS OF PLANTING, GROWING AND HARVESTING CROPS.  THERE ARE A HOST OF
INCIDENTAL ACTIVITIES WHICH ARE NECESSARY TO THAT PROCESS.  WHETHER A
PARTICULAR TYPE OF ACTIVITY IS AGRICULTURAL DEPENDS, IN LARGE MEASURE,
UPON THE WAY IN WHICH THAT ACTIVITY IS ORGANIZED IN A PARTICULAR
SOCIETY.  THE DETERMINATION CANNOT BE MADE IN THE ABSTRACT.  IN LESS
ADVANCED SOCIETIES THE AGRICULTURAL FUNCTION INCLUDES MANY TYPES OF
ACTIVITY WHICH, IN OTHERS, ARE NOT AGRICULTURAL.  THE FASHIONING OF
TOOLS, THE PROVISION OF FERTILIZER, THE PROCESSING OF THE PRODUCT, TO
MENTION ONLY A FEW EXAMPLES, ARE FUNCTIONS WHICH, IN SOME SOCIETIES,
ARE PERFORMED ON THE FARM BY FARMERS AS PART OF THEIR NORMAL
AGRICULTURAL ROUTINE.  ECONOMIC PROGRESS, HOWEVER, IS CHARACTERIZED BY
A PROGRESSIVE DIVISION OF LABOR AND SEPARATION OF FUNCTION.  TOOLS ARE
MADE BY A TOOL MANUFACTURER, WHO SPECIALIZES IN THAT KIND OF WORK AND
SUPPLIES THEM TO THE FARMER.  THE COMPOST HEAP IS REPLACED BY FACTORY
PRODUCED FERTILIZERS.  POWER IS DERIVED FROM ELECTRICITY AND GASOLINE
RATHER THAN SUPPLIED BY THE FARMER'S MULES.  WHEAT IS GROUND AT THE
MILL.  IN THIS WAY, FUNCTIONS WHICH ARE NECESSARY TO THE TOTAL ECONOMIC
PROCESS OF SUPPLYING AN AGRICULTURAL PRODUCT BECOME, IN THE PROCESS OF
ECONOMIC DEVELOPMENT AND SPECIALIZATION, SEPARATE AND INDEPENDENT
PRODUCTIVE FUNCTIONS OPERATED IN CONJUNCTION WITH THE AGRICULTURAL
FUNCTION BUT NO LONGER A PART OF IT.  THUS, THE QUESTION AS TO WHETHER
A PARTICULAR TYPE OF ACTIVITY IS AGRICULTURAL IS NOT DETERMINED BY THE
NECESSITY OF THE ACTIVITY TO AGRICULTURE NOR BY THE PHYSICAL SIMILARITY
OF THE ACTIVITY TO THAT DONE BY FARMERS IN OTHER SITUATIONS.  THE
QUESTION IS WHETHER THE ACTIVITY IN THE PARTICULAR CASE IS CARRIED ON
AS PART OF THE AGRICULTURAL FUNCTION OR IS SEPARATELY ORGANIZED AS AN
INDEPENDENT PRODUCTIVE ACTIVITY.  THE FARMHAND WHO CARES FOR THE
FARMER'S MULES OR PREPARES HIS FERTILIZER IS ENGAGED IN AGRICULTURE. 
BUT THE MAINTENANCE MAN IN A POWER PLANT  FN8  AND THE PACKER IN A
FERTILIZER FACTORY  FN9  ARE NOT EMPLOYED IN AGRICULTURE, EVEN IF THEIR
ACTIVITY IS NECESSARY TO FARMERS AND REPLACES WORK PREVIOUSLY DONE BY
FARMERS.  THE PRODUCTION OF POWER AND THE MANUFACTURE OF FERTILIZER ARE
INDEPENDENT PRODUCTIVE FUNCTIONS, NOT AGRICULTURE. 

IN THE ABSENCE OF A DETAILED DEFINITION OF AGRICULTURE WE SHOULD BE
COMPELLED TO DETERMINE WHETHER THE ACTIVITY CONCERNED IN THE PRESENT
CASE - THE DIVERSION, STORAGE AND DISTRIBUTION OF WATER FOR IRRIGATION
PURPOSES - IS CARRIED ON AS PART OF THE AGRICULTURAL FUNCTION OR IS SO
SEPARATELY ORGANIZED AND CONDUCTED AS TO BE TREATED AS AN INDEPENDENT,
NONAGRICULTURAL PRODUCTIVE FUNCTION.  FORTUNATELY, HOWEVER, THE FAIR
LABOR STANDARDS ACT PROVIDES A CAREFULLY CONSIDERED DEFINITION WHICH IS
OF SUBSTANTIAL AID IN HELPING US TO MAKE THAT DETERMINATION. 

THE DEFINITION IS CONTAINED IN SEC. 3(F) OF THE FAIR LABOR STANDARDS
ACT.  IT SAYS: 

"SEC. 3(F).  'AGRICULTURE' INCLUDES FARMING IN ALL ITS BRANCHES AND
AMONG OTHER THINGS INCLUDES THE CULTIVATION AND TILLAGE OF THE SOIL,
DAIRYING, THE PRODUCTION, CULTIVATION, GROWING, AND HARVESTING OF ANY
AGRICULTURAL OR HORTICULTURAL COMMODITIES (INCLUDING COMMODITIES
DEFINED AS AGRICULTURAL COMMODITIES IN SECTION 15(G) OF THE
AGRICULTURAL MARKETING ACT, AS AMENDED), THE RAISING OF LIVESTOCK,
BEES, FUR-BEARING ANIMALS, OR POULTRY, AND ANY PRACTICES (INCLUDING ANY
FORESTRY OR LUMBERING OPERATIONS) PERFORMED BY A FARMER OR ON A FARM AS
AN INCIDENT TO OR IN CONJUNCTION WITH SUCH FARMING OPERATIONS,
INCLUDING PREPARATION FOR MARKET, DELIVERY TO STORAGE OR TO MARKET OR
TO CARRIERS FOR TRANSPORTATION TO MARKET." 

AS CAN BE READILY SEEN, THIS DEFINITION HAS TWO DISTINCT BRANCHES. 
FIRST, THERE IS THE PRIMARY MEANING.  AGRICULTURE INCLUDES FARMING IN
ALL ITS BRANCHES.  CERTAIN SPECIFIC PRACTICES SUCH AS CULTIVATION AND
TILLAGE OF THE SOIL, DAIRYING, ETC., ARE LISTED AS BEING INCLUDED IN
THIS PRIMARY MEANING.  SECOND, THERE IS THE BROADER MEANING. 
AGRICULTURE IS DEFINED TO INCLUDE THINGS OTHER THAN FARMING AS SO
ILLUSTRATED.  IT INCLUDES ANY PRACTICES, WHETHER OR NOT THEMSELVES
FARMING PRACTICES, WHICH ARE PERFORMED EITHER BY A FARMER OR ON A FARM,
INCIDENTLY TO OR IN CONJUNCTION WITH "SUCH" FARMING OPERATIONS. 

DEALING WITH THESE TWO BRANCHES OF THE DEFINITION IN ORDER, IT IS
CLEAR, FIRST, THAT THE OCCUPATION IN WHICH THE COMPANY'S EMPLOYEES ARE
ENGAGED IS NOT FARMING.  THE COMPANY OWNS NO FARMS AND RAISES NO
CROPS.  IRRIGATION, STRICTLY DEFINED - THAT IS THE ACTUAL WATERING OF
THE SOIL - MAY NO DOUBT BE CALLED FARMING.  AND THE WORK OF THE FARMERS
IN SEEING TO IT THAT THE WATER RELEASED FROM THE COMPANY'S DITCHES IS
PROPERLY DISTRIBUTED TO THE GROWING PLANTS UNDOUBTEDLY IS INCLUDED IN
FARMING AS BEING PART OF THE PROCESS OF CULTIVATING AND TILLING THE
SOIL.  BUT THE SIGNIFICANT FACT IN THIS CASE IS THAT THIS WORK IS NOT
DONE BY THE COMPANY'S EMPLOYEES.  THERE IS A CLEAR AND DEFINITE
DIVISION OF FUNCTION.  THE DITCH COMPANY CARRIES THE WATER IN ITS OWN
CANALS TO THE LANDS OF THE FARMERS.  WHEN A FARMER DESIRES WATER SO
THAT HE CAN IRRIGATE HIS FIELDS HE NOTIFIES THE COMPANY.  ITS EMPLOYEES
THEN OPERATE THE HEADGATES, WHICH ARE LOCATED ON THE COMPANY'S CANALS
AND WHICH THE FARMERS ARE FORBIDDEN TO OPERATE, FN10  SO THAT THE
APPROPRIATE QUANTITY OF WATER CAN PASS OUT OF THE COMPANY'S CANALS AND
OFF THE COMPANY'S LAND INTO THE FARMER'S IRRIGATION DITCHES.  THE
RESPONSIBILITY OF THE COMPANY'S EMPLOYEES CEASES WHEN THEY SO RELEASE
THE WATER.  THE WATER IS SUPPLIED TO THE FARMER AT THE HEADGATES AND HE
TAKES IT OVER THERE AND USES IT, IN HIS OWN LATERALS, AS HE SEES FIT,
TO IRRIGATE HIS CROPS. 

THE DITCH COMPANY, THEN, IS NOT ENGAGED IN CULTIVATING OR TILLING THE
SOIL OR IN GROWING ANY AGRICULTURAL COMMODITY.  IT IS CONTENDED,
HOWEVER, THAT IT IS NEVERTHELESS ENGAGED IN FARMING BECAUSE OF THE USE,
IN THE DEFINITION, OF THE WORDS "PRODUCTION  ...  OF ANY AGRICULTURAL
... COMMODITIES" IN ADDITION TO THE WORDS CULTIVATION, TILLAGE,
HARVESTING, ETC.  SINCE PRODUCE IS DEFINED IN SEC. 3(J) OF THE ACT SO
AS TO INCLUDE, "FOR PURPOSES OF THIS ACT," ANY OCCUPATION NECESSARY TO
PRODUCTION, IT IS ARGUED THAT PRODUCTION OF AGRICULTURAL COMMODITIES
INCLUDES ANY OCCUPATION NECESSARY TO THE PRODUCTION OF AGRICULTURAL
COMMODITIES.  IT IS THUS ARGUED THAT IN THE CASE OF AGRICULTURE, AS
DISTINGUISHED FROM OTHER EXEMPTIONS, CONGRESS DID PROVIDE THAT THE
EXEMPTION SHOULD INCLUDE NOT ONLY THE OCCUPATION NAMED BUT ALSO ALL OF
THOSE OTHER OCCUPATIONS WHOSE WORK IS NECESSARY TO IT.    IF CONGRESS
INTENDED TO CONVEY THAT MEANING BY USING THE WORD PRODUCTION IN THE
DEFINITION OF AGRICULTURE, WE SHOULD, OF COURSE, GIVE THE DEFINITION
ITS INTENDED SCOPE.  BUT WE DO NOT "MAKE A FORTRESS OUT OF THE
DICTIONARY."  FN11  AND WE HAVE, THEREFORE, CONSISTENTLY REFUSED TO
PERVERT THE PROCESS OF INTERPRETATION BY MECHANICALLY APPLYING
DEFINITIONS IN UNINTENDED CONTEXTS.  LAWSON V. SUWANNEE S.S. CO., 336
U.S. 198(1949); ATLANTIC CLEANERS & DYERS V. UNITED STATES, 286 U.S.
427(1932).  IN THE PRESENT CASE, THE LEGISLATIVE HISTORY CONFIRMS WHAT
A NATURAL READING OF THE LANGUAGE OF THE AGRICULTURAL EXEMPTION WOULD
INDICATE - THE WORD PRODUCTION WAS NOT THERE USED IN THE ARTIFICIAL AND
SPECIAL SENSE IN WHICH IT WAS DEFINED IN SEC. 3(J).  CERTAINLY, IF IT
WERE MEANT IN THAT SENSE, IT WOULD MAKE SURPLUSAGE OF THE REMAINDER OF
THE CAREFULLY WROUGHT DEFINITION.  AND IT WOULD HARDLY HAVE BEEN
INNOCUOUSLY PLACED AMONG SUCH SPECIFIC TERMS AS "CULTIVATION,"
"TILLAGE," "GROWING," AND "HARVESTING." 

BUT WE NEED NOT SPECULATE ON THE CONGRESSIONAL MEANING.  THE HISTORY
OF THE USE OF THE WORD PRODUCTION IS CRYSTAL CLEAR.  IT WAS ADDED TO
THE DEFINITION OF AGRICULTURE IN ORDER TO TAKE CARE OF A SPECIAL
SITUATION - THE PRODUCTION OF TURPENTINE AND GUM ROSINS BY A PROCESS
INVOLVING THE TAPPING OF LIVING TREES.  THERE HAD BEEN INDICATIONS THAT
SUCH ACTIVITY WOULD NOT BE CONSIDERED AGRICULTURE, SINCE TURPENTINE IS
NEITHER CULTIVATED NOR GROWN.  FN12  AND A SPECIAL AMENDMENT, SEC.
15(G), HAD BEEN ADDED TO THE AGRICULTURAL MARKETING ACT SPECIFYING THAT
COMMODITIES SO PRODUCED WERE TO BE CONSIDERED AGRICULTURAL COMMODITIES
FOR THE PURPOSES OF THAT ACT.  FN13  TO INSURE THE INCLUSION OF THE
PROCESS WITHIN THE AGRICULTURAL EXEMPTION OF THE FAIR LABOR STANDARDS
ACT, THE WORD "PRODUCTION" WAS ADDED TO SEC. 3(F) IN CONJUNCTION WITH
THE WORDS "INCLUDING COMMODITIES DEFINED AS AGRICULTURAL COMMODITIES IN

IT IS UNNECESSARY TO DECIDE WHETHER, IN VIEW OF THIS HISTORY, THE
WORD PRODUCTION IN THE AGRICULTURAL EXEMPTION SHOULD BE LIMITED TO
THOSE SPECIFIC PRODUCTS DEFINED IN SEC. 15(G) OF THE AGRICULTURAL
MARKETING ACT OR SHOULD BE GIVEN ITS NORMAL MEANING.  THE ONLY QUESTION
HERE IS WHETHER THE WORD WAS USED IN THE SPECIAL EXPANDED MEANING
DEFINED IN SEC. 3(J) OF THE PRESENT ACT.  IT IS CLEAR THAT IT WAS NOT
USED IN THIS SPECIAL SENSE.  AND IT FOLLOWS THAT IT DOES NOT ENCOMPASS
THE WORK OF THE COMPANY'S EMPLOYEES WHO CANNOT BE SAID, IN ANY NORMAL
USE OF THE TERM, TO BE ENGAGED IN THE PRODUCTION OF AGRICULTURAL
COMMODITIES.  THEIR WORK IS NECESSARY TO AGRICULTURAL PRODUCTION, BUT
IT IS NOT PRODUCTION. 

THE WORK OF THE COMPANY'S EMPLOYEES IS NOT, THEN, FARMING.  BUT,
COMING TO THE SECOND BRANCH OF THE DEFINITION OF AGRICULTURE, IT IS
EQUALLY CLEAR THAT IT DOES CONSTITUTE A PRACTICE PERFORMED AS AN
INCIDENT TO OR IN CONJUNCTION WITH FARMING.  IF THE ACT EXEMPTED ALL
SUCH PRACTICES, THE COMPANY WOULD BE EXEMPT.  BUT THE EXEMPTION IS
LIMITED.  SUCH PRACTICES ARE EXEMPT ONLY IF THEY ARE PERFORMED BY A
FARMER OR ON A FARM.  FN15 

THIS LANGUAGE WAS CAREFULLY CONSIDERED BY CONGRESS.  AS ORIGINALLY
INTRODUCED, THE EXEMPTION COVERED SUCH PRACTICES ONLY IF PERFORMED BY A
FARMER.  ON THE FLOOR OF THE SENATE IT WAS OBJECTED THAT THIS WOULD
EXCLUDE THE THRESHING OF WHEAT OR OTHER FUNCTIONS NECESSARY TO THE
FARMER IF THOSE FUNCTIONS WERE NOT PERFORMED BY THE FARMER AND HIS
HANDS, BUT BY SEPARATE COMPANIES ORGANIZED FOR AND DEVOTED SOLELY TO
THAT PARTICULAR JOB.  FN16  TO TAKE CARE OF THAT SITUATION THE WORDS
"OR ON A FARM" WERE ADDED TO THE DEFINITION.  THUS, THE WHEAT THRESHING
COMPANIES, EVEN THOUGH THEY WERE SEPARATE ENTERPRISES, WERE INCLUDED IN
THE EXEMPTION BECAUSE THEIR WORK WAS INCIDENTAL TO FARMING AND WAS DONE
ON THE FARM.  FN17  IN THE FACE OF THIS CAREFUL USE OF LANGUAGE, WE ARE
REQUIRED TO LIMIT THE EXEMPTION AS CONGRESS INTENDED IT SHOULD BE
LIMITED, TO PRACTICES PERFORMED BY A FARMER OR ON A FARM.  IN THE
PRESENT CASE IT IS CLEAR THAT THE WORK OF THE COMPANY'S EMPLOYEES IS
DONE NEITHER ON A FARM OR BY FARMERS. 

CLEARLY, IT IS NOT DONE ON A FARM.  NOR, WE THINK, IS IT DONE "BY A
FARMER."  SINCE WE HAVE ALREADY SAID THAT THE COMPANY'S EMPLOYEES ARE
NOT ENGAGED IN FARMING, IT IS PERHAPS TOO OBVIOUS THAT THE WORK THAT
THEY DO IS NOT DONE BY FARMERS.  BUT AN ARGUMENT TO THE CONTRARY IS
MADE.  IT IS BASED ON THE FACT THAT THE COMPANY IS A MUTUAL ONE, OWNED
BY THE FARMERS WHOM IT SERVES.  IT IS ARGUED THAT THE COMPANY IS
THEREFORE MERELY A FORMAL CONDUIT OR AGENT, BY WHICH THE FARMERS
COOPERATIVELY OPERATE THEIR COMMON WATER SUPPLY SYSTEM AND
COOPERATIVELY EMPLOY THE MEN.  THE MEN ARE, THEREFORE, SAID TO BE
FARMERS BECAUSE THEY ARE SAID TO BE EMPLOYED BY FARMERS. 

EVEN IF IT WERE CONCEDED THAT THE EXEMPTION INCLUDES THE WORK OF
PERSONS WHO DO NO FARMING BUT ARE EMPLOYED BY FARMERS, IT STILL DOES
NOT INCLUDE THE COMPANY'S EMPLOYEES BECAUSE THEY ARE NOT, IN FACT, SO
EMPLOYED.  THERE IS A DIFFERENCE BETWEEN THE HIRING OF MUTUAL SERVANTS
BY A GROUP OF EMPLOYERS AND THE CREATION BY THEM OF A SEPARATE BUSINESS
ORGANIZATION, WITH ITS OWN OFFICERS, PROPERTY, AND BONDED INDEBTEDNESS,
WHICH IN TURN HIRES WORKING MEN.  THOSE WORKING MEN ARE IN NO REAL
SENSE EMPLOYEES OF THE SHAREHOLDERS OF THE ORGANIZATION.  THEY ARE
HIRED BY THE ORGANIZATION, FIRED BY THE ORGANIZATION, CONTROLLED AND
DIRECTED BY THE ORGANIZATION, AND PAID BY IT.  THE FACT THAT THE
ORGANIZATION IS A CORPORATE ONE ADDS TO THE PICTURE BUT IS NOT
CONTROLLING.  THE CONTROLLING FACT IS THAT THE COMPANY HAS BEEN SET UP
BY THE FARMERS AS AN INDEPENDENT ENTITY TO OPERATE AN INTEGRATED,
UNITARY WATER SUPPLY SYSTEM.  THE FUNCTION OF SUPPLYING WATER HAS THUS
BEEN DIVORCED BY THE FARMERS FROM THE FARMING OPERATION AND SET UP AS A
SEPARATE AND SELF-CONTAINED ACTIVITY IN WHICH THE FARMERS ARE
FORBIDDEN, BY THE COMPANY'S BY-LAWS, TO INTERFERE.  FN18  THOSE
EMPLOYED IN THAT ACTIVITY ARE EMPLOYED BY THE COMPANY, NOT BY THE
FARMERS WHO OWN THE COMPANY.  THE FACT THAT THE COMPANY IS NOT OPERATED
FOR PROFIT IS IMMATERIAL.  IT IS NONETHELESS THE EMPLOYER.  OF COURSE,
IF CONGRESS HAD INTENDED THE ABSENCE OF PROFIT TO BE MATERIAL AND HAD
PROVIDED THAT THE EMPLOYEES OF AGRICULTURAL COOPERATIVES SHOULD BE
EXEMPTED BECAUSE THEIR WORK IS DONE FOR THE BENEFIT OF THE FARMERS WHO
OWN THE COOPERATIVES, WE SHOULD HONOR THAT PROVISION.  BUT THE
LEGISLATIVE HISTORY OF THE EXISTING DEFINITION CLEARLY SHOWS THAT NO
SUCH RESULT WAS INTENDED.  FN19 

WE CONCLUDE THEREFORE THAT THE COURT OF APPEALS CORRECTLY DETERMINED
THAT THE FIELD EMPLOYEES OF THE COMPANY ARE NOT EXEMPT FROM THE
PROVISIONS OF THE FAIR LABOR STANDARDS ACT AS PERSONS EMPLOYED IN
AGRICULTURE.  FN20 

THERE REMAINS FOR CONSIDERATION THE BOOKKEEPER'S CASE.  THE COURT OF
APPEALS LIMITED ITS REVERSAL OF THE DISTRICT COURT TO THE FIELD
EMPLOYEES BECAUSE IT REGARDED THE BOOKKEEPER AS EXEMPT, IN ANY EVENT,
AS AN ADMINISTRATIVE EMPLOYEE.  WE NEED NOT DECIDE WHETHER IT ERRED IN
SO DOING, SINCE THE COMPANY IN THIS COURT DISCLAIMS - AS IT DID IN THE
DISTRICT COURT - ANY RELIANCE ON THE ADMINISTRATIVE EXEMPTION.  AND OUR
DISCUSSION WITH REGARD TO THE FIELD EMPLOYEES MAKES IT CLEAR THAT THE
COURT OF APPEALS DECISION IS, IN THE ABSENCE OF ANY CLAIM OF
ADMINISTRATIVE EXEMPTION, EQUALLY APPLICABLE TO THE BOOKKEEPER.  IT HAS
BEEN STIPULATED THAT HIS WORK IS A NECESSARY PART OF THE OPERATION OF
THE COMPANY'S WATER SUPPLY SYSTEM.  THE FACT THAT IT IS CLERICAL RATHER
THAN MANUAL IS IMMATERIAL.  BORDEN CO. V. BORELLA, 325 U.S. 679(1945). 
IT FOLLOWS THAT HIS CASE IS ON ALL FOURS WITH THAT OF THE FIELD WORKERS
AND THAT HE IS ENGAGED, AS THEY ARE, IN THE PRODUCTION OF GOODS FOR
COMMERCE AND IS NOT EXEMPT AS EMPLOYED IN AGRICULTURE.  THE JUDGMENT OF
THE COURT OF APPEALS, REVERSING THE DISTRICT COURT AND REMANDING THE
CASE TO IT, SHOULD, THEREFORE, BE TREATED AS APPLICABLE TO BOTH TYPES
OF EMPLOYEE. 

AS SO MODIFIED, THE JUDGMENT IS AFFIRMED. 

FN1  52 STAT. 1060, 29 U.S.C. SECS. 201-219. 

FN2  167 F.2D 911(1948). 

FN3  52 STAT. 1061, 29 U.S.C. SEC. 203(J). 

FN4  EMPHASIS ADDED. 

FN5  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 525(1942); ARMOUR & CO.
V. WANTOCK, 323 U.S. 126(1944); ROLAND CO. V. WALLING, 326 U.S. 657,
663(1946). 

FN6  "NECESSARY" UNDERSTATES THE CASE.  THE WATER SUPPLIED BY THE
COMPANY'S EMPLOYEES IS, IN THIS CASE, AN INDISPENSABLE PREREQUISITE FOR
AGRICULTURAL PRODUCTION.  CULTIVATION BEGAN ONLY WITH IRRIGATION AND IT
WILL END IF THE IRRIGATION CEASES.  UNDER SUCH CIRCUMSTANCES, THERE CAN
BE NO DOUBT OF THE IMMEDIACY OF THE CONNECTION BETWEEN THE PRODUCTION,
BY THE FARMERS, FOR COMMERCE AND THE WORK OF THE COMPANY'S FIELD
EMPLOYEES IN PROVIDING WATER FOR IRRIGATION. 

FN7  THE FALLACY OF THE NOTION THAT AN EXEMPTION CARRIES WITH IT ALL
OCCUPATIONS WHOSE NEXUS WITH INTERSTATE COMMERCE IS THE EXEMPTED
OCCUPATION IS DEMONSTRATED BY AUTHORITY AS WELL AS BY LOGIC.  IN
BOUTELL V. WALLING, 327 U.S. 463(1946), FOR EXAMPLE, THE QUESTION WAS
WHETHER MEN WHO WERE EMPLOYED BY A SERVICE COMPANY TO SERVICE TRUCKS
CARRYING GOODS IN INTERSTATE COMMERCE WERE EXEMPT, UNDER SEC. 13(B)(1),
AS THE EMPLOYEES OF AN INTERSTATE CARRIER SUBJECT TO REGULATION BY THE
INTERSTATE COMMERCE COMMISSION.  THEIR ONLY CONNECTION WITH COMMERCE
WAS THEIR WORK ON THE TRUCKS OF THE INTERSTATE CARRIER.  THE COURT
DIVIDED AS TO WHETHER THE EMPLOYEES WERE THEMSELVES EMPLOYED BY THE
CARRIER WITHIN THE MEANING OF THE MOTOR CARRIER ACT AND, THEREFORE,
EXEMPT.  BUT THERE WAS NO SUGGESTION IN EITHER OF THE OPINIONS IN THE
CASE THAT, IF NOT EMPLOYED BY THE CARRIER, THEY WERE NEVERTHELESS
EXEMPT BECAUSE THEIR ONLY CONNECTION WITH INTERSTATE COMMERCE WAS
THROUGH AN ENTERPRISE WHICH WAS ITSELF EXEMPT. 

IN ONLY ONE CASE BROUGHT TO OUR ATTENTION WAS A CONTENTION PRESENTED
SIMILAR TO THAT MADE HERE.  IN DIZE V. MADDRIX, 144 F.2D 584(1944),
AFF'D, 324 U.S. 697(1945), THE LOCAL MANUFACTURE OF BOXES WAS HELD TO
BE WITHIN THE ACT BECAUSE THE BOXES WERE USED BY FISHERMEN TO SHIP
THEIR FISH IN INTERSTATE COMMERCE.  THE FISHERMEN WERE EXEMPT UNDER A
SPECIFIC EXEMPTION IN THE ACT COVERING FISHING, AND IT WAS ARGUED THAT
THE MANUFACTURER OF THE BOXES SHOULD THEREFORE BE EXEMPT AS "FISHING"
BECAUSE ITS ONLY CONNECTION WITH COMMERCE WAS THROUGH FISHING.  THE
ARGUMENT WAS REJECTED SUMMARILY. 

FN8  MEEKER COOPERATIVE LIGHT & POWER ASSN. V. PHILLIPS, 158 F.2D
698(1946). 

FN9  MCCOMB V. SUPER-A FERTILIZER WORKS, 165 F.2D 824(1948). 

FN10  ARTICLE VII, SEC. 5 OF THE COMPANY'S BY-LAWS PROVIDES AS
FOLLOWS: 

"ALL HEADGATES IN THE COMPANY'S CANALS SHALL BE OPERATED AND
MAINTAINED BY AND UNDER THE EXCLUSIVE CONTROL OF THIS COMPANY AND NO
STOCKHOLDER OR ANY OTHER PERSON SHALL HAVE THE RIGHT TO INTERFERE WITH,
RECONSTRUCT, REPAIR, CHANGE, OR ALTER, OPEN OR CLOSE SAID HEADGATES OR
ANY OF THEM IN ANY MANNER WHATSOEVER." 

FN11  L. HAND, J., IN CABELL V. MARKHAM, 148 F.2D 737, 739(1945),
AFF'D, 326 U.S. 404(1945). 

FN12  SEE S. REP. NO. 230, 71ST CONG., 2D SESS. (1930). 

FN13  46 STAT. 1550, 12 U.S.C. SEC. 1141J (G).  THIS LANGUAGE
ORIGINATED IN S. 2354, 71ST CONGRESS.  THAT BILL WAS REPORTED TO THE
SENATE (S. REP. NO. 230) AND PASSED.  72 CONG. REC. 7016(1930).  IT DID
NOT COME TO A VOTE IN THE HOUSE.  ITS SUBSTANCE WAS ADDED BY THE SENATE
TO H.R. 16836, AN AMENDMENT TO THE OLEOMARGARINE TAX LAWS, AND IN THIS
FORM BECAME LAW.  SEE 74 CONG. REC. 6688, 7196(1931). 

FN14  H.R. REP. NO. 2738, 75TH CONG., 3D SESS., P. 2.  THE WORD
"PRODUCTION" WAS NOT ACTUALLY CONTAINED IN EITHER THE HOUSE OR SENATE
BILLS AS ORIGINALLY PASSED.  THE SENATE BILL, S. 2475, 75TH CONG., 1ST
SESS., AS PASSED, CONTAINED THE REFERENCE TO SEC. 15(G) OF THE
AGRICULTURAL MARKETING ACT IN THE FOLLOWING WAY:  "  ...  'AGRICULTURE'
...  FURTHER INCLUDES THE DEFINITION CONTAINED IN SUBDIVISION (G) OF
7659(1937).  THIS LANGUAGE WAS FAULTY, SINCE THE SECTION REFERRED TO
WAS NOT A DEFINITION OF AGRICULTURE BUT OF AN AGRICULTURAL COMMODITY. 
THE LANGUAGE WAS RETAINED IN THIS FORM WHEN THE BILL WAS FIRST DEBATED
IN THE HOUSE.  SEE 82 CONG. REC. 1580, 1690(1937).  THE HOUSE VOTED TO
RECOMMIT THE BILL.  ID. AT 1835.  IN COMMITTEE, THE DEFINITION OF
AGRICULTURE WAS COMPLETELY REDRAFTED AND THE REFERENCE TO THE
AGRICULTURAL MARKETING ACT OMITTED.  SEE H.R. REP. NO. 2182, 75TH
CONG., 3D SESS. (1938).  THE BILL PASSED THE HOUSE IN THIS FORM.  IN
CONFERENCE, IT WAS AGREED THAT THE HOUSE VERSION OF THE DEFINITION OF
AGRICULTURE SHOULD BE ADOPTED, WITH THREE STATED EXCEPTIONS.  ONLY ONE
OF THE THREE IS RELEVANT HERE - THE REINSERTION OF THE REFERENCE TO THE
AGRICULTURAL MARKETING ACT.  THE WORD "PRODUCTION" WAS ADDED IN
CONJUNCTION WITH THAT REFERENCE AND WAS OBVIOUSLY USED ONLY TO MAKE THE
REFERENCE GRAMMATICALLY CORRECT.  THE COMMITTEE REPORT STATES THE
CHANGE IN THIS WAY:  "THE PRODUCTION OF COMMODITIES DEFINED AS
AGRICULTURAL COMMODITIES IN SECTION 15(G) OF THE AGRICULTURAL MARKETING
ACT IS INCLUDED WITHIN THE DEFINITION OF AGRICULTURE  ...  "  H.R. REP.
NO. 2738, 75TH CONG., 3D SESS., P. 29(1938). 

FN15  ALTHOUGH NOT RELEVANT HERE, THERE IS THE ADDITIONAL REQUIREMENT
THAT THE PRACTICES BE INCIDENTAL TO "SUCH" FARMING.  THUS, PROCESSING
ON A FARM OF COMMODITIES PRODUCED BY OTHER FARMERS IS INCIDENTAL TO OR
IN CONJUNCTION WITH THE FARMING OPERATION OF THE OTHER FARMERS AND NOT
INCIDENTAL TO OR IN CONJUNCTION WITH THE FARMING OPERATION OF THE
FARMER ON WHOSE PREMISES THE PROCESSING IS DONE.  SUCH PROCESSING IS,
THEREFORE, NOT WITHIN THE DEFINITION OF AGRICULTURE.  BOWIE V.
GONZALEZ, 117 F.2D 11(1941).    FN16  "MR. TYDINGS.  ...  IN THE CASE I
VISUALIZE  ...  THE FARMER IS NOT PERFORMING THE SERVICE.  THE MAN TO
WHOM I REFER MAKES A BUSINESS OF DOING NOTHING BUT THRESHING.  HE OWNS
HIS OWN MACHINE, AND HAULS IT FROM FARM TO FARM, AND ENTERS INTO
CONTRACTS WITH FARMERS TO THRESH THEIR CROPS; THE POINT BEING THAT
WHILE HE IS DEALING WITH AN AGRICULTURAL COMMODITY, HE IS NOT
NECESSARILY A FARMER, AND HE IS NOT DOING WORK ORDINARILY DONE BY A
FARMER. 

"MR. BORAH.  HE IS DOING THE EXACT WORK WHICH THE FARMER DID BEFORE
HE TOOK IT UP.    "MR. TYDINGS.  THAT IS TRUE; BUT I DO NOT THINK THE
BILL IS DRAWN IN SUFFICIENT DETAIL TO BRING THE MAN TO WHOM I REFER
UNDER ITS PROVISIONS OF EXEMPTION."  81 CONG. REC. 7653(1937).  SEE
ALSO THE COMMENTS OF SENATOR BONE, ID. AT 7659. 

FN17  81 CONG. REC. 7888(1937). 

FN18  SEE N. 10, SUPRA. 

FN19  THE DEBATE IN BOTH HOUSES SHOWS A CLEAR AWARENESS THAT THE
EMPLOYEES OF FARMERS COOPERATIVE ASSOCIATIONS WOULD NOT BE EXEMPTED AS
EMPLOYEES OF FARMERS.  AT VARIOUS TIMES AMENDMENTS WERE OFFERED, AND
ADOPTED, EXEMPTING THE EMPLOYEES OF CERTAIN TYPES OF COOPERATIVES.  SEE
81 CONG. REC. 7947(1937), 82 CONG. REC. 1783(1937).  ALL SUCH SPECIAL
EXEMPTIONS WERE, HOWEVER, OMITTED FROM THE BILL AS IT FINALLY BECAME
LAW.  SEE ALSO INTERPRETATIVE BULLETIN, ISSUED BY THE ADMINISTRATOR,
WAGE & HOUR DIVISION, 29 C.F.R. 1947 SUPP., SECS. 780.81, 780.82. 

FN20  WHILE IT LACKS RELEVANCE TO THE QUESTION OF CONGRESSIONAL
INTENTION IN 1938, WE MAY NOTE THAT THE PRECISE QUESTION HERE INVOLVED
WAS DISCUSSED AT LENGTH ON THE SENATE FLOOR IN 1946 IN CONNECTION WITH
CERTAIN AMENDMENTS TO THE FAIR LABOR STANDARDS ACT.  IT WAS CLEARLY
STATED, WITHOUT OBJECTION, THAT EMPLOYEES OF AN IRRIGATION COMPANY
WHICH SUPPLIED WATER TO FARMERS WERE, LIKE THE EMPLOYEES OF A POWER
COMPANY WHICH SUPPLIES ELECTRICITY TO FARMERS, NOT EXEMPT AS EMPLOYED
IN AGRICULTURE.  92 CONG. REC. 2318-2319(1946). 

MR. JUSTICE FRANKFURTER, CONCURRING. 

BOTH IN THE EMPLOYMENTS WHICH THE FAIR LABOR STANDARDS ACT COVERS AND
IN THE EXEMPTIONS IT MAKES, THE CONGRESS HAS CAST UPON THE COURTS THE
DUTY OF MAKING DISTINCTIONS THAT OFTEN ARE BOUND TO BE SO NICE AS TO
APPEAR ARBITRARY IN RELATION TO EACH OTHER.  A SPECIFIC SITUATION, LIKE
THAT PRESENTED IN THIS CASE, PRESENTS A PROBLEM FOR CONSTRUCTION WHICH
MAY WITH NEARLY EQUAL REASON BE RESOLVED ONE WAY RATHER THAN ANOTHER. 
EXCEPT WHEN A CONFLICT BETWEEN COURTS OF APPEALS REQUIRES SETTLEMENT BY
THIS COURT, IT DOES NOT SEEM TO ME VERY PROFITABLE TO BRING THE
INDIVIDUAL CASES HERE FOR ADJUDICATION.  BUT SINCE THIS CASE IS HERE IT
HAS TO BE DECIDED.  THE NATURE OF THE PROBLEM BEING WHAT IT IS, I
ACQUIESCE IN THE JUDGMENT THAT COMMENDS ITSELF TO THE MAJORITY OF MY
BRETHREN. 

MR. JUSTICE JACKSON, DISSENTING. 

IF EMPLOYEES OPERATING THESE IRRIGATION WORKS ARE SO NECESSARY TO THE
RAISING OF CROPS DESTINED FOR INTERSTATE COMMERCE THAT THEY ARE
"PRODUCING GOODS FOR COMMERCE" WITHIN THE FAIR LABOR STANDARDS ACT, I
CANNOT AGREE THAT THEY ARE NOT "EMPLOYED IN AGRICULTURE" WITHIN ITS
EXEMPTIONS. 

IT IS ADMITTED THAT AS A SEPARATE ENTERPRISE THIS HANDLING OF
IRRIGATION WATER DOES NOT BRING THESE EMPLOYEES WITHIN THE ACT
REGULATING INTERSTATE COMMERCE, BECAUSE THE WATER IS CAPTURED, STORED,
TRANSMITTED, DELIVERED AND CONSUMED SOLELY WITHIN ONE STATE.  THE
REASONING BY WHICH THEY ARE NEVERTHELESS BROUGHT UNDER THE ACT IS THIS:
TO DELIVER WATER ON ARID LANDS IS SO INSEPARABLE FROM AGRICULTURE
THEREON THAT IT IS TO PRODUCE GOODS, THAT IS, AGRICULTURAL CROPS, FOR
COMMERCE. 

HOWEVER, 29 U.S.C. SEC. 213(A)(6) EXEMPTS INDIVIDUALS "EMPLOYED IN
AGRICULTURE."  IT WOULD SEEM LOGICAL THAT ONE WHO IS PRODUCING
AGRICULTURAL PRODUCTS FOR COMMERCE IS "EMPLOYED IN AGRICULTURE."  BUT
ACCORDING TO THE COURT HE IS NOT.  THE IRRIGATION ACTIVITY SEEMS
ENDOWED WITH SOME ESOTERIC DUPLICITY NOT APPARENT ON ITS FACE.  WHEN WE
READ 29 U.S.C. SEC. 206 OR SEC. 207, THE IRRIGATOR IS PRODUCING CROPS
BECAUSE HIS ACTIVITY IS INSEPARABLE FROM CROP PRODUCTION; BUT WHEN WE
READ ON A HALF-DOZEN SECTIONS AND GET TO 29 U.S.C. SEC. 213(A)(6), THE
IRRIGATION HAS BEEN CONVERTED INTO A DISTINCT AND DISCONNECTED
ENTERPRISE. 

THIS PARADOX IS ATTRIBUTED TO THE DEFINITION OF AGRICULTURE IN 29
U.S.C. SEC. 203(F), WHICH IS SAID TO MAKE A DISTINCTION BETWEEN
AGRICULTURAL PRODUCTION "IN A NORMAL SENSE" AND THE SAME THING "IN THE
SPECIAL SENSE" OF SEC. 3(J) OF THE STATUTE, 29 U.S.C. SEC. 203(J). 
HOWEVER, ITS TEXT AND HISTORY SEEM TO SHOW THAT THE CONGRESSIONAL
PURPOSE WAS NOT TO MAKE THE AGRICULTURAL EXEMPTION LESS COMPREHENSIVE
THAN "NORMAL" AGRICULTURAL OPERATIONS BUT TO MAKE CERTAIN THAT NOTHING
CONNECTED WITH FARMING REMAINED SUBJECT TO THE ACT.  IT EXEMPTED "ANY
PRACTICES  ...  PERFORMED BY A FARMER OR ON A FARM AS AN INCIDENT TO OR
IN CONJUNCTION WITH SUCH FARMING OPERATIONS."  THUS THE FARM EXEMPTION
DID NOT END AT THE LINE FENCE. 

THIS IRRIGATION SEEMS TO ME TO BE "PERFORMED BY A FARMER" AND HENCE,
BY DEFINITION, PART OF THE OPERATION OF AGRICULTURE.  CERTAINLY THE
AGRICULTURAL EXEMPTION IS NOT LOST BECAUSE FARMERS POOL THEIR CAPITAL
THROUGH A MUTUAL, NONPROFIT CORPORATION FOR NO OTHER PURPOSE WHATEVER
THAN TO CARRY WATER TO THEIR OWN ARID LANDS TO MAKE IT POSSIBLE TO
PRODUCE CROPS.  THE ONLY PURPOSE OF THE CORPORATE FORM IS TO LIMIT
INDIVIDUAL LIABILITY FOR A PROJECT WHICH IS SUBSIDIARY TO EACH FARMER'S
MAIN ENTERPRISE BUT WHICH IS BEYOND THE MEANS OR DEMANDS OF ANY OF THEM
AS INDIVIDUALS.  ONLY THE LANDOWNERS CAN BECOME STOCKHOLDERS; ONLY THE
STOCKHOLDERS CAN BECOME WATER USERS, AND THE OPERATING COSTS AND
CAPITAL CHARGES ARE MET BY ASSESSING THEM IN PROPORTION TO THEIR WATER
BENEFITS.  EMPLOYEES ENGAGED IN THE WATER OPERATION WOULD BE ON A QUITE
DIFFERENT FOOTING IF IT WERE A WATER COMPANY SELLING WATER TO THE
PUBLIC OR THE FARMER FOR PROFIT. 

IF, AS THE COURT HOLDS, THESE EMPLOYEES ARE ENGAGED IN PRODUCTION OF
AGRICULTURAL CROPS FOR COMMERCE, I DO NOT SEE HOW IT CAN HOLD THAT THEY
ARE NOT ENGAGED IN AGRICULTURE.  IF THE COURT COULD SAY "TO BE OR NOT
TO BE:  THAT IS THE QUESTION," IT MIGHT REASONABLY ANSWER IN SUPPORT OF
EITHER SIDE.  BUT HERE THE COURT TELLS US THAT THE REAL SOLUTION OF
THIS DILEMMA IS "TO BE" AND "NOT TO BE" AT THE SAME TIME.  WHILE THIS
IS A UNIQUE CONTRIBUTION TO THE LITERATURE OF STATUTORY CONSTRUCTION, I
CAN ONLY REGRET THE GREAT LOSS TO THE LITERATURE OF THE DRAMA THAT THIS
POSSIBILITY WAS OVERLOOKED BY THE BARD OF AVON.  IT WILL PROBABLY NOW
BE AS GREAT A SURPRISE TO THE PROPONENTS OF THE AGRICULTURAL EXEMPTION
AS IT WOULD HAVE BEEN TO SHAKESPEARE, HAD IT BEEN SUGGESTED TO HIM. 
..END :





















GIBBS V. BURKE, 337 U.S. 773 


NO. 418.  ARGUED APRIL 21-22, 1949.  - DECIDED JUNE 27, 1949.  -
REVERSED. 


PETITIONER, A MAN IN HIS THIRTIES, WAS TRIED AND CONVICTED IN A
PENNSYLVANIA STATE COURT FOR LARCENY, AND WAS SENTENCED TO IMPRISONMENT
FOR 2 1/2 TO 5 YEARS.  HE CONDUCTED HIS OWN DEFENSE, APPOINTMENT OF
COUNSEL HAVING BEEN NEITHER REQUESTED BY PETITIONER NOR OFFERED BY THE
COURT.  AT THE TRIAL, CONSIDERABLE HEARSAY AND OTHERWISE INCOMPETENT
EVIDENCE PREJUDICIAL TO PETITIONER WAS ADMITTED; THE PROSECUTING
WITNESS, BEING RECALLED FOR FURTHER CROSS-EXAMINATION, WAS MADE A
WITNESS FOR PETITIONER, TO THE LATTER'S DETRIMENT; PETITIONER WAS
PREVENTED FROM PROVING A FACT CLEARLY RELEVANT TO HIS DEFENSE; AND THE
TRIAL JUDGE, ADVISING PETITIONER OF HIS PRIVILEGE AGAINST SELF
INCRIMINATION, MADE REFERENCE IN THE PRESENCE OF THE JURY TO
PETITIONER'S CRIMINAL RECORD.  PETITIONER'S SUBSEQUENT APPLICATION TO
THE STATE SUPREME COURT FOR A WRIT OF HABEAS CORPUS, CLAIMING A DENIAL
OF FEDERAL CONSTITUTIONAL RIGHT ON HIS TRIAL, WAS DENIED.  HELD: 

1.  THE FEDERAL QUESTION WAS ADEQUATELY RAISED, AND THE CASE IS
PROPERLY CONSIDERED HERE ON ITS MERITS.  P. 779. 

(A)  RELIANCE ON THE SIXTH RATHER THAN THE FOURTEENTH AMENDMENT IN
THE HABEAS CORPUS PETITION WAS NOT FATAL, SINCE METICULOUSNESS IN
PROCEDURAL ALLEGATIONS IS NOT ESSENTIAL IN A HABEAS CORPUS PROCEEDING. 
P. 779. 

(B)  IT APPEARS THAT HABEAS CORPUS WAS A PROPER METHOD OF TESTING THE
CONSTITUTIONALITY OF THE CONVICTION AND THAT IT WAS WITHIN THE ORIGINAL
JURISDICTION OF THE PENNSYLVANIA SUPREME COURT.  P. 779. 

2.  THE FACTS OF THE CASE, PARTICULARLY THE OCCURRENCES AT THE TRIAL,
SUFFICIENTLY SHOW THAT PETITIONER WAS HANDICAPPED BY LACK OF COUNSEL TO
SUCH AN EXTENT THAT HE WAS DENIED A FAIR TRIAL CONTRARY TO THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 774-778, 780-782. 

GIBBS V. BURKE, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

THE SUPREME COURT OF PENNSYLVANIA, IN AN ORIGINAL PROCEEDING, DENIED
PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS.  THIS COURT
GRANTED CERTIORARI, 335 U.S. 867, AND APPOINTED A MEMBER OF THE BAR OF
THIS COURT TO SERVE AS COUNSEL FOR THE PETITIONER.  335 U.S. 895. 
REVERSED AND REMANDED, P. 782. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES THE QUESTION WHETHER, UNDER THE CIRCUMSTANCES OF
PETITIONER'S TRIAL FOR LARCENY IN A STATE COURT WITHOUT COUNSEL,
PENNSYLVANIA DEPRIVED HIM OF A FEDERAL CONSTITUTIONAL RIGHT PROTECTED
BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

PETITIONER, A MAN IN HIS THIRTIES, WAS ARRESTED IN PENNSYLVANIA IN
1947 FOR THE LARCENY OF CERTAIN CLOTHING AND OTHER PERSONAL EFFECTS
ALLEGEDLY BELONGING TO ONE JAMES BLADES.  UPON THE RETURN OF AN
INDICTMENT HE PLEADED NOT GUILTY, WAS TRIED BEFORE A JURY WHICH FOUND
HIM GUILTY, AND WAS SENTENCED TO A TERM OF TWO AND ONE-HALF TO FIVE
YEARS IN THE PENITENTIARY.  THE RECORD SHOWS NEITHER A REQUEST FOR
COUNSEL BY THE PETITIONER NOR AN OFFER OF COUNSEL BY THE COURT. 
PETITIONER CONDUCTED HIS OWN DEFENSE. 

ON MAY 24, 1948, GIBBS FILED IN THE SUPREME COURT OF PENNSYLVANIA A
PETITION FOR HABEAS CORPUS IN WHICH HE ALLEGED HIS ARREST, TRIAL,
CONVICTION AND SENTENCE, AND IN WHICH HE ALSO STATED THAT HE "WAS
DENIED COUNSEL AND THROUGH IGNORANCE OF LAW AND FACT WAS FORCED TO ACT
AS HIS OWN COUNSEL" AND THAT HE "WAS DENIED HIS CONSTITUTIONAL RIGHTS
AS SET FORTH IN THE TEN ORIGINAL AMENDMENTS, ARTICLE VI."  UPON THE
ISSUANCE OF A RULE TO SHOW CAUSE, RESPONDENT ANSWERED, ADMITTING THE
FORMAL ALLEGATIONS AND THE FACT OF TRIAL AND SENTENCE, BUT ALLEGING THE
FOLLOWING CONCERNING THE DENIAL OF RIGHT TO COUNSEL:  "THE TRANSCRIPT
OF THE NOTES OF TESTIMONY TAKEN IN THE MATTER DOES NOT DISCLOSE THAT
THE RELATOR DEMANDED COUNSEL NOR REQUESTED THAT COUNSEL BE APPOINTED TO
REPRESENT HIM.  ...  IT IS ALSO AVERRED BY WAY OF ANSWER THAT THE
RELATOR'S EXAMINATION OF WITNESSES AND QUESTIONS ASKED DURING THE
COURSE OF THE TRIAL FULLY DISCLOSED HIS FAMILIARITY WITH LEGAL PROCESS
IN THE CRIMINAL COURTS."  THE ANSWER ALSO ATTACHED A TRANSCRIPT OF THE
PROCEEDINGS AT THE TRIAL AND A TRANSCRIPT OF PETITIONER'S CRIMINAL
RECORD.  IT SHOWED EIGHT CONVICTIONS AND NINE ACQUITTALS, DISCHARGES,
AND NO TRUE BILLS.  ON JULY 6, 1948, THE SUPREME COURT OF PENNSYLVANIA
DENIED THE WRIT.  AS THE ALLEGATIONS OF THE PETITION RAISED GRAVE
DOUBTS AS TO WHETHER PETITIONER HAD BEEN ACCORDED DUE PROCESS IN HIS
TRIAL, WE GRANTED THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND
THE PETITION FOR A WRIT OF CERTIORARI.  335 U.S. 867. 

JAMES BLADES, THE PROSECUTING WITNESS, MRS. LAFIELD, HIS MOTHER,
CONSTABLE FLEMING, THE ARRESTING OFFICER, AND JAMES SILVERSTEIN, A
SECONDHAND DEALER, TESTIFIED FOR THE STATE.  BRIEFLY SUMMARIZED, THEIR
TESTIMONY TENDED TO PROVE THAT PETITIONER CAME TO BLADES' HOME ON THE
MORNING OF THE ALLEGED THEFT, LOOKED IN BLADES' ROOM, WHERE THE STOLEN
ARTICLES WERE IN PLAIN VIEW, AND, FINDING BLADES ABSENT, DEPARTED. 
WHEN BLADES RETURNED HOME THAT DAY HE NOTICED THAT THE ARTICLES WERE
MISSING FROM HIS ROOM AND, UPON LEARNING FROM HIS MOTHER THAT GIBBS HAD
BEEN THERE, HE NOTIFIED THE POLICE.  HE AND CONSTABLE FLEMING FOUND
SOME OF THE MISSING ARTICLES IN A PAWNSHOP AND FOUND THE PETITIONER IN
A TAPROOM WEARING BLADES' HAT AND WATCH.  LATER BLADES' WALLET WAS
FOUND IN THE JAIL CELL IN WHICH PETITIONER WAS INCARCERATED. 
SILVERSTEIN, THE SECONDHAND DEALER IN THE PAWNSHOP, TESTIFIED THAT
GIBBS HAD BROUGHT THE MISSING CLOTHING IN AND HAD SOLD THEM TO HIM. 

PETITIONER, BY MEANS OF CROSS-EXAMINATION, SOUGHT TO ESTABLISH THAT
THE ARTICLES HAD BEEN TAKEN, AND SOME OF THEM SOLD, PURSUANT TO AN
UNDERSTANDING BETWEEN HIM AND BLADES. 

SEVERAL EVENTS OCCURRING AT THE TRIAL ARE PERTINENT TO PETITIONER'S
CLAIM THAT FAILURE TO APPOINT COUNSEL VIOLATED THE FEDERAL
CONSTITUTION.  (1) CONSIDERABLE INADMISSIBLE HEARSAY AND OTHERWISE
INCOMPETENT EVIDENCE WAS ALLOWED TO GO IN WITHOUT OBJECTION BY GIBBS. 
FN1  (2) WHEN PETITIONER RECALLED THE PROSECUTING WITNESS BLADES FOR
FURTHER CROSS-EXAMINATION, THE TRIAL JUDGE ACCEPTED THE PROSECUTOR'S
SUGGESTION AND MADE BLADES THE PETITIONER'S WITNESS FOR THE PURPOSE OF
THE UNFAVORABLE TESTIMONY THEN ELICITED.  FN2  THUS HE MADE THIS
TESTIMONY BINDING ON THE PETITIONER ALTHOUGH THE PENNSYLVANIA RULE
WOULD SEEM TO BE THAT AN ADVERSE WITNESS CAN BE SO EXAMINED AND YET
REMAIN THE WITNESS OF THE OPPOSING PARTY.  FN3  (3) ALTHOUGH, AS WE
HAVE ALREADY NOTED, PETITIONER ATTEMPTED TO DEFEND HIMSELF ON THE
GROUND THAT HE TOOK AND SOLD THE ARTICLES PURSUANT TO AN AGREEMENT WITH
THE PROSECUTING WITNESS, HE WAS PREVENTED FROM PROVING A FACT CLEARLY
RELEVANT TO THAT DEFENSE,  FN4  I.E., THAT BLADES HAD PREVIOUSLY MADE A
BASELESS CRIMINAL CHARGE AGAINST HIM UNDER SIMILAR CIRCUMSTANCES N5. 
(4) THE TRIAL JUDGE ALSO ADVISED PETITIONER IN THE PRESENCE OF THE
JURY, SO FAR AS THE RECORD SHOWS, AS TO HIS OPPORTUNITY TO AVAIL
HIMSELF OF THE PRIVILEGE AGAINST SELF-INCRIMINATION WHICH WAS HIS UNDER
PENNSYLVANIA LAW.  IN DOING SO HE MADE REFERENCE TO POSSIBLE PAST
CONVICTIONS.  FN6  SO TO REQUIRE HIM TO CLAIM HIS CONSTITUTIONAL
SAFEGUARD IN THE PRESENCE OF THE JURY WAS, PETITIONER CLAIMS, A
VIOLATION OF PENNSYLVANIA LAW.  CF. PHILADELPHIA V. CLINE, 158 PA.
SUPER.  179, 185, 44 A.2D 610, 613; COMMONWEALTH V. VALEROSO, 273 PA.
213, 116 A. 828.  RESPONDENT DOES NOT CLAIM OTHERWISE.  THE INFORMATION
GIVEN BY THE JUDGE AS TO PAST CONVICTIONS COULD HAVE BEEN GIVEN BY A
LAWYER TO THE PETITIONER BEYOND THE JURY'S HEARING.  (5) FINALLY, WHEN
SENTENCING PETITIONER, THE JUDGE USED LANGUAGE WHICH, IT IS CLAIMED,
EVINCED A HOSTILE AND THOROUGHLY UNJUDICIAL ATTITUDE.  FN7 

TWO PROCEDURAL POINTS REQUIRE BUT BRIEF ATTENTION.  THE FEDERAL
QUESTION WAS ADEQUATELY IF INARTISTICALLY RAISED IN THE PETITION FOR A
WRIT OF HABEAS CORPUS.  WE CONSIDER INSIGNIFICANT UNDER THESE
CIRCUMSTANCES THE FACT THAT PETITIONER CITED THE SIXTH RATHER THAN THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION.  FN8  METICULOUS INSISTENCE
UPON REGULARITY IN PROCEDURAL ALLEGATIONS IS FOREIGN TO THE PURPOSE OF
HABEAS CORPUS.  FN9  THE STATE DOES NOT CONTEST THE PROPRIETY OF A
CONSIDERATION OF THE CASE ON ITS MERITS.  FN10  THUS IT APPARENTLY
CONCEDES THAT HABEAS CORPUS WAS A PROPER METHOD OF TESTING THE
CONSTITUTIONALITY OF THE CONVICTION AND THAT IT WAS WITHIN THE ORIGINAL
JURISDICTION OF THE SUPREME COURT OF PENNSYLVANIA.  FN11 

SINCE IT IS CLEAR THAT A FAILURE TO REQUEST COUNSEL DOES NOT
CONSTITUTE A WAIVER WHEN THE DEFENDANT DOES NOT KNOW OF HIS RIGHT TO
COUNSEL, UVEGES V. PENNSYLVANIA, 335 U.S. 437, WE PROCEED TO THE
MERITS.  WE CONSIDER THIS CASE ON THE THEORY UPHELD IN BETTS V. BRADY,
316 U.S. 455, THAT THE CONSTITUTION DOES NOT GUARANTEE TO EVERY PERSON
CHARGED WITH A SERIOUS CRIME IN A STATE COURT THE RIGHT TO THE
ASSISTANCE OF COUNSEL REGARDLESS OF THE CIRCUMSTANCES.  BETTS V. BRADY
REJECTED THE CONTENTION THAT THE FOURTEENTH AMENDMENT AUTOMATICALLY
AFFORDED SUCH PROTECTION.  IN SO DOING, HOWEVER, IT DID NOT, OF COURSE,
HOLD OR INTIMATE THAT COUNSEL WAS NEVER REQUIRED IN NONCAPITAL CASES IN
STATE COURTS IN ORDER TO SATISFY THE NECESSITY FOR BASIC FAIRNESS WHICH
IS FORMULATED IN THAT AMENDMENT. 

THERE HAVE BEEN MADE TO THIS COURT WITHOUT AVAIL ARGUMENTS BASED ON
THE LONG PRACTICE AS TO COUNSEL IN STATE COURTS TO CONVINCE US THAT
UNDER THE FOURTEENTH AMENDMENT A STATE MAY REFUSE TO FURNISH COUNSEL
EVEN WHEN NEEDED BY THE ACCUSED IN SERIOUS FELONIES OTHER THAN
CAPITAL.  OUR DECISIONS HAVE BEEN THAT WHERE THE IGNORANCE, YOUTH, OR
OTHER INCAPACITY OF THE DEFENDANT MADE A TRIAL WITHOUT COUNSEL UNFAIR,
THE DEFENDANT IS DEPRIVED OF HIS LIBERTY CONTRARY TO THE FOURTEENTH
AMENDMENT N12.  COUNSEL NECESSARY FOR HIS ADEQUATE DEFENSE WOULD BE
LACKING. 

RESPONDENT ARGUES THAT TO HOLD TO SUCH PRECEDENTS LEAVES THE STATE
PROSECUTING AUTHORITIES UNCERTAIN AS TO WHETHER TO OFFER COUNSEL TO ALL
ACCUSED WHO ARE WITHOUT ADEQUATE FUNDS AND UNDER SERIOUS CHARGES IN
STATE COURTS.  WE CANNOT OFFER A PANACEA FOR THE DIFFICULTY.  SUCH AN
INTERPRETATION OF THE FOURTEENTH AMENDMENT WOULD BE AN UNWARRANTED
FEDERAL INTRUSION INTO STATE CONTROL OF ITS CRIMINAL PROCEDURE.  THE
DUE PROCESS CLAUSE IS NOT SUSCEPTIBLE OF REDUCTION TO A MATHEMATICAL
FORMULA.  FN13 

FURTHERMORE, THE FAIR CONDUCT OF A TRIAL DEPENDS LARGELY ON THE
WISDOM AND UNDERSTANDING OF THE TRIAL JUDGE.  HE KNOWS THE ESSENTIALS
OF A FAIR TRIAL.  THE PRIMARY DUTY FALLS ON HIM TO DETERMINE THE
ACCUSED'S NEED OF COUNSEL AT ARRAIGNMENT AND DURING TRIAL.  HE MAY
GUIDE A DEFENDANT WITHOUT A LAWYER PAST THE ERRORS THAT MAKE TRIALS
UNFAIR.  CF. UVEGES V. PENNSYLVANIA, SUPRA.  FAILURE TO PROTECT
PROPERLY THE RIGHTS OF ONE ACCUSED OF SERIOUS OFFENSES IS UNUSUAL. 
OBVIOUSLY A FAIR TRIAL TEST NECESSITATES AN APPRAISAL BEFORE AND DURING
THE TRIAL OF THE FACTS OF EACH CASE TO DETERMINE WHETHER THE NEED FOR
COUNSEL IS SO GREAT THAT THE DEPRIVATION OF THE RIGHT TO COUNSEL WORKS
A FUNDAMENTAL UNFAIRNESS.  THE RECENT DISCUSSION OF THE PROBLEM IN
UVEGES V. PENNSYLVANIA, SUPRA, MAKES FURTHER ELABORATION UNNECESSARY. 
WE THINK THAT THE FACTS OF THIS CASE, PARTICULARLY THE EVENTS OCCURRING
AT THE TRIAL, REVEAL, IN THE LIGHT OF THAT OPINION AND THE PRECEDENTS
THERE CITED, THAT PETITIONER WAS HANDICAPPED BY LACK OF COUNSEL TO SUCH
AN EXTENT THAT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS DENIED. 
THIS CASE IS OF THE TYPE REFERRED TO IN BETTS V. BRADY, SUPRA, AT 473,
AS LACKING FUNDAMENTAL FAIRNESS BECAUSE NEITHER COUNSEL NOR ADEQUATE
JUDICIAL GUIDANCE OR PROTECTION WAS FURNISHED AT THE TRIAL. 

A DEFENDANT WHO PLEADS NOT GUILTY AND ELECTS TO GO TO TRIAL IS
USUALLY MORE IN NEED OF THE ASSISTANCE OF A LAWYER THAN IS ONE WHO
PLEADS GUILTY.  THE RECORD IN THIS CASE EVIDENCES PETITIONER'S
HELPLESSNESS, WITHOUT COUNSEL AND WITHOUT MORE ASSISTANCE FROM THE
JUDGE, IN DEFENDING HIMSELF AGAINST THIS CHARGE OF LARCENY.  WE TAKE NO
NOTE OF THE TONE OF THE COMMENTS AT THE TIME OF THE SENTENCE.  THE
TRIAL WAS OVER.  THE QUESTIONABLE ISSUES ALLOWED TO PASS UNNOTICED AS
TO PROCEDURE, EVIDENCE, PRIVILEGE, AND INSTRUCTIONS DETAILED IN THE
FIRST PART OF THIS OPINION DEMONSTRATE TO US THAT PETITIONER DID NOT
HAVE A TRIAL THAT MEASURES UP TO THE TEST OF FAIRNESS PRESCRIBED BY THE
FOURTEENTH AMENDMENT. 

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  BLADES:  "THEN SHE (WITNESS'S MOTHER) TELLS ME ABOUT HIM
(PETITIONER) BEING THERE." 

CONSTABLE FLEMING:  "I GOT A TELEPHONE CALL FROM THE CHIEF OF POLICE,
MR. MILLER, TO GO UP TO MRS. LAFIELD'S TO INVESTIGATE A ROBBERY THAT
OCCURRED THERE.  ...  I ASKED JIM, WHERE WAS THE SUITCASE.  HE SAID,
THE SUITCASE WAS BY THE BED.  ...  " 

"I WENT TO THREE PAWNSHOPS AND THEY GAVE ME A DESCRIPTION OF EDWARD
GIBBS  ...  " 

THE DISTRICT ATTORNEY'S UNSWORN OFFER OF PROOF CONCERNING THE MISSING
ARTICLES WAS AS FOLLOWS: 

"MR. JOHNSON:  I WANT TO OFFER INTO EVIDENCE THE WALLET, THE WATCH,
WHICH WERE IDENTIFIED AND FOUND - THE WATCH WAS FOUND IN THE POSSESSION
OF THE DEFENDANT.  THIS WALLET, CONTAINING THE PAPERS OF MR. BLADES,
WHICH WAS FOUND IN THE JAIL CELL THAT HAD BEEN OCCUPIED BY THE
DEFENDANT. 

"THE COURT:  WHAT ABOUT THE RADIO? 

"MR. JOHNSON:  IT HAS BEEN RECOVERED AND RETURNED TO THE OWNER." 

FN2  "THE DEFENDANT:  MAY I CALL THE PROSECUTOR (BLADES) BACK ON THE
STAND? 

"MR. JOHNSON:  HE DESIRES TO CALL THE PROSECUTOR AS HIS WITNESS." 

IN HIS CHARGE TO THE JURY THE JUDGE SAID WITH REFERENCE TO THIS
EPISODE: 

"AS HE HAS PRESENTED NO EVIDENCE OF HIS OWN, EXCEPT HAVING CALLED MR.
BLADES AND CERTAIN QUESTIONS WERE ASKED MR. BLADES AND CERTAIN ANSWERS
MADE; THAT IS THE ONLY EVIDENCE HE PRESENTED." 

FN3  COMMONWEALTH V. REEVES, 267 PA. 361, 362-363, 110 A. 158, 159;
COMMONWEALTH V. EISENHOWER, 181 PA. 470, 476, 37 A. 521, 522. 

FN4  COMMONWEALTH V. FARRELL, 187 PA. 408, 423-24, 41 A. 382, 384;
SEE 3 WIGMORE, EVIDENCE (3D ED., 1940) SEC. 950. 

FN5  "Q.  LAST FALL, LAST YEAR, DIDN'T YOU WRECK YOUR OWN AUTOMOBILE
AND ENTER A COMPLAINT THAT I STOLE YOUR CAR AND WRECKED IT? 

"MR. JOHNSON:  OBJECTED TO. 

"THE COURT:  OBJECTION SUSTAINED.  IT HAS NOTHING TO DO WITH THIS
CASE. 

"THE DEFENDANT:  ALL RIGHT." 

FN6  "THE COURT:  NOW THEN, GIBBS, YOU MAY, IF YOU WANT TO, TAKE THE
STAND AND SAY ANYTHING YOU WANT TO SAY, BUT I WARN YOU IF YOU DO, IF
YOU HAVE ANY RECORD OF ANY PRIOR CONVICTION, ANY FELONIES OR ANY
MISDEMEANORS IN THE NATURE OF WHAT WE CALL CRIMEN FALSI, THE
COMMONWEALTH MAY OFFER THE RECORD OF ANY CONVICTIONS YOU MAY HAVE HAD. 
I AM WARNING YOU IN ADVANCE.  YOU MAY, HOWEVER, TAKE THE STAND AND
TESTIFY OR YOU MAY REFUSE TO TAKE THE STAND AND IF YOU DO REFUSE TO
TAKE THE STAND, THE COMMONWEALTH AND THE COURT MAY NOT COMMENT
UNFAVORABLY ABOUT YOUR FAILURE TO TAKE THE STAND AND TESTIFY.  I WANT
TO WARN YOU FULLY BEFORE YOU DO TAKE THE STAND. 

"DO YOU WANT TO TAKE THE STAND?    "THE DEFENDANT:  NO, I DON'T HAVE
ANYTHING TO SAY IN COURT." 

FN7  "BY THE COURT: 

"Q.  GIBBS, DO YOU HAVE ANYTHING TO SAY BEFORE WE IMPOSE SENTENCE? 

"A.  NO, I GUESS NOT. 

"Q.  HOW LONG HAVE YOU BEEN IN JAIL? 

"A.  TWO MONTHS AND A HALF. 

"Q.  WHAT IS THE MATTER WITH YOU; WHY CAN'T YOU KEEP OUT OF TROUBLE? 

"A.  I DON'T KNOW, SIR.    "Q.  YOU DON'T KNOW WHY YOU CAN'T DO IT?
WHAT DO YOU DO, GET DRUNK OR SOMETHING, OR ARE YOU JUST ORNERY? 

"MR. JOHNSON:  DON'T YOU THINK THIS MAN WOULD BE BETTER IF HE WERE
SENT TO THE EASTERN PENITENTIARY? 

"BY THE COURT: 

"Q.  DO YOU REALIZE YOU CAN BE PUT AWAY FOR THE REST OF YOUR LIFE? 

"A.  (NO ANSWER.) 

"THE COURT:  IT IS A WONDER THE DISTRICT ATTORNEY DOESN'T INDICT YOU
FOR IT.  YOU CAN BE INDICTED. 

"MR. JOHNSON:  IF HE COMES BACK AGAIN, I WILL TAKE IT AS MY PERSONAL
JOB TO INDICT HIM. 

"THE COURT:  IN 1928 YOU WERE FOUND GUILTY OF BURGLARY, LARCENY,
RECEIVING STOLEN GOODS, BEFORE JUDGE FRONEFIELD - ONE TO TWO YEARS,
COUNTY JAIL.  IN 1931, PLEAD GUILTY TO LARCENY - $100 FINE AND COSTS,
ONE TO TWO YEARS, JUDGE MACDADE.  1932 FOUND GUILTY OF LARCENY AND
RECEIVING STOLEN GOODS, $50 FINE AND COSTS, SIX MONTHS TO THREE YEARS
IN COUNTY JAIL, JUDGE MORROW.  THAT IS THREE.  1934 LARCENY, FOUND
GUILTY, $100 FINE AND COSTS, SIX MONTHS TO THREE YEARS IN COUNTY JAIL;
SENTENCED TO ONE YEAR IN COUNTY JAIL FOR VIOLATION OF PAROLE; JUDGE
FRONEFIELD.  THAT IS FOUR.  1937, RECEIVING STOLEN GOODS, $10 FINE AND
COSTS, ONE TO THREE YEARS COUNTY JAIL, SENTENCE SUSPENDED BY JUDGE
MACDADE.  THAT IS FIVE.  1938, LARCENY; FOUND GUILTY, ONE AND HALF TO
THREE YEARS COUNTY JAIL, JUDGE CRICHTON.  I DON'T BELIEVE THERE IS
ANYONE YOU MISSED UP TO NOW.  YOU WERE BEFORE ME A YEAR AGO.  NO, JUST
LAST MARCH.  YOU BEAT THAT, NOT GUILTY.  NOW, HERE YOU ARE THE SEVENTH
TIME. 

"ALL I CAN DO IS GIVE HIM TWO AND A HALF TO FIVE YEARS, IF YOU DON'T
WANT TO INDICT THESE FOURTH OFFENDERS. 

                               "SENTENCE 

"ON NO. 417 SEPTEMBER SESSIONS 1947, THE SENTENCE OF THE COURT IS
THAT YOU UNDERGO IMPRISONMENT IN THE EASTERN STATE PENITENTIARY AT
SOLITARY CONFINEMENT AND HARD LABOR FOR TWO AND A HALF TO FIVE YEARS
AND STAND COMMITTED UNTIL THIS SENTENCE BE COMPLIED WITH.  IF I COULD
GIVE YOU LIFE, I WOULD DO IT. 

"TAKE HIM AWAY." 

FN8  CF. PRICE V. JOHNSTON, 334 U.S. 266, 292, AND CASES THERE
CITED. 

FN9  TOMKINS V. MISSOURI, 323 U.S. 485, 487. 

FN10  RESPONDENT'S BRIEF STATES:  "THE ISSUE NOW TO BE DETERMINED IS
WHETHER HE WAS PROPERLY CHARGED WITH THE OFFENSE, TRIED, CONVICTED AND
SENTENCED, UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA AND THE
CONSTITUTION OF THE UNITED STATES, MORE PARTICULARLY THE PORTION OF THE
FOURTEENTH AMENDMENT  ...  " 

FN11  SEE COMMONWEALTH EX REL. MCGLINN V. SMITH, 344 PA. 41, 24 A.2D
1; COMMONWEALTH EX REL. PENLAND V. ASHE, 341 PA. 337, 19 A.2D 464. 

FN12  UVEGES V. PENNSYLVANIA, 335 U.S. 437, 441, AND CASES THERE
CITED. 

FN13  BETTS V. BRADY, 316 U.S. 455; BUTE V. ILLINOIS, 333 U.S. 640,
676; TOWNSEND V. BURKE, 334 U.S. 736, 739. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE JUDGMENT OF
THE COURT.  THEY THINK THAT BETTS V. BRADY SHOULD BE OVERRULED.  IF
THAT CASE IS TO BE FOLLOWED, HOWEVER, THEY AGREE WITH THE COURT'S
OPINION INSOFAR AS IT HOLDS THAT PETITIONER IS ENTITLED TO RELIEF UNDER
THE BETTS V. BRADY DOCTRINE. 

MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE CONCUR IN THE RESULT. 
..END :















COSMOPOLITAN CO. V. MCALLISTER, 337 U.S. 783 


NO. 351.  ARGUED FEBRUARY 1-2, 1949.  - DECIDED JUNE 27, 1949.  - 169
F.2D 4, REVERSED. 


A GENERAL AGENT EMPLOYED BY THE UNITED STATES UNDER THE TERMS OF THE
WAR-TIME STANDARD FORM OF GENERAL AGENCY AGREEMENT TO MANAGE CERTAIN
PHASES OF THE BUSINESS OF A SHIP OWNED BY THE UNITED STATES AND
OPERATED BY THE WAR SHIPPING ADMINISTRATION IS NOT LIABLE UNDER SEC. 33
OF THE MERCHANT MARINE ACT OF 1920, KNOWN AS THE JONES ACT, TO A MEMBER
OF THE CREW OF THE SHIP WHO SUFFERED PHYSICAL INJURY THROUGH THE
NEGLIGENCE OF ITS MASTER AND OFFICERS, WHEN THE INJURY OCCURRED AFTER
MARCH 24, 1943, THE DATE OF ENACTMENT OF THE WAR SHIPPING
ADMINISTRATION ACT, KNOWN AS THE CLARIFICATION ACT.  PP. 785-801. 

1.  RATIONALE OF CALDAROLA V. ECKERT, 332 U.S. 155, FOLLOWED; HUST V.
MOORE-MCCORMACK LINES, 328 U.S. 707, OVERRULED.  PP. 787-794. 

(A)  THE OPINION IN THE HUST CASE MISCONCEIVED THE RULING OF BRADY V.
ROOSEVELT S.S. CO., 317 U.S. 575, WHICH DECIDED NO MORE, DIRECTLY OR BY
IMPLICATION, THAN THAT AN ACTION COULD BE MAINTAINED AGAINST AGENTS OF
THE UNITED STATES AT COMMON LAW FOR THE AGENTS' OWN TORTS AND DID NOT
INVOLVE THE RIGHT TO RECOVER AGAINST EMPLOYERS UNDER THE JONES ACT.  P.
789. 

(B)  NEITHER THE STATUTES RELATING TO SAILORS' RIGHTS NOR THE HISTORY
BEHIND THEIR ENACTMENT DISCLOSES ANY LEGISLATIVE PURPOSE TO CREATE IN
SEAMEN EMPLOYEES OF THE UNITED STATES THROUGH THE WAR SHIPPING
ADMINISTRATION A RIGHT TO ENFORCE TORT CLAIMS UNDER THE JONES ACT
AGAINST OTHERS THAN THEIR EMPLOYERS OR ANY RECOGNITION THAT SUCH RIGHT
EVER EXISTED.  PP. 789-790. 

(C)  A CONSTRUCTION OF THE JONES ACT CARRYING OUT THE INTENTION OF
CONGRESS TO GRANT CERTAIN NEW RIGHTS TO SEAMEN AGAINST THEIR EMPLOYERS
DOES NOT REQUIRE OR PERMIT A HOLDING THAT A GENERAL AGENT UNDER THE
STANDARD FORM OF WAR-TIME GENERAL AGENCY AGREEMENT IS AN EMPLOYER UNDER
THE JONES ACT.  PP. 790-791. 

(D)  NOTHING IN THE CLARIFICATION ACT OF MARCH 24, 1943, OR ITS
LEGISLATIVE HISTORY INDICATES A CONGRESSIONAL PURPOSE TO DO ANYTHING
OTHER THAN TO EXTEND EXISTING RIGHTS OF MERCHANT SEAMEN TO ALL SEAMEN
EMPLOYED THROUGH THE WAR SHIPPING ADMINISTRATION.  PP. 791-793. 

2.  THE CONCLUSION HERE REACHED IS SUPPORTED BY A RE-EXAMINATION OF
THE TERMS OF THE PRESENT STANDARD SERVICE AGREEMENTS, THE ACTUAL
CONDUCT OF THE PARTIES THEREUNDER, AND THE PURPOSE AND EFFECT OF THE
AGREEMENTS.  PP. 794-801. 

(A)  AN EXAMINATION OF THE TERMS OF THE GENERAL AGENCY AGREEMENT AND
THE ACTUAL CONDUCT OF THE PARTIES THEREUNDER DEMONSTRATES THAT THE
UNITED STATES HAD RETAINED FOR THE ENTIRE VOYAGE THE POSSESSION,
MANAGEMENT, AND NAVIGATION OF THE VESSEL AND CONTROL OF THE SHIP'S
OFFICERS AND CREW TO THE EXCLUSION OF THE GENERAL AGENT.  PP. 795-796. 

(B)  THE DUTIES OF THE GENERAL AGENT WERE EXPRESSLY AND INTENTIONALLY
LIMITED TO THOSE OF A SHIP'S HUSBAND, WHO HAS BEEN ENGAGED TO TAKE CARE
OF THE SHORESIDE BUSINESS OF THE SHIP AND WHO HAS NO PART IN THE ACTUAL
MANAGEMENT OR NAVIGATION OF THE VESSEL.  P. 796. 

(C)  UNDER THE STANDARD SERVICE AGREEMENTS, THE SHORESIDE SERVICES
AND ADMINISTRATION OF THE MERCHANT FLEET WERE TO BE HANDLED BY EXISTING
PRIVATE COMPANIES WHILE THE UNITED STATES, THROUGH THE MASTER OF THE
SHIP, RETAINED FULL CONTROL OVER THE NAVIGATION AND PHYSICAL OPERATION
OF THE VESSEL.  PP. 796-798. 

COSMOPOLITAN SHIPPING CO. V. MCALLISTER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

A MEMBER OF THE CREW OF A SHIP OWNED BY THE UNITED STATES AND
OPERATED BY THE WAR SHIPPING ADMINISTRATION OBTAINED A JUDGMENT IN A
FEDERAL DISTRICT COURT AGAINST A GENERAL AGENT EMPLOYED BY THE UNITED
STATES TO MANAGE CERTAIN PHASES OF THE SHIP'S BUSINESS, FOR INJURIES
SUSTAINED THROUGH THE NEGLIGENCE OF ITS MASTER AND OFFICERS.  THE COURT
OF APPEALS AFFIRMED.  169 F.2D 4.  THIS COURT GRANTED CERTIORARI.  335
U.S. 870.  REVERSED, P. 801. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE HUST V. MOORE-MCCORMACK LINES, 328 U.S. 707, AND
CALDAROLA V. ECKERT, 332 U.S. 155, PRESENTS QUESTIONS CONCERNING THE
LIABILITY FOR INJURY TO THIRD PERSONS OF A GENERAL AGENT WHO, UNDER THE
TERMS OF THE WARTIME STANDARD FORM OF AGENCY AGREEMENT, GAA 4-4-42,
FN1 MANAGES CERTAIN PHASES OF THE BUSINESS OF SHIPS OWNED BY THE UNITED
STATES AND OPERATED BY THE WAR SHIPPING ADMINISTRATION.  MORE
SPECIFICALLY THE ISSUE RAISED BY THESE FACTS IS WHETHER SUCH A GENERAL
AGENT IS LIABLE UNDER SEC. 33 OF THE MERCHANT MARINE ACT OF 1920, KNOWN
AS THE JONES ACT, FN2  TO A MEMBER OF THE CREW WHO SUFFERED PHYSICAL
INJURY THROUGH THE NEGLIGENCE OF THE MASTER AND OFFICERS OF SUCH A
VESSEL, WHEN THE INJURY OCCURRED AFTER MARCH 24, 1943, THE DATE OF
ENACTMENT OF THE WAR SHIPPING ADMINISTRATION (CLARIFICATION) ACT.  FN3 

RESPONDENT WAS PROCURED FROM THE UNION HIRING HALL BY PETITIONER IN
ACCORDANCE WITH THE TERMS OF THE STANDARD AGREEMENT  FN4  AND MADE
AVAILABLE TO THE MASTER FOR EMPLOYMENT BY HIM.  THE MASTER IS
DESIGNATED BY THE CONTRACT AS AN AGENT AND EMPLOYEE OF THE UNITED
STATES.  IN JULY OF 1945 RESPONDENT WAS SIGNED ON THE S.S. EDWARD B.
HAINES AT NEW YORK BY THE MASTER OF THAT VESSEL AS SECOND ASSISTANT
ENGINEER.  IN THE SPACE ON THE SHIPPING ARTICLES ENTITLED "OPERATING
COMPANY ON THIS VOYAGE" THERE WAS WRITTEN "COSMOPOLITAN SHIPPING CO.,
INC., AS GENERAL AGENT FOR THE UNITED STATES."  THE ARTICLES WERE
STAMPED AT THE TOP AS FOLLOWS:  "YOU ARE BEING EMPLOYED BY THE UNITED
STATES."  FN5 

IN NOVEMBER, 1945, WHEN THE HAINES WAS ON VOYAGE AND EITHER IN PORT
OR OFF THE COAST OF CHINA, RESPONDENT CONTRACTED POLIOMYELITIS.  AT
THAT TIME THE MASTER EXERCISED "FULL CONTROL, RESPONSIBILITY AND
AUTHORITY WITH RESPECT TO THE NAVIGATION AND MANAGEMENT OF THE VESSEL"
AS PROVIDED IN SEC. 3A (D) OF THE CONTRACT.  SEE P. 796, INFRA. 
BECAUSE OF ALLEGED NEGLIGENCE OF THE MASTER AND OFFICERS IN FURNISHING
PROPER TREATMENT, HE SUFFERED PERMANENT INJURY FROM THE DISEASE. 
MCALLISTER SUED THE PETITIONER, COSMOPOLITAN, UNDER THE JONES ACT.  THE
COMPLAINT ALLEGED THAT COSMOPOLITAN "MANAGED, OPERATED AND CONTROLLED"
THE HAINES UNDER A GENERAL AGENCY AGREEMENT WITH ITS OWNER, THAT
MCALLISTER WAS IN THE EMPLOY OF COSMOPOLITAN, AND THAT HIS INJURIES
RESULTED FROM THE NEGLIGENCE OF COSMOPOLITAN, "ITS AGENTS, SERVANTS,
AND EMPLOYEES" IN FAILING TO TAKE PRECAUTIONS AGAINST A KNOWN
POLIOMYELITIS EPIDEMIC AND IN FAILING TO PROVIDE PROPER TREATMENT.  THE
ANSWER DENIED THESE ALLEGATIONS.  THE JURY FOUND A VERDICT FOR
RESPONDENT FOR $100,000. 

ON APPEAL THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMED.  MCALLISTER V. COSMOPOLITAN SHIPPING CO., 169 F.2D 4.  WHILE
RECOGNIZING THAT COSMOPOLITAN WAS "A SHIPPING COMPANY WHICH CONTRACTED
WITH THE WAR SHIPPING ADMINISTRATION TO ATTEND TO THE ACCOUNTING AND
CERTAIN OTHER SHORESIDE BUSINESS OF THE HAINES  ...  IN ACCORDANCE WITH
THE STANDARD FORM OF GENERAL AGENCY SERVICE AGREEMENT," ID. AT P. 5,
THE COURT FELT ITSELF BOUND BY THE DECISION OF THIS COURT IN HUST V.
MOORE-MCCORMACK LINES, SUPRA.  IT RELIED UPON THE FACT THAT WE
EXPRESSLY DISTINGUISHED THE HUST CASE IN CALDAROLA V. ECKERT, SUPRA.
THE COURT OF APPEALS REACHED THIS CONCLUSION DESPITE THE FACT THAT THE
INJURY TO HUST OCCURRED PRIOR TO THE CLARIFICATION ACT, AND THE INJURY
HERE OCCURRED SUBSEQUENT TO THAT ACT.  IN ITS VIEW THE HUST CASE HELD,
AS A MATTER OF LAW, THAT BEFORE THE CLARIFICATION ACT A SEAMAN UNDER
THE JONES ACT COULD RECOVER FOR A TORT AGAINST A SERVICE AGREEMENT
GENERAL AGENT, AS AN EMPLOYER.  THE COURT DID NOT PERCEIVE HOW THE
CLARIFICATION ACT CHANGED THIS LIABILITY.  169 F.2D 4, 8. 

                                  I. 

WE ARE IMPELLED TO THE CONCLUSION THAT THE CLARIFICATION ACT AFFORDS
NO BASIS FOR DISTINGUISHING THE PRESENT CASE FROM THE HUST CASE AND
THAT THE REASONING IN THE LATER CALDAROLA CASE, WHICH WE ACCEPT AS
SOUND, CALLS FOR THE REJECTION OF THE BASIS OF THE HUST CASE.  THE HUST
CASE WENT ON THE THEORY THAT THE GENERAL AGENTS FOR THE UNITED STATES
UNDER THE SAME STANDARD SERVICE AGREEMENT WERE EMPLOYERS OF THE INJURED
SEAMAN, HUST, FOR THE PURPOSES OF LIABILITY UNDER THE JONES ACT.  FN6
THE GENERAL AGENT WAS FOUND TO BE LIABLE TO THE SEAMAN BY TWO STEPS OF
REASONING:  FIRST, THAT THE OVERRULING OF FLEET CORPORATION V.
LUSTGARTEN, 280 U.S. 320, BY BRADY V. ROOSEVELT S.S. CO., 317 U.S. 575,
GAVE A SEAMAN A RIGHT TO SUE UNDER THE JONES ACT SUCH GENERAL AGENTS AS
WERE EMPLOYED UNDER CONTRACTS LIKE MOORE-MCCORMACK'S FOR TORTS
COMMITTED AGAINST SEAMEN BY MASTERS AND CREW, 328 U.S. 716-722; SECOND,
THAT ALTHOUGH "TECHNICALLY THE AGREEMENT MADE HUST AN EMPLOYEE OF THE
UNITED STATES," P. 723, THE "RULES OF PRIVATE AGENCY," P. 724, SHOULD
NOT BE APPLIED TO TAKE AWAY "PROTECTIONS" FROM SEAMEN.  SEE 332 U.S.
165-166.  FN7  THIS SECOND STEP WAS SAID TO FIND SUPPORT IN THE
ELECTION GIVEN TO SEAMEN BY SEC. 1 OF THE CLARIFICATION ACT TO PROCEED
UNDER THE NEW ACT FOR CLAIMS ARISING AFTER OCTOBER 1, 1941, AND BEFORE
THE ENACTMENT OF THE CLARIFICATION ACT, MARCH 24, 1943.  328 U.S. AT
725, ET SEQ. FN8 

AS TO THE FIRST CONCLUSION, WE THINK IT ARISES FROM A MISCONCEPTION
OF THE RULING OF THE BRADY CASE.  THE BRADY CASE DECIDED NO MORE,
DIRECTLY OR BY IMPLICATION, THAN THAT AN ACTION COULD BE MAINTAINED
AGAINST AGENTS OF THE UNITED STATES AT COMMON LAW FOR THE AGENTS' OWN
TORTS.  THE CASE DID NOT INVOLVE THE RIGHT TO RECOVER AGAINST EMPLOYERS
UNDER THE JONES ACT.  BRADY WAS A CUSTOMS INSPECTOR SUING FOR INJURIES
SUSTAINED WHEN A SHIP'S LADDER BROKE.  THE OPINION SAID, 317 U.S. AT
577, "THE SOLE QUESTION HERE IS WHETHER THE SUITS IN ADMIRALTY ACT
MAKES PRIVATE OPERATORS SUCH AS RESPONDENT NONSUABLE FOR THEIR TORTS." 
FN9  CF. CALDAROLA V. ECKERT, 332 U.S. AT 159-160. 

AS TO THE SECOND CONCLUSION, WE ARE UNABLE TO PERCEIVE IN THE
STATUTES RELATING TO SAILORS' RIGHTS OR THE HISTORY BEHIND THEIR
ENACTMENT ANY LEGISLATIVE PURPOSE TO CREATE IN SEAMEN EMPLOYEES OF THE
UNITED STATES THROUGH THE WAR SHIPPING ADMINISTRATION A RIGHT TO
ENFORCE TORT CLAIMS UNDER THE JONES ACT AGAINST OTHERS THAN THEIR
EMPLOYERS OR ANY RECOGNITION THAT SUCH RIGHT EVER EXISTED.  THE JONES
ACT WAS WELFARE LEGISLATION THAT CREATED NEW RIGHTS IN SEAMEN FOR
DAMAGES ARISING FROM MARITIME TORTS.  AS WELFARE LEGISLATION, THIS
STATUTE IS ENTITLED TO A LIBERAL CONSTRUCTION TO ACCOMPLISH ITS
BENEFICENT PURPOSES.  COMPARE AGUILAR V. STANDARD OIL CO., 318 U.S.
724; AMERICAN STEVEDORES V. PORELLO, 330 U.S. 446.  IN CONSIDERING
SIMILAR LEGISLATION IN OTHER FIELDS, WE HAVE CONCLUDED THAT CONGRESS
INTENDED THAT THE PURPOSES OF SUCH ENACTMENTS SHOULD NOT BE RESTRICTED
BY COMMON-LAW CONCEPTS OF CONTROL SO AS TO BAR FROM WELFARE LEGISLATION
AS INDEPENDENT CONTRACTORS PERSONS WHO WERE AS A MATTER OF ECONOMIC
REALITY A PART OF THE PROCESSES AND DEPENDENT UPON THE BUSINESSES TO
WHICH THEY RENDERED SERVICE.  FN10 

THE ISSUE IN THIS CASE IS WHETHER A CONSTRUCTION OF THE JONES ACT
CARRYING OUT THE INTENTION OF CONGRESS TO GRANT THOSE NEW RIGHTS TO
SEAMEN AGAINST THEIR EMPLOYERS REQUIRES OR PERMITS A HOLDING THAT THE
GENERAL AGENT UNDER THE CONTRACT HERE IN QUESTION IS AN EMPLOYER UNDER
THE JONES ACT.  THE DECISION DEPENDS UPON THE INTERPRETATION OF THE
CONTRACT BETWEEN RESPONDENT AND COSMOPOLITAN ON ONE HAND AND THAT
BETWEEN COSMOPOLITAN AND THE UNITED STATES ON THE OTHER.  WE ASSUME,
WITHOUT DECIDING, THAT THE RULE OF THE HEARST CASE APPLIES, THAT IS,
THE WORD "EMPLOYMENT" SHOULD BE CONSTRUED SO AS TO GIVE PROTECTION TO
SEAMEN FOR TORTS COMMITTED AGAINST THEM BY THOSE STANDING IN THE
PROXIMATE RELATION OF EMPLOYER, AND THE RULES OF PRIVATE AGENCY SHOULD
NOT BE RIGOROUSLY APPLIED.  FN11  YET THIS COURT MAY NOT DISREGARD THE
PLAIN AND RATIONAL MEANING OF EMPLOYMENT AND EMPLOYER TO FURNISH A
SEAMAN A CAUSE OF ACTION AGAINST ONE COMPLETELY OUTSIDE THE BROADEST
LINES OR DEFINITIONS OF EMPLOYMENT OR EMPLOYER.  WE HAVE NO DOUBT THAT,
UNDER THE JONES ACT, ONLY ONE PERSON, FIRM, OR CORPORATION CAN BE SUED
AS EMPLOYER.  EITHER COSMOPOLITAN OR THE GOVERNMENT IS THAT EMPLOYER. 
FN12  THE SEAMAN'S SUBSTANTIVE RIGHTS ARE THE SAME WHOEVER IS THE
EMPLOYER.  UNDER THE JONES ACT, HIS REMEDY PERMITS HIM TO DEMAND A JURY
TRIAL.  IF THE GOVERNMENT IS THE EMPLOYER, HIS REMEDY IS IN ADMIRALTY
WITHOUT A JURY.  SEE THE EXCERPT FROM THE HOUSE REPORT, P. 792, INFRA. 

IT WAS SAID IN HUST THAT THE ELECTION OF REMEDIES GRANTED SEAMEN
INJURED BETWEEN OCTOBER 1, 1941, AND THE EFFECTIVE DATE OF THE
CLARIFICATION ACT, MARCH 24, 1943, INDICATED THAT A SEAMAN HAD BROADER
RIGHTS BEFORE THE CLARIFICATION ACT THAN HE DID AFTER.  328 U.S. AT
725, PART III.  THE SUGGESTION WAS THAT CONGRESS COULD NOT HAVE
INTENDED TO RESTRICT SUITS AGAINST GENERAL AGENTS.  THIS STATEMENT
SPRINGS FROM THE COURT'S THEN UNDERSTANDING OF THE BRADY CASE, WHICH WE
HAVE HERETOFORE CONSIDERED.  THE REASON FOR THE ELECTION GIVEN BY THE
CLARIFICATION ACT WAS QUITE DIFFERENT.  IT WAS TO GIVE SEAMEN EMPLOYEES
OF THE UNITED STATES THROUGH THE WAR SHIPPING ADMINISTRATION ON PUBLIC
VESSELS OR FOREIGN-FLAG VESSELS OR OTHERWISE AN ELECTION TO EMPLOY THE
MEANS FOR REDRESS THERETOFORE POSSESSED BY THEM, SUCH AS THOSE
MENTIONED IN SEC. 1 OF THE CLARIFICATION ACT, NOTE 8, SUPRA, OR TO
ENJOY THE SAME RIGHTS AS SIMILAR EMPLOYEES ON MERCHANT VESSELS.  FN13
NOTHING HAS BEEN PRESENTED TO US FROM THE ACT OR FROM ITS LEGISLATIVE
HISTORY INDICATIVE OF CONGRESSIONAL PURPOSE TO DO ANYTHING OTHER THAN
TO EXTEND EXISTING RIGHTS OF MERCHANT SEAMEN TO ALL SEAMEN EMPLOYED
THROUGH THE WAR SHIPPING ADMINISTRATION.  THIS WAS SPECIFICALLY
DECLARED IN H.R. REP. NO. 107, 78TH CONG., 1ST SESS., P. 21: 

"THE VARIOUS RIGHTS AND REMEDIES UNDER STATUTE AND GENERAL MARITIME
LAW WITH RESPECT TO DEATH, INJURY, ILLNESS, AND OTHER CASUALTY TO
SEAMEN, HAVE BEEN RATHER FULLY SET FORTH HEREINABOVE.  UNDER CLAUSE 2
OF SECTION 1(A) THESE SUBSTANTIVE RIGHTS WOULD BE GOVERNED BY EXISTING
LAW RELATING TO PRIVATELY EMPLOYED SEAMEN.  THE ONLY MODIFICATION
THEREOF ARISES FROM THE REMEDIAL PROVISION THAT THEY SHALL BE ENFORCED
IN ACCORDANCE WITH THE PROVISIONS OF THE SUITS IN ADMIRALTY ACT.  THIS
PROCEDURE IS APPROPRIATE IN VIEW OF THE FACT THAT THE SUITS WILL BE
AGAINST THE GOVERNMENT OF THE UNITED STATES.  IN SUCH A SUIT NO
PROVISION IS MADE FOR A JURY TRIAL AS MAY OTHERWISE BE HAD IN A
PROCEEDING SUCH AS ONE UNDER THE JONES ACT FOR REASONS SET FORTH IN THE
LETTER OF THE ATTORNEY GENERAL (SEPTEMBER 14, 1942)." 

SEE S. REP. NO. 62, 78TH CONG., 1ST SESS., PP. 11-12; S. REP. NO.
1813, 77TH CONG., 2D SESS., P. 6; HEARINGS BEFORE THE COMMITTEE ON THE
MERCHANT MARINE AND FISHERIES, HOUSE OF REPRESENTATIVES, 77TH CONG., 2D
SESS., ON H.R. 7424, P. 33. 

THE CALDAROLA CASE, 332 U.S. 155, UNDERMINED THE FOUNDATIONS OF
HUST.  SEE THE DISSENT THEREIN AT PP. 161-163.  CALDAROLA HELD THAT THE
GENERAL AGENTS UNDER THE STANDARD FORM CONTRACT WERE NOT IN POSSESSION
AND CONTROL OF THE VESSEL SO AS TO MAKE THEM LIABLE UNDER NEW YORK LAW
TO AN INVITEE FOR INJURIES ARISING FROM NEGLIGENCE IN ITS MAINTENANCE. 
PP. 158-59.  OUR RULING WAS BASED ON "THE INTERPRETATION OF THAT
CONTRACT" AS "A MATTER OF FEDERAL CONCERN."  WE DO NOT THINK IT
CONSISTENT TO HOLD THAT THE GENERAL AGENT HAS ENOUGH "POSSESSION AND
CONTROL" TO BE AN EMPLOYER UNDER THE JONES ACT BUT NOT ENOUGH TO BE
RESPONSIBLE FOR MAINTENANCE UNDER NEW YORK LAW.  IT IS TRUE, AS
RESPONDENT ARGUES, THAT CALDAROLA DEALT ONLY WITH THE GENERAL AGENT'S
LIABILITY TO A STEVEDORE, AS OPPOSED TO A CREW MEMBER, UNDER THE LAW OF
NEW YORK.  WE THINK, HOWEVER, THAT VICARIOUS LIABILITY TO ANYONE MUST
BE PREDICATED ON THE RELATION WHICH EXISTS UNDER THE STANDARD FORM
AGREEMENT AND THE SHIPPING ARTICLES BETWEEN THE GENERAL AGENT ON THE
ONE HAND AND THE MASTER AND CREW OF THE VESSEL ON THE OTHER.  CALDAROLA
HELD THAT THIS RELATION WAS NOT ONE WHICH INVOLVED THAT PROXIMITY
NECESSARY TO A FINDING OF LIABILITY IN THE GENERAL AGENT FOR THE TORTS
OF THE MASTER AND CREW.  WE PERCEIVE NO REASON WHY THE RATIONALE OF
THIS HOLDING DOES NOT APPLY WITH EQUAL FORCE TO A SUIT UNDER THE JONES
ACT.  UNDER COMMON-LAW PRINCIPLES OF AGENCY SUCH A CONCLUSION IS
REQUIRED.  WE THINK IT EQUALLY COMPELLED EVEN IF WE ARE TO ADOPT, AS
THE COURT IN HUST SUGGESTED, THE PERHAPS LESS TECHNICAL AND MORE
SUBSTANTIAL TESTS PROPOUNDED IN LABOR BOARD V. HEARST PUBLICATIONS, 322
U.S. 111. 

HUST WAS DECIDED JUNE 10, 1946; CALDAROLA JUNE 23, 1947.  CERTAINLY
FROM THE LATTER DATE, THE DANGER OF RELYING ON HUST WAS APPARENT TO THE
WORLD THOUGH IT MUST BE ADMITTED THERE WAS ENOUGH UNCERTAINTY IN THE
LAW PROPERLY TO GIVE CONCERN TO CONGRESS.  FN14  NOTWITHSTANDING THERE
MAY BE SOME UNDESIRABLE RESULTS IN OVERRULING HUST, SUCH AS LOSS OF
RIGHTS UNDER THE SUITS IN ADMIRALTY ACT BY RELIANCE ON HUST, WE THINK
THAT IN VIEW OF CALDAROLA, THE UNCERTAINTY AS TO REMEDIES THAT THE TWO
DECISIONS GENERATE, AND THE DESIRABILITY OF CLARIFYING THE POSITION OF
THE UNITED STATES AS AN EMPLOYER THROUGH THE WAR SHIPPING
ADMINISTRATION, THAT CASE SHOULD BE AND IS OVERRULED. 
               II. 

A RE-EXAMINATION OF THE PRESENT STANDARD SERVICE AGREEMENT WILL MAKE
CLEAR THE CONCLUSION SET OUT IN PART I OF THIS OPINION.  46 C.F.R. CUM.
SUPP. SEC. 306.44 ET SEQ. THE SOLUTION OF THE PROBLEM OF DETERMINING
THE EMPLOYER UNDER SUCH A CONTRACT DEPENDS UPON DETERMINING WHOSE
ENTERPRISE THE OPERATION OF THE VESSEL WAS.  SUCH WORDS AS EMPLOYER,
AGENT, INDEPENDENT CONTRACTOR ARE NOT DECISIVE.  NO SINGLE PHRASE CAN
BE SAID TO DETERMINE THE EMPLOYER.  ONE MUST LOOK AT THE VENTURE AS A
WHOLE.  WHOSE ORDERS CONTROLLED THE MASTER AND THE CREW?  WHOSE MONEY
PAID THEIR WAGES?  WHO HIRED THE CREW?  WHOSE INITIATIVE AND JUDGMENT
CHOSE THE ROUTE AND THE PORTS?  IT IS IN THE LIGHT OF THESE BASIC
CONSIDERATIONS THAT ONE MUST READ THE CONTRACT.  NO EVIDENCE HAS COME
TO OUR ATTENTION THAT INDICATES THE GENERAL AGENT EVER UNDERTOOK TO
GIVE ORDERS OR DIRECTIONS AS TO THE ROUTE OR MANAGEMENT OF THE SHIP
WHILE ON VOYAGE. 

AN EXAMINATION OF THE TERMS OF THE CONTRACT AND THE ACTUAL CONDUCT OF
THE PARTIES UNDER THIS AGREEMENT, SO FAR AS SHOWN BY THE RECORD,
DEMONSTRATES THAT THE UNITED STATES HAD RETAINED FOR THE ENTIRE VOYAGE
THE POSSESSION, MANAGEMENT, AND NAVIGATION OF THE VESSEL AND CONTROL OF
THE SHIP'S OFFICERS AND CREW TO THE EXCLUSION OF THE GENERAL AGENT. 
UNDER THE GENERAL AGENCY AGREEMENT THE GENERAL AGENT IS APPOINTED BY
THE UNITED STATES "AS ITS AGENT AND NOT AS AN INDEPENDENT CONTRACTOR,
TO MANAGE AND CONDUCT THE BUSINESS OF VESSELS ASSIGNED TO IT."  ART. I.
THE GENERAL AGENT AGREES "TO MANAGE AND CONDUCT THE BUSINESS FOR THE
UNITED STATES, IN ACCORDANCE WITH SUCH DIRECTIONS, ORDERS, OR
REGULATIONS AS THE LATTER HAS PRESCRIBED, OR FROM TIME TO TIME MAY
PRESCRIBE."  ART. 2.  THE GENERAL AGENT ENGAGES ITSELF TO "MAINTAIN THE
VESSELS IN SUCH TRADE OR SERVICE AS THE UNITED STATES MAY DIRECT," TO
"COLLECT ALL MONEYS DUE THE UNITED STATES" UNDER THE AGREEMENT, TO
"EQUIP, VICTUAL, SUPPLY AND MAINTAIN THE VESSELS, SUBJECT TO SUCH
DIRECTIONS, ORDERS, REGULATIONS AND METHODS OF SUPERVISION AND
INSPECTION AS THE UNITED STATES MAY FROM TIME TO TIME PRESCRIBE," ART.
3A, TO "ARRANGE FOR THE REPAIR OF THE VESSELS" AND TO "EXERCISE
REASONABLE DILIGENCE IN MAKING INSPECTIONS AND OBTAINING INFORMATION
WITH RESPECT TO THE STATE OF REPAIR AND CONDITION OF THE VESSELS." 
ART. 14.  THE AGREEMENT PROVIDES IN ART. 3A (D) THAT: 

"(D)  THE GENERAL AGENT SHALL PROCURE THE MASTER OF THE VESSELS
OPERATED HEREUNDER, SUBJECT TO THE APPROVAL OF THE UNITED STATES.  THE
MASTER SHALL BE AN AGENT AND EMPLOYEE OF THE UNITED STATES, AND SHALL
HAVE AND EXERCISE FULL CONTROL, RESPONSIBILITY AND AUTHORITY WITH
RESPECT TO THE NAVIGATION AND MANAGEMENT OF THE VESSEL.  THE GENERAL
AGENT SHALL PROCURE AND MAKE AVAILABLE TO THE MASTER FOR ENGAGEMENT BY
HIM THE OFFICERS AND MEN REQUIRED BY HIM TO FILL THE COMPLEMENT OF THE
VESSEL.  SUCH OFFICERS AND MEN SHALL BE PROCURED BY THE GENERAL AGENT
THROUGH THE USUAL CHANNELS AND IN ACCORDANCE WITH THE CUSTOMARY
PRACTICES OF COMMERCIAL OPERATORS AND UPON THE TERMS AND CONDITIONS
PREVAILING IN THE PARTICULAR SERVICE OR SERVICES IN WHICH THE VESSELS
ARE TO BE OPERATED FROM TIME TO TIME.  THE OFFICERS AND MEMBERS OF THE
CREW SHALL BE SUBJECT ONLY TO THE ORDERS OF THE MASTER.  ALL SUCH
PERSONS SHALL BE PAID IN THE CUSTOMARY MANNER WITH FUNDS BY THE UNITED
STATES HEREUNDER." 

IT IS THUS SEEN THAT THE DUTIES OF THE RESPONDENT WERE EXPRESSLY AND
INTENTIONALLY LIMITED TO THOSE OF A SHIP'S HUSBAND WHO HAS BEEN ENGAGED
TO TAKE CARE OF THE SHORESIDE BUSINESS OF THE SHIP AND WHO HAS NO PART
IN THE ACTUAL MANAGEMENT OR NAVIGATION OF THE VESSEL.  THIS VIEW IS
REINFORCED BY THE CONSIDERATIONS WHICH LED TO THE ESTABLISHMENT OF THE
WAR SHIPPING ADMINISTRATION TO CONTROL "THE OPERATION, PURCHASE,
CHARTER, REQUISITION, AND USE OF ALL OCEAN VESSELS UNDER THE FLAG OR
CONTROL OF THE UNITED STATES."  FN15  SECRECY, SPEED, AND EFFICIENCY OF
OPERATION WERE OF PARAMOUNT IMPORTANCE.  DIRECT GOVERNMENTAL OPERATION
OF THE MERCHANT FLEET INSURED SOVEREIGN IMMUNITY FROM REGULATION,
TAXATION, AND INSPECTION, BY OTHER SOVEREIGNTIES BOTH LOCAL AND
FOREIGN.  AT THE SAME TIME, THE SERVICES OF PRIVATE SHIPPING COMPANIES
COULD BE UTILIZED BECAUSE THEY POSSESSED PERSONNEL SKILLED IN THE
SHORESIDE BUSINESS OF A SHIP AND FAMILIAR WITH LOCAL PORT FACILITIES
AND CONDITIONS.  IN ADDITION THESE PRIVATE COMPANIES WERE FAVORABLY
SITUATED THROUGH THEIR UNION AND OTHER CONNECTIONS TO SECURE SEAMEN TO
MAN THE VESSELS.  AS A RESULT SERVICE AGREEMENTS WERE DESIGNED WHEREBY
THE SHORESIDE SERVICES AND ADMINISTRATION OF THE MERCHANT FLEET WERE TO
BE HANDLED BY EXISTING PRIVATE COMPANIES WHILE THE UNITED STATES,
THROUGH THE MASTER OF THE SHIP, RETAINED FULL CONTROL OVER THE
NAVIGATION AND PHYSICAL OPERATION OF THE VESSEL. 

TWO TYPES OF SERVICE AGREEMENTS WERE DRAFTED - THE GENERAL AGENCY
AGREEMENT, WITH WHICH WE ARE PRESENTLY CONCERNED, AND THE BERTH AGENCY
AGREEMENT.  FN16  THE GENERAL AGENT HAS THE RESPONSIBILITY OF
HUSBANDING THE VESSEL AND HIS DUTIES ARE TO VICTUAL, SUPPLY, MAINTAIN,
AND REPAIR THE SHIP.  THE DUTIES OF THE BERTH AGENT RELATE PRIMARILY TO
THE HANDLING AND LOADING OF CARGO AND OTHER PORT SERVICES SUCH AS
WHARFAGE AND PILOTAGE NEEDED BY THE VESSEL.  IN FOREIGN PORTS THE BERTH
AGENT ALSO TAKES CARE OF THE HUSBANDING SERVICES.  THERE IS NECESSARILY
A CERTAIN OVERLAPPING OF DUTIES, BUT TO AVOID ANY CONFLICT OF AUTHORITY
BOTH THE GENERAL AGENT AND THE BERTH AGENT WERE MADE SUBJECT TO "SUCH
DIRECTIONS, ORDERS, OR REGULATIONS AS THE (UNITED STATES) HAS
PRESCRIBED, OR FROM TIME TO TIME MAY PRESCRIBE."  FN17  THIS DIVISION
OF DUTIES BETWEEN THE GENERAL AGENT AND THE BERTH AGENT EMPHASIZES THE
FACT THAT NEITHER THE POSSESSION NOR MANAGEMENT OF THE VESSEL WAS
CONFERRED ON EITHER OF THEM.  THERE COULD BE NO OCCASION FOR ANY
CONFLICT OF AUTHORITY WITH REGARD TO ORDERS RECEIVED BY THE MASTER AS
TO THE ACTUAL OPERATION OF THE SHIP, FOR HE WAS EXPRESSLY MADE, IN ART.
3A (D), THE AGENT AND EMPLOYEE OF THE UNITED STATES WITH "FULL CONTROL,
RESPONSIBILITY AND AUTHORITY WITH RESPECT TO THE NAVIGATION AND
MANAGEMENT OF THE VESSEL." 

EVEN THE DISCRETION VESTED IN THE AGENTS WAS DECREASED BY THE MASTER
CONTRACTS WHICH THE UNITED STATES EXECUTED FOR THE FURNISHING OF
NUMEROUS SERVICES AND SUPPLIES REQUIRED BY THE VESSELS.  FN18  THERE
WERE ALSO DETAILED INSTRUCTIONS ISSUED BY THE WAR SHIPPING
ADMINISTRATION AS TO THE TERMS OF THE CONTRACTS WHICH THE AGENTS WERE
AUTHORIZED TO ENTER INTO,  FN19  AND THESE CONTRACTS WERE REQUIRED TO
BE EXECUTED IN THE NAME OF THE UNITED STATES AS PRINCIPAL.  FN20 

AT THE TIME OF THE WARTIME REQUISITION OF THE PRIVATELY OWNED
MERCHANT FLEET, THE GOVERNMENT ADMINISTRATIVE AGENCIES CONCERNED GAVE
CAREFUL STUDY TO THE QUESTION OF WHETHER THE CREWS WERE TO BE EMPLOYEES
OF THE SHIPPING COMPANIES OR OF THE UNITED STATES.  FN21  THERE WERE
OUTSTANDING MANY COLLECTIVE BARGAINING AGREEMENTS BETWEEN THE PRIVATE
SHIPPING COMPANIES AND THE MARITIME UNIONS.  IT WAS MANIFESTLY
UNDESIRABLE TO DISTURB THESE EXISTING AGREEMENTS AND FOR THE GOVERNMENT
TO NEGOTIATE NEW ONES.  FN22  YET IT WAS ESSENTIAL THAT THE MASTERS AND
CREWS BE GOVERNMENT EMPLOYEES IN ORDER TO OBVIATE STRIKES AND WORK
STOPPAGES, TO INSURE SOVEREIGN IMMUNITY FOR THE VESSELS, AND TO
PRESERVE WARTIME SECRECY BY CONFINING ALL LITIGATION CONCERNING
OPERATION OF THE VESSELS TO THE ADMIRALTY COURTS WHERE APPROPRIATE
SECURITY PRECAUTIONS COULD BE OBSERVED.  THE SERVICE AGREEMENTS,
THEREFORE, PROVIDED THAT THE OFFICERS AND MEN TO FILL THE COMPLEMENT OF
THE VESSEL SHOULD BE PROCURED BY THE GENERAL AGENT THROUGH THE USUAL
CHANNELS UPON THE TERMS AND CONDITIONS CUSTOMARILY PREVAILING IN THE
SERVICES IN WHICH THE VESSELS WERE TO BE OPERATED.  FN23  THESE MEN,
HOWEVER, WERE TO BE HIRED BY THE MASTER OF THE SHIP AND WERE TO BE
SUBJECT TO HIS ORDERS ONLY.  THE RESPONSIBILITY OF EMPLOYING THE
OFFICERS, SO THE REGULATIONS SHOW, WAS VESTED EXCLUSIVELY IN THE
MASTER,  FN24  AND THE MEN SO HIRED BECAME EMPLOYEES OF THE UNITED
STATES AND NOT OF THE GENERAL AGENT.  FN25 

PREVIOUSLY EXISTING COLLECTIVE BARGAINING AGREEMENTS WERE ADHERED TO
SO THAT SEAMEN'S CONDITIONS OF EMPLOYMENT WOULD BE DISRUPTED AS LITTLE
AS POSSIBLE BY THE CHANGE-OVER OCCASIONED BY GOVERNMENT REQUISITION OF
THE VESSELS.  SEE THE WAR SHIPPING ADMINISTRATION'S OVER-ALL COLLECTIVE
BARGAINING ARRANGEMENT WITH THE NINE PRINCIPAL MARITIME UNIONS, KNOWN
AS THE "STATEMENTS OF POLICY," WSA OPERATIONS REGULATIONS 1, MAY 25,
1942.  ALTHOUGH THE WAR SHIPPING ADMINISTRATION SEAMEN FELL WITHIN THE
EXCLUSION OF EMPLOYEES OF THE UNITED STATES FROM THE COVERAGE OF THE
NATIONAL LABOR RELATIONS ACT, THE ADMINISTRATOR ARRANGED TO UTILIZE THE
FACILITIES OF THE NATIONAL LABOR RELATIONS BOARD FOR THE DESIGNATION OF
BARGAINING UNITS, WHILE SPECIFICALLY RESERVING THE ADMINISTRATION'S
RIGHTS WITH RESPECT TO THE BOARD'S ABSENCE OF JURISDICTION OVER
PERSONNEL ABOARD WSA OPERATED VESSELS.  FN26  THE HOUSE COMMITTEE ON
MERCHANT MARINE AND FISHERIES, IN REPORTING THE CLARIFICATION ACT,
EXPRESSLY APPROVED OF THIS PRACTICAL SOLUTION OF THE COLLECTIVE
BARGAINING PROBLEM.  FN27  A SIMILAR PRACTICAL ARRANGEMENT WAS MADE IN
CONNECTION WITH THE FUNCTIONING OF THE WAR LABOR BOARD. 

THE SHIPPING ARTICLES SUMMARIZED ABOVE, PP. 785-786, COMPLIED WITH
THE TENOR OF THE GENERAL AGENCY AGREEMENT BY MAKING IT CLEAR THAT
RESPONDENT WAS AN EMPLOYEE OF THE UNITED STATES.  IN ORDER TO PAY THE
CREW AND THE OTHER EXPENSES INCIDENTAL TO THE OPERATION OF THE SHIP,
THE WAR SHIPPING ADMINISTRATION DEPOSITED FUNDS IN A SPECIAL JOINT BANK
ACCOUNT SET UP IN THE NAME OF THE AGENT "AS GENERAL AGENT FOR THE WAR
SHIPPING ADMINISTRATION."  FROM THIS SPECIAL ACCOUNT THE GENERAL AGENT
DREW THE FUNDS AND TURNED THEM OVER TO THE MASTER TO PAY THE CREW.  NO
MONEY OF THE GENERAL AGENT WAS USED FOR THIS PURPOSE OR IN THE
OPERATION OF THE VESSEL. 

THUS THE CASES AND AN ANALYSIS OF THE RELATIONS ESTABLISHED BY THE
STANDARD FORM AGREEMENT LEAD TO THE CONCLUSION THAT AN AGENT SUCH AS
COSMOPOLITAN, WHO CONTRACTS TO MANAGE CERTAIN SHORESIDE BUSINESS OF A
VESSEL OPERATED BY THE WAR SHIPPING ADMINISTRATION, IS NOT LIABLE TO A
SEAMAN FOR INJURY CAUSED BY THE NEGLIGENCE OF THE MASTER OR CREW OF
SUCH A VESSEL.  REVERSED. 

FN1  46 C.F.R. CUM. SUPP. SEC. 306.44. 

FN2  41 STAT. 1007, 46 U.S.C. SEC. 688, WHICH PROVIDES IN PERTINENT
PART: 

"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; ...  " 

FN3  57 STAT. 45, 50 U.S.C. APP. SEC. 1291. 

FN4  SEE TEXT, P. 796, INFRA. 

FN5  UNDER 46 U.S.C. SECS. 564, 565, 713, THE CREWMAN SIGNS THE
SHIPPING ARTICLES IN THE PRESENCE OF A UNITED STATES SHIPPING
COMMISSIONER WHO CERTIFIES THAT THE CREWMAN FULLY UNDERSTANDS THE
CONTENTS OF THE INSTRUMENT. 

FN6  NOTE 2, SUPRA. 

AS SEC. 33 SHOWS ON ITS FACE, A SEAMAN HAS THE ADVANTAGES OF THE ACT
ONLY AGAINST HIS EMPLOYER.  PANAMA R. CO. V. JOHNSON, 264 U.S. 375,
389; NOLAN V. GENERAL SEAFOODS CORP., 112 F.2D 515, 517; THE NORLAND,
101 F.2D 967; BAKER V. MOORE-MCCORMACK LINES, 57 F.SUPP.  207, 208;
EGGLESTON V. REPUBLIC STEEL CORP., 47 F.SUPP.  658, 659; GARDINER V.
AGWILINES, INC., 29 F.SUPP.  348. 

FN7  IT SHOULD BE NOTED THAT A CONCURRING OPINION ADDED TO THE
GROUNDS GIVEN IN THE COURT'S OPINION AN ARGUMENT THAT MOORE-MCCORMACK
WAS OWNER PRO HAC VICE.  328 U.S. 734.  THIS VIEW WAS AGAIN REJECTED IN
CALDAROLA V. ECKERT, 332 U.S. AT 159.  A CONTRACT SUCH AS THIS DOES NOT
GIVE "EXCLUSIVE POSSESSION, COMMAND, AND NAVIGATION OF THE VESSEL,"
REED V. UNITED STATES, 11 WALL.  591, 600, AND THEREFORE FAILS TO GIVE
THE OPERATOR AN OWNER'S POWER.  LEARY V. UNITED STATES, 14 WALL.  607,
611; UNITED STATES V. SHEA, 152 U.S. 178, 186-89. 

FN8  57 STAT. 45, 50 U.S.C. APP. SEC. 1291: 

"(A)  OFFICERS AND MEMBERS OF CREWS (HEREINAFTER REFERRED TO AS
'SEAMEN') EMPLOYED ON UNITED STATES OR FOREIGN FLAG VESSELS AS
EMPLOYEES OF THE UNITED STATES THROUGH THE WAR SHIPPING ADMINISTRATION
SHALL, WITH RESPECT TO (1) LAWS ADMINISTERED BY THE PUBLIC HEALTH
SERVICE AND THE SOCIAL SECURITY ACT, AS AMENDED BY SUBSECTION (B)(2)
AND (3) OF THIS SECTION; (2) DEATH, INJURIES, ILLNESS, MAINTENANCE AND
CURE, LOSS OF EFFECTS, DETENTION, OR REPATRIATION, OR CLAIMS ARISING
THEREFROM NOT COVERED BY THE FOREGOING CLAUSE (1); AND (3) COLLECTION
OF WAGES AND BONUSES AND MAKING OF ALLOTMENTS, HAVE ALL OF THE RIGHTS,
BENEFITS, EXEMPTIONS, PRIVILEGES, AND LIABILITIES, UNDER LAW APPLICABLE
TO CITIZENS OF THE UNITED STATES EMPLOYED AS SEAMEN ON PRIVATELY OWNED
AND OPERATED AMERICAN VESSELS.  SUCH SEAMEN, BECAUSE OF THE TEMPORARY
WARTIME CHARACTER OF THEIR EMPLOYMENT BY THE WAR SHIPPING
ADMINISTRATION, SHALL NOT BE CONSIDERED AS OFFICERS OR EMPLOYEES OF THE
UNITED STATES FOR THE PURPOSES OF THE UNITED STATES EMPLOYEES
COMPENSATION ACT, AS AMENDED; THE CIVIL SERVICE RETIREMENT ACT, AS
AMENDED; THE ACT OF CONGRESS APPROVED MARCH 7, 1942(PUBLIC LAW 490,
SEVENTY-SEVENTH CONGRESS); OR THE ACT ENTITLED 'AN ACT TO PROVIDE
BENEFITS FOR THE INJURY, DISABILITY, DEATH, OR DETENTION OF EMPLOYEES
OF CONTRACTORS WITH THE UNITED STATES AND CERTAIN OTHER PERSONS OR
REIMBURSEMENT THEREFOR', APPROVED DECEMBER 2, 1942(PUBLIC LAW 784,
SEVENTY-SEVENTH CONGRESS).  CLAIMS ARISING UNDER CLAUSE (1) HEREOF
SHALL BE ENFORCED IN THE SAME MANNER AS SUCH CLAIMS WOULD BE ENFORCED
IF THE SEAMAN WERE EMPLOYED ON A PRIVATELY OWNED AND OPERATED AMERICAN
VESSEL.  ANY CLAIM REFERRED TO IN CLAUSE (2) OR (3) HEREOF SHALL, IF
ADMINISTRATIVELY DISALLOWED IN WHOLE OR IN PART, BE ENFORCED PURSUANT
TO THE PROVISIONS OF THE SUITS IN ADMIRALTY ACT, NOTWITHSTANDING THE
VESSEL ON WHICH THE SEAMAN IS EMPLOYED IS NOT A MERCHANT VESSEL WITHIN
THE MEANING OF SUCH ACT.  ANY CLAIM, RIGHT, OR CAUSE OF ACTION OF OR IN
RESPECT OF ANY SUCH SEAMAN ACCRUING ON OR AFTER OCTOBER 1, 1941, AND
PRIOR TO THE DATE OF ENACTMENT OF THIS SECTION MAY BE ENFORCED, AND
UPON THE ELECTION OF THE SEAMAN OR HIS SURVIVING DEPENDENT OR
BENEFICIARY, OR HIS LEGAL REPRESENTATIVE TO DO SO SHALL BE GOVERNED, AS
IF THIS SECTION HAD BEEN IN EFFECT WHEN SUCH CLAIM, RIGHT, OR CAUSE OF
ACTION ACCRUED, SUCH ELECTION TO BE MADE IN ACCORDANCE WITH RULES AND
REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, WAR SHIPPING
ADMINISTRATION.  RIGHTS OF ANY SEAMAN UNDER THE SOCIAL SECURITY ACT, AS
AMENDED BY SUBSECTION (B)(2) AND (3), AND CLAIMS THEREFOR SHALL BE
GOVERNED SOLELY BY THE PROVISIONS OF SUCH ACT, SO AMENDED.  WHEN USED
IN THIS SUBSECTION THE TERM 'ADMINISTRATIVELY DISALLOWED' MEANS A
DENIAL OF A WRITTEN CLAIM IN ACCORDANCE WITH RULES OR REGULATIONS
PRESCRIBED BY THE ADMINISTRATOR, WAR SHIPPING ADMINISTRATION.  ...  " 

FN9  SEE THE DISCUSSION OF THE BRADY CASE AT 328 U.S. 745-47. 

FN10  NEWSBOYS, LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111,
120, 128-31; UNLOADERS OF COAL CARS, UNITED STATES V. SILK, 331 U.S.
704, 713; MEAT BONERS, RUTHERFORD FOOD CORP. V. MCCOMB, 331 U.S. 722. 

FN11  BUT COMPARE ROBINSON V. BALTIMORE & OHIO R. CO., 237 U.S. 84,
94: 

"WE ARE OF THE OPINION THAT CONGRESS USED THE WORDS 'EMPLOYE' AND
'EMPLOYED' IN THE STATUTE IN THEIR NATURAL SENSE, AND INTENDED TO
DESCRIBE THE CONVENTIONAL RELATION OF EMPLOYER AND EMPLOYE." 

HULL V. PHILADELPHIA & READING R. CO., 252 U.S. 475. 

FN12  IT IS MUCH THE SAME TYPE OF PROBLEM AS WAS PRESENTED IN BARTELS
V. BIRMINGHAM, 332 U.S. 126.  THERE WE CONCLUDED THAT THE LEADER AND
ORGANIZER OF A TRAVELING ORCHESTRA WAS THE EMPLOYER OF THE BAND MEMBERS
RATHER THAN THE VARIOUS DANCE HALL PROPRIETORS FOR WHOM THE ORCHESTRA
PERFORMED. 

FN13  FOR A FULL DISCUSSION SEE THE DISSENT IN HUST V. MOORE
MCCORMACK, 328 U.S. 707, 744, AND THE EXCERPTS FROM THE SENATE AND
HOUSE REPORTS, FOOTNOTES 9 AND 10. 

FOR THE BACKGROUND OF THE STATUTORY DISTINCTIONS DRAWN BETWEEN PUBLIC
VESSELS AND MERCHANT VESSELS, SEE CANADIAN AVIATOR, LTD. V. UNITED
STATES, 324 U.S. 215, 218-22; AMERICAN STEVEDORES V. PORELLO, 330 U.S.
446, 450-54. 

FN14  ALTHOUGH CONGRESS HAS NOT ENACTED LEGISLATION TO MAKE ENTIRELY
CLEAR THE REMEDIES OF W.S.A. SEAMEN AGAINST THE UNITED STATES FOR
TORTS, THERE HAS BEEN AN EFFORT TO DO SO.  H.R. 4873, 80TH CONG., 2D
SESS., SOUGHT TO DO SO BY AMENDING THE SUITS IN ADMIRALTY ACT, SEC. 5,
41 STAT. 525, 526, SO AS TO MAKE THE REMEDY IN ADMIRALTY OF THAT ACT
EXCLUSIVE AS TO THE SAME SUBJECT MATTER SO AS TO PROTECT THE GENERAL
AGENT FROM SUITS SUCH AS HUST OR CALDAROLA.  THE BILL WAS PASSED BY THE
HOUSE JUNE 8, 1948, 94 CONG. REC. 7388-89, BUT WAS NOT PASSED BY THE
SENATE.  H.R. 483 AND 4051 OF THE 81ST CONG., 1ST SESS., TO THE SAME
EFFECT, ARE NOW PENDING.  IN H.R. REP. NO. 2060 ON H.R. 4873, 80TH
CONG., 2D SESS., THE COMMITTEE ON THE JUDICIARY SAID, P. 2: 

"THEN THE SUPREME COURT ON JUNE 23, 1947, HANDED DOWN ITS DECISION IN
CALDAROLA V. ECKERT (332 U.S. 155), WHICH CLARIFIED, IN THE OPINION OF
THE COMMITTEE, THE RULE PREVIOUSLY ANNOUNCED SO AS TO MAKE IT PLAIN
THAT THE AGENT WHILE LIABLE FOR THE NEGLIGENCE OF ITS OWN EMPLOYEES WAS
NOT LIABLE FOR THE NEGLIGENCE OF THE CIVIL-SERVICE MASTERS AND CREWS
WITH WHOM THE UNITED STATES MANNED THE VESSELS.  FOR THE NEGLIGENCE OF
THOSE, THE UNITED STATES WAS THE ONLY RESPONSIBLE PARTY.  THE COMMITTEE
BELIEVES THAT LITIGANTS SHOULD NOT BE MADE THE VICTIMS OF THE LEGAL
CONFUSION REGARDING THE PROPER REMEDY IN SUCH CASES, AND ARE NOT
RESPONSIBLE FOR THE CONDITIONS BROUGHT ABOUT BY THE LACK OF CLARITY IN
THE OPINIONS OF THE SUPREME COURT.  LEGISLATIVE RELIEF IS REQUISITE NOT
ONLY TO SAVE TO LITIGANTS POSSESSING MERITORIOUS CLAIMS THEIR RIGHT TO
A DAY IN COURT, BUT ALSO TO SETTLE THE QUESTION OF REMEDY IN FUTURE
CASES." 

FN15  EXECUTIVE ORDER 9054 OF FEBRUARY 7, 1942, ISSUED UNDER THE
FIRST WAR POWERS ACT OF DECEMBER 18, 1941, 55 STAT. 838.  3 C.F.R. CUM.
SUPP. 1086. 

FN16  PROMULGATED BY THE ADMINISTRATOR, WAR SHIPPING ADMINISTRATION,
IN GENERAL ORDER NO. 21, SEPT. 22, 1942, AND SUPP. 4 THERETO, DEC. 29,
1943.  7 FED. REG. 7561; 8 FED. REG. 17512. 

FN17  ARTICLE 2 OF THE GENERAL AGENCY AGREEMENT, FORM GAA 4-4-42, AND
ARTICLE 2 OF THE BERTH AGENCY AGREEMENT, FORM BA 12-29-43. 

FN18  EXAMPLES OF SUCH CONTRACTS ARE CONTAINED IN THE RECORD OF
CALDAROLA V. ECKERT, 332 U.S. 155, NO. 625, 1946 TERM. 

FN19  FOR EXAMPLE, SEE OPERATIONS REGULATIONS NOS. 27(TOWAGE
CONTRACTS); 84(DUTIES OF BERTH AGENTS, GENERAL AGENTS, AND AGENTS);
97(BUNKER OIL CONTRACTS); 99, SUPP. 1 AND 2(PILFERAGE). 

FN20  GENERAL ORDER NO. 42 OF THE WAR SHIPPING ADMINISTRATION, 9 F.R.
4110. 

FN21  SEE LETTER OF APRIL 28, 1947, FROM THE GENERAL COUNSEL OF THE
MARITIME COMMISSION TO THE DEPARTMENT OF JUSTICE. 

FN22  SEE THE STATEMENTS OF POLICY OF MAY 4 AND MAY 12, 1942, ISSUED
BY THE WAR SHIPPING ADMINISTRATION AND THE VARIOUS MARITIME UNIONS. 
WSA OPERATIONS REGULATION NO. 1. 

FN23  ARTICLE 3A (D) OF THE GENERAL AGENCY AGREEMENT, SET OUT IN TEXT
OF OPINION AT P. 796. 

FN24  OPERATIONS REGULATIONS NO. 15, DIRECTIVE NO. 2, ISSUED BY THE
WAR SHIPPING ADMINISTRATION PROVIDED:  "THE MASTER OF A VESSEL HAS FULL
DISCRETION IN SIGNING ON CREW MEMBERS AND MAY REJECT ANY PERSON SEEKING
EMPLOYMENT  ...  RECORDS SHALL BE KEPT OF THE NAMES OF THOSE REJECTED
AND OF THE REASON FOR REJECTION AND SHALL BE SUBMITTED TO THE PORT
OFFICE OF THE RECRUITMENT AND MANNING ORGANIZATION OF THE WAR SHIPPING
ADMINISTRATION IN THE PORT IN WHICH THE REJECTION OCCURS." 

FN25  SEE RESTATEMENT, AGENCY, SEC. 79, COMMENT (A). 

FN26  SEE LETTER OF OCTOBER 20, 1942, FROM THE WAR SHIPPING
ADMINISTRATION TO THE NATIONAL LABOR RELATIONS BOARD, AND THE REPLY OF
OCTOBER 26, 1942, RECORD, PP. 43-51, IN NO. 360, FINK V. SHEPARD
STEAMSHIP CO., POST, P. 810. 

FN27  H.R. REP. NO. 107, 78TH CONG., 1ST SESS., PP. 23-24. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR.
JUSTICE RUTLEDGE DISSENT. 
..END :
























WEADE V. DICHMANN CO., 337 U.S. 801 


NO. 179.  ARGUED FEBRUARY 1, 1949.  - DECIDED JUNE 27, 1949.  - 168 F.2D
914, MODIFIED AND AFFIRMED. 


1.  RESPONDENT WAS EMPLOYED BY THE UNITED STATES AS A GENERAL AGENT
UNDER THE TERMS OF THE WAR-TIME STANDARD FORM OF GENERAL AGENCY
AGREEMENT TO MANAGE CERTAIN PHASES OF THE BUSINESS OF A SHIP OWNED BY
THE UNITED STATES AND OPERATED BY THE WAR SHIPPING ADMINISTRATION.  BY
AN ADDENDUM TO THE AGREEMENT, IT WAS ALSO REQUIRED TO ARRANGE FOR THE
TRANSPORTATION OF PASSENGERS AS AGENT OF THE UNITED STATES.  CERTAIN
WOMEN PASSENGERS AND THE HUSBAND OF ONE OF THEM SUED RESPONDENT FOR
DAMAGES SUSTAINED THROUGH INJURIES TO THE WOMEN RESULTING FROM THE
WRONGFUL ACT OF A MEMBER OF THE SHIP'S CREW.  HELD:  RESPONDENT WAS NOT
LIABLE AS THE OWNER PRO HAC VICE, OR AS A COMMON CARRIER OPERATING THE
VESSEL, OR AS THE EMPLOYER OF THE MASTER OR CREW.  COSMOPOLITAN
SHIPPING CO. V. MCALLISTER, ANTE, P. 783.  PP. 802-809. 

2.  PERFORMANCE OF SUCH SHORESIDE DUTIES AS ISSUING TICKETS,
MAINTAINING THE VESSEL IN THE SERVICE DIRECTED BY THE UNITED STATES,
MAINTAINING TERMINALS AND OFFICES, ARRANGING FOR LOADING AND UNLOADING
PASSENGERS, ARRANGING FOR ADVERTISING, PROVISIONING THE SHIP, AND
PROCURING OFFICERS AND CREW FOR HIRE BY THE MASTER, ALL AS AGENT OF THE
UNITED STATES, DID NOT MAKE THE GENERAL AGENT LIABLE AS A COMMON
CARRIER TO THE PUBLIC OR ANYONE.  PP. 805-808. 

3.  PETITIONERS ARGUED HERE THAT RESPONDENT AS AN AGENT IS
INDEPENDENTLY LIABLE FOR ITS NEGLIGENCE IN PROCURING UNSUITABLE CREW
MEMBERS; BUT THIS THEORY OF LIABILITY WAS NOT RELIED UPON AT THE TRIAL,
INSTRUCTIONS UPON THE POINT WERE NOT GIVEN OR REQUESTED, AND NO
EXCEPTIONS WERE TAKEN BY PETITIONER TO THE INSTRUCTIONS GIVEN.  HELD:
IN THESE CIRCUMSTANCES, ERROR CANNOT BE URGED HERE AS TO THIS POINT. 
P. 808. 

4.  THERE BEING SUGGESTIONS IN THE COMPLAINT AND EVIDENCE OF ALLEGED
LIABILITY OF RESPONDENT TO PETITIONERS FOR RESPONDENT'S OWN NEGLIGENCE
WHILE ACTING AS GENERAL AGENT, THE COURT OF APPEALS, WHICH REVERSED THE
TRIAL COURT'S JUDGMENT FOR PETITIONERS, ERRED IN DIRECTING THE TRIAL
COURT TO ENTER A JUDGMENT FOR RESPONDENT.  PP. 808-809. 

5.  NO OPINION IS EXPRESSED AS TO THE CIRCUMSTANCES IN WHICH
RESPONDENT MIGHT BE LIABLE FOR ITS OWN ACTIONS AS GENERAL AGENT.  P.
809. 

WEADE ET AL. V. DICHMANN, WRIGHT & PUGH, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

A FEDERAL DISTRICT COURT GAVE A JUDGMENT TO CERTAIN PASSENGERS AND
THE HUSBAND OF ONE OF THEM AGAINST A GENERAL AGENT EMPLOYED BY THE
UNITED STATES TO MANAGE CERTAIN PHASES OF THE BUSINESS OF A SHIP OWNED
BY THE UNITED STATES AND OPERATED BY THE WAR SHIPPING ADMINISTRATION,
FOR INJURIES SUSTAINED AS A RESULT OF THE WRONGFUL CONDUCT OF A MEMBER
OF THE SHIP'S CREW.  THE COURT OF APPEALS REVERSED.  168 F.2D 914. 
THIS COURT GRANTED CERTIORARI.  335 U.S. 810.  MODIFIED AND AFFIRMED,
P. 809. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

ON AUGUST 3, 1945, AT OLD POINT COMFORT, VIRGINIA, PETITIONERS, MRS.
LILLIAN A. WEADE AND MRS. ROBERTA L. STINEMEYER, PURCHASED TICKETS AND
EMBARKED AS PASSENGERS ON THE METEOR, A STEAMBOAT OWNED BY THE UNITED
STATES THROUGH THE WAR SHIPPING ADMINISTRATION AND OPERATING BETWEEN
NORFOLK, VIRGINIA, AND WASHINGTON, D.C.  THE LADIES RETIRED TO THEIR
STATEROOM ABOUT 11:00 P.M. AND BECAUSE OF THE WARM WEATHER OPENED BOTH
THE GLASS AND THE SHUTTER OF THE WINDOW WHICH FACED ONTO THE BOAT
DECK.  DURING THE NIGHT THE SECOND COOK OF THE METEOR ENTERED THE
STATEROOM THROUGH THE OPEN WINDOW AND RAPED MRS. WEADE, WHO WAS
SLEEPING IN THE LOWER BERTH.  MRS. STINEMEYER SUFFERED FRIGHT AND SHOCK
FROM WITNESSING THIS ATROCITY.  THE PERPETRATOR OF THE CRIME WAS
SUBSEQUENTLY TRIED, CONVICTED, AND EXECUTED. 

THIS CASE INVOLVES THE LIABILITY OF A GENERAL AGENT TO PASSENGERS
UNDER A CONTRACT SIMILAR TO THAT DISCUSSED IN COSMOPOLITAN SHIPPING CO.
V. MCALLISTER, ANTE, P. 783, DECIDED THIS DAY.  THE AGENCY AGREEMENT
COVERED PASSENGER BOATS THROUGH AN ADDENDUM TO THE CONTRACT PROVIDING
FOR ADDITIONAL SERVICES BY THE GENERAL AGENT.  FN1 

PETITIONERS, LILLIAN A. WEADE AND HER HUSBAND, INSTITUTED A CIVIL
ACTION FOR DAMAGES AGAINST RESPONDENT IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF VIRGINIA.  THE HUSBAND ALLEGED AS HIS
DAMAGES LOSS OF CONSORTIUM AND THE EXPENSES OF THE HOSPITALIZATION OF
HIS WIFE.  PETITIONER MRS. STINEMEYER BROUGHT A SEPARATE CIVIL ACTION
FOR HER DAMAGES IN THE SAME COURT.  JURISDICTION IN BOTH ACTIONS WAS
BASED ON DIVERSITY OF CITIZENSHIP, AND THE TWO CIVIL ACTIONS WERE
CONSOLIDATED FOR TRIAL.  IN ADDITION MRS. WEADE FILED A LIBEL IN
ADMIRALTY AGAINST THE UNITED STATES, WHICH ACTION HAS BEEN CONTINUED
PENDING THE FINAL DETERMINATION OF THE PRESENT PROCEEDINGS. 

THE COMPLAINT OF MR. AND MRS. WEADE ALLEGED, SO FAR AS NOW IMPORTANT,
THAT THE STEAMBOAT WAS OPERATED AS A COMMON CARRIER BY RESPONDENT AND
THAT PETITIONERS WERE INJURED THROUGH THE FAILURE OF RESPONDENT TO
PROVIDE ADEQUATE PROTECTION FOR ITS PASSENGERS FROM THE PERSONAL
MISCONDUCT OF ITS EMPLOYEES, AND THROUGH THE FAILURE TO USE DUE CARE IN
THE SELECTION OF RELIABLE, CAREFUL, AND COMPETENT EMPLOYEES.  THE
COMPLAINT OF MRS. STINEMEYER IS SUBSTANTIALLY THE SAME AS TO THE
SPECIFICATIONS OF NEGLIGENCE, THOUGH IT DID NOT ASSERT THAT RESPONDENT
ITSELF WAS A COMMON CARRIER, BUT DID ALLEGE THAT THE INJURY OCCURRED
THROUGH THE ACT OF RESPONDENT'S EMPLOYEES.  THE RESPONDENT'S ANSWER
DENIED THAT THE VESSEL WAS OPERATED BY IT AS A COMMON CARRIER AND THAT
THE MASTER AND CREW OF THE VESSEL WERE ITS EMPLOYEES.  THE ANSWER
FURTHER ALLEGED THAT THE VESSEL WAS OPERATED BY THE WAR SHIPPING
ADMINISTRATION, AND THAT RESPONDENT ONLY PERFORMED CERTAIN SERVICES FOR
THE OWNER OF THE SHIP AS GENERAL AGENT IN ACCORDANCE WITH THE STANDARD
SERVICE AGREEMENT. 

THE JURY AS TRIERS OF FACT IN THIS CIVIL PROCEEDING WERE INSTRUCTED
AS A MATTER OF LAW THAT BY VIRTUE OF THE CONTRACT RESPONDENT WAS THE
ACTUAL OPERATOR OF THE VESSEL AS A COMMON CARRIER OWING THE HIGHEST
DEGREE OF CARE TO ITS PASSENGERS.  THE TRIAL JUDGE FURTHER CHARGED
THAT, AS A COMMON CARRIER, THIS DUTY TO EXERCISE THE HIGHEST DEGREE OF
CARE EXTENDED TO ALL ACTS OF THE CARRIER AND INCLUDED THE PROVIDING OF
SAFE ACCOMMODATIONS AND PROTECTION FOR PASSENGERS, THE PROVIDING OF A
SUITABLE NUMBER OF WATCHMEN, AND THE SELECTION OF COMPETENT, CAREFUL,
AND SOBER EMPLOYEES.  THE JURY RETURNED VERDICTS FOR PETITIONERS, AND
THE TRIAL JUDGE DENIED THE MOTION OF THE RESPONDENT FOR JUDGMENT
NOTWITHSTANDING THE VERDICT, STATING AS HIS REASON THEREFOR:  "WHILE
THE CASE OF HUST V. MOORE-MCCORMACK LINES, INCORPORATED, 328 U.S. 707,
IS NOT PRECISELY IN POINT, IT IS MY VIEW THAT IT IS CONTROLLING SO FAR
AS THE LIABILITY OF THE DEFENDANT IS CONCERNED."  ON APPEAL THE COURT
OF APPEALS FOR THE FOURTH CIRCUIT REVERSED AND HELD THAT UNDER
CALDAROLA V. ECKERT, 332 U.S. 155, RESPONDENT WAS NOT THE OWNER PRO HAC
VICE IN POSSESSION AND CONTROL OF THE VESSEL AND THUS COULD NOT BE
LIABLE AS A COMMON CARRIER FOR THE SAFETY OF THE PASSENGERS.  DICHMANN,
WRIGHT & PUGH V. WEADE, 168 F.2D 914. 

UNDER OUR HOLDING TODAY IN NO. 351, COSMOPOLITAN SHIPPING CO. V.
MCALLISTER, ANTE, P. 783, THE INSTRUCTIONS REFERRED TO ABOVE WERE
ERRONEOUS.  RESPONDENT WAS NOT THE OWNER PRO HAC VICE, WAS NOT A COMMON
CARRIER OPERATING THE VESSEL, AND WAS NOT THE EMPLOYER OF THE MASTER OR
CREW.  THE TRIAL OF THE PRESENT PROCEEDING REVOLVED AROUND THESE
QUESTIONS AND DID NOT CONCERN THE PROBLEM OF NEGLIGENCE ON THE PART OF
RESPONDENT OR OF ITS OWN AGENTS IN HANDLING THE SHIP OR CREW ON VOYAGE
AS AN AGENT OF THE UNITED STATES AS DISTINGUISHED FROM AN EMPLOYER OF
THE MASTER AND CREW OR OWNER PRO HAC VICE. 

PETITIONERS URGE IN POINT 3 OF THEIR BRIEF AS A GROUND FOR UPHOLDING
THE DECISION OF THE TRIAL COURT THAT RESPONDENT, BECAUSE OF THE DUTIES
IMPOSED UPON IT BY THE GENERAL AGENCY AGREEMENT, WAS LIABLE AS A COMMON
CARRIER AS FAR AS THE PUBLIC WAS CONCERNED.  IN SUPPORT OF THIS
CONTENTION THEY POINT TO THE DUTIES OF THE GENERAL AGENT TO ISSUE
TICKETS, MAINTAIN THE VESSEL IN THE SERVICE DIRECTED BY THE UNITED
STATES, MAINTAIN TERMINALS AND OFFICES, ARRANGE FOR THE LOADING AND
UNLOADING OF PASSENGERS, ARRANGE FOR ADVERTISING, PROVISION THE SHIP,
AND PROCURE OFFICERS AND CREW FOR HIRE BY THE MASTER.  THE PERFORMANCE
OF SUCH SHORESIDE DUTIES, HOWEVER, DOES NOT MAKE THE AGENT LIABLE AS A
COMMON CARRIER TO THE PUBLIC OR ANYONE.  FN2 

AT THE INSISTENCE OF THE NAVY, THE WAR SHIPPING ADMINISTRATION IN
1945 INSTITUTED A NIGHTLY SERVICE OF TWO STEAMBOATS BETWEEN NORFOLK AND
WASHINGTON.  THE NAME GIVEN TO THIS SERVICE WAS THE WASHINGTON-HAMPTON
ROADS LINE, AND THE METEOR WAS ONE OF THE TWO VESSELS EMPLOYED
THEREIN.  THESE TWO VESSELS WERE ASSIGNED TO RESPONDENT AS GENERAL
AGENT BY A PASSENGER ADDENDUM TO THE STANDARD GAA 4-4-42 AGREEMENT,
FN3  UNDER WHICH RESPONDENT HAD BEEN GENERAL AGENT FOR SOME TWENTY
CARGO VESSELS.  IT WILL BE NOTED THAT, UNDER ARTICLE 3A (F) OF THE
ADDENDUM, THE GENERAL AGENT WAS TO ARRANGE FOR THE TRANSPORTATION OF
PASSENGERS AND TO ISSUE TICKETS FOR THIS PURPOSE.  THE TICKET, WHICH IS
SET OUT IN THE MARGIN,  FN4  BEARS THE EXPRESS NOTATION THAT THE
STEAMBOAT LINE WAS "OPERATED BY UNITED STATES OF AMERICA, WAR SHIPPING
ADMINISTRATION," AND THAT RESPONDENT WAS SERVING IN THE CAPACITY OF AN
AGENT. 

RESPONDENT'S DUTIES WERE TO SERVICE THE SHIPS AND TO "ARRANGE FOR THE
TRANSPORTATION" OF PASSENGERS ON THEM.  THE DUTY OF A COMMON CARRIER,
ON THE OTHER HAND, IS TO TRANSPORT FOR HIRE WHOEVER EMPLOYS IT.  FN5
HERE THE CONTRACT CALLED FOR THE ACTUAL TRANSPORTATION TO BE CARRIED
OUT BY THE WAR SHIPPING ADMINISTRATION.  THE RESPONDENT'S DUTIES ENDED
AT THE SHORE LINE.  COSMOPOLITAN SHIPPING CO. V. MCALLISTER, SUPRA.
THE CASES CITED BY PETITIONER HOLDING A TRANSPORTATION AGENT LIABLE AS
A COMMON CARRIER INVOLVE SITUATIONS WHERE THE ACTUAL MOVEMENT OF GOODS
OR PASSENGERS WAS CARRIED OUT BY THE AGENT.  FN6  UNDER THE CONTRACT
RESPONDENT HERE WAS NOT IN ANY WAY ENGAGED IN THE CARRIAGE OF
PASSENGERS BETWEEN NORFOLK AND WASHINGTON AND HAD NEVER HELD ITSELF OUT
TO THE PUBLIC AS READY TO ENGAGE IN SUCH TRAFFIC.  AS A MERE ARRANGER
OF TRANSPORTATION IT DOES NOT INCUR THE LIABILITY OF A COMMON CARRIER. 

APART FROM THEIR RELIANCE UPON RESPONDENT'S CONTROL OF THE VESSEL ON
VOYAGE UNDER THE AGENCY CONTRACT, PETITIONERS FURTHER ARGUE THAT
RESPONDENT AS AN AGENT IS INDEPENDENTLY LIABLE FOR ITS NEGLIGENCE IN
PROCURING UNSUITABLE CREW MEMBERS.  THIS THEORY OF LIABILITY WAS NOT
RELIED UPON AT THE TRIAL.  INSTRUCTIONS UPON THE POINT WERE NOT GIVEN
OR REQUESTED.  THE COURT DID CHARGE THAT AS PRINCIPAL AND OPERATOR OF
THE VESSEL THE RESPONDENT WAS RESPONSIBLE FOR ANY TORT COMMITTED BY THE
STEAMSHIP PERSONNEL AND AS A COMMON CARRIER WAS UNDER THE DUTY TO
EXERCISE THE HIGHEST DEGREE OF CARE FOR THE SAFETY OF THE PASSENGERS
INCLUDING THE SELECTION OF PERSONNEL.  IT WAS UPON THE BASIS OF
RESPONDENT'S LIABILITY AS COMMON CARRIER THAT PETITIONERS DEVELOPED
THEIR CAUSES OF ACTION, AND UPON THAT THEORY THE JURY, UNDER THE
INSTRUCTIONS DISCUSSED ABOVE, RETURNED A VERDICT IN THEIR FAVOR.  AT
THE CONCLUSION OF THE TRIAL JUDGE'S CHARGE, COUNSEL FOR PETITIONERS
STATED, "IF YOUR HONOR PLEASE, WE HAVE NO EXCEPTIONS."  UNDER THESE
CIRCUMSTANCES, ERROR CANNOT BE URGED AS TO THIS POINT.  SEE RULE 8(1),
SUPREME COURT OF THE UNITED STATES; RULE 51 OF THE FEDERAL RULES OF
CIVIL PROCEDURE; UNITED STATES V. ATKINSON, 297 U.S. 157. 

BY THE DECISION BELOW, THE TRIAL COURT WAS DIRECTED TO ENTER A
JUDGMENT FOR RESPONDENT, WHICH HAD FILED A MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT.  AS THERE WERE SUGGESTIONS IN THE
COMPLAINT AND EVIDENCE OF ALLEGED LIABILITY OF RESPONDENT TO
PETITIONERS FOR RESPONDENT'S OWN NEGLIGENCE WHILE ACTING AS GENERAL
AGENT, THIS DIRECTION SHOULD NOT HAVE BEEN GIVEN.  SEE BRADY V.
ROOSEVELT S.S. CO., 317 U.S. 575.  FN7  THE DECISION IS MODIFIED SO AS
TO ELIMINATE THE DIRECTION TO ENTER JUDGMENT.  FN8 

WE EXPRESS NO OPINION AS TO WHAT CIRCUMSTANCES MIGHT FIX LIABILITY
UPON THE RESPONDENT FOR ITS OWN ACTIONS AS GENERAL AGENT.  AFFIRMED AS
MODIFIED. 

FN1  SEE NOTE 3, INFRA, AND 46 C.F.R. CUM. SUPP. SEC. 306.44. 

FN2  SEE COSMOPOLITAN SHIPPING CO. V. MCALLISTER, ANTE, P. 783. 

FN3  "WHEREAS, THE UNITED STATES OF AMERICA (HEREIN CALLED THE
'UNITED STATES') ACTING BY AND THROUGH THE ADMINISTRATOR, WAR SHIPPING
ADMINISTRATION, AND DICHMANN, WRIGHT & PUGH, INC. (HEREIN CALLED THE
'GENERAL AGENT') ENTERED INTO AN AGREEMENT (CONTRACT WSA-4098) DATED
JANUARY 9, 1943(HEREIN CALLED THE 'SERVICE AGREEMENT') WHEREBY THE
UNITED STATES APPOINTED THE GENERAL AGENT AS ITS AGENT TO MANAGE AND
CONDUCT THE BUSINESS OF CARGO VESSELS ASSIGNED TO IT BY THE UNITED
STATES; AND 

"WHEREAS, IT IS DESIRABLE TO HAVE AS FAR AS PRACTICABLE BOTH CARGO
VESSELS AND PASSENGER VESSELS OPERATED UNDER THE UNIFORM PROVISIONS OF
ONE AGREEMENT. 

"NOW, THEREFORE: 

"THE UNITED STATES AND THE GENERAL AGENT AGREE THAT PASSENGER VESSELS
HERETOFORE OR HEREAFTER ALLOCATED TO THE GENERAL AGENT TO CONDUCT THE
BUSINESS OF THE VESSELS AS AGENT OF THE UNITED STATES SHALL BE GOVERNED
BY THE PROVISIONS OF THE SERVICE AGREEMENT MODIFIED AS FOLLOWS: 

"SECTION 1.  ARTICLE 3A OF THE SERVICE AGREEMENT IS HEREBY AMENDED BY
ADDING A PROVISION FOLLOWING SUBSECTION (E) THEREOF AS FOLLOWS: 

"'(F) SHALL ARRANGE FOR THE TRANSPORTATION OF PASSENGERS WHEN SO
DIRECTED, AND ISSUE OR CAUSE TO BE ISSUED TO SUCH PASSENGERS CUSTOMARY
PASSENGER TICKETS.  AFTER A UNIFORM PASSENGER TICKET SHALL HAVE BEEN
ADOPTED BY THE UNITED STATES, SUCH PASSENGER TICKET SHALL BE USED IN
ALL CASES AS SOON AS PRACTICABLE AFTER RECEIPT THEREOF BY THE GENERAL
AGENT.  PENDING THE ISSUANCE OF SUCH UNIFORM PASSENGER TICKET, THE
GENERAL AGENT MAY CONTINUE TO USE ITS CUSTOMARY FORM OF PASSENGER
TICKET.' 

"SECTION 2.  THE VESSELS TO WHICH THE SERVICE AGREEMENT WILL APPLY BY
OPERATION OF THIS PART II, ARE AS LISTED ON EXHIBIT B ATTACHED HERETO
AND MADE A PART HEREOF, AND SUCH ADDITIONAL VESSELS AS MAY FROM TIME TO
TIME BE ASSIGNED TO THE GENERAL AGENT BY LETTER AGREEMENT. 

"IN WITNESS WHEREOF  ...  " 

FN4

        "ISSUED BY

                    "WASHINGTON-HAMPTON ROADS LINE 

"OPERATED BY UNITED STATES OF AMERICA, WAR SHIPPING ADMINISTRATION

                       "ONE FIRST CLASS PASSAGE

         "NORFOLK, OR OLD POINT COMFORT VA. TO WASHINGTON, D.C.

           "SUBJECT TO THE FOLLOWING CONTRACT: 

"THIS TICKET IS VOID UNLESS OFFICIALLY STAMPED AND DATED. 

"BAGGAGE VALUATION IS LIMITED TO $100 FOR AND ADULT AND $50 FOR A
CHILD, UNLESS PURCHASER HEREOF DECLARES A GREATER VALUATION AT TIME
BAGGAGE IS PRESENTED FOR TRANSPORTATION AND PAYS EXCESS VALUATION
CHARGES ACCORDING TO TARIFF RATES, RULES AND REGULATIONS. 

"THE COMPANY WILL UNDER NO CIRCUMSTANCES BE RESPONSIBLE FOR ANY
MONEYS OR VALUABLES UNLESS DEPOSITED WITH THE PURSER ON STEAMER, NOR
WILL THEY BE RESPONSIBLE FOR ANY BAGGAGE UNLESS PROPERLY CHECKED. 

"THIS TICKET IS LIMITED FOR PASSAGE WITHIN THIRTY DAYS FROM DATE OF
SALE STAMPED ON BACK. 

"DICHMANN, WRIGHT & PUGH, INC., AGENT. 

"I. S. WALKER, GEN. PASSENGER AGENT." 

FN5  NIAGARA V. CORDES, 21 HOW.  7, 22; WASHINGTON EX REL. STIMSON
LUMBER CO. V. KUYKENDALL, 275 U.S. 207, 211; UNITED STATES V. BROOKLYN
EASTERN DISTRICT TERMINAL, 249 U.S. 296, 305-306.  CF. LEHIGH VALLEY R.
CO. V. UNITED STATES, 243 U.S. 444; I.C.C. V. DELAWARE, LACKAWANNA &
WESTERN R. CO., 220 U.S. 235. 

FN6  UNITED STATES V. BROOKLYN TERMINAL, 249 U.S. 296; UNION STOCK
YARD CO. V. UNITED STATES, 308 U.S. 213. 

FN7  SEE 2 RESTATEMENT, AGENCY SEC. 358. 

FN8  GLOBE LIQUOR CO. V. SAN ROMAN, 332 U.S. 571; CONE V. WEST
VIRGINIA PAPER CO., 330 U.S. 212. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR.
JUSTICE RUTLEDGE DISSENT. 
..END :














FINK V. SHEPARD S.S. CO., 337 U.S. 810 


ARGUED FEBRUARY 2, 1949.  - DECIDED JUNE 27, 1949.  - 183 ORE.  373, 192
P.2D 258, AFFIRMED.  - 169 F.2D 612, AFFIRMED. 


1.  A GENERAL AGENT EMPLOYED BY THE UNITED STATES UNDER THE TERMS OF
THE WAR-TIME STANDARD FORM OF GENERAL AGENCY AGREEMENT TO MANAGE
CERTAIN PHASES OF THE BUSINESS OF A SHIP OWNED BY THE UNITED STATES AND
OPERATED BY THE WAR SHIPPING ADMINISTRATION IS NOT LIABLE UNDER SEC. 33
OF THE MERCHANT MARINE ACT OF 1920, KNOWN AS THE JONES ACT, TO A MEMBER
OF THE CREW OF THE SHIP WHO SUFFERED PHYSICAL INJURY THROUGH THE
NEGLIGENCE OF ITS MASTER AND OFFICERS, WHEN THE INJURY OCCURRED AFTER
MARCH 24, 1943, THE DATE OF ENACTMENT OF THE WAR SHIPPING
ADMINISTRATION ACT, KNOWN AS THE CLARIFICATION ACT.  COSMOPOLITAN
SHIPPING CO. V. MCALLISTER, ANTE, P. 783.  PP. 811-813. 

2.  NOR IS SUCH A GENERAL AGENT LIABLE TO A MEMBER OF THE CREW FOR
WAGES AND MAINTENANCE AND CURE, WHICH ARE INCIDENTS OF THE EMPLOYER
EMPLOYEE RELATIONSHIP.  PP. 813-815. 

3.  A DELIVERY CERTIFICATE RECITING THAT A SHIP WAS "DELIVERED" TO A
GENERAL AGENT "UNDER TERMS AND CONDITIONS OF" THE STANDARD GENERAL
AGENCY AGREEMENT ADDS NOTHING OF SIGNIFICANCE TO THAT AGREEMENT AND
DOES NOT SHOW THAT THE GENERAL AGENT WAS IN POSSESSION AND CONTROL OF
THE SHIP.  PP. 815-816. 

FINK V. SHEPARD STEAMSHIP CO. 

NO. 360.  CERTIORARI TO THE SUPREME COURT OF OREGON.* 

*TOGETHER WITH NO. 430, GAYNOR V. AGWILINES, INC., ON CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. 

NO. 360.  A MEMBER OF THE CREW OF A SHIP OWNED BY THE UNITED STATES
AND OPERATED BY THE WAR SHIPPING ADMINISTRATION OBTAINED A JUDGMENT IN
AN OREGON CIRCUIT COURT AGAINST A GENERAL AGENT EMPLOYED BY THE UNITED
STATES TO MANAGE CERTAIN PHASES OF THE SHIP'S BUSINESS, FOR INJURIES
SUSTAINED THROUGH THE NEGLIGENCE OF ITS MASTER AND OFFICERS.  THE
SUPREME COURT OF OREGON REVERSED, 183 ORE.  373, 192 P.2D 258, AND
DENIED A REHEARING, 183 ORE.  373, 193 P.2D 537.  THIS COURT GRANTED
CERTIORARI.  335 U.S. 870.  AFFIRMED, P. 816. 

NO. 430.  A FEDERAL DISTRICT COURT DISMISSED AN ACTION FOR WAGES AND
MAINTENANCE AND CURE BY A MEMBER OF THE CREW OF A SHIP OWNED BY THE
UNITED STATES AND OPERATED BY THE WAR SHIPPING ADMINISTRATION AGAINST A
GENERAL AGENT EMPLOYED BY THE UNITED STATES TO MANAGE CERTAIN PHASES OF
THE SHIP'S BUSINESS, 76 F.SUPP.  617.  THE COURT OF APPEALS AFFIRMED. 
169 F.2D 612.  THIS COURT GRANTED CERTIORARI.  335 U.S. 870.  AFFIRMED,
P. 816. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES RAISE ISSUES WHICH, AS THE FACTS SET OUT BELOW
INDICATE, ARE CONTROLLED BY OUR DECISION IN COSMOPOLITAN SHIPPING CO.
V. MCALLISTER, ANTE, P. 783, DECIDED THIS DAY. 

THE PETITIONER, FINK, SIGNED ON THE S. S. GEORGE DAVIDSON ON JUNE 8,
1943, AS AN ABLE SEAMAN.  THE SHIPPING ARTICLES SHOWED AS THE
"REGISTERED MANAGING OWNER OR MANAGER" THE "WAR SHIPPING ADMINISTRATION
(OWNER) SHEPARD STEAMSHIP CO. (GEN. AGENTS)."  THE CONTRACT PURSUANT TO
WHICH RESPONDENT, SHEPARD STEAMSHIP CO., HANDLED CERTAIN PHASES OF THE
SHIP'S BUSINESS WAS THE STANDARD FORM GENERAL AGENCY AGREEMENT, GAA 4-4
42.  PETITIONER WAS PROCURED BY RESPONDENT FROM A UNION HIRING HALL FOR
EMPLOYMENT BY THE MASTER OF THE VESSEL. 

IN AUGUST, 1943, WHILE THE SHIP WAS AT SEA, FINK WAS ORDERED BY THE
MASTER AND BOATSWAIN TO EMPTY A GARBAGE CAN OVERBOARD.  NO ONE WAS
ASSIGNED TO HELP HIM ALTHOUGH THE CAN WAS HEAVY, THE RAIL HIGH AND THE
SEA ROUGH.  THE ROLL OF THE SHIP CAUSED THE CAN TO BE THROWN BACKWARDS
AGAINST PETITIONER, INJURING HIM. 

PETITIONER INSTITUTED THIS ACTION FOR DAMAGES AGAINST RESPONDENT
UNDER THE JONES ACT  FN1  IN A CIRCUIT COURT OF OREGON, ALLEGING THAT
RESPONDENT WAS "IN POSSESSION OF, CONTROLLED, NAVIGATED, MANAGED AND
OPERATED" THE DAVIDSON AND WAS NEGLIGENT IN ORDERING PETITIONER TO DUMP
THE GARBAGE IN A HEAVY SEA WITHOUT ASSISTANCE.  FN2  RESPONDENT DENIED
ALL THESE ALLEGATIONS.  THE JURY WAS CHARGED THAT THE OFFICERS OF THE
SHIP WERE AGENTS OF RESPONDENT AND THAT THEIR NEGLIGENCE, IF ANY,
SHOULD BE IMPUTED TO RESPONDENT.  JUDGMENT WAS ENTERED ON A JURY
VERDICT FOR PETITIONER.  THE SUPREME COURT OF OREGON REVERSED, FINK V.
SHEPARD S.S. CO., 183 ORE.  373, 192 P.2D 258, HOLDING THAT THE REMEDY
FOR AN INJURY CAUSED BY THE NEGLIGENCE OF THE SHIP'S OFFICERS ON A
GOVERNMENT-OPERATED VESSEL SUCH AS THIS, SUBSEQUENT TO THE ENACTMENT OF
THE CLARIFICATION ACT, WAS EXCLUSIVELY BY SUIT AGAINST THE UNITED
STATES UNDER THE SUITS IN ADMIRALTY ACT.  IT THUS DISTINGUISHED HUST V.
MOORE-MCCORMACK LINES, 328 U.S. 707, ON THE GROUND THAT THERE THE
INJURY OCCURRED BEFORE THE EFFECTIVE DATE OF THE CLARIFICATION ACT. 
FN3  A PETITION FOR CERTIORARI WAS GRANTED AND THE CASE SET FOR
ARGUMENT ALONG WITH COSMOPOLITAN SHIPPING CO. V. MCALLISTER, SUPRA. 

THE QUESTION HERE IS IDENTICAL WITH THAT IN MCALLISTER, I.E., WHETHER
THE GENERAL AGENT OF A VESSEL OWNED BY THE GOVERNMENT AND OPERATED BY
THE WAR SHIPPING ADMINISTRATION IS LIABLE UNDER THE JONES ACT TO A
SEAMAN WHO IS INJURED AT SEA AFTER THE DATE OF ENACTMENT OF THE
CLARIFICATION ACT BY THE NEGLIGENCE OF THE OFFICER OF THE VESSEL.  THE
REASONS AND ARGUMENTS SUPPORTING OUR NEGATIVE ANSWER TO THAT QUESTION
IN MCALLISTER ARE EQUALLY APPLICABLE HERE.  NO PURPOSE WOULD BE SERVED
BY REPEATING THEM. 

WE DESIRE TO POINT OUT, HOWEVER, THAT THE TESTIMONY IN THIS CASE
CONFIRMS THE CONCLUSIONS WHICH WE HAVE DRAWN FROM A STUDY OF THE
STANDARD FORM GENERAL AGENCY AGREEMENT.  IT ESTABLISHES THAT RESPONDENT
WAS NEITHER THE EMPLOYER OF OFFICERS ON VESSELS SUCH AS THE DAVIDSON
NOR A PARTY TO SUCH A RELATION WITH THEM THAT IT COULD BE HELD
VICARIOUSLY LIABLE FOR THEIR TORTS.  IT SHOWS THAT SUCH OFFICERS WERE
REQUIRED TO FILL OUT AN APPLICATION FORM FOR EMPLOYMENT CAPTIONED "WAR
SHIPPING ADMINISTRATION, DIVISION OF OPERATIONS, SERVICE RECORD." 
CONSIDERATION AND APPROVAL OF THESE APPLICATIONS BY THE W.S.A. MADE THE
APPLICANTS EMPLOYEES OF THE UNITED STATES.  THEREAFTER, TRANSFER TO
OTHER W.S.A. VESSELS FOR WHICH DIFFERENT COMPANIES WERE GENERAL AGENTS
COULD BE ACCOMPLISHED BY FURNISHING TO W.S.A. A TRANSFER FORM.  NO NEW
APPLICATION FOR EMPLOYMENT WAS REQUIRED.  IT SHOWS THAT THE GENERAL
AGENT HAD NO VOICE IN DETERMINING THE DESTINATION OR ROUTE OF THE
VESSEL, IN WHAT SERVICE IT WOULD BE OPERATED, OR HOW IT WOULD BE
HANDLED IN FOREIGN PORTS.  THE SOLICITING AND LOADING OF CARGO AND THE
COLLECTION OF FREIGHT WERE FUNCTIONS OF THE BERTH AGENTS. 

PETITIONER GAYNOR SIGNED SHIPPING ARTICLES IN 1945 AS A MEMBER OF THE
CREW OF THE S.S. CHRISTOPHER GADSDEN, A VESSEL WHICH WAS OWNED BY THE
UNITED STATES AND OPERATED BY THE WAR SHIPPING ADMINISTRATION.  THE
ARTICLES REFERRED TO "AGWILINES, INC., AS GEN. AGTS.  FOR WSA," AND
ALSO STATED, "  ...  THE MASTER, OFFICERS, AND ALL OTHER MEMBERS OF THE
CREW ARE EMPLOYEES OF THE UNITED STATES SUBJECT TO THE PROVISIONS OF
(THE CLARIFICATION ACT, 57 STAT. 45, 50 U.S.C. APP. SEC. 1291), AND ARE
NOT EMPLOYEES OF AGWILINES, INC."  RESPONDENT AGWILINES WAS THE GENERAL
AGENT FOR THE SHIP UNDER STANDARD FORM CONTRACT GAA 4-4-42.  THE
GADSDEN DEPARTED FROM PHILADELPHIA ON A FOREIGN VOYAGE AND STOPPED EN
ROUTE AT CHARLESTON WHERE, WHILE ON AUTHORIZED SHORE LEAVE, PETITIONER
WAS INJURED IN A HIGHWAY ACCIDENT.  NEITHER THE SHIP, THE GENERAL
AGENT, NOR THE W.S.A. WAS DIRECTLY INVOLVED IN ANY WAY IN THE
ACCIDENT. 

PETITIONER SUED RESPONDENT FOR WAGES AND MAINTENANCE AND CURE,
ALLEGING THAT RESPONDENT "POSSESSED, OWNED, OPERATED AND CONTROLLED"
THE VESSEL.  AGWILINES DENIED THESE ALLEGATIONS, AVERRED THAT IT WAS
MERELY THE GENERAL AGENT UNDER THE STANDARD FORM CONTRACT, THAT THE
SHIP WAS "OWNED, OPERATED AND CONTROLLED BY THE UNITED STATES," AND
THAT PETITIONER HAD FAILED TO COMPLY WITH THE CLARIFICATION ACT, WHICH
REQUIRED COMPLAINTS OF THIS SORT TO BE BROUGHT PURSUANT TO THE SUITS IN
ADMIRALTY ACT. 

ON THE PLEADINGS, AN AGREED STATEMENT OF FACTS AS SUMMARIZED ABOVE,
THE SHIPPING ARTICLES, THE STANDARD FORM AGREEMENT, AND THE DELIVERY
AND REDELIVERY CERTIFICATES EVIDENCING THE ALLOCATION OF THE VESSEL TO
RESPONDENT BY THE W.S.A., THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA DISMISSED THE ACTION ON THE GROUND
THAT PETITIONER'S ONLY REMEDY WAS A SUIT AGAINST THE UNITED STATES
PURSUANT TO THE CLARIFICATION ACT.  76 F.SUPP.  617.  THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED.  GAYNOR V. AGWILINES,
INC., 169 F.2D 612.  WE GRANTED CERTIORARI AND ASSIGNED THE CASE FOR
ARGUMENT ALONG WITH COSMOPOLITAN SHIPPING CO. V. MCALLISTER, ANTE, P.
783, AND FINK V. SHEPARD STEAMSHIP CO., NO. 360, DECIDED HEREWITH. 

ALTHOUGH THIS CASE INVOLVES THE RIGHT TO WAGES AND MAINTENANCE AND
CURE, WHEREAS MCALLISTER AND FINK CONCERN DAMAGES FOR NEGLIGENT INJURY,
THE REASONING AND DECISIONS IN THOSE CASES ARE DISPOSITIVE HERE.  THIS
IS SO BECAUSE THE RIGHT TO MAINTENANCE AND CURE IS "ANNEXED TO THE
EMPLOYMENT," CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367, 371; SEE
THE OSCEOLA, 189 U.S. 158; IS "AN INCIDENT OF THE MARINE EMPLOYER
EMPLOYEE RELATIONSHIP," AGUILAR V. STANDARD OIL CO., 318 U.S. 724, 730;
1 BENEDICT, ADMIRALTY (6TH ED., 1940) 61, 253; AND BECAUSE ONLY THE
OWNER OR OWNER PRO HAC VICE OF A VESSEL IS LIABLE FOR WAGES, WHICH ALSO
STEM FROM THE CONTRACT OF EMPLOYMENT.  SHILMAN V. UNITED STATES, 164
F.2D 649, 652; THE JOHN E. BERWIND, 56 F.2D 13; EVERETT V. UNITED
STATES, 284 F. 203; COX V. LYKES BROTHERS, 237 N.Y. 376, 383, 143 N.E.
226, 228-229.  THUS LIABILITY FOR WAGES AND MAINTENANCE AND CURE
DEPENDS UPON THE SAME RELATIONSHIP THAT IS REQUIRED TO SUPPORT AN
ACTION FOR NEGLIGENT INJURY.  THAT RELATIONSHIP DOES NOT EXIST BETWEEN
PETITIONER AND RESPONDENT.  FN4 

THE DELIVERY CERTIFICATE, RELIED UPON BY PETITIONER AS SHOWING THAT
THE GADSDEN WAS IN THE POSSESSION AND CONTROL OF AGWILINES, RECITES IN
PERTINENT PART THAT THE SHIP "WAS ON THE 31ST DAY OF DECEMBER, 1942
...  DELIVERED  ...  BY WAR SHIPPING ADMINISTRATION TO AGWILINES, INC.
UNDER TERMS AND CONDITIONS OF 'SERVICE AGREEMENT, FORM GAA'  ...  "  IT
IS QUITE OBVIOUS, WE THINK, THAT THIS CERTIFICATE REFERS ONLY TO A
"DELIVERY" FOR THE PURPOSES CONTEMPLATED BY THE GENERAL AGENCY
AGREEMENT AND ADDS NOTHING OF SIGNIFICANCE TO THAT AGREEMENT, WHICH WE
HAVE ALREADY HELD, MCALLISTER, SUPRA, TO BE INSUFFICIENT TO ESTABLISH
LIABILITY ON THE PART OF THE GENERAL AGENT.  NOS. 360 AND 430
AFFIRMED. 

FN1  41 STAT. 1007, 46 U.S.C. SEC. 688. 

FN2  HE ALSO FILED CLAIM ON ACCOUNT OF HIS INJURIES WITH THE WAR
SHIPPING ADMINISTRATION AND SUED THE UNITED STATES PURSUANT TO THE
SUITS IN ADMIRALTY ACT AND THE WAR SHIPPING ADMINISTRATION
(CLARIFICATION) ACT, 57 STAT. 45, 50 U.S.C. APP. SEC. 1291.  THIS SUIT
WAS LATER DISMISSED WITHOUT PREJUDICE. 

FN3  SEE HUST V. MOORE-MCCORMACK LINES, SUPRA, AT 727. 

FN4  NOTE THAT WAGES AND MAINTENANCE AND CURE ARE TREATED ALONG WITH
CLAIMS FOR INJURIES IN SEC. 1 OF THE CLARIFICATION ACT, WHICH, IN THE
CASE OF SEAMEN EMPLOYED ON UNITED STATES OR FOREIGN VESSELS AS
EMPLOYEES OF THE UNITED STATES THROUGH THE W.S.A., DIRECTS THAT ALL OF
THESE RIGHTS SHALL BE ENFORCED PURSUANT TO THE PROVISIONS OF THE SUITS
IN ADMIRALTY ACT. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR.
JUSTICE RUTLEDGE DISSENT. 
..END :




KIMBALL LAUNDRY CO. V. U.S., 338 U.S. 1 


NO. 63.  ARGUED DECEMBER 7-8, 1948.  - DECIDED JUNE 27, 1949.  - 166
F.2D 856, REVERSED. 


UNDER AN ACT AUTHORIZING CONDEMNATION PROCEEDINGS TO ACQUIRE PROPERTY
FOR MILITARY PURPOSES, THE UNITED STATES, ON NOVEMBER 21, 1942,
PETITIONED THE DISTRICT COURT TO CONDEMN THE TEMPORARY USE OF A
LAUNDRY, FOR A TERM ENDING JUNE 30, 1943, SUBJECT TO RENEWAL ANNUALLY. 
THE GOVERNMENT TOOK POSSESSION OF THE PROPERTY ON NOVEMBER 22, 1942,
AND THE TERM WAS RENEWED ANNUALLY UNTIL JUNE 30, 1946.  MEANWHILE THE
LAUNDRY SUSPENDED SERVICE TO ITS REGULAR CUSTOMERS.  AS JUST
COMPENSATION TO THE OWNER, A JURY AWARDED AN ANNUAL RENTAL OF $70,000
AND $45,776.03 FOR DAMAGE TO THE PLANT AND MACHINERY BEYOND ORDINARY
WEAR AND TEAR.  THE DISTRICT COURT ENTERED JUDGMENT ON THE VERDICT. 
INTEREST WAS ALLOWED FROM NOVEMBER 22, 1942, ON THE AMOUNT DUE FOR THE
PERIOD ENDING JUNE 30, 1943; FROM THE BEGINNING OF EACH ANNUAL TERM ON
THE AMOUNT DUE FOR THAT TERM; AND FROM THE DATE OF THE AWARD ON THE
AMOUNT OF DAMAGE TO THE PLANT AND MACHINERY.  NO COMPENSATION WAS
AWARDED FOR DIMINUTION IN THE VALUE OF THE BUSINESS DUE TO THE
DESTRUCTION OF TRADE ROUTES, A PROFFER OF EVIDENCE THEREOF HAVING BEEN
REJECTED.  HELD: 

1.  THE AWARD OF COMPENSATION MADE FOR THE TEMPORARY TAKING OF THE
LAND, PLANT AND EQUIPMENT WAS CORRECT.  PP. 6-8. 

(A)  THE PROPER MEASURE OF COMPENSATION FOR THE TEMPORARY TAKING WAS
THE RENTAL THAT PROBABLY COULD HAVE BEEN OBTAINED, NOT THE DIFFERENCE
BETWEEN THE MARKET VALUE OF THE FEE ON THE DATE OF THE TAKING AND ITS
MARKET VALUE ON THE DATE OF ITS RETURN.  PP. 6-7. 

(B)  THE AWARD FOR DAMAGE TO THE PLANT AND MACHINERY BEYOND ORDINARY
WEAR AND TEAR WAS JUSTIFIED ON THE THEORY THAT SUCH INDEMNITY WOULD BE
PAYABLE BY AN ORDINARY LESSEE, THOUGH NOT FIXED IN ADVANCE AS PART OF
HIS RENT BECAUSE NOT THEN ASCERTAINABLE.  P. 7. 

(C)  THE AMOUNTS AWARDED BY THE JURY AS RENTAL VALUE OF THE PHYSICAL
PROPERTY AND AS COMPENSATION FOR DAMAGE TO THE PLANT AND EQUIPMENT IN
EXCESS OF ORDINARY WEAR AND TEAR WERE ADEQUATELY SUPPORTED BY THE
EVIDENCE.  PP. 7-8. 

2.  THE BASIS FOR THE AWARD OF INTEREST WAS APPROPRIATE.  THE
GOVERNMENT WAS NOT LIABLE FOR INTEREST ON THE TOTAL AMOUNT OF THE AWARD
FROM THE DATE OF THE TAKING.  P. 21. 

3.  THE GOVERNMENT HAVING FOR ALL PRACTICAL PURPOSES PREEMPTED THE
TRADE ROUTES FOR THE PERIOD OF ITS OCCUPANCY, IT MUST PAY COMPENSATION
FOR WHATEVER TRANSFERABLE VALUE THEIR TEMPORARY USE MAY HAVE HAD; AND
THE CASE MUST BE REMANDED TO THE DISTRICT COURT TO DETERMINE WHAT THAT
VALUE, IF ANY, WAS.  PP. 8-21. 

(A)  WHEN THE GOVERNMENT HAS TAKEN THE TEMPORARY USE OF BUSINESS
PROPERTY, IT WOULD BE UNFAIR TO DENY COMPENSATION FOR A DEMONSTRABLE
LOSS OF GOING-CONCERN VALUE UPON THE ASSUMPTION THAT AN EVEN MORE
REMOTE POSSIBILITY - THE TEMPORARY TRANSFER OF GOING-CONCERN VALUE -
MIGHT HAVE BEEN REALIZED.  P. 15. 

(B)  IN DETERMINING THE COMPENSABLE VALUE OF THE TEMPORARY USE OF THE
TRADE ROUTES, THE DISTRICT COURT SHOULD CONSIDER ANY EVIDENCE WHICH
WOULD HAVE BEEN LIKELY TO CONVINCE A POTENTIAL PURCHASER AS TO THE
PRESENCE AND AMOUNT OF THE LAUNDRY'S GOING-CONCERN VALUE, INCLUDING (BY
WAY OF EXAMPLE AND SUBJECT TO CERTAIN CAUTIONS SET FORTH IN THE
OPINION) THE RECORD OF PAST EARNINGS AND EXPENDITURES FOR SOLICITING
BUSINESS.  PP. 16-21. 

(C)  IF THE DISTRICT COURT SHOULD FIND PETITIONER'S EVIDENCE ADEQUATE
TO SUBMIT TO THE JURY FOR A FINDING AS TO PRESENCE AND AMOUNT OF THE
VALUE OF THE TRADE ROUTES, IT MUST INSTRUCT THE JURY AS TO COMPUTATION
OF THE COMPENSATION DUE, WHICH MUST NOT EXCEED THE VALUE OF THEIR
TEMPORARY CONTROL.  PP. 20-21. 

KIMBALL LAUNDRY CO. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

A JUDGMENT OF THE DISTRICT COURT, ENTERED ON THE VERDICT OF A JURY IN
A CONDEMNATION PROCEEDING, WAS AFFIRMED BY THE COURT OF APPEALS.  166
F.2D 856.  THIS COURT GRANTED CERTIORARI.  335 U.S. 807.  REVERSED AND
REMANDED, P. 21. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON NOVEMBER 21, 1942, THE UNITED STATES FILED A PETITION  FN1  IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA, TO CONDEMN
THE PLANT OF THE KIMBALL LAUNDRY COMPANY IN OMAHA, NEBRASKA, FOR USE BY
THE ARMY FOR A TERM INITIALLY EXPIRING JUNE 30, 1943, AND TO BE
EXTENDED FROM YEAR TO YEAR AT THE ELECTION OF THE SECRETARY OF WAR. 
THE DISTRICT COURT GRANTED THE UNITED STATES IMMEDIATE POSSESSION OF
THE FACILITIES OF THE COMPANY, EXCEPT DELIVERY EQUIPMENT, FOR THE
REQUESTED PERIOD.  THE TERM WAS SUBSEQUENTLY EXTENDED SEVERAL TIMES. 
THE LAST YEAR'S EXTENSION WAS TO END ON JUNE 30, 1946, BUT THE PROPERTY
WAS FINALLY RETURNED ON MARCH 23, 1946. 

THE KIMBALL LAUNDRY COMPANY IS A FAMILY CORPORATION THE PRINCIPAL
STOCKHOLDERS OF WHICH ARE THREE BROTHERS WHO ARE ALSO ITS OFFICERS. 
THE LAUNDRY'S BUSINESS HAS BEEN ESTABLISHED FOR MANY YEARS; ITS PLANT
IS LARGE AND WELL EQUIPPED WITH MODERN MACHINERY.  AFTER THE ARMY TOOK
OVER THE PLANT, THE QUARTERMASTER CORPS RAN IT AS A LAUNDRY FOR
PERSONNEL IN THE SEVENTH SERVICE COMMAND.  MOST OF THE LAUNDRY'S 180
EMPLOYEES WERE RETAINED, AND ONE OF THE BROTHERS STAYED ON AS OPERATING
MANAGER.  HAVING NO OTHER MEANS OF SERVING ITS CUSTOMERS, THE LAUNDRY
SUSPENDED BUSINESS FOR THE DURATION OF THE ARMY'S OCCUPANCY. 

ON NOVEMBER 19, 1943, A BOARD OF APPRAISERS APPOINTED BY THE DISTRICT
COURT, IN ACCORDANCE WITH NEBRASKA LAW, REPORTED THAT "THE JUST
COMPENSATION FOR THE VALUE OF THE USE OF THE PREMISES TAKEN BY THE
UNITED STATES OF AMERICA IS THE SUM OF $74,940.00 PER ANNUM  ...  "
THE APPRAISERS MADE NO AWARD OF DAMAGES FOR THE LOSS OF PATRONS, WHICH
THEY RECOGNIZED TO BE PROBABLE, BECAUSE AT THAT TIME THE AMOUNT OF THE
LOSS COULD NOT BE APPRAISED.  THE GOVERNMENT AND THE LAUNDRY BOTH
APPEALED THE APPRAISERS' AWARD, AND THE QUESTION OF JUST COMPENSATION
WAS TRIED TO A JURY IN MARCH OF 1946.  THE JURY AWARDED AN ANNUAL
RENTAL OF $70,000 - A TOTAL OF $252,000 FOR THE WHOLE TERM - AND
$45,776.03 FOR DAMAGE TO THE PLANT AND MACHINERY BEYOND ORDINARY WEAR
AND TEAR.  THE RENTAL AWARD WAS INTENDED TO COVER TAXES, INSURANCE,
NORMAL DEPRECIATION, AND A RETURN ON THE VALUE OF THE LAUNDRY'S
PHYSICAL ASSETS.  INTEREST AT THE RATE OF 6 PER CENT WAS ADDED FROM
NOVEMBER 22, 1942, THE DAY ON WHICH THE ARMY TOOK POSSESSION, ON THE
AMOUNT DUE FOR THE PERIOD BETWEEN THAT DATE AND JUNE 30, 1943, AND ON
THE RENTAL FOR EACH YEAR THEREAFTER FROM THE BEGINNING OF THE YEAR
UNTIL PAID.  INTEREST ON THE SUM AWARDED FOR DAMAGE TO THE PLANT AND
MACHINERY WAS ADJUDGED TO RUN FROM THE DATE OF THE VERDICT, SINCE THE
PLANT HAD NOT THEN BEEN RETURNED. 

THE LAUNDRY APPEALED TO THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT,
ASSIGNING NUMEROUS ERRORS IN THE ADMISSION AND EXCLUSION OF TESTIMONY
AND IN THE INSTRUCTIONS TO THE JURY.  THE COURT OF APPEALS AFFIRMED THE
DISTRICT COURT, 166 F.2D 856, AND WE GRANTED THE LAUNDRY'S PETITION FOR
CERTIORARI, 335 U.S. 807, BECAUSE IT RAISED NOVEL AND SERIOUS QUESTIONS
IN DETERMINING WHAT IS "JUST COMPENSATION" UNDER THE FIFTH AMENDMENT. 

THESE QUESTIONS ARE NOT RESOLVED BY THE FAMILIAR FORMULAS AVAILABLE
FOR THE CONVENTIONAL SITUATIONS WHICH GAVE OCCASION FOR THEIR
ADOPTION.  AS MR. JUSTICE BRANDEIS OBSERVED, "VALUE IS A WORD OF MANY
MEANINGS."  SOUTHWESTERN BELL TELEPHONE CO. V. PUBLIC SERVICE COMM'N,
262 U.S. 276, 310.  FOR PURPOSES OF THE COMPENSATION DUE UNDER THE
FIFTH AMENDMENT, OF COURSE, ONLY THAT "VALUE" NEED BE CONSIDERED WHICH
IS ATTACHED TO "PROPERTY,"  FN2  BUT THAT ONLY APPROACHES BY ONE STEP
THE PROBLEM OF DEFINITION.  THE VALUE OF PROPERTY SPRINGS FROM
SUBJECTIVE NEEDS AND ATTITUDES; ITS VALUE TO THE OWNER MAY THEREFORE
DIFFER WIDELY FROM ITS VALUE TO THE TAKER.  MOST THINGS, HOWEVER, HAVE
A GENERAL DEMAND WHICH GIVES THEM A VALUE TRANSFERABLE FROM ONE OWNER
TO ANOTHER.  AS OPPOSED TO SUCH PERSONAL AND VARIANT STANDARDS AS VALUE
TO THE PARTICULAR OWNER WHOSE PROPERTY HAS BEEN TAKEN, THIS
TRANSFERABLE VALUE HAS AN EXTERNAL VALIDITY WHICH MAKES IT A FAIR
MEASURE OF PUBLIC OBLIGATION TO COMPENSATE THE LOSS INCURRED BY AN
OWNER AS A RESULT OF THE TAKING OF HIS PROPERTY FOR PUBLIC USE.  IN
VIEW, HOWEVER, OF THE LIABILITY OF ALL PROPERTY TO CONDEMNATION FOR THE
COMMON GOOD, LOSS TO THE OWNER OF NONTRANSFERABLE VALUES DERIVING FROM
HIS UNIQUE NEED FOR PROPERTY OR IDIOSYNCRATIC ATTACHMENT TO IT, LIKE
LOSS DUE TO AN EXERCISE OF THE POLICE POWER, IS PROPERLY TREATED AS
PART OF THE BURDEN OF COMMON CITIZENSHIP.  SEE OMNIA COMMERCIAL CO. V.
UNITED STATES, 261 U.S. 502, 508-09.  BECAUSE GAIN TO THE TAKER, ON THE
OTHER HAND, MAY BE WHOLLY UNRELATED TO THE DEPRIVATION IMPOSED UPON THE
OWNER, IT MUST ALSO BE REJECTED AS A MEASURE OF PUBLIC OBLIGATION TO
REQUITE FOR THAT DEPRIVATION.  MCGOVERN V. NEW YORK, 229 U.S. 363;
UNITED STATES EX REL. T.V.A. V. POWELSON, 319 U.S. 266. 

THE VALUE COMPENSABLE UNDER THE FIFTH AMENDMENT, THEREFORE, IS ONLY
THAT VALUE WHICH IS CAPABLE OF TRANSFER FROM OWNER TO OWNER AND THUS OF
EXCHANGE FOR SOME EQUIVALENT.  ITS MEASURE IS THE AMOUNT OF THAT
EQUIVALENT.  BUT SINCE A TRANSFER BROUGHT ABOUT BY EMINENT DOMAIN IS
NOT A VOLUNTARY EXCHANGE, THIS AMOUNT CAN BE DETERMINED ONLY BY A
GUESS, AS WELL INFORMED AS POSSIBLE, AS TO WHAT THE EQUIVALENT WOULD
PROBABLY HAVE BEEN HAD A VOLUNTARY EXCHANGE TAKEN PLACE.  IF EXCHANGES
OF SIMILAR PROPERTY HAVE BEEN FREQUENT, THE INFERENCE IS STRONG THAT
THE EQUIVALENT ARRIVED AT BY THE HAGGLING OF THE MARKET WOULD PROBABLY
HAVE BEEN OFFERED AND ACCEPTED, AND IT IS THUS THAT THE "MARKET PRICE"
BECOMES SO IMPORTANT A STANDARD OF REFERENCE.  FN3  BUT WHEN THE
PROPERTY IS OF A KIND SELDOM EXCHANGED, IT HAS NO "MARKET PRICE," AND
THEN RECOURSE MUST BE HAD TO OTHER MEANS OF ASCERTAINING VALUE,
INCLUDING EVEN VALUE TO THE OWNER AS INDICATIVE OF VALUE TO OTHER
POTENTIAL OWNERS ENJOYING THE SAME RIGHTS.  CF. OLD SOUTH ASSOCIATION
V. BOSTON, 212 MASS. 299, 99 N.E. 235.  THESE CONSIDERATIONS HAVE
SPECIAL RELEVANCE WHERE "PROPERTY" IS "TAKEN" NOT IN FEE BUT FOR AN
INDETERMINATE PERIOD. 

APPROACHING THUS THE QUESTION OF COMPENSATION FOR THE TEMPORARY
TAKING OF PETITIONER'S LAND, PLANT, AND EQUIPMENT, WE BELIEVE THAT THE
AWARD MADE BY THE DISTRICT COURT WAS CORRECT.  PETITIONER INSISTS,
HOWEVER, THAT THE MEASURE OF COMPENSATION FOR A TEMPORARY TAKING WHICH
SHOULD HAVE BEEN APPLIED IS THE DIFFERENCE BETWEEN THE MARKET VALUE OF
THE FEE ON THE DATE OF THE TAKING AND ITS MARKET VALUE ON THE DATE OF
ITS RETURN.  BUT IT WAS KNOWN FROM THE OUTSET THAT THIS TAKING WAS TO
BE TEMPORARY, AND DETERMINATION OF THE VALUE OF TEMPORARY OCCUPANCY CAN
BE APPROACHED ONLY ON THE SUPPOSITION THAT FREE BARGAINING BETWEEN
PETITIONER AND A HYPOTHETICAL LESSEE OF THAT TEMPORARY INTEREST WOULD
HAVE TAKEN PLACE IN THE USUAL FRAMEWORK OF SUCH NEGOTIATIONS.  WE AGREE
WITH BOTH LOWER COURTS, THEREFORE, THAT THE PROPER MEASURE OF
COMPENSATION IS THE RENTAL THAT PROBABLY COULD HAVE BEEN OBTAINED, AND
SO THIS COURT HAS HELD IN THE TWO RECENT CASES DEALING WITH TEMPORARY
TAKINGS.  UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373; UNITED
STATES V. PETTY MOTOR CO., 327 U.S. 372.  INDEED, IF THE DIFFERENCE
BETWEEN THE MARKET VALUE OF THE FEE ON THE DATE OF TAKING AND THAT ON
THE DATE OF RETURN WERE TAKEN TO BE THE MEASURE, THERE MIGHT FREQUENTLY
BE SITUATIONS IN WHICH THE OWNER WOULD RECEIVE NO COMPENSATION WHATEVER
BECAUSE THE MARKET VALUE OF THE PROPERTY HAD NOT DECREASED DURING THE
PERIOD OF THE TAKER'S OCCUPANCY. 

THE COURTS BELOW ALSO AWARDED COMPENSATION TO PETITIONER FOR DAMAGE
TO ITS MACHINERY AND EQUIPMENT IN EXCESS OF ORDINARY WEAR AND TEAR, THE
AWARD OF RENTAL HAVING BEEN ADJUSTED TO INCLUDE AN ALLOWANCE FOR NORMAL
DEPRECIATION.  THE GOVERNMENT DOES NOT OBJECT TO THIS AWARD, BUT WE
THINK IT APPROPRIATE TO POINT OUT THAT WE FIND IT JUSTIFIED ON THE
THEORY THAT SUCH INDEMNITY WOULD BE PAYABLE BY AN ORDINARY LESSEE,
THOUGH NOT FIXED IN ADVANCE AS PART OF HIS RENT BECAUSE NOT THEN
CAPABLE OF DETERMINATION. 

THE PETITIONER MAKES NUMEROUS OBJECTIONS TO THE SUFFICIENCY OF THE
EVIDENCE IN SUPPORT OF THE AMOUNTS FIXED BY THE JURY AS THE RENTAL
VALUE OF THE PHYSICAL PROPERTY AND AS COMPENSATION FOR DAMAGE TO THE
PLANT AND EQUIPMENT IN EXCESS OF ORDINARY WEAR AND TEAR.  SUFFICE IT TO
SAY THAT WE FIND THESE AWARDS ADEQUATELY SUPPORTED. 

AT THE CORE OF PETITIONER'S CLAIM THAT IT HAS BEEN DENIED JUST
COMPENSATION IS THE CONTENTION THAT THERE SHOULD HAVE BEEN INCLUDED IN
THE AWARD TO IT SOME ALLOWANCE FOR DIMINUTION IN THE VALUE OF ITS
BUSINESS DUE TO THE DESTRUCTION OF ITS "TRADE ROUTES."  THE TERM "TRADE
ROUTES" SERVES AS A GENERAL DESIGNATION BOTH FOR THE LISTS OF CUSTOMERS
BUILT UP BY SOLICITATION OVER THE YEARS AND FOR THE CONTINUED HOLD OF
THE LAUNDRY UPON THEIR PATRONAGE. 

AT THE TRIAL PETITIONER OFFERED TO PROVE THE VALUE OF THE TRADE
ROUTES BY TESTIMONY OF AN EXPERT WITNESS BASED ON THE GROSS RECEIPTS
ATTRIBUTABLE TO EACH CLASS OF CUSTOMERS, AND THE TESTIMONY OF ONE OF
ITS OFFICERS WAS OFFERED TO SHOW THAT THIS VALUE HAD WHOLLY DISAPPEARED
DURING THE THREE AND ONE-HALF YEARS OF THE ARMY'S USE OF THE PLANT. 
FN4  IT FURTHER OFFERED TO SHOW THE COST OF BUILDING UP THE CUSTOMER
LISTS, WHICH HAD NOT BEEN CAPITALIZED BUT CHARGED TO EXPENSE, AND
LOSSES WHICH WOULD BE INCURRED AFTER THE RESUMPTION OF OPERATIONS WHILE
THEY WERE BEING REBUILT.  THE PETITIONER ALSO ATTEMPTED TO INTRODUCE
EVIDENCE OF ITS GROSS AND NET INCOME FOR THE EIGHTEEN YEARS PRECEDING
THE TAKING, THE AMOUNT OF DIVIDENDS PAID, AND THE RATIO OF OFFICERS'
SALARIES TO CAPITAL STOCK AND SURPLUS, ON THE THEORY THAT THIS EVIDENCE
WOULD SHED ADDITIONAL LIGHT ON THE VALUE OF THE LAUNDRY AS A GOING
BUSINESS.  THE TRIAL COURT REJECTED THESE OFFERS AS NOT BEARING UPON
THE "FAIR MARKET VALUE OR FAIR USE VALUE OF THE PROPERTY TAKEN" AND
INSTRUCTED THE JURY THAT IT SHOULD NOT CONSIDER DIMINUTION IN THE VALUE
OF THE BUSINESS.  THE COURT OF APPEALS AFFIRMED BECAUSE, IN ITS
OPINION, WHATEVER MAY HAVE BEEN THE LOSS IN VALUE OF THE BUSINESS OR
THE TRADE ROUTES BROUGHT ABOUT BY THE TAKING, "THE GOVERNMENT DID NOT
TAKE OR INTEND TO TAKE, AND OBVIOUSLY COULD NOT USE, THE COMPANY'S
BUSINESS, TRADE ROUTES OR CUSTOMERS."  166 F.2D AT 860. 

THE MARKET VALUE OF LAND AS A BUSINESS SITE TENDS TO BE AS HIGH AS
THE REASONABLY PROBABLE EARNINGS OF A BUSINESS THERE SITUATED WOULD
JUSTIFY, AND THE VALUE OF SPECIALLY ADAPTED PLANT AND MACHINERY EXCEEDS
ITS VALUE AS SCRAP ONLY ON THE ASSUMPTION THAT IT IS INCOME-PRODUCING. 
AND INCOME, IN THE CASE OF A SERVICE INDUSTRY, PRESUPPOSES PATRONAGE. 
SINCE PETITIONER HAS BEEN FULLY COMPENSATED FOR THE VALUE OF ITS
PHYSICAL PROPERTY, ANY SEPARATE VALUE THAT ITS TRADE ROUTES MAY HAVE
MUST THEREFORE RESULT FROM THE CONTRIBUTION TO THE EARNING CAPACITY OF
THE BUSINESS OF GREATER SKILL IN MANAGEMENT AND MORE EFFECTIVE
SOLICITATION OF PATRONAGE THAN ARE COMMONLY GIVEN TO SUCH A COMBINATION
OF LAND, PLANT, AND EQUIPMENT.  THE PRODUCT OF SUCH CONTRIBUTIONS IS AN
INTANGIBLE WHICH MAY BE COMPENDIOUSLY DESIGNATED AS "GOING-CONCERN
VALUE," BUT THIS IS A PORTMANTEAU PHRASE THAT NEEDS UNPACKING. 

THOUGH COMPOUNDED OF MANY FACTORS IN ADDITION TO RELATIONS WITH
CUSTOMERS, THAT ELEMENT OF GOING-CONCERN VALUE WHICH IS CONTRIBUTED BY
SUPERIOR MANAGEMENT MAY BE TRANSFERABLE TO THE EXTENT THAT IT HAS A
MOMENTUM LIKELY TO BE FELT EVEN AFTER A NEW OWNER AND NEW MANAGEMENT
HAVE SUCCEEDED TO THE BUSINESS PROPERTY.  BUT BECAUSE THIS MOMENTUM CAN
BE MAINTAINED ONLY BY THE APPLICATION OF CONTINUED ENERGY AND SKILL, IT
WOULD GRADUALLY SPEND ITSELF IF THE EFFORT AND SKILL OF THE NEW
MANAGEMENT WERE NOT IN ITS TURN EXPENDED.  SEE PATON, ADVANCED
ACCOUNTING 427, 435(1941).  ONLY THAT EXERCISE OF MANAGERIAL
EFFICIENCY, HOWEVER, WHICH HAS CONTRIBUTED TO THE FUTURE PROFITABILITY
OF THE BUSINESS WILL HAVE A TRANSFERABLE MOMENTUM THAT MAY GIVE IT
VALUE TO A POTENTIAL PURCHASER; THAT WHICH HAS HAD ONLY THE EFFECT OF
INCREASING CURRENT INCOME OR REDUCING EXPENSES OF OPERATION HAS SPENT
ITSELF FROM YEAR TO YEAR.  THE VALUE CONTRIBUTED BY THE EXPENDITURE OF
MONEY IN SOLICITING PATRONAGE, ALTHOUGH LIKEWISE OF LIMITED DURATION,
DIFFERS FROM MANAGERIAL EFFICIENCY IN THAT IT DERIVES NOT MERELY FROM
THE CONTRIBUTION OF PERSONAL QUALITIES BUT FROM ORIGINAL INVESTMENT OR
THE PLOWING BACK OF INCOME.  AS SUCH IT MAY SOMETIMES BE MORE READILY
RECOGNIZED AS AN ASSET OF THE BUSINESS.  FN5  IT IS CLEAR, AT ANY RATE,
THAT THE VALUE OF BOTH THESE ELEMENTS, IN COMBINATION, MUST BE REGARDED
AS IDENTICAL WITH THE VALUE ALLEGED TO INHERE IN THE TRADE ROUTES. 

ASSUMING, THEN, THAT PETITIONER'S BUSINESS MAY HAVE GOING-CONCERN
VALUE AS DEFINED ABOVE, THE QUESTION ARISES WHETHER THE INTANGIBLE
CHARACTER OF SUCH VALUE ALONE PRECLUDES COMPENSATION FOR IT.  THE
ANSWER IS NOT FAR TO SEEK.  THE VALUE OF ALL PROPERTY, AS WE HAVE
ALREADY OBSERVED, IS DEPENDENT UPON AND INSEPARABLE FROM INDIVIDUAL
NEEDS AND ATTITUDES, AND THESE, OBVIOUSLY, ARE INTANGIBLE.  AS FIXED BY
THE MARKET, VALUE IS NO MORE THAN A SUMMARY EXPRESSION OF FORECASTS
THAT THE NEEDS AND ATTITUDES WHICH MADE UP DEMAND IN THE PAST WILL HAVE
THEIR COUNTERPARTS IN THE FUTURE.  SEE ITHACA TRUST CO. V. UNITED
STATES, 279 U.S. 151, 155; CF. 1 BONBRIGHT, THE VALUATION OF PROPERTY
222(1937).  THE ONLY DISTINCTION TO BE MADE, THEREFORE, BETWEEN THE
ATTITUDES WHICH GENERATE GOING-CONCERN VALUE AND THOSE OF WHICH
TANGIBLE PROPERTY IS COMPOUNDED IS AS TO THE TENACITY OF THE PAST'S
HOLD UPON THE FUTURE:  IN THE CASE OF THE LATTER A FORECAST OF FUTURE
DEMAND CAN USUALLY BE MADE WITH GREATER CERTAINTY, FOR IT IS MORE
PROBABLE ON THE WHOLE THAT PEOPLE WILL CONTINUE TO WANT PARTICULAR
GOODS OR SERVICES THAN THAT THEY WILL CONTINUE TO LOOK TO A PARTICULAR
SUPPLIER OF THEM.  IT IS MORE LIKELY, IN OTHER WORDS, THAT PEOPLE WILL
PERSIST IN WANTING TO HAVE THEIR LAUNDRY DONE THAN THAT THEY WILL KEEP
ON SENDING IT TO A PARTICULAR LAUNDRY.  BUT AS THE PROBABILITY OF
CONTINUED PATRONAGE GAINS STRENGTH, THIS DISTINCTION BECOMES
OBLITERATED, AND THE INTANGIBLE ACQUIRES A VALUE TO A POTENTIAL
PURCHASER NO DIFFERENT FROM THE VALUE OF THE BUSINESS' PHYSICAL
PROPERTY.  SINCE THE FIFTH AMENDMENT REQUIRES COMPENSATION FOR THE
LATTER, THE FORMER, IF SHOWN TO BE PRESENT AND TO HAVE BEEN "TAKEN,"
SHOULD ALSO BE COMPENSABLE.  AS MR. JUSTICE BRANDEIS OBSERVED FOR THE
COURT IN GALVESTON ELEC.  CO. V. GALVESTON, 258 U.S. 388, 396, "IN
DETERMINING THE VALUE OF A BUSINESS AS BETWEEN BUYER AND SELLER, THE
GOODWILL AND EARNING POWER DUE TO EFFECTIVE ORGANIZATION ARE OFTEN MORE
IMPORTANT ELEMENTS THAN TANGIBLE PROPERTY.  WHERE THE PUBLIC ACQUIRES
THE BUSINESS, COMPENSATION MUST BE MADE FOR THESE, AT LEAST UNDER SOME
CIRCUMSTANCES."  SEE ALSO DES MOINES GAS CO. V. DES MOINES, 238 U.S.
153, 165; MCCARDLE V. INDIANAPOLIS WATER CO., 272 U.S. 400, 414. 

WHAT, THEN, ARE THE CIRCUMSTANCES UNDER WHICH THE FIFTH AMENDMENT
REQUIRES COMPENSATION FOR SUCH AN INTANGIBLE?  NOT, INDEED, THOSE OF
THE USUAL TAKING OF FEE TITLE TO BUSINESS PROPERTY, BUT THE DENIAL OF
COMPENSATION IN SUCH CIRCUMSTANCES RESTS ON A VERY CONCRETE
JUSTIFICATION:  THE GOING-CONCERN VALUE HAS NOT BEEN TAKEN.  SUCH ARE
ALL THE CASES, MOST OF THEM DECIDED BY STATE COURTS UNDER CONSTITUTIONS
WITH PROVISIONS COMPARABLE TO THE FIFTH AMENDMENT, IN WHICH ONLY THE
PHYSICAL PROPERTY HAS BEEN CONDEMNED, LEAVING THE OWNER FREE TO MOVE
HIS BUSINESS TO A NEW LOCATION.  E.G., BOTHWELL V. UNITED STATES, 254
U.S. 231; BANNER MILLING CO. V. STATE OF NEW YORK, 240 N.Y. 533, 148
N.E. 668.  IN SUCH A SITUATION THERE IS NO MORE REASON FOR A TAKER TO
PAY FOR THE BUSINESS' GOING-CONCERN VALUE THAN THERE WOULD BE FOR A
PURCHASER TO PAY FOR IT WHO HAD NOT SECURED FROM HIS VENDOR A COVENANT
TO REFRAIN FROM ENTERING INTO COMPETITION WITH HIM.  IT IS TRUE THAT
THERE MAY BE LOSS TO THE OWNER BECAUSE OF THE DIFFICULTY OF FINDING
OTHER PREMISES SUITABLY SITUATED FOR THE TRANSFER OF HIS GOOD WILL, AND
THAT SUCH LOSS, LIKE THE COST OF MOVING, IS DENIED COMPENSATION AS
CONSEQUENTIAL.  SEE JOSLIN MFG. CO. V. PROVIDENCE, 262 U.S. 668, 676. 
BUT SUCH VALUE AS THE GOOD WILL RETAINS, THE OWNER KEEPS, AND THE
REMAINDER DISSIPATED BY REMOVAL WOULD NOT CONTRIBUTE TO THE VALUE PAID
FOR BY A TRANSFEREE OF THE VACATED PREMISES, EXCEPT PERHAPS TO THE
EXTENT THAT THE PROSPECT OF ITS LOSS WOULD INDUCE THE OWNER TO HOLD OUT
FOR A HIGHER PRICE FOR HIS LAND AND BUILDING.  CF. UNITED STATES V.
GENERAL MOTORS CORP., 323 U.S. 373, 383.  WHEN A CONDEMNOR HAS TAKEN
FEE TITLE TO BUSINESS PROPERTY, THERE IS REASON FOR SAYING THAT THE
COMPENSATION DUE SHOULD NOT VARY WITH THE OWNER'S GOOD FORTUNE OR LACK
OF IT IN FINDING PREMISES SUITABLE FOR THE TRANSFERENCE OF GOING
CONCERN VALUE.  IN THE USUAL CASE MOST OF IT CAN BE TRANSFERRED; IN THE
REMAINDER THE AMOUNT OF LOSS IS SO SPECULATIVE THAT PROOF OF IT MAY
JUSTIFIABLY BE EXCLUDED.  SEE SAWYER V. COMMONWEALTH, 182 MASS. 245, 65
N.E. 52, PER HOLMES, C.J. BY AN EXTENSION OF THAT REASONING THE SAME
RESULT HAS BEEN REACHED EVEN UPON THE ASSUMPTION THAT NO OTHER PREMISES
WHATEVER WERE AVAILABLE.  MITCHELL V. UNITED STATES, 267 U.S. 341. 

THE SITUATION IS OTHERWISE, HOWEVER, WHEN THE GOVERNMENT HAS
CONDEMNED BUSINESS PROPERTY WITH THE INTENTION OF CARRYING ON THE
BUSINESS, AS WHERE PUBLIC-UTILITY PROPERTY HAS BEEN TAKEN OVER FOR
CONTINUED OPERATION BY A GOVERNMENTAL AUTHORITY.  IF, IN SUCH A CASE,
THE TAKER ACQUIRES GOING-CONCERN VALUE, IT MUST PAY FOR IT.  OMAHA V.
OMAHA WATER CO., 218 U.S. 180; SEE DENVER V. DENVER UNION WATER CO.,
246 U.S. 178, 191; ORGEL, VALUATION UNDER THE LAW OF EMINENT DOMAIN
SEC. 214(1936), AND CASES THERE CITED.  SINCE A UTILITY CANNOT
ORDINARILY BE OPERATED PROFITABLY EXCEPT AS A MONOPOLY, INVESTMENT BY
THE FORMER OWNER OF THE UTILITY IN DUPLICATING THE CONDEMNED FACILITIES
COULD HAVE NO PROSPECT OF A PROFITABLE RETURN.  THE TAKER HAS THUS IN
EFFECT ASSURED ITSELF OF FREEDOM FROM THE FORMER OWNER'S COMPETITION. 
THE OWNER RETAINS NOTHING OF THE GOING-CONCERN VALUE THAT IT FORMERLY
POSSESSED; SO FAR AS CONTROL OF THAT VALUE IS CONCERNED, THE TAKER
FULLY OCCUPIES THE OWNER'S SHOES. 

BUT THE PUBLIC-UTILITY CASES PLAINLY CANNOT BE EXPLAINED BY THE FACT
THAT THE TAKER RECEIVED THE BENEFIT OF THE UTILITY'S GOING-CONCERN
VALUE.  IF BENEFIT TO THE TAKER WERE MADE THE MEASURE OF COMPENSATION,
IT WOULD BE DIFFICULT TO JUSTIFY HIGHER COMPENSATION FOR FARM LAND
TAKEN AS A FIRING RANGE THAN FOR SWAMP OR SANDY WASTE EQUALLY SUITED TO
THE PURPOSE.  BUT SEE MITCHELL V. UNITED STATES, 267 U.S. 341, 344-45. 
IT WOULD BE EQUALLY DIFFICULT TO DENY COMPENSATION FOR VALUE TO THE
TAKER IN EXCESS OF VALUE TO THE OWNER.  BUT COMPARE, E.G., MCGOVERN V.
NEW YORK, 229 U.S. 363; UNITED STATES EX REL. T.V.A. V. POWELSON, 319
U.S. 266.  THE RATIONALE OF THE PUBLICUTILITY CASES, AS OPPOSED TO
THOSE IN WHICH CIRCUMSTANCES HAVE BROUGHT ABOUT A DIMINUTION OF GOING
CONCERN VALUE ALTHOUGH THE OWNER REMAINED FREE TO TRANSFER IT, MUST
THEREFORE BE THAT AN EXERCISE OF THE POWER OF EMINENT DOMAIN WHICH HAS
THE INEVITABLE EFFECT OF DEPRIVING THE OWNER OF THE GOING-CONCERN VALUE
OF HIS BUSINESS IS A COMPENSABLE "TAKING" OF PROPERTY.  SEE UNITED
STATES V. GENERAL MOTORS CORP., 323 U.S. 373, 378; CF. UNITED STATES V.
CAUSBY, 328 U.S. 256.  IF SUCH A DEPRIVATION HAS OCCURRED, THE GOING
CONCERN VALUE OF THE BUSINESS IS AT THE GOVERNMENT'S DISPOSAL WHETHER
OR NOT IT CHOOSES TO AVAIL ITSELF OF IT.  SINCE WHAT THE OWNER HAD HAS
TRANSFERABLE VALUE, THE SITUATION IS APT FOR THE OFT-QUOTED REMARK OF
MR. JUSTICE HOLMES, "THE QUESTION IS WHAT HAS THE OWNER LOST, NOT WHAT
HAS THE TAKER GAINED."  BOSTON CHAMBER OF COMMERCE V. BOSTON, 217 U.S.
189, 195. 

WE THINK THAT THE SITUATION BEFORE US COMES WITHIN THIS PRINCIPLE. 
THE GOVERNMENT'S TEMPORARY TAKING OF THE LAUNDRY'S PREMISES COULD NO
MORE COMPLETELY HAVE APPROPRIATED THE LAUNDRY'S OPPORTUNITY TO PROFIT
FROM ITS TRADE ROUTES THAN IF IT HAD SECURED A PROMISE FROM THE LAUNDRY
THAT IT WOULD NOT FOR THE DURATION OF THE GOVERNMENT'S OCCUPANCY OF THE
PREMISES UNDERTAKE TO OPERATE A LAUNDRY BUSINESS ANYWHERE ELSE IN THE
CITY OF OMAHA.  THE TAKING WAS FROM YEAR TO YEAR; IN THE MEANTIME THE
LAUNDRY'S INVESTMENT REMAINED BOUND UP IN THE REVERSION OF THE
PROPERTY.  EVEN IF FUNDS FOR THE INAUGURATION OF A NEW BUSINESS WERE
OBTAINABLE OTHERWISE THAN BY THE SALE OR LIQUIDATION OF THE OLD ONE,
THE LAUNDRY WOULD HAVE BEEN FACED WITH THE IMMINENT PROSPECT OF FINDING
ITSELF WITH TWO LAUNDRY PLANTS ON ITS HANDS, BOTH OF WHICH COULD HARDLY
HAVE BEEN OPERATED AT A PROFIT.  THERE WAS NOTHING IT COULD DO,
THEREFORE, BUT WAIT.  BESIDES, THOUGH TRADE ROUTES MAY BE CAPABLE OF
TRANSFER INDEPENDENTLY OF THE PHYSICAL PROPERTY WITH WHICH THEY HAVE
BEEN ASSOCIATED, IT IS WHOLLY BEYOND THE REALM OF CONJECTURE THAT THEY
COULD HAVE BEEN SOLD FROM YEAR TO YEAR OR THAT THE LAUNDRY WOULD HAVE
BOUND ITSELF TO GIVE THEM UP FOR A LONGER PERIOD WHEN AT ANY TIME ITS
PLANT MIGHT BE RETURNED.  IT IS EQUALLY FARFETCHED, MOREOVER, TO
SUPPOSE THAT THEY COULD HAVE BEEN TRANSFERRED FOR A LIMITED PERIOD AND
THEN RECAPTURED. 

IT IS ARGUABLE, TO BE SURE, THAT SINCE AN EQUALLY SUITABLE PLANT
MIGHT CONCEIVABLY HAVE BEEN AVAILABLE TO THE PETITIONER AT REASONABLE
TERMS FOR THE SAME PERIOD AS THE GOVERNMENT'S OCCUPANCY OF ITS OWN
PLANT, AND SINCE THAT WOULD HAVE ENABLED IT TO STAY IN BUSINESS WITHOUT
LOSS OF GOING-CONCERN VALUE, IT IS IRRELEVANT THAT NO SUCH PREMISES
HAPPENED TO BE AVAILABLE, AS IT WOULD HAVE BEEN IRRELEVANT, UNDER A
STRICT APPLICATION OF MITCHELL V. UNITED STATES, 267 U.S. 341, HAD THE
GOVERNMENT TAKEN THE FEE.  WHEN FEE TITLE TO BUSINESS PROPERTY HAS BEEN
TAKEN, HOWEVER, IT IS FAIR ON THE WHOLE THAT THE AMOUNT OF COMPENSATION
PAYABLE SHOULD NOT INCLUDE SPECULATIVE LOSSES CONSEQUENT UPON
REALIZATION OF THE REMOTE POSSIBILITY THAT THE OWNER WILL BE UNABLE TO
FIND A WHOLLY SUITABLE LOCATION FOR THE TRANSFER OF GOING-CONCERN
VALUE.  BUT WHEN THE GOVERNMENT HAS TAKEN THE TEMPORARY USE OF SUCH
PROPERTY, IT WOULD BE UNFAIR TO DENY COMPENSATION FOR A DEMONSTRABLE
LOSS OF GOING-CONCERN VALUE UPON THE ASSUMPTION THAT AN EVEN MORE
REMOTE POSSIBILITY - THE TEMPORARY TRANSFER OF GOING-CONCERN VALUE -
MIGHT HAVE BEEN REALIZED.  THE TEMPORARY INTERRUPTION AS OPPOSED TO THE
FINAL SEVERANCE OF OCCUPANCY SO GREATLY NARROWS THE RANGE OF
ALTERNATIVES OPEN TO THE CONDEMNEE THAT IT SUBSTANTIALLY INCREASES THE
CONDEMNOR'S OBLIGATION TO HIM.  IT IS A DIFFERENCE IN DEGREE WIDE
ENOUGH TO REQUIRE A DIFFERENCE IN RESULT.  COMPARE UNITED STATES V.
GENERAL MOTORS CORP., 323 U.S. 373, WITH UNITED STATES V. PETTY MOTOR
CO., 327 U.S. 372.  FN6 

WE CONCLUDE, THEREFORE, THAT SINCE THE GOVERNMENT FOR THE PERIOD OF
ITS OCCUPANCY OF PETITIONER'S PLANT HAS FOR ALL PRACTICAL PURPOSES
PREEMPTED THE TRADE ROUTES, IT MUST PAY COMPENSATION FOR WHATEVER
TRANSFERABLE VALUE THEIR TEMPORARY USE MAY HAVE HAD.  THE CASE MUST
ACCORDINGLY BE REMANDED TO THE DISTRICT COURT TO DETERMINE WHAT THAT
VALUE, IF ANY, WAS.  IN MAKING THAT DETERMINATION, THE COURT SHOULD
CONSIDER ANY EVIDENCE WHICH WOULD HAVE BEEN LIKELY TO CONVINCE A
POTENTIAL PURCHASER AS TO THE PRESENCE AND AMOUNT OF PETITIONER'S GOING
CONCERN VALUE, FOR THIS, AS WE HAVE POINTED OUT, MUST BE CONSIDERED
IDENTICAL WITH THE VALUE ALLEGED TO INHERE IN THE TRADE ROUTES.  THOUGH
WE DO NOT MEAN TO FORECLOSE THE CONSIDERATION OF OTHER TYPES OF
EVIDENCE OR THE APPLICATION OF OTHER TECHNIQUES OF APPRAISAL, IT MAY
SHED SOME LIGHT ON THE PROBLEM TO INDICATE AS BRIEFLY AS POSSIBLE THE
RELEVANCE OF THE EVIDENCE REJECTED AT THE TRIAL TO THE DETERMINATION OF
THE PRESENCE AND AMOUNT OF THIS VALUE. 

ONE INDEX OF GOING-CONCERN VALUE OFFERED BY PETITIONER IS THE RECORD
OF ITS PAST EARNINGS.  IF THEY SHOULD BE FOUND TO HAVE BEEN UNUSUALLY
HIGH IN PROPORTION TO INVESTMENT IN ITS PHYSICAL PROPERTY, THAT MIGHT
HAVE BEEN A PERSUASIVE INDICATION TO AN INFORMED PURCHASER OF THE
BUSINESS THAT MORE THAN TANGIBLE FACTORS WERE AT WORK.  FN7  SUCH A
PURCHASER MIGHT WELL HAVE MEASURED THE VALUE THUS CONTRIBUTED BY
CAPITALIZING, AT A RATE TAKING INTO ACCOUNT THE ELEMENT OF RISK  FN8
AND THE NUMBER OF YEARS DURING WHICH THESE FACTORS WOULD PROBABLY HAVE
EFFECT, THE EXCESS OF THE PROBABLE FUTURE RETURN UPON INVESTMENT IN THE
BUSINESS OVER A RETURN WHICH WOULD BE ADEQUATE COMPENSATION FOR THE
RISK OF INVESTMENT IN IT.  FN9  IF THE FIGURE CHOSEN AS REPRESENTING
INVESTMENT WERE COST, HOWEVER, THE POSSIBILITY WOULD PROBABLY HAVE BEEN
RECOGNIZED THAT THE CAPITALIZED VALUE OF THE EXCESS INCOME MIGHT
INVOLVE DUPLICATION OF VALUE ALREADY REFLECTED IN THE VALUATION OF THE
SITE.  FN10 

IN ADDITION TO OR AS A SUBSTITUTE FOR NET INCOME AS AN INDEX OF GOING
CONCERN VALUE, A PURCHASER MIGHT HAVE BEEN INFLUENCED BY SUCH EVIDENCE
OF EXPENDITURE UPON BUILDING UP THE BUSINESS AS PETITIONER'S RECORDS OF
PAYMENTS TO DELIVERYMEN FOR THE SOLICITATION OF NEW CUSTOMERS.  INSTEAD
OF BEGINNING WITH EXCESS EARNINGS RESULTING IN PART FROM EXPENDITURE ON
SOLICITATION AND THEN CAPITALIZING THEM TO REACH GOING-CONCERN VALUE,
SUCH EXPENDITURE CAN BE REGARDED AS A DIRECT CONTRIBUTION, IN
PROPORTION TO THE AMOUNT OF ITS LONG-TERM EFFECTIVENESS, TO THE CAPITAL
ASSETS OF THE BUSINESS.  BUT THE LEGITIMACY OF THE INFERENCE THAT
EXPENDITURES FOR THE PURPOSE OF SOLICITING BUSINESS HAVE RESULTED IN A
VALUE WHICH WILL CONTINUE TO CONTRIBUTE TO THE EARNING CAPACITY OF THE
BUSINESS IN LATER YEARS AND WHICH IS THEREFORE A VALUE THAT A PURCHASER
MIGHT PAY FOR, NECESSARILY DEPENDS ON THE CHARACTER OF THE BUSINESS AND
THE EXPERIENCE OF THOSE WHO ARE FAMILIAR WITH IT. FN11  THIS, AT ANY
RATE, IS A MATTER WHICH IS OPEN TO PROOF. 

THOUGH NOT CAPITALIZED AND CARRIED ON THE BOOKS, IT IS OBVIOUS THAT
SUCH AN ASSET MAY BE PRESENT EVEN IN A BUSINESS LOSING MONEY OR AT ANY
RATE NOT MAKING ENOUGH TO HAVE ANY "EXCESS" INCOME.  A RELEVANT MEASURE
OF ITS VALUE, HOWEVER, WOULD BE THE GROSS INCOME OF THE BUSINESS, AS IS
RECOGNIZED BY THE METHOD OF ESTIMATING GOING-CONCERN VALUE THAT HAS
BEEN EMPLOYED IN CASES DEALING WITH THE EXCESS-PROFITS TAX BASE OF
LAUNDRY BUSINESSES.  SEE METROPOLITAN LAUNDRY CO., 2 B.T.A. 1062;
PIONEER LAUNDRY CO., 5 B.T.A. 821.  PETITIONER OFFERED PROOF OF THE
VALUE OF ITS TRADE ROUTES BASED ON JUST SUCH A METHOD AND FURTHER
OFFERED TO SHOW THAT IT WAS A METHOD GENERALLY USED IN THE LAUNDRY
BUSINESS.  IF SO, IT WOULD ALSO BE RELEVANT.  FN12 

BUT EVEN THOUGH EVIDENCE IN ONE OR MORE OF THESE CATEGORIES MAY TEND
TO ESTABLISH THE VALUE OF PETITIONER'S TRADE ROUTES, THE CONSEQUENCE OF
ITS INADEQUACY MAY REQUIRE COMPLETE DENIAL OF COMPENSATION WHERE THAT
WOULD NOT BE THE RESULT IN THE CASE OF ITS TANGIBLE PROPERTY.  THE
REASON IS THIS:  EVIDENCE WHICH IS NEEDED ONLY TO FIX THE AMOUNT OF THE
VALUE OF THE TANGIBLE PROPERTY IS REQUIRED TO ESTABLISH THE VERY
EXISTENCE OF AN INTANGIBLE VALUE AS WELL AS ITS AMOUNT.  SINCE LAND AND
BUILDINGS ARE ASSUMED TO HAVE SOME TRANSFERABLE VALUE, WHEN A CLAIMANT
FOR JUST COMPENSATION FOR THEIR TAKING PROVES THAT HE WAS THEIR OWNER,
THAT PROOF IS IPSO FACTO PROOF THAT HE IS ENTITLED TO SOME
COMPENSATION.  THE CLAIMANT OF COMPENSATION FOR AN INTANGIBLE, ON THE
OTHER HAND, WHO CANNOT DEMONSTRATE A VALUE THAT A PURCHASER WOULD PAY
FOR HAS FAILED TO SUSTAIN HIS BURDEN OF PROVING THAT HE IS ENTITLED TO
ANY COMPENSATION WHATEVER.  THIS IS A BURDEN, MOREOVER, WHICH MUST BE
SUSTAINED BY SOLID EVIDENCE; ONLY THUS CAN THE PROBABILITY OF FUTURE
DEMAND BE SHOWN TO APPROXIMATE THAT FOR TANGIBLE PROPERTY. 
PARTICULARLY IS THIS TRUE WHERE THESE ISSUES ARE TO BE LEFT FOR JURY
DETERMINATION, FOR JURIES SHOULD NOT BE GIVEN SOPHISTICAL AND ABSTRUSE
FORMULAS AS THE BASIS FOR THEIR FINDINGS NOR BE LEFT TO APPLY EVEN
SENSIBLE FORMULAS TO FACTORS THAT ARE TOO ELUSIVE. 

IF THE DISTRICT COURT, BEARING IN MIND THESE CAUTIONS, SHOULD FIND
PETITIONER'S EVIDENCE ADEQUATE TO SUBMIT TO THE JURY FOR A FINDING AS
TO THE PRESENCE AND AMOUNT OF THE VALUE OF THE TRADE ROUTES, IT WILL
THEN BE NECESSARY ALSO TO INSTRUCT IT AS TO COMPUTATION OF THE
COMPENSATION DUE.  CONSISTENTLY WITH AN APPROACH WHICH SEEKS WITH THE
AID OF ALL RELEVANT DATA TO FIND AN AMOUNT REPRESENTING VALUE TO ANY
NORMALLY SITUATED OWNER OR PURCHASER OF THE INTERESTS TAKEN, NO VALUE
GREATER THAN THE VALUE OF THEIR TEMPORARY CONTROL WOULD BE
COMPENSABLE.  SINCE, AS WE HAVE NOTED, VALUE OF THIS SORT CAN HAVE ONLY
A LIMITED DURATION, THE VALUE OF THE TRADE ROUTES FOR THE PERIOD OF THE
ARMY'S OCCUPANCY OF THE PHYSICAL PROPERTY MIGHT BE ESTIMATED BY
COMPUTING THE DISCOUNTED VALUE AS OF THE BEGINNING OF THE PERIOD OF THE
NET CONTRIBUTION LIKELY TO HAVE BEEN MADE TO THE BUSINESS DURING THAT
PERIOD HAD IT BEEN CARRIED ON; ITS VALUE FOR EACH YEAR WOULD BE THE NET
CONTRIBUTION FOR THAT YEAR.  FN13  BUT HERE, AS HITHERTO, WE MEAN ONLY
TO ILLUSTRATE AND NOT TO PRESCRIBE THE COURSE WHICH MAY BE TAKEN UPON
REMAND OF THE CASE. 

PETITIONER ALSO PROTESTS AGAINST THE BASIS CHOSEN BY THE LOWER COURTS
FOR THE AWARD OF INTEREST.  IT ARGUES THAT THE GOVERNMENT, HAVING TAKEN
THE WHOLE PROPERTY ON NOVEMBER 21, 1942, SHOULD PAY INTEREST FROM THAT
DAY ON THE TOTAL AMOUNT OF THE AWARD.  WE HAVE ALREADY REJECTED,
HOWEVER, THE ONLY POSSIBLE THEORY UPON WHICH THIS CLAIM COULD REST -
THAT THE PROPER METHOD OF COMPUTING THE AWARD IS TO DETERMINE THE
DIFFERENCE BETWEEN THE VALUE OF THE BUSINESS ON THE DATE OF TAKING AND
ITS VALUE ON THE DATE OF RETURN.  IT FOLLOWS FROM OUR HOLDING THAT THE
PROPER MEASURE OF COMPENSATION WAS AN ANNUAL RENTAL WHICH CAME DUE ONLY
AT THE BEGINNING OF EACH RENEWAL OF THE ARMY'S OCCUPANCY, THAT INTEREST
SHOULD BE PAYABLE ON EACH INSTALLMENT OF RENTAL ONLY FROM THAT DATE. 

FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION, THE CASE IS
REVERSED AND REMANDED. 

FN1  THE PETITION WAS FILED UNDER SEC. 201 OF TITLE II OF THE SECOND
WAR POWERS ACT OF 1942, 56 STAT. 176, 177, 50 U.S.C. APP. SEC. 632. 

FN2  U.S. CONST. AMEND. V:  "  ...  NOR SHALL PRIVATE PROPERTY BE
TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION." 

FN3  ONCE TAKEN, OF COURSE, PROPERTY CAN HAVE NO ACTUAL MARKET VALUE
EXCEPT AS GIVING RISE TO A CLAIM AGAINST THE TAKER.  SEE 1 BONBRIGHT,
THE VALUATION OF PROPERTY 414(1937).  IN VIEW OF THE RESULTING
NECESSITY OF POSTULATING A HYPOTHETICAL SALE, CARE MUST BE TAKEN TO
AVOID THE EXTREMES, ON THE ONE HAND, OF EXCLUDING THE VALUE OF THE
PROPERTY FOR SPECIAL USES AND, ON THE OTHER, OF SUPPOSING THE
HYPOTHETICAL PURCHASER TO HAVE EITHER THE SAME IDIOSYNCRASIES AS THE
OWNER (COMPARE L.R. JUNCTION RY. V. WOODRUFF, 49 ARK. 381, 5 S.W. 792,
WITH PRODUCERS' WOOD PRESERVING CO. V. COMMISSIONERS OF SEWERAGE, 227
KY. 159, 12 S.W.2D 292) OR THE SAME OPPORTUNITIES FOR USE OF THE
PROPERTY AS A TAKER ARMED WITH THE POWER OF EMINENT DOMAIN (SEE E.G.,
UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53; MCGOVERN V. NEW
YORK, 229 U.S. 363; OLSON V. UNITED STATES, 292 U.S. 246; UNITED STATES
EX REL. T.V.A. V. POWELSON, 319 U.S. 266). 

FN4  ALTHOUGH THE THEORY UPON WHICH PETITIONER'S VARIOUS OFFERS OF
PROOF WERE MADE WAS NOT ALWAYS WELL DEFINED, THEIR IMPORT IS CLEAR
ENOUGH TO PRECLUDE REJECTING THEM AS MEANINGLESS. 

FN5  INDEED, FOR TAX PURPOSES THE TREASURY MAY INSIST THAT SUCH
"DEFERRED CHARGES" BE CAPITALIZED.  SEE NOTE 11, POST. 

FN6  THE LINE DRAWN IN THESE TWO CASES BETWEEN INCLUSION OF REMOVAL
COSTS IN COMPENSATION FOR A TEMPORARY TAKING OF LESS THAN A LESSEE'S
FULL TERM AND THEIR EXCLUSION WHERE THE WHOLE TERM HAS BEEN TAKEN IS
LIKEWISE BASED ON A RECOGNITION OF A DIFFERENCE IN THE DEGREE OF
RESTRICTION OF THE CONDEMNEE'S OPPORTUNITY TO ADJUST HIMSELF TO THE
TAKING.  IN UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. AT 382, THE
COURT, COMPARING A TEMPORARY WITH A FEE TAKING, OBSERVED:  "IT IS
ALTOGETHER ANOTHER MATTER WHEN THE GOVERNMENT DOES NOT TAKE HIS ENTIRE
INTEREST, BUT BY THE FORM OF ITS PROCEEDING CHOPS IT INTO BITS, OF
WHICH IT TAKES ONLY WHAT IT WANTS, HOWEVER FEW OR MINUTE, AND LEAVES
HIM HOLDING THE REMAINDER, WHICH MAY THEN BE ALTOGETHER USELESS TO HIM,
REFUSING TO PAY MORE THAN THE 'MARKET RENTAL VALUE' FOR THE USE OF THE
CHIPS SO CUT OFF.  THIS IS NEITHER THE 'TAKING' NOR THE 'JUST
COMPENSATION' THE FIFTH AMENDMENT CONTEMPLATES."  IN UNITED STATES V.
PETTY MOTOR CO., 327 U.S. AT 379, THE COURT SAID:  "THERE IS A
FUNDAMENTAL DIFFERENCE BETWEEN THE TAKING OF A PART OF A LEASE AND THE
TAKING OF THE WHOLE LEASE.  THAT DIFFERENCE IS THAT THE LESSEE MUST
RETURN TO THE LEASEHOLD AT THE END OF THE GOVERNMENT'S USE OR AT LEAST
THE RESPONSIBILITY FOR THE PERIOD OF THE LEASE WHICH IS NOT TAKEN RESTS
UPON THE LESSEE.  THIS WAS BROUGHT OUT IN THE GENERAL MOTORS DECISION. 
BECAUSE OF THAT CONTINUING OBLIGATION IN ALL TAKINGS OF TEMPORARY
OCCUPANCY OF LEASEHOLDS, THE VALUE OF THE RIGHTS OF THE LESSEES WHICH
ARE TAKEN MAY BE AFFECTED BY EVIDENCE OF THE COST OF TEMPORARY
REMOVAL." 

FN7  THE GOVERNMENT ARGUES THAT IF PETITIONER'S TESTIMONY AS TO THE
VALUE OF ITS PHYSICAL PROPERTY WERE ACCEPTED, IT COULD HAVE NO GOING
CONCERN VALUE BECAUSE ITS AVERAGE NET EARNINGS FOR THE FIVE YEARS
PRECEDING THE TAKING WERE TOO LOW TO ESTABLISH ANY EXCESS RETURN.  THE
ALLEGED VALUE WAS ABOUT $650,000, AND THE AVERAGE ANNUAL EARNINGS
$39,375.39, A RETURN ON THAT VALUE OF ABOUT 6%.  ON THE OTHER HAND, THE
GOVERNMENT'S OWN EXPERT WITNESSES RESPECTIVELY VALUED THE PHYSICAL
PROPERTY, AFTER ALLOWING DEPRECIATION, AT $455,000 AND $433,500, AND ON
THAT BASIS THE RATE OF RETURN WOULD BE ABOUT 9%.  IT IS NOT FOR US, AT
ANY RATE, TO ASSUME THAT 6% RATHER THAN 5% OR SOME LOWER FIGURE IS THE
LOWEST THAT WOULD COMPENSATE INVESTMENT IN THE PHYSICAL PROPERTY. 

FN8  THE IMPORTANCE OF VARYING IN ACCORDANCE WITH VARYING RISKS THE
PERCENTAGE AT WHICH INCOME IS CAPITALIZED TO OBTAIN BUSINESS VALUE HAS
BEEN EMPHASIZED BY THE SECURITIES AND EXCHANGE COMMISSION IN COMPUTING
VALUE FOR PURPOSES OF SEC. 77 B REORGANIZATIONS.  SEE NOTE, 55 HARV. L.
REV. 125, 133(1941).  SEE ALSO FISHER, THE NATURE OF CAPITAL AND
INCOME, C. 16, "THE RISK ELEMENT" (1906); ANGELL, VALUATION PROBLEMS
14(PRACTICING LAW INSTITUTE, 1945). 

FN9  SEE YANG, GOODWILL AND OTHER INTANGIBLES, CC. 5, 6(1927);
SIMPSON, GOODWILL IN 6 ENCYC.  SOC.  SCI. 698, 699(1931).  FOR A
SYSTEMATIC DISCUSSION OF THE STEPS INVOLVED IN MAKING SUCH AN ESTIMATE,
SEE ACCOUNTANTS' HANDBOOK 869 ET SEQ. (PATON ED., 1944).  IT WOULD BE
THEORETICALLY POSSIBLE, OF COURSE, TO ARRIVE AT THE TOTAL VALUE OF THE
BUSINESS NOT BY ADDING GOING-CONCERN VALUE OBTAINED BY CAPITALIZATION
OF EXCESS INCOME TO A VALUATION OF THE PHYSICAL PROPERTY OBTAINED IN
SOME OTHER WAY, BUT BY CAPITALIZATION OF ALL INCOME.  SEE 1 BONBRIGHT,
THE VALUATION OF PROPERTY, CC. 11, 12; (1937); 1 DEWING, FINANCIAL
POLICY OF CORPORATIONS, BK. II, C. 1(4TH ED., 1941); CF. CONSOLIDATED
ROCK PRODUCTS CO. V. DU BOIS, 312 U.S. 510, 525-26; INSTITUTIONAL
INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318 U.S. 523, 540-42.  BUT
A FORECAST OF FUTURE EARNINGS IS SUBJECT TO INACCURACY RESULTING BOTH
FROM THE DIFFICULTY OF DISCOUNTING THE NON-RECURRENT CIRCUMSTANCES
WHICH ENTERED INTO THE RECORD OF PAST EARNINGS UPON WHICH THE FORECAST
IS BASED (EVEN IF NO PROJECTION OF FUTURE EARNINGS IS EXPRESSLY MADE,
PAST EARNINGS CAN BE USED AS A BASIS OF CAPITALIZATION ONLY ON THE
ASSUMPTION THAT THEY WILL CONTINUE) AND THE HAZARDS OF ANY PREDICTION
OF FUTURE CONDITIONS OF BUSINESS.  SEE MAY, A FOOTNOTE ON VALUE, 72 J.
OF ACCOUNTANCY 225(1941); ORGEL, VALUATION UNDER THE LAW OF EMINENT
DOMAIN SEC. 216(1936).  THE CONSEQUENCES OF INACCURACY ARE REDUCED BY
CONFINING THE CAPITALIZATION TO EXCESS INCOME, BUT OF COURSE IT IS A
QUESTION OF FACT WHETHER FUTURE EXCESS INCOME CAN BE PREDICTED WITH
CERTAINTY SUFFICIENT TO PERSUADE A PURCHASER OF THE BUSINESS TO PAY FOR
ITS CAPITALIZED VALUE.  SEE PP. 19-20, POST. 

FN10  THIS POSSIBILITY WOULD ARISE WHEREVER COST OF THE PHYSICAL
PROPERTY, BECAUSE THE NEIGHBORHOOD WAS UNDEVELOPED AT THE TIME THE
BUSINESS SITE WAS ACQUIRED OR FOR SOME OTHER REASON, DID NOT WHOLLY
REFLECT ENHANCEMENT IN ITS MARKET VALUE BY THE ADVANTAGES OF ITS
LOCATION, SINCE THESE ADVANTAGES WOULD INCREASE TOTAL INCOME.  SUCH
DUPLICATION COULD BE AVOIDED, HOWEVER, BY USING AS THE MEASURE OF
INVESTMENT NOT COST BUT MARKET VALUE. 

FN11  IN THE CASE OF A BUSINESS LIKE THE LAUNDRY BUSINESS WHICH MUST
ENTICE PATRONS FROM ALREADY ESTABLISHED COMPETITORS IN AN AREA CONFINED
BY THE RANGE OF DELIVERY SERVICE, IT MAY BE THAT EXPENDITURE UPON
SOLICITATION IS REGARDED AS A CAPITAL EXPENDITURE FOR PART OF A
COMBINATION OF INCOME-PRODUCING ASSETS QUITE AS MUCH AS INVESTMENT IN
THE LAND AND BUILDING.  COMPARE HOUSTON NATURAL GAS CORP. V.
COMMISSIONER, 90 F.2D 814(C.A.4TH CIR.), HOLDING THE SALARIES AND
EXPENSES OF SOLICITORS OF NEW CUSTOMERS FOR A PUBLIC UTILITY TO BE A
CAPITAL EXPENDITURE NONDEDUCTIBLE FROM CURRENT INCOME BECAUSE
CONTRIBUTING TO INCOME IN FUTURE YEARS.  THE TAX COURT, ITS
PREDECESSOR, THE BOARD OF TAX APPEALS, AND THE COURTS OF APPEALS HAVE
FREQUENTLY HELD SUCH ANALOGOUS EXPENDITURES AS THOSE MADE TO INCREASE
THE CIRCULATION OF NEWSPAPERS AND FOR CERTAIN FORMS OF ADVERTISING TO
BE CAPITAL EXPENDITURES.  FOR COLLECTIONS OF SUCH CASES, SEE 4 MERTENS,
LAW OF FEDERAL INCOME TAXATION SEC. 25.18 AND SEC. 25.27(1942).  SEE
ALSO DODD AND BAKER, CASES AND MATERIALS ON BUSINESS ASSOCIATIONS 1125
26(1940).  COMPARE THE MATERIALS ON VALUATION OF GOOD WILL AS PART OF A
DECEDENT'S GROSS ESTATE COLLECTED IN 2 PAUL, FEDERAL ESTATE AND GIFT
TAXATION SEC. 18.16(1942), AND PAUL, FEDERAL ESTATE AND GIFT TAXATION
SEC. 18.16(1946 SUPPLEMENT). 

FN12  PROCEEDING FROM THE ASSUMPTION THAT LAUNDRY BUSINESSES ARE A
CLASS HAVING UNIFORM CHARACTERISTICS, THIS METHOD PRESUPPOSES INFORMED
OPINION BOTH AS TO THE NORMAL RATIO OF A GIVEN VOLUME OF EXPENDITURE ON
SOLICITATION TO A GIVEN VOLUME OF GROSS INCOME AND AS TO THE NORMAL
DURATION OF THE CONTRIBUTION TO GROSS OF A GIVEN AMOUNT OF SUCH
EXPENDITURE.  THE BOARD OF TAX APPEALS CASES CITED AS WELL AS
PETITIONER'S OFFER OF PROOF INVOLVED THE FURTHER REFINEMENT THAT THE
RATIOS CHOSEN VARIED WITH THE GROSS INCOME ATTRIBUTABLE TO EACH CLASS
OF CUSTOMERS. 

FN13  THAT CONTRIBUTION WOULD NOT OF COURSE CONTINUE FROM YEAR TO
YEAR IN A STRAIGHT LINE, THOUGH IT MAY PROVE MORE CONVENIENT TO TREAT
IT AS IF IT DID.  THE ANALYSIS OF COMPOUND-INTEREST METHODS OF
DEPRECIATION ACCOUNTING IN PATON, ADVANCED ACCOUNTING, C. 12(1941),
GIVES INSIGHT INTO WAYS IN WHICH THE RATE OF DECLINE IN THE VALUE OF
SUCH AN INTANGIBLE MIGHT BE COMPUTED.  SEE ALSO ID. AT 435; CANNING,
THE ECONOMICS OF ACCOUNTANCY, CC. 13, 14(1929); YANG, GOODWILL AND
OTHER INTANGIBLES, 201 ET SEQ. (1927). 

MR. JUSTICE RUTLEDGE, CONCURRING. 

AS I UNDERSTAND THE OPINION OF THE COURT, ITS EFFECT IS SIMPLY TO
RECOGNIZE THAT SHORT-TERM TAKINGS OF PROPERTY ENTAIL CONSIDERATIONS NOT
PRESENT WHERE COMPLETE TITLE HAS BEEN TAKEN.  RULES DEVELOPED FOR THE
SIMPLE SITUATION IN WHICH ALL THE OWNER'S INTERESTS IN THE PROPERTY
HAVE BEEN IRREVOCABLY SEVERED SHOULD NOT BE FORCED TO FIT THE MORE
COMPLEX CONSEQUENCES OF A PIECEMEAL TAKING OF SUCCESSIVE SHORT-TERM
INTERESTS.  SUCH TAKINGS MAY INVOLVE COMPENSABLE ELEMENTS THAT IN THE
NATURE OF THINGS ARE NOT PRESENT WHERE THE WHOLE IS TAKEN. 

WITH THIS MUCH I AGREE.  BUT HAVING RECOGNIZED THE POSSIBLE
COMPENSABILITY OF INTANGIBLE INTERESTS, I WOULD NOT SUBSCRIBE TO A
FORMULATION OF THEORETICAL RULES DEFINING THEIR NATURE OR PRESCRIBING
THEIR MEASUREMENT.  WHAT SEEMS THEORETICALLY SOUND MAY PROVE UNWORKABLE
FOR JUDICIAL ADMINISTRATION.  BUT I DO NOT UNDERSTAND THE OPINION OF
THE COURT TO DO MORE THAN INDICATE POSSIBLE APPROACHES TO THE
COMPENSATION OF SUCH INTERESTS.  SINCE REMAND OF THE CASE WILL PERMIT
THE EMPIRICAL TESTING OF THESE APPROACHES, I JOIN IN THE COURT'S
OPINION. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE REED CONCUR, DISSENTING. 

THE UNITED STATES TOOK THIS PLANT IN ORDER TO RUN A LAUNDRY FOR THE
ARMY, NOT FOR THE PUBLIC.  THE TRADE-ROUTES WERE WHOLLY USELESS TO IT.
IT NEVER USED THEM.  YET IT IS FORCED TO PAY FOR THEM UNDER A NEW
CONSTITUTIONAL DOCTRINE THAT IS FORGED FOR THIS CASE. 

HERETOFORE IT WAS SETTLED THAT THE OWNER COULD NOT RECEIVE
COMPENSATION UNDER THE FIFTH AMENDMENT FOR THE DESTRUCTION OF A
BUSINESS WHICH RESULTED FROM THE TAKING OF HIS PHYSICAL PROPERTY, EVEN
THOUGH THE BUSINESS COULD NOT BE REESTABLISHED ELSEWHERE.  MITCHELL V.
UNITED STATES, 267 U.S. 341; BOTHWELL V. UNITED STATES, 254 U.S. 231. 
THAT RESULT FOLLOWED FROM THE RULE THAT CONSEQUENTIAL DAMAGES RESULTING
FROM THE TAKING WERE NOT COMPENSABLE.  SEE UNITED STATES EX REL. T.V.A.
V. POWELSON, 319 U.S. 266, 281-283; UNITED STATES V. PETTY MOTOR CO.,
327 U.S. 372, 377-378.    AND SO IN THIS CASE IF THE UNITED STATES HAD
TAKEN THIS PLANT FOR A PERMANENT LAUNDRY TO RUN FOR THE ARMY AND NOT
FOR THE PUBLIC  FN1  IT NEED NOT PAY FOR THE TRADE-ROUTES.  AS JUSTICE
BRANDEIS SAID IN MITCHELL V. UNITED STATES, SUPRA, P. 345, "IF THE
BUSINESS WAS DESTROYED, THE DESTRUCTION WAS AN UNINTENDED INCIDENT OF
THE TAKING OF LAND."  AS MUCH SEEMS TO BE CONCEDED BY THE COURT IN THE
PRESENT CASE.  THAT CONCESSION IS NECESSARY IF PRECEDENT IS TO
CONTROL.  FOR IN UNITED STATES V. GENERAL MOTORS, 323 U.S. 373, 383, WE
SAID THAT A TEMPORARY TAKING AND A PERMANENT TAKING WERE TO BE TREATED
ALIKE IN THAT RESPECT.  IN THAT CASE THE COST OF MOVING OUT AND
PREPARING THE SPACE FOR THE NEW OCCUPANCY WAS ALLOWED INSOFAR AS IT
BORE ON THE MARKET VALUE OF THE TEMPORARY OCCUPANCY.  BUT WE RULED THAT
"PROOF OF VALUE PECULIAR TO THE RESPONDENT, OR THE VALUE OF GOOD-WILL
OR OF INJURY TO THE BUSINESS OF THE RESPONDENT" MUST IN THAT CASE "AS
IN THE CASE OF THE CONDEMNATION OF A FEE," BE EXCLUDED FROM THE
RECKONING, P. 383.  THE COURT TODAY REPUDIATES THAT RULING WHEN IT
HOLDS THAT THE UNITED STATES MUST PAY FOR THE TRADE-ROUTES OF
PETITIONER WHEN ITS TAKING OF THE LAUNDRY WAS ONLY TEMPORARY.  THERE
WOULD BE A COMPLETE DESTRUCTION OF THE TRADE-ROUTES IF THE TAKING OF
THE PLANT WERE PERMANENT AND A DEPRECIATION OF THEM (I ASSUME) WHERE IT
IS TEMPORARY.  WHY THE LATTER IS COMPENSABLE WHEN THE FORMER IS NOT IS
A MYSTERY.  EVEN THE ACADEMIC DISSERTATION ON VALUATION WHICH THE
OPINION IMPORTS INTO THE FIFTH AMENDMENT FROM ACCOUNTING LITERATURE
CONCEALS THE ANSWER. 

THE TRUTH OF THE MATTER IS THAT THE UNITED STATES IS BEING FORCED TO
PAY NOT FOR WHAT IT GETS BUT FOR WHAT THE OWNER LOSES.  THE VALUE OF
TRADE-ROUTES REPRESENTS THE PATRONAGE OF THE CUSTOMERS OF THE LAUNDRY. 
PETITIONER, I ASSUME, LOST SOME OF THEM AS A RESULT OF THE GOVERNMENT'S
TEMPORARY TAKING OF THE LAUNDRY.  BUT THE GOVERNMENT DID NOT TAKE
THEM.  THERE WAS INDEED NO POSSIBLE WAY IN WHICH IT COULD HAVE USED
THEM.  HENCE THE DOCTRINE THAT MAKES THE UNITED STATES PAY FOR THEM IS
NEW AND STARTLING.  IT PROMISES SWOLLEN AWARDS WHICH CONGRESS IN ITS
GENEROSITY MIGHT PERMIT BUT WHICH IT HAS NEVER BEEN ASSUMED THE
CONSTITUTION COMPELS. 

PETITIONER HAS RECEIVED ALL THAT IT IS ENTITLED TO UNDER THE
CONSTITUTION.  IT HAS OBTAINED AFTER THREE YEARS AND SEVEN MONTHS OF
USE OF ITS PLANT BY THE UNITED STATES A SUM OF MONEY EQUAL TO ALMOST
HALF THE MARKET VALUE OF THE FEE.  THAT AWARD WAS BASED ON THE MARKET
RENTAL VALUE OF THE PLANT FN2  PLUS AN ALLOWANCE TO RESTORE THE
PROPERTY TO ITS ORIGINAL CONDITION.  FN3  UNDER THE AUTHORITIES THAT
AWARD CANNOT BE INCREASED UNLESS WE ARE TO SIT AS A COMMITTEE ON CLAIMS
OF THE CONGRESS AND AWARD CONSEQUENTIAL DAMAGES. 

FN1  AS RESPECTS PAYMENT FOR THE GOING-CONCERN VALUE WHEN THE
GOVERNMENT TAKES OVER A BUSINESS TO RUN IT AS SUCH, SEE OMAHA V. OMAHA
WATER CO., 218 U.S. 180, 202-203. 

FN2  THAT IS THE MEASURE OF COMPENSATION FOR THE TAKING OF A
TEMPORARY INTEREST IN PROPERTY.  UNITED STATES V. GENERAL MOTORS CORP.,
323 U.S. 373, 382; UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372,
378. 

FN3  COMPENSATION FOR ORDINARY WEAR AND TEAR IS INCLUDED IN FIXING
THE MARKET RENTAL VALUE OF THE PROPERTY.  BUT WEAR AND TEAR ABOVE THAT
AMOUNT IS SEPARATELY COMPENSABLE.  SEE IN RE CONDEMNATION OF LANDS, 250
F. 314, 315; UNITED STATES V. CERTAIN PARCELS OF LAND, 55 F.SUPP.  257,
263; UNITED STATES V. 5,901.77 ACRES OF LAND, 65 F.SUPP.  454; UNITED
STATES V. 14.4756 ACRES OF LAND, 71 F.SUPP.  1005. 
..END :






WOLF V. COLORADO, 338 U.S. 25 


NOS. 17 AND 18.  ARGUED OCTOBER 19, 1948.  - DECIDED JUNE 27, 1949.  -
117 COLO. 279, 321, 187 P.2D 926, 928, AFFIRMED. 


IN A PROSECUTION IN A STATE COURT FOR A STATE CRIME, THE FOURTEENTH
AMENDMENT OF THE FEDERAL CONSTITUTION DOES NOT FORBID THE ADMISSION OF
RELEVANT EVIDENCE EVEN THOUGH OBTAINED BY AN UNREASONABLE SEARCH AND
SEIZURE.  PP. 25-33. 

(A)  ARBITRARY INTRUSION INTO PRIVACY BY THE POLICE IS PROHIBITED BY
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 27-28. 

(B)  WHILE THE DOCTRINE OF WEEKS V. UNITED STATES, 232 U.S. 383,
MAKING EVIDENCE SECURED IN VIOLATION OF THE FOURTH AMENDMENT
INADMISSIBLE IN FEDERAL COURTS IS ADHERED TO, IT IS NOT IMPOSED ON THE
STATES BY THE FOURTEENTH AMENDMENT.  PP. 28-33. 

WOLF V. COLORADO. 

CERTIORARI TO THE SUPREME COURT OF COLORADO. 

JUDGMENTS OF CONVICTION IN TWO CRIMINAL PROSECUTIONS IN A STATE COURT
WERE SUSTAINED BY THE STATE SUPREME COURT AGAINST CLAIMS OF DENIAL OF
RIGHTS UNDER THE FEDERAL CONSTITUTION.  117 COLO. 279, 321, 187 P.2D
926, 928.  THIS COURT GRANTED CERTIORARI.  333 U.S. 879.  AFFIRMED, P.
33. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE PRECISE QUESTION FOR CONSIDERATION IS THIS:  DOES A CONVICTION BY
A STATE COURT FOR A STATE OFFENSE DENY THE "DUE PROCESS OF LAW"
REQUIRED BY THE FOURTEENTH AMENDMENT, SOLELY BECAUSE EVIDENCE THAT WAS
ADMITTED AT THE TRIAL WAS OBTAINED UNDER CIRCUMSTANCES WHICH WOULD HAVE
RENDERED IT INADMISSIBLE IN A PROSECUTION FOR VIOLATION OF A FEDERAL
LAW IN A COURT OF THE UNITED STATES BECAUSE THERE DEEMED TO BE AN
INFRACTION OF THE FOURTH AMENDMENT AS APPLIED IN WEEKS V. UNITED
STATES, 232 U.S. 383?  THE SUPREME COURT OF COLORADO HAS SUSTAINED
CONVICTIONS IN WHICH SUCH EVIDENCE WAS ADMITTED, 117 COL. 279, 187 P.2D
926; 117 COL. 321, 187 P.2D 928, AND WE BROUGHT THE CASES HERE.  333
U.S. 879. 

UNLIKE THE SPECIFIC REQUIREMENTS AND RESTRICTIONS PLACED BY THE BILL
OF RIGHTS (AMENDMENTS I TO VIII) UPON THE ADMINISTRATION OF CRIMINAL
JUSTICE BY FEDERAL AUTHORITY, THE FOURTEENTH AMENDMENT DID NOT SUBJECT
CRIMINAL JUSTICE IN THE STATES TO SPECIFIC LIMITATIONS.  THE NOTION
THAT THE "DUE PROCESS OF LAW" GUARANTEED BY THE FOURTEENTH AMENDMENT IS
SHORTHAND FOR THE FIRST EIGHT AMENDMENTS OF THE CONSTITUTION AND
THEREBY INCORPORATES THEM HAS BEEN REJECTED BY THIS COURT AGAIN AND
AGAIN, AFTER IMPRESSIVE CONSIDERATION.  SEE, E.G., HURTADO V.
CALIFORNIA, 110 U.S. 516; TWINING V. NEW JERSEY, 211 U.S. 78; BROWN V.
MISSISSIPPI, 297 U.S. 278; PALKO V. CONNECTICUT, 302 U.S. 319.  ONLY
THE OTHER DAY THE COURT REAFFIRMED THIS REJECTION AFTER THOROUGH
REEXAMINATION OF THE SCOPE AND FUNCTION OF THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  ADAMSON V. CALIFORNIA, 332 U.S. 46.  THE
ISSUE IS CLOSED. 

FOR PURPOSES OF ASCERTAINING THE RESTRICTIONS WHICH THE DUE PROCESS
CLAUSE IMPOSED UPON THE STATES IN THE ENFORCEMENT OF THEIR CRIMINAL
LAW, WE ADHERE TO THE VIEWS EXPRESSED IN PALKO V. CONNECTICUT, SUPRA,
302 U.S. 319.  THAT DECISION SPEAKS TO US WITH THE GREAT WEIGHT OF THE
AUTHORITY, PARTICULARLY IN MATTERS OF CIVIL LIBERTY, OF A COURT THAT
INCLUDED MR. CHIEF JUSTICE HUGHES, MR. JUSTICE BRANDEIS, MR. JUSTICE
STONE AND MR. JUSTICE CARDOZO, TO NAME ONLY THE DEAD.  IN REJECTING THE
SUGGESTION THAT THE DUE PROCESS CLAUSE INCORPORATED THE ORIGINAL BILL
OF RIGHTS, MR. JUSTICE CARDOZO REAFFIRMED ON BEHALF OF THAT COURT A
DIFFERENT BUT DEEPER AND MORE PERVASIVE CONCEPTION OF THE DUE PROCESS
CLAUSE.  THIS CLAUSE EXACTS FROM THE STATES FOR THE LOWLIEST AND THE
MOST OUTCAST ALL THAT IS "IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY." 
302 U.S. AT 325. 

DUE PROCESS OF LAW THUS CONVEYS NEITHER FORMAL NOR FIXED NOR NARROW
REQUIREMENTS.  IT IS THE COMPENDIOUS EXPRESSION FOR ALL THOSE RIGHTS
WHICH THE COURTS MUST ENFORCE BECAUSE THEY ARE BASIC TO OUR FREE
SOCIETY.  BUT BASIC RIGHTS DO NOT BECOME PETRIFIED AS OF ANY ONE TIME,
EVEN THOUGH, AS A MATTER OF HUMAN EXPERIENCE, SOME MAY NOT TOO
RHETORICALLY BE CALLED ETERNAL VERITIES.  IT IS OF THE VERY NATURE OF A
FREE SOCIETY TO ADVANCE IN ITS STANDARDS OF WHAT IS DEEMED REASONABLE
AND RIGHT.  REPRESENTING AS IT DOES A LIVING PRINCIPLE, DUE PROCESS IS
NOT CONFINED WITHIN A PERMANENT CATALOGUE OF WHAT MAY AT A GIVEN TIME
BE DEEMED THE LIMITS OR THE ESSENTIALS OF FUNDAMENTAL RIGHTS. 

TO RELY ON A TIDY FORMULA FOR THE EASY DETERMINATION OF WHAT IS A
FUNDAMENTAL RIGHT FOR PURPOSES OF LEGAL ENFORCEMENT MAY SATISFY A
LONGING FOR CERTAINTY BUT IGNORES THE MOVEMENTS OF A FREE SOCIETY.  IT
BELITTLES THE SCALE OF THE CONCEPTION OF DUE PROCESS.  THE REAL CLUE TO
THE PROBLEM CONFRONTING THE JUDICIARY IN THE APPLICATION OF THE DUE
PROCESS CLAUSE IS NOT TO ASK WHERE THE LINE IS ONCE AND FOR ALL TO BE
DRAWN BUT TO RECOGNIZE THAT IT IS FOR THE COURT TO DRAW IT BY THE
GRADUAL AND EMPIRIC PROCESS OF "INCLUSION AND EXCLUSION."  DAVIDSON V.
NEW ORLEANS, 96 U.S. 97, 104.  THIS WAS THE COURT'S INSIGHT WHEN FIRST
CALLED UPON TO CONSIDER THE PROBLEM; TO THIS INSIGHT THE COURT HAS ON
THE WHOLE BEEN FAITHFUL AS CASE AFTER CASE HAS COME BEFORE IT SINCE
DAVIDSON V. NEW ORLEANS WAS DECIDED. 

THE SECURITY OF ONE'S PRIVACY AGAINST ARBITRARY INTRUSION BY THE
POLICE - WHICH IS AT THE CORE OF THE FOURTH AMENDMENT - IS BASIC TO A
FREE SOCIETY.  IT IS THEREFORE IMPLICIT IN "THE CONCEPT OF ORDERED
LIBERTY" AND AS SUCH ENFORCEABLE AGAINST THE STATES THROUGH THE DUE
PROCESS CLAUSE.  THE KNOCK AT THE DOOR, WHETHER BY DAY OR BY NIGHT, AS
A PRELUDE TO A SEARCH, WITHOUT AUTHORITY OF LAW BUT SOLELY ON THE
AUTHORITY OF THE POLICE, DID NOT NEED THE COMMENTARY OF RECENT HISTORY
TO BE CONDEMNED AS INCONSISTENT WITH THE CONCEPTION OF HUMAN RIGHTS
ENSHRINED IN THE HISTORY AND THE BASIC CONSTITUTIONAL DOCUMENTS OF
ENGLISH-SPEAKING PEOPLES. 

ACCORDINGLY, WE HAVE NO HESITATION IN SAYING THAT WERE A STATE
AFFIRMATIVELY TO SANCTION SUCH POLICE INCURSION INTO PRIVACY IT WOULD
RUN COUNTER TO THE GUARANTY OF THE FOURTEENTH AMENDMENT.  BUT THE WAYS
OF ENFORCING SUCH A BASIC RIGHT RAISE QUESTIONS OF A DIFFERENT ORDER. 
HOW SUCH ARBITRARY CONDUCT SHOULD BE CHECKED, WHAT REMEDIES AGAINST IT
SHOULD BE AFFORDED, THE MEANS BY WHICH THE RIGHT SHOULD BE MADE
EFFECTIVE, ARE ALL QUESTIONS THAT ARE NOT TO BE SO DOGMATICALLY
ANSWERED AS TO PRECLUDE THE VARYING SOLUTIONS WHICH SPRING FROM AN
ALLOWABLE RANGE OF JUDGMENT ON ISSUES NOT SUSCEPTIBLE OF QUANTITATIVE
SOLUTION. 

IN WEEKS V. UNITED STATES, SUPRA, THIS COURT HELD THAT IN A FEDERAL
PROSECUTION THE FOURTH AMENDMENT BARRED THE USE OF EVIDENCE SECURED
THROUGH AN ILLEGAL SEARCH AND SEIZURE.  THIS RULING WAS MADE FOR THE
FIRST TIME IN 1914.  IT WAS NOT DERIVED FROM THE EXPLICIT REQUIREMENTS
OF THE FOURTH AMENDMENT; IT WAS NOT BASED ON LEGISLATION EXPRESSING
CONGRESSIONAL POLICY IN THE ENFORCEMENT OF THE CONSTITUTION.  THE
DECISION WAS A MATTER OF JUDICIAL IMPLICATION.  SINCE THEN IT HAS BEEN
FREQUENTLY APPLIED AND WE STOUTLY ADHERE TO IT.  BUT THE IMMEDIATE
QUESTION IS WHETHER THE BASIC RIGHT TO PROTECTION AGAINST ARBITRARY
INTRUSION BY THE POLICE DEMANDS THE EXCLUSION OF LOGICALLY RELEVANT
EVIDENCE OBTAINED BY AN UNREASONABLE SEARCH AND SEIZURE BECAUSE, IN A
FEDERAL PROSECUTION FOR A FEDERAL CRIME, IT WOULD BE EXCLUDED.  AS A
MATTER OF INHERENT REASON, ONE WOULD SUPPOSE THIS TO BE AN ISSUE AS TO
WHICH MEN WITH COMPLETE DEVOTION TO THE PROTECTION OF THE RIGHT OF
PRIVACY MIGHT GIVE DIFFERENT ANSWERS.  WHEN WE FIND THAT IN FACT MOST
OF THE ENGLISH-SPEAKING WORLD DOES NOT REGARD AS VITAL TO SUCH
PROTECTION THE EXCLUSION OF EVIDENCE THUS OBTAINED, WE MUST HESITATE TO
TREAT THIS REMEDY AS AN ESSENTIAL INGREDIENT OF THE RIGHT.  THE
CONTRARIETY OF VIEWS OF THE STATES IS PARTICULARLY IMPRESSIVE IN VIEW
OF THE CAREFUL RECONSIDERATION WHICH THEY HAVE GIVEN THE PROBLEM IN THE
LIGHT OF THE WEEKS DECISION. 

I. BEFORE THE WEEKS DECISION 27 STATES HAD PASSED ON THE
ADMISSIBILITY OF EVIDENCE OBTAINED BY UNLAWFUL SEARCH AND SEIZURE. 

(A)  OF THESE, 26 STATES OPPOSED THE WEEKS DOCTRINE.  (SEE APPENDIX,
TABLE A.) 

(B)  OF THESE, 1 STATE ANTICIPATED THE WEEKS DOCTRINE.  (TABLE B.) 

II.  SINCE THE WEEKS DECISION 47 STATES ALL TOLD HAVE PASSED ON THE
WEEKS DOCTRINE.  (TABLE C.) 

(A)  OF THESE, 20 PASSED ON IT FOR THE FIRST TIME. 

(1)  OF THE FOREGOING STATES, 6 FOLLOWED THE WEEKS DOCTRINE.  (TABLE
D.) 

(2)  OF THE FOREGOING STATES, 14 REJECTED THE WEEKS DOCTRINE.  (TABLE
E.) 

(B)  OF THESE, 26 STATES REVIEWED PRIOR DECISIONS CONTRARY TO THE
WEEKS DOCTRINE. 

(1)  OF THESE, 10 STATES HAVE FOLLOWED WEEKS, OVERRULING OR
DISTINGUISHING THEIR PRIOR DECISIONS.  (TABLE F.) 

(2)  OF THESE, 16 STATES ADHERED TO THEIR PRIOR DECISIONS AGAINST
WEEKS.  (TABLE G.) 

(C)  OF THESE, 1 STATE REPUDIATED ITS PRIOR FORMULATION OF THE WEEKS
DOCTRINE.  (TABLE H.) 

III.  AS OF TODAY 31 STATES REJECT THE WEEKS DOCTRINE, 16 STATES ARE
IN AGREEMENT WITH IT. (TABLE I.) 

IV.  OF 10 JURISDICTIONS WITHIN THE UNITED KINGDOM AND THE BRITISH
COMMONWEALTH OF NATIONS WHICH HAVE PASSED ON THE QUESTION, NONE HAS
HELD EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE INADMISSIBLE. 
(TABLE J.) 

THE JURISDICTIONS WHICH HAVE REJECTED THE WEEKS DOCTRINE HAVE NOT
LEFT THE RIGHT TO PRIVACY WITHOUT OTHER MEANS OF PROTECTION.  FN1
INDEED, THE EXCLUSION OF EVIDENCE IS A REMEDY WHICH DIRECTLY SERVES
ONLY TO PROTECT THOSE UPON WHOSE PERSON OR PREMISES SOMETHING
INCRIMINATING HAS BEEN FOUND.  WE CANNOT, THEREFORE, REGARD IT AS A
DEPARTURE FROM BASIC STANDARDS TO REMAND SUCH PERSONS, TOGETHER WITH
THOSE WHO EMERGE SCATHELESS FROM A SEARCH, TO THE REMEDIES OF PRIVATE
ACTION AND SUCH PROTECTION AS THE INTERNAL DISCIPLINE OF THE POLICE,
UNDER THE EYES OF AN ALERT PUBLIC OPINION, MAY AFFORD.  GRANTING THAT
IN PRACTICE THE EXCLUSION OF EVIDENCE MAY BE AN EFFECTIVE WAY OF
DETERRING UNREASONABLE SEARCHES, IT IS NOT FOR THIS COURT TO CONDEMN AS
FALLING BELOW THE MINIMAL STANDARDS ASSURED BY THE DUE PROCESS CLAUSE A
STATE'S RELIANCE UPON OTHER METHODS WHICH, IF CONSISTENTLY ENFORCED,
WOULD BE EQUALLY EFFECTIVE.  WEIGHTY TESTIMONY AGAINST SUCH AN
INSISTENCE ON OUR OWN VIEW IS FURNISHED BY THE OPINION OF MR. JUSTICE
(THEN JUDGE) CARDOZO IN PEOPLE V. DEFORE, 242 N.Y. 13, 150 N.E. 585. 
FN2  WE CANNOT BRUSH ASIDE THE EXPERIENCE OF STATES WHICH DEEM THE
INCIDENCE OF SUCH CONDUCT BY THE POLICE TOO SLIGHT TO CALL FOR A
DETERRENT REMEDY NOT BY WAY OF DISCIPLINARY MEASURES BUT BY OVERRIDING
THE RELEVANT RULES OF EVIDENCE.  THERE ARE, MOREOVER, REASONS FOR
EXCLUDING EVIDENCE UNREASONABLY OBTAINED BY THE FEDERAL POLICE WHICH
ARE LESS COMPELLING IN THE CASE OF POLICE UNDER STATE OR LOCAL
AUTHORITY.  THE PUBLIC OPINION OF A COMMUNITY CAN FAR MORE EFFECTIVELY
BE EXERTED AGAINST OPPRESSIVE CONDUCT ON THE PART OF POLICE DIRECTLY
RESPONSIBLE TO THE COMMUNITY ITSELF THAN CAN LOCAL OPINION,
SPORADICALLY AROUSED, BE BROUGHT TO BEAR UPON REMOTE AUTHORITY
PERVASIVELY EXERTED THROUGHOUT THE COUNTRY. 

WE HOLD, THEREFORE, THAT IN A PROSECUTION IN A STATE COURT FOR A
STATE CRIME THE FOURTEENTH AMENDMENT DOES NOT FORBID THE ADMISSION OF
EVIDENCE OBTAINED BY AN UNREASONABLE SEARCH AND SEIZURE.  AND THOUGH WE
HAVE INTERPRETED THE FOURTH AMENDMENT TO FORBID THE ADMISSION OF SUCH
EVIDENCE, A DIFFERENT QUESTION WOULD BE PRESENTED IF CONGRESS UNDER ITS
LEGISLATIVE POWERS WERE TO PASS A STATUTE PURPORTING TO NEGATE THE
WEEKS DOCTRINE.  WE WOULD THEN BE FACED WITH THE PROBLEM OF THE RESPECT
TO BE ACCORDED THE LEGISLATIVE JUDGMENT ON AN ISSUE AS TO WHICH, IN
DEFAULT OF THAT JUDGMENT, WE HAVE BEEN FORCED TO DEPEND UPON OUR OWN. 
PROBLEMS OF A CONVERSE CHARACTER, ALSO NOT BEFORE US, WOULD BE
PRESENTED SHOULD CONGRESS UNDER SEC. 5 OF THE FOURTEENTH AMENDMENT
UNDERTAKE TO ENFORCE THE RIGHTS THERE GUARANTEED BY ATTEMPTING TO MAKE
THE WEEKS DOCTRINE BINDING UPON THE STATES.  AFFIRMED. 

                              APPENDIX.* 

*IN THE CASE OF JURISDICTIONS WHICH HAVE DECIDED MORE THAN ONE CASE
IN POINT, THE FOLLOWING TABLES CITE ONLY THE LEADING CASE. 

                             TABLE A.

            STATES WHICH OPPOSED THE WEEKS DOCTRINE BEFORE

THE WEEKS CASE HAD BEEN DECIDED. 

ALA.  SHIELDS V. STATE, 104 ALA. 35, 16 SO. 85. 

ARK.  STARCHMAN V. STATE, 62 ARK. 538, 36 S.W. 940. 

CONN.  STATE V. GRISWOLD, 67 CONN. 290, 34 A. 1046. 

GA.  WILLIAMS V. STATE, 100 GA. 511, 28 S.E. 624. 

IDAHO  STATE V. BOND, 12 IDAHO 424, 439, 86 P. 43, 47. 

ILL.  SIEBERT V. PEOPLE, 143 ILL. 571, 583, 32 N.E. 431, 434. 

KAN.  STATE V. MILLER, 63 KAN. 62, 64 P. 1033. 

ME.  SEE STATE V. GORHAM, 65 ME. 270, 272. 

MD.  LAWRENCE V. STATE, 103 MD. 17, 35, 63 A. 96, 103. 

MASS.  COMMONWEALTH V. DANA, 2 METC.  329. 

MICH.  PEOPLE V. ALDORFER, 164 MICH. 676, 130 N.W. 351. 

MINN.  STATE V. STRAIT, 94 MINN. 384, 102 N.W. 913. 

MO.  STATE V. POMEROY, 130 MO. 489, 32 S.W. 1002. 

MONT.  SEE STATE V.FULLER, 34 MONT. 12, 19, 85 P. 369, 373. 

NEB.  GEIGER V. STATE, 6 NEB. 545. 

N.H.  STATE V. FLYNN, 36 N.H. 64. 

N.Y.  PEOPLE V. ADAMS, 176 N.Y. 351, 68 N.E. 636. 

N.C.  STATE V. WALLACE, 162 N.C. 622, 78 S.E. 1. 

OKLA.  SILVA V. STATE, 6 OKLA. CR. 97, 116 P. 199. 

ORE.  STATE V. MCDANIEL, 39 ORE.  161, 169-70, 65 P. 520, 523. 

S.C.  STATE V. ATKINSON, 40 S.C. 363, 371, 18 S.E. 1021, 1024. 

S.D.  STATE V. MADISON, 23 S.D. 584, 591, 122 N.W. 647, 650. 

TENN.  COHN V. STATE, 120 TENN. 61, 109 S.W. 1149. 

VT.  STATE V. MATHERS, 64 VT. 101, 23 A. 590. 

WASH.  STATE V. ROYCE, 38 WASH. 111, 80 P. 268. 

W. VA.  SEE STATE V. EDWARDS, 51 W. VA. 220, 229, 41 S.E. 429, 432
33. 

         TABLE B.

             STATE WHICH HAD FORMULATED THE WEEKS DOCTRINE

                      BEFORE THE WEEKS DECISION. 

IOWA STATE V. SHERIDAN, 121 IOWA 164, 96 N.W. 730. 

                               TABLE C.                 STATES
WHICH HAVE PASSED ON THE WEEKS DOCTRINE

                  SINCE THE WEEKS CASE WAS DECIDED. 

EVERY STATE EXCEPT RHODE ISLAND.  BUT SEE STATE V. LORENZO, 72 R.I.
175, 48 A.2D 407(HOLDING THAT DEFENDANT HAD CONSENTED TO THE SEARCH,
BUT THAT, EVEN IF HE HAD NOT AND EVEN IF THE FEDERAL RULE APPLIED, THE
EVIDENCE WAS ADMISSIBLE BECAUSE NO TIMELY MOTION TO SUPPRESS HAD BEEN
MADE). 

  TABLE D. 

     STATES WHICH PASSED ON THE WEEKS DOCTRINE FOR THE FIRST TIME

        AFTER THE WEEKS DECISION AND IN SO DOING FOLLOWED IT. 
FLA.  ATZ V. ANDREWS, 84 FLA. 43, 94 SO. 329. 

IND.  FLUM V. STATE, 193 IND. 585, 141 N.E. 353. 

KY.  YOUMAN V. COMMONWEALTH, 189 KY. 152, 224 S.W. 860. 

MISS.  TUCKER V. STATE, 128 MISS.  211, 90 SO. 845. 

WIS.  HOYER V. STATE, 180 WIS. 407, 193 N.W. 89. 

WYO.  STATE V. GEORGE, 32 WYO. 223, 231 P. 683. 

      TABLE E. 

     STATES WHICH PASSED ON THE WEEKS DOCTRINE FOR THE FIRST TIME

        AFTER THE WEEKS DECISION AND IN SO DOING REJECTED IT. 

ARIZ.  ARGETAKIS V. STATE, 24 ARIZ. 599, 212 P. 372. 

CALIF.  PEOPLE V. MAYEN, 188 CALIF. 237, 205 P. 435(ADOPTING THE
GENERAL RULE BUT DISTINGUISHING THE CASES THEN DECIDED BY THIS COURT ON
THE GROUND THAT THEY APPLY ONLY WHEN A TIMELY MOTION FOR RETURN OF THE
PROPERTY SEIZED HAS BEEN MADE). 

COLO.  MASSANTONIO V. PEOPLE, 77 COLO. 392, 236 P. 1019. 

DEL.  STATE V. CHUCHOLA, 32 DEL. 133, 120 A. 212(DISTINGUISHING THIS
COURT'S DECISIONS). 

LA.  STATE V. FLECKINGER, 152 LA. 337, 93 SO. 115.  THE
CONSTITUTIONAL CONVENTION OF 1921 REFUSED TO ADOPT AN AMENDMENT
INCORPORATING THE FEDERAL RULE.  SEE STATE V. EDDINS, 161 LA. 240, 108
SO. 468. 

NEV.  STATE V. CHIN GIM, 47 NEV. 431, 224 P. 798. 

N.J.  STATE V. BLACK, 5 N.J. MISC. 48, 135 A. 685. 

N.M.  STATE V. DILLON, 34 N.M. 366, 281 P. 474. 

N.D.  STATE V. FAHN, 53 N.D. 203, 205 N.W. 67. 

OHIO  STATE V. LINDWAY, 131 OHIO ST. 166, 2 N.E.2D 490. 

PA.  COMMONWEALTH V. DABBIERIO, 290 PA. 174, 138 A. 679. 

TEX.  WELCHEK V. STATE, 93 TEX. CR. REP. 271, 247 S.W. 524.  IN 1925
A STATUTE CHANGED THE RULE BY PROVIDING THAT "NO EVIDENCE OBTAINED BY
AN OFFICER OR OTHER PERSON IN VIOLATION OF ANY PROVISIONS OF THE
CONSTITUTION OR LAWS OF THE STATE OF TEXAS, OR OF THE CONSTITUTION OF
THE UNITED STATES OF AMERICA, SHALL BE ADMITTED IN EVIDENCE AGAINST THE
ACCUSED ON THE TRIAL OF ANY CRIMINAL CASE."  TEXAS LAWS 1925, C. 49, AS
AMENDED, 2 VERNON'S TEX. STAT., 1948(CODE OF CRIM. PROC.), ART. 727A. 

UTAH  STATE V. AIME, 62 UTAH 476, 220 P. 704. 

VA.  HALL V. COMMONWEALTH, 138 VA. 727, 121 S.E. 154. 

                   TABLE F.

          STATES WHICH, AFTER THE WEEKS DECISION, OVERRULED OR

           DISTINGUISHED PRIOR CONTRARY DECISIONS. 

IDAHO  IDAHO EXPRESSLY REFUSED TO FOLLOW THE WEEKS DECISION IN STATE
V. MYERS, 36 IDAHO 396, 211 P. 440, BUT REPUDIATED THE MYERS CASE AND
ADOPTED THE FEDERAL RULE IN STATE V. ARREGUI, 44 IDAHO 43, 254 P. 788. 

ILL.  AFTER TWO CASES FOLLOWING THE FORMER STATE RULE, ILLINOIS
ADOPTED THE FEDERAL RULE IN PEOPLE V. CASTREE, 311 ILL. 392, 143 N.E.
112. 

MICH.  PEOPLE V. MARXHAUSEN, 204 MICH. 559, 171 N.W.
557(DISTINGUISHING EARLIER CASES ON THE GROUND THAT IN THEM NO
PRELIMINARY MOTION TO SUPPRESS HAD BEEN MADE). 

MO.  STATE V. GRAHAM, 295 MO. 695, 247 S.W. 194, SUPPORTED THE OLD
RULE IN A DICTUM, BUT THE FEDERAL RULE WAS ADOPTED IN STATE V. OWENS,
302 MO. 348, 259 S.W. 100(DISTINGUISHING EARLIER CASES ON THE GROUND
THAT IN THEM NO PRELIMINARY MOTION TO DISMISS HAD BEEN MADE). 

MONT.  STATE EX REL. KING V. DISTRICT COURT, 70 MONT. 191, 224 P.
862. 

OKLA. GORE V. STATE, 24 OKLA. CR. 394, 218 P. 545. 

S.D.  STATE V. GOODER, 57 S.D. 619, 234 N.W. 610.  BUT CF. S.D. LAWS
1935, C. 96, NOW S.D. CODE SEC. 34.1102(1939), AMENDING REV. CODE 1919,
SEC. 4606(ALL EVIDENCE ADMISSIBLE UNDER A VALID SEARCH WARRANT IS
ADMISSIBLE NOTWITHSTANDING DEFECTS IN THE ISSUANCE OF THE WARRANT). 

TENN.  HUGHES V. STATE, 145 TENN. 544, 238 S.W. 588(DISTINGUISHING
COHN V. STATE, SUPRA, TABLE A). 

WASH.  STATE V. GIBBONS, 118 WASH. 171, 203 P. 390. 

W. VA.  STATE V. ANDREWS, 91 W. VA. 720, 114 S.E. 257(DISTINGUISHING
EARLIER CASES). 

                               TABLE G.

    STATES WHICH, AFTER THE WEEKS DECISION, REVIEWED PRIOR CONTRARY

        DECISIONS AND IN SO DOING ADHERED TO THOSE DECISIONS. 

ALA.  BANKS V. STATE, 207 ALA. 179, 93 SO. 293. 

ARK.  BENSON V. STATE, 149 ARK. 633, 233 S.W. 758. 

CONN.  STATE V. REYNOLDS, 101 CONN. 224, 125 A. 636. 

GA.  JACKSON V. STATE, 156 GA. 647, 119 S.E. 525. 

KAN.  STATE V. JOHNSON, 116 KAN. 58, 226 P. 245. 

ME.  STATE V. SCHOPPE, 113 ME. 10, 16, 92 A. 867, 869(ALTERNATIVE
HOLDING, NOT NOTICING WEEKS). 

MD.  MEISINGER V. STATE, 155 MD. 195, 141 A. 536, 142 A. 190.  BUT
CF. MD. LAWS 1929, C. 194, AS AMENDED, MD. CODE ANN., ART. 35, SEC.
5(1947 SUPP.)(IN TRIAL OF MISDEMEANORS, EVIDENCE OBTAINED BY ILLEGAL
SEARCH AND SEIZURE IS INADMISSIBLE). 

MASS.  COMMONWEALTH V. WILKINS, 243 MASS. 356, 138 N.E. 11. 

MINN. STATE V. PLUTH, 157 MINN. 145, 195 N.W. 789. 

NEB.  BILLINGS V. STATE, 109 NEB. 596, 191 N.W. 721. 

N.H.  STATE V. AGALOS, 79 N.H. 241, 242, 107 A. 314, 315(NOT NOTICING
WEEKS). 

N.Y.  PEOPLE V. DEFORE, 242 N.Y. 13, 150 N.E. 585; PEOPLE V.
RICHTER'S JEWELERS, 291 N.Y. 161, 169, 51 N.E.2D 690, 693(HOLDING THAT
ADOPTION OF AMENDMENT TO STATE CONSTITUTION IN SAME LANGUAGE AS CIVIL
RIGHTS LAW CONSTRUED IN THE DEFORE CASE IS NOT OCCASION FOR CHANGING
INTERPRETATION, ESPECIALLY SINCE PROCEEDINGS OF THE CONVENTION WHICH
FRAMED THE AMENDMENT SHOW THAT NO CHANGE WAS INTENDED). 

N.C.  STATE V. SIMMONS, 183 N.C. 684, 110 S.E. 591(DISTINGUISHING
BETWEEN EVIDENTIARY ARTICLES AND CORPUS DELICTI). 

ORE.  SEE STATE V. FOLKES, 174 ORE.  568, 588-89, 150 P.2D 17, 25. 
BUT SEE STATE V. LAUNDY, 103 ORE.  443, 493-95, 204 P. 958, 974-75. 

S.C.  AFTER GRANTING A MOTION TO RETURN ILLEGALLY SEIZED PROPERTY IN
BLACKSBURG V. BEAM, 104 S.C. 146, 88 S.E. 441, SOUTH CAROLINA
REAFFIRMED ITS AGREEMENT WITH THE GENERAL RULE IN STATE V. GREEN, 121
S.C. 230, 114 S.E. 317. 

VT.  STATE V. STACY, 104 VT. 379, 401, 160 A. 257, 266. 

                               TABLE H.

           STATE WHICH HAS REPUDIATED ITS PRIOR FORMULATION

          OF THE WEEKS DOCTRINE. 

IOWA  STATE V. ROWLEY, 197 IOWA 977, 195 N.W. 881(WITHDRAWING EARLIER
OPINION IN 187 N.W. 7). 

                               TABLE I.

    SUMMARY OF PRESENT POSITION OF STATES WHICH HAVE

               PASSED ON THE WEEKS DOCTRINE. 

(A)  STATES THAT REJECT WEEKS: 

ALA., ARIZ., ARK., CALIF., COLO., CONN., DEL., GA., IOWA, KAN., LA.,
ME., MD., MASS., MINN., NEB., NEV., N.H., N.J., N.M., N.Y., N.C., N.D.,
OHIO, ORE., PA., S.C., TEXAS, UTAH, VT., VA. 

(B)  STATES THAT ARE IN AGREEMENT WITH WEEKS: 

FLA., IDAHO, ILL., IND., KY., MICH., MISS., MO., MONT., OKLA., S.D.,
TENN., WASH., W. VA., WIS., WYO.

                     TABLE J.

   JURISDICTIONS OF THE UNITED KINGDOM AND THE BRITISH COMMONWEALTH

OF NATIONS WHICH HAVE HELD ADMISSIBLE

           EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE. 

AUSTRALIA  MILLER V. NOBLET, (1927) S.A.S.R. 385. 

CANADA 

ALTA.  REX V. NELSON, (1922) 2 W.W.R. 381, 69 D.L.R. 180. 

MAN.  REX V. DUROUSSEL, 41 MAN.  15, (1933) 2 D.L.R. 446. 

ONT.  REGINA V. DOYLE, 12 ONT.  347. 

SASK.  REX V. KOSTACHUK, 24 SASK.  485, 54 CAN.  C.C. 189. 

ENGLAND  SEE ELIAS V. PASMORE, (1934) 2 K.B. 164. 

INDIA 

ALL.  ALI AHMAD KHAN V. EMPEROR, 81 I.C. 615(1). 

CAL.  BALDEO BIN V. EMPEROR, 142 I.C. 639. 

RANG.  CHWA HUM HTIVE V. EMPEROR, 143 I.C. 824. 

SCOTLAND  SEE HODGSON V. MACPHERSON, (1913) S.C. (J.)  68, 73. 

FN1  THE COMMON LAW PROVIDES ACTIONS FOR DAMAGES AGAINST THE
SEARCHING OFFICER, E.G., ENTICK V. CARRINGTON, 2 WILS.  275, 19 HOW. 
ST. TR. 1029; GRUMON V. RAYMOND, 1 CONN. 40; SANDFORD V. NICHOLS, 13
MASS. 286; HALSTED V. BRICE, 13 MO. 171; HUSSEY V. DAVIS, 58 N.H. 317;
REED V. LUCAS, 42 TEXAS 529; AGAINST ONE WHO PROCURES THE ISSUANCE OF A
WARRANT MALICIOUSLY AND WITHOUT PROBABLE CAUSE, E.G., GULSBY V.
LOUISVILLE & N.R. CO., 167 ALA. 122, 52 SO. 392; WHITSON V. MAY, 71
IND. 269; KREHBIEL V. HENKLE, 152 IOWA 604, 129 N.W. 945; OLSON V.
TVETE, 46 MINN. 225, 48 N.W. 914; BOEGER V. LANGENBERG, 97 MO. 390, 11
S.W. 223; DOANE V. ANDERSON, 60 HUN 586, 15 N.Y. 459; SHALL V.
MINNEAPOLIS, ST. P. & S.S.M.R. CO., 156 WIS. 195, 145 N.W. 649; AGAINST
A MAGISTRATE WHO HAS ACTED WITHOUT JURISDICTION IN ISSUING A WARRANT,
E.G., WILLIAMS V. KOZAK, 280 F. 373(C.A.4TH CIR.); GRUMON V. RAYMOND, 1
CONN. 40; KENNEDY V. TERRILL, HARDIN (KY.)  490; SHAW V. MOON, 117
ORE.  558, 245 P. 318; AND AGAINST PERSONS ASSISTING IN THE EXECUTION
OF AN ILLEGAL SEARCH, E.G., HEBREW V. PULIS, 73 N.J.L. 621, 625, 64 A.
121, 122; CARTWRIGHT V. CANODE, 138 S.W. 792(TEX.  CIV.  APP.), AFF'D,
106 TEXAS 502, 171 S.W. 696.  ONE MAY ALSO WITHOUT LIABILITY USE FORCE
TO RESIST AN UNLAWFUL SEARCH.  E.G., COMMONWEALTH V. MARTIN, 105 MASS.
178; STATE V. MANN, 27 N.C. 45. 

STATUTORY SANCTIONS IN THE MAIN PROVIDE FOR THE PUNISHMENT OF ONE
MALICIOUSLY PROCURING A SEARCH WARRANT OR WILLFULLY EXCEEDING HIS
AUTHORITY IN EXERCISING IT.  E.G., 18 U.S.C. (1946 ED.)  SECS. 630,
631; ALA. CODE, TIT. 15, SEC. 99(1940); ARIZ. CODE ANN. SEC. 44
3513(1939); FLA. STAT. ANN. SECS. 933.16, 933.17(1944); IOWA CODE SECS.
751.38, 751.39(1946); MONT. REV. CODE ANN. SECS. 10948, 10952(1935);
NEV. COMP. LAWS SECS. 10425, 10426(1929); N.Y. CRIM. CODE SECS. 811,
812, N.Y. PENAL LAW SECS. 1786, 1847; N.D. REV. CODE SECS. 12-1707, 12
1708(1943); OKLA. STAT. ANN., TIT. 21, SECS. 536, 585, TIT. 22, SECS.
1239, 1240(1937); ORE.  COMP.  LAWS ANN. SEC. 26-1717(1940); S.D. CODE
SECS. 13.1213, 13.1234, 34.9904, 34.9905(1939); TENN. CODE ANN. SEC.
11905(1934).  SOME STATUTES MORE BROADLY PENALIZE UNLAWFUL SEARCHES. 
E.G., 18 U.S.C. (1946 ED.)  SEC.  53A; IDAHO CODE ANN. SECS. 17-1004,
17-1024(1932); MINN. STAT. SECS. 613.54, 621.17(1945); VA. CODE ANN.
SEC. 4822D (MICHIE, 1942); WASH. REV. STAT. ANN. SECS. 2240-1, 2240-2. 
VIRGINIA ALSO MAKES PUNISHABLE ONE WHO ISSUES A GENERAL SEARCH WARRANT
OR A WARRANT UNSUPPORTED BY AFFIDAVIT.  VA. CODE ANN. SEC. 4822E
(MICHIE, 1942).  A FEW STATES HAVE PROVIDED STATUTORY CIVIL REMEDIES. 
SEE, E.G., GA. CODE ANN. SEC. 27-301(1935); ILL. REV. STAT., C. 38,
SEC. 698(SMITH-HURD, 1935); MISS.  CODE ANN. SEC. 1592(1942).  AND IN
ONE STATE, MISUSE OF A SEARCH WARRANT MAY BE AN ABUSE OF PROCESS
PUNISHABLE AS CONTEMPT OF COURT.  SEE MICH. STAT. ANN. SEC.
27.511(1938). 

FN2  "WE HOLD, THEN, WITH THE DEFENDANT THAT THE EVIDENCE AGAINST HIM
WAS THE OUTCOME OF A TRESPASS.  THE OFFICER MIGHT HAVE BEEN RESISTED,
OR SUED FOR DAMAGES, OR EVEN PROSECUTED FOR OPPRESSION (PENAL LAW,
SECS. 1846, 1847).  HE WAS SUBJECT TO REMOVAL OR OTHER DISCIPLINE AT
THE HANDS OF HIS SUPERIORS.  THESE CONSEQUENCES ARE UNDISPUTED.  THE
DEFENDANT WOULD ADD ANOTHER.  WE MUST DETERMINE WHETHER EVIDENCE OF
CRIMINALITY, PROCURED BY AN ACT OF TRESPASS, IS TO BE REJECTED AS
INCOMPETENT FOR THE MISCONDUCT OF THE TRESPASSER.  ... 

"THOSE JUDGMENTS (WEEKS V. UNITED STATES AND CASES WHICH FOLLOWED IT)
DO NOT BIND US, FOR THEY CONSTRUE PROVISIONS OF THE FEDERAL
CONSTITUTION, THE FOURTH AND FIFTH AMENDMENTS, NOT APPLICABLE TO THE
STATES.  EVEN THOUGH NOT BINDING, THEY MERIT OUR ATTENTIVE SCRUTINY. 
... 

"IN SO HOLDING (I.E., THAT EVIDENCE PROCURED BY UNLAWFUL SEARCH IS
NOT INCOMPETENT), WE ARE NOT UNMINDFUL OF THE ARGUMENT THAT UNLESS THE
EVIDENCE IS EXCLUDED, THE STATUTE BECOMES A FORM AND ITS PROTECTION AN
ILLUSION.  THIS HAS A STRANGE SOUND WHEN THE IMMUNITY IS VIEWED IN THE
LIGHT OF ITS ORIGIN AND HISTORY.  THE RULE NOW EMBODIED IN THE STATUTE
WAS RECEIVED INTO ENGLISH LAW AS THE OUTCOME OF THE PROSECUTION OF
WILKES AND ENTICK  ...  WILKES SUED THE MESSENGERS WHO HAD RANSACKED
HIS PAPERS, AND RECOVERED A VERDICT OF $*4,000 AGAINST ONE AND $*1,000
AGAINST THE OTHER.  ENTICK, TOO, HAD A SUBSTANTIAL VERDICT  ...  WE DO
NOT KNOW WHETHER THE PUBLIC, REPRESENTED BY ITS JURIES, IS TO-DAY MORE
INDIFFERENT TO ITS LIBERTIES THAN IT WAS WHEN THE IMMUNITY WAS BORN. 
IF SO, THE CHANGE OF SENTIMENT WITHOUT MORE DOES NOT WORK A CHANGE OF
REMEDY.  OTHER SANCTIONS, PENAL AND DISCIPLINARY, SUPPLEMENTING THE
RIGHT TO DAMAGES, HAVE ALREADY BEEN ENUMERATED.  NO DOUBT THE
PROTECTION OF THE STATUTE WOULD BE GREATER FROM THE POINT OF VIEW OF
THE INDIVIDUAL WHOSE PRIVACY HAD BEEN INVADED IF THE GOVERNMENT WERE
REQUIRED TO IGNORE WHAT IT HAD LEARNED THROUGH THE INVASION.  THE
QUESTION IS WHETHER PROTECTION FOR THE INDIVIDUAL WOULD NOT BE GAINED
AT A DISPROPORTIONATE LOSS OF PROTECTION FOR SOCIETY.  ON THE ONE SIDE
IS THE SOCIAL NEED THAT CRIME SHALL BE REPRESSED.  ON THE OTHER, THE
SOCIAL NEED THAT LAW SHALL NOT BE FLOUTED BY THE INSOLENCE OF OFFICE. 
THERE ARE DANGERS IN ANY CHOICE.  THE RULE OF THE ADAMS CASE (176 N.Y.
351, 68 N.E. 636) STRIKES A BALANCE BETWEEN OPPOSING INTERESTS."  242
N.Y. AT 19, 20, 24-25, 150 N.E. AT 586-87, 587, 588-89. 

MR. JUSTICE BLACK, CONCURRING. 

IN THIS CASE PETITIONER WAS CONVICTED OF A CRIME IN A STATE COURT ON
EVIDENCE OBTAINED BY A SEARCH AND SEIZURE CONDUCTED IN A MANNER THAT
THIS COURT HAS HELD "UNREASONABLE" AND THEREFORE IN VIOLATION OF THE
FOURTH AMENDMENT.  AND UNDER A RULE OF EVIDENCE ADOPTED BY THIS COURT
EVIDENCE SO OBTAINED BY FEDERAL OFFICERS CANNOT BE USED AGAINST
DEFENDANTS IN FEDERAL COURTS.  FOR REASONS STATED IN MY DISSENTING
OPINION IN ADAMSON V. CALIFORNIA, 332 U.S. 46, 68, I AGREE WITH THE
CONCLUSION OF THE COURT THAT THE FOURTH AMENDMENT'S PROHIBITION OF
"UNREASONABLE SEARCHES AND SEIZURES" IS ENFORCEABLE AGAINST THE
STATES.  CONSEQUENTLY, I SHOULD BE FOR REVERSAL OF THIS CASE IF I
THOUGHT THE FOURTH AMENDMENT NOT ONLY PROHIBITED "UNREASONABLE SEARCHES
AND SEIZURES," BUT ALSO, OF ITSELF, BARRED THE USE OF EVIDENCE SO
UNLAWFULLY OBTAINED.  BUT I AGREE WITH WHAT APPEARS TO BE A PLAIN
IMPLICATION OF THE COURT'S OPINION THAT THE FEDERAL EXCLUSIONARY RULE
IS NOT A COMMAND OF THE FOURTH AMENDMENT BUT IS A JUDICIALLY CREATED
RULE OF EVIDENCE WHICH CONGRESS MIGHT NEGATE.  SEE MCNABB V. UNITED
STATES, 318 U.S. 332.  THIS LEADS ME TO CONCUR IN THE COURT'S JUDGMENT
OF AFFIRMANCE. 

IT IS NOT AMISS TO REPEAT MY BELIEF THAT THE FOURTEENTH AMENDMENT WAS
INTENDED TO MAKE THE FOURTH AMENDMENT IN ITS ENTIRETY APPLICABLE TO THE
STATES.  THE FOURTH AMENDMENT WAS DESIGNED TO PROTECT PEOPLE AGAINST
UNRESTRAINED SEARCHES AND SEIZURES BY SHERIFFS, POLICEMEN AND OTHER LAW
ENFORCEMENT OFFICERS.  SUCH PROTECTION IS AN ESSENTIAL IN A FREE
SOCIETY.  AND I AM UNABLE TO AGREE THAT THE PROTECTION OF PEOPLE FROM
OVER-ZEALOUS OR RUTHLESS STATE OFFICERS IS ANY LESS ESSENTIAL IN A
COUNTRY OF "ORDERED LIBERTY" THAN IS THE PROTECTION OF PEOPLE FROM OVER
ZEALOUS OR RUTHLESS FEDERAL OFFICERS.  CERTAINLY THERE ARE FAR MORE
STATE THAN FEDERAL ENFORCEMENT OFFICERS AND THEIR ACTIVITIES, UP TO
NOW, HAVE MORE FREQUENTLY AND CLOSELY TOUCHED THE INTIMATE DAILY LIVES
OF PEOPLE THAN HAVE THE ACTIVITIES OF FEDERAL OFFICERS.  A STATE
OFFICER'S "KNOCK AT THE DOOR ...  AS A PRELUDE TO A SEARCH, WITHOUT
AUTHORITY OF LAW," MAY BE, AS OUR EXPERIENCE SHOWS, JUST AS OMINOUS TO
"ORDERED LIBERTY" AS THOUGH THE KNOCK WERE MADE BY A FEDERAL OFFICER. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I BELIEVE FOR THE REASONS STATED BY MR. JUSTICE BLACK IN HIS DISSENT
IN ADAMSON V. CALIFORNIA, 332 U.S. 46, 68, THAT THE FOURTH AMENDMENT IS
APPLICABLE TO THE STATES.  I AGREE WITH MR. JUSTICE MURPHY THAT THE
EVIDENCE OBTAINED IN VIOLATION OF IT MUST BE EXCLUDED IN STATE
PROSECUTIONS AS WELL AS IN FEDERAL PROSECUTIONS, SINCE IN ABSENCE OF
THAT RULE OF EVIDENCE THE AMENDMENT WOULD HAVE NO EFFECTIVE SANCTION. 
I ALSO AGREE WITH HIM THAT UNDER THAT TEST THIS EVIDENCE WAS IMPROPERLY
ADMITTED AND THAT THE JUDGMENTS OF CONVICTION MUST BE REVERSED.    MR.
JUSTICE MURPHY, WITH WHOM MR. JUSTICE RUTLEDGE JOINS, DISSENTING. 

IT IS DISHEARTENING TO FIND SO MUCH THAT IS RIGHT IN AN OPINION WHICH
SEEMS TO ME SO FUNDAMENTALLY WRONG.  OF COURSE I AGREE WITH THE COURT
THAT THE FOURTEENTH AMENDMENT PROHIBITS ACTIVITIES WHICH ARE PROSCRIBED
BY THE SEARCH AND SEIZURE CLAUSE OF THE FOURTH AMENDMENT.  SEE MY
DISSENTING VIEWS, AND THOSE OF MR. JUSTICE BLACK, IN ADAMSON V.
CALIFORNIA, 332 U.S. 46, 68, 123.  QUITE APART FROM THE BLANKET
APPLICATION OF THE BILL OF RIGHTS TO THE STATES, A DEVOTEE OF DEMOCRACY
WOULD ILL SUIT HIS NAME WERE HE TO SUGGEST THAT HIS HOME'S PROTECTION
AGAINST UNLICENSED GOVERNMENTAL INVASION WAS NOT "OF THE VERY ESSENCE
OF A SCHEME OF ORDERED LIBERTY."  PALKO V. CONNECTICUT, 302 U.S. 319,
325.  IT IS DIFFICULT FOR ME TO UNDERSTAND HOW THE COURT CAN GO THIS
FAR AND YET BE UNWILLING TO MAKE THE STEP WHICH CAN GIVE SOME MEANING
TO THE PRONOUNCEMENTS IT UTTERS. 

IMAGINATION AND ZEAL MAY INVENT A DOZEN METHODS TO GIVE CONTENT TO
THE COMMANDS OF THE FOURTH AMENDMENT.  BUT THIS COURT IS LIMITED TO THE
REMEDIES CURRENTLY AVAILABLE.  IT CANNOT LEGISLATE THE IDEAL SYSTEM. 
IF WE WOULD ATTEMPT THE ENFORCEMENT OF THE SEARCH AND SEIZURE CLAUSE IN
THE ORDINARY CASE TODAY, WE ARE LIMITED TO THREE DEVICES:  JUDICIAL
EXCLUSION OF THE ILLEGALLY OBTAINED EVIDENCE; CRIMINAL PROSECUTION OF
VIOLATORS; AND CIVIL ACTION AGAINST VIOLATORS IN THE ACTION OF
TRESPASS. 

ALTERNATIVES ARE DECEPTIVE.  THEIR VERY STATEMENT CONVEYS THE
IMPRESSION THAT ONE POSSIBILITY IS AS EFFECTIVE AS THE NEXT.  IN THIS
CASE THEIR STATEMENT IS BLINDING.  FOR THERE IS BUT ONE ALTERNATIVE TO
THE RULE OF EXCLUSION.  THAT IS NO SANCTION AT ALL. 

THIS HAS BEEN PERFECTLY CLEAR SINCE 1914, WHEN A UNANIMOUS COURT
DECIDED WEEKS V. UNITED STATES, 232 U.S. 383, 393.  "IF LETTERS AND
PRIVATE DOCUMENTS CAN THUS BE SEIZED AND HELD AND USED IN EVIDENCE
AGAINST A CITIZEN ACCUSED OF AN OFFENSE," WE SAID, "THE PROTECTION OF
THE FOURTH AMENDMENT DECLARING HIS RIGHT TO BE SECURE AGAINST SUCH
SEARCHES AND SEIZURES IS OF NO VALUE, AND, SO FAR AS THOSE THUS PLACED
ARE CONCERNED, MIGHT AS WELL BE STRICKEN FROM THE CONSTITUTION."  "IT
REDUCES THE FOURTH AMENDMENT TO A FORM OF WORDS."  HOLMES, J., FOR THE
COURT, IN SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385, 392. 

TODAY THE COURT WIPES THOSE STATEMENTS FROM THE BOOKS WITH ITS BLAND
CITATION OF "OTHER REMEDIES."  LITTLE NEED BE SAID CONCERNING THE
POSSIBILITIES OF CRIMINAL PROSECUTION.  SELF-SCRUTINY IS A LOFTY IDEAL,
BUT ITS EXALTATION REACHES NEW HEIGHTS IF WE EXPECT A DISTRICT ATTORNEY
TO PROSECUTE HIMSELF OR HIS ASSOCIATES FOR WELL-MEANING VIOLATIONS OF
THE SEARCH AND SEIZURE CLAUSE DURING A RAID THE DISTRICT ATTORNEY OR
HIS ASSOCIATES HAVE ORDERED.  FN1 BUT THERE IS AN APPEALING RING IN
ANOTHER ALTERNATIVE.  A TRESPASS ACTION FOR DAMAGES IS A VENERABLE
MEANS OF SECURING REPARATION FOR UNAUTHORIZED INVASION OF THE HOME. 
WHY NOT PUT THE OLD WRIT TO A NEW USE?  WHEN THE COURT CITES CASES
PERMITTING THE ACTION, THE REMEDY SEEMS COMPLETE. 

BUT WHAT AN ILLUSORY REMEDY THIS IS, IF BY "REMEDY" WE MEAN A
POSITIVE DETERRENT TO POLICE AND PROSECUTORS TEMPTED TO VIOLATE THE
FOURTH AMENDMENT.  THE APPEALING RING SOFTENS WHEN WE RECALL THAT IN A
TRESPASS ACTION THE MEASURE OF DAMAGES IS SIMPLY THE EXTENT OF THE
INJURY TO PHYSICAL PROPERTY.  IF THE OFFICER SEARCHES WITH CARE, HE CAN
AVOID ALL BUT NOMINAL DAMAGES - A PENNY, OR A DOLLAR.  ARE PUNITIVE
DAMAGES POSSIBLE?  PERHAPS.  BUT A FEW STATES PERMIT NONE, WHATEVER THE
CIRCUMSTANCES N2.  IN THOSE THAT DO, THE PLAINTIFF MUST SHOW THE REAL
ILL WILL OR MALICE OF THE DEFENDANT,  FN3  AND SURELY IT IS NOT
UNREASONABLE TO ASSUME THAT ONE IN HONEST PURSUIT OF CRIME BEARS NO
MALICE TOWARD THE SEARCH VICTIM.  IF THAT BURDEN IS CARRIED, RECOVERY
MAY YET BE DEFEATED BY THE RULE THAT THERE MUST BE PHYSICAL DAMAGES
BEFORE PUNITIVE DAMAGES MAY BE AWARDED.  FN4  IN ADDITION, SOME STATES
LIMIT PUNITIVE DAMAGES TO THE ACTUAL EXPENSES OF LITIGATION.  SEE 61
HARV. L. REV. 113, 119-120.  OTHERS DEMAND SOME ARBITRARY RATIO BETWEEN
ACTUAL AND PUNITIVE DAMAGES BEFORE A VERDICT MAY STAND.  SEE MORRIS,
PUNITIVE DAMAGES IN TORT CASES, 44 HARV. L. REV. 1173, 1180-1181.  EVEN
ASSUMING THE ILL WILL OF THE OFFICER, HIS REASONABLE GROUNDS FOR BELIEF
THAT THE HOME HE SEARCHED HARBORED EVIDENCE OF CRIME IS ADMISSIBLE IN
MITIGATION OF PUNITIVE DAMAGES.  GAMBLE V. KEYES, 35 S.D. 644, 153 N.W.
888; SIMPSON V. MCCAFFREY, 13 OHIO 508.  THE BAD REPUTATION OF THE
PLAINTIFF IS LIKEWISE ADMISSIBLE.  BANFILL V. BYRD, 122 MISS.  288, 84
SO. 227.  IF THE EVIDENCE SEIZED WAS ACTUALLY USED AT A TRIAL, THAT
FACT HAS BEEN HELD A COMPLETE JUSTIFICATION OF THE SEARCH, AND A
DEFENSE AGAINST THE TRESPASS ACTION.  ELIAS V. PASMORE (1934) 2 K.B.
164.  AND EVEN IF THE PLAINTIFF HURDLES ALL THESE OBSTACLES, AND GAINS
A SUBSTANTIAL VERDICT, THE INDIVIDUAL OFFICER'S FINANCES MAY WELL MAKE
THE JUDGMENT USELESS - FOR THE MUNICIPALITY, OF COURSE, IS NOT LIABLE
WITHOUT ITS CONSENT.  IS IT SURPRISING THAT THERE IS SO LITTLE IN THE
BOOKS CONCERNING TRESPASS ACTIONS FOR VIOLATION OF THE SEARCH AND
SEIZURE CLAUSE? 

THE CONCLUSION IS INESCAPABLE THAT BUT ONE REMEDY EXISTS TO DETER
VIOLATIONS OF THE SEARCH AND SEIZURE CLAUSE.  THAT IS THE RULE WHICH
EXCLUDES ILLEGALLY OBTAINED EVIDENCE.  ONLY BY EXCLUSION CAN WE IMPRESS
UPON THE ZEALOUS PROSECUTOR THAT VIOLATION OF THE CONSTITUTION WILL DO
HIM NO GOOD.  AND ONLY WHEN THAT POINT IS DRIVEN HOME CAN THE
PROSECUTOR BE EXPECTED TO EMPHASIZE THE IMPORTANCE OF OBSERVING
CONSTITUTIONAL DEMANDS IN HIS INSTRUCTIONS TO THE POLICE. 

IF PROOF OF THE EFFICACY OF THE FEDERAL RULE WERE NEEDED, THERE IS
TESTIMONY IN ABUNDANCE IN THE RECRUIT TRAINING PROGRAMS AND IN-SERVICE
COURSES PROVIDED THE POLICE IN STATES WHICH FOLLOW THE FEDERAL RULE. 
FN5  ST. LOUIS, FOR EXAMPLE, DEMANDS EXTENSIVE TRAINING IN THE RULES OF
SEARCH AND SEIZURE, WITH EMPHASIS UPON THE EASE WITH WHICH A CASE MAY
COLLAPSE IF IT DEPENDS UPON EVIDENCE OBTAINED UNLAWFULLY.  CURRENT
COURT DECISIONS ARE DIGESTED AND READ AT ROLL CALLS.  THE SAME GENERAL
PATTERN PREVAILS IN WASHINGTON, D.C..  FN6  IN DALLAS, OFFICERS ARE
THOROUGHLY BRIEFED AND INSTRUCTED THAT "THE COURTS WILL FOLLOW THE
RULES VERY CLOSELY AND WILL DETECT ANY FRAUDS."  FN7 IN MILWAUKEE, A
STOUT VOLUME ON THE LAW OF ARREST AND SEARCH AND SEIZURE IS MADE THE
BASIS OF EXTENDED INSTRUCTION.  FN8  OFFICER PREPARATION IN THE
APPLICABLE RULES IN JACKSON, MISSISSIPPI, HAS INCLUDED THE LECTURES OF
AN ASSOCIATE JUSTICE OF THE MISSISSIPPI SUPREME COURT.  THE
INSTRUCTIONS ON EVIDENCE AND SEARCH AND SEIZURE GIVEN TO TRAINEES IN
SAN ANTONIO CAREFULLY NOTE THE RULE OF EXCLUSION IN TEXAS, AND CLOSE
WITH THIS STATEMENT:  "EVERY POLICE OFFICER SHOULD KNOW THE LAWS AND
THE RULES OF EVIDENCE.  UPON KNOWLEDGE OF THESE FACTS DETERMINES
WHETHER THE  ... DEFENDANT WILL BE CONVICTED OR ACQUITTED.  ...  WHEN
YOU INVESTIGATE A CASE  ...  REMEMBER THROUGHOUT YOUR INVESTIGATION
THAT ONLY ADMISSIBLE EVIDENCE CAN BE USED." 

BUT IN NEW YORK CITY, WE ARE INFORMED SIMPLY THAT "COPIES OF THE
STATE PENAL LAW AND CODE OF CRIMINAL PROCEDURE" ARE GIVEN TO OFFICERS,
AND THAT THEY ARE "KEPT ADVISED" THAT ILLEGALLY OBTAINED EVIDENCE MAY
BE ADMITTED IN NEW YORK COURTS.  IN BALTIMORE, A "DIGEST OF LAWS" IS
DISTRIBUTED, AND IT IS MADE CLEAR THAT THE STATUTORY SECTION EXCLUDING
EVIDENCE "IS LIMITED IN ITS APPLICATION TO THE TRIAL OF MISDEMEANORS. 
...  IT WOULD APPEAR  ...  THAT  ...  EVIDENCE ILLEGALLY OBTAINED MAY
STILL BE ADMISSIBLE IN THE TRIAL OF FELONIES."  IN CLEVELAND, RECRUITS
AND OTHER OFFICERS ARE TOLD OF THE RULES OF SEARCH AND SEIZURE, BUT
"INSTRUCTED THAT IT IS ADMISSIBLE IN THE COURTS OF OHIO.  THE OHIO
SUPREME COURT HAS INDICATED VERY DEFINITELY AND CLEARLY THAT OHIO
BELONGS TO THE 'ADMISSIONIST' GROUP OF STATES WHEN EVIDENCE OBTAINED BY
AN ILLEGAL SEARCH IS PRESENTED TO THE COURT."  A SIMILAR PATTERN
EMERGES IN BIRMINGHAM, ALABAMA. 

THE CONTRAST BETWEEN STATES WITH THE FEDERAL RULE AND THOSE WITHOUT
IT IS THUS A POSITIVE DEMONSTRATION OF ITS EFFICACY.  THERE ARE
APPARENT EXCEPTIONS TO THE CONTRAST - DENVER, FOR EXAMPLE, APPEARS TO
PROVIDE AS COMPREHENSIVE A SERIES OF INSTRUCTIONS AS THAT IN CHICAGO,
ALTHOUGH COLORADO PERMITS INTRODUCTION OF THE EVIDENCE AND ILLINOIS
DOES NOT.  AND, SO FAR AS WE CAN DETERMINE FROM LETTERS, A FAIRLY
UNIFORM STANDARD OF OFFICER INSTRUCTION APPEARS IN OTHER CITIES,
IRRESPECTIVE OF THE LOCAL RULE OF EVIDENCE.  BUT THE EXAMPLES CITED
ABOVE SERVE TO GROUND AN ASSUMPTION THAT HAS MOTIVATED THIS COURT SINCE
THE WEEKS CASE:  THAT THIS IS AN AREA IN WHICH JUDICIAL ACTION HAS
POSITIVE EFFECT UPON THE BREACH OF LAW; AND THAT, WITHOUT JUDICIAL
ACTION, THERE ARE SIMPLY NO EFFECTIVE SANCTIONS PRESENTLY AVAILABLE. 

I CANNOT BELIEVE THAT WE SHOULD DECIDE DUE PROCESS QUESTIONS BY
SIMPLY TAKING A POLL OF THE RULES IN VARIOUS JURISDICTIONS, EVEN IF WE
FOLLOW THE PALKO "TEST."  TODAY'S DECISION WILL DO INESTIMABLE HARM TO
THE CAUSE OF FAIR POLICE METHODS IN OUR CITIES AND STATES.  EVEN MORE
IMPORTANT, PERHAPS, IT MUST HAVE TRAGIC EFFECT UPON PUBLIC RESPECT FOR
OUR JUDICIARY.  FOR THE COURT NOW ALLOWS WHAT IS INDEED SHABBY
BUSINESS:  LAWLESSNESS BY OFFICERS OF THE LAW. 

SINCE THE EVIDENCE ADMITTED WAS SECURED IN VIOLATION OF THE FOURTH
AMENDMENT, THE JUDGMENT SHOULD BE REVERSED. 

FN1  SEE POUND, CRIMINAL JUSTICE IN AMERICA (NEW YORK, 1930):  "UNDER
OUR LEGAL SYSTEM THE WAY OF THE PROSECUTOR IS HARD, AND THE NEED OF
'GETTING RESULTS' PUTS PRESSURE UPON PROSECUTORS TO ...  INDULGE IN
THAT LAWLESS ENFORCEMENT OF LAW WHICH PRODUCES A VICIOUS CIRCLE OF
DISRESPECT FOR LAW."  P. 186. 

AND NOTE THE STATEMENT OF THE WICKERSHAM COMMISSION, WITH REFERENCE
TO ARRESTS:  "  ...  IN CASE OF PERSONS OF NO INFLUENCE OR LITTLE OR NO
MEANS THE LEGAL RESTRICTIONS ARE NOT LIKELY TO GIVE AN OFFICER SERIOUS
TROUBLE."  II NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT,
REPORT ON CRIMINAL PROCEDURE (1931), P. 19. 

FN2  SEE MCCORMICK, DAMAGES, SEC. 78.  SEE WILLIS, MEASURE OF DAMAGES
WHEN PROPERTY IS WRONGFULLY TAKEN BY A PRIVATE INDIVIDUAL, 22 HARV. L.
REV. 419. 

FN3  ID., SEC. 79.  SEE FENNEMORE V. ARMSTRONG, 29 DEL. 35, 96 A.
204. 

FN4  "IT IS A WELL SETTLED AND ALMOST UNIVERSALLY ACCEPTED RULE IN
THE LAW OF DAMAGES THAT A FINDING OF EXEMPLARY DAMAGES MUST BE
PREDICATED UPON A FINDING OF ACTUAL DAMAGES."  17 IOWA L. REV. 413,
414.  THIS APPEARS TO BE AN OVERSTATEMENT.  SEE MCCORMICK, SUPRA, SEC.
83; RESTATEMENT IV, TORTS, SEC. 908, COMMENT C. 

FN5  THE MATERIAL WHICH FOLLOWS IS GLEANED FROM LETTERS AND OTHER
MATERIAL FROM COMMISSIONERS OF POLICE AND CHIEFS OF POLICE IN TWENTY
SIX CITIES.  THIRTY-EIGHT LARGE CITIES IN THE UNITED STATES WERE
SELECTED AT RANDOM, AND INQUIRIES DIRECTED CONCERNING THE INSTRUCTIONS
PROVIDED POLICE ON THE RULES OF SEARCH AND SEIZURE.  TWENTY-SIX REPLIES
HAVE BEEN RECEIVED TO DATE.  THOSE OF ANY SIGNIFICANCE ARE MENTIONED IN
THE TEXT OF THIS OPINION.  THE SAMPLE IS BELIEVED TO BE REPRESENTATIVE,
BUT IT CANNOT, OF COURSE, SUBSTITUTE FOR A THOROUGHGOING COMPARISON OF
PRESENT-DAY POLICE PROCEDURES BY A COMPLETELY OBJECTIVE OBSERVER.  A
STUDY OF THIS KIND WOULD BE OF INESTIMABLE VALUE. 

FN6  E.G., ASSISTANT SUPERINTENDENT TRUSCOTT'S LETTER TO THE
WASHINGTON POLICE FORCE OF JANUARY 3, 1949, CONCERNING MCDONALD V.
UNITED STATES, 335 U.S. 451. 

FN7  RECENTLY LECTURES HAVE INCLUDED TWO PAGES OF DISCUSSION OF THE
OPINIONS IN HARRIS V. UNITED STATES, 331 U.S. 145. 

FN8  CHIEF OF POLICE JOHN W. POLCYN NOTES, IN A FOREWORD TO THE BOOK,
THAT OFFICERS WERE OFTEN NOT PROPERLY INFORMED WITH RESPECT TO SEARCHES
AND SEIZURES BEFORE THOROUGHGOING INSTRUCTION WAS UNDERTAKEN.  ONE OF
THEIR FEARS WAS THAT OF "LOSING THEIR CASES IN COURT, ONLY BECAUSE THEY
NEGLECTED TO DO WHAT THEY MIGHT HAVE DONE WITH FULL LEGAL SANCTION AT
THE TIME OF THE ARREST, OR DID WHAT THEY HAD NO LEGAL RIGHT TO DO AT
SUCH TIME." 

MR. JUSTICE RUTLEDGE, DISSENTING. 

"WISDOM TOO OFTEN NEVER COMES, AND SO ONE OUGHT NOT TO REJECT IT
MERELY BECAUSE IT COMES LATE."  SIMILARLY, ONE SHOULD NOT REJECT A
PIECEMEAL WISDOM, MERELY BECAUSE IT HOBBLES TOWARD THE TRUTH WITH
BACKWARD GLANCES.  ACCORDINGLY, ALTHOUGH I THINK THAT ALL "THE SPECIFIC
GUARANTEES OF THE BILL OF RIGHTS SHOULD BE CARRIED OVER INTACT INTO THE
FIRST SECTION OF THE FOURTEENTH AMENDMENT," ADAMSON V. CALIFORNIA, 332
U.S. 46, DISSENTING OPINION AT 124, I WELCOME THE FACT THAT THE COURT,
IN ITS SLOWER PROGRESS TOWARD THIS GOAL, TODAY FINDS THE SUBSTANCE OF
THE FOURTH AMENDMENT "TO BE IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY,
AND THUS, THROUGH THE FOURTEENTH AMENDMENT, ... VALID AS AGAINST THE
STATES."  PALKO V. CONNECTICUT, 302 U.S. 319, 325. 

BUT I REJECT THE COURT'S SIMULTANEOUS CONCLUSION THAT THE MANDATE
EMBODIED IN THE FOURTH AMENDMENT, ALTHOUGH BINDING ON THE STATES, DOES
NOT CARRY WITH IT THE ONE SANCTION - EXCLUSION OF EVIDENCE TAKEN IN
VIOLATION OF THE AMENDMENT'S TERMS - FAILURE TO OBSERVE WHICH MEANS
THAT "THE PROTECTION OF THE FOURTH AMENDMENT  ...  MIGHT AS WELL BE
STRICKEN FROM THE CONSTITUTION."  WEEKS V. UNITED STATES, 232 U.S. 383,
393.  FOR I AGREE WITH MY BROTHER MURPHY'S DEMONSTRATION THAT THE
AMENDMENT WITHOUT THE SANCTION IS A DEAD LETTER.  TWENTY-NINE YEARS AGO
THIS COURT, SPEAKING THROUGH JUSTICE HOLMES, REFUSED TO PERMIT THE
GOVERNMENT TO SUBPOENA DOCUMENTARY EVIDENCE WHICH IT HAD STOLEN, COPIED
AND THEN RETURNED, FOR THE REASON THAT SUCH A PROCEDURE "REDUCES THE
FOURTH AMENDMENT TO A FORM OF WORDS."  SILVERTHORNE LUMBER CO. V.
UNITED STATES, 251 U.S. 385, 392.  BUT THE VERSION OF THE FOURTH
AMENDMENT TODAY HELD APPLICABLE TO THE STATES HARDLY RISES TO THE
DIGNITY OF A FORM OF WORDS; AT BEST IT IS A PALE AND FRAYED CARBON COPY
OF THE ORIGINAL, BEARING LITTLE RESEMBLANCE TO THE AMENDMENT THE
FULFILLMENT OF WHOSE COMMAND I HAD HERETOFORE THOUGHT TO BE "AN
INDISPENSABLE NEED FOR A DEMOCRATIC SOCIETY."  HARRIS V. UNITED STATES,
331 U.S. 145, DISSENTING OPINION AT 161.    I ALSO REJECT ANY
INTIMATION THAT CONGRESS COULD VALIDLY ENACT LEGISLATION PERMITTING THE
INTRODUCTION IN FEDERAL COURTS OF EVIDENCE SEIZED IN VIOLATION OF THE
FOURTH AMENDMENT.  I HAD THOUGHT THAT ISSUE SETTLED BY THIS COURT'S
INVALIDATION ON DUAL GROUNDS, IN BOYD V. UNITED STATES, 116 U.S. 616,
OF A FEDERAL STATUTE WHICH IN EFFECT REQUIRED THE PRODUCTION OF
EVIDENCE THOUGHT PROBATIVE BY GOVERNMENT COUNSEL - THE COURT THERE
HOLDING THE STATUTE TO BE "OBNOXIOUS TO THE PROHIBITION OF THE FOURTH
AMENDMENT OF THE CONSTITUTION, AS WELL AS OF THE FIFTH."  ID. AT 632. 
SEE ADAMS V. NEW YORK, 192 U.S. 585, 597, 598.  THE VIEW THAT THE
FOURTH AMENDMENT ITSELF FORBIDS THE INTRODUCTION OF EVIDENCE ILLEGALLY
OBTAINED IN FEDERAL PROSECUTIONS IS ONE OF LONG STANDING AND FIRMLY
ESTABLISHED.  SEE OLMSTEAD V. UNITED STATES, 277 U.S. 438, 462.  IT IS
TOO LATE IN MY JUDGMENT TO QUESTION IT NOW.  WE APPLY IT TODAY IN
LUSTIG V. UNITED STATES, POST, P. 74. 

AS CONGRESS AND THIS COURT ARE, IN MY JUDGMENT, POWERLESS TO PERMIT
THE ADMISSION IN FEDERAL COURTS OF EVIDENCE SEIZED IN DEFIANCE OF THE
FOURTH AMENDMENT, SO I THINK STATE LEGISLATORS AND JUDGES - IF SUBJECT
TO THE AMENDMENT, AS I BELIEVE THEM TO BE - MAY NOT LEND THEIR OFFICES
TO THE ADMISSION IN STATE COURTS OF EVIDENCE THUS SEIZED.  COMPLIANCE
WITH THE BILL OF RIGHTS BETOKENS MORE THAN LIP SERVICE. 

THE COURT MAKES THE ILLEGALITY OF THIS SEARCH AND SEIZURE ITS
INARTICULATE PREMISE OF DECISION.  I ACQUIESCE IN THAT PREMISE AND
THINK THE CONVICTIONS SHOULD BE REVERSED. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 
..END :
















WATTS V. INDIANA, 338 U.S. 49 


NO. 610.  ARGUED APRIL 25, 1949.  - DECIDED JUNE 27, 1949.  - 226 IND.
655, 82 N.E.2D 846, REVERSED. 


PETITIONER WAS ARRESTED ON SUSPICION ON A WEDNESDAY AND HELD WITHOUT
ARRAIGNMENT, WITHOUT THE AID OF COUNSEL OR FRIENDS AND WITHOUT ADVICE
AS TO HIS CONSTITUTIONAL RIGHTS, UNTIL THE FOLLOWING TUESDAY, WHEN HE
CONFESSED TO MURDER.  MEANWHILE HE WAS HELD MUCH OF THE TIME IN
SOLITARY CONFINEMENT IN A CELL WITH NO PLACE TO SIT OR SLEEP EXCEPT THE
FLOOR AND WAS INTERROGATED BY RELAYS OF POLICE OFFICERS, USUALLY UNTIL
LONG PAST MIDNIGHT.  AT HIS TRIAL IN A STATE COURT, THE CONFESSION WAS
ADMITTED IN EVIDENCE OVER HIS OBJECTION AND HE WAS CONVICTED.  HELD:
THE USE AT THE TRIAL OF A CONFESSION OBTAINED IN THIS MANNER VIOLATED
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND THE CONVICTION
IS REVERSED.  PP. 49-55. 

WATTS V. INDIANA. 

CERTIORARI TO THE SUPREME COURT OF INDIANA. 

THE SUPREME COURT OF INDIANA AFFIRMED PETITIONER'S CONVICTION FOR
MURDER, NOTWITHSTANDING HIS CONTENTION THAT HIS CONFESSION WAS PROCURED
UNDER CIRCUMSTANCES RENDERING ITS ADMISSION IN EVIDENCE A DENIAL OF DUE
PROCESS OF LAW.  226 IND. 655, 82 N.E.2D 846.  THIS COURT GRANTED
CERTIORARI.  336 U.S. 917.  REVERSED, P. 55. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE JOIN. 

ALTHOUGH THE CONSTITUTION PUTS PROTECTION AGAINST CRIME PREDOMINANTLY
IN THE KEEPING OF THE STATES, THE FOURTEENTH AMENDMENT SEVERELY
RESTRICTED THE STATES IN THEIR ADMINISTRATION OF CRIMINAL JUSTICE. 
THUS, WHILE THE STATE COURTS HAVE THE RESPONSIBILITY FOR SECURING THE
RUDIMENTARY REQUIREMENTS OF A CIVILIZED ORDER, IN DISCHARGING THAT
RESPONSIBILITY THERE HANGS OVER THEM THE REVIEWING POWER OF THIS
COURT.  FN1  POWER OF SUCH DELICACY AND IMPORT MUST, OF COURSE, BE
EXERCISED WITH THE GREATEST FORBEARANCE.  WHEN, HOWEVER, APPEAL IS MADE
TO IT, THERE IS NO ESCAPE.  AND SO THIS COURT ONCE AGAIN MUST MEET THE
UNCONGENIAL DUTY OF TESTING THE VALIDITY OF A CONVICTION BY A STATE
COURT FOR A STATE CRIME BY WHAT IS TO BE FOUND IN THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  THIS CASE IS HERE BECAUSE THE
SUPREME COURT OF INDIANA REJECTED PETITIONER'S CLAIM THAT CONFESSIONS
ELICITED FROM HIM WERE PROCURED UNDER CIRCUMSTANCES RENDERING THEIR
ADMISSION AS EVIDENCE AGAINST HIM A DENIAL OF DUE PROCESS OF LAW.  FN2
226 IND. 655, 82 N.E.2D 846.  THE GROUNDS ON WHICH OUR REVIEW WAS
SOUGHT SEEMED SUFFICIENTLY WEIGHTY TO GRANT THE PETITION FOR
CERTIORARI.  336 U.S. 917. 

ON REVIEW HERE OF STATE CONVICTIONS, ALL THOSE MATTERS WHICH ARE
USUALLY TERMED ISSUES OF FACT ARE FOR CONCLUSIVE DETERMINATION BY THE
STATE COURTS AND ARE NOT OPEN FOR RECONSIDERATION BY THIS COURT. 
OBSERVANCE OF THIS RESTRICTION IN OUR REVIEW OF STATE COURTS CALLS FOR
THE UTMOST SCRUPLE.  BUT "ISSUE OF FACT" IS A COAT OF MANY COLORS.  IT
DOES NOT COVER A CONCLUSION DRAWN FROM UNCONTROVERTED HAPPENINGS, WHEN
THAT CONCLUSION INCORPORATES STANDARDS OF CONDUCT OR CRITERIA FOR
JUDGMENT WHICH IN THEMSELVES ARE DECISIVE OF CONSTITUTIONAL RIGHTS. 
SUCH STANDARDS AND CRITERIA, MEASURED AGAINST THE REQUIREMENTS DRAWN
FROM CONSTITUTIONAL PROVISIONS, AND THEIR PROPER APPLICATIONS, ARE
ISSUES FOR THIS COURT'S ADJUDICATION.  HOOVEN & ALLISON CO. V. EVATT,
324 U.S. 652, 659, AND CASES CITED.  ESPECIALLY IN CASES ARISING UNDER
THE DUE PROCESS CLAUSE IS IT IMPORTANT TO DISTINGUISH BETWEEN ISSUES OF
FACT THAT ARE HERE FORECLOSED AND ISSUES WHICH, THOUGH CAST IN THE FORM
OF DETERMINATIONS OF FACT, ARE THE VERY ISSUES TO REVIEW WHICH THIS
COURT SITS.  SEE NORRIS V. ALABAMA, 294 U.S. 587, 589-90; MARSH V.
ALABAMA, 326 U.S. 501, 510. 

IN THE APPLICATION OF SO EMBRACING A CONSTITUTIONAL CONCEPT AS "DUE
PROCESS," IT WOULD BE IDLE TO EXPECT AT ALL TIMES UNANIMITY OF VIEWS. 
NEVERTHELESS, IN ALL THE CASES THAT HAVE COME HERE DURING THE LAST
DECADE FROM THE COURTS OF THE VARIOUS STATES IN WHICH IT WAS CLAIMED
THAT THE ADMISSION OF COERCED CONFESSIONS VITIATED CONVICTIONS FOR
MURDER,  FN3  THERE HAS BEEN COMPLETE AGREEMENT THAT ANY CONFLICT IN
TESTIMONY AS TO WHAT ACTUALLY LED TO A CONTESTED CONFESSION IS NOT THIS
COURT'S CONCERN.  SUCH CONFLICT COMES HERE AUTHORITATIVELY RESOLVED BY
THE STATE'S ADJUDICATION.  THEREFORE ONLY THOSE ELEMENTS OF THE EVENTS
AND CIRCUMSTANCES IN WHICH A CONFESSION WAS INVOLVED THAT ARE
UNQUESTIONED IN THE STATE'S VERSION OF WHAT HAPPENED ARE RELEVANT TO
THE CONSTITUTIONAL ISSUE HERE.  BUT IF FORCE HAS BEEN APPLIED, THIS
COURT DOES NOT LEAVE TO LOCAL DETERMINATION WHETHER OR NOT THE
CONFESSION WAS VOLUNTARY.  THERE IS TORTURE OF MIND AS WELL AS BODY;
THE WILL IS AS MUCH AFFECTED BY FEAR AS BY FORCE.  AND THERE COMES A
POINT WHERE THIS COURT SHOULD NOT BE IGNORANT AS JUDGES OF WHAT WE KNOW
AS MEN.  SEE TAFT, C.J., IN THE CHILD LABOR TAX CASE, 259 U.S. 20, 37. 

THIS BRINGS US TO THE UNDISPUTED CIRCUMSTANCES WHICH MUST DETERMINE
THE ISSUE OF DUE PROCESS IN THIS CASE.  THANKS TO THE FORTHRIGHTNESS OF
COUNSEL FOR INDIANA, THESE CIRCUMSTANCES MAY BE BRIEFLY STATED. 

ON NOVEMBER 12, 1947, A WEDNESDAY, PETITIONER WAS ARRESTED AND HELD
AS THE SUSPECTED PERPETRATOR OF AN ALLEGED CRIMINAL ASSAULT EARLIER IN
THE DAY.  LATER THE SAME DAY, IN THE VICINITY OF THIS OCCURRENCE, A
WOMAN WAS FOUND DEAD UNDER CONDITIONS SUGGESTING MURDER IN THE COURSE
OF AN ATTEMPTED CRIMINAL ASSAULT.  SUSPICION OF MURDER QUICKLY TURNED
TOWARDS PETITIONER AND THE POLICE BEGAN TO QUESTION HIM.  THEY TOOK HIM
FROM THE COUNTY JAIL TO STATE POLICE HEADQUARTERS, WHERE HE WAS
QUESTIONED BY OFFICERS IN RELAYS FROM ABOUT 11:30 THAT NIGHT UNTIL
SOMETIME BETWEEN 2:30 AND 3 O'CLOCK THE FOLLOWING MORNING.  THE SAME
PROCEDURE OF PERSISTENT INTERROGATION FROM ABOUT 5:30 IN THE AFTERNOON
UNTIL ABOUT 3 O'CLOCK THE FOLLOWING MORNING, BY A RELAY OF SIX TO EIGHT
OFFICERS, WAS PURSUED ON THURSDAY THE 13TH, FRIDAY THE 14TH, SATURDAY
THE 15TH, MONDAY THE 17TH.  SUNDAY WAS A DAY OF REST FROM
INTERROGATION.  ABOUT 3 O'CLOCK ON TUESDAY MORNING, NOVEMBER 18, THE
PETITIONER MADE AN INCRIMINATING STATEMENT AFTER CONTINUOUS QUESTIONING
SINCE 6 O'CLOCK OF THE PRECEDING EVENING.  THE STATEMENT DID NOT
SATISFY THE PROSECUTOR WHO HAD BEEN CALLED IN AND HE THEN TOOK
PETITIONER IN HAND.  PETITIONER, QUESTIONED BY AN INTERROGATOR OF
TWENTY YEARS' EXPERIENCE AS LAWYER, JUDGE AND PROSECUTOR, YIELDED A
MORE INCRIMINATING DOCUMENT. 

UNTIL HIS INCULPATORY STATEMENTS WERE SECURED, THE PETITIONER WAS A
PRISONER IN THE EXCLUSIVE CONTROL OF THE PROSECUTING AUTHORITIES.  HE
WAS KEPT FOR THE FIRST TWO DAYS IN SOLITARY CONFINEMENT IN A CELL APTLY
ENOUGH CALLED "THE HOLE" IN VIEW OF ITS PHYSICAL CONDITIONS AS
DESCRIBED BY THE STATE'S WITNESSES.  APART FROM THE FIVE NIGHT
SESSIONS, THE POLICE INTERMITTENTLY INTERROGATED WATTS DURING THE DAY
AND ON THREE DAYS DROVE HIM AROUND TOWN, HOURS AT A TIME, WITH A VIEW
TO ELICITING IDENTIFICATIONS AND OTHER DISCLOSURES.  ALTHOUGH THE LAW
OF INDIANA REQUIRED THAT PETITIONER BE GIVEN A PROMPT PRELIMINARY
HEARING BEFORE A MAGISTRATE, WITH ALL THE PROTECTION A HEARING WAS
INTENDED TO GIVE HIM, THE PETITIONER WAS NOT ONLY GIVEN NO HEARING
DURING THE ENTIRE PERIOD OF INTERROGATION BUT WAS WITHOUT FRIENDLY OR
PROFESSIONAL AID AND WITHOUT ADVICE AS TO HIS CONSTITUTIONAL RIGHTS. 
DISREGARD OF RUDIMENTARY NEEDS OF LIFE - OPPORTUNITIES FOR SLEEP AND A
DECENT ALLOWANCE OF FOOD - ARE ALSO RELEVANT, NOT AS AGGRAVATING
ELEMENTS OF PETITIONER'S TREATMENT, BUT AS PART OF THE TOTAL SITUATION
OUT OF WHICH HIS CONFESSIONS CAME AND WHICH STAMPED THEIR CHARACTER. 

A CONFESSION BY WHICH LIFE BECOMES FORFEIT MUST BE THE EXPRESSION OF
FREE CHOICE.  A STATEMENT TO BE VOLUNTARY OF COURSE NEED NOT BE
VOLUNTEERED.  BUT IF IT IS THE PRODUCT OF SUSTAINED PRESSURE BY THE
POLICE IT DOES NOT ISSUE FROM A FREE CHOICE.  WHEN A SUSPECT SPEAKS
BECAUSE HE IS OVERBORNE, IT IS IMMATERIAL WHETHER HE HAS BEEN SUBJECTED
TO A PHYSICAL OR A MENTAL ORDEAL.  EVENTUAL YIELDING TO QUESTIONING
UNDER SUCH CIRCUMSTANCES IS PLAINLY THE PRODUCT OF THE SUCTION PROCESS
OF INTERROGATION AND THEREFORE THE REVERSE OF VOLUNTARY.  WE WOULD HAVE
TO SHUT OUR MINDS TO THE PLAIN SIGNIFICANCE OF WHAT HERE TRANSPIRED TO
DENY THAT THIS WAS A CALCULATED ENDEAVOR TO SECURE A CONFESSION THROUGH
THE PRESSURE OF UNRELENTING INTERROGATION.  THE VERY RELENTLESSNESS OF
SUCH INTERROGATION IMPLIES THAT IT IS BETTER FOR THE PRISONER TO ANSWER
THAN TO PERSIST IN THE REFUSAL OF DISCLOSURE WHICH IS HIS
CONSTITUTIONAL RIGHT.  (TO TURN THE DETENTION OF AN ACCUSED INTO A
PROCESS OF WRENCHING FROM HIM EVIDENCE WHICH COULD NOT BE EXTORTED IN
OPEN COURT WITH ALL ITS SAFEGUARDS, IS SO GRAVE AN ABUSE OF THE POWER
OF ARREST AS TO OFFEND THE PROCEDURAL STANDARDS OF DUE PROCESS. 

THIS IS SO BECAUSE IT VIOLATES THE UNDERLYING PRINCIPLE IN OUR
ENFORCEMENT OF THE CRIMINAL LAW.  OURS IS THE ACCUSATORIAL AS OPPOSED
TO THE INQUISITORIAL SYSTEM.  SUCH HAS BEEN THE CHARACTERISTIC OF ANGLO
AMERICAN CRIMINAL JUSTICE SINCE IT FREED ITSELF FROM PRACTICES BORROWED
BY THE STAR CHAMBER FROM THE CONTINENT WHEREBY AN ACCUSED WAS
INTERROGATED IN SECRET FOR HOURS ON END.  SEE PLOSCOWE, THE DEVELOPMENT
OF PRESENT-DAY CRIMINAL PROCEDURES IN EUROPE AND AMERICA, 48 HARV. L.
REV. 433, 457-58, 467-473(1935).  UNDER OUR SYSTEM SOCIETY CARRIES THE
BURDEN OF PROVING ITS CHARGE AGAINST THE ACCUSED NOT OUT OF HIS OWN
MOUTH.  IT MUST ESTABLISH ITS CASE, NOT BY INTERROGATION OF THE ACCUSED
EVEN UNDER JUDICIAL SAFEGUARDS, BUT BY EVIDENCE INDEPENDENTLY SECURED
THROUGH SKILLFUL INVESTIGATION.  "THE LAW WILL NOT SUFFER A PRISONER TO
BE MADE THE DELUDED INSTRUMENT OF HIS OWN CONVICTION."  2 HAWKINS,
PLEAS OF THE CROWN, C. 46, SEC. 34(8TH ED., 1824).  THE REQUIREMENT OF
SPECIFIC CHARGES, THEIR PROOF BEYOND A REASONABLE DOUBT, THE PROTECTION
OF THE ACCUSED FROM CONFESSIONS EXTORTED THROUGH WHATEVER FORM OF
POLICE PRESSURES, THE RIGHT TO A PROMPT HEARING BEFORE A MAGISTRATE,
THE RIGHT TO ASSISTANCE OF COUNSEL, TO BE SUPPLIED BY GOVERNMENT WHEN
CIRCUMSTANCES MAKE IT NECESSARY, THE DUTY TO ADVISE AN ACCUSED OF HIS
CONSTITUTIONAL RIGHTS - THESE ARE ALL CHARACTERISTICS OF THE
ACCUSATORIAL SYSTEM AND MANIFESTATIONS OF ITS DEMANDS.  PROTRACTED,
SYSTEMATIC AND UNCONTROLLED SUBJECTION OF AN ACCUSED TO INTERROGATION
BY THE POLICE FOR THE PURPOSE OF ELICITING DISCLOSURES OR CONFESSIONS
IS SUBVERSIVE OF THE ACCUSATORIAL SYSTEM.  IT IS THE INQUISITORIAL
SYSTEM WITHOUT ITS SAFEGUARDS.  FOR WHILE UNDER THAT SYSTEM THE ACCUSED
IS SUBJECTED TO JUDICIAL INTERROGATION, HE IS PROTECTED BY THE
DISINTERESTEDNESS OF THE JUDGE IN THE PRESENCE OF COUNSEL.  SEE KEEDY,
THE PRELIMINARY INVESTIGATION OF CRIME IN FRANCE, 88 U. OF PA. L. REV.
692, 708-712(1940). 

IN HOLDING THAT THE DUE PROCESS CLAUSE BARS POLICE PROCEDURE WHICH
VIOLATES THE BASIC NOTIONS OF OUR ACCUSATORIAL MODE OF PROSECUTING
CRIME AND VITIATES A CONVICTION BASED ON THE FRUITS OF SUCH PROCEDURE,
WE APPLY THE DUE PROCESS CLAUSE TO ITS HISTORIC FUNCTION OF ASSURING
APPROPRIATE PROCEDURE BEFORE LIBERTY IS CURTAILED OR LIFE IS TAKEN.  WE
ARE DEEPLY MINDFUL OF THE ANGUISHING PROBLEMS WHICH THE INCIDENCE OF
CRIME PRESENTS TO THE STATES.  BUT THE HISTORY OF THE CRIMINAL LAW
PROVES OVERWHELMINGLY THAT BRUTAL METHODS OF LAW ENFORCEMENT ARE
ESSENTIALLY SELF-DEFEATING, WHATEVER MAY BE THEIR EFFECT IN A
PARTICULAR CASE.  SEE, E.G., RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL
LAW AND ITS ADMINISTRATION FROM 1750, PASSIM (1948).  LAW TRIUMPHS WHEN
THE NATURAL IMPULSES AROUSED BY A SHOCKING CRIME YIELD TO THE
SAFEGUARDS WHICH OUR CIVILIZATION HAS EVOLVED FOR AN ADMINISTRATION OF
CRIMINAL JUSTICE AT ONCE RATIONAL AND EFFECTIVE. 

WE HAVE EXAMINED PETITIONER'S OTHER CONTENTIONS AND DO NOT SUSTAIN
THEM.  REVERSED. 

FN1  OF COURSE THIS COURT DOES NOT HAVE THE CORRECTIVE POWER OVER
STATE COURTS THAT IT HAS OVER THE LOWER FEDERAL COURTS.  SEE, E.G.,
MCNABB V. UNITED STATES, 318 U.S. 332.  IN THE MAIN, THE PROPER
ADMINISTRATION OF THE CRIMINAL LAW OF THE STATES RESTS WITH THE STATE
COURTS.  THE NATURE OF THE DUE PROCESS CLAUSE, HOWEVER, POTENTIALLY
GIVES WIDE RANGE TO THE REVIEWING POWER OF THIS COURT OVER STATECOURT
CONVICTIONS. 

FN2  IN THE PETITIONER'S STATEMENTS THERE WAS ACKNOWLEDGMENT OF THE
POSSESSION OF AN INCRIMINATING GUN, THE EXISTENCE OF WHICH THE POLICE
INDEPENDENTLY ESTABLISHED.  BUT A COERCED CONFESSION IS INADMISSIBLE
UNDER THE DUE PROCESS CLAUSE EVEN THOUGH STATEMENTS IN IT MAY BE
INDEPENDENTLY ESTABLISHED AS TRUE.  SEE LISENBA V. CALIFORNIA, 314 U.S.
219, 236-237. 

FN3  THE VALIDITY OF A CONVICTION BECAUSE AN ALLEGEDLY COERCED
CONFESSION WAS USED HAS BEEN CALLED INTO QUESTION IN THE FOLLOWING
CASES: 

(A)  CONFESSION WAS FOUND TO BE PROCURED UNDER CIRCUMSTANCES
VIOLATIVE OF THE DUE PROCESS CLAUSE IN HALEY V. OHIO, 332 U.S. 596;
MALINSKI V. NEW YORK, 324 U.S. 401; ASHCRAFT V. TENNESSEE, 322 U.S.
143; WARD V. TEXAS, 316 U.S. 547; LOMAX V. TEXAS, 313 U.S. 544; VERNON
V. ALABAMA, 313 U.S. 547; WHITE V. TEXAS, 310 U.S. 530; CANTY V.
ALABAMA, 309 U.S. 629; WHITE V. TEXAS, 309 U.S. 631; CHAMBERS V.
FLORIDA, 309 U.S. 227; BROWN V. MISSISSIPPI, 297 U.S. 278; AND SEE
ASHCRAFT V. TENNESSEE, 327 U.S. 274. 

(B)  CONFESSION WAS FOUND TO HAVE BEEN PROCURED UNDER CIRCUMSTANCES
NOT VIOLATIVE OF THE DUE PROCESS CLAUSE IN LYONS V. OKLAHOMA, 322 U.S.
596, AND LISENBA V. CALIFORNIA, 314 U.S. 219. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT OF THE COURT ON THE
AUTHORITY OF CHAMBERS V. FLORIDA, 309 U.S. 227; ASHCRAFT V. TENNESSEE,
322 U.S. 143. 

ON THE RECORD BEFORE US AND IN VIEW OF THE CONSIDERATION GIVEN TO THE
EVIDENCE BY THE STATE COURTS AND THE CONCLUSION REACHED, THE CHIEF
JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON BELIEVE THAT THE
JUDGMENT SHOULD BE AFFIRMED. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE FOLLOWING ARE THE UNDISPUTED FACTS: 

PETITIONER WAS TAKEN INTO CUSTODY EARLY IN THE AFTERNOON ON
WEDNESDAY, NOVEMBER 12, 1947.  HE WAS FIRST DETAINED ON SUSPICION OF
HAVING COMMITTED A CRIMINAL ASSAULT, AND IT WAS NOT UNTIL LATER IN THE
DAY OF HIS ARREST THAT HE WAS SUSPECTED OF HAVING COMMITTED THE MURDER
FOR WHICH HE WAS LATER TRIED AND CONVICTED.  HE WAS HELD WITHOUT BEING
ARRAIGNED, UNTIL THE FOLLOWING TUESDAY WHEN HE GAVE A CONFESSION THAT
SATISFIED THE POLICE.  AT NO TIME WAS HE ADVISED OF HIS RIGHT TO REMAIN
SILENT, NOR DID HE HAVE THE ADVICE OF FAMILY, FRIENDS OR COUNSEL DURING
HIS CONFINEMENT.  HE WAS NOT PROMPTLY ARRAIGNED AS INDIANA LAW
REQUIRES.    DURING THIS CONFINEMENT, PETITIONER WAS HELD IN THE COUNTY
JAIL.  THE FIRST TWO DAYS HE WAS PLACED IN SOLITARY CONFINEMENT IN A
CELL KNOWN AMONG THE PRISONERS AS "THE HOLE."  THERE WAS NO PLACE ON
WHICH TO SIT OR SLEEP EXCEPT THE FLOOR.  THROUGHOUT THIS SIX-DAY
CONFINEMENT PETITIONER WAS SUBJECTED EACH DAY, EXCEPT SUNDAY, TO LONG
PERIODS OF INTERROGATION.  HE WAS MOVED TO THE STATE POLICE
HEADQUARTERS FOR THESE QUESTIONINGS.  THE QUESTION PERIOD WOULD USUALLY
BEGIN ABOUT SIX O'CLOCK IN THE EVENING, EXCEPT FOR THE FIRST NIGHT WHEN
IT BEGAN ABOUT ELEVEN THIRTY.  EACH QUESTION PERIOD WOULD EXTEND TO TWO
OR THREE O'CLOCK THE FOLLOWING MORNING.  THESE INTERROGATIONS WERE
CONDUCTED BY RELAYS OF SMALL GROUPS OF OFFICERS.  ON SEVERAL OCCASIONS
PETITIONER WAS GIVEN LIEDETECTOR TESTS.  FOLLOWING THE EVENING'S
INTERROGATION, HE WOULD BE RETURNED TO THE COUNTY JAIL.  EVEN THEN HE
WAS NOT ALWAYS GIVEN RESPITE UNTIL THE NEXT EVENING'S ORDEAL
COMMENCED.  HE WAS SUBJECTED TO INTERMITTENT QUESTIONING DURING THE
DAY, AND ON THREE AFTERNOONS HE WAS DRIVEN ABOUT THE TOWN FOR SEVERAL
HOURS BY THE POLICE IN AN ATTEMPT TO ELICIT FURTHER INFORMATION AND TO
RECONSTRUCT PETITIONER'S ACTIVITIES THE DAY OF THE CRIME. 

IT WAS ABOUT TWO OR THREE O'CLOCK TUESDAY MORNING AFTER ABOUT SEVEN
HOURS' INTERROGATION THAT PETITIONER GAVE THE CONFESSION USED AGAINST
HIM OVER OBJECTION AT HIS TRIAL.  THIS WAS AFTER SIX DAYS OF
CONFINEMENT. 

IT WOULD BE NAIVE TO THINK THAT THIS PROTECTIVE CUSTODY WAS LESS THAN
THE INQUISITION.  THE MAN WAS HELD UNTIL HE BROKE.  THEN AND ONLY THEN
WAS HE ARRAIGNED AND GIVEN THE PROTECTION WHICH THE LAW PROVIDES ALL
ACCUSED.  DETENTION WITHOUT ARRAIGNMENT IS A TIME-HONORED METHOD FOR
KEEPING AN ACCUSED UNDER THE EXCLUSIVE CONTROL OF THE POLICE.  THEY CAN
THEN OPERATE AT THEIR LEISURE.  THE ACCUSED IS WHOLLY AT THEIR MERCY. 
HE IS WITHOUT THE AID OF COUNSEL OR FRIENDS; AND HE IS DENIED THE
PROTECTION OF THE MAGISTRATE.  WE SHOULD UNEQUIVOCALLY CONDEMN THE
PROCEDURE AND STAND READY TO OUTLAW, AS WE DID IN MALINSKI V. NEW YORK,
324 U.S. 401, AND HALEY V. OHIO, 332 U.S. 596, ANY CONFESSION OBTAINED
DURING THE PERIOD OF THE UNLAWFUL DETENTION.  THE PROCEDURE BREEDS
COERCED CONFESSIONS.  IT IS THE ROOT OF THE EVIL.  IT IS THE PROCEDURE
WITHOUT WHICH THE INQUISITION COULD NOT FLOURISH IN THE COUNTRY. 

MR. JUSTICE JACKSON CONCURRING IN THE RESULT IN NO. 610 AND
DISSENTING IN NOS. 76 AND 107* . 

*(FOR OTHER OPINIONS IN NO. 76, HARRIS V. SOUTH CAROLINA, AND NO.
107, TURNER V. PENNSYLVANIA, SEE POST, PP. 68, 62.) 

THESE THREE CASES, FROM WIDELY SEPARATED STATES, PRESENT ESSENTIALLY
THE SAME PROBLEM.  ITS RECURRENCE SUGGESTS THAT IT HAS ROOTS IN SOME
CONDITION FUNDAMENTAL AND GENERAL TO OUR CRIMINAL SYSTEM. 

IN EACH CASE POLICE WERE CONFRONTED WITH ONE OR MORE BRUTAL MURDERS
WHICH THE AUTHORITIES WERE UNDER THE HIGHEST DUTY TO SOLVE.  EACH OF
THESE MURDERS WAS UNWITNESSED, AND THE ONLY POSITIVE KNOWLEDGE ON WHICH
A SOLUTION COULD BE BASED WAS POSSESSED BY THE KILLER.  IN EACH THERE
WAS REASONABLE GROUND TO SUSPECT AN INDIVIDUAL BUT NOT ENOUGH LEGAL
EVIDENCE TO CHARGE HIM WITH GUILT.  IN EACH THE POLICE ATTEMPTED TO
MEET THE SITUATION BY TAKING THE SUSPECT INTO CUSTODY AND INTERROGATING
HIM.  THIS EXTENDED OVER VARYING PERIODS.  IN EACH, CONFESSIONS WERE
MADE AND RECEIVED IN EVIDENCE AT THE TRIAL.  CHECKED WITH EXTERNAL
EVIDENCE, THEY ARE INHERENTLY BELIEVABLE, AND WERE NOT SHAKEN AS TO
TRUTH BY ANYTHING THAT OCCURRED AT THE TRIAL.  EACH CONFESSOR WAS
CONVICTED BY A JURY AND STATE COURTS AFFIRMED.  THIS COURT SETS ALL
THREE CONVICTIONS ASIDE. 

THE SERIOUSNESS OF THE COURT'S JUDGMENT IS THAT NO ONE SUGGESTS THAT
ANY COURSE HELD PROMISE OF SOLUTION OF THESE MURDERS OTHER THAN TO TAKE
THE SUSPECT INTO CUSTODY FOR QUESTIONING.  THE ALTERNATIVE WAS TO CLOSE
THE BOOKS ON THE CRIME AND FORGET IT, WITH THE SUSPECT AT LARGE.  THIS
IS A GRAVE CHOICE FOR A SOCIETY IN WHICH TWO-THIRDS OF THE MURDERS
ALREADY ARE CLOSED OUT AS INSOLUBLE. 

A CONCURRING OPINION, HOWEVER, GOES TO THE VERY LIMIT AND SEEMS TO
DECLARE FOR OUTLAWING ANY CONFESSION, HOWEVER FREELY GIVEN, IF OBTAINED
DURING A PERIOD OF CUSTODY BETWEEN ARREST AND ARRAIGNMENT - WHICH, IN
PRACTICE, MEANS ALL OF THEM. 

OTHERS WOULD STRIKE DOWN THESE CONFESSIONS BECAUSE OF CONDITIONS
WHICH THEY SAY MAKE THEM "INVOLUNTARY."  IN THIS, ON ONLY A PRINTED
RECORD, THEY PIT THEIR JUDGMENT AGAINST THAT OF THE TRIAL JUDGE AND THE
JURY.  BOTH, WITH THE GREAT ADVANTAGE OF HEARING AND SEEING THE
CONFESSOR AND ALSO THE OFFICERS WHOSE CONDUCT AND BEARING TOWARD HIM IS
IN QUESTION, HAVE FOUND THAT THE CONFESSIONS WERE VOLUNTARY.  IN
ADDITION, THE MAJORITY OVERRULE IN EACH CASE ONE OR MORE STATE
APPELLATE COURTS, WHICH HAVE THE SAME LIMITED OPPORTUNITY TO KNOW THE
TRUTH THAT WE DO. 

AMID MUCH THAT IS IRRELEVANT OR TRIVIAL, ONE SERIOUS SITUATION SEEMS
TO ME TO STAND OUT IN THESE CASES.  THE SUSPECT NEITHER HAD NOR WAS
ADVISED OF HIS RIGHT TO GET COUNSEL.  THIS PRESENTS A REAL DILEMMA IN A
FREE SOCIETY.  TO SUBJECT ONE WITHOUT COUNSEL TO QUESTIONING WHICH MAY
AND IS INTENDED TO CONVICT HIM, IS A REAL PERIL TO INDIVIDUAL FREEDOM. 
TO BRING IN A LAWYER MEANS A REAL PERIL TO SOLUTION OF THE CRIME,
BECAUSE, UNDER OUR ADVERSARY SYSTEM, HE DEEMS THAT HIS SOLE DUTY IS TO
PROTECT HIS CLIENT - GUILTY OR INNOCENT - AND THAT IN SUCH A CAPACITY
HE OWES NO DUTY WHATEVER TO HELP SOCIETY SOLVE ITS CRIME PROBLEM. 
UNDER THIS CONCEPTION OF CRIMINAL PROCEDURE, ANY LAWYER WORTH HIS SALT
WILL TELL THE SUSPECT IN NO UNCERTAIN TERMS TO MAKE NO STATEMENT TO
POLICE UNDER ANY CIRCUMSTANCES. 

IF THE STATE MAY ARREST ON SUSPICION AND INTERROGATE WITHOUT COUNSEL,
THERE IS NO DENYING THE FACT THAT IT LARGELY NEGATES THE BENEFITS OF
THE CONSTITUTIONAL GUARANTY OF THE RIGHT TO ASSISTANCE OF COUNSEL.  ANY
LAWYER WHO HAS EVER BEEN CALLED INTO A CASE AFTER HIS CLIENT HAS "TOLD
ALL" AND TURNED ANY EVIDENCE HE HAS OVER TO THE GOVERNMENT, KNOWS HOW
HELPLESS HE IS TO PROTECT HIS CLIENT AGAINST THE FACTS THUS DISCLOSED. 

I SUPPOSE THE VIEW ONE TAKES WILL TURN ON WHAT ONE THINKS SHOULD BE
THE RIGHT OF AN ACCUSED PERSON AGAINST THE STATE.  IS IT HIS RIGHT TO
HAVE THE JUDGMENT ON THE FACTS?  OR IS IT HIS RIGHT TO HAVE A JUDGMENT
BASED ON ONLY SUCH EVIDENCE AS HE CANNOT CONCEAL FROM THE AUTHORITIES,
WHO CANNOT COMPEL HIM TO TESTIFY IN COURT AND ALSO CANNOT QUESTION HIM
BEFORE?  OUR SYSTEM COMES CLOSE TO THE LATTER BY ANY INTERPRETATION,
FOR THE DEFENDANT IS SHIELDED BY SUCH SAFEGUARDS AS NO SYSTEM OF LAW
EXCEPT THE ANGLO-AMERICAN CONCEDES TO HIM. 

OF COURSE, NO CONFESSION THAT HAS BEEN OBTAINED BY ANY FORM OF
PHYSICAL VIOLENCE TO THE PERSON IS RELIABLE AND HENCE NO CONVICTION
SHOULD REST UPON ONE OBTAINED IN THAT MANNER.  SUCH TREATMENT NOT ONLY
BREAKS THE WILL TO CONCEAL OR LIE, BUT MAY EVEN BREAK THE WILL TO STAND
BY THE TRUTH.  NOR IS IT QUESTIONED THAT THE SAME RESULT CAN SOMETIMES
BE ACHIEVED BY THREATS, PROMISES, OR INDUCEMENTS, WHICH TORTURE THE
MIND BUT PUT NO SCAR ON THE BODY.  IF THE OPINION OF MR. JUSTICE
FRANKFURTER IN THE WATTS CASE WERE BASED SOLELY ON THE STATE'S
ADMISSIONS AS TO THE TREATMENT OF WATTS, I SHOULD NOT DISAGREE.  BUT IF
ULTIMATE QUEST IN A CRIMINAL TRIAL IS THE TRUTH AND IF THE
CIRCUMSTANCES INDICATE NO VIOLENCE OR THREATS OF IT, SHOULD SOCIETY BE
DEPRIVED OF THE SUSPECT'S HELP IN SOLVING A CRIME MERELY BECAUSE HE WAS
CONFINED AND QUESTIONED WHEN UNCOUNSELED? 

WE MUST NOT OVERLOOK THAT, IN THESE AS IN SOME PREVIOUS CASES, ONCE A
CONFESSION IS OBTAINED IT SUPPLIES WAYS OF VERIFYING ITS
TRUSTWORTHINESS.  IN THESE CASES BEFORE US THE VERIFICATION IS
SUFFICIENT TO LEAVE ME IN NO DOUBT THAT THE ADMISSIONS OF GUILT WERE
GENUINE AND TRUTHFUL.  SUCH CORROBORATION CONSISTS IN ONE CASE OF
FINDING A WEAPON WHERE THE ACCUSED HAS SAID HE HID IT, AND IN OTHERS
THAT CONDITIONS WHICH COULD ONLY HAVE BEEN KNOWN TO ONE WHO WAS
IMPLICATED CORRESPOND WITH HIS STORY.  IT IS POSSIBLE, BUT IT IS RARE,
THAT A CONFESSION, IF REPUDIATED ON THE TRIAL, STANDING ALONE WILL
CONVICT UNLESS THERE IS EXTERNAL PROOF OF ITS VERITY. 

IN ALL SUCH CASES, ALONG WITH OTHER CONDITIONS CRITICIZED, THE
CONTINUITY AND DURATION OF THE QUESTIONING IS INVOKED AND IT IS CALLED
AN "INQUIRY," "INQUEST" OR "INQUISITION," DEPENDING MAINLY ON THE
EMOTIONAL STATE OF THE WRITER.  BUT AS IN SOME OF THE CASES HERE, IF
INTERROGATION IS PERMISSIBLE AT ALL, THERE ARE SOUND REASONS FOR
PROLONGING IT - WHICH THE OPINIONS HERE IGNORE.  THE SUSPECT AT FIRST
PERHAPS MAKES AN EFFORT TO EXCULPATE HIMSELF BY ALIBIS OR OTHER
STATEMENTS.  THESE ARE VERIFIED, FOUND FALSE, AND HE IS THEN CONFRONTED
WITH HIS FALSEHOOD.  SOMETIMES (THOUGH SUCH CASES DO NOT REACH US)
VERIFICATION PROVES THEM TRUE OR CREDIBLE AND THE SUSPECT IS RELEASED. 
SOMETIMES, AS HERE, MORE THAN ONE CRIME IS INVOLVED.  THE DURATION OF
AN INTERROGATION MAY WELL DEPEND ON THE TEMPERAMENT, SHREWDNESS AND
CUNNING OF THE ACCUSED AND THE COMPETENCE OF THE EXAMINER.  BUT,
ASSUMING A RIGHT TO EXAMINE AT ALL, THE RIGHT MUST INCLUDE WHAT IS MADE
REASONABLY NECESSARY BY THE FACTS OF THE PARTICULAR CASE. 

IF THE RIGHT OF INTERROGATION BE ADMITTED, THEN IT SEEMS TO ME THAT
WE MUST LEAVE IT TO TRIAL JUDGES AND JURIES AND STATE APPELLATE COURTS
TO DECIDE INDIVIDUAL CASES, UNLESS THEY SHOW SOME WANT OF PROPER
STANDARDS OF DECISION.  I FIND NOTHING TO INDICATE THAT ANY OF THE
COURTS BELOW IN THESE CASES DID NOT HAVE A CORRECT UNDERSTANDING OF THE
FOURTEENTH AMENDMENT, UNLESS THIS COURT THINKS IT MEANS ABSOLUTE
PROHIBITION OF INTERROGATION WHILE IN CUSTODY BEFORE ARRAIGNMENT. 

I SUPPOSE NO ONE WOULD DOUBT THAT OUR CONSTITUTION AND BILL OF
RIGHTS, GROUNDED IN REVOLT AGAINST THE ARBITRARY MEASURES OF GEORGE III
AND IN THE PHILOSOPHY OF THE FRENCH REVOLUTION, REPRESENT THE MAXIMUM
RESTRICTIONS UPON THE POWER OF ORGANIZED SOCIETY OVER THE INDIVIDUAL
THAT ARE COMPATIBLE WITH THE MAINTENANCE OF ORGANIZED SOCIETY ITSELF. 
THEY WERE SO INTENDED AND SHOULD BE SO INTERPRETED.  IT CANNOT BE
DENIED THAT, EVEN IF CONSTRUED AS THESE PROVISIONS TRADITIONALLY HAVE
BEEN, THEY CONTAIN AN AGGREGATE OF RESTRICTIONS WHICH SERIOUSLY LIMIT
THE POWER OF SOCIETY TO SOLVE SUCH CRIMES AS CONFRONT US IN THESE
CASES.  THOSE RESTRICTIONS WE SHOULD NOT FOR THAT REASON CAST ASIDE,
BUT THAT IS GOOD REASON FOR INDULGING IN NO UNNECESSARY EXPANSION OF
THEM. 

I DOUBT VERY MUCH IF THEY REQUIRE US TO HOLD THAT THE STATE MAY NOT
TAKE INTO CUSTODY AND QUESTION ONE SUSPECTED REASONABLY OF AN
UNWITNESSED MURDER.  IF IT DOES, THE PEOPLE OF THIS COUNTRY MUST
DISCIPLINE THEMSELVES TO SEEING THEIR POLICE STAND BY HELPLESSLY WHILE
THOSE SUSPECTED OF MURDER PROWL ABOUT UNMOLESTED.  IS IT A NECESSARY
PRICE TO PAY FOR THE FAIRNESS WHICH WE KNOW AS "DUE PROCESS OF LAW"? 
AND IF NOT A NECESSARY ONE, SHOULD IT BE DEMANDED BY THIS COURT?  I DO
NOT KNOW THE ULTIMATE ANSWER TO THESE QUESTIONS; BUT, FOR THE PRESENT,
I SHOULD NOT INCREASE THE HANDICAP ON SOCIETY. 
..END :















TURNER V. PENNSYLVANIA, 338 U.S. 62 


NO. 107.  ARGUED NOVEMBER 16-17, 1948.  - DECIDED JUNE 27, 1949.  - 358
PA. 350, 58 A.2D 61, REVERSED. 


PETITIONER WAS ARRESTED ON SUSPICION AND HELD FOR FIVE DAYS WITHOUT
ARRAIGNMENT, WITHOUT THE AID OF COUNSEL OR FRIENDS AND WITHOUT BEING
ADVISED OF HIS CONSTITUTIONAL RIGHTS.  MEANWHILE, HE WAS INTERROGATED
BY RELAYS OF POLICE OFFICERS, SOMETIMES DURING BOTH THE DAY AND THE
NIGHT, UNTIL HE CONFESSED TO MURDER.  IT WAS ADMITTED THAT ARRAIGNMENT
WAS PURPOSELY DELAYED UNTIL A CONFESSION COULD BE OBTAINED.  AT HIS
TRIAL IN A STATE COURT, THE CONFESSION WAS ADMITTED IN EVIDENCE OVER
HIS OBJECTION AND HE WAS CONVICTED.  HELD:  THE USE AT THE TRIAL OF A
CONFESSION THUS OBTAINED VIOLATED THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT AND THE CONVICTION IS REVERSED.  WATTS V. INDIANA,
ANTE, P. 49.  PP. 63-66. 

TURNER V. PENNSYLVANIA. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

THE SUPREME COURT OF PENNSYLVANIA AFFIRMED PETITIONER'S CONVICTION
FOR MURDER, NOTWITHSTANDING HIS CLAIM THAT HIS CONFESSION WAS PROCURED
UNDER CIRCUMSTANCES RENDERING ITS ADMISSION IN EVIDENCE A DENIAL OF DUE
PROCESS OF LAW.  358 PA. 350, 58 A.2D 61.  THIS COURT GRANTED
CERTIORARI.  334 U.S. 858.  REVERSED, P. 66. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE JOIN. 

OUR RULING IN WATTS V. INDIANA, ANTE, P. 49, IS DECISIVE OF THE
PRESENT CASE.  IT IS ALSO A CAPITAL CASE IN WHICH THE PETITIONER CLAIMS
THAT HIS CONVICTION FOR FIRSTDEGREE MURDER RESULTED FROM THE USE OF
INCRIMINATORY STATEMENTS OBTAINED UNDER CIRCUMSTANCES WHICH SHOULD HAVE
BARRED THEIR ADMISSION.  THE SUPREME COURT OF PENNSYLVANIA, IN
AFFIRMING THE CONVICTION, REJECTED THIS CLAIM.  358 PA. 350, 58 A.2D
61.  WE BROUGHT THE CASE HERE TO MEASURE AGAINST THE REQUIREMENTS OF
DUE PROCESS THE CIRCUMSTANCES GIVING RISE TO THE CLAIM.  334 U.S. 858. 
AGAIN WE TAKE CONFLICTS OF TESTIMONY AS THEY WERE RESOLVED BY THE
STATE'S ADJUDICATION. 

FOR SIX MONTHS THE PHILADELPHIA POLICE HAD BEEN INVESTIGATING THE
FELONIOUS DEATH OF ONE FRANK ANDRES.  AT 10:30 IN THE MORNING OF JUNE
3, 1946, THEY ARRESTED AARON TURNER, THE PETITIONER, ON SUSPICION OF
THE HOMICIDE AND TOOK HIM TO THE OFFICE OF THE HOMICIDE DIVISION AT THE
CITY HALL BUILDING.  THE OFFICERS MAKING THE ARREST HAD NO WARRANT AND
DID NOT TELL THE PETITIONER WHY HE WAS BEING ARRESTED.  THESE OFFICERS
BEGAN TO QUESTION THE PETITIONER AS SOON AS THEY REACHED THE CITY HALL
POLICE STATION.  ONE OF THEM EXAMINED THE PETITIONER FOR THREE HOURS ON
THAT AFTERNOON AND AGAIN THAT NIGHT FROM EIGHT TO ELEVEN O'CLOCK.  FROM
TIME TO TIME OTHER OFFICERS JOINED IN THE INTERROGATION.  PETITIONER
PERSISTENTLY DENIED ANY KNOWLEDGE OF THE MURDER. 

THE NEXT MORNING, JUNE 4, THE PETITIONER WAS BOOKED ON THE POLICE
RECORDS AS BEING HELD FOR QUESTIONING.  LATER THAT DAY HE WAS
QUESTIONED FOR ABOUT FOUR HOURS MORE.  ON JUNE 5 HE WAS INTERROGATED
FOR ANOTHER FOUR HOURS AND ON THE 6TH FOR DAY AND NIGHT SESSIONS
TOTALING SIX HOURS.  THE QUESTIONING WAS CONDUCTED SOMETIMES BY ONE
OFFICER AND AT OTHER TIMES BY SEVERAL WORKING TOGETHER; IT APPEARS, IN
FACT, THAT WHENEVER ONE OF THE POLICE OFFICERS INTERESTED IN THE
INVESTIGATION HAD ANY FREE TIME HE WOULD HAVE THE PETITIONER BROUGHT
FROM HIS CELL FOR QUESTIONING. 

ON JUNE 7, THE DAY WHEN A CONFESSION WAS FINALLY OBTAINED,
QUESTIONING BEGAN IN THE AFTERNOON AND CONTINUED FOR THREE HOURS. 
LATER THAT DAY THE OFFICERS WHO HAD BEEN PRESENT DURING THE AFTERNOON
RETURNED WITH OTHERS TO RESUME THE EXAMINATION OF PETITIONER.  DESPITE
THE FACT THAT HE WAS FALSELY TOLD THAT OTHER SUSPECTS HAD "OPENED UP"
ON HIM, PETITIONER REPEATEDLY DENIED GUILT.  BUT FINALLY, AT ABOUT
ELEVEN O'CLOCK, PETITIONER STATED THAT HE HAD KILLED THE PERSON FOR
WHOSE MURDER HE WAS LATER ARRAIGNED.  AT NINE O'CLOCK THE FOLLOWING
MORNING THE SAME POLICE OFFICERS STARTED TO REDUCE HIS STATEMENT TO
WRITING, INTERRUPTED THIS PROCESS TO BRING HIM FOR A PRELIMINARY
HEARING BEFORE A MAGISTRATE SITTING IN THE SAME BUILDING, AND RETURNED
TO THE TRANSCRIPT OF HIS STATEMENT WHICH WAS COMPLETED BY ABOUT NOON. 

THE PETITIONER WAS NOT PERMITTED TO SEE FRIENDS OR RELATIVES DURING
THE ENTIRE PERIOD OF CUSTODY; HE WAS NOT INFORMED FORMED OF HIS RIGHT
TO REMAIN SILENT UNTIL AFTER HE HAD BEEN UNDER THE PRESSURE OF A LONG
PROCESS OF INTERROGATION AND HAD ACTUALLY YIELDED TO IT.  WITH
COMMENDABLE CANDOR THE DISTRICT ATTORNEY ADMITTED THAT A HEARING WAS
WITHHELD UNTIL INTERROGATION HAD PRODUCED CONFESSION.  THE DELAY OF
FIVE DAYS THUS ACCOUNTED FOR WAS IN VIOLATION OF A PENNSYLVANIA STATUTE
WHICH REQUIRES THAT ARRESTED PERSONS BE GIVEN A PROMPT PRELIMINARY
HEARING. 

AT THE TRIAL, PETITIONER OBJECTED TO THE INTRODUCTION OF HIS
STATEMENT ON THE GROUND THAT IT WAS THE PRODUCT OF POLICE CONDUCT OF A
NATURE CONDEMNED BY OUR PREVIOUS CASES.  THE TRIAL JUDGE OVERRULED
PETITIONER'S OBJECTION TO THE USE OF THE CONFESSION BUT TOLD THE JURY
TO DISREGARD IT IF THEY FOUND IT TO HAVE BEEN INVOLUNTARY.  HE ALSO
TOLD THEM THAT IT WAS COMMON SENSE "NOT (TO) SEND THEM (SUSPECTS) TO
THE MAGISTRATE BEFORE YOU HAVE SUFFICIENT INFORMATION TO HOLD AN
ALLEGED CULPRIT FOR THE GRAND JURY."  HE REFUSED TO CHARGE THAT IN
CONSIDERING THE VOLUNTARINESS OF THE CONFESSION THE PROLONGED
INTERROGATION SHOULD BE CONSIDERED. 

THE JURY RETURNED A VERDICT OF GUILTY AND RECOMMENDED THE DEATH
PENALTY.  THE SUPREME COURT OF PENNSYLVANIA AFFIRMED THE CONVICTION IN
AN OPINION STRESSING THE PROBABLE GUILT OF THE PETITIONER AND ASSUMING
THAT THE ALTERNATIVES BEFORE IT WERE EITHER TO APPROVE THE CONDUCT OF
THE POLICE OR TO TURN THE PETITIONER "LOOSE UPON (SOCIETY) AFTER HE HAS
CONFESSED HIS GUILT."  358 PA. AT 367. 

PUTTING THIS CASE BESIDE THE CONSIDERATIONS SET FORTH IN OUR OPINION
IN WATTS V. INDIANA, ANTE, P. 49, LEAVES OPEN NO OTHER POSSIBLE
CONCLUSION THAN THAT PETITIONER'S CONFESSION WAS OBTAINED UNDER
CIRCUMSTANCES WHICH MADE ITS USE AT THE TRIAL A DENIAL OF DUE PROCESS. 
WE MUST, ACCORDINGLY, REVERSE THE JUDGMENT AND REMAND THE CASE. 

THERE REMAINS, HOWEVER, AN ADDITIONAL COMPLICATION.  THE POLICE
ARRESTED TWO OTHER MEN, JOHNSON AND LOFTON, WHO WERE SUSPECTED AS CO
PRINCIPALS WITH TURNER IN THE ANDRES MURDER.  THESE TWO ALSO MADE
CONFESSIONS INVOLVING TURNER AS WELL AS THEMSELVES.  TURNER SIGNED
THEIR CONFESSIONS AND THEY WERE INTRODUCED AGAINST HIM AT THE TRIAL. 
SINCE A NEW TRIAL IS CALLED FOR, ISSUES RAISED BY THESE CONFESSIONS
CALL FOR NOTICE. 

CLEARLY THE SAME CONSIDERATIONS THAT BAR ADMISSION OF THE CONFESSION
BY TURNER MADE OVER HIS OWN NAME EXTEND TO HIS CONTEMPORANEOUS ADOPTION
OF THE JOHNSON AND LOFTON CONFESSIONS.  BUT THESE STATEMENTS MAY BE
INTRODUCED NOT AS HIS OWN CONFESSIONS BUT AS CONFESSIONS BY CO
PRINCIPALS.  IN THAT EVENT PENNSYLVANIA MAY, AS A MATTER OF LOCAL
EVIDENTIARY LAW, HOLD THAT THE HEARSAY RULE REQUIRES THE EXCLUSION OF
STATEMENTS BY CO-PRINCIPALS NOT ON TRIAL.  ASSUMING, HOWEVER, THAT AS A
MATTER OF LOCAL LAW THESE STATEMENTS ARE ADMISSIBLE, THERE WOULD THEN
ARISE THE QUESTION WHETHER UNDER THE FOURTEENTH AMENDMENT A COERCED
STATEMENT MAY BE EXCLUDED ON OBJECTION OF ONE NOT COERCED INTO MAKING
IT.  AT THIS STAGE, HOWEVER, THIS IS A WHOLLY HYPOTHETICAL QUESTION
WHICH, AS A CONSTITUTIONAL ISSUE, WE OUGHT NOT HYPOTHETICALLY TO
ANSWER.  WE COULD NOT ANSWER IT, IN ANY EVENT, WITHOUT KNOWLEDGE THAT
JOHNSON'S AND LOFTON'S CONFESSIONS WERE ALSO COERCED, AND THE FACTS
NECESSARY TO THAT DETERMINATION ARE NOT BEFORE US. 

SUCH OTHER CONTENTIONS AS THE USE OF STATEMENTS MADE AT A
MAGISTRATE'S HEARING WHEN THE ACCUSED HAD NO COUNSEL MAY BE DISPOSED OF
BY PENNSYLVANIA CASES, OR FOR OTHER REASONS MAY FAIL TO ARISE ON
RETRIAL OF THE CASE.  SEE, E.G., COMMONWEALTH V. LENOUSKY, 206 PA. 277,
55 A. 977, CITED WITH APPROVAL IN COMMONWEALTH V. WESTWOOD, 324 PA.
289, 188 A. 304.  REVERSED. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT ON THE AUTHORITY OF
CHAMBERS V. FLORIDA, 309 U.S. 227; ASHCRAFT V. TENNESSEE, 322 U.S.
143. 

ON THE RECORD BEFORE US AND IN VIEW OF THE CONSIDERATION GIVEN TO THE
EVIDENCE BY THE STATE COURTS AND THE CONCLUSION REACHED, THE CHIEF
JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON BELIEVE THAT THE
JUDGMENT SHOULD BE AFFIRMED. 

(SEE ANTE, P. 57, FOR OPINION OF MR. JUSTICE JACKSON, CONCURRING IN
THE RESULT IN NO. 610, WATTS V. INDIANA, ANTE, P. 49, AND DISSENTING IN
THIS CASE AND IN NO. 76, HARRIS V. SOUTH CAROLINA, POST, P. 68.) 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE UNDISPUTED FACTS SURROUNDING THE ARREST AND CONFESSION OF THE
PETITIONER IN THIS CASE ARE AS FOLLOWS: 

PETITIONER WAS ARRESTED JUNE 3, 1946, ON SUSPICION OF COMMITTING A
HOMICIDE ABOUT SIX MONTHS AFTER THE CRIME HAD BEEN COMMITTED.  AT THE
TIME OF HIS ARREST HE WAS NOT TAKEN BEFORE A COMMITTING MAGISTRATE, AS
REQUIRED BY PENNSYLVANIA LAW.  HE WAS HELD FIVE DAYS BEFORE BEING
LAWFULLY COMMITTED TO CUSTODY.  DURING THIS CONFINEMENT HE DID NOT HAVE
THE AID OF FAMILY, FRIENDS, OR COUNSEL.  HE WAS NOT INFORMED OF HIS
CONSTITUTIONAL RIGHTS AT THE OUTSET OF HIS DETENTION. 

DURING THIS CONFINEMENT PETITIONER WAS SUBJECT TO CONTINUAL
INTERROGATIONS BY A NUMBER OF POLICE OFFICERS, WHO QUESTIONED HIM
INDIVIDUALLY AND IN SMALL GROUPS.  THE DAY OF HIS ARREST HE WAS
QUESTIONED ABOUT THREE HOURS IN THE AFTERNOON AND AGAIN IN THE
EVENING.  THE NEXT TWO DAYS HE WAS QUESTIONED THREE TO FOUR HOURS IN
THE AFTERNOON.  THE NEXT DAY THE QUESTIONING WAS INTENSIFIED AND HE WAS
AGAIN SUBJECTED TO BOTH DAY AND EVENING SESSIONS.  ON THE 7TH OF JUNE,
THE DAY HE FINALLY CONFESSED, THE INTERROGATIONS WERE INTENSIVE, ONCE
AGAIN BEING HELD AFTERNOON AND EVENING.  PETITIONER DENIED HIS GUILT,
EVEN AFTER BEING INFORMED THAT OTHER SUSPECTS HAD ISSUED STATEMENTS
INCRIMINATING HIM.  ABOUT ELEVEN O'CLOCK IN THE EVENING, AFTER THREE
HOURS OF INTERROGATION, PETITIONER FINALLY INDICATED THAT HE WISHED TO
MAKE A STATEMENT.  THIS CONFESSION WAS SET DOWN ON PAPER THE NEXT DAY,
AND PETITIONER SIGNED IT AFTER HE HAD BEEN COMMITTED BY A MAGISTRATE. 

THESE INTERROGATIONS HAD BEEN CONDUCTED BY AT LEAST SEVEN DIFFERENT
OFFICERS.  THEY WERE CONDUCTED IN PETITIONER'S CELL, IN A SMALL OFFICE,
AND IN A ROOM WHICH HAD A STAND-UP SCREEN WHERE SUSPECTS WERE PUT FOR
IDENTIFICATION.  IT WAS ADMITTED THAT THE REASON PETITIONER WAS NOT
BROUGHT BEFORE A MAGISTRATE WAS BECAUSE HE HAD NOT GIVEN THE ANSWERS
WHICH THE POLICE WANTED AND WHICH THEY BELIEVED HE COULD GIVE. 

THE CASE IS BUT ANOTHER VIVID ILLUSTRATION OF THE USE OF ILLEGAL
DETENTIONS TO EXACT CONFESSIONS.  IT IS GOVERNED BY WATTS V. INDIANA,
ANTE, P. 49, DECIDED THIS DAY. 
..END :













HARRIS V. SOUTH CAROLINA, 338 U.S. 68 


NO. 76.  ARGUED NOVEMBER 16, 1948.  - DECIDED JUNE 27, 1949.  - 212 S.C.
124, 46 S.E.2D 682, REVERSED. 


SUSPECTED OF MURDER IN SOUTH CAROLINA, PETITIONER, AN ILLITERATE
NEGRO, WAS ARRESTED IN TENNESSEE ON FRIDAY AND TAKEN TO SOUTH CAROLINA
ON SUNDAY.  THE SOUTH CAROLINA SHERIFF HAD OBTAINED A WARRANT FOR HIS
ARREST FOR THEFT OF A PISTOL, BUT IT WAS NOT READ TO HIM NOR WAS HE
INFORMED OF THE CHARGE AGAINST HIM.  CONFINED IN A SMALL HOT ROOM, HE
WAS INTERROGATED DAILY AND NIGHTLY BY RELAYS OF POLICE OFFICERS UNTIL
HE CONFESSED TO THE MURDER ON WEDNESDAY NIGHT, AFTER THE POLICE HAD
THREATENED TO ARREST HIS MOTHER.  MEANWHILE, HE WAS DENIED COUNSEL AND
ACCESS TO FAMILY AND FRIENDS, WAS NOT GIVEN A PRELIMINARY HEARING, AND
WAS NOT INFORMED OF HIS CONSTITUTIONAL RIGHTS.  AT HIS TRIAL IN A STATE
COURT, THE CONFESSION WAS ADMITTED IN EVIDENCE OVER HIS OBJECTION AND
HE WAS CONVICTED.  HELD:  THE USE OF A CONFESSION OBTAINED IN THIS
MANNER VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND
THE CONVICTION IS REVERSED.  WATTS V. INDIANA, ANTE, P. 49; TURNER V.
PENNSYLVANIA, ANTE, P. 62.  PP. 68-71. 

HARRIS V. SOUTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 

THE SUPREME COURT OF SOUTH CAROLINA AFFIRMED PETITIONER'S CONVICTION
FOR MURDER, NOTWITHSTANDING HIS CLAIM THAT HIS CONFESSION WAS OBTAINED
UNDER CIRCUMSTANCES RENDERING ITS ADMISSION IN EVIDENCE A DENIAL OF DUE
PROCESS OF LAW.  212 S.C. 124, 46 S.E.2D 682.  THIS COURT GRANTED
CERTIORARI.  334 U.S. 837.  REVERSED, P. 71. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE JOIN. 

ON SUNDAY MORNING, APRIL 28, 1946, EDWARD L. BENNETT AND HIS WIFE
WERE KILLED IN THEIR STORE IN AIKEN COUNTY, SOUTH CAROLINA.  BENNETT'S
LAST WORDS WERE, "A BIG NEGRO SHOT ME AND ROBBED ME."  PETITIONER,
HARRIS, AGE TWENTY-FIVE, A SLIGHTLY BUILT NEGRO, WAS SUBSEQUENTLY
INDICTED IN THE COURT OF GENERAL SESSIONS FOR AIKEN COUNTY AND FOUND
GUILTY OF THE MURDER OF THE BENNETTS.  THE JURY'S VERDICT REQUIRED
IMPOSITION OF THE DEATH SENTENCE.  THE SUPREME COURT OF SOUTH CAROLINA
DENIED THE CLAIM THAT A CONFESSION INTRODUCED AT THE TRIAL WAS OBTAINED
UNDER CIRCUMSTANCES WHICH PRECLUDED ITS ADMISSION UNDER THE DUE PROCESS
CLAUSE AND SUSTAINED THE CONVICTION, 212 S.C. 124, 46 S.E.2D 682, BY A
3-2 VOTE, TWO JUDGES DISSENTING ON THE GROUND THAT THE FACTS SHOW THAT
THE CONFESSION "WAS NOT FREELY AND VOLUNTARILY MADE."  WE BROUGHT THE
CASE HERE TO CONSIDER THE VALIDITY OF THIS CLAIM.  334 U.S. 837. 

WHEN THE DISPUTED TESTIMONY IS RESOLVED IN FAVOR OF THE STATE, THE
FOLLOWING FACTS EMERGE: 

THE POLICE OF AIKEN COUNTY SPENT TWO AND A HALF MONTHS IN FRUITLESS
INVESTIGATION OF THE MURDERS.  MANY SUSPECTS HAD BEEN HELD FOR
INTERROGATION AND THEN RELEASED.  SUSPICION WAS FINALLY DIRECTED TOWARD
PETITIONER BY REPORTS THAT HE POSSESSED A PISTOL AND HAD LEFT FOR
NASHVILLE, TENNESSEE, SOON AFTER THE MURDERS.  THE SHERIFF OF AIKEN
COUNTY THEN OBTAINED A WARRANT, OSTENSIBLY FOR THE PURPOSE OF ARRESTING
PETITIONER FOR THE THEFT OF HIS AUNT'S PISTOL BUT ACTUALLY TO SECURE
HIS RETURN FROM NASHVILLE.  HE WAS TAKEN INTO CUSTODY THERE ON FRIDAY,
JULY 12, 1946.  NO WARRANT WAS READ TO HIM AND HE WAS NOT INFORMED OF
THE CHARGE AGAINST HIM.  HE WAS BROUGHT BACK TO AIKEN COUNTY AND LODGED
IN ITS JAIL ON SUNDAY AFTERNOON AT ABOUT FOUR O'CLOCK.  HE FIRST
LEARNED THAT HE WAS SUSPECTED OF THE MURDER OF BENNETT ON MONDAY
AFTERNOON.  HE DENIED THE ACCUSATION.  AT THAT TIME HE WAS BRIEFLY
INTERROGATED BY THE SHERIFF AND THE JAILER. 

ON MONDAY NIGHT QUESTIONING BEGAN IN EARNEST.  AT LEAST FIVE OFFICERS
WORKED IN RELAYS, RELIEVING EACH OTHER FROM TIME TO TIME TO PERMIT
RESPITE FROM THE STIFLING HEAT OF THE CUBICLE IN WHICH THE
INTERROGATION WAS CONDUCTED.  THROUGHOUT THE EVENING PETITIONER DENIED
THAT HE HAD KILLED THE BENNETTS.  ON TUESDAY THE QUESTIONING CONTINUED
UNDER THE SAME CONDITIONS FROM 1:30 IN THE AFTERNOON UNTIL PAST ONE THE
FOLLOWING MORNING WITH ONLY AN HOUR'S INTERVAL AT 5:30.  ON WEDNESDAY
AFTERNOON THE CHIEF OF THE STATE CONSTABULARY, WITH HALF A DOZEN OF HIS
MEN, QUESTIONED PETITIONER FOR ABOUT AN HOUR, AND THE LOCAL AUTHORITIES
CARRIED ON THE INTERROGATION FOR THREE AND A HALF HOURS LONGER.  AT
6:30 THAT EVENING THE EXAMINATION RESUMED.  PETITIONER CONTINUED TO
DENY IMPLICATION IN THE KILLINGS.  THE SHERIFF THEN THREATENED TO
ARREST PETITIONER'S MOTHER FOR HANDLING STOLEN PROPERTY.  PETITIONER
REPLIED, "DON'T GET MY MOTHER MIXED UP IN IT AND I WILL TELL YOU THE
TRUTH."  PETITIONER THEN STATED IN SUBSTANCE WHAT APPEARS IN THE
CONFESSION INTRODUCED AT THE TRIAL.  THE SESSION ENDED AT MIDNIGHT. 

PETITIONER WAS NOT INFORMED OF HIS RIGHTS UNDER SOUTH CAROLINA LAW,
SUCH AS THE RIGHT TO SECURE A LAWYER, THE RIGHT TO REQUEST A
PRELIMINARY HEARING, OR THE RIGHT TO REMAIN SILENT.  NO PRELIMINARY
HEARING WAS EVER GIVEN AND HIS CONFESSION DOES NOT EVEN CONTAIN THE
USUAL STATEMENT THAT HE WAS TOLD THAT WHAT HE SAID MIGHT BE USED
AGAINST HIM.  DURING THE WHOLE PERIOD OF INTERROGATION HE WAS DENIED
THE BENEFIT OF CONSULTATION WITH FAMILY AND FRIENDS AND WAS SURROUNDED
BY AS MANY AS A DOZEN MEMBERS OF A DOMINANT GROUP IN POSITIONS OF
AUTHORITY.  IT IS RELEVANT TO NOTE THAT HARRIS WAS AN ILLITERATE. 

THE TRIAL JUDGE IN HIS CHARGE TOLD THE JURY THAT WITHOUT THE
CONFESSION THERE WAS NO EVIDENCE WHICH WOULD SUPPORT A CONVICTION AND
INSTRUCTED THEM THAT THEY COULD CONSIDER THE CONFESSION ONLY IF THEY
FOUND IT TO HAVE BEEN "VOLUNTARY."  UPON APPEAL, THE HIGHEST COURT OF
THE STATE MADE A CONSCIENTIOUS EFFORT TO MEASURE THE CIRCUMSTANCES
UNDER WHICH PETITIONER'S CONFESSION WAS MADE AGAINST THE CIRCUMSTANCES
SURROUNDING CONFESSIONS WHICH WE HAVE HELD TO BE THE PRODUCT OF UNDUE
PRESSURE.  IT CONCLUDED THAT THIS CONFESSION WAS NOT SO TAINTED.  WE
ARE CONSTRAINED TO DISAGREE.  THE SYSTEMATIC PERSISTENCE OF
INTERROGATION, THE LENGTH OF THE PERIODS OF QUESTIONING, THE FAILURE TO
ADVISE THE PETITIONER OF HIS RIGHTS, THE ABSENCE OF FRIENDS OR
DISINTERESTED PERSONS, AND THE CHARACTER OF THE DEFENDANT CONSTITUTE A
COMPLEX OF CIRCUMSTANCES WHICH INVOKES THE SAME CONSIDERATIONS WHICH
COMPELLED OUR DECISIONS IN WATTS V. INDIANA, ANTE, P. 49, AND TURNER V.
PENNSYLVANIA, ANTE, P. 62.  THE JUDGMENT IS ACCORDINGLY REVERSED. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT ON THE AUTHORITY OF
CHAMBERS V. FLORIDA, 309 U.S. 227; ASHCRAFT V. TENNESSEE, 322 U.S.
143. 

ON THE RECORD BEFORE US AND IN VIEW OF THE CONSIDERATION GIVEN TO THE
EVIDENCE BY THE STATE COURTS AND THE CONCLUSION REACHED, THE CHIEF
JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON BELIEVE THAT THE
JUDGMENT SHOULD BE AFFIRMED. 

(SEE ANTE, P. 57, FOR OPINION OF MR. JUSTICE JACKSON, CONCURRING IN
THE RESULT IN NO. 610, WATTS V. INDIANA, ANTE, P. 49, AND DISSENTING IN
THIS CASE AND IN NO. 107, TURNER V. PENNSYLVANIA, ANTE, P. 62.) 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE UNDISPUTED FACTS CONCERNING THE ARREST AND INTERROGATION OF THE
PETITIONER ARE AS FOLLOWS: 

A STOREKEEPER AND HIS WIFE WERE KILLED IN AIKEN, SOUTH CAROLINA.  THE
KILLING SEEMED SIMILAR TO OTHER CRIMES WHICH HAD BEEN COMMITTED IN THE
COMMUNITY AND WHICH CONSTITUTED A LOCAL CRIME WAVE.  LOCAL FEELING WAS
RUNNING HIGH AND THE SHERIFF'S OFFICE WAS ANXIOUS TO FIND A SOLUTION. 
NUMEROUS PERSONS WERE INTERROGATED.  NEARLY THREE MONTHS LATER
SUSPICION FELL ON PETITIONER, BECAUSE IT BECAME KNOWN THAT HE POSSESSED
A PISTOL AND HAD LEFT THE COMMUNITY FOR NASHVILLE, TENNESSEE, SHORTLY
AFTER THE MURDER HAD OCCURRED.  THE SHERIFF SECURED A WARRANT OF ARREST
FOR THE PETITIONER, ALLEGEDLY FOR POSSESSING A STOLEN PISTOL.  THE
AUTHORITIES IN NASHVILLE WERE NOTIFIED THAT PETITIONER WAS WANTED, AND
HE WAS PICKED UP THERE AND PLACED IN CUSTODY ON A FRIDAY.  ON THE NEXT
SUNDAY HE WAS DELIVERED TO THE SOUTH CAROLINA OFFICERS.  HE WAS NOT
READ THE WARRANT OF ARREST, NOR WAS HE INFORMED THAT HE WAS SUSPECTED
OF HAVING COMMITTED THE MURDER WITH WHICH HE WAS LATER CHARGED AND NOW
STANDS CONVICTED.  WHILE HANDCUFFED, HE WAS DRIVEN BACK TO AIKEN AND
LODGED IN THE AIKEN JAIL LATE THAT AFTERNOON WITHOUT BEING BROUGHT
BEFORE A MAGISTRATE.  THAT WAS SUNDAY.  IT WAS NOT UNTIL MONDAY
AFTERNOON THAT HE WAS INFORMED THAT HE WAS UNDER SUSPICION OF HAVING
COMMITTED THE MURDER.  HE WAS QUESTIONED A SHORT TIME.  HE DENIED HIS
GUILT.  A MORE EXTENDED QUESTIONING WAS HELD THAT NIGHT.  THE NEXT DAY,
TUESDAY, THE VIGOR OF THE QUESTIONING WAS INCREASED.  PETITIONER WAS
INTERROGATED IN THE AFTERNOON AND AGAIN IN THE EVENING UNTIL AROUND
MIDNIGHT.  IT WAS DURING THIS SESSION THAT TWO INCIDENTS OCCURRED. 
PETITIONER HAD DENIED HIS GUILT, BUT FINALLY MADE A STATEMENT
IMPLICATING ANOTHER NEGRO, WHO DENIED GUILT WHEN CONFRONTED WITH THE
ACCUSATION.  IT WAS ALSO ON TUESDAY EVENING THAT ONE OF THE OFFICERS
LAID A HAND ON THE PETITIONER.  SHARP ISSUE IS TAKEN ON THE NATURE OF
THIS ACT.  PETITIONER CONTENDS THAT HE WAS STRUCK WITH FORCE.  THE
OFFICER TESTIFIED THAT HE MERELY PLACED HIS HAND ON PETITIONER'S
SHOULDER WITH NO MALICE AND THAT HE MERELY STATED THAT HE DID NOT
BELIEVE CERTAIN STATEMENTS THAT THE PETITIONER HAD MADE. 

ON WEDNESDAY AFTERNOON THE QUESTIONING WAS BEGUN AGAIN.  PETITIONER
STILL DENIED GUILT.  WEDNESDAY EVENING HE FINALLY BROKE.  THE SHERIFF
WAS ALONE WITH PETITIONER LATE AT NIGHT.  HE THREATENED TO HAVE
PETITIONER'S MOTHER ARRESTED FOR HAVING STOLEN PROPERTY.  IT WAS THEN
THAT PETITIONER OFFERED TO MAKE THE CONFESSION THAT WAS EVENTUALLY USED
AGAINST HIM.  PETITIONER MADE HIS CONFESSION, AND HE WAS THEN REMOVED
TO THE STATE PENITENTIARY FOR PROTECTION. 

THESE INTERROGATIONS HAD BEEN HELD IN A SMALL ROOM EIGHT FEET BY
ELEVEN.  SMALL GROUPS OF DIFFERENT OFFICERS CONDUCTED THESE
INTERROGATIONS, WHICH WENT ON AND ON IN THE HEAT OF THE DAYS AND
NIGHTS.  BUT DURING THIS TIME HE WAS DENIED COUNSEL AND ACCESS TO
FAMILY AND FRIENDS. 

THIS IS ANOTHER ILLUSTRATION OF THE USE BY THE POLICE OF THE CUSTODY
OF AN ACCUSED TO WRING A CONFESSION FROM HIM.  THE CONFESSION SO
OBTAINED FROM LITERATE AND ILLITERATE ALIKE SHOULD STAND CONDEMNED. 
SEE HALEY V. OHIO, 332 U.S. 596. 
..END :






LUSTIG V. UNITED STATES, 338 U.S. 74 


NO. 1389, OCT. TERM, 1946.  ARGUED APRIL 19, 1948.  - REARGUED OCTOBER
19, 1948.  - DECIDED JUNE 27, 1949.  - 159 F.2D 798, REVERSED. 


NOTIFIED BY CITY POLICE AND A HOTEL MANAGER THAT COUNTERFEITING OF
CURRENCY APPARENTLY WAS BEING CARRIED ON IN A HOTEL ROOM FOR WHICH
PETITIONER AND ANOTHER WERE REGISTERED UNDER ASSUMED NAMES, A SECRET
SERVICE AGENT WENT THERE AND LOOKED THROUGH THE KEYHOLE.  HE REPORTED
TO THE CITY POLICE THAT HE SAW NO EVIDENCE OF CURRENCY COUNTERFEITING
BUT THAT HE WAS CONFIDENT THAT "SOMETHING WAS GOING ON."  SUSPECTING
THAT THE OCCUPANTS WERE COUNTERFEITING RACE-TRACK TICKETS AND DESIRING
TO "GET INTO THAT ROOM AND FIND OUT WHAT WAS IN THERE," CITY POLICE
OBTAINED WARRANTS FOR THEIR ARREST FOR VIOLATIONS OF A CITY ORDINANCE
REQUIRING "KNOWN CRIMINALS" TO REGISTER WITH THE POLICE; ENTERED THE
ROOM IN THEIR ABSENCE; SEARCHED IT; AND FOUND EVIDENCE OF CURRENCY
COUNTERFEITING.  THE SECRET SERVICE AGENT WAS NOT PRESENT WHEN THIS
TOOK PLACE; BUT HE ARRIVED LATER, EXAMINED THE EVIDENCE, AND WAS
PRESENT WHEN PETITIONER AND HIS COMPANION ARRIVED AND WERE ARRESTED AND
SEARCHED BY CITY POLICE, WHO TURNED THE ARTICLES EVIDENCING
COUNTERFEITING OF CURRENCY OVER TO THE SECRET SERVICE AGENT.  THIS
EVIDENCE WAS ADMITTED OVER PETITIONER'S OBJECTION IN HIS TRIAL IN A
FEDERAL COURT AND HE WAS CONVICTED FOR COUNTERFEITING.  HELD:  THIS
EVIDENCE SHOULD NOT HAVE BEEN ADMITTED AND THE CONVICTION IS REVERSED. 
PP. 75-80. 

LUSTIG V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

PETITIONER'S CONVICTION OF COUNTERFEITING WAS AFFIRMED BY THE COURT
OF APPEALS.  159 F.2D 798.  THIS COURT DENIED CERTIORARI, 331 U.S. 853,
BUT, ON REHEARING, VACATED THAT ORDER AND GRANTED CERTIORARI.  333 U.S.
835.  REVERSED, P. 80. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR.
JUSTICE RUTLEDGE JOIN. 

THIS IS A PROSECUTION UNDER THE COUNTERFEITING STATUTES.  REV. STAT.
SEC. 5430, 35 STAT. 1088, 1116, 18 U.S.C. (1946 ED.)  SEC.  264(NOW
SEC. 474).  THE SOLE QUESTION BEFORE US IS THE CORRECTNESS OF THE
DENIAL OF A PRETRIAL MOTION, SUSTAINED BY THE COURT OF APPEALS FOR THE
THIRD CIRCUIT, 159 F.2D 798, TO SUPPRESS EVIDENCE CLAIMED TO HAVE BEEN
SEIZED IN CONTRAVENTION OF THE FOURTH AMENDMENT AS IT IS TO BE APPLIED
UNDER THE DOCTRINE OF BYARS V. UNITED STATES, 273 U.S. 28.  FN1 

SINCE THE LEGAL ISSUE TURNS ON THE PRECISE CIRCUMSTANCES OF THIS CASE
THEY MUST BE STATED WITH PARTICULARITY. 

AT ABOUT 2 P.M. ON SUNDAY, MARCH 10, 1946, SECRET SERVICE AGENT
GREENE RECEIVED TWO TELEPHONE CALLS, ONE FROM THE POLICE OF CAMDEN, NEW
JERSEY, THE OTHER FROM THE MANAGER OF A HOTEL IN THAT CITY, INDICATING
VIOLATIONS OF THE COUNTERFEITING STATUTES BEING CARRIED ON IN ROOM 402
OF THE HOTEL.  LUSTIG, THE PETITIONER HERE, AND ONE REYNOLDS WERE
REGISTERED FOR THIS ROOM UNDER ASSUMED NAMES.  IT IS TO BE NOTED THAT
THE SECRET SERVICE IS THE AGENCY OF THE GOVERNMENT CHARGED WITH
ENFORCEMENT OF THE LAWS PERTAINING TO COUNTERFEITING.  ON LOOKING
THROUGH THE KEYHOLE OF THE SUSPECT ROOM AFTER REACHING THE HOTEL,
GREENE SAW LUSTIG, TWO BRIEF CASES AND A LARGE SUITCASE, BUT NO
EVIDENCE PERTINENT TO COUNTERFEITING.  HE QUESTIONED THE CHAMBERMAID
WHOSE SUSPICIONS HAD LED TO THIS INVESTIGATION.  SHE RECOUNTED THE
HEARING OF NOISES "LIKE GLASS HITTING AGAINST GLASS OR METAL HITTING
AGAINST METAL" EMANATING FROM THE SUSPECT ROOM.  SHE ALSO REMARKED THAT
SHE HAD SEEN WHAT LOOKED LIKE MONEY ON THE TABLE. 

GREENE THEREUPON REPORTED TO DETECTIVE ARTHUR OF THE CAMDEN POLICE AT
THE CAMDEN POLICE STATION THAT HE HAD SEEN NO EVIDENCE OF
COUNTERFEITING BUT WAS CONFIDENT THAT "SOMETHING WAS GOING ON."  ARTHUR
REPORTED THE AFFAIR BY TELEPHONE TO HIS SUPERIOR, CAPTAIN KOERNER, AT
HIS HOME, WHO THEN CAME TO THE POLICE STATION.  IN HIS ACCOUNT OF THE
AFFAIR, GREENE GAVE TO KOERNER THE NAMES UNDER WHICH THE OCCUPANTS OF
THE ROOM HAD REGISTERED.  IN REPLY TO INQUIRY BY CAPTAIN KOERNER,
SERGEANT MURPHY OF THE CAMDEN POLICE STATED THAT ONE OF THE NAMES WAS
THAT OF A "RACEHORSE MAN OR A TOUT OR A BOOKIE."  AFTER VERIFYING THE
NAMES ON THE HOTEL REGISTER AND ON THE ASSUMPTION THAT THE OCCUPANTS OF
THE ROOM "MIGHT BE TRYING TO COUNTERFEIT RACE-TRACK TICKETS" RATHER
THAN CURRENCY, KOERNER SECURED WARRANTS FOR THE ARREST OF PERSONS
BEARING THE NAMES ON THE REGISTER IN ORDER TO "GET INTO THAT ROOM AND
FIND OUT WHAT WAS IN THERE."  THE OFFENSE CHARGED AGAINST THOSE BEARING
THE ASSUMED NAMES WAS THE VIOLATION OF A CAMDEN ORDINANCE REQUIRING
"KNOWN CRIMINALS" TO REGISTER WITH THE LOCAL POLICE WITHIN TWENTY-FOUR
HOURS AFTER THEIR ARRIVAL IN TOWN.  AT ABOUT FOUR O'CLOCK IN THE
AFTERNOON OF THE SAME DAY, KOERNER AND THREE CITY DETECTIVES SECURED A
KEY FROM THE MANAGER OF THE HOTEL AND ENTERED ROOM 402.  THE POLICE
OFFICERS PROCEEDED TO EMPTY THE BAGS AND THE DRAWERS OF A BUREAU AND
THUS CAME UPON THE EVIDENCE SOUGHT TO BE SUPPRESSED.  WHAT THEY FOUND
INDICATED COUNTERFEITING OF CURRENCY RATHER THAN OF RACE-TRACK
TICKETS. 

DURING ALL THIS TIME, GREENE HAD REMAINED AT POLICE HEADQUARTERS
BECAUSE HE "WAS CURIOUS TO SEE WHAT THEY WOULD FIND."  ON FINDING WHAT
THEY DID FIND, KOERNER SENT WORD TO GREENE, WHO CAME TO THE HOTEL AND
EXAMINED THE EVIDENCE IN CONTROVERSY.  WHEN LUSTIG AND REYNOLDS
EVENTUALLY RETURNED THEY WERE ARRESTED AND SEARCHED BY THE DETECTIVES. 
AS VARIOUS ARTICLES WERE TAKEN OUT OF THEIR POCKETS, THOSE DEEMED TO
HAVE BEARING ON COUNTERFEITING CURRENCY WERE TURNED OVER TO GREENE.  HE
OBSERVED THAT THE INK ON A $100 BILL TAKEN FROM REYNOLDS HAD NOT BEEN
TAMPERED WITH.  GREENE WAS TRYING TO DISCOVER WHAT HAD BEEN USED TO
MAKE THE IMPRESSION ON THE "SIMILITUDE" FOUND IN THE ROOM.  AFTER THE
SEARCH WAS COMPLETED, GREENE AND THE CITY POLICE GATHERED UP THE
ARTICLES REVEALED BY THE SEARCH AND CARRIED THEM TO THE POLICE
STATION.  SOME OF THESE ARTICLES WERE GIVEN TO GREENE BEFORE HE LEFT
ROOM 402; ALL WERE EVENTUALLY TURNED OVER TO HIM. 

WE ARE CONFRONTED BY A RULING OF THE DISTRICT COURT, SUSTAINED BY THE
COURT OF APPEALS, ADMITTING THE EVIDENCE.  BUT THE QUESTION BEFORE US
IS NOT FORECLOSED BY THE RESPECT TO BE ACCORDED TO A RULING ON AN ISSUE
OF FACT BY THE TRIAL COURT UNTIL ANALYSIS DISCLOSES THAT THE RULING WAS
MERELY ON AN ISSUE OF FACT AND THAT NO ISSUE OF LAW WAS ENTWINED IN THE
RULING.  INSOFAR AS WHAT THE LOWER COURTS FOUND AS FACTS MAY PROPERLY
BE SO REGARDED, THEY ARE TO BE ACCEPTED; BUT THEIR CONSTITUTIONAL
SIGNIFICANCE IS ANOTHER MATTER. 

ON THE BASIS OF WHAT WAS BEFORE HIM, THE TRIAL JUDGE ADMITTED THE
EVIDENCE BECAUSE HE DID NOT "SEE ANY CONNIVANCE OR ARRANGEMENT ON THE
PART OF THE FEDERAL OFFICERS TO HAVE AN ILLEGAL SEARCH MADE TO GET
EVIDENCE THEY COULD NOT SECURE UNDER THE FEDERAL LAW."  WE THEREFORE
ACCEPT AS A FACT THAT GREENE DID NOT REQUEST THE SEARCH, THAT, BEYOND
INDICATING TO THE LOCAL POLICE THAT THERE WAS SOMETHING WRONG, HE WAS
NOT THE MOVING FORCE OF THE SEARCH, AND THAT THE SEARCH WAS NOT
UNDERTAKEN BY THE POLICE TO HELP ENFORCEMENT OF A FEDERAL LAW.  BUT
SEARCH IS A FUNCTIONAL, NOT MERELY A PHYSICAL, PROCESS.  SEARCH IS NOT
COMPLETED UNTIL EFFECTIVE APPROPRIATION, AS PART OF AN UNINTERRUPTED
TRANSACTION, IS MADE OF ILLICITLY OBTAINED OBJECTS FOR SUBSEQUENT PROOF
OF AN OFFENSE.  GREENE'S SELECTION OF THE EVIDENCE DEEMED IMPORTANT FOR
USE IN A FEDERAL PROSECUTION FOR COUNTERFEITING, AS PART OF THE ENTIRE
TRANSACTION IN ROOM 402, WAS NOT SEVERABLE, AND THEREFORE WAS PART OF
THE SEARCH CARRIED ON IN THAT ROOM.  THE UNCONTROVERTED FACTS SHOW THAT
BEFORE THE SEARCH WAS CONCLUDED GREENE WAS CALLED IN, AND ALTHOUGH HE
HIMSELF DID NOT HELP TO EMPTY THE PHYSICAL CONTAINERS OF THE SEIZED
ARTICLES HE DID SHARE IN THE CRITICAL EXAMINATION OF THE UNCOVERED
ARTICLES AS THE PHYSICAL SEARCH PROCEEDED.  IT SURELY CAN MAKE NO
DIFFERENCE WHETHER A STATE OFFICER TURNS UP THE EVIDENCE AND HANDS IT
OVER TO A FEDERAL AGENT FOR HIS CRITICAL INSPECTION WITH THE VIEW TO
ITS USE IN A FEDERAL PROSECUTION, OR THE FEDERAL AGENT HIMSELF TAKES
THE ARTICLES OUT OF A BAG.  IT WOULD TRIVIALIZE LAW TO BASE LEGAL
SIGNIFICANCE ON SUCH A DIFFERENTIATION.  HAD GREENE ACCOMPANIED THE
CITY POLICE TO THE HOTEL, HIS PARTICIPATION COULD NOT BE OPEN TO
QUESTION EVEN THOUGH THE DOOR OF ROOM 402 HAD NOT BEEN OPENED BY HIM. 
SEE JOHNSON V. UNITED STATES, 333 U.S. 10.  TO DIFFERENTIATE BETWEEN
PARTICIPATION FROM THE BEGINNING OF AN ILLEGAL SEARCH AND JOINING IT
BEFORE IT HAD RUN ITS COURSE, WOULD BE TO DRAW TOO FINE A LINE IN THE
APPLICATION OF THE PROHIBITION OF THE FOURTH AMENDMENT AS INTERPRETED
IN BYARS V. UNITED STATES, SUPRA, 273 U.S. 28. 

THE CRUX OF THAT DOCTRINE IS THAT A SEARCH IS A SEARCH BY A FEDERAL
OFFICIAL IF HE HAD A HAND IN IT; IT IS NOT A SEARCH BY A FEDERAL
OFFICIAL IF EVIDENCE SECURED BY STATE AUTHORITIES IS TURNED OVER TO THE
FEDERAL AUTHORITIES ON A SILVER PLATTER.  THE DECISIVE FACTOR IN
DETERMINING THE APPLICABILITY OF THE BYARS CASE IS THE ACTUALITY OF A
SHARE BY A FEDERAL OFFICIAL IN THE TOTAL ENTERPRISE OF SECURING AND
SELECTING EVIDENCE BY OTHER THAN SANCTIONED MEANS.  IT IS IMMATERIAL
WHETHER A FEDERAL AGENT ORIGINATED THE IDEA OR JOINED IN IT WHILE THE
SEARCH WAS IN PROGRESS.  SO LONG AS HE WAS IN IT BEFORE THE OBJECT OF
THE SEARCH WAS COMPLETELY ACCOMPLISHED, HE MUST BE DEEMED TO HAVE
PARTICIPATED IN IT.  WHERE THERE IS PARTICIPATION ON THE PART OF
FEDERAL OFFICERS IT IS NOT NECESSARY TO CONSIDER WHAT WOULD BE THE
RESULT IF THE SEARCH HAD BEEN CONDUCTED ENTIRELY BY STATE OFFICERS. 
EVIDENCE SECURED THROUGH SUCH FEDERAL PARTICIPATION IS INADMISSIBLE FOR
THE SAME CONSIDERATIONS AS THOSE WHICH MADE WEEKS V. UNITED STATES, 232
U.S. 383, THE GOVERNING PRINCIPLE IN FEDERAL PROSECUTIONS. 

THOUGH STATE OFFICERS PRECEDED GREENE IN ILLEGALLY RUMMAGING THROUGH
THE BAGS AND BUREAU DRAWERS IN ROOM 402, THEY CONCERNED THEMSELVES
ESPECIALLY WITH TURNING UP EVIDENCE OF VIOLATIONS OF THE FEDERAL
COUNTERFEITING LAWS AFTER GREENE JOINED THEM.  HE WAS AN EXPERT IN
COUNTERFEITING MATTERS AND HAD A VITAL SHARE IN SIFTING THE EVIDENCE AS
THE SEARCH PROCEEDED.  HE EXERCISED AN EXPERT'S DISCRETION IN SELECTING
OR REJECTING EVIDENCE THAT BORE ON COUNTERFEITING.  THE FACT THAT STATE
OFFICERS PRECEDED HIM IN BREACH OF THE RIGHTS OF PRIVACY DOES NOT
NEGATIVE THE LEGAL SIGNIFICANCE OF THIS COLLABORATION IN THE ILLEGAL
ENTERPRISE BEFORE IT HAD RUN ITS COURSE.  GREENE HIMSELF ACKNOWLEDGED
SUCH PARTICIPATION BY HIS REMARK ABOUT "LEAVING THE ROOM AFTER WE HAD
GATHERED ALL THIS EVIDENCE TOGETHER." 

NOR IS THE SEARCH HERE DEFENSIBLE AS INCIDENTAL TO A LAWFUL ARREST. 
GREENE NEVER MADE THE ARREST, HE KNEW THAT LUSTIG AND REYNOLDS WERE NOT
PRESENT WHEN HE ENTERED THEIR ROOM AND HE HAD AN ACTIVE HAND IN THE
CONTINUATION OF THE SEARCH WITHOUT WARRANT BEFORE LUSTIG AND REYNOLDS
HAD RETURNED.  THE RULING IN DAVIS V. UNITED STATES, 328 U.S. 582, DOES
NOT COME INTO PLAY.  NEITHER IS IT MATERIAL THAT GREENE MAY HAVE BEEN
INFORMED AS TO WHAT HE WAS LIKELY TO FIND BEFORE HE JOINED THE
SEARCHERS.  VINDICATED ANTICIPATION OF WHAT AN ILLEGAL SEARCH MAY
REVEAL DOES NOT VALIDATE A SEARCH OTHERWISE ILLEGAL.  TRUPIANO V.
UNITED STATES, 334 U.S. 699, 708-9.  WITH EVERY RESPECT FOR THE RULINGS
OF THE LOWER COURT, WE FIND THAT THE UNQUESTIONED FACTS DISCLOSE THAT
THE EVIDENCE ON WHICH THE CONVICTION RESTS WAS ILLICIT AND THE MOTION
TO SUPPRESS IT SHOULD HAVE BEEN GRANTED.  REVERSED. 

FN1  AFTER THIS COURT DENIED A PETITION FOR WRIT OF CERTIORARI, A
PETITION FOR REHEARING WAS GRANTED.  THE ORDER ENTERED JUNE 16, 1947,
331 U.S. 853, DENYING CERTIORARI WAS VACATED AND THE PETITION FOR WRIT
OF CERTIORARI TO THE COURT OF APPEALS FOR THE THIRD CIRCUIT WAS GRANTED
ON FEBRUARY 16, 1948.  333 U.S. 835. 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT OF THE COURT SUBSTANTIALLY
FOR REASONS SET OUT IN HIS DISSENT IN FELDMAN V. UNITED STATES, 322
U.S. 487, 494. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
RUTLEDGE JOIN, CONCURRING. 

MR. JUSTICE FRANKFURTER FINDS IT UNNECESSARY TO DECIDE WHETHER AN
ILLEGAL SEARCH BY STATE OFFICERS BARS THE INTRODUCTION OF THE FRUITS OF
THE SEARCH IN A FEDERAL COURT.  I JOIN IN HIS OPINION, AND IN THE
JUDGMENT OF REVERSAL.  BUT MY DISSENTING VIEWS IN WOLF V. COLORADO,
ANTE, P. 25, DECIDED THIS DAY, MAKE CLEAR MY POSITION ON THE QUESTION
HE RESERVES.  IN MY OPINION THE IMPORTANT CONSIDERATION IS THE PRESENCE
OF AN ILLEGAL SEARCH.  WHETHER STATE OR FEDERAL OFFICIALS DID THE
SEARCHING IS OF NO CONSEQUENCE TO THE DEFENDANT, AND IT SHOULD MAKE NO
DIFFERENCE TO US. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE JACKSON
AND MR. JUSTICE BURTON JOIN, DISSENTING. 

MY UNDERSTANDING OF THE RULE AS TO THE USE OF EVIDENCE IN A FEDERAL
CRIMINAL TRIAL OBTAINED BY STATE OFFICERS THROUGH A SEARCH AND SEIZURE
CONDUCTED BY THEM UNDER STATE AUTHORITY IS THIS. 

"WHILE IT IS TRUE THAT THE MERE PARTICIPATION IN A STATE SEARCH OF
ONE WHO IS A FEDERAL OFFICER DOES NOT RENDER IT A FEDERAL UNDERTAKING,
THE COURT MUST BE VIGILANT TO SCRUTINIZE THE ATTENDANT FACTS WITH AN
EYE TO DETECT AND A HAND TO PREVENT VIOLATIONS OF THE CONSTITUTION BY
CIRCUITOUS AND INDIRECT METHODS."  BYARS V. UNITED STATES, 273 U.S. 28,
32.  IN THE BYARS OPINION THIS COURT WENT ON TO SAY THAT THE FEDERAL
GOVERNMENT HAD THE RIGHT "TO AVAIL ITSELF OF EVIDENCE IMPROPERLY SEIZED
BY STATE OFFICERS OPERATING ENTIRELY UPON THEIR OWN ACCOUNT.  BUT THE
RULE IS OTHERWISE WHEN THE FEDERAL GOVERNMENT ITSELF, THROUGH ITS
AGENTS ACTING AS SUCH, PARTICIPATES IN THE WRONGFUL SEARCH AND
SEIZURE."  P. 33.  THIS IS THE RULE WHICH THE COURT REAFFIRMS TODAY. 

IT IS THE APPLICATION OF THAT RULE TO THE FACTS OF THIS CASE WHICH
CAUSES ME TO DISSENT.  ALTHOUGH IT MAY SEEM ONLY A DIFFERENCE OF VIEW
AS TO THE FACTS OF A PARTICULAR CASE, IT BECOMES IMPORTANT IN THE
ADMINISTRATION OF THE CRIMINAL LAW.  IF FEDERAL PEACE OFFICERS ARE TO
BE RESTRICTED IN THEIR DUTIES TO THE EXTENT INDICATED IN THE OPINION,
THEY SHOULD HAVE FULL WARNING SO THAT THEIR WORK IN DETECTING CRIME
WILL NOT BE FRUSTRATED THROUGH THE OFFICER'S INADVERTENCE IN ACCEPTING
EVIDENCE TURNED OVER TO HIM BY STATE OFFICERS.  THE TRIAL COURT FOUND
THAT GREENE DID NOT PARTICIPATE IN THE SEARCH AND SEIZURE.  WE SHOULD
ACCEPT THAT FINDING.  IF WE UNDERTAKE TO REEXAMINE THE TESTIMONY TO SEE
WHETHER THERE WAS PARTICIPATION BY GREENE, I SHOULD REACH THE SAME
CONCLUSION AS THE LOWER COURTS DID. 

IN MY VIEW SECRET SERVICE AGENT GREENE DID NOT PARTICIPATE IN THIS
SEARCH AND SEIZURE AND THE MOTION TO SUPPRESS THE EVIDENCE OBTAINED WAS
PROPERLY OVERRULED IN THE TRIAL COURT, AND THE TRIAL COURT'S ACTION WAS
PROPERLY SUSTAINED IN THE COURT OF APPEALS FOR THE THIRD CIRCUIT. 
THE COURT ACCEPTS "AS A FACT THAT GREENE DID NOT REQUEST THE SEARCH,
THAT, BEYOND INDICATING TO THE LOCAL POLICE THAT THERE WAS SOMETHING
WRONG, HE WAS NOT THE MOVING FORCE OF THE SEARCH, AND THAT THE SEARCH
WAS NOT UNDERTAKEN BY THE POLICE TO HELP ENFORCEMENT OF A FEDERAL
LAW."  THE RECORD SHOWS CLEARLY TO ME THAT AGENT GREENE DID NOT
PARTICIPATE IN THE SEARCH AND SEIZURE. 

ONLY STATE POLICE ENTERED THE ROOM OF LUSTIG, OPENED HIS BRIEF CASES
AND FOUND ALL THE ARTICLES USEFUL IN COUNTERFEITING.  IT WAS NOT UNTIL
AFTER ALL THE ARTICLES WERE FOUND THAT WERE OFFERED IN EVIDENCE THAT
AGENT GREENE WAS CALLED.  FN1  IT WAS STATED THUS IN THE BRIEF FOR
APPELLANT:  "WHEN HE ARRIVED AT THE HOTEL, ALL OF THE MATERIAL THAT HAD
BEEN TAKEN OUT OF THE BRIEF CASE WAS ON THE BED.  CAPT. KOERNER AND
SGT. MURPHY THEN PUT THE EXHIBITS BACK IN THE BRIEF CASES."  THIS WAS
GREENE'S TESTIMONY.  GREENE EXAMINED THE ARTICLES THAT HAD BEEN TAKEN
BY THE STATE POLICE FROM THE SATCHELS.  HE THEN LEFT THE ROOM AND
RETURNED AS LUSTIG AND HIS COMPANION REYNOLDS WERE IN THE ACT OF
OPENING THE DOOR TO ROOM 402 WHERE THE STATE OFFICERS WERE.  THE STATE
OFFICERS THEN ARRESTED REYNOLDS AND LUSTIG ON A WARRANT FOR A STATE
OFFENSE.  THE PRISONERS WERE SEARCHED.  ON REYNOLDS A $100 BILL WAS
FOUND THAT WAS SHOWN TO AGENT GREENE BY CAPTAIN KOERNER.  FN2  THE $100
BILL HAD NOT BEEN TAMPERED WITH, WAS NOT EVIDENCE AGAINST LUSTIG AND
HAS NOTHING TO DO WITH THE CASE AGAINST HIM. 

UNLESS THE FACT THAT AGENT GREENE LOOKED AT THE EVIDENCE SECURED BY
THE STATE POLICE BEFORE IT WAS REMOVED FROM THE ROOM INVOLVES THE
UNITED STATES IN THE SEARCH AND SEIZURE, THE LOWER COURTS WERE CORRECT
IN HOLDING THAT AGENT GREENE HAD NO PART IN THE SEARCH AND SEIZURE. 
GREENE DID NOT "SHARE IN THE CRITICAL EXAMINATION OF THE UNCOVERED
ARTICLES AS THE PHYSICAL SEARCH PROCEEDED."  FN3  THE SEARCH HAD ENDED
BEFORE HE CAME INTO THE ROOM.  THE SUBSEQUENT ARREST, EXAMINATION, AND
THE $100 BILL FOUND ON REYNOLDS HAD NOTHING TO DO WITH THE ALLEGED
UNLAWFUL SEARCH AND SEIZURE.  THE SEARCH AND SEIZURE HAD RUN ITS COURSE
AND WE SHOULD NOT HOLD THAT THE APPEARANCE OF A FEDERAL OFFICER AT THE
PLACE OF UNLAWFUL SEARCH AND SEIZURE AFTER EVIDENCE HAS BEEN FOUND
MAKES HIM A PARTICIPANT IN THE ACT.  THIS EVIDENCE SHOULD NOT BE
SUPPRESSED AND THE CONVICTION OF LUSTIG SHOULD BE AFFIRMED. 

FN1  TESTIMONY OF CAPTAIN KOERNER: 

"Q.  AFTER YOU DISCOVERED THESE ARTICLES, WHAT DID YOU DO? 

"A.  I CALLED AGENT GREENE, OF THE UNITED STATES SECRET SERVICE. 

     .         .         .         .         . 

"GREENE CAME OVER IN THE NEIGHBORHOOD OF FIVE O'CLOCK AFTER WE MADE A
THOROUGH SEARCH AND FOUND ALL THIS EVIDENCE I HAVE PRESENTED." 

TESTIMONY OF SERGEANT MURPHY: 

"Q.  WHEN DID MR. GREENE COME THERE? 

"A.  AFTER WE SEARCHED THE ROOM, SEEING WHAT WAS IN IT, AND FINDING
THE THREE NOTES, I TALKED TO CAPTAIN KOERNER AND I TOLD HIM WE HAD
ENOUGH TO CHARGE HIM WITH A FEDERAL VIOLATION, AND I CALLED MR. GREENE
FROM THE HOTEL AND EXPLAINED TO HIM OVER THE TELEPHONE JUST ABOUT WHAT
WE HAD FOUND, AND HE CAME OVER LATER." 

FN2  TESTIMONY OF AGENT GREENE: 

"Q.  THERE WAS A HUNDRED DOLLAR BILL FOUND ON MR. REYNOLDS? 

"A.  WELL, A NEW ONE. 

"Q.  DID YOU MATCH THE HUNDRED DOLLAR BILL WITH THAT IMPRESSION? 

"A.  NO, SIR.  I OBSERVED THAT THE INK ON THIS NEW HUNDRED DOLLAR
BILL HAD NOT BEEN TAMPERED WITH.  IN OTHER WORDS, THE BILL WAS NEW IN
APPEARANCE AND I CONCLUDED IT WAS NOT THE PATTERN BILL FROM WHICH THIS
HUNDRED DOLLARS WAS MADE. 

"Q.  YOU GAVE THE HUNDRED DOLLARS DID YOU TO MR. REYNOLDS? 

"A.  NO, SIR.  AT THE TIME I LOOKED AT THE BILL IT WAS IN CAPTAIN
KOERNER'S POSSESSION." 

FN3  OPINION OF MR. JUSTICE FRANKFURTER, ANTE, P. 78. 
..END :









CHRISTOFFEL V. UNITED STATES, 338 U.S. 84 


NO. 528.  ARGUED APRIL 20, 1949.  - DECIDED JUNE 27, 1949.  - 84 U.S.
APP. D.C. 132, 171 F.2D 1004, REVERSED. 


FOR ALLEGED PERJURIOUS TESTIMONY BEFORE A COMMITTEE OF THE HOUSE OF
REPRESENTATIVES, PETITIONER WAS CONVICTED UNDER THE PERJURY STATUTE OF
THE DISTRICT OF COLUMBIA (SEC. 22-2501 OF THE D.C. CODE), WHICH MAKES
IT AN ESSENTIAL ELEMENT OF THE OFFENSE THAT IT SHALL HAVE BEEN
COMMITTED BEFORE "A COMPETENT TRIBUNAL."  THE COMMITTEE IN QUESTION HAD
A MEMBERSHIP OF TWENTY-FIVE.  ALTHOUGH EVIDENCE WAS ADDUCED AT THE
TRIAL FROM WHICH A JURY MIGHT HAVE CONCLUDED THAT, AT THE TIME OF THE
ALLEGED PERJURIOUS TESTIMONY, LESS THAN A QUORUM OF THE COMMITTEE WERE
IN ATTENDANCE, THE TRIAL COURT IN ITS CHARGE ALLOWED THE JURY TO FIND A
QUORUM PRESENT SIMPLY BY FINDING THAT THIRTEEN OR MORE MEMBERS WERE IN
ATTENDANCE WHEN THE COMMITTEE WAS CONVENED.  HELD:  SO MUCH OF THE
INSTRUCTIONS TO THE JURY AS ALLOWED THEM TO FIND A QUORUM PRESENT
WITHOUT REFERENCE TO THE FACTS AT THE TIME OF THE ALLEGED PERJURIOUS
TESTIMONY WAS ERRONEOUS, AND THE JUDGMENT OF CONVICTION MUST BE
REVERSED.  PP. 85-90. 

CHRISTOFFEL V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PETITIONER WAS CONVICTED OF PERJURY UNDER THE PERJURY STATUTE OF THE
DISTRICT OF COLUMBIA (SEC. 22-2501 OF THE D.C. CODE), FOR ALLEGED
PERJURIOUS TESTIMONY BEFORE A COMMITTEE OF THE HOUSE OF
REPRESENTATIVES.  THE COURT OF APPEALS AFFIRMED THE CONVICTION.  84
U.S. APP. D.C. 132, 171 F.2D 1004.  THIS COURT GRANTED CERTIORARI.  336
U.S. 934.  REVERSED, P. 90. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN MARCH OF 1947, THE COMMITTEE ON EDUCATION AND LABOR WAS, AS IT IS
NOW, A STANDING COMMITTEE OF THE HOUSE OF REPRESENTATIVES.  FN1  DURING
THE FIRST SESSION OF THE 80TH CONGRESS IT HELD FREQUENT HEARINGS ON
PROPOSED AMENDMENTS TO THE NATIONAL LABOR RELATIONS ACT.  ON MARCH 1,
1947, PETITIONER APPEARED AS A WITNESS BEFORE THE COMMITTEE, UNDER
OATH, AND IN THE COURSE OF THE PROCEEDINGS WAS ASKED A SERIES OF
QUESTIONS DIRECTED TO HIS POLITICAL AFFILIATIONS AND ASSOCIATIONS.  IN
HIS ANSWERS HE UNEQUIVOCALLY DENIED THAT HE WAS A COMMUNIST OR THAT HE
ENDORSED, SUPPORTED OR PARTICIPATED IN COMMUNIST PROGRAMS.  AS A RESULT
OF THESE ANSWERS HE WAS INDICTED FOR PERJURY UNDER SEC. 22-2501 OF THE
DISTRICT OF COLUMBIA CODE,  FN2  AND AFTER A TRIAL BY JURY WAS
CONVICTED.  THE COURT OF APPEALS AFFIRMED THE CONVICTION, 84 U.S. APP.
D.C. 132, 171 F.2D 1004, AND WE GRANTED CERTIORARI TO REVIEW ITS
VALIDITY.  336 U.S. 934. 

NO QUESTION IS RAISED AS TO THE RELEVANCY OR PROPRIETY OF THE
QUESTIONS ASKED.  PETITIONER'S MAIN CONTENTION IS THAT THE COMMITTEE
WAS NOT A "COMPETENT TRIBUNAL" WITHIN THE MEANING OF THE STATUTE, IN
THAT A QUORUM OF THE COMMITTEE WAS NOT PRESENT AT THE TIME OF THE
INCIDENT ON WHICH THE INDICTMENT WAS BASED.  AS TO THIS, THE RECORD
REVEALS THE FOLLOWING:  THE COMMITTEE ON EDUCATION AND LABOR CONSISTS
OF TWENTY-FIVE MEMBERS, OF WHOM THIRTEEN CONSTITUTE A QUORUM.  AT THE
COMMENCEMENT OF THE AFTERNOON SESSION ON SATURDAY, MARCH 1, 1947,
SHORTLY AFTER TWO O'CLOCK, A ROLL CALL SHOWED THAT FOURTEEN MEMBERS
WERE PRESENT.  PETITIONER'S TESTIMONY STARTED SOME TIME AFTER FOUR
O'CLOCK.  THE RESPONSES SAID TO CONSTITUTE OFFENSES WERE GIVEN JUST
PRIOR TO FIVE P.M. 

EVIDENCE WAS ADDUCED AT THE TRIAL FROM WHICH A JURY MIGHT HAVE
CONCLUDED THAT AT THE TIME OF THE ALLEGEDLY PERJURIOUS ANSWERS LESS
THAN A QUORUM - AS FEW AS SIX - OF THE COMMITTEE WERE IN ATTENDANCE. 
COUNSEL FOR THE PETITIONER CONTENDED VIGOROUSLY AT THE TRIAL, ON APPEAL
AND IN THIS COURT THAT UNLESS A QUORUM WERE FOUND TO BE ACTUALLY
PRESENT WHEN THE CRUCIAL QUESTIONS WERE ASKED, THE STATUTORY
REQUIREMENT OF A COMPETENT TRIBUNAL WAS NOT MET AND THAT ABSENT SUCH A
FINDING A VERDICT OF ACQUITTAL SHOULD FOLLOW. 

THE TRIAL COURT AGREED THAT THE PRESENCE OF A QUORUM WAS AN
INDISPENSABLE PART OF THE OFFENSE CHARGED, AND INSTRUCTED THE JURY THAT
TO FIND THE DEFENDANT GUILTY THEY HAD TO FIND BEYOND A REASONABLE DOUBT
"THAT THE DEFENDANT CHRISTOFFEL APPEARED BEFORE A QUORUM OF AT LEAST
THIRTEEN MEMBERS OF THE SAID COMMITTEE," AND THAT "AT LEAST THAT NUMBER
MUST HAVE BEEN ACTUALLY AND PHYSICALLY PRESENT  ...  IF SUCH A
COMMITTEE SO MET, THAT IS, IF 13 MEMBERS DID MEET AT THE BEGINNING OF
THE AFTERNOON SESSION OF MARCH 1, 1947, AND THEREAFTER DURING THE
PROGRESS OF THE HEARING SOME OF THEM LEFT TEMPORARILY OR OTHERWISE AND
NO QUESTION WAS RAISED AS TO THE LACK OF A QUORUM, THEN THE FACT THAT
THE MAJORITY DID NOT REMAIN THERE WOULD NOT AFFECT, FOR THE PURPOSES OF
THIS CASE, THE EXISTENCE OF THAT COMMITTEE AS A COMPETENT TRIBUNAL
PROVIDED THAT BEFORE THE OATH WAS ADMINISTERED AND BEFORE THE TESTIMONY
OF THE DEFENDANT WAS GIVEN THERE WERE PRESENT AS MANY AS 13 MEMBERS OF
THAT COMMITTEE AT THE BEGINNING OF THE AFTERNOON SESSION.  ...  " 

THIS CHARGE IS OBJECTED TO INSOFAR AS IT ALLOWS THE JURY TO FIND A
QUORUM PRESENT SIMPLY BY FINDING THAT THIRTEEN OR MORE MEMBERS WERE IN
ATTENDANCE WHEN THE COMMITTEE WAS CONVENED, WITHOUT REFERENCE TO
SUBSEQUENT FACTS. 

THE CONSTITUTION OF THE UNITED STATES PROVIDES THAT "EACH HOUSE MAY
DETERMINE THE RULES OF ITS PROCEEDINGS," ART. I, SEC. 5, CL. 2, AND WE
FIND THAT THE SUBJECT OF COMPETENCY, BOTH OF THE HOUSE AS A WHOLE AND
OF ITS COMMITTEES, HAS BEEN A MATTER OF CAREFUL CONSIDERATION.  RULE XI
(2)(F) OF THE HOUSE OF REPRESENTATIVES READS IN PART, "THE RULES OF THE
HOUSE ARE HEREBY MADE THE RULES OF ITS STANDING COMMITTEES SO FAR AS
APPLICABLE  ...  "  RULE XV OF THE HOUSE PROVIDES FOR A CALL OF THE
HOUSE IF A QUORUM IS NOT PRESENT, AND IT HAS BEEN HELD UNDER THIS RULE
THAT SUCH A CALL, OR A MOTION TO ADJOURN, IS THE ONLY BUSINESS THAT MAY
BE TRANSACTED IN THE ABSENCE OF A QUORUM.  IV HIND'S PRECEDENTS SEC.
2950; ID. SEC. 2988.  SEE ID. SECS. 2934, 2939; VI CANNON'S PRECEDENTS
SEC. 653; ID. SEC. 680.  IT APPEARS TO US PLAIN THAT EVEN THE MOST
HIGHLY PRIVILEGED BUSINESS MUST BE SUSPENDED IN THE ABSENCE OF A QUORUM
IN THE HOUSE ITSELF. 

A SIMILAR SITUATION OBTAINS IN THE COMMITTEES.  FN3  THE LEGISLATIVE
REORGANIZATION ACT OF 1946, 60 STAT. 812, 831, PROVIDES, REFERRING TO
THE STANDING COMMITTEES, IN SEC. 133(D), "NO MEASURE OR RECOMMENDATION
SHALL BE REPORTED FROM ANY SUCH COMMITTEE UNLESS A MAJORITY OF THE
COMMITTEE WERE ACTUALLY PRESENT."  THE RULE EMBODIED IN THIS SUBSECTION
WAS EFFECTIVE AS LONG AGO AS 1918 TO KEEP OFF THE FLOOR OF THE HOUSE A
BILL FROM A COMMITTEE ATTENDED BY LESS THAN A QUORUM, EVEN THOUGH NO
OBJECTION WAS RAISED IN THE COMMITTEE MEETING ITSELF.  IT APPEARED THAT
THE SITUATION IN THE COMMITTEE WAS MUCH LIKE THE ONE WITH WHICH WE ARE
CONCERNED, WITH MEMBERS COMING AND GOING DURING THE MEETING.  NO POINT
OF NO QUORUM WAS RAISED AT THE COMMITTEE MEETING.  WHEN THE CHAIRMAN
PROPOSED IN THE HOUSE TO BRING UP THE BILL CONSIDERED IN THE MEETING,
THE SPEAKER RULED, ON OBJECTION BEING MADE FROM THE FLOOR, THAT IN
SPITE OF THE POINT'S NOT HAVING BEEN RAISED IN COMMITTEE, THE BILL
COULD NOT BE REPORTED.  THE ABSENCE OF A QUORUM OF THE COMMITTEE,
THOUGH AT THE TIME UNOBJECTED TO, HAD MADE EFFECTIVE ACTION
IMPOSSIBLE.  VIII CANNON'S PRECEDENTS SEC. 2212.  WITNESSES IN
COMMITTEE HEARINGS CANNOT BE REQUIRED TO BE FAMILIAR WITH THE
COMPLICATIONS OF PARLIAMENTARY PRACTICE.  EVEN IF THEY ARE, THE POWER
TO RAISE A POINT OF NO QUORUM APPEARS TO BE LIMITED TO MEMBERS OF THE
COMMITTEE.  WE HAVE NO DOUBT THAT IF A MEMBER OF THE COMMITTEE HAD
RAISED A POINT OF NO QUORUM AND A COUNT HAD REVEALED THE PRESENCE OF
LESS THAN A MAJORITY, PROCEEDINGS WOULD HAVE BEEN SUSPENDED UNTIL THE
DEFICIENCY SHOULD BE SUPPLIED.  IN A CRIMINAL CASE AFFECTING THE RIGHTS
OF ONE NOT A MEMBER, THE OCCASION OF TRIAL IS AN APPROPRIATE ONE FOR
PETITIONER TO RAISE THE QUESTION. 

CONGRESSIONAL PRACTICE IN THE TRANSACTION OF ORDINARY LEGISLATIVE
BUSINESS IS OF COURSE NONE OF OUR CONCERN, AND BY THE SAME TOKEN THE
CONSIDERATIONS WHICH MAY LEAD CONGRESS AS A MATTER OF LEGISLATIVE
PRACTICE TO TREAT AS VALID THE CONDUCT OF ITS COMMITTEES DO NOT CONTROL
THE ISSUE BEFORE US.  THE QUESTION IS NEITHER WHAT RULES CONGRESS MAY
ESTABLISH FOR ITS OWN GOVERNANCE, NOR WHETHER PRESUMPTIONS OF
CONTINUITY MAY PROTECT THE VALIDITY OF ITS LEGISLATIVE CONDUCT.  THE
QUESTION IS RATHER WHAT RULES THE HOUSE HAS ESTABLISHED AND WHETHER
THEY HAVE BEEN FOLLOWED.  IT OF COURSE HAS THE POWER TO DEFINE WHAT
TRIBUNAL IS COMPETENT TO EXACT TESTIMONY AND THE CONDITIONS THAT
ESTABLISH ITS COMPETENCY TO DO SO.  THE HEART OF THIS CASE IS THAT BY
THE CHARGE THAT WAS GIVEN IT THE JURY WAS ALLOWED TO ASSUME THAT THE
CONDITIONS OF COMPETENCY WERE SATISFIED EVEN THOUGH THE BASIS IN FACT
WAS NOT ESTABLISHED AND IN FACE OF A POSSIBLE FINDING THAT THE FACTS
CONTRADICTED THE ASSUMPTION. 

WE ARE MEASURING A CONVICTION OF CRIME BY THE STATUTE WHICH DEFINED
IT.  AS A CONSEQUENCE OF THIS CONVICTION, PETITIONER WAS SENTENCED TO
IMPRISONMENT FOR A TERM OF FROM TWO TO SIX YEARS.  AN ESSENTIAL PART OF
A PROCEDURE WHICH CAN BE SAID FAIRLY TO INFLICT SUCH A PUNISHMENT IS
THAT ALL THE ELEMENTS OF THE CRIME CHARGED SHALL BE PROVED BEYOND A
REASONABLE DOUBT.  AN ELEMENT OF THE CRIME CHARGED IN THE INSTANT
INDICTMENT IS THE PRESENCE OF A COMPETENT TRIBUNAL, AND THE TRIAL COURT
PROPERLY SO INSTRUCTED THE JURY.  THE HOUSE INSISTS THAT TO BE SUCH A
TRIBUNAL A COMMITTEE MUST CONSIST OF A QUORUM, AND WE AGREE WITH THE
TRIAL COURT'S CHARGE THAT, TO CONVICT, THE JURY HAD TO BE SATISFIED
BEYOND A REASONABLE DOUBT THAT THERE WERE "ACTUALLY AND PHYSICALLY
PRESENT" A MAJORITY OF THE COMMITTEE.  FN4 

THEN TO CHARGE, HOWEVER, THAT SUCH REQUIREMENT IS SATISFIED BY A
FINDING THAT THERE WAS A MAJORITY PRESENT TWO OR THREE HOURS BEFORE THE
DEFENDANT OFFERED HIS TESTIMONY, IN THE FACE OF EVIDENCE INDICATING THE
CONTRARY, IS TO RULE AS A MATTER OF LAW THAT A QUORUM NEED NOT BE
PRESENT WHEN THE OFFENSE IS COMMITTED.  THIS NOT ONLY SEEMS TO US
CONTRARY TO THE RULES AND PRACTICE OF THE CONGRESS BUT DENIES
PETITIONER A FUNDAMENTAL RIGHT.  THAT RIGHT IS THAT HE BE CONVICTED OF
CRIME ONLY ON PROOF OF ALL THE ELEMENTS OF THE CRIME CHARGED AGAINST
HIM.  A TRIBUNAL THAT IS NOT COMPETENT IS NO TRIBUNAL, AND IT IS
UNTHINKABLE THAT SUCH A BODY CAN BE THE INSTRUMENT OF CRIMINAL
CONVICTION.  THE COURT OF APPEALS ERRED IN AFFIRMING SO MUCH OF THE
INSTRUCTIONS TO THE JURY AS ALLOWED THEM TO FIND A QUORUM PRESENT
WITHOUT REFERENCE TO THE FACTS AT THE TIME OF THE ALLEGED PERJURIOUS
TESTIMONY, AND ITS JUDGMENT IS REVERSED.  REVERSED. 

FN1  LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 812, SEC. 121;
RULE X, HOUSE OF REPRESENTATIVES; H.R. RES. NO. 111, 80TH CONG., 1ST
SESS., ADOPTED FEB. 26, 1947(93 CONG. REC. 1457). 

FN2  "SEC.  22-2501  ...  PERJURY - SUBORNATION OF PERJURY.  EVERY
PERSON WHO, HAVING TAKEN AN OATH OR AFFIRMATION BEFORE A COMPETENT
TRIBUNAL, OFFICER, OR PERSON, IN ANY CASE IN WHICH THE LAW AUTHORIZED
SUCH OATH OR AFFIRMATION 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,
WILFULLY AND CONTRARY TO SUCH OATH OR AFFIRMATION STATES OR SUBSCRIBES
ANY MATERIAL MATTER WHICH HE DOES NOT BELIEVE TO BE TRUE, SHALL BE
GUILTY OF PERJURY; AND ANY PERSON CONVICTED OF PERJURY OR SUBORNATION
OF PERJURY SHALL BE PUNISHED BY IMPRISONMENT IN THE PENITENTIARY FOR
NOT LESS THAN TWO NOR MORE THAN TEN YEARS.  ...  "  31 STAT. 1329. 

FN3  THERE IS SOME DIFFERENCE BETWEEN PROCEDURE IN THE FULL HOUSE AND
IN ITS COMMITTEES.  IN THE FORMER, BUSINESS IS TRANSACTED ON THE
ASSUMPTION THAT A QUORUM IS PRESENT AT ALL TIMES, UNLESS A ROLL CALL OR
A DIVISION INDICATE THE CONTRARY.  IN COMMITTEE MEETINGS, HOWEVER, THE
PRESENCE OF A QUORUM MUST BE AFFIRMATIVELY SHOWN BEFORE THE COMMITTEE
IS DEEMED TO BE LEGALLY MET.  VIII CANNON'S PRECEDENTS SEC. 2222. 

FN4  IN MEYERS V. UNITED STATES, 84 U.S. APP. D.C. 101, 171 F.2D 800,
THE APPELLANT MADE CONTENTIONS SIMILAR TO THOSE OF PETITIONER.  THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT HELD THE SAME
VIEW EXPRESSED HERE.  "ON OCTOBER 6, 1947, HOWEVER, ONLY TWO SENATORS
WERE PRESENT AT THE HEARING.  SINCE THEY WERE A MINORITY OF THE
SUBCOMMITTEE, THEY COULD NOT LEGALLY FUNCTION EXCEPT TO ADJOURN.  FOR
THAT REASON, THE TESTIMONY OF LAMARRE GIVEN ON THAT DAY CANNOT BE
CONSIDERED AS PERJURY NOR CAN APPELLANT BE CONVICTED OF SUBORNING IT." 
84 U.S. APP. D.C. AT 112, 171 F.2D AT 811.  THE CONVICTION WAS AFFIRMED
ON THE GROUND THAT ALL THE PERJURIOUS STATEMENTS ALLEGED IN THE
INDICTMENT WERE MADE ON OCTOBER 4, WHEN A QUORUM WAS PRESENT.  84 U.S.
APP. D.C. AT 113, 171 F.2D AT 812. 

MR. JUSTICE JACKSON, DISSENTING. 

THE CHIEF JUSTICE, MR. JUSTICE REED, MR. JUSTICE BURTON AND I THINK
THE COURT IS DENYING TO THE RECORDS OF THE CONGRESS AND ITS COMMITTEES
THE CREDIT AND EFFECT TO WHICH THEY ARE ENTITLED, QUITE CONTRARY TO ALL
RECOGNIZED PARLIAMENTARY RULES, OUR PREVIOUS DECISIONS, AND THE
CONSTITUTION ITSELF. 

NO ONE QUESTIONS THAT THE COMPETENCY OF A COMMITTEE OF EITHER HOUSE
OF CONGRESS DEPENDS UPON THE ACTION OF THE HOUSE IN CONSTITUTING THE
COMMITTEE, AND IN DETERMINING THE RULES GOVERNING ITS PROCEDURE.  NOR
DOES ANY ONE DENY THAT EACH HOUSE HAS THE POWER TO PROVIDE EXPRESSLY
THAT A MAJORITY OF THE ENTIRE MEMBERSHIP OF ANY OF ITS COMMITTEES SHALL
CONSTITUTE A QUORUM FOR CERTAIN PURPOSES, AND THAT FOR OTHER PURPOSES A
DIFFERENT NUMBER SHALL BE SUFFICIENT.  FOR EXAMPLE, EITHER HOUSE MAY
PROVIDE EXPRESSLY THAT, FOR THE PURPOSE OF CONVENING A SESSION OF A
COMMITTEE OR OF APPROVING A REPORT, A MAJORITY OF THE COMMITTEE'S
ENTIRE MEMBERSHIP SHALL BE NECESSARY; AND THAT, FOR THE PURPOSE OF
TAKING SWORN TESTIMONY, ONE OR MORE COMMITTEE MEMBERS SHALL BE
SUFFICIENT TO CONSTITUTE A QUORUM.  SIMILARLY, EACH HOUSE MAY SPELL OUT
A FORMAL RULE THAT A COMMITTEE SHALL CONSTITUTE A COMPETENT TRIBUNAL TO
TAKE SWORN TESTIMONY IF A MAJORITY OF ITS MEMBERS SHALL BE PRESENT AT
THE BEGINNING OF THE SESSION AT WHICH THE TESTIMONY IS TAKEN, AND THAT
SUCH COMPETENCY SHALL CONTINUE ALTHOUGH THE ATTENDANCE OF COMMITTEE
MEMBERS MAY DROP, DURING THE COMMITTEE'S SESSION, TO SOME SMALLER
NUMBER.  THE REASONABLENESS OF SUCH A RULE IS APPARENT BECAUSE THE
VALUE OF THE TESTIMONY TAKEN BY SUCH A COMMITTEE IS MEASURED NOT SO
MUCH BY THE NUMBER OF PEOPLE WHO HEAR IT SPOKEN AT THE SESSION AS IT IS
BY THE NUMBER AND IDENTITY OF THOSE WHO READ IT LATER.    BUT WHAT
CONGRESS MAY DO BY EXPRESS RULE IT MAY DO ALSO BY ITS CUSTOM AND
PRACTICE.  THERE IS NO REQUIREMENT, CONSTITUTIONAL OR OTHERWISE, THAT
ITS BODY OF PARLIAMENTARY LAW MUST BE RECORDED IN ORDER TO BE
AUTHORITATIVE.  IN THE ABSENCE OF OBJECTION RAISED AT THE TIME, AND IN
THE ABSENCE OF ANY SHOWING OF A RULE, PRACTICE OR CUSTOM TO THE
CONTRARY, THIS COURT HAS THE DUTY TO PRESUME THAT THE CONDUCT OF A
CONGRESSIONAL COMMITTEE, IN ITS USUAL COURSE OF BUSINESS, CONFORMS TO
BOTH THE WRITTEN AND UNWRITTEN RULES OF THE HOUSE WHICH CREATED IT.
"EACH HOUSE MAY DETERMINE THE RULES OF ITS PROCEEDINGS,  ...  "  ART.
I, SEC. 5, CL. 2.  THIS COURT ACCORDINGLY CAN NEITHER DETERMINE THE
RULES FOR EITHER HOUSE OF CONGRESS NOR REQUIRE THOSE RULES TO BE
EXPRESSED WITH ANY DEGREE OF EXPLICITNESS OTHER THAN THAT CHOSEN BY THE
RESPECTIVE HOUSES. 

THE RECORD SHOWS A QUORUM OF THIS COMMITTEE PRESENT WHEN THE SESSION
BEGAN, AND NEITHER CHRISTOFFEL NOR ANYONE ELSE HAD RAISED THE POINT OF
NO QUORUM UP TO THE TIME HE GAVE FALSE TESTIMONY.  ON TRIAL FOR PERJURY
HE INTRODUCED ORAL TESTIMONY TENDING TO SHOW THAT, AT THE MOMENT HE SO
TESTIFIED, LESS THAN A QUORUM WERE ACTUALLY PRESENT.  THE TRIAL COURT
CHARGED THAT, IN THE ABSENCE OF CHALLENGE OR PROOF TO THE CONTRARY, THE
QUORUM ESTABLISHED AT THE BEGINNING OF THE SESSION IS PRESUMED TO
CONTINUE AND THE JURY COULD FIND CHRISTOFFEL GUILTY OF PERJURY IF HE
GAVE FALSE TESTIMONY BEFORE SUCH A BODY.  HE WAS FOUND GUILTY.  THE
COURT NOW HOLDS THE CHARGE WAS ERRONEOUS AND THAT, IF THE GOVERNMENT
CANNOT SHOW POSITIVELY THAT THERE WAS A QUORUM PRESENT WHEN HE
FALSIFIED, THE COMMITTEE WAS NOT A "COMPETENT TRIBUNAL" WITHIN THE
PERJURY STATUTE OF THE DISTRICT AND HIS CONVICTION THEREUNDER IS
INVALID. 

THUS THE ISSUE IS NOT WHETHER A QUORUM IS REQUIRED IN ORDER FOR THE
COMMITTEE TO BE A COMPETENT TRIBUNAL, BUT WHETHER COMMITTEE RULES,
PRACTICES AND RECORDS, AND CONGRESSIONAL RULES, PRACTICES AND RECORDS
IN ANALOGOUS SITUATIONS, ARE SUBJECT TO ATTACK BY LATER ORAL TESTIMONY
AND TO INVALIDATION BY THE COURTS. 

ALL THE PARLIAMENTARY AUTHORITIES, INCLUDING THOSE CITED BY THE
COURT, AGREE THAT A QUORUM IS REQUIRED FOR ACTION, OTHER THAN
ADJOURNMENT, BY ANY PARLIAMENTARY BODY; AND THEY AGREE THAT THE
CUSTOMARY LAW OF SUCH BODIES IS THAT, THE PRESENCE OF A QUORUM HAVING
BEEN ASCERTAINED AND RECORDED AT THE BEGINNING OF A SESSION, THAT
RECORD STANDS UNLESS AND UNTIL THE POINT OF NO QUORUM IS RAISED.  THIS
IS THE UNIVERSAL PRACTICE.  IF IT WERE OTHERWISE, REPEATED USELESS ROLL
CALLS WOULD BE NECESSARY BEFORE EVERY ACTION. 

IN THIS CASE, THEREFORE, THE RECORD ON THE SUBJECT OF QUORUM WAS
ENTITLED TO FULL CREDIT.  CHRISTOFFEL HIMSELF DID NOT, DURING HIS
TESTIMONY, RAISE THE QUESTION OF NO QUORUM.  WHETHER ONE NOT A MEMBER
OF THE BODY WOULD HAVE BEEN PERMITTED TO DO SO AND WHAT EFFECT IT WOULD
HAVE, HAD HE BEEN REFUSED, WE NEED NOT DECIDE.  THE FACT IS, HE MADE NO
EFFORT TO RAISE THE POINT.  TO HAVE THEN EVEN SUGGESTED THE OBJECTION
WOULD HAVE GIVEN OPPORTUNITY TO THE COMMITTEE TO CORRECT IT. AND IF
THERE WERE NOT ENOUGH COMMITTEE MEMBERS PRESENT TO MAKE A LEGAL BODY,
HE WOULD BE AT LIBERTY, IF HIS OBJECTION WERE OVERRULED, TO WALK OUT. 
INSTEAD, HE CHOSE TO FALSIFY TO THE COMMITTEE AND NOW SAYS THAT,
DESPITE THE RECORD, HE SHOULD BE ALLOWED TO PROVE THAT NOT ENOUGH
MEMBERS WERE PRESENT FOR HIS LIE TO BE LEGAL PERJURY.  THE COURT AGREES
AND HOLDS THAT THE HOUSE RULES REQUIRING A QUORUM FOR ACTION REQUIRE
THIS RESULT.  SINCE THE CONSTITUTIONAL PROVISION GOVERNING THE HOUSE
ITSELF ALSO REQUIRES A QUORUM BEFORE THAT BODY CAN DO BUSINESS, THIS
RAISES THE QUESTION WHETHER THE DECISION NOW ANNOUNCED WILL ALSO APPLY
TO THE HOUSE ITSELF.  IF IT DOES, IT COULD HAVE THE EFFECT OF
INVALIDATING ANY ACTION TAKEN OR LEGISLATION PASSED WITHOUT A RECORD
VOTE, WHICH REPRESENTS A LARGE PROPORTION OF THE BUSINESS DONE BY BOTH
HOUSE AND SENATE.  THE EFFECT IS ILLUSTRATED BY NOTING THAT SUCH A RULE
WOULD MAKE POSSIBLE THE INVALIDATION OF NOT ONLY THIS CONVICTION FOR
PERJURY, BUT THE PERJURY ACT  FN1  ITSELF, AS WELL AS THE JUDICIAL
CODE,  FN2 WHICH IS NOW THE SOURCE OF THIS COURT'S AUTHORITY TO REVIEW
THE CONVICTION.  MOREOVER, THIS RULE IS IN DIRECT CONTRAVENTION OF THE
CONSTITUTION, WHICH DOES NOT REQUIRE EITHER HOUSE OR SENATE, MUCH LESS
A COMMITTEE, TO TAKE A RECORD VOTE EXCEPT  FN3  "AT THE DESIRE OF ONE
FIFTH OF THOSE PRESENT."  ART. I, SEC. 5, CL. 3. 

THE COURT SIGNIFICANTLY OMITS CITATION OF ANY PRIOR DECISION IN
SUPPORT OF ITS PRESENT CONCLUSION.  FN4  THE REASON IS FAIRLY CLEAR -
THE OTHERS ARE INCONSISTENT WITH THIS ONE.  FOR EXAMPLE, IN UNITED
STATES V. BALLIN, 144 U.S. 1, WE HELD IT TO BE WITHIN THE COMPETENCY OF
THE HOUSE TO PRESCRIBE ANY METHOD REASONABLY CERTAIN TO ASCERTAIN THE
FACT OF A QUORUM; THAT THE COURTS ARE NOT CONCERNED WITH THE WISDOM OR
ADVANTAGES OF ANY SUCH RULE - "WITH THE COURTS THE QUESTION IS ONLY ONE
OF POWER."  THE HOUSE HAS ADOPTED THE RULE AND PRACTICE THAT A QUORUM
ONCE ESTABLISHED IS PRESUMED TO CONTINUE UNLESS AND UNTIL A POINT OF NO
QUORUM IS RAISED.  BY THIS DECISION, THE COURT, IN EFFECT, INVALIDATES
THAT RULE DESPITE THE LIMITATIONS CONSISTENTLY IMPOSED UPON COURTS
WHERE SUCH AN ISSUE IS TENDERED.  SEE FIELD V. CLARK, 143 U.S. 649, 669
673; UNITED STATES V. BALLIN, 144 U.S. 1, 5; FLINT V. STONE TRACY CO.,
220 U.S. 107, 143; CF. LESER V. GARNETT, 258 U.S. 130, 137.  AND SEE
COLEMAN V. MILLER, 307 U.S. 433, 453-456; AND CONCURRING OPINIONS AT
307 U.S. 456-460, 460, AND 460-470. 

WE DO NOT THINK WE SHOULD DEVISE A NEW RULE FOR THIS PARTICULAR CASE
TO EXTEND AID TO ONE WHO DID NOT RAISE HIS OBJECTION WHEN IT COULD BE
MET AND WHO HAS BEEN PREJUDICED BY ABSENCE OF A QUORUM ONLY IF WE
ASSUME THAT, ALTHOUGH HE TOLD A FALSEHOOD TO ELEVEN CONGRESSMEN, HE
WOULD HAVE BEEN HONEST IF TWO MORE HAD BEEN PRESENT.  BUT IN NO EVENT
SHOULD WE PUT OUT A DOCTRINE BY WHICH EVERY CONGRESSIONAL ACT OR
COMMITTEE ACTION, AND PERHAPS EVERY JUDGMENT HERE, CAN BE OVERTURNED ON
ORAL TESTIMONY OF INTERESTED PARTIES. 

WE SHOULD AFFIRM THE CONVICTION. 

FN1  PASSED WITHOUT RECORD VOTE BY THE SENATE, 34 CONG. REC., PT. 4,
PP. 3496-97, AND BY THE HOUSE WITHOUT A RECORD VOTE, 34 CONG. REC., PT.
4, P. 3586. 

FN2  PASSED BY THE SENATE WITHOUT A RECORD VOTE, 94 CONG. REC., PT.
6, P. 7930, AND MOTION TO RECONSIDER WITHDRAWN, 94 CONG. REC., PT. 7,
P. 8297.  PASSED BY THE HOUSE WITHOUT A RECORD VOTE, 94 CONG. REC., PT.
7, P. 8501. 

FN3  A SEPARATE PROVISION REQUIRES A RECORD VOTE ON THE QUESTION OF
OVERRIDING A PRESIDENTIAL VETO.  ART. I, SEC. 7, CL. 2. 

FN4  THIS IS NOT BECAUSE OTHERS HAVE NOT TRIED TO RAISE THE ISSUE. 
IN MEYERS V. UNITED STATES, 84 U.S. APP. D.C. 101, 171 F.2D 800,
CERTIORARI DENIED 336 U.S. 912, THE PETITIONER WAS CONVICTED OF
SUBORNATION OF PERJURY COMMITTED BEFORE A COMMITTEE OF CONGRESS ON TWO
SEPARATE DAYS - OCTOBER 4 AND OCTOBER 6.  THE CONVICTION WAS ALLOWED TO
STAND DESPITE A CHARGE TO THE JURY THAT THE QUORUM ON OCTOBER 4 WAS
PRESUMED TO CONTINUE UNLESS AND UNTIL A COMMITTEE MEMBER RAISED THE
POINT OF NO QUORUM, AND THAT FALSE TESTIMONY GIVEN BEFORE THE POINT IS
RAISED IS PERJURIOUS UNDER THIS SAME STATUTE.  THAT CHARGE IS
PRACTICALLY IDENTICAL WITH THE CHARGE GIVEN IN THIS CASE, OF WHICH THIS
COURT NOW SAYS:  "THE HEART OF THIS CASE IS THAT BY THE CHARGE THAT WAS
GIVEN IT THE JURY WAS ALLOWED TO ASSUME THAT THE CONDITIONS OF
COMPETENCY WERE SATISFIED EVEN THOUGH THE BASIS IN FACT WAS NOT
ESTABLISHED AND IN FACE OF A POSSIBLE FINDING THAT THE FACTS
CONTRADICTED THE ASSUMPTION."  THIS PERFECTLY DESCRIBES THE MEYERS
CASE, CONSIDERING ONLY THE OCTOBER 4TH TESTIMONY, ON WHICH IT IS SAID
THE CONVICTION RESTED.  CONSIDERING ONLY THAT PART OF EACH COUNT,
MEYERS WAS CONVICTED AND IS NOW IMPRISONED FOR SUBORNING PERJURY GIVEN
UNDER IDENTICAL CONDITIONS AS DID CHRISTOFFEL; AND MEYERS' GUILT WAS
DETERMINED BY A JURY WHICH RECEIVED THE SAME RULING THE COURT NOW HOLDS
TO BE ERROR AS APPLIED TO CHRISTOFFEL.  YET THE MEYERS CONVICTION WAS
AFFIRMED AND WE DENIED HIS PLEA FOR REVIEW.  SUCH A DENIAL HERE OF
COURSE DOES NOT IMPLY APPROVAL OF THE LAW ANNOUNCED BELOW BUT, ON THE
UNDISPUTED FACTS, MEYERS' CONVICTION RESTS ON A BASIS WHICH THIS COURT
SAYS IS "UNTHINKABLE" AS TO CHRISTOFFEL, WHOSE CONVICTION IS REVERSED. 

MOREOVER, THE MEYERS JURY WAS PERMITTED TO CONVICT, PARTLY AT LEAST,
ON THE BASIS OF TESTIMONY GIVEN BEFORE A COMMITTEE ON OCTOBER 6 WHEN
THE COMMITTEE RECORDS SHOWED, AND THE GOVERNMENT ADMITS, THAT NO QUORUM
WAS PRESENT AT ANY TIME.  TODAY'S OPINION IS DIAMETRICALLY OPPOSED TO
THE MEYERS CONVICTION BASED ON THE OCTOBER 4TH TESTIMONY ALONE, BUT THE
MEYERS CONVICTION ALSO RESTS IN PART ON TESTIMONY BEFORE A BODY WHICH
DEMONSTRABLY AND ADMITTEDLY NEVER AMOUNTED TO A QUORUM, WHILE
CHRISTOFFEL'S IS REVERSED MERELY BECAUSE THE CHARGE PERMITTED THE JURY
TO IGNORE ORAL TESTIMONY "INDICATING" THAT A QUORUM ONCE ADMITTEDLY
ESTABLISHED MAY HAVE EVAPORATED.  I DO NOT SEE HOW THE COURT CAN
JUSTIFY SUCH DISCRIMINATION.  THE COURT BELOW EVIDENTLY COULD NOT, FOR
IT RELIED ON THE MEYERS CASE AS A PRECEDENT FOR AFFIRMING THE
CONVICTION OF CHRISTOFFEL ON THIS IDENTICAL ISSUE.  84 U.S. APP. D.C.
132, 133, 171 F.2D 1004, 1005, N. 1. 
..END :







S.E.C. V. CENTRAL-ILLINOIS CORP., 338 U.S. 96 


ARGUED JANUARY 12-13, 1949.  - DECIDED JUNE 27, 1949.  - 168 F.2D 722,
REVERSED. 


THE SECURITIES AND EXCHANGE COMMISSION APPROVED AS FAIR AND EQUITABLE
AN AMENDED PLAN FOR DISSOLUTION SUBMITTED UNDER SEC. 11(E) OF THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 BY A SOLVENT HOLDING COMPANY
WHOSE CAPITAL STRUCTURE CONSISTED OF THREE CLASSES OF PREFERRED AND ONE
CLASS OF COMMON STOCK.  THE PLAN PROVIDED FOR PAYMENT TO THE PREFERRED
STOCKHOLDERS IN CASH; DISTRIBUTION OF THE REMAINING ASSETS TO THE
COMMON STOCKHOLDERS; AND DISSOLUTION OF THE COMPANY.  THE PREFERRED
STOCKHOLDERS WERE TO BE PAID THE VOLUNTARY LIQUIDATION VALUES (OR CALL
PRICES) FIXED BY THE CHARTER ($105, $110, AND $110, RESPECTIVELY),
WHICH THE COMMISSION FOUND TO BE LESS THAN THEIR GOING-CONCERN OR
INVESTMENT VALUES BUT WHICH WERE MORE THAN THEIR CHARTER VALUES ON
INVOLUNTARY LIQUIDATION ($100 FOR EACH OF THE THREE CLASSES).  ON
APPLICATION BY THE COMMISSION FOR ENFORCEMENT OF THE PLAN, THE DISTRICT
COURT CONCLUDED THAT IT WOULD NOT BE FAIR AND EQUITABLE TO PAY THE
PREFERRED STOCKHOLDERS MORE THAN $100 PER SHARE, ORDERED THE PLAN
MODIFIED TO PROVIDE FOR SUCH PAYMENT, AND APPROVED THE PLAN AS THUS
MODIFIED.  HELD:  THE COMMISSION'S APPROVAL OF THE PLAN WAS NOT
CONTRARY TO LAW; ITS FINDINGS WERE SUPPORTED BY ADEQUATE EVIDENCE; AND
ITS ORDER SHOULD HAVE BEEN APPROVED AND ENFORCED.  PP. 99-113, 155. 

1.  THE COMMISSION'S FINDINGS AS TO VALUATION, WHICH ARE BASED UPON
EXPERT JUDGMENT, DISCRETION AND PREDICTION, AS WELL AS UPON "FACTS,"
ARE NOT SUBJECT TO REEXAMINATION ON JUDICIAL REVIEW IN A PROCEEDING
UNDER SEC. 11(E), UNLESS THEY ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
OR WERE NOT MADE IN ACCORDANCE WITH LEGAL STANDARDS.  PP. 113-127. 

(A)  THE SCOPE OF JUDICIAL REVIEW OVER FINDINGS OF FACT AND OVER
DETERMINATIONS IN MATTERS IN WHICH CONGRESS HAS GIVEN THE COMMISSION
AUTHORITY TO ACT UPON ITS EXPERT KNOWLEDGE AND EXPERIENCE IS NOT
DIFFERENT IN A PROCEEDING UNDER SEC. 11(E) FROM THAT IN A PROCEEDING
UNDER SEC. 24(A).  PP. 113-127. 

(B)  THE CHARACTERIZATION OF THE REVIEWING COURT IN SEC. 11(E) AS "A
COURT OF EQUITY" WAS NOT INTENDED TO DEFINE THE SCOPE OF REVIEW TO BE
EXERCISED OVER FINDINGS OF FACT OR DETERMINATIONS IN MATTERS COMMITTED
TO THE COMMISSION'S EXPERT JUDGMENT AND DISCRETION, OR TO SET UP A
DIFFERENT AND CONFLICTING STANDARD OF REVIEW FROM THE ONE TO BE APPLIED
IN PROCEEDINGS UNDER SEC. 24(A).  P. 125. 

2.  THE EQUITABLE EQUIVALENTS OF THE SECURITIES' INVESTMENT VALUES ON
A GOING-CONCERN BASIS, RATHER THAN CHARTER LIQUIDATION PROVISIONS,
PROVIDE THE MEASURE OF STOCKHOLDERS' RIGHTS IN LIQUIDATIONS COMPELLED
BY THE ACT.  OTIS & CO. V. SECURITIES & EXCHANGE COMM'N, 323 U.S. 624;
SCHWABACHER V. UNITED STATES, 334 U.S. 182.  PP. 129-135. 

(A)  THE "FAIR AND EQUITABLE" STANDARD REQUIRES THAT EACH SECURITY
HOLDER BE GIVEN THE EQUITABLE EQUIVALENT OF THE RIGHTS SURRENDERED; IN
LIQUIDATIONS UNDER THE ACT, EQUITABLE EQUIVALENCE IS DETERMINED, NOT BY
CHARTER PREFERENCES, BUT BY VALUING THE SECURITY SURRENDERED "ON THE
BASIS OF A GOING BUSINESS AND NOT AS THOUGH A LIQUIDATION WERE TAKING
PLACE."  PP. 130-131. 

(B)  THERE IS NO SIGNIFICANT DIFFERENCE BETWEEN THE CHARTER
PROVISIONS IN THIS CASE AND THOSE IN THE OTIS CASE.  PP. 131-132. 

(C)  THE FACT THAT IN THIS CASE THERE IS A DISSOLUTION OF THE HOLDING
COMPANY ENTERPRISE BY THE LIQUIDATION OF THE LAST HOLDING COMPANY IN
THE SYSTEM, WHEREAS IN THE OTIS CASE THE HOLDING COMPANY SYSTEM WAS TO
CONTINUE, DOES NOT REQUIRE THAT THE CHARTER INVOLUNTARY LIQUIDATION
PREFERENCE REPLACE INVESTMENT VALUES AS THE MEASURE OF THE PREFERRED
STOCKHOLDERS' RIGHTS.  SCHWABACHER V. UNITED STATES, 334 U.S. 182.  PP.
132-135. 

(D)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE PLAN
PROVIDES FOR PAYMENT OF THE PREFERRED STOCKHOLDERS IN CASH RATHER THAN
IN SECURITIES OF A NEW CORPORATION.  P. 135. 

(E)  THE DOCTRINE OF IMPOSSIBILITY OR FRUSTRATION DOES NOT PROVIDE A
MEASURE OF THE SECURITY HOLDERS' CLAIMS.  PP. 136-139. 

3.  THE COMMISSION'S APPLICATION OF THE INVESTMENT VALUE PRINCIPLE
WAS FREE FROM ERRORS OF LAW; AND THE FINDINGS WITH RESPECT TO VALUE
WERE BASED UPON SUBSTANTIAL EVIDENCE.  PP. 139-152. 

(A)  THE PRINCIPLE OF COMPENSATING SECURITY HOLDERS BY ALLOWING THEM
THE EQUITABLE EQUIVALENT OF THE PRESENT GOING-CONCERN VALUE OF THEIR
SECURITIES AS THE MEASURE OF SECURITY SATISFACTION DID NOT, AND WAS NOT
INTENDED TO, DESTROY THE CHARTER RIGHT TO PRIORITY OF SATISFACTION.  P.
140. 

(B)  WHEN THE COMMISSION VALUES A SECURITY INTEREST BY DETERMINING
THE VALUE THAT INTEREST WOULD HAVE IF IT WERE NOT FOR THE PRESENT
LIQUIDATION REQUIRED BY THE ACT, IT SUBSTANTIALLY COMPLIES WITH THE
STATUTORY MANDATE.  PP. 140-143. 

(C)  WHEN THE CLAIMS OF SENIOR SECURITY HOLDERS ARE TO BE PAID IN
CASH, THE COMMISSION PROPERLY MEASURES THEIR CLAIMS IN TERMS OF THE
COST OF REINVESTMENT IN A SECURITY OF COMPARABLE RISK AND RETURN.  P.
144. 

(D)  WHEN IT BECAME APPARENT THAT THE GOING-CONCERN VALUE WOULD
EXCEED THE CALL PRICES OF THE STOCKS BY A CONSIDERABLE AMOUNT, THE
EXACT GOING-CONCERN VALUE BECAME IMMATERIAL, BECAUSE THE CALL PRICE (AT
WHICH THE CORPORATION COULD ALWAYS RETIRE THE PREFERRED STOCK WITHOUT
REFERENCE TO THE ACT) MARKED THE LIMITS OF THE PREFERRED STOCKS'
CLAIMS.  P. 145. 

(E)  THE COMMISSION'S DETERMINATION THAT THE INVESTMENT VALUES OF THE
PREFERRED STOCKS WERE IN EXCESS OF THEIR CALL PRICES HAS AMPLE SUPPORT
IN THE RECORD.  PP. 144-148. 

(F)  THE COMMISSION DID NOT GIVE THE COMMON STOCKHOLDERS LESS THAN
THE INVESTMENT VALUE OF THEIR STOCK.  PP. 148-151. 

(G)  SINCE THE AMENDED PLAN REQUIRED THE INVESTMENT VALUE OF THE
PREFERRED STOCK TO BE MEASURED BY CASH IN THIS CASE, THERE IS NO
OCCASION FOR EXAMINATION OF THE CORRELATIVE RIGHTS OF THE PREFERRED AND
COMMON STOCKHOLDERS; THE RIGHTS OF THE COMMON STOCKHOLDERS ARE NOT
ENTITLED TO RECOGNITION UNTIL THE RIGHTS OF THE PREFERRED STOCKHOLDERS
HAVE BEEN FULLY SATISFIED.  P. 151. 

(H)  IN DECIDING THE CASE ON THE ASSUMPTION THAT THE INQUIRY WAS ONE
OF "RELATIVE RIGHTS BASED ON COLLOQUIAL EQUITY," THE DISTRICT COURT
ERRED INSOFAR AS BY "COLLOQUIAL EQUITIES" IT MEANT CONSIDERATIONS WHICH
DO NOT BEAR UPON THE INVESTMENT OR GOING-CONCERN VALUE THE PREFERRED
STOCKS WOULD HAVE ABSENT THE LIQUIDATION COMPELLED BY THE ACT.  PP. 151
152. 

4.  THE ESCROW ARRANGEMENT ADOPTED BY THE DISTRICT COURT, WHEREBY
THERE WOULD BE DEPOSITED IN ESCROW THE DIFFERENCE BETWEEN THE
INVOLUNTARY LIQUIDATION PRICE OF $100 PER SHARE AND THE AMOUNT WHICH
THE COMMISSION APPROVED, WAS FAIR TO THE PREFERRED STOCKHOLDERS.  PP.
152-155. 

SECURITIES AND EXCHANGE COMMISSION V. CENTRAL-ILLINOIS SECURITIES
CORP. ET AL. 

NO. 226.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT* . 

*TOGETHER WITH NO. 227, STREETER ET AL. V. CENTRAL-ILLINOIS
SECURITIES CORP. ET AL.; NO. 243, HOME INSURANCE CO. ET AL. V. CENTRAL
ILLINOIS SECURITIES CORP. ET AL.; AND NO. 266, CENTRAL-ILLINOIS
SECURITIES CORP. ET AL. V. SECURITIES AND EXCHANGE COMMISSION ET AL.,
ALSO ON CERTIORARI TO THE SAME COURT. 

A PLAN UNDER SEC. 11(E) OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF
1935 WAS APPROVED BY THE SECURITIES AND EXCHANGE COMMISSION.  HOLDING
COMPANY ACT RELEASES NOS. 7041, 7119, AND 7190.  THE DISTRICT COURT
MODIFIED THE PLAN AND APPROVED IT AS MODIFIED.  71 F.SUPP.  797.  THE
COURT OF APPEALS VACATED THE DECREE OF THE DISTRICT COURT, WITH
DIRECTIONS TO REMAND TO THE COMMISSION.  168 F.2D 722.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 851.  REVERSED AND REMANDED, P. 155. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES AN AMENDED PLAN FILED UNDER SEC. 11(E) OF THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935  FN1 BY ENGINEERS PUBLIC
SERVICE COMPANY.  THE PLAN PROVIDED, INTER ALIA, FOR SATISFYING THE
CLAIMS OF ENGINEERS' PREFERRED STOCKHOLDERS IN CASH AS A PRELIMINARY TO
DISTRIBUTING THE REMAINING ASSETS TO COMMON STOCKHOLDERS AND DISSOLVING
THE COMPANY.  BROADLY, THE QUESTION IS WHETHER THE SECURITIES AND
EXCHANGE COMMISSION, IN REVIEWING THE PLAN, CORRECTLY APPLIED THE "FAIR
AND EQUITABLE" STANDARD OF SEC. 11(E) IN DETERMINING THE AMOUNTS TO BE
PAID THE PREFERRED STOCKHOLDERS IN SATISFACTION OF THEIR CLAIMS. 

AS WILL APPEAR, THE ULTIMATE EFFECT OF THE COMMISSION'S DETERMINATION
WAS TO ALLOW THE HOLDERS OF THE THREE SERIES OF ENGINEERS' OUTSTANDING
CUMULATIVE PREFERRED STOCK TO RECEIVE THE CALL (OR VOLUNTARY
LIQUIDATION AND REDEMPTION) PRICES FOR THEIR SHARES, NAMELY, $105 PER
SHARE, $110 PER SHARE AND $110 PER SHARE, RATHER THAN THE INVOLUNTARY
LIQUIDATION PREFERENCE WHICH, FOR EACH OF THE THREE SERIES, WAS $100
PER SHARE.  COMMON SHAREHOLDERS OPPOSE THE ALLOWANCE TO THE PREFERRED
OF THE CALL PRICE VALUE, INSISTING THAT THE MAXIMUM TO WHICH THE
PREFERRED ARE ENTITLED IS THE INVOLUNTARY LIQUIDATION PREFERENCE OF
$100. 

IN THIS VIEW THE DISTRICT COURT AND, GENERALLY SPEAKING, THE COURT OF
APPEALS HAVE CONCURRED, DECLINING TO GIVE EFFECT TO THE PLAN AS
APPROVED IN THIS RESPECT BY THE COMMISSION.  CONSEQUENTLY WE ARE
CONFRONTED NOT ONLY WITH ISSUES CONCERNING THE PROPRIETY OF THE
COMMISSION'S ACTION IN APPLYING THE "FAIR AND EQUITABLE" STANDARD OF
SEC. 11(E), BUT WITH THE FURTHER QUESTION WHETHER ITS JUDGMENT IN THESE
MATTERS IS TO BE GIVEN EFFECT OR THAT OF THE DISTRICT COURT, EITHER AS
EXERCISED BY IT OR AS MODIFIED IN CERTAIN RESPECTS BY THE COURT OF
APPEALS. 

THE FACTS AND THE SUBSIDIARY ISSUES INVOLVED IN THE VARIOUS
DETERMINATIONS ARE OF SOME COMPLEXITY AND MUST BE SET FORTH IN
CONSIDERABLE DETAIL FOR THEIR APPROPRIATE UNDERSTANDING AND
DISPOSITION. 

AT THE TIME THE PUBLIC UTILITY HOLDING COMPANY ACT WAS ENACTED, THE
HOLDING COMPANY SYSTEM DOMINATED BY ENGINEERS CONSISTED OF 17 UTILITY
AND NONUTILITY COMPANIES.  OF THESE, NINE WERE DIRECT SUBSIDIARIES OF
ENGINEERS AND EIGHT WERE INDIRECT SUBSIDIARIES.  INTEGRATION
PROCEEDINGS UNDER SEC. 11(B)(1) OF THE ACT WERE INSTITUTED WITH RESPECT
TO ENGINEERS AND ITS SUBSIDIARIES IN 1940.  IN A SERIES OF ORDERS
ISSUED IN 1941 AND 1942 THE SECURITIES AND EXCHANGE COMMISSION DIRECTED
ENGINEERS TO DISPOSE OF ITS INTERESTS IN ALL COMPANIES EXCEPT EITHER
VIRGINIA ELECTRIC AND POWER COMPANY OR GULF STATES UTILITIES COMPANY,
AND DESIGNATED VIRGINIA AS THE PRINCIPAL SYSTEM IF ENGINEERS FAILED TO
ELECT BETWEEN IT AND GULF STATES.  FN2  AT THE TIME THE PLAN NOW UNDER
REVIEW WAS FILED ENGINEERS HAD COMPLIED WITH THE DIVESTMENT ORDERS TO
THE EXTENT OF DISPOSING OF ALL ITS PROPERTIES EXCEPT ITS INTEREST IN
VIRGINIA, CONSISTING OF 99.8 PER CENT OF THAT COMPANY'S COMMON STOCK,
AND ITS INTEREST IN GULF STATES AND EL PASO ELECTRIC COMPANY,
CONSISTING OF ALL THEIR COMMON STOCK.  ENGINEERS' PRINCIPAL ASSETS WERE
THE SECURITIES REPRESENTING ITS INTEREST IN THESE COMPANIES AND
$14,650,000 IN CASH AND UNITED STATES TREASURY SECURITIES. 

ENGINEERS HAD NO DEBTS.  IT HAD OUTSTANDING THREE SERIES OF
CUMULATIVE PREFERRED STOCK OF EQUAL RANK:  143,951 SHARES OF $5 ANNUAL
DIVIDEND SERIES, 183,406 SHARES OF $5.50 SERIES, AND 65,098 SHARES OF
$6 SERIES.  AS HAS BEEN SAID, ALL THREE SERIES HAD INVOLUNTARY
LIQUIDATION PREFERENCES OF $100 PER SHARE, CALL PRICES OF $105 FOR THE
$5 SERIES AND $110 FOR THE $5.50 AND $6 SERIES, AND VOLUNTARY
LIQUIDATION PREFERENCES EQUAL TO THE CALL PRICES. 

PROCEEDINGS BEFORE THE COMMISSION.  THE PLAN AS ORIGINALLY FILED. 
THE PLAN AS ORIGINALLY FILED BY ENGINEERS PROVIDED FOR THE RETIREMENT
OF ALL THREE SERIES OF PREFERRED STOCK BY PAYMENT OF THE INVOLUNTARY
LIQUIDATION PREFERENCE OF $100 PER SHARE, PLUS ACCRUED DIVIDENDS TO THE
DATE OF PAYMENT.  FN3  THE REMAINING PROPERTIES OF ENGINEERS WERE THEN
TO BE DISTRIBUTED AMONG THE COMMON STOCKHOLDERS, AND ENGINEERS WAS TO
DISSOLVE.  FN4 

IN ORDER TO INSURE ADEQUATE PRESENTATION OF THE VIEWS OF THE
PREFERRED STOCKHOLDERS, ENGINEERS' BOARD OF DIRECTORS AUTHORIZED ONE OF
ITS MEMBERS, THOMAS W. STREETER, WHO WAS PRIMARILY INTERESTED IN THE
PREFERRED STOCK, TO RETAIN COUNSEL PARTLY AT THE COMPANY'S EXPENSE. 
STREETER AND MEMBERS OF HIS FAMILY ARE PETITIONERS IN NO. 227.  THESE
PREFERRED STOCKHOLDERS AND REPRESENTATIVES OF A GROUP OF INSTITUTIONAL
INVESTORS WHO HELD PREFERRED STOCK, THE HOME INSURANCE COMPANY AND
TRADESMENS NATIONAL BANK AND TRUST COMPANY, PETITIONERS IN NO. 243,
APPEARED BEFORE THE COMMISSION IN OPPOSITION TO THE PLAN.  THEY
CONTENDED THAT THEY SHOULD RECEIVE AMOUNTS EQUAL TO THE VOLUNTARY
LIQUIDATION PREFERENCE OF THE PREFERRED. 

AFTER SUMMARIZING THE ISSUING PRICES,  FN5  THE DIVIDEND HISTORY,
FN6  AND THE MARKET HISTORY FN7  OF THE THREE SERIES OF PREFERREDS, THE
COMMISSION ANALYZED THE ASSETS COVERAGE AND EARNINGS COVERAGE OF THE
STOCK.  THE PREFERRED STOCK OF ENGINEERS REPRESENTED 17.5 PER CENT OF
THE CONSOLIDATED CAPITALIZATION AND SURPLUS OF THE SYSTEM.  THAT STOCK
WAS JUNIOR TO THE 66.2 PER CENT OF THE CONSOLIDATED CAPITALIZATION AND
SURPLUS WHICH CONSISTED OF SECURITIES OF ENGINEERS' SUBSIDIARIES HELD
BY THE PUBLIC, AND SENIOR TO 16.3 PER CENT, CONSISTING OF ENGINEERS'
TOTAL COMMON STOCK AND SURPLUS. 

THE SYSTEM'S AVERAGE EARNINGS COVERAGE OF FIXED CHARGES AND PREFERRED
DIVIDENDS FOR THE LAST FIVE YEARS PRIOR TO THE SUBMISSION OF THE PLAN
WAS 1.4 TIMES.  FOR THESE FIVE YEARS ENGINEERS' AVERAGE EARNINGS
COVERAGE OF PREFERRED DIVIDENDS WAS 1.5 TIMES. 

CERTAIN EXPERT TESTIMONY CONCERNING THE GOING-CONCERN OR INVESTMENT
VALUE OF THE PREFERRED STOCK WAS ADDUCED BEFORE THE COMMISSION.  DR.
RALPH E. BADGER WAS AN EXPERT WITNESS ON BEHALF OF CERTAIN PREFERRED
STOCKHOLDERS.  HE MADE A DETAILED ANALYSIS OF THE EARNINGS AND ASSETS
OF ENGINEERS AND OF THE THREE SERIES OF PREFERRED STOCK.  HE THEN
COMPARED ENGINEERS AND THE PREFERRED STOCK WITH RELEVANT INFORMATION
CONCERNING OTHER COMPARABLE COMPANIES AND SECURITIES.  FN8  HE
CONCLUDED THAT, APART FROM THEIR CALL PROVISIONS AND ON THE BASIS OF
QUALITY AND YIELD, THE THREE SERIES OF PREFERRED STOCK SHOULD BE VALUED
AT $108.70, $119.57, AND $130.33 RESPECTIVELY, BUT THAT BECAUSE OF THE
REDEMPTION PRIVILEGE, "THE PRESENT INVESTMENT VALUES ARE REPRESENTED BY
THEIR CALL PRICE, PLUS A SLIGHT PREMIUM TO ACCOUNT FOR THE TIME
REQUIRED TO EFFECT A CALL."  THE FAIR INVESTMENT VALUES OF THE
PREFERRED, IN VIEW OF THE REDEMPTION PRIVILEGE, WERE:  $5 SERIES -
$106.25; $5.50 SERIES - $111.38; $6 SERIES - $111.50.  NO REBUTTAL
TESTIMONY WAS INTRODUCED, AND THERE WAS NO SERIOUS CHALLENGE TO
BADGER'S CONCLUSIONS THAT THE FAIR INVESTMENT VALUE OF EACH SERIES OF
THE PREFERRED EXCEEDED THE CALL PRICES. 

DONALD C. BARNES, ENGINEERS' PRESIDENT, TESTIFIED THAT APART FROM THE
IMPACT OF SEC. 11 OF THE ACT AND TAKING INTO ACCOUNT THE CALL PRICES,
THE FAIR VALUE OF THE PREFERREDS, I.E., "WHAT A WILLING BUYER WOULD PAY
AND WHAT A WILLING SELLER WOULD TAKE IN TODAY'S MARKET FOR SUCH
SECURITIES," WAS SOMEWHAT ABOVE THE REDEMPTION PRICES.  BARNES SPOKE OF
SEVERAL FACTORS, VIZ., POSSIBILITIES OF CONTINUED INFLATION, OF
DEPRESSION, GOVERNMENT COMPETITION, ADVERSE CHANGES IN REGULATORY
POLICY, OR DEVELOPMENTS IN ATOMIC ENERGY, ALL "COMMON TO THE UTILITY
INDUSTRY GENERALLY," WHICH MIGHT HAVE A FUTURE ADVERSE EFFECT ON THE
VALUE OF ENGINEERS PREFERRED.  BOTH WITNESSES AGREED, HOWEVER, AS
ENGINEERS STATED IN ITS BRIEF BEFORE THE COMMISSION, THAT "THE PRESENT
VALUE OR INVESTMENT WORTH OF THESE THREE SERIES OF STOCK, ON A GOING
CONCERN BASIS AND APART FROM THE ACT, UNDER PREVAILING YIELDS APPLIED
TO COMPARABLE SECURITIES" WAS IN EXCESS OF THE CALL PRICES.  BARNES
ALSO TESTIFIED THAT THE PREFERRED STOCK WOULD HAVE BEEN CALLED IF IT
HAD NOT BEEN FOR THE IMPACT OF SEC. 11. 

THE COMMISSION FIRST HELD THAT "THE DISSOLUTION OF ENGINEERS (WAS)
'NECESSARY' UNDER THE STANDARDS OF THE ACT."  HOWEVER, SINCE SUCH A
LIQUIDATION, UNDER OTIS & CO. V. SECURITIES AND EXCHANGE COMMISSION,
323 U.S. 624, "DOES NOT MATURE PREFERRED STOCKHOLDERS' CLAIMS," THE SO
CALLED INVOLUNTARY LIQUIDATION PROVISION OF ENGINEERS' CHARTER WAS NOT
OPERATIVE.  THE OTIS CASE RULED "THAT CONGRESS DID NOT INTEND THAT ITS
EXERCISE OF POWER TO SIMPLIFY SHOULD MATURE RIGHTS, CREATED WITHOUT
REGARD TO THE POSSIBILITY OF SIMPLIFICATION OF SYSTEM STRUCTURE, WHICH
OTHERWISE WOULD ONLY ARISE BY VOLUNTARY ACTION OF STOCKHOLDERS OR,
INVOLUNTARILY, THROUGH ACTION OF CREDITORS."  323 U.S. AT 638. 

AFTER ANNOUNCING THAT IN A SEC. 11 REORGANIZATION "A SECURITY HOLDER
MUST RECEIVE, IN THE ORDER OF HIS PRIORITY, FROM THAT WHICH IS
AVAILABLE FOR THE SATISFACTION OF HIS CLAIM, THE EQUITABLE EQUIVALENT
OF THE RIGHTS SURRENDERED," THE COMMISSION CONSIDERED ALL THE CHARTER
PROVISIONS WHICH AFFECTED THE PREFERRED, "SUCH AS THE DIVIDEND RATE AND
THE CALL PRICE AS WELL AS THE LIQUIDATION PREFERENCES," AND ANALYZED
THE FINANCIAL CONDITION OF THE COMPANY "WITH PARTICULAR REGARD TO THE
ASSET AND EARNINGS COVERAGE OF THE PREFERRED."  ON THE BASIS OF THE
UNDISPUTED TESTIMONY THE COMMISSION FOUND THAT THE GOING-CONCERN OR
INVESTMENT VALUE OF THE PREFERRED WAS AT LEAST EQUAL TO THE RESPECTIVE
CALL PRICES.  SINCE THE CALL PRICES OPERATED AS CEILINGS ON THE VALUE
OF THE SECURITY BY PROVIDING WITH RESPECT TO EACH SERIES, "A MEANS,
APART FROM THE ACT, WHEREBY THE SECURITY CAN BE RETIRED AT A MAXIMUM
PRICE,"  FN9  NO ATTEMPT WAS MADE TO DETERMINE WHETHER THE INVESTMENT
VALUE OF ANY SERIES OF PREFERRED WOULD EXCEED THE CALL PRICE IF THERE
WERE NO CALL PROVISION. 

THE COMMISSION CONCLUDED THAT THE PAYMENT OF ONLY $100 PER SHARE,
PLUS ACCRUED DIVIDENDS, WOULD NOT BE FAIR AND EQUITABLE TO THE
PREFERRED STOCKHOLDERS.  IT THEREFORE REFUSED TO APPROVE THAT PROVISION
OF THE PLAN WHICH PROVIDED FOR RETIREMENT OF THE PREFERRED AT
INVOLUNTARY LIQUIDATION PREFERENCES. 

TURNING ITS ATTENTION TO WHETHER THE PLAN WAS FAIR TO THE COMMON
STOCK, THE COMMISSION STATED THAT, BECAUSE OF THE ACCUMULATION OF LARGE
AMOUNTS OF IDLE CASH,  FN10  ELIMINATION OF PREFERRED STOCK HAVING
FIXED DIVIDEND REQUIREMENTS WAS "HIGHLY BENEFICIAL TO THE COMMON." 
MOREOVER, BY IMPLEMENTING ADJUSTMENT OF THE SYSTEM TO COMPLIANCE WITH
THE ACT, RETIREMENT OF THE PREFERRED BROUGHT THE COMMON CLOSER TO THE
TIME WHEN IT WOULD BEGIN RECEIVING DIVIDENDS. 

ENGINEERS CONTENDED THAT PAYMENT TO THE PREFERRED OF ANY AMOUNT IN
EXCESS OF $100 PER SHARE WAS UNFAIR, BECAUSE CERTAIN DIVESTMENTS
REQUIRED BY THE ACT RESULTED IN LOSSES TO THE COMMON STOCK AND ALSO
ELIMINATED THE ADVANTAGES OF A "DIVERSIFIED PORTFOLIO OF SECURITIES." 
IN REPLY TO THIS THE COMMISSION NOTED THAT IT DID NOT ACCEPT THE
HYPOTHESIS THAT LOSSES WERE INCURRED BY DIVESTMENTS CAUSED BY THE ACT,
FN11  AND STATED THAT THE PREFERRED CLAIMS, MEASURED BY THEIR GOING
CONCERN VALUE, WERE ENTITLED TO ABSOLUTE PRIORITY, AND THAT WHAT
REMAINED TO JUNIOR SECURITY HOLDERS AFTER SATISFYING THIS PRIORITY WAS
NECESSARILY THEIR FAIR SHARE. 

CERTAIN MECHANICAL FEATURES OF THE PLAN WERE ALSO DISAPPROVED BY THE
COMMISSION.  FN12 

THE AMENDED PLAN.  ENGINEERS THEN ACQUIESCED IN THE COMMISSION'S
DETERMINATION AND SUBMITTED AN AMENDED PLAN.  IN ADDITION TO MEETING
THE COMMISSION'S MECHANICAL OBJECTIONS TO THE ORIGINAL PLAN, THE
AMENDED PLAN PROVIDED FOR PAYMENT OF THE PREFERRED STOCKS AT THEIR
VOLUNTARY LIQUIDATION OR CALL PRICES. 

OVER THE OBJECTIONS OF CERTAIN COMMON STOCKHOLDERS, THE COMMISSION
APPROVED THE PLAN AS AMENDED.  IT STATED THAT, IN THE EVENT THE COMMON
STOCKHOLDERS CONTINUED TO LITIGATE THE FAIRNESS OF THE PLAN AFTER
APPROVAL BY THE DISTRICT COURT, IT WOULD BE APPROPRIATE "TO ACHIEVE
EXPEDITIOUS COMPLIANCE WITH THE ACT AND FAIRNESS TO THE PERSONS
AFFECTED  ...  FOR ENGINEERS TO MAKE PROMPT PAYMENT OF $100 PER SHARE
AND ACCRUED DIVIDENDS IN ORDER TO STOP THE ACCRUAL OF FURTHER
DIVIDENDS, AND SET UP AN ESCROW ARRANGEMENT."  THE ESCROW WOULD SECURE
THE PAYMENT OF THE AMOUNT IN ISSUE AND ALSO "AN ADDITIONAL AMOUNT TO
PROVIDE THE PREFERRED 'FOR THE PERIOD OF THE ESCROW A RETURN ON THE
AMOUNT IN ESCROW WHICH IS MEASURED BY THE RETURN WHICH WOULD HAVE BEEN
RECEIVED BY IT IF THE STOCK REMAINED OUTSTANDING.'"  SUCH AN ESCROW
COULD BE ESTABLISHED UNDER COURT SUPERVISION WITHOUT RETURNING THE PLAN
TO THE COMMISSION.  HOLDING COMPANY ACT RELEASE NO. 7119, P. 6.  BY
LATER ORDER THE COMMISSION PROVIDED FOR THE ESTABLISHMENT OF SUCH AN
ESCROW AT THE OPTION OF ENGINEERS IF IT APPEARED LIKELY THAT COMMON
STOCKHOLDERS WOULD LITIGATE BEYOND THE DISTRICT COURT.  HOLDING COMPANY
ACT RELEASE NO. 7190.  FN13    PROCEEDINGS IN THE DISTRICT COURT.  THE
COMMISSION APPLIED TO THE DISTRICT COURT FOR THE DISTRICT OF DELAWARE
FOR APPROVAL OF THE PLAN AS AMENDED.  SEC. 11(E).  CERTAIN COMMON
STOCKHOLDERS, RESPONDENTS IN NOS. 226, 227, AND 243, AND PETITIONERS IN
NO. 266, FILED OBJECTIONS TO THE PLAN, CONTENDING THAT THE COMMISSION
HAD ERRED IN AWARDING TO THE PREFERRED STOCKHOLDERS THE EQUIVALENT OF
THE VOLUNTARY LIQUIDATION PREFERENCES OF THEIR SHARES.  THE STREETER
GROUP OF PREFERRED STOCKHOLDERS OBJECTED TO THE COMMISSION'S FINDING OF
THE APPROPRIATENESS OF AN ESCROW ARRANGEMENT TO STOP THE ACCRUAL OF
FURTHER DIVIDENDS IN THE EVENT OF CONTINUED LITIGATION. 

THE DISTRICT COURT CONSIDERED THE CASE ON THE RECORD MADE BEFORE THE
COMMISSION.  IT PREFERRED NOT TO DETERMINE WHETHER THE INVOLUNTARY
LIQUIDATION PREFERENCES CONTROLLED, BUT STATED THAT "IN EACH CASE THE
INQUIRY IS ONE OF RELATIVE RIGHTS BASED ON COLLOQUIAL EQUITY."  71
F.SUPP.  797, 802.  THAT STANDARD, THOUGHT THE COURT, NECESSITATED
CONSIDERATION OF VARIOUS FACTORS TO WHICH IT WAS THOUGHT THE COMMISSION
HAD ATTACHED LITTLE OR NO IMPORTANCE.  THUS IT WAS IMPORTANT TO
CONSIDER NOT ONLY THE CHARTER PROVISIONS BUT THE ISSUING PRICE IN TERMS
OF WHAT THE COMPANY RECEIVED FOR THE SECURITIES, AND THE MARKET HISTORY
OF THE PREFERRED.  THESE FACTORS MIGHT MORE THAN OFFSET THE FACTOR OF
INVESTMENT VALUE, THE TESTIMONY AS TO WHICH THE COURT ACCEPTED.  IN ANY
EVENT, THOUGHT THE COURT, SEVERAL OTHER CONSIDERATIONS HAVE THIS
EFFECT.  THE ACT, IN ADDITION TO COMPELLING THE PREFERRED STOCKHOLDERS
TO SURRENDER "THIS PRESENT ENHANCED VALUE," WORKED HARDSHIPS ON THE
COMMON.  ALL CLASSES OF SECURITIES, THE COURT SAID, SUFFERED LOSSES AS
A RESULT OF THE DIVESTMENT ORDERS ISSUED BY THE COMMISSION UNDER THE
ACT.  EARNINGS RETAINED IN THE SYSTEM AT A SACRIFICE TO THE COMMON
CONTRIBUTED TO THE ENHANCEMENT OF THE VALUE OF THE PREFERRED.  THESE
STANDARDS OF "COLLOQUIAL EQUITY," WHICH THE DISTRICT COURT CONCEIVED TO
BE CONTROLLING IN OUR DECISION IN OTIS & CO. V. SECURITIES AND EXCHANGE
COMMISSION, SUPRA, COMPELLED THE CONCLUSION THAT IT WOULD NOT BE FAIR
AND EQUITABLE TO GIVE THE PREFERRED MORE THAN $100 PER SHARE. 
ARGUMENTS CONCERNING THE WORTH OF THE PREFERRED IN THE ABSENCE OF A
PUBLIC UTILITY HOLDING COMPANY ACT WERE THOUGHT NOT PROFITABLE TO
CONSIDER "FOR THERE IS A PUBLIC UTILITY HOLDING COMPANY ACT."  IN
EFFECT AMENDING THE PLAN TO PROVIDE FOR PAYMENT OF THE PREFERRED AT
$100 PER SHARE, THE DISTRICT COURT APPROVED THE PLAN AS THUS AMENDED. 
THE ESCROW AGREEMENT PRESCRIBED BY THE COMMISSION WAS APPROVED, THE
COURT CONCLUDING THAT THERE WAS NO MERIT IN THE PREFERRED STOCKHOLDERS'
OBJECTIONS TO THIS FEATURE.  71 F.SUPP.  797. 

PROCEEDINGS IN THE COURT OF APPEALS.  THE COURT OF APPEALS FOR THE
THIRD CIRCUIT REGARDED AS A CENTRAL ISSUE IN THE CASE THE QUESTION
WHETHER THE DISTRICT COURT HAD EXCEEDED THE SCOPE OF REVIEW PROPERLY
EXERCISED BY A DISTRICT COURT REVIEWING A PLAN UNDER SEC. 11(E) OF THE
PUBLIC UTILITY HOLDING COMPANY ACT.  IT CONCLUDED THAT THE DISTRICT
COURT WAS CHARGED WITH THE DUTY OF EXERCISING A FULL AND INDEPENDENT
JUDGMENT AS TO THE FAIRNESS AND EQUITY OF A PLAN, "TO FUNCTION AS AN
EQUITY REORGANIZATION TRIBUNAL WITHIN THE LIMITATIONS PRESCRIBED BY THE
ACT."  168 F.2D 722, 736. 

TURNING TO THE VARIOUS FACTORS WHICH SHOULD HAVE BEEN TAKEN INTO
CONSIDERATION IN ARRIVING AT THE EQUITABLE EQUIVALENT TO THE RIGHTS
SURRENDERED BY THE PREFERRED SHAREHOLDERS, THE COURT OF APPEALS
CRITICIZED THE COMMISSION FOR FINDING THE INVESTMENT VALUE OF THE
PREFERRED AS IF THERE WERE NO HOLDING COMPANY ACT WHILE OMITTING TO
EVALUATE THE COMMON BY THE SAME STANDARD, AND FOR FAILING TO CONSIDER
FACTORS OTHER THAN THE INVESTMENT VALUE.  IT WAS THOUGHT THAT THE
COMMISSION SHOULD HAVE ESTIMATED THE FUTURE EARNING POWER OF ENGINEERS,
ABSENT A HOLDING COMPANY ACT, AND APPORTIONED THAT POWER BETWEEN
PREFERRED AND COMMON STOCKHOLDERS IN ACCORDANCE WITH THEIR RESPECTIVE
CLAIMS.  IT WAS ALSO THOUGHT THAT, IN THE PROCESS OF VALUING THE
PREFERRED AND THE COMMON BY THE SAME APPROACH, THE COMMISSION SHOULD
HAVE CONSIDERED "THE SUBSTANTIAL LOSSES WHICH OCCURRED TO ENGINEERS BY
VIRTUE OF DIVESTITURES COMPELLED BY THE ACT."  FN14 LOSSES OF THIS
NATURE "SHOULD BE RETURNED TO THE CREDIT SIDE OF THE ENTERPRISE'S
BALANCE SHEET AS A MATTER OF BOOKKEEPING."  ID. AT 737-738. 

BUT EVEN AN INVESTMENT VALUE FIGURE PROPERLY ARRIVED AT IS "ONLY ONE
OF A SERIES OF FACTORS TO BE USED IN ARRIVING AT EQUITABLE
EQUIVALENTS."  THE COMMISSION WAS REQUIRED TO CONSIDER "ALL PERTINENT
FACTORS AND ALL SUBSTANTIAL EQUITIES," WHICH PRESUMABLY INCLUDED THE
"COLLOQUIAL EQUITIES" ADVERTED TO BY THE DISTRICT COURT.  ID. AT 738. 

THE DISTRICT COURT, HOWEVER, WAS HELD TO HAVE ERRED IN ONE
PARTICULAR:  IT HAD AMENDED THE PLAN BY SUBSTITUTING ITS OWN VALUATION
OF $100 PER SHARE FOR THE PREFERRED STOCK FOR THAT OF THE COMMISSION. 
THE COURT HAD NO POWER TO DO THIS.  IT COULD ONLY REJECT THE
COMMISSION'S VALUATION, AND RETURN THE CASE TO THE COMMISSION FOR
FURTHER ACTION IN THE LIGHT OF THE COURT'S VIEWS. 

AT THE TIME THE OPINION OF THE COURT OF APPEALS WAS RENDERED, THE
PLAN HAD BEEN CONSUMMATED, WITH THE EXCEPTION OF THE PAYMENT OF THE
DISPUTED AMOUNTS IN EXCESS OF THE INVOLUNTARY LIQUIDATION PREFERENCES
OF THE PREFERRED.  THE ESCROW ARRANGEMENT, WHICH HAD BEEN EMPLOYED TO
PRESERVE THE ISSUE OF THE AMOUNT TO WHICH THE PREFERRED WAS ENTITLED
AFTER HAVING BEEN APPROVED BY THE COMMISSION AND THE DISTRICT COURT,
WAS HELD TO BE PROPER. 

WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
PRESENTED IN THE ADMINISTRATION OF THE PUBLIC UTILITY HOLDING COMPANY
ACT.  335 U.S. 851. 

                                  I. 

THE COURT OF APPEALS WAS OF THE VIEW THAT THE QUESTION OF THE EXTENT
OF "THE POWER CONFERRED ON THE DISTRICT COURTS  ...  BY THE ACT" WAS
ONE WHICH WENT "TO THE HEART OF THE INSTANT CONTROVERSY."  168 F.2D AT
729.  THE COMMISSION APPARENTLY TOOK THE POSITION BEFORE THAT COURT
THAT THE DISTRICT COURT HAD ERRED IN SETTING ASIDE THE AGENCY'S
CONCLUSIONS UNLESS THOSE CONCLUSIONS LACKED "ANY RATIONAL AND STATUTORY
FOUNDATION."  FN15  THIS VIEW WAS REJECTED BY THE COURT OF APPEALS. 
DISTINGUISHING JUDICIAL REVIEW UNDER SEC. 24(A) AS BEING LIMITED TO THE
INQUIRY WHETHER THE COMMISSION "HAS PLAINLY ABUSED ITS DISCRETION IN
THESE MATTERS," SECURITIES AND EXCHANGE COMMISSION V. CHENERY CORP.,
332 U.S. 194, 208,  FN16  THE COURT OF APPEALS HELD THAT A SEC. 11(E)
COURT WAS CHARGED WITH THE DUTY OF EXERCISING A FULL AND INDEPENDENT
JUDGMENT AS TO THE FAIRNESS AND EQUITY OF A PLAN, "TO FUNCTION AS AN
EQUITY REORGANIZATION TRIBUNAL WITHIN THE LIMITATIONS PRESCRIBED BY THE
ACT."  168 F.2D AT 736. 

THIS POSITION IS MAINTAINED BEFORE THIS COURT BY THE REPRESENTATIVES
OF THE COMMON STOCKHOLDERS.  THE PREFERRED STOCKHOLDERS'
REPRESENTATIVES URGE THAT THE COURT OF APPEALS ERRED IN THIS REGARD,
AND THAT THE CONCLUSION OF THE COMMISSION SHOULD NOT HAVE BEEN
DISTURBED BY THE DISTRICT COURT, BECAUSE THAT CONCLUSION WAS SUPPORTED
BY SUBSTANTIAL EVIDENCE AND WAS WITHIN THE AGENCY'S STATUTORY
AUTHORITY.  THE DISTRICT COURT, IN THEIR VIEW, EXCEEDED THE PROPER
SCOPE OF REVIEW. 

THE COMMISSION APPARENTLY NO LONGER TAKES SO RESTRICTIVE A VIEW OF
THE DISTRICT COURT'S FUNCTION AS IT FORMERLY HELD.  IT NOW CONCEDES
THAT THAT COURT HAD POWER TO REVIEW "INDEPENDENTLY" THE METHOD OF
VALUATION EMPLOYED.  BUT IT URGES THAT IN THIS CASE THE QUESTION,
WHETHER A PROPER METHOD OF VALUATION WAS EMPLOYED, IS ONE OF LAW, SINCE
CONGRESS HAS ITSELF PRESCRIBED THE STANDARD FOR COMPENSATING THE
VARIOUS CLASSES OF SECURITY HOLDERS INSTEAD OF DELEGATING TO THE
COMMISSION THE TASK OF FIXING THAT STANDARD. 

IN THE ALTERNATIVE THE COMMISSION ARGUES THAT "IF, AS THE COURT BELOW
SEEMED TO ASSUME, THE QUESTION IS NOT ONE OF LAW,  ...  THE SCOPE OF
REVIEW UNDER SECTION 11(E) IS LIMITED IN THE SAME MANNER AS THAT
APPLICABLE TO DETERMINATIONS OF THE INTERSTATE COMMERCE COMMISSION
UNDER SECTION 77 OF THE BANKRUPTCY ACT," WHICH IS SAID TO EMBODY A
SIMILAR STATUTORY SCHEME AND UNDER WHICH ADMINISTRATIVE DETERMINATIONS
OF VALUATION ARE SUSTAINED IF SUPPORTED BY SUBSTANTIAL EVIDENCE AND NOT
CONTRARY TO LAW.  ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448, 473;
R.F.C. V. DENVER & RIO GRANDE W.R. CO., 328 U.S. 495, 505-509. 

THE PROBLEM OF THE SCOPE OF REVIEW WHICH CONGRESS INTENDED THE
DISTRICT COURT TO EXERCISE UNDER SEC. 11(E) ARISES FROM AND IS
COMPLICATED BY THE FACT THAT CONGRESS PROVIDED NOT ONE, BUT TWO
PROCEDURES FOR REVIEWING COMMISSION ORDERS OF THE TYPE NOW IN
QUESTION. 

THE FIRST IS AFFORDED BY SEC. 11(E) ITSELF.  IT RELATES TO ORDERS
APPROVING VOLUNTARY PLANS SUBMITTED BY ANY REGISTERED HOLDING COMPANY
OR SUBSIDIARY FOR COMPLIANCE WITH SUBSECTION (B).  THE COMMISSION IS
AUTHORIZED TO APPROVE SUCH A PLAN IF, AFTER NOTICE AND OPPORTUNITY FOR
HEARING, IT "SHALL FIND SUCH PLAN, AS SUBMITTED OR AS MODIFIED,
NECESSARY TO EFFECTUATE THE PROVISIONS OF SUBSECTION (B) AND FAIR AND
EQUITABLE TO THE PERSONS AFFECTED BY SUCH PLAN."  THEN FOLLOWS THE
PROVISION THAT "THE COMMISSION, AT THE REQUEST OF THE COMPANY, MAY
APPLY TO A COURT  ...  TO ENFORCE AND CARRY OUT THE TERMS AND
PROVISIONS OF SUCH PLAN.  IF  ...  THE COURT, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, SHALL APPROVE SUCH PLAN AS FAIR AND EQUITABLE
AND AS APPROPRIATE TO EFFECTUATE THE PROVISIONS OF SECTION 11," THE
COURT IS AUTHORIZED "AS A COURT OF EQUITY" TO TAKE EXCLUSIVE
JURISDICTION AND POSSESSION OF THE COMPANY OR COMPANIES AND THEIR
ASSETS, AND TO APPOINT A TRUSTEE, WHICH MAY BE THE COMMISSION, FOR
PURPOSES OF CARRYING OUT THE PLAN.  FN17 

THE ALTERNATIVE MODE OF REVIEW IS PROVIDED BY SEC. 24(A).  IT APPLIES
TO ALL ORDERS ISSUED BY THE COMMISSION UNDER THE ACT AND IN ABBREVIATED
FORM IS AS FOLLOWS: 

"ANY PERSON OR PARTY AGGRIEVED BY AN ORDER ISSUED BY THE COMMISSION
...  MAY OBTAIN A REVIEW OF SUCH ORDER IN THE CIRCUIT COURT OF APPEALS
...  BY FILING IN SUCH COURT, WITHIN SIXTY DAYS  ... A WRITTEN PETITION
...  (THE) COMMISSION SHALL CERTIFY AND FILE IN THE COURT A TRANSCRIPT
OF THE RECORD UPON WHICH THE ORDER COMPLAINED OF WAS ENTERED.  ...
(SUCH) COURT SHALL HAVE EXCLUSIVE JURISDICTION TO AFFIRM, MODIFY, OR
SET ASIDE SUCH ORDER, IN WHOLE OR IN PART.  NO OBJECTION TO THE ORDER
OF THE COMMISSION SHALL BE CONSIDERED BY THE COURT UNLESS SUCH
OBJECTION SHALL HAVE BEEN URGED BEFORE THE COMMISSION OR UNLESS THERE
WERE REASONABLE GROUNDS FOR FAILURE SO TO DO.  THE FINDINGS OF THE
COMMISSION AS TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL
BE CONCLUSIVE."  FN18 

THE DISTRICT COURT AND THE COURT OF APPEALS, FOCUSING THEIR ATTENTION
PRIMARILY ON SEC. 11(E), EMPHASIZED THE SECTION'S REQUIREMENT OF
APPROVAL BY THE DISTRICT COURT, THAT COURT'S DECLARED STATUS "AS A
COURT OF EQUITY," AND THE ABSENCE FROM SEC. 11(E) OF SUCH EXPLICIT
PROVISIONS AS THOSE OF SEC. 24(A) MAKING THE COMMISSION'S FINDINGS OF
FACT CONCLUSIVE, IF SUPPORTED BY SUBSTANTIAL EVIDENCE; LIMITING THE
COURT TO CONSIDERATION OF OBJECTIONS URGED BEFORE THE COMMISSION IN THE
ABSENCE OF REASONABLE GROUNDS FOR FAILURE TO URGE THEM; AND RESTRICTING
THE COURT'S CONSIDERATION TO THE RECORD MADE BEFORE THE COMMISSION IN
THE ABSENCE OF ANY SHOWING REQUIRING REMAND TO THE COMMISSION FOR THE
TAKING OF ADDITIONAL EVIDENCE. 

CHIEFLY FROM THESE FACTORS THE TWO COURTS REACHED THEIR RESPECTIVE
CONCLUSIONS THAT THE DISTRICT COURT WAS REQUIRED TO EXERCISE A FULL AND
INDEPENDENT JUDGMENT AS TO THE FAIRNESS AND EQUITY OF THE PLAN,
FUNCTIONING AS AN EQUITY REORGANIZATION TRIBUNAL WITHIN THE LIMITATIONS
PRESCRIBED BY THE ACT.  HOWEVER, THEY DIFFERED, AS HAS BEEN NOTED,
CONCERNING THE SCOPE OF THOSE LIMITATIONS. 

THE DISTRICT COURT THOUGHT IT WAS AUTHORIZED TO SUBSTITUTE ITS OWN
JUDGMENT FOR THAT OF THE COMMISSION AS TO WHETHER THE PLAN WAS "FAIR
AND EQUITABLE," AFTER CONSIDERING INDEPENDENTLY THE VARIOUS MATTERS IT
DENOMINATED AS "COLLOQUIAL EQUITIES."  ACCORDINGLY, AFTER REACHING
NUMEROUS CONCLUSIONS ON THOSE MATTERS CONTRARY TO THE COMMISSION'S OR
NOT GIVEN FINAL EFFECT IN ITS DETERMINATIONS, THE COURT ARRIVED AT AN
OVER-ALL JUDGMENT OPPOSITE TO THAT OF THE COMMISSION AND HELD THE PLAN
NOT "FAIR AND EQUITABLE" TO THE COMMON STOCKHOLDERS IN AWARDING THE
PREFERRED MORE THAN $100 PER SHARE.  MODIFYING THE PLAN TO ALLOW THE
LATTER ONLY THAT AMOUNT, THE COURT ORDERED IT ENFORCED AS MODIFIED. 

THE COURT OF APPEALS WAS IN GENERAL AGREEMENT WITH THE DISTRICT COURT
CONCERNING ITS POWER TO EXERCISE A FULL AND INDEPENDENT JUDGMENT IN
GIVING OR WITHHOLDING APPROVAL OF THE PLAN AS "FAIR AND EQUITABLE" AND,
ON THE WHOLE, WAS IN ACCORD WITH THE DISTRICT COURT'S DISPOSITIONS OF
THE MATTERS OF "COLLOQUIAL EQUITY."  STRESSING STATEMENTS APPEARING IN
THE LEGISLATIVE HISTORY OF SEC. 11, THE COURT THOUGHT THEY GAVE BASIS
FOR A STRONG ANALOGY BETWEEN THE FUNCTIONS OF DISTRICT COURTS UNDER
SEC. 11(E) AND THOSE OF SUCH COURTS "WHEN CALLED UPON UNDER THE SHERMAN
AND HEPBURN ACTS TO EFFECT COMPULSORY CORPORATE READJUSTMENTS REQUIRED
BY THE PUBLIC POLICY EXPRESSED IN THOSE ACTS."  FN19  THE COURT'S
OPINION THEN ADDED:  "WE THINK THAT IT WILL NOT BE CONTENDED THAT A
DISTRICT COURT  ...  ADJUDGING A CONTROVERSY ARISING UNDER THE SHERMAN
ACT WOULD FUNCTION OTHER THAN AS IN AN ORIGINAL EQUITY PROCEEDING,
EXERCISING ALL THE POWERS AND DUTIES INHERENT IN A COURT OF EQUITY
UNDER SUCH CIRCUMSTANCES."  168 F.2D AT 729.  ACCORDINGLY, THE COURT
UPHELD THE DISTRICT COURT'S VIEW THAT IT HAD POWER, AS A COURT OF
EQUITY, TO WITHHOLD APPROVAL AND ENFORCEMENT OF THE PLAN UPON ITS OWN
INDEPENDENT JUDGMENT OF THE "COLLOQUIAL EQUITIES," NOTWITHSTANDING THE
COMMISSION'S CONTRARY JUDGMENT AND, APPARENTLY, EVEN THOUGH THE
COMMISSION'S JUDGMENT INVOLVED NO CLEAR ERROR OF LAW OR ABUSE OF
DISCRETION.    THE COURT OF APPEALS, HOWEVER, VIEWED SOMEWHAT
DIFFERENTLY THE LIMITATIONS PLACED BY THE ACT UPON THE POWER OF
REVIEW.  "THE PROCEEDINGS BEFORE THE EQUITY REORGANIZATION COURT ARE
NOT STRICTLY DE NOVO SINCE THE DISTRICT COURT CAN ONLY APPROVE A PLAN
WHEN IT HAS BEEN APPROVED BY THE COMMISSION.  SEE APPLICATION OF
SECURITIES AND EXCHANGE COMMISSION, D.C. DEL., 50 F.SUPP.  965, 966." 
168 F.2D AT 732.  THE DISTRICT COURT, IT WAS SAID, COULD RECEIVE
EVIDENCE ALIUNDE THE COMMISSION'S RECORD, COULD DECIDE ON THAT EVIDENCE
AND THE COMMISSION'S RECORD THAT THE PLAN IS UNFAIR AND INEQUITABLE,
AND REMAND THE CAUSE TO THE COMMISSION FOR FURTHER CONSIDERATION, OR
COULD REMAND WITHOUT TAKING NEW EVIDENCE.  THE DISTRICT COURT THEREFORE
WAS WRONG IN ORDERING ENFORCEMENT OF THE PLAN AS MODIFIED BY ITSELF. 
IT COULD ONLY APPROVE AND ENFORCE OR REFUSE APPROVAL AND REMAND.  ONLY
A PLAN APPROVED BY THE COMMISSION AND BY THE COURT COULD BE ENFORCED. 

THESE VIEWS WERE THOUGHT SUPPORTED BY THE HISTORY OF THE LAW OF
REORGANIZATION, INCLUDING EQUITY RECEIVERSHIPS, REORGANIZATION OF
INSOLVENT COMPANIES UNDER FORMER SEC. 77 B OF THE BANKRUPTCY ACT, 11
U.S.C. SEC. 207 ET SEQ., AND CHAPTER X REORGANIZATIONS (ID. AT SEC. 501
ET SEQ.), ALTHOUGH THE COURT DID NOT "MEAN TO IMPLY THAT CONGRESS
INTENDED TO GRANT A SECTION 11(E) COURT THE SAME FULL AND UNTRAMMELED
SCOPE THAT A COURT OF BANKRUPTCY WOULD HAVE IN A CHAPTER X
PROCEEDING."  168 F.2D AT 735-736.  NEVERTHELESS, "ANY QUESTION WHICH
GOES TO THE ISSUE OF WHAT IS FAIR AND EQUITABLE MAY BE RAISED AND MUST
BE PASSED UPON."  ID. AT 735.  MOREOVER, SINCE "THE CRITICAL PHRASE
EMPLOYED ALIKE BY COURTS OF EQUITY AND BY CONGRESS IN FRAMING THE TEST
UNDER WHICH A PLAN SHALL BE APPROVED OR DISAPPROVED, HAS ALWAYS
EMBRACED THE PHRASE 'FAIR AND EQUITABLE' OR ITS SUBSTANTIAL
EQUIVALENT," THE COURT THOUGHT THAT THE POWER AND FUNCTIONS OF THE
DISTRICT COURTS IN REVIEW OF PLANS SUBMITTED DID NOT "VARY MUCH FROM
STATUTE TO STATUTE AND FROM CASE TO CASE," ID. AT 734, I.E., WHETHER
THE PLAN WAS TO BE CONSUMMATED BY WAY OF EQUITY RECEIVERSHIP, BY ACTION
UNDER FORMER SEC. 77 B, BY SUIT UNDER CHAPTER X, BY A PROCEEDING UNDER
SEC. 77, 11 U.S.C. SEC. 205, OR BY PETITION TO A DISTRICT COURT UNDER
SEC. 11(E). 

THE VARIANT VIEWS HELD RESPECTIVELY BY THE COMMISSION, THE DISTRICT
COURT, THE COURT OF APPEALS, AND THE PARTIES TO THE PROCEEDING
DEMONSTRATE THE COMPLEXITY OF THE PROBLEM.  EACH VIEW HAS A RATIONAL
BASIS OF SUPPORT, BUT NONE IS WITHOUT ITS DIFFICULTIES, EITHER IN
STATUTORY TERMS, HISTORY AND INTENT OR IN PRACTICAL CONSEQUENCES. 

THE LEGISLATIVE HISTORY OF SEC. 11(E) THROWS LITTLE LIGHT ON THE
PROBLEM.  THERE WAS, SURPRISINGLY, ONLY CASUAL, INDEED TANGENTAL,
DISCUSSION OF IT.  THE ANALOGY TO PROCEEDINGS UNDER SEC. 77 OF THE
BANKRUPTCY ACT, DRAWN BY THE COMMISSION AND REFERRED TO BY THE COURT OF
APPEALS, RESTS CHIEFLY UPON THE STATEMENT OF SENATOR WHEELER, CO
SPONSOR OF THE BILL, MADE DURING A COLLOQUY IN DEBATE ON THE SENATE
FLOOR AND SET FORTH IN THE MARGIN.  FN20  BUT THAT STATEMENT DID NOT
OCCUR IN ANY DETAILED CONSIDERATION OF THE SCOPE AND INCIDENCE OF
JUDICIAL REVIEW.  IT AROSE ONLY AS IT WERE INCIDENTALLY IN THE COURSE
OF EXTENDED DISCUSSION WHICH CENTERED ABOUT THE RECEIVERSHIP PROVISIONS
OF SEC. 11(E) AS IT STOOD AT THE TIME OF THE DEBATE. 

MOREOVER, THE DISCUSSION DID NOT AND COULD NOT TAKE ACCOUNT OF THE
FACT THAT, UNDER OUR SUBSEQUENT DECISIONS IN THE WESTERN PACIFIC AND
DENVER & RIO GRANDE CASES, SUPRA, MATTERS OF VALUATION IN SEC. 77
REORGANIZATIONS HAVE BEEN HELD TO BE EXCLUSIVELY FOR THE INTERSTATE
COMMERCE COMMISSION, NOT FOR THE DISTRICT COURTS, EXCEPT AS STATED
ABOVE.  ECKER V. WESTERN PACIFIC R. CORP., SUPRA; R.F.C. V. DENVER &
RIO GRANDE W.R. CO., SUPRA.  SIGNIFICANTLY, THIS FACT SEEMS NOT TO HAVE
BEEN TAKEN INTO ACCOUNT WHEN THE COURT OF APPEALS INCLUDED THE SEC. 77
PROCEEDINGS AMONG ITS GENERAL GROUPING OF REORGANIZATION PROCEDURES FOR
ANALOGICAL PURPOSES.  AND IN THIS RESPECT THE COMMISSION MAKES CLEAR
ITS DIFFERENCE FROM THE COURT OF APPEALS, POINTING OUT THAT UNDER THE
WESTERN PACIFIC AND RIO GRANDE DECISIONS THE COMMISSION DECIDES
QUESTIONS OF VALUATION, SUBJECT ONLY TO THE NARROW SCOPE OF REVIEW
THERE ALLOWED. 

BUT, AS IF TO COMPLICATE THE MATTER FURTHER, THE COMMISSION'S ANALOGY
IS SOMEWHAT WEAKENED BY THE FACT THAT THE WESTERN PACIFIC AND RIO
GRANDE RULINGS CONCERNING REVIEW OF VALUATION MATTERS RESTED UPON
LANGUAGE IN SEC. 77 NOT REPEATED IN SEC. 11(E) OF THE ACT PRESENTLY IN
QUESTION.  THAT LANGUAGE, APPEARING IN SUBSECTION (E) OF SEC. 77,
PROVIDED:  "IF IT SHALL BE NECESSARY TO DETERMINE THE VALUE OF ANY
PROPERTY FOR ANY PURPOSE UNDER THIS SECTION, THE COMMISSION SHALL
DETERMINE SUCH VALUE AND CERTIFY THE SAME TO THE COURT IN ITS REPORT ON
THE PLAN."  THIS, THE COURT HELD, LEFT TO THE INTERSTATE COMMERCE
COMMISSION THE DETERMINATION OF VALUE "WITHOUT THE NECESSITY OF A
REEXAMINATION BY THE COURT, WHEN THAT DETERMINATION IS REACHED WITH
MATERIAL EVIDENCE TO SUPPORT THE CONCLUSION AND IN ACCORDANCE WITH
LEGAL STANDARDS."  318 U.S. AT 472-473. 

ON THE OTHER HAND, THE OPPOSING ANALOGY DRAWN BY THE COURT OF APPEALS
FROM THE HISTORY OF THE LAW OF REORGANIZATION IN GENERAL IS HIGHLY
INDISCRIMINATE.  INSOFAR AS IT INCLUDES EQUITY RECEIVERSHIPS, E.G.,
PURSUANT TO SHERMAN AND HEPBURN ACT READJUSTMENTS, IT IGNORES THE
IMPORTANT FACT THAT IN SUCH PROCEEDINGS THERE IS NO EFFORT TO BRIGADE
THE ADMINISTRATIVE AND JUDICIAL PROCESSES.  NOR DOES IT TAKE ACCOUNT OF
THE SUBSTANTIAL DIFFERENCES "FROM STATUTE TO STATUTE," E.G., BETWEEN
PROCEEDINGS UNDER SEC. 77 OF THE BANKRUPTCY ACT AS CONSTRUED IN THE
WESTERN PACIFIC AND RIO GRANDE CASES, ON THE ONE HAND, AND CHAPTER X
REORGANIZATIONS, ON THE OTHER.  MOREOVER, AND PERHAPS MOST IMPORTANT,
IT SUBSTITUTES ANALOGY DRAWN FROM OTHER STATUTES AND JUDICIAL
PROCEEDINGS, TOGETHER WITH A READING OF SEC. 11(E) IN COMPARATIVE
ISOLATION FROM THE OTHER PROVISIONS OF THE ACT, FOR A CONSIDERATION OF
THAT SECTION IN THE CONTEXT OF THE ACT, AS A WHOLE AND PARTICULARLY
WITH REFERENCE TO ANY EFFORT TOWARD HARMONIZING THE SECTION WITH SEC.
24(A) AND BRINGING THE TWO AS CLOSE TOGETHER AS POSSIBLE IN PRACTICAL
OPERATION. 

OF COURSE CONGRESS COULD PROVIDE TWO ENTIRELY DISSIMILAR PROCEDURES
FOR REVIEW, DEPENDING ON WHETHER APPEAL WERE TAKEN BY AN AGGRIEVED
PERSON TO A COURT OF APPEALS OR THE PLAN WERE SUBMITTED BY THE
COMMISSION AT THE COMPANY'S REQUEST TO A DISTRICT COURT.  BUT IT IS
HARD TO IMAGINE ANY GOOD REASON THAT WOULD MOVE CONGRESS TO DO THIS
DELIBERATELY.  THE PRACTICAL EFFECT OF ASSUMING THAT CONGRESS INTENDED
THE REVIEW UNDER SEC. 11(E) TO BE CONDUCTED WHOLLY WITHOUT REFERENCE TO
OR CONSIDERATION OF THE LIMITATIONS EXPRESSLY PROVIDED FOR THE REVIEW
UNDER SEC. 24(A) CERTAINLY WOULD PRODUCE INCONGRUOUS RESULTS WHICH
WOULD BE VERY DIFFICULT TO IMPUTE TO CONGRESS IN THE ABSENCE OF
UNMISTAKABLY EXPLICIT COMMAND. 

FOR ONE THING THE CONSEQUENCE WOULD BE, IN EFFECT, TO CREATE TO A
VERY LARGE POSSIBLE EXTENT DIFFERING STANDARDS FOR ADMINISTRATION AND
APPLICATION OF THE ACT, DEPENDING UPON WHICH MODE OF REVIEW WERE
INVOKED.  IN THE ONE INSTANCE, APART FROM REVIEWABLE LEGAL QUESTIONS,
THE COMMISSION'S EXPERT JUDGMENT ON THE VERY TECHNICAL AND COMPLICATED
MATTERS TO DEAL WITH WHICH THE COMMISSION WAS ESTABLISHED, WOULD BE
CONTROLLING.  IN THE OTHER INSTANCE, IT WOULD HAVE TO GIVE WAY TO THE
CONTRARY VIEW OF WHATEVER DISTRICT COURT THE PLAN MIGHT BE SUBMITTED
TO. 

CONCEIVABLY THE SAME PLAN MIGHT BE BROUGHT UNDER REVIEW BY BOTH
ROUTES.  INDEED, IN ONE INSTANCE THE DISTRICT COURT FOR DELAWARE, TO
WHICH THE PLAN HERE WAS SUBMITTED, HELD THAT ITS DETERMINATION OF THE
ISSUES IN A SEC. 11(E) PROCEEDING WAS PRECLUDED BY A PRIOR AFFIRMATION
OF THE SAME ORDER BY A COURT OF APPEALS IN A SEC. 24(A) REVIEW
PROCEEDING.  SEE L.J. MARQUIS & CO. V. SECURITIES & EXCHANGE
COMMISSION, 134 F.2D 822, AND APPLICATION OF SECURITIES AND EXCHANGE
COMMISSION, 50 F.SUPP.  965.  PRESUMABLY, UNDER THE VIEWS NOW TAKEN BY
THE DISTRICT COURT AND THE COURT OF APPEALS, IF DISTRICT COURT REVIEW
UNDER SEC. 11(E) COULD BE HAD FIRST, THAT DETERMINATION LIKEWISE WOULD
BE CONCLUSIVE AS AGAINST CONTRARY VIEWS HELD BY THE COMMISSION AND A
COURT OF APPEALS IN A LATER SEC. 24(A) PROCEEDING. 

MOREOVER, APART FROM LEGAL QUESTIONS, THE CONTROLLING STANDARD WOULD
BE FIXED BY THE DISCRETION OF THE DISTRICT COURT TO WHICH THE PLAN
MIGHT BE SUBMITTED.  AND SINCE SUCH A COURT MIGHT BE ANY OF THE MANY
DISTRICT COURTS AVAILABLE FOR THAT PURPOSE, THERE HARDLY COULD BE THE
UNIFORM APPLICATION OF THE "FAIR AND EQUITABLE" STANDARD WHICH CONGRESS
UNDOUBTEDLY HAD IN MIND WHEN IT ENTRUSTED ITS PRIMARY ADMINISTRATION TO
THE COMMISSION'S EXPERT JUDGMENT AND EXPERIENCE, AND WHEN IT DRAFTED
THE DETAILED PROVISIONS OF SEC. 24(A) FOR REVIEW.  TO THE EXTENT AT
LEAST THAT THE STANDARD CONTEMPLATED AN AREA OF EXPERT DISCRETION, ITS
CONTENT UNDER THE VIEW TAKEN BY THE DISTRICT COURT AND THE COURT OF
APPEALS COULD NOT BE UNIFORM, BUT WOULD VARY FROM COURT TO COURT AS THE
JUDICIAL DISCRETION MIGHT DIFFER FROM THAT OF THE COMMISSION OR OTHER
COURTS. 

IN CONTRAST WITH THE SPECIFIC LIMITATIONS OF SEC. 24(A), THE VERY
BREVITY AND LACK OF SPECIFICITY OF SEC. 11(E), TOGETHER WITH THE
PAUCITY AND TENTATIVE CHARACTER OF THE LEGISLATIVE HISTORY, CONCERNING
THE SCOPE OF REVIEW UNDER THE LATTER SECTION, GIVE CAUTION AGAINST
READING ITS TERMS AS IMPORTING A BREADTH OF REVIEW HIGHLY INCONSISTENT
WITH THE LIMITATIONS EXPRESSLY PROVIDED BY SEC. 24(A).  BOTH SECTIONS
ARE PARTS OF THE SAME STATUTE, DESIGNED TO GIVE EFFECT TO THE SAME
LEGISLATIVE POLICIES AND TO SECURE UNIFORM APPLICATION OF THE STATUTORY
STANDARDS.  THAT STATUTORY CONTEXT AND THOSE OBJECTS SHOULD OUTWEIGH
ANY GENERAL CONSIDERATIONS OR ANALOGIES DRAWN INDISCRIMINATELY FROM
DIFFERING STATUTES OR FROM THE HISTORY OF REORGANIZATIONS IN GENERAL,
LEADING AS THESE DO TO INCONGRUITIES AND DIVERSITIES IN PRACTICAL
APPLICATION OF THE ACT'S TERMS AND POLICIES. 

INDEED WE THINK IT IS FAIR TO CONCLUDE THAT THE PRIMARY OBJECT OF
SEC. 11(E) WAS NOT TO PROVIDE A HIGHLY DIFFERENT SCOPE OF JUDICIAL
REVIEW FROM THAT AFFORDED BY SEC. 24(A), BUT WAS TO ENABLE THE
COMMISSION, BY GIVING IT THE AUTHORITY TO INVOKE THE COURT'S POWER, TO
MOBILIZE THE JUDICIAL AUTHORITY IN CARRYING OUT THE POLICIES OF THE
ACT.  TO DO THIS THE COURT "AS A COURT OF EQUITY" WAS AUTHORIZED TO
"TAKE EXCLUSIVE JURISDICTION AND POSSESSION OF" THE COMPANY OR
COMPANIES AND THEIR ASSETS AND TO APPOINT A TRUSTEE TO HOLD AND
ADMINISTER THE ASSETS UNDER THE COURT'S DIRECTION. 

TRUE, THE COURT WAS TO APPROVE THE PLAN AS FAIR AND EQUITABLE; BUT
NOTHING WAS SAID EXPRESSLY AS TO THE SCOPE OF REVIEW OR THE RESOLUTION
OF DIFFERENCES IN DISCRETIONARY MATTERS BETWEEN THE COMMISSION AND THE
COURT.  THE COURT'S CHARACTERIZATION AS "A COURT OF EQUITY" WAS
APPROPRIATE IN RELATION TO THE POWERS OF ENFORCEMENT CONFERRED.  WE DO
NOT THINK IT WAS INTENDED TO DEFINE WITH ACCURACY THE SCOPE OF REVIEW
TO BE EXERCISED OVER MATTERS COMMITTED TO THE COMMISSION'S DISCRETION
AND EXPERT JUDGMENT, NOT INVOLVING QUESTIONS OF LAW, OR TO SET UP A
DIFFERENT AND CONFLICTING STANDARD IN THOSE MATTERS FROM THE ONE TO BE
APPLIED IN PROCEEDINGS UNDER SEC. 24(A).  THIS VIEW IS NOT INCONSISTENT
WITH SENATOR WHEELER'S COMPARISON WITH SEC. 77 PROCEEDINGS UNDER THE
BANKRUPTCY ACT, WHICH PERHAPS, DESPITE ITS RATHER CASUAL INTERJECTION,
MOST NEARLY APPROACHES DISCLOSURE OF THE LEGISLATIVE INTENT AS TO THE
PRESENT PROBLEM. 

IT MAY BE ADDED THAT, IN GENERAL, THE COURTS WHICH HAVE DEALT WITH
THE PROBLEM APPEAR TO HAVE TAKEN THE VIEW WE TAKE,  FN21  AS AGAINST
THE ONE PREVAILING IN THE DISTRICT COURT AND THE COURT OF APPEALS WHICH
REVIEWED THIS CASE,  FN22  ALTHOUGH IN NO CASE HAS THE QUESTION BEEN SO
SHARPLY FOCUSED AS HERE.  WHILE SEC. 11(E), AS WE HAVE NOTED, DOES NOT
CONTAIN LANGUAGE THE EQUIVALENT OF SUBSECTION (E) OF SEC. 77 OF THE
BANKRUPTCY ACT UPON WHICH THIS COURT RESTED ITS RULING CONCERNING
REVIEW OF VALUATIONS IN THE WESTERN PACIFIC CASE, THAT LACK MAY BE
SUPPLIED IN THIS CASE BY THE CORRELATION WE THINK IS REQUIRED BETWEEN
THE TERMS OF SEC. 11(E) AND THOSE OF SEC. 24(A).  ACCORDINGLY WE ARE
UNABLE TO ACCEPT THE CONCLUSION OF THE COURT OF APPEALS AND THE
DISTRICT COURT THAT THE LATTER WAS FREE, IN PASSING UPON THE
COMMISSION'S VALUATIONS, TO DISREGARD ITS JUDGMENT IN THE LARGE AREAS
OF DISCRETION COMMITTED BY THE ACT TO THAT JUDGMENT. 

ADMINISTRATIVE FINALITY IS NOT, OF COURSE, APPLICABLE ONLY TO AGENCY
FINDINGS OF "FACT" IN THE NARROW, LITERAL SENSE.  THE COMMISSION'S
FINDINGS AS TO VALUATION, WHICH ARE BASED UPON JUDGMENT AND PREDICTION,
AS WELL AS UPON "FACTS," LIKE THE VALUATION FINDINGS OF THE INTERSTATE
COMMERCE COMMISSION IN REORGANIZATIONS UNDER SEC. 77 OF THE BANKRUPTCY
ACT, ECKER V. WESTERN PACIFIC R. CORP., SUPRA, ARE NOT SUBJECT TO
REEXAMINATION BY THE COURT UNLESS THEY ARE NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE OR WERE NOT ARRIVED AT "IN ACCORDANCE WITH LEGAL STANDARDS." 

ADMINISTRATIVE DETERMINATIONS OF POLICY, OFTEN BASED UPON UNDISPUTED
BASIC FACTS, IN AN AREA IN WHICH CONGRESS HAS GIVEN THE AGENCY
AUTHORITY TO DEVELOP RULES BASED UPON ITS EXPERT KNOWLEDGE AND
EXPERIENCE, ARE EXEMPLIFIED BY SECURITIES AND EXCHANGE COMMISSION V.
CHENERY CORP., SUPRA, IN WHICH THE COMMISSION DETERMINED THAT PREFERRED
STOCK PURCHASED BY MANAGEMENT IN THE OVER-THE-COUNTER MARKET DURING THE
FORMULATION OF A HOLDING COMPANY REORGANIZATION PLAN COULD NOT BE
EXCHANGED FOR COMMON STOCK PARTICIPATION IN THE REORGANIZED COMPANY, AS
COULD OTHER PREFERRED STOCK; INSTEAD MANAGEMENT WAS TO BE PAID COST
PLUS INTEREST FOR THE PREFERRED STOCK SO PURCHASED.    THE COMMISSION'S
DETERMINATION WAS MADE IN THE EXERCISE OF ITS DUTY TO DETERMINE THAT A
PLAN IS "FAIR AND EQUITABLE" WITHIN THE MEANING OF SEC. 11(E) AND THAT
IT IS NOT "DETRIMENTAL TO THE PUBLIC INTEREST OR THE INTEREST OF
INVESTORS OR CONSUMERS" WITHIN THE MEANING OF SEC. 7(D)(6) AND SEC.
7(E).  ON CERTIORARI TO THE COURT OF APPEALS WHICH HAD REVIEWED THE
COMMISSION'S ORDER UNDER SEC. 24(A) OF THE ACT, WE HELD THAT THE
COMMISSION'S ACTION WAS "AN ALLOWABLE JUDGMENT WHICH WE CANNOT
DISTURB."  332 U.S. 194, AT 209.  THIS HOLDING WAS NOT BASED UPON THE
FACT THAT THE COMMISSION'S ORDER WAS REVIEWED UNDER SEC. 24(A) OF THE
ACT RATHER THAN UNDER SEC. 11(E), BUT UPON THE GROUND THAT THE
COMMISSION'S DETERMINATION WAS MADE IN AN AREA IN WHICH CONGRESS HAD
DELEGATED POLICY DECISIONS OF THIS SORT TO THE COMMISSION, AND
THEREFORE THAT THE AGENCY DETERMINATION WAS "CONSISTENT WITH THE
AUTHORITY GRANTED BY CONGRESS."  ID. AT 207.  WE THINK THIS VIEW IS
APPLICABLE WHEN REVIEW IS HAD UNDER SEC. 11(E) AS MUCH AS WHEN IT
ARISES UNDER SEC. 24(A). 

EVEN WITH THE LATITUDE ALLOWED BY OUR PRESENT RULING FOR PLAY OF THE
COMMISSION'S JUDGMENT, IT REMAINS TO CONSIDER WHETHER IN THIS CASE THE
COMMISSION HAS COMPLIED WITH THE STATUTORY STANDARDS IN ITS
DETERMINATION THAT THE PLAN AS AMENDED BY IT IS FAIR AND EQUITABLE. 
THE COMMON SHAREHOLDERS DENY THIS.  AND, CONTRARY TO THE PREFERRED
SHAREHOLDERS' POSITION, THE COMMISSION HAS ARGUED, ALTERNATIVELY TO ITS
CONTENTIONS CONCERNING THE SCOPE OF REVIEW, THAT APPLICATION OF THE
"FAIR AND EQUITABLE" STANDARD OF SEC. 11(E) IN THIS CASE PRESENTS
QUESTIONS OF LAW WHICH HAVE BEEN DECIDED ERRONEOUSLY BY THE DISTRICT
COURT AND THE COURT OF APPEALS. 

TAKEN MOST BROADLY, THIS ARGUMENT OF THE COMMISSION SEEMS TO BE THAT
THE ENTIRE MATTER OF APPLYING THE "FAIR AND EQUITABLE" STANDARD
INVOLVES ONLY LEGAL ISSUES, WITH THE RESULT THAT EACH SUBSIDIARY
QUESTION RAISED AND DETERMINED IN THAT PROCESS BECOMES INDEPENDENTLY
REVIEWABLE AND JUDICIALLY DETERMINABLE.  IF SO, OF COURSE, THE QUESTION
OF THE PROPER SCOPE OF REVIEW WOULD BECOME IRRELEVANT, AT ANY RATE FOR
THE PURPOSES OF THIS CASE, SINCE IT WAS DETERMINED SOLELY ON THE RECORD
MADE BEFORE THE COMMISSION. 

BUT THE COMMISSION DOES NOT STOP WITH THIS BROAD ARGUMENT.  IT GOES
ON TO CONSIDER PARTICULAR QUESTIONS WHICH AROSE IN THE VALUATION
PROCESS AND TO URGE THAT THEY PRESENTED QUESTIONS OF LAW WHICH THE
REVIEWING COURTS ERRONEOUSLY DETERMINED.  AMONG THESE ARE WHETHER THE
COURT'S DISPOSITIONS VIOLATED THE "ABSOLUTE PRIORITY" STANDARD
ATTRIBUTED TO THE OTIS CASE; WHETHER THEIR REQUIREMENT THAT THE
COMMISSION VALUE THE COMMON STOCK IN THE SAME MANNER AS IT DID THE
PREFERRED, RATHER THAN SIMPLY AWARDING TO THE COMMON SHAREHOLDERS ALL
OF ENGINEERS' ASSETS REMAINING AFTER GIVING THE PREFERRED THE EQUITABLE
EQUIVALENT OF THEIR SHARES AS DETERMINED, VIOLATED THE STATUTORY
STANDARD; WHETHER THE COURTS RIGHTLY REQUIRED THE COMMISSION TO TAKE
INTO ACCOUNT ALLEGED LOSSES INCURRED BY ENGINEERS IN EARLIER
DISPOSITIONS OF COMPANY PROPERTIES MADE TO COMPLY WITH THE ACT; AND
WHETHER THE COMMISSION IMPROPERLY FAILED TO TAKE INTO ACCOUNT OTHER
MATTERS OF "COLLOQUIAL EQUITY" THE COURTS CONSIDERED NOT ONLY PROPER
BUT ESSENTIAL TO A FAIR AND EQUITABLE DETERMINATION. 

WE THINK AT LEAST SOME OF THESE MATTERS DO RAISE LEGAL ISSUES,
PARTICULARLY IN THE LIGHT OF THE OTIS DECISION, WHICH SHOULD NOW BE
CONSIDERED AND RESOLVED.  ACCORDINGLY WE TURN TO THEM FOR THAT
PURPOSE. 

                                 II. 

CHALLENGES TO THE INVESTMENT VALUE THEORY OF VALUATION.  THE
PRINCIPAL EFFECT OF THE OTIS DECISION WAS TO RULE THAT IN
SIMPLIFICATION PROCEEDINGS PURSUANT TO SECS. 11(B)(2) AND (E) OF THE
ACT THE INVOLUNTARY CHARTER LIQUIDATION PREFERENCE DOES NOT OF ITSELF
DETERMINE THE AMOUNTS SHAREHOLDERS ARE TO RECEIVE, BUT INSTEAD THE
AMOUNTS ALLOCATED SHOULD BE THE EQUITABLE EQUIVALENT OF THE SECURITIES'
INVESTMENT VALUE ON A GOING-CONCERN BASIS. 

THE COMMON SHAREHOLDERS SEEK TO AVOID THE EFFECT OF THIS RULING BY
VARIOUS ARGUMENTS PRESENTLY TO BE STATED, WHICH SHOULD BE CONSIDERED
AND DETERMINED IN THE LIGHT OF THE OTIS DECISION AND THE COMMISSION'S
PRACTICE CONSISTENT WITH THAT DECISION, A SUMMARY OF WHICH PRACTICE IS
SET FORTH IN THE APPENDIX TO THIS OPINION. 

IN THE OTIS CASE THE PLAN CALLED FOR THE DISSOLUTION OF THE UNITED
LIGHT AND POWER COMPANY, THE TOP HOLDING COMPANY IN THE SYSTEM, IN
OBEDIENCE TO A COMMISSION ORDER REQUIRING THE ELIMINATION OF THAT
COMPANY, WHOSE EXISTENCE VIOLATED THE "GREAT-GRANDFATHER CLAUSE" OF
SEC. 11(B)(2).  SINCE BOTH COMMON AND PREFERRED STOCKHOLDERS WERE TO
RECEIVE, IN EXCHANGE FOR THEIR STOCK IN UNITED POWER, STOCK IN ITS
SUBSIDIARY, THE UNITED LIGHT AND RAILWAYS COMPANY, WHICH WAS ITSELF A
HOLDING COMPANY, THE EFFECT OF THE DISSOLUTION WAS TO ELIMINATE THE TOP
HOLDING COMPANY IN A MULTI-TIERED HOLDING COMPANY SYSTEM, LEAVING BOTH
CLASSES OF SECURITY HOLDERS WITH AN INVESTMENT IN A CONTINUING HOLDING
COMPANY ENTERPRISE. 

THE ASSETS OF UNITED POWER WERE INSUFFICIENT TO SATISFY THE CLAIMS OF
THE COMPANY'S PREFERRED STOCKHOLDERS, IF THE CHARTER LIQUIDATION
PREFERENCE OF THE PREFERRED WAS APPLICABLE.  THE COMMISSION FOUND
HOWEVER THAT "IF ALL THE ASSUMED EARNINGS MATERIALIZED AND WERE APPLIED
TO LIQUIDATING THE PREFERRED CURRENT AND DEFERRED DIVIDENDS, IN
APPROXIMATELY FIFTEEN YEARS THE ARREARAGES WOULD BE PAID AND THE COMMON
WOULD BE IN A POSITION TO RECEIVE DIVIDENDS," 323 U.S. AT 632, AND THAT
ONLY BY FORCED LIQUIDATION COULD THE COMMON BE DEPRIVED OF ALL RIGHT TO
FUTURE EARNINGS AND THE PREFERRED BE GIVEN THE RIGHT TO PROSPECTIVE
EARNINGS IN EXCESS OF THE DIVIDENDS GUARANTEED BY CHARTER.  THE
COMMISSION CONCLUDED THAT "IN ITS 'OVER-ALL JUDGMENT' POWER'S COMMON
HAD A LEGITIMATE INVESTMENT VALUE OF A PROPORTION OF 5.48 PER CENT OF
POWER'S ASSETS TO THE PREFERRED'S VALUE OF 94.52 PER CENT."  IBID.
RELYING ON THE LEGISLATIVE HISTORY OF THE ACT, 323 U.S. AT 636-637, AND
UPON THE FACT THAT THE CHARTER PROVISION WAS NOT DRAFTED IN
CONTEMPLATION OF THE LEGISLATIVE POLICY EMBODIED IN THE ACT, ID. AT 637
638, WE HELD THAT THE COMMISSION HAD NOT ERRED IN ITS METHOD OF
VALUATION.  BY THIS RULING WE REJECTED THE EASIER SOLUTION OF
PERMITTING LIQUIDATIONS OR REORGANIZATIONS COMPELLED BY THE ACT TO
MATURE CHARTER RIGHTS AND THUS TO SHIFT INVESTMENT VALUES FROM ONE
CLASS OF SECURITY HOLDERS TO ANOTHER. 

IN SO RULING, THIS COURT DID NOT ABANDON THE "ABSOLUTE PRIORITY"
STANDARD INSOFAR AS EMBODIED IN THE REQUIREMENT THAT THE PLAN BE "FAIR
AND EQUITABLE."  FN23  THAT STANDARD REQUIRES THAT EACH SECURITY HOLDER
BE GIVEN THE EQUITABLE EQUIVALENT OF THE RIGHTS SURRENDERED, BUT THE
EQUITABLE EQUIVALENT IS NOT INVARIABLY THE CHARTER LIQUIDATION
PREFERENCE, AS IT IS IN THE CASE OF LIQUIDATIONS OR REORGANIZATIONS
BROUGHT ABOUT THROUGH THE ACTION OF CREDITORS OR STOCKHOLDERS.  THE
PRINCIPLE OF THE OTIS CASE IS THAT THE MEASURE OF EQUITABLE EQUIVALENCE
FOR PURPOSES OF SIMPLIFICATION PROCEEDINGS COMPELLED BY THE HOLDING
COMPANY ACT IS THE VALUE OF THE SECURITIES "ON THE BASIS OF A GOING
BUSINESS AND NOT AS THOUGH A LIQUIDATION WERE TAKING PLACE."  323 U.S.
AT 633. 

THE DECISIONS OF THE COMMISSION, FROM THE COMMENCEMENT OF ITS
ENFORCEMENT OF THE PUBLIC UTILITY HOLDING COMPANY ACT TO THE PRESENT
TIME, SHOW A CONSISTENT AND DEVELOPING APPLICATION OF THE INVESTMENT
VALUE RULE APPROVED IN THE OTIS CASE.  FN24  AT LEAST SINCE ITS
DECISION IN THAT CASE CHARTER PROVISIONS HAVE BEEN HELD INVARIABLY NOT
TO BE DETERMINATIVE.  FEDERAL COURTS WHICH HAVE HAD OCCASION TO SPEAK
IN THIS CONNECTION HAVE RECOGNIZED THAT CHARTER LIQUIDATION PROVISIONS
ARE NOT THE MEASURES OF STOCKHOLDERS' RIGHTS IN LIQUIDATIONS AND
REORGANIZATIONS COMPELLED BY THE ACT.  FN25 

SEEKING TO DISTINGUISH THE OTIS CASE, THE REPRESENTATIVES OF THE
COMMON STOCKHOLDERS CONTEND THAT HERE THE CHARTER LIQUIDATION
PROVISIONS ARE APPLICABLE, FROM WHICH OF COURSE IT WOULD FOLLOW THAT
THOSE PROVISIONS ARE THE MEASURE OF EQUITABLE EQUIVALENCE. 

IT IS URGED FIRST THAT ENGINEERS' CHARTER LIQUIDATION PROVISION IS
PHRASED IN MORE COMPREHENSIVE TERMS THAN WAS THE ONE IN OTIS, AND THAT
THE FRAMERS OF ENGINEERS' CHARTER CONTEMPLATED THE POSSIBILITY OF
GOVERNMENTAL ACTION OF THE KIND REQUIRED BY THE HOLDING COMPANY ACT.  A
COMPARISON OF THE TWO CHARTER PROVISIONS REVEALS NO SIGNIFICANT
DIFFERENCE BETWEEN THEM.  FN26  ENGINEERS' CHARTER WAS DRAFTED SOME
FOUR YEARS EARLIER THAN THE OTIS CHARTER.  EACH CONTRACT WAS MADE AT A
TIME WHEN THE LEGISLATIVE POLICY EMBODIED IN THE HOLDING COMPANY ACT
"WAS NOT FORESEEABLE."  323 U.S. AT 638.  FN27 

A FURTHER ASSERTED DISTINCTION IS THAT THERE IS HERE A "GENUINE
LIQUIDATION," I.E., A TERMINATION OF THE HOLDING COMPANY ENTERPRISE BY
THE LIQUIDATION OF THE LAST HOLDING COMPANY IN THE SYSTEM; WHILE IN THE
OTIS CASE "THE HOLDING COMPANY ENTERPRISE CONTINUED ESSENTIALLY
UNCHANGED, EVEN THOUGH THE PARTICULAR CORPORATION THERE INVOLVED WAS
BEING DISSOLVED PURSUANT TO THE MANDATE OF THE ACT, AS AN INCIDENT TO
THE SIMPLIFICATION OF THE CONTINUING SYSTEM." 

IT WOULD PROBABLY SUFFICE TO OBSERVE THAT THE WORD "LIQUIDATION," AS
USED IN ENGINEERS' CHARTER LIQUIDATION PROVISION, QUITE OBVIOUSLY MEANS
LIQUIDATION OF ENGINEERS, NOT LIQUIDATION OF OTHER CORPORATIONS OR OF
THE HOLDING COMPANY ENTERPRISE OF WHICH ENGINEERS IS A PART.  BUT THERE
ARE MORE FUNDAMENTAL REASONS WHICH REQUIRE THE REJECTION OF THIS
ARGUMENT.  THE LEGISLATIVE HISTORY RELIED UPON IN THE OTIS CASE, 323
U.S. AT 636-637, CONTAINS NO HINT THAT CONGRESS INTENDED TO PRESERVE
INVESTMENT VALUES ONLY WHEN THE POLICY OF THE ACT REQUIRED A REDUCTION
IN THE NUMBER OF HOLDING COMPANIES IN A SYSTEM RATHER THAN THE
ELIMINATION OF THE SYSTEM'S LAST HOLDING COMPANY N28.  AND THE OTIS
OPINION REJECTED THE COMMISSION'S ARGUMENT IN THAT CASE THAT THE RESULT
THERE WAS JUSTIFIED BY THE FACT THAT THE HOLDING COMPANY ENTERPRISE WAS
TO CONTINUE.  WE SAID THAT THE REASON FOR THE INAPPLICABILITY OF
CHARTER PROVISIONS 

"DOES NOT LIE IN THE FACT THAT THE BUSINESS OF POWER CONTINUES IN
ANOTHER FORM.  THAT IS TRUE OF BANKRUPTCY AND EQUITY REORGANIZATION. 
IT LIES IN THE FACT THAT CONGRESS DID NOT INTEND THAT ITS EXERCISE OF
POWER TO SIMPLIFY SHOULD MATURE RIGHTS, CREATED WITHOUT REGARD TO THE
POSSIBILITY OF SIMPLIFICATION OF SYSTEM STRUCTURE, WHICH OTHERWISE
WOULD ONLY ARISE BY VOLUNTARY ACTION OF STOCKHOLDERS OR, INVOLUNTARILY,
THROUGH ACTION OF CREDITORS."  323 U.S. AT 638. 

FAR FROM AIDING THE DISTINCTION URGED BY THE COMMON STOCKHOLDERS,
SCHWABACHER V. UNITED STATES, 334 U.S. 182, SUPPORTS THE CONCLUSION
THAT INVESTMENT VALUES RATHER THAN CHARTER PROVISIONS PROVIDE THE
MEASURE OF THE PREFERRED STOCKHOLDERS' RIGHTS.  IN THAT CASE THE COURT
HELD THAT THE CHARTER LIQUIDATION PROVISION OF A RAILROAD CORPORATION
MERGING WITH ANOTHER RAILROAD UNDER SEC. 5 OF THE INTERSTATE COMMERCE
ACT WAS NOT DETERMINATIVE OF THE AMOUNT TO WHICH HOLDERS OF CUMULATIVE
PREFERRED STOCK WERE ENTITLED, AND THAT "IN APPRAISING A STOCKHOLDER'S
POSITION IN A MERGER AS TO JUSTICE AND REASONABLENESS, IT IS NOT THE
PROMISE THAT A CHARTER MADE TO HIM BUT THE CURRENT WORTH OF THAT
PROMISE THAT GOVERNS, IT IS NOT WHAT HE ONCE PUT INTO A CONSTITUENT
COMPANY BUT WHAT VALUE HE IS CONTRIBUTING TO THE MERGER THAT IS TO BE
MADE GOOD."  334 U.S. AT 199. 

AGAIN THIS RESULT DEPENDED, NOT UPON THE FACT THAT THE MERGER LEFT A
CONTINUING ENTERPRISE, BUT UPON THE FACT THAT CONGRESS, IN ITS EFFORTS
TO ACHIEVE A PARTICULAR ECONOMIC GOAL, WISHED TO AVOID SHIFTING
INVESTMENT VALUES FROM ONE CLASS OF SECURITIES TO ANOTHER BY MATURING
CONTRACT RIGHTS WHICH WOULD NOT OTHERWISE HAVE MATURED.  AS DID THE
OTIS OPINION, WHICH WAS SAID TO CONSTRUE "A FEDERAL STATUTE OF VERY
SIMILAR PURPOSES,"  FN29  THE SCHWABACHER OPINION ASSUMED "THAT
CONGRESS INTENDED TO EXERCISE ITS POWER WITH THE LEAST POSSIBLE HARM TO
CITIZENS."  OTIS & CO. V. SECURITIES AND EXCHANGE COMMISSION, SUPRA AT
638. 

THE FINAL REASON FOR REJECTING THE ASSERTED DISTINCTION BETWEEN
LIQUIDATION OF THE PARTICULAR CORPORATION AND LIQUIDATION OF THE
HOLDING COMPANY ENTERPRISE SERVES ALSO TO ANSWER A FURTHER, RELATED
ARGUMENT MADE BY THE REPRESENTATIVES OF THE COMMON STOCKHOLDERS.  IT IS
SAID THAT PAYMENT OF THE PREFERRED STOCKHOLDERS IN CASH RATHER THAN IN
SECURITIES OF A NEW CORPORATION AND THE CONSEQUENT TERMINATION OF THESE
STOCKHOLDERS' INVESTMENT "MATURES" THE PREFERRED CLAIMS AND MAKES THIS
A "GENUINE LIQUIDATION."  THESE ARGUMENTS, WHICH NECESSARILY IMPLY THAT
THE COMMISSION MAY NOT CHOOSE THE ELIMINATION OF ONE COMPANY IN A
SYSTEM RATHER THAN ANOTHER OR PAYMENT IN CASH RATHER THAN SECURITIES AS
MEANS OF CONFORMING THE ENTERPRISE TO THE REQUIREMENTS OF THE ACT,
WITHOUT VARYING THE STANDARD BY WHICH STOCKHOLDERS ARE TO BE
COMPENSATED, ARE ANSWERED IN THE OTIS OPINION.  WE HELD THERE THAT
SECURITY VALUES SHOULD NOT 

"BE MADE TO DEPEND ON WHETHER THE COMMISSION, IN ENFORCING COMPLIANCE
WITH THE ACT, RESORTS TO DISSOLUTION OF A PARTICULAR COMPANY IN THE
HOLDING COMPANY SYSTEM, OR RESORTS INSTEAD TO THE DEVICES OF MERGER OR
CONSOLIDATION, WHICH WOULD NOT RUN AFOUL OF A CHARTER PROVISION
FORMULATED YEARS BEFORE ADOPTION OF THE ACT IN QUESTION.  THE
COMMISSION IN ITS ENFORCEMENT OF THE POLICIES OF THE ACT SHOULD NOT BE
HAMPERED IN ITS DETERMINATION OF THE PROPER TYPE OF HOLDING COMPANY
STRUCTURE BY CONSIDERATIONS OF AVOIDANCE OF HARSH EFFECTS ON VARIOUS
STOCK INTERESTS WHICH MIGHT RESULT FROM ENFORCEMENT OF CHARTER
PROVISIONS OF DOUBTFUL APPLICABILITY TO THE PROCEDURES UNDERTAKEN." 
323 U.S. AT 637-638.    THE COMMON STOCKHOLDERS ARGUE ALSO THAT, EVEN
IF THE CHARTER LIQUIDATION PROVISION BE DEEMED INAPPLICABLE, THE "FAIR
AND EQUITABLE" STANDARD REQUIRES THE APPLICATION OF THE "DOCTRINE OF
FRUSTRATION."  IT IS SAID THAT FRUSTRATION OF A CONTRACT BY
GOVERNMENTAL EDICT OR ANY OTHER SUPERVENING EVENT NOT CONTEMPLATED BY
THE PARTIES REQUIRES THAT "THE LOSS  ...  LIE WHERE IT FALLS.  NEITHER
PARTY CAN BE COMPELLED TO PAY FOR THE OTHER'S DISAPPOINTED
EXPECTATIONS."  FN30 IN SUCH A CASE, IT IS SAID, "THE FACE AMOUNT OF
THE SECURITY - WHICH THEORETICALLY MIRRORS THE SENIOR SECURITY HOLDER'S
CONTRIBUTION TO THE ENTERPRISE - IS ALL THAT HE IS ENTITLED TO
RECOVER."  AGAIN THE OTIS CASE IS SAID TO BE DISTINGUISHABLE IN THAT
THERE THE PREFERRED STOCKHOLDERS WERE TO RECEIVE A PARTICIPATION IN THE
CONTINUING ENTERPRISE, WHILE HERE THEIR INVESTMENT IS TERMINATED BY
PAYMENT IN CASH.  BUT, AS WE OBSERVED ABOVE, THE COMMISSION IS NOT TO
BE HAMPERED IN ITS ENFORCEMENT OF THE POLICIES OF THE ACT "BY
CONSIDERATIONS OF AVOIDANCE OF HARSH EFFECTS ON VARIOUS STOCK
INTERESTS." 

THE AUTHORITIES RELIED UPON IN SUPPORT OF THE FRUSTRATION ARGUMENT
WOULD NOT COMPEL THE RESULT FOR WHICH THE COMMON STOCKHOLDERS CONTEND,
EVEN IN THE ABSENCE OF THE OTIS DECISION.  CONSIDERABLE RELIANCE IS
PLACED UPON THE UNITED LIGHT & POWER CO., 10 S.E.C. 1215, AND THE
AFFIRMANCE OF THAT DECISION BY THE COURT OF APPEALS FOR THE SECOND
CIRCUIT IN NEW YORK TRUST CO. V. SECURITIES AND EXCHANGE COMMISSION,
131 F.2D 274.  IN THAT CASE THE PLAN, A DIFFERENT FEATURE OF WHICH WAS
REVIEWED IN THE OTIS CASE, PROVIDED FOR PAYMENT TO THE COMPANY'S
DEBENTURE HOLDERS IN CASH.  THE COMMISSION, AFTER DECIDING THAT
VOLUNTARY LIQUIDATION PREFERENCES WERE NOT PAYABLE, AND THAT THE
BONDHOLDERS HAD NO RIGHT TO RECEIVE THE PREMIUM "BY VIRTUE OF ANY OTHER
RECOGNIZED LEGAL OR EQUITABLE PRINCIPLE," HELD THAT THERE WAS NO RIGHT
TO COMPENSATION FOR THE TERMINATION OF THE INVESTMENT, WHICH, LIKE THE
TERMINATION OF THE STOCKHOLDERS' INVESTMENTS, HAD BEEN "BROUGHT ABOUT
BY THE ACT OF A SOVEREIGN POWER - IN THIS CASE A CONGRESSIONAL
MANDATE."  10 S.E.C. AT 1223, 1228.  IN AFFIRMING THE COMMISSION'S
DETERMINATION, THE COURT OF APPEALS HELD THAT "THE CONTRACT IS NO
LONGER BINDING AND FURTHER PERFORMANCE IS EXCUSED.  ...  WHERE, AS
HERE, THE ESSENTIAL EXISTENCE OF ONE OF THE PARTIES TO A CONTRACT HAS
BECOME ILLEGAL AND IMPOSSIBLE BECAUSE CONTRARY TO A NEW CONCEPT OF
PUBLIC POLICY WHICH WAS UNFORESEEABLE WHEN THE CONTRACT WAS MADE."  131
F.2D AT 276.  SINCE THE CORPORATION WAS UNDER NO OBLIGATION TO CALL THE
BONDS, "IT MIGHT WELL LET THE RIGHTS OF THOSE IN INTEREST BE DETERMINED
AS THOUGH THERE HAD BEEN NO CALL OPTION.  THE ORDER UNDER REVIEW WAS,
ACCORDINGLY, FAIR AND REASONABLE TO ALL PARTIES IN INTEREST SINCE IT
PROVIDED FOR THE PAYMENT OF THE BONDS IN A WAY WHICH DISCHARGED IN FULL
THE CONTRACT OBLIGATIONS OF THE DISSOLVED CORPORATION."  IBID. 

EVEN IF IT IS ASSUMED THAT NO DISTINCTION IS TO BE MADE BETWEEN BONDS
AND PREFERRED STOCK,  FN31 NEITHER THE DECISION OF THE COURT OF APPEALS
NOR THAT OF THE COMMISSION IN THE NEW YORK TRUST CASE IS INCONSISTENT
WITH THE LATER OTIS DECISION OR WITH THE POSITION OF THE COMMISSION IN
THIS CASE, INSOFAR AS EACH HOLDS THAT PERFORMANCE OF THE CHARTER
CONTRACT IS EXCUSED.  FN32  ENGINEERS IS NO LONGER REQUIRED BY ITS
CONTRACT EITHER TO CONTINUE THE PAYMENT OF PREFERRED DIVIDENDS BEYOND
THE DISSOLUTION DATE PROVIDED IN THE PLAN OR TO REDEEM THE PREFERRED AT
EITHER VOLUNTARY OR INVOLUNTARY CHARTER LIQUIDATION PRICES. 

MOREOVER THE NEW YORK TRUST CASE NEED NOT BE CONSTRUED TO FIX THE
MEASURE OF THE SENIOR SECURITY HOLDER'S CLAIM AT THE FACE AMOUNT OF HIS
SECURITY.  IN MASSACHUSETTS MUTUAL LIFE INSURANCE CO. V. SECURITIES AND
EXCHANGE COMMISSION, 151 F.2D 424,  FN33  THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT RECOGNIZED THAT THE DOCTRINE OF IMPOSSIBILITY OR
FRUSTRATION APPLIED IN THE NEW YORK TRUST CASE EXCUSED THE CORPORATION
FROM ITS CONTRACTUAL OBLIGATIONS AND AGREED WITH THE COMMISSION THAT IT
WOULD NOT BE FAIR AND EQUITABLE TO PAY REDEMPTION PREMIUMS IN THE
CIRCUMSTANCES OF THAT CASE.  BUT THE COURT OBSERVED THAT "WHETHER, UPON
RETIREMENT OF OUTSTANDING BONDS  ... PAYMENT OF PRINCIPAL, ACCRUED
INTEREST, AND REDEMPTION PREMIUMS IS THE EQUITABLE EQUIVALENT OF THE
BONDHOLDERS' RIGHTS DEPENDS UPON THE FACTS OF EACH PARTICULAR CASE." 
151 F.2D AT 430.  FN34 

THE DOCTRINE OF IMPOSSIBILITY OR FRUSTRATION EXPLAINS THE CONCLUSION
THAT THE CORPORATION IS EXCUSED FROM PERFORMING ITS CONTRACT, BUT IT
DOES NOT PROVIDE A MEASURE OF THE SECURITY HOLDERS' CLAIMS.  FOR THAT
MEASURE, WE MUST LOOK TO THE INTENTION OF CONGRESS, AS WE DID IN THE
OTIS CASE. 

 III. 

APPLICATION OF THE INVESTMENT VALUE THEORY:  THE COMMISSION'S ALLEGED
FAILURE TO TAKE ACCOUNT OF PRIOR DIVESTMENT LOSSES SUSTAINED BY
ENGINEERS; ITS ALLEGED FAILURE TO VALUE THE COMMON STOCK BY THE SAME
METHOD AS WAS USED IN VALUING THE PREFERRED; "COLLOQUIAL EQUITIES."  IT
WAS THE COMMISSION'S DUTY IN PASSING UPON THE FAIRNESS AND EQUITY OF
THE PLAN TO ACCORD EACH SECURITY HOLDER, IN THE ORDER OF HIS PRIORITY,
THE INVESTMENT OR GOING-CONCERN VALUE OF HIS SECURITY.  HERE, AS IN THE
OTIS CASE, THE MANIFEST SOLVENCY OF ENGINEERS "SIMPLIFIES THE PROBLEM
OF STOCKHOLDERS' RIGHTS  ...  THE CREDITORS ARE SATISFIED."  323 U.S.
AT 633-634.  VALUATION ON THE BASIS OF A GOING CONCERN NECESSARILY HAS
PRIMARY RELATIONSHIP TO VALUE AS OF THE TIME THE SHAREHOLDERS'
SURRENDER BECOMES EFFECTIVE, NOT AS OF SOME EARLIER, REMOTE PERIOD OR
ONE LONG AFTERWARD.  MOREOVER, 

"LIKE THE BANKRUPTCY AND REORGANIZATION STATUTES, THE PUBLIC UTILITY
HOLDING COMPANY ACT, IN PROVIDING THAT PLANS FOR SIMPLIFICATION BE
'FAIR AND EQUITABLE,' INCORPORATES THE PRINCIPLE OF FULL PRIORITY IN
THE TREATMENT TO BE ACCORDED VARIOUS CLASSES OF SECURITY INTERESTS. 
THIS RIGHT TO PRIORITY IN ASSETS WHICH EXISTS BETWEEN CREDITORS AND
STOCKHOLDERS, EXISTS ALSO BETWEEN VARIOUS CLASSES OF STOCKHOLDERS. 
WHEN BY CONTRACT AS EVIDENCED BY CHARTER PROVISIONS ONE CLASS OF
STOCKHOLDERS IS SUPERIOR TO ANOTHER IN ITS CLAIM AGAINST EARNINGS OR
ASSETS, THAT SUPERIOR POSITION MUST BE RECOGNIZED BY COURTS OR AGENCIES
WHICH DEAL WITH THE EARNINGS OR ASSETS OF SUCH A COMPANY.  FAIRNESS AND
EQUITY REQUIRE THIS CONCLUSION."  FN35 

THESE ARE THE GOVERNING PRINCIPLES TO BE APPLIED IN CONSIDERATION OF
THE DIFFERENCES BETWEEN THE COMMISSION AND THE REVIEWING COURTS
CONCERNING THE MATTERS LISTED IN THE HEADING OF THIS PARAGRAPH.  IT IS
IMPORTANT TO NOTE THAT THE DOCTRINE OF ALLOWING EQUITABLE EQUIVALENTS
OF PRESENT GOING-CONCERN VALUE TO REPLACE STATED CHARTER LIQUIDATION
VALUE AS THE MEASURE OF SECURITY SATISFACTION DID NOT AND WAS NOT
INTENDED TO DESTROY CHARTER OR CONTRACT RIGHT TO PRIORITY OF
SATISFACTION. 

A. THE INVESTMENT VALUE OR GOING-CONCERN VALUE THEORY RESTS UPON THE
PREMISE THAT CONGRESS INTENDED TO EXERCISE ITS POWER TO SIMPLIFY
HOLDING COMPANY SYSTEMS AND TO REMOVE UNECONOMIC COMPANIES WITHOUT
DESTROYING LEGITIMATE INVESTMENT VALUE.  IT IS CONSISTENT WITH THIS
PREMISE THAT THE INVESTMENT VALUE DETERMINED BY THE COMMISSION BE THE
INVESTMENT VALUE THE SECURITIES WOULD HAVE IF IT WERE NOT FOR THE
LIQUIDATION REQUIRED BY THE ACT.  THIS DOES NOT MEAN, HOWEVER, THAT THE
AGENCY MUST VALUE THE STOCK AS IF THE ACT HAD NEVER AFFECTED THE
HOLDING COMPANY SYSTEM OF WHICH THE PARTICULAR COMPANY DEALT WITH IN
THE PLAN IS A PART.  FN36  WHEN THE COMMISSION VALUES A SECURITY
INTEREST BY DETERMINING THE VALUE THAT INTEREST WOULD HAVE IF IT WERE
NOT FOR THE PRESENT LIQUIDATION OR REORGANIZATION REQUIRED BY THE ACT,
IT SUBSTANTIALLY COMPLIES WITH THE STATUTORY MANDATE. 

THERE ARE AT LEAST TWO SUFFICIENT REASONS, BOTH OF WHICH ARE
ILLUSTRATED BY THE PRESENT CASE.  IT WOULD BE ADMINISTRATIVELY
IMPOSSIBLE, IN DETERMINING THE INVESTMENT VALUE OF SECURITIES IN A
CORPORATION BEING LIQUIDATED, TO REEVALUATE EVERY TRANSACTION IN THE
GRADUAL SIMPLIFICATION OF THE SYSTEM OF WHICH THE COMPANY IS A PART, AS
IF THE ACT HAD NEVER BEEN PASSED.  FN37  IF THE COMMISSION WERE
REQUIRED TO RECONSTITUTE ENGINEERS' BALANCE SHEET AS IF THE ACT HAD
NEVER BEEN PASSED, IT WOULD BE NECESSARY, FOR EXAMPLE, RETROACTIVELY TO
EVALUATE THE ECONOMIC CONSEQUENCES OF THE COMPELLED DIVESTMENT OF
ENGINEERS' INTEREST IN PUGET SOUND POWER AND LIGHT CORPORATION IN 1943
AND TO DETERMINE WHETHER AND TO WHAT EXTENT ENGINEERS WOULD HAVE GAINED
OR LOST BY RETAINING ITS INTEREST IN PUGET SOUND TO THE PRESENT TIME. 
FN38  THE DIFFICULTIES OF GOING THROUGH SUCH A PROCEDURE, MULTIPLIED BY
THE NUMBER OF DIVESTMENTS COMPELLED BY THE ACT OVER MANY YEARS,  FN39
WOULD BE INSUPERABLE. 

THE SECOND REASON LIES IN THE BASIS FOR THE OTIS RULE ITSELF.  SINCE
CONGRESS INTENDED THAT INVESTMENT VALUES SHOULD BE PRESERVED IN EACH
LIQUIDATION OR DIVESTITURE REQUIRED BY THE ACT, WE MAY ASSUME THAT IT
INTENDED THE COMMISSION TO VALUE SECURITIES IN A PARTICULAR LIQUIDATION
AS IF THAT LIQUIDATION WERE NOT TAKING PLACE, BUT NOT AS IF THE ACT HAD
NEVER BEEN PASSED; FOR, IF INVESTMENT VALUES HAVE BEEN PRESERVED IN THE
EARLY DIVESTITURES, IT IS USELESS TO RECONSTITUTE THE BALANCE SHEET AS
IF THE DIVESTITURES HAD NOT TAKEN PLACE.  THE COMMISSION'S
DETERMINATIONS UPON WHICH THE VARIOUS DIVESTITURE ORDERS WERE BASED MAY
NOT BE COLLATERALLY ATTACKED. 

B. WE HAVE OBSERVED THAT THE STANDARD OF COMPENSATION TO BE ACCORDED
SECURITY HOLDERS DOES NOT DEPEND UPON WHETHER THEIR SECURITY INTERESTS
ARE TO BE RETIRED BY EXCHANGING THEM FOR NEW SECURITIES IN A CONTINUING
ENTERPRISE OR BY PAYMENT IN CASH.  HOWEVER, THESE DIFFERENT METHODS OF
COMPENSATING THE SECURITY HOLDER DETERMINE WHICH OF VARYING METHODS OF
ARRIVING AT INVESTMENT VALUE WILL BE EMPLOYED BY THE COMMISSION.  WHERE
THE SECURITY HOLDER IS TO RECEIVE NEW SECURITIES, THE COMMISSION IS
FACED WITH A DUAL VALUATION PROBLEM.  IT MUST EVALUATE THE SECURITY TO
BE SURRENDERED AND THE SECURITIES TO BE RECEIVED IN EXCHANGE. 
RECOGNIZING THE INHERENT COMPLEXITY OF THIS PROBLEM, THIS COURT HAS
HELD THAT A SECURITY HOLDER MAY BE ACCORDED THE EQUITABLE EQUIVALENT OF
THE RIGHTS SURRENDERED WITHOUT PLACING A DOLLAR VALUATION UPON EITHER
THE RIGHTS SURRENDERED OR THE SECURITIES GIVEN IN COMPENSATION
THEREFOR.  FN40  IN THE OTIS CASE, IN WHICH THE PLAN CONTEMPLATED
COMPENSATING BOTH PREFERRED AND COMMON STOCKHOLDERS OF UNITED POWER IN
COMMON STOCK OF POWER'S SOLE SUBSIDIARY, THE COMMISSION WAS REQUIRED TO
APPORTION THE POWER COMMON BETWEEN THE TWO CLASSES BY EVALUATING THE
EXPECTATION OF INCOME FROM THE NEW STOCK AND THE RISK FACTOR OF THAT
STOCK IN RELATION TO THE RIGHTS BEING SURRENDERED.  IN EFFECT THE
COMMISSION'S TASK WAS TO APPORTION TO THE NEW STOCK EARNING POWER
SUBSTANTIALLY EQUIVALENT TO THAT SURRENDERED. 

BUT WHEN THE CLAIMS OF THE SENIOR SECURITY HOLDERS ARE TO BE
SATISFIED BY PAYMENT IN CASH, THE COMMISSION APPROPRIATELY VARIES ITS
APPROACH.  IN SUCH A CASE IT HOLDS THAT "THE MOST WORKABLE HYPOTHESIS
FOR FINDING A FAIR EQUIVALENT BETWEEN CASH RECEIVED AND THE SECURITY
SURRENDERED UNDER THE COMPULSION OF THE PLAN, IS THAT OF REINVESTMENT
IN A SECURITY OF COMPARABLE RISK."  THE QUESTION TO WHICH THE
COMMISSION SEEKS THE ANSWER IS, "HOW MUCH MONEY WOULD IT COST THE
PREFERRED STOCKHOLDERS TO REPLACE THEIR SECURITIES WITH COMPARABLE
ONES?" 

BADGER SOUGHT TO PROVIDE AN ANSWER TO THIS QUESTION BY DERIVING FROM
HIS ANALYSIS AND COMPARISON A PROPER YIELD BASIS FOR ENGINEERS'
PREFERRED,  FN41  WHICH, TAKING INTO ACCOUNT THE EFFECT OF THE RISK
FACTOR, HE FOUND TO BE 4.6%.  CAPITALIZATION OF THIS RATE GAVE THE
PREFERREDS VALUES RANGING FROM $108.70 PER SHARE TO $130.33 PER SHARE,
AMOUNTS WELL IN EXCESS OF THE CALL PRICES.  THE TESTIMONY OF ENGINEERS'
PRESIDENT, BARNES, AS TO "WHAT A WILLING BUYER WOULD PAY AND WHAT A
WILLING SELLER WOULD TAKE IN TODAY'S MARKET FOR SUCH SECURITIES,"
ABSENT A PUBLIC UTILITY HOLDING COMPANY ACT, COINCIDED WITH THAT OF
BADGER, AS TO THE ESTIMATED GOING-CONCERN VALUE IN CASH OF THE
PREFERRED.  FN42 

THE COMMISSION DID NOT RELY EXCLUSIVELY ON THIS EXPERT TESTIMONY BUT
MADE ITS OWN STUDY OF THE MARKET AND DIVIDEND HISTORY AND THE EARNINGS
COVERAGE AND ASSETS COVERAGE OF THE PREFERRED.  THIS SERVED NOT ONLY AS
A CHECK UPON THE ACCURACY OF BADGER'S PREMISES BUT AS A BASIS FOR THE
COMMISSION'S EXERCISE OF ITS INDEPENDENT JUDGMENT.  THE COMMISSION
FOUND IT UNNECESSARY TO MAKE ITS OWN INDEPENDENT ESTIMATE OF THE DOLLAR
VALUE OF THE PREFERRED STOCK, ABSENT A HOLDING COMPANY ACT.  FN43  WHEN
IT BECAME APPARENT THAT THE GOING-CONCERN VALUE WOULD EXCEED THE CALL
PRICES OF THE STOCKS BY A CONSIDERABLE AMOUNT, THE EXACT GOING-CONCERN
VALUE BECAME IMMATERIAL, BECAUSE THE CALL PRICE, AT WHICH THE
CORPORATION COULD ALWAYS RETIRE THE PREFERRED WITHOUT REFERENCE TO THE
ACT, MARKED THE LIMITS OF THE PREFERREDS' CLAIMS. 

THE COMMON STOCKHOLDERS CONTEND THAT THIS METHOD OF VALUATION, AS
EMPLOYED IN THIS CASE, PRODUCED ONLY "A HYPOTHETICAL MARKET VALUE OF
THE PREFERREDS BASED ON MARKET PRICES AS OF THE TIME WHEN THE TESTIMONY
OF BADGER AND BARNES WAS GIVEN (THE FIRST FEW MONTHS OF 1946)."  THEY
CRITICIZE BADGER, WHOSE EVIDENCE WAS UNDISPUTED AND WAS ACCEPTED BY THE
COMMISSION, FOR FAILING TO EMPLOY, AS A BASIS FOR COMPARISON, MEDIAN
PRICES AND YIELDS OF THE SECURITIES CHOSEN FOR COMPARISON, COMPUTED ON
THE BASIS OF PRICES COVERING A REPRESENTATIVE PERIOD OF TIME; THEY
COMPLAIN THAT THE LOW YIELD RATES AND HIGH MARKET LEVELS OF JANUARY,
1946, WERE ABNORMAL.  AND IT IS SAID THAT THE COMMISSION AND BADGER
FAILED PROPERLY TO EVALUATE ENGINEERS' ECONOMIC FUTURE, ABSENT A
HOLDING COMPANY ACT, I.E., FAILED TO MAKE "A PREDICTION AS TO WHAT WILL
OCCUR IN THE FUTURE, AN ESTIMATE ...  BASED ON AN INFORMED JUDGMENT
WHICH EMBRACES ALL FACTS RELEVANT TO FUTURE EARNING CAPACITY AND HENCE
TO PRESENT WORTH, INCLUDING, OF COURSE, THE NATURE AND CONDITION OF THE
PROPERTIES, THE PAST EARNINGS RECORD, AND ALL CIRCUMSTANCES WHICH
INDICATE WHETHER OR NOT THAT RECORD IS A RELIABLE CRITERION OF FUTURE
PERFORMANCE."  CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, 312 U.S. 510,
526.    WE MAY CONCEDE THAT, EVEN THOUGH THE PREFERRED IS TO BE PAID IN
CASH AND THUS SHOULD RECEIVE CASH SUFFICIENT TO PURCHASE A COMPARABLE
INVESTMENT WITH A COMPARABLE YIELD, THE COMMISSION WOULD BE WRONG IN
SELECTING, AS A BASIS FOR VALUATION, ABNORMAL OR HIGHLY SPECULATIVE
MARKET VALUES OF A TRANSIENT NATURE.  BUT THIS WAS NOT DONE.  BADGER
STATED THAT "THE PRICES OF PREFERRED STOCKS TODAY ARE PREDICATED ON
FUNDAMENTAL CONDITIONS PREVAILING IN THE MONEY MARKETS, CONDITIONS
WHICH ARE OF A PERMANENT NATURE."  HE ADDED THAT THE VALUES HE PLACED
UPON THE PREFERREDS WERE "VALUES OF A PERMANENT NATURE AND  ...  NOT
VALUES OF A TEMPORARY OR SPECULATIVE NATURE."  FN44  HIS CONCLUSION WAS
SUPPORTED BY A SUMMARY OF THE PERTINENT ECONOMIC CONSIDERATIONS,
INCLUDING THE EFFECTS OF GOVERNMENT FINANCING AND THE LARGE GOVERNMENT
DEBT, TOGETHER WITH A COMPARISON OF YIELDS OF GOVERNMENT BONDS, HIGH
GRADE CORPORATE BONDS, AND HIGH GRADE PREFERRED STOCKS FROM 1932 TO
1945.  FINALLY, BADGER'S ANALYSIS OF ENGINEERS' ECONOMIC STATUS, ABSENT
A HOLDING COMPANY ACT, OF ENGINEERS' PREFERRED, AND OF COMPARABLE
SECURITIES OF OTHER COMPANIES WAS THOROUGH AND ADEQUATE. 

THE COMMISSION MADE ITS OWN INDEPENDENT STUDY OF ENGINEERS' ECONOMIC
RECORD.  IN EVALUATING BADGER'S TESTIMONY REGARDING THE QUALITY OF
ENGINEERS' PREFERREDS, THE PROPER YIELD BASIS FOR THE STOCK, AND
ECONOMIC CONSIDERATIONS UNDERLYING THE PREDICTION THAT CURRENT YIELDS
AND PRICE LEVELS WERE RELATIVELY PERMANENT, THE COMMISSION EXERCISED
ITS INFORMED AND EXPERT JUDGMENT.  AT THE TIME IT PASSED UPON THE PLAN
IT WAS ABLE TO SAY THAT "NO SERIOUS CHALLENGE WAS MADE IN THE
PROCEEDINGS TO BADGER'S CONCLUSION THAT THE FAIR INVESTMENT VALUE OF
THE PREFERRED ON A GOING CONCERN BASIS IS IN EXCESS OF THE CALL
PRICE."  HOLDING COMPANY ACT RELEASE NO. 7041, P. 31.  ENGINEERS, IN
ITS BRIEF BEFORE THE COMMISSION, CONCEDED THAT "THESE AMOUNTS ($106.25,
$111.38, $111.50, RESPECTIVELY) ARE SUBSTANTIALLY THE PRESENT VALUE OR
INVESTMENT WORTH OF THESE THREE SERIES OF STOCK, ON A GOING CONCERN
BASIS AND APART FROM THE ACT, UNDER PREVAILING YIELDS APPLIED TO
COMPARABLE SECURITIES."  IBID.  THE COMMISSION'S DETERMINATION THAT THE
INVESTMENT VALUES OF THE PREFERREDS WERE IN EXCESS OF THEIR CALL PRICES
HAS AMPLE SUPPORT IN THE RECORD. 

BUT THE COMMON STOCKHOLDERS CONTEND THAT A DROP IN YIELD RATES,
CAUSED BY A LOWERING OF SUPPORT LEVELS OF GOVERNMENT SECURITIES, SHOULD
BE TAKEN INTO CONSIDERATION BY THIS COURT IN APPRAISING THE
COMMISSION'S DETERMINATION.  ANY CHANGES WHICH HAD OCCURRED SINCE THE
DATE OF CONSUMMATION WOULD OF COURSE BE IRRELEVANT, FOR THE PREFERRED
STOCKHOLDERS COULD NOT BE REQUIRED TO SURRENDER THEIR INVESTMENT AND
THEIR ADVANTAGEOUS DIVIDEND RATE AND YET REMAIN SUBJECTED TO THE RISK
OF FLUCTUATION IN THE VALUE OF THEIR ERSTWHILE INVESTMENT.  BUT THE
COMMON STOCKHOLDERS HAVE FAILED TO SHOW THAT THE INVESTMENT VALUES OF
THE PREFERREDS HAVE FALLEN BELOW THE CALL PRICES EVEN AFTER THAT DATE. 
FN45 

AN ARGUMENT WHICH HAS BEEN VARIOUSLY ARTICULATED BY THE DISTRICT
COURT, THE COURT OF APPEALS, AND THE COMMON STOCKHOLDERS RUNS TO THE
EFFECT THAT THE COMMISSION'S METHOD OF VALUATION, WHICH ASSIGNED NO
VALUE TO THE COMMON STOCK, AMOUNTS TO GIVING THE PREFERRED THE
INVESTMENT VALUE IT WOULD HAVE HAD IN THE ABSENCE OF A SEC. 11
LIQUIDATION, WHILE GIVING THE COMMON SOMETHING LESS THAN ITS INVESTMENT
VALUE APART FROM THE LIQUIDATION.  AS THE DISTRICT COURT PHRASED IT,
"THE ARGUMENT FOR PAYMENT OF THE PREMIUM IS COMPARABLE TO DEALING CARDS
OFF THE TOP OF A DECK.  WHEN FULL HANDS (BASED ON THEORETICAL
'INVESTMENT VALUE') HAVE BEEN DEALT TO ALL THE SENIOR SECURITY HOLDERS,
THE COMMON WOULD MERELY GET WHATEVER HAPPENS TO REMAIN.  UNDER THE ACT
THE INTERESTS OF ALL INVESTORS MUST BE CONSIDERED."  71 F.SUPP.  AT
802.  FN46 

THE INITIAL ERROR IN THIS ARGUMENT IS ITS ASSUMPTION THAT THE
COMMISSION DEALS FROM LESS THAN A FULL DECK, THAT THE IMPACT OF SEC. 11
HAS CAUSED LOSSES TO ENGINEERS.  FOR, IF INVESTMENT VALUES HAVE NOT
BEEN DESTROYED BY THE OPERATION OF SEC. 11, GIVING THE PREFERRED
STOCKHOLDERS THE INVESTMENT VALUE OF THEIR SHARES WILL NOT DEPRIVE THE
COMMON OF ANY PART OF THE INVESTMENT VALUE OF THEIR STOCK.  WE HAVE
ALREADY DEALT WITH THE HYPOTHESIS ACCEPTED BY THE DISTRICT COURT AND
THE COURT OF APPEALS THAT THE IMPACT OF THE ACT PRIOR TO THE
LIQUIDATION INVOLVED HERE HAS CAUSED LOSSES BY FORCING THE COMPANY TO
DIVEST ITSELF OF ITS INTERESTS IN NUMEROUS OPERATING COMPANIES.  FN47 

IN ADDITION, HOWEVER, IT IS SAID THAT VALUE DISAPPEARED IN THE
LIQUIDATION OF ENGINEERS ITSELF, IN SPITE OF THE FACT THAT WHEN
ENGINEERS' MANAGEMENT CAME FORWARD WITH A PLAN FOR THE LIQUIDATION OF
ENGINEERS, THEY HAD ASSERTED THAT THERE WAS NO ECONOMIC JUSTIFICATION
FOR THE CONTINUED EXISTENCE OF THAT CORPORATION, IN FACT HAD
CHARACTERIZED IT AS AN "ECONOMIC MONSTROSITY."  FN48 IN THE LIGHT OF
THE PRESENT RECORD IT SEEMS FUTILE TO ARGUE THAT THE DISSOLUTION OF
ENGINEERS INJURED THE COMMON STOCKHOLDERS BY DEPRIVING THEM OF THE SO
CALLED ADVANTAGES OF "LEVERAGE,"  FN49 DIVERSITY OF INVESTMENT AND A
CENTRALIZED MANAGEMENT, ARGUMENTS WHICH, INCIDENTALLY, WERE LARGELY
REJECTED BY CONGRESS AT THE TIME OF THE PASSAGE OF THE ACT.  FN50  THE
RECORD INDICATES THAT WHATEVER TAX ADVANTAGE WOULD BE DERIVED FROM
REPORTING INCOME ON A CONSOLIDATED BASIS WAS NOT COMMENSURATE WITH THE
COST OF PRESERVING ENGINEERS. 

EVEN IF WE COULD FIND THAT INVESTMENT VALUE HAD BEEN DESTROYED BY THE
LIQUIDATION OF ENGINEERS, OR IF WE COULD FIND THAT THE OPERATION OF THE
ACT PRIOR TO THE FORMULATION OF ENGINEERS' PLAN HAD INFLICTED LOSSES ON
THE ENGINEERS SYSTEM AND COULD TAKE SUCH LOSSES INTO ACCOUNT, THESE
FACTS WOULD BE IRRELEVANT, EXCEPT TO THE EXTENT THAT SUCH LOSSES HAD
IMPAIRED THE INVESTMENT VALUE OF ENGINEERS' PREFERRED BY LOWERING ITS
ASSETS COVERAGE OR OTHERWISE ADVERSELY AFFECTING THE ECONOMIC PROSPECTS
OF THE COMPANY APART FROM THE ACT.  FOR THE "FAIR AND EQUITABLE"
STANDARD REQUIRES THAT, BEFORE THE JUNIOR SECURITY HOLDER MAY SHARE,
THE SENIOR SECURITY HOLDER MUST RECEIVE THE EQUITABLE EQUIVALENT OF THE
RIGHTS SURRENDERED, IN THIS CASE THE INVESTMENT VALUE.  SINCE THE
INVESTMENT VALUE OF THE PREFERRED MUST BE MEASURED IN CASH IN THIS
CASE, THERE IS NO OCCASION FOR "AN EXAMINATION OF THE CORRELATIVE
RIGHTS OF THE PREFERRED AND COMMON STOCKHOLDERS."  THE RIGHTS OF THE
COMMON ARE NOT ENTITLED TO RECOGNITION UNTIL THE RIGHTS OF THE
PREFERRED HAVE BEEN FULLY SATISFIED. 

C. THE DISTRICT COURT, WITH THE APPARENT APPROVAL OF THE COURT OF
APPEALS, CAST THE STANDARD OF "FAIR AND EQUITABLE" IN THE MOLD OF
"COLLOQUIAL EQUITIES."  MAKING PAYMENT OF THE PREFERRED IN EXCESS OF
$100 PER SHARE UNFAIR, IT THOUGHT, WERE VARIOUS "COLLOQUIAL EQUITIES,"
WHICH MAY OR MAY NOT HAVE HAD AN INCIDENTAL BEARING ON THE INVESTMENT
VALUE OF THE SHARES.  THE ISSUING PRICE WAS ONE SUCH FACTOR.  THE
"IMPORTANT CONSIDERATION" WAS "NOT WHAT THE PREFERRED SECURITY HOLDERS
PAID, BUT HOW MUCH THE COMPANY RECEIVED FOR THEIR STOCK," AND SINCE IT
WAS "PRACTICALLY CERTAIN" THAT THE COMPANY RECEIVED NO MORE THAN $98
PER SHARE FOR ANY OF THE THREE SERIES OF PREFERREDS AND THAT THE PUBLIC
PAID NO MORE THAN $100 PER SHARE, THERE WAS "NO CONSIDERATION OF
COLLOQUIAL EQUITY WHY THE PREFERREDS SHOULD BE PAID A PREMIUM."  71
F.SUPP.  AT 801.  OTHER "COLLOQUIAL EQUITIES" WERE THE MARKET HISTORY
OF THE PREFERRED,  FN51  THE FACT THAT EARNINGS HAD BEEN RETAINED IN
THE SYSTEM, THUS ENHANCING THE VALUE OF THE PREFERRED AT A SACRIFICE TO
THE COMMON,  FN52  AND THE HARDSHIP WORKED BY THE ACT UPON THE COMMON
STOCK IN THE FORM OF FORCED DIVESTITURES  FN53  AND FRUSTRATION OF THE
ENTERPRISE. 

IN DECIDING THE CASE ON THE ASSUMPTION THAT "THE INQUIRY IS ONE OF
RELATIVE RIGHTS BASED ON COLLOQUIAL EQUITY," AND THAT THE OTIS CASE
ACCORDED PARTICIPATION TO SECURITY HOLDERS "IN ACCORDANCE WITH THE
STANDARD OF COLLOQUIAL EQUITY," THE DISTRICT COURT ERRED INSOFAR AS BY
"COLLOQUIAL EQUITIES" IT MEANT CONSIDERATIONS WHICH DO NOT BEAR UPON
THE INVESTMENT OR GOING-CONCERN VALUE THE PREFERRED WOULD HAVE ABSENT
THE LIQUIDATION COMPELLED BY THE ACT.  CONGRESS, PERHAPS BELIEVING THAT
THE APPLICATION OF SUCH AN AMORPHOUS STANDARD AS THAT OF "COLLOQUIAL
EQUITY" WAS BEYOND THE COMPETENCE OF COURTS AND COMMISSIONS, HAS
INSTEAD PRESCRIBED THE REQUIREMENT THAT INVESTMENT VALUES BE
PRESERVED. 

                    IV. 

THE ESCROW ARRANGEMENT.  AS WE HAVE STATED, THE PLAN HAS BEEN
CONSUMMATED BY THE PAYMENT TO THE PREFERRED OF $100 PER SHARE, AND THE
DIFFERENCE BETWEEN THE AMOUNT PAID AND THE AMOUNT WHICH WOULD BE
PAYABLE UNDER THE PLAN APPROVED BY THE COMMISSION HAS BEEN DEPOSITED IN
ESCROW, TOGETHER WITH AN AMOUNT SUFFICIENT TO GIVE THE PREFERRED,
DURING THE PERIOD OF THE LITIGATION, A RETURN ON THE SUM IN ESCROW
"MEASURED BY THE RETURN WHICH WOULD HAVE BEEN RECEIVED BY (THE
PREFERRED STOCKHOLDERS) IF THE STOCK REMAINED OUTSTANDING."  FN54  THE
PREFERRED STOCKHOLDERS, WHO RECEIVED $100 PER SHARE AT THE TIME OF THE
CONSUMMATION OF THE PLAN, WILL THUS RECEIVE, ON THE ADDITIONAL $5 OR
$10 PER SHARE HELD IN ESCROW, SUBSTANTIALLY THE SAME RETURN THEY WOULD
HAVE DERIVED BY THE RETENTION OF $5 OR $10 WORTH OF ENGINEERS'
PREFERRED STOCK. 

BUT THE PREFERRED STOCKHOLDERS CONTEND THAT THE PLAN SHOULD NOT HAVE
BEEN CONSUMMATED UNTIL SUCH TIME AS THEY WERE PAID IN FULL THE AMOUNTS
DUE THEM IN SATISFACTION OF THEIR CLAIMS; THAT, IN ADDITION TO THE
PRINCIPAL AMOUNT IN ESCROW AND INTEREST THEREON, THEY SHOULD RECEIVE AN
AMOUNT EQUAL TO DIVIDENDS ON THE $100 PER SHARE RECEIVED AT THE TIME OF
CONSUMMATION, TO THE DATE OF PAYMENT OF THE $5 OR $10 HELD IN ESCROW. 
THEIR ARGUMENT IS A TECHNICAL ONE:  IT IS SAID THAT THE COMMISSION
ACTUALLY APPLIED THE REDEMPTION PROVISION TO LIMIT THE AMOUNT OF
PAYMENT TO THEM, SINCE IN THE ABSENCE OF THAT PROVISION THEY WOULD HAVE
BEEN ENTITLED TO AN INVESTMENT VALUE HIGHER THAN THE CALL PRICES; THAT
BY THE TERMS OF THAT PROVISION THE COMPANY HAD NO RIGHT TO TERMINATE
DIVIDENDS EXCEPT BY PAYMENT OF THE FULL CALL PRICES.  THE ANSWER IS
THAT THE COMMISSION DID NOT APPLY THE REDEMPTION PROVISION, WHICH, LIKE
THE INVOLUNTARY LIQUIDATION PROVISION, WAS INOPERATIVE, BUT HELD THAT
FAIRNESS REQUIRED THAT THE PREFERREDS BE PAID NO MORE THAN THE CALL
PRICE, SINCE THE COMPANY COULD HAVE CALLED THE STOCK AT THAT PRICE AT
ANY TIME, ABSENT THE ACT. 

THE TOTAL SUM IN ESCROW IS NOT SUFFICIENT TO MEET THE PREFERRED
STOCKHOLDERS' DEMAND.  IT IS NOT APPARENT HOW THEY COULD RECOVER THE
DIFFERENCE BETWEEN THE SUM IN ESCROW AND THE SUM THEY CLAIM IN THIS
PROCEEDING.  BUT WE NEED NOT LEARN, FOR THE ESCROW PROVISION ADOPTED BY
THE DISTRICT COURT ON THE RECOMMENDATION OF THE COMMISSION IN ORDER TO
EXPEDITE CONSUMMATION OF THE PLAN WAS FAIR TO THE PREFERRED
STOCKHOLDERS.  FN55  THE $100 PER SHARE RECEIVED AT THE TIME OF THE
CONSUMMATION OF THE PLAN COULD HAVE BEEN INVESTED IN COMPARABLE
SECURITIES AT THE CURRENT RATE OF RETURN.  ON THE $5 OR $10 PER SHARE
HELD IN ESCROW THE PREFERRED STOCKHOLDERS WILL RECEIVE, FOR THE PERIOD
BETWEEN THE DATE OF CONSUMMATION AND THE DATE OF PAYMENT, A RETURN
WHICH APPROXIMATES THE FAVORABLE RATE OF RETURN THEY RECEIVED ON THEIR
PREFERRED STOCK IN ENGINEERS.  THEIR POSITION IS AT LEAST SUBSTANTIALLY
THE SAME AS IT WOULD HAVE BEEN HAD THEY RECEIVED $105 OR $110 PER SHARE
AT THE TIME OF THE CONSUMMATION OF THE PLAN. 

OUR SPECIFIC CONSIDERATION HAS APPLIED TO THE MAJOR FEATURES OF
DIFFERENCE BETWEEN THE COMMISSION AND THE REVIEWING COURTS.  IN OUR
OPINION, IN THESE RESPECTS, THE COMMISSION'S ACTION HAS NOT BEEN
CONTRARY TO LAW AND ITS FINDINGS WERE SUSTAINED BY ADEQUATE EVIDENCE. 
CONSEQUENTLY, IN ACCORDANCE WITH THE VIEWS WE HAVE STATED CONCERNING
THE SCOPE OF JUDICIAL REVIEW, THE COMMISSION'S ORDER SHOULD HAVE BEEN
SUSTAINED.  WE HAVE CONSIDERED OTHER CONTENTIONS ADVANCED BY THE
PARTIES AND FIND NOTHING IN THEM WHICH WOULD WARRANT A DIFFERENT
CONCLUSION. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  49 STAT. 803, 822, 15 U.S.C. SEC. 79K (E). 

FN2  ENGINEERS PUBLIC SERVICE CO., 9 S.E.C. 764; THE WESTERN PUBLIC
SERVICE CO., 10 S.E.C. 904; ENGINEERS PUBLIC SERVICE CO., 12 S.E.C. 41;
ENGINEERS PUBLIC SERVICE CO., 12 S.E.C. 268.  THE LATTER TWO ORDERS
WERE REVIEWED ON THE PETITION OF ENGINEERS BY THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA, WHICH, ON NOVEMBER 22, 1943, SET ASIDE THOSE
ORDERS AND REMANDED THE CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS
IN ACCORDANCE WITH ITS OPINION.  ENGINEERS PUBLIC SERVICE CO. V.
SECURITIES AND EXCHANGE COMMISSION, 78 U.S. APP. D.C. 199, 138 F.2D
936.  ON THE APPLICATIONS OF BOTH ENGINEERS AND THE COMMISSION, THIS
COURT GRANTED CERTIORARI.  322 U.S. 723.  WE WERE PREVENTED BY LACK OF
A QUORUM FROM DECIDING THE CASE, AND WHEN WE WERE ADVISED THAT THE
PARTIAL CONSUMMATION OF THE PLAN NOW UNDER CONSIDERATION RENDERED THE
QUESTION MOOT, WE ORDERED THE DECISION OF THE COURT OF APPEALS
VACATED.  332 U.S. 788. 

FN3  THE CASH WITH WHICH THE PREFERRED WAS TO BE PAID WAS TO CONSIST
OF TREASURY CASH ON HAND, CASH OBTAINED BY A SHORT-TERM BANK LOAN, AND
$21,964,632 IN CASH WHICH ENGINEERS' COMMON STOCKHOLDERS WERE TO PAY
INTO THE COMPANY'S TREASURY IN EXCHANGE FOR WARRANTS ENTITLING THEM TO
PURCHASE ONE SHARE OF GULF STATES' COMMON STOCK AT $11.50 PER SHARE,
FOR EACH SHARE OF ENGINEERS OWNED.  THE PROVISION FOR THE BANK LOAN WAS
DELETED FROM THE AMENDED PLAN, BY REQUIREMENT OF THE COMMISSION, AND
THE CASH WHICH WOULD HAVE BEEN THUS OBTAINED WAS TO BE OBTAINED FROM
SPECIAL DIVIDENDS DECLARED BY THE THREE OPERATING SUBSIDIARIES.    FN4
AFTER RETIREMENT OF THE PREFERRED, THE COMMON STOCK OF EL PASO AND
VIRGINIA (THE TWO REMAINING COMPANIES WHOSE COMMON STOCK WAS OWNED BY
ENGINEERS) WAS TO BE DISTRIBUTED AMONG THE 13,000 COMMON STOCKHOLDERS
OF ENGINEERS AS A FINAL LIQUIDATION DIVIDEND, AFTER WHICH ENGINEERS AND
THE SYSTEM'S SERVICE COMPANY WERE TO DISSOLVE. 

FN5  THE $5 SERIES WAS ISSUED IN MARCH, 1928, AND WAS SOLD, WITH A
CONVERSION PRIVILEGE WHICH HAD SINCE EXPIRED, TO THE PUBLIC AT $100 PER
SHARE.  THE $5.50 PREFERRED WAS ISSUED IN OCTOBER OF THE SAME YEAR AND
WAS SOLD, WITH WARRANTS (INOPERATIVE AT THE TIME THE PLAN WAS PROPOSED)
ENTITLING HOLDERS TO PURCHASE COMMON STOCK, TO THE PUBLIC AT $99.50 PER
SHARE.  THE $6 SERIES WAS ISSUED IN SEPTEMBER, 1930, AND SOLD TO THE
PUBLIC AT $100. 

FN6  EXCEPT FOR THE PERIOD FROM JULY 1, 1933, TO JULY 31, 1936,
DIVIDENDS ON THE PREFERRED STOCK WERE NEVER IN ARREARS.  THE ARREARAGES
FOR THIS SINGLE PERIOD OF DELINQUENCY WERE SATISFIED IN 1936 AND 1937. 

FN7  "THE $5.00 SERIES REACHED A HIGH OF $123.00 IN 1929; ITS AVERAGE
PRICE WITH THE CONVERSION PRIVILEGE WAS $60.94; AND $80.50 SINCE THE
EXPIRATION OF THAT PRIVILEGE, ITS OVERALL AVERAGE SINCE ISSUE IS
$67.16.  THE $5.50 SERIES HAD AN AVERAGE OF $53.98 WHILE ITS WARRANT
RIGHT EXISTED, AND AN AVERAGE OF $85.23 SINCE; IT REACHED A HIGH OF
$109.00 IN 1929, AND ITS OVERALL AVERAGE SINCE ISSUE IS $64.52.  THE
$6.00 PREFERRED REACHED ITS HIGHEST MARKET PRICE IN 1945; ITS AVERAGE
PRICE SINCE ISSUE IS $62.77.  AS OF FEBRUARY 13, 1946, THE LATEST DATE
COVERED IN THE HEARINGS, THE $5.00 SERIES WAS SELLING AT 105 1/8, THE
$5.50 SERIES AT 105 3/4, AND THE $6.00 SERIES AT 109. 

"ENGINEERS COMMON, ISSUED IN 1925, REACHED A HIGH OF 79 5/8 IN 1929
AND A LOW OF 1 1/8 IN 1935.  ON FEBRUARY 13, 1946 IT WAS SELLING AT
36."  HOLDING COMPANY ACT RELEASE NO. 7041, P. 27, N. 45.  QUOTATIONS
IN THE TEXT THROUGH NOTE 11 ARE FROM THIS RELEASE UNLESS OTHERWISE
INDICATED. 

FN8  THE COMMISSION SUMMARIZED BADGER'S TESTIMONY AS FOLLOWS:  "AFTER
ANALYZING THE EARNINGS AND ASSETS OF ENGINEERS, HE (BADGER) SELECTED
FOR COMPARISON THE PREFERRED STOCKS OF FIVE PUBLIC UTILITY HOLDING
COMPANIES WHICH HE BELIEVED TO BE SIMILAR TO ENGINEERS.  THESE
COMPANIES WERE COMPARED WITH ENGINEERS FOR THE YEARS 1940 TO 1945 WITH
REFERENCE TO 'TIMES ALL CHARGES AND PREFERRED DIVIDENDS EARNED,'
'PROPORTION OF PRIOR OBLIGATIONS TO TOTAL CAPITALIZATION,' 'BOOK VALUE
OF EQUITY PER SHARE OF PREFERRED,' 'PERCENT OF NET QUICK ASSETS TO
PRIOR OBLIGATIONS' AND 'TIMES PARENT COMPANY DIVIDENDS WERE EARNED.' 
IT APPEARED THAT IN GENERAL THE POSITION OF ENGINEERS' PREFERRED WAS
SOMEWHAT BELOW THE AVERAGE OF THE FIVE OTHER COMPANIES UNTIL THE
DISPOSITION OF PUGET SOUND IN 1943.  AS A CONSEQUENCE OF THAT
DISPOSITION, ITS POSITION IMPROVED TO SLIGHTLY OVER THE AVERAGE FOR
THOSE COMPANIES.  BADGER CONCLUDED THAT ON AN OVERALL BASIS ENGINEERS
WAS IN A MEDIAN OR AVERAGE POSITION AS COMPARED TO THE FIVE COMPANIES
STUDIED.  ON THE BASIS OF A COMPARISON OF THE YIELDS OF THE FIVE
SECURITIES STUDIED, HE CONCLUDED THAT THE $5.00 PREFERRED OF ENGINEERS
HAD AN AVERAGE VALUE OF $107.49 A SHARE, THE $5.50 PREFERRED AN AVERAGE
VALUE OF $118.31 A SHARE, AND THE $6.00 PREFERRED AN AVERAGE VALUE OF
$129.07 A SHARE. 

"BADGER ALSO PREPARED A STUDY OF THE PREFERRED STOCKS OF TEN
OPERATING AND HOLDING COMPANIES SELECTED FOR THE SIMILARITY OF THEIR
EARNINGS TO THOSE OF ENGINEERS.  THESE COMPANIES ON AN AVERAGE EARNED
ALL CHARGES AND PREFERRED DIVIDENDS 1.49 TIMES IN 1943, AS AGAINST 1.40
TIMES FOR ENGINEERS.  IN 1944 THEY EARNED OVERALL CHARGES 1.48 TIMES,
AS AGAINST 1.54 TIMES FOR ENGINEERS.  THEY COVERED PREFERRED DIVIDENDS,
2.52 TIMES IN 1943, AS AGAINST 2.48 FOR ENGINEERS, AND IN 1944 COVERED
PREFERRED DIVIDENDS 2.46 TIMES, AS AGAINST A SIMILAR COVERAGE OF 3.20
FOR ENGINEERS.  THE STOCKS SELECTED SOLD AT PRICES TO YIELD BETWEEN 3.9
AND 5.4%, OR AN AVERAGE YIELD FOR THE TEN STOCKS OF 4.5%.  BADGER
APPLIED THIS YIELD TO THE SEVERAL CLASSES OF ENGINEERS' PREFERRED AND
OBTAINED CORRESPONDING VALUES OF $111.11 FOR THE $5.00 PREFERRED,
$122.22 FOR THE $5.50 PREFERRED, AND $133.33 FOR THE $6.00 PREFERRED. 
BADGER CONCLUDED, HOWEVER, THAT IN HIS OPINION, AND IN VIEW OF THE
'INVESTMENT CHARACTERISTICS' OF THE COMPANY AND THE CONDITIONS OF THE
MONEY MARKET, A PROPER YIELD FOR THE ENGINEERS PREFERRED, ABSENT A CALL
PRICE, WOULD BE 4.6%, SO THAT THE CORRESPONDING INVESTMENT WORTH PER
SHARE OF THE THREE SERIES WOULD BE  ...  " THE AMOUNTS STATED IN THE
TEXT.  HOLDING COMPANY ACT RELEASE NO. 7041, P. 30. 

FN9  THE COMMISSION CITED SEVERAL OF ITS PREVIOUS OPINIONS FOR
SUPPORT OF THIS RESULT:  BUFFALO, NIAGARA & EASTERN POWER CORP.,
HOLDING CO. ACT RELEASE NO. 6083; NEW ENGLAND POWER ASSOCIATION,
HOLDING COMPANY ACT RELEASE NO. 6470; AMERICAN POWER & LIGHT CO.,
HOLDING COMPANY ACT RELEASE NO. 6176. 

FN10  AT THE TIME OF THE HEARINGS THE COMPANY HAD ON HAND IN ITS
TREASURY SOME $14,650,000 IN IDLE CASH, AND IT WAS ESTIMATED THAT BY
THE END OF 1946 THIS SUM WOULD REACH $16,825,000.  THESE FUNDS HAD
ACCUMULATED FROM PROPERTY DISPOSITIONS AND RETAINED EARNINGS, THE
MANAGEMENT HAVING PURSUED A POLICY OF WITHHOLDING DIVIDENDS ON THE
COMMON UNTIL IT WAS SATISFIED THAT THE SYSTEM HAD MADE THE ADJUSTMENTS
REQUIRED BY THE ACT. 

FN11  THE COMMISSION OBSERVED:  "IN ALL OF ITS DIVESTMENTS, ENGINEERS
HAS BEEN FREE IN ITS CHOICE OF METHODS, AND, WITHIN LIMITS, TO CHOOSE
THE TIME FOR DIVESTMENT.  ALL SALES HAVE BEEN NEGOTIATED BY ENGINEERS
AT ARM'S-LENGTH.  IF, AS IN THE CASE OF PUGET SOUND, THE SALE BROUGHT
LESS THAN THE CARRYING VALUE ON THE BOOKS OF ENGINEERS, THE INDICATION
IS THAT THE CARRYING VALUE WAS EXCESSIVE AND NOT THAT THE SALES PRICE
WAS LOW.  IT IS SIGNIFICANT THAT THE MARKET PRICE OF ENGINEERS' COMMON
WHEN THE PLAN WAS FILED WAS THE HIGHEST SINCE 1932 AND THAT THE PRICE
HAS BEEN RISING STEADILY SINCE 1942 WHEN THE PROGRAM OF SIMPLIFICATION
GOT UNDER WAY.  ...  ENGINEERS' COMMON REACHED A LOW OF 1 1/8 IN 1935. 
BY 1945, WHEN THE PLAN WAS FILED, IT HAD REACHED A HIGH OF 37." 
HOLDING COMPANY ACT RELEASE NO. 7041, P. 34, N. 55.  SEE ALSO NOTE 38
INFRA. 

FN12  THE BANK LOAN WHICH THE PLAN PROPOSED IN ORDER TO RAISE CASH
WITH WHICH TO PAY OFF THE PREFERRED WAS FOUND BY THE COMMISSION TO BE
UNNECESSARY.  SEE NOTE 3 SUPRA.  RETENTION OF $65,000,000 OF VIRGINIA
STOCK BY A TRUSTEESHIP ARRANGEMENT WHICH NECESSITATED RETENTION OF A
LARGE PART OF ENGINEERS' STAFF WAS FOUND UNNECESSARY.  ALL STOCK OF
VIRGINIA COULD BE DISTRIBUTED IMMEDIATELY UPON PAYMENT OF THE PREFERRED
AT $100 PER SHARE AND CREATION OF AN APPROPRIATE ESCROW TO PROTECT THE
PREFERRED SHAREHOLDERS' RIGHTS TO ADDITIONAL PAYMENTS FOUND DUE.  THE
PLAN WAS ALSO FOUND "INCOMPLETE AND UNFAIR" BECAUSE IT FAILED TO
INCLUDE A PROVISION FOR SUPERVISION BY THE COMMISSION OVER THE PAYMENT
OF FEES AND EXPENSES INCURRED IN CONNECTION WITH THE PLAN. 

FN13  COUNSEL FOR THE COMMISSION HAS TAKEN THE POSITION IN THESE
PROCEEDINGS THAT THIS PROVISION REGARDING AN ESCROW DID NOT CONSTITUTE
AN "AMENDMENT" TO THE PLAN, STATING THAT "THE COMMISSION EXPRESSLY
REFUSED TO AMEND THE PLAN AND SAID IF AN ESCROW TURNS OUT TO BE
NECESSARY IT CAN BE DONE UNDER THE AEGIS OF THE COURT, AND WE HAVE
VIEWED THE ESCROW DEVICE SIMPLY AS A DEVICE IN CONNECTION WITH THE
MECHANICS OF CONSUMMATION." 

COMMISSIONER CAFFREY, WHILE JOINING FULLY IN THE COMMISSION'S
OPINION, ADDED THAT ENGINEERS, AS A HOLDING COMPANY OF A SINGLE UTILITY
COMPANY, WOULD HAVE BEEN SUBJECT TO PROCEEDINGS UNDER SEC. 11(B)(2) OF
THE ACT HAD IT NOT COME FORWARD WITH A PLAN.  ITS DISSOLUTION,
THEREFORE, WAS A LOGICAL STEP FOLLOWING THE REQUIRED COMPLIANCE WITH
THE COMMISSION'S ORDERS UNDER SEC. 11(B)(1), AND WAS NOT VOLUNTARY. 
COMMISSIONER HANRAHAN CONCURRED BUT THOUGHT THE DISCUSSION OF THE
INVESTMENT VALUES OF THE PREFERRED WHOLLY UNNECESSARY, FOR IN HIS VIEW
THE LIQUIDATION WAS VOLUNTARY, AND THE PREFERRED SHOULD THEREFORE
RECEIVE THE VOLUNTARY LIQUIDATION PREFERENCES PROVIDED IN ENGINEERS'
CHARTER.  HOLDING COMPANY ACT RELEASE NO. 7119. 

FN14  EXAMPLES SELECTED BY THE COURT WERE DIVESTITURES OF INTERESTS
IN PUGET SOUND POWER & LIGHT COMPANY AND EL PASO NATURAL GAS COMPANY. 
SEE NOTE 11 SUPRA AND NOTE 38 INFRA. 

FN15  "THE COMMISSION TAKES THE POSITION BEFORE US THAT 'UNLESS THE
CONCLUSIONS OF THE COMMISSION LACK "ANY RATIONAL AND STATUTORY
FOUNDATION" THEY SHOULD NOT HAVE BEEN DISTURBED BY THE COURT BELOW FOR
THE "FAIR AND EQUITABLE" RULE OF SECTION 11(E)  ...  (WAS) INSERTED BY
THE FRAMERS OF THE ACT IN ORDER TO PROTECT THE VARIOUS INTERESTS AT
STAKE.  ...  THE VERY BREADTH OF THE STATUTORY LANGUAGE PRECLUDES A
REVERSAL OF THE COMMISSION'S JUDGMENT SAVE WHERE IT HAS PLAINLY ABUSED
ITS DISCRETION IN THESE MATTERS', CITING, AMONG OTHER AUTHORITIES,
SECURITIES COMM'N V. CHENERY CORP. (THE SECOND CHENERY CASE), 332 U.S.
194, 195, AT PAGES 207, 208."  168 F.2D AT 729.  SEE NOTE 16, INFRA. 

FN16  THE COURT OF APPEALS HELD THAT THE RULE OF REVIEW DECLARED IN
THE CHENERY CASE WAS INAPPLICABLE IN THE PRESENT CASE BECAUSE CHENERY
INVOLVED A PROCEEDING FOR REVIEW UNDER SEC. 24(A) OF THE ACT, WHILE
THIS IS A PROCEEDING UNDER SEC. 11(E).  BUT SEE TEXT INFRA. 

FN17  THE PERTINENT PART OF SEC. 11(E) IS IN TERMS AS FOLLOWS:  "IF,
AFTER NOTICE AND OPPORTUNITY FOR HEARING, THE COMMISSION SHALL FIND
SUCH PLAN, AS SUBMITTED OR AS MODIFIED, NECESSARY TO EFFECTUATE THE
PROVISIONS OF SUBSECTION (B) AND FAIR AND EQUITABLE TO THE PERSONS
AFFECTED BY SUCH PLAN, THE COMMISSION SHALL MAKE AN ORDER APPROVING
SUCH PLAN; AND THE COMMISSION, AT THE REQUEST OF THE COMPANY, MAY APPLY
TO A COURT, IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION (F) OF
PLAN.  IF, UPON ANY SUCH APPLICATION, THE COURT, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, SHALL APPROVE SUCH PLAN AS FAIR AND EQUITABLE
AND AS APPROPRIATE TO EFFECTUATE THE PROVISIONS OF SECTION 11, THE
COURT AS A COURT OF EQUITY MAY, TO SUCH EXTENT AS IT DEEMS NECESSARY
FOR THE PURPOSE OF CARRYING OUT THE TERMS AND PROVISIONS OF SUCH PLAN,
TAKE EXCLUSIVE JURISDICTION AND POSSESSION OF THE COMPANY OR COMPANIES
AND THE ASSETS THEREOF, WHEREVER LOCATED; AND THE COURT SHALL HAVE
JURISDICTION TO APPOINT A TRUSTEE, AND THE COURT MAY CONSTITUTE AND
APPOINT THE COMMISSION AS SOLE TRUSTEE, TO HOLD OR ADMINISTER, UNDER
THE DIRECTION OF THE COURT AND IN ACCORDANCE WITH THE PLAN THERETOFORE
APPROVED BY THE COURT AND THE COMMISSION, THE ASSETS SO POSSESSED."  49
STAT. 822, 15 U.S.C. SEC. 79K (E). 

FN18  THE FULL TEXT OF SEC. 24(A) IS AS FOLLOWS: 

"SEC. 24.  (A)  ANY PERSON OR PARTY AGGRIEVED BY AN ORDER ISSUED BY
THE COMMISSION UNDER THIS TITLE MAY OBTAIN A REVIEW OF SUCH ORDER IN
THE CIRCUIT COURT OF APPEALS OF THE UNITED STATES WITHIN ANY CIRCUIT
WHEREIN SUCH PERSON RESIDES OR HAS HIS PRINCIPAL PLACE OF BUSINESS, OR
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, BY
FILING IN SUCH COURT, WITHIN SIXTY DAYS AFTER THE ENTRY OF SUCH ORDER,
A WRITTEN PETITION PRAYING THAT THE ORDER OF THE COMMISSION BE MODIFIED
OR SET ASIDE IN WHOLE OR IN PART.  A COPY OF SUCH PETITION SHALL BE
FORTHWITH SERVED UPON ANY MEMBER OF THE COMMISSION, OR UPON ANY OFFICER
THEREOF DESIGNATED BY THE COMMISSION FOR THAT PURPOSE, AND THEREUPON
THE COMMISSION SHALL CERTIFY AND FILE IN THE COURT A TRANSCRIPT OF THE
RECORD UPON WHICH THE ORDER COMPLAINED OF WAS ENTERED.  UPON THE FILING
OF SUCH TRANSCRIPT SUCH COURT SHALL HAVE EXCLUSIVE JURISDICTION TO
AFFIRM, MODIFY, OR SET ASIDE SUCH ORDER, IN WHOLE OR IN PART.  NO
OBJECTION TO THE ORDER OF THE COMMISSION SHALL BE CONSIDERED BY THE
COURT UNLESS SUCH OBJECTION SHALL HAVE BEEN URGED BEFORE THE COMMISSION
OR UNLESS THERE WERE REASONABLE GROUNDS FOR FAILURE SO TO DO.  THE
FINDINGS OF THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL
EVIDENCE, SHALL BE CONCLUSIVE.  IF APPLICATION IS MADE TO THE COURT FOR
LEAVE TO ADDUCE ADDITIONAL EVIDENCE, AND IT IS SHOWN TO THE
SATISFACTION OF THE COURT THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND
THAT THERE WERE REASONABLE GROUNDS FOR FAILURE TO ADDUCE SUCH EVIDENCE
IN THE PROCEEDING BEFORE THE COMMISSION, THE COURT MAY ORDER SUCH
ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE COMMISSION AND TO BE ADDUCED
UPON THE HEARING IN SUCH MANNER AND UPON SUCH TERMS AND CONDITIONS AS
TO THE COURT MAY SEEM PROPER.  THE COMMISSION MAY MODIFY ITS FINDINGS
AS TO THE FACTS BY REASON OF THE ADDITIONAL EVIDENCE SO TAKEN, AND IT
SHALL FILE WITH THE COURT SUCH MODIFIED OR NEW FINDINGS, WHICH, IF
SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE, AND ITS
RECOMMENDATION, IF ANY, FOR THE MODIFICATION OR SETTING ASIDE OF THE
ORIGINAL ORDER.  THE JUDGMENT AND DECREE OF THE COURT AFFIRMING,
MODIFYING, OR SETTING ASIDE, IN WHOLE OR IN PART, ANY SUCH ORDER OF THE
COMMISSION SHALL BE FINAL, SUBJECT TO REVIEW BY THE SUPREME COURT OF
THE UNITED STATES UPON CERTIORARI OR CERTIFICATION AS PROVIDED IN
28, SECS. 346 AND 347)."  49 STAT. 834, 15 U.S.C. SEC. 79X. 

FN19  S. REP. NO. 621, 74TH CONG., 1ST SESS. 13; 168 F.2D AT 729. 

FN20  79 CONG. REC. 8845: 

"MR. BORAH.  MR. PRESIDENT, I DESIRE TO ASK THE SENATOR FROM MONTANA
A QUESTION. 

"ON PAGE 50, BEGINNING WITH LINE 2, THE BILL PROVIDES AS FOLLOWS: 

"'IN ANY SUCH PROCEEDING A REORGANIZATION PLAN FOR A REGISTERED
HOLDING COMPANY OR ANY SUBSIDIARY COMPANY THEREOF SHALL NOT BECOME
EFFECTIVE UNLESS SUCH PLAN SHALL HAVE BEEN APPROVED BY THE COMMISSION
AFTER OPPORTUNITY FOR HEARING PRIOR TO ITS SUBMISSION TO THE COURT.' 
"I DO NOT EXACTLY UNDERSTAND THAT LANGUAGE.  DOES IT MEAN THAT THE
COURT'S JURISDICTION WITH REFERENCE TO THE REORGANIZATION, OR WHAT
SHALL BE PERMITTED BY DECREE OF THE COURT, IS LIMITED; OR IS IT SIMPLY
RECOMMENDATORY TO THE COURT? 

"MR. WHEELER.  WE DO EXACTLY THE SAME THING AT THE PRESENT TIME, AS I
UNDERSTAND, WITH REFERENCE TO THE INTERSTATE COMMERCE COMMISSION.  A
PLAN FOR THE REORGANIZATION OF A RAILROAD IS SUPPOSED TO BE SUBMITTED
TO THE INTERSTATE COMMERCE COMMISSION FOR ITS APPROVAL BEFORE IT IS
APPROVED BY THE COURT.  WE PUT THIS PROVISION IN HERE IN PRACTICALLY
THE SAME MANNER, AS I RECALL, AS THE EXISTING PROVISION WITH REFERENCE
TO THE INTERSTATE COMMERCE COMMISSION IN THE CASE OF RAILROAD
REORGANIZATIONS. 

     .  .         .         .         . 

"THE SENATOR FROM INDIANA (MR. MINTON) HAS CALLED MY ATTENTION TO THE
FACT THAT THE PROVISION DOES NOT OUST THE JURISDICTION OF THE COURT AT
ALL, BECAUSE THE COURT HAS TO APPROVE THE PLAN EVEN THOUGH THE
COMMISSION APPROVES IT.  IN OTHER WORDS THERE IS REALLY A DOUBLE CHECK
UPON THE PLAN, AND FINAL DETERMINATION RESTS AS IN THE PAST IN THE
COURTS." 

FN21  LAHTI V. NEW ENGLAND POWER ASSN., 160 F.2D 845(C.A. 1ST CIR.,
1947), AFF'G IN RE NEW ENGLAND POWER ASSN., 66 F.SUPP.  378(D. MASS.
1946); MASSACHUSETTS LIFE INS. CO. V. S.E.C., 151 F.2D 424(C.A.8TH
CIR., 1945), AFF'G IN RE LACLEDE GAS LIGHT CO., 57 F.SUPP.  997(E.D.
MO. 1944); IN RE ELECTRIC BOND & SHARE CO., 73 F.SUPP.  426(S.D.N.Y.
1946); IN RE EASTERN MINNESOTA POWER CORP., 74 F.SUPP.  528(D. MINN.
1947); IN RE KINGS COUNTY LIGHTING CO., 72 F.SUPP.  767(E.D.N.Y. 1947),
AFF'D SUB NOM., PUBLIC SERVICE COMMISSION OF N.Y. V. S.E.C., 166 F.2D
784(C.A.2D CIR., 1948); IN RE NEW ENGLAND PUBLIC SERVICE CO., 73
F.SUPP.  452(D. ME. 1947). 

FN22  IN RE COMMUNITY GAS & POWER CO., 168 F.2D 740(C.A. 3D CIR.,
1948), AFF'G 71 F.SUPP.  171(D. DEL. 1947); IN RE NORTH WEST UTILITIES
CO., 76 F.SUPP.  63(D. DEL. 1948); IN RE INTERSTATE POWER CO., 71
F.SUPP.  164(D. DEL. 1947); ACCORD, ILLINOIS IOWA POWER CO. V. NORTH
AMERICAN LIGHT & POWER CO., 49 F.SUPP.  277(D. DEL. 1943); BUT SEE IN
RE STANDARD GAS & ELECTRIC CO., 151 F.2D 326(C.A. 3D CIR., 1945),
REVERSING 59 F.SUPP.  274(D. DEL. 1945). 

FN23  GROUP OF INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318 U.S.
523, 565; NORTHERN PACIFIC R. CO. V. BOYD, 228 U.S. 482; CASE V. LOS
ANGELES LUMBER PRODUCTS CO., 308 U.S. 106; CONSOLIDATED ROCK PRODUCTS
CO. V. DU BOIS, 312 U.S. 510; MARINE PROPERTIES V. MANUFACTURERS TRUST
CO., 317 U.S. 78; ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448; OTIS
& CO. V. S.E.C., 323 U.S. 624, 634. 

FN24  SEE THE APPENDIX TO THIS OPINION, POST, P. 155. 

FN25  MASSACHUSETTS MUTUAL LIFE INSURANCE CO. V. SECURITIES AND
EXCHANGE COMMISSION, 151 F.2D 424, 430.  THE COURT OF APPEALS IN THIS
CASE AGREED THAT CHARTER PROVISIONS WERE NOT DETERMINATIVE, 168 F.2D AT
736.  WHILE THE DISTRICT JUDGE DECLINED TO DECIDE WHETHER THE
INVOLUNTARY LIQUIDATION PREFERENCE APPLIED IN THIS CASE, HE HAS
ELSEWHERE INDICATED HIS AWARENESS THAT CHARTER PROVISIONS DO NOT
CONTROL IN LIQUIDATIONS COMPELLED BY THE ACT.  IN RE CONSOLIDATED
ELECTRIC & GAS CO., 55 F.SUPP.  211, 216; IN RE NORTH CONTINENT
UTILITIES CORP., 54 F.SUPP.  527, 530-531. 

FN26  ENGINEERS' CHARTER PROVIDES THAT PREFERRED SHAREHOLDERS SHALL
RECEIVE $100 PER SHARE, PLUS ACCRUED DIVIDENDS, "IN THE EVENT OF ANY
LIQUIDATION, DISSOLUTION OR WINDING UP OF THIS CORPORATION."  IN OTIS
THE LIQUIDATION PREFERENCE WAS PAYABLE "UPON THE DISSOLUTION OR
LIQUIDATION OF THE CORPORATION, WHETHER VOLUNTARY OR INVOLUNTARY."  323
U.S. AT 630, N. 6. 

FN27  THE CONCLUSION THAT LIQUIDATION COMPELLED BY GOVERNMENTAL EDICT
WAS NOT FORESEEN AT THE TIME ENGINEERS' CHARTER WAS DRAFTED IS
REENFORCED BY A STATEMENT APPEARING IN THE RECORD, MADE BY COUNSEL FOR
ENGINEERS, ONE OF THE DRAFTSMEN OF THE CHARTER, APPARENTLY IN
CONNECTION WITH ANOTHER CASE, THAT A SEC. 11 LIQUIDATION "IS AN
ARBITRARILY AND FORCED STATUTORY TERMINATION OF THE ENTERPRISE, AND IT
HAS NO RELATION WHATSOEVER TO ANY FACTORS WHICH THE PARTIES COULD HAVE
HAD IN MIND WHEN THEY ENTERED THE ENTERPRISE." 

FN28  THE COMMON STOCKHOLDERS CONTEND THAT THE REPEATED REFERENCES IN
THE LEGISLATIVE HISTORY OF THE HOLDING COMPANY ACT TO CONTINENTAL
INSURANCE COMPANY V. UNITED STATES, 259 U.S. 156(S. REP. NO. 621, 74TH
CONG., 1ST SESS. 33; H.R. REP. NO. 1318, 74TH CONG., 1ST SESS. 49-50;
79 CONG. REC. 4607, 8432) "LEAVE NO DOUBT THAT AT LEAST WHEN A GENUINE
LIQUIDATION IS COMPELLED BY THE ACT," CHARTER PROVISIONS WERE INTENDED
TO CONTROL.  BUT THESE CONGRESSIONAL REFERENCES TO THE CONTINENTAL CASE
WERE IN SUPPORT OF PROPOSITIONS OTHER THAN THAT CHARTER LIQUIDATION
PROVISIONS ARE APPLICABLE TO LIQUIDATIONS COMPELLED BY THE ACT.  THE
OTIS OPINION POINTED OUT THAT THE CONTINENTAL CASE "TURNED  ...  ON THE
CHARTER RIGHTS OF THE PREFERRED TO SHARE EQUALLY WITH THE COMMON IN
EARNINGS WHICH HAD BECOME ASSETS,  ...  NOT ON WHETHER A RIGHT TO SHARE
WAS MATURED OR VARIED BY GOVERNMENTAL ACTION."  323 U.S. AT 639.  THE
OPINION PROCEEDS TO REFUTE EXPRESSLY THE CONTENTIONS MADE BY THE COMMON
STOCKHOLDERS HERE:  "WE DO NOT FEEL CONSTRAINED BY (THE CONTINENTAL
CASE'S) DEALING WITH CHARTER RIGHTS AS IN A NORMAL LIQUIDATION TO HOLD
THAT WHERE LIQUIDATION IS ADOPTED AS A MATTER OF ADMINISTRATIVE
ROUTINE, THE PREFERENCES ARE THEREBY MATURED."  IBID. 

FN29  THE OTIS CASE WAS DESCRIBED AS FOLLOWS:  "IN CONSTRUING THE
WORDS 'FAIR AND EQUITABLE' IN A FEDERAL STATUTE OF VERY SIMILAR
PURPOSES, WE HAVE HELD THAT ALTHOUGH THE FULL PRIORITY RULE APPLIES IN
LIQUIDATION OF A SOLVENT HOLDING COMPANY PURSUANT TO A FEDERAL STATUTE,
THE PRIORITY IS SATISFIED BY GIVING EACH CLASS THE FULL ECONOMIC
EQUIVALENT OF WHAT THEY PRESENTLY HOLD, AND THAT, AS A MATTER OF
FEDERAL LAW, LIQUIDATION PREFERENCES PROVIDED BY THE CHARTER DO NOT
APPLY.  WE SAID THAT, ALTHOUGH THE COMPANY WAS IN FACT BEING LIQUIDATED
IN COMPLIANCE WITH AN ADMINISTRATIVE ORDER, THE RIGHTS OF THE
STOCKHOLDERS COULD BE VALUED 'ON THE BASIS OF A GOING BUSINESS AND NOT
AS THOUGH A LIQUIDATION WERE TAKING PLACE.'  CONSEQUENTLY THE
LIQUIDATION PREFERENCES WERE ONLY ONE FACTOR IN VALUATION RATHER THAN
DETERMINATIVE OF AMOUNTS PAYABLE."  334 U.S. AT 199. 

FN30  AMERICAN LAW INSTITUTE, RESTATEMENT, CONTRACTS SEC. 468,
COMMENT ON SUBSECTION (3). 

FN31  THE ANALOGY BETWEEN BONDS AND PREFERRED STOCK, CF. 2 DEWING,
THE FINANCIAL POLICY OF CORPORATIONS 1247, N.R. (4TH ED., 1941), IS
SUBJECT TO OBVIOUS LIMITATIONS.  FOR EXAMPLE, IF THE CLAIMS OF
BONDHOLDERS RATHER THAN PREFERRED STOCKHOLDERS HAD BEEN IN ISSUE IN THE
OTIS CASE, UNITED POWER WOULD HAVE BEEN AN INSOLVENT RATHER THAN A
SOLVENT CORPORATION AND SO SUBJECT TO BANKRUPTCY.  AT LEAST WITH
REFERENCE TO THE ISSUE OF WHETHER AMOUNTS IN EXCESS OF THE FACE VALUE
OF A SECURITY ARE PAYABLE, WE NEED NOT DISTINGUISH BETWEEN TREATMENT TO
BE ACCORDED BONDS AND PREFERRED STOCK.  THE COMMISSION'S TENDENCY HAS
BEEN TO TREAT BOTH THE SAME.  SEE, E.G., THE UNITED LIGHT & POWER CO.,
10 S.E.C. 1215, 1226-1227; CITIES SERVICE CO., HOLDING COMPANY ACT
RELEASE NO. 4944. 

FN32  THE CITATION BY THE OTIS MAJORITY, "COMPARE NEW YORK TRUST CO.
V. SECURITIES & EXCHANGE COMMISSION, 131 F.2D 274; IN RE LACLEDE GAS
LIGHT CO., 57 F.SUPP.  997," IS OF NO ASSISTANCE TO THE COMMON
STOCKHOLDERS HERE, FOR IT IS IN SUPPORT OF AND DIRECTLY FOLLOWING THE
SENTENCE:  "WHERE PRE-EXISTING CONTRACT PROVISIONS EXIST WHICH PRODUCE
RESULTS AT VARIANCE WITH A LEGISLATIVE POLICY WHICH WAS NOT FORESEEABLE
AT THE TIME THE CONTRACT WAS MADE, THEY CANNOT BE PERMITTED TO
OPERATE."  323 U.S. AT 638. 

FN33  AFFIRMING IN RE LACLEDE GAS LIGHT CO., 57 F.SUPP.  997. 

FN34  TWO OTHER DECISIONS IN THE COURTS OF APPEALS, WHICH CITE AND
PURPORT TO FOLLOW THE NEW YORK TRUST CASE, REASON THAT THE PREMIUM IS
PAYABLE ONLY IN THE EVENT OF VOLUNTARY REDEMPTION OF THE BOND, THAT THE
REDEMPTION IS NOT VOLUNTARY, AND THEREFORE THAT THE PREMIUM IS NOT
PAYABLE.  SINCE THIS SYLLOGISM DISPOSES OF EACH CASE WITHOUT REFERENCE
TO THE DOCTRINE OF FRUSTRATION, THE FRUSTRATION RATIONALE OF THE NEW
YORK TRUST CASE IS AN ALTERNATIVE GROUND IN BOTH CASES.  CITY NATIONAL
BANK & TRUST CO. V. S.E.C., 134 F.2D 65; IN RE STANDARD GAS & ELECTRIC
CO., 151 F.2D 326. 

FN35  323 U.S. AT 634.  SEE ALSO THE QUOTED STATEMENT OF THE
COMMISSION'S VIEWS, AS OPPOSED TO THOSE OF COMMISSIONER HEALY, SET
FORTH ID. AT 635, N. 17; HOLDING COMPANY ACT RELEASE NO. 4215, P. 12. 

FN36  THE COURT OF APPEALS TOOK THE COMMISSION'S METHOD TO BE
VALUATION "AS IF THE ACT HAD NEVER BEEN PASSED."  IT CRITICIZED THE
COMMISSION FOR VALUING THE PREFERREDS ON THIS BASIS BUT NOT VALUING THE
COMMON IN THE SAME MANNER.  168 F.2D AT 737-738. 

FN37 THE COURT OF APPEALS THOUGHT THAT, IF THE COMMISSION WISHED TO
VALUE THE SECURITIES "EX THE ACT, LOSSES OF THE SORT REFERRED TO IN
THIS PARAGRAPH MUST BE WEIGHED INTO THE CALCULATION, I.E., SUCH LOSSES
SHOULD BE RETURNED TO THE CREDIT SIDE OF THE ENTERPRISE'S BALANCE SHEET
AS A MATTER OF BOOKKEEPING."  168 F.2D AT 738. 

FN38  IN THE PUGET SOUND REORGANIZATION ENGINEERS RECEIVED AS OF 1943
APPROXIMATELY A 3% INTEREST IN THE NEW COMMON STOCK IN RETURN FOR ITS
OLD 99.3% COMMON STOCK INTEREST.  THE OLD COMMON WAS ESTIMATED TO BE 18
TO 34 YEARS AWAY FROM DIVIDENDS IN THE ABSENCE OF A REORGANIZATION.  13
S.E.C. 226.  AS IN THE OTIS CASE, THE CONTROVERSY WAS OVER THE QUESTION
OF WHETHER ENGINEERS WAS ENTITLED TO ANY PARTICIPATION IN THE NEW
COMPANY, IN VIEW OF THE REMOTE AND CONTINGENT CHARACTER OF ITS EARNINGS
EXPECTATIONS.  ENGINEERS SUBSEQUENTLY SOLD THE INTEREST IT RECEIVED IN
THE REORGANIZATION FOR $764,765. 

THE COURT OF APPEALS' CONCLUSION THAT ENGINEERS LOST THROUGH THE
PUGET SOUND DIVESTMENT IS BASED UPON THE PREMISE THAT ACTUAL EARNINGS
OF THE NEW COMPANY WERE CONSIDERABLY HIGHER DURING 1946 AND THE FIRST
HALF OF 1947 THAN THE ESTIMATED EARNINGS UPON WHICH THE COMMISSION
BASED ITS REORGANIZATION ALLOWANCE TO ENGINEERS.  168 F.2D AT 737,
CITING MOODY'S PUBLIC UTILITY MANUAL (1947) 53, AND SUPP. VOL. 19, AT
1914. 

THE COMMISSION CORRECTLY OBSERVES THAT THIS IS AN OVERSIMPLIFICATION
OF THE COMPLEX PROBLEMS INVOLVED IN THE VALUATION OF ENGINEERS'
INTEREST IN PUGET SOUND AND OF THE RELATIONSHIP BETWEEN THAT INTEREST
IN 1943 AND ITS HYPOTHETICAL VALUE TODAY IF NO RECAPITALIZATION AND
DIVESTMENT HAD OCCURRED.  IT NOTES THAT THE EARNINGS FIGURES TAKEN FROM
MOODY'S FAIL TO REFLECT THE USE OF A MUCH LOWER DEPRECIATION ALLOWANCE
THAT THE COMMISSION THOUGHT APPROPRIATE IN MAKING ITS EARNINGS
ESTIMATE, CAPITAL EXPENDITURES SINCE 1943, AND DIVESTMENT OF CERTAIN
PROPERTIES AFTER PUGET SOUND HAD CEASED TO BE SUBJECT TO THE ACT.  THE
PERIOD TAKEN BY THE COURT OF APPEALS CAN HARDLY BE ASSUMED TO PROVIDE A
RELIABLE AVERAGE EARNINGS FIGURE.  ABSENT THE IMPACT OF THE ACT,
RECAPITALIZATION OF PUGET SOUND WOULD PROBABLY HAVE BEEN NECESSARY IN
THE EXERCISE OF SOUND BUSINESS JUDGMENT, A CONSIDERATION WHICH IMPORTS
NUMEROUS ADDITIONAL UNCERTAINTIES.  FURTHER, THE EVALUATION OF THE
PUGET SOUND DIVESTITURE REQUIRED BY THE COURT OF APPEALS WOULD COMPEL
THE COMMISSION TO ESTIMATE THE EFFECTS OF ENGINEERS' HYPOTHETICAL LACK
OF THE $764,765 RECEIVED FROM THE SALE OF THE SECURITIES RECEIVED IN
THE PUGET RECAPITALIZATION, FUNDS WHICH WERE ACTUALLY USED TO PURCHASE
ADDITIONAL INTERESTS IN OTHER COMPANIES AND TO MAKE PAYMENTS TO
ENGINEERS' PREFERRED STOCKS.  CERTAIN TAX ADVANTAGES DERIVED FROM THE
SALE OF PUGET WOULD HAVE TO BE TAKEN INTO ACCOUNT. 

THE COURT OF APPEALS ALSO CITED THE EL PASO NATURAL GAS COMPANY
DIVESTITURE AS AN EXAMPLE OF A LOSS TO ENGINEERS CAUSED BY THE ACT,
SAYING, "UNDER THIS DIVESTITURE ENGINEERS LOST A PROFIT OF AT LEAST
$4,000,000."  168 F.2D AT 737.  IN 1931 ENGINEERS LOANED EL PASO
$3,500,000 AND RECEIVED IN RETURN $3,500,000 IN BONDS AND AN OPTION TO
PURCHASE 192,119 SHARES OF EL PASO'S COMMON STOCK.  AS A RESULT OF THE
EXERCISE OR ASSIGNMENT OF SOME OF THESE OPTIONS AND THE RESALE IN 1936,
1937 AND 1944 OF STOCK ACQUIRED BY THEIR EXERCISE, ENGINEERS REALIZED A
PROFIT, IN ADDITION TO THE REPAYMENT OF THE LOAN, OF $2,700,000 ON ITS
EL PASO INVESTMENT.  THE STATEMENT THAT THESE TRANSACTIONS INVOLVED A
LOSS OF $4,000,000 TO ENGINEERS IS BASED UPON THE ASSUMPTIONS THAT THE
TIMING OF THE SALES WAS COMPELLED BY SEC. 11 AND NOT BY MANAGERIAL
JUDGMENT, THAT IN THE ABSENCE OF SEC. 11 MANAGEMENT WOULD HAVE SOLD THE
STOCK AT THE VERY PEAK OF THE MARKET, AND UPON OTHER EQUALLY DUBIOUS
PREMISES. 

FN39  ENGINEERS' SYSTEM CONSISTED OF 17 COMPANIES BEFORE THE
COMMISSION BEGAN ITS INTEGRATION PROCEEDINGS.  SEE NOTE 2 AND TEXT,
SUPRA. 

FN40  ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448, 482-483; GROUP
OF INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318 U.S. 523, 565-566;
OTIS & CO. V. SECURITIES AND EXCHANGE COMMISSION, 323 U.S. 624, 639
640. 

FN41  BADGER'S ANALYSIS, AS SUMMARIZED BY THE COMMISSION, IS STATED
IN NOTE 8, SUPRA. 

FN42  SEE TEXT SUPRA, PARAGRAPH FOLLOWING NOTE 8. 

FN43  THE COURT OF APPEALS STATED THAT THE COMMISSION ERRED IN
FAILING TO "GIVE ANY SUBSTANTIAL CONSIDERATION TO THE FUTURE EARNING
POWER OF ENGINEERS AND ITS SUBSIDIARIES WHICH THE SUPREME COURT HAS
HELD IS ONE OF THE FUNDAMENTAL TESTS FOR REORGANIZATION VALUATION." 
168 F.2D AT 736-737.  A PRECISE FINDING AS TO PROSPECTIVE EARNINGS OF A
CONTINUING ENGINEERS WOULD BE THE CONTROLLING SUBSIDIARY FINDING UPON
WHICH A PRECISE FINDING AS TO GOING-CONCERN VALUE "EX THE ACT" WOULD BE
BASED.  SEE GROUP OF INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318
U.S. 523, 540; CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, 312 U.S. 510,
525; 6 COLLIER, BANKRUPTCY 3849-3855(14TH ED., 1947).  BUT WHERE IT IS
CLEAR THAT THE PROSPECTIVE EARNINGS OF THE CORPORATION WOULD BE MORE
THAN ENOUGH TO CONTINUE PAYMENT OF PREFERRED DIVIDENDS AND TO CARRY THE
GOING-CONCERN VALUE, ABSENT CALL PROVISIONS, WELL ABOVE THE CALL PRICE,
THERE IS NO NECESSITY FOR MAKING A PRECISE FORECAST OF FUTURE EARNINGS,
FOR THE CALL PRICE MARKS THE CEILING.  CF. ECKER V. WESTERN PACIFIC R.
CORP., 318 U.S. 448, 479-483.    FN44  THE DISTRICT COURT MADE A
FINDING WITH RESPECT TO BADGER'S CONCLUSION AS TO THE PERMANENCE OF THE
CURRENT YIELD RATE AND CONCLUDED THAT "THE EXTREMELY LOW MONEY RATES
WHICH RESULTED IN BADGER'S FINDING THAT THE PREFERRED STOCKS OF
ENGINEERS HAVE AN 'INVESTMENT VALUE' GREATER THAN $100 PER SHARE,
LARGELY REFLECT ARTIFICIAL FACTORS WHICH ARE CLEARLY SUBJECT TO CHANGES
AT ANY TIME AND MAY WELL BE OF PURELY TRANSITORY CHARACTER."  IT IS
DIFFICULT TO RECONCILE THIS "FINDING" WITH THE FOLLOWING STATEMENT
WHICH APPEARS IN THE COURT'S PUBLISHED OPINION:  "I ACCEPT DR. BADGER'S
VALUES AND, IN THE ABSENCE OF A SHOWING OF CHANGED CIRCUMSTANCES, I
SHALL ASSUME THAT THOSE VALUES ARE APPLICABLE AT THE PRESENT TIME."  71
F.SUPP.  AT 801.  AT ANY RATE, THIS IS PREDOMINATELY A QUESTION OF
FACT, AND THE COMMISSION'S DETERMINATION, SUPPORTED AS IT WAS BY
SUBSTANTIAL EVIDENCE, SHOULD NOT HAVE BEEN DISTURBED, ABSENT
SUPERVENING ECONOMIC DEVELOPMENTS PRIOR TO THE CONSUMMATION OF THE PLAN
WHICH CLEARLY REQUIRED RECONSIDERATION. 

FN45  THE CHANGES IN INTEREST RATES WHICH HAD OCCURRED AT THE TIME OF
THE DECISIONS OF THE DISTRICT COURT AND THE COURT OF APPEALS WERE
MERELY CITED TO INDICATE THAT FUTURE CHANGES MIGHT AFFECT THE ACCURACY
OF BADGER'S PREDICTIONS. 

FN46  THE COURT OF APPEALS STATES THAT THE COMMISSION "MADE NO
FINDING AS TO THE 'VALUE' OF THE COMMON STOCK," AND THAT "THE
COMMISSION ASCRIBED 'INVESTMENT VALUE' TO THE PREFERREDS BUT FAILED TO
MAKE A SIMILAR APPROACH TO THE COMMON."  168 F.2D AT 737.  CENTRAL
ILLINOIS SECURITIES CORPORATION AND CHRISTIAN A. JOHNSON, REPRESENTING
THE COMMON STOCKHOLDERS, COMPLAIN THAT "THE COMMISSION'S DETERMINATION
OF THE EQUITABLE EQUIVALENT OF THE RIGHTS SURRENDERED BY ENGINEERS'
STOCKHOLDERS FAILED UTTERLY TO TAKE ACCOUNT OF THE CORRELATIVE RIGHTS
OF THE PREFERRED AND COMMON." 

FN47  SEE NOTE 38 AND TEXT, SUPRA. 

FN48  THE COMMISSION STATED IN ITS OPINION THAT "ENGINEERS HAS
PRODUCED AN ABUNDANCE OF EVIDENCE SHOWING THAT ONCE IT HAS DISPOSED OF
EL PASO AND GULF, IT WILL HAVE NO REASON TO CONTINUE AS A SEPARATE
CORPORATE ENTITY FOR IT WOULD THEN BE THE PARENT OF A SINGLE OPERATING
COMPANY, VIRGINIA.  IN THAT SITUATION, ENGINEERS ADMITS THAT IT WOULD
BE AN 'ECONOMIC MONSTROSITY' AND ALL PARTICIPANTS IN THIS PROCEEDING
SEEM TO BE IN AGREEMENT WITH THAT CONCLUSION.  THE RECORD DOES NOT
CLEARLY INDICATE WHAT IT WILL COST TO MAINTAIN ENGINEERS AFTER GULF
STATES AND EL PASO HAVE BEEN DIVESTED.  ESTIMATES RANGE FROM $172,000
TO $365,000 A YEAR.  THE COMPANY FREELY ADMITS THAT ENGINEERS COULD IN
NO WAY JUSTIFY ANY SUCH CONTINUING EXPENDITURE.  VIRGINIA IS ABLE TO
UNDERTAKE ITS OWN FINANCING AND SERVICE AND IS LARGE ENOUGH TO STAND
INDEPENDENTLY.  ANY FUNCTIONS ENGINEERS MIGHT PERFORM SHOULD MORE
PROPERLY BE CARRIED OUT BY VIRGINIA'S OWN MANAGEMENT."  HOLDING COMPANY
ACT RELEASE NO. 7041, P. 18. 

FN49  "LEVERAGE" IS THE TERM USED TO DESCRIBE THE ADVANTAGE GAINED BY
JUNIOR INTERESTS THROUGH THE RENTAL OF CAPITAL AT A RATE LOWER THAN THE
RATE OF RETURN WHICH THEY RECEIVE IN THE USE OF THAT BORROWED CAPITAL. 
ASSUMING THAT THE HYPOTHETICAL ENGINEERS COULD HAVE USED TO ADVANTAGE
THE $39,000,000 IN CAPITAL SUPPLIED BY THE PREFERRED STOCKHOLDERS, THE
COMMISSION COULD PROPERLY HAVE FOUND THAT SUCH "LEVERAGE" WAS NOT WORTH
THE RISK THAT EARNINGS MIGHT DROP BELOW THE AMOUNT REQUIRED TO PAY
DIVIDENDS ON THE PREFERRED, THEREBY ENDANGERING THE JUNIOR EQUITY OF
$66,768,148(THE MARKET VALUE OF THE SECURITIES RECEIVED BY THE COMMON
UNDER THE PLAN, AS OF THE DATE OF CONSUMMATION, LESS THE AMOUNT PAID IN
THE EXERCISE OF GULF WARRANTS). 

IN THE LIGHT OF THE FACTS STATED IN THE FOLLOWING QUOTATION FROM THE
COMMISSION'S OPINION, IT IS HIGHLY UNLIKELY THAT THE HYPOTHETICAL
ENGINEERS WOULD HAVE HAD USE FOR THE CAPITAL SUPPLIED BY THE PREFERRED
STOCKHOLDERS: "THE RETIREMENT OF THE PREFERRED STOCK WILL BE OF
IMMEDIATE BENEFIT TO THE COMMON STOCKHOLDERS.  AS INDICATED ABOVE, THE
COMPANY AT THE TIME OF THE HEARINGS HAD ON HAND IDLE TREASURY CASH OF
OVER $14,650,000, WHILE IT IS ESTIMATED THAT THIS SUM WILL REACH
APPROXIMATELY $16,825,000 BY THE END OF 1946.  THESE FUNDS HAVE BEEN
ACCUMULATED THROUGH PROPERTY DISPOSITIONS AND RETAINED EARNINGS.  THE
MANAGEMENT HAS PURSUED A POLICY OF WITHHOLDING DIVIDENDS ON THE COMMON
STOCK UNTIL IT IS SATISFIED THAT THE SYSTEM HAS MADE ALL THE
ADJUSTMENTS THAT WILL BE REQUIRED OF IT UNDER THE HOLDING COMPANY ACT. 
AS A CONSEQUENCE THE COMPANY HAS NOW ACCUMULATED A LARGE AMOUNT OF IDLE
FUNDS WHILE IT CONTINUES TO HAVE OUTSTANDING THREE SUBSTANTIAL ISSUES
OF PREFERRED STOCK HAVING FIXED DIVIDEND REQUIREMENTS.  UNDER THE
CIRCUMSTANCES THE ELIMINATION OF THIS PRIOR CHARGE IS HIGHLY BENEFICIAL
TO THE COMMON."  HOLDING COMPANY ACT RELEASE NO. 7041, P. 32. 

FN50  S. REP. NO. 621, 74TH CONG., 1ST SESS. 11-12; ADDITIONAL VIEWS
BY REPRESENTATIVE EICHER, H.R. REP. NO. 1318, 74TH CONG., 1ST SESS. 46
47; STATEMENT OF HOUSE MANAGERS, H.R. REP. NO. 1903, 74TH CONG., 1ST
SESS. 70-71; COMMITTEE OF PUBLIC UTILITY EXECUTIVES, SUMMARY OF S.
2796, 74TH CONG., 1ST SESS., WITH ANNOTATIONS, JUNE, 1935, 5, 7. 

FN51  SEE NOTE 7, SUPRA. 

FN52  CF. CONTINENTAL INSURANCE CO. V. UNITED STATES, 259 U.S. 156,
IN WHICH THE PRINCIPAL ISSUE WAS WHETHER, WHEN THE CHARTER PROVIDED
THAT PREFERRED AND COMMON SHOULD SHARE EQUALLY ON DISSOLUTION IN THE
ASSETS OF THE CORPORATION, EARNINGS RETAINED IN THE SYSTEMS SHOULD BE
REGARDED AS ASSETS AND SHARED WITH THE PREFERRED IN A DISSOLUTION
FORCED BY THE ANTITRUST LAWS.  IT WAS HELD THAT THESE RETAINED EARNINGS
WERE ASSETS AND SHOULD BE SHARED BY THE PREFERRED. 

FN53  SEE NOTE 38 AND TEXT SUPRA. 

FN54  IN ESCROW IS THE SUM OF $4,000,000, COMPRISED AS FOLLOWS:
$3,204,795, WHICH IS EQUAL TO $5, $10, AND $10 PER SHARE RESPECTIVELY
OF THE THREE SERIES OF PREFERRED; $484,325, WHICH IS AN AMOUNT EQUAL TO
SIMPLE INTEREST FOR THREE YEARS AT THE RATE OF 4.76% ON THE $5
PREFERRED, 5% ON THE $5.50 PREFERRED, AND 5.45% ON THE $6 PREFERRED;
$310,880, WHICH WILL COVER ALL FEES AND OTHER COMPENSATION AND ALL
REMUNERATION OR EXPENSES CLAIMED IN CONNECTION WITH THE PLAN. 

FN55  THE PREFERRED STOCKHOLDERS OBJECT THAT THE COMMISSION FAILED TO
GIVE THEM NOTICE AND AN OPPORTUNITY TO BE HEARD ON THE RECOMMENDATION
THAT AN ESCROW BE ESTABLISHED.  THE ESCROW RECOMMENDATION WAS MADE BY
WAY OF AN AMENDING ORDER, HOLDING COMPANY ACT RELEASE NO. 7190, AND THE
COMMISSION SEEMS TO HAVE INSISTED THROUGHOUT THAT ITS RECOMMENDATION
DID NOT HAVE THE EFFECT OF AMENDING THE PLAN, BUT THAT THE
ESTABLISHMENT OF AN ESCROW WAS WITHIN THE POWER OF THE DISTRICT COURT. 
SEE NOTE 13 SUPRA.  THE DISTRICT COURT, WHICH ORDERED THE CREATION OF
THE ESCROW, AFFORDED THE PREFERRED STOCKHOLDERS A HEARING ON THE
PROPRIETY OF THAT PROVISION AND UPON WHETHER THE PLAN SHOULD BE
CONSUMMATED PRIOR TO A FINAL DETERMINATION BY THE COURT OF LAST RESORT
OF THE AMOUNTS DUE THE PREFERRED STOCK.  APPLICATIONS FOR STAY OF
CONSUMMATION WERE DENIED IN TURN BY THE DISTRICT COURT, BY THE COURT OF
APPEALS AND BY A JUSTICE OF THIS COURT.  THERE WAS NO OCCASION TO HOLD
A HEARING ON THE QUESTION OF WHETHER THE PLAN SHOULD BE CONSUMMATED BY
PAYMENT OF $100 AND THE CREATION OF AN ESCROW AT THE TIME THE
COMMISSION PASSED ON THE PLAN, FOR IT APPROVED THE PLAN'S PROVISION FOR
PAYMENT OF $105 AND $110.  THE NECESSITY OF DECIDING WHETHER THERE
SHOULD BE CONSUMMATION AND AN ESCROW FIRST AROSE IN THE DISTRICT
COURT.  IT WAS PROPER FOR THE COMMISSION, WHEN IT BECAME APPRISED OF
DETERMINED OPPOSITION TO THE PLAN ON THE PART OF CERTAIN COMMON
STOCKHOLDERS, TO RECOMMEND THAT THE PLAN BE CONSUMMATED AND THAT AN
ESCROW BE CREATED TO PROTECT THE RIGHTS OF THE PREFERRED, IN THE
INTEREST OF EXPEDITIOUSLY BRINGING THE REMNANT OF THE ENGINEERS SYSTEM
INTO COMPLIANCE WITH THE ACT, WITHOUT HOLDING A HEARING ON THE
PROPRIETY OF ITS RECOMMENDATION.  IN THE DISTRICT COURT AND IN THE
COURT OF APPEALS, THE PREFERRED STOCKHOLDERS WERE ACCORDED FULL
HEARING. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

                              APPENDIX. 

           SECURITIES AND EXCHANGE COMMISSION'S DEVELOPMENT

             AND APPLICATION OF INVESTMENT VALUE THEORY.* 

*THIS APPENDIX IS MERELY A SUMMARY OF COMMISSION DECISIONS AND DOES
NOT PURPORT TO DECLARE ANY RULINGS OF LAW. 

THE COMMISSION FIRST APPLIED THE INVESTMENT VALUE STANDARD IN A
SERIES OF CASES HOLDING COMMON STOCK ENTITLED TO PARTICIPATE WITH
PREFERRED IN THE NEW SECURITIES GIVEN TO SATISFY CLAIMS IN THE
DISSOLVING CORPORATION, ALTHOUGH IN EACH CASE THE BOOK VALUE OF THE
CORPORATION'S ASSETS WAS EXCEEDED BY THE CHARTER CLAIMS OF THE
PREFERRED.  FN1  THIS APPLICATION OF THE STANDARD WAS APPROVED BY THIS
COURT IN OTIS & CO. V. SECURITIES AND EXCHANGE COMMISSION, 323 U.S.
624.  SATISFACTION OF PREFERRED CLAIMS AT LESS THAN THEIR FACE AMOUNT
BY PAYMENT PARTLY IN CASH AND PARTLY IN NEW SECURITIES HAS ALSO BEEN
APPROVED BY THE COMMISSION.  FN2  IN OTHER CASED HOLDING THAT, IN THE
CIRCUMSTANCES OF THE PARTICULAR CASE, RETIREMENT OF PREFERRED STOCK
HAVING A CALL OR VOLUNTARY LIQUIDATION PRICE IN EXCESS OF THE
INVOLUNTARY LIQUIDATION PRICE BY PAYMENT IN CASH AT THE LATTER PRICE IS
FAIR AND EQUITABLE, THE COMMISSION HAS CONSIDERED A NUMBER OF FACTORS
OTHER THAN CHARTER PROVISIONS.  FN3 

IN A NUMBER OF CONTEMPORANEOUS CASES, THE COMMISSION APPROVED PLANS
WHICH PROVIDED FOR LIQUIDATION OF BONDS BY PAYMENT IN CASH AT THE FACE
AMOUNT OF THE BONDS WITHOUT PREMIUM.  FN4 EVEN IN THE EARLIEST OF THESE
CASES, IN ADDITION TO HOLDING THAT THE INDENTURE PROVISION REQUIRING
PAYMENT OF A PREMIUM IN THE EVENT OF VOLUNTARY CALL WAS INAPPLICABLE,
THE COMMISSION OBSERVED THE ABSENCE OF OTHER LEGAL OR EQUITABLE
CONSIDERATIONS WHICH MIGHT HAVE MADE PAYMENT OF A PREMIUM FAIR AND
EQUITABLE.  FN5  AND IN THE LATER CASES, THE COMMISSION'S OPINIONS
"EMPHASIZED SUCH CIRCUMSTANCES, NOT ARTICULATED IN THE EARLIER CASES,
AS THE INTEREST RATE, MATURITY DATE, AND RISK FACTORS INCIDENT TO THE
PARTICULAR SECURITY WHICH IS TO BE PREPAID AS BEARING UPON THE FAIRNESS
OF THE PROPOSED DISCHARGE OF THE SECURITY."  AMERICAN POWER & LIGHT
CO., HOLDING COMPANY ACT RELEASE NO. 6176, P. 12. 

IN AMERICAN POWER & LIGHT CO., HOLDING COMPANY ACT RELEASE NO. 6176,
THE COMMISSION APPLIED THE INVESTMENT VALUE THEORY TO ALLOW PAYMENT OF
PREMIUMS ON BONDS RETIRED UNDER COMPULSION OF SEC. 11(E).  AFTER
POINTING OUT THE TREND OBSERVED IN THE PRECEDING PARAGRAPH AND
ATTRIBUTING IT TO EXPERIENCE GAINED IN CONSIDERING A LARGE NUMBER OF
CASES, THE COMMISSION HELD THAT THE INVESTMENT VALUE THEORY SHOULD BE
APPLIED WHERE ITS APPLICATION RESULTED IN THE PAYMENT OF THE BONDS AT
PRICES IN EXCESS OF THEIR FACE VALUE.  COMMISSIONER HEALY, WHO HAD
PERSISTENTLY DISSENTED IN THE LINE OF CASES FINALLY APPROVED BY THIS
COURT IN THE OTIS CASE,  FN6  DISSENTED VIGOROUSLY.  HE CONTENDED THAT
THE OTIS CASE SHOULD BE LIMITED TO ITS FACTS AND THAT THE EARLIER CASES
REFUSING TO REQUIRE PAYMENT OF PREMIUMS ON BONDS SHOULD BE TAKEN AS
HOLDING THAT PAYMENT OF BONDS AT THEIR FACE AMOUNT WITHOUT PREMIUM "WAS
FAIR BECAUSE  ...  CONTRACT RIGHTS WERE SATISFIED, NOT BECAUSE THE
DEBENTURES WERE VALUED AND FOUND TO BE WORTH THEIR PRINCIPAL."  ID. AT
46.  FN7  HE THOUGHT IT HIGHLY SIGNIFICANT THAT A CONSISTENT
APPLICATION OF THE INVESTMENT VALUE STANDARD WOULD REQUIRE RETIREMENT
OF BONDS AT LESS THAN THEIR PRINCIPAL AMOUNT, IN CASES IN WHICH THE
BONDS WERE NOT "WORTH THEIR PRINCIPAL," AND THAT THE COMMISSION HAD NOT
SUGGESTED THAT ITS APPROACH SHOULD EXTEND SO FAR.  ID. AT 47-48.  FN8 

LESS THAN ONE YEAR LATER THE COMMISSION MADE A PARALLEL APPLICATION
OF THE INVESTMENT VALUE THEORY TO A CASE INVOLVING THE RETIREMENT OF
NONCALLABLE PREFERRED STOCK, HOLDING UNFAIR A PLAN PROVIDING FOR THE
RETIREMENT OF THAT STOCK BY PAYMENT IN CASH EQUIVALENT TO THE
LIQUIDATION PREFERENCE.  THE UNITED LIGHT AND POWER CO., HOLDING
COMPANY ACT RELEASE NO. 6603.  COMMISSIONER HEALY, WHO DIED NOVEMBER
16, 1946, DISSENTED, STATING FOR THE LAST TIME HIS VIEW THAT THE CLAIM
SHOULD BE PAID AT ITS LIQUIDATION PREFERENCE, I.E., THAT THE CONTRACT
CONTROLLED.  FN9  AFTER THIS DECISION, IN WHICH THE COMMISSION DIVIDED
3-2,  FN10  A REHEARING WAS GRANTED.  WHILE DECISION ON REHEARING WAS
PENDING, THE COMPANY PROPOSED A SUBSTITUTE VOLUNTARY PROPOSAL, WHICH
THE COMMISSION APPROVED.  UNITED LIGHT AND RAILWAYS CO., HOLDING
COMPANY ACT RELEASE NO. 7951. 

THE NEXT APPLICATION OF THE INVESTMENT VALUE THEORY EMPLOYED BY THE
COMMISSION'S MAJORITY WAS MADE IN THIS CASE, DECIDED DECEMBER 5, 1946. 
SINCE THIS DECISION AND THE DECISION OF THE COURT OF APPEALS ON REVIEW,
THE COMMISSION HAS AGAIN APPLIED THE INVESTMENT VALUE THEORY TO REQUIRE
PAYMENT OF PREFERRED STOCK IN CASH AT INVESTMENT VALUES EQUAL TO CALL
PRICES.  PENNSYLVANIA EDISON CO., HOLDING COMPANY ACT RELEASE NO.
8550. 

IN A NUMBER OF CASES THE COMMISSION HAS APPROVED PLANS WHICH PROVIDED
FOR THE PAYMENT OF PREFERRED STOCK AT CALL PRICES, WHERE THERE WAS NO
CONTENTION THAT THE PREMIUM WAS NOT PAYABLE.  FN11  BUT THESE CASES
HAVE NOT BEEN REGARDED AS PRECEDENTS IN CASES IN WHICH THE COMPANY
RESISTS PAYMENT OF THE PREFERRED STOCK OR BONDS IN AMOUNTS IN EXCESS OF
THE FACE VALUE OR INVOLUNTARY LIQUIDATION PRICE.  UNITED LIGHT AND
POWER CO., 10 S.E.C. 1215, 1227. 

FN1  COMMUNITY POWER AND LIGHT CO., 6 S.E.C. 182; FEDERAL WATER
SERVICE CORP., 8 S.E.C. 893; UNITED POWER AND LIGHT CO., 13 S.E.C.
1(THE OTIS CASE); PUGET SOUND POWER & LIGHT CO.$, 13 S.E.C. 226;
SOUTHERN COLORADO POWER CO., HOLDING COMPANY ACT RELEASE NO. 4501;
VIRGINIA PUBLIC SERVICE CO., HOLDING COMPANY ACT RELEASE NO. 4618. 
THESE CASES ARE DISCUSSED IN DODD, THE RELATIVE RIGHTS OF PREFERRED AND
COMMON SHAREHOLDERS IN RECAPITALIZATION PLANS UNDER THE HOLDING COMPANY
ACT, 57 HARV. L. REV. 295.  COMMISSIONER HEALY, WHO CONCURRED IN THE
RESULT IN THE COMMUNITY POWER CASE, DISSENTED IN THE OTHER CASES,
CONTENDING THAT THE CLAIM OF THE PREFERRED WAS MEASURED BY THE CONTRACT
RIGHT.  HIS VIEW OF THE MEANING OF SEC. 11(E) LED HIM TO DISSENT IN
CASES INVOLVING APPLICATIONS OF THE INVESTMENT VALUE RULE WHICH
PRODUCED THE RESULTS REACHED IN THIS CASE.  SEE TEXT AT NOTE 6, INFRA. 
FN2  NEW ENGLAND POWER ASSN., HOLDING COMPANY ACT RELEASE NO. 6470,
66 F.SUPP.  378, AFFIRMED SUB NOM. LAHTI V. NEW ENGLAND POWER ASSN.,
160 F.2D 845. 

FN3  CITIES SERVICE CO., HOLDING COMPANY ACT RELEASE NO. 4944, PP. 16
17; GEORGIA POWER & LIGHT CO., HOLDING COMPANY ACT RELEASE NO. 5568,
PP. 16-17, 20-27. 

FN4  THE UNITED LIGHT AND POWER CO., 10 S.E.C. 1215, 1222, AFFIRMED
SUB NOM. NEW YORK TRUST CO. V. S.E.C., 131 F.2D 274; NORTH AMERICAN
LIGHT & POWER CO., 11 S.E.C. 820, 824, AFFIRMED SUB NOM.  CITY NATIONAL
BANK & TRUST CO. V. S.E.C., 134 F.2D 65; NORTH CONTINENT UTILITIES
CORP., HOLDING COMPANY ACT RELEASE NO. 4686, P. 12, APPROVED AND
ENFORCED, 54 F.SUPP.  527; CONSOLIDATED ELECTRIC & GAS CO., HOLDING
COMPANY ACT RELEASE NO. 4900, P. 7, APPROVED AND ENFORCED, 57 F.SUPP. 
997, AFFIRMED SUB NOM. MASSACHUSETTS MUTUAL LIFE INSURANCE CO. V.
S.E.C., 151 F.2D 424. 

FN5 THE UNITED LIGHT AND POWER CO., 10 S.E.C. 1215, 1222; NORTH
AMERICAN LIGHT & POWER CO., 11 S.E.C. 820, 824. 

FN6  SEE NOTE 1, SUPRA. 

FN7  WHILE CONTENDING THAT THE MAJORITY'S APPROACH WAS NOT CONSISTENT
WITH THE CASES REFUSING TO ALLOW PREMIUMS, HE ADMITTED "THAT A CLOSE
READING OF THE COMMISSION'S OPINIONS IN THOSE CASES DISCLOSES SOME
LANGUAGE WHICH THE INVESTING PUBLIC MAY OR MAY NOT HAVE REALIZED
VAGUELY HERALDED THE PRESENT DOCTRINE."  HOLDING COMPANY ACT RELEASE
NO. 6176 AT P. 47. 

FN8  THE COMMISSION, IN ITS BRIEF IN THE CASE AT BAR, DECLINES TO
PREDICT WHAT IT WOULD DO IF FACED WITH THE PROBLEM SUGGESTED BY
COMMISSIONER HEALY, ASSERTING THAT MUCH WOULD DEPEND ON THE EXACT
NATURE OF THE SECURITY AND THE CIRCUMSTANCES OF THE PARTICULAR CASE. 

FN9  COMMISSIONER HEALY'S POSITION IS EXPLAINED IN THE FOLLOWING
STATEMENT:  "WHEN I SIGNED THE REPORT OF THE NATIONAL POWER POLICY
COMMITTEE TO PRESIDENT ROOSEVELT I UNDERSTOOD THE MUCH QUOTED REFERENCE
TO PRESERVATION OF INVESTMENT VALUES TO REFER TO THE VALUES OF
OPERATING COMPANY SECURITIES IN HOLDING COMPANY PORTFOLIOS.  I DID NOT
THEN AND DO NOT NOW BELIEVE IT WAS INTENDED AS A BASIS FOR DENYING THE
SENIOR SECURITY HOLDERS THEIR FULL PRIORITY RIGHTS OR FOR COMPELLING
COMMON STOCKHOLDERS TO PAY PREMIUMS UPON THE REDEMPTION OR RETIREMENT
OF SENIOR SECURITIES FORCED BY FEDERAL STATUTE."  THE UNITED LIGHT AND
POWER CO., HOLDING COMPANY ACT RELEASE NO. 6603, PP. 43-44. 

FN10  COMMISSIONER CAFFREY THOUGHT THE LIQUIDATION PREFERENCE
APPLICABLE FOR A REASON IRRELEVANT HERE.  SEE EL PASO ELECTRIC CO.,
HOLDING COMPANY ACT RELEASE NO. 5499. 

FN11  E.G., MINNESOTA POWER & LIGHT CO., HOLDING COMPANY ACT RELEASE
NO. 5850; MISSISSIPPI RIVER POWER CO., HOLDING COMPANY ACT RELEASE NO.
5776; THE NORTH AMERICAN CO., HOLDING COMPANY ACT RELEASE NO. 5796. 
..END :



BRINEGAR V. UNITED STATES, 338 U.S. 160 


NO. 12.  ARGUED OCTOBER 18-19, 1948.  - DECIDED JUNE 27, 1949.  - 165
F.2D 512, AFFIRMED. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT FOR A VIOLATION
OF THE LIQUOR ENFORCEMENT ACT OF 1936, ON CHARGES OF TRANSPORTING
INTOXICATING LIQUOR INTO OKLAHOMA CONTRARY TO THE LAWS OF THAT STATE. 
HE CHALLENGED THE VALIDITY OF HIS CONVICTION BECAUSE OF THE USE IN
EVIDENCE AGAINST HIM OF LIQUOR SEIZED IN A SEARCH OF HIS AUTOMOBILE
WITHOUT A WARRANT AND ALLEGEDLY IN VIOLATION OF THE FOURTH AMENDMENT. 
AT THE HEARING ON PETITIONER'S MOTION TO SUPPRESS THIS EVIDENCE, IT
APPEARED THAT ONE OF THE FEDERAL AGENTS WHO MADE THE SEARCH AND SEIZURE
HAD ARRESTED PETITIONER FIVE MONTHS PREVIOUSLY FOR ILLEGALLY
TRANSPORTING LIQUOR; THAT HE HAD TWICE SEEN PETITIONER LOADING LIQUOR
INTO A CAR OR TRUCK IN MISSOURI, WHERE THE SALE OF LIQUOR WAS LEGAL;
AND THAT HE KNEW PETITIONER HAD A REPUTATION FOR HAULING LIQUOR.  THIS
OFFICER, ACCOMPANIED BY ANOTHER, RECOGNIZED PETITIONER AND HIS CAR,
WHICH APPEARED TO BE HEAVILY LOADED, GOING WEST IN OKLAHOMA NOT FAR
FROM THE MISSOURI LINE.  THEY GAVE CHASE, OVERTOOK PETITIONER, AND
FORCED HIS CAR TO THE SIDE OF THE ROAD.  UPON INTERROGATION, PETITIONER
ADMITTED THAT HE HAD TWELVE CASES OF LIQUOR IN HIS CAR, WHEREUPON THE
OFFICERS SEARCHED THE CAR, SEIZED THE LIQUOR AND ARRESTED PETITIONER. 
HELD: 

1.  THE FACTS TAKING PLACE BEFORE PETITIONER MADE THE INCRIMINATING
STATEMENTS WERE SUFFICIENT TO SHOW PROBABLE CAUSE FOR THE SEARCH, AND
THE EVIDENCE SEIZED WAS ADMISSIBLE AGAINST PETITIONER AT THE TRIAL. 
CARROLL V. UNITED STATES, 267 U.S. 132, FOLLOWED.  PP. 165-171. 

2.  THE OFFICER'S KNOWLEDGE THAT PETITIONER WAS ENGAGING IN ILLICIT
LIQUOR-RUNNING WAS NOT BASED WHOLLY OR LARGELY ON SURMISE OR HEARSAY;
THE FACTS DERIVED FROM HIS PERSONAL OBSERVATION WERE SUFFICIENT IN
THEMSELVES, WITHOUT THE HEARSAY CONCERNING GENERAL REPUTATION, TO
SUSTAIN HIS CONCLUSION CONCERNING THE ILLEGAL CHARACTER OF PETITIONER'S
OPERATIONS.  P. 172. 

3.  IT WAS NOT IMPROPER TO ADMIT AS EVIDENCE ON THE ISSUE OF PROBABLE
CAUSE THE FACT THAT THE OFFICER HAD ARRESTED THE PETITIONER SEVERAL
MONTHS BEFORE FOR ILLEGAL TRANSPORTATION OF LIQUOR, ALTHOUGH THE
IDENTICAL EVIDENCE WAS PROPERLY EXCLUDED AT THE TRIAL ON THE ISSUE OF
GUILT.  PP. 172-174. 

4.  PROBABLE CAUSE EXISTS WHERE THE FACTS AND CIRCUMSTANCES WITHIN
THE OFFICERS' KNOWLEDGE, AND OF WHICH THEY HAVE REASONABLY TRUSTWORTHY
INFORMATION, ARE SUFFICIENT IN THEMSELVES TO WARRANT A BELIEF BY A MAN
OF REASONABLE CAUTION THAT A CRIME IS BEING COMMITTED.  PP. 175-176. 

BRINEGAR V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PETITIONER WAS CONVICTED IN THE FEDERAL DISTRICT COURT FOR A
VIOLATION OF THE LIQUOR ENFORCEMENT ACT.  THE COURT OF APPEALS
AFFIRMED.  165 F.2D 512.  THIS COURT GRANTED CERTIORARI.  333 U.S.
841.  AFFIRMED, P. 178. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

BRINEGAR WAS CONVICTED OF IMPORTING INTOXICATING LIQUOR INTO OKLAHOMA
FROM MISSOURI IN VIOLATION OF THE FEDERAL STATUTE WHICH FORBIDS SUCH
IMPORTATION CONTRARY TO THE LAWS OF ANY STATE.  FN1  HIS CONVICTION WAS
BASED IN PART ON THE USE IN EVIDENCE AGAINST HIM OF LIQUOR SEIZED FROM
HIS AUTOMOBILE IN THE COURSE OF THE ALLEGED UNLAWFUL IMPORTATION. 

PRIOR TO THE TRIAL BRINEGAR MOVED TO SUPPRESS THIS EVIDENCE AS HAVING
BEEN SECURED THROUGH AN UNLAWFUL SEARCH AND SEIZURE.  FN2  THE MOTION
WAS DENIED, AS WAS A RENEWAL OF THE OBJECTION AT THE TRIAL. 

THE COURT OF APPEALS AFFIRMED THE CONVICTION, 165 F.2D 512, AND
CERTIORARI WAS SOUGHT SOLELY ON THE GROUND THAT THE SEARCH AND SEIZURE
CONTRAVENED THE FOURTH AMENDMENT AND THEREFORE THE USE OF THE LIQUOR IN
EVIDENCE VITIATED THE CONVICTION.  WE GRANTED THE WRIT TO DETERMINE
THIS QUESTION.  333 U.S. 841. 

THE FACTS ARE SUBSTANTIALLY UNDISPUTED.  AT ABOUT SIX O'CLOCK ON THE
EVENING OF MARCH 3, 1947, MALSED, AN INVESTIGATOR OF THE ALCOHOL TAX
UNIT, AND CREEHAN, A SPECIAL INVESTIGATOR, WERE PARKED IN A CAR BESIDE
A HIGHWAY NEAR THE QUAPAW BRIDGE IN NORTHEASTERN OKLAHOMA.  THE POINT
WAS ABOUT FIVE MILES WEST OF THE MISSOURI-OKLAHOMA LINE.  BRINEGAR
DROVE PAST HEADED WEST IN HIS FORD COUPE.  MALSED HAD ARRESTED HIM
ABOUT FIVE MONTHS EARLIER FOR ILLEGALLY TRANSPORTING LIQUOR; HAD SEEN
HIM LOADING LIQUOR INTO A CAR OR TRUCK IN JOPLIN, MISSOURI, ON AT LEAST
TWO OCCASIONS DURING THE PRECEDING SIX MONTHS; AND KNEW HIM TO HAVE A
REPUTATION FOR HAULING LIQUOR.  AS BRINEGAR PASSED, MALSED RECOGNIZED
BOTH HIM AND THE FORD.  HE TOLD CREEHAN, WHO WAS DRIVING THE OFFICERS'
CAR, THAT BRINEGAR WAS THE DRIVER OF THE PASSING CAR.  BOTH AGENTS
LATER TESTIFIED THAT THE CAR, BUT NOT ESPECIALLY ITS REAR END, APPEARED
TO BE "HEAVILY LOADED" AND "WEIGHTED WITH SOMETHING."  BRINEGAR
INCREASED HIS SPEED AS HE PASSED THE OFFICERS.  THEY GAVE CHASE.  AFTER
PURSUING HIM FOR ABOUT A MILE AT TOP SPEED, THEY GAINED ON HIM AS HIS
CAR SKIDDED ON A CURVE, SOUNDED THEIR SIREN, OVERTOOK HIM, AND CROWDED
HIS CAR TO THE SIDE OF THE ROAD BY PULLING ACROSS IN FRONT OF IT.  THE
HIGHWAY WAS ONE LEADING FROM JOPLIN, MISSOURI, TOWARD VINITA, OKLAHOMA,
BRINEGAR'S HOME. 

AS THE AGENTS GOT OUT OF THEIR CAR AND WALKED BACK TOWARD PETITIONER,
MALSED SAID, "HELLO, BRINEGAR, HOW MUCH LIQUOR HAVE YOU GOT IN THE
CAR?"  OR "HOW MUCH LIQUOR HAVE YOU GOT IN THE CAR THIS TIME?" 
PETITIONER REPLIED, "NOT TOO MUCH," OR "NOT SO MUCH."  AFTER FURTHER
QUESTIONING HE ADMITTED THAT HE HAD TWELVE CASES IN THE CAR.  MALSED
TESTIFIED THAT ONE CASE, WHICH WAS ON THE FRONT SEAT, WAS VISIBLE FROM
OUTSIDE THE CAR, BUT PETITIONER TESTIFIED THAT IT WAS COVERED BY A LAP
ROBE.  TWELVE MORE CASES WERE FOUND UNDER AND BEHIND THE FRONT SEAT. 
THE AGENTS THEN PLACED BRINEGAR UNDER ARREST AND SEIZED THE LIQUOR. 

THE DISTRICT JUDGE, AFTER A HEARING ON THE MOTION TO SUPPRESS AT
WHICH THE FACTS STATED ABOVE APPEARED IN EVIDENCE, WAS OF THE OPINION
THAT "THE MERE FACT THAT THE AGENTS KNEW THAT THIS DEFENDANT WAS
ENGAGED IN HAULING WHISKEY, EVEN COUPLED WITH THE STATEMENT THAT THE
CAR APPEARED TO BE WEIGHTED, WOULD NOT BE PROBABLE CAUSE FOR THE SEARCH
OF THIS CAR."  THEREFORE, HE THOUGHT, THERE WAS NO PROBABLE CAUSE WHEN
THE AGENTS BEGAN THE CHASE.  HE HELD, HOWEVER, THAT THE VOLUNTARY
ADMISSION MADE BY PETITIONER AFTER HIS CAR HAD BEEN STOPPED CONSTITUTED
PROBABLE CAUSE FOR A SEARCH, REGARDLESS OF THE LEGALITY OF THE ARREST
AND DETENTION, AND THAT THEREFORE THE EVIDENCE WAS ADMISSIBLE.  AT THE
TRIAL, AS HAS BEEN SAID, THE COURT OVERRULED PETITIONER'S RENEWAL OF
THE OBJECTION. 

THE COURT OF APPEALS, ONE JUDGE DISSENTING, TOOK ESSENTIALLY THE VIEW
HELD BY THE DISTRICT COURT.  THE DISSENTING JUDGE THOUGHT THAT THE
SEARCH WAS UNLAWFUL AND THEREFORE STATEMENTS MADE DURING ITS COURSE
COULD NOT JUSTIFY THE SEARCH. 

THE CRUCIAL QUESTION IS WHETHER THERE WAS PROBABLE CAUSE FOR
BRINEGAR'S ARREST, IN THE LIGHT OF PRIOR ADJUDICATIONS ON THIS PROBLEM,
MORE PARTICULARLY CARROLL V. UNITED STATES, 267 U.S. 132, WHICH ON ITS
FACE MOST CLOSELY APPROXIMATES THE SITUATION PRESENTED HERE.  FN3 

THE CARROLL DECISION HELD THAT, UNDER THE FOURTH AMENDMENT, A VALID
SEARCH OF A VEHICLE MOVING ON A PUBLIC HIGHWAY MAY BE HAD WITHOUT A
WARRANT, BUT ONLY IF PROBABLE CAUSE FOR THE SEARCH EXISTS.  FN4  THE
COURT THEN WENT ON TO RULE THAT THE FACTS PRESENTED AMOUNTED TO
PROBABLE CAUSE FOR THE SEARCH OF THE AUTOMOBILE THERE INVOLVED.  267
U.S. 132, 160. 

IN THE CARROLL CASE THREE FEDERAL PROHIBITION AGENTS AND A STATE
OFFICER STOPPED AND SEARCHED THE DEFENDANTS' CAR ON A HIGHWAY LEADING
FROM DETROIT TO GRAND RAPIDS, MICHIGAN, AND SEIZED A QUANTITY OF LIQUOR
DISCOVERED IN THE SEARCH.  ABOUT THREE MONTHS BEFORE THE SEARCH, THE
TWO DEFENDANTS AND ANOTHER MAN CALLED ON TWO OF THE AGENTS AT AN
APARTMENT IN GRAND RAPIDS AND, UNAWARE THAT THEY WERE DEALING WITH
FEDERAL AGENTS, AGREED TO SELL ONE OF THE AGENTS THREE CASES OF
LIQUOR.  BOTH AGENTS NOTICED THE OLDSMOBILE ROADSTER IN WHICH THE THREE
MEN CAME TO THE APARTMENT AND ITS LICENSE NUMBER.  PRESUMABLY BECAUSE
THE OFFICIAL CAPACITY OF THE PROPOSED PURCHASER WAS SUSPECTED BY THE
DEFENDANTS, THE LIQUOR WAS NEVER DELIVERED. 

ABOUT A WEEK LATER THE SAME TWO AGENTS, WHILE PATROLLING THE ROAD
BETWEEN GRAND RAPIDS AND DETROIT ON THE LOOKOUT FOR VIOLATIONS OF THE
NATIONAL PROHIBITION ACT, WERE PASSED BY THE DEFENDANTS, WHO WERE
PROCEEDING IN A DIRECTION FROM GRAND RAPIDS TOWARD DETROIT IN THE SAME
OLDSMOBILE ROADSTER.  THE AGENTS FOLLOWED THE DEFENDANTS FOR SOME
DISTANCE BUT LOST TRACE OF THEM.  STILL LATER, ON THE OCCASION OF THE
SEARCH, WHILE THE OFFICERS WERE PATROLLING THE SAME HIGHWAY, THEY MET
AND PASSED THE DEFENDANTS, WHO WERE IN THE SAME ROADSTER, GOING IN A
DIRECTION FROM DETROIT TOWARD GRAND RAPIDS.  RECOGNIZING THE
DEFENDANTS, THE AGENTS TURNED AROUND, PURSUED THEM, STOPPED THEM ABOUT
SIXTEEN MILES OUTSIDE GRAND RAPIDS, SEARCHED THEIR CAR AND SEIZED THE
LIQUOR IT CARRIED. 

THIS COURT RULED THAT THE INFORMATION HELD BY THE AGENTS, TOGETHER
WITH THE JUDICIALLY NOTICED FACT THAT DETROIT WAS "ONE OF THE MOST
ACTIVE CENTERS FOR INTRODUCING ILLEGALLY INTO THIS COUNTRY SPIRITUOUS
LIQUORS FOR DISTRIBUTION INTO THE INTERIOR" (267 U.S. AT 160),
CONSTITUTED PROBABLE CAUSE FOR THE SEARCH. 

                                  I. 

OBVIOUSLY THE BASIC FACTS HELD TO CONSTITUTE PROBABLE CAUSE IN THE
CARROLL CASE WERE VERY SIMILAR TO THE BASIC FACTS HERE.  IN EACH CASE
THE SEARCH WAS OF AN AUTOMOBILE MOVING ON A PUBLIC HIGHWAY AND WAS MADE
WITHOUT A WARRANT BY FEDERAL OFFICERS CHARGED WITH ENFORCING FEDERAL
STATUTES OUTLAWING THE TRANSPORTATION OF INTOXICATING LIQUORS (EXCEPT
UNDER CONDITIONS NOT COMPLIED WITH).  FN5  IN EACH INSTANCE THE
OFFICERS WERE PATROLLING THE HIGHWAY IN THE DISCHARGE OF THEIR DUTY. 
AND IN EACH BEFORE STOPPING THE CAR OR STARTING TO PURSUE IT THEY
RECOGNIZED BOTH THE DRIVER AND THE CAR, FROM RECENT PERSONAL CONTACT
AND OBSERVATION, AS HAVING BEEN LATELY ENGAGED IN ILLICIT LIQUOR
DEALINGS.  FN6  FINALLY, EACH DRIVER WAS PROCEEDING IN HIS IDENTIFIED
CAR IN A DIRECTION FROM A KNOWN SOURCE OF LIQUOR SUPPLY TOWARD A
PROBABLE ILLEGAL MARKET, UNDER CIRCUMSTANCES INDICATING NO OTHER
PROBABLE PURPOSE THAN TO CARRY ON HIS ILLEGAL ADVENTURE.  FN7 

THESE ARE THE ULTIMATE FACTS.  NECESSARILY THE CONCRETE, SUBORDINATE
FACTS ON WHICH THEY WERE GROUNDED IN THE TWO CASES DIFFERED SOMEWHAT IN
DETAIL.  THE MORE IMPORTANT OF THE VARIATIONS IN DETAILS OF THE PROOF
ARE AS FOLLOWS: 

IN CARROLL THE AGENT'S KNOWLEDGE OF THE PRIMARY AND ULTIMATE FACT
THAT THE ACCUSED WERE ENGAGED IN LIQUOR RUNNING WAS DERIVED FROM THE
DEFENDANTS' OFFER TO SELL LIQUOR TO THE AGENTS SOME THREE MONTHS PRIOR
TO THE SEARCH, WHILE HERE THAT KNOWLEDGE WAS DERIVED LARGELY FROM
MALSED'S PERSONAL OBSERVATION, REINFORCED BY HEARSAY; THE OFFICERS WHEN
THEY BARGAINED FOR THE LIQUOR IN CARROLL SAW THE NUMBER OF THE
DEFENDANTS' CAR, WHEREAS NO SUCH FACT IS SHOWN IN THIS RECORD; AND IN
CARROLL THE COURT TOOK JUDICIAL NOTICE THAT DETROIT WAS ON THE
INTERNATIONAL BOUNDARY AND AN ACTIVE CENTER FOR ILLEGAL IMPORTATION OF
SPIRITUOUS LIQUORS FOR DISTRIBUTION INTO THE INTERIOR, WHILE IN THIS
CASE THE FACTS THAT JOPLIN, MISSOURI, WAS A READY SOURCE OF SUPPLY FOR
LIQUOR AND OKLAHOMA A PLACE OF LIKELY ILLEGAL MARKET WERE KNOWN TO THE
AGENT MALSED FROM HIS PERSONAL OBSERVATION AND EXPERIENCE AS WELL AS
FROM FACTS OF COMMON KNOWLEDGE. 

TREATING FIRST THE TWO LATTER AND LESS IMPORTANT MATTERS, IN VIEW OF
THE POSITIVE AND UNDISPUTED EVIDENCE CONCERNING MALSED'S IDENTIFICATION
OF BRINEGAR'S FORD, WE THINK NO SIGNIFICANCE WHATEVER ATTACHES, FOR
PURPOSES OF DISTINGUISHING THE CASES, TO THE FACT THAT IN THE CARROLL
CASE THE OFFICERS SAW AND RECALLED THE LICENSE NUMBER OF THE OFFENDING
CAR WHILE THIS RECORD DISCLOSES NO LIKE RECOLLECTION. 

LIKEWISE IT IS IMPOSSIBLE TO DISTINGUISH THE CARROLL CASE WITH
REFERENCE TO THE PROOF RELATING TO THE SOURCE OF SUPPLY, THE PLACE OF
PROBABLE DESTINATION AND ILLEGAL MARKET, AND CONSEQUENTLY THE
PROBABILITY THAT THE KNOWN LIQUOR OPERATORS WERE USING THE CONNECTING
HIGHWAY FOR THE PURPOSES OF THEIR UNLAWFUL BUSINESS. 

THERE WERE OF COURSE SOME LEGAL AS WELL AS SOME FACTUAL DIFFERENCES
IN THE TWO SITUATIONS.  UNDER THE STATUTE IN REVIEW IN CARROLL THE
WHOLE NATION WAS LEGALLY DRY.  NOT ONLY THE MANUFACTURE, BUT THE
IMPORTATION, TRANSPORTATION AND SALE OF INTOXICATING LIQUORS WERE
PROHIBITED THROUGHOUT THE COUNTRY.  UNDER THE STATUTE NOW IN QUESTION
ONLY THE IMPORTATION OF SUCH LIQUORS CONTRARY TO THE LAW OF THE STATE
INTO WHICH THEY ARE BROUGHT AND IN WHICH THEY WERE SEIZED IS
FORBIDDEN. 

IN THE CARROLL CASE THE COURT JUDICIALLY NOTICED THAT DETROIT WAS
LOCATED ON THE INTERNATIONAL BOUNDARY WITH CANADA AND HAD BECOME AN
ACTIVE CENTER FOR ILLEGALLY BRINGING LIQUOR INTO THE COUNTRY FOR
DISTRIBUTION INTO THE INTERIOR.  THIS WAS PERTINENT IN CONNECTION WITH
OTHER CIRCUMSTANCES, FOR SHOWING THE PROBABILITY UNDER WHICH THE AGENTS
ACTED THAT USE OF THE HIGHWAY CONNECTING DETROIT AND GRAND RAPIDS BY
THE KNOWN OPERATORS IN LIQUOR WAS FOR THE PURPOSE OF CARRYING ON THEIR
UNLAWFUL TRAFFIC. 

IN THIS CASE, THE RECORD SHOWS THAT BRINEGAR HAD USED JOPLIN,
MISSOURI, TO MALSED'S PERSONAL KNOWLEDGE DERIVED FROM DIRECT
OBSERVATION, NOT MERELY FROM HEARSAY AS SEEMS TO BE SUGGESTED, AS A
SOURCE OF SUPPLY ON OTHER OCCASIONS WITHIN THE PRECEDING SIX MONTHS. 
IT ALSO DISCLOSES THAT BRINEGAR'S HOME WAS IN VINITA, OKLAHOMA, AND
THAT BRINEGAR WHEN APPREHENDED WAS TRAVELING IN A DIRECTION LEADING
FROM JOPLIN TO VINITA, AT A POINT ABOUT FOUR OR FIVE MILES WEST OF THE
MISSOURI-OKLAHOMA LINE. 

JOPLIN, LIKE DETROIT IN THE CARROLL CASE, WAS A READY SOURCE OF
SUPPLY.  BUT UNLIKE DETROIT IT WAS NOT AN ILLEGAL SOURCE.  SO FAR AS
APPEARS, BRINEGAR'S PURCHASES THERE WERE ENTIRELY LEGAL.  AND SO, WE
MAY ASSUME FOR PRESENT PURPOSES, WAS HIS TRANSPORTATION OF THE LIQUOR
IN MISSOURI, UNTIL HE REACHED AND CROSSED THE STATE LINE INTO
OKLAHOMA. 

THIS DIFFERENCE, HOWEVER, IS INSUBSTANTIAL.  FOR THE IMPORTANT THING
HERE IS NOT WHETHER JOPLIN WAS AN ILLEGAL SOURCE OF SUPPLY; IT IS
RATHER THAT JOPLIN WAS A READY, CONVENIENT AND PROBABLE ONE FOR PERSONS
DISPOSED TO VIOLATE THE OKLAHOMA AND FEDERAL STATUTES.  THAT FACT WAS
DEMONSTRATED FULLY, NOT ONLY BY THE GEOGRAPHIC FACTS, BUT BY MALSED'S
DIRECT AND UNDISPUTED TESTIMONY OF HIS PERSONAL OBSERVATION OF
BRINEGAR'S USE OF LIQUOR-DISPENSING ESTABLISHMENTS IN JOPLIN FOR
PROCURING HIS WHISKEY.  SUCH DIRECT EVIDENCE WAS LACKING IN CARROLL AS
TO DETROIT, AND FOR THAT REASON THE COURT RESORTED TO JUDICIAL NOTICE
OF THE COMMONLY KNOWN FACTS TO SUPPLY THAT DEFICIENCY.  MALSED'S DIRECT
TESTIMONY, BASED ON HIS PERSONAL OBSERVATION, DISPENSED WITH THAT
NECESSITY IN THIS CASE. 

THE SITUATION RELATING TO THE PROBABLE PLACE OF MARKET, AS BEARING ON
THE PROBABILITY OF UNLAWFUL IMPORTATION, IS SOMEWHAT DIFFERENT. 
BROADLY ON THE FACTS THIS MAY WELL HAVE BEEN TAKEN TO BE THE STATE OF
OKLAHOMA AS A WHOLE OR ITS POPULOUS NORTHEASTERN REGION.  FROM THE
FACTS OF RECORD WE KNOW, AS THE AGENTS KNEW, THAT OKLAHOMA WAS A "DRY"
STATE.  AT THE TIME OF THE SEARCH, ITS LAW FORBADE THE IMPORTATION OF
INTOXICATING LIQUORS FROM OTHER STATES, EXCEPT UNDER A PERMIT NOT
GENERALLY PROCURABLE N8 AND WHICH THERE IS NO PRETENSE BRINEGAR HAD
SECURED OR ATTEMPTED TO SECURE.  THIS FACT, TAKEN IN CONNECTION WITH
THE KNOWN "WET" STATUS OF MISSOURI AND THE LOCATION OF JOPLIN CLOSE TO
THE OKLAHOMA LINE, AFFORDS A VERY NATURAL SITUATION FOR PERSONS
INCLINED TO VIOLATE THE OKLAHOMA AND FEDERAL STATUTES TO PLY THEIR
TRADE.  THE PROOF THEREFORE CONCERNING THE SOURCE OF SUPPLY, THE PLACE
OF PROBABLE DESTINATION AND ILLEGAL MARKET, AND HENCE THE PROBABILITY
THAT BRINEGAR WAS USING THE HIGHWAY FOR THE FORBIDDEN TRANSPORTATION,
WAS CERTAINLY NO LESS STRONG THAN THE SHOWING IN THESE RESPECTS IN THE
CARROLL CASE.  FN9    FINALLY, AS FOR THE MOST IMPORTANT POTENTIAL
DISTINCTION, NAMELY, THAT CONCERNING THE PRIMARY AND ULTIMATE FACT THAT
THE PETITIONER WAS ENGAGING IN LIQUOR RUNNING, MALSED'S PERSONAL
OBSERVATION OF BRINEGAR'S RECENT ACTIVITIES ESTABLISHED THAT HE WAS SO
ENGAGED QUITE AS EFFECTIVELY AS DID THE AGENT'S PRIOR BARGAINING WITH
THE DEFENDANTS IN THE CARROLL CASE.  HE SAW BRINEGAR LOADING LIQUOR, IN
LARGER QUANTITIES THAN WOULD BE NORMAL FOR PERSONAL CONSUMPTION, INTO A
CAR OR A TRUCK IN JOPLIN ON OTHER OCCASIONS DURING THE SIX MONTHS PRIOR
TO THE SEARCH.  HE SAW THE CAR BRINEGAR WAS USING IN THIS CASE IN USE
BY HIM AT LEAST ONCE IN JOPLIN WITHIN THAT PERIOD AND FOLLOWED IT.  AND
SEVERAL MONTHS PRIOR TO THE SEARCH HE HAD ARRESTED BRINEGAR FOR
UNLAWFUL TRANSPORTATION OF LIQUOR AND THIS ARREST HAD RESULTED IN AN
INDICTMENT WHICH WAS PENDING AT THE TIME OF THIS TRIAL.  MOREOVER
MALSED INSTANTLY RECOGNIZED BRINEGAR'S FORD COUPE AND BRINEGAR AS THE
DRIVER WHEN HE PASSED THE PARKED POLICE CAR.  AND AT THAT TIME BRINEGAR
WAS MOVING IN A DIRECTION FROM JOPLIN TOWARD VINITA ONLY A SHORT
DISTANCE INSIDE OKLAHOMA FROM THE STATE LINE. 

ALL THESE FACTS ARE UNDISPUTED.  WHOLLY APART FROM MALSED'S KNOWLEDGE
THAT BRINEGAR BORE THE GENERAL REPUTATION OF BEING ENGAGED IN LIQUOR
RUNNING, THEY CONSTITUTE POSITIVE AND CONVINCING EVIDENCE THAT BRINEGAR
WAS ENGAGED IN THAT ACTIVITY, NO LESS CONVINCING THAN THE EVIDENCE IN
CARROLL THAT THE DEFENDANTS HAD OFFERED TO SELL LIQUOR TO THE
OFFICERS.  THE EVIDENCE HERE IS UNDISPUTED, IS ADMISSIBLE ON THE ISSUE
OF PROBABLE CAUSE, AND CLEARLY ESTABLISHES THAT THE AGENT HAD GOOD
GROUND FOR BELIEVING THAT BRINEGAR WAS ENGAGED REGULARLY THROUGHOUT THE
PERIOD IN ILLICIT LIQUOR RUNNING AND DEALING. 

NOTWITHSTANDING THE VARIATIONS IN DETAIL, THEREFORE, WE THINK THE
PROOF IN THIS CASE FURNISHES SUPPORT QUITE AS STRONG AS THAT MADE IN
THE CARROLL CASE, INDEED STRONGER IN SOME RESPECTS, TO SUSTAIN THE
ULTIMATE FACTS THERE HELD IN THE AGGREGATE TO CONSTITUTE PROBABLE CAUSE
FOR A SEARCH IDENTICAL IN ALL SUBSTANTIAL AND MATERIAL RESPECTS WITH
THE ONE MADE HERE.  NOTHING IN THE VARIATIONS OF DETAIL AFFORDS A
SUBSTANTIAL BASIS FOR UNDERMINING HERE ANY OF THE ULTIMATE FACTS HELD
TO BE SUFFICIENT IN CARROLL OR FOR DISTINGUISHING THE CASES.  EACH OF
THE ULTIMATE FACTS FOUND IN CARROLL TO CONSTITUTE PROBABLE CAUSE, WHEN
TAKEN TOGETHER, IS PRESENT IN THIS CASE AND IS FULLY SUBSTANTIATED BY
THE PROOF.  ACCORDINGLY THE CARROLL DECISION MUST BE TAKEN TO CONTROL
THIS SITUATION, UNLESS IT IS NOW TO BE OVERRULED. 

THIS IS TRUE, ALTHOUGH THE TRIAL COURT AND THE COURT OF APPEALS,
INCLUDING THE DISSENTING JUDGE, WERE OF THE OPINION, AS STATED BY THE
LATTER COURT, "THAT THE FACTS WITHIN THE KNOWLEDGE OF THE INVESTIGATORS
AND OF WHICH THEY HAD REASONABLE TRUSTWORTHY INFORMATION PRIOR TO THE
TIME THE INCRIMINATING STATEMENTS WERE MADE BY BRINEGAR WERE NOT
SUFFICIENT TO LEAD A REASONABLY DISCREET AND PRUDENT MAN TO BELIEVE
THAT INTOXICATING LIQUOR WAS BEING TRANSPORTED IN THE COUPE, AND DID
NOT CONSTITUTE PROBABLE CAUSE FOR A SEARCH."  165 F.2D AT 514.  IF, AS
WE THINK, THE CARROLL CASE IS INDISTINGUISHABLE FROM THIS ONE ON THE
MATERIAL FACTS, AND THAT DECISION IS TO CONTINUE IN FORCE, IT
NECESSARILY FOLLOWS THAT THE QUOTED "FINDING" OR "CONCLUSION" WAS
ERRONEOUS.  FN10  IN THE ABSENCE OF ANY SIGNIFICANT DIFFERENCE IN THE
FACTS, IT CANNOT BE THAT THE FOURTH AMENDMENT'S INCIDENCE TURNS ON
WHETHER DIFFERENT TRIAL JUDGES DRAW GENERAL CONCLUSIONS THAT THE FACTS
ARE SUFFICIENT OR INSUFFICIENT TO CONSTITUTE PROBABLE CAUSE. 

                 II. 

IT REMAINS TO CONSIDER ONE FURTHER ASSERTED DIFFERENCE BETWEEN THIS
CASE AND THE CARROLL CASE, HAVING TO DO WITH THE ADMISSIBILITY OR
INADMISSIBILITY AT THE TRIAL OF THE EVIDENCE ON WHICH THE AGENTS ACTED
IN MAKING THE SEARCH, PARTICULARLY THE EVIDENCE CONCERNING THEIR
KNOWLEDGE THAT THE DEFENDANTS WERE ENGAGING IN ILLICIT LIQUOR RUNNING. 

IT IS ARGUED FIRST THAT THIS CASE CAN BE DISTINGUISHED FROM CARROLL
BECAUSE MALSED'S KNOWLEDGE OF THIS PRIMARY AND ULTIMATE FACT RESTED
WHOLLY OR LARGELY ON SURMISE OR HEARSAY.  THIS ARGUMENT IS DISPROVED BY
THE FACTS OF RECORD WHICH WE HAVE SET FORTH ABOVE.  THERE WAS HEARSAY,
BUT THERE WAS MUCH MORE.  INDEED, AS WE HAVE EMPHASIZED, THE FACTS
DERIVED FROM MALSED'S PERSONAL OBSERVATIONS WERE SUFFICIENT IN
THEMSELVES, WITHOUT THE HEARSAY CONCERNING GENERAL REPUTATION, TO
SUSTAIN HIS CONCLUSION CONCERNING THE ILLEGAL CHARACTER OF BRINEGAR'S
OPERATIONS. 

BUT A FURTHER DISTINCTION BASED UPON INADMISSIBILITY OF THE EVIDENCE
IS ASSERTED.  IT IS SAID THAT, WHILE IN CARROLL THE DEFENDANTS' OFFER
TO SELL LIQUOR TO THE AGENTS WAS ADMISSIBLE AND WAS ADMITTED AT THE
TRIAL, HERE THE EVIDENCE THAT MALSED HAD ARRESTED BRINEGAR FOR ILLEGAL
TRANSPORTATION OF LIQUOR SEVERAL MONTHS BEFORE THE SEARCH, THOUGH
ADMITTED ON THE HEARING ON THE MOTION TO SUPPRESS, WAS EXCLUDED AT THE
TRIAL.  CF. MICHELSON V. UNITED STATES, 335 U.S. 469.  THE INFERENCE
SEEMS TO BE THAT THE EVIDENCE CONCERNING THE PRIOR ARREST SHOULD NOT
HAVE BEEN RECEIVED AT THE HEARING ON THE MOTION.  IN ANY EVENT, THE
CONCLUSION IS DRAWN THAT THE FACTORS RELATING TO INADMISSIBILITY OF THE
EVIDENCE HERE, FOR PURPOSES OF PROVING GUILT AT THE TRIAL, DEPRIVE THE
EVIDENCE AS A WHOLE OF SUFFICIENCY TO SHOW PROBABLE CAUSE FOR THE
SEARCH AND THEREFORE DISTINGUISH THIS CASE FROM THE CARROLL CASE. 

APART FROM ITS FAILURE TO TAKE ACCOUNT OF THE FACTS DISCLOSED BY
MALSED'S DIRECT AND PERSONAL OBSERVATION, EVEN IF HIS TESTIMONY
CONCERNING THE PRIOR ARREST WERE EXCLUDED, THE SO-CALLED DISTINCTION
PLACES A WHOLLY UNWARRANTED EMPHASIS UPON THE CRITERION OF
ADMISSIBILITY IN EVIDENCE, TO PROVE THE ACCUSED'S GUILT, OF THE FACTS
RELIED UPON TO SHOW PROBABLE CAUSE.  THAT EMPHASIS, WE THINK, GOES MUCH
TOO FAR IN CONFUSING AND DISREGARDING THE DIFFERENCE BETWEEN WHAT IS
REQUIRED TO PROVE GUILT IN A CRIMINAL CASE AND WHAT IS REQUIRED TO SHOW
PROBABLE CAUSE FOR ARREST OR SEARCH.  IT APPROACHES REQUIRING (IF IT
DOES NOT IN PRACTICAL EFFECT REQUIRE) PROOF SUFFICIENT TO ESTABLISH
GUILT IN ORDER TO SUBSTANTIATE THE EXISTENCE OF PROBABLE CAUSE.  THERE
IS A LARGE DIFFERENCE BETWEEN THE TWO THINGS TO BE PROVED, AS WELL AS
BETWEEN THE TRIBUNALS WHICH DETERMINE THEM, AND THEREFORE A LIKE
DIFFERENCE IN THE QUANTA AND MODES OF PROOF REQUIRED TO ESTABLISH
THEM. 

FOR A VARIETY OF REASONS RELATING NOT ONLY TO PROBATIVE VALUE AND
TRUSTWORTHINESS, BUT ALSO TO POSSIBLE PREJUDICIAL EFFECT UPON A TRIAL
JURY AND THE ABSENCE OF OPPORTUNITY FOR CROSS-EXAMINATION, THE
GENERALLY ACCEPTED RULES OF EVIDENCE THROW MANY EXCLUSIONARY
PROTECTIONS ABOUT ONE WHO IS CHARGED WITH AND STANDING TRIAL FOR
CRIME.  MUCH EVIDENCE OF REAL AND SUBSTANTIAL PROBATIVE VALUE GOES OUT
ON CONSIDERATIONS IRRELEVANT TO ITS PROBATIVE WEIGHT BUT RELEVANT TO
POSSIBLE MISUNDERSTANDING OR MISUSE BY THE JURY. 

THUS, IN THIS CASE, THE TRIAL COURT PROPERLY EXCLUDED FROM THE RECORD
AT THE TRIAL, CF. MICHELSON V. UNITED STATES, 335 U.S. 469, MALSED'S
TESTIMONY THAT HE HAD ARRESTED BRINEGAR SEVERAL MONTHS EARLIER FOR
ILLEGAL TRANSPORTATION OF LIQUOR AND THAT THE RESULTING INDICTMENT WAS
PENDING IN ANOTHER COURT AT THE TIME OF THE TRIAL OF THIS CASE.  THIS
CERTAINLY WAS NOT DONE ON THE BASIS THAT THE TESTIMONY CONCERNING
ARREST, OR PERHAPS EVEN THE INDICTMENT, WAS SURMISE OR HEARSAY OR THAT
IT WAS WITHOUT PROBATIVE VALUE.  YET THE SAME COURT ADMITTED THE
TESTIMONY AT THE HEARING ON THE MOTION TO SUPPRESS THE EVIDENCE SEIZED
IN THE SEARCH, WHERE THE ISSUE WAS NOT GUILT BUT PROBABLE CAUSE AND WAS
DETERMINED BY THE COURT WITHOUT A JURY.  FN11 

THE COURT'S RULINGS, ONE ADMITTING, THE OTHER EXCLUDING THE IDENTICAL
TESTIMONY, WERE NEITHER INCONSISTENT NOR IMPROPER.  THEY ILLUSTRATE THE
DIFFERENCE IN STANDARDS AND LATITUDE ALLOWED IN PASSING UPON THE
DISTINCT ISSUES OF PROBABLE CAUSE AND GUILT.  GUILT IN A CRIMINAL CASE
MUST BE PROVED BEYOND A REASONABLE DOUBT AND BY EVIDENCE CONFINED TO
THAT WHICH LONG EXPERIENCE IN THE COMMON-LAW TRADITION, TO SOME EXTENT
EMBODIED IN THE CONSTITUTION, HAS CRYSTALLIZED INTO RULES OF EVIDENCE
CONSISTENT WITH THAT STANDARD.  THESE RULES ARE HISTORICALLY GROUNDED
RIGHTS OF OUR SYSTEM, DEVELOPED TO SAFEGUARD MEN FROM DUBIOUS AND
UNJUST CONVICTIONS, WITH RESULTING FORFEITURES OF LIFE, LIBERTY AND
PROPERTY. 

HOWEVER, IF THOSE STANDARDS WERE TO BE MADE APPLICABLE IN DETERMINING
PROBABLE CAUSE FOR AN ARREST OR FOR SEARCH AND SEIZURE, MORE ESPECIALLY
IN CASES SUCH AS THIS INVOLVING MOVING VEHICLES USED IN THE COMMISSION
OF CRIME, FEW INDEED WOULD BE THE SITUATIONS IN WHICH AN OFFICER,
CHARGED WITH PROTECTING THE PUBLIC INTEREST BY ENFORCING THE LAW, COULD
TAKE EFFECTIVE ACTION TOWARD THAT END.  FN12  THOSE STANDARDS HAVE
SELDOM BEEN SO APPLIED.  FN13 

IN DEALING WITH PROBABLE CAUSE, HOWEVER, AS THE VERY NAME IMPLIES, WE
DEAL WITH PROBABILITIES.  THESE ARE NOT TECHNICAL; THEY ARE THE FACTUAL
AND PRACTICAL CONSIDERATIONS OF EVERYDAY LIFE ON WHICH REASONABLE AND
PRUDENT MEN, NOT LEGAL TECHNICIANS, ACT.  THE STANDARD OF PROOF IS
ACCORDINGLY CORRELATIVE TO WHAT MUST BE PROVED. 

"THE SUBSTANCE OF ALL THE DEFINITIONS" OF PROBABLE CAUSE "IS A
REASONABLE GROUND FOR BELIEF OF GUILT."  MCCARTHY V. DE ARMIT, 99 PA.
ST. 63, 69, QUOTED WITH APPROVAL IN THE CARROLL OPINION.  267 U.S. AT
161.  AND THIS "MEANS LESS THAN EVIDENCE WHICH WOULD JUSTIFY
CONDEMNATION" OR CONVICTION, AS MARSHALL, C.J., SAID FOR THE COURT MORE
THAN A CENTURY AGO IN LOCKE V. UNITED STATES, 7 CRANCH 339, 348.  SINCE
MARSHALL'S TIME, AT ANY RATE,  FN14  IT HAS COME TO MEAN MORE THAN BARE
SUSPICION:  PROBABLE CAUSE EXISTS WHERE "THE FACTS AND CIRCUMSTANCES
WITHIN THEIR (THE OFFICERS') KNOWLEDGE AND OF WHICH THEY HAD REASONABLY
TRUSTWORTHY INFORMATION (ARE) SUFFICIENT IN THEMSELVES TO WARRANT A MAN
OF REASONABLE CAUTION IN THE BELIEF THAT" AN OFFENSE HAS BEEN OR IS
BEING COMMITTED.  CARROLL V. UNITED STATES, 267 U.S. 132, 162.  FN15 

THESE LONG-PREVAILING STANDARDS SEEK TO SAFEGUARD CITIZENS FROM RASH
AND UNREASONABLE INTERFERENCES WITH PRIVACY AND FROM UNFOUNDED CHARGES
OF CRIME.  THEY ALSO SEEK TO GIVE FAIR LEEWAY FOR ENFORCING THE LAW IN
THE COMMUNITY'S PROTECTION.  BECAUSE MANY SITUATIONS WHICH CONFRONT
OFFICERS IN THE COURSE OF EXECUTING THEIR DUTIES ARE MORE OR LESS
AMBIGUOUS, ROOM MUST BE ALLOWED FOR SOME MISTAKES ON THEIR PART.  BUT
THE MISTAKES MUST BE THOSE OF REASONABLE MEN, ACTING ON FACTS LEADING
SENSIBLY TO THEIR CONCLUSIONS OF PROBABILITY.  THE RULE OF PROBABLE
CAUSE IS A PRACTICAL, NONTECHNICAL CONCEPTION AFFORDING THE BEST
COMPROMISE THAT HAS BEEN FOUND FOR ACCOMMODATING THESE OFTEN OPPOSING
INTERESTS.  REQUIRING MORE WOULD UNDULY HAMPER LAW ENFORCEMENT.  TO
ALLOW LESS WOULD BE TO LEAVE LAW-ABIDING CITIZENS AT THE MERCY OF THE
OFFICERS' WHIM OR CAPRICE. 

THE TROUBLESOME LINE POSED BY THE FACTS IN THE CARROLL CASE AND THIS
CASE IS ONE BETWEEN MERE SUSPICION AND PROBABLE CAUSE.  THAT LINE
NECESSARILY MUST BE DRAWN BY AN ACT OF JUDGMENT FORMED IN THE LIGHT OF
THE PARTICULAR SITUATION AND WITH ACCOUNT TAKEN OF ALL THE
CIRCUMSTANCES.  NO PROBLEM OF SEARCHING THE HOME OR ANY OTHER PLACE OF
PRIVACY WAS PRESENTED EITHER IN CARROLL OR HERE.  BOTH CASES INVOLVE
FREEDOM TO USE PUBLIC HIGHWAYS IN SWIFTLY MOVING VEHICLES FOR DEALING
IN CONTRABAND, AND TO BE UNMOLESTED BY INVESTIGATION AND SEARCH IN
THOSE MOVEMENTS.  IN SUCH A CASE THE CITIZEN WHO HAS GIVEN NO GOOD
CAUSE FOR BELIEVING HE IS ENGAGED IN THAT SORT OF ACTIVITY IS ENTITLED
TO PROCEED ON HIS WAY WITHOUT INTERFERENCE.  FN16  BUT ONE WHO RECENTLY
AND REPEATEDLY HAS GIVEN SUBSTANTIAL GROUND FOR BELIEVING THAT HE IS
ENGAGING IN THE FORBIDDEN TRANSPORTATION IN THE AREA OF HIS USUAL
OPERATIONS HAS NO SUCH IMMUNITY, IF THE OFFICER WHO INTERCEPTS HIM IN
THAT REGION KNOWS THAT FACT AT THE TIME HE MAKES THE INTERCEPTION AND
THE CIRCUMSTANCES UNDER WHICH IT IS MADE ARE NOT SUCH AS TO INDICATE
THE SUSPECT IS GOING ABOUT LEGITIMATE AFFAIRS. 

THIS DOES NOT MEAN, AS SEEMS TO BE ASSUMED, THAT EVERY TRAVELER ALONG
THE PUBLIC HIGHWAYS MAY BE STOPPED AND SEARCHED AT THE OFFICERS' WHIM,
CAPRICE OR MERE SUSPICION N17.  THE QUESTION PRESENTED IN THE CARROLL
CASE LAY ON THE BORDER BETWEEN SUSPICION AND PROBABLE CAUSE.  BUT THE
COURT CAREFULLY CONSIDERED THAT PROBLEM AND RESOLVED IT BY CONCLUDING
THAT THE FACTS WITHIN THE OFFICERS' KNOWLEDGE WHEN THEY INTERCEPTED THE
CARROLL DEFENDANTS AMOUNTED TO MORE THAN MERE SUSPICION AND CONSTITUTED
PROBABLE CAUSE FOR THEIR ACTION.  WE CANNOT SAY THIS CONCLUSION WAS
WRONG, OR WAS SO LACKING IN REASON AND CONSISTENCY WITH THE FOURTH
AMENDMENT'S PURPOSES THAT IT SHOULD NOW BE OVERRIDDEN.  NOR, AS WE HAVE
SAID, CAN WE FIND IN THE PRESENT FACTS ANY SUBSTANTIAL BASIS FOR
DISTINGUISHING THIS CASE FROM THE CARROLL CASE. 

ACCORDINGLY THE JUDGMENT IS AFFIRMED. 

FN1  SECTION 3(A) OF THE LIQUOR ENFORCEMENT ACT OF 1936, 49 STAT.
1928, 27 U.S.C. SEC. 223, PROVIDES:  "WHOEVER SHALL IMPORT, BRING, OR
TRANSPORT ANY INTOXICATING LIQUOR INTO ANY STATE IN WHICH ALL SALES
(EXCEPT FOR SCIENTIFIC, SACRAMENTAL, MEDICINAL, OR MECHANICAL PURPOSES)
OF INTOXICATING LIQUOR CONTAINING MORE THAN 4 PER CENTUM OF ALCOHOL BY
VOLUME ARE PROHIBITED, OTHERWISE THAN IN THE COURSE OF CONTINUOUS
INTERSTATE TRANSPORTATION THROUGH SUCH STATE, OR ATTEMPT SO TO DO, OR
ASSIST IN SO DOING, SHALL:  (1) IF SUCH LIQUOR IS NOT ACCOMPANIED BY
SUCH PERMIT OR PERMITS, LICENSE OR LICENSES THEREFOR AS ARE NOW OR
HEREAFTER REQUIRED BY THE LAWS OF SUCH STATE; OR (2) IF ALL
IMPORTATION, BRINGING, OR TRANSPORTATION OF INTOXICATING LIQUOR INTO
SUCH STATE IS PROHIBITED BY THE LAWS THEREOF; BE GUILTY OF A
MISDEMEANOR AND SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT
MORE THAN ONE YEAR, OR BOTH."  OKLA. SESS. LAWS, 1939, C. 16, ART. 1,
SEC. 1, IN EFFECT AT THE TIME OF PETITIONER'S ARREST, MADE IT UNLAWFUL
TO IMPORT OR CAUSE TO BE IMPORTED INTO THAT STATE, WITHOUT A PERMIT,
ANY INTOXICATING LIQUOR CONTAINING MORE THAN 4 PER CENT OF ALCOHOL BY
VOLUME.    FN2  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON
PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED."  U.S. CONST. AMEND. IV.    FN3  NEITHER THE OPINION OF THE
COURT OF APPEALS NOR THE UNPUBLISHED OPINION OF THE TRIAL COURT REFERS
TO THE CARROLL CASE. 

FN4  "THE FOURTH AMENDMENT DOES NOT DENOUNCE ALL SEARCHES OR
SEIZURES, BUT ONLY SUCH AS ARE UNREASONABLE.  ...  ON REASON AND
AUTHORITY THE TRUE RULE IS THAT IF THE SEARCH AND SEIZURE WITHOUT A
WARRANT ARE MADE UPON PROBABLE CAUSE, THAT IS, UPON A BELIEF,
REASONABLY ARISING OUT OF CIRCUMSTANCES KNOWN TO THE SEIZING OFFICER,
THAT AN AUTOMOBILE OR OTHER VEHICLE CONTAINS THAT WHICH BY LAW IS
SUBJECT TO SEIZURE AND DESTRUCTION, THE SEARCH AND SEIZURE ARE VALID." 
CARROLL V. UNITED STATES, 267 U.S. 132, 147, 149. 

FN5  THE SUBSTANTIVE OFFENSE CHARGED IN CARROLL WAS VIOLATION OF THE
NATIONAL PROHIBITION ACT, 41 STAT. 305; HERE, VIOLATION OF THE LIQUOR
ENFORCEMENT ACT OF 1936. 

FN6  IN THIS CASE IDENTIFICATION OF THE CAR AS HAVING BEEN PREVIOUSLY
USED BY BRINEGAR IN HIS LIQUOR-RUNNING ACTIVITIES WAS INFERENTIAL,
ALTHOUGH IDENTIFICATION OF ITS USE BY HIM IN JOPLIN, MO., HIS SOURCE OF
SUPPLY, WAS DIRECT AND UNDISPUTED. 

FN7  THE GOVERNMENT ALSO STRESSES THE FACT, NOT PRESENT IN THE
CARROLL CASE, OF FLIGHT BY BRINEGAR AFTER HE REALIZED HE WAS BEING
PURSUED.  WE FIND IT IS UNNECESSARY TO TAKE ACCOUNT OF THIS FACTOR IN
DECIDING THIS CASE.  AS TO THE FACTOR OF FLIGHT, SEE HUSTY V. UNITED
STATES, 282 U.S. 694, 700-701; TALLEY V. UNITED STATES, 159 F.2D 703;
UNITED STATES V. HEITNER, 149 F.2D 105, 107; JONES V. UNITED STATES,
131 F.2D 539, 541; LEVINE V. UNITED STATES, 138 F.2D 627, 629. 

FN8  IT WAS UNLAWFUL TO IMPORT INTO OKLAHOMA, WITHOUT A PERMIT, ANY
INTOXICATING LIQUOR, AS DEFINED BY THE LAWS OF THAT STATE, CONTAINING
MORE THAN FOUR PER CENT OF ALCOHOL BY VOLUME.  SEE NOTE 1 SUPRA.
MANUFACTURE, SALE, FURNISHING OR TRANSPORTATION OF INTOXICATING LIQUOR
WAS FORBIDDEN IN OKLAHOMA.  37 OKLA. STAT. SEC. 1(1941). 

FN9  INDEED THE SHOWING HERE WAS STRONGER BECAUSE THERE WAS NO
NECESSITY, AS THERE WAS IN THE CARROLL CASE, FOR RESORTING TO JUDICIAL
NOTICE TO ESTABLISH EITHER THE PROBABLE SOURCE OF SUPPLY OR THAT IT WAS
ILLEGAL.  ON THE PRESENT RECORD JUDICIAL NOTICE IS HARDLY NEEDED TO
GIVE US COGNIZANCE OF THE DIFFERING LAWS OF MISSOURI AND OKLAHOMA, OR
OF JOPLIN'S PROXIMITY TO THE STATE LINE, AND ITS READY CONVENIENCE TO
ONE LIVING AS NEAR BY AS VINITA WHO MIGHT BE DISPOSED TO USE IT AS A
BASE OF SUPPLY FOR IMPORTING LIQUOR INTO OKLAHOMA IN VIOLATION OF THE
STATE AND FEDERAL STATUTES. 

FN10  AS HAS BEEN NOTED ABOVE, THE CARROLL CASE IS NEITHER CITED NOR
REFERRED TO IN ANY OF THE OPINIONS FILED IN THE TRIAL COURT AND THE
COURT OF APPEALS.  NOR IS THERE ANYTHING IN THE RECORD BEFORE US
SHOWING THAT THE CARROLL DECISION WAS CONSIDERED IN ANY OF THE RULINGS
MADE IN THE HEARING ON THE MOTION TO SUPPRESS, AT THE TRIAL, OR IN THE
COURT OF APPEALS. 

FN11  THE COURT HOWEVER THOUGHT THAT, EVEN WITH THE FACT OF THE
ARREST BEFORE IT, THE EVIDENCE WAS INSUFFICIENT TO SHOW PROBABLE CAUSE
AT THE TIME BRINEGAR PASSED THE POLICE CAR. 

FN12  THE INAPPROPRIATENESS OF APPLYING THE RULES OF EVIDENCE AS A
CRITERION TO DETERMINE PROBABLE CAUSE IS APPARENT IN THE CASE OF AN
APPLICATION FOR A WARRANT BEFORE A MAGISTRATE, THE CONTEXT IN WHICH THE
ISSUE OF PROBABLE CAUSE MOST FREQUENTLY ARISES.  THE ORDINARY RULES OF
EVIDENCE ARE GENERALLY NOT APPLIED IN EX PARTE PROCEEDINGS, "PARTLY
BECAUSE THERE IS NO OPPONENT TO INVOKE THEM, PARTLY BECAUSE THE JUDGE'S
DETERMINATION IS USUALLY DISCRETIONARY, PARTLY BECAUSE IT IS SELDOM
FINAL, BUT MAINLY BECAUSE THE SYSTEM OF EVIDENCE RULES WAS DEVISED FOR
THE SPECIAL CONTROL OF TRIALS BY JURY."  1 WIGMORE, EVIDENCE (3D ED.,
1940) 19.  SEE ALSO NOTE, 46 HARV. L. REV. 1307, 1310-1311. 

FN13  BUT SEE, E.G., GRAU V. UNITED STATES, 287 U.S. 124, 128, IN
WHICH IT WAS SAID BY WAY OF DICTUM THAT "A SEARCH WARRANT MAY ISSUE
ONLY UPON EVIDENCE WHICH WOULD BE COMPETENT IN THE TRIAL OF THE OFFENSE
BEFORE A JURY (GILES V. UNITED STATES, 284 FED. 208; WAGNER V. UNITED
STATES, 8 F.(2D) 581  ...  "  FOR THIS PROPOSITION THERE WAS NO
AUTHORITY IN THE DECISIONS OF THIS COURT.  IT WAS STATED IN A CASE IN
WHICH THE EVIDENCE ADDUCED TO PROVE PROBABLE CAUSE WAS NOT INCOMPETENT,
BUT WAS INSUFFICIENT TO SUPPORT THE INFERENCE NECESSARY TO THE
EXISTENCE OF PROBABLE CAUSE.  THE STATEMENT HAS NOT BEEN REPEATED BY
THIS COURT. 

THE WAGNER CASE RELIES SOLELY UPON GILES, THE OTHER CASE CITED IN
GRAU, AND HOLDS A WARRANT BAD WHICH ISSUED ON THE BASIS OF "HEARSAY AND
CONCLUSIONS."  THE GRAU DICTUM OCCASIONALLY HAS BEEN APPLIED OR STATED
AS DICTUM BY THE COURTS OF APPEALS AND DISTRICT COURTS:  SIMMONS V.
UNITED STATES, 18 F.2D 85, 88; WORTHINGTON V. UNITED STATES, 166 F.2D
557, 564-565; SEE ALSO REEVE V. HOWE, 33 F.SUPP.  619, 622; UNITED
STATES V. NOVERO, 58 F.SUPP.  275, 279.  CF. DAVIS V. UNITED STATES, 35
F.2D 957.  SEE NOTE, 46 HARV. L. REV. 1307, 1310-1311, FOR A CRITICISM
OF THE GRAU DICTUM.  AND SEE NOTE 15, INFRA, AND TEXT. 

FN14  MARSHALL'S FULL STATEMENT IN LOCKE V. UNITED STATES WAS:  "IT
MAY BE ADDED, THAT THE TERM 'PROBABLE CAUSE,' ACCORDING TO ITS USUAL
ACCEPTATION, MEANS LESS THAN EVIDENCE WHICH WOULD JUSTIFY CONDEMNATION;
AND, IN ALL CASES OF SEIZURE, HAS A FIXED AND WELL KNOWN MEANING.  IT
IMPORTS A SEIZURE MADE UNDER CIRCUMSTANCES WHICH WARRANT SUSPICION."  7
CRANCH 339, 348. 

FN15  TO THE SAME EFFECT ARE:  HUSTY V. UNITED STATES, 282 U.S. 694,
700-701; DUMBRA V. UNITED STATES, 268 U.S. 435, 441; STEELE V. UNITED
STATES NO. 1, 267 U.S. 498, 504-505; STACEY V. EMERY, 97 U.S. 642,
645. 

THE CARROLL OPINION ALSO QUOTES WITH APPROVAL THE FOLLOWING
STATEMENT:  "IF THE FACTS AND CIRCUMSTANCES BEFORE THE OFFICER ARE SUCH
AS TO WARRANT A MAN OF PRUDENCE AND CAUTION IN BELIEVING THAT THE
OFFENSE HAS BEEN COMMITTED, IT IS SUFFICIENT."  P. 161.  ASCRIPTION OF
THE STATEMENT TO LOCKE V. UNITED STATES, 7 CRANCH 339, APPEARS TO BE AN
ERROR IN CITATION. 

FN16  SEE THE DISCUSSION OF EXCEPTIONS IN THE CARROLL OPINION, 267
U.S. 132, 149 FF. 

FN17  "IT WOULD BE INTOLERABLE AND UNREASONABLE IF A PROHIBITION
AGENT WERE AUTHORIZED TO STOP EVERY AUTOMOBILE ON THE CHANCE OF FINDING
LIQUOR AND THUS SUBJECT ALL PERSONS LAWFULLY USING THE HIGHWAYS TO THE
INCONVENIENCE AND INDIGNITY OF SUCH A SEARCH.  TRAVELLERS MAY BE SO
STOPPED IN CROSSING AN INTERNATIONAL BOUNDARY BECAUSE OF NATIONAL SELF
PROTECTION REASONABLY REQUIRING ONE ENTERING THE COUNTRY TO IDENTIFY
HIMSELF AS ENTITLED TO COME IN, AND HIS BELONGINGS AS EFFECTS WHICH MAY
BE LAWFULLY BROUGHT IN.  BUT THOSE LAWFULLY WITHIN THE COUNTRY,
ENTITLED TO USE THE PUBLIC HIGHWAYS, HAVE A RIGHT TO FREE PASSAGE
WITHOUT INTERRUPTION OR SEARCH UNLESS THERE IS KNOWN TO A COMPETENT
OFFICIAL AUTHORIZED TO SEARCH, PROBABLE CAUSE FOR BELIEVING THAT THEIR
VEHICLES ARE CARRYING CONTRABAND OR ILLEGAL MERCHANDISE."  CARROLL V.
UNITED STATES, 267 U.S. 132, 153-154. 

MR. JUSTICE BURTON, CONCURRING. 

I JOIN IN THE OPINION OF THE COURT THAT THERE WAS PROBABLE CAUSE FOR
THE SEARCH WITHIN THE STANDARDS ESTABLISHED IN CARROLL V. UNITED
STATES, 267 U.S. 132. 

WHETHER OR NOT THE NECESSARY PROBABLE CAUSE FOR A SEARCH OF THE
PETITIONER'S CAR EXISTED BEFORE THE GOVERNMENT AGENTS CAUGHT UP WITH
HIM AND SAID TO HIM, "HOW MUCH LIQUOR HAVE YOU GOT IN THE CAR THIS
TIME?"  AND HE REPLIED, "NOT TOO MUCH," IT IS CLEAR, AND EACH OF THE
LOWER COURTS FOUND, THAT, UNDER ALL OF THE CIRCUMSTANCES OF THIS CASE,
THE NECESSARY PROBABLE CAUSE FOR THE SEARCH OF THE PETITIONER'S CAR
THEN EXISTED.  IF PROBABLE CAUSE FOR THE SEARCH EXISTED AT THAT POINT,
THE SEARCH WHICH THEN WAS BEGUN WAS LAWFUL WITHOUT A SEARCH WARRANT AS
IS DEMONSTRATED IN THE OPINION OF THE COURT.  THAT SEARCH DISCLOSED
THAT A CRIME WAS IN THE COURSE OF ITS COMMISSION IN THE PRESENCE OF THE
ARRESTING OFFICERS, PRECISELY AS THOSE OFFICERS HAD GOOD REASON TO
BELIEVE WAS THE FACT.  THE ENSUING ARREST OF THE PETITIONER WAS LAWFUL
AND THE SUBSEQUENT DENIAL OF HIS MOTION TO SUPPRESS THE EVIDENCE
OBTAINED BY THE SEARCH WAS PROPERLY SUSTAINED. 

IT IS MY VIEW THAT IT IS NOT NECESSARY, FOR THE PURPOSES OF THIS
CASE, TO ESTABLISH PROBABLE CAUSE FOR THE SEARCH AT ANY POINT EARLIER
THAN THAT OF THE ABOVE COLLOQUY.  THE EARLIER EVENTS, RECITED IN THE
OPINION OF THE COURT, DISCLOSE AT LEAST AMPLE GROUNDS TO JUSTIFY THE
CHASE AND OFFICIAL INTERROGATION OF THE PETITIONER BY THE GOVERNMENT
AGENTS IN THE MANNER ADOPTED.  THIS INTERROGATION QUICKLY DISCLOSED
INDISPUTABLE PROBABLE CAUSE FOR THE SEARCH AND FOR THE ARREST.  IN MY
VIEW, THESE EARLIER EVENTS NOT ONLY JUSTIFIED THE STEPS TAKEN BY THE
GOVERNMENT AGENTS BUT THOSE EVENTS IMPOSED UPON THE GOVERNMENT AGENTS A
POSITIVE DUTY TO INVESTIGATE FURTHER, IN SOME SUCH MANNER AS THEY
ADOPTED.  IT IS ONLY BY ALERTNESS TO PROPER OCCASIONS FOR PROMPT
INQUIRIES AND INVESTIGATIONS THAT EFFECTIVE PREVENTION OF CRIME AND
ENFORCEMENT OF LAW IS POSSIBLE.  GOVERNMENT AGENTS ARE COMMISSIONED TO
REPRESENT THE INTERESTS OF THE PUBLIC IN THE ENFORCEMENT OF THE LAW AND
THIS REQUIRES AFFIRMATIVE ACTION NOT ONLY WHEN THERE IS REASONABLE
GROUND FOR AN ARREST OR PROBABLE CAUSE FOR A SEARCH BUT WHEN THERE IS
REASONABLE GROUND FOR AN INVESTIGATION.  THIS IS INCREASINGLY TRUE WHEN
THE FACTS POINT DIRECTLY TO A CRIME IN THE COURSE OF COMMISSION IN THE
PRESENCE OF THE AGENT.  PROMPT INVESTIGATION MAY THEN NOT ONLY DISCOVER
BUT, WHAT IS STILL MORE IMPORTANT, MAY INTERRUPT THE CRIME AND PREVENT
SOME OR ALL OF ITS DAMAGING CONSEQUENCES. 

IN THE PRESENT CASE, FROM THE MOMENT THAT THE AGENTS SAW THIS
PETITIONER DRIVING HIS HEAVILY LADEN CAR IN OKLAHOMA, EVIDENTLY EN
ROUTE FROM MISSOURI, THE EVENTS JUSTIFYING AND CALLING FOR AN
INTERROGATION OF HIM RAPIDLY GAINED CUMULATIVE FORCE.  NOTHING OCCURRED
THAT EVEN TENDED TO LESSEN THE REASONABLENESS OF THE ORIGINAL BASIS FOR
THE SUSPICION OF THE AGENTS THAT A CRIME WITHIN THEIR PARTICULAR LINE
OF DUTY WAS BEING COMMITTED IN THEIR PRESENCE.  NOTHING OCCURRED TO
MAKE IT UNLAWFUL FOR THEM, IN LINE OF DUTY, TO MAKE THE INTERROGATION
WHICH SUGGESTED ITSELF TO THEM.  WHEN THEIR INTERROGATION OF THE
PETITIONER LED TO HIS VOLUNTARY RESPONSE AS QUOTED ABOVE, THAT RESPONSE
DEMONSTRATED AMPLE PROBABLE CAUSE FOR AN IMMEDIATE SEARCH OF THE
PETITIONER'S CAR FOR THE CONTRABAND LIQUOR WHICH HE HAD INDICATED MIGHT
BE FOUND THERE.  THE INTERROGATION OF THE PETITIONER, THUS MADE BY THE
AGENTS IN THEIR JUSTIFIABLE INVESTIGATION OF A CRIME REASONABLY
SUSPECTED BY THEM TO BE IN THE COURSE OF COMMISSION IN THEIR PRESENCE,
CANNOT NOW BE RESORTED TO BY THE PETITIONER IN SUPPORT OF A MOTION TO
SUPPRESS THE EVIDENCE OF THAT CRIME.  GOVERNMENT AGENTS HAVE DUTIES OF
CRIME PREVENTION AND CRIME DETECTION AS WELL AS THE DUTY OF ARRESTING
OFFENDERS CAUGHT IN THE COMMISSION OF A CRIME OR LATER IDENTIFIED AS
HAVING COMMITTED A CRIME.  THE PERFORMANCE OF THE FIRST DUTIES ARE AS
IMPORTANT AS THE PERFORMANCE OF THE LAST.  IN THIS CASE THE PERFORMANCE
OF THE FIRST HALTED THE COMMISSION OF THE CRIME AND ALSO RESULTED IN
THE ARREST OF THE OFFENDER. 

MR. JUSTICE JACKSON, DISSENTING. 

WHEN THIS COURT RECENTLY HAS PROMULGATED A PHILOSOPHY THAT SOME
RIGHTS DERIVED FROM THE CONSTITUTION ARE ENTITLED TO "A PREFERRED
POSITION," MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 115, DISSENT AT P.
166; SAIA V. NEW YORK, 334 U.S. 558, 562, I HAVE NOT AGREED.  WE CANNOT
GIVE SOME CONSTITUTIONAL RIGHTS A PREFERRED POSITION WITHOUT RELEGATING
OTHERS TO A DEFERRED POSITION; WE CAN ESTABLISH NO FIRSTS WITHOUT
THEREBY ESTABLISHING SECONDS.  INDICATIONS ARE NOT WANTING THAT FOURTH
AMENDMENT FREEDOMS ARE TACITLY MARKED AS SECONDARY RIGHTS, TO BE
RELEGATED TO A DEFERRED POSITION. 

THE FOURTH AMENDMENT STATES:  "THE RIGHT OF THE PEOPLE TO BE SECURE
IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE
SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL
ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND
PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR
THINGS TO BE SEIZED." 

THESE, I PROTEST, ARE NOT MERE SECOND-CLASS RIGHTS BUT BELONG IN THE
CATALOG OF INDISPENSABLE FREEDOMS.  AMONG DEPRIVATIONS OF RIGHTS, NONE
IS SO EFFECTIVE IN COWING A POPULATION, CRUSHING THE SPIRIT OF THE
INDIVIDUAL AND PUTTING TERROR IN EVERY HEART.  UNCONTROLLED SEARCH AND
SEIZURE IS ONE OF THE FIRST AND MOST EFFECTIVE WEAPONS IN THE ARSENAL
OF EVERY ARBITRARY GOVERNMENT.  AND ONE NEED ONLY BRIEFLY TO HAVE DWELT
AND WORKED AMONG A PEOPLE POSSESSED OF MANY ADMIRABLE QUALITIES BUT
DEPRIVED OF THESE RIGHTS TO KNOW THAT THE HUMAN PERSONALITY
DETERIORATES AND DIGNITY AND SELF-RELIANCE DISAPPEAR WHERE HOMES,
PERSONS AND POSSESSIONS ARE SUBJECT AT ANY HOUR TO UNHERALDED SEARCH
AND SEIZURE BY THE POLICE. 

BUT THE RIGHT TO BE SECURE AGAINST SEARCHES AND SEIZURES IS ONE OF
THE MOST DIFFICULT TO PROTECT.  SINCE THE OFFICERS ARE THEMSELVES THE
CHIEF INVADERS, THERE IS NO ENFORCEMENT OUTSIDE OF COURT. 

ONLY OCCASIONAL AND MORE FLAGRANT ABUSES COME TO THE ATTENTION OF THE
COURTS, AND THEN ONLY THOSE WHERE THE SEARCH AND SEIZURE YIELDS
INCRIMINATING EVIDENCE AND THE DEFENDANT IS AT LEAST SUFFICIENTLY
COMPROMISED TO BE INDICTED.  IF THE OFFICERS RAID A HOME, AN OFFICE, OR
STOP AND SEARCH AN AUTOMOBILE BUT FIND NOTHING INCRIMINATING, THIS
INVASION OF THE PERSONAL LIBERTY OF THE INNOCENT TOO OFTEN FINDS NO
PRACTICAL REDRESS.  THERE MAY BE, AND I AM CONVINCED THAT THERE ARE,
MANY UNLAWFUL SEARCHES OF HOMES AND AUTOMOBILES OF INNOCENT PEOPLE
WHICH TURN UP NOTHING INCRIMINATING, IN WHICH NO ARREST IS MADE, ABOUT
WHICH COURTS DO NOTHING, AND ABOUT WHICH WE NEVER HEAR.    COURTS CAN
PROTECT THE INNOCENT AGAINST SUCH INVASIONS ONLY INDIRECTLY AND THROUGH
THE MEDIUM OF EXCLUDING EVIDENCE OBTAINED AGAINST THOSE WHO FREQUENTLY
ARE GUILTY.  FEDERAL COURTS HAVE USED THIS METHOD OF ENFORCEMENT OF THE
AMENDMENT, IN SPITE OF ITS UNFORTUNATE CONSEQUENCES ON LAW ENFORCEMENT,
ALTHOUGH MANY STATE COURTS DO NOT.  THIS INCONSISTENCY DOES NOT DISTURB
ME, FOR LOCAL EXCESSES OR INVASIONS OF LIBERTY ARE MORE AMENABLE TO
POLITICAL CORRECTION, THE AMENDMENT WAS DIRECTED ONLY AGAINST THE NEW
AND CENTRALIZED GOVERNMENT, AND ANY REALLY DANGEROUS THREAT TO THE
GENERAL LIBERTIES OF THE PEOPLE CAN COME ONLY FROM THIS SOURCE.  WE
MUST THEREFORE LOOK UPON THE EXCLUSION OF EVIDENCE IN FEDERAL
PROSECUTIONS, IF OBTAINED IN VIOLATION OF THE AMENDMENT, AS A MEANS OF
EXTENDING PROTECTION AGAINST THE CENTRAL GOVERNMENT'S AGENCIES.  SO A
SEARCH AGAINST BRINEGAR'S CAR MUST BE REGARDED AS A SEARCH OF THE CAR
OF EVERYMAN. 

WE MUST REMEMBER THAT THE EXTENT OF ANY PRIVILEGE OF SEARCH AND
SEIZURE WITHOUT WARRANT WHICH WE SUSTAIN, THE OFFICERS INTERPRET AND
APPLY THEMSELVES AND WILL PUSH TO THE LIMIT.  WE MUST REMEMBER, TOO,
THAT FREEDOM FROM UNREASONABLE SEARCH DIFFERS FROM SOME OF THE OTHER
RIGHTS OF THE CONSTITUTION IN THAT THERE IS NO WAY IN WHICH THE
INNOCENT CITIZEN CAN INVOKE ADVANCE PROTECTION.  FOR EXAMPLE, ANY
EFFECTIVE INTERFERENCE WITH FREEDOM OF THE PRESS, OR FREE SPEECH, OR
RELIGION, USUALLY REQUIRES A COURSE OF SUPPRESSIONS AGAINST WHICH THE
CITIZEN CAN AND OFTEN DOES GO TO THE COURT AND OBTAIN AN INJUNCTION. 
OTHER RIGHTS, SUCH AS THAT TO AN IMPARTIAL JURY OR THE AID OF COUNSEL,
ARE WITHIN THE SUPERVISORY POWER OF THE COURTS THEMSELVES.  SUCH A
RIGHT AS JUST COMPENSATION FOR THE TAKING OF PRIVATE PROPERTY MAY BE
VINDICATED AFTER THE ACT IN TERMS OF MONEY. 

BUT AN ILLEGAL SEARCH AND SEIZURE USUALLY IS A SINGLE INCIDENT,
PERPETRATED BY SURPRISE, CONDUCTED IN HASTE, KEPT PURPOSELY BEYOND THE
COURT'S SUPERVISION AND LIMITED ONLY BY THE JUDGMENT AND MODERATION OF
OFFICERS WHOSE OWN INTERESTS AND RECORDS ARE OFTEN AT STAKE IN THE
SEARCH.  THERE IS NO OPPORTUNITY FOR INJUNCTION OR APPEAL TO
DISINTERESTED INTERVENTION.  THE CITIZEN'S CHOICE IS QUIETLY TO SUBMIT
TO WHATEVER THE OFFICERS UNDERTAKE OR TO RESIST AT RISK OF ARREST OR
IMMEDIATE VIOLENCE. 

AND WE MUST REMEMBER THAT THE AUTHORITY WHICH WE CONCEDE TO CONDUCT
SEARCHES AND SEIZURES WITHOUT WARRANT MAY BE EXERCISED BY THE MOST
UNFIT AND RUTHLESS OFFICERS AS WELL AS BY THE FIT AND RESPONSIBLE, AND
RESORTED TO IN CASE OF PETTY MISDEMEANORS AS WELL AS IN THE CASE OF THE
GRAVEST FELONIES. 

WITH THIS PROLOGUE I COME TO THE CASE OF BRINEGAR.  HIS AUTOMOBILE
WAS ONE OF HIS "EFFECTS" AND HENCE WITHIN THE EXPRESS PROTECTION OF THE
FOURTH AMENDMENT.  UNDOUBTEDLY THE AUTOMOBILE PRESENTS PECULIAR
PROBLEMS FOR ENFORCEMENT AGENCIES, IS FREQUENTLY A FACILITY FOR THE
PERPETRATION OF CRIME AND AN AID IN THE ESCAPE OF CRIMINALS.  BUT IF WE
ARE TO MAKE JUDICIAL EXCEPTIONS TO THE FOURTH AMENDMENT FOR THESE
REASONS, IT SEEMS TO ME THEY SHOULD DEPEND SOMEWHAT UPON THE GRAVITY OF
THE OFFENSE.  IF WE ASSUME, FOR EXAMPLE, THAT A CHILD IS KIDNAPED AND
THE OFFICERS THROW A ROADBLOCK ABOUT THE NEIGHBORHOOD AND SEARCH EVERY
OUTGOING CAR, IT WOULD BE A DRASTIC AND UNDISCRIMINATING USE OF THE
SEARCH.  THE OFFICERS MIGHT BE UNABLE TO SHOW PROBABLE CAUSE FOR
SEARCHING ANY PARTICULAR CAR.  HOWEVER, I SHOULD CANDIDLY STRIVE HARD
TO SUSTAIN SUCH AN ACTION, EXECUTED FAIRLY AND IN GOOD FAITH, BECAUSE
IT MIGHT BE REASONABLE TO SUBJECT TRAVELERS TO THAT INDIGNITY IF IT WAS
THE ONLY WAY TO SAVE A THREATENED LIFE AND DETECT A VICIOUS CRIME.  BUT
I SHOULD NOT STRAIN TO SUSTAIN SUCH A ROADBLOCK AND UNIVERSAL SEARCH TO
SALVAGE A FEW BOTTLES OF BOURBON AND CATCH A BOOTLEGGER. 

THE COURT SUSTAINS THIS SEARCH AS AN APPLICATION OF CARROLL V. UNITED
STATES, 267 U.S. 132.  I DISSENT BECAUSE I REGARD IT AS AN EXTENSION OF
THE CARROLL CASE, WHICH ALREADY HAS BEEN TOO MUCH TAKEN BY ENFORCEMENT
OFFICERS AS BLANKET AUTHORITY TO STOP AND SEARCH CARS ON SUSPICION.  I
SHALL CONFINE THIS OPINION TO SHOWING THE SEVERAL WAYS IN WHICH THIS
DECISION SEEMS TO EXPAND THE ALREADY EXPANSIVE RIGHT TO STOP AND SEARCH
AUTOMOBILES. 

IN THE FIRST PLACE, NATIONAL PROHIBITION LEGISLATION WAS FOUND IN THE
CARROLL CASE TO HAVE PUT CONGRESSIONAL AUTHORITY BACK OF THE SEARCH
WITHOUT WARRANT OF CARS SUSPECTED OF ITS VIOLATION.  NO SUCH
CONGRESSIONAL AUTHORITY EXISTS IN THIS CASE.  THE COURT IS VOLUNTARILY
DISPENSING WITH WARRANT IN THIS CASE AS MATTER OF JUDICIAL POLICY,
WHILE IN THE CARROLL CASE THE COURT COULD HAVE REQUIRED A WARRANT ONLY
BY HOLDING AN ACT OF CONGRESS UNCONSTITUTIONAL N1. 

A SECOND AND IMPORTANT DISTINCTION IS THAT IN THE CARROLL CASE THE
LOWER COURT HAD FOUND THAT THE EVIDENCE SHOWED PROBABLE CAUSE FOR THAT
SEARCH, WHILE IN THIS CASE TWO COURTS BELOW HAVE HELD THAT (EXCEPT FOR
EVIDENCE TURNED UP AFTER THE SEARCH, WHICH WE CONSIDER LATER) THERE WAS
NOT PROBABLE CAUSE.  IF WE ASSUME THE FACTS TO BE INDISTINGUISHABLE,
THIS IMPORTANT DISTINCTION EMERGES FROM THE DECISIONS:  CARROLL HELD
ONLY THAT THESE FACTS PERMITTED A DISTRICT COURT, IF SO CONVINCED, TO
FIND PROBABLE CAUSE FROM THEM.  THE COURT NOW HOLDS THESE FACTS REQUIRE
A FINDING OF PROBABLE CAUSE.  THIS SHIFT FROM A PERMISSIVE TO A
MANDATORY BASIS IS A SHIFT OF NO INCONSIDERABLE SIGNIFICANCE. 

WHILE THE COURT SUSTAINED THE SEARCH WITHOUT WARRANT IN THE CARROLL
CASE, IT EMPHATICALLY DECLINED TO DISPENSE WITH THE NECESSITY FOR
EVIDENCE OF PROBABLE CAUSE FOR MAKING SUCH A SEARCH.  IT SAID:  "IT
WOULD BE INTOLERABLE AND UNREASONABLE IF A PROHIBITION AGENT WERE
AUTHORIZED TO STOP EVERY AUTOMOBILE ON THE CHANCE OF FINDING LIQUOR AND
THUS SUBJECT ALL PERSONS LAWFULLY USING THE HIGHWAYS TO THE
INCONVENIENCE AND INDIGNITY OF SUCH A SEARCH.  TRAVELLERS MAY BE SO
STOPPED IN CROSSING AN INTERNATIONAL BOUNDARY BECAUSE OF NATIONAL SELF
PROTECTION REASONABLY REQUIRING ONE ENTERING THE COUNTRY TO IDENTIFY
HIMSELF AS ENTITLED TO COME IN, AND HIS BELONGINGS AS EFFECTS WHICH MAY
BE LAWFULLY BROUGHT IN.  BUT THOSE LAWFULLY WITHIN THE COUNTRY,
ENTITLED TO USE THE PUBLIC HIGHWAYS, HAVE A RIGHT TO FREE PASSAGE
WITHOUT INTERRUPTION OR SEARCH UNLESS THERE IS KNOWN TO A COMPETENT
OFFICIAL AUTHORIZED TO SEARCH, PROBABLE CAUSE FOR BELIEVING THAT THEIR
VEHICLES ARE CARRYING CONTRABAND OR ILLEGAL MERCHANDISE."  267 U.S. 132
AT 153. 

ANALYSIS OF THE CARROLL FACTS SHOWS THAT WHILE SEVERAL FACTS ARE
COMMON TO THE TWO CASES, THE SETTINGS FROM WHICH THOSE FACTS TAKE COLOR
AND MEANING DIFFER IN ESSENTIAL RESPECTS. 

IN THE CARROLL CASE, THE PRIMARY AND THE ULTIMATE FACT THAT THE
ACCUSED WAS ENGAGED IN LIQUOR RUNNING WAS NOT SURMISE OR HEARSAY, AS IT
IS HERE.  CARROLL AND HIS COMPANION, SOME TIME BEFORE THEIR ARREST, HAD
COME TO MEET THE TWO ARRESTING OFFICERS, NOT THEN KNOWN AS OFFICIALS,
UPON THE UNDERSTANDING THAT THEY WERE CUSTOMERS WANTING LIQUOR. 
CARROLL PROMISED TO SELL AND DELIVER THEM THREE CASES AT $130 A CASE. 
FOR SOME REASON THERE WAS A FAILURE TO DELIVER, BUT WHEN THE OFFICERS
ARRESTED THEM THEY HAD THIS POSITIVE AND PERSONAL KNOWLEDGE THAT THESE
MEN WERE TRAFFICKING IN LIQUOR.  ALSO, IT IS TO BE NOTED THAT THE
OFFICERS, WHEN BARGAINING FOR LIQUOR, SAW AND LEARNED THE NUMBER OF THE
CAR THESE BOOTLEGGERS WERE USING IN THE BUSINESS AND, AT THE TIME OF
THE ARREST, RECOGNIZED IT AS THE SAME CAR. 

THEN THIS COURT TOOK JUDICIAL NOTICE THAT THE PLACE WHENCE CARROLL,
WHEN STOPPED, WAS COMING, ON THE INTERNATIONAL BOUNDARY, "IS ONE OF THE
MOST ACTIVE CENTERS FOR INTRODUCING ILLEGALLY INTO THIS COUNTRY
SPIRITUOUS LIQUORS FOR DISTRIBUTION INTO THE INTERIOR."  267 U.S. AT
160.  THESE FACTS PROVIDED THE VERY FOUNDATION OF THE OPINION OF THIS
COURT ON THE SUBJECT OF PROBABLE CAUSE, WHICH IT SUMMED UP AS FOLLOWS: 

"THE PARTNERS IN THE ORIGINAL COMBINATION TO SELL LIQUOR IN GRAND
RAPIDS WERE TOGETHER IN THE SAME AUTOMOBILE THEY HAD BEEN IN THE NIGHT
WHEN THEY TRIED TO FURNISH THE WHISKEY TO THE OFFICERS WHICH WAS THUS
IDENTIFIED AS PART OF THE FIRM EQUIPMENT.  THEY WERE COMING FROM THE
DIRECTION OF THE GREAT SOURCE OF SUPPLY FOR THEIR STOCK TO GRAND RAPIDS
WHERE THEY PLIED THEIR TRADE.  THAT THE OFFICERS WHEN THEY SAW THE
DEFENDANTS BELIEVED THAT THEY WERE CARRYING LIQUOR WE CAN HAVE NO
DOUBT, AND WE THINK IT IS EQUALLY CLEAR THAT THEY HAD REASONABLE CAUSE
FOR THINKING SO."  267 U.S. AT 160. 

NOT ONLY DID THE COURT RELY ALMOST EXCLUSIVELY ON INFORMATION GAINED
IN PERSONAL NEGOTIATIONS OF THE OFFICERS TO BUY LIQUOR FROM DEFENDANTS
TO SHOW PROBABLE CAUSE, BUT THE DISSENTING MEMBERS ASSERTED IT TO BE
THE ONLY CIRCUMSTANCE WHICH COULD HAVE SUBJECTED THE ACCUSED TO ANY
REASONABLE SUSPICION.  AND THAT IS THE SORT OF DIRECT EVIDENCE ON
PERSONAL KNOWLEDGE THAT IS LACKING HERE. 

IN CONTRAST, THE PROOF THAT BRINEGAR WAS TRAFFICKING IN ILLEGAL
LIQUOR RESTS ON INFERENCES FROM TWO CIRCUMSTANCES, NEITHER ONE OF WHICH
WOULD BE ALLOWED TO BE PROVED AT A TRIAL:  ONE, IT APPEARS THAT THE
SAME OFFICERS PREVIOUSLY HAD ARRESTED BRINEGAR ON THE SAME CHARGE.  BUT
THERE HAD BEEN NO CONVICTION AND IT DOES NOT APPEAR WHETHER THE
CIRCUMSTANCES OF THE FORMER ARREST INDICATED ANY STRONG PROBABILITY OF
IT.  IN ANY EVENT, THIS EVIDENCE OF A PRIOR ARREST OF THE ACCUSED WOULD
NOT EVEN BE ADMISSIBLE IN A TRIAL TO PROVE HIS GUILT ON THIS OCCASION. 

AS A SECOND BASIS FOR INFERENCE, THE OFFICERS ALSO SAY THAT BRINEGAR
HAD THE REPUTATION OF BEING A LIQUOR RUNNER.  THE WEAKNESS OF THIS
HEARSAY EVIDENCE IS REVEALED BY CONTRASTING IT WITH THE PERSONAL
NEGOTIATIONS WHICH PROVED THAT CARROLL WAS ONE.  THE OFFICERS'
TESTIMONY OF REPUTATION WOULD NOT BE ADMISSIBLE IN A TRIAL OF DEFENDANT
UNLESS HE WAS UNWISE ENOUGH TO OPEN THE SUBJECT HIMSELF BY OFFERING
CHARACTER TESTIMONY.  SEE GREER V. UNITED STATES, 245 U.S. 559, 560. 

I DO NOT SAY THAT NO EVIDENCE WHICH WOULD BE INADMISSIBLE TO PROVE
GUILT AT A TRIAL MAY BE CONSIDERED IN WEIGHING PROBABLE CAUSE, BUT I AM
SURPRISED THAT THE COURT IS READY TO RULE THAT INADMISSIBLE EVIDENCE
ALONE, AS TO VITAL FACTS WITHOUT WHICH OTHER FACTS GIVE LITTLE
INDICATION OF GUILT, ESTABLISH PROBABLE CAUSE AS MATTER OF LAW.  THE
ONLY OTHER FACT IS THAT OFFICER MALSED STATED THAT TWICE, ON SEPTEMBER
23 AND ON SEPTEMBER 30, ABOUT SIX MONTHS BEFORE THIS ARREST, HE SAW
BRINEGAR IN A MISSOURI TOWN, WHERE LIQUOR IS LAWFUL, LOADING LIQUOR
INTO A TRUCK, NOT THE CAR IN THIS CASE.  THAT IS ALL.  THE COURT FROM
THAT DRAWS THE INFERENCE WHICH THE COURTS BELOW, FAMILIAR WE PRESUME
WITH THE LOCAL CONDITIONS, REFUSED TO DRAW, VIZ., THAT TO BE SEEN
LOADING LIQUOR INTO A TRUCK WHERE IT IS LAWFUL IS PROOF THAT DEFENDANT
IS UNLAWFULLY TRAFFICKING IN LIQUOR SOME DISTANCE AWAY.  THERE IS NOT,
AS IN THE CARROLL CASE, EVIDENCE THAT HE WAS OFFERING LIQUOR FOR SALE
TO ANYBODY AT ANY TIME.  IN THE CARROLL CASE, THE OFFER TO SELL LIQUOR
TO THE OFFICERS WOULD ITSELF HAVE BEEN A LAW VIOLATION.  IT SEEMS
RATHER FOGGY REASONING TO SAY THAT THE COURTS ARE OBLIGED TO DRAW THE
SAME CONCLUSION FROM LEGAL CONDUCT AS FROM ILLEGAL CONDUCT. 

I THINK WE CANNOT SAY THE LOWER COURTS WERE WRONG AS MATTER OF LAW IN
HOLDING THAT THERE WAS NO PROBABLE CAUSE UP TO THE TIME THE CAR WAS PUT
OFF THE ROAD AND STOPPED, AND THAT WE CANNOT SAY IT WAS PROPER TO
CONSIDER THE DEFICIENCY SUPPLIED BY WHAT FOLLOWED.  WHEN THESE OFFICERS
ENGAGED IN A CHASE AT SPEEDS DANGEROUS TO THOSE WHO PARTICIPATED, AND
TO OTHER LAWFUL WAYFARERS, AND DITCHED THE DEFENDANT'S CAR, THEY WERE
EITHER TAKING THE INITIAL STEPS IN ARREST, SEARCH AND SEIZURE, OR THEY
WERE COMMITTING A COMPLETELY LAWLESS AND UNJUSTIFIABLE ACT.  THAT THEY
INTENDED TO SET OUT ON A SEARCH IS UNQUESTIONED, AND THERE SEEMS NO
REASON TO DOUBT THAT IN THEIR OWN MINDS THEY THOUGHT THERE WAS CAUSE
AND RIGHT TO SEARCH.  THEY HAVE DONE EXACTLY WHAT THEY WOULD HAVE DONE,
AND DONE RIGHTFULLY, IF THEY HAD BEEN EXECUTING A WARRANT.  AT ALL
EVENTS, WHATEVER IT MAY HAVE LACKED TECHNICALLY OF ARREST, SEARCH AND
SEIZURE, IT WAS A FORM OF COERCION AND DURESS UNDER COLOR OF OFFICIAL
AUTHORITY - AND A VERY FORMIDABLE TYPE OF DURESS AT THAT. 

I DO NOT, OF COURSE, CONTEND THAT OFFICIALS MAY NEVER STOP A CAR ON
THE HIGHWAY WITHOUT THE HALTING BEING CONSIDERED AN ARREST OR A
SEARCH.  REGULATIONS OF TRAFFIC, IDENTIFICATIONS WHERE PROPER, TRAFFIC
CENSUS, QUARANTINE REGULATIONS, AND MANY OTHER CAUSES GIVE OCCASION TO
STOP CARS IN CIRCUMSTANCES WHICH DO NOT IMPLY ARREST OR CHARGE OF
CRIME.  AND TO TRAIL OR PURSUE A SUSPECTED CAR TO ITS DESTINATION, TO
OBSERVE IT AND KEEP IT UNDER SURVEILLANCE, IS NOT IN ITSELF AN ARREST
NOR A SEARCH.  BUT WHEN A CAR IS FORCED OFF THE ROAD, SUMMONED TO STOP
BY A SIREN, AND BROUGHT TO A HALT UNDER SUCH CIRCUMSTANCES AS ARE HERE
DISCLOSED, WE THINK THE OFFICERS ARE THEN IN THE POSITION OF ONE WHO
HAS ENTERED A HOME:  THE SEARCH AT ITS COMMENCEMENT MUST BE VALID AND
CANNOT BE SAVED BY WHAT IT TURNS UP.  JOHNSON V. UNITED STATES, 333
U.S. 10; MCDONALD V. UNITED STATES, 335 U.S. 451; AND SEE NUESLEIN V.
DISTRICT OF COLUMBIA, 73 APP. D.C. 85, 115 F.2D 690. 

THE FINDINGS OF THE TWO COURTS BELOW MAKE IT CLEAR THAT THIS SEARCH
BEGAN AND PROCEEDED THROUGH CRITICAL AND COERCIVE PHASES WITHOUT THE
JUSTIFICATION OF PROBABLE CAUSE.  WHAT IT YIELDED CANNOT SAVE IT.  I
WOULD REVERSE THE JUDGMENT.    FN1  THE CARROLL CASE WAS BASED ON THE
NATIONAL PROHIBITION ACT, 41 STAT. 305.  SECTION 26 OF THAT STATUTE
PROVIDED THAT WHEN AN OFFICER DISCOVERED ANY PERSON TRANSPORTING LIQUOR
IN VIOLATION OF THE LAW, IN ANY VEHICLE, IT WAS THE OFFICER'S DUTY TO
SEIZE THE LIQUOR, TAKE POSSESSION OF THE VEHICLE, AND ARREST ANY PERSON
FOUND IN CHARGE THEREOF.  THE OFFICER WAS REQUIRED TO PROCEED AT ONCE
AGAINST ANY SUCH PERSON BUT, IF NO ONE WAS FOUND CLAIMING THE VEHICLE,
IT WAS TO BE SOLD AFTER APPROPRIATE NOTICE AND THE PROCEEDS PAID INTO
THE TREASURY.  SECTION 25 OF THE ACT AUTHORIZED SEARCH WARRANTS FOR
PRIVATE DWELLINGS BUT ONLY IF THEY WERE BEING USED IN THE ILLICIT
LIQUOR BUSINESS. 

IT HAD BEEN PROPOSED TO AMEND THE STATUTE TO FORBID SEARCH OF AN
AUTOMOBILE WITHOUT WARRANT.  AFTER DISAGREEMENT BETWEEN THE HOUSE AND
THE SENATE, THAT RESTRICTION WAS FINALLY REJECTED.  IN THE CARROLL
CASE, THE LEGISLATIVE HISTORY OF THIS PROPOSED (STANLEY) AMENDMENT WAS
CONSIDERED AT LENGTH.  267 U.S. 144-146.  THE COURT THEN CONCLUDED, 267
U.S. 147, THAT, WITHOUT THE AMENDMENT, THE ACT "LEFT THE WAY OPEN FOR
SEARCHING AN AUTOMOBILE  ... WITHOUT A WARRANT, IF THE SEARCH WAS NOT
MALICIOUS OR WITHOUT PROBABLE CAUSE."  AND IT STATED THE ISSUE THUS:
"THE INTENT OF CONGRESS TO MAKE A DISTINCTION BETWEEN THE NECESSITY FOR
A SEARCH WARRANT IN THE SEARCHING OF PRIVATE DWELLINGS AND IN THAT OF
AUTOMOBILES AND OTHER ROAD VEHICLES IS N THE ENFORCEMENT OF THE
PROHIBITION ACT IS THUS CLEARLY ESTABLISHED BY THE LEGISLATIVE HISTORY
OF THE STANLEY AMENDMENT.  IS SUCH A DISTINCTION CONSISTENT WITH THE
FOURTH AMENDMENT?  ...  " 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE MURPHY JOIN IN THIS OPINION. 

..END :





















EISLER V. UNITED STATES, 338 U.S. 189 


NO. 255.  ARGUED MARCH 28, 1949.  - DECIDED JUNE 27, 1949. 


IN VIEW OF PETITIONER'S FLIGHT FROM THE COUNTRY AFTER THE GRANT OF HIS
PETITION FOR WRIT OF CERTIORARI AND AFTER THE SUBMISSION OF THE CAUSE
ON THE MERITS, WHICH MAY HAVE RENDERED MOOT ANY JUDGMENT ON THE MERITS,
THE CAUSE WILL BE REMOVED FROM THE DOCKET AND, AFTER THIS TERM, WILL BE
LEFT OFF THE DOCKET UNTIL A DIRECTION TO THE CONTRARY SHALL ISSUE.  P.
190. 

EISLER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PETITIONER WAS CONVICTED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA FOR A VIOLATION OF R.S. SEC. 102, AS AMENDED, 2
U.S.C. SEC. 192.  THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT AFFIRMED THE CONVICTION.  83 U.S. APP. D.C. 315,
170 F.2D 273.  THIS COURT GRANTED CERTIORARI.  335 U.S. 857.  THE CAUSE
IS REMOVED FROM THE DOCKET UNTIL FURTHER ORDER OF THE COURT, P. 190. 

PER CURIAM. 

PETITIONER'S FLIGHT FROM THE COUNTRY AFTER THE GRANT OF HIS PETITION
FOR WRIT OF CERTIORARI AND AFTER THE SUBMISSION OF HIS CAUSE ON THE
MERITS NECESSITATES A DECISION AS TO THE DISPOSITION NOW TO BE MADE OF
THIS CASE.  SINCE THE PETITIONER BY HIS OWN VOLITION MAY HAVE RENDERED
MOOT ANY JUDGMENT ON THE MERITS, WE MUST, AS A MATTER OF OUR OWN
PRACTICE, DECIDE WHETHER THE SUBMISSION SHOULD BE SET ASIDE AND THE
WRIT OF CERTIORARI DISMISSED OR WHETHER WE SHOULD POSTPONE REVIEW
INDEFINITELY BY ORDERING THE CASE REMOVED FROM THE DOCKET, PENDING THE
RETURN OF THE FUGITIVE. 

OUR PRACTICE, HOWEVER, HAS BEEN TO ORDER SUCH CASES TO BE REMOVED
FROM THE DOCKET.  SMITH V. UNITED STATES, 94 U.S. 97; BONAHAN V.
NEBRASKA, 125 U.S. 692.  WE ADHERE TO THOSE PRECEDENTS.  ACCORDINGLY
AFTER THIS TERM THE CAUSE WILL BE LEFT OFF THE DOCKET UNTIL A DIRECTION
TO THE CONTRARY SHALL ISSUE. 

WHILE MR. JUSTICE BURTON HAS NOT PARTICIPATED IN THE CONSIDERATION OF
THE MERITS OF THIS CASE, HE HAS PARTICIPATED IN THIS PROCEDURAL ACTION
BASED UPON THE MEMORANDUM FILED BY THE UNITED STATES OF AMERICA CALLING
THE ATTENTION OF THE COURT TO THE PETITIONER'S FLIGHT FROM JUSTICE. 

MR. JUSTICE FRANKFURTER, WITH WHOM THE CHIEF JUSTICE JOINS,
DISSENTING. 

THE GOVERNMENT HAS BROUGHT TO THE COURT'S ATTENTION THE CIRCUMSTANCES
WHICH, IN ITS VIEW, HAVE DEPRIVED THE COURT OF JURISDICTION TO
ADJUDICATE THIS CASE.  ACCORDINGLY THE GOVERNMENT, BY WAY OF
SUGGESTION, HAS MOVED THE COURT FOR ITS DISMISSAL.  THE MOTION SHOULD
BE GRANTED FOR THE FOLLOWING REASONS: 

1.  EISLER WAS CONVICTED FOR CONTEMPT OF CONGRESS BY THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AND INVOKED THE
JURISDICTION OF THIS COURT BY A PETITION FOR CERTIORARI FILED AUGUST
31, 1948, SEEKING THE DETERMINATION OF QUESTIONS SOME OF WHICH AT LEAST
WE REGARDED AS IMPORTANT ENOUGH TO WARRANT REVIEW.  WE ACCORDINGLY
GRANTED HIS PETITION.  335 U.S. 857.  THE CASE WAS ARGUED MARCH 28,
1949, AND AWAITED ONLY FINAL DISPOSITION WHEN, ON MAY 6, 1949, THE
PETITIONER FLED THE UNITED STATES.  ON MAY 13, THE ATTORNEY GENERAL
REQUESTED THE SECRETARY OF STATE TO MAKE APPLICATION THROUGH THE USUAL
DIPLOMATIC CHANNELS FOR THE RETURN OF EISLER TO THE UNITED STATES. 
THAT APPLICATION WAS MADE, IT WAS RESISTED BY EISLER, AND ON MAY 27 THE
ENGLISH COURT WITH FINAL AUTHORITY IN SUCH MATTERS DISMISSED IT ON THE
GROUND THAT THE CRIME FOR WHICH EISLER'S EXTRADITION WAS SOUGHT - THE
MAKING OF FALSE STATEMENTS IN AN APPLICATION FOR AN EXIT PERMIT - WAS
NOT EXTRADITABLE.  SINCE THEN EISLER HAS FORMALLY REPUDIATED THE
JURISDICTION OF THIS COUNTRY AND HAS BEEN ELECTED TO POLITICAL OFFICE
IN A FOREIGN COUNTRY.  THE ATTORNEY GENERAL HAS ABANDONED ALL ATTEMPTS
TO SECURE HIS RETURN.  THE UPSHOT IS THAT THE ABSTRACT QUESTIONS
BROUGHT BEFORE THE COURT BY EISLER ARE NO LONGER ATTACHED TO ANY
LITIGANT.  NO MATTER REMAINS BEFORE US AS TO WHICH WE COULD ISSUE
PROCESS. 

2.  VERY EARLY AFTER THE REPUBLIC WAS FOUNDED IT WAS CONFRONTED BY AN
EMERGENCY IN WHICH ITS VERY EXISTENCE WAS THREATENED.  SERIOUS
QUESTIONS TOUCHING THE LEGAL POWER OF THE PRESIDENT TO DEAL WITH THE
CRISIS AROSE, AND WASHINGTON SOUGHT ANSWERS TO THESE LEGAL QUESTIONS
FROM THIS COURT.  EVEN UNDER CIRCUMSTANCES SO COMPELLING, THE FIRST
CHIEF JUSTICE AND HIS ASSOCIATES HAD TO DENY PRESIDENT WASHINGTON'S
REQUEST FOR AID BECAUSE THE CONSTITUTION GAVE THIS COURT NO POWER TO
GIVE ANSWERS TO LEGAL QUESTIONS AS SUCH BUT MERELY THE AUTHORITY TO
DECIDE THEM WHEN A LITIGANT WAS BEFORE THE COURT.  SEE 3 JOHNSTON,
CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 486(1891); 10 SPARKS,
WRITINGS OF GEORGE WASHINGTON 542(1840).  THAT RECOGNITION OF THE
LIMITED POWER OF THIS COURT HAS BEEN UNQUESTIONED EVER SINCE 1793.  IT
HAS BEEN THE PRINCIPLE BY WHICH CASES FORMALLY BEFORE THE COURT HAVE
AGAIN AND AGAIN BEEN DISMISSED AS BEYOND ITS JURISDICTION.  THE
CIRCUMSTANCES WHICH HAVE CALLED FORTH APPLICATION OF THE PRINCIPLE HAVE
VARIED GREATLY, BUT ALL THE INSTANCES OF ITS APPLICATION ILLUSTRATE AND
CONFIRM THE BASIC LIMITATION UNDER WHICH THIS COURT FUNCTIONS, NAMELY,
THAT IT CAN ENTERTAIN A CASE AND DECIDE IT ONLY IF THERE IS A LITIGANT
BEFORE IT AGAINST WHOM THE COURT MAY ENFORCE ITS DECISION. 

3.  IF LEGAL QUESTIONS BROUGHT BY A LITIGANT ARE TO REMAIN HERE, THE
LITIGANT MUST STAY WITH THEM.  WHEN HE WITHDRAWS HIMSELF FROM THE POWER
OF THE COURT TO ENFORCE ITS JUDGMENT, HE ALSO WITHDRAWS THE QUESTIONS
WHICH HE HAD SUBMITTED TO THE COURT'S ADJUDICATION.  THE QUESTIONS
BROUGHT BY EISLER HAVE EVAPORATED SO FAR AS THE COURT'S POWER TO DEAL
WITH THEM IS CONCERNED BECAUSE THE RIGHTS AND OBLIGATIONS OF A LITIGANT
NO LONGER DEPEND ON THEIR ANSWER.  THE COURT THEREFORE LACKS
JURISDICTION AS IT LACKED JURISDICTION TO ANSWER WASHINGTON'S
QUESTIONS.  NOT TO DISMISS THE CASE FOR WANT OF JURISDICTION CAN ONLY
MEAN THAT THE COURT HAS JURISDICTION AND THEREFORE MUST RETAIN THE
CASE.  AND THIS, IN TURN, CAN ONLY MEAN THAT THE COURT'S EVENTUAL
ACTION MUST AWAIT THE PLEASURE OF EISLER AND OF EVERY FUTURE LITIGANT
WHO, HAVING INVOKED THE COURT'S JURISDICTION, WITHDRAWS HIMSELF BEYOND
THE MEANS OF ASSERTING IT.  EISLER'S POLITICAL AFFILIATION, OF COURSE,
DOES NOT DISTINGUISH HIM FROM OTHER LITIGANTS.  IT WAS IRRELEVANT WHEN
THE COURT TOOK HIS CASE AT A TIME THAT IT HAD JURISDICTION OVER HIM; IT
IS EQUALLY IRRELEVANT TO RECOGNITION OF THE FACT THAT EISLER HAS PUT
HIMSELF DEFINITIVELY BEYOND THE COURT'S PROCESS WERE IT TO DECIDE
AGAINST HIM.  SINCE THE COURT IS WITHOUT POWER EFFECTIVELY TO DECIDE
AGAINST HIM, IT IS WITHOUT POWER TO DECIDE AT ALL.  IN SHORT, THE COURT
NO LONGER HAS JURISDICTION, AND IT WOULD BE EQUALLY WITHOUT
JURISDICTION IF EISLER WERE THE BOURBON PRETENDER. 

4.  THIS CASE HAS NOTHING IN COMMON WITH INSTANCES CITED AS PRECEDENT
FOR LEAVING IT OFF THE DOCKET UNTIL A DIRECTION TO THE CONTRARY SHALL
ISSUE.  SMITH V. UNITED STATES, 94 U.S. 97; BONAHAN V. NEBRASKA, 125
U.S. 692.  IN THOSE CASES CONVICTS HAD BROKEN JAIL WHILE THEIR CASES
WERE PENDING IN THIS COURT AND REMAINED AT LARGE.  AS A MATTER OF
PRACTICAL GOOD SENSE, APPARENTLY UPON INFORMAL SUGGESTION, THE COURT
SUSPENDED DISPOSITION OF THE CASES UNTIL IT SHOULD RECEIVE WORD FROM
THE SHERIFF WHO REPORTED THE ESCAPE THAT A RECAPTURE HAD BEEN
ACCOMPLISHED.  SUCH JAILBREAKS, INDEED, AS OFTEN AS NOT IMPLY A MERELY
TEMPORARY SEPARATION FROM CONFINEMENT.  BUT WHATEVER MAY BE THOUGHT OF
SUCH A LIGHT-REINED WAY OF DEALING WITH A JAILBREAK FROM OUR LOCAL
JAILS, THE SITUATION PRESENTED BY THIS CASE IS TOTALLY DIFFERENT.  HERE
WE HAVE THE MOST FORMAL KIND OF RESISTANCE TO THE JURISDICTION OF THIS
COURT.  IT HAS BEEN ADJUDICATED SUCCESSFUL, AND THE ATTORNEY GENERAL
HAS HAD TO YIELD.  SINCE THE COURT'S POWER TO REASSERT JURISDICTION HAS
BEEN INCONTESTABLY DENIED, THE MOTION SHOULD BE GRANTED. 

MR. JUSTICE MURPHY, DISSENTING. 

THE PETITIONER IS AN ALIEN, A COMMUNIST, AND A FUGITIVE FROM
JUSTICE.  HE WAS CONVICTED OF WILLFUL DEFAULT BEFORE A COMMITTEE OF
CONGRESS.  WE DECIDED TO HEAR THIS CASE AFTER DETERMINING THAT THE
ISSUES HE PRESENTED WERE OF IMPORTANCE.  WE HEARD ARGUMENT, READ
BRIEFS, AND ALL BUT MADE THE ANNOUNCEMENT OF OUR DECISION. 

THEN THE PETITIONER LEFT THE COUNTRY.  EFFORTS AT EXTRADITION IN
GREAT BRITAIN WERE UNSUCCESSFUL.  THE PETITIONER IS NOW BEYOND THE
TERRITORIAL JURISDICTION OF THIS COURT.  IT IS ARGUED THAT WE ARE
THEREFORE WITHOUT JURISDICTION IN THE CASE. 

WE CAN DECIDE ONLY CASES OR CONTROVERSIES.  A MOOT CASE IS NOT A
"CASE" WITHIN THE MEANING OF ART. III.  UNITED STATES V. EVANS, 213
U.S. 297.  BUT A MOOT CASE IS ONE IN WHICH THE PARTICULAR CONTROVERSY
CONFRONTING THE COURT HAS ENDED.  THAT IS NOT TRUE WHEN A PRISONER HAS
SIMPLY ESCAPED.  WE ARE NOT AT LIBERTY TO ASSUME THAT ALL ESCAPED
DEFENDANTS WILL NEVER RETURN TO THE JURISDICTION.  AND THE IMPORTANCE
OF A CRIMINAL JUDGMENT IS NOT LIMITED TO THE IMPRISONMENT OF THE
DEFENDANT.  THUS AN ALIEN CONVICTED OF CRIME IS EXCLUDED FROM ADMISSION
TO THE UNITED STATES, 8 U.S.C. SEC. 136(E). 

SINCE THE QUESTION IS ONE OF JURISDICTION, THE UNLIKELIHOOD OF
PREJUDICE TO THIS PETITIONER IS IRRELEVANT.  EQUALLY IRRELEVANT ON THE
QUESTION OF MOOTNESS IS PRESIDENT WASHINGTON'S REQUEST FOR AN ADVISORY
OPINION.  THAT THE CASE MAY BECOME MOOT IF A DEFENDANT DOES NOT RETURN
DOES NOT DISTINGUISH IT FROM ANY OTHER CASE WE DECIDE.  FOR SUBSEQUENT
EVENTS MAY RENDER ANY DECISION NUGATORY.  THE PETITIONER HAVING
SUBJECTED HIMSELF TO OUR JURISDICTION BY FILING A PETITION FOR REVIEW,
HE CANNOT NOW REVOKE OR NULLIFY IT AND THUS PREVENT AN ADJUDICATION OF
THE QUESTIONS AT ISSUE MERELY BY LEAVING THE COUNTRY AND REPUDIATING
ITS AUTHORITY.  THUS I ENTIRELY AGREE WITH THOSE OF MY BRETHREN WHO
BELIEVE WE HAVE JURISDICTION. 

BUT THE COURT ADOPTS ANOTHER ALTERNATIVE.  IT EXERCISES ITS
DISCRETION AND REFUSES TO DECIDE THE ISSUE.  IT IS CLEAR, HOWEVER, AS
MR. JUSTICE JACKSON POINTS OUT, THAT IT IS THE IMPORTANCE OF THE LEGAL
ISSUES, NOT THE PARTIES, WHICH BRING THE CASE TO THIS COURT.  THOSE
ISSUES DID NOT LEAVE WHEN EISLER DID.  THEY REMAIN HERE FOR DECISION;
THEY ARE OF THE UTMOST IMPORTANCE TO THE PROFESSION AND TO THE PUBLIC. 

LAW IS AT ITS LOFTIEST WHEN IT EXAMINES CLAIMED INJUSTICE EVEN AT THE
INSTANCE OF ONE TO WHOM THE PUBLIC IS BITTERLY HOSTILE.  WE SHOULD BE
LOATH TO SHIRK OUR OBLIGATIONS, WHATEVER THE CREED OF THE PARTICULAR
PETITIONER.  OUR COUNTRY TAKES PRIDE IN REQUIRING OF ITS INSTITUTIONS
THE EXAMINATION AND CORRECTION OF ALLEGED INJUSTICE WHENEVER IT
OCCURS.  WE SHOULD NOT PERMIT AN AFFRONT OF THIS SORT TO DISTRACT US
FROM THE PERFORMANCE OF OUR CONSTITUTIONAL DUTIES. 

I DISSENT. 

MR. JUSTICE JACKSON, DISSENTING. 

I CANNOT AGREE THAT A DECISION OF EISLER'S CASE SHOULD BE
INDEFINITELY DEFERRED, AWAITING WHAT I DO NOT KNOW.  THE CASE IS FULLY
SUBMITTED AND ALL THAT REMAINS IS FOR MEMBERS OF THE COURT TO HAND DOWN
THEIR OPINIONS AND THE DECISION.  EISLER'S PRESENCE FOR THAT WOULD BE
NEITHER NECESSARY NOR USUAL.  THE CASE HAS REACHED THIS STAGE AT
CONSIDERABLE DETRIMENT TO THE COUNTRY, SINCE THIS COURT'S GRANT OF HIS
PETITION FOR REVIEW WAS WHAT DELAYED EISLER'S COMMENCEMENT OF SENTENCE
AND AFFORDED HIM OPPORTUNITY TO ESCAPE.  IF EVER THERE WERE GOOD
REASONS TO GRANT HIM A REVIEW, THEY ARE EQUALLY GOOD REASONS FOR NOW
DECIDING ITS ISSUES. 

THE RULES OF THIS COURT PROVIDE THAT WE SHALL GRANT A PETITION FOR
REVIEW HERE ONLY WHERE THERE ARE "SPECIAL AND IMPORTANT REASONS
THEREFOR."  THEY LIMIT SUCH CASES TO THOSE THAT PRESENT "A QUESTION OF
GENERAL IMPORTANCE  ...  WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY
THIS COURT."  RULE 38. 

UNDER OUR PRACTICE, THE GRANT OF EISLER'S PETITION MEANT THAT FOUR
JUSTICES OF THIS COURT, AT LEAST, WERE IN AGREEMENT THAT THE QUESTIONS
HE RAISED WERE OF THIS DESCRIPTION.  IF THEY WERE THEN, THEY ARE
STILL.  HIS PETITION CHALLENGED THE POWER OF CONGRESS AND ITS
INVESTIGATING COMMITTEES TO HOLD, AND TO CONTROL THE PROCEDURES OF,
INVESTIGATIONS OF THIS NATURE.  THESE QUESTIONS ARE RECURRING ONES,
CERTAIN TO BE REPEATED, FOR THE GRANT OF A REVIEW HAS CAST DOUBT NOT
ONLY ON THE VALIDITY OF EISLER'S CONVICTION BUT UPON CONGRESSIONAL
PROCEDURES AS WELL.  NO ONE CAN KNOW WHAT THE LAW IS UNTIL THIS CASE IS
DECIDED OR UNTIL SOMEONE CAN CARRY A LIKE CASE THROUGH THE TWO LOWER
COURTS AGAIN TO GET THE QUESTION HERE. 

DECISION AT THIS TIME IS NOT URGED AS A FAVOR TO EISLER.  IF ONLY HIS
INTERESTS WERE INVOLVED, THEY MIGHT WELL BE FORFEITED BY HIS FLIGHT. 
BUT IT IS DUE TO CONGRESS AND TO FUTURE WITNESSES BEFORE ITS COMMITTEES
THAT WE HAND DOWN A FINAL DECISION.  I THEREFORE DISSENT FROM AN
EXPEDIENT THAT LENDS ADDED CREDENCE TO EISLER'S PETITION, WHICH I THINK
IS WITHOUT LEGAL MERIT.  I DO NOT THINK WE CAN RUN AWAY FROM THE CASE
JUST BECAUSE EISLER HAS. 

I SHOULD NOT WANT TO BE UNDERSTOOD AS APPROVING THE USE THAT THE
COMMITTEE ON UN-AMERICAN ACTIVITIES HAS FREQUENTLY MADE OF ITS POWER. 
BUT I THINK IT WOULD BE AN UNWARRANTED ACT OF JUDICIAL USURPATION TO
STRIP CONGRESS OF ITS INVESTIGATORY POWER, OR TO ASSUME FOR THE COURTS
THE FUNCTION OF SUPERVISING CONGRESSIONAL COMMITTEES.  I SHOULD AFFIRM
THE JUDGMENT BELOW AND LEAVE THE RESPONSIBILITY FOR THE BEHAVIOR OF ITS
COMMITTEES SQUARELY ON THE SHOULDERS OF CONGRESS.  FN1 

FN1  WHAT THE CONGRESS CAN WITH SAFETY DO, AFTER THIS COURT'S
DECISION IN CHRISTOFFEL V. UNITED STATES, ANTE, P. 84, SEEMS TO PRESENT
A GOOD QUESTION. 
..END :










UNITED STATES V. I.C.C., 337 U.S. 426 


NO. 330.  ARGUED MARCH 2, 1949.  - DECIDED JUNE 20, 1949.  - 78 F.SUPP. 
580, REVERSED. 


THE UNITED STATES, AS A SHIPPER, HAVING UNDERTAKEN TO PROVIDE WHARFAGE
AND HANDLING SERVICES AT CERTAIN PIERS, REQUESTED THE RAILROADS TO MAKE
AN ALLOWANCE FOR EXPENSES THUS INCURRED, SINCE THE SHIPSIDE RATES
ALLEGEDLY INCLUDED CHARGES FOR WHARFAGE AND HANDLING SERVICES.  THE
RAILROADS REFUSED TO MAKE AN ALLOWANCE AND TO PERFORM THE SERVICES. 
THE UNITED STATES THEREUPON FILED WITH THE INTERSTATE COMMERCE
COMMISSION A COMPLAINT ALLEGING THAT, IN REFUSING TO MAKE AN ALLOWANCE
FOR WHARFAGE AND HANDLING SERVICES, THE RAILROADS HAD EXACTED PAYMENT
OF RATES WHICH WERE UNREASONABLE, UNJUSTLY DISCRIMINATORY, AND
OTHERWISE IN VIOLATION OF THE INTERSTATE COMMERCE ACT, AND ASKING THAT
THE COMMISSION FIND THE CHARGES UNLAWFUL AND AWARD THE GOVERNMENT
REPARATIONS.  THE COMMISSION DENIED REPARATIONS AND ORDERED THE
COMPLAINT DISMISSED.  THE UNITED STATES THEN SUED IN THE DISTRICT COURT
TO SET ASIDE THE COMMISSION ORDER.  THE INTERSTATE COMMERCE COMMISSION
AND THE UNITED STATES ITSELF WERE MADE DEFENDANTS.  THE DISTRICT COURT,
COMPOSED OF THREE JUDGES, DISMISSED THE SUIT.  ON DIRECT APPEAL TO THIS
COURT, HELD:  THE DISMISSAL OF THE SUIT WAS ERROR AND THE CASE SHOULD
HAVE BEEN CONSIDERED ON ITS MERITS.  PP. 428-430. 

1.  ALTHOUGH THE CASE BE THAT OF UNITED STATES V. UNITED STATES ET
AL., THE PRINCIPLE THAT A PERSON MAY NOT MAINTAIN AN ACTION AGAINST
HIMSELF IS INAPPLICABLE, SINCE THERE ARE INVOLVED HERE CONTROVERSIES OF
A TYPE WHICH ARE TRADITIONALLY JUSTICIABLE.  PP. 430-431. 

2.  PROVISIONS OF LAW MAKING THE UNITED STATES A STATUTORY DEFENDANT
IN COURT ACTIONS CHALLENGING COMMISSION ORDERS DO NOT EVIDENCE A
CONGRESSIONAL PURPOSE TO BAR THE GOVERNMENT FROM CHALLENGING SUCH
ORDERS.  PP. 431-432. 

(A)  CONGRESS DID NOT INTEND TO MAKE IT IMPOSSIBLE FOR THE GOVERNMENT
TO PRESS A JUST CLAIM WHICH COULD BE VINDICATED ONLY BY CHALLENGING A
COMMISSION ORDER IN COURT.  P. 431. 

(B)  HOWEVER ANOMALOUS IT MAY BE FOR THE ATTORNEY GENERAL TO APPEAR
ON BOTH SIDES OF THE SAME CONTROVERSY, NOTHING IN THE INTERSTATE
COMMERCE ACT INDICATES A CONGRESSIONAL PURPOSE TO AMEND PRIOR STATUTES
WHICH IMPOSED PRIMARY RESPONSIBILITY ON THE ATTORNEY GENERAL TO SEEK
JUDICIAL REDRESS FOR THE GOVERNMENT.  PP. 431-432. 

(C)  THE INTERSTATE COMMERCE ACT CONTAINS ADEQUATE PROVISIONS FOR
PROTECTION OF COMMISSION ORDERS BY THE COMMISSION AND BY THE RAILROADS
WHEN, AS HERE, THEY ARE THE REAL PARTIES IN INTEREST; AND THE
COMMISSION AND THE RAILROADS IN THIS CASE HAVE AVAILED THEMSELVES OF
THE STATUTORY AUTHORIZATION.  P. 432. 

3.  THE DISTRICT COURT HAD JURISDICTION OF THE ACTION UNDER 28 U.S.C.
SEC. 41(28)(NOW SEC. 1336), AND THAT JURISDICTION WAS NOT BARRED IN
THIS CASE BY SEC. 9 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 9. 
PP. 432-440. 

(A)  SECTION 9 DOES NOT GIVE COMPLETE FINALITY TO A COMMISSION ORDER
MERELY BECAUSE A SHIPPER ELECTED TO FILE A COMPLAINT WITH THE
COMMISSION.  PP. 433-440. 

(B)  A COMMISSION ORDER DISMISSING A SHIPPER'S CLAIM FOR DAMAGES
UNDER 49 U.S.C. SEC. 9 IS AN "ORDER" SUBJECT TO CHALLENGE UNDER 28
U.S.C. SEC. 41(28)(NOW SEC. 1336).  PP. 440-441. 

4.  JUDICIAL REVIEW OF A COMMISSION ORDER DENYING REPARATIONS DOES
NOT REQUIRE A THREE-JUDGE COURT.  PP. 441-443. 

5.  THE FACT THAT THIS CASE WAS HEARD AND DETERMINED BY A DISTRICT
COURT OF THREE JUDGES, RATHER THAN BY ONE JUDGE, DOES NOT REQUIRE
DISMISSAL HERE; AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR
DETERMINATION ON THE MERITS OF THE ALLEGATIONS OF THE COMPLAINT.  PP.
443-444. 

UNITED STATES V. INTERSTATE COMMERCE COMMISSION ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

A DISTRICT COURT OF THREE JUDGES DISMISSED A SUIT BROUGHT BY THE
UNITED STATES TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION (269 I.C.C. 141) DENYING AN AWARD OF REPARATIONS TO THE
GOVERNMENT AS A SHIPPER.  78 F.SUPP.  580.  THE UNITED STATES TOOK A
DIRECT APPEAL TO THIS COURT.  REVERSED AND REMANDED, P. 444. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IT IS CONTENDED HERE THAT THE UNITED STATES AS A SHIPPER IS BARRED
FROM CHALLENGING IN FEDERAL COURTS AN INTERSTATE COMMERCE COMMISSION
ORDER WHICH DENIES THE GOVERNMENT A RECOVERY IN DAMAGES FOR EXACTION OF
AN ALLEGEDLY UNLAWFUL RAILROAD RATE.  OTHER CONTENTIONS IF SUSTAINED
WOULD DENY FEDERAL COURTS ALL POWER TO ENTERTAIN AN ACTION BY ANY
SHIPPER CHALLENGING A COMMISSION ORDER DENYING DAMAGES TO THE SHIPPER. 

DURING THE WAR, EXISTING TARIFFS OF MANY RAILROADS EMBODIED WHARFAGE
CHARGES TO COMPENSATE THE RAILROADS FOR MOVING GOODS FROM RAILROAD CARS
TO PIERS AND FROM PIERS TO RAILROAD CARS.  WHEN THE UNITED STATES TOOK
OVER CERTAIN PIERS AT NORFOLK, VIRGINIA, IT BEGAN TO PERFORM THESE
WHARFAGE SERVICES FOR ITSELF AND REQUESTED THE RAILROADS TO MAKE THE
UNITED STATES AN ALLOWANCE FOR THE EXPENSES INCURRED IN PERFORMING THE
SERVICES.  THE RAILROADS REFUSED TO MAKE AN ALLOWANCE.  UPON THIS
REFUSAL THE GOVERNMENT REQUESTED THE RAILROADS TO PERFORM THE SERVICES
THEMSELVES.  THE RAILROADS REFUSED TO PERFORM THE SERVICES. 

THE UNITED STATES FILED WITH THE INTERSTATE COMMERCE COMMISSION A
COMPLAINT AGAINST THE RAILROADS CHARGING THAT EXACTION OF PAY FOR
UNPERFORMED SERVICES WAS UNJUST, UNREASONABLE, DISCRIMINATORY,
EXCESSIVE, AND IN VIOLATION OF CERTAIN SECTIONS OF THE INTERSTATE
COMMERCE ACT.  FN1  THE COMPLAINT ASKED THE COMMISSION TO FIND THE
CHARGES UNLAWFUL.  FURTHER RELIEF ASKED, UNDER THE INTERSTATE COMMERCE
ACT,  FN2  WAS THAT THE GOVERNMENT BE AWARDED DAMAGES (REPARATIONS) ON
ACCOUNT OF THE ALLEGED UNLAWFUL EXACTIONS.  THE COMMISSION FOUND THAT
THE CHARGES WERE NOT UNJUSTLY DISCRIMINATORY, UNREASONABLE, OR
OTHERWISE IN VIOLATION OF THE ACT.  ACCORDINGLY, THE COMMISSION DENIED
REPARATIONS AND ORDERED THE COMPLAINT DISMISSED.  UNITED STATES V.
ABERDEEN & ROCKFISH R. CO., 269 I.C.C. 141(1947). 

THE UNITED STATES BROUGHT THIS ACTION IN A UNITED STATES DISTRICT
COURT TO SET ASIDE THE COMMISSION ORDER.  THE COMPLAINT CHARGED THAT
THE COMMISSION'S CONCLUSIONS WERE NOT SUPPORTED BY ITS FINDINGS, THAT
THE FINDINGS WERE NOT SUPPORTED BY ANY SUBSTANTIAL EVIDENCE, THAT THE
ORDER WAS BASED ON A MISAPPLICATION OF LAW AND WAS "OTHERWISE
ARBITRARY, CAPRICIOUS AND WITHOUT SUPPORT IN AND CONTRARY TO LAW AND
THE EVIDENCE."  THE INTERSTATE COMMERCE COMMISSION WAS MADE A
DEFENDANT.  THE UNITED STATES WAS ALSO MADE A DEFENDANT BECAUSE OF A
STATUTORY REQUIREMENT THAT ANY ACTION TO SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION "SHALL BE BROUGHT  ...  AGAINST THE
UNITED STATES."  28 U.S.C. (1946 ED.)  SEC.  46, NOW SEC. 2322. 
RAILROADS THAT COLLECTED THE WHARFAGE CHARGES INTERVENED AS DEFENDANTS
UNDER AUTHORITY OF 28 U.S.C. (1946 ED.)  SEC.  45A, NOW SEC. 2323.  THE
ATTORNEY GENERAL APPEARED FOR THE GOVERNMENT AS BOTH PLAINTIFF AND
DEFENDANT.  WITHOUT REACHING THE MERITS OF THE CASE, THE DISTRICT COURT
COMPOSED OF THREE JUDGES DISMISSED THE CAUSE ON THE THEORY THAT THE
GOVERNMENT COULD NOT MAINTAIN A SUIT AGAINST ITSELF.  THE COURT ALSO
INDICATED ITS BELIEF THAT A THREE-JUDGE COURT WAS WITHOUT JURISDICTION
OF THE SUIT.  78 F.SUPP.  580.  THE CASE IS HERE ON DIRECT APPEAL UNDER
28 U.S.C. (1946 ED.)  SEC.  47A, NOW SEC. 1253. 

IN THIS COURT THE COMMISSION AND THE RAILROAD INTERVENOR DEFENDANTS
SUPPORT THE DISTRICT COURT'S DISMISSAL FOR THE REASONS GIVEN BY THAT
COURT.  ALTERNATIVE REASONS ARE ALSO URGED.  WE HOLD THAT THE DISMISSAL
WAS ERROR AND THAT THE CASE SHOULD HAVE BEEN CONSIDERED ON ITS MERITS. 

FIRST.  THERE IS MUCH ARGUMENT WITH CITATION OF MANY CASES TO
ESTABLISH THE LONG-RECOGNIZED GENERAL PRINCIPLE THAT NO PERSON MAY SUE
HIMSELF.  PROPERLY UNDERSTOOD THE GENERAL PRINCIPLE IS SOUND, FOR
COURTS ONLY ADJUDICATE JUSTICIABLE CONTROVERSIES.  THEY DO NOT ENGAGE
IN THE ACADEMIC PASTIME OF RENDERING JUDGMENTS IN FAVOR OF PERSONS
AGAINST THEMSELVES.  THUS A SUIT FILED BY JOHN SMITH AGAINST JOHN SMITH
MIGHT PRESENT NO CASE OR CONTROVERSY WHICH COURTS COULD DETERMINE.  BUT
ONE PERSON NAMED JOHN SMITH MIGHT HAVE A JUSTICIABLE CONTROVERSY WITH
ANOTHER JOHN SMITH.  THIS ILLUSTRATES THAT COURTS MUST LOOK BEHIND
NAMES THAT SYMBOLIZE THE PARTIES TO DETERMINE WHETHER A JUSTICIABLE
CASE OR CONTROVERSY IS PRESENTED. 

WHILE THIS CASE IS UNITED STATES V. UNITED STATES, ET AL., IT
INVOLVES CONTROVERSIES OF A TYPE WHICH ARE TRADITIONALLY JUSTICIABLE. 
THE BASIC QUESTION IS WHETHER RAILROADS HAVE ILLEGALLY EXACTED SUMS OF
MONEY FROM THE UNITED STATES.  UNLESS BARRED BY STATUTE, THE GOVERNMENT
IS NOT LESS ENTITLED THAN ANY OTHER SHIPPER TO INVOKE ADMINISTRATIVE
AND JUDICIAL PROTECTION.  TO COLLECT THE ALLEGED ILLEGAL EXACTIONS FROM
THE RAILROADS THE UNITED STATES INSTITUTED PROCEEDINGS BEFORE THE
INTERSTATE COMMERCE COMMISSION.  IN PURSUIT OF THE SAME OBJECTIVE THE
GOVERNMENT CHALLENGED THE LEGALITY OF THE COMMISSION'S ACTION.  THIS
SUIT THEREFORE IS A STEP IN PROCEEDINGS TO SETTLE WHO IS LEGALLY
ENTITLED TO SUMS OF MONEY, THE GOVERNMENT OR THE RAILROADS.  THE ORDER
IF VALID WOULD DEFEAT THE GOVERNMENT'S CLAIM TO THAT MONEY.  BUT THE
GOVERNMENT CHARGED THAT THE ORDER WAS ISSUED ARBITRARILY AND WITHOUT
SUBSTANTIAL EVIDENCE.  THIS CHARGE ALONE WOULD BE ENOUGH TO PRESENT A
JUSTICIABLE CONTROVERSY.  CHICAGO JUNCTION CASE, 264 U.S. 258, 262
266.  CONSEQUENTLY, THE ESTABLISHED PRINCIPLE THAT A PERSON CANNOT
CREATE A JUSTICIABLE CONTROVERSY AGAINST HIMSELF HAS NO APPLICATION
HERE. 

SECOND.  IT IS CONTENDED THAT THE PROVISIONS OF THE ACT MAKING THE
GOVERNMENT A STATUTORY DEFENDANT IN COURT ACTIONS CHALLENGING
COMMISSION ORDERS, SHOW A CONGRESSIONAL PURPOSE TO BAR THE GOVERNMENT
FROM CHALLENGING SUCH ORDERS.  LEGISLATIVE HISTORY IS CITED IN SUPPORT
OF THIS CONTENTION.  IF THE CONTENTION BE ACCEPTED, CONGRESS BY MAKING
THE GOVERNMENT A STATUTORY DEFENDANT IN SUCH CASES HAS DEPRIVED THE
UNITED STATES AS A SHIPPER OF POWERS OF SELF-PROTECTION ACCORDED ALL
OTHER SHIPPERS.  WE CANNOT AGREE THAT CONGRESS INTENDED TO MAKE IT
IMPOSSIBLE FOR THE GOVERNMENT TO PRESS A JUST CLAIM WHICH COULD BE
VINDICATED ONLY BY A COURT CHALLENGE OF A COMMISSION ORDER.  SEE UNITED
STATES V. SAN JACINTO TIN CO., 125 U.S. 273, 279. 

IN SUPPORT OF THEIR CONTENTION THAT CONGRESS DID NOT INTEND FOR THE
GOVERNMENT TO PRESS ITS CLAIMS AS A SHIPPER, THE COMMISSION AND
RAILROADS EMPHASIZE THE ANOMALY OF HAVING THE ATTORNEY GENERAL APPEAR
ON BOTH SIDES OF THE SAME CONTROVERSY.  HOWEVER ANOMALOUS, THIS
SITUATION RESULTS FROM THE STATUTES DEFINING THE ATTORNEY GENERAL'S
DUTIES.  THE INTERSTATE COMMERCE ACT REQUIRES THE ATTORNEY GENERAL TO
APPEAR FOR THE GOVERNMENT AS A STATUTORY DEFENDANT IN CASES CHALLENGING
COMMISSION ORDERS.  28 U.S.C. (1946 ED.)  SEC.  45A, NOW SEC. 2323. 
THE ATTORNEY GENERAL IS ALSO UNDER A STATUTORY DUTY "TO DETERMINE WHEN
THE UNITED STATES SHALL SUE, TO DECIDE FOR WHAT IT SHALL SUE, AND TO BE
RESPONSIBLE THAT SUCH SUITS SHALL BE BROUGHT IN APPROPRIATE CASES." 
UNITED STATES V. SAN JACINTO TIN CO., 125 U.S. 273, 279.  SEE ALSO
UNITED STATES V. CALIFORNIA, 332 U.S. 19, 26-29.  NOTHING IN THE
INTERSTATE COMMERCE ACT INDICATES A CONGRESSIONAL PURPOSE TO AMEND
PRIOR STATUTES WHICH HAD IMPOSED PRIMARY RESPONSIBILITY ON THE ATTORNEY
GENERAL TO SEEK JUDICIAL REDRESS FOR THE GOVERNMENT. 

ALTHOUGH THE FORMAL APPEARANCE OF THE ATTORNEY GENERAL FOR THE
GOVERNMENT AS STATUTORY DEFENDANT DOES CREATE A SURFACE ANOMALY, HIS
REPRESENTATION OF THE GOVERNMENT AS A SHIPPER DOES NOT IN ANY WAY
PREVENT A FULL DEFENSE OF THE COMMISSION'S ORDER.  THE INTERSTATE
COMMERCE ACT CONTAINS ADEQUATE PROVISIONS FOR PROTECTION OF COMMISSION
ORDERS BY THE COMMISSION AND BY THE RAILROADS WHEN, AS HERE, THEY ARE
THE REAL PARTIES IN INTEREST.  FOR, WHETHER THE ATTORNEY GENERAL
DEFENDS OR NOT, THE COMMISSION AND THE RAILROADS ARE AUTHORIZED TO
INTERPOSE ALL DEFENSES TO THE GOVERNMENT'S CHARGES AND CLAIMS THAT CAN
BE INTERPOSED TO CHARGES AND CLAIMS OF OTHER SHIPPERS.  IN THIS CASE
THE COMMISSION AND THE RAILROADS HAVE AVAILED THEMSELVES OF THIS
STATUTORY AUTHORIZATION.  THEY HAVE VIGOROUSLY DEFENDED THE LEGALITY OF
THE ALLOWANCES AND THE VALIDITY OF THE COMMISSION ORDER AT EVERY STAGE
OF THE LITIGATION. 

THIRD.  28 U.S.C. (1946 ED.)  SEC.  41(28)  FN3  PROVIDES THAT "THE
DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION  ...  OF CASES BROUGHT
TO ENJOIN, SET ASIDE, ANNUL, OR SUSPEND IN WHOLE OR IN PART ANY ORDER
OF THE INTERSTATE COMMERCE COMMISSION."  THE LEGAL CONSEQUENCES OF THIS
ORDER IF UPHELD WILL FINALLY RELIEVE THE RAILROAD OF ANY OBLIGATIONS TO
THE GOVERNMENT ON ACCOUNT OF THE ALLEGED UNLAWFUL CHARGES; THE ORDER
THUS FALLS SQUARELY WITHIN THE TYPE MADE SUBJECT TO JUDICIAL REVIEW BY
SEC. 41(28).  ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125,
131-132, 142-143; EL DORADO OIL WORKS V. UNITED STATES, 328 U.S. 12, 18
19. 

THE COMMISSION AND THE RAILROADS CONTEND, HOWEVER, THAT SEC. 9 OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 9, BARS THE UNITED STATES OR
ANY OTHER SHIPPER FROM JUDICIAL REVIEW OF AN ORDER DENYING DAMAGES IN
REPARATION PROCEEDINGS INITIATED BEFORE THE COMMISSION.  SECTION 9
PROVIDES IN PART: 

"ANY PERSON OR PERSONS CLAIMING TO BE DAMAGED BY ANY COMMON CARRIER
...  MAY EITHER MAKE COMPLAINT TO THE COMMISSION  ...  OR MAY BRING
SUIT  ...  FOR THE RECOVERY OF THE DAMAGES  ...  IN ANY DISTRICT COURT
OF THE UNITED STATES OF COMPETENT JURISDICTION; BUT SUCH PERSON OR
PERSONS SHALL NOT HAVE THE RIGHT TO PURSUE BOTH OF SAID REMEDIES, AND
MUST IN EACH CASE ELECT WHICH ONE OF THE TWO METHODS OF PROCEDURE
HEREIN PROVIDED FOR HE OR THEY WILL ADOPT." 

THE CONTENTION OF THE COMMISSION AND THE RAILROADS AS TO SEC. 9 IS
THIS.  A SHIPPER HAS AN ALTERNATIVE.  HE MAY BRING HIS ACTION BEFORE
THE COMMISSION OR BEFORE THE COURTS.  BUT HE MUST MAKE AN ELECTION.  IF
HE ELECTS TO "BRING SUIT" IN A COURT AND IS UNSUCCESSFUL, HE RETAINS
THE CUSTOMARY RIGHT OF APPELLATE REVIEW.  IF HE ELECTS TO "MAKE
COMPLAINT TO" THE COMMISSION, AS THE GOVERNMENT DID, AND RELIEF IS
DENIED, HE IS SAID TO BE BARRED BY THE STATUTORY LANGUAGE OF SEC. 9
FROM SEEKING ANY JUDICIAL REVIEW OF THE COMMISSION ORDER.  UNDER THE
CONTENTION THE ORDER IS FINAL AND NOT REVIEWABLE BY ANY COURT EVEN
THOUGH ENTERED ARBITRARILY, WITHOUT SUBSTANTIAL SUPPORTING EVIDENCE,
AND IN DEFIANCE OF LAW. 

SUCH A SWEEPING CONTENTION FOR ADMINISTRATIVE FINALITY IS OUT OF
HARMONY WITH THE GENERAL LEGISLATIVE PATTERN OF ADMINISTRATIVE AND
JUDICIAL RELATIONSHIPS.  FN4  SEE, E.G., SHIELDS V. UTAH I.C.R. CO.,
305 U.S. 177, 181-185; STARK V. WICKARD, 321 U.S. 288, 307-310.  AND
THIS COURT HAS CONSISTENTLY HELD COMMISSION ORDERS REVIEWABLE UPON
CHARGES THAT THE COMMISSION HAD EXCEEDED ITS LAWFUL POWERS.  SEE, E.G.,
INTERSTATE COMMERCE COMMISSION V. LOUISVILLE & N.R. CO., 227 U.S. 88,
91-93; CHICAGO JUNCTION CASE, 264 U.S. 258, 266.  THE LANGUAGE OF SEC.
9 DOES NOT SUGGEST AN ABANDONMENT OF THESE CONSISTENT HOLDINGS.  IT
DOES SUGGEST THAT A SHIPPER WHO ELECTS EITHER TO "MAKE COMPLAINT TO"
THE COMMISSION OR TO "BRING SUIT" IN A COURT IS THEREAFTER PRECLUDED
FROM INITIATING A SEC. 9 PROCEEDING IN THE OTHER.  IT MAY THEREFORE BE
ASSUMED THAT AFTER A SHIPPER HAS ELECTED TO INITIATE A COMMISSION
PROCEEDING FOR DAMAGES HE COULD NOT LATER INITIATE AN ORIGINAL DISTRICT
COURT ACTION FOR THE SAME DAMAGES.  BUT FORFEITURE OF THE RIGHT TO
INITIATE HIS CLAIM IN THE COURT UNDER SEC. 9 IS ONE THING; FORFEITURE
OF HIS RIGHT UNDER 28 U.S.C. (1946 ED.)  SEC. 41(28), NOW SEC. 1336, TO
OBTAIN JUDICIAL REVIEW OF AN UNLAWFUL COMMISSION ORDER IS ANOTHER. 
BE BEGUN AND TRIED TO JUDGMENT OR ORDER; IT DOES NOT PURPORT TO GIVE
COMPLETE FINALITY TO A COURT JUDGMENT OR TO A COMMISSION ORDER MERELY
BECAUSE A SHIPPER ELECTED TO PROCEED IN ONE FORUM RATHER THAN THE
OTHER.  SO WE CAN FIND NOTHING IN THE LANGUAGE OF SEC. 9 THAT BARS A
COURT FROM REVIEWING A REPARATION ORDER UPON ALLEGATIONS BY A SHIPPER
THAT THE ORDER WAS ENTERED IN DEFIANCE OF STANDARDS ESTABLISHED BY
CONGRESS TO DETERMINE WHEN REPARATIONS ARE DUE. 

FURTHERMORE, THE SECTION'S CAREFUL PROVISION FOR JUDICIAL PROTECTION
OF RAILROADS AGAINST IMPROPER COMMISSION AWARDS ARGUES AGAINST
INTERPRETATION OF THE SAME SECTION TO DENY TO SHIPPERS ANY JUDICIAL
REVIEW WHATEVER.  UNDER THE SUGGESTED INTERPRETATION A SHIPPER COULD
RECOVER NOTHING IF THE COMMISSION DECIDED AGAINST HIM.  BUT A
COMMISSION AWARD FAVORABLE TO A SHIPPER IS NOT FINAL OR BINDING UPON
THE RAILROAD.  SUCH AN AWARD "ONLY ESTABLISHES A REBUTTABLE
PRESUMPTION.  IT CUTS OFF NO DEFENSE, INTERPOSES NO OBSTACLE TO A FULL
CONTESTATION OF ALL THE ISSUES, AND TAKES NO QUESTION OF FACT FROM
EITHER COURT OR JURY.  ...  NOR DOES IT IN ANY WISE WORK A DENIAL OF
DUE PROCESS OF LAW."  MEEKER & CO. V. LEHIGH VALLEY R. CO., 236 U.S.
412, 430.  AND SEE PENNSYLVANIA R. CO. V. WEBER, 257 U.S. 85, 90-91. 
IT HARDLY SEEMS POSSIBLE TO FIND FROM THE LANGUAGE OF SEC. 9 A
CONGRESSIONAL INTENT TO GUARANTEE RAILROADS COMPLETE JUDICIAL REVIEW OF
ADVERSE REPARATION ORDERS WHILE DENYING SHIPPERS ANY JUDICIAL REVIEW AT
ALL.    WHAT WE HAVE SAID WOULD DISPOSE OF THE SEC. 9 CONTENTION BUT
FOR THE ARGUMENT OF THE COMMISSION AND THE RAILROADS THAT THEIR
SUGGESTED INTERPRETATION OF THE SECTION IS REQUIRED BY THIS COURT'S
HOLDING IN STANDARD OIL CO. V. UNITED STATES, 283 U.S. 235, AND OTHER
CASES THAT FOLLOWED IT.  IN THAT CASE THE STANDARD OIL CO., A SHIPPER,
WAS DENIED THE RIGHT TO JUDICIAL REVIEW OF A COMMISSION ORDER DENYING
REPARATIONS.  JUDICIAL REVIEW WAS DENIED ON FOUR GROUNDS:  (1) THE
ORDER IN THE STANDARD OIL CASE DENYING REPARATIONS WAS "NEGATIVE" IN
FORM, AND WAS THEREFORE BEYOND JUDICIAL APPRAISAL UNDER THE "NEGATIVE
ORDER" DOCTRINE.  THIS DOCTRINE WAS WHOLLY ABANDONED IN ROCHESTER TEL.
CORP. V. UNITED STATES, 307 U.S. 125.  (2) THE DECISION IN THE STANDARD
OIL CASE HELD THAT THE COMMISSION ORDER WAS SUPPORTED BY SUBSTANTIAL
EVIDENCE AND WAS NOT OTHERWISE IN VIOLATION OF LAW.  THE GOVERNMENT'S
CLAIM HERE IS THAT THIS ORDER CANNOT MEET THAT TEST.  (3) THE THIRD
GROUND FOR DENIAL OF JUDICIAL REVIEW WAS THAT HAVING ELECTED TO TEST
ITS DAMAGE CLAIM BEFORE THE COMMISSION, STANDARD WAS PRECLUDED FROM
JUDICIAL REVIEW.  (4) A THREE-JUDGE COURT WAS AN IMPROPER TRIBUNAL TO
ADJUDICATE DAMAGE CLAIMS UNDER SEC. 9. 

THE STANDARD OIL INTERPRETATION OF SEC. 9 DENYING SHIPPERS ANY
JUDICIAL REVIEW WAS MADE BY A COURT USUALLY CAREFUL TO PROTECT AGAINST
ARBITRARY OR UNLAWFUL ADMINISTRATIVE ACTION.  AND, AS SHOWN, THE COURT
THERE FIRST SATISFIED ITSELF THAT THE COMMISSION ORDER WAS NOT THE
PRODUCT OF AN UNLAWFUL EXERCISE OF POWER BY THE COMMISSION. 
FURTHERMORE, THE "NEGATIVE ORDER" PHILOSOPHY, THEN AT ITS PEAK, CLEARLY
BARRED REVIEW OF ALL ORDERS DENYING REPARATIONS.  CONSEQUENTLY, THE
STANDARD OIL SEC. 9 INTERPRETATION BARRED JUDICIAL REVIEW OF NO CLASS
OF COMMISSION ORDERS EXCEPT ORDERS ALREADY IMMUNE FROM SUCH REVIEW
UNDER THE "NEGATIVE ORDER" DOCTRINE.  THE STANDARD OIL HOLDING WAS THUS
CLEARLY SUPPORTED BY AND ROOTED IN THE NOW REJECTED "NEGATIVE ORDER"
DOCTRINE.  FN5 

ANOTHER REASON FOR THE COURT'S CONSTRUCTION OF SEC. 9 IN THE STANDARD
OIL CASE WAS THAT STANDARD'S DAMAGE CLAIM COULD HAVE BEEN ADJUDICATED
BY A DISTRICT COURT SINCE IT INVOLVED NO QUESTION AS TO REASONABLENESS
OF RATES THAT CALLED FOR EXERCISE OF THE COMMISSION'S PRIMARY
JURISDICTION.  THE IMPORTANCE OF THIS FACTOR WAS EMPHASIZED BY THIS
COURT IN APPLYING THE STANDARD OIL CONSTRUCTION OF SEC. 9 IN BALTIMORE
& O.R. CO. V. BRADY, 288 U.S. 448, 457-459.  FIRST POINTING OUT THAT
THERE WAS NO QUESTION IN THAT CASE "REQUIRING THE EXERCISE OF THE
COMMISSION'S ADMINISTRATIVE POWERS," THE COURT SAID: 

"IT IS TO BE REMEMBERED THAT, BY ELECTING TO CALL ON THE COMMISSION
FOR THE DETERMINATION OF HIS DAMAGES, PLAINTIFF WAIVED HIS RIGHT TO
MAINTAIN AN ACTION AT LAW UPON HIS CLAIM.  BUT THE CARRIERS MADE NO
SUCH ELECTION.  UNDOUBTEDLY IT WAS TO THE END THAT THEY BE NOT DENIED
THE RIGHT OF TRIAL BY JURY THAT CONGRESS SAVED THEIR RIGHT TO BE HEARD
IN COURT UPON THE MERITS OF CLAIMS ASSERTED AGAINST THEM.  THE RIGHT OF
ELECTION GIVEN TO A CLAIMANT REASONABLY MAY HAVE BEEN DEEMED AN
ADEQUATE GROUND FOR MAKING THE COMMISSION'S AWARD FINAL AS TO HIM." 

AND SEE TERMINAL WAREHOUSE CO. V. PENNSYLVANIA R. CO., 297 U.S. 500,
507-508. 

THUS, A CRUCIAL SUPPORT FOR THE COURT'S HOLDING IN THE STANDARD OIL
AND BRADY CASES WAS THAT THE SHIPPERS IN THOSE CASES COULD HAVE
COMMENCED ORIGINAL SEC. 9 ACTIONS IN THE DISTRICT COURT.  BUT IT HAS
BEEN ESTABLISHED DOCTRINE SINCE THIS COURT'S HOLDING IN TEXAS & P.R.
CO. V. ABILENE OIL CO., 204 U.S. 426, THAT A SHIPPER CANNOT FILE A SEC.
9 PROCEEDING IN A DISTRICT COURT WHERE HIS CLAIM FOR DAMAGES
NECESSARILY INVOLVES A QUESTION OF "REASONABLENESS" CALLING FOR
EXERCISE OF THE COMMISSION'S PRIMARY JURISDICTION.  FN6  THE
GOVERNMENT'S CLAIM HERE DOES INVOLVE SUCH A QUESTION OF
"REASONABLENESS."  FOR THE ALLOWANCES EXACTED FROM THE GOVERNMENT WERE
AUTHORIZED IN THE RAILROADS' PUBLISHED TARIFFS AND WERE THEREFORE NOT
UNLAWFUL UNLESS "UNREASONABLE."  CONSEQUENTLY THE GOVERNMENT HERE HAD
NO "RIGHT OF ELECTION" BETWEEN COMMISSION AND COURT THAT COULD BE
"DEEMED AN ADEQUATE GROUND FOR MAKING THE COMMISSION'S AWARD FINAL  ...
" BALTIMORE & O.R. CO. V. BRADY, SUPRA, AT 458.  FN7 

ASHLAND COAL CO. V. UNITED STATES, 325 U.S. 840, IS THE ONLY CASE IN
THIS COURT THAT RELIED ON THE STANDARD OIL DECISION AFTER WE HAD
ABANDONED THE "NEGATIVE ORDER" DOCTRINE.  CF. ALLISON & CO. V. UNITED
STATES, 296 U.S. 546.  AND IT IS DOUBTFUL IF THE SHIPPER IN THE ASHLAND
COAL CO. CASE COULD HAVE SOUGHT REPARATIONS IN A DISTRICT COURT UNDER
THE "PRIMARY JURISDICTION" DOCTRINE.  IN AFFIRMING WITHOUT ARGUMENT THE
JUDGMENT OF A THREE-JUDGE COURT IN THE ASHLAND COAL CO. CASE, THIS
COURT'S PER CURIAM OPINION CITED TWO PAGES OF THE STANDARD OIL OPINION
THAT SUPPORT THE INTERPRETATION OF SEC. 9 URGED HERE BY THE COMMISSION
AND RAILROADS.  IT IS A FAIR INFERENCE THAT THE PAGES WERE CITED FOR
THAT INTERPRETATION ALTHOUGH OTHER GROUNDS FOR THE COURT'S DECISION
ALSO APPEAR THERE.  ONE SUCH GROUND WAS THAT A THREE-JUDGE COURT IS AN
IMPROPER TRIBUNAL FOR THE REVIEW OF SUCH COMMISSION ORDERS.  ANOTHER
GROUND WAS THAT THERE WAS "NOTHING TO SUGGEST THAT THE COMMISSION ACTED
ARBITRARILY OR WITHOUT EVIDENCE TO SUPPORT ITS CONCLUSIONS, OR THAT IT
TRANSCENDED ITS CONSTITUTIONAL OR STATUTORY POWERS."  THE THREE-JUDGE
DISTRICT COURT IN THE ASHLAND CASE IN SUSTAINING THE COMMISSION ORDER
HAD ALSO HELD THAT A THREE-JUDGE COURT WAS NOT A PROPER TRIBUNAL AND
THAT THE COMMISSION ORDER WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS
IN ACCORDANCE WITH LAW.  ASHLAND COAL & ICE CO. V. UNITED STATES, 61
F.SUPP.  708, 713. 

WE CANNOT ACCEPT THE ASHLAND COAL CO. PER CURIAM HOLDING NOR THE
STANDARD OIL CASE ON WHICH IT RESTED AS REQUIRING THE INTERPRETATION OF
SEC. 9 WHICH THE RAILROADS AND COMMISSION HERE URGE.  OUR ACCEPTANCE OF
THAT INTERPRETATION WOULD MEAN THAT A SHIPPER WHO SUBMITTED TO THE
COMMISSION ONLY A QUESTION OF THE REASONABLENESS OF RATES COULD HAVE AN
ADVERSE ORDER REVIEWED BY A COURT, SKINNER & EDDY CORP. V. UNITED
STATES, 249 U.S. 557, 562-563, WHILE A SHIPPER WHO ASKED FOR THAT
ADMINISTRATIVE DETERMINATION PLUS REPARATIONS COULD GET NO JUDICIAL
REVIEW AT ALL.  TERMINAL WAREHOUSE CO. V. PENNSYLVANIA R. CO., SUPRA,
AT 507-508.  ON ANY GROUND EXCEPT THE NOW DISCARDED "NEGATIVE ORDER"
DOCTRINE, THIS WOULD APPEAR TO BE AN UNSUPPORTABLE AND TOTALLY
ILLOGICAL LIMITATION OF THE CONGRESSIONAL COMMAND FOR JUDICIAL REVIEW. 
FN8  SEE CHICAGO JUNCTION CASE, 264 U.S. 258, 269-270; SOUTHERN R. CO.
V. TIFT, 206 U.S. 428, 440.  ACCORDINGLY WE HOLD THAT SEC. 9 DOES NOT
IMPAIR THE RIGHT OF SHIPPERS TO OBTAIN JUDICIAL REVIEW OF ADVERSE
COMMISSION ORDERS UNDER SEC. 41(28) MERELY BECAUSE THE ORDER IS SOUGHT
AS A BASIS FOR REPARATIONS. 

FOURTH.  FOR REASONS ALREADY STATED WE HOLD THAT A COMMISSION ORDER
DISMISSING A SHIPPER'S CLAIM FOR DAMAGES UNDER 49 U.S.C. SEC. 9 IS AN
"ORDER" SUBJECT TO CHALLENGE UNDER 28 U.S.C. (1946 ED.)  SEC. 41(28). 
THE REMAINING QUESTION IS WHETHER A DISTRICT COURT ENTERTAINING SUCH A
CHALLENGE SHALL BE COMPOSED OF ONE JUDGE OR THREE JUDGES AND WHETHER
THE JUDGMENT OF A DISTRICT COURT IN SUCH A CASE CAN BE APPEALED
DIRECTLY TO THIS COURT. 

THE URGENT DEFICIENCIES ACT FROM WHICH SEC. 41(28) WAS DERIVED
CONTAINS PROVISIONS FOR A THREE-JUDGE DISTRICT COURT TO HEAR AND
DETERMINE SUITS BROUGHT TO SET ASIDE A COMMISSION "ORDER," AND
AUTHORIZES JUDGMENTS RENDERED IN SUCH CASES TO BE APPEALED DIRECTLY TO
THIS COURT.  FN9  FOR REASONS NOW STATED WE HOLD THAT JUDICIAL REVIEW
OF AN ORDER DENYING REPARATIONS DOES NOT REQUIRE A THREE-JUDGE COURT. 

THE PROVISIONS OF THE URGENT DEFICIENCIES ACT HERE CONSIDERED DERIVE
FROM A 1910 CONGRESSIONAL ENACTMENT CREATING THE COMMERCE COURT,
DEFINING ITS POWERS AND PROVIDING FOR REVIEW OF ITS JUDGMENTS.  FN10
THAT COURT WAS GIVEN JURISDICTION OF ALL ACTIONS TO ENJOIN, SET ASIDE
AND MODIFY COMMISSION ORDERS.  SECTION 2 PROVIDED FOR DIRECT APPEALS
FROM THE COMMERCE COURT TO THE SUPREME COURT.  THE PURPOSE OF CREATING
THE COMMERCE COURT WITH SUCH DIRECT APPEALS WAS EXPEDITION OF FINAL
DETERMINATION OF THE VALIDITY OF CERTAIN TYPES OF COMMISSION ORDERS. 
THIS EXPEDITION WAS SOUGHT FOR ORDERS OF NATIONAL OR WIDESPREAD
INTEREST, SUCH, FOR EXAMPLE, AS RAILROAD RATE ORDERS.  CONGRESS SAW THE
NECESSITY FOR AN ACCELERATED APPELLATE PROCEDURE TO PREVENT RAILROADS
FROM NULLIFYING THE EFFECT OF SUCH ORDERS IN PROLONGED LITIGATION. 
FN11  THE COMMERCE ACT ITSELF INDICATED THAT THE SAME EXPEDITION
NECESSARY IN CASES AFFECTING THE PUBLIC GENERALLY WAS NOT NECESSARY IN
OTHER KINDS OF CASES INVOLVING "LOCAL AND ISOLATED QUESTIONS WHICH
ARISE IN THE ORDINARY COURTS."  FN12  THE ACT'S FIRST SECTION EXCLUDED
FROM THE COMMERCE COURT'S JURISDICTION POWER TO ENFORCE "ANY ORDER OF
THE INTERSTATE COMMERCE COMMISSION  ...  FOR THE PAYMENT OF MONEY." 
FN13 

PROVISIONS OF THE URGENT DEFICIENCIES ACT OF 1913 ABOLISHED THE
COMMERCE COURT AND TRANSFERRED ITS JURISDICTION TO DISTRICT COURTS
COMPOSED OF THREE JUDGES.  IN CONSIDERING THIS ACT CONGRESS WAS URGED
TO BEAR IN MIND THE NECESSITY FOR PROVIDING A FORUM THAT COULD
EXPEDITIOUSLY REVIEW COMMISSION ORDERS OF WIDESPREAD IMPORTANCE.  FN14
BUT IN PASSING THE 1913 ACT CONGRESS DENIED POWER TO THREE-JUDGE COURTS
TO ENFORCE COMMISSION ORDERS FOR THE PAYMENT OF MONEY.  FN15  AND IN A
CASE NOT INVOLVING REPARATIONS THIS COURT HELD THAT ORDERS RELATING
MERELY TO THE PAYMENT OF MONEY ARE NOT LIKELY TO BE OF SUFFICIENT
PUBLIC IMPORTANCE TO JUSTIFY USE OF THE THREE-JUDGE PROCEDURE.  SEE
UNITED STATES V. GRIFFIN, 303 U.S. 226, 233, 234-237.  BUT CF. EL
DORADO OIL WORKS V. UNITED STATES, 328 U.S. 12, 18-19; UNITED STATES V.
JONES, 336 U.S. 641, 647.  THE URGENT DEFICIENCIES ACT WITH 49 U.S.C.
SEC. 9, WHICH REQUIRES ENFORCEMENT OF COMMISSION REPARATION AWARDS IN
ONE-JUDGE COURTS, INDICATES THE BELIEF OF CONGRESS THAT SUCH ORDERS ARE
NOT OF SUFFICIENT PUBLIC IMPORTANCE TO JUSTIFY THE ACCELERATED JUDICIAL
REVIEW PROCEDURE. 

WHILE THE GOVERNMENT HERE DOES NOT SEEK ENFORCEMENT OF A COMMISSION
ORDER FOR THE PAYMENT OF MONEY, THE ROOT OF THE CONTROVERSY CONCERNS
THE PAYMENT OF MONEY DAMAGES UNDER 49 U.S.C. SECS. 8, 9.  HAD THE
COMMISSION MADE AN AWARD TO THE GOVERNMENT IT COULD HAVE FILED A CIVIL
SUIT TO RECOVER MONEY DAMAGES UNDER THE PROVISIONS OF 49 U.S.C. SEC.
16(2).  THAT SECTION PROVIDES THAT SUCH A SUIT "SHALL PROCEED IN ALL
RESPECTS LIKE OTHER CIVIL SUITS FOR DAMAGES  ...  " - THAT IS, BEFORE
ONE DISTRICT JUDGE.  AND AN APPEAL FROM A JUDGMENT IN SUCH A CASE GOES
TO THE COURT OF APPEALS.  THE SAME ONE-JUDGE TRIAL AND APPEAL PROCEDURE
AVAILABLE FOR ENFORCEMENT OF AN AWARD ORDER WOULD APPEAR TO BE AN
EQUALLY APPROPRIATE AND ADEQUATE TRIBUNAL FOR ADJUDICATION OF VALIDITY
OF A COMMISSION ORDER DENYING REPARATIONS.  FOR ACTIONS TO ENFORCE
COMMISSION ORDERS AWARDING REPARATION, AND ACTIONS TO CHALLENGE
COMMISSION ORDERS DENYING REPARATIONS, BASICALLY INVOLVE THE SAME
PARTIES, THE SAME DISPUTES, THE SAME CLAIMS FOR MONEY DAMAGES, AND THE
SAME STATUTES.  WE THINK THE ORDERS IN BOTH INSTANCES SHOULD BE
REVIEWED IN THE SAME ONE-JUDGE TRIBUNAL. 

WE HAVE FREQUENTLY POINTED OUT THE IMPORTANCE OF LIMITING THE THREE
JUDGE COURT PROCEDURE WITHIN ITS EXPRESSLY STATED CONFINES.  FN16  WE
ARE CONFIDENT THAT IN HOLDING THAT ONE JUDGE RATHER THAN THREE SHOULD
ENTERTAIN CASES CHALLENGING COMMISSION REPARATION ORDERS WE INTERPRET
THE CONGRESSIONAL EXPEDITING PROCEDURE AND THE INTERSTATE COMMERCE ACT
IN ACCORDANCE WITH THEIR BASIC PURPOSE. 

FIFTH.  THERE REMAINS THE QUESTION OF THE PROPER DISPOSITION OF THIS
CASE.  THREE JUDGES HEARD IT.  THIS, HOWEVER, IS NO REASON FOR
DISMISSAL OF THE CAUSE.  SEE STAINBACK V. MO HOCK KE LOK PO, 336 U.S.
368, 381.  IF THE ALLEGATIONS OF THE BILL ARE TRUE, THE COMMISSION'S
ORDER CANNOT STAND .  CHICAGO JUNCTION CASE, 264 U.S. 258, 264-266. 
SINCE THE DISTRICT COURT DID NOT PASS ON THE MERITS OF THE ALLEGATIONS
OF THE COMPLAINT, THE CAUSE IS REMANDED TO IT FOR THAT PURPOSE. 
REVERSED AND REMANDED. 

FN1  49 U.S.C. SECS. 1(5)(A), 1(6), 2, 6(8), 15(13). 

FN2  49 U.S.C. SECS. 8, 9.  THE COMPLAINT ALSO SOUGHT RELIEF FROM
FUTURE EXACTIONS, BUT PRIOR TO THE COMMISSION'S FINAL ORDER THE PIERS
WERE RETURNED TO PRIVATE OWNERSHIP AND THIS PRAYER WAS ABANDONED. 

FN3  THE SUBSTANCE OF 28 U.S.C. SEC. 41(28) OF THE 1946 U.S.C. NOW
APPEARS AS SEC. 1336 OF THE 1948 CODE.  THE PROVISION FOR JUDICIAL
REVIEW OF INTERSTATE COMMERCE COMMISSION ORDERS FIRST APPEARED IN 1910
IN AN ACT CREATING THE COMMERCE COURT.  36 STAT. 539.  CONGRESS
ABOLISHED THE COMMERCE COURT IN 1913 AND TRANSFERRED TO DISTRICT COURTS
THE COMMERCE COURT'S JURISDICTION TO REVIEW COMMISSION ORDERS.  URGENT
DEFICIENCIES ACT, 38 STAT. 208, 219-220. 

FN4  THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, 243, 5 U.S.C.
SECS. 1001(D), 1009, PROVIDES: 

"SEC. 2.  ...  (D)  ORDER AND ADJUDICATION.  - 'ORDER' MEANS THE
WHOLE OR ANY PART OF THE FINAL DISPOSITION (WHETHER AFFIRMATIVE,
NEGATIVE, INJUNCTIVE, OR DECLARATORY IN FORM) OF ANY AGENCY IN ANY
MATTER OTHER THAN RULE MAKING BUT INCLUDING LICENSING.  'ADJUDICATION'
MEANS AGENCY PROCESS FOR THE FORMULATION OF AN ORDER." 

"SEC. 10.  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."    FN5  MR. JUSTICE CARDOZO SO TREATED THE
STANDARD OIL HOLDING IN I.C.C. V. UNITED STATES, 289 U.S. 385, 388, A
CASE DECIDED PRIOR TO THIS COURT'S REPUDIATION OF THE "NEGATIVE ORDER"
DOCTRINE.  HE THERE SAID THAT IN DENYING REPARATIONS "THE COMMISSION
SPEAKS WITH FINALITY.  ITS ORDERS PURELY NEGATIVE - NEGATIVE IN FORM
AND SUBSTANCE - ARE NOT SUBJECT TO REVIEW BY THIS COURT OR ANY OTHER." 
AUTHORITIES FOR THIS STATEMENT WERE "NEGATIVE ORDER" CASES.  THESE SAME
CASES WERE RELIED ON BY THE COURT IN A LATER CASE THAT REFERRED WITH
APPROVAL TO THE STANDARD OIL SEC. 9 INTERPRETATION.  TERMINAL WAREHOUSE
CO. V. PENNSYLVANIA R. CO., 297 U.S. 500, 507-508.    FN6  SEE CASES
COLLECTED IN ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, 139,
N. 22, AND ARMOUR & CO. V. ALTON R. CO., 312 U.S. 195; SKINNER & EDDY
CORP. V. UNITED STATES, 249 U.S. 557, 562. 

FN7  THE COMMISSION ARGUES THAT SEC. 9 DOES AUTHORIZE A SHIPPER TO
INITIATE DAMAGE CLAIMS IN A DISTRICT COURT EVEN THOUGH THE CLAIM
NECESSARILY INVOLVES QUESTIONS UPON WHICH THE COMMISSION'S PRIMARY
JURISDICTION MUST BE INVOKED.  THE RAILROADS MORE CAUTIOUSLY SAY THAT
SUCH SUITS CAN BE FILED UPON AN INITIAL SHOWING BY A SHIPPER THAT IT
MIGHT WORK A HARDSHIP ON A SHIPPER FOR THE COURT TO REFUSE TO ENTERTAIN
THE CASE.  BOTH CONTENTIONS RUN COUNTER TO THIS COURT'S PREVIOUS
CASES.  PARTICULAR CIRCUMSTANCES WERE HELD SUFFICIENT IN ONE CASE TO
JUSTIFY A COURT IN STAYING FURTHER JUDICIAL PROCEEDINGS TO AWAIT
COMMISSION ACTION.  MITCHELL COAL CO. V. PENNSYLVANIA R. CO., 230 U.S.
247, 266-267.  THE SAME COURSE WAS FOLLOWED IN ANOTHER CASE, OVER THE
COMMISSION'S OBJECTION, WHERE THE ACTION WAS IN ASSUMPSIT, AND THE
ADMINISTRATIVE PROBLEM DID NOT EMERGE UNTIL THE CASE WAS IN COURSE OF
LITIGATION.  TANK CAR CORP. V. TERMINAL CO., 308 U.S. 422, 432. 

FN8  THE "NEGATIVE ORDER" DOCTRINE WAS FIRST ADOPTED BY THIS COURT IN
PROCTER & GAMBLE V. UNITED STATES, 225 U.S. 282, DECIDED IN 1912.  A
SHIPPER THERE BROUGHT ACTION IN THE COMMERCE COURT TO SET ASIDE A
COMMISSION ORDER DISMISSING THE SHIPPER'S COMPLAINT.  THE COMPLAINT WAS
THAT THE CHARGES WERE UNJUST AND UNREASONABLE.  THE COMMERCE COURT WAS
ASKED TO ANNUL THE COMMISSION'S ORDER OF DISMISSAL, TO ENJOIN FUTURE
COLLECTION OF THE CHARGES, AND TO REQUIRE THE RAILROADS TO REPAY SUMS
ALLEGED TO HAVE BEEN WRONGFULLY COLLECTED FROM THE SHIPPER.  THE
COMMERCE COURT REVIEWED THE ACTION OF THE COMMISSION AND ON THE MERITS
DECLINED TO GRANT THE SHIPPER THE REQUESTED RELIEF.  THIS COURT HELD
THAT THIS "NEGATIVE" ORDER WAS NOT REVIEWABLE AT THE INSTANCE OF THE
SHIPPER.  THE COURT'S RULING BROUGHT SHARP CRITICISM IN CONGRESS. 
CORRECTIVE LEGISLATION WAS PROPOSED, EXHAUSTIVE COMMITTEE HEARINGS WERE
HELD, DEBATE WAS TAKEN TO THE FLOOR OF CONGRESS.  IN SPITE OF THE
STRENUOUS EFFORTS TO GET CONGRESS TO REPUDIATE THE "NEGATIVE ORDER"
DOCTRINE, CONGRESS IN 1913 DECLINED TO ACT.  BUT IN ALL OF THE
CONGRESSIONAL HEARINGS AND DEBATES ON THE SUBJECT, THE CRITICS OF THE
PROCTER & GAMBLE "NEGATIVE ORDER" RULE URGED WITHOUT CONTRADICTION THAT
REPUDIATION OF THE "NEGATIVE ORDER" RULE WOULD AFFORD SHIPPERS THE SAME
JUDICIAL REVIEW OF REPARATION AND OTHER ORDERS THEN AFFORDED TO
RAILROADS.  NOT ONCE DO WE FIND THE ARGUMENT SUGGESTED THAT 49 U.S.C.
SEC. 9 WOULD BAR SHIPPERS FROM JUDICIAL REVIEW OF ADVERSE REPARATION
ORDERS BY THE COMMISSION, ALTHOUGH THIS SECTION WAS AT THE TIME PART OF
THE ORIGINAL INTERSTATE COMMERCE ACT, ENACTED IN 1887, MORE THAN A
QUARTER OF A CENTURY BEFORE THIS CONGRESSIONAL CONSIDERATION. 

THIS COURT NEVERTHELESS ABANDONED THE "NEGATIVE ORDER" DOCTRINE IN
1938, AND IN DOING SO EFFECTIVELY OVERRULED A HOST OF PRIOR DECISIONS. 
SEE CASES COLLECTED IN FOOTNOTE TO MR. JUSTICE BUTLER'S OPINION IN THE
ROCHESTER CASE, 307 U.S. 146, 148.  THE EFFECT OF TODAY'S DECISION IS
MERELY TO RECOGNIZE THAT THE STANDARD OIL DOCTRINE, BARRING JUDICIAL
REVIEW TO SHIPPERS, CANNOT STAND CONSISTENTLY WITH THE ROCHESTER CASE
WHICH ITSELF OVERRULED THE PROCTER & GAMBLE AND OTHER "NEGATIVE ORDER"
DECISIONS.  IT WAS THEREFORE THE ROCHESTER CASE, NOT TODAY'S DECISION,
THAT OVERRULED A LINE OF CASES AND GRANTED RELIEF WHERE CONGRESS HAD
DECLINED TO AFFORD ANY.  H.R. REP. NO. 1012, 62D CONG., 2D SESS. 1
4(1912); HEARINGS BEFORE THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON
APPROPRIATIONS ON H.R. 7898, 63D CONG., 1ST SESS. 140-148(1913);
HEARINGS BEFORE THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON
APPROPRIATIONS ON H.R. 7898, 63D CONG., 1ST SESS. 305-343(1913);
HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
ON H.R. 25596 AND H.R. 25572, 62D CONG., 2D SESS. 1-298(1912); 50 CONG.
REC. 4532-4537, 4542-4545(1913). 

FN9  38 STAT. 208, 219, 220; 28 U.S.C. SEC. 2325(1948).  SEE ALSO 28
U.S.C. (1946 ED.)  SEC.  47. 

FN10  36 STAT. 539. 

FN11  SEE PRESIDENT'S MESSAGE TO CONGRESS, 45 CONG. REC. 7567
7568(1910). 

FN12  S. REP. NO. 355, 61ST CONG., 2D SESS. 1-2(1910). 

FN13  SEE PROCTER & GAMBLE V. UNITED STATES, 225 U.S. 282; TEXAS &
P.R. CO. V. ABILENE OIL CO., 204 U.S. 426. 

FN14  HEARINGS BEFORE THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON
APPROPRIATIONS ON H.R. 7898, 63D CONG., 1ST SESS. 293-299, 300(1913). 

FN15  IT IS ALSO SIGNIFICANT THAT THE NEW JUDICIAL CODE DOES NOT GIVE
A THREE-JUDGE COURT JURISDICTION TO ADJUDICATE THE VALIDITY OF
COMMISSION ORDERS "FOR THE PAYMENT OF MONEY."  28 U.S.C. SEC. 2321. 

FN16  UNITED STATES V. GRIFFIN, SUPRA, 234-237; AYRSHIRE CORP. V.
UNITED STATES, 331 U.S. 132, 136-137; STAINBACK V. MO HOCK KE LOK PO,
336 U.S. 368, 378, N. 19; PHILLIPS V. UNITED STATES, 312 U.S. 246,
250. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE JACKSON AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

FOUR TIMES SHIPPERS HAVE ASKED THIS COURT TO RECOGNIZE THE RIGHT TO
REVIEW ORDERS OF THE INTERSTATE COMMERCE COMMISSION DENYING CLAIMS FOR
REPARATIONS AGAINST CARRIERS; FOUR TIMES THE UNITED STATES RESISTED THE
RIGHT TO SUCH JUDICIAL REVIEW; FOUR TIMES THIS COURT SUSTAINED THE
UNITED STATES AND HELD THAT THE COURTS WERE WITHOUT JURISDICTION TO
REVIEW ORDERS OF THE COMMISSION DENYING REPARATIONS.  TWICE THE
DECISIONS FOLLOWED FULL ARGUMENT:  STANDARD OIL CO. V. UNITED STATES,
283 U.S. 235, IN WHICH THE BAR OF THE INTERSTATE COMMERCE ACT TO SUCH
REVIEW WAS EXPOUNDED, AND BRADY V. UNITED STATES, 283 U.S. 804, WHICH
RELIED ON THE STANDARD OIL CASE DECIDED ONLY A FEW WEEKS BEFORE.  TWICE
THEREAFTER THE DISMISSAL BY DISTRICT COURTS, FOR WANT OF JURISDICTION,
OF ATTEMPTS TO REVIEW SUCH REPARATION ORDERS WAS SUMMARILY AFFIRMED
WITHOUT ARGUMENT, SO DEFINITIVELY HAD THE STANDARD OIL CASE SETTLED THE
MATTER.  ALLISON & CO. V. UNITED STATES, 296 U.S. 546, AFFIRMING 12
F.SUPP.  862; ASHLAND COAL & ICE CO. V. UNITED STATES, 325 U.S. 840,
AFFIRMING 61 F.SUPP.  708, DECIDED LESS THAN FOUR YEARS AGO.  IN ORDER
TO RECOVER A MONEY CLAIM OF ITS OWN, THE GOVERNMENT IN THIS CASE HAS
SUDDENLY SHIFTED A POSITION CONSISTENTLY MAINTAINED BY IT FOR NEARLY
TWENTY YEARS AGAINST ALL OTHER SHIPPERS AND URGES THE RIGHT TO REVIEW
AN ORDER DENYING REPARATIONS.  INDEED, AT THE VERY SAME TIME THAT THE
GOVERNMENT WAS ARGUING BEFORE THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA FOR THE RIGHT TO REVIEW AN ORDER DENYING IT REPARATIONS, THE
GOVERNMENT SUCCESSFULLY RESISTED PRECISELY THE SAME ARGUMENT BY A
PRIVATE SHIPPER IN A SUIT IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF MICHIGAN.  GREAT LAKES STEEL CORP. V. UNITED STATES, 81
F.SUPP.  450.  AND THE GOVERNMENT DID SO ON THE BASIS OF THE
CONTROLLING SERIES OF CASES IN THIS COURT DECIDED ON GROUNDS WHICH WE
ARE NOW ASKED TO DISREGARD.  FN1 

WE ARE VOUCHSAFED NO EXPLANATION FOR THE FACT THAT THE UNITED STATES
SHOULD HAVE URGED FOUR TIMES UPON THIS COURT, AND CONTEMPORANEOUSLY
WITH THESE PROCEEDINGS IN ANOTHER DISTRICT COURT, THAT AN ORDER
RESULTING FROM A REPARATION PROCEEDING BEFORE THE INTERSTATE COMMERCE
COMMISSION IS NOT REVIEWABLE, AND YET SEEKS REVIEW IN THIS INSTANCE. 
THE ONLY EXPLANATION THAT LIES ON THE SURFACE IS THAT IN ALL THE OTHER
CASES THE UNITED STATES WAS RESISTING THE CLAIMS OF PRIVATE SHIPPERS,
WHILE IN THIS CASE THE GOVERNMENT ITSELF IS THE SHIPPER.  NO DOUBT
ENLIGHTENMENT SOMETIMES COMES THROUGH SELF-INTEREST.  BUT THIS COURT'S
CONSTRUCTION OF THE INTERSTATE COMMERCE ACT, LONG MATURED IN A SERIES
OF CASES, OUGHT NOT TO SHIFT WITH A SHIFT IN THE GOVERNMENT'S
INTEREST.  THE INTERSTATE COMMERCE COMMISSION RIGHTLY PROTESTS AGAINST
IT.  TO YIELD TO THE GOVERNMENT'S NEW CONTENTION IS NOT ONLY TO REVERSE
A SETTLED COURSE OF DECISION.  TO DO SO IS TO MUTILATE THE WHOLE SCHEME
OF THE INTERSTATE COMMERCE ACT BY DISREGARDING THE DISTRIBUTION OF
AUTHORITY CONGRESS SAW FIT TO MAKE BETWEEN THE COMMISSION AND THE
COURTS FOR THE ENFORCEMENT OF THAT ACT. 

ONE WOULD SUPPOSE THAT FOUR UNIFORM DECISIONS OF THIS COURT, RENDERED
AFTER THOROUGH CONSIDERATION OF A STATUTORY SCHEME, CONSTITUTE SUCH A
BODY OF LAW AS NOT TO BE OVERRULED, WHOLLY APART FROM ANY ARGUMENT THAT
THIS COURT'S CONSTRUCTION OF LEGISLATION IS CONFIRMED BY CONGRESS BY
REENACTMENT WITHOUT CHANGE.  THE TRANSPORTATION ACT OF 1940  FN2
REENACTED THE RELEVANT PROVISIONS OF THE INTERSTATE COMMERCE ACT AFTER
THIS COURT HAD RULED THREE TIMES THAT A SHIPPER WHO HAS UNSUCCESSFULLY
ASKED THE COMMISSION FOR DAMAGES IS BOUND BY ITS DETERMINATION AND
CANNOT THEREAFTER HAVE ANOTHER GO AT IT IN THE COURTS.  THE
CONSTRUCTION WHICH THESE DECISIONS HAVE MADE SHOULD BE ADHERED TO NOT
ONLY BECAUSE THE PRECISE ISSUE HAS ALREADY BEEN DECIDED BY THIS COURT
BUT BECAUSE THE INTERSTATE COMMERCE ACT REQUIRES IT.  "WHEN JUDICIAL
REVIEW IS AVAILABLE AND UNDER WHAT CIRCUMSTANCES, ARE QUESTIONS (APART
FROM WHATEVER REQUIREMENTS THE CONSTITUTION MAY MAKE IN CERTAIN
SITUATIONS) THAT DEPEND ON THE PARTICULAR CONGRESSIONAL ENACTMENT UNDER
WHICH JUDICIAL REVIEW IS AUTHORIZED."  LABOR BOARD V. CHENEY CALIFORNIA
LUMBER CO., 327 U.S. 385, 388.  IT WILL HARDLY BE SUGGESTED THAT THE
CONSTITUTION REQUIRES JUDICIAL REVIEW OF A REPARATION ORDER BY THE
COMMISSION.  SUCH A NOTION IS PRECLUDED BY CARY V. CURTIS, 3 HOW.  236,
AND THE WHOLE UNFOLDING OF ADMINISTRATIVE LAW DURING THE HUNDRED YEARS
SINCE THAT DECISION.  THIS IS NOT ONE OF THOSE EXCEPTIONAL CASES WHERE
"THE SANCTION AFFORDED BY JUDICIAL PROCEEDINGS" IS IMPLIED IN THE
GUARANTY OF DUE PROCESS OF LAW.  NG FUNG HO V. WHITE, 259 U.S. 276, 284
5.  THEREFORE, IT IS AS TRUE OF THE INTERSTATE COMMERCE ACT AS IT IS OF
THE NATIONAL LABOR RELATIONS ACT, THAT "CONGRESS WAS ENTITLED TO
DETERMINE WHAT REMEDY IT WOULD PROVIDE, THE WAY THAT REMEDY SHOULD BE
SOUGHT, THE EXTENT TO WHICH IT SHOULD BE AFFORDED, AND THE MEANS BY
WHICH IT SHOULD BE MADE EFFECTIVE."  MR. CHIEF JUSTICE HUGHES, SPEAKING
FOR THE COURT IN AMALGAMATED UTILITY WORKERS V. CONSOLIDATED EDISON
CO., 309 U.S. 261, 264. 

IN THE RETICULATED SCHEME FOR ENFORCEMENT OF THE NEW RIGHTS AND
OBLIGATIONS CREATED BY THE INTERSTATE COMMERCE ACT, CONGRESS CLEARLY
INDICATED WHERE THE JUDICIARY COMES IN AND WHERE THE JUDICIARY IS TO
KEEP OUT.  MORE PARTICULARLY, CONGRESS HAS PROVIDED IN DETAIL FOR
JUDICIAL REVIEW IN CERTAIN ASPECTS OF REPARATION CLAIMS THAT COME
BEFORE THE COMMISSION; IT HAS AFFORDED AN ALTERNATIVE PROCEDURE AS
BETWEEN COMMISSION AND COURTS IN SOME INSTANCES; IT HAS SPECIFICALLY
PRECLUDED RESORT TO JUDICIAL REVIEW WHERE THE SHIPPER HAS CHOSEN RESORT
TO THE COMMISSION.  IF THE SCHEME OF LEGISLATION THAT CONGRESS HAS
DEVISED IS TO BE RESPECTED, JUDICIAL REVIEW OF THE COMMISSION'S ORDER
DENYING IT REPARATIONS IS NOT OPEN TO THE GOVERNMENT. 

A SUMMARY OF WHAT THIS CASE INVOLVES SHOULD PRECEDE A DETAILED
ANALYSIS OF THE ACT, SO FAR AS RELEVANT TO ITS DISPOSITION. 

AT THE TIME THIS CONTROVERSY AROSE IT HAD LONG BEEN THE PRACTICE FOR
RAILROADS REACHING ATLANTIC PORTS TO ABSORB THE COST OF WHARFAGE AND
HANDLING SERVICES FURNISHED BY THEM FOR GOODS DESTINED FOR SHIPMENT
OVERSEAS.  THIS APPLIED ONLY TO SERVICES RENDERED ON SO-CALLED PUBLIC
WHARVES, EXCLUDING, THAT IS, SERVICES SO REQUIRED ON WHARVES OPERATED
BY A SHIPPER HIMSELF.  THE WHARVES IN QUESTION WERE PIERS OWNED BY THE
GOVERNMENT, BUT LEASED BY IT FOR COMMERCIAL PEACETIME OPERATIONS AS
PUBLIC TERMINAL FACILITIES OF THE RAILROADS.  UP TO JUNE 15, 1942,
THESE PIERS WERE OPERATED BY THE TRANSPORT TRADING AND TERMINAL
CORPORATION, AS AGENT OF THE DEFENDANT RAILROADS.  WAR CONDITIONS MADE
IT NECESSARY FOR THE GOVERNMENT TO CANCEL ITS LEASES WITH THE TERMINAL
CORPORATION AND, ON JUNE 15, 1942, IT TOOK OVER THE OPERATION OF THESE
PIERS FOR THE MOVEMENT OF MILITARY FREIGHT, ALMOST ENTIRELY OUTBOUND. 
THE RAILROADS REFUSED ALLOWANCES FOR THE COST OF SERVICES WHICH THEY
HAD THERETOFORE ABSORBED, AND DECLINED A LATER REQUEST OF THE ARMY TO
PERFORM THE HANDLING SERVICES BECAUSE THE ARMY, NOT THE RAILROADS,
CONTROLLED THE PIERS. 

CLAIMING TO BE DAMAGED BY THE REFUSAL OF THE RAILROADS TO GRANT
ALLOWANCES FOR THE GOVERNMENT'S HANDLING OF ITS GOODS ON ITS OWN PIERS,
WHEN IT EXCLUDED THE TERMINAL CORPORATION AND TOOK OVER THE PIERS, THE
GOVERNMENT INITIATED THESE PROCEEDINGS BEFORE THE COMMISSION FOR
REPARATIONS UNDER SEC. 8 OF THE INTERSTATE COMMERCE ACT.  FN3  IT FILED
ITS COMPLAINT UNDER SECS. 9 AND 13 OF THAT ACT.  FN4  CLAIMING THAT THE
RATES UNDER THE EXISTING TARIFFS WERE UNJUST AND UNREASONABLE, AND THAT
IT WAS DISCRIMINATED AGAINST BECAUSE OTHER SHIPPERS WERE FURNISHED
WHARFAGE AND HANDLING SERVICES WHICH IT PERFORMED AT ITS OWN EXPENSE,
THE GOVERNMENT SOUGHT RELIEF AGAINST CONTINUANCE OF ALLEGED VIOLATIONS
OF SECS. 1(5)(A), 1(6), AND 15(13) OF THE INTERSTATE COMMERCE ACT.  THE
COMPLAINT WAS SUSTAINED BY DIVISION 2, WITH ONE COMMISSIONER
DISSENTING.  UNITED STATES V. ABERDEEN & ROCKFISH R. CO., 263 I.C.C.
303.  THE FULL COMMISSION REVERSED THE FINDINGS OF DIVISION 2 AND
ORDERED THE COMPLAINT DISMISSED, FOUR COMMISSIONERS DISSENTING.  264
I.C.C. 683.  ON REARGUMENT THE FULL COMMISSION ADHERED TO ITS FINDINGS,
FIVE COMMISSIONERS DISSENTING.  FN5 269 I.C.C. 141.  AT THE TIME OF ITS
FINAL REPORT, IT WAS ASSUMED THAT THE OPERATION OF THE PIERS REVERTED
TO THE SITUATION EXISTING PRIOR TO JUNE 15, 1942, SO THAT THE PURPOSE
OF THE PROCEEDING BEFORE THE COMMISSION WAS DEEMED TO BE FOR
REPARATIONS ONLY.  269 I.C.C. AT 147.    INVOKING THE PROCEDURE OF THE
URGENT DEFICIENCIES ACT OF 1913, THE GOVERNMENT THEN SOUGHT TO SET
ASIDE THE ORDER OF THE COMMISSION DISMISSING THE GOVERNMENT'S
COMPLAINT.  (ACT OF OCTOBER 22, 1913, 38 STAT. 219-21, NOW 28 U.S.C.
SECS. 1253, 1336, 2101, 2284, 2321-2325.)  A DULY CONSTITUTED DISTRICT
COURT, WITH THREE JUDGES SITTING, FOUND ITSELF WITHOUT JURISDICTION TO
REVIEW THE COMMISSION'S ORDER.  78 F.SUPP.  580.  THIS JUDGMENT SHOULD
BE AFFIRMED, INSOFAR AS IT HELD THAT AN ORDER OF THE COMMISSION DENYING
DAMAGES BY WAY OF REPARATIONS IN PROCEEDINGS BROUGHT BEFORE THE
COMMISSION IS NOT REVIEWABLE IN THE COURTS. 

TO ASCERTAIN WHETHER AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
IS OPEN TO JUDICIAL REVIEW, IT SHOULD RIGOROUSLY BE BORNE IN MIND THAT
JURISDICTION TO REVIEW SUCH AN ORDER MUST HAVE BEEN CONFERRED BY
CONGRESS.  TO ASSUME THAT AN ORDER OF THE COMMISSION FOR WHICH
REVIEWING POWER IS NOT CONFERRED, IS PRESUMABLY REVIEWABLE BY THE
COURTS IS TO START WITH THE ANSWER OF THE PROBLEM TO BE SOLVED.  UNLESS
CONGRESS HAS CHOSEN TO GIVE THE COURTS OVERSIGHT OF A DETERMINATION BY
THE COMMISSION, THE COURTS HAVE NOT THE POWER OF OVERSIGHT WHERE, AS
HERE, THE CONSTITUTION DOES NOT REQUIRE IT.  IF CONGRESS HAS MADE NO
GRANT OF POWER TO COURTS TO REVIEW THE COMMISSION'S ORDER DENYING A
CLAIM FOR REPARATION, AND, IN FACT, HAS EXPLICITLY WITHHELD RESORT TO
THE COURTS AFTER SUCH DENIAL BY THE COMMISSION, IT IS WHOLLY IMMATERIAL
THAT AS TO OTHER TYPES OF ORDERS THE RIGHT TO REVIEW HAS BEEN GIVEN TO
THE COURTS, OR THAT A DETERMINATION BY THE COMMISSION CLOSELY RELATED
TO REPARATIONS, BUT NOT IN FACT A CLAIM FOR DAMAGES, DOES NOT BAR
ACCESS TO THE COURTS. 

WHEN DEALING WITH THE INTERSTATE COMMERCE ACT WE ARE DEALING NOT WITH
AN EPISODIC BIT OF LEGISLATION TO WHICH THE GENERAL JURISDICTION OF THE
FEDERAL COURTS PRESUMABLY APPLIES.  WE ARE DEALING WITH THE OLDEST
REGULATORY SCHEME WHICH, BY SUCCESSIVE AMENDMENTS AND ENLARGEMENTS,
ESTABLISHED A COMPREHENSIVE, SELF-CONTAINED REGIME BOTH OF
ADMINISTRATION AND ADJUDICATION.  THE SCHEME AS A WHOLE OUGHT NOT TO BE
DISLOCATED TO MEET THE EXIGENCIES OF A PARTICULAR SITUATION. 

FIRST.  JUDICIAL REVIEW OF AN ORDER BY THE COMMISSION DISMISSING A
COMPLAINT FOR REPARATIONS HAS HERETOFORE BEEN URGED EXCLUSIVELY ON THE
BASIS OF THE URGENT DEFICIENCIES ACT.  THE JURISDICTION OF THE DISTRICT
COURT IN THIS CASE WAS INVOKED UNDER THAT ACT.  THIS IS THE SOLE BASIS
OF JURISDICTION URGED BY THE GOVERNMENT HERE IN ITS COMPREHENSIVE BRIEF
AND ARGUMENT, AND THE COURT REJECTS IT.  IT RIGHTLY REJECTS IT.  BUT
THE COMPELLING CONSIDERATIONS FOR THIS REJECTION DEMAND A FURTHER
ANALYSIS OF THE STRUCTURE AND DETAILS OF THE JURISDICTIONAL PROVISIONS
RELATING TO ORDERS OF THE INTERSTATE COMMERCE COMMISSION.  SUCH
ANALYSIS IS ESSENTIAL TO LAY BARE THE EQUALLY COMPELLING CONSIDERATIONS
AGAINST JURISDICTION UNDER THE GENERAL EQUITY POWERS OF THE DISTRICT
COURTS. 

CARRIERS FOR DAMAGES CAUSED BY VIOLATION OF THE NEW OBLIGATIONS IMPOSED
BY THAT ACT.  IN THE ABSENCE OF SPECIFIC REMEDIES, IT WOULD BE FAIR TO
ASSUME THAT THESE NEW RIGHTS WERE ENFORCEABLE IN THE DISTRICT COURTS
UNDER THEIR GENERAL JURISDICTION OVER SUITS "ARISING UNDER ANY ACT OF
CONGRESS REGULATING COMMERCE."  28 U.S.C. SEC. 1337.  BUT THE
INTERSTATE COMMERCE ACT DID NOT STOP WITH A MERE DECLARATION OF
LIABILITY.  IT DEFINED A SPECIFIC COURSE OF PROCEDURE; IT
PARTICULARIZED THE REMEDIES AVAILABLE TO THOSE TO WHOM NEW RIGHTS WERE
GIVEN AND THE WAY IN WHICH THEY WERE TO BE PURSUED.  "IN SUCH A CASE
THE SPECIFICATION OF ONE REMEDY NORMALLY EXCLUDES ANOTHER." 
SWITCHMEN'S UNION OF NORTH AMERICA V. NATIONAL MEDIATION BOARD, 320
U.S. 297, 301.  FOR CHARGING MORE THAN THE TARIFF RATE OR CHARGING A
DISCRIMINATORY RATE, THE ACT PROVIDES ALTERNATIVE PROCEDURES SET FORTH
IN DETAIL IN SEC. 9.  THESE ARE THE RELEVANT PROVISIONS:  "ANY PERSON
OR PERSONS CLAIMING TO BE DAMAGED BY ANY COMMON CARRIER  ...  MAY
EITHER MAKE COMPLAINT TO THE COMMISSION AS HEREINAFTER PROVIDED FOR, OR
MAY BRING SUIT  ...  IN ANY DISTRICT  ...  COURT OF THE UNITED STATES
OF COMPETENT JURISDICTION; BUT SUCH PERSON OR PERSONS SHALL NOT HAVE
THE RIGHT TO PURSUE BOTH OF SAID REMEDIES, AND MUST IN EACH CASE ELECT
WHICH ONE OF THE TWO METHODS OF PROCEDURE HEREIN PROVIDED FOR HE OR
THEY WILL ADOPT."  24 STAT. 379, 382, AS AMENDED, 49 U.S.C. SEC. 9. 
WITH QUALIFICATIONS SHORTLY TO BE NOTED, A SUIT BEGUN IN A DISTRICT
COURT FOLLOWS THE COURSE OF ANY OTHER ACTION THERE.  ON THE OTHER HAND,
IF THE SHIPPER PREFERS TO PURSUE THE ALTERNATIVE COURSE - THE
ADMINISTRATIVE ROUTE - TO OBTAIN DAMAGES FOR A VIOLATION OF THE ACT, HE
FILES HIS COMPLAINT WITH THE COMMISSION. 

AS TO A PROCEEDING BEFORE THE COMMISSION, WHETHER FOR DAMAGES OR FOR
A RATE ADJUSTMENT, SEC. 13 DEFINES THE PROCEDURE; FN6  THE ROLE OF THE
COURTS IN RELATION TO THE COMMISSION'S ORDERS IS DEFINED BY SECS. 16
FN7  AND 17(9).  FN8  SECTION 16 FIXES THE TIME FOR FILING A COMPLAINT
EITHER IN THE COURTS OR BEFORE THE COMMISSION; IT ALSO PROVIDES FOR THE
ENFORCEMENT OF AN ORDER AWARDING DAMAGES, LIMITING THE TIME WITHIN
WHICH SUCH AN ACTION MUST BE BROUGHT, AND STATING THE EFFECT TO BE
GIVEN TO THE COMMISSION'S AWARD.  SINCE 1940, THE PROVISIONS OF THE
URGENT DEFICIENCIES ACT OF 1913(38 STAT. 219-21), CONFERRING ON THE
DISTRICT COURTS THE JURISDICTION IN SUITS ON ORDERS OF THE COMMISSION
THERETOFORE VESTED IN THE ABOLISHED COMMERCE COURT, WERE INCORPORATED
IN SEC. 17(9).  A FEW YEARS PREVIOUS THE PROCEDURAL PROVISIONS OF THE
URGENT DEFICIENCIES ACT OF 1913 BECAME PART OF TITLE 28 OF THE UNITED
STATES CODE. 

BY THIS SCHEME OF LAW ENFORCEMENT, CAREFULLY APPORTIONED BETWEEN
COMMISSION AND COURTS, CONGRESS HAS PROVIDED THAT INSOFAR AS ANY ORDER,
PROVIDED IT IS NOT ONE FOR MONEY DAMAGES, CAN BE ENJOINED, SET ASIDE
AND ENFORCED IT MUST BE UNDER THE PROVISIONS DEALING WITH SUITS TO
ENFORCE, ENJOIN, OR SET ASIDE ORDERS OF THE COMMISSION, "BUT NOT
OTHERWISE."  54 STAT. 916, 49 U.S.C. SEC. 17(9).  BY THIS LIMITATION
CONGRESS HAS MADE IT AS CLEAR AS LANGUAGE CAN THAT IF AN ORDER IS NOT
WITHIN SEC. 16, BECAUSE NOT ONE FOR MONEY DAMAGES, IF REVIEW IS
AVAILABLE, IT MUST BE UNDER SEC. 17.  IF THE COMMISSION ACTION DOES NOT
FALL WITHIN SEC. 16 OR SEC. 17, IT IS NOT REVIEWABLE AT ALL.  ORDERS
UNDER SEC. 17 ARE REVIEWABLE ONLY AS PROVIDED FOR IN THE URGENT
DEFICIENCIES ACT.  BUT THE URGENT DEFICIENCIES ACT FURNISHES ONLY
PROCEDURAL DETAILS; IT MERELY DEFINES THE METHOD OF REVIEW AND NOT THE
KINDS OF CASES FOR WHICH REVIEW IS AVAILABLE.  IT DID NOT MAKE
REVIEWABLE ACTIONS PREVIOUSLY UNREVIEWABLE.  50 CONG. REC. 4536, 4542. 
CF. STANDARD OIL CO. V. UNITED STATES, 283 U.S. 235, 241; UNITED STATES
V. JONES, 336 U.S. 641, 647-8.  IT IS THE BODY OF LAW CONSTITUTING THE
INTERSTATE COMMERCE ACT WHICH DETERMINES WHETHER AND UNDER WHAT
CIRCUMSTANCES REVIEW MAY BE HAD.  A LONG COURSE OF JUDICIAL APPLICATION
IN A FIELD OF LAW, FAIRLY TO BE CALLED TECHNICAL, HAS GRADUALLY
ASCERTAINED FROM THE CONTEXT OF THE COMPREHENSIVE SCHEME OF LEGISLATION
THE KIND AND THE CHARACTERISTICS OF ORDERS THAT ARE REVIEWABLE. 

IF THE DISMISSAL OF A REPARATION COMPLAINT IS NOT WITHIN THE PHRASE
"ANY ORDER" IN SEC. 17(9) OF THE INTERSTATE COMMERCE ACT, IT IS ALSO
NOT WITHIN THE "ANY ORDER" PHRASE OF THE SECTIONS OF TITLE 28(SEC. 
41(28) AND SEC. 46 OF THE 1946 ED., AND SECS. 1336 AND 2324 OF THE
PRESENT TITLE 28), WHICH EMBODY THE REVIEW PROVISIONS FORMERLY IN THE
URGENT DEFICIENCIES ACT OF 1913, WHICH PROVISIONS IN TURN WERE TAKEN
FROM THE COMMERCE COURT ACT.  36 STAT. 539.  ALTHOUGH SEC. 2321 OF
TITLE 28 OF THE REVISED CODE REQUIRES THAT "ANY ORDER" OF THE
INTERSTATE COMMERCE COMMISSION OTHER THAN ONE "FOR THE PAYMENT OF
MONEY" SHOULD BE REVIEWED ACCORDING TO THE PROCEDURE UNDER THE
PROVISIONS PROVIDING FOR A THREE-JUDGE COURT, IT IS CLEAR THAT "THERE
ARE MANY ORDERS OF THE COMMISSION WHICH ARE NOT JUDICIALLY REVIEWABLE
UNDER THE PROVISION NOW INCORPORATED IN THE URGENT DEFICIENCIES ACT." 
UNITED STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299, 309. 

IN THE LOS ANGELES & S.L.R. CO. CASE IT WAS HELD THAT THE DISTRICT
COURT HAD NO JURISDICTION TO REVIEW A FINAL VALUATION ORDER - NEITHER
BY VIRTUE OF THE URGENT DEFICIENCIES ACT, NOR UNDER ITS GENERAL EQUITY
POWERS.  THIS RESULT WAS REACHED PARTLY BECAUSE OF WANT OF EQUITY, BUT
ALSO BECAUSE IT WAS FOUND, UPON FULL CONSIDERATION, THAT NOT EVERY
ORDER OF THE COMMISSION IS "ANY ORDER" WITHIN THE JURISDICTIONAL
AUTHORIZATION OF THE INTERSTATE COMMERCE ACT AND THE APPLICABLE
PROVISIONS OF THE URGENT DEFICIENCIES ACT.  SO, ALSO, AN ORDER REFUSING
TO INCREASE THE ALLOWANCE FOR RAILROAD MAIL COMPENSATION IS NOT
REVIEWABLE UNDER THE URGENT DEFICIENCIES ACT.  UNITED STATES V.
GRIFFIN, 303 U.S. 226; SEE ALSO GREAT NORTHERN R. CO. V. UNITED STATES,
277 U.S. 172.  THE GROUND GIVEN IN THE GRIFFIN CASE WAS THAT, ALTHOUGH
THERE WAS A CASE OR CONTROVERSY AND FINAL ACTION, THIS TYPE OF ORDER
WAS NOT WITHIN THE URGENT DEFICIENCIES ACT - AND THIS, AS WE REAFFIRMED
THE OTHER DAY, QUITE APART FROM THE OBSOLETE "NEGATIVE ORDER"
DOCTRINE.  UNITED STATES V. JONES, 336 U.S. 641, 647.  FINALLY - AND IT
OUGHT TO BE DECISIVE - ON FOUR OCCASIONS THIS COURT HAS HELD THAT THE
COMMISSION'S REFUSAL TO AWARD REPARATIONS, WHEN THE SHIPPER, AS HERE,
PROCEEDED UNDER SEC. 13 OF THE ACT, IS NOT REVIEWABLE.  STANDARD OIL
CO. V. UNITED STATES, 283 U.S. 235; BRADY V. INTERSTATE COMMERCE
COMM'N, 43 F.2D 847, AFFIRMED PER CURIAM AFTER ARGUMENT, BRADY V.
UNITED STATES, 283 U.S. 804; ALLISON & CO. V. UNITED STATES, 12
F.SUPP.  862, AFFIRMED PER CURIAM, 296 U.S. 546; ASHLAND COAL & ICE CO.
V. UNITED STATES, 61 F.SUPP.  708, AFFIRMED PER CURIAM, 325 U.S. 840. 
THESE DECISIONS WERE BASED UPON THE FACT THAT THE INTERSTATE COMMERCE
ACT PRECLUDES REVIEW BY THE COURTS WHEN THE SHIPPER HAD FIRST SOUGHT
DAMAGES BEFORE THE COMMISSION. 

THE EXTRAORDINARY CONSEQUENCES OF JURISDICTION UNDER THE URGENT
DEFICIENCIES ACT - DIRECT APPEAL TO THIS COURT, A DISTRICT COURT OF
THREE JUDGES, PRECEDENCE OVER OTHER CASES ON BOTH TRIAL AND APPEAL -
WERE TO COME INTO PLAY IN STRICTLY LIMITED SITUATIONS.  THESE CAN BE
FAIRLY SUMMARIZED AS COVERING ONLY THE KINDS OF ADMINISTRATIVE ORDERS
WHICH GENERALLY ARE "OF PUBLIC IMPORTANCE BECAUSE OF THE WIDESPREAD
EFFECT OF THE DECISIONS" RENDERED BY THE COMMISSION.  UNITED STATES V.
GRIFFIN, SUPRA, 303 U.S. AT 233.  THE REPARATION ORDERS HERE INVOLVED,
AS IS TRUE OF ALL REPARATION ORDERS, SINCE THE SHIPPER MUST SHOW ACTUAL
DAMAGES, CONCERN ONLY THE SHIPPER AND THE COMMON CARRIER WHICH CHARGED
THE RATE.  AN UNDERLYING LEGAL ISSUE WHICH MAY BE OF WIDER PUBLIC
IMPORTANCE CAN, OF COURSE, BE ADJUDICATED IN A WAY WHICH PERMITS
JUDICIAL REVIEW.  THUS, AN ORDER DEALING WITH FUTURE RATES IS
REVIEWABLE UNDER THE PROVISIONS FOR A THREE-JUDGE COURT. 

BUT THERE IS ANOTHER REASON WHY REPARATION ORDERS ARE NOT REVIEWABLE
UNDER THE THREE-JUDGE COURT PROVISIONS.  SECTION 17, INCORPORATING THE
URGENT DEFICIENCIES' MODE OF REVIEW, IS NOT CONCERNED WITH REPARATION
CLAIMS BUT WITH A WHOLLY DIFFERENT MATTER.  REPARATION CLAIMS HAVE BEEN
SPECIFICALLY DEALT WITH IN OTHER SECTIONS OF THE ACT, AND, TO THE
EXTENT THAT REVIEW WAS INTENDED, IT IS SPECIFICALLY PROVIDED FOR.  BY
THE ORIGINAL ACT, ORDERS FOR THE PAYMENT OF MONEY WERE ENFORCEABLE IN
EQUITY.  INTERSTATE COMMERCE ACT OF 1887, SEC. 16, 24 STAT. 379, 384
385.  ON THE SUGGESTION THAT THIS WAS A DENIAL OF THE COMMON CARRIER'S
RIGHT TO TRIAL BY JURY GUARANTEED BY THE SEVENTH AMENDMENT, SEE 19
CONG. REC. 5149-50, CONGRESS PROMPTLY PROVIDED THAT A SUCCESSFUL
SHIPPER BEFORE THE COMMISSION HAD TO SUE AT LAW ON HIS AWARD.  25 STAT.
855, 859-60, AS AMENDED, 49 U.S.C. SEC. 16(2).  BUT THERE WAS NO
OCCASION FOR COURT REVIEW OF A RATE ORDER BECAUSE THE ORIGINAL
INTERSTATE COMMERCE ACT, WHILE GIVING THE SHIPPER A RIGHT TO DAMAGE FOR
PAST VIOLATIONS, DID NOT GIVE THE COMMISSION RATE-MAKING AUTHORITY. 
INTERSTATE COMMERCE COMMISSION V. CINCINNATI, N.O. & T. PAC. R. CO.,
167 U.S. 479.  THE RATE-MAKING POWER WAS FIRST CONFERRED BY THE HEPBURN
ACT OF 1906.  34 STAT. 584, 586-587.  FOR THE REVIEW OF SUCH RATE
ORDERS CONGRESS ENACTED WHAT IS NOW SEC. 17(9).  THEN, FOR THE FIRST
TIME, THE COURTS WERE GIVEN JURISDICTION OVER A SUIT "TO ENJOIN, SET
ASIDE, ANNUL, OR SUSPEND ANY ORDER OR REQUIREMENT OF THE COMMISSION,"
AND "JURISDICTION TO HEAR AND DETERMINE SUCH SUITS" WAS THEREBY VESTED
IN THE CIRCUIT COURT OF THE DISTRICT IN WHICH THE COMMON CARRIER WAS
LOCATED.  34 STAT. 592; SEE H.R. REP. NO. 591, 59TH CONG., 1ST SESS. 4
5(1906); H.R. REP. NO. 4093, 58TH CONG., 3D SESS. 2, 5(1905); UNITED
STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299, 309. 

IN 1910, THIS IDENTICAL JURISDICTION WAS TRANSFERRED FROM THE CIRCUIT
COURTS AND CONFERRED UPON THE NEWLY CREATED COMMERCE COURT, BUT IT WAS
EXPRESSLY PROVIDED:  "NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED
AS ENLARGING THE JURISDICTION NOW POSSESSED BY THE CIRCUIT COURTS OF
THE UNITED STATES  ...  "  36 STAT. 539.  THIS PROVISION WAS INSERTED
IN THE LEGISLATION SO "THAT THE CREATION OF THIS COURT SHALL NOT BE
CONSTRUED AS GIVING TO THE COMMERCE COURT ANY GREATER JURISDICTION THAN
IS NOW POSSESSED BY THE CIRCUIT COURTS OF THE UNITED STATES OVER
SIMILAR MATTERS."  H.R. REP. NO. 923, 61ST CONG., 2D SESS. 7(1910); SEE
S. REP. NO. 355, 61ST CONG., 2D SESS. 4, PT. 2, 4-5(1910); SEE S. DOC.
NO. 606, VOL. 54, 61ST CONG., 2D SESS. 2(1910).  BY THIS LEGISLATION OF
1910, CONGRESS MERELY PROVIDED FOR A SHIFT OF JURISDICTION, FROM THE
OLD CIRCUIT COURTS TO THE NEW CENTRALIZED COMMERCE COURT, AND NOT AN
ENLARGEMENT OF JURISDICTION.  WHEN IN 1913 THE COMMERCE COURT WAS
ABOLISHED THE SAME JURISDICTION WAS REVESTED IN THE DISTRICT COURTS,
THE CIRCUIT COURTS HAVING BEEN ABOLISHED IN THE MEANTIME:  "THE
JURISDICTION VESTED IN SAID COMMERCE COURT  ...  (WAS) TRANSFERRED TO
AND VESTED IN THE SEVERAL DISTRICT COURTS OF THE UNITED STATES."  38
STAT. 219.  INDISPUTABLY CONGRESS DID NOT MAKE REVIEWABLE ORDERS WHICH
COULD NOT HAVE BEEN REVIEWED BY THE COMMERCE COURT.  FN9    THEREFORE,
EVEN PUTTING TO ONE SIDE SEC. 9, THE DISMISSAL OF THE REPARATION
COMPLAINT WAS CLEARLY NOT WITHIN THE WORDS "ANY ORDER" IN SEC. 17(9):
(1) IF IT WERE WITHIN SEC. 17(9) IT WOULD BE REVIEWABLE ONLY BY A THREE
JUDGE COURT, BUT THAT REVIEWING DEVICE IS NOT APPLICABLE TO REPARATION
CLAIMS; (2) REPARATION CLAIMS ARE NOT WITHIN SEC. 17(9) BECAUSE THEY
HAVE BEEN TREATED BY A DIFFERENT SCHEME THROUGHOUT THE HISTORY OF THE
ACT.  IF REVIEW IS TO BE FOUND WITHIN THE ACT, IT MUST BE BECAUSE OF
PROVISIONS OTHER THAN THOSE IN SEC. 17(9). 

SECOND.  THE ONLY OTHER PROVISION IN THE INTERSTATE COMMERCE ACT
WHICH AFFORDS JUDICIAL REVIEW OF AN ORDER IS SEC. 16.  THAT SECTION,
HOWEVER, COMES INTO FORCE ONLY WHEN AN AWARD FOR DAMAGES IS MADE. 
REJECTION BY THE COMMISSION OF A MONEY CLAIM IS OUTSIDE THE EXPRESS
TERMS OF THAT SECTION AND NOT WITHIN THAT CAN FAIRLY BE IMPLIED FROM
ANY LANGUAGE IN IT.  A GENERAL ARGUMENT OF FAIRNESS IS MADE THAT SINCE
THIS SECTION PROVIDES FOR COURT REVIEW WHEN AN AWARD IS MADE WHERE THE
CARRIER LOSES, THE SHIPPER IS ENTITLED TO REVIEW WHEN THE CARRIER
WINS.  LEAVING ASIDE, TEMPORARILY, THE FACT THAT WHAT CONGRESS HAS
WRITTEN IN SEC. 9 FORECLOSES COURT REVIEW, TO YIELD TO SUCH AN
INFERENCE IN FAVOR OF A SHIPPER WHOSE CLAIM IS DENIED RAISES
INSUPERABLE DIFFICULTIES ONCE WE LEAVE THE TEXT AND SCHEME OF THE ACT
AND GO AT LARGE AS TO COURT REVIEW.  THUS THERE WOULD BE NO LIMIT ON
THE TIME IN WHICH REVIEW OF THE COMMISSION'S DISMISSAL OF THE
REPARATION CLAIM COULD BE BROUGHT, WHEREAS SEC. 16 FIXES A TIME LIMIT
FOR SUITS AGAINST THE CARRIER ON AWARDS BY THE COMMISSION.  43 STAT.
633, AS AMENDED, 49 U.S.C. SEC. 16(3)(F).  THIS IS JUST ONE OF THE
OBSTRUCTIONS IF WE ARE TO IMPLY COURT REVIEW OF ORDERS DISALLOWING
REPARATION CLAIMS BECAUSE CONGRESS HAS SEEN FIT TO ALLOW SUITS ON
ORDERS GRANTING AN AWARD.  IN OTHER RESPECTS THE COURT WOULD HAVE TO
LEGISLATE FOR CONGRESS.  WHAT EFFECT IS TO BE GIVEN TO THE COMMISSION'S
FINDING?  IF THE SHIPPER RECEIVES AN AWARD OF DAMAGES AND SUES THE
CARRIER THEREON, SEC. 16(2) PROVIDES THAT THE COMMISSION'S FINDINGS ARE
PRIMA FACIE EVIDENCE.  41 STAT. 491, AS AMENDED, 49 U.S.C. SEC. 16(2). 
ARE WE TO CREATE THE SAME RULE JUDICIALLY, THOUGH CONGRESS HAS NOT DONE
SO, WHEN THE SHIPPER FAILS BEFORE THE COMMISSION?  MAY THE SHIPPER
INTRODUCE NEW EVIDENCE IN THE DISTRICT COURT?  WHEN THE SHIPPER SUES
THE COMMON CARRIER, THE COMMISSION'S ACTION IN MAKING AN AWARD "CUTS
OFF NO DEFENSE, INTERPOSES NO OBSTACLE TO A FULL CONTESTATION OF ALL
THE ISSUES, AND TAKES NO QUESTION OF FACT FROM EITHER COURT OR JURY." 
MEEKER & CO. V. LEHIGH VALLEY R. CO., 236 U.S. 412, 430.  BUT IF THE
UNSUCCESSFUL SHIPPER CAN SAVE UP EVIDENCE UNTIL HE GETS IN COURT, THE
ADVANTAGES OF A COMMISSION HEARING ARE DESTROYED.  WHAT WILL BE THE
SCOPE OF THE COURT'S JURISDICTION?  WOULD THE DISTRICT COURT DETERMINE
ONLY LIABILITY, OR ALSO THE AMOUNT TO BE RECOVERED, OR ONLY THAT THE
COMMISSION ACTED WITHOUT JUSTIFICATION IN FACT OR CONTRARY TO LAW?  THE
ANSWER TO NONE OF THESE QUESTIONS CAN BE FOUND IN SEC. 16.  YET, ONE
WOULD SUPPOSE, IF REVIEW IN THIS SITUATION IS TO BE DERIVED FROM SEC.
16, SOME GUIDES FOR ITS EXERCISE SHOULD ALSO BE FOUND IN THAT SECTION,
CONSIDERING THE PARTICULARITIES WITH WHICH IT DEFINES REVIEW IN THE
INSTANCES AUTHORIZING COURT ACTION.  THEREFORE, THIS COURT HAS HELD:
"SECTION 16(2) DOES NOT PERMIT SUIT IN THE ABSENCE OF AN AWARD, AND IF
THE COMMISSION DENIES HIM RELIEF, A CLAIMANT IS REMEDILESS."  BALTIMORE
& OHIO R. CO. V. BRADY, 288 U.S. 448, 458. 

MONEY DAMAGES ARE PART OF THE REGULATORY SCHEME.  MITCHELL COAL &
COKE CO. V. PENNSYLVANIA R. CO., 230 U.S. 247, 258.  BUT WHILE THE
COMMISSION MAY DETERMINE THAT RATES FOR THE FUTURE BE REDUCED, IT IS
NOT REQUIRED TO AWARD DAMAGES FOR THE HIGHER RATES IN THE PAST.  THUS
IT IS NOT AT ALL STRANGE THAT ITS ACTION BE NOT SUBJECT TO COURT REVIEW
WHERE THE SHIPPER HAS FAILED TO PERSUADE THE COMMISSION TO AWARD
DAMAGES.  BALTIMORE & OHIO R. CO. V. BRADY, 288 U.S. 448, 458. 
ESPECIALLY IS THIS TRUE WHEN CONGRESS HAS PROVIDED FOR AN ALTERNATIVE
PROCEDURE WHEREBY THE SHIPPER WOULD HAVE BEEN ABLE TO GO TO COURT. 
THEREFORE, EVEN WITHOUT ANY EXPLICIT PROVISION IT WOULD BE A REASONABLE
INFERENCE THAT CONGRESS DID NOT INTEND TO GRANT A REVIEW WHERE THE
SHIPPER HAS DECIDED TO SEEK HIS DAMAGES BEFORE THE COMMISSION. 

EVEN THOUGH CONGRESS PROVIDED ALTERNATE METHODS OF SECURING DAMAGES,
AND AUTHORIZED COURT REVIEW WHEN THE COMMISSION SUSTAINED A MONEY
CLAIM, BUT NOT WHEN IT DENIED SUCH A CLAIM, CONGRESS DID NOT LEAVE
MERELY TO RATIONAL INFERENCE THAT UPON DENIAL OF A MONEY AWARD BY THE
COMMISSION, THE SHIPPER COULD NOT AGAIN TRY HIS LUCK IN COURT.  BY SEC.
9 CONGRESS GAVE THE SHIPPER HIS CHOICE OF FORUM:  HE COULD ASK FOR
DAMAGES EITHER FROM THE COMMISSION OR A COURT, BUT COULD "NOT HAVE THE
RIGHT TO PURSUE BOTH OF SAID REMEDIES"; HE "MUST IN EACH CASE ELECT
WHICH ONE OF THE TWO METHODS OF PROCEDURE HEREIN PROVIDED FOR HE  ...
WILL ADOPT."  24 STAT. 382, AS AMENDED, 49 U.S.C. SEC. 9.  IF THE
SHIPPER ASKS THE COMMISSION TO AWARD HIM DAMAGES AND IT GOES AGAINST
HIM, CONGRESS HAS BARRED REVIEW OF THE DENIAL OR REVISION OF THE AMOUNT
OF THE AWARD.  BALTIMORE & O.R. CO. V. BRADY, 288 U.S. 448, 458-59. 
SINCE CONGRESS GAVE THE SHIPPER THE ALTERNATIVE OF ADMINISTRATIVE OR
JUDICIAL RELIEF, THERE CAN BE NO QUESTION BUT THAT CONGRESS WAS
CONSTITUTIONALLY FREE TO MAKE FINAL THE ADMINISTRATIVE CHOICE. 

THIRD.  SINCE ACCESS TO COURT REVIEW OF AN ORDER DENYING REPARATIONS
WAS BARRED BY THE INTERSTATE COMMERCE ACT, SUCH REVIEW IS NOT AVAILABLE
UNDER THE GENERAL JURISDICTION OF THE DISTRICT COURTS.  28 U.S.C. SEC.
1337.  IT HAS NEVER BEEN SUGGESTED, DURING SOME SIXTY YEARS OF ACTIVE
LITIGATION OVER THIS PROBLEM, THAT FOR REVIEW OF SUCH AN ORDER RESORT
MAY BE HAD TO A COURT OF EQUITY OUTSIDE THE FRAMEWORK OF THE INTERSTATE
COMMERCE ACT.  EVEN THE GOVERNMENT DOES NOT NOW SUGGEST IT, AND
NATURALLY SO.  DUE REGARD FOR THE EXPLICIT PROVISIONS OF THE ACT
PRECLUDES IT. AND FOR THESE REASONS: 

(1)  THE SPECIFIC TERMS OF SEC. 17(9) WHICH ALONE GIVE REVIEWING
POWER TO THE COURTS, SAVE IN CASES WHERE THE CARRIER HAS BEEN HELD TO
OWE MONEY, DO SO "UNDER THOSE PROVISIONS OF LAW APPLICABLE IN THE CASE
OF SUITS TO ENFORCE, ENJOIN, SUSPEND, OR SET ASIDE ORDERS OF THE
COMMISSION, BUT NOT OTHERWISE."  54 STAT. 916, 49 U.S.C. SEC. 17(9). 
IT IS OBVIOUS THAT REVIEW WOULD BE "OTHERWISE" IF THE UNSUCCESSFUL
SHIPPER BE PERMITTED TO BRING AN ACTION UNDER 28 U.S.C. SEC. 1337. 
THIS REASON EXISTS INDEPENDENTLY OF THE FACT THAT SEC. 9 ALSO PROHIBITS
COURT ACTION AFTER AN ATTEMPT TO RECOVER DAMAGES IS MADE BEFORE THE
COMMISSION.  IT IS ALSO INDEPENDENT OF THE FACT THAT PROVISIONS OF
TITLE 28 DO NOT MAKE REVIEWABLE ORDERS FOR WHICH THE INTERSTATE
COMMERCE ACT DOES NOT PROVIDE REVIEW. 

(2)  BECAUSE OF THESE PROVISIONS, REVIEW OF REPARATION CLAIMS DIFFERS
FROM THE SITUATION IN SHIELDS V. UTAH I.C.R. CO., 305 U.S. 177.  THERE
THE COURT WAS NOT CONFRONTED WITH AN ENACTMENT WHICH SAID THAT IF A
PERSON SOUGHT THE COMMISSION'S AID HE COULD NOT THEREAFTER GO TO
COURT.  THE SHIELDS CASE IS INAPPOSITE ON ANOTHER GROUND.  BY
DETERMINING THAT A CERTAIN RAILROAD WAS SUBJECT TO THE INTERSTATE
COMMERCE ACT, THE COMMISSION PLACED THE RAILROAD UNDER THE ACTIVE
HAZARDS OF CRIMINAL SANCTIONS.  EQUITY WAS INVOKED FOR ONE OF ITS
ANCIENT FUNCTIONS OF STAYING A MULTIPLICITY OF CRIMINAL PROSECUTIONS TO
AVOID IRREPARABLE HARM.  SEE 305 U.S. AT 183, AND SWITCHMEN'S UNION OF
NORTH AMERICA V. NATIONAL MEDIATION BOARD, 320 U.S. 297, 306.  HERE
THERE IS NOT THE REMOTEST GROUND FOR APPEAL TO EQUITY.  IT IS MERELY A
MATTER OF DOLLARS AND CENTS - NOT THE HAZARDS OF CRIMINAL PROSECUTION -
AND AN INSISTENCE ON HAVING TWO MODES OF RECOVERING MONEY DAMAGES WHEN
CONGRESS HAS GIVEN SHIPPERS THE CHOICE OF ONE OR THE OTHER.  THERE IS A
TOTAL ABSENCE OF ANY OF THE TRADITIONAL GROUNDS FOR EQUITABLE RELIEF. 
CF. UNITED STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299, 314-5. 

NOR IS REVIEW PERMITTED UNDER SEC. 1336 OF TITLE 28(1948), IF IT IS
DETERMINED THAT THE TYPE OF ORDER INVOLVED IS NOT OF THE NATURE CALLING
FOR A THREE-JUDGE COURT.  THE GOVERNMENT RELIED ON THE SPECIAL SCHEME
OF THE URGENT DEFICIENCIES ACT AS INCORPORATED IN THE INTERSTATE
COMMERCE ACT CONFERRING JURISDICTION TO REVIEW ORDERS OF THE
COMMISSION.  THIS SCHEME REQUIRES REVIEW BY A THREE-JUDGE COURT.  THE
COURT REJECTS THAT CLAIM ON THE GROUND THAT A REPARATION ORDER IS NOT
THE TYPE OF ORDER SO REVIEWABLE.  INSTEAD THE COURT FINDS JURISDICTION
IN THE DISTRICT COURT TO ENTERTAIN A PETITION TO REVIEW AN ORDER OF THE
COMMISSION DENYING REPARATION IN SEC. 41(28) OF TITLE 28(1946 ED.), NOW
SEC. 1336.  BUT JURISDICTION UNDER SEC. 41(28) CARRIES ALSO THE
REQUIREMENT OF A THREE-JUDGE COURT.  SEE SECS. 41-47, NOW C. 157 OF
TITLE 28 OF THE REVISED CODE.  NO JURISDICTION CAN BE DERIVED FROM SEC.
41(28) OF TITLE 28 UNLESS THE ORDER IS OF THE TYPE THAT IS REVIEWABLE
BY A THREE-JUDGE COURT.  TO REJECT THE LATTER IS NECESSARILY TO HOLD
THAT NO JURISDICTION OF THE DISTRICT COURT IS DERIVABLE FROM SEC.
41(28) OF TITLE 28, NOW SEC. 1336.  FN10 

MOREOVER, A SUIT FILED UNDER THE JURISDICTION OF SEC. 41(28) OF TITLE
28 IS ONE AGAINST THE UNITED STATES WITH THE INTERSTATE COMMERCE
COMMISSION AS A PARTY ONLY IF IT CHOOSES TO INTERVENE.  28 U.S.C. SECS.
2322, 2323.  CONGRESSIONAL CONSENT IS REQUIRED TO AUTHORIZE SUCH A SUIT
AND CONGRESSIONAL CONSENT HAS BEEN AUTHORIZED ONLY UNDER THE CONDITIONS
REQUISITE FOR A THREE-JUDGE COURT PROCEEDING FOR WHICH THIS COURT FINDS
NO JURISDICTION, 28 U.S.C. SECS. 2321-2325.  ON THE BASIS OF THE RESULT
IN THIS CASE THE DECISION BELOW IN THE GREAT LAKES STEEL CASE, NO. 749
THIS TERM, MUST OF COURSE BE REVERSED.  AND SO THIS COURT WOULD DIRECT
THE ALLOWANCE OF A SUIT AGAINST THE UNITED STATES, ALTHOUGH CONGRESS
HAS NOT GIVEN CONSENT THERETO.  THE ONLY POSSIBLE ESCAPE FROM THIS
CONCLUSION IS THAT JURISDICTION IS TO BE DENIED WHEN A PRIVATE SHIPPER
SEEKS TO GO INTO COURT AFTER THE COMMISSION HAS DISMISSED HIS COMPLAINT
FOR DAMAGES, AS IN THE GREAT LAKES STEEL CASE, BUT JURISDICTION SOMEHOW
OR OTHER SHOULD BE ACKNOWLEDGED WHEN THE GOVERNMENT IS THE SHIPPER. 
THE DEFENSE OF SOVEREIGN IMMUNITY, MOREOVER, CANNOT BE AVOIDED BY
DIRECTING THAT THE SUIT PROCEED ONLY AGAINST THE INTERSTATE COMMERCE
COMMISSION.  THERE IS NO CLAIM THAT THE COMMISSION ACTED
UNCONSTITUTIONALLY, OR THAT IT PROCEEDED UNDER AN UNCONSTITUTIONAL
STATUTE, OR THAT IT ACTED BEYOND THE AUTHORITY CONFERRED BY A VALID
STATUTE.  IT MERELY ACTED WITHIN THE SCOPE OF ITS AUTHORITY AND MADE A
DETERMINATION, AS IT WAS LEGALLY BOUND TO DO, BASED UPON THE LAW AND
THE FACTS.  THE DIFFICULTY OF SOVEREIGN IMMUNITY FORCIBLY DEMONSTRATES
AGAIN WHY A METHOD OF COURT REVIEW CANNOT BE FOUND OUTSIDE THE
PROVISIONS OF THE INTERSTATE COMMERCE ACT. 

FOURTH.  WE NOW TURN TO SEC. 9.  THE LANGUAGE LEAVES NO ROOM FOR
DOUBT.  BUT IT IS NOW URGED (THOUGH THE GOVERNMENT HAS NOT SO ARGUED IN
THE FOUR DECISIONS THAT WENT AGAINST PRIVATE SHIPPERS) THAT WHERE THE
DAMAGE CLAIM WAS BASED ON OTHER THAN A MERE ARITHMETICAL OVERCHARGE,
THE ELECTION AFFORDED BY SEC. 9 IS ILLUSORY.  THIS IS SO, IT IS ARGUED,
BECAUSE WHEN COMPLAINT IS MADE THAT RATES WERE UNFAIR, PREJUDICIAL OR
UNREASONABLE, THE DOCTRINE OF TEXAS & PAC. R. CO. V. ABILENE COTTON OIL
CO., 204 U.S. 426, IS BROUGHT INTO OPERATION.  IT IS SAID THAT THE
GOVERNMENT NEVER HAD AN OPPORTUNITY TO GO INTO COURT UNTIL THE
COMMISSION DISMISSED ITS COMPLAINT.  SUFFICIENT RESPECT IS GIVEN TO
SEC. 9, SO THE ARGUMENT RUNS, BY READING IT TO BAR "INITIATING" ANOTHER
ACTION IN THE COURT AFTER IT HAS FAILED BEFORE THE COMMISSION, NOT TO
REVIEWING THE COMMISSION'S ACTION.  SO TO ARGUE IS TO REWRITE WHAT
CONGRESS HAS WRITTEN.  CONGRESS DID NOT BAR "INITIATING"; IT BARRED
"THE RIGHT TO PURSUE."  THE COURT CONCEDES THAT SEC. 9 IS A BAR WHEN A
SHIPPER COULD HAVE GONE IN THE FIRST INSTANCE TO THE COURTS.  THIS WAS
SO RULED IN BALTIMORE & O.R. CO. V. BRADY, 288 U.S. 448.  BUT WHAT
LANGUAGE AFFORDS A BASIS FOR A DISTINCTION WHEN A DETERMINATION OF A
TRANSPORTATION ISSUE MUST BE MADE BY THE COMMISSION BEFORE THE CASE CAN
PROCEED TO JUDGMENT?  MOREOVER, THE RESULT OF THE COURT'S DECISION IS
TO MAKE THE COMMISSION'S DECISION FINAL IN THOSE INSTANCES WHERE THE
COMMISSION IS ACTING PURELY JUDICIALLY - MERELY A MATTER OF APPLYING
THE LAW TO THE FACTS - BUT NOT FINAL WHEN THE COMMISSION, ACTING IN THE
REALM OF ITS ADMINISTRATIVE EXPERTNESS, FOUND A PRACTICE LEGAL, AND
THEREFORE DENIED DAMAGES.  ADJUDICATION AND SETTLED PRACTICE BEFORE THE
COMMISSION LIKEWISE DISPROVE THIS DISCOVERY THAT THE CHOICE GIVEN BY
CONGRESS IN SEC. 9 IS A SHAM. 

THE COMMISSION MUST OFTEN PASS ON THE LEGALITY OF A PARTICULAR
PRACTICE OF A CARRIER; SUCH PROCEEDINGS MAY SERVE AS THE BASIS FOR
REPARATIONS.  UNDER PART I OF THE TRANSPORTATION ACT, RELATING TO RAIL
CARRIERS, THE SHIPPER MAY ASK THE COMMISSION FOR A DECLARATION THAT A
PRACTICE HAS BEEN ILLEGAL AND BASE A CLAIM OF DAMAGES ON SUCH
ILLEGALITY UNDER SEC. 8 OF THE ACT.  HIS OTHER COURSE IS TO SECURE A
COMMISSION DETERMINATION ONLY AS TO THE ILLEGALITY OF THE PRACTICE AND
NOT ASK FOR AN AWARD, RESERVING THE CLAIM OF DAMAGES FOR COURT ACTION. 
THIS MAY BE DONE IN ONE OF TWO WAYS.  HE MAY BEGIN BY FILING HIS SUIT
IN COURT AND ASK THE COURT TO HOLD THE CASE UNTIL HE HAS OBTAINED AN
ADMINISTRATIVE DETERMINATION FROM THE COMMISSION.  FN11  THERE IS NO
JURISDICTIONAL BAR TO SUCH A PROCEDURE.  IN TEXAS & PAC. R. CO. V.
ABILENE COTTON OIL CO., 204 U.S. 426, THE COURT SAID THE CASE SHOULD BE
DISMISSED, BUT PREOCCUPATION WAS WITH THE NECESSITY FOR PRIOR
ADMINISTRATIVE DETERMINATION, NOT WITH WHETHER THERE WAS JURISDICTION
IN THE SENSE OF POWER TO HOLD THE CASE UNTIL THERE HAD BEEN A
COMMISSION DETERMINATION.  CASES - DECIDED AFTER THE ABILENE CASE -
HAVE CLEARLY RECOGNIZED THAT THERE IS JURISDICTION TO HOLD THE CASE,
AND THIS PROCEDURE HAS BEEN SUGGESTED IN A NUMBER OF THEM.  FN12
MITCHELL COAL & COKE CO. V. PENNSYLVANIA R. CO., 230 U.S. 247, 267;
MORRISDALE COAL CO. V. PENNSYLVANIA R. CO., 230 U.S. 304, 314-5; SEE
SMITH V. HOBOKEN R. CO., 328 U.S. 123, 133; THOMPSON V. TEXAS MEXICAN
R. CO., 328 U.S. 134, 151; SEE ALSO BELL POTATO CHIP CO. V. ABERDEEN
TRUCK LINE, 43 M.C.C. 337, 343. 

THE OTHER METHOD OPEN TO A SHIPPER WHO DESIRES TO AVAIL HIMSELF OF
THE COURT REMEDY GIVEN BY SEC. 9 IS TO INITIATE PROCEEDINGS BEFORE THE
COMMISSION AND TO ASK MERELY FOR A DECLARATION REGARDING THE LEGALITY
OF A PAST PRACTICE, BUT NOT FOR DAMAGES.  THIS COURSE IS MANIFESTED BY
THE COMPLAINTS BEFORE THE COMMISSION, ASKING MERELY FOR A DECLARATION
WITHOUT ANY AD DAMNUM.  FOR THE PERIOD BETWEEN JULY, 1947, AND
FEBRUARY, 1949, 46 SUCH CASES WERE FILED UNDER PART I OF THE ACT. 
UNDER PART II, 22 COMPLAINTS HAVE BEEN FILED SINCE JANUARY 1, 1948,
REQUESTING SUCH A DECLARATION AS TO THE LEGALITY OF A PRACTICE.  FN13 

THE GOVERNMENT THUS HAD A REAL CHOICE.  TERMINAL WAREHOUSE CO. V.
PENNSYLVANIA R. CO., 297 U.S. 500, 507-8.  BUT, HAVING FIRST SOUGHT THE
ADVANTAGES OF A COMMISSION AWARD, IT FORECLOSED ITSELF FROM PURSUING A
JUDICIAL REMEDY WHEN ITS EXPECTATIONS FAILED.  A DOUBLE REMEDY WHICH
CONGRESS DENIED, THIS COURT OUGHT NOT TO GRANT.  THE GOVERNMENT "HAD A
CHOICE  ...  BETWEEN A REMEDY AT THE HANDS OF THE COMMISSION AND A
REMEDY BY SUIT, BUT BY EXPRESS PROVISION OF THE STATUTE IT COULD NOT
HAVE THEM BOTH."  TERMINAL WAREHOUSE CO. V. PENNSYLVANIA R. CO., SUPRA,
P. 508. 

THE CONCLUSION REACHED BY A READING OF THE STATUTE IS REENFORCED BY
THE ADJUDICATED CASES.  IN STANDARD OIL CO. V. UNITED STATES, 283 U.S.
235, THREE DISTINCT GROUNDS WERE GIVEN FOR AFFIRMING THE DISTRICT
COURT'S DISMISSAL FOR WANT OF JURISDICTION OF A SUIT TO REVIEW AN ORDER
OF THE COMMISSION DISMISSING A CLAIM FOR DAMAGES.  ONE REASON WAS THAT
THE ORDER WAS "A NEGATIVE ORDER"; THAT REASON HAS BEEN DISPLACED BY
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125.  BUT THE
STANDARD OIL DECISION WAS LEFT INTACT BY THE ROCHESTER DECISION, FOR
THE OPINION IN THAT CASE EXPLICITLY POINTED OUT THAT "THE MAIN BASIS"
OF THE STANDARD OIL DECISION "WAS NOT THE 'NEGATIVE ORDER' DOCTRINE BUT
(THAT) THE STATUTORY SCHEME DEALING WITH REPARATIONS" PRECLUDED REVIEW
OF AN ORDER DENYING MONEY DAMAGES.  307 U.S. AT P. 140, N. 23.  THE
"STATUTORY SCHEME" WAS THUS DEFINED IN THE STANDARD OIL CASE:  "HAVING
ELECTED TO PROCEED AND HAVING PROCEEDED TO A DETERMINATION BEFORE THE
COMMISSION, APPELLANT WAS, BY FORCE OF THIS PROVISION (SEC. 9),
PRECLUDED FROM SEEKING REPARATION UPON THE SAME CLAIMS BY THE
ALTERNATIVE METHOD OF PROCEDURE."  283 U.S. AT 241; SEE ALSO MR.
JUSTICE CARDOZO FOR THE COURT IN TERMINAL WAREHOUSE CO. V. PENNSYLVANIA
R. CO., 297 U.S. 500, 507-8.  THE STANDARD OIL COMPANY AS A SHIPPER WAS
PRECISELY IN THE SAME SITUATION AS THE UNITED STATES IN THIS CASE; THE
UNITED STATES PURSUED THE SAME COURSE IN THIS CASE AS DID THE STANDARD
OIL COMPANY.  THE STANDARD OIL COMPANY WAS NOT "INITIATING" AN ACTION
IN THE DISTRICT COURT BUT WAS SEEKING JUDICIAL REVIEW OF THE
COMMISSION'S ACTION, AND THIS IS PRECISELY WHAT THE UNITED STATES IS
DOING IN THIS CASE.  THE ONLY DIFFERENCE BETWEEN THE STANDARD OIL CASE
AND THIS CASE IS THAT IN THE EARLIER CASE THE STANDARD OIL COMPANY WAS
THE PLAINTIFF, AND IN THIS CASE IT IS THE GOVERNMENT.  WHAT THE COURT
SAID IN THE STANDARD OIL CASE IS EQUALLY APPLICABLE HERE.  "IT IS OF NO
IMPORTANCE THAT THE ADJUDICATION SOUGHT IS TO TAKE THE FORM OF A
DIRECTION TO THE COMMISSION TO GRANT THE PRAYER OF THE COMPLAINTS FILED
BEFORE THAT BODY, ETC., INSTEAD OF A PLENARY JUDGMENT TO THE SAME END,
FOR THE PRAYER IN THAT FORM IS NOTHING LESS THAN AN ATTEMPT TO AVOID
THE STATUTE BY INDIRECTION."  283 U.S. AT P. 241. 

IN VIEW OF THE FACT THAT THE ROCHESTER CASE EXPRESSLY SAVED THAT
PHASE OF THE STANDARD OIL DECISION WHICH IS DECISIVE OF THE PROBLEM
BEFORE US NOW - "THE STATUTORY SCHEME DEALING WITH REPARATIONS" - THE
COURT'S HOLDING THAT THE ROCHESTER CASE IMPLIEDLY OVERRULED THE
STANDARD OIL CASE MEANS OF COURSE THAT TO THIS EXTENT THE COURT TODAY
OVERRULES THE ROCHESTER CASE, NOT THAT THE ROCHESTER CASE HAD OVERRULED
THE STANDARD OIL CASE, WHOLLY APART FROM THE FACT THAT THE STANDARD OIL
DECISION WAS THE BASIS OF A DECISION LONG AFTER THE ROCHESTER CASE. 
FN14  ASHLAND COAL & ICE CO. V. UNITED STATES, 325 U.S. 840. 

AND TO WHAT END THESE DISLOCATIONS OF SO MANY DECISIONS?  WE HAVE
BEEN VOUCHSAFED NO CONSIDERATIONS OF POLICY, NO REVEALED INJUSTICE
FLOWING FROM THE CONSTRUCTION THUS FAR PLACED UPON THE REPARATIONS
PROVISION OF THE INTERSTATE COMMERCE ACT, NO DIFFICULTIES IN ITS
ADMINISTRATION, NO DISCLOSURE OF NEW MATERIALS FOR THE PROPER
CONSTRUCTION OF AN OLD STATUTE.  AND THE CURRENT OF SETTLED JUDICIAL
CONSTRUCTION AS WELL AS ADMINISTRATIVE PRACTICE IS NOW REVERSED AGAINST
THE VIGOROUS PROTEST OF THE AGENCY CHARGED WITH THE ADMINISTRATION OF
THE LAW ALTHOUGH ONLY A WEEK AGO WE GREATLY RELIED ON ADMINISTRATIVE
PRACTICE AS THE BASIS OF JUDICIAL INTERPRETATION. 

THE RESULT REACHED IN THE STANDARD OIL CASE WAS NOT LIMITED TO
CONTROVERSIES WHICH DID NOT INVOLVE THE "PRIMARY JURISDICTION"
DOCTRINE.  THE DISTRICT COURT IN THAT CASE DID ASSUME ARGUENDO THAT THE
ISSUE INVOLVED NOTHING WHICH REQUIRED ADMINISTRATIVE DETERMINATION
BEFORE IT ADDRESSED ITSELF TO THE BASIC JURISDICTIONAL QUESTION.  SEE
STANDARD OIL CO. V. UNITED STATES, 41 F.2D 836.  ON APPEAL, HOWEVER,
THIS COURT DID NOT CONFINE IN ANY WAY THE BAR IMPOSED BY SEC. 9 TO
RESORT TO A DISTRICT COURT AFTER AN UNSUCCESSFUL RESORT TO THE
COMMISSION FOR REPARATIONS.  IT READ SEC. 9 AS IT WAS WRITTEN, AS A
PROVISION FOR A CHOICE OF TRIBUNALS SO THAT, IF DAMAGES ARE SOUGHT FROM
THE COMMISSION AND DENIED BY IT, THE COURTS ARE CLOSED TO A FURTHER
CONSIDERATION OF SUCH A CLAIM. 

THE SUGGESTION AT THIS LATE DATE THAT THE ELECTION SO SPECIFICALLY
DEFINED BY SEC. 9 APPLIES ONLY TO THOSE INSTANCES IN WHICH NO NEED FOR
COMMISSION DETERMINATION OF TRANSPORTATION ISSUES MAY BE REQUIRED IS
COMPLETELY DISPELLED BY BRADY V. UNITED STATES, 283 U.S. 804.  IN THE
BRADY CASE, DAMAGES WERE BASED ON THE CLAIM THAT THE CARRIER'S
PRACTICES WERE UNJUST, UNREASONABLE AND UNDULY PREJUDICIAL - THE EXACT
GROUNDS URGED IN THIS CASE.  THE COMMISSION REFUSED TO AWARD
REPARATIONS IN THE AMOUNT CLAIMED BY BRADY AND THE SHIPPER BROUGHT
PRECISELY THE SAME KIND OF SUIT THAT THE UNITED STATES AS SHIPPER
BROUGHT HERE.  BRADY ARGUED THAT SINCE THE CONTROVERSY WAS WITHIN THE
COMMISSION'S SO-CALLED "PRIMARY JURISDICTION," HE NEVER HAD THE CHOICE
OF PROCEEDING IN COURT RATHER THAN GOING TO THE COMMISSION.  THE
DISTRICT COURT DISMISSED HIS SUIT FOR WANT OF JURISDICTION TO REVIEW
THE ACTION OF THE COMMISSION AND THIS COURT SUSTAINED THAT DENIAL OF
JURISDICTION.  IT DID SO ON THE BASIS OF THE STANDARD OIL DECISION
WHICH HAD BEEN RENDERED A MONTH BEFORE, FOR THE STANDARD OIL CASE, AS
DID THE BRADY CASE, AND AS DOES THIS CASE, INVOLVED QUESTIONS WHICH, AS
SUCH, REQUIRED PRELIMINARY COMMISSION DETERMINATION. 

THE SCOPE OF THE STANDARD OIL AND BRADY CASES IS MADE UNAMBIGUOUSLY
CLEAR BY RELIANCE ON THEM FOR THE DECISION IN ALLISON & CO. V. UNITED
STATES, 296 U.S. 546, 664, AND ASHLAND COAL & ICE CO. V. UNITED STATES,
325 U.S. 840.  IN EACH CASE ISSUES WERE INVOLVED WHICH INDUBITABLY FELL
UNDER THE REQUIREMENT OF THE "PRIMARY JURISDICTION" DOCTRINE.  IN EACH
OF THESE CASES THE SHIPPER RELIED ON THE CLAIM THAT HIS CASE WAS
DISTINGUISHABLE FROM THE STANDARD OIL AND THE BRADY CASES.  THE SAME
DISTINCTIONS WHICH ARE NOW ADVANCED BY THE GOVERNMENT WERE THEN
ADVANCED BY THE SHIPPER BUT RESISTED BY THE GOVERNMENT.  THE GOVERNMENT
THEN RIGHTLY INSISTED THAT THE STANDARD OIL AND THE BRADY CASES COULD
NOT BE RESTRICTED TO SITUATIONS WHERE THE "PRIMARY JURISDICTION"
DOCTRINE WAS INOPERATIVE AND THAT THE DECISION IN THOSE CASES - THAT
SEC. 9 IS UNQUALIFIED IN PRECLUDING RESORT TO JUDICIAL REVIEW IN ALL
CASES WHERE DAMAGES HAD FIRST BEEN DENIED BY THE COMMISSION - WAS
COMPELLED BY A PROPER CONSTRUCTION OF SEC. 9.  THIS POSITION OF THE
GOVERNMENT WAS CONSIDERED SO INCONTESTABLE THAT THE COURT DEEMED ORAL
ARGUMENT NEEDLESS AND GRANTED THE GOVERNMENT'S MOTION TO AFFIRM.  THE
GOVERNMENT'S INTEREST HAS CHANGED, BUT NOT THE FORCE OF ITS POSITION
WHEN IT WAS WITHOUT SELF-INTEREST. 

I WOULD AFFIRM. 

FN1  COMPARE BRIEF FOR UNITED STATES AND INTERSTATE COMMERCE
COMMISSION, PP. 7-22, GREAT LAKES STEEL CORP. V. UNITED STATES, 81
F.SUPP.  450, WITH BRIEF FOR UNITED STATES, PP. 14-39, UNITED STATES V.
INTERSTATE COMMERCE COMMISSION, 78 F.SUPP.  780.  SINCE THE ARGUMENT OF
THIS CASE THE GREAT LAKES STEEL CASE HAS BEEN BROUGHT HERE ON APPEAL,
NO. 749, THIS TERM, AND THE GOVERNMENT HAS ACKNOWLEDGED THE CONFLICT. 
SEE MOTION TO DEFER CONSIDERATION OF THE STATEMENT OF JURISDICTION,
GREAT LAKES STEEL CORP. V. UNITED STATES, NO. 749, THIS TERM. 

FN2  54 STAT. 899, 49 U.S.C. SEC. 1 ET SEQ. 

FN3  24 STAT. 382, AS AMENDED, 49 U.S.C. SEC. 8. 

FN4  24 STAT. 382, AS AMENDED, 49 U.S.C. SEC. 9, 24 STAT. 383, AS
AMENDED, 49 U.S.C. SEC. 13. 

FN5  IT HELD THAT THE RATES FOR EXPORT APPLIED ONLY WHEN THE WHARVES
WERE PUBLIC, WHICH THESE WHARVES WERE NOT.  THE COMMISSION ALSO POINTED
OUT THAT THE RAILROADS HAD MADE OTHER CONCESSIONS TO THE GOVERNMENT;
THAT THE RATES CHARGED, TOGETHER WITH A REASONABLE ALLOWANCE FOR THE
SERVICES NOT PROVIDED, WERE STILL BELOW THE UPPER LIMITS OF
REASONABLENESS; THAT THE WHARFAGE CHARGES HAD BEEN ABSORBED BECAUSE OF
COMPETITIVE CONDITIONS.  264 I.C.C. 683, 269 I.C.C. 141. 

FN6  24 STAT. 383, AS AMENDED, 49 U.S.C. SEC. 13. 

FN7  24 STAT. 384, AS AMENDED, 49 U.S.C. SEC. 16. 

FN8  54 STAT. 916, 49 U.S.C. SEC. 17(9). 

FN9  THERE WAS NO COMMITTEE REPORT ON THIS LEGISLATION; IT WAS ADDED
TO AN APPROPRIATION BILL.  SEE 50 CONG. REC. 4527-8.  MR. FITZGERALD,
THE SPONSOR OF THE AMENDMENT, SAID THAT ITS SOLE PURPOSE WAS TO ABOLISH
THE COMMERCE COURT AND MAKE PROVISION FOR THE LITIGATION OVER WHICH
THAT COURT HAD JURISDICTION.  "IT DOES NOT GIVE ANY NEW RIGHT TO ANY
PARTIES."  50 CONG. REC. 4532, 4536, 4542.  THERE WAS AN ATTEMPT TO
ENLARGE THE REVIEW PROVISION SO AS TO GIVE SHIPPERS REVIEW WHERE
PREVIOUSLY IT DID NOT EXIST, BUT THIS AMENDMENT WAS DEFEATED AFTER
DEBATE.  50 CONG. REC. 4532, 4543-44.  IT WAS SAID:  "THE LEGISLATION
CONTAINED IN THIS BILL SIMPLY ABOLISHES A COURT THAT OUGHT NEVER TO
HAVE BEEN CREATED AND VESTS THE JURISDICTION WHICH IT NOW EXERCISES IN
THE DISTRICT COURTS OF THE UNITED STATES.  THAT IS ALL OF IT, AND THAT
IS ALL THERE OUGHT TO BE OF IT.  THERE OUGHT NOT TO BE ANY ATTEMPT TO
ENACT SUBSTANTIVE LAW IN THIS BILL.  THERE OUGHT NOT TO BE ANY ATTEMPT
TO HAVE AN INCREASE TO DECREASE OF THE POWERS OF THE COMMISSION, AND
THERE OUGHT NOT TO BE ANY ATTEMPT TO INCREASE OR DECREASE THE
JURISDICTION OF THE DISTRICT COURTS OVER THAT OF THE COMMERCE COURT. 
THE ONLY REASON WHY THE DISTRICT COURTS ARE DESIGNATED INSTEAD OF THE
CIRCUIT COURTS IS THAT THE CIRCUIT COURTS HAVE BEEN ABOLISHED SINCE THE
COMMERCE COURT WAS CREATED."  50 CONG. REC. 4536. 

FN10  IN UNITED STATES V. GRIFFIN, 303 U.S. 226, IT WAS HELD THAT
BECAUSE THE TYPE OF ORDER THERE INVOLVED WAS NOT THE TYPE REVIWEABLE BY
A THREE-JUDGE COURT, THE PHRASE THE "DISTRICT COURTS SHALL HAVE
JURISDICTION 'OF CASES BROUGHT TO ENJOIN, SET ASIDE, ANNUL OR SUSPEND
IN WHOLE OR IN PART ANY ORDER OF THE INTERSTATE COMMERCE COMMISSION',"
DID NOT CONFER JURISDICTION ON THE DISTRICT COURT.  303 U.S. AT 227
228.  THE QUOTED WORDS ARE THE PROVISION IN THE URGENT DEFICIENCIES ACT
AND ARE PRECISELY THE SAME PROVISION THAT WAS CARRIED OVER TO SEC.
41(28).  WHEN WE HAD THIS GENERAL PROBLEM HERE THE OTHER DAY IN UNITED
STATES V. JONES, 336 U.S. 641, IT WAS NOT SUGGESTED THAT THERE WAS
JURISDICTION TO REVIEW AN ORDER OF THE COMMISSION UNDER SEC. 41(28),
NOW SEC. 1336 OF TITLE 28.  INSTEAD, THE COURT AGREED WITH THE GRIFFIN
CASE THAT THE ORDER THERE INVOLVED WAS NOT OF A TYPE CALLING FOR A
THREE-JUDGE COURT AND THEREFORE THAT THE JURISDICTIONAL PROVISIONS OF
SEC. 41(28), NOW SEC. 1336 OF TITLE 28, WERE NOT APPLICABLE.  THE COURT
SIGNIFICANTLY REFERRED TO THE PROVISIONS OF SEC. 41(6), NOW SEC. 1339
OF TITLE 28, THE SECTION GIVING GENERAL JURISDICTION OVER SUITS ARISING
UNDER THE POSTAL LAWS, AS THE ONLY POSSIBLE SOURCE OF JURISDICTION.  IN
THE CONTEXT OF THIS CASE THE COMPARABLE PROVISION IS SEC. 41(8), NOW
SEC. 1337.  THE ONLY REASON WHY THE COURT NOW SEEKS TO WARP THE WHOLE
STRUCTURE OF TITLE 28 RATHER THAN TO RELY ON THE ONLY SECTION WHICH
CONCEIVABLY GIVES JURISDICTION TO A ONE-JUDGE COURT IS IN ORDER TO
ESCAPE THE EMBARRASSING FACT THAT SUCH A SUIT WOULD BE SQUARELY IN THE
FACE OF SEC. 9 OF THE INTERSTATE COMMERCE ACT.  OF COURSE EVEN THE
PROCEDURE ADOPTED IS IN THE FACE OF SEC. 9 OF THE INTERSTATE COMMERCE
ACT AS INTERPRETED IN FOUR PREVIOUS DECISIONS OF THE COURT.  BUT
RELIANCE ON SEC. 41(8), NOW SEC. 1337, WOULD AT LEAST HAVE THE VIRTUE
OF ONLY MUTILATING ONE ACT - THAT IS, THE INTERSTATE COMMERCE ACT -
RATHER THAN BOTH THAT ACT AND SEC. 41(28) OF TITLE 28(1946 ED.), NOW
SEC. 1336 AND C. 157 OF TITLE 28 OF THE REVISED CODE.    FN11  FOR THE
PERIOD SINCE APRIL 28, 1948, ALTHOUGH THERE HAVE BEEN NO INSTANCES IN
WHICH THE SHIPPER HAS ASKED FOR A DETERMINATION OF THE LEGALITY OF A
PRACTICE UNDER PART I OF THE ACT, IN A COMPLAINT WHICH ALSO STATED THAT
A COURT ACTION WAS BEING HELD IN ABEYANCE, THERE HAVE BEEN THIRTEEN
INSTANCES WHERE COMPLAINTS WERE FILED BEFORE THE COMMISSION ASKING ONLY
FOR A DETERMINATION OF THE LEGALITY OF A PRACTICE BECAUSE THE
COMPLAINANT THERE WAS THE DEFENDANT IN A CIVIL ACTION IN THE COURTS. 
SINCE JANUARY, 1948, THERE HAVE BEEN FIVE PROCEEDINGS UNDER PART II OF
THE ACT IN WHICH THE SHIPPER FIRST INSTITUTED SUIT IN THE COURTS AND
THEN ASKED THAT THE SUIT BE HELD IN ABEYANCE UNTIL THE COMMISSION MADE
A DETERMINATION AS TO THE LEGALITY OF A PARTICULAR PRACTICE.  IT SHOULD
BE POINTED OUT THAT UNDER PART II OF THE ACT THE COMMISSION HAS NO
POWER TO AWARD DAMAGES; THE DOCTRINE OF PRIMARY JURISDICTION, HOWEVER,
IS NEVERTHELESS APPLICABLE.  BELL POTATO CHIP CO. V. ABERDEEN TRUCK
LINE, 43 M.C.C. 337, 342-343. 

FN12  THE EL DORADO TERMINAL CO. LITIGATION DID NOT INVOLVE A CLAIM
BY A SHIPPER FOR RECOVERY OF AN OVERCHARGE BY A CARRIER.  THEREFORE,
THE DECISIONS IN GENERAL AMERICAN TANK CAR CORP. V. EL DORADO TERMINAL
CO., 308 U.S. 422, AND EL DORADO OIL WORKS V. UNITED STATES, 328 U.S.
12, DID NOT INVOLVE THE STATUTORY SCHEME RELATING TO REPARATIONS.  THE
CASES HAVE NO BEARING ON THE PROBLEM HERE - NAMELY THE JURISDICTIONAL
REQUIREMENTS OF SEC. 9 IN THE CONTEXT OF THE INTERSTATE COMMERCE ACT. 
THE EL DORADO LITIGATION WAS AN ORDINARY ACTION ON A CONTRACT. 
ENTANGLED, HOWEVER, IN THE PROPER CONSTRUCTION OF THAT CONTRACT WAS THE
ASCERTAINMENT OF A TRANSPORTATION FACT, WHICH, WITH DUE REGARD TO THE
ABILENE DOCTRINE, MADE PRIOR DETERMINATION BY THE INTERSTATE COMMERCE
COMMISSION APPROPRIATE.  TO THAT END IT WAS RULED, IN THE FIRST EL
DORADO CASE, THAT THE ACTION IN THE DISTRICT COURT SHOULD BE HELD FOR
SUCH ADMINISTRATIVE DETERMINATION.  GENERAL AMERICAN TANK CAR CORP. V.
EL DORADO TERMINAL CO., 308 U.S. 422.  THAT RULING DOES ESTABLISH THAT
SIMPLY BECAUSE A PRIOR DETERMINATION BY THE INTERSTATE COMMERCE
COMMISSION IS REQUIRED BEFORE A LITIGATION CAN PROCEED TO JUDGMENT DOES
NOT DEPRIVE A DISTRICT COURT OF JURISDICTION.  THIS CIRCUMSTANCE MERELY
CALLS FOR THE SUSPENSION OF THE EXERCISE OF JURISDICTION UNTIL THE
APPROPRIATE FACT IS ESTABLISHED BY THE INTERSTATE COMMERCE COMMISSION
AND THEN INTRODUCED IN EVIDENCE IN THE PENDING COURT CASE, INSTEAD OF
BEING ESTABLISHED INDEPENDENTLY IN COURT, AS IS USUALLY THE CASE. 
"WHILE WE REJECTED THE COMMISSION'S CONTENTION THAT THE DISTRICT COURT
HAD NO JURISDICTION TO HEAR THE CASE, WE ACCEPTED ITS CONTENTION THAT
DETERMINATION OF THE VALIDITY OF THE CHALLENGED PAST PRACTICES WAS FOR
THE COMMISSION."  EL DORADO OIL WORKS V. UNITED STATES, 328 U.S. 12,
17.  THE ORDER MADE BY THE INTERSTATE COMMERCE COMMISSION IN RESPONSE
TO THE REQUIREMENT OF THE FIRST EL DORADO CASE WAS NOT AN ORDER OF
DISMISSAL IN A REPARATION SUIT.  PROCEDURALLY IT DID NOT MAKE VERY MUCH
DIFFERENCE, THEREFORE, WHETHER THIS ORDER OF THE INTERSTATE COMMERCE
COMMISSION SHOULD HAVE BEEN ENTERED IN THE PENDING LITIGATION OR WAS
ALLOWED TO BE CONSIDERED IN A NEW PROCEEDING BEFORE THE DISTRICT
COURT.  AS A MATTER OF PROCEDURAL ELEGANCE IT WAS MORE APPROPRIATE FOR
IT TO HAVE FORMED PART OF THE THEN PENDING LITIGATION WHICH WAS
SUSPENDED PRECISELY FOR THE PURPOSE OF OBTAINING SUCH AN ORDER. 

IN ARMOUR & CO. V. ALTON R. CO., 312 U.S. 195, THE ESSENTIAL QUESTION
WAS WHETHER A PARTICULAR ISSUE COULD BE DETERMINED BY THE COURT OR, IN
CONFORMITY WITH THE ABILENE DOCTRINE, REQUIRED COMMISSION
DETERMINATION.  THE PREOCCUPATION OF THE CASE WAS WITH THAT ISSUE. 
AFTER HOLDING THAT THE DOCTRINE OF THE ABILENE CASE WAS APPLICABLE, THE
COURT AFFIRMED THE JUDGMENT BELOW REQUIRING A RULING FROM THE
INTERSTATE COMMERCE COMMISSION, WITHOUT CONSIDERING WHETHER THERE WAS
JURISDICTION IN THE SENSE OF POWER TO ENTERTAIN BUT HOLD THE CASE. 

FN13  THESE FIGURES ARE NOT GIVEN TO IMPLY THAT IN EVERY INSTANCE, OR
EVEN IN MOST INSTANCES, COMMISSION ACTION IS FOLLOWED BY A SUIT IN THE
COURT FOR DAMAGES.  THEIR SOLE PURPOSE IS TO SHOW THAT, BY NOT SEEKING
DAMAGES FROM THE COMMISSION, A COMPLAINANT LEAVES HIMSELF FREE, UNDER
SEC. 9, TO GO TO THE COURTS. 

THE COMMISSION PREFERS THAT THE SHIPPER FIRST FILE A SUIT IN THE
COURT BEFORE ASKING THE COMMISSION FOR A DECLARATION.  THIS PROCEDURE
HAS THE ADVANTAGE OF PREVENTING THE STATUTE OF LIMITATIONS FROM RUNNING
ON THE SHIPPER WHILE AWAITING COMMISSION DECISION.  ALSO, "IN
CIRCUMSTANCES SUCH AS DESCRIBED, IT IS APPARENT THAT PRECAUTIONS SHOULD
BE TAKEN TO PREVENT THE FILING OF FRIVOLOUS OR MOOT COMPLAINTS. 
WITHOUT ATTEMPTING AT THIS TIME TO DEVISE A PRECISE RULE, WE THINK IT
PERTINENT TO POINT OUT THAT, GENERALLY SPEAKING, ADVERSARY PROCEEDINGS
INVOLVING PAST UNREASONABLENESS, UNJUST DISCRIMINATION, OR UNDUE
PREJUDICE UNDER PART II SHOULD NOT BE BROUGHT BEFORE US PRIOR TO THE
INSTITUTION OF A SUIT IN COURT IN WHICH DAMAGES ARE SOUGHT PREDICATED
UPON THE UNLAWFULNESS ALLEGED IN THE COMPLAINT.  THE COMPLAINT SHOULD
SHOW THAT SUCH SUIT HAS BEEN BROUGHT WITHIN THE PERIOD ALLOWED BY THE
APPLICABLE STATUTE OF LIMITATIONS.  THERE MAY BE OTHER SITUATIONS IN
WHICH WE SHOULD EXERCISE THIS JURISDICTION.  IN THIS CONNECTION, IT MAY
BE NOTED THAT IT IS A RECOGNIZED PRACTICE TO HOLD IN ABEYANCE COURT
PROCEEDINGS PENDING THE DETERMINATION BY THE COMMISSION OF
ADMINISTRATIVE QUESTIONS."  BELL POTATO CHIP CO. V. ABERDEEN TRUCK
LINE, 43 M.C.C. 337, 343. 

FN14  NO DECISION OF THIS COURT HAS EVER EXPRESSLY OR IMPLIEDLY
OVERRULED THE DECISION IN THE STANDARD OIL CASE.  LEAST OF ALL CAN IT
BE SAID THAT ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125,
OVERRULED THE CASE, FOR THE OPINION WITH GREAT CARE STATED THAT THE
STANDARD OIL CASE WAS NOT OVERRULED IN ITS HOLDING THAT ORDERS
DISMISSING A CLAIM FOR REPARATIONS WERE NOT REVIEWABLE BECAUSE OF SEC.
9 OF THE INTERSTATE COMMERCE ACT.  SEE 307 U.S. AT P. 140, N. 23.  THE
COURT THERE DID ONLY WHAT THE COURT THE OTHER DAY DID IN UNITED STATES
V. JONES, 336 U.S. 641, 647-8, THAT IS, IT DECIDED THAT FOR REASONS
WHOLLY UNRELATED TO THE "NEGATIVE ORDER" DOCTRINE AN ORDER OF THE
COMMISSION WAS NOT REVIEWABLE.  IF ANYTHING, THE CONCLUSION IN THE
STANDARD OIL CASE WAS REINFORCED BY THE ROCHESTER DECISION IN THAT IT
WAS REAFFIRMED BY THE VERY DECISION THAT PUT THE "NEGATIVE ORDER"
DOCTRINE AND DECISIONS DEALING WITH IT UNDER THE STRICTEST SCRUTINY. 
THAT EXAMINATION REVEALED THAT ONLY ONE CASE OUT OF THE WHOLE SERIES OF
CASES EXAMINED WAS REALLY DETERMINED BY THE "NEGATIVE ORDER" DOCTRINE. 
THAT WAS THE ONLY CASE THE COURT OVERRULED.  AND EVEN MR. JUSTICE
BUTLER, WHO FILED A SEPARATE OPINION, DID NOT SAY THAT OTHER CASES WERE
BEING OVERRULED.  HE OBJECTED, ESSENTIALLY, TO THEIR REEXAMINATION.  HE
SAID:  "THE CASE PRESENTS NO DEBATABLE QUESTION AS TO THE JURISDICTION
OF THE DISTRICT COURT.  A STATEMENT OF THE FACTS ALLEGED CONCLUSIVELY
SHOWS THAT IN PURPOSE, TERMS AND EFFECT THE FINAL ORDER CONSTITUTES NOT
MERE DETERMINATION OR DECLARATION BUT AFFIRMATIVE COMMANDS.  THERE IS
NO OCCASION TO REVIEW EARLIER DECISIONS DEALING WITH AFFIRMATIVE AND
NEGATIVE ADMINISTRATIVE ORDERS AND OBVIOUSLY NONE TO OVERRULE ANY OF
THEM OR TO REPUDIATE OR IMPAIR THE DOCTRINE THEY ESTABLISH."  ROCHESTER
TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 146, 147-48.  THAT THE
ROCHESTER CASE DID NOT OVERRULE STANDARD OIL IS CONCLUSIVELY PROVED BY
THE FACT THAT THIS COURT RELIED ON THAT CASE LESS THAN FOUR YEARS AGO
TO AFFIRM A JUDGMENT DISMISSING A PETITION TO REVIEW AN ORDER
DISMISSING A CLAIM FOR REPARATION.  ASHLAND COAL & ICE CO. V. UNITED
STATES, 325 U.S. 840. 
..END :






















PROPPER V. CLARK, 337 U.S. 472 


NO. 390.  ARGUED MARCH 28-29, 1949.  - DECIDED JUNE 20, 1949.  - 169
F.2D 324, AFFIRMED. 


PURSUANT TO SEC. 5(B) OF THE TRADING WITH THE ENEMY ACT, AS AMENDED,
THE PRESIDENT PROMULGATED EXECUTIVE ORDER NO. 8389 PROHIBITING CERTAIN
TRANSACTIONS IN PROPERTY OF NATIONALS OF CERTAIN FOREIGN COUNTRIES
EXCEPT WHEN LICENSED BY THE SECRETARY OF THE TREASURY.  TWO DAYS BEFORE
THIS WAS MADE APPLICABLE TO AUSTRIA BY EXECUTIVE ORDER NO. 8785,
PETITIONER WAS DESIGNATED BY A NEW YORK COURT AS TEMPORARY RECEIVER OF
THE ASSETS OF AN AUSTRIAN NATIONAL (AKM).  THE ASSET WAS A DEBT OWED BY
THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS (ASCAP), AND
NO LICENSE PERMITTING ITS TRANSFER WAS ISSUED.  AFTER ISSUANCE OF
EXECUTIVE ORDER NO. 8785, PETITIONER WAS DESIGNATED PERMANENT
RECEIVER.  SUBSEQUENTLY, THE ALIEN PROPERTY CUSTODIAN ISSUED AN ORDER
VESTING IN HIMSELF TITLE TO THE CLAIM OF AKM AGAINST ASCAP.  HELD:  IN
A SUIT BY THE CUSTODIAN AGAINST PETITIONER AND ASCAP, JUDGMENTS WERE
PROPERLY ENTERED DECLARING THAT PETITIONER HAD NO RIGHT, TITLE OR
INTEREST IN THE CLAIM AND DIRECTING ASCAP TO PAY IT TO THE CUSTODIAN. 
PP. 474-493. 

1.  THE JOINT RESOLUTION OF MAY 7, 1940, AMENDING SEC. 5(B) OF THE
TRADING WITH THE ENEMY ACT, AND EXECUTIVE ORDER NO. 8389, ISSUED APRIL
10, 1940, PUT INTO EFFECT A VALID PLAN FOR CONTROL OF THE PROPERTY
COVERED BY THE EXECUTIVE ORDER THAT PROHIBITED ANY CHANGE OF TITLE TO
THE PROPERTY HERE INVOLVED BY REASON OF THE SUBSEQUENT APPOINTMENT OF
PETITIONER AS PERMANENT RECEIVER.  PP. 476-486. 

(A)  THE JOINT RESOLUTION OF MAY 7, 1940, RATIFIED EXECUTIVE ORDER NO.
8389, ISSUED APRIL 10, 1940, INCLUDING THE BROAD DEFINITION OF "BANKING
INSTITUTION" AS INCLUDING "ANY PERSON HOLDING CREDITS FOR OTHERS AS A
DIRECT OR INCIDENTAL PART OF HIS BUSINESS."  PP. 478-479. 

(B)  NOT BEING DEFINED, THE TERM "CREDIT," AS USED IN THE TRADING
WITH THE ENEMY ACT, THE EXECUTIVE ORDERS AND THE REGULATIONS
THEREUNDER, IS GIVEN ITS ORDINARY MEANING OF THE OBLIGATION DUE ON
ACCOUNTING BETWEEN PARTIES TO TRANSACTIONS.  P. 480. 

(C)  PETITIONER AND ASCAP ARE "BANKING INSTITUTIONS" WITHIN THE
MEANING OF THE DEFINITIONS OF THAT TERM IN THE EXECUTIVE ORDERS AND THE
PROHIBITION AGAINST "TRANSFERS OF CREDIT BETWEEN ANY BANKING
INSTITUTIONS."  PP. 480-482. 

(D)  A TRANSFER OF THE CREDIT HERE INVOLVED FROM A LIABILITY OWED BY
ASCAP TO AKM TO A LIABILITY OWED BY ASCAP TO PETITIONER WOULD VIOLATE
THE PROHIBITION AGAINST "TRANSFERS OF CREDIT."  P. 482. 

(E)  ALTHOUGH TITLE TO THE CLAIM IN QUESTION HAD NOT BEEN VESTED IN
THE CUSTODIAN WHEN PETITIONER WAS APPOINTED PERMANENT RECEIVER, THE
EXECUTIVE ORDERS PREVENTED TITLE FROM BEING TRANSFERRED TO PETITIONER,
EVEN BY JUDICIAL ACTION.  PP. 482-485. 

(F)  A DIFFERENT RESULT IS NOT REQUIRED BY THE ADMINISTRATIVE
INTERPRETATION OF THE EXECUTIVE ORDERS.  PP. 485-486. 

2.  UNDER SEC. 977-B OF THE NEW YORK CIVIL PRACTICE ACT, TITLE TO THE
CLAIM DID NOT PASS TO PETITIONER BY VIRTUE OF HIS APPOINTMENT AS
TEMPORARY RECEIVER BEFORE ISSUANCE OF EXECUTIVE ORDER NO. 8785.  PP.
486-492. 

(A)  ALTHOUGH THE STATE STATUTE IS SUSCEPTIBLE OF VARYING
INTERPRETATIONS AND THE POINT HAS NOT BEEN RULED UPON BY THE STATE
COURTS, THIS COURT ACCEPTS THE REASONABLE INTERPRETATION GIVEN TO IT BY
THE FEDERAL DISTRICT COURT AND COURT OF APPEALS, WHICH ARE SKILLED IN
THE LAWS OF NEW YORK.  PP. 486-489. 

(B)  THIS COURT REJECTS PETITIONER'S SUGGESTION THAT A DECISION IN
THE FEDERAL COURTS SHOULD BE DELAYED UNTIL THE COURTS OF NEW YORK HAVE
SETTLED THE ISSUE OF STATE LAW.  PP. 489-492. 

3.  THE FEDERAL COURTS WERE NOT PRECLUDED FROM ADJUDGING THE RIGHTS
OF THE RESPECTIVE PARTIES IN THIS CASE ON THE GROUND THAT THE PROPERTY
WAS IN THE HANDS OF THE STATE COURT BY VIRTUE OF A STATE RECEIVERSHIP. 
PP. 492-493. 

PROPPER, RECEIVER, V. CLARK, ATTORNEY GENERAL, AS SUCCESSOR TO THE
ALIEN PROPERTY CUSTODIAN, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUIT BY THE ALIEN PROPERTY CUSTODIAN UNDER SEC. 17 OF THE
TRADING WITH THE ENEMY ACT, A FEDERAL DISTRICT COURT ENTERED JUDGMENTS
DECLARING THAT A RECEIVER APPOINTED BY A STATE COURT HAD NO RIGHT,
TITLE OR INTEREST IN A DEBT OWED TO AN AUSTRIAN NATIONAL AND DIRECTING
THE DEBTOR TO PAY THE DEBT TO THE CUSTODIAN.  70 F.SUPP.  202.  THE
COURT OF APPEALS AFFIRMED.  169 F.2D 324.  THIS COURT GRANTED
CERTIORARI, LIMITED TO TWO ISSUES.  335 U.S. 902.  AFFIRMED, P. 493. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE ALIEN PROPERTY CUSTODIAN  FN1  ON APRIL 22, 1946, BEGAN THIS
ACTION UNDER SEC. 17 OF THE TRADING WITH THE ENEMY ACT IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK TO OBTAIN
THE PAYMENT, AND A DECLARATION OF TITLE IN HIM AS AGAINST THE
PETITIONER AS RECEIVER, OF CERTAIN ROYALTIES OWED BY THE AMERICAN
SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS (ASCAP) TO STAATLICH
GENEHMIGTE GESELLSCHAFT DER AUTOREN, KOMPONISTEN UND MUSIKVERLEGER
(AKM), AN AUSTRIAN ASSOCIATION, PURSUANT TO THE PROVISIONS OF VESTING
ORDER NO. 2097, OFFICE OF ALIEN PROPERTY CUSTODIAN, SEPTEMBER 4, 1943,
8 FED. REG. 16463, WHEREBY THE CUSTODIAN HAD VESTED IN HIMSELF TITLE TO
CERTAIN PROPERTY OF AKM, SPECIFICALLY CLAIMS FOR ROYALTIES UNDER
COPYRIGHTS FOR THE PERFORMANCE OF MUSICAL COMPOSITIONS.  BY CONTRACT
ASCAP HAD BEEN AUTHORIZED BY AKM TO LICENSE ON ROYALTY THE USE IN THIS
COUNTRY OF MUSICAL COPYRIGHTS BELONGING TO AKM.  ASCAP AND THE
PETITIONER, WHO IS THE STATE-APPOINTED RECEIVER OF THE ROYALTIES
INVOLVED, WERE MADE DEFENDANTS.  THE DISTRICT COURT, ON MOTION FOR
SUMMARY JUDGMENT OR JUDGMENT ON THE PLEADINGS, ENTERED A JUDGMENT
DECLARING THAT THE PETITIONER HAD NO RIGHT, TITLE OR INTEREST IN THE
CLAIM IN QUESTION, MARKHAM V. TAYLOR, 70 F.SUPP.  202, AND LATER, A
SECOND JUDGMENT DIRECTING ASCAP TO PAY THE DEBT TO THE CUSTODIAN.  THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, ON APPEAL BY THE
PETITIONER,  FN2  AFFIRMED.  CLARK V. PROPPER, 169 F.2D 324. 

THE PERTINENT FACTS UNDERLYING THIS CONTROVERSY ARE AS FOLLOWS:  ON
JUNE 12, 1941, ON AN EX PARTE APPLICATION BY A CREDITOR OF AKM, THE NEW
YORK SUPREME COURT APPOINTED PETITIONER TEMPORARY RECEIVER OF THAT
ASSOCIATION, PURSUANT TO SEC. 977-B OF THE NEW YORK CIVIL PRACTICE ACT,
WHICH PROVIDES FOR THE LIQUIDATION OF THE LOCAL ASSETS OF A FOREIGN
CORPORATION WHEN IT HAS CEASED TO DO BUSINESS FOR ONE REASON OR ANOTHER
NOT HERE IMPORTANT.  PROCEEDINGS UNDER THIS ACT ARE TO ENABLE CLAIMANTS
AGAINST THE FOREIGN CORPORATION TO SECURE PAYMENT OF THEIR CLAIMS BY AN
EQUITABLE APPORTIONMENT OF THE AVAILABLE ASSETS.  THE ORDER OF
APPOINTMENT DIRECTED HIM "TO TAKE, RECEIVE AND REDUCE TO HIS POSSESSION
ANY AND ALL ASSETS  ...  TANGIBLE AND INTANGIBLE, WITHIN THE STATE OF
NEW YORK, OF THE DEFENDANT (AKM), AND HOLD THE SAME UNTIL THE FURTHER
ORDER OF THIS COURT."  ON JUNE 14, 1941, PURSUANT TO SEC. 5(B) OF THE
TRADING WITH THE ENEMY ACT OF 1917, 40 STAT. 411, 415, AS AMENDED,  FN3
THE PRESIDENT PROMULGATED EXECUTIVE ORDER NO. 8785,  FN4  A SO-CALLED
"FREEZING ORDER," WHICH PROHIBITED CERTAIN TRANSACTIONS INVOLVING
AUSTRIAN PROPERTY EXCEPT AS THEY WERE SPECIFICALLY LICENSED BY THE
SECRETARY OF THE TREASURY.  ON JULY 29, 1941, PETITIONER, AS RECEIVER,
BEGAN AN ACTION IN THE COURTS OF NEW YORK AGAINST ASCAP TO RECOVER THE
ROYALTIES WHICH IT OWED AKM.  FN5  ITS DISPOSITION IS AWAITING THE
OUTCOME OF THIS CASE.  ON SEPTEMBER 29, 1941, PETITIONER, UPON THE
DEFAULT OF AKM, WAS APPOINTED PERMANENT RECEIVER OF THAT ASSOCIATION'S
ASSETS.  THEREAFTER FOLLOWED THE VESTING ORDER, SEPTEMBER 4, 1943, AND
THIS SUIT, APRIL 22, 1946. 

UPON THE LIMITED GRANT OF THE PETITION FOR CERTIORARI, 335 U.S. 902,
THE ISSUES ARGUED BEFORE THIS COURT AND NOW TO BE DECIDED ARE WHETHER
THE APPOINTMENT OF PETITIONER AS TEMPORARY RECEIVER ON JUNE 12, 1941,
OR HIS APPOINTMENT AS PERMANENT RECEIVER ON SEPTEMBER 29, 1941, BY
RELATION BACK, PASSED TITLE TO HIM OF THE CLAIM FOR ROYALTIES AS OF
JUNE 12, 1941.  FURTHERMORE, SINCE, AS WILL SUBSEQUENTLY APPEAR, WE
CONCLUDE THESE ISSUES AGAINST PETITIONER, WE MUST CONSIDER WHETHER THE
FREEZING ORDER BARRED A SUBSEQUENT UNLICENSED JUDICIAL TRANSFER BY THE
ORDER APPOINTING THE PETITIONER PERMANENT RECEIVER.  FN6 

FIRST.  THE APPOINTMENT AS PERMANENT RECEIVER ON SEPTEMBER 29, 1941,
CONCEDEDLY WOULD HAVE VESTED IN PETITIONER AS PERMANENT RECEIVER ALL
RIGHT, TITLE AND INTEREST OF AKM IN ITS CLAIM AGAINST ASCAP IF THE
FREEZING ORDER OF JUNE 14, 1941, HAD NOT INTERVENED AFTER PETITIONER'S
APPOINTMENT AS TEMPORARY RECEIVER ON JUNE 12, 1941.  ACCEPTING THAT
POSITION, THE QUESTION OF WHETHER THE APPOINTMENT AS PERMANENT RECEIVER
RELATED BACK TO THE DATE OF THE TEMPORARY RECEIVERSHIP, SO AS TO PLACE
TITLE TO THE CLAIM IN THE PERMANENT RECEIVER AS OF JUNE 12, 1941, AND
THE QUESTION AS TO WHETHER THE APPOINTMENT AS PERMANENT RECEIVER ITSELF
VESTED TITLE IN THE PETITIONER, NOTWITHSTANDING THE PRIOR FREEZING
ORDER, DEPEND ALIKE UPON A DETERMINATION AS TO WHETHER THE FREEZING
ORDER MADE INVALID ANY SUBSEQUENT TRANSFER OF TITLE BY JUDICIAL
ACTION. 

THE VESTING ORDER HERE IN QUESTION, VESTING ORDER NO. 2097, 8 FED.
REG. 16463, WAS EXECUTED ON SEPTEMBER 4, 1943, A DATE SUBSEQUENT TO THE
APPOINTMENT OF PETITIONER AS PERMANENT RECEIVER.  SO FAR AS THE PARTIES
TO THIS LITIGATION ARE CONCERNED, BY ITS SPECIFIC TERMS IT VESTED IN
THE CUSTODIAN TITLE TO THE PROPERTY OF AKM ONLY.  FN7  NOTHING
PRESENTED IN THIS CASE CALLS OUR ATTENTION TO ANY EFFORT MADE BY THE
CUSTODIAN TO VEST IN HIMSELF ANY TITLE TO THE CLAIM THAT MIGHT BE IN
THE PERMANENT RECEIVER FOR THE BENEFIT OF CREDITORS AND ULTIMATELY FOR
AKM OR THOSE ENTITLED TO ITS ASSETS ON DISTRIBUTION,  FN8  NOR DO WE
ADJUDICATE HIS RIGHT TO DO SO.  THE ORDER, SO FAR AS PERTINENT, VESTED
IN THE CUSTODIAN "ALL  ...  CLAIM (OF AKM TO) ALL RIGHT TO RECEIVE
MONIES ...  BY WAY OF ROYALTY, SHARE OF PROFITS OR OTHER EMOLUMENT,"
TOGETHER WITH "ALL CAUSES OF ACTION ...  WITH RESPECT TO" THE AFORESAID
COPYRIGHTS.  THIS CLAIM WAS A DEBT OF ASCAP TO AKM, PROPERTY OF AKM, AS
DEFINED IN THE REGULATIONS OF APRIL 10, 1940, 5 FED. REG. 1401(C), AND
JUNE 14, 1941, 6 FED. REG. 2905.  THE LATTER CITATION REFERS TO THE
REGULATION DEFINING PROPERTY, UNDER THE TRADING WITH THE ENEMY ACT,
EFFECTIVE AT THE TIME OF THE VESTING ORDER.  FN9 

PRIOR TO PETITIONER'S APPOINTMENT AS PERMANENT RECEIVER AND THE LATER
VESTING ORDER, THE PRESIDENT, ON JUNE 14, 1941, HAD PRESCRIBED BY
EXECUTIVE ORDER NO. 8785, 6 FED. REG. 2897, THAT CERTAIN TRANSACTIONS
BY OR ON BEHALF OF AUSTRIAN ASSOCIATIONS SUCH AS AKM WERE PROHIBITED
UNLESS LICENSED.  NO LICENSE FOR THE JUDICIAL ORDER APPOINTING
PETITIONER AS PERMANENT RECEIVER WAS ASKED FOR OR OBTAINED. 

ORDER NO. 8785 WAS ISSUED PURSUANT TO THE AUTHORITY GRANTED THE
PRESIDENT BY SEC. 5(B) OF THE ACT OF OCTOBER 6, 1917, AS AMENDED,
PARTICULARLY BY THE JOINT RESOLUTION OF MAY 7, 1940.  FN10 THE ORDER
FORBADE, SEC. 1A, "ALL TRANSFERS OF CREDIT BETWEEN ANY BANKING
INSTITUTIONS WITHIN THE UNITED STATES; ...  "  AUTHORITY DURING WAR OR
ANY OTHER PERIOD OF NATIONAL EMERGENCY TO PROHIBIT SUCH TRANSFERS WAS
GIVEN THE PRESIDENT BY THE JOINT RESOLUTION.  ORDER NO. 8785 DECLARED
"THE EXISTENCE OF A PERIOD OF UNLIMITED NATIONAL EMERGENCY." 

THE SAME RESOLUTION AUTHORIZED THE PRESIDENT TO ISSUE RULES AND
REGULATIONS AND SPECIFICALLY TO DEFINE "BANKING INSTITUTIONS."  THE
PRESIDENT HAD ON APRIL 10, 1940, ISSUED A SIMILAR ORDER PROHIBITING
SIMILAR TRANSFERS APPLICABLE TO NATIONALS OF NORWAY AND DENMARK TO
GUARD AGAINST SUCH TRANSFERS BROUGHT ABOUT BY THE GERMAN INVASION OF
THOSE COUNTRIES.  EXECUTIVE ORDER NO. 8389, 5 FED. REG. 1400.  IT
CONTAINED TO ALL INTENTS AND PURPOSES THE SAME DEFINITION OF "BANKING
INSTITUTIONS."  SEE SEC. 11 C THEREOF.  THE ORDER AND REGULATIONS
THEREUNDER, AND THEREFORE THE DEFINITION, WERE APPROVED BY THE JOINT
RESOLUTION N11.  THE DEFINITION APPLICABLE TO TRANSACTIONS OF THIS
AUSTRIAN NATIONAL, AKM, UNDER THE FREEZING ORDER OF JUNE 14, 1941, IS
SET OUT BELOW.  FN12 WE ACCEPT THIS DEFINITION AS AUTHORIZED BY THE
RESOLUTION. 

BY THE ORDER APPOINTING A PERMANENT RECEIVER, THE CLAIM OF AKM
AGAINST ASCAP WAS DIRECTED TO BE TRANSFERRED FROM AKM TO THE
PETITIONER.  FROM ASCAP'S POINT OF VIEW IT WAS A DEBT; FROM AKM'S A
CLAIM.  THE SHIFT OF OBLIGATION CONTEMPLATED BY THE ORDER FOR A
PERMANENT RECEIVER WAS A TRANSACTION THAT INVOLVED "PROPERTY IN WHICH"
THERE WAS AN "INTEREST OF ANY NATURE WHATSOEVER, DIRECT OR INDIRECT,"
IN ALIENS OF DESIGNATED COUNTRIES, INCLUDING AUSTRIA.  FN13  BUT THE
EXECUTIVE ORDER OF JUNE 14, 1941, DID NOT PROHIBIT ALL TRANSACTIONS
WITHOUT LICENSE INVOLVING AUSTRIAN-OWNED PROPERTY.  IT SPECIFIED THE
PROHIBITED TRANSACTIONS, HOWEVER, BY CATEGORIES SO ALL-INCLUSIVE AS TO
MAKE IT CLEAR THAT THE PURPOSE WAS TO REQUIRE TRANSACTIONS INVOLVING
PROPERTY OF NATIONALS OF DESIGNATED FOREIGN COUNTRIES TO BE CARRIED OUT
UNDER REGULATIONS OF THIS GOVERNMENT, EXCEPT CERTAIN TRANSACTIONS SUCH
AS ARE PROVIDED FOR IN GENERAL RULING NO. 12, APRIL 21, 1942, 7 FED.
REG. 2991.  THE EXECUTIVE ORDER FORBIDS TRANSFERS OF CREDIT.  AS
"CREDIT" IS NOT DEFINED BY THE ORDER OR REGULATION, WE, IN CONSIDERING
CREDITS AS PROPERTY SUBJECT TO VESTING UNDER THE TRADING WITH THE ENEMY
ACT, GIVE IT ITS ORDINARY MEANING OF THE OBLIGATION DUE ON ACCOUNTING
BETWEEN PARTIES TO TRANSACTIONS.  THIS CREDIT, OWED BY ASCAP TO AKM,
WAS IN EFFECT DIRECTED TO BE TRANSFERRED BY THE PERMANENT RECEIVER
ORDER FROM AKM TO THE PETITIONER AS RECEIVER.  THERE IS, WE THINK, NO
DOUBT THAT A VOLUNTARY TRANSFER BY A BANK OF A CREDIT IN THE
TRANSFERRING BANK FROM THE ACCOUNT OF A KNOWN AUSTRIAN TO THE ACCOUNT
OF ANOTHER BANKING INSTITUTION WOULD VIOLATE EXECUTIVE ORDER NO. 8785
AS A TRANSFER OF CREDIT BETWEEN BANKING INSTITUTIONS. 

IT REMAINS, THEN, TO DETERMINE WHETHER ASCAP AND PETITIONER ARE
BANKING INSTITUTIONS OF SUCH A CHARACTER AS TO BE SUBJECT TO THE
PROHIBITION OF EXECUTIVE ORDER NO. 8785, SEC. 1 A AGAINST "TRANSFERS OF
CREDIT BETWEEN ANY BANKING INSTITUTIONS."  A READING OF THE PRESIDENT'S
DEFINITION, NOTE 12 SUPRA, SHOWS THAT THEY DO FALL WITHIN THE WORDS
"ANY PERSON HOLDING CREDITS FOR OTHERS AS A DIRECT OR INCIDENTAL PART
OF HIS BUSINESS  ...  "  IT IS TRUE THAT TO MAKE ASCAP OR THE
PETITIONER A BANKING INSTITUTION BY DEFINITION IS A DEPARTURE FROM THE
ORDINARY CONCEPTION OF THE MEANING OF "BANKING INSTITUTION." 
PETITIONER SAYS TO SO CONSTRUE THE DEFINITION IS "UTTER FANTASY."  THE
DEFINITION, HOWEVER, AS WE HAVE POINTED OUT, HAS HAD CONGRESSIONAL
RATIFICATION.  FURTHERMORE, THE OBVIOUS INTENTION OF CONGRESS TO ALLOW
FLEXIBILITY IN THE TERM "BANKING INSTITUTION" BY LEAVING ITS DEFINITION
TO THE PRESIDENT SHEDS LIGHT ON ITS PURPOSE.  THE PHRASE "BANKING
INSTITUTION" USED AND DEFINED IN THE BANK HOLIDAY PROCLAMATION OF MARCH
6, 1933, 48 STAT. 1689, 1690, WAS ADOPTED BY THE EMERGENCY BANKING
RELIEF ACT OF MARCH 9, 1933, 48 STAT. 1, WITH A DELEGATION TO THE
PRESIDENT OF THE POWER OF DEFINITION.  EVIDENTLY THE DELEGATION WAS TO
PERMIT HIM TO BRING ATYPICAL FORMS OF FINANCIAL INSTITUTIONS WITHIN THE
REACH OF THE EMERGENCY ACT.  THE ACT OF MARCH 9 WAS GRAFTED ON TO THE
TRADING WITH THE ENEMY ACT OF 1917 AND, WHEN THAT ACT WAS AGAIN
EXTENDED TO MEET THE FOREIGN ASSETS PROBLEM, THE PRESIDENT'S WIDE POWER
TO DEFINE "BANKING INSTITUTION" WAS A READY INSTRUMENT TO COPE WITH THE
MYRIAD CIRCUMSTANCES ARISING IN THE CONTROL OF SHIFTS OF FOREIGN
ASSETS.  THE POWER IN PEACE AND IN WAR MUST BE GIVEN GENEROUS SCOPE TO
ACCOMPLISH ITS PURPOSE.  THROUGH THE TRADING WITH THE ENEMY ACT, IN ITS
VARIOUS FORMS, THE NATION SOUGHT TO DEPRIVE ENEMIES, ACTUAL OR
POTENTIAL, OF THE OPPORTUNITY TO SECURE ADVANTAGES TO THEMSELVES OR TO
PERPETRATE WRONGS AGAINST THE UNITED STATES OR ITS CITIZENS THROUGH THE
USE OF ASSETS THAT HAPPENED TO BE IN THIS COUNTRY.  FN14  TO DO SO HAS
NECESSITATED SOME INCONVENIENCE TO OUR CITIZENS AND OTHERS WHO, AS
HERE, ARE NOT INVOLVED IN ANY ACTIONS ADVERSE TO THE NATION'S
INTEREST.  THAT FACT, HOWEVER, CANNOT LEAD US TO NARROW THE BROAD
COVERAGE OF THE EXECUTIVE ORDER.  OUR PRIOR DECISIONS HAVE MADE THAT
CLEAR.  FN15  ASCAP AND PETITIONER, THE RECEIVER, EACH HOLD CREDITS FOR
OTHERS AS AN "INCIDENTAL PART OF (THEIR) BUSINESS," AND ARE THEREFORE
"BANKING INSTITUTIONS."  ASCAP HELD A CREDIT FOR AKM AND, AFTER THE
PERMANENT RECEIVERSHIP ORDER, WOULD HOLD THAT CREDIT FOR THE RECEIVER,
WHO IN TURN WOULD HOLD IT FOR AKM'S CREDITORS AND AKM. 

WE HOLD THAT A TRANSFER OF THIS CREDIT FROM A LIABILITY OWED BY ASCAP
TO AKM, TO A LIABILITY OWED BY ASCAP TO THE RECEIVER, WOULD VIOLATE THE
PROHIBITION AGAINST TRANSFERS OF CREDIT. 

WE TURN NOW TO AN EXAMINATION OF THE EFFECT OF THE FEDERAL EXECUTIVE
ORDER NO. 8785 OF JUNE 14, 1941, THE SO-CALLED "FREEZING ORDER," ON THE
SUBSEQUENT STATE COURT ORDER OF SEPTEMBER 29, 1941, APPOINTING THE
PETITIONER PERMANENT RECEIVER.  THAT EXAMINATION IS TO BE MADE WITH
RECOGNITION OF THE FACT THAT, AT THE TIME OF THE STATE ORDER, TITLE TO
THE AKM CLAIM AGAINST ASCAP HAD NOT BEEN VESTED IN THE CUSTODIAN.  THAT
DEVELOPMENT DID NOT TAKE PLACE UNTIL THE VESTING ORDER OF SEPTEMBER 4,
1943.    IT IS PETITIONER'S CONTENTION THAT A MERE FREEZING ORDER DOES
NOT PROHIBIT A SUBSEQUENT JUDICIAL ORDER TRANSFERRING TITLE TO BLOCKED
ASSETS COVERED BY THE PREVIOUS FREEZING ORDER.  WE WILL DEAL
SUBSEQUENTLY IN THIS OPINION WITH THE QUESTION OF WHETHER THE TITLE TO
THE CLAIM PASSED TO THE TEMPORARY RECEIVER, UNDER NEW YORK LAW, ON HIS
APPOINTMENT.  AT THIS POINT, WE ASSUME THIS DID NOT HAPPEN AND EXAMINE
ONLY THE QUESTION OF THE EFFECT OF A FREEZING ORDER ON THE SUBSEQUENT
JUDICIAL ORDER.  PETITIONER'S ARGUMENT IS THAT SUCH A CONSTRUCTION
WOULD IMMOBILIZE FROZEN PROPERTY UNTIL IT SUITS THE CUSTODIAN'S
CONVENIENCE TO VEST, CONTRARY TO THE NEED FOR PROTECTION AGAINST
TRANSFERS OF FOREIGN FUNDS.  THESE NEEDS, PETITIONER SAYS, WILL BE
SERVED BY THE PROVISION AGAINST PAYMENTS TO CLAIMANTS FROM FROZEN FUNDS
WITHOUT A LICENSE.  E.O. 8785, SEC. 1B.  FN16  HE FURTHER ARGUES THAT
BY THE JOINT RESOLUTION CONGRESS DID NOT EMPOWER THE PRESIDENT TO
DEPRIVE NEW YORK OF ALL POWER TO DEAL WITH THE ASCAP DEBT IN A
PROCEEDING UNDER CIVIL PRACTICE ACT SEC. 977-B, COVERING ACTIONS OF
RECEIVERS TO LIQUIDATE LOCAL ASSETS OF DEFUNCT FOREIGN CORPORATIONS. 

IT IS TRUE THAT STATE LITIGATION BETWEEN LOCAL CLAIMANTS AND FOREIGN
OWNERS OR THOSE IN POSSESSION OF BLOCKED OR FROZEN ASSETS COULD PROCEED
TO A DETERMINATION OF RIGHTS BETWEEN THE CLAIMANT AND THE FOREIGN
NATIONAL WITHOUT THE BLOCKED PROPERTY PASSING INTO HANDS THAT MIGHT USE
IT TO THE DETRIMENT OF THE WELFARE OF THIS NATION, SO LONG AS PAYMENT
COULD NOT BE MADE WITHOUT A LICENSE.  NOTHING IN THE TRADING WITH THE
ENEMY ACT OR REGULATIONS SPECIFICALLY FORBIDS EO NOMINE LITIGATION IN
STATE COURTS.  THE PLAN FOR PROHIBITION OF UNLICENSED TRANSACTIONS BY
FOREIGN NATIONALS COMPREHENDS BLOCKING OF TRANSFERS OF CREDITS AND
VESTING OF LOCAL ASSETS OF SUCH NATIONALS UNDER THE TRADING WITH THE
ENEMY ACT AND REGULATIONS THEREUNDER.  IF TRANSACTIONS ARE BLOCKED,
VESTING MAY OR MAY NOT FOLLOW.  WHEN THE CUSTODIAN VESTS BLOCKED
PROPERTY, TITLE PASSES TO THE CUSTODIAN AND HIS AUTHORITY TO VEST AND
HOLD CANNOT BE QUESTIONED EXCEPT AS PROVIDED IN THE TRADING WITH THE
ENEMY ACT.  FN17  THE FREEZING ORDER OF JUNE 14, 1941, IMMOBILIZED THE
ASSETS COVERED BY ITS TERMS SO THAT TITLE TO THEM MIGHT NOT SHIFT FROM
PERSON TO PERSON, EXCEPT BY LICENSE, UNTIL THE GOVERNMENT COULD
DETERMINE WHETHER THOSE ASSETS WERE NEEDED FOR PROSECUTION OF THE
THREATENED WAR OR TO COMPENSATE OUR CITIZENS OR OURSELVES FOR THE
DAMAGES DONE BY THE GOVERNMENTS OF THE NATIONALS AFFECTED.  UNITED
STATES V. CHEMICAL FOUNDATION, 272 U.S. 1, 11; SILESIAN-AMERICAN CORP.
V. CLARK, 332 U.S. 469, 476. 

WE ASSUME THAT THE COURT OF APPEALS OF NEW YORK HELD IN SINGER V.
YOKOHAMA SPECIE BANK THAT TITLE TO BLOCKED ASSETS COULD PASS WITHOUT
LICENSE FROM A STATUTORY RECEIVER TO A CREDITOR.  FN18 AS THE TRADING
WITH THE ENEMY ACT IS FEDERAL LEGISLATION FOUNDED ON FEDERAL
CONSTITUTIONAL PROVISIONS, HOWEVER, THE UNITED STATES HAS AUTHORITY TO
MAKE ALL LAWS NECESSARY AND PROPER FOR CARRYING THE POWER INTO
EXECUTION.  THE POWER TO ENACT CARRIES WITH IT FINAL AUTHORITY TO
DECLARE THE MEANING OF THE LEGISLATION.  PRUDENCE CORP. V. GEIST, 316
U.S. 89, 95.  FEDERAL COURTS HAVE SO HELD AS TO THIS ISSUE IN THIS
CASE, 169 F.2D 324, 327, AND IN BERNSTEIN V. N.V. NEDERLANDSCHE
AMERIKAANSCHE ETC., 173 F.2D 71, 73.  THE TRADING WITH THE ENEMY ACT IS
NATIONAL IN RANGE.  THE EFFECT OF A FEDERAL FREEZING ORDER SHOULD BE
THE SAME ON SUBSEQUENT TRANSFERS OF TITLE IN ALL STATES.  STATE LAW
DETERMINES THE EFFECT OF THE APPOINTMENT OF A RECEIVER ON TITLE TO THE
PROPERTY ADMINISTERED, BUT FEDERAL LAW DETERMINES WHETHER THE EVENT OF
APPOINTMENT CAN FREE THE PROPERTY FROM THE PRIOR CONTROL.  CF. LYETH V.
HOEY, 305 U.S. 188, 191, ET SEQ. 

PETITIONER CONTENDS ALSO THAT THE ADMINISTRATIVE INTERPRETATION OF
THE EXECUTIVE ORDER OF JUNE 14, 1941, HAS BEEN TO PERMIT LITIGATION AS
TO RIGHTS IN THE FROZEN ASSETS.  THAT IS BORNE OUT BY GENERAL RULING
NO. 12 OF APRIL 21, 1942, 7 FED. REG. 2991, PROMULGATED AFTER
PETITIONER HAD BEGUN HIS SUIT AGAINST ASCAP AND REFERRING TO EXECUTIVE
ORDER NO. 8389, AS AMENDED JUNE 14, 1941.  THE APPLICABLE SECTION IS
SET OUT IN THE MARGIN.  FN19  IT IS TO BE OBSERVED, HOWEVER, THAT THE
PROVISO OF SEC. (D) LIMITS THE RIGHTS A LITIGANT MAY OBTAIN TO SUCH
RIGHT AS THE OWNER OF BLOCKED PROPERTY COULD CONFER BY VOLUNTARY ACT. 
GENERAL RULING NO. 12, AS IT CAME AFTER THE SUIT BY THE RECEIVER
AGAINST ASCAP WAS STARTED AND AFTER THE ORDER APPOINTING PETITIONER AS
PERMANENT RECEIVER, IS NOT TREATED BY US AS DECISIVE IN THIS CASE.  IT
IS USEFUL ONLY AS A STATEMENT OF THE ADMINISTRATIVE DETERMINATION AS TO
THE EFFECT OF LITIGATION WITHOUT A LICENSE. 

IT IS OUR CONCLUSION THAT THE JOINT RESOLUTION OF MAY 7, 1940, AND
THE EXECUTIVE ORDER OF APRIL 10, 1940, PUT INTO EFFECT A VALID PLAN FOR
CONTROL OF THE PROPERTY COVERED BY THE REGULATION THAT PROHIBITED ANY
CHANGE OF TITLE TO THAT PROPERTY BY REASON OF THE SUBSEQUENT
APPOINTMENT OF PETITIONER AS PERMANENT RECEIVER.  WE DO NOT NOW
UNDERTAKE TO SAY WHETHER EVERY DETERMINATION OF RIGHTS CONCERNING
BLOCKED PROPERTY IN UNLICENSED LITIGATION IS VOIDABLE.  WE BASE OUR
DETERMINATION ON THE PURPOSE OF CONGRESS TO PREVENT SHIFTS IN TITLE TO
BLOCKED ASSETS AND THE PROHIBITION OF THE EXECUTIVE ORDER AGAINST
TRANSFERS OF SUCH A CREDIT AS THIS.  THE LANGUAGE OF THE ORDER
PROHIBITS MORE THAN PAYMENT.  IT PROHIBITS TRANSFERS OF CREDIT.  WE DO
NOT THINK THE ADMINISTRATIVE RULINGS ARE TO THE CONTRARY. 

SECOND.  THE PETITIONER ADVANCES THE CONTENTION, HOWEVER, THAT TITLE
TO AKM'S CLAIM AGAINST ASCAP HAD PASSED TO HIM BY HIS APPOINTMENT AS
TEMPORARY RECEIVER ON JUNE 12, 1941, PRIOR TO THE FREEZING OR BLOCKING
ORDER OF JUNE 14, 1941.  THEREFORE, PETITIONER ARGUES, AKM HAD NOTHING
THAT COULD BE FROZEN BY THE IMMOBILIZATION ORDER OR TAKEN BY THE
VESTING ORDER. 

THE PRECISE ISSUE OF STATE LAW INVOLVED, I.E., WHETHER THE TEMPORARY
RECEIVER UNDER SEC. 977-B OF THE NEW YORK CIVIL PRACTICE ACT IS VESTED
WITH TITLE BY VIRTUE OF HIS APPOINTMENT, IS ONE WHICH HAS NOT BEEN
DECIDED BY THE NEW YORK COURTS.  BOTH THE DISTRICT COURT AND THE COURT
OF APPEALS FACED THIS QUESTION AND ANSWERED IT IN THE NEGATIVE.  IN
DEALING WITH ISSUES OF STATE LAW THAT ENTER INTO JUDGMENTS OF FEDERAL
COURTS, WE ARE HESITANT TO OVERRULE DECISIONS BY FEDERAL COURTS SKILLED
IN THE LAW OF PARTICULAR STATES UNLESS THEIR CONCLUSIONS ARE SHOWN TO
BE UNREASONABLE.  ESTATE OF SPIEGEL V. COMMISSIONER, 335 U.S. 701, 707
708; HELVERING V. STUART, 317 U.S. 154; MACGREGOR V. STATE MUTUAL CO.,
315 U.S. 280.  WE SHALL EXAMINE THE PROBLEM FROM THAT POINT OF VIEW. 

HAVING NO STATE CASE ON THE PRECISE STATUTE BEFORE IT, THE COURT OF
APPEALS TURNED TO CASES DEALING WITH TEMPORARY RECEIVERSHIPS IN EQUITY
PROCEEDINGS AND UNDER ANALOGOUS STATUTES.  THESE CASES SEEM TO HOLD
THAT TEMPORARY RECEIVERS OF NEITHER THE EQUITY  FN20  NOR STATUTORY
FN21 CLASS OBTAIN TITLE, BUT, ON THE CONTRARY, MERELY A RIGHT TO
POSSESSION.  THE COURTS BELOW FOUND NOTHING IN SEC. 977-B WHICH
EVIDENCED AN INTENT THAT THE RESULT UNDER THAT SECTION SHOULD BE
OTHERWISE.  ADMITTEDLY THERE IS NO EXPRESS DECLARATION OF SUCH AN
INTENT. 

THE STATUTORY LANGUAGE IS EASILY SUSCEPTIBLE OF VARYING
INTERPRETATIONS.  SEE SUBSECTIONS 4, 10, 11, 12 AND 19.  THESE SECTIONS
ARE NOT CLEAR AS TO THE TITLE TAKEN BY THE TEMPORARY RECEIVER OR THE
AUTHORITY GRANTED TO HIM FOR THE HOLDING OR HANDLING OF CLAIMS AGAINST
DEBTORS.  THE COURT OF APPEALS CONCLUDED, HOWEVER, THAT WHERE IN
SUBSECTION 12 THE STATUTE SAID THAT "ANY RECEIVER APPOINTED  ...  SHALL
HAVE ALL THE POWERS AND DUTIES  ...  POSSESSED BY AND CONFERRED UPON
RECEIVERS AND TRUSTEES BY THE LAWS OF THE STATE OF NEW YORK," THE
MEANING WAS "THAT A TEMPORARY RECEIVER UNDER THIS PROVISION TAKES THE
USUAL POWERS OF OTHER TEMPORARY RECEIVERS IN NEW YORK."  169 F.2D 324,
327.  IT WAS POINTED OUT THAT OTHERWISE THE SPECIFIC AND RESTRICTED
GRANT OF POWERS TO A TEMPORARY RECEIVER BY SUBSECTION 4 WOULD BE
PURPOSELESS. 

PETITIONER CONTENDS HERE FOR THE FIRST TIME THAT A VESTING OF TITLE
IN THE TEMPORARY RECEIVER IS AN ESSENTIAL PREREQUISITE TO THE EXERCISE
OF JURISDICTION IN REM OVER THE ASSETS WITHIN THE STATE OF A
NONRESIDENT ASSOCIATION WHICH IS SERVED BY PUBLICATION.  THE CONTENTION
IS THAT AN AFFIRMANCE OF THE COURT BELOW ON THE ISSUE OF STATE LAW WILL
RENDER PROCEEDINGS UNDER SEC. 977-B SUBJECT TO AN ATTACK ON
CONSTITUTIONAL GROUNDS UNDER THE DOCTRINE OF PENNOYER V. NEFF, 95 U.S.
714.  IN OUR OPINION THE ARGUMENT IS WITHOUT MERIT.  PENNOYER V. NEFF
MERELY HOLDS THAT A PERSONAL JUDGMENT CANNOT BE OBTAINED AGAINST A
NONRESIDENT ON SERVICE BY PUBLICATION.  IT RECOGNIZES AT P. 733 THAT
FOR AN IN REM ACTION IT IS SUFFICIENT THAT THE PROPERTY BE WITHIN THE
STATE, SUBJECT TO THE CONTROL OF THE COURT, AND THAT THERE BE SOME FORM
OF SERVICE WHICH IS REASONABLY CALCULATED TO GIVE NOTICE TO PARTIES
WHOSE INTERESTS MAY BE AFFECTED BY THE JUDGMENT.  CF. MILLIKEN V.
MEYER, 311 U.S. 457, 463.  THE FIRST REQUIREMENT CAN BE MET IN OTHER
WAYS THAN SEIZURE OF TITLE, E.G., BY AN INJUNCTION AGAINST TRANSFER OF
THE PROPERTY, PENNINGTON V. FOURTH NATIONAL BANK, 243 U.S. 269; BY AN
ATTACHMENT, HERBERT V. BICKNELL, 233 U.S. 70; OR BY PERSONAL SERVICE ON
THE PARTY HOLDING THE PROPERTY WITHIN THE STATE, SECURITY SAVINGS BANK
V. CALIFORNIA, 263 U.S. 282.  WE HAVE NO DOUBT THAT WHERE PROPERTY IS
IN A STATE AND COMES UNDER THE CONTROL OF A COURT, AS HERE BY
APPOINTMENT OF THE TEMPORARY RECEIVER, IT IS FAIR TO PERMIT SUBSTITUTED
SERVICE.  ANDERSON NAT. BANK V. LUCKETT, 321 U.S. 233, 240, ET SEQ.;
SEE MCDONALD V. MABEE, 243 U.S. 90. 

SINCE THE DETERMINATION OF THE STATE LAW ISSUE CONCERNING THE TITLE
OF THE TEMPORARY RECEIVER BY THE COURTS BELOW IS NOT UNREASONABLE, WE
ACCEPT IT AS CORRECT FOR THE PURPOSES OF THIS CASE. 

A SUGGESTION APPEARS IN PETITIONER'S BRIEFS, BUT NOT IN THE QUESTIONS
PRESENTED BY THE PETITION FOR CERTIORARI, THAT THE JUDGMENTS BELOW
SHOULD BE VACATED AND THE CASE REMANDED TO THE DISTRICT COURT TO BE
HELD UNTIL THE PARTIES CAN SECURE FROM THE COURTS OF NEW YORK A
DECISION AS TO WHETHER THE TEMPORARY RECEIVER TOOK TITLE TO THE CLAIM
AGAINST ASCAP.  WAIVING THE FAILURE TO RAISE THE ISSUE BY THE PETITION
FOR CERTIORARI,  FN22 WE CONSIDER THE CONTENTION IN DEFERENCE TO THE
EARNESTNESS WITH WHICH THE POINT IS PRESSED IN THE DISSENT.  FN23  IF
THE STATE LAW IS THAT TITLE PASSED TO THE TEMPORARY RECEIVER ON HIS
APPOINTMENT PRIOR TO THE FREEZING ORDER, THE CUSTODIAN, BY THE
ASSUMPTION OF THE OPINION, WOULD OBTAIN NOTHING BY HIS ORDER VESTING
AKM PROPERTY.  SUCH A RULING WOULD MAKE UNNECESSARY CONSIDERATION OF
ANY OTHER ISSUE. 

THIS SUGGESTED PROCEDURE HAS BEEN FOLLOWED IN ORDER TO AVOID A
DECISION ON A FEDERAL CONSTITUTIONAL ISSUE - SPECTOR MOTOR CO. V.
MCLAUGHLIN, 323 U.S. 101; CHICAGO V. FIELDCREST DAIRIES, 316 U.S. 168;
RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496; BUT CF. PUBLIC UTILITIES
COMM'N V. UNITED FUEL GAS CO., 317 U.S. 456, 462-63 - AND WHERE THE
ONLY ISSUE IN THE CASE WAS ONE OF STATE LAW, ALTHOUGH FEDERAL
JURISDICTION WAS BASED ON THE BANKRUPTCY ACT.  THOMPSON V. MAGNOLIA
PETROLEUM CO., 309 U.S. 478.  WE HAVE REFUSED IN A DIVERSITY OF
CITIZENSHIP CASE TO ALLOW THE DIFFICULTY OF AN ISSUE OF STATE LAW TO
DETER US FROM EXERCISING OUR JURISDICTION WHEN FEDERAL DETERMINATION
WAS SUBJECT TO EQUITABLE DISCRETION AND THE STATE ISSUE WAS THE ONLY
ONE IN THE CASE.  MEREDITH V. WINTER HAVEN, 320 U.S. 228.  FN24  TO
REFRAIN FROM DECIDING IT, WE THERE SAID, WOULD BE TO ENERVATE DIVERSITY
JURISDICTION. 

WHERE A CASE INVOLVES A NONCONSTITUTIONAL FEDERAL ISSUE, HOWEVER, THE
NECESSITY FOR DECIDING WHICH DEPENDS UPON THE DECISION ON AN UNDERLYING
ISSUE OF STATE LAW, THE PRACTICE IN FEDERAL COURTS HAS BEEN, WHEN
NECESSARY, TO DECIDE BOTH ISSUES.  THIS WAS THE COURSE WE FOLLOWED IN
MARKHAM V. ALLEN, 326 U.S. 490, 495-6, A CASE ARISING UNDER THE TRADING
WITH THE ENEMY ACT, WHERE AN ISSUE WAS THE CONSTRUCTION OF A STATE
STATUTE.  THE STATE LAW QUESTION IN ESTATE OF SPIEGEL V. COMMISSIONER,
SUPRA, WAS CONCEDEDLY DIFFICULT AND UNSETTLED; ITS DECISION ADMITTEDLY
CONTROLLED THE EXISTENCE OF A FEDERAL QUESTION, SINCE A FINDING THAT
THERE WAS NO POSSIBILITY OF REVERTER UNDER ILLINOIS LAW WOULD HAVE
FINALLY DETERMINED THE ISSUE ON WHICH THE CASE WAS DECIDED.  AND YET,
ALTHOUGH A METHOD MAY HAVE EXISTED FOR OBTAINING AN ADJUDICATION ON THE
ISSUE FROM THE ILLINOIS COURTS, 335 U.S. 632, 673-4, THIS COURT
FOLLOWED THE PROCEDURE WHICH WE ADOPT HERE OF DEPENDING UPON THE
DETERMINATION OF STATE LAW BY THE COURT OF APPEALS.  335 U.S. 701, 707
8.  IN SO DOING, IT FOLLOWED THE DECISION IN HELVERING V. STUART, 317
U.S. 154, 161, ET SEQ. ERIE R. CO. V. TOMPKINS, 304 U.S. 64, A COMMON
LAW CASE, IS ITSELF A PRECEDENT AGAINST ANY GENERAL RULING THAT CASES
PROPERLY IN THE FEDERAL COURTS THAT DEPEND UPON STATE LAW SHOULD HAVE
THAT ISSUE SUBMITTED TO STATE COURTS FOR DECISION.  SEE THE LATER
DECISION IN THE SAME CASE, TOMPKINS V. ERIE R. CO., 98 F.2D 49. 

THE CASES MENTIONED ABOVE WHERE THIS COURT REQUIRED SUBMISSION OF
SINGLE ISSUES, EXCISED FROM THE CONTROVERSY, TO STATE COURTS WERE CASES
IN EQUITY.  THE DISCRETION OF EQUITY AS TO THE TERMS UPON WHICH IT
WOULD GRANT ITS REMEDIES, IN THE LIGHT OF OUR RULE TO AVOID AN
INTERPRETATION OF THE FEDERAL CONSTITUTION UNLESS NECESSARY, WAS RELIED
UPON TO JUSTIFY A DEPARTURE FROM NORMAL PROCEDURE.  IN THE MAGNOLIA
CASE, WE DIRECTED THAT THE TRUSTEE FILE PLENARY PROCEEDINGS TO
DETERMINE TITLE IN A STATE COURT LITIGATION NECESSARILY COMPLETE IN
ITSELF.  THE COMPLAINT HERE IN A SINGLE COUNT SEEKS RECOVERY OF THE
DEBT FROM ASCAP AND DETERMINATION OF THE CUSTODIAN'S TITLE TO THE CLAIM
VIS-A-VIS THE RECEIVER.  ASSUMING THAT QUIETING TITLE TO A CHATTEL IS
AN EQUITABLE PROCEEDING AND THAT THE DISTRICT COURT CAN, BY CUTTING OUT
THE TITLE ISSUE AND BY REFUSING TO PROCEED IN THE CONTROVERSY UNLESS
OBEYED, COMPEL THE CUSTODIAN BY WHATEVER PROCEEDINGS NEW YORK MAY
PROVIDE TO LITIGATE ONLY THE NARROW ISSUE OF TITLE IN THE TEMPORARY
RECEIVER, THERE WOULD REMAIN THE PROBLEM OF CONTROL OF THE RECEIVER, BY
THREATS OF CONTEMPT ACTION, TO KEEP HIM FROM RAISING IN SUCH
PROCEEDINGS FEDERAL ISSUES SUCH AS THE RIGHT TO SECURE TITLE AS
PERMANENT RECEIVER THROUGH STATE JUDICIAL ACTION AFTER THE FREEZING OR
IMMOBILIZATION ORDER.  THIS FEDERAL ISSUE WE DECIDED ABOVE. 
FURTHERMORE, AS THE STATE COURT COULD REASONABLY REQUIRE COMPLETE
ADJUDICATION OF THE CONTROVERSY, THE DISTRICT COURT WOULD PERHAPS BE
COMPELLED TO STAY PROCEEDINGS IN THE STATE COURT TO PROTECT ITS OWN
JURISDICTION.  28 U.S.C. SEC. 2283.  OTHERWISE, IN SENDING A FRAGMENT
OF THE LITIGATION TO A STATE COURT, THE FEDERAL COURT MIGHT FIND ITSELF
BLOCKED BY RES JUDICATA, WITH THE RESULT THAT THE ENTIRE FEDERAL
CONTROVERSY WOULD BE OUSTED FROM THE FEDERAL COURTS, WHERE IT WAS
PLACED BY CONGRESS.  SEE NOTE 17, SUPRA. 

THE SUBMISSION OF SPECIAL ISSUES IS A USEFUL DEVICE IN JUDICIAL
ADMINISTRATION IN SUCH CIRCUMSTANCES AS EXISTED IN THE MAGNOLIA,
SPECTOR, FIELDCREST AND PULLMAN CASES, SUPRA, BUT IN THE ABSENCE OF
SPECIAL CIRCUMSTANCES, 320 U.S. AT 236, 237, IT IS NOT TO BE USED TO
IMPEDE THE NORMAL COURSE OF ACTION WHERE FEDERAL COURTS HAVE BEEN
GRANTED JURISDICTION OF THE CONTROVERSY. 

WE REJECT THE SUGGESTION THAT A DECISION IN THIS CASE IN THE FEDERAL
COURTS SHOULD BE DELAYED UNTIL THE COURTS OF NEW YORK HAVE SETTLED THE
ISSUE OF STATE LAW. 

THIRD.  THE PETITIONER MAKES THE FURTHER POINT THAT THE JUDGMENT
BELOW DETERMINING THAT HE HAD NO RIGHT, TITLE OR INTEREST TO THE CLAIM
OF AKM AGAINST ASCAP IS BEYOND THE COMPETENCE OF THE FEDERAL DISTRICT
COURT BECAUSE THAT PROPERTY WAS IN THE HANDS OF THE STATE COURT BY
VIRTUE OF THE RECEIVERSHIP.  EVEN IF TITLE DID NOT PASS, HE ARGUES, HE,
AND THROUGH HIM THE STATE COURT, HAD POSSESSION OF THE CLAIM BY VIRTUE
OF HIS APPOINTMENT AS TEMPORARY RECEIVER BEFORE THE PROMULGATION OF THE
FREEZING ORDER.  RELIANCE IS PLACED ON THE RULINGS OF CASES LIKE KLINE
V. BURKE CONSTRUCTION CO., 260 U.S. 226, 229, 231; PRINCESS LIDA V.
THOMPSON, 305 U.S. 456, 466; AND FARMERS' LOAN CO. V. LAKE ST. R. CO.,
177 U.S. 51, 61.  THE RULE DECLARED BY THESE CASES IS THAT WHEN ONE
COURT HAS TAKEN POSSESSION AND CONTROL OF A RES, A SECOND COURT IS
DISABLED FROM EXERCISING A POWER OVER THAT RES.  THE CIRCUMSTANCES OF
THIS CONTROVERSY DO NOT PRESENT SUCH AN INTERFERENCE WITH STATE CONTROL
OF A RES.  WE ARE DEALING WITH A SITUATION MORE CLOSELY RESEMBLING
DETERMINATIONS OF RIGHTS TO PARTICIPATE IN RES IN THE HANDS OF STATE
COURTS.  FN25  WHAT THE STATE COURT HAD, AT MOST, WAS A CLAIM AGAINST A
DEBTOR, ASCAP.  THE JUDGMENT ENABLED THE CUSTODIAN TO COLLECT THE DEBT
THAT ASCAP OWED AKM.  ALTHOUGH THIS JUDGMENT DETERMINED TITLE TO AKM'S
CLAIM AGAINST ASCAP WHEN THE ADVERSE CLAIMANT WAS A STATE RECEIVER,
THOSE FACTS DID NOT PREVENT THE FEDERAL COURT FROM GIVING A JUDICIAL
DECLARATION OF THE RIGHT TO THE CLAIM.  THE SCHEME OF THE TRADING WITH
THE ENEMY ACT CONTEMPLATES THAT FEDERAL COURTS MAY PROVIDE SUCH
DETERMINATIONS.  SEC. 17; CF. MARKHAM V. ALLEN, 326 U.S. 490, 495.  THE
CONGRESSIONAL PURPOSE TO PUT CONTROL OF FOREIGN ASSETS IN THE HANDS OF
THE PRESIDENT THROUGH THE CUSTODIAN, SO THAT THERE MIGHT BE A UNIFIED
NATIONAL POLICY IN THE ADMINISTRATION OF THE ACT, ARGUES STRONGLY FOR
FEDERAL DETERMINATION OF ISSUES OF RIGHTS IN THE BLOCKED ASSETS. 
COMITY DOES NOT REQUIRE ABNEGATION TO THE EXTENT THAT A FEDERAL COURT
CANNOT ADJUDICATE RIGHTS TO THE CLAIM INVOLVED.  AFFIRMED. 

FN1  TOM C. CLARK, ATTORNEY GENERAL, WAS DULY SUBSTITUTED AS
SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN. 

FN2  ASCAP, HAVING STIPULATED TO THE ENTRY OF A JUDGMENT AGAINST IT,
DID NOT APPEAL.  IT FILED A MOTION HERE TO BE MADE A PARTY.  IT WAS
PERMITTED TO ARGUE AND THERE IS NOW NO OCCASION TO GRANT THE MOTION. 
IT IS DENIED. 

FN3 BY THE JOINT RESOLUTION OF MAY 7, 1940, 54 STAT. 179. 

FN4 6 FED. REG. 2897. 

FN5  FOR OPINIONS OF THE NEW YORK COURTS RELATING TO THE PETITIONER'S
ACTION AGAINST ASCAP, SEE PROPPER V. BUCK, 106 N.Y. LAW JOURNAL, NO.
101, OCTOBER 29, 1941, P. 1268, COL. 5; PROPPER V. BUCK, 263 APP. DIV.
807, 32 N.Y.S.2D 103(1ST DEPT.); PROPPER V. BUCK, 178 MISC. 76, 33
N.Y.S.2D 11(SUP.  CT. N.Y. CO.), AFFIRMED, 263 APP. DIV. 948, 34
N.Y.S.2D 134; PROPPER V. TAYLOR, 186 MISC. 70, 58 N.Y.S.2D 829(SUP. 
CT. N.Y. CO.), AFFIRMED, 270 APP. DIV. 890, 62 N.Y.S.2D 602(1ST DEPT.);
PROPPER V. TAYLOR, 186 MISC. 72, 58 N.Y.S.2D 831(SUP.  CT. N.Y. CO.),
MODIFIED, 270 APP. DIV. 890, 62 N.Y.S.2D 601(1ST DEPT.). 

FN6  THIS LATTER ISSUE WAS BROUGHT FORWARD BY THE PETITION FOR
CERTIORARI, QUESTION PRESENTED NO. 3, AND BEFORE ARGUMENT ITS
DISCUSSION BY BRIEF AND AT THE BAR WAS FORMALLY REQUESTED BY THIS
COURT, ALTHOUGH NO ORDER TO THAT EFFECT WAS ENTERED. 

FN7  SEE TRADING WITH THE ENEMY ACT, 50 U.S.C. APP. SECS. 7(C) AND
616: 

"SEC. 616.  ...  AND ANY PROPERTY OR INTEREST OF ANY FOREIGN COUNTRY
OR NATIONAL THEREOF SHALL VEST, WHEN, AS, AND UPON THE TERMS, DIRECTED
BY THE PRESIDENT, IN SUCH AGENCY OR PERSON AS MAY BE DESIGNATED FROM
TIME TO TIME BY THE PRESIDENT, AND UPON SUCH TERMS AND CONDITIONS AS
THE PRESIDENT MAY PRESCRIBE SUCH INTEREST OR PROPERTY SHALL BE HELD,
USED, ADMINISTERED, LIQUIDATED, SOLD, OR OTHERWISE DEALT WITH IN THE
INTEREST OF AND FOR THE BENEFIT OF THE UNITED STATES, AND SUCH
DESIGNATED AGENCY OR PERSON MAY PERFORM ANY AND ALL ACTS INCIDENT TO
THE ACCOMPLISHMENT OR FURTHERANCE OF THESE PURPOSES; ...  " 

SEE CLARK V. UEBERSEE FINANZ-KORP., 332 U.S. 480. 

FN8  COMPARE GREAT NORTHERN R. CO. V. SUTHERLAND, 273 U.S. 182, WHERE
THE CUSTODIAN VESTED IN HIMSELF BY ORDER ON A CORPORATION THE SHARES OF
STOCK APPEARING ON THE CORPORATION'S BOOKS IN THE NAME OF AN ALIEN
ENEMY. 

IT MAY BE THAT ALL PROPERTY SUBJECT TO BLOCKING MAY NOT BE SUBJECT TO
VESTING.  TRADING WITH THE ENEMY ACT, AS AMENDED BY FIRST WAR POWERS
ACT, 55 STAT. 838, 839, TITLE III (1)(B).  COMPARE BISHOP, JUDICIAL
CONSTRUCTION OF THE TRADING WITH THE ENEMY ACT, 62 HARV. L. REV. 721,
723. 

FN9  55 STAT. 838, 840, 50 U.S.C. APP. SEC. 617. 

FN10  54 STAT. 179: 

"DURING TIME OF WAR OR DURING ANY OTHER PERIOD OF NATIONAL EMERGENCY
DECLARED BY THE PRESIDENT, THE PRESIDENT MAY, THROUGH ANY AGENCY THAT
HE MAY DESIGNATE, OR OTHERWISE, INVESTIGATE, REGULATE, OR PROHIBIT,
UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, BY MEANS OF
LICENSES OR OTHERWISE, ANY TRANSACTIONS IN FOREIGN EXCHANGE, TRANSFERS
OF CREDIT BETWEEN OR PAYMENTS BY OR TO BANKING INSTITUTIONS AS DEFINED
BY THE PRESIDENT,  ...  " 

FN11  54 STAT. 179: 

"SEC. 2.  EXECUTIVE ORDER NUMBERED 8389 OF APRIL 10, 1940, AND THE
REGULATIONS AND GENERAL RULINGS ISSUED THEREUNDER BY THE SECRETARY OF
THE TREASURY ARE HEREBY APPROVED AND CONFIRMED." 

FN12  6 FED. REG. 2898, SEC. 5: 

"F.  THE TERM 'BANKING INSTITUTION' AS USED IN THIS ORDER SHALL
INCLUDE ANY PERSON ENGAGED PRIMARILY OR INCIDENTALLY IN THE BUSINESS OF
BANKING, OF GRANTING OR TRANSFERRING CREDITS, OR OF PURCHASING OR
SELLING FOREIGN EXCHANGE OR PROCURING PURCHASERS AND SELLERS THEREOF,
AS PRINCIPAL OR AGENT, OR ANY PERSON HOLDING CREDITS FOR OTHERS AS A
DIRECT OR INCIDENTAL PART OF HIS BUSINESS, OR BROKERS; AND, EACH
PRINCIPAL, AGENT, HOME OFFICE, BRANCH OR CORRESPONDENT OF ANY PERSON SO
ENGAGED SHALL BE REGARDED AS A SEPARATE 'BANKING INSTITUTION.'" 

FN13  EXECUTIVE ORDER NO. 8785, SUPRA. 

FN14  SEE UNITED STATES TREASURY DEPARTMENT, ADMINISTRATION OF THE
WARTIME FINANCIAL & PROPERTY CONTROLS OF THE UNITED STATES GOVERNMENT
(1942), PP. 1-4. 

FN15  CENTRAL TRUST CO. V. GARVAN, 254 U.S. 554; UNITED STATES V.
CHEMICAL FOUNDATION, 272 U.S. 1; GREAT NORTHERN R. CO. V. SUTHERLAND,
273 U.S. 182; MARKHAM V. ALLEN, 326 U.S. 490; CLARK V. UEBERSEE FINANZ
KORP., 332 U.S. 480. 

FN16  THERE IS A SUGGESTION THAT CONGRESS COULD NOT, BECAUSE OF THE
TENTH AMENDMENT, CONSTITUTIONALLY ABROGATE THE POWER OF NEW YORK
THROUGH ITS COURTS, IN PEACETIME, TO DEAL WITH THE LOCAL ASSETS OF
DEFUNCT FOREIGN CORPORATIONS.  THE CHIEF RELIANCE IS PLACED UPON CLARK
V. WILLIARD, 294 U.S. 211, A CASE THAT HELD THAT, AS BETWEEN STATES,
THE STATE OF THE LOCATION OF CORPORATE ASSETS HAD CONTROL OF THEIR
DISTRIBUTION IN LIQUIDATION.  IT CANNOT BE SERIOUSLY DOUBTED THAT THE
DANGER OF WAR WAS SUFFICIENTLY GRAVE AT THE TIME OF THE FREEZING ORDER,
JUNE 14, 1941, TO JUSTIFY THE PRESIDENT'S ACTION RESPECTING AUSTRIAN
PROPERTY.  CF. SILESIAN-AMERICAN CORP. V. CLARK, 332 U.S. 469, 474
477. 

FN17  50 U.S.C. APP. SECS. 7(C), 9(A).  CF CLARK V. UEBERSEE FINANZ
KORP., 332 U.S. 480, 487; CENTRAL TRUST CO. V. GARVAN, 254 U.S. 554,
567-68; GREAT NORTHERN R. CO. V. SUTHERLAND, 273 U.S. 182, 194; BECKER
CO. V. CUMMINGS, 296 U.S. 74, 79; JOSEPHBERG V. MARKHAM, 152 F.2D 644,
649. 

FN18  293 N.Y. 542, 550, 58 N.E.2D 726, 728: 

"THE FACT THAT FEDERAL REGULATIONS GOVERNING TRANSACTIONS IN FOREIGN
EXCHANGE PREVENT THE PAYMENT TO STANDARD UNTIL A LICENSE UNDER
EXECUTIVE ORDER NO. 8389, AS AMENDED, IS PROCURED DOES NOT MAKE
CONDITIONAL THE OBLIGATION OF THE NEW YORK AGENCY TO PAY.  (SEE UNITED
STATES TREASURY DEPARTMENT, GENERAL RULING NO. 12(4) UNDER EXECUTIVE
ORDER NO. 8389 AS AMENDED; ALSO FEUCHTWANGER V. CENTRAL HANOVER BANK,
288 N.Y. 342.)" 

CF. ID., 121 N.Y.L.J., NO. 95, MAY 16, 1949, P. 1735.  COMPARE POLISH
RELIEF COMM'N V. BANCA N. A. RUMANIEI, 288 N.Y. 332, 43 N.E.2D 345. 

FN19  "(D)  ANY TRANSFER AFFECTED BY THE ORDER AND/OR THIS GENERAL
RULING AND INVOLVED IN, OR ARISING OUT OF, ANY ACTION OR PROCEEDING IN
ANY COURT WITHIN THE UNITED STATES SHALL, SO FAR AS AFFECTED BY THE
ORDER AND/OR THIS GENERAL RULING, BE VALID AND ENFORCEABLE FOR THE
PURPOSE OF DETERMINING FOR THE PARTIES TO THE ACTION OR PROCEEDING THE
RIGHTS AND LIABILITIES THEREIN LITIGATED; PROVIDED, HOWEVER, THAT NO
ATTACHMENT, JUDGMENT, DECREE, LIEN, EXECUTION, GARNISHMENT, OR OTHER
JUDICIAL PROCESS SHALL CONFER OR CREATE A GREATER RIGHT, POWER, OR
PRIVILEGE WITH RESPECT TO, OR INTEREST IN, ANY PROPERTY IN A BLOCKED
ACCOUNT THAN THE OWNER OF SUCH PROPERTY COULD CREATE OR CONFER BY
VOLUNTARY ACT PRIOR TO THE ISSUANCE OF AN APPROPRIATE LICENSE." 

SEE ALSO PUBLIC CIRCULAR NO. 31, AUGUST 2, 1946, 11 FED. REG. 8351. 

FN20  E.G., DECKER V. GARDNER, 124 N.Y. 334, 26 N.E. 814; SEE KEENEY
V. HOME INSURANCE CO., 71 N.Y. 396, 401. 

FN21 E.G., MUTUAL BREWING CO. V. N.Y. & C.P.F. CO., 16 APP. DIV. 149,
45 N.Y.S. 101; METROPOLITAN LIFE INS. CO. V. SANBORN, 34 MISC. 531, 69
N.Y.S. 1009; SEE N.Y. GENERAL CORPORATION LAW SECS. 162, 163, 168, AND
ANNOTATIONS THERETO.  PETITIONER CALLS OUR ATTENTION TO NEALIS V.
AMERICAN TUBE & IRON CO., 150 N.Y. 42, 45, 44 N.E. 944, 945, A CASE NOT
CITED TO THE COURT OF APPEALS.  THIS CASE SAYS THAT A TEMPORARY
RECEIVER UNDER A DIFFERENT STATUTE "IS VESTED WITH TITLE AND REPRESENTS
THE CORPORATION AND ITS CREDITORS AS FULLY AS A PERMANENT RECEIVER
AFTER FINAL JUDGMENT OF DISSOLUTION."  P. 45.  THIS CASE, HOWEVER,
INVOLVED THE RIGHT OF A TEMPORARY RECEIVER TO SUE AND THE OPINION DEALS
WITH THAT PROBLEM RATHER THAN THE DISTINCTION BETWEEN A RIGHT TO OBTAIN
POSSESSION AND TITLE.  SEE IN RE WARREN E. SMITH CO., 31 APP. DIV. 39,
52 N.Y.S. 877, 884. 

FN22  CONNECTICUT R. & L. CO. V. PALMER, 305 U.S. 493. 

FN23  CF. WEST V. RUTLEDGE TIMBER CO., 244 U.S. 90, 100. 

FN24  WHERE THERE IS NO SUGGESTION TO HOLD AND SEND TO A STATE COURT
FOR THE RESOLUTION OF A STATE ISSUE, WE DECIDE ISSUES OF STATE LAW. 
SEE CASES IN FEDERAL COURTS UNDER DIVERSITY JURISDICTION.  WICHITA
ROYALTY CO. V. CITY NATIONAL BANK, 306 U.S. 103; WEST V. A.T. & T. CO.,
311 U.S. 223; FIDELITY TRUST CO. V. FIELD, 311 U.S. 169; SIX COMPANIES
V. HIGHWAY DIST., 311 U.S. 180; STONER V. NEW YORK LIFE INS. CO., 311
U.S. 464; PALMER V. HOFFMAN, 318 U.S. 109, 117. 

FN25  SEE MARKHAM V. ALLEN, 326 U.S. 490; COMMONWEALTH TRUST CO. V.
BRADFORD, 297 U.S. 613; CLARK V. TIBBETTS, 167 F.2D 397, 401. 

MR. CHIEF JUSTICE VINSON TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

MR. JUSTICE JACKSON DISSENTS ON THE GROUND THAT ASCAP IS NOT A
BANKING INSTITUTION UNDER THE DEFINITION IN EXECUTIVE ORDER NO. 8785. 

MR. JUSTICE FRANKFURTER, DISSENTING IN PART. 

THE COURT RECOGNIZES THAT CENTRAL TO DETERMINING THE EFFECT OF THE
ALIEN PROPERTY CUSTODIAN'S FREEZING AND VESTING ORDERS IS THE EFFECT
UNDER NEW YORK LAW OF PETITIONER'S APPOINTMENT AS TEMPORARY RECEIVER ON
JUNE 13, 1941.  IT OBSERVES THAT "THE PRECISE ISSUE OF STATE LAW
INVOLVED, I.E., WHETHER THE TEMPORARY RECEIVER UNDER SEC. 977-B OF THE
NEW YORK CIVIL PRACTICE ACT IS VESTED WITH TITLE BY VIRTUE OF HIS
APPOINTMENT, IS ONE WHICH HAS NOT BEEN DECIDED BY THE NEW YORK
COURTS."  AND IT CONCEDES THAT THE LANGUAGE OF THE RELEVANT NEW YORK
STATUTES "IS EASILY SUSCEPTIBLE OF VARYING INTERPRETATIONS."  YET IT
PUTS ITS OWN INTERPRETATION ON THOSE STATUTES THOUGH THAT
INTERPRETATION MAY BE DISPLACED TOMORROW BY THE ONLY COURTS WHICH HAVE
POWER TO RENDER AN AUTHORITATIVE INTERPRETATION OF NEW YORK LAW - THE
COURTS OF THE STATE OF NEW YORK. 

IN OTHER CASES THAT HAVE COME BEFORE US IN WHICH DECISION OF A
FEDERAL ISSUE OR THE NECESSITY FOR ITS DECISION DEPENDED ON A SERIOUSLY
DOUBTFUL QUESTION OF STATE LAW, WE HAVE DIRECTED THAT APPLICATION
SHOULD FIRST BE MADE TO THE COURTS OF THE STATE FOR FINAL DISPOSITION
OF THE STATE QUESTION.  THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S.
478; RAILROAD COMM'N OF TEXAS V. PULLMAN CO., 312 U.S. 496; CHICAGO V.
FIELDCREST DAIRIES, 316 U.S. 168; SPECTOR MOTOR SERVICE, INC. V.
MCLAUGHLIN, 323 U.S. 101; A.F. OF L. V. WATSON, 327 U.S. 582.  IN EACH
OF THESE CASES THE DISCRETION OF A FEDERAL COURT OF EQUITY COULD
PRACTICABLY BE EXERCISED IN A WAY WHICH RETAINED ULTIMATE JURISDICTION
OF THE CASE WHILE PERMITTING ADJUDICATION OF THE STATE QUESTION IN THE
STATE COURTS.  IN EACH THERE WERE AVAILABLE STATE PROCEDURES CAPABLE OF
PROVIDING A PROMPT DECISION, AND THE LITIGATION HAD NOT ALREADY
CONSUMED SUCH AN UNCONSCIONABLE AMOUNT OF TIME AS TO MAKE RECOURSE TO
THEM INEXPEDIENT.  CF. PUBLIC UTILITIES COMM'N V. UNITED FUEL GAS CO.,
317 U.S. 456.  THE PRESENT CASE MEETS ALL THOSE CONDITIONS, SEE N.Y.
CIV. PRAC.  ACT SEC. 473, AND SHOULD RECEIVE THE SAME DISPOSITION.   IT
IS TRUE THAT IN ALL BUT ONE OF THESE CASES RECOURSE TO THE STATE COURTS
ALSO SERVED THE PURPOSE OF AVOIDING WHAT MIGHT HAVE PROVED TO BE
UNNECESSARY DECISION OF A CONSTITUTIONAL ISSUE.  BUT SEE THOMPSON V.
MAGNOLIA PETROLEUM CO., 309 U.S. 478.  EVEN MORE FUNDAMENTAL, HOWEVER,
WAS RECOGNITION OF THE IMPORTANCE OF MAINTAINING HARMONIOUS RELATIONS
BETWEEN PARALLEL SYSTEMS OF STATE AND FEDERAL COURTS IN A SITUATION
WHERE, BECAUSE STATE LAW CONTROLLED, THE STATE COURTS HAD THE LAST WORD
AND SO A FEDERAL COURT AT BEST COULD MAKE ONLY AN INFORMED GUESS.  THAT
THIS WAS A DOMINANT CONSIDERATION IN THE MIND OF THE COURT APPEARS
PLAINLY IN THE LANGUAGE OF ITS OPINIONS.  THE FOLLOWING PASSAGES ARE
ILLUSTRATIVE: 

1.  "THE LAST WORD ON THE MEANING OF ARTICLE 6445 OF THE TEXAS CIVIL
STATUTES, AND THEREFORE THE LAST WORD ON THE STATUTORY AUTHORITY OF THE
RAILROAD COMMISSION IN THIS CASE, BELONGS NEITHER TO US NOR TO THE
DISTRICT COURT BUT TO THE SUPREME COURT OF TEXAS.  IN THIS SITUATION A
FEDERAL COURT OF EQUITY IS ASKED TO DECIDE AN ISSUE BY MAKING A
TENTATIVE ANSWER WHICH MAY BE DISPLACED TOMORROW BY A STATE
ADJUDICATION.  ...  THE REIGN OF LAW IS HARDLY PROMOTED IF AN
UNNECESSARY RULING OF A FEDERAL COURT IS THUS SUPPLANTED BY A
CONTROLLING DECISION OF A STATE COURT.  ... 

"FEW PUBLIC INTERESTS HAVE A HIGHER CLAIM UPON THE DISCRETION OF A
FEDERAL CHANCELLOR THAN THE AVOIDANCE OF NEEDLESS FRICTION WITH STATE
POLICIES, WHETHER THE POLICY RELATES TO THE ENFORCEMENT OF THE CRIMINAL
LAW, FENNER V. BOYKIN, 271 U.S. 240; SPIELMAN MOTOR CO. V. DODGE, 295
U.S. 89; OR THE ADMINISTRATION OF A SPECIALIZED SCHEME FOR LIQUIDATING
EMBARRASSED BUSINESS ENTERPRISES, PENNSYLVANIA V. WILLIAMS, 294 U.S.
176; OR THE FINAL AUTHORITY OF A STATE COURT TO INTERPRET DOUBTFUL
REGULATORY LAWS OF THE STATE, GILCHRIST V. INTERBOROUGH CO., 279 U.S.
159; CF. HAWKS V. HAMILL, 288 U.S. 52, 61.  THESE CASES REFLECT A
DOCTRINE OF ABSTENTION APPROPRIATE TO OUR FEDERAL SYSTEM WHEREBY THE
FEDERAL COURTS, 'EXERCISING A WISE DISCRETION,' RESTRAIN THEIR
AUTHORITY BECAUSE OF 'SCRUPULOUS REGARD FOR THE RIGHTFUL INDEPENDENCE
OF THE STATE GOVERNMENTS' AND FOR THE SMOOTH WORKING OF THE FEDERAL
JUDICIARY.  SEE CAVANAUGH V. LOONEY, 248 U.S. 453, 457; DI GIOVANNI V.
CAMDEN INS. ASSN., 296 U.S. 64, 73."  RAILROAD COMM'N OF TEXAS V.
PULLMAN CO., 312 U.S. 496, 499-501. 

2.  "WE ARE OF THE OPINION THAT THE PROCEDURE WHICH WE FOLLOWED IN
THE PULLMAN CASE SHOULD BE FOLLOWED HERE.  ILLINOIS HAS THE FINAL SAY
AS TO THE MEANING OF THE ORDINANCE IN QUESTION.  IT ALSO HAS THE FINAL
WORD ON THE ALLEGED CONFLICT BETWEEN THE ORDINANCE AND THE STATE ACT. 
THE DETERMINATION WHICH THE DISTRICT COURT, THE CIRCUIT COURT OF
APPEALS, OR WE, MIGHT MAKE COULD NOT BE ANYTHING MORE THAN A FORECAST -
A PREDICTION AS TO THE ULTIMATE DECISION OF THE SUPREME COURT OF
ILLINOIS.  ...  AS WE SAID IN THE PULLMAN CASE, 'THE RESOURCES OF
EQUITY ARE EQUAL TO AN ADJUSTMENT THAT WILL AVOID THE WASTE OF A
TENTATIVE DECISION' AND ANY 'NEEDLESS FRICTION WITH STATE POLICIES.' 
...  IT IS AN EXERCISE OF A 'SOUND DISCRETION, WHICH GUIDES THE
DETERMINATION OF COURTS OF EQUITY.'  BEAL V. MISSOURI PACIFIC R. CO.,
(312 U.S. 45, 50).  IN THIS CASE, THAT DISCRETION CALLS FOR A REMISSION
OF THE PARTIES TO THE STATE COURTS, WHICH ALONE CAN GIVE A DEFINITIVE
ANSWER TO THE MAJOR QUESTIONS POSED.  PLAINLY, THEY CONSTITUTE THE MORE
APPROPRIATE FORUM FOR THE TRIAL OF THOSE ISSUES.  SEE 54 HARV. L. REV.
1379.  CONSIDERATIONS OF DELAY, INCONVENIENCE, AND COST TO THE PARTIES,
WHICH HAVE BEEN URGED UPON US, DO NOT CALL FOR A DIFFERENT RESULT.  FOR
WE ARE HERE CONCERNED WITH THE MUCH LARGER ISSUE AS TO THE APPROPRIATE
RELATIONSHIP BETWEEN FEDERAL AND STATE AUTHORITIES FUNCTIONING AS A
HARMONIOUS WHOLE."  CHICAGO V. FIELDCREST DAIRIES, 316 U.S. 168, 171
73. 

3.  "  ...  IF, AS THE DISTRICT COURT THOUGHT, THIS FLORIDA LAW IS
NOT SELF-EXECUTING, SUITS SEEKING TO RAISE THE DUE PROCESS QUESTION OR
ANY OTHER CONSTITUTIONAL QUESTION WOULD BE PREMATURE UNTIL FLORIDA
SUPPLIED SANCTIONS FOR ITS ENFORCEMENT.  A DECISION TODAY ON THE MERITS
MIGHT, THEREFORE, AMOUNT TO NO MORE THAN AN ADVISORY OPINION.  ...  THE
RESOURCES OF EQUITY ARE NOT INADEQUATE TO DEAL WITH THE PROBLEM SO AS
TO AVOID UNNECESSARY FRICTION WITH STATE POLICIES, WHILE SELECTIVE
CASES GO FORWARD IN THE STATE COURTS FOR AN ORDERLY AND EXPEDITIOUS
ADJUDICATION OF THE STATE LAW QUESTIONS."  A.F. OF L. V. WATSON, 327
U.S. 582, 598-99. 

SO HERE, THOUGH NO CONSTITUTIONAL ISSUE IS PRESENT, REGARD FOR THE
RESPECTIVE ORBITS OF STATE AND FEDERAL TRIBUNALS IS THE BEST OF
REASONS, AS A MATTER OF JUDICIAL ADMINISTRATION, FOR REQUIRING A
DEFINITIVE ADJUDICATION BY THE NEW YORK COURTS RATHER THAN PROCEEDING
ON THE BASIS OF OUR OWN TENTATIVE GUESS AS TO THE MEANING OF THE NEW
YORK STATUTES.  THAT FEDERAL ISSUES MAY REMAIN IS NO JUSTIFICATION FOR
REFUSING TO SUBMIT TO THE NEW YORK COURTS A SEPARABLE ISSUE OF NEW YORK
LAW.  WE HAVE NO OCCASION TO ASSUME THAT THEY WILL GO ON TO DECIDE
THESE FEDERAL QUESTIONS WHEN A FEDERAL COURT HAS EXPRESSLY RETAINED
JURISDICTION TO DECIDE THEM.  CF. FEDERAL POWER COMM'N V. PACIFIC POWER
& L. CO., 307 U.S. 156, 160. 

WE SHOULD REMAND THE CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO
RETAIN JURISDICTION PENDING SUBMISSION TO THE COURTS OF NEW YORK BY
APPROPRIATE PROCEEDINGS OF THE QUESTION WHETHER TITLE TO AKM'S CLAIM
AGAINST ASCAP PASSED TO PETITIONER UPON HIS APPOINTMENT AS TEMPORARY
RECEIVER. 
..END :

















POWER COMM'N V. PANHANDLE CO., 337 U.S. 498 


NO. 558.  ARGUED APRIL 22, 1949.  - DECIDED JUNE 20, 1949.  - 172 F.2D
57, AFFIRMED. 


A NATURAL-GAS COMPANY WHICH IS SUBJECT TO THE NATURAL GAS ACT MAY SELL
THE LEASES COVERING AN ESTIMATED 12% OF ITS TOTAL GAS RESERVES WITHOUT
THE APPROVAL AND CONTRARY TO AN ORDER OF THE FEDERAL POWER COMMISSION. 
PP. 499-507. 

1.  SECTION 1(B) OF THE NATURAL GAS ACT, EXCLUDING "THE PRODUCTION OR
GATHERING OF NATURAL GAS" FROM THE COMMISSION'S JURISDICTION, LEFT THE
TRANSFER OF GAS LEASES TO STATE REGULATION AND OUTSIDE THE SCOPE OF THE
COMMISSION'S REGULATORY POWERS.  PP. 502-505. 

2.  SECTIONS 5(B), 6(A) AND (B), 8(A), 9(A), 10(A) AND 14(B),
EMPOWERING THE COMMISSION TO MAKE INVESTIGATIONS, TO PRESCRIBE RULES
FOR THE KEEPING OF ACCOUNTS AND RECORDS BY NATURAL-GAS COMPANIES, AND
TO REQUIRE THEM TO FILE SUCH REPORTS AS ARE DEEMED NECESSARY BY THE
COMMISSION IN THE PROPER ADMINISTRATION OF THE ACT, DO NOT REQUIRE A
DIFFERENT RESULT.  PP. 505-507. 

3.  NOR IS A DIFFERENT RESULT REQUIRED BY SECS. 7(C), 4, 5 AND 16,
AUTHORIZING THE COMMISSION TO ISSUE CERTIFICATES OF CONVENIENCE AND
NECESSITY FOR THE INTERSTATE TRANSPORTATION AND SALE OF NATURAL GAS, TO
DETERMINE REASONABLE RATES FOR SUCH TRANSPORTATION AND SALE, AND TO DO
THE THINGS APPROPRIATE TO CARRY OUT THE PROVISIONS OF THE ACT - EVEN
WHEN THE LEASES INVOLVED WERE USED TO JUSTIFY THE ISSUANCE OF
CERTIFICATES OF CONVENIENCE AND NECESSITY.  PP. 507-508. 

4.  NOR IS A DIFFERENT RESULT REQUIRED BY SEC. 7(B), WHICH FORBIDS
ANY NATURAL-GAS COMPANY TO ABANDON ANY OF ITS FACILITIES SUBJECT TO THE
JURISDICTION OF THE COMMISSION WITHOUT THE PRIOR APPROVAL OF THE
COMMISSION.  PP. 508-513. 

5.  THE CONCLUSION HERE REACHED IS SUPPORTED BY THE UNDISPUTED
FINDING BY THE DISTRICT COURT THAT IT HAS BEEN THE PRACTICE FOR NATURAL
GAS COMPANIES TO TRADE FREELY IN GAS LEASES AND THAT THE COMMISSION HAS
NEVER BEFORE ASSERTED THE RIGHT TO REGULATE THE TRANSFER OF SUCH
LEASES.  PP. 513-514. 

6.  SINCE THE COMMISSION COULD NOT STOP THE TRANSFER OF A GAS LEASE,
IT WAS NOT ENTITLED TO AN INJUNCTION DELAYING SUCH A TRANSFER UNTIL IT
COULD COMPLETE AN INVESTIGATION AND DETERMINE ITS OWN POWER AND THE
NECESSITY FOR USING IT.  PP. 514-516. 

FEDERAL POWER COMMISSION V. PANHANDLE EASTERN PIPE LINE CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

A FEDERAL DISTRICT COURT DENIED AN INJUNCTION SOUGHT BY THE FEDERAL
POWER COMMISSION TO BAR THE SALE OF CERTAIN GAS LEASES BY A NATURAL-GAS
COMPANY SUBJECT TO THE NATURAL GAS ACT.  THE COURT OF APPEALS
AFFIRMED.  172 F.2D 57.  THIS COURT GRANTED CERTIORARI.  336 U.S. 935. 
AFFIRMED, P. 516. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

STATED BROADLY THIS CERTIORARI BRINGS BEFORE US FOR REVIEW A PROBLEM
INVOLVING THE SCOPE OF THE POWER OVER THE GAS RESERVES OF A NATURAL-GAS
COMPANY GIVEN TO THE FEDERAL POWER COMMISSION BY THE NATURAL GAS ACT. 
52 STAT. 821, AS AMENDED, 56 STAT. 83.  SPECIFICALLY THE QUESTION TO BE
DECIDED IS WHETHER A NATURAL-GAS COMPANY, SUBJECT TO THE ACT, MAY SELL
THE LEASES COVERING AN ESTIMATED TWELVE PER CENT OF ITS TOTAL GAS
RESERVES WITHOUT THE APPROVAL AND CONTRARY TO AN ORDER OF THE
COMMISSION. 

THE ISSUE IS MADE VERY SHARPLY BECAUSE THE DISTRICT COURT AND THE
COURT OF APPEALS HAVE REFUSED AN INJUNCTION, SOUGHT BY THE COMMISSION,
TO HOLD THE CONSUMMATION OF THE SALE IN ABEYANCE UNTIL THE COMMISSION,
THROUGH AN ADMITTEDLY PERMISSIBLE INVESTIGATION, CAN DETERMINE WHETHER
THE DISPOSAL OF THESE RESERVES WILL IMPAIR THE ABILITY OF PANHANDLE TO
SUPPLY ITS PRESENT AND PROSPECTIVE CUSTOMERS IN THE AREA WHICH IT HAS
UNDERTAKEN TO SERVE AS A PUBLIC UTILITY.  THE COMMISSION MAY FIND THAT
PUBLIC INTEREST WILL BEST BE SERVED BY REQUIRING PANHANDLE TO RETAIN
THESE RESERVES.  THE PUBLIC INTEREST HAS STRONG APPEAL TO A COURT OF
EQUITY FOR ITS REMEDIES ONCE A LEGAL RIGHT IS FAIRLY IN CONTROVERSY. 
FN1 

RESPONDENT, PANHANDLE EASTERN PIPE LINE COMPANY (HEREIN CALLED
PANHANDLE), A DELAWARE CORPORATION, TRANSPORTS AND MARKETS NATURAL GAS
IN INTERSTATE COMMERCE BY MEANS OF ITS PIPE-LINE SYSTEM WHICH RUNS FROM
TEXAS INTO MICHIGAN.  IN ADDITION IT OWNS OR CONTROLS GAS-PRODUCING
PROPERTIES IN KANSAS, OKLAHOMA, AND TEXAS. 

IN SEPTEMBER, 1948, PANHANDLE ORGANIZED HUGOTON PRODUCTION COMPANY
(HEREINAFTER CALLED HUGOTON), ALSO A DELAWARE CORPORATION.  ON OCTOBER
11, 1948, PURSUANT TO A WRITTEN AGREEMENT BETWEEN THE TWO COMPANIES,
PANHANDLE TRANSFERRED TO HUGOTON GAS LEASES ON APPROXIMATELY 97,000
ACRES OF LAND IN KANSAS AND $675,000 IN CASH.  IN RETURN PANHANDLE
RECEIVED ALL THE OUTSTANDING CAPITAL STOCK OF HUGOTON AND THE OPTION TO
PURCHASE ON OR AFTER JANUARY 1, 1965, ALL OR PART OF THE GAS PRODUCED
FROM THIS LAND, WHICH IS AT PRESENT UNDEVELOPED AND NOT CONNECTED WITH
ANY PIPE-LINE SYSTEM.  THE GAS RESERVES UNDER THIS ACREAGE ARE
ESTIMATED AT APPROXIMATELY 700 BILLION CUBIC FEET.  HUGOTON THEREAFTER
CONTRACTED TO SELL TO THE KANSAS POWER AND LIGHT COMPANY FOR A PERIOD
OF FIFTEEN YEARS FROM NOVEMBER 1, 1949, TO NOVEMBER 1, 1964, THE GAS
PRODUCED FROM THESE LEASES, WHICH, ACCORDING TO THE CONTRACT, WAS TO BE
CONSUMED WHOLLY WITHIN THE STATE OF KANSAS. 

ON THE SAME DATE AS THE TRANSACTION BETWEEN PANHANDLE AND HUGOTON,
PANHANDLE DECLARED A DIVIDEND OF THE HUGOTON STOCK TO THE HOLDERS OF
ITS COMMON STOCK AT THE RATE OF ONE-HALF SHARE OF HUGOTON STOCK FOR
EACH SHARE OF COMMON STOCK OF PANHANDLE.  THE DIVIDEND WAS TO BE PAID
NOVEMBER 17, 1948, TO PANHANDLE'S STOCKHOLDERS OF RECORD ON OCTOBER 29,
1948.  NOTHING CALLED TO OUR ATTENTION INDICATES ANY CONTROL RETAINED
BY PANHANDLE OVER THE HUGOTON STOCK. 

ON OCTOBER 26, 1948, THE FEDERAL POWER COMMISSION (HEREINAFTER CALLED
THE COMMISSION) ORDERED AN INVESTIGATION "PURSUANT TO THE PROVISIONS OF
INVOLVED IN THE FORMATION AND PROPOSED OPERATION OF THE HUGOTON
PRODUCTION COMPANY AND THE TRANSFER TO SAID COMPANY BY PANHANDLE
EASTERN OF THE NATURAL-GAS RESERVES  ...  "  BY A SUPPLEMENTARY ORDER
OF NOVEMBER 10, 1948, HUGOTON WAS JOINED AS A PARTY, A DATE FOR A
PUBLIC HEARING WAS FIXED, AND HUGOTON AND PANHANDLE ORDERED TO SHOW
CAUSE WHY THEY SHOULD NOT BE DIRECTED TO CANCEL THE CONTRACT, AND WHY
PANHANDLE SHOULD NOT BE PROHIBITED FROM TRANSFERRING THE LEASES WITHOUT
THE CONSENT OF THE COMMISSION AND FROM DISTRIBUTING THE HUGOTON STOCK
TO ITS STOCKHOLDERS.  PENDING A FINAL DETERMINATION, THE COMMISSION
ORDERED THAT THE STATUS QUO BE MAINTAINED BY PANHANDLE AND HUGOTON. 

UPON THE APPARENT REFUSAL OF PANHANDLE TO COMPLY WITH THIS ORDER, THE
COMMISSION ON NOVEMBER 13, 1948, INSTITUTED THE INSTANT SUIT IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, SEEKING A
PRELIMINARY INJUNCTION AND A TEMPORARY RESTRAINING ORDER TO COMPEL
PANHANDLE TO PROCEED NO FURTHER WITH THE STOCK DISTRIBUTION AND TO
MAINTAIN THE STATUS QUO PENDING THE FINAL DETERMINATION OF THE
QUESTIONS FOR WHICH THE HEARING BEFORE THE COMMISSION HAD BEEN SET. 
THE DISTRICT COURT ISSUED THE TEMPORARY RESTRAINING ORDER WHICH HAS
BEEN KEPT IN EFFECT BY SUCCESSIVE ORDERS AND WHICH ENJOINED PANHANDLE
FROM ISSUING TO ITS STOCKHOLDERS THE DIVIDEND OF HUGOTON STOCK. 
PANHANDLE WAS ORDERED TO CAUSE HUGOTON TO REFRAIN FROM TRANSFERRING ANY
OF THE GAS LEASES AND FROM ISSUING OR TRANSFERRING ANY OF ITS CAPITAL
STOCK.  AFTER A HEARING, THE DISTRICT COURT REFUSED TO GRANT THE
PRELIMINARY INJUNCTION, ON THE GROUND THAT THERE HAD NOT BEEN SHOWN ANY
BASIS FOR THE RELIEF SOUGHT BY THE COMMISSION. 

ON APPEAL, THE COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT ON THE GROUND THAT SEC. 1(B) OF THE
NATURAL GAS ACT, EXCLUDING "THE PRODUCTION OR GATHERING OF NATURAL GAS"
FROM THE COMMISSION'S JURISDICTION, LEFT THE TRANSFER OF GAS LEASES TO
STATE REGULATION AND OUTSIDE THE SCOPE OF THE COMMISSION'S REGULATORY
POWERS.  172 F.2D 57.  THE STATE CORPORATION COMMISSION OF KANSAS HAD
BEEN GRANTED LEAVE TO INTERVENE IN THE COURT OF APPEALS IN OPPOSITION
TO THE FEDERAL POWER COMMISSION. 

TO CONSIDER THE IMPORTANT QUESTION OF THE APPLICABILITY OF THE
NATURAL GAS ACT TO THIS TRANSACTION, WE GRANTED CERTIORARI.  336 U.S.
935. 

WITHOUT ENTERING UPON ANOTHER REVIEW OF ITS LEGISLATIVE HISTORY,  FN2
SUFFICE IT TO SAY THAT THE NATURAL GAS ACT DID NOT ENVISAGE FEDERAL
REGULATION OF THE ENTIRE NATURAL-GAS FIELD TO THE LIMIT OF
CONSTITUTIONAL POWER.  RATHER IT CONTEMPLATED THE EXERCISE OF FEDERAL
POWER AS SPECIFIED IN THE ACT, PARTICULARLY IN THAT INTERSTATE SEGMENT
WHICH THE STATES WERE POWERLESS TO REGULATE BECAUSE OF THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION.  FN3  THE JURISDICTION OF THE
FEDERAL POWER COMMISSION WAS TO COMPLEMENT THAT OF THE STATE REGULATORY
BODIES.  FN4  ACCORDINGLY, CONGRESS IN SEC. 1(B) OF THE ACT NOT ONLY
PRESCRIBED THE INTENDED REACH OF THE COMMISSION'S POWER, BUT ALSO
SPECIFIED THE AREAS INTO WHICH THIS POWER WAS NOT TO EXTEND. 


"(B)  THE PROVISIONS OF THIS ACT SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

"THIS SECTION DETERMINES THE ACT'S COVERAGE AND DOES SO IN THE LIGHT
OF THE SITUATION EXISTING AT THE TIME.  THREE THINGS AND THREE ONLY
CONGRESS DREW WITHIN ITS OWN REGULATORY POWER, DELEGATED BY THE ACT TO
ITS AGENT, THE FEDERAL POWER COMMISSION.  THESE WERE:  (1) THE
TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE; (2) ITS SALE IN
INTERSTATE COMMERCE FOR RESALE; AND (3) NATURAL GAS COMPANIES ENGAGED
IN SUCH TRANSPORTATION OR SALE."  PANHANDLE EASTERN PIPE LINE CO. V.
PUBLIC SERVICE COMMISSION OF INDIANA, 332 U.S. 507, 516.  THE ACT,
MOREOVER, EXPRESSLY EXEMPTS FROM ITS COVERAGE  FN5  (1) ANY OTHER
TRANSPORTATION OR SALE OF NATURAL GAS; (2) THE LOCAL DISTRIBUTION OF
NATURAL GAS; (3) THE FACILITIES USED FOR LOCAL DISTRIBUTION; AND (4)
THE PRODUCTION AND GATHERING OF NATURAL GAS. 

THE COMMISSION SEEKS TO DISTINGUISH BETWEEN THE ACTIVITIES OF
PRODUCTION AND GATHERING, SUCH AS DRILLING, SPACING WELLS, OR
COLLECTING GAS, AND THE FACILITIES, SUCH AS RESERVES AND GAS LEASES,
USED THEREFOR AND ARGUES THAT ONLY THE FORMER WERE EXCLUDED FROM THE
COVERAGE OF THE ACT.  IN SUPPORT OF THIS POSITION IT IS POINTED OUT
THAT THE SECTION SPECIFICALLY EXEMPTS BOTH THE LOCAL DISTRIBUTION AND
THE FACILITIES USED THEREFOR, WHILE IT MAKES NO MENTION OF THE
FACILITIES USED FOR PRODUCTION OR GATHERING.  FN6  IN THE FACE OF THE
UNAMBIGUOUS LANGUAGE OF THE ACT AND ITS LEGISLATIVE BACKGROUND, WE
CANNOT ASCRIBE SUCH A NARROW MEANING TO THE WORDS, "THE PRODUCTION OR
GATHERING OF NATURAL GAS."  IN COLORADO INTERSTATE GAS CO. V. FEDERAL
POWER COMMISSION, 324 U.S. 581, 603, WE SAID THAT THIS PHRASE
COMPREHENDED THE PRODUCING PROPERTIES AND GATHERING FACILITIES OF A
NATURAL-GAS COMPANY.  WE NOW ADHERE TO THIS NATURAL AND CLEAR MEANING
OF THE WORDS AND THEIR OBVIOUS EXPRESSION OF CONGRESSIONAL INTENT N7. 
OF COURSE LEASES ARE AN ESSENTIAL PART OF PRODUCTION. 

THE COMMISSION CITES SECS. 5(B), 6(A) AND (B), 8(A), 9(A), 10(A), AND
14(B) TO SHOW THAT CONGRESS INTENDED "TO CONFER A CERTAIN MEASURE OF
AUTHORITY UPON THE COMMISSION" OVER THE PRODUCTION AND GATHERING OF
GAS.  THESE SECTIONS EMPOWER THE COMMISSION TO MAKE INVESTIGATIONS, TO
PRESCRIBE RULES FOR THE KEEPING OF ACCOUNTS AND RECORDS BY THE NATURAL
GAS COMPANIES, AND TO REQUIRE THAT THE COMPANIES FILE SUCH REPORTS AS
ARE DEEMED NECESSARY BY THE COMMISSION IN THE PROPER ADMINISTRATION OF
THE ACT.  THESE POWERS ARE INQUISITORIAL IN NATURE AND WERE DESIGNED TO
AID THE COMMISSION IN EXERCISING ITS POWERS AND "TO SERVE AS A BASIS
FOR RECOMMENDING FURTHER LEGISLATION TO THE CONGRESS."  SECTION 14(B),
QUOTED BELOW, COMES CLOSEST TO SUPPORTING THE COMMISSION'S ARGUMENT BUT
THAT CONFERS ONLY POWER TO OBTAIN INFORMATION.  FN8  ALTHOUGH THESE
RELATIONSHIP OF PRODUCTION PROPERTIES TO OTHER ELEMENTS OF THE NATURAL
GAS BUSINESS, THEY DO NOT EVEN BY IMPLICATION SUGGEST TO US AN
EXTENSION OF THE REGULATORY PROVISIONS OF THE ACT TO COVER INCIDENTS
CONNECTED WITH THE PRODUCTION OR GATHERING OF GAS. 

IN COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMMISSION, SUPRA, AT
602, THE COURT IN CONSIDERING THE MORE IMPORTANT OF THESE SECTIONS SAID
THAT THEY DESCRIBED POWERS WHICH WERE AIDS TO THE "NORMAL CONVENTIONS"
OF RATE MAKING.  WE HELD THAT THE COMMISSION IN EXERCISING ITS RATE
MAKING AUTHORITY COULD INCLUDE THE FAIR VALUE OF THE PRODUCING AND
GATHERING FACILITIES IN THE RATE BASE OF A NATURAL-GAS COMPANY.  THE
PRIMARY DUTY OF THE COMMISSION IS TO FIX JUST AND REASONABLE RATES FOR
THE TRANSPORTATION AND SALE OF NATURAL GAS IN INTERSTATE COMMERCE FOR
RESALE.  FOR THIS PURPOSE THE COURT PERMITTED THE COMMISSION TO EXAMINE
AND CONSIDER THE COST OF PRODUCTION AND GATHERING.  THE USE OF SUCH
DATA FOR RATE MAKING IS NOT A PRECEDENT FOR REGULATION OF ANY PART OF
PRODUCTION OR MARKETING.  BEFORE THE COLORADO INTERSTATE DECISION, IT
WAS APPARENT THAT THE VALUE OF PRODUCING FACILITIES AND THE COST OF GAS
BOUGHT BY A NATURAL-GAS COMPANY FROM PRODUCERS WOULD BE WEIGHTY FACTORS
IN RATE MAKING WHETHER A RATE-BASE METHOD OR OTHER METHOD FOR FIXING
RATES WAS USED.  LOW VALUATION BY THE COMMISSION OF PRODUCING
PROPERTIES OR LOW-COST ALLOWANCE FOR PURCHASED GAS DISCOURAGES
EXPLORATION FOR GAS OR ITS SALE IN INTERSTATE COMMERCE.  FN9 CONGRESS
KNEW THIS NECESSARY RELATIONSHIP BETWEEN PRODUCTION AND DISTRIBUTION
BUT EXCLUDED THE COMMISSION FROM EXERCISING ANY DIRECT CONTROL OR
REGULATION OVER THE ACTUAL PRODUCTION AND GATHERING OF NATURAL GAS. 

THE COMMISSION URGES IT HAS JURISDICTION OVER THE TRANSACTION BETWEEN
PANHANDLE AND HUGOTON FROM THE POWERS GRANTED TO IT BY SEC. 7(C) OF THE
ACT WHICH AUTHORIZES IT TO ISSUE CERTIFICATES OF CONVENIENCE AND
NECESSITY FOR THE INTERSTATE TRANSPORTATION AND SALE OF NATURAL GAS AND
THOSE GRANTED TO IT BY SECS. 4 AND 5 TO DETERMINE REASONABLE RATES FOR
SUCH TRANSPORTATION AND SALE.  IT IS POINTED OUT THAT PANHANDLE IN
THREE APPLICATIONS FOR CERTIFICATES OF CONVENIENCE AND NECESSITY TO
CONSTRUCT ADDITIONAL PIPELINE FACILITIES HAD INCLUDED THE ACREAGE HERE
INVOLVED AS PART OF ITS GAS RESERVES, AND CERTIFICATES WERE ISSUED UPON
THE FINDING BY THE COMMISSION THAT PANHANDLE HAD ADEQUATE RESERVES TO
WARRANT ITS EXPANSION.  FN10  MOREOVER PANHANDLE HAD BEEN PERMITTED TO
INCLUDE THESE RESERVES IN ITS RATE BASE AS "USED AND USEFUL PROPERTY." 
THE COMMISSION, THEREFORE, ARGUES THAT THESE GAS LEASES WHICH PANHANDLE
PROPOSES TO GRANT TO HUGOTON HAVE BEEN DEDICATED TO THE DISCHARGE OF
PANHANDLE'S PUBLIC-UTILITY OBLIGATION TO RENDER ADEQUATE SERVICE AT
REASONABLE AND NONDISCRIMINATORY RATES.  FROM THESE CIRCUMSTANCES, THE
COMMISSION CONCLUDES THAT THESE LEASES CANNOT BE RELINQUISHED BY
PANHANDLE WITHOUT THE CONSENT OF THE COMMISSION, WHICH HAS THE IMPLIED
POWER TO PROTECT ITS RATE-MAKING FUNCTION AND TO INSURE THE MAINTENANCE
OF ADEQUATE SERVICE BY A NATURAL-GAS COMPANY.  SECTIONS 4, 5 AND 7 DO
NOT CONCERN THE PRODUCING OR GATHERING OF NATURAL GAS; RATHER THEY HAVE
REFERENCE TO THE INTERSTATE SALE AND TRANSPORTATION OF GAS AND ARE SO
LIMITED BY THEIR EXPRESS TERMS.  THUS SECS. 4(A), (B), (C), 5(A) AND
7(C) SPEAK OF "TRANSPORTATION OR SALE OF NATURAL GAS SUBJECT TO THE
JURISDICTION OF THE COMMISSION" WHILE SEC. 7(A) AND (B) REFER
RESPECTIVELY TO "TRANSPORTATION FACILITIES" AND "FACILITIES SUBJECT TO
THE JURISDICTION OF THE COMMISSION."  FN11  NOTHING IN THE SECTIONS
INDICATES THAT THE POWER GIVEN TO THE COMMISSION OVER NATURAL-GAS
COMPANIES BY SEC. 1(B) COULD HAVE BEEN INTENDED TO SWALLOW ALL THE
EXCEPTIONS OF THE SAME SECTION AND THUS EXTEND THE POWER OF THE
COMMISSION TO THE CONSTITUTIONAL LIMIT OF CONGRESSIONAL AUTHORITY OVER
COMMERCE.  THE REPETITION OF THE WORDS "SUBJECT TO THE JURISDICTION"
MAKES CLEAR TO US THE INTENT TO KEEP THE COMMISSION'S HANDS OUT OF THE
EXCEPTED LOCAL MATTERS.  THE SAME ANSWER APPLIES TO PETITIONER'S
ARGUMENT THAT SEC. 16 GIVES IT AUTHORITY TO STOP SALES OF LEASES.  FN12
THE POWER TO DO THE THINGS APPROPRIATE TO CARRY OUT THE PROVISIONS OF
THE ACT CAN HARDLY BE TAKEN TO RESCIND A PROHIBITION AGAINST CERTAIN
ACTIONS. 

THE FEDERAL POWER COMMISSION LEANS HEAVILY UPON SEC. 7(B), WHICH
PROVIDES THAT NO NATURAL-GAS COMPANY MAY ABANDON ANY OF ITS FACILITIES
SUBJECT TO THE JURISDICTION OF THE COMMISSION WITHOUT THE PRIOR
APPROVAL OF THE COMMISSION.  FN13  THE ARGUMENT HERE IS THAT SINCE
NATURAL GAS IS THE "LIFEBLOOD" OF A PIPE-LINE SYSTEM, A COMPANY BY
DISPOSING OF ITS GAS RESERVES, UNHAMPERED BY COMMISSION CONTROL, MAY
RENDER ITSELF UNABLE TO CONTINUE SERVICE; CONSEQUENTLY ABANDONMENT OF
FACILITIES AND SERVICE WITHOUT THE CONSENT OF THE COMMISSION WILL
RESULT.  THE ARGUMENT BEGS THE QUESTION.  THE SECTION, LIKE THOSE
ABOVE, COVERS ONLY "FACILITIES SUBJECT TO THE JURISDICTION OF THE
COMMISSION." 

TO ACCEPT THESE ARGUMENTS SPRINGING FROM POWER TO ALLOW INTERSTATE
SERVICE, FIX RATES, AND CONTROL ABANDONMENT WOULD ESTABLISH WIDE
CONTROL BY THE FEDERAL POWER COMMISSION OVER THE PRODUCTION AND
GATHERING OF GAS.  IT WOULD INVITE EXPANSION OF POWER INTO OTHER PHASES
OF THE FORBIDDEN AREA.  FN14  IT WOULD BE AN ASSUMPTION OF POWERS
SPECIFICALLY DENIED THE COMMISSION BY THE WORDS OF THE ACT AS EXPLAINED
IN THE REPORT AND ON THE FLOOR OF BOTH HOUSES OF CONGRESS.  FN15 THE
LEGISLATIVE HISTORY OF THIS ACT IS REPLETE WITH EVIDENCE OF THE CARE
TAKEN BY CONGRESS TO KEEP THE POWER OVER THE PRODUCTION AND GATHERING
OF GAS WITHIN THE STATES.  FN16  THIS PROBABLY OCCURRED BECAUSE THE
STATE LEGISLATURES, IN THE INTERESTS OF CONSERVATION, HAD DELEGATED
BROAD AND ELABORATE POWER TO THEIR REGULATORY BODIES OVER ALL ASPECTS
OF PRODUCING GAS.  FN17  THE NATURAL GAS ACT WAS DESIGNED TO SUPPLEMENT
STATE POWER AND TO PRODUCE A HARMONIOUS AND COMPREHENSIVE REGULATION OF
THE INDUSTRY.  FN18  NEITHER STATE NOR FEDERAL REGULATORY BODY WAS TO
ENCROACH UPON THE JURISDICTION OF THE OTHER.  FN19  CONGRESS ENACTED
THIS ACT AFTER FULL CONSIDERATION OF THE PROBLEMS OF PRODUCTION AND
DISTRIBUTION.  IT CONSIDERED THE STATE INTERESTS AS WELL AS THE
NATIONAL INTEREST.  IT HAD BOTH PRODUCERS AND CONSUMERS IN MIND. 
LEGISLATIVE ADJUSTMENTS WERE MADE TO RECONCILE THE CONFLICTING VIEWS. 

THE DISTRICT COURT FOUND AS A FACT, AND THE FINDING IS UNDISPUTED BY
THE COMMISSION, THAT, "IT HAS BEEN THE PRACTICE IN THE NATURAL GAS
INDUSTRY FOR COMPANIES TO TRADE FREELY IN GAS LEASES, AND THE
COMMISSION HAS NEVER HERETOFORE ASSERTED THE RIGHT TO REGULATE
TRANSFERS OF SUCH LEASES."  THUS FOR OVER TEN YEARS THE COMMISSION HAS
NEVER CLAIMED THE RIGHT TO REGULATE DEALINGS IN GAS ACREAGE.  FAILURE
TO USE SUCH AN IMPORTANT POWER FOR SO LONG A TIME INDICATES TO US THAT
THE COMMISSION DID NOT BELIEVE THE POWER EXISTED.  FN20  IN THE LIGHT
OF THAT HISTORY WE SHOULD NOT BY AN EXTRAVAGANT, EVEN IF ABSTRACTLY
POSSIBLE, MODE OF INTERPRETATION PUSH POWERS GRANTED OVER
TRANSPORTATION AND RATES SO AS TO INCLUDE PRODUCTION.  IF POSSIBLE, ALL
WHOLE.  FN21  WE CANNOT ATTRIBUTE TO CONGRESS THE INTENT TO GRANT SUCH
FAR-REACHING POWERS AS IMPLICIT IN THE ACT WHEN THAT BODY HAS
ENDEAVORED TO BE PRECISE AND EXPLICIT IN DEFINING THE LIMITS TO THE
EXERCISE OF FEDERAL POWER.  FN22 

THE COMMISSION SOUGHT BY INJUNCTION TO ENFORCE ITS ORDER HALTING THE
TRANSACTION BETWEEN PANHANDLE AND HUGOTON PENDING THE OUTCOME OF ITS
INVESTIGATION.  THE COMMISSION ARGUES THAT, AT ANY RATE, THE TRANSFER
SHOULD BE ENJOINED UNTIL IT CAN DETERMINE ITS OWN POWER AND THE
NECESSITY OF USING IT.  INJUNCTIVE AID WAS REQUESTED UNDER SEC. 20(A)
FN23 OF THE ACT AND THE GENERAL EQUITY POWER OF THE DISTRICT COURT.  TO
BE ENTITLED TO JUDICIAL ASSISTANCE, HOWEVER, THE ORDER ISSUED BY THE
COMMISSION MUST BE VALID AND BASED ON A STATUTORY GRANT OF POWER TO THE
COMMISSION.  AS WE HAVE HELD ABOVE THAT THE TRANSFER OF UNDEVELOPED GAS
LEASES IS AN ACTIVITY RELATED TO THE PRODUCTION AND GATHERING OF
NATURAL GAS AND BEYOND THE COVERAGE OF THE ACT, THE AUTHORITY OF THE
COMMISSION CANNOT REACH THE SALES.  A PROPOSED TRANSFER CANNOT BE
STOPPED BY THE COMMISSION.  IT SHOULD NOT BE PERMITTED TO DELAY WHAT IT
CANNOT PREVENT.  FN24  IF THE COMMISSION IS OF THE OPINION THAT IT
SHOULD HAVE POWER TO CONTROL THE DISPOSITION OF LEASES BY NATURAL-GAS
COMPANIES, IT IS AUTHORIZED TO CALL THE ATTENTION OF CONGRESS TO THAT
FACT.  FN25 

THE JUDGMENT OF THE COURT OF APPEALS IS ACCORDINGLY AFFIRMED. 

FN1  PORTER V. WARNER CO., 328 U.S. 395, 398; YAKUS V. UNITED STATES,
321 U.S. 414, 440; HECHT CO. V. BOWLES, 321 U.S. 321, 331; VIRGINIAN R.
CO. V. SYSTEM FEDERATION, 300 U.S. 515, 552; HARRISONVILLE V. DICKEY
CLAY CO., 289 U.S. 334, 338. 

FN2  THE LEGISLATIVE HISTORY HAS BEEN DISCUSSED BY OUR PRIOR OPINIONS
IN PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMM'N OF INDIANA,
332 U.S. 507, 514-521; INTERSTATE NATURAL GAS CO. V. FEDERAL POWER
COMM'N, 331 U.S. 682, 689-690; COLORADO INTERSTATE GAS CO. V. FEDERAL
POWER COMM'N, 324 U.S. 581, 601-603; FEDERAL POWER COMM'N V. HOPE
NATURAL GAS CO., 320 U.S. 591, 609-613; ILLINOIS NATURAL GAS CO. V.
CENTRAL ILLINOIS PUB. SERV. CO., 314 U.S. 498, 506-508. 

FN3  SEE H.R. REP. NO. 2651, 74TH CONG., 2D SESS., PP. 1-3; H.R. REP.
NO. 709, 75TH CONG., 1ST SESS., PP. 1-4; S. REP. NO. 1162, 75TH CONG.,
1ST SESS., PP. 1-3. 

FN4  SEE PUBLIC UTILITIES COMM'N V. UNITED FUEL GAS CO., 317 U.S.
456, 467; PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMM'N, 332
U.S. 507, 517-518. 

FN5  THE HOUSE REPORT ON THE ACT, AFTER QUOTING THE EXEMPTION
PROVISIONS OF SEC. 1(B), SAYS: "THE QUOTED WORDS ARE NOT ACTUALLY
NECESSARY, AS THE MATTERS SPECIFIED THEREIN COULD NOT BE SAID FAIRLY TO
BE COVERED BY THE LANGUAGE AFFIRMATIVELY STATING THE JURISDICTION OF
THE COMMISSION, BUT SIMILAR LANGUAGE WAS IN PREVIOUS BILLS, AND, RATHER
THAN INVITE THE CONTENTION, HOWEVER UNFOUNDED, THAT THE ELIMINATION OF
THE NEGATIVE LANGUAGE WOULD BROADEN THE SCOPE OF THE ACT, THE COMMITTEE
HAS INCLUDED IT IN THIS BILL."  H.R. REP. NO. 709, 75TH CONG., 1ST
SESS., P. 3. 

FN6 ACTUALLY, IN THE WORDS OF THE HOUSE REPORT, "THAT PART OF THE
NEGATIVE DECLARATION STATING THAT THE ACT SHALL NOT APPLY TO 'THE LOCAL
DISTRIBUTION OF NATURAL GAS' IS SURPLUSAGE BY REASON OF THE FACT THAT
DISTRIBUTION IS MADE ONLY TO CONSUMERS IN CONNECTION WITH SALES, AND
SINCE NO JURISDICTION IS GIVEN TO THE COMMISSION TO REGULATE SALES TO
CONSUMERS THE COMMISSION WOULD HAVE NO AUTHORITY OVER DISTRIBUTION,
WHETHER OR NOT LOCAL IN CHARACTER."  H.R. REP. NO. 709, 75TH CONG., 1ST
SESS., P. 3. 

FN7  IN A BRIEF PREPARED BY THE SOLICITOR OF THE FEDERAL POWER
COMMISSION FOR THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
ON THE CONSTITUTIONALITY OF H.R. 11662, AN EARLIER BILL SUBSTANTIALLY
SIMILAR TO THE NATURAL GAS ACT, THE FOLLOWING APPEARS AS PART OF THE
ANALYSIS OF THE BILL:  "THE BILL MAKES NO ATTEMPT TO REGULATE THE
PRODUCTION OR GATHERING FACILITIES OF A NATURAL-GAS COMPANY, THIS
FUNCTION BEING PURELY LOCAL IN CHARACTER, NOR IS ANY ATTEMPT MADE TO
EXERCISE CONTROL OVER DISTRIBUTION FACILITIES."  HEARINGS BEFORE A
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
ON H.R. 11662, 74TH CONG., 2D SESS., P. 17. 

THE SOLICITOR OF THE FEDERAL POWER COMMISSION IN TESTIFYING AT THE
SAME HEARING ALSO ANSWERED THE FOLLOWING QUESTION: 

"MR. COLE (MEMBER OF COMMITTEE).  DOES THIS BILL GIVE ANYWHERE THE
COMMISSION POWER OVER THE SOURCE OF NATURAL GAS IN THE DIFFERENT FIELDS
IN A MANNER WHICH WE MIGHT CALL COMPARABLE TO THAT WHICH YOUR
COMMISSION NOW HAS OVER HYDROELECTRIC GENERATING PLANTS? 

"MR. DEVANE (SOLICITOR OF THE F.P.C.).  IT DOES NOT; NO. IT DOES NOT
ATTEMPT TO REGULATE THE GATHERING RATES OR THE GATHERING BUSINESS. 

FN8  "(B)  THE COMMISSION MAY, AFTER HEARING, DETERMINE THE ADEQUACY
OR INADEQUACY OF THE GAS RESERVES HELD OR CONTROLLED BY ANY NATURAL-GAS
COMPANY, OR BY ANYONE ON ITS BEHALF, INCLUDING ITS OWNED OR LEASED
PROPERTIES OR ROYALTY CONTRACTS; AND MAY ALSO, AFTER HEARING, DETERMINE
THE PROPRIETY AND REASONABLENESS OF THE INCLUSION IN OPERATING
EXPENSES, CAPITAL, OR SURPLUS OF ALL DELAY RENTALS OR OTHER FORMS OF
RENTAL OR COMPENSATION FOR UNOPERATED LANDS AND LEASES.  FOR THE
PURPOSE OF SUCH DETERMINATIONS, THE COMMISSION MAY REQUIRE ANY NATURAL
GAS COMPANY TO FILE WITH THE COMMISSION TRUE COPIES OF ALL ITS LEASE
AND ROYALTY AGREEMENTS WITH RESPECT TO SUCH GAS RESERVES." 

SEE H.R. REP. NO. 709, 75TH CONG., 1ST SESS., P. 7. 

FN9  COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMM'N, 324 U.S.
581, 603; FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591,
610, 612. 

FN10  5 F.P.C. 544, 546, 949, 952; F.P.C. DOCKET G-876, ORDER OF JUNE
10, 1948. 

FN11  COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMM'N, 324 U.S.
581, 598. 

FN12  "SEC.  16.  THE COMMISSION SHALL HAVE POWER TO PERFORM ANY AND
ALL ACTS, AND TO PRESCRIBE, ISSUE, MAKE, AMEND, AND RESCIND SUCH
ORDERS, RULES, AND REGULATIONS AS IT MAY FIND NECESSARY OR APPROPRIATE
TO CARRY OUT THE PROVISIONS OF THIS ACT.  ...  " 

FN13  "(B)  NO NATURAL-GAS COMPANY SHALL ABANDON ALL OR ANY PORTION
OF ITS FACILITIES SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR ANY
SERVICE RENDERED BY MEANS OF SUCH FACILITIES, WITHOUT THE PERMISSION
AND APPROVAL OF THE COMMISSION FIRST HAD AND OBTAINED, AFTER DUE
HEARING, AND A FINDING BY THE COMMISSION THAT THE AVAILABLE SUPPLY OF
NATURAL GAS IS DEPLETED TO THE EXTENT THAT THE CONTINUANCE OF SERVICE
IS UNWARRANTED, OR THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE OR
NECESSITY PERMIT SUCH ABANDONMENT." 

FN14  WOULD IT SOON BE CONTENDED THAT STATUTORY POWER TO REQUIRE
EXTENSION OF SERVICE, SEC. 7(A), INCLUDED POWER TO REQUIRE EXPLORATION
OR ACQUISITION OF LEASES OR ALLOCATION OF PRODUCTION TO INTERSTATE PIPE
LINES IN ORDER TO SERVE THE PUBLIC INTEREST? 

FN15  THE REPORT OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.R. 6586, 75TH CONG., 1ST SESS., WHICH BECAME THE NATURAL
GAS ACT, WAS ADOPTED WITHOUT CHANGE BY THE SENATE COMMITTEE ON
INTERSTATE COMMERCE AS ITS REPORT ON THE SAME BILL.  SEE NOTE 3, SUPRA.
THE FOLLOWING EXCERPTS ARE TAKEN FROM THE REPORT AS PARTICULARLY
PERTINENT: 

"THE BILL IS SUBSTANTIALLY IDENTICAL WITH H.R. 12680 WHICH, AS
AMENDED, WAS REPORTED BY THE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE OF THE SEVENTY-FOURTH CONGRESS, SECOND SESSION, WITH A
RECOMMENDATION THAT IT PASS.  IF ENACTED, THE PRESENT BILL WOULD FOR
THE FIRST TIME PROVIDE FOR THE REGULATION OF NATURAL-GAS COMPANIES
TRANSPORTING AND SELLING NATURAL GAS IN INTERSTATE COMMERCE.  IT
CONFERS JURISDICTION UPON THE FEDERAL POWER COMMISSION OVER THE
TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE, AND THE SALE IN
INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC
CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE. 
THE STATES HAVE, OF COURSE, FOR MANY YEARS REGULATED SALES OF NATURAL
GAS TO CONSUMERS IN INTRASTATE TRANSACTIONS.  THE STATES HAVE ALSO BEEN
ABLE TO REGULATE SALES TO CONSUMERS EVEN THOUGH SUCH SALES ARE IN
INTERSTATE COMMERCE, SUCH SALES BEING CONSIDERED LOCAL IN CHARACTER AND
IN THE ABSENCE OF CONGRESSIONAL PROHIBITION SUBJECT TO STATE
REGULATION.  (SEE PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMMISSION
(1920), 252 U.S. 23.)  THERE IS NO INTENTION IN ENACTING THE PRESENT
LEGISLATION TO DISTURB THE STATES IN THEIR EXERCISE OF SUCH
JURISDICTION.  HOWEVER, IN THE CASE OF SALES FOR RESALE, OR SO-CALLED
WHOLESALE SALES, IN INTERSTATE COMMERCE (FOR EXAMPLE, SALES BY
PRODUCING COMPANIES TO DISTRIBUTING COMPANIES) THE LEGAL SITUATION IS
DIFFERENT.  SUCH TRANSACTIONS HAVE BEEN CONSIDERED TO BE NOT LOCAL IN
CHARACTER AND, EVEN IN THE ABSENCE OF CONGRESSIONAL ACTION, NOT SUBJECT
TO STATE REGULATION.  (SEE MISSOURI V. KANSAS GAS CO. (1924), 265 U.S.
298, AND PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM & ELECTRIC CO.
(1927), 273 U.S. 83.)  THE BASIC PURPOSE OF THE PRESENT LEGISLATION IS
TO OCCUPY THIS FIELD IN WHICH THE SUPREME COURT HAS HELD THAT THE
STATES MAY NOT ACT. 

.         .         .         .         . 

"  ...  THE BILL TAKES NO AUTHORITY FROM STATE COMMISSIONS, AND IS SO
DRAWN AS TO COMPLEMENT AND IN NO MANNER USURP STATE REGULATORY
AUTHORITY, AND CONTAINS PROVISIONS FOR COOPERATIVE ACTION WITH STATE
REGULATORY BODIES.  ... 

     .         .         .         .         . 

"YOUR COMMITTEE BELIEVES THAT THIS LEGISLATION IS HIGHLY DESIRABLE TO
FILL THE GAP IN REGULATION THAT NOW EXISTS BY REASON OF THE LACK OF
AUTHORITY OF THE STATE COMMISSIONS."  H.R. REP. NO. 709, 75TH CONG.,
1ST SESS., PP. 1-3. 

DURING THE DEBATE ON THE BILL IN THE HOUSE, ITS SPONSOR, CHAIRMAN LEA
OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, MADE THE FOLLOWING
EXPLANATORY STATEMENTS:    "THE PRIMARY PURPOSE OF THE PENDING BILL IS
TO PROVIDE FEDERAL REGULATION, IN THOSE CASES WHERE THE STATE
COMMISSIONS LACK AUTHORITY, UNDER THE INTERSTATE-COMMERCE LAW.  THIS
BILL TAKES NOTHING FROM THE STATE COMMISSIONS; THEY RETAIN ALL THE
STATE POWER THEY HAVE AT THE PRESENT TIME.  THIS BILL WOULD APPLY TO
THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE AND TO THE
SALE OF NATURAL GAS IN INTERSTATE COMMERCE FOR RESALE OR PUBLIC
CONSUMPTION. 

     .         .         .         .      . 

"THE BILL DOES NOT APPLY TO THE PRODUCTION AND GATHERING OF GAS."  81
CONG. REC. 6721. 

LIKEWISE ON THE FLOOR OF THE SENATE, CHAIRMAN WHEELER OF THE
COMMITTEE ON INTERSTATE COMMERCE GAVE A SIMILAR INTERPRETATION TO THE
ACT: 

"MR. AUSTIN.  MR. PRESIDENT, MAY I ASK THE SENATOR FROM MONTANA (MR.
WHEELER) A QUESTION CONCERNING THIS BILL?  DOES THE BILL UNDERTAKE TO
REGULATE THE PRODUCTION OF NATURAL GAS, OR DOES IT UNDERTAKE TO
REGULATE THE PRODUCERS OF NATURAL GAS? 

"MR. WHEELER.  IT DOES NOT ATTEMPT TO REGULATE THE PRODUCERS OF
NATURAL GAS OR THE DISTRIBUTORS OF NATURAL GAS; ONLY THOSE WHO SELL IT
WHOLESALE IN INTERSTATE COMMERCE.  ... 

"MR. AUSTIN.  MR. PRESIDENT, WILL THE SENATOR YIELD FOR ONE OTHER
INQUIRY? 

"MR. WHEELER.  YES. 

"MR. AUSTIN.  IS THE BILL LIMITED IN ITS SCOPE TO THE REGULATION OF
TRANSPORTATION? 

"MR. WHEELER.  YES; IT IS LIMITED TO TRANSPORTATION IN INTERSTATE
COMMERCE, AND IT AFFECTS ONLY THOSE WHO SELL GAS WHOLESALE. 

     .         .       .         .         . 

"MR. KING.  MR. PRESIDENT, I SHOULD LIKE TO OBTAIN INFORMATION FROM
THE SENATOR AS TO THE IMPLICATIONS THAT ARISE FROM THE BILL, AND WHAT
STATES IT WOULD AFFECT.  AS AN ILLUSTRATION, IF GAS IS PRODUCED IN
WYOMING AND IS TRANSPORTED FOR CONSUMPTION INTO THE SENATOR'S STATE OR
MY STATE, WOULD THE FEDERAL POWER COMMISSION HAVE TO DO WITH SUCH AN
ACTIVITY? 

"MR. WHEELER.  NO; AND LET ME SAY TO THE SENATOR THAT, AS A MATTER OF
FACT, THE BILL DOES NOT INTERFERE WITH THE STATE REGULATION, IN ANY
WAY, SHAPE, OR FORM."  81 CONG. REC. 9312. 

"MR. CONNALLY.  IS IT NOT ALSO TRUE, EVEN THOUGH THE UTILITY
COMMISSIONERS ADVOCATE IT, THAT WHENEVER A FEDERAL AGENCY TAKES OVER AN
ACTIVITY SUCH AS THIS THE STATE AUTHORITIES BEGIN TO SHIFT OR LOSE
THEIR RESPONSIBILITY?  IF WE TURN THIS OVER TO THE INTERSTATE COMMERCE
COMMISSION, ESSENTIALLY WHAT THEY DO WILL BE REFLECTED ALL OVER THE
COUNTRY, BECAUSE THE INTERSTATE RATES WILL BE SUPERIMPOSED ON THE STATE
COMMISSIONS AND THEY MUST NECESSARILY BE GOVERNED BY THEM.  DID NOT
THAT HAPPEN TO THE RAILROADS? 

"MR. WHEELER.  THERE IS NO DOUBT ABOUT THAT, BUT THIS IS AN ENTIRELY
DIFFERENT SITUATION. 

"MR. CONNALLY.  YES; ONE INVOLVES THE RAILROADS AND THE OTHER
INVOLVES GAS. 

"MR. WHEELER.  NO. THERE IS NO ATTEMPT AND CAN BE NO ATTEMPT UNDER
THE PROVISIONS OF THE BILL TO REGULATE ANYTHING IN THE FIELD EXCEPT
WHERE IT IS NOT REGULATED AT THE PRESENT TIME.  IT APPLIES ONLY AS TO
INTERSTATE COMMERCE AND ONLY TO THE WHOLESALE PRICE OF GAS."  81 CONG.
REC. 9313. 

"MR. AUSTIN.  THEN, IT WOULD LEAVE TO THE FUTURE THE RIGHT TO MEET
ANY EFFORT ON THE PART OF THE CENTRAL GOVERNMENT TO ACQUIRE THE NATURAL
RESOURCES OF THE STATE OF MONTANA, OR THE STATE OF VERMONT, OR ANY
OTHER STATE? 

"MR. WHEELER.  OH, YES.  IT DOES NOT TOUCH IT IN ANY WAY, SHAPE, OR
FORM, EXCEPT TO REQUIRE THE FURNISHING OF INFORMATION. 

"MR. AUSTIN.  I HAVE GREAT FEAR OF THESE OCCULT METHODS OF ACQUIRING
THE NATURAL RESOURCES OF OUR SEVERAL STATES."  81 CONG. REC. 9314. 

FN16  WHILE CONGRESS WAS CONSIDERING THE PASSAGE OF THE NATURAL GAS
ACT, A BILL (H.R. 5711 AND S. 1919, 75TH CONG., 1ST SESS.) WAS
INTRODUCED IN BOTH HOUSES OF CONGRESS ON MARCH 17, 1937, WHICH PROVIDED
THAT "THIS ACT SHALL APPLY TO THE PROCUREMENT OF NATURAL GAS FOR THE
PURPOSE OF ITS TRANSMISSION THROUGH PIPE LINES AND ITS SALE, EXCHANGE,
TRANSMISSION, OR DISTRIBUTION IN INTERSTATE COMMERCE  ...  "  THE
JURISDICTION OF THE FEDERAL POWER COMMISSION WAS DEFINED AS FOLLOWS: 

"THE (FEDERAL POWER) COMMISSION SHALL HAVE JURISDICTION OVER ALL
FACILITIES FOR THE PROCUREMENT OF NATURAL GAS FOR ITS TRANSMISSION
THROUGH PIPE LINES AND ITS SALE, OR FOR EXCHANGE, OR DISTRIBUTION IN
INTERSTATE COMMERCE, AND OVER THE TRANSMISSION OF NATURAL GAS IN PIPE
LINES IN INTERSTATE COMMERCE AND OVER THE SALE, OR EXCHANGE OF NATURAL
GAS IN INTERSTATE COMMERCE, AND OVER ALL FACILITIES CONNECTED THEREWITH
AS PARTS OF A SYSTEM OF NATURAL-GAS TRANSMISSION OPERATED IN MORE THAN
ONE STATE." 

THE PROVISIONS OF THIS BILL, HOWEVER, FAILED OF ADOPTION; INSTEAD
CONGRESS ENACTED SEC. 1(B) WITH ITS SPECIFIC EXEMPTIONS FROM THE
COVERAGE OF THE ACT. 

FN17  SEE, FOR EXAMPLE, KANSAS GEN. STAT., SECS. 55-701 TO 55
713(1947 SUPP.); MICH. STAT. ANN., C. 97, SECS. 13.138(1)
13.140(10)(SUPP.  1947); OKLA. STAT. ANN., TIT. 52, C. 3, SECS. 81-247;
TEXAS REV. CIV. STAT., TIT. 102, ART. 6008 ET SEQ. (VERNON, 1925, WITH
SUPP. 1948); LA. GEN. STAT. SECS. 4766-4826.2. 

FN18  PUBLIC UTILITIES COMM'N V. UNITED FUEL GAS CO., 317 U.S. 456,
467. 

FN19  INTERSTATE NATURAL GAS CO. V. FEDERAL POWER COMM'N, 331 U.S.
682, 690. 

FN20  FEDERAL TRADE COMM'N V. BUNTE BROTHERS, 312 U.S. 349, 352;
NORWEGIAN NITROGEN PROD.  CO. V. UNITED STATES, 288 U.S. 294, 315. 

FN21  COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMM'N, 324 U.S.
581, 602. 

FN22  SECTION 5(B) READS: 

"(B)  THE COMMISSION UPON ITS OWN MOTION, OR UPON THE REQUEST OF ANY
STATE COMMISSION, WHENEVER IT CAN DO SO WITHOUT PREJUDICE TO THE
EFFICIENT AND PROPER CONDUCT OF ITS AFFAIRS, MAY INVESTIGATE AND
DETERMINE THE COST OF THE PRODUCTION OR TRANSPORTATION OF NATURAL GAS
BY A NATURAL-GAS COMPANY IN CASES WHERE THE COMMISSION HAS NO AUTHORITY
TO ESTABLISH A RATE GOVERNING THE TRANSPORTATION OR SALE OF SUCH
NATURAL GAS." 

WHEN THE PROVISIONS OF THE BILL WHICH BECAME THE NATURAL GAS ACT WERE
BEING READ FOR AMENDMENT ON THE FLOOR OF THE HOUSE, SEC. 5(B) WAS
AMENDED BY INSERTING THE ITALICIZED WORDS.  MR. BOREN, A MEMBER OF THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, WHO SUBMITTED THIS
AMENDMENT, EXPLAINED THE PURPOSE OF IT AS FOLLOWS: 

"MR. BOREN.  MR. CHAIRMAN, MY AMENDMENT HAS BEEN AGREED TO BY THE
COMMITTEE.  I OFFER THE AMENDMENT IN ORDER TO KEEP THE JURISDICTION OF
THE FEDERAL GOVERNMENT AS CLEARLY DEFINED AS POSSIBLE FROM THE
JURISDICTION OF THE STATE GOVERNMENT IN CASES ARISING UNDER THE
PROVISIONS OF THIS BILL. 

"DURING THE HEARINGS I OFFERED THIS AMENDMENT AND MADE THE FOLLOWING
STATEMENT: 

"MR. CHAIRMAN, I WOULD LIKE TO MAKE THIS OBSERVATION FOR THE RECORD
AND AS A CHALLENGE TO THE PROPONENTS OF THIS BILL:  THAT SUBSECTION B
OF SECTION 5 PROVIDES FOR A GROWTH AND FOR THE EXTENSION OF THE
INFLUENCE OF A FEDERAL BUREAU, OR COMMISSION, IN A REALM WHEREIN THIS
PROPOSAL SUBMITS ON ITS OWN ACKNOWLEDGMENT THAT THE FEDERAL AUTHORITY
AND RESPONSIBILITY DOES NOT RIGHTFULLY EXIST.' 

"MR. CHAIRMAN, THIS AMENDMENT CLARIFIES THE JURISDICTION AS BETWEEN
THE FEDERAL AND STATE GOVERNMENTS, AND ASSURES US THAT THE FEDERAL
GOVERNMENT WILL NOT GO INTO A REALM WHERE THE STATE GOVERNMENT ALREADY
HAS PROPER AUTHORITY TO HANDLE THE PROBLEM. 

"THE COMMITTEE HAS APPROVED THE AMENDMENT, AND I HAVE NOTHING FURTHER
TO SAY."  81 CONG. REC. 6728. 

FN23  "SEC.  20.  (A)  WHENEVER IT SHALL APPEAR TO THE COMMISSION
THAT ANY PERSON IS ENGAGED OR ABOUT TO ENGAGE IN ANY ACTS OR PRACTICES
WHICH CONSTITUTE OR WILL CONSTITUTE A VIOLATION OF THE PROVISIONS OF
THIS ACT, OR OF ANY RULE, REGULATION, OR ORDER THEREUNDER, IT MAY IN
ITS DISCRETION BRING AN ACTION IN THE PROPER DISTRICT COURT OF THE
UNITED STATES, THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA, OR THE UNITED STATES COURTS OF ANY TERRITORY OR OTHER
PLACE SUBJECT TO THE JURISDICTION OF THE UNITED STATES, TO ENJOIN SUCH
ACTS OR PRACTICES AND TO ENFORCE COMPLIANCE WITH THIS ACT OR ANY RULE,
REGULATION, OR ORDER THEREUNDER,  ...  " 

FN24  CF. PUBLIC UTILITIES COMM'N V. UNITED FUEL GAS CO., 317 U.S.
456, 468. 

FN25  IN AN ANALOGOUS SITUATION BEFORE THE INSTITUTION OF THIS
LITIGATION, THERE HAD BEEN UNCERTAINTY OF OPINION IN THE COMMISSION AS
TO THE REACH OF THE ACT TOWARD SALES BY INDEPENDENT PRODUCERS AND
GATHERERS TO NATURAL-GAS COMPANIES FOR TRANSPORTATION IN INTERSTATE
COMMERCE.  SEE REPORTS OF THE FEDERAL POWER COMMISSION ON ITS NATURAL
GAS INVESTIGATION (DOCKET NO. G-580), TRANSMITTED TO CONGRESS ON APRIL
28, 1948.  IN PART IV OF THE REPORT SUBSCRIBED TO BY COMMISSIONERS
SMITH AND WIMBERLY, IT IS CONCLUDED AT PP. 38 AND 40: 

"NO REASONABLE BASIS IS FOUND IN THE ACT OR ITS LEGISLATIVE HISTORY
FOR A CONCLUSION THAT, ALTHOUGH THE 'ACTIVITIES' OF PRODUCTION AND
GATHERING ARE EXEMPT UNDER SECTION 1(B), SALES OF NATURAL GAS WHICH ARE
MADE AT ARM'S LENGTH BY PRODUCERS AND GATHERERS WHO DO NOT THEREAFTER
TRANSPORT IT IN INTERSTATE COMMERCE MAY BE REGULATED.  UNLESS SUCH A
DISTINCTION IS SPECIFICALLY DISCLAIMED, DOUBTS AND UNCERTAINTIES WILL
CONTINUE TO BE FELT AND EXPRESSED REGARDING THE POSSIBLE JURISDICTION
UNDER THE NATURAL GAS ACT OF THOSE WHO ONLY PRODUCE AND GATHER NATURAL
GAS AND THEN SELL IT TO OTHERS TRANSPORTING SUCH GAS IN INTERSTATE
COMMERCE."  PP. 38-39. 

"IN VIEW OF THE PRESENT UNSETTLED STATE OF THIS MATTER, IT IS
DESIRABLE, AS THE COMMISSION HAS HERETOFORE RECOMMENDED, THAT THE
CONGRESS SHOULD ADOPT APPROPRIATE AMENDATORY LEGISLATION TO MAKE IT
CLEAR THAT INDEPENDENT PRODUCERS OR GATHERERS OF NATURAL GAS, AND THEIR
SALES THEREOF TO INTERSTATE PIPE LINES, ARE NOT SUBJECT TO THE
PROVISIONS OF THE NATURAL GAS ACT.  SUCH ACTION WILL CONFIRM WHAT
CLEARLY APPEARS TO HAVE BEEN THE ORIGINAL INTENT OF CONGRESS WHEN IT
ENACTED THE NATURAL GAS ACT IN 1938."  PP. 40-41. 

SEE ALSO THE REPORT SUBSCRIBED TO BY COMMISSIONERS OLDS AND DRAPER,
PP. 12-14. 

CONGRESS IS NOW GIVING CONSIDERATION TO THIS PROBLEM.  SEE H.R. 79,
H.R. 1758, H.R. 982, S. 1498, AND S. 1831, 81ST CONG., 1ST SESS., AND
COMMITTEE HEARINGS THEREON. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING. 

THE COURT'S JUDGMENT AND OPINION IN THIS CASE GO FAR TOWARD SCUTTLING
THE NATURAL GAS ACT.  52 STAT. 821, AS AMENDED, 56 STAT. 83.  IN THAT
ACT CONGRESS DECLARED IT "NECESSARY IN THE PUBLIC INTEREST" FOR THE
FEDERAL GOVERNMENT TO REGULATE NATURAL-GAS COMPANIES ENGAGED IN THE
INTERSTATE TRANSPORTATION AND SALE OF NATURAL GAS.  MANY SECTIONS OF
THE ACT DETAILED THE AUTHORITY GRANTED THE FEDERAL POWER COMMISSION TO
REGULATE SUCH COMPANIES AND IN ADDITION SEC. 16 GRANTED BROAD
CONGRESSIONAL AUTHORITY TO THE COMMISSION "TO PERFORM ANY AND ALL ACTS,
AND TO PRESCRIBE, ISSUE, MAKE, AMEND, AND RESCIND SUCH ORDERS, RULES,
AND REGULATIONS AS  ...  NECESSARY OR APPROPRIATE TO CARRY OUT THE
PROVISIONS" OF THE ACT.  TODAY'S OPINION INTERPRETS THIS ACT AS DENYING
THE COMMISSION ALL AUTHORITY TO PERFORM ANY ACTION OR ISSUE ANY ORDER
TO REGULATE AN INTERSTATE COMPANY'S INTEREST IN NATURAL-GAS
PROPERTIES.  THIS INTERPRETATION DEPRIVES THE COMMISSION OF THE POWER
TO DISCHARGE ITS CONGRESSIONALLY IMPOSED DUTY TO PROTECT THE PUBLIC
INTEREST. 

THE COURT'S STERILIZING INTERPRETATION RESTS ON AN EXCEPTION TO
COMMISSION AUTHORITY APPEARING IN SEC. 1(B) OF THE ACT.  FN1  THAT
EXCEPTION PROVIDES THAT THE ACT SHALL NOT APPLY TO "THE PRODUCTION OR
GATHERING OF NATURAL GAS."  I AGREE WITH THE COURT THAT THIS LANGUAGE
IS "UNAMBIGUOUS" AND THAT THIS COURT SHOULD GIVE THE LANGUAGE ITS
"NATURAL AND CLEAR MEANING."  "PRODUCTION" OF GAS WOULD THUS MEAN THE
ACT OF BRINGING FORTH GAS FROM THE EARTH, AND "GATHERING" WOULD MEAN
THE ACT OF COLLECTING GAS AFTER IT HAS BEEN BROUGHT FORTH.  SUCH ARE
THE "NATURAL AND CLEAR" MEANINGS WE HAD HERETOFORE ATTRIBUTED TO THESE
WORD SYMBOLS.  COLORADO INTERSTATE GAS CO. V. COMM'N, 324 U.S. 581, 597
604; INTERSTATE GAS CO. V. POWER COMM'N, 331 U.S. 682, 689-691.  IT WAS
THE PHYSICAL ACTS INCIDENT TO THE "PRODUCTION AND GATHERING" OF GAS -
LOCAL ACTIVITIES - THAT OUR PRIOR DECISIONS EMPHASIZED CONGRESS
INTENDED TO LEAVE STATES FREE TO REGULATE.  TODAY THE COURT READS THIS
CONGRESSIONALLY GRANTED PRIVILEGE OF STATES TO REGULATE THE ACT OF
"PRODUCTION" AS AN ABSOLUTE BAR TO THE FEDERAL POWER COMMISSION'S
REGULATION OF THE OWNERSHIP OF GAS-RESERVE PROPERTIES.  GAS RESERVES
ARE INDISPENSABLE TO PROPER SERVICE OF INTERSTATE CUSTOMERS OF AN
INTERSTATE NATURAL-GAS COMPANY.  AND IN THUS LIMITING THE COMMISSION'S
JURISDICTION THE COURT LEAVES THE COMMISSION IMPOTENT TO PROTECT THE
PUBLIC'S INTEREST IN HAVING INTERSTATE COMPANIES MAINTAIN ADEQUATE GAS
RESERVES.  THIS DISABLING INTERPRETATION READS THE FEDERAL ACT AS
THOUGH IT CONTEMPLATED "INEFFECTIVE REGULATION," AN INTERPRETATION
DIRECTLY OPPOSED TO THAT WE GAVE THE ACT IN PANHANDLE EASTERN PIPE LINE
CO. V. PUBLIC SERVICE COMM'N, 332 U.S. 507, 520. 

OF CONVENIENCE AND NECESSITY ONLY IF AN INTERSTATE COMPANY IS "ABLE AND
WILLING PROPERLY TO DO THE ACTS AND TO PERFORM THE SERVICE PROPOSED AND
TO CONFORM TO THE PROVISIONS OF THE ACT AND THE REQUIREMENTS, RULES,
AND REGULATIONS OF THE COMMISSION THEREUNDER  ...  "  AS AUTHORIZED BY
SEC. 7(D), THE COMMISSION REQUIRES APPLICANTS FOR CERTIFICATES TO SHOW
"THE GAS RESERVES WHICH ARE TO SUPPLY THE MARKET WHICH IS PROPOSED TO
BE SERVED."  FN2  AND SEC. 7(B) DENIES A COMPANY POWER TO "ABANDON ALL
OR ANY PORTION OF ITS FACILITIES SUBJECT TO THE JURISDICTION OF THE
COMMISSION  ...  "  IF EVIDENCE WERE NEEDED TO SHOW THE IMPORTANCE
CONGRESS ATTRIBUTED TO THE GAS RESERVE FACILITIES OF A COMPANY, THAT
EVIDENCE APPEARS IN SECS. 7(B), 7(C) AND 7(E).  JURISDICTION TO
REGULATE A NATURAL-GAS COMPANY WITHOUT JURISDICTION TO REGULATE ITS GAS
RESERVES WOULD BE LIKE GRANTING JURISDICTION TO REGULATE RAILROADS
WITHOUT POWER TO REGULATE THE TRACKS, ROUTES, RIGHTS-OF-WAY, ETC.  AND
WE HAVE HELD THAT THE COMMISSION HAS JURISDICTION UNDER THE NATURAL GAS
ACT TO CONSIDER THE GAS-PRODUCING PROPERTIES IN FIXING RATES.  COLORADO
INTERSTATE CO. V. FEDERAL POWER COMMISSION, 324 U.S. 581; PANHANDLE CO.
V. POWER COMM'N, 324 U.S. 635, 648-649.    THE RESPONDENT COMPANY HAD
ITS RATE BASE FIXED AND ITS ABILITY TO SERVE THE PUBLIC DETERMINED ON
ITS CLAIM TO OWNERSHIP OF THE VERY GAS RESERVE PROPERTIES THE COURT NOW
PERMITS IT TO SELL TO AN AFFILIATE OVER THE PROTEST OF THE COMMISSION. 
ACCORDING TO ALLEGATIONS IN THE COMMISSION'S COMPLAINT THE RESPONDENT
GAS COMPANY HAS ALREADY RECEIVED FROM ITS CUSTOMERS LARGE SUMS OF MONEY
FROM RATES WHICH REFLECTED EXPENSES INCURRED IN MAINTAINING THESE
RESERVES AND FOR EXPLORATION AND DEVELOPMENT COSTS IN RELATION TO
THEM.  BUT UNDER THE COURT'S HOLDING TODAY, THESE PROPERTIES, INCREASED
IN VALUE BY CONSUMER CONTRIBUTIONS, CAN BE GIVEN AWAY BY THE RESPONDENT
COMPANY TO ITS NEWLY FORMED AFFILIATE.  CONGRESS COULD NOT HAVE
INTENDED TO RENDER THE COMMISSION POWERLESS TO PROTECT GAS RESERVES
NECESSARY TO CONTINUED CONSUMER SERVICE AND PAID FOR BY RATES FIXED TO
ALLOW DEVELOPMENT OF THE RESERVES. 

FURTHERMORE THE RESERVES, COSTING ONLY $160,000, HAVE NOW APPARENTLY
BEEN CAPITALIZED BY THE RESPONDENT'S AFFILIATED "PURCHASER" AT
$10,000,000.  IF THE GAS RESERVES CONTINUE TO BE HELD BY THE RESPONDENT
COMPANY THE RATES WILL BE FIXED ON THE BASIS OF THE ORIGINAL $160,000
COST.  PANHANDLE CO. V. POWER COMM'N, 324 U.S. 635, 648.  IT IS AT
LEAST DOUBTFUL WHETHER AFTER TODAY'S HOLDING THE COMPANY CAN BE
PREVENTED FROM HEREAFTER CHARGING RATES BASED ON THE $10,000,000
INFLATED VALUATION.  THUS THE UNWHOLESOME PRACTICES THAT THE NATURAL
GAS ACT WAS PRIMARILY DESIGNED TO PREVENT ARE GIVEN A NEW LEASE ON
LIFE.  FOR A PURPOSE OF THE ACT WAS TO PROTECT CONSUMERS AND ONE OF THE
EVILS IT WAS AIMED TO PREVENT WAS THE HOLDING COMPANY TECHNIQUE OF
TRANSFERS AND RETRANSFERS BETWEEN PARENT CORPORATIONS, THEIR OFFSPRINGS
AND AFFILIATES.  FEDERAL POWER COMM'N V. HOPE GAS CO., 320 U.S. 591,
610. 

IT SEEMS INCONCEIVABLE THAT CONGRESS WOULD HAVE PASSED AN ACT TO
REGULATE NATURAL-GAS COMPANIES WITH A WHOLLY NEUTRALIZING EXCEPTION TO
BAR REGULATION OF THE GAS RESERVES UPON WHICH THE WHOLE GAS BUSINESS
DEPENDED.  I CANNOT ATTRIBUTE SUCH A MEANINGLESS AND DECEPTIVE ACTION
TO THE CONGRESS.  WHILE THE ACT ITSELF GRANTS BROAD COMMISSION POWERS
EFFECTIVELY TO REGULATE GAS COMPANIES, THE COURT'S INTERPRETATION
DEPRIVES THE COMMISSION OF POWER ESSENTIAL TO FIXING FAIR RATES AND TO
PROTECTING CONTINUED SERVICES DURING THE LIFE OF A COMPANY'S GAS
RESERVES. 

TODAY'S OPINION REGARDS CONGRESS' ACTION LIKE THAT OF A PARENT WHO
ORDERED HIS OFFSPRING TO GO SWIMMING WITH A STERN ADMONITION NOT TO GO
NEAR THE WATER. 

I WOULD REVERSE. 

FN1  TODAY'S OPINION ALSO RELIES ON A "FINDING OF FACT" BY THE
DISTRICT COURT THAT THE COMMISSION HAD NEVER HERETOFORE "ASSERTED THE
RIGHT TO REGULATE TRANSFERS OF SUCH LEASES."  THE MAJORITY OPINION
VIEWS THIS "FINDING" AS AN EVIDENCE THAT FOR TEN YEARS "THE COMMISSION
DID NOT BELIEVE THE POWER EXISTED."  BUT THIS "FINDING" OF FACT RESTS
ONLY ON AFFIDAVITS OFFERED IN RESPECT TO A MOTION FOR A PRELIMINARY
INJUNCTION AND SHOULD NOT BE UTILIZED AS A PROP TO SUPPORT THE COURT'S
INTERPRETATION OF THE ACT.  MOREOVER, THE COMMISSION POINTS OUT THAT
UNTIL THE PRESENT TIME NO SUCH TRADING AS IS INVOLVED HERE HAD TAKEN
PLACE.  THE COMMISSION STATES IN ITS BRIEF THAT THE FINDING OF FACT
"DOES NOT REFLECT THE FULL PICTURE.  UNTIL THIS TIME, SUCH TRADING HAS
TAKEN PLACE WITH THE VIEW OF BLOCKING IN RESERVES AND IMPROVING
SERVICE, AND SO FAR AS THE COMMISSION IS PRESENTLY AWARE, NOT TO
ACHIEVE RESULTS WHICH WOULD DEROGATE FROM THE COMMISSION'S
JURISDICTION." 

FN2  SEC. 57.5(F) OF THE COMMISSION'S ORDER NO. 99(7 FED. REG.
6844). 
..END :











AERONAUTICAL LODGE V. CAMPBELL, 337 U.S. 521 


NO. 333.  ARGUED JANUARY 31, 1949.  - DECIDED JUNE 20, 1949.  - 169 F.2D
252, REVERSED. 


AFTER HIS DISCHARGE FROM MILITARY SERVICE IN WORLD WAR II, A VETERAN
WAS REEMPLOYED BY HIS FORMER PRIVATE EMPLOYER, IN ACCORDANCE WITH SEC.
8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.  DURING HIS
MILITARY SERVICE, THE COLLECTIVE BARGAINING AGREEMENT BETWEEN HIS UNION
AND THE EMPLOYER HAD BEEN MODIFIED SO AS TO GIVE UNION CHAIRMEN TOP
SENIORITY IN THE EVENT OF LAYOFFS.  WITHIN ONE YEAR AFTER HIS
REEMPLOYMENT, THE VETERAN WAS LAID OFF TEMPORARILY, ALTHOUGH UNION
CHAIRMEN WHO HAD LESS TIME WITH THE COMPANY WERE RETAINED.  THE
EMPLOYER REFUSED TO COMPENSATE THE VETERAN FOR THE PERIOD OF THE
LAYOFF.  HELD:  THE VETERAN'S RIGHTS UNDER SEC. 8 OF THE ACT WERE NOT
INFRINGED.  PP. 522-529. 

AERONAUTICAL INDUSTRIAL DISTRICT LODGE 727 V. CAMPBELL ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

THERE VETERANS SUED FOR COMPENSATION FOR THE PERIOD OF A LAYOFF,
ALLEGED TO HAVE BEEN IN VIOLATION OF THEIR RIGHTS UNDER THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940.  THE DISTRICT COURT GAVE JUDGMENT FOR
THE VETERANS.  A LABOR UNION, WHICH HAD BEEN ALLOWED TO INTERVENE TO
PROTECT ITS LABOR CONTRACT, APPEALED TO THE COURT OF APPEALS, WHICH
AFFIRMED THE JUDGMENT.  169 F.2D 252.  THIS COURT GRANTED CERTIORARI. 
335 U.S. 869.  REVERSED, P. 529. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THIS CASE HERE, 335 U.S. 869, TO RESOLVE A CONFLICT OF
VIEWS BETWEEN TWO COURTS OF APPEALS IN THEIR INTERPRETATION OF THE
RIGHTS GIVEN TO VETERANS OF WORLD WAR II BY SEC. 8 OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, AS AMENDED, 54 STAT. 885, 890, 58
STAT. 798, 50 U.S.C. APP. SEC. 308.  THREE VETERANS BROUGHT THIS SUIT
FOR COMPENSATION FOR THE PERIOD OF A LAYOFF WHILE EMPLOYED AT LOCKHEED
AIRCRAFT CORPORATION, A RESPONDENT HERE.  THE FACTS CONTROLLING THE
LEGAL CLAIMS OF ALL THREE MAY BE REPRESENTED BY THE CIRCUMSTANCES
ATTENDING KIRK'S EMPLOYMENT AND LAYOFF.  FN1 

THE PETITIONER, AERONAUTICAL INDUSTRIAL DISTRICT LODGE NO. 727, WAS
THE DULY RECOGNIZED COLLECTIVE BARGAINING AGENT OF THE EMPLOYEES AT
LOCKHEED AIRCRAFT CORPORATION.  IN SEPTEMBER, 1941, THE UNION HAD
NEGOTIATED AN AGREEMENT WITH LOCKHEED COVERING THE RANGE OF SUBJECTS
TOUCHING CONDITIONS OF EMPLOYMENT TYPICAL OF SUCH AGREEMENTS IN THE
AIRCRAFT INDUSTRY.  THIS AGREEMENT WAS IN EFFECT WHEN KIRK WAS EMPLOYED
IN AUGUST, 1942, BY VEGA AIRCRAFT CORPORATION, WHICH AFTERWARDS WAS
MERGED WITH LOCKHEED.  HE JOINED THE UNION AND HAS REMAINED A MEMBER
THROUGHOUT THIS CONTROVERSY.  HE LEFT LOCKHEED TWO YEARS LATER TO ENTER
THE ARMY, FROM WHICH HE WAS HONORABLY DISCHARGED IN JANUARY, 1946, AND
WAS RESTORED TO HIS JOB AT LOCKHEED IN ACCORDANCE WITH SEC. 8(A) OF THE
SELECTIVE SERVICE ACT.  54 STAT. 885, 890, AS AMENDED, 50 U.S.C. APP.
SEC. 308(A).  WHILE KIRK WAS IN MILITARY SERVICE HIS UNION MADE A NEW
AGREEMENT WITH LOCKHEED MODIFYING THE TERMS OF THE 1941 AGREEMENT IN
VARIOUS PARTICULARS.  CRUCIAL TO THE ISSUE HERE WAS A CHANGE IN THE
SENIORITY PROVISIONS OF THE FORMER AGREEMENT.  THE CHANGE PROVIDED THAT
"UNION CHAIRMEN WHO HAVE ACQUIRED SENIORITY SHALL BE DEEMED TO HAVE TOP
SENIORITY SO LONG AS THEY REMAIN CHAIRMEN."  FN2 IN PLAIN ENGLISH THIS
MEANS THAT THEREAFTER EMPLOYEES WHO SERVED AS UNION CHAIRMEN WERE
ENTITLED TO BE RETAINED IN CASE OF LAYOFFS REGARDLESS OF THEIR LENGTH
OF SERVICE IN THE PLANT. 

IN THE LATTER PART OF JUNE, 1946, AND WITHIN A YEAR AFTER KIRK'S
REEMPLOYMENT, IT WAS NECESSARY TO LAY OFF EMPLOYEES IN KIRK'S
INDUSTRIAL UNIT.  THESE LAYOFFS FOLLOWED THE CONVENTIONAL SEQUENCE OF
SENIORITY, TIME FOR MILITARY SERVICE BEING DULY CREDITED, WITH THE
EXCEPTION THAT UNION CHAIRMEN WERE RETAINED IN ACCORDANCE WITH THE 1945
AGREEMENT, EVEN THOUGH THEY HAD LESS TIME WITH THE COMPANY THAN THOSE
WHO WERE LAID OFF, VETERANS OR NOT.  KIRK WAS AMONG THOSE LAID OFF, AND
THE RETENTION AS UNION CHAIRMEN OF MEN WHO WERE JUNIOR TO HIM IS THE
BASIS OF HIS CLAIM THAT SEC. 8 OF THE ACT HAD BEEN INFRINGED.  FN3
KIRK WAS BROUGHT BACK TO WORK WITHIN A MONTH, BUT LOCKHEED REFUSED TO
PAY HIM FOR THE TIME HE WAS LAID OFF.  FOR THIS SUM HE BROUGHT THIS
SUIT.  PETITIONER UNION WAS ALLOWED TO INTERVENE IN ORDER TO PROTECT
ITS LABOR CONTRACT.  JUDGMENT WENT FOR KIRK, AND THE UNION ALONE TOOK
THE CASE TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT.  THAT COURT
AFFIRMED THE JUDGMENT,  FN4  169 F.2D 252, HOLDING THAT SEC. 8 OF THE
ACT FORBADE DISREGARD OF LENGTH OF EMPLOYMENT, SO FAR AS VETERANS ARE
AFFECTED, IN ENFORCING PROVISIONS IN A COLLECTIVE AGREEMENT FOR THE
RETENTION OF UNION CHAIRMEN IN THE EVENT OF LAYOFFS, REGARDLESS OF
THEIR LENGTH OF SERVICE.  IN SO HOLDING IT RAN COUNTER TO A SERIES OF
DECISIONS IN THE COURT OF APPEALS FOR THE THIRD CIRCUIT.  GAUWEILER V.
ELASTIC STOP NUT CORP., 162 F.2D 448; KOURY V. ELASTIC STOP NUT CORP.,
162 F.2D 544; DI MAGGIO V. ELASTIC STOP NUT CORP., 162 F.2D 546, AND
PAYNE V. WRIGHT AERONAUTICAL CORP., 162 F.2D 549. 

IT IS OF THE ESSENCE OF COLLECTIVE BARGAINING THAT IT IS A CONTINUOUS
PROCESS.  NEITHER THE CONDITIONS TO WHICH IT ADDRESSES ITSELF NOR THE
BENEFITS TO BE SECURED BY IT REMAIN STATIC.  THEY ARE NOT FROZEN EVEN
BY WAR.  THUS, UNDER THE ACT THE VETERAN ACCUMULATES TIME TOWARD HIS
SENIORITY WHILE IN THE SERVICE; HE ALSO BECOMES THE BENEFICIARY OF
THOSE GAINS THE ACHIEVEMENT OF WHICH IS THE CONSTANT THRUST OF
COLLECTIVE BARGAINING.  IN OTHER WORDS, THE ACT GIVES HIM THE STATUS OF
ONE WHO HAS BEEN "ON FURLOUGH OR LEAVE OF ABSENCE" BUT UNINTERRUPTEDLY
A MEMBER OF THE WORKING FORCE ON WHOSE BEHALF SUCCESSIVE COLLECTIVE
AGREEMENTS ARE MADE.  IN THIS WAY THE ACT PROTECTS THE FURLOUGHED
EMPLOYEE FROM BEING PREJUDICED BY ANY CHANGE IN THE TERMS OF A
COLLECTIVE AGREEMENT BECAUSE HE IS "ON FURLOUGH," BUT HE IS NOT TO BE
FAVORED AS A FURLOUGHED EMPLOYEE AS AGAINST HIS FELLOWS.  THIS IS THE
ESSENCE OF OUR DECISION IN FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP.,
328 U.S. 275. 

IN PROVIDING THAT A VETERAN SHALL BE RESTORED TO THE POSITION HE HAD
BEFORE HE ENTERED THE MILITARY SERVICE "WITHOUT LOSS OF SENIORITY,"
SEC. 8 OF THE ACT USES THE TERM "SENIORITY" WITHOUT DEFINITION.  IT IS
THUS APPARENT THAT CONGRESS WAS NOT CREATING A SYSTEM OF SENIORITY BUT
RECOGNIZING ITS OPERATION AS PART OF THE PROCESS OF COLLECTIVE
BARGAINING.  WE MUST THEREFORE LOOK TO THE CONVENTIONAL USES OF THE
SENIORITY SYSTEM IN THE PROCESS OF COLLECTIVE BARGAINING IN ORDER TO
DETERMINE THE RIGHTS OF SENIORITY WHICH THE SELECTIVE SERVICE ACT
GUARANTEED THE VETERAN. 

BARRING LEGISLATION NOT HERE INVOLVED, SENIORITY RIGHTS DERIVE THEIR
SCOPE AND SIGNIFICANCE FROM UNION CONTRACTS, CONFINED AS THEY ALMOST
EXCLUSIVELY ARE TO UNIONIZED INDUSTRY.  SEE TRAILMOBILE CO. V. WHIRLS,
331 U.S. 40, 53, N. 21.  THERE ARE GREAT VARIATIONS IN THE USE OF THE
SENIORITY PRINCIPLE THROUGH COLLECTIVE BARGAINING BEARING ON THE TIME
WHEN SENIORITY BEGINS, DETERMINATION OF THE UNITS SUBJECT TO THE SAME
SENIORITY, AND THE CONSEQUENCES WHICH FLOW FROM SENIORITY.  ALL THESE
VARIATIONS DISCLOSE LIMITATIONS UPON THE DOGMATIC USE OF THE PRINCIPLE
OF SENIORITY IN THE INTEREST OF THE ULTIMATE AIMS OF COLLECTIVE
BARGAINING.  THUS, PROBATIONARY CONDITIONS MUST OFTEN BE MET BEFORE
SENIORITY BEGINS TO OPERATE; SOMETIMES IT BECOMES RETROACTIVE TO THE
DATE OF EMPLOYMENT; IN OTHER INSTANCES IT IS EFFECTIVE ONLY AS FROM THE
QUALIFYING DATE; IN SOME INDUSTRIES IT IS DETERMINED ON A COMPANY
BASIS, IN OTHERS THE OCCUPATION OR THE PLANT IS TAKEN AS THE UNIT FOR
SENIORITY DETERMINATION; SOMETIMES SPECIAL PROVISIONS ARE MADE FOR
WORKERS IN KEY POSITIONS; AND THEN AGAIN THESE FACTORS ARE FOUND IN
VARYING COMBINATIONS.  SEE WILLIAMSON & HARRIS, TRENDS IN COLLECTIVE
BARGAINING, 100-102(1945); HARBISON, SENIORITY POLICIES AND PROCEDURES
AS DEVELOPED THROUGH COLLECTIVE BARGAINING 1-10(1941). 

TO DRAW FROM THE SELECTIVE SERVICE ACT AN IMPLICATION THAT DATE OF
EMPLOYMENT IS THE INFLEXIBLE BASIS FOR DETERMINING SENIORITY RIGHTS AS
REFLECTED IN LAYOFFS IS TO IGNORE A VAST BODY OF LONG-ESTABLISHED
CONTROLLING PRACTICES IN THE PROCESS OF COLLECTIVE BARGAINING OF WHICH
THE SENIORITY SYSTEM TO WHICH THAT ACT REFERS IS A PART.  ONE OF THE
SAFEGUARDS INSISTED UPON BY UNIONS FOR THE EFFECTIVE FUNCTIONING OF
COLLECTIVE BARGAINING IS CONTINUITY IN OFFICE FOR ITS SHOP STEWARDS OR
UNION CHAIRMEN.  TO THAT END PROVISION IS MADE, AS IT WAS MADE HERE,
AGAINST LAYING THEM OFF MERELY ON THE BASIS OF TEMPORAL SENIORITY. 
BECAUSE THEY ARE UNION CHAIRMEN THEY ARE NOT REGARDED AS MERELY
INDIVIDUAL MEMBERS OF THE UNION; THEY ARE IN A SPECIAL POSITION IN
RELATION TO COLLECTIVE BARGAINING FOR THE BENEFIT OF THE WHOLE UNION. 
TO RETAIN THEM AS SUCH IS NOT AN ENCROACHMENT ON THE SENIORITY SYSTEM
BUT A DUE REGARD OF UNION INTERESTS WHICH EMBRACE THE SYSTEM OF
SENIORITY RIGHTS. 

THESE CONSIDERATIONS ARE DECISIVE OF THE CASE.  THE AGREEMENTS MADE
BY THE UNION WITH LOCKHEED REPRESENT FAMILIAR DEVELOPMENTS IN THE
PROCESS OF COLLECTIVE BARGAINING WHICH THE SELECTIVE SERVICE ACT
PRESUPPOSES AND IN THE CONTEXT OF WHICH IT MUST BE PLACED.  KIRK'S
RIGHTS, INCLUDING SENIORITY, BEFORE HE ENTERED THE SERVICE WERE DERIVED
FROM THE AGREEMENT OF 1941.  SO, LIKEWISE, WERE HIS RIGHTS, INCLUDING
SENIORITY, AS AN EMPLOYEE ON FURLOUGH DEFINED BY THE AGREEMENT OF 1945,
INASMUCH AS THAT AGREEMENT IN NO WISE DISADVANTAGED HIS POSITION
BECAUSE HE WAS IN THE MILITARY SERVICE. 

IN THE ORDINARY AND ORDERLY COURSE OF FORMULATING THE TERMS OF
EMPLOYMENT, THE 1945 AGREEMENT BETWEEN THE UNION AND LOCKHEED IN SOME
DIRECTIONS MODIFIED THE PROVISIONS OF THE 1941 AGREEMENT.  A LABOR
AGREEMENT IS A CODE FOR THE GOVERNMENT OF AN INDUSTRIAL ENTERPRISE AND,
LIKE ALL GOVERNMENT, ULTIMATELY DEPENDS FOR ITS EFFECTIVENESS ON THE
QUALITY OF ENFORCEMENT OF ITS CODE.  BECAUSE A LABOR AGREEMENT ASSUMES
THE PROPER ADJUSTMENT OF GRIEVANCES AT THEIR SOURCE, THE UNION CHAIRMEN
PLAY A VERY IMPORTANT ROLE IN THE WHOLE PROCESS OF COLLECTIVE
BARGAINING.  THEREFORE IT IS DEEMED HIGHLY DESIRABLE THAT UNION
CHAIRMEN HAVE THE AUTHORITY AND SKILL WHICH ARE DERIVED FROM CONTINUITY
IN OFFICE.  A PROVISION FOR THE RETENTION OF UNION CHAIRMEN BEYOND THE
ROUTINE REQUIREMENTS OF SENIORITY IS NOT AT ALL UNCOMMON AND SURELY
OUGHT NOT TO BE DEEMED ARBITRARY OR DISCRIMINATORY.  FN5  THE FACT THAT
IT MAY INVOLVE, AS IN KIRK'S CASE, THE TEMPORARY LAYOFF OF A VETERAN
WHILE A NONVETERAN CHAIRMAN WITH LESS TIME AT THE PLANT IS RETAINED, IS
WHOLLY UNRELATED TO THE VETERAN'S ABSENCE IN THE SERVICE.  UNDER THE
1945 AGREEMENT CHAIRMEN WERE TO BE ELECTED ONCE A YEAR, AND UNLESS THE
ELECTION OCCURRED ON THE DAY BEFORE A VETERAN RETURNED TO THE PLANT,
HIS CHANCE OF ELECTION WOULD BE THE SAME AS THAT OF PERSONS WHO HAD
BEEN CONTINUOUSLY AT WORK IN THE PLANT. 

OF COURSE, THE SELECTIVE SERVICE ACT RESTRICTS A READJUSTMENT OF
SENIORITY RIGHTS DURING THE VETERAN'S ABSENCE TO THE DISADVANTAGE OF
THE VETERAN.  BUT IT WOULD BE AN UNDUE RESTRICTION OF THE PROCESS OF
COLLECTIVE BARGAINING (WITHOUT COMPENSATING GAIN TO THE VETERAN) TO
FORBID CHANGES IN COLLECTIVE BARGAINING ARRANGEMENTS WHICH SECURE A
FIXED TENURE FOR UNION CHAIRMEN, WHEREBY VETERANS AS WELL AS
NONVETERANS ARE BENEFITED BY PROMOTING GREATER PROTECTION OF THEIR
RIGHTS AND SMOOTHER OPERATION OF LABOR-MANAGEMENT RELATIONS. 

ALL THIS PRESUPPOSES, OBVIOUSLY, THAT AN AGREEMENT CONTAINING THE
1945 PROVISIONS EXPRESSES HONEST DESIRES FOR THE PROTECTION OF THE
INTERESTS OF ALL MEMBERS OF THE UNION AND IS NOT A SKILLFUL DEVICE OF
HOSTILITY TO VETERANS.  THERE IS NOT THE REMOTEST SUGGESTION THAT THE
1945 AGREEMENT WAS OTHER THAN WHAT IT PURPORTED TO BE - THE MEANS FOR
SECURING BOTH TO VETERANS AND TO NONVETERANS BETTER WORKING CONDITIONS
THROUGH ELECTED LEADERS NOT SUBJECT TO THE CONTINGENCIES OF A LABOR
TURNOVER.  REVERSED. 

FN1  ONE OF THE THREE VETERANS, JAMES L. CAMPBELL, WITHDREW FROM THE
UNION ON THE FIRST DAY OF MARCH, 1946, BUT THIS DID NOT AFFECT HIS
STATUS AS AN EMPLOYEE WITH THE COMPANY.  THERE IS NO CONTENTION THAT
HIS WITHDRAWAL FROM THE UNION AFFECTS IN ANY MANNER HIS RIGHTS UNDER
SEC. 8 OF THE ACT, OR THAT WITHDRAWAL FROM THE UNION SHOULD CAUSE A
DIFFERENT RESULT. 

FN2  THE COLLECTIVE BARGAINING AGREEMENT SIGNED IN 1941, SO FAR AS
SENIORITY WAS CONCERNED, PROVIDED: 

"IN CASE OF A SLACK IN PRODUCTION, LAYOFFS ARE TO BE MADE PRIMARILY ON
THE BASIS OF THE PRINCIPLE OF SENIORITY.  DUE CONSIDERATION WILL BE
GIVEN, HOWEVER, TO (A) KNOWLEDGE, TRAINING, ABILITY, SKILL AND
EFFICIENCY, AND (B) DEPORTMENT RECORD AND OTHER FACTORS.  IF IT BECOMES
NECESSARY TO REDUCE THE WORKING FORCE IN ANY PLANT OR DEPARTMENT, A
PLAN OF LAYOFF PROCEDURE WILL BE PREPARED BY THE MANAGEMENT AND
SUBMITTED TO THE UNION FOR APPROVAL.  IF SUCH PLAN IS NOT ACCEPTABLE TO
THE UNION THE COMPANY AGREES TO ENTER NEGOTIATIONS WITH THE UNION AND
TO ATTEMPT TO ARRIVE AT A MUTUALLY AGREEABLE PLAN.  IF, HOWEVER, AT THE
END OF ONE WORKING WEEK FROM THE DATE THE COMPANY SUBMITTED ITS
ORIGINAL PLAN OF LAYOFF PROCEDURE TO THE UNION NO NEW PLAN HAS BEEN
MUTUALLY AGREED TO, THE COMPANY MAY PROCEED ACCORDING TO ITS PROPOSED
PLAN OF LAYOFF SUBJECT TO ARTICLE II, SECTION 6."  1941 AGREEMENT, ART.
III, SEC. 5. 

THE LATER AGREEMENT PROVIDED: 

"(A)  GENERAL LAYOFF PROCEDURE.  LAYOFFS SHALL BE MADE IN ORDER OF
COMPANY-WIDE SENIORITY APPLIED BY OCCUPATION WHERE ABILITY, SKILL AND
EFFICIENCY ARE SUBSTANTIALLY EQUAL.  HOWEVER, IN THE CASE OF EMPLOYEES
WITH FOUR YEARS' OR MORE SENIORITY, THE COMPANY MAY, IN ITS DISCRETION,
RETAIN THEM IN ORDER OF THEIR COMPANY-WIDE SENIORITY, REGARDLESS OF
OCCUPATION, WHERE ABILITY, SKILL AND EFFICIENCY ARE SUBSTANTIALLY
EQUAL.  ANY CLAIM OF UNJUST DISCRIMINATION IN THE EXERCISE OF SUCH
DISCRETION MAY BE TAKEN UP AS A GRIEVANCE.  EMPLOYEES WHO HAVE NOT
ACQUIRED SENIORITY RIGHTS MAY BE LAID OFF WITHOUT REGARD TO RELATIVE
LENGTH OF SERVICE.           .         .         .         .         . 

"(D)  TOP SENIORITY FOR UNION CHAIRMEN FOR PURPOSE OF LAYOFFS.  FOR
THE PURPOSE OF APPLYING THE TEMPORARY AND GENERAL LAYOFF PROCEDURES,
UNION CHAIRMEN WHO HAVE ACQUIRED SENIORITY SHALL BE DEEMED TO HAVE TOP
SENIORITY SO LONG AS THEY REMAIN CHAIRMEN.  ...  " 1945 AGREEMENT, ART.
IV, SEC. 3(A), (D). 

FN3  THESE ARE THE RELEVANT STATUTORY PROVISIONS: 

"(A)  ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS
ACT FOR TRAINING AND SERVICE, WHO, IN THE JUDGMENT OF THOSE IN
AUTHORITY OVER HIM, SATISFACTORILY COMPLETES HIS PERIOD OF TRAINING AND
SERVICE UNDER SECTION 3(B) SHALL BE ENTITLED TO A CERTIFICATE TO THAT
EFFECT UPON THE COMPLETION OF SUCH PERIOD OF TRAINING AND SERVICE,
WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT
ATTAINED.  ... 

     .         .         .         .   . 

"(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, (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 OR FROM
HOSPITALIZATION CONTINUING AFTER DISCHARGE FOR A PERIOD OF NOT MORE
THAN ONE YEAR - 

   .         .         .         .         . 

"(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; 

     .         .         .         .  . 

"(C)  ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE
CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS
PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO
RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN
INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO
ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR
LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON
WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH
POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION."  54
STAT. 885, 890, AS AMENDED, 50 U.S.C. APP. SEC. 308. 

FN4  LOCKHEED, THE RESPONDENT IN THE DISTRICT COURT, DID NOT APPEAL. 
BUT SINCE THE JUDGMENT WAS NOT MERELY FOR MONEY DAMAGES BUT ALSO
INVOLVED THE CONSTRUCTION OF THE COLLECTIVE AGREEMENT, THE UNION HAD
THE RIGHT TO APPEAL.  FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328
U.S. 275, 281-84. 

FN5  SEE GREENMAN, GETTING ALONG WITH UNIONS 26(1948); UNION
AGREEMENTS IN THE COTTON-TEXTILE INDUSTRY, U.S. DEPT. OF LABOR, BULL. 
NO. 885, P. 28(1946); THOMAS, AUTOMOBILE UNIONISM 56(1941); COLLECTIVE
BARGAINING PROVISIONS, SENIORITY PROVISIONS, U.S. DEPT. OF LABOR 28
29(1948); COLLECTIVE BARGAINING IN THE OFFICE, AMERICAN MANAGEMENT
ASSN., RESEARCH REP. NO. 12, P. 72.  THE ADVANTAGE OF THIS MODIFICATION
IN SENIORITY ACCORDING TO LENGTH OF SERVICE IN THE PLANT IS "THE MUTUAL
INTEREST OF UNION AND MANAGEMENT IN PRESERVING THE CONTINUITY OF THE
BARGAINING AND GRIEVANCE ADJUSTMENT PERSONNEL."  SENIORITY PROVISIONS
IN UNION AGREEMENTS, U.S. DEPT. OF LABOR, SERIAL NO. R. 1308, P.
7(1941).  WHILE THERE IS NOT COMPLETE AGREEMENT ON THE ADVANTAGE OF
SENIORITY FOR UNION CHAIRMEN, IT IS CERTAINLY WITHIN THE AREA OF
COLLECTIVE BARGAINING.  SEE WILLIAMSON AND HARRIS, TRENDS IN COLLECTIVE
BARGAINING 101-103(1945); SEE GREENMAN, GETTING ALONG WITH UNIONS 85
86(1948).  THE NATIONAL WAR LABOR BOARD RECOGNIZED "THAT THE FUNCTIONS
OF SHOP STEWARDS AND OTHER LOCAL UNION OFFICIALS WERE OF VALUE TO A
COMPANY AS WELL AS TO ITS EMPLOYEES IN SETTLING AND PREVENTING LABOR
GRIEVANCES.  FOR THIS REASON, IT USUALLY DIRECTED SENIORITY PREFERENCE
FOR UNION OFFICIALS IN DISPUTES OVER THE ISSUE."  THE TERMINATION
REPORT OF THE NATIONAL WAR LABOR BOARD, U.S. DEPT. OF LABOR, VOL. I, P.
148. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 
..END :























RAGAN V. MERCHANTS TRANSFER CO., 337 U.S. 530 


NO. 522.  ARGUED APRIL 20, 1949.  - DECIDED JUNE 20, 1949.  - 170 F.2D
987, AFFIRMED. 


SOLELY ON GROUNDS OF DIVERSITY OF CITIZENSHIP, PETITIONER SUED IN THE
FEDERAL DISTRICT COURT FOR KANSAS TO RECOVER DAMAGES FOR INJURIES
SUSTAINED IN A HIGHWAY ACCIDENT WHICH OCCURRED LESS THAN TWO YEARS
BEFORE HIS COMPLAINT WAS FILED; BUT THE SUMMONS WAS NOT SERVED UNTIL
MORE THAN TWO YEARS AFTER THE DATE OF THE ACCIDENT.  THE COMPLAINT WAS
FILED AND THE SUMMONS ISSUED IN ACCORDANCE WITH THE FEDERAL RULES OF
CIVIL PROCEDURE; BUT KANSAS HAS A TWO-YEAR STATUTE OF LIMITATIONS
APPLICABLE TO SUCH TORT CLAIMS WHICH THE COURT OF APPEALS HELD IS NOT
TOLLED UNTIL SERVICE OF A SUMMONS.  HELD:  THE SUIT WAS BARRED BY THE
STATE STATUTE OF LIMITATIONS.  PP. 531-534. 

(A)  THIS RESULT NECESSARILY FOLLOWS FROM ERIE R. CO. V. TOMPKINS,
304 U.S. 64, SINCE OTHERWISE THE PLAINTIFF'S RIGHTS UNDER LOCAL LAW
WOULD BE DIFFERENT IN THE FEDERAL COURTS FROM WHAT THEY WOULD BE IN THE
STATE COURTS.  PP. 532-533. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY THE FACT THAT THE FEDERAL
RULES OF CIVIL PROCEDURE GOVERN THE MANNER IN WHICH AN ACTION IS
COMMENCED IN A FEDERAL COURT.  PP. 532-533. 

(C)  NOR IS A DIFFERENT RESULT REQUIRED BY THE FACT THAT LOCAL LAW
BROUGHT THE CAUSE OF ACTION TO AN END AFTER, RATHER THAN BEFORE, SUIT
WAS STARTED IN THE FEDERAL COURT.  PP. 533-534. 

(D)  IN ACCORDANCE WITH ITS USUAL PRACTICE OF ACCEPTING THE
DETERMINATION OF LOCAL LAW BY THE COURT OF APPEALS, THIS COURT ACCEPTS
THE HOLDING OF THE COURT OF APPEALS THAT A KANSAS STATUTE PROVIDING
THAT AN ACTION IS COMMENCED WHEN SUMMONS IS SERVED ON THE DEFENDANT IS
AN INTEGRAL PART OF THE KANSAS STATUTE OF LIMITATIONS.  P. 534. 

RAGAN V. MERCHANTS TRANSFER & WAREHOUSE CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

HAVING JURISDICTION SOLELY ON GROUNDS OF DIVERSITY OF CITIZENSHIP, A
FEDERAL DISTRICT COURT GRANTED PETITIONER A JUDGMENT FOR DAMAGES
SUSTAINED IN A HIGHWAY ACCIDENT.  THE COURT OF APPEALS REVERSED.  170
F.2D 987.  THIS COURT GRANTED CERTIORARI.  336 U.S. 917.  AFFIRMED, P.
534. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
REED. 

THIS CASE, INVOLVING A HIGHWAY ACCIDENT WHICH OCCURRED ON OCTOBER 1,
1943, CAME TO THE DISTRICT COURT FOR KANSAS BY REASON OF DIVERSITY OF
CITIZENSHIP.  PETITIONER INSTITUTED IT THERE ON SEPTEMBER 4, 1945, BY
FILING THE COMPLAINT WITH THE COURT - THE PROCEDURE SPECIFIED BY THE
FEDERAL RULES OF CIVIL PROCEDURE.  FN1  AS PRESCRIBED BY THOSE RULES, A
SUMMONS WAS ISSUED.  FN2  SERVICE WAS HAD ON DECEMBER 28, 1945.  KANSAS
HAS A TWO-YEAR STATUTE OF LIMITATIONS APPLICABLE TO SUCH TORT CLAIMS. 
FN3  RESPONDENT PLEADED IT AND MOVED FOR SUMMARY JUDGMENT.  PETITIONER
CLAIMED THAT THE FILING OF THE COMPLAINT TOLLED THE STATUTE. 
RESPONDENT ARGUED THAT BY REASON OF A KANSAS STATUTE  FN4  THE STATUTE
OF LIMITATIONS WAS NOT TOLLED UNTIL SERVICE OF THE SUMMONS. 

THE DISTRICT COURT STRUCK THE DEFENSE AND DENIED RESPONDENT'S
MOTION.  A TRIAL WAS HAD AND A VERDICT RENDERED FOR PETITIONER.  THE
COURT OF APPEALS REVERSED.  170 F.2D 987.  IT RULED, AFTER A REVIEW OF
KANSAS AUTHORITIES, THAT THE REQUIREMENT OF SERVICE OF SUMMONS WITHIN
THE STATUTORY PERIOD WAS AN INTEGRAL PART OF THAT STATE'S STATUTE OF
LIMITATIONS.  IT ACCORDINGLY HELD THAT GUARANTY TRUST CO. V. YORK, 326
U.S. 99, GOVERNED AND THAT RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
SHOULD HAVE BEEN SUSTAINED.  THE CASE IS HERE ON A PETITION FOR
CERTIORARI WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTION
PRESENTED.  336 U.S. 917. 

ERIE R. CO. V. TOMPKINS, 304 U.S. 64, WAS PREMISED ON THE THEORY THAT
IN DIVERSITY CASES THE RIGHTS ENJOYED UNDER LOCAL LAW SHOULD NOT VARY
BECAUSE ENFORCEMENT OF THOSE RIGHTS WAS SOUGHT IN THE FEDERAL COURT
RATHER THAN IN THE STATE COURT.  IF RECOVERY COULD NOT BE HAD IN THE
STATE COURT, IT SHOULD BE DENIED IN THE FEDERAL COURT.  OTHERWISE,
THOSE AUTHORIZED TO INVOKE THE DIVERSITY JURISDICTION WOULD GAIN
ADVANTAGES OVER THOSE CONFINED TO STATE COURTS.  GUARANTY TRUST CO. V.
YORK APPLIED THAT PRINCIPLE TO STATUTES OF LIMITATIONS ON THE THEORY
THAT, WHERE ONE IS BARRED FROM RECOVERY IN THE STATE COURT, HE SHOULD
LIKEWISE BE BARRED IN THE FEDERAL COURT. 

IT IS CONCEDED THAT IF THE PRESENT CASE WERE IN A KANSAS COURT IT
WOULD BE BARRED.  THE THEORY OF GUARANTY TRUST CO. V. YORK WOULD
THEREFORE SEEM TO BAR IT IN THE FEDERAL COURT, AS THE COURT OF APPEALS
HELD.  THE FORCE OF THAT REASONING IS SOUGHT TO BE AVOIDED BY THE
ARGUMENT THAT THE FEDERAL RULES OF CIVIL PROCEDURE DETERMINE THE MANNER
IN WHICH AN ACTION IS COMMENCED IN THE FEDERAL COURTS - A MATTER OF
PROCEDURE WHICH THE PRINCIPLE OF ERIE R. CO. V. TOMPKINS DOES NOT
CONTROL.  IT IS ACCORDINGLY ARGUED THAT SINCE THE SUIT WAS PROPERLY
COMMENCED IN THE FEDERAL COURT BEFORE THE KANSAS STATUTE OF LIMITATIONS
RAN, IT TOLLED THE STATUTE. 

THAT WAS THE REASONING AND RESULT IN BOMAR V. KEYES, 162 F.2D 136,
141.  BUT THAT CASE WAS A SUIT TO ENFORCE RIGHTS UNDER A FEDERAL
STATUTE.  FN5  HERE, AS IN THAT CASE, THERE CAN BE NO DOUBT THAT THE
SUIT WAS PROPERLY COMMENCED IN THE FEDERAL COURT.  BUT IN THE PRESENT
CASE WE LOOK TO LOCAL LAW TO FIND THE CAUSE OF ACTION ON WHICH SUIT IS
BROUGHT.  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.  SEE CITIES SERVICE CO. V. DUNLAP, 308 U.S. 208;
PALMER V. HOFFMAN, 318 U.S. 109, 117.  IT ACCRUES AND COMES TO AN END
WHEN LOCAL LAW SO DECLARES.  WEST V. AMERICAN TEL. & T. CO., 311 U.S.
223; GUARANTY TRUST CO. V. YORK, SUPRA.  WHERE LOCAL LAW QUALIFIES OR
ABRIDGES IT, THE FEDERAL COURT MUST FOLLOW SUIT.  OTHERWISE THERE IS A
DIFFERENT MEASURE OF THE CAUSE OF ACTION IN ONE COURT THAN IN THE
OTHER, AND THE PRINCIPLE OF ERIE R. CO. V. TOMPKINS IS TRANSGRESSED. 

WE CAN DRAW NO DISTINCTION IN THIS CASE BECAUSE LOCAL LAW BROUGHT THE
CAUSE OF ACTION TO AN END AFTER, RATHER THAN BEFORE, SUIT WAS STARTED
IN THE FEDERAL COURT.  IN BOTH CASES LOCAL LAW CREATED THE RIGHT WHICH
THE FEDERAL COURT WAS ASKED TO ENFORCE.  IN BOTH CASES LOCAL LAW
UNDERTOOK TO DETERMINE THE LIFE OF THE CAUSE OF ACTION.  WE CANNOT GIVE
IT LONGER LIFE IN THE FEDERAL COURT THAN IT WOULD HAVE HAD IN THE STATE
COURT WITHOUT ADDING SOMETHING TO THE CAUSE OF ACTION.  WE MAY NOT DO
THAT CONSISTENTLY WITH ERIE R. CO. V. TOMPKINS. 

IT IS ARGUED THAT THE KANSAS STATUTE IN QUESTION  FN6  IS NOT AN
INTEGRAL PART OF THE KANSAS STATUTE OF LIMITATIONS.  BUT THE COURT OF
APPEALS ON A CAREFUL CANVASS OF KANSAS LAW IN AN OPINION WRITTEN BY
JUDGE HUXMAN, A DISTINGUISHED MEMBER OF THE KANSAS BAR, HAS HELD TO THE
CONTRARY.  WE ORDINARILY ACCEPT THE DETERMINATION OF LOCAL LAW BY THE
COURT OF APPEALS (SEE HUDDLESTON V. DWYER, 322 U.S. 232, 237), AND WE
WILL NOT DISTURB IT HERE.  AFFIRMED. 

FN1  RULE 3 PROVIDES, "A CIVIL ACTION IS COMMENCED BY FILING A
COMPLAINT WITH THE COURT." 

FN2  RULE 4(A) PROVIDES: 

"UPON THE FILING OF THE COMPLAINT THE CLERK SHALL FORTHWITH ISSUE A
SUMMONS AND DELIVER IT FOR SERVICE TO THE MARSHAL OR TO A PERSON
SPECIALLY APPOINTED TO SERVE IT.  UPON REQUEST OF THE PLAINTIFF
SEPARATE OR ADDITIONAL SUMMONS SHALL ISSUE AGAINST ANY DEFENDANTS." 

AN EARLIER SUMMONS ISSUED ON SEPTEMBER 7, 1945, AND THEREAFTER SERVED
HAD BEEN QUASHED. 

FN3  KAN. GEN. STATS. 1935, SEC. 60-306. 

FN4  ID., SEC. 60-308 PROVIDES, 

"AN ACTION SHALL BE DEEMED COMMENCED WITHIN THE MEANING OF THIS
ARTICLE, AS TO EACH DEFENDANT, AT THE DATE OF THE SUMMONS WHICH IS
SERVED ON HIM, OR ON A CODEFENDANT WHO IS A JOINT CONTRACTOR, OR
OTHERWISE UNITED IN INTEREST WITH HIM.  WHERE SERVICE BY PUBLICATION IS
PROPER, THE ACTION SHALL BE DEEMED COMMENCED AT THE DATE OF THE FIRST
PUBLICATION.  AN ATTEMPT TO COMMENCE AN ACTION SHALL BE DEEMED
EQUIVALENT TO THE COMMENCEMENT THEREOF WITHIN THE MEANING OF THIS
ARTICLE WHEN THE PARTY FAITHFULLY, PROPERLY AND DILIGENTLY ENDEAVORS TO
PROCURE A SERVICE; BUT SUCH ATTEMPT MUST BE FOLLOWED BY THE FIRST
PUBLICATION OR SERVICE OF THE SUMMONS WITHIN SIXTY DAYS." 

FN5  CIVIL RIGHTS ACT, 8 U.S.C. SEC. 43. 

FN6  NOTE 4, SUPRA. 

MR. JUSTICE RUTLEDGE DISSENTS.  SEE HIS DISSENTING OPINION IN NOS.
442 AND 512, COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., POST, P. 557. 
..END :






















WOODS V. INTERSTATE REALTY CO., 337 U.S. 535 


NO. 465.  ARGUED MARCH 30-31, 1949.  - DECIDED JUNE 20, 1949.  - 170
F.2D 694, REVERSED. 


IN AN ACTION BROUGHT BY A FOREIGN CORPORATION IN A FEDERAL DISTRICT
COURT SOLELY ON GROUNDS OF DIVERSITY OF CITIZENSHIP TO RECOVER A
BROKER'S COMMISSION FOR THE SALE OF REAL ESTATE IN THE STATE, DEFENDANT
MOVED FOR SUMMARY JUDGMENT ON THE GROUND THAT PLAINTIFF HAD NOT
QUALIFIED TO DO BUSINESS IN THE STATE UNDER A STATE STATUTE WHICH THE
COURT OF APPEALS CONSTRUED AS NOT MAKING THE CONTRACT VOID BUT ONLY
UNENFORCIBLE IN THE STATE COURTS.  HELD:  THE MOTION FOR SUMMARY
JUDGMENT WAS PROPERLY GRANTED.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 
PP. 535-538. 

WOODS V. INTERSTATE REALTY CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

HAVING JURISDICTION SOLELY ON GROUNDS OF DIVERSITY OF CITIZENSHIP, A
FEDERAL DISTRICT COURT GRANTED A DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT IN A SUIT TO RECOVER A BROKER'S COMMISSION, ON THE GROUND THAT
THE PLAINTIFF, A FOREIGN CORPORATION, HAD NOT QUALIFIED TO DO BUSINESS
IN THE STATE AS REQUIRED BY STATE LAW.  THE COURT OF APPEALS REVERSED,
168 F.2D 701; GRANTED REHEARING, 170 F.2D 74; AND REAFFIRMED ITS
REVERSAL, 170 F.2D 694.  THIS COURT GRANTED CERTIORARI.  336 U.S. 909. 
REVERSED, P. 538. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
REED. 

THIS CASE WAS BROUGHT IN THE DISTRICT COURT FOR MISSISSIPPI ON THE
GROUNDS OF DIVERSITY OF CITIZENSHIP.  RESPONDENT, A TENNESSEE
CORPORATION, SUED PETITIONER, A RESIDENT OF MISSISSIPPI, FOR A BROKER'S
COMMISSION ALLEGED TO BE DUE FOR THE SALE OF REAL ESTATE OF PETITIONER
IN MISSISSIPPI.  THE DISTRICT COURT FOUND ON MOTION FOR SUMMARY
JUDGMENT THAT THE CONTRACT WAS VOID UNDER MISSISSIPPI LAW, SINCE
RESPONDENT WAS DOING BUSINESS IN MISSISSIPPI WITHOUT QUALIFYING UNDER A
MISSISSIPPI STATUTE N1.  IT THEREFORE DISMISSED THE COMPLAINT WITH
PREJUDICE. 

THE COURT OF APPEALS REVERSED.  IT REVIEWED THE MISSISSIPPI DECISIONS
UNDER THE MISSISSIPPI STATUTE AND CONCLUDED THAT THE CONTRACT WAS NOT
VOID BUT ONLY UNENFORCIBLE IN THE MISSISSIPPI COURTS.  IT HELD IN
RELIANCE ON DAVID LUPTON'S SONS CO. V. AUTOMOBILE CLUB, 225 U.S. 489,
THAT THE FACT THAT RESPONDENT COULD NOT SUE IN THE MISSISSIPPI COURTS
DID NOT CLOSE THE DOORS OF THE FEDERAL COURT SITTING IN THAT STATE. 
ACCORDINGLY IT REVERSED THE JUDGMENT OF THE DISTRICT COURT.  168 F.2D
701.  IT GRANTED REHEARING, 170 F.2D 74, AND REAFFIRMED ITS REVERSAL,
170 F.2D 694. 

THE CASE IS HERE ON A PETITION FOR WRIT OF CERTIORARI WHICH WE GRANTED
BECAUSE OF THE SEEMING CONFLICT OF THAT HOLDING WITH OUR RECENT RULING
IN ANGEL V. BULLINGTON, 330 U.S. 183. 

IF THE LUPTON'S SONS CASE CONTROLS, IT IS CLEAR THAT THE COURT OF
APPEALS WAS RIGHT IN ALLOWING THE ACTION TO BE MAINTAINED IN THE
FEDERAL COURT.  IN THAT CASE A NEW YORK STATUTE PROVIDED THAT NO
FOREIGN CORPORATION COULD "MAINTAIN ANY ACTION IN THIS STATE" WITHOUT A
CERTIFICATE THAT IT HAD QUALIFIED TO DO BUSINESS THERE.  THE COURT HELD
THAT A CONTRACT ON WHICH THE CORPORATION COULD NOT SUE IN THE COURTS OF
NEW YORK BY REASON OF THAT STATUTE NEVERTHELESS COULD BE ENFORCED IN
THE FEDERAL COURT IN A DIVERSITY SUIT.  THE COURT SAID, 225 U.S. P.
500, 

"THE STATE COULD NOT PRESCRIBE THE QUALIFICATIONS OF SUITORS IN THE
COURTS OF THE UNITED STATES, AND COULD NOT DEPRIVE OF THEIR PRIVILEGES
THOSE WHO WERE ENTITLED UNDER THE CONSTITUTION AND LAWS OF THE UNITED
STATES TO RESORT TO THE FEDERAL COURTS FOR THE ENFORCEMENT OF A VALID
CONTRACT." 

WE SAID IN ANGEL V. BULLINGTON THAT THE CASE OF LUPTON'S SONS HAD
BECOME "OBSOLETE" INSOFAR AS IT WAS "BASED ON A VIEW OF DIVERSITY
JURISDICTION WHICH CAME TO AN END WITH ERIE RAILROAD V. TOMPKINS, 304
U.S. 64."  330 U.S. P. 192.  BULLINGTON HAD SUED ANGEL IN A NORTH
CAROLINA COURT FOR A DEFICIENCY JUDGMENT ON THE SALE OF REALTY UNDER A
DEED OF TRUST.  THE SUPREME COURT OF NORTH CAROLINA DISMISSED THE
ACTION BECAUSE OF A NORTH CAROLINA STATUTE WHICH DISALLOWED A
DEFICIENCY JUDGMENT IN SUCH A CASE AND WHICH THE NORTH CAROLINA SUPREME
COURT CONSTRUED TO BE "A LIMITATION OF THE JURISDICTION OF THE COURTS
OF THIS STATE."  220 N.C. 18, 20, 16 S.E.2D 411, 412.  THEREAFTER
BULLINGTON SUED IN THE FEDERAL COURT OF NORTH CAROLINA BY REASON OF
DIVERSITY OF CITIZENSHIP.  WE HELD THAT THAT SUIT COULD NOT BE
MAINTAINED BECAUSE (1) THE PRIOR SUIT WAS RES JUDICATA; AND (2) THE
POLICY OF ERIE R. CO. V. TOMPKINS PRECLUDED MAINTENANCE IN THE FEDERAL
COURT IN DIVERSITY CASES OF SUITS TO WHICH THE STATE HAD CLOSED ITS
COURTS. 

THE COURT OF APPEALS CONCLUDED THAT THE LATTER REASON WAS
ARGUMENTATORY, THE REAL BASIS OF THE DECISION BEING THAT BULLINGTON WAS
DENIED RECOVERY ON THE DOCTRINE OF RES JUDICATA.  BUT WHERE A DECISION
RESTS ON TWO OR MORE GROUNDS, NONE CAN BE RELEGATED TO THE CATEGORY OF
OBITER DICTUM.  UNITED STATES V. TITLE INS. CO., 265 U.S. 472, 486;
MASSACHUSETTS V. UNITED STATES, 333 U.S. 611, 623. 

ANGEL V. BULLINGTON IN ITS ALTERNATIVE GROUND FOLLOWED THE VIEW OF
GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 108, THAT FOR PURPOSES OF
DIVERSITY JURISDICTION A FEDERAL COURT IS, "IN EFFECT, ONLY ANOTHER
COURT OF THE STATE  ...  "  IN THAT CASE WE REQUIRED THE FEDERAL COURT
IN A DIVERSITY CASE TO APPLY THE STATUTE OF LIMITATIONS OF THE STATE IN
EQUITY ACTIONS AND THUS TO FOLLOW LOCAL LAW, AS HAD PREVIOUSLY BEEN
DONE IN CASES INVOLVING BURDEN OF PROOF (CITIES SERVICE CO. V. DUNLAP,
308 U.S. 208; CF. STONER V. NEW YORK LIFE INS. CO., 311 U.S. 464);
CONTRIBUTORY NEGLIGENCE (PALMER V. HOFFMAN, 318 U.S. 109, 117);
CONFLICT OF LAWS (KLAXON CO. V. STENTOR CO., 313 U.S. 487; GRIFFIN V.
MCCOACH, 313 U.S. 498); AND ACCRUAL OF THE CAUSE OF ACTION (WEST V.
AMERICAN TEL. & T. CO., 311 U.S. 223).  THE YORK CASE WAS PREMISED ON
THE THEORY THAT A RIGHT WHICH LOCAL LAW CREATES BUT WHICH IT DOES NOT
SUPPLY WITH A REMEDY IS NO RIGHT AT ALL FOR PURPOSES OF ENFORCEMENT IN
A FEDERAL COURT IN A DIVERSITY CASE; THAT WHERE IN SUCH CASES ONE IS
BARRED FROM RECOVERY IN THE STATE COURT, HE SHOULD LIKEWISE BE BARRED
IN THE FEDERAL COURT.  THE CONTRARY RESULT WOULD CREATE DISCRIMINATIONS
AGAINST CITIZENS OF THE STATE IN FAVOR OF THOSE AUTHORIZED TO INVOKE
THE DIVERSITY JURISDICTION OF THE FEDERAL COURTS.  IT WAS THAT ELEMENT
OF DISCRIMINATION THAT ERIE R. CO. V. TOMPKINS WAS DESIGNED TO
ELIMINATE.  REVERSED. 

FN1  MISS.  CODE 1942, SEC. 5319, REQUIRES A FOREIGN CORPORATION
DOING BUSINESS IN THE STATE TO FILE A WRITTEN POWER OF ATTORNEY
DESIGNATING AN AGENT ON WHOM SERVICE OF PROCESS MAY BE HAD.  IT ALSO
PROVIDES, "ANY FOREIGN CORPORATION FAILING TO COMPLY WITH THE ABOVE
PROVISIONS SHALL NOT BE PERMITTED TO BRING OR MAINTAIN ANY ACTION OR
SUIT IN ANY OF THE COURTS OF THIS STATE." 

MR. JUSTICE RUTLEDGE DISSENTS.  SEE HIS DISSENTING OPINION IN NOS.
442 AND 512, COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP., POST, P. 557. 

MR. JUSTICE JACKSON, DISSENTING. 

ERIE R. CO. V. TOMPKINS, 304 U.S. 64, REQUIRED FEDERAL COURTS IN
DIVERSITY CASES TO APPLY STATE DECISIONAL LAW AS THE RULES OF DECISION
ACT REQUIRED THEM TO APPLY STATE STATUTES. 

THAT IS WHAT THE COURT OF APPEALS TRIED TO DO IN THIS CASE.  THE
STATE OF MISSISSIPPI HAS A STATUTE WHICH SAYS THAT IF A CORPORATION
DOES NOT QUALIFY TO DO BUSINESS WITHIN THE STATE IT "SHALL NOT BE
PERMITTED TO BRING OR MAINTAIN ANY ACTION OR SUIT IN ANY OF THE COURTS
OF THIS STATE."  THE COURT OF APPEALS REVIEWED STATE COURT DECISIONS,
SOME OF WHICH ARE NOT FREE FROM AMBIGUITY, AND FOUND THAT THE LAW OF
MISSISSIPPI INTENDS TO GO NO FARTHER THAN TO WITHHOLD THE AID OF
STATEMAINTAINED COURTS FROM A NONCOMPLYING CORPORATION AND THAT THE
STATE LAW DOES NOT DEPRIVE CONTRACTS OF THEIR VALIDITY OR INTEND TO
FORECLOSE FOREIGN CORPORATIONS FROM RESORT TO FEDERAL COURTS OR TO ANY
SELF-ENFORCING REMEDIES THEY MAY HAVE. 

THIS COURT REFUSES TO GIVE THE STATUTE THAT LIMITED EFFECT.  I
UNDERSTAND IT TO RULE THAT MISSISSIPPI CANNOT ENACT A LAW CLOSING ITS
OWN COURTS TO SUCH FOREIGN CORPORATIONS WITHOUT ALSO CLOSING THE
FEDERAL COURTS.  IN THIS WE SEEM TO BE DOING THE VERY THING WE PROFESS
TO AVOID; THAT IS, GIVING THE STATE LAW A DIFFERENT MEANING IN FEDERAL
COURT THAN THE STATE COURTS HAVE GIVEN IT. 

THE MISSISSIPPI STATUTE FOLLOWS A PATTERN GENERAL AMONG THE STATES IN
REQUIRING QUALIFICATION AND PAYMENT OF FEES BY FOREIGN CORPORATIONS. 
STATE COURTS HAVE GENERALLY HELD SUCH ACTS TO DO NO MORE THAN TO
WITHHOLD STATE HELP FROM THE NONCOMPLYING CORPORATION BUT TO LEAVE
THEIR RIGHTS OTHERWISE UNIMPAIRED.  THIS INTERPRETATION LEFT SUCH
CORPORATIONS A BASIS ON WHICH TO GET THE HELP OF ANY OTHER COURT -
FEDERAL OR STATE - THAT COULD OTHERWISE TAKE JURISDICTION, AND FREE TO
RESORT TO PLEDGED PROPERTY, OFFSET AND VARIOUS OTHER METHODS OF SELF
HELP. 

THE STATE STATUTE AS NOW INTERPRETED BY THIS COURT IS A HARSH,
CAPRICIOUS AND VINDICTIVE MEASURE.  IT EITHER REFUSES TO ENTERTAIN A
CAUSE OF ACTION, NOT IMPAIRED BY STATE LAW, OR IT HOLDS IT INVALID WITH
UNKNOWN EFFECTS ON AMOUNTS ALREADY COLLECTED.  IN EITHER CASE THE
AMOUNT OF THIS PUNISHMENT BEARS NO RELATION TO THE AMOUNT OF WRONG DONE
THE STATE IN FAILURE TO QUALIFY AND PAY ITS TAXES.  THE PENALTY THUS
SUFFERED DOES NOT GO TO THE STATE, WHICH SUSTAINED THE INJURY, BUT
RESULTS IN UNJUST ENRICHMENT OF THE DEBTOR, WHO HAS SUFFERED NO INJURY
FROM THE CREDITORS' DEFAULT IN QUALIFICATION.  IF THE STATE COURT HAD
HELD ITS STATUTE TO HAVE THIS EFFECT, I SHOULD AGREE THAT FEDERAL
COURTS SHOULD SO APPLY IT; BUT THE WHOLE BASIS OF OUR DECISION IS
CONTRARY TO THAT OF THE STATE COURTS. 

I THINK THE COURT'S ACTION IN REFUSING TO ACCEPT THE STATE COURT'S
DETERMINATION OF THE EFFECT OF ITS OWN STATUTE IS A PERVERSION OF THE
ERIE R. CO. V. TOMPKINS DOCTRINE. 

I WOULD AFFIRM THE COURT BELOW. 

MR. JUSTICE RUTLEDGE AND MR. JUSTICE BURTON JOIN IN THIS OPINION. 
..END :






















COHEN V. BENEFICIAL LOAN CORP., 337 U.S. 541 


ARGUED APRIL 18, 1949.  - DECIDED JUNE 20, 1949.  - 170 F.2D 44,
AFFIRMED. 


1.  UNDER 28 U.S.C. SEC. 1291, APPEAL MAY BE TAKEN FROM AN ORDER OF A
FEDERAL DISTRICT COURT DENYING A CORPORATION'S MOTION THAT THE
PLAINTIFF IN A STOCKHOLDER'S DERIVATIVE ACTION BE REQUIRED, PURSUANT TO
A STATE STATUTE, TO GIVE SECURITY FOR REASONABLE EXPENSES OF THE
DEFENDANTS, IN CONNECTION WITH THE ACTION.  PP. 545-547. 

(A)  THE MATTERS EMBRACED IN SUCH AN ORDER ARE NOT OF SUCH AN
INTERLOCUTORY NATURE AS TO AFFECT, OR TO BE AFFECTED BY, A DECISION ON
THE MERITS.  P. 546. 

(B)  THE ORDER IS APPEALABLE BECAUSE IT IS A FINAL DISPOSITION OF A
CLAIMED RIGHT WHICH IS NOT AN INGREDIENT OF THE CAUSE OF ACTION AND
DOES NOT REQUIRE CONSIDERATION WITH IT.  PP. 546-547. 

2.  A STATE STATUTE PROVIDING THAT, IN ANY STOCKHOLDER'S DERIVATIVE
ACTION PENDING AT THE TIME OF ITS ENACTMENT OR THEREAFTER BROUGHT, IN
WHICH THE PLAINTIFF'S INTEREST AS A SHAREHOLDER IS LESS THAN 5% OF THE
VALUE OF ALL OUTSTANDING SHARES AND HAS A MARKET VALUE OF LESS THAN
$50,000, HE MAY BE REQUIRED AT ANY STAGE OF THE PROCEEDING TO GIVE
SECURITY FOR THE REASONABLE EXPENSES, INCLUDING COUNSEL FEES, WHICH THE
CORPORATION MAY INCUR OR FOR WHICH IT MAY BECOME LIABLE, DOES NOT
VIOLATE THE FEDERAL CONSTITUTION.  PP. 547-555. 

(A)  THE FEDERAL CONSTITUTION DOES NOT OBLIGE A STATE TO PLACE ITS
LITIGATING AND ADJUDICATING PROCESSES AT THE DISPOSAL OF A PLAINTIFF IN
A STOCKHOLDER'S DERIVATIVE SUIT, AT LEAST WITHOUT IMPOSING STANDARDS OF
RESPONSIBILITY, LIABILITY AND ACCOUNTABILITY WHICH IT CONSIDERS WILL
PROTECT THE INTERESTS HE ELECTS HIMSELF TO REPRESENT.  PP. 547-551. 

(B)  THE STATUTE HERE INVOLVED DOES NOT VIOLATE THE CONTRACT CLAUSE
OF THE CONSTITUTION.  P. 551. 

(C)  FOR A STATE TO CLOSE ITS COURTS TO THIS TYPE OF LITIGATION IF
THE CONDITION OF REASONABLE SECURITY IS NOT MET DOES NOT VIOLATE THE
DUE PROCESS CLAUSE.  PP. 551-552. 

(D)  THE LIMITATION OF THE REQUIREMENT OF THE STATUTE TO STOCKHOLDERS
WHOSE INTEREST IS LESS THAN 5% AND HAS A MARKET VALUE OF LESS THAN
$50,000, DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION.  PP. 552-553. 

(E)  ASSUMING THAT THE STATUTE WILL NOT BE CONSTRUED AS IMPOSING
LIABILITY FOR EXPENSES INCURRED BEFORE ITS ENACTMENT, OR PERHAPS BEFORE
THE GRANTING OF SECURITY IN A PARTICULAR CASE, THE PROVISION MAKING IT
APPLICABLE TO ACTIONS PENDING AT THE TIME OF ITS ENACTMENT DOES NOT
GIVE IT SUCH A RETROACTIVE EFFECT AS TO RENDER IT UNCONSTITUTIONAL
UNDER THE DUE PROCESS CLAUSE.  PP. 553-554. 

3.  THAT A CORPORATION WHICH WAS THE SUBJECT OF A STOCKHOLDER'S
DERIVATIVE ACTION IN NEW JERSEY WAS ORGANIZED UNDER THE LAWS OF
DELAWARE DOES NOT MAKE INAPPLICABLE A NEW JERSEY STATUTE PROVIDING THAT
THE PLAINTIFF MAY BE REQUIRED TO GIVE SECURITY FOR REASONABLE EXPENSES
OF THE CORPORATION.  PP. 554-555. 

4.  A FEDERAL COURT, HAVING JURISDICTION OF A STOCKHOLDER'S
DERIVATIVE ACTION ONLY BECAUSE OF DIVERSITY OF CITIZENSHIP, MUST APPLY
A STATUTE OF THE FORUM STATE WHICH MAKES THE PLAINTIFF, IF
UNSUCCESSFUL, LIABLE FOR REASONABLE EXPENSES, INCLUDING ATTORNEY'S
FEES, OF THE DEFENSE AND PROVIDES THAT THE CORPORATION MAY REQUIRE THE
PLAINTIFF TO GIVE SECURITY FOR THEIR PAYMENT AS A CONDITION OF
PROSECUTING THE ACTION.  PP. 543-545, 555-557. 

(A)  A STATUTE WHICH SO CONDITIONS THE STOCKHOLDER'S ACTION CANNOT BE
DISREGARDED BY THE FEDERAL COURT AS A MERE PROCEDURAL DEVICE.  PP. 555
556. 

(B)  A DIFFERENT RESULT IS NOT REQUIRED BY RULE 23 OF THE FEDERAL
RULES OF CIVIL PROCEDURE, SINCE THERE IS NO CONFLICT BETWEEN THAT RULE
AND THE STATE STATUTE.  P. 556. 

COHEN, EXECUTRIX, ET AL. V. BENEFICIAL INDUSTRIAL LOAN CORP. ET AL. 

NO. 442.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT* . 

*TOGETHER WITH NO. 512, BENEFICIAL INDUSTRIAL LOAN CORP. V. SMITH,
UNITED STATES DISTRICT JUDGE, ET AL., ALSO ON CERTIORARI TO THE SAME
COURT. 

A FEDERAL DISTRICT COURT, HAVING JURISDICTION OF A STOCKHOLDER'S
DERIVATIVE ACTION SOLELY BECAUSE OF DIVERSITY OF CITIZENSHIP, DENIED A
MOTION TO REQUIRE THE PLAINTIFF TO POST SECURITY FOR REASONABLE
EXPENSES INCURRED BY THE DEFENSE, AS REQUIRED BY A STATUTE OF THE FORUM
STATE.  7 F.R.D. 352.  THE COURT OF APPEALS REVERSED.  170 F.2D 44. 
THIS COURT GRANTED CERTIORARI.  336 U.S. 917.  AFFIRMED, P. 556. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE QUESTION HERE IS WHETHER A FEDERAL COURT, HAVING
JURISDICTION OF A STOCKHOLDER'S DERIVATIVE ACTION ONLY BECAUSE THE
PARTIES ARE OF DIVERSE CITIZENSHIP, MUST APPLY A STATUTE OF THE FORUM
STATE WHICH MAKES THE PLAINTIFF, IF UNSUCCESSFUL, LIABLE FOR THE
REASONABLE EXPENSES, INCLUDING ATTORNEY'S FEES, OF THE DEFENSE AND
ENTITLES THE CORPORATION TO REQUIRE SECURITY FOR THEIR PAYMENT. 

PETITIONERS' DECEDENT, AS PLAINTIFF, BROUGHT IN THE UNITED STATES
DISTRICT COURT FOR NEW JERSEY AN ACTION IN THE RIGHT OF THE BENEFICIAL
INDUSTRIAL LOAN CORPORATION, A DELAWARE CORPORATION DOING BUSINESS IN
NEW JERSEY.  THE DEFENDANTS WERE THE CORPORATION AND CERTAIN OF ITS
MANAGERS AND DIRECTORS.  THE COMPLAINT ALLEGED GENERALLY THAT SINCE
1929 THE INDIVIDUAL DEFENDANTS ENGAGED IN A CONTINUING AND SUCCESSFUL
CONSPIRACY TO ENRICH THEMSELVES AT THE EXPENSE OF THE CORPORATION. 
SPECIFIC CHARGES OF MISMANAGEMENT AND FRAUD EXTENDED OVER A PERIOD OF
EIGHTEEN YEARS AND THE ASSETS ALLEGEDLY WASTED OR DIVERTED THEREBY WERE
SAID TO EXCEED $100,000,000.  THE STOCKHOLDER HAD DEMANDED THAT THE
CORPORATION INSTITUTE PROCEEDINGS FOR ITS RECOVERY BUT, BY THEIR
CONTROL OF THE CORPORATION, THE INDIVIDUAL DEFENDANTS PREVENTED IT FROM
DOING SO.  THIS STOCKHOLDER, THEREFORE, SOUGHT TO ASSERT THE RIGHT OF
THE CORPORATION.  ONE OF 16,000 STOCKHOLDERS, HE OWNED 100 OF ITS MORE
THAN TWO MILLION SHARES, SO THAT HIS HOLDINGS, TOGETHER WITH 150 SHARES
HELD BY THE INTERVENOR, APPROXIMATED 0.0125% OF THE OUTSTANDING STOCK
AND HAD A MARKET VALUE THAT HAD NEVER EXCEEDED $9,000. 

THE ACTION WAS BROUGHT IN 1943, AND VARIOUS PROCEEDINGS HAD BEEN
TAKEN THEREIN WHEN, IN 1945, NEW JERSEY ENACTED THE STATUTE WHICH IS
HERE INVOLVED.  FN1  ITS GENERAL EFFECT IS TO MAKE A PLAINTIFF HAVING
SO SMALL AN INTEREST LIABLE FOR THE REASONABLE EXPENSES AND ATTORNEY'S
FEES OF THE DEFENSE IF HE FAILS TO MAKE GOOD HIS COMPLAINT AND TO
ENTITLE THE CORPORATION TO INDEMNITY BEFORE THE CASE CAN BE
PROSECUTED.  THESE CONDITIONS ARE MADE APPLICABLE TO PENDING ACTIONS. 
THE CORPORATE DEFENDANT THEREFORE MOVED TO REQUIRE SECURITY, POINTED TO
ITS BY-LAWS BY WHICH IT MIGHT BE REQUIRED TO INDEMNIFY THE INDIVIDUAL
DEFENDANTS, AND AVERRED THAT A BOND OF $125,000 WOULD BE APPROPRIATE. 

THE DISTRICT COURT WAS OF THE OPINION THAT THE STATE ENACTMENT IS NOT
APPLICABLE TO SUCH AN ACTION WHEN PENDING IN A FEDERAL COURT, 7 F.R.D.
352.  THE COURT OF APPEALS WAS OF A CONTRARY OPINION AND REVERSED, 170
F.2D 44, AND WE GRANTED CERTIORARI.  336 U.S. 917. 

                            APPEALABILITY. 

AT THE THRESHOLD WE ARE MET WITH THE QUESTION WHETHER THE DISTRICT
COURT'S ORDER REFUSING TO APPLY THE STATUTE WAS AN APPEALABLE ONE. 
TITLE 28 U.S.C. SEC. 1291 PROVIDES, AS DID ITS PREDECESSORS, FOR APPEAL
ONLY "FROM ALL FINAL DECISIONS OF THE DISTRICT COURTS," EXCEPT WHEN
DIRECT APPEAL TO THIS COURT IS PROVIDED.  SECTION 1292 ALLOWS APPEALS
ALSO FROM CERTAIN INTERLOCUTORY ORDERS, DECREES AND JUDGMENTS, NOT
MATERIAL TO THIS CASE EXCEPT AS THEY INDICATE THE PURPOSE TO ALLOW
APPEALS FROM ORDERS OTHER THAN FINAL JUDGMENTS WHEN THEY HAVE A FINAL
AND IRREPARABLE EFFECT ON THE RIGHTS OF THE PARTIES.  IT IS OBVIOUS
THAT, IF CONGRESS HAD ALLOWED APPEALS ONLY FROM THOSE FINAL JUDGMENTS
WHICH TERMINATE AN ACTION, THIS ORDER WOULD NOT BE APPEALABLE. 

THE EFFECT OF THE STATUTE IS TO DISALLOW APPEAL FROM ANY DECISION
WHICH IS TENTATIVE, INFORMAL OR INCOMPLETE.  APPEAL GIVES THE UPPER
COURT A POWER OF REVIEW, NOT ONE OF INTERVENTION.  SO LONG AS THE
MATTER REMAINS OPEN, UNFINISHED OR INCONCLUSIVE, THERE MAY BE NO
INTRUSION BY APPEAL.  BUT THE DISTRICT COURT'S ACTION UPON THIS
APPLICATION WAS CONCLUDED AND CLOSED AND ITS DECISION FINAL IN THAT
SENSE BEFORE THE APPEAL WAS TAKEN. 

NOR DOES THE STATUTE PERMIT APPEALS, EVEN FROM FULLY CONSUMMATED
DECISIONS, WHERE THEY ARE BUT STEPS TOWARDS FINAL JUDGMENT IN WHICH
THEY WILL MERGE.  THE PURPOSE IS TO COMBINE IN ONE REVIEW ALL STAGES OF
THE PROCEEDING THAT EFFECTIVELY MAY BE REVIEWED AND CORRECTED IF AND
WHEN FINAL JUDGMENT RESULTS.  BUT THIS ORDER OF THE DISTRICT COURT DID
NOT MAKE ANY STEP TOWARD FINAL DISPOSITION OF THE MERITS OF THE CASE
AND WILL NOT BE MERGED IN FINAL JUDGMENT.  WHEN THAT TIME COMES, IT
WILL BE TOO LATE EFFECTIVELY TO REVIEW THE PRESENT ORDER, AND THE
RIGHTS CONFERRED BY THE STATUTE, IF IT IS APPLICABLE, WILL HAVE BEEN
LOST, PROBABLY IRREPARABLY.  WE CONCLUDE THAT THE MATTERS EMBRACED IN
THE DECISION APPEALED FROM ARE NOT OF SUCH AN INTERLOCUTORY NATURE AS
TO AFFECT, OR TO BE AFFECTED BY, DECISION OF THE MERITS OF THIS CASE. 

THIS DECISION APPEARS TO FALL IN THAT SMALL CLASS WHICH FINALLY
DETERMINE CLAIMS OF RIGHT SEPARABLE FROM, AND COLLATERAL TO, RIGHTS
ASSERTED IN THE ACTION, TOO IMPORTANT TO BE DENIED REVIEW AND TOO
INDEPENDENT OF THE CAUSE ITSELF TO REQUIRE THAT APPELLATE CONSIDERATION
BE DEFERRED UNTIL THE WHOLE CASE IS ADJUDICATED.  THE COURT HAS LONG
GIVEN THIS PROVISION OF THE STATUTE THIS PRACTICAL RATHER THAN A
TECHNICAL CONSTRUCTION.  BANK OF COLUMBIA V. SWEENY, 1 PET. 567, 569;
UNITED STATES V. RIVER ROUGE CO., 269 U.S. 411, 414; COBBLEDICK V.
UNITED STATES, 309 U.S. 323, 328. 

WE HOLD THIS ORDER APPEALABLE BECAUSE IT IS A FINAL DISPOSITION OF A
CLAIMED RIGHT WHICH IS NOT AN INGREDIENT OF THE CAUSE OF ACTION AND
DOES NOT REQUIRE CONSIDERATION WITH IT.  BUT WE DO NOT MEAN THAT EVERY
ORDER FIXING SECURITY IS SUBJECT TO APPEAL.  HERE IT IS THE RIGHT TO
SECURITY THAT PRESENTS A SERIOUS AND UNSETTLED QUESTION.  IF THE RIGHT
WERE ADMITTED OR CLEAR AND THE ORDER INVOLVED ONLY AN EXERCISE OF
DISCRETION AS TO THE AMOUNT OF SECURITY, A MATTER THE STATUTE MAKES
SUBJECT TO RECONSIDERATION FROM TIME TO TIME, APPEALABILITY WOULD
PRESENT A DIFFERENT QUESTION. 

SINCE THIS ORDER MAY BE REVIEWED ON APPEAL, THE PETITION IN NO. 512,
WHEREBY THE CORPORATION ASSERTS THE RIGHT TO COMPEL SECURITY BY
MANDAMUS, IS DISMISSED. 

                          CONSTITUTIONALITY. 

PETITIONERS DENY THE VALIDITY OF THE STATUTE UNDER THE FEDERAL
CONSTITUTION AND THE NEW JERSEY CONSTITUTION.  THE LATTER QUESTION IS
ULTIMATELY FOR THE STATE COURTS, AND SINCE THEY HAVE MADE NO CONTRARY
DETERMINATION, WE SHALL PRESUME IN THE CIRCUMSTANCES OF THIS CASE THAT
THE STATUTE CONFORMS WITH THE STATE CONSTITUTION. 

FEDERAL CONSTITUTIONAL QUESTIONS WE MUST CONSIDER, BECAUSE A FEDERAL
COURT WOULD NOT GIVE EFFECT, IN EITHER A DIVERSITY OR NONDIVERSITY
CASE, TO A STATE STATUTE THAT VIOLATES THE CONSTITUTION OF THE UNITED
STATES. 

THE BACKGROUND OF STOCKHOLDER LITIGATION WITH WHICH THIS STATUTE
DEALS REQUIRES NO MORE THAN GENERAL NOTICE.  AS BUSINESS ENTERPRISE
INCREASINGLY SOUGHT THE ADVANTAGES OF INCORPORATION, MANAGEMENT BECAME
VESTED WITH ALMOST UNCONTROLLED DISCRETION IN HANDLING OTHER PEOPLE'S
MONEY.  THE VAST AGGREGATE OF FUNDS COMMITTED TO CORPORATE CONTROL CAME
TO BE DRAWN TO A CONSIDERABLE EXTENT FROM NUMEROUS AND SCATTERED
HOLDERS OF SMALL INTERESTS.  THE DIRECTOR WAS NOT SUBJECT TO AN
EFFECTIVE ACCOUNTABILITY.  THAT CREATED STRONG TEMPTATION FOR MANAGERS
TO PROFIT PERSONALLY AT EXPENSE OF THEIR TRUST.  THE BUSINESS CODE
BECAME ALL TOO TOLERANT OF SUCH PRACTICES.  CORPORATE LAWS WERE LAX AND
WERE NOT SELF-ENFORCING, AND STOCKHOLDERS, IN FACE OF GRAVEST ABUSES,
WERE SINGULARLY IMPOTENT IN OBTAINING REDRESS OF ABUSES OF TRUST. 

EQUITY CAME TO THE RELIEF OF THE STOCKHOLDER, WHO HAD NO STANDING TO
BRING CIVIL ACTION AT LAW AGAINST FAITHLESS DIRECTORS AND MANAGERS. 
EQUITY% HOWEVER, ALLOWED HIM TO STEP INTO THE CORPORATION'S SHOES AND
TO SEEK IN ITS RIGHT THE RESTITUTION HE COULD NOT DEMAND IN HIS OWN. 
IT REQUIRED HIM FIRST TO DEMAND THAT THE CORPORATION VINDICATE ITS OWN
RIGHTS, BUT WHEN, AS WAS USUAL, THOSE WHO PERPETRATED THE WRONGS ALSO
WERE ABLE TO OBSTRUCT ANY REMEDY, EQUITY WOULD HEAR AND ADJUDGE THE
CORPORATION'S CAUSE THROUGH ITS STOCKHOLDER WITH THE CORPORATION AS A
DEFENDANT, ALBEIT A RATHER NOMINAL ONE.  THIS REMEDY, BORN OF
STOCKHOLDER HELPLESSNESS, WAS LONG THE CHIEF REGULATOR OF CORPORATE
MANAGEMENT AND HAS AFFORDED NO SMALL INCENTIVE TO AVOID AT LEAST
GROSSER FORMS OF BETRAYAL OF STOCKHOLDERS' INTERESTS.  IT IS ARGUED,
AND NOT WITHOUT REASON, THAT WITHOUT IT THERE WOULD BE LITTLE PRACTICAL
CHECK ON SUCH ABUSES. 

UNFORTUNATELY, THE REMEDY ITSELF PROVIDED OPPORTUNITY FOR ABUSE,
WHICH WAS NOT NEGLECTED.  SUITS SOMETIMES WERE BROUGHT NOT TO REDRESS
REAL WRONGS, BUT TO REALIZE UPON THEIR NUISANCE VALUE.  THEY WERE
BOUGHT OFF BY SECRET SETTLEMENTS IN WHICH ANY WRONGS TO THE GENERAL
BODY OF SHARE OWNERS WERE COMPOUNDED BY THE SUING STOCKHOLDER, WHO WAS
MOLLIFIED BY PAYMENTS FROM CORPORATE ASSETS.  THESE LITIGATIONS WERE
APTLY CHARACTERIZED IN PROFESSIONAL SLANG AS "STRIKE SUITS."  AND IT
WAS SAID THAT THESE SUITS WERE MORE COMMONLY BROUGHT BY SMALL AND
IRRESPONSIBLE THAN BY LARGE STOCKHOLDERS, BECAUSE THE FORMER PUT LESS
TO RISK AND A SMALL INTEREST WAS MORE OFTEN WITHIN THE CAPACITY AND
READINESS OF MANAGEMENT TO COMPROMISE THAN A LARGE ONE. 

WE NEED NOT DETERMINE THE MEASURE OF THESE ABUSES OR THE EVILS THEY
PRODUCED ON THE ONE HAND OR PREVENTED AND REDRESSED ON THE OTHER.  THE
LEGISLATURE OF NEW JERSEY, LIKE THAT OF OTHER STATES, FN2  CONSIDERED
THEM SUFFICIENT TO WARRANT SOME REMEDIAL MEASURES. 

THE VERY NATURE OF THE STOCKHOLDER'S DERIVATIVE ACTION MAKES IT ONE
IN THE REGULATION OF WHICH THE LEGISLATURE OF A STATE HAS WIDE POWERS. 
WHATEVER THEORY ONE MAY HOLD AS TO THE NATURE OF THE CORPORATE ENTITY,
IT REMAINS A WHOLLY ARTIFICIAL CREATION WHOSE INTERNAL RELATIONS
BETWEEN MANAGEMENT AND STOCKHOLDERS ARE DEPENDENT UPON STATE LAW AND
MAY BE SUBJECT TO MOST COMPLETE AND PENETRATING REGULATION, EITHER BY
PUBLIC AUTHORITY OR BY SOME FORM OF STOCKHOLDER ACTION.  DIRECTORS AND
MANAGERS, IF NOT TECHNICALLY TRUSTEES, OCCUPY POSITIONS OF A FIDUCIARY
NATURE, AND NOTHING IN THE FEDERAL CONSTITUTION PROHIBITS A STATE FROM
IMPOSING ON THEM THE STRICTEST MEASURE OF RESPONSIBILITY, LIABILITY AND
ACCOUNTABILITY, EITHER AS A CONDITION OF ASSUMING OFFICE OR AS A
CONSEQUENCE OF HOLDING IT. 

LIKEWISE, A STOCKHOLDER WHO BRINGS SUIT ON A CAUSE OF ACTION DERIVED
FROM THE CORPORATION ASSUMES A POSITION, NOT TECHNICALLY AS A TRUSTEE
PERHAPS, BUT ONE OF A FIDUCIARY CHARACTER.  HE SUES, NOT FOR HIMSELF
ALONE, BUT AS REPRESENTATIVE OF A CLASS COMPRISING ALL WHO ARE
SIMILARLY SITUATED.  THE INTERESTS OF ALL IN THE REDRESS OF THE WRONGS
ARE TAKEN INTO HIS HANDS, DEPENDENT UPON HIS DILIGENCE, WISDOM AND
INTEGRITY.  AND WHILE THE STOCKHOLDERS HAVE CHOSEN THE CORPORATE
DIRECTOR OR MANAGER, THEY HAVE NO SUCH ELECTION AS TO A PLAINTIFF WHO
STEPS FORWARD TO REPRESENT THEM.  HE IS A SELF-CHOSEN REPRESENTATIVE
AND A VOLUNTEER CHAMPION.  THE FEDERAL CONSTITUTION DOES NOT OBLIGE THE
STATE TO PLACE ITS LITIGATING AND ADJUDICATING PROCESSES AT THE
DISPOSAL OF SUCH A REPRESENTATIVE, AT LEAST WITHOUT IMPOSING STANDARDS
OF RESPONSIBILITY, LIABILITY AND ACCOUNTABILITY WHICH IT CONSIDERS WILL
PROTECT THE INTERESTS HE ELECTS HIMSELF TO REPRESENT.  IT IS NOT
WITHOUT SIGNIFICANCE THAT THIS COURT HAS FOUND IT NECESSARY LONG AGO IN
THE EQUITY RULES FN3  AND NOW IN THE FEDERAL RULES OF CIVIL PROCEDURE
FN4  TO IMPOSE PROCEDURAL REGULATIONS OF THE CLASS ACTION NOT
APPLICABLE TO ANY OTHER.  WE CONCLUDE THAT THE STATE HAS PLENARY POWER
OVER THIS TYPE OF LITIGATION. 

IN CONSIDERING SPECIFIC OBJECTIONS TO THE WAY IN WHICH THE STATE HAS
EXERCISED ITS POWER IN THIS PARTICULAR STATUTE, IT SHOULD BE
UNNECESSARY TO SAY THAT WE ARE CONCERNED ONLY WITH OBJECTIONS WHICH GO
TO CONSTITUTIONALITY.  THE WISDOM AND THE POLICY OF THIS AND SIMILAR
STATUTES ARE INVOLVED IN CONTROVERSIES AMPLY DEBATED IN LEGAL
LITERATURE N5 BUT NOT FOR US TO JUDGE, AND HENCE NOT FOR US TO REMARK
UPON.  THE FEDERAL CONSTITUTION DOES NOT INVALIDATE STATE LEGISLATION
BECAUSE IT FAILS TO EMBODY THE HIGHEST WISDOM OR PROVIDE THE BEST
CONCEIVABLE REMEDIES.  NOR CAN LEGISLATION BE SET ASIDE BY COURTS
BECAUSE OF THE FACT, IF IT BE SUCH, THAT IT HAS BEEN SPONSORED AND
PROMOTED BY THOSE WHO ADVANTAGE FROM IT.  FN6  IN DEALING WITH SUCH
DIFFICULT AND CONTROVERSIAL SUBJECTS, ONLY EXPERIENCE WILL VERIFY OR
DISCLOSE WEAKNESSES AND DEFECTS OF ANY POLICY AND TEACH LESSONS WHICH
MAY BE APPLIED BY AMENDMENT.  WITHIN THE AREA OF CONSTITUTIONALITY, THE
STATES SHOULD NOT BE RESTRAINED FROM DEVISING EXPERIMENTS, EVEN THOSE
WE MIGHT THINK DUBIOUS, IN THE EFFORT TO PRESERVE THE MAXIMUM GOOD
WHICH EQUITY SOUGHT IN CREATING THE DERIVATIVE STOCKHOLDER'S ACTION AND
AT THE SAME TIME TO ELIMINATE AS MUCH AS POSSIBLE ITS DEFECTS AND
EVILS.    IT IS SAID THAT THIS STATUTE TRANSGRESSES THE DUE PROCESS
CLAUSE BY BEING "ARBITRARY, CAPRICIOUS AND UNREASONABLE"; THE EQUAL
PROTECTION CLAUSE BY SINGLING OUT SMALL STOCKHOLDERS TO BURDEN MOST
HEAVILY; THAT IT VIOLATES THE CONTRACT CLAUSE; AND THAT ITS APPLICATION
TO PENDING LITIGATION RENDERS IT UNCONSTITUTIONALLY RETROACTIVE. 

THE CONTENTION THAT THIS STATUTE VIOLATES THE CONTRACT CLAUSE OF THE
CONSTITUTION IS ONE IN WHICH WE SEE NOT THE SLIGHTEST MERIT. 
PLAINTIFF'S SUIT IS ENTERTAINED BY EQUITY LARGELY BECAUSE HE HAD NO
CONTRACT RIGHTS ON WHICH TO BASE AN ACTION AT LAW, AND HENCE NONE WHICH
IS IMPAIRED BY THIS LEGISLATION. 

IN CONSIDERING WHETHER THE STATUTE OFFENDS THE DUE PROCESS CLAUSE WE
CAN JUDGE IT ONLY BY ITS OWN TERMS, FOR IT HAS HAD NO INTERPRETATION OR
APPLICATION AS YET.  IT IMPOSES LIABILITY AND REQUIRES SECURITY FOR
"THE REASONABLE EXPENSES, INCLUDING COUNSEL FEES, WHICH MAY BE
INCURRED" BY THE CORPORATION AND BY OTHER PARTIES DEFENDANT.  THE
AMOUNT OF SECURITY IS SUBJECT TO INCREASE IF THE PROGRESS OF THE
LITIGATION REVEALS THAT IT IS INADEQUATE, OR TO DECREASE IF IT IS
PROVED TO BE EXCESSIVE.  A STATE MAY SET THE TERMS ON WHICH IT WILL
PERMIT LITIGATIONS IN ITS COURTS.  NO TYPE OF LITIGATION IS MORE
SUSCEPTIBLE OF REGULATION THAN THAT OF A FIDUCIARY NATURE.  AND IT
CANNOT SERIOUSLY BE SAID THAT A STATE MAKES SUCH UNREASONABLE USE OF
ITS POWER AS TO VIOLATE THE CONSTITUTION WHEN IT PROVIDES LIABILITY AND
SECURITY FOR PAYMENT OF REASONABLE EXPENSES IF A LITIGATION OF THIS
CHARACTER IS ADJUDGED TO BE UNSUSTAINABLE.  IT IS URGED THAT SUCH A
REQUIREMENT WILL FORECLOSE RESORT BY MOST STOCKHOLDERS TO THE ONLY
AVAILABLE JUDICIAL REMEDY FOR THE PROTECTION OF THEIR RIGHTS.  OF
COURSE, TO REQUIRE SECURITY FOR THE PAYMENT OF ANY KIND OF COSTS, OR
THE NECESSITY FOR BEARING ANY KIND OF EXPENSE OF LITIGATION, HAS A
DETERRING EFFECT.  BUT WE DEAL WITH POWER, NOT WISDOM; AND WE THINK,
NOTWITHSTANDING THIS TENDENCY, IT IS WITHIN THE POWER OF A STATE TO
CLOSE ITS COURTS TO THIS TYPE OF LITIGATION IF THE CONDITION OF
REASONABLE SECURITY IS NOT MET. 

THE CONTENTION THAT THE STATUTE DENIES EQUAL PROTECTION OF THE LAWS
IS BASED UPON THE FACT THAT IT ENABLES A STOCKHOLDER WHO OWNS 5% OF A
CORPORATION'S OUTSTANDING SHARES, OR $50,000 IN MARKET VALUE, TO
PROCEED WITHOUT EITHER SECURITY OR LIABILITY AND IMPOSES BOTH UPON
THOSE WHO ELECT TO PROCEED WITH A SMALLER INTEREST.  WE DO NOT THINK
THE STATE IS FORBIDDEN TO USE THE AMOUNT OF ONE'S FINANCIAL INTEREST,
WHICH MEASURES HIS INDIVIDUAL INJURY FROM THE MISCONDUCT TO BE
REDRESSED, AS SOME MEASURE OF THE GOOD FAITH AND RESPONSIBILITY OF ONE
WHO SEEKS AT HIS OWN ELECTION TO ACT AS CUSTODIAN OF THE INTERESTS OF
ALL STOCKHOLDERS, AND AS AN INDICATION THAT HE VOLUNTEERS FOR THE LARGE
BURDENS OF THE LITIGATION FROM A REAL SENSE OF GRIEVANCE AND IS NOT
PUTTING FORWARD A CLAIM TO CAPITALIZE PERSONALLY ON ITS HARASSMENT
VALUE.  THESE MAY NOT BE THE BEST WAYS OF PRECLUDING "STRIKE LAWSUITS,"
BUT WE ARE UNABLE TO SAY THAT A CLASSIFICATION FOR THESE PURPOSES,
BASED UPON THE PERCENTAGE OR MARKET VALUE OF THE STOCK ALLEGED TO BE
INJURED BY THE WRONGS, IS AN UNCONSTITUTIONAL ONE.  WHERE ANY
CLASSIFICATION IS BASED ON A PERCENTAGE OR AN AMOUNT, IT IS NECESSARILY
SOMEWHAT ARBITRARY.  IT IS DIFFICULT TO SAY OF MANY LINES DRAWN BY
LEGISLATION THAT THEY GIVE THOSE JUST ABOVE AND THOSE JUST BELOW THE
LINE A PERFECTLY EQUAL PROTECTION.  A TAXPAYER WITH $10,000.01 OF
INCOME DOES NOT THINK IT IS EQUALITY TO TAX HIM AT A DIFFERENT RATE
THAN ONE WHO HAS $9,999.99, OR TO REQUIRE RETURNS FROM ONE JUST ABOVE
AND NOT FROM ONE JUST BELOW A CERTAIN FIGURE.  IT IS DIFFICULT TO SAY
THAT A STOCKHOLDER WHO HAS 49.99% OF A COMPANY'S STOCK SHOULD BE UNABLE
TO ELECT ANY REPRESENTATIVE TO ITS BOARD OF DIRECTORS WHILE ONE WHO
OWNS 50.01% MAY NAME THE ENTIRE BOARD.  IF THERE IS POWER, AS WE THINK
THERE IS, TO DRAW A LINE BASED ON CONSIDERATIONS OF PROPORTION OR
AMOUNT, IT IS A RARE CASE, OF WHICH THIS IS NOT ONE, THAT A
CONSTITUTIONAL OBJECTION MAY BE MADE TO THE PARTICULAR POINT WHICH THE
LEGISLATURE HAS CHOSEN. 

THE CONTENTION ALSO IS MADE THAT THE PROVISION WHICH APPLIES THIS
STATUTE TO ACTIONS PENDING UPON ITS ENACTMENT, IN WHICH NO FINAL
JUDGMENT HAS BEEN ENTERED, RENDERS IT VOID UNDER THE DUE PROCESS CLAUSE
FOR RETROACTIVITY.  WHILE BY ITS TERMS THE STATUTE APPLIES TO PENDING
CASES, IT DOES NOT PROVIDE THE MANNER OF APPLICATION; NOR DO THE NEW
JERSEY COURTS APPEAR TO HAVE SETTLED WHAT ITS EFFECT IS TO BE.  ITS
TERMS DO NOT APPEAR TO REQUIRE AN INTERPRETATION THAT IT CREATES NEW
LIABILITY AGAINST THE PLAINTIFF FOR EXPENSES INCURRED BY THE DEFENSE
PREVIOUS TO ITS ENACTMENT.  THE STATUTE WOULD ADMIT OF A CONSTRUCTION
THAT PLAINTIFF'S LIABILITY BEGINS ONLY FROM THE TIME WHEN THE ACT WAS
PASSED OR PERHAPS WHEN THE CORPORATION'S APPLICATION FOR SECURITY IS
GRANTED AND THAT SECURITY FOR EXPENSES AND COUNSEL FEES WHICH "MAY BE
INCURRED" DOES NOT INCLUDE THOSE WHICH HAVE BEEN INCURRED BEFORE ONE OR
THE OTHER OF THESE PERIODS.  WE WOULD NOT, FOR THE PURPOSE OF
CONSIDERING CONSTITUTIONALITY, CONSTRUE THE STATUTE IN ABSENCE OF A
STATE DECISION AS IMPOSING LIABILITY FOR EVENTS BEFORE ITS ENACTMENT. 
ON THIS BASIS ITS ALLEGED RETROACTIVITY AMOUNTS ONLY TO A STAY OF
FURTHER PROCEEDINGS UNLESS AND UNTIL SECURITY IS FURNISHED FOR EXPENSE
INCURRED IN THE FUTURE, AND DOES NOT EXTEND EITHER TO DESTRUCTION OF AN
EXISTING CAUSE OF ACTION OR TO CREATION OF A NEW LIABILITY FOR PAST
EVENTS. 

THE MERE FACT THAT A STATUTE APPLIES TO A CIVIL ACTION
RETROSPECTIVELY DOES NOT RENDER IT UNCONSTITUTIONAL.  BLOUNT V.
WINDLEY, 95 U.S. 173, 180; WESTERN UNION TELEGRAPH CO. V. L. & N.R.
CO., 258 U.S. 13; CHASE SECURITIES CORP. V. DONALDSON, 325 U.S. 304. 
LOOKING UPON THE STATUTE AS WE HAVE INDICATED, ITS RETROACTIVE EFFECT,
IF ANY, IS CERTAINLY LESS DRASTIC AND PREJUDICIAL THAN THAT HELD NOT TO
BE UNCONSTITUTIONAL IN THESE DECISIONS.  WE DO NOT FIND IN THE BARE
STATUTE ANY SUCH RETROACTIVE EFFECT AS RENDERS IT UNCONSTITUTIONAL
UNDER THE DUE PROCESS CLAUSE, AND OF COURSE WE EXPRESS NO OPINION AS TO
THE EFFECT OF AN APPLICATION OTHER THAN WE HAVE INDICATED. 

IT IS ALSO CONTENDED THAT THIS STATUTE MAY NOT BE APPLIED IN THIS
CASE BECAUSE THE CAUSE OF ACTION DERIVES FROM A DELAWARE CORPORATION
AND HENCE DELAWARE LAW GOVERNS IT.  BUT IT IS THE PLAINTIFF WHO HAS
BROUGHT THE CASE IN NEW JERSEY.  THE TRIAL WILL VERY LIKELY INVOLVE
QUESTIONS OF CONFLICT OF LAWS AS TO WHICH THE LAW OF NEW JERSEY WILL
APPLY, KLAXON CO. V. STENTOR CO., 313 U.S. 487; GRIFFIN V. MCCOACH, 313
U.S. 498, AND PERHAPS QUESTIONS OF FULL FAITH AND CREDIT.  THESE ARE
NOT BEFORE US NOW.  A PLAINTIFF CANNOT AVAIL HIMSELF OF THE NEW JERSEY
FORUM AND AT THE SAME TIME ESCAPE THE TERMS ON WHICH IT IS MADE
AVAILABLE, IF THE LAW IS APPLICABLE TO A FEDERAL COURT SITTING IN THAT
STATE, WHICH WE LATER CONSIDER. 

WE CONCLUDE, THEREFORE, THAT, SO FAR AS THE FEDERAL CONSTITUTION IS
CONCERNED, NEW JERSEY'S SECURITY STATUTE IS A VALID LAW OF THAT STATE
AND THE QUESTION REMAINS AS TO WHETHER IT MUST BE APPLIED BY FEDERAL
COURTS IN THAT STATE TO SUITS BROUGHT THEREIN ON DIVERSITY GROUNDS. 

  APPLICABILITY IN FEDERAL COURT. 

THE RULES OF DECISION ACT, IN EFFECT SINCE THE FIRST CONGRESS OF THE
UNITED STATES AND NOW FOUND AT 28 U.S.C. SEC. 1652, PROVIDES:  "THE
LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE CONSTITUTION OR TREATIES
OF THE UNITED STATES OR ACTS OF CONGRESS OTHERWISE REQUIRE OR PROVIDE,
SHALL BE REGARDED AS RULES OF DECISION IN CIVIL ACTIONS IN THE COURTS
OF THE UNITED STATES, IN CASES WHERE THEY APPLY."  THIS COURT IN ERIE
R. CO. V. TOMPKINS, 304 U.S. 64, HELD THAT JUDICIAL DECISIONS ARE LAWS
OF THE STATES WITHIN ITS MEANING.  BUT ERIE R. CO. V. TOMPKINS AND ITS
PROGENY HAVE WROUGHT A MORE FAR-REACHING CHANGE IN THE RELATION OF
STATE AND FEDERAL COURTS AND THE APPLICATION OF STATE LAW IN THE LATTER
WHEREBY IN DIVERSITY CASES THE FEDERAL COURT ADMINISTERS THE STATE
SYSTEM OF LAW IN ALL EXCEPT DETAILS RELATED TO ITS OWN CONDUCT OF
BUSINESS.  GUARANTY TRUST CO. V. YORK, 326 U.S. 99.  THE ONLY
SUBSTANTIAL ARGUMENT THAT THIS NEW JERSEY STATUTE IS NOT APPLICABLE
HERE IS THAT ITS PROVISIONS ARE MERE RULES OF PROCEDURE RATHER THAN
RULES OF SUBSTANTIVE LAW. 

EVEN IF WE WERE TO AGREE THAT THE NEW JERSEY STATUTE IS PROCEDURAL,
IT WOULD NOT DETERMINE THAT IT IS NOT APPLICABLE.  RULES WHICH LAWYERS
CALL PROCEDURAL DO NOT ALWAYS EXHAUST THEIR EFFECT BY REGULATING
PROCEDURE.  BUT THIS STATUTE IS NOT MERELY A REGULATION OF PROCEDURE. 
WITH IT OR WITHOUT IT THE MAIN ACTION TAKES THE SAME COURSE.  HOWEVER,
IT CREATES A NEW LIABILITY WHERE NONE EXISTED BEFORE, FOR IT MAKES A
STOCKHOLDER WHO INSTITUTES A DERIVATIVE ACTION LIABLE FOR THE EXPENSE
TO WHICH HE PUTS THE CORPORATION AND OTHER DEFENDANTS, IF HE DOES NOT
MAKE GOOD HIS CLAIMS.  SUCH LIABILITY IS NOT USUAL AND IT GOES BEYOND
PAYMENT OF WHAT WE KNOW AS "COSTS."  IF ALL THE ACT DID WAS TO CREATE
THIS LIABILITY, IT WOULD CLEARLY BE SUBSTANTIVE.  BUT THIS NEW
LIABILITY WOULD BE WITHOUT MEANING AND VALUE IN MANY CASES IF IT
RESULTED IN NOTHING BUT A JUDGMENT FOR EXPENSES AT OR AFTER THE END OF
THE CASE.  THEREFORE, A PROCEDURE IS PRESCRIBED BY WHICH THE LIABILITY
IS INSURED BY ENTITLING THE CORPORATE DEFENDANT TO A BOND OF INDEMNITY
BEFORE THE OUTLAY IS INCURRED.  WE DO NOT THINK A STATUTE WHICH SO
CONDITIONS THE STOCKHOLDER'S ACTION CAN BE DISREGARDED BY THE FEDERAL
COURT AS A MERE PROCEDURAL DEVICE. 

IT IS URGED, HOWEVER, THAT FEDERAL RULE OF CIVIL PROCEDURE NO. 23
DEALS WITH PLAINTIFF'S RIGHT TO MAINTAIN SUCH AN ACTION IN FEDERAL
COURT AND THAT THEREFORE THE SUBJECT IS RECOGNIZED AS PROCEDURAL AND
THE FEDERAL RULE ALONE PREVAILS.  RULE 23 REQUIRES THE STOCKHOLDER'S
COMPLAINT TO BE VERIFIED BY OATH AND TO SHOW THAT THE PLAINTIFF WAS A
STOCKHOLDER AT THE TIME OF THE TRANSACTION OF WHICH HE COMPLAINS OR
THAT HIS SHARE THEREAFTER DEVOLVED UPON HIM BY OPERATION OF LAW.  IN
OTHER WORDS, THE FEDERAL COURT WILL NOT PERMIT ITSELF TO BE USED TO
LITIGATE A PURCHASED GRIEVANCE OR BECOME A PARTY TO SPECULATION IN
WRONGS DONE TO CORPORATIONS.  IT ALSO REQUIRES A SHOWING THAT AN ACTION
IS NOT A COLLUSIVE ONE TO CONFER JURISDICTION AND TO SET FORTH THE
FACTS SHOWING THAT THE PLAINTIFF HAS ENDEAVORED TO OBTAIN HIS REMEDY
THROUGH THE CORPORATION ITSELF.  IT FURTHER PROVIDES THAT THE CLASS
ACTION SHALL NOT BE DISMISSED OR COMPROMISED WITHOUT APPROVAL OF THE
COURT, WITH NOTICE TO THE MEMBERS OF THE CLASS.  THESE PROVISIONS
NEITHER CREATE NOR EXEMPT FROM LIABILITIES, BUT REQUIRE COMPLETE
DISCLOSURE TO THE COURT AND NOTICE TO THE PARTIES IN INTEREST.  NONE
CONFLICT WITH THE STATUTE IN QUESTION AND ALL MAY BE OBSERVED BY A
FEDERAL COURT, EVEN IF NOT APPLICABLE IN STATE COURT. 

WE SEE NO REASON WHY THE POLICY STATED IN GUARANTY TRUST CO. V. YORK,
326 U.S. 99, SHOULD NOT APPLY. 

WE HOLD THAT THE NEW JERSEY STATUTE APPLIES IN FEDERAL COURTS AND
THAT THE DISTRICT COURT ERRED IN DECLINING TO FIX THE AMOUNT OF
INDEMNITY REASONABLY TO BE EXACTED AS A CONDITION OF FURTHER
PROSECUTION OF THE SUIT. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  CHAPTER 131, NEW JERSEY LAWS OF 1945, PROVIDES IN PERTINENT PART
AS FOLLOWS: 

"1.  IN ANY ACTION INSTITUTED OR MAINTAINED IN THE RIGHT OF ANY
DOMESTIC OR FOREIGN CORPORATION BY THE HOLDER OR HOLDERS OF SHARES, OR
OF VOTING TRUST CERTIFICATES REPRESENTING SHARES, OF SUCH CORPORATION
HAVING A TOTAL PAR VALUE OR STATED CAPITAL VALUE OF LESS THAN FIVE PER
CENTUM (5%) OF THE AGGREGATE PAR VALUE OF STATED CAPITAL VALUE OF ALL
THE OUTSTANDING SHARES OF SUCH CORPORATION'S STOCK OF EVERY CLASS  ...
UNLESS THE SHARES OR VOTING TRUST CERTIFICATES HELD BY SUCH HOLDER OR
HOLDERS HAVE A MARKET VALUE IN EXCESS OF FIFTY THOUSAND DOLLARS
($50,000.00), THE CORPORATION IN WHOSE RIGHT SUCH ACTION IS BROUGHT
SHALL BE ENTITLED, AT ANY STAGE OF THE PROCEEDING BEFORE FINAL
JUDGMENT, TO REQUIRE THE COMPLAINANT OR COMPLAINANTS TO GIVE SECURITY
FOR THE REASONABLE EXPENSES, INCLUDING COUNSEL FEES, WHICH MAY BE
INCURRED BY IT IN CONNECTION WITH SUCH ACTION AND BY THE OTHER PARTIES
DEFENDANT IN CONNECTION THEREWITH FOR WHICH IT MAY BECOME SUBJECT
PURSUANT TO LAW, ITS CERTIFICATE OF INCORPORATION, ITS BY-LAWS OR UNDER
EQUITABLE PRINCIPLES, TO WHICH THE CORPORATION SHALL HAVE RECOURSE IN
SUCH AMOUNT AS THE COURT HAVING JURISDICTION SHALL DETERMINE UPON THE
TERMINATION OF SUCH ACTION.  THE AMOUNT OF SUCH SECURITY MAY
THEREAFTER, FROM TIME TO TIME, BE INCREASED OR DECREASED IN THE
DISCRETION OF THE COURT HAVING JURISDICTION OF SUCH ACTION UPON SHOWING
THAT THE SECURITY PROVIDED HAS OR MAY BECOME INADEQUATE OR IS
EXCESSIVE. 

"2.  IN ANY ACTION, SUIT OR PROCEEDING BROUGHT OR MAINTAINED IN THE
RIGHT OF A DOMESTIC OR FOREIGN CORPORATION BY THE HOLDER OR HOLDERS OF
SHARES, OR OF VOTING TRUST CERTIFICATES REPRESENTING SHARES, OF SUCH
CORPORATION, IT MUST BE MADE TO APPEAR THAT THE COMPLAINANT WAS A
SHAREHOLDER OR THE HOLDER OF A VOTING TRUST CERTIFICATE AT THE TIME OF
THE TRANSACTION OF WHICH HE COMPLAINS OR THAT HIS SHARE OR VOTING TRUST
CERTIFICATE THEREAFTER DEVOLVED UPON HIM BY OPERATION OF LAW. 

"3.  THIS ACT SHALL TAKE EFFECT IMMEDIATELY AND SHALL APPLY TO ALL
SUCH ACTIONS, SUITS OR PROCEEDINGS NOW PENDING IN WHICH NO FINAL
JUDGMENT HAS BEEN ENTERED, AND TO ALL FUTURE ACTIONS, SUITS AND
PROCEEDINGS." 

FN2  SEE NEW YORK GENERAL CORPORATION LAW, SEC. 61-B; 12 PA. STAT.
ANN. SEC. 1322; LAWS OF MARYLAND, 1945, C. 989; WISCONSIN STAT. SEC.
180.13(1945). 

FN3  OLD EQUITY RULE 94, 104 U.S. IX; EQUITY RULE 27, 226 U.S. 649,
656.    FN4  RULE 23(B). 

FN5  SEE HORNSTEIN, PROBLEMS OF PROCEDURE IN STOCKHOLDER'S DERIVATIVE
SUITS, 42 COL. L.R. 574; HORNSTEIN, DIRECTORS' EXPENSES IN
STOCKHOLDERS' SUITS, 43 ID. 301; KOESSLER, THE STOCKHOLDER'S SUIT:  A
COMPARATIVE VIEW, 46 ID. 238; HORNSTEIN, NEW ASPECTS OF STOCKHOLDERS'
DERIVATIVE SUITS, 47 ID. 1; CARSON, CURRENT PHASES OF DERIVATIVE
ACTIONS AGAINST DIRECTORS, 40 MICH. L.R. 1125; P. E. JACKSON,
REORGANIZATION OF THE CORPORATE CONCEPT AND THE EFFECT OF SECTION 61-B
OF THE NEW YORK GENERAL CORPORATION LAW, A5 AM. BANKR.  REV.  323;
CARSON, FURTHER PHASES OF DERIVATIVE ACTIONS AGAINST DIRECTORS, 29
CORNELL L.Q. 431; HOUSE, STOCKHOLDERS' SUITS AND THE COUDERT-MITCHELL
LAWS, 20 N.Y.U.L.Q. REV. 377; HORNSTEIN, THE DEATH KNELL OF
STOCKHOLDERS' DERIVATIVE SUITS IN NEW YORK, 32 CALIFORNIA L.R. 123;
ZLINKOFF, THE AMERICAN INVESTOR AND THE CONSTITUTIONALITY OF SECTION 61
B OF THE NEW YORK GENERAL CORPORATION LAW, 54 YALE L.J. 352.  SEE
DOUGLAS, DIRECTORS WHO DO NOT DIRECT, 47 HARV. L.R. 1305. 

FN6  DANIEL V. FAMILY INSURANCE CO., 336 U.S. 220. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING IN PART. 

THE CAUSE OF ACTION ON WHICH THIS SUIT IS BROUGHT IS A DERIVATIVE
ONE.  THOUGH IT BELONGS TO THE CORPORATION, THE STOCKHOLDERS ARE
ENTITLED UNDER STATE LAW TO ENFORCE IT.  THE MEASURE OF THE CAUSE OF
ACTION IS THE CLAIM WHICH THE CORPORATION HAS AGAINST THE ALLEGED
WRONGDOERS.  THIS NEW JERSEY STATUTE DOES NOT ADD ONE IOTA TO NOR
SUBTRACT ONE IOTA FROM THAT CAUSE OF ACTION.  IT MERELY PRESCRIBES THE
METHOD BY WHICH STOCKHOLDERS MAY ENFORCE IT.  EACH STATE HAS NUMEROUS
REGULATIONS GOVERNING THE INSTITUTION OF SUITS IN ITS COURTS.  THEY MAY
FAVOR THE LITIGATION OR THEY MAY AFFECT IT ADVERSELY.  BUT THEY DO NOT
FALL UNDER THE PRINCIPLE OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64,
UNLESS THEY DEFINE, QUALIFY OR DELIMIT THE CAUSE OF ACTION OR OTHERWISE
RELATE TO IT. 

THIS NEW JERSEY STATUTE, LIKE STATUTES GOVERNING SECURITY FOR COSTS,
REGULATES ONLY THE PROCEDURE FOR INSTITUTING A PARTICULAR CAUSE OF
ACTION AND HENCE NEED NOT BE APPLIED IN THIS DIVERSITY SUIT IN THE
FEDERAL COURT.  RULE 23 OF THE FEDERAL RULES OF CIVIL PROCEDURE DEFINES
THAT PROCEDURE FOR THE FEDERAL COURTS. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I AM IN ACCORD WITH THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN
THIS CASE.  I ALSO AGREE WITH THE DISSENTING VIEWS OF MR. JUSTICE
JACKSON IN NO. 465, WOODS V. INTERSTATE REALTY CO., ANTE, P. 538,
DECIDED TODAY.  AND I HAVE NOTED MY DISSENT IN NO. 522, RAGAN V.
MERCHANTS TRANSFER & WAREHOUSE CO., ANTE, P. 530, ALSO DECIDED TODAY. 

WITHOUT UNDERTAKING TO DISCUSS EACH CASE IN DETAIL, I THINK THE THREE
DECISIONS TAKEN TOGETHER DEMONSTRATE THE EXTREME EXTENT TO WHICH THE
COURT IS GOING IN SUBMITTING THE CONTROL OF DIVERSITY LITIGATION IN THE
FEDERAL COURTS TO THE STATES RATHER THAN TO CONGRESS, WHERE IT PROPERLY
BELONGS.  THIS IS DONE IN THE GUISE OF APPLYING THE RULE OF ERIE R. CO.
V. TOMPKINS, 304 U.S. 64.  BUT IN MY OPINION IT WAS NEVER THE PURPOSE
OF THAT DECISION TO PUT SUCH MATTERS AS THOSE INVOLVED HERE OUTSIDE THE
POWER OF CONGRESS TO REGULATE AND TO CONFER THAT AUTHORITY EXCLUSIVELY
UPON THE STATES. 

WHAT IS BEING APPLIED IS A GLOSS ON THE ERIE RULE, NOT THE RULE
ITSELF.  THAT CASE HELD THAT FEDERAL COURTS IN DIVERSITY CASES MUST
APPLY STATE LAW, DECISIONAL AS WELL AS STATUTORY, IN DETERMINING
MATTERS OF SUBSTANTIVE LAW, IN PARTICULAR AND APART FROM PROCEDURAL
LIMITATIONS UPON ITS ASSERTION - WHETHER A CAUSE OF ACTION EXISTS.  I
ACCEPT THAT VIEW GENERALLY AND INSOFAR AS IT INVOLVES A WISE RULE OF
ADMINISTRATION FOR THE FEDERAL COURTS, THOUGH I HAVE GRAVE DOUBT THAT
IT HAS ANY SOLID CONSTITUTIONAL FOUNDATION. 

BUT THE ERIE CASE MADE NO RULING THAT IN SO DECIDING DIVERSITY CASES
A FEDERAL COURT IS "MERELY ANOTHER COURT OF THE STATE IN WHICH IT
SITS," AND HENCE THAT IN EVERY SITUATION IN WHICH THE DOORS OF STATE
COURTS ARE CLOSED TO A SUITOR, SO MUST BE ALSO THOSE OF THE FEDERAL
COURTS.  NOT ONLY IS THIS NOT TRUE WHEN THE STATE BAR IS RAISED BY A
PURELY PROCEDURAL OBSTACLE.  THERE IS SOUND HISTORICAL REASON FOR
BELIEVING THAT ONE OF THE PURPOSES OF THE DIVERSITY CLAUSE WAS TO
AFFORD A FEDERAL COURT REMEDY WHEN, FOR AT LEAST SOME REASONS OF STATE
POLICY, NONE WOULD BE AVAILABLE IN THE STATE COURTS.  IT IS THE GLOSS
WHICH HAS BEEN PUT UPON THE ERIE RULING BY LATER DECISIONS, E.G.,
GUARANTY TRUST CO. V. YORK, 326 U.S. 99, WHICH IN MY OPINION IS BEING
APPLIED TO EXTEND THE ERIE RULING FAR BEYOND ITS ORIGINAL PURPOSE OR
INTENT AND, IN MY JUDGMENT, WITH CONSEQUENCES AND IMPLICATIONS
SERIOUSLY IMPAIRING CONGRESS' POWER, WITHIN ITS PROPER SPHERE OF
ACTION, TO CONTROL THIS TYPE OF LITIGATION IN THE FEDERAL COURTS. 

THE ACCEPTED DICHOTOMY IS THE FAMILIAR "PROCEDURAL-SUBSTANTIVE" ONE. 
THIS OF COURSE IS A SUBJECT OF ENDLESS DISCUSSION, WHICH HARDLY NEEDS
TO BE REPEATED HERE.  SUFFICE IT TO SAY THAT ACTUALLY IN MANY
SITUATIONS PROCEDURE AND SUBSTANCE ARE SO INTERWOVEN THAT RATIONAL
SEPARATION BECOMES WELL-NIGH IMPOSSIBLE.  BUT, EVEN SO, THIS FACT
CANNOT DISPENSE WITH THE NECESSITY OF MAKING A DISTINCTION.  FOR, AS
THE MATTER STANDS, IT IS CONGRESS WHICH HAS THE POWER TO GOVERN THE
PROCEDURE OF THE FEDERAL COURTS IN DIVERSITY CASES, AND THE STATES
WHICH HAVE THAT POWER OVER MATTERS CLEARLY SUBSTANTIVE IN NATURE. 
JUDGES THEREFORE CANNOT ESCAPE MAKING THE DIVISION.  AND THEY MUST MAKE
IT WHERE THE TWO CONSTITUENT ELEMENTS ARE SIAMESE TWINS AS WELL AS
WHERE THEY ARE NOT TWINS OR EVEN BLOOD BROTHERS.  THE REAL QUESTION IS
NOT WHETHER THE SEPARATION SHALL BE MADE, BUT HOW IT SHALL BE MADE:
WHETHER MECHANICALLY BY REFERENCE TO WHETHER THE STATE COURTS' DOORS
ARE OPEN OR CLOSED, OR BY A CONSIDERATION OF THE POLICIES WHICH CLOSE
THEM AND THEIR RELATION TO ACCOMMODATING THE POLICY OF THE ERIE RULE
WITH CONGRESS' POWER TO GOVERN THE INCIDENTS OF LITIGATION IN DIVERSITY
SUITS. 

IT IS IN THESE CLOSE CASES, THIS BORDERLAND AREA, THAT I THINK WE ARE
GOING TOO FAR.  IT IS ONE THING TO DECIDE THAT PENNSYLVANIA DOES OR
DOES NOT CREATE A CAUSE OF ACTION IN TORT FOR INJURIES INFLICTED BY
SPECIFIED CONDUCT AND TO HAVE THAT DETERMINATION GOVERN THE OUTCOME OF
A DIVERSITY SUIT IN PENNSYLVANIA OR NEW YORK.  FN1  IT IS ANOTHER, IN
MY VIEW, TO REQUIRE A BOND FOR COSTS OR FOR PAYMENT OF THE OPPOSING
PARTY'S EXPENSES AND ATTORNEY'S FEES IN THE EVENT THE CLAIMANT IS
UNSUCCESSFUL.  WHETHER OR NOT THE LATTER IS CONCEIVED AS CREATING A NEW
SUBSTANTIVE RIGHT, IT IS TOO CLOSE TO CONTROLLING THE INCIDENTS OF THE
LITIGATION RATHER THAN ITS OUTCOME TO BE IDENTIFIED WITH THE FORMER. 
IT IS A MATTER WHICH IN MY OPINION LIES WITHIN CONGRESS' CONTROL FOR
DIVERSITY CASES, NOT ONE FOR STATE CONTROL OR TO BE GOVERNED BY THE
FACT THAT THE STATE SHUTS THE DOORS OF ITS COURTS UNLESS THE STATE
REQUIREMENTS CONCERNING SUCH INCIDENTS OF LITIGATION ARE COMPLIED
WITH. 

IN MY VIEW RULE 23 OF THE FEDERAL RULES OF CIVIL PROCEDURE, DERIVED
FROM THE FORMER EQUITY RULES AND NOW HAVING THE SANCTION OF CONGRESS,
IS VALID AND GOVERNS IN THE COHEN CASE.  IF, HOWEVER, THE STATE OF NEW
JERSEY HAS THE POWER TO GOVERN FEDERAL DIVERSITY SUITS WITHIN ITS
BORDERS AS TO ALL MATTERS HAVING A SUBSTANTIVE TINGE OR ASPECT, THEN IT
MAY BE QUESTIONED WHETHER, IN THE EVENT OF CONFLICT WITH SOME LOCAL
POLICY, A FEDERAL COURT SITTING IN THAT STATE COULD GIVE EFFECT TO THE
RULE'S REQUIREMENT THAT THE COMPLAINT AVER "THAT THE PLAINTIFF WAS A
SHAREHOLDER AT THE TIME OF THE TRANSACTION OF WHICH HE COMPLAINS OR
THAT HIS SHARE THEREAFTER DEVOLVED ON HIM BY OPERATION OF LAW  ...  "
FOR IN ANY STRICT AND ABSTRACT SENSE THAT PROVISION WOULD SEEM TO BE AS
MUCH A "SUBSTANTIVE" ONE AS THE NEW JERSEY REQUIREMENTS FOR BOND, ETC.
AND, IF SO, THEN IT WOULD SEEM HIGHLY DOUBTFUL, ON ANY AUTOMATIC OR
MECHANICAL APPLICATION OF THE SUBSTANTIVE-PROCEDURAL DICHOTOMY, THAT
EITHER CONGRESS OR THIS COURT COULD CREATE SUCH A LIMITATION ON
DIVERSITY LITIGATION, SINCE AS A SUBSTANTIVE MATTER THIS WOULD BE FOR
THE STATES TO CONTROL.  SEE 3 MOORE, FEDERAL PRACTICE (2D ED., 1948)
3493-3506. 

FOR MYSELF I HAVE NO DOUBT OF THE VALIDITY OF RULE 23 OR OF THE POWER
OF CONGRESS TO ENACT SUCH A RULE, EVEN THOUGH IT HAS A SUBSTANTIVE
ASPECT.  NOTWITHSTANDING THAT ASPECT, THE RULE IS TOO CLOSELY RELATED
TO PROCEDURAL AND OTHER MATTERS AFFECTING LITIGATION IN THE FEDERAL
COURTS FOR ME TO CONCEIVE OF ITS INVALIDITY.  SO ALSO IN THE PRESENT
CASES I THINK THE STATE REGULATIONS, THOUGH EACH MAY BE REGARDED AS
HAVING A SUBSTANTIVE ASPECT, ARE TOO CLOSELY RELATED TO THE MODES AND
METHODS OF CONDUCTING LITIGATION IN THE FEDERAL COURTS TO BE CAPABLE OF
DISPLACING CONGRESS' POWER OF REGULATION IN THOSE RESPECTS OR THE
FEDERAL COURTS' POWER TO HEAR AND DETERMINE THE RESPECTIVE
CONTROVERSIES. 

ACCORDINGLY I WOULD REVERSE THE JUDGMENTS IN THE COHEN AND RAGAN
CASES AND AFFIRM THAT IN THE WOODS CASE. 

FN1  IT MAY BE NOTED THAT THE DISPOSITION OF THE LOCAL LAW PROBLEM
APPARENTLY PRESENTED IN ERIE WAS NOT CONSISTENT, EITHER HERE OR ON
REMAND, WITH THE CURRENT VIEW THAT A FEDERAL DISTRICT COURT IS REQUIRED
TO TREAT A DIVERSITY CASE EXACTLY AS WOULD A STATE COURT OF THE STATE
IN WHICH THE DISTRICT COURT IS SITTING:  THE ERIE CASE AROSE OUT OF AN
ALLEGED PENNSYLVANIA TORT, AND THIS COURT STATED THAT THE COURT OF
APPEALS HAD ERRED WHEN IT "DECLINED TO DECIDE THE ISSUE OF STATE LAW,"
304 U.S. AT 80 - I.E., "THE PENNSYLVANIA LAW."  IBID.  BUT THE ERIE
CASE WAS INITIATED BY TOMPKINS, "A CITIZEN OF PENNSYLVANIA  ...  IN THE
FEDERAL COURT FOR SOUTHERN NEW YORK, WHICH HAD JURISDICTION BECAUSE THE
COMPANY IS A CORPORATION OF THAT STATE."  304 U.S. AT 69.  ACCORDINGLY,
AS ERIE IS NOW CONSTRUED, THE ISSUE ON REMAND SHOULD HAVE BEEN WHAT LAW
A NEW YORK STATE COURT WOULD HAVE APPLIED TO THE PENNSYLVANIA TORT. 
BUT THE SOLE ISSUE DETERMINED ON REMAND WAS THE APPLICABLE PENNSYLVANIA
LAW, WITHOUT MENTION OF THE PROBABLE ATTITUDE OF THE NEW YORK COURTS. 
TOMPKINS V. ERIE R. CO., 98 F.2D 49.  IT WAS NOT UNTIL AFTER JUSTICE
BRANDEIS HAD RETIRED THAT THIS COURT HELD THAT FEDERAL DISTRICT COURTS
WERE REQUIRED TO FOLLOW LOCAL CONFLICT OF LAWS DOCTRINE IN THE
RESOLUTION OF DIVERSITY CASES.  KLAXON CO. V. STENTOR CO., 313 U.S.
487. 
..END :







WHEELING STEEL CORP. V. GLANDER, 337 U.S. 562 


ARGUED MARCH 29, 1949.  - DECIDED JUNE 20, 1949.  - 150 OHIO ST. 229, 80
N.E.2D 863, REVERSED. 


CERTAIN FOREIGN CORPORATIONS WHICH HAD BEEN AUTHORIZED TO DO BUSINESS
IN OHIO AND WHICH OPERATED MANUFACTURING PLANTS THERE HAD THEIR
PRINCIPAL PLACES OF BUSINESS IN OTHER STATES, WHERE ALL ORDERS WERE
ACCEPTED, CREDITS EXTENDED, BOOKS KEPT AND WHERE ALL ACCOUNTS
RECEIVABLE WERE PAYABLE.  THE CORPORATIONS HAD PAID ALL FRANCHISE TAXES
AND ALL TAXES ON REAL AND PERSONAL PROPERTY LOCATED WITHIN OHIO.  IN
ADDITION, THE STATE LEVIED AN AD VALOREM TAX ON THEIR ACCOUNTS
RECEIVABLE DERIVED FROM SALES OF GOODS MANUFACTURED WITHIN THE STATE. 
THE ACCOUNTS RECEIVABLE WERE NOT USED IN THE CONDUCT OF THE BUSINESS OF
THE CORPORATIONS IN OHIO, BUT IN THEIR GENERAL BUSINESS.  ACCOUNTS
RECEIVABLE OF IDENTICAL NATURE WHICH WERE OWNED BY RESIDENTS AND
DOMESTIC CORPORATIONS WERE EXEMPT FROM THE TAX.  HELD: 

1.  THE TAX DENIED THE FOREIGN CORPORATIONS THE EQUAL PROTECTION OF
THE LAWS, IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION.  PP. 563-574. 

(A)  AFTER A STATE HAS CHOSEN TO ADMIT FOREIGN CORPORATIONS TO DO
BUSINESS WITHIN IT, THEY ARE ENTITLED TO EQUAL PROTECTION WITH DOMESTIC
CORPORATIONS, AT LEAST TO THE EXTENT THAT THEIR PROPERTY IS ENTITLED TO
AN EQUALLY FAVORABLE AD VALOREM TAX BASIS.  PP. 571-572. 

(B)  THE INEQUALITY TO WHICH THE FOREIGN CORPORATIONS ARE SUBJECTED
IS NOT BASED ON OHIO'S RELATION TO THE DECISIVE TRANSACTION, BUT SOLELY
ON DIFFERENCE IN RESIDENCE OF THE OWNER OF THE ACCOUNTS RECEIVABLE.  P.
572. 

2.  THE TAX WAS NOT SAVED FROM CONSTITUTIONAL INVALIDITY BY THE
"RECIPROCITY" PROVISIONS OF THE STATUTE IMPOSING IT, SINCE THE PLAN OF
RECIPROCITY IS NOT ONE WHICH BY CREDITS OR OTHERWISE PROTECTS THE
NONRESIDENT OR FOREIGN CORPORATION AGAINST THE DISCRIMINATIONS APPARENT
IN THE OHIO STATUTE.  PP. 572-574. 

WHEELING STEEL CORP. V. GLANDER, TAX COMMISSIONER OF OHIO. 

NO. 447.  APPEAL FROM THE SUPREME COURT OF OHIO.* 

*TOGETHER WITH NO. 448, NATIONAL DISTILLERS PRODUCTS CORP. V.
GLANDER, TAX COMMISSIONER OF OHIO, ON APPEAL FROM THE SAME COURT,
ARGUED MARCH 30, 1949. 

AN OHIO AD VALOREM TAX ON FOREIGN CORPORATIONS, CHALLENGED AS
VIOLATING THE FEDERAL CONSTITUTION, WAS SUSTAINED BY THE STATE SUPREME
COURT.  150 OHIO ST. 229, 80 N.E.2D 863.  ON APPEALS TO THIS COURT,
REVERSED, P. 574. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE STATE OF OHIO HAS LAID AN AD VALOREM TAX AGAINST CERTAIN
INTANGIBLE PROPERTY, CONSISTING OF NOTES, ACCOUNTS RECEIVABLE AND
PREPAID INSURANCE, OWNED BY FOREIGN CORPORATIONS.  AS APPLIED TO
APPELLANTS IN THESE TWO CASES, THE TAX IS CHALLENGED AS VIOLATING THE
FEDERAL CONSTITUTION ON SEVERAL GROUNDS WHICH MAY CONVENIENTLY BE
CONSIDERED IN A SINGLE OPINION.  FACTS ARE NOT IN DISPUTE. 

APPELLANT WHEELING STEEL CORPORATION IS ORGANIZED UNDER THE LAWS OF
DELAWARE, WHERE IT MAINTAINS A STATUTORY OFFICE.  OHIO HAS AUTHORIZED
IT TO DO BUSINESS IN THAT STATE AND FOUR OF ITS EIGHT MANUFACTURING
PLANTS ARE LOCATED THERE.  GENERAL OFFICES, FROM WHICH ITS ENTIRE
BUSINESS IS CONTROLLED AND CONDUCTED, ARE IN WHEELING, WEST VIRGINIA. 
ITS OFFICERS THERE HAVE CUSTODY OF ITS MONEY, NOTES AND BOOKS OF
ACCOUNT.  IN TWELVE OTHER STATES, INCLUDING OHIO, IT MAINTAINS SALES
OFFICES WHICH SOLICIT AND RECEIVE ORDERS FOR ITS PRODUCTS SUBJECT TO
ACCEPTANCE OR REJECTION AT THE WHEELING OFFICE, TO WHICH ALL ARE
FORWARDED.  FROM THIS OFFICE ONLY MAY CREDIT BE EXTENDED TO
PURCHASERS.  ACCOUNTS ARE BILLED AND COLLECTED FROM THE WHEELING OFFICE
AND THE SALES OFFICES HAVE NO POWERS OR DUTIES WITH RESPECT TO
COLLECTION.  ALL ACCOUNTS OR NOTES RECEIVABLE ARE PAYABLE AT WHEELING,
WHERE THE WRITTEN EVIDENCES THEREOF ARE KEPT.  PROCEEDS FROM
RECEIVABLES ARE TAKEN INTO APPELLANT'S TREASURY AT WHEELING AND THERE
APPLIED TO GENERAL PURPOSES OF THE BUSINESS. 

APPELLANT NATIONAL DISTILLERS PRODUCTS CORPORATION IS ORGANIZED UNDER
THE LAWS OF VIRGINIA, WHERE IT HAS A STATUTORY OFFICE AND HOLDS ANNUAL
STOCKHOLDERS MEETINGS.  IT IS ADMITTED TO DO BUSINESS IN OHIO, WHERE IT
MAINTAINS A DISTILLERY, OR RECTIFYING PLANT, AND WAREHOUSE, AS IT DOES
ALSO IN SIX OTHER STATES.  PAY ROLL CHECKS FOR PLANT EMPLOYEES ARE
DRAWN ON FUNDS DEPOSITED IN BANKS IN THE LOCALITY OF THE PLANT. 
APPELLANT ALSO IS LICENSED TO DO BUSINESS IN NEW YORK, WHERE IT
MAINTAINS ITS PRINCIPAL BUSINESS OFFICE AND CONDUCTS ITS FISCAL AFFAIRS
AND FROM WHICH ALL BUSINESS ACTIVITIES ARE DIRECTED AND CONTROLLED. 
THE CORPORATION MAINTAINS REGIONAL SALES OFFICES IN VARIOUS OF THOSE
STATES WHICH PERMIT PRIVATE DISTRIBUTION OF LIQUOR.  IN SUCH STATES
CUSTOMERS ARE SOLICITED AND ORDERS TAKEN, SUBJECT TO ACCEPTANCE OR
REJECTION AT NEW YORK.  IT MAINTAINS NO SALES OFFICE IN OHIO, WHERE
DISPENSING LIQUOR IS A STATE MONOPOLY.  ORDERS FROM OHIO STATE
AUTHORITIES ARE FORWARDED DIRECTLY TO THE OFFICES IN NEW YORK AND ARE
SUBJECT TO ACCEPTANCE OR REJECTION THERE.  WHEN THE NEW YORK OFFICE
ACCEPTS AN ORDER FROM ANY SOURCE, IT SENDS SHIPPING ORDERS TO VARIOUS
PLANTS, NONE OF WHICH MAKES ANY SHIPMENTS EXCEPT UPON SUCH ORDERS. 
ONLY IN NEW YORK CAN ANY CREDITS BE APPROVED AND ALL BOOKS, RECORDS AND
EVIDENCES OF ACCOUNTS RECEIVABLE ARE KEPT THERE.  COLLECTIONS ARE
MANAGED FROM NEW YORK, WHICH IS THE PLACE OF PAYMENT OF ALL
RECEIVABLES.  DURING THE TAX YEAR IN QUESTION, THE CORPORATION
SOLICITED AND TOOK ORDERS THROUGH AGENTS IN STATES OTHER THAN OHIO FOR
A LARGE QUANTITY OF LIQUOR SHIPPED FROM ITS PLANTS AND WAREHOUSES IN
OHIO TO CUSTOMERS ELSEWHERE. 

IT IS STIPULATED THAT APPELLANTS EACH PAID ALL FRANCHISE OR OTHER
TAXES REQUIRED BY OHIO FOR ADMISSION TO DO BUSINESS IN THE STATE AND
PAID ALL TAXES ASSESSED UPON REAL AND PERSONAL PROPERTY LOCATED IN SAID
STATE. 

THE WHEELING COMPANY ALSO PAID TO THE STATE OF WEST VIRGINIA, FOR THE
YEAR IN QUESTION, AD VALOREM TAXES ON ALL OF ITS RECEIVABLES, INCLUDING
THOSE SOUGHT TO BE TAXED BY OHIO, PURSUANT TO THIS COURT'S DECISION IN
WHEELING STEEL CORP. V. FOX, 298 U.S. 193.  NEITHER VIRGINIA NOR NEW
YORK HAS SOUGHT TO TAX THE ACCOUNTS RECEIVABLE OF NATIONAL DISTILLERS
INVOLVED HEREIN. 

THE OHIO TAX COMMISSIONER, APPLYING SECS. 5328-1 AND 5328-2 OF THE
GENERAL CODE OF OHIO,  FN1 ASSESSED FOR TAXATION IN OHIO A LARGE AMOUNT
OF NOTES AND ACCOUNTS RECEIVABLE WHICH EACH APPELLANT DERIVED FROM
SHIPMENTS ORIGINATING AT OHIO MANUFACTURING PLANTS.  THE SPECIFIC
GROUND STATED FOR ASSESSMENT WAS THAT SUCH RECEIVABLES "RESULT FROM THE
SALE OF PROPERTY FROM A STOCK OF GOODS MAINTAINED WITHIN THIS STATE." 

THE BOARD OF TAX APPEALS AFFIRMED BOTH ASSESSMENTS AND IN THE
DISTILLER'S CASE SET FORTH THE ABOVE-MENTIONED STATUTES AND POINTED OUT
WHEREIN ITS OWN VIEWS AND PRACTICES AS TO THEIR APPLICATION TO ACCOUNTS
RECEIVABLE HAD BEEN MODIFIED BY DECISIONS OF THE OHIO SUPREME COURT,
WHOSE INTERPRETATIONS, FOR OUR PURPOSES, BECOME A PART OF THE
STATUTES.  THE BOARD SAID: 

"  ...  ON A CONSIDERATION OF THE STATUTORY PROVISIONS ABOVE NOTED,
THE BOARD OF TAX APPEALS WAS OF THE VIEW THAT BEFORE A BUSINESS SITUS
OF ACCOUNTS RECEIVABLE AND OTHER INTANGIBLE PROPERTY, FOR PURPOSES OF
TAXATION, COULD BE GIVEN TO A STATE OTHER THAN THE STATE OF THE
DOMICILE OF THE TAXPAYER, IT MUST APPEAR THAT SUCH RECEIVABLES OR OTHER
INTANGIBLE PROPERTY NOT ONLY AROSE IN THE CONDUCT OF THE BUSINESS OF
THE TAXPAYER IN SUCH OTHER STATE, BUT WERE THEREIN SO USED AS TO BECOME
AN INTEGRAL PART OF THE BUSINESS CARRIED ON IN SUCH OTHER STATE; AND
THAT IT WAS NOT SUFFICIENT THAT SUCH ACCOUNTS RECEIVABLE AND OTHER
INTANGIBLE PROPERTY BE USED IN BUSINESS GENERALLY BY THE TAXPAYER.  AND
ON THIS VIEW THE BOARD HELD THAT THE ACCOUNTS RECEIVABLE THERE IN
QUESTION, ALTHOUGH THEY AROSE IN THE CONDUCT OF TAXPAYER'S BUSINESS IN
THE STATES OF INDIANA AND MICHIGAN, DID NOT HAVE A BUSINESS SITUS IN
SUCH STATES, AND THAT SUCH ACCOUNTS RECEIVABLE WERE TAXABLE IN OHIO. 

"ON THE APPEAL OF THE DECISION OF THE BOARD OF TAX APPEALS IN THE
RANSOM & RANDOLPH CO. CASE TO THE SUPREME COURT OF OHIO, THAT COURT
REVERSED THE DECISION OF THE BOARD OF TAX APPEALS UPON THE POINT ABOVE
INDICATED.  142 O.S. 398, 404.  THAT COURT, UPON CONSIDERATION OF THE
APPLICABLE PROVISIONS OF SECTION 5328-2 AND RELATED SECTIONS OF THE
GENERAL CODE ABOVE NOTED, HELD THAT THE ACCOUNTS RECEIVABLE OF A
TAXPAYER WHICH AROSE IN THE CONDUCT OF ITS BUSINESS IN A STATE OR
STATES OTHER THAN THE STATE IN WHICH IT HAD ITS DOMICILE OR PLACE OF
RESIDENCE, HAD A BUSINESS SITUS IN SUCH OTHER STATE OR STATES IF SUCH
ACCOUNTS RECEIVABLE OR THE AVAILS THEREOF ARE BEING APPLIED OR ARE
INTENDED TO BE APPLIED IN THE CONDUCT OF THE TAXPAYER'S BUSINESS,
WHETHER IN THIS STATE OR ELSEWHERE.  THIS VIEW OF THE SUPREME COURT AS
TO THE CONSTRUCTION TO BE PLACED UPON THE STATUTORY PROVISIONS HERE IN
QUESTION WAS LATER FOLLOWED BY THAT COURT IN ITS DECISIONS IN THE CASES
OF THE HAVERFIELD COMPANY V. EVATT, TAX COMMR., 143 O.S. 58, AND
NATIONAL CASH REGISTER COMPANY V. EVATT, TAX COMMER., 145 O.S. 597. 

"  ...  IN THIS SITUATION, AND APPLYING THE STATUTORY PROVISIONS HERE
IN QUESTION AS THE SAME HAVE BEEN CONSTRUED BY THE SUPREME COURT OF
THIS STATE, IT FOLLOWS THAT SINCE THE ACCOUNTS RECEIVABLE OF THE
APPELLANT CORPORATION INVOLVED IN THIS CASE AROSE - AS THIS BOARD
HEREBY FIND - , IN THE CONDUCT OF ITS BUSINESS IN THE STATE OF OHIO BY
THE SALE OF ITS PRODUCTS FROM A STOCK OF GOODS LOCATED IN THIS STATE,
AND SINCE, FURTHER, SUCH ACCOUNTS RECEIVABLE OR THE AVAILS THEREOF WERE
USED OR WERE INTENDED TO BE USED BY THE APPELLANT IN ITS BUSINESS,
WHETHER IN THIS STATE OR ELSEWHERE, SUCH ACCOUNTS RECEIVABLE HAVE A
BUSINESS AND TAXABLE SITUS IN THE STATE OF OHIO, AS FOUND AND
DETERMINED BY THE TAX COMMISSIONER. 

"WITH RESPECT TO A QUESTION SUCH AS THAT HERE PRESENTED, TO WIT, THAT
AS TO THE TAXATION OF THE ACCOUNTS RECEIVABLE OF A FOREIGN CORPORATION
ARISING IN THE CONDUCT OF ITS BUSINESS IN THIS STATE, THE APPLICATION
OF THE ABOVE NOTED PROVISIONS OF SECTIONS 5328-1, 5328-2 AND OTHER
RELATED SECTIONS OF THE GENERAL CODE, AS THE SAME HAVE BEEN CONSTRUED
BY THE SUPREME COURT, PRESENTS, TO OUR MIND, A SERIOUS QUESTION AS TO
THE CONSTITUTIONALITY OF SAID STATUTORY PROVISIONS AS SO CONSTRUED
UNDER THE DUE PROCESS OF LAW CLAUSE OF THE FEDERAL CONSTITUTION.  ...
" 

THE OHIO SUPREME COURT AFFIRMED IN BOTH CASES,  FN2  WHICH WERE
BROUGHT HERE BY APPEALS.  FN3 

APPELLANTS URGE THAT THE QUESTION WHICH THE BOARD OF TAX APPEALS
REGARDED AS SERIOUS SHOULD BE RESOLVED AGAINST THE STATE ON THE GROUND
THAT THESE INTANGIBLES HAD NO SITUS IN OHIO TO SUSTAIN ITS POWER UNDER
THE DUE PROCESS CLAUSE SO TO TAX THEM AND ALSO THAT TO DO SO IMPOSES AN
UNDUE BURDEN ON INTERSTATE COMMERCE IN VIOLATION OF THE COMMERCE
CLAUSE.  THEY POINT OUT THAT THE CREDITS SOUGHT TO BE TAXED HERE WERE
NOT CREATED IN OHIO, NOT PAYABLE THERE, AND NEITHER THE PAYOR NOR
PAYEE, DEBTOR NOR CREDITOR, WAS RESIDENT THERE.  MOREOVER, THE
RECEIVABLES AROSE FROM A CONTRACT FOR SALE OF GOODS, BUT THE CONTRACTS
WERE NOT MADE IN OHIO NOR PERFORMED IN OHIO, AND NEITHER BUYER NOR
SELLER RESIDED THERE.  ON THE ASSUMPTION THAT OHIO COULD NOT FOLLOW
TANGIBLE GOODS INTO A FOREIGN STATE AND TAX THEM, EITHER IN THE HANDS
OF THE VENDOR BEFORE DELIVERY OR IN THE HANDS OF A VENDEE AFTER
DELIVERY, IT IS ARGUED THAT SHE HAS NO GREATER POWER TO TAX INTANGIBLES
SUBSTITUTED IN A FOREIGN STATE FOR THEM AND HAS NO RIGHT TO TAX
INTANGIBLE PROCEEDS OF THE SALE OF TANGIBLE GOODS THAT HAD PASSED
BEYOND HER TAXING POWER. 

IN THEIR ORIGINAL APPLICATION OF THE STATUTORY SCHEME THE TAXING
AUTHORITIES SOUGHT TO OVERCOME THIS HURDLE BY REQUIRING AN ADDITIONAL
AND MORE SUBSTANTIAL CONNECTION BETWEEN THE TAXED INTANGIBLES AND THE
STATE TAXING POWER.  FOR PURPOSE OF AN OHIO TAX THE BOARD OF TAX
APPEALS HELD INTANGIBLES TO HAVE A SITUS IN THAT STATE ONLY WHEN AND TO
THE EXTENT "SO USED AS TO BECOME AN INTEGRAL PART OF THE BUSINESS
CARRIED ON" IN OHIO.  IT WAS THIS REQUIREMENT WHICH THE SUPREME COURT
OF THE STATE ELIMINATED BY RANSOM & RANDOLPH CO. V. EVATT, 142 OHIO ST.
398, 52 N.E.2D 738, WHEN IT HELD THAT ANY USE OF THE INTANGIBLES IN THE
GENERAL BUSINESS WAS SUFFICIENT TO MAKE THEM TAXABLE.  THUS WAS CUT THE
CONNECTION WHICH THE BOARD OF TAX APPEALS ORIGINALLY INVOKED TO CONFER
JURISDICTION TO TAX, AND THUS WAS RAISED THE QUESTION OF
CONSTITUTIONALITY REGARDED BY THE BOARD AS SERIOUS. 

HOWEVER, WE FIND IT INAPPROPRIATE TO DECIDE THE DUE PROCESS
QUESTION.  THE STATE ACTION, WHICH IS REVIEWABLE UNDER THE FOURTEENTH
AMENDMENT, IS THE COMPOSITE RESULT OF BOTH LEGISLATION AND ITS JUDICIAL
INTERPRETATION.  OHIO DOES NOT ATTEMPT AND HAS NOT ASSERTED POWER TO
TAX ALL SUCH INTANGIBLES, BUT ONLY THOSE OWNED BY NONRESIDENTS AND
FOREIGN CORPORATIONS.  IT HAS GIVEN NO INDICATION THAT IT INTENDS TO OR
WOULD REACH OUT TO TAX SUCH INTANGIBLES AS WE HAVE HERE UNLESS IT MAY
AT THE SAME TIME EXEMPT IDENTICAL ONES OWNED BY ITS RESIDENTS AND
DOMESTIC CORPORATIONS.  THE CONTRARY IS INDICATED BY SEC. 5328-2, WHICH
MAKES THE TWO INSEPARABLE.  WE DEAL WITH THE TAXING PLAN AS AN ENTIRETY
AS WE FIND IT IN OPERATION AND PASS ONLY ON THE CONSTITUTIONALITY OF
THAT WHICH THE STATE HAS ASSERTED POWER AND PURPOSE TO DO. 

THE STATE ACTION AND POLICY RESULTING FROM STATUTE AND DECISIONS IS
CERTIFIED TO US BY THE APPELLEE, THE TAX COMMISSIONER OF OHIO, TO BE AS
FOLLOWS: 

" ...  SINCE THE DECISION OF THE SUPREME COURT OF OHIO IN RANSOM &
RANDOLPH V. EVATT, 142 OHIO STATE 398(JANUARY 12, 1944), AND IN
OBEDIENCE THERETO, IT HAS BEEN THE POLICY AND PRACTICE OF THE
DEPARTMENT OF TAXATION OF OHIO TO CONSTRUE AND APPLY SECTIONS 5328-1
AND 5328-2 OF THE GENERAL CODE OF OHIO 

"(A)  SO AS TO EXEMPT FROM TAXATION IN OHIO ACCOUNTS RECEIVABLE OF
OHIO RESIDENTS, INCLUDING DOMESTIC CORPORATIONS, WHICH ARISE 

"(1) FROM A SALE OF GOODS BY AN AGENT HAVING AN OFFICE IN ANOTHER
STATE, EVEN THOUGH SUCH GOODS BE SHIPPED FROM OHIO, OR 

"(2) FROM A SALE OF GOODS SHIPPED FROM ANOTHER STATE, EVEN THOUGH
SUCH GOODS BE SOLD BY AN AGENT HAVING AN OFFICE IN OHIO: 

"(B)  SO AS TO TAX IN OHIO ACCOUNTS RECEIVABLE OF NON-RESIDENTS OF
OHIO, INCLUDING FOREIGN CORPORATIONS, WHICH ARISE EITHER 

"(1)  FROM A SALE OF GOODS SHIPPED FROM OHIO, EVEN THOUGH SUCH GOODS
BE SOLD BY AN AGENT HAVING AN OFFICE IN ANOTHER STATE, OR 

"(2)  FROM A SALE OF GOODS BY AN AGENT HAVING AN OFFICE IN OHIO, EVEN
THOUGH SUCH GOODS BE SHIPPED FROM ANOTHER STATE: 

"THAT THE FOREGOING HAVE BEEN IN EFFECT AS THE ONLY TESTS OF
TAXABILITY OF ACCOUNTS RECEIVABLE IN OHIO SINCE THE DECISION OF THE
SUPREME COURT OF OHIO IN THE CASE OF RANSOM & RANDOLPH V. EVATT, 142
OHIO STATE 398, AND THAT SAID TESTS HAVE BEEN APPLIED WITHOUT DEVIATION
BOTH BY AFFIANT AND BY HIS PREDECESSOR IN OFFICE, WILLIAM S. EVATT, AS
THE RESULT OF THE HOLDING IN THAT CASE." 

UNDER LONG-SETTLED PRINCIPLES OF OUR FEDERATION, OHIO WAS NOT
REQUIRED TO ADMIT THESE FOREIGN CORPORATIONS TO CARRY ON INTRASTATE
BUSINESS WITHIN ITS BORDERS.  THE STATE MAY ARBITRARILY EXCLUDE THEM OR
MAY LICENSE THEM UPON ANY TERMS IT SEES FIT, APART FROM EXACTING
SURRENDER OF RIGHTS DERIVED FROM THE CONSTITUTION OF THE UNITED
STATES.  HANOVER INSURANCE CO. V. HARDING, 272 U.S. 494, 507;
CONNECTICUT GENERAL CO. V. JOHNSON, 303 U.S. 77, 79-80.  OHIO ELECTED,
HOWEVER, TO ADMIT THESE CORPORATIONS TO TRANSACT BUSINESSES AND OPERATE
MANUFACTURING PLANTS IN THE STATE.  FOR THAT PRIVILEGE THEY HAVE PAID
ALL THAT THE STATE REQUIRED BY WAY OF FRANCHISE OR PRIVILEGE TAX, WHICH
INCLUDES IN ITS MEASURE THE VALUE OF ALL PROPERTY OWNED AND BUSINESS
DONE IN OHIO.  SECS. 5495, 5497, 5498 AND 5499 OF THE OHIO GENERAL
CODE.  SEE INTERNATIONAL HARVESTER CO. V. EVATT, 329 U.S. 461.  AFTER A
STATE HAS CHOSEN TO DOMESTICATE FOREIGN CORPORATIONS, THE ADOPTED
CORPORATIONS ARE ENTITLED TO EQUAL PROTECTION WITH THE STATE'S OWN
CORPORATE PROGENY, AT LEAST TO THE EXTENT THAT THEIR PROPERTY IS
ENTITLED TO AN EQUALLY FAVORABLE AD VALOREM TAX BASIS.  HANOVER
INSURANCE CO. V. HARDING, 272 U.S. 494, 510-511; POWER CO. V. SAUNDERS,
274 U.S. 490, 493, 497.  OHIO HOLDS THIS TAX ON INTANGIBLES TO BE AN AD
VALOREM PROPERTY TAX, BENNETT V. EVATT, 145 OHIO ST. 587, 62 N.E.2D
345, AND IN NO SENSE A FRANCHISE, PRIVILEGE, OCCUPATION OR INCOME TAX. 

THE OHIO STATUTORY SCHEME ASSIMILATES ITS OWN CORPORATE CREATIONS TO
NATURAL RESIDENTS AND ALL OTHERS TO NONRESIDENTS.  WHILE THIS
CLASSIFICATION IS A PERMISSIBLE BASIS FOR SOME DIFFERENT RIGHTS AND
LIABILITIES, WE HAVE HELD, AS TO TAXATION OF INTANGIBLES, THAT THE
FEDERAL RIGHT OF A NONRESIDENT "IS THE RIGHT TO EQUAL TREATMENT." 
HILLSBOROUGH V. CROMWELL, 326 U.S. 620, 623. 

THE CERTIFICATE OF THE TAX COMMISSIONER DISCLOSES HOW FUNDAMENTALLY
DISCRIMINATORY IS THE APPLICATION OF THIS AD VALOREM TAX TO INTANGIBLES
WHEN OWNED BY A RESIDENT OR A DOMESTIC CORPORATION AS CONTRASTED WITH
ITS APPLICATION WHEN THOSE ARE OWNED BY A DOMESTICATED CORPORATION OR A
NONRESIDENT.  IF ON THE TAXING DATE ONE OF THESE PETITIONERS AND AN
OHIO COMPETITOR EACH OWNS AN ACCOUNT RECEIVABLE OF THE SAME AMOUNT FROM
THE SAME OUT-OF-STATE CUSTOMER FOR THE SAME KIND OF COMMODITY, BOTH
SHIPPED FROM A MANUFACTURING PLANT IN OHIO AND BOTH SOLD OUT OF OHIO BY
AN AGENT HAVING AN OFFICE OUT OF THE STATE, APPELLANT'S ACCOUNT
RECEIVABLE WOULD BE SUBJECT TO OHIO'S AD VALOREM TAX AND THE ONE HELD
BY THE COMPETING DOMESTIC CORPORATION WOULD NOT.  IT SEEMS OBVIOUS THAT
APPELLANTS ARE NOT ACCORDED EQUAL TREATMENT, AND THE INEQUALITY IS NOT
BECAUSE OF THE SLIGHTEST DIFFERENCE IN OHIO'S RELATION TO THE DECISIVE
TRANSACTION, BUT SOLELY BECAUSE OF THE DIFFERENT RESIDENCE OF THE
OWNER. 

THE STATE DOES NOT SERIOUSLY DENY THIS UNEQUAL APPLICATION OF ITS OWN
TAX BUT CLAIMS THAT RECIPROCITY PROVISIONS OF THE STATUTE REESTABLISH
EQUALITY.  THOSE PROVISIONS THEREFORE REQUIRE SCRUTINY. 

THIS ENTIRE TAXING PLAN RESTS ON A STATUTORY FORMULA FOR FIXING SITUS
OF INTANGIBLE PROPERTY BOTH WITHIN AND WITHOUT THE STATE.  THIS IS
PROVIDED BY SEC. 5328-2 OF THE CODE.  THESE INTANGIBLES "SHALL BE
CONSIDERED TO ARISE OUT OF BUSINESS TRANSACTED IN A STATE OTHER THAN
THAT IN WHICH THE OWNER THEREOF RESIDES" UNDER CERTAIN CIRCUMSTANCES. 
THIS BASIC RULE SEPARATES THE SITUS OF INTANGIBLES FROM THE RESIDENCE
OF THEIR OWNER WHEREAS IT HAS TRADITIONALLY BEEN AT SUCH RESIDENCE,
THOUGH WITH SOME EXCEPTIONS.  THE EFFECT IS THAT INTANGIBLES OF
NONRESIDENT OWNERS ARE ASSIGNED A SITUS WITHIN THE TAXING REACH OF OHIO
WHILE THOSE OF ITS RESIDENTS ARE ASSIGNED A SITUS WITHOUT.  THE PLAN
MAY BE SAID TO BE LOGICALLY CONSISTENT IN THAT, WHILE IT DRAWS ALL SUCH
INTANGIBLES OF NON-RESIDENTS WITHIN THE TAXING POWER OF OHIO, IT BY THE
SAME FORMULA EXCLUDES THOSE OF RESIDENTS.  THE EXEMPTED INTANGIBLES OF
RESIDENTS ARE OFFERED UP TO THE TAXING POWER OF OTHER STATES WHICH MAY
EMBRACE THIS DOCTRINE OF A TAX SITUS SEPARATE FROM RESIDENCE.  THIS IS
WHAT IS MEANT HERE BY RECIPROCITY, AND THE TWO PROVISIONS ARE DECLARED
INSEPARABLE; SO THAT IF THE FORMULA BY WHICH OHIO TAKES UNTO ITSELF THE
ACCOUNTS OF NONRESIDENTS IS HELD INVALID, "SUCH DECISION SHALL BE
DEEMED ALSO TO AFFECT SUCH PROVISION AS APPLIED TO PROPERTY OF A
RESIDENT." 

IT IS HARD TO SEE THAT THIS OFFER OF RECIPROCITY RESTORES TO
APPELLANTS ANY OF THE EQUALITY WHICH THE APPLICATION OF THE OHIO TAX,
CONSIDERED ALONE, SO OBVIOUSLY DENIES.  THERE IS NO INDICATION OF A
READINESS BY OTHER STATES TO COPY OHIO'S SITUS SCHEME SO AS TO TAX THAT
WHICH OHIO EXEMPTS.  THE PROFFERED EXCHANGE OF RESIDENTS FOR INTANGIBLE
TAX PURPOSES MAY NOT COMMEND ITSELF AS AN EVEN BARGAIN BETWEEN STATES. 
OHIO, BEING LARGE, POPULOUS AND HIGHLY INDUSTRIALIZED, WITH HEAVY AND
BASIC INDUSTRIES, MAY WELL HAVE MUCH MORE TO GAIN FROM A PLAN THE
EFFECT OF WHICH IS TO TAX CREDIT EXPORTS TO OTHER STATES, THAN MOST
STATES WOULD HAVE FROM A PRIVILEGE TO TAX ITS OWN EXPORTS INTO OHIO. 
IN THE SEVERAL YEARS THAT THE OHIO STATUTE HAS BEEN ON THE BOOKS, NO
OTHER STATE HAS SOUGHT TO TAKE ADVANTAGE OF THE "RECIPROCITY" PROFFER. 
AND IF IT DID, THE EQUALITY OF RATES WHICH WOULD ALSO BE NECESSARY TO
EQUALIZE THE BURDEN BETWEEN NONRESIDENTS AND THEIR RESIDENT COMPETITORS
COULD BE HARDLY EXPECTED NOR IS IT PROVIDED FOR.  FAR FROM ACCEDING TO
THE SITUS DOCTRINE WHICH ALLOCATES THESE RECEIVABLES TO OHIO, THE STATE
OF WEST VIRGINIA STANDS ON THE VERY DIFFERENT SITUS DOCTRINE APPROVED
BY THIS COURT IN WHEELING STEEL CORP. V. FOX, 298 U.S. 193, AND UNDER
ITS AUTHORITY HAS FOR THE YEAR IN QUESTION TAXED ALL OF THE RECEIVABLES
OF THE WHEELING COMPANY, INCLUDING THOSE OHIO SEEKS TO CLAIM AS HAVING
SITUS IN OHIO.  IT IS CLEAR THAT THIS PLAN OF "RECIPROCITY" IS NOT ONE
WHICH BY CREDITS OR OTHERWISE PROTECTS THE NONRESIDENT OR FOREIGN
CORPORATION AGAINST THE DISCRIMINATIONS APPARENT IN THE OHIO STATUTE. 
WE THINK THESE DISCRIMINATIONS DENY APPELLANTS EQUAL PROTECTION OF OHIO
LAW. 

THE JUDGMENTS ARE REVERSED AND THE CAUSES REMANDED FOR PROCEEDINGS
NOT INCONSISTENT HEREWITH.  REVERSED. 

FN1  PERTINENT PARTS OF THE OHIO LAW READ AS FOLLOWS: 

"SEC. 5328-1.  ...  PROPERTY OF THE KINDS AND CLASSES MENTIONED IN
TRANSACTED IN THIS STATE BY, FOR OR ON BEHALF OF A NON-RESIDENT PERSON
...  SHALL BE SUBJECT TO TAXATION; AND ALL SUCH PROPERTY OF PERSONS
RESIDING IN THIS STATE USED IN AND ARISING OUT OF BUSINESS TRANSACTED
OUTSIDE OF THIS STATE BY, FOR OR ON BEHALF OF SUCH PERSONS  ...  SHALL
NOT BE SUBJECT TO TAXATION.  ... 

  .         .         .         .         . 

"SEC. 5328-2.  ...  PROPERTY OF THE KINDS AND CLASSES HEREIN
MENTIONED, WHEN USED IN BUSINESS, SHALL BE CONSIDERED TO ARISE OUT OF
BUSINESS TRANSACTED IN A STATE OTHER THAN THAT IN WHICH THE OWNER
THEREOF RESIDES IN THE CASES AND UNDER THE CIRCUMSTANCES FOLLOWING: 

"IN THE CASE OF ACCOUNTS RECEIVABLE, WHEN RESULTING FROM THE SALE OF
PROPERTY SOLD BY AN AGENT HAVING AN OFFICE IN SUCH OTHER STATE OR FROM
A STOCK OF GOODS MAINTAINED THEREIN, OR FROM SERVICES PERFORMED BY AN
OFFICER, AGENT OR EMPLOYE CONNECTED WITH, SENT FROM, OR REPORTING TO
ANY OFFICER OR AT ANY OFFICE LOCATED IN SUCH OTHER STATE. 

     .         .         .      .         . 

"THE PROVISIONS OF THIS SECTION SHALL BE RECIPROCALLY APPLIED, TO THE
END THAT ALL PROPERTY OF THE KINDS AND CLASSES MENTIONED IN THIS
NO PROPERTY OF SUCH KINDS AND CLASSES BELONGING TO A PERSON RESIDING IN
THIS STATE AND HAVING A BUSINESS SITUS OUTSIDE OF THIS STATE SHALL BE
TAXED.  IT IS HEREBY DECLARED THAT THE ASSIGNMENT OF A BUSINESS SITUS
OUTSIDE OF THIS STATE TO PROPERTY OF A PERSON RESIDING IN THIS STATE IN
ANY CASE AND UNDER ANY CIRCUMSTANCES MENTIONED IN THIS SECTION IS
INSEPARABLE FROM THE ASSIGNMENT OF SUCH SITUS IN THIS STATE TO PROPERTY
OF A PERSON RESIDING OUTSIDE OF THIS STATE IN A LIKE CASE AND UNDER
SIMILAR CIRCUMSTANCES.  ...  " 

"SEC. 5325-1.  ...  MONEYS, DEPOSITS, INVESTMENTS, ACCOUNTS
RECEIVABLE AND PREPAID ITEMS, AND OTHER TAXABLE INTANGIBLES SHALL BE
CONSIDERED TO BE 'USED' WHEN THEY OR THE AVAILS THEREOF ARE BEING
APPLIED, OR ARE INTENDED TO BE APPLIED IN THE CONDUCT OF THE BUSINESS,
WHETHER IN THIS STATE OR ELSEWHERE.  ... 

.         .         .         .         . 

"SEC. 5638.  ...  ANNUAL TAXES ARE HEREBY LEVIED ON THE KINDS AND
CLASSES OF INTANGIBLE PROPERTY, HEREINAFTER ENUMERATED, ON THE
CLASSIFIED TAX LIST IN THE OFFICES OF THE COUNTY AUDITORS AND
DUPLICATES THEREOF IN THE OFFICES OF THE COUNTY TREASURERS AT THE
FOLLOWING RATES, TO WIT: 

"  ...  MONEYS, CREDITS AND ALL OTHER TAXABLE INTANGIBLES SO LISTED,
THREE MILLS ON THE DOLLAR.  ...  " 

"SEC. 5327.  ...  THE TERM 'CREDITS' AS SO USED, MEANS THE EXCESS OF
THE SUM OF ALL CURRENT ACCOUNTS RECEIVABLE AND PREPAID ITEMS (USED) IN
BUSINESS WHEN ADDED TOGETHER ESTIMATING EVERY SUCH ACCOUNT AND ITEM AT
ITS TRUE VALUE IN MONEY, OVER AND ABOVE THE SUM OF CURRENT ACCOUNTS
PAYABLE OF THE BUSINESS, OTHER THAN TAXES AND ASSESSMENTS.  ..."  OHIO
GEN. CODE ANN. (1945). 

FN2  150 OHIO ST. 229, 80 N.E.2D 863. 

FN3  28 U.S.C. SEC. 1257(2). 

BY MR. JUSTICE JACKSON. 

THE WRITER OF THE COURT'S OPINION DEEMS IT NECESSARY TO COMPLETE THE
RECORD BY POINTING OUT WHY, IN WRITING BY ASSIGNMENT FOR THE COURT, HE
ASSUMED WITHOUT DISCUSSION THAT THE PROTECTIONS OF THE FOURTEENTH
AMENDMENT ARE AVAILABLE TO A CORPORATION.  IT WAS NOT QUESTIONED BY THE
STATE IN THIS CASE, NOR WAS IT CONSIDERED BY THE COURTS BELOW.  IT HAS
CONSISTENTLY BEEN HELD BY THIS COURT THAT THE FOURTEENTH AMENDMENT
ASSURES CORPORATIONS EQUAL PROTECTION OF THE LAWS, AT LEAST SINCE 1886,
SANTA CLARA COUNTY V. SOUTHERN PACIFIC R. CO., 118 U.S. 394, 396, AND
THAT IT ENTITLES THEM TO DUE PROCESS OF LAW, AT LEAST SINCE 1889,
MINNEAPOLIS & ST. L.R. CO. V. BECKWITH, 129 U.S. 26, 28. 

IT IS TRUE THAT THIS PROPOSITION WAS ONCE CHALLENGED BY ONE JUSTICE. 
CONNECTICUT GENERAL CO. V. JOHNSON, 303 U.S. 77, 83(DISSENTING
OPINION).  BUT THE CHALLENGE DID NOT COMMEND ITSELF, EVEN TO SUCH
CONSISTENT LIBERALS AS MR. JUSTICE BRANDEIS AND MR. JUSTICE STONE, AND
I HAD SUPPOSED IT WAS NO LONGER PRESSED.  SEE THE SAME JUSTICE'S
SEPARATE OPINION IN INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310,
322, MAKING NO MENTION OF THIS ISSUE. 

WITHOUT PRETENDING TO A COMPLETE ANALYSIS, I FIND THAT IN AT LEAST
TWO CASES DURING THIS CURRENT TERM THE SAME QUESTION WAS APPROPRIATE
FOR CONSIDERATION, AS HERE.  IN RAILWAY EXPRESS AGENCY V. NEW YORK, 336
U.S. 106, A CORPORATION CLAIMED TO BE DEPRIVED OF BOTH DUE PROCESS AND
EQUAL PROTECTION OF THE LAW, AND IN OTT V. MISSISSIPPI BARGE LINE, 336
U.S. 169, A CORPORATION CLAIMED TO BE DENIED DUE PROCESS OF LAW.  AT
PRIOR TERMS, IN MANY CASES THE QUESTION WAS ALSO INHERENT, FOR
CORPORATIONS MADE SIMILAR CLAIMS UNDER THE FOURTEENTH AMENDMENT.  SEE
E.G., ILLINOIS CENTRAL R. CO. V. MINNESOTA, 309 U.S. 157; LINCOLN LIFE
INSURANCE CO. V. READ, 325 U.S. 673; QUEENSIDE HILLS CO. V. SAXL, 328
U.S. 80.  ALTHOUGH THE AUTHOR OF THE PRESENT DISSENT WAS THE WRITER OF
EACH OF THE CITED COURT'S OPINIONS, IT WAS NOT INTIMATED THEREIN THAT
THERE WAS EVEN DOUBT WHETHER THE CORPORATIONS HAD STANDING TO RAISE THE
QUESTIONS OR WERE ENTITLED TO PROTECTION OF THE AMENDMENT.  INSTEAD, IN
EACH CASE THE AUTHOR, AS I HAVE DONE IN THIS CASE, PROCEEDED TO DISCUSS
AND DISPOSE OF THE CORPORATION'S CONTENTIONS ON THEIR MERITS, A QUITE
IMPROPER PROCEDURE, I SHOULD THINK, IF THE CORPORATION HAD NO STANDING
TO RAISE THE CONSTITUTIONAL QUESTIONS.  INDEED, IF THE CORPORATION HAD
NO SUCH RIGHT, IT IS DIFFICULT TO SEE HOW THIS COURT WOULD HAVE
JURISDICTION TO CONSIDER THE CASE AT ALL. 

IT MAY BE SAID THAT IN THE FOREGOING CASES OTHER GROUNDS MIGHT HAVE
BEEN FOUND UPON WHICH TO DEFEAT THE CORPORATIONS' CLAIMS, WHILE IN THE
PRESENT CASE APPARENTLY THERE IS NONE. 

HOWEVER, IN AT LEAST TWO CASES THIS COURT, JOINED BY BOTH JUSTICES
NOW ASSERTING THAT CORPORATIONS HAVE NO RIGHTS UNDER THE FOURTEENTH
AMENDMENT, RECENTLY HAS GRANTED RELIEF TO CORPORATIONS BY STRIKING DOWN
STATE ACTION AS CONFLICTING WITH CORPORATE RIGHTS UNDER THAT
AMENDMENT.  IN TIMES-MIRROR CO. V. SUPERIOR COURT, COMPANION CASE TO
BRIDGES V. CALIFORNIA, 314 U.S. 252, A NEWSPAPER CORPORATION PERSUADED
THIS COURT THAT A $500 FINE ASSESSED AGAINST IT VIOLATED ITS RIGHTS
UNDER THE FOURTEENTH AMENDMENT.  IN PENNEKAMP V. FLORIDA, 328 U.S. 331,
A NEWSPAPER CORPORATION WAS CONVICTED ALONG WITH AN INDIVIDUAL
DEFENDANT, AND THIS COURT SET ASIDE THE CONVICTION UPON THE GROUND THAT
THE FOURTEENTH AMENDMENT PROHIBITED SUCH STATE ACTION.  IN NEITHER OF
THESE CASES WAS THE CORPORATION'S RIGHT TO RAISE THE ISSUE QUESTIONED
AND THE RESULT IN EACH CASE WAS IRRECONCILABLE WITH THE POSITION NOW
ASSERTED IN DISSENT. 

IT CANNOT BE SUGGESTED THAT IN CASES WHERE THE AUTHOR IS THE MERE
INSTRUMENT OF THE COURT HE MUST FOREGO EXPRESSION OF HIS OWN
CONVICTIONS.  MR. JUSTICE CARDOZO TAUGHT US HOW JUSTICES MAY WRITE FOR
THE COURT AND STILL RESERVE THEIR OWN POSITIONS, THOUGH OVERRULED. 
HELVERING V. DAVIS, 301 U.S. 619, 639. 

IN VIEW OF THIS RECORD I DID NOT, AND STILL DO NOT, CONSIDER IT
NECESSARY FOR THE COURT OPINION TO REVIEW THE CONSIDERATIONS WHICH
JUSTIFY THE ASSUMPTION THAT THESE CORPORATIONS HAVE STANDING TO RAISE
THE ISSUES DECIDED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

IT HAS BEEN IMPLICIT IN ALL OF OUR DECISIONS SINCE 1886 THAT A
CORPORATION IS A "PERSON" WITHIN THE MEANING OF THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  SANTA CLARA COUNTY V. SOUTHERN
PAC. R. CO., 118 U.S. 394, 396, SO HELD.  THE COURT WAS CRYPTIC IN ITS
DECISION.  IT WAS SO SURE OF ITS GROUND THAT IT WROTE NO OPINION ON THE
POINT, CHIEF JUSTICE WAITE ANNOUNCING FROM THE BENCH:    "THE COURT
DOES NOT WISH TO HEAR ARGUMENT ON THE QUESTION WHETHER THE PROVISION IN
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION, WHICH FORBIDS A STATE TO
DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE
LAWS, APPLIES TO THESE CORPORATIONS.  WE ARE ALL OF OPINION THAT IT
DOES." 

THERE WAS NO HISTORY, LOGIC, OR REASON GIVEN TO SUPPORT THAT VIEW. 
NOR WAS THE RESULT SO OBVIOUS THAT EXPOSITION WAS UNNECESSARY. 

THE FOURTEENTH AMENDMENT BECAME A PART OF THE CONSTITUTION IN 1868. 
IN 1871 A CORPORATION CLAIMED THAT LOUISIANA HAD IMPOSED ON IT A TAX
THAT VIOLATED THE EQUAL PROTECTION CLAUSE OF THE NEW AMENDMENT.  MR.
JUSTICE WOODS (THEN CIRCUIT JUDGE) HELD THAT "PERSON" AS THERE USED DID
NOT INCLUDE A CORPORATION AND ADDED, "THIS CONSTRUCTION OF THE SECTION
IS STRENGTHENED BY THE HISTORY OF THE SUBMISSION BY CONGRESS, AND THE
ADOPTION BY THE STATES OF THE 14TH AMENDMENT, SO FRESH IN ALL MINDS AS
TO NEED NO REHEARSAL."  INSURANCE CO. V. NEW ORLEANS, 1 WOODS 85, 88. 

WHAT WAS OBVIOUS TO MR. JUSTICE WOODS IN 1871 WAS STILL PLAIN TO THE
COURT IN 1873.  MR. JUSTICE MILLER IN THE SLAUGHTER-HOUSE CASES, 16
WALL.  36, 71, ADVERTED TO EVENTS "ALMOST TOO RECENT TO BE CALLED
HISTORY" TO SHOW THAT THE PURPOSE OF THE AMENDMENT WAS TO PROTECT HUMAN
RIGHTS - PRIMARILY THE RIGHTS OF A RACE WHICH HAD JUST WON ITS
FREEDOM.  AND AS RESPECTS THE EQUAL PROTECTION CLAUSE HE STATED, "THE
EXISTENCE OF LAWS IN THE STATES WHERE THE NEWLY EMANCIPATED NEGROES
RESIDED, WHICH DISCRIMINATED WITH GROSS INJUSTICE AND HARDSHIP AGAINST
THEM AS A CLASS, WAS THE EVIL TO BE REMEDIED BY THIS CLAUSE, AND BY IT
SUCH LAWS ARE FORBIDDEN."  P. 81. 

MOREOVER WHAT WAS CLEAR TO THESE EARLIER JUDGES WAS APPARENTLY PLAIN
TO THE PEOPLE WHO VOTED TO MAKE THE FOURTEENTH AMENDMENT A PART OF OUR
CONSTITUTION.  FOR AS MR. JUSTICE BLACK POINTED OUT IN HIS DISSENT IN
CONNECTICUT GENERAL CO. V. JOHNSON, 303 U.S. 77, 87, THE SUBMISSION OF
THE AMENDMENT TO THE PEOPLE WAS ON THE BASIS THAT IT PROTECTED HUMAN
BEINGS.  THERE WAS NO SUGGESTION IN ITS SUBMISSION THAT IT WAS DESIGNED
TO PUT NEGROES AND CORPORATIONS INTO ONE CLASS AND SO DILUTE THE POLICE
POWER OF THE STATES OVER CORPORATE AFFAIRS.  ARTHUR TWINING HADLEY ONCE
WROTE THAT "THE FOURTEENTH AMENDMENT WAS FRAMED TO PROTECT THE NEGROES
FROM OPPRESSION BY THE WHITES, NOT TO PROTECT CORPORATIONS FROM
OPPRESSION BY THE LEGISLATURE.  IT IS DOUBTFUL WHETHER A SINGLE ONE OF
THE MEMBERS OF CONGRESS WHO VOTED FOR IT HAD ANY IDEA THAT IT WOULD
TOUCH THE QUESTION OF CORPORATE REGULATION AT ALL."  FN1 

BOTH MR. JUSTICE WOODS IN INSURANCE CO. V. NEW ORLEANS, SUPRA, P. 88,
AND MR. JUSTICE BLACK IN HIS DISSENT IN CONNECTICUT GENERAL CO. V.
JOHNSON, SUPRA, PP. 88-89, HAVE SHOWN HOW STRAINED A CONSTRUCTION IT IS
OF THE FOURTEENTH AMENDMENT SO TO HOLD.  SECTION 1 OF THE AMENDMENT
PROVIDES: 

"ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND SUBJECT TO
THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE
STATE WHEREIN THEY RESIDE.  NO STATE SHALL MAKE OR ENFORCE ANY LAW
WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE
UNITED STATES; NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY,
OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS." 

"PERSONS" IN THE FIRST SENTENCE PLAINLY INCLUDES ONLY HUMAN BEINGS,
FOR CORPORATIONS ARE NOT "BORN OR NATURALIZED." 

CORPORATIONS ARE NOT "CITIZENS" WITHIN THE MEANING OF THE FIRST
CLAUSE OF THE SECOND SENTENCE.  WESTERN TURF ASSN. V. GREENBERG, 204
U.S. 359, 363; SELOVER, BATES & CO. V. WALSH, 226 U.S. 112, 126.  FN2 

IT HAS NEVER BEEN HELD THAT THEY ARE PERSONS WHOM A STATE MAY NOT
DEPRIVE OF "LIFE" WITHIN THE MEANING OF THE SECOND CLAUSE OF THE SECOND
SENTENCE. 

"LIBERTY" IN THAT CLAUSE IS "THE LIBERTY OF NATURAL, NOT ARTIFICIAL,
PERSONS."  WESTERN TURF ASSN. V. GREENBERG, SUPRA, P. 363. 

BUT "PROPERTY" AS USED IN THAT CLAUSE HAS BEEN HELD TO INCLUDE THAT
OF A CORPORATION SINCE 1889 WHEN MINNEAPOLIS & ST. L.R. CO. V.
BECKWITH, 129 U.S. 26, WAS DECIDED. 

IT REQUIRES DISTORTION TO READ "PERSON" AS MEANING ONE THING, THEN
ANOTHER WITHIN THE SAME CLAUSE AND FROM CLAUSE TO CLAUSE.  IT MEANS, IN
MY OPINION, A SUBSTANTIAL REVISION OF THE FOURTEENTH AMENDMENT.  AS TO
THE MATTER OF CONSTRUCTION, THE SENSE SEEMS TO ME TO BE WITH MR.
JUSTICE WOODS IN INSURANCE CO. V. NEW ORLEANS, SUPRA, P. 88, WHERE HE
SAID, "THE PLAIN AND EVIDENT MEANING OF THE SECTION IS, THAT THE
PERSONS TO WHOM THE EQUAL PROTECTION OF THE LAW IS SECURED ARE PERSONS
BORN OR NATURALIZED OR ENDOWED WITH LIFE AND LIBERTY, AND CONSEQUENTLY
NATURAL AND NOT ARTIFICIAL PERSONS." 

HISTORY HAS GONE THE OTHER WAY.  SINCE 1886 THE COURT HAS REPEATEDLY
STRUCK DOWN STATE LEGISLATION AS APPLIED TO CORPORATIONS ON THE GROUND
THAT IT VIOLATED THE EQUAL PROTECTION CLAUSE.  FN3  EVERY ONE OF OUR
DECISIONS UPHOLDING LEGISLATION AS APPLIED TO CORPORATIONS OVER THE
OBJECTION THAT IT VIOLATED THE EQUAL PROTECTION CLAUSE HAS ASSUMED THAT
THEY ARE ENTITLED TO THE CONSTITUTIONAL PROTECTION.  BUT IN THOSE CASES
IT WAS NOT NECESSARY TO MEET THE ISSUE SINCE THE STATE LAW WAS NOT
FOUND TO CONTAIN THE ELEMENTS OF DISCRIMINATION WHICH THE EQUAL
PROTECTION CLAUSE CONDEMNS.  BUT NOW THAT THE QUESTION IS SQUARELY
PRESENTED I CAN ONLY CONCLUDE THAT THE SANTA CLARA CASE WAS WRONG AND
SHOULD BE OVERRULED. 

ONE HESITATES TO OVERRULE CASES EVEN IN THE CONSTITUTIONAL FIELD THAT
ARE OF AN OLD VINTAGE.  BUT THAT HAS NEVER BEEN A DETERRENT HERETOFORE
FN4  AND SHOULD NOT BE NOW. 

WE ARE DEALING WITH A QUESTION OF VITAL CONCERN TO THE PEOPLE OF THE
NATION.  IT MAY BE MOST DESIRABLE TO GIVE CORPORATIONS THIS PROTECTION
FROM THE OPERATION OF THE LEGISLATIVE PROCESS.  BUT THAT QUESTION IS
NOT FOR US.  IT IS FOR THE PEOPLE.  IF THEY WANT CORPORATIONS TO BE
TREATED AS HUMANS ARE TREATED, IF THEY WANT TO GRANT CORPORATIONS THIS
LARGE DEGREE OF EMANCIPATION FROM STATE REGULATION,  FN5  THEY SHOULD
SAY SO.  THE CONSTITUTION PROVIDES A METHOD BY WHICH THEY MAY DO SO.
WE SHOULD NOT DO IT FOR THEM THROUGH THE GUISE OF INTERPRETATION. 

FN1  THE CONSTITUTIONAL POSITION OF PROPERTY IN AMERICA, 64
INDEPENDENT 834, 836(1908).  HE WENT ON TO SAY THAT THE DARTMOUTH
COLLEGE CASE (4 WHEAT.  518) AND THE CONSTRUCTION GIVEN THE FOURTEENTH
AMENDMENT IN THE SANTA CLARA CASE "HAVE HAD THE EFFECT OF PLACING THE
MODERN INDUSTRIAL CORPORATION IN AN ALMOST IMPREGNABLE CONSTITUTIONAL
POSITION."  ID., P. 836. 

AS TO WHETHER THE FRAMERS OF THE AMENDMENT MAY HAVE HAD SUCH AN
UNDISCLOSED PURPOSE, SEE GRAHAM, THE "CONSPIRACY THEORY" OF THE
FOURTEENTH AMENDMENT, 47 YALE L.J. 371. 

FN2  CF. MCGOVNEY, A SUPREME COURT FICTION, 56 HARV. L. REV. 853,
1090, 1225, DEALING WITH CORPORATIONS IN THE DIVERSE CITIZENSHIP
JURISDICTION OF THE FEDERAL COURTS. 

FN3  SEE CHICAGO, M. & ST. P.R. CO. V. MINNESOTA, 134 U.S. 418; GULF,
COLORADO & SANTA FE R. CO. V. ELLIS, 165 U.S. 150; COTTING V. KANSAS
CITY STOCKYARDS CO., 183 U.S. 79; CONNOLLY V. UNION SEWER PIPE CO., 184
U.S. 540; SOUTHERN R. CO. V. GREENE, 216 U.S. 400; HERNDON V. CHICAGO,
ROCK ISLAND & PAC. R. CO., 218 U.S. 135; ROACH V. ATCHISON, T. & SANTA
FE R. CO., 218 U.S. 159; ATCHISON, T. & S.F.R. CO. V. VOSBURG, 238 U.S.
56; GAST REALTY CO. V. SCHNEIDER GRANITE CO., 240 U.S. 55; MCFARLAND V.
AMERICAN SUGAR CO., 241 U.S. 79; ROYSTER GUANO CO. V. VIRGINIA, 253
U.S. 412; BETHLEHEM MOTORS CORP. V. FLYNT, 256 U.S. 421; KANSAS CITY
SO. R. CO. V. ROAD IMP.  DIST.  NO. 6, 256 U.S. 658; C. & N.W.R. CO. V.
NYE CO., 260 U.S. 35; SIOUX CITY BRIDGE CO. V. DAKOTA COUNTY, 260 U.S.
441; THOMAS V. KANSAS CITY SO. R. CO., 261 U.S. 481; KENTUCKY CO. V.
PARAMOUNT EXCH., 262 U.S. 544; AIR-WAY CORP. V. DAY, 266 U.S. 71;
HANOVER INS. CO. V. HARDING, 272 U.S. 494; POWER CO. V. SAUNDERS, 274
U.S. 490; LOUISVILLE GAS CO. V. COLEMAN, 277 U.S. 32; QUAKER CITY CAB
CO. V. PENNA., 277 U.S. 389; CUMBERLAND COAL CO. V. BOARD, 284 U.S. 23;
LIGGETT CO. V. LEE, 288 U.S. 517; CONCORDIA INS. CO. V. ILLINOIS, 292
U.S. 535; STEWART DRY GOODS CO. V. LEWIS, 294 U.S. 550; MAYFLOWER FARMS
V. TEN EYCK, 297 U.S. 266; HARTFORD CO. V. HARRISON, 301 U.S. 459. 

FN4  IN RE AYERS, 123 U.S. 443, OVERRULED IN PART OSBORN V. UNITED
STATES BANK, 9 WHEAT.  738, A DECISION 63 YEARS OLD; LEISY V. HARDIN,
135 U.S. 100, OVERRULED PEIRCE V. NEW HAMPSHIRE, 5 HOW.  504, A
DECISION 42 YEARS OLD.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64, OVERRULED
SWIFT V. TYSON, 16 PET. 1, A DECISION 95 YEARS OLD; GRAVES V. N.Y. EX
REL. O'KEEFE, 306 U.S. 466, OVERRULED COLLECTOR V. DAY, 11 WALL.  113,
A DECISION 68 YEARS OLD.  UNITED STATES V. UNDERWRITERS ASSN., 322 U.S.
533, OVERRULED IN PART PAUL V. VIRGINIA, 8 WALL.  168, A DECISION 75
YEARS OLD. 

FN5  THE RESTRICTIONS ON STATE POWER WHICH ARE CONTAINED IN THE
COMMERCE CLAUSE AND WHICH MAY PREVENT THE STATES FROM BURDENING
INTERSTATE COMMERCE (SEE SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761;
MORGAN V. VIRGINIA, 328 U.S. 373) OR DISCRIMINATING AGAINST IT (SEE
NIPPERT V. RICHMOND, 327 U.S. 416) RISE FROM A DIFFERENT SOURCE AND ARE
NOT RELEVANT HERE. 
..END :

















NATIONAL INS. CO. V. TIDEWATER CO., 337 U.S. 582 


NO. 29.  ARGUED NOVEMBER 8, 1948.  - DECIDED JUNE 20, 1949.  - 165 F.2D
531, REVERSED. 


THE ACT OF APRIL 20, 1940, C. 117, 54 STAT. 143(NOW 28 U.S.C. SEC.
1332), CONFERRED ON THE FEDERAL DISTRICT COURTS JURISDICTION OF CIVIL
ACTIONS (INVOLVING NO FEDERAL QUESTION) BETWEEN CITIZENS OF THE
DISTRICT OF COLUMBIA AND CITIZENS OF A STATE.  A DISTRICT OF COLUMBIA
CORPORATION INSTITUTED IN THE FEDERAL DISTRICT COURT FOR MARYLAND AN
ACTION AGAINST A VIRGINIA CORPORATION, WHEREIN THE JURISDICTION
DEPENDED SOLELY ON DIVERSITY OF CITIZENSHIP.  THE DISTRICT COURT HELD
THE ACT UNCONSTITUTIONAL AND DISMISSED THE COMPLAINT.  THE COURT OF
APPEALS AFFIRMED.  HELD:  THE ACT IS CONSTITUTIONAL AND THE JUDGMENT IS
REVERSED.  PP. 583-585, 604. 

NATIONAL MUTUAL INSURANCE CO. V. TIDEWATER TRANSFER CO., INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

A DISTRICT OF COLUMBIA CORPORATION SUED A VIRGINIA CORPORATION IN THE
FEDERAL DISTRICT COURT FOR MARYLAND, THE JURISDICTION DEPENDING SOLELY
ON DIVERSITY OF CITIZENSHIP.  THE DISTRICT COURT DISMISSED THE
COMPLAINT.  THE COURT OF APPEALS AFFIRMED.  165 F.2D 531.  THIS COURT
GRANTED CERTIORARI.  333 U.S. 860.  REVERSED, P. 604. 

MR. JUSTICE JACKSON ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE BLACK AND MR. JUSTICE BURTON JOIN. 

THIS CASE CALLS UP FOR REVIEW A HOLDING THAT IT IS UNCONSTITUTIONAL
FOR CONGRESS TO OPEN FEDERAL COURTS IN THE SEVERAL STATES TO ACTION BY
A CITIZEN OF THE DISTRICT OF COLUMBIA AGAINST A CITIZEN OF ONE OF THE
STATES.  THE PETITIONER, AS PLAINTIFF, COMMENCED IN THE UNITED STATES
DISTRICT COURT FOR MARYLAND AN ACTION FOR A MONEY JUDGMENT ON A CLAIM
ARISING OUT OF AN INSURANCE CONTRACT.  NO CAUSE OF ACTION UNDER THE
LAWS OR CONSTITUTION OF THE UNITED STATES WAS PLEADED, JURISDICTION
BEING PREDICATED ONLY UPON AN ALLEGATION OF DIVERSE CITIZENSHIP.  THE
DIVERSITY SET FORTH WAS THAT PLAINTIFF IS A CORPORATION CREATED BY
DISTRICT OF COLUMBIA LAW, WHILE THE DEFENDANT IS A CORPORATION
CHARTERED BY VIRGINIA, AMENABLE TO SUIT IN MARYLAND BY VIRTUE OF A
LICENSE TO DO BUSINESS THERE.  THE LEARNED DISTRICT JUDGE CONCLUDED
THAT, WHILE THIS DIVERSITY MET JURISDICTIONAL REQUIREMENTS UNDER THE
ACT OF CONGRESS,  FN1  IT DID NOT COMPLY WITH DIVERSITY REQUIREMENTS OF
THE CONSTITUTION AS TO FEDERAL JURISDICTION, AND SO DISMISSED.  FN2 THE
COURT OF APPEALS, BY A DIVIDED COURT, AFFIRMED.  FN3  OF TWELVE
DISTRICT COURTS THAT HAD CONSIDERED THE QUESTION UP TO THE TIME REVIEW
IN THIS COURT WAS SOUGHT, ALL EXCEPT THREE HAD HELD THE ENABLING ACT
UNCONSTITUTIONAL  FN4,  AND THE TWO COURTS OF APPEALS WHICH HAD SPOKEN
ON THE SUBJECT AGREED WITH THAT CONCLUSION.  FN5  THE CONTROVERSY
OBVIOUSLY WAS AN APPROPRIATE ONE FOR REVIEW HERE AND WRIT OF CERTIORARI
ISSUED IN THE CASE.  FN6 

THE HISTORY OF THE CONTROVERSY BEGINS WITH THAT OF THE REPUBLIC.  IN
DEFINING THE CASES AND CONTROVERSIES TO WHICH THE JUDICIAL POWER OF THE
UNITED STATES COULD EXTEND, THE CONSTITUTION INCLUDED THOSE "BETWEEN
CITIZENS OF DIFFERENT STATES."  FN7 IN THE JUDICIARY ACT OF 1789,
CONGRESS CREATED A SYSTEM OF FEDERAL COURTS OF FIRST INSTANCE AND GAVE
THEM JURISDICTION OF SUITS "BETWEEN A CITIZEN OF THE STATE WHERE THE
SUIT IS BROUGHT, AND A CITIZEN OF ANOTHER STATE."  FN8 IN 1804, THE
SUPREME COURT, THROUGH CHIEF JUSTICE MARSHALL, HELD THAT A CITIZEN OF
THE DISTRICT OF COLUMBIA WAS NOT A CITIZEN OF A STATE WITHIN THE
MEANING AND INTENDMENT OF THIS ACT.  FN9  THIS DECISION CLOSED FEDERAL
COURTS IN THE STATES TO CITIZENS OF THE DISTRICT OF COLUMBIA IN
DIVERSITY CASES, AND FOR 136 YEARS THEY REMAINED CLOSED.  IN 1940
CONGRESS ENACTED THE STATUTE CHALLENGED HERE.  IT CONFERS ON SUCH
COURTS JURISDICTION IF THE ACTION "IS BETWEEN CITIZENS OF DIFFERENT
STATES, OR CITIZENS OF THE DISTRICT OF COLUMBIA, THE TERRITORY OF
HAWAII, OR ALASKA, AND ANY STATE OR TERRITORY."  FN10  THE ISSUE HERE
DEPENDS UPON THE VALIDITY OF THIS ACT, WHICH, IN SUBSTANCE, WAS
REENACTED BY A LATER CONGRESS  FN11 AS PART OF THE JUDICIAL CODE. 
FN12 

BEFORE CONCENTRATING ON DETAIL, IT MAY BE WELL TO PLACE THE GENERAL
ISSUE IN A LARGER PERSPECTIVE.  THIS CONSTITUTIONAL ISSUE AFFECTS ONLY
THE MECHANICS OF ADMINISTERING JUSTICE IN OUR FEDERATION.  IT DOES NOT
INVOLVE AN EXTENSION OR A DENIAL OF ANY FUNDAMENTAL RIGHT OR IMMUNITY
WHICH GOES TO MAKE UP OUR FREEDOMS.  THOSE RIGHTS AND FREEDOMS DO NOT
INCLUDE IMMUNITY FROM SUIT BY A CITIZEN OF COLUMBIA OR EXEMPTION FROM
PROCESS OF THE FEDERAL COURTS.  DEFENDANT CONCEDES THAT IT CAN
PRESENTLY BE SUED IN SOME COURT OF LAW, IF NOT THIS ONE, AND IT GRANTS
THAT CONGRESS MAY MAKE IT SUABLE AT PLAINTIFF'S COMPLAINT IN SOME, IF
NOT THIS, FEDERAL COURT.  DEFENDANT'S CONTENTION ONLY AMOUNTS TO THIS:
THAT IT CANNOT BE MADE TO ANSWER THIS PLAINTIFF IN THE PARTICULAR COURT
WHICH CONGRESS HAS DECIDED IS THE JUST AND CONVENIENT FORUM. 

THE CONSIDERATIONS WHICH BID US STRICTLY TO APPLY THE CONSTITUTION TO
CONGRESSIONAL ENACTMENTS WHICH INVADE FUNDAMENTAL FREEDOMS OR WHICH
REACH FOR POWERS THAT WOULD SUBSTANTIALLY DISTURB THE BALANCE BETWEEN
THE UNION AND ITS COMPONENT STATES, ARE NOT PRESENT HERE.  IN MERE
MECHANICS OF GOVERNMENT AND ADMINISTRATION WE SHOULD, SO FAR AS THE
LANGUAGE OF THE GREAT CHARTER FAIRLY WILL PERMIT, GIVE CONGRESS FREEDOM
TO ADAPT ITS MACHINERY TO THE NEEDS OF CHANGING TIMES.  IN NO CASE
COULD THE ADMONITION OF THE GREAT CHIEF JUSTICE BE MORE APPROPRIATELY
HEEDED - "  ...  WE MUST NEVER FORGET, THAT IT IS A CONSTITUTION WE ARE
EXPOUNDING."  FN13 

OUR FIRST INQUIRY IS WHETHER, UNDER THE THIRD, OR JUDICIARY, ARTICLE
OF THE CONSTITUTION,  FN14 EXTENDING THE JUDICIAL POWER OF THE UNITED
STATES TO CASES OR CONTROVERSIES "BETWEEN CITIZENS OF DIFFERENT
STATES," A CITIZEN OF THE DISTRICT OF COLUMBIA HAS THE STANDING OF A
CITIZEN OF ONE OF THE STATES OF THE UNION.  THIS IS THE QUESTION WHICH
THE OPINION OF CHIEF JUSTICE MARSHALL ANSWERED IN THE NEGATIVE, BY WAY
OF DICTA IF NOT OF ACTUAL DECISION.  HEPBURN & DUNDAS V. ELLZEY, 2
CRANCH 445.  TO BE SURE, NOTHING WAS BEFORE THAT COURT EXCEPT
INTERPRETATION OF A STATUTE  FN15 WHICH CONFERRED JURISDICTION
SUBSTANTIALLY IN THE WORDS OF THE CONSTITUTION WITH NOTHING IN THE TEXT
OR CONTEXT TO SHOW THAT CONGRESS INTENDED TO REGARD THE DISTRICT AS A
STATE.  BUT MARSHALL RESOLVED THE STATUTORY QUESTION BY INVOKING THE
ANALOGY OF THE CONSTITUTIONAL PROVISIONS OF THE SAME TENOR AND REASONED
THAT THE DISTRICT WAS NOT A STATE FOR PURPOSES OF THE CONSTITUTION AND,
HENCE, WAS NOT FOR PURPOSES OF THE ACT.  THE OPINION SUMMARILY DISPOSED
OF ARGUMENTS TO THE CONTRARY, INCLUDING THE ONE REPEATED HERE THAT
OTHER PROVISIONS OF THE CONSTITUTION INDICATE THAT "THE TERM STATE IS
SOMETIMES USED IN ITS MORE ENLARGED SENSE."  HERE, AS THERE, "ON
EXAMINING THE PASSAGES QUOTED, THEY DO NOT PROVE WHAT WAS TO BE SHOWN
BY THEM."  2 CRANCH 445, 453.  AMONG HIS CONTEMPORARIES AT LEAST, CHIEF
JUSTICE MARSHALL WAS NOT GENERALLY CENSURED FOR UNDUE LITERALNESS IN
INTERPRETING THE LANGUAGE OF THE CONSTITUTION TO DENY FEDERAL POWER AND
HE WROTE FROM CLOSE PERSONAL KNOWLEDGE OF THE FOUNDERS AND THE
FOUNDATION OF OUR CONSTITUTIONAL STRUCTURE.  NOR DID HE UNDERESTIMATE
THE EQUITABLE CLAIMS WHICH HIS DECISION DENIED TO RESIDENTS OF THE
DISTRICT, FOR HE SAID THAT "IT IS TRUE THAT AS CITIZENS OF THE UNITED
STATES, AND OF THAT PARTICULAR DISTRICT WHICH IS SUBJECT TO THE
JURISDICTION OF CONGRESS, IT IS EXTRAORDINARY THAT THE COURTS OF THE
UNITED STATES, WHICH ARE OPEN TO ALIENS, AND TO THE CITIZENS OF EVERY
STATE IN THE UNION, SHOULD BE CLOSED UPON THEM.  - BUT THIS IS A
SUBJECT FOR LEGISLATIVE NOT FOR JUDICIAL CONSIDERATION."  FN16 

THE LATTER SENTENCE, TO WHICH MUCH IMPORTANCE IS ATTACHED, IS
SOMEWHAT AMBIGUOUS, BECAUSE CONSTITUTIONAL AMENDMENT AS WELL AS
STATUTORY REVISION IS FOR LEGISLATIVE, NOT JUDICIAL, CONSIDERATION. 
BUT THE OPINION AS A WHOLE LEAVES NO DOUBT THAT THE COURT DID NOT THEN
REGARD THE DISTRICT AS A STATE FOR DIVERSITY PURPOSES. 

TO NOW OVERRULE THIS EARLY DECISION OF THE COURT ON THIS POINT AND
HOLD THAT THE DISTRICT OF COLUMBIA IS A STATE WOULD, AS THAT OPINION
POINTED OUT, GIVE TO THE WORD "STATE" A MEANING IN THE ARTICLE WHICH
SETS UP THE JUDICIAL ESTABLISHMENT QUITE DIFFERENT FROM THAT WHICH IT
CARRIES IN THOSE ARTICLES WHICH SET UP THE POLITICAL DEPARTMENTS AND IN
OTHER ARTICLES OF THE INSTRUMENT.  WHILE THE WORD IS ONE WHICH CAN
CONTAIN MANY MEANINGS, SUCH INCONSISTENCY IN A SINGLE INSTRUMENT IS TO
BE IMPLIED ONLY WHERE THE CONTEXT CLEARLY REQUIRES IT.  THERE IS NO
EVIDENCE THAT THE FOUNDERS, PRESSED BY MORE GENERAL AND IMMEDIATE
ANXIETIES, THOUGHT OF THE SPECIAL PROBLEMS OF THE DISTRICT OF COLUMBIA
IN CONNECTION WITH THE JUDICIARY.  THIS IS NOT STRANGE, FOR THE
DISTRICT WAS THEN ONLY A CONTEMPLATED ENTITY.  BUT, HAD THEY THOUGHT OF
IT, THERE IS NOTHING TO INDICATE THAT IT WOULD HAVE BEEN REFERRED TO AS
A STATE AND MUCH TO INDICATE THAT IT WOULD HAVE REQUIRED SPECIAL
PROVISIONS TO FIT ITS ANOMALOUS RELATIONSHIP INTO THE NEW JUDICIAL
SYSTEM, JUST AS IT DID TO FIT IT INTO THE NEW POLITICAL SYSTEM. 

IN REFERRING TO THE "STATES" IN THE FATEFUL INSTRUMENT WHICH
AMALGAMATED THEM INTO THE "UNITED STATES," THE FOUNDERS OBVIOUSLY WERE
NOT SPEAKING OF STATES IN THE ABSTRACT.  THEY REFERRED TO THOSE
CONCRETE ORGANIZED SOCIETIES WHICH WERE THEREBY CONTRIBUTING TO THE
FEDERATION BY DELEGATING SOME PART OF THEIR SOVEREIGN POWERS AND TO
THOSE THAT SHOULD LATER BE ORGANIZED AND ADMITTED TO THE PARTNERSHIP IN
THE METHOD PRESCRIBED.  THEY OBVIOUSLY DID NOT CONTEMPLATE UNORGANIZED
AND DEPENDENT SPACES AS STATES.  THE DISTRICT OF COLUMBIA BEING
NONEXISTENT IN ANY FORM, MUCH LESS AS A STATE, AT THE TIME OF THE
COMPACT, CERTAINLY WAS NOT TAKEN INTO THE UNION OF STATES BY IT, NOR
HAS IT SINCE BEEN ADMITTED AS A NEW STATE IS REQUIRED TO BE ADMITTED. 

WE THEREFORE DECLINE TO OVERRULE THE OPINION OF CHIEF JUSTICE
MARSHALL, AND WE HOLD THAT THE DISTRICT OF COLUMBIA IS NOT A STATE
WITHIN ARTICLE III OF THE CONSTITUTION.  IN OTHER WORDS, CASES BETWEEN
CITIZENS OF THE DISTRICT AND THOSE OF THE STATES WERE NOT INCLUDED IN
THE CATALOGUE OF CONTROVERSIES OVER WHICH THE CONGRESS COULD GIVE
JURISDICTION TO THE FEDERAL COURTS BY VIRTUE OF ART. III. 

THIS CONCLUSION DOES NOT, HOWEVER, DETERMINE THAT CONGRESS LACKS
POWER UNDER OTHER PROVISIONS OF THE CONSTITUTION TO ENACT THIS
LEGISLATION.  CONGRESS, BY THE ACT IN QUESTION, SOUGHT NOT TO CHALLENGE
OR DISAGREE WITH THE DECISION OF CHIEF JUSTICE MARSHALL THAT THE
DISTRICT OF COLUMBIA IS NOT A STATE FOR SUCH PURPOSES.  IT WAS CAREFUL
TO AVOID CONFLICT WITH THAT DECISION BY BASING THE NEW LEGISLATION ON
POWERS THAT HAD NOT BEEN RELIED UPON BY THE FIRST CONGRESS IN PASSING
THE ACT OF 1789. 

THE JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES RECOMMENDED
THE ACT OF APRIL 20, 1940, AS "A REASONABLE EXERCISE OF THE
CONSTITUTIONAL POWER OF CONGRESS TO LEGISLATE FOR THE DISTRICT OF
COLUMBIA AND FOR THE TERRITORIES."  FN17  THIS POWER THE CONSTITUTION
CONFERS IN BROAD TERMS.  BY ART. I, CONGRESS IS EMPOWERED "TO EXERCISE
EXCLUSIVE LEGISLATION IN ALL CASES WHATSOEVER, OVER SUCH DISTRICT." 
FN18 AND OF COURSE IT WAS ALSO AUTHORIZED "TO MAKE ALL LAWS WHICH SHALL
BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION" SUCH POWERS.  FN19
THESE PROVISIONS WERE NOT RELEVANT IN CHIEF JUSTICE MARSHALL'S
INTERPRETATION OF THE ACT OF 1789 BECAUSE IT DID NOT REFER IN TERMS TO
THE DISTRICT BUT ONLY TO STATES.  IT IS THEREFORE SIGNIFICANT THAT,
HAVING DECIDED THAT DISTRICT CITIZENS' CASES WERE NOT BROUGHT WITHIN
FEDERAL JURISDICTION BY ART. III AND THE STATUTE ENACTED PURSUANT TO
IT, THE CHIEF JUSTICE ADDED, AS WE HAVE SEEN, THAT IT WAS EXTRAORDINARY
THAT THE FEDERAL COURTS SHOULD BE CLOSED TO THE CITIZENS OF "THAT
PARTICULAR DISTRICT WHICH IS SUBJECT TO THE JURISDICTION OF CONGRESS." 
SUCH LANGUAGE CLEARLY REFERS TO CONGRESS' ART. I POWER OF "EXCLUSIVE
LEGISLATION IN ALL CASES WHATSOEVER, OVER SUCH DISTRICT."  AND MENTION
OF THAT POWER SEEMS PARTICULARLY SIGNIFICANT IN THE CONTEXT OF
MARSHALL'S FURTHER STATEMENT THAT THE MATTER IS A SUBJECT FOR
"LEGISLATIVE NOT FOR JUDICIAL CONSIDERATION."  EVEN IF IT BE CONSIDERED
SPECULATION TO SAY THAT THIS WAS AN EXPRESSION BY THE CHIEF JUSTICE
THAT CONGRESS HAD THE REQUISITE POWER UNDER ART. I, IT WOULD BE IN THE
TEETH OF HIS LANGUAGE TO SAY THAT IT IS A DENIAL OF SUCH POWER.  THE
CONGRESS HAS ACTED ON THE BELIEF THAT IT POSSESSES THAT POWER.  WE
BELIEVE THEIR CONCLUSION IS WELL FOUNDED. 

IT IS ELEMENTARY THAT THE EXCLUSIVE RESPONSIBILITY OF CONGRESS FOR
THE WELFARE OF THE DISTRICT INCLUDES BOTH POWER AND DUTY TO PROVIDE ITS
INHABITANTS AND CITIZENS WITH COURTS ADEQUATE TO ADJUDGE NOT ONLY
CONTROVERSIES AMONG THEMSELVES BUT ALSO THEIR CLAIMS AGAINST, AS WELL
AS SUITS BROUGHT BY, CITIZENS OF THE VARIOUS STATES.  IT LONG HAS BEEN
HELD THAT CONGRESS MAY CLOTHE DISTRICT OF COLUMBIA COURTS NOT ONLY WITH
THE JURISDICTION AND POWERS OF FEDERAL COURTS IN THE SEVERAL STATES BUT
WITH SUCH AUTHORITY AS A STATE MAY CONFER ON HER COURTS.  KENDALL V.
UNITED STATES, 12 PET. 524, 619; CAPITAL TRACTION CO. V. HOF, 174 U.S.
1; O'DONOGHUE V. UNITED STATES, 289 U.S. 516.  THE DEFENDANT HERE DOES
NOT CHALLENGE THE POWER OF CONGRESS TO ASSURE JUSTICE TO THE CITIZENS
OF THE DISTRICT BY MEANS OF FEDERAL INSTRUMENTALITIES, OR TO EMPOWER A
FEDERAL COURT WITHIN THE DISTRICT TO RUN ITS PROCESS TO SUMMON
DEFENDANTS HERE FROM ANY PART OF THE COUNTRY.  AND NO REASON HAS BEEN
ADVANCED WHY A SPECIAL STATUTORY COURT FOR CASES OF DISTRICT CITIZENS
COULD NOT BE AUTHORIZED TO PROCEED ELSEWHERE IN THE UNITED STATES TO
SIT, WHERE NECESSARY OR PROPER, TO DISCHARGE THE DUTIES OF CONGRESS
TOWARD DISTRICT CITIZENS. 

HOWEVER, IT IS CONTENDED THAT CONGRESS MAY NOT COMBINE THIS FUNCTION,
UNDER ART. I, WITH THOSE UNDER ART. III, IN DISTRICT COURTS OF THE
UNITED STATES.  TWO OBJECTIONS ARE URGED TO THIS.  ONE IS THAT NO
JURISDICTION OTHER THAN SPECIFIED IN ART. III CAN BE IMPOSED ON COURTS
THAT EXERCISE THE JUDICIAL POWER OF THE UNITED STATES THEREUNDER.  THE
OTHER IS THAT ART. I POWERS OVER THE DISTRICT OF COLUMBIA MUST BE
EXERCISED SOLELY WITHIN THAT GEOGRAPHIC AREA.    OF COURSE THERE ARE
LIMITS TO THE NATURE OF DUTIES WHICH CONGRESS MAY IMPOSE ON THE
CONSTITUTIONAL COURTS VESTED WITH THE FEDERAL JUDICIAL POWER.  THE
DOCTRINE OF SEPARATION OF POWERS IS FUNDAMENTAL IN OUR SYSTEM.  IT
ARISES, HOWEVER, NOT FROM ART. III NOR ANY OTHER SINGLE PROVISION OF
THE CONSTITUTION, BUT BECAUSE "BEHIND THE WORDS OF THE CONSTITUTIONAL
PROVISIONS ARE POSTULATES WHICH LIMIT AND CONTROL."  CHIEF JUSTICE
HUGHES IN MONACO V. MISSISSIPPI, 292 U.S. 313, 323.  THE PERMEATIVE
NATURE OF THIS DOCTRINE WAS EARLY RECOGNIZED DURING THE CONSTITUTIONAL
CONVENTION.  OBJECTION THAT THE PRESENT PROVISION GIVING FEDERAL COURTS
JURISDICTION OF CASES ARISING "UNDER THIS CONSTITUTION" WOULD PERMIT
USURPATION OF NONJUDICIAL FUNCTIONS BY THE FEDERAL COURTS WAS OVERRULED
AS UNWARRANTED SINCE IT WAS "GENERALLY SUPPOSED THAT THE JURISDICTION
GIVEN WAS CONSTRUCTIVELY LIMITED TO CASES OF A JUDICIARY NATURE."  2
FARRAND, RECORDS OF THE FEDERAL CONVENTION, 430.  AND THIS STATUTE
REFLECTS THAT DOCTRINE.  IT DOES NOT AUTHORIZE OR REQUIRE EITHER THE
DISTRICT COURTS OR THIS COURT TO PARTICIPATE IN ANY LEGISLATIVE,
ADMINISTRATIVE, POLITICAL OR OTHER NONJUDICIAL FUNCTION OR TO RENDER
ANY ADVISORY OPINION.  THE JURISDICTION CONFERRED IS LIMITED TO
CONTROVERSIES OF A JUSTICIABLE NATURE, THE SOLE FEATURE DISTINGUISHING
THEM FROM COUNTLESS OTHER CONTROVERSIES HANDLED BY THE SAME COURTS
BEING THE FACT THAT ONE PARTY IS A DISTRICT CITIZEN.  NOR HAS THE
CONGRESS BY THIS STATUTE ATTEMPTED TO USURP ANY JUDICIAL POWER.  IT HAS
DELIBERATELY CHOSEN THE DISTRICT COURTS AS THE APPROPRIATE
INSTRUMENTALITY THROUGH WHICH TO EXERCISE PART OF THE JUDICIAL
FUNCTIONS INCIDENTAL TO EXERTION OF SOVEREIGNTY OVER THE DISTRICT AND
ITS CITIZENS. 

UNLESS WE ARE TO DENY TO CONGRESS THE SAME CHOICE OF MEANS THROUGH
WHICH TO GOVERN THE DISTRICT OF COLUMBIA THAT WE HAVE HELD IT TO HAVE
IN EXERCISING OTHER LEGISLATIVE POWERS ENUMERATED IN THE SAME ARTICLE,
WE CANNOT HOLD THAT CONGRESS LACKED THE POWER IT SOUGHT TO EXERCISE IN
THE ACT BEFORE US. 

IT IS TOO LATE TO HOLD THAT JUDICIAL FUNCTIONS INCIDENTAL TO ART. I
POWERS OF CONGRESS CANNOT BE CONFERRED ON COURTS EXISTING UNDER ART.
III, FOR IT HAS BEEN DONE WITH THIS COURT'S APPROVAL.  O'DONOGHUE V.
UNITED STATES, 289 U.S. 516.  IN THAT CASE IT WAS HELD THAT, ALTHOUGH
DISTRICT OF COLUMBIA COURTS ARE ART. III COURTS, THEY CAN ALSO EXERCISE
JUDICIAL POWER CONFERRED BY CONGRESS PURSUANT TO ART. I. THE FACT THAT
DISTRICT OF COLUMBIA COURTS, AS LOCAL COURTS, CAN ALSO BE GIVEN
ADMINISTRATIVE OR LEGISLATIVE FUNCTIONS WHICH OTHER ART. III COURTS
CANNOT EXERCISE, DOES BUT EMPHASIZE THE FACT THAT, ALTHOUGH THE LATTER
ARE LIMITED TO THE EXERCISE OF JUDICIAL POWER, IT MAY CONSTITUTIONALLY
BE RECEIVED FROM EITHER ART. III OR ART. I, AND THAT CONGRESSIONAL
POWER OVER THE DISTRICT, FLOWING FROM ART. I, IS PLENARY IN EVERY
RESPECT. 

IT IS LIKEWISE TOO LATE TO SAY THAT WE SHOULD REACH THIS RESULT BY
OVERRULING CHIEF JUSTICE MARSHALL'S VIEW, UNLESS WE ARE PREPARED ALSO
TO OVERRULE MUCH MORE, INCLUDING SOME OF OUR OWN VERY RECENT
UTTERANCES.  MANY POWERS OF CONGRESS OTHER THAN ITS POWER TO GOVERN
COLUMBIA REQUIRE FOR THEIR INTELLIGENT AND DISCRIMINATING EXERCISE
DETERMINATION OF CONTROVERSIES OF A JUSTICIABLE CHARACTER.  IN NO
INSTANCE HAS THIS COURT YET HELD THAT JURISDICTION OF SUCH CASES COULD
NOT BE PLACED IN THE REGULAR FEDERAL COURTS THAT CONGRESS HAS BEEN
AUTHORIZED TO ORDAIN AND ESTABLISH.  WE TURN TO SOME ANALOGOUS
SITUATIONS IN WHICH WE HAVE APPROVED THE VERY COURSE THAT CONGRESS HAS
TAKEN HERE. 

CONGRESS IS GIVEN POWER BY ART. I TO PAY DEBTS OF THE UNITED STATES. 
THAT INVOLVES AS AN INCIDENT THE DETERMINATION OF DISPUTED CLAIMS.  WE
HAVE HELD UNANIMOUSLY THAT CONGRESSIONAL AUTHORITY UNDER ART. I, NOT
THE ART. III JURISDICTION OVER SUITS TO WHICH THE UNITED STATES IS A
PARTY, IS THE SOLE SOURCE OF POWER TO ESTABLISH THE COURT OF CLAIMS AND
OF THE JUDICIAL POWER WHICH THAT COURT EXERCISES.  WILLIAMS V. UNITED
STATES, 289 U.S. 553.  IN THAT DECISION WE ALSO NOTED THAT IT IS THIS
SAME ART. I POWER THAT IS CONFERRED ON DISTRICT COURTS BY THE TUCKER
ACT FN20  WHICH AUTHORIZES THEM TO HEAR AND DETERMINE SUCH CLAIMS IN
LIMITED AMOUNTS.  SINCE A LEGISLATIVE COURT SUCH AS THE COURT OF CLAIMS
IS "INCAPABLE OF RECEIVING" ART. III JUDICIAL POWER, AMERICAN INSURANCE
CO. V. CANTER, 1 PET. 511, 546, IT IS CLEAR THAT THE POWER THUS
EXERCISED BY THAT COURT AND CONCURRENTLY BY THE DISTRICT COURTS FLOWS
FROM ART. I, NOT ART. III.  INDEED, MORE RECENTLY AND AGAIN
UNANIMOUSLY, THIS COURT HAS SAID THAT BY THE TUCKER ACT THE CONGRESS
AUTHORIZED THE DISTRICT COURTS TO SIT AS A COURT OF CLAIMS  FN21
EXERCISING THE SAME BUT NO MORE JUDICIAL POWER.  UNITED STATES V.
SHERWOOD, 312 U.S. 584, 591.  AND BUT A FEW TERMS AGO, IN CONSIDERING
AN ACT BY WHICH CONGRESS DIRECTED REHEARING OF A REJECTED CLAIM AND ITS
REDETERMINATION IN CONFORMITY WITH DIRECTIONS GIVEN IN THE ACT, CHIEF
JUSTICE STONE, WITH THE CONCURRENCE OF ALL SITTING COLLEAGUES, REASONED
THAT "THE PROBLEM PRESENTED HERE IS NO DIFFERENT THAN IF CONGRESS HAD
GIVEN A LIKE DIRECTION TO ANY DISTRICT COURT TO BE FOLLOWED AS IN OTHER
TUCKER ACT CASES."  POPE V. UNITED STATES, 323 U.S. 1, 14.  CONGRESS
HAS TAKEN US AT OUR WORD AND RECENTLY CONFERRED ON THE DISTRICT COURTS
EXCLUSIVE JURISDICTION OF TORT CLAIMS COGNIZABLE UNDER THE FEDERAL TORT
CLAIMS ACT, 60 STAT. 842, 843, ALSO ENACTED PURSUANT TO ART. I POWERS. 
FN22  SEE BROOKS V. UNITED STATES, ANTE, P. 49. 

CONGRESS ALSO IS GIVEN POWER IN ART. I TO MAKE UNIFORM LAWS ON THE
SUBJECT OF BANKRUPTCIES.  THAT THIS, AND NOT THE JUDICIAL POWER UNDER
ART. III, IS THE SOURCE OF OUR SYSTEM OF REORGANIZATIONS AND BANKRUPTCY
IS OBVIOUS, CONTINENTAL BANK V. CHICAGO, R.I. & P.R. CO., 294 U.S.
648.  NOT ONLY MAY THE DISTRICT COURTS BE REQUIRED TO HANDLE THESE
PROCEEDINGS, BUT CONGRESS MAY ADD TO THEIR JURISDICTION CASES BETWEEN
THE TRUSTEE AND OTHERS THAT, BUT FOR THE BANKRUPTCY POWERS, WOULD BE
BEYOND THEIR JURISDICTION BECAUSE OF LACK OF DIVERSITY REQUIRED UNDER
ART. III.  SCHUMACHER V. BEELER, 293 U.S. 367.  IN THAT CASE, CHIEF
JUSTICE HUGHES FOR A UNANIMOUS COURT WROTE THAT, BY VIRTUE OF ITS ART.
I AUTHORITY OVER BANKRUPTCIES, THE CONGRESS COULD CONFER ON THE REGULAR
DISTRICT COURTS JURISDICTION OF "ALL CONTROVERSIES AT LAW AND IN
EQUITY, AS DISTINGUISHED FROM PROCEEDINGS IN BANKRUPTCY, BETWEEN
TRUSTEES AS SUCH AND ADVERSE CLAIMANTS" TO THE EXTENT SPECIFIED IN SEC.
23B OF THE BANKRUPTCY ACT AS AMENDED.  SUCH JURISDICTION WAS THERE
UPHELD IN A PLENARY SUIT, IN A DISTRICT COURT, BY WHICH THE TRUSTEE
SOUGHT EQUITABLE RELIEF RELYING ON ALLEGATIONS RAISING ONLY QUESTIONS
OF OHIO LAW CONCERNING THE VALIDITY UNDER THAT LAW OF A SHERIFF'S LEVY
AND EXECUTION.  POSSESSION BY THE TRUSTEE NOT BEING SHOWN, AND THERE
BEING NO DIVERSITY, JURISDICTION IN THE DISTRICT COURT COULD FLOW ONLY
FROM THE STATUTE.  CHIEF JUSTICE HUGHES NOTED THAT THE DISTINCTION
BETWEEN PROCEEDINGS IN BANKRUPTCY AND SUITS AT LAW AND IN EQUITY WAS
RECOGNIZED BY THE TERMS OF THE STATUTE ITSELF, BUT HELD THAT "CONGRESS,
BY VIRTUE OF ITS CONSTITUTIONAL AUTHORITY OVER BANKRUPTCIES, COULD
CONFER OR WITHHOLD JURISDICTION TO ENTERTAIN SUCH SUITS AND COULD
PRESCRIBE THE CONDITIONS UPON WHICH THE FEDERAL COURTS SHOULD HAVE
JURISDICTION.  ...  EXERCISING THAT POWER, THE CONGRESS PRESCRIBED IN
SEC. 23B THE CONDITION OF CONSENT ON THE PART OF THE DEFENDANT SUED BY
THE TRUSTEE.  SECTION 23B WAS THUS IN EFFECT A GRANT OF JURISDICTION
SUBJECT TO THAT CONDITION."  293 U.S. 367, 374.  HE CONCLUDED THAT THE
STATUTE GRANTED JURISDICTION TO THE DISTRICT COURT "ALTHOUGH THE
BANKRUPT COULD NOT HAVE BROUGHT SUIT THERE IF PROCEEDINGS IN BANKRUPTCY
HAD NOT BEEN INSTITUTED  ...  "  293 U.S. 367, 377.  AND HE STATED THE
CORRECT VIEW TO BE THAT SEC. 23 CONFERRED SUBSTANTIVE JURISDICTION, 293
U.S. 367, 371, DISAPPROVING STATEMENTS IN AN EARLIER CASE THAT CONGRESS
LACKED POWER TO CONFER SUCH JURISDICTION.  ID. AT 377.  THUS, THE COURT
HELD THAT CONGRESS HAD POWER TO AUTHORIZE AN ART. III COURT TO
ENTERTAIN A NON-ART.  III SUIT BECAUSE SUCH JUDICIAL POWER WAS
CONFERRED UNDER ART. I. INDEED, THE PRESENT COURT HAS ASSUMED, WITHOUT
EVEN DISCUSSION, THAT CONGRESS HAS SUCH POWER.  IN WILLIAMS V.
AUSTRIAN, 331 U.S. 642, 657, THE CHIEF JUSTICE, SPEAKING FOR THE COURT,
SAID THAT " ...  CONGRESS INTENDED BY THE ELIMINATION OF SEC. 23(FROM
CHAPTER X OF THE BANKRUPTCY ACT) TO ESTABLISH THE JURISDICTION OF
FEDERAL COURTS TO HEAR PLENARY SUITS BROUGHT BY A REORGANIZATION
TRUSTEE, EVEN THOUGH DIVERSITY OR OTHER USUAL GROUND FOR FEDERAL
JURISDICTION IS LACKING."  THERE WAS VIGOROUS DISSENT AS TO THE MEANING
OF THE STATUTE, BUT THE DISSENTING JUSTICES REFERRED TO THE COURT'S
HOLDING THAT "A CHAPTER X TRUSTEE MAY BRING THIS PLENARY SUIT IN
PERSONAM IN A FEDERAL DISTRICT COURT NOT THE REORGANIZATION COURT,
ALTHOUGH NEITHER DIVERSITY OF CITIZENSHIP NOR OTHER GROUND OF FEDERAL
JURISDICTION EXISTS."  331 U.S. 642, 664.  AND THE DISSENT CONTINUED:
"NO DOUBT CONGRESS COULD AUTHORIZE SUCH A SUIT.  SEE SCHUMACHER V.
BEELER, 293 U.S. 367, 374."  IBID. 

THIS ASSUMPTION BY THE COURT IN THE BEELER AND AUSTRIAN CASES, THAT
THE CONGRESS HAD POWER TO CONFER ON THE DISTRICT COURTS JURISDICTION OF
NONDIVERSITY SUITS INVOLVING ONLY STATE LAW QUESTIONS, MADE UNNECESSARY
ANY DISCUSSION OF THE SOURCE OF THE ASSUMED POWER.  IN VIEW OF
CONGRESS' PLENARY CONTROL OVER BANKRUPTCIES, THE COURT MAY HAVE
GROUNDED SUCH ASSUMPTION ON ART. I. OR IT MIGHT HAVE CONSIDERED THAT
THE JURISDICTION WAS BASED ON ART. III, AND STATUTES ENACTED PURSUANT
TO IT, GIVING THE DISTRICT COURTS JURISDICTION OVER SUITS ARISING UNDER
THE CONSTITUTION AND LAWS OF THE UNITED STATES.  HAD THE COURT HELD
SUCH A VIEW, THIS LATTER MIGHT HAVE COMMENDED ITSELF AS THE MOST
OBVIOUS ANSWER.  CONSEQUENTLY, SILENCE IN THIS RESPECT, IN THE DECISION
OF EACH CASE, SEEMS SIGNIFICANT, PARTICULARLY IN CONTRAST WITH REPEATED
REFERENCE TO ART. I POWER IN THE BEELER CASE, AND SWEEPING LANGUAGE IN
THE AUSTRIAN CASE THAT SUCH JURISDICTION EXISTED DESPITE LACK OF
DIVERSITY "OR OTHER USUAL GROUND FOR FEDERAL JURISDICTION." 
NEVERTHELESS, IT IS NOW ASSERTED, IN RETROSPECT, THAT THOSE CASES DID
ARISE UNDER THE LAWS OF THE UNITED STATES.  NO JUSTIFICATION IS OFFERED
FOR THAT CONCLUSION AND THERE IS NO EFFORT TO SAY JUST WHY OR HOW THE
CASES DID SO ARISE.  THIS WOULD INDEED BE DIFFICULT IF WE STILL ADHERE
TO THE DOCTRINE OF MR. JUSTICE HOLMES THAT "A SUIT ARISES UNDER THE LAW
THAT CREATES THE CAUSE OF ACTION," AMERICAN WELL WORKS CO. V. LAYNE
CO., 241 U.S. 257, 260, FOR THE CAUSE OF ACTION IN EACH CASE RESTED
SOLELY ON STATE LAW. 

BUT THE MATTER DOES NOT REST ON INFERENCE ALONE.  OTHER DECISIONS OF
THIS COURT DEMONSTRATE CONCLUSIVELY THAT JURISDICTION OVER THE BEELER
AND AUSTRIAN SUITS WAS NOT AND COULD NOT HAVE BEEN CONFERRED UNDER ART.
III AND STATUTES CONCERNING SUITS ARISING UNDER THE LAWS OF THE UNITED
STATES.  A MOST THOROUGHLY-CONSIDERED UTTERANCE OF THIS COURT ON THAT
SUBJECT WAS GIVEN BY MR. JUSTICE CARDOZO, IN GULLY V. FIRST NATIONAL
BANK, 299 U.S. 109, WHERE HE SAID, WITHOUT DISSENT, "HOW AND WHEN A
CASE ARISES 'UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES' HAS
BEEN MUCH CONSIDERED IN THE BOOKS.  SOME TESTS ARE WELL ESTABLISHED. 
TO BRING A CASE WITHIN THE STATUTE, A RIGHT OR IMMUNITY CREATED BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES MUST BE AN ELEMENT, AND AN
ESSENTIAL ONE, OF THE PLAINTIFF'S CAUSE OF ACTION.  ...  THE RIGHT OR
IMMUNITY MUST BE SUCH THAT IT WILL BE SUPPORTED IF THE CONSTITUTION OR
LAWS OF THE UNITED STATES ARE GIVEN ONE CONSTRUCTION OR EFFECT, AND
DEFEATED IF THEY RECEIVE ANOTHER.  ...  A GENUINE AND PRESENT
CONTROVERSY, NOT MERELY A POSSIBLE OR CONJECTURAL ONE, MUST EXIST WITH
REFERENCE THERETO  ... AND THE CONTROVERSY MUST BE DISCLOSED UPON THE
FACE OF THE COMPLAINT  ...  "  299 U.S. 109, 112-113.  AFTER REVIEWING
PREVIOUS CASES, MR. JUSTICE CARDOZO REFERRED TO A THEN RECENT OPINION
BY MR. JUSTICE STONE IN WHICH HE SAID, FOR A UNANIMOUS COURT, THAT
FEDERAL JURISDICTION "MAY NOT BE INVOKED WHERE THE RIGHT ASSERTED IS
NON-FEDERAL, MERELY BECAUSE THE PLAINTIFF'S RIGHT TO SUE IS DERIVED
FROM FEDERAL LAW, OR BECAUSE THE PROPERTY INVOLVED WAS OBTAINED UNDER
FEDERAL STATUTE.  THE FEDERAL NATURE OF THE RIGHT TO BE ESTABLISHED IS
DECISIVE - NOT THE SOURCE OF THE AUTHORITY TO ESTABLISH IT."  PUERTO
RICO V. RUSSELL & CO., 288 U.S. 476, 483.  FN23  SEE ALSO SWITCHMEN'S
UNION V. BOARD, 320 U.S. 297; GENERAL COMMITTEE V. M.-K.-T. R. CO., 320
U.S. 323. 

NEITHER THE AUSTRIAN NOR THE BEELER CASE MEETS THESE TESTS, REQUIRED
BEFORE A CASE CAN BE SAID TO ARISE UNDER THE LAWS OF THE UNITED STATES,
ANY MORE THAN DOES THE CASE BEFORE US.  AUSTRIAN, AS TRUSTEE, SUED IN
EQUITY FOR AN ACCOUNTING BASED ON A CHARGE THAT AFFAIRS OF A STATE
CREATED CORPORATION HAD BEEN CONDUCTED BY THE OFFICERS IN VIOLATION OF
STATE LAW.  BEELER, AS TRUSTEE, SUED ON A CONTENTION THAT A LEVY ON
PROPERTY BY AN OHIO SHERIFF WAS VOID UNDER STATE LAW.  BOTH
CONTROVERSIES, LIKE THE ONE BEFORE US, CALLED FOR A DETERMINATION OF NO
LAW QUESTION EXCEPT THOSE ARISING UNDER STATE LAWS.  THE ONLY WAY IN
WHICH ANY LAW OF THE UNITED STATES CONTRIBUTED TO THE CASE WAS IN
OPENING THE DISTRICT COURTS TO THE TRUSTEE, UNDER ART. I POWERS OF
CONGRESS, JUST AS THE PRESENT STATUTE, UNDER THE SAME ARTICLE, OPENS
THOSE COURTS TO RESIDENTS OF THE DISTRICT OF COLUMBIA.  IN EACH CASE,
IN THE WORDS OF CHIEF JUSTICE STONE, THE FEDERAL LAW PROVIDED, NOT THE
RIGHT SOUGHT TO BE ESTABLISHED, BUT ONLY THE AUTHORITY OF THE TRUSTEE
TO ESTABLISH IT.  THE FACT THAT THE CONGRESSIONAL POWER OVER BANKRUPTCY
GRANTED BY ART. I COULD OPEN THE COURT TO THE TRUSTEE DOES NOT MEAN
THAT SUCH SUITS ARISE UNDER THE LAWS OF THE UNITED STATES; BUT IT DOES
MEAN THAT ART. I CAN SUPPLY A SOURCE OF JUDICIAL POWER FOR THEIR
ADJUDICATION.  THE DISTINCTION IS IMPORTANT AND IT IS DECISIVE ON THIS
ISSUE.    NEITHER THE BEELER NOR THE AUSTRIAN CASE WAS ONE ARISING
UNDER THE LAWS OF THE UNITED STATES WITHIN THE CLEAR LANGUAGE OF RECENT
HOLDINGS BY THIS COURT.  UNLESS WE ARE TO DENY THE JURISDICTION IN SUCH
CASES WHICH HAS CONSISTENTLY BEEN UPHELD, WE MUST RELY ON THE ART. I
POWERS OF THE CONGRESS.  WE HAVE BEEN CITED TO NO HOLDING THAT SUCH
JURISDICTION CANNOT SPRING FROM THAT ARTICLE.  UNDER ART. I THE
CONGRESS HAS GIVEN THE DISTRICT COURTS NOT ONLY JURISDICTION OVER CASES
ARISING UNDER THE BANKRUPTCY LAW BUT ALSO JUDICIAL POWER OVER
NONDIVERSITY CASES WHICH DO NOT ARISE UNDER THAT OR ANY OTHER FEDERAL
LAW.  AND THIS COURT HAS UPHELD THE LATTER GRANT. 

CONSEQUENTLY, WE CAN DENY VALIDITY TO THIS PRESENT ACT OF CONGRESS,
ONLY BY SAYING THAT THE POWER OVER THE DISTRICT GIVEN BY ART. I IS
SOMEHOW LESS AMPLE THAN THAT OVER BANKRUPTCY GIVEN BY THE SAME
ARTICLE.  IF CONGRESS COULD REQUIRE THIS DISTRICT COURT TO DECIDE THIS
VERY CASE IF IT WERE BROUGHT BY A TRUSTEE, IT IS HARD TO SEE WHY IT MAY
NOT REQUIRE ITS DECISION FOR A SOLVENT CLAIMANT WHEN DONE IN PURSUANCE
OF OTHER ART. I POWERS. 

WE CONCLUDE THAT WHERE CONGRESS IN THE EXERCISE OF ITS POWERS UNDER
ART. I FINDS IT NECESSARY TO PROVIDE THOSE ON WHOM ITS POWER IS EXERTED
WITH ACCESS TO SOME KIND OF COURT OR TRIBUNAL FOR DETERMINATION OF
CONTROVERSIES THAT ARE WITHIN THE TRADITIONAL CONCEPT OF THE
JUSTICIABLE, IT MAY OPEN THE REGULAR FEDERAL COURTS TO THEM REGARDLESS
OF LACK OF DIVERSITY OF CITIZENSHIP.  THE BASIS OF THE HOLDINGS WE HAVE
DISCUSSED IS THAT, WHEN CONGRESS DEEMS THAT FOR SUCH PURPOSES IT OWES A
FORUM TO CLAIMANTS AND TRUSTEES, IT MAY EXECUTE ITS POWER IN THIS
MANNER.  THE CONGRESS, WITH EQUAL JUSTIFICATION, APPARENTLY CONSIDERS
THAT IT ALSO OWES SUCH A FORUM TO THE RESIDENTS OF THE DISTRICT OF
COLUMBIA IN EXECUTION OF ITS POWER AND DUTY UNDER THE SAME ARTICLE.  WE
DO NOT SEE HOW THE ONE COULD BE SUSTAINED AND THE OTHER DENIED. 

WE THEREFORE HOLD THAT CONGRESS MAY EXERT ITS POWER TO GOVERN THE
DISTRICT OF COLUMBIA BY IMPOSING THE JUDICIAL FUNCTION OF ADJUDICATING
JUSTICIABLE CONTROVERSIES ON THE REGULAR FEDERAL COURTS  FN24  WHICH
UNDER THE CONSTITUTION IT HAS THE POWER TO ORDAIN AND ESTABLISH AND
WHICH IT MAY INVEST WITH JURISDICTION AND FROM WHICH IT MAY WITHHOLD
JURISDICTION "IN THE EXACT DEGREES AND CHARACTER WHICH TO CONGRESS MAY
SEEM PROPER FOR THE PUBLIC GOOD."  LOCKERTY V. PHILLIPS, 319 U.S. 182,
187. 

THE ARGUMENT THAT CONGRESSIONAL POWERS OVER THE DISTRICT ARE NOT TO
BE EXERCISED OUTSIDE OF ITS TERRITORIAL LIMITS ALSO IS PRESSED UPON US.
BUT THIS SAME CONTENTION HAS LONG BEEN HELD BY THIS COURT TO BE
UNTENABLE.  IN COHENS V. VIRGINIA, 6 WHEAT.  264, 425, 429, CHIEF
JUSTICE MARSHALL, ANSWERING THE ARGUMENT THAT CONGRESS, WHEN
LEGISLATING FOR THE DISTRICT, "WAS REDUCED TO A MERE LOCAL LEGISLATURE,
WHOSE LAWS COULD POSSESS NO OBLIGATION OUT OF THE TEN MILES SQUARE,"
SAID "CONGRESS IS NOT A LOCAL LEGISLATURE, BUT EXERCISES THIS
PARTICULAR POWER, LIKE ALL ITS OTHER POWERS, IN ITS HIGH CHARACTER, AS
THE LEGISLATURE OF THE UNION.  THE AMERICAN PEOPLE THOUGHT IT A
NECESSARY POWER, AND THEY CONFERRED IT FOR THEIR OWN BENEFIT.  BEING SO
CONFERRED, IT CARRIES WITH IT ALL THOSE INCIDENTAL POWERS WHICH ARE
NECESSARY TO ITS COMPLETE AND EFFECTUAL EXECUTION."  IN O'DONOGHUE V.
UNITED STATES, 289 U.S. 516, 539, THIS COURT APPROVED A STATEMENT MADE
BY CIRCUIT JUDGE TAFT, LATER CHIEF JUSTICE OF THIS COURT, SPEAKING FOR
HIMSELF AND JUDGE (LATER MR. JUSTICE) LURTON, THAT "THE OBJECT OF THE
GRANT OF EXCLUSIVE LEGISLATION OVER THE DISTRICT WAS, THEREFORE,
NATIONAL IN THE HIGHEST SENSE, AND THE CITY ORGANIZED UNDER THE GRANT
BECAME THE CITY, NOT OF A STATE, NOT OF A DISTRICT, BUT OF A NATION. 
IN THE SAME ARTICLE WHICH GRANTED THE POWERS OF EXCLUSIVE LEGISLATION
OVER ITS SEAT OF GOVERNMENT ARE CONFERRED ALL THE OTHER GREAT POWERS
WHICH MAKE THE NATION, INCLUDING THE POWER TO BORROW MONEY ON THE
CREDIT OF THE UNITED STATES.  HE WOULD BE A STRICT CONSTRUCTIONIST,
INDEED, WHO SHOULD DENY TO CONGRESS THE EXERCISE OF THIS LATTER POWER
IN FURTHERANCE OF THAT OF ORGANIZING AND MAINTAINING A PROPER LOCAL
GOVERNMENT AT THE SEAT OF GOVERNMENT.  EACH IS FOR A NATIONAL PURPOSE,
AND THE ONE MAY BE USED IN AID OF THE OTHER.  ...  " AND, JUST PRIOR TO
ENACTMENT OF THE STATUTE NOW CHALLENGED ON THIS GROUND, THE COURT OF
APPEALS FOR THE DISTRICT ITSELF, SITTING EN BANC, AND RELYING ON THE
FOREGOING AUTHORITIES, HAD SAID THAT CONGRESS "POSSESSES FULL AND
UNLIMITED JURISDICTION TO PROVIDE FOR THE GENERAL WELFARE" OF DISTRICT
CITIZENS "BY ANY AND EVERY ACT OF LEGISLATION WHICH IT MAY DEEM
CONDUCIVE TO THAT END ...  WHEN IT LEGISLATES FOR THE DISTRICT,
CONGRESS ACTS AS A LEGISLATURE OF NATIONAL CHARACTER, EXERCISING
COMPLETE LEGISLATIVE CONTROL AS CONTRASTED WITH THE LIMITED POWER OF A
STATE LEGISLATURE, ON THE ONE HAND, AND AS CONTRASTED WITH THE LIMITED
SOVEREIGNTY WHICH CONGRESS EXERCISES WITHIN THE BOUNDARIES OF THE
STATES, ON THE OTHER."  NEILD V. DISTRICT OF COLUMBIA, 71 APP. D.C.
306, 310, 110 F.2D 246, 250. 

WE COULD NOT OF COURSE COUNTENANCE ANY EXERCISE OF THIS PLENARY POWER
EITHER WITHIN OR WITHOUT THE DISTRICT IF IT WERE SUCH AS TO DRAW INTO
CONGRESSIONAL CONTROL SUBJECTS OVER WHICH THERE HAS BEEN NO DELEGATION
OF POWER TO THE FEDERAL GOVERNMENT.  BUT, AS WE HAVE POINTED OUT, THE
POWER TO MAKE THIS DEFENDANT SUABLE BY A DISTRICT CITIZEN IS NOT
CLAIMED TO BE OUTSIDE OF FEDERAL COMPETENCE.  IF CONGRESS HAS POWER TO
BRING THE DEFENDANT FROM HIS HOME ALL THE WAY TO A FORUM WITHIN THE
DISTRICT, THERE SEEMS LITTLE BASIS FOR DENYING IT POWER TO REQUIRE HIM
TO MEET THE PLAINTIFF PART WAS IN ANOTHER FORUM.  THE PRACTICAL ISSUE
HERE IS WHETHER, IF DEFENDANT IS TO BE SUABLE AT ALL BY DISTRICT
CITIZENS, HE MUST BE COMPELLED TO COME TO THE COURTS OF THE DISTRICT OF
COLUMBIA OR PERHAPS TO A SPECIAL STATUTORY COURT SITTING OUTSIDE OF IT,
OR WHETHER CONGRESS MAY AUTHORIZE THE REGULAR FEDERAL COURTS TO
ENTERTAIN THE SUIT.  WE SEE NO JUSTIFICATION FOR HOLDING THAT CONGRESS
IN ACCOMPLISHING AN END ADMITTEDLY WITHIN ITS POWER IS RESTRICTED TO
THOSE MEANS WHICH ARE MOST CUMBERSOME AND BURDENSOME TO A DEFENDANT. 
SINCE IT MAY PROVIDE THE DISTRICT CITIZEN WITH A FEDERAL FORUM IN WHICH
TO SUE THE CITIZENS OF ONE OF THE STATES, IT IS HARD TO IMAGINE A
FAIRER OR LESS PREJUDICED ONE THAN THE REGULAR FEDERAL COURTS SITTING
IN THE DEFENDANT'S OWN STATE.  TO VEST THE JURISDICTION IN THEM RATHER
THAN IN COURTS SITTING IN THE DISTRICT OF COLUMBIA WOULD SEEM LESS
HARSH TO DEFENDANTS AND MORE CONSISTENT WITH THE PRINCIPLES OF VENUE
THAT PREVAIL IN OUR SYSTEM UNDER WHICH DEFENDANTS ARE GENERALLY SUABLE
IN THEIR HOME FORUMS. 

THE ACT BEFORE US, AS WE SEE IT, IS NOT A RESORT BY CONGRESS TO THESE
MEANS TO REACH FORBIDDEN ENDS.  RATHER, CONGRESS IS REACHING
PERMISSIBLE ENDS BY A CHOICE OF MEANS WHICH CERTAINLY ARE NOT EXPRESSLY
FORBIDDEN BY THE CONSTITUTION.  NO GOOD REASON IS ADVANCED FOR THE
COURT TO DENY THEM BY IMPLICATION.  IN NO MATTER SHOULD WE PAY MORE
DEFERENCE TO THE OPINIONS OF CONGRESS THAN IN ITS CHOICE OF
INSTRUMENTALITIES TO PERFORM A FUNCTION THAT IS WITHIN ITS POWER.  FN25
TO PUT FEDERALLY ADMINISTERED JUSTICE WITHIN THE REACH OF DISTRICT
CITIZENS, IN CLAIMS AGAINST CITIZENS OF ANOTHER STATE, IS AN OBJECT
WHICH CONGRESS HAS A RIGHT TO ACCOMPLISH.  ITS OWN CAREFULLY CONSIDERED
VIEW THAT IT HAS THE POWER AND THAT IT IS NECESSARY AND PROPER TO
UTILIZE UNITED STATES DISTRICT COURTS AS MEANS TO THIS END, IS ENTITLED
TO GREAT RESPECT.  OUR OWN IDEAS AS TO THE WISDOM OR DESIRABILITY OF
SUCH A STATUTE OR THE CONSTITUTIONAL PROVISION AUTHORIZING IT ARE
TOTALLY IRRELEVANT.  SUCH A LAW OF CONGRESS SHOULD BE STRICKEN DOWN
ONLY ON A CLEAR SHOWING THAT IT TRANSGRESSES CONSTITUTIONAL
LIMITATIONS.  WE THINK NO SUCH SHOWING HAS BEEN MADE.  FN26  THE ACT IS
VALID. 

THE JUDGMENT IS REVERSED. 

FN1  ACT OF APRIL 20, 1940, C. 117, 54 STAT. 143.  FOR TERMS OF THE
STATUTE SEE NOTE 10. 

FN2  NO OPINION WAS FILED BY THE DISTRICT COURT, WHICH IN DISMISSING
THE COMPLAINT FOR LACK OF JURISDICTION RELIED UPON ITS FORMER DECISION
AND OPINION IN FEELY V. SIDNEY S. SCHUPPER INTERSTATE HAULING SYSTEM,
INC., 72 F.SUPP.  663. 

FN3  165 F.2D 531. 

FN4  THE ACT HAD BEEN UPHELD IN WINKLER V. DANIELS, 43 F.SUPP.  265;
GLAESER V. ACACIA MUTUAL LIFE ASSOCIATION, 55 F.SUPP.  925; AND IN DUZE
V. WOOLLEY, 72 F.SUPP.  422(WITH RESPECT TO HAWAII).  IT HAD BEEN HELD
UNCONSTITUTIONAL IN THE DISTRICT COURT IN THE INSTANT CASE; IN CENTRAL
STATES CO-OPERATIVES V. WATSON BROS. TRANSPORTATION CO., AFFIRMED 165
F.2D 392, AND IN MCGARRY V. CITY OF BETHLEHEM, 45 F.SUPP.  385; BEHLERT
V. JAMES FOUNDATION, 60 F.SUPP.  706; OSTROW V. SAMUEL BRILLIANT CO.,
66 F.SUPP.  593; WILSON V. GUGGENHEIM, 70 F.SUPP.  417; FEELY V. SIDNEY
S. SCHUPPER INTERSTATE HAULING SYSTEM, 72 F.SUPP.  663; WILLIS V.
DENNIS, 72 F.SUPP.  853; AND IN MUTUAL BEN.  HEALTH & ACC.  ASSN.  V.
DAILEY, 75 F.SUPP.  832. 

FN5  THE ACT HAD BEEN HELD INVALID BY THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT IN THE INSTANT CASE, 165 F.2D 531, WITH JUDGE PARKER
DISSENTING; AND BY THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN
CENTRAL STATES CO-OPERATIVES V. WATSON BROS. TRANSPORTATION CO., 165
F.2D 392, WITH JUDGE EVANS DISSENTING. 

FN6  333 U.S. 860. 

FN7  U.S. CONST. ART. III, SEC. 2, CL. 1. 

FN8  SEC. 11 OF THE ACT OF SEPT. 24, 1789, C. 20, 1 STAT. 73, 78. 

FN9  HEPBURN & DUNDAS V. ELLZEY, 2 CRANCH 445. 

FN10  THE EFFECT OF THE ACT WAS TO AMEND 28 U.S.C. (1946 ED.)  SEC. 
41(1) SO THAT IT READ IN PERTINENT PART:  "THE DISTRICT COURTS SHALL
HAVE ORIGINAL JURISDICTION AS FOLLOWS:  ...  OF ALL SUITS OF A CIVIL
NATURE, AT COMMON LAW OR IN EQUITY  ...  WHERE THE MATTER IN
CONTROVERSY EXCEEDS, EXCLUSIVE OF INTEREST AND COSTS, THE SUM OR VALUE
OF $3,000, AND  ...  (B) IS BETWEEN CITIZENS OF DIFFERENT STATES, OR
CITIZENS OF THE DISTRICT OF COLUMBIA, THE TERRITORY OF HAWAII, OR
ALASKA, AND ANY STATE OR TERRITORY  ...  " 

FN11  ACT OF JUNE 25, 1948, 62 STAT. 869. 

FN12  28 U.S.C. SEC. 1332. 

FN13  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 407. 

FN14  U.S. CONST. ART. III, SEC. 2, CL. 1. 

FN15  SEE NOTE 8. 

FN16  HEPBURN & DUNDAS V. ELLZEY, 2 CRANCH 445, 453. 

FN17  H.R. REP. NO. 1756, 76TH CONG., 3D SESS., P. 3.  THE SENATE
JUDICIARY COMMITTEE'S REPORT CONSISTS ONLY OF A RECOMMENDATION THAT THE
BILL (H.R. 8822) BE PASSED.  SENATE REPORT NO. 1399, 76TH CONG., 3D
SESS.  PASSAGE IN EACH HOUSE WAS WITHOUT DISCUSSION.  86 CONG. REC.,
PT. 3, P. 3015; 86 CONG. REC., PT. 4, P. 4286. 

FN18  U.S. CONST. ART. I, SEC. 8, CL. 17. 

FN19  U.S. CONST. ART. I, SEC. 8, CL. 18. 

FN20  ACT OF MARCH 3, 1887, C. 359, 24 STAT. 505. 

FN21  THIS CONCURRENT JURISDICTION OF THE DISTRICT COURTS HAS
FREQUENTLY BEEN REFERRED TO IN OPINIONS OF THIS COURT WITH NO
INDICATION THAT IT PRESENTED ANY CONSTITUTIONAL PROBLEM WITH RESPECT TO
THE JURISDICTION OF EITHER THE DISTRICT COURTS OR THIS COURT.  SEE, FOR
EXAMPLE, POPE V. UNITED STATES, 323 U.S. 1; UNITED STATES V. SHERWOOD,
312 U.S. 584; UNITED STATES V. SHAW, 309 U.S. 495; WILLIAMS V. UNITED
STATES, 289 U.S. 553; NASSAU SMELTING WORKS V. UNITED STATES, 266 U.S.
101; UNITED STATES V. PFITSCH, 256 U.S. 547; TEMPEL V. UNITED STATES,
248 U.S. 121; UNITED STATES V. GREATHOUSE, 166 U.S. 601; UNITED STATES
V. JONES, 131 U.S. 1.  THE LEGISLATIVE BASIS FOR THE GRANT OF
JURISDICTION TO THE DISTRICT COURTS IS DELINEATED IN BATES MFG. CO. V.
UNITED STATES, 303 U.S. 567. 

FN22  THE SUGGESTION HERE THAT CLAIMS AGAINST THE UNITED STATES,
ADJUDICATED BY THE COURT OF CLAIMS AND BY THE DISTRICT COURTS SOLELY BY
VIRTUE OF THE WAIVER OF SOVEREIGN IMMUNITY AND THE JURISDICTION GRANTED
UNDER THE TUCKER ACT, MAY BE CASES ARISING "UNDER THE LAWS OF THE
UNITED STATES" IS BOTH ERRONEOUS AND SELF-DEFEATING.  THE UNANIMOUS
DECISION IN THE WILLIAMS CASE, 289 U.S. 553, HOLDS CLEARLY TO THE
CONTRARY, STATING, AT 289 U.S. 577, THAT CONTROVERSIES TO WHICH THE
UNITED STATES MAY BY STATUTE BE MADE A PARTY DEFENDANT "LIE WHOLLY
OUTSIDE THE SCOPE OF THE JUDICIAL POWER VESTED BY ART. III  ...  "  AND
SEE MONACO V. MISSISSIPPI, 292 U.S. 313, 321.  MOREOVER, THE TUCKER ACT
SIMPLY OPENS THOSE COURTS TO PLAINTIFFS ALREADY POSSESSED OF A CAUSE OF
ACTION.  IF THAT IS SUFFICIENT TO MAKE THE CASE ONE ARISING UNDER THE
LAWS OF THE UNITED STATES, THE SAME IS TRUE OF THIS SUIT AND ALL OTHERS
LIKE IT.  NO ONE URGES THAT VIEW OF THE PRESENT STATUTE, NOR COULD
THEY.  SEE NOTE 23 AND TEXT. 

FN23  THE BOOKS ARE REPLETE WITH AUTHORITY ON THIS POINT.  FOR
EXAMPLE, IN SHOSHONE MINING CO. V. RUTTER, 177 U.S. 505, IT WAS SAID,
AT P. 507:  "THE SUIT MUST, IN PART AT LEAST, ARISE OUT OF A
CONTROVERSY BETWEEN THE PARTIES IN REGARD TO THE OPERATION AND EFFECT
OF THE CONSTITUTION OR LAWS UPON THE FACTS INVOLVED.  ...  "  AND AT P.
513:  "  ...  THE MERE FACT THAT A SUIT IS AN ADVERSE SUIT AUTHORIZED
BY THE STATUTES OF CONGRESS IS NOT IN AND OF ITSELF SUFFICIENT TO VEST
JURISDICTION IN THE FEDERAL COURTS."  AND AGAIN AT P. 507 IT IS
CONSIDERED "WELL SETTLED THAT A SUIT TO ENFORCE A RIGHT WHICH TAKES ITS
ORIGIN IN THE LAWS OF THE UNITED STATES IS NOT NECESSARILY ONE ARISING
UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES  ...  "  IN BANKERS
CASUALTY CO. V. MINNEAPOLIS, ST. P. & S.S.M.R. CO., 192 U.S. 371, AT P.
384:  "  ...  SUITS THOUGH INVOLVING THE CONSTITUTION OR LAWS OF THE
UNITED STATES ARE NOT SUITS ARISING UNDER THE CONSTITUTION OR LAWS
WHERE THEY DO NOT TURN ON A CONTROVERSY BETWEEN THE PARTIES IN REGARD
TO THE OPERATION OF THE CONSTITUTION OR LAWS, ON THE FACTS.  ...  "
AND AT P. 385:  "WE REPEAT THAT THE RULE IS SETTLED THAT A CASE DOES
NOT ARISE UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES UNLESS IT
APPEARS FROM PLAINTIFF'S OWN STATEMENT, IN THE OUTSET, THAT SOME TITLE,
RIGHT, PRIVILEGE OR IMMUNITY ON WHICH RECOVERY DEPENDS WILL BE DEFEATED
BY ONE CONSTRUCTION OF THE CONSTITUTION OR LAWS OF THE UNITED STATES,
OR SUSTAINED BY THE OPPOSITE CONSTRUCTION."  IN LOUISVILLE & NASHVILLE
R. CO. V. MOTTLEY, 211 U.S. 149, 152, ALLEGATIONS DESIGNED TO ESTABLISH
THAT THE CASE ARISES UNDER THE CONSTITUTION ARE SAID TO BE INSUFFICIENT
IF THEY DO NOT SHOW THAT "THE SUIT, THAT IS, THE PLAINTIFF'S ORIGINAL
CAUSE OF ACTION," DOES SO ARISE.    FN24  NO QUESTION HAS BEEN RAISED
HERE AS TO THE SOURCE OF THIS COURT'S APPELLATE JURISDICTION OVER SUCH
CASES.  NOR DO WE SEE HOW THAT ISSUE COULD BE RAISED WITHOUT
CHALLENGING OUR PAST AND PRESENT EXERCISE OF JURISDICTION OVER CASES
ADJUDICATED IN THE DISTRICT COURTS AND IN THE COURT OF CLAIMS, SOLELY
UNDER THE TUCKER ACT, SEE POPE V. UNITED STATES, 323 U.S. 1, 13-14, AND
SEE NOTES 21, 22; AND UNDER THE FEDERAL TORT CLAIMS ACT, SEE BROOKS V.
UNITED STATES, ANTE, P. 49. 

FN25  CHIEF JUSTICE MARSHALL, IN MCCULLOCH V. MARYLAND, 4 WHEAT. 
316, 420-421, SAID:  "THE RESULT OF THE MOST CAREFUL AND ATTENTIVE
CONSIDERATION BESTOWED UPON THIS (THE 'NECESSARY AND PROPER') CLAUSE
IS, THAT IF IT DOES NOT ENLARGE, IT CANNOT BE CONSTRUED TO RESTRAIN THE
POWERS OF CONGRESS, OR TO IMPAIR THE RIGHT OF THE LEGISLATURE TO
EXERCISE ITS BEST JUDGMENT IN THE SELECTION OF MEASURES TO CARRY INTO
EXECUTION THE CONSTITUTIONAL POWERS OF THE GOVERNMENT.  ...  WE ADMIT,
AS ALL MUST ADMIT, THAT THE POWERS OF THE GOVERNMENT ARE LIMITED, AND
THAT ITS LIMITS ARE NOT TO BE TRANSCENDED.  BUT WE THINK THE SOUND
CONSTRUCTION OF THE CONSTITUTION MUST ALLOW TO THE NATIONAL LEGISLATURE
THAT DISCRETION, WITH RESPECT TO THE MEANS BY WHICH THE POWERS IT
CONFERS ARE TO BE CARRIED INTO EXECUTION, WHICH WILL ENABLE THAT BODY
TO PERFORM THE HIGH DUTIES ASSIGNED TO IT, IN THE MANNER MOST
BENEFICIAL TO THE PEOPLE.  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." 

FN26  IT WOULD NOT BE PROFITABLE TO REVIEW THE NUMEROUS CASES IN
WHICH, DURING THE CONSIDERATION OF OTHER PROBLEMS, THIS COURT HAS MADE
STATEMENTS CONCERNING THE NATURE AND EXTENT OF CONGRESS' POWER TO
LEGISLATE FOR THE DISTRICT OF COLUMBIA AND ITS CONTROL OVER THE
JURISDICTION OF BOTH CONSTITUTIONAL AND LEGISLATIVE COURTS.  THE ISSUE
NOW PRESENTED SQUARELY FOR DECISION WAS NOT DECIDED IN ANY OF THEM.  WE
ADHERE TO CHIEF JUSTICE MARSHALL'S ADMONITION IN COHENS V. VIRGINIA, 6
WHEAT.  264, 399, THAT SUCH EXPRESSIONS "OUGHT NOT TO CONTROL THE
JUDGMENT IN A SUBSEQUENT SUIT WHEN THE VERY POINT IS PRESENTED FOR
DECISION." 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE MURPHY AGREES,
CONCURRING. 

I JOIN IN THE COURT'S JUDGMENT.  BUT I STRONGLY DISSENT FROM THE
REASONS ASSIGNED TO SUPPORT IT IN THE OPINION OF MR. JUSTICE JACKSON. 

WHILE GIVING LIP SERVICE TO THE VENERABLE DECISION IN HEPBURN &
DUNDAS V. ELLZEY, 2 CRANCH 445, AND PURPORTING TO DISTINGUISH IT, THAT
OPINION IGNORES NEARLY A CENTURY AND A HALF OF SUBSEQUENT CONSISTENT
CONSTRUCTION.  FN1  IN ALL PRACTICAL CONSEQUENCE, IT WOULD OVERRULE
THAT DECISION WITH ITS LATER REAFFIRMATIONS.  PERTINENTLY IT MAY BE
ASKED, HOW AND WHERE ARE THOSE DECISIONS TO OPERATE, IF NOT JUST IN THE
SITUATION PRESENTED BY THIS CASE?  AND, IF THERE IS NO OTHER, WOULD
THEY NOT BE EFFECTIVELY OVERRULED? 

WHAT IS FAR WORSE AND MORE IMPORTANT, THE MANNER IN WHICH THIS
REVERSAL WOULD BE MADE, IF ADHERED TO BY A MAJORITY OF THE COURT, WOULD
ENTANGLE EVERY DISTRICT COURT OF THE UNITED STATES FOR THE FIRST TIME
IN ALL OF THE CONTRADICTIONS, COMPLEXITIES AND SUBTLETIES WHICH HAVE
SURROUNDED THE COURTS OF THE DISTRICT OF COLUMBIA IN THE MAZE WOVEN BY
THE "LEGISLATIVE COURT - CONSTITUTIONAL COURT" CONTROVERSY RUNNING
THROUGH THIS COURT'S DECISION CONCERNING THEM.  FN2 

IN MY OPINION IT WOULD BE BETTER TO CONTINUE FOLLOWING WHAT I
CONCEIVE TO BE THE ORIGINAL ERROR OF THE HEPBURN DECISION AND ITS
PROGENY THAN THUS TO ENSNARL THE GENERAL SYSTEM OF FEDERAL COURTS. 
JURISDICTIONAL AND DOCTRINAL TROUBLES ENOUGH WE HAVE CONCERNING THEM
WITHOUT ADDING OTHERS BY RULING NOW THAT THEY HAVE THE ORIGIN AND
JURISDICTION OF "LEGISLATIVE" COURTS IN ADDITION TO THAT OF
"CONSTITUTIONAL" COURTS CREATED UNDER ARTICLE III, WITH WHICH ALONE
THEY HERETOFORE HAVE BEEN HELD ENDOWED. 

MOREOVER, HOWEVER THIS CASE MAY BE DECIDED, THERE IS NO REAL ESCAPE
FROM DECIDING WHAT THE WORD "STATE" AS USED IN ARTICLE III, SEC. 2 OF
THE CONSTITUTION MEANS.  FOR IF IT IS A LIMITATION ON CONGRESS' POWER
AS TO COURTS CREATED UNDER THAT ARTICLE, IT IS HARD TO SEE HOW IT
BECOMES NO LIMITATION WHEN CONGRESS DECIDES TO CAST IT OFF UNDER SOME
OTHER ARTICLE, EVEN ONE RELATING TO ITS AUTHORITY OVER THE DISTRICT OF
COLUMBIA.  IF THIS MAY BE DONE IN THE NAME OF PRACTICAL CONVENIENCE AND
DUAL AUTHORITY, OR BECAUSE CONGRESS MIGHT FIND SOME OTHER
CONSTITUTIONAL WAY TO MAKE CITIZENS OF THE DISTRICT SUABLE ELSEWHERE OR
TO BRING HERE FOR SUIT CITIZENS FROM ANY PART OF THE COUNTRY, THEN WHAT
IS A LIMITATION IMPOSED ON THE FEDERAL COURTS GENERALLY IS NONE WHEN
CONGRESS DECIDES TO DISREGARD IT BY PURPORTING TO ACT UNDER SOME OTHER
AUTHORIZATION. 

THE CONSTITUTION IS NOT SO SELF-CONTRADICTORY.  NOR ARE ITS
LIMITATIONS TO BE SO EASILY EVADED.  THE VERY ESSENCE OF THE PROBLEM IS
WHETHER THE CONSTITUTION MEANT TO CUT OUT FROM THE DIVERSITY
JURISDICTION OF COURTS CREATED UNDER ARTICLE III SUITS BROUGHT BY OR
AGAINST CITIZENS OF THE DISTRICT OF COLUMBIA.  THAT QUESTION IS NOT
ANSWERED BY SAYING IN ONE BREATH THAT IT DID AND IN THE NEXT THAT IT
DID NOT. 

                                  I. 

PRIOR TO ENACTMENT OF THE 1940 STATUTE TODAY CONSIDERED, FEDERAL
COURTS OF THE DISTRICT OF COLUMBIA WERE THE ONLY FEDERAL COURTS WHICH
HAD JURISDICTION TO TRY NONFEDERAL CIVIL ACTIONS BETWEEN CITIZENS OF
THE DISTRICT AND CITIZENS OF THE SEVERAL STATES.  THE DOORS OF FEDERAL
COURTS IN EVERY STATE, OPEN TO SUITS BETWEEN PARTIES OF DIVERSE STATE
CITIZENSHIP BY VIRTUE OF ARTICLE III, SEC. 2(AS IMPLEMENTED BY
CONTINUOUS CONGRESSIONAL ENACTMENT), WERE CLOSED TO CITIZENS OF THE
DISTRICT OF COLUMBIA.  THE 1940 STATUTE WAS CONGRESS' FIRST EXPRESS
ATTEMPT TO REMEDY THE INEQUALITY WHICH HAS OBTAINED EVER SINCE CHIEF
JUSTICE MARSHALL, IN HEPBURN & DUNDAS V. ELLZEY, SUPRA, CONSTRUED THE
FIRST JUDICIARY ACT TO EXCLUDE CITIZENS OF THE DISTRICT OF COLUMBIA. 
MARSHALL'S CONSTRUCTION OF THE 1789 STATUTE WAS FOUNDED ON HIS
CONCLUSION THAT THE COMPARABLE LANGUAGE OF THE DIVERSITY CLAUSE IN
ARTICLE III, SEC. 2 - "CITIZENS OF DIFFERENT STATES" - DID NOT EMBRACE
CITIZENS OF THE DISTRICT. 

MARSHALL'S VIEW OF THE 1789 ACT, ITERATED IN HIS LATER DICTUM, NEW
ORLEANS V. WINTER, 1 WHEAT.  91, 94; CF. SERE V. PITOT, 6 CRANCH 332,
336, HAS BEEN CONSISTENTLY ADHERED TO IN JUDICIAL INTERPRETATION OF
LATER CONGRESSIONAL GRANTS OF JURISDICTION.  FN3  AND, BY ACCRETION,
THE RULE OF THE HEPBURN CASE HAS ACQUIRED THE FORCE OF A CONSIDERED
DETERMINATION THAT, WITHIN THE MEANING OF ARTICLE III, SEC. 2, "THE
DISTRICT OF COLUMBIA IS NOT A STATE"  FN4  AND ITS CITIZENS ARE
THEREFORE NOT CITIZENS OF ANY STATE WITHIN THAT ARTICLE'S MEANING. 

THE OPINION OF MR. JUSTICE JACKSON IN WORDS "REAFFIRMS" THIS VIEW OF
THE DIVERSITY CLAUSE.  NEVERTHELESS, FACED WITH AN EXPLICIT
CONGRESSIONAL COMMAND TO EXTEND JURISDICTION IN NONFEDERAL CASES TO THE
CITIZENS OF THE DISTRICT OF COLUMBIA, IT FINDS THAT CONGRESS HAS POWER
TO ADD TO THE ARTICLE III JURISDICTION OF FEDERAL DISTRICT COURTS SUCH
FURTHER JURISDICTION AS CONGRESS MAY THINK "NECESSARY AND PROPER,"
CONST., ART. I, SEC. 8, CL. 18, TO IMPLEMENT ITS POWER OF "EXCLUSIVE
LEGISLATION," CONST., ART. I, SEC. 8, CL. 17, OVER THE DISTRICT OF
COLUMBIA; AND THEREBY TO ESCAPE FROM THE LIMITATIONS OF ARTICLE III. 

FROM THIS REASONING I DISSENT.  FOR I THINK THAT THE ARTICLE III
COURTS IN THE SEVERAL STATES CANNOT BE VESTED, BY VIRTUE OF OTHER
PROVISIONS OF THE CONSTITUTION, WITH POWERS SPECIFICALLY DENIED THEM BY
THE TERMS OF ARTICLE III.  IF WE ACCEPT THE ELEMENTARY DOCTRINE THAT
THE WORDS OF ARTICLE III ARE NOT SELF-EXERCISING GRANTS OF JURISDICTION
TO THE INFERIOR FEDERAL COURTS,  FN5 THEN I THINK THOSE WORDS MUST MARK
THE LIMITS OF THE POWER CONGRESS MAY CONFER ON THE DISTRICT COURTS IN
THE SEVERAL STATES.  AND I DO NOT THINK WE OR CONGRESS CAN OVERRIDE
THOSE LIMITS THROUGH INVOCATION OF ARTICLE I WITHOUT MAKING THE
CONSTITUTION A SELF-CONTRADICTING INSTRUMENT.  IF MARSHALL CORRECTLY
READ ARTICLE III AS PREVENTING CONGRESS FROM UNLOCKING THE COURTHOUSE
DOOR TO CITIZENS OF THE DISTRICT, IT SEEMS PAST BELIEF THAT ARTICLE I
WAS DESIGNED TO ENABLE CONGRESS TO PICK THE LOCK.  FOR THE DIVERSITY
JURISDICTION HERE THUS SUSTAINED IS IDENTICAL IN ALL RESPECTS WITH THE
DIVERSITY JURISDICTION THOUGHT TO BE CLOSED TO DISTRICT CITIZENS BY
ARTICLE III:  IT IS JUSTICE ADMINISTERED IN THE SAME COURTROOM AND
UNDER THE SUPERVISION OF THE SAME JUDGE; IT IS, PRESUMPTIVELY, JUSTICE
FASHIONED BY THE FEDERAL RULES OF CIVIL PROCEDURE AND, NOW, UNDER THE
AEGIS OF ERIE R. CO. V. TOMPKINS.  FN6  THE JURISDICTION TODAY THUS
UPHELD IS NOT SIMPLY AN EXPURGATED VERSION OF A BANNED ORIGINAL; IT IS
THE REAL THING. 

TO CIRCUMVENT THE LIMITS OF ARTICLE III, IT IS SAID, AFTER FINDING A
CONTRARY AND OVERRIDING INTENT IN ARTICLE I, THAT ARTICLE III DISTRICT
COURTS IN THE SEVERAL STATES CAN ALSO BE VESTED WITH JURISDICTION
SPRINGING FROM ARTICLE I. THE ONLY EXPRESS HOLDING WHICH CONCEIVABLY
COULD LEND COMFORT TO THIS DOCTRINE OF DUAL JURISDICTION IS THIS
COURT'S CONCLUSION IN O'DONOGHUE V. UNITED STATES, 289 U.S. 516, THAT
CERTAIN COURTS OF THE DISTRICT OF COLUMBIA, THERETOFORE DEEMED
LEGISLATIVE COURTS CREATED UNDER ARTICLE I,  FN7  OWE THEIR
JURISDICTION TO ARTICLE I AND ARTICLE III.  WITH THE MERITS OF THE
O'DONOGHUE DECISION IN HOLDING THAT ARTICLE III BARRED SALARY
REDUCTIONS FOR JUDGES OF THE COURTS IN QUESTION, WE ARE NOT PRESENTLY
CONCERNED.  SUFFICE IT TO POINT OUT THAT THE EXPRESS LANGUAGE OF THE
O'DONOGHUE DECISION NEGATIVES THE VIEW THAT FEDERAL COURTS IN THE
SEVERAL STATES SHARE THIS HYBRID HERITAGE: 

"  ...  CONGRESS DERIVES FROM THE DISTRICT CLAUSE DISTINCT POWERS IN
RESPECT OF THE CONSTITUTIONAL COURTS OF THE DISTRICT WHICH CONGRESS
DOES NOT POSSESS IN RESPECT OF SUCH COURTS OUTSIDE THE DISTRICT."  FN8 

THE LIMITS OF THE O'DONOGHUE DECISION ARE ONLY UNDERSCORED BY THE
DISSENTING VIEW OF CHIEF JUSTICE HUGHES AND JUSTICES VAN DEVANTER AND
CARDOZO THAT ALL DISTRICT OF COLUMBIA COURTS ARE SOLELY THE CREATURES
OF ARTICLE I: 

"AS THE COURTS OF THE DISTRICT DO NOT REST FOR THEIR CREATION ON SEC.
1 OF ARTICLE III, THEIR CREATION IS NOT SUBJECT TO ANY OF THE
LIMITATIONS OF THAT PROVISION.  NOR WOULD THOSE LIMITATIONS, IF
CONSIDERED TO BE APPLICABLE, BE SUSCEPTIBLE OF DIVISION SO THAT SOME
MIGHT BE DEEMED OBLIGATORY AND OTHERS MIGHT BE IGNORED."  289 U.S. AT
552. 

COMFORT IS SOUGHT TO BE DRAWN, HOWEVER, FROM THIS COURT'S RATIONALE
IN WILLIAMS V. UNITED STATES, 289 U.S. 553, WHICH, IN SANCTIONING
SALARY REDUCTIONS FOR JUDGES OF THE COURT OF CLAIMS, HELD THAT THAT
COURT DID NOT DERIVE ITS JURISDICTION FROM ARTICLE III.  THAT
CONCLUSION STEMMED IN PART FROM THE PROPOSITION THAT SUITS AGAINST THE
UNITED STATES ARE NOT "CONTROVERSIES TO WHICH THE UNITED STATES SHALL
BE A PARTY," WITHIN THE MEANING OF ARTICLE III, SEC. 2.  HENCE, IT IS
SAID, THE PERMISSIBLE INFERENCE IS THAT THE LONG-ESTABLISHED CONCURRENT
JURISDICTION OF DISTRICT COURTS OVER CLAIMS AGAINST THE UNITED STATES
IS LIKEWISE NOT DERIVED FROM ARTICLE III.  FN9  WE NEED NOT TODAY
DETERMINE THE NATURE OF DISTRICT COURT JURISDICTION OF SUITS AGAINST
THE UNITED STATES.  SUFFICE IT TO SAY THAT, IF SUCH SUITS ARE NOT
"CONTROVERSIES TO WHICH THE UNITED STATES SHALL BE A PARTY," THEY ARE
PRESUMPTIVELY WITHIN THE PURVIEW OF THE FEDERAL-QUESTION JURISDICTION
TO WHICH MR. JUSTICE FRANKFURTER'S OPINION DIRECTS OUR ATTENTION - THE
ARTICLE III, SEC. 2 GRANT OF POWER OVER "CASES  ...  ARISING UNDER  ...
THE LAWS OF THE UNITED STATES."  THIS IS, AT LEAST, THE CONVENTIONAL
VIEW OF DISTRICT COURT JURISDICTION UNDER THE TUCKER ACT.  2 MOORE,
FEDERAL PRACTICE (2D ED., 1948) 1633. 

BUT, IN ANY EVENT, TO RELY ON WILLIAMS AS DISPOSITIVE OF THE PRESENT
CASE IS TO RELY ON A BENDING REED:  WILLIAMS AND O'DONOGHUE WERE
COMPANION CASES, ARGUED TOGETHER AND DECIDED TOGETHER; AND THE OPINIONS
WERE WRITTEN BY THE SAME JUSTICE.  ACCORDINGLY, WHAT WAS SAID IN ONE
MUST BE READ IN THE LIGHT OF WHAT WAS SAID IN THE OTHER.  O'DONOGHUE,
AS HAS BEEN OBSERVED, EXPRESSLY REJECTED THE PROPOSITION TODAY
ANNOUNCED - THAT CONGRESS CAN VEST IN CONSTITUTIONAL COURTS OUTSIDE THE
DISTRICT OF COLUMBIA JURISDICTION DERIVED FROM THE DISTRICT CLAUSE OF
ARTICLE I. 

BUT O'DONOGHUE WENT FURTHER, AND IN SO DOING UNDERMINED ANY
IMPLICATION IN WILLIAMS THAT ARTICLE III COURTS OUTSIDE THE DISTRICT
COULD BE VESTED WITH ANY FORM OF NON-ARTICLE III JURISDICTION, WHEN IT
POINTED OUT THAT NO COURTS OF THE DISTRICT OF COLUMBIA COULD BE GRANTED
"ADMINISTRATIVE AND OTHER JURISDICTION," IF, "IN CREATING AND DEFINING
THE JURISDICTION OF THE COURTS OF THE DISTRICT, CONGRESS WERE LIMITED
TO ART. III, AS IT IS IN DEALING WITH THE OTHER FEDERAL COURTS ...  "
289 U.S. AT 546.  MOREOVER, THE JUSTICES WHO DISSENTED FROM THE
O'DONOGHUE RATIONALE OF DUAL JURISDICTION EXPRESSED NO DISAGREEMENT
WITH THE WILLIAMS OPINION.  IN THESE CIRCUMSTANCES, CERTAINLY NO MORE
STRENGTH CAN BE DRAWN FROM THE LANGUAGE OF A CASE UPHOLDING SALARY
REDUCTIONS FOR ONE GROUP OF JUDGES THAN FROM THE HOLDING IN A CASE
STRIKING DOWN SALARY REDUCTIONS FOR ANOTHER GROUP OF JUDGES.    NOR IS
THERE MERIT IN THE VIEW THAT THE BANKRUPTCY JURISDICTION OF DISTRICT
COURTS DOES NOT STEM FROM ARTICLE III.  OF COURSE IT IS TRUE THAT
ARTICLE I IS THE SOURCE OF CONGRESSIONAL POWER OVER BANKRUPTCY, AS IT
IS THE SOURCE OF CONGRESSIONAL POWER OVER INTERSTATE COMMERCE,
TAXATION, THE COINING OF MONEY, AND OTHER POWERS CONFIDED BY THE STATES
TO THE EXCLUSIVE EXERCISE OF THE NATIONAL LEGISLATURE.  BUT, AS MR.
JUSTICE FRANKFURTER'S OPINION MAKES CLEAR, FEDERAL COURT ADJUDICATION
OF DISPUTES ARISING PURSUANT TO BANKRUPTCY AND OTHER LEGISLATION IS
CONVENTIONAL FEDERAL-QUESTION JURISDICTION.  AND NO CASE CITED IN ANY
OF TODAY'S OPINIONS REMOTELY SUGGESTS THE CONTRARY. 

FURTHERMORE, NO CASE CITED SUPPORTS THE VIEW THAT JURISDICTION OVER A
SUIT TO COLLECT ESTATE ASSETS UNDER SEC. 23(B) OF THE BANKRUPTCY ACT,
BROUGHT BY THE TRUSTEE IN A DISTRICT COURT WITH THE "CONSENT" OF THE
DEFENDANT, IS A DEPARTURE FROM THE GENERAL RULE AND IS DERIVED FROM
ARTICLE I ALONE.  TO BE SURE, ALTHOUGH THIS COURT INDICATED A CONTRARY
VIEW IN THE EARLY CASE OF LOVELL V. NEWMAN & SON, 227 U.S. 412, 426,
CHIEF JUSTICE HUGHES' OPINION IN SCHUMACHER V. BEELER, 293 U.S. 367,
MADE IT PERFECTLY CLEAR THAT DISTRICT COURTS CAN, WITH THE CONSENT OF
THE PROPOSED DEFENDANT, ENTERTAIN TRUSTEE SUITS UNDER SEC. 23(B) WHICH
THE BANKRUPT, BUT FOR THE BANKRUPTCY ACT, COULD NOT HAVE PROSECUTED IN
A FEDERAL COURT ABSENT DIVERSITY OR SOME INDEPENDENT FEDERAL QUESTION
"ARISING UNDER  ...  THE LAWS OF THE UNITED STATES."  THE OPINION
STATED: 

"CONFLICTING VIEWS HAVE BEEN HELD OF THE MEANING OF THE PROVISION FOR
CONSENT IN SEC. 23(B).  IN ONE VIEW, THE PROVISION RELATES MERELY TO
VENUE, THAT IS, ONLY TO A CONSENT TO THE 'LOCAL JURISDICTION.'  ...
THE OPPOSING VIEW WAS SET FORTH BY THE COURT BELOW IN TOLEDO FENCE &
POST CO. V. LYONS, 290 FED. 637, 645, AND THAT DECISION WAS FOLLOWED IN
THE INSTANT CASE.  ...  IT PROCEEDS UPON THE GROUND THAT THE CONGRESS
HAD POWER TO PERMIT SUITS BY TRUSTEES IN BANKRUPTCY IN THE FEDERAL
COURTS AGAINST ADVERSE CLAIMANTS, REGARDLESS OF DIVERSITY OF
CITIZENSHIP, AND THAT BY SEC. 23(B) THE CONGRESS INTENDED THAT THE
FEDERAL COURTS SHOULD HAVE THAT JURISDICTION IN CASES WHERE THE
DEFENDANT GAVE CONSENT, AND, WITHOUT THAT CONSENT, IN CASES WHICH FELL
WITHIN THE STATED EXCEPTIONS. 

"WE THINK THAT THE LATTER VIEW IS THE CORRECT ONE."  293 U.S. AT
371. 

CHIEF JUSTICE HUGHES' OPINION DOES NOT INTIMATE THAT THIS "CONSENT
JURISDICTION" ARISES SOLELY FROM ARTICLE I. QUITE THE CONTRARY, THE
OPINION BY JUDGE DENISON OUTLINING THE "VIEW" WHICH THE CHIEF JUSTICE
DESCRIBED AS "THE CORRECT ONE" EXPRESSLY STATED THAT SUCH SUITS ARE A
SEGMENT OF THE DISTRICT COURT'S FEDERAL-QUESTION JURISDICTION: 

"THE TRUSTEE MUST ALLEGE AND PROVE THAT VALID PROCEEDINGS WERE TAKEN
UNDER THE BANKRUPTCY ACT, LEADING TO A VALID ADJUDICATION, WHEREBY
TITLE PASSED, AND THAT BY VALID PROCEEDINGS UNDER THE ACT HE WAS CHOSEN
AS TRUSTEE.  IF THE PROOF FAILS IN ANY OF THESE PARTICULARS, THE SUIT
FAILS.  THE SUIT IS ONE STEP IN THE COLLECTION OF ASSETS IN THE
EXECUTION OF THE BANKRUPTCY ACT.  THAT SUCH A CASE WOULD BE ONE
'ARISING UNDER THE LAWS OF THE UNITED STATES' WE THINK IS THE RESULT OF
WELL-SETTLED PRINCIPLES.  IT WILL BE OBSERVED THAT UNDER THE
CONSTITUTIONAL LIMITATIONS OF THE FEDERAL JUDICIAL POWER (ARTICLE 3,
SEC. 2), AND WITH EXCEPTIONS NOT TO THIS QUESTION IMPORTANT, CONGRESS
HAS NO POWER TO CONFER JURISDICTION ON THE INFERIOR FEDERAL COURTS
EXCEPTING AS TO SUITS WHICH DO SO ARISE; AND EVERY DECISION WHICH
UPHOLDS THE RIGHT TO SUE IN THE FEDERAL COURT BY ONE WHO MERELY
ACQUIRES TITLE THROUGH THE OPERATION OF A FEDERAL LAW IS THEREFORE, BY
NECESSARY IMPLICATION, A HOLDING THAT SUCH A SUIT 'ARISES UNDER'
FEDERAL LAWS."  TOLEDO FENCE & POST CO. V. LYONS, 290 F. 637, 641; AND
CF. BEELER V. SCHUMACHER, 71 F.2D 831, 833. 

THERE SEEMS NO REASON THEREFORE TO SUPPOSE THAT THIS COURT, IN
HOLDING "CORRECT" THE VIEW THAT DISTRICT COURTS HAVE JURISDICTION OVER
A TRUSTEE SUIT WHICH COULD NOT HAVE BEEN BROUGHT BY THE BANKRUPT,
REJECTED THE EXPLICIT ARTICLE III BASIS OF THAT JURISDICTION. 

AND NEITHER RELIANCE ON GULLY V. FIRST NATIONAL BANK, 299 U.S. 109;
PUERTO RICO V. RUSSELL & CO., 288 U.S. 476, AND RELATED CASES, NOR THE
SUGGESTION THAT "A SUIT ARISES UNDER THE LAW THAT CREATES THE CAUSE OF
ACTION," AMERICAN WELL WORKS V. LAYNE, 241 U.S. 257, 260, COMPELS THE
CONCLUSION THAT CONGRESS COULD NOT AND DID NOT CLASSIFY SEC. 23(B)
SUITS TO COLLECT ESTATE ASSETS AS FEDERAL-QUESTION CASES ARISING UNDER
THE BANKRUPTCY ACT.  AS THIS COURT HAS HAD OCCASION TO OBSERVE, A
"'CAUSE OF ACTION' MAY MEAN ONE THING FOR ONE PURPOSE AND SOMETHING
DIFFERENT FOR ANOTHER."  UNITED STATES V. MEMPHIS COTTON OIL CO., 288
U.S. 62, 67-68; AND SEE GULLY V. FIRST NATIONAL BANK, SUPRA, AT 117. 
SIMILARLY, AS STUDENTS OF FEDERAL JURISDICTION HAVE TAKEN PAINS TO
POINT OUT, THE "SUBSTANTIAL IDENTITY OF THE WORDS" IN THE
CONSTITUTIONAL AND STATUTORY GRANTS OF FEDERAL-QUESTION JURISDICTION,
"DOES NOT, OF COURSE, REQUIRE, ON THAT SCORE ALONE, AN IDENTICAL
INTERPRETATION."  SHULMAN AND JAEGERMAN, SOME JURISDICTIONAL
LIMITATIONS ON FEDERAL PROCEDURE, 45 YALE L.J. 393, 405, N. 47(1936). 
CONFUSION OF THE TWO IS A NATURAL, BUT NOT AN INSURMOUNTABLE, HAZARD. 
THE GULLY AND PUERTO RICO CASES WERE CONCERNED WITH THE GENERAL
STATUTORY GRANT TO DISTRICT COURTS OF JURISDICTION OVER FEDERAL
QUESTIONS; THEY WERE NOT CONCERNED WITH THE CONSTITUTIONAL GRANT OF
JURISDICTION, NOR WITH THE SPECIFIC STATUTORY GRANT OF JURISDICTION
FOUND IN THE BANKRUPTCY ACT AND APPROVED IN SCHUMACHER V. BEELER,
SUPRA. 

IT HAS NEVER HERETOFORE BEEN DOUBTED THAT THE CONSTITUTIONAL GRANT OF
POWER IS BROADER THAN THE GENERAL FEDERAL-QUESTION JURISDICTION WHICH
CONGRESS HAS FROM TIME TO TIME THOUGHT TO CONFER ON DISTRICT COURTS BY
STATUTE.  IN ONE OF THE FEDERAL LAND-GRANT CASES RELIED ON IN MR.
JUSTICE JACKSON'S OPINION, THIS COURT HAD OCCASION TO MAKE THIS
DISTINCTION CLEAR: 

"BY THE CONSTITUTION (ART. 3, SEC. 2) THE JUDICIAL POWER OF THE
UNITED STATES EXTENDS 'TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER
THIS CONSTITUTION, THE LAWS OF THE UNITED STATES' AND TO CONTROVERSIES
'BETWEEN CITIZENS OF DIFFERENT STATES.'  BY ARTICLE 4, S. 3, CL. 2,
CONGRESS IS GIVEN 'POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND
REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE
UNITED STATES.'  UNDER THESE CLAUSES CONGRESS MIGHT DOUBTLESS PROVIDE
THAT ANY CONTROVERSY OF A JUDICIAL NATURE ARISING IN OR GROWING OUT OF
THE DISPOSAL OF THE PUBLIC LANDS SHOULD BE LITIGATED ONLY IN THE COURTS
OF THE UNITED STATES.  THE QUESTION, THEREFORE, IS NOT ONE OF THE POWER
OF CONGRESS, BUT OF ITS INTENT.  IT HAS SO CONSTRUCTED THE JUDICIAL
SYSTEM OF THE UNITED STATES THAT THE GREAT BULK OF LITIGATION
RESPECTING RIGHTS OF PROPERTY, ALTHOUGH THOSE RIGHTS MAY IN THEIR
INCEPTION GO BACK TO SOME LAW OF THE UNITED STATES, IS IN FACT CARRIED
ON IN THE COURTS OF THE SEVERAL STATES."  SHOSHONE MINING COMPANY V.
RUTTER, 177 U.S. 505, 506. 

INDEED, WERE WE TO ADOPT THE VIEW THAT THE GULLY RULE IS A TEST
APPLICABLE TO THE CONSTITUTIONAL PHRASE, WE WOULD EFFECTIVELY REPUDIATE
CHIEF JUSTICE MARSHALL'S CONCLUSION IN OSBORN V. BANK OF THE UNITED
STATES, 9 WHEAT.  738, THAT CONGRESS CAN ALLOW A FEDERALLY CHARTERED
CORPORATION TO BRING ALL ITS LITIGATION INTO FEDERAL COURTS FOR THE
REASON THAT, SOLELY BY VIRTUE OF THE CORPORATION'S FEDERAL ORIGIN, ALL
SUITS TO WHICH THE CORPORATION IS A PARTY ARE SUITS "ARISING UNDER  ...
THE LAWS OF THE UNITED STATES" WITHIN THE MEANING OF ARTICLE III.  THE
RULE OF THE BANK OF THE UNITED STATES CASE, REITERATED IN THE PACIFIC
RAILROAD REMOVAL CASES, 115 U.S. 1; MATTER OF DUNN, 212 U.S. 374;
AMERICAN BANK & TRUST CO. V. FEDERAL BANK, 256 U.S. 350; SOWELL V.
FEDERAL RESERVE BANK, 268 U.S. 449; AND FEDERAL BANK V. MITCHELL, 277
U.S. 213, HAS BEEN LIMITED BY STATUTE BUT NEVER BY SUBSEQUENT
CONSTITUTIONAL CONSTRUCTION.  THE SURVIVAL OF THE RULE WAS ACKNOWLEDGED
BY MR. JUSTICE STONE IN PUERTO RICO V. RUSSELL & CO., SUPRA AT 485, AND
BY MR. JUSTICE CARDOZO IN GULLY V. FIRST NATIONAL BANK, SUPRA, AT 114. 

IN SHORT, CONGRESS HAS AT NO TIME CONFERRED ON FEDERAL DISTRICT
COURTS ORIGINAL JURISDICTION OVER ALL FEDERAL QUESTIONS, PREFERRING TO
LEAVE TRIAL OF MANY AND PERHAPS MOST SUCH QUESTIONS TO STATE
ADJUDICATION, SUBJECT TO THE ULTIMATE REVIEW OF THIS COURT.  BUT
EXCEPTIONS TO THE CONGRESSIONAL POLICY OF LIMITATION THERE HAVE BEEN,
AND ONE OF THESE IS THE TRUSTEE SUIT UNDER SEC. 23(B).  2 MOORE,
FEDERAL PRACTICE (2D ED., 1948) 1633. 

THUS I SEE NO WARRANT FOR GYMNASTIC EXPANSION OF THE JURISDICTION OF
FEDERAL COURTS OUTSIDE THE DISTRICT.  AT LEAST AS TO THESE LATTER
COURTS SITTING IN THE STATES, I HAVE THOUGHT IT PLAIN THAT ARTICLE III
DESCRIBED AND DEFINED THEIR "JUDICIAL POWER," AND THAT WHERE "POWER
PROPOSED TO BE CONFERRED  ...  WAS NOT JUDICIAL POWER WITHIN THE
MEANING OF THE CONSTITUTION  ...  (IT) WAS, THEREFORE,
UNCONSTITUTIONAL, AND COULD NOT LAWFULLY BE EXERCISED BY THE COURTS." 
FN10 

IF ARTICLE III WERE NO LONGER TO SERVE AS THE CRITERION OF DISTRICT
COURT JURISDICTION, I SHOULD BE AT A LOSS TO UNDERSTAND WHAT TASKS,
WITHIN THE CONSTITUTIONAL COMPETENCE OF CONGRESS, MIGHT NOT BE ASSIGNED
TO DISTRICT COURTS.  AT ALL EVENTS, INTIMATIONS THAT DISTRICT COURTS
COULD ONLY UNDERTAKE THE DETERMINATION OF "JUSTICIABLE" CONTROVERSIES
SEEM INAPPROPRIATE, SINCE THE VERY CLAUSE OF ARTICLE I TODAY RELIED ON
HAS LONG BEEN REGARDED AS THE SOURCE OF THE "LEGISLATIVE," KELLER V.
POTOMAC ELECTRIC CO., 261 U.S. 428, AND "ADMINISTRATIVE," POSTUM CEREAL
CO. V. CALIFORNIA FIG NUT CO., 272 U.S. 693, POWERS OF THE COURTS OF
THE DISTRICT OF COLUMBIA.  MOREOVER, THE SUGGESTION THAT THE
CONSTITUTIONAL CONVENTION RECOGNIZED A CONSTRUCTIVE LIMITATION OF
FEDERAL JURISDICTION TO "CASES OF A JUDICIARY NATURE," II FARRAND,
RECORDS OF THE FEDERAL CONVENTION 430-431, MERELY LAYS BARE THE
ULTIMATE FALLACY UNDERLYING REJECTION OF THE BOUNDARIES OF ARTICLE
III.  FOR THE CONSTRUCTIVE LIMITATION REFERRED TO IN THE CONVENTION
DEBATES IS A LIMITATION IMPOSED BY ARTICLE III, AND THE OPINION OF MR.
JUSTICE JACKSON BY HYPOTHESIS DENIES THAT ARTICLE III EXPRESSES THE
FULL MEASURE OF POWER WHICH CAN BE DELEGATED TO FEDERAL DISTRICT
COURTS.  IF DISTRICT COURTS ARE - AS I AGREE THEY ARE - CONFINED TO
"CASES OF A JUDICIARY NATURE," THEN TOO THEY ARE CONFINED TO CASES
"BETWEEN CITIZENS OF DIFFERENT STATES," EXCEPT INSOFAR AS OTHER ARTICLE
III PROVISIONS EXPAND THE POTENTIAL GRANT OF JURISDICTION.  FOR - TO
BORROW THE WORDS OF THE O'DONOGHUE DISSENT - THE LIMITATIONS OF ARTICLE
III, "IF CONSIDERED TO BE APPLICABLE, (WOULD NOT) BE SUSCEPTIBLE OF
DIVISION SO THAT SOME MIGHT BE DEEMED OBLIGATORY AND OTHERS MIGHT BE
IGNORED."  289 U.S. AT 552. 

IN VIEW OF THE RATIONALE ADOPTED BY MR. JUSTICE JACKSON'S OPINION, I
DO NOT UNDERSTAND THE NECESSITY FOR ITS EXAMINATION OF THE LIMITS OF
THE DIVERSITY CLAUSE OF ARTICLE III.  THAT OPINION HAS, HOWEVER, MADE
CLEAR THE VIEW THAT THE DIVERSITY CLAUSE EXCLUDES CITIZENS OF THE
DISTRICT OF COLUMBIA, ALTHOUGH WHERE THAT VIEW MAY NOW BE APPLIED IT
DOES NOT POINT OUT.  IF I CONCURRED IN THAT CONCEPTION OF THE DIVERSITY
CLAUSE I WOULD VOTE TO AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 

                                 II. 

HOWEVER, NOTHING BUT NAKED PRECEDENT, THE GREAT AGE OF THE HEPBURN
RULING, AND THE PRESTIGE OF MARSHALL'S NAME, SUPPORTS SUCH A RESULT. 
IT IS DOUBTFUL WHETHER ANYONE COULD BE FOUND WHO NOW WOULD WRITE INTO
THE CONSTITUTION SUCH AN UNJUST AND DISCRIMINATORY EXCLUSION OF
DISTRICT CITIZENS FROM THE FEDERAL COURTS.  ALL OF THE REASONS OF
JUSTICE, CONVENIENCE, AND PRACTICALITY WHICH HAVE BEEN SET FORTH FOR
ALLOWING DISTRICT CITIZENS A FURTIVE ACCESS TO FEDERAL COURTS, POINT TO
THE CONCLUSION THAT THEY SHOULD ENTER FREELY AND FULLY AS OTHER
CITIZENS AND EVEN ALIENS DO. 

PRECEDENT OF COURSE IS NOT LIGHTLY TO BE DISREGARDED, EVEN IN THE
GREATER FLUIDITY OF DECISION WHICH THE PROCESS OF CONSTITUTIONAL
ADJUDICATION CONCEDEDLY AFFORDS.  FN11  AND MARSHALL'S SPONSORSHIP IN
SUCH MATTERS ALWAYS IS WEIGHTY.  BUT WHEN LONG EXPERIENCE HAS DISCLOSED
THE FALLACY OF A RULING, TIME HAS SHOWN ITS INJUSTICE, AND NOTHING
REMAINS BUT A TECHNICALITY THE ONLY EFFECT OF WHICH IS TO PERPETUATE
INEQUITY, HARDSHIP AND WRONG, THOSE ARE THE CIRCUMSTANCES WHICH THIS
COURT REPEATEDLY HAS SAID CALL FOR REEXAMINATION OF PRIOR DECISIONS. 
IF THOSE CONDITIONS ARE FULFILLED IN ANY CASE, THEY ARE IN THIS ONE. 

THE HEPBURN DECISION WAS MADE BEFORE TIME, THROUGH LATER DECISIONS
HERE, HAD DESTROYED ITS BASIC PREMISE AND AT THE BEGINNING OF
MARSHALL'S JUDICIAL CAREER, WHEN HE HAD HARDLY STARTED UPON HIS GREAT
WORK OF EXPOUNDING THE CONSTITUTION.  THE VERY BREVITY OF THE OPINION
AND ITS GROUNDINGS, ESPECIALLY IN THEIR AMBIGUITY, SHOW THAT THE MASTER
HAND WHICH LATER MADE HIS WORK IMMORTAL FALTERED.  FN12 

THE SOLE REASON MARSHALL ASSIGNED FOR THE DECISION WAS "A CONVICTION
THAT THE MEMBERS OF THE AMERICAN CONFEDERACY ONLY ARE THE STATES
CONTEMPLATED IN THE CONSTITUTION," A CONVICTION RESULTING AS HE SAID
FROM AN EXAMINATION OF THE USE OF THAT WORD IN THE CHARTER TO DETERMINE
"WHETHER COLUMBIA IS A STATE IN THE SENSE OF THAT INSTRUMENT."  2
CRANCH AT 452.  "WHEN THE SAME TERM WHICH HAS BEEN USED PLAINLY IN THIS
LIMITED SENSE (AS DESIGNATING A MEMBER OF THE UNION) IN THE ARTICLES
RESPECTING THE LEGISLATIVE AND EXECUTIVE DEPARTMENTS, IS ALSO EMPLOYED
IN THAT WHICH RESPECTS THE JUDICIAL DEPARTMENT, IT MUST BE UNDERSTOOD
AS RETAINING THE SENSE ORIGINALLY GIVEN TO IT."  IBID. 

THIS NARROW AND LITERAL READING WAS GROUNDED EXCLUSIVELY ON THREE
CONSTITUTIONAL PROVISIONS: THE REQUIREMENTS THAT MEMBERS OF THE HOUSE
OF REPRESENTATIVES BE CHOSEN BY THE PEOPLE OF THE SEVERAL STATES; THAT
THE SENATE SHALL BE COMPOSED OF TWO SENATORS FROM EACH STATE; AND THAT
EACH STATE "SHALL APPOINT, FOR THE ELECTION OF THE EXECUTIVE," THE
SPECIFIED NUMBER OF ELECTORS; ALL, BE IT NOTED, PROVISIONS RELATING TO
THE ORGANIZATION AND STRUCTURE OF THE POLITICAL DEPARTMENTS OF THE
GOVERNMENT, NOT TO THE CIVIL RIGHTS OF CITIZENS AS SUCH.  PUT TO ONE
SIDE WERE OTHER PROVISIONS ADVANCED IN ARGUMENT AS SHOWING "THAT THE
TERM STATE IS SOMETIMES USED IN ITS MORE ENLARGED SENSE" ON THE GROUND
THAT "THEY DO NOT PROVE WHAT WAS TO BE SHOWN BY THEM."  IBID.  BUT CF.
446-448, 450.    WHETHER OR NOT THIS ANSWER WAS ADEQUATE AT THE TIME,
FN13  OUR CONSTITUTION TODAY WOULD BE VERY DIFFERENT FROM WHAT IT IS IF
SUCH A NARROW AND LITERAL CONSTRUCTION OF EACH OF ITS TERMS HAD BEEN
TRANSMUTED INTO AN INFLEXIBLE RULE OF CONSTITUTIONAL INTERPRETATION. 
IT IS TO BE REMEMBERED, AS BEARING ON THE VERY ISSUE BEFORE US, THAT
THE SIXTH AMENDMENT'S GUARANTEE OF "AN IMPARTIAL JURY OF THE STATE  ...
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED" EXTENDS TO CRIMINAL
PROSECUTIONS IN THE NATION'S CAPITAL.  FN14 SIMILARLY, THE WORD
"CITIZENS" HAS A BROADER MEANING IN ARTICLE III, SEC. 2, WHERE IT NOW
INCLUDES CORPORATIONS N15, THAN IT HAS IN THE PRIVILEGES AND IMMUNITIES
CLAUSE OF ARTICLE IV, SEC. 2,  FN16  OR IN THE LIKE CLAUSE OF THE
FOURTEENTH AMENDMENT.  FN17 INSTANCES MIGHT, BUT NEED NOT, BE
MULTIPLIED. 

IN CONSTRUING THE DIVERSITY CLAUSE WE ARE FACED WITH THE APPARENT
FACT THAT THE FRAMERS GAVE NO DELIBERATE CONSIDERATION ONE WAY OR
ANOTHER TO THE DIVERSITY LITIGATION OF CITIZENS OF THE DISTRICT OF
COLUMBIA.  AND INDEED, SINCE THE DISTRICT WAS NOT IN EXISTENCE WHEN THE
CONSTITUTION WAS DRAFTED, IT SEEMS IN NO WAY SURPRISING THAT THE
FRAMERS, AFTER CONFERRING ON CONGRESS PLENARY POWER OVER THE FUTURE
FEDERAL CAPITAL, MADE NO EXPRESS PROVISION FOR LITIGATING OUTSIDE THE
BOUNDARIES OF A HYPOTHETICAL CITY CONJECTURED CONTROVERSIES BETWEEN
UNBORN CITIZENS AND THEIR UNKNOWN NEIGHBORS.  UNDER THESE CIRCUMSTANCES
I CANNOT ACCEPT THE PROPOSITION THAT ABSENCE OF AFFIRMATIVE INCLUSION
IS, HERE, TANTAMOUNT TO DELIBERATE EXCLUSION. 

IF EXCLUSION OF DISTRICT CITIZENS IS NOT COMPELLED BY THE LANGUAGE OF
THE DIVERSITY CLAUSE, IT LIKEWISE CANNOT BE SPELLED OUT BY INFERENCE
FROM THE HISTORIC PURPOSES OF THAT CLAUSE.  WE HAVE, NEEDLESS TO SAY,
NO CONCERN WITH THE MERITS OF DIVERSITY JURISDICTION; FN18  NOR NEED WE
RESOLVE SCHOLARLY DISPUTE OVER THE SUBSTANTIALITY OF THOSE LOCAL
PREJUDICES WHICH, WHEN THE CONSTITUTION WAS DRAFTED, THE GRANT OF
DIVERSITY JURISDICTION WAS DESIGNED TO NULLIFY.  FN19  OUR ONLY DUTY IS
TO DETERMINE THE SCOPE OF THE JURISDICTIONAL GRANT, AND WE MUST BOW TO
CONGRESSIONAL DETERMINATION OF WHETHER FEDERAL ADJUDICATION OF LOCAL
ISSUES DOES MORE GOOD THAN HARM.  BUT, IN RESOLVING THE IMMEDIATE
ISSUE, WE SHOULD NOT BLINK THE FACT THAT, WHATEVER THE NEED FOR FEDERAL
JURISDICTION OVER SUITS BETWEEN LITIGANT CITIZENS OF THE SEVERAL
STATES, THE SAME NEED EQUALLY COMPELS THE SAFEGUARDS OF FEDERAL TRIAL
FOR SUITS BROUGHT BY CITIZENS OF THE DISTRICT OF COLUMBIA AGAINST
CITIZENS OF THE SEVERAL STATES.  CONVERSELY, IF WE ASSUME THAT TODAY'S
RULING TACITLY VALIDATES SUITS BROUGHT BY STATE CITIZENS AGAINST
CITIZENS OF THE DISTRICT OF COLUMBIA, IT WOULD SEEM THE PLAINTIFF
CITIZEN OF A STATE IS AS DESERVING OF A FEDERAL FORUM WHEN SUING A
DISTRICT DEFENDANT AS WHEN SUING A DEFENDANT IN A NEIGHBOR STATE. 

MARSHALL'S SOLE PREMISE OF DECISION IN THE HEPBURN CASE HAS FAILED,
UNDER THE STRESS OF TIME AND LATER DECISION, AS A TEST OF
CONSTITUTIONAL CONTRUCTION.  KEY WORDS LIKE "STATE," "CITIZEN," AND
"PERSON" DO NOT ALWAYS AND INVARIABLY MEAN THE SAME THING.  FN20  HIS
LITERAL APPLICATION DISREGARDED ANY POSSIBLE DISTINCTION BETWEEN THE
PURELY POLITICAL CLAUSES AND THOSE AFFECTING CIVIL RIGHTS OF CITIZENS,
A DISTINCTION LATER TO RECEIVE RECOGNITION. 

MOREOVER, MARSHALL HIMSELF RECOGNIZED THE INCONGRUITY OF THE
DECISION:  "IT IS TRUE THAT AS CITIZENS OF THE UNITED STATES, AND OF
THAT PARTICULAR DISTRICT WHICH IS SUBJECT TO THE JURISDICTION OF
CONGRESS, IT IS EXTRAORDINARY THAT THE COURTS OF THE UNITED STATES,
WHICH ARE OPEN TO ALIENS, AND TO THE CITIZENS OF EVERY STATE IN THE
UNION, SHOULD BE CLOSED UPON THEM."  BUT, HE ADDED, "THIS IS A SUBJECT
FOR LEGISLATIVE NOT FOR JUDICIAL CONSIDERATION."  2 CRANCH AT 453. 

WITH ALL THIS WE MAY WELL AGREE, WITH ONE RESERVATION.  IN SPITE OF
SUBSEQUENT CONTRARY INTERPRETATION AND MARSHALL'S OWN IDENTIFICATION OF
THE STATUTORY WORD "STATE" WITH THE SAME WORD IN THE CONSTITUTION, WE
CANNOT BE UNRESERVEDLY SURE THAT THE LAST-QUOTED SENTENCE REFERRED TO
THE PROCESS OF CONSTITUTIONAL AMENDMENT RATHER THAN CONGRESSIONAL
RECONSIDERATION.  IF THE FORMER HAD BEEN THE INTENT, IT SEEMS LIKELY IT
WOULD HAVE BEEN STATED IN WORDS NOT SO CHARACTERISTIC OF THE LATTER
PROCESS.  THE COURT WAS CONSTRUING THE STATUTE,  FN21  WHICH MADE NO
EXPLICIT INCLUSION OF CITIZENS OF THE DISTRICT.  WHETHER, IF IT HAD
DONE SO, THE COURT'S RULING WOULD HAVE BEEN THE SAME OR, IF A LATER ACT
HAD SOUGHT TO INCLUDE DISTRICT CITIZENS, IT WOULD HAVE BEEN HELD
UNCONSTITUTIONAL, WE CAN ONLY SPECULATE. 

BUT I DO NOT REST ON THIS AMBIGUITY, MORE ESPECIALLY IN VIEW OF THE
LATER DECISIONS CLEARLY ACCEPTING THE HEPBURN DECISION AS ONE OF
CONSTITUTIONAL IMPORT.  ON THE OTHER HAND, THE LATER AND GENERAL
REPUDIATION OF THE DECISION'S NARROW AND LITERAL RULE FOR CONSTRUING
THE CONSTITUTION, IN WHICH MARSHALL'S OWN PART WAS NOT SMALL, HAS CUT
FROM BENEATH THE HEPBURN CASE ITS ONLY GROUNDING AND WITH IT, IN MY
JUDGMENT, THE ANOMALY IN RESULT WHICH THE RULING ALWAYS HAS BEEN.  IT
IS PERHAPS UNNECESSARY TO GO SO FAR IN CRITICIZING THE DECISION AS WAS
DONE BY A JUDGE WHO LONG AFTERWARDS BOWED TO IT.  FN22  BUT THE TIME
HAS COME WHEN THE HOPE HE EXPRESSED FOR REMOVING THIS HIGHLY UNJUST
DISCRIMINATION FROM A GROUP OF OUR CITIZENS LARGER THAN THE POPULATION
OF SEVERAL STATES OF THE UNION SHOULD BE REALIZED. 

III. 

PRAGMATICALLY STATED, PERHAPS, THE PROBLEM IS NOT OF EARTH-SHAKING
PROPORTIONS.  FOR, BY PRESENT HYPOTHESIS, FEDERAL COURT DISPOSITION OF
DIVERSITY SUITS MUST BE IN ACCORD WITH LOCAL LAW IN ALL MATTERS OF
SUBSTANCE.  BUT SYMBOLICALLY THE MATTER IS OF VERY CONSIDERABLE
IMPORTANCE.  REASONABLE MEN MAY DIFFER PERHAPS OVER WHETHER OR, MORE
APPROPRIATELY, TO WHAT EXTENT CITIZENS OF THE DISTRICT SHOULD HAVE
POLITICAL STATUS AND EQUALITY WITH THEIR FELLOW CITIZENS.  BUT WITH
REFERENCE TO THEIR CIVIL RIGHTS, ESPECIALLY IN SUCH A MATTER AS EQUAL
ACCESS TO THE FEDERAL COURTS, NONE NOW CAN BE FOUND TO DEFEND
DISCRIMINATION AGAINST THEM SAVE STRICTLY ON THE GROUND OF PRECEDENT. 

I CANNOT BELIEVE THAT THE FRAMERS INTENDED TO IMPOSE SO PURPOSELESS
AND INDEFENSIBLE A DISCRIMINATION, ALTHOUGH THEY MAY HAVE BEEN GUILTY
OF UNDERSTANDABLE OVERSIGHT IN NOT PROVIDING EXPLICITLY AGAINST IT.
DESPITE ITS GREAT AGE AND SUBSEQUENT ACCEPTANCE, I THINK THE HEPBURN
DECISION WAS ILL-CONSIDERED AND WRONGLY DECIDED.  NOTHING HANGS ON IT
NOW EXCEPT THE CONTINUANCE OR REMOVAL OF A GROSS AND WHOLLY ANOMALOUS
INEQUALITY APPLIED AGAINST A SUBSTANTIAL GROUP OF AMERICAN CITIZENS,
NOT IN RELATION TO THEIR SUBSTANTIVE RIGHTS, BUT IN RESPECT TO THE
FORUMS AVAILABLE FOR THEIR DETERMINATION.  THIS COURT HAS NOT HESITATED
TO OVERRIDE EVEN LONG-STANDING DECISIONS WHEN MUCH MORE BY WAY OF
SUBSTANTIAL CHANGE WAS INVOLVED AND THE ACTION TAKEN WAS MUCH LESS
CLEARLY JUSTIFIED THAN IN THIS CASE, A MOST PERTINENT INSTANCE BEING
ERIE R. CO. V. TOMPKINS, SUPRA. 

THAT COURSE SHOULD BE FOLLOWED HERE.  IT SHOULD BE FOLLOWED DIRECTLY,
NOT DEVIOUSLY.  ALTHOUGH I AGREE WITH THE COURT'S JUDGMENT, I THINK IT
OVERRULES THE HEPBURN DECISION IN ALL PRACTICAL EFFECT.  WITH THAT I AM
IN ACCORD.  BUT I AM NOT IN ACCORD WITH THE PROPOSED EXTENSION OF
"LEGISLATIVE" JURISDICTION UNDER ARTICLE I FOR THE FIRST TIME TO THE
FEDERAL DISTRICT COURTS OUTSIDE THE DISTRICT OF COLUMBIA ORGANIZED
PURSUANT TO ARTICLE III, AND THE CONSEQUENT IMPAIRMENT OF THE LATTER
ARTICLE'S LIMITATIONS UPON JUDICIAL POWER; AND I WOULD DISSENT FROM
SUCH A HOLDING EVEN MORE STRONGLY THAN I WOULD FROM A DECISION TODAY
REAFFIRMING THE HEPBURN RULING.  THAT EXTENSION, IN MY OPINION, WOULD
BE THE MOST IMPORTANT PART OF TODAY'S DECISION, WERE IT ACCEPTED BY A
MAJORITY OF THE COURT.  IT IS A DANGEROUS DOCTRINE WHICH WOULD RETURN
TO PLAGUE BOTH THE DISTRICT COURTS AND OURSELVES IN THE FUTURE, TO WHAT
EXTENT IT IS IMPOSSIBLE TO SAY.  THE O'DONOGHUE AND WILLIAMS DECISIONS
WOULD THEN TAKE ON AN IMPORTANCE THEY HAVE NEVER BEFORE HAD AND WERE
NEVER CONSIDERED LIKELY TO ATTAIN. 

FN1  SEE NOTES 3 AND 4 AND TEXT INFRA. 

FN2  SEE TEXT INFRA AND AUTHORITIES CITED AT NOTES 7-9. 

FN3  BARNEY V. BALTIMORE, 6 WALL.  280; HOOE V. JAMIESON, 166 U.S.
395; HOOE V. WERNER, 166 U.S. 399. 

FN4  HOOE V. JAMIESON, 166 U.S. 395, 397; CF. DOWNES V. BIDWELL, 182
U.S. 244, 270. 

FN5  "OF ALL THE COURTS WHICH THE UNITED STATES MAY, UNDER THEIR
GENERAL POWERS, CONSTITUTE, ONE ONLY, THE SUPREME COURT, POSSESSES
JURISDICTION DERIVED IMMEDIATELY FROM THE CONSTITUTION, AND OF WHICH
THE LEGISLATIVE POWER CANNOT DEPRIVE IT."  UNITED STATES V. HUDSON, 7
CRANCH 32, 33.  AND SEE JUSTICE CHASE'S REMARKS IN TURNER V. BANK OF
NORTH AMERICA, 4 DALL.  8, 10, N. 1.  BUT CF. MARTIN V. HUNTER'S
LESSEE, 1 WHEAT.  304, 328-331.  FOR RECENT REAFFIRMATION OF THE
PREVAILING VIEW SEE KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, 233
234.  AND SEE THE COMPREHENSIVE SURVEY OF CONGRESSIONAL POWER OVER THE
JURISDICTION OF FEDERAL COURTS PREPARED FOR THE JUDICIARY COMMITTEE OF
THE HOUSE OF REPRESENTATIVES BY MR. JUSTICE FRANKFURTER BEFORE HIS
ACCESSION TO THIS BENCH.  H.R. REP. NO. 669, 72D CONG., 1ST SESS. 12
14. 

FN6  304 U.S. 64.  IF IT WERE ASSUMED THAT THE CONSTITUTION REQUIRES
THE APPLICATION OF LOCAL LAW IN TRADITIONAL DIVERSITY SUITS (CF. ID. AT
77-80; BLACK & WHITE TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., 276
U.S. 518, DISSENTING OPINION AT 533; BUT CF. COHEN V. INDUSTRIAL LOAN
CORP., POST AT 541, DISSENTING OPINION AT 557), IT MAY BE WONDERED
WHETHER THAT REQUIREMENT WOULD ALSO GOVERN THE RATIONALE OF
JURISDICTION TODAY ADVANCED:  UNDER THIS RATIONALE, CONGRESS MIGHT WELL
FIND IN ARTICLE I POWER TO AUTHORIZE ARTICULATION OF A BODY OF FEDERAL
SUBSTANTIVE LAW FOR THE DECISION OF DIVERSITY CASES INVOLVING CITIZENS
OF THE DISTRICT OF COLUMBIA. 

FN7  FEDERAL RADIO COMMISSION V. GENERAL ELECTRIC CO., 281 U.S. 464;
POSTUM CEREAL CO. V. CALIFORNIA FIG NUT CO., 272 U.S. 693; KELLER V.
POTOMAC ELECTRIC CO., 261 U.S. 428.  CF. EX PARTE BAKELITE CORP., 279
U.S. 438, 450; FEDERAL RADIO COMMISSION V. NELSON BROS., 289 U.S. 266,
274-276; UNITED STATES V. JONES, 336 U.S. 641, 652, N. 12. 

FN8  O'DONOGHUE V. UNITED STATES, 289 U.S. 516, 551.  CF. PITTS V.
PEAK, 60 APP. D.C. 195, 197. 

FN9  SEE COMMENTS, 43 YALE L.J. 316, 319(1933). 

FN10  NOTE BY CHIEF JUSTICE TANEY INSERTED BY ORDER OF THE COURT
AFTER THE OPINION IN UNITED STATES V. FERREIRA, 13 HOW.  40, 53,
SUMMARIZING THE COURT'S CONCLUSIONS IN HAYBURN'S CASE, 2 DALL.  409,
AND UNITED STATES V. YALE TODD, DECIDED WITHOUT OPINION BY THIS COURT
ON FEBRUARY 17, 1794, AND APPARENTLY UNREPORTED. 

FN11  CF. SCREWS V. UNITED STATES, 325 U.S. 91, 112-113.  SEE THE
TRENCHANT DISCUSSION BY MR. JUSTICE BRANDEIS OF THE LESSER IMPACT OF
STARE DECISIS IN THE REALM OF CONSTITUTIONAL CONSTRUCTION, BURNET V.
CORONADO OIL & GAS CO., 285 U.S. 393, 405-410(DISSENTING OPINION), AND
THE VIEWS OF MR. JUSTICE FRANKFURTER DISSENTING IN COMMISSIONER V.
ESTATE OF CHURCH, 335 U.S. 632, 676-677.  INSTANCES IN WHICH THIS COURT
HAS OVERRULED PRIOR CONSTITUTIONAL DETERMINATIONS ARE CATALOGUED IN
BURNET V. CORONADO OIL & GAS CO., SUPRA AT 407, N. 2, 409, N. 4, AND IN
HELVERING V. GRIFFITHS, 318 U.S. 371, 401, N. 52; COMPARE MR. JUSTICE
BRANDEIS' COMPILATIONS IN BURNET V. CORONADO OIL & GAS CO., SUPRA AT
406, N. 1, AND IN HIS DISSENTING OPINION IN WASHINGTON V. DAWSON & CO.,
264 U.S. 219, 238, N. 21.  CHIEF JUSTICE STONE, SPEAKING FOR THE COURT
ON THE DEATH OF MR. JUSTICE BRANDEIS, TOOK OCCASION TO NOTE THE PRIME
ROLE PLAYED BY THE LATTER IN LIBERATING THE COURT FROM MECHANICAL
ADHERENCE TO PRECEDENT WHERE CONSTITUTIONAL ISSUES ARE AT STAKE:  "HE
NEVER LOST SIGHT OF THE FACT THAT THE CONSTITUTION IS PRIMARILY A GREAT
CHARTER OF GOVERNMENT, AND OFTEN REPEATED MARSHALL'S WORDS:  'IT IS A
CONSTITUTION WE ARE EXPOUNDING' 'INTENDED TO ENDURE FOR AGES TO COME,
AND, CONSEQUENTLY, TO BE ADAPTED TO THE VARIOUS CRISES OF HUMAN
AFFAIRS.'  HENCE, ITS PROVISIONS WERE TO BE READ NOT WITH THE NARROW
LITERALISM OF A MUNICIPAL CODE OR A PENAL STATUTE, BUT SO THAT IT HIGH
PURPOSES SHOULD ILLUMINE EVERY SENTENCE AND PHRASE OF THE DOCUMENT AND
BE GIVEN EFFECT AS A PART OF A HARMONIOUS FRAMEWORK OF GOVERNMENT. 
NOTWITHSTANDING THE DOCTRINE OF STARE DECISIS, JUDICIAL INTERPRETATIONS
OF THE CONSTITUTION, SINCE THEY WERE BEYOND LEGISLATIVE CORRECTION,
COULD NOT BE TAKEN AS THE FINAL WORD.  THEY WERE OPEN TO
RECONSIDERATION, IN THE LIGHT OF NEW EXPERIENCE AND GREATER KNOWLEDGE
AND WISDOM."  317 U.S. XLII, XLVII. 

FN12  THE HEPBURN CASE WAS NOT THE ONLY ONE IN THOSE EARLIER YEARS
WHERE THE MASTER TOUCH WAS LACKING.  CF. BANK OF THE UNITED STATES V.
DEVEAUX, 5 CRANCH 61; HOPE INSURANCE CO. V. BOARDMAN, 5 CRANCH 57;
MARYLAND INSURANCE CO. V. WOODS, 6 CRANCH 29, 7 CRANCH 402; MCGOVNEY, A
SUPREME COURT FICTION, 56 HARV. L. REV. 853, 863-885(1943).  SEE
PARTICULARLY THE DISCUSSION AT 876-883.  BY POSITING THE CAPACITY OF A
CORPORATION TO SUE OR BE SUED UNDER THE DIVERSITY CLAUSE ON THE
CITIZENSHIP OF ITS SHAREHOLDERS, THE DEVEAUX DECISION OPENED THE WAY
FOR CORPORATIONS ULTIMATELY TO BE BROUGHT WITHIN THE DIVERSITY
JURISDICTION, BUT ONLY BY THE LONG AND TORTUOUS EVOLUTION OF THE LAW
THROUGH THE STAGES FIRST OF REBUTTABLE AND FINALLY OF CONCLUSIVE
PRESUMPTION (NOW MOST OFTEN CONTRARY TO THE FACT) THAT ALL THE
SHAREHOLDERS ARE CITIZENS OF THE STATE OF INCORPORATION.  SEE
LOUISVILLE, C. & C.R. CO. V. LETSON, 2 HOW.  497.    FN13  COUNSEL FOR
THE PLAINTIFFS HAD MADE, AMONG OTHERS, TWO DIFFERENT, THOUGH CLOSELY
RELATED, ARGUMENTS.  ONE WAS THAT "STATE" AS USED IN THE DIVERSITY
CLAUSE SHOULD BE GIVEN WHAT MARSHALL CHARACTERIZED AS "THE
SIGNIFICATION ATTACHED TO IT BY WRITERS ON THE LAW OF NATIONS," A
POLITICAL ENTITY IN A BROAD AND GENERAL SENSE.  TO THIS ARGUMENT HIS
ANSWER WAS OBVIOUSLY APPROPRIATE.  BUT IN VIEW OF OTHER CONSTITUTIONAL
PROVISIONS RELIED UPON IN THE ARGUMENT, 2 CRANCH 446-448, 450, IT SEEMS
AT LEAST QUESTIONABLE THAT THE ANSWER MET THE OTHER CONTENTION, NAMELY,
THAT "THOSE TERRITORIES WHICH ARE UNDER THE EXCLUSIVE GOVERNMENT OF THE
UNITED STATES ARE TO BE CONSIDERED IN SOME RESPECTS AS INCLUDED IN THE
TERM 'STATES' AS USED IN THE CONSTITUTION."  ID. AT 446. 

FN14  THE COURT'S INITIAL DETERMINATION THAT DISTRICT RESIDENTS WERE
ENTITLED TO A JURY TRIAL IN CRIMINAL CASES, CALLAN V. WILSON, 127 U.S.
540, RESTED IN LARGE MEASURE ON THE MORE INCLUSIVE LANGUAGE OF ARTICLE
III, SEC. 2:  "THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT,
SHALL BE BY JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE
SAID CRIMES SHALL HAVE BEEN COMMITTED; BUT WHEN NOT COMMITTED WITHIN
ANY STATE, THE TRIAL SHALL BE AT SUCH PLACE OR PLACES AS THE CONGRESS
MAY BY LAW HAVE DIRECTED."  THE COURT IN THE CALLAN CASE REJECTED THE
GOVERNMENT'S ARGUMENT THAT ARTICLE III, SEC. 2, PERMITS CONGRESS TO
DISPENSE WITH A JURY WHEN THE CRIME TAKES PLACE IN THE DISTRICT RATHER
THAN IN A STATE.  BUT ARTICLE III DOES NOT SEEM TO HAVE BEEN THE SOLE
BASIS OF DECISION, FOR THE COURT SAID, 127 U.S. AT 550:  "IN REYNOLDS
V. UNITED STATES, 98 U.S. 145, 154, IT WAS TAKEN FOR GRANTED THAT THE
SIXTH AMENDMENT OF THE CONSTITUTION SECURED TO THE PEOPLE OF THE
TERRITORIES THE RIGHT OF TRIAL BY JURY IN CRIMINAL PROSECUTIONS; ...
WE CANNOT THINK THAT THE PEOPLE OF THIS DISTRICT HAVE, IN THAT REGARD,
LESS RIGHTS THAN THOSE ACCORDED TO THE PEOPLE OF THE TERRITORIES OF THE
UNITED STATES."  SEE DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617,
624; CAPITAL TRACTION CO. V. HOF, 174 U.S. 1, 5; CF. THOMPSON V. UTAH,
170 U.S. 343, 348-349. 

BUT, THOUGH IT BE TRUE THAT "THE SIXTH AMENDMENT WAS NOT NEEDED TO
REQUIRE TRIAL BY JURY IN CASES OF CRIMES," UNITED STATES V. WOOD, 299
U.S. 123, 142, NEVERTHELESS THE RECOGNIZED RIGHT OF DISTRICT RESIDENTS
TO AN "IMPARTIAL JURY" IS CONFERRED BY THE FORCE OF THE SIXTH
AMENDMENT.  SEE FRAZIER V. UNITED STATES, 335 U.S. 497, 498, 514.  NOR
IS THIS DISTINCTION A MERE FORM OF WORDS: IN UNITED STATES V. WOOD,
SUPRA, AT 142-143, CHIEF JUSTICE HUGHES, IN WEIGHING THE IMPARTIALITY
OF A DISTRICT OF COLUMBIA JURY, NOTED THE ARTICLE III GUARANTEE OF A
JURY TRIAL AND THEN OBSERVED: "THE SIXTH AMENDMENT PROVIDED FURTHER
ASSURANCES.  IT ADDED THAT IN ALL CRIMINAL PROSECUTIONS THE ACCUSED
SHALL ENJOY THE RIGHT 'TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL
JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN
COMMITTED, WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY
LAW, AND TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION; TO
BE CONFRONTED WITH THE WITNESSES AGAINST HIM; TO HAVE COMPULSORY
PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE THE
ASSISTANCE OF COUNSEL FOR HIS DEFENCE.'" 

THUS IT HAS BEEN UNIFORMLY ASSUMED THAT IN CRIMINAL PROSECUTIONS A
RESIDENT OF THE DISTRICT OF COLUMBIA IS POSSESSED OF SIXTH AMENDMENT
RIGHTS "TO A SPEEDY  ...  TRIAL," UNITED STATES V. MCWILLIAMS, 69
F.SUPP.  812, AFFIRMED 163 F.2D 695; "TO BE INFORMED OF THE NATURE AND
CAUSE OF THE ACCUSATION," CF. JOHNSON V. UNITED STATES, 225 U.S. 405,
409, 411; "TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM," CURTIS V.
RIVES, 123 F.2D 936, 937; JORDON V. BONDY, 114 F.2D 599, 602, "TO HAVE
COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR," IBID.; "AND
TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE," NOBLE V. EICHER,
143 F.2D 1001; SEE WILLIAMS V. HUFF, 142 F.2D 91, 146 F.2D 867. 

FN15  SEE NOTE 12 SUPRA.  COMPARE LOUISVILLE, C. & C.R. CO. V.
LETSON, 2 HOW.  497, WITH BANK OF THE UNITED STATES V. DEVEAUX, 5
CRANCH 61. 

FN16  PAUL V. VIRGINIA, 8 WALL.  168, 177.  IT IS TO BE NOTED,
HOWEVER, THAT HAMILTON'S 80TH FEDERALIST EXPRESSLY JUSTIFIED THE GRANT
OF DIVERSITY JURISDICTION AS EFFECTIVELY IMPLEMENTING THE GUARANTIES OF
THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV. 

FN17  HAGUE V. C.I.O., 307 U.S. 496, 514, CF. ID. AT 527; GROSJEAN V.
AMERICAN PRESS CO., 297 U.S. 233, 244; ORIENT INSURANCE COMPANY V.
DAGGS, 172 U.S. 557, 561. 

FN18  FOR CONTRASTING VIEWS PRIOR TO ERIE R. CO. V. TOMPKINS, 304
U.S. 64, COMPARE YNTEMA, THE JURISDICTION OF THE FEDERAL COURTS IN
CONTROVERSIES BETWEEN CITIZENS OF DIFFERENT STATES, 19 A.B.A.J.
71(1933), AND YNTEMA AND JAFFIN, PRELIMINARY ANALYSIS OF CONCURRENT
JURISDICTION, 79 U. PA. L. REV. 869(1931), WITH FRANKFURTER, A NOTE ON
DIVERSITY JURISDICTION - IN REPLY TO PROFESSOR YNTEMA, 79 U. PA. L.
REV. 1097(1931), AND FRANKFURTER, DISTRIBUTION OF JUDICIAL POWER
BETWEEN UNITED STATES AND STATE COURTS, 13 CORN.  L.Q. 499, 520
530(1928).  FOR POST-ERIE ANALYSES SEE SHULMAN, THE DEMISE OF SWIFT V.
TYSON, 47 YALE L.J. 1336(1938); CLARK, STATE LAW IN THE FEDERAL COURTS:
THE BROODING OMNIPRESENCE OF ERIE V. TOMPKINS, 55 YALE L.J.
267(1946). 

FN19  SEE NOTE 18, AND SEE ALSO FRIENDLY, THE HISTORIC BASIS OF
DIVERSITY JURISDICTION, 41 HARV. L. REV. 483(1928); WARREN, NEW LIGHT
ON THE HISTORY OF THE FEDERAL JUDICIARY ACT OF 1789, 37 HARV. L. REV.
49, 81-90(1923); FRANK, HISTORICAL BASES OF THE FEDERAL JUDICIAL
SYSTEM, 13 LAW & CONTEM.  PROB.  3, 22-28(1948). 

FN20  CF. NOTES 14-17 SUPRA AND TEXT. 

FN21  THE ARGUMENTS FOR THE DEFENDANT WERE TWO, ONE STATUTORY, THE
OTHER CONSTITUTIONAL.  THEY WERE STATED AS FOLLOWS:  "EVEN IF THE
CONSTITUTION OF THE UNITED STATES AUTHORISES A MORE ENLARGED
JURISDICTION THAN THE JUDICIARY ACT OF 1789 HAS GIVEN, YET THE COURT
CAN TAKE NO JURISDICTION WHICH IS NOT GIVEN BY THE ACT.  ... 

"THIS IS NOT A CASE BETWEEN CITIZENS OF DIFFERENT STATES, WITHIN THE
MEANING OF THE CONSTITUTION."  2 CRANCH AT 449-450. 

FN22  AFTER NOTING THAT THE HEPBURN DECISION HAD BEEN EXTENDED BY NEW
ORLEANS V. WINTER, 1 WHEAT.  91, TO TERRITORIES AND THEIR CITIZENS, THE
OPINION IN WATSON V. BROOKS, 13 F. 540, STATED AT 543-544:  "BUT IT IS
VERY DOUBTFUL IF THIS RULING WOULD NOW BE MADE IF THE QUESTION WAS ONE
OF FIRST IMPRESSION; AND IT IS TO BE HOPED IT MAY YET BE REVIEWED AND
OVERTHROWN. 

"BY IT, AND UPON A NARROW AND TECHNICAL CONSTRUCTION OF THE WORD
'STATE,' UNSUPPORTED BY ANY ARGUMENT WORTHY OF THE ABLE AND
DISTINGUISHED JUDGE WHO ANNOUNCED THE OPINION OF THE COURT, THE LARGE
AND GROWING POPULATION OF AMERICAN CITIZENS RESIDENT IN THE DISTRICT OF
COLUMBIA AND THE EIGHT TERRITORIES OF THE UNITED STATES ARE DEPRIVED OF
THE PRIVILEGE ACCORDED TO ALL OTHER AMERICAN CITIZENS, AS WELL AS
ALIENS, OF GOING INTO THE NATIONAL COURTS WHEN OBLIGED TO ASSERT OR
DEFEND THEIR LEGAL RIGHTS AWAY FROM HOME.  INDEED, IN THE LANGUAGE OF
THE COURT IN HEPBURN V. ELLZEY, SUPRA, THEY MAY WELL SAY:  'IT IS
EXTRAORDINARY THAT THE COURTS OF THE UNITED STATES, WHICH ARE OPEN TO
ALIENS, AND TO THE CITIZENS OF EVERY STATE IN THE UNION, SHOULD BE
CLOSED UPON THEM.'  BUT SO LONG AS THIS RULING REMAINS IN FORCE, THE
JUDGMENT OF THIS COURT MUST BE GOVERNED BY IT." 

MR. CHIEF JUSTICE VINSON, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

WHILE I AGREE WITH THE VIEWS EXPRESSED BY MR. JUSTICE FRANKFURTER AND
MR. JUSTICE RUTLEDGE WHICH RELATE TO THE POWER OF CONGRESS UNDER ART. I
OF THE CONSTITUTION TO VEST FEDERAL DISTRICT COURTS WITH JURISDICTION
OVER SUITS BETWEEN CITIZENS OF STATES AND THE DISTRICT OF COLUMBIA, AND
WITH THE VIEWS OF MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON AS TO
THE PROPER INTERPRETATION OF THE WORD "STATES" IN THE DIVERSITY CLAUSE
OF ART. III, I AM CONSTRAINED TO STATE MY VIEWS INDIVIDUALLY BECAUSE OF
THE IMPORTANCE OF THESE QUESTIONS TO THE ADMINISTRATION OF THE FEDERAL
COURT SYSTEM. 

                      I. 

THE QUESTION WHETHER CONGRESS HAS THE POWER TO EXTEND THE DIVERSITY
JURISDICTION OF THE FEDERAL DISTRICT COURTS TO CITIZENS OF THE DISTRICT
OF COLUMBIA BY VIRTUE OF ITS AUTHORITY OVER THE DISTRICT UNDER ART. I
OF THE CONSTITUTION DEPENDS, IN TURN, UPON WHETHER THE ENUMERATION IN
ART. III OF THE CASES TO WHICH THE JUDICIAL POWER OF THE UNITED STATES
SHALL EXTEND DEFINES THE OUTER LIMITS OF THAT POWER OR IS MERELY A
LISTING OF THE TYPES OF JURISDICTION WITH WHICH CONGRESS MAY INVEST
FEDERAL COURTS WITHOUT INVOKING ANY OF THE SPECIFIC POWERS GRANTED THAT
BODY BY OTHER ARTICLES OF THE CONSTITUTION.  IT HAS LONG BEEN SETTLED
THAT INFERIOR FEDERAL COURTS RECEIVE NO POWERS DIRECTLY FROM THE
CONSTITUTION BUT ONLY SUCH AUTHORITY AS IS VESTED IN THEM BY THE
CONGRESS.  TURNER V. BANK OF NORTH-AMERICA, 4 DALL.  8(1799); MCINTIRE
V. WOOD, 7 CRANCH 504(1813); KENDALL V. UNITED STATES, 12 PET.
524(1838); CARY V. CURTIS, 3 HOW.  236(1845).  FN1  SINCE, THEREFORE,
THERE IS NO MINIMUM OF POWER PRESCRIBED FOR THE INFERIOR FEDERAL
COURTS, AND CONGRESS NEED NOT HAVE ESTABLISHED ANY SUCH COURTS,
LOCKERTY V. PHILLIPS, 319 U.S. 182, 187(1943), THE QUESTION IS WHETHER
THE ENUMERATION OF CASES IN ART. III, SEC. 2 PRESCRIBES A MAXIMUM OF
POWER OR PERFORMS ONLY THE VERY LIMITED OFFICE MENTIONED ABOVE.  FN2 

THE THEORY THAT SEC. 2 OF ART. III IS MERELY A SUPPLEMENT TO THE
POWERS SPECIFICALLY GRANTED CONGRESS BY THE CONSTITUTION IS NOT,
HOWEVER, ACCEPTED AT FACE VALUE EVEN BY THOSE WHO URGE IT. FOR THEY
STILL WOULD REQUIRE THAT A CASE OR CONTROVERSY BE PRESENTED.  WE ARE
TOLD THAT 

"OF COURSE THERE ARE LIMITS TO THE NATURE OF DUTIES WHICH CONGRESS
MAY IMPOSE ON THE CONSTITUTIONAL COURTS VESTED WITH THE FEDERAL
JUDICIAL POWER ...  (BUT) THIS STATUTE  ...  DOES NOT AUTHORIZE OR
REQUIRE EITHER THE DISTRICT COURTS OR THIS COURT TO PARTICIPATE IN ANY
LEGISLATIVE, ADMINISTRATIVE, POLITICAL OR OTHER NONJUDICIAL FUNCTION OR
TO RENDER ANY ADVISORY OPINION."  ANTE, PP. 590-591. 

BUT AS MY BROTHERS FRANKFURTER AND RUTLEDGE HAVE POINTED OUT, IF ART.
III CONTAINS MERELY A GRANT OF POWER TO CONGRESS, THERE IS NO MORE
REASON TO FIND ANY LIMITATION IN THE FACT THAT THE JUDICIAL POWER
EXTENDS ONLY TO CASES AND CONTROVERSIES THAN IN THE SPECIFIC
ENUMERATION OF THE KINDS OF CASES OR CONTROVERSIES TO WHICH IT SHALL
EXTEND.  THE FUNDAMENTAL ERROR IN THIS POSITION, AS I SEE IT, IS THE
FAILURE TO DISTINGUISH BETWEEN TWO ENTIRELY DIFFERENT PRINCIPLES
EMBODIED IN ART. III, AS ELSEWHERE IN THE CONSTITUTION, BOTH OF WHICH
WERE REPEATEDLY ADVERTED TO IN THE CONSTITUTIONAL CONVENTION AND HAVE
SINCE BEEN FOLLOWED BY THIS COURT WITHOUT SUBSTANTIAL DEVIATION. 

THE FIRST OF THESE PRINCIPLES IS THAT THE THREE BRANCHES OF
GOVERNMENT ESTABLISHED BY THE CONSTITUTION ARE OF COORDINATE RANK, AND
THAT NONE MAY ENCROACH UPON THE POWERS AND FUNCTIONS ENTRUSTED TO THE
OTHERS BY THAT INSTRUMENT.  THIS PRINCIPLE FOUND EXPRESSION IN THE
REQUIREMENT OF ART. III THAT THE JUDICIAL POWER SHALL EXTEND ONLY TO
CASES AND CONTROVERSIES.  OF EQUAL IMPORTANCE, HOWEVER, WAS THE SECOND
PRINCIPLE, THAT THE CONSTITUTION CONTAINS A GRANT OF POWER BY THE
STATES TO THE FEDERAL GOVERNMENT, AND THAT ALL POWERS NOT SPECIFICALLY
GRANTED WERE RESERVED TO THE STATES OR TO THE PEOPLE.  FN3  THE POWERS
GRANTED THE FEDERAL JUDICIARY WERE SPELLED OUT WITH CARE AND PRECISION
IN ART. III BY A DELINEATION OF THE KINDS OF CASES TO WHICH THE
JUDICIAL POWER COULD BE EXTENDED. 

THE FIRST PRINCIPLE IS NOT NOW UNDER ATTACK, BUT PROPER PERSPECTIVE
IN VIEWING THE SECOND REQUIRES SOME EXAMINATION OF ITS ORIGIN AND
HISTORY.  THE FRAMERS OF THE CONSTITUTION WERE PRESENTED WITH, AND
REJECTED, PROPOSALS WHICH WOULD HAVE VESTED NONJUDICIAL POWERS IN THE
NATIONAL JUDICIARY.  CHARLES PINCKNEY OF SOUTH CAROLINA PROPOSED, FOR
EXAMPLE, THAT "EACH BRANCH OF THE LEGISLATURE, AS WELL AS THE SUPREME
EXECUTIVE SHALL HAVE AUTHORITY TO REQUIRE THE OPINIONS OF THE SUPREME
JUDICIAL COURT UPON IMPORTANT QUESTIONS OF LAW, AND UPON SOLEMN
OCCASIONS."  FN4  EARLY IN THE CONVENTION, HOWEVER, THE PRINCIPLE THAT
THE COURTS TO BE ESTABLISHED SHOULD HAVE JURISDICTION ONLY OVER CASES
BECAME FIXED.  THUS IT WAS THAT WHEN THE PROPOSAL WAS MADE ON THE FLOOR
OF THE CONVENTION THAT THE WORDS, "ARISING UNDER THIS CONSTITUTION" BE
INSERTED BEFORE "THE LAWS OF THE UNITED STATES," IN WHAT IS NOW ART.
III, SEC. 2, MADISON'S OBJECTION THAT IT WAS "GOING TOO FAR TO EXTEND
THE JURISDICTION OF THE COURT GENERALLY TO CASES ARISING UNDER THE
CONSTITUTION, & WHETHER IT OUGHT NOT TO BE LIMITED TO CASES OF A
JUDICIARY NATURE" WAS MET BY THE ANSWER THAT IT WAS, IN HIS OWN WORDS,
"GENERALLY SUPPOSED THAT THE JURISDICTION GIVEN WAS CONSTRUCTIVELY
LIMITED TO CASES OF A JUDICIARY NATURE - ."  FN5 

CLEAR AS THIS PRINCIPLE IS, HOWEVER, IT WAS ATTACKED IN THIS COURT ON
PRECISELY THE SAME GROUNDS NOW ASSERTED TO SUSTAIN THE DIVERSITY
JURISDICTION HERE IN QUESTION.  IN KELLER V. POTOMAC ELECTRIC CO., 261
U.S. 428(1923), WHERE THIS COURT HAD BEFORE IT AN ACT UNDER WHICH THE
COURTS OF THE DISTRICT OF COLUMBIA WERE GIVEN REVISORY POWER OVER RATES
SET BY THE PUBLIC UTILITIES COMMISSION OF THE DISTRICT, THE APPELLEE
SOUGHT TO SUSTAIN THE APPELLATE JURISDICTION GIVEN THIS COURT BY THE
ACT ON THE BASIS THAT "ALTHOUGH ART. III OF THE CONSTITUTION LIMITS THE
JURISDICTION OF THE FEDERAL COURTS, THIS LIMITATION IS SUBJECT TO THE
POWER OF CONGRESS TO ENLARGE THE JURISDICTION, WHERE SUCH ENLARGEMENT
MAY REASONABLY BE REQUIRED TO ENABLE CONGRESS TO EXERCISE THE EXPRESS
POWERS CONFERRED UPON IT BY THE CONSTITUTION."  261 U.S. AT 435. 
THERE, AS HERE, THE POWER RELIED UPON WAS THAT GIVEN CONGRESS TO
EXERCISE EXCLUSIVE JURISDICTION OVER THE DISTRICT OF COLUMBIA, AND TO
MAKE ALL LAWS NECESSARY AND PROPER TO CARRY SUCH POWERS INTO EFFECT. 
BUT THIS COURT CLEARLY AND UNEQUIVOCALLY REJECTED THE CONTENTION THAT
CONGRESS COULD THUS EXTEND THE JURISDICTION OF CONSTITUTIONAL COURTS,
CITING THE NOTE TO HAYBURN'S CASE, 2 DALL.  409, 410(1792); UNITED
STATES V. FERREIRA, 13 HOW.  40, NOTE, P. 52(1851), AND GORDON V.
UNITED STATES, 117 U.S. 697(1864).  THESE AND OTHER DECISIONS OF THIS
COURT CLEARLY CONDITION THE POWER OF A CONSTITUTIONAL COURT TO TAKE
COGNIZANCE OF ANY CAUSE UPON THE EXISTENCE OF A SUIT INSTITUTED
ACCORDING TO THE REGULAR COURSE OF JUDICIAL PROCEDURE, MARBURY V.
MADISON, 1 CRANCH 137(1803), THE POWER TO PRONOUNCE A JUDGMENT AND
CARRY IT INTO EFFECT BETWEEN PERSONS AND PARTIES WHO BRING A CASE
BEFORE IT FOR DECISION, MUSKRAT V. UNITED STATES, 219 U.S. 346(1911);
GORDON V. UNITED STATES, SUPRA, THE ABSENCE OF REVISORY OR APPELLATE
POWER IN ANY OTHER BRANCH OF GOVERNMENT, HAYBURN'S CASE, SUPRA; UNITED
STATES V. FERREIRA, SUPRA, AND THE ABSENCE OF ADMINISTRATIVE OR
LEGISLATIVE ISSUES OR CONTROVERSIES, KELLER V. POTOMAC ELECTRIC CO.,
SUPRA; POSTUM CEREAL CO. V. CALIFORNIA FIG NUT CO., 272 U.S.
693(1927).  WHILE "JUDICIAL POWER," "CASES," AND "CONTROVERSIES" HAVE
SOMETIMES BEEN GIVEN SEPARATE DEFINITIONS,  FN6  THESE CONCEPTS ARE
INEXTRICABLY INTERTWINED.  THE TERM "JUDICIAL POWER" WAS ITSELF
SUBSTITUTED FOR THE PHRASE, "THE JURISDICTION OF THE SUPREME COURT" TO
CONFORM ART. III TO THE USE OF THE TERMS "LEGISLATIVE POWERS" AND
"EXECUTIVE POWER" IN ARTS. I AND II.  FN7  IT THUS DRAWS LIFE FROM THAT
TO WHICH IT EXTENDS:  TO CASES AND CONTROVERSIES.  THAT MUCH, AT ANY
RATE, IS CLEAR.  WHETHER IT DRAWS LIFE FROM ANY CASES OR CONTROVERSIES
OTHER THAN THOSE SPECIFICALLY ENUMERATED IN ART. III MUST NOW BE
CONSIDERED. 

THE SECOND PRINCIPLE, THAT ANY POWERS NOT SPECIFICALLY GRANTED TO THE
NATIONAL JUDICIARY BY ART. III WERE RESERVED TO THE STATES OR THE
PEOPLE, IS HERE CHALLENGED.  THE REASON SUCH AN ATTACK IS POSSIBLE AT
THIS LATE DATE IS, IRONICALLY ENOUGH, BECAUSE OF THE IMPLICIT
ACCEPTANCE OF THAT PRINCIPLE BY THE FRAMERS, BY CONGRESS, AND BY
LITIGANTS EVER SINCE.  UNLIKE THE QUESTION OF THE RELATIONS BETWEEN THE
BRANCHES OF GOVERNMENT, WHICH FIRST AROSE DURING WASHINGTON'S
PRESIDENCY AND SUBSEQUENTLY GAVE RISE, IN THE CASES PREVIOUSLY ADVERTED
TO, TO FREQUENT DEFINITION OF THE NATURE OF CASES AND CONTROVERSIES,
ACCEPTANCE OF THE PRINCIPLE THAT ART. III CONTAINS A LIMITATION ON THE
POWER OF THE FEDERAL JUDICIARY WAS SO COMPLETE THAT THE QUESTION DID
NOT OFTEN ARISE DIRECTLY.  NEVERTHELESS, IT IS POSSIBLE TO DEMONSTRATE
IN A NUMBER OF CONTEXTS THE TRUE INTENT OF THE FRAMERS. 

FIRST, THE EXAMINATION AND REJECTION OF VARIOUS ALTERNATIVE PROPOSALS
CONCERNING THE JURISDICTION OF THE NATIONAL JUDICIARY BY THE CONVENTION
THROWS CONSIDERABLE LIGHT UPON THE COMPROMISE REACHED.  FN8  ON THE ONE
HAND WERE THOSE WHO THOUGHT THAT NO INFERIOR FEDERAL TRIBUNALS SHOULD
BE AUTHORIZED; THAT STATE COURTS SHOULD BE ENTRUSTED WITH THE DECISION
OF ALL FEDERAL QUESTIONS, SUBJECT TO APPEAL TO ONE SUPREME COURT. 
MADISON'S NOTES REVEAL THAT 

"MR. RUTLIDGE HAVG.  OBTAINED A RULE FOR RECONSIDERATION OF THE
CLAUSE FOR ESTABLISHING INFERIOR TRIBUNALS UNDER THE NATIONAL
AUTHORITY, NOW MOVED THAT THAT PART OF THE CLAUSE  ...  SHOULD BE
EXPUNGED:  ARGUING THAT THE STATE TRIBUNALS MIGHT AND OUGHT TO BE LEFT
IN ALL CASES TO DECIDE IN THE FIRST INSTANCE THE RIGHT OF APPEAL TO THE
SUPREME NATIONAL TRIBUNAL BEING SUFFICIENT TO SECURE THE NATIONAL
RIGHTS & UNIFORMITY OF JUDGMTS:  THAT IT WAS MAKING AN UNNECESSARY
ENCROACHMENT ON THE JURISDICTION OF THE STATES, AND CREATING
UNNECESSARY OBSTACLES TO THEIR ADOPTION OF THE NEW SYSTEM."  FN9 

THE MOTION WAS CARRIED AND THE CLAUSE ESTABLISHING INFERIOR FEDERAL
TRIBUNALS EXCISED FROM THE DRAFT CONSTITUTION.  MADISON, HOWEVER,
IMMEDIATELY MOVED "THAT THE NATIONAL LEGISLATURE BE EMPOWERED TO
INSTITUTE INFERIOR TRIBUNALS," URGING THAT SOME PROVISION FOR SUCH
COURTS WAS A NECESSITY IN A FEDERAL SYSTEM.  MADISON'S NOTES THEN
RECORD THE REACTION OF PIERCE BUTLER OF SOUTH CAROLINA TO THIS
PROPOSAL: 

"THE PEOPLE WILL NOT BEAR SUCH INNOVATIONS.  THE STATES WILL REVOLT
AT SUCH ENCROACHMENTS.  SUPPOSING SUCH AN ESTABLISHMENT TO BE USEFUL,
WE MUST NOT VENTURE ON IT.  WE MUST FOLLOW THE EXAMPLE OF SOLON WHO
GAVE THE ATHENIANS NOT THE BEST GOVT. HE COULD DEVISE; BUT THE BEST
THEY WD. RECEIVE."  FN10 

ON THE OTHER HAND, SOME MEMBERS OF THE CONVENTION FAVORED A WIDER
FEDERAL JURISDICTION THAN WAS ULTIMATELY AUTHORIZED.  THE CONNECTICUT
DELEGATION, LED BY ROGER SHERMAN, PROPOSED "THAT THE LEGISLATURE OF THE
UNITED STATES BE AUTHORISED TO INSTITUTE ONE SUPREME TRIBUNAL, AND SUCH
OTHER TRIBUNALS AS THEY MAY JUDGE NECESSARY FOR THE PURPOSE AFORESAID,
AND ASCERTAIN THEIR RESPECTIVE POWERS AND JURISDICTIONS."  FN11  THIS
PROPOSAL, WHICH IS NOT SUBSTANTIALLY DIFFERENT IN ITS EFFECT FROM THE
INTERPRETATION NOW URGED UPON US, WAS NOT ADOPTED BY THE CONVENTION. 
WHEN IT BECAME ESTABLISHED THAT INFERIOR FEDERAL COURTS WERE TO BE
AUTHORIZED BY THE CONSTITUTION, THE LIMITS OF THEIR JURISDICTION
IMMEDIATELY BECAME AN ISSUE OF PARAMOUNT IMPORTANCE.  THE OUTLINE OF
FEDERAL JURISDICTION WAS ESTABLISHED ONLY AFTER MUCH GIVE AND TAKE,
PROPOSAL AND COUNTERPROPOSAL, AND - IN THE END - COMPROMISE.  IT WAS
EARLY PROPOSED, FOR EXAMPLE, THAT FEDERAL JURISDICTION BE MADE TO
EXTEND TO "ALL PIRACIES & FELONIES ON THE HIGH SEAS, CAPTURES FROM AN
ENEMY; CASES IN WHICH FOREIGNERS OR CITIZENS OF OTHER STATES APPLYING
TO SUCH JURISDICTIONS MAY BE INTERESTED, OR WHICH RESPECT THE
COLLECTION OF THE NATIONAL REVENUE; IMPEACHMENTS OF ANY NATIONAL
OFFICERS, AND QUESTIONS WHICH MAY INVOLVE THE NATIONAL PEACE AND
HARMONY."  FN12  BUT THIS WAS ONLY ONE OF MANY PROPOSALS CONCERNING THE
EXTENT OF FEDERAL JURISDICTION,  FN13  AND NOT BEFORE MANY CONCESSIONS
AND COMPROMISES HAD BEEN MADE WAS THE ENUMERATION OF CASES NOW FOUND IN
ART. III, SEC. 2 AGREED UPON. 

THE JUDICIAL POWER WAS THUS JEALOUSLY GUARDED BY THE STATES AND
UNWILLINGLY GRANTED TO THE NATIONAL JUDICIARY.  ONLY WHEN IT COULD BE
DEMONSTRATED THAT A PARTICULAR HEAD OF JURISDICTION WAS ACUTELY NEEDED
FOR THE PURPOSES OF UNIFORMITY AND NATIONAL HARMONY WAS IT GRANTED.  IN
EVERY STATE CONVENTION FOR RATIFICATION OF THE CONSTITUTION, ADVOCATES
AND OPPONENTS OF RATIFICATION CONSIDERED IN DETAIL THE KINDS OF CASES
AND CONTROVERSIES TO WHICH THE NATIONAL JUDICIAL POWER WAS TO EXTEND. 
EACH HAD TO BE JUSTIFIED.  FN14  FAR FROM ASSUMING THAT THE JUDICIAL
POWER COULD BE, BY ANY MEANS SHORT OF CONSTITUTIONAL AMENDMENT,
EXTENDED BEYOND THOSE CASES EXPRESSLY PROVIDED FOR IN ART. III, THAT
ARTICLE WAS SUBJECTED TO SEVERE ATTACKS ON THE GROUND THAT THOSE POWERS
SPECIFICALLY GIVEN WOULD DESTROY THE STATE COURTS.  A DELEGATE TO THE
VIRGINIA CONVENTION, FOR EXAMPLE, STATED THAT "MY NEXT OBJECTION TO THE
FEDERAL JUDICIARY IS, THAT IT IS NOT EXPRESSED IN A DEFINITE MANNER. 
THE JURISDICTION OF ALL CASES ARISING UNDER THE CONSTITUTION AND THE
LAWS OF THE UNION IS OF STUPENDOUS MAGNITUDE."  FN15  IF, IN ADDITION
TO JUSTIFYING EVERY PARTICLE OF POWER GIVEN TO FEDERAL COURTS BY THE
CONSTITUTION, ITS DEFENDERS HAD BEEN OBLIGED TO JUSTIFY THE COMPETENCE
OF CONGRESS - ITSELF SUSPECT BY THOSE WHO OPPOSED RATIFICATION - TO
EXTEND THAT JURISDICTION WHENEVER IT WAS THOUGHT NECESSARY TO
EFFECTUATE ONE OF THE POWERS EXPRESSLY GIVEN THAT BODY, THEIR TASK
WOULD HAVE BEEN INSUPERABLE.  THE DEBATES MAKE THAT FACT PLAIN. 

THAT THE FEDERAL JUDICIAL POWER WAS RESTRICTED TO THOSE CLASSES OF
CASES SET FORTH IN ART. III WAS CLEARLY THE OPINION OF THOSE WHO HAD
MOST TO DO WITH ITS DRAFTING AND ACCEPTANCE.  IN THE 80TH NUMBER OF THE
FEDERALIST, HAMILTON LISTED THE TYPES OF CASES TO WHICH IT WAS THOUGHT
NECESSARY THAT THE JUDICIARY AUTHORITY OF THE NATION SHOULD EXTEND. 
ALL ARE FOUND REPRESENTED IN ART. III.  FN16  IN THE 81ST NUMBER, HE
WROTE: 

"THE AMOUNT OF THE OBSERVATIONS HITHERTO MADE ON THE AUTHORITY OF THE
JUDICIAL DEPARTMENT IS THIS:  THAT IT HAS BEEN CAREFULLY RESTRICTED TO
THOSE CAUSES WHICH ARE MANIFESTLY PROPER FOR THE COGNIZANCE OF THE
NATIONAL JUDICATURE  ..."  P. 511. 

WHILE IN NO. 82, THE FOLLOWING APPEARS: 

"THE ONLY OUTLINES DESCRIBED (FOR INFERIOR COURTS) ARE THAT THEY
SHALL BE 'INFERIOR TO THE SUPREME COURT,' AND THAT THEY SHALL NOT
EXCEED THE SPECIFIED LIMITS OF THE FEDERAL JUDICIARY."  P. 516. 

AND MADISON, IN A LETTER TO A CORRESPONDENT WHO HAD CONTENDED THAT
THE COMMON LAW HAD BEEN INCORPORATED BY THE CONSTITUTION AS FEDERAL
LAW, WROTE: 

"A CHARACTERISTIC PECULIARITY OF THE GOVT. OF THE U. STATES IS, THAT
ITS POWERS CONSIST OF SPECIAL GRANTS TAKEN FROM THE GENERAL MASS OF
POWER, WHEREAS OTHER GOVTS.  POSSESS THE GENERAL MASS WITH SPECIAL
EXCEPTIONS ONLY.  SUCH BEING THE PLAN OF THE CONSTITUTION, IT CANNOT
WELL BE SUPPOSED THAT THE BODY WHICH FRAMED IT WITH SO MUCH
DELIBERATION, AND WITH SO MANIFEST A PURPOSE OF SPECIFYING ITS OBJECTS,
AND DEFINING ITS BOUNDARIES, WOULD, IF INTENDING THAT THE COMMON LAW
SHD.  BE A PART OF THE NATIONAL CODE, HAVE OMITTED TO EXPRESS OR
DISTINCTLY INDICATE THE INTENTION; WHEN SO MANY FAR INFERIOR PROVISIONS
ARE SO CAREFULLY INSERTED, AND SUCH APPEARS TO HAVE BEEN THE PUBLIC
VIEW TAKEN OF THE INSTRUMENT, WHETHER WE RECUR TO THE PERIOD OF ITS
RATIFICATION BY THE STATES, OR TO THE FEDERAL PRACTICE UNDER IT." 
FN17 

CASES IN THIS COURT WHICH SUPPORT THE VIEW THAT ART. III, SEC. 2
LIMITS THE POWER OF CONSTITUTIONAL COURTS ARE NOT LACKING.  IN THE
MAYOR V. COOPER, 6 WALL.  247, 252(1867), THE COURT DEFINED THE
JURISDICTION OF INFERIOR FEDERAL COURTS AS FOLLOWS: 

"AS REGARDS ALL COURTS OF THE UNITED STATES INFERIOR TO THIS
TRIBUNAL, TWO THINGS ARE NECESSARY TO CREATE JURISDICTION, WHETHER
ORIGINAL OR APPELLATE.  THE CONSTITUTION MUST HAVE GIVEN TO THE COURT
THE CAPACITY TO TAKE IT, AND AN ACT OF CONGRESS MUST HAVE SUPPLIED IT.
THEIR CONCURRENCE IS NECESSARY TO VEST IT.  IT IS THE DUTY OF CONGRESS
TO ACT FOR THAT PURPOSE UP TO THE LIMITS OF THE GRANTED POWER.  THEY
MAY FALL SHORT OF IT, BUT CANNOT EXCEED IT." 

AND IN A SERIES OF THREE CASES DECIDED BETWEEN 1800 AND 1809, THE
COURT REFUSED TO GIVE LITERAL EFFECT TO SEC. 11 OF THE JUDICIARY ACT OF
1789, WHICH HAD EXTENDED THE JURISDICTION OF CIRCUIT COURTS TO SUITS
WHERE "AN ALIEN IS A PARTY," BECAUSE OF THE LIMITATIONS IMPOSED BY ART.
III.  IN MOSSMAN V. HIGGINSON, 4 DALL.  12, 14(1800), IT WAS DECIDED
THAT "AS THE LEGISLATIVE POWER OF CONFERRING JURISDICTION ON THE
FEDERAL COURTS, IS, IN THIS RESPECT, CONFINED TO SUITS BETWEEN CITIZENS
AND FOREIGNERS, WE MUST SO EXPOUND THE TERMS OF THE LAW, AS TO MEET THE
CASE, 'WHERE, INDEED, AN ALIEN IS ONE PARTY,' BUT A CITIZEN IS THE
OTHER."  THIS CONSTRUCTION OF THE STATUTE WAS ADHERED TO IN MONTALET V.
MURRAY, 4 CRANCH 46(1807); AND IN HODGSON V. BOWERBANK, 5 CRANCH
303(1809), WHERE CHIEF JUSTICE MARSHALL DISMISSED THE CONTENTION THAT
"THE JUDICIARY ACT GIVES JURISDICTION TO THE CIRCUIT COURTS IN ALL
SUITS IN WHICH AN ALIEN IS A PARTY" WITH THIS ADMONITION:  "TURN TO THE
ARTICLE OF THE CONSTITUTION OF THE UNITED STATES, FOR THE STATUTE
CANNOT EXTEND THE JURISDICTION BEYOND THE LIMITS OF THE CONSTITUTION." 

OTHER EXAMPLES MAY BE CITED OF THE COURT'S CONSISTENT ADHERENCE TO
THE PRINCIPLE THAT THE JUDICIAL POWER OF THE UNITED STATES IS A
CONSTITUENT PART OF THE CONCESSIONS MADE BY THE STATES TO THE FEDERAL
GOVERNMENT AND MAY NOT BE EXTENDED.  SEE TURNER V. BANK OF NORTH
AMERICA, SUPRA; UNITED STATES V. HUDSON AND GOODWIN, 7 CRANCH 32,
33(1812); MURRAY'S LESSEE V. HOBOKEN LAND AND IMPROVEMENT CO., 18 HOW. 
272, 280-281(1855); KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, 233
234(1922); EX PARTE BAKELITE CORP., 279 U.S. 438, 449(1929); FEDERAL
RADIO COMMISSION V. GENERAL ELECTRIC CO., 281 U.S. 464, 469(1930). 
OVER A CENTURY AND A HALF OF CONSISTENT INTERPRETATION OF ART. III IS
WELL SUMMED UP IN ONE SENTENCE FROM THIS COURT'S OPINION IN SHELDON V.
SILL, 8 HOW.  441, 449(1850): 

"THE CONSTITUTION HAS DEFINED THE LIMITS OF THE JUDICIAL POWER OF THE
UNITED STATES, BUT HAS NOT PRESCRIBED HOW MUCH OF IT SHALL BE EXERCISED
BY THE CIRCUIT COURT; CONSEQUENTLY, THE STATUTE WHICH DOES PRESCRIBE
THE LIMITS OF THEIR JURISDICTION, CANNOT BE IN CONFLICT WITH THE
CONSTITUTION, UNLESS IT CONFERS POWERS NOT ENUMERATED THEREIN." 

THE CASES CHIEFLY RELIED UPON BY THOSE WHO CONTEND THAT ART. III DOES
NOT DEFINE THE LIMITS OF THE JUDICIAL POWER ARE O'DONOGHUE V. UNITED
STATES, 289 U.S. 516(1933), AND WILLIAMS V. UNITED STATES, 289 U.S.
553(1933), WHICH CONCERNED REDUCTIONS IN SALARY OF JUDGES OF THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AND THE COURT OF CLAIMS
RESPECTIVELY.  IN THESE CASES, THIS COURT HELD THAT ART. III, SEC. 1 OF
THE CONSTITUTION FORBADE REDUCTION OF THE SALARY OF THE FORMER, WHO WAS
FOUND TO BE A JUDGE OF A "CONSTITUTIONAL" (I.E., AN INFERIOR COURT AS
USED IN ARTS. I AND III) COURT, BUT NOT OF THE LATTER, A JUDGE OF A
"LEGISLATIVE" COURT. 

TWO SEPARATE BUT RELATED POINTS CONCERNING THE O'DONOGHUE CASE SHOULD
BE EMPHASIZED.  THE FIRST IS THAT SINCE DISTRICT OF COLUMBIA COURTS MAY
BE GIVEN NONJUDICIAL DUTIES, BUTTERWORTH V. HOE, 112 U.S. 50(1884);
BALDWIN CO. V. HOWARD CO., 256 U.S. 35(1921); KELLER V. POTOMAC
ELECTRIC CO., SUPRA, RELIANCE UPON THAT CASE TO SUPPORT THE ACT NOW
UNDER CONSIDERATION IS INCOMPATIBLE WITH THE POSITION THAT
CONSTITUTIONAL COURTS MAY ONLY DECIDE "CASES" AND "CONTROVERSIES" OF A
JUDICIAL NATURE.  THE SECOND IS THAT THE RATIONALE OF THE O'DONOGHUE
CASE IS, BY ITS TERMS, LIMITED TO COURTS OF THE DISTRICT.  FOR THE
COURT SAID (AT P. 546):  "IF, IN CREATING AND DEFINING THE JURISDICTION
OF THE COURTS OF THE DISTRICT, CONGRESS WERE LIMITED TO ART. III, AS IT
IS IN DEALING WITH THE OTHER FEDERAL COURTS, THE ADMINISTRATIVE AND
OTHER JURISDICTION SPOKEN OF COULD NOT BE CONFERRED UPON THE FORMER." 
IN VIEW OF THIS EXPRESS LIMITATION, THE O'DONOGHUE CASE LENDS NO
SUPPORT TO THE ACT NOW IN QUESTION.  TO EXTEND ITS APPLICABILITY BEYOND
THE COURTS OF THE DISTRICT IS WARRANTED NEITHER BY THE LANGUAGE NOR THE
REASONING OF THAT CASE.  THE COURT IN NO WAY DIMINISHED THE AUTHORITY
OF AMERICAN INSURANCE CO. V. CANTER, 1 PET. 511(1828), WHICH HAD HELD
THAT THE COURTS OF FLORIDA TERRITORY WERE LEGISLATIVE COURTS NOT
CREATED PURSUANT TO ART. III AND INCAPABLE OF RECEIVING THE JUDICIAL
POWER SET OUT THEREIN.  SINCE TERRITORIAL COURTS CANNOT BE INVESTED
WITH ART. III POWER, THE STRICT DICHOTOMY BETWEEN LEGISLATIVE AND
CONSTITUTIONAL COURTS STILL EXISTS - EXCEPT IN THE DISTRICT OF
COLUMBIA.  IT IS NOT ENOUGH TO REFER TO THE BREADTH OF CONGRESSIONAL
POWER OVER THE DISTRICT; THAT SUCH POWER IS NATIONAL IN CHARACTER
RATHER THAN MERELY LOCAL.  THE POWER OF CONGRESS OVER THE TERRITORIES
IS EQUALLY BROAD, YET TERRITORIAL COURTS CANNOT BE INVESTED WITH ART.
III POWER UNDER THE O'DONOGHUE CASE.  AND SOME OF THE VERY STATEMENTS
NOW RELIED UPON AS INDICATING THE SCOPE OF CONGRESS' POWER OVER THE
DISTRICT  FN18  WERE QUOTED IN THE O'DONOGHUE CASE, BUT THE RATIONALE
OF THAT CASE WAS EXPRESSLY LIMITED TO COURTS OF THE DISTRICT, AS NOTED
ABOVE.  THE DISTRICT OF COLUMBIA COURTS WERE THERE REGARDED AS UNIQUE -
DIFFERENT IN POWERS AND MAKEUP FROM EITHER TERRITORIAL COURTS OR OTHER
CONSTITUTIONAL COURTS.  EXTENSION OF THE O'DONOGHUE CASE TO ALL
CONSTITUTIONAL COURTS IS CLEARLY UNWARRANTED UNDER THESE CIRCUMSTANCES,
ESPECIALLY IN THE FACE OF THE UNCONTRADICTED CONSTITUTIONAL HISTORY
PREVIOUSLY OUTLINED. 

EXCEPT IN THE DISTRICT OF COLUMBIA, THEREFORE, AMERICAN INSURANCE CO.
V. CANTER, SUPRA, AND A LONG LINE OF CASES IN THE SAME VEIN  FN19
PROHIBIT THE INTERMIXTURE OR COMBINATION OF THE PERSONNEL, POWERS, OR
DUTIES OF CONSTITUTIONAL AND LEGISLATIVE COURTS.  WHETHER A COURT IS OF
ONE CATEGORY OR THE OTHER DEPENDS UPON WHAT POWER OF CONGRESS WAS
UTILIZED IN ITS CREATION.  IF IT WAS THE POWER TO CREATE INFERIOR
CONSTITUTIONAL COURTS, THE COURT MAY EXERCISE ONLY THE JUDICIAL POWER
OUTLINED IN ART. III.  IF CONGRESS CREATES A JUDICIAL BODY TO IMPLEMENT
ANOTHER OF ITS CONSTITUTIONAL POWERS, THAT BODY IS A LEGISLATIVE COURT
AND MAY EXERCISE NONE OF THE JUDICIAL POWER OF ART. III.  FN20  WE HAVE
HELD THAT THE ANSWER TO THE QUESTION WHETHER A COURT IS OF ONE KIND OR
ANOTHER "LIES IN THE POWER UNDER WHICH THE COURT WAS CREATED AND IN THE
JURISDICTION CONFERRED."  EX PARTE BAKELITE CORP., SUPRA AT 459.  I
WOULD ADHERE TO THAT TEST. 

WHAT HAS BEEN SAID DOES NOT MEAN, OF COURSE, THAT LEGISLATIVE COURTS
CANNOT EXERCISE JURISDICTION OVER QUESTIONS OF THE SAME NATURE AS THOSE
ENUMERATED IN ART. III, SEC. 2.  IT WAS CLEARLY CONTEMPLATED BY THE
FRAMERS THAT STATE COURTS SHOULD HAVE FEDERAL QUESTION JURISDICTION
CONCURRENT WITH THAT EXERCISED BY INFERIOR FEDERAL COURTS, YET THEY ARE
NOT CONSTITUTIONAL COURTS NOR DO THEY EXERCISE THE JUDICIAL POWER OF
ART. III.  THE LEGISLATIVE COURTS CREATED BY CONGRESS ALSO CAN AND DO
DECIDE QUESTIONS ARISING UNDER THE CONSTITUTION AND LAWS OF THE UNITED
STATES (AND, IN THE CASE OF TERRITORIAL COURTS, OTHER TYPES OF
JURISDICTION ENUMERATED IN ART. III, SEC. 2 AS WELL), BUT THAT
JURISDICTION IS NOT, AND CANNOT BE, "A PART OF THAT JUDICIAL POWER
WHICH IS DEFINED IN THE 3D ARTICLE OF THE CONSTITUTION."  THESE COURTS
ARE "INCAPABLE OF RECEIVING IT."  AMERICAN INSURANCE CO. V. CANTER,
SUPRA AT 546; REYNOLDS V. UNITED STATES, SUPRA AT 154.  FN21 

THE APPELLATE JURISDICTION OF THIS COURT IS, IN FACT, DEPENDENT UPON
THE FACT THAT THE CASE REVIEWED IS OF A KIND WITHIN THE ART. III
ENUMERATION.  THAT ARTICLE, AFTER SETTING OUT THE CASES OF WHICH
INFERIOR COURTS MAY TAKE COGNIZANCE AND THE ORIGINAL JURISDICTION OF
THIS COURT, EXTENDS THE APPELLATE JURISDICTION OF THE SUPREME COURT
ONLY AS FAR AS "ALL THE OTHER CASES BEFORE MENTIONED."  WE CAN NO MORE
REVIEW A LEGISLATIVE COURT'S DECISION OF A CASE WHICH IS NOT AMONG
THOSE ENUMERATED IN ART. III THAN WE CAN HEAR A CASE FROM A STATE COURT
INVOLVING PURELY STATE LAW QUESTIONS.  BUT A QUESTION UNDER THE
CONSTITUTION AND LAWS OF THE UNITED STATES, WHETHER ARISING IN A
CONSTITUTIONAL COURT, A STATE COURT, OR A LEGISLATIVE COURT MAY, UNDER
THE CONSTITUTION, BE A SUBJECT OF THIS COURT'S APPELLATE JURISDICTION. 
IT WAS LONG AGO HELD THAT 

"THE APPELLATE POWER IS NOT LIMITED BY THE TERMS OF THE THIRD ARTICLE
TO ANY PARTICULAR COURTS.  THE WORDS ARE, 'THE JUDICIAL POWER (WHICH
INCLUDES APPELLATE POWER) SHALL EXTEND TO ALL CASES,' &C., AND 'IN ALL
OTHER CASES BEFORE MENTIONED THE SUPREME COURT SHALL HAVE APPELLATE
JURISDICTION.'  IT IS THE CASE, THEN, AND NOT THE COURT, THAT GIVES THE
JURISDICTION.  IF THE JUDICIAL POWER EXTENDS TO THE CASE, IT WILL BE IN
VAIN TO SEARCH IN THE LETTER OF THE CONSTITUTION FOR ANY QUALIFICATION
AS TO THE TRIBUNAL WHERE IT DEPENDS."  MARTIN V. HUNTER'S LESSEE, 1
WHEAT.  304, 338(1816). 

THERE IS NO ANOMALY, THEREFORE, IN THE FACT THAT LEGISLATIVE COURTS,
AS WELL AS CONSTITUTIONAL COURTS, EXERCISE FEDERAL QUESTION
JURISDICTION, AND THAT THEY SOMETIMES EXERCISE CONCURRENT JURISDICTION
OVER THE SAME MATTERS.  THAT DOES NOT MAKE THE FORMER CONSTITUTIONAL
COURTS, AMERICAN INSURANCE CO. V. CANTER, SUPRA; EX PARTE BAKELITE
CORP., SUPRA.  STILL LESS DOES IT MAKE THE LATTER LEGISLATIVE COURTS,
WHICH IS THE EFFECT OF THE STATUTE NOW BEING CONSIDERED.  IT IS ONE
THING TO SAY THAT LEGISLATIVE COURTS MAY EXERCISE JURISDICTION OVER
SOME OF THE SAME MATTERS THAT ARE WITHIN ART. III JUDICIAL POWER.  IT
IS QUITE ANOTHER THING TO HOLD THAT CONSTITUTIONAL COURTS MAY TAKE
COGNIZANCE OF CAUSES WHICH ARE NOT WITHIN THE SCOPE OF THAT POWER. 

IT MAY BE ARGUED THAT THE DISTINCTION BETWEEN CONSTITUTIONAL AND
LEGISLATIVE COURTS IS MEANINGLESS IF THE LATTER MAY BE INVESTED WITH
JURISDICTION OVER THE SUBJECTS OF ART. III JUDICIAL POWER.  BUT THERE
ARE LIMITATIONS WHICH INSURE THE PRESERVATION OF THE SYSTEM OF FEDERAL
CONSTITUTIONAL COURTS DISTINCT FROM LEGISLATIVE COURTS.  IN THE FIRST
PLACE, A LEGISLATIVE COURT MUST BE ESTABLISHED UNDER SOME ONE OF THE
SPECIFIC POWERS GIVEN TO CONGRESS, AND IT IS UNLIKELY THAT ALL OF THE
SUBJECTS OF THE JUDICIAL POWER COULD BE JUSTIFIED AS AN EXERCISE OF
THOSE POWERS.  FN22  FURTHERMORE, WE CANNOT IMPUTE TO CONGRESS AN
INTENT NOW OR IN THE FUTURE TO TRANSFER JURISDICTION FROM
CONSTITUTIONAL TO LEGISLATIVE COURTS FOR THE PURPOSE OF EMASCULATING
THE FORMER.  CHIEF JUSTICE MARSHALL SUGGESTED ANOTHER LIMITATION IN THE
CANTER CASE, WHEN HE SAID THAT WITHIN THE STATES, ADMIRALTY
JURISDICTION CAN BE EXERCISED SOLELY BY CONSTITUTIONAL COURTS, ALTHOUGH
THAT LIMITATION DOES NOT APPLY TO THE TERRITORIES.  IT IS AT LEAST OPEN
TO QUESTION, THEREFORE, WHETHER ALL OF THE SUBJECTS OF ART. III
JUDICIAL POWER, OR ONLY FEDERAL QUESTION JURISDICTION, MAY BE
TRANSFERRED TO LEGISLATIVE COURTS WITHIN THE STATES.  FINALLY, EX PARTE
BAKELITE CORP., SUPRA, HAS BEEN READ AS SUGGESTING THAT THE
JURISDICTION OF LEGISLATIVE COURTS IS LIMITED TO MATTERS WHICH, WHILE
PROPER SUBJECTS OF JUDICIAL DETERMINATION, NEED NOT BE SO DETERMINED
UNDER THE CONSTITUTION.  FN23  THE LEAST THAT MAY BE SAID IS THAT NO
DECISIONS OF THIS COURT HAVE SUGGESTED THAT LEGISLATIVE COURTS MAY TAKE
OVER THE ENTIRE FIELD OF FEDERAL JUDICIAL AUTHORITY. 

THERE IS A CERTAIN SURFACE APPEAL TO THE ARGUMENT THAT, IF CONGRESS
MAY CREATE STATUTORY COURTS TO HEAR THESE CASES, IT SHOULD BE ABLE TO
ADOPT THE LESS EXPENSIVE AND MORE PRACTICAL EXPEDIENT OF VESTING THAT
JURISDICTION IN THE EXISTING AND FUNCTIONING FEDERAL COURTS THROUGHOUT
THE COUNTRY.  NO DOUBT A SIMILAR ARGUMENT WAS PRESSED UPON THE JUDGES
IN HAYBURN'S CASE.  UNLESS EXPEDIENCY IS TO BE THE TEST OF JURISDICTION
OF THE FEDERAL COURTS, HOWEVER, THE ARGUMENT FALLS OF ITS OWN WEIGHT. 
THE FRAMERS UNQUESTIONABLY INTENDED THAT THE JURISDICTION OF INFERIOR
FEDERAL COURTS BE LIMITED TO THOSE CASES AND CONTROVERSIES ENUMERATED
IN ART. III.  I WOULD NOT SACRIFICE THAT PRINCIPLE ON THE ALTAR OF
EXPEDIENCY. 

                                 II. 

THERE ARE NUMEROUS SECTIONS OF THE CONSTITUTION WHICH ARE CONCERNED
SOLELY WITH THE MECHANICS OF GOVERNMENT AND, OF NECESSITY, SET RATHER
ARBITRARY LIMITS UPON THE EXERCISE OF POWER BY THE THREE BRANCHES OF
GOVERNMENT.  NO DOUBT REQUIREMENTS OF THIS KIND HAVE PROVEN IN THE
PAST, AND MAY, IN THE FUTURE, PROVE UNDULY RESTRICTIVE AND
UNDESIRABLE.  YET IF A QUESTION CONCERNING ANY ONE OF THEM WERE BEFORE
US, I DO NOT SUPPOSE THAT ANY MEMBER OF THE COURT WOULD READ INTO THE
CONSTITUTION THE CHANGES THOUGHT DESIRABLE IN OUR DAY. 

THE ONLY DIFFERENCE IN RESPECT OF THE MOST EXPLICIT OF THESE
LIMITATIONS OF POWER AND THE LIMITATION IMPOSED BY THE WORD "STATE" IN
ART. III IS THAT THE MEANING URGED UPON THE COURT IS NOT EXPRESSLY
CONTROVERTED BY THE LANGUAGE OF THE CONSTITUTION.  THAT IT WAS NOT THE
SPECIFIC INTENT OF THE FRAMERS TO EXTEND DIVERSITY JURISDICTION TO
SUITS BETWEEN CITIZENS OF THE DISTRICT OF COLUMBIA AND THE STATES SEEMS
TO BE CONCEDED.  ONE WELL VERSED IN THAT SUBJECT, WRITING FOR THE COURT
WITHIN A FEW YEARS OF ADOPTION OF THE CONSTITUTION, SO HELD. 

THE QUESTION IS, THEN, WHETHER THIS IS ONE OF THOSE SECTIONS OF THE
CONSTITUTION TO WHICH TIME AND EXPERIENCE WERE INTENDED TO GIVE
CONTENT, OR A PROVISION CONCERNED SOLELY WITH THE MECHANICS OF
GOVERNMENT.  I THINK THERE CAN BE LITTLE DOUBT BUT THAT IT WAS THE
LATTER.  THAT WE WOULD NOW WRITE THE SECTION DIFFERENTLY SEEMS HARDLY A
SUFFICIENT JUSTIFICATION FOR AN INTERPRETATION ADMITTEDLY INCONSONANT
WITH THE INTENT OF THE FRAMERS.  OURS IS NOT AN AMENDATORY FUNCTION. 

I HARDLY NEED ADD THAT I CONSIDER A FINDING OF UNCONSTITUTIONALITY OF
A STATUTE A MATTER OF GRAVE CONCERN.  NEVERTHELESS, CONGRESS CANNOT DO
THAT WHICH THE CONSTITUTION SPECIFICALLY FORBIDS.  I THINK THAT IT HAS
ATTEMPTED TO DO SO HERE. 

FN1  SEE ALSO SHELDON V. SILL, 8 HOW.  441(1850); KLINE V. BURKE
CONSTRUCTION CO., 260 U.S. 226(1922); LAUF V. E.G. SHINNER & CO., 303
U.S. 323(1938); LOCKERTY V. PHILLIPS, 319 U.S. 182(1943). 

FN2  I.E., IS AN ENUMERATION OF CASES TO WHICH CONGRESS MAY EXTEND
THE JURISDICTION OF THE FEDERAL COURTS WITHOUT INVOKING OTHER OF ITS
POWERS UNDER THE CONSTITUTION. 

FN3  THIS PRINCIPLE, IMPLICIT IN THE ARGUMENTS AT THE CONSTITUTIONAL
CONVENTION, WAS MADE EXPLICIT IN THE 10TH AMENDMENT. 

FN4  2 FARRAND, RECORDS OF THE FEDERAL CONVENTION 341, HEREINAFTER
CITED AS FARRAND. 

FN5  ID. AT 430. 

FN6  SEE MUSKRAT V. UNITED STATES, 219 U.S. 346, 356(1911). 

FN7  2 FARRAND 425. 

FN8  THE PROPRIETY OF CONSIDERING THE PROPOSALS AND DEBATES OF THE
CONSTITUTIONAL CONVENTION WAS LONG AGO CONSIDERED BY THOSE MOST
INTIMATELY CONCERNED WITH ITS FORMULATION.  WASHINGTON, IN HIS MESSAGE
TO THE HOUSE OF REPRESENTATIVES REFUSING THE DEMANDS OF THAT BODY FOR
THE PAPERS RELATING TO JAY'S TREATY, STATED:  "IF OTHER PROOFS THAN
THESE, AND THE PLAIN LETTER OF THE CONSTITUTION ITSELF, BE NECESSARY TO
ASCERTAIN THE POINT UNDER CONSIDERATION, THEY MAY BE FOUND IN THE
JOURNALS OF THE GENERAL CONVENTION, WHICH I HAVE DEPOSITED IN THE
OFFICE OF THE DEPARTMENT OF STATE.  IN THOSE JOURNALS IT WILL APPEAR,
THAT A PROPOSITION WAS MADE, 'THAT NO TREATY SHOULD BE BINDING ON THE
UNITED STATES WHICH WAS NOT RATIFIED BY A LAW,' AND THAT THE
PROPOSITION WAS EXPLICITLY REJECTED."  5 ANNALS OF CONGRESS, FOURTH
CONGRESS, 1ST SESS., P. 761.  SEE ALSO THE COMMENT OF MADISON AT A
LATER DATE.  9 WRITINGS OF JAMES MADISON 240. 

FN9  1 FARRAND 124.  SEE THE ARGUMENT OF LUTHER MARTIN BEFORE THE
MARYLAND HOUSE OF REPRESENTATIVES OPPOSING RATIFICATION OF THE
CONSTITUTION IN 3 FARRAND 156.  SEE ALSO 2 ELLIOT, DEBATES 408; 3 ID.
AT 562 ET SEQ. 

FN10  THIS ACCOUNT, TAKEN FROM MADISON'S NOTES, IS FOUND IN 1 FARRAND
124-125. 

FN11  3 FARRAND 616. 

FN12  1 FARRAND AT 22. 

FN13  ID. AT 231.  THE SENSE OF THE CONVENTION AT THIS POINT WAS
EXPRESSED IN YATES' NOTES AS FOLLOWS:  "GOV.  RANDOLPH OBSERVED THE
DIFFICULTY IN ESTABLISHING THE POWERS OF THE JUDICIARY - THE OBJECT
HOWEVER AT PRESENT IS TO ESTABLISH THIS PRINCIPLE, TO WIT, THE SECURITY
OF FOREIGNERS WHERE TREATIES ARE IN THEIR FAVOR, AND TO PRESERVE THE
HARMONY OF STATES AND THAT OF THE CITIZENS THEREOF.  THIS BEING ONCE
ESTABLISHED, IT WILL BE THE BUSINESS OF A SUB-COMMITTEE TO DETAIL IT;
AND THEREFORE MOVED TO OBLITERATE SUCH PARTS OF THE RESOLVE SO AS ONLY
TO ESTABLISH THE PRINCIPLE, TO WIT, THAT THE JURISDICTION OF THE
NATIONAL JUDICIARY SHALL EXTEND TO ALL CASES OF NATIONAL REVENUE,
IMPEACHMENT OF NATIONAL OFFICERS, AND QUESTIONS WHICH INVOLVE THE
NATIONAL PEACE OR HARMONY.  AGREED TO UNANIMOUSLY."  1 FARRAND 238. 

FN14  SEE, E.G., MADISON'S DEFENSE OF THE JUDICIARY ARTICLE BEFORE
THE VIRGINIA CONVENTION, 5 WRITINGS OF JAMES MADISON 216-225; 2 ELLIOT,
DEBATES 109; ID. AT 409, WHERE AMONG THE RESOLUTIONS AFFECTING ART. III
WAS ONE WHICH "RESOLVED, AS THE OPINION OF THIS COMMITTEE, THAT THE
JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES, OR OF ANY OTHER
COURT TO BE INSTITUTED BY THE CONGRESS, OUGHT NOT, IN ANY CASE, TO BE
INCREASED, ENLARGED, OR EXTENDED, BY ANY FICTION, COLLUSION, OR MERE
SUGGESTION"; ID. AT 489-494; 3 ELLIOT, DEBATES 517-584. 

FN15  3 ELLIOT, DEBATES 565.  AND SEE PATRICK HENRY'S REMARKS, ID. AT
539-546. 

FN16  THE CASES ENUMERATED WERE THE FOLLOWING:  "1ST, TO ALL THOSE
WHICH ARISE OUT OF THE LAWS OF THE UNITED STATES, PASSED IN PURSUANCE
OF THEIR JUST AND CONSTITUTIONAL POWERS OF LEGISLATION; 2D, TO ALL
THOSE WHICH CONCERN THE EXECUTION OF THE PROVISIONS EXPRESSLY CONTAINED
IN THE ARTICLES OF UNION; 3D, TO ALL THOSE IN WHICH THE UNITED STATES
ARE A PARTY; 4TH, TO ALL THOSE WHICH INVOLVE THE PEACE OF THE
CONFEDERACY, WHETHER THEY RELATE TO THE INTERCOURSE BETWEEN THE UNITED
STATES AND FOREIGN NATIONS, OR TO THAT BETWEEN THE STATES THEMSELVES;
5TH, TO ALL THOSE WHICH ORIGINATE ON THE HIGH SEAS, AND ARE OF
ADMIRALTY OR MARITIME JURISDICTION; AND, LASTLY, TO ALL THOSE IN WHICH
THE STATE TRIBUNALS CANNOT BE SUPPOSED TO BE IMPARTIAL AND UNBIASED." 
P. 494.    FN17  9 WRITINGS OF JAMES MADISON 199-200.  AND SEE UNITED
STATES V. HUDSON AND GOODWIN, 7 CRANCH 32(1812); ERIE R. CO. V.
TOMPKINS, 304 U.S. 64(1938). 

FN18  FROM GRETHER V. WRIGHT, 75 F. 742(1896).    FN19  SEE E.G.,
BENNER V. PORTER, 9 HOW.  235(1850); CLINTON V. ENGLEBRECHT, 13 WALL. 
434(1871); REYNOLDS V. UNITED STATES, 98 U.S. 145(1878); MCALLISTER V.
UNITED STATES, 141 U.S. 174(1891); UNITED STATES V. BURROUGHS, 289 U.S.
159(1933); EX PARTE BAKELITE CORP., 279 U.S. 438(1929). 

FN20 IN WILLIAMS V. UNITED STATES, 289 U.S. 553(1933), THE COURT
FOUND THAT THE COURT OF CLAIMS HAD BEEN CREATED PURSUANT TO THE POWER
OF CONGRESS UNDER ART. I TO PAY THE DEBTS OF THE UNITED STATES AND HAD
BEEN GIVEN POWERS AND DUTIES INCONSISTENT WITH THOSE OF AN ART. III
COURT.  THE COURT'S CONSIDERATION OF THE QUESTION WHETHER
"CONTROVERSIES TO WHICH THE UNITED STATES SHALL BE A PARTY" IN ART. III
INCLUDES SUITS AGAINST THE UNITED STATES WAS THEREFORE UNNECESSARY TO
THE DECISION, SINCE AN AFFIRMATIVE ANSWER WOULD NOT HAVE CONVERTED THE
COURT OF CLAIMS INTO A CONSTITUTIONAL COURT.  IT IS "INCAPABLE OF
RECEIVING" THE ART. III POWER.  AMERICAN INSURANCE CO. V. CANTER,
SUPRA.  FURTHERMORE, THE COURT RECOGNIZED INFERENTIALLY THAT THE COURT
OF CLAIMS DOES EXERCISE JURISDICTION OVER SOME QUESTIONS OF THE KIND
ENUMERATED IN ART. III WHEN, WITH REFERENCE TO CLAIMS FOUNDED UPON THE
CONSTITUTION, IT HELD THAT "THE REQUIREMENT IS ONE IMPOSED BY THE
CONSTITUTION AND EQUALLY APPLICABLE WHETHER JURISDICTION BE EXERCISED
BY A LEGISLATIVE COURT OR A CONSTITUTIONAL COURT."  289 U.S. AT 581. 
SINCE COURT OF CLAIMS JURISDICTION ALSO INCLUDES CLAIMS FOUNDED UPON
ANY ACT OF CONGRESS, IT IS CLEAR THAT THAT COURT EXERCISES PARALLEL
JURISDICTION WITH THAT OF CONSTITUTIONAL COURTS OVER CASES ARISING
UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES, ALTHOUGH LIMITED
TO SUITS INVOLVING CLAIMS AGAINST THE UNITED STATES.  THIS POINTS UP
THE FACT THAT THE COURT'S DISCUSSION OF THE PHRASE, "CONTROVERSIES TO
WHICH THE UNITED STATES SHALL BE A PARTY," WAS UNNECESSARY TO THE
DECISION. 

FN21  IT IS ARGUED THAT BECAUSE FEDERAL DISTRICT COURTS EXERCISE
JURISDICTION OVER CLAIMS AGAINST THE UNITED STATES CONCURRENT WITH THAT
OF THE COURT OF CLAIMS, THE FORMER ARE EXERCISING JURISDICTION OF NON
ART.  III NATURE.  WHETHER OR NOT THE DICTUM IN WILLIAMS V. UNITED
STATES, 289 U.S. 553(1933) THAT SUITS AGAINST THE UNITED STATES ARE NOT
WITHIN THE ART. III PHRASE, "CONTROVERSIES TO WHICH THE UNITED STATES
SHALL BE A PARTY," PROVES CORRECT, SEE NOTE 20, SUPRA, SUCH ACTIONS
SEEM TO BE CLEARLY WITHIN THE ART. III FEDERAL QUESTION JURISDICTION. 
SEE 2 MOORE, FEDERAL PRACTICE (1948 ED.)  1633.  OF COURSE THE FACT
THAT CONGRESS EXTENDS THE JURISDICTION OF FEDERAL COURTS TO SUITS
INVOLVING CERTAIN SUBJECT MATTER DOES NOT ITSELF MAKE THEM THE SUBJECT
OF FEDERAL QUESTION JURISDICTION.  BUT THE SOVEREIGN'S IMMUNITY FROM
SUIT HAS NEVER BEEN REGARDED SIMPLY AS A QUESTION OF UNAVAILABILITY OF
A FORUM.  AS HAMILTON SAID IN THE FEDERALIST, NO. 81, P. 508:  "THE
CONTRACTS BETWEEN A NATION AND INDIVIDUALS ARE ONLY BINDING ON THE
CONSCIENCE OF THE SOVEREIGN, AND HAVE NO PRETENSIONS TO A COMPULSIVE
FORCE.  THEY CONFER NO RIGHT OF ACTION, INDEPENDENT OF THE SOVEREIGN
WILL."  WHEN THE SOVEREIGN CONSENTS TO BE SUED, THEREFORE, CONSIDERABLY
MORE IS INVOLVED THAN OPENING THE COURTS TO PLAINTIFFS ALREADY
POSSESSED OF CAUSES OF ACTION.  FOR AS MR. JUSTICE BRANDEIS SAID IN
LYNCH V. UNITED STATES, 292 U.S. 571, 582(1934): "THE SOVEREIGN'S
IMMUNITY FROM SUIT EXISTS WHATEVER THE CHARACTER OF THE PROCEEDING OR
THE SOURCE OF THE RIGHT SOUGHT TO BE ENFORCED.  IT APPLIES ALIKE TO
CAUSES OF ACTION ARISING UNDER ACTS OF CONGRESS, ...  AND TO THOSE
ARISING FROM SOME VIOLATION OF RIGHTS CONFERRED UPON THE CITIZEN BY THE
CONSTITUTION,  ...  THE CHARACTER OF THE CAUSE OF ACTION - THE FACT
THAT IT IS IN CONTRACT AS DISTINGUISHED FROM TORT - MAY BE IMPORTANT IN
DETERMINING (AS UNDER THE TUCKER ACT) WHETHER CONSENT TO SUE WAS
GIVEN.  OTHERWISE, IT IS OF NO SIGNIFICANCE.  FOR IMMUNITY FROM SUIT IS
AN ATTRIBUTE OF SOVEREIGNTY WHICH MAY NOT BE BARTERED AWAY." 

SINCE ANY RIGHT OF ACTION AGAINST THE UNITED STATES IS COMPLETELY AND
WHOLLY DEPENDENT UPON WHETHER AN ACT OF CONGRESS HAS AUTHORIZED THE
SUIT, SEE UNITED STATES V. MINNESOTA MUTUAL INVESTMENT CO., 271 U.S.
212, 217(1926), A QUESTION ARISING UNDER THE LAWS OF THE UNITED STATES,
AS THAT PHRASE IS USED IN ART. III, IS CLEARLY PRESENTED BY ANY CLAIM
AGAINST THE FEDERAL GOVERNMENT.  SINCE CONGRESS HAS DECREED THAT ALL
SUCH ACTIONS SHALL BE BROUGHT IN FEDERAL COURTS, THE QUESTION PRESENTED
IN GULLY V. FIRST NATIONAL BANK, 299 U.S. 109(1936), PUERTO RICO V.
RUSSELL & CO., 288 U.S. 476(1933) AND RELATED CASES IS NOT INVOLVED. 

FN22  EXCEPT, PERHAPS, WHEN CONGRESS LEGISLATES FOR THE TERRITORIES
OR THE DISTRICT OF COLUMBIA. 

FN23  KATZ, FEDERAL LEGISLATIVE COURTS, 43 HARV. L. REV. 894, 916
917. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE REED CONCURS,
DISSENTING. 

NO PROVISIONS OF THE CONSTITUTION, BARRING ONLY THOSE THAT DRAW ON
ARITHMETIC, AS IN PRESCRIBING THE QUALIFYING AGE FOR A PRESIDENT AND
MEMBERS OF A CONGRESS OR THE LENGTH OF THEIR TENURE OF OFFICE, ARE MORE
EXPLICIT AND SPECIFIC THAN THOSE PERTAINING TO COURTS ESTABLISHED UNDER
ARTICLE III.  "THE JUDICIAL POWER" WHICH IS "VESTED" IN THESE TRIBUNALS
AND THE SAFEGUARDS UNDER WHICH THEIR JUDGES FUNCTION ARE ENUMERATED
WITH PARTICULARITY.  THEIR TENURE AND COMPENSATION, THE CONTROVERSIES
WHICH MAY BE BROUGHT BEFORE THEM, AND THE DISTRIBUTION OF ORIGINAL AND
APPELLATE JURISDICTION AMONG THESE TRIBUNALS ARE DEFINED AND
CIRCUMSCRIBED, NOT LEFT AT LARGE BY VAGUE AND ELASTIC PHRASING.  THE
PRECISION WHICH CHARACTERIZES THESE PORTIONS OF ARTICLE III IS IN
STRIKING CONTRAST TO THE IMPRECISION OF SO MANY OTHER PROVISIONS OF THE
CONSTITUTION DEALING WITH OTHER VERY VITAL ASPECTS OF GOVERNMENT.  THIS
WAS NOT DUE TO CHANCE OR INEPTITUDE ON THE PART OF THE FRAMERS.  THE
DIFFERENCES IN SUBJECT-MATTER ACCOUNT FOR THE DRASTIC DIFFERENCES IN
TREATMENT.  GREAT CONCEPTS LIKE "COMMERCE  ...  AMONG THE SEVERAL
STATES," "DUE PROCESS OF LAW," "LIBERTY," "PROPERTY" WERE PURPOSELY
LEFT TO GATHER MEANING FROM EXPERIENCE.  FOR THEY RELATE TO THE WHOLE
DOMAIN OF SOCIAL AND ECONOMIC FACT, AND THE STATESMEN WHO FOUNDED THIS
NATION KNEW TOO WELL THAT ONLY A STAGNANT SOCIETY REMAINS UNCHANGED. 
BUT WHEN THE CONSTITUTION IN TURN GIVES STRICT DEFINITION OF POWER OR
SPECIFIC LIMITATIONS UPON IT WE CANNOT EXTEND THE DEFINITION OR REMOVE
THE TRANSLATION.  PRECISELY BECAUSE "IT IS A CONSTITUTION WE ARE
EXPOUNDING," M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 407, WE OUGHT NOT TO
TAKE LIBERTIES WITH IT. 

THERE WAS DEEP DISTRUST OF A FEDERAL JUDICIAL SYSTEM, AS AGAINST THE
STATE JUDICIARIES, IN THE CONSTITUTIONAL CONVENTION.  THIS DISTRUST WAS
REFLECTED IN THE EVOLUTION OF ARTICLE III.  FN1 MOREOVER, WHEN THEY
DEALT WITH THE DISTRIBUTION OF JUDICIAL POWER AS BETWEEN THE COURTS OF
THE STATES AND THE COURTS OF THE UNITED STATES, THE FRAMERS WERE
DEALING WITH A TECHNICAL SUBJECT IN A PROFESSIONAL WAY.  MORE THAN
THAT, SINCE THE JUDGES OF THE COURTS FOR WHICH ARTICLE III MADE
PROVISION NOT ONLY HAD THE LAST WORD (APART FROM AMENDING THE
CONSTITUTION) BUT ALSO ENJOYED LIFE TENURE, IT WAS AN ESSENTIAL
SAFEGUARD AGAINST CONTROL BY THE JUDICIARY OF ITS OWN JURISDICTION, TO
DEFINE THE JURISDICTION OF THOSE COURTS WITH PARTICULARITY.  THE
FRAMERS GUARDED AGAINST THE SELF-WILL OF THE COURTS AS WELL AS AGINST
THE WILL OF CONGRESS BY MARKING WITH EXACTITUDE THE OUTER LIMITS OF
FEDERAL JUDICIAL POWER. 

ACCORDING TO ARTICLE III, ONLY "JUDICIAL POWER" CAN BE "VESTED" IN
THE COURTS ESTABLISHED UNDER IT.  AT LEAST THIS LIMITATION, WHICH HAS
BEEN THE LAW OF THE LAND SINCE 1792, HAYBURN'S CASE, 2 DALL.  409, IS
NOT YET CALLED INTO QUESTION.  AND SO THE PRESIDENT COULD NOT TODAY
ELICIT THIS COURT'S VIEWS ON TICKLISH PROBLEMS OF INTERNATIONAL LAW ANY
MORE THAN WASHINGTON WAS ABLE TO DO IN 1793.  SEE THE EXCHANGE BETWEEN
SECRETARY OF STATE JEFFERSON AND CHIEF JUSTICE JAY IN 3 JOHNSTON,
CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY, 486-89(1891), AND 10
SPARKS, WRITINGS OF GEORGE WASHINGTON, 542-45(1840). 

BUT IF COURTS ESTABLISHED UNDER ARTICLE III CAN EXERCISE WIDER
JURISDICTION THAN THAT DEFINED AND CONFINED BY ARTICLE III, AND IF THEY
ARE AVAILABLE TO EFFECTUATE THE VARIOUS SUBSTANTIVE POWERS OF CONGRESS,
SUCH AS THE POWER TO LEGISLATE FOR THE DISTRICT OF COLUMBIA, WHAT
JUSTIFICATION IS THERE FOR INTERPRETING ARTICLE III AS IMPOSING ONE
RESTRICTION IN THE EXERCISE OF THOSE OTHER POWERS OF THE CONGRESS - THE
RESTRICTION TO THE EXERCISE OF "JUDICIAL POWER" - YET NOT INTERPRETING
IT AS IMPOSING THE RESTRICTIONS THAT ARE MOST EXPLICIT, NAMELY, THE
PARTICULARIZATION OF THE "CASES" TO WHICH "THE JUDICIAL POWER SHALL
EXTEND"? 

IT IS CONCEDED THAT THE CLAIM FOR WHICH ACCESS IS SOUGHT IN THE
DISTRICT COURT FOR MARYLAND, ONE OF THE COURTS ESTABLISHED UNDER
ARTICLE III, IS NOT INCLUDED AMONG THE "CASES" TO WHICH THE JUDICIAL
POWER CAN BE MADE TO EXTEND.  BUT IF THE PRECISE ENUMERATION OF CASES
AS TO WHICH ARTICLE III AUTHORIZED CONGRESS TO GRANT JURISDICTION TO
THE UNITED STATES DISTRICT COURTS DOES NOT PRECLUDE CONGRESS FROM
VESTING THESE COURTS WITH AUTHORITY WHICH ARTICLE III DISALLOWS, BY
WHAT RULE OF REASON IS CONGRESS TO BE PRECLUDED FROM BRINGING TO ITS
AID THE ADVISORY OPINIONS OF THIS COURT OR OF THE COURTS OF APPEALS? 
IN THE EXERCISE OF ITS CONSTITUTIONAL POWER TO REGULATE COMMERCE, TO
ESTABLISH UNIFORM RULES OF NATURALIZATION, TO RAISE AND SUPPORT ARMIES,
OR TO EXECUTE ANY OF THE OTHER POWERS OF CONGRESS THAT ARE NO LESS
VITAL THAN ITS POWER TO LEGISLATE FOR THE DISTRICT OF COLUMBIA, THE
CONGRESS MAY BE GREATLY IN NEED OF INFORMED AND DISINTERESTED LEGAL
ADVICE.  IF CONGRESS MAY GRANT TO THE UNITED STATES DISTRICT COURTS
AUTHORITY TO ACT IN SITUATIONS IN WHICH ARTICLE III DENIES IT, WHY MAY
NOT THIS COURT RESPOND TO CALLS UPON IT BY CONGRESS IF CONFRONTED WITH
THE CONSCIENTIOUS BELIEF OF CONGRESS THAT SUCH A CALL IS MADE UNDER THE
NECESSARY-AND-PROPER CLAUSE IN ORDER TO DEAL WISELY AND EFFECTIVELY
WITH SOME SUBSTANTIVE CONSTITUTIONAL POWER OF CONGRESS?  AGAIN, IF THE
UNITED STATES DISTRICT COURTS ARE NOT LIMITED TO THE JURISDICTION
RIGIDLY DEFINED BY ARTICLE III, WHY IS THE JURISDICTION OF THIS COURT
RESTRICTED TO ORIGINAL JURISDICTION ONLY IN "CASES AFFECTING
AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS, AND THOSE IN WHICH A
STATE SHALL BE PARTY"?  WHY IS NOT CONGRESS JUSTIFIED IN CONFERRING
ORIGINAL JURISDICTION UPON THIS COURT IN LITIGATION INVOLVING THE
EXERCISE OF ITS POWER TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND
PROPER "FOR CARRYING INTO EXECUTION" ITS POWER "TO DECLARE WAR," OR "TO
RAISE AND SUPPORT ARMIES"? 

COURTS SET UP UNDER ARTICLE III TO EXERCISE THE JUDICIAL POWER OF THE
UNITED STATES DO SO EITHER BECAUSE OF THE NATURE OF THE SUBJECT-MATTER
OR BECAUSE OF THE SPECIAL POSITION OF THE PARTIES.  SO FAR AS THE
SUBJECT-MATTER IS CONCERNED, IT EXTENDS TO CASES ARISING UNDER THE
"CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES," AS WELL AS
"TO ALL CASES OF ADMIRALTY AND MARITIME JURISDICTION."  ARTICLE I, SEC.
8, IS AN ENUMERATION OF THE SUBJECTS IN RELATION TO WHICH THE
CONSTITUTION AUTHORIZES CONGRESS TO MAKE LAWS.  ITS EIGHTEEN DIVISIONS
OF LEGISLATIVE POWER ARE THE SOURCES OF FEDERAL RIGHTS AND SANCTIONS. 
LAWS ENACTED UNDER THEM ARE "THE LAWS OF THE UNITED STATES," TO WHICH
THE "JUDICIAL POWER," GRANTED BY ARTICLE III, EXTENDS.  LAWS AFFECTING
REVENUE, WAR, COMMERCE, IMMIGRATION, NATURALIZATION, BANKRUPTCY, AND
THE REST, AS WELL AS THE VAST RANGE OF LAWS AUTHORIZED BY THE
"NECESSARY-AND-PROPER" CLAUSE, ARE THE GENERATING SOURCES OF "ALL
CASES, IN LAW AND EQUITY, ARISING UNDER  ...  THE LAWS OF THE UNITED
STATES," AND THEREFORE COGNIZABLE BY THE COURTS ESTABLISHED UNDER
ARTICLE III.  CONGRESS CAN AUTHORIZE THE MAKING OF CONTRACTS; IT CAN
THEREFORE AUTHORIZE SUIT THEREON IN ANY DISTRICT COURT.  CONGRESS CAN
ESTABLISH POST OFFICES; IT CAN THEREFORE AUTHORIZE SUITS AGAINST THE
UNITED STATES FOR THE NEGLIGENT KILLING OF A CHILD BY A POST-OFFICE
TRUCK. 

INSOFAR AS THE COURTS ESTABLISHED UNDER ARTICLE III CAN ENTERTAIN A
CASE NOT INVOLVING THE CONSTITUTION, THE LAWS OF THE UNITED STATES OR
TREATIES, NOR CONCERNING ADMIRALTY, THEY DO SO BECAUSE OF THE STATUS OF
THE PARTIES, ENUMERATED WITH PARTICULARITY IN ARTICLE III. 

WE ARE HERE CONCERNED WITH THE POWER OF THE FEDERAL COURTS TO
ADJUDICATE MERELY BECAUSE OF THE CITIZENSHIP OF THE PARTIES.  POWER TO
ADJUDICATE BETWEEN CITIZENS OF DIFFERENT STATES, MERELY BECAUSE THEY
ARE CITIZENS OF DIFFERENT STATES, HAS NO RELATION TO ANY SUBSTANTIVE
RIGHTS CREATED BY CONGRESS.  WHEN THE SOLE SOURCE OF THE RIGHT TO BE
ENFORCED IS THE LAW OF A STATE, THE RIGHT TO RESORT TO A FEDERAL COURT
IS RESTRICTED TO "CITIZENS OF DIFFERENT STATES."  THE RIGHT TO ENFORCE
SUCH STATE-CREATED OBLIGATIONS DERIVES ITS SOLE STRENGTH FROM ARTICLE
III.  NO OTHER PROVISION OF THE CONSTITUTION LENDS SUPPORT.  BUT FOR
ARTICLE III, THE JUDICIAL ENFORCEMENT OF RIGHTS WHICH ONLY A STATE, NOT
THE UNITED STATES, CREATES WOULD BE CONFINED TO STATE COURTS.  IT IS
ARTICLE III AND NOTHING OUTSIDE IT THAT AUTHORIZES CONGRESS TO TREAT
FEDERAL COURTS AS "ONLY ANOTHER COURT OF THE STATE," GUARANTY TRUST CO.
V. YORK, 326 U.S. 99, 108, AND ARTICLE III ALLOWS IT TO DO SO ONLY WHEN
THE PARTIES ARE CITIZENS OF DIFFERENT "STATES."  IF CONGRESS, IN ITS
LAW-MAKING POWER OVER THE DISTRICT OF COLUMBIA, CREATED SOME RIGHT FOR
THE INHABITANTS OF THE DISTRICT, IT COULD CHOOSE TO PROVIDE FOR THE
ENFORCEMENT OF THAT RIGHT IN ANY COURT OF THE UNITED STATES, BECAUSE
THE CASE WOULD BE ONE ARISING UNDER "THE LAWS OF THE UNITED STATES." 
BUT HERE THE CONTROVERSY IS ONE ARISING NOT UNDER THE LAWS OF THE
UNITED STATES BUT UNDER THE LAWS OF MARYLAND.  BY THE COMMAND OF THE
CONSTITUTION, THIS MARYLAND-CREATED RIGHT CAN BE ENFORCED IN A FEDERAL
COURT ONLY IF THE CONTROVERSY IS BETWEEN "CITIZENS OF DIFFERENT STATES"
IN RELATION TO THE STATE IN WHICH THE FEDERAL COURT IS SITTING. 

THE DIVERSITY JURISDICTION OF THE FEDERAL COURTS WAS PROBABLY THE
MOST TENUOUSLY FOUNDED AND MOST UNWILLINGLY GRANTED OF ALL THE HEADS OF
FEDERAL JURISDICTION WHICH CONGRESS WAS EMPOWERED BY ARTICLE III TO
CONFER.  IT IS A MATTER OF COMMON KNOWLEDGE THAT THE JURISDICTION OF
THE FEDERAL COURTS BASED MERELY ON DIVERSITY OF CITIZENSHIP HAS BEEN
MORE CONTINUOUSLY UNDER FIRE THAN ANY OTHER.  FN2  INERTIA LARGELY
ACCOUNTS FOR ITS RETENTION.  BY WITHDRAWING THE MERETRICIOUS ADVANTAGES
WHICH DIVERSITY JURISDICTION AFFORDED ONE OF THE PARTIES IN SOME TYPES
OF LITIGATION, ERIE R. CO. V. TOMPKINS, 304 U.S. 64, HAS HAPPILY
ELIMINATED SOME PRACTICAL BUT INDEFENSIBLE REASONS FOR ITS RETENTION. 
AN ACT FOR THE ELIMINATION OF DIVERSITY JURISDICTION COULD FAIRLY BE
CALLED AN ACT FOR THE RELIEF OF THE FEDERAL COURTS.  CONCEDEDLY, NO
GREAT PUBLIC INTEREST OR LIBERTARIAN PRINCIPLE IS AT STAKE IN THE
DESIRE OF A CORPORATION WHICH HAPPENS TO HAVE BEEN CHARTERED IN THE
DISTRICT OF COLUMBIA, TO PURSUE ITS CLAIM AGAINST A CITIZEN OF MARYLAND
IN THE FEDERAL COURT IN MARYLAND ON THE THEORY THAT THE RIGHT OF THIS
ARTIFICIAL CITIZEN OF THE DISTRICT OF COLUMBIA CANNOT BE VINDICATED IN
THE STATE COURTS OF MARYLAND. 

BUT IN ANY EVENT, THE DISLOCATION OF THE CONSTITUTIONAL SCHEME FOR
THE ESTABLISHMENT OF THE FEDERAL JUDICIARY AND THE DISTRIBUTION OF
JURISDICTION AMONG ITS TRIBUNALS SO CAREFULLY FORMULATED IN ARTICLE III
IS TOO HEAVY A PRICE TO PAY FOR WHATEVER ADVANTAGE THERE MAY BE TO A
CITIZEN OF THE DISTRICT, NATURAL OR ARTIFICIAL, TO GO TO A FEDERAL
COURT IN A PARTICULAR STATE INSTEAD OF TO THE STATE COURT IN SUING A
CITIZEN OF THAT STATE.  NOR IS IT MERELY A DISLOCATION FOR THE PURPOSE
OF ACCOMPLISHING A RESULT OF TRIVIAL IMPORTANCE IN THE PRACTICAL
AFFAIRS OF LIFE.  THE PROCESS OF REASONING BY WHICH THIS RESULT IS
REACHED INVITES A USE OF THE FEDERAL COURTS WHICH BREAKS WITH THE WHOLE
HISTORY OF THE FEDERAL JUDICIARY AND DISREGARDS THE WISE POLICY BEHIND
THAT HISTORY.  IT WAS BECAUSE ARTICLE III DEFINES AND CONFINES THE
LIMITS OF JURISDICTION OF THE COURTS WHICH ARE ESTABLISHED UNDER
ARTICLE III THAT THE FIRST COURT OF CLAIMS ACT FELL, GORDON V. UNITED
STATES, 2 WALL.  561, 117 U.S. 697.  AND IT WAS IN OBSERVANCE OF THESE
CONSTITUTIONAL LIMITS THAT THIS COURT HAD TO DECLINE APPELLATE POWERS
SOUGHT TO BE CONFERRED BY THE CONGRESS IN AN EXERCISE OF ITS
LEGISLATIVE POWER OVER THE DISTRICT.  KELLER V. POTOMAC ELECTRIC POWER
CO., 261 U.S. 428. 

TO FIND A SOURCE FOR "THE JUDICIAL POWER," THEREFORE, WHICH MAY BE
EXERCISED BY COURTS ESTABLISHED UNDER ARTICLE III OF THE CONSTITUTION
OUTSIDE THAT ARTICLE WOULD BE TO DISREGARD THE DISTRIBUTION OF POWERS
MADE BY THE CONSTITUTION  FN3.  THE OTHER ALTERNATIVE - TO EXPAND "THE
JUDICIAL POWER" OF ARTICLE III TO INCLUDE A CONTROVERSY BETWEEN A
CITIZEN OF THE DISTRICT OF COLUMBIA AND A CITIZEN OF ONE OF THE STATES
BY VIRTUE OF THE PROVISION EXTENDING "THE JUDICIAL POWER" TO
CONTROVERSIES "BETWEEN CITIZENS OF DIFFERENT STATES" - WOULD DISREGARD
AN EXPLICIT LIMITATION OF ARTICLE III.  FOR A HUNDRED AND FIFTY YEARS
"STATES" AS THERE USED MEANT "STATES" - THE POLITICAL ORGANIZATIONS
THAT FORM THE UNION AND ALONE HAVE POWER TO AMEND THE CONSTITUTION. 
THE WORD DID NOT COVER THE DISTRICT WHICH WAS TO BECOME "THE SEAT OF
THE GOVERNMENT OF THE UNITED STATES," NOR THE "TERRITORY" BELONGING TO
THE UNITED STATES, BOTH OF WHICH THE CONSTITUTION DEALT WITH IN
DIFFERENTIATION FROM THE STATES.  A DECENT RESPECT FOR UNBROKEN HISTORY
SINCE THE COUNTRY'S FOUNDATION, FOR CONTEMPORANEOUS INTERPRETATION BY
THOSE BEST QUALIFIED TO MAKE IT, FOR THE CAPACITY OF THE DISTINGUISHED
LAWYERS AMONG THE FRAMERS TO EXPRESS THEMSELVES WITH PRECISION WHEN
DEALING WITH TECHNICAL MATTERS, UNITE TO ADMONISH AGAINST DISREGARDING
THE EXPLICIT LANGUAGE OF ARTICLE III EXTENDING THE DIVERSITY
JURISDICTION OF THE FEDERAL COURTS "TO CONTROVERSIES  ... BETWEEN
CITIZENS OF DIFFERENT STATES," NOT TO CONTROVERSIES BETWEEN "CITIZENS
OF DIFFERENT STATES, INCLUDING THE DISTRICT AND THE TERRITORY OF THE
UNITED STATES." 

THE FRAMERS, IN MAKING PROVISION IN REGARD TO "STATES," MEANT THE
STATES WHICH SENT THEM AS DELEGATES TO THE PHILADELPHIA CONVENTION AND
THE STATES WHICH WERE TO BE ADMITTED LATER.  IT WAS NOT CONTEMPLATED
THAT THE DISTRICT WHICH WAS TO BECOME THE SEAT OF GOVERNMENT COULD EVER
BECOME A STATE.  MARSHALL HAD NO MEAN SHARE IN SECURING ADOPTION OF THE
CONSTITUTION AND TOOK SPECIAL INTEREST IN THE JUDICIARY ARTICLE.  HE
MERELY GAVE EXPRESSION TO THE COMMON UNDERSTANDING - THE BEST TEST OF
THE MEANING OF WORDS - WHEN HE REJECTED SUMMARILY THE NOTION THAT THE
CITIZENS OF THE DISTRICT ARE INCLUDED AMONG CITIZENS OF "STATES." 

THE VERY SUBJECT-MATTER OF SECS. 1 AND 2 OF ARTICLE III IS TECHNICAL
IN THE ESTEEMED SENSE OF THAT TERM.  THESE SECTIONS DO NOT DEAL WITH
GENERALITIES EXPANDING WITH EXPERIENCE.  PROVISIONS FOR THE
ORGANIZATION OF COURTS AND THEIR JURISDICTION PRESUPPOSE DEFINITENESS
AND PRECISION OF PHRASING.  THESE REQUIREMENTS WERE HEEDED AND MET BY
THOSE WHO WERE CONCERNED WITH FRAMING THE JUDICIARY ARTICLE; WILSON AND
MADISON AND MORRIS AND RUTLEDGE AND SHERMAN WERE LAWYERS OF LEARNING
AND ASTUTENESS.  THE SCOPE OF THE JUDICIAL POWER WITH WHICH THE FEDERAL
COURTS WERE TO BE ENTRUSTED WAS, AS I HAVE SAID, ONE OF THE MOST
SHARPLY DEBATED AND THOROUGHLY CANVASSED SUBJECTS IN INDEPENDENCE
HALL.  WHEN THE FRAMERS FINALLY DECIDED TO EXTEND THE JUDICIAL POWER TO
CONTROVERSIES "BETWEEN CITIZENS OF DIFFERENT STATES," THEY MEANT TO BE
RESTRICTIVE IN THE USE OF THAT TERM.  THEY WERE NOT UNAWARE OF THE FACT
THAT OUTSIDE THE STATES THERE WAS THE NORTHWEST TERRITORY, AND THAT
THERE WAS TO BE A SEAT OF GOVERNMENT.  CONSIDERING THEIR
RESPONSIBILITY, THEIR PROFESSIONAL HABITS, AND THEIR ALERTNESS
REGARDING THE DETAILS OF ARTICLE III, THE PRECISE ENUMERATION OF THE
HEADS OF JURISDICTION MADE BY THE FRAMERS OUGHT TO PRECLUDE THE NOTION
THAT THEY SHARED THE LATITUDINARIAN ATTITUDE OF ALICE IN WONDERLAND
TOWARD LANGUAGE. 

IT IS SUGGESTED THAT OTHER PROVISIONS OF THE CONSTITUTION RELATING TO
"STATES" APPLY TO THE DISTRICT.  IF THE MERE REPETITION OF AN
INACCURACY BEGETS TRUTH, THEN THAT STATEMENT IS TRUE, NOT OTHERWISE. 
DECISIONS CONCERNED WITH THE DISTRICT INVOLVING TRIAL BY JURY IN
CRIMINAL AND CIVIL CASES, FULL FAITH AND CREDIT FOR ITS PROCEEDINGS,
AND THE POWER TO TAX RESIDENTS, REST ON PROVISIONS IN THE CONSTITUTION
NOT LIMITED TO "STATES."  THERE MAY BE A DECISION IN WHICH THE SOURCE
OF RIGHTS OR OBLIGATIONS AFFECTING THE DISTRICT OF COLUMBIA DERIVES
FROM A LEGAL RIGHT RELATING SOLELY TO "STATES" OR A DUTY TO WHICH ONLY
"STATES" MUST BE OBEDIENT.  I KNOW OF NO SUCH CASE. 

OF COURSE EVERY INDULGENCE MUST BE ENTERTAINED IN FAVOR OF
CONSTITUTIONALITY WHEN LEGISLATION OF CONGRESS CAN FAIRLY BE DEEMED AN
EXERCISE OF THE DISCRETION, IN THE FORMULATION OF POLICY, GIVEN TO
CONGRESS BY THE CONSTITUTION.  BUT THE CASES TO WHICH JURISDICTION MAY
BE EXTENDED UNDER ARTICLE III TO THE COURTS ESTABLISHED UNDER IT
PRECLUDE ANY CLAIM OF DISCRETIONARY AUTHORITY TO ADD TO THE CASES
LISTED BY ARTICLE III OR TO CHANGE THE DISTRIBUTION AS BETWEEN ORIGINAL
AND APPELLATE JURISDICTION MADE BY THAT ARTICLE.  CONGRESS NEED NOT
ESTABLISH INFERIOR COURTS; CONGRESS NEED NOT GRANT THE FULL SCOPE OF
JURISDICTION WHICH IT IS EMPOWERED TO VEST IN THEM; CONGRESS NEED NOT
GIVE THIS COURT ANY APPELLATE POWER; IT MAY WITHDRAW APPELLATE
JURISDICTION ONCE CONFERRED AND IT MAY DO SO EVEN WHILE A CASE IS SUB
JUDICE.  EX PARTE MCCARDLE, 7 WALL.  506.  BUT WHEN THE CONSTITUTION
DEFINED THE ULTIMATE LIMITS OF JUDICIAL POWER EXERCISABLE BY COURTS
WHICH DERIVE THEIR SOLE AUTHORITY FROM ARTICLE III, IT IS BEYOND THE
POWER OF CONGRESS TO EXTEND THOSE LIMITS.  IF THERE IS ONE SUBJECT AS
TO WHICH THIS COURT OUGHT NOT TO FEEL INHIBITED IN PASSING ON THE
VALIDITY OF LEGISLATION BY DOUBTS OF ITS OWN COMPETENCE TO JUDGE WHAT
CONGRESS HAS DONE, IT IS LEGISLATION AFFECTING THE JURISDICTION OF THE
FEDERAL COURTS.  WHEN CONGRESS ON A RARE OCCASION THROUGH INADVERTENCE
OR GENEROSITY EXCEEDS THOSE LIMITATIONS, THIS COURT SHOULD NOT GOOD
NATUREDLY IGNORE SUCH A TRANSGRESSION OF CONGRESSIONAL POWERS. 

A SUBSTANTIAL MAJORITY OF THE COURT AGREES THAT EACH OF THE TWO
GROUNDS URGED IN SUPPORT OF THE ATTEMPT BY CONGRESS TO EXTEND DIVERSITY
JURISDICTION TO CASES INVOLVING CITIZENS OF THE DISTRICT OF COLUMBIA
MUST BE REJECTED - BUT NOT THE SAME MAJORITY.  AND SO, CONFLICTING
MINORITIES IN COMBINATION BRING TO PASS A RESULT - PARADOXICAL AS IT
MAY APPEAR - WHICH DIFFERING MAJORITIES OF THE COURT FIND
INSUPPORTABLE. 

FN1  THE STORY OF THE SCOPE OF JURISDICTION OF THE FEDERAL COURTS
DEVISED BY ARTICLE III IS EASILY TRACEABLE THROUGH THE ADMIRABLE INDEX
IN FARRAND, THE RECORDS OF THE FEDERAL CONVENTION (REV. ED., 1937); THE
DATA ARE ASSEMBLED IN PRESCOTT, DRAFTING THE FEDERAL CONSTITUTION, CH.
17(1941); SEE ALSO FRIENDLY, THE HISTORIC BASIS OF DIVERSITY
JURISDICTION, 41 HARV. L. REV. 483(1928). 

FN2  SEE FOR EXAMPLE, HEARINGS AND S. REP. NO. 626, ON S. 3151, 70TH
CONG., 1ST SESS. (1928); S. REP. NO. 691, ON S. 4357, 71ST CONG., 2D
SESS. (1930); S. 937, S. 939, H.R. 10594, H.R. 11508, S. REP. NO. 530
AND S. REP. NO. 701, 72D CONG., 1ST SESS. (1932); HEARINGS ON S. 466,
79TH CONG., 1ST SESS. (1945).  EARLIER ATTACKS ON DIVERSITY
JURISDICTION ARE SUMMARIZED IN FRANKFURTER AND LANDIS, THE BUSINESS OF
THE SUPREME COURT, 90 ET SEQ., 136 ET SEQ. (1928). 

FN3  RELIANCE ON WILLIAMS V. AUSTRIAN, 331 U.S. 642, 657, SEEMS
SINGULARLY INAPPOSITE.  WHEN A PETITION FOR BANKRUPTCY IS FILED, THERE
MAY BE OUTSTANDING CLAIMS BY THE BANKRUPT AGAINST DEBTORS AND BY
CREDITORS AGAINST THE BANKRUPT.  OF COURSE CONGRESS HAS POWER TO
DETERMINE WHETHER ALL SUCH CLAIMS - THOSE FOR, AND THOSE AGAINST, THE
BANKRUPT ESTATE - SHOULD BE ENFORCED THROUGH THE FEDERAL COURTS.  THAT
A PARTICULAR CLAIM DISSOCIATED FROM THE FACT OF BANKRUPTCY WOULD HAVE
TO BE BROUGHT IN A STATE COURT FOR WANT OF ANY GROUND OF FEDERAL
JURISDICTION IS IRRELEVANT.  THIS IS SO BECAUSE IN THE EXERCISE OF ITS
POWER TO "PASS UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES" CONGRESS
MAY DEEM IT DESIRABLE THAT THE FEDERAL COURTS BE UTILIZED FOR ALL THE
CLAIMS THAT PERTAIN TO THE BANKRUPT ESTATE WHETHER IN THE FEDERAL COURT
IN WHICH THE BANKRUPTCY PROCEEDING IS PENDING OR IN A MORE CONVENIENT
FEDERAL COURT.  THE CONGERIES OF CONTROVERSIES THUS BROUGHT INTO BEING
BY REASON OF BANKRUPTCY MAY BE LODGED IN THE FEDERAL COURTS BECAUSE
THEY ARISE UNDER "THE LAWS OF THE UNITED STATES," TO WIT, LAWS
CONCERNING THE "SUBJECT OF BANKRUPTCIES."  IT IS A MATTER OF
CONGRESSIONAL POLICY WHETHER THERE MUST BE A CONCOURSE OF ALL CLAIMS
AFFECTING THE BANKRUPT'S ESTATE IN THE FEDERAL COURT IN WHICH THE
BANKRUPTCY PROCEEDING IS PENDING OR WHETHER AUXILIARY SUITS BE PURSUED
IN OTHER FEDERAL COURTS. 
..END :

















LABOR BOARD V. PITTSBURGH S.S. CO., 337 U.S. 656 


NO. 258.  ARGUED APRIL 19, 1949.  - DECIDED JUNE 20, 1949.  - 167 F.2D
126, REVERSED. 


1.  IN A PROCEEDING UNDER THE WAGNER ACT, 49 STAT. 449, THE NATIONAL
LABOR RELATIONS BOARD ADOPTED A TRIAL EXAMINER'S FINDINGS WITHOUT
SUBSTANTIAL CHANGE, AND ISSUED A CEASE-AND-DESIST ORDER AGAINST AN
EMPLOYER.  THE COURT OF APPEALS, WITHOUT PASSING UPON THE SUFFICIENCY
OF THE EVIDENCE, HELD THAT THE FINDINGS AND THE ORDER WERE INVALIDATED
BY THE TRIAL EXAMINER'S BIAS AS DISCLOSED BY HIS CREDITING BOARD
WITNESSES AND DISCREDITING WITNESSES FOR THE EMPLOYER, AND REFUSED
ENFORCEMENT OF THE ORDER.  HELD:  THE DECISION OF THE COURT OF APPEALS
REFUSING ENFORCEMENT OF THE ORDER, ON THE GROUND OF THE TRIAL
EXAMINER'S BIAS, WAS NOT SUPPORTED BY THE RECORD.  PP. 657-660. 

2.  THE ADMINISTRATIVE PROCEDURE ACT AND THE TAFT-HARTLEY ACT WERE
ENACTED AFTER THE BOARD'S ORDER AND BEFORE THE COURT OF APPEALS'
DECISION.  QUESTIONS AS TO THE APPLICABILITY AND POSSIBLE EFFECT OF
EITHER OR BOTH OF THOSE ACTS WERE APPARENTLY NOT DEALT WITH BY THE
COURT OF APPEALS AND WERE NOT BRIEFED WITH ANY ELABORATION BEFORE THIS
COURT.  HELD:  ALTHOUGH THE EVIDENCE IN THE CASE WAS SUFFICIENT UNDER
THE WAGNER ACT TO SUSTAIN THE BOARD'S FINDINGS AND ORDER, THE CAUSE IS
REMANDED TO THE COURT OF APPEALS FOR CONSIDERATION OF THE APPLICABILITY
AND POSSIBLE EFFECT OF THE ADMINISTRATIVE PROCEDURE ACT AND THE TAFT
HARTLEY ACT, WHICH QUESTIONS SHOULD BE CONSIDERED IN THE FIRST INSTANCE
BY THAT COURT.  PP. 661-662. 

NATIONAL LABOR RELATIONS BOARD V. PITTSBURGH STEAMSHIP CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

A CEASE-AND-DESIST ORDER ISSUED BY THE NATIONAL LABOR RELATIONS BOARD
UNDER THE WAGNER ACT, 69 N.L.R.B. 1395, WAS REFUSED ENFORCEMENT BY THE
COURT OF APPEALS.  167 F.2D 126.  THIS COURT GRANTED CERTIORARI.  335
U.S. 857.  REVERSED AND REMANDED, P. 662. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

IN 1945 THE NATIONAL LABOR RELATIONS BOARD, PETITIONER HERE, ISSUED
ITS COMPLAINT CHARGING RESPONDENT WITH THE COMMISSION OF CERTAIN UNFAIR
LABOR PRACTICES IN THE COURSE OF OPERATING ITS FLEET OF GREAT LAKES
BULK CARGO VESSELS.  AS DEVELOPED AT A HEARING BEFORE A TRIAL EXAMINER,
THE BOARD'S CHARGES WERE IN SUBSTANCE THAT IN 1944 RESPONDENT
INTERFERED WITH ATTEMPTS BY THE NATIONAL MARITIME UNION TO ORGANIZE
RESPONDENT'S SEAMEN, WITH THE PURPOSE AND THE ULTIMATELY ACHIEVED
EFFECT OF CAUSING THE UNION'S REPUDIATION AT A BOARD-SPONSORED
ELECTION.  FN1  SPECIFICALLY, THERE WAS TESTIMONY TENDING TO SHOW THAT
LICENSED PERSONNEL (OFFICERS) ON CERTAIN OF RESPONDENT'S SHIPS BY WORD
AND DEED HAD EXPRESSED TO THEIR UNLICENSED SEAMEN BITTER HOSTILITY TO
THE UNION AND ITS MEMBERS; THAT RESPONDENT'S PRESIDENT, ONE FERBERT,
HAD WRITTEN TWO LETTERS TO EVERY SEAMAN COVERTLY SUGGESTING IN
INACCURATE FASHION THE POSSIBLE DISADVANTAGES OF NMU REPRESENTATION;
AND THAT ONE SHARTLE WAS DISCHARGED FROM RESPONDENT'S EMPLOY FOR
ENGAGING IN UNION ORGANIZATION.  SOME OF THE BOARD'S TESTIMONY,
TENDERED BY UNION WITNESSES, WAS CONTROVERTED BY RESPONDENT'S
WITNESSES; AND RESPONDENT ALSO INTRODUCED TESTIMONY TENDING TO SHOW
THAT IT HAD STRICTLY ENJOINED ITS LICENSED PERSONNEL TO REMAIN WHOLLY
NEUTRAL IN THE WEEKS LEADING UP TO AND INCLUDING THE BOARD ELECTION. 

THE TRIAL EXAMINER CONCLUDED THAT RESPONDENT HAD INTERFERED WITH NMU
ORGANIZATION, IN VIOLATION OF SECS. 7 AND 8(1) OF THE WAGNER ACT, 29
U.S.C. SECS. 157, 158(1), AND HAD FIRED AN EMPLOYEE FOR UNION ACTIVITY,
IN VIOLATION OF SEC. 8(3), 29 U.S.C. SEC. 158(3).  RESPONDENT'S
EXCEPTIONS TO THE TRIAL EXAMINER'S FINDINGS WERE BRIEFED AND ARGUED
BEFORE THE BOARD, IN ACCORDANCE WITH ITS USUAL PROCEDURE.  ON AUGUST
13, 1946, THE BOARD ADOPTED THE TRIAL EXAMINER'S FINDINGS WITHOUT
SUBSTANTIAL CHANGE, AND ISSUED ITS ORDER REQUIRING RESPONDENT TO CEASE
AND DESIST FROM ITS ANTIUNION CONDUCT AND TO REINSTATE THE WRONGFULLY
DISCHARGED SHARTLE WITH FULL SENIORITY AND REIMBURSEMENT FOR LOST
WAGES.  69 N.L.R.B. 1395. 

TWO MONTHS LATER RESPONDENT PETITIONED THE COURT OF APPEALS TO REVIEW
THE BOARD'S ORDER; THE BOARD FILED A COUNTERPETITION FOR ENFORCEMENT OF
THE ORDER.  ON APRIL 5, 1948, THE COURT ANNOUNCED ITS DECISION REFUSING
ENFORCEMENT.  167 F.2D 126.  THE COURT DID NOT DETERMINE WHETHER THE
EVIDENCE, IF CREDITED, WOULD SUPPORT THE FINDINGS.  INSTEAD IT HELD THE
FINDINGS AND THE ORDER BASED THEREON INVALIDATED BY THE LATENT,
PERVASIVE AND UNREMEDIED BIAS OF THE TRIAL EXAMINER - A BIAS FOUND
APPARENT ON THE FACE OF THE RECORD:  "WITHOUT EXCEPTION, WHENEVER THERE
WAS A CONFLICT OF EVIDENCE, THE WITNESSES FOR THE (COMPANY) WERE HELD
TO BE UNTRUSTWORTHY AND THOSE FOR THE UNION RELIABLE.  ...  IT IS
ENOUGH TO SAY THAT THE UNVARYING REPUDIATION OF EVERY WITNESS FOR THE
PETITIONER BECAUSE OF FALSITY, EVASION OR FAINT RECOLLECTION, ALONG
WITH THE CONSISTENT EXALTATION OF EVERY UNION WITNESS AS TRUTHFUL,
FORTHRIGHT AND ACCURATE, DESTROYS COMPLETELY ANY CONFIDENCE THAT MIGHT
OTHERWISE BE PLACED IN THE FINDINGS OF THE TRIAL EXAMINER AND (STAMPS)
THEM AS ARBITRARY.  THE LABOR BOARD HAVING ADOPTED THEM IN TOTO, ITS
BLANKET PRO FORMA FINDINGS ARE IN NO BETTER POSTURE.  ...  WITH DUE
RESPECT FOR THE RULE THAT THE FINDINGS OF THE BOARD ARE BINDING UPON US
IF BASED UPON EVIDENCE, IT BECOMES IMPOSSIBLE TO SUSTAIN AN ORDER UPON
THE ADOPTION OF A TRIAL EXAMINER'S REPORT WHICH, UPON ITS FACE, SO
CLEARLY BEARS THE IMPRINT OF BIAS AND PREJUDICE THAT IT LACKS ALL
SEMBLANCE OF FAIR JUDICIAL DETERMINATION."  167 F.2D AT 128-129.  TO
REVIEW THE COURT'S DETERMINATION, WE GRANTED CERTIORARI.  335 U.S.
857. 

FIRST:  WE ARE CONSTRAINED TO REJECT THE COURT'S CONCLUSION THAT AN
OBJECTIVE FINDER OF FACT COULD NOT RESOLVE ALL FACTUAL CONFLICTS
ARISING IN A LEGAL PROCEEDING IN FAVOR OF ONE LITIGANT.  THE ORDINARY
LAWSUIT, CIVIL OR CRIMINAL, NORMALLY DEPENDS FOR ITS RESOLUTION ON
WHICH VERSION OF THE FACTS IN DISPUTE IS ACCEPTED BY THE TRIER OF
FACT.  WHERE THE NUMBER OF FACTS IN DISPUTE INCREASES, THE ARITHMETICAL
CHANCE OF THEIR UNIFORM RESOLUTION DIMINISHES - BUT IT DOES NOT
DISAPPEAR.  YET IT IS NOT MERE ARITHMETICAL CHANCE WHICH CONTROLS OUR
PRESENT INQUIRY, FOR THE FACTS DISPUTED IN LITIGATION ARE NOT RANDOM
UNKNOWNS IN ISOLATED EQUATIONS - THEY ARE FACETS OF RELATED HUMAN
BEHAVIOR, AND THE CHISELING OF ONE FACET HELPS TO MARK THE BORDERS OF
THE NEXT.  THUS, IN THE DETERMINATION OF LITIGATED FACTS, THE TESTIMONY
OF ONE WHO HAS BEEN FOUND UNRELIABLE AS TO ONE ISSUE MAY PROPERLY BE
ACCORDED LITTLE WEIGHT AS TO THE NEXT.  ACCORDINGLY, TOTAL REJECTION OF
AN OPPOSED VIEW CANNOT OF ITSELF IMPUGN THE INTEGRITY OR COMPETENCE OF
A TRIER OF FACT.  THE GIST OF THE MATTER HAS BEEN PUT WELL BY THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT, SPEAKING THROUGH JUDGE HUTCHESON, IN
GRANTING ENFORCEMENT OF AN NLRB ORDER: 

"THE FACT ALONE  ...  OF WHICH RESPONDENT MAKES SO MUCH, THAT
EXAMINER AND BOARD UNIFORMLY CREDITED THE BOARD'S WITNESSES AND AS
UNIFORMLY DISCREDITED THOSE OF THE RESPONDENT, THOUGH THE BOARD'S
WITNESSES WERE FEW AND THE RESPONDENT'S WITNESSES WERE MANY, WOULD NOT
FURNISH A BASIS FOR A FINDING BY US THAT SUCH A BIAS OR PARTIALITY
EXISTED AND THEREFORE THE HEARINGS WERE UNFAIR.  UNLESS THE CREDITED
EVIDENCE  ...  CARRIES ITS OWN DEATH WOUND, THAT IS, IS INCREDIBLE AND
THEREFORE, CANNOT IN LAW BE CREDITED, AND THE DISCREDITED EVIDENCE  ...
CARRIES ITS OWN IRREFUTABLE TRUTH, THAT IS, IS OF SUCH NATURE THAT IT
CANNOT IN LAW BE DISCREDITED, WE CANNOT DETERMINE THAT TO CREDIT THE
ONE AND DISCREDIT THE OTHER IS AN EVIDENCE OF BIAS."  FN2 

SUFFICE IT TO SAY IN THIS CASE THAT OUR ATTENTION HAS BEEN CALLED TO
NO CREDITED TESTIMONY WHICH "CARRIES ITS OWN DEATH WOUND," AND TO NONE
DISCREDITED WHICH "CARRIES ITS OWN IRREFUTABLE TRUTH."  INDEED, CAREFUL
SCRUTINY OF THE RECORD BELIES THE VIEW THAT THE TRIAL EXAMINER DID IN
FACT BELIEVE ALL UNION TESTIMONY  FN3  OR THAT HE EVEN BELIEVED THE
UNION VERSION OF EVERY DISPUTED FACTUAL ISSUE.  FN4  RATHER, THE
PRINTED TRANSCRIPT SUGGESTS THOUGHTFUL AND DISCRIMINATING EVALUATION OF
THE FACTS. 

SECOND:  A QUESTION REMAINS AS TO THE PROPER DISPOSITION OF THIS
CASE.  IT IS URGED UPON US BY THE BOARD THAT, THERE BEING SUBSTANTIAL
EVIDENCE IN THE RECORD TO SUPPORT THE BOARD'S FINDINGS AND ORDER, WE
SHOULD REMAND THE CASE WITH INSTRUCTIONS TO ENFORCE THE BOARD'S ORDER
WITHOUT FURTHER DELAY.  WITHOUT DOUBTING THE EXISTENCE HERE OF EVIDENCE
SUBSTANTIAL ENOUGH UNDER THE WAGNER ACT, CONSOLIDATED EDISON CO. V.
LABOR BOARD, 305 U.S. 197, 229, TO WARRANT THE BOARD'S FINDINGS, WE ARE
NOT CERTAIN WHETHER THAT STANDARD CONTROLS THIS CASE.  FOR QUESTIONS
HAVE ARISEN WHETHER THE ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, 5
U.S.C. SEC. 1001 ET SEQ., AND THE TAFT-HARTLEY ACT, 61 STAT. 136, 29
U.S.C. (1946 ED., SUPP. I), SEC. 141 ET SEQ., ENACTED BETWEEN ISSUANCE
OF THE BOARD'S ORDER AND THE COURT OF APPEALS' DECISION, ARE APPLICABLE
TO AND, IF APPLICABLE, IN ANY WAY AFFECT BOARD PROCEDURES AND THE SCOPE
OF JUDICIAL REVIEW OF BOARD ORDERS.  THE APPLICABILITY AND POSSIBLE
EFFECT OF EITHER OR BOTH OF THESE STATUTES APPARENTLY WERE NOT DEALT
WITH BY THE COURT OF APPEALS, WHICH NEITHER DISCUSSED THE STATUTES NOR
CITED CASES DISCUSSING THEM; THE STATUTES AND THEIR IMPACT HAVE NOT
BEEN BRIEFED WITH ANY ELABORATION BEFORE THIS COURT.  THESE QUESTIONS
SHOULD BE CONSIDERED IN THE FIRST INSTANCE BY THE COURT OF APPEALS. 
ACCORDINGLY, IN ORDER TO AFFORD SUCH AN OPPORTUNITY, WE REMAND THE
CAUSE TO THE COURT OF APPEALS FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED AND REMANDED. 

FN1  THE QUESTION VOTED ON WAS ACCEPTANCE OF THE NMU AS COLLECTIVE
BARGAINING AGENT:  THE NMU WAS REJECTED BY A VOTE OF 889 TO 720. 

FN2  LABOR BOARD V. ROBBINS TIRE & RUBBER CO., 161 F.2D 798, 800; SEE
LABOR BOARD V. AUBURN FOUNDRY, 119 F.2D 331, 333. 

FN3  THUS, FOR EXAMPLE, THE TRIAL EXAMINER HAD THE FOLLOWING TO SAY
BY WAY OF FOOTNOTE TO HIS INTERMEDIATE REPORT:  "NO ATTEMPT WILL BE
MADE TO DESCRIBE ALL STATEMENTS AND ACTIVITIES CLAIMED BY COUNSEL FOR
THE BOARD TO CONSTITUTE PART OF THE RESPONDENT'S COURSE OF ANTIUNION
CONDUCT.  THUS, NO MENTION IS MADE OF THOSE INCIDENTS WHICH THE
UNDERSIGNED REGARDS AS INSUBSTANTIAL IN CHARACTER OR AS UNSUPPORTED BY
A FAIR PREPONDERANCE OF CREDIBLE EVIDENCE."  69 N.L.R.B. AT 1402, N.
6. 

FN4  IMPORTANT ISSUES OF FACT AROSE, FOR EXAMPLE, OVER WHETHER
RESPONDENT HAD BEEN RESPONSIBLE FOR DISTRIBUTING TO THE UNLICENSED
SEAMEN (1) COPIES OF A SPEECH HOSTILE TO THE NMU DELIVERED BY A MEMBER
OF CONGRESS, (2) COPIES OF A UNION PAMPHLET ENTITLED "NMU FIGHTS JIM
CROW," WHICH THE UNION WISHED TO WITHHOLD FROM CIRCULATION FOR FEAR THE
UNLICENSED SEAMEN WOULD REACT UNFAVORABLY TO A UNION ADVOCATING RACIAL
EQUALITY.  AS TO THESE ISSUES THE TRIAL EXAMINER HAD THE FOLLOWING TO
SAY: "THE RESPONDENT ADMITTED RESPONSIBILITY FOR THE ISSUANCE OF THE
FERBERT LETTERS (SEE TEXT, SUPRA), BUT DENIED THAT IT DISTRIBUTED
COPIES OF THE SPEECH AND PAMPHLET, BOTH OF WHICH, THE RECORD
ESTABLISHES, CAME THROUGH THE MAILS.  THERE IS NO SUBSTANTIAL EVIDENCE
IN THE RECORD SHOWING THAT THE RESPONDENT WAS RESPONSIBLE FOR THE
DISTRIBUTION OF THE SPEECH.  THE JIM CROW PAMPHLET, WHICH SET FORTH THE
UNION'S OPPOSITION TO RACIAL DISCRIMINATION IN EMPLOYMENT, WAS
ADMITTEDLY A PUBLICATION OF THE UNION.  WHILE THERE IS EVIDENCE THAT
THE UNION AND ITS ORGANIZERS DID NOT ISSUE OR USE THAT PAMPHLET AS PART
OF ITS CAMPAIGN TO ORGANIZE THE RESPONDENT'S VESSELS, AND SOME SUPPORT
FOR THE ASSERTION THAT THE RESPONDENT WAS RESPONSIBLE FOR ITS
DISTRIBUTION IS TO BE FOUND IN THE EVIDENCE  ...  SHOWING THE MANNER IN
WHICH THE RESPONDENT'S SUPERVISORY PERSONNEL USED THE PAMPHLET AND ITS
SUBJECT MATTER IN PLAYING UPON THE RACIAL PREJUDICES, ANTAGONISMS AND
FEARS OF THE EMPLOYEES, THE RECORD IS LIKEWISE BARE OF SUBSTANTIAL
EVIDENCE TRACING RESPONSIBILITY FOR ITS DISTRIBUTION TO THE
RESPONDENT.  CONSEQUENTLY, AND IN VIEW OF THE RESPONDENT'S DISCLAIMER
OF RESPONSIBILITY, IT IS FOUND THAT THE RESPONDENT DID NOT CAUSE THE
DISTRIBUTION OF THE PAMPHLET OR THE SPEECH."  69 N.L.R.B. AT 1400. 

MR. JUSTICE JACKSON RESERVES OPINION AS TO THE SUFFICIENCY OF THE
EVIDENCE UNDER THE WAGNER ACT IN VIEW OF THE COURT'S DETERMINATION TO
RETURN THE CASE TO THE COURT OF APPEALS. 
..END :





















INTERSTATE PIPE LINE CO. V. STONE, 337 U.S. 662 


NO. 287.  ARGUED JANUARY 13, 1949.  - DECIDED JUNE 20, 1949.  - 203
MISS.  715, 35 SO.2D 73, AFFIRMED. 


APPELLANT OWNS AND OPERATES PIPE LINES USED TO TRANSPORT OIL FROM
LEASE TANKS TO RAILROAD LOADING RACKS IN MISSISSIPPI.  DELIVERY OF THE
OIL TO APPELLANT BY THE OWNER IS ACCOMPANIED BY INSTRUCTIONS FOR
SHIPPING IT INTERSTATE.  THE OIL IS PUMPED FROM THE LOADING RACKS INTO
RAILROAD TANK CARS; AND, IF NO TANK CARS ARE AVAILABLE, IT IS STORED,
BUT NEVER LONGER THAN A WEEK.  IN THE BILLS OF LADING, WHICH COVERED
ONLY THE RAIL SHIPMENT, THE OWNER IS DESIGNATED AS SHIPPER AND
APPELLANT AS HIS AGENT, AND THE OUT-OF-STATE DESTINATION IS INDICATED. 
MISSISSIPPI LEVIED AGAINST APPELLANT A TAX MEASURED BY APPELLANT'S
RECEIPTS FROM THE TRANSPORTATION OF THE OIL FROM THE LEASE TANKS TO THE
LOADING RACKS.  HELD:  THE TAX DID NOT VIOLATE THE COMMERCE CLAUSE OF
THE FEDERAL CONSTITUTION.  PP. 663-665, 668. 

INTERSTATE OIL PIPE LINE CO. V. STONE, CHAIRMAN STATE TAX COMMISSION. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

A STATE TAX LEVIED AGAINST A PIPE-LINE COMPANY WAS SUSTAINED BY THE
STATE SUPREME COURT AGAINST A CLAIM OF INVALIDITY UNDER THE FEDERAL
CONSTITUTION.  203 MISS.  715, 35 SO.2D 73.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 668. 

MR. JUSTICE RUTLEDGE ANNOUNCED THE JUDGMENT OF THE COURT AND THE
FOLLOWING OPINION, IN WHICH MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND
MR. JUSTICE MURPHY JOIN. 

THIS APPEAL QUESTIONS THE POWER OF MISSISSIPPI, AS AFFECTED BY THE
COMMERCE CLAUSE, TO IMPOSE A TAX MEASURED BY GROSS RECEIPTS FROM THE
OPERATION OF A PIPE LINE WHOLLY WITHIN THE STATE. 

APPELLANT IS A DELAWARE CORPORATION WHICH HAS QUALIFIED TO DO
BUSINESS IN MISSISSIPPI AS A FOREIGN CORPORATION.  IT OWNS AND OPERATES
PIPE LINES WHICH ARE USED TO TRANSPORT OIL FROM LEASE TANKS IN VARIOUS
OIL FIELDS IN MISSISSIPPI TO LOADING RACKS ADJACENT TO RAILROADS
ELSEWHERE IN THE STATE.  FN1  FROM THESE RACKS THE OIL IS PUMPED INTO
RAILROAD TANK CARS FOR SHIPMENT OUTSIDE THE STATE.  IF THERE ARE NO
TANK CARS AVAILABLE THE OIL IS STORED IN TANKS NEAR THE RACKS.  BUT
SUCH DELAYS IN LOADING ARE USUALLY OF SHORT DURATION AND NEVER EXCEED A
WEEK, ACCORDING TO APPELLANT'S UNCONTRADICTED STATEMENT.  WHEN
DELIVERED TO APPELLANT THE OIL IS ACCOMPANIED BY SHIPPING ORDERS FROM
THE PRODUCER OR OWNER DIRECTING THAT THE OIL BE TRANSPORTED TO OUT-OF
STATE DESTINATIONS.  THERE ARE NO REFINERIES IN MISSISSIPPI.  THERE IS
NO THROUGH BILL OF LADING FROM THE POINT OF ORIGIN AT THE FIELDS TO THE
DESTINATION OUTSIDE THE STATE.  APPELLANT SHIPS THE OIL BY RAIL AS
AGENT OF THE OWNER ON BILLS OF LADING SHOWING THE OWNER AS SHIPPER, THE
APPELLANT AS AGENT OF THE SHIPPER, AND INDICATING THE DESTINATION
SPECIFIED IN THE SHIPPING ORDERS ISSUED TO APPELLANT.  APPELLANT IS
PAID BY THE PRODUCER AT THE RATE PER BARREL SPECIFIED IN ITS TARIFF
FN2  FOR TRANSPORTING THE OIL FROM THE GATHERING POINT TO THE RACK, AND
IS PAID AN ADDITIONAL CHARGE FOR LOADING THE OIL IN THE TANK CARS. 

THE CHAIRMAN OF THE MISSISSIPPI STATE TAX COMMISSION, APPELLEE,
LEVIED A TAX AGAINST APPELLANT FOR THE YEARS 1944, 1945 AND THE FIRST
HALF OF 1946, IN THE SUM OF $20,296.36, MEASURED BY APPELLANT'S
RECEIPTS FOR TRANSPORTING OIL FROM THE LEASE TANKS TO THE RAILROAD
LOADING PLATFORMS, PURSUANT TO THE FOLLOWING SECTIONS OF THE
MISSISSIPPI CODE, MISS.  CODE, 1942, ANN., TIT. 40, C. 3, SEC. 10105,
AND SEC. 10109(1948 CUM. SUPP.), WHICH PROVIDE: 

"10105.  ...  THERE IS HEREBY LEVIED AND SHALL BE COLLECTED ANNUAL
PRIVILEGE TAXES, MEASURED BY THE AMOUNT OR VOLUME OF BUSINESS DONE,
AGAINST THE PERSONS, ON ACCOUNT OF THE BUSINESS ACTIVITIES, AND IN THE
AMOUNTS TO BE DETERMINED BY THE APPLICATION OF RATES AGAINST VALUES, OR
GROSS INCOME, OR GROSS PROCEEDS OF SALES, AS THE CASE MAY BE, AS
FOLLOWS (SEE SECTIONS FOLLOWING):" 

"10109.  ...  UPON EVERY PERSON ENGAGING OR CONTINUING WITHIN THIS
STATE IN THE BUSINESS OF OPERATING A PIPE LINE FOR TRANSPORTING FOR
COMPENSATION OR HIRE FROM ONE POINT TO ANOTHER IN THIS STATE OIL OR
NATURAL GAS OR ARTIFICIAL GAS THROUGH PIPES OR CONDUITS IN THIS STATE,
THERE IS LIKEWISE HEREBY LEVIED AND SHALL BE COLLECTED A TAX, ON
ACCOUNT OF THE BUSINESS ENGAGED IN, EQUAL TO TWO PER CENT OF THE GROSS
INCOME OF THE BUSINESS. 

     .         .         .         .  . 

"THERE SHALL BE EXCEPTED FROM THE GROSS INCOME USED IN DETERMINING
THE MEASURE OF THE TAX IMPOSED IN THIS SECTION SO MUCH THEREOF AS IS
DERIVED FROM THE BUSINESS CONDUCTED IN COMMERCE BETWEEN THIS STATE AND
OTHER STATES OF THE UNITED STATES, OR BETWEEN THIS STATE AND FOREIGN
COUNTRIES WHICH THE STATE OF MISSISSIPPI IS PROHIBITED FROM TAXING
UNDER THE CONSTITUTION OF THE UNITED STATES OF AMERICA.  ...  "  FN3 

THE STATE TAX COMMISSION SUSTAINED THE ASSESSMENT.  THE TRIAL COURT
DISMISSED A DECLARATION SEEKING REVIEW OF THE COMMISSION'S ACTION.  THE
SUPREME COURT OF MISSISSIPPI AFFIRMED THAT JUDGMENT, OVERRULING
APPELLANT'S CONTENTION THAT BECAUSE THE TAX WAS LEVIED ON THE PRIVILEGE
OF CONDUCTING AN INTERSTATE BUSINESS AND MEASURED BY GROSS RECEIPTS
THEREFROM THE TAX COULD NOT BE IMPOSED WITHOUT OFFENDING THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION.  203 MISS.  715, 35 SO.2D 73. 

THE STATE SUPREME COURT HELD THAT THE OPERATION OF THESE PIPE LINES
BETWEEN POINTS WITHIN THE STATE WAS INTRASTATE RATHER THAN INTERSTATE
COMMERCE, AND THAT THE TAX WAS THEREFORE "MERELY ON THE PRIVILEGE OF
OPERATING A PIPE LINE WHOLLY WITHIN THIS STATE AS A LOCAL ACTIVITY. 
...  A TAX ON THE PRIVILEGE OF DOING AN INTRASTATE BUSINESS, AND
MEASURED BY A PERCENT OF GROSS INCOME AS A MATTER OF CONVENIENCE."  203
MISS.  AT 732, 35 SO.2D AT 81. 

APPELLANT CONTENDS THAT OPERATION OF THE PIPE LINES BETWEEN POINTS IN
MISSISSIPPI WAS IN FACT INTERSTATE COMMERCE, AND THAT THE TAX WAS
CONSTRUED BY THE SUPREME COURT OF MISSISSIPPI TO BE A TAX ON THE
PRIVILEGE OF OPERATING THE PIPE LINES.  FROM THESE PREMISES, TOGETHER
WITH THE MAJOR PREMISE THAT NO STATE CAN TAX THE PRIVILEGE OF ENGAGING
IN INTERSTATE COMMERCE, APPELLANT CONCLUDES THAT THE TAX MAY NOT
CONSTITUTIONALLY BE IMPOSED. 

WE DO NOT PAUSE TO CONSIDER WHETHER THE BUSINESS OF OPERATING THE
INTRASTATE PIPE LINES IS INTERSTATE COMMERCE, FOR, EVEN IF WE ASSUME
THAT IT IS, MISSISSIPPI HAS POWER TO IMPOSE THE TAX INVOLVED IN THIS
CASE.  FURTHER, WE DO NOT FIND IT NECESSARY TO DISPUTE THAT THE SUPREME
COURT OF MISSISSIPPI CONSTRUED THE STATUTE AS IMPOSING A TAX ON THE
PRIVILEGE OF OPERATING A PIPE LINE WHOLLY WITHIN THE STATE, AND NOT A
TAX SOLELY UPON THE "LOCAL ACTIVITIES OF 'MAINTAINING, KEEPING IN
REPAIR, AND OTHERWISE IN MANNING THE FACILITIES'" SITUATED IN
MISSISSIPPI, MEMPHIS GAS CO. V. STONE, 335 U.S. 80, 92-93, OR UPON THE
GROSS RECEIPTS THEMSELVES, CENTRAL GREYHOUND LINES V. MEALEY, 334 U.S.
653.  WHILE WE ARE OF COURSE BOUND BY THE CONSTRUCTION GIVEN A STATE
STATUTE BY THE HIGHEST COURT OF THE STATE,  FN4  WE ARE CONCERNED WITH
THE PRACTICAL OPERATION OF CHALLENGED STATE TAX STATUTES, NOT WITH
THEIR DESCRIPTIVE LABELS.  FN5 

THE STATUTE IS NOT INVALIDATED BY THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION MERELY BECAUSE, UNLIKE THE STATUTE ATTACKED IN MEMPHIS GAS
CO. V. STONE, SUPRA, IT IMPOSES A "DIRECT" TAX ON THE "PRIVILEGE" OF
ENGAGING IN INTERSTATE COMMERCE.  FN6  ANY NOTIONS TO THE CONTRARY
SHOULD NOT HAVE SURVIVED MAINE V. GRAND TRUNK R. CO., 142 U.S. 217,
WHICH FLATLY RULES THE CASE AT BAR.  THAT CASE SUSTAINED A STATE
STATUTE WHICH IMPOSED UPON AN INTERSTATE RAILROAD CORPORATION "AN
ANNUAL EXCISE TAX (MEASURED BY APPORTIONED GROSS RECEIPTS), FOR THE
PRIVILEGE OF EXERCISING ITS FRANCHISES IN THIS STATE."  FN7  THE GRAND
TRUNK DECISION HAS BEEN APPROVED BY THIS COURT AS RECENTLY AS THE OTHER
CONTROLLING CASE OF CENTRAL GREYHOUND LINES V. MEALEY, SUPRA AT 658,
663, IN WHICH THE COURT PERMITTED NEW YORK TO IMPOSE A TAX ON THE GROSS
RECEIPTS FROM THE OPERATION OF AN INTERSTATE BUS LINE, PROVIDED THAT
TAX WAS APPORTIONED ACCORDING TO MILEAGE TRAVELED WITHIN THE STATE. 
THE MEALEY CASE IS NOT DISTINGUISHED BY SAYING THAT IT INVOLVED ONLY A
TAX ON GROSS RECEIPTS AND NOT A TAX ON INTERSTATE COMMERCE ITSELF, FOR
GROSS RECEIPTS TAXES HAVE LONG BEEN REGARDED AS "DIRECT" IN CASES WHICH
ARE SUPPOSED TO SUPPORT THE PROPOSITION THAT "DIRECT" TAXES ON
INTERSTATE COMMERCE ARE INVALID UNDER THE COMMERCE CLAUSE.  FN8 

SINCE ALL THE ACTIVITIES UPON WHICH THE TAX IS IMPOSED ARE CARRIED ON
IN MISSISSIPPI, THERE IS NO DUE PROCESS OBJECTION TO THE TAX.  FN9  THE
TAX DOES NOT DISCRIMINATE AGAINST INTERSTATE COMMERCE IN FAVOR OF
COMPETING INTRASTATE COMMERCE OF LIKE CHARACTER.  FN10  THE NATURE OF
THE SUBJECT OF TAXATION MAKES APPORTIONMENT UNNECESSARY; THERE IS NO
ATTEMPT TO TAX INTERSTATE ACTIVITY CARRIED ON OUTSIDE MISSISSIPPI'S
BORDERS.  NO OTHER STATE CAN REPEAT THE TAX.  FN11  FOR THESE REASONS
THE COMMERCE CLAUSE DOES NOT INVALIDATE THIS TAX. 

THE JUDGMENT IS AFFIRMED. 

FN1  APPELLANT ALSO GATHERS OIL WHICH IS TRANSPORTED THROUGH THE
MISSISSIPPI PIPE LINES DIRECTLY INTO INTERSTATE TRUNK LINES, THROUGH
WHICH THE OIL IS CARRIED OUTSIDE THE STATE.  MISSISSIPPI HAS NOT
ATTEMPTED TO TAX THE RECEIPTS ATTRIBUTABLE TO SHIPMENTS OF THIS KIND. 

FN2  ALL APPELLANT'S TRANSPORTATION OF OIL IN MISSISSIPPI IS COVERED
BY TARIFFS WHICH ARE PUBLISHED AND FILED WITH THE INTERSTATE COMMERCE
COMMISSION AS REQUIRED BY THE INTERSTATE COMMERCE ACT, AS AMENDED, 49
U.S.C. SECS. 1(1), 1(3), AND 6. 

FN3  OTHER PROVISIONS OF THE MISSISSIPPI CODE NOT HERE INVOLVED
IMPOSE FRANCHISE, NET INCOME AND AD VALOREM PROPERTY TAXES, ALL OF
WHICH APPELLANT PAID FOR THE YEARS INVOLVED.  THIS FACT DOES NOT OF
COURSE PRECLUDE MISSISSIPPI FROM EXACTING A DIFFERENT TAX FOR THE
PROTECTION UPON WHICH ONE OR MORE OF THESE TAXES IS BASED.  E.G.,
MEMPHIS GAS CO. V. STONE, 335 U.S. 80, 85. 

FN4  MINNESOTA V. PROBATE COURT, 309 U.S. 270, 273; GUARANTY TRUST
CO. V. BLODGETT, 287 U.S. 509, 513. 

FN5  INTERNATIONAL HARVESTER CO. V. DEPT. OF TREASURY, 322 U.S. 340,
346, 347; NELSON V. SEARS, ROEBUCK & CO., 312 U.S. 359, 363. 

FN6  SEE CONCURRING OPINION IN FREEMAN V. HEWIT, 329 U.S. 249, 259. 

FN7  NOTHING IN THE GRAND TRUNK OPINION SUGGESTS THE EXPLANATION
HAZARDED BY MR. JUSTICE HOLMES IN GALVESTON, H. & S.A.R. CO. V. TEXAS,
210 U.S. 217, 226, THAT THE TAX IN THE GRAND TRUNK CASE WAS SUSTAINED
ON THE GROUND THAT IT WAS IMPOSED IN LIEU OF AD VALOREM TAXES.  A COPY
OF THE STATUTE REPRINTED IN THE MARGIN OF THE REPORTS DISCLOSES THAT
THE TAX WAS "IN LIEU OF ALL TAXES UPON SUCH RAILROAD, ITS PROPERTY AND
STOCK," EXCEPT THAT CITIES AND TOWNS WERE PERMITTED TO TAX NOT ONLY ALL
BUILDINGS OWNED BY THE RAILROAD BUT ALSO RAILROAD-OWNED "LANDS AND
FIXTURES" OUTSIDE THE RIGHT OF WAY.  142 U.S. 217-218, N. 1. 

FN8  SEE THE CASES DISCUSSED IN WESTERN LIVE STOCK V. BUREAU OF
REVENUE, 303 U.S. 250, 255-257; CONCURRING OPINION IN FREEMAN V. HEWIT,
329 U.S. 249, 264-266.  AS THE CITED DISCUSSIONS POINT OUT, MOST OF THE
CASES INVALIDATING "DIRECT" TAXES ON INTERSTATE COMMERCE ARE EXPLICABLE
ON THE GROUND THAT THE TAXES WERE NOT FAIRLY APPORTIONED.  BUT CF. THE
FOLLOWING CASES, WHICH INVOLVE APPORTIONED FRANCHISE OR PRIVILEGE TAXES
MEASURED BY A STANDARD OTHER THAN GROSS RECEIPTS:  OZARK PIPE LINE
CORP. V. MONIER, 266 U.S. 555; ALPHA PORTLAND CEMENT CO. V.
MASSACHUSETTS, 268 U.S. 203; CF. ANGLO-CHILEAN NITRATE SALES CORP. V.
ALABAMA, 288 U.S. 218. 

FN9  NIPPERT V. RICHMOND, 327 U.S. 416, 423-424; WISCONSIN V. J.C.
PENNEY CO., 311 U.S. 435, 444-445; SEPARATE OPINION IN INTERNATIONAL
HARVESTER CO. V. DEPT. OF TREASURY, 322 U.S. 340, 352-353; CONCURRING
OPINION IN FREEMAN V. HEWIT, 329 U.S. 249, 271; CONCURRING OPINION IN
MEMPHIS GAS CO. V. STONE, 335 U.S. 80, 96. 

FN10  BEST & CO. V. MAXWELL, 311 U.S. 454; HALE V. BIMCO TRADING CO.,
306 U.S. 375; GUY V. BALTIMORE, 100 U.S. 434. 

FN11  CF. GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S. 434, 439-440;
ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 311-312; WESTERN LIVE STOCK V.
BUREAU OF REVENUE, 303 U.S. 250, 255-257. 

MR. JUSTICE BURTON, CONCURRING. 

I JOIN IN THE JUDGMENT OF AFFIRMANCE ANNOUNCED BY THE COURT BUT DO
NOT JOIN IN THE OPINION RENDERED IN SUPPORT OF IT. 

I CONCUR IN THE JUDGMENT SOLELY ON THE GROUND THAT THE TAX IMPOSED BY
THE STATE OF MISSISSIPPI WAS A TAX ON THE PRIVILEGE OF OPERATING A PIPE
LINE FOR TRANSPORTING OIL IN MISSISSIPPI IN INTRASTATE COMMERCE AND
THAT, AS SUCH, IT WAS A VALID TAX.  THE SUPREME COURT OF MISSISSIPPI,
IN THE CASE BELOW, 203 MISS.  715, 35 SO.2D 73, HELD THAT THIS TAX HAD
BEEN AUTHORIZED BY A STATUTE OF THAT STATE, MISS.  CODE ANN. SECS.
10105, 10109(1942), AND, FOR THE REASONS STATED BY THAT COURT, I
BELIEVE THAT NEITHER THE STATUTE NOR THE APPLICATION OF THE TAX IN THE
PRESENT INSTANCE VIOLATED THE CONSTITUTION OF THE UNITED STATES.  ON
THAT BASIS, THERE IS NO ISSUE HERE AS TO THE VALIDITY OF A TAX UPON THE
PRIVILEGE OF TRANSPORTING OIL IN MISSISSIPPI IN INTERSTATE COMMERCE. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
FRANKFURTER AND MR. JUSTICE JACKSON JOIN, DISSENTING. 

MISSISSIPPI'S EFFORT TO COLLECT A PRIVILEGE TAX FROM THIS APPELLANT
FOR "OPERATING A PIPE LINE" IS UPHELD BY THIS COURT THROUGH TWO
SEPARATELY EXPRESSED THEORIES.  ONE, THAT THE ACTIVITIES TAXED ARE
WHOLLY INTRASTATE; AND THE OTHER, THAT EVEN THOUGH THE PRIVILEGE TAXED
IS FOR THE CARRYING ON OF WHOLLY INTERSTATE OPERATIONS, SUCH A
PRIVILEGE TAX IS PERMISSIBLE.  AS EACH THEORY MAY HAVE EFFECT FAR
BEYOND THIS PARTICULAR CASE, WE THINK IT ADVISABLE TO STATE THE REASONS
FOR OUR DISAGREEMENT WITH BOTH. 

THE TAX WHICH MISSISSIPPI DEMANDED, AND WHICH APPELLANT IS NOW TRYING
TO RECOVER, WAS COMPUTED ONLY UPON APPELLANT'S RECEIPTS AS A COMMON
CARRIER FOR TRANSPORTING OIL FROM THE LEASE TANKS TO THE RAILROAD
LOADING PLATFORMS WITHIN THE STATE.  THE SUPREME COURT OF MISSISSIPPI
UPHELD THIS TAX ON THE GROUND THAT THE ACTIVITY PRODUCING THE RECEIPTS
WAS INTRA- RATHER THAN INTERSTATE COMMERCE.  AT ONE POINT IN ITS
OPINION, THE SUPREME COURT OF MISSISSIPPI SAID THAT THE TAX "HAD BEEN
COLLECTED FOR THE PRIVILEGE OF OPERATING THE PUMPING MACHINERY AND
OTHER PIPE LINE EQUIPMENT IN THE TRANSPORTATION OF OIL IN THE MANNER
HEREINBEFORE SET FORTH  ...  "  INTERSTATE OIL PIPE LINE CO. V. STONE,
203 MISS.  715, 723, 35 SO.2D 73, 75.  SEE AN OPINION OF THREE MEMBERS
OF THIS COURT IN MEMPHIS NATURAL GAS CO. V. STONE, 335 U.S. 80.  THE
THUS DIFFERS WIDELY FROM THE STATUTE UNDER CONSIDERATION IN THE MEMPHIS
CASE WITH ITS DEFINITION OF "DOING BUSINESS."  SEE STONE V. MEMPHIS
NATURAL GAS CO., 201 MISS.  670, 674-675, 29 SO.2D 268, 270.  SINCE
THIS STATUTE DID NOT APPLY TO PIPE LINES REACHING ACROSS THE STATE
LINE, WE CONCLUDE THAT THE STATE SUPREME COURT DID NOT MEAN BY THESE
WORDS TO INDICATE THAT THE PRIVILEGE TAX OF SEC. 10109 FOR "OPERATING A
PIPE LINE" WAS FOR THE PRIVILEGE OF OPERATING PUMPING MACHINERY OR
OTHER EQUIPMENT AS INCIDENTS APART FROM THE FLOW OF THE INTERSTATE
COMMERCE.  CF. COVERDALE V. PIPE LINE CO., 303 U.S. 604.  SUCH AN
INTERPRETATION WOULD BE INCONSISTENT WITH THE NONLIABILITY FOR THE TAX
OF PIPE LINES, ADMITTEDLY DOING AN INTERSTATE BUSINESS.  THE TAX, IT
SAID, WAS "MERELY ON THE PRIVILEGE OF OPERATING A PIPE LINE WHOLLY
WITHIN THIS STATE AS A LOCAL ACTIVITY.  ...  A TAX ON THE PRIVILEGE OF
DOING AN INTRASTATE BUSINESS, AND MEASURED BY A PERCENT OF GROSS INCOME
AS A MATTER OF CONVENIENCE."  203 MISS.  AT 732, 35 SO.2D AT 81.  THE
OPINION EMPHASIZES THAT IN THE VIEW OF THE STATE COURT IT IS THE
INTRASTATE CHARACTER OF THE TRANSPORTATION THAT MAKES IT PERMISSIBLE TO
CHARGE THE APPELLANT A TAX FOR THE PRIVILEGE OF "ENGAGING  ...  IN THE
BUSINESS OF OPERATING A PIPE LINE."  MISS.  CODE, 1942, ANN. (1948 CUM.
SUPP.) SEC. 10109.  FN1  IT CONSIDERED TAXABILITY OF THE TRANSPORTATION
IN THE LIGHT OF COE V. ERROL, 116 U.S. 517, AND CHAMPLAIN CO. V.
BRATTLEBORO, 260 U.S. 366. 

FIRST.  FROM THE FACTS, SECS. 10105 AND 10109 OF THE STATUTE, AND THE
OPINION OF THE SUPREME COURT OF MISSISSIPPI, WE BELIEVE THAT THIS
STATUTE WAS DETERMINED BY THE STATE TO IMPOSE A PRIVILEGE TAX FOR
CARRYING ON THE INTRASTATE BUSINESS OF COMMON CARRIER OF OIL IN
MISSISSIPPI AND THAT THE AMOUNT OF THAT PRIVILEGE TAX WAS TO BE
DETERMINED BY A MEASURE - TWO PERCENT OF THE GROSS INCOME - OF THAT
INTRASTATE BUSINESS.  MISSISSIPPI'S INTERPRETATION OF THE MEANING OF
ITS STATUTE IS BINDING ON THIS COURT.  FN2  A FEDERAL QUESTION AT ONCE
EMERGES - WHETHER THE SHIPMENT OF THE OIL FROM THE GATHERING POINT TO
THE RAILROAD LOADING RACKS, BOTH POINTS BEING IN MISSISSIPPI, IS INTRA-
OR INTERSTATE TRANSPORTATION.  THIS WE DECIDE FOR OURSELVES FROM THE
UNDISPUTED FACTS IN THIS RECORD.  FN3  OUR FIRST INQUIRY THEN MUST BE
AS TO WHETHER THE TRANSPORTATION OF THIS OIL, WHOLLY WITHIN MISSISSIPPI
FROM ORIGIN TO RAILROAD LOADING RACKS, IS IN INTERSTATE OR INTRASTATE
COMMERCE.  FN4 

IN THE ABSENCE OF A RULE WRITTEN INTO THE CONSTITUTION OR ENACTED BY
CONGRESS TO DETERMINE WHAT TRANSPORTATION IS INTERSTATE AND WHAT
INTRASTATE, THE COURTS HAVE BEEN REQUIRED TO DETERMINE THE CHARACTER OF
THE TRANSPORTATION, CASE BY CASE, AS IT BECAME NECESSARY TO REACH A
JUDICIAL CONCLUSION.  IT WAS DECIDED YEARS AGO IN THE DANIEL BALL, 10
WALL.  557, AS TO NAVIGATION ON A WATERWAY WITHIN A SINGLE STATE,
DISCONNECTED FROM ANY OTHER TRANSPORTATION SYSTEM LEADING TO OR FROM
OTHER STATES, THAT THE CARRIAGE OF FREIGHT DESTINED FOR OR RECEIVED
FROM PLACES OUTSIDE THE STATE OF NAVIGATION WAS INTERSTATE COMMERCE AND
MADE THE BOAT SUBJECT TO REGULATION BY CONGRESS.  FN5  THE WORDING OF A
JUDICIAL DECLARATION OF THE PRECISE LINE THAT MARKS THE CHANGE FROM
INTRASTATE MOVEMENT TO INTERSTATE MOVEMENT HAS BEEN DIFFICULT.  IN COE
V. ERROL, 116 U.S. 517, A CASE THAT DEALT WITH THE TAXABILITY BY NEW
HAMPSHIRE OF LOGS MOVED FROM HER FORESTS TO A PLACE OF SHIPMENT IN
READINESS FOR OUT-OF-STATE TRANSPORTATION AT THE CONVENIENCE OF THE
OWNER, THIS COURT HELD THE LOGS TAXABLE.  THE THEORY WAS THAT THE FIRST
MOVEMENT WAS PRELIMINARY TO THE INTERSTATE TRANSPORTATION,  FN6
BECAUSE OF THE DELIBERATE DETENTION TO AWAIT A SUITABLE TIME FOR
SHIPMENT ACROSS A STATE LINE.  KELLEY V. RHOADS, 188 U.S. 1, 6.  BUT
WHERE THERE WAS NO INTENTIONAL DELAY, ONLY THE USE OF A "HARBOR OF
REFUGE," THE INTERSTATE TRANSPORTATION BY FLOTAGE BEGAN WHEN THE LOGS
WERE PUT INTO THE WATER.  CHAMPLAIN CO. V. BRATTLEBORO, 260 U.S. 366. 
FN7  INCIDENTAL DEALINGS WITH THE MOVING COMMODITY DO NOT BREAK THE
INTERSTATE JOURNEY N8.  RECENTLY WE HAVE CONSIDERED THE EFFECT OF
"SPLIT" MEANS OF TRANSPORTATION AS TO WHETHER THE TRANSPORTATION WAS
INTERSTATE.  UNITED STATES V. CAPITAL TRANSIT CO., 325 U.S. 357, 363. 
THERE A TRAVELER WENT FROM THE DISTRICT OF COLUMBIA VIA STREETCAR OR
BUS TO A BUS TERMINAL AND FROM THERE BY A DIFFERENT BUS TO NEARBY
VIRGINIA.  WE HELD THIS TO BE INTERSTATE TRANSPORTATION.  FN9 

COMMENT SHOULD BE MADE AS TO SEVERAL PRECEDENTS THAT MIGHT BE THOUGHT
CONTRARY TO THE RATHER DEFINITE LINE MARKING THE BEGINNING OF
INTERSTATE COMMERCE THAT APPEARS IN THE ABOVE CASES.  THESE ARE THE SO
CALLED CASUAL OR INCIDENTAL MOVEMENTS OF TRANSPORTATION WHOLLY WITHIN A
SINGLE STATE IMMEDIATELY PRECEDING OR FOLLOWING RECOGNIZED INTERSTATE
TRANSPORTATION.  THEY WERE REFERRED TO IN COE V. ERROL, SUPRA, AS
HAULAGE PRELIMINARY TO CONSIGNMENT TO INTERSTATE CARRIERS.  THIS
INVOLVES THE VEHICLES THAT CARRY PASSENGERS OR FREIGHT TO OR FROM
TERMINALS IN THEIR INTERSTATE MOVEMENT.  FN10  AN INTERSTATE JOURNEY
MUST HAVE A BEGINNING AND AN END.  COMMON SENSE REJECTS AN EXTENSION OF
THE JOURNEY TO THE TRAVELER'S FRONT DOOR OR THE PRODUCER'S FARM OR
FACTORY WHEN NO THROUGH ORDER FOR CARRIAGE IS IN EFFECT.  THE EXACT
LIMITS OF INTERSTATE COMMERCE IN SUCH FRINGE SITUATIONS ARE UNCERTAIN. 
FN11 

WE ARE OF THE VIEW, HOWEVER, THAT THE REACH OF INTERSTATE COMMERCE
GOES TO THE DELIVERY TO INTERSTATE, A COMMON CARRIER, OF THE OIL BY THE
PRODUCER WITH HIS TENDER OF SHIPMENT.  THAT OFFER, WHEN ACCEPTED, BY
ITS FORM IS AN ORDER COVERING THE AMOUNT OF OIL, ORIGIN AND OUT-OF
STATE DESTINATION, AND THE ROUTE AND TARIFF UNDER WHICH SHIPMENT IS
MADE.  THE COMMODITY HAS BEEN PLACED IN THE STREAM OF COMMERCE AND WILL
CROSS STATE LINES IN THE REGULAR COURSE OF BUSINESS.  WE HAVE HELD THAT
SHIPPING INSTRUCTIONS, GIVEN TO A FREIGHT CONDUCTOR ON A COMMON CARRIER
PRIOR TO ANY MOVEMENT, PUT A CAR INTO INTERSTATE COMMERCE  FN12  WHEN
THE INSTRUCTIONS WERE FOR SHIPMENT TO AN OUT-OF-STATE DESTINATION AFTER
A PRELIMINARY TRANSIT BETWEEN POINTS IN THE STATE OF LOADING.  WHEN A
SHIPPER DELIVERS HIS COMMODITY TO A COMMON CARRIER WITH INSTRUCTIONS
FOR BILLING BY SUCH CARRIER WITHOUT PURPOSEFUL DELAY VIA ANOTHER OR
OTHER COMMON CARRIERS TO AN OUT-OF-STATE DESTINATION, WE THINK
INTERSTATE COMMERCE HAS BEGUN.  SUCH AN APPLICATION OF THE COMMERCE
CLAUSE TO TRANSPORTATION ACCORDS WITH THAT GIVEN TO REGULATION OF OTHER
PHASES OF INTERSTATE COMMERCE.  FN13  THE ABSENCE OF A THROUGH BILL OF
LADING IS NOT SIGNIFICANT.  IT IS TRUE THAT THE SHIPMENT MIGHT BE
DIVERTED TO AN INTRASTATE DESTINATION WITHOUT CROSSING A STATE LINE BUT
THAT CANNOT CHANGE THE CHARACTER OF THE COMMERCE UNTIL SUCH DIVERSION
ORDER IS GIVEN.  THE MOVEMENT IN COMMERCE HAS BEGUN BY THE ORDER AND
THE DELIVERY AND CONTINUES UNTIL THE COMMODITY IS RESTORED TO THE MASS
OF PROPERTY WITHIN A STATE BY THE TERMINATION OF THE TRANSPORTATION. 
SEE JOY OIL CO. V. STATE TAX COMMISSION, 337 U.S. 286. 

SECOND.  MISSISSIPPI DETERMINED THAT THIS TAX WAS A PRIVILEGE TAX FOR
CARRYING ON THE INTRASTATE BUSINESS OF COMMON CARRIER OF OIL IN
MISSISSIPPI, MEASURED BY A PERCENTAGE OF THE INCOME FROM THAT
BUSINESS.  THE PRECEDING SUBDIVISION OF THIS OPINION EXPOUNDS THE
ARGUMENTS FOR OUR CONCLUSION THAT ALL THE BUSINESS OF APPELLANT IN
OPERATING A PIPE LINE FOR TRANSPORTING OIL COMMITTED TO MOVE OUT-OF
STATE FROM ONE POINT TO ANOTHER IN MISSISSIPPI IS INTERSTATE
TRANSPORTATION.  THE STATUTE IN QUESTION WAS INTERPRETED BY MISSISSIPPI
AS LAYING A TAX SOLELY UPON THAT BUSINESS OF TRANSPORTING OIL, NOT UPON
THE "LOCAL ACTIVITIES OF 'MAINTAINING, KEEPING IN REPAIR, AND OTHERWISE
IN MANNING THE FACILITIES'" SUCH AS ARE DISCUSSED IN THE OPINIONS IN
THE UNDECISIVE CASE OF MEMPHIS GAS CO. V. STONE, 335 U.S. 80, AT 92
93. 

AN OPINION HAS BEEN FILED IN THIS CASE, ASSERTING THAT THE
MISSISSIPPI TAX COULD BE COLLECTED FROM THE PETITIONER NOTWITHSTANDING
THAT ITS ENTIRE BUSINESS IS INTERSTATE COMMERCE.  WITH THAT CONCLUSION
WE DISAGREE. 

SINCE APPELLANT DOES ONLY AN INTERSTATE TRANSPORTATION BUSINESS, THE
PRIVILEGE TAX EXACTED BY MISSISSIPPI IS ACTUALLY A PRIVILEGE TAX FOR
CARRYING ON THE INTERSTATE BUSINESS OF COMMON CARRIER OF OIL, MEASURED
BY A PERCENTAGE OF THE GROSS INCOME FROM THAT BUSINESS, APPORTIONED SO
AS TO INCLUDE ONLY INCOME DERIVED FROM THAT PORTION OF THE INTERSTATE
COMMERCE CARRIED ON WHOLLY IN MISSISSIPPI.  THE GROSS RECEIPTS FROM
INTERSTATE COMMERCE ARE THE COSTS OF CARRIAGE FROM POINT OF ORIGIN -
THE FIELD TANKS - TO THE POINT OF DESTINATION - THE OUT-OF-STATE
REFINERY.  AS ONLY THAT PORTION OF THE COSTS COVERING THE CARRIAGE FROM
ORIGIN TO PIPE-LINE LOADING RACKS, BOTH POINTS IN MISSISSIPPI, IS USED
TO MEASURE THE PRIVILEGE TAX, IT IS CLEAR THAT THE INTERSTATE GROSS
RECEIPTS ARE APPORTIONED TO CARRIAGE WHOLLY WITHIN THE STATE.  OUR
ISSUE AT THIS POINT IS WHETHER A PRIVILEGE TAX FOR CARRYING ON A WHOLLY
INTERSTATE TRANSPORTATION BUSINESS MEASURED BY A FAIRLY APPORTIONED
PART OF GROSS RECEIPTS FOR CARRIAGE IN INTERSTATE COMMERCE IS
CONSTITUTIONALLY PERMISSIBLE. 

PHRASED IN TERMS OF A PRIVILEGE FOR CARRYING ON AN INTERSTATE
BUSINESS, SUCH A TAX HISTORICALLY HAS BEEN DEEMED UNCONSTITUTIONAL. 
THE CASES ABOUND IN STATEMENTS TO THE EFFECT THAT THE PRIVILEGE OF
CARRYING ON INTERSTATE COMMERCE ITSELF IS IMMUNE FROM STATE TAXATION. 
THIS IS BECAUSE IT IS A PRIVILEGE BEYOND THE POWER OF A STATE TO
GRANT.  "  ...  IT IS A RIGHT WHICH EVERY CITIZEN OF THE UNITED STATES
(AND EVERY CORPORATION) IS ENTITLED TO EXERCISE UNDER THE CONSTITUTION
AND LAWS OF THE UNITED STATES; ...  "  CRUTCHER V. KENTUCKY, 141 U.S.
47, 57; INTERNATIONAL TEXTBOOK CO. V. PIGG, 217 U.S. 91.  THE CASES
HOLD NOT ONLY THAT A STATE MAY NOT EXACT A TAX AS A CONDITION PRECEDENT
TO THE DOING OF INTERSTATE BUSINESS, BUT ALSO THAT IT MAY NOT LEVY
PRIVILEGE, EXCISE OR FRANCHISE TAXES ON A FOREIGN CORPORATION FOR THE
PRIVILEGE OF CARRYING ON OR THE ACTUAL DOING OF SOLELY INTERSTATE
BUSINESS AFTER ITS ADMISSION TO THE STATE.  FN14  OZARK PIPE LINE CORP.
V. MONIER, 266 U.S. 555; ALPHA PORTLAND CEMENT CO. V. MASSACHUSETTS,
268 U.S. 203.  CF. ANGLO-CHILEAN NITRATE SALES CORP. V. ALABAMA, 288
U.S. 218, IN THE LIGHT OF SOUTHERN GAS CORP. V. ALABAMA, 301 U.S. 148,
153.  FN15  THE DECISIONS IN THESE CASES WERE REACHED IN SPITE OF THE
FACT THAT IN EACH OF THEM THE TAX SOUGHT TO BE LEVIED WAS FAIRLY
MEASURED ACCORDING TO THE CONNECTIONS OF THE CORPORATE TAXPAYER WITH
THE STATE.  THUS IN OZARK THE TAX WAS MEASURED BY A PERCENTAGE OF THE
CAPITAL STOCK AND SURPLUS OF THE CORPORATION EMPLOYED IN BUSINESS IN
THE STATE, THAT PROPORTION BEING DEEMED EMPLOYED WITHIN THE STATE "THAT
ITS PROPERTY AND ASSETS IN THIS STATE BEARS TO ALL ITS PROPERTY AND
ASSETS WHEREVER LOCATED"; IN ALPHA BY A PERCENTAGE OF THE VALUE OF THE
"CORPORATE EXCESS" EMPLOYED WITHIN THE COMMONWEALTH (DETERMINED AS IN
OZARK) AND A PERCENTAGE OF "THAT PART OF ITS NET INCOME  ...  WHICH IS
DERIVED FROM BUSINESS CARRIED ON WITHIN THE COMMONWEALTH" (ALSO
DETERMINED AS IN OZARK); IN ANGLO-CHILEAN BY A PERCENTAGE OF CAPITAL
EMPLOYED IN THE STATE. 

A RECENT PRONOUNCEMENT OF THIS COURT HAS RECOGNIZED THIS LIMITATION
ON STATE POWER.  IN AERO TRANSIT CO. V. COMM'RS, 332 U.S. 495, WE
UPHELD A TAX ON MOTOR CARRIERS ONLY AFTER STRESSING THE FACT THAT THE
TAX WAS "AFFIRMATIVELY LAID FOR THE PRIVILEGE OF USING THE STATE'S
HIGHWAYS" AND WAS NOT IMPOSED UPON "THE PRIVILEGE OF DOING THE
INTERSTATE BUSINESS."  P. 504.  SEE MEMPHIS NATURAL GAS CO. V. STONE,
335 U.S. 80, 88, NOTE 10.  WHERE THE CORPORATE TAXPAYER CONDUCTS
INTRASTATE AS WELL AS INTERSTATE BUSINESS, A FRANCHISE PRIVILEGE OR
EXCISE TAX ON THE FORMER IS OF COURSE PERMISSIBLE.  FN16  WE HAVE
FREQUENTLY UPHELD SUCH A TAX ALTHOUGH IT WAS MEASURED BY PROPERTY OR
RECEIPTS WHICH WERE USED IN OR ATTRIBUTABLE TO INTERSTATE BUSINESS. 
FN17 

THE GROWTH OF COMMERCE THAT IS CARRIED ON IN MORE THAN ONE STATE HAS
BROUGHT RESPONSIBILITIES TO STATES OTHER THAN THE ONE IN WHICH THE
COMMERCE MAY BE SAID TO HAVE ORIGINATED.  PRODUCERS, EITHER DIRECTLY OR
THROUGH MIDDLEMEN AND INDEPENDENT DEALERS, DISTRIBUTE NATURAL
RESOURCES, AGRICULTURAL AND MANUFACTURED PRODUCTS ON A NATION-WIDE
SCALE.  TRANSPORTATION RUNS ACROSS STATE LINES.  ALL STATES ARE CALLED
UPON TO GIVE GOVERNMENTAL SERVICES FOR THIS COMMERCE - SERVICE THAT
COSTS AND SHOULD BE PAID FOR BY THOSE WHO PROFIT FROM ITS MAINTENANCE. 
IN THE ABSENCE OF CONGRESSIONAL DIRECTION AS TO THE TAXATION OF
INTERSTATE COMMERCE, THIS COURT HAS INTERPRETED THE COMMERCE CLAUSE TO
PERMIT STATE NONDISCRIMINATORY TAXATION, FOR THE USE OF STATE
FACILITIES, UPON THE PROPERTY USED IN INTERSTATE COMMERCE, UPON
PRODUCTION FOR COMMERCE AND UPON NET PROCEEDS THEREFROM.  THROUGH SUCH
TAXES, THE STATES MAY EXACT PAYMENT FOR THEIR PROTECTION AND
ENCOURAGEMENT OF COMMERCE.  JOSEPH V. CARTER & WEEKES CO., 330 U.S.
422, 429, AND CASES CITED.  WE HAVE UPHELD A TAX ON GROSS RECEIPTS FROM
INTERSTATE TRANSPORTATION "WHEN APPORTIONED AS TO THE MILEAGE WITHIN
THE STATE."  GREYHOUND LINES V. MEALEY, 334 U.S. 653, 663.  FN18 

NOTWITHSTANDING THE WIDE LATITUDE FOR TAXATION OF INCIDENTS CONNECTED
WITH INTERSTATE COMMERCE, SEE MEMPHIS GAS CO. V. STONE, 335 U.S. 80,
THIS COURT HAS NEVER INTERPRETED THE COMMERCE CLAUSE TO ALLOW A STATE
TAX FOR THE PRIVILEGE OF CARRYING ON INTERSTATE COMMERCE OR ONE UPON
THAT COMMERCE ITSELF.  JOSEPH V. CARTER & WEEKES CO., 330 U.S. 422. 
THIS IS NOT BECAUSE OF THE FINANCIAL BURDEN.  OTHER TAXES MAY EQUALLY
BURDEN THE COMMERCE.  IT IS NOT BECAUSE IN TRANSPORTATION THE SAME
RESULT CANNOT BE OBTAINED BY LEVYING A TAX FOR INTRASTATE ACTIVITIES
MEASURED BY GROSS RECEIPTS APPROPRIATELY APPORTIONED TO THE ACTIVITIES
IN THE STATE.  IT IS BECAUSE THE COMMERCE CLAUSE OF THE CONSTITUTION
DOES NOT LEAVE TO THE STATES ANY POWER TO PERMIT OR REFUSE THE CARRYING
ON OF INTERSTATE COMMERCE.  IT LIKEWISE BARS A STATE FROM TAXING THE
PRIVILEGE OF DOING INTERSTATE COMMERCE OR THE DOING OF INTERSTATE
COMMERCE, WITH OR WITHOUT FAIR APPORTIONMENT EVEN IF NOT
DISCRIMINATORY.    MAINE V. GRAND TRUNK R. CO., COMMENTED UPON IN NOTE
18, IS INAPPOSITE TO THE TAXATION HERE ATTEMPTED BY MISSISSIPPI. 
INTERSTATE DID A WHOLLY INTERSTATE BUSINESS.  GRAND TRUNK, CONCERNING A
TAX ON THE PRIVILEGE OF EXERCISING A FRANCHISE IN MAINE, CAN ONLY BE
RECONCILED WITH THE LATER CASES COMMENTED UPON AT NOTE 15 IF GRAND
TRUNK DID AN INTRASTATE AS WELL AS AN INTERSTATE BUSINESS.  A STATE
FRANCHISE TAX FOR THAT IS PERMISSIBLE.  SEE NOTES 16 AND 17, SUPRA.
THE METHOD OF APPORTIONMENT EMPLOYED IN THE GRAND TRUNK CASE HAS HAD
APPROVAL AS RECENTLY AS THE GREYHOUND CASE, 334 U.S. AT 663.  THERE WAS
NO APPROVAL OF GRAND TRUNK IN GREYHOUND AS A PRECEDENT FOR A TAX ON THE
PRIVILEGE OF DOING AN INTERSTATE BUSINESS.  SEE P. 658. 

CONTROL OF INTERSTATE COMMERCE PASSED INTO THE HANDS OF CONGRESS AND
THUS WELDED THE FEDERATION INTO A NATION.  SO LONG AS STATES ARE
FORBIDDEN TO IMPOSE TAXES UPON INTERSTATE COMMERCE OR FOR THE PRIVILEGE
OF CARRYING IT ON, A TOLL CANNOT BE EXACTED FROM INTERSTATE COMMERCE
EVEN IF A SIMILAR TAX IS BORNE BY LOCAL COMMERCE.  SO, INTERSTATE
COMMERCE IS NOT SUSCEPTIBLE TO TAXATION, AS SUCH, AND THUS HAS BEEN
PROTECTED AGAINST EXACTIONS AIMED AT IT, NO MATTER HOW
NONDISCRIMINATORY.  IT MAY BE TAXED ONLY UNDER ENACTMENTS WHICH
LIKEWISE TAX INTRASTATE COMMERCE FOR LIKE INTRASTATE ACTIVITIES.  IT
GETS NO ADVANTAGE OVER INTRASTATE COMMERCE FROM ANYTHING FURNISHED BY
THE STATE AND PAYS THE STATE NOTHING FOR WHAT THE SATE DOESN'T POSSESS,
THAT IS, THE POWER TO ALLOW INTERSTATE BUSINESS WITHIN ITS BORDERS. 

ALL INTERSTATE COMMERCE THUS HAS FREE ACCESS TO LOCAL MARKETS,
SUBJECT ONLY TO NONDISCRIMINATORY TAXES SUCH AS THE TAX ON APPORTIONED
GROSS RECEIPTS FROM INTRASTATE MILEAGE AS IN CENTRAL GREYHOUND LINES V.
MEALEY, SUPRA, OR THE TAX ON DISCONNECTED LOCAL INCIDENTS AS DISCUSSED
IN THE OPINIONS IN MEMPHIS GAS CO. V. STONE, SUPRA, OR IN INTERNATIONAL
HARVESTER CO. V. EVATT, SUPRA, OR AMERICAN MANUFACTURING CO. V. ST.
LOUIS, 250 U.S. 459.  SO LONG AS A TAX ON THE PRIVILEGE OF DOING
INTERSTATE BUSINESS OR A TAX ON THE DOING OF THAT BUSINESS IS
PROHIBITED, INTERSTATE COMMERCE REMAINS FREE FROM STATE EXACTIONS
LEVIED ON THAT COMMERCE.  YET THAT COMMERCE MUST BEAR, LIKE INTRASTATE
COMMERCE, THE COST OF THOSE FACILITIES OR PROTECTIONS, APART FROM THE
INTERSTATE COMMERCE ITSELF, WHICH THE STATE FURNISHES OR ALLOWS WITHIN
ITS BORDERS.  SUCH HAS BEEN AND IS THE FREEDOM THAT THE COMMERCE CLAUSE
GRANTS TO THOSE ENGAGED IN COMMERCE BETWEEN THE STATES. 

THE JUDGMENT SHOULD BE REVERSED. 

FN1  "HENCE, THE STATUTE WAS DESIGNED ONLY FOR THE PURPOSE OF TAXING
THE PRIVILEGE OF OPERATING A PIPE LINE FOR TRANSPORTING THE OIL FROM
ONE POINT TO ANOTHER IN THE STATE WHERE IT IS THEN DELIVERED TO AN
INTERSTATE CARRIER PRIOR TO THE BEGINNING OF ITS ULTIMATE PASSAGE TO A
FOREIGN STATE IN INTERSTATE COMMERCE.  MOST ASSUREDLY, NO PIPE LINE
COMPANY WOULD BE DEEMED JUSTIFIED IN INSTALLING AN OIL GATHERING SYSTEM
TO TRANSPORT OIL OTHER THAN THAT DESTINED FOR ULTIMATE INTERSTATE
SHIPMENT, THERE BEING NO OIL REFINERIES HERE."  203 MISS.  AT 729, 35
SO.2D AT 77. 

FN2  SOUTHERN GAS CORP. V. ALABAMA, 301 U.S. 148, 153; CF. AERO
TRANSIT CO. V. COMM'RS, 332 U.S. 495, 499.  SUCH DETERMINATION MAY BE
REJECTED ONLY IF A PALPABLE EVASION FOR AVOIDING A CONTRARY RULING
UNDER FEDERAL LAW.  UNION PAC. R. CO. V. PUBLIC SERVICE COMM'N, 248
U.S. 67; APPLEBY V. CITY OF NEW YORK, 271 U.S. 364, 379; DRIVERS UNION
V. MEADOWMOOR DAIRIES, 312 U.S. 287, 294. 

FN3  SOUTHERN GAS CORP. V. ALABAMA, SUPRA, AT 154; HOOVEN & ALLISON
CO. V. EVATT, 324 U.S. 652, 658.  SEE CALDAROLA V. ECKERT, 332 U.S.
155, 158; STANDARD OIL CO. V. JOHNSON, 316 U.S. 481, 483. 

FN4  THERE IS NO PROBLEM AS TO ANY DIFFERENTIATION BETWEEN "IN"
COMMERCE OR "AFFECTING" COMMERCE.  MISSISSIPPI HAS DECIDED THAT THE
STATUTE APPLIES ONLY TO TRANSPORTATION "IN" INTRASTATE COMMERCE.  203
MISS.  AT 715, 35 SO.2D 73.  CF. SCHECHTER CORP. V. UNITED STATES, 295
U.S. 495, 542; MCLEOD V. THRELKELD, 319 U.S. 491. 

FN5  "SO FAR AS SHE WAS EMPLOYED IN TRANSPORTING GOODS DESTINED FOR
OTHER STATES, OR GOODS BROUGHT FROM WITHOUT THE LIMITS OF MICHIGAN AND
DESTINED TO PLACES WITHIN THAT STATE, SHE WAS ENGAGED IN COMMERCE
BETWEEN THE STATES, AND HOWEVER LIMITED THAT COMMERCE MAY HAVE BEEN,
SHE WAS, SO FAR AS IT WENT, SUBJECT TO THE LEGISLATION OF CONGRESS. 
SHE WAS EMPLOYED AS AN INSTRUMENT OF THAT COMMERCE; FOR WHENEVER A
COMMODITY HAS BEGUN TO MOVE AS AN ARTICLE OF TRADE FROM ONE STATE TO
ANOTHER, COMMERCE IN THAT COMMODITY BETWEEN THE STATES HAS COMMENCED. 
THE FACT THAT SEVERAL DIFFERENT AND INDEPENDENT AGENCIES ARE EMPLOYED
IN TRANSPORTING THE COMMODITY, SOME ACTING ENTIRELY IN ONE STATE, AND
SOME ACTING THROUGH TWO OR MORE STATES, DOES IN NO RESPECT AFFECT THE
CHARACTER OF THE TRANSACTION."  10 WALL.  AT 565. 

FN6  "WHAT WE HAVE ALREADY SAID, HOWEVER, IN RELATION TO THE PRODUCTS
OF A STATE INTENDED FOR EXPORTATION TO ANOTHER STATE WILL INDICATE THE
VIEW WHICH SEEMS TO US THE SOUND ONE ON THAT SUBJECT, NAMELY, THAT SUCH
GOODS DO NOT CEASE TO BE PART OF THE GENERAL MASS OF PROPERTY IN THE
STATE, SUBJECT, AS SUCH, TO ITS JURISDICTION, AND TO TAXATION IN THE
USUAL WAY, UNTIL THEY HAVE BEEN SHIPPED, OR ENTERED WITH A COMMON
CARRIER FOR TRANSPORTATION TO ANOTHER STATE, OR HAVE BEEN STARTED UPON
SUCH TRANSPORTATION IN A CONTINUOUS ROUTE OR JOURNEY.  ...  BUT THIS
MOVEMENT DOES NOT BEGIN UNTIL THE ARTICLES HAVE BEEN SHIPPED OR STARTED
FOR TRANSPORTATION FROM THE ONE STATE TO THE OTHER.  THE CARRYING OF
THEM IN CARTS OR OTHER VEHICLES, OR EVEN FLOATING THEM, TO THE DEPOT
WHERE THE JOURNEY IS TO COMMENCE IS NO PART OF THAT JOURNEY.  THAT IS
ALL PRELIMINARY WORK, PERFORMED FOR THE PURPOSE OF PUTTING THE PROPERTY
IN A STATE OF PREPARATION AND READINESS FOR TRANSPORTATION.  UNTIL
ACTUALLY LAUNCHED ON ITS WAY TO ANOTHER STATE, OR COMMITTED TO A COMMON
CARRIER FOR TRANSPORTATION TO SUCH STATE, ITS DESTINATION IS NOT FIXED
AND CERTAIN.  IT MAY BE SOLD OR OTHERWISE DISPOSED OF WITHIN THE STATE,
AND NEVER PUT IN COURSE OF TRANSPORTATION OUT OF THE STATE.  CARRYING
IT FROM THE FARM, OR THE FOREST, TO THE DEPOT, IS ONLY AN INTERIOR
MOVEMENT OF THE PROPERTY, ENTIRELY WITHIN THE STATE, FOR THE PURPOSE,
IT IS TRUE, BUT ONLY FOR THE PURPOSE, OF PUTTING IT INTO A COURSE OF
EXPORTATION; IT IS NO PART OF THE EXPORTATION ITSELF.  UNTIL SHIPPED OR
STARTED ON ITS FINAL JOURNEY OUT OF THE STATE ITS EXPORTATION IS A
MATTER ALTOGETHER IN FIERI, AND NOT AT ALL A FIXED AND CERTAIN THING." 
116 U.S. AT 527-28. 

FN7  "THE INTERSTATE COMMERCE CLAUSE OF THE CONSTITUTION DOES NOT
GIVE IMMUNITY TO MOVABLE PROPERTY FROM LOCAL TAXATION WHICH IS NOT
DISCRIMINATIVE, UNLESS IT IS IN ACTUAL CONTINUOUS TRANSIT IN INTERSTATE
COMMERCE.  WHEN IT IS SHIPPED BY A COMMON CARRIER FROM ONE STATE TO
ANOTHER, IN THE COURSE OF SUCH AN UNINTERRUPTED JOURNEY IT IS CLEARLY
IMMUNE.  THE DOUBT ARISES WHEN THERE ARE INTERRUPTIONS IN THE JOURNEY
AND WHEN THE PROPERTY IN ITS TRANSPORTATION IS UNDER THE COMPLETE
CONTROL OF THE OWNER DURING THE PASSAGE.  IF THE INTERRUPTIONS ARE ONLY
TO PROMOTE THE SAFE OR CONVENIENT TRANSIT, THEN THE CONTINUITY OF THE
INTERSTATE TRIP IS NOT BROKEN.  ...  IN OTHER WORDS, IN SUCH CASES
INTERSTATE CONTINUITY OF TRANSIT IS TO BE DETERMINED BY A CONSIDERATION
OF THE VARIOUS FACTORS OF THE SITUATION.  CHIEF AMONG THESE ARE THE
INTENTION OF THE OWNER, THE CONTROL HE RETAINS TO CHANGE DESTINATION,
THE AGENCY BY WHICH THE TRANSIT IS EFFECTED, THE ACTUAL CONTINUITY OF
THE TRANSPORTATION, AND THE OCCASION OR PURPOSE OF THE INTERRUPTION
DURING WHICH THE TAX IS SOUGHT TO BE LEVIED."  260 U.S. AT 376-77. 

FN8  STATE TAX COMM'N V. GAS CO., 284 U.S. 41, 43(REDUCTION OF
PRESSURE AND METERING GAS). 

FN9  "AS PREVIOUSLY POINTED OUT, TWICE A DAY MORE THAN 15,000
GOVERNMENT EMPLOYEES TRAVELED BETWEEN THE VIRGINIA AGENCIES AND THEIR
HOMES VIA ONE OF THE FOUR BUS SYSTEMS.  MOST OF THEM EITHER WENT TO OR
FROM THESE BUS TERMINALS FROM OR TO THEIR HOMES OVER ANY OF TRANSIT'S
THEN AVAILABLE BUSES OR STREETCARS.  THEIR TRAVEL WAS AT CERTAIN HOURS
EACH DAY, AT WHICH SPECIAL RUSH HOUR BUSES AND CARS WERE MADE AVAILABLE
FOR THEIR CARRIAGE.  THEIR INTERSTATE JOURNEY TO WORK ACTUALLY BEGAN AT
THE TIME THEY BOARDED A TRANSIT BUS OR STREETCAR NEAR THEIR HOME, AND
ACTUALLY ENDED WHEN THEY ALIGHTED FROM THE VIRGINIA-GOING BUS AT THEIR
PLACE OF WORK.  ON RETURNING FROM WORK THEIR INTERSTATE JOURNEY
ACTUALLY BEGAN WHEN THEY BOARDED A BUS NEAR THEIR WORK AND ACTUALLY
ENDED WHEN THEY ALIGHTED FROM A TRANSIT STREETCAR OR BUS NEAR THEIR
HOME.  TRUE, THEIR INTERSTATE TRIP WAS BROKEN AT THE DISTRICT TERMINI
OF THE VIRGINIA BUSES, WHEN THEY STEPPED FROM ONE VEHICLE TO ANOTHER. 
BUT IN THE COMMONLY ACCEPTED SENSE OF THE TRANSPORTATION CONCEPT, THEIR
ENTIRE TRIP WAS INTERSTATE.  ...  AND THE FACT THAT, EXCEPT AS TO
TRANSIT, THEY PAID A COMBINATION OF TWO RATES, ONE FOR TRAVEL WHOLLY
WITHIN THE DISTRICT, AND THE OTHER FOR TRAVEL BETWEEN THE DISTRICT AND
VIRGINIA, AND THE JOURNEY FROM THEIR RESIDENCES TO VIRGINIA AND BACK
AGAIN WAS TAKEN IN TWO SEGMENTS, DOES NOT MEAN THAT THE TOTAL
INTERSTATE TRIP WAS NOT ON A 'THROUGH ROUTE.'"  325 U.S. AT 363. 

FN10  INTERSTATE COMMERCE COMM'N V. DETROIT, GRAND HAVEN & MILWAUKEE
R. CO., 167 U.S. 633; PENNSYLVANIA R. CO. V. KNIGHT, 192 U.S. 21;
UNITED STATES V. YELLOW CAB CO., 332 U.S. 218. 

FN11  UNITED STATES V. YELLOW CAB CO., SUPRA, AT 232-33; INTERSTATE
COMMERCE COMM'N V. PARKER, 326 U.S. 60, 71, NOTE 6. 

FN12  PHILADELPHIA & READING R. CO. V. HANCOCK, 253 U.S. 284, 285: 

"THE DUTIES OF THE DECEASED NEVER TOOK HIM OUT OF PENNSYLVANIA; THEY
RELATED SOLELY TO TRANSPORTING COAL FROM THE MINES.  WHEN INJURED HE
BELONGED TO A CREW OPERATING A TRAIN OF LOADED CARS FROM LOCUST GAP
COLLIERY TO LOCUST SUMMIT YARD, TWO MILES AWAY.  THE ULTIMATE
DESTINATION OF SOME OF THESE CARS WAS OUTSIDE OF PENNSYLVANIA.  THIS
APPEARED FROM INSTRUCTION CARDS OR MEMORANDA DELIVERED TO THE CONDUCTOR
BY THE SHIPPING CLERK AT THE MINE.  EACH OF THESE REFERRED TO A
PARTICULAR CAR BY NUMBER AND CONTAINED CERTAIN CODE LETTERS INDICATING
THAT SUCH CAR WITH ITS LOAD WOULD MOVE BEYOND THE STATE." 

FN13  DAHNKE-WALKER CO. V. BONDURANT, 257 U.S. 282; LEMKE V. FARMERS
GRAIN CO., 258 U.S. 50; WALLING V. JACKSONVILLE PAPER CO., 317 U.S.
564, 567. 

FN14  SINCE WE PERCEIVE NO DIFFERENCE FOR THE PURPOSES OF THIS CASE
BETWEEN FRANCHISE, PRIVILEGE, AND EXCISE TAXES, INSOFAR AS THEY ARE
EXACTED FOR THE PRIVILEGE OF DOING OR THE DOING OF INTERSTATE BUSINESS,
WE HAVE TREATED THEM AS IDENTICAL AS FAR AS THEIR VALIDITY UNDER THE
COMMERCE CLAUSE IS CONCERNED.  IN OZARK AND ANGLO-CHILEAN NITRATE THE
TAXES WERE CALLED FRANCHISE TAXES; IN ALPHA IT WAS LABELED AN EXCISE
TAX. 

FN15  SEE THE DISCUSSION OF THESE CASES IN THE OPINION OF REED, J.,
IN MEMPHIS GAS CO. V. STONE, 335 U.S. 80.  SEE ALSO NEW YORK EX REL.
PENNSYLVANIA R. CO. V. KNIGHT, 192 U.S. 21, 26; STATE TAX COMM'N V.
INTERSTATE NATURAL GAS CO., 284 U.S. 41, 43. 

FN16  MEMPHIS NATURAL GAS CO. V. BEELER, 315 U.S. 649; FORD MOTOR CO.
V. BEAUCHAMP, 308 U.S. 331; ATLANTIC REFINING CO. V. VIRGINIA, 302 U.S.
22; SOUTHERN NATURAL GAS CORP. V. ALABAMA, 301 U.S. 148; PACIFIC TEL.
CO. V. TAX COMM'N, 297 U.S. 403; SEE COLLECTION OF CASES 105 A.L.R. 11,
36-56. 

FN17  INTERNATIONAL HARVESTER CO. V. EVATT, 329 U.S. 416; ATLANTIC
LUMBER CO. V. COMM'R, 298 U.S. 553; MATSON NAV. CO. V. STATE BD. OF
EQUALIZATION, 297 U.S. 441. 

FN18  THIS DECISION FOLLOWED A PROLONGED CONTROVERSY OVER THE
TAXABILITY OF THE PROCEEDS OF INTERSTATE COMMERCE.  MAINE V. GRAND
TRUNK R. CO., 142 U.S. 217, HAS BEEN CITED FOR THE SAME PROPOSITION,
SEE E.G., ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 329, ALTHOUGH THERE
IS IN THE REPORT OF THE CASE, P. 218, SEC. 2 OF THE ACT THERE IN
QUESTION, SUPPORT FOR MR. JUSTICE HOLMES' TREATMENT OF IT IN GALVESTON,
H. & S.A.R. CO. V. TEXAS, 210 U.S. 217, 226, AS A TAX IN LIEU OF AD
VALOREM TAXES.  SEE JOSEPH V. CARTER & WEEKES CO., 330 U.S. 422, AT
427, NOTES 5, 6 AND 7, AND CASES CITED.  WESTERN LIVE STOCK V. BUREAU,
303 U.S. 250, 255.  POWELL, MORE ADO ABOUT GROSS RECEIPTS TAXES, 60
HARV. L. REV. 501, 710, 747, ET SEQ.; DUNHAM, GROSS RECEIPTS TAXES ON
INTERSTATE TRANSACTIONS, 47 COL. L. REV. 211, 220 ET SEQ.
..END :






















JOY CIL CO. V. STATE TAX COMM'N, 337 U.S. 286 


NO. 223.  ARGUED JANUARY 6-7, 1949.  - DECIDED JUNE 13, 1949.  - 321
MICH. 335, 32 N.W.2D 472, AFFIRMED. 


PETITIONER, A CANADIAN CORPORATION, PURCHASED IN MICHIGAN 1,500,000
GALLONS OF GASOLINE, CERTIFIED THAT IT WAS PURCHASED FOR EXPORT,
SHIPPED IT BY RAIL TO DETROIT UNDER BILLS OF LADING MARKED "FOR EXPORT
TO CANADA," AND PLACED IT IN STORAGE TANKS IN DEARBORN, MICHIGAN. 
FIFTEEN MONTHS LATER, WHEN ONLY 50,000 GALLONS HAD BEEN EXPORTED TO
CANADA, DEARBORN ASSESSED AN AD VALOREM PROPERTY TAX ON THE REMAINING
GASOLINE.  BECAUSE OF A SHORTAGE OF SHIPPING SPACE, IT WAS MORE THAN
EIGHTEEN MONTHS AFTER STORAGE BEFORE ALL OF THE GASOLINE HAD BEEN
EXPORTED TO CANADA.  HELD:  THE TAX WAS NOT IN VIOLATION OF THE EXPORT
IMPORT CLAUSE, ART. I, SEC. 10, CL. 2, OF THE FEDERAL CONSTITUTION. 
PP. 286-289. 

JOY OIL CO., LTD. V. STATE TAX COMMISSION. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

AN AD VALOREM TAX ASSESSED BY A MICHIGAN MUNICIPALITY UPON A CANADIAN
CORPORATION'S STORES OF GASOLINE WAS SUSTAINED BY THE STATE SUPREME
COURT AGAINST A CLAIM OF INVALIDITY UNDER THE EXPORT-IMPORT CLAUSE OF
THE FEDERAL CONSTITUTION.  321 MICH. 335, 32 N.W.2D 472.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 812.  AFFIRMED, P. 289. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 29, 1945, PETITIONER JOY OIL COMPANY, LTD., A CANADIAN
CORPORATION, PURCHASED 1,500,000 GALLONS OF GASOLINE FROM MID-WEST
REFINERIES, INC., OF GRAND RAPIDS, MICHIGAN.  THE BILLS OF LADING
ISSUED BY THE RAILROAD TO WHICH THE GASOLINE WAS DELIVERED WERE MARKED
"FOR EXPORT TO CANADA," BUT THE GASOLINE WAS CONSIGNED TO PETITIONER AT
DETROIT.  IN ORDER TO SECURE THE BENEFITS OF LOWER EXPORT FREIGHT RATES
AND EXEMPTION FROM THE FEDERAL TRANSPORTATION AND MANUFACTURERS' EXCISE
TAXES, PETITIONER FURNISHED MID-WEST REFINERIES AND THE RAILROAD WITH
PRESCRIBED FORMS CERTIFYING THAT THE GASOLINE WAS PURCHASED FOR
EXPORT.  RAIL SHIPMENTS WERE BEGUN IN JANUARY AND COMPLETED IN FEBRUARY
OF 1946.  AS THE GASOLINE REACHED DETROIT IT WAS ACCUMULATED IN STORAGE
TANKS LEASED BY PETITIONER AT DEARBORN. 

ON APRIL 1, 1947, THE CITY OF DEARBORN ASSESSED AN AD VALOREM
PROPERTY TAX ON THE GASOLINE, ALL OF WHICH, EXCEPT 50,000 GALLONS,
SHIPPED TO CANADA BY TRUCK OVER THE AMBASSADOR BRIDGE, HAD THEN BEEN IN
THE DEARBORN TANKS FOR FIFTEEN MONTHS.  SHIPMENT BY TRUCK WAS HALTED BY
A FEDERAL REGULATION PROHIBITING THE TRANSPORTATION OF INFLAMMABLES
OVER ANY INTERNATIONAL BRIDGE, AND PETITIONER APPARENTLY CHOSE NOT TO
SHIP THE GASOLINE BY RAIL ACROSS THE DETROIT RIVER.  IN JULY OF 1947
PETITIONER BEGAN TO SHIP IT TO CANADA BY WATER; THE LAST TANKER LOAD
DEPARTED ON AUGUST 22, 1947.  PETITIONER EXPLAINS THE DELAY AS DUE TO
INABILITY TO OBTAIN SHIPPING SPACE AT ANY EARLIER DATE. 

PETITIONER RESISTED PAYMENT OF THE TAX ON THE GROUND THAT IT
INFRINGED ART. I, SEC. 10, CL. 2, OF THE CONSTITUTION.  THE TAX
COMMISSION OF MICHIGAN SUSTAINED DEARBORN'S ASSESSMENT OF THE TAX, AND
THE SUPREME COURT OF MICHIGAN AFFIRMED.  321 MICH. 335, 32 N.W.2D 472. 
WE GRANTED CERTIORARI BECAUSE THE CASE PRESENTED A SUFFICIENTLY
IMPORTANT QUESTION IN THE ACCOMMODATION OF STATE AND FEDERAL INTERESTS
UNDER THE CONSTITUTION.  335 U.S. 812. 

THE CIRCUMSTANCES WHICH TENDED, AT THE TIME WHEN THE TAX WAS
ASSESSED, TO ESTABLISH PETITIONER'S INTENT TO EXPORT THE GASOLINE AND
THE FACT THAT THE GASOLINE WAS EVENTUALLY EXPORTED ARE NOT ENOUGH, BY
THEMSELVES, TO CONFER IMMUNITY FROM LOCAL TAXATION.  SEE, E.G., CORNELL
V. COYNE, 192 U.S. 418; EMPRESA SIDERURGICA V. COUNTY OF MERCED, 337
U.S. 154.  NOR IS IT ENOUGH THAT BY THE RAIL SHIPMENT TO DETROIT ONE
STEP IN THE PROCESS OF EXPORTATION HAD BEEN TAKEN OR THAT A PART OF THE
TOTAL BULK HAD ALREADY DEPARTED FOR ITS FOREIGN DESTINATION.  IT IS OF
COURSE TRUE THAT COMMODITIES DESTINED FOR SHIPMENT BY WATER MUST BE
TRANSSHIPPED AT THE WATER'S EDGE AND SO MAY REQUIRE A BRIEF PERIOD OF
STORAGE AT THAT POINT WHICH WILL NOT BE DEEMED A DELAY SUFFICIENT TO
INTERRUPT THE CONTINUITY OF THE EXPORT PROCESS.  CARSON PETROLEUM CO.
V. VIAL, 279 U.S. 95; SEE SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE
COMMERCE COMM'N, 219 U.S. 498; TEXAS & N.O.R. CO. V. SABINE TRAM CO.,
227 U.S. 111.  BUT HERE THE PERIOD OF STORAGE AT DEARBORN WAS SO LONG
AS TO PRECLUDE HOLDING THAT THE FIRST STEP TOWARD EXPORTATION WOULD
INEVITABLY BE FOLLOWED BY OTHERS.  SEE, BY WAY OF CONTRAST, HUGHES
BROS. TIMBER CO. V. MINNESOTA, 272 U.S. 469.  WHILE IN STORAGE, THE
GASOLINE MIGHT HAVE BEEN DIVERTED TO DOMESTIC MARKETS WITHOUT
DISRUPTION OF ANY EXISTING ARRANGEMENT FOR ITS TRANSSHIPMENT AND
WITHOUT EVEN BREACH OF ANY CONTRACTUAL COMMITMENT TO A FOREIGN
PURCHASER.  NEITHER THE CHARACTER OF THE PROPERTY NOR ANY EVENT
EQUIVALENT TO ITS REDELIVERY TO A COMMON CARRIER MADE EXPORT CERTAIN
FOR ALL PRACTICAL PURPOSES.  SEE RICHFIELD OIL CORP. V. STATE BOARD,
329 U.S. 69, 82. 

THE EXPORT-IMPORT CLAUSE WAS MEANT TO CONFER IMMUNITY FROM LOCAL
TAXATION UPON PROPERTY BEING EXPORTED, NOT TO RELIEVE PROPERTY
EVENTUALLY TO BE EXPORTED FROM ITS SHARE OF THE COST OF LOCAL
SERVICES.  SEE COE V. ERROL, 116 U.S. 517, 527-28.  THE FIFTEEN-MONTH
DELAY AT DEARBORN BARRED IMMUNITY OF PETITIONER'S GASOLINE FROM THE
TAXING POWER OF THE MUNICIPALITY.  AFFIRMED. 

MR. CHIEF JUSTICE VINSON, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE JACKSON JOIN, DISSENTING. 

THE COURT HOLDS THAT FIFTEEN MONTHS' DELAY IN TRANSSHIPMENT OF THE
GASOLINE IN QUESTION WAS SO LONG THAT CONTINUITY OF THE PROCESS OF
EXPORTATION WAS BROKEN, BECAUSE DURING THAT PERIOD IT MIGHT HAVE BEEN
DIVERTED TO DOMESTIC MARKETS.  I THINK THAT THIS RATIONALE AND THE
CONCLUSION WHICH FOLLOWS THEREFROM MARK A SUBSTANTIAL AND UNWARRANTED
DEPARTURE FROM OUR PREVIOUS DECISIONS IN THIS FIELD. 

AS I UNDERSTAND IT, THE COURT'S OPINION REFLECTS THE VIEW THAT A LONG
DELAY IN TRANSSHIPMENT MAKES IT UNCERTAIN WHETHER THE GASOLINE WILL
EVENTUALLY BE EXPORTED, AND FURTHER, THAT A DELAY OF FIFTEEN MONTHS
MAKES IT POSSIBLE FOR THIS COURT TO SAY AS A MATTER OF LAW THAT THE
UNCERTAINTY IS SO GREAT THAT THE PROCESS OF EXPORTATION HAS CEASED,
WHATEVER THE REASON FOR THE DELAY.  BUT THE COURT CONCEDES THAT
PETITIONER INTENDED TO EXPORT THE GASOLINE AT THE TIME THE TAX WAS
IMPOSED, AND PETITIONER'S UNCONTRADICTED EVIDENCE SHOWS THAT IT HAD
THAT INTENT THROUGHOUT THE PERIOD OF DELAY, WHICH WAS CAUSED BY ITS
INABILITY TO PROCURE WATER TRANSPORTATION.  THAT INTENT WAS MANIFESTED
IN A NUMBER OF WAYS.  THE BILLS OF LADING BY WHICH THE GASOLINE MOVED
FROM GRANDVILLE AND ALMA, MICHIGAN, TO DEARBORN, A GREAT LAKES PORT,
WERE MARKED "FOR EXPORT TO CANADA"; PETITIONER CERTIFIED THAT THE
GASOLINE WAS TO BE EXPORTED IN ORDER TO SECURE AN EXEMPTION UNDER THE
FEDERAL MANUFACTURER'S EXCISE TAX AND TO QUALIFY FOR LOWER FREIGHT
RATES ACCORDED EXPORTS; IT TRANSPORTED 50,000 GALLONS OF THE GASOLINE
BY TRUCK OVER THE AMBASSADOR BRIDGE INTO CANADA UNTIL A FEDERAL
REGULATION CLOSED THE BRIDGE TO INFLAMMABLE MATERIALS; AND FINALLY,
PETITIONER EXPORTED ALL OF THE GASOLINE TO CANADA WHEN SHIPPING SPACE
BECAME AVAILABLE.  THERE IS NOTHING IN THE RECORD TO INDICATE EITHER
THAT PETITIONER AT ANY TIME DEVIATED FROM THAT EXPRESSED INTENT, OR
THAT THE DELAY WAS NOT DUE SOLELY TO LACK OF SHIPPING SPACE. 

THE COURT IS IN THE ANOMALOUS POSITION, THEREFORE, OF HOLDING AS A
MATTER OF LAW THAT A FIFTEEN-MONTH DELAY IN TRANSSHIPMENT BREAKS THE
"STREAM OF EXPORT" BECAUSE OF THE RESULTING UNCERTAINTY THAT THE GOODS
WILL ULTIMATELY BE EXPORTED, WHEN ALL OF THE EVIDENCE IS TO THE EFFECT
THAT THE SHIPPER'S INTENT TO EXPORT HAS NEVER WAVERED; THAT EXPORTATION
WAS AS CERTAIN AS OF THE DATE OF THE TAX AS IT HAD BEEN FIFTEEN MONTHS
BEFORE.  THE COURT HAS PREVIOUSLY CONSIDERED THE QUESTION TO BE QUITE A
DIFFERENT ONE.  WE HAVE HELD THAT 

"THE CHARACTER OF THE SHIPMENT IN SUCH A CASE DEPENDS UPON ALL THE
EVIDENTIAL CIRCUMSTANCES LOOKING TO WHAT THE OWNER HAS DONE IN THE
PREPARATION FOR THE JOURNEY AND IN CARRYING IT OUT.  THE MERE POWER OF
THE OWNER TO DIVERT THE SHIPMENT ALREADY STARTED DOES NOT TAKE IT OUT
OF INTERSTATE COMMERCE, IF THE OTHER FACTS SHOW THAT THE JOURNEY HAS
ALREADY BEGUN IN GOOD FAITH AND TEMPORARY INTERRUPTION OF THE PASSAGE
IS REASONABLE AND IN FURTHERANCE OF THE INTENDED TRANSPORTATION, AS IN
THE CHAMPLAIN CASE."  HUGHES BROTHERS TIMBER CO. V. MINNESOTA, 272 U.S.
469, 475-476(1926). 

THIS TEST WAS QUOTED WITH APPROVAL BY MR. CHIEF JUSTICE HUGHES IN
MINNESOTA V. BLASIUS, 290 U.S. 1, 10(1933), AND HE ADDED, "THE QUESTION
IS ALWAYS ONE OF SUBSTANCE, AND IN EACH CASE IT IS NECESSARY TO
CONSIDER THE PARTICULAR OCCASION OR PURPOSE OF THE INTERRUPTION DURING
WHICH THE TAX IS SOUGHT TO BE LEVIED."  SEE ALSO TO THE SAME EFFECT,
CHAMPLAIN REALTY CO. V. TOWN OF BRATTLEBORO, 260 U.S. 366, 377(1922);
CARSON PETROLEUM CO. V. VIAL, 279 U.S. 95, 102(1929); UNITED STATES V.
ERIE R. CO., 280 U.S. 98, 102(1929).  THE COURT NOW REFUSES TO LOOK AT
ANY CIRCUMSTANCES EXCEPT THE DELAY - NOT EVEN THE REASON FOR THE
DELAY. 

IT IS TRUE THAT PETITIONER COULD HAVE MOVED THE GASOLINE MORE QUICKLY
HAD IT USED THE MORE EXPENSIVE ALL-RAIL SERVICE.  BUT IN ALMOST EVERY
CASE OF DELAY A QUICKER METHOD OF MOVING THE GOODS MIGHT HAVE BEEN
DEVISED.  NO DOUBT THE LOGS HELD UP BY LOW WATER IN COE V. ERROL, 116
U.S. 517(1886), COULD HAVE BEEN DRAWN OVERLAND BY MULES OR OXEN.  AND
IT WOULD HAVE BEEN POSSIBLE, THOUGH NOT PRACTICAL, FOR OIL TO HAVE BEEN
TRANSFERRED DIRECTLY FROM TANK CARS TO WAITING SHIPS IN CARSON
PETROLEUM CO. V. VIAL, SUPRA, YET THIS COURT FOUND THAT THE DELAY
NECESSARILY ATTENDANT UPON THE ACCUMULATION OF OIL IN TANKS AT THE
WATERFRONT TO AWAIT THE ARRIVAL OF SHIPS DID NOT CONSTITUTE
INTERRUPTION OF THE PROCESS OF EXPORTATION.  THE DELAY WAS "REASONABLE
AND IN FURTHERANCE OF THE INTENDED TRANSPORTATION." 

CONCEDEDLY, THE GASOLINE HERE INVOLVED WAS IN THE PROCESS OF
EXPORTATION WHEN TAXED UNLESS THE DELAY WAS ALONE ENOUGH TO BREAK THE
STREAM OF EXPORT.  IT HAD BEEN STARTED ON ITS JOURNEY WITH EVERY
INDICATION THAT IT WAS TO BE TRANSSHIPPED FOR EXPORT.  IF ACTUAL
EXPORTATION HAD FOLLOWED ITS ARRIVAL IN DEARBORN BY A FEW DAYS OR
WEEKS, THERE IS NO QUESTION THAT IT WOULD HAVE BEEN A COMMODITY IN THE
PROCESS OF EXPORTATION AND THUS EXEMPT FROM TAX.  IN THIS SITUATION,
THE COURT HAS ALWAYS, UNTIL TODAY, APPLIED "A LIBERAL CONSTRUCTION OF
WHAT IS CONTINUITY OF THE JOURNEY, IN CASES WHERE THE COURT FINDS FROM
THE CIRCUMSTANCES THAT EXPORT TRADE HAS BEEN ACTUALLY INTENDED AND
CARRIED THROUGH."  CARSON PETROLEUM CO. V. VIAL, SUPRA AT PP. 105-106. 
BUT THE COURT NOW TREATS AS IMMATERIAL THE FACT THAT THE PROCESS OF
EXPORTATION HAD STARTED, WHICH HAS ALWAYS BEEN CONSIDERED THE DECISIVE
FACTOR, CORNELL V. COYNE, 192 U.S. 418(1904), EMPRESA SIDERURGICA V.
COUNTY OF MERCED, 337 U.S. 154(1949), AND ASSUMES THAT A DELAY OF
FIFTEEN MONTHS CONCLUSIVELY DEMONSTRATES THAT CERTAINTY OF EXPORTATION
HAD BEEN UNDERMINED.  IT IS ALMOST ALWAYS POSSIBLE IN CASES OF THIS
KIND THAT THE OWNER OF THE GOODS MAY CHANGE HIS MIND BEFORE EXPORTATION
IS ACTUALLY CARRIED OUT, AS MR. JUSTICE HOLMES POINTED OUT IN SPALDING
& BROS. V. EDWARDS, 262 U.S. 66, 70(1923).  DELAY UNDOUBTEDLY INCREASES
THE POSSIBILITY, BUT IT DOES NOT WORK SUCH A CHANGE AS A MATTER OF
LAW.  THE QUESTION, INSTEAD, IS THAT PREVIOUSLY POINTED OUT, NAMELY,
WHETHER "THE JOURNEY HAS ALREADY BEGUN IN GOOD FAITH AND (WHETHER)
TEMPORARY INTERRUPTION OF THE PASSAGE IS REASONABLE AND IN FURTHERANCE
OF THE INTENDED TRANSPORTATION."  HUGHES BROTHERS TIMBER CO. V.
MINNESOTA, SUPRA, AT 476. 

THE RESULT IS THAT THE COURT, WITHOUT CONSIDERATION OF THE FACT THAT
THE GASOLINE HAD BEEN STARTED ON ITS JOURNEY WITH THE INTENT THAT IT BE
TRANSSHIPPED FOR IMMEDIATE EXPORT TO CANADA, HOLDS THAT FIFTEEN MONTHS'
UNAVOIDABLE DELAY IS SO PRODUCTIVE OF UNCERTAINTY THAT THE PROCESS OF
EXPORTATION CEASES AS A MATTER OF LAW.  IT MIGHT BE POINTED OUT THAT IN
THE LEADING CASE OF COE V. ERROL, SUPRA, LOGS BEING FLOATED DOWN A
RIVER WERE HELD UP BY LOW WATER FOR ABOUT A YEAR, BUT THIS COURT DID
NOT CONSIDER THAT DELAY ENOUGH TO BREAK THE CONTINUITY OF THE
INTERSTATE JOURNEY.  THE LINE NOW SEEMS TO BE DRAWN SOMEWHERE BETWEEN
TWELVE AND FIFTEEN MONTHS, WHATEVER THE OTHER CIRCUMSTANCES.  SUCH AN
ARBITRARY DEMARCATION IS HARDLY CONSONANT WITH "THE LIBERAL PROTECTION
THAT HITHERTO (EXPORTS) HAVE RECEIVED."  SPALDING & BROS. V. EDWARDS,
SUPRA, AT P. 70.  I WOULD ADHERE TO THE TEST SET OUT IN OUR PREVIOUS
DECISIONS:  WHETHER THE DELAY WAS REASONABLE UNDER ALL THE
CIRCUMSTANCES AND IN FURTHERANCE OF THE INTENDED TRANSPORTATION. 
..END :















STANDARD OIL CO. V. UNITED STATES, 337 U.S. 293 


NO. 279.  ARGUED MARCH 3-4, 1949.  - DECIDED JUNE 13, 1949.  - 78
F.SUPP.  850, AFFIRMED. 


1.  UNDER CONTRACTS ENTERED INTO BY AN OIL COMPANY WITH INDEPENDENT
DEALERS IN PETROLEUM PRODUCTS AND AUTOMOBILE ACCESSORIES, THE DEALER
AGREED TO PURCHASE EXCLUSIVELY FROM THE COMPANY ALL OF HIS REQUIREMENTS
OF ONE OR MORE OF THE PRODUCTS MARKETED BY THE COMPANY.  IN 1947 THE
CONTRACTS AFFECTED A GROSS BUSINESS OF $58,000,000, COMPRISING 6.7% OF
THE TOTAL IN A SEVEN-STATE AREA IN WHICH THE COMPANY SOLD ITS
PRODUCTS.  HELD:  THE CONTRACTS WERE VIOLATIVE OF SEC. 3 OF THE CLAYTON
ACT AND THE COMPANY WAS PROPERLY ENJOINED FROM ENFORCING OR ENTERING
INTO THEM.  PP. 294-314. 

2.  THE REQUIREMENT OF SEC. 3 OF THE CLAYTON ACT OF A SHOWING THAT
THE EFFECT OF THE CONTRACTS "MAY BE TO SUBSTANTIALLY LESSEN
COMPETITION" IS HERE SATISFIED BY PROOF THAT COMPETITION HAS BEEN
FORECLOSED IN A SUBSTANTIAL SHARE OF THE LINE OF COMMERCE AFFECTED. 
PP. 299-314. 

(A)  IN VIEW OF THE WIDESPREAD ADOPTION OF SUCH CONTRACTS BY THE
COMPANY'S COMPETITORS AND THE AVAILABILITY OF ALTERNATIVE WAYS OF
OBTAINING AN ASSURED MARKET, EVIDENCE THAT COMPETITIVE ACTIVITY HAS NOT
ACTUALLY DECLINED IS INCONCLUSIVE.  P. 314. 

(B)  THE COMPANY'S USE OF THE CONTRACTS CREATES JUST SUCH A POTENTIAL
CLOG ON COMPETITION AS IT WAS THE PURPOSE OF SEC. 3 TO REMOVE WHEREVER,
WERE IT TO BECOME ACTUAL, IT WOULD IMPEDE A SUBSTANTIAL AMOUNT OF
COMPETITIVE ACTIVITY.  P. 314. 

3.  THE FACT THAT NEARLY ALL THE PRODUCTS SOLD BY THE COMPANY TO
CALIFORNIA DEALERS ARE PRODUCED IN THAT STATE DOES NOT EXEMPT THE
COMPANY'S REQUIREMENTS CONTRACTS WITH CALIFORNIA DEALERS AS NOT
SUBSTANTIALLY AFFECTING INTERSTATE COMMERCE, SINCE THE EFFECT OF THOSE
CONTRACTS IS TO PREVENT THE CALIFORNIA DEALERS FROM DEALING WITH OUT-OF
STATE AS WELL AS LOCAL SUPPLIERS AND THUS TO LESSEN COMPETITION IN BOTH
INTERSTATE AND INTRASTATE COMMERCE.  ADDYSTON PIPE & STEEL CO. V.
UNITED STATES, 175 U.S. 211, DISTINGUISHED.  PP. 314-315. 

STANDARD OIL COMPANY OF CALIFORNIA ET AL. V. UNITED STATES. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

IN A SUIT BROUGHT BY THE UNITED STATES UNDER THE ANTITRUST LAWS, THE
DISTRICT COURT ENJOINED AN OIL COMPANY AND ITS WHOLLY OWNED SUBSIDIARY
FROM ENFORCING OR ENTERING INTO EXCLUSIVE SUPPLY CONTRACTS WITH
INDEPENDENT DEALERS IN PETROLEUM PRODUCTS AND AUTOMOBILE ACCESSORIES. 
78 F.SUPP.  850.  THE COMPANIES APPEALED DIRECTLY TO THIS COURT. 
AFFIRMED, P. 315. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL TO REVIEW A DECREE ENJOINING THE STANDARD OIL
COMPANY OF CALIFORNIA AND ITS WHOLLYOWNED SUBSIDIARY, STANDARD
STATIONS, INC.,  FN1  FROM ENFORCING OR ENTERING INTO EXCLUSIVE SUPPLY
CONTRACTS WITH ANY INDEPENDENT DEALER IN PETROLEUM PRODUCTS AND
AUTOMOBILE ACCESSORIES.  78 F.SUPP.  850.  THE USE OF SUCH CONTRACTS
WAS SUCCESSFULLY ASSAILED BY THE UNITED STATES AS VIOLATIVE OF SEC. 1
OF THE SHERMAN ACT  FN2  AND SEC. 3 OF THE CLAYTON ACT.  FN3 

THE STANDARD OIL COMPANY OF CALIFORNIA, A DELAWARE CORPORATION, OWNS
PETROLEUM-PRODUCING RESOURCES AND REFINING PLANTS IN CALIFORNIA AND
SELLS PETROLEUM PRODUCTS IN WHAT HAS BEEN TERMED IN THESE PROCEEDINGS
THE "WESTERN AREA" - ARIZONA, CALIFORNIA, IDAHO, NEVADA, OREGON, UTAH
AND WASHINGTON.  IT SELLS THROUGH ITS OWN SERVICE STATIONS, TO THE
OPERATORS OF INDEPENDENT SERVICE STATIONS, AND TO INDUSTRIAL USERS.  IT
IS THE LARGEST SELLER OF GASOLINE IN THE AREA.  IN 1946 ITS COMBINED
SALES AMOUNTED TO 23% OF THE TOTAL TAXABLE GALLONAGE SOLD THERE IN THAT
YEAR:  SALES BY COMPANY-OWNED SERVICE STATIONS CONSTITUTED 6.8% OF THE
TOTAL, SALES UNDER EXCLUSIVE DEALING CONTRACTS WITH INDEPENDENT SERVICE
STATIONS, 6.7% OF THE TOTAL; THE REMAINDER WERE SALES TO INDUSTRIAL
USERS.  RETAIL SERVICE-STATION SALES BY STANDARD'S SIX LEADING
COMPETITORS ABSORBED 42.5% OF THE TOTAL TAXABLE GALLONAGE; THE
REMAINING RETAIL SALES WERE DIVIDED BETWEEN MORE THAN SEVENTY SMALL
COMPANIES.  IT IS UNDISPUTED THAT STANDARD'S MAJOR COMPETITORS EMPLOY
SIMILAR EXCLUSIVE DEALING ARRANGEMENTS.  IN 1948 ONLY 1.6% OF RETAIL
OUTLETS WERE WHAT IS KNOWN AS "SPLIT-PUMP" STATIONS, THAT IS, SOLD THE
GASOLINE OF MORE THAN ONE SUPPLIER. 

EXCLUSIVE SUPPLY CONTRACTS WITH STANDARD HAD BEEN ENTERED INTO, AS OF
MARCH 12, 1947, BY THE OPERATORS OF 5,937 INDEPENDENT STATIONS, OR 16%
OF THE RETAIL GASOLINE OUTLETS IN THE WESTERN AREA, WHICH PURCHASED
FROM STANDARD IN 1947, $57,646,233 WORTH OF GASOLINE AND $8,200,089.21
WORTH OF OTHER PRODUCTS.  SOME OUTLETS ARE COVERED BY MORE THAN ONE
CONTRACT SO THAT IN ALL ABOUT 8,000 EXCLUSIVE SUPPLY CONTRACTS ARE HERE
IN ISSUE.  THESE ARE OF SEVERAL TYPES, BUT A FEATURE COMMON TO EACH IS
THE DEALER'S UNDERTAKING TO PURCHASE FROM STANDARD ALL HIS REQUIREMENTS
OF ONE OR MORE PRODUCTS.  TWO TYPES, COVERING 2,777 OUTLETS, BIND THE
DEALER TO PURCHASE OF STANDARD ALL HIS REQUIREMENTS OF GASOLINE AND
OTHER PETROLEUM PRODUCTS AS WELL AS TIRES, TUBES, AND BATTERIES.  THE
REMAINING WRITTEN AGREEMENTS, 4,368 IN NUMBER, BIND THE DEALER TO
PURCHASE OF STANDARD ALL HIS REQUIREMENTS OF PETROLEUM PRODUCTS ONLY. 
IT WAS ALSO FOUND THAT INDEPENDENT DEALERS HAD ENTERED 742 ORAL
CONTRACTS BY WHICH THEY AGREED TO SELL ONLY STANDARD'S GASOLINE.  IN
SOME INSTANCES DEALERS WHO CONTRACTED TO PURCHASE FROM STANDARD ALL
THEIR REQUIREMENTS OF TIRES, TUBES, AND BATTERIES, HAD ALSO ORALLY
AGREED TO PURCHASE OF STANDARD THEIR REQUIREMENTS OF OTHER AUTOMOBILE
ACCESSORIES.  OF THE WRITTEN AGREEMENTS, 2,712 WERE FOR VARYING
SPECIFIED TERMS; THE REST WERE EFFECTIVE FROM YEAR TO YEAR BUT
TERMINABLE "AT THE END OF THE FIRST 6 MONTHS OF ANY CONTRACT YEAR, OR
AT THE END OF ANY SUCH YEAR, BY GIVING TO THE OTHER AT LEAST 30 DAYS
PRIOR THERETO WRITTEN NOTICE  ...  "  BEFORE 1934 STANDARD'S SALES OF
PETROLEUM PRODUCTS THROUGH INDEPENDENT SERVICE STATIONS WERE MADE
PURSUANT TO AGENCY AGREEMENTS, BUT IN THAT YEAR STANDARD ADOPTED THE
FIRST OF ITS SEVERAL REQUIREMENTS-PURCHASE CONTRACT FORMS, AND BY 1938
REQUIREMENTS CONTRACTS HAD WHOLLY SUPERSEDED THE AGENCY METHOD OF
DISTRIBUTION. 

BETWEEN 1936 AND 1946 STANDARD'S SALES OF GASOLINE THROUGH
INDEPENDENT DEALERS REMAINED AT A PRACTICALLY CONSTANT PROPORTION OF
THE AREA'S TOTAL SALES; ITS SALES OF LUBRICATING OIL DECLINED SLIGHTLY
DURING THAT PERIOD FROM 6.2% TO 5% OF THE TOTAL.  ITS PROPORTIONATE
SALES OF TIRES AND BATTERIES FOR 1946 WERE SLIGHTLY HIGHER THAN THEY
WERE IN 1936, THOUGH SOMEWHAT LOWER THAN FOR SOME INTERVENING YEARS;
THEY HAVE NEVER, AS TO EITHER OF THESE PRODUCTS, EXCEEDED 2% OF THE
TOTAL SALES IN THE WESTERN AREA. 

SINCE SEC. 3 OF THE CLAYTON ACT WAS DIRECTED TO PROHIBITING SPECIFIC
PRACTICES EVEN THOUGH NOT COVERED BY THE BROAD TERMS OF THE SHERMAN
ACT,  FN4  IT IS APPROPRIATE TO CONSIDER FIRST WHETHER THE ENJOINED
CONTRACTS FALL WITHIN THE PROHIBITION OF THE NARROWER ACT.  THE
RELEVANT PROVISIONS OF SEC. 3 ARE: 

"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  ...  ON THE CONDITION, AGREEMENT, OR
UNDERSTANDING THAT THE LESSEE OR PURCHASER THEREOF SHALL NOT USE OR
DEAL IN THE GOODS  ...  OF A COMPETITOR OR COMPETITORS OF THE  ...
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." 

OBVIOUSLY THE CONTRACTS HERE AT ISSUE WOULD BE PROSCRIBED IF SEC. 3
STOPPED SHORT OF THE QUALIFYING CLAUSE BEGINNING, "WHERE THE EFFECT OF
SUCH LEASE, SALE, OR CONTRACT FOR SALE  ...  " IF EFFECT IS TO BE GIVEN
THAT CLAUSE, HOWEVER, IT IS BY NO MEANS OBVIOUS, IN VIEW OF STANDARD'S
MINORITY SHARE OF THE "LINE OF COMMERCE" INVOLVED, OF THE FACT THAT
THAT SHARE HAS NOT RECENTLY INCREASED, AND OF THE CLAIMS OF THESE
CONTRACTS TO ECONOMIC UTILITY, THAT THE EFFECT OF THE CONTRACTS MAY BE
TO LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY.  IT IS THE
QUALIFYING CLAUSE, THEREFOR, WHICH MUST BE CONSTRUED. 

THE DISTRICT COURT HELD THAT THE REQUIREMENT OF SHOWING AN ACTUAL OR
POTENTIAL LESSENING OF COMPETITION OR A TENDENCY TO ESTABLISH MONOPOLY
WAS ADEQUATELY MET BY PROOF THAT THE CONTRACTS COVERED "A SUBSTANTIAL
NUMBER OF OUTLETS AND A SUBSTANTIAL AMOUNT OF PRODUCTS, WHETHER
CONSIDERED COMPARATIVELY OR NOT."  78 F.SUPP.  AT 875.  GIVEN SUCH
QUANTITATIVE SUBSTANTIALITY, THE SUBSTANTIAL LESSENING OF COMPETITION -
SO THE COURT REASONED - IS AN AUTOMATIC RESULT, FOR THE VERY EXISTENCE
OF SUCH CONTRACTS DENIES DEALERS OPPORTUNITY TO DEAL IN THE PRODUCTS OF
COMPETING SUPPLIERS AND EXCLUDES SUPPLIERS FROM ACCESS TO THE OUTLETS
CONTROLLED BY THOSE DEALERS.  HAVING ADOPTED THIS STANDARD OF PROOF,
THE COURT EXCLUDED AS IMMATERIAL TESTIMONY BEARING ON "THE ECONOMIC
MERITS OR DEMERITS OF THE PRESENT SYSTEM AS CONTRASTED WITH A SYSTEM
WHICH PREVAILED PRIOR TO ITS ESTABLISHMENT AND WHICH WOULD PREVAIL IF
THE COURT DECLARED THE PRESENT ARRANGEMENT (INVALID)."  THE COURT
LIKEWISE DEEMED IT UNNECESSARY TO MAKE FINDINGS, ON THE BASIS OF
EVIDENCE THAT WAS ADMITTED, WHETHER THE NUMBER OF STANDARD'S
COMPETITORS HAD INCREASED OR DECREASED SINCE THE INAUGURATION OF THE
REQUIREMENTSCONTRACT SYSTEM, WHETHER THE NUMBER OF THEIR DEALERS HAD
INCREASED OR DECREASED, AND AS TO OTHER MATTERS WHICH WOULD HAVE SHED
LIGHT ON THE COMPARATIVE STATUS OF STANDARD AND ITS COMPETITORS BEFORE
AND AFTER THE ADOPTION OF THAT SYSTEM.  THE COURT CONCLUDED: 

"GRANT THAT, ON A COMPARATIVE BASIS, AND IN RELATION TO THE ENTIRE
TRADE IN THESE PRODUCTS IN THE AREA, THE RESTRAINT IS NOT INTEGRAL. 
ADMIT ALSO THAT CONTROL OF DISTRIBUTION RESULTS IN LESSENING OF COSTS
AND THAT ITS ABANDONMENT MIGHT INCREASE COSTS.  ...  CONCEDE FURTHER,
THAT THE ARRANGEMENT WAS ENTERED INTO IN GOOD FAITH, WITH THE HONEST
BELIEF THAT CONTROL OF DISTRIBUTION AND CONSEQUENT CONCENTRATION OF
REPRESENTATION WERE ECONOMICALLY BENEFICIAL TO THE INDUSTRY AND TO THE
PUBLIC, THAT THEY HAVE CONTINUED FOR OVER FIFTEEN YEARS OPENLY,
NOTORIOUSLY AND UNMOLESTED BY THE GOVERNMENT, AND HAVE BEEN PRACTICED
BY OTHER MAJOR OIL COMPANIES COMPETING WITH STANDARD, THAT THE NUMBER
OF STANDARD OUTLETS SO CONTROLLED MAY HAVE DECREASED, AND THE QUANTITY
OF PRODUCTS SUPPLIED TO THEM MAY HAVE DECLINED, ON A COMPARATIVE
BASIS.  NEVERTHELESS, AS I READ THE LATEST CASES OF THE SUPREME COURT,
I AM COMPELLED TO FIND THE PRACTICES HERE INVOLVED TO BE VIOLATIVE OF
BOTH STATUTES.  FOR THEY AFFECT INJURIOUSLY A SIZEABLE PART OF
INTERSTATE COMMERCE, OR,  - TO USE THE CURRENT PHRASE,  - 'AN
APPRECIABLE SEGMENT' OF INTERSTATE COMMERCE." 

THE ISSUE BEFORE US, THEREFORE, IS WHETHER THE REQUIREMENT OF SHOWING
THAT THE EFFECT OF THE AGREEMENTS "MAY BE TO SUBSTANTIALLY LESSEN
COMPETITION" MAY BE MET SIMPLY BY PROOF THAT A SUBSTANTIAL PORTION OF
COMMERCE IS AFFECTED OR WHETHER IT MUST ALSO BE DEMONSTRATED THAT
COMPETITIVE ACTIVITY HAS ACTUALLY DIMINISHED OR PROBABLY WILL
DIMINISH.  FN5 

SINCE THE CLAYTON ACT BECAME EFFECTIVE, THIS COURT HAS PASSED ON THE
APPLICABILITY OF SEC. 3 IN EIGHT CASES, IN FIVE OF WHICH IT UPHELD
DETERMINATIONS THAT THE CHALLENGED AGREEMENT WAS VIOLATIVE OF THAT
STATES, 258 U.S. 451; INTERNATIONAL BUSINESS MACHINES CORP. V. UNITED
STATES, 298 U.S. 131; INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392 - INVOLVED CONTRACTS TYING TO THE USE OF A PATENTED ARTICLE ALL
PURCHASES OF AN UNPATENTED PRODUCT USED IN CONNECTION WITH THE PATENTED
ARTICLE.  THE OTHER TWO CASES - STANDARD FASHION CO. V. MAGRANE-HOUSTON
CO., 258 U.S. 346; FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N,
312 U.S. 457 - INVOLVED REQUIREMENTS CONTRACTS NOT UNLIKE THOSE HERE IN
ISSUE. 

THE STANDARD FASHION CASE, THE FIRST OF THE FIVE HOLDING THAT THE ACT
HAD BEEN VIOLATED, SETTLED ONE QUESTION OF INTERPRETATION OF SEC. 3. 
THE COURT SAID: 

"SECTION 3 CONDEMNS SALES OR AGREEMENTS WHERE THE EFFECT OF SUCH SALE
OR CONTRACT OF SALE 'MAY' BE TO SUBSTANTIALLY LESSEN COMPETITION OR
TEND TO CREATE MONOPOLY.  ...  BUT WE DO NOT THINK THAT THE PURPOSE IN
USING THE WORD 'MAY' WAS TO PROHIBIT THE MERE POSSIBILITY OF THE
CONSEQUENCES DESCRIBED.  IT WAS INTENDED TO PREVENT SUCH AGREEMENTS AS
WOULD UNDER THE CIRCUMSTANCES DISCLOSED PROBABLY LESSEN COMPETITION, OR
CREATE AN ACTUAL TENDENCY TO MONOPOLY."  258 U.S. AT 356-57.  SEE ALSO
FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37, 46, N. 14.  THE
COURT WENT ON TO ADD THAT THE FACT THAT THE SECTION "WAS NOT INTENDED
TO REACH EVERY REMOTE LESSENING OF COMPETITION IS SHOWN IN THE
REQUIREMENT THAT SUCH LESSENING MUST BE SUBSTANTIAL," BUT BECAUSE IT
DEEMED THE FINDING OF TWO LOWER COURTS THAT THE CONTRACTS IN QUESTION
DID SUBSTANTIALLY LESSEN COMPETITION AND TEND TO CREATE MONOPOLY AMPLY
SUPPORTED BY EVIDENCE THAT THE DEFENDANT CONTROLLED TWO-FIFTHS OF THE
NATION'S PATTERN AGENCIES, IT DID NOT PAUSE TO INDICATE WHERE THE LINE
BETWEEN A "REMOTE" AND A "SUBSTANTIAL" LESSENING SHOULD BE DRAWN. 

ALL BUT ONE OF THE LATER CASES ALSO REGARDED DOMINATION OF THE MARKET
AS SUFFICIENT IN ITSELF TO SUPPORT THE INFERENCE THAT COMPETITION HAD
BEEN OR PROBABLY WOULD BE LESSENED.  IN THE UNITED SHOE MACHINERY CASE,
REFERRING, INTER ALIA, TO THE CLAUSE INCORPORATED IN ALL UNITED'S
LEASES OF PATENTED MACHINERY REQUIRING THE USE BY THE LESSEE OF
MATERIALS SUPPLIED BY UNITED, THE COURT OBSERVED: 

"THAT SUCH RESTRICTIVE AND TYING AGREEMENTS MUST NECESSARILY LESSEN
COMPETITION AND TEND TO MONOPOLY IS, WE BELIEVE,  ...  APPARENT.  WHEN
IT IS CONSIDERED THAT THE UNITED COMPANY OCCUPIES A DOMINATING POSITION
IN SUPPLYING SHOE MACHINERY OF THE CLASSES INVOLVED, THESE COVENANTS
SIGNED BY THE LESSEE AND BINDING UPON HIM EFFECTUALLY PREVENT HIM FROM
ACQUIRING THE MACHINERY OF A COMPETITOR OF THE LESSOR EXCEPT AT THE
RISK OF FORFEITING THE RIGHT TO USE THE MACHINES FURNISHED BY THE
UNITED COMPANY WHICH MAY BE ABSOLUTELY ESSENTIAL TO THE PROSECUTION AND
SUCCESS OF HIS BUSINESS."  258 U.S. AT 457-58. 

IN THE INTERNATIONAL BUSINESS MACHINES CASE, THE DEFENDANTS WERE THE
SOLE MANUFACTURERS OF A PATENTED TABULATING MACHINE REQUIRING THE USE
OF UNPATENTED CARDS.  THE LESSEES OF THE MACHINES WERE BOUND BY TYING
CLAUSES TO USE IN THEM ONLY THE CARDS SUPPLIED BY THE DEFENDANTS, WHO,
BETWEEN THEM, DIVIDED THE WHOLE OF THE $3,000,000 ANNUAL GROSS OF THIS
BUSINESS ALSO.  THE COURT CONCLUDED: 

"THESE FACTS, AND OTHERS, WHICH WE DO NOT STOP TO ENUMERATE, CAN
LEAVE NO DOUBT THAT THE EFFECT OF THE CONDITION IN APPELLANT'S LEASES
'MAY BE TO SUBSTANTIALLY LESSEN COMPETITION,' AND THAT IT TENDS TO
CREATE MONOPOLY, AND HAS IN FACT BEEN AN IMPORTANT AND EFFECTIVE STEP
IN THE CREATION OF MONOPOLY."  298 U.S. AT 136. 

THE FASHION ORIGINATORS' GUILD CASE INVOLVED AN ASSOCIATION OF DRESS
MANUFACTURERS WHICH SOLD MORE THAN 60% OF ALL BUT THE CHEAPEST WOMEN'S
GARMENTS.  IN REJECTING THE RELEVANCE OF EVIDENCE THAT THE GUILD'S USE
OF REQUIREMENTS CONTRACTS WAS A "REASONABLE AND NECESSARY" MEASURE OF
PROTECTION AGAINST "THE DEVASTATING EVILS GROWING FROM THE PIRATING OF
ORIGINAL DESIGNS," THE COURT AGAIN EMPHASIZED THE PRESENCE AND THE
CONSEQUENCES OF ECONOMIC POWER:    "THE PURPOSE AND OBJECT OF THIS
COMBINATION, ITS POTENTIAL POWER, ITS TENDENCY TO MONOPOLY, THE
COERCION IT COULD AND DID PRACTICE UPON A RIVAL METHOD OF COMPETITION,
ALL BROUGHT IT WITHIN THE POLICY OF THE PROHIBITION DECLARED BY THE
SHERMAN AND CLAYTON ACTS."  312 U.S. AT 467-68. 

IT IS THUS APPARENT THAT NONE OF THESE CASES CONTROLS THE DISPOSITION
OF THE PRESENT APPEAL, FOR STANDARD'S SHARE OF THE RETAIL MARKET FOR
GASOLINE, EVEN INCLUDING SALES THROUGH COMPANY-OWNED STATIONS, IS
HARDLY LARGE ENOUGH TO CONCLUDE AS A MATTER OF LAW THAT IT OCCUPIES A
DOMINANT POSITION, NOR DID THE TRIAL COURT SO FIND.  THE CASES DO
INDICATE, HOWEVER, THAT SOME SORT OF SHOWING AS TO THE ACTUAL OR
PROBABLE ECONOMIC CONSEQUENCES OF THE AGREEMENTS, IF ONLY THE
INFERENCES TO BE DRAWN FROM THE FACT OF DOMINANT POWER, IS IMPORTANT,
AND TO THAT EXTENT THEY TEND TO SUPPORT APPELLANT'S POSITION. 

TWO OF THE THREE CASES DECIDED BY THIS COURT WHICH HAVE HELD SEC. 3
INAPPLICABLE ALSO LEND SUPPORT TO THE VIEW THAT SUCH A SHOWING IS
NECESSARY.  THESE ARE, FEDERAL TRADE COMM'N V. SINCLAIR CO., 261 U.S.
463, AND PICK MFG. CO. V. GENERAL MOTORS CORP., 299 U.S. 3.  THE THIRD
FEDERAL TRADE COMM'N V. CURTIS PUB. CO., 260 U.S. 568 - WENT OFF ON
THE GROUND THAT THE CONTRACT INVOLVED WAS ONE OF AGENCY AND SO IS OF NO
PRESENT RELEVANCE.  THE SINCLAIR CASE INVOLVED THE LEASE OF GASOLINE
PUMPS AND STORAGE TANKS ON CONDITION THAT THE DEALER WOULD USE THEM
ONLY FOR SINCLAIR'S GASOLINE, BUT SINCLAIR DID NOT OWN PATENTS ON THE
PUMPS OR TANKS AND EVIDENTLY DID NOT OTHERWISE CONTROL THEIR SUPPLY. 
ALTHOUGH THE TRADE COMMISSION HAD FOUND THAT FEW DEALERS NEEDED MORE
THAN ONE PUMP, THE COURT CONCLUDED THAT "THE RECORD DOES NOT SHOW THAT
THE PROBABLE EFFECT OF THE PRACTICE WILL BE UNDULY TO LESSEN
COMPETITION."  261 U.S. AT 475.  THE BASIS OF THIS CONCLUSION WAS THUS
SUMMARIZED: 

"MANY COMPETITORS SEEK TO SELL EXCELLENT BRANDS OF GASOLINE AND NO
ONE OF THEM IS ESSENTIAL TO THE RETAIL BUSINESS.  THE LESSEE IS FREE TO
BUY WHEREVER HE CHOOSES; HE MAY FREELY ACCEPT AND USE AS MANY PUMPS AS
HE WISHES AND MAY DISCONTINUE ANY OR ALL OF THEM.  HE MAY CARRY ON
BUSINESS AS HIS JUDGMENT DICTATES AND HIS MEANS PERMIT, SAVE ONLY THAT
HE CANNOT USE THE LESSOR'S EQUIPMENT FOR DISPENSING ANOTHER'S BRAND. 
BY INVESTING A COMPARATIVELY SMALL SUM, HE CAN BUY AN OUTFIT AND USE IT
WITHOUT HINDRANCE.  HE CAN HAVE RESPONDENT'S GASOLINE, WITH THE PUMP OR
WITHOUT THE PUMP, AND MANY COMPETITORS SEEK TO SUPPLY HIS NEEDS."  ID.
AT 474. 

THE PRESENT CASE DIFFERS OF COURSE IN THE FACT THAT A DEALER WHO HAS
ENTERED INTO A REQUIREMENTS CONTRACT WITH STANDARD CANNOT CONSISTENTLY
WITH THAT CONTRACT SELL THE PETROLEUM PRODUCTS OF A COMPETITOR OF
STANDARD'S NO MATTER HOW MANY PUMPS HE HAS,  FN6  BUT THE CASE IS
SIGNIFICANT FOR THE IMPORTANCE IT ATTACHES, IN THE ABSENCE OF A SHOWING
THAT THE SUPPLIER DOMINATED THE MARKET, TO THE PRACTICAL EFFECT OF THE
CONTRACTS.  THE SAME IS TRUE OF THE PICK CASE, IN WHICH THIS COURT
AFFIRMED IN A BRIEF PER CURIAM OPINION THE FINDING OF THE DISTRICT
COURT, CONCURRED IN BY THE COURT OF APPEALS, THAT THE EFFECT OF
CONTRACTS BY WHICH DEALERS AGREED NOT TO SELL OTHER AUTOMOBILE PARTS
THAN THOSE MANUFACTURED BY GENERAL MOTORS "HAD NOT BEEN IN ANY WAY
SUBSTANTIALLY TO LESSEN COMPETITION OR TO CREATE A MONOPOLY IN ANY LINE
OF COMMERCE."  299 U.S. AT 4. 

BUT THEN CAME INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392. 
THAT DECISION, AT LEAST AS TO CONTRACTS TYING THE SALE OF A NONPATENTED
TO A PATENTED PRODUCT, REJECTED THE NECESSITY OF DEMONSTRATING ECONOMIC
CONSEQUENCES ONCE IT HAS BEEN ESTABLISHED THAT "THE VOLUME OF BUSINESS
AFFECTED" IS NOT "INSIGNIFICANT OR INSUBSTANTIAL" AND THAT THE EFFECT
OF THE CONTRACTS IS TO "FORECLOSE COMPETITORS FROM (A) SUBSTANTIAL
MARKET."  ID. AT 396.  UPON THAT BASIS WE AFFIRMED A SUMMARY JUDGMENT
GRANTING AN INJUNCTION AGAINST THE LEASING OF MACHINES FOR THE
UTILIZATION OF SALT PRODUCTS ON THE CONDITION THAT THE LESSEE USE IN
THEM ONLY SALT SUPPLIED BY DEFENDANT.  IT WAS ESTABLISHED BY PLEADINGS
OR ADMISSIONS THAT DEFENDANT WAS THE COUNTRY'S LARGEST PRODUCER OF SALT
FOR INDUSTRIAL PURPOSES, THAT IT OWNED PATENTS ON THE LEASED MACHINES,
THAT ABOUT 900 LEASES WERE OUTSTANDING, AND THAT IN 1944 DEFENDANT SOLD
ABOUT $500,000 WORTH OF SALT FOR USE IN THESE MACHINES.  IT WAS NOT
ESTABLISHED THAT EQUIVALENT MACHINES WERE UNOBTAINABLE, IT WAS NOT
INDICATED WHAT PROPORTION OF THE BUSINESS OF SUPPLYING SUCH MACHINES
WAS CONTROLLED BY DEFENDANT, AND IT WAS DEEMED IRRELEVANT THAT THERE
WAS NO EVIDENCE AS TO THE ACTUAL EFFECT OF THE TYING CLAUSES UPON
COMPETITION.  FN7  IT IS CLEAR, THEREFORE, THAT UNLESS A DISTINCTION IS
TO BE DRAWN FOR PURPOSES OF THE APPLICABILITY OF SEC. 3 BETWEEN
REQUIREMENTS CONTRACTS AND CONTRACTS TYING THE SALE OF A NONPATENTED TO
A PATENTED PRODUCT, THE SHOWING THAT STANDARD'S REQUIREMENTS CONTRACTS
AFFECTED A GROSS BUSINESS OF $58,000,000 COMPRISING 6.7% OF THE TOTAL
IN THE AREA GOES FAR TOWARD SUPPORTING THE INFERENCE THAT COMPETITION
HAS BEEN OR PROBABLY WILL BE SUBSTANTIALLY LESSENED.  FN8 

IN FAVOR OF CONFINING THE STANDARD LAID DOWN BY THE INTERNATIONAL
SALT CASE TO TYING AGREEMENTS, IMPORTANT ECONOMIC DIFFERENCES MAY BE
NOTED.  TYING AGREEMENTS SERVE HARDLY ANY PURPOSE BEYOND THE
SUPPRESSION OF COMPETITION.  THE JUSTIFICATION MOST OFTEN ADVANCED IN
THEIR DEFENSE - THE PROTECTION OF THE GOOD WILL OF THE MANUFACTURER OF
THE TYING DEVICE - FAILS IN THE USUAL SITUATION BECAUSE SPECIFICATION
OF THE TYPE AND QUALITY OF THE PRODUCT TO BE USED IN CONNECTION WITH
THE TYING DEVICE IS PROTECTION ENOUGH.  IF THE MANUFACTURER'S BRAND OF
THE TIED PRODUCT IS IN FACT SUPERIOR TO THAT OF COMPETITORS, THE BUYER
WILL PRESUMABLY CHOOSE IT ANYWAY.  THE ONLY SITUATION, INDEED, IN WHICH
THE PROTECTION OF GOOD WILL MAY NECESSITATE THE USE OF TYING CLAUSES IS
WHERE SPECIFICATIONS FOR A SUBSTITUTE WOULD BE SO DETAILED THAT THEY
COULD NOT PRACTICABLY BE SUPPLIED.  IN 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.  SEE MILLER, UNFAIR COMPETITION 199 ET
SEQ. (1941); NOTE, 49 COL. L. REV. 241, 246(1949).  THE EXISTENCE OF
MARKET CONTROL OF THE TYING DEVICE, THEREFORE, AFFORDS A STRONG
FOUNDATION FOR THE PRESUMPTION THAT IT HAS BEEN OR PROBABLY WILL BE
USED TO LIMIT COMPETITION IN THE TIED PRODUCT ALSO. 

REQUIREMENTS CONTRACTS, ON THE OTHER HAND, MAY WELL BE OF ECONOMIC
ADVANTAGE TO BUYERS AS WELL AS TO SELLERS, AND THUS INDIRECTLY OF
ADVANTAGE TO THE CONSUMING PUBLIC.  IN THE CASE OF THE BUYER, THEY MAY
ASSURE SUPPLY, AFFORD PROTECTION AGAINST RISES IN PRICE, ENABLE LONG
TERM PLANNING ON THE BASIS OF KNOWN COSTS,  FN9  AND OBVIATE THE
EXPENSE AND RISK OF STORAGE IN THE QUANTITY NECESSARY FOR A COMMODITY
HAVING A FLUCTUATING DEMAND.  FROM THE SELLER'S POINT OF VIEW,
REQUIREMENTS CONTRACTS MAY MAKE POSSIBLE THE SUBSTANTIAL REDUCTION OF
SELLING EXPENSES, GIVE PROTECTION AGAINST PRICE FLUCTUATIONS, AND - OF
PARTICULAR ADVANTAGE TO A NEWCOMER TO THE FIELD TO WHOM IT IS IMPORTANT
TO KNOW WHAT CAPITAL EXPENDITURES ARE JUSTIFIED - OFFER THE POSSIBILITY
OF A PREDICTABLE MARKET.  SEE STOCKHAUSEN, THE COMMERCIAL AND ANTI
TRUST ASPECTS OF TERM REQUIREMENTS CONTRACTS, 23 N.Y.U.L.Q. REV. 412,
413-14(1948).  THEY MAY BE USEFUL, MOREOVER, TO A SELLER TRYING TO
ESTABLISH A FOOTHOLD AGAINST THE COUNTERATTACKS OF ENTRENCHED
COMPETITORS.  SEE ID. AT 424 ET SEQ.; EXCELSIOR MOTOR MFG. & SUPPLY CO.
V. SOUND EQUIPMENT, INC., 73 F.2D 725, 728(C.A.7TH CIR.); GENERAL
TALKING PICTURES CORP. V. AMERICAN TEL. & TEL. CO., 18 F.SUPP.  650,
666(D. DEL.).  FN10 SINCE THESE ADVANTAGES OF REQUIREMENTS CONTRACTS
MAY OFTEN BE SUFFICIENT TO ACCOUNT FOR THEIR USE, THE COVERAGE BY SUCH
CONTRACTS OF A SUBSTANTIAL AMOUNT OF BUSINESS AFFORDS A WEAKER BASIS
FOR THE INFERENCE THAT COMPETITION MAY BE LESSENED THAN WOULD SIMILAR
COVERAGE BY TYING CLAUSES, ESPECIALLY WHERE USE OF THE LATTER IS
COMBINED WITH MARKET CONTROL OF THE TYING DEVICE.  A PATENT, MOREOVER,
ALTHOUGH IN FACT THERE MAY BE MANY COMPETING SUBSTITUTES FOR THE
PATENTED ARTICLE, IS AT LEAST PRIMA FACIE EVIDENCE OF SUCH CONTROL. 
AND SO WE COULD NOT DISPOSE OF THIS CASE MERELY BY CITING INTERNATIONAL
SALT CO. V. UNITED STATES, 332 U.S. 392. 

THUS, EVEN THOUGH THE QUALIFYING CLAUSE OF SEC. 3 IS APPENDED WITHOUT
DISTINCTION OF TERMS EQUALLY TO THE PROHIBITION OF TYING CLAUSES AND OF
REQUIREMENTS CONTRACTS, PERTINENT CONSIDERATIONS SUPPORT, CERTAINLY AS
A MATTER OF ECONOMIC REASONING, VARYING STANDARDS AS TO EACH FOR THE
PROOF NECESSARY TO FULFILL THE CONDITIONS OF THAT CLAUSE.  IF THIS
DISTINCTION WERE ACCEPTED, VARIOUS TESTS OF THE ECONOMIC USEFULNESS OR
RESTRICTIVE EFFECT OF REQUIREMENTS CONTRACTS WOULD BECOME RELEVANT. 
AMONG THEM WOULD BE EVIDENCE THAT COMPETITION HAS FLOURISHED DESPITE
USE OF THE CONTRACTS, AND UNDER THIS TEST MUCH OF THE EVIDENCE TENDERED
BY APPELLANT IN THIS CASE WOULD BE IMPORTANT.  SEE, AS EXAMPLES OF THE
CONSIDERATION OF SUCH EVIDENCE, B.S. PEARSALL BUTTER CO. V. FEDERAL
TRADE COMM'N, 292 FED. 720(C.A.7TH CIR.); PICK MFG. CO. V. GENERAL
MOTORS CORP., 80 F.2D 641, 644(C.A.7TH CIR.), AFF'D, 299 U.S. 3. 
LIKEWISE BEARING ON WHETHER OR NOT THE CONTRACTS WERE BEING USED TO
SUPPRESS COMPETITION, WOULD BE THE CONFORMITY OF THE LENGTH OF THEIR
TERM TO THE REASONABLE REQUIREMENTS OF THE FIELD OF COMMERCE IN WHICH
THEY WERE USED.  SEE CORN PRODUCTS REFINING CO. V. FEDERAL TRADE
COMM'N, 144 F.2D 211, 220(C.A.7TH CIR.), AFF'D, 324 U.S. 726; UNITED
STATES V. PULLMAN CO., 50 F.SUPP.  123, 127-29(E.D. PA.).  STILL
ANOTHER TEST WOULD BE THE STATUS OF THE DEFENDANT AS A STRUGGLING
NEWCOMER OR AN ESTABLISHED COMPETITOR.  PERHAPS MOST IMPORTANT,
HOWEVER, WOULD BE THE DEFENDANT'S DEGREE OF MARKET CONTROL, FOR THE
GREATER THE DOMINANCE OF HIS POSITION, THE STRONGER THE INFERENCE THAT
AN IMPORTANT FACTOR IN ATTAINING AND MAINTAINING THAT POSITION HAS BEEN
THE USE OF REQUIREMENTS CONTRACTS TO STIFLE COMPETITION RATHER THAN TO
SERVE LEGITIMATE ECONOMIC NEEDS.  SEE STANDARD FASHION CO. V. MAGRANE
HOUSTON CO., SUPRA, 258 U.S. 346; FASHION ORIGINATORS' GUILD V. FEDERAL
TRADE COMM'N, SUPRA, 312 U.S. 457.  FN11 

YET SERIOUS DIFFICULTIES WOULD ATTEND THE ATTEMPT TO APPLY THESE
TESTS.  WE MAY ASSUME, AS DID THE COURT BELOW, THAT NO IMPROVEMENT OF
STANDARD'S COMPETITIVE POSITION HAS COINCIDED WITH THE PERIOD DURING
WHICH THE REQUIREMENTS-CONTRACT SYSTEM OF DISTRIBUTION HAS BEEN IN
EFFECT.  WE MAY ASSUME FURTHER THAT THE DURATION OF THE CONTRACTS IS
NOT EXCESSIVE AND THAT STANDARD DOES NOT BY ITSELF DOMINATE THE
MARKET.  BUT STANDARD WAS A MAJOR COMPETITOR WHEN THE PRESENT SYSTEM
WAS ADOPTED, AND IT IS POSSIBLE THAT ITS POSITION WOULD HAVE
DETERIORATED BUT FOR THE ADOPTION OF THAT SYSTEM.  WHEN IT IS
REMEMBERED THAT ALL THE OTHER MAJOR SUPPLIERS HAVE ALSO BEEN USING
REQUIREMENTS CONTRACTS, AND WHEN IT IS NOTED THAT THE RELATIVE SHARE OF
THE BUSINESS WHICH FELL TO EACH HAS REMAINED ABOUT THE SAME DURING THE
PERIOD OF THEIR USE,  FN12  IT WOULD NOT BE FARFETCHED TO INFER THAT
THEIR EFFECT HAS BEEN TO ENABLE THE ESTABLISHED SUPPLIERS INDIVIDUALLY
TO MAINTAIN THEIR OWN STANDING AND AT THE SAME TIME COLLECTIVELY, EVEN
THOUGH NOT COLLUSIVELY, TO PREVENT A LATE ARRIVAL FROM WRESTING AWAY
MORE THAN AN INSIGNIFICANT PORTION OF THE MARKET.  IF, INDEED, THIS
WERE A RESULT OF THE SYSTEM, IT WOULD SEEM UNIMPORTANT THAT A SHORT-RUN
BY-PRODUCT OF STABILITY MAY HAVE BEEN GREATER EFFICIENCY AND LOWER
COSTS, FOR IT IS THE THEORY OF THE ANTITRUST LAWS THAT THE LONG-RUN
ADVANTAGE OF THE COMMUNITY DEPENDS UPON THE REMOVAL OF RESTRAINTS UPON
COMPETITION.  SEE FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N,
312 U.S. 457, 467-68; UNITED STATES V. ALUMINUM CO. OF AMERICA, 148
F.2D 416, 427-29(C.A.2D CIR.). 

MOREOVER, TO DEMAND THAT BARE INFERENCE BE SUPPORTED BY EVIDENCE AS
TO WHAT WOULD HAVE HAPPENED BUT FOR THE ADOPTION OF THE PRACTICE THAT
WAS IN FACT ADOPTED OR TO REQUIRE FIRM PREDICTION OF AN INCREASE OF
COMPETITION AS A PROBABLE RESULT OF ORDERING THE ABANDONMENT OF THE
PRACTICE, WOULD BE A STANDARD OF PROOF, IF NOT VIRTUALLY IMPOSSIBLE TO
MEET, AT LEAST MOST ILL-SUITED FOR ASCERTAINMENT BY COURTS.  FN13
BEFORE THE SYSTEM OF REQUIREMENTS CONTRACTS WAS INSTITUTED, STANDARD
SOLD GASOLINE THROUGH INDEPENDENT SERVICE-STATION OPERATORS AS ITS
AGENTS, AND IT MIGHT REVERT TO THIS SYSTEM IF THE JUDGMENT BELOW WERE
SUSTAINED.  OR IT MIGHT, AS OPPORTUNITY PRESENTED ITSELF, ADD SERVICE
STATIONS NOW OPERATED INDEPENDENTLY TO THE NUMBER MANAGED BY ITS
SUBSIDIARY, STANDARD STATIONS, INC. FROM THE POINT OF VIEW OF
MAINTAINING OR EXTENDING COMPETITIVE ADVANTAGE, EITHER OF THESE
ALTERNATIVES WOULD BE JUST AS EFFECTIVE AS THE USE OF REQUIREMENTS
CONTRACTS, ALTHOUGH OF COURSE INSOFAR AS THEY RESULTED IN A TENDENCY TO
MONOPOLY THEY MIGHT ENCOUNTER THE ANTI-MONOPOLY PROVISIONS OF THE
SHERMAN ACT.  SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D
416(C.A.2D CIR.).  AS APPELLANT POINTS OUT, DEALERS MIGHT ORDER
PETROLEUM PRODUCTS IN QUANTITIES SUFFICIENT TO MEET THEIR ESTIMATED
NEEDS FOR THE PERIOD DURING WHICH REQUIREMENTS CONTRACTS ARE NOW
EFFECTIVE, AND EVEN THAT WOULD FORECLOSE COMPETITION TO SOME DEGREE. 
SO LONG AS THESE DIVERSE WAYS OF RESTRICTING COMPETITION REMAIN OPEN,
THEREFORE, THERE CAN BE NO CONCLUSIVE PROOF THAT THE USE OF
REQUIREMENTS CONTRACTS HAS ACTUALLY REDUCED COMPETITION BELOW THE LEVEL
WHICH IT WOULD OTHERWISE HAVE REACHED OR MAINTAINED.    WE ARE DEALING
HERE WITH A PARTICULAR FORM OF AGREEMENT SPECIFIED BY SEC. 3 AND NOT
WITH DIFFERENT ARRANGEMENTS, BY WAY OF INTEGRATION OR OTHERWISE, THAT
MAY TEND TO LESSEN COMPETITION.  TO INTERPRET THAT SECTION AS REQUIRING
PROOF THAT COMPETITION HAS ACTUALLY DIMINISHED WOULD MAKE ITS VERY
EXPLICITNESS A MEANS OF CONFERRING IMMUNITY UPON THE PRACTICES WHICH IT
SINGLES OUT.  CONGRESS HAS AUTHORITATIVELY DETERMINED THAT THOSE
PRACTICES ARE DETRIMENTAL WHERE THEIR EFFECT MAY BE TO LESSEN
COMPETITION.  IT HAS NOT LEFT AT LARGE FOR DETERMINATION IN EACH CASE
THE ULTIMATE DEMANDS OF THE "PUBLIC INTEREST," AS THE ENGLISH
LAWMAKERS, CONSIDERING AND FINDING INAPPLICABLE TO THEIR OWN SITUATION
OUR EXPERIENCE WITH THE SPECIFIC PROHIBITION OF TRADE PRACTICES
LEGISLATIVELY DETERMINED TO BE UNDESIRABLE, HAVE RECENTLY CHOSEN TO DO.
FN14  THOUGH IT MAY BE THAT SUCH AN ALTERNATIVE TO THE PRESENT SYSTEM
AS BUYING OUT INDEPENDENT DEALERS AND MAKING THEM DEPENDENT EMPLOYEES
OF STANDARD STATIONS, INC., WOULD BE A GREATER DETRIMENT TO THE PUBLIC
INTEREST THAN PERPETUATION OF THE SYSTEM, THIS IS AN ISSUE, LIKE THE
CHOICE BETWEEN GREATER EFFICIENCY AND FREER COMPETITION, THAT HAS NOT
BEEN SUBMITTED TO OUR DECISION.  WE ARE FACED, NOT WITH A BROADLY
PHRASED EXPRESSION OF GENERAL POLICY, BUT MERELY A BROADLY PHRASED
QUALIFICATION OF AN OTHERWISE NARROWLY DIRECTED STATUTORY PROVISION. 

IN THIS CONNECTION IT IS SIGNIFICANT THAT THE QUALIFYING LANGUAGE WAS
NOT ADDED UNTIL AFTER THE HOUSE AND SENATE BILLS REACHED CONFERENCE. 
THE CONFEREES RESPONSIBLE FOR ADDING THAT LANGUAGE WERE AT PAINS, IN
ANSWERING PROTESTATIONS THAT THE QUALIFYING CLAUSE SERIOUSLY WEAKENED
THE SECTION, TO DISCLAIM ANY INTENTION SERIOUSLY TO AUGMENT THE BURDEN
OF PROOF TO BE SUSTAINED IN ESTABLISHING VIOLATION OF IT.  FN15  IT
SEEMS HARDLY LIKELY THAT, HAVING WITH ONE HAND SET UP AN EXPRESS
PROHIBITION AGAINST A PRACTICE THOUGHT TO BE BEYOND THE REACH OF THE
SHERMAN ACT, CONGRESS MEANT, WITH THE OTHER HAND, TO REESTABLISH THE
NECESSITY OF MEETING THE SAME TESTS OF DETRIMENT TO THE PUBLIC INTEREST
AS THAT ACT HAD BEEN INTERPRETED AS REQUIRING.  FN16  YET THE ECONOMIC
INVESTIGATION WHICH APPELLANT WOULD HAVE US REQUIRE IS OF THE SAME
BROAD SCOPE AS WAS ADUMBRATED WITH REFERENCE TO UNREASONABLE RESTRAINTS
OF TRADE IN CHICAGO BOARD OF TRADE V. UNITED STATES, 246 U.S. 231. 
FN17  TO INSIST UPON SUCH AN INVESTIGATION WOULD BE TO STULTIFY THE
FORCE OF CONGRESS' DECLARATION THAT REQUIREMENTS CONTRACTS ARE TO BE
PROHIBITED WHEREVER THEIR EFFECT "MAY BE" TO SUBSTANTIALLY LESSEN
COMPETITION.  IF IN FACT IT IS ECONOMICALLY DESIRABLE FOR SERVICE
STATIONS TO CONFINE THEMSELVES TO THE SALE OF THE PETROLEUM PRODUCTS OF
A SINGLE SUPPLIER, THEY WILL CONTINUE TO DO SO THOUGH NOT BOUND BY
CONTRACT, AND IF IN FACT IT IS IMPORTANT TO RETAIL DEALERS TO ASSURE
THE SUPPLY OF THEIR REQUIREMENTS BY OBTAINING THE COMMITMENT OF A
SINGLE SUPPLIER TO FULFILL THEM, COMPETITION FOR THEIR PATRONAGE SHOULD
ENABLE THEM TO INSIST UPON SUCH AN ARRANGEMENT WITHOUT BINDING THEM TO
REFRAIN FROM LOOKING ELSEWHERE. 

WE CONCLUDE, THEREFORE, THAT THE QUALIFYING CLAUSE OF SEC. 3 IS
SATISFIED BY PROOF THAT COMPETITION HAS BEEN FORECLOSED IN A
SUBSTANTIAL SHARE OF THE LINE OF COMMERCE AFFECTED.  IT CANNOT BE
GAINSAID THAT OBSERVANCE BY A DEALER OF HIS REQUIREMENTS CONTRACT WITH
STANDARD DOES EFFECTIVELY FORECLOSE WHATEVER OPPORTUNITY THERE MIGHT BE
FOR COMPETING SUPPLIERS TO ATTRACT HIS PATRONAGE, AND IT IS CLEAR THAT
THE AFFECTED PROPORTION OF RETAIL SALES OF PETROLEUM PRODUCTS IS
SUBSTANTIAL.  IN VIEW OF THE WIDESPREAD ADOPTION OF SUCH CONTRACTS BY
STANDARD'S COMPETITORS AND THE AVAILABILITY OF ALTERNATIVE WAYS OF
OBTAINING AN ASSURED MARKET, EVIDENCE THAT COMPETITIVE ACTIVITY HAS NOT
ACTUALLY DECLINED IS INCONCLUSIVE.  STANDARD'S USE OF THE CONTRACTS
CREATES JUST SUCH A POTENTIAL CLOG ON COMPETITION AS IT WAS THE PURPOSE
OF SEC. 3 TO REMOVE WHEREVER, WERE IT TO BECOME ACTUAL, IT WOULD IMPEDE
A SUBSTANTIAL AMOUNT OF COMPETITIVE ACTIVITY. 

SINCE THE DECREE BELOW IS SUSTAINED BY OUR INTERPRETATION OF SEC. 3
OF THE CLAYTON ACT, WE NEED NOT GO ON TO CONSIDER WHETHER IT MIGHT ALSO
BE SUSTAINED BY SEC. 1 OF THE SHERMAN ACT. 

ONE LAST POINT REMAINS TO BE DISPOSED OF.  APPELLANT CONTENDS THAT
ITS REQUIREMENTS CONTRACTS WITH CALIFORNIA DEALERS, BECAUSE NEARLY ALL
THE PRODUCTS SOLD TO THEM ARE PRODUCED IN CALIFORNIA, DO NOT
SUBSTANTIALLY AFFECT INTERSTATE COMMERCE AND THEREFORE SHOULD HAVE BEEN
EXEMPTED FROM THE DECREE.  IT FINDS SUPPORT FOR THIS CONTENTION IN
ADDYSTON PIPE & STEEL CO. V. UNITED STATES, 175 U.S. 211, 247.  BUT THE
EFFECT OF APPELLANT'S REQUIREMENTS CONTRACTS WITH CALIFORNIA RETAIL
DEALERS IS TO PREVENT THEM FROM DEALING WITH SUPPLIERS FROM OUTSIDE THE
STATE AS WELL AS WITHIN THE STATE AND IS THUS TO LESSEN COMPETITION IN
BOTH INTERSTATE AND INTRASTATE COMMERCE.  APPELLANT HAS NOT SUGGESTED
THAT IF THESE DEALERS WERE NOT BOUND BY THEIR CONTRACTS WITH IT THAT
THEY WOULD CONTINUE TO PURCHASE ONLY PRODUCTS ORIGINATING WITHIN THE
STATE.  THE ADDYSTON CASE, ON THE OTHER HAND, DEALT NOT WITH THE
DIMINUTION OF COMPETITION BETWEEN SUPPLIERS BROUGHT ABOUT BY THE ACTION
OF ONE AT THE EXPENSE OF THE REST, WHETHER WITHIN OR WITHOUT THE STATE,
BUT A COMBINATION AMONG THEM TO RESTRAIN COMPETITION.  MODIFICATION OF
THE DECREE WAS REQUIRED ONLY TO MAKE CLEAR THAT IT DID NOT REACH A
COMBINATION AMONG THE DEFENDANTS DOING BUSINESS IN A SINGLE STATE WHICH
WAS CONFINED TO TRANSACTIONS TAKING PLACE WITHIN THAT SAME STATE. 

THE JUDGMENT BELOW IS AFFIRMED. 

FN1  STANDARD STATIONS, INC., HAS NO INDEPENDENT STATUS IN THESE
PROCEEDINGS; SINCE 1944 ITS ACTIVITIES HAVE BEEN CONFINED TO MANAGING
SERVICE STATIONS OWNED BY THE STANDARD OIL CO. OF CALIFORNIA. 

FN2  "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 HEREBY DECLARED TO BE ILLEGAL:  ...
"  26 STAT. 209, AS AMENDED, 50 STAT. 693, 15 U.S.C. SEC. 1. 

FN3  "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 ANY TERRITORY THEREOF OR THE
DISTRICT OF COLUMBIA OR ANY INSULAR POSSESSION OR OTHER PLACE UNDER THE
JURISDICTION OF 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."  38
STAT. 731, 15 U.S.C. SEC. 14. 

FN4  AFTER THE CLAYTON BILL, H.R. 15657, 63D CONG., 2D SESS., HAD
PASSED THE HOUSE, THE SENATE STRUCK SEC. 4, THE SECTION PROHIBITING
TYING CLAUSES AND REQUIREMENTS CONTRACTS, ON THE GROUND THAT SUCH
PRACTICES WERE SUBJECT TO CONDEMNATION BY THE FEDERAL TRADE COMMISSION
UNDER THE THEN PENDING TRADE COMMISSION BILL.  IN SUPPORT OF A MOTION
TO RECONSIDER THIS VOTE, SENATOR REED OF MISSOURI ARGUED THAT THE TRADE
COMMISSION WOULD BE UNLIKELY TO OUTLAW AGREEMENTS OF A TYPE HELD BY
THIS COURT, IN HENRY V. A.B. DICK CO., 224 U.S. 1, NOT TO BE IN
VIOLATION OF THE SHERMAN ACT.  SEE 51 CONG. REC. 14088, 14090-92.  THE
MOTION WAS AGREED TO.  ID. AT 14223. 

FN5  IT IS CLEAR, OF COURSE, THAT THE "LINE OF COMMERCE" AFFECTED
NEED NOT BE NATIONWIDE, AT LEAST WHERE THE PURCHASERS CANNOT, AS A
PRACTICAL MATTER, TURN TO SUPPLIERS OUTSIDE THEIR OWN AREA.  ALTHOUGH
THE EFFECT ON COMPETITION WILL BE QUANTITATIVELY THE SAME IF A GIVEN
VOLUME OF THE INDUSTRY'S BUSINESS IS ASSUMED TO BE COVERED, WHETHER OR
NOT THE AFFECTED SOURCES OF SUPPLY ARE THOSE OF THE INDUSTRY AS A WHOLE
OR ONLY THOSE OF A PARTICULAR REGION, A PURELY QUANTITATIVE MEASURE OF
THIS EFFECT IS INADEQUATE BECAUSE THE NARROWER THE AREA OF COMPETITION,
THE GREATER THE COMPARATIVE EFFECT ON THE AREA'S COMPETITORS.  SINCE IT
IS THE PRESERVATION OF COMPETITION WHICH IS AT STAKE, THE SIGNIFICANT
PROPORTION OF COVERAGE IS THAT WITHIN THE AREA OF EFFECTIVE
COMPETITION.  CF. INDIANA FARMER'S GUIDE PUBLISHING CO. V. PRAIRIE
FARMER PUBLISHING CO., 293 U.S. 268, 279; UNITED STATES V. YELLOW CAB
CO., 332 U.S. 218, 226.  THE CRITERIA OF SUBSTANTIALITY DEEMED RELEVANT
IN CASES INVOLVING A NATIONWIDE MARKET ARE THUS ALSO RELEVANT IN
MEASURING THE EFFECT OF STANDARD'S REQUIREMENTS CONTRACTS IN THE SEVEN
STATE WESTERN AREA. 

FN6  STANDARD URGES THAT THE EFFECT OF ITS CONTRACTS IS SIMILARLY
CONFINED IN VIEW OF THE FACT THAT THEY APPLY NOT TO ALL SALES BY A
DEALER BUT ONLY TO THOSE MADE THROUGH A DESIGNATED SERVICE STATION. 
PUTTING ASIDE THE FACT THAT IT DOES NOT APPEAR THAT DEALERS COMMONLY
OWN MORE THAN ONE SERVICE STATION, THERE IS MARKED DIFFERENCE BETWEEN A
CONTRACT WHICH CONFINES AN ENTIRE RETAIL OUTLET TO THE SALE OF A SINGLE
BRAND AND A CONTRACT WHICH MERELY CONFINES THE USE OF A DISPENSING
MECHANISM TO A SINGLE BRAND:  SERVICE-STATION SITES, AND THEREFORE
RETAIL OUTLETS, ARE LIMITED IN NUMBER; THE NUMBER OF PUMPS WHICH A
DEALER MAY CHOOSE TO SET UP IS NOT, OR SO, AT LEAST, THE COURT ASSUMED
IN THE SINCLAIR CASE.  IT IS REASONABLE TO ASSUME, THEREFORE, THAT
COMPETITION BETWEEN SUPPLIERS IS DIRECTED RATHER TOWARD EXCLUSIVE
CONTRACTS WITH THE MAXIMUM NUMBER OF STRATEGICALLY LOCATED OUTLETS THAN
TOWARD EXCLUSIVE ARRANGEMENTS WITH DEALERS AS SUCH. 

FN7  THE COURT CONSIDERED AND FOUND INADEQUATE DEFENDANT'S ATTEMPT TO
ESTABLISH THAT THE SUCCESSFUL USE OF THE MACHINES DEPENDED UPON A
QUALITY OF SALT WHICH ONLY IT COULD SUPPLY, BUT THE COURT'S WILLINGNESS
TO CONSIDER SUCH EVIDENCE DOES NOT WEAKEN THE HOLDING THAT COVERAGE OF
A MORE THAN INSIGNIFICANT VOLUME OF BUSINESS BY SUCH TYING CLAUSES IS
AN ADEQUATE BASIS FOR FINDING A LESSENING OF COMPETITION OR A TENDENCY
TO MONOPOLY. 

FN8  IT MAY BE NOTED IN PASSING THAT THE EXCLUSIVE SUPPLY PROVISIONS
FOR TIRES, TUBES, BATTERIES, AND OTHER ACCESSORIES WHICH ARE A PART OF
SOME OF STANDARD'S CONTRACTS WITH DEALERS WHO HAVE ALSO AGREED TO
PURCHASE THEIR REQUIREMENTS OF PETROLEUM PRODUCTS SHOULD PERHAPS BE
CONSIDERED, AS A MATTER OF CLASSIFICATION, TYING RATHER THAN
REQUIREMENTS AGREEMENTS. 

FN9  THIS ADVANTAGE IS NOT CONFERRED BY STANDARD'S CONTRACTS, EACH OF
WHICH PROVIDES THAT THE PRICE TO BE PAID BY THE DEALER IS TO BE THE
"COMPANY'S POSTED PRICE TO ITS DEALERS GENERALLY AT TIME AND PLACE OF
DELIVERY." 

FN10  SOME MEMBERS OF THE HOUSE OPPOSED SEC. 4 OF H.R. 15657, 63D
CONG., 2D SESS.  (THE EQUIVALENT OF WHAT IS NOW SEC. 3) AS DENYING THIS
BENEFIT TO THE NEWCOMER, SEE 51 CONG. REC. 9267, AND REPRESENTATIVE
MCCOY OF NEW JERSEY OFFERED AN AMENDMENT, ID. AT 9398, TO MAKE THE
AGREEMENTS IN QUESTION ILLEGAL ONLY WHEN ENTERED "WITH THE INTENT OF
OBTAINING OR ESTABLISHING A MONOPOLY OR OF DESTROYING THE BUSINESS OF A
COMPETITOR," WHICH HE AND OTHERS SUPPORTED ON THIS GROUND.  SEE ID. AT
9400-02, 9409.  THE AMENDMENT WAS REJECTED.  ID. AT 9410. 

FN11  FOR AN EXPOSITION OF THE CONSIDERATIONS HERE SUMMARIZED, SEE
STOCKHAUSEN, THE COMMERCIAL AND ANTI-TRUST ASPECTS OF TERM AND
REQUIREMENTS CONTRACTS, 23 N.Y.U.L.Q. REV. 412, 417-31(1948). 

FN12  UPON THE REQUEST OF STANDARD, ITS SIX LARGEST COMPETITORS
FILLED OUT QUESTIONNAIRES SHOWING THE NUMBER OF RETAIL DEALERS WHO
DISTRIBUTED THEIR PRODUCTS DURING THE YEARS 1937 THROUGH 1946.  THOUGH
THEIR POSITION RELATIVE TO EACH OTHER HAS FLUCTUATED, THE FIGURES SHOW
THAT AS A GROUP THEY HAVE MAINTAINED OR IMPROVED THEIR CONTROL OF THE
MARKET.  TOGETHER WITH STANDARD, THESE SIX COMPANIES DISTRIBUTED, AS OF
1946, THROUGH 26,439 OF APPROXIMATELY 35,000 INDEPENDENT SERVICE
STATIONS IN THE WESTERN AREA. 

FN13  THE DUAL SYSTEM OF ENFORCEMENT PROVIDED FOR BY THE CLAYTON ACT
MUST HAVE CONTEMPLATED STANDARDS OF PROOF CAPABLE OF ADMINISTRATION BY
THE COURTS AS WELL AS BY THE FEDERAL TRADE COMMISSION AND OTHER
DESIGNATED AGENCIES.  SEE 38 STAT. 734, 736, AS AMENDED, 15 U.S.C.
SECS. 21, 25.  OUR INTERPRETATION OF THE ACT, THEREFORE, SHOULD
RECOGNIZE THAT AN APPRAISAL OF ECONOMIC DATA WHICH MIGHT BE PRACTICABLE
IF ONLY THE LATTER WERE FACED WITH THE TASK MAY BE QUITE OTHERWISE FOR
JUDGES UNEQUIPPED FOR IT EITHER BY EXPERIENCE OR BY THE AVAILABILITY OF
SKILLED ASSISTANCE. 

FN14  THE MONOPOLIES AND RESTRICTIVE PRACTICES (INQUIRY AND CONTROL)
ACT, 1948, ADOPTED JULY 30, 1948, PROVIDES, AS ONE MODE OF PROCEDURE,
FOR REFERENCE OF RESTRICTIVE TRADE PRACTICES BY THE BOARD OF TRADE TO A
PERMANENT COMMISSION FOR INVESTIGATION IN ORDER TO DETERMINE "WHETHER
ANY SUCH THINGS AS ARE SPECIFIED IN THE REFERENCE  ...  OPERATE OR MAY
BE EXPECTED TO OPERATE AGAINST THE PUBLIC INTEREST."  11 & 12 GEO. VI,
C. 66, SEC. 6(2).  THE ACT DOES NOT DEFINE WHAT IS MEANT BY "THE PUBLIC
INTEREST," ALTHOUGH IN SEC. 14 IT SETS UP BROAD CRITERIA TO BE TAKEN
INTO ACCOUNT.  IT IS NOTEWORTHY, HOWEVER, THAT, HAVING ESTABLISHED SO
BROAD A BASIS FOR INVESTIGATION, THE ACT ENTRUSTS THE TASK TO AN EXPERT
BODY WITHOUT PROVISION FOR JUDICIAL REVIEW.  THIS APPROACH WAS
REPEATEDLY CONTRASTED IN DEBATE WITH THAT OF THE UNITED STATES.  SEE
449 H.C. DEB.  2046-47, 2058, 2063(5TH SER.  1948); 157 H.L. DEB. 
350(5TH SER.  1948).  COMPARE SEC. 5(2) OF THE INTERSTATE COMMERCE ACT,
AS AMENDED, 41 STAT. 480, 49 U.S.C. SEC. 5(2), REFERRING TO THE
INTERSTATE COMMERCE COMMISSION DETERMINATION OF THE MORE DEFINED ISSUES
OF "PUBLIC INTEREST" UNDER REVIEW IN NEW YORK CENTRAL SECURITIES CORP.
V. UNITED STATES, 287 U.S. 12, 24; UNITED STATES V. LOWDEN, 308 U.S.
225.    FN15  REPRESENTATIVE FLOYD OF ARKANSAS, ONE OF THE MANAGERS ON
THE PART OF THE HOUSE, EXPLAINED THE USE OF THE WORD "SUBSTANTIALLY" AS
DERIVING FROM THE OPINION OF THIS COURT IN ADDYSTON PIPE & STEEL CO. V.
UNITED STATES, 175 U.S. 211, AND QUOTED THE PASSAGE FROM ID. AT 229 IN
WHICH IT IS SAID THAT "THE POWER OF CONGRESS TO REGULATE INTERSTATE
COMMERCE COMPRISES THE RIGHT TO ENACT A LAW PROHIBITING THE CITIZEN
FROM ENTERING INTO THOSE PRIVATE CONTRACTS WHICH DIRECTLY AND
SUBSTANTIALLY, AND NOT MERELY INDIRECTLY, REMOTELY, INCIDENTALLY AND
COLLATERALLY, REGULATE TO A GREATER OR LESS DEGREE COMMERCE AMONG THE
STATES."  51 CONG. REC. 16317-18.  SENATOR CHILTON, ONE OF THE MANAGERS
ON THE PART OF THE SENATE, DENYING THAT THE CLAUSE WEAKENED THE BILL,
STATED THAT THE WORDS "WHERE THE EFFECT MAY BE" MEAN "WHERE IT IS
POSSIBLE FOR THE EFFECT TO BE."  ID. AT 16002.  SENATOR OVERMAN, ALSO A
SENATE CONFEREE, ARGUED THAT EVEN THE ELIMINATION OF COMPETITION IN A
SINGLE TOWN WOULD SUBSTANTIALLY LESSEN COMPETITION.  ID. AT 15935. 

FN16  SEE UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 179:
"APPLYING THE RULE OF REASON TO THE CONSTRUCTION OF THE STATUTE, IT WAS
HELD IN THE STANDARD OIL CASE THAT AS THE WORDS 'RESTRAINT OF TRADE' AT
COMMON LAW AND IN THE LAW OF THIS COUNTRY AT THE TIME OF THE ADOPTION
OF THE ANTI-TRUST ACT ONLY EMBRACED ACTS OR CONTRACTS OR AGREEMENTS OR
COMBINATIONS WHICH OPERATED TO THE PREJUDICE OF THE PUBLIC INTERESTS BY
UNDULY RESTRICTING COMPETITION OR UNDULY OBSTRUCTING THE DUE COURSE OF
TRADE OR WHICH, EITHER BECAUSE OF THEIR INHERENT NATURE OR EFFECT OR
BECAUSE OF THE EVIDENT PURPOSE OF THE ACTS, ETC., INJURIOUSLY
RESTRAINED TRADE, THAT THE WORDS AS USED IN THE STATUTE WERE DESIGNED
TO HAVE AN DID HAVE BUT A LIKE SIGNIFICANCE."  SEE ALSO HANDLER, A
STUDY OF THE CONSTRUCTION AND ENFORCEMENT OF THE FEDERAL ANTITRUST LAWS
3-9(T.N.E.C. MONOGRAPH NO. 38, 1941).  COMPARE SEC. 4 OF THE AUSTRALIAN
INDUSTRIES PRESERVATION ACT, 1906, WHICH FORBIDS COMBINATIONS ENTERED
INTO "WITH INTENT TO RESTRAIN TRADE OR COMMERCE TO THE DETRIMENT OF THE
PUBLIC," CONSTRUED IN ATTORNEY GENERAL V. ADELAIDE S.S. CO., (1913)
A.C. 781, AS REQUIRING PROOF OF ACTUAL ECONOMIC DETRIMENT. 

FN17  "THE TRUE TEST OF LEGALITY IS WHETHER THE RESTRAINT IMPOSED IS
SUCH AS MERELY REGULATES AND PERHAPS THEREBY PROMOTES COMPETITION OR
WHETHER IT IS SUCH AS MAY SUPPRESS OR EVEN DESTROY COMPETITION.  TO
DETERMINE THAT QUESTION THE COURT MUST ORDINARILY CONSIDER THE FACTS
PECULIAR TO THE BUSINESS TO WHICH THE RESTRAINT IS APPLIED; ITS
CONDITION BEFORE AND AFTER THE RESTRAINT WAS IMPOSED; THE NATURE OF THE
RESTRAINT AND ITS EFFECT, ACTUAL OR PROBABLE.  THE HISTORY OF THE
RESTRAINT, THE EVIL BELIEVED TO EXIST, THE REASON FOR ADOPTING THE
PARTICULAR REMEDY, THE PURPOSE OR END SOUGHT TO BE ATTAINED, ARE ALL
RELEVANT FACTS."  246 U.S. AT 238. 

MR. JUSTICE DOUGLAS. 

THE ECONOMIC THEORIES WHICH THE COURT HAS READ INTO THE ANTI-TRUST
LAWS HAVE FAVORED RATHER THAN DISCOURAGED MONOPOLY.  AS A RESULT OF THE
BIG BUSINESS PHILOSOPHY UNDERLYING UNITED STATES V. UNITED SHOE
MACHINERY CO., 247 U.S. 32; UNITED STATES V. UNITED STATES STEEL CORP.,
251 U.S. 417; UNITED STATES V. INTERNATIONAL HARVESTER CO., 274 U.S.
693, BIG BUSINESS HAS BECOME BIGGER AND BIGGER.  MONOPOLY HAS
FLOURISHED.  CARTELS HAVE INCREASED THEIR HOLD ON THE NATION.  THE
TRUSTS WAX STRONG.  FN1  THERE IS LESS AND LESS PLACE FOR THE
INDEPENDENT. 

THE FULL FORCE OF THE ANTI-TRUST LAWS HAS NOT BEEN FELT ON OUR
ECONOMY.  IT HAS BEEN DEFLECTED.  NIGGARDLY INTERPRETATIONS HAVE ROBBED
THOSE LAWS OF MUCH OF THEIR EFFICACY.  THERE ARE EXCEPTIONS.  PRICE
FIXING IS ILLEGAL PER SE.  FN2  THE USE OF PATENTS TO OBTAIN MONOPOLIES
ON UNPATENTED ARTICLES IS CONDEMNED.  FN3  MONOPOLY THAT HAS BEEN BUILT
AS A RESULT OF UNLAWFUL TACTICS, E.G., THROUGH PRACTICES THAT ARE
RESTRAINTS OF TRADE, IS BROKEN UP.  FN4  BUT WHEN IT COMES TO
MONOPOLIES BUILT IN GENTLEMANLY WAYS - BY MERGERS, PURCHASES OF ASSETS
OR CONTROL AND THE LIKE - THE TEETH HAVE LARGELY BEEN DRAWN FROM THE
ACT. 

WE ANNOUNCED THAT THE EXISTENCE OF MONOPOLY POWER, COUPLED WITH THE
PURPOSE OR INTENT TO MONOPOLIZE, WAS UNLAWFUL.  FN5  BUT TO DATE THAT
PRINCIPLE HAS NOT SHOWN BRIGHT PROMISE IN APPLICATION.  FN6  UNDER THE
GUISE OF INCREASED EFFICIENCY BIG BUSINESS HAS RECEIVED APPROVAL FOR
EASY GROWTH.  UNITED STATES V. COLUMBIA STEEL CO., 334 U.S. 495,
REPRESENTS THE CURRENT ATTITUDE OF THE COURT ON THIS PROBLEM.  IN THAT
CASE UNITED STATES STEEL - THE GIANT OF THE INDUSTRY - WAS ALLOWED TO
FASTEN ITS TENTACLES TIGHTER ON THE ECONOMY BY ACQUIRING THE ASSETS OF
A STEEL COMPANY IN THE FAR WEST WHERE COMPETITION WAS BEGINNING TO
DEVELOP. 

THE INCREASED CONCENTRATION OF INDUSTRIAL POWER IN THE HANDS OF A FEW
HAS CHANGED HABITS OF THOUGHT.  A NEW AGE HAS BEEN INTRODUCED.  IT IS
MORE AND MORE AN AGE OF "MONOPOLY COMPETITION."  MONOPOLY COMPETITION
IS A REGIME OF FRIENDLY ALLIANCES, OF A QUICK AND EASY ACCOMMODATION OF
PRICES EVEN WITHOUT THE BENEFIT OF TRADE ASSOCIATIONS, OF WHAT BRANDEIS
SAID WAS EUPHEMISTICALLY CALLED "COOPERATION."  FN7  WHILE THIS IS NOT
TRUE IN ALL FIELDS, IT HAS BECOME ALARMINGLY APPARENT IN MANY. 

THE LESSONS BRANDEIS TAUGHT ON THE CURSE OF BIGNESS HAVE LARGELY BEEN
FORGOTTEN IN HIGH PLACES.  SIZE IS ALLOWED TO BECOME A MENACE TO
EXISTING AND PUTATIVE COMPETITORS.  PRICE CONTROL IS ALLOWED TO ESCAPE
THE INFLUENCES OF THE COMPETITIVE MARKET AND TO GRAVITATE INTO THE
HANDS OF THE FEW.  BUT BEYOND ALL THAT THERE IS THE EFFECT ON THE
COMMUNITY WHEN INDEPENDENTS ARE SWALLOWED UP BY THE TRUSTS AND
ENTREPRENEURS BECOME EMPLOYEES OF ABSENTEE OWNERS.  THEN THERE IS A
SERIOUS LOSS IN CITIZENSHIP.  LOCAL LEADERSHIP IS DILUTED.  HE WHO WAS
A LEADER IN THE VILLAGE BECOMES DEPENDENT ON OUTSIDERS FOR HIS ACTION
AND POLICY.  CLERKS RESPONSIBLE TO A SUPERIOR IN A DISTANT PLACE TAKE
THE PLACE OF RESIDENT PROPRIETORS BEHOLDEN TO NO ONE.  THESE ARE THE
PRICES WHICH THE NATION PAYS FOR THE ALMOST CEASELESS GROWTH IN BIGNESS
ON THE PART OF INDUSTRY. 

THESE PROBLEMS MAY NOT APPEAR ON THE SURFACE TO HAVE RELATIONSHIP TO
THE CASE BEFORE US.  BUT THEY GO TO THE VERY HEART OF THE PROBLEM. 

IT IS COMMON KNOWLEDGE THAT A HOST OF FILLING STATIONS IN THE COUNTRY
ARE LOCALLY OWNED AND OPERATED.  OTHERS ARE OWNED AND OPERATED BY THE
BIG OIL COMPANIES.  THIS CASE INVOLVES DIRECTLY ONLY THE FORMER.  IT
PERTAINS TO REQUIREMENTS CONTRACTS THAT THE OIL COMPANIES MAKE WITH
THESE INDEPENDENTS.  IT IS PLAIN THAT A FILLING-STATION OWNER WHO IS
TIED TO AN OIL COMPANY FOR HIS SUPPLY OF PRODUCTS IS NOT AN AVAILABLE
CUSTOMER FOR THE PRODUCTS OF OTHER SUPPLIERS.  THE SAME IS TRUE OF A
FILLING-STATION OWNER WHO PURCHASES HIS INVENTORY A YEAR IN ADVANCE. 
HIS DEMAND IS WITHDRAWN FROM THE MARKET FOR THE DURATION OF THE
CONTRACT IN THE ONE CASE AND FOR A YEAR IN THE OTHER.  THE RESULT IN
EACH CASE IS TO LESSEN COMPETITION IF THE STANDARD IS DAY-TO-DAY
PURCHASES.  WHETHER IT IS A SUBSTANTIAL LESSENING OF COMPETITION WITHIN
THE MEANING OF THE ANTI-TRUST LAWS IS A QUESTION OF DEGREE AND MAY VARY
FROM INDUSTRY TO INDUSTRY. 

THE COURT ANSWERS THE QUESTION FOR THE OIL INDUSTRY BY A FORMULA WHICH
UNDER OUR DECISIONS PROMISES TO WIPE OUT LARGE SEGMENTS OF INDEPENDENT
FILLING-STATION OPERATORS.  THE METHOD OF DOING BUSINESS UNDER
REQUIREMENTS CONTRACTS AT LEAST KEEPS THE INDEPENDENTS ALIVE.  THEY
SURVIVE AS SMALL BUSINESS UNITS.  THE SITUATION IS NOT IDEAL FROM
EITHER THEIR POINT OF VIEW  FN8  OR THAT OF THE NATION.  BUT THE
ALTERNATIVE WHICH THE COURT OFFERS IS FAR WORSE FROM THE POINT OF VIEW
OF BOTH. 

THE ELIMINATION OF THESE REQUIREMENTS CONTRACTS SETS THE STAGE FOR
STANDARD AND THE OTHER OIL COMPANIES TO BUILD SERVICE-STATION EMPIRES
OF THEIR OWN.  THE OPINION OF THE COURT DOES MORE THAN SET THE STAGE
FOR THAT DEVELOPMENT.  IT IS AN ADVISORY OPINION AS WELL, STATING TO
THE OIL COMPANIES HOW THEY CAN WITH IMPUNITY BUILD THEIR EMPIRES.  THE
FORMULA SUGGESTED BY THE COURT IS EITHER THE USE OF THE "AGENCY"
DEVICE, WHICH IN PRACTICAL EFFECT MEANS CONTROL OF FILLING STATIONS BY
THE OIL COMPANIES (CF. FEDERAL TRADE COMMISSION V. CURTIS CO., 260 U.S.
568), OR THE OUTRIGHT ACQUISITION OF THEM BY SUBSIDIARY CORPORATIONS OR
OTHERWISE.  SEE UNITED STATES V. COLUMBIA STEEL CO., SUPRA.  UNDER THE
APPROVED JUDICIAL DOCTRINE EITHER OF THOSE DEVICES MEANS INCREASING THE
MONOPOLY OF THE OIL COMPANIES OVER THE RETAIL FIELD. 

WHEN THE CHOICE IS THUS GIVEN, I DISSENT FROM THE OUTLAWRY OF THE
REQUIREMENTS CONTRACT ON THE PRESENT FACTS.  THE EFFECT WHICH IT HAS ON
COMPETITION IN THIS FIELD IS MINOR AS COMPARED TO THE DAMAGE WHICH WILL
FLOW FROM THE JUDICIALLY APPROVED FORMULA FOR THE GROWTH OF BIGNESS
TENDERED BY THE COURT AS AN ALTERNATIVE.  OUR CHOICE MUST BE MADE ON
THE BASIS NOT OF ABSTRACTIONS BUT OF THE REALITIES OF MODERN INDUSTRIAL
LIFE. 

TODAY THERE IS VIGOROUS COMPETITION BETWEEN THE OIL COMPANIES FOR THE
MARKET.  THAT COMPETITION HAS LEFT SOME ROOM FOR THE SURVIVAL OF THE
INDEPENDENTS.  BUT WHEN THIS INDUCEMENT FOR THEIR SURVIVAL IS TAKEN
AWAY, WE CAN EXPECT THAT THE OIL COMPANIES WILL MOVE IN TO SUPPLANT
THEM WITH THEIR OWN STATIONS.  THERE WILL STILL BE COMPETITION BETWEEN
THE OIL COMPANIES.  BUT THERE WILL BE A TRAGIC LOSS TO THE NATION.  THE
SMALL, INDEPENDENT BUSINESS MAN WILL BE SUPPLANTED BY CLERKS. 
COMPETITION BETWEEN SUPPLIERS OF ACCESSORIES (WHICH IS INVOLVED IN THIS
CASE) WILL DIMINISH OR CEASE ALTOGETHER.  THE OIL COMPANIES WILL
COMMAND AN INCREASINGLY LARGER SHARE OF BOTH THE WHOLESALE AND THE
RETAIL MARKETS. 

THAT IS THE LIKELY RESULT OF TODAY'S DECISION.  THE REQUIREMENTS
CONTRACT WHICH IS DISPLACED IS RELATIVELY INNOCUOUS AS COMPARED WITH
THE VIRULENT GROWTH OF MONOPOLY POWER WHICH THE COURT ENCOURAGES.  THE
COURT DOES NOT ACT UNWITTINGLY.  IT CONSCIOUSLY PUSHES THE OIL INDUSTRY
IN THAT DIRECTION.  THE COURT APPROVES WHAT THE ANTI-TRUST LAWS WERE
DESIGNED TO PREVENT.  IT HELPS REMAKE AMERICA IN THE IMAGE OF THE
CARTELS. 

FN1  SEE FINAL REPORT AND RECOMMENDATIONS OF THE TEMPORARY NATIONAL
ECONOMIC COMMITTEE, S. DOC. NO. 35, 77TH CONG., 1ST SESS. (1941).  FOR
MORE DETAILED ANALYSES, SEE COMPETITION AND MONOPOLY IN AMERICAN
INDUSTRY (TNEC MONOGRAPH 21, 1940) PP. 299 ET SEQ.; THE STRUCTURE OF
INDUSTRY (TNEC MONOGRAPH 27, 1941) PP. 231 ET SEQ.; THE DISTRIBUTION OF
OWNERSHIP IN THE 200 LARGEST NONFINANCIAL CORPORATIONS (TNEC MONOGRAPH
29, 1940); RELATIVE EFFICIENCY OF LARGE, MEDIUM-SIZED, AND SMALL
BUSINESS (TNEC MONOGRAPH 13, 1941). 

THE MERGER AND ACQUISITION MOVEMENT, WHICH HAS BEEN EVIDENT SINCE THE
TURN OF THE CENTURY AND WHICH CONTRIBUTED TO THE SPIRALING
CONCENTRATION OF CORPORATE WEALTH INTO THE HANDS OF THE FEW, HAS NOT
ENDED.  WE ARE PRESENTLY IN THE MIDST OF A SIMILAR MOVEMENT.  SEE THE
FEDERAL TRADE COMMISSION REPORT, THE PRESENT TREND OF CORPORATE MERGERS
AND ACQUISITIONS, SEN. DOC. NO. 17, 80TH CONG., 1ST SESS. (1947), P. 6,
WHERE IT IS SHOWN THAT "THE INCREASE IN THE MERGER MOVEMENT FOLLOWING
VJ-DAY PARALLELS VERY CLOSELY THE SHARP UPWARD MOVEMENT WHICH TOOK
PLACE AT THE END OF WORLD WAR I."  THE CAUSES WHICH HAVE RECENTLY
CONTRIBUTED TO THE GROWING BIGNESS OF BIG CORPORATIONS ARE VARIED.  SEE
LYNCH, THE CONCENTRATION OF ECONOMIC POWER (1946), PP. 3-4 WHERE IT IS
SAID:  "EVEN BEFORE THE ENTRANCE OF THE UNITED STATES INTO THE WAR THE
PLACING OF DEFENSE CONTRACTS SERVED TO AUGMENT THE GROWTH OF BIGNESS IN
INDUSTRY AND TO INTENSIFY THE STRUGGLE FOR SURVIVAL BY SMALL CONCERNS. 
BY 1941 THE PATTERN OF DEFENSE CONTRACTS WHICH, WITH MODIFICATIONS, WAS
TO REMAIN FOR THE DURATION OF THE WAR HAD BEEN ESTABLISHED.  IT IS
REPORTED THAT IN THAT YEAR FIFTY-SIX FIRMS, LESS THAN ONE-HALF OF 1
PERCENT OF THE MANUFACTURING ESTABLISHMENTS OF THE COUNTRY, WERE
AWARDED 75 PERCENT OF ALL THE CONTRACTS.  CONCENTRATION WAS EVEN MORE
MARKED WITHIN THIS GROUP, HOWEVER, INASMUCH AS SIX CORPORATIONS HELD 31
PERCENT OF THE TOTAL.  BETWEEN JUNE, 1940, AND MARCH, 1943, MORE THAN
100 MILLION DOLLARS WORTH OF PRIME WARSUPPLY CONTRACTS WERE AWARDED. 
SEVENTY PERCENT OF THESE WERE HELD BY THE LEADING 100 CORPORATIONS; 10
CORPORATIONS HELD 32 PERCENT, AND THE LEADING 50 HELD 60 PERCENT. 

"STUDIES BY THE UNITED STATES DEPARTMENT OF COMMERCE DURING 1943-1944
THROW ADDITIONAL LIGHT ON THIS TREND TOWARD INDUSTRIAL CONCENTRATION. 
AFTER PEARL HARBOR THE TOTAL NUMBER OF FIRMS IN BUSINESS DECLINED
PRECIPITOUSLY.  DESPITE THE WARTIME INDUSTRIAL BOOM, THE NUMBER OF
FIRMS WHICH DISCONTINUED OPERATIONS WAS GREATER THAN THAT REPLACED BY
NEW ENTRIES; IT IS ESTIMATED THAT THE NUMBER IN BUSINESS IN 1943 WAS
NEARLY 17 PERCENT LESS THAN IN 1941.  THERE ARE NUMEROUS INDICATIONS
THAT THE RELATIVE IMPORTANCE OF SMALL BUSINESS HAS DECLINED DURING THE
WAR PERIOD AND THAT THE DOMINANCE OF BIG BUSINESS HAS BECOME MORE
MARKED.  BETWEEN 1938 AND 1942 IT APPEARS THAT THE TOTAL NUMBER OF
WORKERS EMPLOYED BY 95 PERCENT OF THE NATION'S CORPORATIONS (THE
SMALLEST) DECLINED 23 PERCENT, WHEREAS THOSE EMPLOYED BY 5 PERCENT OF
THE CORPORATIONS (THE LARGEST) INCREASED 22 PERCENT.  A RELATED STUDY
INDICATES THAT BETWEEN JANUARY 1, 1941, AND JANUARY 1, 1943, BUSINESS
FIRMS EMPLOYING FEWER THAN 125 WORKERS EACH EXPERIENCED AN INCREASE IN
EMPLOYMENT OF 1 PERCENT AND AN INCREASE IN THE VALUE OF THEIR PRODUCT
(ATTRIBUTABLE PRINCIPALLY TO PRICE INCREASES) OF 16 PERCENT; DURING THE
SAME PERIOD, HOWEVER, THE INCREASE IN EMPLOYMENT BY THE LARGE
ESTABLISHMENTS EMPLOYING MORE THAN 125 WORKERS WAS 62 PERCENT AND THE
INCREASE IN THE VALUE OF THE PRODUCT, 96 PERCENT." 

FN2  SEE FOR EXAMPLE UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S.
150. 

FN3  SEE FOR EXAMPLE MERCOID CORP. V. MID-CONTINENT CO., 320 U.S.
661. 

FN4  SEE UNITED STATES V. GRIFFITH, 334 U.S. 100; SCHINE THEATRES V.
UNITED STATES, 334 U.S. 110; UNITED STATES V. PARAMOUNT PICTURES, 334
U.S. 131, 172.    THOSE CASES HAVE LARGELY EXPENDED THE FORCE OF
HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386 - AN INDEFENSIBLE
DECISION WHEREBY THE COURT ALLOWED THOSE WHO HAD BUILT ONE OF THE
TIGHTEST MONOPOLIES IN AMERICAN HISTORY LARGELY TO RETAIN THEIR ILL
GOTTEN GAINS AND CONTINUE THEIR HOLD ON THE ECONOMY.  THE PHILOSOPHY OF
THAT DECISION CAN BE SUMMED UP IN THE WORDS BRANDEIS USED TO DESCRIBE
THE DECREE EFFECTING A SO-CALLED DISSOLUTION OF THE AMERICAN TOBACCO
CO. HE SAID THAT ITS DEFENDERS "APPEAR TO HAVE DISCOVERED IN THE
CONSTITUTION A NEW IMPLIED PROHIBITION: 'WHAT MAN HAS ILLEGALLY JOINED
TOGETHER, LET NO COURT PUT ASUNDER.'"  THE CURSE OF BIGNESS (1935), P.
103. 

FN5  SEE SCHINE THEATRES V. UNITED STATES, SUPRA, PP. 129-130. 

FN6  IT SHOULD BE NOTED IN THIS CONNECTION THAT A MAJORITY OF THE
COURT COULD NOT BE OBTAINED FOR HOLDING ILLEGAL PER SE THE VERTICAL
INTEGRATION IN THE MOTION PICTURE INDUSTRY.  SEE UNITED STATES V.
PARAMOUNT PICTURES, SUPRA, PP. 173-174. 

FN7  OTHER PEOPLE'S MONEY (1933), P. 110. 

FN8  FOR THE PLIGHT OF THE INDEPENDENT SERVICE-STATION OPERATOR SEE
CONTROL OF THE PETROLEUM INDUSTRY BY MAJOR OIL COMPANIES (TNEC
MONOGRAPH NO. 39, 1941) PP. 46, 47, 52.  SEE ALSO REVIEW AND CRITICISM
ON BEHALF OF STANDARD OIL CO. (NEW JERSEY) AND SUN OIL CO. OF MONOGRAPH
NO. 39 WITH REJOINDER BY MONOGRAPH AUTHOR (TNEC MONOGRAPH 39-A, 1941). 

MR. JUSTICE JACKSON, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

I AM UNABLE TO JOIN THE JUDGMENT OR OPINION OF THE COURT FOR REASONS
I WILL STATE, BUT SHORTLY. 

CONTRACT UNLAWFUL UNLESS "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."  38 STAT. 730, 731, 15 U.S.C. SEC. 14.  IT IS
INDISPENSABLE TO THE GOVERNMENT'S CASE TO ESTABLISH THAT EITHER THE
ACTUAL OR THE PROBABLE EFFECT OF THE ACCUSED ARRANGEMENT IS TO
SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY. 

I AM UNABLE TO AGREE THAT THIS REQUIREMENT WAS MET.  TO BE SURE, THE
CONTRACTS COVER "A SUBSTANTIAL NUMBER OF OUTLETS AND A SUBSTANTIAL
AMOUNT OF PRODUCTS, WHETHER CONSIDERED COMPARATIVELY OR NOT."  78
F.SUPP.  850, 875.  BUT THAT FACT DOES NOT AUTOMATICALLY BRING THE
ACCUSED ARRANGEMENT WITHIN THE PROHIBITIONS OF THE STATUTE.  THE NUMBER
OF DEALERS AND THE VOLUME OF SALES COVERED BY THE ARRANGEMENT OF COURSE
WAS SUFFICIENT TO BE SUBSTANTIAL.  THAT IS TO SAY, THIS ARRANGEMENT
OPERATED ON ENOUGH COMMERCE TO VIOLATE THE ACT, PROVIDED ITS EFFECTS
WERE SUBSTANTIALLY TO LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY. 
BUT PROOF OF THEIR QUANTITY DOES NOT PROVE THAT THEY HAD THIS FORBIDDEN
QUALITY; AND THE ASSUMPTION THAT THEY DID, WITHOUT PROOF, SEEMS TO ME
UNWARRANTED. 

MOREOVER, THE TRIAL COURT NOT ONLY MADE THE ASSUMPTION BUT HE DID NOT
ALLOW THE DEFENDANT AFFIRMATIVELY TO SHOW THAT SUCH EFFECTS DO NOT FLOW
FROM THIS ARRANGEMENT.  SUCH EVIDENCE ON THE SUBJECT AS WAS ADMITTED
WAS NOT CONSIDERED IN REACHING THE DECISION THAT THESE CONTRACTS ARE
ILLEGAL. 

I REGARD IT AS UNFORTUNATE THAT THE CLAYTON ACT SUBMITS SUCH ECONOMIC
ISSUES TO JUDICIAL DETERMINATION.  IT NOT ONLY LEAVES THE LAW VAGUE AS
A WARNING OR GUIDE, AND DETERMINED ONLY AFTER THE EVENT, BUT THE
JUDICIAL PROCESS IS NOT WELL ADAPTED TO EXPLORATION OF SUCH INDUSTRY
WIDE, AND EVEN NATION-WIDE, QUESTIONS. 

BUT IF THEY MUST DECIDE, THE ONLY POSSIBLE WAY FOR THE COURTS TO
ARRIVE AT A FAIR DETERMINATION IS TO HEAR ALL RELEVANT EVIDENCE FROM
BOTH PARTIES AND WEIGH NOT ONLY ITS INHERENT PROBABILITIES OF VERITY
BUT ALSO COMPARE THE EXPERIENCE, DISINTERESTEDNESS AND CREDIBILITY OF
OPPOSING WITNESSES.  THIS IS A TEDIOUS PROCESS AND NOT TOO
ENLIGHTENING, BUT WITHOUT IT A JUDICIAL DECREE IS BUT A GUESS IN THE
DARK.  THAT IS ALL WE HAVE HERE AND I DO NOT THINK IT IS AN ADEQUATE
BASIS ON WHICH TO UPSET LONG-STANDING AND WIDELY PRACTICED BUSINESS
ARRANGEMENTS. 

I SHOULD THEREFORE VACATE THIS DECREE AND DIRECT THE COURT BELOW TO
COMPLETE THE CASE BY HEARING AND WEIGHING THE GOVERNMENT'S EVIDENCE AND
THAT OF DEFENDANT AS TO THE EFFECTS OF THIS DEVICE. 

HOWEVER, IF THE COURT REFUSES TO DO THAT, I CANNOT AGREE THAT THE
REQUIREMENTS CONTRACT IS PER SE AN ILLEGAL ONE UNDER THE ANTITRUST LAW,
AND THAT IS THE SUBSTANCE OF WHAT THE COURT SEEMS TO HOLD.  I AM NOT
CONVINCED THAT THE REQUIREMENTS CONTRACT AS HERE USED IS A DEVICE FOR
SUPPRESSING COMPETITION INSTEAD OF A DEVICE FOR WAGING COMPETITION.  IF
WE LOOK ONLY AT ITS EFFECT IN RELATION TO PARTICULAR RETAILERS WHO
BECOME PARTIES TO IT, IT DOES RESTRAIN THEIR FREEDOM TO PURCHASE THEIR
REQUIREMENTS ELSEWHERE AND PREVENTS OTHER COMPANIES FROM SELLING TO
THEM.  MANY CONTRACTS HAVE THE EFFECT OF TAKING A PURCHASER OUT OF THE
MARKET FOR GOODS HE ALREADY HAS BOUGHT OR CONTRACTED TO TAKE.  BUT THE
RETAILER IN THIS INDUSTRY IS ONLY A CONDUIT FROM THE OIL FIELDS TO THE
DRIVER'S TANK, A MEANS BY WHICH THE OIL COMPANIES COMPETE TO GET THE
BUSINESS OF THE ULTIMATE CONSUMER - THE MAN IN WHOSE AUTOMOBILE THE GAS
IS USED.  IT MEANS TO ME, IF I MUST DECIDE WITHOUT EVIDENCE, THAT THESE
CONTRACTS ARE AN ALMOST NECESSARY MEANS TO MAINTAIN THIS ALL-IMPORTANT
COMPETITION FOR CONSUMER BUSINESS, IN WHICH IT IS ADMITTED COMPETITION
IS KEEN.  THE RETAIL STATIONS, WHETHER INDEPENDENT OR COMPANY-OWNED,
ARE THE INSTRUMENTALITIES THROUGH WHICH COMPETITION FOR THIS ULTIMATE
MARKET IS WAGED. 

IT DOES NOT SEEM TO ME INHERENTLY TO LESSEN THIS REAL COMPETITION
WHEN AN OIL COMPANY TRIES TO ESTABLISH SUPERIOR SERVICE BY PROVIDING
THE CONSUMER WITH A RESPONSIBLE DEALER FROM WHICH THE PUBLIC CAN
PURCHASE ADEQUATE AND TIMELY SUPPLIES OF OIL, GASOLINE AND CAR
ACCESSORIES OF SOME KNOWN AND RELIABLE STANDARD OF QUALITY.  NO.
RETAILER, WHETHER AGENT OR INDEPENDENT, CAN LONG REMAIN IN BUSINESS IF
HE DOES NOT ALWAYS, AND NOT JUST INTERMITTENTLY, HAVE GAS TO SELL. 
RETAILERS' STORAGE CAPACITY USUALLY IS LIMITED AND THEY ARE IN NO
POSITION TO ACCUMULATE LARGE STOCKS.  THEY CAN TAKE GAS ONLY WHEN AND
AS THEY CAN SELL IT.  THE GOVERNMENT CAN HARDLY FORCE SOMEONE TO
CONTRACT TO STAND BY, EVER READY TO FILL FLUCTUATING DEMANDS OF DEALERS
WHO WILL NOT IN TURN UNDERTAKE TO BUY FROM THAT SUPPLIER ALL THEIR
REQUIREMENTS.  AND IT IS IMPORTANT TO THE DRIVING PUBLIC TO BE ABLE TO
RELY ON RETAILERS TO HAVE GAS TO RETAIL.  IT IS EQUALLY IMPORTANT THAT
THE WHOLESALER HAVE SOME INCENTIVE TO CARRY THE STOCKS AND HAVE THE
TRANSPORT FACILITIES TO MAKE THE IRREGULAR DELIVERIES CAUSED BY VARIED
CONSUMER DEMANDS. 

IT MAY BE THAT THE GOVERNMENT, IF REQUIRED TO DO SO, COULD PROVE THAT
THIS IS A BAD SYSTEM AND AN ILLEGAL ONE.  IT MAY BE THAT THE DEFENDANT,
IF PERMITTED TO DO SO, CAN PROVE THAT IT IS, IN ITS OVERALL ASPECTS, A
GOOD SYSTEM AND WITHIN THE LAW.  BUT ON THE PRESENT RECORD THE
GOVERNMENT HAS NOT MADE A CASE.  FN1 

IF THE COURTS ARE TO APPLY THE LASH OF THE ANTITRUST LAWS TO THE
BACKS OF BUSINESSMEN TO MAKE THEM COMPETE, WE CANNOT IN FAIRNESS ALSO
APPLY THE LASH WHENEVER THEY HIT UPON A SUCCESSFUL METHOD OF
COMPETING.  THAT, INSOFAR AS I AM PERMITTED BY THE RECORD TO LEARN THE
FACTS, APPEARS TO BE THE CASE BEFORE US.  I WOULD REVERSE. 

FN1  THE GOVERNMENT CAN DERIVE NO COMFORT FOR THIS SORT OF THING FROM
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392.  THERE THE
DEFENDANT STARTED WITH A PATENT MONOPOLY OF THE MACHINE FOR UTILIZATION
OF ITS PRODUCT.  THE CUSTOMERS, CANNERS, WERE IN EFFECT THE ULTIMATE
CONSUMERS OF SALT AS SUCH.  BUT THEY COULD GET THE ADVANTAGES OF THE
INVENTION ONLY IF THEY TIED THEMSELVES TO USE NO OTHER SALT THEREIN. 
..END :












UNITED STATES V. CORS, 337 U.S. 325 


NO. 132.  ARGUED FEBRUARY 4, 1949.  - DECIDED JUNE 13, 1949.  - 110 CT.
CL. 66, 75 F.SUPP.  235, REVERSED. 


IN MARCH, 1942, RESPONDENT PURCHASED FROM THE COAST GUARD A 47-YEAR
OLD WORN-OUT TUG.  HE REPAIRED AND IMPROVED IT AND, IN APRIL, 1942,
OBTAINED A PERMIT TO OPERATE IT AS A TOWING STEAM VESSEL IN THE COASTAL
TRADE FOR ONE YEAR.  HIS TOTAL EXPENDITURES WERE $8,574.78, PLUS HIS
OWN LABOR.  THE WAR SHIPPING ADMINISTRATION REQUISITIONED THE TUG IN
OCTOBER, 1942, UNDER SEC. 902 OF THE MERCHANT MARINE ACT OF 1936, AS
AMENDED, 46 U.S.C. SEC. 1242, AND IT WAS USED TO HEAT FUEL OIL AND PUMP
IT FROM BARGES INTO NAVAL COMBAT VESSELS.  THE COURT OF CLAIMS FOUND
THAT, PRIOR TO THE TAKING, ITS MARKET VALUE HAD BEEN ENHANCED $5,000
DUE (1) TO THE GREAT INCREASE IN SHIPPING AND HARBOR TRAFFIC BECAUSE OF
THE WAR, AND (2) TO THE GOVERNMENT'S NEED FOR VESSELS IN THE
PROSECUTION OF THE WAR.  IT AWARDED HIM A JUDGMENT BASED UPON A FAIR
MARKET VALUE OF $15,500, HOLDING THAT HE WAS ENTITLED TO NO LESS THAN
HE COULD HAVE RECEIVED ON THE MARKET FROM OTHERS THAN THE GOVERNMENT. 
HELD:  IT ERRED IN DOING SO.  PP. 325-336. 

1.  ON THE FACTS OF THIS CASE, THE REQUIREMENT OF SEC. 902(A) OF THE
MERCHANT MARINE ACT OF 1936, AS AMENDED, 46 U.S.C. SEC. 1242, THAT THE
OWNER OF ANY VESSEL REQUISITIONED THEREUNDER SHALL BE PAID "JUST
COMPENSATION  ...  BUT IN NO CASE SHALL THE VALUE OF THE PROPERTY TAKEN
OR USED BE DEEMED ENHANCED BY THE CAUSES NECESSITATING THE TAKING OR
USE," IS COTERMINOUS WITH THE JUST COMPENSATION REQUIREMENT OF THE
FIFTH AMENDMENT.  PP. 331-334. 

2.  UNDER THE PROVISIONS OF SEC. 902(A), ANY ENHANCEMENT OF VALUE
MUST BE DEDUCTED WHERE IT IS DUE (A) TO THE GOVERNMENT'S NEED OF
VESSELS WHICH HAS NECESSITATED THE TAKING, (B) TO THE PREVIOUS TAKING
OF VESSELS OF SIMILAR TYPE, OR (C) TO A PROSPECTIVE TAKING REASONABLY
PROBABLE.  P. 334. 

3.  THE ENHANCEMENT WHICH IS EXCLUDED IS THAT WHICH AROSE BEFORE AS
WELL AS AFTER THE DECLARATION OF A NATIONAL EMERGENCY ON MAY 27, 1941. 
P. 334. 

4.  THE FINDINGS OF THE COURT OF CLAIMS ARE NOT SUFFICIENT TO ENABLE
THIS COURT TO DETERMINE WHETHER ANY PART OF THE $15,500 WHICH IT FOUND
TO BE THE FAIR MARKET VALUE AT THE TIME OF TAKING INCLUDES ANY
DEDUCTIBLE ENHANCEMENT IN VALUE, SINCE THEY DO NOT SHOW WITH SUFFICIENT
PARTICULARITY WHAT WAS THE EFFECT OF THE GOVERNMENT'S ACTIVITIES IN THE
PARTICULAR MARKET.  PP. 334-336. 

5.  RESPONDENT PLAINLY WOULD BE ENTITLED TO ANY INCREASE IN VALUE DUE
TO HIS EXPENDITURE OF MONEY FOR LABOR AND MATERIALS AND HIS PERFORMANCE
OF PART OF THE LABOR.  P. 336. 

UNITED STATES V. CORS. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS AWARDED RESPONDENT A JUDGMENT FOR A VESSEL
REQUISITIONED BY THE WAR SHIPPING ADMINISTRATION AFTER THE DECLARATION
OF AN EMERGENCY BY THE PRESIDENT.  110 CT. CL. 66, 75 F.SUPP.  235. 
THIS COURT GRANTED CERTIORARI.  335 U.S. 810.  REVERSED, P. 336. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT IN THE COURT OF CLAIMS UNDER SEC. 902 OF THE MERCHANT
MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 53 STAT. 1255, 46 U.S.C.
SEC. 1242, TO RECOVER THE BALANCE OF "JUST COMPENSATION" ALLEGED TO BE
DUE RESPONDENT FROM THE UNITED STATES FOR REQUISITIONING HIS STEAM TUG,
THE MACARTHUR, IN OCTOBER, 1942.  THE TUG WAS A COAST GUARD BOAT BUILT
IN 1895 AND USED BY IT IN HARBOR DUTIES AT BALTIMORE UNTIL 1939.  IT
WAS THEN TRANSFERRED TO THE COAST GUARD BASE AT PORTLAND, MAINE.  IN
SEPTEMBER, 1941, THE COAST GUARD ADVERTISED IT FOR SALE TO THE HIGHEST
BIDDER.  RESPONDENT WAS THE HIGHEST BIDDER, PURCHASING THE TUG IN MAINE
ON MARCH 19, 1942, FOR $2,875.  THEREAFTER HE EXPENDED $5,699.78 ON
LABOR AND MATERIALS IN REPAIRING AND IMPROVING THE VESSEL, AN AMOUNT
WHICH WOULD HAVE BEEN SUBSTANTIALLY GREATER HAD HE NOT PERFORMED PART
OF THE WORK HIMSELF.  IN APRIL, 1942, RESPONDENT RECEIVED FROM THE
DEPARTMENT OF COMMERCE A CERTIFICATE DESIGNATING THE VESSEL AS A TOWING
STEAM VESSEL AND AUTHORIZING HIM TO EMPLOY IT IN THE COASTAL TRADE FOR
ONE YEAR.  RESPONDENT THEN BROUGHT THE TUG TO STATEN ISLAND, NEW YORK,
WHERE IT REMAINED UNTIL REQUISITIONED BY THE WAR SHIPPING
ADMINISTRATION ON OCTOBER 15, 1942.  A SURVEY BY THE NAVY HAD INDICATED
IT WAS SUITABLE AS A STEAM-HEATING PLANT FOR HEATING AND PUMPING FUEL
OIL FROM OIL BARGES INTO NAVAL COMBAT VESSELS.  ITS CONDITION WAS SAID
TO BE "FAIR TO GOOD"; AND ITS ORIGINAL COST WAS ESTIMATED TO BE
$45,000; ITS REPLACEMENT COST, $56,000; AND ITS PRESENT VALUE $9,000. 
IT WAS USED AS A STEAM PLANT TO HEAT OIL FOR USE IN COMBAT SHIPS. 

THE WAR SHIPPING ADMINISTRATION DETERMINED THAT $9,000 WAS "JUST
COMPENSATION" FOR THE TUG AND OFFERED THAT AMOUNT TO RESPONDENT. 
RESPONDENT ACCEPTED 75 PER CENT OF THE AWARD, AS HE WAS PERMITTED TO DO
BY SEC. 902(D) OF THE ACT, AND BROUGHT SUIT TO RECOVER THE BALANCE OF
THE $20,000 WHICH HE ALLEGED WAS THE "JUST COMPENSATION" TO WHICH HE
WAS ENTITLED, PLUS INTEREST. 

ANY VESSEL REQUISITIONED BY THE COMMISSION SHALL BE PAID "JUST
COMPENSATION FOR THE PROPERTY TAKEN OR FOR THE USE OF SUCH PROPERTY,"
GOES ON TO STATE "BUT IN NO CASE SHALL THE VALUE OF THE PROPERTY TAKEN
OR USED BE DEEMED ENHANCED BY THE CAUSES NECESSITATING THE TAKING OR
USE."  IT IS AROUND THIS LATTER CLAUSE THAT THE PRESENT CONTROVERSY
TURNS. 

THE COURT OF CLAIMS FOUND THAT THE FAIR MARKET VALUE AT THE TIME OF
THE TAKING WAS $15,500 AND THAT RESPONDENT WAS ENTITLED TO RECEIVE THAT
AMOUNT, LESS THE SUM ALREADY PAID, PLUS INTEREST.  110 CT. CL. 66, 75
F.SUPP.  235.  THE IMPORTANCE OF THAT DECISION IN THE SETTLEMENT OF
CLAIMS ARISING AS A RESULT OF THE REQUISITIONING PROGRAM DURING THE
PERIOD OF RECENT HOSTILITIES LED US TO GRANT THE PETITION FOR
CERTIORARI. 

THE UNITED STATES ADMITTED LIABILITY FOR ONLY $10,500, CLAIMING THAT
$5,000 OF THE MARKET VALUE WAS DUE TO AN ENHANCEMENT BROUGHT ABOUT BY
ITS NEED FOR VESSELS WHICH NECESSITATED THEIR TAKING.  THE COURT OF
CLAIMS FOUND THAT AT THE TIME OF THE REQUISITIONING THERE EXISTED IN
AND ABOUT THE PORT OF NEW YORK "A RISING MARKET AND A STRONG DEMAND FOR
TUGS OF ALL TYPES" DUE IN PART AT LEAST TO THE GOVERNMENT'S
REQUISITIONING PROGRAM.  IT FOUND THAT THE MARKET VALUE OF THE TUG HAD
BEEN ENHANCED $5,000 BY OCTOBER 15, 1942, DUE (1) TO THE GREAT INCREASE
IN SHIPPING AND HARBOR TRAFFIC BECAUSE OF THE WAR AND (2) TO THE
GOVERNMENT'S NEED FOR VESSELS IN THE PROSECUTION OF THE WAR.  FN2  BUT
THE COURT OF CLAIMS HELD THAT AN OWNER OF PROPERTY TAKEN BY THE
GOVERNMENT WAS ENTITLED TO NO LESS THAN HE COULD HAVE RECEIVED ON THE
MARKET FROM OTHERS, WHICH IN THE PRESENT CASE WAS $15,500. 

THE COMPTROLLER GENERAL HAS RULED THAT SEC. 902(A) PROHIBITS THE
PAYMENT OF COMPENSATION TO THE EXTENT THAT IT MAY BE BASED ON VALUES IN
EXCESS OF THOSE EXISTING ON THE DATE OF THE PRESIDENT'S PROCLAMATION OF
A LIMITED NATIONAL EMERGENCY (SEPTEMBER 8, 1939),  FN3  PROVIDED THAT
SUCH EXCESS BE DETERMINED AS DUE TO ECONOMIC CONDITIONS DIRECTLY CAUSED
BY THE NATIONAL EMERGENCY.  FN4 

THE ADVISORY BOARD ON JUST COMPENSATION  FN5  FORMULATED VARIOUS
RULES FOR THE GUIDANCE OF THE WAR SHIPPING ADMINISTRATION IN ITS
REQUISITIONING PROGRAM, INCLUDING THE FOLLOWING: 

"FROM THE VALUE AT THE TIME OF TAKING, THERE SHOULD BE DEDUCTED ANY
ENHANCEMENT DUE, TO THE GOVERNMENT'S NEED OF VESSELS WHICH HAS
NECESSITATED THE TAKING, TO THE PREVIOUS TAKING OF VESSELS OF SIMILAR
TYPE, OR TO A PROSPECTIVE TAKING, REASONABLY PROBABLE, WHETHER SUCH
NEED, TAKING, OR PROSPECT, OCCURRED BEFORE OR AFTER THE DECLARATION OF
THE NATIONAL EMERGENCY OF MAY 27, 1941.  ENHANCEMENT DUE TO A GENERAL
RISE IN PRICES OR EARNINGS, WHENEVER OCCURRING, SHOULD NOT BE
DEDUCTED.  IN THE APPLICATION OF THIS RULE NEITHER THE PROCLAMATION OF
LIMITED EMERGENCY OF SEPTEMBER 8, 1939, NOR THE FACTS EXISTING AT THAT
TIME, ARE IN THEMSELVES OF SIGNIFICANCE.  THE BOARD DOES NOT DETERMINE
WHETHER ANY ENHANCEMENT AFTER MAY 27, 1941, OTHER THAN AS ENUMERATED
ABOVE AS DEDUCTIBLE, SHOULD BE EXCLUDED; SINCE THE BOARD IS ADVISED
THAT THE VALUE OF OCEANGOING VESSELS WAS HIGHER ON MAY 27, 1941, THAN
AT THE TIME OF TAKING, AND THAT ANY ENHANCEMENT SINCE MAY 27, 1941, IN
VESSELS OF OTHER TYPES, NOT DEDUCTIBLE UNDER THE FOREGOING, IS
ATTRIBUTABLE TO A GENERAL RISE IN PRICES OR EARNINGS, AND SHOULD
THEREFORE NOT BE DEDUCTED." 

THE DEPARTMENT OF JUSTICE AGREES WITH BOTH THE COMPTROLLER GENERAL
AND THE ADVISORY BOARD THAT THE ENHANCEMENT WHICH IS EXCLUDED IS NOT
LIMITED TO THAT ACCRUING IN THE PERIOD AFTER THE DECLARATION OF A
NATIONAL EMERGENCY ON MAY 27, 1941  FN6  AND CONTENDS FOR A
CONSTRUCTION WHICH WOULD ELIMINATE ANY ENHANCEMENT ON VALUES DUE TO THE
WAR.  IT ARGUES THAT THE ACT AS SO CONSTRUED, THOUGH DIFFERENT FROM
HITHERTO ANNOUNCED JUDICIAL RULES OF CONSTRUCTION OF "JUST
COMPENSATION" WITHIN THE MEANING OF THE FIFTH AMENDMENT, IS
NEVERTHELESS CONSTITUTIONAL. 

RESPONDENT, RELYING LARGELY ON MONONGAHELA NAVIGATION CO. V. UNITED
STATES, 148 U.S. 312, ARGUES THAT IF THAT CONSTRUCTION IS ADOPTED IT
MAKES THE ENHANCEMENT CLAUSE UNCONSTITUTIONAL BECAUSE IT CONFLICTS WITH
THE JUDICIAL CONSTRUCTION OF "JUST COMPENSATION" AND IS THEREFORE
BEYOND THE COMPETENCE OF CONGRESS TO PRESCRIBE. 

FIRST.  WE NEED NOT REACH THE QUESTION WHETHER THE MEASURE OF
COMPENSATION WHICH CONGRESS WROTE INTO THE ACT IS IN ALL OF ITS
APPLICATIONS IDENTICAL WITH THE JUDICIAL STANDARD.  WE ARE SATISFIED
THAT ON THE PRESENT FACTS THE TWO ARE COTERMINOUS. 

THE COURT IN ITS CONSTRUCTION OF THE CONSTITUTIONAL PROVISION HAS
BEEN CAREFUL NOT TO REDUCE THE CONCEPT OF "JUST COMPENSATION" TO A
FORMULA.  THE POLITICAL ETHICS REFLECTED IN THE FIFTH AMENDMENT REJECT
CONFISCATION AS A MEASURE OF JUSTICE.  BUT THE AMENDMENT DOES NOT
CONTAIN ANY DEFINITE STANDARDS OF FAIRNESS BY WHICH THE MEASURE OF
"JUST COMPENSATION" IS TO BE DETERMINED.  UNITED STATES EX REL. T.V.A.
V. POWELSON, 319 U.S. 266, 279-280; UNITED STATES V. PETTY MOTOR CO.,
327 U.S. 372, 377.  THE COURT IN AN ENDEAVOR TO FIND WORKING RULES THAT
WILL DO SUBSTANTIAL JUSTICE HAS ADOPTED PRACTICAL STANDARDS, INCLUDING
THAT OF MARKET VALUE.  UNITED STATES V. MILLER, 317 U.S. 369, 374.  BUT
IT HAS REFUSED TO MAKE A FETISH EVEN OF MARKET VALUE, SINCE THAT MAY
NOT BE THE BEST MEASURE OF VALUE IN SOME CASES.  AT TIMES SOME ELEMENTS
INCLUDED IN THE CRITERION OF MARKET VALUE HAVE IN FAIRNESS BEEN
EXCLUDED, AS FOR EXAMPLE WHERE THE PROPERTY HAS A SPECIAL VALUE TO THE
OWNER BECAUSE OF ITS ADAPTABILITY TO HIS NEEDS OR WHERE IT HAS A
SPECIAL VALUE TO THE TAKER BECAUSE OF ITS PECULIAR FITNESS FOR THE
TAKER'S PROJECT.  SEE UNITED STATES V. MILLER, SUPRA, 375 AND CASES
CITED.  MOREOVER, WHERE THE GOVERNMENT LAYS OUT A PROJECT INVOLVING THE
TAKING OF LANDS, NO INCREMENT OF VALUE ARISING BY VIRTUE OF THE FACT
THAT A PARTICULAR TRACT IS CLEARLY OR PROBABLY WITHIN THE PROJECT MAY
BE ADDED.  ID., 376-379 AND CASES CITED.  ANY INCREASE IN VALUE DUE TO
THAT FACT WOULD REFLECT SPECULATION AS TO WHAT THE GOVERNMENT COULD BE
COMPELLED TO PAY AND HENCE IN FAIRNESS SHOULD BE EXCLUDED FROM THE
DETERMINATION OF WHAT COMPENSATION WOULD BE JUST.  ID., 377. 

THE COURT OF CLAIMS RECOGNIZED THESE RULES.  BUT IT CONCLUDED THAT
THEY REPRESENTED THE ONLY EXCEPTIONS TO THE REQUIREMENT THAT MARKET
VALUE BE PAID, THAT THEY WERE INAPPLICABLE HERE, AND THAT THEREFORE
THERE WAS NO ENHANCEMENT IN THE VALUE OF THE VESSEL THAT SHOULD BE
EXCLUDED FROM THE FAIR MARKET VALUE IN MAKING THE AWARD TO RESPONDENT. 
WE BELIEVE, HOWEVER, THAT THESE EXCEPTIONS ARE MERELY ILLUSTRATIONS OF
A PRINCIPLE WHICH EXCLUDES ENHANCEMENT OF VALUE RESULTING FROM THE
GOVERNMENT'S SPECIAL OR EXTRAORDINARY DEMAND FOR THE PROPERTY. 

THE SPECIAL VALUE TO THE CONDEMNER AS DISTINGUISHED FROM OTHERS WHO
MAY OR MAY NOT POSSESS THE POWER TO CONDEMN HAS LONG BEEN EXCLUDED AS
AN ELEMENT FROM MARKET VALUE.  SEE UNITED STATES V. CHANDLER-DUNBAR
CO., 229 U.S. 53, 76.  IN TIME OF WAR OR OTHER NATIONAL EMERGENCY THE
DEMAND OF THE GOVERNMENT FOR AN ARTICLE OR COMMODITY OFTEN CAUSES THE
MARKET TO BE AN UNFAIR INDICATION OF VALUE.  THE SPECIAL NEEDS OF THE
GOVERNMENT CREATE A DEMAND THAT OUTRUNS THE SUPPLY.  THE MARKET,
SENSITIVE TO THE BULLISH PRESSURE, RESPONDS WITH A SPIRALING OF
PRICES.  THE NORMAL MARKET PRICE FOR THE COMMODITY BECOMES INFLATED. 
AND SO THE MARKET VALUE OF THE COMMODITY IS ENHANCED BY THE SPECIAL
NEED WHICH THE GOVERNMENT HAS FOR IT. 

THAT SEEMS TO HAVE BEEN THE SITUATION IN THE PRESENT CASE.  FOR, AS
WE HAVE SEEN, THE COURT OF CLAIMS FOUND THAT AT THE TIME OF THE
REQUISITION THERE WAS "A RISING MARKET AND A STRONG DEMAND FOR TUGS OF
ALL TYPES" IN AND AROUND THE PORT OF NEW YORK, DUE IN PART AT LEAST TO
THE SHORTAGE OF TUGS RESULTING FROM THE GOVERNMENT'S REQUISITIONING
PROGRAM. 

IT IS NOT FAIR THAT THE GOVERNMENT BE REQUIRED TO PAY THE ENHANCED
PRICE WHICH ITS DEMAND ALONE HAS CREATED.  THAT ENHANCEMENT REFLECTS
ELEMENTS OF THE VALUE THAT WAS CREATED BY THE URGENCY OF ITS NEED FOR
THE ARTICLE.  IT DOES NOT REFLECT WHAT "A WILLING BUYER WOULD PAY IN
CASH TO A WILLING SELLER," UNITED STATES V. MILLER, SUPRA, 374, IN A
FAIR MARKET.  IT REPRESENTS WHAT CAN BE EXACTED FROM THE GOVERNMENT
WHOSE DEMANDS IN THE EMERGENCY HAVE CREATED A SELLERS' MARKET.  IN THIS
SITUATION, AS IN THE CASE OF LAND INCLUDED IN A PROPOSED PROJECT OF THE
GOVERNMENT, THE ENHANCED VALUE REFLECTS SPECULATION AS TO WHAT THE
GOVERNMENT CAN BE COMPELLED TO PAY.  THAT IS A HOLD-UP VALUE, NOT A
FAIR MARKET VALUE.  THAT IS A VALUE WHICH THE GOVERNMENT ITSELF CREATED
AND HENCE IN FAIRNESS SHOULD NOT BE REQUIRED TO PAY. 

SECOND.  WHAT WE HAVE SAID IS IN ACCORD WITH OUR READING OF THE
REPORT OF THE ADVISORY BOARD.  ANY ENHANCEMENT OF VALUE MUST BE
DEDUCTED WHERE IT IS DUE (A) "TO THE GOVERNMENT'S NEED OF VESSELS WHICH
HAS NECESSITATED THE TAKING," (B) "TO THE PREVIOUS TAKING OF VESSELS OF
SIMILAR TYPE," OR (C) "TO A PROSPECTIVE TAKING, REASONABLY PROBABLE. 
...  " 

THE GOVERNMENT'S NEED OF VESSELS WHICH HAS NECESSITATED THE TAKING IS
ITS NEED FOR THE PRECISE SHIP TAKEN, FOR THE TYPE OR CLASS OF SHIP
TAKEN, OR FOR SHIPS WHICH PERFORM THE SAME OR RELATED FUNCTIONS.  THE
GOVERNMENT'S NEED FOR CARGO VESSELS MAY AFFECT INDIRECTLY THE PRICE
LEVEL OF MANY COMMODITIES.  IT MAY, FOR EXAMPLE, AFFECT THE PRICE OF
ROWBOATS.  BUT IF THE GOVERNMENT TAKES A ROWBOAT, THE ENHANCEMENT TO BE
EXCLUDED IS THAT WHICH RESULTS FROM THE GOVERNMENT'S ACTIVITIES IN THE
PARTICULAR MARKET.  IT IS THE GOVERNMENT'S DEMAND IN THAT MARKET THAT
IS THE MEASURE OF THE "CAUSES NECESSITATING THE TAKING OR USE" IN THIS
SITUATION.  FN7 

WE ALSO AGREE WITH THE ADVISORY BOARD THAT THE ENHANCEMENT WHICH IS
EXCLUDED IS THAT WHICH ARISES BEFORE AS WELL AS AFTER THE DECLARATION
OF THE NATIONAL EMERGENCY OF MAY 27, 1941.  SECTION 902(A) DOES NOT
HAVE ANY LIMITING FACTOR SO FAR AS TIME IS CONCERNED.  BUT WE CANNOT
SAY FROM THIS RECORD WHETHER ANY PART OF THE $15,500 THAT THE COURT OF
CLAIMS FOUND TO BE THE FAIR MARKET VALUE OF THE TUG AT THE TIME OF THE
TAKING INCLUDES ANY DEDUCTIBLE ENHANCEMENT IN VALUE.  THE COURT OF
CLAIMS FOUND, TO BE SURE, THAT THERE WAS NO REASONABLE PROSPECT OF THE
CONDEMNATION OF THE TUG AND HENCE NO ENHANCEMENT IN VALUE DUE TO THAT
REASON.  YET, AS WE HAVE SEEN, THAT IS ONLY ONE SOURCE OF THE
ENHANCEMENT IN VALUE WHICH IS DEDUCTIBLE.  THERE ARE NO FINDINGS AS TO
THE EFFECT ON THE MARKET EITHER OF THE PREVIOUS TAKING, IF ANY, OF
VESSELS OF A SIMILAR TYPE, OR OF THE GOVERNMENT'S NEED OF VESSELS
NECESSITATING THE TAKING, AS WE HAVE CONSTRUED IT.  THE ONLY FINDINGS
AT ALL RELEVANT TO THESE FACTORS ARE (1) THAT THE INCREASE IN MARKET
VALUES OF "NEARLY ALL VESSELS IN AND ABOUT THE PORT OF NEW YORK"
BETWEEN SEPTEMBER 8, 1939 AND MAY 27, 1941 WAS DUE TO "THE DEMAND FOR
VESSELS WHICH FOLLOWED THE OUTBREAK OF WAR IN EUROPE"; AND (2) THAT
SUCH INCREASE AFTER MAY 27, 1941, AND PARTICULARLY AFTER DECEMBER 7,
1941, WAS DUE TO "THE GOVERNMENT'S NEED FOR VESSELS, WHICH NECESSITATED
THE TAKING OF MANY VESSELS, AND TO THE GREAT INCREASE IN SHIPPING AND
IN HARBOR TRAFFIC" DURING THE WAR.  FN8  THESE FINDINGS, HOWEVER, ARE
NOT SUFFICIENTLY DISCRIMINATING.  THEY DO NOT SHOW THE EFFECT ON THE
MARKET OF THE GOVERNMENT'S NEED FOR THIS PARTICULAR SHIP, FOR THIS TYPE
OR CLASS OF VESSEL, OR FOR SHIPS WHICH PERFORM THE SAME OR RELATED
FUNCTIONS.  THE FINDINGS AS TO THE RISING MARKET FOR TUGS IN AND ABOUT
THE PORT OF NEW YORK TELL US THAT SOME OF THAT ENHANCEMENT IS DUE TO
THE GOVERNMENT'S NEED.  BUT WE ARE LEFT IN THE DARK AS TO HOW MUCH IT
MAY BE. 

IN SUM THE FINDINGS DO NOT TELL US WITH SUFFICIENT PARTICULARITY WHAT
WAS THE EFFECT OF THE GOVERNMENT'S ACTIVITIES IN THE PARTICULAR
MARKET.  NOR DO WE KNOW WHETHER INCREASES IN VALUE OF THE VESSEL UP TO
MARCH 19, 1942, WHEN THE UNITED STATES SOLD IT TO RESPONDENT, WERE
REFLECTED IN THE SALE PRICE.  IF THEY WERE, THE UNITED STATES HAS
RECEIVED ANY ENHANCEMENT IN VALUE THAT RESULTED FROM ITS NEED UP TO
THAT DATE. 

FINALLY, RESPONDENT ARGUES THAT THE ACTUAL BASIS FOR THE INCREASE IN
VALUE OF THE VESSEL BETWEEN MARCH AND OCTOBER, 1942(THE PERIOD WHEN
RESPONDENT OWNED IT) IS DUE TO CAUSES OTHER THAN THE GOVERNMENT'S
NEED.  HE POINTS OUT THAT HIS TOTAL MONETARY EXPENDITURE ON THE VESSEL
AMOUNTED TO $8,574.78, OF WHICH $5,699.78 REPRESENTED LABOR AND
MATERIALS.  THE LATTER AMOUNT, HOWEVER, WOULD HAVE BEEN SUBSTANTIALLY
GREATER HAD NOT RESPONDENT HIMSELF PERFORMED PART OF THE LABOR. 
RESPONDENT PLAINLY WOULD BE ENTITLED TO ANY INCREASE IN VALUE DUE TO
THAT FACTOR.  MOREOVER, WHEN RESPONDENT REPAIRED AND RECONDITIONED THE
BOAT IT WAS CERTIFICATED AS A TOWING STEAM VESSEL, A SUBSTANTIALLY NEW
USE FOR THE TUG.  THESE TWO FACTORS ALONE, PLUS THE GENERAL PRICE
INCREASE, ARE SAID TO ACCOUNT FOR THE $5,000 ENHANCEMENT IN VALUE FOUND
BY THE COURT OF CLAIMS. 

WE START WITH FINDINGS THAT TELL US THAT SOME OF THE ENHANCEMENT IN
MARKET VALUE IS DUE TO THE GOVERNMENT'S NEED.  IT IS SHEER SPECULATION
TO SAY THAT THERE ARE OFFSETS AGAINST THAT ENHANCEMENT WHICH SO REDUCE
IT AS TO RENDER THE CONSTRUCTION OF THE ACT AN ABSTRACT QUESTION.  CF.
ASHWANDER V. VALLEY AUTHORITY, 297 U.S. 288, 324.  THE INADEQUACIES IN
THE FINDINGS ARE DUE TO THE ERRONEOUS CONSTRUCTION OF THE ACT BY THE
COURT OF CLAIMS.  REVERSED. 

FN1  SECTION 902(A) PROVIDES: 

"WHENEVER THE PRESIDENT SHALL PROCLAIM THAT THE SECURITY OF THE
NATIONAL DEFENSE MAKES IT ADVISABLE OR DURING ANY NATIONAL EMERGENCY
DECLARED BY PROCLAMATION OF THE PRESIDENT, IT SHALL BE LAWFUL FOR THE
COMMISSION TO REQUISITION OR PURCHASE ANY VESSEL OR OTHER WATERCRAFT
OWNED BY CITIZENS OF THE UNITED STATES, OR UNDER CONSTRUCTION WITHIN
THE UNITED STATES, OR FOR ANY PERIOD DURING SUCH EMERGENCY, TO
REQUISITION OR CHARTER THE USE OF ANY SUCH PROPERTY.  THE TERMINATION
OF ANY EMERGENCY SO DECLARED SHALL BE ANNOUNCED BY A FURTHER
PROCLAMATION BY THE PRESIDENT.  WHEN ANY SUCH PROPERTY OR THE USE
THEREOF IS SO REQUISITIONED, THE OWNER THEREOF SHALL BE PAID JUST
COMPENSATION FOR THE PROPERTY TAKEN OR FOR THE USE OF SUCH PROPERTY,
BUT IN NO CASE SHALL THE VALUE OF THE PROPERTY TAKEN OR USED BE DEEMED
ENHANCED BY THE CAUSES NECESSITATING THE TAKING OR USE.  IF ANY
PROPERTY IS TAKEN AND USED UNDER AUTHORITY OF THIS SECTION, BUT THE
OWNERSHIP THEREOF IS NOT REQUIRED BY THE UNITED STATES, SUCH PROPERTY
SHALL BE RESTORED TO THE OWNER IN A CONDITION AT LEAST AS GOOD AS WHEN
TAKEN, LESS ORDINARY WEAR AND TEAR, OR THE OWNER SHALL BE PAID AN
AMOUNT FOR RECONDITIONING SUFFICIENT TO PLACE THE PROPERTY IN SUCH
CONDITION.  THE OWNER SHALL NOT BE PAID FOR ANY CONSEQUENTIAL DAMAGES
ARISING FROM A TAKING OR USE OF PROPERTY UNDER AUTHORITY OF THIS

FN2  THE FINDINGS ON THESE ISSUES WERE AS FOLLOWS: 

"AT THE TIME OF THE REQUISITION, THERE EXISTED IN AND ABOUT THE PORT
OF NEW YORK A RISING MARKET AND A STRONG DEMAND FOR TUGS OF ALL TYPES,
INCLUDING THE MACARTHUR.  THIS SITUATION WAS DUE TO THE GREATLY
INCREASED TRAFFIC IN THE HARBOR DURING THE PERIOD OF THE WAR, TO THE
FACT THAT THE GOVERNMENT HAD BEEN REQUISITIONING TUGS AND TO THE
RESULTING SHORTAGE OF TUGS.  TUGS WERE OPERATED DAY AND NIGHT IN AN
EFFORT TO HANDLE THE INCREASED BUSINESS AND, UNDER THOSE CONDITIONS
MOST TUG OWNERS WERE RELUCTANT TO SELL.  HOWEVER, FROM AUGUST 1941 TO
FEBRUARY 1943, SIX TUGBOATS WERE SOLD ON THE OPEN MARKET IN OR NEAR THE
PORT OF NEW YORK.  NONE OF THESE SALES INVOLVED A VESSEL CLOSELY
COMPARABLE TO THE MACARTHUR IN DESIGN, POWER, AND EQUIPMENT.  ...  " 

"BEGINNING ON SEPTEMBER 8, 1939, THE DATE ON WHICH THE PRESIDENT
PROCLAIMED THE EXISTENCE OF A LIMITED NATIONAL EMERGENCY, AND
CONTINUING UP TO THE DATE THAT PLAINTIFF'S VESSEL WAS REQUISITIONED,
THERE WAS A GENERAL RISE IN THE MARKET VALUES OF NEARLY ALL VESSELS IN
AND ABOUT THE PORT OF NEW YORK.  THIS INCREASE IN VALUES BETWEEN
SEPTEMBER 8, 1939 AND MAY 27, 1941, THE DATE ON WHICH THE PRESIDENT
PROCLAIMED THE EXISTENCE OF A GENERAL NATIONAL EMERGENCY, WAS DUE TO
THE DEMAND FOR VESSELS WHICH FOLLOWED THE OUTBREAK OF WAR IN EUROPE. 
AFTER MAY 27, 1941 AND PARTICULARLY AFTER DECEMBER 7, 1941, THE DATE OF
THE JAPANESE ATTACK ON PEARL HARBOR, THE RISE IN MARKET VALUES WAS DUE
TO THE GOVERNMENT'S NEED FOR VESSELS, WHICH NECESSITATED THE TAKING OF
MANY VESSELS, AND TO THE GREAT INCREASE IN SHIPPING AND IN HARBOR
TRAFFIC WHICH OCCURRED DURING THE PERIOD OF THE WAR.  THESE CONDITIONS
COMBINED TO CREATE A DEMAND FOR AND A SHORTAGE OF TUGS.  AS A RESULT,
THE MARKET VALUE OF THE MACARTHUR HAD BEEN ENHANCED BY THE SUM OF
$5,000.00 BY OCTOBER 15, 1942. 

"PRIOR TO THE TIME THE DEFENDANT REQUISITIONED THE MACARTHUR THERE
WAS NO REASONABLE PROSPECT THAT SHE WOULD BE REQUISITIONED, AND NO PART
OF THE ENHANCEMENT IN HER VALUE WAS DUE TO SUCH A PROSPECT." 

FN3  SEE 3 C.F.R. CUM. SUPP. 114. 

FN4  22 COMP. GEN. 497, 608. 

FN5  SEE EXEC. ORDER 9387, OCT. 15, 1943, 8 FED. REG. 14105, 3
C.F.R., 1943 SUPP. 48-49.  THE EXECUTIVE ORDER PROVIDED IN PART: 

"THE BOARD, IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE
CONSTITUTION AND THE LAWS OF THE UNITED STATES, SHALL ESTABLISH FAIR
AND EQUITABLE STANDARDS, RULES AND FORMULAE OF GENERAL APPLICABILITY
FOR THE GUIDANCE OF THE WAR SHIPPING ADMINISTRATION IN DETERMINING THE
JUST COMPENSATION TO BE PAID FOR ALL VESSELS REQUISITIONED, PURCHASED,
CHARTERED OR INSURED BY THE ADMINISTRATION.  THE BOARD MAY PRESCRIBE
SUCH RULES, REGULATIONS AND PROCEDURES AS IT DEEMS NECESSARY OR
ADVISABLE IN CARRYING OUT ITS FUNCTIONS. 

"IN DETERMINING THE AMOUNT OF JUST COMPENSATION WHICH SHOULD BE PAID
FOR EACH VESSEL, THE WAR SHIPPING ADMINISTRATION WILL BE GUIDED BY THE
GENERAL STANDARDS, RULES AND FORMULAE ESTABLISHED BY THE BOARD." 

THIS BOARD WAS COMPOSED OF LEARNED HAND, JOHN J. PARKER, AND JOSEPH
C. HUTCHESON, JR. 

FN6  3 C.F.R. CUM. SUPP. 234. 

FN7  WHETHER THERE MIGHT BE A DIFFERENT MEASURE OF THOSE CAUSES IN
OTHER SITUATIONS IS A QUESTION WE DO NOT REACH. 

FN8  SEE NOTE 2, SUPRA. 

MR. CHIEF JUSTICE VINSON DISSENTS. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE JACKSON AND MR.
JUSTICE BURTON JOIN, DISSENTING. 

WE BROUGHT THIS CASE HERE ON CERTIORARI TO THE COURT OF CLAIMS UNDER
28 U.S.C. SEC. 1255(1) BECAUSE IT SEEMED TO PRESENT CONSTITUTIONAL
ISSUES IMPORTANT IN THE AWARD OF COMPENSATION FOR VESSELS REQUISITIONED
BY THE GOVERNMENT DURING THE RECENT NATIONAL EMERGENCY UNDER SEC.
902(A) OF THE MERCHANT MARINE ACT OF 1936.  FN1 

THE FOLLOWING FACTS ARE THE BASIS OF THE CLAIM THAT THE SCOPE AND
VALIDITY OF THAT SECTION OF THE MERCHANT MARINE ACT CALL FOR
ADJUDICATION. 

THE STEAM TUG GUTHRIE WAS OWNED BY THE UNITED STATES AND OPERATED BY
THE COAST GUARD CONTINUOUSLY FROM 1895, WHEN SHE WAS BUILT, UNTIL
1941.  IN THAT YEAR A SPECIAL BOARD OF SURVEY APPOINTED TO DETERMINE
HER CONDITION FOUND HER IN NEED OF A NEW BOILER AND EXTENSIVE REPAIRS. 
IN VIEW OF "THE PRESENT EMERGENCY AND THE GREAT NEED OF VESSELS," THE
BOARD RECOMMENDED THAT THE NECESSARY RECONDITIONING BE UNDERTAKEN.  THE
COAST GUARD, HOWEVER, DIRECTED THAT SHE BE SOLD TO THE HIGHEST BIDDER. 
RESPONDENT'S WAS THE HIGHEST BID RECEIVED, AND ON MARCH 19, 1942, THE
GUTHRIE WAS SOLD TO HIM FOR $2,875.  HE PROCEEDED TO CARRY OUT THE
REPAIRS THAT HAD BEEN INDICATED BY THE COAST GUARD SURVEY, DOING MOST
OF THE WORK HIMSELF WITH THE AID OF A CREW OF FOUR; THE REST WAS DONE
BY A SHIPYARD AT PORTLAND.  HIS TOTAL EXPENDITURE ON LABOR AND
MATERIALS WAS $5,699.78 BUT WOULD HAVE BEEN SUBSTANTIALLY GREATER HAD
HE NOT BEEN EXPERIENCED IN THIS TYPE OF WORK. 

ON APRIL 20 AND 21, THE DEPARTMENT OF COMMERCE LICENSED THE GUTHRIE
AS A "TOWING STEAM VESSEL" PERMITTED TO NAVIGATE IN "BAYS, SOUNDS,
RIVERS AND HARBORS" AND ALSO AUTHORIZED RESPONDENT TO EMPLOY HER IN THE
COASTING TRADE.  RESPONDENT THEN BROUGHT HER UNDER HER OWN POWER TO NEW
YORK WHERE SHE WAS RECHRISTENED THE MACARTHUR AND WHERE SHE REMAINED
INACTIVE UNTIL SEPTEMBER, 1942, WHEN THE NAVY SURVEYED HER FOR USE AS A
STEAM-HEATING PLANT FOR HEATING AND PUMPING FUEL OIL FROM BARGES INTO
COMBAT VESSELS.  ON OCTOBER 15, 1942, THE WAR SHIPPING ADMINISTRATION
REQUISITIONED THE MACARTHUR FOR THE NAVY AND LATER OFFERED RESPONDENT
$9,000 AS COMPENSATION FOR HER.  THIS FIGURE WAS BASED UPON THE COAST
GUARD SURVEY, THE NAVY SURVEY, AND THE RULES ADOPTED BY THE ADVISORY
BOARD ON JUST COMPENSATION WHICH HAD BEEN APPOINTED TO CLARIFY THE
MEASURE OF COMPENSATION PAYABLE BY THE WAR SHIPPING ADMINISTRATION
UNDER SEC. 902(A) OF THE MERCHANT MARINE ACT.  FN2  RESPONDENT
PROTESTED AGAINST THE AWARD AND, AS HE WAS ENTITLED TO DO UNDER SEC.
902(D) OF THE ACT, ACCEPTED 75% OF IT, AND BROUGHT SUIT IN THE COURT OF
CLAIMS FOR THE DIFFERENCE BETWEEN THE AMOUNT HE HAD BEEN OFFERED AND
THE AMOUNT HE ALLEGED TO BE DUE AS JUST COMPENSATION. 

THE COURT OF CLAIMS FOUND THAT THE MARKET VALUE OF THE MACARTHUR ON
THE DATE OF TAKING WAS $15,500.  110 CT. CL. 66.  THE GOVERNMENT DOES
NOT DISPUTE THAT THERE WAS A MARKET NOR THAT VALUE ON THE MARKET WAS AS
FOUND, BUT INSISTS THAT THERE SHOULD HAVE BEEN DEDUCTED FROM IT AN
AMOUNT REPRESENTING ENHANCEMENT "BY THE CAUSES NECESSITATING THE
TAKING" UNDER THE TERMS OF SEC. 902(A).  IT BASES THIS CONTENTION ON
TWO FINDINGS OF THE COURT OF CLAIMS.  THE FIRST IS THAT "AT THE TIME OF
THE REQUISITION, THERE EXISTED IN AND ABOUT THE PORT OF NEW YORK A
RISING MARKET AND A STRONG DEMAND FOR TUGS OF ALL TYPES, INCLUDING THE
MACARTHUR.  THIS SITUATION WAS DUE TO THE GREATLY INCREASED TRAFFIC IN
THE HARBOR DURING THE PERIOD OF THE WAR, TO THE FACT THAT THE
GOVERNMENT HAD BEEN REQUISITIONING TUGS AND TO THE RESULTING SHORTAGE
OF TUGS."  110 CT. CL. AT 75-76.  THE SECOND IS THAT THE MARKET VALUE
OF THE MACARTHUR HAD BEEN ENHANCED BETWEEN SEPTEMBER 8, 1939, WHEN THE
PRESIDENT PROCLAIMED A LIMITED NATIONAL EMERGENCY, AND OCTOBER 15,
1942, WHEN SHE WAS REQUISITIONED, BY THE SUM OF $5,000, PART OF WHICH,
AFTER PROCLAMATION OF A GENERAL NATIONAL EMERGENCY ON MAY 27, 1941,
"WAS DUE TO THE GOVERNMENT'S NEED FOR VESSELS, WHICH NECESSITATED THE
TAKING OF MANY VESSELS  ...  "  ID. AT 77.  BUT THE COURT OF CLAIMS
CONCLUDED THAT "IT IS NOT POSSIBLE TO ALLOCATE TO THE (GOVERNMENT'S
NEED) A DEFINITE PART OF THE INCREASE IN MARKET VALUE, BUT EVEN IF IT
WERE POSSIBLE TO DO SO, WE DO NOT THINK THE DEFENDANT IS ENTITLED TO A
DEDUCTION FROM MARKET VALUE ON THIS ACCOUNT."  ID. AT 78. 

THE GOVERNMENT'S ARGUMENTS IN SUPPORT OF ITS CLAIM THAT ALL OR PART
OF THE $5,000 ENHANCEMENT IN MARKET VALUE OF THE MACARTHUR SHOULD BE
DEDUCTED IN COMPUTING JUST COMPENSATION TO RESPONDENT ULTIMATELY REDUCE
TO TWO.  THE FIRST IS THAT THERE SHOULD BE DEDUCTED ANY SPECULATIVE
INCREASE OF VALUE DUE TO THE PROBABILITY OF THE TAKING.  IT IS CLEAR
THAT SUCH A DEDUCTION MUST BE MADE WHERE THE INCREASE IS TRACEABLE TO
THE PROBABILITY THAT THE GOVERNMENT WOULD TAKE THE PARTICULAR PROPERTY
FOR WHICH COMPENSATION IS SOUGHT.  UNITED STATES V. MILLER, 317 U.S.
369.  BUT THE APPLICATION OF THIS PRINCIPLE IS IMPOSSIBLE HERE IN THE
FACE OF THE COURT OF CLAIMS' EXPLICIT FINDING THAT "PRIOR TO THE TIME
THE DEFENDANT REQUISITIONED THE MACARTHUR THERE WAS NO REASONABLE
PROSPECT THAT SHE WOULD BE REQUISITIONED, AND NO PART OF THE
ENHANCEMENT IN HER VALUE WAS DUE TO SUCH A PROSPECT."  110 CT. CL. AT
77.  IT IS ARGUABLE, HOWEVER, THAT THE RATIONALE OF THE MILLER CASE
SHOULD BE EXTENDED TO PROPERTY OF A LESS UNIQUE CHARACTER THAN LAND -
PROPERTY OF A CLASS ANY MEMBER OF WHICH WOULD FULFILL THE TAKER'S NEED
MORE OR LESS EQUALLY WELL.  AS TO SUCH PROPERTY THERE MAY BE
SPECULATIVE INCREASE IN VALUE BECAUSE OF THE DUAL EXPECTATION THAT SOME
MEMBERS OF THE CLASS WILL BE TAKEN AND THAT THE TAKER MAY BE FORCED TO
PAY, WHEN THE TIME COMES FOR THE AWARD OF COMPENSATION, SOMETHING MORE
THAN WHAT WOULD HAVE BEEN MARKET VALUE HAD NOT SPECULATION OCCURRED. 
SEE MCGOVERN V. NEW YORK, 229 U.S. 363, 372.  AND THIS MIGHT BE TRUE
EVEN THOUGH IT COULD NOT BE SAID THAT IT WAS PROBABLE THAT A PARTICULAR
MEMBER OF THE CLASS - IN THIS CASE A PARTICULAR TUG - WOULD BE TAKEN. 
FN3 

BUT THIS IS A QUESTION WE DO NOT NEED TO PASS ON NOW BECAUSE, IN
ADDITION TO THE FINDING THAT IT WAS NOT PROBABLE THAT THE MACARTHUR
WOULD BE TAKEN, THE RECORD CONTAINS EVIDENCE OF THE MOST CONCLUSIVE
KIND THAT A TAKING WAS IMPROBABLE:  THE GOVERNMENT HAD GOT RID OF THE
TUG ONLY SEVEN MONTHS BEFORE THE TAKING, WITH COMPLETE AWARENESS THAT
SHE WAS CAPABLE OF BEING ADEQUATELY RECONDITIONED.  AMONG THOSE WHOSE
DEALINGS IN TUGS ESTABLISHED MARKET VALUE, THEREFORE, WHATEVER MAY HAVE
BEEN THE TENDENCY OF THEIR ACTIVITIES TO BRING ABOUT SPECULATIVE
INCREASE IN THE VALUE OF TUGS GENERALLY, IT MUST HAVE SEEMED SO
UNLIKELY THAT THE GOVERNMENT WOULD REVERSE ITSELF AND TAKE THE
MACARTHUR BACK THAT THE MARKET VALUE FOUND BY THE COURT OF CLAIMS FOR
THIS PARTICULAR TUG COULD HARDLY HAVE REFLECTED ENHANCEMENT DUE TO
SPECULATION AT THE EXPENSE OF THE GOVERNMENT'S NEED FOR HER.  IT MAY BE
SUGGESTED, TO BE SURE, THAT THE NEED WHICH PROMPTED THIS REVERSAL MIGHT
HAVE BEEN ANTICIPATED BY ONE SHREWD ENOUGH TO FORESEE A GROWING
SHORTAGE OF TUGS MORE ACCURATELY THAN THOSE RESPONSIBLE FOR THE
GOVERNMENT'S DECISIONS IN THESE MATTERS.  BUT WHATEVER MIGHT
CONCEIVABLY BE THE EFFECT ON THE MARKET OF THE OPERATIONS OF SUCH
PERSONS, IT WOULD BE AN EFFECT SO FAR BEYOND THE POSSIBILITY OF
MEASUREMENT THAT IT WOULD BE FUTILE IN THE EXTREME TO REMAND FOR A
FINDING ON THE POINT, ESPECIALLY WHEN IT IS REMEMBERED THAT THE
MACARTHUR WAS REQUISITIONED NOT FOR USE AS A TUG BUT AS A HEATING
PLANT. 

WE MUST REJECT, THEREFORE, SPECULATION BY PURCHASERS OF TUGS AT THE
EXPENSE OF THE GOVERNMENT'S NEED AS A FACTOR CONTRIBUTING TO THE MARKET
VALUE OF THE MACARTHUR AT THE TIME SHE WAS REQUISITIONED.  THE ONLY
OTHER WAY THAT HAS BEEN SUGGESTED IN WHICH HER MARKET VALUE COULD HAVE
BEEN INCREASED BY THE GOVERNMENT'S NEED IS AS A RESULT OF THE INCREASE
IN DEMAND PRESUMABLY BROUGHT ABOUT BY PREVIOUS GOVERNMENT SEIZURES OF
TUGS DURING A PERIOD WHEN, AS THE COURT OF CLAIMS FOUND, THERE WAS A
SHORTAGE OF TUGS DUE TO A GREAT "INCREASE IN SHIPPING AND HARBOR
TRAFFIC."  IN THIS INDIRECT WAY, THE GOVERNMENT'S NEED CAN BE REGARDED
AS A "CAUSE" OF THE INCREASE IN THE MACARTHUR'S MARKET VALUE.  BECAUSE
THIS NEED COULD BE FORESEEN AT LEAST BY THE TIME OF THE DECLARATION OF
LIMITED NATIONAL EMERGENCY ON SEPTEMBER 8, 1939, THE GOVERNMENT ARGUES
THAT ALL ENHANCEMENT IN THE VALUE OF VESSELS SINCE THAT DATE SHOULD
THEREFORE BE DEDUCTED FROM THEIR MARKET PRICE IN DETERMINING JUST
COMPENSATION.  IN THE ALTERNATIVE, IT URGES THAT THERE SHOULD BE
DEDUCTED THAT PROPORTION OF THIS INCREASE WHICH IS ALLOCABLE TO THE
GOVERNMENT'S INTERVENTION IN THE MARKET. 

WHETHER REGARDED AS FOUNDED UPON SEC. 902(A) OF THE MERCHANT MARINE
ACT OR UPON JUDICIAL PRINCIPLES OF JUST COMPENSATION, BOTH THESE
CONTENTIONS, IN MY JUDGMENT, MUST BE REJECTED.  WHEN THE GOVERNMENT
FIRST TOOK OUT OF COMMERCIAL OPERATION SOME OF THE TUGS WHICH HAD BEEN
THUS EMPLOYED, IT COULD REQUISITION THEM AT A PRICE UNINFLUENCED BY ITS
OWN NEED.  A SUBSEQUENT INCREASE IN THE MARKET VALUE, THOUGH
PRECIPITATED BY THE SHORTAGE CAUSED BY THE EARLIER TAKING, COULD BE A
DIRECT RESULT ONLY OF THE TUG OPERATORS' NEED FOR THE REMAINING TUGS,
NOT OF THE GOVERNMENT'S FOR THOSE IT HAD TAKEN.  LEAVING ENHANCEMENT
ATTRIBUTABLE TO SPECULATION OUT OF ACCOUNT, AS THE RECORD OBLIGES US TO
DO, THE GOVERNMENT COULD THEN REQUISITION STILL MORE TUGS AT A MARKET
VALUE AT MOST NO HIGHER THAN THE LEVEL AT WHICH THE NEW PRICE HAD
SETTLED.  UNLIKE AN INCREASE DUE TO SPECULATION BY BUYERS OF TUGS THAT
AWARDS FOR REQUISITIONED TUGS WOULD EXCEED THE PRICE LIKELY TO BE PAID
BY COMMERCIAL OPERATORS PURCHASING TUGS FOR THEIR OWN USE, AN INCREASE
DUE TO SHORTAGE WOULD AFFECT THE PRICE TO ANY PURCHASER AND ENHANCE
VALUE TO ANY OWNER EVEN THOUGH NO FURTHER REQUISITIONS WERE ANTICIPATED
AND EVEN THOUGH NONE WERE MADE.  EXACTLY THE SAME INCREASE WOULD RESULT
WHETHER THE SHORTAGE WERE INDUCED BY THE EXPANDED BUSINESS OF A
COMMERCIAL OPERATOR OR BY GOVERNMENT REQUISITION.  IT SIMPLY IS NOT
TRUE, THEREFORE, THAT THE ENHANCED PRICE RESULTING FROM SHORTAGE IS A
PRICE WHICH THE NEED NECESSITATING THE TAKING, AS OPPOSED TO NEED OF
THE TUG OPERATORS, CREATED. 

THE NEED OF THE TUG OPERATORS, MOREOVER, NOT MERELY FOR THE TUGS THAT
HAD BEEN TAKEN, BUT FOR ADDITIONAL TUGS, WAS IN ITS TURN ONLY ONE
FACTOR IN THE COMPLEX WHICH MAKES UP DEMAND IN A PERIOD OF HIGH COSTS,
HIGH WAGES, SHORTAGES, AND INFLATION.  WE SPEAK, IN REFERRING TO THE
INTERACTING FORCES OF SUCH A PERIOD, OF THE "INFLATIONARY SPIRAL," AND
ALTHOUGH A REQUISITION BY THE GOVERNMENT IN THE MIDST OF THIS DYNAMIC
PROCESS UNDOUBTEDLY HAS SOME EFFECT IN ACCELERATING IT, IT IS AN EFFECT
WHICH LOSES ITS ASCERTAINABLE SIGNIFICANCE BY BEING MERGED WITH
COUNTLESS OTHER FACTORS.  WHATEVER MAY BE THE PROPER SCOPE OF THE
DECLARATION IN SEC. 902(A) THAT THE VALUE OF VESSELS TAKEN DURING THE
NATIONAL EMERGENCY SHALL NOT "BE DEEMED ENHANCED BY THE CAUSES
NECESSITATING THE TAKING OR USE," THE WARTIME ECONOMY ITSELF CANNOT BE
REGARDED AS SUCH A CAUSE.  EVEN ASSUMING THAT THERE MAY BE OTHER
CIRCUMSTANCES THAN THOSE OF GAMBLING ON THE RESULT OF AN AWARD IN WHICH
A CONNECTION BETWEEN THE TAKER'S INTERVENTION IN THE MARKET AND AN
ENHANCEMENT OF PRICE MIGHT BE TRACED, ON THIS RECORD IT WOULD BE ASKING
FOR THE IMPOSSIBLE TO INSIST ON AN ATTEMPT TO TRACE ONE.  THE
GOVERNMENT HAS ADVANCED NO BASIS FOR THE UNDERTAKING; IT POINTS TO NO
EVIDENCE ALREADY OFFERED WHICH WOULD JUSTIFY IT AND SUGGESTS NONE THAT
IT MIGHT HAVE OFFERED.  UNDER THE CIRCUMSTANCES, WE SHOULD NOT REQUIRE
THE COURT OF CLAIMS TO EMBARK UPON SO MURKY A SEA OF SPECULATION.  CF.
INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S. 216, 223-24. 

IF WHAT I HAVE SAID APPEALS TO COMMON SENSE, MARKET VALUES WHICH HAVE
BEEN INCREASED AS THE RESULT OF THE INTERACTION OF SUPPLY AND DEMAND IN
A WARTIME ECONOMY CANNOT BE REJECTED AS THE APPLICABLE MEASURE OF JUST
COMPENSATION MERELY BECAUSE THE COMPETITION OF THE GOVERNMENT, REGARDED
FROM THE POINT OF VIEW OF AN EXERCISE IN TRACING ULTIMATE CAUSES, MAY
THEORETICALLY BE DEEMED TO HAVE CONTRIBUTED TO THE INCREASE.  NOR IS IT
TO MAKE A FETISH OF MARKET VALUE TO AFFIRM ITS SELECTION AS A STANDARD
IN A CASE WHERE NO OTHER STANDARD THAT OFFERS THE POSSIBILITY OF
OBSERVANCE HAS BEEN PUT FORWARD.  THE RECORD RULES OUT ANY INCREASE DUE
TO SPECULATION, THE ONLY OTHER SUGGESTED FORM OF ENHANCEMENT
ATTRIBUTABLE TO THE GOVERNMENT'S NEED.  SINCE IT IS OUR DUTY TO AVOID
CONSTITUTIONAL ADJUDICATION, SEE THE CONCURRING OPINION OF MR. JUSTICE
BRANDEIS IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 341,
346 ET SEQ., AND RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 568 ET
SEQ., THE DECISION BELOW SHOULD BE AFFIRMED WITHOUT REACHING THE
CONSTITUTIONAL ISSUES RAISED BY THE GOVERNMENT'S CONSTRUCTION OF SEC.
902(A). 

FN1  "WHENEVER THE PRESIDENT SHALL PROCLAIM THAT THE SECURITY OF THE
NATIONAL DEFENSE MAKES IT ADVISABLE OR DURING ANY NATIONAL EMERGENCY
DECLARED BY PROCLAMATION OF THE PRESIDENT, IT SHALL BE LAWFUL FOR THE
COMMISSION TO REQUISITION OR PURCHASE ANY VESSEL OR OTHER WATERCRAFT
OWNED BY CITIZENS OF THE UNITED STATES, OR UNDER CONSTRUCTION WITHIN
THE UNITED STATES, OR FOR ANY PERIOD DURING SUCH EMERGENCY, TO
REQUISITION OR CHARTER THE USE OF ANY SUCH PROPERTY.  THE TERMINATION
OF ANY EMERGENCY SO DECLARED SHALL BE ANNOUNCED BY A FURTHER
PROCLAMATION BY THE PRESIDENT.  WHEN ANY SUCH PROPERTY OR THE USE
THEREOF IS SO REQUISITIONED, THE OWNER THEREOF SHALL BE PAID JUST
COMPENSATION FOR THE PROPERTY TAKEN OR FOR THE USE OF SUCH PROPERTY,
BUT IN NO CASE SHALL THE VALUE OF THE PROPERTY TAKEN OR USED BE DEEMED
ENHANCED BY THE CAUSES NECESSITATING THE TAKING OR USE.  IF ANY
PROPERTY IS TAKEN AND USED UNDER AUTHORITY OF THIS SECTION, BUT THE
OWNERSHIP THEREOF IS NOT REQUIRED BY THE UNITED STATES, SUCH PROPERTY
SHALL BE RESTORED TO THE OWNER IN A CONDITION AT LEAST AS GOOD AS WHEN
TAKEN, LESS ORDINARY WEAR AND TEAR, OR THE OWNER SHALL BE PAID AN
AMOUNT FOR RECONDITIONING SUFFICIENT TO PLACE THE PROPERTY IN SUCH
CONDITION.  THE OWNER SHALL NOT BE PAID FOR ANY CONSEQUENTIAL DAMAGES
ARISING FROM A TAKING OR USE OF PROPERTY UNDER AUTHORITY OF THIS

FN2  THE ADVISORY BOARD ON JUST COMPENSATION, CONSISTING OF JUDGE
LEARNED HAND, JUDGE JOHN J. PARKER, AND JUDGE JOSEPH C. HUTCHESON, JR.,
WAS APPOINTED UNDER EXEC. ORDER 9387, OCT. 15, 1943, 8 FED. REG. 14105,
3 C.F.R. 1943 SUPP. 48-49.  THE FOLLOWING IS THE MOST IMPORTANT OF THE
RULES ADOPTED BY THE BOARD: 

"RULE 4.  FROM THE VALUE AT THE TIME OF TAKING, THERE SHOULD BE
DEDUCTED ANY ENHANCEMENT DUE, TO THE GOVERNMENT'S NEED OF VESSELS WHICH
HAS NECESSITATED THE TAKING, TO THE PREVIOUS TAKING OF VESSELS OF
SIMILAR TYPE, OR TO A PROSPECTIVE TAKING, REASONABLY PROBABLE, WHETHER
SUCH NEED, TAKING, OR PROSPECT, OCCURRED BEFORE OR AFTER THE
DECLARATION OF THE NATIONAL EMERGENCY OF MAY 27, 1941.  ENHANCEMENT DUE
TO A GENERAL RISE IN PRICES OR EARNINGS, WHENEVER OCCURRING, SHOULD NOT
BE DEDUCTED.  IN THE APPLICATION OF THIS RULE NEITHER THE PROCLAMATION
OF LIMITED EMERGENCY OF SEPTEMBER 8, 1939, NOR THE FACTS EXISTING AT
THAT TIME, ARE IN THEMSELVES OF SIGNIFICANCE.  THE BOARD DOES NOT
DETERMINE WHETHER ANY ENHANCEMENT AFTER MAY 27, 1941, OTHER THAN AS
ENUMERATED ABOVE AS DEDUCTIBLE, SHOULD BE EXCLUDED; SINCE THE BOARD IS
ADVISED THAT THE VALUE OF OCEANGOING VESSELS WAS HIGHER ON MAY 27,
1941, THAN AT THE TIME OF TAKING, AND THAT ANY ENHANCEMENT SINCE MAY
27, 1941, IN VESSELS OF OTHER TYPES, NOT DEDUCTIBLE UNDER THE
FOREGOING, IS ATTRIBUTABLE TO A GENERAL RISE IN PRICES OR EARNINGS, AND
SHOULD THEREFORE NOT BE DEDUCTED."  HOUSE COMMITTEE ON THE MERCHANT
MARINE AND FISHERIES DOC. NO. 47, 78TH CONG., 1ST SESS. 

FN3  THE CORE OF THE PROBLEM EMERGED IN THE FOLLOWING COLLOQUY AT THE
HEARING HELD BEFORE THE ADVISORY BOARD ON JUST COMPENSATION: 

"JUDGE HAND:  IT COMES TO THIS, THAT A SOCIETY WHICH FORESEES A
SHORTAGE, A CONSEQUENT SHORTAGE IN ONE KIND OF SUPPLY, MUST EITHER
PROCEED AT ONCE TO SEIZE, OR MUST SUBJECT ITSELF AND SOCIETY AT LARGE
TO THE DISADVANTAGE WHICH COMES FROM THE SHORTAGE.  BUT WHEN THE
SHORTAGE COMES, IT MAY NOT SAY 'SO FAR, AND NO FARTHER.  WE LEAVE THE
PROPERTY IN YOUR HANDS FOR USE, BUT WE ARE HELPLESS TO PREVENT YOUR
FURTHER EXPLOITATION OF SOCIETY BY YOUR SPECIAL INTEREST.' 

"IS THAT YOUR POSITION? 

"MR. MCINNIS:  I THINK, YOUR HONOR, THAT THAT IS THE LOGICAL
IMPLICATION OF MY ARGUMENT. 

"JUDGE HAND: IT DOES SEEM TO ME, IF IT IS ALL PERFECTLY CLEARLY KNOWN
IN ADVANCE, TO PUT A SOCIETY IN A RATHER HELPLESS POSITION AS AGAINST A
SMALL GROUP THAT HAS CONTROL OF ALL OF ONE VITAL COMMODITY.  YOU CAN
IMAGINE CASES WHERE THAT WOULD WORK A RESULT THAT NO ONE WOULD
SUPPORT.  YOU CAN IMAGINE THE DESTRUCTION OF A LARGE PART OF FOOD IN A
COMMUNITY WHERE THERE WAS NO IMMEDIATE RELIEF, AND, AS I UNDERSTAND
YOUR ARGUMENT, THEY EITHER HAVE TO TAKE IT NOW, OR WHEN THEY WOULD FIND
IT MORE CONVENIENT TO TAKE IT THEY SHOULD HAVE TO SUBMIT TO THE
INCREASE IN VALUE, HOWEVER CLEARLY THE OWNERS WERE ADVISED AT A GIVEN
POINT, 'THIS MARKS THE END OF THAT KIND OF PROFIT - SCARCITY PROFIT.' 

"MR. MCINNIS:  I THINK THAT IS CORRECT, JUDGE.  BUT I WOULD AGREE - 

"JUDGE HAND (INTERPOSING):  IT MIGHT BE THAT THE CONSTITUTION
PROTECTS THAT KIND OF PROFIT.  I WON'T SAY NOW."  1 REPORT OF
PROCEEDINGS OF THE ADVISORY BOARD 134-135(UNITED STATES MARITIME
COMMISSION, WAR SHIPPING ADMINISTRATION, MIMEOGRAPHED, 1943). 
..END :




















UNITED STATES V. WITTEK, 337 U.S. 346 


NO. 473.  ARGUED APRIL 20-21, 1949.  - DECIDED JUNE 13, 1949.  - 83 U.S.
APP. D.C. 377, 171 F.2D 8, REVERSED. 


THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT OF DECEMBER 2, 1941, 55
STAT. 788, AS AMENDED, IS NOT APPLICABLE TO THE UNITED STATES AS
LANDLORD OF GOVERNMENT-OWNED DEFENSE HOUSING IN THE DISTRICT OF
COLUMBIA.  PP. 347-368. 

1.  THE ACT MAKES NO DISTINCTION BETWEEN THE UNITED STATES AS A
LANDLORD OF DEFENSE HOUSING AND AS A LANDLORD OF LOW-RENT HOUSING; AND,
WHEN THE CIRCUMSTANCES ARE APPRECIATED, IT IS PRACTICALLY INCONCEIVABLE
THAT CONGRESS WOULD HAVE SUBJECTED ITS GOVERNMENT-OWNED LOW-RENT
HOUSING IN THE DISTRICT OF COLUMBIA TO THE CONTROL PRESCRIBED BY THE
DISTRICT OF COLUMBIA EMERGENCY RENT ACT IN ADDITION TO THE CONTROL
PRESCRIBED BY EXISTING LEGISLATION AND THAT OF THE PRESIDENTIALLY
DESIGNATED ADMINISTRATORS OF LOW-RENT HOUSING IN THE DISTRICT OF
COLUMBIA.  PP. 351-358. 

2.  THE ACT CONTAINS NO EXPRESS REFERENCE TO THE UNITED STATES AS A
LANDLORD OR TO ITS APPLICATION TO GOVERNMENT-OWNED HOUSING OF ANY KIND;
RENTAL RATES IN GOVERNMENT-OWNED DEFENSE HOUSING WERE UNDER COMPLETE
GOVERNMENTAL CONTROL; IT APPEARS TO HAVE BEEN ENACTED AS A TEMPORARY
MEASURE SUPPLEMENTING, RATHER THAN SUPERSEDING, THE CONTRIBUTION
ALREADY BEING MADE BY THE PERMANENT FEDERAL HOUSING AUTHORITIES TOWARD
MEETING THE HOUSING CRISIS; AND THERE WAS NO NEED TO APPLY TO
GOVERNMENT-OWNED DEFENSE HOUSING THE NEW RENT CONTROL THAT IT IMPOSED
UPON PRIVATELY OWNED HOUSING.  PP. 358-363. 

3.  BOTH THE FORM AND THE PRACTICAL OPERATION OF THE NATIONAL
EMERGENCY PRICE CONTROL ACT INDICATE THAT CONGRESS DID NOT SEEK BY THE
DISTRICT OF COLUMBIA EMERGENCY RENT ACT TO PLACE GOVERNMENT-OWNED
HOUSING UNDER A LOCAL RENT ADMINISTRATOR.  PP. 364-367. 

4.  THE CONCLUSION HERE REACHED IS SUPPORTED BY THE FACT THAT THE
DISTRICT ADMINISTRATOR OF RENT CONTROL HAS TAKEN NO PART IN THIS
PROCEEDING AND THERE IS NO EVIDENCE THAT HE HAS SOUGHT AT ANY TIME TO
EXERCISE JURISDICTION OVER THE UNITED STATES AS A LANDLORD OF EITHER
LOW-RENT HOUSING OR DEFENSE HOUSING.  P. 368. 

UNITED STATES V. WITTEK. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA FOUND THAT THE
DISTRICT OF COLUMBIA EMERGENCY RENT ACT WAS NOT APPLICABLE TO THE
UNITED STATES AND ORDERED POSSESSION OF PREMISES OWNED BY IT IN A
DEFENSE-HOUSING PROJECT IN THE DISTRICT OF COLUMBIA GIVEN TO THE UNITED
STATES.  THE MUNICIPAL COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
AFFIRMED.  75 WASH. LAW REP. 982, 54 A.2D 747.  THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT REVERSED.  83 U.S. APP.
D.C. 377, 171 F.2D 8.  THIS COURT GRANTED CERTIORARI.  336 U.S. 931. 
REVERSED, P. 368. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER THE UNITED STATES, AS THE OWNER OF
BELLEVUE HOUSES, A DEFENSE-HOUSING PROJECT IN THE DISTRICT OF COLUMBIA,
IS A "LANDLORD" WITHIN THE MEANING OF THE DISTRICT OF COLUMBIA
EMERGENCY RENT ACT,  FN1  WITH PARTICULAR REFERENCE TO RIGHTS OF
OCCUPANCY AND RATES OF RENTAL.  FOR THE REASONS TO BE STATED, WE HOLD
THAT IT IS NOT. 

THE UNITED STATES OF AMERICA, PETITIONER HEREIN, FILED ITS AMENDED
COMPLAINT IN THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA AGAINST
WITTEK, THE RESPONDENT, SEEKING POSSESSION OF THE PREMISES OCCUPIED BY
HIM IN THE DEFENSE-HOUSING PROJECT IN THE DISTRICT OF COLUMBIA KNOWN AS
BELLEVUE HOUSES.  THE COMPLAINT ALLEGED THAT THE PREMISES WERE OWNED BY
THE UNITED STATES AND THAT THE HOUSING ACCOMMODATIONS HAD BEEN
CONSTRUCTED BY THE NAVY DEPARTMENT UNDER AUTHORITY OF SEC. 201 OF THE
SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941.  FN2
THIS SUMMARY PROCEEDING WAS BROUGHT UNDER SEC. 20, 31 STAT. 1193, 41
STAT. 555, D.C. CODE (1940) SEC. 11-735.  THE RESPONDENT'S TENANCY HAD
BEEN TERMINATED BY NOTICE TO QUIT, SERVED UPON HIM FEBRUARY 28, 1946,
AS REQUIRED BY SEC. 1219, 31 STAT. 1382, D.C. CODE (1940) SEC. 45-902,
AND THE UNITED STATES CLAIMED THAT HE NO LONGER HAD ANY RIGHT TO
POSSESSION.  FN3  THE RESPONDENT'S DEFENSE, NOW BEFORE US, IS THAT THE
UNITED STATES DID NOT ESTABLISH ANY OF THE ADDITIONAL FACTS WHICH THE
DISTRICT OF COLUMBIA EMERGENCY RENT ACT REQUIRED A LANDLORD TO
ESTABLISH AS A CONDITION OF SUCH LANDLORD'S RECOVERY OF POSSESSION OF
HOUSING ACCOMMODATIONS TO WHICH THE ACT APPLIED.  FN4  THE PARTIES
AGREED THAT THE CAUSE BE DISPOSED OF BY THE MUNICIPAL COURT UPON THE
PLEADINGS, PRETRIAL STIPULATIONS AND CERTAIN EXHIBITS.  THAT COURT
FOUND THAT IT HAD JURISDICTION, THAT THE EMERGENCY RENT ACT DID NOT
APPLY TO THE UNITED STATES AS THE LANDLORD OF THE PREMISES IN QUESTION
AND IT ORDERED POSSESSION OF THE PREMISES TO BE GIVEN TO THE UNITED
STATES.  THE MUNICIPAL COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
AFFIRMED THE JUDGMENT.  FN5  THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT ALLOWED AN APPEAL, LIMITED TO TWO
QUESTIONS.  FN6  IT DISPOSED OF ONE BY SUSTAINING THE JURISDICTION OF
THE MUNICIPAL COURT.  IT ANSWERED THE OTHER BY HOLDING THAT THE
DISTRICT OF COLUMBIA EMERGENCY RENT ACT DID APPLY TO THE UNITED STATES
AS THE LANDLORD IN THIS PROCEEDING.  IT ORDERED THE JUDGMENT REVERSED
AND THE CAUSE REMANDED TO THE MUNICIPAL COURT OF APPEALS.  83 U.S. APP.
D.C. 377, 171 F.2D 8.  WE GRANTED CERTIORARI BECAUSE OF THE SUBSTANTIAL
IMPORTANCE OF THE DECISION TO THE ADMINISTRATION OF GOVERNMENT-OWNED,
LOW-RENT HOUSING, AS WELL AS TO GOVERNMENT-OWNED, DEFENSE HOUSING, IN
THE DISTRICT OF COLUMBIA.  336 U.S. 931. 

I. IF THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT IS NOW APPLIED TO
GOVERNMENT-OWNED, DEFENSE HOUSING IN THE DISTRICT, SUCH AS BELLEVUE
HOUSES, WE ARE WARNED THAT WE SOON MAY BE COMPELLED TO HOLD THE SAME
INTERPRETATION APPLICABLE TO GOVERNMENT-OWNED, LOW-RENT HOUSING IN THE
DISTRICT. 

WHEN THE CIRCUMSTANCES ARE APPRECIATED, IT IS PRACTICALLY
INCONCEIVABLE THAT CONGRESS WOULD HAVE SUBJECTED ITS GOVERNMENT-OWNED,
LOW-RENT HOUSING PROGRAM IN THE DISTRICT OF COLUMBIA TO THE ADDITIONAL
CONTROL PRESCRIBED BY THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT.  YET
THE INTERPRETATION BY WHICH THE COURT BELOW HELD THAT ACT APPLICABLE TO
THE UNITED STATES AS A LANDLORD OF DEFENSE HOUSING MIGHT MAKE THE ACT
EQUALLY APPLICABLE TO THE UNITED STATES AS A LANDLORD OF ALL OTHER
HOUSING ACCOMMODATIONS, INCLUDING ITS LOW-RENT HOUSING.  THE DISTRICT
OF COLUMBIA EMERGENCY RENT ACT CAME BEFORE CONGRESS, LATE IN 1941,
THROUGH AND WITH THE SUPPORT OF THE CONGRESSIONAL COMMITTEES ON THE
DISTRICT OF COLUMBIA IN THE HOUSE OF REPRESENTATIVES AND THE SENATE. 
IT WAS DESIGNED AS A MODEL, PREWAR, TEMPORARY, EMERGENCY MEASURE TO
FORESTALL THE SKYROCKETING OF RENTALS OF HOUSING ACCOMMODATIONS FOR
DEFENSE WORKERS THEN CONCENTRATING IN THE DISTRICT OF COLUMBIA. 
OBVIOUSLY, IT WAS DIRECTED, AT LEAST PRIMARILY, AT PRIVATE LANDLORDS. 
FN7 IT SOUGHT TO STABILIZE HOUSING RENTALS AT ABOUT THE LEVEL OF
JANUARY 1, 1941, WHICH IT SELECTED AS "A LEVEL FIXED (SO FAR AS
PRACTICABLE) BY FREE COMPETITION; ...  "  FN8 

CONGRESS TRADITIONALLY HAS RELIED HEAVILY UPON ITS COMMITTEES ON THE
DISTRICT OF COLUMBIA IN DISTRICT MATTERS.  THROUGH THEM IT MUST HAVE
SEEN THIS MEASURE IN THE LIGHT OF ITS OWN LONG-TERM, LOW-RENT HOUSING
PROGRAM FOR THE DISTRICT.  IN APPRAISING THE ATTITUDE OF THESE
COMMITTEES AND OF CONGRESS TOWARD GOVERNMENT-OWNED, LOW-RENT HOUSING AS
A SUBSTITUTE FOR SUBSTANDARD HOUSING IN THE DISTRICT, IT IS IMPOSSIBLE
TO OVEREMPHASIZE EITHER THE SERIOUSNESS OF THE NEED OR THE LONG
STANDING CONCERN OF CONGRESS ABOUT THAT NEED.  THE SUBSTANDARD HOUSING
IN THE DISTRICT HAS BEEN A FREQUENT SUBJECT OF CONGRESSIONAL DEBATE,
STUDY AND LEGISLATION SINCE THE CIVIL WAR.  THE NARROW ALLEYS IN THE
INTERIOR OF 200 OR MORE OF THE LARGE DOWNTOWN CITY BLOCKS OF THE
DISTRICT, ALTHOUGH UNFIT FOR HABITATION, HAVE BEEN NOTORIOUSLY
CONGESTED WITH A LARGE POPULATION FOR WHICH ADEQUATE HOUSING NEVER HAS
EXISTED.  THIS CONDITION HAS BEEN WIDELY PUBLICIZED AND ONLY PARTIAL
SUCCESS HAS BEEN ATTAINED THROUGH THE EFFORTS TO IMPROVE IT.  OUT OF
THIS NEED THERE HAS EVOLVED A LONG-TERM CONGRESSIONAL PROGRAM TO
ELIMINATE THESE SUBSTANDARD DWELLINGS.  DUE TO AN OBVIOUS LACK OF
SUITABLE PRIVATE HOUSING, THIS PROGRAM HAS LED TO THE CONSTRUCTION OF A
NUMBER OF GOVERNMENT-BUILT, OWNED AND OPERATED LOW-RENT HOUSING
ACCOMMODATIONS.  IN 1934, CONGRESS ENACTED THE DISTRICT OF COLUMBIA
ALLEY DWELLING ACT, 48 STAT. 930, D.C. CODE (1940) SEC. 5-103, ET SEQ.
IT AUTHORIZED THE PRESIDENT TO ACQUIRE LAND ADJACENT TO THE INHABITED
ALLEYS IN THE DISTRICT, ERECT BUILDINGS THEREON AND RENT THEM "UPON
SUCH TERMS AND CONDITIONS AS HE MAY DETERMINE:  ...  " FN9  PURSUANT TO
THIS ACT, HE DESIGNATED THE CHAIRMAN (OFFICIALLY ENTITLED THE
PRESIDENT) OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA,
THE EXECUTIVE OFFICER (LATER THE DIRECTOR) OF THE NATIONAL CAPITAL PARK
AND PLANNING COMMISSION AND THE DIRECTOR OF HOUSING OF THE FEDERAL
EMERGENCY ADMINISTRATION OF PUBLIC WORKS TO CARRY OUT ITS PURPOSES.  HE
NAMED THE GROUP THE ALLEY DWELLING AUTHORITY.  FN10  IN 1938, HE
SUBSTITUTED THE ARCHITECT OF THE CAPITOL FOR THE THIRD OFFICIAL
CONSTITUTING THE AUTHORITY,  FN11  AND, IN 1943, HE CHANGED ITS NAME TO
THAT OF THE NATIONAL CAPITAL HOUSING AUTHORITY.  FN12  IT IS THIS
PRESIDENTIALLY DESIGNATED AUTHORITY THAT HAS OPERATED, FOR THE UNITED
STATES, ALL OF ITS LOW-RENT HOUSING PROJECTS IN THE DISTRICT.  IT IS
THIS AUTHORITY THAT HAS FIXED THE RENTALS AND PASSED UPON THE
RESPECTIVE RIGHTS OF TENANTS TO OCCUPY PREMISES IN THOSE PROJECTS.  ITS
COMPOSITION, INCLUDING TWO UNITED STATES OFFICIALS AND THE PRESIDENT OF
THE BOARD OF COMMISSIONERS OF THE DISTRICT, DEMONSTRATES THE
INCONGRUITY OF AN ATTEMPT, SUCH AS IS HERE SUGGESTED, TO SUBJECT IT TO
THE CONTROL OF THE DISTRICT'S ADMINISTRATOR OF RENT CONTROL, HIMSELF
APPOINTED BY THE BOARD OF COMMISSIONERS OF THE DISTRICT.  THE
RECOGNIZED RESPONSIBILITY OF THIS AUTHORITY AS A FEDERAL HOUSING AGENCY
FURTHER APPEARS FROM THE FACT THAT, IN DUE COURSE, IT WAS CHOSEN BY THE
GOVERNMENT TO BE THE OPERATING LESSEE OF MORE THAN 5,000 GOVERNMENT
OWNED, DEFENSE-HOUSING, DWELLING UNITS, WHICH WERE BUILT BY THE UNITED
STATES IN OR NEAR THE DISTRICT, INCLUDING THE BELLEVUE HOUSES. 

THE ISSUE BEFORE US DOES NOT TURN UPON WHAT PARTICULAR AGENCY IS
OPERATING THE BELLEVUE HOUSES OR THE OTHER GOVERNMENT-OWNED HOUSING OF
THE UNITED STATES.  THE ISSUE IS WHETHER THE UNITED STATES, THROUGH
WHATEVER AGENCY IT OPERATES, IS TO BE CONTROLLED IN ITS RENTAL POLICIES
BY THE DISTRICT ADMINISTRATOR OF RENT CONTROL.  IN DETERMINING THE
MEANING OF THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT, APPROVED
DECEMBER 2, 1941, WHICH CREATED THE DISTRICT ADMINISTRATOR OF RENT
CONTROL, IT THEREFORE IS MATERIAL TO NOTE THAT THE UNITED STATES, IN
1941, ALREADY WAS ACTING AS A LANDLORD OF MUCH GOVERNMENT-OWNED HOUSING
IN THE DISTRICT AND THAT, IN EACH INSTANCE, IT HAD PLACED THOSE
OPERATIONS IN THE CONTROL OF A NATIONAL OR PRESIDENTIALLY DESIGNATED
AUTHORITY OR OFFICIAL WITH AUTHORIZATION FITTED TO THE PARTICULAR AND
VARIED PURPOSES OF THAT HOUSING.  THIS FACT IS OF CRUCIAL SIGNIFICANCE
IN CONNECTION WITH THE LOW-RENT HOUSING IN THE DISTRICT WHICH HAD BEEN
IN OPERATION FOR SEVERAL YEARS.  ITS DISTINCTLY SOCIAL WELFARE AND
RELIEF PURPOSES ALREADY WERE IN THE HANDS OF THE ALLEY DWELLING
AUTHORITY. 

BEGINNING IN 1934, THE ALLEY DWELLING AUTHORITY BUILT AND PUT INTO
OPERATION FIVE GOVERNMENT-OWNED, LOW-RENT HOUSING PROJECTS (INCLUDING
112 DWELLING UNITS) AND THREE COMMERCIAL PROPERTIES.  FN13 IN 1938,
TITLE II WAS ADDED TO THE DISTRICT OF COLUMBIA ALLEY DWELLING ACT, 52
STAT. 1188, D.C. CODE (1940) SEC. 5-112, ET SEQ., AND THE AUTHORITY WAS
DESIGNATED ALSO AS A PUBLIC HOUSING AGENCY TO CARRY OUT THE PURPOSES OF
THE UNITED STATES HOUSING ACT OF 1937, 50 STAT. 888, ET SEQ. SEE 42
U.S.C. (1940 ED.)  SEC.  1401, ET SEQ. THIS ENABLED IT TO SECURE LOANS
TO BUILD LOW-RENT HOUSING ACCOMMODATIONS AND ITS PROGRAM PROMPTLY
EXPANDED.  BY THE END OF 1941 IT HAD COMPLETED, UNDER TITLE II, SIX
MORE LOW-RENT PROJECTS, INCLUDING 1,613 DWELLING UNITS, AND THE
GOVERNMENT'S BRIEF IN THE INSTANT CASE STATES THAT IT IS NOW MANAGING,
UNDER THAT TITLE, 3,147 SUCH DWELLINGS.  THE CHARACTER OF THESE
DWELLINGS IS PLAIN FROM THE DEFINITION OF "LOW-RENT HOUSING" IN THE
HOUSING ACT.  FN14  THIS WAS PREWAR, POOR-RELIEF, LOW-RENT HOUSING,
RATHER THAN DEFENSE HOUSING.  THESE PROJECTS WERE SUBSIDIZED.  THE
RENTALS WERE KEYED TO THE INADEQUACY OF THE INCOME OF THE RESPECTIVE
TENANTS.  THE RENTALS DID NOT PURPORT TO EQUAL THE LEVEL OF THOSE FIXED
BY FREE COMPETITION FOR COMPARABLE PRIVATELY OWNED HOUSING.  IT WAS AN
IMPORTANT FEATURE OF THE OPERATING POLICY OF THESE PROJECTS THAT A
TENANT BE DISPOSSESSED, OR "GRADUATED" AS THE AUTHORITY TERMED IT,
WHENEVER THAT TENANT'S FINANCIAL NEEDS NO LONGER ENTITLED HIM TO THE
SUBSIDIZED PRIVILEGES.  THE INAPPROPRIATENESS OF APPLYING TO SUCH
PROJECTS RENTALS BASED UPON LEVELS FIXED BY FREE COMPETITION AS OF
JANUARY 1, 1941, UNDER THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT, IS
EVIDENT.  THAT ACT'S POLICY OF RENT CONTROL FOSTERED THE CONTINUANCE OF
TENANCIES REGARDLESS OF THE FINANCIAL STATUS OF THE INDIVIDUAL TENANT. 
IF APPLIED TO LOW-RENT HOUSING IT WOULD GIVE VESTED RIGHTS TO RELIEF
CLIENTS ONCE INSTALLED, RATHER THAN TO NEW CLIENTS IN GREATER NEED.  IN
THE ABSENCE OF AN EXPRESS STATEMENT BY CONGRESS, IT IS NOT CONCEIVABLE
THAT CONGRESS, WITH ITS FAMILIARITY WITH THESE RELIEF OPERATIONS OF THE
UNITED STATES AS THE LANDLORD OF SUCH LOW-RENT, RELIEF HOUSING, WOULD
SUBJECT THE ALLEY DWELLING AUTHORITY IN THE RENTAL POLICY OF SUCH
HOUSING TO THE CONTROL OF A LOCAL ADMINISTRATOR OF RENT CONTROL UNDER
AN ACT DESIGNED TO MEET THE PROBLEMS OF EMPLOYED WAR WORKERS RATHER
THAN THE PROBLEMS OF INDIGENT FAMILIES, ALREADY WHOLLY OR PARTIALLY
DEPENDENT UPON PUBLIC SUPPORT.  SUCH A SUBJECTION, HOWEVER, APPARENTLY
WOULD FOLLOW FROM THE REASONING OF THE COURT BELOW THAT THE USE BY
CONGRESS OF THE GENERAL TERM "LANDLORD," IN THE DISTRICT OF COLUMBIA
EMERGENCY RENT ACT, MUST SUBJECT THE UNITED STATES, AS THE LANDLORD OF
GOVERNMENT-OWNED, DEFENSE-HOUSING ACCOMMODATIONS, TO THE PROVISIONS OF
THAT ACT.  THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT MAKES NO
DISTINCTION BETWEEN THE UNITED STATES AS A LANDLORD OF LOW-RENT HOUSING
AND AS A LANDLORD OF DEFENSE HOUSING.  IF THE ACT APPLIES TO THE
BELLEVUE HOUSES, IT APPARENTLY MAY BE APPLIED EQUALLY TO ALL OF THE
ACTIVITIES OF THE UNITED STATES AS A LANDLORD.  THEREFORE, WHILE THE
COMPLAINT IN THE INSTANT CASE DOES NOT SEEK TO DISPOSSESS A TENANT OF A
GOVERNMENT-OWNED, LOW-RENT HOUSING UNIT, WE NOTE THE WARNING OF
GOVERNMENT COUNSEL THAT, IF WE HOLD THAT THE DISTRICT OF COLUMBIA
EMERGENCY RENT ACT IS APPLICABLE IN THE INSTANT CASE, WE SOON MAY BE
COMPELLED TO HOLD IT APPLICABLE ALSO TO THE UNITED STATES AS THE
LANDLORD OF LOW-RENT HOUSING. 

II.  THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT DOES NOT APPLY TO
GOVERNMENT-OWNED, DEFENSE HOUSING IN THE DISTRICT, SUCH AS THE BELLEVUE
HOUSES. 

A. THE ACT CONTAINS NO EXPRESS REFERENCE TO THE UNITED STATES AS A
LANDLORD OR TO THE APPLICATION OF THE ACT TO GOVERNMENT-OWNED HOUSING
OF ANY KIND.  FN15  A GENERAL STATUTE IMPOSING RESTRICTIONS DOES NOT
IMPOSE THEM UPON THE GOVERNMENT ITSELF WITHOUT A CLEAR EXPRESSION OR
IMPLICATION TO THAT EFFECT.  FN16  THE TEXT, SURROUNDING CIRCUMSTANCES
AND LEGISLATIVE HISTORY OF THIS DISTRICT ACT NEITHER EXPRESS NOR IMPLY
A CHANGE IN THE AUTHORITY ALREADY VESTED IN PERMANENT FEDERAL AGENCIES
IN THEIR MANAGEMENT OF THE GOVERNMENT-OWNED HOUSING IN THE DISTRICT. 
THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT THUS APPEARS TO HAVE BEEN
ENACTED AS A TEMPORARY MEASURE SUPPLEMENTING, RATHER THAN SUPERSEDING,
THE CONTRIBUTION ALREADY BEING MADE BY THE PERMANENT FEDERAL HOUSING
AUTHORITIES TOWARD MEETING THE HOUSING CRISIS.  WE FIND NO EVIDENCE
THAT CONGRESS BELIEVED THAT THE MANAGERS OF ANY OF ITS HOUSING PROJECTS
IN THE DISTRICT WOULD BE "TEMPTED  ... TO DEMAND EXORBITANT RENTALS" OR
ENGAGE IN THE "RENT-GOUGING PRACTICES  ...  " AGAINST WHICH THE NEW ACT
WAS DIRECTED.  FN17  IT SEEMS OBVIOUS THAT THE NEED FOR DISTRICT RENT
CONTROL WAS NOT IN THE OPERATION OF GOVERNMENT-OWNED HOUSING, WHERE THE
FEDERAL GOVERNMENT ALREADY HAD COMPLETE CONTROL OVER THE RENTALS, BUT
WAS IN THE OPERATION OF PRIVATELY OWNED HOUSING, WHERE NEITHER THE
FEDERAL NOR DISTRICT GOVERNMENT HAD ANY CONTROL. 

B. GOVERNMENT-OWNED, DEFENSE HOUSING DID NOT REQUIRE THE NEW RENTAL
CONTROL, IN THE DISTRICT, THAT CONGRESS IMPOSED UPON PRIVATELY OWNED
HOUSING BY THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT.  THE INCREASING
NUMBER OF GOVERNMENT-OWNED, DEFENSE-HOUSING UNITS TESTIFIED TO THE
SATISFACTION OF CONGRESS AND OF THE ADMINISTRATION WITH SUCH PROJECTS. 
RENTAL RATES IN THEM WERE UNDER COMPLETE GOVERNMENTAL CONTROL.  AT THE
TIME OF THE ENACTMENT OF THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT,
DECEMBER 2, 1941, DEFENSE HOUSING COULD BE CONSTRUCTED IN THE DISTRICT,
AND ELSEWHERE, UNDER SEC. 201 OF THE SECOND SUPPLEMENTAL NATIONAL
DEFENSE APPROPRIATION ACT, 1941, APPROVED SEPTEMBER 9, 1940, 54 STAT.
872, 883, OR UNDER THE LANHAM ACT, APPROVED OCTOBER 14, 1940, 54 STAT.
1125.  FN18  BELLEVUE HOUSES WERE BUILT BY THE NAVY UNDER THE FIRST OF
THOSE ACTS.  THE RENT CONTROL OF DEFENSE HOUSING UNDER THAT ACT WAS, IN
THE FIRST INSTANCE, EXPRESSLY VESTED IN THE DISCRETION OF THE SECRETARY
OF WAR OR OF THE NAVY, AND THE TENANTS WERE RESTRICTED TO WAR WORKERS. 
FN19  THIS PROVISION WAS AMENDED, JUNE 28, 1941, SO AS TO GIVE TO THE
AGENCIES ADMINISTERING THAT HOUSING THE SAME POWERS AND DUTIES AS HAD
BEEN GIVEN TO THE FEDERAL WORKS ADMINISTRATOR AS TO DEFENSE HOUSING
CONSTRUCTED UNDER THE LANHAM ACT.  FN20  THE RENTAL POLICY UNDER THE
LANHAM ACT, AT THAT TIME, PROVIDED:  "THAT THE (FEDERAL WORKS)
ADMINISTRATOR SHALL FIX FAIR RENTALS, ON PROJECTS DEVELOPED PURSUANT TO
THIS ACT, WHICH SHALL BE WITHIN THE FINANCIAL REACH OF PERSONS ENGAGED
IN NATIONAL DEFENSE:  ...  "  SEC. 7, 54 STAT. 1127, RENUMBERED SEC.
304, 55 STAT. 363.  THIS RENTAL POLICY WAS THUS EXPRESSLY FITTED TO THE
PURPOSES OF THE DEFENSE HOUSING.  THOSE PURPOSES DID NOT CALL FOR ITS
FURTHER SUBORDINATION TO THE CONTROL OF A DISTRICT ADMINISTRATOR OF
RENT CONTROL UNDER OTHER STATUTORY STANDARDS FITTED TO PRIVATE
LANDLORDS.  THIS SPECIAL DEFENSE-HOUSING RENTAL POLICY WAS FURTHER
EXPRESSLY EMPHASIZED BY CONGRESS IN ANOTHER AMENDMENT MADE APPLICABLE
TO THE LANHAM ACT DEFENSE HOUSING JANUARY 21, 1942.  FN21  THEREFORE,
WHETHER OR NOT THESE FURTHER PROVISIONS WERE ALSO TO BE APPLICABLE TO
BELLEVUE HOUSES, WHICH HAD BEEN CONSTRUCTED UNDER AN EARLIER ACT, THEY
BECAME APPLICABLE TO THE MANY GOVERNMENT-OWNED, DEFENSE-HOUSING UNITS
CONSTRUCTED IN THE DISTRICT UNDER THE LANHAM ACT.  CONGRESS THUS
EVIDENCED ITS PURPOSE TO INSIST UPON SPECIAL STANDARDS OF RENTALS FOR
ITS DEFENSE HOUSING.  IT IS SIGNIFICANT THAT IT DID SO BY ACTS APPROVED
JUNE 28, 1941, AND JANUARY 21, 1942.  ONE WAS ENACTED BEFORE, AND THE
OTHER AFTER, THE ENACTMENT OF THE DISTRICT OF COLUMBIA EMERGENCY RENT
ACT ON DECEMBER 2, 1941.  THIS EMPHASIS WAS REPEATED ON APRIL 10, 1942,
IN A MANNER WHICH DEMONSTRATED STILL FURTHER THAT CONGRESS, IN ITS
CONSIDERATION OF THE LANHAM ACT, HAD NOT OVERLOOKED THE SUBSTANTIAL
EXTENT TO WHICH THAT ACT RELATED TO THE CONSTRUCTION OF DEFENSE HOUSING
IN THE DISTRICT OF COLUMBIA.  ON THAT DATE CONGRESS AMENDED THE LANHAM
ACT WITH SPECIAL REFERENCE TO OPERATIONS IN THE DISTRICT.  IT ADDED
TITLE IV.  THIS AUTHORIZED A $30,000,000 APPROPRIATION "TO PROVIDE
HOUSING IN OR NEAR THE DISTRICT OF COLUMBIA (INCLUDING LIVING QUARTERS
FOR SINGLE PERSONS AND FOR FAMILIES) FOR EMPLOYEES OF THE UNITED STATES
WHOSE DUTIES ARE DETERMINED BY THE NATIONAL HOUSING ADMINISTRATOR TO BE
ESSENTIAL TO NATIONAL DEFENSE AND TO REQUIRE THEM TO RESIDE IN OR NEAR
THE DISTRICT OF COLUMBIA."  56 STAT. 212, 42 U.S.C. (1946 ED.)  SEC. 
1561.  THE RENTAL CONTROL PROVISIONS AMENDED ON JANUARY 21, 1942(SEE
NOTE 21, SUPRA), ALREADY WERE APPLICABLE TO SUCH HOUSING.  THE VERY
SEC. 304 WHICH CONTAINED THOSE AMENDED RENTAL CONTROL PROVISIONS WAS
FURTHER AMENDED SO AS EXPRESSLY TO INCLUDE THE DISTRICT OF COLUMBIA IN
THE TERM "LOCAL MUNICIPALITIES" TO WHICH LAND COULD BE CONVEYED FOR
STREET OR OTHER PUBLIC USE INCIDENTAL TO A PROJECT.  SEE 54 STAT. 1127,
55 STAT. 363, 56 STAT. 212, 42 U.S.C. (1946 ED.)  SEC.  1544.  FN22 

IN THE LIGHT OF THE FOREGOING EXPRESS PROVISIONS FOR THE CONTROL OF
RENTS IN THE PUBLIC INTEREST ON GOVERNMENT-OWNED, DEFENSE-HOUSING
PROJECTS, THERE IS NO GROUND FOR IMPLICATION THAT THE DISTRICT OF
COLUMBIA EMERGENCY RENT ACT CONFLICTS WITH IT. 

III.  THE NATIONAL EMERGENCY PRICE CONTROL ACT OF 1942 EMPHASIZES THE
CONCLUSION THAT THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT DOES NOT
APPLY TO GOVERNMENT-OWNED HOUSING IN THE DISTRICT. 

ALTHOUGH THE NATIONAL EMERGENCY PRICE CONTROL ACT OF 1942, APPROVED
JANUARY 30, 1942, EXPRESSLY EMPOWERED THE NATIONAL PRICE ADMINISTRATOR,
UNDER CERTAIN LIMITATIONS, TO ESTABLISH MAXIMUM RENTALS IN SO-CALLED
DEFENSE-RENTAL AREAS,  FN23  HE NEVER DID SO IN THE DISTRICT OF
COLUMBIA.  THAT ACT, THEREFORE, DOES NOT HAVE A DIRECT APPLICATION TO
THE ISSUE IN THIS CASE.  HOWEVER, THE LANGUAGE OF THAT ACT AND ITS
POLICY TOWARD THE RENT CONTROL OF GOVERNMENT-OWNED, HOUSING
ACCOMMODATIONS, BOTH INSIDE AND OUTSIDE OF THE DISTRICT OF COLUMBIA,
HAS A BEARING UPON THE PROPER CONSTRUCTION OF THE DISTRICT OF COLUMBIA
EMERGENCY RENT ACT.  THE NATIONAL ACT IS NOT ONLY CONSISTENT WITH OUR
INTERPRETATION OF THE DISTRICT ACT BUT IT LENDS SUPPORT TO THAT
INTERPRETATION.  THE NATIONAL ACT LEFT THE CONTROL OVER RENT TO LOCAL
AUTHORITIES, EXCEPT WHERE THE NATIONAL PRICE ADMINISTRATOR FOUND IT
NECESSARY TO INTERVENE.  THE DECISION OF THE NATIONAL PRICE
ADMINISTRATOR NOT TO INTERVENE IN THE DISTRICT OF COLUMBIA WAS AN
ESPECIAL COMPLIMENT TO THE EXISTING CONTROLS, BECAUSE THE DISTRICT OF
COLUMBIA WAS A TYPICAL AREA CALLING FOR COMPETENT RENT CONTROL AND, IN
FACT, HAD BEEN DECLARED BY THE STATUTE ITSELF TO BE A "DEFENSE-RENTAL
AREA  ...  " SEC. 302(D), 56 STAT. 36, 50 U.S.C. APP. (1946 ED.)  SEC. 
942(D).  HIS SATISFACTION WITH THE CONDITIONS IN THE DISTRICT INDICATES
THAT THE LOCAL PRACTICE FOLLOWED BY THE DISTRICT ADMINISTRATOR OF RENT
CONTROL, IN NOT ATTEMPTING TO FIX THE RENTALS IN GOVERNMENT-OWNED
HOUSING, HAD PRODUCED NO CONDITIONS WHICH SEEMED TO THE NATIONAL PRICE
ADMINISTRATOR TO CALL FOR FEDERAL INTERVENTION.  A STILL MORE
SIGNIFICANT POINT IS THAT, IF HE HAD INTERVENED, UNDER THE NATIONAL
ACT, HE, AND NOT THE DISTRICT ADMINISTRATOR OF RENT CONTROL, WOULD HAVE
BEEN THE ONE VESTED WITH CONTROL OVER THE RENTAL POLICY OF THE
GOVERNMENT-OWNED, HOUSING ACCOMMODATIONS. 

IN CONTRAST TO THE OMISSION, IN THE DISTRICT OF COLUMBIA EMERGENCY
RENT ACT, OF ANY EXPRESS REFERENCE TO THE UNITED STATES AS A LANDLORD,
THE NATIONAL ACT EXPRESSLY INCLUDED THE UNITED STATES AS A "PERSON" TO
WHOM IT APPLIED.  FN24  THUS, WITHIN TWO MONTHS AFTER THE OMISSION OF
THE UNITED STATES FROM SUCH A DEFINITION IN THE DISTRICT OF COLUMBIA
EMERGENCY RENT ACT, CONGRESS DEMONSTRATED THAT, WHEN IT SOUGHT TO
INCLUDE CONTROL OF GOVERNMENT-OWNED HOUSING UNDER CONDITIONS WHERE THE
ESTABLISHED PROCEDURES AND LOCAL CONTROLS MIGHT FAIL TO MEET THE NEEDS
OF THE TIMES, IT EXPRESSLY SAID SO.  THE SAME SECTION PROVIDED THAT THE
PUNISHMENTS PRESCRIBED FOR PRIVATE VIOLATORS DID NOT APPLY TO THE
UNITED STATES. 

THE NATIONAL PRICE ADMINISTRATOR, HOWEVER, NEVER PUBLISHED ANY
REGULATIONS EVEN POTENTIALLY APPLICABLE TO THE DISTRICT OF COLUMBIA. 
ON THE OTHER HAND, HE DID PUBLISH REGULATIONS STATING HIS GENERAL
POLICY AS TO GOVERNMENT-OWNED, HOUSING ACCOMMODATIONS ELSEWHERE WHICH
MIGHT COME UNDER HIS CONTROL.  SUCH REGULATIONS STATED THAT, FOR
HOUSING CONSTRUCTED AND OWNED BY THE UNITED STATES, A STATE OR ANY
POLITICAL SUBDIVISION OF EITHER, THE MAXIMUM RENTS WERE TO BE THOSE
GENERALLY PREVAILING FOR COMPARABLE HOUSING ACCOMMODATIONS ON THE
MAXIMUM RENT DATE "AS DETERMINED BY THE OWNER OF SUCH ACCOMMODATIONS:
...  "  SIMILARLY, FOR HOUSING ACCOMMODATIONS RENTED TO ARMY OR NAVY
PERSONNEL, INCLUDING CIVILIAN EMPLOYEES OF THE WAR AND NAVY
DEPARTMENTS, FOR WHICH RENT IS FIXED BY THE NATIONAL RENT SCHEDULE OF
THE WAR OR NAVY DEPARTMENTS, THE MAXIMUM RENTS WERE TO BE THOSE
ESTABLISHED BY SUCH RENT SCHEDULE.  FN25 

LATER, WHEN CONGRESS ENACTED THE HOUSING AND RENT ACT OF 1947, 61
STAT. 193-201, 50 U.S.C. APP. (1946 ED., SUPP. I) SECS. 1881-1901, IT
EXPRESSLY EXCLUDED THE DISTRICT OF COLUMBIA FROM THE ACT AND STRUCK OUT
THE PREVIOUS EXPRESS INCLUSION OF THE UNITED STATES AS A "PERSON"
SUBJECT TO THE ACT.  FN26 

THE EFFECT OF THE NATIONAL EMERGENCY PRICE CONTROL ACT, THEREFORE, IS
TO EMPHASIZE, BOTH IN ITS FORM AND ITS PRACTICAL OPERATION, THAT
CONGRESS DID NOT SEEK BY THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT TO
PLACE GOVERNMENT-OWNED HOUSING UNDER A LOCAL RENT ADMINISTRATOR. 

IV.  THE DISTRICT ADMINISTRATOR OF RENT CONTROL HAS NOT TAKEN PART IN
THIS PROCEEDING AND THERE IS NO EVIDENCE BEFORE US THAT AT ANY TIME HE
HAS SOUGHT TO EXERCISE JURISDICTION OVER THE UNITED STATES AS A
LANDLORD OF EITHER LOW-RENT HOUSING OR DEFENSE HOUSING. 

THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT HAS BEEN IN EFFECT SINCE
1941 AND THE UNITED STATES AS LANDLORD HAS OWNED AND OPERATED SEVERAL
THOUSAND HOUSING UNITS IN THE DISTRICT.  THERE IS NOTHING IN THE RULES
AND REGULATIONS OR THE GENERAL ORDERS OF THE OFFICE OF THE
ADMINISTRATOR OF RENT CONTROL SUGGESTING THE APPLICATION OF THE ACT TO
THE UNITED STATES AS A LANDLORD OF GOVERNMENT-OWNED HOUSING.  THE
ABSENCE OF EVIDENCE OF ASSERTED CONTROL BY THE DISTRICT OFFICIAL,
COUPLED WITH THE ABSENCE OF COMPLAINT BY THE NATIONAL PRICE
ADMINISTRATOR DURING THE LIFE OF THE NATIONAL EMERGENCY PRICE CONTROL
ACT, IS THOROUGHLY CONSISTENT WITH A WIDELY ACCEPTED INTERPRETATION OF
THE LOCAL ACT IN ACCORDANCE WITH THE CONCLUSION WHICH WE HAVE FOUND TO
BE FULLY JUSTIFIED BY THE LANGUAGE OF CONGRESS. 

THE JUDGMENT ACCORDINGLY IS REVERSED AND THE CAUSE IS REMANDED TO THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT WAS APPROVED
DECEMBER 2, 1941, 55 STAT. 788, D.C. CODE (1940, SUPP. VI) SECS. 45
1601 TO 45-1611.  IT TOOK EFFECT JANUARY 1, 1942, AND WAS TO TERMINATE
DECEMBER 31, 1945.  ID. SECS. 2(1), 1(B); SEC. 45-1602(1); AND SEE SEC.
45-1601(B).  ITS LIFE, HOWEVER, WAS EXTENDED TO DECEMBER 31, 1946, 59
STAT. 592; TO DECEMBER 31, 1947, 60 STAT. 340; TO MARCH 31, 1948, 61
STAT. 713; TO APRIL 30, 1948, 62 STAT. 100; TO MARCH 31, 1949, 62 STAT.
205; TO APRIL 30, 1949, 63 STAT. 30; TO JUNE 30, 1950, 63 STAT. 48.  IT
HAS BEEN AMENDED IN A FEW OTHER PROVISIONS, NONE OF WHICH ARE MATERIAL
HERE. 

FN2  APPROVED SEPTEMBER 9, 1940, 54 STAT. 883-884.  THE MANAGEMENT
AND ADMINISTRATION OF BELLEVUE HOUSES WERE TRANSFERRED BY THE NAVY
DEPARTMENT TO THE NATIONAL HOUSING ADMINISTRATION UNDER AUTHORIZATION
OF THIS SECTION AND ALSO UNDER SEC. 7 OF THE LANHAM ACT, APPROVED
OCTOBER 14, 1940, 54 STAT. 1125, 1127, 42 U.S.C. (1946 ED.)  SEC. 
1544, AND EXECUTIVE ORDER NO. 9070, 3 C.F.R. CUM. SUPP. 1095, 50 U.S.C.
APP. (1946 ED.)  SEC.  601 NOTE, P. 5711.  THE AUTHORITY TO OPERATE AND
MANAGE BELLEVUE HOUSES LATER WAS DELEGATED, BY LEASE, TO THE NATIONAL
CAPITAL HOUSING AUTHORITY, WHICH WAS RESPONSIBLE FOR THE RENTAL OF THE
PREMISES INVOLVED IN THE INSTANT CASE AT THE TIME OF THIS PROCEEDING. 
IN MAKING THIS DELEGATION, THE UNITED STATES RELIED UPON THE SAME ACTS,
TOGETHER WITH SEC. 5 OF THE ACT OF JUNE 28, 1941, 55 STAT. 363, AND
AMENDMENTS MADE TO THE LANHAM ACT BY THE ACT OF JANUARY 21, 1942, 56
STAT. 11, ET SEQ. 

FN3  THE AMENDED COMPLAINT, THE PROCEEDINGS AND THE OPINIONS BELOW
REFER ALSO TO ALLEGATIONS, STIPULATIONS AND EVIDENCE TO THE EFFECT THAT
THE UNITED STATES HAD RENTED THE PREMISES IN QUESTION TO THE RESPONDENT
FOR $38.20 A MONTH, INCLUDING GAS HEATING AND OTHER UTILITY SERVICES,
BUT THAT IT HAD INCREASED SUCH RENTAL TO $43 A MONTH, BEGINNING
FEBRUARY 1, 1946.  THE UNITED STATES CLAIMED THAT THIS INCREASE WAS
ESSENTIAL IN ORDER FOR IT TO MEET A SUBSTANTIAL RISE IN OPERATING
EXPENSES, DUE TO THE NECESSARY SUBSTITUTION OF COMMERCIAL GAS TO BE
USED FOR SPACE HEATING PURPOSES IN PLACE OF SURPLUS SLUDGE GAS SUPPLIED
BY THE DISTRICT OF COLUMBIA FREE OR AT NOMINAL COST.  THE UNITED STATES
ALSO ALLEGED THAT THE RESPONDENT REFUSED TO EXECUTE A NEW LEASE AND
REFUSED TO PAY RENT AT THE INCREASED RATE, WITH THE RESULT THAT, ON
FEBRUARY 28, 1946, IT SERVED ITS 30-DAY NOTICE TERMINATING THE
RESPONDENT'S TENANCY.  IT FURTHER ALLEGED THAT THIS INCREASE IN RENT
HAD BEEN MADE UNDER ITS PREVIOUSLY CITED AUTHORITY TO OPERATE THE
PROJECT AND WITHOUT REFERENCE TO THE DISTRICT OF COLUMBIA EMERGENCY
RENT ACT.  THIS INCREASE IN RENT PRESENTS (UNDER SECS. 2 TO 4 OF THAT
ACT, D.C. CODE (1940, SUPP. VI) SECS. 45-1602 TO 45-1604) THE SAME
ISSUE, BASED UPON THE APPLICABILITY OF THE ACT TO THE UNITED STATES AS
A LANDLORD, AS IS PRESENTED (UNDER SEC. 5(B), D.C. CODE (1940, SUPP.
VI) SEC. 45-1605(B)) BY THE MAINTENANCE OF THIS PROCEEDING FOR
POSSESSION OF THE PREMISES IN QUESTION WITHOUT MAKING ANY OF THE
ADDITIONAL ALLEGATIONS CALLED FOR BY THAT ACT.  WE DEAL WITH THE ISSUE
AS PRESENTED UNDER SEC. 5(B) BECAUSE IT IS THERE LESS INVOLVED IN
FACTUAL CONTROVERSY THAN IT IS UNDER SECS. 2 TO 4.    FN4  "SEC.  5. 
PROHIBITIONS.   -  ... 

"(B)  NO ACTION OR PROCEEDING TO RECOVER POSSESSION OF HOUSING
ACCOMMODATIONS SHALL BE MAINTAINABLE BY ANY LANDLORD AGAINST ANY
TENANT, NOTWITHSTANDING THAT THE TENANT HAS NO LEASE OR THAT HIS LEASE
HAS EXPIRED, SO LONG AS THE TENANT CONTINUES TO PAY THE RENT TO WHICH
THE LANDLORD IS ENTITLED, UNLESS - 

"(1)  THE TENANT IS (A) VIOLATING AN OBLIGATION OF HIS TENANCY (OTHER
THAN AN OBLIGATION TO PAY RENT HIGHER THAN RENT PERMITTED UNDER THIS
ACT OR ANY REGULATION OR ORDER THEREUNDER APPLICABLE TO THE HOUSING
ACCOMMODATIONS INVOLVED OR AN OBLIGATION TO SURRENDER POSSESSION OF
SUCH ACCOMMODATIONS) OR (B) IS COMMITTING A NUISANCE OR USING THE
HOUSING ACCOMMODATIONS FOR AN IMMORAL OR ILLEGAL PURPOSE OR FOR OTHER
THAN LIVING OR DWELLING PURPOSES, OR 

"(2)  THE LANDLORD SEEKS IN GOOD FAITH TO RECOVER POSSESSION OF THE
PROPERTY FOR HIS IMMEDIATE AND PERSONAL USE AND OCCUPANCY AS A
DWELLING, OR 

"(3)  THE LANDLORD HAS IN GOOD FAITH CONTRACTED IN WRITING TO SELL
THE PROPERTY FOR IMMEDIATE AND PERSONAL USE AND OCCUPANCY AS A DWELLING
BY THE PURCHASER AND THAT THE CONTRACT OF SALE CONTAINS A
REPRESENTATION BY THE PURCHASER THAT THE PROPERTY IS BEING PURCHASED BY
HIM FOR SUCH IMMEDIATE AND PERSONAL USE AND OCCUPANCY, OR 

"(4)  THE LANDLORD SEEKS IN GOOD FAITH TO RECOVER POSSESSION FOR THE
IMMEDIATE PURPOSE OF SUBSTANTIALLY ALTERING, REMODELING, OR DEMOLISHING
THE PROPERTY AND REPLACING IT WITH NEW CONSTRUCTION, THE PLANS FOR
WHICH ALTERED, REMODELED, OR NEW CONSTRUCTION HAVING BEEN FILED WITH
AND APPROVED BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, OR 

"(5)  THE HOUSING ACCOMMODATIONS ARE NONHOUSEKEEPING, FURNISHED,
ACCOMMODATIONS LOCATED WITHIN A SINGLE DWELLING UNIT NOT USED AS A
ROOMING OR BOARDING HOUSE AS DEFINED BY THIS ACT AND THE REMAINING
PORTION OF WHICH DWELLING UNIT IS OCCUPIED BY THE LESSOR OR HIS
IMMEDIATE FAMILY, OR 

"(6)  THE LANDLORD, BEING A RECOGNIZED SCHOOL OR AN ACCREDITED
NONPROFIT UNIVERSITY, HAS A BONA FIDE NEED FOR THE PREMISES FOR
EDUCATIONAL, RESEARCH, ADMINISTRATIVE, OR DORMITORY USE."  55 STAT.
791, 56 STAT. 759, 61 STAT. 721, D.C. CODE (1940, SUPP. VI) SEC. 45
1605(B). 

FN5  WITTEK V. UNITED STATES, 54 A.2D 747.  FOR AN EARLIER PROCEEDING
IN THE SAME CASE, SEE UNITED STATES V. WITTEK, 48 A.2D 805. 

FN6  APPEAL WAS TAKEN UNDER 56 STAT. 196, D.C. CODE (1940, SUPP. VI)
SEC. 11-773.  THE QUESTION NOW BEFORE US WAS STATED AS FOLLOWS:
"WHETHER THE CONDITIONS IMPOSED BY THE DISTRICT OF COLUMBIA EMERGENCY
RENT ACT ON SUITS FOR POSSESSION APPLY WHERE SUCH A SUIT IS BROUGHT BY
THE UNITED STATES AS LANDLORD."  WITTEK V. UNITED STATES, 83 U.S. APP.
D.C. 377, 378, 171 F.2D 8, 9. 

FN7  "SECTION 1.  PURPOSES, TIME LIMIT.  - (A)  IT IS HEREBY FOUND
THAT THE NATIONAL EMERGENCY AND THE NATIONAL-DEFENSE PROGRAM (1) HAVE
AGGRAVATED THE CONGESTED SITUATION WITH REGARD TO HOUSING
ACCOMMODATIONS EXISTING AT THE SEAT OF GOVERNMENT; (2) HAVE LED OR WILL
LEAD TO PROFITEERING AND OTHER SPECULATIVE AND MANIPULATIVE PRACTICES
BY SOME OWNERS OF HOUSING ACCOMMODATIONS; (3) HAVE RENDERED OR WILL
RENDER INEFFECTIVE THE NORMAL OPERATIONS OF A FREE MARKET IN HOUSING
ACCOMMODATIONS; AND (4) ARE MAKING IT INCREASINGLY DIFFICULT FOR
PERSONS WHOSE DUTIES OR OBLIGATIONS REQUIRE THEM TO LIVE OR WORK IN THE
DISTRICT OF COLUMBIA TO OBTAIN SUCH ACCOMMODATIONS.  WHEREUPON IT IS
THE PURPOSE OF THIS ACT AND THE POLICY OF THE CONGRESS DURING THE
EXISTING EMERGENCY TO PREVENT UNDUE RENT INCREASES AND ANY OTHER
PRACTICES RELATING TO HOUSING ACCOMMODATIONS IN THE DISTRICT OF
COLUMBIA WHICH MAY TEND TO INCREASE THE COST OF LIVING OR OTHERWISE
IMPEDE THE NATIONAL-DEFENSE PROGRAM. 

"(B)  THE PROVISIONS OF THIS ACT, AND ALL REGULATIONS, ORDERS, AND
REQUIREMENTS THEREUNDER, SHALL TERMINATE ON DECEMBER 31, 1945; ...  "
55 STAT. 788, D.C. CODE (1940, SUPP. VI) SEC. 45-1601. 

IN SEVEN STEPS THE TERMINATION DATE HAS BEEN EXTENDED TO JUNE 30,
1950.  SEE NOTE 1, SUPRA. 

FN8  THE COMMITTEE REPORTS REFER BY IMPLICATION TO PRIVATE LANDLORDS,
RATHER THAN TO THE UNITED STATES - EITHER AS THE ESTABLISHED LANDLORD
OF THE WIDESPREAD, LOW-RENT HOUSING IN THE DISTRICT OR AS THE LANDLORD
OF THE FUTURE DEFENSE HOUSING THEN BEING DEVELOPED IN THE DISTRICT BY
THE UNITED STATES AS AN ADDITIONAL MEANS OF COMBATING THE HOUSING
SHORTAGE. 

"WITH A POPULATION INFLUX AT A HIGHER RATE THAN EVER BEFORE IN ITS
HISTORY, THE NATION'S CAPITAL TODAY IS FACED WITH A DEMAND FOR HOUSING
ACCOMMODATIONS WHICH THREATENS TO CREATE A SITUATION MORE SERIOUS THAN
THAT EXISTING DURING THE LAST WAR.  THE PRESENT DEMAND FOR LIVING
QUARTERS ON THE PART OF THOSE WHOM THE DEFENSE EFFORT REQUIRES TO LIVE
AND WORK IN WASHINGTON, HAS TEMPTED SOME OWNERS AND MANAGERS OF RENTAL
PROPERTIES TO DEMAND EXORBITANT RENTALS.  IT IS TRUE, AND GRATIFYING TO
NOTE, THAT A LARGE MAJORITY OF OWNERS AND MANAGERS HAVE REFRAINED FROM
TAKING ADVANTAGE OF THE RENTAL SITUATION CREATED BY THE NATIONAL
EMERGENCY AS IT AFFECTS THE NATION'S CAPITAL.  THIS BILL IS DESIGNED TO
PROTECT THIS GROUP AS WELL AS PRESENT AND FUTURE TENANTS IN THE
DISTRICT OF COLUMBIA FROM THE RENT-GOUGING PRACTICES OF A MINORITY OF
LANDLORDS. 

     .         .         .  .         . 

"THE MOST APPROPRIATE REGULATION OF RENTAL PROPERTIES TO MEET THE
PRESENT EMERGENCY SITUATION IS REGULATION DESIGNED TO STABILIZE THE
RENT LEVEL AT A LEVEL FIXED (SO FAR AS PRACTICABLE) BY FREE
COMPETITION; COMPETITION BEFORE IT WAS SERIOUSLY AFFECTED BY AN ACUTE
HOUSING SHORTAGE AND BY RESTRICTIONS ON NEW CONSTRUCTION CAUSED BY
SHORTAGES IN CERTAIN BUILDING MATERIALS REQUIRED BY THE MILITARY NEEDS
OF THE NATION. 

 .         .         .         .         . 

"IT IS PARTICULARLY APPROPRIATE THAT THE CONGRESS IMMEDIATELY ENACT
LEGISLATION OF THIS TYPE FOR THE NATION'S CAPITAL - LEGISLATION THAT
MAY SERVE AS A MODEL FOR ENACTMENTS BY STATES WHICH MAY DESIRE CONTROL
FOR THOSE AREAS WITHIN THEIR BORDERS SUFFERING FROM SIMILAR RENTAL
HOUSING DISLOCATIONS CAUSED BY THE NATIONAL EMERGENCY AND THE NATIONAL
DEFENSE PROGRAM."  H.R. REP. NO. 1317, 77TH CONG., 1ST SESS. 2,
6(1941). 

AND SEE S. REP. NO. 827, 77TH CONG., 1ST SESS. 3(1941).  SEE ALSO,
DISCUSSION OF THE BILL ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES BY
REPRESENTATIVE RANDOLPH OF WEST VIRGINIA, CHAIRMAN OF THE COMMITTEE ON
THE DISTRICT OF COLUMBIA, 87 CONG. REC., PT. 8, 8447-8454(1941). 

FN9 THE NATURE OF THE NEED WAS REFLECTED IN THE ORIGINAL STATEMENT OF
THE PURPOSE OF THE ACT. 

"  ...  TO ENABLE THE PRESIDENT, IN THE INTEREST OF PUBLIC HEALTH,
COMFORT, MORALS, SAFETY, AND WELFARE, TO PROVIDE FOR THE DISCONTINUANCE
OF THE USE AS DWELLINGS OF BUILDINGS SITUATED IN ALLEYS AND TO
ELIMINATE THE HIDDEN COMMUNITIES IN INHABITED ALLEYS OF THE DISTRICT OF
COLUMBIA, AND TO CARRY OUT THE POLICY DECLARED IN THE ACT APPROVED MAY
16, 1918, AS AMENDED, OF CARING FOR THE ALLEY POPULATION OF THE
DISTRICT OF COLUMBIA, THE PRESIDENT IS HEREBY AUTHORIZED AND EMPOWERED,
...  - 

"(A)  TO PURCHASE, OR ACQUIRE BY CONDEMNATION OR GIFT, ANY LAND,
BUILDINGS, OR STRUCTURES, OR ANY INTEREST THEREIN, SITUATED IN OR
ADJACENT TO ANY INHABITED ALLEY IN THE DISTRICT OF COLUMBIA, ...  ; 

"(B)  ...  TO DEMOLISH, MOVE, OR ALTER ANY BUILDINGS OR STRUCTURES
SITUATED THEREON AND ERECT SUCH BUILDINGS OR STRUCTURES THEREON AS
DEEMED ADVISABLE:  ...  ; 

"(C)  TO LEASE, RENT, MAINTAIN, EQUIP, MANAGE, EXCHANGE, SELL, OR
CONVEY ANY SUCH LANDS, BUILDINGS, OR STRUCTURES UPON SUCH TERMS AND
CONDITIONS AS HE MAY DETERMINE:  ..."  48 STAT. 930-931. 

SEE ALSO, 52 STAT. 1186, D.C. CODE (1940) SEC. 5-103. 

FN10  EXECUTIVE ORDER NO. 6868, OCTOBER 9, 1934(PUBLISHED IN REPORT
OF THE NATIONAL CAPITAL HOUSING AUTHORITY FOR THE TEN-YEAR PERIOD 1934
1944, P. 3), AND SEE EXECUTIVE ORDER NO. 8033, 3 C.F.R. CUM. SUPP.
443.  THIS WAS PURSUANT TO THE AUTHORIZATION CONTAINED IN 48 STAT. 931,
D.C. CODE (1940) SEC. 5-104. 

FN11  EXECUTIVE ORDER NO. 7784-A, 3 FED. REG. 51(1938). 

FN12  EXECUTIVE ORDER NO. 9344, 3 C.F.R. CUM. SUPP. 1279. 

FN13  FOR THIS AND THE OTHER FACTUAL MATERIAL RELATING TO THIS
AUTHORITY, SEE REPORT OF THE NATIONAL CAPITAL HOUSING AUTHORITY FOR THE
TEN-YEAR PERIOD 1934-1944, SUBMITTED BY IT TO THE PRESIDENT DECEMBER
28, 1944, AND BY HIM TO CONGRESS MARCH 1, 1945, 91 CONG. REC., PT. 2,
1597(1945).  SEE ALSO, THE ANNUAL REPORTS OF THIS AUTHORITY TO THE
PRESIDENT, ALL REQUIRED BY SEC. 5(A) AND (B) OF THE DISTRICT OF
COLUMBIA ALLEY DWELLING ACT, 48 STAT. 932, D.C. CODE (1940) SEC. 5
107(A) AND (B). 

FN14  "SEC.  2.  WHEN USED IN THIS ACT - 

"(1)  THE TERM 'LOW-RENT HOUSING' MEANS DECENT, SAFE, AND SANITARY
DWELLINGS WITHIN THE FINANCIAL REACH OF FAMILIES OF LOW INCOME, AND
DEVELOPED AND ADMINISTERED TO PROMOTE SERVICEABILITY, EFFICIENCY,
ECONOMY, AND STABILITY, AND EMBRACES ALL NECESSARY APPURTENANCES
THERETO.  THE DWELLINGS IN LOW-RENT HOUSING AS DEFINED IN THIS ACT
SHALL BE AVAILABLE SOLELY FOR FAMILIES WHOSE NET INCOME AT THE TIME OF
ADMISSION DOES NOT EXCEED FIVE TIMES THE RENTAL (INCLUDING THE VALUE OR
COST TO THEM OF HEAT, LIGHT, WATER, AND COOKING FUEL) OF THE DWELLINGS
TO BE FURNISHED SUCH FAMILIES, EXCEPT THAT IN THE CASE OF FAMILIES WITH
THREE OR MORE MINOR DEPENDENTS, SUCH RATIO SHALL NOT EXCEED SIX TO
ONE."  50 STAT. 888, 42 U.S.C. (1940 ED.)  SEC. 1402(1). 

FN15  THIS CONTRASTS WITH THE LANGUAGE USED BY CONGRESS ABOUT TWO
MONTHS LATER IN THE RENT CONTROL PROVISIONS OF THE NATIONAL EMERGENCY
PRICE CONTROL ACT OF 1942, 56 STAT. 24-26, 36-37.  CONGRESS THERE
EXPRESSLY INCLUDED THE UNITED STATES IN THE DEFINITION OF "PERSON." 
SEE P. 365, INFRA. 

THE COURT BELOW RELIES PARTICULARLY UPON THE FOLLOWING DEFINITIONS OF
"LANDLORD" AND "PERSON" IN THE DISTRICT OF COLUMBIA EMERGENCY RENT ACT
AS BEING SUFFICIENTLY BROAD TO INCLUDE THE UNITED STATES WHEN READ IN
THE LIGHT OF THE PURPOSES OF THE ACT: 

"SEC. 11.  DEFINITIONS.   - AS USED IN THIS ACT - 

.         .         .         .         . 

"(G)  THE TERM 'LANDLORD' INCLUDES AN OWNER, LESSOR, SUBLESSOR, OR
OTHER PERSON ENTITLED TO RECEIVE RENT FOR THE USE OR OCCUPANCY OF ANY
HOUSING ACCOMMODATIONS. 

"(H)  THE TERM 'PERSON' INCLUDES ONE OR MORE INDIVIDUALS, FIRMS,
PARTNERSHIPS, CORPORATIONS, OR ASSOCIATIONS AND ANY AGENT, TRUSTEE,
RECEIVER, ASSIGNEE, OR OTHER REPRESENTATIVE THEREOF."  55 STAT. 794
795, D.C. CODE (1940, SUPP. VI) SEC. 45-1611(G) AND (H). 

FN16  "  ...  THERE IS AN OLD AND WELL-KNOWN RULE THAT STATUTES WHICH
IN GENERAL TERMS DIVEST PRE-EXISTING RIGHTS OR PRIVILEGES WILL NOT BE
APPLIED TO THE SOVEREIGN WITHOUT EXPRESS WORDS TO THAT EFFECT.  IT HAS
BEEN STATED, IN CASES IN WHICH THERE WERE EXTRANEOUS AND AFFIRMATIVE
REASONS FOR BELIEVING THAT THE SOVEREIGN SHOULD ALSO BE DEEMED SUBJECT
TO A RESTRICTIVE STATUTE, THAT THIS RULE WAS A RULE OF CONSTRUCTION
ONLY.  THOUGH THAT MAY BE TRUE, THE RULE HAS BEEN INVOKED SUCCESSFULLY
IN CASES SO CLOSELY SIMILAR TO THE PRESENT ONE, AND THE STATEMENT OF
THE RULE IN THOSE CASES HAS BEEN SO EXPLICIT, THAT WE ARE INCLINED TO
GIVE IT MUCH WEIGHT HERE."  UNITED STATES V. UNITED MINE WORKERS, 330
U.S. 258, 272-273. 

SEE ALSO, UNITED STATES V. WYOMING, 331 U.S. 440, 449; UNITED STATES
V. STEVENSON, 215 U.S. 190, 197; UNITED STATES V. AMERICAN BELL
TELEPHONE CO., 159 U.S. 548, 554-555; UNITED STATES V. HERRON, 20
WALL.  251, 263. 

"THE MOST GENERAL WORDS THAT CAN BE DEVISED (FOR EXAMPLE, ANY PERSON
OR PERSONS, BODIES POLITIC OR CORPORATE) AFFECT NOT HIM (THE KING OF
ENGLAND) IN THE LEAST, IF THEY MAY TEND TO RESTRAIN OR DIMINISH ANY OF
HIS RIGHTS AND INTERESTS.  ...  THE RULE THUS SETTLED RESPECTING THE
BRITISH CROWN IS EQUALLY APPLICABLE TO THIS GOVERNMENT, AND IT HAS BEEN
APPLIED FREQUENTLY IN THE DIFFERENT STATES, AND PRACTICALLY IN THE
FEDERAL COURTS.  IT MAY BE CONSIDERED AS SETTLED THAT SO MUCH OF THE
ROYAL PREROGATIVES AS BELONGED TO THE KING IN HIS CAPACITY OF PARENS
PATRIOE, OR UNIVERSAL TRUSTEE, ENTERS AS MUCH INTO OUR POLITICAL STATE
AS IT DOES INTO THE PRINCIPLES OF THE BRITISH CONSTITUTION."  DOLLAR
SAVINGS BANK V. UNITED STATES, 19 WALL.  227, 239. 

FN17  SEE NOTE 8, SUPRA. 

FN18  SUPPLEMENTED BY THE URGENT DEFICIENCY APPROPRIATION ACT, 1941,
APPROVED MARCH 1, 1941, 55 STAT. 14, AND AMENDED BY THE ACTS OF APRIL
29, 1941, 55 STAT. 147, AND JUNE 28, 1941, 55 STAT. 361, ET SEQ. 

FN19  "  ...  IN CARRYING OUT THE PURPOSES OF THIS SECTION THE
SECRETARY OF WAR AND THE SECRETARY OF THE NAVY MAY UTILIZE SUCH OTHER
AGENCIES OF THE UNITED STATES AS THEY MAY DETERMINE UPON:  PROVIDED
FURTHER, THAT THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, AT
THEIR DISCRETION, ARE HEREBY AUTHORIZED TO RENT SUCH HOUSING UNITS,
UPON COMPLETION, TO ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS WITH
FAMILIES, TO FIELD EMPLOYEES OF THE MILITARY AND NAVAL ESTABLISHMENTS
WITH FAMILIES, AND TO WORKERS WITH FAMILIES WHO ARE ENGAGED, OR TO BE
ENGAGED, IN INDUSTRIES ESSENTIAL TO THE MILITARY AND NAVAL NATIONAL
DEFENSE PROGRAMS, INCLUDING WORK ON SHIPS UNDER THE CONTROL OF THE
MARITIME COMMISSION.  ...  "  SEC. 201, SECOND SUPPLEMENTAL NATIONAL
DEFENSE APPROPRIATION ACT, 1941, APPROVED SEPTEMBER 9, 1940, 54 STAT.
883-884.  FOR COMPARABLE CLASSIFICATION OF ELIGIBLE TENANTS UNDER THE
LANHAM ACT, SEE SEC. 2, 54 STAT. 1126, AS AMENDED, 56 STAT. 11-12, 42
U.S.C. (1946 ED.)  SEC.  1522.    FN20  "SEC.  5.  THE DEPARTMENTS,
AGENCIES, OR INSTRUMENTALITIES ADMINISTERING PROPERTY ACQUIRED OR
CONSTRUCTED UNDER SECTION 201 OF THE SECOND SUPPLEMENTAL NATIONAL
DEFENSE APPROPRIATION ACT, 1941, SHALL HAVE THE SAME POWERS AND DUTIES
WITH RESPECT TO SUCH PROPERTY AND WITH RESPECT TO THE MANAGEMENT,
MAINTENANCE, OPERATION, AND ADMINISTRATION THEREOF AS ARE GRANTED TO
THE FEDERAL WORKS ADMINISTRATOR WITH RESPECT TO PROPERTY ACQUIRED OR
CONSTRUCTED UNDER TITLE I OF SUCH ACT OF OCTOBER 14, 1940, AND WITH
RESPECT TO THE MANAGEMENT, MAINTENANCE, OPERATION, AND ADMINISTRATION
OF SUCH PROPERTY SO ACQUIRED OR CONSTRUCTED UNDER SUCH TITLE."  55
STAT. 363. 

TITLE I OF THE LANHAM ACT, APPROVED OCTOBER 14, 1940, CONSISTED OF
SECS. 1-3, AND IN THE ACT OF JUNE 28, 1941, IT WAS GIVEN THE TITLE
"DEFENSE HOUSING."  55 STAT. 361. 

FN21  "SEC.  6.  THE SECOND PROVISO OF SECTION 304 OF SUCH (LANHAM)
ACT, AS AMENDED, IS AMENDED TO READ AS FOLLOWS:  'PROVIDED FURTHER,
THAT THE (FEDERAL WORKS) ADMINISTRATOR SHALL FIX FAIR RENTALS, ON
PROJECTS DEVELOPED PURSUANT TO THIS (LANHAM) ACT, WHICH SHALL BE BASED
ON THE VALUE THEREOF AS DETERMINED BY HIM, WITH POWER DURING THE
EMERGENCY, IN EXCEPTIONAL CASES, TO ADJUST THE RENT TO THE INCOME OF
THE PERSONS TO BE HOUSED, AND THAT RENTALS TO BE CHARGED FOR ARMY AND
NAVY PERSONNEL SHALL BE FIXED BY THE WAR AND NAVY DEPARTMENTS:'."  56
STAT. 12, 42 U.S.C. (1946 ED.)  SEC. 1544. 

FN22  AS EVIDENCING A PURPOSE THAT GOVERNMENT-OWNED, DEFENSE HOUSING
CONSTRUCTED UNDER THE LANHAM ACT LIKEWISE REMAIN UNDER THE GENERAL
CIVIL AND CRIMINAL JURISDICTION OF THE RESPECTIVE STATES AND OF THE
DISTRICT OF COLUMBIA, WHEREVER SUCH HOUSING MIGHT BE LOCATED, SEC. 307
OF THE LANHAM ACT WAS AMENDED BY THE ACT OF APRIL 10, 1942, TO INCLUDE
EXPRESSLY THE DISTRICT OF COLUMBIA.  SEE 54 STAT. 1127, 55 STAT. 363,
56 STAT. 212, 42 U.S.C. (1946 ED.)  SEC.  1547. 

FN23  SECS. 2(B) AND 302(D), 56 STAT. 25-26, AND 36, 58 STAT. 633
634, 59 STAT. 306-307, 50 U.S.C. APP. (1946 ED.)  SEC.  902(B). 

FN24  IT WAS MADE UNLAWFUL FOR "ANY PERSON" TO VIOLATE THE ACT OR A
REGULATION ISSUED PURSUANT TO THE ACT, SEC. 4, 56 STAT. 28, 50 U.S.C.
APP. (1946 ED.)  SEC.  904, AND THEN "PERSON" WAS DEFINED AS FOLLOWS: 

"SEC. 302.  AS USED IN THIS ACT - 

     .         .         .         .         . 

"(H)  THE TERM 'PERSON' INCLUDES AN INDIVIDUAL, CORPORATION,
PARTNERSHIP, ASSOCIATION, OR ANY OTHER ORGANIZED GROUP OF PERSONS, OR
LEGAL SUCCESSOR OR REPRESENTATIVE OF ANY OF THE FOREGOING, AND INCLUDES
THE UNITED STATES OR ANY AGENCY THEREOF, OR ANY OTHER GOVERNMENT, OR
ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY AGENCY OF ANY OF THE
FOREGOING:  PROVIDED, THAT NO PUNISHMENT PROVIDED BY THIS ACT SHALL
APPLY TO THE UNITED STATES, OR TO ANY SUCH GOVERNMENT, POLITICAL
SUBDIVISION, OR AGENCY."  56 STAT. 36-37, 50 U.S.C. APP. (1946 ED.) 
SEC.  942(H). 

THE ACT ALSO PROVIDED: 

"SECTION 1.  ... 

"(C)  THE PROVISIONS OF THIS ACT SHALL BE APPLICABLE TO THE UNITED
STATES, ITS TERRITORIES AND POSSESSIONS, AND THE DISTRICT OF
COLUMBIA."  56 STAT. 23-24, 50 U.S.C. APP. (1946 ED.)  SEC. 901(C). 

FN25  "SEC.  4.  MAXIMUM RENTS.  MAXIMUM RENTS  ...  SHALL BE: 

     .         .         .         .         . 

"(G)  HOUSING OWNED AND CONSTRUCTED BY THE GOVERNMENT.  FOR HOUSING
ACCOMMODATIONS CONSTRUCTED BY THE UNITED STATES OR ANY AGENCY THEREOF,
OR BY A STATE OF THE UNITED STATES OR ANY OF ITS POLITICAL
SUBDIVISIONS, OR ANY AGENCY OF THE STATE OR ANY OF ITS POLITICAL
SUBDIVISIONS, AND OWNED BY ANY OF THE FOREGOING, THE RENT GENERALLY
PREVAILING IN THE DEFENSE-RENTAL AREA FOR COMPARABLE HOUSING
ACCOMMODATIONS ON THE MAXIMUM RENT DATE, AS DETERMINED BY THE OWNER OF
SUCH ACCOMMODATIONS:  PROVIDED, HOWEVER, THAT ANY CORPORATION FORMED
UNDER THE LAWS OF A STATE SHALL NOT BE CONSIDERED AN AGENCY OF THE
UNITED STATES WITHIN THE MEANING OF THIS PARAGRAPH.  THE ADMINISTRATOR
MAY ORDER A DECREASE IN THE MAXIMUM RENT AS PROVIDED IN SECTION 5(C). 

"(H)  HOUSING SUBJECT TO RENT SCHEDULE OF WAR OR NAVY DEPARTMENT. 
FOR HOUSING ACCOMMODATIONS RENTED TO EITHER ARMY OR NAVY PERSONNEL,
INCLUDING CIVILIAN EMPLOYEES OF THE WAR AND NAVY DEPARTMENTS, FOR WHICH
THE RENT IS FIXED BY THE NATIONAL RENT SCHEDULE OF THE WAR OR NAVY
DEPARTMENT, THE RENTS ESTABLISHED BY SUCH RENT SCHEDULE."  10 FED. REG.
13529-13530. 

FOR THE EXCEPTION OF HOUSING ACCOMMODATIONS RENTED TO ARMY OR NAVY
PERSONNEL, INCLUDING CIVILIAN EMPLOYEES OF THE WAR AND NAVY
DEPARTMENTS, FROM PROVISIONS RESTRICTING REMOVAL OF TENANTS, SEE SEC.
6(C)(2), 10 FED. REG. 13534. 

FN26  THE HOUSING AND RENT ACT OF 1947, 61 STAT. 193, 197, SUPERSEDED
THE NATIONAL EMERGENCY PRICE CONTROL ACT OF 1942.  IT PROVIDED: 

"SEC. 202.  AS USED IN THIS TITLE (MAXIMUM RENTS) - 

"(A)  THE TERM 'PERSON' INCLUDES AN INDIVIDUAL, CORPORATION,
PARTNERSHIP, ASSOCIATION, OR ANY OTHER ORGANIZED GROUP OF PERSONS, OR A
LEGAL SUCCESSOR OR REPRESENTATIVE OF ANY OF THE FOREGOING."  61 STAT.
196, 50 U.S.C. APP. (1946 ED., SUPP. I) SEC. 1892(A). 

"SEC. 209.  ... 

"(B)  NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT, THE UNITED
STATES OR ANY STATE OR LOCAL PUBLIC AGENCY MAY MAINTAIN AN ACTION OR
PROCEEDING TO RECOVER POSSESSION OF ANY HOUSING ACCOMMODATIONS OPERATED
BY IT WHERE SUCH ACTION OR PROCEEDING IS AUTHORIZED BY THE STATUTE OR
REGULATIONS UNDER WHICH SUCH ACCOMMODATIONS ARE ADMINISTERED:   ...  "
61 STAT. 200-201, 50 U.S.C. APP. (1946 ED., SUPP. I) SEC. 1899(B). 

"SEC. 211.  THE PROVISIONS OF THIS TITLE (MAXIMUM RENTS) SHALL BE
APPLICABLE TO THE SEVERAL STATES AND TO THE TERRITORIES AND POSSESSIONS
OF THE UNITED STATES BUT SHALL NOT BE APPLICABLE TO THE DISTRICT OF
COLUMBIA."  61 STAT. 201, 50 U.S.C. APP. (1946 ED., SUPP. I) SEC.
1901. 
..END :


















COMMISSIONER V. WODEHOUSE, 337 U.S. 369 


NO. 84.  ARGUED DECEMBER 10, 13, 1948.  - DECIDED JUNE 13, 1949.  - 166
F.2D 986, REVERSED. 


RESPONDENT, A NONRESIDENT ALIEN NOT ENGAGED IN TRADE OR BUSINESS
WITHIN THE UNITED STATES AND NOT HAVING AN OFFICE OR PLACE OF BUSINESS
THEREIN, RECEIVED IN 1938 AND 1941 FROM MAGAZINE AND BOOK PUBLISHERS IN
THE UNITED STATES LUMP SUM PAYMENTS, IN ADVANCE AND IN FULL, FOR THE
AMERICAN SERIAL AND BOOK RIGHTS TO CERTAIN LITERARY WORKS OF WHICH HE
WAS THE AUTHOR AND WHICH WERE READY TO BE COPYRIGHTED.  HELD: 

1.  UNDER THE REVENUE ACT OF 1938 AND THE INTERNAL REVENUE CODE AS
AMENDED, THE SUMS SO RECEIVED WERE INCLUDIBLE IN "GROSS INCOME FROM
SOURCES WITHIN THE UNITED STATES," AS "RENTALS OR ROYALTIES FOR THE USE
OF OR FOR THE PRIVILEGE OF USING IN THE UNITED STATES  ...  COPYRIGHTS
...  AND OTHER LIKE PROPERTY," AND WERE THUS TAXABLE TO RESPONDENT. 
PP. 371-374, 377-392. 

(A)  HAD THE SUMS HERE INVOLVED BEEN RECEIVED IN THE TAXABLE YEAR
1934, THEY UNQUESTIONABLY WOULD HAVE BEEN TAXABLE TO RESPONDENT UNDER
THE REVENUE ACT OF 1934; AND THEY WERE NOT RELIEVED FROM TAXATION BY
THE AMENDMENTS WHICH WERE MADE BY THE REVENUE ACT OF 1936 AND WHICH
WERE STILL IN EFFECT IN 1938 AND 1941.  PP. 380-392. 

(B)  THE REVENUE ACT OF 1936 PRESERVED THE TAXABILITY OF THE SEVERAL
KINDS OF INCOME OF NONRESIDENT ALIEN INDIVIDUALS WHICH HAD BEEN THE
SUBJECT OF WITHHOLDING AT THEIR RESPECTIVE SOURCES, INCLUDING RECEIPTS
IN THE NATURE OF ROYALTIES FOR THE USE OF COPYRIGHTS IN THE UNITED
STATES.  PP. 386-392. 

(C)  TO HAVE EXEMPTED NONRESIDENT ALIENS FROM THESE READILY
COLLECTIBLE TAXES DERIVED FROM SOURCES WITHIN THE UNITED STATES WOULD
HAVE DISCRIMINATED IN THEIR FAVOR AGAINST RESIDENT CITIZENS OF THE
UNITED STATES WHO WOULD BE REQUIRED TO PAY THEIR REGULAR INCOME TAX ON
SUCH INCOME, IF TREATED AS ROYALTIES WITHIN THE MEANING OF THE GROSS
INCOME PROVISIONS, OR AT LEAST TO PAY A TAX UPON THEM AS CAPITAL GAINS,
IF TREATED AS INCOME FROM SALES OF CAPITAL WITHIN THE MEANING OF THE
CAPITAL GAINS PROVISIONS.  NO SUCH PURPOSE TO DISCRIMINATE CAN BE
IMPLIED.  P. 391. 

(D)  NONE OF THE PROVISIONS OF THE 1936 ACT HERE INVOLVED WERE
CHANGED BY THE 1938 ACT OR THE INTERNAL REVENUE CODE, EXCEPT AS TO THE
RATES OF TAX; AND THE PRINCIPAL CHANGES EVEN IN THE RATES WERE TO
PROVIDE HIGHER TAXES IN THE HIGHER BRACKETS, RATHER THAN TO REDUCE THE
TAXES ON NONRESIDENT ALIENS.  P. 392. 

2.  THE FACT THAT THE AMOUNTS RECEIVED FOR THE USE OF OR FOR THE
PRIVILEGE OF USING THE COPYRIGHTS WERE LUMP SUM PAYMENTS, IN ADVANCE
AND IN FULL, DID NOT EXEMPT SUCH INCOME FROM TAXATION.  PP. 393-395. 

(A)  ONCE IT HAS BEEN DETERMINED THAT THE RECEIPTS OF THE RESPONDENT
WOULD HAVE BEEN REQUIRED TO BE INCLUDED IN HIS GROSS INCOME FOR FEDERAL
INCOME TAX PURPOSES IF THEY HAD BEEN RECEIVED IN ANNUAL PAYMENTS, OR
FROM TIME TO TIME, DURING THE LIFE OF THE RESPECTIVE COPYRIGHTS, IT IS
CLEAR THAT THE RECEIPT OF THOSE SAME SUMS BY HIM IN SINGLE LUMP SUMS AS
PAYMENTS IN FULL, IN ADVANCE, FOR THE SAME RIGHTS TO BE ENJOYED
THROUGHOUT THE ENTIRE LIFE OF THE RESPECTIVE COPYRIGHTS CANNOT, SOLELY
BY REASON OF THE CONSOLIDATION OF THE PAYMENT INTO ONE SUM, RENDER IT
TAX EXEMPT.  P. 393. 

(B)  THE WORDS "ANNUAL" AND "PERIODICAL" IN SECS. 211(A) AND 143(B)
OF THE REVENUE ACT OF 1938 AND OF THE INTERNAL REVENUE CODE, WHEN TAKEN
IN THEIR CONTEXT, AND IN THE LIGHT OF THE LEGISLATIVE HISTORY OF THE
ACT AND CODE, AND THE INTERPRETATION OF THEM BY THE TREASURY DEPARTMENT
AND THE LOWER COURTS, DO NOT REQUIRE A DIFFERENT RESULT FROM THAT HERE
REACHED.  PP. 393-394. 

COMMISSIONER OF INTERNAL REVENUE V. WODEHOUSE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

THE COMMISSIONER'S DETERMINATION OF DEFICIENCIES IN A TAXPAYER'S
INCOME TAX FOR 1938 AND 1941 WAS SUSTAINED BY THE TAX COURT.  8 T.C.
637.  THE COURT OF APPEALS REVERSED.  166 F.2D 986.  THIS COURT GRANTED
CERTIORARI.  335 U.S. 807.  REVERSED AND REMANDED, P. 395. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER CERTAIN SUMS RECEIVED IN 1938 AND
1941, BY THE RESPONDENT, AS A NONRESIDENT ALIEN AUTHOR NOT ENGAGED IN
TRADE OR BUSINESS WITHIN THE UNITED STATES AND NOT HAVING AN OFFICE OR
PLACE OF BUSINESS THEREIN, WERE REQUIRED BY THE REVENUE ACTS OF THE
UNITED STATES TO BE INCLUDED IN HIS GROSS INCOME FOR FEDERAL TAX
PURPOSES.  EACH OF THESE SUMS HAD BEEN PAID TO HIM IN ADVANCE AND
RESPECTIVELY FOR AN EXCLUSIVE SERIAL OR BOOK RIGHT THROUGHOUT THE
UNITED STATES IN RELATION TO A SPECIFIED ORIGINAL STORY WRITTEN BY HIM
AND READY TO BE COPYRIGHTED.  THE ANSWER TURNS UPON THE MEANING OF
"GROSS INCOME FROM SOURCES WITHIN THE UNITED STATES" AS THAT TERM WAS
USED, LIMITED AND DEFINED IN SECS. 212(A), 211 AND 119 OF THE REVENUE
ACT OF 1938, AND THE INTERNAL REVENUE CODE, AS AMENDED IN 1940 AND
1941.  FN1  FOR THE REASONS HEREINAFTER STATED, WE HOLD THAT THESE SUMS
EACH CAME WITHIN THOSE KINDS OF GROSS INCOME FROM SOURCES WITHIN THE
UNITED STATES THAT WERE REFERRED TO IN THOSE ACTS AS "RENTALS OR
ROYALTIES FOR THE USE OF OR FOR THE PRIVILEGE OF USING IN THE UNITED
STATES  ...  COPYRIGHTS,  ...  AND OTHER LIKE PROPERTY,"  FN2  AND
THAT, ACCORDINGLY, EACH OF THESE SUMS WAS TAXABLE UNDER ONE OR THE
OTHER OF THOSE ACTS. 

THE RESPONDENT, PELHAM G. WODEHOUSE, AT THE TIMES MATERIAL TO THIS
CASE, WAS A BRITISH SUBJECT RESIDING IN FRANCE.  HE WAS A NONRESIDENT
ALIEN OF THE UNITED STATES NOT ENGAGED IN TRADE OR BUSINESS WITHIN THE
UNITED STATES AND NOT HAVING AN OFFICE OR PLACE OF BUSINESS THEREIN
DURING EITHER THE TAXABLE YEAR 1938 OR 1941.  HE WAS A WRITER OF
SERIALS, PLAYS, SHORT STORIES AND OTHER LITERARY WORKS PUBLISHED IN THE
UNITED STATES IN THE SATURDAY EVENING POST, COSMOPOLITAN MAGAZINE AND
OTHER PERIODICALS. 

FEBRUARY 22, 1938, THE CURTIS PUBLISHING COMPANY (HERE CALLED CURTIS)
ACCEPTED FOR PUBLICATION IN THE SATURDAY EVENING POST THE RESPONDENT'S
UNPUBLISHED NOVEL "THE SILVER COW."  THE STORY HAD BEEN SUBMITTED TO
CURTIS BY THE RESPONDENT'S LITERARY AGENT, THE REYNOLDS AGENCY, AND, ON
THAT DATE, CURTIS PAID THE AGENCY $40,000 UNDER AN AGREEMENT RESERVING
TO CURTIS THE AMERICAN SERIAL RIGHTS IN THE STORY, INCLUDING IN SUCH
RIGHTS THOSE IN THE UNITED STATES, CANADA AND SOUTH AMERICA.  THE
MEMORANDUM QUOTED IN APPENDIX B, INFRA, P. 398, CONSTITUTED THE
AGREEMENT.  ALSO IN 1938, THE RESPONDENT RECEIVED $5,000 FROM
DOUBLEDAY, DORAN & COMPANY FOR THE BOOK RIGHTS IN THIS STORY.  THE
STORY WAS PUBLISHED SERIALLY IN THE SATURDAY EVENING POST, JULY 9 TO
SEPTEMBER 3, 1939. 

PURSUANT TO A LIKE AGREEMENT, THE RESPONDENT RECEIVED $40,000 FROM
CURTIS, DECEMBER 13, 1938, FOR SERIAL RIGHTS IN AND TO HIS STORY "UNCLE
FRED IN THE SPRINGTIME."  IT WAS PUBLISHED SERIALLY IN THE SATURDAY
EVENING POST, APRIL 22 TO MAY 27, 1939. 

JULY 23, 1941, HEARST'S INTERNATIONAL COSMOPOLITAN MAGAZINE, THROUGH
THE RESPONDENT'S SAME AGENT, PAID THE RESPONDENT $2,000 FOR "ALL
AMERICAN AND CANADIAN SERIAL RIGHTS (WHICH INCLUDE ALL AMERICAN AND
CANADIAN MAGAZINE, DIGEST, PERIODICAL AND NEWSPAPER PUBLISHING RIGHTS)"
TO THE RESPONDENT'S ARTICLE ENTITLED "MY YEARS BEHIND BARBED WIRE." 
THE AGREEMENT APPEARS IN APPENDIX C, INFRA, P. 400.  APPARENTLY THIS
STORY WAS PUBLISHED SHORTLY THEREAFTER. 

AUGUST 12, 1941, CURTIS, THROUGH THE SAME AGENT, PAID THE RESPONDENT
$40,000 FOR THE "NORTH AMERICAN (INCLUDING CANADIAN) SERIAL RIGHTS" TO
RESPONDENT'S NOVEL ENTITLED "MONEY IN THE BANK."  THE AGREEMENT WAS IN
THE FORM USED BY CURTIS IN 1938.  FN3  THE EVIDENCE DOES NOT STATE THAT
THIS STORY WAS PUBLISHED BUT IT SHOWS THAT CURTIS, PURSUANT TO ITS
AGREEMENTS, TOOK OUT A UNITED STATES COPYRIGHT ON EACH OF THE
RESPECTIVE STORIES NAMED IN THE FOREGOING AGREEMENTS.  AFTER EACH
STORY'S SERIAL PUBLICATION, CURTIS REASSIGNED TO THE RESPONDENT, ON THE
LATTER'S DEMAND, ALL RIGHTS IN AND TO THE STORY EXCEPTING THOSE RIGHTS
WHICH THE RESPONDENT EXPRESSLY HAD AGREED THAT CURTIS WAS TO RETAIN. 
THE RESPECTIVE SUMS WERE THUS PAID TO THE RESPONDENT, IN ADVANCE AND IN
FULL, FOR THE SERIAL OR BOOK RIGHTS WHICH HE HAD MADE AVAILABLE.  FOR
UNITED STATES INCOME TAX PURPOSES, THE RESPONDENT'S LITERARY AGENT, OR
SOME OTHER WITHHOLDING AGENT, WITHHELD FROM THE RESPONDENT, OR FROM HIS
WIFE AS HIS ASSIGNEE, A PART OF EACH PAYMENT. 

IN 1944 THE COMMISSIONER OF INTERNAL REVENUE, PETITIONER HEREIN, GAVE
THE RESPONDENT NOTICE OF TAX DEFICIENCIES ASSESSED AGAINST HIM FOR THE
TAXABLE YEARS 1923, 1924, 1938, 1940 AND 1941.  IN THESE ASSESSMENTS,
AMONG OTHER ITEMS, THE COMMISSIONER CLAIMED DEFICIENCIES IN THE
RESPONDENT'S INCOME TAX PAYMENTS BASED UPON HIS ABOVE-DESCRIBED 1938
AND 1941 RECEIPTS.  THE RESPONDENT, IN A PETITION TO THE TAX COURT FOR
A REDETERMINATION OF SUCH DEFICIENCIES, NOT ONLY CONTESTED THE
ADDITIONAL TAXES ASSESSED AGAINST HIM, WHICH WERE BASED UPON THE FULL
AMOUNTS OF THOSE RECEIPTS, BUT HE ASKED ALSO FOR THE REFUND TO HIM OF
THE AMOUNTS WHICH HAD BEEN WITHHELD, FOR INCOME TAX PURPOSES, FROM EACH
SUCH PAYMENT.  THE TAX COURT ENTERED JUDGMENT AGAINST HIM FOR
ADDITIONAL TAXES FOR 1938, 1940 AND 1941, IN THE RESPECTIVE AMOUNTS OF
$11,806.71, $8,080.83 AND $1,854.85.  IN SPEAKING OF THE TAXES FOR 1940
AND 1941, THE TAX COURT SAID: 

"THE FIRST ISSUE, FOUND ALSO IN THE YEAR 1938, PRESENTS THE QUESTION
OF THE TAXABILITY OF LUMP SUM PAYMENTS FOR SERIAL RIGHTS TO LITERARY
WORKS.  COUNSEL FOR THE PETITIONER (WODEHOUSE, THE RESPONDENT HERE)
CONCEDES THAT SUBSTANTIALLY THE SAME ISSUE WAS RAISED AND DECIDED IN
SAX ROHMER, 5 T.C. 183; AFFD., 153 FED.(2D) 61; CERTIORARI DENIED, 328
U.S. 862. 

"IN SAX ROHMER, SUPRA, WE HELD THAT THE LUMP SUM PAYMENTS FOR SERIAL
RIGHTS WERE ROYALTIES AND, AS SUCH, WERE TAXABLE TO THE RECIPIENT.  THE
ARGUMENTS ADVANCED IN THE CASES AT BAR FOLLOW THE SAME PATTERN AS THOSE
APPEARING IN THE SAX ROHMER CASE, AS PRESENTED TO THIS COURT AND TO THE
CIRCUIT COURT OF APPEALS.  THE PETITIONER'S CONTENTIONS WERE REJECTED
IN BOTH COURTS AND FOR THE SAME REASONS STATED IN THE OPINIONS THEREIN,
THEY ARE REJECTED HERE."  8 T.C. 637, 653. 

AS THE RESPONDENT'S TAXES FOR 1938 AND 1941 HAD BEEN PAID TO THE
COLLECTOR OF INTERNAL REVENUE AT BALTIMORE, MARYLAND, HIS PETITION FOR
REVIEW OF THE TAX COURT'S JUDGMENT FOR THOSE YEARS WAS FILED IN THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.  THE JUDGMENT
AGAINST HIM WAS THERE REVERSED, 166 F.2D 986, ONE JUDGE DISSENTING ON
THE AUTHORITY AND REASONING OF ROHMER V. COMMISSIONER, 153 F.2D
61(C.A.2D CIR.).  BECAUSE OF THE RESULTING CONFLICT BETWEEN THE
CIRCUITS AND ALSO BECAUSE COMPARABLE ISSUES AS TO THIS RESPONDENT'S
TAXES FOR 1940 WERE PENDING BEFORE THE COURT OF APPEALS FOR THE SECOND
CIRCUIT, WE GRANTED CERTIORARI.  335 U.S. 807.  FN4 

THE PETITIONER CONTENDS THAT RECEIPTS OF THE TYPE BEFORE US LONG HAVE
BEEN RECOGNIZED AS RENTALS OR ROYALTIES PAID FOR THE USE OF OR FOR THE
PRIVILEGE OF USING IN THE UNITED STATES, PATENTS, COPYRIGHTS AND OTHER
LIKE PROPERTY.  KEEPING IN MIND THAT, BEFORE 1936, SUCH RECEIPTS WERE
EXPRESSLY SUBJECT TO WITHHOLDING AS PART OF THE TAXABLE INCOME OF
NONRESIDENT ALIEN INDIVIDUALS, HE CONTENDS THAT THOSE RECEIPTS REMAINED
TAXABLE AND SUBJECT TO WITHHOLDING IN 1938 AND 1941, AFTER THE
STANDARDS FOR TAXATION OF SUCH ALIENS HAD BEEN MADE EXPRESSLY
COTERMINOUS WITH THE STANDARDS FOR SUBJECTING THIS PART OF THEIR INCOME
TO WITHHOLDING PROCEDURES. 

IN OPPOSITION, THE RESPONDENT ARGUES, FIRST, THAT EACH SUM HE
RECEIVED WAS A PAYMENT MADE TO HIM IN RETURN FOR HIS SALE OF A PROPERTY
INTEREST IN A COPYRIGHT AND NOT A PAYMENT TO HIM OF A ROYALTY FOR
RIGHTS GRANTED BY HIM UNDER THE PROTECTION OF HIS COPYRIGHT.  BEING THE
PROCEEDS OF A SALE BY HIM OF SUCH A PROPERTY INTEREST, HE CONCLUDES
THAT THOSE PROCEEDS WERE NOT REQUIRED TO BE INCLUDED IN HIS TAXABLE
GROSS INCOME BECAUSE THE CONTROLLING REVENUE ACTS DID NOT ATTEMPT TO
TAX NONRESIDENT ALIEN INDIVIDUALS, LIKE HIMSELF, UPON INCOME FROM SALES
OF PROPERTY.  SECONDLY, THE RESPONDENT ARGUES THAT, EVEN IF HIS
RECEIPTS WERE TO BE TREATED AS ROYALTIES, YET EACH WAS RECEIVED IN A
SINGLE LUMP SUM AND NOT "ANNUALLY" OR "PERIODICALLY," AND THAT,
THEREFORE, THEY DID NOT COME WITHIN HIS TAXABLE GROSS INCOME. 

THE PETITIONER REPLIES THAT, IN THIS CASE, WE DO NOT PROPERLY REACH
THE FINE QUESTIONS OF TITLE, OR OF SALES OR COPYRIGHT LAW, THUS RAISED
BY THE RESPONDENT AS TO THE DIVISIBILITY OF A COPYRIGHT OR AS TO THE
SALE OF SOME INTEREST IN A COPYRIGHT.  THE PETITIONER STATES THAT THE
ISSUE HERE IS ONE OF STATUTORY INTERPRETATION.  IT IS CONFINED
PRIMARILY TO THE TAXABILITY OF THE RESPONDENT'S RECEIPTS WITHIN THE
BROAD, RATHER THAN NARROW, LANGUAGE OF CERTAIN REVENUE ACTS.  ATTENTION
MUST BE FOCUSED ON THOSE REVENUE ACTS.  IF THEIR TERMS MADE THESE
RECEIPTS TAXABLE BECAUSE OF THE GENERAL NATURE OF THE TRANSACTIONS OUT
OF WHICH THE RECEIPTS ARISE, NAMELY, PAYMENTS FOR THE USE OF OR FOR THE
PRIVILEGE OF USING COPYRIGHTS, THEN IT IS THOSE STATUTORY DEFINITIONS,
PROPERLY READ IN THE LIGHT OF THEIR CONTEXT AND OF THEIR LEGISLATIVE
HISTORY, THAT MUST DETERMINE THE TAXABILITY OF THE RECEIPTS.  HE ARGUES
THAT THE LANGUAGE OF THE REVENUE ACTS DOES NOT CONDITION THE RIGHT OF
THE UNITED STATES TO ITS REVENUE UPON ANY FINE POINT OF PROPERTY LAW
BUT COVERS THESE RECEIPTS IN ANY EVENT.  TREATING THE RESPONDENT'S
RECEIPTS SIMPLY AS REPRESENTING PAYMENTS FOR THE USE OF OR THE
PRIVILEGE OF USING COPYRIGHTS THE PETITIONER ARGUES THAT THEY
CONSTITUTED INCOME THAT WAS SUBJECT BOTH TO WITHHOLDING AND TO TAXATION
IN 1938 AND 1941.  HE CLAIMS FINALLY THAT THE RESPONDENT CANNOT ESCAPE
TAXATION OF SUCH RECEIPTS MERELY BY SHOWING THAT EACH PAYMENT WAS
RECEIVED BY HIM IN A LUMP SUM IN ADVANCE FOR CERTAIN USES OF A
COPYRIGHT, INSTEAD OF IN SEVERAL PAYMENTS TO BE MADE AT INTERMEDIATE
DATES DURING THE LIFE OF THE COPYRIGHT. 

                                  I. 

SUMS RECEIVED BY A NONRESIDENT ALIEN INDIVIDUAL FOR THE USE OF A
COPYRIGHT IN THE UNITED STATES CONSTITUTED GROSS INCOME TAXABLE TO HIM
UNDER THE REVENUE ACT OF 1938 AND THE INTERNAL REVENUE CODE. 

UNDER THE INCOME TAX LAWS OF THE UNITED STATES, SUMS RECEIVED BY A
NONRESIDENT ALIEN AUTHOR NOT ENGAGED IN TRADE OR BUSINESS WITHIN THE
UNITED STATES AND NOT HAVING AN OFFICE OR PLACE OF BUSINESS THEREIN
LONG HAVE BEEN REQUIRED TO BE INCLUDED IN HIS GROSS INCOME FOR OUR
FEDERAL TAX PURPOSES.  SUCH RECEIPTS HAVE BEEN AN APPROPRIATE AND
READILY COLLECTIBLE SUBJECT OF TAXATION.  A REVIEW OF THE STATUTES,
REGULATIONS, ADMINISTRATIVE PRACTICES AND COURT DECISIONS DISCLOSES
THIS POLICY AND, AT LEAST FROM A REVENUE STANDPOINT, NO REASON HAS
APPEARED FOR CHANGING IT. 

SINCE THE EARLY DAYS OF OUR INCOME TAX LEVIES, RENTALS AND ROYALTIES
PAID FOR THE USE OF OR FOR THE PRIVILEGE OF USING IN THE UNITED STATES,
PATENTS, COPYRIGHTS AND OTHER LIKE PROPERTY HAVE BEEN TAXED TO
NONRESIDENT ALIENS AND FOR MANY YEARS AT LEAST A PART OF THE TAX HAS
BEEN WITHHELD AT THE SOURCE OF THE INCOME.  TO EXEMPT THIS TYPE OF
INCOME FROM TAXATION IN 1938 OR 1941, IN THE FACE OF THIS LONG RECORD
OF ITS TAXATION, WOULD REQUIRE A CLEARNESS AND POSITIVENESS OF
LEGISLATIVE DETERMINATION TO CHANGE THE ESTABLISHED PROCEDURE THAT IS
ENTIRELY ABSENT HERE. 

THE POLICY OF THIS COURT IN THIS GENERAL FIELD OF STATUTORY
INTERPRETATION WAS STATED IN 1934 IN A CASE WHICH DEALT WITH THE
TAXATION OF A SOMEWHAT COMPARABLE FORM OF INCOME OF A FOREIGN
CORPORATION.  IN HELVERING V. STOCKHOLMS ENSKILDA BANK, 293 U.S. 84,
THE QUESTION PRESENTED WAS THAT OF THE PROPER INTERPRETATION TO BE
GIVEN TO SEC. 217(A)(1) OF THE REVENUE ACT OF 1926, C. 27, 44 STAT. 9,
30(ANALOGOUS TO SEC. 119(A)(1) OF THE REVENUE ACT OF 1938, 52 STAT.
503, NOW BEFORE US).  CERTAIN SUMS HAD BEEN RECEIVED BY A FOREIGN
CORPORATION FROM THE UNITED STATES GOVERNMENT IN THE FORM OF INTEREST
UPON A REFUND OF AN OVERPAYMENT BY THAT CORPORATION OF ITS INCOME
TAXES.  THIS COURT HELD THAT SUCH INTEREST, IN TURN, CONSTITUTED
TAXABLE GROSS INCOME DERIVED BY THE FOREIGN CORPORATION FROM A SOURCE
WITHIN THE UNITED STATES, BECAUSE IT AMOUNTED TO INTEREST UPON AN
INTEREST-BEARING OBLIGATION OF A RESIDENT OF THE UNITED STATES WITHIN
THE MEANING OF THE ACT.  THIS INTERPRETATION WAS ADOPTED IN OPPOSITION
TO THE FOREIGN CORPORATION'S ARGUMENT THAT THE PAYMENT SHOULD BE
EXEMPTED BECAUSE IT AMOUNTED TO INTEREST ON ONE OF THE "OBLIGATIONS OF
THE UNITED STATES" AND THAT INTEREST ON SUCH AN OBLIGATION WAS
EXPRESSLY EXEMPTED FROM TAXATION BY SEC. 213(B)(4) OF THE REVENUE ACT
OF 1926(ANALOGOUS TO SEC. 22(B)(4) OF THE REVENUE ACT OF 1938).  THIS
COURT DISTINGUISHED BETWEEN THE MEANING OF THE WORD "OBLIGATIONS" IN
THE CONTEXT OF THE DIFFERENT SECTIONS OF THE ACT AND STATED THE
APPLICABLE GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION AS FOLLOWS: 
"THE GENERAL OBJECT OF THIS ACT IS TO PUT MONEY INTO THE FEDERAL
TREASURY; AND THERE IS MANIFEST IN THE REACH OF ITS MANY PROVISIONS AN
INTENTION ON THE PART OF CONGRESS TO BRING ABOUT A GENEROUS ATTAINMENT
OF THAT OBJECT BY IMPOSING A TAX UPON PRETTY MUCH EVERY SORT OF INCOME
SUBJECT TO THE FEDERAL POWER.  PLAINLY, THE PAYMENT IN QUESTION
CONSTITUTES INCOME DERIVED FROM A SOURCE WITHIN THE UNITED STATES; AND
THE NATURAL AIM OF CONGRESS WOULD BE TO REACH IT.  IN IRWIN V. GAVIT,
268 U.S. 161, 166, THIS COURT, REJECTING THE CONTENTION THAT CERTAIN
PAYMENTS THERE INVOLVED DID NOT CONSTITUTE INCOME, SAID:  'IF THESE
PAYMENTS PROPERLY MAY BE CALLED INCOME BY THE COMMON UNDERSTANDING OF
THAT WORD AND THE STATUTE HAS FAILED TO HIT THEM IT HAS MISSED SO MUCH
OF THE GENERAL PURPOSE THAT IT EXPRESSES AT THE START.  CONGRESS
INTENDED TO USE ITS POWER TO THE FULL EXTENT.  EISNER V. MACOMBER, 252
U.S. 189, 203.'  ALTHOUGH CONGRESS INTENDED, AS THE COURT HELD IN THE
VISCOSE CASE, SUPRA (56 F.2D 1033(C.A.3D CIR.)), TO INCLUDE INTEREST ON
A TAX REFUND MADE TO A DOMESTIC CORPORATION, WE ARE ASKED TO DENY SUCH
INTENTION IN RESPECT OF A COMPETING FOREIGN CORPORATION.  BUT WE SEE
NOTHING IN THE RELATIONSHIP OF A FOREIGN CORPORATION TO THE UNITED
STATES, OR IN ANY OTHER CIRCUMSTANCE CALLED TO OUR ATTENTION, WHICH
FAIRLY SHOWS THAT SUCH A DISCRIMINATION WAS WITHIN THE CONTEMPLATION OF
CONGRESS.  ON THE CONTRARY, THE NATURAL CONCLUSION IS THAT IF ANY
DISCRIMINATION HAD BEEN INTENDED IT WOULD HAVE BEEN MADE IN FAVOR OF,
AND NOT AGAINST, THE DOMESTIC CORPORATION, WHICH CONTRIBUTES IN A MUCH
MORE SUBSTANTIAL DEGREE TO THE SUPPORT OF THE PEOPLE AND GOVERNMENT OF
THE UNITED STATES."  ID. AT PP. 89-90. 

AND FURTHER: 

"IN THE FOREGOING DISCUSSION, WE HAVE NOT BEEN UNMINDFUL OF THE RULE,
FREQUENTLY STATED BY THIS COURT, THAT TAXING ACTS 'ARE NOT TO BE
EXTENDED BY IMPLICATION BEYOND THE CLEAR IMPORT OF THE LANGUAGE USED,'
AND THAT DOUBTS ARE TO BE RESOLVED AGAINST THE GOVERNMENT AND IN FAVOR
OF THE TAXPAYER.  THE RULE IS A SALUTARY ONE, BUT IT DOES NOT APPLY
HERE.  THE INTENTION OF THE LAWMAKER CONTROLS IN THE CONSTRUCTION OF
TAXING ACTS AS IT DOES IN THE CONSTRUCTION OF OTHER STATUTES, AND THAT
INTENTION IS TO BE ASCERTAINED, NOT BY TAKING THE WORD OR CLAUSE IN
QUESTION FROM ITS SETTING AND VIEWING IT APART, BUT BY CONSIDERING IT
IN CONNECTION WITH THE CONTEXT, THE GENERAL PURPOSES OF THE STATUTE IN
WHICH IT IS FOUND, THE OCCASION AND CIRCUMSTANCES OF ITS USE, AND OTHER
APPROPRIATE TESTS FOR THE ASCERTAINMENT OF THE LEGISLATIVE WILL. 
COMPARE REIN V. LANE, L.R. 2 Q.B. CASES 144, 151.  THE INTENTION BEING
THUS DISCLOSED, IT IS ENOUGH THAT THE WORD OR CLAUSE IS REASONABLY
SUSCEPTIBLE OF A MEANING CONSONANT THEREWITH, WHATEVER MIGHT BE ITS
MEANING IN ANOTHER AND DIFFERENT CONNECTION.  WE ARE NOT AT LIBERTY TO
REJECT THE MEANING SO ESTABLISHED AND ADOPT ANOTHER LYING OUTSIDE THE
INTENTION OF THE LEGISLATURE, SIMPLY BECAUSE THE LATTER WOULD RELEASE
THE TAXPAYER OR BEAR LESS HEAVILY AGAINST HIM.  TO DO SO WOULD BE NOT
TO RESOLVE A DOUBT IN HIS FAVOR, BUT TO SAY THAT THE STATUTE DOES NOT
MEAN WHAT IT MEANS."  ID. AT PP. 93-94. 

A. THESE RECEIPTS UNQUESTIONABLY WOULD HAVE BEEN TAXED TO A
NONRESIDENT ALIEN INDIVIDUAL IF RECEIVED BY HIM UNDER THE REVENUE ACT
OF 1934. 

THE BACKGROUND AND DEVELOPMENT OF THE PARTICULAR PROVISIONS BEFORE US
EMPHASIZE THE CONGRESSIONAL PURPOSE TO TAX THIS TYPE OF INCOME.  THEY
DISCLOSE THE FULL FAMILIARITY OF CONGRESS WITH THIS GENERAL TYPE OF
TRANSACTION.  THROUGHOUT THE HISTORY OF OUR FEDERAL INCOME TAXES SINCE
THE SIXTEENTH AMENDMENT TO OUR CONSTITUTION, THE REVENUE ACTS HAVE
EXPRESSLY SUBJECTED TO TAXATION THE INCOME RECEIVED BY NONRESIDENT
ALIEN INDIVIDUALS FROM SOURCES WITHIN THE UNITED STATES.  FOR EXAMPLE,
THERE IS NO DOUBT THAT THE RECEIPTS HERE IN QUESTION WOULD HAVE BEEN
TAXABLE TO THE RESPONDENT IF THEY HAD BEEN RECEIVED BY HIM UNDER THE
REVENUE ACT OF 1934, C. 277, 48 STAT. 680, ET SEQ., AND THE PRESENT
ISSUE RESOLVES ITSELF LARGELY INTO A DETERMINATION OF WHETHER SUCH
RECEIPTS WERE RELIEVED FROM TAXATION BY THE REVENUE ACT OF 1936, C.
690, 49 STAT. 1648, ET SEQ., THROUGH CERTAIN CHANGES IN THE INCOME TAX
LAWS THAT WERE MADE BY THAT ACT AND WHICH WERE STILL IN EFFECT IN 1938
AND 1941. 

UNDER THE REVENUE ACT OF 1934, THE INCOME OF A NONRESIDENT ALIEN
INDIVIDUAL WAS TAXED AT THE SAME RATES AS WAS THE INCOME OF A RESIDENT
CITIZEN (SECS. 11 AND 12) BUT HIS TAXABLE GROSS INCOME WAS LIMITED
WHOLLY TO THAT WHICH HE HAD RECEIVED "FROM SOURCES WITHIN THE UNITED
STATES," SEC. 211(A).  FN5  SUCH SOURCES WERE DESCRIBED IN SEC. 119 OF
THAT ACT, AND THE MATERIAL PORTIONS OF THAT SECTION HAVE REMAINED
UNCHANGED EVER SINCE.  THEY GIVE THEIR OWN DEFINITION OF RENTALS AND
ROYALTIES.  THESE HAVE BEEN QUOTED FROM ABOVE AND THEY ARE SET FORTH IN
FULL IN APPENDIX A, INFRA, P. 397.  THE ACT OF 1934 THUS SOUGHT TO
INCLUDE AS TAXABLE GROSS INCOME ANY INCOME WHICH A NONRESIDENT ALIEN
INDIVIDUAL RECEIVED AS ROYALTIES FOR THE PRIVILEGE OF USING ANY
COPYRIGHTS IN THE UNITED STATES AND ALSO SOUGHT TO TAX HIS INCOME FROM
THE SALE OF ANY PERSONAL PROPERTY WHICH HE HAD PRODUCED (IN WHOLE OR IN
PART) OUTSIDE THE UNITED STATES BUT HAD SOLD WITHIN THE UNITED STATES. 
SEC. 119(A)(4) AND (E)(2).  AS A MECHANISM OF COLLECTION, THE ACT ALSO
SOUGHT TO WITHHOLD FROM NONRESIDENT ALIEN INDIVIDUALS, AT THE SOURCE OF
PAYMENT, THE ENTIRE NORMAL TAX OF 4% COMPUTED UPON NUMEROUS
CLASSIFICATIONS OF THEIR INCOME NAMED IN SEC. 143(B).  FN6  THIS
LANGUAGE IS IMPORTANT IN THIS CASE.  IT EXPRESSLY INCLUDED CERTAIN
FORMS OF INTEREST AND ALSO "RENT, SALARIES, WAGES, PREMIUMS, ANNUITIES,
COMPENSATIONS, REMUNERATIONS, EMOLUMENTS, OR OTHER FIXED OR
DETERMINABLE ANNUAL OR PERIODICAL GAINS, PROFITS, AND INCOME, OF ANY
NONRESIDENT ALIEN INDIVIDUAL, ..."  WHILE ROYALTIES WERE NOT MENTIONED
SPECIFICALLY IN THIS STATUTORY WITHHOLDING CLAUSE, THEY HAD BEEN
EXPRESSLY LISTED IN THE REGULATIONS, SINCE LONG BEFORE 1934, SO THAT
THERE WAS NO DOUBT THAT THEY WERE TO BE SUBJECT TO WITHHOLDING AS A
MATTER OF INTERPRETATION.  IT WAS EQUALLY CLEAR THAT INCOME DERIVED
FROM A SALE IN THE UNITED STATES, OF EITHER REAL OR PERSONAL PROPERTY,
WAS NOT INCLUDED, EITHER EXPRESSLY OR BY IMPLICATION OR INTERPRETATION,
IN THE INCOME SUBJECT TO A WITHHOLDING OF THE TAX ON IT AT THE SOURCE
OF THE INCOME.  THE REGULATIONS, SINCE THE ACT OF 1924(U.S. TREAS. REG.
65, ART. 362(1924)) TO THE PRESENT TIME, HAVE CONTAINED DECISIVE
STATEMENTS ON THESE POINTS.  SUCH REGULATIONS HAVE BEEN SUBSTANTIALLY
IDENTICAL WITH THE FOLLOWING WHICH APPEARED IN TREASURY REGULATIONS 86,
ARTICLE 143-2(1934): 

"ONLY FIXED OR DETERMINABLE ANNUAL OR PERIODICAL INCOME IS SUBJECT TO
WITHHOLDING.  THE ACT SPECIFICALLY INCLUDES IN SUCH INCOME, INTEREST,
RENT, SALARIES, WAGES, PREMIUMS, ANNUITIES, COMPENSATIONS,
REMUNERATIONS, AND EMOLUMENTS.  BUT OTHER KINDS OF INCOME ARE INCLUDED,
AS, FOR INSTANCE, ROYALTIES. 

"...  THE INCOME DERIVED FROM THE SALE IN THE UNITED STATES OF
PROPERTY, WHETHER REAL OR PERSONAL, IS NOT FIXED OR DETERMINABLE ANNUAL
OR PERIODICAL INCOME." 

APART FROM THESE PROVISIONS REQUIRING THE WITHHOLDING OF TAXES AT THE
SOURCE OF THE INCOME, THE REVENUE ACTS HAVE CONTAINED OTHER PROVISIONS,
IN SIMILAR LANGUAGE, CALLING FOR THE REPORTING TO THE COMMISSIONER OF
INTERNAL REVENUE OF MATERIAL INFORMATION AS TO CERTAIN INCOME WHICH
MIGHT BE TAXABLE.  THIS LANGUAGE HAS RECEIVED AN INTERPRETATION WHICH
IS RELATED TO AND CONSISTENT WITH THAT HERE GIVEN TO THE PROVISIONS AS
TO WITHHOLDING TAXES.  FN7 

THESE STATUTES AND REGULATIONS SHOW THAT, UNDER THE ACT OF 1934,
CONGRESS SOUGHT TO TAX (AND WITHHOLD ALL OR PART OF THE TAX ON) THE
INCOME OF A NONRESIDENT ALIEN INDIVIDUAL INSOFAR AS IT WAS DERIVED FROM
PAYMENTS FOR THE USE OF OR FOR THE PRIVILEGE OF USING COPYRIGHTS IN THE
UNITED STATES.  IT ALSO SOUGHT TO TAX (ALTHOUGH IT COULD NOT GENERALLY
WITHHOLD THE TAX ON) ANY GAIN WHICH THE TAXPAYER DERIVED FROM TEE SALE
OF PERSONAL PROPERTY PRODUCED BY HIM WITHOUT THE UNITED STATES BUT SOLD
WITHIN THE UNITED STATES.  ACCORDINGLY, IF THE RECEIPTS NOW BEFORE US
HAD BEEN RECEIVED BY THE RESPONDENT UNDER THE ACT OF 1934, THEY WOULD
HAVE BEEN TAXABLE WHETHER THEY WERE TREATED AS PAYMENTS IN THE NATURE
OF ROYALTIES FOR THE USE OF THE COPYRIGHTS UNDER SEC. 119(A) OR WERE
TREATED AS PAYMENTS OF A SALE'S PRICE FOR CERTAIN INTERESTS IN
COPYRIGHTS UNDER SEC. 119(E).  THE REGULATIONS HELPFULLY CARRIED THIS
ANALYSIS FURTHER.  THEY SHOWED THAT, WHILE BOTH FORMS OF INCOME WERE
TAXABLE, YET IT WAS ONLY THE ROYALTY PAYMENTS (AND NOT THE SALES'
PROCEEDS) THAT WERE SUBJECT TO THE WITHHOLDING PROCEDURE.  A TREASURY
DECISION MADE IN 1933, UNDER THE REVENUE ACTS EXTENDING FROM 1921 TO
1928,  FN8  AND A DECISION OF THE COURT OF APPEALS FOR THE SECOND
CIRCUIT MADE IN 1938, UNDER THE REVENUE ACT OF 1928, C. 852, 45 STAT.
791, SUSTAIN THE ABOVE CONCLUSIONS.  THE LATTER CASE WAS THAT OF
SABATINI V. COMMISSIONER, 98 F.2D 753(C.A.2D CIR.),  FN9  LATER
DISCUSSED AND APPROVED IN ROHMER V. COMMISSIONER, 153 F.2D 61,
63(C.A.2D CIR.).  INCIDENTALLY, THESE OPINIONS DECLARED NOT ONLY THAT
THE TAXES IN QUESTION WERE IMPOSED UPON THE RECEIPTS AS ROYALTIES BUT
THAT IT MADE NO DIFFERENCE WHETHER SUCH ROYALTIES WERE EACH RECEIVED IN
LUMP SUMS IN FULL PAYMENT IN ADVANCE, TO COVER THE USE OF THE
RESPECTIVE COPYRIGHTS THROUGHOUT THEIR STATUTORY LIVES, OR WHETHER THE
ROYALTIES WERE RECEIVED FROM TIME TO TIME AND IN LESSER SUMS. 

B. THE REVENUE ACT OF 1936 PRESERVED THE TAXABILITY OF THE SEVERAL
KINDS OF INCOME OF NONRESIDENT ALIEN INDIVIDUALS WHICH HAD BEEN THE
SUBJECT OF WITHHOLDING AT THEIR RESPECTIVE SOURCES, INCLUDING RECEIPTS
IN THE NATURE OF ROYALTIES FOR THE USE OF COPYRIGHTS IN THE UNITED
STATES. 

THE REVENUE ACT OF 1936 DID NOT CHANGE MATERIALLY THE STATUTORY
DEFINITION OF GROSS INCOME FROM SOURCES WITHIN THE UNITED STATES UNDER
SEC. 119.  IT DID, HOWEVER, AMEND SEC. 211(A)  FN10 MATERIALLY IN ITS
DESCRIPTION OF THE TAXABLE INCOME OF NONRESIDENT ALIEN INDIVIDUALS. 
THESE AMENDMENTS (1) SUBSTITUTED A SPECIAL FLAT RATE OF 10% FOR THE
GENERAL NORMAL TAX AND SURTAX RATES, (2) REQUIRED THIS ENTIRE SPECIAL
TAX, IN THE USUAL CASE, TO BE WITHHELD AT THE SOURCE OF THE TAXABLE
INCOME, (3) LIMITED THE TAXABILITY OF THE INCOME OF EACH NONRESIDENT
ALIEN INDIVIDUAL TO THOSE KINDS OF INCOME TO WHICH THE WITHHOLDING
PROVISIONS ALSO APPLIED, AND (4)(EXCEPT FOR THE ADDITION OF DIVIDENDS)
INSERTED VERBATIM, AS A NEW STATEMENT OF THE TYPES OF TAXABLE INCOME OF
A NONRESIDENT ALIEN INDIVIDUAL (NOT ENGAGED IN TRADE OR BUSINESS WITHIN
THE UNITED STATES AND NOT HAVING AN OFFICE OR PLACE OF BUSINESS
THEREIN), THE LANGUAGE THAT PREVIOUSLY HAD BEEN USED TO STATE THE
SPECIFIC TYPES OF INCOME TO WHICH THE WITHHOLDING PROCEDURE WAS TO
APPLY.  SEE ITS SEC. 143(B)  FN11  PARALLELING ITS AMENDED SEC.
211(A).  BY THUS RESTRICTING THE INCOME TAX TO THOSE SPECIFIC TYPES OF
INCOME TO WHICH THE WITHHOLDING PROCEDURE HAD PREVIOUSLY APPLIED,
CONGRESS AUTOMATICALLY RELIEVED NONRESIDENT ALIEN INDIVIDUALS FROM THE
TAXATION OF THEIR INCOME FROM CERTAIN SALES OF REAL OR PERSONAL
PROPERTY, PREVIOUSLY TAXED.  THIS AMENDMENT, ON THE OTHER HAND,
RETAINED AND INCREASED THE TAX ON THE VERY KIND OF INCOME THAT IS
BEFORE US.  IT ALSO INCREASED THE PORTION OF SUCH INCOME TO BE WITHHELD
AT ITS SOURCE TO MEET THE NEW AND HIGHER FLAT RATE OF TAX. 

THE LEGISLATIVE HISTORY OF THE REVENUE ACT OF 1936 CONFIRMS THE
SPECIAL MEANING THUS APPARENT ON ITS FACE.  IT EMPHASIZES THE POLICY
WHICH EXPRESSLY MARKED THE ENACTMENT OF THIS ACT, INCLUDING
PARTICULARLY THESE AMENDMENTS.  THE PRACTICAL SITUATION WAS THAT IT HAD
BEEN DIFFICULT FOR UNITED STATES TAX OFFICIALS TO ASCERTAIN THE TAXABLE
INCOME (IN THE NATURE OF CAPITAL GAINS) WHICH HAD BEEN DERIVED FROM
SALES OF PROPERTY AT A PROFIT BY NONRESIDENT ALIEN INDIVIDUALS, OR BY
FOREIGN CORPORATIONS, WHEN THE RESPECTIVE TAXPAYERS WERE NOT ENGAGED IN
TRADE OR BUSINESS WITHIN THE UNITED STATES AND DID NOT HAVE AN OFFICE
OR PLACE OF BUSINESS THEREIN.  THIS DIFFICULTY WAS IN CONTRAST TO THE
EASE OF COMPUTING AND COLLECTING A TAX FROM CERTAIN OTHER KINDS OF
INCOME, INCLUDING PAYMENTS FOR THE USE OF PATENTS AND COPYRIGHTS, FROM
WHICH THE UNITED STATES INCOME TAXES WERE BEING, WHOLLY OR PARTIALLY,
WITHHELD AT THE SOURCE.  THE CONGRESSIONAL COMMITTEE REPORTS EXPRESSED
A PURPOSE OF CONGRESS TO LIMIT FUTURE TAXES ON NONRESIDENT ALIEN
INDIVIDUALS TO THOSE READILY COLLECTIBLE.  FN12  WITH A VIEW EVIDENTLY
TO SECURING SUBSTANTIALLY AS MUCH REVENUE AS BEFORE, CONGRESS THEREUPON
APPLIED A NEW FLAT RATE OF 10% TO NONRESIDENT ALIEN INDIVIDUALS AND OF
15% TO FOREIGN CORPORATIONS, THE ENTIRE AMOUNT OF THIS FLAT RATE OF TAX
TO BE WITHHELD AND COLLECTED AT THE SOURCE OF THE INCOME.  THE REPORTS
REFERRED ALSO TO INCREASES IN STOCK TRANSFER TAXES WHICH MIGHT RESULT
FROM THUS REMOVING THE INCOME TAX FROM PROFITS OF NONRESIDENT ALIEN
INDIVIDUALS ON THEIR STOCK SALES.  CONGRESS RECOGNIZED A VALUE AND A
CONVENIENCE IN THUS TURNING TO THE ACCESSIBLE, FIXED AND DETERMINABLE
INCOME OF NONRESIDENT ALIENS.  THERE IS NO DOUBT THAT THESE STEPS
SOUGHT TO INCREASE OR AT LEAST TO MAINTAIN THE EXISTING VOLUME OF
REVENUE.  FN13  NO SUGGESTION APPEARS THAT CONGRESS INTENDED OR WISHED
TO RELIEVE FROM TAXATION THE READILY ACCESSIBLE AND LONG-ESTABLISHED
SOURCE OF REVENUE TO BE FOUND IN THE PAYMENTS MADE TO NONRESIDENT
ALIENS FOR THE USE OF PATENTS OR COPYRIGHTS IN THE UNITED STATES.  MUCH
LESS WAS ANY SUGGESTION MADE THAT LUMP SUM ADVANCE PAYMENTS OF RENTALS
OR ROYALTIES SHOULD BE EXEMPTED FROM TAXATION WHILE AT THE SAME TIME
SMALLER REPEATED PAYMENTS OF RENTALS OR ROYALTIES WOULD BE TAXED AND
COLLECTED AT THE SOURCE OF THE INCOME.  TO HAVE EXEMPTED THESE
NONRESIDENT ALIENS FROM THESE READILY COLLECTIBLE TAXES DERIVED FROM
SOURCES WITHIN THE UNITED STATES WOULD HAVE DISCRIMINATED IN THEIR
FAVOR AGAINST RESIDENT CITIZENS OF THE UNITED STATES WHO WOULD BE
REQUIRED TO PAY THEIR REGULAR INCOME TAX ON SUCH INCOME, IF TREATED AS
ROYALTIES WITHIN THE MEANING OF OUR GROSS INCOME PROVISIONS, OR AT
LEAST TO PAY A TAX UPON THEM AS CAPITAL GAINS, IF TREATED AS INCOME
FROM SALES OF CAPITAL WITHIN THE MEANING OF OUR CAPITAL GAINS
PROVISIONS.  NO SUCH PURPOSE TO DISCRIMINATE CAN BE IMPLIED. 
ACCORDINGLY, AT THE TIME IN 1936 WHEN THESE AMENDMENTS WERE BEING
ENACTED INTO SEC. 211(A), THE PROVISIONS FOR TAXING THE GROSS INCOME OF
NONRESIDENT ALIEN INDIVIDUALS UNDER THE REVENUE ACT OF 1934 ALREADY HAD
BEEN LONG AND OFFICIALLY INTERPRETED AS COVERING RECEIPTS FROM
ROYALTIES AS EXPRESSLY AND BROADLY DEFINED IN SEC. 119(A) AND SUBJECTED
TO WITHHOLDING AT THE SOURCE OF INCOME UNDER SEC. 143(B).  THE
LEGISLATIVE HISTORY OF THE 1936 AMENDMENTS IS, THEREFORE, A REFUTATION
OF ANY CLAIM THAT CONGRESS, AT THAT TIME, WAS SEEKING TO EXEMPT SUCH
TAXPAYERS FROM THOSE APPROPRIATE AND READILY COLLECTIBLE ITEMS.  ON THE
OTHER HAND, THAT HISTORY SHOWS THAT CONGRESS WAS SEEKING TO CONTINUE TO
TAX, AND EVEN TO INCREASE THE TAX UPON, THOSE KINDS OF INCOME WHICH HAD
BEEN FOUND TO BE READILY WITHHOLDABLE AT THEIR RESPECTIVE SOURCES. 
ACCORDINGLY, WHAT CONGRESS DID WAS TO INCORPORATE THE VERY LANGUAGE OF
THE WITHHOLDING PROVISIONS OF SEC. 143(B) INTO THE LANGUAGE OF THE
TAXING SEC. 211(A).  THE REGULATIONS UNDER SEC. 143(B), QUOTED ABOVE
SUBSTANTIALLY AS BEING IN EFFECT SINCE 1924, HAD ALREADY SETTLED THAT
ROYALTIES WERE INCLUDED IN SEC. 143(B).  THE TREASURY BULLETIN ALSO
SHOWED THAT LUMP SUM PAYMENTS MADE IN ADVANCE FOR LIMITED RIGHTS UNDER
COPYRIGHTS WERE INCLUDED IN THE "ROYALTIES" THUS SUBJECT TO WITHHOLDING
AND TAXATION.  THE TYPE OF TRANSACTIONS AND THE KIND OF PAYMENTS WERE
THUS IDENTIFIED.  THE BROAD LANGUAGE THERE USED IS ENTITLED TO BE
INTERPRETED IN ACCORDANCE WITH ITS PLAIN MEANING AND ESTABLISHED
USAGE.  THEREFORE, AFTER THE 1936 AMENDMENTS, IT BECAME EQUALLY CLEAR
THAT THESE RECEIPTS IN THE NATURE OF ROYALTIES WHICH WERE PREVIOUSLY
WITHHELD AT THEIR SOURCE WERE INCLUDED IN THE SOURCES OF INCOME
SPECIFIED IN SEC. 211(A) BUT THAT PROFITS FROM SALES OF PROPERTY WERE
NOT INCLUDED IN THE SOURCES OF INCOME SPECIFIED IN SEC. 211(A) ANY MORE
THAN THEY HAD BEEN UNDER SEC. 143(A).  THE DECISIONS OF THE COURT OF
APPEALS OF THE SECOND CIRCUIT IN SABATINI V. COMMISSIONER, SUPRA, IN
1938, IN RELATION TO THE REVENUE ACT OF 1928, AND IN ROHMER V.
COMMISSIONER, SUPRA, IN 1946, IN RELATION TO THE INTERNAL REVENUE CODE,
AS AMENDED IN 1940, REFLECTED THE SAME POINT OF VIEW. 

NONE OF THESE PROVISIONS OF THE ACT OF 1936 WERE CHANGED BY THE
REVENUE ACT OF 1938, THE INTERNAL REVENUE CODE, OR THE 1940 OR 1941
AMENDMENTS TO THAT CODE, EXCEPT IN RELATION TO THE SIZE OF THE TAX
RATES.  THE PRINCIPAL CHANGES EVEN IN THOSE RATES WERE TO PROVIDE
HIGHER TAXES IN THE HIGHER BRACKETS, RATHER THAN TO REDUCE THE TAXES ON
NONRESIDENT ALIENS.  FN14

              II. 

THE RECEIPT OF THE RESPECTIVE AMOUNTS BY THE RESPONDENT IN SINGLE
LUMP SUMS AS PAYMENTS IN FULL, IN ADVANCE, FOR CERTAIN RIGHTS UNDER THE
RESPECTIVE COPYRIGHTS DID NOT EXEMPT THOSE RECEIPTS FROM TAXATION. 

ONCE IT HAS BEEN DETERMINED THAT THE RECEIPTS OF THE RESPONDENT WOULD
HAVE BEEN REQUIRED TO BE INCLUDED IN HIS GROSS INCOME FOR FEDERAL
INCOME TAX PURPOSES IF THEY HAD BEEN RECEIVED IN ANNUAL PAYMENTS, OR
FROM TIME TO TIME, DURING THE LIFE OF THE RESPECTIVE COPYRIGHTS, IT
BECOMES EQUALLY CLEAR THAT THE RECEIPT OF THOSE SAME SUMS BY HIM IN
SINGLE LUMP SUMS AS PAYMENTS IN FULL, IN ADVANCE, FOR THE SAME RIGHTS
TO BE ENJOYED THROUGHOUT THE ENTIRE LIFE OF THE RESPECTIVE COPYRIGHTS
CANNOT, SOLELY BY REASON OF THE CONSOLIDATION OF THE PAYMENT INTO ONE
SUM, RENDER IT TAX EXEMPT.  NO REVENUE ACT CAN BE INTERPRETED TO REACH
SUCH A RESULT IN THE ABSENCE OF INESCAPABLY CLEAR PROVISIONS TO THAT
EFFECT.  THERE ARE NONE SUCH HERE. 

THE ARGUMENT FOR THE EXEMPTION WAS SUGGESTED BY THE PRESENCE IN SECS.
211(A) AND 143(B) OF THE WORDS "ANNUAL" AND "PERIODICAL."  IF READ
APART FROM THEIR TEXT AND LEGISLATIVE HISTORY AND SUPPLEMENTED BY THE
GRATUITOUS INSERTION AFTER THEM OF THE WORD "PAYMENTS," THEY MIGHT
SUPPORT THE LIMITING EFFECT HERE ARGUED FOR THEM.  HOWEVER, WHEN TAKEN
IN THEIR CONTEXT, AND PARTICULARLY IN THE LIGHT OF THE LEGISLATIVE
HISTORY OF THOSE ACTS, AND THE INTERPRETATION PLACED UPON THEM BY THE
TREASURY DEPARTMENT AND THE LOWER COURTS, THEY HAVE NO SUCH MEANING. 
THOSE WORDS ARE MERELY GENERALLY DESCRIPTIVE OF THE CHARACTER OF THE
GAINS, PROFITS AND INCOME WHICH ARISE OUT OF SUCH RELATIONSHIPS AS
THOSE WHICH PRODUCE READILY WITHHOLDABLE INTEREST, RENTS, ROYALTIES AND
SALARIES, CONSISTING WHOLLY OF INCOME, ESPECIALLY IN CONTRAST TO GAINS,
PROFITS AND INCOME IN THE NATURE OF CAPITAL GAINS FROM PROFITABLE SALES
OF REAL OR PERSONAL PROPERTY.  FN15 

IN THE INSTANT CASE, EACH COPYRIGHT WHICH WAS TO BE OBTAINED HAD ITS
FULL, ORIGINAL LIFE OF 28 YEARS TO RUN AFTER THE ADVANCE PAYMENT WAS
RECEIVED BY THE AUTHOR COVERING THE USE OF OR THE PRIVILEGE OF USING
CERTAIN RIGHTS UNDER IT.  FIXED AND DETERMINABLE INCOME, FROM A TAX
STANDPOINT, MAY BE RECEIVED EITHER IN ANNUAL OR OTHER PAYMENTS WITHOUT
ALTERING IN THE LEAST THE NEED OR THE REASONS FOR TAXING SUCH INCOME OR
FOR WITHHOLDING A PART OF IT AT ITS SOURCE.  ONE ADVANCE PAYMENT TO
COVER THE ENTIRE 28-YEAR PERIOD OF A COPYRIGHT COMES WITHIN THE REASON
AND REACH OF THE REVENUE ACTS AS WELL AS, OR EVEN BETTER THAN, TWO OR
MORE PARTIAL PAYMENTS OF THE SAME SUM. 

ARTICLE 143-2 OF TREASURY REGULATIONS 101, ISSUED UNDER THE REVENUE
ACT OF 1938, PROVIDED: 

"THE INCOME NEED NOT BE PAID ANNUALLY IF IT IS PAID PERIODICALLY;
THAT IS TO SAY, FROM TIME TO TIME, WHETHER OR NOT AT REGULAR
INTERVALS.  THAT THE LENGTH OF TIME DURING WHICH THE PAYMENTS ARE TO BE
MADE MAY BE INCREASED OR DIMINISHED IN ACCORDANCE WITH SOMEONE'S WILL
OR WITH THE HAPPENING OF AN EVENT DOES NOT MAKE THE PAYMENTS ANY THE
LESS DETERMINABLE OR PERIODICAL." 

SUBSTANTIALLY THIS LIBERAL LANGUAGE IN THE REGULATIONS HAS BEEN USED
IN THIS CONNECTION SINCE 1918.  (U.S. TREAS. REG. 45, ART. 362(1918).) 
SINGLE LUMP SUM PAYMENTS OF ROYALTIES WERE HELD TO BE TAXABLE UNDER THE
REVENUE ACTS OF 1921, 1924, 1926 AND 1928, I.T. 2735, XII-2 CUM. BULL. 
131(1933); UNDER THE REVENUE ACT OF 1928, SABATINI V. COMMISSIONER,
SUPRA; AND UNDER THE INTERNAL REVENUE CODE, AS AMENDED IN 1940, ROHMER
V. COMMISSIONER, SUPRA. 

FOR THE FOREGOING REASONS, WE HOLD THAT THE RECEIPTS IN QUESTION WERE
REQUIRED TO BE INCLUDED IN THE GROSS INCOME OF THE RESPONDENT FOR
FEDERAL INCOME TAX PURPOSES.  THE JUDGMENT OF THE COURT OF APPEALS
ACCORDINGLY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  THE MATERIAL PROVISIONS WERE IDENTICAL IN THE REVENUE ACT OF
1938, ENACTED MAY 28, 1938, C. 289, 52 STAT. 447, ET SEQ., AND IN THE
INTERNAL REVENUE CODE, ENACTED FEBRUARY 10, 1939, 53 STAT. 1, ET SEQ.
AMENDMENTS TO THESE PROVISIONS IN 1940 AND 1941 CHANGED ONLY THE RATES
OF THE TAXES.  FOR TEXT OF THE MATERIAL PROVISIONS, SEE APPENDIX A,
INFRA, PP. 395, 397, FOLLOWING THIS OPINION. 

FN2  SEC. 119(A)(4), 52 STAT. 504, 53 STAT. 54, 26 U.S.C. SEC.
119(A)(4).  FOR FULL TEXT OF THE MATERIAL PROVISIONS OF SEC. 119, SEE
APPENDIX A, INFRA, P. 397. 

FN3  SEE APPENDIX B, INFRA, P. 398. 

FN4  AS THE COURT BELOW HELD THAT THE RESPONDENT'S 1938 AND 1941
RECEIPTS WERE NOT SUBJECT TO TAXATION, IT DID NOT REACH THE SUBSIDIARY
ISSUES WHICH HAD BEEN RAISED AS TO THE PROPER AMOUNT OF THOSE TAXES IF
THEY WERE SUSTAINED.  SIMILARLY, THE COURT BELOW DID NOT PASS UPON THE
CLAIM THAT CERTAIN OF THE ASSESSMENTS WERE SUBJECT TO THE THREE-YEAR
STATUTE OF LIMITATIONS RATHER THAN THE FIVE-YEAR STATUTE HERE APPLIED. 
SEE SEC. 275(A) AND (C), 52 STAT. 539, 53 STAT. 86, 26 U.S.C. SEC.
275(A) AND (C).  THIS CLAIM TURNED UPON THE RECOGNITION TO BE GIVEN TO
CERTAIN ASSIGNMENTS MADE BY THE RESPONDENT TO HIS WIFE.  THOSE
ASSIGNMENTS, IF FULLY RECOGNIZED, MIGHT HAVE REDUCED THE TAX TO BE
ASSESSED AGAINST THE RESPONDENT TO AN AMOUNT LESS THAN 25% OF THE
AMOUNT ORIGINALLY STATED BY HIM IN HIS RETURN AND THUS RENDERED THE
FIVE-YEAR STATUTE INAPPLICABLE.  HOWEVER, THE EFFECT OF THOSE
ASSIGNMENTS WAS NOT PASSED UPON BY THE COURT BELOW. 

FN5  "SUPPLEMENT H - NONRESIDENT ALIEN INDIVIDUALS 

"SEC. 211.  GROSSINCOME. 

"(A)  GENERAL RULE.  - IN THE CASE OF A NONRESIDENT ALIEN INDIVIDUAL
GROSS INCOME INCLUDES ONLY THE GROSS INCOME FROM SOURCES WITHIN THE
UNITED STATES."  SEC. 211(A), 48 STAT. 735. 

FN6  "SEC.  143.  WITHHOLDING OF TAX AT SOURCE. 

"(A)  TAX-FREE COVENANT BONDS.  -   ... 

"(B)  NONRESIDENT ALIENS.  - ALL PERSONS, IN WHATEVER CAPACITY
ACTING, INCLUDING LESSEES OR MORTGAGORS OF REAL OR PERSONAL PROPERTY,
FIDUCIARIES, EMPLOYERS, AND ALL OFFICERS AND EMPLOYEES OF THE UNITED
STATES, HAVING THE CONTROL, RECEIPT, CUSTODY, DISPOSAL, OR PAYMENT OF
INTEREST (EXCEPT INTEREST ON DEPOSITS WITH PERSONS CARRYING ON THE
BANKING BUSINESS PAID TO PERSONS NOT ENGAGED IN BUSINESS IN THE UNITED
STATES AND NOT HAVING AN OFFICE OR PLACE OF BUSINESS THEREIN), RENT,
SALARIES, WAGES, PREMIUMS, ANNUITIES, COMPENSATIONS, REMUNERATIONS,
EMOLUMENTS, OR OTHER FIXED OR DETERMINABLE ANNUAL OR PERIODICAL GAINS,
PROFITS, AND INCOME, OF ANY NONRESIDENT ALIEN INDIVIDUAL, OR OF ANY
PARTNERSHIP NOT ENGAGED IN TRADE OR BUSINESS WITHIN THE UNITED STATES
AND NOT HAVING ANY OFFICE OR PLACE OF BUSINESS THEREIN AND COMPOSED IN
WHOLE OR IN PART OF NONRESIDENT ALIENS,  ... DEDUCT AND WITHHOLD FROM
SUCH ANNUAL OR PERIODICAL GAINS, PROFITS, AND INCOME A TAX EQUAL TO 4
PER CENTUM THEREOF:  ..."  48 STAT. 723-724. 

FN7  "SEC.  147.  INFORMATION AT SOURCE. 

"(A)  PAYMENTS OF $1,000 OR MORE.  - ALL PERSONS, IN WHATEVER
CAPACITY ACTING, INCLUDING LESSEES OR MORTGAGORS OF REAL OR PERSONAL
PROPERTY, FIDUCIARIES, AND EMPLOYERS, MAKING PAYMENT TO ANOTHER PERSON,
OF INTEREST, RENT, SALARIES, WAGES, PREMIUMS, ANNUITIES, COMPENSATIONS,
REMUNERATIONS, EMOLUMENTS, OR OTHER FIXED OR DETERMINABLE GAINS,
PROFITS, AND INCOME  ...  OF $1,000 OR MORE IN ANY TAXABLE 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,  ..."  48 STAT.
726. 

TREASURY REGULATION 86, UNDER THE ACT OF 1934, SHOWED AMONG OTHER
THINGS, THAT THIS SECTION APPLIED GENERALLY TO FIXED OR DETERMINABLE
INCOME, THAT ROYALTIES WERE INCLUDED AS FIXED AND DETERMINABLE INCOME
AND THAT INFORMATION AS TO THEM WAS NOT REQUIRED WHEN SUCH ROYALTIES
DID NOT EXCEED THE TAXPAYER'S EXEMPTIONS.  ALSO, SUCH INFORMATION AT
THE SOURCE WAS NOT REQUIRED WHERE THE INCOME HAD BEEN WITHHELD, AT THE
SOURCE, FROM A NONRESIDENT ALIEN INDIVIDUAL AND A REPORT HAD BEEN MADE
TO THAT EFFECT.  SEE, FOR EXAMPLE: 

"ART. 147-1.  ...  ALTHOUGH TO MAKE NECESSARY A RETURN OF INFORMATION
THE INCOME MUST BE FIXED OR DETERMINABLE, IT NEED NOT BE ANNUAL OR
PERIODICAL.  ..." 

"ART. 147-3.  CASES WHERE NO RETURN OF INFORMATION REQUIRED.  -
PAYMENTS OF THE FOLLOWING CHARACTER, ALTHOUGH OVER $1,000, NEED NOT BE
REPORTED IN RETURNS OF INFORMATION  ...  : 

     .         .         .    .         . 

"(H)  PAYMENTS OF SALARIES, RENTS, ROYALTIES, INTEREST (EXCEPT BOND
INTEREST REQUIRED TO BE REPORTED ON OWNERSHIP CERTIFICATES), AND OTHER
FIXED OR DETERMINABLE INCOME AGGREGATING LESS THAN $2,500 MADE TO A
MARRIED INDIVIDUAL; ..." 

"ART. 147-5.  RETURN OF INFORMATION AS TO PAYMENTS TO OTHER THAN
CITIZENS OR RESIDENTS.  - IN THE CASE OF PAYMENTS OF FIXED OR
DETERMINABLE ANNUAL OR PERIODICAL INCOME TO NONRESIDENT ALIENS
(INDIVIDUAL OR FIDUCIARY),  ...  THE RETURNS FILED BY WITHHOLDING
AGENTS ON FORM 1042(REQUIRED BY ART. 143-8) SHALL CONSTITUTE AND BE
TREATED AS RETURNS OF INFORMATION.  (SEE SECTIONS 143 AND 144.)" 

FN8  THIS OPINION WAS RENDERED IN RESPONSE TO A REQUEST TO THE
TREASURY FOR ADVICE AS TO WHETHER CERTAIN PAYMENTS RECEIVED DURING THE
YEARS 1921 TO 1928 BY THE TAXPAYER, A NONRESIDENT ALIEN AUTHOR, WERE
TAXABLE AS INCOME FROM SOURCES WITHIN THE UNITED STATES.  THE PAYMENTS
WERE RECEIVED PURSUANT TO CONTRACTS GRANTING CERTAIN VOLUME, SERIAL AND
MOTION PICTURE RIGHTS IN CONSIDERATION OF STIPULATED ROYALTIES PAYABLE
IN VARIOUS WAYS.  SOME CONTRACTS PRESCRIBED A ROYALTY ON EACH COPY
SOLD, OTHERS A TOTAL STIPULATED SUM, AND, IN AT LEAST ONE CASE, THIS
SUM WAS PAYABLE IN SEVERAL PARTS.  THE OPINION REVIEWED THE PRACTICE OF
MANY YEARS AND GAVE A POSITIVE ANSWER TO GUIDE FUTURE PRACTICE.  THE
ANSWER WAS THAT ALL THESE RECEIPTS WERE TAXABLE INSOFAR AS THEY CAME
FROM SOURCES WITHIN THE UNITED STATES.  THE OPINION CONTAINED THE
FOLLOWING SIGNIFICANT STATEMENTS WHICH INDICATE THE ADMINISTRATIVE
PRACTICE WHICH HAD BEEN APPLIED AND THEREAFTER WAS TO APPLY TO THESE

"THE FACT THAT A PAYMENT IN THE NATURE OF A RENT OR ROYALTY IS IN A
LUMP SUM RATHER THAN SO MUCH PER ANNUM, PER UNIT OF PROPERTY, PER
PERFORMANCE, PER BOOK SOLD, OR A CERTAIN PERCENTAGE OF THE RECEIPTS OR
PROFITS, DOES NOT ALTER THE CHARACTER OF THE PAYMENT AS RENT OR
ROYALTY.  (O.D. 1028, C.B. 5, 83; APPEAL OF J.M. & M.S. BROWNING CO., 6
B.T.A., 914, ACQUIESCENCE C.B. VII-1, 5.)  NOR IS IT MATERIAL WHETHER
THE ROYALTY IS PAID IN ADVANCE.  (APPEAL OF BLOEDEL'S JEWELRY, INC., 2
B.T.A., 611.)  IT IS ACCORDINGLY THE OPINION OF THIS OFFICE THAT THE
PAYMENTS IN QUESTION ARE 'RENTALS OR ROYALTIES FROM  ...  (OR) FOR THE
USE OF OR FOR THE PRIVILEGE OF USING  ... COPYRIGHTS  ...  AND OTHER
LIKE PROPERTY.'  SINCE THE GRANT BY THE TAXPAYER IN EACH INSTANCE IS SO
CLEARLY THE GRANT OF A PARTICULAR RIGHT IN ALL THE RIGHTS CONSTITUTING
THE TAXPAYER'S LITERARY PROPERTY AND COPYRIGHT, THE CONCLUSION IS
OBVIOUS THAT THE GRANT IS A LICENSE AND NOT A SALE.    "THE APPLICABLE
REVENUE ACTS REGARD ROYALTIES FROM AMERICAN COPYRIGHTS (OR FOR THE USE
OF OR FOR THE PRIVILEGE OF USING IN THE UNITED STATES COPYRIGHTS AND
OTHER LIKE PROPERTY) AS INCOME FROM SOURCES WITHIN THE UNITED STATES,
AND ROYALTIES FROM FOREIGN COPYRIGHTS (OR FOR THE USE OF OR FOR THE
PRIVILEGE OF USING WITHOUT THE UNITED STATES COPYRIGHTS AND OTHER LIKE
PROPERTY) AS INCOME FROM SOURCES WITHOUT THE UNITED STATES. 
SUBSTANTIALLY ALL THE INCOME HERE IN QUESTION CONSTITUTES ROYALTIES
FROM, OR FOR THE USE OF, OR FOR THE PRIVILEGE OF USING AMERICAN
COPYRIGHTS."  I.T. 2735, XII-2 CUM. BULL.  131(1933).    FN9  "THE FACT
THAT ONE LUMP SUM WAS RECEIVED FOR THE PRIVILEGE OF USING THE PROPERTY
OF THE AUTHOR INSTEAD OF A SERIES OF PAYMENTS DOES NOT ALTER THE REAL
CHARACTER OF WHAT THE TAXPAYER RECEIVED.  IT WAS PAYMENT FOR THE USE OF
HIS LITERARY PROPERTY FOR THE PURPOSE NAMED AND IN SO FAR AS IT WAS IN
PAYMENT FOR USE IN THE UNITED STATES WAS TAXABLE AS A ROYALTY PAID IN
ADVANCE AND RECEIVED FOR THE GRANTING OF THAT PRIVILEGE.  WHILE THERE
SEEMS TO BE NO DIRECT AUTHORITY FOR THIS VIEW OF THE MEANING OF THE
STATUTE, WE BELIEVE IT CORRECT IN PRINCIPLE AND THE ORDER OF THE BOARD
IN THIS RESPECT IS REVERSED."  ID. AT P. 755.  THIS DECISION
EFFECTIVELY SUPPLEMENTS THE TREASURY BULLETIN OF 1933 AND EMPHASIZES
THE GENERAL LANGUAGE OF THE STATUTE IN TAXING PROCEEDS OF THE TYPE OF
TRANSACTION THAT IS BEFORE US.  IT REVERSED AN INTERMEDIATE HOLDING
MADE BY THE BOARD OF TAX APPEALS IN 1935 IN SABATINI V. COMMISSIONER,
32 B.T.A. 705.  THAT INTERMEDIATE DECISION, ACCORDINGLY, WAS IN THE
PROCESS OF REVIEW WHEN THE REVENUE ACT OF 1936 WAS ENACTED AND,
THEREFORE, IT CANNOT BE ARGUED THAT CONGRESS CARRIED ITS INTERPRETATION
INTO THE REVENUE ACT OF 1936.  IF ANYTHING, THE CONTRARY MIGHT BE
ARGUED AS TO SABATINI V. COMMISSIONER, 98 F.2D 753(C.A.2D CIR.), WHICH
WAS DECIDED BEFORE THE ENACTMENT OF THE INTERNAL REVENUE CODE. 

FN10  "SEC.  211.  TAX ON NONRESIDENT ALIEN INDIVIDUALS. 

"(A)  NO UNITED STATES BUSINESS OR OFFICE.  - THERE SHALL BE LEVIED,
COLLECTED, AND PAID FOR EACH TAXABLE YEAR, IN LIEU OF THE TAX IMPOSED
BY SECTIONS 11 AND 12, UPON THE AMOUNT RECEIVED, BY EVERY NONRESIDENT
ALIEN INDIVIDUAL NOT ENGAGED IN TRADE OR BUSINESS WITHIN THE UNITED
STATES AND NOT HAVING AN OFFICE OR PLACE OF BUSINESS THEREIN, FROM
SOURCES WITHIN THE UNITED STATES AS INTEREST (EXCEPT INTEREST ON
DEPOSITS WITH PERSONS CARRYING ON THE BANKING BUSINESS), DIVIDENDS,
RENTS, SALARIES, WAGES, PREMIUMS, ANNUITIES, COMPENSATIONS,
REMUNERATIONS, EMOLUMENTS, OR OTHER FIXED OR DETERMINABLE ANNUAL OR
PERIODICAL GAINS, PROFITS, AND INCOME, A TAX OF 10 PER CENTUM OF SUCH
AMOUNT,  ..."  49 STAT. 1714. 

FN11  "SEC.  143.  WITHHOLDING OF TAX AT SOURCE. 

     .         .         .         .         . 

"(B)  NONRESIDENT ALIENS.  - ALL PERSONS, IN WHATEVER CAPACITY
ACTING, INCLUDING LESSEES OR MORTGAGORS OF REAL OR PERSONAL PROPERTY,
FIDUCIARIES, EMPLOYERS, AND ALL OFFICERS AND EMPLOYEES OF THE UNITED
STATES, HAVING THE CONTROL, RECEIPT, CUSTODY, DISPOSAL, OR PAYMENT OF
INTEREST (EXCEPT INTEREST ON DEPOSITS WITH PERSONS CARRYING ON THE
BANKING BUSINESS PAID TO PERSONS NOT ENGAGED IN BUSINESS IN THE UNITED
STATES AND NOT HAVING AN OFFICE OR PLACE OF BUSINESS THEREIN),
DIVIDENDS, RENT, SALARIES, WAGES, PREMIUMS, ANNUITIES, COMPENSATIONS,
REMUNERATIONS, EMOLUMENTS, OR OTHER FIXED OR DETERMINABLE ANNUAL OR
PERIODICAL GAINS, PROFITS, AND INCOME (BUT ONLY TO THE EXTENT THAT ANY
OF THE ABOVE ITEMS CONSTITUTES GROSS INCOME FROM SOURCES WITHIN THE
UNITED STATES), OF ANY NONRESIDENT ALIEN INDIVIDUAL, OR OF ANY
PARTNERSHIP NOT ENGAGED IN TRADE OR BUSINESS WITHIN THE UNITED STATES
AND NOT HAVING ANY OFFICE OR PLACE OF BUSINESS THEREIN AND COMPOSED IN
WHOLE OR IN PART OF NONRESIDENT ALIENS, SHALL  ...  DEDUCT AND WITHHOLD
FROM SUCH ANNUAL OR PERIODICAL GAINS, PROFITS, AND INCOME A TAX EQUAL
TO 10 PER CENTUM THEREOF,  ..."  49 STAT. 1700-1701. 

FN12  "NONRESIDENT ALIENS AND FOREIGN CORPORATIONS 

"IT HAS ALSO BEEN NECESSARY TO RECOMMEND SUBSTANTIAL CHANGES IN OUR
PRESENT SYSTEM OF TAXING NONRESIDENT ALIENS AND FOREIGN CORPORATIONS. 
...  IN SECTION 211, IT IS PROPOSED THAT THE TAX ON A NONRESIDENT ALIEN
NOT ENGAGED IN A TRADE OR BUSINESS IN THE UNITED STATES AND NOT HAVING
AN OFFICE OR PLACE OF BUSINESS THEREIN, SHALL BE AT THE RATE OF 10
PERCENT ON HIS GROSS INCOME FROM INTEREST, DIVIDENDS, RENTS, WAGES, AND
SALARIES AND OTHER FIXED AND DETERMINABLE INCOME.  THIS TAX (IN THE
USUAL CASE) IS COLLECTED AT THE SOURCE BY WITHHOLDING AS PROVIDED FOR
IN SECTION 143.  SUCH A NONRESIDENT WILL NOT BE SUBJECT TO THE TAX ON
CAPITAL GAINS, INCLUDING GAINS FROM HEDGING TRANSACTIONS, AS AT
PRESENT, IT HAVING BEEN FOUND IMPOSSIBLE TO EFFECTUALLY COLLECT THIS
LATTER TAX.  IT IS BELIEVED THAT THIS EXEMPTION FROM TAX WILL RESULT IN
ADDITIONAL REVENUE FROM THE TRANSFER TAXES AND FROM THE INCOME TAX IN
THE CASE OF PERSONS CARRYING ON THE BROKERAGE BUSINESS.  ... 

"...  IN THE CASE OF A FOREIGN CORPORATION NOT ENGAGED IN TRADE OR
BUSINESS WITHIN THE UNITED STATES AND NOT HAVING AN OFFICE OR PLACE OF
BUSINESS THEREIN, IT IS PROPOSED TO LEVY A FLAT RATE OF TAX OF 15
PERCENT ON THE GROSS INCOME OF SUCH CORPORATION FROM INTEREST,
DIVIDENDS, RENTS, SALARIES, WAGES, AND OTHER FIXED AND DETERMINABLE
INCOME (NOT INCLUDING CAPITAL GAINS).  THIS TAX IS TO BE COLLECTED IN
THE USUAL CASE BY WITHHOLDING AT THE SOURCE.  ... 

"IT IS BELIEVED THAT THE PROPOSED REVISION OF OUR SYSTEM OF TAXING
NONRESIDENT ALIENS AND FOREIGN CORPORATIONS WILL BE PRODUCTIVE OF
SUBSTANTIAL AMOUNTS OF ADDITIONAL REVENUE, SINCE IT REPLACES A
THEORETICAL SYSTEM IMPRACTICAL OF ADMINISTRATION IN A GREAT NUMBER OF
CASES."  H.R. REP. NO. 2475, 74TH CONG., 2D SESS. 9-10(1936). 

TO THE SAME EFFECT, SEE S. REP. NO. 2156, 74TH CONG., 2D SESS. 21,
23(1936). 

FN13  ON THE FLOOR OF THE HOUSE, REPRESENTATIVE HILL OF WASHINGTON,
OF THE COMMITTEE ON WAYS AND MEANS, SUPPORTING THESE AMENDMENTS, SAID: 

"WE HAVE PLACED A FLAT TAX OF 10 PERCENT ON NONRESIDENT ALIENS, THAT
IS, PEOPLE NOT CITIZENS OF THE UNITED STATES AND NOT RESIDING IN THE
UNITED STATES; AND THIS 10-PERCENT TAX IS WITHHELD AT THE SOURCE.  WE
EXPECT TO GET CONSIDERABLY MORE REVENUE OUT OF BOTH NONRESIDENT ALIENS
AND FOREIGN CORPORATIONS HAVING NO PLACE OF BUSINESS OR NOT ENGAGED IN
TRADE OR BUSINESS IN THIS COUNTRY, THAN WE HAVE BEEN GETTING UNDER THE
PRESENT PLAN, BECAUSE WE ARE GOING TO WITHHOLD IT AT THE SOURCE, AND
NOT TAKE A CHANCE ON THEIR MAKING A REPORT OF IT, OR HAVING TO SEND OUR
REPRESENTATIVES TO SOME FOREIGN COUNTRY TO FIND WHAT THEIR NET INCOME
IS, AND SEEK TO INDUCE THEM TO PAY THEIR TAX."  80 CONG. REC.
6005(1936). 

ON THE FLOOR OF THE SENATE, SENATOR KING OF UTAH, A MEMBER OF THE
FINANCE COMMITTEE AND IN CHARGE OF THE BILL, SAID, IN SUPPORTING THESE
AMENDMENTS: 

"THE HOUSE BILL CHANGES THE METHOD OF TAXING NONRESIDENT ALIENS AND
FOREIGN CORPORATIONS.  A NONRESIDENT ALIEN NOT ENGAGED IN A TRADE OR
BUSINESS IN THE UNITED STATES, OR NOT HAVING AN OFFICE OR PLACE OF
BUSINESS THEREIN, IS TAXED AT A FLAT RATE OF 10 PERCENT ON HIS INCOME
FROM INTEREST, DIVIDENDS, RENTS, WAGES, SALARIES, AND OTHER FIXED OR
DETERMINABLE INCOME, WHICH ARE COLLECTED AT THE SOURCE.  ...  THESE
NONRESIDENT ALIENS ARE EXEMPTED UNDER THE HOUSE BILL FROM THE TAX ON
CAPITAL GAINS, INCLUDING HEDGING TRANSACTIONS, IT BEING FOUND
ADMINISTRATIVELY ALMOST IMPOSSIBLE TO COLLECT THE CAPITAL-GAINS TAX IN
SUCH CASES.  THIS EXEMPTION WILL RESULT IN INCREASED REVENUE FROM
TRANSFER TAXES OR FROM THE INCOME TAX IN THE CASE OF PERSONS CARRYING
ON THE BROKERAGE BUSINESS."  80 CONG. REC. 8650(1936). 

FN14 PARTICULARLY IN THE REVENUE ACT OF 1938, SEC. 211 WAS AMENDED TO
PROVIDE THAT, IF THE AGGREGATE AMOUNT OF A TAXPAYER'S INCOME OF THE
TYPES INCLUDED FROM SOURCES WITHIN THE UNITED STATES WAS MORE THAN
$21,600 DURING A TAXABLE YEAR, THEN THE REGULAR RATE OF TAX IMPOSED BY
SECS. 11 AND 12 BECAME APPLICABLE, SUBJECT TO THE PROVISO THAT IN NO
CASE IT BE LESS THAN 10% OF THE GROSS INCOME SUBJECT TO THE TAX.  SEC.
211(A) AND (C), 52 STAT. 527-528, AND SEE APPENDIX A, INFRA, P. 395. 

FN15  "...  WHILE PAYMENT ORDINARILY IS AT A CERTAIN RATE FOR EACH
ARTICLE OR CERTAIN PER CENT OF THE GROSS SALE, THAT IN ITSELF IS NOT
DETERMINATIVE.  THE PURPOSE FOR WHICH THE PAYMENT IS MADE AND NOT THE
MANNER THEREOF IS THE DETERMINING FACTOR."  COMMISSIONER V. AFFILIATED
ENTERPRISES, 123 F.2D 665, 668(C.A. 10TH CIR.). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

(FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, JOINED BY MR.
JUSTICE MURPHY AND MR. JUSTICE JACKSON, SEE POST, P. 401.) 

                             APPENDIX A. 

MATERIAL PROVISIONS OF SECS. 212(A), 211 AND 119 OF THE REVENUE ACT
OF 1938 AND THE INTERNAL REVENUE CODE: 

"SEC. 212.  GROSS INCOME. 

"(A)  GENERAL RULE.  - IN THE CASE OF A NONRESIDENT ALIEN INDIVIDUAL
GROSS INCOME INCLUDES ONLY THE GROSS INCOME FROM SOURCES WITHIN THE
UNITED STATES."  52 STAT. 528, AND 53 STAT. 76, 26 U.S.C. SEC. 212(A). 

"SEC. 211.  TAX ON NONRESIDENT ALIEN INDIVIDUALS. 

"(A)  NO UNITED STATES BUSINESS OR OFFICE.  - 

"(1)  GENERAL RULE.  - THERE SHALL BE LEVIED, COLLECTED, AND PAID FOR
EACH TAXABLE YEAR, IN LIEU OF THE TAX IMPOSED BY SECTIONS 11 AND
12(NORMAL TAX AND SURTAX IMPOSED GENERALLY UPON INDIVIDUALS AND
APPLICABLE IN THE INSTANT CASE, UNDER PARAGRAPHS (A)(2) AND (C),
BECAUSE THE RESPONDENT'S GROSS INCOME FOR EACH TAXABLE YEAR EXCEEDED
THE ALLOWABLE MAXIMUM THERE SPECIFIED), UPON THE AMOUNT RECEIVED, BY
EVERY NONRESIDENT ALIEN INDIVIDUAL NOT ENGAGED IN TRADE OR BUSINESS
WITHIN THE UNITED STATES AND NOT HAVING AN OFFICE OR PLACE OF BUSINESS
THEREIN, FROM SOURCES WITHIN THE UNITED STATES AS INTEREST (EXCEPT
INTEREST ON DEPOSITS WITH PERSONS CARRYING ON THE BANKING BUSINESS),
DIVIDENDS, RENTS, SALARIES, WAGES, PREMIUMS, ANNUITIES, COMPENSATIONS,
REMUNERATIONS, EMOLUMENTS, OR OTHER FIXED OR DETERMINABLE ANNUAL OR
PERIODICAL GAINS, PROFITS, AND INCOME, A TAX OF 10 PER CENTUM OF SUCH
AMOUNT,  ... 

"(2)  AGGREGATE MORE THAN $21,600.  - THE TAX IMPOSED BY PARAGRAPH
(1) SHALL NOT APPLY TO ANY INDIVIDUAL IF THE AGGREGATE AMOUNT RECEIVED
DURING THE TAXABLE YEAR FROM THE SOURCES THEREIN SPECIFIED IS MORE THAN
$21,600. 

     .         .         .         .         . 

"(C)  NO UNITED STATES BUSINESS OR OFFICE AND GROSS INCOME OF MORE
THAN $21,600.  - A NONRESIDENT ALIEN INDIVIDUAL NOT ENGAGED IN TRADE OR
BUSINESS WITHIN THE UNITED STATES AND NOT HAVING AN OFFICE OR PLACE OF
BUSINESS THEREIN WHO HAS A GROSS INCOME FOR ANY TAXABLE YEAR OF MORE
THAN $21,600 FROM THE SOURCES SPECIFIED IN SUBSECTION (A)(1), SHALL BE
TAXABLE WITHOUT REGARD TO THE PROVISIONS OF SUBSECTION (A)(1), EXCEPT
THAT - 

"(1)  THE GROSS INCOME SHALL INCLUDE ONLY INCOME FROM THE SOURCES
SPECIFIED IN SUBSECTION (A)(1); 

"(2)  THE DEDUCTIONS (OTHER THAN THE SO-CALLED 'CHARITABLE DEDUCTION'
PROVIDED IN SECTION 213(C)) SHALL BE ALLOWED ONLY IF AND TO THE EXTENT
THAT THEY ARE PROPERLY ALLOCABLE TO THE GROSS INCOME FROM THE SOURCES
SPECIFIED IN SUBSECTION (A)(1); 

"(3)  THE AGGREGATE OF THE NORMAL TAX AND SURTAX UNDER SECTIONS 11
AND 12 SHALL, IN NO CASE, BE LESS THAN 10 PER CENTUM OF THE GROSS
INCOME FROM THE SOURCES SPECIFIED IN SUBSECTION (A)(1); AND ..."  52
STAT. 527-528. 

THE ABOVE PROVISIONS OF SECS. 212 AND 211 WERE REENACTED IN THE
INTERNAL REVENUE CODE, 53 STAT. 76, 75-76.  THE TAX RATES WERE CHANGED
BY THE REVENUE ACT OF 1940, C. 419, 54 STAT. 516-517 AS FOLLOWS:  THE
SURTAXES WERE INCREASED GENERALLY IN SEC. 12(B), THE FLAT RATES WERE
INCREASED FROM 10% TO 15% AND THE ALLOWABLE MAXIMUM INCOME SUBJECT TO
THE FLAT RATES WAS RAISED FROM $21,600 TO $24,000 IN SEC. 211(A) AND
(C), 54 STAT. 518.  THE REVENUE ACT OF 1941, C. 412, 55 STAT. 687, 688,
AGAIN INCREASED THE SURTAXES IN SEC. 12(B), INCREASED THE FLAT RATES
FROM 15% TO 27 1/2% AND DECREASED THE ALLOWABLE MAXIMUM INCOME SUBJECT
TO THE FLAT RATES FROM $24,000 TO $23,000 IN SEC. 211(A) AND (C), 55
STAT. 694.  SINCE THEN, THE NORMAL TAX AND SURTAX RATES HAVE BEEN
INCREASED STILL FURTHER, THE FLAT RATE APPLICABLE TO NONRESIDENT ALIEN
INDIVIDUALS HAS BEEN INCREASED FROM 27 1/2% TO 30% AND THE ALLOWABLE
MAXIMUM INCOME TO WHICH THE FLAT RATES APPLY HAS BEEN REDUCED TO
$15,400.  26 U.S.C. SEC. 211(A) AND (C). 

"SEC. 119.  INCOME FROM SOURCES WITHIN UNITED STATES. 

"(A)  GROSS INCOME FROM SOURCES IN UNITED STATES.  - THE FOLLOWING
ITEMS OF GROSS INCOME SHALL BE TREATED AS INCOME FROM SOURCES WITHIN
THE UNITED STATES: 

"(1)  INTEREST.  -  ... 

"(2)  DIVIDENDS.  -  ... 

"(3)  PERSONAL SERVICES.  -  ... 

"(4)  RENTALS AND ROYALTIES.  - RENTALS OR ROYALTIES FROM PROPERTY
LOCATED IN THE UNITED STATES OR FROM ANY INTEREST IN SUCH PROPERTY,
INCLUDING RENTALS OR ROYALTIES FOR THE USE OF OR FOR THE PRIVILEGE OF
USING IN THE UNITED STATES, PATENTS, COPYRIGHTS, SECRET PROCESSES AND
FORMULAS, GOOD WILL, TRADE-MARKS, TRADE BRANDS, FRANCHISES, AND OTHER
LIKE PROPERTY; AND 

"(5)  SALE OF REAL PROPERTY.  - GAINS, PROFITS, AND INCOME FROM THE
SALE OF REAL PROPERTY LOCATED IN THE UNITED STATES. 

"(6)  SALE OF PERSONAL PROPERTY.  - FOR GAINS, PROFITS, AND INCOME
FROM THE SALE OF PERSONAL PROPERTY, SEE SUBSECTION (E). 

"(B)  NET INCOME FROM SOURCES IN UNITED STATES.  - FROM THE ITEMS OF
GROSS INCOME SPECIFIED IN SUBSECTION (A) OF THIS SECTION THERE SHALL BE
DEDUCTED THE EXPENSES, LOSSES, AND OTHER DEDUCTIONS PROPERLY
APPORTIONED OR ALLOCATED THERETO AND A RATABLE PART OF ANY EXPENSES,
LOSSES, OR OTHER DEDUCTIONS WHICH CAN NOT DEFINITELY BE ALLOCATED TO
SOME ITEM OR CLASS OF GROSS INCOME.  THE REMAINDER, IF ANY, SHALL BE
INCLUDED IN FULL AS NET INCOME FROM SOURCES WITHIN THE UNITED STATES. 
"(C)  GROSS INCOME FROM SOURCES WITHOUT UNITED STATES.  - THE
FOLLOWING ITEMS OF GROSS INCOME SHALL BE TREATED AS INCOME FROM SOURCES
WITHOUT THE UNITED STATES: 

"(1)  INTEREST OTHER THAN THAT DERIVED FROM SOURCES WITHIN THE UNITED
STATES AS PROVIDED IN SUBSECTION (A)(1) OF THIS SECTION; 

"(2)  DIVIDENDS OTHER THAN THOSE DERIVED FROM SOURCES WITHIN THE
UNITED STATES AS PROVIDED IN SUBSECTION (A)(2) OF THIS SECTION; 

"(3)  COMPENSATION FOR LABOR OR PERSONAL SERVICES PERFORMED WITHOUT
THE UNITED STATES;    "(4)  RENTALS OR ROYALTIES FROM PROPERTY LOCATED
WITHOUT THE UNITED STATES OR FROM ANY INTEREST IN SUCH PROPERTY,
INCLUDING RENTALS OR ROYALTIES FOR THE USE OF OR FOR THE PRIVILEGE OF
USING WITHOUT THE UNITED STATES, PATENTS, COPYRIGHTS, SECRET PROCESSES
AND FORMULAS, GOOD WILL, TRADE-MARKS, TRADE BRANDS, FRANCHISES, AND
OTHER LIKE PROPERTIES; AND 

"(5)  GAINS, PROFITS, AND INCOME FROM THE SALE OF REAL PROPERTY
LOCATED WITHOUT THE UNITED STATES. 

"(D)  NET INCOME FROM SOURCES WITHOUT UNITED STATES.  -  ... 

"(E)  INCOME FROM SOURCES PARTLY WITHIN AND PARTLY WITHOUT UNITED
STATES.  -  ...  GAINS, PROFITS, AND INCOME FROM - 

"(1)  TRANSPORTATION OR OTHER SERVICES RENDERED PARTLY WITHIN AND
PARTLY WITHOUT THE UNITED STATES, OR 

"(2)  FROM THE SALE OF PERSONAL PROPERTY PRODUCED (IN WHOLE OR IN
PART) BY THE TAXPAYER WITHIN AND SOLD WITHOUT THE UNITED STATES, OR
PRODUCED (IN WHOLE OR IN PART) BY THE TAXPAYER WITHOUT AND SOLD WITHIN
THE UNITED STATES, 

SHALL BE TREATED AS DERIVED PARTLY FROM SOURCES WITHIN AND PARTLY
FROM SOURCES WITHOUT THE UNITED STATES.  GAINS, PROFITS AND INCOME
DERIVED FROM THE PURCHASE OF PERSONAL PROPERTY WITHIN AND ITS SALE
WITHOUT THE UNITED STATES OR FROM THE PURCHASE OF PERSONAL PROPERTY
WITHOUT AND ITS SALE WITHIN THE UNITED STATES, SHALL BE TREATED AS
DERIVED ENTIRELY FROM SOURCES WITHIN THE COUNTRY IN WHICH SOLD,  ... 

"(F)  DEFINITIONS.  - ..."  52 STAT. 503-506, 53 STAT. 53-55, 26
U.S.C. SEC. 119. 

     APPENDIX B.

                    "THE CURTIS PUBLISHING COMPANY

                          INDEPENDENCE SQUARE

                             PHILADELPHIA

              FEBRUARY 22, 1938 

"PAUL R. REYNOLDS, & SON 

599 FIFTH AVENUE 

NEW YORK CITY

                      WE INCLOSE HEREWITH 

OUR CHECK FORTY THOUSAND DOLLARS

  IN PAYMENT FOR 

SERIAL:  THE SILVER COW

      BY P. G. WODEHOUSE                       $40,000.00

                 "IMPORTANT 

"THIS CHECK IS OFFERED AND ACCEPTED WITH THE UNDERSTANDING THAT THE
CURTIS PUBLISHING COMPANY BUYS ALL RIGHTS IN AND OF ALL STORIES AND
SPECIAL ARTICLES APPEARING IN ITS PUBLICATIONS AND WITH THE FURTHER
UNDERSTANDING THAT EVERY NUMBER OF THESE PUBLICATIONS IN WHICH ANY
PORTION THEREOF SHALL APPEAR SHALL BE COPYRIGHTED AT ITS EXPENSE. 
AFTER PUBLICATION IN A CURTIS PERIODICAL IS COMPLETED IT AGREES TO
REASSIGN TO THE AUTHOR OR DEMAND ALL RIGHTS, EXCEPT AMERICAN (INCLUDING
CANADIAN AND SOUTH AMERICAN) SERIAL RIGHTS. 

                "MOTION PICTURE RIGHTS 

"PLEASE NOTE THAT OUR RESERVATION OF SERIAL RIGHTS (WHICH INCLUDES
PUBLICATION IN ONE INSTALLMENT) INCLUDES NEW STORY VERSIONS BASED ON
MOTION-PICTURE OR DRAMATIC SCENARIOS OF SHORT STORIES AND SERIALS THAT
HAVE APPEARED IN CURTIS PUBLICATIONS, AND THAT WE PERMIT THE USE OF
SUCH VERSIONS ONLY UNDER THE FOLLOWING CONDITIONS:  SUCH SYNOPSIS,
SCENARIO, OR NEW STORY VERSION SHALL NOT EXCEED FIFTEEN HUNDRED (1500)
WORDS IN LENGTH WHEN BASED ON A SHORT STORY APPEARING COMPLETE IN ONE
ISSUE, OR FIVE THOUSAND (5000) WORDS WHEN BASED ON A SERIAL APPEARING
IN TWO OR MORE ISSUES, OR A SERIES OF NOT LESS THAN THREE CONNECTED
SHORT STORIES FROM WHICH A SINGLE PICTURE IS TO BE MADE.  SUCH SYNOPSIS
SHALL APPEAR ONLY IN CIRCULAR MATTER, PRESS BOOKS, PRESS NOTICES, TRADE
JOURNALS AND IN MAGAZINES DEVOTED EXCLUSIVELY TO DRAMATIC OR MOTION
PICTURE MATTER, AND SHALL IN NO EVENT APPEAR AS HAVING BEEN WRITTEN BY
THE AUTHOR.  WHEN SELLING MOTION-PICTURE OR DRAMATIC RIGHTS OF MATTER,
YOU MUST NOTIFY THE PRODUCER TO THIS EFFECT, SO THAT THERE MAY BE NO
MISUNDERSTANDING ON HIS PART AND NO INFRINGEMENT OF OUR RIGHTS

                   "THE CURTIS PUBLISHING COMPANY" 

RESPONDENT'S EXHIBIT CONTAINING THE FOREGOING MEMORANDUM AGREEMENT
ALSO INCLUDED THE STATEMENT RENDERED AND THE CHECKS ISSUED BY THE AGENT
TO THE RESPONDENT AND TO THE RESPONDENT'S WIFE FOR $17,100 EACH,
INCLUDING THE FOLLOWING:

                                       "MARCH 3, 1938 

"P. G. WODEHOUSE

                        IN ACCOUNT WITH

                                         PAUL R. REYNOLDS & SON 

"RECEIVED FROM SATURDAY EVENING POST FOR 

ALL AMERICAN, CANADIAN & SOUTH AMERICAN 

SERIAL RIGHTS TO 

THE SILVER COW                                          $40,000. 

COMMISSION 5%                                             2,000. 

                                                      $38,000. 

U.S. INCOME TAX 10%      3,800. 

      $34,200. 

ETHEL WODEHOUSE SHARE 1/2                 17,100. 

DRAFT HEREWITH                      $17,100." 

NO ISSUE IS BEFORE US RELATING TO THE COMPUTATION OF THE AMOUNT
WITHHELD OR THE DIVISION OF THE PAYMENTS BETWEEN THE RESPONDENT AND HIS
WIFE.  IN THE STATEMENTS RENDERED BY THE AGENT AS TO THE PAYMENTS
RECEIVED FOR SERIAL RIGHTS TO "UNCLE FRED IN THE SPRINGTIME," THE
INITIAL AMOUNT WITHHELD WAS 10% OF THE FULL PAYMENT WITHOUT DEDUCTION
OF THE AGENT'S COMMISSION. 

                             APPENDIX C.

                        "HEARST'S INTERNATIONAL

                           COSMOPOLITAN

     HEARST MAGAZINE BUILDING

                FIFTY-SEVENTH STREET AND EIGHTH AVENUE

NEW YORK CITY

    JULY 23, 1941

       JUL 24 1941 

"MR. PAUL R. REYNOLDS, SR. 

599 FIFTH AVENUE 

NEW YORK CITY 

"DEAR MR. REYNOLDS: 

"THIS WILL CONFIRM OUR PURCHASE OF THE ARTICLE ENTITLED MY YEAR
BEHIND BARBED WIRE BY P. G. WODEHOUSE FOR TWO THOUSAND DOLLARS
($2,000.00).  WE ARE BUYING ALL AMERICAN AND CANADIAN SERIAL RIGHTS
(WHICH INCLUDE ALL AMERICAN AND CANADIAN MAGAZINE, DIGEST, PERIODICAL
AND NEWSPAPER PUBLISHING RIGHTS). 

"IT IS UNDERSTOOD AND AGREED THAT THE AUTHOR, AND YOU AS HIS AGENT,
WILL NOT USE OR PERMIT THE USE OF THIS ARTICLE OR ANY PART OR PARTS
THEREOF (1) IN ANY MANNER OR FOR ANY PURPOSE UNTIL THIRTY (30) DAYS
AFTER MAGAZINE PUBLICATION AND (2) IN CONNECTION WITH OR AS THE BASIS
FOR ANY MOTION AND/OR TALKING PICTURES), RADIO BROADCASTS), TELEVISION,
DRAMATIC PRODUCTIONS) OR PUBLIC PERFORMANCES) THROUGHOUT THE WORLD
UNLESS THE WORDS 'BASED ON (OR TAKEN FROM) LITERARY MATERIAL ORIGINALLY
PUBLISHED IN COSMOPOLITAN' IMMEDIATELY PRECEDE OR FOLLOW OR OTHERWISE
ACCOMPANY THE TITLE OF ANY AND ALL SUCH MOTION AND/OR TALKING PICTURES,
RADIO BROADCASTS, TELECASTS, DRAMATIC PRODUCTIONS OR PUBLIC
PERFORMANCES. 

"YOUR SIGNATURE HEREON WILL CONSTITUTE AN AGREEMENT BETWEEN US.

                   "SINCERELY YOURS,

             "FRANCES WHITING

       FRANCES WHITING 

"ACCEPTED: 

............................ 

DATE:  .....................

         "I AM ACCEPTING THE ABOVE LETTER ON THE CONDITION THAT
PUBLICATION OF THIS ARTICLE CAN BE RELEASED IN ENGLAND SIMULTANEOUSLY
WITH PUBLICATION IN COSMOPOLITAN MAGAZINE (DESPITE THE WORDING OF (1)
IN THE SECOND PARAGRAPH); 

WITH THE FURTHER UNDERSTANDING THAT COSMOPOLITAN WILL PERMIT NO
DIGEST OR NEWSPAPER PUBLICATION OF THIS ARTICLE WITHOUT THE CONSENT OF
THE AUTHOR OR HIS AGENT IN WRITING; AND WITH THE FURTHER CONDITION THAT
WE RECEIVE PAYMENT NOT LATER THAN SEPTEMBER 1, 1941." 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE MURPHY AND MR. JUSTICE
JACKSON JOIN, DISSENTING. 

IN THE EXERCISE OF ITS POWER "TO PROMOTE THE PROGRESS OF SCIENCE AND
USEFUL ARTS," CONGRESS, BY GRANTING COPYRIGHTS, HAS CREATED VALUABLE
PROPERTY RIGHTS.  SEE AMERICAN TOBACCO CO. V. WERCKMEISTER, 207 U.S.
284; WHITE-SMITH MUSIC PUB. CO. V. APOLLO CO., 209 U.S. 1, 18, 19. 
BECAUSE OF A CONFLICT BETWEEN TWO CIRCUITS WE MUST NOW FOR THE FIRST
TIME PASS ON THE AMENABILITY TO OUR REVENUE LAW OF PROCEEDS DERIVED
FROM THE TRANSFER OF SOME OF THESE INTERESTS.  A RULING OF THE TREASURY
AND A SUPPORTING DECISION OF THE COURT OF APPEALS FOR THE SECOND
CIRCUIT HAVE MADE TAXABILITY TURN ON THE NOTION THAT A COPYRIGHT IS
INDIVISIBLE.  AS A COROLLARY IT WAS ASSUMED THAT A TRANSFER OF LESS
THAN ALL THE RIGHTS CONFERRED BY SEC. 1 OF THE COPYRIGHT LAW  FN1
MAKES THE TRANSACTION, REGARDLESS OF THE INTENT OF THE PARTIES, A "MERE
LICENSE."  ON THAT GROUND THE GOVERNMENT HAS HERE PRESSED ITS CLAIM OF
TAXABILITY.  THE COURT OF APPEALS FOR THE FOURTH CIRCUIT HAS REJECTED
THE NOTION OF INDIVISIBILITY AND CONSEQUENTLY FOUND LUMP-SUM PAYMENTS
BY A PURCHASER OF THE EXCLUSIVE SERIAL PUBLICATION RIGHTS NOT TO BE
WITHIN SEC. 211(A)(1)(A) OF THE INTERNAL REVENUE CODE.  BY THE PLAIN
IMPLICATION OF ITS SILENCE REGARDING THE BASIS OF THE GOVERNMENT'S
CLAIM AND OF THE DECISIONS THAT HAVE HERETOFORE SUSTAINED IT, THIS
COURT LIKEWISE REJECTS THE NOTION OF INDIVISIBILITY WHILE CLINGING TO A
CONCLUSION HITHERTO ENTIRELY DERIVED FROM IT. 

THE CASE CALLS FOR INQUIRY INTO THE SCHEME OF TAXATION OF AMERICAN
INCOME OF ALIEN COPYRIGHT HOLDERS AS WELL AS REVIEW OF ADMINISTRATIVE
AND JUDICIAL TREATMENT OF SUCH INCOME.  TO PUT THIS DISCUSSION IN THE
PERSPECTIVE OF CONCRETENESS, HOWEVER, THE FACTS OUT OF WHICH THE
CONTROVERSY ARISES SHOULD FIRST BE STATED.  THE TRANSACTION WHICH
PRODUCED THE INCOME FOUND TAXABLE BY THE COMMISSIONER FOR THE YEAR 1941
IS TYPICAL OF THE OTHER TRANSACTIONS THAT YIELDED THE PROCEEDS CLAIMED
TO BE COVERED BY SEC. 211(A)(1)(A) FOR THE VARIOUS TAX YEARS HERE
INVOLVED.  FN2 

WODEHOUSE, THE WRITER OF POPULAR STORIES AND NOVELS, A NONRESIDENT
ALIEN AND "NOT ENGAGED IN TRADE OR BUSINESS WITHIN THE UNITED STATES,"
TRANSFERRED, ON AUGUST 12, 1941, THROUGH HIS AMERICAN LITERARY AGENT,
TO THE CURTIS PUBLISHING COMPANY FOR $40,000 "ALL RIGHTS IN AND OF ALL
STORIES AND SPECIAL ARTICLES APPEARING IN ITS PUBLICATIONS" OF A
CERTAIN NOVEL, ENTITLED, "MONEY IN THE BANK."  THE CONTRACT PROVIDED
THAT, AFTER PUBLICATION IN A CURTIS MAGAZINE, CURTIS WAS TO REASSIGN TO
WODEHOUSE "ON DEMAND ALL RIGHTS, EXCEPT NORTH AMERICAN (INCLUDING
CANADIAN) SERIAL RIGHTS."  THE DOCUMENTS INVOLVED IN EACH OF THE
VARIOUS TRANSACTIONS MAKE CLEAR BEYOND QUESTION THAT CURTIS, AS BUYER,
INTENDED TO SECURE, IF LEGALLY POSSIBLE, AN ABSOLUTE, EXCLUSIVE, AND
IRREVOCABLE TRANSFER OF THE SERIAL RIGHTS FOR ALL OF NORTH AMERICA,
INCLUDING CANADA, AND THAT WODEHOUSE, AS TRANSFEROR, INTENDED TO
TRANSFER, WITH NO DESIRE TO RETAIN ANY CONTROL WHATSOEVER, ALL THE
NORTH AMERICAN SERIAL RIGHTS OF THE NOVEL.  INDEED, TO ASSURE CURTIS
UNQUALIFIED CONTROL, WODEHOUSE AGREED TO EXERCISE OTHER RIGHTS IN A WAY
TO ASSURE CURTIS FULL PROTECTION AND ENJOYMENT IN THE SERIAL
PUBLICATION RIGHTS.  FN3 

THE TAX COURT NEVER QUESTIONED THAT THESE TRANSACTIONS WERE INTENDED
TO BE ABSOLUTE TRANSFERS.  INSTEAD, IT RELIED ON SAX ROHMER, 5 T.C.
183, AFF'D, 153 F.2D 61(C.A.2D CIR.), WHICH HAD HELD THAT AN ASSIGNMENT
OF LESS THAN SUBSTANTIALLY ALL OF THE RIGHTS CONFERRED BY A COPYRIGHT
WAS NECESSARILY ONLY A LICENSE, AND THEREFORE THAT THE PROCEEDS
RECEIVED HAD TO BE REGARDED AS FOR THE USE, RATHER THAN THE SALE, OF
THE COPYRIGHT.  8 T.C. 637.  THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT, UPON FULL CONSIDERATION OF THE ROHMER CASE, REJECTED ITS
NOTION THAT THERE CANNOT BE A SALE OF LESS THAN THE WHOLE, AND, FINDING
NO BARRIER TO THE LAW'S RECOGNITION OF THE TRUE NATURE OF THE
TRANSACTION, NAMELY IRREVOCABLE TRANSFERS OF AN INTEREST IN PERSONAL
PROPERTY, REVERSED THE TAX COURT.  166 F.2D 986(C.A.4TH CIR.)(ONE JUDGE
DISSENTING). 

THIS COURT NOW REVERSES THE COURT OF APPEALS WITHOUT FACING THE
QUESTION WHICH THE TREASURY, THE TAX COURT, AND THE TWO COURTS OF
APPEALS DEEMED CONTROLLING ON EACH OCCASION WHEN THE PROBLEM WAS
PRESENTED.  INSTEAD, THE COURT APPEARS TO BE GUIDED, IN HOWEVER LOW A
KEY THAT CONSIDERATION IS PITCHED, IN CONSTRUING THE APPLICABLE
PROVISIONS OF THE INTERNAL REVENUE CODE BY THE URGENT NEED FOR
REVENUE.  TO LET THIS NEED DETERMINE JUDICIAL CONSTRUCTION OF THE
INTERNAL REVENUE CODE WOULD LARGELY DISPENSE WITH EXPLICITNESS AND
TECHNICAL PRECISION IN REVENUE MEASURES.  "LONG PRIOR PRACTICE" IS
INVOKED TO SUPPORT THE FISCAL CONSIDERATIONS.  THIS RELIANCE IS
ILLUSORY.  IT COMPLETELY IGNORES THAT THE PRACTICE OF WHICH WE HAVE
BEEN ADVISED IS TENUOUS AND, IN ANY EVENT, RESTS SOLELY ON THE NOTION
OF THE INDIVISIBILITY OF COPYRIGHTS.  TO DERIVE THE EXISTENCE OF A
PRACTICE FROM A SINGLE PRONOUNCEMENT BY THE TREASURY, CONSTITUTING NOT
THE FORMULATION OF A FISCAL POLICY BUT EXPRESSING A METAPHYSICAL VIEW
OF COPYRIGHT LAW NOT ADOPTED BY THIS COURT, GIVES A VERY LOOSE MEANING
TO THE WORD "PRACTICE." 

1.  THE COMMISSIONER HERE DETERMINED A DEFICIENCY AND THE TAX COURT
SUSTAINED THE DEFICIENCY UNDER SEC. 211(C)(1).  FN4  THAT SECTION DEALS
WITH GROSS INCOMES OF MORE THAN $24,000 RECEIVED BY NONRESIDENT ALIENS
"NOT ENGAGED IN TRADE OR BUSINESS WITHIN THE UNITED STATES."  26 U.S.C.
SEC. 211(C)(1)(1941).  FOR THE SOURCES OF TAXABLE GROSS INCOME IT
REFERS TO SEC. 211(A)(1)(A), WHICH SPECIFICALLY DEALS WITH THE TAXATION
OF NONRESIDENT ALIENS LIKE WODEHOUSE.  FN5  THE AUTHORITY UNDER WHICH
THE TAX WAS HERE LEVIED PROVIDES:  "THERE SHALL BE LEVIED, COLLECTED,
AND PAID (A TAX ON)  ...  THE AMOUNT RECEIVED  ...  FROM SOURCES WITHIN
THE UNITED STATES AS  ...  OTHER FIXED OR DETERMINABLE ANNUAL OR
PERIODICAL GAINS, PROFITS, AND INCOME ..."  26 U.S.C. SEC.
211(A)(1)(A).    2.  THE COURT DRAWS ON SEC. 119(A)(4) TO SUPPORT THE
TAX.  FN6  BUT PROCEEDS WITHIN SEC. 119(A) CANNOT BE CONSIDERED WITHIN
SEC. 211(A)(1)(A) UNLESS THE DEFINITION OF SEC. 211(A)(1)(A) IS ALSO
SATISFIED, THAT IS, UNLESS THE PROCEEDS ARE "FIXED OR DETERMINABLE
ANNUAL OR PERIODICAL INCOME."  CF. U.S. TREAS. REG. 111, SEC. 29.143
2.  THE SUBSECTIONS OF SEC. 119(A) SERVE MERELY TO DEFINE WHAT PROCEEDS
ARE TO BE DEEMED LOCALIZED IN THE UNITED STATES FOR TAX PURPOSES; THEY
SETTLE ONLY THE GEOGRAPHIC QUESTION; SEC. 119(A) IS NOT A TAX-IMPOSING
PROVISION; OTHER SECTIONS OF THE CODE SERVE THAT FUNCTION. 

3.  AN ANALYSIS OF THE RELEVANT PROVISIONS, IN LIGHT OF THE CHANGES
MADE IN 1936, MAKES THIS PERFECTLY CLEAR.  UNTIL 1936, THE TAX-IMPOSING
PROVISIONS WERE COTERMINOUS WITH THE PROVISIONS OF SEC. 119(A) IN
DEFINING THE TAXABLE GROSS INCOME OF A NONRESIDENT ALIEN.  THIS WAS SO
BECAUSE TAXABILITY WAS LIMITED ONLY BY SEC. 211(A) OF THE REVENUE ACT
OF 1934 WHICH PROVIDED THAT "IN THE CASE OF A NONRESIDENT ALIEN
INDIVIDUAL GROSS INCOME INCLUDES ONLY THE GROSS INCOME FROM SOURCES
WITHIN THE UNITED STATES."  48 STAT. 735.  SUPPLEMENT H OF THE REVENUE
ACT OF 1934 PROVIDED FOR DEDUCTIONS AND CREDITS (SECS. 212-215, 48
STAT. 736-737), BUT THERE WAS NO OTHER PROVISION FURTHER DEFINING OR
LIMITING THE TYPE OF RECEIPTS TO BE INCLUDED IN GROSS INCOME.  SEE 48
STAT. 735-737, 684.  THUS, WHATEVER WAS GROSS INCOME FROM A SOURCE
WITHIN THE UNITED STATES WAS TAXED.  BY THE REVENUE ACT OF 1936,
CONGRESS CHANGED THE SCHEME OF TAXING NONRESIDENT ALIENS.  49 STAT.
1714; SEE 8 MERTENS, THE LAW OF FEDERAL INCOME TAXATION, SEC. 45.16, ET
SEQ. (1942).  FOR THOSE WHO HAVE A PLACE OF BUSINESS IN THE UNITED
STATES IT RETAINED THE SYSTEM OF TAXING ALL PROCEEDS FROM SOURCES
WITHIN THE UNITED STATES.  REVENUE ACT OF 1936, SEC. 211(B), 49 STAT.
1714.  AS TO SUCH ALIENS THE PROVISIONS OF SEC. 119 CONTINUED TO
DETERMINE WHAT RECEIPTS WERE TO BE INCLUDED.  AND THAT HAS REMAINED THE
LAW.  26 U.S.C. SEC. 211(B).  BUT AS TO THOSE WHO ARE "NOT ENGAGED IN
TRADE OR BUSINESS WITHIN THE UNITED STATES," THE ONLY TYPE OF PROCEEDS
TO BE TAXED WERE THOSE WHICH WERE ATTRIBUTABLE TO SOURCES WITHIN THE
UNITED STATES BUT ONLY IF THERE WERE "FIXED OR DETERMINABLE ANNUAL OR
PERIODICAL GAINS, PROFITS, AND INCOME."  SUCH HAS REMAINED THE LAW AND
CONTROLS THIS CASE.  (COMPARE 26 U.S.C. SEC. 211(A)(1)(A), THE
APPLICABLE PROVISION WHEN THE NONRESIDENT ALIEN IS NOT ENGAGED IN TRADE
OR BUSINESS WITHIN THE UNITED STATES, WITH 26 U.S.C. SEC. 211(B), THE
IN THE UNITED STATES.) 

THE SPECIFICALLY DEFINED RECEIPTS - FIXED OR DETERMINABLE ANNUAL OR
PERIODICAL GAINS, PROFITS, OR INCOME - ARE NOT WORDS GIVING RISE TO AN
EXEMPTION, AND AS SUCH TO BE STRICTLY CONSTRUED.  THEY ARE THE
CONTROLLING BASIS FOR TAXATION.  TO BE TAXABLE UNDER SEC. 211(A)(1)(A)
THE PROCEEDS MUST BE FROM SOURCES WITHIN THE UNITED STATES, AS SET
FORTH IN SEC. 119(A), BUT ALSO OF THE NATURE DEFINED IN SEC.
211(A)(1)(A).  SEE 54 YALE L.J. 879, 881-882(1945); 48 COL. L. REV.
967(1948); CF. U.S. TREAS. REG. 111, SEC. 29.143-2.  SINCE THE REACH OF
SEC. 211(A)(1)(A) DOES NOT INCLUDE THE PROCEEDS FROM A SALE, RECEIPTS
FROM A SALE ARE NOT TAXABLE EVEN THOUGH SUCH PROCEEDS ARE FROM A SOURCE
WITHIN THE UNITED STATES AND, AS SUCH, ARE LISTED IN SEC. 119(A)(5)
(6).  THE REGULATIONS HAVE MADE THIS EXPLICIT.  U.S. TREAS. REG. 111,
SECS. 29.211-7, 29.143-2; SEE ALSO S. REP. NO. 2156, 74TH CONG., 2D
SESS., P. 21(1936); H.R. REP. NO. 2475, 74TH CONG., 2D SESS., PP. 9
10(1936). 

THE CHANGES MADE IN 1936 IN THE METHOD OF TAXING INCOME OF A
NONRESIDENT ALIEN "NOT ENGAGED IN TRADE OR BUSINESS WITHIN THE UNITED
STATES" MAKE THE TAXING PROVISIONS COTERMINOUS, NOT WITH SEC. 119(A),
BUT WITH SEC. 143(B), THE SECTION PROVIDING FOR WITHHOLDING TAXES AT
THE SOURCE.  SECTION 143(B) EMPHASIZES THAT PROCEEDS WITHIN SEC. 119(A)
DO NOT COME WITHIN THE SCOPE OF SEC. 143(B) UNLESS THE ADDITIONAL
QUALIFICATION CONTAINED IN SEC. 143(B) IS ALSO MET.  SECTION 143(B)
PROVIDES THAT THE TAX SHOULD BE WITHHELD ON INCOME WHICH IS "FIXED OR
DETERMINABLE ANNUAL OR PERIODICAL GAINS, PROFITS, AND INCOME (BUT ONLY
TO THE EXTENT THAT ANY OF THE ABOVE ITEMS CONSTITUTES GROSS INCOME FROM
SOURCES WITHIN THE UNITED STATES)  ..."  26 U.S.C. SEC. 143(B).  HERE
AGAIN, SINCE "THE INCOME DERIVED FROM THE SALE IN THE UNITED STATES OF
PROPERTY, WHETHER REAL OR PERSONAL, IS NOT FIXED OR DETERMINABLE ANNUAL
OR PERIODICAL INCOME," IT IS NOT INCLUDED.  U.S. TREAS. REG. 111, SEC.
29.143-2.  ONLY BY NOT OBSERVING THE REQUIREMENT THAT THE PROCEEDS MUST
NOT ONLY BE FROM A SOURCE IN THE UNITED STATES BUT ALSO "ANNUAL OR
PERIODICAL" TO BE SUBJECT EITHER TO WITHHOLDING UNDER SEC. 143(B), OR
TO TAXATION UNDER SEC. 211(A)(1)(A), CAN IT BE SAID THAT PROCEEDS WHICH
PRIOR TO 1936 WERE HELD TO BE UNDER SEC. 119(A)(4) ARE IPSO FACTO
WITHIN SEC. 211(A)(1)(A) AFTER 1936 REGARDLESS OF THE NATURE OF THE
REVENUE. 

THEREFORE, INQUIRY WHICH SEEKS TO DISCOVER PRIOR PRACTICE AS AN AID
TO CONSTRUCTION SHOULD PROPERLY ADDRESS ITSELF TO WHETHER SUCH PROCEEDS
WERE WITHHELD UNDER SEC. 143(B) BEFORE 1936.  INQUIRY AS TO SEC. 119(A)
IS COMPLETELY IRRELEVANT BECAUSE IT IS CLEAR THAT BEFORE 1936 MANY
ITEMS WERE INCLUDED IN SEC. 119(A) WHICH WERE NOT WITHHELD UNDER SEC.
143(B).  SINCE 1936 THE ONLY PROCEEDS WHICH ARE TAXED TO A NONRESIDENT
ALIEN NOT ENGAGED IN A TRADE OR BUSINESS IN THE UNITED STATES ARE THOSE
WHICH ARE "FIXED OR DETERMINABLE ANNUAL OR PERIODICAL GAINS, PROFITS,
AND INCOME," WHICH IS THE ONLY TYPE OF PROCEEDS ON WHICH TAXES WERE
WITHHELD AT THE SOURCE BEFORE AS WELL AS AFTER 1936.  THEREFORE
TREASURY PRACTICE REGARDING THE WITHHOLDING REQUIREMENT PRIOR TO THE
1936 LEGISLATION WOULD BE RELEVANT.  THERE IS A TOTAL ABSENCE OF ANY
SHOWING THAT THE TREASURY BEFORE 1936 REGARDED SUCH PROCEEDS SUBJECT TO
WITHHOLDING UNDER SEC. 143(B).  AND IN THE ANALOGOUS SITUATION OF LUMP
SUM PAYMENTS FOR THE ABSOLUTE TRANSFER OF SOME BUT NOT ALL OF THE
EXCLUSIVE RIGHTS CONFERRED BY THE PATENT LAW, COURTS HAVE HELD SUCH
PROCEEDS NOT SUBJECT TO WITHHOLDING UNDER SEC. 143(B).  GENERAL ANILINE
& FILM CORP. V. COMMISSIONER, 139 F.2D 759(C.A.2D CIR.); CF.
COMMISSIONER V. CELANESE CORP., 78 U.S. APP. D.C. 292, 140 F.2D 339. 

THE REGULATIONS, TO BE SURE, GIVE "ROYALTIES" AS AN EXAMPLE OF
PROCEEDS WHICH ARE WITHIN THE PHRASE "FIXED OR DETERMINABLE ANNUAL OR
PERIODICAL GAINS, PROFITS, AND INCOME."  SEE U.S. TREAS. REG. 111, SEC.
29.211-7.  BUT PROCEEDS SOUGHT TO BE BROUGHT WITHIN THE TERM
"ROYALTIES" MUST BE OF A NATURE WHICH JUSTIFIES THAT CLASSIFICATION. 
ROYALTIES ARE WITHIN THE SECTION ONLY BECAUSE THEY MEET THE ABOVE
DESCRIPTION.  IT COMPLETELY IGNORES THE INTRINSIC CHARACTER OF
"ROYALTIES," AND THEREFORE THE BASIS OF INCLUDING THEM IN THE LARGER
CATEGORY OF "FIXED OR DETERMINABLE ANNUAL OR PERIODICAL GAINS, PROFITS,
AND INCOME," TO INFER THAT PROCEEDS WHICH DO NOT MEET THAT DESCRIPTION
BUT RESULT FROM THE USE OF ANOTHER METHOD OF REALIZING ECONOMIC GAIN
FROM A PROPERTY RIGHT - THAT OF SALE RATHER THAN A LICENSE PRODUCING A
RECURRING INCOME - ARE ALSO "ROYALTIES."  SEE 48 COL. L. REV. 967,
969(1948).  BY SUCH REASONING PROCEEDS FROM THE SALE OF A HOUSE WOULD
ALSO BE WITHIN SEC. 211(A)(1)(A) BECAUSE ANOTHER WAY THAT THE OWNER
COULD HAVE REALIZED GAIN ON THE PROPERTY WOULD HAVE BEEN TO HAVE LEASED
IT OVER ITS LIFETIME.  FN7 

FREE JUDICIAL RENDERING OF NEEDLESSLY IMPRECISE LEGISLATION IS
SUFFICIENTLY UNDESIRABLE IN THAT IT ENCOURAGES CONGRESS TO BE
INDIFFERENT TO THE DUTY OF GIVING LAWS ATTAINABLE DEFINITENESS.  HERE
WE ARE DEALING WITH LEGISLATION THAT IS PRECISE.  YET THE COURT CHOOSES
NOT TO GIVE IT EFFECT AND IT DOES SO ON THE BASIS OF FISCAL
CONSIDERATIONS WHICH CONGRESS, BY WHAT IT ENACTED, CHOSE NOT TO WRITE
INTO LAW. 

IT MUST BE REMEMBERED THAT THE PROBLEM HERE IS NOT TO DETERMINE WHAT
IS INCOME IN EITHER A CONSTITUTIONAL OR AN ECONOMIC SENSE.  THE
PROCEEDS FROM THE SALE OF A HOUSE OVER AND ABOVE ITS COST TO THE SELLER
ARE AS MUCH INCOME AS IS A JUDGE'S SALARY.  NOR IS THE PROBLEM ONE OF
DETERMINING WHETHER SOMETHING WHICH IS USUALLY REGARDED AS INCOME IS TO
ESCAPE A TAX BECAUSE THE PARTIES BY AGREEMENT ACT IN SUCH A WAY AS TO
CAUSE THE PROCEEDS TO BE RECEIVED IN A DIFFERENT MANNER.  CF. LYETH V.
HOEY, 305 U.S. 188.  THERE IS NO SUGGESTION THAT THE TRANSACTION AS IT
APPEARS ON THE SURFACE WAS NOT THE TRANSACTION IN TRUTH.  THE FACT THAT
THE INCIDENCES OF INCOME TAXATION MAY HAVE BEEN TAKEN INTO ACCOUNT BY
ARRANGING MATTERS ONE WAY RATHER THAN ANOTHER SO LONG AS THE WAY CHOSEN
WAS THE WAY THE LAW ALLOWS, DOES NOT MAKE A TRANSACTION SOMETHING ELSE
THAN IT TRULY IS - IT DOES NOT TURN A SALE INTO A LICENSE.  HELVERING
V. GREGORY, 69 F.2D 809, 810(C.A.2D CIR.).  THEREFORE, THE PRINCIPLE OF
TAX EVASION IS IRRELEVANT TO THE DISPOSITION OF THIS CASE, EXCEPT ON
THE ASSUMPTION THAT CONGRESS ITSELF EVADED ITS OWN TAX PURPOSES AND
THAT THE COURT MUST CLOSE WHAT CONGRESS LEFT OPEN.  IT IS TAKING TOO
MUCH LIBERTY EVEN WITH TAX PROVISIONS TO READ OUT A DEFINING CLAUSE
THAT CONGRESS HAS WRITTEN IN MERELY BECAUSE CONGRESS PERMITTED
DESIRABLE REVENUE TO ESCAPE THE TAX COLLECTOR'S NET.  THE ONLY JUDICIAL
PROBLEM IS WHETHER THE PROCEEDS CONSTITUTE A TYPE OF INCOME WHICH
CONGRESS HAS DESIGNATED AS TAXABLE.  THAT TYPE MUST HAVE THE
CHARACTERISTIC OF BEING "FIXED OR DETERMINABLE ANNUAL OR PERIODICAL
GAINS, PROFITS, AND INCOME."  A LUMP-SUM PAYMENT FOR AN EXCLUSIVE
PROPERTY RIGHT, TRANSFERABLE AND TRANSFERRED BY THE TAXPAYER, SIMPLY
DOES NOT MEET THAT QUALIFICATION.  UNLESS THERE IS SOMETHING INHERENT
IN THE COPYRIGHT LAW TO PREVENT IT, SUCH A TRANSACTION IS THE FAMILIAR
"SALE OF PERSONAL PROPERTY."  U.S. TREAS. REG. 111, SEC. 29.211-7. 
SURELY IT IS A SALE OF A CAPITAL ASSET.  SEE LEARNED HAND, J., IN
GOLDSMITH V. COMMISSIONER, 143 F.2D 466, 467(C.A.2D CIR.).  AS SUCH IT
IS NOT SUBJECT TO THE TAX.  THE LEGISLATIVE HISTORY LEAVES NO DOUBT ON
THIS POINT.  FN8 

4.  SO FAR IT HAS BEEN ASSUMED THAT THESE PROCEEDS WOULD BE WITHIN
SEC. 119(A)(4).  BUT NEITHER THIS COURT NOR CONGRESS HAS EVER SAID SO;
INDEED NO COURT OTHER THAN THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
AND THE TAX COURT (BUT ONLY AFTER ITS CONTRARY DETERMINATION WAS
REVERSED BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT) HAS SAID SO.
BUT IT IS URGED THAT A "LONG PRIOR PRACTICE" OF INCLUDING UNDER SEC.
119(A)(4) PROCEEDS RECEIVED AS LUMP-SUM PAYMENTS FOR THE ABSOLUTE
TRANSFER OF SOME BUT NOT ALL OF THE RIGHTS CONFERRED BY THE COPYRIGHT
LAW, AND THEREFORE TAXING THEM TO NONRESIDENT ALIENS UNDER THE PRIOR
STATUTE, PREVENTS THIS COURT FROM APPLYING SEC. 211(A)(1)(A) ACCORDING
TO THE FAIR MEANING OF ITS OWN TERMS.  IT IS SUGGESTED THAT, NO MATTER
WHAT CONGRESS HAS WRITTEN ON THE STATUTE BOOKS, IT IS TO BE ASSUMED
THAT CONGRESS WOULD NOT GIVE UP A SOURCE OF REVENUE IT HAD ONCE
TAPPED.  THIS SUGGESTION IS MADE DESPITE THE FACT THAT CONGRESS SAID
THAT IT WAS CHANGING THE METHOD OF TAXING THE INCOME OF NONRESIDENT
ALIENS AND THAT IT ALSO SAID THAT CERTAIN ITEMS, PREVIOUSLY TAXED,
WOULD NOW BE EXEMPT.  S. REP. NO. 2156, 74TH CONG., 2D SESS., P.
21(1936); H.R. REP. NO. 2475, 74TH CONG., 2D SESS., PP. 9-10(1936). 
WHAT IS THIS LONG PRIOR PRACTICE THAT HAS ENCRUSTED THE PHRASE,
"ROYALTIES FOR THE USE OF OR FOR THE PRIVILEGE OF USING IN THE UNITED
STATES, PATENTS, COPYRIGHTS  ...  AND OTHER LIKE PROPERTY," WITH A
MEANING THAT CONTRADICTS ITS OWN TERMS NOT OTHERWISE DEFINED BY
CONGRESS, YET PRECLUDES THIS COURT FROM CONSTRUING IT ACCORDING TO THE
OBVIOUS PURPORT OF FAMILIAR WORDS? 

PART OF THE REVENUE LAWS SINCE 1921.  SEE REVENUE ACT OF 1921, SEC.
217(A)(4), 42 STAT. 244.  SOON AFTER ITS ENACTMENT THE BUREAU RULED
THAT RECEIPTS FROM THE ABSOLUTE TRANSFER BY A NONRESIDENT ALIEN OF THE
RIGHTS TO SERIAL PUBLICATION IN THE UNITED STATES OF CERTAIN LITERARY
WORKS WERE NOT DERIVED FROM A SOURCE IN THE UNITED STATES.  THE REASON
GIVEN WAS THAT THE TRANSACTION DID NOT CONSTITUTE A LICENSE FOR USE,
BUT A SALE.  O.D. 988, 5 CUM. BULL.  117(1921); SEE ALSO I.T. 2169, IV
1 CUM. BULL.  13(1925)(SALE OF MOTION-PICTURE RIGHT TO PLAY DEEMED A
SALE OF A CAPITAL ASSET).  THE RULING PREVAILED THROUGH THE SUBSEQUENT
REENACTMENT OF THE PHRASING IN SEC. 119(A)(4) IN 1924, 1926, 1928, AND
1932, SEE 43 STAT. 273; 44 STAT. 30; 45 STAT. 826, 827; 47 STAT. 208,
209.  IN 1933 THE BUREAU MADE A CONTRARY RULING WHICH EXPRESSLY REVOKED
THE ONE MADE IN 1921.  BUT THE FACTS ON WHICH THE BUREAU TOOK THIS
ACTION ARE IMPORTANT. 

THE TAXPAYER HAD RECEIVED THE INCOME IN QUESTION PURSUANT TO
CONTRACTS WITH A NUMBER OF PUBLISHERS AND PRODUCERS UNDER WHICH HE HAD
GRANTED SERIAL RIGHTS IN BOOKS ALREADY WRITTEN, RESERVING A "STIPULATED
ROYALTY PER COPY SOLD."  THE BUREAU CHARACTERIZED ALL BUT ONE OF THESE
CONTRACTS AS REQUIRING "STIPULATED SUMS  ...  TO BE PAID TO HIM AS
ROYALTIES."  MOREOVER, IN SOME OF THESE CONTRACTS YEARLY LICENSES WERE
GRANTED, RENEWABLE AT THE TAXPAYER'S OPTION, WITH STIPULATED ROYALTIES
PER COPY.  IN ONE CONTRACT A COMPANY WAS GRANTED FIRST AMERICAN AND
CANADIAN SERIAL RIGHTS IN THE TAXPAYER'S EXCLUSIVE OUTPUT OF BOTH LONG
AND SHORT STORIES FOR WHICH THE COMPANY WAS TO PAY A STIPULATED SUM OF
MONEY, AND IN ANOTHER CONTRACT THE TAXPAYER GRANTED MOTION-PICTURE
RIGHTS THROUGHOUT THE WORLD, THE CONSIDERATION TO BE PAID IN
INSTALLMENTS.  THE BUREAU RULED THAT THESE PROCEEDS WERE WITHIN THE
PHRASE  "...  ROYALTIES FROM  ...  (OR) FOR THE USE OF OR FOR THE
PRIVILEGE OF USING IN THE UNITED STATES  ...  COPYRIGHTS  ..."  26
U.S.C. SEC. 119(A)(4).    THE REASONING ON WHICH THIS CONCLUSION WAS
BASED DESERVES ATTENTION.  FN9  THIS IS THE CRUX OF IT: 

"THE TAXPAYER IN THESE CONTRACTS GRANTED THE PUBLISHERS AND PRODUCERS
LICENSES TO USE IN PARTICULAR WAYS HIS LITERARY PROPERTY AND HIS
COPYRIGHT THEREIN, AND EXACTED FROM THEM CERTAIN PAYMENTS FOR THAT
USE.  THESE WERE NOT, AND COULD NOT BE, CONTRACTS OF SALES; THEY WERE
IN FACT CONTRACTS OF LICENSE, AND THE PAYMENTS FOR SUCH LICENSES
CONSTITUTED RENTALS OR ROYALTIES SUBJECT TO TAX AS SUCH.  ... 

"...  SINCE THE GRANT BY THE TAXPAYER IN EACH INSTANCE IS SO CLEARLY
THE GRANT OF A PARTICULAR RIGHT IN ALL THE RIGHTS CONSTITUTING THE
TAXPAYER'S LITERARY PROPERTY AND COPYRIGHT, THE CONCLUSION IS OBVIOUS
THAT THE GRANT IS A LICENSE AND NOT A SALE. 

     .         .         .         .         . 

"IN OFFICE DECISION 988, SUPRA, A GRANT OF ALL RIGHTS OF SERIAL
PUBLICATION IN THE UNITED STATES IN CERTAIN LITERARY WORKS WAS THROUGH
ERROR SAID TO BE A SALE.  SUCH A GRANT COULD ONLY BE A LICENSE.  OFFICE
DECISION 988 IS ACCORDINGLY REVOKED."  I.T. 2735, XII-2, CUM. BULL. 
131, 135(1933). 

THUS IT IS SEEN THAT ON THE BUREAU'S EARLIER CONSTRUCTION THAT THE
COPYRIGHT LAW PERMITTED A SALE, SUCH PROCEEDS WERE EXCLUDED.  O.D. 988,
5 CUM. BULL.  117(1921).  AFTER TWELVE YEARS THE BUREAU DECIDED THAT,
AS A MATTER OF COPYRIGHT LAW AND NOT BY WAY OF FORMULATING A FISCAL
POLICY, THERE COULD BE NO SALE OF SERIAL RIGHTS AND THAT SUCH A
TRANSACTION HAD TO BE TREATED AS A LICENSE, PERIODICALLY PRODUCING
INCOME.  PLAINLY THE BUREAU WAS NOT INTERPRETING TAX LAW BUT COPYRIGHT
LAW.  DEFERENCE NO DOUBT IS DUE TO AN ADMINISTRATIVE BODY'S
INTERPRETATION OF LAW DEALING WITH ITS SPECIALTY - PARTICULARLY TO
INTERPRETATIONS BY THOSE WHOSE TASK IT IS TO ADMINISTER THE REVENUE
LAWS.  BUT THE BUREAU'S EXPERTNESS DOES NOT EXTEND TO THE COPYRIGHT
LAW.  SUCH MATTERS DO NOT INVOLVE THE SUBTLETIES OF TAX CONCEPTS.  THE
DETERMINATION RATHER IS LIKE THAT OF A QUESTION OF COMMON LAW, AND SUCH
QUESTIONS HAVE NEVER BEEN THOUGHT TO BE OF A TYPE AS TO WHICH ANY
DEGREE OF FINALITY WAS GIVEN TO THE ADMINISTRATIVE VIEW.  CF. TRUST OF
BINGHAM V. COMMISSIONER, 325 U.S. 365, 377, 381.  UNDER THESE
CIRCUMSTANCES THE BUREAU'S DETERMINATION HAS LITTLE WEIGHT, AND
CERTAINLY DOES NOT BAR THIS COURT FROM PROPERLY CONSTRUING THE
COPYRIGHT LAW, ESPECIALLY WHERE CONGRESS HAD THOROUGHLY OVERHAULED THE
TAX PROVISIONS PERTAINING TO NON-RESIDENT ALIENS LESS THAN THREE YEARS
AFTER THE BUREAU RULING WAS MADE.  AS ONE SWALLOW DOES NOT MAKE A
SUMMER, THIS ONE RULING HARDLY ESTABLISHES A PRACTICE, AND CERTAINLY
DOES NOT DISCLOSE A CONSISTENCY WHICH DESERVES TO BE CALLED "LONG." 

BALANCED AGAINST THIS ONE BUREAU DECISION, SUCH AS IT IS, IS THE
SIGNIFICANT FACT THAT AT THE CRUCIAL TIME - IN 1936, WHEN CONGRESS
DEVISED THE PRESENT SCHEME OF TAXING NONRESIDENT ALIENS - A MORE
AUTHORITATIVE DECISION WAS EXPLICITLY TO THE CONTRARY.  THIS WAS THE
HOLDING OF THE BOARD OF TAX APPEALS IN RAFAEL SABATINI, 32 B.T.A. 705. 
FN10  IN THE SABATINI CASE THE BOARD HELD THAT THE LUMP-SUM PAYMENTS
RECEIVED FOR EXCLUSIVE WORLD MOTION-PICTURE RIGHTS WERE NOT WITHIN SEC.
119(A)(4).  ABOUT SUCH PROCEEDS IT SAID: 

"THE SITUATION RESPECTING THE GRANTING OF MOTION PICTURE RIGHTS IS
QUITE DIFFERENT FROM THE OTHER RIGHTS ABOVE DISCUSSED.  IN NONE OF THE
MOTION PICTURE CONTRACTS DID PETITIONER OBTAIN ANY INCOME FROM THE
REPRODUCTION AND SALE OR OTHER USE OF HIS WRITINGS IN THE UNITED STATES
AS IN THE CASE OF THE HOUGHTON MIFFLIN CO. AND WAGNER CONTRACTS.  HERE
THE GRANTING OF RIGHTS WAS MADE IN CONSIDERATION OF A LUMP SUM.  THE
SALE OF THESE RIGHTS TOOK PLACE IN ENGLAND (CITING A CASE), AND THERE
WAS NO SUBSEQUENT INCOME IN THE NATURE OF RENTS OR ROYALTIES FROM
SOURCES WITHIN THE UNITED STATES.  WE ARE ACCORDINGLY OF THE OPINION
THAT THE LUMP SUMS RECEIVED BY PETITIONER FOR THE MOTION PICTURE RIGHTS
DO NOT COME WITHIN THE STATUTORY DEFINITION OF INCOME FROM SOURCES
WITHIN THE UNITED STATES AND ARE NOT TAXABLE INCOME."  RAFAEL SABATINI,
32 B.T.A. 705, 712-13(1935), REVERSED ON THIS POINT, 98 F.2D 753,
755(C.A.2D CIR. (1938)).  FN11 

THUS AT THE TIME OF THE ADOPTION OF THE PRESENT SEC. 211(A)(1)(A)
THIS WAS THE AUTHORITATIVE ADMINISTRATIVE RULING AS TO SEC. 119(A)(4). 
IT IS NOT SUGGESTED THAT KNOWLEDGE OF THIS RULING MUST BE ATTRIBUTED TO
CONGRESS, BUT THIS RULING REFUTES THE ASSUMPTION THAT THERE WAS A
SETTLED PRACTICE THE OTHER WAY.  TO THE EXTENT THAT IT COULD BE
CONSIDERED SETTLED, IT WAS CONTRARY TO THE COURT'S ACCOUNT OF IT.
FINALLY IT SHOWS AT LEAST THAT WHAT ADMINISTRATIVE PRACTICE THERE WAS
COULD NOT BE CONSIDERED SETTLED. 

AFTER THE BOARD WAS REVERSED IN THE SABATINI CASE, IT OF COURSE
FOLLOWED THE DECISION OF THE COURT OF APPEALS.  THE PASSAGE OF THE
INTERNAL REVENUE CODE, INCLUDING SEC. 211(A)(1)(A), IS HARDLY A GROUND
FOR IMPLYING LEGISLATIVE ADOPTION OF THE CONSTRUCTION PLACED ON SEC.
119(A)(4) BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT.  HELVERING V.
HALLOCK, 309 U.S. 106, 120-21, N. 7.  WHEN THE ENTIRELY DISTINCT
PROBLEM INVOLVED IN SEC. 211(A)(1)(A) CAME BEFORE THE COURT OF APPEALS
FOR THE SECOND CIRCUIT, IT BASED ITS DECISION ON THE DETERMINATION THAT
THE PROCEEDS WERE FOR THE USE OF THE COPYRIGHT RATHER THAN A SALE. 
FN12  THAT DECISION, LIKE THE SABATINI CASE, WAS BASED PRIMARILY ON THE
DOCTRINE OF THE INDIVISIBILITY OF A COPYRIGHT.  FN13  WHEN THAT
DOCTRINE IS REJECTED, IT HAS BEEN HELD TO FOLLOW, AS WE HAVE SEEN, THAT
THE PROCEEDS ARE NOT INCLUDED.  THAT WAS THE BASIS OF DECISION IN THE
FOURTH CIRCUIT, NOW UNDER REVIEW.  MOREOVER, THE COURT OF APPEALS FOR
THE SECOND CIRCUIT HAS REACHED A RESULT CONTRARY TO ITS COPYRIGHT CASES
WHEN DEALING WITH THE PROCEEDS FROM THE TRANSFER OF SOME BUT NOT ALL OF
THE RIGHTS CONFERRED BY THE PATENT STATUTE.  FN14  IT DID SO DESPITE
THE FACT THAT THE TERM "ROYALTIES" INCLUDES PROCEEDS FOR THE USE OF
PATENTS, 26 U.S.C. SEC. 119(A)(4), AND THAT, AS WILL BE SEEN, THE
THEORY OF THE INDIVISIBILITY OF A COPYRIGHT HAD ITS GENESIS IN A
DOCTRINE FIRST APPLIED IN THE PATENT FIELD. 

5.  THUS WE ARE BROUGHT TO THE QUESTION WHICH THE TREASURY, THE
COURTS AND THE PARTIES HERE HAVE REGARDED AS DETERMINATIVE OF THIS
CONTROVERSY:  MAY SERIAL RIGHTS UNDER A COPYRIGHT BE SOLD IN LAW AS
THEY CONSTANTLY ARE SOLD IN THE LITERARY MARKET?  SPECIFICALLY, IS
THERE SOME INHERENT OBSTACLE OF LAW WHICH PRECLUDES THE SALE OF SUCH
SERIAL RIGHTS FROM HAVING THE USUAL INCIDENTS OF A COMMERCIAL SALE?  IF
IT WERE IMPOSSIBLE TO MAKE A SALE, THEN THE PROCEEDS ARGUABLY ARE
"ROYALTIES" BECAUSE IN THAT EVENT THE TRANSFER CAN HAVE BEEN ONLY FOR
THE USE.  THERE WOULD STILL REMAIN THE DIFFICULTY OF GETTING THE LUMP
SUM PAYMENTS WITHIN THE REASONABLE MEANING OF SEC. 211(A)(1)(A).  FOR,
IT IS FAIR TO RECALL, SEC. 119(A)(4) WOULD ONLY DETERMINE WHETHER THE
PAYMENT IS FROM A SOURCE WITHIN THE UNITED STATES, NOT WHETHER IT IS
TAXABLE.  THERE WOULD BE THE FURTHER DIFFICULTY OF CALLING A PAYMENT A
"ROYALTY" WHEN ITS AMOUNT BEARS ONLY THAT RELATION TO THE FUTURE
PROCEEDS OBTAINED BY THE TRANSFEREE IN EXPLOITING THE LITERARY PRODUCT
AS WOULD BE REFLECTED IN THE PURCHASE PRICE OF ANY INCOME-PRODUCING
PROPERTY.  IF, ON THE OTHER HAND, THE VALUABLE RIGHT THAT, COMMERCIALLY
SPEAKING, WAS IN FACT SOLD, MAY AS A MATTER OF LAW ALSO BE TREATED AS A
SALE, THE PROCEEDS WOULD NOT BE INCLUDED.  THIS CONCLUSION, DERIVED
FROM A READING OF SEC. 211(A)(1)(A), IS MADE EXPLICIT BY THE
REGULATIONS AND THE HOUSE AND SENATE REPORTS.  SEE ANTE, PP. 410-411. 

THE NOTION THAT THE ATTRIBUTES OF LITERARY PROPERTY ARE BY NATURE
INDIVISIBLE AND THEREFORE INCAPABLE OF BEING SOLD SEPARATELY, IS
DERIVED FROM A MISAPPLICATION BY LOWER COURTS OF TWO EARLY CASES IN
THIS COURT.  THESE WERE CONCERNED WITH THE RIGHT OF THE TRANSFEREE OF
LESS THAN ALL THE RIGHTS CONFERRED BY A PATENT TO SUE AN INFRINGER. 
THE INHERENT NATURE OF THE INTERESTS IN INTELLECTUAL PROPERTY AND THEIR
COMMERCIAL NEGOTIABILITY WERE NOT INVOLVED.  THE COURT DETERMINED THE
PROCEDURAL PROBLEM BEFORE IT SO THAT THE INFRINGER WOULD NOT "BE
HARASSED BY A MULTIPLICITY OF SUITS INSTEAD OF ONE," AND WOULD BE NOT
SUBJECTED TO "SUCCESSIVE RECOVERIES OF DAMAGES BY DIFFERENT PERSONS
HOLDING DIFFERENT PORTIONS OF THE PATENT RIGHT IN THE SAME PLACE." 
GAYLER V. WILDER, 10 HOW.  477, 494-95(U.S. 1850); WATERMAN V.
MACKENZIE, 138 U.S. 252, 255.  BUT IN ITS BEARING ON THE PROCEDURAL
POINT, ONE OF THESE CASES RECOGNIZED THE SALEABILITY OF LESS THAN ALL
OF THE PATENTED RIGHTS SO LONG AS THE TRANSFER CONSISTED OF AT LEAST
ONE OF THE THREE RIGHTS SEPARATELY LISTED IN THE PATENT STATUTE. 
WATERMAN V. MACKENZIE, SUPRA. 

WE THUS FIND SCANT ILLUMINATION OF THE INTRINSIC AND LEGAL NATURE OF
PROPERTY RIGHTS IN A COPYRIGHT IN THE PROCEDURAL ANALYSIS OF THESE
CASES.  KEENER INSIGHT INTO SUCH RIGHTS HAS BEEN GIVEN BY MR. JUSTICE
HOLMES IN A CASE INVOLVING SUBSTANTIVE QUESTIONS IN THE LAW OF
COPYRIGHTS: 

"THE NOTION OF PROPERTY STARTS, I SUPPOSE, FROM CONFIRMED POSSESSION
OF A TANGIBLE OBJECT AND CONSISTS IN THE RIGHT TO EXCLUDE OTHERS FROM
INTERFERENCE WITH THE MORE OR LESS FREE DOING WITH IT AS ONE WILLS. 
BUT IN COPYRIGHT PROPERTY HAS REACHED A MORE ABSTRACT EXPRESSION.  THE
RIGHT TO EXCLUDE IS NOT DIRECTED TO AN OBJECT IN POSSESSION OR OWNED,
BUT IS IN VACUO, SO TO SPEAK.  IT RESTRAINS THE SPONTANEITY OF MEN
WHERE BUT FOR IT THERE WOULD BE NOTHING OF ANY KIND TO HINDER THEIR
DOING AS THEY SAW FIT.  IT IS A PROHIBITION OF CONDUCT REMOTE FROM THE
PERSONS OR TANGIBLES OF THE PARTY HAVING THE RIGHT.  IT MAY BE
INFRINGED A THOUSAND MILES FROM THE OWNER AND WITHOUT HIS EVER BECOMING
AWARE OF THE WRONG.  IT IS A RIGHT WHICH COULD NOT BE RECOGNIZED OR
ENDURED FOR MORE THAN A LIMITED TIME, AND THEREFORE, I MAY REMARK IN
PASSING, IT IS ONE WHICH HARDLY CAN BE CONCEIVED EXCEPT AS A PRODUCT OF
STATUTE, AS THE AUTHORITIES NOW AGREE."  WHITE-SMITH MUSIC CO. V.
APOLLO CO., 209 U.S. 1, 18, 19; SEE ALSO LEARNED HAND, J., IN PHOTO
DRAMA MOTION PICTURE CO. V. SOCIAL UPLIFT FILM CORP., 213 F. 374,
378(S.D.N.Y.). 

THE "RIGHT TO EXCLUDE OTHERS FROM INTERFERENCE WITH THE MORE OR LESS
FREE DOING WITH IT AS ONE WILLS" IS PRECISELY THE RIGHT THAT WODEHOUSE
TRANSFERRED TO CURTIS.  TO THE EXTENT THAT THE COPYRIGHT LAW GAVE
WODEHOUSE PROTECTION IN THE UNITED STATES, HE TRANSFERRED ALL HE HAD IN
PROPERTY OF CONSIDERABLE VALUE - THE SERIAL RIGHTS IN HIS NOVELS - AND
CURTIS ACQUIRED ALL OF IT. FOR THE DURATION OF THE MONOPOLY GRANTED BY
THE COPYRIGHT LAW, CURTIS COULD ASSERT THE MONOPOLY AGAINST THE WHOLE
WORLD, INCLUDING WODEHOUSE HIMSELF. 

NOTHING IN THE LAW OF COPYRIGHTS BARS OR LIMITS SALE OF ANY ONE OF
THE NUMEROUS EXCLUSIVE RIGHTS CONFERRED BY THE VARIOUS SUBDIVISIONS OF
SEC. 1.  CONGRESS HAS NOT DISALLOWED SUCH SALES AND NOTHING IN THE DUE
ENFORCEMENT OF THE COPYRIGHT LAW SUGGESTS THEIR DISALLOWANCE.  QUITE
THE CONTRARY.  SEE II LADAS, THE INTERNATIONAL PROTECTION OF LITERARY
AND ARTISTIC PROPERTY, PP. 775-792(1938).  THE SCHEME AND DETAILS OF
THE COPYRIGHT LEGISLATION MANIFEST A SEPARATE TREATMENT OF THE VARIOUS
EXCLUSIVE RIGHTS CONFERRED BY THE STATUTE.  61 STAT. 652, 17 U.S.C.
SECS. 1 ET SEQ. IT SEGREGATES THESE RIGHTS INTO SEPARATELY NUMBERED
PARAGRAPHS.  FN15  IN EACH PARAGRAPH THERE IS LISTED, IN THE
ALTERNATIVE, A MORE DETAILED SUBDIVISION OF THE VARIOUS RIGHTS.  EACH
OF THESE RIGHTS IS SUBSTANTIAL AND EXISTS SEPARATELY FROM THE OTHERS,
FN16  AND HAS OF COURSE BEEN CONSIDERED A PROPERTY RIGHT.  SEE PHOTO
DRAMA MOTION PICTURE CO. V. SOCIAL UPLIFT FILM CORP., 213 F. 374,
377(S.D.N.Y.); SEE FULDA, COPYRIGHT ASSIGNMENTS AND THE CAPITAL GAINS
TAX, 58 YALE L.J. 245, 256(1949).  MOREOVER, THE COPYRIGHT OFFICE WILL
RECORD THESE PARTIAL ASSIGNMENTS, THUS PROTECTING THE TRANSFEREE AND
THEREBY INCREASING THE MARKETABILITY OF THE SEPARATE RIGHTS.  61 STAT.
652, 17 U.S.C. SEC. 30; SEE PHOTO DRAMA MOTION PICTURE CO. V. SOCIAL
UPLIFT FILM CORP., 213 F. 374, 376-377; SEE II LADAS, THE INTERNATIONAL
PROTECTION OF LITERARY AND ARTISTIC PROPERTY, P. 802(1938). 

ONLY THE OTHER DAY THE HOUSE OF LORDS, DEALING WITH A SIMILAR
COPYRIGHT LAW, HELD THAT THE SUMS RECEIVED FROM THE TRANSFER OF THE
MOTION-PICTURE RIGHTS IN A NOVEL WERE PROCEEDS FROM A SALE OF PROPERTY
RATHER THAN A LICENSE AND THEREFORE NOT TAXABLE AS "ANNUAL PROFITS OR
GAINS."  WITHERS V. NETHERSOLE, (1948) 1 ALL E.R. 400.  THERE WAS
THERE, AS HERE, THE NEED TO DETERMINE IF THE PROCEEDS WERE FROM A
SALE.  THE TAXPAYER HAD TRANSFERRED FOR TEN YEARS "THE SOLE AND
EXCLUSIVE MOTION PICTURE RIGHTS THROUGHOUT THE WORLD."  THE HOUSE OF
LORDS HELD THAT THE PROCEEDS WERE NOT "ANNUAL PROFITS OR GAINS" SINCE
THE TRANSACTION WAS AN OUTRIGHT SALE, NOT A LICENSE TO USE THE
COPYRIGHT.  THIS PORTION OF THE LATE LORD UTHWATT'S JUDGMENT IS
ESPECIALLY PERTINENT: 

"THE FACT THAT THE SAME COMMERCIAL RESULT AS THAT PRODUCED BY THE
ASSIGNMENT MIGHT EQUALLY WELL HAVE BEEN ACHIEVED BY AN APPROPRIATELY
WORDED LICENCE IS IRRELEVANT.  IT IS IRRELEVANT THAT THE CONSIDERATION
MAY BE ASSUMED TO REPRESENT THE VALUE OF THE WHOLE COPYRIGHT SO FAR AS
IT RELATES TO MOTION PICTURES FOR A PERIOD OF YEARS, BUT THE
CONSIDERATION WAS PAID, NOT IN RESPECT OF THE TEMPORARY USE OF
ANOTHER'S PROPERTY, BUT FOR THE PURCHASE OF PROPERTY WITH A LIMITED
LIFE.  THE TAXPAYER MAY HAVE EXPLOITED HER PROPERTY, BUT SHE DID SO
ONLY BY DIVIDING IT AND SELLING PART OF IT.  ...  THE RELEVANT FACT IS
THAT AN OWNER OF AN ASSET, ENTITLED BY LAW TO DIVIDE IT INTO TWO
DISTINCT ASSETS, HAS DONE SO BY SELLING ONE OF THOSE ASSETS FOR AN
AGREED CONSIDERATION PAYABLE IN A LUMP SUM.  A SALE, NOT IN THE WAY OF
TRADE, OF AN ASSET DOES NOT ATTRACT TAX ON THE CONSIDERATION.  WHATEVER
ELSE COMES WITHIN THE AMBIT OF ANNUAL PROFITS AND GAINS, THE
CONSIDERATION RECEIVED BY THE TAXPAYER DOES NOT."  WITHERS V.
NETHERSOLE, (1948) 1 ALL E.R. 400, 405.    I AM NOT SUGGESTING THAT THE
DECISION OF THE HOUSE OF LORDS REQUIRES OUR CONCURRENCE.  TO PASS IT
OVER IN SILENCE, HOWEVER, IS NOT TO ANSWER IT. 

ANOTHER CASE LIKEWISE DESERVES ATTENTION.  IN THE SECOND CIRCUIT,
INTERESTINGLY ENOUGH, IT WAS HELD THAT A TRANSFER OF EXCLUSIVE MOTION
PICTURE RIGHTS WAS "A SALE" OF A "CAPITAL ASSET" FOR THE PURPOSE OF
SEC. 117.  GOLDSMITH V. COMMISSIONER, 143 F.2D 466(C.A.2D CIR.).  BUT
IF THE TRANSFER WAS A SALE OF A CAPITAL ASSET, IT COULD NOT ALSO HAVE
BEEN WITHIN SEC. 211(A)(1)(A).  SEE S. REP. NO. 2156, 74TH CONG., 2D
SESS., P. 21(1936); H.R. REP. NO. 2475, 74TH CONG., 2D SESS., PP. 9
10(1936). 

TO TREAT THE TRANSFER OF ANY ONE OF THE VARIOUS RIGHTS CONFERRED BY
THE COPYRIGHT LAW AS A SALE WOULD ACCORD NOT ONLY WITH ANALYSIS OF
THEIR ESSENTIAL CHARACTER AND THE SCHEME OF THE COPYRIGHT LAW, BUT WITH
THE WAY THESE RIGHTS ARE TREATED BY AUTHORS AND PURVEYORS OF PRODUCTS
OF THE MIND FOR WHOSE PROTECTION THE COPYRIGHT LAW WAS DESIGNED BECAUSE
OF THE BELIEF THAT THE INTERESTS OF SOCIETY WOULD BE FURTHERED.  THE
VARIOUS EXCLUSIVE RIGHTS HAVE DIFFERENT ATTRIBUTES AND THEREFORE
DIFFERENT SIGNIFICANCE.  FOR THAT REASON THEY MAY BE SOLD SEPARATELY
AND FORM THE BASIS FOR A NEW COPYRIGHT.  THE AUTHOR "COULD SELL
SEPARATELY THE RIGHT TO DRAMATIZE AND THE RIGHT TO MAKE A MOVING
PICTURE PLAY."  PHOTO DRAMA MOTION PICTURE CO. V. SOCIAL UPLIFT FILM
CORP., 213 F. 374, 377(S.D.N.Y.), AFF'D, 220 F. 448.  SEE AS TO THE
COMMERCIAL PRACTICE, FULDA, COPYRIGHT ASSIGNMENTS AND THE CAPITAL GAINS
TAX, 58 YALE L.J. 245, 253-54(1949); SEE ALSO LADAS, THE INTERNATIONAL
PROTECTION OF LITERARY AND ARTISTIC PROPERTY, PASSIM (1938). 

THUS IT WOULD SEEM AS A MATTER OF LEGAL DOCTRINE THAT WHERE A PERSON
TRANSFERS ABSOLUTELY TO ANOTHER, UNDER TERMS OF PAYMENT WHICH DO NOT
DEPEND ON FUTURE USE BY THE TRANSFEREE, A DISTINCT RIGHT CONFERRED BY
THE COPYRIGHT LAW GRANTING THE TRANSFEREE A MONOPOLY IN ALL THE
TERRITORY TO WHICH THE COPYRIGHT LAW ITSELF EXTENDS, LEGAL DOCTRINE
SHOULD REFLECT BUSINESS PRACTICE IN RECOGNIZING THAT THE PROCEEDS ARE
FROM "THE SALE OF PERSONAL PROPERTY," RATHER THAN AMOUNTS RECEIVED AS
"FIXED OR DETERMINABLE ANNUAL OR PERIODICAL GAINS, PROFITS, AND
INCOME." 

IT IS ARGUED THAT CONGRESS DOUBTLESS INTENDED TO TAX AN ALIEN AUTHOR
FOR THE PROCEEDS OF A SALE OF SERIAL RIGHTS, BECAUSE SUCH PROCEEDS ARE
TAXABLE TO AN AMERICAN AUTHOR.  BY THIS MODE OF REASONING THE COURT
OUGHT TO HOLD THAT SINCE AN AMERICAN AUTHOR IS TAXED WHEN HE SELLS ALL
HIS RIGHTS, THE PROCEEDS DERIVED BY AN ALIEN AUTHOR FROM THE SALE OF
ALL HIS RIGHTS IN THIS COUNTRY ARE ALSO TAXABLE FOR THAT IS A MUCH
LARGER SOURCE OF POTENTIAL REVENUE.  YET CONGRESS HAS CHOSEN NOT TO TAX
THE ALIEN AUTHOR FOR SUCH LARGER INCOME THAN IS RECEIVED FROM THE SALE
MERELY OF SERIAL RIGHTS, ALTHOUGH THE NATIVE AUTHOR IS SO TAXED.  IT IS
FOR CONGRESS TO MAKE DIFFERENTIATIONS BETWEEN ALIEN AND AMERICAN
AUTHORS AND WE SHOULD RESPECT THE DIFFERENTIATIONS CONGRESS HAS MADE
FOR THE SALE BOTH OF SERIAL AND TOTAL RIGHTS AS BETWEEN ALIEN AND
AMERICAN AUTHORS.  THE NEED FOR REVENUE IS NO JUSTIFICATION FOR WARPING
THE PROVISIONS OF THE 1936 LEGISLATION TO DENY IMMUNITY FROM TAXATION
TO A NONRESIDENT ALIEN AUTHOR FOR THE ENTIRE TRANSFER OF SOME OF THE
PROPERTY INTERESTS EXPLICITLY CONFERRED BY SEC. 1, PARTICULARLY IN VIEW
OF THE FACT THAT CONGRESS KNOWLINGLY CHOSE TO LEAVE UNTOUCHED THE MORE
SIZEABLE SOURCE OF REVENUE AVAILABLE WHERE THE NONRESIDENT ALIEN SELLS
ALL THE RIGHTS CONFERRED BY SEC. 1.  WODEHOUSE MADE AN ABSOLUTE
TRANSFER OF SOME OF THOSE RIGHTS.  HE DID NOT RECEIVE ROYALTIES BUT
INSTEAD GAVE UP THAT CHANCE IN RETURN FOR A LUMP SUM, JUST AS THE
SELLER OF A HOUSE GIVES UP THE RIGHT TO RECEIVE RENT IN RETURN FOR THE
PURCHASE PRICE.  THAT TRANSACTION CAN ONLY BE REGARDED AS A SALE.  AS
THE REVENUE LAWS NOW STAND, IT WAS NONTAXABLE. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

FN1  61 STAT. 652; 17 U.S.C. SEC. 1. 

FN2  THIS PARTICULAR YEAR WAS SELECTED BECAUSE THE INTERNAL REVENUE
CODE WAS THEN IN EFFECT, AND THIS MAKES REFERENCE TO THE APPLICABLE
STATUTORY PROVISIONS EASIER.  IN 1941 WODEHOUSE ALSO SOLD PUBLICATION
RIGHTS IN AN ARTICLE TO HEARST'S INTERNATIONAL COSMOPOLITAN CO. THE
TRANSACTION WAS, IN EFFECT, SIMILAR TO THE ONE DESCRIBED IN THE TEXT. 

FN3  THE MEMORANDUM OF ACCEPTANCE PROVIDED IN PART: 

"PLEASE NOTE THAT OUR RESERVATION OF SERIAL RIGHTS (WHICH INCLUDES
PUBLICATION IN ONE INSTALLMENT) INCLUDES NEW STORY VERSIONS BASED ON
MOTION-PICTURE OR DRAMATIC SCENARIOS OF SHORT STORIES AND SERIALS THAT
HAVE APPEARED IN CURTIS PUBLICATIONS, AND THAT WE PERMIT THE USE OF
SUCH VERSIONS ONLY UNDER THE FOLLOWING CONDITIONS:  SUCH SYNOPSIS,
SCENARIO, OR NEW STORY VERSION SHALL NOT EXCEED FIFTEEN HUNDRED (1500)
WORDS IN LENGTH WHEN BASED ON A SHORT STORY APPEARING COMPLETE IN ONE
ISSUE, OR FIVE THOUSAND (5000) WORDS WHEN BASED ON A SERIAL APPEARING
IN TWO OR MORE ISSUES, OR A SERIES OF NOT LESS THAN THREE CONNECTED
SHORT STORIES FROM WHICH A SINGLE PICTURE IS TO BE MADE.  SUCH SYNOPSIS
SHALL APPEAR ONLY IN CIRCULAR MATTER, PRESS BOOKS, PRESS NOTICES, TRADE
JOURNALS AND IN MAGAZINES DEVOTED EXCLUSIVELY TO DRAMATIC OR MOTION
PICTURE MATTER, AND SHALL IN NO EVENT APPEAR AS HAVING BEEN WRITTEN BY
THE AUTHOR.  WHEN SELLING MOTION-PICTURE OR DRAMATIC RIGHTS OF MATTER,
YOU MUST NOTIFY THE PRODUCER TO THIS EFFECT, SO THAT THERE MAY BE NO
MISUNDERSTANDING ON HIS PART AND NO INFRINGEMENT OF OUR RIGHTS." 

FN4  "SEC.  211.  TAX ON NONRESIDENT ALIEN INDIVIDUALS. 

"(C)  NO UNITED STATES BUSINESS OR OFFICE AND GROSS INCOME OF MORE
THAN $24,000.  - A NONRESIDENT ALIEN INDIVIDUAL NOT ENGAGED IN TRADE OR
BUSINESS WITHIN THE UNITED STATES AND NOT HAVING AN OFFICE OR PLACE OF
BUSINESS THEREIN WHO HAS A GROSS INCOME FOR ANY TAXABLE YEAR OF MORE
THAN $24,000 FROM THE SOURCES SPECIFIED IN SUBSECTION (A)(1), SHALL BE
TAXABLE WITHOUT REGARD TO THE PROVISIONS OF SUBSECTION (A)(1), EXCEPT
THAT - 

"(1)  THE GROSS INCOME SHALL INCLUDE ONLY INCOME FROM THE SOURCES
SPECIFIED IN SUBSECTION (A)(1) ..."  53 STAT. 75, 76, 54 STAT. 518. 

FN5  THE SUBSECTION READS AS FOLLOWS: 

"SEC. 211.  TAX ON NONRESIDENT ALIEN INDIVIDUALS. 

"(A)  NO UNITED STATES BUSINESS OR OFFICE.  - 

"(1)  GENERAL RULE.  - 

"(A)  IMPOSITION OF TAX.  - THERE SHALL BE LEVIED, COLLECTED, AND
PAID FOR EACH TAXABLE YEAR, IN LIEU OF THE TAX IMPOSED BY SECTIONS 11
AND 12, UPON THE AMOUNT RECEIVED, BY EVERY NONRESIDENT ALIEN INDIVIDUAL
NOT ENGAGED IN TRADE OR BUSINESS WITHIN THE UNITED STATES AND NOT
HAVING AN OFFICE OR PLACE OF BUSINESS THEREIN, FROM SOURCES WITHIN THE
UNITED STATES AS INTEREST (EXCEPT INTEREST ON DEPOSITS WITH PERSONS
CARRYING ON THE BANKING BUSINESS), DIVIDENDS, RENTS, SALARIES, WAGES,
PREMIUMS, ANNUITIES, COMPENSATIONS, REMUNERATIONS, EMOLUMENTS, OR OTHER
FIXED OR DETERMINABLE ANNUAL OR PERIODICAL GAINS, PROFITS, AND INCOME,
A TAX OF 15 PER CENTUM OF SUCH AMOUNT.  ..."  53 STAT. 75, 54 STAT.
518. 

FN6  "SEC.  119.  INCOME FROM SOURCES WITHIN UNITED STATES. 

"(A)  GROSS INCOME FROM SOURCES IN UNITED STATES.  - THE FOLLOWING
ITEMS OF GROSS INCOME SHALL BE TREATED AS INCOME FROM SOURCES WITHIN
THE UNITED STATES: 

     .         .         .         .  . 

"(4)  RENTALS AND ROYALTIES.  - RENTALS OR ROYALTIES FROM PROPERTY
LOCATED IN THE UNITED STATES OR FROM ANY INTEREST IN SUCH PROPERTY,
INCLUDING RENTALS OR ROYALTIES FOR THE USE OF OR FOR THE PRIVILEGE OF
USING IN THE UNITED STATES, PATENTS, COPYRIGHTS, SECRET PROCESSES AND
FORMULAS, GOOD WILL, TRADE-MARKS, TRADE BRANDS, FRANCHISES, AND OTHER
LIKE PROPERTY  ..."  53 STAT. 53, 54, 26 U.S.C. SEC. 119(A)(4). 

FN7  RENT IS SPECIFICALLY INCLUDED WITHIN SEC. 211(A)(1)(A); PROCEEDS
FROM THE SALE OF REAL PROPERTY, HOWEVER, ARE EXCLUDED.  U.S. TREAS.
REG. 111, SEC. 29.211-7. 

FN8  THE REPORTS IN BOTH THE HOUSE AND SENATE SAY SPECIFICALLY THAT A
RESULT OF SEC. 211(A)(1)(A) IS THAT "SUCH A NONRESIDENT ALIEN WILL NOT
BE SUBJECT TO THE TAX ON CAPITAL GAINS  ...  ."  S. REP. NO. 2156, 74TH
CONG., 2D SESS., P. 21(1936); H.R. REP. NO. 2475, 74TH CONG., 2D SESS.,
PP. 9-10(1936); SEE FULDA, COPYRIGHT ASSIGNMENTS AND THE CAPITAL GAINS
TAX, 58 YALE L.J. 245, 259, 260-266(1949). 

FN9  "IN 13 CORPUS JURIS (1094-1095) IT IS STATED THAT A COPYRIGHT IS
AN INDIVISIBLE THING AND CAN NOT BE SPLIT UP AND PARTIALLY ASSIGNED,
EITHER AS TO TIME, PLACE, OR PARTICULAR RIGHTS OR PRIVILEGES, LESS THAN
THE SUM OF ALL THE RIGHTS COMPREHENDED IN THE COPYRIGHT; THAT EXCLUSIVE
RIGHTS MAY, HOWEVER, BE GRANTED, LIMITED AS TO TIME, PLACE, OR EXTENT
OF PRIVILEGES WHICH THE GRANTEE MAY ENJOY; AND THAT THE BETTER VIEW IS
THAT SUCH LIMITED GRANTS OPERATE MERELY AS LICENSES AND NOT AS
TECHNICAL ASSIGNMENTS, ALTHOUGH OFTEN SPOKEN OF AS ASSIGNMENTS. 
(CITING TWO LOWER COURT CASES HAVING TO DO WITH PROCEDURAL QUESTIONS.) 

"IT IS APPARENT FROM THE FACTS IN THIS CASE THAT IN NO INSTANCE DID
THE TAXPAYER ASSIGN HIS LITERARY PROPERTY IN ITS ENTIRETY OR HIS
COPYRIGHT THEREIN, OR HIS INDIVISIBLE RIGHTS THEREIN IN GRANTING THE
SERIAL, THE VOLUME, THE BOOK, THE SECOND SERIAL, THE DRAMATIC OR MOTION
PICTURE RIGHTS TO THE VARIOUS CONTRACTING PARTIES.  THE TAXPAYER IN
THESE CONTRACTS GRANTED THE PUBLISHERS AND PRODUCERS LICENSES TO USE IN
PARTICULAR WAYS HIS LITERARY PROPERTY AND HIS COPYRIGHT THEREIN, AND
EXACTED FROM THEM CERTAIN PAYMENTS FOR THAT USE.  THESE WERE NOT, AND
COULD NOT BE, CONTRACTS OF SALES; THEY WERE IN FACT CONTRACTS OF
LICENSE, AND THE PAYMENTS FOR SUCH LICENSES CONSTITUTED RENTALS OR
ROYALTIES SUBJECT TO TAX AS SUCH.  ... 

"...  SINCE THE GRANT BY THE TAXPAYER IN EACH INSTANCE IS SO CLEARLY
THE GRANT OF A PARTICULAR RIGHT IN ALL THE RIGHTS CONSTITUTING THE
TAXPAYER'S LITERARY PROPERTY AND COPYRIGHT, THE CONCLUSION IS OBVIOUS
THAT THE GRANT IS A LICENSE AND NOT A SALE. 

     .         .         .         . . 

"IN OFFICE DECISION 988, SUPRA, A GRANT OF ALL RIGHTS OF SERIAL
PUBLICATION IN THE UNITED STATES IN CERTAIN LITERARY WORKS WAS THROUGH
ERROR SAID TO BE A SALE.  SUCH A GRANT COULD ONLY BE A LICENSE.  OFFICE
DECISION 988 IS ACCORDINGLY REVOKED. 

"IN I.T. 1231, SUPRA, IT WAS STATED THAT THERE WAS A SALE OF SERIAL
RIGHTS OF PUBLICATION.  SINCE IT IS HELD THAT SUCH A GRANT COULD ONLY
BE A LICENSE, I.T. 1231 IS MODIFIED TO ACCORD WITH THE VIEWS HEREIN
EXPRESSED."  I.T. 2735, XII-2, CUM. BULL.  131, 134-35(1933). 

FN10  IN THE SABATINI CASE THE TRANSFER OF THE MOTION-PICTURE RIGHTS,
AS WAS TRUE OF THE BOOK RIGHTS, TOOK PLACE IN ENGLAND, BUT THE ATTEMPT
WAS MADE TO BRING THE PROCEEDS WITHIN SEC. 119(A)(4) ON THE GROUND THAT
THE RIGHTS WERE TO BE EXERCISED IN THE UNITED STATES.  SINCE THE
PROCEEDS FROM THE BOOK RIGHTS WERE TIED TO USE IN THE UNITED STATES,
THEY WERE HELD TO BE INCLUDED WITHIN SEC. 119(A)(4).  BUT THE PROCEEDS
FROM THE TRANSFER OF THE MOTION-PICTURE RIGHTS WERE NOT INCLUDED
BECAUSE THE PROCEEDS WERE NOT TIED TO A SUBSEQUENT USE IN THE UNITED
STATES.  THERE, AS HERE, IT WAS URGED THAT THE SUBSEQUENT EXPLOITATION
OF THE COPYRIGHT BY THE TRANSFEREE IN THE UNITED STATES BROUGHT THE
PROCEEDS WITHIN SEC. 119(A)(4) BECAUSE IT WAS NOT POSSIBLE FOR THE
TRANSFER TO HAVE BEEN ANYTHING OTHER THAN FOR THE USE, RATHER THAN THE
SALE, OF RIGHTS IN THE COPYRIGHT.  BUT THIS CONTENTION CAN REST ONLY ON
THE ASSUMPTION THAT A COPYRIGHT IS INDIVISIBLE. 

FN11  THIS REVERSAL OF THE BOARD OF TAX APPEALS DID NOT OCCUR UNTIL
1938, TWO YEARS AFTER CONGRESS HAD REVISED THE PROVISIONS TAXING
NONRESIDENT ALIENS.  IN REVERSING, THE COURT OF APPEALS FIRST
DETERMINED THAT THE TRANSFER OF LESS THAN ALL THE RIGHTS PRECLUDED A
SALE.  IT THEN HELD THAT THE PROCEEDS SHOULD BE INCLUDED, ADMITTING
HOWEVER THAT THERE "SEEMS TO BE NO DIRECT AUTHORITY FOR THIS VIEW OF
THE MEANING OF THE STATUTE  ..."  SABATINI V. COMMISSIONER, 98 F.2D
753, 755(C.A.2D CIR.). 

FN12  THIS CASE WAS NOT DECIDED UNTIL 1946.  ROHMER V. COMMISSIONER,
153 F.2D 61(C.A.2D CIR.). MOLNAR V. COMMISSIONER, 156 F.2D 924(C.A.2D
CIR.), IS NOT SUCH A CASE.  THE COURT THERE DEALT SOLELY WITH THE
APPORTIONMENT PROBLEM INVOLVED IN COMPUTING TAXPAYER'S INCOME WHEN THE
COPYRIGHT WAS TO BE USED IN BOTH THE UNITED STATES AND OTHER PARTS OF
THE WORLD. 

FN13  IN ROHMER V. COMMISSIONER, 153 F.2D 61(C.A.2D CIR.), THE COURT
SAID:  "WHERE A COPYRIGHT OWNER TRANSFERS TO ANY PARTICULAR TRANSFEREE
SUBSTANTIALLY LESS THAN THE ENTIRE 'BUNDLE OF RIGHTS' CONFERRED BY THE
COPYRIGHT, THEN PAYMENT THEREFOR, WHETHER IN ONE SUM OR IN SEVERAL
PAYMENTS, CONSTITUTES ROYALTIES WITHIN THE MEANING OF SEC.
211(A)(1)(A).  FOR SUCH A TRANSFER IS THE GRANT OF A LICENSE.  PAYMENT
FOR THE GRANT OF SUCH A LICENSE IS MEASURED BY REFERENCE TO THE FUTURE
USE OR EXPECTED USE OF THE LICENSE BY THE LICENSEE  ...  .  IT IS LIKE
INTEREST PAID FOR SEVERAL YEARS."  P. 63.  THAT THE DOCTRINE OF
INDIVISIBILITY DETERMINED DECISION APPEARS FROM STANDARD OIL CO. V.
CLARK, 163 F.2D 917, 936, 939(C.A.2D CIR.).  THE DECISION IN SABATINI
V. COMMISSIONER, 98 F.2D 753, 755(C.A.2D CIR.), ALSO TURNED ON THE
DOCTRINE OF THE INDIVISIBILITY OF A COPYRIGHT. 

FN14  GENERAL ANILINE & FILM CORP. V. COMMISSIONER, 139 F.2D
759(C.A.2D CIR.); SEE ALSO COMMISSIONER V. CELANESE CORP., 78 U.S. APP.
D.C. 292, 140 F.2D 339.  BOTH CASES ARE UNDER SEC. 143(B), THE SECTION
WITH WHICH SEC. 211(A)(1)(A) WAS MADE COTERMINOUS. 

FN15  SECTION ONE OF THE COPYRIGHT LAW PROVIDES:    "SEC. 1. 
EXCLUSIVE RIGHTS AS TO COPYRIGHTED WORKS.  - ANY PERSON ENTITLED
THERETO, UPON COMPLYING WITH THE PROVISIONS OF THIS TITLE, SHALL HAVE
THE EXCLUSIVE RIGHT: 

"(A)  TO PRINT, REPRINT, PUBLISH, COPY, AND VEND THE COPYRIGHTED
WORK; 

"(B)  TO TRANSLATE THE COPYRIGHTED WORK INTO OTHER LANGUAGES OR
DIALECTS, OR MAKE ANY OTHER VERSION THEREOF, IF IT BE A LITERARY WORK;
TO DRAMATIZE IT IF IT BE A NONDRAMATIC WORK; TO CONVERT IT INTO A NOVEL
OR OTHER NONDRAMATIC WORK IF IT BE A DRAMA; TO ARRANGE OR ADAPT IT IF
IT BE A MUSICAL WORK; TO COMPLETE, EXECUTE, AND FINISH IT IF IT BE A
MODEL OR DESIGN FOR A WORK OF ART; 

"(C)  TO DELIVER OR AUTHORIZE THE DELIVERY OF THE COPYRIGHTED WORK IN
PUBLIC FOR PROFIT IF IT BE A LECTURE, SERMON, ADDRESS, OR SIMILAR
PRODUCTION; 

"(D)  TO PERFORM OR REPRESENT THE COPYRIGHTED WORK PUBLICLY IF IT BE
A DRAMA OR, IF IT BE A DRAMATIC WORK AND NOT REPRODUCED IN COPIES FOR
SALE, TO VEND ANY MANUSCRIPT OR ANY RECORD WHATSOEVER THEREOF; TO MAKE
OR TO PROCURE THE MAKING OF ANY TRANSCRIPTION OR RECORD THEREOF BY OR
FROM WHICH, IN WHOLE OR IN PART, IT MAY IN ANY MANNER OR BY ANY METHOD
BE EXHIBITED, PERFORMED, REPRESENTED, PRODUCED, OR REPRODUCED; AND TO
EXHIBIT, PERFORM, REPRESENT, PRODUCE, OR REPRODUCE IT IN ANY MANNER OR
BY ANY METHOD WHATSOEVER; AND 

"(E)  TO PERFORM THE COPYRIGHTED WORK PUBLICLY FOR PROFIT IF IT BE A
MUSICAL COMPOSITION; AND FOR THE PURPOSE OF PUBLIC PERFORMANCE FOR
PROFIT, AND FOR THE PURPOSES SET FORTH IN SUBSECTION (A) HEREOF, TO
MAKE ANY ARRANGEMENT OR SETTING OF IT OR OF THE MELODY OF IT IN ANY
SYSTEM OF NOTATION OR ANY FORM OF RECORD IN WHICH THE THOUGHT OF AN
AUTHOR MAY BE RECORDED AND FROM WHICH IT MAY BE READ OR REPRODUCED:
..."  61 STAT. 652, 17 U.S.C. SEC. 1. 

FN16  "A MAN HAVING GENERAL STATUTORY DRAMATIC RIGHTS LIKE KAUFFMAN
MIGHT MAKE A PLAY AND PERFORM IT UNDER HIS COMMON-LAW RIGHTS WITHOUT
PUBLICATION, OR HE MIGHT COPYRIGHT THE PLAY, AND HE WOULD STILL NOT
HAVE COPYRIGHTED OR PUBLISHED HIS MOVING PICTURE RIGHTS.  IF HE WROTE
SUCH A SCENARIO AND MADE HIS FILM, HE COULD GET A SEPARATE COPYRIGHT
UPON THAT.  OF COURSE, HE COULD SELL HIS STATUTORY OR COMMON-LAW
COPYRIGHT OF THE PLAY AND KEEP THE MOVING PICTURE COPYRIGHT, OR HE
COULD SELL EACH. 

"IT SEEMS TO ME CLEAR THAT, IF HE COULD DO THIS, HE COULD SELL
SEPARATELY THE RIGHT TO DRAMATIZE AND THE RIGHT TO MAKE A MOVING
PICTURE PLAY, DIVIDING HIS STATUTORY DRAMATIZING RIGHTS, AND THUS
GIVING EACH ASSIGNEE THE RIGHT WHEN HE HAD EXERCISED THOSE RIGHTS TO
GET HIS OWN COPYRIGHT FOR A DRAMA, OR FOR A MOVING PICTURE SHOW." 
LEARNED HAND, J., IN PHOTO DRAMA MOTION PICTURE CO. V. SOCIAL UPLIFT
FILM CORP., 213 F. 374, 377(S.D.N.Y.).  SEE ALSO WITHERS V. NETHERSOLE,
(1948) 1 ALL E.R. 400.  "THE EFFECT OF A PARTIAL ASSIGNMENT OF
COPYRIGHT FOR A PERIOD LESS THAN THE WHOLE TERM IS NOT TO CREATE ANY
NEW RIGHT, BUT ONLY TO DIVIDE THE EXISTING RIGHT.  IN THE RESULT, THERE
ARE TWO SEPARATE OWNERS EACH WITH A DISTINCT PROPERTY.  NEITHER HOLDS
UNDER THE OTHER."  AT P. 404. 
..END :






















YOUNG V. RAGEN, 337 U.S. 235 


NO. 50.  ARGUED NOVEMBER 17, 1948.  - DECIDED JUNE 6, 1949.  - ORDERS
VACATED AND CAUSES REMANDED. 


1.  CONVICTED IN AN ILLINOIS CIRCUIT COURT AND SENTENCED TO PRISON,
PETITIONER APPLIED TO THE SAME COURT FOR HABEAS CORPUS, CLAIMING DENIAL
OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.  HIS PETITION WAS DENIED
WITHOUT A HEARING ON THE GROUND THAT IT WAS "INSUFFICIENT IN LAW AND
SUBSTANCE."  ON REVIEW HERE, THE STATE ATTORNEY GENERAL CONCEDED THAT
THE PETITION RAISED SUBSTANTIAL FEDERAL QUESTIONS; ARGUED THAT HABEAS
CORPUS WAS NOT AN APPROPRIATE REMEDY UNDER STATE LAW WHEN THE PETITION
WAS DENIED; BUT ADMITTED THAT IT PROBABLY IS AN APPROPRIATE REMEDY
UNDER "ANNOUNCEMENTS" CONTAINED IN SUBSEQUENT DECISIONS OF THE ILLINOIS
SUPREME COURT, THOUGH OTHER ILLINOIS TRIAL COURTS HAVE CONTINUED TO
DENY HABEAS CORPUS ON PROCEDURAL GROUNDS.  HELD:  THE ORDER DENYING
HABEAS CORPUS IS VACATED AND THE CAUSE IS REMANDED FOR CONSIDERATION OF
THE PRESENT APPLICABILITY OF THAT REMEDY IN THE LIGHT OF THE STATE
SUPREME COURT'S "ANNOUNCEMENT" IN PEOPLE V. LOFTUS, 400 ILL. 432, 81
N.E.2D 495, AND OTHER RELEVANT ILLINOIS DECISIONS.  PP. 236-240. 

(A)  MORE THAN A QUESTION OF STATE PROCEDURE IS INVOLVED WHEN A STATE
COURT OF LAST RESORT CLOSES THE DOOR TO ANY CONSIDERATION OF A CLAIM OF
DENIAL OF A FEDERAL RIGHT.  P. 238. 

(B)  THE DOCTRINE THAT FEDERAL COURTS WILL NOT GRANT HABEAS CORPUS TO
PRISONERS UNDER JUDGMENTS OF STATE COURTS UNTIL ALL STATE REMEDIES HAVE
BEEN EXHAUSTED, EX PARTE HAWK, 321 U.S. 114, 28 U.S.C. SEC. 2254,
PRESUPPOSES THE EXISTENCE OF SOME ADEQUATE REMEDY UNDER STATE LAW.  PP.
238-239. 

2.  THE ORDERS IN SEVEN OTHER CASES IN WHICH ILLINOIS COURTS HAD
DENIED HABEAS CORPUS WITHOUT HEARINGS ARE LIKEWISE VACATED AND REMANDED
FOR SIMILAR CONSIDERATION.  P. 240. 

YOUNG V. RAGEN, WARDEN. 

CERTIORARI TO THE CIRCUIT COURT OF RANDOLPH COUNTY, ILLINOIS* . 

*TOGETHER WITH NO. 47, MISC., EVANS V. NIERSTHEIMER, WARDEN, ON
PETITION FOR CERTIORARI TO THE CIRCUIT COURT OF ST. CLAIR COUNTY,
ILLINOIS; NO. 106, MISC., WILLIS V. RAGEN, WARDEN, NO. 109, MISC.,
THOMPSON V. RAGEN, WARDEN, NO. 184, MISC., LEWIS V. RAGEN, WARDEN, AND
NO. 372, MISC., SHERMAN V. RAGEN, WARDEN, ET AL., ALL ON PETITION FOR
CERTIORARI TO THE CRIMINAL COURT OF COOK COUNTY, ILLINOIS; NO. 760,
SMITH V. RAGEN, WARDEN, ON CERTIORARI TO THE CIRCUIT COURT OF WILL
COUNTY, ILLINOIS; AND NO. 374, MISC., BANKS V. RAGEN, WARDEN, ON
PETITION FOR CERTIORARI TO THE CIRCUIT COURT OF WILL COUNTY, ILLINOIS. 

IN NO. 50, AN ILLINOIS TRIAL COURT DENIED WITHOUT A HEARING A
PETITION FOR HABEAS CORPUS RAISING SUBSTANTIAL QUESTIONS UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THIS COURT GRANTED
CERTIORARI.  334 U.S. 810.  IT ALSO GRANTED CERTIORARI IN NO. 760(336
U.S. 966), AND NOW GRANTS CERTIORARI IN THE SIX OTHER CASES.  ORDERS
VACATED AND CAUSES REMANDED, P. 240. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

WE ARE ONCE AGAIN FACED WITH THE RECURRING PROBLEM OF DETERMINING
WHAT, IF ANY, IS THE APPROPRIATE POST-TRIAL PROCEDURE IN ILLINOIS BY
WHICH CLAIMS OF INFRINGEMENT OF FEDERAL RIGHTS MAY BE RAISED.  SEE
WOODS V. NIERSTHEIMER, 328 U.S. 211; MARINO V. RAGEN, 332 U.S. 561;
LOFTUS V. ILLINOIS, 334 U.S. 804.  IN 1946, PETITIONER PLEADED GUILTY
TO AN INDICTMENT CHARGING HIM WITH HAVING COMMITTED BURGLARY AND
LARCENY AND WAS SENTENCED TO FIVE TO SEVEN YEARS IMPRISONMENT.  A YEAR
LATER HE FILED A PETITION FOR A WRIT OF HABEAS CORPUS IN THE CIRCUIT
COURT OF RANDOLPH COUNTY, ILLINOIS, THE SENTENCING COURT, CONTAINING
ALLEGATIONS WHICH, IF TRUE, RAISE SUBSTANTIAL QUESTIONS UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE ATTORNEY GENERAL OF
ILLINOIS CONCEDES THAT PETITIONER IS ENTITLED TO A HEARING INTO THE
TRUTH OR FALSITY OF THE CHARGES.  THE COURT TO WHICH THE PETITION FOR A
WRIT OF HABEAS CORPUS WAS DIRECTED DENIED THE PETITION WITHOUT HOLDING
A HEARING, HOWEVER, FOR THE REASON THAT IT "IS INSUFFICIENT IN LAW AND
SUBSTANCE."  WE GRANTED THE PETITION FOR A WRIT OF CERTIORARI, 334 U.S.
810, TO CONSIDER THE QUESTION THUS PRESENTED. 

THE ATTORNEY GENERAL EXPLAINS THE CIRCUIT COURT'S DENIAL OF THE
PETITION FOR THE WRIT AS BASED UPON STATE PROCEDURAL GROUNDS:  THAT
HABEAS CORPUS WAS NOT AN APPROPRIATE REMEDY FOR THE RELIEF OF DENIALS
OF DUE PROCESS.  HE CONTENDS, HOWEVER, THAT WHILE THE CIRCUIT COURT WAS
CORRECT IN ITS INTERPRETATION OF ILLINOIS LAW WHEN IT DENIED THE
PETITION, CERTAIN STATEMENTS IN THE ILLINOIS SUPREME COURT'S OPINIONS
IN PEOPLE V. LOFTUS, 400 ILL. 432, 81 N.E.2D 495; PEOPLE V. SHOFFNER,
400 ILL. 174, 79 N.E.2D 200; AND PEOPLE V. WILSON, 399 ILL. 437, 78
N.E.2D 514, ALL OF WHICH WERE HANDED DOWN SUBSEQUENT TO THE CIRCUIT
COURT'S DENIAL OF RELIEF, STRONGLY INDICATE THAT HABEAS CORPUS WOULD
NOW BE THE APPROPRIATE ILLINOIS PROCEDURE IN A CASE SUCH AS THE ONE
BEFORE US.  HIS CONTENTION IS, IN OTHER WORDS, THAT WHILE THE PETITION
FOR HABEAS CORPUS WAS PROPERLY DENIED WHEN ACTED UPON BELOW, THE
DECISIONS JUST CITED PROBABLY BROADEN THE SCOPE OF HABEAS CORPUS IN
ILLINOIS, SO THAT A DENIAL OF A HEARING WOULD BE ERRONEOUS IF THE
PETITION WERE AGAIN PRESENTED TO THE CIRCUIT COURT. 

THE SITUATION IS FURTHER COMPLICATED, HOWEVER, BY THE FACT THAT MANY
CIRCUIT COURTS, WHOSE DECISIONS UPON HABEAS CORPUS ARE UNREVIEWABLE BY
THE STATE SUPREME COURT UNDER ILLINOIS LAW, HAVE CONTINUED TO DENY
PETITIONS FOR HABEAS CORPUS ON PROCEDURAL GROUNDS SINCE THE SUPREME
COURT'S "ANNOUNCEMENT" IN PEOPLE V. LOFTUS, SUPRA.  THE ATTORNEY
GENERAL'S POSITION CONCERNING THESE DENIALS, AS WE UNDERSTAND IT, IS
THAT THESE DECISIONS MAY BE WRONG, DEPENDING UPON WHETHER HIS
INTERPRETATION OF THE LOFTUS "ANNOUNCEMENT" IS THE CORRECT ONE, BUT
THAT WHETHER RIGHT OR WRONG, THEY ARE DECISIONS SOLELY UPON A QUESTION
OF ILLINOIS PROCEDURAL LAW AND THUS DO NOT WARRANT INVOCATION OF THE
JURISDICTION OF THIS COURT. 

OF COURSE WE DO NOT REVIEW STATE DECISIONS WHICH REST UPON ADEQUATE
NONFEDERAL GROUNDS, AND OF COURSE ILLINOIS MAY CHOOSE THE PROCEDURE IT
DEEMS APPROPRIATE FOR THE VINDICATION OF FEDERAL RIGHTS.  LOFTUS V.
ILLINOIS, SUPRA.  BUT IT IS NOT SIMPLY A QUESTION OF STATE PROCEDURE
WHEN A STATE COURT OF LAST RESORT CLOSES THE DOOR TO ANY CONSIDERATION
OF A CLAIM OF DENIAL OF A FEDERAL RIGHT.  AND THAT IS THE EFFECT OF THE
DENIALS OF HABEAS CORPUS IN A NUMBER OF CASES NOW BEFORE THIS COURT,
FOR IN NONE OF THE CASES DOES THE ATTORNEY GENERAL SUGGEST THAT EITHER
OF THE OTHER TWO ILLINOIS POST-TRIAL REMEDIES, WRIT OF ERROR AND CORAM
NOBIS, IS APPROPRIATE.  UNLESS HABEAS CORPUS IS AVAILABLE, THEREFORE,
WE ARE LED TO BELIEVE THAT ILLINOIS OFFERS NO POST-TRIAL REMEDY IN
CASES OF THIS KIND.  THE DOCTRINE OF EXHAUSTION OF STATE REMEDIES, TO
WHICH THIS COURT HAS REQUIRED THE SCRUPULOUS ADHERENCE OF ALL FEDERAL
COURTS, SEE EX PARTE HAWK, 321 U.S. 114  FN1  AND CASES CITED,
PRESUPPOSES THAT SOME ADEQUATE STATE REMEDY EXISTS.  WE RECOGNIZE THE
DIFFICULTIES WITH WHICH THE ILLINOIS SUPREME COURT IS FACED IN ADAPTING
AVAILABLE STATE PROCEDURES TO THE REQUIREMENT THAT PRISONERS BE GIVEN
SOME CLEARLY DEFINED METHOD BY WHICH THEY MAY RAISE CLAIMS OF DENIAL OF
FEDERAL RIGHTS.  NEVERTHELESS, THAT REQUIREMENT MUST BE MET.  IF THERE
IS NOW NO POST-TRIAL PROCEDURE BY WHICH FEDERAL RIGHTS MAY BE
VINDICATED IN ILLINOIS, WE WISH TO BE ADVISED OF THAT FACT UPON REMAND
OF THIS CASE. 

SEVEN OTHER PETITIONS FOR CERTIORARI WHICH RAISE SUBSTANTIAL
QUESTIONS UNDER THE DUE-PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ARE
NOW BEFORE THIS COURT FOLLOWING DENIALS OF HABEAS CORPUS BY ILLINOIS
CIRCUIT COURTS OR THE CRIMINAL COURT OF COOK COUNTY.  IN NONE OF THESE
CASES WAS A HEARING HELD OR THE PETITIONER PERMITTED TO SUBMIT PROOF OF
THE TRUTH OF HIS ALLEGATIONS.  IN THREE INSTANCES, THE DENIAL OF HABEAS
CORPUS OCCURRED PRIOR TO THE SUPREME COURT'S "ANNOUNCEMENT" IN PEOPLE
V. LOFTUS, SUPRA, AS WAS TRUE IN THE CASE OF YOUNG.  A SIMILAR
DISPOSITION OF THESE PETITIONS IS THEREFORE REQUIRED. 

FOUR PETITIONS FOR CERTIORARI INVOLVE DENIALS OF HABEAS CORPUS
SUBSEQUENT TO THE LOFTUS "ANNOUNCEMENT."  IT MAY WELL BE THAT THESE
DECISIONS REPRESENT THE OPINION OF FOUR ILLINOIS CIRCUIT JUDGES THAT
HABEAS CORPUS IS NOT AN APPROPRIATE REMEDY UNDER ILLINOIS LAW DESPITE
THE LOFTUS OPINION.  OUT OF AN ABUNDANCE OF CAUTION, WE HAVE CONCLUDED,
HOWEVER, THAT THESE CASES SHOULD ALSO BE REMANDED TO THE STATE COURTS,
SINCE IT IS POSSIBLE THAT THE LOFTUS "ANNOUNCEMENT" WAS NOT BROUGHT TO
THEIR ATTENTION OR ITS POSSIBLE SIGNIFICANCE POINTED OUT.  AS IN THE
OTHER CASES, WE WISH TO BE ADVISED, IF A HEARING IS AGAIN DENIED,
WHETHER THE COURT IS OF THE OPINION THAT HABEAS CORPUS IS NOT AN
APPROPRIATE REMEDY IN ILLINOIS IN CASES RAISING QUESTIONS UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

ACCORDINGLY, THE ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS IN NO. 50, YOUNG V. RAGEN, IS VACATED AND THE CAUSE REMANDED FOR
CONSIDERATION OF THE PRESENT AVAILABILITY OF HABEAS CORPUS IN THE LIGHT
OF THE STATE SUPREME COURT'S "ANNOUNCEMENT" IN PEOPLE V. LOFTUS, SUPRA,
AND OTHER RELEVANT ILLINOIS DECISIONS.  THE PETITIONS FOR CERTIORARI IN
NO. 47, MISC., EVANS V. NIERSTHEIMER; IN NO. 106, MISC., WILLIS V.
RAGEN; IN NO. 109, MISC., THOMPSON V. RAGEN; IN NO. 184, MISC., LEWIS
V. RAGEN; IN NO. 372, MISC., SHERMAN V. RAGEN ET AL.; AND IN NO. 374,
MISC., BANKS V. RAGEN, ARE GRANTED.  THE ORDERS DENYING PETITIONS FOR
WRITS OF HABEAS CORPUS IN THESE CASES, TOGETHER WITH THAT IN NO. 760,
SMITH V. RAGEN,  FN2  ARE VACATED AND THE CAUSES REMANDED FOR SIMILAR
CONSIDERATION.  ORDERS WILL BE ENTERED ACCORDINGLY. 

FN1  EXISTING LAW AS DECLARED BY EX PARTE HAWK WAS MADE A PART OF THE
STATUTE BY THE NEW JUDICIAL CODE, 28 U.S.C. SEC. 2254, WHICH PROVIDES: 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PERSON IN
CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT BE GRANTED
UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER AN
ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER. 

"AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING OF THIS
ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 

FN2  CERTIORARI GRANTED, 336 U.S. 966.  (DOCKETED AS NO. 265, MISC.)
..END :
























WILLIAMS V. NEW YORK, 337 U.S. 241 


NO. 671.  ARGUED APRIL 21, 1949.  - DECIDED JUNE 6, 1949.  - 298 N.Y.
803, 83 N.E.2D 698, AFFIRMED. 


THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT REQUIRE
THAT A PERSON CONVICTED AFTER A FAIR TRIAL BE CONFRONTED WITH AND
PERMITTED TO CROSS-EXAMINE WITNESSES AS TO HIS PRIOR CRIMINAL RECORD
CONSIDERED BY THE JUDGE IN ACCORDANCE WITH A STATE STATUTE IN
DETERMINING WHAT SENTENCE TO IMPOSE PURSUANT TO BROAD DISCRETION VESTED
IN HIM UNDER STATE LAW - EVEN WHEN THE JURY RECOMMENDS LIFE
IMPRISONMENT AND THE JUDGE IMPOSES A DEATH SENTENCE.  PP. 242-252. 

(A)  IT HAS LONG BEEN THE PRACTICE TO PERMIT THE SENTENCING JUDGE TO
EXERCISE A WIDE DISCRETION AS TO THE SOURCES AND TYPES OF INFORMATION
USED TO ASSIST HIM IN DETERMINING THE SENTENCE TO BE IMPOSED WITHIN THE
LIMITS FIXED BY LAW.  P. 246. 

(B)  MODERN CONCEPTS INDIVIDUALIZING PUNISHMENT HAVE MADE IT ALL THE
MORE NECESSARY THAT A SENTENCING JUDGE NOT BE DENIED AN OPPORTUNITY TO
OBTAIN PERTINENT INFORMATION BY A REQUIREMENT OF RIGID ADHERENCE TO
RESTRICTIVE RULES OF EVIDENCE PROPERLY APPLICABLE TO THE TRIAL.  PP.
246-249. 

(C)  TO DEPRIVE THE SENTENCING JUDGE OF INFORMATION CONTAINED IN
REPORTS OF PROBATION OFFICERS WOULD UNDERMINE MODERN PENOLOGICAL
PROCEDURAL POLICIES THAT HAVE BEEN CAUTIOUSLY ADOPTED THROUGHOUT THE
NATION AFTER CAREFUL CONSIDERATION AND EXPERIMENTATION.  PP. 249-250. 

(D)  IN CONSIDERING THE SENTENCE TO BE IMPOSED AFTER CONVICTION, THE
SENTENCING JUDGE IS NOT RESTRICTED TO INFORMATION RECEIVED IN OPEN
COURT.  PP. 250-251. 

(E)  A DIFFERENT RESULT IS NOT REQUIRED WHEN A DEATH SENTENCE IS
IMPOSED.  PP. 251-252. 

WILLIAMS V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

AFTER A FAIR TRIAL, APPELLANT WAS CONVICTED OF MURDER IN THE FIRST
DEGREE AND THE JURY RECOMMENDED LIFE IMPRISONMENT.  AFTER CONSIDERING
INFORMATION AS TO HIS PREVIOUS CRIMINAL RECORD WITHOUT PERMITTING HIM
TO CONFRONT OR CROSS-EXAMINE THE WITNESSES ON THAT SUBJECT, THE TRIAL
JUDGE SENTENCED HIM TO DEATH.  THE COURT OF APPEALS OF NEW YORK
AFFIRMED.  298 N.Y. 803, 83 N.E.2D 698.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 252. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A JURY IN A NEW YORK STATE COURT FOUND APPELLANT GUILTY OF MURDER IN
THE FIRST DEGREE.  FN1  THE JURY RECOMMENDED LIFE IMPRISONMENT, BUT THE
TRIAL JUDGE IMPOSED SENTENCE OF DEATH.  FN2  IN GIVING HIS REASONS FOR
IMPOSING THE DEATH SENTENCE THE JUDGE DISCUSSED IN OPEN COURT THE
EVIDENCE UPON WHICH THE JURY HAD CONVICTED STATING THAT THIS EVIDENCE
HAD BEEN CONSIDERED IN THE LIGHT OF ADDITIONAL INFORMATION OBTAINED
THROUGH THE COURT'S "PROBATION DEPARTMENT, AND THROUGH OTHER SOURCES." 
CONSIDERATION OF THIS ADDITIONAL INFORMATION WAS PURSUANT TO SEC. 482
OF NEW YORK CRIMINAL CODE WHICH PROVIDES: 

"  ...  BEFORE RENDERING JUDGMENT OR PRONOUNCING SENTENCE THE COURT
SHALL CAUSE THE DEFENDANT'S PREVIOUS CRIMINAL RECORD TO BE SUBMITTED TO
IT, INCLUDING ANY REPORTS THAT MAY HAVE BEEN MADE AS A RESULT OF A
MENTAL, PHYCHIATRIC OR PHYSICAL EXAMINATION OF SUCH PERSON, AND MAY
SEEK ANY INFORMATION THAT WILL AID THE COURT IN DETERMINING THE PROPER
TREATMENT OF SUCH DEFENDANT." 

THE COURT OF APPEALS OF NEW YORK AFFIRMED THE CONVICTION AND SENTENCE
OVER THE CONTENTION THAT AS CONSTRUED AND APPLIED THE CONTROLLING PENAL
STATUTES ARE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES "IN THAT THE
SENTENCE OF DEATH WAS BASED UPON INFORMATION SUPPLIED BY WITNESSES WITH
WHOM THE ACCUSED HAD NOT BEEN CONFRONTED AND AS TO WHOM HE HAD NO
OPPORTUNITY FOR CROSS-EXAMINATION OR REBUTTAL  ...  "  298 N.Y. 803,
804, 83 N.E.2D 698, 699.  BECAUSE THE STATUTES WERE SUSTAINED OVER THIS
CONSTITUTIONAL CHALLENGE THE CASE IS HERE ON APPEAL UNDER 28 U.S.C.
SEC. 1257(2). 

THE NARROW CONTENTION HERE MAKES IT UNNECESSARY TO SET OUT THE FACTS
AT LENGTH.  THE RECORD SHOWS A CAREFULLY CONDUCTED TRIAL LASTING MORE
THAN TWO WEEKS IN WHICH APPELLANT WAS REPRESENTED BY THREE APPOINTED
LAWYERS WHO CONDUCTED HIS DEFENSE WITH FIDELITY AND ZEAL.  THE EVIDENCE
PROVED A WHOLLY INDEFENSIBLE MURDER COMMITTED BY A PERSON ENGAGED IN A
BURGLARY.  THE JUDGE INSTRUCTED THE JURY THAT IF IT RETURNED A VERDICT
OF GUILTY AS CHARGED, WITHOUT RECOMMENDATION FOR LIFE SENTENCE, "THE
COURT MUST IMPOSE THE DEATH PENALTY," BUT IF SUCH RECOMMENDATION WAS
MADE, "THE COURT MAY IMPOSE A LIFE SENTENCE."  THE JUDGE WENT ON TO
EMPHASIZE THAT "THE COURT IS NOT BOUND TO ACCEPT YOUR RECOMMENDATION." 

ABOUT FIVE WEEKS AFTER THE VERDICT OF GUILTY WITH RECOMMENDATION OF
LIFE IMPRISONMENT, AND AFTER A STATUTORY PRE-SENTENCE INVESTIGATION
REPORT TO THE JUDGE, THE DEFENDANT WAS BROUGHT TO COURT TO BE
SENTENCED.  ASKED WHAT HE HAD TO SAY, APPELLANT PROTESTED HIS
INNOCENCE.  AFTER EACH OF HIS THREE LAWYERS HAD APPEALED TO THE COURT
TO ACCEPT THE JURY'S RECOMMENDATION OF A LIFE SENTENCE, THE JUDGE GAVE
REASONS WHY HE FELT THAT THE DEATH SENTENCE SHOULD BE IMPOSED.  HE
NARRATED THE SHOCKING DETAILS OF THE CRIME AS SHOWN BY THE TRIAL
EVIDENCE, EXPRESSING HIS OWN COMPLETE BELIEF IN APPELLANT'S GUILT.  HE
STATED THAT THE PRE-SENTENCE INVESTIGATION REVEALED MANY MATERIAL FACTS
CONCERNING APPELLANT'S BACKGROUND WHICH THOUGH RELEVANT TO THE QUESTION
OF PUNISHMENT COULD NOT PROPERLY HAVE BEEN BROUGHT TO THE ATTENTION OF
THE JURY IN ITS CONSIDERATION OF THE QUESTION OF GUILT.  HE REFERRED TO
THE EXPERIENCE APPELLANT "HAD HAD ON THIRTY OTHER BURGLARIES IN AND
ABOUT THE SAME VICINITY" WHERE THE MURDER HAD BEEN COMMITTED.  THE
APPELLANT HAD NOT BEEN CONVICTED OF THESE BURGLARIES ALTHOUGH THE JUDGE
HAD INFORMATION THAT HE HAD CONFESSED TO SOME AND HAD BEEN IDENTIFIED
AS THE PERPETRATOR OF SOME OF THE OTHERS.  THE JUDGE ALSO REFERRED TO
CERTAIN ACTIVITIES OF APPELLANT AS SHOWN BY THE PROBATION REPORT THAT
INDICATED APPELLANT POSSESSED "A MORBID SEXUALITY" AND CLASSIFIED HIM
AS A "MENACE TO SOCIETY."  THE ACCURACY OF THE STATEMENTS MADE BY THE
JUDGE AS TO APPELLANT'S BACKGROUND AND PAST PRACTICES WAS NOT
CHALLENGED BY APPELLANT OR HIS COUNSEL, NOR WAS THE JUDGE ASKED TO
DISREGARD ANY OF THEM OR TO AFFORD APPELLANT A CHANCE TO REFUTE OR
DISCREDIT ANY OF THEM BY CROSS-EXAMINATION OR OTHERWISE. 

THE CASE PRESENTS A SERIOUS AND DIFFICULT QUESTION.  THE QUESTION
RELATES TO THE RULES OF EVIDENCE APPLICABLE TO THE MANNER IN WHICH A
JUDGE MAY OBTAIN INFORMATION TO GUIDE HIM IN THE IMPOSITION OF SENTENCE
UPON AN ALREADY CONVICTED DEFENDANT.  WITHIN LIMITS FIXED BY STATUTES,
NEW YORK JUDGES ARE GIVEN A BROAD DISCRETION TO DECIDE THE TYPE AND
EXTENT OF PUNISHMENT FOR CONVICTED DEFENDANTS.  HERE, FOR EXAMPLE, THE
JUDGE'S DISCRETION WAS TO SENTENCE TO LIFE IMPRISONMENT OR DEATH.  TO
AID A JUDGE IN EXERCISING THIS DISCRETION INTELLIGENTLY THE NEW YORK
PROCEDURAL POLICY ENCOURAGES HIM TO CONSIDER INFORMATION ABOUT THE
CONVICTED PERSON'S PAST LIFE, HEALTH, HABITS, CONDUCT, AND MENTAL AND
MORAL PROPENSITIES.  THE SENTENCING JUDGE MAY CONSIDER SUCH INFORMATION
EVEN THOUGH OBTAINED OUTSIDE THE COURTROOM FROM PERSONS WHOM A
DEFENDANT HAS NOT BEEN PERMITTED TO CONFRONT OR CROSS-EXAMINE.  IT IS
THE CONSIDERATION OF INFORMATION OBTAINED BY A SENTENCING JUDGE IN THIS
MANNER THAT IS THE BASIS FOR APPELLANT'S BROAD CONSTITUTIONAL CHALLENGE
TO THE NEW YORK STATUTORY POLICY. 

APPELLANT URGES THAT THE NEW YORK STATUTORY POLICY IS IN
IRRECONCILABLE CONFLICT WITH THE UNDERLYING PHILOSOPHY OF A SECOND
PROCEDURAL POLICY GROUNDED IN THE DUE PROCESS OF LAW CLAUSE OF THE
FOURTEENTH AMENDMENT.  THAT POLICY AS STATED IN IN RE OLIVER, 333 U.S.
257, 273, IS IN PART THAT NO PERSON SHALL BE TRIED AND CONVICTED OF AN
OFFENSE UNLESS HE IS GIVEN REASONABLE NOTICE OF THE CHARGES AGAINST HIM
AND IS AFFORDED AN OPPORTUNITY TO EXAMINE ADVERSE WITNESSES.  FN3  THAT
THE DUE PROCESS CLAUSE DOES PROVIDE THESE SALUTARY AND TIME-TESTED
PROTECTIONS WHERE THE QUESTION FOR CONSIDERATION IS THE GUILT OF A
DEFENDANT SEEMS ENTIRELY CLEAR FROM THE GENESIS AND HISTORICAL
EVOLUTION OF THE CLAUSE.  SEE, E.G., CHAMBERS V. FLORIDA, 309 U.S. 227,
236-237, AND AUTHORITIES CITED IN NOTE 10. 

TRIBUNALS PASSING ON THE GUILT OF A DEFENDANT ALWAYS HAVE BEEN HEDGED
IN BY STRICT EVIDENTIARY PROCEDURAL LIMITATIONS N4.  BUT BOTH BEFORE
AND SINCE THE AMERICAN COLONIES BECAME A NATION, COURTS IN THIS COUNTRY
AND IN ENGLAND PRACTICED A POLICY UNDER WHICH A SENTENCING JUDGE COULD
EXERCISE A WIDE DISCRETION IN THE SOURCES AND TYPES OF EVIDENCE USED TO
ASSIST HIM IN DETERMINING THE KIND AND EXTENT OF PUNISHMENT TO BE
IMPOSED WITHIN LIMITS FIXED BY LAW.  FN5  OUT-OF-COURT AFFIDAVITS HAVE
BEEN USED FREQUENTLY, AND OF COURSE IN THE SMALLER COMMUNITIES
SENTENCING JUDGES NATURALLY HAVE IN MIND THEIR KNOWLEDGE OF THE
PERSONALITIES AND BACKGROUNDS OF CONVICTED OFFENDERS.  FN6  A RECENT
MANIFESTATION OF THE HISTORICAL LATITUDE ALLOWED SENTENCING JUDGES
APPEARS IN RULE 32 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.  THAT
RULE PROVIDES FOR CONSIDERATION BY FEDERAL JUDGES OF REPORTS MADE BY
PROBATION OFFICERS CONTAINING INFORMATION ABOUT A CONVICTED DEFENDANT,
INCLUDING SUCH INFORMATION "AS MAY BE HELPFUL IN IMPOSING SENTENCE OR
IN GRANTING PROBATION OR IN THE CORRECTIONAL TREATMENT OF THE DEFENDANT
...  "  FN7 

IN ADDITION TO THE HISTORICAL BASIS FOR DIFFERENT EVIDENTIARY RULES
GOVERNING TRIAL AND SENTENCING PROCEDURES THERE ARE SOUND PRACTICAL
REASONS FOR THE DISTINCTION.  IN A TRIAL BEFORE VERDICT THE ISSUE IS
WHETHER A DEFENDANT IS GUILTY OF HAVING ENGAGED IN CERTAIN CRIMINAL
CONDUCT OF WHICH HE HAS BEEN SPECIFICALLY ACCUSED.  RULES OF EVIDENCE
HAVE BEEN FASHIONED FOR CRIMINAL TRIALS WHICH NARROWLY CONFINE THE
TRIAL CONTEST TO EVIDENCE THAT IS STRICTLY RELEVANT TO THE PARTICULAR
OFFENSE CHARGED.  THESE RULES REST IN PART ON A NECESSITY TO PREVENT A
TIME-CONSUMING AND CONFUSING TRIAL OF COLLATERAL ISSUES.  THEY WERE
ALSO DESIGNED TO PREVENT TRIBUNALS CONCERNED SOLELY WITH THE ISSUE OF
GUILT OF A PARTICULAR OFFENSE FROM BEING INFLUENCED TO CONVICT FOR THAT
OFFENSE BY EVIDENCE THAT THE DEFENDANT HAD HABITUALLY ENGAGED IN OTHER
MISCONDUCT.  A SENTENCING JUDGE, HOWEVER, IS NOT CONFINED TO THE NARROW
ISSUE OF GUILT.  HIS TASK WITHIN FIXED STATUTORY OR CONSTITUTIONAL
LIMITS IS TO DETERMINE THE TYPE AND EXTENT OF PUNISHMENT AFTER THE
ISSUE OF GUILT HAS BEEN DETERMINED.  HIGHLY RELEVANT - IF NOT ESSENTIAL
- TO HIS SELECTION OF AN APPROPRIATE SENTENCE IS THE POSSESSION OF THE
FULLEST INFORMATION POSSIBLE CONCERNING THE DEFENDANT'S LIFE AND
CHARACTERISTICS.  FN8  AND MODERN CONCEPTS INDIVIDUALIZING PUNISHMENT
HAVE MADE IT ALL THE MORE NECESSARY THAT A SENTENCING JUDGE NOT BE
DENIED AN OPPORTUNITY TO OBTAIN PERTINENT INFORMATION BY A REQUIREMENT
OF RIGID ADHERENCE TO RESTRICTIVE RULES OF EVIDENCE PROPERLY APPLICABLE
TO THE TRIAL. 

UNDOUBTEDLY THE NEW YORK STATUTES EMPHASIZE A PREVALENT MODERN
PHILOSOPHY OF PENOLOGY THAT THE PUNISHMENT SHOULD FIT THE OFFENDER AND
NOT MERELY THE CRIME.  PEOPLE V. JOHNSON, 252 N.Y. 387, 392, 169 N.E.
619, 621.  THE BELIEF NO LONGER PREVAILS THAT EVERY OFFENSE IN A LIKE
LEGAL CATEGORY CALLS FOR AN IDENTICAL PUNISHMENT WITHOUT REGARD TO THE
PAST LIFE AND HABITS OF A PARTICULAR OFFENDER.  THIS WHOLE COUNTRY HAS
TRAVELED FAR FROM THE PERIOD IN WHICH THE DEATH SENTENCE WAS AN
AUTOMATIC AND COMMONPLACE RESULT OF CONVICTIONS - EVEN FOR OFFENSES
TODAY DEEMED TRIVIAL.  FN9 TODAY'S PHILOSOPHY OF INDIVIDUALIZING
SENTENCES MAKES SHARP DISTINCTIONS FOR EXAMPLE BETWEEN FIRST AND
REPEATED OFFENDERS.  FN10  INDETERMINATE SENTENCES THE ULTIMATE
TERMINATION OF WHICH ARE SOMETIMES DECIDED BY NON-JUDICIAL AGENCIES
HAVE TO A LARGE EXTENT TAKEN THE PLACE OF THE OLD RIGIDLY FIXED
PUNISHMENTS.  FN11  THE PRACTICE OF PROBATION WHICH RELIES HEAVILY ON
NON-JUDICIAL IMPLEMENTATION HAS BEEN ACCEPTED AS A WISE POLICY.  FN12
EXECUTION OF THE UNITED STATES PAROLE SYSTEM RESTS ON THE DISCRETION OF
AN ADMINISTRATIVE PAROLE BOARD.  36 STAT. 819, 18 U.S.C. SECS. 714,
716, NOW SECS. 4202, 4203.  RETRIBUTION IS NO LONGER THE DOMINANT
OBJECTIVE OF THE CRIMINAL LAW.  REFORMATION AND REHABILITATION OF
OFFENDERS HAVE BECOME IMPORTANT GOALS OF CRIMINAL JURISPRUDENCE.  FN13 

MODERN CHANGES IN THE TREATMENT OF OFFENDERS MAKE IT MORE NECESSARY
NOW THAN A CENTURY AGO FOR OBSERVANCE OF THE DISTINCTIONS IN THE
EVIDENTIAL PROCEDURE IN THE TRIAL AND SENTENCING PROCESSES.  FOR
INDETERMINATE SENTENCES AND PROBATION HAVE RESULTED IN AN INCREASE IN
THE DISCRETIONARY POWERS EXERCISED IN FIXING PUNISHMENTS.  IN GENERAL,
THESE MODERN CHANGES HAVE NOT RESULTED IN MAKING THE LOT OF OFFENDERS
HARDER.  ON THE CONTRARY A STRONG MOTIVATING FORCE FOR THE CHANGES HAS
BEEN THE BELIEF THAT BY CAREFUL STUDY OF THE LIVES AND PERSONALITIES OF
CONVICTED OFFENDERS MANY COULD BE LESS SEVERELY PUNISHED AND RESTORED
SOONER TO COMPLETE FREEDOM AND USEFUL CITIZENSHIP.  THIS BELIEF TO A
LARGE EXTENT HAS BEEN JUSTIFIED. 

UNDER THE PRACTICE OF INDIVIDUALIZING PUNISHMENTS, INVESTIGATIONAL
TECHNIQUES HAVE BEEN GIVEN AN IMPORTANT ROLE.  PROBATION WORKERS MAKING
REPORTS OF THEIR INVESTIGATIONS HAVE NOT BEEN TRAINED TO PROSECUTE BUT
TO AID OFFENDERS.  THEIR REPORTS HAVE BEEN GIVEN A HIGH VALUE BY
CONSCIENTIOUS JUDGES WHO WANT TO SENTENCE PERSONS ON THE BEST AVAILABLE
INFORMATION RATHER THAN ON GUESSWORK AND INADEQUATE INFORMATION.  FN14
TO DEPRIVE SENTENCING JUDGES OF THIS KIND OF INFORMATION WOULD
UNDERMINE MODERN PENOLOGICAL PROCEDURAL POLICIES THAT HAVE BEEN
CAUTIOUSLY ADOPTED THROUGHOUT THE NATION AFTER CAREFUL CONSIDERATION
AND EXPERIMENTATION.  WE MUST RECOGNIZE THAT MOST OF THE INFORMATION
NOW RELIED UPON BY JUDGES TO GUIDE THEM IN THE INTELLIGENT IMPOSITION
OF SENTENCES WOULD BE UNAVAILABLE IF INFORMATION WERE RESTRICTED TO
THAT GIVEN IN OPEN COURT BY WITNESSES SUBJECT TO CROSS-EXAMINATION. 
AND THE MODERN PROBATION REPORT DRAWS ON INFORMATION CONCERNING EVERY
ASPECT OF A DEFENDANT'S LIFE.  FN15  THE TYPE AND EXTENT OF THIS
INFORMATION MAKE TOTALLY IMPRACTICAL IF NOT IMPOSSIBLE OPEN COURT
TESTIMONY WITH CROSS-EXAMINATION.  SUCH A PROCEDURE COULD ENDLESSLY
DELAY CRIMINAL ADMINISTRATION IN A RETRIAL OF COLLATERAL ISSUES. 

THE CONSIDERATIONS WE HAVE SET OUT ADMONISH US AGAINST TREATING THE
DUE PROCESS CLAUSE AS A UNIFORM COMMAND THAT COURTS THROUGHOUT THE
NATION ABANDON THEIR AGE-OLD PRACTICE OF SEEKING INFORMATION FROM OUT
OF-COURT SOURCES TO GUIDE THEIR JUDGMENT TOWARD A MORE ENLIGHTENED AND
JUST SENTENCE.  NEW YORK CRIMINAL STATUTES SET WIDE LIMITS FOR MAXIMUM
AND MINIMUM SENTENCES.  FN16 UNDER NEW YORK STATUTES A STATE JUDGE
CANNOT ESCAPE HIS GRAVE RESPONSIBILITY OF FIXING SENTENCE.  IN
DETERMINING WHETHER A DEFENDANT SHALL RECEIVE A ONE-YEAR MINIMUM OR A
TWENTY-YEAR MAXIMUM SENTENCE, WE DO NOT THINK THE FEDERAL CONSTITUTION
RESTRICTS THE VIEW OF THE SENTENCING JUDGE TO THE INFORMATION RECEIVED
IN OPEN COURT.  THE DUE PROCESS CLAUSE SHOULD NOT BE TREATED AS A
DEVICE FOR FREEZING THE EVIDENTIAL PROCEDURE OF SENTENCING IN THE MOLD
OF TRIAL PROCEDURE.  SO TO TREAT THE DUE PROCESS CLAUSE WOULD HINDER IF
NOT PRECLUDE ALL COURTS - STATE AND FEDERAL - FROM MAKING PROGRESSIVE
EFFORTS TO IMPROVE THE ADMINISTRATION OF CRIMINAL JUSTICE.    IT IS
URGED, HOWEVER, THAT WE SHOULD DRAW A CONSTITUTIONAL DISTINCTION AS TO
THE PROCEDURE FOR OBTAINING INFORMATION WHERE THE DEATH SENTENCE IS
IMPOSED.  WE CANNOT ACCEPT THE CONTENTION.  LEAVING A SENTENCING JUDGE
FREE TO AVAIL HIMSELF OF OUT-OF-COURT INFORMATION IN MAKING SUCH A
FATEFUL CHOICE OF SENTENCES DOES SECURE TO HIM A BROAD DISCRETIONARY
POWER, ONE SUSCEPTIBLE OF ABUSE.  BUT IN CONSIDERING WHETHER A RIGID
CONSTITUTIONAL BARRIER SHOULD BE CREATED, IT MUST BE REMEMBERED THAT
THERE IS POSSIBILITY OF ABUSE WHEREVER A JUDGE MUST CHOOSE BETWEEN LIFE
IMPRISONMENT AND DEATH.  AND IT IS CONCEDED THAT NO FEDERAL
CONSTITUTIONAL OBJECTION WOULD HAVE BEEN POSSIBLE IF THE JUDGE HERE HAD
SENTENCED APPELLANT TO DEATH BECAUSE APPELLANT'S TRIAL MANNER IMPRESSED
THE JUDGE THAT APPELLANT WAS A BAD RISK FOR SOCIETY, OR IF THE JUDGE
HAD SENTENCED HIM TO DEATH GIVING NO REASON AT ALL.  WE CANNOT SAY THAT
THE DUE PROCESS CLAUSE RENDERS A SENTENCE VOID MERELY BECAUSE A JUDGE
GETS ADDITIONAL OUT-OF-COURT INFORMATION TO ASSIST HIM IN THE EXERCISE
OF THIS AWESOME POWER OF IMPOSING THE DEATH SENTENCE. 

APPELLANT WAS FOUND GUILTY AFTER A FAIRLY CONDUCTED TRIAL.  HIS
SENTENCE FOLLOWED A HEARING CONDUCTED BY THE JUDGE.  UPON THE JUDGE'S
INQUIRY AS TO WHY SENTENCE SHOULD NOT BE IMPOSED, THE DEFENDANT MADE
STATEMENTS.  HIS COUNSEL MADE EXTENDED ARGUMENTS.  THE CASE WENT TO THE
HIGHEST COURT IN THE STATE, AND THAT COURT HAD POWER TO REVERSE FOR
ABUSE OF DISCRETION OR LEGAL ERROR IN THE IMPOSITION OF THE SENTENCE. 
FN17  THAT COURT AFFIRMED.  WE HOLD THAT APPELLANT WAS NOT DENIED DUE
PROCESS OF LAW.  FN18  AFFIRMED. 

FN1  "THE KILLING OF A HUMAN BEING, UNLESS IT IS EXCUSABLE OR
JUSTIFIABLE, IS MURDER IN THE FIRST DEGREE, WHEN COMMITTED: 

     .         .         .         .         . 

"2.  BY AN ACT IMMINENTLY DANGEROUS TO OTHERS, AND EVINCING A
DEPRAVED MIND, REGARDLESS OF HUMAN LIFE, ALTHOUGH WITHOUT A
PREMEDITATED DESIGN TO EFFECT THE DEATH OF ANY INDIVIDUAL; OR WITHOUT A
DESIGN TO EFFECT DEATH, BY A PERSON ENGAGED IN THE COMMISSION OF, OR IN
AN ATTEMPT TO COMMIT A FELONY, EITHER UPON OR AFFECTING THE PERSON
KILLED OR OTHERWISE  ...  "  NEW YORK PENAL LAW SEC. 1044. 

FN2  "MURDER IN THE FIRST DEGREE IS PUNISHABLE BY DEATH, UNLESS THE
JURY RECOMMENDS LIFE IMPRISONMENT AS PROVIDED BY SECTION TEN HUNDRED
FORTY-FIVE-A."  NEW YORK PENAL LAW SEC. 1045. 

"A JURY FINDING A PERSON GUILTY OF MURDER IN THE FIRST DEGREE, AS
DEFINED BY SUBDIVISION TWO OF SECTION TEN HUNDRED FORTY-FOUR, MAY, AS A
PART OF ITS VERDICT, RECOMMEND THAT THE DEFENDANT BE IMPRISONED FOR THE
TERM OF HIS NATURAL LIFE.  UPON SUCH RECOMMENDATION, THE COURT MAY
SENTENCE THE DEFENDANT TO IMPRISONMENT FOR THE TERM OF HIS NATURAL
LIFE."  NEW YORK PENAL LAW SEC. 1045-A. 

FN3  OTHER DUE PROCESS REQUIREMENTS MENTIONED IN THE OLIVER CASE WERE
THAT THE DEFENDANT SHOULD BE PERMITTED TO OFFER EVIDENCE IN HIS OWN
BEHALF AND BE REPRESENTED BY COUNSEL.  APPELLANT, HOWEVER, WAS
REPRESENTED BY COUNSEL BOTH WHEN TRIED AND SENTENCED, AND THE
SENTENCING JUDGE DID NOT DECLINE TO PERMIT INTRODUCTION OF ANY
EVIDENCE.  IN RESPONSE TO THE JUDGE'S INQUIRY, STATEMENTS WERE MADE BY
APPELLANT AND HIS COUNSEL. 

FN4  COURTS HAVE TREATED THE RULES OF EVIDENCE APPLICABLE TO THE
TRIAL PROCEDURE AND THE SENTENCING PROCESS DIFFERENTLY.  SEE, E.G.,
SNYDER V. MASSACHUSETTS, 291 U.S. 97, 107, 128-129; GRAHAM V. WEST
VIRGINIA, 224 U.S. 616, 619; UNITED STATES V. DALHOVER, 96 F.2D 355,
359-360.  BUT CF. STATE V. STEVENSON, 64 W. VA. 392, 62 S.E. 688. 

FN5  SEE CASES COLLECTED IN 14 AM. & ENG. ANN. CAS. 968, ET SEQ.; 77
A.L.R. 1211, ET SEQ.; 86 A.L.R. 832, ET SEQ. SEE ALSO NOTE, THE
ADMISSIBILITY OF CHARACTER EVIDENCE IN DETERMINING SENTENCE, 9 U. OF
CHI.  L. REV. 715(1942). 

FN6  SEE POUND, CRIMINAL JUSTICE IN AMERICA 178(1930). 

FN7  SEE STEPHAN V. UNITED STATES, 133 F.2D 87, 100.  SEE ALSO 18
U.S.C. SEC. 3655. 

FN8  MYERSON, VIEWS ON SENTENCING CRIMINALS, 7 LAW SOC. J. 854(1937);
GLUECK, PRINCIPLES OF A RATIONAL PENAL CODE, 41 HARV. L. REV.
453(1928); WARNER AND CABOT, ADMINISTRATION OF CRIMINAL JUSTICE, 50
HARV. L. REV. 583, 607(1937); COMMENT, REFORM IN FEDERAL PENAL
PROCEDURE, 53 YALE L.J. 773(1944). 

FN9  2 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (LEWIS' ED.
1897) 1756-1757. 

FN10  WITH RESPECT TO THIS POLICY IN THE ADMINISTRATION OF THE
PROBATION ACT THIS COURT HAS SAID:  "IT IS NECESSARY TO INDIVIDUALIZE
EACH CASE, TO GIVE THAT CAREFUL, HUMANE AND COMPREHENSIVE CONSIDERATION
TO THE PARTICULAR SITUATION OF EACH OFFENDER WHICH WOULD BE POSSIBLE
ONLY IN THE EXERCISE OF A BROAD DISCRETION."  BURNS V. UNITED STATES,
287 U.S. 216, 220.  IN PENNSYLVANIA V. ASHE, 302 U.S. 51, 55, THIS
COURT FURTHER STATED:  "FOR THE DETERMINATION OF SENTENCES, JUSTICE
GENERALLY REQUIRES CONSIDERATION OF MORE THAN THE PARTICULAR ACTS BY
WHICH THE CRIME WAS COMMITTED AND THAT THERE BE TAKEN INTO ACCOUNT THE
CIRCUMSTANCES OF THE OFFENSE TOGETHER WITH THE CHARACTER AND
PROPENSITIES OF THE OFFENDER."  AND SEE WOOD AND WAITE, CRIME AND ITS
TREATMENT 438-442(1941). 

FN11  WOOD AND WAITE, CRIME AND ITS TREATMENT 437(1941); ORFIELD,
CRIMINAL PROCEDURE FROM ARREST TO APPEAL 556-565(1947).  SEE, E.G.,
ILL. REV. STAT. C. 38, SEC. 802(1939); CAL. PEN.  CODE (DEERING, 1941)
SEC. 1168. 

FN12  GLUECK, PROBATION AND CRIMINAL JUSTICE 232(1933); NATIONAL
PROBATION ASSN., DIRECTORY OF PROBATION AND PAROLE OFFICERS 275(1947);
COOLEY, PROBATION AND DELINQUENCY (1927). 

FN13  JUDGE ULMAN WRITING ON THE TRIAL JUDGE'S DILEMMA DISCUSSES THE
PROBLEMS THAT CONFRONT THE SENTENCING JUDGE AND QUOTES FROM ONE OF HIS
COURT OPINIONS AS TO THE FACTORS THAT A JUDGE SHOULD CONSIDER IN
IMPOSING SENTENCE: 

"1ST.  THE PROTECTION OF SOCIETY AGAINST WRONG-DOERS. 

"2ND.  THE PUNISHMENT - OR MUCH BETTER - THE DISCIPLINE OF THE WRONG
DOER. 

"3RD.  THE REFORMATION AND REHABILITATION OF THE WRONG-DOER. 

"4TH.  THE DETERRENCE OF OTHERS FROM THE COMMISSION OF LIKE
OFFENSES. 

"IT SHOULD BE OBVIOUS THAT A PROPER DEALING WITH THESE FACTORS
INVOLVES A STUDY OF EACH CASE UPON AN INDIVIDUAL BASIS.  WAS THE CRIME
A CRIME AGAINST PROPERTY ONLY, OR DID IT INVOLVE DANGER TO HUMAN LIFE? 
WAS IT A CRIME OF SUDDEN PASSION OR WAS IT STUDIED AND DELIBERATE?  IS
THE CRIMINAL A MAN SO CONSTITUTED AND SO HABITUATED TO WAR UPON SOCIETY
THAT THERE IS LITTLE OR NO REAL HOPE THAT HE EVER CAN BE ANYTHING OTHER
THAN A MENACE TO SOCIETY - OR IS HE OBVIOUSLY AMENABLE TO
REFORMATION?"  GLUECK, PROBATION AND CRIMINAL JUSTICE 113(1933). 

SEE ALSO 12 ENCYC.  OF SOC. SCIENCE, PENAL INSTITUTIONS 57-64(1934). 

FN14  THE LATE FEDERAL JUDGE LEWIS B. SCHWELLENBACH IN HIS ARTICLE ON
THE DIFFICULTIES THAT CONFRONT A SENTENCING JUDGE WROTE:  "THE
KNOWLEDGE OF THE LIFE OF A MAN, HIS BACKGROUND AND HIS FAMILY, IS THE
ONLY PROPER BASIS FOR THE DETERMINATION AS TO HIS TREATMENT.  THERE IS
NO SUBSTITUTE FOR INFORMATION.  THE SENTENCING JUDGE IN THE FEDERAL
COURT HAS THE TOOLS WITH WHICH TO ACQUIRE THAT INFORMATION.  FAILURE TO
MAKE FULL USE OF THOSE TOOLS CANNOT BE JUSTIFIED."  SCHWELLENBACH,
INFORMATION VS. INTUITION IN THE IMPOSITION OF SENTENCE, 27 J. AM.
JUD.  SOC.  52(1943).  AND SEE MCGUIRE AND HOLTZOFF, THE PROBLEM OF
SENTENCE IN THE CRIMINAL LAW, 20 B.U.L. REV. 423(1940). 

FN15  A PUBLICATION CIRCULATED BY THE ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS CONTAINS A SUGGESTED FORM FOR ALL UNITED STATES
PROBATION REPORTS AND SERVES AS AN EXAMPLE OF THE TYPE OF INFORMATION
CONTAINED IN THE REPORTS.  THIS FORM CONSISTS OF THIRTEEN "MARGINAL
HEADINGS."  (1) OFFENSE; (2) PRIOR RECORD; (3) FAMILY HISTORY; (4) HOME
AND NEIGHBORHOOD; (5) EDUCATION; (6) RELIGION; (7) INTERESTS AND
ACTIVITIES; (8) HEALTH (PHYSICAL AND MENTAL); (9) EMPLOYMENT; (10)
RESOURCES; (11) SUMMARY; (12) PLAN; AND (13) AGENCIES INTERESTED.  EACH
OF THE HEADINGS IS FURTHER BROKEN DOWN INTO SUB-HEADINGS.  THE FORM
REPRESENTS A FRAMEWORK INTO WHICH INFORMATION CAN BE INSERTED TO GIVE
THE SENTENCING JUDGE A COMPOSITE PICTURE OF THE DEFENDANT. 
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, THE PRESENTENCE
INVESTIGATION REPORT, PUB. NO. 101(1943). 

FN16  A FEW NEW YORK CRIMINAL STATUTES WILL ILLUSTRATE THE BROAD
STATUTORY LIMITS WITHIN WHICH THE SENTENCING JUDGE MUST FIX A
DEFENDANT'S PENALTY.  ROBBERY IN THE FIRST DEGREE IS PUNISHABLE BY
IMPRISONMENT FOR NOT "LESS THAN TEN YEARS" NOR "MORE THAN THIRTY
YEARS."  NEW YORK PENAL LAW SEC. 2125.  RAPE IN THE FIRST DEGREE IS
"PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN TWENTY YEARS."  NEW YORK
PENAL LAW SEC. 2010.  BURGLARY IN THE FIRST DEGREE IS PUNISHABLE BY
IMPRISONMENT FROM TEN TO THIRTY YEARS, BURGLARY IN THE SECOND DEGREE
"FOR A TERM NOT EXCEEDING FIFTEEN YEARS."  NEW YORK PENAL LAW SEC.
407. 

FN17  PEOPLE V. STEIN, 96 MISC. 507, 161 N.Y.S. 1107; PEOPLE V. FOX,
202 N.Y. 616, 96 N.E. 1126; PEOPLE V. JOHNSON, 252 N.Y. 387, 393, 169
N.E. 619, 621.  AND SEE COMMONWEALTH V. JOHNSON, 348 PA. 349, 35 A.2D
312.  AS TO ENGLISH PROCEDURE SEE 28 CR. APP. R. 89, 90-91.  ALSO SEE
NOTE, RIGHT OF CRIMINAL OFFENDERS TO CHALLENGE REPORTS USED IN
DETERMINING SENTENCE, 49 COL. L. REV. 567(1949). 

FN18  WHAT WE HAVE SAID IS NOT TO BE ACCEPTED AS A HOLDING THAT THE
SENTENCING PROCEDURE IS IMMUNE FROM SCRUTINY UNDER THE DUE PROCESS
CLAUSE.  SEE TOWNSEND V. BURKE, 334 U.S. 736. 

MR. JUSTICE RUTLEDGE DISSENTS. 

MR. JUSTICE MURPHY, DISSENTING. 

A COMBINATION OF FACTORS IN THIS CASE IMPELS ME TO DISSENT. 

PETITIONER WAS CONVICTED OF MURDER BY A JURY, AND SENTENCED TO DEATH
BY THE JUDGE.  THE JURY WHICH HEARD THE TRIAL UNANIMOUSLY RECOMMENDED
LIFE IMPRISONMENT AS A SUITABLE PUNISHMENT FOR THE DEFENDANT.  THEY HAD
OBSERVED HIM THROUGHOUT THE TRIAL, HAD HEARD ALL THE EVIDENCE ADDUCED
AGAINST HIM, AND IN SPITE OF THE SHOCKING CHARACTER OF THE CRIME OF
WHICH THEY FOUND HIM GUILTY, WERE UNWILLING TO DECREE THAT HIS LIFE
SHOULD BE TAKEN.  IN OUR CRIMINAL COURTS THE JURY SITS AS THE
REPRESENTATIVE OF THE COMMUNITY; ITS VOICE IS THAT OF THE SOCIETY
AGAINST WHICH THE CRIME WAS COMMITTED.  A JUDGE, EVEN THOUGH VESTED
WITH STATUTORY AUTHORITY TO DO SO, SHOULD HESITATE INDEED TO INCREASE
THE SEVERITY OF SUCH A COMMUNITY EXPRESSION. 

HE SHOULD BE WILLING TO INCREASE IT, MOREOVER, ONLY WITH THE MOST
SCRUPULOUS REGARD FOR THE RIGHTS OF THE DEFENDANT.  THE RECORD BEFORE
US INDICATES THAT THE JUDGE EXERCISED HIS DISCRETION TO DEPRIVE A MAN
OF HIS LIFE, IN RELIANCE ON MATERIAL MADE AVAILABLE TO HIM IN A
PROBATION REPORT, CONSISTING ALMOST ENTIRELY OF EVIDENCE THAT WOULD
HAVE BEEN INADMISSIBLE AT THE TRIAL.  SOME, SUCH AS ALLEGATIONS OF
PRIOR CRIMES, WAS IRRELEVANT.  MUCH WAS INCOMPETENT AS HEARSAY.  ALL
WAS DAMAGING, AND NONE WAS SUBJECT TO SCRUTINY BY THE DEFENDANT. 

DUE PROCESS OF LAW INCLUDES AT LEAST THE IDEA THAT A PERSON ACCUSED
OF CRIME SHALL BE ACCORDED A FAIR HEARING THROUGH ALL THE STAGES OF THE
PROCEEDINGS AGAINST HIM.  I AGREE WITH THE COURT AS TO THE VALUE AND
HUMANENESS OF LIBERAL USE OF PROBATION REPORTS AS DEVELOPED BY MODERN
PENOLOGISTS, BUT, IN A CAPITAL CASE, AGAINST THE UNANIMOUS
RECOMMENDATION OF A JURY, WHERE THE REPORT WOULD CONCEDEDLY NOT HAVE
BEEN ADMISSIBLE AT THE TRIAL, AND WAS NOT SUBJECT TO EXAMINATION BY THE
DEFENDANT, I AM FORCED TO CONCLUDE THAT THE HIGH COMMANDS OF DUE
PROCESS WERE NOT OBEYED. 
..END :
























MORGANTOWN V. ROYAL INS. CO., 337 U.S. 254 


NO. 396.  ARGUED FEBRUARY 9, 1949.  - DECIDED JUNE 6, 1949.  - 169 F.2D
713, AFFIRMED. 


AN INSURER BROUGHT SUIT IN THE DISTRICT COURT FOR REFORMATION OF A
POLICY OF INSURANCE, ALLEGING THAT THE POLICY, THOUGH IN TERMS COVERING
LOSS BY FIRE, WAS MUTUALLY INTENDED TO COVER ONLY LOSS BY WINDSTORM. 
THE POLICYHOLDER, WHO HAD SUFFERED A LOSS BY FIRE, FILED A COUNTERCLAIM
UPON THE POLICY TO RECOVER THE AMOUNT OF THE LOSS; AND, UNDER RULE
38(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE, DEMANDED A JURY TRIAL. 
HELD:  AN ORDER OF THE DISTRICT COURT DENYING THE DEMAND FOR TRIAL BY
JURY WAS NOT APPEALABLE.  PP. 255-259. 

(A)  THE ORDER DENYING THE DEMAND FOR A JURY TRIAL IN THIS CASE WAS
NOT AN ORDER REFUSING AN INJUNCTION WITHIN THE MEANING OF 28 U.S.C.
SEC. 227(NOW SEC. 1292).  ENELOW V. NEW YORK LIFE INS. CO., 293 U.S.
379; ETTELSON V. METROPOLITAN LIFE INS. CO., 317 U.S. 188,
DISTINGUISHED.  PP. 256-258. 

(B)  NOTWITHSTANDING ITS IMPORTANCE AND ITS EFFECT ON THE LITIGATION,
THE ORDER DENYING A JURY TRIAL WAS INTERLOCUTORY IN FORM AND SUBSTANCE,
AND TO PERMIT AN APPEAL THEREFROM WOULD ENCOURAGE PIECEMEAL APPEALS. 
PP. 258-259. 

CITY OF MORGANTOWN V. ROYAL INSURANCE CO., LTD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

IN A SUIT IN THE DISTRICT COURT BY AN INSURER FOR REFORMATION OF A
POLICY OF INSURANCE ON THE GROUND OF MUTUAL MISTAKE, THE POLICYHOLDER
FILED A COUNTERCLAIM UPON THE POLICY TO RECOVER FOR A LOSS AND DEMANDED
A JURY TRIAL.  AN APPEAL FROM AN ORDER DENYING A JURY TRIAL WAS
DISMISSED BY THE COURT OF APPEALS.  169 F.2D 713.  THIS COURT GRANTED
CERTIORARI.  335 U.S. 890.  AFFIRMED, P. 259. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES TWO QUESTIONS:  THE APPEALABILITY OF AN ORDER
DENYING A DEMAND FOR TRIAL BY JURY IN A FEDERAL COURT, AND WHETHER THE
CONSTITUTIONAL RIGHT TO A JURY APPLIES TO THE TRIAL OF AN ISSUE OF
MUTUAL MISTAKE. 

THE FACTS ARE THESE.  PETITIONER IN AUGUST OF 1947 WAS CARRYING
INSURANCE WITH RESPONDENT ON A HANGAR AT ITS MUNICIPAL AIRPORT.  THE
POLICY BY ITS TERMS INSURED PETITIONER AGAINST LOSS BY FIRE OR
LIGHTNING IN THE AMOUNT OF $22,000.  ON AUGUST 20, THE HANGAR WAS
COMPLETELY DESTROYED BY FIRE.  PETITIONER FILED PROOF OF LOSS.  SHORTLY
THEREAFTER RESPONDENT INSTITUTED AN ACTION IN THE DISTRICT COURT FOR
THE NORTHERN DISTRICT OF WEST VIRGINIA FOR REFORMATION AND CORRECTION
OF THE POLICY.  IT ALLEGED IN SUBSTANCE THAT DURING THE PRECEDING YEAR
PETITIONER HAD CARRIED ONLY WINDSTORM INSURANCE ON THE HANGAR, IN THE
SAME AMOUNT; THAT THE POLICY CURRENTLY IN FORCE WAS INTENDED BY THE
PARTIES TO BE A RENEWAL OF THE PRIOR POLICY; THAT THE PREMIUM PAID WAS
THE SAME AS HAD BEEN PAID FOR WINDSTORM INSURANCE, AN AMOUNT MUCH LESS
THAN THE PREMIUM FOR FIRE INSURANCE; AND THE POLICY HAD BEEN WRITTEN AS
A FIRE POLICY THROUGH THE INADVERTENCE OF BOTH PARTIES AND DID NOT
EXPRESS THE INTENT OF EITHER.  IT PRAYED FOR REFORMATION TO CORRECT THE
MUTUAL MISTAKE AND FOR A DECLARATION OF NO LIABILITY FOR THE LOSS BY
FIRE.  PETITIONER ANSWERED, DENYING MISTAKE, AND FILED A COUNTERCLAIM
TO RECOVER ON THE POLICY AS WRITTEN.  RESPONDENT ANSWERED THE
COUNTERCLAIM, ALLEGING THE SAME FACTS AS IN ITS COMPLAINT.  PETITIONER
FILED A DEMAND FOR JURY TRIAL UNDER RULE 38(B); RESPONDENT MOVED TO
STRIKE THE DEMAND; THE COURT GRANTED THE MOTION AND SET THE CASE FOR
TRIAL TO THE COURT WITHOUT A JURY.  PETITIONER APPEALED FROM THIS
RULING.  ON MOTION OF RESPONDENT, THE COURT OF APPEALS DISMISSED THE
APPEAL, 169 F.2D 713, AND THE CASE IS HERE ON A WRIT OF CERTIORARI. 
335 U.S. 890. 

IN THIS POSTURE OF THE CASE, WE ARE FIRST CONFRONTED WITH THE
QUESTION OF THE APPEALABILITY OF THE TRIAL COURT'S ORDER DENYING JURY
TRIAL.  NOT BEING A FINAL DECISION, IT IS APPEALABLE, IF AT ALL, ONLY
AS AN INTERLOCUTORY DECREE GRANTING OR REFUSING AN INJUNCTION UNDER
SEC. 129 OF THE JUDICIAL CODE (28 U.S.C. SEC. 227).  FN1  PETITIONER
URGES ENELOW V. NEW YORK LIFE INS. CO., 293 U.S. 379, AND ETTELSON V.
METROPOLITAN LIFE INS. CO., 317 U.S. 188, UPON US AS CONCLUSIVE IN
FAVOR OF APPEALABILITY.  IN EACH OF THOSE CASES, THE PLAINTIFF HAD
COMMENCED AN ACTION TO RECOVER ACCORDING TO THE TERMS OF AN INSURANCE
POLICY; IN EACH OF THEM THE INSURANCE COMPANY DENIED LIABILITY,
ALLEGING FRAUD IN THE PROCUREMENT OF THE POLICY, AND MOVED THAT THE
ISSUE OF FRAUD BE TRIED TO THE COURT WITHOUT A JURY.  THE TRIAL COURT
IN EACH CASE GRANTED THE MOTION, AND THIS COURT HELD ON REVIEW THAT THE
RULINGS THUS MADE WERE APPEALABLE UNDER SEC. 129. 

THE SUBSTANCE OF SEC. 129 HAS BEEN A PART OF FEDERAL LAW SINCE 1891,
26 STAT. 828, AND ITS RELATION TO OTHER ASPECTS OF PROCEDURE HAS NOT
BEEN RIGID.  SINCE 1912 THE HISTORY OF THE LAW GOVERNING PROCEDURE IN
THE FEDERAL COURTS HAS MANIFESTED A SLOW BUT CONSISTENT PROCESS OF
COALESCING OF THE PRACTICE IN THE LAW AND EQUITY SIDES OF THE COURTS. 
IN THAT YEAR THIS COURT ADOPTED NEW EQUITY RULES, OF WHICH RULE 22 AND
RULE 23 MADE A SIGNIFICANT START IN PROCEDURAL UNIFICATION.  A MAJOR
STEP OCCURRED IN 1915, WITH THE ENACTMENT OF THE LAW AND EQUITY ACT, 38
STAT. 956, WHICH ADDED SECS. 274(A) AND 274(B) TO THE JUDICIAL CODE. 
THE NET EFFECT OF THESE ADDITIONS WAS TO ALLOW TRANSFER OF ACTION BEGUN
ON EITHER SIDE OF THE COURT TO THE OTHER SIDE, WITHOUT THE NECESSITY OF
COMMENCING A NEW ACTION, TO PERMIT DETERMINATION OF LAW QUESTIONS
ARISING IN EQUITY ACTIONS IN THOSE ACTIONS, AND TO ALLOW EQUITABLE
DEFENSES TO BE OFFERED AND EQUITABLE RELIEF TO BE GRANTED IN AN ACTION
AT LAW. 

IN THIS STATE OF A PARTLY BLENDED LAW AND EQUITY PROCEDURE AROSE THE
ENELOW CASE, SUPRA.  THE COURT THERE HELD, WITH REGARD TO AN ORDER
DENYING TRIAL BY JURY, THAT BY ANALOGY TO PRACTICE AT COMMON LAW THE
ORDER WAS ONE GRANTING AN INJUNCTION WITHIN THE MEANING OF SEC. 129. 

THE COALESCING OF LAW AND EQUITY PROCEDURE WAS COMPLETED IN 1938,
WITH THE ADOPTION OF THE RULES OF CIVIL PROCEDURE.  THEIR PURPOSE,
AMONG OTHERS, WAS "TO SECURE THE JUST, SPEEDY, AND INEXPENSIVE
DETERMINATION OF EVERY ACTION," AND TO THAT END THEY PRESCRIBED
IDENTICAL PROCEDURE FOR ALL ACTIONS, WHETHER COGNIZABLE FORMERLY AT LAW
OR IN EQUITY.  AFTER THEIR ADOPTION, THE IDENTICAL PROBLEM PRESENTED BY
THE ENELOW CASE AROSE IN ETTELSON V. METROPOLITAN LIFE INS. CO., SUPRA.
IT WAS ARGUED THAT THE ADOPTION OF THE RULES HAD SO UNIFIED THE
FEDERAL PROCEDURE THAT THE TYPE OF ORDER IN QUESTION COULD NO LONGER BE
CONSIDERED AN INJUNCTION AND APPEALABLE.  WE HELD THE ORDER APPEALABLE,
SINCE THE RULES HAD NOT CHANGED ITS SUBSTANTIAL EFFECT, NOTING THAT THE
POSITION OF THE PARTIES WAS THE SAME AS IT WOULD HAVE BEEN IF A STATE
EQUITY COURT HAD ENJOINED AN ACTION AT LAW. 

WHATEVER THE PRESENT VALIDITY OF THE ANALOGY TO COMMON-LAW PRACTICE
WHICH SUPPORTED THOSE CASES, IT IS OF NO HELP HERE.  THIS IS NOT A
SITUATION WHERE A "CHANCELLOR" IN DENYING A DEMAND FOR JURY TRIAL CAN
BE SAID TO BE ENJOINING A "JUDGE" WHO HAS COGNIZANCE OF A PENDING
ACTION AT LAW.  THIS IS RATHER A CASE OF A JUDGE MAKING A RULING AS TO
THE MANNER IN WHICH HE WILL TRY ONE ISSUE IN A CIVIL ACTION PENDING
BEFORE HIMSELF.  THE FICTION OF A COURT WITH TWO SIDES, ONE OF WHICH
CAN STAY PROCEEDINGS IN THE OTHER, IS NOT APPLICABLE WHERE THERE IS NO
OTHER PROCEEDING IN EXISTENCE TO BE STAYED.  THE RULING FROM WHICH THE
APPEAL IN THIS CASE WAS PROSECUTED IS AN ORDER INTERLOCUTORY IN FORM
AND SUBSTANCE.  NOTHING IN THE LANGUAGE OF THE RULES OR THE JUDICIAL
CODE BRINGS IT WITHIN THE CLASS OF APPEALABLE DECISIONS, AND
DISTINCTIONS FROM COMMON-LAW PRACTICE WHICH SUPPORTED OUR CONCLUSIONS
IN THE ENELOW AND ETTELSON CASES SUPPLY NO ANALOGY COMPETENT TO MAKE AN
INJUNCTION OF WHAT IN ANY ORDINARY UNDERSTANDING OF THE WORD IS NOT
ONE. 

TRIAL BY JURY IS A VITAL AND CHERISHED RIGHT, INTEGRAL IN OUR
JUDICIAL SYSTEM.  IT IS ARGUED THAT THE IMPORTANCE OF AN INTERLOCUTORY
ORDER DENYING OR GRANTING JURY TRIAL IS SUCH THAT IT SHOULD BE
APPEALABLE.  MANY INTERLOCUTORY ORDERS ARE EQUALLY IMPORTANT, AND MAY
DETERMINE THE OUTCOME OF THE LITIGATION, BUT THEY ARE NOT FOR THAT
REASON CONVERTED INTO INJUNCTIONS.  THE CONSTITUTION GUARANTEES TO
LITIGANTS IN THE FEDERAL COURTS THE RIGHT TO HAVE THEIR CASES TRIED BY
JURIES, AND RULE 38 OF THE RULES OF CIVIL PROCEDURE EXPLICITLY
IMPLEMENTS THAT GUARANTEE.  DENIAL OF THE RIGHT IN A CASE WHERE THE
DEMANDING PARTY IS ENTITLED TO IT IS OF COURSE ERROR.  THE RULINGS OF
THE DISTRICT COURTS GRANTING OR DENYING JURY TRIALS ARE SUBJECT TO THE
MOST EXACTING SCRUTINY ON APPEAL. 

BUT PIECEMEAL APPEALS HAVE NEVER BEEN ENCOURAGED.  THE GROWTH OF THE
LAW OF PROCEDURE IN THE UNITED STATES DURING THE LAST HALF-CENTURY HAS
BEEN STEADILY IN THE DIRECTION OF SIMPLICITY AND DIRECTNESS IN THE
ADMINISTRATION OF JUSTICE.  TO THAT END, AND WITH CAREFUL REGARD FOR
THE CONSTITUTIONAL RIGHTS OF THE PARTIES, THIS COURT, PURSUANT TO
SPECIFIC AUTHORIZATION BY CONGRESS, ADOPTED THE RULES OF CIVIL
PROCEDURE, ABOLISHING PROCEDURAL DISTINCTIONS BETWEEN LAW AND EQUITY
AND ESTABLISHING A SINGLE UNIFIED PRACTICE.  WE WOULD ILL SERVE THE
STATED PURPOSES OF THE RULES OF CIVIL PROCEDURE WERE WE TO PERPETUATE
BY ANALOGY DISTINCTIONS WHICH THE RULES EXPRESSLY DISAVOW.  THE COURT
OF APPEALS WAS CORRECT IN DISMISSING THE APPEAL AND ITS JUDGMENT IS
AFFIRMED. 

WITH THE CASE DISPOSED OF IN THIS MANNER, WE DO NOT REACH THE SECOND
QUESTION PRESENTED: WHETHER PETITIONER IS ENTITLED TO A JURY ON THE
ISSUE OF MUTUAL MISTAKE.  AFFIRMED. 

FN1  "WHERE  ...  AN INJUNCTION IS GRANTED, CONTINUED, MODIFIED,
REFUSED, OR DISSOLVED BY AN INTERLOCUTORY ORDER OR DECREE, OR AN
APPLICATION TO DISSOLVE OR MODIFY AN INJUNCTION IS REFUSED, ...  AN
APPEAL MAY BE TAKEN FROM SUCH INTERLOCUTORY ORDER OR DECREE  ...  "
THE SUBSTANCE OF THIS PROVISION HAS BEEN RETAINED IN REVISED TITLE 28,
U.S.C. SEC. 1292, 62 STAT. 869. 

MR. JUSTICE BURTON CONCURS IN THE JUDGMENT OF THE COURT. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

ON OCCASION A PROBLEM ARISES WHICH CALLS FOR A MORE DISCRIMINATING
ANALYSIS THAN IS CONVEYED BY THE PHRASE "LAW AND EQUITY ARE NOW FUSED"
TO INDICATE THE PROCEDURAL DEVELOPMENT WHEREBY AN ACTION AT LAW AND A
SUIT IN EQUITY IN RELATION TO IT MAY BE DISPOSED OF IN A SINGLE
LITIGATION.  IN THIS CASE, THE DEEPLY ROOTED HISTORICAL DISTINCTION
BETWEEN AN ACTION AT LAW AND A SUIT IN EQUITY BECOMES DECISIVE.  SINCE
I WOULD NOT REVERSE OR IMPAIR THE RULING IN ENELOW V. NEW YORK LIFE
INS. CO., 293 U.S. 379, AND ETTELSON V. METROPOLITAN LIFE INS. CO., 317
U.S. 188, I SHOULD LIKE TO ADD A FEW WORDS TO THE COURT'S OPINION, IN
WHICH I JOIN, TO MAKE CLEAR WHY THE PRESENT DECISION LEAVES THOSE
DECISIONS UNIMPAIRED. 

IN THE TWO EARLIER CASES AN ACTION AT LAW WAS BROUGHT ON AN INSURANCE
POLICY.  OF COURSE THIS ENTITLED THE PLAINTIFF TO A TRIAL BY JURY.  THE
DEFENDANT ASKED FOR A CANCELLATION OF THE POLICY BECAUSE OF FRAUD.  THE
DISTRICT COURT ENTERED AN ORDER SUSPENDING THE ACTION AT LAW, TO BE
TRIED BY A JURY, UNTIL THE LATER-BEGUN EQUITABLE PROCEEDING - TRIAL
WITHOUT A JURY - WAS CONCLUDED.  THIS COURT WAS CALLED UPON TO CONSTRUE
SEC. 129 OF THE JUDICIAL CODE ALLOWING APPEALS IN LIMITED CATEGORIES OF
INTERLOCUTORY DECISIONS.  28 U.S.C. SEC. 227, NOW SEC. 1292.  WITH DUE
REGARD TO THE ACTUALITIES OF THE SITUATION, THE COURT HELD THAT THE
STAYING OF AN ACTION AT LAW BY THE CHANCELLOR IS AN INTERLOCUTORY
INJUNCTION AND AS SUCH APPEALABLE, EVEN THOUGH THE CHANCELLOR WHO
GRANTED SUCH AN INTERLOCUTORY ORDER BE THE SAME JUDGE BEFORE WHOM THE
EARLIER ACTION AT LAW WAS PENDING.  THE GROUND OF THE DECISION IN THE
ENELOW CASE LEAVES NO DOUBT AS TO ITS SCOPE.  SECTION 129 OF THE
JUDICIAL CODE, WROTE MR. CHIEF JUSTICE HUGHES FOR THE COURT, 

"  ...  CONTEMPLATES INTERLOCUTORY ORDERS OR DECREES WHICH CONSTITUTE
AN EXERCISE OF EQUITABLE JURISDICTION IN GRANTING OR REFUSING AN
INJUNCTION, AS DISTINGUISHED FROM A MERE STAY OF PROCEEDINGS WHICH A
COURT OF LAW, AS WELL AS A COURT OF EQUITY, MAY GRANT IN A CAUSE
PENDING BEFORE IT BY VIRTUE OF ITS INHERENT POWER TO CONTROL THE
PROGRESS OF THE CAUSE SO AS TO MAINTAIN THE ORDERLY PROCESSES OF
JUSTICE.  THE POWER TO STAY PROCEEDINGS IN ANOTHER COURT APPERTAINS
DISTINCTIVELY TO EQUITY IN THE ENFORCEMENT OF EQUITABLE PRINCIPLES, AND
THE GRANT OR REFUSAL OF SUCH A STAY BY A COURT OF EQUITY OF PROCEEDINGS
AT LAW IS A GRANT OR REFUSAL OF AN INJUNCTION WITHIN THE MEANING OF
SEC. 129.  AND, IN THIS ASPECT, IT MAKES NO DIFFERENCE THAT THE TWO
CASES, THE SUIT IN EQUITY FOR AN INJUNCTION AND THE ACTION AT LAW IN
WHICH PROCEEDINGS ARE STAYED, ARE BOTH PENDING IN THE SAME COURT  ...
"  293 U.S. AT 381-82. 

IN THIS CASE THE PLAINTIFF INSTITUTED A SUIT IN EQUITY FOR THE
REFORMATION OF AN INSTRUMENT.  THE INSURED, BY WAY OF COUNTERCLAIM,
CONTESTED THAT SUIT AND, IN ADDITION, SOUGHT RECOVERY ON THE POLICY. 
THE LATTER WAS A CONVENTIONAL ACTION AT LAW WHICH, UNDER THE
CONSTITUTION, ENTITLED THE DEFENDANT TO A JURY TRIAL.  THE JUDGE
CONTINUED THIS ACTION AT LAW UNTIL THE PRIOR EQUITABLE PROCEEDING COULD
BE CONCLUDED.  THE FACTS, THEREFORE, ARE PRECISELY THE OPPOSITE OF
THOSE IN THE ENELOW CASE.  HERE THERE WAS NO INTERVENTION BY A COURT OF
EQUITY IN PROCEEDINGS AT LAW, BUT "A MERE STAY OF PROCEEDINGS WHICH A
COURT OF LAW, AS WELL AS A COURT OF EQUITY, MAY GRANT IN A CAUSE
PENDING BEFORE IT BY VIRTUE OF ITS INHERENT POWER TO CONTROL THE
PROGRESS OF THE CAUSE SO AS TO MAINTAIN THE ORDERLY PROCESSES OF
JUSTICE."  293 U.S. AT 381-82.  SINCE AN INTERLOCUTORY PROCEEDING IN AN
ACTION AT LAW CANNOT POSSIBLY BE BROUGHT WITHIN THE LIMITED CLASS OF
APPEALABLE INTERLOCUTORY DECISIONS UNDER THE OLD SEC. 129 OF THE
JUDICIAL CODE (NOW 28 U.S.C. SEC. 1292), THERE IS AN END TO THE
MATTER. 

A LAYMAN MAY SEE NO DIFFERENCE BETWEEN THE POSTPONEMENT BY A TRIAL
JUDGE OF AN ACTION AT LAW, AND THE POSTPONEMENT OF SUCH AN ACTION BY AN
EQUITABLE PROCEEDING RESULTING IN AN INTERLOCUTORY INJUNCTION.  BUT THE
CONGRESS HAS SEEN FIT TO ALLOW AN APPEAL FROM ONE SUCH RESULT AND NOT
FROM THE OTHER.  NONAPPEALABILITY OF INTERMEDIATE ORDERS IN THE FEDERAL
COURTS HAS BEEN A DEEP-ROOTED GENERAL PRINCIPLE LIMITING THOSE COURTS
SINCE THEIR ESTABLISHMENT.  A VERY FEW TYPES OF INTERLOCUTORY ORDERS
ARE APPEALABLE.  THE ENELOW AND ETTELSON CASES PRESENTED AN ORDER THAT
WAS APPEALABLE BECAUSE IT WAS A STAY BY A COURT OF EQUITY OF A COMMON
LAW ACTION.  THIS IS NOT SUCH A STAY, AND IN AFFIRMING THE JUDGMENT THE
COURT LEAVES ENELOW AND ETTELSON UNTOUCHED.    MR. JUSTICE BLACK, WITH
WHOM MR. JUSTICE RUTLEDGE CONCURS, DISSENTING. 

I THINK IT AN UNDESIRABLE PRACTICE FOR THIS COURT TO OVERRULE PAST
CASES WITHOUT SAYING SO.  THE EFFECT OF THE COURT'S HOLDING HERE IS TO
OVERRULE ETTELSON V. METROPOLITAN INS. CO., 317 U.S. 188, DECIDED BY A
UNANIMOUS COURT IN 1942.  THE COURT'S HOLDING TODAY REJECTS THE
INTERPRETATION OF SEC. 129 OF THE JUDICIAL CODE (28 U.S.C. SEC. 227, AS
AMENDED 28 U.S.C. SEC. 1292) GIVEN THAT SECTION IN THE ETTELSON CASE
AND IN ENELOW V. NEW YORK LIFE INS. CO., 293 U.S. 379.  AND TO SUPPORT
ITS NEW INTERPRETATION OF THAT SECTION THE COURT NOW ADOPTS REASONS AND
ARGUMENTS THAT WERE EXPRESSLY URGED AND EXPRESSLY REJECTED IN THE
ENELOW AND ETTELSON CASES. 

TODAY THE COURT BRUSHES ASIDE THE ENELOW AND ETTELSON CASES, IMPLYING
THAT THIS, UNLIKE EITHER OF THE OTHER TWO, IS "A CASE OF A JUDGE MAKING
A RULING AS TO THE MANNER IN WHICH HE WILL TRY ONE ISSUE IN A CIVIL
ACTION PENDING BEFORE HIMSELF."  BUT THIS WAS TRUE IN THE ENELOW AND
ETTELSON CASES.  IN THE ENELOW CASE THE COURT SAID AT P. 382 THAT "IT
MAKES NO DIFFERENCE THAT THE TWO CASES  ...  ARE BOTH PENDING IN THE
SAME COURT, IN VIEW OF THE ESTABLISHED DISTINCTION BETWEEN 'PROCEEDINGS
AT LAW AND PROCEEDINGS IN EQUITY IN THE NATIONAL COURTS AND BETWEEN THE
POWERS OF THOSE COURTS WHEN SITTING AS COURTS OF LAW AND WHEN SITTING
AS COURTS OF EQUITY.'"  THE COURT ALSO IMPLIES THAT THIS CASE CAN BE
DISTINGUISHED FROM THE ENELOW AND ETTELSON CASES BECAUSE THE ORDER IN
THIS CASE IS "INTERLOCUTORY IN FORM AND SUBSTANCE."  BUT THIS WAS TRUE
IN THE ENELOW AND ETTELSON CASES.  IN THE ENELOW CASE THE COURT SAID AT
P. 383, THAT "ALTHOUGH INTERLOCUTORY, IT (THE ORDER) WAS APPEALABLE
...  UNDER SEC. 129."  IN THE ENELOW CASE THE ORDER OF THE TRIAL COURT
HELD APPEALABLE (P. 381) REQUIRED HEARING OF THE EQUITABLE ISSUE RAISED
"IN ADVANCE OF THE TRIAL BY JURY AT LAW OF ANY PURELY LEGAL ISSUES." 
THAT WAS PRECISELY THE EFFECT OF THE TRIAL COURT'S ORDER IN THIS CASE;
IT REQUIRED HEARING OF THE EQUITABLE ISSUE OF REFORMATION IN ADVANCE OF
A TRIAL BY JURY OF THE LEGAL ISSUES RAISED BY THE COUNTERCLAIM.  TODAY
THE COURT SAYS THIS ORDER IS NOT AN "INJUNCTION  ...  IN ANY ORDINARY
UNDERSTANDING OF THE WORD  ...  "  IN THE ENELOW CASE THIS COURT SAID
THAT SUCH AN ORDER "IN EFFECT GRANTS OR REFUSES AN INJUNCTION  ...  "
(P. 383). 

THE COURT TODAY SEEMS TO REST ITS DEPARTURE FROM THE ENELOW CASE ON
THE FEDERAL RULES OF CIVIL PROCEDURE AND THEIR PURPOSE AS SET OUT IN
RULE 1 "TO SECURE THE JUST, SPEEDY, AND INEXPENSIVE DETERMINATION OF
EVERY ACTION."  THE ETTELSON CASE, SUPRA, CAME TO THIS COURT AFTER
ADOPTION OF THESE RULES.  THE INSURANCE COMPANY THERE SPECIFICALLY
POINTED TO RULE 1 AS A REASON WHY THIS COURT SHOULD NOT FOLLOW THE
ENELOW CASE.  WE UNANIMOUSLY REJECTED THE CONTENTION.  WE POINTED OUT
AT P. 191 THAT "AS IN THE ENELOW CASE  ...  THE RESULT OF THE DISTRICT
JUDGE'S ORDER IS THE POSTPONEMENT OF TRIAL OF THE JURY ACTION BASED
UPON THE (INSURANCE) POLICIES; AND IT MAY, IN PRACTICAL EFFECT,
TERMINATE THAT ACTION.  IT IS AS EFFECTIVE IN THESE RESPECTS AS AN
INJUNCTION ISSUED BY A CHANCELLOR.  ...  THE PLAINTIFFS ARE  ...  IN NO
DIFFERENT POSITION THAN IF A STATE EQUITY COURT HAD RESTRAINED THEM
FROM PROCEEDING IN THE LAW ACTION.  NOR ARE THEY DIFFERENTLY
CIRCUMSTANCED THAN WAS THE PLAINTIFF IN THE ENELOW CASE.  THE RELIEF
AFFORDED BY SEC. 129 IS NOT RESTRICTED BY THE TERMINOLOGY USED.  THE
STATUTE LOOKS TO THE SUBSTANTIAL EFFECT OF THE ORDER MADE." 

THUS DESPITE OUR UNANIMOUS REJECTION OF THE CONTENTION IN ETTELSON
THE COURT NOW HOLDS THAT THE RULES OF CIVIL PROCEDURE HAVE DISPLACED
BOTH THE ENELOW AND ETTELSON INTERPRETATION OF SEC. 129 OF THE JUDICIAL
CODE.  THE BASIS FOR OVERRULING THE ENELOW AND ETTELSON CASES APPEARS
TO BE THE COURT'S HOSTILITY TO "PIECEMEAL APPEALS" AND THE COURT'S
BELIEF THAT OVERRULING THE TWO CASES WILL PROMOTE "SIMPLICITY AND
DIRECTNESS IN THE ADMINISTRATION OF JUSTICE."  BUT TO GRANT APPEAL HERE
WOULD NOT SUSTAIN APPEALS FROM EVERY ADVERSE RULING MADE IN THE PROCESS
OF A TRIAL.  DENIAL OF TRIAL BY JURY IS NOT TO BE CLASSIFIED WITH
ORDINARY TRIAL ERRORS, SUCH AS AN ADMISSION OR REJECTION OF EVIDENCE. 
THE QUESTION HERE RELATES TO THE WHOLE TRIAL OF THE ISSUES INVOLVED:
WHAT TRIBUNAL SHALL HEAR AND RESOLVE THE EVIDENCE, JUDGE OR JURY?  AND
NEITHER SIMPLICITY NOR DIRECTNESS OF JUDICIAL ADMINISTRATION ARE
NECESSARILY FURTHERED BY COMPELLING TWO TRIALS WHERE ONE WOULD
SUFFICE.  MOREOVER, THERE IS MUCH TO BE SAID AGAINST THE IDEA OF
INFLEXIBLY BARRING APPEALS IN REGARD TO ALLEGED SUBSTANTIAL ERRORS THAT
MAY FATALLY INVALIDATE AN ENTIRE TRIAL PROCEDURE.* 

*MOORE AND VESTAL, PRESENT AND POTENTIAL ROLE OF CERTIFICATION IN
FEDERAL APPELLATE PROCEDURE, 35 VA. L. REV. 1(1949); SEE DISSENTING
OPINION BY JUDGE FRANK IN AMERICAN MACHINE AND METALS, INC. V. DE
BOTHEZAT IMPELLER CO., 173 F.2D 890. 

IN CONSIDERING WHETHER THE DOGMA AGAINST "PIECEMEAL APPEALS" IS TO BE
UNDULY EXALTED IN THIS CASE WE SHOULD NOT LOSE SIGHT OF THE FACT THAT
THE BILL OF RIGHTS GUARANTEES TRIAL BY JURY IN APPROPRIATE CASES.  HAD
PETITIONER HERE FILED A COMMON-LAW SUIT ON ITS POLICY IN A STATE COURT
IT WOULD HAVE BEEN ENTITLED TO TRIAL BY JURY.  IN THAT EVENT THE
FEDERAL COURT COULD HAVE RESTRAINED TRIAL, IF AT ALL, ONLY BY AN
INJUNCTION, WHICH CONFESSEDLY WOULD HAVE BEEN APPEALABLE UNDER SEC.
129.  BUT UNDER RULES 2 AND 13(A) OF THE FEDERAL RULES OF CIVIL
PROCEDURE PETITIONER WAS COMPELLED TO SUE ON ITS POLICY BY FILING
COUNTERCLAIM IN THE FEDERAL COURT.  CF. AMERICAN MILLS CO. V. AMERICAN
SURETY CO., 260 U.S. 360, 364, 366.  BECAUSE OF THAT FEDERAL COMPULSION
THE COURT NOW PENALIZES PETITIONER BY DENYING IT A RIGHT OF APPEAL.  AS
A RESULT, PETITIONER'S ALLEGED CONSTITUTIONAL RIGHT TO HAVE THE FACTS
OF ITS CASE DETERMINED BY A JURY IS AT LEAST POSTPONED.  THERE ARE MANY
PRIOR DECISIONS OF THIS COURT THAT JUSTIFY A MORE CONSIDERATE TREATMENT
OF CONTENTIONS THAT INVOKE THE BILL OF RIGHTS GUARANTEE OF TRIAL BY
JURY.  SEE, E.G., SCOTT V. NEELY, 140 U.S. 106, 109, 110; INSURANCE CO.
V. BAILEY, 13 WALL.  616. 
..END :












COMMUNICATIONS COMM'N V. WJR, 337 U.S. 265 


NO. 495.  ARGUED APRIL 22, 1949.  - DECIDED JUNE 6, 1949.  - 84 U.S.
APP. D.C. 1, 174 F.2D 226, REVERSED. 


WITHOUT NOTICE TO RADIO STATION WJR, WHICH WAS LICENSED AS A CLASS I
STATION, THE FEDERAL COMMUNICATIONS COMMISSION GRANTED ANOTHER PARTY AN
APPLICATION FOR A PERMIT TO CONSTRUCT A CLASS II STATION TO BROADCAST
ON THE SAME FREQUENCY PREVIOUSLY USED EXCLUSIVELY BY WJR.  ALLEGING
THAT THE NEW STATION WOULD CAUSE "OBJECTIONABLE INTERFERENCE" WITH ITS
BROADCAST SIGNAL, WJR PETITIONED FOR RECONSIDERATION OF THE APPLICATION
AND FOR A HEARING TO WHICH IT MIGHT BE MADE A PARTY OR, IN THE
ALTERNATIVE, THAT FINAL ACTION ON THE APPLICATION BE POSTPONED UNTIL
THE CONCLUSION OF A PENDING "CLEAR CHANNEL" PROCEEDING, IN WHICH THE
COMMISSION WAS CONSIDERING ALLOWING WJR AND OTHER STATIONS TO INCREASE
THEIR POWER.  THE APPLICANT CHALLENGED THE LEGAL SUFFICIENCY OF WJR'S
PETITION ON THE GROUND THAT WJR HAD NOT SET FORTH FACTS WHICH, IF
ACCEPTED AS TRUE, WOULD CONSTITUTE INTERFERENCE WITH WJR'S "NORMALLY
PROTECTED CONTOUR."  THE COMMISSION DENIED WJR'S PETITION WITHOUT ORAL
ARGUMENT.  HELD: 

1.  THE COMMISSION WAS UNDER NO DUTY TO WJR TO POSTPONE FINAL ACTION
ON THE APPLICATION FOR THE PERMIT UNTIL IT HAD DISPOSED OF THE "CLEAR
CHANNEL" PROCEEDING.  P. 272. 

2.  THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT DID NOT REQUIRE
THAT THE COMMISSION AFFORD WJR AN OPPORTUNITY FOR ORAL ARGUMENT UPON
ITS PETITION FOR RECONSIDERATION OF THE APPLICATION.  PP. 272-285. 

(A)  PROCEDURAL DUE PROCESS UNDER THE FIFTH AMENDMENT DOES NOT
REQUIRE THAT AN OPPORTUNITY FOR ORAL ARGUMENT BE AFFORDED ON EVERY
QUESTION OF LAW RAISED BEFORE A JUDICIAL OR QUASI-JUDICIAL TRIBUNAL,
EXCEPTING SUCH QUESTIONS AS MAY BE INVOLVED IN INTERLOCUTORY ORDERS. 
PP. 274-277. 

(B)  THE PROCEDURE PROVIDED BY CONGRESS IN THE COMMUNICATIONS ACT,
FOR DETERMINATION OF THE QUESTIONS RAISED BY WJR, IS NOT LACKING IN DUE
PROCESS.  PP. 277-285. 

(C)  THE PROVISION OF SEC. 409(A) FOR ORAL ARGUMENT BEFORE THE
COMMISSION IN PROCEEDINGS HEARD INITIALLY BEFORE AN EXAMINER IS
INAPPLICABLE HERE, SINCE THIS PROCEEDING WAS NOT HEARD OR ASSIGNED FOR
HEARING IN THE FIRST INSTANCE BEFORE AN EXAMINER AND WJR'S CLAIMED
RIGHT OF PARTICIPATION ARISES UNDER SEC. 312(B).  PP. 277-278. 

(D)  BY SECS. 312(B) AND 4(J), CONGRESS HAS COMMITTED TO THE
COMMISSION'S DISCRETION THE QUESTIONS WHETHER AND UNDER WHAT
CIRCUMSTANCES IT WILL ALLOW OR REQUIRE ORAL ARGUMENT, EXCEPT WHERE THE
ACT EXPRESSLY REQUIRES IT.  PP. 281-282. 

(E)  THE PROVISION OF SEC. 312(B) FOR "REASONABLE OPPORTUNITY TO SHOW
CAUSE" IS NOT TO BE CONSTRUED AS ALWAYS INCLUDING OPPORTUNITY FOR ORAL
ARGUMENT.  PP. 282-283. 

(F)  THIS COURT CAN NOT SAY THAT THE COMMISSION ABUSED ITS DISCRETION
IN DETERMINING WJR'S PETITION ON THE WRITTEN SUBMISSION.  P. 284. 

3.  IT WAS ERROR FOR THE COURT OF APPEALS TO DECLINE TO DECIDE THE
MERITS OF THE QUESTION WHETHER WJR'S PETITION STATED A LEGALLY
SUFFICIENT CASE OF (INDIRECT) MODIFICATION OF ITS LICENSE WITHIN THE
TERMS OF SEC. 312(B), AS WELL AS TO DECIDE, WITHOUT DETERMINING THAT
QUESTION, THAT WJR WAS ENTITLED TO BE MADE A PARTY TO AND PARTICIPATE
AS SUCH IN THE PROCEEDINGS ON THE APPLICATION.  P. 284. 

4.  THE CAUSE IS REMANDED TO THE COURT OF APPEALS FOR DECISION OF THE
BASIC ISSUE ON THE MERITS, UNCOMPLICATED BY QUESTIONS OF
CONSTITUTIONALITY RELATING TO THE COMMISSION'S PROCEDURE.  P. 285. 

FEDERAL COMMUNICATIONS COMMISSION V. WJR, THE GOODWILL STATION, INC.
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

THE FEDERAL COMMUNICATIONS COMMISSION DENIED WJR'S PETITION FOR
RECONSIDERATION OF AN ORDER GRANTING TO ANOTHER AN APPLICATION FOR A
PERMIT TO CONSTRUCT A RADIO STATION.  THE COURT OF APPEALS REVERSED AND
REMANDED THE CASE TO THE COMMISSION.  84 U.S. APP. D.C. 1, 174 F.2D
226.  THIS COURT GRANTED CERTIORARI.  336 U.S. 917.  REVERSED AND
REMANDED, P. 285. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

MOST BROADLY STATED, THE IMPORTANT QUESTION PRESENTED BY THIS CASE IS
THE EXTENT TO WHICH DUE PROCESS OF LAW, AS GUARANTEED BY THE FIFTH
AMENDMENT, REQUIRES FEDERAL ADMINISTRATIVE TRIBUNALS TO ACCORD THE
RIGHT OF ORAL ARGUMENT TO ONE CLAIMING TO BE ADVERSELY AFFECTED BY
THEIR ACTION, MORE PARTICULARLY UPON QUESTIONS OF LAW.  LEST THIS
SPACIOUS FORM OF STATEMENT BE TAKEN AS TOO SWEEPING AND ABSTRACT TO
POSE A JUSTICIABLE ISSUE, WE THINK THE SPECIFIC CONTEXT OF FACT AND
DECISION OUT OF WHICH THE QUESTION HAS ARISEN MUST BE SET FORTH.  BUT
BEFORE THIS IS DONE WE SHOULD SAY THAT, AS WE UNDERSTAND THE COURT OF
APPEALS' DECISION, IT HAS RULED THAT FIFTH AMENDMENT PROCEDURAL DUE
PROCESS REQUIRES AN OPPORTUNITY FOR ORAL ARGUMENT TO BE GIVEN "ON EVERY
QUESTION OF LAW RAISED BEFORE A JUDICIAL OR QUASI-JUDICIAL TRIBUNAL,
INCLUDING QUESTIONS RAISED BY DEMURRER OR AS IF ON DEMURRER, EXCEPT
SUCH QUESTIONS OF LAW AS MAY BE INVOLVED IN INTERLOCUTORY ORDERS SUCH
AS ORDERS FOR THE STAY OF PROCEEDINGS PENDENTE LITE, FOR TEMPORARY
INJUNCTIONS AND THE LIKE," 174 F.2D 226, 233, AND ON THIS BASIS HAS
REMANDED THIS CAUSE TO THE FEDERAL COMMUNICATIONS COMMISSION FOR ORAL
ARGUMENT. 

INVOLVED IN THE CONTROVERSY ARE TWO RADIO STATIONS AND THE
COMMISSION, WHICH IS THE PETITIONER HERE.  ONE OF THE STATIONS IS THE
RESPONDENT WJR.  IT IS LICENSED BY THE COMMISSION AS A "CLASS I-A
STATION,"  FN1  TO BROADCAST DAY AND NIGHT FROM DETROIT, MICHIGAN, ON A
FREQUENCY OF 760 KILOCYCLES AND WITH A STRENGTH OF 50 KILOWATTS.  THE
OTHER STATION IS THE INTERVENOR, COASTAL PLAINS (FORMERLY TARBORO)
BROADCASTING COMPANY. 

PRIOR TO AUGUST 22, 1946, TARBORO FILED WRITTEN APPLICATION WITH THE
COMMISSION FOR A PERMIT TO CONSTRUCT A "CLASS II STATION"  FN2  TO
BROADCAST FROM TARBORO, NORTH CAROLINA.  ON THAT DATE THE COMMISSION
GRANTED THE APPLICATION.  THE PERMIT SPECIFIED THAT THE NEW STATION WAS
TO BROADCAST DURING THE DAY FROM TARBORO AT A STRENGTH OF ONE KILOWATT
ON THE FREQUENCY OF 760 KILOCYCLES, WHICH PREVIOUSLY HAD BEEN USED
EXCLUSIVELY BY WJR.  THE CONSTRUCTION PERMIT WAS GRANTED WITHOUT NOTICE
TO WJR AND WITHOUT ORAL HEARING OR OTHER PARTICIPATION BY IT IN THE
PROCEEDINGS BEFORE THE COMMISSION. 

ON SEPTEMBER 10 FOLLOWING, WJR FILED WITH THE COMMISSION A WRITTEN
"PETITION FOR RECONSIDERATION AND HEARING."  THIS ALLEGED THAT THE
PROPOSED BROADCASTING RANGE OF THE COASTAL PLAINS STATION WOULD CAUSE
"OBJECTIONABLE INTERFERENCE" WITH RESPONDENT'S BROADCAST SIGNAL. 
INTERFERENCE WAS SAID TO BE ANTICIPATED PRINCIPALLY IN CERTAIN AREAS OF
MICHIGAN WHERE "THE FIELD INTENSITY OF WJR AVERAGES 32 MICROVOLTS PER
METER OR LESS DURING THE DAYTIME HOURS,"  FN3  BUT WHERE "WJR PROVIDES
THE BEST SIGNAL AVAILABLE"; LIMITED INTERFERENCE "DURING THE WINTER
SEASON" WAS ALSO EXPECTED WITHIN "CONTOURS" OF FIELD INTENSITY "MUCH
HIGHER" THAN 32 MICROVOLTS; INTERFERENCE OF UNSPECIFIED EXTENT WAS ALSO
THOUGHT LIKELY IN NEIGHBORING STATES, THOUGH AS TO SUCH AREAS IT WAS
CONCEDED THAT "A BETTER SIGNAL IS PROVIDED BY OTHER STATIONS." 

ON THE BASIS OF THESE ALLEGATIONS WJR ASKED THAT THE COMMISSION HOLD
A HEARING ON THE COASTAL PLAINS APPLICATION TO WHICH WJR MIGHT BE MADE
A PARTY OR, IN THE ALTERNATIVE, POSTPONE FINAL ACTION ON THE COASTAL
PLAINS APPLICATION UNTIL THE CONCLUSION OF THE THEN PENDING "CLEAR
CHANNEL" FN4  PROCEEDING.  IN THAT PROCEEDING, ESSENTIALLY LEGISLATIVE
IN CHARACTER, THE COMMISSION WAS CONSIDERING THE DESIRABILITY OF
CHANGING ITS RULES SO AS TO ALLOW WJR AND OTHER STATIONS TO INCREASE
THEIR BROADCAST STRENGTHS TO 500 KILOWATTS.  THE BASIS FOR THE
ALTERNATIVE REQUEST WAS WJR'S FEAR THAT A GRANT OF THE COASTAL PLAINS
CONSTRUCTION PERMIT MIGHT PREJUDICE A POSSIBLE FUTURE WJR APPLICATION
FOR INCREASED SIGNAL STRENGTH IN THE EVENT THE DECISION IN THE CLEAR
CHANNEL PROCEEDING SHOULD SO MODIFY THE COMMISSION'S RULES AS TO
FACILITATE SUCH AN APPLICATION. 

COASTAL PLAINS FILED AN OPPOSITION TO WJR'S PETITION FOR
RECONSIDERATION, ASSERTING AMONG OTHER GROUNDS FOR DENIAL THAT WJR HAD
NOT ALLEGED THAT THE PROPOSED NEW OPERATION "WOULD CAUSE ANY
INTERFERENCE WITHIN THE NORMALLY PROTECTED SERVICE AREA OF STATION WJR"
AND HAD NEITHER ALLEGED NOR PROVED "ANY INTERFERENCE WITHIN ITS
NORMALLY PROTECTED CONTOURS."  THE OPPOSITION WAS BASED ON THE THEORY
THAT UNDER THE COMMISSION'S REGULATIONS WJR'S LICENSE CONFERRED NO
RIGHT TO PROTECTION AGAINST INTERFERENCE OUTSIDE ITS NORMALLY PROTECTED
CONTOURS AS SPECIFIED IN THE REGULATIONS, THAT THE INTERFERENCE ALLEGED
WAS OUTSIDE THOSE CONTOURS, AND HENCE WJR'S PETITION WAS LEGALLY
INSUFFICIENT ON ITS FACE TO STATE ANY BASIS FOR WJR TO BE MADE A PARTY
TO OR TO BE HEARD IN THE COASTAL PLAINS PROCEEDING. 

NO RESPONSE TO THE OPPOSITION WAS FILED BY WJR AND SOME THREE MONTHS
LATER, ON DECEMBER 17, 1946, THE COMMISSION DENIED WJR'S APPLICATION IN
A WRITTEN OPINION, RENDERED WITHOUT PRIOR ORAL ARGUMENT.  THE OPINION
FIRST DISPOSED OF THE ALLEGATIONS OF INTERFERENCE: 

"STATION WJR IS A CLASS I-A STATION.  UNDER THE COMMISSION'S RULES AND
STANDARDS, CLASS I-A STATIONS ARE NORMALLY PROTECTED DAYTIME TO THE 100
MICROVOLT-PER-METER CONTOUR.  THE AREA SOUGHT BY PETITIONER TO BE
PROTECTED IS, ACCORDING TO THE ENGINEERING AFFIDAVIT ACCOMPANYING THE
PETITION, SERVED BY STATION WJR DURING THE DAYTIME WITH A SIGNAL
INTENSITY OF 32 MICROVOLTS-PER-METER OR LESS, AND IS THEREFORE OUTSIDE
THE NORMALLY PROTECTED CONTOUR."  FN5 

AS THE COURT OF APPEALS LATER TREATED THIS RULING, IT WAS THE
EQUIVALENT OF HOLDING AS A MATTER OF LAW, IN JUDICIAL PARLANCE
ESSENTIALLY AS THOUGH RAISED UPON DEMURRER, THAT WJR'S PETITION DID NOT
STATE FACTS SUFFICIENT TO RAISE ANY LEGAL ISSUE CONCERNING (INDIRECT)
MODIFICATION OF WJR'S LICENSE OR RIGHTS UNDER THE LICENSE.  THE
COMMISSION ALSO DENIED WJR'S ALTERNATE REQUEST TO STAY THE COASTAL
PLAINS APPLICATION, CONCLUDING THAT POSTPONEMENT OF THE NEWLY
AUTHORIZED SERVICE OUT OF DEFERENCE TO ANY POSSIBLE "FUTURE ASSIGNMENT
OF FACILITIES" TO WJR "WOULD NOT SERVE THE PUBLIC INTEREST." 

WJR THEN APPEALED TO THE COURT OF APPEALS.  THE COURT AGREED THAT THE
COMMISSION HAD NOT ABUSED ITS DISCRETION IN REFUSING TO STAY THE
COASTAL PLAINS PERMIT UNTIL COMPLETION OF THE CLEAR CHANNEL
PROCEEDING.  IT HELD, HOWEVER, THAT WJR'S CLAIM OF OBJECTIONABLE
INTERFERENCE WITH ITS BROADCAST SIGNAL PRESENTED A QUESTION OF LAW AND,
BY A CLOSELY DIVIDED VOTE, IN THE BROAD LANGUAGE QUOTED ABOVE, FN6
THAT, CONCERNING THE MERITS OF THAT QUESTION, THE FIFTH AMENDMENT
ASSURED TO WJR THE RIGHT OF ORAL ARGUMENT BEFORE THE COMMISSION. 
ACCORDINGLY, IT REFUSED TO CONSIDER WHETHER THE COMMISSION WAS RIGHT IN
ITS LEGAL CONCLUSION THAT AREAS OF SIGNAL INTENSITY LOWER THAN 100
MICROVOLTS PER METER WERE NOT WITHIN THE "NORMALLY PROTECTED CONTOUR"
OF A CLASS I-A STATION, REVERSED THE COMMISSION'S DENIAL OF WJR'S
PETITION, AND REMANDED THE CASE FOR ORAL ARGUMENT BEFORE THE
COMMISSION.  174 F.2D 226.  TO CONSIDER THE QUESTIONS OF IMPORTANCE TO
THE ADMINISTRATIVE PROCESS THUS DETERMINED, WE ISSUED OUR WRIT OF
CERTIORARI.  336 U.S. 917. 

AT THE OUTSET WE NOTE OUR COMPLETE AGREEMENT WITH THE COURT OF
APPEALS THAT THE COMMISSION WAS UNDER NO DUTY TO WJR TO POSTPONE FINAL
ACTION ON THE COASTAL PLAINS PERMIT UNTIL IT HAD DISPOSED OF THE CLEAR
CHANNEL PROCEEDING.  AS THE COURT POINTED OUT, WJR HAD NO VESTED RIGHT
IN THE "SUPPOSITITIOUS EVENTUALITIES" THAT THE COMMISSION AT SOME
INDETERMINATE TIME MIGHT MODIFY ITS RULES GOVERNING CLEAR CHANNEL
STATIONS.  FURTHERMORE, THE JUDICIAL REGULATION OF AN ADMINISTRATIVE
DOCKET SOUGHT BY WJR "WOULD REQUIRE (THE COURT OF APPEALS) TO DIRECT
THE ORDER IN WHICH THE COMMISSION SHALL CONSIDER ITS CASES."  AND THIS,
AS THE COURT SAID, IT "CANNOT DO."  174 F.2D AT 231.  "ONLY CONGRESS
COULD CONFER SUCH A PRIORITY."  FEDERAL COMMUNICATIONS COMMISSION V.
POTTSVILLE BROADCASTING CO., 309 U.S. 134, 145. 

OBVIOUSLY THE MOST IMPORTANT QUESTION IS THE COURT OF APPEALS' RULING
THAT FIFTH AMENDMENT DUE PROCESS REQUIRED THE COMMISSION TO AFFORD
RESPONDENT AN OPPORTUNITY FOR ORAL ARGUMENT UPON ITS PETITION FOR
RECONSIDERATION OF COASTAL PLAINS' APPLICATION, TOGETHER WITH ITS
GROUNDING OF THAT RULING IN THE EVEN BROADER ONE THAT SUCH AN
OPPORTUNITY IS AN INHERENT ELEMENT OF PROCEDURAL DUE PROCESS IN ALL
JUDICIAL OR QUASI-JUDICIAL, I.E., ADMINISTRATIVE, DETERMINATIONS OF
QUESTIONS OF LAW, OUTSIDE OF SUCH QUESTIONS AS MAY ARISE UPON
INTERLOCUTORY MATTERS INVOLVING STAYS PENDENTE LITE, TEMPORARY
INJUNCTIONS AND THE LIKE. 

THAT THE SCOPE OF ITS DECISION MIGHT NOT BE MISUNDERSTOOD, THE COURT
EXPRESSLY STATED:  "A RULING UPON A DEMURRER IS OBVIOUSLY NOT
INTERLOCUTORY FOR IF THE DEMURRER IS SUSTAINED THE PLEADER'S CAUSE (OR
DEFENSE) IS DISMISSED UPON THE MERITS  ...  "  FN7  MOREOVER, EXCEPT AS
TO THE INDICATED INTERLOCUTORY MATTERS, THE RIGHT OF ORAL ARGUMENT ON
QUESTIONS OF LAW ("AS WELL AS  ... THOSE OF FACT" WHEN RAISED) WAS SAID
TO BE "NOT CONDITIONAL UPON THE EX PARTE VIEW OF THE TRIBUNAL AS TO
WHETHER THERE IS A SUBSTANTIAL QUESTION AS TO THE SUFFICIENCY OF THE
ALLEGATIONS OF A COMPLAINANT."  174 F.2D AT 240. 

ACCORDINGLY, ALTHOUGH IT WAS URGED BOTH BY THE COMMISSION AND BY WJR
TO CONSIDER AND DETERMINE THE "THRESHOLD" QUESTION OF LAW UPON ITS
MERITS, NAMELY, WHETHER THE COMMISSION'S DECISION IN DENYING WJR'S
PETITION WAS WRONG, THE COURT REFUSED TO CONSIDER OR DECIDE THAT
QUESTION.  IN ITS VIEW THE QUESTION OF THE COMMISSION'S DUTY TO ACCORD
A HEARING, "I.E., TO HEAR ARGUMENT BEFORE DECIDING WHETHER THE
ALLEGATIONS OF WJR'S PETITION WERE SUFFICIENT" IN LAW, WAS "A
PROCEDURAL QUESTION QUITE SEPARATE FROM THE QUESTION ON THE MERITS
WHETHER OR NOT THE ALLEGATIONS OF THE PETITION, ASSUMING THEIR TRUTH,
WERE SUFFICIENT."  174 F.2D AT 240.  THE STATUTORY SCHEME OF THE
COMMUNICATIONS ACT, THE COURT THOUGHT, "CONTEMPLATES, BEFORE REVIEW IN
THIS COURT, PROPER EXERCISE OF THE COMMISSION'S PRIMARY JURISDICTION,
I.E., VALID FIRST INSTANCE HEARINGS PROPERLY CONDUCTED FROM THE
PROCEDURAL - DUE PROCESS - STANDPOINT."  IBID.  ACCORDINGLY, THE
MAJORITY FELT THAT THE COURT "MUST THEREFORE REMAND THE CASE WITH
DIRECTIONS TO THE COMMISSION TO ALLOW A HEARING TO WJR.  THEN IF AFTER
HEARING THE COMMISSION DECIDES THAT THE ALLEGATIONS WERE INSUFFICIENT
AND DISMISSES THE PETITION  ...  AN APPEAL TO THIS COURT WILL BRING
PROPERLY BEFORE US THE QUESTION OF THE CORRECTNESS OF THE COMMISSION'S
DECISION ON THE MERITS  ...  "  IBID.  FN8

      I. 

TAKEN AT ITS LITERAL AND EXPLICIT IMPORT, THE COURT'S BROAD
CONSTITUTIONAL RULING CANNOT BE SUSTAINED.  SO TAKEN, IT WOULD REQUIRE
ORAL ARGUMENT UPON EVERY QUESTION OF LAW, APART FROM THE EXCLUDED
INTERLOCUTORY MATTERS, ARISING IN ADMINISTRATIVE PROCEEDINGS OF EVERY
SORT.  THIS WOULD BE REGARDLESS OF WHETHER THE LEGAL QUESTION WERE
SUBSTANTIAL OR INSUBSTANTIAL; OF THE SUBSTANTIVE NATURE OF THE ASSERTED
RIGHT OR INTEREST INVOLVED; OF WHETHER CONGRESS HAD PROVIDED A
PROCEDURE, RELATING TO THE PARTICULAR INTEREST, REQUIRING ORAL ARGUMENT
OR ALLOWING IT TO BE DISPENSED WITH; AND REGARDLESS OF THE FACT THAT
FULL OPPORTUNITY FOR JUDICIAL REVIEW MAY BE AVAILABLE. 

WE DO NOT STOP TO CONSIDER THE EFFECTS OF SUCH A RULING, IF ACCEPTED,
UPON THE WORK OF THE VAST AND VARIED ADMINISTRATIVE AS WELL AS JUDICIAL
TRIBUNALS OF THE FEDERAL SYSTEM AND THE EQUALLY NUMEROUS AND
DIVERSIFIED INTERESTS AFFECTED BY THEIR FUNCTIONING; OR INDEED UPON THE
MANY AND DIFFERENT TYPES OF ADMINISTRATIVE AND JUDICIAL PROCEDURES
WHICH CONGRESS HAS PROVIDED FOR DEALING ADJUDICATIVELY WITH SUCH
INTERESTS.  IT IS ENOUGH TO SAY THAT DUE PROCESS OF LAW, AS CONCEIVED
BY THE FIFTH AMENDMENT, HAS NEVER BEEN CAST IN SO RIGID AND ALL
INCLUSIVE CONFINEMENT. 

ON THE CONTRARY, DUE PROCESS OF LAW HAS NEVER BEEN A TERM OF FIXED
AND INVARIABLE CONTENT.  FN9 THIS IS AS TRUE WITH REFERENCE TO ORAL
ARGUMENT AS WITH RESPECT TO OTHER ELEMENTS OF PROCEDURAL DUE PROCESS. 
FOR THIS COURT HAS HELD IN SOME SITUATIONS THAT SUCH ARGUMENT IS
ESSENTIAL TO A FAIR HEARING, LONDONER V. DENVER, 210 U.S. 373, IN
OTHERS THAT ARGUMENT SUBMITTED IN WRITING IS SUFFICIENT.  MORGAN V.
UNITED STATES, 298 U.S. 468, 481.  SEE ALSO JOHNSON & WIMSATT V. HAZEN,
69 APP. D.C. 151; MITCHELL V. REICHELDERFER, 61 APP. D.C. 50. 

THE DECISIONS CITED ARE SUFFICIENT TO SHOW THAT THE BROAD
GENERALIZATION MADE BY THE COURT OF APPEALS IS NOT THE LAW.  RATHER IT
IS IN CONFLICT WITH THIS COURT'S RULINGS, IN EFFECT, THAT THE RIGHT OF
ORAL ARGUMENT AS A MATTER OF PROCEDURAL DUE PROCESS VARIES FROM CASE TO
CASE IN ACCORDANCE WITH DIFFERING CIRCUMSTANCES, AS DO OTHER PROCEDURAL
REGULATIONS.  CERTAINLY THE CONSTITUTION DOES NOT REQUIRE ORAL ARGUMENT
IN ALL CASES WHERE ONLY INSUBSTANTIAL OR FRIVOLOUS QUESTIONS OF LAW, OR
INDEED EVEN SUBSTANTIAL ONES, ARE RAISED.  EQUALLY CERTAINLY IT HAS
LEFT WIDE DISCRETION TO CONGRESS IN CREATING THE PROCEDURES TO BE
FOLLOWED IN BOTH ADMINISTRATIVE AND JUDICIAL PROCEEDINGS, AS WELL AS IN
THEIR CONJUNCTION.    WITHOUT IN ANY SENSE DISCOUNTING THE VALUE OF
ORAL ARGUMENT WHEREVER IT MAY BE APPROPRIATE OR, BY VIRTUE OF THE
PARTICULAR CIRCUMSTANCES, CONSTITUTIONALLY REQUIRED, WE CANNOT ACCEPT
THE BROAD FORMULA UPON WHICH THE COURT OF APPEALS RESTED ITS RULING. 
TO DO SO WOULD DO VIOLENCE NOT ONLY TO OUR OWN FORMER DECISIONS BUT
ALSO, WE THINK, TO THE CONSTITUTIONAL POWER OF CONGRESS TO DEVISE
DIFFERING ADMINISTRATIVE AND LEGAL PROCEDURES APPROPRIATE FOR THE
DISPOSITION OF ISSUES AFFECTING INTERESTS WIDELY VARYING IN KIND. 
FN10 

IT FOLLOWS ALSO THAT WE SHOULD NOT UNDERTAKE IN THIS CASE TO
GENERALIZE MORE BROADLY THAN THE PARTICULAR CIRCUMSTANCES REQUIRE UPON
WHEN AND UNDER WHAT CIRCUMSTANCES PROCEDURAL DUE PROCESS MAY REQUIRE
ORAL ARGUMENT.  THAT IS NOT A MATTER, UNDER OUR DECISIONS, FOR
BROADSIDE GENERALIZATION AND INDISCRIMINATE APPLICATION.  IT IS RATHER
ONE FOR CASE-TO-CASE DETERMINATION, THROUGH WHICH ALONE ACCOUNT MAY BE
TAKEN OF DIFFERENCES IN THE PARTICULAR INTERESTS AFFECTED,
CIRCUMSTANCES INVOLVED, AND PROCEDURES PRESCRIBED BY CONGRESS FOR
DEALING WITH THEM.  ONLY THUS MAY THE JUDGMENT OF CONGRESS, EXPRESSED
PURSUANT TO ITS POWER UNDER THE CONSTITUTION TO DEVISE BOTH JUDICIAL
AND ADMINISTRATIVE PROCEDURES, BE TAKEN INTO ACCOUNT.  ANY OTHER
APPROACH WOULD BE, IN THESE RESPECTS, HIGHLY ABSTRACT, INDEED LARGELY
IN A VACUUM. 

II. 

DESCENDING TO THE CONCRETE SETTING OF THIS CASE IN THE PROVISIONS OF
THE COMMUNICATIONS ACT, FN11  WE ARE UNABLE TO CONCLUDE THAT THE
PROCEDURE CONGRESS HAS PROVIDED FOR DETERMINATION OF THE QUESTIONS
RESPONDENT RAISES AFFORDS ANY SEMBLANCE OF DUE PROCESS DEFICIENCY. 

THE STATUTE ITSELF PROVIDES IN TERMS FOR ORAL ARGUMENT BEFORE THE
COMMISSION IN A SINGLE SITUATION ONLY, NAMELY, IN PROCEEDINGS HEARD
INITIALLY BEFORE AN EXAMINER UNDER SEC. 409(A).  FN12 THAT PROVISION
HOWEVER HAS NO PERTINENCE TO THIS CASE, SINCE IT WAS NOT HEARD OR
ASSIGNED FOR HEARING IN THE FIRST INSTANCE BEFORE AN EXAMINER AND
RESPONDENT'S CLAIMED RIGHT OF PARTICIPATION ARISES UNDER SEC. 312(B). 
47 U.S.C. SEC. 312(B).  THAT SECTION AUTHORIZES THE COMMISSION TO
MODIFY STATION LICENSES "IF IN THE JUDGMENT OF THE COMMISSION SUCH
ACTION WILL PROMOTE THE PUBLIC INTEREST, CONVENIENCE, AND NECESSITY,"
BUT PROVIDES "THAT NO SUCH ORDER OF MODIFICATION SHALL BECOME FINAL
UNTIL THE HOLDER OF SUCH OUTSTANDING LICENSE  ...  SHALL HAVE BEEN
NOTIFIED IN WRITING OF THE PROPOSED ACTION AND THE GROUNDS OR REASONS
THEREFOR AND SHALL HAVE BEEN GIVEN REASONABLE OPPORTUNITY TO SHOW CAUSE
WHY SUCH AN ORDER OF MODIFICATION SHOULD NOT ISSUE." 

AS BEARING ON THE MEANING OF SEC. 312(B), ACCOUNT MUST BE TAKEN ALSO
OF TWO OTHER FACTORS.  ONE IS SEC. 4(J) OF THE ACT (47 U.S.C. SEC.
154(J)), WHICH PROVIDES: "THE COMMISSION MAY CONDUCT ITS PROCEEDINGS IN
SUCH MANNER AS WILL BEST CONDUCE TO THE PROPER DISPATCH OF BUSINESS AND
TO THE ENDS OF JUSTICE.  ...  ANY PARTY MAY APPEAR BEFORE THE
COMMISSION AND BE HEARD IN PERSON OR BY ATTORNEY.  ..."  THE OTHER
FACTOR CONSISTS IN THIS COURT'S DECISION IN FEDERAL COMMUNICATIONS
COMMISSION V. NATIONAL BROADCASTING CO., 319 U.S. 239, THE SO-CALLED
KOA CASE. 

THAT CASE HELD THAT THE GRANTING OF A LICENSE TO BROADCAST ON A
FREQUENCY AND AT A STRENGTH WHICH WOULD INTERFERE WITH THE BROADCAST
SIGNAL OF A PRIOR LICENSEE WITHIN THE PROTECTION OF THE LATTER'S
LICENSE AS AFFORDED BY THE COMMISSION'S EXISTING RULES CONSTITUTES AN
INDIRECT MODIFICATION OF THE PRIOR OUTSTANDING LICENSE.  FROM THIS IT
WAS HELD TO FOLLOW THAT SEC. 312(B) GAVE THE PRIOR LICENSEE THE RIGHT
TO BE MADE A PARTY TO THE PROCEEDING AND HENCE TO "HAVE NOTICE IN
WRITING OF THE PROPOSED ACTION AND THE GROUNDS THEREFOR AND  ...  A
REASONABLE OPPORTUNITY TO SHOW CAUSE WHY AN ORDER OF MODIFICATION
SHOULD NOT ISSUE."  319 U.S. AT 245-246.  THEN FOLLOWED THE COURT'S
CONCLUSION THAT BY VIRTUE OF KOA'S RIGHT TO BE A PARTY, IT HAD ALSO THE
RIGHT UNDER SEC. 402(B)(2), AS A "PERSON AGGRIEVED OR WHOSE INTERESTS
ARE ADVERSELY AFFECTED," TO APPEAL TO THE COURT OF APPEALS FROM THE
COMMISSION'S DENIAL OF ITS PETITION TO INTERVENE AND PARTICIPATE AS A
PARTY IN THE PROCEEDINGS BEFORE IT. 

IT IS IN THIS CONTEXT OF STATUTORY PROVISIONS AND JUDICIAL DECISION
THAT WJR'S CLAIM OF RIGHT TO PARTICIPATE IN THE COMMISSION'S
PROCEEDINGS, INCLUDING THE RIGHT OF ORAL ARGUMENT, AND OF DENIAL OF DUE
PROCESS THROUGH THE DENIAL OF ITS PETITION FOR RECONSIDERATION ARISES
AND MUST BE CONSIDERED. 

WJR'S PETITION PRESENTS THE QUESTION WHETHER UPON ITS FACE IT STATES
FACTS SUFFICIENT TO SHOW (INDIRECT) MODIFICATION OF ITS LICENSE BY THE
GRANTING OF COASTAL PLAINS' APPLICATION.  THIS IN TURN DEPENDS ON
WHETHER ALLEGATIONS NOT ASSERTING INTERFERENCE WITHIN THE 100
MICROVOLTPER-METER CONTOUR OR, AS THE COMMISSION HELD, ALLEGATIONS
ASSERTING INTERFERENCE ONLY "OUTSIDE THE NORMALLY PROTECTED CONTOUR" OF
WJR'S LICENSE, SET FORTH ANY LEGALLY SUFFICIENT BASIS FOR A CLAIM OF
RIGHT TO BE MADE A PARTY AND PARTICIPATE IN THE PROCEEDINGS.  AND,
AGAIN, ACCORDING TO RESPONDENT, THE ANSWER TO THAT QUESTION TURNS ON
WHETHER THE COMMISSION'S STANDARDS OF GOOD ENGINEERING PRACTICE
CONCERNING STANDARD BROADCAST STATIONS CONSTITUTE A PART OF AND A
LIMITATION UPON WJR'S LICENSE.  FN13 

RESPONDENT INSISTS THAT THOSE STANDARDS, AS A MATTER OF LAW, DO NOT
LIMIT ITS LICENSE OR MEASURE THE PROTECTION IT AFFORDS AGAINST
"OBJECTIONABLE INTERFERENCE"; IT NECESSARILY ARGUES IN ADDITION THAT
THE DEGREE OF INTERFERENCE ITS PETITION ALLEGES BRINGS ABOUT AN
(INDIRECT) MODIFICATION OF ITS LICENSE (CONVERSELY STATED, THAT THE
LICENSE PROTECTED IT AGAINST THE ALLEGED DEGREE OF INTERFERENCE) AND
HENCE, AS IN THE KOA CASE, THE PROPOSED GRANT OF A NEW LICENSE ENTITLES
IT UNDER SEC. 312(B) TO BE MADE A PARTY TO THE COASTAL PLAINS
PROCEEDING AND TO PARTICIPATE IN IT AS SEC. 312(B) PROVIDES. 

THIS IS THE CLAIM WHICH THE COURT OF APPEALS PURPORTED EXPRESSLY TO
REFUSE TO CONSIDER OR DECIDE, PRIOR TO ORAL ARGUMENT UPON IT BEFORE THE
COMMISSION.  BUT TWO THINGS MAY BE NOTED.  ONE IS THAT, CONTRARY TO THE
SITUATION HERE, IN THE KOA CASE THE COMMISSION'S PROPOSED GRANT OF A
NEW LICENSE TO STATION WHDH CONCEDEDLY CREATED INTERFERENCE AGAINST
WHICH THE EXISTING RULES OF THE COMMISSION PROTECTED THE PRIOR LICENSE
OF KOA.  FN14 

IN THE SECOND PLACE, THE MAJORITY'S DISCLAIMER HERE OF DECISION UPON
THE MERITS SEEMS HARDLY CONSISTENT WITH ITS OPINION'S FLAT RULING, AS
WE UNDERSTAND IT, THAT WJR'S ALLEGATIONS QUALIFIED IT AS A PARTY TO THE
PROCEEDING AND NOT, AS THE DISSENTING JUDGES THOUGHT, MERELY AS A
STRANGER SEEKING TO COME IN AS AN INTERVENOR.  FN15  FOR THAT QUESTION
HERE, VIZ., WHETHER WJR'S ALLEGATIONS ENTITLE IT TO STANDING AS A
PARTY, IS BUT ANOTHER WAY OF PHRASING THE ISSUE WHETHER ITS PETITION
STATES A LEGALLY SUFFICIENT CLAIM OF (INDIRECT) MODIFICATION, SINCE
UNDER SEC. 312(B) ONLY A PRIOR LICENSEE WHO STATES SUCH A CLAIM IS
ENTITLED TO BE MADE A PARTY AND TO PARTICIPATE IN THE PROCEEDINGS.  TO
DECIDE THAT ONE HAS THE STATUS OF A PARTY IS THEREFORE TO DECIDE THE
QUESTION OF MODIFICATION VEL NON. 

IN VIEW OF THE COURT'S MANDATE, HOWEVER, WE THINK WE MUST ACCEPT ITS
DISCLAIMER.  BUT WE ALSO THINK THAT, IN THE LIGHT OF THE DISCLAIMER,
ITS RULING, IF IT WAS SUCH, THAT WJR IS ENTITLED TO BE MADE A PARTY
MUST BE REJECTED AND THAT QUESTION MUST BE REGARDED AS INHERENTLY
INVOLVED IN, INDEED AS IDENTICAL WITH, THE UNDETERMINED ISSUE OF
MODIFICATION VEL NON, IF ANY EFFECT IS TO BE GIVEN TO THE PROVISIONS OF
SEC. 312(B).  FN16 

WE THINK THE LIMITATIONS OF THAT SECTION MUST BE GIVEN EFFECT. 
INDEED IT IS OUR VIEW THAT THE ACT'S PROCEDURAL SCHEME AND ITS
APPLICATION IN THIS CASE HAVE NOT DEPRIVED THE RESPONDENT OF ANY
PROCEDURAL RIGHT GUARANTEED BY THE DUE-PROCESS REQUIREMENT OF THE FIFTH
AMENDMENT.  THAT IS TRUE, NOTWITHSTANDING THE COMMISSION'S FAILURE TO
AFFORD RESPONDENT AN OPPORTUNITY FOR ORAL ARGUMENT UPON ITS ALLEGATIONS
IN THIS CASE. 

CONGRESS, WE THINK, HAS COMMITTED TO THE COMMISSION'S DISCRETION, BY
THE TERMS OF SEC. 312(B) AND SEC. 4(J) OF THE COMMUNICATIONS ACT, THE
QUESTIONS WHETHER AND UNDER WHAT CIRCUMSTANCES IT WILL ALLOW OR REQUIRE
ORAL ARGUMENT, EXCEPT WHERE THE ACT ITSELF EXPRESSLY REQUIRES IT.  AS
WE HAVE NOTED, CONGRESS HAS REQUIRED ORAL ARGUMENT EXPRESSLY IN
PROCEEDINGS HEARD INITIALLY BEFORE AN EXAMINER UNDER SEC. 409(A).  BUT
NO SUCH REQUIREMENT WAS MADE BY SEC. 312(B).  WHILE THAT SECTION
REQUIRES NOTICE AND STATEMENT OF GROUNDS FOR ANY PROPOSED ORDER OF
MODIFICATION BEFORE SUCH ORDER "SHALL BECOME FINAL," IT DOES NOT
SPECIFY THAT FURTHER PROCEEDINGS SHALL INCLUDE THE RIGHT TO ORAL
ARGUMENT; IT REQUIRES ONLY THAT THE HOLDER OF THE OUTSTANDING LICENSE
TO BE MODIFIED "SHALL HAVE BEEN GIVEN REASONABLE OPPORTUNITY TO SHOW
CAUSE WHY SUCH AN ORDER OF MODIFICATION SHOULD NOT ISSUE" BEFORE THE
ORDER BECOMES FINAL. 

IN VIEW OF THE CONTRAST BETWEEN THIS LANGUAGE AND THAT OF SEC.
409(A), IT IS HARDLY TO BE TAKEN THAT CONGRESS INTENDED THE "REASONABLE
OPPORTUNITY TO SHOW CAUSE" ALWAYS TO INCLUDE OPPORTUNITY FOR ORAL
ARGUMENT.  INDEED, IN THE ABSENCE OF ANY SUCH EXPLICIT REQUIREMENT AS
THAT OF SEC. 409(A), THE TERMS OF SEC. 312(B) MUST BE READ IN THE LIGHT
OF THE ACT'S GENERAL PROCEDURAL AUTHORIZATION IN SEC. 4(J), WHICH
EMPOWERS THE COMMISSION TO "CONDUCT ITS PROCEEDINGS IN SUCH MANNER AS
WILL BEST CONDUCE TO THE PROPER DISPATCH OF BUSINESS AND TO THE ENDS OF
JUSTICE." 

IN THIS WORDING CONGRESS WAS MINDFUL NOT ONLY OF THE ENDS OF JUSTICE
BUT ALSO OF THE PROPER DISPATCH OF THE COMMISSION'S BUSINESS, A MATTER
NOT UNRELATED TO ACHIEVING THE ENDS OF JUSTICE, AND LEFT LARGELY TO ITS
JUDGMENT THE DETERMINATION OF THE MANNER OF CONDUCTING ITS BUSINESS
WHICH WOULD MOST FAIRLY AND REASONABLY ACCOMMODATE THOSE ENDS. 
MOREOVER IT WAS DEALING WITH SUBSTANTIVE INTERESTS INVOLVING THE USE,
PURSUANT TO FEDERAL LICENSE, OF CHANNELS OF RADIO COMMUNICATION "BUT
NOT THE OWNERSHIP THEREOF," SEC. 301, AS TO WHICH MOREOVER THE ACT
EXPRESSLY PROVIDES THAT "NO SUCH LICENSE SHALL BE CONSTRUED TO CREATE
ANY RIGHT, BEYOND THE TERMS, CONDITIONS, AND PERIODS OF THE LICENSE." 
IBID. 

IN THIS CONNECTION IT CANNOT BE RECALLED TOO OFTEN THAT "'PUBLIC
CONVENIENCE, INTEREST, OR NECESSITY' WAS THE TOUCHSTONE FOR THE
EXERCISE OF THE COMMISSION'S AUTHORITY" IN MATTERS RELATING TO
CONSTRUCTION PERMITS AND LICENSING, AND THAT THIS CRITERION "SERVES AS
A SUPPLE INSTRUMENT FOR THE EXERCISE OF DISCRETION BY THE EXPERT BODY
WHICH CONGRESS HAS CHARGED TO CARRY OUT ITS LEGISLATIVE POLICY." 
FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE BROADCASTING CO., 309
U.S. 134, 137-138.  "NECESSARILY, THEREFORE, THE SUBORDINATE QUESTIONS
OF PROCEDURE IN ASCERTAINING THE PUBLIC INTEREST, WHEN THE COMMISSION'S
LICENSING AUTHORITY IS INVOKED - THE SCOPE OF THE INQUIRY, WHETHER
APPLICATIONS SHOULD BE HEARD CONTEMPORANEOUSLY OR SUCCESSIVELY, WHETHER
PARTIES SHOULD BE ALLOWED TO INTERVENE IN ONE ANOTHER'S PROCEEDINGS,
AND SIMILAR QUESTIONS - WERE EXPLICITLY AND BY IMPLICATION LEFT TO THE
COMMISSION'S OWN DEVISING, SO LONG, OF COURSE, AS IT OBSERVES THE BASIC
REQUIREMENTS DESIGNED FOR THE PROTECTION OF PRIVATE AS WELL AS PUBLIC
INTEREST."  ID. AT 138. 

WE NEED NOT GO AGAIN OVER THE GROUND WHICH WAS COVERED BY THIS
DECISION AND OTHERS.  SUFFICE IT TO SAY THAT THE COMMISSION HAS NOT
SEEN FIT TO PROVIDE FOR ORAL ARGUMENT IN ALL SUCH CASES AS THIS ARISING
UNDER SEC. 312(B); NOR IS THERE ANY BASIS IN THE SECTION OR THE ACT FOR
BELIEVING THAT CONGRESS INTENDED TO REQUIRE IT TO DO SO.  "REASONABLE
OPPORTUNITY TO SHOW CAUSE," AS USED IN SEC. 312(B), COMPREHENDS, IN THE
LIGHT OF SEC. 4(J) AND THIS COURT'S PRIOR DECISIONS, THAT THE
COMMISSION SHALL HAVE BROAD DISCRETION IN DETERMINING WHETHER AND WHEN
ORAL ARGUMENT SHALL BE REQUIRED OR PERMITTED, AS IT DOES WITH RESPECT
TO OTHER PROCEDURAL MATTERS.  FN17 

RESPONDENT DOES NOT CONTEND THAT IT WAS DENIED ANY OPPORTUNITY TO
PRESENT FOR THE COMMISSION'S CONSIDERATION ANY MATTER OF FACT OR LAW IN
CONNECTION WITH ITS APPLICATION OR THAT THE COMMISSION HAS NOT GIVEN
ALL MATTERS SUBMITTED BY IT DUE AND FULL CONSIDERATION.  WE CANNOT SAY,
IN VIEW OF THE STATUTE AND OF THE SUBJECT MATTER INVOLVED, THAT THE
COMMISSION ABUSED ITS DISCRETION IN HEARING RESPONDENT'S APPLICATION ON
THE WRITTEN SUBMISSION.  FN18 

ACCORDINGLY WE THINK IT WAS ERROR FOR THE COURT TO DECLINE TO DECIDE
THE MERITS OF THE QUESTION WHETHER RESPONDENT'S APPLICATION STATED A
LEGALLY SUFFICIENT CASE OF (INDIRECT) MODIFICATION OF ITS LICENSE
WITHIN THE TERMS OF SEC. 312(B) AS WELL AS TO DECIDE, WITHOUT
DETERMINING THAT QUESTION, THAT RESPONDENT WAS ENTITLED TO BE MADE A
PARTY TO AND PARTICIPATE AS SUCH IN THE COASTAL PLAINS PROCEEDING.  AS
WE HAVE SAID, IN THE SITUATION HERE PRESENTED, THE TWO FORMS OF
STATEMENT POSE THE SAME QUESTION IN SUBSTANCE, TOGETHER WITH THE
FURTHER QUESTION, UNDER THE KOA DECISION, WHETHER RESPONDENT HAS
STANDING TO APPEAL AS A PARTY AGGRIEVED.  THE STATUTORY SEQUENCE
IDENTIFIES (1) A LEGALLY SUFFICIENT CLAIM OF MODIFICATION WITH (2)
RIGHT TO STANDING AS A PARTY AND (3) RIGHT TO APPEAL. 

THIS THREEFOLD ISSUE PRESENTS A QUESTION OF LAW RESPONDENT IS
ENTITLED TO HAVE DETERMINED.  THE DISSENTING JUDGES IN THE COURT OF
APPEALS CONSIDERED THE QUESTION INSUBSTANTIAL, BECAUSE THEY THOUGHT,
CONTRARY TO RESPONDENT'S POSITION, THAT THE COMMISSION'S STANDARDS OF
GOOD ENGINEERING PRACTICE APPLIED AS A LIMITATION UPON RESPONDENT'S
LICENSE AND THEREFORE EXCLUDED IT FROM PROTECTION AGAINST INTERFERENCE
SUCH AS RESPONDENT ALLEGED, I.E., OUTSIDE THE CONTOURS PRESCRIBED BY
THE STANDARDS.    THAT QUESTION, BEING ONE OF LAW, MIGHT NOW BE DECIDED
HERE.  BUT SINCE THE STATUTE, IF IT AFFORDS RESPONDENT A RIGHT OF
APPEAL, PROVIDES THAT IT SHALL BE TO THE COURT OF APPEALS, AND SINCE
THAT COURT HAS NOT DECIDED THE BASIC ISSUE ON THE MERITS, WE THINK THE
CAUSE SHOULD BE REMANDED TO THE COURT OF APPEALS FOR DECISION OF THAT
QUESTION, UNCOMPLICATED BY QUESTIONS OF CONSTITUTIONALITY RELATING TO
THE COMMISSION'S PROCEDURE.  ACCORDINGLY THE COURT'S DECISION IS
REVERSED AND THE CAUSE IS REMANDED TO IT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  FEDERAL COMMUNICATIONS COMMISSION RULES GOVERNING STANDARD
BROADCAST STATIONS SEC. 3.22(A): "A 'CLASS I STATION' IS A DOMINANT
STATION OPERATING ON A CLEAR CHANNEL AND DESIGNED TO RENDER PRIMARY AND
SECONDARY SERVICE OVER AN EXTENDED AREA AND AT RELATIVELY LONG
DISTANCES.  ITS PRIMARY SERVICE AREA IS FREE FROM OBJECTIONABLE
INTERFERENCE FROM OTHER STATIONS ON THE SAME AND ADJACENT CHANNELS, AND
ITS SECONDARY SERVICE AREA FREE FROM INTERFERENCE, EXCEPT FROM STATIONS
ON THE ADJACENT CHANNEL, AND FROM STATIONS ON THE SAME CHANNEL IN
ACCORDANCE WITH THE CHANNEL DESIGNATION IN SEC. 3.25 OR IN ACCORDANCE
WITH THE 'ENGINEERING STANDARDS OF ALLOCATION'.  THE OPERATING POWER
SHALL BE NOT LESS THAN 10 KW NOR MORE THAN 50 KW (ALSO SEE SEC. 3.25(A)
FOR FURTHER POWER LIMITATION)."  4 FED. REG. 2715. 

FN2  FEDERAL COMMUNICATIONS COMMISSION RULES GOVERNING STANDARD
BROADCAST STATIONS SEC. 3.22(B): "A 'CLASS II STATION' IS A SECONDARY
STATION WHICH OPERATES ON A CLEAR CHANNEL (SEE SEC. 3.25) AND IS
DESIGNED TO RENDER SERVICE OVER A PRIMARY SERVICE AREA WHICH IS LIMITED
BY AND SUBJECT TO SUCH INTERFERENCE AS MAY BE RECEIVED FROM CLASS I
STATIONS.  A STATION OF THIS CLASS SHALL OPERATE WITH POWER NOT LESS
THAN 0.25 KILOWATTS NOR MORE THAN 50 KILOWATTS.  WHENEVER NECESSARY A
CLASS II STATION SHALL USE A DIRECTIONAL ANTENNA OR OTHER MEANS TO
AVOID INTERFERENCE WITH CLASS I STATIONS AND WITH OTHER CLASS II
STATIONS, IN ACCORDANCE WITH THE 'ENGINEERING STANDARDS OF
ALLOCATION.'"  4 FED. REG. 2715. 

FN3  FOR THE MEANING OF THE TERM "FIELD INTENSITY," AND FOR THE
RELATION OF A BROADCAST SIGNAL'S "FIELD INTENSITY" TO THE LEGAL CONCEPT
OF A LICENSED RADIO STATION'S "NORMALLY PROTECTED CONTOUR," SEE NOTE
5. 

FN4  FEDERAL COMMUNICATIONS COMMISSION RULES GOVERNING STANDARD
BROADCAST STATIONS SEC. 3.21(A): "A 'CLEAR CHANNEL' IS ONE ON WHICH THE
DOMINANT STATION OR STATIONS RENDER SERVICE OVER WIDE AREAS AND WHICH
ARE CLEARED OF OBJECTIONABLE INTERFERENCE, WITHIN THEIR PRIMARY SERVICE
AREAS AND OVER ALL OR A SUBSTANTIAL PORTION OF THEIR SECONDARY SERVICE
AREAS."  4 FED. REG. 2715. 

FN5  THE DISSENTING OPINION IN THE COURT OF APPEALS DECISION HERE
UNDER REVIEW OFFERS A SUCCINCT EXPOSITION OF THESE TECHNICAL TERMS: 

"THIS CONCEPT OF NORMAL PROTECTION IN THE DAYTIME IS CLEAR.  THE
CIRCUMFERENCE OF THE PROTECTED AREA IS A CONTOUR LINE, WHICH IS FIXED
BY MEASUREMENT OF THE STRENGTH OF THE RADIO WAVES FROM THE PARTICULAR
STATION.  THAT STRENGTH, OR INTENSITY, IS MEASURED IN TERMS OF
MICROVOLTS (MILLIONTHS OF A VOLT) OR MILLIVOLTS (THOUSANDTHS OF A VOLT)
PER METER, ABBREVIATED AS UV/M AND MV/M RESPECTIVELY.  THE WAVE WHICH
IS MEASURED IS THE GROUNDWAVE, WHICH FOLLOWS THE SURFACE OF THE EARTH
AND EXTENDS GREATER OR LESS DISTANCES DEPENDING UPON THE NATURE OF THE
EARTH, ITS TOPOGRAPHY, AND SUCH OBSTACLES AS NOISE AND STEEL
STRUCTURES.  GENERALLY SPEAKING, THE GREATER THE DISTANCE FROM THE
STATION, THE LESS THE STRENGTH OF THE STATION SIGNAL.  THE '100 UV/M
GROUND WAVE CONTOUR' NAMED IN THE COMMISSION'S STANDARDS, IS THE
IMAGINARY LINE WHICH CONNECTS ALL POINTS AT WHICH THE GROUND WAVE OF
THE STATION IS OF 100 MICROVOLTS PER METER STRENGTH."  174 F.2D 226,
244. 

THE "COMMISSION'S STANDARDS" TO WHICH THE OPINION REFERS ARE THE
STANDARDS OF GOOD ENGINEERING PRACTICE CONCERNING BROADCAST STATIONS. 
UNDER THE SUBHEADING "ENGINEERING STANDARDS OF ALLOCATION," PARAGRAPH
(2)(A) PROVIDES AS FOLLOWS:  "THE CLASS I STATIONS IN GROUP 1 ARE THOSE
ASSIGNED TO THE CHANNELS ALLOCATED BY SECTION 3.25, PARAGRAPH
(A)(INCLUDING, INTER ALIA, THE 760 KILOCYCLE FREQUENCY ASSIGNED TO WJR,
4 FED. REG. 2716), ON WHICH DUPLICATE NIGHTTIME OPERATION IS NOT
PERMITTED, THAT IS, NO OTHER STATION IS PERMITTED TO OPERATE ON A
CHANNEL WITH A CLASS I STATION OF THIS GROUP WITHIN THE LIMITS OF THE
UNITED STATES (THE CLASS II STATIONS ASSIGNED THE CHANNELS OPERATE
LIMITED TIME OR DAYTIME ONLY) AND DURING DAYTIME THE CLASS I STATION IS
PROTECTED TO THE 100 UV/M GROUND WAVE CONTOUR."  4 FED. REG. 2862. 

FN6  THE CASE WAS FIRST ARGUED BEFORE THREE JUSTICES, CHIEF JUSTICE
GRONER AND JUSTICES CLARK AND PRETTYMAN.  BY DIRECTION OF THE COURT IT
WAS REARGUED BEFORE JUSTICES STEPHENS, EDGERTON, CLARK, WILBUR K.
MILLER AND PRETTYMAN.  THE DECISION WAS RENDERED PURSUANT TO AN OPINION
OF JUSTICE STEPHENS, IN WHICH JUSTICES CLARK AND MILLER CONCURRED. 
JUSTICE PRETTYMAN FILED A DISSENTING OPINION IN WHICH JUSTICE EDGERTON
JOINED. 

FN7  THE STATEMENT, TAKEN IN ITS CONTEXT AND THE PERVADING SENSE OF
THE OPINION, RELATED NOT MERELY TO JUDICIAL RULINGS TECHNICALLY "RAISED
BY DEMURRER" BUT ALSO TO JUDICIAL AND ADMINISTRATIVE RULINGS " AS IF ON
DEMURRER," I.E., AS EXPRESSLY STATED LATER IN THE OPINION, TO RULINGS
"RAISED BY DEMURRER OR MOTION TO DISMISS OR, IN AN ADMINISTRATIVE
PROCEEDING, BY SOME LESS FORMALLY NAMED INSTRUMENT OF LIKE PURPOSE, OR
BY THE TRIBUNAL'S SUA SPONTE TREATMENT OF A PETITION AS IF UNDER
DEMURRER ...  "  174 F.2D AT 236. 

FN8  BOTH FROM THE WORDING OF THE IMMEDIATE REFERENCE, QUOTED ABOVE,
AND FROM OTHER LANGUAGE IN CONTEXT, IT IS CLEAR THAT THE COURT'S
REFERENCE TO "THE STATUTORY SCHEME SET UP IN THE COMMUNICATIONS ACT"
WAS NOT DESIGNED AS A RULING THAT THE STATUTORY SCHEME ITSELF,
CONSIDERED WHOLLY AS SUCH AND APART FROM ANY REQUIREMENT OF DUE
PROCESS, AFFORDS THE RIGHT OF ORAL ARGUMENT UPON ALL QUESTIONS OF LAW,
OTHER THAN THE INTERLOCUTORY EXCEPTIONS, BEFORE THE COMMISSION. 
RATHER, THE REFERENCE WAS INTENDED TO CONSTRUE THE ACT AS INCORPORATING
THE COURT'S REITERATED CONCEPTION OF DUE-PROCESS REQUIREMENTS IN THIS
RESPECT, IN EFFECT AS A CONSTRUCTION REQUIRED BY THE FIFTH AMENDMENT. 
IT IS CLEAR ALSO THAT IN THIS RULING THE COURT IDENTIFIED "HEARING"
WITH "ORAL ARGUMENT" INSOFAR AS DETERMINATION OF QUESTIONS OF LAW ARE
CONCERNED.  WE ARE THUS CONFRONTED, SO FAR AS THE COURT'S DECISION
WENT, WITH NO QUESTION PURELY OF STATUTORY CONSTRUCTION BUT SOLELY, AT
BOTTOM, WITH ONE OF CONSTITUTIONAL IMPORT AND EFFECT. 

FN9  "THE FIFTH AMENDMENT GUARANTEES NO PARTICULAR FORM OF PROCEDURE;
IT PROTECTS SUBSTANTIAL RIGHTS."  LABOR BOARD V. MACKAY CO., 304 U.S.
333, 351.  "THE REQUIREMENTS IMPOSED BY THAT GUARANTY (FIFTH AMENDMENT
DUE PROCESS) ARE NOT TECHNICAL, NOR IS ANY PARTICULAR FORM OF PROCEDURE
NECESSARY."  INLAND EMPIRE COUNCIL V. MILLIS, 325 U.S. 697, 710.  SEE
ALSO BOWLES V. WILLINGHAM, 321 U.S. 503, 519-521; OPP COTTON MILLS V.
ADMINISTRATOR, 312 U.S. 126, 152-153; BUTTFIELD V. STRANAHAN, 192 U.S.
470, 496-497; ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337, 342, 343;
UNITED STATES V. JU TOY, 198 U.S. 253, 263; CHICAGO, B. & Q.R. CO. V.
CHICAGO, 166 U.S. 226, 235; PHILLIPS V. COMMISSIONER, 283 U.S. 589, 596
597. 

FN10  FOR EXAMPLE, WHAT MAY BE APPROPRIATE OR CONSTITUTIONALLY
REQUIRED BY WAY OF PROCEDURE, INCLUDING OPPORTUNITY FOR ORAL ARGUMENT,
IN PROTECTION OF AN ALIEN'S CLAIMS OF RIGHT TO ENTER THE COUNTRY, CF.
JOHNSON V. SHAUGHNESSY, 336 U.S. 806, MAY BE VERY DIFFERENT FROM WHAT
IS REQUIRED TO DETERMINE AN ALLEGED CITIZEN'S RIGHT OF ENTRY OR
REENTRY, CF. NG FUNG HO V. WHITE, 259 U.S. 276, 282; CARMICHAEL V.
DELANEY, 170 F.2D 239, 243-244; A CLAIMED RIGHT OF NATURALIZATION,
TUTUN V. UNITED STATES, 270 U.S. 568, 576-578; A CLAIM OF JUST
COMPENSATION FOR LAND CONDEMNED, CF. ROBERTS V. NEW YORK CITY, 295 U.S.
264, 277-278; OR THE RIGHT TO DEFEND AGAINST AN INDICTMENT FOR CRIME. 

FN11  ACT OF JUNE 19, 1934, C. 652, 48 STAT. 1064, 1081, 47 U.S.C.
SEC. 301 FF. 

FN12  THE SECTION READS IN PART:  "IN ALL CASES HEARD BY AN EXAMINER
THE COMMISSION SHALL HEAR ORAL ARGUMENTS  ...  "  47 U.S.C. SEC.
409(A). 

FN13  THE STANDARDS, 4 FED. REG. 2862, EXPRESSLY STATE THAT "DURING
DAYTIME THE CLASS I STATION IS PROTECTED TO THE 100 UV/M GROUND WAVE
CONTOUR."  SEC. 1(2)(A).  THE COMMISSION'S STANDARDS OF GOOD
ENGINEERING PRACTICE CONCERNING STANDARD BROADCAST STATIONS WERE
ADOPTED IN 1939 AFTER FORMAL AND INFORMAL HEARINGS.  FIFTH ANNUAL
REPORT OF THE FEDERAL COMMUNICATIONS COMMISSION (1940) 37. 

FN14  IN OTHER WORDS, THE INTERFERENCE ALLEGED WAS WITHIN THE
CONCEDED "NORMAL CONTOURS" OF KOA'S PROTECTION, NOT WITHOUT THEM. 
THERE WAS THEREFORE NO QUESTION SUCH AS IS PRESENTED HERE WHETHER THE
EXISTING STATION'S LICENSE PROTECTED IT AGAINST THE INTERFERENCE
ALLEGED.  THE KOA DECISION THEREFORE CANNOT BE TAKEN AS RULING THAT ONE
ASSERTING INTERFERENCE OUTSIDE THE SCOPE OF ITS LICENSE PROTECTION,
AFFORDED BY THE COMMISSION'S RULES AND REGULATIONS, IS ENTITLED TO BE
MADE A PARTY AND TO PARTICIPATE IN PROCEEDINGS INVOLVING THE ISSUANCE
OF A NEW LICENSE CREATING ONLY SUCH INTERFERENCE. 

FN15  THE COURT'S OPINION STATED:  "WJR AS AN OUTSTANDING LICENSEE IS
NOT A MERE PERMISSIVE INTERVENER OR, AS THE MINORITY PUTS IT, AN
'OUTSIDER'."  174 F.2D AT 240.  THE STATEMENT OF THE MINORITY TO WHICH
THIS REJOINDER WAS MADE WAS:  "THE RULING (OF THE MAJORITY) IS THAT A
PETITIONER FOR INTERVENTION IN AN ADMINISTRATIVE PROCEEDING IS ENTITLED
TO AN ORAL HEARING AS A MATTER OF CONSTITUTIONAL RIGHT, NO MATTER WHAT
OR HOW LITTLE HE SAYS IN HIS PETITION.  ...  (WJR'S PETITION) WAS
BASICALLY A PETITION TO INTERVENE, AS IT ASKED THAT WJR BE MADE A PARTY
TO THE COASTAL PLAINS PROCEEDING."  ID. AT 243. 

FN16  THE COURT OF APPEALS WAS NOT SIMPLY CONSTRUING THE STATUTE, BUT
WAS INFLUENCED THROUGHOUT ITS OPINION BY ITS BROAD CONSTITUTIONAL
GENERALIZATION CONCERNING ORAL ARGUMENT.  IN THAT VIEW NECESSARILY THE
ACT'S SPECIFIC TERMS, INCLUDING THOSE OF SEC. 312(B), SANK INTO THE
GENERALIZATION'S CONSTITUTIONAL COLORING.  IN THAT LIGHT, PERHAPS, THE
MAJORITY'S DISCLAIMER AND ITS RULING THAT WJR WAS ENTITLED TO COME IN
AS A PARTY BORE SEMBLANCE OF CONSISTENCY.  BUT WITHOUT THE COLORATION,
SEC. 312(B) IDENTIFIES SHOWING OF MODIFICATION WITH STANDING AS A
PARTY; AND, UNLESS THIS LIMITATION IS INVALID FOR CONSTITUTIONAL
REASONS, IT MUST BE GIVEN EFFECT. 

FN17  THAT IS TRUE EVEN THOUGH SEC. 4(J) ALSO PROVIDES THAT "ANY
PARTY MAY APPEAR BEFORE THE COMMISSION AND BE HEARD IN PERSON OR BY
ATTORNEY."  THAT PROVISION DOES NOT NULLIFY THE COMMISSION'S DISCRETION
AS TO THE MANNER IN WHICH THE "REASONABLE OPPORTUNITY TO SHOW CAUSE"
AFFORDED BY SEC. 312(B) SHALL BE GIVEN.  IT ONLY ASSURES THE RIGHT TO
PARTICIPATE "IN PERSON OR BY ATTORNEY" IN THE MANNER REASONABLY FOUND
BY THE COMMISSION TO BE APPROPRIATE. 

FN18  FEDERAL RULE 78, THE TERMS OF WHICH WERE NOTED BY THE DISSENT
IN THE COURT OF APPEALS, 174 F.2D 226, 247, PROVIDES IN PART, AS TO
UNITED STATES DISTRICT COURTS:  "TO EXPEDITE ITS BUSINESS, THE COURT
MAY MAKE PROVISION BY RULE OR ORDER FOR THE SUBMISSION AND
DETERMINATION OF MOTIONS WITHOUT ORAL HEARING UPON BRIEF WRITTEN
STATEMENTS OF REASONS IN SUPPORT AND OPPOSITION."  FED. RULES CIV.
PROC., RULE 78.  SIMILAR NOTICE MAY BE TAKEN OF RULE 7(2) OF THIS COURT
WHICH, GOVERNING NOT ONLY MOTION PRACTICE IN APPELLATE CASES BUT
MOTIONS FOR LEAVE TO INITIATE ORIGINAL PROCEEDINGS, PROVIDES IN PART:
"ORAL ARGUMENT WILL NOT BE HEARD ON ANY MOTION UNLESS THE COURT
SPECIALLY ASSIGNS IT THEREFOR  ...  " 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



EX PARTE COLLETT, 337 U.S. 55 


NO. 206, MISC.  ARGUED FEBRUARY 7, 1949.  - DECIDED MAY 31, 1949.  -
MOTION DENIED. 


UNDER 28 U.S.C. SEC. 1404(A), INCORPORATED IN THE REVISION OF THE
JUDICIAL CODE EFFECTIVE SEPTEMBER 1, 1948, THE DOCTRINE OF FORUM NON
CONVENIENS IS MADE APPLICABLE TO ACTIONS UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT.  PP. 56-72. 

1.  THIS CONCLUSION IS REQUIRED BY THE CLEAR AND UNAMBIGUOUS LANGUAGE
OF SEC. 1404(A), WHICH APPLIES GENERALLY TO "ANY CIVIL ACTION."  PP. 58
59. 

2.  IT INVOLVES NO IMPLIED REPEAL OF SEC. 6 OF THE FEDERAL EMPLOYERS'
LIABILITY ACT, SINCE THAT DEALS WITH THE PLACES WHERE ACTIONS MAY BE
BROUGHT ORIGINALLY, WHEREAS 28 U.S.C. SEC. 1404(A) DEALS WITH THE RIGHT
TO TRANSFER AN ACTION PROPERLY BROUGHT.  PP. 59-61. 

3.  THE LEGISLATIVE HISTORY OF THE REVISION OF THE JUDICIAL CODE
REQUIRES THE SAME CONCLUSION.  PP. 61-71. 

4.  AS THUS CONSTRUED, SEC. 1404(A) IS APPLICABLE TO ACTIONS
INSTITUTED BEFORE ITS EFFECTIVE DATE BUT NOT BROUGHT TO TRIAL PRIOR TO
ITS EFFECTIVE DATE.  P. 71. 

EX PARTE COLLETT. 

MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF MANDAMUS AND
PROHIBITION. 

UNDER 28 U.S.C. SEC. 1404(A), A FEDERAL DISTRICT COURT IN WHICH AN
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT HAD BEEN BROUGHT
TRANSFERRED IT TO A DISTRICT COURT IN ANOTHER DISTRICT, ON THE GROUND
THAT THIS WOULD SERVE THE CONVENIENCE OF PARTIES AND WITNESSES AND BE
IN THE INTEREST OF JUSTICE.  PETITIONER MOVED IN THIS COURT FOR LEAVE
TO FILE A PETITION FOR WRITS OF MANDAMUS AND PROHIBITION.  THE CASE WAS
ASSIGNED FOR HEARING ON THE MOTION.  335 U.S. 897.  MOTION DENIED, P.
72. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE MUST DECIDE WHETHER THE VENUE PROVISIONS OF THE
JUDICIAL CODE  FN1  RENDER APPLICABLE THE DOCTRINE OF FORUM NON
CONVENIENS TO ACTIONS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  FN2
PETITIONER INSTITUTED SUCH AN ACTION AGAINST THE LOUISVILLE AND
NASHVILLE RAILROAD IN OCTOBER, 1947, IN THE COURT BELOW, THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ILLINOIS.  NO TRIAL
WAS HAD BEFORE SEPTEMBER 1, 1948, THE EFFECTIVE DATE OF THE PRESENT
JUDICIAL CODE.  FN3  THEREAFTER THE RAILROAD FILED A MOTION TO TRANSFER
THE CASE TO THE DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY. 

THE COURT BELOW FOUND THAT ALL 35 WITNESSES AND THE PETITIONER
HIMSELF LIVE IN IRVINE, KENTUCKY, WHICH ALSO WAS THE SCENE OF THE
ACCIDENT; THAT IRVINE IS 420 MILES, "APPROXIMATELY TWENTY-FOUR HOURS
...  BY PUBLIC TRANSPORTATION," FROM EAST ST. LOUIS, WHERE THE COURT
BELOW SITS, BUT ONLY 26 MILES FROM RICHMOND AND 48 FROM LEXINGTON, IN
WHICH TWO CITIES THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
KENTUCKY SITS.  FURTHERMORE, THE COURT BELOW DETERMINED THAT JURY
SCHEDULES AT BOTH RICHMOND AND LEXINGTON MADE EARLY TRIAL POSSIBLE. 
THUS CONCLUDING THAT THE TRANSFER WOULD SERVE THE CONVENIENCE OF
PARTIES AND WITNESSES, AND WOULD BE IN THE INTEREST OF JUSTICE, THE
DISTRICT COURT GRANTED THE RAILROAD'S MOTION.  PETITIONER THEN FILED
DIRECTLY IN THIS COURT A "MOTION FOR LEAVE TO FILE PETITION FOR ORDER
TO SHOW CAUSE WHY WRITS OF MANDAMUS (AGAINST THE COURT BELOW) AND
PROHIBITION (AGAINST THE KENTUCKY DISTRICT COURT) SHOULD NOT ISSUE, AND
PETITION FOR SAME."  PETITIONER MAKES NO ALLEGATION THAT THE COURT
BELOW ABUSED ITS DISCRETION; HIS SOLE CONTENTION IS THAT THE ORDER OF
TRANSFER EXCEEDED THE DISTRICT COURT'S AUTHORITY.  SINCE THAT ISSUE
SEEMED OF IMPORTANCE IN THE ADMINISTRATION OF JUSTICE,  FN4  WE
ASSIGNED THE CASE FOR HEARING ON THE MOTION.  335 U.S. 897(1948). 

PRIOR TO THE CURRENT REVISION OF TITLE 28 OF THE U.S.C.  FORUM NON
CONVENIENS WAS NOT AVAILABLE IN FEDERAL EMPLOYERS' LIABILITY ACT
SUITS.  BALTIMORE & OHIO R. CO. V. KEPNER, 314 U.S. 44(1941); MILES V.
ILLINOIS CENTRAL R. CO., 315 U.S. 698(1942); SEE GULF OIL CORP. V.
GILBERT, 330 U.S. 501, 505(1947).  THE NEW CODE, HOWEVER, PROVIDES THAT
"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."  THIS IS SEC.
1404(A).  THE REVISER'S NOTES, WHICH ACCOMPANY EACH SECTION OF THE
CODE, HERE READ AS FOLLOWS:  "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, 62 S. CT. 6, 314 U.S. 44, 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."  FN5  THE PRECISE ISSUE BEFORE US IS
WHETHER, DESPITE THESE EXPRESSIONS, THE LAW REMAINS UNCHANGED. 
PETITIONER SO CONTENDS. 

FIRST.  THE COURT BELOW RELIED ON THE LANGUAGE OF SEC. 1404(A),
SUPRA, WHICH IT REGARDED AS "UNAMBIGUOUS, DIRECT, CLEAR."  WE AGREE. 
THE REACH OF "ANY CIVIL ACTION"  FN6  IS UNMISTAKABLE.  THE PHRASE IS
USED WITHOUT QUALIFICATION, WITHOUT HINT THAT SOME SHOULD BE EXCLUDED. 
FROM THE STATUTORY TEXT ALONE, IT IS IMPOSSIBLE TO READ THE SECTION AS
EXCISING THIS CASE FROM "ANY CIVIL ACTION." 

THE ONLY SUGGESTION PETITIONER OFFERS IN THIS REGARD IS THAT "ANY
CIVIL ACTION" EMBRACES ONLY THOSE ACTIONS FOR WHICH SPECIAL VENUE
REQUIREMENTS ARE PRESCRIBED IN SECS. 1394-1403 OF REVISED TITLE 28,
FN7  SINCE THESE SECTIONS IMMEDIATELY PRECEDE SEC. 1404(A), AND ALL ARE
WITHIN THE VENUE CHAPTER (SECS. 1391-1406, INCLUSIVE) OF THE CODE.  TO
ACCEPT THIS CONTENTION, WE WOULD BE REQUIRED COMPLETELY TO DISREGARD
THE CONGRESSIONAL ADMONITION THAT "NO INFERENCE OF A LEGISLATIVE
CONSTRUCTION IS TO BE DRAWN BY REASON OF THE CHAPTER IN TITLE 28  ...
IN WHICH ANY ANY SECTION IS PLACED  ..."  FN8  FURTHERMORE,
PETITIONER'S ARGUMENT PROVES TOO MUCH:  SECS. 1391-1393, WHICH ALSO ARE
IN THE VENUE CHAPTER AND ALSO REFER TO "ANY CIVIL ACTION," WOULD BE
READ AS APPLYING ONLY TO ACTIONS FOR WHICH SPECIAL VENUE REQUIREMENTS
ARE ESTABLISHED IN NEIGHBORING SECTIONS OF THE CODE, ALTHOUGH THEY WERE
OBVIOUSLY INTENDED BY CONGRESS TO BE THE GENERAL VENUE SECTIONS
APPLICABLE TO ORDINARY ACTIONS.  IT SEEMS MORE REASONABLE TO HOLD THAT
SEC. 1404(A) IN TERMS APPLIES GENERALLY, I.E., TO "ANY CIVIL ACTION." 

SECOND.  ALTHOUGH PETITIONER WISHES TO RESTRICT THE LITERAL MEANING
OF "ANY CIVIL ACTION," HE WOULD EXPAND THE SENSE OF "MAY TRANSFER  ...
TO ANY OTHER DISTRICT OR DIVISION WHERE IT MIGHT HAVE BEEN BROUGHT"
BEYOND THE EXACT SCOPE OF THOSE WORDS.  OBVIOUSLY, THE EXPRESS LANGUAGE
GIVES NO CLUE AS TO WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT."  YET
THE ESSENCE OF PETITIONER'S POSITION IS THAT THE ORDER BELOW,
TRANSFERRING HIS SUIT, EFFECTS A REPEAL OF SEC. 6 OF THE FEDERAL
EMPLOYERS' LIABILITY ACT, WHICH GRANTED HIM THE RIGHT TO SUE IN ANY
DISTRICT "IN WHICH THE DEFENDANT SHALL BE DOING BUSINESS AT THE TIME OF
COMMENCING SUCH ACTION."  FN9 

OF THE CODE DEALS WITH THE RIGHT TO TRANSFER AN ACTION PROPERLY
BROUGHT.  THE TWO SECTIONS DEAL WITH TWO SEPARATE AND DISTINCT
PROBLEMS.  FN10  SECTION 1404(A) DOES NOT LIMIT OR OTHERWISE MODIFY ANY
RIGHT GRANTED IN SEC. 6 OF THE LIABILITY ACT OR ELSEWHERE TO BRING SUIT
IN A PARTICULAR DISTRICT.  AN ACTION MAY STILL BE BROUGHT IN ANY COURT,
STATE OR FEDERAL, IN WHICH IT MIGHT HAVE BEEN BROUGHT PREVIOUSLY. 

THE CODE, THEREFORE, DOES NOT REPEAL SEC. 6 OF THE FEDERAL EMPLOYERS'
LIABILITY ACT.  WE AGREE WITH PETITIONER THAT CONGRESS HAD NO SUCH
INTENTION, AS DEMONSTRATED BY ITS FAILURE TO LIST THE SECTION IN THE
METICULOUSLY PREPARED SCHEDULE OF STATUTES REPEALED.  FN11  WE CANNOT
AGREE THAT THE ORDER BEFORE US EFFECTUATES AN IMPLIED REPEAL.  THE
INAPPLICABILITY OF FORUM NON CONVENIENS TO LIABILITY ACT SUITS DERIVES
FROM THE KEPNER DECISION.  AND THERE THIS COURT EXPRESSLY STATED THAT
"IF IT IS DEEMED UNJUST, THE REMEDY IS LEGISLATIVE  ...  "  314 U.S. AT
54.  THAT OPINION DISCUSSES SEC. 6 OF THE LIABILITY ACT, TO BE SURE,
BUT THIS COURT DID NOT AND COULD NOT SUGGEST THAT THE LEGISLATIVE
ANSWER HAD NECESSARILY TO BE ADDRESSED TO THAT SECTION.  SINCE THE
WORDS SELECTED BY CONGRESS FOR SEC. 6 DENOTE NOTHING, ONE WAY OR THE
OTHER, RESPECTING FORUM NON CONVENIENS, THERE WAS NO OCCASION TO REPEAL
THAT SECTION, EXPRESSLY OR IMPLIEDLY; CONGRESS CHOSE TO REMOVE ITS
JUDICIAL GLOSS VIA ANOTHER STATUTE.  DISCUSSION OF THE LAW OF IMPLIED
REPEALS IS, THEREFORE, IRRELEVANT. 

THIRD.  PETITIONER'S CHIEF ARGUMENT PROCEEDS NOT FROM ONE SIDE OR THE
OTHER OF THE LITERAL BOUNDARIES OF SEC. 1404(A), BUT FROM ITS
LEGISLATIVE HISTORY.  THE SHORT ANSWER IS THAT THERE IS NO NEED TO
REFER TO THE LEGISLATIVE HISTORY WHERE THE STATUTORY LANGUAGE IS
CLEAR.  "THE PLAIN WORDS AND MEANING OF A STATUTE CANNOT BE OVERCOME BY
A LEGISLATIVE HISTORY WHICH, THROUGH STRAINED PROCESSES OF DEDUCTION
FROM EVENTS OF WHOLLY AMBIGUOUS SIGNIFICANCE, MAY FURNISH DUBIOUS BASES
FOR INFERENCE IN EVERY DIRECTION."  GEMSCO V. WALLING, 324 U.S. 244,
260(1945).  THIS CANON OF CONSTRUCTION HAS RECEIVED CONSISTENT
ADHERENCE IN OUR DECISIONS.  FN12 

NEVERTHELESS, WE NEED NOT REST OUR DECISION ON IT SOLELY.  FOR THE
LEGISLATIVE HISTORY DOES NOT SUPPORT PETITIONER'S POSITION. 
PETITIONER'S ARGUMENT IS BASED ON THESE TWIN PREMISES:  CONGRESS
INTENDED NO "CONTROVERSIAL CHANGE" TO BE INCORPORATED IN THE CODE; AND
SEC. 1404(A) IS SUCH A CHANGE. 

TO ESTABLISH THE FORMER PREMISE, PETITIONER CITES A NUMBER OF
STATEMENTS BY LEGISLATIVE LEADERS IN CHARGE OF THE CODE REVISION.  FOR
EXAMPLE, REPRESENTATIVE KEOGH, CHAIRMAN OF THE HOUSE COMMITTEE ON THE
REVISION OF THE LAWS WHICH INITIATED THE WORK, SAID AT THE HEARING
BEFORE THE HOUSE JUDICIARY SUBCOMMITTEE, "THE POLICY THAT WE ADOPTED
...  WAS TO AVOID WHEREVER POSSIBLE AND WHENEVER POSSIBLE THE ADOPTION
IN OUR REVISION OF WHAT MIGHT BE DESCRIBED AS CONTROVERSIAL SUBSTANTIVE
CHANGES OF LAW."  FN13  AND SENATOR DONNELL, CHAIRMAN OF THE SENATE
JUDICIARY SUBCOMMITTEE CONSIDERING THE CODE, SAID ON THE FLOOR THAT "
...  THE PURPOSE OF THIS BILL IS PRIMARILY TO REVISE AND CODIFY AND TO
ENACT INTO POSITIVE LAW, WITH SUCH CORRECTIONS AS WERE DEEMED BY THE
COMMITTEE TO BE OF SUBSTANTIAL AND NONCONTROVERSIAL NATURE."  FN14  BUT
THESE STATEMENTS CLEARLY ARE NOT UNEQUIVOCAL PROMISES THAT NO CHANGES
WOULD BE MADE.  THE LEGISLATION WAS ANNOUNCED TO BE A REVISION AS WELL
AS A CODIFICATION.  IT IS OBVIOUS THAT THE CHANGES IN LAW RETAINED IN
THE CODE WERE NOT CONSIDERED AS "CONTROVERSIAL" BY THESE CONGRESSIONAL
SPOKESMEN. 

PETITIONER DOES NOT OFFER ANY DEFINITION OF "CONTROVERSIAL," BUT HE
DOES POINT TO ONE CONCRETE EXAMPLE OF WHAT HE REGARDS AS A
"CONTROVERSIAL" MEASURE.  THIS IS THE JENNINGS BILL,  FN15  WHICH WAS
UNDER CONSIDERATION IN THE HOUSE IN THE SPRING OF 1947, AS WAS THE CODE
REVISION.  FN16  THE JENNINGS BILL AND SEC. 1404(A) OF THE CODE MEET
THE SAME PROBLEM, THE ALLEGED ABUSES IN THE SELECTION OF FORUMS FOR
LIABILITY ACT SUITS.  FN17  BUT THE JENNINGS BILL WAS FAR MORE DRASTIC
THAN SEC. 1404(A).  THE JENNINGS BILL WOULD IN LARGE PART HAVE REPEALED
SEC. 6 OF THE LIABILITY ACT.  IT WOULD HAVE DELIMITED THE AVAILABLE
FORUM FOR ACTIONS BROUGHT IN STATE AS WELL AS FEDERAL COURTS.  FN18  IT
WOULD HAVE ELIMINATED THE RIGHT TO SUE IN ANY DISTRICT IN WHICH THE
RAILROAD DID BUSINESS.  INITIALLY, THIS APPLIED ONLY TO FEDERAL
EMPLOYERS' LIABILITY ACT PLAINTIFFS, BUT IN FINAL DRAFT THE JENNINGS
BILL GENERALLY RESTRICTED ALL, INCLUDING PASSENGERS, WHO MIGHT SUE
RAILROADS FOR PERSONAL INJURIES.  INASMUCH AS NONE OF THESE CHANGES IN
THE LAW WAS CONTAINED IN THE CODE, IT IS EVIDENT THAT SEC. 1404(A)
MIGHT WELL BE CONSIDERED "NONCONTROVERSIAL" BY THE SAME CONGRESS WHICH
WOULD REGARD THE JENNINGS BILL AS "CONTROVERSIAL."  FN19 

MOREOVER, EVEN IF WE COULD DISTILL FROM THE LEGISLATIVE HISTORY OF
THE JENNINGS BILL A USABLE CONCEPT OF "CONTROVERSIAL CHANGE," ITS
APPLICATION WOULD DESTROY PETITIONER'S CASE.  FOR PETITIONER CONCEDES
THAT IN FACT SEC. 1404(A) DID NOT AROUSE CONTROVERSY; HE SUBMITS THE
JENNINGS BILL AS CONTRAST.  HIS ARGUMENT IS OBVIOUSLY BASED NOT ON THE
ACTUAL LEGISLATIVE HISTORY OF SEC. 1404(A), BUT ON NECESSARILY VAGUE
SPECULATION AS TO WHAT CONGRESS MIGHT HAVE DONE HAD IT FULLY REALIZED
THAT FORUM NON CONVENIENS WAS HENCEFORTH TO BE APPLICABLE IN FEDERAL
EMPLOYERS' LIABILITY ACT SUITS.  THE REQUISITE ASSUMPTION, THAT
CONGRESS DID NOT APPRECIATE THE SIGNIFICANCE OF ITS ACTION WHEN IT
RATIFIED THE CODE AND SEC. 1404(A) THEREIN, IS CONTRARY TO THE FACTS
SHOWN BY THE LEGISLATIVE HISTORY WHICH IS OF RECORD.  THE LACK OF
CONTROVERSY REFLECTED AWARE AGREEMENT AND NOT THE INERTIA OF
IGNORANCE. 

THIS WAS SCARCELY HASTY, ILL-CONSIDERED LEGISLATION.  TO THE
CONTRARY, IT RECEIVED CLOSE AND PROLONGED STUDY.  FIVE YEARS OF
CONGRESSIONAL ATTENTION SUPPORTS THE CODE.  FN20  AND FROM THE START,
CONGRESS OBTAINED THE MOST EMINENT EXPERT ASSISTANCE AVAILABLE.  THE
SPADEWORK WAS ENTRUSTED TO TWO LAWBOOK-PUBLISHING FIRMS, THE STAFFS OF
WHICH HAD UNIQUE EXPERIENCE IN STATUTORY CODIFICATION AND REVISION. 
FN21  THEY FORMED AN ADVISORY COMMITTEE, INCLUDING DISTINGUISHED JUDGES
AND MEMBERS OF THE BAR, AND OBTAINED THE SERVICES OF SPECIAL
CONSULTANTS.  FN22 FURTHERMORE, AN ADVISORY COMMITTEE WAS APPOINTED BY
THE JUDICIAL CONFERENCE N23.  AND TO ASSIST WITH MATTERS RELATING TO
THE JURISDICTION OF THIS COURT, CHIEF JUSTICE STONE APPOINTED AN
ADVISORY COMMITTEE, CONSISTING OF HIMSELF AND JUSTICES FRANKFURTER AND
DOUGLAS.  FN24 

THAT THESE EXPERTS ASSISTED IN DRAFTING THE CODE DOES NOT MEAN THAT
CONGRESS BLINDLY APPROVED WHAT OUTSIDERS DID.  THIS IS DEMONSTRATED,
FOR EXAMPLE, BY THE STATEMENT OF REPRESENTATIVE ROBSION, CHAIRMAN OF
THE HOUSE JUDICIARY SUBCOMMITTEE, AT THE HEARING CONDUCTED BY HIS
SUBCOMMITTEE IN 1947.  "WE SHALL DO THE SAME AS WE DID LAST YEAR  ...
JUST READ THEM LINE BY LINE AND HAVE YOU AND OTHER EXPERT CONDIFIERS
AND OTHER PERSONS GO OVER THE BILL WITH US."  FN25    PETITIONER ALMOST
SEEMS TO IMPLY THAT THIS VERY CAREFUL COMMITTEE CONSIDERATION VITIATES
THE LEGISLATION.  BUT THE COMMITTEE SYSTEM IS INTEGRAL IN TYPICAL
LEGISLATIVE PROCEDURE; CONGRESS COULD NOT FUNCTION WITHOUT IT.  FN26  A
CANON OF CONSTRUCTION WHICH WOULD DISCOUNT STATUTORY WORDS PRO TANTO,
THE GREATER THE EXPERTISE OR THE MORE METICULOUS THE COMMITTEE
CONSIDERATION DEVOTED THERETO, OR THE LONGER AND MORE COMPLEX THE
LEGISLATION, WOULD BE ABSURD, NOT LEAST BECAUSE IT WOULD MAKE MOCKERY
OF THE TECHNIQUES OF STATUTORY INTERPRETATION WHICH HAVE HERETOFORE
BEEN USED BY THE COURTS. 

THE EXPERTS AND THE COMMITTEES DID NOT ATTEMPT TO CONCEAL THE
PROPOSED REVISIONS.  "THE COMMITTEE ON REVISION OF THE LAWS IN THE
PREPARATION OF THOSE PRELIMINARY DRAFTS SOUGHT TO GIVE THEM THE WIDEST
POSSIBLE CIRCULATION.  WE MADE CERTAIN THAT EVERY MEMBER OF THE
LEGISLATURE GOT ONE; WE MADE CERTAIN THAT THEY WERE SENT TO EVERY
UNITED STATES ATTORNEY; THAT THEY WERE SENT TO EVERY MEMBER OF THE
FEDERAL JUDICIARY; THAT THEY WERE SENT TO THE APPROPRIATE COMMITTEES OF
THE LEADING STATE AND LOCAL BAR ASSOCIATIONS; THAT THEY WERE SENT TO
EVERYONE WHO EVER EVIDENCED ANY INTEREST IN THE WORK AT ALL."  FN27
INDICATIVE OF THE SUCCESS IN PUBLICIZING THE PROVISIONS OF THE CODE IS
THE FACT THAT THERE WAS SPECIFIC TREATMENT OF SEC. 1404(A) AND ITS
APPLICABILITY TO FEDERAL EMPLOYERS' LIABILITY ACT SUITS IN A NUMBER OF
LEGAL PERIODICALS.  FN28 

THE INITIAL APPEARANCE OF SEC. 1404(A) WAS IN THE SECOND DRAFT OF THE
CODE, ADOPTED BY THE MEETING OF MAY, 1945.  ITS TEXT HAS REMAINED
UNCHANGED.  IT WAS ACCOMPANIED BY A REVISER'S NOTE, WHICH RECITED THAT
"SUBSECTION (A) IS NEW.  IT WAS DRAFTED IN ACCORDANCE WITH A MEMORANDUM
OF MAR. 7, 1945, FROM THE AUTHOR OF MOORE'S FEDERAL PRACTICE, STATING
THAT RECOGNITION SHOULD BE GIVEN THE DOCTRINE OF FORUM NON CONVENIENS
...  "  FN29  THE BALANCE OF THAT NOTE WAS SUBSTANTIALLY THE SAME AS
THE PRESENT REVISER'S NOTE; IT EXPRESSLY CITED THE KEPNER CASE, AN
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, AS DEMONSTRATING THE
NEED FOR SEC. 1404(A).  AND THE REVISER'S NOTES WERE BEFORE THE
CONGRESS AT EVERY SUBSEQUENT LEGISLATIVE STEP. 

A PRELIMINARY DRAFT OF THE CODE WAS PRINTED LATE IN 1945 FOR THE USE
OF THE HOUSE COMMITTEE ON REVISION OF THE LAWS.  IN THIS DRAFT, THE
REVISER'S NOTES APPEAR DIRECTLY BELOW EACH RELATED SECTION OR
SUBSECTION.  SECTION 1404(A) AND ITS NOTE WERE IN THIS DRAFT, WHICH, AS
NOTED ABOVE, WAS GIVEN VERY WIDE CIRCULATION. 

JULY 24, 1946, THE HOUSE ORDERED TO BE PRINTED THE REPORT SUBMITTED
BY REPRESENTATIVE KEOGH OF NEW YORK, CHAIRMAN OF THE HOUSE COMMITTEE ON
REVISION OF THE LAWS, ON THE CODIFICATION OF TITLE 28.  FN30  THIS
REPORT CONSISTED OF A PRELIMINARY STATEMENT AND A FULL PRINTING OF THE
REVISER'S NOTES.  SECTION 1404(A) APPEARS IN THAT REPORT, TOGETHER WITH
ITS NOTE.  THERE WAS NO FURTHER ACTION ON THE CODE IN THE SEVENTY-NINTH
CONGRESS. 

IN THE EIGHTIETH CONGRESS, UNDER THE LEGISLATIVE REORGANIZATION ACT
OF 1946,  FN31 THE CODE REVISION PASSED TO THE JURISDICTION OF THE
HOUSE JUDICIARY COMMITTEE AND WAS ASSIGNED TO A SUBCOMMITTEE OF WHICH
REPRESENTATIVE ROBSION OF KENTUCKY WAS CHAIRMAN.  AT THE HEARING BEFORE
THIS SUBCOMMITTEE, PROFESSOR JAMES WILLIAM MOORE OF YALE UNIVERSITY,
SPECIAL CONSULTANT TO THE REVISERS, IN SUMMARIZING THE CODE PROPOSALS,
TESTIFIED THAT THERE WERE "CHANGES OF IMPORTANCE" IN THE LAW OF VENUE
AND SPECIFICALLY MENTIONED SEC. 1404.  FN32  IN APRIL, 1947, THE HOUSE
JUDICIARY COMMITTEE REPORTED THE BILL WITH A UNANIMOUS RECOMMENDATION
THAT IT BE PASSED.  FN33  THIS REPORT AGAIN FULLY REPRINTED THE
REVISER'S NOTES.  IN THIS REPORT, THE SECTION ENTITLED "EXAMPLES OF
CHANGES IN LAW," WHICH HAD APPEARED IN THE REPORT ON THE REVISION IN
THE PRECEDING SESSION OF CONGRESS, EXPRESSLY REFERRED TO THE REVISER'S
NOTES FOR SECS. 1391-1406.  FN34 

AFTER THIS PAINSTAKING CONSIDERATION, WITH ITS REFERENCES TO SEC.
1404(A), THE HOUSE INITIALLY PASSED THE BILL ON JULY 7, 1947.  FN35  AT
THAT TIME AND IN THE SUBSEQUENT CONSIDERATION IN THE SENATE, THE TAX
COURT PROVISIONS OCCASIONED THE MOST DISCUSSION; BUT OTHER SPECIFIC
1404(A) BY ONE WITNESS AT THE HEARINGS BEFORE THE SENATE JUDICIARY
SUBCOMMITTEE, ALTHOUGH HIS INTEREST WAS NOT IN THE FEDERAL EMPLOYERS'
LIABILITY ACT ISSUE.  FN36  NO CHANGE IN SEC. 1404(A) WAS INCLUDED IN
THE SENATE AMENDMENTS; AND THE REVISION OF TITLE 28 WAS ENACTED BY THE
CONGRESS IN JUNE, 1948.  FN37 

THUS, AT ALMOST EVERY STAGE OF THE LEGISLATIVE PROCEDURE, ATTENTION
WAS DIRECTED TO THE FACT OF CHANGE, AND IN MOST INSTANCES SPECIFIC
MENTION WAS MADE OF SEC. 1404(A).  AT NO STAGE SUBSEQUENT TO THE FIRST
FORMAL PRINTING DID SEC. 1404(A) AND ITS ACCOMPANYING REVISER'S NOTE
FAIL TO APPEAR.  FROM THE START, SEC. 1404(A) REMAINED THE SAME, AND
THE REFERENCE IN THE NOTE TO A FEDERAL EMPLOYERS' LIABILITY ACT CASE AS
SHOWING THE NEED FOR PERMITTING THE APPLICATION OF FORUM NON CONVENIENS
REMAINED UNCHANGED.  NOW TO HOLD THAT CONGRESS DID NOT APPRECIATE WHAT
IT WAS ENACTING IN THAT SECTION WOULD DEFY THE LEGISLATIVE HISTORY.  WE
MUST FLATLY REJECT PETITIONER'S THESIS THAT THIS SECTION WAS SO
OBSCURED THAT ITS ENACTMENT IS MEANINGLESS.  WE CANNOT BLIND OURSELVES
TO THE HEARINGS, TO THE EXPERTS, TO THE COMMITTEE REPORTS, TO THE
REVISER'S NOTES AND THEIR INCORPORATION IN THE COMMITTEE REPORTS - TO A
HISTORY OF THE MOST METICULOUS CONGRESSIONAL CONSIDERATION. 

FOURTH.  PETITIONER SUGGESTS THAT HIS ACTION MAY NOT BE TRANSFERRED
BECAUSE IT WAS INSTITUTED PRIOR TO THE EFFECTIVE DATE OF THE CODE. 
CLEARLY, SEC. 1404(A) IS A REMEDIAL PROVISION APPLICABLE TO PENDING
ACTIONS.  AND "NO ONE HAS A VESTED RIGHT IN ANY GIVEN MODE OF PROCEDURE
...  "  CRANE V. HAHLO, 258 U.S. 142, 147(1922).  FN38 

FIFTH.  SINCE THE PETITION FOR MANDAMUS AND PROHIBITION MUST BE
DENIED BECAUSE OF THE VIEW WE MUST TAKE AS TO THE MEANING OF SEC.
1404(A) AND ITS APPLICABILITY TO THIS CASE, WE NEED NOT DECIDE WHETHER
DENIAL MIGHT BE PLACED ON OTHER GROUNDS ALSO.  "MANDAMUS, PROHIBITION
AND INJUNCTION AGAINST JUDGES ARE DRASTIC AND EXTRAORDINARY REMEDIES. 
...  AS EXTRAORDINARY REMEDIES, THEY ARE RESERVED FOR REALLY
EXTRAORDINARY CAUSES."  EX PARTE FAHEY, 332 U.S. 258, 259, 260(1947). 
FN39 

WHAT WE HOLD IS THAT THE PLAIN MEANING OF THE STATUTORY WORDS AND THE
CONSISTENT COURSE OF THE LEGISLATIVE HISTORY ARE OPPOSED TO
PETITIONER'S CONTENTION THAT WE MUST DISREGARD SEC. 1404(A) BECAUSE
CONGRESS KNEW NOT WHAT IT DID.  IF PETITIONER'S SHOWING COULD SUSTAIN A
DECISION THAT THIS SECTION WAS NOT REALLY ENACTED AFTER ALL, LITTLE LAW
WOULD REMAIN. 

THE MOTION IS DENIED. 

FN1  ACT OF JUNE 25, 1948, 62 STAT. 869:  "AN ACT TO REVISE, CODIFY,
AND ENACT INTO LAW TITLE 28 OF THE U.S.C. ENTITLED 'JUDICIAL CODE AND
JUDICIARY.'" 

FN2  35 STAT. 65, AS AMENDED BY 36 STAT. 291, AND 53 STAT. 1404, 45
U.S.C. SECS. 51-59. 

FN3  ACT OF JUNE 25, 1948, 62 STAT. 869, 992, SEC. 38. 

FN4  AT LEAST FIVE DISTRICT COURT DECISIONS DEALING WITH THE
RELATIONSHIP OF SEC. 1404(A) TO FELA SUITS HAVE BEEN REPORTED.  FOUR
HAVE HELD THAT THE SECTION IS APPLICABLE.  HAYES V. CHICAGO, R.I. &
P.R. CO. (AND SEVEN OTHER CASES), 79 F.SUPP.  821(1948); WHITE V.
THOMPSON, 80 F.SUPP.  411(1948); NUNN V. CHICAGO, M., ST. P. & P.R.
CO., 80 F.SUPP.  745(1948); SCOTT V. NEW YORK CENTRAL R. CO., 81
F.SUPP.  815(1948); CF. BRAINARD V. ATCHISON, T. & S.F.R. CO., 81
F.SUPP.  211(1948); PERRY V. ATCHISON, T. & S.F.R. CO., 82 F.SUPP. 
912(1948)(IN BOTH, MOTION TO TRANSFER DENIED, IN EXERCISE OF
"DISCRETIONARY POWERS"); CHAFFIN V. CHESAPEAKE & O.R. CO., 80 F.SUPP. 
957(1948); RICHER V. CHICAGO, R.I. & P.R. CO., 80 F.SUPP.  971(1948). 
ONE REPORTED DECISION HAS HELD THAT THE CODE SECTION IS INAPPLICABLE TO
SUCH SUITS.  PASCARELLA V. NEW YORK CENTRAL R. CO., 81 F.SUPP. 
95(1948). 

FN5  H.R. REP. NO. 308, 80TH CONG., 1ST SESS. A 132(1947); H.R. REP.
NO. 2646, 79TH CONG., 2D SESS. A 127(1946). 

FN6  THE REVISER'S NOTES MAKE CLEAR THAT THE PHRASE WAS SUBSTITUTED
FOR "SUIT," FORMERLY USED IN VARIOUS VENUE STATUTES, IN THE LIGHT OF
RULE 2 OF THE FED. RULES CIV. PROC.:  "THERE SHALL BE ONE FORM OF
ACTION TO BE KNOWN AS 'CIVIL ACTION'." 

FN7  SECTION 1394 DEALS WITH ANY CIVIL ACTION "BY A NATIONAL BANKING
ASSOCIATION TO ENJOIN THE COMPTROLLER OF THE CURRENCY"; SEC. 1395,
PROCEEDINGS "FOR THE RECOVERY OF A PECUNIARY FINE" AND "FOR THE
FORFEITURE OF PROPERTY" UNDER VARYING CIRCUMSTANCES; SEC. 1396, "ANY
CIVIL ACTION FOR THE COLLECTION OF INTERNAL REVENUE TAXES"; SEC. 1397,
"OF INTERPLEADER"; SEC. 1398, "ANY CIVIL ACTION TO ENFORCE, SUSPEND OR
SET ASIDE IN WHOLE OR IN PART AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION"; SEC. 1399, "FOR THE PARTITION OF LANDS, WHERE THE UNITED
STATES IS ONE OF THE TENANTS IN COMMON OR JOINT TENANTS"; SEC. 1400,
ACTIONS "RELATING TO COPYRIGHTS" OR "FOR PATENT INFRINGEMENT"; SEC.
1401, "BY A STOCKHOLDER ON BEHALF OF HIS CORPORATION"; SEC. 1402,
"AGAINST THE UNITED STATES"; AND SEC. 1403, "TO CONDEMN REAL ESTATE FOR
THE USE OF THE UNITED STATES." 

FN8  ACT OF JUNE 25, 1948, 62 STAT. 869, 991, SEC. 33. 

FN9  "UNDER THIS CHAPTER AN ACTION MAY 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.  ...  "  45 U.S.C. SEC. 56.  FOR A BRIEF HISTORICAL SKETCH, SEE
BALTIMORE & O.R. CO. V. KEPNER, 314 U.S. 44, 49-50(1941). 

FN10  IN ALMOST EVERY STATE, THE REQUIREMENTS FOR VENUE AND FOR
TRANSFER ARE TREATED IN DIFFERENT STATUTORY SECTIONS.  BRIEF FOR NEW
YORK, C. & ST. L.R. CO. AS AMICUS CURIAE, PP. 11-12, KILPATRICK V.
TEXAS & PAC. R. CO., POST, P. 75.  SEE, E.G., N.Y. CIVIL PRACTICE ACT,
SECS. 182, 187. 

FN11  ACT OF JUNE 25, 1948, 62 STAT. 869, 992, SEC. 39.  CONGRESS DID
LIST THE PERTINENT STATUTES, WHEN CODE PROVISIONS IN FACT CHANGED THE
BASIC VENUE REQUIREMENTS.  FOR EXAMPLE, SECS. 1394, 1395, 1396 AND
1400, RESPECTIVELY, PRESCRIBE A NEW DEFINITION OF APPROPRIATE FORUMS
FOR ACTIONS AGAINST THE COMPTROLLER OF THE CURRENCY, INVOLVING FINES
AND FORFEITURES, INTERNAL REVENUE TAXES AND PATENT AND COPYRIGHT SUITS;
AND THE FOLLOWING STATUTES ARE THEREFORE LISTED AS REPEALED:  28 U.S.C.
SEC. 110; 28 U.S.C. SECS. 104, 107, 108; 28 U.S.C. SEC. 105; 28 U.S.C.
SEC. 109 AND 17 U.S.C. SEC. 35. 

FN12  E.G., PACKARD MOTOR CAR CO. V. LABOR BOARD, 330 U.S. 485,
492(1947); UNITED STATES V. AMERICAN TRUCKING ASSOCIATIONS, 310 U.S.
534, 543(1940) AND CASES THERE CITED. 

THE RULE AS TO STATUTORY REVISIONS IS THE SAME.  CONTINENTAL CASUALTY
CO. V. UNITED STATES, 314 U.S. 527, 530(1942); BATE REFRIGERATING CO.
V. SULZBERGER, 157 U.S. 1, 45(1895); UNITED STATES V. BOWEN, 100 U.S.
508, 513(1880). 

FN13  HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 1600
AND H.R. 2055, 80TH CONG., 1ST SESS. 6(1947).  HE ALSO TESTIFIED AS
FOLLOWS:  "  ...  WE PROCEEDED UPON THE HYPOTHESIS THAT SINCE THAT WAS
PRIMARILY A RESTATEMENT OF EXISTING LAW, WE SHOULD NOT ENDANGER ITS
ACCOMPLISHMENT BY THE INCLUSION IN THE WORK OF ANY HIGHLY CONTROVERSIAL
CHANGES IN LAW."  AND, IN RESPONSE TO THE CHAIRMAN'S QUESTION, "AND
THIS BILL DOES NOT INCLUDE CONTROVERSIAL MATTERS?"  REP. KEOGH REPLIED
THAT "WE HAVE SOUGHT TO AVOID AS FAR AS POSSIBLE  ...  ANY SUBSTANTIVE
CHANGES THAT DID NOT MEET WITH UNANIMITY OF OPINION."  IBID., 11. 

FN14  94 CONG. REC. 7928(1948).  THE SENATOR HAD JUST GIVEN AN
ILLUSTRATION OF "VARIOUS CHANGES THAT HAVE BEEN MADE." 

FN15  H.R. 1639, 80TH CONG., 1ST SESS.:  "A BILL TO AMEND THE
EMPLOYERS' LIABILITY ACT SO AS TO LIMIT VENUE  ...  "  AS ULTIMATELY
REPORTED TO THE HOUSE, IT REPEALED ALL OF SEC. 6 OF THE FEDERAL
EMPLOYERS' LIABILITY ACT, EXCEPT THE LAST SENTENCE PROHIBITING REMOVAL
OF ACTIONS BROUGHT IN STATE COURTS TO FEDERAL COURTS; AND ADDED THE
FOLLOWING PARAGRAPH TO THE THEN GENERAL VENUE STATUTE, SEC. 51 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 112:  "A CIVIL SUIT FOR DAMAGES FOR
WRONGFUL DEATH OR PERSONAL INJURIES AGAINST ANY INTERSTATE COMMON
CARRIER BY RAILROAD MAY BE BROUGHT ONLY IN A DISTRICT COURT OF THE
UNITED STATES OR IN A STATE COURT OF COMPETENT JURISDICTION, IN THE
DISTRICT OR COUNTY (PARISH), RESPECTIVELY, IN WHICH THE CAUSE OF ACTION
AROSE, OR WHERE THE PERSON SUFFERING DEATH OR INJURY RESIDED AT THE
TIME IT AROSE:  PROVIDED, THAT IF THE DEFENDANT CANNOT BE SERVED WITH
PROCESS ISSUING OUT OF ANY OF THE COURTS AFOREMENTIONED, THEN AND ONLY
THEN, THE ACTION MAY BE BROUGHT IN A DISTRICT COURT OF THE UNITED
STATES, OR IN A STATE COURT OF COMPETENT JURISDICTION, AT ANY PLACE
WHERE THE DEFENDANT SHALL BE DOING BUSINESS AT THE TIME OF THE
INSTITUTION OF SAID ACTION."  H.R. REP. NO. 613, 80TH CONG., 1ST SESS.,
PT. 1, 9-10(1947). 

FN16  THE HOUSE COMMITTEE ON THE JUDICIARY HELD HEARINGS ON THE CODE,
BEFORE SUBCOMMITTEE NO. 1, ON MAR. 7, 1947, AND FOUR HEARINGS ON THE
JENNINGS BILL, BEFORE SUBCOMMITTEE NO. 4, FROM MAR. 28 TO APRIL 18,
1947.  CONGRESSMAN JENNINGS HIMSELF WAS A MEMBER OF SUBCOMMITTEE NO. 1,
CONSIDERING THE CODE.  CONGRESSMAN DEVITT, A MEMBER OF SUBCOMMITTEE NO.
4, CONSIDERING THE JENNINGS BILL, TESTIFIED IN FAVOR OF THE CODE;
HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 1600 AND H.R.
2055(CODE), 80TH CONG. 1ST SESS. 3(1947); HEARINGS BEFORE SENATE
COMMITTEE ON THE JUDICIARY ON H.R. 3214(CODE), 80TH CONG., 2D SESS.
16(1948). 

THE UNANIMOUS JUDICIARY COMMITTEE REPORT FAVORING THE CODE WAS
PUBLISHED IN APRIL, 1947.  H.R. REP. NO. 308, 80TH CONG., 1ST SESS.
THE DIVIDED REPORT ON THE JENNINGS BILL WAS SUBMITTED IN JUNE.  H.R.
REP. NO. 613, 80TH CONG., 1ST SESS. (IN THREE PARTS).    ON JULY 7,
1947, THE HOUSE PASSED THE PROPOSED REVISION BY A VOTE OF 342 TO 23. 
93 CONG. REC. 8392.  TEN DAYS LATER, THE JENNINGS BILL WAS PASSED BY
203 TO 188.  93 CONG. REC. 9193-4. 

FN17  SEE, E.G., HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON
H.R. 1639, 80TH CONG., 1ST SESS. 6-12, 17-22, 31-8(1947); H.R. REP. NO.
613, 80TH CONG., 1ST SESS., PT. 1, 3-6; PT. 2, 1-2, 4(1947). 

FN18  AS ONE OF ITS THREE GROUNDS OF OPPOSITION TO THE JENNINGS BILL,
THE MINORITY REPORT STATED, "THE BILL RESTRICTS STATE COURTS IN THE
ADMINISTRATION OF JUSTICE, DEPRIVES THEM OF THEIR PREROGATIVES TO
REQUIRE CHANGE OF VENUE OF LAWSUITS WHERE NECESSARY, AND TRANSCENDS THE
PROVISIONS OF STATE LAWS GOVERNING THE JURISDICTION OF STATE COURTS." 
H.R. REP. NO. 613, 80TH CONG., 1ST SESS., PT. 2, 1(1947). 

DOUBT WAS EXPRESSED THAT CONGRESS HAD CONSTITUTIONAL POWER SO TO
AFFECT STATE COURTS.  SEE, E.G., LETTER OF ACTING THE ASSISTANT TO THE
ATTORNEY GENERAL, HEARINGS BEFORE SENATE COMMITTEE ON THE JUDICIARY ON
S. 1567 AND H.R. 1639(JENNINGS BILL), 80TH CONG., 2D SESS. 215(1948). 

FN19  FURTHERMORE, PETITIONER'S ARGUMENT SUGGESTS AT MOST THAT SEC.
1404(A) WAS AS "CONTROVERSIAL" AS THE JENNINGS BILL, AS OF JULY, 1947. 
THEREAFTER, HOWEVER, BOTH THE CODE AND THE JENNINGS BILL WERE REFERRED
TO THE SENATE JUDICIARY COMMITTEE, WHICH HELD HEARINGS ON BOTH.  THE
SAME THREE SENATORS COMPOSED THE SUBCOMMITTEE HOLDING THESE HEARINGS:
SEN. E. H. MOORE, CHAIRMAN AT THE HEARINGS ON THE JENNINGS BILL IN
JANUARY, 1948; SEN. DONNELL, CHAIRMAN AT THE HEARINGS ON THE CODE IN
APRIL AND JUNE, 1948; AND SEN. MCGRATH.  THE RELATIONSHIP BETWEEN THE
TWO PROPOSALS WAS EXPRESSLY CALLED TO THEIR ATTENTION.  SEE HEARINGS
BEFORE SENATE COMMITTEE ON THE JUDICIARY ON S. 1567 AND H.R.
1639(JENNINGS BILL), 80TH CONG., 2D SESS. 111-112(1948).  THE COMMITTEE
REPORTED THE CODE FAVORABLY, ALBEIT WITH AMENDMENTS; BUT THE JENNINGS
BILL WAS NOT REPORTED. 

IT IS CLEAR THAT ONLY THE TAX COURT PROVISIONS WERE REGARDED BY THE
SENATE COMMITTEE AS SUFFICIENTLY "CONTROVERSIAL" TO BE DELETED.  SEE S.
REP. NO. 1559, 80TH CONG., 2D SESS. 2(1948); 94 CONG. REC. 7927(1948). 

FN20  JUNE 28, 1943, CONGRESS APPROPRIATED $100,000 "FOR PRELIMINARY
WORK IN CONNECTION WITH THE PREPARATION OF A NEW EDITION OF THE U.S.C.
INCLUDING THE CORRECTION OF ERRORS  ...  " 57 STAT. 230. 

FN21  SEE H.R. REP. NO. 308, 80TH CONG., 1ST SESS. 2-3(1947). 

FN22  "THIS PUBLIC-SPIRITED GROUP (THE ADVISORY COMMITTEE) CONSISTED
OF JUDGE FLOYD E. THOMPSON, FORMER CHIEF JUSTICE OF THE ILLINOIS
SUPREME COURT AND FORMER PRESIDENT OF THE CHICAGO BAR ASSOCIATION; HON.
JUSTIN MILLER, FORMER ASSOCIATE JUSTICE OF THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA; JUDGE JOHN B. SANBORN, JUDGE OF
THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT; HON.
WALTER P. ARMSTRONG, OF THE MEMPHIS BAR AND FORMER PRESIDENT OF THE
AMERICAN BAR ASSOCIATION; AND HON. JOHN DICKINSON, OF THE PHILADELPHIA
BAR, FORMER ASSISTANT ATTORNEY GENERAL OF THE UNITED STATES. 

"THIS ADVISORY COMMITTEE WAS ABLY ASSISTED BY JUDGE JOHN J. PARKER,
SENIOR CIRCUIT JUDGE OF THE UNITED STATES CIRCUIT COURT OF APPEALS FOR
THE FOURTH CIRCUIT, WHO RENDERED VALUABLE SERVICE AS A JUDICIAL
CONSULTANT.  THE COMMITTEE WAS ALSO ASSISTED BY TWO SPECIAL CONSULTANTS
EACH AN EXPERT IN THE FIELD OF FEDERAL PROCEDURE:  JUDGE ALEXANDER
HOLTZOFF, UNITED STATES DISTRICT JUDGE, DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA; AND PROF. JAMES W. MOORE, OF YALE UNIVERSITY."  H.R. REP.
NO. 308, 80TH CONG., 1ST SESS. 3(1947).  SEE ALSO HEARINGS BEFORE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 1600 AND H.R. 2055, 80TH CONG., 1ST
SESS. 7-8, 12-14, 17-18, 24-26(1947). 

FN23  CIRCUIT JUDGE MARIS WAS CHAIRMAN, AND DISTRICT JUDGES GALSTON
AND W. F. SMITH ALSO SERVED ON THE COMMITTEE.  LOC.  CIT. SUPRA, NOTE
22.  SEE 1944 REPORT OF THE JUDICIAL CONFERENCE 24; 1945 ID. 17-18;
1948 ID. 41. 

FN24  H.R. REP. NO. 308, 80TH CONG., 1ST SESS. 4(1947). 

FN25  HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 1600
AND H.R. 2055, 80TH CONG., 1ST SESS. 23(1947). 

FN26  "CONGRESSIONAL GOVERNMENT IS COMMITTEE GOVERNMENT  ...  THE
HOUSE SITS, NOT FOR SERIOUS DISCUSSION, BUT TO SANCTION THE CONCLUSIONS
OF ITS COMMITTEES AS RAPIDLY AS POSSIBLE.  IT LEGISLATES IN ITS
COMMITTEE-ROOMS; NOT BY THE DETERMINATIONS OF MAJORITIES, BUT BY THE
RESOLUTIONS OF SPECIALLY-COMMISSIONED MINORITIES; SO THAT IT IS NOT FAR
FROM THE TRUTH TO SAY THAT CONGRESS IN SESSION IS CONGRESS ON PUBLIC
EXHIBITION, WHILST CONGRESS IN ITS COMMITTEE-ROOMS IS CONGRESS AT
WORK."  WOODROW WILSON, CONGRESSIONAL GOVERNMENT, PP. XVI, 79(15TH ED.
1900).  NOR HAS THIS CHANGED.  "THE COMMITTEES ARE THE WORKSHOPS OF
CONGRESS.  COMMITTEE WORK IS THE CORE OF THE LEGISLATIVE PROCESS.  ...
IT IS THE CENTER OF LEGISLATIVE ACTIVITY WHERE THE LAW-MAKING AND
SUPERVISORY FUNCTIONS OF CONGRESS ARE LARGELY PERFORMED."  GALLOWAY,
CONGRESS AT THE CROSSROADS 53(1946).  AND SEE BRYCE, THE AMERICAN
COMMONWEALTH C. XV (NEW ED. 1931); CHAMBERLAIN, LEGISLATIVE PROCESSES,
CC. V-VI (1936); KEFAUVER AND LEVIN, A TWENTIETH-CENTURY CONGRESS 114
153(1947); LUCE, LEGISLATIVE PROCEDURE, CC. IV-VIII (1922); WALKER, THE
LEGISLATIVE PROCESS, C. 11(1948). 

FN27  HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 1600
AND H.R. 2055, 80TH CONG., 1ST SESS. 8(1947). 

FN28  EXPRESSLY RECITING THE REFERENCE TO THE KEPNER CASE IN THE
REVISER'S NOTES:  BRAUCHER, THE INCONVENIENT FEDERAL FORUM, 60 HARV. L.
REV. 908, 933(JULY, 1947); NOTE, NEW LIMITATIONS ON CHOICE OF FEDERAL
FORUM, 15 U. OF CHI.  L. REV. 332, 341, N. 54(WINTER (MARCH), 1948);
COMMENT, FORUM NON CONVENIENS, A NEW FEDERAL DOCTRINE, 56 YALE L.J.
1234, 1249, N. 115(AUG., 1947).  AND SEE BARRETT, THE DOCTRINE OF FORUM
NON CONVENIENS, 35 CALIF. L. REV. 380, 421(SEPT., 1947); NOTE, 32 MINN.
L. REV. 633, 636, N. 29(MAY, 1948).  CF. NOTE, 23 IND. L.J. 82, 87, N.
26(OCT., 1947)(QUOTING SEC. 1404(A) BUT NOT REFERRING TO THE REVISER'S
NOTES). 

OF COURSE THE FACT THAT THE JUDICIAL CODE WAS BEING REVISED WAS
PUBLICIZED IN DISCUSSIONS NOT DIRECTLY BEARING ON THE INSTANT ISSUE;
E.G., WECHSLER, FEDERAL JURISDICTION AND THE REVISION OF THE JUDICIAL
CODE, 13 LAW & CONTEMP.  PROB.  216(1948); ZINN, REVISION OF FEDERAL
JUDICIAL CODE, 48 LAW NOTES, NOS. 3-4, 11(1944)(EARLIEST REFERENCE);
NOTE, THE PROPOSED REVISION OF THE FEDERAL JUDICIAL CODE, 60 HARV. L.
REV. 424(1947). 

FN29  THERE IS NO DOUBT AS TO THE MEANING OF SEC. 1404(A) IN THE MIND
OF THE AUTHOR OF THE MEMORANDUM.  SEE 3 MOORE'S FEDERAL PRACTICE
2141(2D ED. 1948), STATING THAT THE CODE "PROVIDES FOR A TRANSFER  ...
OF ANY ACTION TO A PROPER AND MORE CONVENIENT FORUM" (ITALICS IN
ORIGINAL), WITH A FOOTNOTE (107) CITING SEC. 1404(A) AND DECLARING THAT
"ANY ACTION IN SEC. 1404(A) INCLUDES SUITS SUBJECT TO SPECIAL VENUE
STATUTES, AS SUITS FOR PATENT INFRINGEMENT AND SUITS UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, AS WELL AS ACTIONS SUBJECT TO THE GENERAL
VENUE STATUTE."  AND SEE ARTICLES BY A MEMBER OF THE ADVISORY COMMITTEE
APPOINTED BY THE JUDICIAL CONFERENCE, AND BY THE CHIEF REVISER:
GALSTON, AN INTRODUCTION TO THE NEW FEDERAL JUDICIAL CODE, 8 F.R.D.
201, 206(1948); BARRON, THE JUDICIAL CODE 1948 REVISION, 8 F.R.D. 439,
442(1949). 

FN30  H.R. REP. NO. 2646, 79TH CONG., 2D SESS. (1946). 

FN31  60 STAT. 812, 826-27(1946). 

FN32  HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 1600
AND H.R. 2055, 80TH CONG., 1ST SESS. 29(1947). 

FN33  H.R. REP. NO. 308, 80TH CONG., 1ST SESS. (1947). 

FN34  IBID., 6. 

FN35  93 CONG. REC. 8392(1947). 

FN36  HEARINGS BEFORE SENATE COMMITTEE ON THE JUDICIARY ON H.R. 3214,
80TH CONG., 2D SESS. 73-74(1948). 

FN37  94 CONG. REC. 7927-30, 8297, 8438, 8498-8501(1948). 

WHILE IT LACKS RELEVANCE TO OUR HOLDING AS TO CONGRESSIONAL INTENTION
AND EXPRESSION IN JUNE, 1948, THE PRESENTATION OF AN UP-TO-DATE REPORT
OF CONGRESSIONAL CONSIDERATION OF THE CODE REVISION REQUIRES NOTING
THAT OVER 60 ADDITIONAL AMENDMENTS TO TITLE 28 HAVE ALREADY BECOME
LAW.  ACT OF MAY 24, 1949, 63 STAT. 89, 99-107, SECS. 64A-127.  SEE 95
CONG. REC. 3814-20, 5826-27, 6283-84; H.R. REP. NO. 352, 81ST CONG.,
1ST SESS. 11-20, 38-51(1949); S. REP. NO. 303, 81ST CONG., 1ST SESS.
(1949).  WHILE SEC. 1406 IS AMENDED BY ADDING "SHALL DISMISS, OR IF IT
BE IN THE INTEREST OF JUSTICE" BEFORE "SHALL TRANSFER" (63 STAT. 101,
SEC. 81), NO CHANGE WHATEVER WAS SUGGESTED OR MADE IN SEC. 1404(A). 

FN38  GWIN V. UNITED STATES, 184 U.S. 669(1902); NATIONAL EXCHANGE
BANK OF BALTIMORE V. PETERS, 144 U.S. 570(1892); SHERMAN V. GRINNELL,
123 U.S. 679(1887); MCBURNEY V. CARSON, 99 U.S. 567, 569(1878). 

FN39  EX PARTE MARS, INC., 320 U.S. 710(1943); ROCHE V. EVAPORATED
MILK ASSN., 319 U.S. 21(1943), AND CASES THERE CITED.  CF. UNITED
STATES ALKALI EXPORT ASSN. V. UNITED STATES, 325 U.S. 196(1945), AND
CASES THERE CITED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT FOR THE REASONS
STATED IN THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN UNITED
STATES V. NATIONAL CITY LINES, POST, P. 84. 

MR. JUSTICE RUTLEDGE* . 

*(THIS IS ALSO A CONCURRENCE IN THE RESULT IN NO. 233, MISC.,
KILPATRICK V. TEXAS & P.R. CO., POST, P. 75, AND NO. 269, MISC., UNITED
STATES V. NATIONAL CITY LINES, POST, P. 78.) 

I CONCUR IN THE RESULT.  BUT IN DOING SO I FEEL IMPELLED TO SAY TWO
THINGS. 

ONE IS THAT IN MY VIEW SEC. 1404(A), TAKEN BROADLY TO INCLUDE "ANY
CIVIL ACTION," DOES EFFECT A PARTIAL REPEAL OF SEC. 6 OF THE FEDERAL
EMPLOYERS' LIABILITY ACT AND OF THE OTHER STATUTES MENTIONED BY MR.
JUSTICE DOUGLAS, INCLUDING THE VENUE PROVISIONS (SEC. 12) OF THE
CLAYTON ACT INVOLVED IN OUR DECISION IN UNITED STATES V. NATIONAL CITY
LINES, 334 U.S. 573. 

THE LEGISLATIVE HISTORY, FOR EXAMPLE, OF THE CLAYTON ACT VENUE
PROVISIONS DEMONSTRATES THAT THE CHANGE SEC. 1404(A) IS SAID TO HAVE
MADE WAS MORE THAN THE MERE REMOVAL OF A JUDICIAL GLOSS.  I THINK WE
SHOULD NOT NOW IMPUGN THE VALIDITY OF OUR DECISIONS IN NATIONAL CITY
LINES, SUPRA, AND IN KEPNER AND MILES  FN1  BY CHARACTERIZING EACH AS A
MERE "JUDICIAL GLOSS" UPON THE PERTINENT STATUTE.  THOSE DECISIONS IN
MY OPINION WERE TRUE REFLECTIONS OF CONGRESSIONAL INTENT AS STATED IN
THE RESPECTIVE STATUTES AND, ACCORDINGLY, THE CHANGES MADE IN THEM BY
SEC. 1404(A) WERE IN THE NATURE OF REPEALS, TO THE EXTENT THAT THE
PLAINTIFFS WERE DEPRIVED OF THEIR RIGHTS UNDER THE PRE-EXISTING
STATUTES TO HAVE THEIR CAUSES OF ACTION TRIED IN THE FORUMS WHERE THEY
WERE PROPERLY BROUGHT. 

IN THE SECOND PLACE, THOSE CHANGES, ALTHOUGH ENTIRELY WITHIN
CONGRESS' POWER TO MAKE, WERE NEITHER INSUBSTANTIAL NOR
NONCONTROVERSIAL, IN VIEW OF THE LEGISLATIVE HISTORY OF THE ORIGINAL
PROVISIONS, FOR EXAMPLE, THE VENUE PROVISIONS OF THE CLAYTON ACT.  NOR
DO I THINK THE LEGISLATIVE HISTORY OF SEC. 1404(A) DEMONSTRATES EITHER
THE INSUBSTANTIAL OR THE NONCONTROVERSIAL NATURE OF THE CHANGES IN SEC.
1404(A), ALTHOUGH THEY SEEM TO HAVE BEEN SO TREATED BY THOSE IN CHARGE
OF THE BILL.  FN2  IT IS TO BE NOTED, MOREOVER, THAT SPECIFIC ATTENTION
WAS DRAWN TO THE EFFECT OF SEC. 1404(A) UPON SEC. 6 OF THE EMPLOYERS'
LIABILITY ACT THROUGH REFERENCE TO THE KEPNER AND MILES DECISIONS, BUT
NO LIKE SPECIFIC REFERENCE WAS MADE TO THE VENUE PROVISIONS OF THE
CLAYTON ACT AND THE NATIONAL CITY LINES DECISION. 

THESE MATTERS MAKE IT IMPOSSIBLE FOR ME TO CONCUR IN THE VIEW THAT
CONGRESS WAS IN FACT "FULLY INFORMED AS TO THE SIGNIFICANCE OF SEC.
1404(A)."  THIS, HOWEVER, IS A MATTER AFFECTING CONGRESSIONAL PROCEDURE
AND THE MANNER OF CONDUCTING LEGISLATIVE BUSINESS.  ACCORDINGLY,
NOTWITHSTANDING MY DOUBTS THAT CONGRESS INTENDED TO GO SO FAR, I
ACQUIESCE IN THE COURT'S DECISIONS. 

FN1  BALTIMORE & OHIO R. CO. V. KEPNER, 314 U.S. 44; MILES V.
ILLINOIS CENTRAL R. CO., 315 U.S. 698. 

FN2  "AT THE SAME TIME GREAT CARE HAS BEEN EXERCISED TO MAKE NO
CHANGES IN THE EXISTING LAW WHICH WOULD NOT MEET WITH SUBSTANTIALLY
UNANIMOUS APPROVAL."  S. REP. NO. 1559, 80TH CONG., 2D SESS. 2.  "  ...
I MAY SAY THAT THE PURPOSE OF THIS BILL IS PRIMARILY TO REVISE AND
CODIFY AND TO ENACT INTO POSITIVE LAW, WITH SUCH CORRECTIONS AS WERE
DEEMED BY THE (SENATE JUDICIARY) COMMITTEE TO BE OF SUBSTANTIAL AND
NONCONTROVERSIAL NATURE."  94 CONG. REC. 7928.  FOR SIMILAR EXPRESSIONS
BY MEMBERS OF THE HOUSE OF REPRESENTATIVES, SEE HEARINGS BEFORE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 1600 AND H.R. 2055, 80TH CONG., 1ST
SESS. 6, 11.  A MEMBER OF THE HOUSE JUDICIARY COMMITTEE TOLD THE HOUSE
THAT THE ONLY "CONTROVERSIAL ASPECTS" OF THE 1947 DRAFT OF THE CODE
WERE CERTAIN SUBSEQUENTLY DELETED PROVISIONS CONCERNING THE TAX COURT. 
93 CONG. REC. 8390.  BUT CF. THE LEGISLATIVE HISTORY OF THE
CONTEMPORANEOUSLY PENDING JENNINGS BILL, CITATIONS TO WHICH ARE MADE IN
THE COURT'S OPINION. 
..END :








KILPATRICK V. TEXAS & PACIFIC R. CO., 337 U.S. 75 


NO. 233, MISC.  ARGUED FEBRUARY 8, 1949.  - DECIDED MAY 31, 1949.  -
MOTION DENIED. 


UNDER 28 U.S.C. SEC. 1404(A), INCORPORATED IN THE REVISION OF THE
JUDICIAL CODE EFFECTIVE SEPTEMBER 1, 1948, THE DOCTRINE OF FORUM NON
CONVENIENS IS MADE APPLICABLE TO ACTIONS UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT.  EX PARTE COLLETT, ANTE, P. 55.  PP. 75-78. 

KILPATRICK V. TEXAS & PACIFIC RAILWAY CO. 

MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS OR
CERTIORARI. 

UNDER 28 U.S.C. SEC. 1404(A), A FEDERAL DISTRICT COURT IN WHICH AN
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT HAD BEEN BROUGHT
TRANSFERRED IT TO A DISTRICT COURT IN ANOTHER DISTRICT.  PETITIONER
MOVED IN THIS COURT FOR LEAVE TO FILE A PETITION FOR A WRIT OF
CERTIORARI OR A WRIT OF MANDAMUS OR ANY APPROPRIATE RELIEF.  THE CASE
WAS ASSIGNED FOR HEARING ON THE MOTION.  335 U.S. 897.  MOTION DENIED,
P. 78. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION HAS A RATHER INVOLVED HISTORY.  IN 1946, WHILE IN THE
EMPLOY OF RESPONDENT RAILROAD, PETITIONER WAS SERIOUSLY INJURED IN AN
ACCIDENT AT BIG SPRING, TEXAS.  PETITIONER PROMPTLY BROUGHT SUIT UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT  FN1  IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.  THAT COURT
DISMISSED THE ACTION ON THE GROUND THAT THE RAILROAD COULD NOT PROPERLY
BE SERVED IN THAT DISTRICT.  72 F.SUPP.  635(1947).  PETITIONER
APPEALED FROM THIS DISMISSAL; AND, SOME DAYS AFTER TAKING THE APPEAL,
INSTITUTED AN ACTION IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS.  AN ANSWER WAS FILED IN THE LATTER ACTION AND A NUMBER OF
DEPOSITIONS WERE TAKEN. 

IN MARCH, 1948, THE COURT OF APPEALS FOR THE SECOND CIRCUIT HELD THAT
THE RAILROAD WAS SUBJECT TO SERVICE IN NEW YORK.  166 F.2D 788. 
THEREUPON PETITIONER MOVED TO DISMISS HIS TEXAS ACTION.  WHEN THE
DISTRICT COURT REFUSED TO DISMISS, PETITIONER APPEALED AND ALSO APPLIED
FOR A WRIT OF PROHIBITION TO THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT.  THAT COURT DECLINED TO ISSUE THE WRIT.  167 F.2D 471(1948). 
IN NO. 275, PETITIONER REQUESTS THIS COURT TO ISSUE A WRIT OF
CERTIORARI TO REVIEW THE COURT OF APPEALS ACTION.  AND IN NO. 119
MISC., WE ARE ASKED TO ISSUE A WRIT OF PROHIBITION DIRECTING THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS NOT TO PROCEED WITH
THE TRIAL.  WE ARE ADVISED THAT COUNSEL HAVE ARRANGED THAT FURTHER
PROGRESS OF THE TEXAS TRIAL SHALL BE HELD IN ABEYANCE PENDING OUR
DECISION.  WE ARE THIS DAY DENYING THOSE PETITIONS.  SEE POST, P. 912. 

WHEN THE NEW YORK CAUSE WAS RETURNED TO THE DISTRICT COURT, AFTER WE
HAD DENIED THE RAILROAD'S PETITION FOR CERTIORARI TO REVIEW THE COURT
OF APPEALS' DETERMINATION THAT IT MIGHT BE SUED THERE, 335 U.S.
814(1948), PETITIONER MOVED FOR A PREFERENCE IN THE ORDER OF TRIAL. 
THE COURT BELOW, THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, DENIED THIS MOTION.  RESPONDENT FILED A CROSS
MOTION FOR AN ORDER TRANSFERRING THE ACTION TO THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS.  THIS MOTION WAS
GRANTED.  THE ORDER OF TRANSFER RELIES ON THE AUTHORITY OF 28 U.S.C.
SEC. 1404(A),  FN2  AND CITES HAYES V. CHICAGO, R.I. & P.R. CO., 79
F.SUPP.  821(1948), AND NUNN V. CHICAGO, M., ST. P. & P.R. CO., 80
F.SUPP.  745(1948).  TO NULLIFY THIS ORDER, PETITIONER MOVED THIS COURT
FOR LEAVE TO FILE A PETITION FOR A WRIT OF CERTIORARI OR A WRIT OF
MANDAMUS OR ANY APPROPRIATE RELIEF.  WE ASSIGNED THE CASE FOR HEARING
ON THE MOTION FOR LEAVE TO FILE.  335 U.S. 897(1948). 

IN SUPPORT OF HIS MOTION, PETITIONER URGES THAT THE GENERAL PURPOSES
OF THE 1948 REVISION OF TITLE 28 BY THE CONGRESS INDICATE NO INTENTION
TO "EMASCULATE" THE RIGHT TO CHOOSE VENUE AFFORDED UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT; THAT "ANY CIVIL ACTION," AS USED IN SEC.
1404(A) OF THE CODE, REFERS ONLY TO CIVIL ACTIONS SPECIFIED IN THE
VENUE CHAPTER OF TITLE 28(SECS.  1391-1406, INCLUSIVE); AND THAT THE
COURT BELOW "IGNORED THE KNOWN TEMPER OF LEGISLATIVE OPINION" AS
REVEALED CHIEFLY BY CONGRESSIONAL ACTION ON THE JENNINGS BILL. 

WE FAIL TO SEE ANYTHING IN THESE CONTENTIONS WHICH CAN DISTINGUISH
THIS CASE FROM EX PARTE COLLETT, DECIDED THIS DAY, ANTE, P. 55.  IN
THAT OPINION WE HAVE DEMONSTRATED THAT THE VENUE PROVISIONS OF SEC. 6
OF THE FEDERAL EMPLOYERS' LIABILITY ACT ARE ONE THING AND THE TRANSFER
PROVISIONS OF SEC. 1404(A) OF THE PRESENT JUDICIAL CODE ANOTHER; THAT
"ANY CIVIL ACTION" MEANS WHAT IT SAYS; AND THAT CONGRESS WAS FULLY
INFORMED AS TO THE SIGNIFICANCE OF SEC. 1404(A).  FOR THESE REASONS, WE
CONCLUDE THAT THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
ACTED WITHIN ITS STATUTORY AUTHORITY.  THE MOTION MUST BE DENIED. 

FN1  35 STAT. 65, AS AMENDED BY 36 STAT. 291, AND 53 STAT. 1404, 45
U.S.C. SECS. 51-59. 

FN2 "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."  THIS PROVISION
BECAME EFFECTIVE SEPT. 1, 1948.  ACT OF JUNE 25, 1948, 62 STAT. 869,
992, SEC. 38. 

(FOR OPINION OF MR. JUSTICE RUTLEDGE CONCURRING IN THE RESULT, SEE
ANTE, P. 72.) 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT FOR THE REASONS
STATED IN THE DISSENTING OPINION OF MR. JUSTICE DOUGLAS IN UNITED
STATES V. NATIONAL CITY LINES, POST, P. 84. 
..END :
















UNITED STATES V. NAT. CITY LINES, 337 U.S. 78 


NO. 269, MISC.  ARGUED FEBRUARY 8, 1949.  - DECIDED MAY 31, 1949.  -
MOTION DENIED. 


UNDER 28 U.S.C. SEC. 1404(A), INCORPORATED IN THE REVISION OF THE
JUDICIAL CODE EFFECTIVE SEPTEMBER 1, 1948, THE DOCTRINE OF FORUM NON
CONVENIENS IS MADE APPLICABLE TO CIVIL SUITS BY THE GOVERNMENT AGAINST
CORPORATIONS UNDER THE ANTITRUST LAWS.  EX PARTE COLLETT, ANTE, P. 55;
KILPATRICK V. TEXAS & PACIFIC R. CO., ANTE, P. 75.  PP. 79-84. 

UNITED STATES V. NATIONAL CITY LINES, INC. ET AL. 

MOTION FOR LEAVE TO FILE PETITION FOR CERTIORARI. 

UNDER 28 U.S.C. SEC. 1404(A), A FEDERAL DISTRICT COURT IN WHICH THE
GOVERNMENT HAD INSTITUTED A CIVIL SUIT AGAINST CERTAIN CORPORATIONS
UNDER THE SHERMAN ACT TRANSFERRED IT TO A DISTRICT COURT IN ANOTHER
DISTRICT.  80 F.SUPP.  734.  THE GOVERNMENT MOVED IN THIS COURT FOR
LEAVE TO FILE A PETITION FOR WRIT OF CERTIORARI.  THE CASE WAS ASSIGNED
FOR HEARING ON THE MOTION.  335 U.S. 897.  MOTION DENIED, P. 84. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS WHETHER THE 1948 REVISION OF THE JUDICIAL CODE
(TITLE 28, UNITED STATES CODE) EXTENDS THE DOCTRINE OF FORUM NON
CONVENIENS TO ANTITRUST SUITS.  THE GOVERNMENT'S COMPLAINT IN THIS
CIVIL SUIT ALLEGED THAT RESPONDENT CORPORATIONS HAVE CONSPIRED TO
OBTAIN CONTROL OF LOCAL TRANSPORTATION COMPANIES IN AT LEAST 44 CITIES
IN 16 STATES IN DIFFERENT SECTIONS OF THE COUNTRY, IN ORDER TO RESTRAIN
AND MONOPOLIZE INTERSTATE COMMERCE IN BUSSES AND THE PETROLEUM AND
OTHER SUPPLIES INCIDENT THERETO, IN VIOLATION OF SECS. 1 AND 2 OF THE
SHERMAN ACT, 26 STAT. 209, 15 U.S.C. SECS. 1, 2. 

THIS IS THE SECOND TIME THAT AN ORDER OF THE COURT BELOW, THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA,
ATTEMPTING TO EFFECTUATE A TRANSFER OF THE CASE FROM LOS ANGELES TO
CHICAGO, HAS BEEN BEFORE THIS COURT.  WHEN RESPONDENTS' MOTION WAS
FIRST GRANTED, THE DISTRICT COURT DISMISSED THE ACTION, 7 F.R.D.
456(1947), INASMUCH AS THE FEDERAL COURTS THEN LACKED STATUTORY POWER
TO TRANSFER CASES.  WE REVERSED, HOLDING THAT FORUM NON CONVENIENS WAS
NOT APPLICABLE IN ANTITRUST SUITS.  UNITED STATES V. NATIONAL CITY
LINES, 334 U.S. 573(JUNE 7, 1948).  AFTER SEPTEMBER 1, 1948, THE
EFFECTIVE DATE OF THE PRESENT JUDICIAL CODE,  FN1  RESPONDENTS FILED A
NEW MOTION UNDER THE DOCTRINE OF FORUM NON CONVENIENS, CITING SEC.
1404(A), WHICH READS AS FOLLOWS:  "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."  AGAIN THE DISTRICT COURT BELOW GRANTED THE MOTION.  IT
ORDERED THE CASE TRANSFERRED.  80 F.SUPP.  734(1948).  THE GOVERNMENT
THEREUPON SUBMITTED IN THIS COURT A MOTION FOR LEAVE TO FILE PETITION
FOR WRIT OF CERTIORARI.  WE ASSIGNED THE CASE FOR HEARING ON THIS
MOTION.  335 U.S. 897(1948). 

IN TAKING THE POSITION THAT THE DISTRICT COURT LACKED AUTHORITY TO
ENTER ITS ORDER OF TRANSFER, THE GOVERNMENT HAS ADVANCED MANY OF THE
ARGUMENTS WHICH WE HAVE ALREADY CONSIDERED TODAY - AND REJECTED - IN EX
PARTE COLLETT, ANTE, P. 55, AND KILPATRICK V. TEXAS & PACIFIC R. CO.,
ANTE, P. 75, IN WHICH WE HELD THAT ACTIONS UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT WERE NOW SUBJECT TO THE DOCTRINE OF FORUM NON
CONVENIENS.  THE GOVERNMENT CONTENDS, FOR EXAMPLE, THAT CONGRESS
INTENDED SEC. 1404(A) TO APPLY ONLY TO ACTIONS THE VENUE PROVISIONS OF
WHICH WERE FORMERLY CONTAINED IN TITLE 28, RATHER THAN TO "ANY CIVIL
ACTION" (THE VENUE REQUIREMENTS IN ANTITRUST CASES ARE DEFINED IN 15
U.S.C. SEC. 22; IN LIABILITY ACT CASES, 45 U.S.C. SEC. 56); AND THAT
THE LEGISLATIVE HISTORY ESTABLISHES VERY CLEARLY THAT CONGRESS HAD NO
DESIRE SUBSTANTIALLY TO CHANGE THE LAW - INDEED, THE GOVERNMENT URGES
US TO DISREGARD THE REVISER'S NOTES WHICH WERE PRINTED IN THE HOUSE
REPORTS.  FN2  WE CANNOT ACCEPT THIS POSITION FOR THE REASONS DISCUSSED
IN OUR PREVIOUS DECISIONS TODAY.  THE REVISER'S NOTES ARE SO OBVIOUSLY
AUTHORITATIVE IN PERCEIVING THE MEANING OF THE CODE THAT THE GOVERNMENT
ITSELF, IN DISCUSSING A SECTION OTHER THAN SEC. 1404(A), REFERS TO THEM
IN ITS BRIEF IN THIS CASE.  AND WE HAVE ALREADY HAD OCCASION TO LOOK TO
THE REVISER'S NOTES.  STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368,
376, N. 12(1949). 

IT IS TRUE THAT THE REVISER'S NOTES TO SEC. 1404(A), ALTHOUGH CITING
A FEDERAL EMPLOYERS' LIABILITY ACT DECISION, MAKE NO REFERENCE TO THE
ANTITRUST LAWS OR TO OUR PREVIOUS DECISION IN THIS LITIGATION.  THE
GOVERNMENT THEREFORE URGES THAT OUR DISPOSITION OF THE LIABILITY ACT
CASES IS NOT CONCLUSIVE.  WE DISAGREE.  THE NOTES CITE THE LIABILITY
ACT DECISION "AS AN EXAMPLE OF THE NEED OF SUCH A PROVISION." 
OBVIOUSLY, AN EXAMPLE IS NOT A COMPLETE CATALOGUE.  THE USE OF AN
EXAMPLE IMPLIES NO PURPOSE TO RESTRICT THE MEANING OF THE STATUTORY
PHRASE "ANY CIVIL ACTION" PRECISELY TO THE ILLUSTRATION SELECTED. 
QUITE THE CONTRARY, THE PARTICULAR EXAMPLE NOTED DEMONSTRATES THAT
CONGRESS INTENDED TO EFFECTUATE CHANGES IN THE LAW, IN ORDER TO EXPAND
THE TRANSFERABILITY OF CASES.  AND THE CHANGE IN ANTITRUST PRACTICE
SEEMS NO MORE RADICAL THAN THE CHANGE IN FEDERAL EMPLOYERS' LIABILITY
ACT PRACTICE:  BALTIMORE & O.R. CO. V. KEPNER, 314 U.S. 44(1941), CITED
IN THE REVISER'S NOTE, WAS DECIDED OVER SIX YEARS BEFORE OUR INITIAL
DECISION IN THIS CASE, 334 U.S. 573(1948), WHICH WAS THE FIRST RULING
BY THIS COURT THAT FORUM NON CONVENIENS WAS INAPPLICABLE IN ANTITRUST
SUITS. 

ALTHOUGH NO EXPLANATION IS NEEDED FOR THE LACK OF CONGRESSIONAL
REFERENCE TO OUR FORMER DECISION, SIMPLE CHRONOLOGY MAY BE CONSULTED. 
THE REVISER'S NOTES APPEARED IN HOUSE REPORT NO. 308, 80TH CONGRESS,
1ST SESS., WHICH WAS PUBLISHED IN APRIL, 1947.  THE CODE REVISION WAS
INITIALLY PASSED BY THE HOUSE IN JULY, 1947.  FN3  WITH AMENDMENTS, THE
REVISION WAS PASSED BY THE SENATE ON JUNE 12, 1948,  FN4  AND BY THE
HOUSE ON JUNE 16, 1948.  FN5  OUR DECISION IN THE FIRST NATIONAL CITY
LINES CASE, 334 U.S. 573, WAS HANDED DOWN ON JUNE 7, 1948.  CLEARLY,
THE FAILURE OF CONGRESS EXPRESSLY TO CONSIDER THIS DECISION PROVES
NOTHING. 

NOR WAS THERE ANYTHING IN OUR DECISION WHICH REQUIRED UNIQUE
CONGRESSIONAL DISCUSSION, IN THE FACE OF THE UNMISTAKABLE STATUTORY
LANGUAGE AND REVISER'S NOTES.  WE EXPRESSLY HELD THAT "CONGRESS'
MANDATE REGARDING VENUE AND THE EXERCISE OF JURISDICTION IS BINDING
UPON THE FEDERAL COURTS," 334 U.S. AT 588-89, AND THAT DECISION IN THIS
FIELD MUST REST ON "THE LEGISLATIVE PURPOSE AND THE EFFECT OF THE
LANGUAGE USED  ...  ," SUPRA, AT 597.  NOTHING IN OUR PREVIOUS OPINION
INTIMATES THAT WE COULD FAIL TO RESPECT WHATEVER MODIFICATION OF THE
LAW CONGRESS MIGHT ENACT. 

MOREOVER, THIS CHANGE IN THE LAW MUST HAVE BEEN KNOWN TO THE
GOVERNMENT IN TIME FOR IT TO HAVE ADDRESSED THE PROTESTS WHICH WE HAVE
HEARD TO THE CONGRESS.  THIS WAS ADMITTED ON THE ORAL ARGUMENT; IT
COULD NOT POSSIBLY HAVE BEEN DENIED.  WHEN THIS LITIGATION WAS
PREVIOUSLY BEFORE US, NATIONAL CITY'S BRIEF, AT PP. 25-26 AND 45,
EXPRESSLY CALLED ATTENTION TO THE IMMINENT PROBABILITY THAT SEC.
1404(A) WOULD BE ENACTED AND WOULD BE HELD APPLICABLE TO ANTITRUST
SUITS.  THIS BRIEF WAS FILED HERE ON APRIL 26, 1948.  NOT UNTIL JUNE 7,
1948, WAS THE FINAL HEARING ON THE JUDICIAL CODE REVISION HELD BEFORE
THE SENATE JUDICIARY SUBCOMMITTEE.  FURTHERMORE, THE CODE PROPOSALS
WERE EXTENSIVELY PUBLICIZED.  SEE EX PARTE COLLETT, ANTE, AT PP. 67
68.  THE DEPARTMENT OF JUSTICE IN PARTICULAR WAS INFORMED:  EACH UNITED
STATES ATTORNEY RECEIVED A COPY OF THE DRAFTS; FN6  A DEPARTMENT
SPOKESMAN TESTIFIED AT THE HOUSE HEARING; FN7  THE ATTORNEY GENERAL WAS
ASKED FOR AN OPINION BY THE CONGRESSIONAL COMMITTEE N8.  THE PLAIN
INFERENCE IS EITHER THAT THE GOVERNMENT TOOK NO ACTION WITH RESPECT TO
THE FORTHCOMING ALTERATION OF THE RULE THAT FORUM NON CONVENIENS WAS
INAPPLICABLE TO ANTITRUST SUITS, OR THAT A PROTEST WAS MADE WHICH
CONGRESS DISREGARDED.  NEITHER ALTERNATIVE WOULD OFFER THE SLIGHTEST
JUSTIFICATION FOR OVERRIDING THE UNEQUIVOCAL WORDS OF SEC. 1404(A) AND
THE LEGISLATIVE HISTORY WHICH ESTABLISHES THAT CONGRESS INDEED MEANT
WHAT IT SAID. 

FOR THESE REASONS, WE CAN FIND NO DISTINCTION BETWEEN THIS CASE AND
THE OTHERS DECIDED TODAY.  WE HOLD THAT SEC. 1404(A) IS APPLICABLE
HERE.  THE MOTION IS DENIED. 

FN1  ACT OF JUNE 25, 1948, 62 STAT. 869, 992, SEC. 38. 

THERE HAS BEEN APPARENTLY BUT ONE OTHER REPORTED CASE DEALING WITH
THE INSTANT ISSUE.  IT IS IN ACCORD WITH THE HOLDING BELOW.  UNITED
STATES V. E.I. DU PONT DE NEMOURS & CO., 83 F.SUPP.  233(1949). 

SEE, GENERALLY, NOTE, VENUE IN ANTITRUST CASES:  APPLICABILITY OF THE
NEW DISCRETIONARY TRANSFER PROVISION, 58 YALE L.J. 482(1949). 

FN2  THE NOTE TO SEC. 1404(A) APPEARS AT H.R. REP. NO. 308, 80TH
CONG., 1ST SESS. A132(1947) AND H.R. REP. NO. 2646, 79TH CONG., 2D
SESS. A127(1946).  IT READS AS FOLLOWS:  "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, 62 S. CT. 6, 314 U.S. 44, 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." 

FN3  93 CONG. REC. 8392(1947). 

FN4  94 CONG. REC. 7930(1948). 

FN5 94 CONG. REC. 8501(1948). 

FN6  HEARINGS BEFORE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 1600
AND H.R. 2055, 80TH CONG., 1ST SESS. 8(1947). 

FN7  STATEMENT OF SPECIAL ASSISTANT TO THE ATTORNEY GENERAL BAYNTON,
IBID., 33-34.  "WITH RESPECT TO THE BILL TO CODIFY TITLE 28, THE
DEPARTMENT HAS BEEN GATHERING MEMORANDA FROM ALL ITS VARIOUS DIVISIONS
AND FROM UNITED STATES ATTORNEYS WITH THE HOPE OF MAKING A
COMPREHENSIBLE REPORT ON THAT BILL.  WE HAVE THAT MATERIAL."  ID., 34. 

FN8  LETTER FROM ATTORNEY GENERAL TOM C. CLARK TO CONGRESSMAN
MICHENER, CHAIRMAN OF THE COMMITTEE ON THE JUDICIARY, APRIL 17, 1947,
H.R. REP. NO. 308, 80TH CONG., 1ST SESS. 8(1947).  THE LETTER DECLARES
THAT THE OBJECTIVES OF THE REVISION ARE "COMMENDABLE AND DESIRABLE,"
AND CONTINUES AS FOLLOWS:  "YOU WILL REMEMBER THE DISCUSSIONS BETWEEN
MEMBERS OF THE STAFF OF THE COMMITTEE AND OF THE DEPARTMENT LAST MONTH
AT WHICH THE DEPARTMENT MADE SOME SUGGESTIONS WITH REFERENCE TO MINOR
CORRECTIONS OF ERRORS AND OMISSIONS THEN IN THE DRAFT OF THE BILL BEING
CONSIDERED BY YOUR COMMITTEE. 

"I AM ADVISED THAT THIS CONFERENCE AGREED UPON A NUMBER OF
CORRECTIONS AND CHANGES AND THAT THESE CORRECTIONS AND CHANGES HAVE NOW
BEEN INCORPORATED IN THE BILL WITH THE ONE EXCEPTION OF THE (TAX COURT)
PORTION  ...  "  SEE 93 CONG. REC. 8385(1947). 

(FOR OPINION OF MR. JUSTICE RUTLEDGE CONCURRING IN THE RESULT, SEE
ANTE, P. 72.) 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THERE ARE DIFFICULTIES FOR ME HOWEVER THE CASE IS DECIDED.  BUT I
HAVE CONCLUDED THAT THE FAIRER RESULT IS REACHED IF THE AMBIGUITIES AND
DOUBTS, FULLY CANVASSED AND DISCLOSED IN THE COURT'S OPINIONS IN THIS
CASE AND IN EX PARTE COLLETT, ANTE, P. 55, DECIDED THIS DAY, ARE
RESOLVED BY READING SEC. 1404(A) AS MAKING THE DOCTRINE OF FORUM NON
CONVENIENS APPLICABLE TO ANY CIVIL ACTION AS TO WHICH THE VENUE
PROVISIONS ARE CODIFIED IN REVISED TITLE 28.  THAT GIVES FULL EFFECT TO
THE WORDS "ANY CIVIL ACTION" IN THE FIELD IN WHICH CONGRESS WAS
LEGISLATING.  AND IT AUTHORIZES, AS RESPECTS THAT GROUP OF CASES, A
TRANSFER TO ANOTHER DISTRICT IN LIEU OF OUTRIGHT DISMISSAL AS HAD
PREVIOUSLY OBTAINED.  THAT CONSTRUCTION SAVES SEC. 1404(A), THE VENUE
PROVISIONS OF THE CLAYTON ACT AND OUR DECISION IN UNITED STATES V.
NATIONAL CITY LINES, INC., 334 U.S. 573, FROM MUTILATION.  I AM
RELUCTANT TO CONCLUDE THAT CONGRESS TOOK THE MORE DRASTIC COURSE IN A
MERE REVISION OF THE CODE.  SO TO HOLD WOULD MAKE A BASIC CHANGE NOT
ONLY IN THE TWO STATUTES INVOLVED IN THESE CASES BUT IN THE SHERMAN
ACT, 15 U.S.C. SECS. 4, 5; THE JONES ACT, 46 U.S.C. SEC. 688; THE SUITS
IN ADMIRALTY ACT, 46 U.S.C. SEC. 782; MERCHANT MARINE ACT OF 1936, 46
U.S.C. SEC. 1128D; THE SECURITIES ACT, 15 U.S.C. SECS. 77A, 77V; THE
SECURITIES EXCHANGE ACT, 15 U.S.C. SECS. 78A, 78AA; THE PUBLIC UTILITY
HOLDING COMPANY ACT, 15 U.S.C. SECS. 79, 79Y; THE INVESTMENT COMPANY
ACT, 15 U.S.C. SECS. 80A-1, 80A-43; AND PERHAPS IN OTHER STATUTES TOO. 

..END :



HYNES V. GRIMES PACKING CO., 337 U.S. 86 


NO. 24.  ARGUED OCTOBER 21, 1948.  - DECIDED MAY 31, 1949.  - 165 F.2D
323, DECREE VACATED AND CASE REMANDED. 


UNDER SEC. 2 OF THE ACT OF MAY 1, 1936, THE SECRETARY OF THE INTERIOR
ISSUED PUBLIC LAND ORDER NO. 128, DESIGNATING AS AN INDIAN RESERVATION,
FOR THE USE AND BENEFIT OF THE NATIVE INHABITANTS OF KARLUK, ALASKA,
CERTAIN DESCRIBED LANDS AND THE WATERS ADJACENT THERETO EXTENDING
"3,000 FEET FROM THE SHORE LINE AT MEAN LOW TIDE."  CLAIMING AUTHORITY
UNDER THE WHITE ACT, 43 STAT. 464, WHICH PRESCRIBED DRASTIC PENALTIES
FOR VIOLATIONS, THE SECRETARY PROMULGATED A REGULATION PROHIBITING
COMMERCIAL FISHING IN THE WATERS OF THE RESERVATION EXCEPT BY NATIVES
OR THEIR LICENSEES.  COMPANIES WHICH FOR YEARS HAD ENGAGED IN CANNING
FISH TAKEN FROM THESE WATERS, WHICH DEPENDED ON THAT SOURCE OF SUPPLY
FOR PROFITABLE OPERATIONS, AND WHICH HAD A SUBSTANTIAL INVESTMENT IN
THEIR BUSINESS, SUED IN THE DISTRICT COURT TO ENJOIN PERMANENTLY THE
EXCLUSION OF THEIR FISHERMEN FROM THE RESERVATION, ON THE GROUND OF THE
INVALIDITY OF THE LAND ORDER AND THE REGULATION.  NAMED AS SOLE
DEFENDANT WAS THE REGIONAL DIRECTOR FOR THE TERRITORY OF ALASKA OF THE
FISH AND WILDLIFE SERVICE OF THE DEPARTMENT OF THE INTERIOR.  HELD: 

1.  THE SECRETARY OF THE INTERIOR IS NOT AN INDISPENSABLE PARTY
DEFENDANT TO THE SUIT, SINCE A DECREE REQUIRING THE DEFENDANT AND HIS
SUBORDINATES TO CEASE THEIR INTERFERENCE WILL AFFORD ALL THE RELIEF
SOUGHT WITHOUT THE NECESSITY OF REQUIRING THE SECRETARY OR ANY OF HIS
SUBORDINATES TO TAKE ANY AFFIRMATIVE ACTION.  PP. 96-97. 

2.  THE DISTRICT COURT HAD EQUITY JURISDICTION OF THE SUIT.  PP. 97
100. 

(A)  THE FACTS SUFFICIENTLY SHOW THAT THE COMPLAINANTS ARE WITHOUT AN
ADEQUATE REMEDY AT LAW AND WILL SUFFER IRREPARABLE INJURY UNLESS THE
ENFORCEMENT OF THE REGULATION IS RESTRAINED.  PP. 97-100. 

(B)  ALTHOUGH CRIMINAL PROSECUTIONS, EVEN UNDER AN INVALID STATUTE,
WILL ORDINARILY NOT BE RESTRAINED, A CIVIL ACTION WILL LIE IN
EXCEPTIONAL CIRCUMSTANCES THAT MAKE AN INJUNCTION NECESSARY EFFECTUALLY
TO PROTECT PROPERTY RIGHTS.  PP. 98-99. 

3.  THE SECRETARY'S INCLUSION IN THE KARLUK RESERVATION OF THE WATERS
DESCRIBED IN THE LAND ORDER WAS AUTHORIZED BY SEC. 2 OF THE ACT MAY 1,
1936.  PP. 100-116. 

(A)  THE PROVISION OF SEC. 2 OF THE ACT OF MAY 1, 1936, AUTHORIZING
THE SECRETARY OF THE INTERIOR TO DESIGNATE AS A RESERVATION ANY "PUBLIC
LANDS WHICH ARE ACTUALLY OCCUPIED" BY INDIANS IN ALASKA, DID NOT
PRECLUDE THE INCLUSION OF COASTAL WATERS IN THE KARLUK RESERVATION. 
PP. 110-116. 

(B)  THE FACT THAT TIDELANDS ARE EMBRACED WITHIN THE AREA DESIGNATED
AS THE KARLUK RESERVATION IS WITHOUT SIGNIFICANCE.  PP. 114-115. 

(C)  A STATUTE WHICH AUTHORIZED PERMANENT DISPOSITION OF FEDERAL
PROPERTY WOULD BE STRICTLY CONSTRUED TO AVOID INCLUSION OF FISHERIES BY
IMPLICATION.  P. 104. 

(D)  THE SECRETARY OF THE INTERIOR WAS WITHOUT STATUTORY AUTHORITY TO
CONVEY TO THE INDIANS ANY PERMANENT TITLE OR RIGHT IN THE LANDS OR
WATERS OF THE KARLUK RESERVATION.  PP. 101-106. 

(E)  INDIAN RESERVATIONS IN ALASKA, ESTABLISHED OR ENLARGED UNDER
SEC. 2 OF THE ACT OF MAY 1, 1936, ARE SUBJECT TO THE UNFETTERED WILL OF
CONGRESS.  P. 106. 

(F)  NON-REVOCABILITY IN THE CASE OF THE KARLUK RESERVATION CAN NOT
BE PREDICATED ON THE LANGUAGE OF THE ACT OF JUNE 18, 1934, WHICH MUST
BE CONSTRUED AS EFFECTIVE ONLY WHERE THERE HAS BEEN SPECIFIC
RECOGNITION BY THE UNITED STATES OF INDIAN RIGHTS TO CONTROL ABSOLUTELY
TRIBAL LANDS.  PP. 106-107. 

(G)  REFERENCES TO GENERAL LEGISLATION ON PUBLIC LANDS IN ALASKA,
APPEARING IN A LETTER OF THE SECRETARY OF THE INTERIOR PRINTED IN THE
HOUSE AND SENATE REPORTS ON THE BILL WHICH BECAME THE ACT OF MAY 1,
1936, CAN NOT BE REGARDED AS AN ADEQUATE BASIS FOR ADJUDGING POWER IN
THE SECRETARY TO DISPOSE FINALLY OF SUCH LANDS.  PP. 108-110. 

4.  THE REGULATION PROHIBITING COMMERCIAL FISHING IN THE WATERS OF
THE KARLUK RESERVATION EXCEPT BY NATIVES OR THEIR LICENSEES WAS VOID AS
A WHOLE, BECAUSE IN VIOLATION OF THE PROVISO OF THE WHITE ACT THAT "NO
EXCLUSIVE OR SEVERAL RIGHT OF FISHERY SHALL BE GRANTED."  PP. 116-123. 

(A)  THE GENERAL PROHIBITION AND THE EXCEPTION IN THE REGULATION ARE
NOT SEPARABLE, AND THE REGULATION MAY NOT BE UPHELD AS IMPOSING A
PROHIBITION APPLICABLE TO EVERYONE.  P. 118. 

(B)  THE WHITE ACT, THE PURPOSE OF WHICH WAS TO PROTECT AND CONSERVE
THE FISHERIES OF ALASKA ON A NON-MONOPOLISTIC BASIS, AUTHORIZES THE
ESTABLISHMENT OF PRESERVES OR CLOSED AREAS IN RESERVATIONS CREATED
UNDER SEC. 2 OF THE ACT OF MAY 1, 1936.  PP. 118-119. 

(C)  SECTION 8 OF THE WHITE ACT DOES NOT MAKE EXCLUSIVE THE POWER OF
THE TERRITORIAL LEGISLATURE TO LICENSE FISHING.  P. 121. 

(D)  LICENSES FOR FISHING MAY BE REQUIRED BY THE SECRETARY OF THE
INTERIOR IN AREAS REGULATED UNDER THE WHITE ACT; BUT SUCH LICENSES MAY
BE ONLY REGULATORY IN CHARACTER AND, WITHIN THE DISCRETION OF THE
SECRETARY, MUST HAVE THEIR COST FIXED SO AS NOT TO EXCEED THE ESTIMATED
COST OF REASONABLE POLICING OF THE AREA.  PP. 121-122. 

(E)  THE WHITE ACT DOES NOT EMPOWER THE SECRETARY OF THE INTERIOR TO
RAISE GENERAL FUNDS FOR NATIVE WELFARE OR GENERAL CONSERVATION PURPOSES
FROM WHITE ACT PRESERVES.  P. 122. 

(F)  THE PROVISO OF SEC. 1 OF THE WHITE ACT "THAT NO EXCLUSIVE OR
SEVERAL RIGHT OF FISHERY SHALL BE GRANTED" APPLIES TO COMMERCIAL
FISHING BY NATIVES AS WELL AS BY FISHING COMPANIES, NONRESIDENTS OF
ALASKA OR OTHER AMERICAN CITIZENS, AND SO APPLIES WHETHER THOSE NATIVES
ARE OR ARE NOT RESIDENTS ON A RESERVATION.  PP. 122-123. 

(G)  THE ADOPTION OF A CORPORATE CHARTER AND A CONSTITUTION BY THE
NATIVE VILLAGE OF KARLUK UNDER SECS. 16 AND 17 OF THE WHEELER-HOWARD
ACT CAN NOT EXPAND THE POWER OF THE SECRETARY OF THE INTERIOR UNDER THE
WHITE ACT.  P. 122. 

(H)  THE SANCTIONS OF THE WHITE ACT MAY NOT BE EMPLOYED TO PROTECT
THE KARLUK RESERVATION AGAINST TRESPASS.  PP. 122-123. 

5.  IN VIEW OF THE FACT THAT THE FOREGOING HOLDINGS ESTABLISH A NEW
BASIS FOR ADMINISTRATIVE AND JUDICIAL CONCLUSIONS, THE DECREES OF THE
DISTRICT COURT AND THE COURT OF APPEALS, GRANTING A PERMANENT
INJUNCTION ON THE GROUND OF THE INVALIDITY OF BOTH THE REGULATION AND
THE LAND ORDER, ARE VACATED AND THE CASE IS REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS AS TO FURTHER PROCEEDINGS.  PP. 123-127. 

HYNES, REGIONAL DIRECTOR, FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE
INTERIOR, V. GRIMES PACKING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

SEVERAL COMPANIES WHICH WERE ENGAGED IN THE CANNING OF FISH IN ALASKA
BROUGHT AN ACTION AGAINST THE REGIONAL DIRECTOR TO ENJOIN THE
ENFORCEMENT OF A FEDERAL REGULATION PROHIBITING COMMERCIAL FISHING IN
THE WATERS OF THE KARLUK RESERVATION.  THE DISTRICT COURT GRANTED A
PERMANENT INJUNCTION.  67 F.SUPP.  43.  THE COURT OF APPEALS AFFIRMED. 
165 F.2D 323.  THIS COURT GRANTED CERTIORARI.  333 U.S. 866.  DECREES
VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS, P. 127. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE SECRETARY OF THE INTERIOR ON MAY 22, 1943, ISSUED PUBLIC LAND
ORDER 128.  IT IS SET OUT IN FULL BELOW.  FN1  IN THIS CASE THE
SIGNIFICANT PART OF NO. 128 IS THAT THE SECRETARY INCLUDED IN THE
RESERVATION, BY PARAGRAPH 2, ADJACENT TIDELANDS AND COASTAL WATERS
ALONG THE ENTIRE SHORE LINE OF THE UPLANDS THAT TOUCHED SHELIKOF STRAIT
BETWEEN KODIAK ISLAND AND THE ALASKA PENINSULA.  THE AUTHORITY OF THE
SECRETARY TO UTILIZE PRESIDENTIAL POWER IN THE DESIGNATION OF THIS
RESERVATION OUT OF PUBLIC LANDS IN ALASKA FLOWS FROM A DELEGATION TO
THE SECRETARY OF PRESIDENTIAL POWER TO WITHDRAW OR RESERVE PUBLIC LANDS
AND REVOKE OR MODIFY PRIOR RESERVATIONS.  EXECUTIVE ORDER NO. 9146, OF
APRIL 24, 1942, 1 C.F.R., CUM. SUPP. 1149.  THE PRESIDENTIAL POWER OVER
RESERVATIONS IS MADE SPECIFIC BY THE ACT OF JUNE 25, 1910.  FN2
ANOTHER STATUTORY PROVISION, HOWEVER, IS THE PRINCIPAL BASIS FOR ORDER
128.  THIS IS SEC. 2 OF THE ACT OF MAY 1, 1936, 49 STAT. 1250.  THIS
ACT WAS PASSED TO EXTEND TO ALASKA THE BENEFITS OF THE WHEELER-HOWARD
ACT OF JUNE 18, 1934, 48 STAT. 984, AND TO PROVIDE FOR THE DESIGNATION
OF INDIAN RESERVATIONS IN ALASKA.  AS SEC. 2 IS IMPORTANT IN OUR
DISCUSSION, THE PERTINENT PROVISIONS ARE SET OUT IN FULL: 

"SEC. 2.  THAT THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO
DESIGNATE AS AN INDIAN RESERVATION ANY AREA OF LAND WHICH HAS BEEN
RESERVED FOR THE USE AND OCCUPANCY OF INDIANS OR ESKIMOS BY SECTION 8
OF THE ACT OF MAY 17, 1884(23 STAT. 26), OR BY SECTION 14 OR SECTION 15
OF THE ACT OF MARCH 3, 1891(26 STAT. 1101), OR WHICH HAS BEEN
HERETOFORE RESERVED UNDER ANY EXECUTIVE ORDER AND PLACED UNDER THE
JURISDICTION OF THE DEPARTMENT OF THE INTERIOR OR ANY BUREAU THEREOF,
TOGETHER WITH ADDITIONAL PUBLIC LANDS ADJACENT THERETO, WITHIN THE
TERRITORY OF ALASKA, OR ANY OTHER PUBLIC LANDS WHICH ARE ACTUALLY
OCCUPIED BY INDIANS OR ESKIMOS WITHIN SAID TERRITORY: PROVIDED, THAT
THE DESIGNATION BY THE SECRETARY OF THE INTERIOR OF ANY SUCH AREA OF
LAND AS A RESERVATION SHALL BE EFFECTIVE ONLY UPON ITS APPROVAL BY THE
VOTE, BY SECRET BALLOT, OF A MAJORITY OF THE INDIAN OR ESKIMO RESIDENTS
THEREOF WHO VOTE AT A SPECIAL ELECTION DULY CALLED BY THE SECRETARY OF
THE INTERIOR UPON THIRTY DAYS' NOTICE:  ...  " 

THE NATIVE VILLAGE OF KARLUK HELD A MEETING ON MAY 23, 1944, AND
ACCEPTED "THE PROPOSED INDIAN RESERVATION FOR THIS VILLAGE.  THE
ADOPTION OF SAID RESERVATION PASSED BY A VOTE OF 46 FOR AND 0 AGAINST. 
11 OF THE ELIGIBLE VOTERS WERE ABSENT."  SEE NOTE 26, INFRA.  UNDER
SEC. 19 OF THE WHEELER-HOWARD ACT THE ALASKAN ABORIGINES ARE CLASSIFIED
AS INDIANS. 

ON MARCH 22 AND AUGUST 27, 1946, THE SECRETARY OF THE INTERIOR
AMENDED THE ALASKA FISHERIES GENERAL REGULATIONS, 50 C.F.R., 1946
SUPP., SEC. 208.23, THAT RELATED TO THE COMMERCIAL FISHING FOR SALMON
IN THE KODIAK AREA FISHERIES BY THE ADDITION OF A SUBSECTION (R),
READING AS FOLLOWS: 

"(R)  ALL WATERS WITHIN 3,000 FEET OF THE SHORES OF KARLUK
RESERVATION (PUBLIC LAND ORDER NO. 128, MAY 22, 1943), BEGINNING AT A
POINT ON THE EAST SHORE OF SHELIKOF STRAIT, ON KODIAK ISLAND, LATITUDE
57 DEGREE 32'30" N., THENCE NORTHEASTERLY ALONG SAID SHORE TO A POINT
57 DEGREE 39'40". 

"THE FOREGOING PROHIBITION SHALL NOT APPLY TO FISHING BY NATIVES IN
POSSESSION OF SAID RESERVATION, NOR TO FISHING BY OTHER PERSONS UNDER
AUTHORITY GRANTED BY SAID NATIVES (49 STAT. 1250; 48 U.S.C. 358A). 
SUCH AUTHORITY SHALL BE GRANTED ONLY BY OR PURSUANT TO ORDINANCE OF THE
NATIVE VILLAGE OF KARLUK, APPROVED BY THE SECRETARY OF THE INTERIOR OR
HIS DULY AUTHORIZED REPRESENTATIVE."  11 FED. REG. 3105, 9528. 

THE AUTHORITY FOR THE REGULATION IS GIVEN AS 34 STAT. 263 AND 478, AS
AMENDED BY THE ACT OF JUNE 6, 1924, 43 STAT. 464, AN ACT FOR THE
PROTECTION OF THE FISHERIES OF ALASKA, KNOWN AS THE WHITE ACT.  FN3  AS
THE CONTROLLING SECTION OF THIS STATUTE ALSO IS IMPORTANT, IT IS SET
OUT HERE,  FN4 44 STAT. 752: 

"SECTION 1.  THAT FOR THE PURPOSE OF PROTECTING AND CONSERVING THE
FISHERIES OF THE UNITED STATES IN ALL WATERS OF ALASKA THE SECRETARY OF
COMMERCE FROM TIME TO TIME MAY SET APART AND RESERVE FISHING AREAS IN
ANY OF THE WATERS OF ALASKA OVER WHICH THE UNITED STATES HAS
JURISDICTION, AND WITHIN SUCH AREAS MAY ESTABLISH CLOSED SEASONS DURING
WHICH FISHING MAY BE LIMITED OR PROHIBITED AS HE MAY PRESCRIBE.  UNDER
THIS AUTHORITY TO LIMIT FISHING IN ANY AREA SO SET APART AND RESERVED
THE SECRETARY MAY (A) FIX THE SIZE AND CHARACTER OF NETS, BOATS, TRAPS,
OR OTHER GEAR AND APPLIANCES TO BE USED THEREIN; (B) LIMIT THE CATCH OF
FISH TO BE TAKEN FROM ANY AREA; (C) MAKE SUCH REGULATIONS AS TO TIME,
MEANS, METHODS, AND EXTENT OF FISHING AS HE MAY DEEM ADVISABLE.  FROM
AND AFTER THE CREATION OF ANY SUCH FISHING AREA AND DURING THE TIME
FISHING IS PROHIBITED THEREIN IT SHALL BE UNLAWFUL TO FISH THEREIN OR
TO OPERATE THEREIN ANY BOAT, SEINE, TRAP, OR OTHER GEAR OR APPARATUS
FOR THE PURPOSE OF TAKING FISH; AND FROM AND AFTER THE CREATION OF ANY
SUCH FISHING AREA IN WHICH LIMITED FISHING IS PERMITTED SUCH FISHING
SHALL BE CARRIED ON ONLY DURING THE TIME, IN THE MANNER, TO THE EXTENT,
AND IN CONFORMITY WITH SUCH RULES AND REGULATIONS AS THE SECRETARY
PRESCRIBES UNDER THE AUTHORITY HEREIN GIVEN:  PROVIDED, THAT EVERY SUCH
REGULATION MADE BY THE SECRETARY OF COMMERCE SHALL BE OF GENERAL
APPLICATION WITHIN THE PARTICULAR AREA TO WHICH IT APPLIES, AND THAT NO
EXCLUSIVE OR SEVERAL RIGHT OF FISHERY SHALL BE GRANTED THEREIN, NOR
SHALL ANY CITIZEN OF THE UNITED STATES BE DENIED THE RIGHT TO TAKE,
PREPARE, CURE, OR PRESERVE FISH OR SHELLFISH IN ANY AREA OF THE WATERS
OF ALASKA WHERE FISHING IS PERMITTED BY THE SECRETARY OF COMMERCE.  ...
"  (SEE FOR DEFINITION OF "SEVERAL," 2 BL. COM. 39-40.) 

THESE ARE THE STATUTES AND ORDERS THAT CREATED THE SITUATION THAT LED
TO THIS LITIGATION. 

THE ISSUANCE OF THE WHITE ACT REGULATION OF MARCH 22, 1946, BROUGHT
CONCERN TO THE COMMERCIAL FISHING INTERESTS OF ALASKA.  THIS WAS
BECAUSE OF ITS DRASTIC PENALTIES.  SEE NOTE 49, INFRA.  THE NATIVE
VILLAGE OF KARLUK SPOKEN OF IN ORDER NO. 128 ESTABLISHING THE
RESERVATION IS SITUATED ON THE KARLUK RIVER, LONG RECOGNIZED AS ONE OF
THE MOST IMPORTANT SALMON SPAWNING STREAMS OF ALASKA.  THE NATIVES LIVE
AT ITS MOUTH ON SHELIKOF STRAIT.  THERE THE SALMON MUST CONGREGATE FROM
THE STRAIT TO ENTER THE CHANNEL OF THE RIVER LEADING TO THEIR SPAWNING
GROUNDS IN THE INTERIOR OF KODIAK ISLAND.  THE WATERS INCLUDED IN THE
RESERVATION ARE THOSE STRETCHING EIGHT MILES ALONG THE COAST NORTH AND
SOUTH OF THE MOUTH, 3,000 FEET INTO THE STRAIT.  THUS THE BEST OF THE
KARLUK SALMON FISHERY IS PUT INTO THE RESERVATION BY ORDER NO. 128. 
FN5  FOR AN UNDERSTANDING OF THE LOCALITY, A SKETCH MAP IS APPENDED. 

(FORM OMITTED) 

THE IMPORTANCE OF THE KARLUK FISHERY WILL BE APPRECIATED BY REFERENCE
TO A FEW OF THE FACTS IN CONNECTION WITH IT.  WHEN RUSSIA CEDED ALASKA
TO THE UNITED STATES IN 1867, 15 STAT. 539, KARLUK WAS ALREADY WELL
KNOWN AS AN ABUNDANT SALMON FISHERY.  FN6  BY 1885 THE SALMON CANNERIES
WERE FLOURISHING AND BANCROFT REPORTS THE KARLUK PACK AT 36,000 CASES
OUT OF A TOTAL OF 65,000.  FN7 THE PRODUCTION CONTINUED LARGE.  FN8
THE RED SALMON WAS MOST PROLIFIC.  THERE WERE VARIATIONS IN THE CATCH
BUT IT WAS ALWAYS VALUABLE.  FN9  IN LATER YEARS, THE FLUCTUATIONS
CONTINUED AND OTHER VARIETIES INCREASED RELATIVELY.  FN10 

NONE OF THE RESPONDENT COMPANIES HAVE PACKING PLANTS AT KARLUK.  ALL
ARE, HOWEVER, ON KODIAK ISLAND, WHICH IS AROUND 100 MILES LONG AND 50
BROAD, AND WITHIN FISHING DISTANCE OF THE RESERVATION WATERS.  THERE IS
A FISH REFRIGERATION PLANT ON THE RIVER.  THESE CANNERS HAVE CANNED
FISH FROM THESE WATERS FOR FROM SEVEN TO TWENTY-FOUR YEARS.  THE
PERCENTAGE OF EACH CANNER'S PACK THAT COMES FROM THE RESERVED WATERS IS
SO LARGE THAT THE TRIAL COURT FOUND IRREPARABLE INJURY TO THE PACKERS
IF THEY COULD NOT OBTAIN THE CATCH OF THE RESERVATION.  "...  NO OTHER
REPLACEMENT SOURCE OF SUCH SALMON FOR THEIR CANNERIES ON KODIAK ISLAND
IS AVAILABLE TO THEM."  THE CANNERS' INVESTMENT IS SUBSTANTIAL, RUNNING
FROM TWO TO FIVE HUNDRED THOUSAND DOLLARS RESPECTIVELY.  THE FISHING IS
DONE BY MEN WHO OWN THEIR OWN THREE- TO FOUR-MAN BOATS, USE SIMILAR
COMPANY BOATS OR OPERATE UNDER BOAT-BUYING CONTRACTS.  PRICES FOR THE
CATCH VARY FOR THESE CLASSIFICATIONS.  THESE PACKERS EMPLOY OVER FOUR
HUNDRED FISHERMEN, CHIEFLY RESIDENTS OF ALASKA, AND OVER SIX HUNDRED
CANNERY EMPLOYEES, CHIEFLY NONRESIDENTS. 

THE FISHING SEASON AT KARLUK BEGINS AROUND JUNE 1 AND CONTINUES
INTERMITTENTLY, DEPENDING UPON THE RUN OF FISH, UNTIL SEPT. 30.  AFTER
THE ISSUANCE OF SEC. 208.23(R) RESTRICTING THE FISHERY AT KARLUK
RESERVATION TO KARLUK NATIVES AND LICENSEES, RESPONDENTS BROUGHT THIS
ACTION AGAINST THE REGIONAL DIRECTOR FOR THE TERRITORY OF ALASKA OF THE
FISH AND WILDLIFE SERVICE TO PERMANENTLY ENJOIN THE EXCLUSION OF THEIR
FISHERMEN FROM THE RESERVATION ON THE GROUND THAT NEITHER REGULATION
SEC. 208.23(R) NOR PUBLIC LAND ORDER NO. 128 LEGALLY CLOSED THE FISHERY
OF THE COASTAL WATERS TO RESPONDENTS.  THE DISTRICT COURT GRANTED THE
PERMANENT INJUNCTION AND HELD INVALID BOTH THE REGULATION AND THE LAND
ORDER.  67 F.SUPP.  43.  ON THE SAME GROUNDS THE COURT OF APPEALS FOR
THE NINTH CIRCUIT AFFIRMED THE ORDER FOR PERMANENT INJUNCTION.  165
F.2D 323. 

                      I. 

(A)  AT THE OUTSET THE UNITED STATES CONTENDS THAT THE SECRETARY OF
THE INTERIOR IS AN INDISPENSABLE PARTY WHO MUST BE JOINED AS A PARTY
DEFENDANT IN ORDER TO GIVE THE DISTRICT COURT JURISDICTION OF THIS
SUIT.  IN WILLIAMS V. FANNING, 332 U.S. 490, THE TEST AS TO WHETHER A
SUPERIOR OFFICIAL CAN BE DISPENSED WITH AS A PARTY WAS STATED TO BE
WHETHER "THE DECREE WHICH IS ENTERED WILL EFFECTIVELY GRANT THE RELIEF
DESIRED BY EXPENDING ITSELF ON THE SUBORDINATE OFFICIAL WHO IS BEFORE
THE COURT."  P. 494.  SUCH IS THE PRECISE SITUATION HERE.  NOTHING IS
REQUIRED OF THE SECRETARY; HE DOES NOT HAVE TO PERFORM ANY ACT, EITHER
DIRECTLY OR INDIRECTLY.  RESPONDENTS MERELY SEEK AN INJUNCTION
RESTRAINING PETITIONER FROM INTERFERING WITH THEIR FISHING.  NO
AFFIRMATIVE ACTION IS REQUIRED OF PETITIONER, AND IF HE AND HIS
SUBORDINATES CEASE THEIR INTERFERENCE, RESPONDENTS HAVE BEEN ACCORDED
ALL THE RELIEF WHICH THEY SEEK.  THE ISSUES OF THE INSTANT SUIT CAN BE
SETTLED BY A DECREE BETWEEN THESE PARTIES WITHOUT HAVING THE SECRETARY
OF THE INTERIOR AS A PARTY TO THE LITIGATION. 

(B)  PETITIONER, REGIONAL DIRECTOR FOR THE TERRITORY OF ALASKA OF THE
FISH AND WILDLIFE SERVICE OF THE INTERIOR DEPARTMENT, IS CHARGED WITH
THE DUTY OF ENFORCING THE ACTS OF CONGRESS RELATING TO THE FISHERIES OF
ALASKA AND REGULATIONS ISSUED THEREUNDER.  THE DISTRICT COURT FOUND
THAT SINCE MARCH 22, 1946, THE EFFECTIVE DATE OF SEC. 208.23(R) OF THE
ALASKA FISHERIES GENERAL REGULATIONS, PETITIONER HAS CONTINUALLY
THREATENED THE SEIZURE OF ALL BOATS AND EQUIPMENT USED TO FISH IN THE
WATERS COVERED BY THIS REGULATION TO RESPONDENTS' SUBSTANTIAL AND
IRREPARABLE LOSS, AND THAT THE SEASONAL RUN OF SALMON IN THE
RESERVATION WATERS WAS ESSENTIAL FOR RESPONDENTS' PROFITABLE
OPERATION.  FROM THE FOLLOWING FACTS IT WILL BE SEEN THAT THERE IS
SUFFICIENT EVIDENCE TO SUPPORT THESE FINDINGS. 

AFTER THE PROMULGATION OF THE FISHERY REGULATION, SEC. 208.23(R), THE
WARDEN FOR THE FISH AND WILDLIFE SERVICE ON KODIAK ISLAND, ONE OF
PETITIONER'S SUBORDINATE AGENTS, REPEATEDLY INFORMED OFFICIALS OF THE
CANNERIES THAT THE REGULATION WOULD BE ENFORCED AND THAT THE NECESSARY
STEPS WOULD BE TAKEN TO PROSECUTE ANY VIOLATIONS.  HE COMMUNICATED TO
THE REPRESENTATIVES OF THE CANNERIES THE CONTENTS OF A TELEGRAM IN
WHICH PETITIONER DIRECTED THAT A CASE TO TEST THE REGULATION BE
ARRANGED FOR THE OPENING DAY OF THE FISHING SEASON.  THE CONTENTS OF
THIS TELEGRAM WERE RELAYED TO THE HEADQUARTERS IN SEATTLE OF THE ALASKA
SALMON INDUSTRY, INC., A TRADE ASSOCIATION OF THE CANNED SALMON PACKERS
OF WHICH ALL BUT ONE OF RESPONDENTS ARE MEMBERS.  THENCE THE
INFORMATION WAS DISTRIBUTED TO ALL INTERESTED PARTIES.  THE KODIAK
WARDEN THEN REITERATED TO THE CANNERY OPERATORS ON THAT ISLAND HIS
INTENTION TO ENFORCE THE REGULATION EVEN THOUGH HIS FORCE AND EQUIPMENT
WERE INADEQUATE FOR THE PURPOSE. 

THEREAFTER TWO OFFICERS OF THE INDIAN SERVICE WERE APPOINTED SPECIAL
AGENTS FOR THE FISH AND WILDLIFE SERVICE TO ASSIST IN THE ENFORCEMENT
OF THE FISHING REGULATIONS ISSUED BY THE INTERIOR DEPARTMENT.  THEY
ARRIVED AT KARLUK JUNE 24, 1946.  THESE TWO DEPUTIES WERE ARMED AND
MAINTAINED A BOAT PATROL IN THE WATERS OF THE RESERVATION.  THEY
CHECKED THE NAMES OF BOATS FISHING IN THE WATERS OF THE RESERVATION
AGAINST THE PERMITS ISSUED BY THE VILLAGE OF KARLUK.  NO BOATS WERE
ALLOWED INSIDE THE AREA WHICH HAD BEEN RESTRICTED FOR BEACH SEINING BY
VOTE OF THE INDIAN MEETING OF MAY 23, 1944,  FN11  AND WHICH WAS MARKED
OFF BY BUOYS.    IF RESPONDENTS SHOW THAT THEY ARE WITHOUT AN ADEQUATE
REMEDY AT LAW AND WILL SUFFER IRREPARABLE INJURY UNLESS THE ENFORCEMENT
OF THE ALLEGED INVALID REGULATION IS RESTRAINED, A CIVIL COURT WILL
ENJOIN.  FN12  WHILE ORDINARILY CRIMINAL PROSECUTIONS WILL NOT BE
RESTRAINED EVEN UNDER AN INVALID STATUTE,  FN13  A CIVIL ACTION WILL
LIE IN EXCEPTIONAL CIRCUMSTANCES THAT MAKE AN INJUNCTION NECESSARY TO
EFFECTUALLY PROTECT PROPERTY RIGHTS.  FN14 

THE FACTS HERETOFORE DETAILED AS TO THE INVESTMENTS OF RESPONDENTS IN
CANNERIES AND FISHING EQUIPMENT AND THEIR ESTABLISHED ACTIVITIES IN THE
WATERS OF THE RESERVATION MAKE CLEAR THE SERIOUS EFFECT ON THEM OF
EXCLUSION FROM THE RESERVATION.  IT IS NOT A THREAT OF A SINGLE
PROSECUTION, AS IN THE SPIELMAN CASE, BUT AN OUSTING OF RESPONDENTS AND
THEIR EMPLOYEES FROM THE FISHING GROUNDS UNLESS EACH INDIVIDUAL PERSON
TAKES A FISHING LICENSE.  UNDER THE FINDINGS THE RESPONDENTS COULD NOT
OPERATE PROFITABLY IF PROHIBITED FROM FISHING IN THE RESERVATION AREA. 
MANY FISHERMEN MAY STAY AWAY FROM THE GROUNDS FOR FEAR OF PUNISHMENT. 
IN THE PURSUIT OF THEIR OTHERWISE LAWFUL BUSINESS RESPONDENTS ARE
THREATENED WITH CRIMINAL PROSECUTION SHOULD THEY FISH IN THE WATERS OF
THE KARLUK RESERVATION WITHOUT A PERMIT FROM THE NATIVE VILLAGE.  FOR
THE VIOLATION OF THE APPLICABLE REGULATION UNDER THE WHITE ACT, SEVERE
PENALTIES ARE IMPOSED, INCLUDING FINE, IMPRISONMENT, THE SUMMARY
SEIZURE OF BOATS, HAUL, GEAR, EQUIPMENT, AND THEIR FORFEITURE TO THE
UNITED STATES.  FN15 THESE SANCTIONS DENY TO RESPONDENTS AN ADEQUATE
REMEDY AT LAW, FOR TO CHALLENGE THE REGULATION IN AN ORDINARY CRIMINAL
PROCEEDING IS TO HAZARD A LOSS AGAINST THE PAYMENT OF A LICENSE FEE AND
COMPLIANCE WITH THE FISHING RULES OF THE NATIVES.  YET TO STAY OUT OF
THE RESERVATION PREVENTS THE PROFITABLE OPERATION OF THE CANNERIES.  IN
SUCH A SITUATION A MAJORITY OF THE COURT THINKS THAT THE "DANGER OF
IRREPARABLE LOSS IS BOTH GREAT AND IMMEDIATE" AND PROPERLY CALLS FORTH
THE JURISDICTION OF THE COURT OF EQUITY.  FN16

                                 II. 

RESPONDENTS SOUGHT THIS INJUNCTION FORBIDDING CRIMINAL PROCEEDINGS
AIMED AT EXCLUDING THEM FROM FISHING IN THE COASTAL WATERS OF KARLUK
RESERVATION ON THE GROUND THAT PUBLIC LAND ORDER NO. 128, NOTE 1,
SUPRA, WAS INVALID AS A WHOLE AND PARTICULARLY BECAUSE OF THE INCLUSION
OF TIDELANDS AND COASTAL WATERS BY SEC. 2 OF THE ORDER. 

RESPONDENTS ATTACK IN THEIR COMPLAINT THE VALIDITY OF THE ENTIRE
ORDER BECAUSE "NO PART OF THE LAND AREA INVOLVED HAD BEEN WITHDRAWN BY
EXECUTIVE ORDER AND PLACED UNDER THE JURISDICTION OF THE DEPARTMENT OF
THE INTERIOR PRIOR TO MAY 1, 1936, AS REQUIRED BY THE ACT OF MAY 1,
1936."  THIS POSITION HAS NOT BEEN PRESSED OR DECIDED.  FN17  THE FINAL
ORDER FOR AN INJUNCTION AGAINST PETITIONER DOES NOT INCLUDE ANY RULING
ON THAT POINT. 

NOR DO WE THINK THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO
ESTABLISH THE KARLUK RESERVATION, PUBLIC LAND ORDER 128, BY VIRTUE OF
THE USE AND OCCUPANCY OF THE AREA BY THE NATIVES UNDER SEC. 8 OF THE
ACT OF MAY 17, 1884, 23 STAT. 26, OR SECS. 14 OR 15 OF THE ACT OF MARCH
3, 1891, 26 STAT. 1101, NEED BE DECIDED.  WHILE THE POINT IS REFERRED
TO IN THE BRIEFS, NO SUCH ISSUE WAS TENDERED BY THE COMPLAINT; NO SUCH
POINT WAS RAISED BY THE ASSIGNMENTS OF ERROR; THE QUESTION WAS
SPECIFICALLY PRETERMITTED BY THE OPINION OF THE COURT OF APPEALS, 165
F.2D AT 325; IT IS NOT INCLUDED IN THE QUESTIONS PRESENTED BY THE
PETITION FOR CERTIORARI AND IS NOT RELIED UPON BY THE RESPONDENTS TO
REQUIRE AFFIRMANCE OF THE COURT OF APPEALS DECREE. 

(A)  THE VALIDITY OF PUBLIC LAND ORDER 128 DEPENDS IN THIS CASE ON
THE SCOPE OF THE POWER GRANTED TO THE SECRETARY TO ESTABLISH THIS
RESERVATION BY THE LANGUAGE OF SEC. 2 OF THE ACT OF MAY 1, 1936, SUPRA,
AUTHORIZING THE SECRETARY OF THE INTERIOR TO DESIGNATE AS A RESERVATION
"ANY OTHER PUBLIC LANDS WHICH ARE ACTUALLY OCCUPIED BY INDIANS OR
ESKIMOS WITHIN SAID TERRITORY."  AN ADMINISTRATIVE ORDER IS
PRESUMPTIVELY VALID.  FN18 

IN THIS INSTANCE, THE SECRETARY ACTED UNDER A STATUTE, SEC. 2, ACT OF
MAY 1, 1936, AND THROUGH DELEGATION OF PRESIDENTIAL AUTHORITY.  FN19
THIS DELEGATION IN TURN RESTED ON THE ACT OF JUNE 25, 1910, 36 STAT.
847.  FN20  THIS CHAIN OF DELEGATED AUTHORITY FOR THE ALLOCATION OF
PUBLIC LANDS IN ALASKA RETAINS FOR FUTURE CONGRESSIONAL ACTION THE
POWER FOR THE ULTIMATE DISPOSITION OF THE PROPERTY, LAND AND WATER,
WITHIN THE BOUNDARIES OF THE RESERVATION.  WITHDRAWALS UNDER THE ACT OF
JUNE 25, 1910, ARE "TEMPORARY" AND "UNTIL REVOKED BY HIM OR BY AN ACT
OF CONGRESS." 

THE WHEELER-HOWARD ACT OF JUNE 18, 1934, "TO CONSERVE AND DEVELOP
INDIAN LANDS AND RESOURCES," WHICH WAS EXTENDED TO THE TERRITORY OF
ALASKA BY SEC. 1 OF THE ACT OF MAY 1, 1936, AUTHORIZED THE SECRETARY OF
THE INTERIOR TO RESTORE TO TRIBAL OWNERSHIP ONLY THE REMAINING SURPLUS
LANDS OF ANY INDIAN RESERVATION THERETOFORE OPENED FOR SALE OR OTHER
DISPOSITION.  FN21  IT DID NOT AUTHORIZE THE CREATION OF RESERVATION OF
ANY KIND.  ITS ONLY REFERENCE TO ACQUISITION OF LANDS BY OR FOR INDIANS
IS IN SEC. 5 WHERE APPROPRIATIONS ARE AUTHORIZED FOR THAT PURPOSE. 
THIS SECTION IS INAPPLICABLE HERE. 

OPINION, PAGE 91, SUPRA, GIVES NO POWER TO THE SECRETARY TO DISPOSE
FINALLY OF FEDERAL LANDS.  BY THE NEW SECTION HE IS AUTHORIZED SIMPLY
"TO DESIGNATE AS AN INDIAN RESERVATION" ANY OTHER PUBLIC LANDS WHICH
ARE ACTUALLY OCCUPIED BY INDIANS OR ESKIMOS WITHIN SAID TERRITORY. 
THERE IS NO LANGUAGE IN THE VARIOUS ACTS, IN THEIR LEGISLATIVE HISTORY,
OR IN LAND ORDER 128, FROM WHICH AN INFERENCE CAN BE DRAWN THAT THE
SECRETARY HAS OR HAS CLAIMED POWER TO CONVEY ANY PERMANENT TITLE OR
RIGHT TO THE INDIANS IN THE LANDS OR WATERS OF KARLUK RESERVATION. 
RATHER THE CONTRARY IS TRUE.  IN THE ACT OF MAY 14, 1898, 30 STAT. 409,
48 U.S.C. SEC. 411, "EXTENDING THE HOMESTEAD LAWS AND PROVIDING FOR
RIGHT OF WAY FOR RAILROADS IN THE DISTRICT OF ALASKA, AND FOR OTHER
PURPOSES," THERE IS THE EXPRESS PROVISO THAT NOTHING CONTAINED IN THE
ACT "SHALL BE CONSTRUED AS IMPAIRING IN ANY DEGREE THE TITLE OF ANY
STATE THAT MAY HEREAFTER BE ERECTED OUT OF THE TERRITORY OF ALASKA, OR
ANY PART THEREOF, TO TIDE LANDS AND BEDS OF ANY OF ITS NAVIGABLE
WATERS, OR THE RIGHT OF SUCH STATE TO REGULATE THE USE THEREOF, NOR THE
RIGHT OF THE UNITED STATES TO RESUME POSSESSION OF SUCH LANDS, IT BEING
DECLARED THAT ALL SUCH RIGHTS SHALL CONTINUE TO BE HELD BY THE UNITED
STATES IN TRUST FOR THE PEOPLE OF ANY STATE OR STATES WHICH MAY
HEREAFTER BE ERECTED OUT OF SAID TERRITORY.  THE TERM 'NAVIGABLE
WATERS,' AS HEREIN USED, SHALL BE HELD TO INCLUDE ALL TIDAL WATERS UP
TO THE LINE OF ORDINARY HIGH TIDE AND ALL NONTIDAL WATERS NAVIGABLE IN
FACT UP TO THE LINE OF ORDINARY HIGH-WATER MARK."  INDEED THE UNITED
STATES AFFIRMS IN ITS BRIEF THAT KARLUK RESERVATION IS MERELY A
RESERVATION "FOR A PARTICULAR GOVERNMENTAL USE," NOT A DISPOSAL OF THE
AREA.  THE GOVERNMENT SAYS IT IS LIKE SIOUX TRIBE V. UNITED STATES, 316
U.S. 317, NOT LIKE UNITED STATES V. HOLT BANK, 270 U.S. 49. 

AN INDIAN RESERVATION CREATED BY EXECUTIVE ORDER OF THE PRESIDENT
CONVEYS NO RIGHT OF USE OR OCCUPANCY TO THE BENEFICIARIES BEYOND THE
PLEASURE OF CONGRESS OR THE PRESIDENT.  SUCH RIGHTS MAY BE TERMINATED
BY THE UNILATERAL ACTION OF THE UNITED STATES WITHOUT LEGAL LIABILITY
FOR COMPENSATION IN ANY FORM EVEN THOUGH CONGRESS HAS PERMITTED SUIT ON
THE CLAIM.  SIOUX TRIBE V. UNITED STATES, 316 U.S. 317; SEE UNITED
STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339 AT 347.  FN22  WHEN A
RESERVATION IS ESTABLISHED BY A TREATY RATIFIED BY THE SENATE OR A
STATUTE, THE QUALITY OF THE RIGHTS THEREBY SECURED TO THE OCCUPANTS OF
THE RESERVATION DEPENDS UPON THE LANGUAGE OR PURPOSE OF THE
CONGRESSIONAL ACTION.  FN23  SINCE CONGRESS, UNDER THE CONSTITUTION,
SEC. 3 OF ART. IV, HAS THE POWER TO DISPOSE OF THE LANDS OF THE UNITED
STATES, IT MAY CONVEY TO OR RECOGNIZE SUCH RIGHTS IN THE INDIANS, EVEN
A TITLE EQUAL TO FEE SIMPLE, AS IN ITS JUDGMENT IS JUST.  SHOSHONE
INDIANS V. UNITED STATES, 324 U.S. 335, 339, 340.  WHEN CONGRESS
INTENDS TO DELEGATE POWER TO TURN OVER LANDS TO THE INDIANS
PERMANENTLY, ONE WOULD EXPECT TO AND DOUBTLESS WOULD FIND DEFINITE
INDICATIONS OF SUCH A PURPOSE.  FN24 

IN THE PRESENT CASE A DETERMINATION OF THE POWER DELEGATED TO THE
SECRETARY OF THE INTERIOR BY THE WHEELER-HOWARD ACT OF JUNE 18, 1934,
AND SEC. 2 OF THE ACT OF MAY 1, 1936, IS IMPORTANT.  IT IS IMPORTANT
FOR THE REASON THAT A STATUTE THAT AUTHORIZES PERMANENT DISPOSITION OF
FEDERAL PROPERTY WOULD BE MOST STRICTLY CONSTRUED TO AVOID INCLUSION OF
FISHERIES BY IMPLICATION.  PETITIONER ARGUES FOR A HOLDING THAT THE
POWER GRANTED COVERS WATER AS WELL AS LAND.  IF THAT POWER WERE BROAD
ENOUGH TO ENABLE THE SECRETARY TO DESIGNATE NONREVOCABLE OR PERMANENT
RESERVATIONS OF ALL ALASKA FISHING GROUNDS FOR THE SOLE BENEFIT OF
NATIVES LIVING IN VILLAGES ADJACENT TO THE FISHERIES, IT MIGHT PLACE IN
HIS HANDS THE POWER TO GRANT THE NATIVES THE RIGHT TO EXCLUDE ALL OTHER
FISHERMEN FROM THE FISHERIES.  IN THIS PRESENT CASE, FOR EXAMPLE, IT
MIGHT MEAN THAT THE NATIVE RESIDENTS OF THE KARLUK RESERVATION WOULD
HAVE THE PERPETUAL USE AND ENJOYMENT OF THIS VALUABLE KARLUK FISHERY
FOR THEMSELVES AND THEIR LICENSEES.  FN25 ON MAY 23, 1944, A YEAR AFTER
PUBLIC LAND ORDER 128, THE PETITIONER SHOWS THAT THERE WERE 57
RESIDENTS ELIGIBLE TO VOTE FOR APPROVAL OF THE DESIGNATION OF THE
RESERVATION.  FN26  AS INDICATED BY THE CASES HEREINBEFORE CITED, A
RECOGNITION OF SUCH OWNERSHIP IN INDIANS MIGHT REQUIRE JUST
COMPENSATION TO THEM OF THE FAIR VALUE OF THE FISHERY, IF THE UNITED
STATES SHOULD DESIRE HEREAFTER TO REOPEN THE AREA TO THE PUBLIC UNDER
ITS REGULATIONS.  THERE IS MUCH LESS REASON TO READ SUCH POWER OF
PERMANENT DISPOSITION BY THE SECRETARY INTO SEC. 2 THAN THERE WAS TO
READ IT INTO THE PRESIDENT'S "IMPLIED GRANT OF POWER" TO CREATE
RESERVATIONS.  UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459, 475.  IT
WOULD TAKE SPECIFIC AND UNAMBIGUOUS LEGISLATION TO CAUSE US TO RULE
THAT CONGRESS INTENDED TO AUTHORIZE THE SECRETARY OF THE INTERIOR TO
ALIENATE THE ALASKA FISHERIES PERMANENTLY FROM PUBLIC CONTROL.  FN27
THE ARGUMENT THAT CONGRESS DID NOT INTEND TO AUTHORIZE THE DESIGNATION
OF WATER OR FISHERIES AS A PART OF AN INDIAN RESERVATION HAS BEHIND IT
THE UNARTICULATED PREMISE THAT THE UNITED STATES MUST HAVE COMPLETE
POWER TO PROTECT, IMPROVE AND REGULATE FOR THE GOOD OF ALL OUR PEOPLE
THESE UNRIVALLED SEA FISHERIES WITH THEIR WEALTH OF FOOD.  IT LOSES
MUCH OF ITS FORCE BY OUR CONCLUSION THAT ALASKAN INDIAN RESERVATIONS
ESTABLISHED OR ENLARGED UNDER SEC. 2 ARE SUBJECT TO THE UNFETTERED WILL
OF CONGRESS.  FN28 

(B)  AN ARGUMENT THAT THE RESERVATION IS A NONREVOCABLE GRANT CAN BE
MADE.  UNDER THE ACT OF JUNE 18, 1934, SEC. 16, APPLICABLE TO ALASKA,
SEE SEC. 13, AN INDIAN TRIBE WAS AUTHORIZED TO ADOPT A CONSTITUTION AND
BY-LAWS FOR ITS GOVERNMENT.  THIS WAS DONE BY THE KARLUK RESERVATION
INDIANS.  THERE IS A PHRASE IN THE SECTION THAT HAS COLOR OF
RECOGNITION OF OWNERSHIP OF TRIBAL LANDS IN THE INDIANS.  IT READS AS
FOLLOWS: 

"IN ADDITION TO ALL POWERS VESTED IN ANY INDIAN TRIBE OR TRIBAL
COUNCIL BY EXISTING LAW, THE CONSTITUTION ADOPTED BY SAID TRIBE SHALL
ALSO VEST IN SUCH TRIBE OR ITS TRIBAL COUNCIL THE FOLLOWING RIGHTS AND
POWERS:  ...  TO PREVENT THE SALE, DISPOSITION, LEASE, OR ENCUMBRANCE
OF TRIBAL LANDS, INTERESTS IN LANDS, OR OTHER TRIBAL ASSETS WITHOUT THE
CONSENT OF THE TRIBE; ...  " 48 STAT. 987.  FN29 

WE THINK, HOWEVER, IN VIEW OF THE BREADTH OF THE COVERAGE OF THE
WHEELER-HOWARD ACT THAT THIS LANGUAGE WOULD BE EFFECTIVE ONLY WHERE
THERE HAS BEEN SPECIFIC RECOGNITION BY THE UNITED STATES OF INDIAN
RIGHTS TO CONTROL ABSOLUTELY TRIBAL LANDS. 

PERSUASIVE OF THIS CONCLUSION IS THAT THE BILL WHEN ORIGINALLY
PROPOSED BY INTERIOR PROVIDED IN SEC. 7 OF TITLE III THAT "TITLE TO ANY
LAND ACQUIRED PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL BE TAKEN
IN THE NAME OF THE UNITED STATES IN TRUST FOR THE INDIAN TRIBE OR
COMMUNITY FOR WHOM THE LAND IS ACQUIRED, BUT TITLE MAY BE TRANSFERRED
BY THE SECRETARY TO SUCH COMMUNITY UNDER THE CONDITIONS SET FORTH IN
THIS ACT."  THE ITALICIZED WORDS WERE OMITTED WHEN THIS SECTION WAS
INCORPORATED INTO SEC. 5 OF THE WHEELER-HOWARD ACT.  SEE HEARINGS
BEFORE HOUSE COMMITTEE ON INDIAN AFFAIRS, 73D CONG., 2D SESS., ON H.R.
7902, P. 9. 

TURNING TO SEC. 2 OF THE ACT OF MAY 1, 1936, THE STRONGEST ARGUMENT
FOR THE NONREVOCABILITY OF A RESERVATION CREATED UNDER SEC. 2 OF THAT
ACT COMES FROM A LETTER OF THE SECRETARY OF THE INTERIOR PRINTED IN THE
HOUSE AND SENATE REPORTS ON THE BILL WHICH BECAME THE ACT IN QUESTION. 
FN30  THE REPORTS, SPEAKING OF SEC. 2, SAID: 

"THIS PROVISION IN REALITY CARRIES OUT THE PROMISE OF THIS GOVERNMENT
CONTAINED IN ITS ACT APPROVED ON MAY 17, 1884(23 STAT. 26), AS
FOLLOWS: 

"'PROVIDED, THAT THE INDIANS OR OTHER PERSONS IN SAID DISTRICT SHALL
NOT BE DISTURBED IN THE POSSESSION OF ANY LANDS ACTUALLY IN THEIR USE
OR OCCUPATION OR NOW CLAIMED BY THEM BUT THE TERMS UNDER WHICH SUCH
PERSONS MAY ACQUIRE TITLE TO SUCH LANDS IS RESERVED FOR FUTURE
LEGISLATION BY CONGRESS.'"  H.R. REP. NO. 2244, 74TH CONG., 2D SESS.,
P. 3. 

THE PERTINENT PART OF THE LETTER IS SET OUT BELOW.  FN31  THE
LEGISLATION WAS, OF COURSE, A FULFILLMENT OF THE AID FORESHADOWED IN
THE STATUTES REFERRED TO IN THE LETTER.  SUCH REFERENCES TO GENERAL
LEGISLATION ON PUBLIC LANDS IN THE HUGE TERRITORY OF ALASKA, HOWEVER,
CANNOT BE TREATED AS AN ADEQUATE BASIS FOR COURTS TO DECLARE THAT POWER
WAS GIVEN THE SECRETARY OF THE INTERIOR TO DISPOSE FINALLY OF ALASKA
LANDS.  THE FIRST SECTION OF THE ACT OF MAY 1 WAS A MERE AMENDMENT OF
THE WHEELER-HOWARD ACT TO BRING ALASKA UNDER ITS COVERAGE.  THE WHEELER
HOWARD ACT DID NOT AUTHORIZE THE CREATION OF INDIAN RESERVATIONS. 
INTENDED TO PERMIT THE ORGANIZATION OF THE ALASKA NATIVES SO THAT THEY
COULD AVAIL THEMSELVES OF THE EARLIER ACT.  FN32  IT CANNOT BE SAID, WE
THINK, THAT SUCH RESERVATIONS MAY BE PERMANENT OR NONREVOCABLE.  A
READING OF SEC. 2 WILL SHOW THAT THERE ARE NO WORDS WITH THE
CONNOTATION OF RECOGNITION OR CONVEYANCE OF TITLE.  THERE ARE NO WORDS,
SUCH AS APPEAR IN OTHER STATUTES,  FN33  RESERVING THE RIGHT OF
EXPLORATION, DISCOVERY AND CLAIM FOR PRECIOUS METALS AND VALUABLE
MINERALS.  THERE IS NO DISCUSSION IN THE REPORTS OR THE DEBATES THAT
SHOW A DEFINITE INTENTION OF ANYONE TO PART WITH PUBLIC PROPERTY TO
ESTABLISH AN ALASKAN INDIAN COMMUNAL SYSTEM.  UNDER SUCH CIRCUMSTANCES,
WE THINK THE LAND AND WATER RESERVATIONS CREATED UNDER SEC. 2 ARE
RESERVATIONS AT WILL. 

(C)  WE ARE CONVINCED THAT SEC. 2 OF THE ACT OF MAY 1, 1936,
AUTHORIZES THE SECRETARY OF THE INTERIOR TO INCLUDE IN THE KARLUK
RESERVATION THE WATERS DESCRIBED IN SEC. 2 OF PUBLIC LAND ORDER NO.
128.  TO INTERPRET THE CLAUSE "OR ANY OTHER PUBLIC LANDS WHICH ARE
ACTUALLY OCCUPIED BY INDIANS OR ESKIMOS WITHIN SAID TERRITORY" TO
DESCRIBE ONLY LAND ABOVE MEAN LOW TIDE IS TOO RESTRICTIVE IN VIEW OF
THE HISTORY AND HABITS OF ALASKA NATIVES AND THE COURSE OF
ADMINISTRATION OF INDIAN AFFAIRS IN THAT TERRITORY.  THE TITLE TO THE
UPLANDS AND WATERS IN QUESTION IS IN THE UNITED STATES.  FN34  THE
FISHERIES AS WELL AS THE UPLANDS ARE SUBJECT TO ITS PRESENT CONTROL. 
FN35  IN 1868 CONGRESS EXTENDED OUR LAWS RELATING TO CUSTOMS, COMMERCE
AND NAVIGATION OVER THE "MAINLAND, ISLANDS, AND WATERS OF THE
TERRITORY."  15 STAT. 240.  THE SEAL ISLANDS AND THE WATERS ADJACENT
THERETO WERE PROMPTLY MADE A RESERVATION FOR THE PRESERVATION AND
EXPLOITATION OF THE SEAL FISHERY.  15 STAT. 348, 16 STAT. 180.  A CIVIL
GOVERNMENT FOR THE NEW TERRITORY WAS SET UP IN 1884.  23 STAT. 24.  IN
THAT ACT APPEARED THE PROVISO REFERRED TO SUPRA, N. 31, IN THE LETTER
OF THE SECRETARY OF THE INTERIOR.  BY SEC. 12 A COMMISSION WAS
EMPOWERED TO REPORT UPON THE CONDITION OF THE INDIANS.  FN36  ON JUNE
30, 1885, THE COMMISSION REPORTED TO THE SECRETARY OF THE INTERIOR AS
TO THE FISHERIES IN THE WORDS IN THE MARGIN BELOW.  FN37 

BY VIRTUE OF SEC. 15 OF THE ACT OF CONGRESS OF MARCH 3, 1891, SUPRA,
NOTE 28, THE CONGRESS SET APART THE "BODY OF LANDS KNOWN AS ANNETTE
ISLANDS" IN ALASKA FOR A RESERVATION FOR THE METLAKAHTLA INDIANS. 
NOTHING WAS SAID AS TO FISHING RIGHTS.  A PRESIDENTIAL PROCLAMATION OF
APRIL 28, 1916, RESERVED TO THEM THE SURROUNDING WATERS WITHIN 3,000
FEET.  39 STAT. 1777.  FN38  AFTER THE PROCLAMATION A PROCEEDING WAS
BROUGHT BY THE UNITED STATES RELYING UPON THE STATUTE AND PROCLAMATION
TO OUST A FISH TRAP OF THE ALASKA PACIFIC FISHERIES FROM THE WATERS
MENTIONED IN THE PROCLAMATION.  SUCH A DECREE WAS OBTAINED IN THE
DISTRICT COURT AND AFFIRMED BY THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT ON THE GROUND "THAT THE RESERVATION OF ANNETTE ISLAND
BY THE ACT OF CONGRESS, AND OF ITS SURROUNDING WATERS BY THE
PRESIDENT'S PROCLAMATION, IS FULLY SUSTAINED."  ALASKA PACIFIC
FISHERIES V. UNITED STATES, 240 F. 274, 283.  FOR THE VALIDITY OF THE
PROCLAMATION, RELIANCE WAS PLACED UPON HIS POWER TO RESERVE LANDS FOR
RESERVATIONS WITHOUT SPECIFIC AUTHORITY.  SEE UNITED STATES V. MIDWEST
OIL CO., SUPRA.  THIS COURT AFFIRMED THE DECREE AS TO THE WATERS WITHIN
3,000 FEET OF THE SHORE LINES.  ALTHOUGH IN THE BRIEF A VIGOROUS ATTACK
WAS MADE ON THE POWER TO ISSUE THE PROCLAMATION COVERING THE WATERS,
THE PROCLAMATION WAS NOT REFERRED TO IN THE UNANIMOUS OPINION HERE. 
THIS COURT FELT COMPELLED TO DECIDE THAT THE FISHERIES WERE INCLUDED IN
THE LANGUAGE OF THE STATUTE BY THE PURPOSE TO ASSIST THE INDIANS TO
TRAIN THEMSELVES.  FISHING WAS SAID TO GIVE VALUE TO THE ISLANDS.  "THE
USE OF THE ADJACENT FISHING GROUNDS WAS EQUALLY ESSENTIAL.  WITHOUT
THIS THE COLONY COULD NOT PROSPER IN THAT LOCATION."  ALASKA PACIFIC
FISHERIES V. UNITED STATES, 248 U.S. 78, 89. 

THE CONDITIONS AS TO THE WATERS AROUND THE ANNETTE ISLANDS CLOSELY
PARALLEL THOSE OF OTHER ALASKA AREAS ACTUALLY OCCUPIED BY NATIVES.  THE
ANNETTE ISLANDS CASE WAS RELIED UPON BY THE SECRETARY OF THE INTERIOR
FOR HIS AUTHORITY TO INCLUDE THE FISHERIES UNDER SEC. 2 OF THE ACT OF
MAY 1, 1936.  56 INT. DEPT. 110.  THE ALASKA ABORIGINES, LIKE THE
METLAKAHTLANS, ARE FISHERMEN.  THEY, TOO, DEPEND UPON THE WATERS FOR A
LARGE PART OF THEIR SUPPORT.  FOR THEM THE ADJACENT FISHERIES ARE AS
IMPORTANT AS, PERHAPS MORE IMPORTANT THAN, THE FORESTS, THE FUR-BEARING
ANIMALS OR THE MINERALS. 

RESPONDENTS URGE UPON US THE CASES IN THIS AND OTHER COURTS WHICH
HAVE HELD THAT THE PHRASE "PUBLIC LANDS," THE TERM NOW UNDER
CONSIDERATION, USED IN SEC. 2 OF THE ACT OF MAY 1, 1936, DOES NOT
INCLUDE ANY AREA EXTENDING BELOW MEAN HIGH TIDE.  FN39  AS THE
RESPONDENTS STATE, THIS CASE TURNS NOT ON TIDELANDS, THE AREA BETWEEN
MEAN HIGH AND MEAN LOW TIDES, BUT ON WHETHER THE SECRETARY COULD
INCLUDE COASTAL WATERS IN THE RESERVATION, I.E., THE AREA "3,000 FEET
FROM THE SHORE LINE AT MEAN LOW TIDE."  AS WE UNDERSTAND RESPONDENTS'
ARGUMENT AND AS WE SEE THIS CASE, THE QUESTION OF TIDELANDS IS NOT
SIGNIFICANT.  REFERENCE TO MANN V. TACOMA LAND CO., 153 U.S. 273, 283,
WILL MAKE CLEAR RESPONDENTS' POSITION.  BEFORE THE ADMISSION OF
WASHINGTON TO STATEHOOD, NOVEMBER 11, 1889, 26 STAT. 1552, THE UNITED
STATES ISSUED LAND SCRIP TO MANN FOR LOCATION ON "UNOCCUPIED AND
UNAPPROPRIATED PUBLIC LANDS" AND THE HOLDER MADE LOCATION ON TIDELANDS
AND RECEIVED THE REGISTER'S CERTIFICATE THEREFOR.  WHEN MANN SOUGHT TO
RESTRAIN TRESPASS ON THE LAND SO OBTAINED, THIS COURT HELD:  "IT IS
SETTLED THAT THE GENERAL LEGISLATION OF CONGRESS IN RESPECT TO PUBLIC
LANDS DOES NOT EXTEND TO TIDE LANDS.  THERE IS NOTHING IN THE ACT
AUTHORIZING THE VALENTINE SCRIP, OR IN THE CIRCUMSTANCES WHICH GAVE
OCCASION FOR ITS PASSAGE, TO MAKE AN EXCEPTION TO THE GENERAL RULE." 
P. 284.  RESPONDENTS ASSERT THAT THE REFERENCE TO PUBLIC LANDS IN SEC.
2 SHOULD BE CONSTRUED IN THE SAME MANNER, SINCE THE FEDERAL LAND LAWS
APPLY TO ALASKA  FN40  AS DO THE REASONS FOR EXCLUDING WATERS SEAWARD
OF MEAN HIGH TIDE.  FN41 

THE GOVERNMENT POINTS OUT THAT THE CASES RELATING TO THE LIMITS OF
"PUBLIC LANDS" ARE CASES WHERE FINAL DISPOSITION, NOT TEMPORARY USE, OF
THE LANDS APPEARED.  WHEN ONE DEALS WITH A STATUTE SO LARGE IN PURPOSE
AS TO JUSTIFY THE ABOVE-QUOTED COMMENT OF THE SECRETARY OF THE INTERIOR
THAT IT "PROVIDES A METHOD BY WHICH THE FINANCIAL AID PROVISIONS OF THE
INDIAN REORGANIZATION ACT MAY BE EXTENDED TO THOSE INDIANS AND ESKIMOS
OF ALASKA WHO OCCUPY ESTABLISHED VILLAGES," ONE MAY NOT FULLY
COMPREHEND THE STATUTE'S SCOPE BY EXTRACTING FROM IT A SINGLE PHRASE,
SUCH AS "PUBLIC LANDS," AND GETTING THE PHRASE'S MEANING FROM THE
DICTIONARY OR EVEN FROM DISSIMILAR STATUTES.  SECTION 2 OF THE ACT OF
MAY 1, 1936, IS BUT ONE OF A SERIES OF ENACTMENTS RELATING TO ALASKA
NATIVES, LANDS AND FISHERIES.  IT MUST "BE TAKEN AS INTENDED TO FIT
INTO THE EXISTING SYSTEM" AND INTERPRETED IN THAT ASPECT.  FN42  THERE
IS NOTHING THAT WE HAVE FOUND IN THE STATUTE OR THE LEGISLATIVE HISTORY
TO JUSTIFY THE SIGNIFICANCE PUT UPON THE USE OF THE WORDS "PUBLIC
LANDS" IN THE CLAUSE OF SEC. 2 UNDER DISCUSSION INSTEAD OF "LANDS" USED
IN THE PRECEDING CLAUSES.  IF A DIFFERENTIATION WAS INTENDED, SURELY IT
WOULD HAVE BEEN MORE DEFINITELY EXPRESSED. 

TAKING INTO CONSIDERATION THE IMPORTANCE OF THE FISHERIES TO THE
ALASKA NATIVES, THE TEMPORARY CHARACTER OF THE RESERVATION, THE ANNETTE
ISLANDS CASE, THE ADMINISTRATIVE DETERMINATION, THE PURPOSE OF CONGRESS
TO ASSIST THE NATIVES BY THE ALASKA AMENDMENT TO THE WHEELER-HOWARD
ACT, WE HAVE CONCLUDED THAT THE SECRETARY OF THE INTERIOR WAS
AUTHORIZED TO INCLUDE THE WATERS IN THE RESERVATION.  NO INJUNCTION
THEREFORE MAY BE OBTAINED BECAUSE OF THE INVALIDITY OF ORDER NO. 128. 

              III. 

SUBDIVISION II OF THIS OPINION HAS BEEN DIRECTED TOWARD THE
DETERMINATION OF THE SCOPE OF SEC. 2 OF THE ACT OF MAY 1, 1936,
EXTENDING THE WHEELER-HOWARD ACT TO ALASKA.  WE WERE LED TO HOLD THAT
ORDER 128, SET OUT IN FULL IN NOTE 1, SUPRA, VALIDLY INCLUDED IN THE
RESERVATION THE WATERS TO A DISTANCE OF 3,000 FEET FROM ITS SHORES.  IN
HIS HANDLING OF THE PROBLEMS OF THE KARLUK NATIVES AS AFFECTED BY THEIR
NEED FOR A RESERVATION AND FISHING RIGHTS, THE SECRETARY OF THE
INTERIOR TOOK ANOTHER STEP UNDER THE AUTHORITY OF SEC. 1 OF ANOTHER
ACT, THE WHITE ACT.  THE SECTION IS SET OUT AT LENGTH IN THE TEXT
BEGINNING ON PAGE 92 OF THIS OPINION.  THE ACT WAS FOR THE PROTECTION
OF THE FISHERIES OF ALASKA.  SECTION 1 AUTHORIZED THE SECRETARY TO SET
APART FISHING AREAS IN ANY OF THE WATERS OF ALASKA AND ESTABLISH IN
THOSE PRESERVES CLOSED SEASONS "DURING WHICH FISHING MAY BE LIMITED OR
PROHIBITED." 

PURSUANT TO THIS STATUTE DETAILED REGULATIONS WERE ISSUED BY THE
SECRETARY OF COMMERCE AND THEY HAVE BEEN CONTINUED BY THE SECRETARY OF
THE INTERIOR SINCE REOGANIZATION PLAN NO. II, NOTE 4, SUPRA.  FN43  ONE
AREA ESTABLISHED WAS THE KODIAK AREA WHICH INCLUDED THE WATERS HERE IN
QUESTION.  FN44  AMONG THE WATERS AT FIRST CLOSED TO COMMERCIAL SALMON
FISHING WERE THE KARLUK RIVER SPAWNING WATERS AND THOSE WITHIN 100
YARDS OF ITS MOUTH.  FN45  LATER THE SECRETARY OF THE INTERIOR, STILL
ACTING SOLELY UNDER SEC. 1 OF THE WHITE ACT, ADDED THE WATERS OF THE
KARLUK RESERVATION TO THE PROHIBITED AREAS.  FN46  AN EXCEPTION WAS
MADE IN THE REGULATION TO THE PROHIBITION AGAINST FISHING IN THE
RESERVATION WATERS.  THE PRECISE LANGUAGE OF THE ENTIRE SUBSECTION (R)
OF THE REGULATION, $208.23, IS ON PAGE 92 OF THIS OPINION.  WE REPEAT
HERE THE EXCEPTION: 

"THE FOREGOING PROHIBITION SHALL NOT APPLY TO FISHING BY NATIVES IN
POSSESSION OF SAID RESERVATION, NOR TO FISHING BY OTHER PERSONS UNDER
AUTHORITY GRANTED BY SAID NATIVES (49 STAT. 1250; 48 U.S.C. 358A). 
SUCH AUTHORITY SHALL BE GRANTED ONLY BY OR PURSUANT TO ORDINANCE OF THE
NATIVE VILLAGE OF KARLUK, APPROVED BY THE SECRETARY OF THE INTERIOR OR
HIS DULY AUTHORIZED REPRESENTATIVE."  THE CITATION TO 49 STAT. 1250 IS
TO THE ACT OF MAY 1, 1936, AUTHORIZING THE CREATION OF THE
RESERVATION.  PERHAPS IT WAS THOUGHT THAT THE CREATION OF THE
RESERVATION JUSTIFIED THIS EXCEPTION IN THE WHITE ACT REGULATION BUT WE
DO NOT UNDERSTAND THAT ANY SUPPORT FROM THAT ACT IS CLAIMED FOR THE
ESTABLISHMENT OF THE WHITE ACT PRESERVE. 

THE VALIDITY OF THE EXCEPTION PERMITTING FISHING BY NATIVES IN
POSSESSION OF THE RESERVATION AND THEIR LICENSEES IS CHALLENGED BY
RESPONDENTS BECAUSE OF A PROVISO IN SEC. 1 OF THE WHITE ACT, READING: 

"PROVIDED, THAT EVERY SUCH REGULATION MADE BY THE SECRETARY OF
COMMERCE SHALL BE OF GENERAL APPLICATION WITHIN THE PARTICULAR AREA TO
WHICH IT APPLIES, AND THAT NO EXCLUSIVE OR SEVERAL RIGHT OF FISHERY
SHALL BE GRANTED THEREIN, NOR SHALL ANY CITIZEN OF THE UNITED STATES BE
DENIED THE RIGHT TO TAKE, PREPARE, CURE, OR PRESERVE FISH OR SHELLFISH
IN ANY AREA OF THE WATERS OF ALASKA WHERE FISHING IS PERMITTED BY THE
SECRETARY OF COMMERCE.  ...  " 

RESPONDENTS ALLEGED THAT THE EXCEPTION FOR FISHING BY NATIVES AND
THEIR LICENSEES MADE SEC. 208.23(R) WHOLLY ILLEGAL BECAUSE IT WAS
INCONSISTENT WITH THE PROVISO OF SEC. 1 OF THE WHITE ACT AS TO
EXCLUSIVE OR SEVERAL RIGHT OF FISHERY.  THE DISTRICT AND CIRCUIT COURTS
AGREED WITH THIS ARGUMENT AND THE DISTRICT COURT SAID THAT THE
REGULATION MUST BE VIEWED IN ITS ENTIRETY, 67 F.SUPP.  43, 49.  WE
AGREE THAT IT IS NOT POSSIBLE TO SEPARATE THE CLOSING OF THE AREA FROM
THE EXCEPTION AND THUS HOLD THE CLOSING APPLICABLE TO EVERYONE.  A
RIGHT TO FISH LOCALLY IS TOO IMPORTANT TO THE NATIVES IN ALASKA FOR US
TO CONCLUDE FROM THIS RECORD THAT THE SECRETARY WOULD HAVE PROMULGATED
THE PROHIBITION TO FISH FOR SALMON IN RESERVATION WATERS WITHOUT THE
EXCEPTION IN FAVOR OF THE NATIVES.  WE HAVE NO DOUBT, HOWEVER, THAT THE
WHITE ACT AUTHORIZES THE ESTABLISHMENT OF WHITE ACT PRESERVES OR CLOSED
AREAS IN RESERVATIONS CREATED, AS THE KARLUK RESERVATION, UNDER SEC. 2
OF THE ACT EXTENDING THE WHEELER-HOWARD ACT TO ALASKA.  NO IMPLICATIONS
CAN BE DRAWN FROM THE BROAD AND CLEAR LANGUAGE OF THE WHITE ACT THAT
RESERVATION WATERS, HOWEVER VALUABLE FOR FISHING OR FISH PROPAGATION,
MUST BE LEFT UNPROTECTED FROM RUTHLESS EXPLOITATION. 

WHAT WE HAVE SAID HERETOFORE IN THIS OPINION AS TO THE IMPORTANCE OF
FISHERIES AND THEIR CONSERVATION TO ALASKA NATIVES WITH REFERENCE TO
THE KARLUK RIVER AREA IN PARTICULAR NEED NOT BE REPEATED.  THE QUOTED
"(C) MAKE SUCH REGULATIONS AS TO TIME, MEANS, METHODS, AND EXTENT OF
FISHING AS HE MAY DEEM ADVISABLE."  THEN FOLLOWS THE PROVISO THAT EVERY
SUCH REGULATION SHALL BE OF GENERAL APPLICATION AND THAT NO EXCLUSIVE
OR SEVERAL RIGHT OF FISHING SHALL BE GRANTED THEREIN.  THIS SECTION WAS
ENACTED TO CORRECT ALLEGED ABUSES THAT AROSE IN THE ADMINISTRATION OF
THE ACT "FOR THE PROTECTION AND REGULATION OF THE FISHERIES OF ALASKA,"
APPROVED JUNE 26, 1906, 34 STAT. 478.  BY SEC. 6 OF THE EARLIER ACT,
STREAMS OR LAKES COULD BE SET ASIDE AS PERMANENT PRESERVES BUT NOT
COASTAL WATERS.  ALTHOUGH THE 1906 ACT DID NOT DELEGATE REGULATORY
POWERS IN THE AMPLITUDE OF THE WHITE ACT, FISHING RESERVATIONS IN
TERRITORIAL WATERS WERE CREATED BY EXECUTIVE ORDER AND REGULATIONS WERE
ISSUED THEREUNDER.  FN47  THE POLICY BEHIND THESE REGULATIONS AND THEIR
ADMINISTRATION WAS TO RESTRICT THE RIGHT TO FISH COMMERCIALLY TO THOSE
WHO HAD FORMERLY FISHED IN THESE AREAS.  SEE FISHERIES SERVICE BULLETIN
NO. 92, JAN. 2, 1923.  CONGRESS DID NOT PROPOSE THAT THESE RICH FISHING
GROUNDS SHOULD BE MONOPOLIZED BY THIS DEFINED GROUP.  THE LEGISLATIVE
HISTORY OF THE WHITE ACT ONLY EMPHASIZES WHAT THE STATUTE CLEARLY SAYS,
THAT IS, NO SPECIAL PRIVILEGES IN ALASKAN FISHING PRESERVES.  FN48  THE
ENFORCEMENT PROVISIONS OF THE WHITE ACT GAVE STERN WARNING TO
PROSPECTIVE VIOLATORS.  FN49    FOR THE CONSERVATION OF THE FISHERIES,
IT WAS RECOGNIZED THAT ADMINISTRATIVE FLEXIBILITY MUST BE PERMITTED. 
"THE WATERS OF ALASKA ARE SO VAST AND THE LOCAL CONDITIONS SO VARIED
THAT IT IS UTTERLY IMPOSSIBLE TO PRESCRIBE BY LEGISLATION IN DETAIL THE
PROVISIONS NECESSARY TO MEET EACH SITUATION.  TO ATTEMPT TO DO SO WOULD
BE TO DEFEAT THE PURPOSES SOUGHT.  THIS CAN BE DONE BY PLACING BROAD
POWERS AND A WIDE DISCRETION IN THE ADMINISTRATIVE BRANCH HAVING CHARGE
OF THE SUBJECT."  S. REP. NO. 449 ON H.R. 8143(WHICH BECAME THE WHITE
ACT), 68TH CONG., 1ST SESS., P. 2.  COMPARE DOW V. ICKES, 74 APP. D.C.
319, 323, 123 F.2D 909, 913. 

ALTHOUGH SEC. 8 OF THE WHITE ACT  FN50  LEFT A POWER IN THE
TERRITORIAL LEGISLATURE OF ALASKA TO IMPOSE TAXES OR LICENSES FOR
FISHING, WE DO NOT READ SEC. 8 AS LIMITING THE POWER TO LICENSE FISHING
TO THE TERRITORIAL LEGISLATURE.  THE SECTION DOES NOT MAKE THE
LEGISLATIVE POWER EXCLUSIVE.  SINCE SEC. 1 OF THE WHITE ACT NOT ONLY
AUTHORIZES THE ESTABLISHMENT OF FISHING PRESERVES BUT ALSO REQUIRES
THAT THE FISHING BE CARRIED ON "IN CONFORMITY WITH SUCH RULES AND
REGULATIONS AS THE SECRETARY PRESCRIBES UNDER THE AUTHORITY HEREIN
GIVEN,"  FN51  WE ARE OF THE OPINION THAT LICENSES FOR FISHING MAY BE
REQUIRED IN AREAS REGULATED UNDER THE WHITE ACT.  WE THINK, HOWEVER,
THESE LICENSES MAY BE ONLY REGULATORY IN CHARACTER AND, WITHIN THE
DISCRETION OF THE SECRETARY, MUST HAVE THEIR COST FIXED SO AS NOT TO
EXCEED THE ESTIMATED APPROXIMATE COST OF REASONABLE POLICING OF THE
AREA.  WE DO NOT READ THE WHITE ACT AS EMPOWERING THE SECRETARY TO
RAISE GENERAL FUNDS FOR NATIVE WELFARE OR GENERAL CONSERVATION PURPOSES
FROM WHITE ACT PRESERVES. 

AS SEC. 208.23(R) WITH ITS EXCEPTION IN FAVOR OF THE NATIVES IN
POSSESSION OF KARLUK RESERVATION AND THEIR LICENSEES IS BASED UPON SEC.
1 OF THE WHITE ACT, WE THINK IT CLEAR THAT ITS PROVISO, "THAT NO
EXCLUSIVE OR SEVERAL RIGHT OF FISHERY SHALL BE GRANTED THEREIN,"
APPLIES TO COMMERCIAL FISHING BY NATIVES EQUALLY WITH FISHING
COMPANIES, NONRESIDENTS OF ALASKA OR OTHER AMERICAN CITIZENS, AND SO
APPLIES WHETHER THOSE NATIVES ARE OR ARE NOT RESIDENTS ON A
RESERVATION.  WE FIND NOTHING IN THE WHITE ACT THAT AUTHORIZES THE
SECRETARY OF THE INTERIOR TO GRANT RESERVATION OCCUPANTS THE PRIVILEGE
OF EXCLUSIVE COMMERCIAL FISHING RIGHTS.  IT SEEMS ALSO CLEAR TO US THAT
THE ADOPTION OF A CORPORATE CHARTER AND A CONSTITUTION BY THE NATIVE
VILLAGE OF KARLUK UNDER SECS. 16 AND 17 OF THE WHEELER-HOWARD ACT,
DISCUSSED AT PP. 106-107, SUPRA, CAN ADD NOTHING TO THE POWER OF THE
SECRETARY UNDER THE WHITE ACT.  "EXCLUSIVE," AS USED IN SEC. 1 OF THE
WHITE ACT, FORBIDS NOT ONLY A GRANT TO A SINGLE PERSON OR CORPORATION
BUT TO ANY SPECIAL GROUP OR NUMBER OF PEOPLE.  THE LEGISLATIVE HISTORY
SET OUT ABOVE SHOWS THIS.  THE OFFENDING REGULATIONS WHICH BROUGHT
ABOUT THE ENACTMENT OF THE PROVISO IN SEC. 1 OF THE WHITE ACT WERE
ADMINISTERED SO AS TO LIMIT FISHING TO THOSE WHO HAD BEEN USING THE
FISHERIES BEFORE THE REGULATIONS.  THE WHITE ACT FISHING PRESERVES WERE
NOT INTENDED TO FURNISH A MONOPOLY TO A FAVORED FEW.  WHATEVER MAY BE
THE POWERS OF THE DEPARTMENT OF THE INTERIOR OR THE NATIVES AS TO
REGULATING THE ENTRANCE OF PERSONS OTHER THAN NATIVES IN POSSESSION OF
KARLUK RESERVATION INTO OR ON THE AREA OF LAND AND WATER IN THAT
RESERVATION,  FN52  THEY ARE NOT BROAD ENOUGH TO ALLOW THE USE OF THE
WHITE ACT SANCTIONS TO PROTECT THE RESERVATION AGAINST TRESPASS.  WHITE
ACT SANCTIONS ARE FOR WHITE ACT VIOLATIONS.  THE DEPARTMENT OF THE
INTERIOR BY SEC. 208.23(R) HAS DECIDED UPON THE CONSERVATION OF
FISHERIES IN THE DESCRIBED WATERS OF THE KARLUK RESERVATION IN
ACCORDANCE WITH THE WHITE ACT, WITH AN EXCEPTION IN FAVOR OF THE
NATIVES THAT SEEMS TO REST ON THE FACT THAT THE NATIVES ARE ON A
RESERVATION THAT INCLUDES THE WHITE ACT CONSERVATION AREA.  THIS CANNOT
BE DONE.  THE WELFARE OF THE 57 ELECTORS OF KARLUK RESERVATION AND
THEIR FAMILIES IS IMPORTANT.  THE SECRETARY OF THE INTERIOR, HOWEVER,
CANNOT GIVE THEM SUCH PREFERENCES AS ARE HERE GIVEN UNDER THE AUTHORITY
OF THE WHITE ACT.  OTHER AMERICAN CITIZENS ARE EQUALLY ENTITLED TO THE
BENEFITS FROM WHITE ACT PRESERVES.  FN53  WE HOLD THAT THE REGULATION
SEC. 208.23(R) IS VOID AS A WHOLE BECAUSE IT VIOLATES THE PROVISO OF
THE WHITE ACT.  SEE P. 93. 

                                 IV. 

THERE ARE PROBLEMS CONNECTED WITH THE ADMINISTRATION OF THE KARLUK
RESERVATION AND THE PROTECTION OF THE FISHING PRESERVES THAT HAVE NOT
BEEN DETERMINED BY THE COURTS OR THE DEPARTMENT OF THE INTERIOR.  OUR
HOLDING THAT COASTAL WATERS MAY BE INCLUDED IN THE RESERVATION WATERS
AND THAT THE WHITE ACT CANNOT BE USED TO CREATE A MONOPOLY IN THE
INDIANS ESTABLISHES A DIFFERENT BASIS FOR ADMINISTRATIVE AND JUDICIAL
CONCLUSIONS.  THE 1945 ORDINANCE MUST BE CONSIDERED; IT APPEARS IN THE
MARGIN.  FN54  IT STATES THAT PUBLIC LAND ORDER 128 RESTRICTS THE RIGHT
TO FISH COMMERCIALLY IN THE RESERVATION WATERS TO KARLUK INHABITANTS. 
THIS ORDINANCE ANTEDATES THE REGULATION.  SEE P. 91, SUPRA.  IT
EVIDENTLY IS BASED ON THE THEORY THAT THE CREATION OF THE RESERVATION
GAVE EXCLUSIVE FISHING RIGHTS TO THE NATIVES IN POSSESSION.  PERMITS
REQUIRED THE APPROVAL OF THE SECRETARY OF THE INTERIOR OR HIS
AUTHORIZED REPRESENTATIVE.  FN55  AN EXAMPLE OF THE PERMIT IS PRINTED
BELOW.  FN56  WE KNOW NOTHING FROM THE RECORD OF THE REASONS FOR THE $2
FEE FOR RESIDENTS OR THE $40 FEE FOR NONRESIDENTS OR THEIR RELATION TO
THE COST OF POLICING THE AREA.  SEE HAAVIK V. ALASKA PACKERS
ASSOCIATION, 263 U.S. 510.  SO FAR AS APPEARS, AFTER ONCE APPROVING AN
ORDINANCE THE DEPARTMENT'S ONLY DIRECT CONTROL OVER THE ORDINANCE IS BY
APPROVAL OR DISAPPROVAL OF AMENDMENTS.  FN57 

THIS IS AN EQUITABLE PROCEEDING IN WHICH THE RESPONDENTS SEEK
PROTECTION AGAINST UNLAWFUL ACTION BY PETITIONER, THE REGIONAL DIRECTOR
OF THE FISH AND WILDLIFE SERVICE OF THE DEPARTMENT OF THE INTERIOR. 
THE INTERESTS OF RESPONDENTS, THE INDIANS OF KARLUK RESERVATION, AND
THE EFFORTS OF THE DEPARTMENT OF THE INTERIOR TO ADMINISTER ITS
RESPONSIBILITIES FAIRLY TO FISHERMEN AND INDIANS ARE INVOLVED.  FN58
THESE ARE QUESTIONS OF PUBLIC POLICY WHICH EQUITY IS ALERT TO PROTECT. 
FN59 THIS COURT IS FAR REMOVED FROM THE LOCALITY AND CANNOT HAVE THE
UNDERSTANDING OF THE PRACTICAL DIFFICULTIES INVOLVED IN THE CONFLICTS
OF INTEREST THAT IS POSSESSED BY THE DISTRICT COURT.  THEREFORE WE
THINK IT APPROPRIATE FOR US TO REFRAIN FROM NOW ENTERING A FINAL ORDER
DISPOSING DEFINITIVELY OF THE CONTROVERSY.  WITH OUR CONCLUSION ON THE
LAW AS TO THE ESTABLISHMENT OF THE RESERVATION AND THE INVALIDITY OF
THE REGULATION BEFORE THEM, THE DEPARTMENT AND THE PARTIES SHOULD HAVE
A REASONABLE TIME, SUBJECT TO THE ACTION OF THE DISTRICT COURT ON THE
NEW PROPOSALS, TO ADJUST THEIR AFFAIRS SO AS TO COMPLY WITH OUR
DETERMINATIONS. 

WE THEREFORE VACATE THE DECREES OF THE DISTRICT COURT AND THE COURT
OF APPEALS AND REMAND THIS PROCEEDING TO THE DISTRICT COURT WITH
DIRECTIONS TO ALLOW THIRTY DAYS FROM THE ISSUANCE OF OUR MANDATE FOR
THE SECRETARY OF THE INTERIOR TO GIVE CONSIDERATION TO THE EFFECT OF
OUR DECISION.  UNLESS STEPS ARE TAKEN IN THIS PROCEEDING THE DISTRICT
COURT, ON THE EXPIRATION OF THIRTY DAYS, SHALL ENTER A DECREE ENJOINING
THE DEFENDANT HYNES AND ALL ACTING IN CONCERT WITH HIM, SUBSTANTIALLY
AS ORDERED IN THE PERMANENT INJUNCTION ENTERED NOVEMBER 6, 1946.  FN60
IF TIMELY STEPS ARE TAKEN, THE DISTRICT COURT WILL, OF COURSE, BE FREE
TO ENTER SUCH ORDERS AS IT MAY DEEM PROPER AND NOT INCONSISTENT WITH
THE PRESENT DECISION.  PENDING THE ENTRY OF FURTHER ORDERS BY THE
DISTRICT COURT, THE PRELIMINARY INJUNCTION ENTERED JULY 18, 1946, SHALL
APPLY TO PROTECT THE RIGHTS OF THE RESPONDENTS.  IT IS SO ORDERED. 

FN1  8 FED. REG. 8557:

                                "ALASKA 

"MODIFICATION OF EXECUTIVE ORDER DESIGNATING LANDS AS INDIAN
RESERVATION 

"BY VIRTUE OF THE AUTHORITY CONTAINED IN THE ACT OF JUNE 25, 1910, C.
421, 36 STAT. 847, AS AMENDED BY THE ACT OF AUGUST 24, 1912, C. 369, 37
STAT. 497(U.S.C., TITLE 43, SECS. 141-143), AND THE ACT OF MAY 1, 1936,
C. 254, 49 STAT. 1250(U.S.C., TITLE 48, SEC. 358A), AND PURSUANT TO
EXECUTIVE ORDER NO. 9146 OF APRIL 24, 1942:  IT IS ORDERED, AS
FOLLOWS: 

"1.  EXECUTIVE ORDER NO. 8344 OF FEBRUARY 10, 1940, WITHDRAWING
KODIAK AND OTHER ISLANDS, ALASKA, FOR CLASSIFICATION AND IN AID OF
LEGISLATION, IS HEREBY MODIFIED TO THE EXTENT NECESSARY TO PERMIT THE
DESIGNATION AS AN INDIAN RESERVATION OF THE FOLLOWING-DESCRIBED AREA: 

"BEGINNING AT THE END OF A POINT OF LAND ON THE SHORE OF SHELIKOF
STRAIT ON KODIAK ISLAND, SAID POINT BEING ABOUT ONE AND ONE-QUARTER
MILES EAST OF ROCKY POINT AND IN APPROXIMATE LATITUDE 57 DEGREE 39'40"
N., LONGITUDE 154 DEGREE 12'20" W.; 

"THENCE SOUTH APPROXIMATELY EIGHT MILES TO LATITUDE 57 DEGREE 32'30"
N.; 

"THENCE WEST APPROXIMATELY TWELVE AND ONE-HALF MILES TO THE
CONFLUENCE OF THE NORTH SHORE OF STURGEON RIVER WITH THE EAST SHORE OF
SHELIKOF STRAIT; 

"THENCE NORTHEASTERLY FOLLOWING THE EASTERLY SHORE OF SHELIKOF STRAIT
TO THE PLACE OF BEGINNING, CONTAINING APPROXIMATELY 35,200 ACRES. 

"2.  THE AREA DESCRIBED ABOVE AND THE WATERS ADJACENT THERETO
EXTENDING 3,000 FEET FROM THE SHORE LINE AT MEAN LOW TIDE, ARE HEREBY
DESIGNATED AS AN INDIAN RESERVATION FOR THE USE AND BENEFIT OF THE
NATIVE INHABITANTS OF THE NATIVE VILLAGE OF KARLUK, ALASKA, AND
VICINITY: PROVIDED, THAT SUCH DESIGNATION SHALL BE EFFECTIVE ONLY UPON
ITS APPROVAL BY THE VOTE OF THE INDIAN AND ESKIMO RESIDENTS OF THE AREA
INVOLVED IN ACCORDANCE WITH SECTION 2 OF THE ACT OF MAY 1, 1936, SUPRA:
AND PROVIDED FURTHER, THAT NOTHING HEREIN CONTAINED SHALL AFFECT ANY
VALID EXISTING CLAIM OR RIGHT UNDER THE LAWS OF THE UNITED STATES
WITHIN THE PURVIEW OF THAT SECTION." 

FN2  THE FIRST SECTION READS AS FOLLOWS, 36 STAT. 847: 

"THAT THE PRESIDENT MAY, AT ANY TIME IN HIS DISCRETION, TEMPORARILY
WITHDRAW FROM SETTLEMENT, LOCATION, SALE, OR ENTRY ANY OF THE PUBLIC
LANDS OF THE UNITED STATES INCLUDING THE DISTRICT OF ALASKA AND RESERVE
THE SAME FOR WATER-POWER SITES, IRRIGATION, CLASSIFICATION OF LANDS, OR
OTHER PUBLIC PURPOSES TO BE SPECIFIED IN THE ORDERS OF WITHDRAWALS, AND
SUCH WITHDRAWALS OR RESERVATIONS SHALL REMAIN IN FORCE UNTIL REVOKED BY
HIM OR BY AN ACT OF CONGRESS." 

THERE IS A SECOND SECTION DESIGNED TO KEEP THE RESERVATIONS FREE FOR
MINERAL EXPLORATION AND UTILIZATION. 

FN3  THERE IS AN AMENDMENT, IMMATERIAL HERE, SEE 44 STAT. 752. 

FN4  UNDER REORGANIZATION PLAN NO. II THE AUTHORITY OF THE DEPARTMENT
OF COMMERCE OVER THE ADMINISTRATION OF THE WHITE ACT WAS TRANSFERRED TO
THE DEPARTMENT OF THE INTERIOR, EFFECTIVE JULY 1, 1939.  53 STAT. 1431,
SEC. 4(E). 

FN5  THE RIVER ITSELF AND ALL WATERS WITHIN 100 YARDS OF ITS MOUTH
ARE CLOSED TO ALL COMMERCIAL SALMON FISHING.  50 C.F.R., 1946 SUPP.,
SEC. 208.23(D). 

FN6  BANCROFT, HISTORY OF ALASKA, 1730-1885, P. 228, N. 12. 

FN7  ID., P. 743. 

FN8  H.R. MISC. DOC. NO. 211, 51ST CONG., 1ST SESS., REPORT ON THE
SALMON AND SALMON RIVERS OF ALASKA, P. 20: 

"THE NUMBER OF SALMON ACTUALLY CAUGHT IN KARLUK BAY, NEAR THE RIVER
MOUTH AND IN THE LOWER PORTION OF THE RIVER, IS SO LARGE AS TO MAKE A
TRUE STATEMENT CONCERNING THEM SEEM INCREDIBLE.  IN 1888 THE CANNERIES
PUT UP OVER 200,000 CASES, AVERAGING ABOUT 13 RED SALMON TO THE CASE,
OR MORE THAN 2,500,000 FISH.  IN 1889 THE NUMBER OF FISH PUT UP WAS
STILL LARGER, REACHING PROBABLY 250,000 CASES, CONTAINING MORE THAN
3,000,000 SALMON.  AS THE NUMBER OF FISH ARRIVING AT KARLUK BAY FOR A
LONG PERIOD OF YEARS HAS BEEN KNOWN TO BE FAR GREATER THAN IN ANY OF
THE OTHER BAYS OF SOUTHERN ALASKA, IT IS PROBABLE THAT MOST OF THESE
SALMON WERE PRESENT AT KARLUK FOR THE PURPOSE OF ASCENDING THE RIVER TO
SPAWN.  NOW THE NUMBER OF SPAWNING FISH SEEN IN THE RIVER, THE LAKES,
AND THEIR CONNECTING RIVERS WAS COMPARATIVELY VERY SMALL, INDEED OUT OF
ALL PROPORTION TO THE NUMBER TAKEN ON THE BEACH." 

FN9  THE HIGHEST REPORTED BY THE STATISTICAL REVIEW OF THE ALASKA
SALMON FISHERIES, JUNE 13, 1930, BUREAU OF FISHERIES BULLETIN, VOL.
XLVI, P. 666, WAS NEARLY 4,000,000 FISH IN 1901 AND THE LOWEST ABOUT
400,000 IN 1927.  THE REPORT SAID: 

"MANY INVESTIGATIONS OF THE KARLUK RED-SALMON FISHERY HAVE BEEN MADE,
MUCH HAS BEEN WRITTEN ABOUT IT, COMMERCIAL INTERESTS HAVE BATTLED FOR
EXCLUSIVE CONTROL AND DOMINATION OF IT, AND DIRE PROPHECIES HAVE BEEN
HEARD CONCERNING ITS ULTIMATE DESTRUCTION.  BECAUSE OF THESE THINGS,
KARLUK HAS UNDOUBTEDLY BEEN GIVEN MORE CLOSE ATTENTION THAN ANY OTHER
FISHERY IN ALASKA.  ...  " 

FN10  UNCHALLENGED FIGURES BY PLAINTIFFS SHOW LARGE CATCHES.  A TABLE
FROM THE LARGEST OPERATOR IS PRINTED FOR ILLUSTRATION. 

"THE TOTAL CATCH OF FISH TAKEN WITHIN THE AREA NOW INCLUDED IN THE
KARLUK INDIAN RESERVATION DURING THE YEARS SPECIFIED  ...  :

             COHO    CHUM       PINK    KING      RED       TOTAL 

1941.......    1058      632       9893     134    59958      71675 

1942.......     397    14556     225323      57    58042     298375 

1943.......      83      825       2380     161    60273      63722 

1944.......      33     5803     219300      69    63535     288740 
1945.......       4      150        554      84    50907  51699 

1946.......     137     8660    1024596      44    25381    1058818" 

FN11  "MINUTES OF MEETING 

     .      .         .         .         . 

"A MEETING WAS CALLED BY THE PRESIDENT AND THE SAME EVENING WITH MR.
PETERS MR. WATROUS OF JUNEAU AND MR. LERAAS PRESENT.  FOLLOWING
DISCUSSION AND ACTION: 

"1.  THE PROBLEMS OF SETTING ASIDE AN AREA FOR BEACH SEINING WERE
DISCUSSED.  IT WAS AGREED THAT 1000 YD. FROM THE MOUTH OF THE RIVER UP
THE SPIT AND FROM THE MOUTH OF THE RIVER TO JULIA FORT POINT
APPROXIMATELY 500 YD. ON THE IMPROVEMENT SIDE, PLACING MARKERS OR BUOYS
500 YD. OUT FROM MEAN LOW WATER MARK BE THE RESTRICTED AREA FOR KARLUK
BEACH SEINING ONLY.  PURSE SEINING COULD BE DONE OUTSIDE THIS
RESTRICTED AREA THIS YEAR OR UNTIL FURTHER ACTION BY THE COUNCIL." 

FN12  SEE TERRACE V. THOMPSON, 263 U.S. 197, 214; PETROLEUM
EXPLORATION, INC. V. PUBLIC SERVICE COMMISSION, 304 U.S. 209, 217-19. 

FN13  WATSON V. BUCK, 313 U.S. 387; EX PARTE SAWYER, 124 U.S. 200. 

FN14  PARKER V. BROWN, 317 U.S. 341; PACKARD V. BANTON, 264 U.S. 140;
TRUAX V. RAICH, 239 U.S. 33; PHILADELPHIA CO. V. STIMSON, 223 U.S. 605,
620, SECOND.  CF. WATSON V. BUCK, 313 U.S. 387, 400; SPIELMAN MOTOR
SALES CO. V. DODGE, 295 U.S. 89; STAINBACK V. MO HOCK KE LOK PO, 336
U.S. 368. 

FN15  43 STAT. 466, 48 U.S.C. SEC. 226. 

FN16  PARKER V. BROWN, SUPRA, 349.  SEIZURE OF A FISHERMAN'S BOAT IS
A DRASTIC SANCTION.  SEE HEARINGS BEFORE THE SUBCOMMITTEE ON ALASKAN
FISHERIES OF THE HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES, 76TH
CONG., 1ST SESS., PP. 45-47. 

FN17  67 F.SUPP.  43; 165 F.2D 323. 

FN18  THOMPSON V. CONSOLIDATED GAS CO., 300 U.S. 55, 69; PACIFIC
STATES CO. V. WHITE, 296 U.S. 176, 185; WAMPLER V. LECOMPTE, 282 U.S.
172, 175; MARTIN V. MOTT, 12 WHEAT.  19, 32. 

FN19  EXECUTIVE ORDER 9146, 1 C.F.R., CUM. SUPP., P. 1149: 

"BY VIRTUE OF THE AUTHORITY VESTED IN ME BY THE ACT OF JUNE 25, 1910,
C. 421, 36 STAT. 847, AND AS PRESIDENT OF THE UNITED STATES, I HEREBY
AUTHORIZE THE SECRETARY OF THE INTERIOR TO SIGN ALL ORDERS WITHDRAWING
OR RESERVING PUBLIC LANDS OF THE UNITED STATES, AND ALL ORDER REVOKING
OR MODIFYING SUCH ORDERS:  ...  " 

EXECUTIVE ORDER 8344, 1 C.F.R., CUM. SUPP., 618, REFERRED TO IN
PUBLIC LAND ORDER 128, TEMPORARILY WITHDREW KODIAK ISLAND FROM
SETTLEMENT, LOCATION, SALE OR ENTRY FOR CLASSIFICATION. 

FN20  SO FAR AS MATERIAL THAT ACT IS SET OUT IN NOTE 2, SUPRA. 

FN21  IT IS UNNECESSARY TO APPRAISE THE EFFECT OF SUCH RESTORATION. 
TRIBAL OWNERSHIP MAY VARY FROM AN UNRECOGNIZED INDIAN TITLE, SEE
NORTHWESTERN BANDS OF SHOSHONE INDIANS V. UNITED STATES, 324 U.S. 335,
338, 340, TO LAND SO SET APART TO AN INDIAN TRIBE BY DEFINITIVE TREATY
AS TO REQUIRE COMPENSATION TO THE TRIBE, IF THE UNITED STATES
THEREAFTER APPROPRIATED LANDS WITHIN THE AREA.  SEE SHOSHONE TRIBE V.
UNITED STATES, 299 U.S. 476, 486; 44 STAT. 1349.  THE EFFECT OF
RESTORATION UNDER THE WHEELER-HOWARD ACT WILL DEPEND UPON THE
PROVISIONS OF LAW UNDER WHICH THE SEPARATE RESERVATIONS EXIST.  COMPARE
COHEN, HANDBOOK OF FEDERAL INDIAN LAW, C. 5, SEC. 5A, P. 94. 

FN22  POSSIBLE CLAIMS UNDER THE INDIAN CLAIMS COMMISSION ACT OF
AUGUST 13, 1946, ARE NOT COVERED BY THIS STATEMENT.  SEE 60 STAT. 1049,
1050, SEC. 2(5).  IT REFERS TO CLAIMS "BASED UPON FAIR AND HONORABLE
DEALINGS THAT ARE NOT RECOGNIZED BY ANY EXISTING RULE OF LAW OR
EQUITY.  NO CLAIM ACCRUING AFTER THE DATE OF THE APPROVAL OF THIS ACT
SHALL BE CONSIDERED BY THE COMMISSION." 

FN23  UNITED STATES V. SHOSHONE TRIBE, 304 U.S. 111, 116; SHOSHONE
TRIBE V. UNITED STATES, 299 U.S. 476, 485, 486, 492, FIRST; UNITED
STATES V. CREEK NATION, 295 U.S. 103, 109; UNITED STATES V. HOLT STATE
BANK, 270 U.S. 49, 58; UTE INDIANS V. UNITED STATES, 330 U.S. 169, 176,
ET SEQ.; ARENAS V. UNITED STATES, 322 U.S. 419; OPINIONS ON REMAND,
UNITED STATES V. ARENAS, 158 F.2D 730; ARENAS V. UNITED STATES, 60
F.SUPP.  411. 

FN24  FOR EXAMPLE, IN THE ARENAS CASE, 322 U.S. 419, THE STATUTE
READ: 

"SEC. 5.  THAT UPON THE APPROVAL OF THE ALLOTMENTS PROVIDED FOR IN
THE PRECEDING SECTION BY THE SECRETARY OF THE INTERIOR HE SHALL CAUSE
PATENTS TO ISSUE THEREFOR IN THE NAME OF THE ALLOTTEES, WHICH SHALL BE
OF THE LEGAL EFFECT AND DECLARE THAT THE UNITED STATES DOES AND WILL
HOLD THE LAND THUS ALLOTTED FOR THE PERIOD OF TWENTY-FIVE YEARS, IN
TRUST FOR THE SOLE USE AND BENEFIT OF THE INDIAN TO WHOM SUCH ALLOTMENT
SHALL HAVE BEEN MADE, OR, IN CASE OF HIS DECEASE, OF HIS HEIRS
ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA, AND THAT AT THE
EXPIRATION OF SAID PERIOD THE UNITED STATES WILL CONVEY THE SAME BY
PATENT TO THE SAID INDIAN, OR HIS HEIRS AS AFORESAID, IN FEE,
DISCHARGED OF SAID TRUST AND FREE OF ALL CHARGE OR INCUMBRANCE
WHATSOEVER.  SOEVER. 

FN25  ONE GETS A SENSE OF ITS VALUE FROM THE CATCH OF A SINGLE
OPERATOR.  NOTE 10, SUPRA. 

FN26  WE UNDERSTAND, ALTHOUGH IT IS NOT A FACT OF WEIGHT, THAT THE
NUMBER INCLUDES BOTH MEN AND WOMEN OVER TWENTY-ONE.  49 STAT. 1251;
CONSTITUTION AND BY-LAWS OF THE NATIVE VILLAGE OF KARLUK, ALASKA,
OFFICIAL PUBLICATION, UNITED STATES DEPARTMENT OF THE INTERIOR, OFFICE
OF INDIAN AFFAIRS, GPO (1939); CONSTITUTION, ART. V, SEC. 1;
CERTIFICATE OF ADOPTION, P. 4; 48 STAT. 986-87, SECS. 13 AND 16. 

THE POPULATION OF KARLUK AROUND 1880 WAS 302.  REPORT ON THE
POPULATION, INDUSTRIES, AND RESOURCES OF ALASKA BY IVAN PETROFF, P. 29,
H.R. MISC. DOC. NO. 42, PT. 8, 47TH CONG., 2D SESS. IN 1920 IT WAS 99;
IN 1929 IT WAS 192; IN 1939 IT WAS 189.  16TH CENSUS OF THE UNITED
STATES (1940), POPULATION, VOL. 1, NUMBER OF INHABITANTS, P. 1193. 

FN27  IN THE ACT OF MAY 14, 1898, 30 STAT. 409, WHICH EXTENDED THE
HOMESTEAD LAND LAWS OF THE UNITED STATES TO ALASKA, IT WAS SPECIFICALLY
PROVIDED THAT "NO ENTRY SHALL BE ALLOWED EXTENDING MORE THAN EIGHTY
RODS ALONG THE SHORE OF ANY NAVIGABLE WATER, AND ALONG SUCH SHORE A
SPACE OF AT LEAST EIGHTY RODS SHALL BE RESERVED FROM ENTRY BETWEEN ALL
SUCH CLAIMS, AND THAT NOTHING HEREIN CONTAINED SHALL BE SO CONSTRUED AS
TO AUTHORIZE ENTRIES TO BE MADE, OR TITLE TO BE ACQUIRED, TO THE SHORE
OF ANY NAVIGABLE WATERS WITHIN SAID DISTRICT:  ...  " 

FN28  COMPARE THE STATUTE CREATING THE METLAKAHTLA RESERVATION, 26
STAT. 1101: 

"SEC. 15.  THAT UNTIL OTHERWISE PROVIDED BY LAW THE BODY OF LANDS
KNOWN AS ANNETTE ISLANDS, SITUATED IN ALEXANDER ARCHIPELAGO IN
SOUTHEASTERN ALASKA, ON THE NORTH SIDE OF DIXON'S ENTRANCE, BE, AND THE
SAME IS HEREBY, SET APART AS A RESERVATION FOR THE USE OF THE
METLAKAHTLA INDIANS, AND THOSE PEOPLE KNOWN AS METLAKAHTLANS WHO HAVE
RECENTLY EMIGRATED FROM BRITISH COLUMBIA TO ALASKA, AND SUCH OTHER
ALASKAN NATIVES AS MAY JOIN THEM, TO BE HELD AND USED BY THEM IN
COMMON, UNDER SUCH RULES AND REGULATIONS, AND SUBJECT TO SUCH
RESTRICTIONS, AS MAY (BE) PRESCRIBED FROM TIME TO TIME BY THE SECRETARY
OF THE INTERIOR."  SEE 34 STAT. 1411 AND 48 STAT. 667. 

SEE A DISCUSSION OF THE LIMITED POWER OF THE PRESIDENT TO CREATE EVEN
TEMPORARY RESERVATIONS FOR INDIAN IMMIGRANTS.  18 OP. ATTY. GEN. 557. 

WE HAVE CAREFULLY CONSIDERED THE OPINION IN MILLER V. UNITED STATES,
159 F.2D 997, WHERE IT IS HELD, P. 1001, THAT THE INDIAN RIGHT OF
OCCUPANCY OF ALASKA LANDS IS COMPENSABLE.  WITH ALL RESPECT TO THE
LEARNED JUDGES, FAMILIAR WITH ALASKA LAND LAWS, WE CANNOT EXPRESS
AGREEMENT WITH THAT CONCLUSION.  THE OPINION UPON WHICH THEY CHIEFLY
RELY, UNITED STATES V. ALCEA BAND OF TILLAMOOKS, 329 U.S. 40, IS NOT AN
AUTHORITY FOR THIS POSITION.  THAT OPINION DOES NOT HOLD THE INDIAN
RIGHT OF OCCUPANCY COMPENSABLE WITHOUT SPECIFIC LEGISLATIVE DIRECTION
TO MAKE PAYMENT.  SEE ALSO UNITED STATES V. 10.95 ACRES OF LAND IN
JUNEAU, 75 F.SUPP.  841. 

FN29  IN HEARINGS BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS, 73D
CONG., 2D SESS., ON S. 3645, THE BILL WHICH BECAME THE ACT OF JUNE 18,
1934, P. 247, THE FOLLOWING DISCUSSION TOOK PLACE AS TO THE MEANING OF
THESE WORDS: 

"SENATOR O'MAHONEY.  BUT WHAT YOU ARE SAYING HERE IS THAT THE
CONSTITUTION SHALL VEST IN SOME PERSON - WHAT?  THE FOLLOWING RIGHTS
AND POWERS.  AND THEN YOU UNDERTAKE TO ENUMERATE THOSE POWERS.  THE
FIRST ONE THAT YOU ENUMERATE IS THE RIGHT TO EMPLOY COUNSEL.  THE
SECOND ONE IS THE RIGHT TO PREVENT INDIVIDUALS FROM SELLING AND
DISPOSING OF THEIR PROPERTY.  THEN YOU COME TO A THIRD ONE AND IT IS TO
REPRESENT THE TRIBE, AND THAT SEEMS TO ME TO BE HANGING UP IN THE AIR. 

"THE CHAIRMAN.  THE SECOND ONE YOU STATED INCORRECTLY. 

"SENATOR O'MAHONEY.  HAVE I? 

"THE CHAIRMAN.  IT IS NOT TO PREVENT THEM FROM SELLING INDIVIDUAL
LANDS; IT IS TRIBAL LANDS. 

"SENATOR O'MAHONEY.  YES, THAT IS RIGHT; TRIBAL LANDS." 

FN30  H.R. REP. NO. 2244 ON H.R. 9866, 74TH CONG., 2D SESS.; S. REP.
NO. 1748 ON S. 4420, 74TH CONG., 2D SESS. 

FN31 "AN EVEN MORE IMPORTANT REASON FOR THE DESIGNATION OF
RESERVATIONS IN ALASKA IS THAT BY DOING SO THE UNITED STATES GOVERNMENT
WILL HAVE FULFILLED IN PART ITS MORAL AND LEGAL OBLIGATIONS IN THE
PROTECTION OF THE ECONOMIC RIGHTS OF THE ALASKA NATIVES.  IN AT LEAST
TWO ACTS OF CONGRESS THIS OBLIGATION IS SPECIFICALLY ACKNOWLEDGED.  THE
ACT APPROVED ON MAY 17, 1884(23 STAT. 26), CONTAINS THE FOLLOWING
LANGUAGE:  'PROVIDED, THAT THE INDIANS OR OTHER PERSONS IN SAID
DISTRICT SHALL NOT BE DISTURBED IN THE POSSESSION OF ANY LANDS ACTUALLY
IN THEIR USE OR OCCUPATION OR NOW CLAIMED BY THEM BUT THE TERMS UNDER
WHICH SUCH PERSONS MAY ACQUIRE TITLE TO SUCH LANDS IS RESERVED FOR
FUTURE LEGISLATION BY CONGRESS.' 

"THE ACT OF MARCH 3, 1891(26 STAT. 1100), CONTAINS SIMILAR LANGUAGE:
'THAT NONE OF THE PROVISIONS OF THE LAST TWO PRECEDING SECTIONS OF THIS
ACT SHALL BE SO CONSTRUED AS TO WARRANT THE SALE OF ANY LANDS BELONGING
TO THE UNITED STATES WHICH SHALL CONTAIN COAL OR THE PRECIOUS METALS,
OR ANY TOWNSITE, OR WHICH SHALL BE OCCUPIED BY THE UNITED STATES FOR
PUBLIC PURPOSES, OR WHICH SHALL BE RESERVED FOR SUCH PURPOSES, OR TO
WHICH THE NATIVES OF ALASKA HAVE PRIOR RIGHTS BY VIRTUE OF ACTUAL
OCCUPATION.'  LANDS WHICH SHOULD HAVE BEEN, BY VIRTUE OF THESE ACTS,
SEGREGATED FOR NATIVES OF ALASKA HAVE NOT BEEN SO SEGREGATED.  THE
PROVISIONS OF SECTION 2 OF H.R. 9866 WILL AID THE FEDERAL GOVERNMENT IN
RECTIFYING THIS CONDITION, AND IN PROTECTING THE INTERESTS OF THE
NATIVES IN THE FUTURE.  SECTION 2 OF THE BILL WHICH GIVES TO THE
SECRETARY OF THE INTERIOR POWER TO DESIGNATE CERTAIN LANDS AS INDIAN
RESERVATIONS IS, THEREFORE, A LOGICAL SEQUENCE OF THE LEGISLATIVE
HISTORY REGARDING INDIAN LANDS IN ALASKA AND PROVIDES A METHOD BY WHICH
THE FINANCIAL AID PROVISIONS OF THE INDIAN REORGANIZATION ACT MAY BE
EXTENDED TO THOSE INDIANS AND ESKIMOS OF ALASKA WHO OCCUPY ESTABLISHED
VILLAGES." 

FN32  THIS APPEARS FROM THE FOLLOWING EXCERPT FROM THE SECRETARY'S
LETTER: 

"INDIAN TRIBES DO NOT EXIST IN ALASKA IN THE SAME SENSE AS IN
CONTINENTAL UNITED STATES.  SECTION 19 OF THE INDIAN REORGANIZATION ACT
DEFINES THE WORD 'TRIBE' AS REFERRING TO 'ANY INDIAN TRIBE, ORGANIZED
BAND, PUEBLO, OR THE INDIANS RESIDING ON ONE RESERVATION.'  WITH A FEW
EXCEPTIONS THE LANDS OCCUPIED BY NATIVES OF ALASKA HAVE NOT BEEN
DESIGNATED AS RESERVATIONS.  IN ORDER, THEREFORE, TO DEFINE AN ALASKAN
TRIBE IT IS NECESSARY TO IDENTIFY IT WITH THE LAND IT OCCUPIES AND IN
TERMS OF THE LANGUAGE OF THE ACT, 'RESERVATION.'  IN ADDITION, IF
NATIVE COMMUNITIES OF ALASKA ARE TO SET UP SYSTEMS OF LOCAL GOVERNMENT,
IT WILL BE NECESSARY TO STIPULATE THE GEOGRAPHICAL LIMITS OF THEIR
JURISDICTIONS.  RESERVATIONS SET UP BY THE SECRETARY OF THE INTERIOR
WILL ACCOMPLISH THIS."  THIS, WITH THE PROVISO OF THE FIRST SECTION,
WAS DEEMED SUFFICIENT TO ENABLE THE LANDS TO BE IDENTIFIED AND TO
PERMIT THE WHEELER-HOWARD BENEFITS TO BE AVAILABLE TO THE ALASKA
NATIVES. 

FN33  36 STAT. 847, SEC. 2. 

FN34  TREATY WITH RUSSIA, PROCLAIMED JUNE 20, 1867, 15 STAT. 539, 541
542: 

ART. II.  "IN THE CESSION OF TERRITORY AND DOMINION MADE BY THE
PRECEDING ARTICLE ARE INCLUDED THE RIGHT OF PROPERTY IN ALL PUBLIC LOTS
AND SQUARES, VACANT LANDS, AND ALL PUBLIC BUILDINGS, FORTIFICATIONS,
BARRACKS, AND OTHER EDIFICES WHICH ARE NOT PRIVATE INDIVIDUAL
PROPERTY.  ...  " 

ART. III.  "THE INHABITANTS OF THE CEDED TERRITORY, ACCORDING TO
THEIR CHOICE, RESERVING THEIR NATURAL ALLEGIANCE, MAY RETURN TO RUSSIA
WITHIN THREE YEARS; BUT IF THEY SHOULD PREFER TO REMAIN IN THE CEDED
TERRITORY, THEY, WITH THE EXCEPTION OF UNCIVILIZED NATIVE TRIBES, SHALL
BE ADMITTED TO THE ENJOYMENT OF ALL THE RIGHTS, ADVANTAGES, AND
IMMUNITIES OF CITIZENS OF THE UNITED STATES, AND SHALL BE MAINTAINED
AND PROTECTED IN THE FREE ENJOYMENT OF THEIR LIBERTY, PROPERTY, AND
RELIGION.  THE UNCIVILIZED TRIBES WILL BE SUBJECT TO SUCH LAWS AND
REGULATIONS AS THE UNITED STATES MAY, FROM TIME TO TIME, ADOPT IN
REGARD TO ABORIGINAL TRIBES OF THAT COUNTRY." 

FN35  ALASKA PACIFIC FISHERIES V. UNITED STATES, 248 U.S. 78, 87;
SHIVELY V. BOWLBY, 152 U.S. 1, 47, AND CASES CITED; MANN V. TACOMA LAND
CO., 153 U.S. 273, 283.  SEE ALSO TULEE V. WASHINGTON, 315 U.S. 681. 
IN KNIGHT V. U.S. LAND ASSOCIATION, 142 U.S. 161, THE COURT SAID, P.
183:  "UPON THE ACQUISITION OF THE TERRITORY FROM MEXICO THE UNITED
STATES ACQUIRED THE TITLE TO TIDE LANDS EQUALLY WITH THE TITLE TO
UPLAND; BUT WITH RESPECT TO THE FORMER THEY HELD IT ONLY IN TRUST FOR
THE FUTURE STATES THAT MIGHT BE ERECTED OUT OF SUCH TERRITORY."  IN
ALASKA PACIFIC FISHERIES V. UNITED STATES, SUPRA, THE STATEMENT IS
MADE, P. 87, "THAT CONGRESS HAD POWER TO MAKE THE RESERVATION INCLUSIVE
OF THE ADJACENT WATERS AND SUBMERGED LAND AS WELL AS THE UPLAND NEEDS
LITTLE MORE THAN STATEMENT.  ALL WERE THE PROPERTY OF THE UNITED STATES
AND WITHIN A DISTRICT WHERE THE ENTIRE DOMINION AND SOVEREIGNTY RESTED
IN THE UNITED STATES AND OVER WHICH CONGRESS HAD COMPLETE LEGISLATIVE
AUTHORITY."  COMPARE ALSO BORAX, LTD. V. LOS ANGELES, 296 U.S. 10, 15. 
FN36  23 STAT. 27: 

"SEC. 12.  THAT THE SECRETARY OF THE INTERIOR SHALL SELECT TWO OF THE
OFFICERS TO BE APPOINTED UNDER THIS ACT, WHO, TOGETHER WITH THE
GOVERNOR, SHALL CONSTITUTE A COMMISSION TO EXAMINE INTO AND REPORT UPON
THE CONDITION OF THE INDIANS RESIDING IN SAID TERRITORY, WHAT LANDS, IF
ANY, SHOULD BE RESERVED FOR THEIR USE, WHAT PROVISION SHALL BE MADE FOR
THEIR EDUCATION WHAT RIGHTS BY OCCUPATION OF SETTLERS SHOULD BE
RECOGNIZED, AND ALL OTHER FACTS THAT MAY BE NECESSARY TO ENABLE
CONGRESS TO DETERMINE WHAT LIMITATIONS OR CONDITIONS SHOULD BE IMPOSED
WHEN THE LAND LAWS OF THE UNITED STATES SHALL BE EXTENDED TO SAID
DISTRICT; AND TO DEFRAY THE EXPENSES OF SAID COMMISSION THE SUM OF TWO
THOUSAND DOLLARS IS HEREBY APPROPRIATED OUT OF ANY MONEYS IN THE
TREASURY NOT OTHERWISE APPROPRIATED." 

FN37  "THE GENERAL LAND LAWS OF THE UNITED STATES SHOULD BE EXTENDED
OVER THE TERRITORY AS EARLY AS POSSIBLE.  THE NATIVES CLAIM ONLY THE
LAND ON WHICH THEIR HOUSES ARE BUILT AND SOME GARDEN PATCHES NEAR THEIR
VILLAGES; THEY ASK OR EXPECT NOTHING MORE.  A DEED FOR THEIR LOTS IN
SEVERALTY WOULD BE A VERY HIGHLY PRIZED DOCUMENT BY THEM.  THE
FISHERIES OCCUPIED BY THEM BEFORE THE ADVENT OF THE WHITES SHOULD ALSO
BE SECURED TO THEM AGAINST ENCROACHMENT.  THEY ASK ONLY THE SAME RIGHTS
AND PROTECTION GIVEN THE WHITE MAN." 

FN38  "NOW, THEREFORE, I, WOODROW WILSON, PRESIDENT OF THE UNITED
STATES OF AMERICA, BY VIRTUE OF THE POWER IN ME VESTED BY THE LAWS OF
THE UNITED STATES, DO HEREBY MAKE KNOWN AND PROCLAIM THAT THE WATERS
WITHIN THREE THOUSAND FEET FROM THE SHORE LINES AT MEAN LOW TIDE OF
ANNETTE ISLAND, HAM ISLAND, WALKER ISLAND, LEWIS ISLAND, SPIRE ISLAND,
HEMLOCK ISLAND, AND ADJACENT ROCKS AND ISLETS, LOCATED WITHIN THE AREA
SEGREGATED BY THE BROKEN LINE UPON THE DIAGRAM HERETO ATTACHED AND MADE
A PART OF THIS PROCLAMATION; ALSO THE BAYS OF SAID ISLANDS, ROCKS, AND
ISLETS, ARE HEREBY RESERVED FOR THE BENEFIT OF THE METLAKAHTLANS AND
SUCH OTHER ALASKAN NATIVES AS HAVE JOINED THEM OR MAY JOIN THEM IN
RESIDENCE ON THESE ISLANDS, TO BE USED BY THEM UNDER THE GENERAL
FISHERIES LAWS AND REGULATIONS OF THE UNITED STATES AS ADMINISTERED BY
THE SECRETARY OF COMMERCE. 

"WARNING IS HEREBY EXPRESSLY GIVEN TO ALL UNAUTHORIZED PERSONS NOT TO
FISH IN OR USE ANY OF THE WATERS HEREIN DESCRIBED OR MENTIONED." 

A PRESIDENTIAL PROCLAMATION HAD THERETOFORE, 1892, SET APART AFOGNAK
ISLAND, ALASKA, AND ITS ADJACENT BAYS AND TERRITORIAL WATERS AS A
PUBLIC RESERVATION FOR FISH CULTURE WITHOUT SPECIFIC AUTHORITY TO
RESERVE WATERS.  27 STAT. 1052. 

FN39  BORAX, LTD. V. LOS ANGELES, 296 U.S. 10, 17, 22.  THIS CASE
TURNED ON THE POWER OF THE UNITED STATES TO CONVEY TIDELAND SEAWARD OF
THE LINE OF MEAN HIGH TIDE AFTER CALIFORNIA'S ADMISSION TO THE UNION. 
PUBLIC LANDS THERE COULD NOT INCLUDE TIDELANDS AS THEY PASSED TO
CALIFORNIA WHEN SHE BECAME A STATE.  THE CASES CITED IN THE BORAX CASE
TO SUPPORT THE STATEMENT AS TO PUBLIC LANDS ARE CASES THAT HAVE NOTHING
TO DO WITH TIDELANDS OR COASTAL WATERS BUT DEPEND UPON WHETHER THE
LANDS IN QUESTION WERE SUBJECT TO DISPOSAL AS PROPERTY OF THE UNITED
STATES, I.E., PUBLIC LANDS.  SEE NEWHALL V. SANGER, 92 U.S. 761, 763;
BARKER V. HARVEY, 181 U.S. 481, 490; UNION PACIFIC R. CO. V. HARRIS,
215 U.S. 386, 388. 

FN40  ACT OF MAY 14, 1898, C. 299, 30 STAT. 409, 48 U.S.C. SEC.
371(HOMESTEAD LAWS); ACT OF MARCH 3, 1899, C. 424, 30 STAT. 1098, 48
U.S.C. SEC. 351(PUBLIC LAND SURVEYS); ACT OF MARCH 2, 1907, C. 2537, 34
STAT. 1232, 48 U.S.C. SEC. 365(LAND DISTRICTS). 

FN41  SEE ALSO MILLER V. UNITED STATES, SUPRA, NOTE 28; HECKMAN V.
SUTTER, 128 F. 393. 

FN42  CF. UNITED STATES V. JEFFERSON ELECTRIC CO., 291 U.S. 386,
397. 

FN43  ALASKA FISHERIES GENERAL REGULATIONS, 50 C.F.R., C. II, P.
2333. 

FN44  ID., P. 2355; 3 FED. REG. 393. 

FN45  ID., P. 2359. 

FN46  11 FED. REG. 3105, 9528. 

FN47  EXECUTIVE ORDER OF FEB. 17, 1922, CREATING THE ALASKA PENINSULA
FISHERIES RESERVATION; EXECUTIVE ORDER NO. 3752 OF NOV. 3, 1922,
CREATING THE SOUTHWESTERN ALASKA FISHERIES RESERVATION.  REGULATIONS
ISSUED UNDER THESE TWO EXECUTIVE ORDERS ARE PRINTED IN THE FISHERIES
SERVICE BULLETIN OF THE BUREAU OF FISHERIES, DEPT. OF COMMERCE, NO. 92,
JAN. 2, 1923. 

FN48  65 CONG. REC. 5974; 65 CONG. REC. 9520-21; 65 CONG. REC. 9681
ET SEQ.; H.R. REP. NO. 357, 68TH CONG., 1ST SESS., P. 2; S. REP. NO.
449, 68TH CONG., 1ST SESS., P. 5; HOUSE HEARINGS, COMMITTEE ON MERCHANT
MARINE AND FISHERIES, FISHERIES OF ALASKA (1924), ON H.R. 2714, JANUARY
31-FEBRUARY 8, 1924, 68TH CONG., 1ST SESS., P. 21, ET SEQ. NOTE THAT
THIS IS A DIFFERENT BILL THAN H.R. 8143 WHICH BECAME THE WHITE ACT BUT
THE SUBJECT WAS THE SAME.  SEE H.R. REP. NO. 357, SUPRA, P. 1.  DOW V.
ICKES, 74 APP. D.C. 319, 123 F.2D 909. 

FN49  43 STAT. 466: 

"SEC. 6.  ANY PERSON, COMPANY, CORPORATION, OR ASSOCIATION VIOLATING
ANY PROVISION OF THIS ACT OR OF SAID ACT OF CONGRESS APPROVED JUNE 26,
1906, OR OF ANY REGULATION MADE UNDER THE AUTHORITY OF EITHER, SHALL,
UPON CONVICTION THEREOF, BE PUNISHED BY A FIND NOT EXCEEDING $5,000 OR
IMPRISONMENT FOR A TERM OF NOT MORE THAN NINETY DAYS IN THE COUNTY
JAIL, OR BY BOTH SUCH FINE AND IMPRISONMENT; AND IN CASE OF THE
VIOLATION OF SECTION 3 OF SAID ACT APPROVED JUNE 26, 1906, AS AMENDED,
THERE MAY BE IMPOSED A FURTHER FINE NOT EXCEEDING $250 FOR EACH DAY THE
OBSTRUCTION THEREIN DECLARED UNLAWFUL IS MAINTAINED.  EVERY BOAT,
SEINE, NET, TRAP, AND EVERY OTHER GEAR AND APPLIANCE USED OR EMPLOYED
IN VIOLATION OF THIS ACT OR IN VIOLATION OF SAID ACT APPROVED JUNE 26,
1906, AND ALL FISH TAKEN THEREIN OR THEREWITH, SHALL BE FORFEITED TO
THE UNITED STATES, AND SHALL BE SEIZED AND SOLD UNDER THE DIRECTION OF
THE COURT IN WHICH THE FORFEITURE IS DECLARED, AT PUBLIC AUCTION, AND
THE PROCEEDS THEREOF, AFTER DEDUCTING THE EXPENSES OF SALE, SHALL BE
DISPOSED OF AS OTHER FINES AND FORFEITURES UNDER THE LAWS RELATING TO
ALASKA.  PROCEEDINGS FOR SUCH FORFEITURE SHALL BE IN REM UNDER THE
RULES OF ADMIRALTY. 

"THAT FOR THE PURPOSES OF THIS ACT ALL EMPLOYEES OF THE BUREAU OF
FISHERIES, DESIGNATED BY THE COMMISSIONER OF FISHERIES, SHALL BE
CONSIDERED AS PEACE OFFICERS AND SHALL HAVE THE SAME POWERS OF ARREST
OF PERSONS AND SEIZURE OF PROPERTY FOR ANY VIOLATION OF THIS ACT AS
HAVE UNITED STATES MARSHALS OR THEIR DEPUTIES." 

FN50  43 STAT. 467: 

"SEC. 8.  NOTHING IN THIS ACT CONTAINED, NOR ANY POWERS HEREIN
CONFERRED UPON THE SECRETARY OF COMMERCE, SHALL ABROGATE OR CURTAIL THE
POWERS GRANTED THE TERRITORIAL LEGISLATURE OF ALASKA TO IMPOSE TAXES OR
LICENSES, NOR LIMIT OR CURTAIL ANY POWERS GRANTED THE TERRITORIAL
LEGISLATURE OF ALASKA BY THE ACT OF CONGRESS APPROVED AUGUST 24, 1912,
'TO CREATE A LEGISLATIVE ASSEMBLY IN THE TERRITORY OF ALASKA, TO CONFER
LEGISLATIVE POWER THEREON, AND FOR OTHER PURPOSES.'" 

FN51  SEE SEC. 1 OF THE WHITE ACT, PP. 92-93, SUPRA. 

FN52  SEE 27 STAT. 631, RELATING TO REPRESENTATION OF INDIANS BY THE
UNITED STATES DISTRICT ATTORNEYS; COHEN, HANDBOOK OF FEDERAL INDIAN
LAW, PP. 252-53; POWERS OF INDIAN TRIBES, SOLICITOR OF THE INTERIOR,
NATHAN R. MARGOLD, OCTOBER 25, 1934, M27781 PP. 55-58.  SEE UNITED
STATES V. CANDELARIA, 271 U.S. 432; UNITED STATES V. BERRIGAN, 2 ALASKA
442; UNITED STATES V. CADZOW, 5 ALASKA 125. 

FN53  DOW V. ICKES, 74 APP. D.C. 319, 326, 123 F.2D 909, 916:  "IT
PROHIBITS MONOPOLY, BUT IT DOES NOT PROHIBIT REASONABLE DISCRIMINATIONS
REQUIRED BY THE PURPOSE OF CONSERVATION AND LIMITATIONS INHERENT IN THE
TYPE OF FISHING TO WHICH THE SECRETARY'S JUDGMENT MUST BE APPLIED." 

FN54  "AN ORDINANCE.  WHEREAS, UNDER PUBLIC LAND ORDER 128, OF MAY
22, 1943, CREATING THE KARLUK RESERVATION, THE RIGHT TO FISH
COMMERCIALLY IN THE WATERS OF SAID RESERVATION IS RESTRICTED TO THE
INHABITANTS OF THE NATIVE VILLAGE OF KARLUK AND VICINITY, AND; 

"WHEREAS, NON-RESIDENTS DESIRE TO CONTINUE THEIR FISHING OPERATIONS
IN THE WATERS OF SAID RESERVATION; 

"NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE NATIVE VILLAGE
OF KARLUK, A FEDERAL CORPORATION CHARTERED UNDER THE ACT OF JUNE 18,
1934, AS AMENDED; 

"SECTION 1.  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON, PARTNERSHIP,
FIRM, ASSOCIATION OR CORPORATION, TO FISH FOR, TAKE OR CATCH ANY FISH,
OR TO OPERATE ANY FISHING VESSEL, GEAR OR EQUIPMENT, WITHIN THE WATERS
OF THE KARLUK RESERVATION EXCEPT UNDER A PERMIT ISSUED BY THE NATIVE
VILLAGE OF KARLUK, FOR WHICH THE FEE SHALL BE AS FOLLOWS: 

"(A)  FOR RESIDENTS OF THE TERRITORY OF ALASKA $1.00 

"(B)  FOR NON-RESIDENTS OF THE TERRITORY OF ALASKA $25.00 

"PROVIDED FURTHER, THAT A PERSON TO QUALIFY FOR A RESIDENT (CLASS A)
PERMIT MUST HAVE RESIDED IN THE TERRITORY OF ALASKA FOR THREE
CONSECUTIVE YEARS PRIOR TO THE DATE OF THEIR APPLICATION, OR REQUEST,
FOR A PERMIT. 

"SECTION 2.  THE POSSESSION OF FISH UPON ANY VESSEL WITHIN SAID
WATERS WITHOUT A PERMIT SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF A
VIOLATION OF THIS ORDINANCE. 

"SECTION 3.  ANY VIOLATION OF THIS ORDINANCE SHALL BE PUNISHED BY A
FINE OF NOT EXCEEDING FIVE HUNDRED DOLLARS ($500.) 

     .         .         .         .         . 

"APPROVED THIS 31ST DAY OF MAY, 1945." 

THE 1946 ORDINANCE MADE THE FEE $2.00 FOR RESIDENTS OF ALASKA AND
$40.00 FOR NONRESIDENTS. 

KARLUK HAD RECEIVED ITS CORPORATE CHARTER, CONSTITUTION AND BY-LAWS
AUGUST 23, 1939.  OFFICIAL PUBLICATIONS, OFFICE OF INDIAN AFFAIRS,
DEPARTMENT OF THE INTERIOR.  SEE SECS. 16 AND 17, 48 STAT. 987, 988. 

FN55  SECTION 5 OF THE CORPORATE CHARTER OF THE NATIVE VILLAGE OF
KARLUK PROVIDES THAT "IN USING ITS POWERS THE CORPORATION MUST NOT DO
THE FOLLOWING THINGS: 

     .   .         .         .         . 

"MAKE LEASES, PERMITS OR CONTRACTS COVERING ANY LANDS OR WATERS SET
ASIDE AS A RESERVE FOR THE VILLAGE WITHOUT THE APPROVAL OF THE
SECRETARY OF THE INTERIOR OR HIS AUTHORIZED REPRESENTATIVE." 

FN56            "COMMERCIAL FISHING PERMIT 

"KARLUK INDIAN RESERVATION, KARLUK, ALASKA, JUNE 30, 1946. 

"PURSUANT TO AN ORDINANCE PASSED BY THE COUNCIL OF THE NATIVE VILLAGE
OF KARLUK, ALASKA, DATED MAY 31, 1946, PERMISSION IS HEREBY GIVEN BY
THE NATIVE VILLAGE OF KARLUK TO RAY HARMON OF KODIAK, ALASKA, TO ENTER
THE WATERS AND LAND OF THE KARLUK RESERVATION FOR THE PURPOSE OF
ENGAGING IN COMMERCIAL FISHING FOR SALMON, S.J.F. & P. CO., DURING THE
PERIOD: 

"JUNE 1946 TO SEPTEMBER 1946. 

"THIS PERMIT IS ISSUED SUBJECT TO THE CONDITIONS PRINTED ON THE BACK
HEREOF. 

                                      EWAN M. NAUMOFF

                                        ISSUING OFFICER

                                       PRESIDENT KARLUK

                                          TITLE 

I ACCEPT:                                    APPROVED: 

RAY HARMON                                H. C. BINGHAM

  PERMITTEE                                APPROVING OFFICER 

BOAT NO. OR NAME:  CAROLINE               ASST. TEACHER A.N.S. 

FISHING FOR:  SAN JUAN UGANIK BAY, ALASKA    TITLE 

(CANNERY)    NAME$08RADDRESS

                              "CONDITIONS 

"THIS PERMIT IS VALID ONLY IF APPROVED BY THE GENERAL SUPERINTENDENT
OF THE INDIAN SERVICE IN ALASKA OR HIS DULY AUTHORIZED REPRESENTATIVE,
AND IS REVOCABLE IN THE DISCRETION OF THE ISSUING OFFICER.  IT IS NOT
TRANSFERABLE AND MUST BE CARRIED ON THE PERSON OF THE PERMITTEE WHEN
ENGAGED IN FISHING AUTHORIZED HEREUNDER, AND MUST BE EXHIBITED TO ANY
PERSON REQUESTING TO SEE IT.  THIS PERMIT IS ISSUED AND ACCEPTED BY THE
PERMITTEE ON THE EXPRESS CONDITION THAT THE PERMITTEE WILL COMPLY WITH
ALL OF THE PROVISIONS OF LAW AND REGULATIONS GOVERNING FISHING ON THE
KARLUK INDIAN RESERVATION, ALASKA.  THE PERMITTEE IS WARNED NOT TO
INTERFERE WITH THE FISHING ACTIVITIES OF THE INDIANS OF THE KARLUK
INDIAN RESERVATION NOR USE, DISTURB, OR DESTROY ANY PROPERTY BELONGING
TO SAID INDIANS." 

FN57  ARTICLE VI OF THE CONSTITUTION OF THE NATIVE VILLAGE OF KARLUK
PROVIDES THAT "CHANGES IN THIS CONSTITUTION AND BY-LAWS MAY BE MADE IF
THE CHANGES ARE APPROVED BY THE SECRETARY OF THE INTERIOR AND BY A
MAJORITY VOTE OF THE VILLAGE MEMBERS VOTING IN AN ELECTION CALLED BY
THE SECRETARY OF THE INTERIOR AT WHICH AT LEAST 30 PER CENT OF THE
VOTING MEMBERSHIP TAKE PART." 

FN58  FOR A DISCUSSION OF THE DIFFICULTIES OF THE PREPARATION OF
REGULATIONS, COMPARE ADDISON V. HOLLY HILL CO., 322 U.S. 607.  SEE ALSO
THE STATEMENTS OF THE COMMISSIONER OF INDIAN AFFAIRS IN HEARINGS BEFORE
THE HOUSE COMMITTEE ON INDIAN AFFAIRS, 73D CONG., 2D SESS., ON H.R.
7902(WHEELER-HOWARD ACT). 

FN59  VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 552;
HARRISONVILLE V. DICKEY CLAY CO., 289 U.S. 334, 338, NOTE 2. 

FN60  COMPARE ATLANTIC COAST LINE V. FLORIDA, 295 U.S. 301, 314-15;
BURFORD V. SUN OIL CO., 319 U.S. 315, 333; ADDISON V. HOLLY HILL CO.,
322 U.S. 607, 620. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY AGREE, DISSENTING IN PART. 

             I. 

JURISDICTIONAL QUESTIONS ASIDE, I AM IN FULL AGREEMENT WITH THE
COURT'S CONCLUSION THAT PUBLIC LAND ORDER 128, 8 FED. REG. 8557,  FN1
IS VALID AND WAS EFFECTIVE, ACCORDING TO ITS TERMS, TO INCLUDE IN THE
RESERVATION FOR THE KARLUK INDIANS THE TIDELANDS AND COASTAL WATERS
THEREIN DESCRIBED.  THIS ACTION WAS TAKEN PURSUANT TO THE STATUTORY
AUTHORIZATIONS RECITED IN THE ORDER AND PARTICULARLY THE ACT OF MAY 1,
1936, 49 STAT. 1250, 48 U.S.C. SEC. 358A.  WHEN APPROVED BY THE INDIANS
IN ACCORDANCE WITH THE PROVISO OF THE LATTER ACT, ORDER 128 WITHDREW
THE AREA COVERED FROM ANY GENERAL OR PUBLIC RIGHT OF ACCESS FOR FISHING
OR OTHER PURPOSES INCONSISTENT WITH THOSE OF THE RESERVATION AND SET
ASIDE THAT AREA FOR THE EXCLUSIVE BENEFIT OF THE INDIAN OCCUPANTS AND
INHABITANTS.  CF. ALASKA PACIFIC FISHERIES V. UNITED STATES, 248 U.S.
78.  THE NECESSARY EFFECT WAS TO FORBID OTHERS TO ENTER THE AREA FOR
PURPOSES INCONSISTENT WITH THE RESERVATION'S OBJECTS, THUS MAKING
PERSONS SO ENTERING TRESPASSERS AND SUBJECT TO SUCH REMEDIES AS THE LAW
MAY AFFORD TO PREVENT OR REDRESS THEIR WRONGFUL ENTRY.    BY HIS 1946
AMENDMENTS TO THE ALASKA FISHERIES GENERAL REGULATIONS, 50 C.F.R., 1946
SUPP., SEC. 208.23(R), THE SECRETARY OF THE INTERIOR REINFORCED HIS
PRIOR ACTION IN SETTING ASIDE THE KARLUK RESERVATION, PROHIBITING
FISHING WITHIN THE COASTAL WATERS INCLUDED IN PUBLIC LAND ORDER 128,
EXCEPT "BY NATIVES IN POSSESSION OF SAID RESERVATION" AND "BY OTHER
PERSONS UNDER AUTHORITY GRANTED BY SAID NATIVES  ...  BY OR PURSUANT TO
ORDINANCE OF THE NATIVE VILLAGE OF KARLUK" APPROVED BY THE SECRETARY OR
HIS DULY AUTHORIZED REPRESENTATIVE.  FN2  THIS ACTION WAS TAKEN
PURSUANT TO 34 STAT. 263, 478, AS AMENDED BY THE WHITE ACT OF JUNE 6,
1924, 43 STAT. 464, AS AMENDED JUNE 18, 1926, 44 STAT. 752. 

THAT ACT, IN THE INTEREST OF "PROTECTING AND CONSERVING THE FISHERIES
OF THE UNITED STATES IN ALL WATERS OF ALASKA," CONFERRED UPON THE
SECRETARY OF COMMERCE (NOW INTERIOR), BROAD POWERS TO "SET APART AND
RESERVE FISHING AREAS IN ANY OF THE WATERS OF ALASKA OVER WHICH THE
UNITED STATES HAS JURISDICTION" AND WITHIN SUCH AREAS TO "ESTABLISH
CLOSED SEASONS DURING WHICH FISHING MAY BE LIMITED OR PROHIBITED AS HE
MAY PRESCRIBE."  SEE DOW V. ICKES, 74 APP. D.C. 319.  EFFECTIVE PENAL
PROVISIONS BY WAY OF CRIMINAL SANCTIONS AND FOR SEIZURE AND FORFEITURE
OF OFFENDING BOATS, GEAR AND APPLIANCES WERE ENACTED TO PREVENT OR
REDRESS VIOLATION OF THE REGULATIONS MADE PURSUANT TO THE STATUTE'S
AUTHORIZATION.  FN3 

THE PROMULGATION OF AMENDED REGULATIONS SEC. 208.23(R), PURSUANT TO
THE WHITE ACT'S PROVISIONS, REINFORCED THE EFFECT OF PUBLIC LAND ORDER
128 IN WITHDRAWING THE AREA COVERED BY THE LATTER FROM PUBLIC OR COMMON
RIGHT OF ENTRY FOR FISHING AND OTHER PURPOSES.  BUT IT HAD ALSO THE
FURTHER EFFECT OF NOTIFYING THE PUBLIC THAT TRESPASS UPON THE RESERVED
AREA BY PERSONS NOT ENTITLED TO ENTER AND USE IT WOULD BE MET WITH THE
WHITE ACT SANCTIONS  FN4  FOR ENFORCEMENT OF THE ORDER AND THE AMENDED
REGULATIONS. 

ALTHOUGH HOLDING PUBLIC LAND ORDER 128 VALID AND EFFECTIVE TO
ESTABLISH THE RESERVATION FOR THE INDIANS' EXCLUSIVE BENEFIT, THE COURT
FINDS AMENDED REGULATIONS SEC. 208.23(R) "VOID AS A WHOLE."  THE CHIEF
CONSEQUENCE HELD TO FOLLOW IS THAT THE WHITE ACT SANCTIONS CANNOT BE
APPLIED TO ENFORCE THE REGULATIONS OR TO PREVENT OR REDRESS TRESPASS
UPON THE RESERVATION BY OTHERS THAN THE INDIANS IN POSSESSION OR THEIR
LICENSEES. 

WITH THIS CONCLUSION I CANNOT AGREE.  THE AMENDED REGULATIONS'
INVALIDITY IS SAID TO FOLLOW SOLELY BECAUSE OF THE EXCEPTION PERMITTING
NATIVES AND THEIR LICENSEES TO FISH IN RESERVATION WATERS.  THIS IS
SAID TO VIOLATE THE WHITE ACT PROVISO, WHICH FORBIDS ANY "EXCLUSIVE OR
SEVERAL RIGHT OF FISHERY" AND DENIAL TO ANY CITIZEN OF THE RIGHT TO
FISH IN ANY WATERS WHERE FISHING IS PERMITTED BY THE SECRETARY'S
REGULATIONS.  IN OTHER WORDS, BECAUSE THE SECRETARY ALLOWS THE INDIANS
TO FISH IN THE RESERVATION WATERS HE MUST ALLOW ALL OTHERS TO DO SO ON
EQUAL TERMS, OTHERWISE HIS REGULATIONS BECOME TOTALLY VOID AND THE
WHITE ACT SANCTIONS UNAVAILABLE FOR PROTECTION OF THE RESERVATIONS AND
THE INDIANS' RIGHTS. 

THIS VIEW, IT SEEMS TO ME, RESTS UPON TWO FALLACIES.  ONE IS THAT THE
TWO STATUTES, OF 1936 AND 1924, ARE IN IRRECONCILABLE COLLISION AND THE
SECRETARY CANNOT EXERCISE THE POWERS GIVEN TO HIM BY THE 1936 ACT AND
BY THE WHITE ACT CONSISTENTLY AND SIMULTANEOUSLY WITH REFERENCE TO THE
SAME WATERS.  THE OTHER FALLACY IS A COROLLARY, NAMELY, THAT THE WHITE
ACT PROVISO APPLIES WHEREVER THE WHITE ACT PROHIBITIONS AND SANCTIONS
MAY BE MADE APPLICABLE, EVEN THOUGH THE AREA IS A VALID INDIAN
RESERVATION. 

I DO NOT THINK THE TWO STATUTES ARE IN SUCH INESCAPABLE INCONSISTENCY
AS FORBIDS THEIR SIMULTANEOUS AND HARMONIOUS APPLICATION IN SETTING
ASIDE AND PROTECTING RESERVATIONS FOR THE EXCLUSIVE USE AND BENEFIT OF
THE NATIVE INDIAN POPULATION.  INDEED THEIR LEGISLATIVE HISTORY AND
PURPOSES DEMONSTRATE THAT THEY WERE INTENDED TO SERVE COMMON OBJECTS IN
THE CONSERVATION AND PROTECTION OF ALASKAN FISHERIES. 

THE WHITE ACT WAS ADOPTED IN 1924.  ITS PRIMARY OBJECT WAS TO
PRESERVE THE FISHERIES OF ALASKA FROM THE DESTRUCTIVE PRIVATE
EXPLOITATION THEN TAKING PLACE.  THAT EVIL DID NOT ARISE FROM ANY
PREVIOUS, EXISTING, OR ANTICIPATED POLICY OF SETTING ASIDE RESERVATIONS
FOR THE EXCLUSIVE BENEFIT OF THE NATIVES.  IT AROSE EXCLUSIVELY FROM
QUITE THE CONTRARY POLICY OF PERMITTING WIDESPREAD COMMERCIAL
EXPLOITATION BY SPECIALLY FAVORED GROUPS, NOT OF INDIANS BUT OF OTHERS
WHO SOUGHT AND SECURED MONOPOLISTIC PRIVILEGES AND FAVORS IN FISHING. 
THERE WERE THEREFORE TWIN EVILS AT WHICH THE WHITE ACT STRUCK.  ONE WAS
THE RAPID AND VIRTUALLY UNRESTRAINED DEPLETION AND DESTRUCTION OF THE
FISHERIES; THE OTHER, THE EXPANDING CREATION OF COMMERCIAL MONOPOLIES
FOSTERED BY PREEXISTING POLICY IN REGULATING THE INDUSTRY.  65 CONG.
REC. 9520-9521; SEE ALSO 65 CONG. REC. 9680-9682; H.R. REP. NO. 357,
68TH CONG., 1ST SESS. 2; S. REP. NO. 449, 68TH CONG., 1ST SESS. 5;
HEARINGS BEFORE THE HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES ON
H.R. 2714, 68TH CONG., 1ST SESS. 

THE WHITE ACT, ACCORDINGLY, WAS NOT MERELY AND EXCLUSIVELY AN
ANTIMONOPOLY STATUTE.  IT WAS BOTH A CONSERVATION MEASURE AND ONE TO
OUTLAW PRIVATE, COMMERCIAL MONOPOLY.  THE CONSERVATION FEATURES WERE
CONTAINED IN THE BASIC GENERAL PROVISIONS GIVING THE SECRETARY HIS
BROAD POWERS OF CONTROL OVER FISHING.  THE MORE SPECIFIC ANTIMONOPOLY
FEATURES WERE INCLUDED IN THE PROVISO.  THE LATTER WERE IMPORTANT.  BUT
THEY DID NOT OVERRIDE OR MINIMIZE THE MORE GENERAL PROVISIONS, APART
FROM THE PROVISO, GIVING THE SECRETARY POWER TO REGULATE THE INDUSTRY
IN THE INTEREST OF "PROTECTING AND CONSERVING THE FISHERIES OF THE
UNITED STATES IN ALL WATERS OF ALASKA."  THE PROVISO MERELY LIMITED THE
MANNER IN WHICH HIS POWER WAS TO BE EXERCISED IN THE SITUATIONS TO
WHICH THE PROVISO WAS APPLICABLE. 

SO THE QUESTIONS ARISE WHETHER THE PROVISO WAS INTENDED TO HAVE ANY
EFFECT IN WATERS VALIDLY SET ASIDE BY CONGRESS, EXECUTIVE ORDER, OR THE
SECRETARY AS RESERVATIONS FOR THE EXCLUSIVE BENEFIT OF THE NATIVE
POPULATION AND, CORRELATIVELY, WHETHER THE POLICY OF THE PROVISO WAS
MEANT TO FORBID THE APPLICATION OF OTHER PROVISIONS OF THE WHITE ACT,
INCLUDING ITS PROHIBITIONS AND SANCTIONS, IN THE PROTECTION AND
CONSERVATION OF SUCH RESERVATIONS.  IN OTHER WORDS, WAS THE GENERAL
POLICY OF THE WHITE ACT IN CONFLICT WITH THE POLICY EXISTING AT ITS
ENACTMENT CONCERNING ALASKAN INDIAN RESERVATIONS OR LATER UNDER THE
1936 ACT, SO AS TO REQUIRE THAT THE TWO POLICIES OR STATUTES BE KEPT
ENTIRELY SEPARATE AND DISTINCT IN THEIR APPLICATION AND ADMINISTRATION
AND TO FORBID THEM TO BE APPLIED CONJOINTLY IN EXECUTING THEIR COMMON
CONSERVING AND PROTECTING OBJECTS? 

CERTAINLY THE WHITE ACT PROVISO HAD NO PURPOSE TO THROW OPEN VALIDLY
CREATED INDIAN RESERVATIONS TO FISHING BY ALL COMERS.  ITS AIM WAS NOT
TO DESTROY SUCH RESERVATIONS OR TO OPEN THEM TO GENERAL, COMMON RIGHTS
OF FISHING.  IN VIEW OF THE LEGISLATIVE HISTORY CITED ABOVE, WHICH IS
CONSISTENTLY SUPPORTED BY SUBSEQUENT ADMINISTRATIVE CONSTRUCTION N5,
THE PROVISO CANNOT BE CONSTRUED AS EXPRESSING ANY POLICY HOSTILE TO
CREATING SUCH RESERVATIONS WITH EXCLUSIVE RIGHTS OF FISHING FOR THE
NATIVE POPULATION AND PROTECTING THEM AGAINST WRONGFUL INVASION.  ON
THE CONTRARY, THE STATUTE, INCLUDING THE PROVISO, WAS STRONGLY
SUPPORTED BY THE DELEGATES IN CONGRESS FROM ALASKA AND OTHERS
REPRESENTING THE NATIVE INTERESTS  FN6  AS AGAINST THOSE OF COMMERCIAL
EXPLOITATION TOWARD WHICH THE ACT WAS AIMED.  THERE WERE NUMEROUS
INDIAN RESERVATIONS IN EXISTENCE AT THE TIME OF THE LEGISLATION, CF.
ALASKA PACIFIC FISHERIES V. UNITED STATES, SUPRA, AFFORDING THE NATIVES
EXCLUSIVE FISHING RIGHTS.  BUT THE EXTENSIVE LEGISLATIVE HISTORY
DISCLOSES NO PROTEST, COMPLAINT OR CONCERN ARISING ON ACCOUNT OF THEM. 
INDEED IT GIVES STRONG REASON FOR BELIEVING THAT THE NATIVE INTERESTS
JOINED WITH OTHERS IN OPPOSING CONTINUANCE OF THE POLICY OF
MONOPOLISTIC COMMERCIAL EXPLOITATION AND IN SUPPORT OF THE WHITE ACT,
INCLUDING THE PROVISO, AS A NECESSARY METHOD OF PREVENTING THE IMMINENT
DESTRUCTION OF THE NATIVES' HISTORIC MEANS OF LIVELIHOOD BY THAT FORM
OF EXPLOITATION, AND NOT AT ALL BY REASON OF ANY EVILS ARISING OUT OF
EXCLUSIVE FISHING RIGHTS GRANTED TO THE NATIVE POPULATION IN
RESERVATIONS VALIDLY CREATED FOR ITS BENEFIT. 

CONSEQUENTLY, FAR FROM REPRESENTING AN ATTITUDE OR PURPOSE OF
HOSTILITY TOWARD A POLICY OF INDIAN RESERVATIONS WITH EXCLUSIVE NATIVE
RIGHTS OF FISHING, THE WHITE ACT CONSTITUTED AN EFFECTIVE STEP TOWARD
CONSERVING THE ALASKAN FISHERIES, UNDER THE SECRETARY'S BROAD
REGULATORY POWERS, FOR SUCH PURPOSES AS WELL AS FOR THE PREVENTION OF
MONOPOLY IN OPEN FISHING AREAS WHERE NO RESERVATIONS EXISTED. 

IT FOLLOWS, IN MY VIEW, THAT THE WHITE ACT PROVISO HAS, AND WAS
INTENDED TO HAVE, NO APPLICATION TO VALIDLY CREATED INDIAN
RESERVATIONS, EITHER TO FORBID THE SECRETARY TO EXCLUDE OTHERS THAN
NATIVES FROM FISHING IN THE RESERVATION WATERS OR TO COMPEL HIM, IF HE
ALLOWS THE NATIVES TO FISH, TO PERMIT ALL OTHER CITIZENS TO DO SO ON
EQUAL TERMS.  THE PROVISO HAD NO PURPOSE SO TO RESTRICT HIS POWERS IN
RELATION TO RESERVATION AREAS.  IT WAS DIRECTED SOLELY AGAINST ABUSES
BY OTHER THAN NATIVE INTERESTS IN WATERS NOT INCLUDED WITHIN AREAS SET
ASIDE FOR THE NATIVES' EXCLUSIVE BENEFIT. 

BUT IT DOES NOT FOLLOW, IN MY OPINION, THAT BECAUSE THE PROVISO IS
INAPPLICABLE THE SECRETARY IS FORBIDDEN TO EXERCISE HIS REGULATORY AND
ENFORCING POWERS UNDER THE WHITE ACT IN PROTECTION OF RESERVATIONS AND
THE NATIVES' EXCLUSIVE RIGHTS IN THEM OR THAT HE CANNOT UTILIZE THOSE
POWERS AND THE WHITE ACT SANCTIONS CONJOINTLY WITH HIS AUTHORITY UNDER
THE 1936 ACT TO CREATE RESERVATIONS AND PROTECT THEM AGAINST UNLAWFUL
INVASION.  THE WHITE ACT PROVISO ASIDE AS INAPPLICABLE IN PURPOSE AND
INTENT TO THE SPECIFIC SITUATION, I.E., ONE INVOLVING A VALIDLY CREATED
RESERVATION, NOTHING IN EITHER STATUTE FORBIDS HIS DOING SO.  EACH IS
IN TERMS A CONSERVATION MEASURE, HAVING THE COMMON OBJECT OF PRESERVING
AND PROTECTING THE ALASKAN FISHERIES FROM UNRESTRICTED EXPLOITATION AND
DESTRUCTION BY COMMERCIAL INTEREST.  THAT COMMUNITY OF PURPOSE IS NOT
AFFECTED BY THE FACT THAT THE ONE ACT SECURES THIS PROTECTION FOR THE
PUBLIC GENERALLY, THE OTHER FOR THE SPECIAL BENEFIT OF THE NATIVE
POPULATION.  THAT DIFFERENCE MERELY MEANS THAT TWO INTERESTS REQUIRE
AND ARE GIVEN PROTECTION AGAINST A THIRD, NOT THAT THE LATTER ACQUIRES
IMMUNITY AGAINST PROTECTION AFFORDED EITHER OR BOTH OF THE OTHER TWO. 

ACCORDINGLY, IN MY OPINION, THE WHITE ACT PROVISO BEING INAPPLICABLE
TO WATERS INCLUDED IN A VALID INDIAN RESERVATION, THE TWO STATUTES MAY
BE APPLIED TO SERVE THEIR BASIC COMMON OBJECTS OF CONSERVING AND
PROTECTING FISHERIES IN ALL ALASKAN WATERS, INCLUDING THOSE SET APART
AS VALID INDIAN RESERVATIONS, AS AGAINST THE PRIVATE, COMMERCIAL
EXPLOITATION AND MONOPOLY WHICH THE WHITE ACT AND THE ACT OF 1936 WERE
INTENDED TO PREVENT.  THE STATUTES SHOULD BE SONSTRUED, AND CONGRESS, I
THINK, INTENDED THEM TO BE CONSTRUED, SO AS TO WORK TOGETHER
HARMONIOUSLY, NOT IRRECONCILABLY, TO ACHIEVE THIS OBJECT. 

I THEREFORE CANNOT REGARD AMENDED REGULATIONS SEC. 208.23(R) AS "VOID
AS A WHOLE."  THE REGULATIONS ARE VALID, IN MY JUDGMENT, AND
ENFORCEABLE BY APPLICATION OF THE WHITE ACT SANCTIONS, EXCEPT POSSIBLY
IN ONE RESPECT.  THIS IS THE FEATURE BY WHICH THE SECRETARY HAS
DELEGATED TO THE VILLAGE OF KARLUK THE AUTHORITY BY ORDINANCE TO
LICENSE OTHERS THAN NATIVES OF THE VILLAGE TO FISH ON TERMS FIXED BY
THE ORDINANCE SUBJECT TO THE SECRETARY'S APPROVAL.  CONCEIVABLY THAT
POWER MIGHT BE EXERCISED BY THE VILLAGE, THROUGH LICENSING OTHERS THAN
NATIVE INHABITANTS, IN A MANNER WHICH WOULD VIOLATE THE SPIRIT OF THE
WHITE ACT PROVISO, I.E., BY LICENSING FAVORED COMMERCIAL INTERESTS SO
AS TO CREATE ESSENTIALLY THE TYPE OR TYPES OF MONOPOLY OR FAVORITISM
THE PROVISO INTENDED TO FORBID. 

IT IS ONE THING OF COURSE FOR THE SECRETARY TO GIVE THE NATIVES
EXCLUSIVE RIGHTS OF FISHING IN THE RESERVATION'S WATERS.  IT MAY BE
ENTIRELY ANOTHER FOR HIM TO DELEGATE TO THEM THE LICENSING OF OTHERS,
EVEN RETAINING THE POWER TO APPROVE THE LICENSING ORDINANCE AS AMENDED
REGULATIONS SEC. 208.23(R) DOES. 

 II. 

WHETHER OR NOT THE AUTHORITY CONFERRED BY THE REGULATIONS UPON THE
VILLAGE TO LICENSE OTHERS IS VALID IS A QUESTION, HOWEVER, WHICH I
THINK IT NEITHER NECESSARY NOR APPROPRIATE TO ANSWER IN THIS
PROCEEDING, FOR REASONS AFFECTING THE EXISTENCE AND PROPRIETY OF
EXERCISING EQUITY JURISDICTION IN THIS CAUSE, NOW TO BE STATED. 

I SERIOUSLY DOUBT THE EXISTENCE OF EQUITY JURISDICTION ON THE SHOWING
MADE BY THIS RECORD.  BUT IN ANY EVENT I DO NOT THINK IT SHOULD BE
EXERCISED TO AFFORD RESPONDENTS THE RELIEF THEY HAVE SOUGHT.  THE
SECRETARY OF THE INTERIOR, WHOSE REGULATIONS AND AUTHORITY ARE AT
STAKE, HAS NOT BEEN MADE A PARTY TO THE SUIT.  NOR HAS THE VILLAGE OF
KARLUK, WHICH OBVIOUSLY IS VITALLY INTERESTED.  MOREOVER, THE
ALLEGATIONS CONCERNING THREATENED ENFORCEMENT OF THE REGULATIONS BY
WHITE ACT SANCTIONS SEEM QUESTIONABLY SUFFICIENT TO ESTABLISH THE BASIS
FOR EQUITABLE INTERVENTION, IN VIEW OF CIRCUMSTANCES APPEARING IN THE
RECORD AND ASSERTED IN BRIEFS FILED HERE QUESTIONING THEIR
SUFFICIENCY. 

BUT, IF ALL THESE FACTORS ARE PUT TO ONE SIDE, ONE OTHER REMAINS
WHICH IN MY OPINION PRECLUDES GRANTING THE EQUITABLE RELIEF RESPONDENTS
SEEK.  THEIR CLAIM WAS FOUNDED IN THE COMPLAINT, AS I THINK IT HAD TO
BE, NOT ONLY UPON THE ALLEGED INVALIDITY OF AMENDED REGULATIONS SEC.
208.23(R), BUT ALSO UPON THE ASSERTED INVALIDITY OF PUBLIC LAND ORDER
128.  HOWEVER, THEY HAVE NOT BEEN SUCCESSFUL IN THE LATTER ATTACK, FOR
THE COURT HOLDS THAT PUBLIC LAND ORDER 128 IS VALID AND WAS EFFECTIVE
TO CREATE THE KARLUK RESERVATION ACCORDING TO THAT ORDER'S TERMS. 
THIS RULING CUTS ALL VALID GROUND FROM BENEATH RESPONDENTS' CLAIM TO
AID FROM A COURT OF EQUITY.  WITH IT, THEY COME NOT AS PERSONS ENTITLED
OF RIGHT TO ENTER THE RESERVATION AND FISH, BUT SOLELY AS TRESPASSERS
HAVING NO RIGHT OF ENTRY, BUT SEEKING ONLY TO AVERT THE INCIDENCE OF
POSSIBLE REMEDIES FOR THREATENED WRONGFUL ENTRY.  IN EFFECT THE COURT'S
DECISION IS THAT RESPONDENTS, ALTHOUGH THEY HAVE NOT PUT FORWARD THEIR
CASE IN THIS LIGHT, ARE ENTITLED TO HAVE IT SO DETERMINED AND TO HAVE
EQUITABLE RELIEF WHICH PREVENTS POSSIBLE APPLICATION OF WHITE ACT
SANCTIONS AGAINST THEM.  I CANNOT AGREE THAT PERSONS SO SITUATED HAVE
STANDING TO INVOKE THE ASSISTANCE OF A COURT OF EQUITY.  ACCORDINGLY I
THINK THE JUDGMENT SHOULD BE REVERSED AND THE CAUSE SHOULD BE REMANDED
WITH INSTRUCTIONS TO DISMISS IT. 

FN1  SET FORTH AT NOTE 1 OF THE COURT'S OPINION. 

FN2  SEE TEXT OF THE AMENDED REGULATION AS QUOTED IN THE COURT'S
OPINION AT P. 92. 

FN3  REFERENCE IS MADE TO THE COURT'S OPINION AT PP. 92-93 FOR THE
PERTINENT LANGUAGE OF THE STATUTE AND AT NOTE 49 FOR THE ACT'S PENAL
PROVISIONS. 

FN4  SEE NOTE 49, MAJORITY OPINION. 

FN5  SEE, E.G., DEPARTMENT OF COMMERCE, LAWS AND REGULATIONS FOR
PROTECTION OF FISHERIES OF ALASKA (DEPT. CIRCULAR NO. 251, 13TH ED.),
DEC. 22, 1926; OP. OF SOLICITOR, DEPT. OF INTERIOR, 56 I.D. 110. 

FN6  SEE THE LEGISLATIVE DEBATES, REPORTS AND HEARINGS CITED IN THE
TEXT, SUPRA. 

MR. JUSTICE DOUGLAS JOINS IN PART I OF THIS OPINION. 
..END :















SMITH V. UNITED STATES, 337 U.S. 137 


NO. 292.  ARGUED MARCH 4, 7, 1949.  - DECIDED MAY 31, 1949.  - 169 F.2D
856, REVERSED. 


IN A PROSECUTION FOR VIOLATIONS OF THE SECOND WAR POWERS ACT AND FOR
CONSPIRACY TO VIOLATE THE EMERGENCY PRICE CONTROL ACT OF 1942,
PETITIONER CLAIMED IMMUNITY UNDER SEC. 202 OF THE LATTER ACT, WHICH
INCORPORATES THE IMMUNITY PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF
1893.  THE CHARGES INVOLVED MISUSE OF PRIORITIES FOR MATERIALS AND
CONSPIRACY TO SELL GOODS AT ABOVE-CEILING PRICES.  THE CLAIM OF
IMMUNITY FROM PROSECUTION WAS BASED ON TESTIMONY GIVEN BY PETITIONER
BEFORE AN EXAMINER OF THE OFFICE OF PRICE ADMINISTRATION IN RESPONSE TO
SUBPOENAS ISSUED BY THAT OFFICE.  HELD: 

1.  PETITIONER HAVING CLAIMED AND RELIED ON HIS PRIVILEGE FROM THE
BEGINNING OF HIS EXAMINATION, AND HIS TESTIMONY, IN PART AT LEAST,
HAVING BORNE DIRECTLY ON THE SUBSEQUENT CHARGES, HE WAS ENTITLED TO
IMMUNITY FROM PROSECUTION.  PP. 146-149. 

2.  PETITIONER'S IMMUNITY FROM PROSECUTION ON FACTS CONCERNING WHICH
HE WAS COMPELLED TO TESTIFY WAS NOT WAIVED IN THIS CASE BY A SUBSEQUENT
"VOLUNTARY STATEMENT."  PP. 149-152. 

(A)  ALTHOUGH THE PRIVILEGE AGAINST SELF-INCRIMINATION MAY BE WAIVED,
A WAIVER IS NOT LIGHTLY TO BE INFERRED.  PP. 149-150. 

(B)  A WITNESS CAN NOT PROPERLY BE HELD AFTER CLAIM TO HAVE WAIVED
HIS PRIVILEGE AND CONSEQUENT IMMUNITY UPON VAGUE AND UNCERTAIN
EVIDENCE.  P. 150. 

3.  AS TO THE CONSPIRACY CHARGE, PETITIONER TESTIFIED CONCERNING
TRANSACTIONS, MATTERS AND THINGS SUBSTANTIALLY CONNECTED WITH PARTS OF
THE CONSPIRACY; HIS TESTIMONY WAS NOT WHOLLY EXCULPATORY; AND HE WAS
ENTITLED TO THE CLAIMED IMMUNITY FROM PROSECUTION.  PP. 152-153. 

SMITH V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PETITIONER'S CONVICTION ON CHARGES OF VIOLATING THE SECOND WAR POWERS
ACT AND OF CONSPIRING TO VIOLATE THE EMERGENCY PRICE CONTROL ACT OF
1942 WAS AFFIRMED IN PART BY THE COURT OF APPEALS.  169 F.2D 856.  THIS
COURT GRANTED CERTIORARI.  335 U.S. 882.  REVERSED, P. 153. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER, GEORGE SMITH, TOGETHER WITH DAISART SPORTSWEAR, INC., AND
ANOTHER PERSON, WAS CHARGED BY THE UNITED STATES IN TWO INFORMATIONS OF
FORTY-ONE COUNTS EACH WITH VIOLATIONS OF SEC. 301 OF THE SECOND WAR
POWERS ACT  FN1  AND PRIORITIES REGULATIONS NOS. 1 AND 3.  FN2  THE
FIRST INFORMATION CHARGED PETITIONER AND HIS CO-DEFENDANTS WITH THE
INTENTIONAL MISUSE OF PRIORITY RATINGS IN FORTY-ONE INSTANCES IN ORDER
TO PURCHASE CERTAIN COTTON AND RAYON MATERIALS AND THE SECOND
INFORMATION CHARGED THEM WITH THE UNLAWFUL UTILIZATION OF THE TEXTILES
SO OBTAINED.  THE SAME DEFENDANTS WERE ALSO INDICTED IN THE SAME COURT
FOR CONSPIRING TO VIOLATE THE EMERGENCY PRICE CONTROL ACT OF 1942  FN3
AND THE REGULATIONS THEREUNDER BY SELLING FINISHED PIECE GOODS ABOVE
THE ESTABLISHED MAXIMUM PRICE AND BY KEEPING FALSE RECORDS OF THEIR
TRANSACTIONS.  THE TWO INFORMATIONS AND THE INDICTMENT WERE
CONSOLIDATED FOR TRIAL IN THE DISTRICT COURT OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK; AFTER TRIAL BEFORE A JURY PETITIONER
WAS FOUND GUILTY ON THE INDICTMENT AND ON THIRTY-FIVE COUNTS OF EACH OF
THE INFORMATIONS.  ON APPEAL THE COURT OF APPEALS FOR THE SECOND
CIRCUIT AFFIRMED THE CONVICTION AS TO THE INDICTMENT AND TWENTY-THREE
COUNTS OF EACH OF THE INFORMATIONS, BUT REVERSED AS TO TWELVE COUNTS OF
EACH OF THE TWO INFORMATIONS.  UNITED STATES V. DAISART SPORTSWEAR, 169
F.2D 856. 

DURING 1944 AND 1945 THE PETITIONER, SMITH, WAS THE SOLE OWNER AND
OFFICER OF DAISART SPORTSWEAR, INC. (HEREINAFTER CALLED DAISART), A
CORPORATION ENGAGED IN THE FABRICATION, PURCHASE, AND SALE OF TEXTILE
GOODS.  ITS ACTUAL OPERATION WAS AS A CONTRACTOR WORKING ON THE GOODS
OF OTHERS.  AS PART OF ITS BUSINESS DAISART WAS TO FURNISH METALS
DISINTEGRATING CORPORATION WITH CLOTH BAGS FOR FILTERING AND PACKING
THE METAL POWDERS MANUFACTURED BY METALS DISINTEGRATING UNDER CONTRACTS
WITH THE ARMY AND NAVY.  THE WAR PRODUCTION BOARD HAD GRANTED METALS
DISINTEGRATING HIGH PREFERENCE RATINGS TO SECURE THE MATERIALS
NECESSARY TO FULFILL ITS GOVERNMENT CONTRACTS.  BECAUSE OF ITS
INABILITY TO PROVIDE THE PARTICULAR CLOTH USED TO MAKE POWDER BAGS,
WHICH WAS OF A GREYISH WHITE DUCK COLOR, VERY SIMILAR TO THE CANVAS
USED IN TENTS, METALS DISINTEGRATING GAVE DAISART HIGH BLANKET
PREFERENCE RATINGS WHICH DAISART WAS TO APPLY OR EXTEND  FN4  TO
PURCHASE ALL THE PIECE GOODS NEEDED TO MANUFACTURE THE BAGS. 

THERE IS EVIDENCE WHICH WOULD JUSTIFY A JURY IN FINDING THE FOLLOWING
FACTS.  THROUGH THE USE OF THESE TOP PRIORITIES PETITIONER OBTAINED
PIECE GOODS FOR HIS COMPANY, AND IN THE ORDERS HE CERTIFIED THAT THE
GOODS WERE TO BE MANUFACTURED INTO POWDER BAGS.  OVER TWO AND A HALF
MILLION SQUARE YARDS OF MATERIAL WERE THUS INVOICED TO AND PAID FOR BY
DAISART.  METALS DISINTEGRATING, HOWEVER, PURCHASED FROM DAISART ONLY
11,987 POWDER BAGS, CONSISTING OF 48,920 SQUARE YARDS OF MATERIAL. 
MOREOVER THESE PIECE GOODS WHICH PETITIONER OBTAINED BY MEANS OF
PREFERENCE RATINGS CONSISTED OF FABRICS OF A WIDE VARIETY OF COLORS AND
FINISHES.  THEY WERE RESOLD BY DAISART, OFTEN STILL IN THEIR ORIGINAL
PACKING, TO MANUFACTURERS OF CIVILIAN CLOTHING AT PRICES FAR IN EXCESS
OF THE MAXIMUM ESTABLISHED BY LAW.  IN THESE TRANSACTIONS PETITIONER
AND HIS CORPORATION IN CONSPIRACY WITH THE OTHER PERSON INDICTED USED
FICTITIOUS NAMES, GAVE FALSE DESCRIPTIONS OF GOODS AND PRICES, AND
FALSIFIED INVOICES, BUT THE MONEY PAID FOR THE GOODS ARRIVED BY
CIRCUITOUS AND DEVIOUS ROUTES INTO THE BANK ACCOUNTS OF EITHER
PETITIONER OR DAISART SPORTSWEAR, INC. 

SUCH EVIDENCE IS AMPLY SUFFICIENT TO SUSTAIN PETITIONER'S CONVICTION
ON THE INFORMATIONS AND INDICTMENT, BUT HE INSISTS THAT HE IS IMMUNE
FROM PROSECUTION FOR THE ACTS OF WHICH HE STANDS CONVICTED.  HE BASES
HIS CLAIM TO IMMUNITY ON SEC. 202 OF THE EMERGENCY PRICE CONTROL ACT OF
1942, AS AMENDED, 56 STAT. 23, 58 STAT. 632, WHICH READS AS FOLLOWS: 

"(A)  THE ADMINISTRATOR IS AUTHORIZED TO MAKE SUCH STUDIES AND
INVESTIGATIONS, TO CONDUCT SUCH HEARINGS, AND TO OBTAIN SUCH
INFORMATION AS HE DEEMS NECESSARY OR PROPER TO ASSIST HIM IN
PRESCRIBING ANY REGULATION OR ORDER UNDER THIS ACT, OR IN THE
ADMINISTRATION AND ENFORCEMENT OF THIS ACT AND REGULATIONS, ORDERS, AND
PRICE SCHEDULES THEREUNDER. 

     .         .         .         .       . 

"(C)  FOR THE PURPOSE OF OBTAINING ANY INFORMATION UNDER SUBSECTION
(A), THE ADMINISTRATOR MAY BY SUBPENA REQUIRE ANY OTHER PERSON TO
APPEAR AND TESTIFY OR TO APPEAR AND PRODUCE DOCUMENTS, OR BOTH, AT ANY
DESIGNATED PLACE. 

     .     .         .         .         . 

"(G)  NO PERSON SHALL BE EXCUSED FROM COMPLYING WITH ANY REQUIREMENTS
UNDER THIS SECTION BECAUSE OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION,
BUT THE IMMUNITY PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF FEBRUARY
11, 1893(U.S.C., 1934 EDITION, TITLE 49, SEC. 46), SHALL APPLY WITH
RESPECT TO ANY INDIVIDUAL WHO SPECIFICALLY CLAIMS SUCH PRIVILEGE." 

THE COMPULSORY TESTIMONY ACT OF FEBRUARY 11, 1893, 27 STAT. 443, 49
U.S.C. SEC. 46, PROVIDES: 

"THAT NO PERSON SHALL BE EXCUSED FROM ATTENDING AND TESTIFYING OR
FROM PRODUCING BOOKS, PAPERS, TARIFFS, CONTRACTS, AGREEMENTS AND
DOCUMENTS BEFORE THE INTERSTATE COMMERCE COMMISSION, OR IN OBEDIENCE TO
THE SUBPOENA OF THE COMMISSION,  ...  ON THE GROUND OR FOR THE REASON
THAT THE TESTIMONY OR EVIDENCE, DOCUMENTARY OR OTHERWISE, REQUIRED OF
HIM, MAY TEND TO CRIMINATE HIM OR SUBJECT HIM TO A PENALTY OR
FORFEITURE.  BUT NO PERSON SHALL BE PROSECUTED OR SUBJECTED TO ANY
PENALTY OR FORFEITURE FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER OR
THING, CONCERNING WHICH HE MAY TESTIFY, OR PRODUCE EVIDENCE,
DOCUMENTARY OR OTHERWISE, BEFORE SAID COMMISSION, OR IN OBEDIENCE TO
ITS SUBPOENA,  ...  PROVIDED, THAT NO PERSON SO TESTIFYING SHALL BE
EXEMPT FROM PROSECUTION AND PUNISHMENT FOR PERJURY COMMITTED IN SO
TESTIFYING." 

PETITIONER'S PLEA OF IMMUNITY AROSE OUT OF HIS TESTIFYING BEFORE AN
EXAMINER OF THE OFFICE OF PRICE ADMINISTRATION IN RESPONSE TO SUBPOENAS
ISSUED BY THAT OFFICE.  IN AUGUST, 1945, INVESTIGATORS OF THE WAR
PRODUCTION BOARD BEGAN AN INQUIRY INTO THE TRANSACTIONS OF DAISART
SPORTSWEAR, INC. TWO SUBPOENAS WERE ISSUED BY THE OFFICE OF PRICE
ADMINISTRATION SUMMONING PETITIONER INDIVIDUALLY AND AS AN OFFICER OF
DAISART TO APPEAR BEFORE AN OFFICIAL OF THE OFFICE OF PRICE
ADMINISTRATION.  THE SUBPOENAS DIRECTED PETITIONER TO PRODUCE ALL
RECORDS AND DOCUMENTS "PERTAINING TO THE PURCHASE, SALE, MANUFACTURE,
FABRICATION AND/OR FINISHING PIECE GOODS, MATERIALS, FABRICS FROM
JANUARY 1, 1945, UP TO THE PRESENT TIME."  ON APRIL 30, 1946, PURSUANT
TO THE SUBPOENAS, PETITIONER APPEARED WITH COUNSEL BEFORE AN EXAMINER
OF THE O.P.A. AFTER A RULING, UNCHALLENGED BY RESPONDENT, THAT THE
APPEARANCE WAS UNDER THE COMPULSION OF A VALID SUBPOENA, PETITIONER WAS
SWORN IN AS A WITNESS AND ADVISED ERRONEOUSLY THAT HE COULD NOT BE
COMPELLED TO MAKE ANY SELF-INCRIMINATING STATEMENTS AND FURTHER ADVISED
THAT HE HAD CERTAIN CONSTITUTIONAL GUARANTEES.  THIS WAS AN OBVIOUS
REFERENCE TO THE FIFTH AMENDMENT'S PROTECTION AGAINST SELF
INCRIMINATION AS RECOGNIZED BY SEC. 202 OF THE EMERGENCY PRICE CONTROL
ACT OF 1942, QUOTED ABOVE. 

AFTER A FEW QUESTIONS OF A PRELIMINARY NATURE, PETITIONER STATED:  "I
WANT TO CLAIM PRIVILEGE AS TO ANYTHING THAT I SAY."  THEREAFTER, IN
ANSWER TO QUESTIONS BY THE EXAMINER, PETITIONER EXPLAINED THAT THE
RECORDS REQUIRED BY THE SUBPOENAS HAD EITHER BEEN DESTROYED, LOST, OR
MISPLACED.  HE TESTIFIED THAT HE WAS THE SOLE OWNER AND OFFICER OF
DAISART SPORTSWEAR, INC., WHICH UNTIL IT WENT OUT OF BUSINESS IN
OCTOBER, 1945, WAS ENGAGED IN THE MANUFACTURE, PURCHASE, AND SALE OF
TEXTILES AND ALLIED PRODUCTS.  IN CARRYING ON THIS BUSINESS, THE
MATERIAL OUT OF WHICH PRODUCTS WERE MADE WAS OFTEN FURNISHED TO DAISART
BY THE ORGANIZATION, A SO-CALLED MANUFACTURER, FOR WHOM DAISART
CONTRACTED TO MAKE THE PRODUCT.  SMITH THEN TESTIFIED THAT FROM VARIOUS
OPERATIONS DAISART SOLD SURPLUS FABRICS AND TEXTILES; THAT FOR METALS
DISINTEGRATING COMPANY, DAISART MADE BAGS AND THAT FOR CERTAIN
MANUFACTURING OPERATIONS DAISART HAD TO ACQUIRE MATERIALS AND FABRICS. 
HE DENIED THAT DAISART BOUGHT ANY MATERIAL FOR THE SOLE PURPOSE OF
RESELLING IT AND STATED THAT DAISART SOLD ONLY MATERIAL WHICH WAS
SURPLUSAGE FROM ITS VARIOUS OPERATIONS.  AS EXAMPLES OF HIS COMPANY'S
OPERATIONS, PETITIONER SAID THAT DAISART WAS A CONTRACTOR FOR FIVE
COMPANIES WHICH HE SPECIFICALLY NAMED AND FOR MANY OTHERS WHOSE NAMES
HAD SLIPPED HIS MIND, AND THAT DAISART ALSO MANUFACTURED AMMUNITION
BAGS AS A SUBCONTRACTOR FOR METALS DISINTEGRATING COMPANY, WHICH HAD A
PRIME CONTRACT WITH THE GOVERNMENT.  IN REPLY TO THE QUESTION AS TO HOW
DAISART ARRIVED AT ITS SELLING PRICE WITH RESPECT TO THE MATERIAL IT
SOLD, PETITIONER ANSWERED:  "SINCE IT WAS SURPLUS, IT WAS SOLD AT THE
PRICE BILLED TO ME PLUS FREIGHT AND HAULAGE AND LESS DISCOUNT ALLOWED
TO ME." 

PETITIONER GAVE THE NAMES OF "A. STEINMAN & CO.," "L. LAZARUS & CO.,"
AND "SOUTHEASTERN COTTONS" AS THREE OF THE FIRMS FROM WHOM DAISART
PURCHASED MATERIALS AND FABRICS, STATED THAT DAISART RECEIVED INVOICES
FROM THE SUPPLIERS FOR ITS PURCHASES, AND THAT DAISART PAID FOR ITS
PURCHASES BY CHECK AT ALL TIMES.  HE DISCLOSED THE FIDELITY UNION TRUST
COMPANY OF NEWARK, N.J., AS THE BANK WHERE DAISART MAINTAINED ITS
ACCOUNT, AND GAVE THE NAME OF THE ACCOUNTANT WHO HAD THE SOCIAL
SECURITY AND BANK STATEMENTS OF DAISART.  HE TESTIFIED THAT THESE
RECORDS WOULD REFLECT THE TOTAL OVERALL BUSINESS OF DAISART, INCLUDING
THE PURCHASE AND SALE OF ALL MATERIALS.  ACCORDING TO PETITIONER,
DAISART USUALLY RECEIVED THE MATERIAL FROM THE MANUFACTURER WITH WHOM
IT WAS CONTRACTING, AND DAISART MERELY SUPPLIED LABOR AND TRIMMING. 
THE MANUFACTURER DID NOT BILL DAISART FOR THE MATERIAL, BUT SIMPLY
SHIPPED IT FOR USE BY DAISART, WHO IN TURN BILLED THE MANUFACTURER FOR
THE FINISHED GARMENTS.  IT WAS TACITLY UNDERSTOOD THAT IF DAISART COULD
SAVE ANY OF THE MATERIAL, IT COULD DO AS IT PLEASED WITH THAT EXCESS
MATERIAL.  PETITIONER SAID THAT THE WASTE FROM THE MAKING OF AMMUNITION
BAGS APPROXIMATED THE AMOUNT ACTUALLY USED IN THE BAGS, AND THAT METALS
DISINTEGRATING KNEW THIS FACT BUT NEVER MADE ANY CLAIM WITH RESPECT TO
THE WASTE. 

AFTER THE FOREGOING EVIDENCE, THERE OCCURRED THE FOLLOWING COLLOQUY
BETWEEN PETITIONER AND THE EXAMINER: 

"QUESTION (BY O.P.A. EXAMINER):  SO THAT WITH RESPECT TO DAISART
SPORTSWEAR INC., CONTRACTING ACTIVITIES ON AMMUNITION BAG MATERIALS,
WERE SHIPPED BY THE MANUFACTURER WITHOUT BILL? 

"ANSWER (BY PETITIONER):  IT WAS NOT.  METALS DISINTEGRATING COMPANY
BEING A FOREIGN CONCERN AND BEING UNABLE TO FURNISH THIS MATERIAL, THEY
ASKED ME TO PURCHASE MATERIALS FOR THEM.  THEY WERE AWARE THAT I CANNOT
DO THAT WITHOUT PROPER PRIORITIES.  THOSE PRIORITIES WERE FORTHCOMING
IN A BLANKET SUM.  NO STIPULATED AMOUNT AND I WAS FURTHER TOLD TO
MAINTAIN A CONSTANT STOCK FOR ANY ORDERS THEY MAY CALL.  I MEAN DAISART
SPORTSWEAR INC., FOR ANY ORDERS THEY MAY CALL FOR.  THEIR ORDERS CAME
TO ME SOMETIMES DATED AND NEVER IN ANY SET SIZE OR SPECIFIED FORM. 
THEY CHARGED FROM DAY TO DAY.  I THEN WENT ABOUT PURCHASING MATERIAL
FOR THEIR WORK.  WHEN AND IF I HAD A SURPLUS, I WOULD NOTIFY THEM AND
ASK THEM IF THEY HAD ANYTHING IMMEDIATELY ON HAND AS I AM OVERSTOCKED,
AT WHICH TIME THEY TOLD ME THEY HAD NOT AND TO DISPOSE OF IT. 

"QUESTION:  THIS IS A VOLUNTARY STATEMENT.  YOU DO NOT CLAIM IMMUNITY
WITH RESPECT TO THAT STATEMENT? 

"ANSWER:  NO. 

"QUESTION:  I ASSUME THAT ANYTHING YOU TELL US, MR. SMITH, IS SUBJECT
TO VERIFICATION?  YOU STATE THAT AFTER A TIME METALS DISINTEGRATING
COMPANY, ALTHOUGH IT HAD A CONTRACT WITH THE GOVERNMENT, WAS NOT IN A
POSITION TO FURNISH YOU WITH THE MATERIALS NECESSARY FOR DAISART TO
MANUFACTURE THIS ITEM? 

"ANSWER:  RIGHT. 

"QUESTION:  AND THAT BECAUSE OF THAT SITUATION, DAISART WAS REQUIRED
TO OBTAIN PRIORITIES SO THAT DAISART COULD OBTAIN THE MATERIALS AND
THAT IT DID SO? 

"ANSWER: IN A BLANKET AMOUNT. 

"QUESTION:  AND THAT PURSUANT TO THAT PRIORITY, DAISART THEREAFTER
ACQUIRED MATERIALS, SOME OF WHICH WERE USED IN THE MANUFACTURE OF
AMMUNITION BAGS FOR METALS, AND SOME OF IT WAS DISPOSED OF BY DAISART,
IS THAT CORRECT? 

"ANSWER:  YES. 

"QUESTION:  AND THOSE DISPOSALS BY DAISART FORMED A GOOD PART OF THE
SALES OF FABRICS MADE BY DAISART? 

"ANSWER:  THEY DID." 

WHEN THE PROSECUTION DURING THE TRIAL SOUGHT TO INTRODUCE THE
TRANSCRIPT OF THIS TESTIMONY BEFORE THE O.P.A. OFFICIAL, PETITIONER
MOVED FOR A DISMISSAL OF THE INFORMATIONS AND THE INDICTMENT AGAINST
HIM UPON THE GROUND THAT HE WAS GRANTED IMMUNITY FROM PROSECUTION BY
THE PRICE CONTROL ACT OF 1942 FOR THE ACTS CONCERNING WHICH HE WAS
QUESTIONED.  PETITIONER ASSERTED THAT THE HEARING BEFORE THE O.P.A.
OFFICIAL COVERED ESSENTIALLY THE SAME MATTERS WHICH FORMED THE BASIS
FOR THE INFORMATIONS AND THE INDICTMENT.  THE TRIAL JUDGE RESERVED
DECISION ON THE MOTION AND RECEIVED THE TRANSCRIPT OF THE TESTIMONY IN
EVIDENCE AGAINST PETITIONER AND THE CORPORATION.  SUBSEQUENTLY THE
COURT RULED THAT THE TRANSCRIPT WAS NOT ADMISSIBLE AGAINST PETITIONER,
BUT WAS ONLY ADMISSIBLE AGAINST THE DEFENDANT CORPORATION, AND THE JURY
WAS SO INSTRUCTED.  THE TRIAL COURT ALSO OVERRULED THE MOTION FOR A
DISMISSAL OF THE CHARGES AGAINST PETITIONER AND STATED THAT "THE
TESTIMONY DOES NOT PROVE ANY PART OR FEATURE OF THE COMMISSION OF A
CRIME, NOR WILL IT TEND TO A CONVICTION WHEN COMBINED WITH PROOF OF
OTHER CIRCUMSTANCES WHICH OTHERS MAY SUPPLY."  THIS THE TRIAL COURT
THOUGHT WAS THE TEST.  CONVICTION FOLLOWED ON 35 COUNTS OF EACH OF THE
TWO INFORMATIONS AND ON THE INDICTMENT FOR CONSPIRACY.  PETITIONER WAS
SENTENCED TO PAY $10,000 ON EACH COUNT, A TOTAL OF $710,000 IN FINES
AND TO IMPRISONMENT IN SUCH A WAY THAT HE WOULD HAVE THREE YEARS TO
SERVE. 

THE COURT OF APPEALS REVERSED THE CONVICTION OF PETITIONER ON TWELVE
COUNTS OF EACH OF THE TWO INFORMATIONS ON THE GROUND THAT BECAUSE HE
HAD "NOT WAIVED IMMUNITY IN RESPECT TO HIS EARLIER DISCLOSURE THAT A.
STEINAM & CO., L. LAZARUS & CO., AND SOUTHEASTERN COTTONS WERE SELLERS
TO THE CORPORATION, HE CANNOT BE PROSECUTED ON THE COUNTS BASED ON
TRANSACTIONS WITH THOSE COMPANIES."  169 F.2D AT 861.  THESE WERE THE
THREE COMPANIES SPECIFICALLY NAMED BY PETITIONER IN HIS TESTIMONY
BEFORE THE EXAMINER OF THE OFFICE OF PRICE ADMINISTRATION.  THIS
REVERSAL REDUCED THE AMOUNT OF THE FINES IMPOSED UPON PETITIONER BY
$240,000, BUT NOT HIS SENTENCE OF THREE YEARS' IMPRISONMENT.  THE COURT
OF APPEALS AFFIRMED THE REST OF THE SENTENCES ON THE INFORMATIONS AND
THE INDICTMENT.  IT HELD THAT PETITIONER'S CLAIM TO IMMUNITY BY REASON
OF HIS TESTIMONY BEFORE THE EXAMINER WAS CLEAR AND GOOD BUT FOR THE
STATEMENT MADE BY PETITIONER SET OUT ABOVE.  THIS THE COURT THOUGHT WAS
VOLUNTARY AND WAIVED ALL IMMUNITY ON THE FACTS THEREIN STATED AND THAT
THESE WERE THE ESSENTIAL FACTS IN THE CONVICTIONS.  169 F.2D AT 860,
862.  ONE JUDGE DISSENTED IN PART ON THE GROUND THAT BY HIS TESTIMONY
BEFORE THE O.P.A. OFFICIAL PETITIONER HAD ACQUIRED IMMUNITY FROM
PROSECUTION FOR THE TRANSACTIONS CHARGED IN THE INDICTMENT.  BECAUSE OF
THE IMPORTANCE OF THE PROBLEM IN THE ADMINISTRATION OF FEDERAL CRIMINAL
JUSTICE, WE BROUGHT THE CASE HERE BY CERTIORARI.  335 U.S. 882. 

FIRST.  THE EVOLUTION OF CONGRESSIONAL POLICY IN DEALING WITH
IMMUNITY FROM CRIMINAL PROSECUTION IN RETURN FOR EVIDENCE HAS BEEN
ADEQUATELY DISCUSSED RECENTLY BY THIS COURT.  UNITED STATES V. MONIA,
317 U.S. 424(1943), AND SHAPIRO V. UNITED STATES, 335 U.S. 1(1948). 
THROUGH COUNSELMAN V. HITCHCOCK, 142 U.S. 547, IT WAS ESTABLISHED THAT
ABSOLUTE IMMUNITY FROM FEDERAL CRIMINAL PROSECUTION FOR OFFENSES
DISCLOSED BY THE EVIDENCE MUST BE GIVEN A PERSON COMPELLED TO TESTIFY
AFTER CLAIM OF PRIVILEGE AGAINST SELF-INCRIMINATION.  TO MEET THAT
REQUIREMENT CONGRESS AMENDED THE IMMUNITY PROVISIONS OF THE INTERSTATE
COMMERCE ACT, 24 STAT. 383, SEC. 12, THAT PROTECTED A WITNESS FROM USE
AGAINST HIM OF EVIDENCE SO GIVEN IN ANY SUBSEQUENT CRIMINAL PROCEEDING
SO AS TO PROVIDE THAT THE WITNESS SHOULD NOT BE "PROSECUTED  ...  FOR
OR ON ACCOUNT OF ANY TRANSACTION, MATTER OR THING, CONCERNING WHICH HE
MAY TESTIFY  ...  "  P. 141, SUPRA.  THIS REMISSION OF RESPONSIBILITY
FOR CRIMINAL ACTS MET THE "ABSOLUTE" TEST OF THE CONSTITUTIONAL
PROVISION AGAINST SELF-INCRIMINATION.  BROWN V. WALKER, 161 U.S. 591. 
IF A WITNESS COULD NOT BE PROSECUTED ON FACTS CONCERNING WHICH HE
TESTIFIED, THE WITNESS COULD NOT FAIRLY SAY HE HAD BEEN COMPELLED IN A
CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF.  HE MIGHT SUFFER
DISGRACE AND HUMILIATION BUT SUCH UNFORTUNATE RESULTS TO HIM ARE
OUTSIDE OF CONSTITUTIONAL PROTECTION.  ID., P. 598.  CF. PP. 630-631. 
THIS COMPULSORY TESTIMONY STATUTE WAS FURTHER AMENDED IN 1906 TO
PROVIDE THAT THE IMMUNITY SHOULD EXTEND ONLY TO A NATURAL PERSON
TESTIFYING UNDER OATH IN OBEDIENCE TO A SUBPOENA.  34 STAT. 798.  THE
MONIA CASE, SUPRA, DECIDED IN 1943 THAT IT WAS NOT NECESSARY FOR A
WITNESS TO CLAIM HIS PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE
COMPULSORY TESTIMONY STATUTE AS THUS AMENDED.  THIS CONCLUSION WAS
REACHED ON AN INTERPRETATION OF THE IMMUNITY STATUTE, P. 430, DESPITE A
CONTRARY RULE REQUIRING A CLAIM OF PRIVILEGE UNDER THE SELF
INCRIMINATION PROVISION OF THE FIFTH AMENDMENT.  SEE VAJTAUER V.
COMMISSIONER, 273 U.S. 103, 113.  CF. HEIKE V. UNITED STATES, 227 U.S.
131. 

IN THE LIGHT OF THESE DECISIONS ADJUSTING A WITNESS' DUTY OF
TESTIMONY TO HIS CONSTITUTIONAL PROTECTION AGAINST SELF-INCRIMINATION,
CONGRESS HAS BEEN ENABLED, THROUGH THE USE OF THE COMPULSORY TESTIMONY
ACT OF 1893 AS A MODEL, TO LEGISLATE SO AS TO FORCE FROM THE LIPS OF
THE GUILTY TESTIMONY BELIEVED NECESSARY TO ADMINISTER A VARIETY OF
ACTS.  FN5  BY THE DATE OF THE MONIA DECISION, CONGRESS HAD,
FORESIGHTEDLY, ADDED TO THE STANDARD IMMUNITY CLAUSE, DRAWN FROM THE
INTERSTATE COMMERCE ACT, THE PROVISION THAT THE WITNESS MUST CLAIM HIS
PRIVILEGE.  FN6  BY THIS ADDITION THE STATUTE ON COMPULSORY TESTIMONY
AS TO THIS REQUIREMENT WAS PUT ON A PARITY WITH THE CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION.  IT IS SUCH A SUPPLEMENTED
IMMUNITY STATUTE THAT WE ARE CALLED UPON TO APPLY IN THIS CASE. 

PETITIONER WAS COMPELLED TO TESTIFY AT THE EXAMINATION UNDER THE
PRICE CONTROL ACT.  FN7  HE WAS SUBPOENAED AND PUT UNDER OATH.  AT THE
BEGINNING OF THE EXAMINATION, HE RAISED A QUESTION AS TO THE VALIDITY
OF THE SUBPOENA SO AS TO ASSURE HIMSELF THAT HE WAS NOT VOLUNTARILY
PRESENT.  HE PROMPTLY DECLARED:  "I WANT TO CLAIM PRIVILEGE AS TO
ANYTHING THAT I SAY."  IN RESPONSE TO THE EXAMINER'S QUERIES AS TO HIS
AND DAISART'S BUSINESS ACTIVITIES, PETITIONER THEREAFTER MADE THE
STATEMENTS SET OUT AT PP. 142 TO 145, SUPRA.  THESE STATEMENTS AS TO
THE ORGANIZATION OF HIS BUSINESS, HIS USE OF PRIORITIES, HIS SUPPLIERS
AND CUSTOMERS, HIS BANKING CONNECTIONS AND THE METHOD OF COMPUTING THE
SELLING PRICE OF SURPLUS MATERIALS ARE CLEARLY MORE THAN SUGGESTIONS
FROM WHICH IT MIGHT BE IMAGINED EVIDENCE AS TO HIS OPERATIONS COULD BE
OBTAINED.  BROWN V. WALKER, SUPRA, AT 599.  SOME, AT LEAST, OF THE
DISCLOSURES, SUCH AS THE USE OF BLANKET PRIORITIES OF METALS
DISINTEGRATING TO PROCURE TEXTILES AND THE METHOD OF FIXING PRICES ON
SURPLUS SALES, BORE DIRECTLY ON THE SUBSEQUENT CHARGES OF MISUSE OF
PRIORITIES AND THE GOODS OBTAINED THEREBY AS WELL AS THE CHARGE OF
CONSPIRACY TO VIOLATE THE PRICE CONTROL ACT.  THE FACTS BROUGHT OUT IN
HIS EXAMINATION ARE NOT FACTS DISASSOCIATED FROM HIS PROSECUTION AS IN
HEIKE V. UNITED STATES, 227 U.S. 131, BUT IN THE LANGUAGE OF THE
COMPULSORY TESTIMONY ACT ARE PERTINENT TO THE PROSECUTION AND
"CONCERNING WHICH" PETITIONER TESTIFIED.  FN8  THE FACTS WERE LINKS IN
THE CHAIN OF EVIDENCE.  THE GOVERNMENT DOES NOT CONTEST THE CONCLUSION
THAT PART OF THE TESTIMONY BEFORE THE EXAMINER CONCERNS THE CRIMINAL
CHARGES. 

SECOND.  THE GOVERNMENT, HOWEVER, CONTENDS THAT PETITIONER'S IMMUNITY
FROM PROSECUTION ON FACTS CONCERNING WHICH HE WAS COMPELLED TO TESTIFY
WAS WAIVED BY A SUBSEQUENT VOLUNTARY STATEMENT.  THIS STATEMENT AS
GIVEN IN QUESTION AND ANSWER FORM IS SET OUT ABOVE AT P. 144.  FN9
PRIVILEGE CAN BE WAIVED AND WITH THE WAIVER THE STATUTORY IMMUNITY
DISAPPEARS.  FN10  SINCE THE PURPOSE OF THE REMISSION OF PENALTIES IS
TO FORCE OUT EVIDENCE THAT IS PROTECTED BY PRIVILEGE AGAINST SELF
INCRIMINATION, A WAIVER OF THAT PROTECTION MAKES THE TESTIMONY
AVAILABLE FOR PROSECUTION OF THE WITNESS.  NOR DO WE SEE ANY REASON WHY
CLAIM OF PRIVILEGE TO ALL OR ANY PART OF TESTIMONY MAY NOT BE
WITHDRAWN.  ALTHOUGH THE PRIVILEGE AGAINST SELF-INCRIMINATION MUST BE
CLAIMED, WHEN CLAIMED IT IS GUARANTEED BY THE CONSTITUTION.  THEREAFTER
ONLY ABSOLUTE IMMUNITY FROM FEDERAL CRIMINAL PROSECUTION IS SUFFICIENT
TO COMPEL THE DESIRED TESTIMONY.  WAIVER OF CONSTITUTIONAL RIGHTS,
HOWEVER, IS NOT LIGHTLY TO BE INFERRED.  FN11  A WITNESS CANNOT
PROPERLY BE HELD AFTER CLAIM TO HAVE WAIVED HIS PRIVILEGE AND
CONSEQUENT IMMUNITY UPON VAGUE AND UNCERTAIN EVIDENCE. 

IT IS PLAIN HERE THAT PETITIONER RELIED FROM THE BEGINNING OF HIS
EXAMINATION UPON HIS PRIVILEGE.  THE UNITED STATES HAD NOTICE THAT THE
WITNESS SOUGHT PROTECTION AGAINST PROSECUTION FOR ANY FACTS TO WHICH HE
WAS COMPELLED TO TESTIFY.  THE GOVERNMENT HAD THEN TO DECIDE WHETHER TO
PAY THE PRICE TO SECURE THE FACTS OF THE SUSPECTED CRIMINAL OPERATION. 
FN12  JUST BEFORE THE QUESTION THAT OPENED THE COLLOQUY QUOTED AT P.
144, THE EXAMINATION HAD ELICITED THAT DAISART OFTEN CONTRACTED WITH
MANUFACTURERS TO DO WORK ON GOODS BOUGHT AND FURNISHED BY THE
MANUFACTURER.  THEN CAME THE QUESTION ABOVE QUOTED, PP. 143-144, AS TO
THE PRACTICE ON THE AMMUNITIONBAG CONTRACT.  THE ANSWER, WE THINK, WAS
RESPONSIVE.  THEN CAME THE QUESTION:  "THIS IS A VOLUNTARY STATEMENT. 
YOU DO NOT CLAIM IMMUNITY WITH RESPECT TO THAT STATEMENT?"  AND THE
ANSWER, "NO."  WHETHER THE "NO" APPLIED TO THE FIRST OR SECOND SENTENCE
IS NOT KNOWN.  IN VIEW OF THE SPECIFIC CLAIM OF PRIVILEGE, IT SEEMS
UNLIKELY THAT PETITIONER WOULD WAIVE THE PRIVILEGE AND TESTIFY,
VOLUNTARILY AND WITHOUT PROTECTION AGAINST PROSECUTION, AS TO THE
DETAILS OF HIS OPERATIONS WITH METALS DISINTEGRATING, THE SOURCE OF THE
BLANKET PRIORITIES THAT LAY AT THE BASE OF THE CHARGES BY INFORMATION
AND INDICTMENT.  NO QUESTION IS MADE AS TO THE CORRECTNESS OF THE
TRANSCRIPTION.  WITHOUT ANY EFFORT TO CLARIFY THE "NO," THE EXAMINER
WENT AHEAD AND HAD THE WITNESS RESTATE THE SUBSTANCE OF THE LONG ANSWER
QUOTED ON P. 144 WITHOUT ANY FURTHER INTIMATION THAT THE SUBSEQUENT
ANSWERS WERE CONSIDERED BY THE EXAMINER TO BE VOLUNTARY.  FN13  WE DO
NOT THINK UNDER THESE CIRCUMSTANCES THIS EQUIVOCAL "NO" IS A WAIVER OF
THE PREVIOUS DEFINITE CLAIM OF GENERAL PRIVILEGE AGAINST SELF
INCRIMINATION. 

THE TRIAL COURT EXCLUDED THE ENTIRE STATEMENT BEFORE THE EXAMINER,
INCLUDING THE QUESTION JUST DISCUSSED, AS EVIDENCE AGAINST PETITIONER. 
SINCE THAT COURT DID NOT THINK THE STATEMENT CONTAINED TESTIMONY
PROVING ANY PART OR FEATURE OF THE COMMISSION OF A CRIME AND DID NOT
TEND TO A CONVICTION WHEN COMBINED WITH PROOF OF OTHER CIRCUMSTANCES
WHICH OTHERS MIGHT SUPPLY, IT REFUSED THE MOTION FOR A DIRECTED
ACQUITTAL. 

FURTHERMORE, BEFORE THE QUESTION WAS ASKED THE ANSWER TO WHICH THE
GOVERNMENT ARGUES IS A VOLUNTARY STATEMENT, PETITIONER, TESTIFYING
UNDER UNQUESTIONED PRIVILEGE WITH IMMUNITY, GAVE THE INFORMATION THAT
IS DETAILED ABOVE AT PP. 141 TO 143, INCLUSIVE.  WITHOUT RESTATING THE
ENTIRE SUBSTANCE OF THE TESTIMONY, WE THINK THE STATEMENTS CONCERNING
THE NECESSITY OF DAISART TO ACQUIRE FABRICS FOR MANUFACTURING, TOGETHER
WITH INFORMATION AS TO THE NAMES OF THE SUPPLIERS, THE NAME OF
DAISART'S BANK AND AS TO THE MANNER OF DAISART'S RECEIPTS,
DISBURSEMENTS AND SALES PRICES, WERE SUFFICIENT TO GIVE PETITIONER THE
IMMUNITY CLAIMED. 

THIRD.  FINALLY THE GOVERNMENT PRESSES UPON US THE ARGUMENT THAT, AS
TO THE INDICTMENT, THE TESTIMONY PETITIONER GAVE AT THE EXAMINATION
UNDER THE PRICE CONTROL ACT WAS WHOLLY SELF-EXONERATING AND THEREFORE
DID NOT SECURE IMMUNITY FROM PROSECUTION BY THE INDICTMENT.  THE
CONTENTION IS THAT SINCE THE IMMUNITY GRANTED BY SEC. 202(G) OF THE
EMERGENCY PRICE CONTROL ACT WAS AN EXCHANGE FOR THE CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION AND SINCE THIS EVIDENCE IS NOT
INCRIMINATING, IT THEREFORE CANNOT BE USED TO SECURE IMMUNITY FROM
PROSECUTION FOR CONSPIRACY TO VIOLATE THE PRICE CONTROL ACT.  SEE
SHAPIRO V. UNITED STATES, 335 U.S. 1; 8 WIGMORE, EVIDENCE, SEC. 2282. 

THE INDICTMENT WAS FOR CONSPIRACY TO SELL FINISHED PIECE GOODS IN
EXCESS OF PRICES FIXED UNDER THE PRICE CONTROL ACT.  THE POSITION OF
THE GOVERNMENT IS THAT THE ONLY TESTIMONY RELATING TO THE CHARGE OF THE
INDICTMENT IS THAT PETITIONER TESTIFIED THAT HE SOLD THE GOODS AT
PRICES WITHIN THE ALLOWABLE LIMITS.  FN14  BUT THE INDICTMENT ALSO
CHARGED AS A PART OF THE CONSPIRACY A PLAN THROUGH FALSE INVOICES TO
SECURE PAYMENTS FOR THE GOODS BY CHECKS TO FICTITIOUS PERSONS WHICH THE
CONSPIRATORS CASHED. 

A GLANCE AT THE DETAILS OF THE TESTIMONY SET OUT AT PP. 142 THROUGH
145, SUPRA, WILL DEMONSTRATE THAT PETITIONER'S TESTIMONY AT THE
EXAMINATION WENT BEYOND THE EXCULPATORY LANGUAGE CONCERNING THE SALE
PRICE.  PETITIONER TESTIFIED AS TO THE BUSINESS ORGANIZATION OF
DAISART, ITS ACQUISITION OF MATERIALS THROUGH THE PRIORITIES FURNISHED
BY METALS DISINTEGRATING FROM NAMED FIRMS ON THEIR INVOICES AND ITS
PAYMENT FOR THESE GOODS AT ALL TIMES BY CHECK.  DAISART'S BANK WAS
NAMED.  SINCE THE ARGUMENT ON THIS POINT RELATES ONLY TO EXCULPATORY
STATEMENTS AND NOT TO WAIVERS, IT IS ALSO TO BE NOTED THAT ALL
TESTIMONY CONTAINED IN THE ANSWER PRINTED ON P. 144, ABOVE, IS TO BE
TAKEN INTO CONSIDERATION.  CERTAINLY MANY OF THESE DISCLOSURES
FURNISHED LEADS THAT COULD HAVE UNCOVERED EVIDENCE OF THE UNLAWFUL
CONSPIRACY CHARGED IN THE INDICTMENT.  PETITIONER TESTIFIED CONCERNING
TRANSACTIONS, MATTERS AND THINGS SUBSTANTIALLY CONNECTED WITH PARTS OF
THE CONSPIRACY FOR WHICH HE WAS INDICTED - FOR EXAMPLE, THE TESTIMONY
THAT HE BOUGHT MATERIAL UNDER INVOICE FROM A NAMED SUPPLIER AND PAID
FOR IT BY CHECK ON A NAMED BANK.  THIS EVIDENCE, BEING SUBSTANTIALLY
CONNECTED WITH THE CONSPIRACY, WAS AMPLE TO GIVE IMMUNITY FROM THE
CONSPIRACY PROSECUTION.  THE COMPULSORY TESTIMONY ACT OF FEBRUARY 11,
1893, GIVES IMMUNITY FROM PROSECUTION ON ACCOUNT "OF ANY TRANSACTION,
MATTER OR THING, CONCERNING WHICH" THE WITNESS IS COMPELLED TO TESTIFY
IN RETURN FOR SUCH EVIDENCE.  CONSEQUENTLY, WE NEED NOT DECIDE WHETHER,
IF ONLY EXCULPATORY EVIDENCE WAS GIVEN CONCERNING MATTERS PERTINENT TO
THE CRIMINAL CHARGE, THE STATUTE WOULD GRANT IMMUNITY.  REVERSED. 

FN1  56 STAT. 176, 177; 58 STAT. 827; 60 STAT. 868.    FN2  32
C.F.R., CUM. SUPP. SECS. 944.1-944.21; 32 C.F.R., CUM. SUPP. SEC.
944.23. 

FN3  56 STAT. 23 ET SEQ., AS AMENDED, 56 STAT. 767, 58 STAT. 632, 59
STAT. 306, 60 STAT. 664. 

FN4  A FOOTNOTE TO THE OPINION OF THE COURT OF APPEALS, 169 F.2D 856
AT 859, STATES:  "THESE TERMS ARE EXPLAINED IN UNITED STATES V.
BRADFORD, 2 CIR., 160 F.2D 729, CERTIORARI DENIED 331 U.S. 829, 67 S.
CT. 1351.  A PREFERENCE RATING IS APPLIED BY THE ORIGINAL RECIPIENT TO
OBTAIN COMMODITIES FROM A SUPPLIER WHO THEN EXTENDS (USES) THE RATING
TO SECURE THE NEEDED COMMODITIES FROM SUBSUPPLIERS." 

FN5  SEE SHAPIRO V. UNITED STATES, SUPRA, P. 6; HEIKE V. UNITED
STATES, 227 U.S. 131, 142.    FN6  UNITED STATES V. MONIA, SUPRA, AT
429; CF. P. 442, ET SEQ. 

FN7  UNITED STATES V. MONIA, SUPRA, AT 429. 

FN8  IN THE HEIKE CASE, THE ACCUSED HAD TESTIFIED IN A GRAND JURY
INVESTIGATION AS TO VIOLATIONS OF THE SHERMAN ACT.  SUCH TESTIMONY DID
NOT EARN THE IMMUNITY OF THE ACT OF FEBRUARY 25, 1903, 32 STAT. 854,
904, ON A SUBSEQUENT INDICTMENT FOR A FRAUD ON THE REVENUE BY THE
SECRET INTRODUCTION OF SPRINGS IN SCALES TO CAUSE THEM TO INDICATE LESS
THAN THE ACTUAL WEIGHT.  A TABLE OF ANNUAL MELTINGS OF SUGAR HAD BEEN
GIVEN AT THE MONOPOLY INVESTIGATION BY HEIKE.  THIS COURT SAID:  "THE
TABLE OF MELTINGS BY THE YEAR HAD NO BEARING ON THE FRAUDS, AS IT WAS
NOT CONFINED TO THE SUGAR FRAUDULENTLY WEIGHED AND IT DOES NOT APPEAR
HOW THE NUMBER OF POUNDS WAS MADE UP.  THE MERE FACT THAT A PART OF THE
SUGAR EMBRACED IN THE TABLE WAS THE SUGAR FALSELY WEIGHED DID NOT MAKE
THE TABLE EVIDENCE CONCERNING THE FRAUDS.  THE SAME CONSIDERATION SHOWS
THAT IT DID NOT TEND TO INCRIMINATE THE WITNESS.  IT NEITHER LED NOR
COULD HAVE LED TO A DISCOVERY OF HIS CRIME."  227 U.S. AT 143. 

SEE UNITED STATES V. MONIA, 317 U.S. 424, 430; BROWN V. WALKER, 161
U.S. 591, 599; UNITED STATES V. WEISMAN, 111 F.2D 260; UNITED STATES V.
MOLASKY, 118 F.2D 128, 134. 

FN9  THE GOVERNMENT'S ARGUMENT IS THAT VOLUNTARY STATEMENTS ARE NOT
PROTECTED BY PRIVILEGE AND DO NOT EARN IMMUNITY.  IT IS SUGGESTED, TOO,
THAT THE ANSWERS WERE NOT RESPONSIVE TO THE QUESTION AND THAT A WITNESS
CANNOT VOLUNTEER FACTS AND SECURE IMMUNITY ANY MORE THAN HE CAN SECURE
REMISSION OF PENALTIES BY APPEARING AS A WITNESS WITHOUT COMPULSION. 
FURTHER, THE GOVERNMENT RELIES UPON THE VOLUNTARY CHARACTER OF THE
ABOVE STATEMENT AS A WAIVER OF PRIVILEGE, NOT ONLY AS TO FACTS INCLUDED
IN THE STATEMENT BUT ALSO AS TO SIMILAR FACTS THAT THE WITNESS HAD
DISCLOSED PREVIOUSLY UNDER COMPULSION AFTER CLAIM OF PRIVILEGE.  THIS
POSITION IS BASED ON THE OPINION OF THE COURT OF APPEALS, WHERE IT WAS
SAID:  "EVEN WHERE THIS TESTIMONY REPEATED PREVIOUS ANSWERS WHICH WOULD
HAVE BEEN SUBJECT TO THE WITNESS' INITIAL GENERAL CLAIM OF IMMUNITY, WE
SEE NO REASON WHY A WITNESS CANNOT QUALIFY AND LIMIT HIS CLAIM AS THE
EXAMINATION PROCEEDS, JUST AS HE CAN MAKE NEW CLAIMS AS TO ISSUES HE
HAS NOT WAIVED."  169 F.2D AT 861. 

FN10  RAFFEL V. UNITED STATES, 271 U.S. 494, 496, AND CASES CITED;
VAJTAUER V. COMMISSIONER, 273 U.S. 103, 113; UNITED STATES V. MONIA,
317 U.S. 424, 427; JOHNSON V. UNITED STATES, 318 U.S. 189, 195. 

FN11  HODGES V. EASTON, 106 U.S. 408, 412; OHIO BELL TEL. CO. V.
COMM'N, 301 U.S. 292, 306; AETNA INS. CO. V. KENNEDY, 301 U.S. 389,
394; JOHNSON V. ZERBST, 304 U.S. 458, 464. 

FN12  UNITED STATES V. MONIA, 317 U.S. 424, 430. 

FN13  COMPARE UNITED STATES V. ST. PIERRE, 128 F.2D 979, 980:  "NOR
IS IT MATERIAL THAT APPELLANT STATED AT SEVERAL POINTS THAT HE HAD
COMMITTED NO FEDERAL CRIME; SUCH A CONTRADICTION, ESPECIALLY BY A
NERVOUS OR EXCITABLE WITNESS WOULD NOT OVERCOME A CLEAR CLAIM OF
PRIVILEGE IF HE WAS OTHERWISE ENTITLED TO THE PRIVILEGE." 

FN14  THE TESTIMONY REFERRED TO IS AS FOLLOWS: 

"QUESTION:  CAN YOU TELL ME HOW DAISART SPORTSWEAR INC., ARRIVED AT
ITS SELLING PRICE WITH RESPECT TO THE ITEMS THAT IT SOLD? 

"ANSWER:  SINCE IT WAS SURPLUS, IT WAS SOLD AT THE PRICE BILLED TO ME
PLUS FREIGHT AND HAULAGE AND LESS DISCOUNT ALLOWED TO ME. 

"QUESTION:  IN OTHER WORDS, DAISART SPORTSWEAR INC., SOLD AT COST
PLUS FREIGHT LESS ANY DISCOUNTS, CASH OR OTHERWISE, RECEIVED BY DAISART
SPORTSWEAR INC.? 

"ANSWER:  CORRECT." 
..END :






















EMPRESA SIDERURGICA V. MERCED CO., 337 U.S. 154 


NO. 327.  ARGUED FEBRUARY 9, 1949.  - DECIDED MAY 31, 1949.  - 32 CAL.2D
68, 194 P.2D 527, AFFIRMED. 


A CEMENT PLANT IN CALIFORNIA WAS SOLD TO A FOREIGN PURCHASER FOR
EXPORT.  AN EXPORT LICENSE WAS OBTAINED AND A LETTER OF CREDIT IN FAVOR
OF THE SELLER DEPOSITED HERE.  TITLE PASSED AND POSSESSION WAS TAKEN
FOR THE PURCHASER.  A COMMON CARRIER WAS EMPLOYED TO DISMANTLE THE
PLANT AND PREPARE IT FOR SHIPMENT.  AS THE DISMANTLING PROCEEDED,
SHIPMENTS WERE LABELED WITH THE PURCHASER'S NAME AS CONSIGNEE AND
DELIVERED TO A RAIL CARRIER.  WHEN 12% HAD BEEN SHIPPED, 10% HAD BEEN
PREPARED FOR SHIPMENT, 34% HAD BEEN DISMANTLED BUT NOT PREPARED FOR
SHIPMENT AND 44% HAD NOT BEEN DISMANTLED, A MUNICIPALITY, ACTING UNDER
A CALIFORNIA STATUTE, LEVIED A PERSONAL PROPERTY TAX ON THE PORTION
WHICH HAD NOT ACTUALLY BEEN SHIPPED.  HELD:  THIS WAS NOT A TAX ON AN
EXPORT CONTRARY TO ART. I, SEC. 10, CL. 2 OF THE CONSTITUTION.  PP. 155
157. 

(A)  THE PROCESS OF EXPORTATION BEGINS UPON ENTRANCE OF THE ARTICLES
INTO THE EXPORT STREAM.  P. 157. 

(B)  IT IS NOT ENOUGH THAT ON THE TAX DATE THERE WAS A PURPOSE AND
PLAN TO EXPORT THE PROPERTY; NOR THAT IN DUE COURSE THE PLAN WAS FULLY
EXECUTED.  P. 157. 

(C)  THE FACT THAT THE DISMANTLER WAS A LICENSED CARRIER FOR
INTERSTATE AND FOREIGN COMMERCE AND THAT ITS EMPLOYMENT INCLUDED THE
LOADING OF THE PROPERTY ON RAILROAD CARS FOR SHIPMENT TO THE SEABOARD
DOES NOT HERE REQUIRE A DIFFERENT RESULT.  P. 157. 

EMPRESA SIDERURGICA, S.A., ET AL. V. COUNTY OF MERCED ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

IN A SUIT FOR REFUND OF A MUNICIPAL PERSONAL PROPERTY TAX PAID UNDER
PROTEST, A STATE COURT GRANTED JUDGMENT FOR THE PLAINTIFF.  THE STATE
SUPREME COURT REVERSED.  32 CAL.2D 68, 194 P.2D 527.  ON APPEAL TO THIS
COURT, AFFIRMED, P. 157. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THERE WAS A CEMENT PLANT IN MERCED COUNTY, CALIFORNIA, WHICH WAS SOLD
TO PETITIONER - A CORPORATION OF COLOMBIA - FOR EXPORT TO SOUTH
AMERICA.  AN EXPORT LICENSE WAS OBTAINED AND A LETTER OF CREDIT IN
FAVOR OF THE SELLER DEPOSITED HERE.  TITLE PASSED AND POSSESSION WAS
TAKEN FOR THE PURCHASER.  A COMPANY, WHICH WAS A COMMON CARRIER, WAS
EMPLOYED TO DO THE DISMANTLING AND PACKAGING FOR SHIPMENT.  AS THE
DISMANTLING PROCEEDED, SHIPMENTS WERE LABELED WITH APPELLANT'S NAME AS
CONSIGNEE AND DELIVERED TO A RAIL CARRIER. 

RESPONDENT, ACTING UNDER A CALIFORNIA STATUTE,  FN1  LEVIED A
PERSONAL PROPERTY TAX ON THE PROPERTY FOR THE TAX YEAR 1945-1946.  THE
TAX DATE WAS MARCH 5, 1945.  ON THAT DATE 12 PER CENT OF THE PLANT HAD
BEEN SHIPPED OUT OF THE COUNTY.  THAT PORTION WAS RELIEVED OF THE TAX. 
THE BALANCE WAS TAXED.  THAT INCLUDED THE 10 PER CENT WHICH HAD BEEN
DISMANTLED AND CRATED OR PREPARED FOR SHIPMENT, 34 PER CENT WHICH HAD
BEEN DISMANTLED BUT NOT CRATED OR PREPARED FOR SHIPMENT, AND 44 PER
CENT WHICH HAD NOT BEEN DISMANTLED.  BUT BEFORE THE END OF JANUARY,
1946, ALL THE PROPERTY HAD BEEN SHIPPED BY RAIL TO A PORT AND WAS EN
ROUTE TO SOUTH AMERICA BY OCEAN CARRIER. 

ARTICLE I, SEC. 10, CL. 2 OF THE CONSTITUTION PROVIDES IN PART THAT,
"NO STATE SHALL, WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY IMPOSTS
OR DUTIES ON IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY
NECESSARY FOR EXECUTING IT'S INSPECTION LAWS  ...  "  APPELLANT CLAIMED
THAT THIS TAX WAS LAID ON AN EXPORT AND WAS THEREFORE
UNCONSTITUTIONAL.  IT PAID THE TAX UNDER PROTEST AND BROUGHT THIS SUIT
TO RECOVER IT.  THE TRIAL COURT, HOLDING THAT THE ENTIRE PLANT WAS AN
EXPORT ON THE TAX ASSESSMENT DAY, GRANTED JUDGMENT FOR APPELLANT.  THE
SUPREME COURT OF CALIFORNIA REVERSED.  32 CAL.2D 68, 194 P.2D 527.  THE
CASE IS HERE ON APPEAL.  28 U.S.C. SEC. 1257(2). 

"  ...  GOODS DO NOT CEASE TO BE PART OF THE GENERAL MASS OF PROPERTY
IN THE STATE, SUBJECT, AS SUCH, TO ITS JURISDICTION, AND TO TAXATION IN
THE USUAL WAY, UNTIL THEY HAVE BEEN SHIPPED, OR ENTERED WITH A COMMON
CARRIER FOR TRANSPORTATION TO ANOTHER STATE, OR HAVE BEEN STARTED UPON
SUCH TRANSPORTATION IN A CONTINUOUS ROUTE OR JOURNEY."  COE V. ERROL,
116 U.S. 517, 527.  THAT TEST WAS FASHIONED TO DETERMINE THE VALIDITY
UNDER THE COMMERCE CLAUSE OF A NONDISCRIMINATORY STATE TAX.  BUT AS WE
NOTED IN RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69, 79, IT IS
EQUALLY APPLICABLE TO CASES ARISING EITHER UNDER ART. I, SEC. 10, CL.
2(THE IMPORT-EXPORT CLAUSE) OR UNDER ART. I, SEC. 9, CL. 5, WHICH
PROHIBITS CONGRESS FROM LAYING ANY TAX ON "ARTICLES EXPORTED FROM ANY
STATE."  FN2 

UNDER THAT TEST IT IS NOT ENOUGH THAT THERE IS AN INTENT TO EXPORT,
OR A PLAN WHICH CONTEMPLATES EXPORTATION, OR AN INTEGRATED SERIES OF
EVENTS WHICH WILL END WITH IT.  SEE TURPIN V. BURGESS, 117 U.S. 504;
CORNELL V. COYNE, 192 U.S. 418.  THE TAX IMMUNITY RUNS TO THE PROCESS
OF EXPORTATION AND THE TRANSACTIONS AND DOCUMENTS EMBRACED IN IT.
FAIRBANK V. UNITED STATES, 181 U.S. 283; UNITED STATES V. HVOSLEF, 237
U.S. 1; THAMES & MERSEY INS. CO. V. UNITED STATES, 237 U.S. 19. 
DELIVERY OF PACKAGES TO AN EXPORTING CARRIER FOR SHIPMENT ABROAD
(SPALDING & BROS. V. EDWARDS, 262 U.S. 66) AND THE DELIVERY OF OIL INTO
THE HOLD OF THE SHIP FURNISHED BY THE FOREIGN PURCHASER TO CARRY THE
OIL ABROAD (RICHFIELD OIL CORP. V. STATE BOARD, SUPRA) HAVE BEEN HELD
SUFFICIENT.  IT IS THE ENTRANCE OF THE ARTICLES INTO THE EXPORT STREAM
THAT MARKS THE START OF THE PROCESS OF EXPORTATION.  THEN THERE IS
CERTAINTY THAT THE GOODS ARE HEADED FOR THEIR FOREIGN DESTINATION AND
WILL NOT BE DIVERTED TO DOMESTIC USE.  NOTHING LESS WILL SUFFICE. 

SO IN THIS CASE IT IS NOT ENOUGH THAT ON THE TAX DATE THERE WAS A
PURPOSE AND PLAN TO EXPORT THIS PROPERTY.  NOR IS IT SUFFICIENT THAT IN
DUE COURSE THAT PLAN WAS FULLY EXECUTED.  PART OF THE PLANT THAT IS
TAXED WAS DISMANTLED, BUT IT HAD NOT BEEN DELIVERED TO ANY CARRIER FOR
EXPORT OR OTHERWISE STARTED ON ITS JOURNEY ON THE TAX DATE.  IT MIGHT
STILL HAVE BEEN DIVERTED INTO THE DOMESTIC MARKET.  THE FACT THAT ANY
SUCH DIVERSION WOULD ENTAIL A BREACH OF CONTRACT, THAT A PART OF THE
PLANT HAD ALREADY STARTED ON ITS EXPORT JOURNEY, THAT AN EXPORT LICENSE
HAD BEEN OBTAINED AND A LETTER OF CREDIT DEPOSITED IN THIS COUNTRY
INCREASES THE EXPECTATION ON THE TAX DATE THAT EXPORTATION OF THE
ENTIRE PLANT WOULD EVENTUATE.  BUT THAT PROSPECT, NO MATTER HOW BRIGHT,
DOES NOT START THE PROCESS OF EXPORTATION.  ON THE TAX DATE THE
MOVEMENT TO FOREIGN SHORES HAD NEITHER STARTED NOR BEEN COMMITTED. 

SOME RELIANCE IS APPARENTLY PLACED ON THE FACT THAT THE DISMANTLER
WAS A LICENSED CARRIER FOR INTERSTATE AND FOREIGN COMMERCE AND THAT ITS
EMPLOYMENT INCLUDED THE LOADING OF THE PROPERTY ON RAILROAD CARS FOR
SHIPMENT TO THE SEABOARD.  BUT THE DISMANTLER HAD NOT IN THIS CASE
STARTED THE MOVEMENT OF THE PROPERTY TO THE RAIL CARRIER.  HENCE WE
NEED NOT DETERMINE WHETHER THAT INTERMEDIATE TRANSPORTATION WOULD BE
PART OF THE EXPORT PROCESS.  AFFIRMED. 

FN1  REV. AND TAX.  CODE (DEERING, 1939), DIV. I, SECS. 103, 106,
201, 202(E), 405. 

FN2  THE MEANING OF "EXPORT" IS THE SAME UNDER THE TWO CLAUSES.  SEE
RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69, 83 AND CASES CITED. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THOUGH FIGURES OF SPEECH MAY AID ANALYSIS, THEY DO NOT DISPENSE WITH
THE NEED FOR IT.  WHEN A STATE SEEKS TO TAX WHAT IS TO LEAVE THE UNITED
STATES, WE MAY AGREE THAT ITS PRIVILEGE TO DO SO CEASES WHEN THE EXPORT
ENTERS "THE EXPORT STREAM."  BUT THE PROBLEM FOR DECISION IS TO
DETERMINE WHEN THAT POINT HAS BEEN REACHED.  THE EXPORT-IMPORT CLAUSE
OF THE CONSTITUTION (ART. I, SEC. 10) EMBODIES ONE PHASE OF THE
ACCOMMODATION BETWEEN THE STATES AND THE UNION; IT CAN BE APPLIED ONLY
BY CONSIDERING THE BEARING OF A PARTICULAR EXERTION OF STATE POWER ON
THE FULFILLMENT OR FRUSTRATION OF ITS PURPOSE.  A MECHANISTIC FORMULA,
WHETHER DERIVED FROM PHRASES IN COE V. ERROL, 116 U.S. 517, OR
ELSEWHERE CULLED, ADVANCES US LITTLE TOWARD THE SOLUTION OF SUCH A
CONCRETE PROBLEM. 

THE CASE BEFORE US IS PECULIARLY ILL-FITTED FOR MECHANICAL
DISPOSITION; IT PRESENTS UNUSUAL CIRCUMSTANCES GIVING RISE TO UNUSUAL
CONTENTIONS.  IT INVOLVES THE SALE TO A COLOMBIAN PURCHASER OF WHAT THE
CONTRACT OF SALE DESCRIBES AS "ALL MACHINERY, EQUIPMENT, REMOVABLE
STRUCTURES, REMOVABLE FACILITIES, SPARE PARTS, SUPPLIES AND
MISCELLANEOUS ITEMS COMPRISING" THE YOSEMITE PORTLAND CEMENT PLANT
LOCATED AT MERCED, CALIFORNIA, BUT "EXCLUDING THE LAND UPON WHICH THE
PLANT IS SITUATED" AND VARIOUS OTHER SPECIFIED ITEMS.  THE APPELLANT
URGES THAT THE OBJECTS OF THIS SALE, WHICH ARE COLLECTIVELY REFERRED TO
BY THE CONTRACT AS "THE CEMENT PLANT," SHOULD BE REGARDED AS
INTERDEPENDENT PARTS OF AN ORGANIC WHOLE LIKE A 200-INCH TELESCOPE OR A
CYCLOTRON.  SINCE NO SUCH PART HAS A SEPARATE USEFULNESS COMPARABLE TO
ITS USEFULNESS AS A SUPPORTING MEMBER OF THE STRUCTURE OR AS A LINK IN
THE PRODUCTIVE PROCESS FOR WHICH THE STRUCTURE IS DESIGNED, SHIPMENT OF
PART - IN THIS CASE 14 OF AN EVENTUAL TOTAL OF 123 CARLOADS - MAKES
VIRTUALLY CERTAIN THAT THE REST WILL FOLLOW.  IN THE CASE OF SUCH AN
EXPORT, SO RUNS THE ARGUMENT, IT IS A DEGREE OF CERTAINTY FULLY
EQUIVALENT TO THE CERTAINTY MARKED BY DELIVERY TO A COMMON CARRIER OF A
BULK CARGO, LIKE OIL OR GRAIN OR TIMBER, FOR WHATEVER PART OF A CARGO
OF THE LATTER SORT HAS NOT ACTUALLY LEFT THE COUNTRY CAN EVEN THEN BE
DIVERTED AND SEPARATELY SOLD WITHOUT LOSS IN VALUE EITHER TO THE
DIVERTED OR TO THE EXPORTED PART.  IT IS THE DEGREE OF CERTAINTY,
MOREOVER, AND NOT CONFORMITY TO A PRESCRIBED RITUAL LIKE DELIVERY TO A
CARRIER, THAT IS SIGNIFICANT: 

"THE CERTAINTY THAT THE GOODS ARE HEADED TO SEA AND THAT THE PROCESS
OF EXPORTATION HAS STARTED MAY NORMALLY BE BEST EVIDENCED BY THE FACT
THAT THEY HAVE BEEN DELIVERED TO A COMMON CARRIER FOR THAT PURPOSE. 
BUT THE SAME DEGREE OF CERTAINTY MAY EXIST THOUGH NO COMMON CARRIER IS
INVOLVED."  RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69, 82. 

THE CASE WAS SUBMITTED TO THE SUPERIOR COURT OF MERCED COUNTY ON AN
AGREED STATEMENT OF FACTS WHICH LEAVES IN DOUBT WHETHER THE ITEMS
COMPRISING THE "CEMENT PLANT" WERE ACTUALLY INTERDEPENDENT, AS
APPELLANT CONTENDS, OR CONSISTED MERELY OF A COLLECTION OF MACHINES AND
OTHER PIECES OF EQUIPMENT WHICH COULD HAVE BEEN INDIVIDUALLY INSTALLED
WITHOUT LOSS OF USEFULNESS IN ANY OTHER CEMENT PLANT.  TENDING TO
ESTABLISH APPELLANT'S POSITION ARE PROVISIONS OF THE DISMANTLING
CONTRACT WHICH INDICATE THAT THE EXISTING STRUCTURE WAS TO BE CAREFULLY
TAKEN APART LIKE A CHINESE PUZZLE SO THAT IT COULD BE FITTED TOGETHER
AGAIN IN COLOMBIA EXACTLY THE WAY IT WAS BEFORE.  "CONTRACTOR SHALL
TAKE AT LEAST ONE PHOTOGRAPH OF EACH MACHINE OR PIECE OF EQUIPMENT
BEFORE DISMANTLING SAID MACHINE OR PIECE OF EQUIPMENT, AND SHALL ALSO
TAKE AT LEAST ONE PHOTOGRAPH AFTER SUCH MACHINE OR PIECE OF EQUIPMENT
IS DISMANTLED."  "ALL SEPARATIONS SHALL BE MADE AT THE POINT OF
JOINDER, AND THERE SHALL BE NO CUTTING OR DISASSEMBLING OF ANY PART OF
THE CEMENT PLANT WHICH WILL HAVE AS ITS EFFECT THE WEAKENING OF THE
STRUCTURE OR PARTS WHEN SUCH STRUCTURE OR PARTS ARE REASSEMBLED  ...  "
"THE CONTRACTOR SHALL MATCH-MARK ALL PARTS OF THE PLANT AND EQUIPMENT
...  " 

TENDING TO LOOK THE OTHER WAY IS AN ITEMIZED LIST OF ALL THE ITEMS TO
BE EXPORTED WHICH WAS ATTACHED TO THE EXPORT LICENSE ISSUED TO
APPELLANT BY THE WAR PRODUCTION BOARD.  THOSE ITEMS, RANGING FROM
THOUSAND-TON KILNS AND LOCOMOTIVES TO FRICTION TAPE, SEEM TO BE THINGS
OF A SORT WHICH ARE INDEPENDENTLY USEFUL; EACH IS ASSIGNED A DOLLAR
VALUE AND THE TOTAL OF ALL THESE SEPARATE VALUES EXACTLY EQUALS THE
SALE PRICE OF THE "PLANT."  APPELLEE INSISTS, MOREOVER, THAT SO MANY
PARTS OF THE ORIGINAL PLANT WERE EXCEPTED FROM THE CONTRACT OF SALE
THAT WHAT WAS SOLD CANNOT BE CONSIDERED AN ORGANIC UNIT. 

THE SUPERIOR COURT RESOLVED THIS ISSUE OF FACT IN FAVOR OF THE
INTERPRETATION URGED BY APPELLANT AND REACHED A CONCLUSION BASED ON
THAT INTERPRETATION: 

"I THINK THAT THE PAYMENT FOR THE PROPERTY AND PROCEEDING TO CHANGE
IT FROM PARTS IN PLACE OF A COMPLETE BUILDING, INTO A MASS OF
DISCONNECTED MATERIALS MADE THE COMPLETION OF THE EXPORTATION
ECONOMICALLY IMPERATIVE.  THIS WAS NOT A MERE PREPARATION OF THE PLANT
FOR EXPORTATION; BY SUCH ACTION AND CHANGE THE PARTS HAD 'BEEN STARTED
UPON SUCH TRANSPORTATION' WITH THE DEGREE OF CERTAINTY DEMANDED BY COE
VS.  ERROL AND THE MANY CASES WHICH HAVE ENDORSED IT.  ... 

"IF THE EXPORTATION OF THE MATERIALS OF THE PLANT WAS NOT BEFORE
ASSURED, THAT BECAME CERTAIN WHEN THE TWELVE PER CENT OF THE CORPUS OF
THE BUILDING HAD BEEN SENT ABROAD.  ... WHATEVER POSSIBILITY THERE
MIGHT HAVE BEEN THAT AFTER PLAINTIFF HAD TORN THE PLANT DOWN AND
CARRIED THE PARTS OFF THE PREMISES THAT IT WOULD SELL THEM OR RE-ERECT
THEM INTO A PLANT IN CALIFORNIA WOULD BE RENDERED EXTREMELY IMPROBABLE
WHEN IT APPEARED THAT IT HAD KEPT HERE ONLY A PART OF THE MATERIALS OF
THE PLANT WHICH OF COURSE COULD NOT BE SOLD AS THE MATERIALS FROM WHICH
A PLANT COULD BE BUILT OR USED TO REASSEMBLE THE OLD ONE." 

THE APPELLANT PRESENTED THE SAME CONTENTIONS TO THE SUPREME COURT OF
CALIFORNIA.  WITHOUT EXPLICITLY REJECTING THESE CONTENTIONS, IT
REFERRED TO THE OBJECTS OF EXPORT AND OF TAXATION MERELY AS "THE
MACHINERY AND EQUIPMENT OF A CEMENT PLANT" AND ALLUDED TO THE
ABOVEQUOTED PORTION OF THE SUPERIOR COURT'S OPINION ONLY AS "ANOTHER
BASIS FOR THE DECISION."  ITS OPINION IS OPEN, THEREFORE, TO TWO VERY
DIFFERENT INTERPRETATIONS. 

1.  THE SUPREME COURT OF CALIFORNIA MAY HAVE EXERCISED A RIGHT UNDER
CALIFORNIA LAW TO DRAW ITS OWN INFERENCES FROM UNCONTROVERTED FACTS AND
THUS HAVE FOUND THAT WHAT WAS CALLED A "PLANT" WAS REALLY ONLY A
COLLECTION OF MACHINERY AND EQUIPMENT.  IF THAT IS WHAT IT DID, WE
WOULD NOT, OF COURSE, REINSTATE THE FINDINGS OF THE SUPERIOR COURT
MERELY IN ORDER TO RAISE AN INTERESTING QUESTION UNDER THE EXPORT
IMPORT CLAUSE.  AFFIRMANCE WOULD BE AMPLY SUPPORTED BY BARE CITATION OF
CASES HOLDING THAT INTENT TO EXPORT, NO MATTER HOW FIRM, IS NOT BY
ITSELF ENOUGH TO CONFER IMMUNITY FROM TAXATION. 

2.  THE SUPREME COURT OF CALIFORNIA MAY HAVE TAKEN THE VIEW THAT ONLY
DELIVERY TO A CARRIER OF EACH SUCCESSIVE PART EVEN OF AN ORGANIC WHOLE
REMOVED THAT PART FROM THE STATE'S TAXING POWER.  THIS WOULD HAVE BEEN
IN EFFECT TO SAY, "UPON THE FACTS AS FOUND BY THE SUPERIOR COURT, IT
MAKES NO DIFFERENCE TO THE TAXING POWER OF THE COUNTY OF MERCED THAT
PARTS OF THIS INTEGRATED PLANT HAD LEFT THE COUNTRY SINCE THE COUNTY IS
MERELY TAXING THE REMAINING PARTS."  SURELY THIS IS A DOUBTFUL
PROPOSITION; IT PRESENTS, AT ANY RATE, A DIFFICULT QUESTION OF THE
ADJUSTMENT OF LOCAL NEEDS TO THE PROTECTION OF EXPORTS FROM LOCAL
INTERFERENCE.    BETWEEN THESE TWO POSSIBLE INTERPRETATIONS OF THE
SITUATION BEFORE THE SUPREME COURT OF CALIFORNIA, THEREFORE, LIES THE
DIFFERENCE BETWEEN A SIMPLE QUESTION OF CONSTITUTIONAL POWER AND A VERY
TROUBLESOME ONE.  SINCE THE RECORD LEAVES IN DOUBT WHETHER THE
TROUBLESOME QUESTION IS PRESENTED, TO ASSUME THAT IT IS PRESENTED AND
THEN TO PASS UPON IT WOULD BE TO EMBRACE UNNECESSARILY WHAT MAY BE A
HYPOTHETICAL ISSUE.  WE SHOULD, THEREFORE, REMAND THE CASE FOR THE
RESOLUTION OF THE CRUCIAL QUESTION OF FACT UPON WHICH DEPENDS WHAT
CONSTITUTIONAL ISSUE WE ARE CALLED UPON TO DECIDE.  CF. HAMMOND V.
SCHAPPI BUS LINE, INC., 275 U.S. 164. 
..END :






URIE V. THOMPSON, 337 U.S. 163 


NO. 129.  ARGUED JANUARY 3, 1949.  - DECIDED MAY 31, 1949. 


1.  THE COVERAGE OF THE FEDERAL EMPLOYERS' LIABILITY ACT AND THE
BOILER INSPECTION ACT IS NOT CONFINED TO INJURIES RESULTING FROM
ACCIDENTS BUT INCLUDES INJURIES IN THE NATURE OF OCCUPATIONAL DISEASES,
SUCH AS SILICOSIS.  PP. 173-175, 180-196. 

(A)  NEGLIGENCE OF AN INTERSTATE RAILROAD WHICH RESULTS IN A
LOCOMOTIVE FIREMAN CONTRACTING SILICOSIS AS A RESULT OF INHALING SILICA
DUST GIVES RISE TO A CAUSE OF ACTION UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT INDEPENDENTLY OF THE BOILER INSPECTION ACT.  PP. 173-175,
180-187. 

(B)  FAILURE OF AN INTERSTATE RAILROAD TO MAINTAIN SANDERS ON ITS
LOCOMOTIVES IN GOOD CONDITION, PURSUANT TO PROVISIONS OF THE BOILER
INSPECTION ACT, IS NEGLIGENCE PER SE AND GIVES RISE TO A CAUSE OF
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IN FAVOR OF A
LOCOMOTIVE FIREMAN WHO CONTRACTED SILICOSIS FROM INHALING SILICA DUST
AS A RESULT OF THE MALFUNCTIONING OF THE SANDERS.  PP. 187-195. 

2.  A COMPLAINT WHICH SUFFICIENTLY CHARGED AN INTERSTATE RAILROAD
WITH KNOWINGLY HAVING USED, IN EXCESSIVE QUANTITIES, A DANGEROUS SAND
MATERIAL LIKELY TO CAUSE SILICOSIS AND IN FACT CAUSING COMPLAINANT TO
CONTRACT IT AND BECOME PERMANENTLY DISABLED, DUE IN PART TO FAULTY
ADJUSTMENT OF SANDERS AND FAILURE TO USE DUE CARE IN ADJUSTING THEM,
WAS SUFFICIENT TO STATE A CAUSE OF ACTION UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT INDEPENDENTLY OF THE BOILER INSPECTION ACT.  PP. 175
180. 

3.  THE BOILER INSPECTION ACT VESTS IN THE INTERSTATE COMMERCE
COMMISSION RULE-MAKING POWER ADEQUATE TO PROTECT EMPLOYEES AGAINST
DISEASE AS WELL AS AGAINST ACCIDENTS; AND INJURY RESULTING FROM
VIOLATIONS OF THESE RULES IS COMPENSABLE UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT.  PP. 193-194. 

4.  THAT PETITIONER'S CONTRACTION OF SILICOSIS RESULTED FROM THE
INHALATION OF SILICA DUST OVER A PERIOD OF THIRTY YEARS AND HE MAY HAVE
HAD SILICOSIS WITHOUT KNOWING IT FOR MORE THAN THREE YEARS BEFORE HE
SUED FOR COMPENSATION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, DID
NOT BAR HIS CLAIM WHEN THE TIME WHICH ELAPSED BETWEEN HIS DISCOVERY OF
HIS CONDITION AND THE FILING OF SUIT DID NOT EXCEED THREE YEARS, THE
PERIOD OF LIMITATIONS THEN PRESCRIBED BY THAT ACT.  PP. 168-171. 

5.  PETITIONER SUED FOR COMPENSATION UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, ALLEGING THAT HE HAD CONTRACTED SILICOSIS AS A RESULT OF
THE RAILROAD'S NEGLIGENCE AND WITHOUT CLAIMING ANY VIOLATION OF THE
BOILER INSPECTION ACT.  THE TRIAL COURT SUSTAINED A DEMURRER TO THE
COMPLAINT.  THE STATE SUPREME COURT HELD THAT THE ALLEGATIONS OF
NEGLIGENCE WERE NOT SUFFICIENT TO SUSTAIN THE ACTION UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT ALONE; BUT IT REMANDED THE CASE FOR TRIAL,
BECAUSE IT THOUGHT THAT THE COMPLAINT SUFFICIENTLY ALLEGED A BREACH OF
THE BOILER INSPECTION ACT.  PETITIONER AMENDED HIS COMPLAINT TO CHARGE
SPECIFICALLY VIOLATIONS OF THE BOILER INSPECTION ACT; THE JURY FOUND IN
HIS FAVOR; AND HE OBTAINED A JUDGMENT.  ON A SECOND APPEAL, THE STATE
SUPREME COURT REVERSED THIS JUDGMENT ON THE GROUND THAT THE BOILER
INSPECTION ACT APPLIES ONLY TO ACCIDENTAL INJURIES AND NOT TO
OCCUPATIONAL DISEASES.  HELD: 

(A)  ALTHOUGH THE QUESTION WAS NEITHER RAISED NOR CONSIDERED ON THE
SECOND APPEAL TO THE STATE SUPREME COURT, THE SUFFICIENCY OF
PETITIONER'S ORIGINAL CLAIM FOR NEGLIGENCE INVOLVED IN THE FIRST APPEAL
IS REVIEWABLE HERE, SINCE THE FIRST JUDGMENT OF THE STATE SUPREME COURT
WAS NOT A FINAL JUDGMENT.  PP. 171-172. 

(B)  COMPLAINANT DID NOT WAIVE THAT QUESTION BY AMENDING HIS
COMPLAINT TO STATE A CLAIM SPECIFICALLY UNDER THE BOILER INSPECTION ACT
OR BY PROCEEDING WITH TRIAL ON THAT THEORY.  P. 172. 

6.  LOCAL RULES OF PRACTICE CANNOT BAR THIS COURT'S INDEPENDENT
CONSIDERATION OF ALL SUBSTANTIAL FEDERAL QUESTIONS ACTUALLY DETERMINED
IN EARLIER STAGES OF LITIGATION BY A STATE COURT WHOSE FINAL
ADJUDICATION IS BROUGHT HERE FOR REVIEW.  PP. 172-173.   MR. JUSTICE
BURTON JOIN IN THIS OPINION. 

URIE V. THOMPSON, TRUSTEE. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

A STATE TRIAL COURT SUSTAINED A DEMURRER TO A COMPLAINT SEEKING
RECOVERY UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT FOR INJURIES
INCURRED BY CONTRACTING SILICOSIS AS A RESULT OF A RAILROAD'S
NEGLIGENCE.  THE STATE SUPREME COURT REVERSED AND REMANDED THE CASE FOR
TRIAL, HOLDING THAT THE COMPLAINT WAS SUFFICIENT TO ALLEGE A BREACH OF
THE BOILER INSPECTION ACT.  352 MO. 211, 176 S.W.2D 471.  AFTER
AMENDING HIS COMPLAINT SO AS TO ALLEGE SPECIFICALLY A VIOLATION OF THE
BOILER INSPECTION ACT, COMPLAINANT OBTAINED A JUDGMENT IN THE TRIAL
COURT.  ON A SECOND APPEAL, THE STATE SUPREME COURT REVERSED, HOLDING
THAT THE BOILER INSPECTION ACT WAS INAPPLICABLE TO INJURIES SUSTAINED
EXCEPT THROUGH ACCIDENTS.  357 MO. 738, 210 S.W.2D 98.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 809.  REVERSED, P. 196. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE PRIMARY QUESTION IS WHETHER THE COVERAGE OF THE FEDERAL EMPLOYERS'
LIABILITY ACT AND THE BOILER INSPECTION ACT  FN1  INCLUDES INJURIES IN
THE NATURE OF OCCUPATIONAL DISEASE, HERE SILICOSIS, OR IS CONFINED
EXCLUSIVELY TO INJURIES INFLICTED BY ACCIDENT.  AFTER HAVING BEEN TWICE
BEFORE THE SUPREME COURT OF MISSOURI, THE CASE IS HERE ON CERTIORARI,
335 U.S. 809, FOR REVIEW OF ITS FINAL DECISION ON THE SECOND APPEAL
THAT RECOVERY MAY NOT BE HAD FOR OTHER THAN ACCIDENTAL INJURIES.  A
STATEMENT OF THE COURSE TAKEN BY THE PROCEEDINGS IN THE STATE COURTS,
AS WELL AS OF THE FACTS, BECOMES NECESSARY FOR RESOLVING THE ISSUES
PRESENTED. 

IN 1941 PETITIONER TOM URIE FILED SUIT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT AGAINST RESPONDENT THOMPSON, TRUSTEE OF THE MISSOURI
PACIFIC RAILROAD.  ACCORDING TO PETITIONER'S ALLEGATIONS, HE HAD BEEN
EMPLOYED AS A FIREMAN ON STEAM LOCOMOTIVES OF THE INTERSTATE MISSOURI
PACIFIC FOR ROUGHLY THIRTY YEARS.  IN 1940 HE HAD BEEN FORCED TO CEASE
WORK BY A PULMONARY DISEASE DIAGNOSED AS SILICOSIS.  THIS PERMANENTLY
DISABLING AFFLICTION HAD BEEN CAUSED BY CONTINUOUS INHALATION OF SILICA
DUST BLOWN OR SUCKED INTO THE CABS OF THE LOCOMOTIVES ON WHICH HE HAD
WORKED.  THE INJURIOUS CONCENTRATION OF SILICA DUST IN THE AIR BREATHED
BY PETITIONER AROSE FROM THE RAILROAD'S USE IN ITS LOCOMOTIVES' SANDING
BOXES OF SAND MATERIALS CONTAINING 80 TO 90 PER CENT OF SILICA OR
SILICON DIOXIDE AND THE EMISSION BY THE LOCOMOTIVES' FAULTILY ADJUSTED
"SANDERS" FN2  OF SUCH SAND MATERIALS IN EXCESSIVE AMOUNTS BEYOND THOSE
NEEDED TO PROVIDE TRACTION FOR LOCOMOTIVE WHEELS.  RESPONDENT THOMPSON,
TRUSTEE OF THE RAILROAD SINCE 1933, "KNEW, OR BY THE EXERCISE OF DUE
CARE SHOULD HAVE KNOWN," OF THE DANGER OF SILICOSIS ARISING FROM THE
CONDITIONS OF PETITIONER'S EMPLOYMENT.  FN3 

THE TRIAL COURT SUSTAINED RESPONDENT'S DEMURRER TO THE COMPLAINT.  ON
APPEAL THE MISSOURI SUPREME COURT HELD THAT THE ACTION COULD NOT BE
MAINTAINED BY VIRTUE OF THE FEDERAL EMPLOYERS' LIABILITY ACT ALONE, FOR
THE REASON THAT RESPONDENT COULD NOT HAVE "ANTICIPATED PLAINTIFF'S
INJURY, AND  ...  THEREFORE  ...  THE PETITION DOES NOT STATE FACTS
SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION FOR NEGLIGENCE UNDER THE
FEDERAL EMPLOYERS LIABILITY ACT."  352 MO. 211, 219.  THE COURT FELT,
HOWEVER, THAT THE CLAIMED MALFUNCTIONING OF THE LOCOMOTIVES' SANDERS
WAS IN SUBSTANCE AN ALLEGATION OF BREACH OF SEC. 2 OF THE BOILER
INSPECTION ACT AND THAT, SINCE PROOF OF BREACH OF THE LATTER ACT WOULD
SUPPORT A RECOVERY UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT WITHOUT
REGARD TO RESPONDENT'S NEGLIGENCE, LILLY V. GRAND TRUNK R. CO., 317
U.S. 481, 485-486, PETITIONER HAD STATED A CAUSE OF ACTION. 
FURTHERMORE, THE COURT HELD THAT THE FEDERAL EMPLOYERS' LIABILITY ACT'S
THREE-YEAR STATUTE OF LIMITATIONS, 45 U.S.C. SEC. 56, DID NOT BAR
PETITIONER'S CLAIM SINCE HIS "CAUSE OF ACTION ACCRUED IN MAY, 1940,
WHEN HE BECAME INCAPACITATED  ...  "  352 MO. AT 222.  ACCORDINGLY THE
COURT REVERSED THE JUDGMENT AND REMANDED THE CAUSE FOR TRIAL. 

ON REMAND PETITIONER AMENDED HIS COMPLAINT TO CHARGE SPECIFICALLY
VIOLATIONS OF THE BOILER INSPECTION ACT.  SECTION 2 OF THAT ACT, AS
AMENDED, MAKES IT "UNLAWFUL FOR ANY CARRIER TO USE OR PERMIT TO BE USED
ON ITS LINE ANY LOCOMOTIVE UNLESS SAID LOCOMOTIVE, ITS BOILER, TENDER,
AND ALL PARTS AND APPURTENANCES THEREOF ARE IN PROPER CONDITION AND
SAFE TO OPERATE IN THE SERVICE TO WHICH THE SAME ARE PUT, THAT THE SAME
MAY BE EMPLOYED IN THE ACTIVE SERVICE OF SUCH CARRIER WITHOUT
UNNECESSARY PERIL TO LIFE OR LIMB  ...  "  45 U.S.C. SEC. 23.  FN4  THE
VIOLATIONS ALLEGED WERE (1) THAT THE SANDERS WERE BROKEN OR FAULTILY
ADJUSTED SO AS TO RELEASE TOO MUCH SAND AND (2) THAT THE LOCOMOTIVE
DECKS AND CABS WERE IN A BAD STATE OF REPAIR, ADMITTING DUST THROUGH
VARIOUS CRACKS AND OPENINGS IN THE CAB'S FLOOR AND ELSEWHERE WHICH
OUGHT TO HAVE BEEN SEALED OFF. 

THE CASE WAS TRIED TO A JURY, UNDER INSTRUCTIONS THAT NEGLIGENCE WAS
NOT IN ISSUE AND THAT PETITIONER SHOULD PREVAIL IF HE PROVED THAT HE
HAD CONTRACTED SILICOSIS BY REASON OF RESPONDENT'S BREACH OF AN
"ABSOLUTE AND CONTINUING DUTY TO HAVE SUCH LOCOMOTIVE ENGINES AND ALL
THEIR PARTS AND APPURTENANCES THEREOF, IN PROPER CONDITION AND SAFE TO
OPERATE  ...  WITHOUT UNNECESSARY PERIL TO THE LIFE OF TOM URIE  ...  "
THE JURY FOUND FOR PETITIONER IN THE AMOUNT OF $30,000. 

UPON RESPONDENT'S APPEAL THE MISSOURI SUPREME COURT REVERSED THE
JUDGMENT ENTERED ON THIS VERDICT.  357 MO. 738.  NOTING THAT ON THE
FORMER REVIEW IT DID NOT "TREAT WITH A CONTENTION THAT 'SILICOSIS' IS
NOT AN EVIL AT WHICH THE ACT IS AIMED," ID. AT 746, THE COURT CONCLUDED
THAT THE BOILER INSPECTION ACT "IS AIMED AT PROMOTING SAFETY FROM
ACCIDENTAL INJURY, AS DISTINGUISHED FROM INJURY DUE TO THE GRADUAL
INHALATION OF HARMFUL DUSTS."  ID. AT 749.  IT WAS TO REVIEW THE STATE
SUPREME COURT'S SUCCESSIVE CONSTRUCTIONS OF THE FEDERAL EMPLOYERS'
LIABILITY AND BOILER INSPECTION ACTS THAT OUR WRIT WAS ISSUED. 

                                  I. 

TWO PRELIMINARY CONTENTIONS FIRST ENGAGE OUR ATTENTION.  WE ARE MET
AT THE OUTSET BY THE QUESTION WHETHER, WITHOUT REGARD TO THE LEGAL
SUFFICIENCY OF PETITIONER'S CLAIM UNDER EITHER ACT, THAT CLAIM IS
BARRED AS TO BOTH ACTS BY OPERATION OF THE FEDERAL EMPLOYERS' LIABILITY
ACT'S STATUTE OF LIMITATIONS. 

URIE FILED SUIT ON NOVEMBER 25, 1941.  UNDER THE TERMS OF THE THEN
PREVAILING THREE-YEAR STATUTE OF LIMITATIONS,  FN5  THE COURT COULD NOT
ENTERTAIN THE CLAIM IF URIE'S "CAUSE OF ACTION ACCRUED" BEFORE NOVEMBER
25, 1938.  RESPONDENT CONTENDS THAT URIE, HAVING BEEN EXPOSED TO SILICA
DUST SINCE APPROXIMATELY 1910, MUST UNWITTINGLY HAVE CONTRACTED
SILICOSIS LONG BEFORE 1938, AND HENCE THAT HIS "CAUSE OF ACTION" MUST
BE DEEMED TO HAVE "ACCRUED" LONGER THAN THREE YEARS BEFORE THE
INSTITUTION OF THIS ACTION.  ALTERNATIVELY IT MAY BE ARGUED THAT EACH
INHALATION OF SILICA DUST WAS A SEPARATE TORT GIVING RISE TO A FRESH
"CAUSE OF ACTION," AND THAT URIE IS THEREFORE LIMITED TO A CLAIM FOR
INHALATIONS BETWEEN NOVEMBER 25, 1938, AND THE SPRING DAY IN 1940 WHEN
HE BECAME INCAPACITATED.  FN6 

IN OUR VIEW, HOWEVER, NEITHER OF THE OUTLINED CONSTRUCTIONS OF THE
STATUTE OF LIMITATIONS CAN BE SUSTAINED.  FOR, IF WE ASSUME THAT
CONGRESS INTENDED TO INCLUDE OCCUPATIONAL DISEASES IN THE CATEGORY OF
INJURIES COMPENSABLE UNDER THE FEDERAL EMPLOYERS' LIABILITY AND BOILER
INSPECTION ACTS, SUCH MECHANICAL ANALYSIS OF THE "ACCRUAL" OF
PETITIONER'S INJURY - WHETHER BREATH BY BREATH, OR AT ONE UNRECORDED
MOMENT IN THE PROGRESS OF THE DISEASE - CAN ONLY SERVE TO THWART THE
CONGRESSIONAL PURPOSE. 

IF URIE WERE HELD BARRED FROM PROSECUTING THIS ACTION BECAUSE HE MUST
BE SAID, AS A MATTER OF LAW, TO HAVE CONTRACTED SILICOSIS PRIOR TO
NOVEMBER 25, 1938, IT WOULD BE CLEAR THAT THE FEDERAL LEGISLATION
AFFORDED URIE ONLY A DELUSIVE REMEDY.  IT WOULD MEAN THAT AT SOME PAST
MOMENT IN TIME, UNKNOWN AND INHERENTLY UNKNOWABLE EVEN IN RETROSPECT,
URIE WAS CHARGED WITH KNOWLEDGE OF THE SLOW AND TRAGIC DISINTEGRATION
OF HIS LUNGS; UNDER THIS VIEW URIE'S FAILURE TO DIAGNOSE WITHIN THE
APPLICABLE STATUTE OF LIMITATIONS A DISEASE WHOSE SYMPTOMS HAD NOT YET
OBTRUDED ON HIS CONSCIOUSNESS WOULD CONSTITUTE WAIVER OF HIS RIGHT TO
COMPENSATION AT THE ULTIMATE DAY OF DISCOVERY AND DISABILITY. 

NOR CAN WE ACCEPT THE THEORY THAT EACH INTAKE OF DUSTY BREATH IS A
FRESH "CAUSE OF ACTION."  IN THE PRESENT CASE, FOR EXAMPLE, APPLICATION
OF SUCH A RULE WOULD, ARGUABLY, LIMIT PETITIONER'S DAMAGES TO THAT
AGGRAVATION OF HIS PROGRESSIVE INJURY TRACEABLE TO THE LAST EIGHTEEN
MONTHS OF HIS EMPLOYMENT.  MOREOVER PETITIONER WOULD HAVE BEEN WHOLLY
BARRED FROM SUIT HAD HE LEFT THE RAILROAD, OR MERELY BEEN TRANSFERRED
TO WORK INVOLVING NO EXPOSURE TO SILICA DUST, MORE THAN THREE YEARS
BEFORE DISCOVERING THE DISEASE WITH WHICH HE WAS AFFLICTED.  FN7 

WE DO NOT THINK THE HUMANE LEGISLATIVE PLAN INTENDED SUCH
CONSEQUENCES TO ATTACH TO BLAMELESS IGNORANCE.  NOR DO WE THINK THOSE
CONSEQUENCES CAN BE RECONCILED WITH THE TRADITIONAL PURPOSES OF
STATUTES OF LIMITATIONS, WHICH CONVENTIONALLY REQUIRE THE ASSERTION OF
CLAIMS WITHIN A SPECIFIED PERIOD OF TIME AFTER NOTICE OF THE INVASION
OF LEGAL RIGHTS.  THE RECORD BEFORE US IS CLEAR THAT URIE BECAME TOO
ILL TO WORK IN MAY OF 1940 AND THAT DIAGNOSIS OF HIS CONDITION WAS
ACCOMPLISHED IN THE FOLLOWING WEEKS.  THERE IS NO SUGGESTION THAT URIE
SHOULD HAVE KNOWN HE HAD SILICOSIS AT ANY EARLIER DATE.  "IT FOLLOWS
THAT NO SPECIFIC DATE OF CONTACT WITH THE SUBSTANCE CAN BE CHARGED WITH
BEING THE DATE OF INJURY, INASMUCH AS THE INJURIOUS CONSEQUENCES OF THE
EXPOSURE ARE THE PRODUCT OF A PERIOD OF TIME RATHER THAN A POINT OF
TIME; CONSEQUENTLY THE AFFLICTED EMPLOYEE CAN BE HELD TO BE 'INJURED'
ONLY WHEN THE ACCUMULATED EFFECTS OF THE DELETERIOUS SUBSTANCE MANIFEST
THEMSELVES ...  "  ASSOCIATED INDEMNITY CORP. V. INDUSTRIAL ACCIDENT
COMMISSION, 124 CAL. APP. 378, 381.  THE QUOTED LANGUAGE, USED IN A
STATE WORKMEN'S COMPENSATION CASE, SEEMS TO US APPLICABLE IN EVERY
RELEVANT PARTICULAR TO THE CONSTRUCTION OF THE FEDERAL STATUTE OF
LIMITATIONS WITH WHICH WE ARE HERE CONCERNED.  ACCORDINGLY WE AGREE
WITH THE VIEW EXPRESSED BY THE MISSOURI SUPREME COURT ON THE FIRST
APPEAL OF THIS CASE, THAT URIE'S CLAIM, IF OTHERWISE MAINTAINABLE, IS
NOT BARRED BY THE STATUTE OF LIMITATIONS.  FN8 

WE MAY READILY DISPOSE OF ANOTHER PRELIMINARY QUESTION CONCERNING THE
ISSUES WHICH ARE NOW PROPERLY BEFORE US.  RESPONDENT ARGUES, SOMEWHAT
SURPRISINGLY, THAT THE SUFFICIENCY OF PETITIONER'S ORIGINAL CLAIM FOR
NEGLIGENCE INVOLVED IN THE FIRST APPEAL IS NOT PROPERLY HERE, SINCE IT
WAS NEITHER RAISED NOR CONSIDERED ON THE SECOND APPEAL TO THE MISSOURI
SUPREME COURT.  THE SHORT ANSWER IS THAT PETITIONER HAS BROUGHT THE
CLAIM TO THIS COURT AT HIS FIRST OPPORTUNITY; AND IT WAS NOT NECESSARY
FOR HIM TO RELITIGATE THAT CLAIM A SECOND TIME THROUGH THE STATE COURTS
IN ORDER TO PRESERVE IT FOR OUR CONSIDERATION ON REVIEW OF THE FINAL
JUDGMENT RENDERED IN THE CAUSE. 

FROM THE OPINIONS OF THE STATE SUPREME COURT WE KNOW JUDICIALLY  FN9
THAT ITS JUDGMENT NEGATING THE GENERAL CLAIM FOR NEGLIGENCE WAS COUPLED
WITH ITS SUBSEQUENTLY REPUDIATED CONCLUSION THAT PETITIONER HAD STATED
A CAUSE OF ACTION UNDER THE BOILER INSPECTION ACT AND THAT,
CONSEQUENTLY, THE COURT REMANDED THE CAUSE FOR TRIAL, NOT FOR
DISMISSAL.  THE JUDGMENT THEREFORE WAS NOT FINAL; IT WAS INTERLOCUTORY
AND NOT REVIEWABLE HERE WITHIN THE MEANING OF OUR JURISDICTIONAL
STATUTE.  28 U.S.C. SEC. 344(B)(NOW SEC. 1257(3)).  FN10 

ALTHOUGH THE MISSOURI SUPREME COURT'S DISPOSITION OF THE FIRST APPEAL
PRECLUDED REVIEW HERE AT THAT TIME OF THE RULING ADVERSE TO PETITIONER,
URIE DID NOT WAIVE THAT QUESTION BY AMENDING HIS COMPLAINT, IN
CONFORMITY WITH THE COURT'S MANDATE, TO STATE HIS CLAIM MORE
SPECIFICALLY IN TERMS OF THE BOILER INSPECTION ACT OR BY PROCEEDING
WITH TRIAL ON THAT THEORY.  AS THE CASE THEN STOOD, THIS WAS HIS ONLY
REMAINING CHANCE FOR SUCCESS UNLESS HE WAS TO WAIVE IT, ASK FOR FINAL
JUDGMENT TO BE ENTERED AGAINST HIM ON THE GENERAL NEGLIGENCE ISSUE, AND
RELY SOLELY UPON SECURING REVIEW OF THAT JUDGMENT AND REVERSAL BY THIS
COURT. 

WHATEVER THE EFFECT OF THE STATE SUPREME COURT'S RULING FOR FURTHER
PROCEEDINGS IN THE STATE COURTS,  FN11  IT COULD NOT IMPOSE SUCH AN
ALTERNATIVE UPON PETITIONER.  LOCAL RULES OF PRACTICE CANNOT BAR THIS
COURT'S INDEPENDENT CONSIDERATION OF ALL SUBSTANTIAL FEDERAL QUESTIONS
ACTUALLY DETERMINED IN EARLIER STAGES OF THE LITIGATION BY THE COURT
WHOSE FINAL ADJUDICATION IS BROUGHT HERE FOR REVIEW.  ZECKENDORF V.
STEINFELD, 225 U.S. 445, 454; MESSENGER V. ANDERSON, 225 U.S. 436,
444.  EVEN SO, WE THINK SOUND PRACTICE WOULD SEE TO IT THAT SUCH
QUESTIONS WERE EXPRESSLY PRESERVED IN THE LATER STAGES OF REVIEW.  BUT,
AS THIS COURT HAS HAD OCCASION HERETOFORE TO OBSERVE, ITS POWER TO
PROBE ISSUES DISPOSED OF ON APPEALS PRIOR TO THE ONE UNDER REVIEW IS,
IN THE LAST ANALYSIS, A "NECESSARY CORRELATIVE" OF THE RULE WHICH
LIMITS IT TO THE EXAMINATION OF FINAL JUDGMENTS.  LOUISIANA NAVIGATION
CO. V. OYSTER COMMISSION, 226 U.S. 99, 102.  FN12 

ACCORDINGLY, EVEN IF IT SHOULD BE HELD THAT PETITIONER HAS STATED NO
CLAIM UNDER THE BOILER INSPECTION ACT, THE JUDGMENT NOW IN REVIEW
CANNOT STAND UNLESS THE MISSOURI SUPREME COURT RIGHTLY CONCLUDED, ON
THE FIRST APPEAL, THAT PETITIONER'S ORIGINAL COMPLAINT STATED NO CAUSE
OF ACTION FOR NEGLIGENCE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT,
CONSIDERED APART FROM ANY EFFECT OF THE BOILER INSPECTION ACT.  THAT
QUESTION IS PROPERLY PRESENTED AND TO IT WE NOW TURN. 
               II. 


"EVERY COMMON CARRIER BY RAILROAD WHILE ENGAGING IN COMMERCE  ...
SHALL BE LIABLE IN DAMAGES TO ANY PERSON SUFFERING INJURY WHILE HE IS
EMPLOYED BY SUCH CARRIER IN SUCH COMMERCE  ...  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."  45 U.S.C. SEC. 51. 

THE SECTION DOES NOT DEFINE NEGLIGENCE, LEAVING THAT QUESTION TO BE
DETERMINED, AS THE MISSOURI SUPREME COURT SAID, "BY THE COMMON LAW
PRINCIPLES AS ESTABLISHED AND APPLIED IN THE FEDERAL COURTS."  352 MO.
AT 218.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64, HAS NO APPLICATION. 
WHAT CONSTITUTES NEGLIGENCE FOR THE STATUTE'S PURPOSES IS A FEDERAL
QUESTION, NOT VARYING IN ACCORDANCE WITH THE DIFFERING CONCEPTIONS OF
NEGLIGENCE APPLICABLE UNDER STATE AND LOCAL LAWS FOR OTHER PURPOSES. 
FEDERAL DECISIONAL LAW FORMULATING AND APPLYING THE CONCEPT GOVERNS
FN13.  HENCE THE MISSOURI SUPREME COURT'S DECISION ON THE FIRST APPEAL,
THAT THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR NEGLIGENCE, IS
SUBJECT TO OUR INDEPENDENT REVIEW AND IS NOT TO BE TAKEN AS GOVERNED
CONCLUSIVELY BY THE STATE COURT DECISIONS WHICH ALONE WERE CITED IN
SUPPORT OF THE DETERMINATION. 

OF COURSE IF SILICOSIS CAUSED BY THE EMPLOYMENT IS NOT AN "INJURY"
WITHIN THE STATUTE'S INTENDED COVERAGE, NO CAUSE OF ACTION COULD BE
STATED FOR THAT INJURY UNDER THE STATUTE, EVEN THOUGH THE ALLEGATIONS
OF FAULT AND CAUSATION WERE WHOLLY SUFFICIENT.  THE MISSOURI SUPREME
COURT'S FIRST DECISION, HOWEVER, ASSUMED THAT SILICOSIS FELL WITHIN THE
STATUTE'S BROAD TERM "INJURY," AND HELD THAT IT WOULD NOT "BE
REASONABLE TO HOLD, UNDER THE FACTS ADMITTED BY THE DEMURRER, THAT
DEFENDANT SHOULD HAVE ANTICIPATED PLAINTIFF'S INJURY  ...  "  352 MO.
AT 219.  ACCORDINGLY, THE COURT RULED THAT NO CAUSE OF ACTION FOR
NEGLIGENCE UNDER THE ACT HAD BEEN STATED. 

UPON THE ASSUMPTION THAT SILICOSIS WHEN CAUSED BY THE EMPLOYMENT IS A
COMPENSABLE EMPLOYEE "INJURY," THE ADEQUACY OF PETITIONER'S CLAIM TURNS
SOLELY ON WHETHER HIS ORIGINAL COMPLAINT ALLEGED FACTS RAISING A
TRIABLE ISSUE OF NEGLIGENCE.  WE THINK THAT UNDER THE STANDARDS
HERETOFORE SET AND FOLLOWED BY THIS COURT,  FN14  THE FACTS ALLEGED IN
THE COMPLAINT AND TAKEN AS ADMITTED BY THE DEMURRER CLEARLY STATED A
CAUSE OF ACTION FOR NEGLIGENCE. 

THOSE FACTS HAVE BEEN BRIEFLY, THOUGH ONLY PARTIALLY, SUMMARIZED
ABOVE.  THEY CHARGED THAT RESPONDENT USED IN THE LOCOMOTIVES' SANDERS A
SAND MATERIAL CONTAINING A VERY HIGH PERCENTAGE OF SILICA OR SILICON
DIOXIDE; THAT OFTEN THE MATERIAL WOULD COME TO THE RAILS FROM THE
SANDERS IN EXCESSIVE AND UNNECESSARY QUANTITIES AND WOULD THERE BE
GROUND TO DUST; THAT THE DUST CONTAINING "SUCH USUAL AND UNUSUAL
QUANTITY OF SILICON DIOXIDE WOULD COME" INTO THE ENGINE CABS AND,
"FREQUENTLY OF UNUSUAL QUANTITY," WOULD BE BREATHED BY PETITIONER; AND
THAT RESPONDENT "KNEW, OR BY THE EXERCISE OF DUE CARE SHOULD HAVE
KNOWN," THAT THE SAND CONTAINED THE HIGH PERCENTAGE OF SILICON DIOXIDE;
THAT "THE DUST WOULD FORM AND FREQUENTLY OF EXCESSIVE QUANTITY BECAUSE
OF SAID SANDERS," COME INTO THE CAB AND BE BREATHED BY PETITIONER; AND
THAT OVER A PERIOD OF TIME THE BREATHING WAS "DANGEROUS TO THE HEALTH
AND LIFE AND WOULD LIKELY CAUSE TO THE PLAINTIFF THE CONDITION
RESULTING TO THE PLAINTIFF."  THE COMPLAINT THEN STATED THE FURTHER
ALLEGATIONS SET FORTH IN THE MARGIN,  FN15  TOGETHER WITH THE FOLLOWING
PARAGRAPH: 

"PLAINTIFF FURTHER ALLEGES THAT THE SANDING DEVICES ON SAID ENGINES
WERE ALL OF THE USUAL AND CUSTOMARY TYPE AND USED FOR THE USUAL AND
CUSTOMARY PURPOSE AND IF ORDINARY CARE WAS EXERCISED IN KEEPING THEM
ADJUSTED SUCH LARGE QUANTITIES OF SUCH SANDY SILICA MATERIAL WOULD NOT
ESCAPE; THAT PLAINTIFF DOES NOT KNOW WHETHER THE SAME KIND OF SAND
CONTAINING SUCH HIGH QUALITY OF SILICA WAS USED BY OTHER RAILROADS
OPERATING OVER OR THROUGH SUCH PARTS OF THE COUNTRY OF MISSOURI; THAT
SUCH SANDING DEVICES OPERATED IN THE SAME MANNER BY THE SAME MEANS AS
DEVICES ON LOCOMOTIVES OF OTHER RAILROADS, AND IF KEPT IN NORMAL AND
REGULAR WORKING CONDITION WOULD NOT ALLOW SUCH LARGE QUANTITIES OF
SILICA DUST TO FORM AS ABOVE STATED." 

THESE AND OTHER ALLEGATIONS SUFFICIENTLY CHARGED RESPONDENT WITH
KNOWINGLY HAVING USED, IN EXCESSIVE QUANTITIES DUE IN PART TO FAULTY
ADJUSTMENT OF THE SANDERS AND RESPONDENT'S FAILURE TO USE DUE CARE IN
ADJUSTING THEM, A DANGEROUS SAND MATERIAL LIKELY TO CAUSE SILICOSIS AND
IN FACT CAUSING PETITIONER TO CONTRACT IT AND BECOME PERMANENTLY
DISABLED.  THIS WOULD SEEM TO BE CLEARLY ADEQUATE FOR STATING A CAUSE
OF ACTION FOR NEGLIGENCE RESULTING IN INJURY WITHIN THE MEANING OF THE
STATUTE AND THE APPLICABLE JUDICIAL STANDARDS TO WHICH WE HAVE
REFERRED.  ALL THE USUAL ELEMENTS ARE COMPREHENDED, INCLUDING WANT OF
DUE OR ORDINARY CARE, PROXIMATE CAUSATION OF THE INJURY, AND INJURY
WITHIN OUR ASSUMPTION FOR PRESENT PURPOSES OF STATUTORY COVERAGE. 

TO SUSTAIN THE CONTRARY VIEW, HOWEVER, THE MISSOURI SUPREME COURT
SEEMS TO HAVE RULED AS A MATTER OF LAW THAT RESPONDENT HAD ADHERED TO
THE CUSTOMARY STANDARDS OF THE TRADE, STRESSING THE ADMISSION IN
PETITIONER'S COMPLAINT THAT THE SANDING DEVICES ALLEGED TO HAVE BEEN
FAULTILY ADJUSTED WERE OF THE KIND ORDINARILY USED THROUGHOUT THE
RAILROAD INDUSTRY.  CONTRARY TO THE COURT'S APPARENT CONCLUSION, THIS
OBVIOUSLY WAS NOT AN ADMISSION THAT RESPONDENT HAD COMPLIED WITH THE
USUAL STANDARDS OF THE TRADE.  THERE WAS NEITHER ADMISSION BY
PETITIONER NOR EVIDENCE OF ANYTHING MORE THAN THAT RESPONDENT'S SANDERS
WERE "ALL OF THE USUAL AND CUSTOMARY TYPE" WHICH, IF KEPT PROPERLY
ADJUSTED BY ORDINARY CARE, WOULD NOT HAVE ALLOWED SUCH LARGE AND
EXCESSIVE QUANTITIES OF SILICA DUST TO ESCAPE, CONCENTRATE IN THE CAB,
AND BE BREATHED BY PETITIONER.  THERE WAS NO ADMISSION THAT OTHER
RAILROADS GENERALLY OR IN THE REGION CUSTOMARILY USED SUCH HIGH SILICA
CONTENT MATERIALS FOR SANDING PURPOSES OR THAT, IF THEY DID, THEY DID
NOT TAKE STEPS TO MINIMIZE POTENTIALLY HARMFUL EFFECTS.  MOREOVER,
ASSUMING THE PREMISE THAT MAINTENANCE OF TRADE STANDARDS NEGATIVES
NEGLIGENCE, WE CANNOT GRASP ITS SIGNIFICANCE IN THIS CONTEXT ABSENT ANY
INDICATION THAT FAULTILY ADJUSTED SANDING DEVICES ARE THE RULE RATHER
THAN THE EXCEPTION ON AMERICAN STEAM LOCOMOTIVES. 

BUT WE ALSO REJECT THE PREMISE, FOR WE THINK THAT NEGLIGENCE, WITHIN
THE MEANING OF THE FEDERAL EMPLOYERS' LIABILITY ACT, ATTACHED IF
RESPONDENT "KNEW, OR BY THE EXERCISE OF DUE CARE SHOULD HAVE KNOWN,"
THAT PREVALENT STANDARDS OF CONDUCT WERE INADEQUATE TO PROTECT
PETITIONER AND SIMILARLY SITUATED EMPLOYEES.  CF. HILL V. ATLANTIC
COAST LINE R. CO., 336 U.S. 911, REVERSING 229 N.C. 236.  SEE ALSO
SADOWSKI V. LONG ISLAND R. CO., 292 N.Y. 448, 456-457.  FN16
RESPONDENT'S KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, OF THE ALLEGED
INADEQUACIES OF THE SANDING EQUIPMENT WAS A JURY QUESTION.  WHETHER
PETITIONER WAS THEN OR NOW WOULD BE ABLE TO SHOULDER THE BURDEN OF
PROVING RESPONDENT'S KNOWLEDGE WE NEED NOT SURMISE, THOUGH THE EVIDENCE
ADDUCED BY PETITIONER AT TRIAL UNDER THE BOILER INSPECTION ACT -
INDICATING THAT OTHERS BESIDES PETITIONER HAD OBSERVED AND REPORTED
DEFECTS IN RESPONDENT'S LOCOMOTIVE EQUIPMENT - UNDERSCORES OUR
INSISTENCE THAT ISSUES OF FACT ARE MATTERS FOR THE JURY.  FN17 

ACCORDINGLY WE THINK THE STATE COURT'S RULING THAT THE FACTS STATED
IN THE ORIGINAL COMPLAINT WERE INSUFFICIENT TO CONSTITUTE A CHARGE OF
NEGLIGENCE ON RESPONDENT'S PART, WITHIN THE MEANING OF THE FEDERAL
EMPLOYERS' LIABILITY ACT CONSIDERED APART FROM THE EFFECT OF THE BOILER
INSPECTION ACT, WAS WRONG AND MUST BE OVERRULED.  WHAT WAS SAID BY THE
NEW YORK COURT OF APPEALS IN SADOWSKI V. LONG ISLAND R. CO., SUPRA AT
455-456, IN SUSTAINING A RECOVERY FOR SILICOSIS UNDER THE ACT, FITS
VERY CLOSELY THE FACTS OF THIS CASE AND REPRESENTS, IN OUR OPINION, THE
CORRECT VIEW: 

"ORDINARY CARE MUST BE IN PROPORTION TO THE DANGER TO BE AVOIDED AND
THE CONSEQUENCES THAT MIGHT REASONABLY BE ANTICIPATED FROM THE NEGLECT
(RAILROAD CO. V. JONES, 95 U.S. 439; BAILEY V. CENTRAL VERMONT RY.,
SUPRA (319 U.S. 350)).  IT MUST BE COMMENSURATE WITH KNOWN DANGERS. 
DEFENDANT CREATED THE PLACE IN WHICH THE WORK WAS DONE AND SUPERVISED
THE DOING OF THE WORK BY PLAINTIFF AND WAS AWARE FOR A PERIOD OF AT
LEAST SIXTEEN YEARS OF THE CONDITIONS UNDER WHICH PLAINTIFF WAS
REQUIRED TO WORK AND OF THE MEANS AND METHODS BY WHICH ITS WORK WAS
ACCOMPLISHED.  IT IS A MATTER OF COMMON KNOWLEDGE THAT IT IS INJURIOUS
TO THE LUNGS AND DANGEROUS TO HEALTH TO WORK IN SILICA DUST, A FACT
WHICH DEFENDANT WAS BOUND TO KNOW."  FN18 

THE QUESTION REMAINS WHETHER SILICOSIS IS AN "INJURY" WITHIN THE
MEANING OF THAT TERM AS USED IN THE FEDERAL EMPLOYERS' LIABILITY ACT. 
IT IS A NOVEL ONE FOR THIS COURT.  BUT WE THINK SILICOSIS IS WITHIN THE
STATUTE'S COVERAGE WHEN IT RESULTS FROM THE EMPLOYER'S NEGLIGENCE. 
CONSIDERATIONS ARISING FROM THE BREADTH OF THE STATUTORY LANGUAGE, THE
ACT'S HUMANITARIAN PURPOSES, ITS ACCEPTED STANDARD OF LIBERAL
CONSTRUCTION IN ORDER TO ACCOMPLISH THOSE OBJECTS, THE ABSENCE OF
ANYTHING IN THE LEGISLATIVE HISTORY INDICATING A CONGRESSIONAL INTENT
TO REQUIRE A RESTRICTED INTERPRETATION OR EXPRESSLY TO EXCLUDE SUCH
OCCUPATIONAL DISEASE, AND THE TREND OF EXISTING AUTHORITIES DEALING
WITH THE QUESTION, COMBINE TO SUPPORT THIS CONCLUSION. 

WE RECOGNIZE OF COURSE THAT, WHEN THE STATUTE WAS ENACTED, CONGRESS'
ATTENTION WAS FOCUSED PRIMARILY UPON INJURIES AND DEATH RESULTING FROM
ACCIDENTS ON INTERSTATE RAILROADS.  FN19 OBVIOUSLY THESE WERE THE MAJOR
CAUSES OF INJURY AND DEATH RESULTING FROM RAILROAD OPERATIONS.  BUT
ACCIDENTAL INJURIES WERE NOT THE ONLY ONES LIKELY TO OCCUR.  AND
NOTHING IN EITHER THE LANGUAGE OR THE LEGISLATIVE HISTORY DISCLOSES
EXPRESSLY ANY INTENT TO EXCLUDE FROM THE ACT'S COVERAGE ANY INJURY
RESULTING "IN WHOLE OR IN PART FROM THE NEGLIGENCE" OF THE CARRIER.  IF
SUCH AN INTENT CAN BE FOUND, IT MUST BE READ INTO THE ACT BY SHEER
INFERENCE. 

THE LANGUAGE IS AS BROAD AS COULD BE FRAMED:  "ANY PERSON SUFFERING
INJURY WHILE HE IS EMPLOYED"; "SUCH INJURY OR DEATH RESULTING IN WHOLE
OR IN PART FROM THE NEGLIGENCE OF ANY OF THE OFFICERS, AGENTS, OR
EMPLOYEES OF SUCH CARRIER"; "BY REASON OF ANY DEFECT OR INSUFFICIENCY,
DUE TO ITS NEGLIGENCE, IN ITS CARS, ENGINES, APPLIANCES," ETC.  ON ITS
FACE, EVERY INJURY SUFFERED BY ANY EMPLOYEE WHILE EMPLOYED BY REASON OF
THE CARRIER'S NEGLIGENCE WAS MADE COMPENSABLE.  THE WORDING WAS NOT
RESTRICTIVE AS TO THE EMPLOYEES COVERED; THE CAUSE OF INJURY, EXCEPT
THAT IT MUST CONSTITUTE NEGLIGENCE ATTRIBUTABLE TO THE CARRIER; OR THE
PARTICULAR KIND OF INJURY RESULTING. 

TO READ INTO THIS ALL-INCLUSIVE WORDING A RESTRICTION AS TO THE KINDS
OF EMPLOYEES COVERED, THE DEGREE OF NEGLIGENCE REQUIRED, OR THE
PARTICULAR SORTS OF HARMS INFLICTED, WOULD BE CONTRADICTORY TO THE
WORDING, THE REMEDIAL AND HUMANITARIAN PURPOSE, AND THE CONSTANT AND
ESTABLISHED COURSE OF LIBERAL CONSTRUCTION OF THE ACT FOLLOWED BY THIS
COURT.  FN20 

WE RECOGNIZE, WITH RESPONDENT, THAT THE FEDERAL EMPLOYERS' LIABILITY
ACT IS FOUNDED ON COMMON-LAW CONCEPTS OF NEGLIGENCE AND INJURY, SUBJECT
TO SUCH QUALIFICATIONS AS CONGRESS HAS IMPORTED INTO THOSE TERMS.  IF
RESPONDENT WERE RIGHT IN SUGGESTING THAT THE COMMON LAW DOES NOT
RECOGNIZE OCCUPATIONAL DISEASE AS A CATEGORY OF COMPENSABLE INJURY, HE
WOULD LEND SUBSTANCE TO THE ARGUMENT THAT CONGRESS' USE OF THE WORD
"INJURY" WAS LESS BROAD THAN THE WORD'S SURFACE CONNOTATION INDICATES. 
HOWEVER, ALTHOUGH THE CONTRARY VIEW HAS BEEN ADVANCED, FN21  WE ARE
SATISFIED THAT THE DIFFICULTIES WHICH HAVE ATTACHED TO TORT RECOVERY
FOR OCCUPATIONAL DISEASE INHERE NOT IN THE NATURE OF THE WRONG BUT IN
THE DIFFICULTY OF PROVING NEGLIGENCE.  FOR, AS THE OHIO SUPREME COURT
OBSERVED WITH REFERENCE TO SILICOSIS, "IN THE EARLY PERIOD OF
INDUSTRIAL DEVELOPMENT THERE WAS LITTLE MEDICAL KNOWLEDGE REGARDING THE
ORIGIN OF DISEASES PECULIAR TO THE VARIOUS EMPLOYMENTS  ...  "  TRIFF
V. NATIONAL BRONZE & ALUMINUM FOUNDRY CO., 135 OHIO ST. 191, 195.  WE
DO NOT DOUBT THAT AT "COMMON LAW THE INCURRING OF A DISEASE OR HARM TO
HEALTH IS SUCH A PERSONAL WRONG AS TO WARRANT A RECOVERY IF THE OTHER
ELEMENTS OF LIABILITY FOR TORT ARE PRESENT."  FN22 

VIEWING THE FEDERAL EMPLOYERS' LIABILITY ACT AS A NEGLIGENCE STATUTE,
WE THINK THAT ARGUMENTS DRAWN FROM THE COVERAGE ACCORDED OCCUPATIONAL
DISEASES IN STATE WORKMEN'S COMPENSATION STATUTES CANNOT CONTROL THE
PRESENT INQUIRY.  AND YET WE MAY NOTE IN PASSING THAT DECISIONS UNDER
SUCH STATUTES, TO WHATEVER EXTENT THEY MAY BE THOUGHT RELEVANT, OFFER
LITTLE SUPPORT TO RESPONDENT'S NARROW VIEW OF THE FEDERAL LEGISLATION
BEFORE US.  TRUE IT IS THAT THE BRITISH WORKMEN'S COMPENSATION ACT OF
1897, 60 & 61 VICT.  C. 37, ALTHOUGH COVERING ANTHRAX CONTRACTED BY
CLAIMANT FROM A PARTICULAR AND IDENTIFIABLE PROCESSING OF WOOL, TURVEY
V. BRINTONS, LTD., (1904) 1 K.B. 328, AFFIRMED (1905) A.C. 230, WAS
HELD TO EXCLUDE GRADUAL LEAD POISONING.  STEEL V. CAMMELL, LAIRD & CO.,
(1905) 2 K.B. 232.  BUT IT IS EQUALLY TRUE THAT THE STATUTE THERE
CONSTRUED PROVIDED FOR COMPENSATION ONLY IN CASES OF "PERSONAL INJURY
BY ACCIDENT," A LIMITATION MUCH STRESSED BY THE OPINIONS IN STEEL V.
CAMMELL, LAIRD & CO., SUPRA.  AND SEE WALKER V. LILLESHALL COAL CO.,
(1900) 1 Q.B. 488.  DECISIONS IN THIS COUNTRY HAVE UNIFORMLY FOLLOWED
THE EARLY BRITISH RULE IN CONSTRUING SUCH TERMS AS "ACCIDENT" AND
"ACCIDENTAL INJURY," AS WELL AS "PERSONAL INJURY BY ACCIDENT."  FN23 
BUT DECISIONS CONSTRUING "PERSONAL INJURY" - MORE NEARLY AKIN TO THE
SIMPLE "INJURY" OF THE FEDERAL EMPLOYERS' LIABILITY ACT - ARE IN
CONFLICT.  THUS THE SUPREME COURT OF OHIO EXCLUDED OCCUPATIONAL
DISEASES IN VIEW OF THE SPECIAL LEGISLATIVE AND CONSTITUTIONAL CONTEXT
OF THE STATUTE CONSIDERED, WHILE RECOGNIZING THAT OTHERWISE IT WOULD BE
"NO DIFFICULT MATTER TO BRING WITHIN THE PURVIEW OF THE WORDS 'PERSONAL
INJURIES SUSTAINED IN THE COURSE OF EMPLOYMENT' OCCUPATIONAL DISEASES
INCURRED IN COURSE OF EMPLOYMENT."  INDUSTRIAL COMMISSION V. BROWN, 92
OHIO ST. 309, 312-313; CF. INDUSTRIAL COMMISSION V. ROTH, 98 OHIO ST.
34.  THE CONNECTICUT SUPREME COURT, RELYING ON ITS COMMON-LAW VIEW THAT
"TYPICAL" OCCUPATIONAL DISEASES WERE NOT COMPENSABLE, LIKEWISE EXCLUDED
OCCUPATIONAL DISEASES FROM ITS "PERSONAL INJURY" STATUTE.  MILLER V.
AMERICAN STEEL & WIRE CO., 90 CONN. 349.  BUT AGAINST THIS LINE OF
AUTHORITY MAY BE SET THE VIEW OF THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS, SPEAKING BY CHIEF JUSTICE RUGG, WHICH HELD THAT
BLINDNESS CAUSED BY NOXIOUS INDUSTRIAL VAPORS WAS A "PERSONAL INJURY"
WITHIN THE MEANING OF THE MASSACHUSETTS STATUTE.  HURLE'S CASE, 217
MASS. 223. 

CONSONANT WITH THE MASSACHUSETTS STATUTE IS THE ONE COMPENSATION ACT
THE MEANING OF WHICH MAY BE THOUGHT DIRECTLY TO BEAR ON CONGRESSIONAL
USE OF THE WORD "INJURY" IN THE FEDERAL NEGLIGENCE STATUTE WITH WHICH
WE ARE TODAY CONCERNED.  THE FEDERAL EMPLOYEES' COMPENSATION ACT OF MAY
30, 1908, 35 STAT. 556, APPROVED LESS THAN TWO MONTHS AFTER THE FEDERAL
EMPLOYERS' LIABILITY ACT, PROVIDED COMPENSATION FOR CERTAIN CLASSES OF
FEDERAL EMPLOYEES "INJURED IN THE COURSE OF  ... EMPLOYMENT."  UNDER
THIS STATUTE COMPENSATION WAS AWARDED FOR, INTER ALIA, INHALATION OF
DUST AND FINE SCALE,  FN24  LEAD POISONING,  FN25  CARDIAC HYPERTROPHY
CAUSED BY INHALATION OF ETHER,  FN26 AND THROAT TUBERCULOSIS AGGRAVATED
BY BRASS POISONING.  FN27  IN SHORT, THE WORKMEN'S COMPENSATION CASES
OFFER LITTLE COMFORT TO RESPONDENT'S VIEW OF THE FEDERAL EMPLOYERS'
LIABILITY ACT. 

WHILE NO DECISION OF THIS COURT INVOLVING THE FEDERAL EMPLOYERS'
LIABILITY ACT HAS DEALT SPECIFICALLY WITH SILICOSIS, THE NEW YORK COURT
OF APPEALS, AS WE HAVE INDICATED ABOVE, HAS SUSTAINED RECOVERY UNDER
THE ACT FOR THAT DISEASE WHEN RESULTING FROM THE CARRIER'S NEGLIGENCE. 
THIS WAS DONE IN CIRCUMSTANCES NOT SUBSTANTIALLY DIFFERENT FROM THOSE
ALLEGED IN PETITIONER'S ORIGINAL COMPLAINT, EXCEPT THAT THE FACTS
INVOLVED NO POSSIBLE APPLICATION OF THE BOILER INSPECTION ACT. 
SADOWSKI V. LONG ISLAND R. CO., SUPRA.  MOREOVER, OTHER STATE AND
FEDERAL DECISIONS HAVE AUTHORIZED RECOVERY UNDER THE ACT FOR INJURIES
NOT CAUSED BY ACCIDENTAL OR VIOLENT MEANS.  THESE INCLUDE SHELTON V.
THOMSON, 148 F.2D 1; 157 F.2D 709, WHERE RECOVERY WAS PERMITTED FOR
CARBON MONOXIDE POISONING; B. & O.R. CO. V. BRANSON, 128 MD. 678,
REVERSED ON OTHER GROUNDS, 242 U.S. 623, IN WHICH RECOVERY WAS ALLOWED
FOR PAINT POISONING.  CF. C.R.I. & P.R. CO. V. CHEEK, 105 OKLA. 91. 
NOT ALL OF THESE DECISIONS COULD BE SUSTAINED IF THE STATUTORY TERM
"INJURY" WERE HELD TO REQUIRE THAT THE HARM SUFFERED FROM THE
EMPLOYER'S NEGLIGENCE MUST BE CONFINED TO THAT INFLICTED BY "EXTERNAL,
VIOLENT AND ACCIDENTAL" MEANS OR BE AN "ACCIDENTAL INJURY," AS
RESPONDENT'S NARROW VIEW OF THE STATUTE'S COVERAGE SEEMS TO
CONTEMPLATE. 

WE WOULD BE MOST HESITANT TO ADOPT A CONSTRUCTION OF "INJURY" AS USED
IN THIS ACT WHICH WOULD OVERRULE THE DECISIONS LAST CITED OR SERIOUSLY
IMPAIR THEIR AUTHORITY.  WE THINK THEY WERE MADE IN THE SPIRIT THE
STATUTE CONTEMPLATED FOR ITS ADMINISTRATION AND APPLICATION.  THAT
SPIRIT IS ONE NOT IN CONFORMITY WITH IMPORTING NICE DISTINCTIONS IN
APPLYING THE ACT'S BROAD AND GENERAL TERMS OR CUTTING DOWN THEIR FULL
SCOPE BY INFERENCE OR IMPLICATION. 

IN OUR VIEW, WHEN THE EMPLOYER'S NEGLIGENCE IMPAIRS OR DESTROYS AN
EMPLOYEE'S HEALTH BY REQUIRING HIM TO WORK UNDER CONDITIONS LIKELY TO
BRING ABOUT SUCH HARMFUL CONSEQUENCES, THE INJURY TO THE EMPLOYEE IS
JUST AS GREAT WHEN IT FOLLOWS, OFTEN INEVITABLY, FROM A CARRIER'S
NEGLIGENT COURSE PURSUED OVER AN EXTENDED PERIOD OF TIME AS WHEN IT
COMES WITH THE SUDDENNESS OF LIGHTNING.  SILICOSIS IS AS MUCH "INJURY,"
LEADING IN TIME AS CERTAINLY TO PERMANENT DISABILITY, AS SCALDING FROM
A BOILER'S EXPLOSION.  WE DO NOT THINK THE MERE DIFFERENCE IN THE TIME
REQUIRED FOR DIFFERENT ACTS OF NEGLIGENCE TO TAKE EFFECT AND DISCLOSE
THEIR HARMFUL, DISABLING CONSEQUENCES WOULD JUSTIFY EXCLUDING THE ONE
TYPE OF INJURY FROM THE ACT'S COVERAGE OR THAT SUCH AN EXCLUSION WOULD
BE CONSISTENT WITH ITS LANGUAGE, PURPOSES, OR UNVARYING STANDARDS OF
CONSTRUCTION. 

ACCORDINGLY IT FOLLOWS, AS THE MISSOURI SUPREME COURT ASSUMED ON THE
FIRST APPEAL, THAT PETITIONER'S ORIGINAL COMPLAINT DID NOT FAIL IN
STATING A CAUSE OF ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
FOR WANT OF ALLEGATION OF SUFFICIENT INJURY.  PETITIONER WAS ENTITLED
TO GO TO TRIAL AT THAT TIME WITHOUT RESTRICTION REQUIRING HIM TO SHOW
VIOLATION OF THE BOILER INSPECTION ACT. 

THIS CONCLUSION, IF IT WERE ALL THAT IS INVOLVED IN THE CASE, WOULD
COMPEL REVERSAL OF THE STATE SUPREME COURT'S DECISION AND REMAND FOR
TRIAL UPON THE ORIGINAL COMPLAINT.  HOWEVER, IT REMAINS TO CONSIDER THE
EFFECT OF THE BOILER INSPECTION ACT AND WHETHER THE VERDICT RENDERED
FOR PETITIONER UNDER THAT ACT, IN CONJUNCTION WITH THE FEDERAL
EMPLOYERS' LIABILITY ACT, SHOULD BE ALLOWED TO STAND. 

                                 III. 

BY VIRTUE OF THE COURSE TAKEN BY THE CASE IN THE STATE COURTS, THE
MISSOURI SUPREME COURT DID NOT SQUARELY HOLD THAT SILICOSIS WAS NOT AN
INJURY WITHIN THE COVERAGE OF THE FEDERAL EMPLOYERS' LIABILITY ACT
CONSIDERED APART FROM THE BOILER INSPECTION ACT.  AS THE CASE TOOK
SHAPE THAT QUESTION DID NOT ARISE ON THE FIRST APPEAL.  AND BY VIRTUE
OF THE RULING ON THE REMAND FOR TRIAL, THAT THE ONLY CAUSE OF ACTION
STATED WAS THAT ARISING UNDER THE BOILER INSPECTION ACT, THE COURT ON
THE SECOND APPEAL TREATED THE QUESTION WHETHER SILICOSIS WAS A
COMPENSABLE INJURY SUBSTANTIALLY AS IF THE BOILER INSPECTION ACT WAS A
WHOLLY INDEPENDENT STATUTE, UNRELATED IN THE SCOPE OF ITS COVERAGE, FOR
PURPOSES OF EMPLOYEES' SUITS FOR BREACH OF ITS PROVISIONS, TO THE
EMPLOYERS' LIABILITY ACT'S TERMS, I.E., AS IF THE QUESTION AROSE SOLELY
UNDER THE BOILER INSPECTION ACT. 

BUT BY ITS OWN TERMS THE BOILER INSPECTION ACT, LIKE THE SAFETY
APPLIANCE ACTS,  FN28  DOES NOT PURPORT TO CONFER ANY RIGHT OF ACTION
UPON INJURED EMPLOYEES.  IT MERELY MAKES VIOLATION OF ITS PROHIBITIONS
"UNLAWFUL."  FN29  YET IT HAS BEEN HELD CONSISTENTLY THAT THE BOILER
INSPECTION ACT SUPPLEMENTS THE FEDERAL EMPLOYERS' LIABILITY ACT BY
IMPOSING ON INTERSTATE RAILROADS "AN ABSOLUTE AND CONTINUING DUTY" TO
PROVIDE SAFE EQUIPMENT.  LILLY V. GRAND TRUNK R. CO., SUPRA AT 485;
SOUTHERN R. CO. V. LUNSFORD, 297 U.S. 398, 401; CF. BALTIMORE & O.R.
CO. V. GROEGER, 266 U.S. 521, 528-529. 

THIS CONCLUSION STEMS, NOT FROM ANY EXPRESS STATUTORY LANGUAGE, BUT
BY IMPLICATION FROM SECS. 3 AND 4 OF THE FEDERAL EMPLOYERS' LIABILITY
ACT, 45 U.S.C. SECS. 53, 54, WHICH BAR PLEADINGS OF, RESPECTIVELY,
CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK "IN ANY CASE WHERE THE
VIOLATION BY SUCH COMMON CARRIER OF ANY STATUTE ENACTED FOR THE SAFETY
OF EMPLOYEES CONTRIBUTED TO THE INJURY OR DEATH OF SUCH EMPLOYEE." 
FN30  BUT IT IS SEC. 1 OF THE FEDERAL EMPLOYERS' LIABILITY ACT, AND NOT
SECS. 3 AND 4, WHICH EXPRESSLY CREATES A CAUSE OF ACTION FOR
NEGLIGENCE; AND BY THE SAME TOKEN IT IS SEC. 1 WHICH IS THE BASIS OF AN
EMPLOYEE'S SUIT FOR VIOLATION OF THE BOILER INSPECTION OR SAFETY
APPLIANCE ACTS.  FOR WHERE SEC. 1 "REFERS TO 'ANY DEFECT OR
INSUFFICIENCY, DUE TO ITS NEGLIGENCE, IN ITS CARS, ENGINES,
APPLIANCES,' ETC., IT CLEARLY IS THE LEGISLATIVE INTENT TO TREAT A
VIOLATION OF THE SAFETY APPLIANCE ACT AS 'NEGLIGENCE' - WHAT IS
SOMETIMES CALLED NEGLIGENCE PER SE."  SAN ANTONIO & A.P.R. CO. V.
WAGNER, 241 U.S. 476, 484. 

IN THIS VIEW THE SAFETY APPLIANCE ACTS, TOGETHER WITH THE BOILER
INSPECTION ACT, ARE SUBSTANTIVELY IF NOT IN FORM AMENDMENTS TO THE
FEDERAL EMPLOYERS' LIABILITY ACT.  THEY DISPENSE, FOR THE PURPOSES OF
EMPLOYEES' SUITS, WITH THE NECESSITY OF PROVING THAT VIOLATIONS OF THE
SAFETY STATUTES CONSTITUTE NEGLIGENCE; AND MAKING PROOF OF SUCH
VIOLATIONS IS EFFECTIVE TO SHOW NEGLIGENCE AS A MATTER OF LAW.  THUS
TAKEN, AS HAS BEEN THE CONSISTENT PRACTICE, THE BOILER INSPECTION AND
SAFETY APPLIANCE ACTS CANNOT BE REGARDED AS STATUTES WHOLLY SEPARATE
FROM AND INDEPENDENT OF THE FEDERAL EMPLOYERS' LIABILITY ACT.  THEY ARE
RATHER SUPPLEMENTAL TO IT, HAVING THE PURPOSE AND EFFECT OF
FACILITATING EMPLOYEE RECOVERY, NOT OF RESTRICTING SUCH RECOVERY OR
MAKING IT IMPOSSIBLE. 

REGARDED IN THIS LIGHT, THE BOILER INSPECTION AND SAFETY APPLIANCE
ACTS WOULD TAKE ON HIGHLY INCONGRUOUS CHARACTER IF, AT THE VERY TIME
THEY WERE EXPEDITING EMPLOYEE RECOVERY UNDER THE EMPLOYERS' LIABILITY
ACT BY SUBSTITUTING THE COMPARATIVELY LIGHT BURDEN OF PROVING VIOLATION
OF THEIR PROHIBITIONS FOR THE HEAVIER ONE OF PROVING NEGLIGENCE, THEY
WERE ALSO CONTRACTING THE SCOPE OF COMPENSABLE INJURIES AND TO THAT
EXTENT DEFEATING RECOVERY ALTOGETHER.  WE DO NOT THINK THAT CONGRESS
INTENDED TO ACT SO INCONSISTENTLY OR THAT, BY DISPENSING WITH THE
EMPLOYEE'S BURDEN OF PROVING NEGLIGENCE IN CERTAIN CLASSES OF
EMPLOYERS' LIABILITY ACT SUITS, IT HAD ANY PURPOSE TO WITHDRAW FROM
THAT ACT'S COVERAGE ANY INJURY CAUSED BY THE EMPLOYMENT WHICH WAS
COVERED BY ITS TERMS.  IN THE ABSENCE OF ANY SPECIFIC SHOWING THAT
CONGRESS HAD IN MIND SUCH A RESTRICTIVE AND INCONSISTENT OBJECT, WE ARE
NOT FREE TO CREATE ONE BY INFERENCE, MORE ESPECIALLY WHEN IT IS DERIVED
FROM APPROACHING THE PROBLEM AS IF THE BOILER INSPECTION AND SAFETY
APPLIANCE ACTS WERE WHOLLY INDEPENDENT OF AND SEPARATE IN DESIGN AND
PURPOSE FROM THE EMPLOYERS' LIABILITY ACT. 

THE CONGRESSIONAL PURPOSE UNDERLYING THE BOILER INSPECTION ACT IS
BASICALLY THE SAME AS THAT UNDERLYING THE SAFETY APPLIANCE ACTS AND THE
EMPLOYERS' LIABILITY ACT.  IN REQUIRING THAT THE BOILER, AND, NOT LONG
AFTER, THAT THE ENTIRE LOCOMOTIVE, BE MAINTAINED "IN PROPER CONDITION
AND SAFE TO OPERATE," CONGRESS BY ITS OWN STATEMENT WAS ATTEMPTING TO
INSURE THAT SUCH EQUIPMENT "BE EMPLOYED IN  ...  ACTIVE SERVICE  ...
WITHOUT UNNECESSARY PERIL TO LIFE OR LIMB  ...  "  45 U.S.C. SEC. 23. 
CERTAIN REQUIREMENTS OF THE SAFETY APPLIANCE ACTS, AS FOR EXAMPLE THE
USE OF THE AUTOMATIC COUPLER, 45 U.S.C. SEC. 2, ARE MADE MANDATORY BY
EXPRESS STATUTORY LANGUAGE.  OTHERS, LIKE THOSE OF THE BOILER
INSPECTION ACT, SIMPLY OUTLINE A GENERAL STANDARD WHICH MAY BE MORE
SPECIFICALLY ARTICULATED IN RULES ENUNCIATED BY THE CARRIERS SUBJECT TO
THE APPROVAL OF THE INTERSTATE COMMERCE COMMISSION, 45 U.S.C. SEC. 28,
OR DIRECTLY PROMULGATED BY THE COMMISSION, NAPIER V. ATLANTIC COAST
LINE R. CO., 272 U.S. 605, 611-613, ON THE BASIS OF PROPER FINDINGS. 
UNITED STATES V. B. & O.R. CO., 293 U.S. 454.  VIOLATIONS OF THE
COMMISSION'S RULES ARE VIOLATIONS OF THE STATUTE, GIVING RISE NOT ONLY
TO DAMAGE SUITS BY THOSE INJURED, LILLY V. GRAND TRUNK R. CO., SUPRA,
BUT ALSO TO MONEY PENALTIES RECOVERABLE BY THE UNITED STATES.  45
U.S.C. SEC. 34. 

AS WITH THE EMPLOYERS' LIABILITY ACT, WE DO NOT DOUBT THAT THE PRIME
PURPOSE OF THE BOILER INSPECTION ACT WAS THE PROTECTION OF RAILROAD
EMPLOYEES AND PERHAPS ALSO OF PASSENGERS AND THE PUBLIC AT LARGE, CF.
FAIRPORT, P. & E.R. CO. V. MEREDITH, 292 U.S. 589, FROM INJURY DUE TO
INDUSTRIAL ACCIDENT.  THE SAFETY OF ALL THOSE AFFECTED BY RAILROADING
WAS UPPERMOST IN THE LEGISLATIVE MIND.  BUT AGAIN, AS WITH THE
EMPLOYERS' LIABILITY ACT, WE CANNOT ACCEPT THE VIEW THAT PROTECTION OF
EMPLOYEE HEALTH IS NOT EMBRACED BY THE CONGRESSIONAL PLAN.  FN31
INDEED, AS TO THE BOILER INSPECTION ACT, THIS COURT HAS TWICE HAD
OCCASION TO MAKE CLEAR ITS CONTRARY VIEW, NAPIER V. ATLANTIC COAST LINE
R. CO., SUPRA; UNITED STATES V. B. & O.R. CO., SUPRA AT 458-459. 

IN THE NAPIER CASE THE QUESTION FOR DECISION WAS THE VALIDITY OF
WISCONSIN AND GEORGIA REGULATIONS REQUIRING LOCOMOTIVES TO BE EQUIPPED
WITH, RESPECTIVELY, CAB CURTAINS AND AN AUTOMATIC FIRE DOOR.  EACH
STATE REGULATION WAS CHALLENGED AS AN INVASION OF POWER OVER INTERSTATE
COMMERCE WHICH CONGRESS, THROUGH ENACTMENT AND AMENDMENT OF THE BOILER
INSPECTION ACT, HAD SEEN FIT TO EXERCISE.  EACH REGULATION WAS DEFENDED
AS BEING DIRECTED TO PROTECTION OF THE HEALTH, RATHER THAN THE SAFETY,
OF RAILROAD EMPLOYEES.  THE UNANIMOUS COURT, SPEAKING THROUGH MR.
JUSTICE BRANDEIS, STRUCK DOWN BOTH REGULATIONS "BECAUSE THE BOILER
INSPECTION ACT, AS WE CONSTRUE IT, WAS INTENDED TO OCCUPY THE FIELD. 
THE BROAD SCOPE OF THE AUTHORITY CONFERRED UPON THE COMMISSION LEADS TO
THAT CONCLUSION.  BECAUSE THE STANDARD SET BY THE COMMISSION MUST
PREVAIL, REQUIREMENTS BY THE STATES ARE PRECLUDED, HOWEVER, COMMENDABLE
OR HOWEVER DIFFERENT THEIR PURPOSE."  272 U.S. AT 613. 

THIS LAST-QUOTED SENTENCE MERELY RECOGNIZED THAT THERETOFORE THE
INTERSTATE COMMERCE COMMISSION HAD NOT REGULATED WITH AN EYE TO
EMPLOYEE HEALTH; IT DID NOT AND DOES NOT SUPPORT THE VIEW THAT EMPLOYEE
HEALTH WAS THOUGHT NOT TO BE WITHIN THE COMPASS OF THE ACT, AS OTHER
LANGUAGE IN NAPIER, 272 U.S. AT 611-613, MAKES AMPLY CLEAR: 

"THE REQUIREMENTS HERE IN QUESTION ARE, IN THEIR NATURE, WITHIN THE
SCOPE OF THE AUTHORITY DELEGATED TO THE COMMISSION.  AN AUTOMATIC
FIREDOOR AND AN EFFECTIVE CAB CURTAIN MAY PROMOTE SAFETY.  KEEPING
FIREMEN AND ENGINEERS IN GOOD HEALTH, LIKE PREVENTING EXCESSIVE FATIGUE
THROUGH LIMITING THE HOURS OF SERVICE, CLEARLY DOES SO, ALTHOUGH
INDIRECTLY  ...    "IF THE PROTECTION NOW AFFORDED BY THE COMMISSION'S
RULES IS DEEMED INADEQUATE, APPLICATION FOR RELIEF MUST BE MADE TO IT.
THE COMMISSION'S POWER IS AMPLE." 

THUS THE BOILER INSPECTION ACT VESTS IN THE INTERSTATE COMMERCE
COMMISSION RULE-MAKING POWER ADEQUATE TO PROTECT EMPLOYEES AGAINST
DISEASE AS WELL AS AGAINST ACCIDENT; AND THE POWER TO MAKE RULES FOR
EMPLOYEE HEALTH HAS BEEN EXERCISED.  FN32 

IN VIEW OF THESE CONSIDERATIONS, IT CANNOT BE SAID THAT THE
COMMISSION'S RULE-MAKING POWER IS CONFINED TO SAFEGUARDING AGAINST
ACCIDENTAL INJURY; NOR ARE WE FREE TO LAY DOWN A RULE OF LAW WHICH
WOULD SO RESTRICT THE COMMISSION'S AUTHORITY.  SINCE WE ARE UNABLE TO
FIND IN THE BOILER INSPECTION ACT'S TERMS, PURPOSES OR LEGISLATIVE
HISTORY EITHER EXPLICIT PROVISION OR ANY SUFFICIENT BASIS FOR INFERRING
ONE CUTTING DOWN THE SCOPE OF RECOVERY ALLOWED UNDER SEC. 1 OF THE
EMPLOYERS' LIABILITY ACT, WE CONCLUDE THAT THE INJURY FOR WHICH
RECOVERY MAY BE HAD FOR VIOLATION OF THE BOILER INSPECTION ACT IS NO
NARROWER IN SCOPE THAN THE INJURY FOR WHICH RECOVERY IS AUTHORIZED
UNDER SEC. 1 OF THE EMPLOYERS' LIABILITY ACT. 

WE HOLD THAT PETITIONER'S INJURY IS ONE COMPENSABLE UNDER THE BOILER
INSPECTION ACT.  WE HOLD FURTHER, IN THE LIGHT OF THE TRIAL
INSTRUCTIONS AND SUCH EVIDENCE AS APPEARS IN THE RECORD BEFORE US,
FN33  THAT THE JURY WAS JUSTIFIED IN FINDING (1) THAT RESPONDENT
BREACHED THE BOILER INSPECTION ACT (AS MORE SPECIFICALLY ARTICULATED IN
I.C.C. RULE 120, GOVERNING SANDERS)  FN34  AND (2) THAT SUCH BREACH WAS
A PROXIMATE CAUSE OF PETITIONER'S INJURY. 

WE CONCLUDE THAT PETITIONER STATED A VALID CLAIM FOR NEGLIGENT INJURY
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT ON HIS FIRST APPEAL AND THAT
PETITIONER STATED ON BOTH APPEALS AND PROVED ON HIS SECOND A VALID
CLAIM FOR INJURY FLOWING FROM VIOLATION OF THE BOILER INSPECTION ACT. 
THE RECORD BEFORE US REVEALS NO ERROR IN THE JURY'S VERDICT FOR
PETITIONER, WHICH WAS BASED ON THE SECOND THEORY OF THE CASE; THE
DAMAGES AWARDED ARE CONSISTENT WITH EITHER THEORY.  WE HAVE CONSIDERED
AND DISPOSED OF THE VARIOUS GROUNDS OF AFFIRMANCE URGED BY RESPONDENT;
GROUNDS NOT URGED, WHETHER ON THE RECORD BEFORE US OR ON SUCH
SUPPLEMENTAL PORTIONS OF THE STATE COURT RECORD AS RESPONDENT MIGHT
HAVE ASKED US TO REVIEW, ARE WAIVED.  ACCORDINGLY THE JUDGMENT IS
REVERSED AND THE CAUSE IS REMANDED WITH INSTRUCTIONS TO REINSTATE THE
JUDGMENT ON THE VERDICT FOR PETITIONER.  REVERSED. 

FN1  RESPECTIVELY 45 U.S.C. SEC. 51 ET SEQ. AND 45 U.S.C. SEC. 23 ET
SEQ. 

FN2  "SANDER" IS, COLLOQUIALLY, THE NAME GIVEN BY RAILROAD MEN TO THE
ENTIRE APPARATUS APPURTENANT TO A LOCOMOTIVE WHICH STORES SAND AND
PIPES IT TO THE RAILS, AS NEEDED, TO PROVIDE TRACTION.  THE APPARATUS
IS MANDATORY EQUIPMENT IN INTERSTATE COMMERCE, I.C.C. RULE 120, 49
C.F.R. SEC. 91.120; I.C.C. RULE 235, 49 C.F.R. SEC. 91.235.  FOR
SUCCINCT DESCRIPTIONS OF A COMPRESSED-AIR POWERED SANDING APPARATUS,
SEE THE SUCCESSIVE OPINIONS IN ANDERSON V. BALTIMORE & O.R. CO., 89
F.2D 629 AND 96 F.2D 796. 

FN3  SEE NOTE 9. 

FN4  THE SECTION CONTINUES, "AND UNLESS SAID LOCOMOTIVE, ITS BOILER,
TENDER, AND ALL PARTS AND APPURTENANCES THEREOF HAVE BEEN INSPECTED
FROM TIME TO TIME  ...  AND ARE ABLE TO WITHSTAND SUCH TEST OR TESTS AS
MAY BE PRESCRIBED IN THE RULES AND REGULATIONS HEREINAFTER PROVIDED
FOR."  45 U.S.C. SEC. 23, 36 STAT. 913, 38 STAT. 1192, 43 STAT. 659. 

AND ITS APPURTENANCES, 36 STAT. 913.  IT WAS BROADENED IN 1915 TO
INCLUDE THE ENTIRE LOCOMOTIVE AND TENDER, 38 STAT. 1192; AND SEE THE
1924 AMENDMENT.  43 STAT. 659. 

THE SECOND AMENDED COMPLAINT, TO WHICH THE DEMURRER INVOLVED IN THE
FIRST APPEAL APPLIED, DID NOT MENTION SPECIFICALLY EITHER THE FEDERAL
EMPLOYERS' LIABILITY ACT OR THE BOILER INSPECTION ACT, BUT SET FORTH
FACTS GENERALLY FROM WHICH THE STATE SUPREME COURT'S CONCLUSIONS
CONCERNING THE APPLICABILITY OF THOSE ACTS WERE DRAWN. 

FN5  45 U.S.C. SEC. 56.  THE FORMER TWO-YEAR STATUTE OF LIMITATIONS,
35 STAT. 66, WAS LENGTHENED TO THREE YEARS BY THE 1939 AMENDMENT.  53
STAT. 1404. 

FN6  CF. PIECZONKA V. PULLMAN CO., 89 F.2D 353, 356-357. 

FN7  SEE PIECZONKA V. PULLMAN CO., 89 F.2D 353, 356-357. 

FN8  COMPARE THE NEW YORK COURT OF APPEALS' SIMILAR APPLICATION, TO A
SILICOSIS CLAIM, OF THE FEDERAL EMPLOYERS' LIABILITY ACT'S STATUTE OF
LIMITATIONS.  SADOWSKI V. LONG ISLAND R. CO., 292 N.Y. 448, 457-458. 

FN9 THE OPINION RENDERED ON THE FIRST APPEAL, 352 MO. 211,
EXTENSIVELY QUOTES THE ORIGINAL COMPLAINT'S ALLEGATIONS CONCERNING
NEGLIGENCE, ID. AT 215-216; AND A COPY OF THAT COMPLAINT APPEARING IN
THE PRESENT RECORD SHOWS THAT THE QUOTATIONS COMPREHEND SUBSTANTIALLY
ALL OF THE ALLEGATIONS IN THAT RESPECT.  THE PRESENT RECORD DOES NOT
INCLUDE A COPY OF THE TEXT OF THE JUDGMENT RENDERED ON THE FIRST
APPEAL; BUT THAT DEFICIENCY IS MERELY FORMAL, IF IT IS A DEFICIENCY IN
ANY SENSE, SINCE THE OPINIONS ON BOTH APPEALS SUPPLY US WITH FULL
KNOWLEDGE OF THE NATURE AND EFFECT OF THAT JUDGMENT. 

FN10  "AS ITS JUDGMENT UPON THE FIRST WRIT WAS MERELY FOR A REVERSAL
OF THE COURT BELOW AND FOR A  ...  TRIAL, SUCH JUDGMENT, NOT BEING
FINAL, COULD NOT BE MADE THE SUBJECT OF A WRIT  ...  FROM THIS COURT." 
UNITED STATES V. DENVER & R.G.R. CO., 191 U.S. 84, 93.  SEE COE V.
ARMOUR FERTILIZER WORKS, 237 U.S. 413, 418-419; GOSPEL ARMY V. LOS
ANGELES, 331 U.S. 543, AND AUTHORITIES CITED. 

FN11  CF. CREASON V. HARDING, 344 MO. 452, 463-464. 

FN12  IF IT WERE OTHERWISE, OUR CORRECTIVE HAND COULD BE STAYED BY
ANY LOCAL PROCEDURE WHICH CHOSE TO RESOLVE ALL SUBSTANTIAL FEDERAL
QUESTIONS IN AN INTERMEDIATE PHASE OF LITIGATION.  THE PRESENT CASE
LENDS POINT TO LANGUAGE USED BY THIS COURT IN DISMISSING A WRIT OF
ERROR TO A STATE COURT FOR LACK OF A FINAL JUDGMENT:  "WHEN THE
LITIGATION IN THE STATE COURTS IS BROUGHT TO A CONCLUSION, THE CASE MAY
BE BROUGHT HERE UPON THE FEDERAL QUESTIONS ALREADY RAISED AS WELL AS
ANY THAT MAY BE RAISED HEREAFTER; FOR ALTHOUGH THE STATE COURTS, IN THE
PROCEEDINGS STILL TO BE TAKEN, PRESUMABLY WILL FEEL THEMSELVES BOUND BY
THE DECISION HERETOFORE MADE BY THE (STATE) SUPREME COURT ...  AS
LAYING DOWN THE LAW OF THE CASE, THIS COURT WILL NOT BE THUS BOUND." 
GRAYS HARBOR CO. V. COATS-FORDNEY CO., 243 U.S. 251, 256-257. 
ACCORDINGLY, EVEN IF IT WERE ASSUMED THAT NO FEDERAL QUESTION OF
SUBSTANCE WAS DECIDED ON THE SECOND APPEAL AND THAT THE "BASIS FOR OUR
JURISDICTION MUST BE FOUND, IF AT ALL, IN THE DECISION AND OPINION OF
THE STATE SUPREME COURT UPON A PRIOR APPEAL IN THE SAME CASE,"
PETITIONER URIE HAS "INVOKED THE JURISDICTION OF THIS COURT AT THE
FIRST OPPORTUNITY OPEN TO (HIM), AND THE FEDERAL QUESTION, HAVING BEEN
CONSIDERED BY THE STATE SUPREME COURT, IS PROPERLY HERE."  GANT V.
OKLAHOMA CITY, 289 U.S. 98, 100.  SEE, GENERALLY, BOSKEY, FINALITY OF
STATE COURT JUDGMENTS UNDER THE FEDERAL JUDICIAL CODE, 43 COL. L. REV.
1002, 1007, 1016. 

FN13  BAILEY V. CENTRAL VERMONT R. CO., 319 U.S. 350, 352; CHESAPEAKE
& OHIO R. CO. V. KUHN, 284 U.S. 44, 46-47; ST. LOUIS & I.M.R. CO. V.
MCWHIRTER, 229 U.S. 265, 277; SECOND EMPLOYERS' LIABILITY CASES, 223
U.S. 1, 54-55, 57-58.  CF. SCHLEMMER V. BUFFALO, R. & P.R. CO., 205
U.S. 1. 

FN14  SEE, E.G., ELLIS V. UNION PACIFIC R. CO., 329 U.S. 649; WESTERN
& ATL. RAILROAD V. HUGHES, 278 U.S. 496.  CF. BRADY V. SOUTHERN R. CO.,
320 U.S. 476; CHICAGO, M. & ST. P.R. CO. V. COOGAN, 271 U.S. 472. 

FN15  "(2)  DEFENDANT NEGLIGENTLY FAILED TO FURNISH PLAINTIFF  A
REASONABLY SAFE PLACE IN WHICH TO WORK IN THAT THE LOCOMOTIVES ON WHICH
PLAINTIFF WAS REQUIRED TO WORK AS FIREMAN WERE SUPPLIED WITH SAND FOR
THE SANDERS THEREOF WHICH CONTAINED A VERY HIGH PERCENTAGE OF SILICA OR
SILICON DIOXIDE AS ABOVE, AND DEFENDANT KNEW SUCH FACT AND STILL
DEFENDANT USED SAME AND USED SAID ENGINES UNDER THE CONDITIONS ABOVE
DESCRIBED. 

"(3)  ALTHOUGH THE DEFENDANT WAS USING SANDY SUBSTANCE CONTAINING
SUCH QUANTITY OF SILICA, AND USING SAID LOCOMOTIVES THAT WOULD CAUSE
AND ALLOW LARGE QUANTITIES OF SILICA DUST CONTAINING SILICA TO BE
CREATED AND COME INTO THE CAB AND BE INHALED, YET DEFENDANT NEGLIGENTLY
FAILED TO WARN THE PLAINTIFF AND NEGLIGENTLY FAILED TO FURNISH HIM WITH
A RESPIRATOR OR DEVICE TO PREVENT THE INHALATION OF SAID SILICA DUST." 

FN16  THE DECISION IN SADOWSKI V. LONG ISLAND R. CO., 292 N.Y. 448,
SUSTAINING A RECOVERY FOR SILICOSIS UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, CONTAINED THE FOLLOWING STATEMENTS, WHICH ARE RELEVANT
TO THE APPARENT RULING OF THE MISSOURI SUPREME COURT WITH RESPECT TO
COMPLIANCE WITH CUSTOMARY TRADE STANDARDS:  "EVIDENCE THAT SOME
RAILROADS FURNISHED NO SUCH CONTRIVANCES AS PLAINTIFF CLAIMED WERE
NECESSARY FOR THE USE OF MEN WORKING UNDER SIMILAR CONDITIONS OR
FURNISHED SIMILAR PLACES TO WORK FOR MEN DOING WORK SIMILAR TO THAT
REQUIRED OF PLAINTIFF DOES NOT ESTABLISH, AS MATTER OF LAW, THAT NO
SUCH CONTRIVANCES OR NO DIFFERENT PLACE IN WHICH TO WORK OR NO
DIFFERENT APPLIANCES TO CARRY ON THE WORK WERE REQUIRED IN THE CASE AT
BAR IN THE EXERCISE OF ORDINARY CARE.  THE ULTIMATE QUESTION OF FACT
WAS NOT WHAT PARTICULAR PROTECTIVE MEANS SOMEONE ELSE USED IN SIMILAR
WORK.  IT WAS WHETHER OR NOT, UNDER THE PARTICULAR CONDITIONS DESCRIBED
IN THIS CASE, THE DEFENDANT FURNISHED PLAINTIFF A REASONABLY SAFE PLACE
IN WHICH TO WORK AND SUCH PROTECTION IN CONNECTION WITH HIS WORK
AGAINST THE INHALATION OF SILICA DUST AS WOULD BE EXPECTED OF A PERSON
IN THE EXERCISE OF ORDINARY CARE UNDER THOSE CONDITIONS."  292 N.Y. AT
456-457. 

FN17  AFTER QUOTING PETITIONER'S ADMISSION REFERRED TO ABOVE, THE
MISSOURI SUPREME COURT'S OPINION STATED:  "THE IMPLICATION FROM THIS
ALLEGATION IS THAT THE SANDERS AS SUCH WERE NOT DEFECTIVE, BUT THAT THE
TROUBLE WAS MALADJUSTMENT.  JUST WHAT WAS WRONG WITH THE ADJUSTMENT IS
NOT ALLEGED, AND PLAINTIFF DOES NOT CLAIM THAT THE SITUATION IS ONE FOR
THE RES IPSA LOQUITUR RULE."  352 MO. AT 219. 

THE INFERENCE DRAWN BY THE COURT WAS, IN EFFECT, EITHER A RULE OF LAW
THAT USING MALADJUSTED SANDERS COULD NOT BE NEGLIGENCE EVEN THOUGH
CAUSED, AS PETITIONER EXPRESSLY ALLEGED, BY RESPONDENT'S WANT OF DUE
CARE; OR ALTERNATIVELY A RULING, AS MATTER OF LAW, THAT TO CONSTITUTE A
SUFFICIENT SHOWING OF NEGLIGENCE THE ALLEGATION OF MALADJUSTMENT MUST
SPECIFICALLY STATE THE TYPES AND CAUSES OF IT.  NEITHER CONCLUSION
ACCORDS WITH APPLICABLE FEDERAL STANDARDS IN SUCH CASES.  IF THE LATTER
WAS THE COURT'S INTENTION, THE MATTER WAS AT MOST ONE FOR PERMITTING
AMENDMENT OR CURE BY PROOF; IF THE FORMER, THE CONCLUSION RAN IN THE
TEETH BOTH OF FEDERAL AND OF GENERALLY ACCEPTED STANDARDS FOR SHOWING
NEGLIGENCE. 

FN18  NOR DO WE FIND MERIT IN RESPONDENT'S CONTENTION THAT URIE,
PRIOR TO THE 1939 AMENDMENT ABOLISHING ASSUMPTION OF RISK AS A DEFENSE
TO ORDINARY NEGLIGENCE SUITS UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, 45 U.S.C. SEC. 54, 53 STAT. 1404, AMENDING 35 STAT. 66, ASSUMED
THE RISK OF INJURY.  NOTHING IN URIE'S ORIGINAL COMPLAINT REMOTELY
SUGGESTS SUCH KNOWLEDGE ON HIS PART OF THE LIKELIHOOD OF CONTRACTING
SILICOSIS AS WOULD JUSTIFY THE CONCLUSION THAT URIE "ANTICIPATED AND
DECIDED TO CHANCE THE PARTICULAR RISK  ...  "  OWENS V. UNION PACIFIC
R. CO., 319 U.S. 715, 723.  ACCORDINGLY WE ARE NOT CALLED ON TO
DETERMINE WHETHER ANY RETROACTIVE EFFECT IS TO BE GIVEN THE 1939
AMENDMENT, WHICH THIS COURT HAS DESCRIBED AS REQUIRING THAT "CASES
TRIED UNDER THE FEDERAL ACT  ...  BE HANDLED AS THOUGH NO DOCTRINE OF
ASSUMPTION OF RISK HAD EVER EXISTED."  TILLER V. ATLANTIC COAST LINE R.
CO., 318 U.S. 54, 64.  SPECIFICALLY WE NEED NOT CONSIDER WHETHER, EVEN
ASSUMING THE AMENDMENT WAS NOT INTENDED TO COVER INJURIES ACCRUING
BEFORE ITS ENACTMENT BUT SUED ON THEREAFTER (AN OPEN QUESTION IN THIS
COURT, SEE OWENS V. UNION PACIFIC R. CO., SUPRA AT 725), THE AMENDMENT
NONETHELESS COVERS INJURIES WHICH, LIKE URIE'S, ACCRUED AND WERE SUED
ON THEREAFTER BUT WHERE THE BEGINNING OF ALLEGED ASSUMPTION OF RISK MAY
HAVE ANTEDATED THE AMENDMENT. 

FN19  SEE 42 CONG. REC. 4265, 4426-4439, 4526-4551, 4755; H.R. REP.
NO. 1386, 60TH CONG., 1ST SESS.; S. REP. NO. 460, 60TH CONG., 1ST
SESS. 

FN20  "THE ACT IS NOT TO BE NARROWED BY REFINED REASONING  ...  IT IS
TO BE CONSTRUED LIBERALLY TO FULFILL THE PURPOSES FOR WHICH IT WAS
ENACTED  ...  "  JAMISON V. ENCARNACION, 281 U.S. 635, 640.  SIMILARLY,
THE BOILER INSPECTION ACT, "LIKE THE SAFETY APPLIANCE ACT, IS TO BE
LIBERALLY CONSTRUED IN THE LIGHT OF ITS PRIME PURPOSE, THE PROTECTION
OF EMPLOYEES AND OTHERS BY REQUIRING THE USE OF SAFE EQUIPMENT."  LILLY
V. GRAND TRUNK R. CO., 317 U.S. 481, 486. 

FN21  SEE, E.G., CELL V. YALE & TOWNE MFG. CO., 281 MICH. 564, 566;
BUT CF. ID. AT 567-568. 

FN22  HURLE'S CASE, 217 MASS. 223, 224; SEE HOOD & SONS V. MARYLAND
CASUALTY CO., 206 MASS. 223; CF. GENTRY V. SWANN CHEMICAL CO., 234 ALA.
313, 317-318.  SEE BANKS, EMPLOYER'S LIABILITY FOR OCCUPATIONAL
DISEASES, 16 ROCKY MT. L. REV. 60, 61-64. 

FN23  SEE, E.G., JEFFREYES V. SAGER CO., 198 APP. DIV. 446, AFFIRMED
233 N.Y. 535; IWANICKI V. STATE INDUSTRIAL ACCIDENT COMMISSION, 104
ORE.  650.  RESTRICTIVE CONSTRUCTIONS OF THE TERM "ACCIDENT" AND ITS
VARIANTS HAVE GENERALLY BEEN FOLLOWED BY AGITATION, NOW LARGELY
SUCCESSFUL, FOR LEGISLATION SPECIFICALLY EXTENDING COMPENSATION TO
OCCUPATIONAL DISEASE.  SEE, E.G., PERRY, OCCUPATIONAL DISEASE
LEGISLATION, 5 NEWARK L. REV. 83; OCCUPATIONAL DISEASE COMPENSATION, 26
AM. LAB.  LEG.  REV. 2; ANDREWS, THE TRAGEDY OF SILICOSIS, ID. AT 3. 
FOR LOCAL STUDIES OF THE PROBLEMS POSED SEE OWENS, DISEASES AND
INJURIES TO HEALTH UNDER THE WISCONSIN WORKMEN'S COMPENSATION ACT, 1945
WIS. L. REV. 357; 3 JOHN MARSHALL L. Q. 241. 

FN24  CLAIM OF EDWARD EDMONDS, JUNE 23, 1913, OPINIONS OF SOLICITOR,
U.S. DEPARTMENT OF LABOR (1915) 259.    FN25  CLAIM OF WILLARD E. JULE,
JULY 28, 1913, OPINIONS OF SOLICITOR, U.S. DEPARTMENT OF LABOR (1915)
261; CF. CLAIM OF C.M. ARATA, DEC. 31, 1913, ID. AT 264(LEAD POISONING
AND BRONCHITIS). 

FN26  CLAIM OF BASIL E. CLARK, APR. 11, 1914, OPINIONS OF SOLICITOR,
U.S. DEPARTMENT OF LABOR (1915) 270. 

FN27  CLAIM OF EDWARD DEVINE, FEB. 9, 1915, OPINIONS OF SOLICITOR,
U.S. DEPARTMENT OF LABOR (1915) 277.  WHETHER THE EARLIER DECISION THAT
PNEUMONIA WAS NOT COMPENSABLE, CLAIM OF JOHN SHEERAN, APR. 25, 1910, 28
OP. ATTY. GEN. 254, IS CONSISTENT WITH THE FOREGOING CASES, OR WITH
CASES AWARDING COMPENSATION FOR "THE BENDS," CLAIM OF WM. MURRAY, NOV.
3, 1911, OPINIONS OF SOLICITOR, U.S. DEPARTMENT OF LABOR (1915) 239, OR
SUNSTROKE, CLAIM OF J. J. WALSH, MAR. 16, 1911, ID. AT 231, WE NEED NOT
DETERMINE; CONGRESS' DISSATISFACTION WITH THE DISTINCTION IS CLEAR FROM
THE COURSE OF SUBSEQUENT LEGISLATION: 

WHEN THE FEDERAL EMPLOYEES' COMPENSATION ACT OF MAY 30, 1908, WAS
SUPERSEDED IN 1916 BY THE BROADER AND STILL EXTANT GENERAL FEDERAL
EMPLOYEE COMPENSATION SYSTEM, 5 U.S.C. SEC. 751 ET SEQ., THE STATUTE AS
ORIGINALLY ENACTED PROVIDED COMPENSATION FOR "DISABILITY" OR "PERSONAL
INJURY" WITHOUT FURTHER QUALIFICATION OR DEFINITION.  39 STAT. 742. 
PROPOSALS SPECIFICALLY TO INCLUDE OCCUPATIONAL DISEASE WERE REJECTED,
AT LEAST IN PART, FOR THE REASONS THAT AT THE COMMITTEE HEARINGS "THERE
WAS CONSIDERABLE DIFFICULTY IN DEFINING THE TERM 'OCCUPATIONAL
DISEASE'; AND IT WAS ALSO CALLED TO OUR ATTENTION THAT IN QUITE A
NUMBER OF CASES IN A NUMBER OF STATES THE COURT HELD THIS LANGUAGE
WHICH WE HAVE IN THE BILL WOULD COVER OCCUPATIONAL DISEASES IN CERTAIN
CASES - AT LEAST A NUMBER OF THEM  ...  "  53 CONG. REC. 10899.  IN
1924 THE 1916 ACT WAS AMENDED, 43 STAT. 389, "TO CORRECT TWO RULINGS OF
THE COMPTROLLER GENERAL OF THE UNITED STATES  ...  " H.R. REP. NO. 280,
68TH CONG., 1ST SESS. 1.  ONE OF THE RULINGS REMEDIED WAS THAT
OCCUPATIONAL DISEASES WERE NOT INCLUDED WITHIN THE 1916 ACT; THE OTHER
RULING WAS THAT THE COMPTROLLER GENERAL HAD POWER TO REVIEW DECISIONS
OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION.  AS TO THE
FIRST OF THESE ERRORS, THE HOUSE JUDICIARY COMMITTEE, IN REPORTING OUT
THE 1924 AMENDMENT, EXPRESSLY REFERRED TO ITS 1916 REPORT, H.R. REP.
NO. 678, 64TH CONG., 1ST SESS. 7, TO SHOW THAT IN DRAFTING THE 1916 ACT
"THE COMMITTEE INTENDED TO REMEDY THE INADEQUACY OF THE ACT OF MAY 30,
1908, WITH REFERENCE TO 'OCCUPATIONAL DISEASES.'"  H.R. REP. NO. 280,
68TH CONG., 1ST SESS. 3.  SEE 65 CONG. REC. 8154. 

FN28  45 U.S.C. SEC. 1 ET SEQ. 

FN29  SEE NOTE 4 AND TEXT. 

FN30  IN ORDINARY NEGLIGENCE CLAIMS UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, CONTRIBUTORY NEGLIGENCE WHILE NOT A BAR TO THE ACTION IS
AVAILABLE IN DIMINUTION OF DAMAGES, 45 U.S.C. SEC. 53, 35 STAT. 65,
66.  ASSUMPTION OF RISK WAS A COMPLETE DEFENSE TO NEGLIGENCE CLAIMS,
SEABOARD AIR LINE V. HORTON, 233 U.S. 492, 503, UNTIL ITS ABOLITION IN
1939.  45 U.S.C. SEC. 54, 53 STAT. 1404, AMENDING 35 STAT. 66.  SEE
TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54. 

THE QUOTED STATUTORY PHRASE WAS HELD TO ACKNOWLEDGE CREATION OF A
CAUSE OF ACTION "UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT" FOR
PERSONAL INJURY TO AN EMPLOYEE DUE TO VIOLATION OF THE SAFETY APPLIANCE
ACTS, 45 U.S.C. SEC. 1 ET SEQ., SINCE, "BY THE PHRASE 'ANY STATUTE
ENACTED FOR THE SAFETY OF EMPLOYEES' THE CONGRESS EVIDENTLY INTENDED TO
EMBRACE ITS SAFETY APPLIANCE ACTS."  MOORE V. C. & O.R. CO., 291 U.S.
205, 210.  SIMILARLY AN EMPLOYEE INJURY SUIT ALLEGING VIOLATION OF THE
BOILER INSPECTION ACT IS BROUGHT "UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT ...  "  LILLY V. GRAND TRUNK R. CO., 317 U.S. 481, 485. 

FN31  RESPONDENT PLACES SOME RELIANCE ON THE PROPOSITION THAT
CONGRESSIONAL LIMITATION OF THE BOILER INSPECTION ACT TO ACCIDENTAL
INJURY MUST BE INFERRED FROM THE PROVISION REQUIRING THE CARRIER TO
REPORT EVERY LOCOMOTIVE "ACCIDENT" RESULTING IN "SERIOUS INJURY."  45
U.S.C. SEC. 32.  WE SEE NO REASON TO THINK THAT A POLICY REQUIRING THE
REPORTING OF ALL INJURIES THE CAUSES OF WHICH ARE READILY IDENTIFICABLE
IN TERMS OF TIME AND PLACE COMPELS THE CONCLUSION THAT OTHER INJURIES,
THE ORIGINS OF WHICH MAY BE REMOTE AND ILL-DEFINED AT THE MOMENT OF
DIAGNOSIS, SHOULD NOT BE COMPENSABLE WHEN THE CARRIER'S UNDERLYING
RESPONSIBILITY BECOMES A MATTER OF DEMONSTRABLE FACT.  IT IS TO BE
NOTED, FURTHERMORE, THAT AN ARGUMENT SIMILAR TO RESPONDENT'S WAS
REJECTED WITH REFERENCE TO CONGRESSIONAL INTENT TO INCLUDE OCCUPATIONAL
DISEASES IN THE 1916 FEDERAL EMPLOYEES' COMPENSATION ACT, H.R. REP. NO.
280, 68TH CONG., 1ST SESS. 3, AND, ALTHOUGH ADVANCED WITH REFERENCE TO
THE 1908 FEDERAL EMPLOYEES' COMPENSATION ACT, CLAIM OF A.E. CLARK, DEC.
17, 1908, OPINIONS OF SOLICITOR, U.S. DEPARTMENT OF LABOR (1915) 188,
190, DID NOT BAR COMPENSATION OF THE QUESTIONABLY "ACCIDENTAL" INJURIES
DESCRIBED IN THE TEXT AT NOTES 24-27 SUPRA. 

FN32  E.G., THE REQUIREMENT FOR CLOSING "UNNECESSARY OR EXCESSIVE
OPENINGS IN LOCOMOTIVE CABS," IMPOSED BY I.C.C. RULE 116(G), 49 C.F.R.
SEC. 91.116(G), AFTER THE NAPIER DECISION, WAS, AS THE OPINION
ANNOUNCING THE RULE MAKES PLAIN, DESIGNED TO PROTECT THE HEALTH OF
FIREMEN AND ENGINEERS FROM WIND, SNOW AND RAIN.  WISCONSIN R.R. COMM'N
V. A. & R.R. CO., 142 I.C.C. 199.  THE RULE, NOT SQUARELY APPLICABLE TO
THE PRESENT CASE SINCE LIMITED TO THE WINTER MONTHS, WAS FORMULATED
AFTER EXTENDED HEARINGS IN A PROCEEDING IN WHICH THE MISSOURI PACIFIC,
LIKE ALMOST EVERY OTHER MAJOR AMERICAN RAILROAD, WAS A NAMED PARTY
DEFENDANT.  WISCONSIN R.R. COMM'N V. A. & R.R. CO., SUPRA, TRANSCRIPT
OF RECORD, COMPLAINT OF RAILROAD COMMISSION OF WISCONSIN, P. 17.  IN
THE LIGHT OF THE INSTANT CASE, IT IS OF INTEREST TO NOTE THAT THE
ENGINEERS' BROTHERHOOD AND THE FIREMEN'S BROTHERHOOD, INTERVENERS IN
SUPPORT OF THE PROPOSED RULE, ALLEGED NEED FOR PROTECTION FROM, INTER
ALIA, "EXCESSIVE  ...  SAND AND DUST STORMS."  TRANSCRIPT OF RECORD,
SUPRA, JOINT PETITION OF INTERVENTION OF ALVANLEY JOHNSTON AND D. B.
ROBERTSON, P. 3; AMENDED JOINT PETITION OF INTERVENTION OF ALVANLEY
JOHNSTON AND D. B. ROBERTSON, P. 3.  NO SUBSTANTIAL EVIDENCE SEEMS TO
HAVE BEEN ADDUCED TO SUPPORT THE ALLEGATION, TRANSCRIPT OF RECORD,
SUPRA, BRIEF FOR INTERVENING BROTHERHOODS, PP. 14-15, ALTHOUGH THERE
WAS EVIDENCE OF SEVERE WINTER WIND IN MISSOURI, TRANSCRIPT OF RECORD,
SUPRA, AT 2056, AND IN OTHER PARTS OF THE COUNTRY, ID. AT 2136, 2369,
4541, 5005, 6088, 6350.  THE INTERSTATE COMMERCE COMMISSION NOTED IN
ITS OPINION THAT "THE AMENDMENTS TO RULE 116 SHOULD BE REGARDED AS
MINIMUM REQUIREMENTS WHICH ARE NOT INTENDED TO TAKE CARE OF THE MOST
EXTREME CONDITIONS."  142 I.C.C. 199, 210. 

FN33  THE ONLY EVIDENCE BEFORE US IS THE PARTIAL SUMMARY OF
PETITIONER'S CASE BY THE MISSOURI SUPREME COURT ON THE SECOND APPEAL:
"BRUCE BRILL, A WITNESS FOR PLAINTIFF, TESTIFIED HE HAD WORKED AT THE
MISSOURI PACIFIC ROUNDHOUSE AT JOPLIN FOR ABOUT 18 YEARS AND UNTIL
NOVEMBER 4, 1942; THAT THE 'ENGINES THAT CAME IN  ...  I WOULD SAY MOST
OF THEM, AT LEAST THREE OUT OF FIVE, WOULD HAVE THE SANDERS REPORTED IN
BAD ORDER  ...  MAYBE IT WAS A BROKEN NIPPLE, SOMETHING IN THE DOME, OR
A LOOSE CONNECTION.'  A BROKEN NIPPLE WOULD CAUSE THE SAND TO DRIBBLE
ON TO THE RAILS UNDER THE DRIVERS, AND THE 'SPEED WOULD SUCK IT UP INTO
THE CAB AFTER IT WAS GROUND UNDER THE WHEELS.'  THE DUST WOULD BE
SUCKED IN 'THROUGH THE DECK AND AROUND THE BOILER HEAD OR OPENINGS IN
THE GRATE SHAKERS.'  WHEN THE WITNESS CLEANED OUT THE CABS HE FOUND
SAND PARTICLES AND ROADBED DUST.  ... PLAINTIFF TESTIFIED THE (SAND)
DUST WOULD 'COME UP THROUGH THE OPENINGS IN THE CAB FLOORS, AROUND THE
GRATE SHAKER RIGGINGS AND THE STOKER HEAD IN THE DECK OF THE ENGINE ON
EACH SIDE OF THE FIRE DOOR AGAINST THE BOILER HEAD.  ...  SOMETIMES
THERE WOULD BE WIDE CRACKS BETWEEN THE BOILER HEAD AND THE DECK FLOOR
WHERE THE BOLTS WERE BROKEN OFF AND IT WAS WORN AND LOOSE.  THE DECK
BOARDS WOULD BE CRACKED AND SOMETIMES SLIVERED OUT, AND IT WOULD COME
THROUGH ANY OPENINGS LIKE THAT; ...  WOULD COLLECT ON THE LIGHTS; ...
WOULD GET OUR CLOTHING VERY DUSTY; ...  MAKE YOUR MOUTH AND NOSE VERY
DRY.'"  357 MO. AT 744-745. 

FN34  I.C.C. RULE 120, 49 C.F.R. SEC. 91.120, APPLICABLE TO STEAM
LOCOMOTIVES, PROVIDES: "LOCOMOTIVES SHALL BE EQUIPPED WITH PROPER
SANDING APPARATUS, WHICH SHALL BE MAINTAINED IN SAFE AND SUITABLE
CONDITION FOR SERVICE, AND TESTED BEFORE EACH TRIP.  SAND PIPES MUST BE
SECURELY FASTENED IN LINE WITH THE RAILS." 

IT IS OF NO CONSEQUENCE THAT RULE 120 MAY NOT HAVE BEEN SPECIFICALLY
CALLED TO THE JURY'S ATTENTION.  LILLY V. GRAND TRUNK R. CO., 317 U.S.
481, 488-489.  IT IS URGED UPON US THAT RULE 120 WAS DESIGNED TO INSURE
AN ADEQUATE AUXILIARY BRAKING SYSTEM RATHER THAN TO PROTECT EMPLOYEES
AGAINST SILICOSIS, AND HENCE THAT, NOTWITHSTANDING RESPONDENT'S BREACH
OF THE RULE AND THE GOVERNING STATUTE, PETITIONER CANNOT COMPLAIN OF AN
INJURY FLOWING FROM THE BREACH WHICH WAS NOT THE INJURY THE INTERSTATE
COMMERCE COMMISSION SOUGHT TO GUARD AGAINST.  WE DO NOT DISPUTE THE
NARROW SCOPE OF RULE 120; NOR DO WE DOUBT THAT CONVENTIONAL TORT
DOCTRINE IMPOSES ABSOLUTE LIABILITY FOR VIOLATION OF A STATUTORY DUTY
ONLY WHERE THE INJURY IS ONE THE STATUTE WAS DESIGNED TO PREVENT.  SEE,
E.G., DICAPRIO V. NEW YORK CENTRAL R. CO., 231 N.Y. 94; BUT CF. THE
REMARKS OF MR. JUSTICE BREWER IN ATCHISON, T. & S.F.R. CO. V. REESMAN,
60 F. 370, 373.  BUT WE THINK THE LIABILITY IMPOSED BY THE BOILER
INSPECTION ACT IS OF BROADER CHARACTER AND THAT THE CORRECT RULE IS THE
ONE LAID DOWN IN LOUISVILLE & N.R. CO. V. LAYTON, 243 U.S. 617, 621,
WHICH THIS COURT HAS HAD REPEATED OCCASION TO APPLY IN CONNECTION WITH
THE SAFETY APPLIANCE ACTS:  "THE LANGUAGE OF THE ACTS AND THE
AUTHORITIES WE HAVE CITED MAKE IT ENTIRELY CLEAR THAT THE LIABILITY IN
DAMAGES TO EMPLOYEES FOR FAILURE TO COMPLY WITH THE LAW SPRINGS FROM
ITS BEING MADE UNLAWFUL TO USE CARS NOT EQUIPPED AS REQUIRED,  - NOT
FROM THE POSITION THE EMPLOYEE MAY BE IN OR THE WORK WHICH HE MAY BE
DOING AT THE MOMENT WHEN HE IS INJURED.  THIS EFFECT CAN BE GIVEN TO
THE ACTS AND THEIR WISE AND HUMANE PURPOSE CAN BE ACCOMPLISHED ONLY BY
HOLDING, AS WE DO, THAT CARRIERS ARE LIABLE TO EMPLOYEES IN DAMAGES
WHENEVER THE FAILURE TO OBEY THESE SAFETY APPLIANCE LAWS IS THE
PROXIMATE CAUSE OF INJURY TO THEM WHEN ENGAGED IN THE DISCHARGE OF
DUTY."  SEE DAVIS V. WOLFE, 263 U.S. 239, 243; CORAY V. SOUTHERN
PACIFIC CO., 335 U.S. 520, 522-523; BRADY V. TERMINAL R. ASSN., 303
U.S. 10, 16; SWINSON V. CHICAGO, ST. P., M. & O.R. CO., 294 U.S. 529,
531; FAIRPORT, P. & E.R. CO. V. MEREDITH, 292 U.S. 589.  CF.
MINNEAPOLIS & ST. LOUIS R. CO. V. GOTSCHALL, 244 U.S. 66; ST. LOUIS &
S.F.R. CO. V. CONARTY, 238 U.S. 243. 

MR. JUSTICE FRANKFURTER, CONCURRING IN PART. 

AT THE RISK OF WEARISOME REITERATION IT IS RELEVANT TO SAY AGAIN THAT
THE COMMON-LAW CONCEPT OF NEGLIGENCE IS AN ANTIQUATED AND UNCIVILIZED
BASIS FOR WORKING OUT RIGHTS AND DUTIES FOR DISABILITIES AND DEATHS
INEVITABLY DUE TO THE CONDUCT OF MODERN INDUSTRY.  IN THE CONSCIOUS OR
UNCONSCIOUS ENDEAVOR NOT TO HAVE THE HUMAN COST OF INDUSTRY FALL WITH
CRUEL INJUSTICE UPON WORKERS AND THEIR FAMILIES, THE LAW OF NEGLIGENCE
GIVES RISE TO ENDLESS CASUISTRY.  SO LONG AS THE GAMBLE OF AN
OCCASIONAL HEAVY VERDICT IS NOT REPLACED BY THE SECURITY OF A MODERN
SYSTEM OF INSURANCE, COURTS MUST CONTINUE TO APPLY THE NOTION OF
NEGLIGENCE IN SITUATIONS FOR WHICH IT WAS NEVER INTENDED.  THEREFORE,
IF A CLAIM IS MADE THAT AN INJURY IS CAUSALLY RELATED TO A CARRIER'S
FAILURE TO MAINTAIN STANDARDS OF CARE APPROPRIATE FOR EMPLOYMENT ON A
RAILROAD, THE FEDERAL EMPLOYERS' LIABILITY ACT ENTITLES AN EMPLOYEE TO
ESTABLISH THAT CLAIM TO A JURY'S SATISFACTION.  DAMAGES ARE RECOVERABLE
UNDER THAT ACT FOR SUFFERING "INJURY."  THAT TERM, IT SEEMS TO ME, IS
SUFFICIENTLY BROAD TO INCLUDE BODILY INJURY WHICH NOWADAYS IS MORE
SPECIFICALLY CHARACTERIZED AS "OCCUPATIONAL DISEASE."  ACCORDINGLY, I
AGREE THAT RECOVERY MAY BE HAD UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT FOR SILICOSIS, WHERE THE FACTS SUSTAIN SUCH A CLAIM, AS IS
ILLUSTRATED BY THE CASE OF SADOWSKI V. LONG ISLAND R. CO., 292 N.Y.
448, 55 N.E.2D 497. 

ON THE OTHER HAND, I AGREE WITH THE MISSOURI SUPREME COURT THAT
OCCUPATIONAL DISEASES CANNOT BE FITTED INTO THE CATEGORY OF "ACCIDENTS"
FOR WHICH THE BOILER INSPECTION ACT DEVISED A SCHEME OF REGULATION AND
A BASIS OF LIABILITY.  36 STAT. 913, AS AMENDED, 45 U.S.C. SECS. 22
34.  I THINK I APPRECIATE THE HUMANE IMPULSE WHICH SEEKS TO BRING
OCCUPATIONAL DISEASES WITHIN SUCH A REGIME.  BUT DUE REGARD FOR THE
LIMITS OF JUDICIAL INTERPRETATION PRECLUDES SUCH FREE-HANDED
APPLICATION OF A STATUTE TO SITUATIONS OUTSIDE ITS LANGUAGE AND ITS
PURPOSE.  TO DO SO, MOREOVER, IS, I BELIEVE, A DISSERVICE TO THE HUMANE
ENDS WHICH ARE SOUGHT TO BE PROMOTED.  LEGISLATION IS NEEDED WHICH WILL
EFFECTIVELY MEET THE SOCIAL OBLIGATIONS WHICH UNDERLIE THE INCIDENCE OF
OCCUPATIONAL DISEASE.  SEE NATIONAL INSURANCE (INDUSTRIAL INJURIES)
ACT, 1946, 9 & 10 GEO. 6, 488, PARTICULARLY PART IV.  THE NEED FOR SUCH
LEGISLATION BECOMES OBSCURED AND THE DRIVE FOR IT RETARDED IF
ENCOURAGEMENT IS GIVEN TO THE THOUGHT THAT THERE ARE NOW ADEQUATE
REMEDIES FOR OCCUPATIONAL DISEASES IN CALLINGS SUBJECT TO CONGRESSIONAL
CONTROL.  THE RESULT OF THE PRESENT DECISION IS TO SECURE FOR THIS
PETITIONER THE JUDGMENT WHICH THE JURY AWARDED HIM.  IT DOES NOT SECURE
A PROPER SYSTEM FOR DEALING WITH OCCUPATIONAL DISEASES. 

I WOULD REVERSE THIS JUDGMENT AND REMAND THE CASE TO THE SUPREME
COURT OF MISSOURI FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 

MR. JUSTICE REED, MR. JUSTICE JACKSON, AND
..END :






















UNITED STATES V. PENN MFG. CO., 337 U.S. 198 


NO. 253.  ARGUED JANUARY 7, 10, 1949.  - DECIDED MAY 31, 1949.  - 110
CT. CL. 374, 75 F.2D 319, REVERSED. 


IT WAS ERROR FOR THE COURT OF CLAIMS TO GIVE A JUDGMENT TO A
MANUFACTURER AGAINST THE UNITED STATES FOR LOSS OF ANTICIPATED PROFITS
UNDER A CONTRACT FOR THE MANUFACTURE OF GUN MOUNTS FOR THE NAVY WHICH
WAS CANCELLED A FEW DAYS AFTER IT WAS AWARDED, WHEN THE COURT FAILED TO
MAKE ANY AFFIRMATIVE FINDING THAT THE MANUFACTURER WAS READY AND ABLE
TO PERFORM ITS CONTRACTUAL OBLIGATIONS AND WHEN IT MADE AFFIRMATIVE
FINDINGS WHICH PRECLUDED ANY INFERENCE THAT SUCH READINESS AND CAPACITY
EXISTED.  PP. 199, 210-214. 

(A)  IN THE ABSENCE OF ACTUAL TENDERS OF THE REQUIRED GUN MOUNTS, THE
MANUFACTURER'S READINESS AND CAPACITY TO DELIVER THEM IN THE QUANTITIES
AND AT THE TIMES REQUIRED BY THE CONTRACT WAS ESSENTIAL TO ITS RIGHT TO
RECEIVE PAYMENTS UNDER THE CONTRACT.  PP. 210-211. 

(B)  THE AFFIRMATIVE FINDINGS IN THIS CASE ADD UP TO AN INESCAPABLE
ULTIMATE FINDING THAT THE MANUFACTURER WAS NEITHER READY NOR ABLE TO
MAKE THE DELIVERIES REQUIRED BY THE CONTRACT.  PP. 202-203, 212-213. 

(C)  A FINDING THAT, "IF THE PLAINTIFF HAD BEEN PERMITTED TO PERFORM
ITS CONTRACT, IT WOULD HAVE MADE A NET PROFIT OF NOT LESS THAN
$80,000," WAS NO MORE THAN A ROUGH ESTIMATE OF THE AMOUNT OF ITS
REASONABLY ANTICIPATED PROFITS (IF THE CONTRACT WERE COMPLETED) AND
CANNOT BE TAKEN AS A FINDING THAT IT WAS READY AND ABLE TO MAKE THE
DELIVERIES UPON WHICH SUCH PROFITS DEPENDED.  P. 213. 

(D)  THE MERE HOPE OF BEING ABLE TO OBTAIN FROM THE GOVERNMENT
GRATUITOUS EXTENSIONS OF TIME OR CONCESSIONS IN THE NUMBERS OF GUN
MOUNTS TO BE DELIVERED CANNOT JUSTIFY AN AWARD OF MONEY DAMAGES FOR
LOSS OF UNEARNED ANTICIPATED PROFITS DEPENDENT UPON SUCH GRATUITOUS
EXTENSIONS OR CONCESSIONS.  PP. 213-214. 

UNITED STATES V. PENN FOUNDRY & MANUFACTURING CO., INC. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS AWARDED A JUDGMENT TO A MANUFACTURER FOR LOSS OF
ANTICIPATED PROFITS UNDER A CONTRACT FOR THE MANUFACTURE OF GUN MOUNTS
FOR THE NAVY WHICH WAS CANCELLED A FEW DAYS AFTER IT WAS AWARDED.  110
CT. CL. 374, 75 F.2D 319.  THIS COURT GRANTED CERTIORARI.  335 U.S.
857.  REVERSED, P. 214. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION WHICH WAS BROUGHT IN THE COURT OF CLAIMS BY THE
RESPONDENT, PENN FOUNDRY AND MANUFACTURING COMPANY, INC., AGAINST THE
UNITED STATES FOR LOSS OF ANTICIPATED PROFITS ALLEGED TO HAVE BEEN
CAUSED BY THE LATTER'S CANCELLATION OF A CONTRACT FOR GUN MOUNTS FOR
THE NAVY.  THE CANCELLATION OCCURRED A FEW DAYS AFTER THE CONTRACT HAD
BEEN AWARDED BY THE UNITED STATES TO THE RESPONDENT ON FEBRUARY 23,
1942.  THE QUESTION PRESENTED IS WHETHER THE FINDINGS OF FACT MADE BY
THE COURT OF CLAIMS ARE SUFFICIENT TO SUSTAIN ITS JUDGMENT REQUIRING
THE UNITED STATES TO PAY FOR SUCH LOSS.  110 CT. CL. 374, 75 F.SUPP. 
319.  WE HOLD THAT THEY ARE NOT.  WE SO HOLD BECAUSE OF (1) THE ABSENCE
OF ANY FINDING OF THE READINESS AND CAPACITY OF THE RESPONDENT TO
PERFORM CERTAIN OF ITS CONTRACTUAL OBLIGATIONS UPON WHICH ITS PROFITS
WERE CONTINGENT AND (2) THE PRESENCE OF CERTAIN AFFIRMATIVE FINDINGS
WHICH PRECLUDE THE DRAWING OF ANY SUFFICIENT INFERENCE OF SUCH
READINESS AND CAPACITY FROM THE OTHER FINDINGS. 

THE RECORD INCLUDES ONLY THE PLEADINGS AND ACCOMPANYING EXHIBITS
FILED IN THE COURT OF CLAIMS AND THAT COURT'S SPECIAL FINDINGS OF FACT,
CONCLUSION OF LAW, OPINION, JUDGMENT AND REFUSAL TO GRANT A NEW TRIAL. 
WE DO NOT HAVE BEFORE US THE REPORT WHICH ITS COMMISSIONER MADE TO THE
COURT OF CLAIMS OR THE TESTIMONY UPON WHICH HE OR THAT COURT RELIED. 
WHILE ADDITIONAL CLAIMS WERE MADE BY THE RESPONDENT IN ITS ORIGINAL
PETITION TO THE COURT OF CLAIMS AND WHILE THE UNITED STATES ORIGINALLY
CONTESTED THE BINDING FORCE OF THE CONTRACT, THE ERRORS SPECIFIED IN
THE PRESENT PROCEEDING QUESTION ONLY THE RIGHT OF THE RESPONDENT TO
RECOVER $80,000 AS DAMAGES FOR ITS ALLEGED LOSS OF ANTICIPATED
PROFITS.  WE GRANTED CERTIORARI BECAUSE OF THE POSSIBLE RELATION OF THE
RESULT IN THIS CASE TO CLAIMS UNDER MANY WAR CONTRACTS CANCELLED BY THE
UNITED STATES.  335 U.S. 857. 

THE FINDINGS OF FACT SHOW THE FOLLOWING: 

IN 1911, THE RESPONDENT BOUGHT A MANUFACTURING PLANT CONSISTING OF
SIX BUILDINGS IN WAYNESBORO, VIRGINIA.  THE MAIN BUILDINGS, EACH 57 X
100 FEET, HAD BEEN BUILT IN 1890 AND WERE REFERRED TO RESPECTIVELY AS
THE MACHINE SHOP, THE FOUNDRY AND THE BLACKSMITH SHOP.  AT ONE TIME THE
RESPONDENT MANUFACTURED CIRCULAR SAWS AND, AT ANOTHER, DID WORK ON
BRAKE SHOES.  SINCE 1931, THE PLANT HAD BEEN USED ONLY FOR MINOR
ENGAGEMENTS, REQUIRING NOT MORE THAN FOUR OR FIVE EMPLOYEES.  IT HAD
BEEN IDLE FOR SOME YEARS WHEN, LATE IN 1940 OR EARLY IN 1941, THE
RESPONDENT'S OFFICERS BECAME DESIROUS OF ENGAGING IN THE NATIONAL
DEFENSE PROGRAM.  MOST OF THOSE OFFICERS WERE THEN IN OTHER BUSINESSES
AT OR NEAR PITTSBURGH, PENNSYLVANIA.  ONE STOCKHOLDER AND DIRECTOR WAS
IN THE REAL ESTATE BUSINESS IN WAYNESBORO.  HE HAD BEEN THE LOCAL
MANAGER OF THE PLANT WHEN IT WAS IN OPERATION AND HAD CONTINUED
THEREAFTER AS SUCH AND AS THE STATUTORY AGENT OF THE COMPANY. 

IN JANUARY, 1941, THE RESPONDENT ENGAGED AN ADDITIONAL MAN AS
ASSISTANT TO THE PRESIDENT AND, ON FEBRUARY 24, 1942, AN ENGINEER AS
GENERAL MANAGER.  IN APRIL, 1941, IT SUBMITTED A PROPOSAL TO THE NAVY
FOR THE MANUFACTURE OF 500 3-INCH 50-CALIBER GUN MOUNTS.  IN JULY, A
REPRESENTATIVE OF THE GUN MOUNT SECTION OF THE NAVY DEPARTMENT
INSPECTED THE PLANT.  FOLLOWING A CONFERENCE IN SEPTEMBER, THE
RESPONDENT WAS ASKED BY THE GOVERNMENT TO FURNISH INFORMATION AS TO
FINANCIAL ABILITY, COMMITMENTS OF SUBCONTRACTORS, AND A DETAILED STUDY
OF THE MACHINE TOOL OPERATIONS, PREDICATED UPON A POSSIBLE AWARD OF 150
3-INCH 50-CALIBER MOUNTS.  IN OCTOBER AND DECEMBER, THE RESPONDENT
SUBMITTED ADDITIONAL INFORMATION AND SLIGHTLY MODIFIED ITS PROPOSALS. 
DECEMBER 22, THE RESPONDENT'S PROPOSAL AS TO PRICES, QUANTITIES,
DELIVERY SCHEDULE, PAYMENTS AND OPTIONS FOR ADDITIONAL MOUNTS WAS
ACCEPTED AS SATISFACTORY AND THE RESPONDENT AGREED TO SECURE A LETTER
FROM A SURETY COMPANY INDICATING THAT A BOND OF THE NATURE REQUIRED BY
THE NAVY'S BUREAU OF SUPPLIES AND ACCOUNTS WOULD BE FURNISHED. 

THE RESPONDENT RECEIVED A "LETTER OF INTENT," DATED DECEMBER 29,
1941, SIGNED BY THE PAYMASTER GENERAL OF THE NAVY AS CONTRACTING
OFFICER AND APPROVED BY THE UNDER SECRETARY OF THE NAVY.  IT STATED
THAT IT WAS ANTICIPATED THAT THE NAVY DEPARTMENT WOULD PLACE AN ORDER
WITH THE RESPONDENT FOR THE MANUFACTURE OF 150 GUN MOUNTS.  IT
SPECIFIED THE DELIVERY OF TWO COMPLETE MOUNTS IN MAY, 1942, THREE IN
JUNE, FIVE IN JULY, AND THEREAFTER AT A MINIMUM RATE OF TEN MOUNTS PER
MONTH.  THE LETTER ALSO AUTHORIZED THE RESPONDENT TO PURCHASE MATERIALS
AND SPARE PARTS, SUBJECT TO CONFIRMATION BY THE GOVERNMENT'S PURCHASING
OFFICER, AND TO PROCEED WITH THE PRODUCTION OF THE MOUNTS IN
ANTICIPATION OF THE PLACING OF THE ORDER FOR THEIR PRODUCTION. 
HOWEVER, UNDER DATE OF JANUARY 7, 1942, THE GOVERNMENT HELD UP THIS
AUTHORIZATION OF EXPENDITURES UNTIL SUCH TIME AS THE RESPONDENT
FURNISHED THE GOVERNMENT WITH THE FIRM COMMITMENT OF AN APPROVED SURETY
COMPANY TO ACT AS SURETY ON A PERFORMANCE BOND.  JANUARY 10, THE
RESPONDENT ACCEPTED THE LETTER OF INTENT.  JANUARY 29, THE NAVY
DEPARTMENT STATED THAT THE NECESSARY LETTER FROM A SURETY COMPANY HAD
NOT BEEN RECEIVED AND THAT FAILURE PROMPTLY TO SUBMIT SUCH A LETTER
MIGHT RESULT IN THE TERMINATION OF THE LETTER OF INTENT.  FEBRUARY 3,
THE RESPONDENT'S REPRESENTATIVES SUBMITTED A LETTER FROM A SURETY
COMPANY INDICATING THAT THAT COMPANY THOUGHT THAT A BOND IN CONNECTION
WITH A CONTRACT OF THIS SIZE WOULD HAVE TO BE REINSURED AND THAT,
UNLESS SOME CHANGE WERE MADE IN THE FINANCIAL SETUP, REINSURANCE WOULD
BE DECLINED.  IT ADDED, HOWEVER, THAT, IF EITHER OF TWO SUGGESTED PLANS
RELATIVE TO REFINANCING WERE ACCOMPLISHED AND IF THE RESPONDENT
FURNISHED CERTAIN INFORMATION AS TO NEW KEY PERSONNEL TO BE ENGAGED BY
THE RESPONDENT, THEN THE REINSURANCE COULD BE OBTAINED AND THE SURETY
COMPANY COULD EXECUTE A BOND.  THE FINDINGS OF FACT DISCLOSE A
DIFFERENCE IN THE TESTIMONY AS TO THE REACTION OF THE GOVERNMENT'S
REPRESENTATIVE TO THIS LETTER.  THERE IS NO FINDING THAT THE
GOVERNMENT'S REQUIREMENT IN THIS REGARD EVER WAS MET. 

MUCH IN THE FOLLOWING FINDINGS OF FACT NOS. 5-8 IS VITAL TO THE ISSUE
BEFORE US: 

"5.  ON JANUARY 16 AND 17, 1942, PLAINTIFF'S PLANT WAS VISITED BY
INSPECTORS OF THE PHILADELPHIA INSPECTION DISTRICT OF THE NAVY
DEPARTMENT TO INSTRUCT PLAINTIFF'S PERSONNEL AS TO THE NAVY INSPECTION
REQUIREMENTS.  AT THE TIME THERE WAS NO ONE AT THE PLANT EXCEPT THE
WATCHMAN AND THE LOCAL MANAGER.  NO WORK AT ALL WAS BEING PERFORMED AT
THE TIME.  ON FEBRUARY 19, 1942, A PRODUCTION SPECIALIST FROM THE WAR
PRODUCTION BOARD VISITED THE PLANT.  HIS DUTIES WERE TO ASSIST
PRODUCTION IN FACTORIES IN THE PRODUCTION OF NAVAL ORDNANCE.  AT THAT
TIME ONLY THE WATCHMAN WAS AT THE PLANT.  THE PRODUCTION SPECIALIST
INSPECTED THE PLANT WITH THE LOCAL MANAGER, WHO WAS CALLED FROM HIS
REAL ESTATE OFFICE, AND ALSO TALKED WITH MR. JOHNSON (THE NEW ASSISTANT
TO THE PRESIDENT), WHO WAS CALLED TO WAYNESBORO FOR THAT PURPOSE. 
REPORTS OF THESE VISITS WERE GIVEN TO THE NAVY DEPARTMENT.  AT THAT
TIME THE COMPANY WAS NOT PREPARED TO UNDERTAKE WORK OF THE CHARACTER
PROPOSED BY THE CONTRACT, AND WOULD NOT FOR AN INDEFINITE TIME BE
PREPARED SUCCESSFULLY TO COMPLETE A CONTRACT FOR 150 GUN MOUNTS. 
PLAINTIFF'S FOUNDRY WAS INCAPABLE OF PRODUCTION OF THE CAST STEEL
FORGINGS REQUIRED FOR THE GUN MOUNTS.  IT WAS PLAINTIFF'S PLAN, AS
SHOWN BY ITS PROPOSAL TO THE GOVERNMENT, TO SUBCONTRACT FOR THESE
CASTINGS, AS WELL AS FOR OTHER PARTS OF THE WORK.  PLAINTIFF HAD
CONTACTED CERTAIN PRODUCERS, WHO WERE WILLING TO FURNISH CASTINGS AND
OTHER PARTS, BUT NO CONTRACTS FOR THE CASTINGS OR ANY OTHER PARTS HAD
BEEN MADE BY PLAINTIFF.  THERE WAS NO REASON TO SUPPOSE THAT THE
PLAINTIFF COULD NOT HAVE OBTAINED THESE PARTS FROM SUBCONTRACTORS. 
PLAINTIFF PLANNED TO USE AROUND 150 MECHANICS, SKILLED, SEMI-SKILLED,
AND UNSKILLED, IN THE MACHINING AND ASSEMBLING OF THE GUN MOUNTS. 
PLAINTIFF HAD EXPECTED TO SECURE FORMER RAILROAD SHOP MECHANICS
RESIDING NEAR WAYNESBORO AS THE BULK OF ITS EMPLOYEES.  THE
CONSTRUCTION OF GUN MOUNTS IS DIFFICULT AND EXACTING WORK. 
MANUFACTURERS EXPERIENCED IN SOMEWHAT SIMILAR WORK WITH LARGE
ORGANIZATIONS AND TRAINED MECHANICS REQUIRED FROM SEVEN MONTHS TO ONE
YEAR FROM THE TIME OF RECEIVING NOTICE TO PROCEED UNTIL THE FIRST GUN
MOUNTS WERE PRODUCED.  PLAINTIFF HAD NO MANUFACTURING ORGANIZATION AND
NO FORCE OF TRAINED PERSONNEL TO TRAIN UNSKILLED EMPLOYEES. 
PLAINTIFF'S PROPOSED GENERAL MANAGER WAS AT THIS TIME A REGULAR
EMPLOYEE OF ANOTHER COMPANY IN OHIO.  HE HAD BEEN ASSISTING PLAINTIFF
IN ITS PLANS UNDER THE EXPECTATION THAT HE WOULD SEVER HIS CONNECTION
WITH THE OTHER COMPANY AND BECOME PLAINTIFF'S GENERAL MANAGER.  A
CONTRACT BETWEEN PLAINTIFF AND THE ENGINEER UNDER THE TERMS OF WHICH
THE ENGINEER WAS ENGAGED AS GENERAL MANAGER WAS EXECUTED ON FEBRUARY
24, 1942. 

"6.  UNDER DATE OF FEBRUARY 23, 1942, THE NAVY DEPARTMENT MAILED TO
PLAINTIFF A NOTICE OF AWARD OF CONTRACT, NO. LL96553, FOR GUN MOUNTS,
IN THE AMOUNT OF $2,087,555, WHICH NOTICE OF AWARD WAS RECEIVED BY THE
PLAINTIFF ON FEBRUARY 24, 1942.  ON FEBRUARY 24, 1942, AFTER IT HAD
RECEIVED THE NOTICE OF AWARD, PLAINTIFF RECEIVED A TELEGRAM AS
FOLLOWS: 

"NOTICE OF AWARD CONTRACT NOS 96553 FORWARDED IN ERROR RETURN FOR
CANCELLATION NO AWARD TO YOU ACKNOWLEDGE REFERRING SYMBOL SPF - 

"RAY SPEAR PAYMASTER GENERAL NAVY 

"ON MARCH 5, 1942, THE NAVY DEPARTMENT PREPARED AND MAILED TO
PLAINTIFF A LETTER AS FOLLOWS: 

     .         .         .         .       . 

"AS IT IS APPARENT THAT YOU CANNOT SECURE A BOND TO INSURE FAITHFUL
PERFORMANCE OF THE CONTRACT, NO CONTRACT WILL BE ISSUED TO YOU, AND THE
LETTER OF INTENT LL-NOS-96553(SPC), DATED 29 DECEMBER 1941, IS HEREBY
CANCELLED. 

"SINCE NO AUTHORITY HAS BEEN GIVEN YOU TO INCUR ANY EXPENSES UNDER
THE LETTER OF INTENT, THERE CAN BE NO LIABILITY ON THE GOVERNMENT BY
REASON OF THE CANCELLATION OF THE LETTER OF INTENT. 

"PLEASE RETURN THE ORIGINAL AND ALL COPIES OF THE LETTER OF INTENT,
UNSIGNED, TO THE BUREAU OF SUPPLIES AND ACCOUNTS FOR CANCELLATION. 

"7.  ...  THE EVIDENCE DOES NOT DISCLOSE THAT ANY EXPENDITURES OR
EXPENSES WERE INCURRED IN RELIANCE ON THE LETTER OF INTENT OR NOTICE OF
AWARD OF CONTRACT. 

"8.  IF THE PLAINTIFF HAD BEEN PERMITTED TO PERFORM ITS CONTRACT, IT
WOULD HAVE MADE A NET PROFIT OF NOT LESS THAN $80,000."  110 CT. CL. AT
PP. 378-381. 

WE ARE BOUND BY THE FOREGOING FINDINGS IN TESTING THE COURT'S
CONCLUSION OF LAW AND JUDGMENT THAT THE RESPONDENT IS ENTITLED TO
RECOVER $80,000 FOR THE LOSS OF ANTICIPATED BUT UNEARNED PROFITS. 
UNITED STATES V. CAUSBY, 328 U.S. 256, 267; UNITED STATES V. SEMINOLE
NATION, 299 U.S. 417, 422; UNITED STATES V. ESNAULT-PELTERIE, 299 U.S.
201, 205, 206; CROCKER V. UNITED STATES, 240 U.S. 74, 78; STONE V.
UNITED STATES, 164 U.S. 380, 382, 383. 

THE RESTRICTED SCOPE OF THE ERRORS SOUGHT TO BE REACHED BY THE
PETITION FOR CERTIORARI HAS ELIMINATED ALL QUESTIONS AS TO THE BINDING
FORCE OF THE CONTRACT.  FN1  THE GOVERNMENT, HOWEVER, ARGUES THAT,
UNDER THE THEN EXISTING STATUTES AND REGULATIONS, IT HAD A RIGHT TO
CANCEL THE CONTRACT AT ITS OPTION WITHOUT INCURRING LIABILITY FOR THE
RESPONDENT'S ALLEGED LOSS OF ANTICIPATED PROFITS CAUSED BY SUCH
CANCELLATION.  FN2  IT ARGUES ALSO THAT THE PRACTICE OF INSERTING, IN
EACH CONTRACT FOR WAR SUPPLIES, AN EXPRESS PROVISION PERMITTING SUCH A
CANCELLATION BY THE UNITED STATES HAD DEVELOPED TO SUCH AN EXTENT THAT
WE SHOULD RECOGNIZE THE PROVISIONS AS CONSTITUTING A PART OF THE FORMAL
CONTRACT WHICH THE GOVERNMENT STATED WAS TO FOLLOW THE AWARD MADE TO
THE RESPONDENT, FEBRUARY 23, 1942.  FN3  IT IS NOT NECESSARY, HOWEVER,
TO SUSTAIN THOSE CLAIMS IN ORDER TO SUPPORT THE DISPOSITION WHICH WE
ARE MAKING OF THIS CASE. 

THE GOVERNMENT ARGUES FURTHER THAT THE AMOUNT OF THE DAMAGES CLAIMED
BY THE RESPONDENT IS NOT ESTABLISHED WITH REASONABLE CERTAINTY BY THE
FINDINGS OF FACT.  THE ONLY FINDING AS TO THE AMOUNT OF SUCH DAMAGES IS
THE ULTIMATE FINDING OF FACT NO. 8, WHICH SAYS THAT "IF THE PLAINTIFF
HAD BEEN PERMITTED TO PERFORM ITS CONTRACT, IT WOULD HAVE MADE A NET
PROFIT OF NOT LESS THAN $80,000."  FN4 THERE ARE NO FINDINGS OF
EVIDENTIARY OR PRIMARY FACTS ON THE SUBJECT OF DAMAGES OR THE
COMPUTATION OF ANTICIPATED NET PROFITS.  THE TOTAL PAYMENT TO BE MADE
TO THE RESPONDENT FOR FULL PERFORMANCE OF ITS PART OF THE CONTRACT WAS
FIXED BY THE AWARD AT $2,087,555.  ACCORDINGLY, THE AMOUNT OF THE GROSS
RECEIPTS ANTICIPATED BY THE RESPONDENT IS NOT A REMOTE OR SPECULATIVE
ESTIMATE OF THE KIND OFTEN ENCOUNTERED IN CLAIMS FOR ANTICIPATED
PROFITS.  THIS COURT LONG HAS RECOGNIZED THE RIGHT TO RECOVER DAMAGES
FOR THE LOSS OF ANTICIPATED PROFITS WHEN THEY RESULT FROM A BREACH OF
CONTRACT AND WHEN THERE IS A SUFFICIENT BASIS FOR ESTIMATING THEM WITH
REASONABLE CERTAINTY.  FN5  HOWEVER, FINDING NO. 8 AS TO THE
ANTICIPATED NET PROFITS IN THE INSTANT CASE STANDS ALONE.  ITS
SUFFICIENCY IS OPEN TO ARGUMENT IN THE ABSENCE OF ANY FINDINGS AS TO
THE COSTS OF PRODUCTION.  THE RESPONDENT SEEKS SUPPORT FOR IT IN THE
INDIRECT LIGHT THROWN UPON IT BY THE OPINION OF THE COURT BELOW. 
HOWEVER, EVEN IF THAT OPINION MAY BE RESORTED TO TO HELP INTERPRET,
ALTHOUGH NOT TO SUPPLEMENT, THE COURT'S FINDINGS OF FACT, IT DOES NOT
MATERIALLY STRENGTHEN THE RESPONDENT'S POSITION.  FOR EXAMPLE, AFTER
RECITING CERTAIN OF THE RESPONDENT'S HANDICAPS IN SUPPLYING THE GUN
MOUNTS, TO SAY NOTHING OF SUPPLYING THEM AT A NET PROFIT, THE OPINION
SAYS (P. 387):    "WE THINK THAT THE CONSIDERATION AND TOLERANCE WITH
WHICH THE GOVERNMENT, DURING THE TIME HERE IN QUESTION, TREATED
CONTRACTORS ACTUALLY ENGAGED IN PRODUCING DEFENSE MATERIAL, IF THE
CONTRACTOR IN GOOD FAITH DID HIS BEST TO PERFORM, IS AN INDICATION THAT
THE PLAINTIFF, IF ALLOWED TO PERFORM, WOULD PROBABLY HAVE SUCCEEDED IN
MAKING A PROFIT. 

"ON THE OTHER HAND, IT MUST BE SAID THAT THE PLAINTIFF WOULD HAVE HAD
PROBLEMS AND DIFFICULTIES THAT AN ACTIVE, GOING CONCERN WOULD NOT HAVE
HAD, AND THOSE DIFFICULTIES WOULD PROBABLY HAVE ADVERSELY AFFECTED ITS
PROFITS.  ON THE WHOLE WE CAN DO ONLY WHAT A JURY WOULD DO IN A SIMILAR
CASE.  WE CONCLUDE THAT THE PLAINTIFF WOULD PROBABLY HAVE MADE NET
PROFITS OF ABOUT 4% OF THE GROSS CONTRACT PRICE, AND WE AWARD IT
$80,000." 

THE OPINION CONTRIBUTES NOTHING ON THE SUBJECT OF COSTS EXCEPT AN
EMPHASIS UPON THE BURDEN OF THEM.  THE OPINION POINTS ONLY TO A
SUGGESTED RULE OF THUMB AS A MEANS OF ESTIMATING THE RESPONDENT'S
ANTICIPATED NET PROFITS.  IT SUGGESTS THAT THE NET PROFITS, UNDER THE
CIRCUMSTANCES OF THIS CASE, SHOULD BE "ABOUT 4% OF THE GROSS CONTRACT
PRICE,  ...  " 

WHETHER OR NOT A REEXAMINATION OF ALL THE EVIDENCE THAT WAS BEFORE
THE COURT BELOW MIGHT CURE THIS UNCERTAINTY WE CANNOT TELL.  WE CAN
CONCLUDE ONLY THAT, ON THE LIMITED FINDINGS BEFORE US, THE AMOUNT, IF
ANY, OF THE RESPONDENT'S ANTICIPATED NET PROFIT RESTS UPON THAT COURT'S
ROUGH ESTIMATE RATHER THAN UPON ITS FINDINGS OF EVIDENTIARY FACTS.  WE
DO NOT, HOWEVER, DECIDE THE CASE ON THAT ISSUE.  MORE FUNDAMENTAL TO
THE RESPONDENT'S CASE THAN THE AMOUNT OF ITS ANTICIPATED PROFITS IS THE
NEED FOR PROOF OF THE HIGHLY MATERIAL FACTS OF ITS WILLINGNESS,
READINESS AND CAPACITY TO MANUFACTURE AND DELIVER THE REQUIRED GUN
MOUNTS IN THE QUANTITIES AND AT THE TIMES SPECIFIED. 

1.  THERE IS NO FINDING OF THE READINESS AND CAPACITY OF THE
RESPONDENT TO DELIVER THE GUN MOUNTS IN THE QUANTITIES AND AT THE TIMES
REQUIRED BY THE CONTRACT.  - IN THE ABSENCE OF ACTUAL TENDERS OF THE
REQUIRED GUN MOUNTS, SUCH READINESS AND CAPACITY ARE ESSENTIAL FACTS
MATERIAL TO THE RESPONDENT'S RIGHT TO RECEIVE PAYMENTS UNDER THE
CONTRACT.  WITHOUT A RIGHT TO SUCH PAYMENTS THE RESPONDENT COULD
REALIZE NO PROFITS.  SEE RESTATEMENT, CONTRACTS SECS. 284, 280(1), 281,
318(C), 395, 397(1932).  THIS ISSUE GOES DEEPER THAN THAT OF THE
REQUIRED REASONABLE CERTAINTY OF THE AMOUNT OF THE ANTICIPATED NET
PROFITS CLAIMED AS DAMAGES.  IN A NUMBER OF CASES WHERE THIS COURT HAS
ALLOWED RECOVERY FOR THE LOSS OF ANTICIPATED PROFITS, IT HAS EMPHASIZED
ITS FINDING OF A DEMONSTRATED WILLINGNESS, READINESS AND CAPACITY, ON
THE PART OF THE CLAIMANT, TO PERFORM THE OBLIGATIONS WHICH, IF
PERFORMED, WOULD HAVE ENTITLED THE CLAIMANT TO PAYMENT UNDER THE
CONTRACT.  FOR EXAMPLE, IN UNITED STATES V. PURCELL ENVELOPE CO., 249
U.S. 313, THE UNITED STATES, WITHOUT ADEQUATE CAUSE TO DO SO, CANCELLED
A RECENTLY MADE CONTRACT TO PURCHASE, FROM THE PURCELL ENVELOPE
COMPANY, A FOUR-YEARS' SUPPLY OF ENVELOPES AND WRAPPERS FOR THE POST
OFFICE DEPARTMENT FOR $2,460,556.22.  THIS COURT AFFIRMED A JUDGMENT OF
THE COURT OF CLAIMS AWARDING THE COMPANY $185,331.76 FOR ITS LOSS OF
ANTICIPATED NET PROFITS WHICH IT WOULD HAVE RECEIVED IF IT HAD BEEN
ALLOWED TO PERFORM THE CONTRACT.  IN THAT CASE THIS COURT SAID (P.
316):  "THE ENVELOPE COMPANY HAD, HOWEVER, ALREADY MADE ARRANGEMENTS
AND CONTRACTS FOR THE SUPPLYING TO IT OF THE NECESSARY MATERIALS TO
FULFILL THE TERMS OF THE CONTRACT AND WAS READY AND WILLING AT ALL
TIMES TO FULLY PERFORM IT ACCORDING TO ITS TERMS."  AGAIN (P. 319):
"THERE IS NO CHARGE OF DEFAULT AGAINST THE ENVELOPE COMPANY, NO CHARGE
OF INABILITY TO PERFORM ITS CONTRACT,  ...  "  AND FINALLY (P. 321):
"THE COURT (OF CLAIMS) IN ITS OPINION EXPRESSLY DECLARES THAT THE
FINDINGS SHOWED THAT THE ENVELOPE COMPANY HAD FULFILLED ALL THE
REQUIREMENTS OF THE POSTMASTER GENERAL AND WAS READY AND WILLING TO
FURNISH THE ENVELOPES AND WRAPPERS  ...  "  SEE ALSO, HINCKLEY V.
PITTSBURGH STEEL CO., 121 U.S. 264, 276; SMOOT'S CASE, 15 WALL.  36,
44; UNITED STATES V. SPEED, 8 WALL.  77, 84. 

IN ITS PETITION FOR A WRIT OF CERTIORARI IN THE INSTANT CASE, THE
UNITED STATES SPECIFIED THAT THE COURT OF CLAIMS ERRED IN FAILING TO
MAKE THE FINDING THAT THE RESPONDENT HAD NOT PROVED THAT IT COULD HAVE
SUCCESSFULLY PERFORMED THE CONTRACT AND MADE A PROFIT THEREON.  WHETHER
OR NOT IT WAS ERROR TO FAIL TO MAKE SUCH AN EXPRESS FINDING OF THE
RESPONDENT'S FAILURE OF PROOF, IT IS CLEAR THAT THERE WAS WHOLLY ABSENT
FROM THE COURT'S FINDINGS ANY EXPRESS STATEMENT THAT THE RESPONDENT WAS
READY AND CAPABLE OF PERFORMING ITS OBLIGATIONS UNDER THE CONTRACT.  IT
DID CONSTITUTE ERROR TO RENDER JUDGMENT FOR RECOVERY OF DAMAGES BY THE
RESPONDENT IN THE ABSENCE OF THAT MATERIAL FACT.  THERE REMAINS ONLY
THE QUESTION WHETHER AN INFERENCE OF THE REQUIRED READINESS AND
CAPACITY OF THE RESPONDENT TO PERFORM ITS OBLIGATIONS UNDER THE
CONTRACT CAN BE INFERRED FROM THE OTHER FINDINGS. 

2.  THE PRESENCE OF CERTAIN AFFIRMATIVE FINDINGS PRECLUDES THE
DRAWING OF ANY SUFFICIENT INFERENCE OF THE RESPONDENT'S READINESS AND
CAPACITY TO DELIVER THE GUN MOUNTS IN THE QUANTITIES AND AT THE TIMES
REQUIRED.  - THE RESPONDENT HAS THE BURDEN OF PROOF.  FINDING OF FACT
NO. 5, QUOTED IN FULL, SUPRA, AT PP. 202-203, TELLS THE STORY.  THE
AFFIRMATIVE EVIDENTIARY FINDINGS THERE MADE ADD UP TO AN INESCAPABLE
ULTIMATE FINDING THAT THE RESPONDENT WAS NOT EITHER READY OR CAPABLE OF
MAKING THE REQUIRED DELIVERIES OF TWO COMPLETE GUN MOUNTS IN MAY, 1942,
THREE IN JUNE, FIVE IN JULY AND THEREAFTER AT A MINIMUM RATE OF TEN GUN
MOUNTS A MONTH.  FEBRUARY 19, ABOUT THREE AND ONE-THIRD MONTHS BEFORE
THE FIRST DELIVERY WAS DUE, PRODUCTION WAS NOT UNDER WAY, EVEN IN A
PRELIMINARY STAGE. 

"AT THAT TIME THE COMPANY WAS NOT PREPARED TO UNDERTAKE WORK OF THE
CHARACTER PROPOSED BY THE CONTRACT, AND WOULD NOT FOR AN INDEFINITE
TIME BE PREPARED SUCCESSFULLY TO COMPLETE A CONTRACT FOR 150 GUN
MOUNTS.  ...  MANUFACTURERS EXPERIENCED IN SOMEWHAT SIMILAR WORK WITH
LARGE ORGANIZATIONS AND TRAINED MECHANICS REQUIRED FROM SEVEN MONTHS TO
ONE YEAR FROM THE TIME OF RECEIVING NOTICE TO PROCEED UNTIL THE FIRST
GUN MOUNTS WERE PRODUCED.  PLAINTIFF HAD NO MANUFACTURING ORGANIZATION
AND NO FORCE OF TRAINED PERSONNEL TO TRAIN UNSKILLED EMPLOYEES." 
FINDING NO. 5, 110 CT. CL. AT P. 379. 

THE FINDINGS OF FACT SHOW ALSO THAT THE FOLLOWING STATEMENT WAS MADE
TO THE RESPONDENT IN THE GOVERNMENT'S LETTER OF MARCH 5, 1942, AFTER
THE GOVERNMENT'S INSISTENCE UPON A PERFORMANCE BOND: "AS IT IS APPARENT
THAT YOU CANNOT SECURE A BOND TO INSURE FAITHFUL PERFORMANCE OF THE
CONTRACT, NO CONTRACT WILL BE ISSUED TO YOU,  ...  "  FINDING NO. 6,
ID. AT P. 380.  THERE IS NO FINDING THAT THE RESPONDENT EVER MET OR WAS
CAPABLE OF MEETING THIS REQUIREMENT. 

AS AGAINST THESE DEVASTATING FINDINGS, ONLY FINDING OF FACT NO. 8
EVEN SUGGESTS THE RESPONDENT'S READINESS AND CAPACITY TO PERFORM THE
OBLIGATIONS NECESSARY TO ENTITLE IT TO COMPENSATION UNDER THE
CONTRACT.  IT SAYS:  "IF THE PLAINTIFF HAD BEEN PERMITTED TO PERFORM
ITS CONTRACT, IT WOULD HAVE MADE A NET PROFIT OF NOT LESS THAN
$80,000."  ID. AT P. 381. 

THIS IS NO MORE THAN A ROUGH ESTIMATE BY THE COURT OF CLAIMS OF WHAT
WOULD BE THE AMOUNT OF THE RESPONDENT'S REASONABLY ANTICIPATED PROFITS
IF THE CONTRACT WERE COMPLETED.  IT IS NOT A FINDING THAT THE
RESPONDENT WAS READY AND CAPABLE OF MAKING THE DELIVERIES UPON WHICH
SUCH PROFITS MUST DEPEND.  THE STRIKING FACT IS THAT THE OTHER FINDINGS
OF THE COURT OF CLAIMS SHOW THAT THE RESPONDENT WAS NOT PREPARED TO
MAKE THOSE DELIVERIES AND THAT THIS WAS DUE TO THE RESPONDENT'S OWN
LACK OF CAPACITY TO PERFORM ITS OBLIGATIONS.  TO SUPPORT THE JUDGMENT
OF THE COURT BELOW, THIS ULTIMATE FINDING OF FACT NO. 8 WOULD HAVE TO
BE READ AS ITSELF SUPPLYING THE MISSING FINDING OF THE RESPONDENT'S
READINESS AND CAPACITY TO PERFORM ITS FULL OBLIGATIONS.  IN THAT ROLE
IT FAILS UTTERLY.  IT NOT ONLY CONTAINS NO EVIDENTIARY FINDINGS ON THE
SUBJECT BUT IF IT IS REGARDED AS IMPLYING THEM THEY COME INTO DIRECT
CONFLICT WITH THE EVIDENTIARY FINDINGS OF FACT, NOS. 5 AND 6, TO THE
CONTRARY. 

THE POSSIBILITY, SUGGESTED IN THE OPINION, OF SECURING FROM THE
GOVERNMENT GRATUITOUS EXTENSIONS OF TIME OR CONCESSIONS IN THE NUMBERS
OF GUN MOUNTS TO BE DELIVERED MAY HAVE JUSTIFIED THE RESPONDENT'S HOPE
THAT IT MIGHT ULTIMATELY PRODUCE, WITH INEXPERIENCED LABOR IN ITS
REHABILITATED PLANT, THE NEW PRODUCTS CALLED FOR BY THE CONTRACT.  SUCH
A POSSIBILITY, HOWEVER, CANNOT JUSTIFY THE AWARD OF MONEY DAMAGES BY
THE COURT OF CLAIMS TO EQUAL A LOSS OF UNEARNED ANTICIPATED PROFITS
DEPENDENT UPON SUCH POSSIBLE GRATUITOUS EXTENSIONS OR CONCESSIONS. 
EVEN ASSUMING THE WILLINGNESS OF THE RESPONDENT TO PERFORM ITS
OBLIGATIONS, PROOF OF ITS ESSENTIAL READINESS AND CAPACITY TO DO SO IS
MISSING. 

THE JUDGMENT OF THE COURT OF CLAIMS ACCORDINGLY IS REVERSED AND THE
CAUSE IS REMANDED WITH DIRECTION TO ENTER JUDGMENT IN FAVOR OF THE
UNITED STATES.  REVERSED. 

FN1  THE GOVERNMENT'S BRIEF SAYS IN A FOOTNOTE THAT "THE FINDING OF
THE COURT BELOW THAT A BINDING CONTRACT WAS CONSUMMATED IS, IN OUR
VIEW, OF DOUBTFUL SOUNDNESS."  HOWEVER, IN THE SAME BRIEF, THE
GOVERNMENT SAYS THAT "THE UNITED STATES DOES NOT QUESTION IN THIS COURT
THE COURT OF CLAIMS' HOLDING THAT THE NOTICE OF AWARD SENT BY THE AWARD
CREATED A BINDING CONTRACT BETWEEN THE UNITED STATES AND RESPONDENT ON
FEBRUARY 23, 1943(1942)."  THE COURT OF CLAIMS SAID IN ITS OPINION:
"WE THINK THAT THE GOVERNMENT MADE A CONTRACT WITH THE PLAINTIFF, AND
THAT NO MISTAKE OF THE KIND WHICH WOULD VITIATE A CONTRACT OCCURRED." 
110 CT. CL. AT P. 385.  IN ITS SPECIFICATION OF ERRORS TO BE URGED, AND
IN ITS STATEMENT OF THE QUESTIONS PRESENTED BY ITS PETITION FOR A WRIT
OF CERTIORARI, THE GOVERNMENT DOES NOT QUESTION THE BINDING FORCE OF
THE CONTRACT.  "ONLY THE QUESTIONS SPECIFICALLY BROUGHT FORWARD BY THE
PETITION FOR WRIT OF CERTIORARI WILL BE CONSIDERED."  RULE 38, P2, OF
THIS COURT. 

FN2  TITLE II, FIRST WAR POWERS ACT OF 1941, C. 593, 55 STAT. 839,
SEC. 201, 50 U.S.C. APP. SEC. 611; EXECUTIVE ORDER NO. 9001, 3 C.F.R.
CUM. SUPP. 1054-1056.  SEE ALSO, CONTRACT SETTLEMENT ACT OF 1944, C.
358, 58 STAT. 649, 41 U.S.C. SEC. 101, ET SEQ.; ACT OF AUGUST 7, 1946,
C. 864, 60 STAT. 902, 41 U.S.C. SEC. 106 NOTE; REGULATION NO. 7, OFFICE
OF CONTRACT SETTLEMENT, 32 C.F.R. 1944 SUPP., SEC. 8006.3(C), P. 3065;
OFFICE OF CONTRACT SETTLEMENT, A HISTORY OF WAR CONTRACT TERMINATIONS
AND SETTLEMENTS P. 27(JULY, 1947).  AS TO COMPARABLE LEGISLATION
AFFECTING CONTRACTS FOR SUPPLIES IN WORLD WAR I, SEE ACT OF JUNE 15,
1917, C. 29, 40 STAT. 182; ACT OF MARCH 2, 1919, C. 94, 40 STAT. 1272;
DE LAVAL STEAM TURBINE CO. V. UNITED STATES, 284 U.S. 61; BARRETT CO.
V. UNITED STATES, 273 U.S. 227; COLLEGE POINT BOAT CORP. V. UNITED
STATES, 267 U.S. 12; RUSSELL CO. V. UNITED STATES, 261 U.S. 514. 

FN3  SEE LETTER FROM JAMES FORRESTAL, ACTING SECRETARY OF THE NAVY,
OCTOBER 10, 1943, HEARINGS BEFORE A SUBCOMMITTEE ON CONTRACT
TERMINATION OF THE SENATE COMMITTEE ON MILITARY AFFAIRS ON S. 1268, S.
1280 AND S.J. RES. 80, 78TH CONG., 1ST SESS. 270-273(1943), IN WHICH HE
SAID (P. 271): 

"THE NAVY DEPARTMENT COMMENCED IN THE SUMMER OF 1941 THE
CONSIDERATION OF CONTRACT TERMINATION AS IT MIGHT AFFECT PROCUREMENT. 
AT THAT TIME THERE WERE FEW ACTUAL TERMINATIONS IN CONTEMPLATION. 
CONTRACTORS WERE, NEVERTHELESS, QUESTIONING THE GOVERNMENT'S RIGHT TO
TERMINATE CONTRACTS AND FAIR PROVISIONS PERMITTING SUCH TERMINATION
WITHOUT CAUSE AND DEFINING THE RIGHTS OF THE PARTIES IN SUCH EVENT WERE
DEEMED NECESSARY TO FACILITATE THE URGENTLY NEEDED PROCUREMENT AND TO
MINIMIZE DIFFICULTIES IN THE EVENT OF CHANGING NEEDS.  A CONTRACT
CLAUSE ENDEAVORING TO MEET THE PROCUREMENT PROBLEM AND SAFEGUARD THE
INTERESTS OF BOTH THE GOVERNMENT AND THE CONTRACTORS WAS THEN ADOPTED
AND, EXCEPT IN RESPECT OF THE SHIP CONSTRUCTION CONTRACTS (A SPECIAL
PROBLEM), IS IN GENERAL FORM AND SUBSTANCE IN USE IN NAVY CONTRACTS
TODAY." 

SEE ALSO, MEMORANDUM OF THE INDUSTRIAL READJUSTMENT BRANCH, SUBMITTED
BY JAMES FORRESTAL, AS UNDER SECRETARY OF THE NAVY, JANUARY 11, 1944,
IN WHICH IT WAS STATED THAT IN THE NAVY - 

"STANDARD TERMINATION CLAUSES FOR FIXED PRICE CONTRACTS WERE
DEVELOPED LATE IN 1941, AND IN GENERAL FORM AND SUBSTANCE HAVE BEEN
INSERTED IN MOST CONTRACTS ENTERED INTO SINCE THAT TIME EXCEPT FOR SHIP
CONSTRUCTION CONTRACTS, WHICH CONSTITUTE A SEPARATE PROBLEM.  THE
DEPARTMENT HAS NOT UNDERTAKEN TO MODIFY OUTSTANDING CONTRACTS BY THE
INSERTION OF SUCH CLAUSES."  APPENDIX II, ID. AT P. 553(1944). 

FN4  THE SCOPE OF OUR REVIEW OF JUDGMENTS OF THE COURT OF CLAIMS IS A
LIMITED ONE.  THE EARLY PRACTICE AND RULES ARE DISCUSSED IN LUCKENBACH
S.S. CO. V. UNITED STATES, 272 U.S. 533, 536-540.  AT THE TIME OF ALL
THE PROCEEDINGS IN THE COURT OF CLAIMS IN THE INSTANT CASE, THE
AUTHORITY OF THIS COURT TO REVIEW CAUSES UPON PETITION FOR A WRIT OF
CERTIORARI WAS SET FORTH EXPRESSLY IN THE ACT OF FEBRUARY 13, 1925, C.
229, 43 STAT. 939, SEC. 3(B), AS AMENDED BY THE ACT OF MAY 22, 1939, C.
140, 53 STAT. 752, WHICH BECAME 28 U.S.C. SEC. 288(B).  IT PROVIDED: 
"(B)  IN ANY CASE IN THE COURT OF CLAIMS,  ...  IT SHALL BE COMPETENT
FOR THE SUPREME COURT, UPON THE PETITION OF EITHER PARTY, WHETHER
GOVERNMENT OR CLAIMANT, TO REQUIRE, BY CERTIORARI, THAT THE CAUSE BE
CERTIFIED TO IT FOR REVIEW AND DETERMINATION OF ALL ERRORS ASSIGNED,
WITH THE SAME POWER AND AUTHORITY, AND WITH LIKE EFFECT, AS IF THE
CAUSE HAD BEEN BROUGHT THERE BY APPEAL.  IN SUCH EVENT, THE COURT OF
CLAIMS SHALL INCLUDE IN THE PAPERS CERTIFIED BY IT THE FINDINGS OF
FACT, THE CONCLUSIONS OF LAW, AND THE JUDGMENT OR DECREE, AS WELL AS
SUCH OTHER PARTS OF THE RECORD AS ARE MATERIAL TO THE ERRORS ASSIGNED,
TO BE SETTLED BY THE COURT.           .         .         .         .
. 

"IN SUCH CASES THE SUPREME COURT SHALL HAVE AUTHORITY TO REVIEW, IN
ADDITION TO OTHER QUESTIONS OF LAW, ERRORS ASSIGNED TO THE EFFECT THAT
THERE IS A LACK OF SUBSTANTIAL EVIDENCE TO SUSTAIN A FINDING OF FACT;
THAT AN ULTIMATE FINDING OR FINDINGS ARE NOT SUSTAINED BY THE FINDINGS
OF EVIDENTIARY OR PRIMARY FACTS; OR THAT THERE IS A FAILURE TO MAKE ANY
FINDING OF FACT ON A MATERIAL ISSUE." 

THE FOREGOING EXPRESSLY CONTROLLED THE PRACTICE UNTIL REPEALED BY THE
NEW JUDICIAL CODE, EFFECTIVE SEPTEMBER 1, 1948.  THE NEW CODE, 28
U.S.C. SEC. 1255, SAID MERELY: 

"CASES IN THE COURT OF CLAIMS MAY BE REVIEWED BY THE SUPREME COURT BY
THE FOLLOWING METHODS: 

"(1)  BY WRIT OF CERTIORARI GRANTED ON PETITION OF THE UNITED STATES
OR THE CLAIMANT; ...  " 

THE REVISER'S NOTES TO THAT SECTION SAID: 

"PROVISIONS FOR AUTHORITY TO REVIEW, IN ADDITION TO OTHER QUESTIONS
OF LAW, 'ERRORS ASSIGNED TO LACK OF EVIDENCE TO SUSTAIN A FINDING OF
FACTS; THAT AN ULTIMATE FINDING OR FINDINGS ARE NOT SUSTAINED BY
FINDINGS OF EVIDENTIARY OR PRIMARY FACTS; OR THAT THERE IS A FAILURE TO
MAKE A FINDING OF FACT ON A MATERIAL ISSUE,' WERE OMITTED AS
UNNECESSARY."  H.R. REP. NO. 308, 80TH CONG., 1ST SESS. A107(1947). 

FN5  AFTER DISCUSSING THE GENERAL RULE AGAINST THE RECOVERY OF REMOTE
AND SPECULATIVE ANTICIPATED PROFITS, THIS COURT SAID IN HOWARD V.
STILLWELL & BIERCE MFG. CO., 139 U.S. 199, 206: 

"BUT IT IS EQUALLY WELL SETTLED THAT THE PROFITS WHICH WOULD HAVE
BEEN REALIZED HAD THE CONTRACT BEEN PERFORMED, AND WHICH HAVE BEEN
PREVENTED BY ITS BREACH, ARE INCLUDED IN THE DAMAGES TO BE RECOVERED IN
EVERY CASE WHERE SUCH PROFITS ARE NOT OPEN TO THE OBJECTION OF
UNCERTAINTY OR OF REMOTENESS, OR WHERE FROM THE EXPRESS OR IMPLIED
TERMS OF THE CONTRACT ITSELF, OR THE SPECIAL CIRCUMSTANCES UNDER WHICH
IT WAS MADE, IT MAY BE REASONABLY PRESUMED THAT THEY WERE WITHIN THE
INTENT AND MUTUAL UNDERSTANDING OF BOTH PARTIES AT THE TIME IT WAS
ENTERED INTO.  UNITED STATES V. BEHAN, 110 U.S. 338, 345, 346, 347;
WESTERN UNION TEL. CO. V. HALL, 124 U.S. 444, 454, 456; PHILADELPHIA,
WILMINGTON & BALTIMORE RAILROAD CO. V. HOWARD, 13 HOW.  307." 

SEE ALSO, ANVIL MINING CO. V. HUMBLE, 153 U.S. 540, 550; CINCINNATI
GAS CO. V. WESTERN SIEMENS CO., 152 U.S. 200, 206; UNITED STATES V.
BEHAN, 110 U.S. 338, 344; UNITED STATES V. SPEED, 8 WALL.  77, 84;
MASTERTON V. THE MAYOR OF BROOKLYN, 7 HILL (N.Y.)  61, 71; RESTATEMENT,
CONTRACTS SEC. 331(1932). 

MR. JUSTICE REED AND MR. JUSTICE JACKSON CONCUR IN THE REVERSAL AND
DISSENT FROM THE ORDER TO ENTER JUDGMENT IN FAVOR OF THE UNITED
STATES.  IN THEIR OPINION, RESPONDENT SHOULD HAVE AN OPPORTUNITY TO
MEET THE STATED REQUIREMENTS OF PROOF. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE MURPHY,
AND MR. JUSTICE RUTLEDGE AGREE, CONCURRING. 

IT IS CLEAR AND UNDISPUTED THAT THE CONTRACT WHICH THE PARTIES MADE
WAS TO BE REDUCED TO FORMAL TERMS.  BOTH THE "LETTER OF INTENT"  FN1
AND THE "OFFICIAL AWARD"  FN2  BY THEIR EXPRESS TERMS STATE THAT A
"FORMAL CONTRACT" WAS CONTEMPLATED.  THAT CIRCUMSTANCE RAISES
DIFFICULTIES FOR RESPONDENT WHICH NEITHER IT NOR THE COURT OF CLAIMS
NOR THIS COURT HAS SURMOUNTED. 

DURING THE PERIOD OF TIME RELEVANT HERE, THE NAVY (APART FROM
EXCEPTIONS INAPPLICABLE TO THE TYPE OF CONTRACT INVOLVED IN THIS CASE)
HAD "STANDARD TERMINATION CLAUSES FOR FIXED PRICE CONTRACTS" WHICH "IN
GENERAL FORM AND SUBSTANCE" WERE INSERTED "IN MOST CONTRACTS."  FN3
THEY PROVIDED THAT IN THE EVENT OF CANCELLATION "FOR THE CONVENIENCE OF
THE GOVERNMENT" THE CONTRACTOR WOULD BE PAID "FOR ALL COSTS, INCLUDING
A PROPER ALLOCATION OF OVERHEAD EXPENSES TO THE CONTRACT, INCURRED UP
TO THE TIME OF TERMINATION, PLUS AN ALLOWANCE OF 6% OR 7% PROFIT ON ALL
SUCH COSTS EXCEPT PURCHASES OF MATERIALS AND UNFINISHED GOODS, FOR
WHICH THE CONTRACTOR WAS REIMBURSED AT COST."  FN4 

THAT POLICY OF THE NAVY, REVEALED AS IT WAS IN OFFICIAL
COMMUNICATIONS TO CONGRESS, IS A MATTER OF WHICH WE CAN TAKE JUDICIAL
NOTICE.  WE HAVE HERETOFORE AMPLIFIED FINDINGS OF FACTS BY REPORTS OF
THE SECRETARY OF WAR.  TEMPEL V. UNITED STATES, 248 U.S. 121, 130.  THE
OFFICIAL COMMUNICATIONS WHICH DISCLOSE THE POLICY OF THE NAVY IN THIS
CASE, LIKE REPORTS, RULES AND REGULATIONS OF AGENCIES  FN5  OR OTHER
COMMUNICATIONS TO CONGRESS,  FN6  ARE EQUALLY RELIABLE AND
AUTHORITATIVE AND NEED NO FURTHER PROOF. 

RESPONDENT, HOWEVER, HAS NOT CARRIED THE BURDEN OF SHOWING THAT IT
WOULD HAVE BEEN SAVED FROM THE APPLICATION OF THAT POLICY.  IT HAS NOT
SHOWN THAT ITS CONTRACT FALLS IN AN EXEMPT CLASS.  IT HAS NOT SHOWN
THAT WHAT WAS USUAL OR CUSTOMARY FOR OTHER CONTRACTS OF THIS TYPE WOULD
NOT BE WRITTEN INTO THE FORMALIZED AGREEMENT TO WHICH ITS CONTRACT WITH
THE GOVERNMENT WAS TO BE REDUCED.  IT HAS NOT SHOWN HOW IT COULD ESCAPE
APPLICATION OF THE NAVY'S GENERAL POLICY AND BE GRANTED THE FAVOR OF A
CONTRACT WITHOUT A TERMINATION CLAUSE. 

YET UNLESS IT CAN MAKE THAT SHOWING, IT HAS NOT ESTABLISHED BY "CLEAR
AND DIRECT PROOF," AS UNITED STATES V. BEHAN, 110 U.S. 338, 344,
REQUIRES, THAT IT WOULD HAVE BEEN FREE TO MAKE THE PROFITS WHICH IT
CLAIMS AS DAMAGES FOR BREACH OF THE CONTRACT.  FOR THE CUSTOMARY
TERMINATION CLAUSE RELIEVED THE PROMISOR OF ANY LIABILITY FOR UNEARNED
PROFITS OF THE CHARACTER CLAIMED HERE.  SINCE RESPONDENT DID NOT SHOW
THAT AT LEAST IN ALL PROBABILITY ITS CONTRACT WOULD HAVE BEEN FREE OF
THAT PROVISION, IT FAILED AT THE THRESHOLD OF THE CASE TO CARRY THE
BURDEN WHICH RESTED ON IT. 

FN1  THE "LETTER OF INTENT" INDICATED THE MANNER IN WHICH RESPONDENT
COULD APPROVE THE PROPOSAL, "THEREBY CONSTITUTING THIS LETTER A
CONTRACT UNTIL THE EXECUTION OF A FORMAL CONTRACT  ...  " 

FN2  THE "OFFICIAL AWARD" STATED THAT THE NAVY'S ACCEPTANCE OF
RESPONDENT'S PROPOSAL WAS AUTHORITY TO COMMENCE PERFORMANCE "WITHOUT
WAITING FOR THE FORMAL CONTRACT." 

FN3  MEMORANDUM FROM JAMES FORRESTAL, UNDER SECRETARY OF THE NAVY,
JAN. 11, 1944, SENATE HEARINGS ON S. 1268, S. 1280, AND S.J. RES. 80,
78TH CONG., 1ST SESS., 551, 553, WHERE IT IS SAID: 

"STANDARD TERMINATION CLAUSES FOR FIXED PRICE CONTRACTS WERE
DEVELOPED LATE IN 1941, AND IN GENERAL FORM AND SUBSTANCE HAVE BEEN
INSERTED IN MOST CONTRACTS ENTERED INTO SINCE THAT TIME EXCEPT FOR SHIP
CONSTRUCTION CONTRACTS, WHICH CONSTITUTE A SEPARATE PROBLEM.  THE
DEPARTMENT HAS NOT UNDERTAKEN TO MODIFY OUTSTANDING CONTRACTS BY THE
INSERTION OF SUCH CLAUSES.  IT IS DIFFICULT TO ESTIMATE THE TIME WHICH
WOULD BE REQUIRED TO INCORPORATE SUCH A CLAUSE BY AMENDMENT IN ALL
CONTRACTS.  HOWEVER, IT IS DOUBTED THAT SUCH ACTION WOULD BE
ADMINISTRATIVELY FEASIBLE EXCEPT UPON THE INITIATIVE OF THE
CONTRACTOR." 

AND SEE LETTER OF THE ACTING SECRETARY, OCT. 10, 1943, ID., 270-271. 

FN4  SEE RECORD P. 177 IN POWNALL V. UNITED STATES, 334 U.S. 742, AND
RECORD P. 227 IN ALEXANDER WOOL COMBING CO. V. UNITED STATES, 334 U.S.
742.  AND SEE H.R. HEARINGS ON H.R. 3022, 78TH CONG., 1ST SESS. 27.  AT
THE TIME, TITLE II OF THE FIRST WAR POWERS ACT, SEC. 201, 55 STAT. 839,
50 U.S.C. APP. SEC. 611, WAS IN EFFECT EMPOWERING THE PRESIDENT TO
AUTHORIZE ANY DEPARTMENT OR AGENCY EXERCISING FUNCTIONS IN CONNECTION
WITH THE PROSECUTION OF THE WAR EFFORT UNDER REGULATIONS PRESCRIBED BY
HIM "TO ENTER INTO CONTRACTS AND INTO AMENDMENTS OR MODIFICATIONS OF
CONTRACTS HERETOFORE OR HEREAFTER MADE  ...  WITHOUT REGARD TO THE
PROVISIONS OF LAW RELATING TO THE MAKING, PERFORMANCE, AMENDMENT, OR
MODIFICATION OF CONTRACTS WHENEVER HE DEEMS SUCH ACTION WOULD
FACILITATE THE PROSECUTION OF THE WAR  ...  "  BY EXECUTIVE ORDER 9001,
DATED DEC. 27, 1941, 6 FED. REG. 6787, 3 C.F.R. CUM. SUPP. 1054, THE
PRESIDENT DELEGATED THIS AUTHORITY TO VARIOUS AGENCIES, INCLUDING THE
NAVY DEPARTMENT.  HE ALSO AUTHORIZED THE NAVY "BY AGREEMENT" TO MODIFY
OR AMEND OR SETTLE "CLAIMS" UNDER CONTRACTS AND PROVIDED THAT THE
AMENDMENTS AND MODIFICATIONS "MAY BE WITH OR WITHOUT CONSIDERATION AND
MAY BE UTILIZED TO ACCOMPLISH THE SAME THINGS AS ANY ORIGINAL CONTRACT
COULD HAVE ACCOMPLISHED HEREUNDER, IRRESPECTIVE OF THE TIME OR
CIRCUMSTANCES OF THE MAKING OF OR THE FORM OF THE CONTRACT AMENDED OR
MODIFIED, OR OF THE AMENDING OR MODIFYING CONTRACT, AND IRRESPECTIVE OF
RIGHTS WHICH MAY HAVE ACCRUED UNDER THE CONTRACT, OR THE AMENDMENTS OR
MODIFICATIONS THEREOF." 

FN5  SEE LILLY V. GRAND TRUNK R. CO., 317 U.S. 481, 488; LABOR BOARD
V. ATKINS & CO., 331 U.S. 398, 406-407. 

FN6  SEE LUDECKE V. WATKINS, 335 U.S. 160, 166-170. 
..END :




LABOR BOARD V. CROMPTON MILLS, 337 U.S. 217 


NO. 197.  ARGUED JANUARY 31, 1949.  - DECIDED MAY 31, 1949.  - 167 F.2D
662, REVERSED. 


1.  AN EMPLOYER PRODUCING GOODS FOR INTERSTATE COMMERCE ENGAGED IN
EXTENSIVE NEGOTIATIONS AS TO MANY MATTERS, INCLUDING RATES OF PAY, WITH
A UNION DULY CERTIFIED AS THE COLLECTIVE BARGAINING REPRESENTATIVE OF
MOST OF ITS PRODUCTION AND MAINTENANCE EMPLOYEES AT A CERTAIN PLANT. 
IT OFFERED A SMALL WAGE INCREASE, WHICH WAS REJECTED, AND THE
NEGOTIATIONS REACHED SOMETHING OF AN IMPASSE.  TWELVE DAYS LATER, THE
EMPLOYER, WITHOUT CONSULTING THE UNION, PUT INTO EFFECT A SUBSTANTIALLY
GREATER GENERAL WAGE INCREASE APPLICABLE TO MOST OF THE EMPLOYEES
REPRESENTED IN THE NEGOTIATIONS.  HELD:  IN THESE CIRCUMSTANCES, THIS
ACTION CONSTITUTED AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SECS.
8 AND 9 OF THE NATIONAL LABOR RELATIONS ACT.  PP. 218-219, 223-225. 

2.  AFTER HEARINGS, THE NATIONAL LABOR RELATIONS BOARD MADE CERTAIN
FINDINGS OF FACT AND ORDERED THE EMPLOYER NOT ONLY TO CEASE AND DESIST
FROM GRANTING GENERAL WAGE INCREASES WITHOUT CONSULTING THE UNION BUT
ALSO TO BARGAIN COLLECTIVELY, UPON REQUEST, AS TO RATES OF PAY, HOURS
OF WORK, AND OTHER CONDITIONS OF EMPLOYMENT, TO POST CERTAIN NOTICES
AND TO REPORT STEPS TAKEN TO COMPLY WITH THE ORDER.  ITS PETITION FOR
ENFORCEMENT WAS DENIED BY THE COURT OF APPEALS.  HELD: 

(A)  A DECREE SHOULD BE ENTERED ENFORCING SO MUCH OF THE BOARD'S
ORDER AS IS SUPPORTED BY ITS FINDINGS OF FACT BASED UPON SUBSTANTIAL
EVIDENCE.  PP. 218-219, 220-221. 

(B)  ON THE RECORD IN THIS CASE, THE BOARD WAS JUSTIFIED IN ISSUING
AN ORDER REQUIRING THE EMPLOYER TO CEASE AND DESIST FROM REFUSING TO
BARGAIN COLLECTIVELY BY TAKING ACTION, WITHOUT PRIOR CONSULTATION WITH
THE AUTHORIZED COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES,
WITH RESPECT TO GENERAL RATES OF PAY WHICH ARE SUBSTANTIALLY DIFFERENT
FROM, OR GREATER THAN, ANY WHICH THE EMPLOYER HAS PROPOSED DURING ITS
NEGOTIATIONS WITH SUCH REPRESENTATIVE.  P. 225. 

(C)  THERE WERE NO FINDINGS BY THE BOARD THAT ESTABLISHED ANY OTHER
LACK OF GOOD FAITH OR LACK OF CONSISTENCY WITH THE PRINCIPLE OF
COLLECTIVE BARGAINING ON THE PART OF THE EMPLOYER; AND THERE IS NO
REASON FOR ENLARGING THE SCOPE OF THE ENFORCEMENT DECREE BEYOND THAT
FEATURE, AND LITTLE, IF ANY, NEED FOR ORDERS REQUIRING EITHER SPECIFIC
AFFIRMATIVE ACTION TO BE TAKEN BY THE EMPLOYER OR THE POSTING OF ANY
NOTICES BY IT.  PP. 226-227. 

NATIONAL LABOR RELATIONS BOARD V. CROMPTON-HIGHLAND MILLS, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE NATIONAL LABOR RELATIONS BOARD ISSUED AN ORDER REQUIRING AN
EMPLOYER TO CEASE AND DESIST FROM CERTAIN UNFAIR LABOR PRACTICES AND TO
TAKE CERTAIN AFFIRMATIVE ACTIONS.  70 N.L.R.B. 206.  THE COURT OF
APPEALS DENIED A PETITION FOR ENFORCEMENT.  167 F.2D 662.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 812.  REVERSED, P. 227. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE A COLLECTIVE BARGAINING REPRESENTATIVE WAS CERTIFIED,
UNDER THE NATIONAL LABOR RELATIONS ACT,  FN1  TO REPRESENT ALL
EMPLOYEES WORKING IN A CERTAIN APPROPRIATE BARGAINING UNIT.  THEIR
EMPLOYER ENGAGED IN EXTENDED NEGOTIATIONS WITH THIS REPRESENTATIVE AS
TO MANY MATTERS, INCLUDING RATES OF PAY.  DECEMBER 19, 1945, THE
NEGOTIATIONS REACHED SOMETHING OF AN IMPASSE.  THE QUESTION HERE
PRESENTED IS WHETHER THIS EMPLOYER ENGAGED IN AN UNFAIR LABOR PRACTICE
WHEN, ON JANUARY 1, 1946, IT PUT INTO EFFECT AS OF DECEMBER 31, 1945,
WITHOUT PRIOR CONSULTATION WITH THE BARGAINING REPRESENTATIVE, A
GENERAL INCREASE IN THE RATES OF PAY APPLICABLE TO MOST OF THE
EMPLOYEES WHO HAD BEEN REPRESENTED IN THE NEGOTIATIONS.  THIS INCREASE
WAS A SUBSTANTIALLY GREATER ONE THAN ANY WHICH THE EMPLOYER HAD OFFERED
DURING THE NEGOTIATIONS.  FOR THE REASONS TO BE STATED, WE HOLD THAT,
UNDER THE CIRCUMSTANCES, THIS ACTION CONSTITUTED AN UNFAIR LABOR
PRACTICE AND THAT A DECREE SHOULD BE ENTERED ENFORCING AN ORDER
PROHIBITING SUCH CONDUCT.  THE CASE ALSO RAISES QUESTIONS AS TO THE
NATURE OF THE IMPASSE WHICH WAS REACHED AND AS TO THE PROPER SCOPE AND
TERMS OF THE ENFORCEMENT DECREE. 

AUGUST 13, 1945, THE TEXTILE WORKERS UNION OF AMERICA, CONGRESS OF
INDUSTRIAL ORGANIZATIONS, FOLLOWING AN ELECTION UNDER THE STATUTE, WAS
CERTIFIED AS THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE FOR
ABOUT 800 EMPLOYEES OF CROMPTON-HIGHLAND MILLS, RESPONDENT HEREIN. 
THESE EMPLOYEES INCLUDED MOST OF ITS PRODUCTION AND MAINTENANCE
EMPLOYEES AT GRIFFIN, GEORGIA, WHERE IT MANUFACTURED COTTON AND OTHER
GOODS.  MUCH OF THE MATERIAL ENTERING INTO THOSE GOODS AND MOST OF THE
FINISHED GOODS THERE PRODUCED WERE BOUGHT, SOLD OR TRANSPORTED IN
INTERSTATE COMMERCE, SO THAT THE UNFAIR LABOR PRACTICE, IF ANY,
CONCEDEDLY AFFECTED SUCH COMMERCE.  FROM AUGUST 31, 1945, AT LEAST
UNTIL DECEMBER 19, A COMMITTEE OF THIS UNION ENGAGED IN COLLECTIVE
BARGAINING WITH THE RESPONDENT ON NUMEROUS APPROPRIATE SUBJECTS,
INCLUDING RATES OF PAY.  MANY TENTATIVE AGREEMENT WERE REACHED. 

JANUARY 1, 1946, WITHOUT PRIOR CONSULTATION WITH ANY MEMBER OF THE
BARGAINING COMMITTEE, THE EMPLOYER ANNOUNCED A GENERAL AND SUBSTANTIAL
INCREASE IN THE RATES OF PAY OF ITS EMPLOYEES, AMOUNTING TO ABOUT TWO
TO SIX CENTS AN HOUR, EFFECTIVE AS OF DECEMBER 31, 1945.  THIS INCREASE
APPLIED TO MOST, BUT NOT ALL, OF THE EMPLOYEES IN THE BARGAINING UNIT. 
SIMULTANEOUSLY WITH ITS POSTING OF THE ANNOUNCEMENT OF THIS INCREASE,
THE EMPLOYER TOLD THE EMPLOYEE MEMBERS OF THE BARGAINING COMMITTEE
ABOUT IT.  AT THE SAME TIME, THE EMPLOYER MAILED AN ANNOUNCEMENT OF IT
TO ONE OF THE TWO NONEMPLOYEE MEMBERS OF THE BARGAINING COMMITTEE. 

JANUARY 31, 1946, THE NATIONAL LABOR RELATIONS BOARD, PETITIONER
HEREIN, IN RESPONSE TO CHARGES MADE BY THE UNION, FILED A COMPLAINT
AGAINST THE EMPLOYER, ALLEGING SEVERAL UNFAIR LABOR PRACTICES.  FN2
THESE INCLUDED THE ABOVEDESCRIBED INCREASE IN RATES OF PAY.  AFTER
HEARINGS BEFORE A TRIAL EXAMINER AND CONSIDERATION OF THAT EXAMINER'S
INTERMEDIATE REPORT, THE EMPLOYER'S EXCEPTIONS AND BRIEF RELATING TO
THAT REPORT AND THE ENTIRE RECORD AND ORAL ARGUMENTS, THE BOARD, ON
AUGUST 21, 1946, ISSUED A CEASE AND DESIST ORDER.  70 N.L.R.B. 206. 
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT DENIED A PETITION FOR
ENFORCEMENT.  167 F.2D 662.  BECAUSE OF THE IMPORTANCE OF THE ISSUE IN
THE ADMINISTRATION OF THE LABOR RELATIONS STATUTES, WE GRANTED
CERTIORARI.  335 U.S. 812. 

THE PRECISE ISSUE PRESENTED IS WHAT DECREE, IF ANY, SHOULD BE ISSUED
BY THE COURT OF APPEALS FOR THE ENFORCEMENT OF THE ORDER OF THE
NATIONAL LABOR RELATIONS BOARD.  FN3  IF A DECREE IS TO BE ISSUED, ITS
SCOPE AND TERMS SHOULD BE BASED UPON SUCH PART, OR ALL, OF THE BOARD'S
CEASE AND DESIST ORDER AS IS SUPPORTED BY ITS FINDINGS OF FACT.  THOSE
FINDINGS ARE BINDING UPON US TO THE EXTENT THAT THEY ARE SUSTAINED BY
SUBSTANTIAL EVIDENCE.  FN4  WE ARE SATISFIED THAT THERE IS SUBSTANTIAL
EVIDENCE TO SUPPORT THE MATERIAL FINDINGS OF FACT MADE BY THE BOARD AS
TO THE ISSUE BEFORE US AND, THEREFORE, SEE NO NEED TO SET FORTH THAT
EVIDENCE HERE.  THE PRIMARY ISSUE FOR DISCUSSION IS, RATHER, THE EXTENT
TO WHICH THE BOARD'S FINDINGS OF FACT SUPPORT ITS CEASE AND DESIST
ORDER AND JUSTIFY A DECREE FOR THE ENFORCEMENT OF THAT ORDER. 

THE CONTROLLING SPECIFIC FINDINGS OF THE BOARD ARE AS FOLLOWS: 

"AS FULLY DISCUSSED IN THE INTERMEDIATE REPORT, THE RESPONDENT,
DURING THE COURSE OF NEGOTIATIONS WITH THE UNION, REFUSED TO ACCEDE TO
THE UNION'S WAGE DEMANDS AND IT WAS NOT UNTIL THEIR LAST CONFERENCE ON
DECEMBER 19, 1945, THAT THE RESPONDENT MADE ITS FIRST AND ONLY
COUNTERPROPOSAL OF APPROXIMATELY 1 TO 1 1/2 CENTS AN HOUR RAISE, WHICH
THE UNION REJECTED.  THEREAFTER, THE RESPONDENT MADE NO FURTHER EFFORT
TO SETTLE THE WAGE DISPUTE BUT, INSTEAD, ON JANUARY 1, 1946, ONLY 12
DAYS LATER, GRANTED ITS EMPLOYEES A SUBSTANTIALLY LARGER INCREASE THAN
THAT PREVIOUSLY OFFERED TO THE UNION, WITHOUT CONSULTING THE UNION OR
AFFORDING IT AN OPPORTUNITY TO NEGOTIATE WITH RESPECT THERETO.  IN OUR
OPINION, SUCH ACTION TAKEN AS (SO) SOON AFTER THE UNION WAS ATTEMPTING
THROUGH THE BARGAINING PROCESS TO REACH AN AGREEMENT WITH THE
RESPONDENT, AMONG OTHER THINGS, ON WAGES, CLEARLY SHOWS THAT THE
RESPONDENT WAS NOT ACTING IN GOOD FAITH DURING THE NEGOTIATIONS, AND IS
MANIFESTLY INCONSISTENT WITH THE PRINCIPLE OF COLLECTIVE BARGAINING. 
NOR ARE WE IMPRESSED WITH THE RESPONDENT'S ATTEMPTED JUSTIFICATION FOR
ITS ACTION ON THE GROUND THAT THE UNION BROKE OFF NEGOTIATIONS ON
DECEMBER 19 AND THAT THE RESPONDENT WAS THEREFORE RELIEVED OF THE
OBLIGATION TO DEAL WITH IT.  CONCEDEDLY, THE RESPONDENT NEVER PROPOSED
TO THE UNION AS A POSSIBLE BASIS OF AGREEMENT A WAGE INCREASE
COMPARABLE TO THAT GRANTED ON JANUARY 1, 1946.  MOREOVER, THE RECORD
FAILS TO SUPPORT THE RESPONDENT'S CONTENTION THAT THE UNION'S
REPRESENTATIVES ASSUMED AN UNEQUIVOCAL POSITION AT THE LAST MEETING
WHICH FORECLOSED FURTHER BARGAINING CONCERNING WAGES OR OTHER TERMS OR
CONDITIONS OF EMPLOYMENT.  UNDER THESE CIRCUMSTANCES, WE FIND, AS DID
THE TRIAL EXAMINER, THAT THE RESPONDENT, BY ITS ACTION WITH RESPECT TO
THE WAGE INCREASE, FAILED TO PERFORM ITS STATUTORY DUTY TO BARGAIN
COLLECTIVELY WITH THE UNION AND THEREBY INTERFERED WITH, RESTRAINED,
AND COERCED ITS EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN
THE ACT."  70 N.L.R.B. AT PP. 206-207.  FN5 

I. THE EMPLOYER ENGAGED IN AN UNFAIR LABOR PRACTICE WHEN, WITHOUT
CONSULTING THE EMPLOYEES' COLLECTIVE BARGAINING REPRESENTATIVE, IT PUT
INTO EFFECT, FOR MOST OF ITS EMPLOYEES WHO HAD BEEN REPRESENTED IN THE
BARGAINING NEGOTIATIONS, A GENERAL INCREASE IN RATES OF PAY WHICH WAS
SUBSTANTIALLY GREATER THAN ANY THAT THE EMPLOYER HAD OFFERED. 

THE SPECIFIC FINDINGS OF THE BOARD, COUPLED WITH THE FINDINGS ADOPTED
BY IT FROM THE TRIAL EXAMINER'S REPORT, LEAVE NO ROOM FOR DOUBT AS TO
THE ADEQUACY OF THE FACTS UPON WHICH ITS CEASE AND DESIST ORDER WAS
BASED.  FOR SIGNIFICANT FINDINGS ADOPTED FROM THE EXAMINER'S REPORT,
SEE APPENDIX B, INFRA, PP. 230-234.  THE FACTS SO FOUND DISTINGUISH
THIS CASE FROM ANY IN WHICH NO COLLECTIVE BARGAINING REPRESENTATIVE HAS
BEEN CERTIFIED OR OTHERWISE AUTHORIZED TO REPRESENT THE EMPLOYEES IN AN
APPROPRIATE UNIT.  FN6  IN THE INSTANT CASE, THE WISH OF THE EMPLOYEES
TO BE CONSULTED AND TO BARGAIN COLLECTIVELY AS TO THE TERMS OF ANY
GENERAL WAGE INCREASE IS ESTABLISHED BY THE FINDINGS AND THE
NEGOTIATIONS.  CF. LABOR BOARD V. COLUMBIAN ENAMELING & STAMPING CO.,
306 U.S. 292, 297.  WE DO NOT HAVE HERE A CASE WHERE THE BARGAINING HAD
COME TO A COMPLETE TERMINATION CUTTING OFF THE OUTSTANDING INVITATION
OF THE CERTIFIED COLLECTIVE BARGAINING REPRESENTATIVE TO BARGAIN AS TO
ANY NEW ISSUE ON SUCH A MATTER AS RATES OF PAY.  CF. LABOR BOARD V.
SANDS MFG. CO., 306 U.S. 332.  THE OPENING WHICH A RAISE IN PAY MAKES
FOR THE CORRECTION OF EXISTING INEQUITIES AMONG EMPLOYEES AND FOR THE
POSSIBLE SUBSTITUTION OF SHORTER HOURS, VACATIONS OR SICK LEAVES, IN
LIEU OF SOME PART OF THE PROPOSED INCREASE IN PAY, SUGGESTS THE
INFINITE OPPORTUNITIES FOR BARGAINING THAT ARE INHERENT IN AN ANNOUNCED
READINESS OF AN EMPLOYER TO INCREASE GENERALLY THE PAY OF ITS
EMPLOYEES.  THE OCCASION IS SO APPROPRIATE FOR COLLECTIVE BARGAINING
THAT IT IS DIFFICULT TO INFER AN INTENT TO CUT OFF THE OPPORTUNITY FOR
BARGAINING AND YET BE CONSISTENT WITH THE PURPOSES OF THE NATIONAL
LABOR RELATIONS ACT. 

WE DO NOT HERE HAVE A UNILATERAL GRANT OF AN INCREASE IN PAY MADE BY
AN EMPLOYER AFTER THE SAME PROPOSAL HAS BEEN MADE BY THE EMPLOYER IN
THE COURSE OF COLLECTIVE BARGAINING BUT HAS BEEN LEFT UNACCEPTED OR
EVEN REJECTED IN THOSE NEGOTIATIONS.  SUCH A GRANT MIGHT WELL CARRY NO
DISPARAGEMENT OF THE COLLECTIVE BARGAINING PROCEEDINGS.  INSTEAD OF
BEING REGARDED AS AN UNFAIR LABOR PRACTICE, IT MIGHT BE WELCOMED BY THE
BARGAINING REPRESENTATIVE, WITHOUT PREJUDICE TO THE REST OF THE
NEGOTIATIONS.  SEE IN THE MATTER OF W.W. CROSS & CO., 77 N.L.R.B. 1162;
IN THE MATTER OF EXPOSITION COTTON MILLS CO., 76 N.L.R.B. 1289; IN THE
MATTER OF SOUTHERN PRISON CO., 46 N.L.R.B. 1268. 

WE HOLD THAT THE BOARD'S ORDER TO CEASE AND DESIST IS JUSTIFIED,
UNDER THE CIRCUMSTANCES OF THIS CASE, TO THE EXTENT THAT THE ORDER
REQUIRES THE EMPLOYER TO CEASE AND DESIST FROM REFUSING TO BARGAIN
COLLECTIVELY BY TAKING ACTION, WITHOUT PRIOR CONSULTATION WITH THE
AUTHORIZED COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES, WITH
RESPECT TO GENERAL RATES OF PAY WHICH ARE SUBSTANTIALLY DIFFERENT FROM,
OR GREATER THAN, ANY WHICH THE EMPLOYER HAS PROPOSED DURING ITS
NEGOTIATIONS WITH SUCH REPRESENTATIVE.  THE NEED FOR THIS ORDER DEPENDS
IN PART UPON THE BOARD'S FINDING THAT THE ACTION BY THE EMPLOYER, ON
JANUARY 1, 1946, TAKEN SO SOON AFTER THE MEETING OF DECEMBER 19, 1945,
SHOWED THAT "THE RESPONDENT  WAS NOT ACTING IN GOOD FAITH DURING THE
NEGOTIATIONS, AND IS MANIFESTLY INCONSISTENT WITH THE PRINCIPLE OF
COLLECTIVE BARGAINING."  70 N.L.R.B. AT P. 207.  SEE MAY DEPT. STORES
CO. V. LABOR BOARD, 326 U.S. 376; MEDO PHOTO SUPPLY CORP. V. LABOR
BOARD, 321 U.S. 678; LABOR BOARD V. NEWARK MORNING LEDGER CO., 120 F.2D
262; JEFFERY-DEWITT INSULATOR CO. V. LABOR BOARD, 91 F.2D 134.  FN7 

II.  THE DECREE OF ENFORCEMENT SHOULD NOT EXTEND FURTHER THAN
NECESSARY TO PREVENT THE TAKING OF THE PROHIBITED ACTION BY THE
EMPLOYER. 

THERE ARE NO FINDINGS BY THE BOARD THAT ESTABLISH A LACK OF GOOD
FAITH OR LACK OF CONSISTENCY WITH THE PRINCIPLE OF COLLECTIVE
BARGAINING ON THE PART OF THE EMPLOYER OTHER THAN IN THE CONNECTION
ABOVE DISCUSSED.  THE BOARD DECLINED TO UPHOLD THE TRIAL EXAMINER IN
HIS FINDINGS AND RECOMMENDATIONS AS TO SEVERAL ALLEGED UNFAIR LABOR
PRACTICES OTHER THAN THIS ONE.  THE BOARD'S OWN FINDING AS TO THE
EMPLOYER'S INTERFERENCE WITH, AND RESTRAINT AND COERCION OF, ITS
EMPLOYEES IS EXPRESSLY LIMITED TO THIS ONE ITEM.  IT READS: 

"UNDER THESE CIRCUMSTANCES, WE FIND, AS DID THE TRIAL EXAMINER, THAT
THE RESPONDENT, BY ITS ACTION WITH RESPECT TO THE WAGE INCREASE, FAILED
TO PERFORM ITS STATUTORY DUTY TO BARGAIN COLLECTIVELY WITH THE UNION
AND THEREBY INTERFERED WITH, RESTRAINED, AND COERCED ITS EMPLOYEES IN
THE EXERCISE OF THE RIGHTS GUARANTEED IN THE ACT."  ID. AT P. 207. 

ACCORDINGLY, THERE APPEARS NO REASON FOR ENLARGING THE SCOPE OF THE
ENFORCEMENT DECREE BEYOND THAT FEATURE, AND LITTLE, IF ANY, NEED FOR
ORDERS REQUIRING EITHER SPECIFIC AFFIRMATIVE ACTION TO BE TAKEN BY THE
EMPLOYER OR THE POSTING OF ANY NOTICES BY IT.  FN8 

FOR THESE REASONS, THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED
TO THE COURT OF APPEALS FOR ACTION CONSISTENT WITH THIS OPINION.  IT IS
SO ORDERED. 

FN1  SEC. 9 OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 453, 29
U.S.C. (1940 ED.)  SEC.  159; IN THE MATTER OF CROMPTON-HIGHLAND MILLS,
62 N.L.R.B. 1346. 

FN2  UNDER SECS. 7, 8(1) AND (5), AND 10 OF THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 452-455, 29 U.S.C. (1940 ED.)  SECS.  157,
158(1) AND (5), AND 160. 

FN3  FOR THE BOARD'S ORDER, SEE APPENDIX A, INFRA, PP. 227-229. 

FN4  "THE FINDINGS OF THE BOARD AS TO THE FACTS, IF SUPPORTED BY
EVIDENCE, SHALL BE CONCLUSIVE."  SEC. 10(E) OF THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 454, 29 U.S.C. (1940 ED.)  SEC.  160(E). "THE
FINDINGS OF THE BOARD WITH RESPECT TO QUESTIONS OF FACT IF SUPPORTED BY
SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE SHALL BE
CONCLUSIVE."  SEC. 10(E), AS AMENDED BY THE LABOR MANAGEMENT RELATIONS
ACT, 1947, 61 STAT. 148, 29 U.S.C. (1946 ED., SUPP. I) SEC. 160(E). 

"WE HAVE REPEATEDLY HELD THAT CONGRESS, BY PROVIDING, SEC. 10(C), (E)
AND (F), OF THE NATIONAL LABOR RELATIONS ACT, THAT THE BOARD'S FINDINGS
'AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE,'
PRECLUDES THE COURTS FROM WEIGHING EVIDENCE IN REVIEWING THE BOARD'S
ORDERS, AND IF THE FINDINGS OF THE BOARD ARE SUPPORTED BY EVIDENCE THE
COURTS ARE NOT FREE TO SET THEM ASIDE, EVEN THOUGH THE BOARD COULD HAVE
DRAWN DIFFERENT INFERENCES."  LABOR BOARD V. NEVADA CONSOLIDATED COPPER
CORP., 316 U.S. 105, 106-107.    SEE ALSO, MEDO PHOTO SUPPLY CORP. V.
LABOR BOARD, 321 U.S. 678, 681, N. 1; CONSOLIDATED EDISON CO. V. LABOR
BOARD, 305 U.S. 197, 229; WASHINGTON, V. & M. COACH CO. V. LABOR BOARD,
301 U.S. 142, 146-147.    FN5  IN ADDITION TO ITS OWN FINDINGS, QUOTED
IN THE TEXT, THE BOARD ADOPTED, IN GENERAL TERMS, ALL OF THE FINDINGS
OF THE TRIAL EXAMINER, WITH CERTAIN MODIFICATIONS AND EXCEPTIONS NOT
HERE MATERIAL.  A NUMBER OF SUCH ADOPTED FINDINGS, WHICH ARE OF
SIGNIFICANCE IN SECURING A FULL APPRECIATION OF THE BASIS FOR THE
BOARD'S ORDER, ARE SET FORTH IN APPENDIX B, INFRA, PP. 230-234. 

THE INCREASE IN PAY WAS EXPLAINED BY HERBERT A. PICKFORD, MANAGER OF
THE RESPONDENT, AS FOLLOWS IN HIS TESTIMONY BEFORE THE TRIAL EXAMINER: 

"Q.  MR. PICKFORD, EXPLAIN WHY YOU MADE THE WAGE INCREASE ON JANUARY
1, 1946.  - A. WE HAD HEARD THE END OF THE PREVIOUS WEEK THAT NUMEROUS
MILLS THROUGHOUT THE STATE HAD MADE WAGE ADJUSTMENTS, AND WE HEARD
THROUGH RUMOR, MORE OR LESS THROUGH THE GRAPE VINE, THAT LOCAL MILLS
WERE PLANNING TO MAKE WAGE ADJUSTMENTS.  I CHECKED INTO THAT RUMOR WITH
VARIOUS MILLS AND FOUND THAT WAGE ADJUSTMENTS WERE GOING TO BE MADE,
ALTHOUGH I DIDN'T GET ANY SPECIFIC DATES AS TO WHEN THEY WOULD BE
MADE. 

"WE HAD STEADFASTLY SAID THROUGHOUT OUR BARGAINING CONFERENCES THAT
IF AND WHEN WAGE INCREASES IN OUR AREA WERE MADE, WE WOULD BE AMONGST
THE FIRST, AS WE HAD ALWAYS BEEN, TO MAKE SUCH INCREASES.  AND WHEN WE
HEARD THAT WAGE INCREASES WERE TO TAKE PLACE, WE WANTED TO MAINTAIN OUR
POSITION AS BEING AMONGST THE FIRST TO MAKE THE INCREASE AND ALSO
MAINTAIN OUR POSITION IN THE LOCAL LABOR MARKET BY MAKING AN INCREASE
OURSELVES. 

"Q.  DO YOU KNOW, MR. PICKFORD, WHAT WAGE INCREASES WERE MADE BY ANY
OF THE OTHER MILLS IN GRIFFIN?  - A. I DO NOT KNOW THE DEFINITE FIGURES
ASIDE FROM WHAT I SAW IN THE PAPER. 

"Q.  DID YOU JOIN WITH ANY MILLS IN MAKING ANY ANNOUNCEMENT ABOUT A
WAGE INCREASE?  - A. NO; WE DID NOT.  WE MADE OUR ANNOUNCEMENT
INDEPENDENTLY OF ANYONE ELSE, AS WE HAVE ALWAYS DONE." 

FN6  "SEC.  8.  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER
 

     .         .         . .         . 

"(5)  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A)."  49 STAT.
452-453, AND ALSO IN 61 STAT. 140-141, 29 U.S.C. (1946 ED., SUPP. I)
SEC. 158. 

"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:  ..."  49 STAT. 453, AND
ALSO IN 61 STAT. 143, 29 U.S.C. (1946 ED., SUPP. I) SEC. 159(A). 

FN7  EVEN THOUGH THE EMPLOYER, SINCE JANUARY 1, 1946, MAY HAVE
CARRIED ON COLLECTIVE BARGAINING IN GOOD FAITH AS TO RATES OF PAY AND
OTHER MATTERS, A DECREE ENFORCING THE ORIGINAL ORDER AGAINST MAKING A
GENERAL INCREASE WITHOUT CONSULTING THE COLLECTIVE BARGAINING
REPRESENTATIVES IS JUSTIFIABLE.  "...  AN ORDER OF THE CHARACTER MADE
BY THE BOARD, LAWFUL WHEN MADE, DOES NOT BECOME MOOT BECAUSE IT IS
OBEYED OR BECAUSE CHANGING CIRCUMSTANCES INDICATE THAT THE NEED FOR IT
MAY BE LESS THAN WHEN MADE."  LABOR BOARD V. PENNSYLVANIA GREYHOUND
LINES, 303 U.S. 261, 271.  SEE ALSO, FEDERAL TRADE COMM'N V. GOODYEAR
TIRE & RUBBER CO., 304 U.S. 257. 

FN8  "...  THE BREADTH OF THE ORDER, LIKE THE INJUNCTION OF A COURT,
MUST DEPEND UPON THE CIRCUMSTANCES OF EACH CASE, THE PURPOSE BEING TO
PREVENT VIOLATIONS, THE THREAT OF WHICH IN THE FUTURE IS INDICATED
BECAUSE OF THEIR SIMILARITY OR RELATION TO THOSE UNLAWFUL ACTS WHICH
THE BOARD HAS FOUND TO HAVE BEEN COMMITTED BY THE EMPLOYER IN THE
PAST.  ...  WE HOLD ONLY THAT THE NATIONAL LABOR RELATIONS ACT DOES NOT
GIVE THE BOARD AN AUTHORITY, WHICH COURTS CANNOT RIGHTLY EXERCISE, TO
ENJOIN VIOLATIONS OF ALL THE PROVISIONS OF THE STATUTE MERELY BECAUSE
THE VIOLATION OF ONE HAS BEEN FOUND.  TO JUSTIFY AN ORDER RESTRAINING
OTHER VIOLATIONS IT MUST APPEAR THAT THEY BEAR SOME RESEMBLANCE TO THAT
WHICH THE EMPLOYER HAS COMMITTED OR THAT DANGER OF THEIR COMMISSION IN
THE FUTURE IS TO BE ANTICIPATED FROM THE COURSE OF HIS CONDUCT IN THE
PAST.  THAT JUSTIFICATION IS LACKING HERE."  LABOR BOARD V. EXPRESS
PUB. CO., 312 U.S. 426, 436-437, AND SEE PP. 438-439. 

SEE ALSO, MAY DEPT. STORES CO. V. LABOR BOARD, 326 U.S. 376, 392-393;
J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332, 341-342. 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE JOIN
IN PART I OF THIS OPINION, BUT THINK THE BOARD'S ORDER SHOULD BE
ENFORCED WITHOUT MODIFICATION. 

                             APPENDIX A. 

ORDER OF NATIONAL LABOR RELATIONS BOARD IN THE MATTER OF CROMPTON
HIGHLAND MILLS, INC., AND TEXTILE WORKERS UNION OF AMERICA, CIO, CASE
NO. 10-C-1812.   - DECIDED AUGUST 21, 1946. 

                                "ORDER 

"UPON THE ENTIRE RECORD IN THE CASE, AND PURSUANT TO SECTION 10(C) OF
THE NATIONAL LABOR RELATIONS ACT, THE NATIONAL LABOR RELATIONS BOARD
HEREBY ORDERS THAT THE RESPONDENT, CROMPTON-HIGHLAND MILLS, INC.,
GRIFFIN, GEORGIA, AND ITS OFFICERS, AGENTS, SUCCESSORS AND ASSIGNS
SHALL: 

"1.  CEASE AND DESIST FROM: 

"(A)  REFUSING TO BARGAIN COLLECTIVELY WITH TEXTILE WORKERS UNION OF
AMERICA, CIO, AS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
PRODUCTION AND MAINTENANCE EMPLOYEES AT THE GRIFFIN PLANT, INCLUDING
WATCHMEN, BUT EXCLUDING OFFICE, CLERICAL, TECHNICAL, AND LABORATORY
EMPLOYEES, SECTION MEN IN THE SPINNING ROOM, HEAD LOOM FIXERS IN THE
WEAVE ROOM, HEAD FIXERS IN THE CARD ROOM, ALL SUPERVISORY EMPLOYEES OF
THE GRADE OF SECOND HAND AND ABOVE, AND ALL OTHER SUPERVISORY EMPLOYEES
WITH AUTHORITY TO HIRE, PROMOTE, DISCHARGE, DISCIPLINE, OR OTHERWISE
EFFECT CHANGES IN THE STATUS OF EMPLOYEES, OR EFFECTIVELY RECOMMEND
SUCH ACTION, BY TAKING ACTION, WITHOUT PRIOR CONSULTATION WITH SAID
ORGANIZATION, WITH RESPECT TO RATES OF PAY, WAGES, HOURS OF EMPLOYMENT,
AND OTHER CONDITIONS OF EMPLOYMENT. 

"(B)  IN ANY MANNER INTERFERING WITH THE EFFORTS OF TEXTILE WORKERS
UNION OF AMERICA, CIO, TO BARGAIN COLLECTIVELY WITH IT AS THE
REPRESENTATIVE OF ITS EMPLOYEES IN THE APPROPRIATE UNIT DESCRIBED
ABOVE. 

"2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION, WHICH THE BOARD FINDS
WILL EFFECTUATE THE POLICIES OF THE ACT: 

"(A)  UPON REQUEST, BARGAIN COLLECTIVELY WITH TEXTILE WORKERS UNION
OF AMERICA, CIO, AS THE EXCLUSIVE REPRESENTATIVE OF ALL ITS EMPLOYEES
IN THE APPROPRIATE UNIT DESCRIBED ABOVE WITH RESPECT TO RATES OF PAY,
WAGES, HOURS OF EMPLOYMENT, AND OTHER CONDITIONS OF EMPLOYMENT; 

"(B)  POST AT ITS PLANT AT GRIFFIN, GEORGIA, COPIES OF THE NOTICE
ATTACHED HERETO, MARKED 'APPENDIX A.'  COPIES OF SUCH NOTICE, TO BE
FURNISHED BY THE REGIONAL DIRECTOR FOR THE TENTH REGION, SHALL, AFTER
BEING DULY SIGNED BY THE RESPONDENT'S REPRESENTATIVE, BE POSTED BY THE
RESPONDENT IMMEDIATELY UPON RECEIPT THEREOF, AND MAINTAINED BY IT FOR
SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED.  REASONABLE STEPS SHALL BE TAKEN BY THE RESPONDENT TO INSURE
THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL; 

"(C)  NOTIFY THE REGIONAL DIRECTOR FOR THE TENTH REGION (ATLANTA,
GEORGIA), IN WRITING, WITHIN TEN (10) DAYS FROM THE DATE OF THIS ORDER,
WHAT STEPS THE RESPONDENT HAS TAKEN TO COMPLY HEREWITH."  70 N.L.R.B.
AT PP. 208-209. 

"APPENDIX A

                       "NOTICE TO ALL EMPLOYEES 

"PURSUANT TO A DECISION AND ORDER OF THE NATIONAL LABOR RELATIONS
BOARD, AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NATIONAL LABOR
RELATIONS ACT, WE HEREBY NOTIFY OUR EMPLOYEES THAT: 

"WE WILL BARGAIN COLLECTIVELY WITH TEXTILE WORKERS UNION OF AMERICA,
CIO, AS THE EXCLUSIVE REPRESENTATIVE OF ALL EMPLOYEES IN THE BARGAINING
UNIT DESCRIBED BELOW, WITH RESPECT TO RATES OF PAY, WAGES, HOURS OF
EMPLOYMENT, AND OTHER CONDITIONS OF EMPLOYMENT. 

"WE WILL NOT MAKE ANY CHANGES WITH RESPECT TO RATES OF PAY, WAGES,
HOURS OF EMPLOYMENT, OR OTHER CONDITIONS OF EMPLOYMENT OF OUR EMPLOYEES
IN THE BARGAINING UNIT DESCRIBED BELOW, WITHOUT PRIOR CONSULTATION WITH
TEXTILE WORKERS UNION OF AMERICA, CIO. 

"WE WILL NOT IN ANY MANNER INTERFERE WITH THE EFFORTS OF TEXTILE
WORKERS UNION OF AMERICA, CIO, AS THE EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES IN THE UNIT DESCRIBED BELOW, TO BARGAIN COLLECTIVELY WITH
US. 

"THE BARGAINING UNIT IS:  ALL PRODUCTION AND MAINTENANCE EMPLOYEES AT
OUR GRIFFIN PLANT, INCLUDING WATCHMEN, BUT EXCLUDING OFFICE, CLERICAL,
TECHNICAL AND LABORATORY EMPLOYEES, SECTION MEN IN THE SPINNING ROOM,
HEAD LOOM FIXERS IN THE WEAVE ROOM, HEAD FIXERS IN THE CARD ROOM, ALL
SUPERVISORY EMPLOYEES OF THE GRADE OF SECOND HAND AND ABOVE, AND ALL
OTHER SUPERVISORY EMPLOYEES WITH AUTHORITY TO HIRE, PROMOTE, DISCHARGE,
DISCIPLINE, OR OTHERWISE EFFECT CHANGES IN THE STATUS OF EMPLOYEES, OR
EFFECTIVELY RECOMMEND SUCH ACTION. 

                    "CROMPTON-HIGHLAND MILLS, INC.

               "BY .................................

                   (REPRESENTATIVE.)    (TITLE.) 

"DATED.............. 

"THIS NOTICE MUST REMAIN POSTED FOR 60 DAYS FROM THE DATE HEREOF, AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL."  ID.
AT PP. 210-211. 

                 APPENDIX B. 

QUOTATIONS FROM THE "FINDINGS OF FACT" AS TO - "III.  THE UNFAIR
LABOR PRACTICES, A. THE REFUSAL TO BARGAIN" AS STATED IN THE
INTERMEDIATE REPORT OF THE TRIAL EXAMINER, ADOPTED BY THE NATIONAL
LABOR RELATIONS BOARD AND PRINTED BY THE BOARD FOLLOWING ITS DECISION
AND ORDER. 

"NO FURTHER CONFERENCE WAS HELD UNTIL DECEMBER 19, WHEN A MEETING WAS
HELD AT THE REQUEST OF THE UNION. 

"THE ISSUES UPON WHICH THE PARTIES WERE STILL IN DISAGREEMENT AT THIS
TIME INVOLVED WAGES, WORK ASSIGNMENTS, INSURANCE PROVISIONS, SEVERANCE
PAY, VACATIONS, UNION SECURITY, ARBITRATION, UNION ACTIVITY UPON
COMPANY TIME, AND THE PREAMBLE OF THE CONTRACT, IN WHICH THE RESPONDENT
SOUGHT TO DEFINE THE PARTIES TO THE AGREEMENT AS THE RESPONDENT AND THE
'EMPLOYEES' IN THE APPROPRIATE UNIT, AS OPPOSED TO THE UNION'S POSITION
THAT THE UNION BE DENOMINATED AS PARTY TO THE CONTRACT.  ON THE ISSUE
OF UNION SECURITY, ALTHOUGH THE UNION HAD OFFERED TO COMPROMISE FOR
MAINTENANCE OF MEMBERSHIP, THE RESPONDENT REFUSED TO GRANT ANY FORM OF
SECURITY.  AS TO WAGES, ALTHOUGH IT HAD ORIGINALLY REJECTED THE UNION'S
PROPOSALS FOR ANY WAGE INCREASE, IT PROPOSED WHAT AMOUNTED TO AN
INCREASE OF ABOUT ONE OR ONE AND ONE-HALF CENTS PER HOUR AT THIS TIME. 

"ON JANUARY 1, 1946, THE MEMBERS OF THE UNION NEGOTIATION COMMITTEE,
EMPLOYED AT THE PLANT, WERE SUMMONED TO THE OFFICE OF PLANT MANAGER
PICKFORD AND INFORMED THAT THE RESPONDENT WAS GRANTING A GENERAL WAGE
INCREASE TO ALL EMPLOYEES,  FN18  AMOUNTING TO ABOUT 2 TO 6 CENTS PER
HOUR.  PICKFORD READ TO THE COMMITTEE THE FOLLOWING LETTER UNDER THAT
DATE, ADDRESSED TO UNION DIRECTOR DOUTY: 

"IN THE COURSE OF OUR EXTENDED CONTRACT NEGOTIATIONS WE HAVE
REPEATEDLY TOLD YOU THAT OUR MILL WOULD BE AMONG THE FIRST TO MAKE WAGE
ADJUSTMENTS IN THIS LOCALITY.  WE HAVE LEARNED THAT CERTAIN OF THE
MILLS IN THIS LOCALITY ARE ABOUT TO ADJUST THEIR WAGES AND WE ARE,
THEREFORE, MAKING COMPARABLE ADJUSTMENTS IN OUR WAGE RATES EFFECTIVE
MONDAY, DECEMBER 31ST, 1945.  A COPY OF THE NOTICE WHICH HAS BEEN
POSTED IN THE MILL TODAY OUTLINING THE VARIOUS RATE ADJUSTMENTS IS
ATTACHED HERETO. 

"ATTACHED TO THE LETTER WERE NOTICES DIRECTED TO THE RESPECTIVE
DEPARTMENTS LISTING THE VARIOUS WAGE INCREASES.  THE LETTER WAS
RECEIVED BY DOUTY THE NEXT DAY.  WHILE THE NEGOTIATING COMMITTEE WAS IN
PICKFORD'S OFFICE, COPIES OF THE NOTICES ANNOUNCING THE WAGE INCREASES
WERE BEING POSTED ON THE BULLETIN BOARDS IN THE RESPECTIVE
DEPARTMENTS. 

"IT WILL BE SEEN FROM THE FOREGOING THAT NEITHER THE UNION NOR THE
NEGOTIATING COMMITTEE WAS CONSULTED FROM DECEMBER 19, THE DATE OF THE
LAST CONFERENCE, TO JANUARY 1, 1946, THE DATE OF THE GRANTING OF THE
WAGE INCREASE.  NOR WAS THE COMMITTEE CONSULTED ON THE LATTER DATE. 
THE RESPONDENT MERELY PRESENTED IT WITH A FAIT ACCOMPLI, WITHOUT
AFFORDING THE UNION AN OPPORTUNITY TO NEGOTIATE WITH RESPECT TO THE
AMOUNT OF THE INCREASE, THE EMPLOYEES TO WHOM THE INCREASE WOULD BE
APPLICABLE,  FN19  THE EFFECTIVE DATE OF THE INCREASE OR ANY OF THE
FACTORS NORMALLY ENVISAGED IN THE COLLECTIVE BARGAINING PROCESS. 

"IT CANNOT BE DISPUTED, NOR DOES THE RESPONDENT DENY, THAT THE
GRANTING OF THE WAGE INCREASE AT THAT TIME, CONSTITUTED UNILATERAL
ACTION.  ... 

     .         .      .         .         . 

"WHILE IT IS EVIDENT THAT THE UNION WAS INSISTENT IN ITS DEMAND FOR
SOME FORM OF UNION SECURITY DURING ITS NEGOTIATIONS WITH THE
RESPONDENT, THE PREPONDERANCE OF THE CREDIBLE EVIDENCE DOES NOT SUPPORT
THE RESPONDENT'S POSITION THAT THE UNION HAD, IN EFFECT, PRESENTED AN
ULTIMATUM THAT NO CONTRACT WOULD BE CONSUMMATED WHICH DID NOT AFFORD
UNION SECURITY.  AS HAS ALREADY BEEN INDICATED, UNION SECURITY WAS ONLY
ONE OF SEVERAL MATTERS, ASIDE FROM THE WAGE QUESTION, UPON WHICH
AGREEMENT HAD NOT YET BEEN REACHED.  IF, AS THE RESPONDENT CONTENDS, IT
HAD LEFT NO DOUBT AS TO ITS POSITION ON THE ISSUE OF UNION SECURITY IN
THE CONFERENCES OF OCTOBER 17 AND 18, AND IT WAS CONVINCED THAT THE
UNION WAS ADAMANT ON THIS ISSUE, IT SEEMS UNLIKELY THAT THE PARTIES
WOULD HAVE CONFERRED ON NOVEMBER 7 AND 8, AND AGAIN ON DECEMBER 19,
WHEN THE UNION SUBMITTED A WRITTEN WAGE PROPOSAL.    "IT IS CLEAR,
THEREFORE, AND THE UNDERSIGNED FINDS, THAT, ALTHOUGH THE PARTIES HAD
REACHED A TEMPORARY IMPASSE ON DECEMBER 19 ON SOME ISSUES, PRINCIPALLY
WAGES, UNION SECURITY, AND CHECK-OFF, THERE IS NO SUBSTANTIAL BASIS FOR
CONCLUDING THAT THE UNION HAD ABANDONED NEGOTIATIONS AT THIS TIME. 
MOREOVER, EVEN IF THE PARTIES HAD REACHED AN IMPASSE IN THEIR
NEGOTIATIONS, THIS OBVIOUSLY COULD NOT AFFECT THE UNION'S STATUS AS
MAJORITY REPRESENTATIVE.  THE PRINCIPLE THAT 'A BARGAINING RELATIONSHIP
ONCE RIGHTLY ESTABLISHED MUST BE PERMITTED TO EXIST AND FUNCTION FOR A
REASONABLE PERIOD IN WHICH IT CAN BE GIVEN A FAIR CHANCE TO SUCCEED,'
IS WELL-ESTABLISHED.  FN20  EQUALLY CLEAR IS THE PROPOSITION THAT THE
GRANTING OF A UNILATERAL WAGE INCREASE OR OTHER CONCESSION BY AN
EMPLOYER TO HIS EMPLOYEES WHILE THE DESIGNATED UNION IS ATTEMPTING TO
BARGAIN CONCERNING THE SAME SUBJECT MATTER, CONSTITUTES A VIOLATION OF
THE EMPLOYER'S DUTY TO BARGAIN WITH THE UNION.  FN21 IT IS NOT A
QUESTION, CONTRARY TO THE RESPONDENT'S ARGUMENT, OF GIVING THE UNION
CREDIT FOR A WAGE INCREASE WHICH IT DID NOT OBTAIN, BUT RATHER OF THE
CONDUCT OF THE RESPONDENT IN GRANTING THE INCREASE IN DEROGATION OF THE
UNION'S STATUS AS STATUTORY REPRESENTATIVE, BY DEPRIVING THE UNION OF
ITS RIGHT TO BARGAIN WITH RESPECT TO SUCH INCREASE. 

.         .         .         .         . 

"UPON THE BASIS OF THE FOREGOING, AND UPON THE ENTIRE RECORD, THE
UNDERSIGNED CONCLUDES AND FURTHER FINDS THAT, BY FAILING AND REFUSING
TO FURNISH THE UNION WITH ESSENTIAL AND PERTINENT INFORMATION RELATING
TO THE RESPONDENT'S WAGE STRUCTURE UNDER ITS 'POINT PLAN,' JOB
SPECIFICATIONS, WORK ASSIGNMENTS, AND INFORMATION APPERTAINING THERETO,
AND BY GRANTING ITS EMPLOYEES A UNILATERAL WAGE INCREASE ON JANUARY 1,
1946, THE RESPONDENT HAS FROM AUGUST 31, 1945, TO DECEMBER 19, 1945,
AND THEREAFTER TO DATE, INCLUDING JANUARY 1, 1946, FAILED AND REFUSED
TO BARGAIN WITH THE UNION AS THE EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE OF THE EMPLOYEES IN THE APPROPRIATE UNIT ABOVE
DESCRIBED, AND HAS THEREBY INTERFERED WITH, RESTRAINED, AND COERCED ITS
EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED UNDER THE ACT."  70
N.L.R.B. AT PP. 220-221, 222, 223-224. 

THE BOARD LEFT NO DOUBT THAT IT RELIED SOLELY ON THE GRANTING OF THE
WAGE INCREASE, WHEN IT ISSUED ITS DECISION AND ORDER IN THIS CASE. 
THIS APPEARS FROM THE FOLLOWING EXPRESS STATEMENT IN THE BOARD'S
DECISION AND ORDER: 

"1.  THE TRIAL EXAMINER FOUND THAT THE RESPONDENT, IN VIOLATION OF
THE UNION AS THE STATUTORY REPRESENTATIVE OF THE RESPONDENT'S EMPLOYEES
BY REFUSING TO FURNISH THE UNION WITH CERTAIN DETAILED INFORMATION
RELATING TO THE INCENTIVE WAGE PLAN AND BY GRANTING A WAGE INCREASE TO
ITS EMPLOYEES WITHOUT CONSULTING THE UNION.  ALTHOUGH WE AGREE WITH THE
TRIAL EXAMINER'S CONCLUSION, WE, HOWEVER, REST OUR DETERMINATION SOLELY
ON THE LATTER GROUND."  ID. AT P. 206. 

FN18  "AS WILL BE SEEN, CERTAIN EMPLOYEES WERE NOT INCLUDED IN THE
WAGE INCREASE." 

FN19 "THE INCREASE DID NOT AFFECT JANITORS, SWEEPERS, SCRUBBERS,
OUTSIDE HELP, AND VARIOUS OTHER CATEGORIES OF EMPLOYEES INCLUDED IN THE
UNIT REPRESENTED BY THE UNION." 

FN20  "SEE FRANKS BROS. CO. V. N.L.R.B., 321 U.S. 702, 705." 

FN21  "SEE ALUMINUM ORE COMPANY V. N.L.R.B., 131 F.(2D) 485, 487,
(C.C.A. 7), ENF'G. 39 N.L.R.B. 1286, 1295-1299; MAY DEPARTMENT STORES
V. N.L.R.B., 326 U.S. 376.  SEE ALSO, MAJORITY RULE IN COLLECTIVE
BARGAINING, BY RUTH WEYAND, COLUMBIA LAW REVIEW, VOL. XLV, 579-583, AND
FOOTNOTES AT 581, FOR AN EXCELLENT DISCUSSION AND CITATION OF AUTHORITY
ON, THE POWER OF A STATUTORY REPRESENTATIVE TO BAR UNILATERAL CHANGES
BY EMPLOYER." 
..END :

















TERMINIELLO V. CHICAGO, 337 U.S. 1 


NO. 272.  ARGUED FEBRUARY 1, 1949.  - DECIDED MAY 16, 1949.  - 400 ILL.
23, 79 N.E.2D 39, REVERSED. 


IN A MEETING WHICH ATTRACTED CONSIDERABLE PUBLIC ATTENTION, PETITIONER
ADDRESSED A LARGE AUDIENCE IN AN AUDITORIUM OUTSIDE OF WHICH WAS AN
ANGRY AND TURBULENT CROWD PROTESTING AGAINST THE MEETING.  HE CONDEMNED
THE CONDUCT OF THE CROWD OUTSIDE AND VIGOROUSLY CRITICIZED VARIOUS
POLITICAL AND RACIAL GROUPS.  NOTWITHSTANDING EFFORTS OF A CORDON OF
POLICE TO MAINTAIN ORDER, THERE WERE SEVERAL DISTURBANCES IN THE
CROWD.  PETITIONER WAS CHARGED WITH VIOLATION OF AN ORDINANCE
FORBIDDING ANY "BREACH OF THE PEACE," AND THE TRIAL COURT INSTRUCTED
THE JURY THAT ANY MISBEHAVIOR WHICH "STIRS THE PUBLIC TO ANGER, INVITES
DISPUTE, BRINGS ABOUT A CONDITION OF UNREST, OR CREATES A DISTURBANCE"
VIOLATES THE ORDINANCE.  PETITIONER DID NOT EXCEPT TO THAT INSTRUCTION,
BUT HE DID MAINTAIN AT ALL TIMES THAT, AS APPLIED TO HIS CONDUCT, THE
ORDINANCE VIOLATED HIS RIGHT OF FREE SPEECH UNDER THE FEDERAL
CONSTITUTION.  HE WAS CONVICTED ON A GENERAL VERDICT AND HIS CONVICTION
WAS AFFIRMED BY AN INTERMEDIATE APPELLATE COURT AND BY THE SUPREME
COURT OF THE STATE.  HELD: 

1.  AS CONSTRUED BY THE TRIAL COURT AND APPLIED TO PETITIONER, THE
ORDINANCE VIOLATES THE RIGHT OF FREE SPEECH GUARANTEED BY THE FIRST
AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT. 
PP. 4-5. 

2.  IT IS IMMATERIAL THAT PETITIONER TOOK NO EXCEPTION TO THE
INSTRUCTION AND THAT, THROUGHOUT THE APPELLATE PROCEEDINGS, THE STATE
COURTS ASSUMED THAT THE ONLY CONDUCT PUNISHABLE AND PUNISHED UNDER THE
ORDINANCE WAS CONDUCT CONSTITUTING "FIGHTING WORDS," SINCE THE VERDICT
WAS A GENERAL ONE AND IT CANNOT BE SAID THAT PETITIONER'S CONVICTION
WAS NOT BASED UPON THE INSTRUCTION QUOTED ABOVE.  STROMBERG V.
CALIFORNIA, 283 U.S. 359.  PP. 5-6. 

TERMINIELLO V. CHICAGO. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

PETITIONER WAS CONVICTED IN A STATE COURT OF VIOLATING A CITY
ORDINANCE FORBIDDING ANY BREACH OF THE PEACE.  THE ILLINOIS APPELLATE
COURT AFFIRMED.  332 ILL. APP. 17, 74 N.E.2D 45.  THE SUPREME COURT OF
ILLINOIS AFFIRMED.  400 ILL. 23, 79 N.E.2D 39.  THIS COURT GRANTED
CERTIORARI.  335 U.S. 890.  REVERSED, P. 6. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER AFTER JURY TRIAL WAS FOUND GUILTY OF DISORDERLY CONDUCT IN
VIOLATION OF A CITY ORDINANCE OF CHICAGO  FN1  AND FINED.  THE CASE
GREW OUT OF AN ADDRESS HE DELIVERED IN AN AUDITORIUM IN CHICAGO UNDER
THE AUSPICES OF THE CHRISTIAN VETERANS OF AMERICA.  THE MEETING
COMMANDED CONSIDERABLE PUBLIC ATTENTION.  THE AUDITORIUM WAS FILLED TO
CAPACITY WITH OVER EIGHT HUNDRED PERSONS PRESENT.  OTHERS WERE TURNED
AWAY.  OUTSIDE OF THE AUDITORIUM A CROWD OF ABOUT ONE THOUSAND PERSONS
GATHERED TO PROTEST AGAINST THE MEETING.  A CORDON OF POLICEMEN WAS
ASSIGNED TO THE MEETING TO MAINTAIN ORDER; BUT THEY WERE NOT ABLE TO
PREVENT SEVERAL DISTURBANCES.  THE CROWD OUTSIDE WAS ANGRY AND
TURBULENT. 

PETITIONER IN HIS SPEECH CONDEMNED THE CONDUCT OF THE CROWD OUTSIDE
AND VIGOROUSLY, IF NOT VICIOUSLY, CRITICIZED VARIOUS POLITICAL AND
RACIAL GROUPS WHOSE ACTIVITIES HE DENOUNCED AS INIMICAL TO THE NATION'S
WELFARE. 

THE TRIAL COURT CHARGED THAT "BREACH OF THE PEACE" CONSISTS OF ANY
"MISBEHAVIOR WHICH VIOLATES THE PUBLIC PEACE AND DECORUM"; AND THAT THE
"MISBEHAVIOR MAY CONSTITUTE A BREACH OF THE PEACE IF IT STIRS THE
PUBLIC TO ANGER, INVITES DISPUTE, BRINGS ABOUT A CONDITION OF UNREST,
OR CREATES A DISTURBANCE, OR IF IT MOLESTS THE INHABITANTS IN THE
ENJOYMENT OF PEACE AND QUIET BY AROUSING ALARM."  PETITIONER DID NOT
TAKE EXCEPTION TO THAT INSTRUCTION.  BUT HE MAINTAINED AT ALL TIMES
THAT THE ORDINANCE AS APPLIED TO HIS CONDUCT VIOLATED HIS RIGHT OF FREE
SPEECH UNDER THE FEDERAL CONSTITUTION.  THE JUDGMENT OF CONVICTION WAS
AFFIRMED BY THE ILLINOIS APPELLATE COURT (332 ILL. APP. 17, 74 N.E.2D
45) AND BY THE ILLINOIS SUPREME COURT.  396 ILL. 41, 71 N.E.2D 2; 400
ILL. 23, 79 N.E.2D 39.  THE CASE IS HERE ON A PETITION FOR CERTIORARI
WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED. 

THE ARGUMENT HERE HAS BEEN FOCUSED ON THE ISSUE OF WHETHER THE
CONTENT OF PETITIONER'S SPEECH WAS COMPOSED OF DERISIVE, FIGHTING
WORDS, WHICH CARRIED IT OUTSIDE THE SCOPE OF THE CONSTITUTIONAL
GUARANTEES.  SEE CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 310.  WE DO NOT REACH THAT QUESTION, FOR
THERE IS A PRELIMINARY QUESTION THAT IS DISPOSITIVE OF THE CASE. 

AS WE HAVE NOTED, THE STATUTORY WORDS "BREACH OF THE PEACE" WERE
DEFINED IN INSTRUCTIONS TO THE JURY TO INCLUDE SPEECH WHICH "STIRS THE
PUBLIC TO ANGER, INVITES DISPUTE, BRINGS ABOUT A CONDITION OF UNREST,
OR CREATES A DISTURBANCE  ...  "  THAT CONSTRUCTION OF THE ORDINANCE IS
A RULING ON A QUESTION OF STATE LAW THAT IS AS BINDING ON US AS THOUGH
THE PRECISE WORDS HAD BEEN WRITTEN INTO THE ORDINANCE.  SEE HEBERT V.
LOUISIANA, 272 U.S. 312, 317; WINTERS V. NEW YORK, 333 U.S. 507, 514. 

THE VITALITY OF CIVIL AND POLITICAL INSTITUTIONS IN OUR SOCIETY
DEPENDS ON FREE DISCUSSION.  AS CHIEF JUSTICE HUGHES WROTE IN DE JONGE
V. OREGON, 299 U.S. 353, 365, IT IS ONLY THROUGH FREE DEBATE AND FREE
EXCHANGE OF IDEAS THAT GOVERNMENT REMAINS RESPONSIVE TO THE WILL OF THE
PEOPLE AND PEACEFUL CHANGE IS EFFECTED.  THE RIGHT TO SPEAK FREELY AND
TO PROMOTE DIVERSITY OF IDEAS AND PROGRAMS IS THEREFORE ONE OF THE
CHIEF DISTINCTIONS THAT SETS US APART FROM TOTALITARIAN REGIMES. 

ACCORDINGLY A FUNCTION OF FREE SPEECH UNDER OUR SYSTEM OF GOVERNMENT
IS TO INVITE DISPUTE.  IT MAY INDEED BEST SERVE ITS HIGH PURPOSE WHEN
IT INDUCES A CONDITION OF UNREST, CREATES DISSATISFACTION WITH
CONDITIONS AS THEY ARE, OR EVEN STIRS PEOPLE TO ANGER.  SPEECH IS OFTEN
PROVOCATIVE AND CHALLENGING.  IT MAY STRIKE AT PREJUDICES AND
PRECONCEPTIONS AND HAVE PROFOUND UNSETTLING EFFECTS AS IT PRESSES FOR
ACCEPTANCE OF AN IDEA.  THAT IS WHY FREEDOM OF SPEECH, THOUGH NOT
ABSOLUTE, CHAPLINSKY V. NEW HAMPSHIRE, SUPRA, PP. 571-572, IS
NEVERTHELESS PROTECTED AGAINST CENSORSHIP OR PUNISHMENT, UNLESS SHOWN
LIKELY TO PRODUCE A CLEAR AND PRESENT DANGER OF A SERIOUS SUBSTANTIVE
EVIL THAT RISES FAR ABOVE PUBLIC INCONVENIENCE, ANNOYANCE, OR UNREST. 
SEE BRIDGES V. CALIFORNIA, 314 U.S. 252, 262; CRAIG V. HARNEY, 331 U.S.
367, 373.  THERE IS NO ROOM UNDER OUR CONSTITUTION FOR A MORE
RESTRICTIVE VIEW.  FOR THE ALTERNATIVE WOULD LEAD TO STANDARDIZATION OF
IDEAS EITHER BY LEGISLATURES, COURTS, OR DOMINANT POLITICAL OR
COMMUNITY GROUPS. 

THE ORDINANCE AS CONSTRUED BY THE TRIAL COURT SERIOUSLY INVADED THIS
PROVINCE.  IT PERMITTED CONVICTION OF PETITIONER IF HIS SPEECH STIRRED
PEOPLE TO ANGER, INVITED PUBLIC DISPUTE, OR BROUGHT ABOUT A CONDITION
OF UNREST.  A CONVICTION RESTING ON ANY OF THOSE GROUNDS MAY NOT
STAND. 

THE FACT THAT PETITIONER TOOK NO EXCEPTION TO THE INSTRUCTION IS
IMMATERIAL.  NO EXCEPTION TO THE INSTRUCTIONS WAS TAKEN IN STROMBERG V.
CALIFORNIA, 283 U.S. 359.  BUT A JUDGMENT OF CONVICTION BASED ON A
GENERAL VERDICT UNDER A STATE STATUTE WAS SET ASIDE IN THAT CASE,
BECAUSE ONE PART OF THE STATUTE WAS UNCONSTITUTIONAL.  THE STATUTE HAD
BEEN CHALLENGED AS UNCONSTITUTIONAL AND THE INSTRUCTION WAS FRAMED IN
ITS LANGUAGE.  THE COURT HELD THAT THE ATTACK ON THE STATUTE AS A WHOLE
WAS EQUALLY AN ATTACK ON EACH OF ITS INDIVIDUAL PARTS.  SINCE THE
VERDICT WAS A GENERAL ONE AND DID NOT SPECIFY THE GROUND UPON WHICH IT
RESTED, IT COULD NOT BE SUSTAINED.  FOR ONE PART OF THE STATUTE WAS
UNCONSTITUTIONAL AND IT COULD NOT BE DETERMINED THAT THE DEFENDANT WAS
NOT CONVICTED UNDER THAT PART. 

THE PRINCIPLE OF THAT CASE CONTROLS THIS ONE.  AS WE HAVE SAID, THE
GLOSS WHICH ILLINOIS PLACED ON THE ORDINANCE GIVES IT A MEANING AND
APPLICATION WHICH ARE CONCLUSIVE ON US.  WE NEED NOT CONSIDER WHETHER
AS CONSTRUED IT IS DEFECTIVE IN ITS ENTIRETY.  AS CONSTRUED AND APPLIED
IT AT LEAST CONTAINS PARTS THAT ARE UNCONSTITUTIONAL.  THE VERDICT WAS
A GENERAL ONE; AND WE DO NOT KNOW ON THIS RECORD BUT WHAT IT MAY REST
ON THE INVALID CLAUSES. 

THE STATUTE AS CONSTRUED IN THE CHARGE TO THE JURY WAS PASSED ON BY
THE ILLINOIS COURTS AND SUSTAINED BY THEM OVER THE OBJECTION THAT AS SO
READ IT VIOLATED THE FOURTEENTH AMENDMENT.  THE FACT THAT THE PARTIES
DID NOT DISPUTE ITS CONSTRUCTION MAKES THE ADJUDICATION NO LESS RIPE
FOR OUR REVIEW, AS THE STROMBERG DECISION INDICATES.  WE CAN ONLY TAKE
THE STATUTE AS THE STATE COURTS READ IT. FROM OUR POINT OF VIEW IT IS
IMMATERIAL WHETHER THE STATE LAW QUESTION AS TO ITS MEANING WAS
CONTROVERTED OR ACCEPTED.  THE PINCH OF THE STATUTE IS IN ITS
APPLICATION.  IT IS THAT QUESTION WHICH THE PETITIONER HAS BROUGHT
HERE.  TO SAY THEREFORE THAT THE QUESTION ON THIS PHASE OF THE CASE IS
WHETHER THE TRIAL JUDGE GAVE A WRONG CHARGE IS WHOLLY TO MISCONCEIVE
THE ISSUE. 

BUT IT IS SAID THAT THROUGHOUT THE APPELLATE PROCEEDINGS THE ILLINOIS
COURTS ASSUMED THAT THE ONLY CONDUCT PUNISHABLE AND PUNISHED UNDER THE
ORDINANCE WAS CONDUCT CONSTITUTING "FIGHTING WORDS."  THAT EMPHASIZES,
HOWEVER, THE IMPORTANCE OF THE RULE OF THE STROMBERG CASE.  PETITIONER
WAS NOT CONVICTED UNDER A STATUTE SO NARROWLY CONSTRUED.  FOR ALL
ANYONE KNOWS HE WAS CONVICTED UNDER THE PARTS OF THE ORDINANCE (AS
CONSTRUED) WHICH, FOR EXAMPLE, MAKE IT AN OFFENSE MERELY TO INVITE
DISPUTE OR TO BRING ABOUT A CONDITION OF UNREST.  WE CANNOT AVOID THAT
ISSUE BY SAYING THAT ALL ILLINOIS DID WAS TO MEASURE PETITIONER'S
CONDUCT, NOT THE ORDINANCE, AGAINST THE CONSTITUTION.  PETITIONER
RAISED BOTH POINTS - THAT HIS SPEECH WAS PROTECTED BY THE CONSTITUTION;
THAT THE INCLUSION OF HIS SPEECH WITHIN THE ORDINANCE WAS A VIOLATION
OF THE CONSTITUTION.  WE WOULD, THEREFORE, STRAIN AT TECHNICALITIES TO
CONCLUDE THAT THE CONSTITUTIONALITY OF THE ORDINANCE AS CONSTRUED AND
APPLIED TO PETITIONER WAS NOT BEFORE THE ILLINOIS COURTS.  THE RECORD
MAKES CLEAR THAT PETITIONER AT ALL TIMES CHALLENGED THE
CONSTITUTIONALITY OF THE ORDINANCE AS CONSTRUED AND APPLIED TO HIM. 
REVERSED. 

FN1  "ALL PERSONS WHO SHALL MAKE, AID, COUNTENANCE, OR ASSIST IN
MAKING ANY IMPROPER NOISE, RIOT, DISTURBANCE, BREACH OF THE PEACE, OR
DIVERSION TENDING TO A BREACH OF THE PEACE, WITHIN THE LIMITS OF THE
CITY  ...  SHALL BE DEEMED GUILTY OF DISORDERLY CONDUCT, AND UPON
CONVICTION THEREOF, SHALL BE SEVERALLY FINED NOT LESS THAN ONE DOLLAR
NOR MORE THAN TWO HUNDRED DOLLARS FOR EACH OFFENSE."  MUNICIPAL CODE OF
CHICAGO, 1939, SEC. 193-1. 

MR. CHIEF JUSTICE VINSON, DISSENTING. 

I DISSENT.  THE COURT TODAY REVERSES THE SUPREME COURT OF ILLINOIS
BECAUSE IT DISCOVERS IN THE RECORD ONE SENTENCE IN THE TRIAL COURT'S
INSTRUCTIONS WHICH PERMITTED THE JURY TO CONVICT ON AN UNCONSTITUTIONAL
BASIS.  THE OFFENDING SENTENCE HAD HERETOFORE GONE COMPLETELY
UNDETECTED.  IT APPARENTLY WAS NOT EVEN NOTICED, MUCH LESS EXCEPTED TO,
BY THE PETITIONER'S COUNSEL AT THE TRIAL.  NO OBJECTION WAS MADE TO IT
IN THE TWO ILLINOIS APPELLATE TRIBUNALS WHICH REVIEWED THE CASE.  NOR
WAS IT MENTIONED IN THE PETITION FOR CERTIORARI OR THE BRIEFS IN THIS
COURT.  IN SHORT, THE OFFENDING SENTENCE IN THE CHARGE TO THE JURY WAS
NO PART OF THE CASE UNTIL THIS COURT'S INDEPENDENT RESEARCH FERRETED IT
OUT OF A LENGTHY AND SOMEWHAT CONFUSED RECORD.  I THINK IT TOO PLAIN
FOR ARGUMENT THAT A REVERSAL ON SUCH A BASIS DOES NOT ACCORD WITH ANY
PRINCIPLE GOVERNING REVIEW OF STATE COURT DECISIONS HERETOFORE
ANNOUNCED BY THIS COURT.  CERTAINLY, STROMBERG V. CALIFORNIA, 283 U.S.
359(1931), AS MR. JUSTICE FRANKFURTER DEMONSTRATES, OFFERS NO PRECEDENT
FOR TODAY'S ACTION. 

IT WILL NOT DO TO SAY THAT, BECAUSE THE ILLINOIS APPELLATE COURTS
AFFIRMED THE PETITIONER'S CONVICTION IN THE FACE OF A CONSTITUTIONAL
ATTACK, THEY NECESSARILY MUST HAVE APPROVED THE INTERPRETATION OF THE
CHICAGO ORDINANCE CONTAINED IN THE UNNOTICED INSTRUCTION.  THE FACT IS
THAT THE ILLINOIS COURTS CONSTRUED THE ORDINANCE AS PUNISHING ONLY THE
USE OF "FIGHTING WORDS."  THEIR OPINIONS PLAINLY SHOW THAT THEY
AFFIRMED BECAUSE THEY THOUGHT THAT THE PETITIONER'S SPEECH HAD BEEN
FOUND BY THE JURY TO COME WITHIN THAT CATEGORY.  FN1  THEIR ACTION WAS
NOT, AND CANNOT HERE BE TAKEN TO BE, AN APPROVAL OF THE ORDINANCE "AS
CONSTRUED" BY THE INSTRUCTION BECAUSE THE RECORD CLEARLY SHOWS THAT THE
CASE WAS TREATED ON APPEAL, BOTH BY COUNSEL AND BY THE COURTS, AS IF NO
SUCH INSTRUCTION EXISTED.  THIS COURT CAN REVERSE THE CONVICTION
BECAUSE OF THE INSTRUCTION ONLY IF WE ARE TO SAY THAT EVERY TIME A
STATE COURT AFFIRMS A CONVICTION IT NECESSARILY MUST APPROVE OF EVERY
UNNOTICED AND UNOBJECTED TO ERROR WHICH WE MAY DISCOVER IN THE RECORD. 
IF SUCH IS THE DOCTRINE OF THIS CASE, I FEEL COMPELLED TO REGISTER MY
EMPHATIC DISSENT. 

THE INSTRUCTION INFORMED THE JURY THAT THEY COULD RETURN A VERDICT OF
GUILTY IF THEY FOUND THAT THE PETITIONER'S SPEECH WAS ONE WHICH "STIRS
THE PUBLIC TO ANGER, INVITES DISPUTE, BRINGS ABOUT A CONDITION OF
UNREST, OR CREATES A DISTURBANCE."  IF THE PETITIONER'S COUNSEL, WHO
CAREFULLY MADE OTHER CONSTITUTIONAL OBJECTIONS THROUGHOUT THE
PROCEEDINGS BELOW, HAD BROUGHT ANY ISSUE HERE AS TO THE CONSTITUTIONAL
VALIDITY OF THAT INSTRUCTION I WOULD AGREE WITH THE COURT'S DECISION. 
BUT THE RECORD GIVES ME NO BASIS ON WHICH TO BELIEVE THAT THE ILLINOIS
COURTS WOULD NOT ALSO HAVE SO DECIDED IF THAT ISSUE HAD BEEN PRESENTED
TO THEM. 

THE COURT, AS I UNDERSTAND IT, DOES NOT REACH THE ISSUE WHICH THE
PARTIES ARGUED HERE - WHETHER A PROPERLY INSTRUCTED JURY COULD
CONSTITUTIONALLY HAVE FOUND FROM THE CONFLICTING EVIDENCE IN THE RECORD
THAT, UNDER THE CIRCUMSTANCES, THE WORDS IN THE PETITIONER'S SPEECH
WERE "FIGHTING WORDS" TO THOSE INSIDE THE HALL WHO HEARD THEM. 
CERTAINLY, THE COURT DOES NOT DECIDE WHETHER THE VIOLENT OPPOSITION OF
THOSE OUTSIDE THE HALL, WHO DID NOT HEAR THE SPEECH, COULD
CONSTITUTIONALLY WARRANT THE CONVICTION OF THE PETITIONER IN ORDER TO
KEEP THE STREETS FROM BECOMING IDEOLOGICAL BATTLEGROUNDS.  SINCE
NEITHER OF THESE CONSTITUTIONAL ISSUES IS DECIDED BY THE COURT, I THINK
THAT IT IS NOT WITHIN MY PROVINCE TO INDICATE ANY OPINION CONCERNING
THEM.  SEE RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 568(1947). 

FN1  THE OPINIONS ARE REPORTED AT 332 ILL. APP. 17, 74 N.E.2D 45, AND
AT 400 ILL. 23, 79 N.E.2D 39.  SEE, PARTICULARLY, 332 ILL. APP. AT PP.
23 AND 38; 400 ILL. AT P. 33. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

FOR THE FIRST TIME IN THE COURSE OF THE 130 YEARS IN WHICH STATE
PROSECUTIONS HAVE COME HERE FOR REVIEW, THIS COURT IS TODAY REVERSING A
SENTENCE IMPOSED BY A STATE COURT ON A GROUND THAT WAS URGED NEITHER
HERE NOR BELOW AND THAT WAS EXPLICITLY DISCLAIMED ON BEHALF OF THE
PETITIONER AT THE BAR OF THIS COURT. 

THE IMPROMPRIETY OF THAT PART OF THE CHARGE WHICH IS NOW MADE THE
BASIS OF REVERSAL WAS NOT RAISED AT THE TRIAL NOR BEFORE THE APPELLATE
COURT OF ILLINOIS.  THE FACT THAT COUNSEL FOR TERMINIELLO WHOLLY
IGNORED IT IS EMPHASIZED BY THE OBJECTIONS THAT HE DID MAKE IN RELATION
TO OTHER INSTRUCTIONS GIVEN AND NOT GIVEN.  ON APPEAL TO THE SUPREME
COURT OF ILLINOIS, COUNSEL STILL FAILED TO CLAIM AS ERROR THAT WHICH
THIS COURT ON ITS OWN MOTION NOW FINDS VIOLATIVE OF THE CONSTITUTION. 
IT WAS NOT MENTIONED BY THE ILLINOIS SUPREME COURT IN ITS CAREFUL
OPINION DISPOSING OF OTHER CLAIMS AND IT WAS NOT INCLUDED IN THE
ELABORATE PETITION FOR REHEARING IN THAT COURT.  THUS AN OBJECTION, NOT
RAISED BY COUNSEL IN THE ILLINOIS COURTS, NOT MADE THE BASIS OF THE
PETITION FOR CERTIORARI HERE - NOT INCLUDED IN THE "QUESTIONS
PRESENTED," NOR IN THE "REASONS RELIED ON FOR THE ALLOWANCE OF THE
WRIT" - AND EXPLICITLY DISAVOWED AT THE BAR OF THIS COURT, IS USED TO
UPSET A CONVICTION WHICH HAS BEEN SUSTAINED BY THREE COURTS OF
ILLINOIS.    RELIANCE ON STROMBERG V. CALIFORNIA, 283 U.S. 359, FOR
WHAT IS DONE TODAY IS WHOLLY MISPLACED.  NEITHER EXPRESSLY NOR BY
IMPLICATION HAS THAT DECISION ANY BEARING UPON THE ISSUE WHICH THE
COURT'S OPINION IN THIS CASE RAISES, NAMELY, WHETHER IT IS OPEN FOR
THIS COURT TO REVERSE THE HIGHEST COURT OF A STATE ON A POINT WHICH WAS
NOT BROUGHT BEFORE THAT COURT, DID NOT ENTER INTO THE JUDGMENT RENDERED
BY THAT COURT, AND AT NO STAGE OF THE PROCEEDINGS IN THIS COURT WAS
INVOKED AS ERROR BY THE STATE COURT WHOSE REVERSAL IS HERE SOUGHT.  THE
STROMBERG CASE PRESENTED PRECISELY THE OPPOSITE SITUATION.  IN THAT
CASE THE CLAIM WHICH HERE PREVAILED WAS A GROUND OF UNCONSTITUTIONALITY
URGED BEFORE THE CALIFORNIA COURT; UPON ITS REJECTION BY THAT COURT IT
WAS MADE THE BASIS OF APPEAL TO THIS COURT; IT WAS HERE URGED AS THE
DECISIVE GROUND FOR THE REVERSAL OF THE CALIFORNIA JUDGMENT. 

THE STROMBERG CASE DEALT WITH A STATUTE WHICH PROSCRIBED CONDUCT IN A
THREEFOLD WAY.  THE INFORMATION UPON WHICH A VERDICT OF GUILTY WAS
SECURED WAS COUCHED IN THE THREEFOLD TERMS OF THE STATUTE, AND IN THAT
FORM SUBMITTED TO THE JURY.  A GENERAL VERDICT FOLLOWED.  IT WAS URGED
THROUGHOUT THE PROCEEDINGS, AND FINALLY AT THE BAR OF THIS COURT, THAT
ONE OF THE PROSCRIPTIONS OF THE STATUTE WAS INVALID UNDER THE
FOURTEENTH AMENDMENT. 

THAT VIEW WAS SUSTAINED.  ALL THAT THE CASE HOLDS IS THAT WHERE THE
VALIDITY OF A STATUTE IS SUCCESSFULLY ASSAILED AS TO ONE OF THREE
CLAUSES OF A STATUTE AND ALL THREE CLAUSES WERE SUBMITTED TO THE JURY,
THE GENERAL VERDICT HAS AN INFIRMITY BECAUSE IT CANNOT BE ASSUMED THAT
THE JURY CONVICTED ON THE VALID PORTIONS OF THE STATUTE AND NOT ON THE
INVALID.  THERE WAS NO QUESTION IN THAT CASE OF SEARCHING THE RECORD
FOR AN ALLEGED ERROR THAT AT NO TIME WAS URGED AGAINST THE STATE
JUDGMENT BROUGHT HERE FOR REVIEW. 

IN THE STROMBERG CASE AN ERROR THAT WAS PROPERLY URGED WAS
SUSTAINED.  IN THIS CASE A CLAIM THAT WAS NOT URGED BUT WAS DISAVOWED
IS TRANSMUTED INTO A CLAIM DENIED. 

ONLY THE UNINFORMED WILL DERIDE AS A MERELY TECHNICAL POINT OBJECTION
TO WHAT THE COURT IS DOING IN THIS CASE.  THE MATTER TOUCHES THE VERY
BASIS OF THIS COURT'S AUTHORITY IN REVIEWING THE JUDGMENTS OF STATE
COURTS.  WE HAVE NO AUTHORITY TO MEDDLE WITH SUCH A JUDGMENT UNLESS
SOME CLAIM UNDER THE CONSTITUTION OR THE LAWS OF THE UNITED STATES HAS
BEEN MADE BEFORE THE STATE COURT WHOSE JUDGMENT WE ARE REVIEWING AND
UNLESS THE CLAIM HAS BEEN DENIED BY THAT COURT.  FN1  HOW COULD THERE
HAVE BEEN A DENIAL OF A FEDERAL CLAIM BY THE ILLINOIS COURTS, I.E.,
THAT THE TRIAL JUDGE OFFENDED THE CONSTITUTION OF THE UNITED STATES IN
WHAT HE TOLD THE JURY, WHEN NO SUCH CLAIM WAS MADE?  THE RELATION OF
THE UNITED STATES AND THE COURTS OF THE UNITED STATES TO THE STATES AND
THE COURTS OF THE STATES IS A VERY DELICATE MATTER.  IT IS TOO DELICATE
TO PERMIT SILENCE WHEN A JUDGMENT OF A STATE COURT IS REVERSED IN
DISREGARD OF THE DUTY OF THIS COURT TO LEAVE UNTOUCHED AN ADJUDICATION
OF A STATE UNLESS THAT ADJUDICATION IS BASED UPON A CLAIM OF A FEDERAL
RIGHT WHICH THE STATE HAS HAD AN OPPORTUNITY TO MEET AND TO RECOGNIZE. 
IF SUCH A FEDERAL CLAIM WAS NEITHER BEFORE THE STATE COURT NOR
PRESENTED TO THIS COURT, THIS COURT UNWARRANTABLY STRAYS FROM ITS
PROVINCE IN LOOKING THROUGH THE RECORD TO FIND SOME FEDERAL CLAIM THAT
MIGHT HAVE BEEN BROUGHT TO THE ATTENTION OF THE STATE COURT AND, IF SO
BROUGHT, FRONTED, AND THAT MIGHT HAVE BEEN, BUT WAS NOT, URGED HERE. 
THIS IS A COURT OF REVIEW, NOT A TRIBUNAL UNBOUNDED BY RULES.  WE DO
NOT SIT LIKE A KADI UNDER A TREE DISPENSING JUSTICE ACCORDING TO
CONSIDERATIONS OF INDIVIDUAL EXPEDIENCY. 

FREEDOM OF SPEECH UNDOUBTEDLY MEANS FREEDOM TO EXPRESS VIEWS THAT
CHALLENGE DEEP-SEATED, SACRED BELIEFS AND TO UTTER SENTIMENTS THAT MAY
PROVOKE RESENTMENT.  BUT THOSE INDULGING IN SUCH STUFF AS THAT TO WHICH
THIS PROCEEDING GAVE RISE ARE HARDLY SO DESERVING AS TO LEAD THIS COURT
TO SINGLE THEM OUT AS BENEFICIARIES OF THE FIRST DEPARTURE FROM THE
RESTRICTIONS THAT BIND THIS COURT IN REVIEWING JUDGMENTS OF STATE
COURTS.  ESPECIALLY ODD IS IT TO BESTOW SUCH FAVOR NOT FOR THE SAKE OF
LIFE OR LIBERTY, BUT TO SAVE A SMALL AMOUNT OF PROPERTY - $100, THE
AMOUNT OF THE FINE IMPOSED UPON THE PETITIONER IN A PROCEEDING WHICH IS
CIVIL, NOT CRIMINAL, UNDER THE LAWS OF ILLINOIS, AND THUS SUBJECT ONLY
TO LIMITED REVIEW.  CITY OF CHICAGO V. TERMINIELLO, 400 ILL. 23, 29, 79
N.E.2D 39, 43.  THIS COURT HAS RECOGNIZED THAT FINES OF THIS NATURE ARE
NOT WITHIN PROVISIONS OF THE CONSTITUTION GOVERNING FEDERAL CRIMINAL
PROSECUTIONS.  SEE HEPNER V. UNITED STATES, 213 U.S. 103. 

THE IMPORTANCE OF FREEDOM OF SPEECH OF COURSE CANNOT BE MEASURED BY
DOLLARS AND CENTS.  A GREAT PRINCIPLE MAY BE AT STAKE, AS IN THE CASE
OF THE SHIP MONEY, THOUGH THE ISSUE ARISE OVER THE PAYMENT OF A FEW
SHILLINGS' TAX.  WERE THE COURT TO SUSTAIN THE CLAIM URGED THROUGHOUT
THESE PROCEEDINGS, IN ILLINOIS AND HERE, NAMELY, THAT A LAW IS
UNCONSTITUTIONAL WHEN IT FORBIDS TERMINIELLO'S HARANGUE IN THE
CIRCUMSTANCES OF ITS UTTERANCE, IT WOULD BE IMMATERIAL THAT ONLY $100
IS INVOLVED.  BUT TO INJECT AN ERROR INTO THE RECORD IN ORDER TO AVOID
THE ISSUE ON WHICH THE CASE WAS BROUGHT HERE - FOR CERTAINLY RELIEF
FROM THE PAYMENT OF A FINE OF $100 COULD NOT ALONE HAVE INDUCED THIS
COURT TO EXCOGITATE A DEFECT IN THE JUDGMENT WHICH COUNSEL THOUGHTFULLY
REJECTED AND WHICH THREE STATE COURTS DID NOT CONSIDER - HARDLY RAISES
THE OBJECTION TO THE DIGNITY OF SUCH A PRINCIPLE.  IF THE COURT
REFRAINED FROM TAKING PHRASES OUT OF THEIR ENVIRONMENT AND FINDING IN
THEM A SELF-GENERATED OBJECTION, IT COULD NOT BE DEEMED TO HAVE
APPROVED OF THEM EVEN AS ABSTRACT PROPOSITIONS. 

ON THE MERITS OF THE ISSUE REACHED BY THE COURT, I SHARE MR. JUSTICE
JACKSON'S VIEWS.  FOR I ASSUME THAT THE COURT DOES NOT MEAN TO REJECT,
EXCEPT MERELY FOR PURPOSES OF THIS CASE, THE BASIC PRINCIPLE THAT
GUIDES SCRUTINY OF A CHARGE ON APPEAL.  I ASSUME, THAT IS, THAT A
CHARGE IS NOT TO BE DEEMED A BIT OF ABSTRACTION IN A NON-EXISTING
WORLD; THE FUNCTION WHICH A CHARGE SERVES IS TO GIVE PRACTICAL GUIDANCE
TO A JURY IN PASSING ON THE CASE THAT WAS UNFOLDED BEFORE IT - THE
PARTICULAR CIRCUMSTANCES IN THEIR PARTICULAR SETTING. 

FN1  "OUR POWER OF REVIEW IN THIS CASE IS LIMITED NOT ONLY TO THE
QUESTION WHETHER A RIGHT GUARANTEED BY THE FEDERAL CONSTITUTION WAS
DENIED, MURDOCK V. CITY OF MEMPHIS, 20 WALL.  590; HAIRE V. RICE, 204
U.S. 291, 301; BUT TO THE PARTICULAR CLAIMS DULY MADE BELOW, AND
DENIED.  SEABOARD AIR LINE RY. V. DUVALL, 225 U.S. 477, 485-488.  WE
LACK HERE THE POWER OCCASIONALLY EXERCISED ON REVIEW OF JUDGMENTS OF
LOWER FEDERAL COURTS TO CORRECT IN CRIMINAL CASES VITAL ERRORS,
ALTHOUGH THE OBJECTION WAS NOT TAKEN IN THE TRIAL COURT.  WIBORG V.
UNITED STATES, 163 U.S. 632, 658-660; CLYATT V. UNITED STATES, 197 U.S.
207, 221-222.  THIS IS A WRIT OF ERROR TO A STATE COURT.  BECAUSE WE
MAY NOT ENQUIRE INTO THE ERRORS NOW ALLEGED, I CONCUR IN AFFIRMING THE
JUDGMENT OF THE STATE COURT."  CONCURRING OPINION OF MR. JUSTICE
BRANDEIS JOINED BY MR. JUSTICE HOLMES IN WHITNEY V. CALIFORNIA, 274
U.S. 357, 380. 

MR. JUSTICE JACKSON AND MR. JUSTICE BURTON JOIN THIS DISSENT. 

MR. JUSTICE JACKSON, DISSENTING. 

THE COURT REVERSES THIS CONVICTION BY REITERATING GENERALIZED
APPROBATIONS OF FREEDOM OF SPEECH WITH WHICH, IN THE ABSTRACT, NO ONE
WILL DISAGREE.  DOUBTS AS TO THEIR APPLICABILITY ARE LULLED BY
AVOIDANCE OF MORE THAN PASSING REFERENCE TO THE CIRCUMSTANCES OF
TERMINIELLO'S SPEECH AND JUDGING IT AS IF HE HAD SPOKEN TO PERSONS AS
DISPASSIONATE AS EMPTY BENCHES, OR LIKE A MODERN DEMOSTHENES PRACTICING
HIS PHILIPPICS ON A LONELY SEASHORE. 

BUT THE LOCAL COURT THAT TRIED TERMINIELLO WAS NOT INDULGING IN
THEORY.  IT WAS DEALING WITH A RIOT AND WITH A SPEECH THAT PROVOKED A
HOSTILE MOB AND INCITED A FRIENDLY ONE, AND THREATENED VIOLENCE BETWEEN
THE TWO.  WHEN THE TRIAL JUDGE INSTRUCTED THE JURY THAT IT MIGHT FIND
TERMINIELLO GUILTY OF INDUCING A BREACH OF THE PEACE IF HIS BEHAVIOR
STIRRED THE PUBLIC TO ANGER, INVITED DISPUTE, BROUGHT ABOUT UNREST,
CREATED A DISTURBANCE OR MOLESTED PEACE AND QUIET BY AROUSING ALARM, HE
WAS NOT SPEAKING OF THESE AS HARMLESS OR ABSTRACT CONDITIONS.  HE WAS
ADDRESSING HIS WORDS TO THE CONCRETE BEHAVIOR AND SPECIFIC CONSEQUENCES
DISCLOSED BY THE EVIDENCE.  HE WAS SAYING TO THE JURY, IN EFFECT, THAT
IF THIS PARTICULAR SPEECH ADDED FUEL TO THE SITUATION ALREADY SO
INFLAMED AS TO THREATEN TO GET BEYOND POLICE CONTROL, IT COULD BE
PUNISHED AS INDUCING A BREACH OF PEACE.  WHEN THE LIGHT OF THE EVIDENCE
NOT RECITED BY THE COURT IS THROWN UPON THE COURT'S OPINION, IT
DISCLOSES THAT UNDERNEATH A LITTLE ISSUE OF TERMINIELLO AND HIS HUNDRED
DOLLAR FINE LURK SOME OF THE MOST FAR-REACHING CONSTITUTIONAL QUESTIONS
THAT CAN CONFRONT A PEOPLE WHO VALUE BOTH LIBERTY AND ORDER.  THIS
COURT SEEMS TO REGARD THESE AS ENEMIES OF EACH OTHER AND TO BE OF THE
VIEW THAT WE MUST FOREGO ORDER TO ACHIEVE LIBERTY.  SO IT FIXES ITS
EYES ON A CONCEPTION OF FREEDOM OF SPEECH SO RIGID AS TO TOLERATE NO
CONCESSION TO SOCIETY'S NEED FOR PUBLIC ORDER. 

AN OLD PROVERB WARNS US TO TAKE HEED LEST WE "WALK INTO A WELL FROM
LOOKING AT THE STARS."  TO SHOW WHY I THINK THE COURT IS IN SOME DANGER
OF DOING JUST THAT, I MUST BRING THESE DELIBERATIONS DOWN TO EARTH BY A
LONG RECITAL OF FACTS. 

TERMINIELLO, ADVERTISED AS A CATHOLIC PRIEST, BUT REVEALED AT THE
TRIAL TO BE UNDER SUSPENSION BY HIS BISHOP, WAS BROUGHT TO CHICAGO FROM
BIRMINGHAM, ALABAMA, TO ADDRESS A GATHERING THAT ASSEMBLED IN RESPONSE
TO A CALL SIGNED BY GERALD L. K. SMITH, WHICH, AMONG OTHER THINGS,
SAID: 

"  ...  THE SAME PEOPLE WHO HATE FATHER COUGHLIN HATE FATHER
TERMINIELLO.  THEY HAVE PERSECUTED HIM, HOUNDED HIM, THREATENED HIM,
BUT HE HAS REMAINED UNAFFECTED BY THEIR ANTI-CHRISTIAN CAMPAIGN AGAINST
HIM.  YOU WILL HEAR ALL SORTS OF REPORTS CONCERNING FATHER
TERMINIELLO.  BUT REMEMBER THAT HE IS A PRIEST IN GOOD STANDING AND A
FEARLESS LOVER OF CHRIST AND AMERICA." 

THE JURY MAY HAVE CONSIDERED THAT THIS CALL ATTEMPTED TO CAPITALIZE
THE HATREDS THIS MAN HAD STIRRED AND FORESHADOWED, IF IT DID NOT INTEND
TO INVITE, THE KIND OF DEMONSTRATION THAT FOLLOWED. 

TERMINIELLO'S OWN TESTIMONY SHOWS THE CONDITIONS UNDER WHICH HE
SPOKE.  SO FAR AS MATERIAL IT FOLLOWS: 

"  ...  WE GOT THERE (THE MEETING PLACE) APPROXIMATELY FIFTEEN OR
TWENTY MINUTES PAST EIGHT.  THE CAR STOPPED AT THE FRONT ENTRANCE. 
THERE WAS A CROWD OF THREE OR FOUR HUNDRED CONGREGATED THERE SHOUTING
AND CURSING AND PICKETING.  ... 

"WHEN WE GOT THERE THE PICKETS WERE NOT MARCHING; THEY WERE BODY TO
BODY AND COVERED THE SIDEWALK COMPLETELY, SOME ON THE STEPS SO THAT WE
HAD TO FORM A FLYING WEDGE TO GET THROUGH.  POLICE ESCORTED US TO THE
BUILDING, AND I NOTICED FOUR OR FIVE OTHERS THERE. 

"THEY CALLED US 'GOD DAMNED FASCISTS, NAZIS, OUGHT TO HANG THE SO AND
SOS.'  WHEN I ENTERED THE BUILDING I HEARD THE HOWLS OF THE PEOPLE
OUTSIDE.  ...  THERE WERE FOUR OR FIVE PLAIN CLOTHES OFFICERS STANDING
AT THE ENTRANCE TO THE STAGE AND THREE OR FOUR AT THE ENTRANCE TO THE
BACK DOOR. 

"THE OFFICERS THREATENED THAT IF THEY BROKE THE DOOR AGAIN THEY WOULD
ARREST THEM AND EVERY TIME THEY OPENED THE DOOR A LITTLE TO LOOK OUT
SOMETHING WAS THROWN AT THE OFFICERS, INCLUDING ICE-PICKS AND ROCKS. 

"A NUMBER OF TIMES THE DOOR WAS BROKEN, WAS PARTLY BROKEN THROUGH. 
THERE WERE DOORS OPEN THIS WAY AND THEY PARTLY OPENED AND THE OFFICERS
LOOKED OUT TWO OR THREE TIMES AND EACH TIME ICE-PICKS, STONES AND
BOTTLES WERE THROWN AT THE POLICE AT THE DOOR.  I TOOK MY PLACE ON THE
STAGE, BEFORE THIS I WAS ABOUT TEN OR FIFTEEN MINUTES IN THE BODY OF
THE HALL. 

"I SAW A NUMBER OF WINDOWS BROKEN BY STONES OR MISSILES.  I SAW THE
BACK DOOR BEING FORCED OPEN, PUSHED OPEN. 

"THE FRONT DOOR WAS BROKEN PARTLY OPEN AFTER THE DOORS WERE CLOSED. 
THERE WERE ABOUT SEVEN PEOPLE SEATED ON THE STAGE.  SMITH OPENED THE
MEETING WITH PRAYER, THE PLEDGE OF ALLEGIANCE TO THE FLAG AND SINGING
OF AMERICA.  THERE WERE OTHER SPEAKERS WHO SPOKE BEFORE ME AND BEFORE I
SPOKE I HEARD THINGS HAPPENING IN THE HALL AND COMING FROM THE
OUTSIDE. 

"I SAW ROCKS BEING THROWN THROUGH WINDOWS AND THAT CONTINUED
THROUGHOUT AT LEAST THE FIRST HALF OF THE MEETING, PROBABLY LONGER, AND
AGAIN ATTEMPTS WERE MADE TO FORCE THE FRONT DOOR, RATHER THE FRONT DOOR
WAS FORCED PARTLY.  THE HOWLING CONTINUED ON THE OUTSIDE, CURSING COULD
BE HEARD AUDIBLY IN THE HALL AT TIMES.  POLICE WERE RUSHING IN AND OUT
OF THE FRONT DOOR PROTECTING THE FRONT DOOR, AND THERE WAS A GENERAL
COMMOTION, ALL KINDS OF NOISES AND VIOLENCE - ALL FROM THE OUTSIDE. 

"BETWEEN THE TIME THE FIRST SPEAKER SPOKE AND I SPOKE, STONES AND
BRICKS WERE THROWN IN ALL THE TIME.  I STARTED TO SPEAK ABOUT 35 OR 40
MINUTES AFTER THE MEETING STARTED, A LITTLE LATER THAN NINE O'CLOCK. 
...  " 

THE COURT BELOW, IN ADDITION TO THIS RECITAL, HEARD OTHER EVIDENCE,
THAT THE CROWD REACHED AN ESTIMATED NUMBER OF 1,500.  PICKET LINES
OBSTRUCTED AND INTERFERED WITH ACCESS TO THE BUILDING.  THE CROWD
CONSTITUTED "A SURGING, HOWLING MOB HURLING EPITHETS" AT THOSE WHO
WOULD ENTER AND "TRIED TO TEAR THEIR CLOTHES OFF."  ONE YOUNG WOMAN'S
COAT WAS TORN OFF AND SHE HAD TO BE ASSISTED INTO THE MEETING BY
POLICEMEN.  THOSE INSIDE THE HALL COULD HEAR THE LOUD NOISES AND HEAR
THOSE ON THE OUTSIDE YELL, "FASCISTS," "HITLERS" AND CURSE WORDS LIKE
"DAMN FASCISTS."  BRICKS WERE THROWN THROUGH THE WINDOWPANES BEFORE AND
DURING THE SPEAKING.  ABOUT 28 WINDOWS WERE BROKEN.  THE STREET WAS
BLACK WITH PEOPLE ON BOTH SIDES FOR AT LEAST A BLOCK EITHER WAY;
BOTTLES, STINK BOMBS AND BRICKBATS WERE THROWN.  POLICE WERE UNABLE TO
CONTROL THE MOB, WHICH KEPT BREAKING THE WINDOWS AT THE MEETING HALL,
DROWNING OUT THE SPEAKER'S VOICE AT TIMES AND BREAKING IN THROUGH THE
BACK DOOR OF THE AUDITORIUM.  ABOUT 17 OF THE GROUP OUTSIDE WERE
ARRESTED BY THE POLICE.    KNOWING OF THIS ENVIRONMENT, TERMINIELLO
MADE A LONG SPEECH, FROM THE STENOGRAPHIC RECORD OF WHICH I OMIT
RELATIVELY INNOCUOUS PASSAGES AND ADD EMPHASIS TO WHAT SEEMS ESPECIALLY
PROVOCATIVE: 

"FATHER TERMINIELLO:  NOW, I AM GOING TO WHISPER MY GREETINGS TO YOU,
FELLOW CHRISTIANS.  I WILL INTERPRET IT.  I SAID, 'FELLOW CHRISTIANS,'
AND I SUPPOSE THERE ARE SOME OF THE SCUM GOT IN BY MISTAKE, SO I WANT
TO TELL A STORY ABOUT THE SCUM: 

"  ...  AND NOTHING I COULD SAY TONIGHT COULD BEGIN TO EXPRESS THE
CONTEMPT I HAVE FOR THE SLIMY SCUM THAT GOT IN BY MISTAKE. 

"  ...  THE SUBJECT I WANT TO TALK TO YOU TONIGHT ABOUT IS THE
ATTEMPT THAT IS GOING ON RIGHT OUTSIDE THIS HALL TONIGHT, THE ATTEMPT
THAT IS GOING ON TO DESTROY AMERICA BY REVOLUTION.  ... 

"MY FRIENDS, IT IS NO LONGER TRUE THAT IT CAN'T HAPPEN HERE.  IT IS
HAPPENING HERE, AND IT ONLY DEPENDS UPON YOU, GOOD PEOPLE, WHO ARE HERE
TONIGHT, DEPENDS UPON ALL OF US TOGETHER, AS MR. SMITH SAID.  THE TIDE
IS CHANGING, AND IF YOU AND I TURN AND RUN FROM THAT TIDE, WE WILL ALL
BE DROWNED IN THIS TIDAL WAVE OF COMMUNISM WHICH IS GOING OVER THE
WORLD. 

"  ...  I AM NOT GOING TO TALK TO YOU ABOUT THE MENACE OF COMMUNISM,
WHICH IS ALREADY ACCOMPLISHED, IN RUSSIA, WHERE FROM EIGHT TO FIFTEEN
MILLION PEOPLE WERE MURDERED IN COLD BLOOD BY THEIR OWN COUNTRYMEN, AND
MILLIONS MORE THROUGH EASTERN EUROPE AT THE CLOSE OF THE WAR ARE BEING
MURDERED BY THESE MURDEROUS RUSSIANS, HURT, BEING RAPED AND SENT INTO
SLAVERY.  THAT IS WHAT THEY WANT FOR YOU, THAT HOWLING MOB OUTSIDE. 

"I KNOW I WAS TOLD ONE TIME THAT MY WINTER QUARTERS WERE READY FOR ME
IN SIBERIA.  I WAS TOLD THAT.  NOW, I AM TALKING ABOUT THE FIFTY-SEVEN
VARIETIES THAT WE HAVE IN AMERICA, AND WE HAVE FIFTY-SEVEN VARIETIES OF
PINKS AND REDS AND PASTEL SHADES IN THIS COUNTRY; AND ALL OF IT CAN BE
TRACED BACK TO THE TWELVE YEARS WE SPENT UNDER THE NEW DEAL, BECAUSE
THAT WAS THE BUILD-UP FOR WHAT IS GOING ON IN THE WORLD TODAY. 

     .         .         .         .         . 

"NOW, RUSSIA PROMISED US WE WOULD GA BACK TO THE OFFICIAL NEWSPAPER
OF RUSSIA.  PRIMARILY, IT WAS BACK ABOUT 1929.  THEY QUOTED THE WORDS
OF GEORGE E. DIMITROFF, WHO AT THAT TIME WAS THE EXECUTIVE SECRETARY OF
THE COMMUNIST INTERNATIONAL.  I ONLY QUOTE YOU THIS ONE PASSAGE.  I
COULD QUOTE THOUSANDS OF PARAGRAPHS FOR YOU.  LET ME QUOTE YOU:  'THE
WORLDWIDE NATURE OF OUR PROGRAM IS NOT MERE TALK, BUT AN ALL EMBRACING
BLOOD-SOAKED REALITY.'  THAT IS WHAT THEY WANT FOR US, A BLOOD-SOAKED
REALITY BUT IT WAS PROMISED TO US BY THE CRYSTAL GAZERS IN WASHINGTON;
AND YOU KNOW WHAT I MEAN BY THE 'CRYSTAL GAZERS', I PRESUME. 

"FIRST OF ALL, WE HAD QUEEN ELEANOR.  MR. SMITH SAID, 'QUEEN ELEANOR
IS NOW ONE OF THE WORLD'S COMMUNISTS.  SHE IS ONE WHO SAID THIS -
IMAGINE, COMING FROM THE SPOUSE OF THE FORMER PRESIDENT OF THE UNITED
STATES FOR TWELVE LONG YEARS - THIS IS WHAT SHE SAID:  'THE WAR IS BUT
A STEP IN THE REVOLUTION.  THE WAR IS BUT ONE STEP IN THE REVOLUTION,
AND WE KNOW WHO STARTED THE WAR.' 

"THEN WE HAVE HENRY ADOLPH WALLACE, THE SIXTY MILLION JOB MAGICIAN. 
YOU KNOW WE ONLY NEED FIFTY-FOUR MILLION JOBS IN AMERICA AND EVERYBODY
WOULD BE WORKING.  HE WANTS SIXTY MILLION JOBS, BECAUSE SOME OF THE
BUREAUCRATS WANT TWO JOBS APIECE.  HERE HE IS, WHAT HE SAYS ABOUT
REVOLUTION: 'WE ARE IN FOR A PROFOUND REVOLUTION.  THOSE OF US WHO
REALIZE THE INEVITABLENESS OF THE REVOLUTION, AND ARE ANXIOUS THAT IT
BE GRADUAL AND BLOODLESS INSTEAD OF SOMEWHAT BLOODY.  OF COURSE, IF
NECESSARY, WE WILL HAVE IT MORE BLOODY.' 

"AND THEN CHIEF JUSTICE STONE HAD THIS TO SAY:  'A WAY HAS BEEN FOUND
FOR THE EFFECTIVE SUPPRESSION OF SPEECHES AND PRESS AND RELIGION,
DESPITE CONSTITUTIONAL GUARANTEE,' - FROM THE CHIEF JUSTICE, FROM THE
CHIEF JUSTICE OF THE UNITED STATES. 

"NOW, MY FRIENDS, THEY ARE PLANNING ANOTHER RUSE; AND IF IT EVER
HAPPENS TO THIS COUNTRY, GOD HELP AMERICA.  THEY ARE GOING TO TRY TO
PUT INTO MR. EDGAR HOOVER'S POSITION A MAN BY THE NAME OF GEORGE
SWARZWALD.  I THINK EVEN THOSE WHO WERE UNEDUCATED ON SO-CALLED
SEDITION CHARGES, THAT THE MAJORITY OF THE INDIVIDUALS IN THIS
DEPARTMENT, THAT CHRIST-LIKE MEN AND WOMEN WHO REALIZE TODAY WHAT IS
GOING ON IN THIS COUNTRY, MEN WHO ARE IN THIS AUDIENCE TODAY, WHO WANT
TO KNOW THE NAMES OF THOSE PEOPLE, BEFORE THEY ARE OUTSIDE, THEY WANT
TO KNOW THE NAMES IF ANY.  DID YOU HEAR ANY TONIGHT THAT YOU
RECOGNIZE?  MOST OF THEM PROBABLY ARE IMPORTED.  THEY ARE IMPORTED FROM
RUSSIA, CERTAINLY.  IF YOU KNOW THE NAMES, PLEASE SEND THEM TO ME
IMMEDIATELY.  ... 

" ...  DIDN'T YOU EVER READ THE MORGENTHAU PLAN FOR THE STARVATION OF
LITTLE BABIES AND PREGNANT WOMEN IN GERMANY?  WHATEVER COULD A CHILD
THAT IS BORN HAVE TO DO WITH HITLER OR ANYONE ELSE AT THE BEGINNING OF
THE WAR?  WHY SHOULD EVERY CHILD IN GERMANY TODAY NOT LIVE TO BE MORE
THAN TWO OR THREE MONTHS OF AGE?  BECAUSE MORGENTHAU WANTS IT THAT WAY,
AND SO DID F.D.R.  ... YOU WILL KNOW WHO IS BEHIND IT WHEN I TELL YOU
THE STORY OF A DOCTOR IN AKRON, OHIO.  HE BOASTED TO A FRIEND OF MINE
WITHIN THE LAST FEW DAYS, WHILE HE WAS IN THE SERVICE OF THIS COUNTRY
AS A DOCTOR, HE AND OTHERS OF HIS KIND MADE IT A PRACTICE - NOW, THIS
WAS NOT ONLY ONE MAN - MADE IT A PRACTICE TO AMPUTATE THE LIMBS OF
EVERY GERMAN THEY CAME IN CONTACT WITH WHENEVER THEY COULD GET AWAY
WITH IT; SO, THAT THEY COULD NEVER CARRY A GUN.  IMAGINE MEN OF THAT
CALIBER, SWORN TO SERVE THIS BEAUTIFUL COUNTRY OF OURS, WHY SHOULD WE
TOLERATE THEM? 

"MY FRIENDS, THIS MOMENT SOMEONE REMINDED ME OF THE PLAN TO STERILIZE
THEM.  THE NURSES, THEY TELL ME ARE GOING TO INJECT DISEASES IN THEM,
SYPHILIS AND OTHER DISEASES IN EVERY ONE THAT CAME THERE ALL OF ONE
RACE, ALL NON-CHRISTIANS.  ... 

"NOW, WE ARE GOING TO GET THE THREATS OF THE PEOPLE OF ARGENTINE, THE
PEOPLE OF SPAIN.  WE HAVE NOW DECLARED, ACCORDING TO OUR OFFICIALS, TO
HAVE DECLARED FRANCO TO HAVE TAKEN THE PLACE OF HITLER.  FRANCO WAS THE
SAVIOR OF WHAT WAS LEFT OF EUROPE. 

"NOW, LET ME SAY, I AM GOING TO TALK ABOUT - I ALMOST SAID, ABOUT THE
JEWS.  OF COURSE, I WOULD NOT WANT TO SAY THAT.  HOWEVER, I AM GOING TO
TALK ABOUT SOME JEWS.  I HOPE THAT - I AM A CHRISTIAN MINISTER.  WE
MUST TAKE A CHRISTIAN ATTITUDE.  I DON'T WANT YOU TO GO FROM THIS HALL
WITH HATRED IN YOUR HEART FOR ANY PERSON, FOR NO PERSON.  ... 

"NOW, THIS DANGER WHICH WE FACE - LET US CALL THEM ZIONIST JEWS IF
YOU WILL, LET'S CALL THEM ATHEISTIC, COMMUNISTIC JEWISH OR ZIONIST
JEWS, THEN LET US NOT FEAR TO CONDEMN THEM.  YOU REMEMBER THE APOSTLES
WHEN THEY WENT INTO THE UPPER ROOM AFTER THE DEATH OF THE MASTER, THEY
WENT IN THERE, AFTER LOCKING THE DOORS; THEY CLOSED THE WINDOWS.  (AT
THIS TIME THERE WAS A VERY LOUD NOISE AS IF SOMETHING WAS BEING THROWN
INTO THE BUILDING.) 

"DON'T BE DISTURBED.  THAT HAPPENED, BY THE WAY, WHILE MR. GERALD
SMITH WAS SAYING 'OUR FATHER WHO ART IN HEAVEN;' (JUST THEN A ROCK WENT
THROUGH THE WINDOW.)  DO YOU WONDER THEY WERE PERSECUTED IN OTHER
COUNTRIES IN THE WORLD?  ... 

"YOU KNOW I HAVE ALWAYS MADE A STUDY OF THE PSYCHOLOGY, SOCIOLOGY OF
MOB REACTION.  IT IS EXEMPLIFIED OUT THERE.  REMEMBER THERE HAS TO BE A
LEADER TO THAT MOB.  HE IS NOT OUT THERE.  HE IS PROBABLY ACROSS THE
STREET, LOOKING OUT THE WINDOW.  THERE MUST BE CERTAIN THINGS, MONEY,
OTHER THINGS, IN ORDER TO HAVE SUCCESSFUL MOB ACTION; THERE MUST BE
RHYTHM.  THERE MUST BE SOME TO BEAT A CADENCE.  THOSE MOBS ARE
CHANTING; THAT IS THE CAVEMAN'S CHANT.  THEY WERE TRAINED TO DO IT.
THEY WERE TRAINED THIS AFTERNOON.  THEY ARE BEING LED; THERE WILL BE
VIOLENCE. 

"THAT IS WHY I SAY TO YOU, MEN, DON'T YOU DO IT.  WALK OUT OF HERE
DIGNIFIED.  THE POLICE WILL PROTECT YOU.  PUT THE WOMEN ON THE INSIDE,
WHERE THERE WILL BE NO HURT TO THEM.  JUST WALK; DON'T STOP AND ARGUE. 
...  THEY WANT TO PICKET OUR MEETINGS.  THEY DON'T WANT US TO PICKET
THEIR MEETINGS.  IT IS THE SAME KIND OF TOLERANCE, IF WE SAID THERE WAS
A BEDBUG IN BED, 'WE DON'T CARE FOR YOU,' OR IF WE LOOKED UNDER THE BED
AND FOUND A SNAKE AND SAID, 'I AM GOING TO BE TOLERANT AND LEAVE THE
SNAKE THERE.'  WE WILL NOT BE TOLERANT OF THAT MOB OUT THERE.  WE ARE
NOT GOING TO BE TOLERANT ANY LONGER. 

"WE ARE STRONG ENOUGH.  WE ARE NOT GOING TO BE TOLERANT OF THEIR
SMEARS ANY LONGER.  WE ARE GOING TO STAND UP AND DARE THEM TO SMEAR US.
... 

"SO, MY FRIENDS, SINCE WE SPENT MUCH TIME TONIGHT TRYING TO QUIET THE
HOWLING MOB, I AM GOING TO BRING MY THOUGHTS TO A CONCLUSION, AND THE
CONCLUSION IS THIS.  WE MUST ALL BE LIKE THE APOSTLES BEFORE THE COMING
OF THE HOLY GHOST.  WE MUST NOT LOCK OURSELVES IN AN UPPER ROOM FOR
FEAR OF THE JEWS.  I SPEAK OF THE COMMUNISTIC ZIONISTIC JEW, AND THOSE
ARE NOT AMERICAN JEWS.  WE DON'T WANT THEM HERE; WE WANT THEM TO GO
BACK WHERE THEY CAME FROM. 

     . .         .         .         . 

"MR. SMITH:  I WOULD LIKE TO ASK THAT MISS PURCELL WOULD PLEASE GO
BACK TO THE FRONT OF THE BUILDING AND CONTACT THE POLICE OFFICER IN
CHARGE OF THE DETAIL.  WE ARE GOING TO ADJOURN THIS MEETING IF AND WHEN
MISS PURCELL COMES BACK AND REPORTS TO ME THAT THE ONE IN CHARGE OF THE
DETAIL BELIEVES IT IS SAFE FOR US TO GO OUT ON THE STREET.  I AM SURE
IT IS.  SIT STILL.  WE ARE NOT GOING TO HAVE ANYBODY MOVE.  IF THERE
ARE ANY CHISELERS THAT WANT TO GO, WE ARE GOING TO TAKE UP AN OFFERING
FOR FATHER TERMINIELLO. 

"(THERE WAS FURTHER DISCUSSION TO STIMULATE THIS OFFERING WHICH WAS
NOT REPORTED.)" 

SUCH WAS THE SPEECH.  EVIDENCE SHOWED THAT IT STIRRED THE AUDIENCE
NOT ONLY TO CHEER AND APPLAUD BUT TO EXPRESSIONS OF IMMEDIATE ANGER,
UNREST AND ALARM.  ONE CALLED THE SPEAKER A "GOD DAMNED LIAR" AND WAS
TAKEN OUT BY THE POLICE.  ANOTHER SAID THAT "JEWS, NIGGERS AND
CATHOLICS WOULD HAVE TO BE GOTTEN RID OF."  ONE RESPONSE WAS, "YES, THE
JEWS ARE ALL KILLERS, MURDERERS.  IF WE DON'T KILL THEM FIRST, THEY
WILL KILL US."  THE ANTI-JEWISH STORIES ELICITED EXCLAMATIONS OF "OH." 
AND "ISN'T THAT TERRIBLE."  AND SHOUTS OF "YES, SEND THE JEWS BACK TO
RUSSIA," "KILL THE JEWS," "DIRTY KIKES," AND MUCH MORE OF UGLY TENOR. 
THIS IS THE SPECIFIC AND CONCRETE KIND OF ANGER, UNREST AND ALARM,
COUPLED WITH THAT OF THE MOB OUTSIDE, THAT THE TRIAL COURT CHARGED THE
JURY MIGHT FIND TO BE A BREACH OF PEACE INDUCED BY TERMINIELLO.  IT IS
DIFFICULT TO BELIEVE THAT THIS COURT IS SPEAKING OF THE SAME OCCASION,
BUT IT IS THE ONLY ONE INVOLVED IN THIS LITIGATION. 

TERMINIELLO, OF COURSE, DISCLAIMS BEING A FASCIST.  DOUBTLESS MANY OF
THE INDOOR AUDIENCE WERE NOT CONSCIOUSLY SUCH.  HIS SPEECH, HOWEVER,
FOLLOWED, WITH FIDELITY THAT IS MORE THAN COINCIDENTAL, THE PATTERN OF
EUROPEAN FASCIST LEADERS. 

THE STREET MOB, ON THE OTHER HAND, INCLUDED SOME WHO DENY BEING
COMMUNISTS, BUT TERMINIELLO TESTIFIED AND OFFERED TO PROVE THAT THE
DEMONSTRATION WAS COMMUNIST-ORGANIZED AND COMMUNIST-LED.  HE OFFERED
LITERATURE OF LEFT-WING ORGANIZATIONS CALLING MEMBERS TO MEET AND
"MOBILIZE" FOR INSTRUCTION AS PICKETS AND EXHORTING FOLLOWERS:  "ALL
OUT TO FIGHT FASCIST SMITH." 

AS THIS CASE DECLARES A NATION-WIDE RULE THAT DISABLES LOCAL AND
STATE AUTHORITIES FROM PUNISHING CONDUCT WHICH PRODUCES CONFLICTS OF
THIS KIND, IT IS UNREALISTIC NOT TO TAKE ACCOUNT OF THE NATURE, METHODS
AND OBJECTIVES OF THE FORCES INVOLVED.  THIS WAS NOT AN ISOLATED,
SPONTANEOUS AND UNINTENDED COLLISION OF POLITICAL, RACIAL OR
IDEOLOGICAL ADVERSARIES.  IT WAS A LOCAL MANIFESTATION OF A WORLD-WIDE
AND STANDING CONFLICT BETWEEN TWO ORGANIZED GROUPS OF REVOLUTIONARY
FANATICS, EACH OF WHICH HAS IMPORTED TO THIS COUNTRY THE STRONG-ARM
TECHNIQUE DEVELOPED IN THE STRUGGLE BY WHICH THEIR KIND HAS DEVASTATED
EUROPE.  INCREASINGLY, AMERICAN CITIES HAVE TO COPE WITH IT.  ONE
FACTION ORGANIZES A MASS MEETING, THE OTHER ORGANIZES PICKETS TO HARASS
IT; EACH ORGANIZES SQUADS TO COUNTERACT THE OTHER'S PICKETS; PARADE IS
MET WITH COUNTERPARADE.  EACH OF THESE MASS DEMONSTRATIONS HAS THE
POTENTIALITY, AND MORE THAN A FEW THE PURPOSE, OF DISORDER AND
VIOLENCE.  THIS TECHNIQUE APPEALS NOT TO REASON BUT TO FEARS AND MOB
SPIRIT; EACH IS A SHOW OF FORCE DESIGNED TO BULLY ADVERSARIES AND TO
OVERAWE THE INDIFFERENT.  WE NEED NOT RESORT TO SPECULATION AS TO THE
PURPOSES FOR WHICH THESE TACTICS ARE CALCULATED NOR AS TO THEIR
CONSEQUENCES.  RECENT EUROPEAN HISTORY DEMONSTRATES BOTH. 

HITLER SUMMED UP THE STRATEGY OF THE MASS DEMONSTRATION AS USED BY
BOTH FASCISM AND COMMUNISM: "WE SHOULD NOT WORK IN SECRET CONVENTICLES,
BUT IN MIGHTY MASS DEMONSTRATIONS, AND IT IS NOT BY DAGGER AND POISON
OR PISTOL THAT THE ROAD CAN BE CLEARED FOR THE MOVEMENT BUT BY THE
CONQUEST OF THE STREETS.  WE MUST TEACH THE MARXISTS THAT THE FUTURE
MASTER OF THE STREETS IS NATIONAL SOCIALISM, JUST AS IT WILL SOME DAY
BE THE MASTER OF THE STATE."  1 NAZI CONSPIRACY AND AGGRESSION (GPO,
1946) 204, 2 ID. 140, DOCS.  2760-PS, 404-PS, FROM "MEIN KAMPF."  FIRST
LAUGHED AT AS AN EXTRAVAGANT FIGURE OF SPEECH, THE BATTLE FOR THE
STREETS BECAME A TRAGIC REALITY WHEN AN ORGANIZED STURMABTEILUNG BEGAN
TO GIVE PRACTICAL EFFECT TO ITS SLOGAN THAT "POSSESSION OF THE STREETS
IS THE KEY TO POWER IN THE STATE."  IBID., ALSO DOC. 2168-PS.    THE
PRESENT OBSTACLE TO MASTERY OF THE STREETS BY EITHER RADICAL OR
REACTIONARY MOB MOVEMENTS IS NOT THE OPPOSING MINORITY.  IT IS THE
AUTHORITY OF LOCAL GOVERNMENTS WHICH REPRESENT THE FREE CHOICE OF
DEMOCRATIC AND LAW-ABIDING ELEMENTS OF ALL SHADES OF OPINION, BUT WHO,
WHATEVER THEIR DIFFERENCES, SUBMIT THEM TO FREE ELECTIONS WHICH
REGISTER THE RESULTS OF THEIR FREE DISCUSSION.  THE FASCIST AND
COMMUNIST GROUPS, ON THE CONTRARY, RESORT TO THESE TERROR TACTICS TO
CONFUSE, BULLY AND DISCREDIT THOSE FREELY CHOSEN GOVERNMENTS.  VIOLENT
AND NOISY SHOWS OF STRENGTH DISCOURAGE PARTICIPATION OF MODERATES IN
DISCUSSIONS SO FRAUGHT WITH VIOLENCE, AND REAL DISCUSSION DRIES UP AND
DISAPPEARS.  AND PEOPLE LOSE FAITH IN THE DEMOCRATIC PROCESS WHEN THEY
SEE PUBLIC AUTHORITY FLOUTED AND IMPOTENT AND BEGIN TO THINK THE TIME
HAS COME WHEN THEY MUST CHOOSE SIDES IN A FALSE AND TERRIBLE DILEMMA
SUCH AS WAS POSED AS BEING AT HAND BY THE CALL FOR THE TERMINIELLO
MEETING:  "CHRISTIAN NATIONALISM OR WORLD COMMUNISM - WHICH?" 

THIS DRIVE BY TOTALITARIAN GROUPS TO UNDERMINE THE PRESTIGE AND
EFFECTIVENESS OF LOCAL DEMOCRATIC GOVERNMENTS IS ADVANCED WHENEVER
EITHER OF THEM CAN WIN FROM THIS COURT A RULING WHICH PARALYZES THE
POWER OF THESE OFFICIALS.  THIS IS SUCH A CASE.  THE GROUP OF WHICH
TERMINIELLO IS A PART CLAIMS THAT HIS BEHAVIOR, BECAUSE IT INVOLVED A
SPEECH, IS ABOVE THE REACH OF LOCAL AUTHORITIES.  IF THE MILD ACTION
THOSE AUTHORITIES HAVE TAKEN IS FORBIDDEN, IT IS PLAIN THAT HEREAFTER
THERE IS NOTHING EFFECTIVE LEFT THAT THEY CAN DO.  IF THEY CAN DO
NOTHING AS TO HIM, THEY ARE EQUALLY POWERLESS AS TO RIVAL TOTALITARIAN
GROUPS.  TERMINIELLO'S VICTORY TODAY CERTAINLY FULFILLS THE MOST
EXTRAVAGANT HOPES OF BOTH RIGHT AND LEFT TOTALITARIAN GROUPS, WHO WANT
NOTHING SO MUCH AS TO PARALYZE AND DISCREDIT THE ONLY DEMOCRATIC
AUTHORITY THAT CAN CURB THEM IN THEIR BATTLE FOR THE STREETS. 

I AM UNABLE TO SEE THAT THE LOCAL AUTHORITIES HAVE TRANSGRESSED THE
FEDERAL CONSTITUTION.  ILLINOIS IMPOSED NO PRIOR CENSORSHIP OR
SUPPRESSION UPON TERMINIELLO.  ON THE CONTRARY, ITS SUFFERANCE AND
PROTECTION WAS ALL THAT ENABLED HIM TO SPEAK.  IT DOES NOT APPEAR THAT
THE MOTIVE IN PUNISHING HIM IS TO SILENCE THE IDEOLOGY HE EXPRESSED AS
OFFENSIVE TO THE STATE'S POLICY OR AS UNTRUE, OR HAS ANY PURPOSE OF
CONTROLLING HIS THOUGHT OR ITS PEACEFUL COMMUNICATION TO OTHERS.  THERE
IS NO CLAIM THAT THE PROCEEDINGS AGAINST TERMINIELLO ARE DESIGNED TO
DISCRIMINATE AGAINST HIM OR THE FACTION HE REPRESENTS OR THE IDEAS THAT
HE BESPEAKS.  THERE IS NO INDICATION THAT THE CHARGE AGAINST HIM IS A
MERE PRETEXT TO GIVE THE SEMBLANCE OF LEGALITY TO A COVERT EFFORT TO
SILENCE HIM OR TO PREVENT HIS FOLLOWERS OR THE PUBLIC FROM HEARING ANY
TRUTH THAT IS IN HIM. 

A TRIAL COURT AND JURY HAS FOUND ONLY THAT IN THE CONTEXT OF VIOLENCE
AND DISORDER IN WHICH IT WAS MADE, THIS SPEECH WAS A PROVOCATION TO
IMMEDIATE BREACH OF THE PEACE AND THEREFORE CANNOT CLAIM CONSTITUTIONAL
IMMUNITY FROM PUNISHMENT.  UNDER THE CONSTITUTION AS IT HAS BEEN
UNDERSTOOD AND APPLIED, AT LEAST UNTIL MOST RECENTLY, THE STATE WAS
WITHIN ITS POWERS IN TAKING THIS ACTION. 

RIOTING IS A SUBSTANTIVE EVIL, WHICH I TAKE IT NO ONE WILL DENY THAT
THE STATE AND THE CITY HAVE THE RIGHT AND THE DUTY TO PREVENT AND
PUNISH.  WHERE AN OFFENSE IS INDUCED BY SPEECH, THE COURT HAS LAID DOWN
AND OFTEN REITERATED A TEST OF THE POWER OF THE AUTHORITIES TO DEAL
WITH THE SPEAKING AS ALSO AN OFFENSE.  "THE QUESTION IN EVERY CASE IS
WHETHER THE WORDS USED ARE USED IN SUCH CIRCUMSTANCES AND ARE OF SUCH A
NATURE AS TO CREATE A CLEAR AND PRESENT DANGER THAT THEY WILL BRING
ABOUT THE SUBSTANTIVE EVILS THAT CONGRESS (OR THE STATE OR CITY) HAS A
RIGHT TO PREVENT."  MR. JUSTICE HOLMES IN SCHENCK V. UNITED STATES, 249
U.S. 47, 52.  NO ONE VENTURES TO CONTEND THAT THE STATE ON THE BASIS OF
THIS TEST, FOR WHATEVER IT MAY BE WORTH, WAS NOT JUSTIFIED IN PUNISHING
TERMINIELLO.  IN THIS CASE THE EVIDENCE PROVES BEYOND DISPUTE THAT
DANGER OF RIOTING AND VIOLENCE IN RESPONSE TO THE SPEECH WAS CLEAR,
PRESENT AND IMMEDIATE.  IF THIS COURT HAS NOT SILENTLY ABANDONED THIS
LONGSTANDING TEST AND SUBSTITUTED FOR THE PURPOSES OF THIS CASE AN
UNEXPRESSED BUT MORE STRINGENT TEST, THE ACTION OF THE STATE WOULD HAVE
TO BE SUSTAINED. 

ONLY RECENTLY THIS COURT HELD THAT A STATE COULD PUNISH AS A BREACH
OF THE PEACE USE OF EPITHETS SUCH AS "DAMNED RACKETEER" AND "DAMNED
FASCIST," ADDRESSED TO ONLY ONE PERSON, AN OFFICIAL, BECAUSE LIKELY TO
PROVOKE THE AVERAGE PERSON TO RETALIATION.  BUT THESE ARE MILD IN
COMPARISON TO THE EPITHETS "SLIMY SCUM," "SNAKES," "BEDBUGS," AND THE
LIKE, WHICH TERMINIELLO HURLED AT AN ALREADY INFLAMED MOB OF HIS
ADVERSARIES.  MR. JUSTICE MURPHY, WRITING FOR A UNANIMOUS COURT IN
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571-572, SAID: 

"THERE ARE CERTAIN WELL-DEFINED AND NARROWLY LIMITED CLASSES OF
SPEECH, THE PREVENTION AND PUNISHMENT OF WHICH HAVE NEVER BEEN THOUGHT
TO RAISE ANY CONSTITUTIONAL PROBLEM.  THESE INCLUDE THE LEWD AND
OBSCENE, THE PROFANE, THE LIBELOUS, AND THE INSULTING OR 'FIGHTING'
WORDS - THOSE WHICH BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO
INCITE AN IMMEDIATE BREACH OF THE PEACE.  IT HAS BEEN WELL OBSERVED
THAT SUCH UTTERANCES ARE NO ESSENTIAL PART OF ANY EXPOSITION OF IDEAS,
AND ARE OF SUCH SLIGHT SOCIAL VALUE AS A STEP TO TRUTH THAT ANY BENEFIT
THAT MAY BE DERIVED FROM THEM IS CLEARLY OUTWEIGHED BY THE SOCIAL
INTEREST IN ORDER AND MORALITY.  'RESORT TO EPITHETS OR PERSONAL ABUSE
IS NOT IN ANY PROPER SENSE COMMUNICATION OF INFORMATION OR OPINION
SAFEGUARDED BY THE CONSTITUTION, AND ITS PUNISHMENT AS A CRIMINAL ACT
WOULD RAISE NO QUESTION UNDER THAT INSTRUMENT.'  CANTWELL V.
CONNECTICUT, 310 U.S. 296, 309-310." 

IN THE LATTER CASE MR. JUSTICE ROBERTS FOR A UNANIMOUS COURT ALSO
SAID: 

"THE OFFENSE KNOWN AS BREACH OF THE PEACE EMBRACES A GREAT VARIETY OF
CONDUCT DESTROYING OR MENACING PUBLIC ORDER AND TRANQUILITY.  IT
INCLUDES NOT ONLY VIOLENT ACTS BUT ACTS AND WORDS LIKELY TO PRODUCE
VIOLENCE IN OTHERS.  NO ONE WOULD HAVE THE HARDIHOOD TO SUGGEST THAT
THE PRINCIPLE OF FREEDOM OF SPEECH SANCTIONS INCITEMENT TO RIOT OR THAT
RELIGIOUS LIBERTY CONNOTES THE PRIVILEGE TO EXHORT OTHERS TO PHYSICAL
ATTACK UPON THOSE BELONGING TO ANOTHER SECT.  WHEN CLEAR AND PRESENT
DANGER OF RIOT, DISORDER, INTERFERENCE WITH TRAFFIC UPON THE PUBLIC
STREETS, OR OTHER IMMEDIATE THREAT TO PUBLIC SAFETY, PEACE, OR ORDER,
APPEARS, THE POWER OF THE STATE TO PREVENT OR PUNISH IS OBVIOUS."  310
U.S. 296, 308. 

HOW THIS PRESENT DECISION, DENYING STATE POWER TO PUNISH CIVILLY ONE
WHO PRECIPITATED A PUBLIC RIOT INVOLVING HUNDREDS OF FANATIC FIGHTERS
IN A MOST VIOLENT MELEE, CAN BE SQUARED WITH THOSE UNANIMOUS STATEMENTS
OF LAW, IS INCOMPREHENSIBLE TO ME.  AND THE COURT RECENTLY CITED THESE
TWO STATEMENTS AS INDICATING THAT "THE ESSENTIAL RIGHTS OF FIRST
AMENDMENT IN SOME INSTANCES ARE SUBJECT TO THE ELEMENTAL NEED FOR ORDER
WITHOUT WHICH THE GUARANTEES OF CIVIL RIGHTS TO OTHERS WOULD BE A
MOCKERY."  UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75, 95. 

HOWEVER, THESE WHOLESOME PRINCIPLES ARE ABANDONED TODAY AND IN THEIR
PLACE IS SUBSTITUTED A DOGMA OF ABSOLUTE FREEDOM FOR IRRESPONSIBLE AND
PROVOCATIVE UTTERANCE WHICH ALMOST COMPLETELY STERILIZES THE POWER OF
LOCAL AUTHORITIES TO KEEP THE PEACE AS AGAINST THIS KIND OF TACTICS. 

BEFORE GIVING THE FIRST AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION
THIS EFFECT, WE SHOULD RECALL THAT OUR APPLICATION OF THE FIRST
AMENDMENT TO ILLINOIS RESTS ENTIRELY ON AUTHORITY WHICH THIS COURT HAS
VOTED TO ITSELF.  THE RELEVANT PARTS OF THE FIRST AMENDMENT, WITH
EMPHASIS SUPPLIED, READS:  "CONGRESS SHALL MAKE NO LAW  ...  ABRIDGING
THE FREEDOM OF SPEECH."  THIS RESTRAINS NO AUTHORITY EXCEPT CONGRESS. 
READ AS LITERALLY AS SOME WOULD DO, IT RESTRAINS CONGRESS IN TERMS SO
ABSOLUTE THAT NO LEGISLATION WOULD BE VALID IF IT TOUCHED FREE SPEECH,
NO MATTER HOW OBSCENE, TREASONABLE, DEFAMATORY, INCITING OR PROVOKING. 
IF IT SEEMS STRANGE THAT NO EXPRESS QUALIFICATIONS WERE INSERTED IN THE
AMENDMENT, THE ANSWER MAY BE THAT LIMITATIONS WERE THOUGHT TO BE
IMPLICIT IN THE DEFINITION OF "FREEDOM OF SPEECH" AS THEN UNDERSTOOD. 
OR IT MAY HAVE BEEN THOUGHT UNNECESSARY TO DELEGATE TO CONGRESS ANY
POWER OVER ABUSES OF FREE SPEECH.  THE FEDERAL GOVERNMENT WAS THEN A
NEW AND EXPERIMENTAL AUTHORITY, REMOTE FROM THE PEOPLE, AND IT WAS
SUPPOSED TO DEAL WITH A LIMITED CLASS OF NATIONAL PROBLEMS.  INASMUCH
AS ANY BREACHES OF PEACE FROM ABUSE OF FREE SPEECH TRADITIONALLY WERE
PUNISHABLE BY STATE GOVERNMENTS, IT WAS NEEDLESS TO RESERVE THAT POWER
IN A PROVISION DRAFTED TO EXCLUDE ONLY CONGRESS FROM SUCH A FIELD OF
LAW-MAKING. 

THE FOURTEENTH AMENDMENT FORBADE STATES TO DENY THE CITIZEN "DUE
PROCESS OF LAW."  BUT ITS TERMS GAVE NO NOTICE TO THE PEOPLE THAT ITS
ADOPTION WOULD STRIP THEIR LOCAL GOVERNMENTS OF POWER TO DEAL WITH SUCH
PROBLEMS OF LOCAL PEACE AND ORDER AS WE HAVE HERE.  NOR WAS IT HINTED
BY THIS COURT FOR OVER HALF A CENTURY THAT THE AMENDMENT MIGHT HAVE ANY
SUCH EFFECT.  IN 1922, WITH CONCURRENCE OF THE MOST LIBERTY-ALERT
JUSTICES OF ALL TIMES - HOLMES AND BRANDEIS - THIS COURT DECLARED
FLATLY THAT THE CONSTITUTION DOES NOT LIMIT THE POWER OF THE STATE OVER
FREE SPEECH.  PRUDENTIAL INSURANCE CO. V. CHEEK, 259 U.S. 530, 543.  IN
LATER YEARS THE COURT SHIFTED ITS DOGMA AND DECREED THAT THE
CONSTITUTION DOES THIS VERY THING AND THAT STATE POWER IS BOUND BY THE
SAME LIMITATION AS CONGRESS.  GITLOW V. NEW YORK, 268 U.S. 652.  I HAVE
NO QUARREL WITH THIS HISTORY.  SEE BOARD OF EDUCATION V. BARNETTE, 319
U.S. 624.  I RECITE THE METHOD BY WHICH THE RIGHT TO LIMIT THE STATE
HAS BEEN DERIVED ONLY FROM THIS COURT'S OWN ASSUMPTION OF THE POWER,
WITH NEVER A SUBMISSION OF LEGISLATION OR AMENDMENT INTO WHICH THE
PEOPLE COULD WRITE ANY QUALIFICATION TO PREVENT ABUSE OF THIS LIBERTY,
AS BEARING UPON THE RESTRAINT I CONSIDER AS BECOMING IN EXERCISE OF
SELFGIVEN AND UNAPPEALABLE POWER. 

IT IS SIGNIFICANT THAT PROVISIONS ADOPTED BY THE PEOPLE WITH
AWARENESS THAT THEY APPLIED TO THEIR OWN STATES HAVE UNIVERSALLY
CONTAINED QUALIFYING TERMS.  THE CONSTITUTION OF ILLINOIS IS
REPRESENTATIVE OF THE PROVISIONS PUT IN NEARLY ALL STATE CONSTITUTIONS
AND READS (ART. II, SEC. 4):  "EVERY PERSON MAY FREELY SPEAK, WRITE AND
PUBLISH ON ALL SUBJECTS, BEING RESPONSIBLE FOR THE ABUSE OF THAT
LIBERTY."  THAT IS WHAT I THINK IS MEANT BY THE CRYPTIC PHRASE "FREEDOM
OF SPEECH," AS USED IN THE FEDERAL COMPACT, AND THAT IS THE RULE I
THINK WE SHOULD APPLY TO THE STATES. 

THIS ABSENCE FROM THE CONSTITUTION OF ANY EXPRESSED POWER TO DEAL
WITH ABUSE OF FREEDOM OF SPEECH HAS ENABLED THE COURT TO SOAR ALOOF
FROM ANY CONSIDERATION OF THE ABUSES WHICH CREATE PROBLEMS FOR THE
STATES AND TO INDULGE IN DENIALS OF LOCAL AUTHORITY, SOME OF WHICH SEEM
TO ME IMPROVIDENT IN THE LIGHT OF FUNCTIONS WHICH LOCAL GOVERNMENTS
MUST BE RELIED ON TO PERFORM FOR OUR FREE SOCIETY.  QUITE APART FROM
ANY OTHER MERITS OR DEFECTS, RECENT DECISIONS HAVE ALMOST COMPLETELY
IMMUNIZED THIS BATTLE FOR THE STREETS FROM ANY FORM OF CONTROL. 

STREETS AND PARKS MAINTAINED BY THE PUBLIC CANNOT LEGALLY BE DENIED
TO GROUPS "FOR COMMUNICATION OF IDEAS."  HAGUE V. C.I.O., 307 U.S. 496;
JAMISON V. TEXAS, 318 U.S. 413.  CITIES MAY NOT PROTECT THEIR STREETS
FROM ACTIVITIES WHICH THE LAW HAS ALWAYS REGARDED SUBJECT TO CONTROL,
AS NUISANCES.  LOVELL V. GRIFFIN, 303 U.S. 444; SCHNEIDER V. STATE, 308
U.S. 147.  CITIES MAY NOT PROTECT THE STREETS OR EVEN HOMES OF THEIR
INHABITANTS FROM THE AGGRESSIONS OF ORGANIZED BANDS OPERATING IN LARGE
NUMBERS.  DOUGLAS V. JEANNETTE, 319 U.S. 157.  AS IN THIS CASE, THE
FACTS ARE SET FORTH FULLY ONLY IN THE DISSENT, P. 166.  SEE ALSO MARTIN
V. STRUTHERS, 319 U.S. 141.  NEITHER A PRIVATE PARTY NOR A PUBLIC
AUTHORITY CAN INVOKE OTHERWISE VALID STATE LAWS AGAINST TRESPASS TO
EXCLUDE FROM THEIR PROPERTY GROUPS BENT ON DISSEMINATING PROPAGANDA. 
MARSH V. ALABAMA, 326 U.S. 501; TUCKER V. TEXAS, 326 U.S. 517. 
PICKETING IS LARGELY IMMUNIZED FROM CONTROL ON THE GROUND THAT IT IS
FREE SPEECH, THORNHILL V. ALABAMA, 310 U.S. 88, AND POLICE MAY NOT
REGULATE SOUND TRUCKS AND LOUD-SPEAKERS, SAIA V. NEW YORK, 334 U.S.
558, THOUGH THE COURT FINDS THEM AN EVIL THAT MAY BE PROHIBITED
ALTOGETHER.  KOVACS V. COOPER, 336 U.S. 77.  AND ONE-THIRD OF THE COURT
HAS GONE FURTHER AND DECLARED THAT A POSITION "THAT THE STATE MAY
PREVENT ANY CONDUCT WHICH INDUCES PEOPLE TO VIOLATE THE LAW, OR ANY
ADVOCACY OF UNLAWFUL ACTIVITY, CANNOT BE SQUARED WITH THE FIRST
AMENDMENT  ...  " AND IT IS ONLY WE WHO CAN DECIDE WHEN THE LIMIT IS
PASSED.  MUSSER V. UTAH, 333 U.S. 95, 102.  WHATEVER THE MERITS OF ANY
ONE OF THESE DECISIONS IN ISOLATION, AND THERE WERE SOUND REASONS FOR
SOME OF THEM, IT CANNOT BE DENIED THAT THEIR CUMULATIVE EFFECT HAS BEEN
A SHARP HANDICAP ON MUNICIPAL CONTROL OF THE STREETS AND A DRAMATIC
ENCOURAGEMENT OF THOSE WHO WOULD USE THEM IN A BATTLE OF IDEOLOGIES. 

I DO NOT THINK WE SHOULD CARRY THIS HANDICAP FURTHER, AS WE DO TODAY,
BUT SHOULD ADHERE TO THE PRINCIPLES HERETOFORE ANNOUNCED TO SAFEGUARD
OUR LIBERTIES AGAINST ABUSE AS WELL AS AGAINST INVASION.  IT SHOULD NOT
BE NECESSARY TO RECALL THESE ELEMENTARY PRINCIPLES, BUT IT HAS BEEN A
LONG TIME SINCE SOME OF THEM WERE EVEN MENTIONED IN THIS COURT'S
WRITING ON THE SUBJECT AND RESULTS INDICATE THEY MAY HAVE BEEN
OVERLOOKED. 

I BEGIN WITH THE OFT-FORGOTTEN PRINCIPLE WHICH THIS CASE
DEMONSTRATES, THAT FREEDOM OF SPEECH EXISTS ONLY UNDER LAW AND NOT
INDEPENDENTLY OF IT.  WHAT WOULD TERMINIELLO'S THEORETICAL FREEDOM OF
SPEECH HAVE AMOUNTED TO HAD HE NOT BEEN GIVEN ACTIVE AID BY THE
OFFICERS OF THE LAW?  HE COULD REACH THE HALL ONLY WITH THEIR HELP,
COULD TALK ONLY BECAUSE THEY RESTRAINED THE MOB, AND COULD MAKE HIS
GETAWAY ONLY UNDER THEIR PROTECTION.  WE WOULD DO WELL TO RECALL THE
WORDS OF CHIEF JUSTICE HUGHES IN COX V. NEW HAMPSHIRE, 312 U.S. 569,
574:  "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.  ...  "    THIS CASE DEMONSTRATES ALSO THAT THIS COURT'S
SERVICE TO FREE SPEECH IS ESSENTIALLY NEGATIVE AND CAN CONSIST ONLY OF
REVIEWING ACTIONS BY LOCAL MAGISTRATES.  BUT IF FREE SPEECH IS TO BE A
PRACTICAL REALITY, AFFIRMATIVE AND IMMEDIATE PROTECTION IS REQUIRED;
AND IT CAN COME ONLY FROM NONJUDICIAL SOURCES.  IT DEPENDS ON LOCAL
POLICE, MAINTAINED BY LAW-ABIDING TAXPAYERS, AND WHO, REGARDLESS OF
THEIR OWN FEELINGS, RISK THEMSELVES TO MAINTAIN SUPREMACY OF LAW. 
TERMINIELLO'S THEORETICAL RIGHT TO SPEAK FREE FROM INTERFERENCE WOULD
HAVE NO REALITY IF CHICAGO SHOULD WITHDRAW ITS OFFICERS TO SOME OTHER
OTHER WAY WHEN THE CROWD THREATENS TERMINIELLO.  CAN SOCIETY BE
EXPECTED TO KEEP THESE MEN AT TERMINIELLO'S SERVICE IF IT HAS NOTHING
TO SAY OF HIS BEHAVIOR WHICH MAY FORCE THEM INTO DANGEROUS ACTION? 

NO ONE WILL DISAGREE THAT THE FUNDAMENTAL, PERMANENT AND OVERRIDING
POLICY OF POLICE AND COURTS SHOULD BE TO PERMIT AND ENCOURAGE UTMOST
FREEDOM OF UTTERANCE.  IT IS THE LEGAL RIGHT OF ANY AMERICAN CITIZEN TO
ADVOCATE PEACEFUL ADOPTION OF FASCISM OR COMMUNISM, SOCIALISM OR
CAPITALISM.  HE MAY GO FAR IN EXPRESSING SENTIMENTS WHETHER PRO-SEMITIC
OR ANTI-SEMITIC, PRO-NEGRO OR ANTI-NEGRO, PRO-CATHOLIC OR ANTI
CATHOLIC.  HE IS LEGALLY FREE TO ARGUE FOR SOME ANTI-AMERICAN SYSTEM OF
GOVERNMENT TO SUPERSEDE BY CONSTITUTIONAL METHODS THE ONE WE HAVE.  IT
IS OUR PHILOSOPHY THAT THE COURSE OF GOVERNMENT SHOULD BE CONTROLLED BY
A CONSENSUS OF THE GOVERNED.  THIS PROCESS OF REACHING INTELLIGENT
POPULAR DECISIONS REQUIRES FREE DISCUSSION.  HENCE WE SHOULD TOLERATE
NO LAW OR CUSTOM OF CENSORSHIP OR SUPPRESSION. 

BUT WE MUST BEAR IN MIND ALSO THAT NO SERIOUS OUTBREAK OF MOB
VIOLENCE, RACE RIOTING, LYNCHING OR PUBLIC DISORDER IS LIKELY TO GET
GOING WITHOUT HELP OF SOME SPEECH-MAKING TO SOME MASS OF PEOPLE.  A
STREET MAY BE FILLED WITH MEN AND WOMEN AND THE CROWD STILL NOT BE A
MOB.  UNITY OF PURPOSE, PASSION AND HATRED, WHICH MERGES THE MANY MINDS
OF A CROWD INTO THE MINDLESSNESS OF A MOB, ALMOST INVARIABLY IS
SUPPLIED BY SPEECHES.  IT IS NAIVE, OR WORSE, TO TEACH THAT ORATORY
WITH THIS OBJECT OR EFFECT IS A SERVICE TO LIBERTY.  NO MOB HAS EVER
PROTECTED ANY LIBERTY, EVEN ITS OWN, BUT IF NOT PUT DOWN IT ALWAYS
WINDS UP IN AN ORGY OF LAWLESSNESS WHICH RESPECTS NO LIBERTIES. 

IN CONSIDERING ABUSE OF FREEDOM BY PROVOCATIVE UTTERANCES IT IS
NECESSARY TO OBSERVE THAT THE LAW IS MORE TOLERANT OF DISCUSSION THAN
ARE MOST INDIVIDUALS OR COMMUNITIES.  LAW IS SO INDIFFERENT TO SUBJECTS
OF TALK THAT I THINK OF NONE THAT IT SHOULD CLOSE TO DISCUSSION. 
RELIGIOUS, SOCIAL AND POLITICAL TOPICS THAT IN OTHER TIMES OR COUNTRIES
HAVE NOT BEEN OPEN TO LAWFUL DEBATE MAY BE FREELY DISCUSSED HERE. 

BECAUSE A SUBJECT IS LEGALLY ARGUABLE, HOWEVER, DOES NOT MEAN THAT
PUBLIC SENTIMENT WILL BE PATIENT OF ITS ADVOCACY AT ALL TIMES AND IN
ALL MANNERS.  SO IT HAPPENS THAT, WHILE PEACEFUL ADVOCACY OF COMMUNISM
OR FASCISM IS TOLERATED BY THE LAW, BOTH OF THESE DOCTRINES AROUSE
PASSIONATE REACTIONS.  A GREAT NUMBER OF PEOPLE DO NOT AGREE THAT
INTRODUCTION TO AMERICA OF COMMUNISM OR FASCISM IS EVEN DEBATABLE. 
HENCE MANY SPEECHES, SUCH AS THAT OF TERMINIELLO, MAY BE LEGALLY
PERMISSIBLE BUT MAY NEVERTHELESS IN SOME SURROUNDINGS BE A MENACE TO
PEACE AND ORDER.  WHEN CONDITIONS SHOW THE SPEAKER THAT THIS IS THE
CASE, AS IT DID HERE, THERE CERTAINLY COMES A POINT BEYOND WHICH HE
CANNOT INDULGE IN PROVOCATIONS TO VIOLENCE WITHOUT BEING ANSWERABLE TO
SOCIETY. 

DETERMINATION OF SUCH AN ISSUE INVOLVES A HEAVY RESPONSIBILITY. 
COURTS MUST BEWARE LEST THEY BECOME MERE ORGANS OF POPULAR
INTOLERANCE.  NOT EVERY SHOW OF OPPOSITION CAN JUSTIFY TREATING A
SPEECH AS A BREACH OF PEACE.  NEITHER SPEAKERS NOR COURTS ARE OBLIGED
ALWAYS AND IN ALL CIRCUMSTANCES TO YIELD TO PREVAILING OPINION AND
FEELING.  AS A PEOPLE GROW IN CAPACITY FOR CIVILIZATION AND LIBERTY
THEIR TOLERANCE WILL GROW, AND THEY WILL ENDURE, IF NOT WELCOME,
DISCUSSION EVEN ON TOPICS AS TO WHICH THEY ARE COMMITTED.  THEY REGARD
CONVICTIONS AS TENTATIVE AND KNOW THAT TIME AND EVENTS WILL MAKE THEIR
OWN TERMS WITH THEORIES, BY WHOMEVER AND BY WHATEVER MAJORITIES THEY
ARE HELD, AND MANY WILL BE PROVED WRONG.  BUT ON OUR WAY TO THIS
IDEALISTIC STATE OF TOLERANCE THE POLICE HAVE TO DEAL WITH MEN AS THEY
ARE.  THE CROWD MIND IS NEVER TOLERANT OF ANY IDEA WHICH DOES NOT
CONFORM TO ITS HERD OPINION.  IT DOES NOT WANT A TOLERANT EFFORT AT
MEETING OF MINDS.  IT DOES NOT KNOW THE FUTILITY OF TRYING TO MOB AN
IDEA.  RELEASED FROM THE SENSE OF PERSONAL RESPONSIBILITY THAT WOULD
RESTRAIN EVEN THE WORST INDIVIDUALS IN IT IF ALONE AND BRAVE WITH THE
COURAGE OF NUMBERS, BOTH RADICAL AND REACTIONARY MOBS ENDANGER LIBERTY
AS WELL AS ORDER.  THE AUTHORITIES MUST CONTROL THEM AND THEY ARE
ENTITLED TO PLACE SOME CHECKS UPON THOSE WHOSE BEHAVIOR OR SPEECH CALLS
SUCH MOBS INTO BEING.  WHEN THE RIGHT OF SOCIETY TO FREEDOM FROM
PROBABLE VIOLENCE SHOULD PREVAIL OVER THE RIGHT OF AN INDIVIDUAL TO
DEFY OPPOSING OPINION, PRESENTS A PROBLEM THAT ALWAYS TESTS WISDOM AND
OFTEN CALLS FOR IMMEDIATE AND VIGOROUS ACTION TO PRESERVE PUBLIC ORDER
AND SAFETY. 

I DO NOT THINK THAT THE CONSTITUTION OF THE UNITED STATES DENIES TO
THE STATES AND THE MUNICIPALITIES POWER TO SOLVE THAT PROBLEM IN THE
LIGHT OF LOCAL CONDITIONS, AT LEAST SO LONG AS DANGER TO PUBLIC ORDER
IS NOT INVOKED IN BAD FAITH, AS A COVER FOR CENSORSHIP OR SUPPRESSION. 
THE PREAMBLE DECLARES DOMESTIC TRANQUILITY AS WELL AS LIBERTY TO BE AN
OBJECT IN FOUNDING A FEDERAL GOVERNMENT AND I DO NOT THINK THE
FOREFATHERS WERE NAIVE IN BELIEVING BOTH CAN BE FOSTERED BY THE LAW. 

CERTAIN PRACTICAL REASONS REINFORCE THE LEGAL VIEW THAT CITIES AND
STATES SHOULD BE SUSTAINED IN THE POWER TO KEEP THEIR STREETS FROM
BECOMING THE BATTLEGROUND FOR THESE HOSTILE IDEOLOGIES TO THE
DESTRUCTION AND DETRIMENT OF PUBLIC ORDER.  THERE IS NO OTHER POWER
THAT CAN DO IT.  THEIRS ARE THE ONLY POLICE THAT ARE ON THE SPOT.  THE
FEDERAL GOVERNMENT HAS NO POLICE FORCE.  THE FEDERAL BUREAU OF
INVESTIGATION IS, AND SHOULD REMAIN, NOT A POLICE BUT AN INVESTIGATIVE
SERVICE.  TO DATE THE ONLY FEDERAL AGENCY FOR PRESERVING AND RESTORING
ORDER WHEN LOCAL AUTHORITY FAILS HAS BEEN THE ARMY.  AND WHEN THE
MILITARY STEPS IN, THE COURT TAKES A LESS LIBERAL VIEW OF THE RIGHTS OF
THE INDIVIDUAL AND SUSTAINS MOST ARBITRARY EXERCISES OF MILITARY
POWER.  SEE KOREMATSU V. UNITED STATES, 323 U.S. 214.  EVERY FAILURE OF
LOCAL AUTHORITY TO DEAL WITH RIOT PROBLEMS RESULTS IN A DEMAND FOR THE
ESTABLISHMENT OF A FEDERAL POLICE OR INTERVENTION BY FEDERAL
AUTHORITY.  IN MY OPINION, LOCALLY ESTABLISHED AND CONTROLLED POLICE
CAN NEVER DEVELOP INTO THE MENACE TO GENERAL CIVIL LIBERTIES THAT IS
INHERENT IN A FEDERAL POLICE. 

THE WAYS IN WHICH MOB VIOLENCE MAY BE WORKED UP ARE SUBTLE AND
VARIOUS.  RARELY WILL A SPEAKER DIRECTLY URGE A CROWD TO LAY HANDS ON A
VICTIM OR CLASS OF VICTIMS.  AN EFFECTIVE AND SAFER WAY IS TO INCITE
MOB ACTION WHILE PRETENDING TO DEPLORE IT, AFTER THE CLASSIC EXAMPLE OF
ANTONY, AND THIS WAS NOT LOST ON TERMINIELLO.  AND WHETHER ONE MAY BE
THE CAUSE OF MOB VIOLENCE BY HIS OWN PERSONIFICATION OR ADVOCACY OF
IDEAS WHICH A CROWD ALREADY FEARS AND HATES, IS NOT SOLVED MERELY BY
GOING THROUGH A TRANSCRIPT OF THE SPEECH TO PICK OUT "FIGHTING WORDS." 
THE MOST INSULTING WORDS CAN BE NEUTRALIZED IF THE SPEAKER WILL SMILE
WHEN HE SAYS THEM, BUT A BELLIGERENT PERSONALITY AND AN AGGRESSIVE
MANNER MAY KINDLE A FIGHT WITHOUT USE OF WORDS THAT IN COLD TYPE SHOCK
US.  TRUE JUDGMENT WILL BE AIDED BY OBSERVATION OF THE INDIVIDUAL
DEFENDANT, AS WAS POSSIBLE FOR THIS JURY AND TRIAL COURT BUT IMPOSSIBLE
FOR US. 

THERE ARE MANY APPEALS THESE DAYS TO LIBERTY, OFTEN BY THOSE WHO ARE
WORKING FOR AN OPPORTUNITY TO TAUNT DEMOCRACY WITH ITS STUPIDITY IN
FURNISHING THEM THE WEAPONS TO DESTROY IT AS DID GOEBBELS WHEN HE SAID:
"WHEN DEMOCRACY GRANTED DEMOCRATIC METHODS FOR US IN THE TIMES OF
OPPOSITION, THIS (NAZI SEIZURE OF POWER) WAS BOUND TO HAPPEN IN A
DEMOCRATIC SYSTEM.  HOWEVER, WE NATIONAL SOCIALISTS NEVER ASSERTED THAT
WE REPRESENTED A DEMOCRATIC POINT OF VIEW, BUT WE HAVE DECLARED OPENLY
THAT WE USED DEMOCRATIC METHODS ONLY IN ORDER TO GAIN THE POWER AND
THAT, AFTER ASSUMING THE POWER, WE WOULD DENY TO OUR ADVERSARIES
WITHOUT ANY CONSIDERATION THE MEANS WHICH WERE GRANTED TO US IN THE
TIMES OF (OUR) OPPOSITION."  1 NAZI CONSPIRACY AND AGGRESSION (GPO,
1946) 202, DOC. 2412-PS. 

INVOCATION OF CONSTITUTIONAL LIBERTIES AS PART OF THE STRATEGY FOR
OVERTHROWING THEM PRESENTS A DILEMMA TO A FREE PEOPLE WHICH MAY NOT BE
SOLUBLE BY CONSTITUTIONAL LOGIC ALONE. 

BUT I WOULD NOT BE UNDERSTOOD AS SUGGESTING THAT THE UNITED STATES
CAN OR SHOULD MEET THIS DILEMMA BY SUPPRESSION OF FREE, OPEN AND PUBLIC
SPEAKING ON THE PART OF ANY GROUP OR IDEOLOGY.  SUPPRESSION HAS NEVER
BEEN A SUCCESSFUL PERMANENT POLICY; ANY SURFACE SERENITY THAT IT
CREATES IS A FALSE SECURITY, WHILE CONSPIRATORIAL FORCES GO
UNDERGROUND.  MY CONFIDENCE IN AMERICAN INSTITUTIONS AND IN THE SOUND
SENSE OF THE AMERICAN PEOPLE IS SUCH THAT IF WITH A STROKE OF THE PEN I
COULD SILENCE EVERY FASCIST AND COMMUNIST SPEAKER, I WOULD NOT DO IT.
FOR I AGREE WITH WOODROW WILSON, WHO SAID: 

"I HAVE ALWAYS BEEN AMONG THOSE WHO BELIEVED THAT THE GREATEST
FREEDOM OF SPEECH WAS THE GREATEST SAFETY, BECAUSE IF A MAN IS A FOOL,
THE BEST THING TO DO IS TO ENCOURAGE HIM TO ADVERTISE THE FACT BY
SPEAKING.  IT CANNOT BE SO EASILY DISCOVERED IF YOU ALLOW HIM TO REMAIN
SILENT AND LOOK WISE, BUT IF YOU LET HIM SPEAK, THE SECRET IS OUT AND
THE WORLD KNOWS THAT HE IS A FOOL.  SO IT IS BY THE EXPOSURE OF FOLLY
THAT IT IS DEFEATED; NOT BY THE SECLUSION OF FOLLY, AND IN THIS FREE
AIR OF FREE SPEECH MEN GET INTO THAT SORT OF COMMUNICATION WITH ONE
ANOTHER WHICH CONSTITUTES THE BASIS OF ALL COMMON ACHIEVEMENT." 
ADDRESS AT THE INSTITUTE OF FRANCE, PARIS, MAY 10, 1919.  2 SELECTED
LITERARY AND POLITICAL PAPERS AND ADDRESSES OF WOODROW WILSON (1926)
333. 

BUT IF WE MAINTAIN A GENERAL POLICY OF FREE SPEAKING, WE MUST
RECOGNIZE THAT ITS INEVITABLE CONSEQUENCE WILL BE SPORADIC LOCAL
OUTBREAKS OF VIOLENCE, FOR IT IS THE NATURE OF MEN TO BE INTOLERANT OF
ATTACKS UPON INSTITUTIONS, PERSONALITIES AND IDEAS FOR WHICH THEY
REALLY CARE.  IN THE LONG RUN, MAINTENANCE OF FREE SPEECH WILL BE MORE
ENDANGERED IF THE POPULATION CAN HAVE NO PROTECTION FROM THE ABUSES
WHICH LEAD TO VIOLENCE.  NO LIBERTY IS MADE MORE SECURE BY HOLDING THAT
ITS ABUSES ARE INSEPARABLE FROM ITS ENJOYMENT.  WE MUST NOT FORGET THAT
IT IS THE FREE DEMOCRATIC COMMUNITIES THAT ASK US TO TRUST THEM TO
MAINTAIN PEACE WITH LIBERTY AND THAT THE FACTIONS ENGAGED IN THIS
BATTLE ARE NOT INTERESTED PERMANENTLY IN EITHER.  WHAT WOULD IT MATTER
TO TERMINIELLO IF THE POLICE BATTER UP SOME COMMUNISTS OR, ON THE OTHER
HAND, IF THE COMMUNISTS BATTER UP SOME POLICEMEN?  EITHER RESULT MAKES
GRIST FOR HIS MILL; EITHER WOULD HELP PROMOTE HYSTERIA AND THE DEMAND
FOR STRONG-ARM METHODS IN DEALING WITH HIS ADVERSARIES.  AND WHAT, ON
THE OTHER HAND, HAVE THE COMMUNIST AGITATORS TO LOSE FROM A BATTLE WITH
THE POLICE? 

THIS COURT HAS GONE FAR TOWARD ACCEPTING THE DOCTRINE THAT CIVIL
LIBERTY MEANS THE REMOVAL OF ALL RESTRAINTS FROM THESE CROWDS AND THAT
ALL LOCAL ATTEMPTS TO MAINTAIN ORDER ARE IMPAIRMENTS OF THE LIBERTY OF
THE CITIZEN.  THE CHOICE IS NOT BETWEEN ORDER AND LIBERTY.  IT IS
BETWEEN LIBERTY WITH ORDER AND ANARCHY WITHOUT EITHER.  THERE IS DANGER
THAT, IF THE COURT DOES NOT TEMPER ITS DOCTRINAIRE LOGIC WITH A LITTLE
PRACTICAL WISDOM, IT WILL CONVERT THE CONSTITUTIONAL BILL OF RIGHTS
INTO A SUICIDE PACT. 

I WOULD AFFIRM THE CONVICTION. 

MR. JUSTICE BURTON JOINS IN THIS OPINION. 
..END :



UNION NATIONAL BANK V. LAMB, 337 U.S. 38 


NO. 500.  ARGUED MARCH 31, 1949.  - DECIDED MAY 16, 1949.  - 358 MO. 65,
213 S.W.2D 416, REVERSED. 


1.  A JUDGMENT OF THE HIGHEST COURT OF A STATE DETERMINING A CLAIM OF
RIGHT UNDER THE FULL FAITH AND CREDIT CLAUSE OF THE FEDERAL
CONSTITUTION IS REVIEWABLE HERE NOT BY APPEAL BUT BY CERTIORARI; AND
THE PAPERS WHEREON AN APPEAL HAS BEEN IMPROVIDENTLY TAKEN IN SUCH A
CASE MAY BE TREATED AS A PETITION FOR A WRIT OF CERTIORARI.  28 U.S.C.
SECS. 1257(3), 2103.  PP. 39-40. 

2.  WHERE THE LAST DAY OF THE PERIOD WITHIN WHICH A REVIEW BY THIS
COURT ON APPEAL OR CERTIORARI MAY BE APPLIED FOR FALLS ON A SUNDAY OR
LEGAL HOLIDAY, AN APPLICATION MADE ON THE NEXT DAY WHICH IS NOT A
SUNDAY OR LEGAL HOLIDAY IS TIMELY UNDER 28 U.S.C. SEC. 2101(C) AND RULE
6(A) OF THE RULES OF CIVIL PROCEDURE.  PP. 40-41. 

3.  IN 1927 PETITIONER OBTAINED A COLORADO JUDGMENT AGAINST
RESPONDENT, WHICH WAS REVIVED IN COLORADO IN 1945 ON PERSONAL SERVICE
UPON RESPONDENT IN MISSOURI.  SUIT WAS THEN BROUGHT IN MISSOURI ON THE
REVIVED COLORADO JUDGMENT.  THE SUPREME COURT OF MISSOURI, THOUGH
ASSUMING THAT THE JUDGMENT WAS VALID IN COLORADO, REFUSED TO ENFORCE IT
BECAUSE, UNDER MISSOURI LAW, THE ORIGINAL JUDGMENT COULD NOT HAVE BEEN
REVIVED IN 1945.  HELD:  THE DECISION OF THE MISSOURI COURT THAT,
WHATEVER THE EFFECT OF REVIVOR UNDER COLORADO LAW, THE COLORADO
JUDGMENT WAS NOT ENTITLED TO FULL FAITH AND CREDIT IN MISSOURI, IS
ERRONEOUS.  ROCHE V. MCDONALD, 275 U.S. 449.  PP. 41-45. 

4.  THE QUESTION OF THE STATUS OF THE 1945 JUDGMENT UNDER COLORADO
LAW, AND THE QUESTION WHETHER THE SERVICE ON WHICH THE COLORADO
JUDGMENT WAS REVIVED SATISFIED DUE PROCESS, WHICH WERE NOT PASSED UPON
BY THE MISSOURI COURT, WILL BE OPEN ON REMAND OF THE CAUSE.  P. 44. 

UNION NATIONAL BANK V. LAMB. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

THE SUPREME COURT OF MISSOURI REFUSED ENFORCEMENT OF A COLORADO
JUDGMENT.  358 MO. 65, 213 S.W.2D 416.  TREATING THE APPEAL PAPERS AS A
PETITION FOR CERTIORARI, THIS COURT GRANTS CERTIORARI AND REVERSES THE
JUDGMENT.  PP. 40-41, 45. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

MISSOURI HAS A STATUTE WHICH LIMITS THE LIFE OF A JUDGMENT TO TEN
YEARS AFTER ITS ORIGINAL RENDITION OR TEN YEARS AFTER ITS REVIVAL.  FN1
MISSOURI ALSO PROVIDES THAT NO JUDGMENT CAN BE REVIVED AFTER TEN YEARS
FROM ITS RENDITION.  FN2  THESE PROVISIONS ARE APPLICABLE TO ALL
JUDGMENTS WHETHER RENDERED BY A MISSOURI COURT OR BY ANY OTHER COURT. 

PETITIONER HAS A COLORADO JUDGMENT AGAINST RESPONDENT.  IT WAS
OBTAINED IN 1927 AND REVIVED IN COLORADO  FN3  IN 1945 ON PERSONAL
SERVICE UPON RESPONDENT IN MISSOURI.  SUIT WAS THEN BROUGHT IN MISSOURI
ON THE REVIVED COLORADO JUDGMENT.  THE SUPREME COURT OF MISSOURI,
THOUGH ASSUMING THAT THE JUDGMENT WAS VALID IN COLORADO, REFUSED TO
ENFORCE IT BECAUSE THE ORIGINAL JUDGMENT UNDER MISSOURI'S LAW COULD NOT
HAVE BEEN REVIVED IN 1945.  IT HELD THAT THE LEX FORI GOVERNS THE
LIMITATIONS OF ACTIONS AND THAT THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION, ART. IV, SEC. 1, DID NOT REQUIRE MISSOURI TO RECOGNIZE
COLORADO'S MORE LENIENT POLICY AS RESPECTS REVIVAL OF JUDGMENTS.  358
MO. 65, 213 S.W.2D 416. 

1.  PETITIONER SOUGHT TO BRING THE CASE HERE BY APPEAL.  BUT WE
POSTPONED THE QUESTION OF JURISDICTION TO THE MERITS.  CERTIORARI, NOT
APPEAL, IS THE ROUTE BY WHICH THE QUESTION WHETHER OR NOT FULL FAITH
AND CREDIT HAS BEEN GIVEN A FOREIGN JUDGMENT IS BROUGHT HERE.  ROCHE V.
MCDONALD, 275 U.S. 449; MORRIS V. JONES, 329 U.S. 545.  HENCE WE TREAT
THE PAPERS AS A PETITION FOR CERTIORARI, 28 U.S.C. SEC. 2103, AND GRANT
IT. 

2.  THE OPINION OF THE SUPREME COURT OF MISSOURI WAS HANDED DOWN JULY
12, 1948, AND THE MOTION FOR REHEARING OR FOR TRANSFER TO THE COURT EN
BANC  FN4  WAS DENIED SEPTEMBER 13, 1948.  THE APPEAL WAS ALLOWED BY
THE MISSOURI COURT ON DECEMBER 13, 1948.  THAT WAS WITHIN THREE MONTHS
AND THEREFORE TIMELY PRIOR TO THE REVISION OF THE JUDICIAL CODE.  BUT
28 U.S.C. SEC. 2101(C), EFFECTIVE SEPTEMBER 1, 1948, REDUCED THAT
PERIOD TO NINETY DAYS.  THE NINETIETH DAY WAS DECEMBER 12, 1948, WHICH
WAS A SUNDAY.  THERE IS A CONTRARIETY OF VIEWS WHETHER AN ACT WHICH BY
STATUTE IS REQUIRED TO BE DONE WITHIN A STATED PERIOD MAY BE DONE A DAY
LATER WHEN THE LAST DAY OF THE PERIOD FALLS ON SUNDAY.  FN5  THUS
STREET V. UNITED STATES, 133 U.S. 299, TREATING SUNDAY AS A DIES NON
UNDER A STATUTE WHICH AUTHORIZED THE PRESIDENT TO TRANSFER ARMY
OFFICERS FROM ACTIVE DUTY AND TO FILL VACANCIES IN THE ACTIVE LIST ON
OR BEFORE JANUARY 1, 1871, ALLOWED THE ACTION TO BE TAKEN ON THE
FOLLOWING DAY.  WE THINK THE POLICY OF THAT DECISION IS APPLICABLE TO
28 U.S.C. SEC. 2101(C).  RULE 6(A) OF THE RULES OF CIVIL PROCEDURE
PROVIDES THAT WHERE THE LAST DAY FOR PERFORMANCE OF AN ACT FALLS ON A
SUNDAY OR A LEGAL HOLIDAY, PERFORMANCE ON THE NEXT DAY WHICH IS NOT A
SUNDAY OR LEGAL HOLIDAY IS TIMELY.  FN6  THAT RULE PROVIDES THE METHOD
FOR COMPUTATION OF TIME PRESCRIBED OR ALLOWED NOT ONLY BY THE RULES OR
BY ORDER OF COURT BUT BY "ANY APPLICABLE STATUTE."  SINCE THE RULE HAD
THE CONCURRENCE OF CONGRESS,  FN7  AND SINCE NO CONTRARY POLICY IS
EXPRESSED IN THE STATUTE GOVERNING THIS REVIEW, WE THINK THAT THE
CONSIDERATIONS OF LIBERALITY AND LENIENCY WHICH FIND EXPRESSION IN RULE
6(A) ARE EQUALLY APPLICABLE TO 28 U.S.C. SEC. 2101(C).  THE APPEAL
THEREFORE DID NOT FAIL FOR LACK OF TIMELINESS. 

3.  ROCHE V. MCDONALD IS DISPOSITIVE OF THE MERITS.  ROCHE HAD A
WASHINGTON JUDGMENT AGAINST MCDONALD.  HE BROUGHT SUIT ON THAT JUDGMENT
IN OREGON.  HE OBTAINED A JUDGMENT IN OREGON AT A TIME WHEN THE
ORIGINAL JUDGMENT HAD BY WASHINGTON LAW EXPIRED AND COULD NOT BE
REVIVED.  ROCHE THEN SUED IN WASHINGTON ON THE OREGON JUDGMENT.  THE
COURT REVERSED THE SUPREME COURT OF WASHINGTON WHICH HAD HELD THAT FULL
FAITH AND CREDIT NEED NOT BE GIVEN THE OREGON JUDGMENT SINCE IT WOULD
HAVE BEEN VOID AND OF NO EFFECT IF RENDERED IN WASHINGTON.  THE COURT
HELD THAT ONCE THE COURT OF THE SISTER STATE HAD JURISDICTION OVER THE
PARTIES AND OF THE SUBJECT MATTER ITS JUDGMENT WAS VALID AND COULD NOT
BE IMPEACHED IN THE STATE OF THE FORUM, EVEN THOUGH IT COULD NOT HAVE
BEEN OBTAINED THERE.  THAT DECISION WAS IN LINE WITH FAUNTLEROY V. LUM,
210 U.S. 230 AND CHRISTMAS V. RUSSELL, 5 WALL.  290.  FOR IN THOSE
CASES THE COURT HAD HELD THAT THE STATE OF THE FORUM COULD NOT DEFEAT
THE FOREIGN JUDGMENT BECAUSE IT WAS OBTAINED BY A PROCEDURE HOSTILE TO
OR INCONSISTENT WITH THAT OF THE FORUM OR BECAUSE IT WAS BASED ON A
CAUSE OF ACTION WHICH THE FORUM ITSELF WOULD NOT HAVE RECOGNIZED. 

ANY OTHER RESULT WOULD DEFEAT THE AIM OF THE FULL FAITH AND CREDIT
CLAUSE AND THE STATUTE ENACTED PURSUANT TO IT.  FN8  IT IS WHEN A CLASH
OF POLICIES BETWEEN TWO STATES EMERGES THAT THE NEED OF THE CLAUSE IS
THE GREATEST.  IT AND THE STATUTE WHICH IMPLEMENTS IT ARE INDEED
DESIGNED TO RESOLVE SUCH CONTROVERSIES.  MORRIS V. JONES, SUPRA.  THERE
IS NO ROOM FOR AN EXCEPTION, AS ROCHE V. MCDONALD MAKES PLAIN, WHERE
THE CLASH OF POLICIES RELATES TO REVIVED JUDGMENTS RATHER THAN TO THE
NATURE OF THE UNDERLYING CLAIM AS IN FAUNTLEROY V. LUM, SUPRA.  IT IS
THE JUDGMENT THAT MUST BE GIVEN FULL FAITH AND CREDIT.  IN NEITHER CASE
CAN ITS INTEGRITY BE IMPAIRED, SAVE FOR ATTACKS ON THE JURISDICTION OF
THE COURT THAT RENDERED IT. 

CASES OF STATUTE OF LIMITATIONS AGAINST A CAUSE OF ACTION ON A
JUDGMENT (M'ELMOYLE V. COHEN, 13 PET. 312) INVOLVE DIFFERENT
CONSIDERATIONS AS CHRISTMAS V. RUSSELL, SUPRA, P. 300, LONG AGO POINTED
OUT.  THEY DO NOT UNDERMINE THE INTEGRITY OF THE JUDGMENT ON WHICH SUIT
IS BROUGHT.  IN THIS CASE IT IS THE 1945 COLORADO JUDGMENT THAT CLAIMS
FULL FAITH AND CREDIT IN MISSOURI.  NO MISSOURI STATUTE OF LIMITATIONS
IS TENDERED TO CUT OFF A CAUSE OF ACTION BASED ON JUDGMENTS OF THAT
VINTAGE. 

IT IS ARGUED, HOWEVER, THAT UNDER COLORADO LAW THE 1945 COLORADO
JUDGMENT IS NOT A NEW JUDGMENT AND THAT THE REVIVOR DID NO MORE THAN
EXTEND THE STATUTORY PERIOD IN WHICH TO ENFORCE THE OLD JUDGMENT.  FN9
IT IS SAID THAT THOSE WERE THE ASSUMPTIONS ON WHICH THE MISSOURI COURT
PROCEEDED.  BUT WE WOULD HAVE TO ADD TO AND SUBTRACT FROM ITS OPINION
TO GIVE IT THAT MEANING.  FOR WHEN IT PLACED REVIVED JUDGMENTS ON THE
SAME BASIS AS ORIGINAL JUDGMENTS, IT DID SO BECAUSE OF MISSOURI NOT
COLORADO LAW.  FN10 

THIS IS NOT A SITUATION WHERE COLORADO LAW ALSO MAKES THAT CONCLUSION
PLAIN.  THE COLORADO AUTHORITIES WHICH HAVE BEEN CITED TO US INDEED
SEEM TO HOLD JUST THE OPPOSITE.  THUS LA FITTE V. SALISBURY, 43 COLO.
248, 95 P. 1065, HOLDS THAT A REVIVED JUDGMENT HAS THE EFFECT OF A NEW
ONE.  FN11  WE ARE REFERRED TO NO COLORADO AUTHORITIES TO THE
CONTRARY. 

BUT SINCE THE STATUS OF THE 1945 JUDGMENT UNDER COLORADO LAW WAS NOT
PASSED UPON BY THE MISSOURI COURT, WE DO NOT DETERMINE THE QUESTION. 
FOR THE SAME REASON WE DO NOT CONSIDER WHETHER THE SERVICE ON WHICH THE
COLORADO JUDGMENT WAS REVIVED SATISFIED DUE PROCESS.  SEE OWENS V.
HENRY, 161 U.S. 642.  BOTH OF THOSE QUESTIONS WILL BE OPEN ON REMAND OF
THE CAUSE. 

THE SUGGESTION THAT WE FOLLOW THE COURSE TAKEN IN MINNESOTA V.
NATIONAL TEA CO., 309 U.S. 551, AND VACATE THE JUDGMENT AND REMAND THE
CAUSE TO THE MISSOURI COURT SO THAT IT MAY FIRST PASS ON THESE
QUESTIONS WOULD BE APPROPRIATE ONLY IF IT WERE UNCERTAIN WHETHER THAT
COURT ADJUDICATED A FEDERAL QUESTION.  THAT COURSE IS SINGULARLY
INAPPROPRIATE HERE SINCE IT IS PLAIN THAT THE MISSOURI COURT HELD THAT,
WHATEVER THE EFFECT OF REVIVOR UNDER COLORADO LAW, THE COLORADO
JUDGMENT WAS NOT ENTITLED TO FULL FAITH AND CREDIT IN MISSOURI.  THAT
HOLDING IS A RULING ON A FEDERAL QUESTION AND IT CANNOT STAND IF, AS
ASSUMED, THE COLORADO JUDGMENT HAD THE FORCE AND EFFECT OF A NEW ONE. 
REVERSED. 

FN1  1 REV. STAT. MO. 1939, SEC. 1038. 

FN2  1 REV. STAT. MO. 1939, SEC. 1271. 

FN3  1 COLO. STAT. ANN. 1935, C. 6, RULE 54(H); 3 ID., C. 93, SEC.
2. 

FN4  SEE GORMAN V. WASHINGTON UNIVERSITY, 316 U.S. 98. 

FN5  PRO:  STREET V. UNITED STATES, 133 U.S. 299; SHERWOOD BROS. V.
DISTRICT OF COLUMBIA, 72 APP. D.C. 155, 113 F.2D 162; WILSON V.
SOUTHERN R. CO., 147 F.2D 165.  CONTRA:  JOHNSON V. MEYERS, 54 F. 417;
MEYER V. HOT SPRINGS IMP.  CO., 169 F. 628; SIEGELSCHIFFER V. PENN. 
MUT.  LIFE INS. CO., 248 F. 226; LARKIN PACKER CO. V. HINDERLITER TOOL
CO., 60 F.2D 491; WALTERS V. BALTIMORE & O.R. CO., 76 F.2D 599. 

FN6  RULE 6(A) PROVIDES:  "IN COMPUTING ANY PERIOD OF TIME PRESCRIBED
OR ALLOWED BY THESE RULES, BY ORDER OF COURT, OR BY ANY APPLICABLE
STATUTE, THE DAY OF THE ACT, EVENT, OR DEFAULT AFTER WHICH THE
DESIGNATED PERIOD OF TIME BEGINS TO RUN IS NOT TO BE INCLUDED.  THE
LAST DAY OF THE PERIOD SO COMPUTED IS TO BE INCLUDED, UNLESS IT IS A
SUNDAY OR A LEGAL HOLIDAY, IN WHICH EVENT THE PERIOD RUNS UNTIL THE END
OF THE NEXT DAY WHICH IS NEITHER A SUNDAY NOR A HOLIDAY.  WHEN THE
PERIOD OF TIME PRESCRIBED OR ALLOWED IS LESS THAN 7 DAYS, INTERMEDIATE
SUNDAYS AND HOLIDAYS SHALL BE EXCLUDED IN THE COMPUTATION.  A HALF
HOLIDAY SHALL BE CONSIDERED AS OTHER DAYS AND NOT AS A HOLIDAY." 

FN7  SEE ACT OF JUNE 19, 1934, 48 STAT. 1064, 28 U.S.C. SEC. 723C,
NOW SEC. 2072; RULE 86, RULES OF CIVIL PROCEDURE; SIBBACH V. WILSON &
CO., 312 U.S. 1. 

FN8  ARTICLE IV, SEC. 1 OF THE CONSTITUTION PROVIDES:  "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." 

THE ACT OF CONGRESS ENACTED PURSUANT TO THE CLAUSE (28 U.S.C. SEC.
1738), IN PART READS AS FOLLOWS: 

"THE RECORDS AND JUDICIAL PROCEEDINGS OF ANY COURT OF ANY SUCH STATE,
TERRITORY OR POSSESSION, OR COPIES THEREOF, SHALL BE PROVED OR ADMITTED
IN OTHER COURTS WITHIN THE UNITED STATES AND ITS TERRITORIES AND
POSSESSIONS BY THE ATTESTATION OF THE CLERK AND SEAL OF THE COURT
ANNEXED, IF A SEAL EXISTS, TOGETHER WITH A CERTIFICATE OF A JUDGE OF
THE COURT THAT THE SAID ATTESTATION IS IN PROPER FORM. 

"SUCH ACTS, RECORDS AND JUDICIAL PROCEEDINGS OR COPIES THEREOF, SO
AUTHENTICATED, 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." 

FN9  THERE IS NO CONCESSION THAT UNDER COLORADO LAW REVIVAL DOES NOT
MAKE A NEW JUDGMENT.  PETITIONER MERELY ARGUES THAT THE REQUIREMENTS OF
DUE PROCESS ARE LESS EXACTING IN CASE OF A REVIVED, AS DISTINGUISHED
FROM AN ORIGINAL, JUDGMENT. 

FN10  THE MISSOURI COURT STATED, 358 MO. P. 70, 213 S.W.2D P. 419: 

"DEFINITELY, IT IS THE LAW OF THIS STATE THAT A FOREIGN JUDGMENT,
ABSENT REVIVAL, OR A PAYMENT THEREON AS PROVIDED IN SEC. 1038, IS
BARRED IN 10 YEARS FROM THE DATE OF ITS ORIGINAL RENDITION REGARDLESS
OF WHAT THE LIMITATION PERIOD MAY BE UNDER THE LAW OF THE STATE WHERE
THE JUDGMENT WAS RENDERED.  NORTHWESTERN BREWERS SUPPLY CO. V. VORHEES
(356 MO. 699, 203 S.W.2D 422).  AND THE ONLY REASONABLE CONCLUSION TO
DRAW IS THAT A REVIVED JUDGMENT, DOMESTIC OR FOREIGN, ABSENT A PAYMENT
AS PROVIDED IN SEC. 1038, IS BARRED UNDER SAID SECTION UNLESS THE
REVIVAL WAS WITHIN 10 YEARS FROM THE DATE OF ORIGINAL RENDITION OR, IF
SUCH IS THE CASE, WITHIN 10 YEARS FROM THE LAST REVIVAL.  IN OTHER
WORDS, A FOREIGN JUDGMENT, ORIGINAL OR REVIVED, HAS THE SAME STANDING
IN MISSOURI, NO BETTER, NO WORSE, THAN A DOMESTIC JUDGMENT.  THIS DOES
NOT RUN COUNTER TO THE FULL FAITH AND CREDIT PROVISION OF THE FEDERAL
CONSTITUTION, BECAUSE, AS WE HAVE SEEN, THE ENFORCEMENT OF A FOREIGN
JUDGMENT GOES TO THE REMEDY ONLY AND THAT IS A MATTER FOR THE LAW OF
THE FORUM." 

NORTHWESTERN BREWERS SUPPLY CO. V. VORHEES, WHICH THE COURT CITES,
DID NOT INVOLVE A REVIVED JUDGMENT.  IT MERELY HELD THAT A WISCONSIN
JUDGMENT SUED ON IN MISSOURI WAS SUBJECT TO MISSOURI'S STATUTE OF
LIMITATIONS.  THE FACT THAT THE MISSOURI COURT IN THE PRESENT CASE HELD
THAT THE REVIVED COLORADO JUDGMENT WAS GOVERNED BY THAT RULE THROWS NO
LIGHT ON THE STATUS OF THE REVIVED JUDGMENT UNDER COLORADO LAW. 

FN11  1 COLO. STAT. ANN. 1935, C. 6, RULE 54(H) PROVIDES IN PART: 

"A REVIVED JUDGMENT MUST BE ENTERED WITHIN 20 YEARS AFTER THE ENTRY
OF THE JUDGMENT WHICH IT REVIVES, AND MAY BE ENFORCED AND MADE A LIEN
IN THE SAME MANNER AND FOR LIKE PERIOD AS AN ORIGINAL JUDGMENT." 

MR. JUSTICE BLACK AND MR. JUSTICE RUTLEDGE DISSENT. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE COURT FINDS THAT ROCHE V. MCDONALD, 275 U.S. 449, IS "DISPOSITIVE
OF THE MERITS" OF THIS CASE.  I AGREE THAT THAT CASE DEMANDS THE REMAND
OF THIS ONE; MORE THAN THAT CAN BE FOUND ONLY BY MISCONCEIVING WHAT
THIS CASE IS ABOUT OR WHAT ROCHE V. MCDONALD DECIDED. 

1.  ARTICLE IV, SEC. 1 OF THE CONSTITUTION COMMANDS THE COURTS OF
EACH STATE TO GIVE "FULL FAITH AND CREDIT  ...  TO THE  ...  JUDICIAL
PROCEEDINGS OF EVERY OTHER STATE," AND WE HAVE INTERPRETED THIS COMMAND
SO STRAITLY AS TO MEAN THAT THE STATE OF THE FORUM CANNOT GO BEHIND THE
JUDGMENT OF A SISTER STATE TO ESTABLISH SUCH AN ALLEGATION AS THAT THE
JUDGMENT WAS PROCURED BY FRAUD, CHRISTMAS V. RUSSELL, 5 WALL.  290, OR
THAT THE JUDGMENT CREDITOR WAS NOT THE REAL PARTY IN INTEREST, TITUS V.
WALLICK, 306 U.S. 282.  WE HAVE EVEN REQUIRED A STATE WHICH PROHIBITED
THE ENFORCEMENT OF GAMBLING CONTRACTS TO GIVE FULL FAITH AND CREDIT TO
ANOTHER STATE'S JUDGMENT UPON SUCH A CONTRACT WHEN THE CONTRACT ITSELF
WAS ENTERED IN THE STATE WHICH REGARDED IT AS ILLEGAL.  FAUNTLEROY V.
LUM, 210 U.S. 230.  SEE ALSO KENNEY V. SUPREME LODGE, 252 U.S. 411;
MORRIS V. JONES, 329 U.S. 545. 

2.  CONSIDERATIONS OF POLICY LYING BEHIND THE FULL FAITH AND CREDIT
CLAUSE, HOWEVER, ARE BY NO MEANS SO FORCIBLY PRESENTED WHERE THE ISSUE
IS SIMPLY WHETHER THE FORUM MUST RESPECT THE LIMITATION PERIOD ATTACHED
TO A FOREIGN JUDGMENT OR WHETHER IT MAY APPLY ITS OWN.  THIS COURT HAS
ACCORDINGLY HELD THAT A STATE MAY REFUSE TO ENFORCE THE JUDGMENT OF
ANOTHER STATE BROUGHT LATER THAN ITS OWN STATUTE OF LIMITATIONS PERMITS
EVEN THOUGH THE JUDGMENT WOULD STILL HAVE BEEN ENFORCEABLE IN THE STATE
WHICH RENDERED IT.  M'ELMOYLE V. COHEN, 13 PET. 312; BACON V. HOWARD,
20 HOW.  22. 

3.  CONVERSELY, WHERE THE ENFORCEMENT OF A JUDGMENT BY STATE A IS
SOUGHT IN STATE B, WHICH HAS A LONGER LIMITATION PERIOD THAN STATE A,
STATE B IS PLAINLY FREE TO ENTER ITS OWN JUDGMENT UPON THE BASIS OF
STATE A'S ORIGINAL JUDGMENT, EVEN THOUGH THAT JUDGMENT WOULD NO LONGER
BE ENFORCEABLE IN STATE A. IF ENFORCEMENT OF STATE B'S NEW JUDGMENT IS
THEN SOUGHT IN STATE A, STATE A CANNOT REFUSE TO ENFORCE IT WITHOUT
VIOLATING THE PRINCIPLE THAT THE STATE WHERE ENFORCEMENT OF A JUDGMENT
IS SOUGHT CANNOT LOOK BEHIND THE JUDGMENT.  THAT WAS THE SITUATION IN
ROCHE V. MCDONALD, 275 U.S. 449, AND SO WE THERE HELD. 

4.  THE PRESENT SITUATION IS THIS:  COLORADO ENTERED A JUDGMENT IN
1927 WHICH IN 1945 WAS THERE REVIVED IN ACCORDANCE WITH COLORADO'S
PROCEDURE.  IN 1945 THE 1927 JUDGMENT COULD NOT HAVE BEEN ENFORCED IN
MISSOURI BECAUSE BARRED BY THAT STATE'S STATUTE OF LIMITATIONS.  THE
QUESTION WHETHER THE 1945 PROCEEDINGS GAVE RISE TO A JUDGMENT
ENFORCEABLE IN MISSOURI THUS DEPENDS, OBVIOUSLY, ON WHETHER THOSE
PROCEEDINGS CREATED A NEW COLORADO JUDGMENT, OR WHETHER THEY MERELY HAD
THE EFFECT OF EXTENDING THE COLORADO STATUTE OF LIMITATIONS ON THE OLD
JUDGMENT.  ONLY IN THE FORMER CASE WOULD ROCHE V. MCDONALD BE
"DISPOSITIVE OF THE MERITS"; IN THE LATTER, IT IS EQUALLY CLEAR THAT
M'ELMOYLE V. COHEN, SUPRA, 13 PET. 312, AND BACON V. HOWARD, SUPRA, 20
HOW.  22, WOULD BE CONTROLLING.  FUNDAMENTAL, THEREFORE, TO THE ISSUE
OF FULL FAITH AND CREDIT IS AN INITIAL DETERMINATION AS TO THE EFFECT
IN COLORADO OF ITS REVIVER PROCEEDINGS. 

5.  THE OPINION OF THE SUPREME COURT OF MISSOURI IS NOT UNEQUIVOCAL. 
IT COULD HARDLY, HOWEVER, HAVE ASSUMED THE LAW OF COLORADO TO BE THAT
REVIVER PROCEEDINGS CREATE A NEW JUDGMENT, FOR IT CHIEFLY RELIED UPON A
DECISION OF ITS OWN ACCORDING FULL RECOGNITION TO ROCHE V. MCDONALD AND
OTHER CASES INVOKING THE PRINCIPLE THAT THE FORUM CANNOT LOOK BEHIND A
JUDGMENT BROUGHT THERE FOR ENFORCEMENT.  SEE NORTHWESTERN BREWERS
SUPPLY CO. V. VORHEES, 356 MO. 699, 703, 203 S.W.2D 422, 424.  SURELY
WE OUGHT NOT TO ATTRIBUTE TO A STATE COURT A FLAGRANT DISREGARD OF THE
DECISIONS OF THIS COURT, PARTICULARLY WHEN IT SHOWS AWARENESS OF THESE
DECISIONS.  FN1  THE MORE OBVIOUS INTERPRETATION OF THE MISSOURI
COURT'S OPINION IS THAT IT ASSUMED THE EFFECT OF THE COLORADO
PROCEEDINGS TO BE WHAT THE FACE OF THE COLORADO STATUTE IMPLIES,
NAMELY, TO EXTEND THE STATUTE OF LIMITATIONS ON THE ORIGINAL JUDGMENT
N2.  WE SHOULD AFFIRM, THEREFORE, BUT FOR LANGUAGE WHICH SUGGESTS A
THIRD VIEW:  THAT BECAUSE THE ORIGINAL JUDGMENT WOULD HAVE BEEN
UNENFORCEABLE IN MISSOURI AT THE TIME OF THE REVIVER PROCEEDINGS, THOSE
PROCEEDINGS WERE NOT ENTITLED TO FULL FAITH AND CREDIT NO MATTER WHAT
THEIR EFFECT UNDER COLORADO LAW.  IF IN FACT THE COLORADO PROCEEDINGS
HAD RESULTED IN A NEW JUDGMENT, THIS VIEW WOULD HAVE DISREGARDED ROCHE
V. MCDONALD.  BUT A STATE COURT MAY REACH THE RIGHT RESULT DESPITE AN
AWKWARD FORMULATION OF THE ISSUE BEFORE IT. PETITIONER, TO BE ENTITLED
TO REDRESS, MUST ESTABLISH THAT COLORADO GAVE IT A JUDGMENT WHICH
MISSOURI FLOUTED, AND IT FAILS TO DO SO UNLESS IT SHOWS THAT UNDER
COLORADO LAW A JUDGMENT OF REVIVER IS A NEW JUDGMENT. 

6.  THE COURT DOES NOT FIND THAT PETITIONER HAS SUSTAINED THIS
BURDEN, AND WE SHOULD NEITHER INITIATE AN INDEPENDENT EXAMINATION OF
COLORADO LAW NOR REST UPON PHRASES IN A SINGLE DECISION THAT DOES NOT
EXPLICITLY ADJUDICATE THE QUESTION.  YET THE COURT CONCLUDES, "IN THIS
CASE IT IS THE 1945 COLORADO JUDGMENT THAT CLAIMS FULL FAITH AND CREDIT
IN MISSOURI.  NO MISSOURI STATUTE OF LIMITATIONS IS TENDERED TO CUT OFF
A CAUSE OF ACTION BASED ON JUDGMENTS OF THAT VINTAGE."  BUT THE VERY
QUESTION OF COLORADO LAW IN ISSUE IS WHETHER THE 1945 PROCEEDINGS DID
IN FACT CREATE A NEW JUDGMENT ENTITLED TO CLAIM FULL FAITH AND CREDIT. 
SINCE IN THE VIEW MOST FAVORABLE TO PETITIONER IT IS NOT CLEAR WHETHER
THE COURTS OF MISSOURI HAVE RESOLVED THIS ISSUE AGAINST PETITIONER OR
LEFT IT UNDECIDED, WE SHOULD NOT BY AFFIRMING FORECLOSE ALL OPPORTUNITY
FOR PETITIONER TO ESTABLISH THAT THE TRUE EFFECT OF THE REVIVER
PROCEEDINGS WAS TO GRANT IT A NEW JUDGMENT.  BUT NEITHER SHOULD WE
FORECLOSE THE ISSUE IN PETITIONER'S FAVOR. 

IN VIEW OF THE UNRESOLVED ELEMENTS OF THE SITUATION, THE PROCEDURE
OUTLINED IN MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551, 557, SHOULD BE
FOLLOWED IN DISPOSING OF THIS CASE.  ACCORDINGLY, I WOULD VACATE THE
JUDGMENT OF THE SUPREME COURT OF MISSOURI AND REMAND THE CASE FOR
FURTHER PROCEEDINGS. 

FN1  THE IMPROBABILITY THAT THIS WAS THE VIEW OF THE MISSOURI COURTS
IS EMPHASIZED BY THE FACT THAT SUCH A VIEW WOULD INEVITABLY INJECT INTO
THE CASE AN ISSUE WHICH IN FACT THEY PUT ASIDE AS IRRELEVANT:  THE
EFFECTIVENESS OF PERSONAL SERVICE UPON DEFENDANT IN MISSOURI TO OBTAIN
JURISDICTION IN COLORADO TO SUPPLANT THE OLD JUDGMENT BY A NEW ONE. 
SEE OWENS V. HENRY, 161 U.S. 642. 

FN2  "  ...  FROM AND AFTER TWENTY YEARS FROM THE ENTRY OF FINAL
JUDGMENT IN ANY COURT OF THIS STATE, THE SAME SHALL BE CONSIDERED AS
SATISFIED IN FULL, UNLESS REVIVED AS PROVIDED BY LAW."  3 COLO. STAT.
ANN. 1935, C. 93, SEC. 2. 
..END :



BROOKS V. UNITED STATES, 337 U.S. 49 


ARGUED MARCH 2, 1949.  - DECIDED MAY 16, 1949.  - 169 F.2D 840,
REVERSED. 


1.  THAT A PERSON WAS A MEMBER OF THE ARMED FORCES AT THE TIME OF THE
ACCIDENT DOES NOT PREVENT RECOVERY OF A JUDGMENT AGAINST THE UNITED
STATES UNDER THE FEDERAL TORT CLAIMS ACT FOR HIS DEATH OR INJURY (NOT
INCIDENT TO HIS SERVICES IN THE ARMED FORCES) RESULTING FROM THE
NEGLIGENCE OF AN EMPLOYEE OF THE GOVERNMENT.  PP. 50-53. 

2.  THIS DOES NOT NECESSARILY MEAN THAT THE AMOUNT PAYABLE UNDER
SERVICEMEN'S BENEFIT LAWS SHOULD NOT BE DEDUCTED, OR TAKEN INTO
CONSIDERATION, WHEN A SERVICEMAN OBTAINS A JUDGMENT AGAINST THE
GOVERNMENT UNDER THE FEDERAL TORT CLAIMS ACT.  PP. 53-54. 

BROOKS V. UNITED STATES. 

NO. 388.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT* . 

*TOGETHER WITH NO. 389, BROOKS, ADMINISTRATOR, V. UNITED STATES, ALSO
ON CERTIORARI TO THE SAME COURT. 

A DISTRICT COURT GAVE JUDGMENT AGAINST THE GOVERNMENT UNDER THE
FEDERAL TORT CLAIMS ACT, 60 STAT. 842, 28 U.S.C. (1946 ED.)  SEC. 
931(NOW SEC. 2674), FOR THE DEATH OF ONE MEMBER OF THE ARMED FORCES AND
THE INJURY OF ANOTHER (NOT INCIDENT TO THEIR SERVICE) RESULTING FROM
THE NEGLIGENCE OF AN EMPLOYEE OF THE GOVERNMENT.  THE COURT OF APPEALS
REVERSED.  169 F.2D 840.  THIS COURT GRANTED CERTIORARI.  335 U.S.
901.  REVERSED AND REMANDED, P. 54. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT AGAINST THE UNITED STATES UNDER THE FEDERAL TORT
CLAIMS ACT, 60 STAT. 842, 28 U.S.C. (1946 ED.)  SEC.  931, NOW 28
U.S.C. SEC. 2674.  THE QUESTION IS WHETHER MEMBERS OF THE UNITED STATES
ARMED FORCES CAN RECOVER UNDER THAT ACT FOR INJURIES NOT INCIDENT TO
THEIR SERVICE.  THE DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH
CAROLINA ENTERED JUDGMENT AGAINST THE GOVERNMENT, RENDERING AN
UNREPORTED OPINION, BUT THE COURT OF APPEALS FOR THE FOURTH CIRCUIT
REVERSED, IN A DIVIDED DECISION.  169 F.2D 840.  WE BROUGHT THE CASE
HERE ON CERTIORARI BECAUSE OF ITS IMPORTANCE AS AN INTERPRETATION OF
THE ACT.  335 U.S. 901. 

THE FACTS ARE THESE.  WELKER BROOKS, ARTHUR BROOKS, AND THEIR FATHER,
JAMES BROOKS, WERE RIDING IN THEIR AUTOMOBILE ALONG A PUBLIC HIGHWAY IN
NORTH CAROLINA ON A DARK, RAINY NIGHT IN FEBRUARY, 1945.  ARTHUR WAS
DRIVING.  HE CAME TO A FULL STOP BEFORE ENTERING AN INTERSECTION, AND
PROCEEDED ACROSS THE NEARER LANE OF THE INTERSECTING ROAD.  SECONDS
LATER THE CAR WAS STRUCK FROM THE LEFT BY A UNITED STATES ARMY TRUCK,
DRIVEN BY A CIVILIAN EMPLOYEE OF THE ARMY.  ARTHUR BROOKS WAS KILLED;
WELKER AND HIS FATHER WERE BADLY INJURED. 

WELKER AND THE ADMINISTRATOR OF ARTHUR'S ESTATE BROUGHT ACTIONS
AGAINST THE UNITED STATES IN THE DISTRICT COURT.  THE DISTRICT JUDGE
TRIED THE CAUSES WITHOUT A JURY AND FOUND NEGLIGENCE ON THE PART OF THE
TRUCK DRIVER.  THE GOVERNMENT MOVED TO DISMISS ON THE GROUND THAT
WELKER AND HIS DECEASED BROTHER WERE IN THE ARMED FORCES OF THE UNITED
STATES AT THE TIME OF THE ACCIDENT, AND WERE THEREFORE BARRED FROM
RECOVERY.  THE COURT DENIED THE MOTION, ENTERED A $25,425 JUDGMENT FOR
THE DECEDENT'S ESTATE, AND A $4,000 JUDGMENT FOR WELKER.  FN1  ON
APPEAL, HOWEVER, THE GOVERNMENT'S ARGUMENT PERSUADED THE COURT OF
APPEALS TO REVERSE THE JUDGMENT, JUDGE PARKER DISSENTING. 

WE AGREE WITH JUDGE PARKER.  THE STATUTE'S TERMS ARE CLEAR.  THEY
PROVIDE FOR DISTRICT COURT JURISDICTION OVER ANY CLAIM FOUNDED ON
NEGLIGENCE BROUGHT AGAINST THE UNITED STATES.  WE ARE NOT PERSUADED
THAT "ANY CLAIM" MEANS "ANY CLAIM BUT THAT OF SERVICEMEN."  THE STATUTE
DOES CONTAIN TWELVE EXCEPTIONS.  SEC. 421.  NONE EXCLUDE PETITIONERS'
CLAIMS.  ONE IS FOR CLAIMS ARISING IN A FOREIGN COUNTRY.  A SECOND
EXCLUDES CLAIMS ARISING OUT OF COMBATANT ACTIVITIES OF THE MILITARY OR
NAVAL FORCES, OR THE COAST GUARD, DURING TIME OF WAR.  THESE AND OTHER
EXCEPTIONS ARE TOO LENGTHY, SPECIFIC, AND CLOSE TO THE PRESENT PROBLEM
TO TAKE AWAY PETITIONERS' JUDGMENTS.  WITHOUT RESORTING TO AN AUTOMATIC
MAXIM OF CONSTRUCTION, SUCH EXCEPTIONS MAKE IT CLEAR TO US THAT
CONGRESS KNEW WHAT IT WAS ABOUT WHEN IT USED THE TERM "ANY CLAIM."  IT
WOULD BE ABSURD TO BELIEVE THAT CONGRESS DID NOT HAVE THE SERVICEMEN IN
MIND IN 1946, WHEN THIS STATUTE WAS PASSED.  THE OVERSEAS AND COMBATANT
ACTIVITIES EXCEPTIONS MAKE THIS PLAIN. 

MORE THAN THE LANGUAGE AND FRAMEWORK OF THE ACT SUPPORT THIS VIEW. 
THERE WERE EIGHTEEN TORT CLAIMS BILLS INTRODUCED IN CONGRESS BETWEEN
1925 AND 1935.  FN2  ALL BUT TWO  FN3  CONTAINED EXCEPTIONS DENYING
RECOVERY TO MEMBERS OF THE ARMED FORCES.  WHEN THE PRESENT TORT CLAIMS
ACT WAS FIRST INTRODUCED, THE EXCEPTION CONCERNING SERVICEMEN HAD BEEN
DROPPED.  FN4  WHAT REMAINED FROM PREVIOUS BILLS WAS AN EXCLUSION OF
ALL CLAIMS FOR WHICH COMPENSATION WAS PROVIDED BY THE WORLD WAR
VETERANS' ACT OF 1924 - 43 STAT. 607, 38 U.S.C. SEC. 421, COMPENSATION
FOR INJURY OR DEATH OCCURRING IN THE FIRST WORLD WAR.  H.R. 181, 79TH
CONG., 1ST SESS.  WHEN H.R. 181 WAS INCORPORATED INTO THE LEGISLATIVE
REORGANIZATION ACT, THE LAST VESTIGE OF THE EXCLUSION FOR MEMBERS OF
THE ARMED FORCES DISAPPEARED.  SEE ALSO NOTE, 1 SYRACUSE L. REV. 87, 93
94. 

THE GOVERNMENT ENVISAGES DIRE CONSEQUENCES SHOULD WE REVERSE THE
JUDGMENT.  FN5  A BATTLE COMMANDER'S POOR JUDGMENT, AN ARMY SURGEON'S
SLIP OF HAND, A DEFECTIVE JEEP WHICH CAUSES INJURY, ALL WOULD GROUND
TORT ACTIONS AGAINST THE UNITED STATES.  BUT WE ARE DEALING WITH AN
ACCIDENT WHICH HAD NOTHING TO DO WITH THE BROOKS' ARMY CAREERS,
INJURIES NOT CAUSED BY THEIR SERVICE EXCEPT IN THE SENSE THAT ALL HUMAN
EVENTS DEPEND UPON WHAT HAS ALREADY TRANSPIRED.  WERE THE ACCIDENT
INCIDENT TO THE BROOKS' SERVICE, A WHOLLY DIFFERENT CASE WOULD BE
PRESENTED.  WE EXPRESS NO OPINION AS TO IT, BUT WE MAY NOTE THAT ONLY
IN ITS CONTEXT DO DOBSON V. UNITED STATES, 27 F.2D 807, BRADEY V.
UNITED STATES, 151 F.2D 742, AND JEFFERSON V. UNITED STATES, 77
F.SUPP.  706, HAVE ANY RELEVANCE.  SEE THE SIMILAR DISTINCTION IN 31
U.S.C. SEC. 223B.  INTERPRETATION OF THE SAME WORDS MAY VARY, OF
COURSE, WITH THE CONSEQUENCES, FOR THOSE CONSEQUENCES MAY PROVIDE
INSIGHT FOR DETERMINATION OF CONGRESSIONAL PURPOSE.  LAWSON V. SUWANNEE
FRUIT & STEAMSHIP CO., 336 U.S. 198.  THE GOVERNMENT'S FEARS MAY HAVE
POINT IN REFLECTING CONGRESSIONAL PURPOSE TO LEAVE INJURIES INCIDENT TO
SERVICE WHERE THEY WERE, DESPITE LITERAL LANGUAGE AND OTHER
CONSIDERATIONS TO THE CONTRARY.  THE RESULT MAY BE SO OUTLANDISH THAT
EVEN THE FACTORS WE HAVE MENTIONED WOULD NOT PERMIT RECOVERY.  BUT THAT
IS NOT THE CASE BEFORE US. 

PROVISIONS IN OTHER STATUTES FOR DISABILITY PAYMENTS TO SERVICEMEN,
AND GRATUITY PAYMENTS TO THEIR SURVIVORS, 38 U.S.C. SEC. 701, INDICATE
NO PURPOSE TO FORBID TORT ACTIONS UNDER THE TORT CLAIMS ACT.  UNLIKE
THE USUAL WORKMAN'S COMPENSATION STATUTE, E.G., 33 U.S.C. SEC. 905,
THERE IS NOTHING IN THE TORT CLAIMS ACT OR THE VETERANS' LAWS WHICH
PROVIDES FOR EXCLUSIVENESS OF REMEDY.  UNITED STATES V. STANDARD OIL
CO., 332 U.S. 301, INDICATES THAT, SO FAR AS THIRD PARTY LIABILITY IS
CONCERNED.  NOR DID CONGRESS PROVIDE FOR AN ELECTION OF REMEDIES, AS IN
THE FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. SEC. 757.  THUS DAHN
V. DAVIS, 258 U.S. 421, AND CASES FOLLOWING THAT DECISION, ARE NOT IN
POINT.  COMPARE PARR V. UNITED STATES, 172 F.2D 462.  WE WILL NOT CALL
EITHER REMEDY IN THE PRESENT CASE EXCLUSIVE, NOR PRONOUNCE A DOCTRINE
OF ELECTION OF REMEDIES, WHEN CONGRESS HAS NOT DONE SO.  COMPARE 31
U.S.C. SEC. 224B, SPECIFICALLY REPEALED BY THE TORT CLAIMS ACT, SEC.
424(A).  IN THE VERY ACT WE ARE CONSTRUING, CONGRESS PROVIDED FOR
EXCLUSIVENESS OF THE REMEDY IN THREE INSTANCES, SECS. 403(D), 410(B),
AND 423, AND OMITTED ANY PROVISION WHICH WOULD GOVERN THIS CASE. 

BUT THIS DOES NOT MEAN THAT THE AMOUNT PAYABLE UNDER SERVICEMEN'S
BENEFIT LAWS SHOULD NOT BE DEDUCTED, OR TAKEN INTO CONSIDERATION, WHEN
THE SERVICEMAN OBTAINS JUDGMENT UNDER THE TORT CLAIMS ACT.  WITHOUT THE
BENEFIT OF ARGUMENT IN THIS COURT, OR DISCUSSION OF THE MATTER IN THE
COURT OF APPEALS, WE NOW SEE NO INDICATION THAT CONGRESS MEANT THE
UNITED STATES TO PAY TWICE FOR THE SAME INJURY.  CERTAIN ELEMENTS OF
TORT DAMAGES MAY BE THE EQUIVALENT OF ELEMENTS TAKEN INTO ACCOUNT IN
PROVIDING DISABILITY PAYMENTS.  IT WOULD SEEM INCONGRUOUS, AT FIRST
GLANCE, IF THE UNITED STATES SHOULD HAVE TO PAY IN TORT FOR HOSPITAL
EXPENSES IT HAD ALREADY PAID, FOR EXAMPLE.  AND WHATEVER THE LEGAL
THEORY BEHIND A WRONGFUL DEATH ACTION, THE SAME CONSIDERATIONS MIGHT
APPLY TO THE GOVERNMENT'S GRATUITY DEATH PAYMENT TO ARTHUR BROOKS'
SURVIVORS, ALTHOUGH NATIONAL SERVICE LIFE INSURANCE MIGHT BE CONSIDERED
A SEPARATE TRANSACTION, UNRELATED TO AN ACTION IN TORT OR OTHER
BENEFITS. 

BUT THE STATUTORY SCHEME AND THE VETERANS' ADMINISTRATION REGULATIONS
MAY DICTATE A CONTRARY RESULT.  THE POINT WAS NOT ARGUED IN THE CASE AS
IT CAME TO US FROM THE COURT OF APPEALS.  THE COURT BELOW DOES NOT
APPEAR TO HAVE PASSED UPON IT; IT WAS UNNECESSARY, IN THE VIEW THEY
TOOK OF THE CASE.  WE DO NOT KNOW FROM THIS RECORD WHETHER THE
GOVERNMENT OBJECTED TO THIS PORTION OF THE DISTRICT COURT JUDGMENT -
NOR CAN WE TELL FROM THIS RECORD WHETHER THE COURT OF APPEALS SHOULD
CONSIDER A GENERAL OBJECTION TO THE JUDGMENT SUFFICIENT TO ALLOW IT TO
CONSIDER THIS PROBLEM.  FINALLY, WE ARE NOT SURE HOW MUCH DEDUCTING THE
DISTRICT JUDGE DID.  IT IS OBVIOUS THAT WE ARE IN NO POSITION TO PASS
UPON THE QUESTION OF DEDUCTING OTHER BENEFITS IN THE CASE'S PRESENT
POSTURE. 

WE CONCLUDE THAT THE LANGUAGE, FRAMEWORK AND LEGISLATIVE HISTORY OF
THE TORT CLAIMS ACT REQUIRE A HOLDING THAT PETITIONERS' ACTIONS WERE
WELL FOUNDED.  BUT WE REMAND TO THE COURT OF APPEALS FOR ITS
CONSIDERATION OF THE PROBLEM OF REDUCING DAMAGES PRO TANTO, SHOULD IT
DECIDE THAT SUCH CONSIDERATION IS PROPER IN VIEW OF THE DISTRICT COURT
JUDGMENT AND THE PARTIES' ALLEGATIONS OF ERROR.  REVERSED AND
REMANDED. 

FN1  JAMES BROOKS, THE FATHER, ALSO RECOVERED JUDGMENT IN HIS OWN
RIGHT.  THE GOVERNMENT DOES NOT CONTEST HIS RECOVERY. 

FN2  H.R. 12178, 68TH CONG., 2D SESS.; H.R. 12179, 68TH CONG., 2D
SESS.; S. 1912, 69TH CONG., 1ST SESS.; H.R. 6716, 69TH CONG., 1ST
SESS.; H.R. 8914, 69TH CONG., 1ST SESS.; H.R. 9285, 70TH CONG., 1ST
SESS.; S. 4377, 71ST CONG., 2D SESS.; H.R. 15428, 71ST CONG., 3D SESS.;
H.R. 16429, 71ST CONG., 3D SESS.; H.R. 17168, 71ST CONG., 3D SESS.;
H.R. 5065, 72D CONG., 1ST SESS.; S. 211, 72D CONG., 1ST SESS.; S. 4567,
72D CONG., 1ST SESS.; S. 1833, 73D CONG., 1ST SESS.; H.R. 129, 73D
CONG., 1ST SESS.; H.R. 8561, 73D CONG., 2D SESS.; H.R. 2028, 74TH
CONG., 1ST SESS.; S. 1043, 74TH CONG., 1ST SESS. 

FN3  H.R. 8561, 73D CONG., 2D SESS.; H.R. 12178, 68TH CONG., 2D
SESS. 

FN4  OTHER BILLS AFTER THOSE MENTIONED IN NOTE 2, ABOVE, ALSO OMITTED
THIS EXCEPTION.  SEE, E.G., H.R. 5373, 77TH CONG., 1ST SESS.; H.R.
1356, 78TH CONG., 1ST SESS.  THIS HAS NOTHING TO DO WITH "CONGRESSIONAL
AWARENESS" OF THE DOBSON AND BRADEY DECISIONS, INFRA.  THE PRESENT TORT
CLAIMS ACT CONTAINS EXCEPTIONS WHICH WOULD HAVE BEEN SPECIFICALLY
COVERED BY THOSE CASES.  SEC. 421(D). 

FN5  THE GOVERNMENT'S OTHER ARGUMENTS ON THIS PHASE OF THE CASE ARE
SLEEVELESS.  THEY WILL NOT BE DISCUSSED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS DISSENT,
SUBSTANTIALLY FOR THE REASONS SET FORTH BY JUDGE DOBIE, BELOW, 169 F.2D
840. 
..END :




JOHNSON V. SHAUGHNESSY, 336 U.S. 806 


NO. 506.  ARGUED APRIL 19-20, 1949.  - DECIDED MAY 9, 1949.  - 170 F.2D
1009, REVERSED. 


1.  A BOARD OF SPECIAL INQUIRY APPOINTED PURSUANT TO SEC. 17 OF THE
IMMIGRATION ACT OF 1917 AS AMENDED, 8 U.S.C. SEC. 153, IS BOUND TO
ACCEPT AS FINAL A CERTIFICATE THAT AN ALIEN IS A MENTAL DEFECTIVE OF A
CLASS EXCLUDED FROM ADMISSION TO THE UNITED STATES BY SEC. 3, 8 U.S.C.
SEC. 136(D), WHERE SUCH CERTIFICATE HAS BEEN ISSUED BY A MEDICAL APPEAL
BOARD AFTER A FAIR HEARING IN CONFORMITY WITH SEC. 16, 8 U.S.C. SEC.
152, AND REGULATIONS OF THE PUBLIC HEALTH SERVICE PRESCRIBED PURSUANT
THERETO.  P. 809. 

2.  A REPORT OF A MEDICAL APPEAL BOARD APPOINTED PURSUANT TO SEC. 16
OF THE IMMIGRATION ACT OF 1917 AS AMENDED, 8 U.S.C. SEC. 152, TO REVIEW
A FINDING OF TWO MEDICAL OFFICERS THAT AN ALIEN SEEKING ADMISSION TO
THE UNITED STATES IS MENTALLY DEFECTIVE, DOES NOT COMPLY WITH THE
APPLICABLE LAW AND REGULATIONS WHERE IT FAILS TO SHOW THAT THE APPEAL
BOARD BASED ITS FINDINGS AND CONCLUSION "ON ITS MEDICAL EXAMINATION OF
THE ALIEN" AND MERELY SHOWS THAT IT CONSIDERED THE APPEAL AND, AFTER
"TAKING INTO CONSIDERATION" THE CERTIFICATE OF THE MEDICAL OFFICERS WHO
MADE THE ORIGINAL EXAMINATION AND THE TESTIMONY OF AN ALIENIST EMPLOYED
BY THE ALIEN, CONCURRED IN THE REPORT OF THE MEDICAL OFFICERS WHO MADE
THE FIRST EXAMINATION.  PP. 809-812. 

(A)  THE APPEAL BOARD COULD NOT REST ITS FINDING THAT THE ALIEN WAS A
MENTAL DEFECTIVE ON THE CERTIFICATE OF THE ORIGINAL EXAMINING OFFICERS,
SINCE THE ACT AND REGULATIONS PRESCRIBE AN INDEPENDENT REVIEW AND RE
EXAMINATION.  P. 812. 

(B)  THE STATEMENT OF THE APPEAL BOARD THAT IT HAD "CONSIDERED THE
APPEAL" CAN NOT BE TREATED AS A CERTIFICATION THAT THE ALIEN HAD BEEN
GIVEN AN INDEPENDENT MEDICAL EXAMINATION.  P. 6. 

3.  ASSUMING, WITHOUT DECIDING, THAT DEFECTS IN THE APPEAL BOARD'S
REPORT COULD BE CURED BY ADDITIONAL DATA IN THE RECORD, THE DATA IN THE
RECORD IN THIS CASE IS NOT SUFFICIENT TO CURE THE DEFECT.  PP. 812
815. 

UNITED STATES EX REL. JOHNSON V. SHAUGHNESSY, ACTING DISTRICT DIRECTOR
OF IMMIGRATION AND NATURALIZATION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING CHALLENGING THE VALIDITY OF THE
DETENTION OF AN ALIEN UNDER AN EXCLUSION ORDER ISSUED BY A BOARD OF
SPECIAL INQUIRY UNDER THE IMMIGRATION ACT OF 1917 AS AMENDED, THE
DISTRICT COURT DISCHARGED THE WRIT AND ORDERED THE ALIEN REMANDED TO
THE IMMIGRATION AUTHORITIES.  82 F.SUPP.  36.  THE COURT OF APPEALS
AFFIRMED.  170 F.2D 1009.  THIS COURT GRANTED CERTIORARI.  336 U.S.
924.  REVERSED AND REMANDED, P. 815. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE AMERICAN FOREIGN SERVICE AT STOCKHOLM ISSUED TO PETITIONER AN
IMMIGRATION VISA TO COME TO THE UNITED STATES AS A SWEDISH QUOTA
IMMIGRANT.  ON THE GROUND THAT SHE WAS A MENTAL DEFECTIVE, AUTHORITIES
OF THE IMMIGRATION AND NATURALIZATION SERVICE DECLINED TO ADMIT HER
INTO THIS COUNTRY AND ORDERED HER DETENTION AT ELLIS ISLAND PENDING
DEPORTATION TO SWEDEN.  SHE FILED THIS HABEAS CORPUS PROCEEDING
CONTENDING THAT SHE WAS NOT A MENTAL DEFECTIVE AND CHALLENGING IN
SEVERAL RESPECTS THE LEGALITY OF THE EXCLUSION ORDER.  THE DISTRICT
COURT DISCHARGED THE WRIT AND ORDERED PETITIONER REMANDED TO THE
IMMIGRATION AUTHORITIES.  82 F.SUPP.  36.  THE COURT OF APPEALS
AFFIRMED, ONE JUDGE DISSENTING.  170 F.2D 1009.  CERTIORARI WAS GRANTED
BECAUSE IMPORTANT QUESTIONS WERE RAISED CONCERNING ADMINISTRATION OF
THE IMMIGRATION LAWS. 

THIS COUNTRY CERTAIN CLASSES OF ALIENS DEEMED UNDESIRABLE.  AMONG THOSE
EXCLUDED ARE PERSONS "WHO ARE FOUND TO BE AND ARE CERTIFIED BY THE
EXAMINING SURGEON AS BEING MENTALLY  ...  DEFECTIVE  ...  "  39 STAT.
874, 875, 8 U.S.C. SEC. 136(D).  SECTION 16 OF THE ACT  FN1  PROVIDES
THAT MENTAL EXAMINATIONS OF ARRIVING ALIENS SHALL BE MADE BY NOT LESS
THAN TWO UNITED STATES PUBLIC HEALTH SERVICE MEDICAL OFFICERS
ESPECIALLY TRAINED IN THE DIAGNOSIS OF INSANITY AND MENTAL DEFECTS. 
THE SAME SECTION AUTHORIZES AN APPEAL TO A SPECIAL BOARD OF MEDICAL
OFFICERS OF THE PUBLIC HEALTH SERVICE FOR ANY ALIEN WHO IS CERTIFIED BY
THE TWO MEDICAL OFFICERS AS A MENTAL DEFECTIVE.  FINALLY SEC. 17 OF THE
ACT AS AMENDED, 8 U.S.C. SEC. 153, PROVIDES THAT BOARDS OF SPECIAL
INQUIRY SHALL BE APPOINTED BY THE IMMIGRATION AND NATURALIZATION
SERVICE, SUBJECT TO APPROVAL OF THE ATTORNEY GENERAL.  THESE BOARDS OF
SPECIAL INQUIRY ARE GRANTED "AUTHORITY TO DETERMINE WHETHER AN ALIEN
WHO HAS BEEN DULY HELD SHALL BE ALLOWED TO LAND OR SHALL BE DEPORTED." 
IT WAS A BOARD OF SPECIAL INQUIRY OF THIS KIND THAT ORDERED PETITIONER
EXCLUDED FROM THE UNITED STATES. 

FIRST.  TWO MEDICAL OFFICERS OF THE PUBLIC HEALTH SERVICE SIGNED A
CERTIFICATE THAT PETITIONER WAS A MENTAL DEFECTIVE.  ON APPEAL A BOARD
OF THREE PUBLIC HEALTH MEDICAL OFFICERS AFFIRMED THE FINDING OF THIS
CERTIFICATE.  LATER WHEN HER CASE WAS UNDER CONSIDERATION BY A BOARD OF
SPECIAL INQUIRY OF THE IMMIGRATION AND NATURALIZATION SERVICE,
PETITIONER ASKED FOR TIME TO PRODUCE ADDITIONAL EVIDENCE TO SHOW THAT
SHE WAS NOT A MENTAL DEFECTIVE.  THE BOARD REFUSED TO HEAR SUCH
EVIDENCE HOLDING THAT IT WAS BOUND BY SEC. 17 OF THE IMMIGRATION ACT TO
ACCEPT AS FINAL THE MEDICAL CERTIFICATION THAT SHE WAS A MENTAL
DEFECTIVE.  PETITIONER CONTENDS THAT THIS HOLDING WAS ERROR WHICH
INVALIDATES THE EXCLUSION ORDER.  WE HOLD THAT THE COURT OF APPEALS
CORRECTLY REJECTED THIS CONTENTION. 

DECISION OF A BOARD OF SPECIAL INQUIRY SHALL BE BASED UPON THE
CERTIFICATE OF THE EXAMINING MEDICAL OFFICER AND  ... SHALL BE FINAL AS
TO THE REJECTION OF ALIENS AFFECTED WITH  ...  ANY MENTAL  ...
DISABILITY WHICH WOULD BRING SUCH ALIENS WITHIN ANY OF THE CLASSES
EXCLUDED FROM ADMISSION TO THE UNITED STATES UNDER SECTION THREE OF
THIS ACT."  WE AGREE WITH THE FOLLOWING STATEMENT OF THE COURT OF
APPEALS.  "A CERTIFICATE BY THE MEDICAL BOARD IF ITS ACTION CONFORMED
TO THE STATUTE AND REGULATIONS AND ITS DECISION WAS MADE AFTER A FAIR
HEARING WAS PLAINLY INTENDED TO BE CONCLUSIVE."  170 F.2D 1009, 1012. 
THIS CONCLUSION IS PARTICULARLY COMPELLING IN THE LIGHT OF THE
LEGISLATIVE HISTORY REFERRED TO IN THAT COURT'S OPINION.  WE THEREFORE
TURN TO THE MEDICAL CERTIFICATES TO CONSIDER THE CONTENTION THAT THEY
WERE NOT ISSUED AS THE RESULT OF THE KIND OF EXAMINATIONS REQUIRED BY
THE STATUTE AND REGULATIONS, AND THAT THE CERTIFICATES THEMSELVES
FAILED TO CONFORM TO THOSE REQUIREMENTS. 

SECOND.  PETITIONER ATTACKS THE VALIDITY OF BOTH THE INITIAL MEDICAL
CERTIFICATE AND THAT OF THE APPELLATE MEDICAL BOARD, CONTENDING THAT
THEY PROVIDE AN INADEQUATE BASIS FOR EXCLUDING HER FROM THE UNITED
STATES.  THE IMPORTANCE OF THESE MEDICAL CERTIFICATES IS UNDERSCORED BY
OUR HOLDING THAT CONGRESS HAS MADE THE FINDINGS AND CONCLUSIONS IN THE
CERTIFICATES FINAL ON THE QUESTION OF WHETHER AN ALIEN IS SO MENTALLY
DEFECTIVE THAT ADMISSION INTO THE COUNTRY MUST BE DENIED.  CONGRESS HAS
TAKEN NOTE OF THE CRUCIAL IMPORTANCE OF THIS MEDICAL DETERMINATION BY
PRESCRIBING CERTAIN MINIMUM PROCEDURAL REQUIREMENTS THAT THE PUBLIC
HEALTH SERVICE MUST FOLLOW, SUCH AS SPECIAL QUALIFICATIONS OF EXAMINING
DOCTORS, THE MINIMUM NUMBER OF DOCTORS THAT MUST EXAMINE THE APPLYING
ALIEN, AND THE RIGHT OF AN ALIEN TO HAVE AN INITIAL ADVERSE CERTIFICATE
REVIEWED BY A SPECIAL BOARD OF DOCTORS.  IN ORDER THAT FURTHER
SAFEGUARDS MIGHT BE PROVIDED, CONGRESS AUTHORIZED THE SURGEON GENERAL
OF THE PUBLIC HEALTH SERVICE TO PRESCRIBE ADDITIONAL REGULATIONS
GOVERNING THE PROCEDURE TO BE OBSERVED IN THE EXERCISE OF THAT
SERVICE'S EXCLUSIVE AUTHORITY OVER MEDICAL QUESTIONS. 

PURSUANT TO THIS STATUTORY AUTHORITY THE SURGEON GENERAL ISSUED
REGULATIONS WHICH DETAIL THE MANNER IN WHICH MEDICAL EXAMINATIONS SHALL
BE HELD AND THE TYPE OF CERTIFICATES BY WHICH EXAMINING DOCTORS AND
BOARDS SHALL REPORT THEIR FINDINGS AND CONCLUSIONS.  AS SHOWN BY THE
DISSENTING OPINION BELOW, SERIOUS CHALLENGES HAVE BEEN MADE TO THE
SUFFICIENCY OF THE CERTIFICATE OF THE MEDICAL APPEAL BOARD AS WELL AS
TO THE INITIAL MEDICAL CERTIFICATE IN WHICH TWO DOCTORS CERTIFIED
PETITIONER TO BE A MENTAL DEFECTIVE.  FN2  THE SHORTCOMINGS OF THE
INITIAL CERTIFICATE, HOWEVER, PROBABLY COULD HAVE BEEN RENDERED
HARMLESS BY A PROPER EXAMINATION AND CERTIFICATE BY THE MEDICAL BOARD
OF APPELLATE REVIEW.  SINCE OUR CONCLUSION IS THAT THE APPELLATE REVIEW
FAILED TO MEET THE REQUISITE STANDARDS PRESCRIBED BY STATUTE AND
REGULATIONS, WE NEED NOT CONSIDER THE CHALLENGES DIRECTED AGAINST THE
ORIGINAL CERTIFICATE STANDING ALONE. 

REGULATIONS OF THE PUBLIC HEALTH SERVICE PROVIDE THE WAY IN WHICH
MEDICAL APPEAL BOARDS SHALL BE CONVENED AND DETAIL A PROCEDURE FOR THE
BOARDS TO FOLLOW.  THE REGULATIONS IMPOSE A DUTY ON SUCH BOARDS "TO RE
EXAMINE AN ALIEN"; THEY FURTHER PROVIDE THAT "RE-EXAMINATION SHALL
INCLUDE  ...  A MEDICAL EXAMINATION BY THE BOARD"; THAT THE "FINDINGS
AND CONCLUSIONS OF THE BOARD SHALL BE BASED ON ITS MEDICAL EXAMINATION
OF THE ALIEN"; AND THAT "THE BOARD SHALL REPORT ITS FINDINGS AND
CONCLUSIONS TO THE IMMIGRATION SERVICE  ...  "  FN3  THE REPORT OF THE
MEDICAL APPEAL BOARD HERE SHOWS ONLY THAT IT "CONSIDERED THE APPEAL
...  AND AFTER TAKING INTO CONSIDERATION THE CERTIFICATE OF MAR. 11,
1948 AND THE TESTIMONY GIVEN BY DR. CARLTON SIMON, REPORTS THAT IT
CONCURS WITH THE ABOVE DATED CERTIFICATE."  THE REPORT OF THIS MEDICAL
BOARD THEREFORE WHOLLY FAILED TO SHOW ANY COMPLIANCE WITH THE
REQUIREMENT OF SEC. 34.13(G) THAT THE BOARD BASE ITS "FINDINGS AND
CONCLUSIONS  ...  ON ITS MEDICAL EXAMINATION OF THE ALIEN  ...  "  WE
THINK THE RECORD MAKES CLEAR THAT THE APPEAL BOARD MADE NO SUCH MEDICAL
EXAMINATION AS WAS REQUIRED BY THE REGULATIONS. 

THE REPORT ITSELF SHOWS THAT THE APPELLATE BOARD BASED ITS CONCLUSION
ON TWO CONSIDERATIONS: (1) THE INITIAL CERTIFICATE OF THE TWO PUBLIC
HEALTH DOCTORS; (2) TESTIMONY GIVEN BY DR. CARLTON SIMON.  BUT THE
APPELLATE BOARD COULD NOT REST ITS FINDING THAT PETITIONER WAS A MENTAL
DEFECTIVE ON THE ORIGINAL CERTIFICATE WITHOUT DENYING PETITIONER THE
INDEPENDENT REVIEW AND RE-EXAMINATION WHICH CONGRESS AND THE SURGEON
GENERAL HAD PRESCRIBED.  NOR COULD THE APPELLATE BOARD RELIEVE ITSELF
OF ITS DUTY TO MAKE AN INDEPENDENT RE-EXAMINATION BY RELYING ON THE
TESTIMONY OF DR. SIMON.  MOREOVER, DR. SIMON TESTIFIED THAT PETITIONER
WAS NOT A MENTAL DEFECTIVE.  HIS TESTIMONY WAS THAT SHE WAS "NORMAL." 
IT HARDLY SEEMS NECESSARY TO ADD THAT THE STATEMENT OF THE APPELLATE
BOARD THAT IT HAD "CONSIDERED THE APPEAL," CANNOT BE TREATED AS A
CERTIFICATION THAT PETITIONER HAD BEEN GIVEN AN INDEPENDENT MEDICAL
EXAMINATION.  WE THEREFORE HOLD THAT THE APPELLATE BOARD'S CERTIFICATE
IS AN INADEQUATE BASIS ON WHICH TO REST THE EXCLUSION ORDER OF THE
BOARD OF SPECIAL INQUIRY. 

THE GOVERNMENT CONTENDS, HOWEVER, THAT ADDITIONAL DATA IN THE RECORD
SHOWS THAT THE BOARD DID RE-EXAMINE THE PETITIONER.  WE MAY ASSUME
WITHOUT DECIDING THAT THE DEFECTS IN THE APPELLATE BOARD'S REPORT COULD
BE CURED BY ADDITIONAL RECORD DATA, BUT WE FIND NO SUCH DATA IN THE
RECORD SUFFICIENT TO CURE THE DEFECT.  THE DATA ON WHICH THE GOVERNMENT
RELIES IS CONTAINED IN A STENOGRAPHIC REPORT OF EVIDENCE GIVEN BY
PETITIONER AND DR. SIMON, PETITIONER'S WITNESS.  PETITIONER'S EVIDENCE,
LIKE THAT OF DR. SIMON, WAS AN EMPHATIC DENIAL OF ANY CONDITION WHICH
COULD JUSTIFY HER CLASSIFICATION AS A MENTAL DEFECTIVE.  THE
STENOGRAPHIC REPORT THUS FALLS FAR SHORT OF SHOWING THAT THE MEDICAL
APPEAL BOARD MADE AN INDEPENDENT MEDICAL EXAMINATION OF PETITIONER'S
MENTAL QUALITIES.  THAT REPORT TENDS TO CONFIRM THE FACT THAT THE
BOARD'S CONCLUSIONS WERE RESTED ONLY ON THE REPORT OF THE INITIAL
EXAMINATION BY THE TWO PUBLIC HEALTH SERVICE DOCTORS AND ON A REPORT OF
THE PHYSICIAN OF THE SHIP ON WHICH PETITIONER CAME TO THIS COUNTRY. 
THIS MAKES NECESSARY A SHORT STATEMENT CONCERNING THIS REPORT BY THE
SHIP'S DOCTOR AND THE CIRCUMSTANCES UNDER WHICH THE RECORD DISCLOSES
THAT REPORT WAS MADE. 

APPARENTLY THE SECOND DAY AFTER PETITIONER HAD COMMENCED HER VOYAGE
TO AMERICA THE SHIP'S DOCTOR VISITED HER.  HE FOUND HER WEAK AND
DIZZY.  SHE STATED THAT "SHE COULD NOT STAND THE SEA" AND WOULD NOT GO
TO THE DINING ROOM.  THE DOCTOR'S IMPRESSION AFTER HIS FIRST VISIT WAS
THAT SHE WAS SEASICK.  THE NEXT DAY, ACCORDING TO THE DOCTOR'S REPORT,
SHE ADMITTED HALLUCINATIONS, STATING THAT AT NIGHT SHE HEARD CRIES AND
SAW FACES, SAID SHE HAD GIVEN THE CONSUL "WRONG INFORMATION," AND
THOUGHT THIS SINFUL.  AT THIS TIME THE SHIP'S DOCTOR WROTE DOWN HIS
"IMPRESSION OF AN INCIPIENT PSYCHOSIS" AND TRANSFERRED HER TO THE
ISOLATION WARD OF THE SHIP'S HOSPITAL.  THE NEXT DAY ACCORDING TO THE
DOCTOR, PETITIONER STATED THAT SHE HAD BEEN TREATED FOR INSANITY AT HER
HOME IN SWEDEN FOR A SIX-MONTH PERIOD TWO YEARS BEFORE.  ON THE LAST
DAY OF THE SEA TRIP, THE SHIP'S DOCTOR REPORTED THAT SHE HAD CLEARED UP
"REMARKABLY," THAT SHE HAD NO RECOLLECTION OF "A LOT OF STRANGE THINGS
SHE HAD SAID BEFORE," WAS SLEEPING WELL, DENIED HAVING ANY
HALLUCINATIONS, AND LOOKED "CONSIDERABLY BETTER." 

IN HER EVIDENCE BEFORE THE MEDICAL BOARD PETITIONER STATED THAT SHE
SPOKE "TERRIBLY BAD ENGLISH"; THAT PRIOR TO BOARDING THE SHIP SHE HAD
BEEN TO A NUMBER OF PARTIES AND WAS VERY TIRED WHEN SHE CAME ABOARD;
THAT AFTER COMING ABOARD AND DURING THE VOYAGE SHE HAD TAKEN BROMIDES
AND SLEEPING TABLETS; AND THAT IN HER CONDITION SHE JUST SLEPT AND SAID
"YES" TO EVERY QUESTION THE DOCTOR ASKED. 

FROM THE FOREGOING IT APPEARS THAT THE DATA RELIED ON BY THE
GOVERNMENT WAS TOTALLY INADEQUATE TO SHOW THAT THE APPELLATE MEDICAL
BOARD "RE-EXAMINED" PETITIONER.  THE SUM TOTAL OF THAT DATA IS
TESTIMONY GIVEN BY PETITIONER AND HER MEDICAL SPECIALIST TO THE EFFECT
THAT PETITIONER WAS MENTALLY NORMAL, PLUS PETITIONER'S ADMISSIONS THAT
WHILE SEASICK AND UNDER THE INFLUENCE OF DRUGS SHE HAD SAID THINGS THAT
PROMPTED THE SHIP'S DOCTOR AT ONE TIME TO SUSPECT "INCIPIENT
PSYCHOSIS." 

SO FAR AS THE MEDICAL FINDINGS AND EVIDENCE HERE SHOW, THE DAILY
REPORTS MADE BY THE SHIP'S DOCTOR WHILE PETITIONER WAS A PASSENGER
CONSTITUTE THE ONLY AFFIRMATIVE EVIDENCE THAT PETITIONER IS OR WAS A
MENTAL DEFECTIVE.  THE PUBLIC HEALTH REGULATIONS PLAINLY PROHIBIT THE
ISSUANCE OF EXCLUSION ORDERS RESTING ON NOTHING BUT A SINGLE EPISODE
REPORTED BY A NON-PUBLIC-HEALTH DOCTOR.  FOR CONGRESS HAS PROVIDED THAT
BEFORE ALIENS SUSPECTED OF MENTAL DEFECTS ARE EXCLUDED, FINDINGS AND
CONCLUSIONS SHALL BE MADE BY PUBLIC HEALTH DOCTORS BASED ON THEIR OWN
EXAMINATIONS MADE IN COMPLIANCE WITH PROCEDURAL SAFEGUARDS DEFINED OR
AUTHORIZED BY CONGRESS.  MEDICAL CERTIFICATES BARRING ALIENS ARE EVEN
THEN TO BE ISSUED "ONLY IF THE PRESENCE OF SUCH  ... DEFECT IS CLEARLY
ESTABLISHED."  42 CODE FED. REG. SEC. 34.4(1947 SUPP.).  AND SUCH
CERTIFICATES "SHALL IN NO CASE BE ISSUED WITH RESPECT TO AN ALIEN
HAVING ONLY MENTAL SHORTCOMINGS DUE TO IGNORANCE, OR SUFFERING ONLY
FROM A MENTAL CONDITION ATTRIBUTABLE TO REMEDIAL PHYSICAL CAUSES, OR
FROM A PSYCHOSIS OF A TEMPORARY NATURE CAUSED BY A TOXIN, DRUG, OR
DISEASE."  42 CODE FED. REG. SEC. 34.7(1947 SUPP.).  SO FAR AS APPEARS
FROM THE APPELLATE CERTIFICATE HERE, THE BOARD MADE NO EXAMINATION TO
DETERMINE WHETHER THE SHIP EPISODE, AS REPORTED BY THE PHYSICIAN, WAS
THE RESULT OF PETITIONER'S IGNORANCE OF ENGLISH PLUS TEMPORARY DEBILITY
OR WAS THE RESULT OF A MENTAL DEFECT JUSTIFYING EXCLUSION.  EVEN THE
REPORT OF THE SHIP PHYSICIAN CONTAINED NO FINDING ON THIS POINT, AND IT
IS NOT AMISS TO ADD THAT THE VERIFIED PETITION FOR HABEAS CORPUS
CONTAINS AN UNDENIED ALLEGATION THAT THE SHIP'S DOCTOR HAS NOW STATED
THAT "IN HIS OPINION THE ALIEN IS NOT MENTALLY DEFECTIVE."    OUR
HOLDING THAT THE APPELLATE BOARD'S MEDICAL CERTIFICATE AND ADDITIONAL
DATA ARE INADEQUATE TO SUPPORT THE EXCLUSION ORDER MAKES IT UNNECESSARY
TO DECIDE OTHER QUESTIONS RELATING TO APPLICABILITY OF THE
ADMINISTRATIVE PROCEDURE ACT TO HEARINGS BEFORE THE BOARD OF SPECIAL
INQUIRY.  60 STAT. 237, 239, 5 U.S.C. SECS. 1001, 1004. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR ENTRY OF AN ORDER AFFORDING PETITIONER A PROPER HEARING AND
MEDICAL EXAMINATION BEFORE THE APPROPRIATE PUBLIC HEALTH AUTHORITIES. 
REVERSED AND REMANDED. 

FN1  39 STAT. 885, AS AMENDED, 8 U.S.C. SEC. 152. 

FN2 DURING THE HEARINGS BEFORE THE BOARD OF SPECIAL INQUIRY COUNSEL
FOR PETITIONER STATED TO THIS BOARD "THAT FROM AN EXAMINATION OF THE
RECORD IT APPEARS THAT THE ONLY POSITIVE FINDING OF MENTAL
DEFECTIVENESS APPEARS IN THE RECORD OF THE SHIP'S SURGEON  ...  "
COUNSEL INSISTED THAT PETITIONER WAS SUFFERING FROM NO "MENTAL
DISTURBANCE WHATSOEVER."  IN HER BEHALF HE ASKED FOR AN OPPORTUNITY TO
PRODUCE FURTHER MEDICAL TESTIMONY.  IN RESPONSE TO THIS REQUEST THE
BOARD'S CHAIRMAN ASKED COUNSEL WHETHER PETITIONER WOULD BE ABLE TO BEAR
THE EXPENSES OF HER CONTINUED DETENTION SHOULD THE BOARD GRANT HER
REQUEST FOR AN OPPORTUNITY TO PRODUCE FURTHER MEDICAL TESTIMONY. 
COUNSEL REPLIED THAT HE BELIEVED SHE COULD.  THE BOARD IMMEDIATELY
THEREAFTER CLOSED THE HEARING, MADE ITS FINDINGS AND ORDERED HER
EXCLUDED. 

THE DISSENTING OPINION STATED:  "I WOULD REVERSE THE ORDER AND DIRECT
THAT THE WRIT BE SUSTAINED BECAUSE OF INADEQUACY OF THE ORIGINAL
CERTIFICATE OF THE EXAMINING SURGEONS AND TOTAL FAILURE OF THE
REVIEWING BOARD OF MEDICAL OFFICERS TO COMPLY WITH THE REGULATIONS." 
170 F.2D 1009, 1014. 

FN3  "(C)  RE-EXAMINATION SHALL INCLUDE: 

"(1)  A MEDICAL EXAMINATION BY THE BOARD; 

"(2)  A REVIEW OF ALL RECORDS SUBMITTED; 

"(3)  USE OF ANY LABORATORY OR DIAGNOSTIC METHODS OR TESTS DEEMED
ADVISABLE; AND 

"(4)  CONSIDERATION OF STATEMENTS REGARDING THE ALIEN'S PHYSICAL OR
MENTAL CONDITION MADE BY A REPUTABLE PHYSICIAN AFTER HIS EXAMINATION OF
THE ALIEN. 

     .         .         .       .         . 

"(E)  AN ALIEN BEING RE-EXAMINED MAY INTRODUCE AS WITNESSES BEFORE
THE BOARD SUCH PHYSICIANS OR MEDICAL EXPERTS AS THE BOARD MAY IN ITS
DISCRETION PERMIT, AT HIS OWN COST AND EXPENSE,  ...  " 42 CODE FED.
REG. SEC. 34.13(1947 SUPP.). 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE BURTON
JOIN, DISSENTING. 

THIS COURT AFFIRMS THE DECISION THAT A PROPER MEDICAL FINDING OF A
PHYSICAL DEFECT WHICH EXCLUDES AN ALIEN FROM ENTRANCE INTO THE UNITED
STATES IS FINAL AND NOT SUBJECT TO FURTHER INQUIRY.  WITH THE COURT'S
RULING ON THIS POINT, I AGREE. 

(1)  THE REVERSAL OF THE DISMISSAL OF THE WRIT OF HABEAS CORPUS IS
FOUNDED ON THE COURT'S PREMISE THAT THE REPORT OF THE REVIEWING BOARD
OF MEDICAL OFFICERS "SHOWS THAT THE APPELLATE BOARD BASED ITS
CONCLUSION ON TWO CONSIDERATIONS:  (1) THE INITIAL CERTIFICATE OF THE
TWO PUBLIC HEALTH DOCTORS; (2) TESTIMONY GIVEN BY DR. CARLTON SIMON (A
PSYCHIATRIST CHOSEN BY THE ALIEN)."  THE COURT THEN CONCLUDES THAT "THE
APPELLATE BOARD COULD NOT REST ITS FINDING THAT PETITIONER WAS A MENTAL
DEFECTIVE ON THE ORIGINAL CERTIFICATE WITHOUT DENYING PETITIONER THE
INDEPENDENT REVIEW AND RE-EXAMINATION WHICH CONGRESS AND THE SURGEON
GENERAL HAD PRESCRIBED."  THAT IS TO SAY, THE REPORT, AS THE COURT
PHRASES IT, "MAKES CLEAR THAT THE APPEAL BOARD MADE NO SUCH MEDICAL
EXAMINATION AS WAS REQUIRED BY THE REGULATIONS."  FN1  MY READING OF
THE OPINION IS THAT THE COURT THINKS THE RECORD AFFIRMATIVELY SHOWS A
FAILURE TO COMPLY WITH THE STATUTE AND REGULATION SEC. 34.13(G) AND (H)
AS TO FINDINGS AND EXAMINATION.  FN2 

THERE IS A SUGGESTION THAT A MEDICAL APPEAL BOARD MUST CERTIFY THAT
THE ALIEN HAD BEEN EXAMINED.  FN3  I ASSUME, HOWEVER, THAT IF THE COURT
INTENDED TO REQUIRE SPECIFIC CERTIFICATION BY THE MEDICAL BOARD OF THE
STEPS LEADING TO ITS FINDINGS AND CONCLUSIONS IT WOULD HAVE MADE SUCH A
HOLDING DEFINITIVE. 

I DISAGREE WITH THE COURT'S INTERPRETATION OF THE REPORT.  A STRONG
PRESUMPTION EXISTS THAT PUBLIC OFFICIALS PERFORM THEIR DUTY.  IF THE
REPORT HAD ADDED THE PHRASE, "IN ACCORDANCE WITH THE REGULATIONS,"
AFTER THE WORD "CONSIDERED," THERE COULD BE NO DOUBT AS TO THE
SUFFICIENCY OF THE REPORT.  THE PRESUMPTION OF REGULARITY UNTIL
REBUTTED REQUIRES COURTS TO ADOPT SUCH AN INTERPRETATION.  FN4  THE
STATEMENT OF THE BOARD OF MEDICAL OFFICERS THAT IT "HAS CONSIDERED THE
APPEAL" MEANS TO ME THAT THE BOARD HAS PROCEEDED CONFORMABLY TO THE
STATUTE AND REGULATIONS. 

(2)  THERE IS A GRAVER ERROR IN THE COURT'S HOLDING, HOWEVER, WHICH
MAY INTERFERE WITH SOUND ADMINISTRATIVE PROCEDURE.  ALTHOUGH PETITIONER
WAS REPRESENTED BY COUNSEL, NO OBJECTION TO THE FORM OF THE REPORT WAS
MADE DURING THE ADMINISTRATIVE PROCESS.  THIS CASE HERETOFORE HAS
CENTERED AROUND THE ISSUE OF FINALITY DISPOSED OF BY THE COURT.  EVEN
IN THE SEVERAL HEARINGS OF HER EFFORT TO GET RELIEF BY HABEAS CORPUS,
PETITIONER HAS NEVER ASSERTED, IN THIS OR ANY OTHER COURT, THAT SHE WAS
NOT EXAMINED BY THE PHYSICIANS OF THE MEDICAL REVIEW BOARD.  THIS IS
MADE PLAIN BY THE COURT'S STATEMENT OF THE GENERALIZED OBJECTIONS ON
OTHER GROUNDS TO THE REPORT OF THE MEDICAL REVIEW BOARD, SEE OPINION AT
NOTE 2, AND FROM THE AFFIDAVITS AND OBJECTIONS APPEARING IN THE
RECORD.  THE DISSENTING JUDGE, 170 F.2D 1009, 1013, DID NOT REFER TO
THE FAILURE TO EXAMINE PETITIONER.  HE SPOKE ONLY OF THE FAILURE OF THE
BOARD OF SPECIAL INQUIRY AND THE MEDICAL BOARD TO REQUIRE ADEQUATE AND
REVEALING CERTIFICATES AND REPORTS.  EVEN THE PETITION FOR CERTIORARI
DOES NOT PRESENT THE QUESTION.  THE BRIEF DOES NOT DISCUSS IT. 

THE ADMINISTRATIVE REMEDY MUST BE EXHAUSTED BY FAIR EFFORT TO CORRECT
ADMINISTRATIVE ERRORS BEFORE RESORT TO HABEAS CORPUS OR OTHER JUDICIAL
REMEDIES.  FN5  TO PERMIT OCCASIONAL REVERSAL OF ADMINISTRATIVE ORDERS
ON POINTS NOT BROUGHT TO THE ATTENTION OF THE AGENCY HAMPERS
ADMINISTRATIVE ROUTINE AND, IF ADOPTED AS A RULE OF LAW, WOULD
DISORGANIZE ADMINISTRATIVE PROCEDURE.  AFTERTHOUGHT CANNOT TAKE THE
PLACE OF REQUIRED OBJECTION.  THIS IS NOT A CASE WHERE RULES OF
PRACTICE AND PROCEDURE DEFEAT THE ENDS OF JUSTICE.  FN6  THERE IS
NOTHING IN THIS RECORD TO INDICATE THAT DISABILITIES OF PETITIONER, OR
DIFFICULTIES OF PROCEDURE OR PRACTICE, THE EMERGENCE OF A NEW RULE OF
LAW OR ANY OTHER CHANGE OF CIRCUMSTANCE HAS AFFECTED THE COURSE OF
PETITIONER'S PLEAS.  SHE HAS HAD ADVANTAGE OF EVERY METHOD OF RELIEF
KNOWN TO THE LAW BUT HAS NOT SEEN FIT TO BRING FORWARD THE GROUND UPON
WHICH THIS COURT REVERSES. 

IT IS OBVIOUS THAT HAD OBJECTION BEEN MADE TO THE FORM OF THE REPORT
OF THE BOARD OF MEDICAL OFFICERS AT THE HEARING BEFORE THE BOARD OF
SPECIAL INQUIRY, APRIL 6, 1948, A PROMPT ELABORATION OF THE REPORT
COULD HAVE BEEN OBTAINED OR, IF NO EXAMINATION SUCH AS IS REQUIRED BY
THE REGULATIONS HAD ALREADY BEEN MADE, IT COULD HAVE BEEN DONE
PROMPTLY.  PROPER ADMINISTRATIVE PROCEDURE REQUIRES THAT OBJECTION TO
CERTIFICATES BE MADE AT THE EARLIEST OPPORTUNITY WHICH IN THIS CASE WAS
DURING THE ADMINISTRATIVE HEARING BEFORE THE BOARD OF SPECIAL INQUIRY. 
A LITIGANT'S UNEXPLAINED FAILURE TO RAISE AN ISSUE DOES NOT JUSTIFY
CAPRICIOUS JUDICIAL INTERVENTION ON BEHALF OF AN INDIVIDUAL. 

I WOULD AFFIRM THE JUDGMENT BELOW. 

FN1 THE REPORT READS AS FOLLOWS: 

"PURSUANT TO THE REQUEST OF THE DISTRICT DIRECTOR OF IMMIGRATION AND
THE ORDER OF THE MEDICAL OFFICER IN CHARGE, THE FOLLOWING BOARD OF
MEDICAL OFFICERS OF THE U.S. PUBLIC HEALTH SERVICE, HAS CONSIDERED THE
APPEAL REGARDING SUBJECT-NAMED ALIEN MAY GUNBORG JOHNSON AND AFTER
TAKING INTO CONSIDERATION THE CERTIFICATE OF MAR. 11, 1948 AND THE
TESTIMONY GIVEN BY DR. CARLTON SIMON, REPORTS THAT IT CONCURS WITH THE
ABOVE DATED CERTIFICATE." 

FN2  39 STAT. 885, AS AMENDED, 8 U.S.C. SEC. 152: 

"SEC. 16.  THE PHYSICAL AND MENTAL EXAMINATION OF ALL ARRIVING ALIENS
SHALL BE MADE BY MEDICAL OFFICERS OF THE UNITED STATES PUBLIC HEALTH
SERVICE WHO SHALL CONDUCT ALL MEDICAL EXAMINATIONS AND SHALL CERTIFY,
FOR THE INFORMATION OF THE IMMIGRATION OFFICERS AND THE BOARDS OF
SPECIAL INQUIRY HEREINAFTER PROVIDED FOR, ANY AND ALL PHYSICAL AND
MENTAL DEFECTS OR DISEASES OBSERVED BY SAID MEDICAL OFFICERS IN ANY
SUCH ALIEN; ...  ANY ALIEN CERTIFIED FOR INSANITY OR MENTAL DEFECT MAY
APPEAL TO THE BOARD OF MEDICAL OFFICERS OF THE UNITED STATES PUBLIC
HEALTH SERVICE, WHICH SHALL BE CONVENED BY THE SURGEON GENERAL OF THE
UNITED STATES PUBLIC HEALTH SERVICE, AND SAID ALIEN MAY INTRODUCE
BEFORE SUCH BOARD ONE EXPERT MEDICAL WITNESS AT HIS OWN COST AND
EXPENSE.  ...  " 

42 C.F.R. SEC. 34.13(1947 SUPP.).  "RE-EXAMINATION; CONVENING OF
BOARDS; EXPERT WITNESSES; REPORTS.  (A)  THE SURGEON GENERAL, OR WHEN
AUTHORIZED, A MEDICAL OFFICER IN CHARGE, SHALL CONVENE A BOARD OF
MEDICAL OFFICERS TO RE-EXAMINE AN ALIEN 

     .         .         .        .         . 

"(2)  UPON AN APPEAL BY THE ALIEN FROM A CERTIFICATE OF INSANITY OR
MENTAL DEFECT, ISSUED AT A PORT OF ENTRY. 

     .         .         .         .         . 

"(C)  RE-EXAMINATION SHALL INCLUDE: 

"(1)  A MEDICAL EXAMINATION BY THE BOARD; 

"(2)  A REVIEW OF ALL RECORDS SUBMITTED; 

"(3)  USE OF ANY LABORATORY OR DIAGNOSTIC METHODS OR TESTS DEEMED
ADVISABLE; AND 

"(4)  CONSIDERATION OF STATEMENTS REGARDING THE ALIEN'S PHYSICAL OR
MENTAL CONDITION MADE BY A REPUTABLE PHYSICIAN AFTER HIS EXAMINATION OF
THE ALIEN. 

.         .         .         .         . 

"(G)  THE FINDINGS AND CONCLUSIONS OF THE BOARD SHALL BE BASED ON ITS
MEDICAL EXAMINATION OF THE ALIEN AND ON THE EVIDENCE PRESENTED TO IT
AND MADE A PART OF THE RECORD OF ITS PROCEEDINGS. 

"(H)  THE BOARD SHALL REPORT ITS FINDINGS AND CONCLUSIONS TO THE
IMMIGRATION SERVICE, AND SHALL ALSO GIVE PROMPT NOTICE THEREOF TO THE
ALIEN IF THE RE-EXAMINATION HAS BEEN HELD UPON HIS APPEAL.  THE BOARD'S
REPORT TO THE IMMIGRATION SERVICE SHALL SPECIFICALLY AFFIRM, MODIFY, OR
REJECT THE FINDINGS AND CONCLUSIONS OF PRIOR EXAMINING MEDICAL
OFFICERS." 

IT WILL BE NOTED THAT THE EVIDENCE PRESENTED TO THE BOARD WAS MADE A
PART OF THE REPORT TO THE BOARD OF SPECIAL INQUIRY AS REQUIRED BY THE
REGULATION. 

FN3  "IT HARDLY SEEMS NECESSARY TO ADD THAT THE STATEMENT OF THE
APPELLATE BOARD THAT IT HAD 'CONSIDERED THE APPEAL,' CANNOT BE TREATED
AS A CERTIFICATION THAT PETITIONER HAD BEEN GIVEN AN INDEPENDENT
MEDICAL EXAMINATION." 

FN4  LEWIS V. UNITED STATES, 279 U.S. 63, 73:  "IT IS THE SETTLED
GENERAL RULE THAT ALL NECESSARY PREREQUISITES TO THE VALIDITY OF
OFFICIAL ACTION ARE PRESUMED TO HAVE BEEN COMPLIED WITH, AND THAT WHERE
THE CONTRARY IS ASSERTED IT MUST BE AFFIRMATIVELY SHOWN." 

STEARNS CO. V. UNITED STATES, 291 U.S. 54, 63, AND AUTHORITIES CITED;
UNITED STATES V. CHEMICAL FOUNDATION, 272 U.S. 1, 14. 

FN5  WE REFUSED TO REVIEW AN ISSUE NOT RAISED BEFORE AN
ADMINISTRATIVE BODY IN UNEMPLOYMENT COMMISSION V. ARAGON, 329 U.S. 143,
155:  "A REVIEWING COURT USURPS THE AGENCY'S FUNCTION WHEN IT SETS
ASIDE THE ADMINISTRATIVE DETERMINATION UPON A GROUND NOT THERETOFORE
PRESENTED AND DEPRIVES THE COMMISSION OF AN OPPORTUNITY TO CONSIDER THE
MATTER, MAKE ITS RULING, AND STATE THE REASONS FOR ITS ACTION."  TRI
STATE BROADCASTING CO. V. F.C.C., 107 F.2D 956, 958.  CF. MYERS V.
BETHLEHEM CORP., 303 U.S. 41, 51, NOTE 9; BLAIR V. OESTERLEIN CO., 275
U.S. 220. 

THE ADMINISTRATIVE PROCEDURE ACT CONTEMPLATES PRESENTATION BEFORE THE
ADMINISTRATIVE AGENCY OF EVERY ISSUE THAT MAY BE MADE THE SUBJECT OF
JUDICIAL REVIEW BY HABEAS CORPUS OR APPELLATE PROCESS.  60 STAT. 237,
SECS. 7(C), 8(B)(2), 10(B), (C) AND (E).  THE RULE AGAINST RAISING
QUESTIONS ON JUDICIAL REVIEW THAT WERE NOT RAISED IN ADMINISTRATIVE
PROCEEDINGS HAS GENERAL APPLICATION, SEE CALDARONE V. ZONING BOARD OF
REVIEW, 74 R.I. 196, 199, 60 A.2D 158, 159; REISBERG V. BOARD OF
STANDARDS AND APPEALS, 81 N.Y.S.2D 511, 513; GENERAL TRANSP.  CO. V.
UNITED STATES, 65 F.SUPP.  981, 984. 

FN6  CF. HORMEL V. HELVERING, 312 U.S. 552, 557. 
..END :










UNITED STATES V. WALLACE CO., 336 U.S. 793 


NO. 416.  ARGUED MARCH 29, 1949.  - DECIDED MAY 2, 1949.  - REVERSED. 


IN A GRAND JURY PROCEEDING WHICH RESULTED IN THE INDICTMENT OF
APPELLEES FOR VIOLATIONS OF THE SHERMAN ACT, THEY WERE REQUIRED TO
PRODUCE CERTAIN DOCUMENTS PURSUANT TO A SUBPOENA OBTAINED AND SERVED IN
A PROPER MANNER, AND THE DISTRICT COURT RULED THAT IT WAS NOT SO BROAD
AND SWEEPING AS TO CONSTITUTE AN UNREASONABLE SEARCH AND SEIZURE. 
LATER THE INDICTMENT WAS DISMISSED AND THE SUBPOENAED DOCUMENTS AND
PHOTOSTATIC COPIES THEREOF WERE ORDERED RETURNED TO APPELLEES, SOLELY
BECAUSE WOMEN WERE EXCLUDED FROM THE GRAND JURY.  IN A CIVIL PROCEEDING
CHARGING APPELLEES WITH VIOLATIONS OF THE SHERMAN ACT, THE DISTRICT
COURT DENIED A MOTION AND QUASHED A SUBPOENA TO REQUIRE PRODUCTION OF
THE SAME DOCUMENTS, SOLELY BECAUSE OF THE ACTIONS TAKEN IN THE CRIMINAL
PROCEEDING.  IN A TRIAL IN THE CIVIL PROCEEDING, THE GOVERNMENT
INTRODUCED SUCH EVIDENCE AS IT HAD, INDICATED THAT THIS WAS
INSUFFICIENT BECAUSE OF THE EXCLUSION OF THE SUBPOENAED DOCUMENTS, BUT
REQUESTED THE COURT TO ENTER JUDGMENT FOR THE GOVERNMENT.  THE TRIAL
COURT DISMISSED THE SUIT WITHOUT PREJUDICE.  HELD: 

1.  DISMISSAL OF THE INDICTMENT BECAUSE NO WOMEN WERE ON THE GRAND
JURY WAS NO SUFFICIENT REASON FOR HOLDING THAT THE GOVERNMENT WAS
BARRED FROM MAKING USE OF THE SUBPOENAED DOCUMENTS IN A FUTURE VALID
PROCEEDING.  SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385,
DISTINGUISHED.  PP. 795-800. 

2.  FAILURE OF THE GOVERNMENT TO APPEAL FROM THE ORDERS IN THE
CRIMINAL PROCEEDING DISMISSING THE INDICTMENT AND REQUIRING THE RETURN
OF THE DOCUMENTS AND PHOTOSTATIC COPIES THEREOF DID NOT BAR THE
GOVERNMENT BY THE DOCTRINE OF RES JUDICATA FROM HAVING THE DOCUMENTS
PRODUCED IN THE CIVIL PROCEEDING.  PP. 800-801. 

3.  ANOTHER ORDER OF THE DISTRICT COURT "PRECLUDING AND RESTRAINING
THE UNITED STATES FROM USING IN ANY WAY OR FOR ANY PURPOSE ANY
KNOWLEDGE, INFORMATION OR EVIDENCE OBTAINED FROM OR CONTAINED IN" ANY
OF THE SUBPOENAED DOCUMENTS WAS INTENDED TO APPLY ONLY TO THE CRIMINAL
PROCEEDING AND DID NOT BAR THEIR USE IN THE CIVIL PROCEEDING.  PP. 801
803. 

4.  THAT THE DISMISSAL OF THE CIVIL PROCEEDING WAS WITHOUT PREJUDICE
TO FILING ANOTHER SUIT DID NOT MAKE THE CAUSE UNAPPEALABLE, FOR DENIAL
OF RELIEF AND DISMISSAL OF THE CASE ENDED THIS SUIT SO FAR AS THE
DISTRICT COURT WAS CONCERNED.  PP. 794-795, N. 1. 

UNITED STATES V. WALLACE & TIERNAN CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND. 

IN A CIVIL PROCEEDING CHARGING VIOLATIONS OF THE SHERMAN ACT, THE
DISTRICT COURT DECLINED TO REQUIRE THE PRODUCTION OF CERTAIN BOOKS AND
DOCUMENTS PREVIOUSLY PRODUCED BEFORE A GRAND JURY IN A CRIMINAL
PROCEEDING AND ORDERED RETURNED BECAUSE THE GRAND JURY WAS IMPROPERLY
CONSTITUTED.  IT DISMISSED THE CIVIL PROCEEDING WITHOUT PREJUDICE.  ON
APPEAL TO THIS COURT, REVERSED, P. 803. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE BASIC QUESTION HERE IS WHETHER THE FOURTH AMENDMENT'S PROHIBITION
OF UNREASONABLE SEARCHES AND SEIZURES BARS THE UNITED STATES FROM
UTILIZING CERTAIN DOCUMENTARY EVIDENCE IN THIS CIVIL ANTITRUST
PROCEEDING INSTITUTED IN THE UNITED STATES DISTRICT COURT OF RHODE
ISLAND.  SUBSIDIARY PROCEDURAL QUESTIONS INVOLVE THE DOCTRINE OF RES
JUDICATA.  FN1  WE PROCEED AT ONCE TO CONSIDERATION OF THE IMPORTANT
BASIC QUESTION SINCE FOR REASONS LATER GIVEN WE REJECT THE SUBSIDIARY
RES JUDICATA CONTENTIONS. 

FIRST.  WHETHER THE GOVERNMENT HAS A RIGHT TO UTILIZE THE DOCUMENTARY
EVIDENCE IN THIS CIVIL PROCEEDING CAN BE BEST UNDERSTOOD BY AN
IMMEDIATE REFERENCE TO THIS COURT'S HOLDING IN SILVERTHORNE LUMBER CO.
V. UNITED STATES, 251 U.S. 385.  APPELLEES HERE CONTEND THAT THE
SILVERTHORNE HOLDING IS A COMPLETE AND PERMANENT BAR TO THE
GOVERNMENT'S INTRODUCTION OF THE DOCUMENTS AS EVIDENCE, TO THE USE OF
THE DOCUMENTS TO OBTAIN OTHER EVIDENCE, OR FOR ANY OTHER PURPOSE. 

THE FACTS IN THE SILVERTHORNE CASE AS FOUND BY THIS COURT WERE THESE:
THE SILVERTHORNES HAVING BEEN INDICTED WERE ARRESTED AT THEIR HOMES
EARLY IN THE MORNING AND DETAINED IN CUSTODY FOR SOME HOURS.  WHILE SO
DETAINED GOVERNMENT OFFICERS "WITHOUT A SHADOW OF AUTHORITY" WENT TO
THE OFFICE OF THEIR COMPANY AND MADE A CLEAN SWEEP OF ALL THE BOOKS,
PAPERS AND DOCUMENTS FOUND THERE.  "ALL THE EMPLOYEES WERE TAKEN OR
DIRECTED TO GO TO THE OFFICE OF THE DISTRICT ATTORNEY OF THE UNITED
STATES TO WHICH ALSO THE BOOKS, &C., WERE TAKEN AT ONCE."  THE DISTRICT
COURT ORDERED ALL BOOKS, ETC., RETURNED ON A FINDING THAT THE SEARCH
AND SEIZURE VIOLATED THE CONSTITUTIONAL RIGHTS OF THE PARTIES. 
PHOTOGRAPHS AND COPIES OF THE PAPERS HAVING BEEN MADE, A NEW INDICTMENT
WAS RETURNED BASED UPON THE KNOWLEDGE THUS OBTAINED.  SUBPOENAS WERE
THEN ISSUED CALLING FOR PRODUCTION OF THE ORIGINAL PAPERS.  UPON
REFUSAL TO PRODUCE, ONE OF THE SILVERTHORNES WAS IMPRISONED FOR
CONTEMPT. 

THIS COURT VIEWED THE WHOLE PERFORMANCE OF THE UNLAWFUL SEARCH AND
SEIZURE OF THE SILVERTHORNE BOOKS AND PAPERS AS AN "OUTRAGE," PLANNED
OR AT LEAST RATIFIED BY THE GOVERNMENT.  UNDER THESE CIRCUMSTANCES IT
WAS HELD THAT THE GOVERNMENT WAS NEITHER ENTITLED TO USE THE ORIGINAL
DOCUMENTS NOR ANY KNOWLEDGE OBTAINED FROM THE ORIGINALS, THE
PHOTOSTATS, OR THE COPIES.  THE RULE ANNOUNCED WAS THAT EVIDENCE OR
KNOWLEDGE "GAINED BY THE GOVERNMENT'S OWN WRONG" IS NOT MERELY
FORBIDDEN TO BE "USED BEFORE THE COURT BUT THAT IT SHALL NOT BE USED AT
ALL."  OTHER CASES IN THIS COURT HAVE APPLIED THE SAME RULE.  FN2  IT
IS AN EXTRAORDINARY SANCTION, JUDICIALLY IMPOSED, TO LIMIT SEARCHES AND
SEIZURES TO THOSE CONDUCTED IN STRICT COMPLIANCE WITH THE COMMANDS OF
THE FOURTH AMENDMENT. 

IN THE CASE BEFORE US, HOWEVER, UNITED STATES OFFICERS DID NOT GO TO
THE APPELLEES' OFFICES AND SEIZE THEIR DOCUMENTS.  OFFICERS SERVED A
COURT SUBPOENA ON APPELLEES CALLING ON THEM TO PRODUCE CERTAIN
DESIGNATED DOCUMENTS FOR USE IN A GRAND JURY INVESTIGATION.  APPELLEES
CHALLENGED THE SUBPOENA ON THE GROUND THAT IT WAS SO BROAD AND SWEEPING
AS TO CONSTITUTE AN UNREASONABLE SEARCH AND SEIZURE UNDER THE FOURTH
AMENDMENT.  THE DISTRICT COURT AT ALL TIMES HAS REJECTED THIS
CONTENTION, AND APPELLEES DO NOT URGE IT HERE.  THUS IT CANNOT BE
THOUGHT THAT THE FORM OF THE SUBPOENA OR THE METHOD OF ITS ENFORCEMENT
CONSTITUTES EVEN A "CONSTRUCTIVE" SEARCH OR SEIZURE BARRED AS
"UNREASONABLE" BY THE FOURTH AMENDMENT.  OKLAHOMA PRESS CO. V. WALLING,
327 U.S. 186, 202-208.  AND UP TO THIS POINT NOTHING THAT HAPPENED IN
THIS CASE IS EVEN REMOTELY ANALOGOUS TO THE SITUATION THAT EVOKED THIS
COURT'S CONDEMNATION IN THE SILVERTHORNE CASE.  BUT THE DISTRICT COURT
FOUND AND APPELLEES HERE URGE THAT SUBSEQUENT DEVELOPMENTS IN THIS CASE
CALL FOR APPLICATION OF THE SILVERTHORNE RULE.  THOSE DEVELOPMENTS WERE
AS FOLLOWS: 

THE GRAND JURY BEFORE WHICH THE DOCUMENTS WERE PRODUCED RETURNED AN
INDICTMENT AGAINST APPELLEES AND OTHERS CHARGING VIOLATIONS OF SECS. 1
AND 2 OF THE SHERMAN ACT.  FN3  SHORTLY AFTER WE DECIDED BALLARD V.
UNITED STATES, 329 U.S. 187, THE DISTRICT COURT ON MOTION OF APPELLEES
DISMISSED THE INDICTMENT ON THE GROUND THAT THE COURT PRACTICE OF
INTENTIONALLY AND SYSTEMATICALLY EXCLUDING WOMEN FROM THE GRAND JURY
PANEL RENDERED THE GRAND JURY AN ILLEGALLY CONSTITUTED BODY.  ON THE
SAME DAY THE COURT GRANTED APPELLEES' MOTION FOR RETURN OF THE
PREVIOUSLY IMPOUNDED DOCUMENTS.  LATER THE COURT ORDERED THE GOVERNMENT
TO RETURN A NUMBER OF PHOTOSTATS THAT HAD BEEN MADE OF THE ORIGINAL
DOCUMENTS.  IN AN OPINION DISCUSSING RETURN OF THE PHOTOSTATS THE
DISTRICT COURT REAFFIRMED ITS BELIEF THAT THE "SUBPOENAS DID NOT
VIOLATE THE FOURTH AMENDMENT AND THE GOVERNMENT WAS ENTITLED TO HAVE
THE DOCUMENTS PRODUCED FOR PRESENTATION TO A LEGAL GRAND JURY."  THE
COURT HELD, HOWEVER, THAT "WHEN THE GRAND JURY TURNED OUT TO BE
ILLEGALLY CONSTITUTED AND THE INDICTMENT WAS DISMISSED  ...  THE
SUBPOENAS AMOUNTED TO UNREASONABLE SEARCHES AND SEIZURES IN VIOLATION
OF THE FOURTH AMENDMENT  ...  " 

IN ORDER TO IMPLEMENT A CONGRESSIONAL POLICY TO HAVE THE GRAND JURY A
"TRULY REPRESENTATIVE" CROSS SECTION OF THE COMMUNITY, WE HELD IN THE
BALLARD CASE, SUPRA, THAT EXCLUSION OF WOMEN FROM THE GRAND JURY
REQUIRED DISMISSAL OF AN INDICTMENT.  THE EFFECT OF THE DISTRICT
COURT'S HOLDING HERE WAS TO ADD TO THE BALLARD REQUIREMENT FOR
DISMISSAL OF THE INDICTMENT A FURTHER EXTRAORDINARY SANCTION DEVISED BY
THIS COURT TO PREVENT VIOLATIONS OF THE FOURTH AMENDMENT.  FOR HERE
THERE WAS NO OFFICIAL CULPABILITY IN ISSUANCE OR SERVICE OF THE
SUBPOENA DUCES TECUM.  THE SOLE ULTIMATE REASON FOR THE DISTRICT
COURT'S APPLICATION OF THE SILVERTHORNE RULE WAS THAT NO WOMEN WERE ON
THE GRAND JURY, A CIRCUMSTANCE THAT BEARS ONLY A REMOTE IF NOT WHOLLY
THEORETICAL RELATIONSHIP TO SEARCH AND SEIZURE.  WE CANNOT AGREE THAT
THE SILVERTHORNE RULE REQUIRES SUCH A RESULT. 

ASIDE FROM THE LIMITED EXTENT TO WHICH THE FOURTH AMENDMENT APPLIES
TO THE SUBPOENA PROCESS, SEE OKLAHOMA PRESS CO. V. WALLING, 327 U.S.
186, THERE ARE OTHER REASONS WHY THE SILVERTHORNE EXCLUSIONARY RULE
SHOULD NOT BE EXTENDED TO THE SITUATION IN THIS CASE.  THAT RULE STEMS
FROM THE FOURTH AMENDMENT.  THIS COURT HAS SAID THAT THE FOURTH
AMENDMENT COMMAND RESTS "UPON THE DESIRABILITY OF HAVING MAGISTRATES
RATHER THAN POLICE OFFICERS DETERMINE WHEN SEARCHES AND SEIZURES ARE
PERMISSIBLE AND WHAT LIMITATIONS SHOULD BE PLACED UPON SUCH
ACTIVITIES."  TRUPIANO V. UNITED STATES, 334 U.S. 699, 705; SEE ALSO
MCDONALD V. UNITED STATES, 335 U.S. 451, 455-456.  THE SILVERTHORNE
SEARCH AND SEIZURE WAS MADE WITHOUT ANY AUTHORITY FROM A MAGISTRATE. 
AND THE SEIZURE WAS SO SWEEPING IN NATURE THAT IT PROBABLY COULD NOT
HAVE BEEN AUTHORIZED BY A SEARCH WARRANT.  WEEKS V. UNITED STATES, 232
U.S. 383, 393-394.  THE SILVERTHORNE EXCLUSIONARY RULE AS EXPLAINED IN
THAT CASE AND OTHERS IS DESIGNED TO SAFEGUARD THE PRIVACY OF PEOPLE,
AND TO PREVENT SEIZURE OF THEIR PAPERS AND PROPERTY EXCEPT IN
COMPLIANCE WITH VALID JUDICIAL PROCESS.  AS TERSELY STATED IN THE
SILVERTHORNE CASE THE RULE'S PURPOSE IS TO PREVENT THE FOURTH AMENDMENT
FROM BEING REDUCED TO "A FORM OF WORDS." 

ONLY BY ENGAGING IN THE MOST EXAGGERATED APPREHENSIONS CAN THE ACTION
OF THE PROSECUTING OFFICERS IN THIS CASE BE CONSIDERED A THREAT TO THE
FOURTH AMENDMENT.  THEY WENT TO THE COURT FOR THEIR SUBPOENA.  THE
COURT APPROVED IT.  THERE IS NO CLAIM THAT THE SUBPOENA WAS OBTAINED OR
SERVED IN AN IMPROPER MANNER OR THAT ANY GOVERNMENT OFFICER COMMITTED A
WRONG IN THE WAY THE DOCUMENTS WERE HANDLED OR RETURNED.  AT LEAST MANY
OF THE DOCUMENTS WERE HIGHLY RELEVANT TO THE SERIOUS MONOPOLY OFFENSES
CHARGED AGAINST APPELLEES.  THAT THERE WERE NO WOMEN ON THE GRAND JURY
DID NOT CONTRIBUTE TO ANY INVASION OF APPELLEES' PRIVACY.  DISMISSAL OF
THE INDICTMENT COULD NOT TRANSFORM WHAT HAD BEEN PROPER OFFICIAL
CONDUCT INTO THE TYPE OF CONDUCT CONDEMNED IN THE SILVERTHORNE AND
OTHER CASES. 

IT IS TRUE THAT A METAPHYSICAL ARGUMENT CAN BE MADE TO SUPPORT A
STRAINED ANALOGY BETWEEN THE SITUATION HERE AND THAT IN THE
SILVERTHORNE AND OTHER CASES.  THAT ARGUMENT IS THAT THE "ILLEGAL"
GRAND JURY WAS ONLY A "SO-CALLED" GRAND JURY, AND THAT THE CONSIDERED
JUDICIAL COMMAND FOR PRODUCTION OF PAPERS BEFORE IT MUST BE TREATED AS
THOUGH THE COURT HAD ORDERED PRODUCTION OF PAPERS BEFORE A GROUP OF
APPELLEES' COMPETITORS.  THIS ARGUMENT HAS A SUPERFICIAL PLAUSIBILITY
ON THE WORD LEVEL, BUT IF OUR ATTENTION IS DIRECTED TO SUBSTANCE RATHER
THAN SYMBOLS THE SPECIOUSNESS OF THE ARGUMENT IS EXPOSED. 

WHATEVER INJURY APPELLEES MAY HAVE SUFFERED RESULTED FROM THE ABSENCE
OF WOMEN ON THE GRAND JURY AND THAT INJURY HAS BEEN REMEDIED BY FREEING
APPELLEES FROM PROSECUTION UNDER THE INDICTMENT.  FURTHERMORE THE
SEARCH AND SEIZURE HERE, IF SUCH IT CAN BE CALLED IN ANY TRUE SENSE,
WAS NOT THE KIND THAT HAS PROMPTED THIS COURT TO HOLD THAT THE
GOVERNMENT HAS BY WRONGFUL CONDUCT OF ITS OFFICERS FORFEITED ALL
OPPORTUNITY TO MAKE USE OF EVIDENCE UNLAWFULLY SEIZED.  WE DECLINE TO
EXTEND THE SILVERTHORNE RULE TO SUCH AN EXTENT.  THE FOURTH AMENDMENT,
IMPORTANT AS IT IS IN OUR SOCIETY, DOES NOT CALL FOR IMPOSITION OF
JUDICIAL SANCTIONS WHERE ENFORCING OFFICERS HAVE FOLLOWED THE LAW WITH
SUCH PUNCTILIOUS REGARD AS THEY HAVE HERE.  WE HOLD THAT DISMISSAL OF
THE GRAND JURY BECAUSE NO WOMEN WERE ON IT IS NO SUFFICIENT REASON FOR
HOLDING THAT THE GOVERNMENT IS BARRED FROM MAKING USE OF THE SUMMONED
DOCUMENTS. 

SECOND.  AT THE SAME TIME THE DISTRICT COURT ORDERED THE INDICTMENT
DISMISSED IT ALSO ORDERED THAT THE DOCUMENTS BE RETURNED TO THE
DEFENDANTS.  THE GOVERNMENT DID NOT APPEAL FROM THE ORDER DISMISSING
THE INDICTMENT.  SEE UNITED STATES V. HARK, 320 U.S. 531, 535-36.  IT
IS CONTENDED THAT BY ITS FAILURE TO APPEAL, THE GOVERNMENT IS BARRED BY
THE DOCTRINE OF RES JUDICATA FROM CHALLENGING THE DISMISSAL AND RETURN
ORDERS. 

ASSUMING THAT THE GOVERNMENT BY FAILURE TO APPEAL IS BARRED FROM
CHALLENGING THE COURT'S HOLDING THAT THE GRAND JURY WAS ILLEGALLY
CONSTITUTED AND THAT THE DOCUMENTS WERE PROPERLY ORDERED RETURNED, IT
BY NO MEANS FOLLOWS THAT THESE ORDERS PERMANENTLY BARRED THE GOVERNMENT
FROM ANY FUTURE USE OF THE DOCUMENTS AS EVIDENCE.  FOR THE GOVERNMENT
FORFEITED NO RIGHTS TO USE THE DOCUMENTS IN A FUTURE VALID PROCEEDING
BY FAILING TO APPEAL FROM THE DISMISSAL OF THE INDICTMENT - A DISMISSAL
IT BELIEVED TO BE SUPPORTED BY OUR HOLDING IN THE BALLARD CASE.  AND
DISMISSAL OF THE PENDING INDICTMENT AFTER HOLDING THE GRAND JURY
ILLEGAL CREATED A SITUATION WHERE APPELLEES WERE ENTITLED TO RETURN OF
THEIR PAPERS AS A MATTER OF COURSE.  CONSEQUENTLY AN APPEAL FROM THE
RETURN ORDER ALONE, EVEN IF SUCH AN APPEAL COULD HAVE BEEN TAKEN, WOULD
HAVE AVAILED THE GOVERNMENT NOTHING.  FOR THE FOREGOING REASONS WE HOLD
THAT ORDERS DISMISSING THE INDICTMENT AND REQUIRING RETURN OF THE
DOCUMENTS DID NOT AFFECT THE GOVERNMENT'S RIGHT TO HAVE THE DOCUMENTS
PRODUCED IN THESE CIVIL PROCEEDINGS. 

FOR THE SAME REASONS WE HOLD THAT THE GOVERNMENT'S RIGHT TO DEMAND
PRODUCTION IN THIS CIVIL CASE WAS NOT AFFECTED BY THE DISTRICT COURT'S
LATER ORDER REQUIRING RETURN OF PHOTOSTATIC COPIES OF THE DOCUMENTS. 
RETURN OF THE PHOTOSTATS, LIKE RETURN OF THE ORIGINALS, NECESSARILY
FOLLOWED FROM THE DISMISSAL OF THE INDICTMENT.  THIS WAS RECOGNIZED BY
THE DISTRICT COURT WHEN IN DIRECTING RETURN OF THE PHOTOSTATS THE COURT
SAID, "SINCE THESE MOTIONS STEM FROM INDICTMENT NO. 6055, THE CLERK IS
ORDERED TO MAKE THE MOTIONS, THE HEARINGS THEREON, AND THIS OPINION
PART OF THE RECORD OF SAID INDICTMENT." 

THIRD.  FOR THEIR CLAIM OF RES JUDICATA APPELLEES ALSO RELY ON A
THIRD ORDER OF THE DISTRICT COURT "PRECLUDING AND RESTRAINING THE
UNITED STATES FROM USING IN ANY WAY OR FOR ANY PURPOSE ANY KNOWLEDGE,
INFORMATION OR EVIDENCE OBTAINED FROM OR CONTAINED IN ANY OF THE
AFORESAID ILLEGALLY SEIZED PAPERS AND DOCUMENTS."  THIS ORDER WAS
ENTERED PRIOR TO THE COURT'S ACTION IN THIS CIVIL PROCEEDING IN WHICH
IT QUASHED THE SUBPOENA DUCES TECUM AND REFUSED TO ORDER PRODUCTION OF
THE DOCUMENTS.  APPELLEES CONTEND THAT THIS ORDER WAS A "DECREE OF
JUDICIAL OUTLAWRY" AGAINST ANY FUTURE GOVERNMENT USE OF THE PAPERS OR
KNOWLEDGE ACQUIRED FROM THEM; THAT THE GOVERNMENT COULD HAVE BUT DID
NOT APPEAL FROM THE ORDER; THAT FOR THIS REASON THE "DECREE OF JUDICIAL
OUTLAWRY" HAD BECOME FINAL AND BINDING UPON THE GOVERNMENT AT THE TIME
IT ASKED FOR PRODUCTION IN THIS PROCEEDING.  THE GOVERNMENT DENIES THAT
THE ORDER HAD OR WAS INTENDED TO HAVE THE BROAD PROSCRIPTIVE EFFECT
URGED BY RESPONDENTS.  IN ADDITION, THE GOVERNMENT CONTENDS THAT THE
ORDER WAS INTERLOCUTORY AND THEREFORE NOT APPEALABLE.  ON THIS LATTER
PREMISE THE GOVERNMENT RELIES ON "FAMILIAR LAW THAT ONLY A FINAL
JUDGMENT IS RES JUDICATA AS BETWEEN THE PARTIES."  MERRIAM CO. V.
SAALFIELD, 241 U.S. 22, 28.    TO SOME EXTENT BOTH PHASES OF THE
CONTENTION - SCOPE OF THE ORDER AND ITS APPEALABILITY - DEPEND UPON
WHETHER THE PROCEEDING WAS HANDLED BY THE COURT AS AN INDEPENDENT
PLENARY PROCEEDING OR ONE TO SUPPRESS EVIDENCE AT A FORTHCOMING TRIAL. 
FOR A JUDGMENT IN AN INDEPENDENT PLENARY PROCEEDING FOR RETURN OF
PROPERTY AND ITS SUPPRESSION AS EVIDENCE IS FINAL AND APPEALABLE AND
THE SCOPE OF RELIEF IN SUCH A CASE MAY EXTEND FAR BEYOND ITS EFFECT ON
A PENDING TRIAL; BUT A DECISION ON A MOTION TO RETURN OR SUPPRESS
EVIDENCE IN A PENDING TRIAL MAY BE NO MORE THAN A PROCEDURAL STEP IN A
PARTICULAR CASE AND IN SUCH EVENT THE EFFECT OF THE DECISION WOULD NOT
EXTEND BEYOND THAT CASE.  WHETHER A MOTION IS TO BE TREATED AS
INDEPENDENT AND PLENARY OR AS MERELY A PROCEDURAL STEP IN A PENDING
TRIAL MUST BE DETERMINED BY PARTICULAR CIRCUMSTANCES.  SEE COGEN V.
UNITED STATES, 278 U.S. 221.  THE CIRCUMSTANCES HERE WE THINK SHOW THAT
THE ORDER NOW CONSIDERED WAS NOT ONE OF PERMANENT GENERAL "OUTLAWRY"
AGAINST ALL USE OF THE DOCUMENTS INVOLVED, BUT AN ORDER TO PREVENT
THEIR USE IN A PARTICULAR CRIMINAL PROCEEDING THEN PENDING. 

AFTER THE COURT HAD DISMISSED THE INDICTMENT BECAUSE NO WOMEN WERE ON
THE JURY, THE GOVERNMENT FILED IN THE SAME DISTRICT COURT AN
INFORMATION CHARGING THE SAME OFFENSE.  THE DEFENDANTS FILED A MOTION
IN THE INFORMATION PROCEEDING (1) TO DISMISS THE INFORMATION; (2) IN
THE ALTERNATIVE TO DISMISS AND EXPUNGE THOSE FACTS OF THE INFORMATION
BASED ON KNOWLEDGE OBTAINED FROM THE PAPERS AND DOCUMENTS; (3) TO
PRECLUDE AND RESTRAIN THE UNITED STATES FROM USING IN ANY WAY OR FOR
ANY PURPOSE KNOWLEDGE OR EVIDENCE OBTAINED FROM OR CONTAINED IN THE
DOCUMENTS.  THE COURT DENIED (1) AND (2) BUT GRANTED (3).  THE MOTION,
COURT OPINION, AND COURT ORDER BORE THE TITLE AND NUMBER (6070) OF THE
CRIMINAL INFORMATION PROCEEDING.  DURING THE ARGUMENT COLLOQUIES TOOK
PLACE BETWEEN COURT AND COUNSEL WHICH EMPHASIZED THAT THE MOTION
RELATED TO "CRIMINAL 6070." 

THE MOTION WAS ARGUED AT LENGTH BEFORE THE DISTRICT JUDGE. 
GOVERNMENT COUNSEL TOOK THE POSITION THAT THE COURT'S ORDER ON THE
MOTION WOULD NOT BE APPEALABLE.  SEE COBBLEDICK V. UNITED STATES, 309
U.S. 323; UNITED STATES V. ROSENWASSER, 145 F.2D 1015.  HE THEREFORE
ASKED THE COURT TO BE CAREFUL ABOUT THE FORM OF THE ORDER, EXPRESSING
APPREHENSIONS THAT COUNSEL FOR APPELLEES WOULD LATER ARGUE THAT THE
ORDER ENTERED IN THE CRIMINAL PROCEEDING WAS BROAD ENOUGH TO BAR USE OF
THE DOCUMENTS IN THE CIVIL PROCEEDINGS.  GOVERNMENT COUNSEL INDICATED
HIS PLANS SUBSEQUENTLY TO PRESENT THE ISSUE OF THE GOVERNMENT'S RIGHT
TO USE THE DOCUMENTS IN THIS CIVIL PROCEEDING, TAKING THE POSITION THAT
AN APPEAL WOULD THEN LIE.  HE THEREFORE ASKED THE COURT TO AWAIT ENTRY
OF ANY ORDER UNTIL HIS PLANS COULD BE CARRIED OUT.  APPELLEES' COUNSEL
TOLD THE COURT THAT "THE PLANS WHICH MR. KELLEHER HAS CONCERN CIVIL
6055.  THIS IS CRIMINAL 6070."  AND THE COURT TOLD GOVERNMENT COUNSEL
THAT THE PRECLUSION ORDER WOULD PRECLUDE USE OF THE DOCUMENTS "ONLY IN
THIS (CRIMINAL) ACTION."  THE COURT FURTHER SAID TO GOVERNMENT COUNSEL
THAT IF THE COURT MADE A WRONG ORDER "THEN YOU CAN GO AHEAD AS YOU
CONTEND OR PLAN TO GO AHEAD IN YOUR CIVIL ACTION."  FINALLY, JUST
BEFORE CONCLUSION OF THE HEARING ON THE ORDER, THE COURT TOLD
GOVERNMENT COUNSEL, "I DON'T SEE HOW THIS IS GOING TO PREJUDICE YOU IN
SOME OTHER CASE, AND THIS COURT IS ONLY CONCERNED WITH 6070(CRIMINAL
INFORMATION CHARGE) AT THIS TIME, AS I UNDERSTAND IT." 

WE HOLD THAT THE PROCEEDINGS LEADING UP TO THE PRECLUSION ORDER MUST
BE DEEMED A PART OF THE CRIMINAL PROCEEDINGS, SEE COGEN V. UNITED
STATES, 278 U.S. 221, 227; THAT THE ORDER DID NOT PRECLUDE USE OF THE
DOCUMENTS EXCEPT IN THESE PROCEEDINGS; AND THAT THIS ORDER DOES NOT
STAND AS A BAR TO CONSIDERATION OF THE AVAILABILITY OF THE DOCUMENTS
FOR USE AS EVIDENCE IN THIS CIVIL CASE. 

OTHER CONTENTIONS OF APPELLEES HAVE BEEN CONSIDERED AND FOUND TO BE
WITHOUT MERIT.  REVERSED. 

FN1  APPELLEES HAVE MOVED TO DISMISS THIS APPEAL TAKEN BY THE UNITED
STATES UNDER SEC. 2 OF THE EXPEDITING ACT OF FEBRUARY 11, 1903, 32
STAT. 823, 15 U.S.C. SEC. 29, AS AMENDED, ACT OF JUNE 25, 1948, SEC.
17, 62 STAT. 869, 989.  THE DECISION APPEALED FROM WAS AS FOLLOWS:
"THE GOVERNMENT'S 'REQUEST' FOR JUDGMENT AND RELIEF PRAYED FOR IN THE
COMPLAINT IS DENIED AND JUDGMENT MAY BE ENTERED DISMISSING THE ACTION
WITHOUT PREJUDICE.  IT IS SO ORDERED." 

THIS JUDGMENT FOLLOWED THE COURT'S ACTION IN DENYING THE GOVERNMENT'S
MOTIONS FOR PRODUCTION OF DOCUMENTS ESSENTIAL TO PROVE THE GOVERNMENT'S
CASE.  THE RECORD FAILS TO SUSTAIN APPELLEES' CONTENTION THAT THE
GOVERNMENT INVITED THE COURT TO ENTER THIS ORDER DENYING RELIEF AND
DISMISSING THE ACTION.  THAT THE DISMISSAL WAS WITHOUT PREJUDICE TO
FILING ANOTHER SUIT DOES NOT MAKE THE CAUSE UNAPPEALABLE, FOR DENIAL OF
RELIEF AND DISMISSAL OF THE CASE ENDED THIS SUIT SO FAR AS THE DISTRICT
COURT WAS CONCERNED.  WECKER V. NATIONAL ENAMELING CO., 204 U.S. 176,
181-182.  SEE ALSO UNITED STATES V. NATIONAL CITY LINES, 334 U.S. 573,
577, AND BOWLES V. BEATRICE CREAMERY CO., 146 F.2D 774.  THE MOTION TO
DISMISS THE APPEAL IS OVERRULED. 

FN2  WEEKS V. UNITED STATES, 232 U.S. 383; JOHNSON V. UNITED STATES,
333 U.S. 10; GO-BART CO. V. UNITED STATES, 282 U.S. 344; BYARS V.
UNITED STATES, 273 U.S. 28; GOULED V. UNITED STATES, 255 U.S. 298;
UNITED STATES V. LEFKOWITZ, 285 U.S. 452; TRUPIANO V. UNITED STATES,
334 U.S. 699; AND CF. HARRIS V. UNITED STATES, 331 U.S. 145; ZAP V.
UNITED STATES, 328 U.S. 624; DAVIS V. UNITED STATES, 328 U.S. 582. 

FN3  26 STAT. 209, AS AMENDED 50 STAT. 693, 15 U.S.C. SECS. 1, 2. 
..END :





















UNITED STATES V. URBUTEIT, 336 U.S. 804 


NO. 640.  DECIDED MAY 2, 1949.  - 172 F.2D 386, REVERSED. 


IN REVERSING THE DECISION BELOW IN THIS CONDEMNATION PROCEEDING UNDER
THE FEDERAL FOOD, DRUG, AND COSMETIC ACT AND REMANDING THE CASE TO THE
COURT OF APPEALS, 335 U.S. 355, THIS COURT DECIDED THAT THE SEPARATE
SHIPMENT OF CERTAIN MACHINES AND CERTAIN LEAFLETS RELATIVE TO THEIR
ALLEGED DIAGNOSTIC AND CURATIVE VALUE WAS IMMATERIAL BECAUSE THE
MOVEMENT OF THE MACHINES AND LEAFLETS CONSTITUTED A SINGLE INTERRELATED
ACTIVITY; BUT IT LEFT FOR CONSIDERATION BY THE COURT OF APPEALS THE
QUESTION WHETHER THE EVIDENCE AS TO THE FALSITY OF THE ADVERTISING AS
TO THE DIAGNOSTIC CAPABILITIES OF THE MACHINES WAS ADEQUATE TO SUSTAIN
THEIR CONDEMNATION EVEN THOUGH ERROR IN EXCLUSION OF OTHER EVIDENCE
WERE CONCEDED.  HELD:  THE UNITED STATES WAS ENTITLED TO A HEARING ON
THE LATTER QUESTION; AND THE COURT OF APPEALS FAILED TO FOLLOW THE
MANDATE OF THIS COURT WHEN IT REMANDED THE CASE TO THE DISTRICT COURT
FOR DETERMINATION OF A QUESTION AS TO WHICH OF THE SHIPMENTS MIGHT BE
CONSIDERED A SINGLE INTERRELATED ACTIVITY.  PP. 804-806. 

UNITED STATES V. URBUTEIT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT. 

AFTER THE DECISION OF THIS COURT, REVERSING THE DECISION BELOW AND
REMANDING THIS CASE TO THE COURT OF APPEALS, 335 U.S. 355, THE LATTER
COURT REMANDED IT TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.  172
F.2D 386.  CERTIORARI GRANTED AND JUDGMENT REVERSED, P. 806. 

PER CURIAM. 

THE QUESTION PRESENTED BY THIS PETITION IS WHETHER THE COURT OF
APPEALS FOLLOWED OUR MANDATE ON REMAND OF THE CAUSE IN 335 U.S. 355. 

THE CASE WHEN IT WAS HERE EARLIER THIS TERM APPEARED IN THE FOLLOWING
POSTURE: 

A CONDEMNATION PROCEEDING WAS INSTITUTED BY THE UNITED STATES UNDER
THE FEDERAL FOOD, DRUG, AND COSMETIC ACT (52 STAT. 1040, 1044, 21
U.S.C. SEC. 334).  SIXTEEN MACHINES WITH ALLEGED DIAGNOSTIC AND
CURATIVE CAPABILITIES HAD BEEN SHIPPED IN INTERSTATE COMMERCE. 
LEAFLETS DESCRIBING THE USES OF THE MACHINE HAD BEEN SHIPPED AT A
SEPARATE TIME.  THE COURT OF APPEALS HAD HELD THAT THE SEPARATE
SHIPMENTS OF THE MACHINES AND LEAFLETS PRECLUDED A CONCLUSION THAT THE
LEAFLETS HAD ACCOMPANIED THE DEVICE IN INTERSTATE COMMERCE, AND
THEREFORE THE TRANSACTION WAS OUTSIDE THE REACH OF THE ACT.  WE
REVERSED THE COURT OF APPEALS AND HELD THAT THE SEPARATE SHIPMENT OF
THE MACHINES AND LEAFLETS CONSTITUTED A SINGLE INTERRELATED ACTIVITY. 

ON REMAND THE COURT OF APPEALS CONCLUDED THAT BECAUSE THERE WERE
SEVERAL SHIPMENTS OF MACHINES AND A SINGLE SHIPMENT OF ADVERTISING
MATTER, IT WAS NOT CLEAR WHICH SHIPMENTS MIGHT BE CONSIDERED A SINGLE
INTERRELATED ACTIVITY.  THEREFORE, IT REMANDED THE CASE TO THE DISTRICT
COURT FOR A DETERMINATION OF THIS FACT.  172 F.2D 386. 

WHEN THE CASE WAS HERE BEFORE, WE DECIDED THAT THE FACT OF SEPARATE
SHIPMENTS OF MACHINES AND LEAFLETS WAS IMMATERIAL.  THE CONTROLLING
FACTORS WERE WHETHER THE LEAFLETS WERE DESIGNED FOR USE WITH THE
MACHINE AND WHETHER THEY WERE SO USED.  SINCE THE FUNCTION OF THE
LEAFLETS AND THE PURPOSE OF THEIR SHIPMENT WERE ESTABLISHED, NOTHING
MORE WAS NEEDED TO SHOW THAT THE MOVEMENTS OF THE MACHINES AND LEAFLETS
CONSTITUTED A SINGLE INTERRELATED ACTIVITY.  MOREOVER, THE CASE IS NOT
COMPLICATED BY SHIPMENTS OF MACHINES AND LEAFLETS TO DIFFERENT
PERSONS.  ONE KELSCH WAS THE RECIPIENT OF BOTH. 

ON REMAND THE COURT OF APPEALS ADHERED TO ITS FORMER RULING THAT THE
DISTRICT COURT ERRONEOUSLY EXCLUDED EVIDENCE AS TO THE THERAPEUTIC OR
CURATIVE VALUE OF THE MACHINES.  WHEN THE CASE WAS HERE BEFORE WE DID
NOT DISTURB THAT RULING.  BUT WE DID LEAVE TO THE COURT OF APPEALS FOR
CONSIDERATION A FURTHER QUESTION - WHETHER THE EVIDENCE AS RESPECTS THE
FALSITY OF THE REPRESENTATIONS REGARDING THE DIAGNOSTIC CAPABILITIES OF
THE MACHINES WAS ADEQUATE TO SUSTAIN THE CONDEMNATION EVEN THOUGH ERROR
IN EXCLUSION OF THE OTHER EVIDENCE WERE CONCEDED.  THE UNITED STATES IS
ENTITLED TO A HEARING ON THAT QUESTION. 

THE PETITION FOR CERTIORARI IS GRANTED AND THE JUDGMENT REVERSED. 
..END :


















WADE V. HUNTER, 336 U.S. 684 


NO. 427.  ARGUED MARCH 7, 1949.  - DECIDED APRIL 25, 1949.  - 169 F.2D
973, AFFIRMED. 


IN PETITIONER'S TRIAL BY A GENERAL COURT-MARTIAL OF A DIVISION OF THE
THIRD ARMY, THEN ADVANCING RAPIDLY IN GERMANY, THE COURT HEARD EVIDENCE
AND ARGUMENTS OF COUNSEL, CLOSED TO CONSIDER THE CASE, REOPENED THE
SAME DAY, AND CONTINUED THE CASE IN ORDER TO HEAR CIVILIAN WITNESSES
NOT THEN AVAILABLE.  SUBSEQUENTLY, THE COMMANDING GENERAL OF THE THIRD
ARMY TRANSFERRED THE CASE TO THE FIFTEENTH ARMY FOR A NEW TRIAL, ON THE
GROUND THAT THE TACTICAL SITUATION AND THE DISTANCE TO THE RESIDENCE OF
SUCH WITNESSES MADE IT IMPRACTICABLE FOR THE THIRD ARMY TO CONDUCT THE
COURT-MARTIAL.  THE FIFTEENTH ARMY CONVENED A COURT-MARTIAL, WHICH
OVERRULED PETITIONER'S PLEA OF FORMER JEOPARDY AND TRIED AND CONVICTED
HIM.  HELD:  IN THE CIRCUMSTANCES OF THIS CASE, THE DOUBLE-JEOPARDY
PROVISION OF THE FIFTH AMENDMENT DID NOT BAR HIS TRIAL BEFORE THE
SECOND COURT-MARTIAL.  PP. 685-692. 

1.  THE DOUBLE-JEOPARDY PROVISION OF THE FIFTH AMENDMENT DOES NOT
MEAN THAT EVERY TIME A DEFENDANT IS PUT TO TRIAL BEFORE A COMPETENT
TRIBUNAL HE IS ENTITLED TO GO FREE IF THE TRIAL FAILS TO END IN A FINAL
JUDGMENT.  P. 688. 

2.  A TRIAL MAY BE DISCONTINUED WHEN PARTICULAR CIRCUMSTANCES
MANIFEST A NECESSITY FOR SO DOING AND WHEN FAILURE TO DISCONTINUE WOULD
DEFEAT THE ENDS OF JUSTICE.  UNITED STATES V. PEREZ, 9 WHEAT.  579. 
PP. 689-690. 

3.  WHEN THIS MAY BE DONE WITHOUT BARRING ANOTHER TRIAL DEPENDS UPON
ALL THE CIRCUMSTANCES OF THE PARTICULAR CASE AND NOT UPON THE
MECHANICAL APPLICATION OF AN ABSTRACT FORMULA.  P. 691. 

4.  IN THIS CASE, THE RECORD WAS SUFFICIENT TO SHOW THAT THE TACTICAL
SITUATION BROUGHT ABOUT BY A RAPIDLY ADVANCING ARMY RESULTED IN
WITHDRAWAL OF THE CHARGES FROM THE FIRST COURT-MARTIAL; AND, IN THE
ABSENCE OF CHARGES OF BAD FAITH ON THE PART OF THE COMMANDING GENERAL,
COURTS SHOULD NOT ATTEMPT TO REVIEW HIS ON-THE-SPOT DECISION THAT THE
TACTICAL SITUATION REQUIRED TRANSFER OF THE CASE.  PP. 691-692. 

WADE V. HUNTER, WARDEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING, A FEDERAL DISTRICT COURT ORDERED
PETITIONER'S RELEASE ON THE GROUND THAT HIS CONVICTION BY COURT-MARTIAL
HAD VIOLATED THE DOUBLE-JEOPARDY PROVISION OF THE FIFTH AMENDMENT.  72
F.SUPP.  755.  THE COURT OF APPEALS REVERSED.  169 F.2D 973.  THIS
COURT GRANTED CERTIORARI.  335 U.S. 907.  AFFIRMED, P. 692. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE FIFTH AMENDMENT TO THE CONSTITUTION PROVIDES THAT A PERSON SHALL
NOT "BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB" FOR THE SAME OFFENSE. 
THE PETITIONER, NOW IN PRISON UNDER A COURT-MARTIAL CONVICTION FOR A
SERIOUS OFFENSE, CONTENDS HE IS ENTITLED TO HIS FREEDOM BECAUSE ANOTHER
COURT-MARTIAL HAD PREVIOUSLY PUT HIM IN JEOPARDY FOR THE SAME OFFENSE. 
THE FIRST COURT-MARTIAL WAS DISSOLVED BY THE CONVENING AUTHORITY BEFORE
THE COURT REACHED A DECISION.  THE GOVERNMENT CONTENDS THAT THE FIFTH
AMENDMENT'S DOUBLE-JEOPARDY PROVISION, IF APPLICABLE TO MILITARY
COURTS, DID NOT BAR THE SECOND COURT-MARTIAL CONVICTION HERE BECAUSE,
AS THE GOVERNMENT VIEWS THE RECORD, DISSOLUTION OF THE FIRST COURT
MARTIAL WAS DICTATED BY A PRESSING MILITARY TACTICAL SITUATION.  THE
CIRCUMSTANCES FROM WHICH THESE CONTENTIONS ARISE ARE AS FOLLOWS. 

MARCH 13, 1945, AMERICAN TROOPS OF THE 76TH INFANTRY DIVISION ENTERED
KROV, GERMANY.  THE NEXT AFTERNOON TWO GERMAN WOMEN WERE RAPED BY TWO
MEN IN AMERICAN UNIFORMS.  SEVERAL DAYS LATER PETITIONER AND ANOTHER
AMERICAN SOLDIER WERE ARRESTED UPON CHARGES THAT THEY COMMITTED THESE
OFFENSES.  TWO WEEKS LATER, MARCH 27, THE TROOPS HAD ADVANCED ABOUT 22
MILES FARTHER INTO GERMANY TO A PLACE CALLED PFALZFELD.  ON THAT DATE
AT PFALZFELD PETITIONER AND THE OTHER SOLDIER WERE PUT ON TRIAL BEFORE
A GENERAL COURT-MARTIAL CONVENED BY ORDER OF THE COMMANDING GENERAL OF
THE 76TH INFANTRY DIVISION TO WHICH DIVISION THE TWO SOLDIERS WERE
ATTACHED.  FN1  AFTER HEARING EVIDENCE AND ARGUMENTS OF COUNSEL, THE
COURT-MARTIAL CLOSED TO CONSIDER THE CASE.  LATER THAT DAY THE COURT
MARTIAL REOPENED AND ANNOUNCED THAT THE COURT WOULD BE CONTINUED UNTIL
A LATER DATE TO BE FIXED BY THE JUDGE ADVOCATE.  THE REASON FOR THE
CONTINUANCE WAS THE DESIRE OF THE COURT-MARTIAL TO HEAR OTHER WITNESSES
NOT THEN AVAILABLE BEFORE DECIDING THE GUILT OR INNOCENCE OF THE
ACCUSED.  FN2 

A WEEK LATER THE COMMANDING GENERAL OF THE 76TH DIVISION WITHDREW THE
CHARGES FROM THE COURT-MARTIAL DIRECTING IT TO TAKE NO FURTHER
PROCEEDINGS.  THE GENERAL THEN TRANSMITTED THE CHARGES TO THE
COMMANDING GENERAL OF THE THIRD ARMY WITH RECOMMENDATIONS FOR TRIAL BY
A NEW COURT-MARTIAL.  THE REASON FOR TRANSFERRING THE CHARGES AS
EXPLAINED IN A COMMUNICATION TO THE COMMANDING GENERAL OF THE THIRD
ARMY WAS: 

"THE CASE WAS PREVIOUSLY REFERRED FOR TRIAL BY GENERAL COURT-MARTIAL
AND TRIAL WAS COMMENCED.  TWO WITNESSES, THE MOTHER AND FATHER OF THE
VICTIM OF THE ALLEGED RAPE, WERE UNABLE TO BE PRESENT DUE TO SICKNESS,
AND THE COURT CONTINUED THE CASE SO THAT THEIR TESTIMONY COULD BE
OBTAINED.  DUE TO THE TACTICAL SITUATION THE DISTANCE TO THE RESIDENCE
OF SUCH WITNESSES HAS BECOME SO GREAT THAT THE CASE CANNOT BE COMPLETED
WITHIN A REASONABLE TIME." 

THE COMMANDING GENERAL OF THE THIRD ARMY CONCLUDED THAT THE "TACTICAL
SITUATION" OF HIS COMMAND AND ITS "CONSIDERABLE DISTANCE" FROM KROV
MADE IT IMPRACTICABLE FOR THE THIRD ARMY TO CONDUCT THE COURT-MARTIAL. 
ACCORDINGLY, HE IN TURN TRANSMITTED THE CHARGES TO THE FIFTEENTH ARMY
STATING THAT THIS ACTION WAS NECESSARY TO CARRY OUT THE POLICY OF THE
AMERICAN ARMY IN EUROPE TO ACCELERATE PROMPT TRIALS "IN THE IMMEDIATE
VICINITY OF THE ALLEGED OFFENSES."  PURSUANT TO THIS TRANSMITTAL, THE
FIFTEENTH ARMY COMMANDING GENERAL CONVENED A COURT-MARTIAL AT A POINT
ABOUT FORTY MILES FROM KROV.  PETITIONER, REPRESENTED BY COUNSEL, FILED
A PLEA IN BAR ALLEGING THAT HE HAD BEEN PUT IN JEOPARDY BY THE FIRST
COURT-MARTIAL PROCEEDINGS AND COULD NOT BE TRIED AGAIN.  HIS PLEA WAS
OVERRULED, THE CASE WAS TRIED, AND A CONVICTION FOLLOWED.  HE WAS
SENTENCED TO A DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND
ALLOWANCES, AND LIFE IMPRISONMENT, WHICH IMPRISONMENT WAS LATER REDUCED
TO TWENTY YEARS.  FN3 

AFTER EXHAUSTING HIS RIGHT TO MILITARY REVIEW, PETITIONER BROUGHT
THIS HABEAS CORPUS PROCEEDING IN A FEDERAL DISTRICT COURT.  THAT COURT
ORDERED HIS RELEASE, HOLDING THAT HIS PLEA OF FORMER JEOPARDY SHOULD
HAVE BEEN SUSTAINED.  72 F.SUPP.  755.  THE COURT OF APPEALS REVERSED,
ONE JUDGE DISSENTING.  169 F.2D 973.  WE HOLD THAT UNDER THE
CIRCUMSTANCES SHOWN, THE FIFTH AMENDMENT'S DOUBLE-JEOPARDY PROVISION
DID NOT BAR PETITIONER'S TRIAL BEFORE THE SECOND COURT-MARTIAL.  FN4 

THE INTERPRETATION AND APPLICATION OF THE FIFTH AMENDMENT'S DOUBLE
JEOPARDY PROVISION HAVE BEEN CONSIDERED CHIEFLY IN CIVIL RATHER THAN
MILITARY COURT PROCEEDINGS.  PAST CASES HAVE DECIDED THAT A DEFENDANT,
PUT TO TRIAL BEFORE A JURY, MAY BE SUBJECTED TO THE KIND OF "JEOPARDY"
THAT BARS A SECOND TRIAL FOR THE SAME OFFENSE EVEN THOUGH HIS TRIAL IS
DISCONTINUED WITHOUT A VERDICT.  SEE KEPNER V. UNITED STATES, 195 U.S.
100, 128; CF. PALKO V. CONNECTICUT, 302 U.S. 319, 322-323.  THE SAME
MAY BE TRUE WHERE A JUDGE TRYING A CASE WITHOUT A JURY FAILS FOR SOME
REASON TO ENTER A JUDGMENT.  MCCARTHY V. ZERBST, 85 F.2D 640, 642.  THE
DOUBLE-JEOPARDY PROVISION OF THE FIFTH AMENDMENT, HOWEVER, DOES NOT
MEAN THAT EVERY TIME A DEFENDANT IS PUT TO TRIAL BEFORE A COMPETENT
TRIBUNAL HE IS ENTITLED TO GO FREE IF THE TRIAL FAILS TO END IN A FINAL
JUDGMENT.  SUCH A RULE WOULD CREATE AN INSUPERABLE OBSTACLE TO THE
ADMINISTRATION OF JUSTICE IN MANY CASES IN WHICH THERE IS NO SEMBLANCE
OF THE TYPE OF OPPRESSIVE PRACTICES AT WHICH THE DOUBLE-JEOPARDY
PROHIBITION IS AIMED.  THERE MAY BE UNFORESEEABLE CIRCUMSTANCES THAT
ARISE DURING A TRIAL MAKING ITS COMPLETION IMPOSSIBLE, SUCH AS THE
FAILURE OF A JURY TO AGREE ON A VERDICT.  IN SUCH EVENT THE PURPOSE OF
LAW TO PROTECT SOCIETY FROM THOSE GUILTY OF CRIMES FREQUENTLY WOULD BE
FRUSTRATED BY DENYING COURTS POWER TO PUT THE DEFENDANT TO TRIAL
AGAIN.  AND THERE HAVE BEEN INSTANCES WHERE A TRIAL JUDGE HAS
DISCOVERED FACTS DURING A TRIAL WHICH INDICATED THAT ONE OR MORE
MEMBERS OF A JURY MIGHT BE BIASED AGAINST THE GOVERNMENT OR THE
DEFENDANT.  IT IS SETTLED THAT THE DUTY OF THE JUDGE IN THIS EVENT IS
TO DISCHARGE THE JURY AND DIRECT A RETRIAL.  FN5  WHAT HAS BEEN SAID IS
ENOUGH TO SHOW THAT A DEFENDANT'S VALUED RIGHT TO HAVE HIS TRIAL
COMPLETED BY A PARTICULAR TRIBUNAL MUST IN SOME INSTANCES BE
SUBORDINATED TO THE PUBLIC'S INTEREST IN FAIR TRIALS DESIGNED TO END IN
JUST JUDGMENTS. 

WHEN JUSTICE REQUIRES THAT A PARTICULAR TRIAL BE DISCONTINUED IS A
QUESTION THAT SHOULD BE DECIDED BY PERSONS CONVERSANT WITH FACTORS
RELEVANT TO THE DETERMINATION.  THE GUIDING RULE OF FEDERAL COURTS FOR
DETERMINING WHEN TRIALS SHOULD BE DISCONTINUED WAS OUTLINED BY THIS
COURT IN UNITED STATES V. PEREZ, 9 WHEAT.  579.  IN THAT CASE THE TRIAL
JUDGE WITHOUT CONSENT OF THE DEFENDANT OR THE GOVERNMENT DISCHARGED THE
JURY BECAUSE ITS MEMBERS WERE UNABLE TO AGREE.  THE DEFENDANT CLAIMED
THAT HE COULD NOT BE TRIED AGAIN AND PRAYED FOR HIS DISCHARGE AS A
MATTER OF RIGHT.  IN ANSWERING THE CLAIM THIS COURT SAID AT P. 580: 

"  ...  WE THINK, THAT IN ALL CASES OF THIS NATURE, THE LAW HAS
INVESTED COURTS OF JUSTICE 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.  THEY
ARE TO EXERCISE A SOUND DISCRETION ON THE SUBJECT; AND IT IS IMPOSSIBLE
TO DEFINE ALL THE CIRCUMSTANCES, WHICH WOULD RENDER IT PROPER TO
INTERFERE.  TO BE SURE, THE POWER OUGHT TO BE USED WITH THE GREATEST
CAUTION, UNDER URGENT CIRCUMSTANCES, AND FOR VERY PLAIN AND OBVIOUS
CAUSES; AND, IN CAPITAL CASES ESPECIALLY, COURTS SHOULD BE EXTREMELY
CAREFUL HOW THEY INTERFERE WITH ANY OF THE CHANCES OF LIFE, IN FAVOUR
OF THE PRISONER.  BUT, AFTER ALL, THEY HAVE THE RIGHT TO ORDER THE
DISCHARGE; AND THE SECURITY WHICH THE PUBLIC HAVE FOR THE FAITHFUL,
SOUND, AND CONSCIENTIOUS EXERCISE OF THIS DISCRETION, RESTS, IN THIS,
AS IN OTHER CASES, UPON THE RESPONSIBILITY OF THE JUDGES, UNDER THEIR
OATHS OF OFFICE.  ... " 

THE RULE ANNOUNCED IN THE PEREZ CASE HAS BEEN THE BASIS FOR ALL LATER
DECISIONS OF THIS COURT ON DOUBLE JEOPARDY.  FN6  IT ATTEMPTS TO LAY
DOWN NO RIGID FORMULA.  UNDER THE RULE 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.  WE SEE NO
REASON WHY THE SAME BROAD TEST SHOULD NOT BE APPLIED IN DECIDING
WHETHER COURT-MARTIAL ACTION RUNS COUNTER TO THE FIFTH AMENDMENT'S
PROVISION AGAINST DOUBLE JEOPARDY.  MEASURED BY THE PEREZ RULE TO WHICH
WE ADHERE, PETITIONER'S SECOND COURT-MARTIAL TRIAL WAS NOT THE KIND OF
DOUBLE JEOPARDY WITHIN THE INTENT OF THE FIFTH AMENDMENT. 

THERE IS NO CLAIM HERE THAT THE COURT-MARTIAL WENT BEYOND ITS POWERS
IN TEMPORARILY CONTINUING THE TRIAL TO OBTAIN THE BENEFIT OF OTHER
WITNESSES.  FN7  BUT THE DISTRICT COURT VIEWED THE RECORD AS SHOWING
THAT THE ONLY PURPOSE OF DISSOLVING THE COURT-MARTIAL WAS TO GET MORE
WITNESSES.  THIS PURPOSE, THE DISTRICT COURT HELD, WAS NOT THE KIND OF
"IMPERIOUS" OR "URGENT NECESSITY" THAT CAME WITHIN THE RECOGNIZED
EXCEPTION TO THE DOUBLE-JEOPARDY PROVISION.  SEE CORNERO V. UNITED
STATES, 48 F.2D 69.  WE ARE URGED TO APPLY THE CORNERO INTERPRETATION
OF THE "URGENT NECESSITY" RULE HERE.  WE ARE ASKED TO ADOPT THE CORNERO
RULE UNDER WHICH PETITIONER CONTENDS THE ABSENCE OF WITNESSES CAN NEVER
JUSTIFY DISCONTINUANCE OF A TRIAL.  SUCH A RIGID FORMULA IS
INCONSISTENT WITH THE GUIDING PRINCIPLES OF THE PEREZ DECISION TO WHICH
WE ADHERE.  THOSE PRINCIPLES COMMAND COURTS IN CONSIDERING WHETHER A
TRIAL SHOULD BE TERMINATED WITHOUT JUDGMENT TO TAKE "ALL CIRCUMSTANCES
INTO ACCOUNT" AND THEREBY FORBID THE MECHANICAL APPLICATION OF AN
ABSTRACT FORMULA.  THE VALUE OF THE PEREZ PRINCIPLES THUS LIES IN THEIR
CAPACITY FOR INFORMED APPLICATION UNDER WIDELY DIFFERENT CIRCUMSTANCES
WITHOUT INJURY TO DEFENDANTS OR TO THE PUBLIC INTEREST. 

FURTHERMORE, THIS RECORD IS SUFFICIENT TO SHOW THAT THE TACTICAL
SITUATION BROUGHT ABOUT BY A RAPIDLY ADVANCING ARMY WAS RESPONSIBLE FOR
WITHDRAWAL OF THE CHARGES FROM THE FIRST COURT-MARTIAL.  THIS APPEARS
IN THE FIRST ORDER OF TRANSMITTAL OF THE CHARGES.  THAT ORDER WAS MADE
BY THE COMMANDING GENERAL OF THE 76TH DIVISION WHO WAS RESPONSIBLE FOR
CONVENING THE COURT-MARTIAL AND WHO WAS ALSO RESPONSIBLE FOR THE MOST
EFFECTIVE MILITARY EMPLOYMENT OF THAT DIVISION IN CARRYING OUT THE PLAN
FOR THE INVASION OF GERMANY.  THERE IS NO INTIMATION IN THE RECORD THAT
THE TACTICAL SITUATION DID NOT REQUIRE THE TRANSFER ORDER.  THE COURT
MARTIAL WAS COMPOSED OF OFFICERS OF THE INVADING ARMY DIVISION. 
MOMENTOUS ISSUES HUNG ON THE INVASION AND WE CANNOT ASSUME THAT THESE
COURT-MARTIAL OFFICERS WERE NOT NEEDED TO PERFORM THEIR MILITARY
FUNCTIONS.  IN THE PEREZ CASE WE SAID THAT THE SOUND DISCRETION OF A
PRESIDING JUDGE SHOULD BE ACCEPTED AS TO THE NECESSITY OF DISCONTINUING
A TRIAL.  THIS CASE PRESENTS EXTRAORDINARY REASONS WHY THE JUDGMENT OF
THE COMMANDING GENERAL SHOULD BE ACCEPTED BY THE COURTS.  AT LEAST IN
THE ABSENCE OF CHARGES OF BAD FAITH ON THE PART OF THE COMMANDING
GENERAL, COURTS SHOULD NOT ATTEMPT TO REVIEW HIS ON-THE-SPOT DECISION
THAT THE TACTICAL SITUATION REQUIRED TRANSFER OF THE CHARGES. 
AFFIRMED. 

FN1  THE CHARGES WERE UNDER THE 92D ARTICLE OF WAR, 10 U.S.C. SEC.
1564. 

FN2  "LAW MEMBER:  THE COURT DESIRES THAT FURTHER WITNESSES BE CALLED
INTO THE CASE, AND TO ALLOW TIME TO SECURE THESE WITNESSES, THIS CASE
WILL BE CONTINUED.  WE WOULD LIKE TO HAVE AS WITNESSES BROUGHT BEFORE
THE COURT, THE PARENTS OF THIS PERSON MAKING THE ACCUSATION, ROSA
GLOWSKY, AND ALSO THE SISTER-IN-LAW THAT WAS IN THE ROOM WHO COULD
FURTHER ASSIST IN THE IDENTIFICATION OR IDENTITY OF THE ACCUSED.  THE
COURT WILL BE CONTINUED UNTIL A LATER DATE SET BY THE T. (RIAL) J.
(UDGE) A. (DVOCATE)." 

FN3  THE OTHER SOLDIER WAS ACQUITTED BY THE COURT-MARTIAL.  THE
ACTING ARMY JUDGE ADVOCATE IN REVIEWING PETITIONER'S CONVICTION SAID:
"FOUR WITNESSES, ALL GERMAN, POSITIVELY IDENTIFIED THE ACCUSED WADE. 
THE SAME WITNESSES FAILED TO IDENTIFY" THE OTHER SOLDIER. 

FN4  OUR HOLDING THAT UNDER THE CIRCUMSTANCES HERE THE FIFTH
AMENDMENT DID NOT BAR TRIAL BY THE SECOND COURT-MARTIAL MAKES IT
UNNECESSARY TO CONSIDER THE FOLLOWING QUESTIONS DISCUSSED IN THE
GOVERNMENT'S BRIEF:  (1) TO WHAT EXTENT A COURT-MARTIAL'S OVERRULING OF
A PLEA OF FORMER JEOPARDY IS SUBJECT TO COLLATERAL ATTACK IN HABEAS
CORPUS PROCEEDINGS.  SEE CARTER V. MCCLAUGHRY, 183 U.S. 365, 390; AND
CF. GRAFTON V. UNITED STATES, 206 U.S. 333, 352-353; SUNAL V. LARGE,
332 U.S. 174, AND CASES COLLECTED IN N. 8, P. 179.  (2) THE VALIDITY OF
THE FORTIETH ARTICLE OF WAR, 41 STAT. 795, 10 U.S.C. SEC. 1511.  THAT
ARTICLE PROVIDES IN PART AS FOLLOWS:  "NO PERSON SHALL, WITHOUT HIS
CONSENT, BE TRIED A SECOND TIME FOR THE SAME OFFENSE; BUT NO PROCEEDING
IN WHICH AN ACCUSED HAS BEEN FOUND GUILTY BY A COURT-MARTIAL UPON ANY
CHARGE OR SPECIFICATION SHALL BE HELD TO BE A TRIAL IN THE SENSE OF
THIS ARTICLE UNTIL THE REVIEWING AND, IF THERE BE ONE, THE CONFIRMING
AUTHORITY SHALL HAVE TAKEN FINAL ACTION UPON THE CASE."    FN5  SIMMONS
V. UNITED STATES, 142 U.S. 148, 154; THOMPSON V. UNITED STATES, 155
U.S. 271, 273-274. 

FN6  SEE, E.G., SIMMONS V. UNITED STATES, 142 U.S. 148; LOGAN V.
UNITED STATES, 144 U.S. 263, 297-298; KEERL V. MONTANA, 213 U.S. 135,
137; LOVATO V. NEW MEXICO, 242 U.S. 199.    FN7  THE MANUAL FOR COURTS
MARTIAL, PAR. 75A (1928), RECOMMENDS THAT WHERE THE "  ...  EVIDENCE
APPEARS TO BE INSUFFICIENT FOR A PROPER DETERMINATION OF ANY ISSUE OR
MATTER BEFORE IT, THE COURT MAY AND ORDINARILY SHOULD, TAKE APPROPRIATE
ACTION WITH A VIEW TO OBTAINING SUCH AVAILABLE ADDITIONAL EVIDENCE AS
IS NECESSARY OR ADVISABLE FOR SUCH DETERMINATION.  THE COURT MAY, FOR
INSTANCE, REQUIRE THE TRIAL JUDGE ADVOCATE TO RECALL A WITNESS, TO
SUMMON NEW WITNESSES, OR TO MAKE INVESTIGATION OR INQUIRY ALONG CERTAIN
LINES WITH A VIEW TO DISCOVERING AND PRODUCING ADDITIONAL EVIDENCE." 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
RUTLEDGE AGREE, DISSENTING. 

I AGREE WITH THE COURT BELOW THAT IN THE MILITARY COURTS, AS IN THE
CIVIL, JEOPARDY WITHIN THE MEANING OF THE FIFTH AMENDMENT ATTACHES WHEN
THE COURT BEGINS THE HEARING OF EVIDENCE.  I AGREE ALSO THAT A VALID
CHARGE WAS PENDING BEFORE THE FIRST COURT-MARTIAL WITH WHICH WE ARE NOW
CONCERNED, AND THAT THE COURT HAD JURISDICTION OF THE SUBJECT-MATTER
AND OF THE PERSON OF THE PETITIONER. 

IN THE FIRST COURT-MARTIAL EVIDENCE WAS INTRODUCED; IN FACT, BOTH
SIDES HAD COMPLETED THE PRESENTATION OF THEIR CASES AND HAD SUBMITTED
ORAL ARGUMENT, AND THE COURT HAD CLOSED TO CONSIDER ITS DECISION.  THE
COURT WAS LATER OPENED ON ITS OWN MOTION, FOR THE PURPOSE OF HEARING
THE TESTIMONY OF THREE NAMED WITNESSES, WHO WERE EXPECTED TO SHED LIGHT
ON THE QUESTION OF IDENTIFICATION. 

THE COMMANDING GENERAL OF THE UNIT COMPRISING PETITIONER AND THE
COURT-MARTIAL THAT WAS TRYING HIM WITHDREW THE CHARGES AND DISSOLVED
THE COURT-MARTIAL, AND TRANSMITTED THE PAPERS TO THE COMMANDING GENERAL
OF THE THIRD ARMY, "WITH A RECOMMENDATION OF TRIAL BY GENERAL COURT
MARTIAL."  THEY WERE SUBSEQUENTLY TRANSFERRED TO THE COMMANDING GENERAL
OF THE FIFTEENTH ARMY, WHO REFERRED THE CASE FOR TRIAL BY GENERAL COURT
MARTIAL.  PETITIONER WAS TRIED AND CONVICTED, AFTER THE COURT-MARTIAL
HAD OVERRULED A PLEA OF FORMER JEOPARDY BASED ON THE PRIOR PROCEEDING. 
THE COMMANDING GENERAL, FIFTEENTH ARMY, ON THE RECOMMENDATION OF HIS
STAFF JUDGE ADVOCATE, APPROVED THE FINDING OF GUILTY AND REDUCED THE
PERIOD OF CONFINEMENT FROM LIFE TO TWENTY YEARS.  THE CASE WAS ASSIGNED
FOR REVIEW TO BOARD OF REVIEW NO. 4, CONSISTING OF THREE JUDGE
ADVOCATES IN THE BRANCH OFFICE OF THE JUDGE ADVOCATE GENERAL WITH THE
EUROPEAN THEATER.  THIS BOARD, SITTING IN PARIS, CLOSE TO THE SCENE OF
MILITARY OPERATIONS, FILED A UNANIMOUS OPINION TO THE EFFECT THAT THE
PLEA IN BAR SHOULD HAVE BEEN SUSTAINED FN1  AND THAT CONSEQUENTLY THE
RECORD OF TRIAL WAS LEGALLY INSUFFICIENT TO SUPPORT THE FINDINGS AND
SENTENCE.  THE ASSISTANT JUDGE ADVOCATE GENERAL FILED A DISSENTING
OPINION, AND THE SENTENCE WAS CONFIRMED BY THE COMMANDING GENERAL,
EUROPEAN THEATER.  IN THE HABEAS CORPUS PROCEEDINGS IN THE UNITED
STATES, THE DISTRICT COURT AGREED WITH THE BOARD OF REVIEW THAT THE
PLEA OF DOUBLE JEOPARDY SHOULD HAVE BEEN SUSTAINED.  THE COURT OF
APPEALS REVERSED, ONE JUDGE DISSENTING. 

THERE IS NO DOUBT THAT WADE WAS PLACED IN JEOPARDY BY HIS FIRST
TRIAL.  THIS COURT NOW HOLDS THAT THE DECISION OF HIS COMMANDING
OFFICER, ASSESSING THE TACTICAL MILITARY SITUATION, IS SUFFICIENT TO
DEPRIVE HIM OF HIS RIGHT UNDER THE CONSTITUTION TO BE FREE FROM BEING
TWICE SUBJECTED TO TRIAL FOR THE SAME OFFENSE.  WITH THIS READING OF
THE CONSTITUTION I CANNOT AGREE.  THE HARASSMENT TO THE DEFENDANT FROM
BEING REPEATEDLY TRIED IS NOT LESS BECAUSE THE ARMY IS ADVANCING.  THE
GUARANTEE OF THE CONSTITUTION AGAINST DOUBLE JEOPARDY IS NOT TO BE
ERODED AWAY BY A TIDE OF PLAUSIBLE-APPEARING EXCEPTIONS.  THE COMMAND
OF THE FIFTH AMENDMENT DOES NOT ALLOW TEMPORIZING WITH THE BASIC RIGHTS
IT DECLARES.  ADAPTATIONS OF MILITARY JUSTICE TO THE EXIGENCIES OF
TACTICAL SITUATIONS IS THE PREROGATIVE OF THE COMMANDER IN THE FIELD,
BUT THE PRICE OF SUCH EXPEDIENCY IS COMPLIANCE WITH THE CONSTITUTION. 
I WOULD REVERSE THE JUDGMENT BELOW. 

FN1  THE OPINION OF THE BOARD OF REVIEW READS IN PART AS FOLLOWS:
"WE SEE NOTHING WHICH RENDERS THE ABSENCE OF WITNESSES, AS SHOWN BY THE
RECORD OF TRIAL IN THIS CASE, AN EMERGENT SITUATION IN EXCEPTION TO THE
RULE IN THE FEDERAL COURTS.  THEIR WITNESSES MAY LIE BEYOND THE REACH
OF PROCESS, IF PROCESS ISSUES WITNESSES MAY NOT RESPOND, ORAL PROMISES
TO APPEAR MAY NOT BE KEPT, AND THEY MAY BECOME ILL DURING TRIAL; BUT
SUCH DIFFICULTIES IN PROOF ARE NOT GROUNDS FOR A TERMINATION OF TRIAL
AND A SECOND PROSECUTION.  IMPERIOUS NECESSITY MEANS A SUDDEN AND
OVERWHELMING EMERGENCY, UNCONTROLLABLE AND UNFORESEEABLE, INFECTING THE
JUDICIAL PROCESS AND RENDERING A FAIR AND IMPARTIAL TRIAL IMPOSSIBLE. 
IT DOES NOT MEAN EXPEDIENCY."  TRANSCRIPT OF RECORD, P. 75. 
..END :














HUMPHREY V. SMITH, 336 U.S. 695 


NO. 457.  ARGUED MARCH 30, 1949.  - DECIDED APRIL 25, 1949.  - 170 F.2D
61, REVERSED. 


1.  IN HABEAS CORPUS PROCEEDINGS TO REVIEW COURT-MARTIAL JUDGMENTS,
COURTS CANNOT PASS ON THE GUILT OR INNOCENCE OF PERSONS CONVICTED BY
COURTS-MARTIAL.  P. 696. 

2.  FAILURE TO CONDUCT A PRE-TRIAL INVESTIGATION IN THE MANNER
PRESCRIBED BY THE 70TH ARTICLE OF WAR DOES NOT DEPRIVE A GENERAL COURT
MARTIAL OF JURISDICTION NOR SUBJECT ITS JUDGMENT TO INVALIDATION IN A
HABEAS CORPUS PROCEEDING.  PP. 696-701. 

HUMPHREY, WARDEN, V. SMITH. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING CHALLENGING THE VALIDITY OF A
CONVICTION BY A COURT-MARTIAL, A FEDERAL DISTRICT COURT DENIED RELIEF. 
72 F.SUPP.  935.  THE COURT OF APPEALS REVERSED.  170 F.2D 61.  THIS
COURT GRANTED CERTIORARI.  336 U.S. 908.  REVERSED, P. 701. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, BERNARD W. SMITH, AN AMERICAN SOLDIER, WAS CONVICTED
BY AN ARMY COURT-MARTIAL FOR RAPE OF ONE WOMAN AND ASSAULT WITH INTENT
TO RAPE ANOTHER IN VIOLATION OF THE 92D AND 93D ARTICLES OF WAR.  10
U.S.C. SECS. 1564 AND 1565.  HIS PUNISHMENT WAS DISHONORABLE DISCHARGE,
FORFEITURE OF ALL PAY AND ALLOWANCES, AND IMPRISONMENT FOR LIFE.  ARMY
REVIEWING AUTHORITIES APPROVED THE CONVICTION AND SENTENCE, BUT THE
PRESIDENT REDUCED THE PUNISHMENT TO SIXTEEN YEARS' IMPRISONMENT.  THIS
HABEAS CORPUS PROCEEDING WAS BROUGHT IN A DISTRICT COURT CHALLENGING
THE VALIDITY OF THE CONVICTION.  THE DISTRICT COURT DENIED RELIEF.  72
F.SUPP.  935.  THE COURT OF APPEALS REVERSED, ORDERING RESPONDENT'S
DISCHARGE.  170 F.2D 61.  WE GRANTED CERTIORARI BECAUSE THE PETITION
RAISES QUESTIONS CONCERNING IMPORTANT PHASES OF COURT-MARTIAL STATUTORY
POWERS AND THE SCOPE OF JUDICIAL REVIEW OF COURT-MARTIAL CONVICTIONS. 

WE MAY AT ONCE DISPOSE OF THE CONTENTION THAT THE RESPONDENT SHOULD
NOT HAVE BEEN CONVICTED ON THE EVIDENCE OFFERED.  THAT EVIDENCE WAS IN
SHARP DISPUTE.  BUT OUR AUTHORITY IN HABEAS CORPUS PROCEEDINGS TO
REVIEW COURT-MARTIAL JUDGMENTS DOES NOT PERMIT US TO PASS ON THE GUILT
OR INNOCENCE OF PERSONS CONVICTED BY COURTS-MARTIAL N1. 

IT IS CONTENDED THAT THE COURT-MARTIAL WAS WITHOUT JURISDICTION TO
TRY RESPONDENT.  IF SO THE COURT-MARTIAL EXCEEDED ITS LAWFUL AUTHORITY
AND ITS JUDGMENT CAN BE INVALIDATED DESPITE THE LIMITED POWERS OF A
COURT IN HABEAS CORPUS PROCEEDINGS.  FN2  THE SOUNDNESS OF THIS
CONTENTION DEPENDS UPON AN INTERPRETATION OF THE 70TH ARTICLE OF WAR,
THE PERTINENT PART OF WHICH IS SET OUT BELOW.  FN3  IT PROVIDES THE
MANNER IN WHICH PRE-TRIAL INVESTIGATIONS SHALL BE MADE PRELIMINARY TO
TRIALS OF SOLDIERS BEFORE GENERAL COURTS-MARTIAL.  A PART OF THE
LANGUAGE IS THAT "NO CHARGE WILL BE REFERRED TO A GENERAL COURT MARTIAL
FOR TRIAL UNTIL AFTER A THOROUGH AND IMPARTIAL INVESTIGATION THEREOF
SHALL HAVE BEEN MADE."  THE CONTENTION IS THAT THIS REQUIREMENT IS
JURISDICTIONAL IN NATURE; THAT THE KIND OF PRE-TRIAL INVESTIGATION
PRESCRIBED IS AN INDISPENSABLE PREREQUISITE TO EXERCISE OF GENERAL
COURT-MARTIAL JURISDICTION; AND THAT ABSENT SUCH PRIOR INVESTIGATION A
JUDGMENT OF CONVICTION IS WHOLLY VOID. 

HERE THERE WAS AN INVESTIGATION.  THE CLAIM IS THAT IT WAS NEITHER
"THOROUGH" NOR "IMPARTIAL" AS THE 70TH ARTICLE REQUIRES.  THE COURT OF
APPEALS, ONE JUDGE DISSENTING, SO HELD, AND ITS REVERSAL WAS RESTED ON
THAT FINDING.  THERE WAS NO FINDING THAT THERE WAS UNFAIRNESS IN THE
COURT-MARTIAL TRIAL ITSELF. 

WE DO NOT THINK THAT THE PRE-TRIAL INVESTIGATION PROCEDURE REQUIRED
BY ARTICLE 70 CAN PROPERLY BE CONSTRUED AS AN INDISPENSABLE
PREREQUISITE TO EXERCISE OF ARMY GENERAL COURT-MARTIAL JURISDICTION. 
THE ARTICLE DOES SERVE IMPORTANT FUNCTIONS IN THE ADMINISTRATION OF
COURT-MARTIAL PROCEDURES AND DOES PROVIDE SAFEGUARDS TO AN ACCUSED. 
ITS LANGUAGE IS CLEARLY SUCH THAT A DEFENDANT COULD OBJECT TO TRIAL IN
THE ABSENCE OF THE REQUIRED INVESTIGATION.  IN THAT EVENT THE COURT
MARTIAL COULD ITSELF POSTPONE TRIAL PENDING THE INVESTIGATION.  AND THE
MILITARY REVIEWING AUTHORITIES COULD CONSIDER THE SAME CONTENTION,
REVERSING A COURT-MARTIAL CONVICTION WHERE FAILURE TO COMPLY WITH
ARTICLE 70 HAS SUBSTANTIALLY INJURED AN ACCUSED.  FN4  BUT WE ARE NOT
PERSUADED THAT CONGRESS INTENDED TO MAKE OTHERWISE VALID COURT-MARTIAL
JUDGMENTS WHOLLY VOID BECAUSE PRE-TRIAL INVESTIGATIONS FALL SHORT OF
THE STANDARDS PRESCRIBED BY ARTICLE 70.  THAT CONGRESS HAS NOT REQUIRED
ANALOGOUS PRE-TRIAL PROCEDURE FOR NAVY COURTS-MARTIAL IS AN INDICATION
THAT THE INVESTIGATORY PLAN WAS NOT INTENDED TO BE EXALTED TO THE
JURISDICTIONAL LEVEL. 

NOTHING IN THE LEGISLATIVE HISTORY OF THE ARTICLE SUPPORTS THE
CONTENTION THAT CONGRESS INTENDED THAT A CONVICTION AFTER A FAIR TRIAL
SHOULD BE NULLIFIED BECAUSE OF THE MANNER IN WHICH AN INVESTIGATION WAS
CONDUCTED PRIOR TO THE FILING OF CHARGES.  ITS ORIGINAL PURPOSES WERE
TO INSURE ADEQUATE PREPARATION OF CASES, TO GUARD AGAINST HASTY, ILL
CONSIDERED CHARGES, TO SAVE INNOCENT PERSONS FROM THE STIGMA OF
UNFOUNDED CHARGES, AND TO PREVENT TRIVIAL CASES FROM GOING BEFORE
GENERAL COURTS-MARTIAL.  WAR DEPARTMENT, MILITARY JUSTICE DURING THE
WAR, 63(1919).  ALL OF THESE PURPOSES RELATE SOLELY TO ACTIONS REQUIRED
IN ADVANCE OF FORMAL CHARGES OR TRIAL.  ALL THE PURPOSES CAN BE FULLY
ACCOMPLISHED WITHOUT SUBJECTING COURT-MARTIAL CONVICTIONS TO JUDICIAL
INVALIDATION WHERE PRE-TRIAL INVESTIGATIONS HAVE NOT BEEN MADE. 

SHORTLY AFTER ENACTMENT OF ARTICLE 70 IN 1920 THE JUDGE ADVOCATE
GENERAL OF THE ARMY DID HOLD THAT WHERE THERE HAD BEEN NO PRE-TRIAL
INVESTIGATION, COURT-MARTIAL PROCEEDINGS WERE VOID AB INITIO.  FN5  BUT
THIS HOLDING HAS BEEN EXPRESSLY REPUDIATED IN LATER HOLDINGS OF THE
JUDGE ADVOCATE N6.  THIS LATER INTERPRETATION HAS BEEN THAT THE PRE
TRIAL REQUIREMENTS OF ARTICLE 70 ARE DIRECTORY, NOT MANDATORY, AND IN
NO WAY AFFECT THE JURISDICTION OF A COURT-MARTIAL.  THE WAR
DEPARTMENT'S INTERPRETATION WAS POINTEDLY CALLED TO THE ATTENTION OF
CONGRESS IN 1947 AFTER WHICH CONGRESS AMENDED ARTICLE 70 BUT LEFT
UNCHANGED THE LANGUAGE HERE UNDER CONSIDERATION.  FN7 

WE HOLD THAT A FAILURE TO CONDUCT PRE-TRIAL INVESTIGATIONS AS
REQUIRED BY ARTICLE 70 DOES NOT DEPRIVE GENERAL COURTS-MARTIAL OF
JURISDICTION SO AS TO EMPOWER COURTS IN HABEAS CORPUS PROCEEDINGS TO
INVALIDATE COURT-MARTIAL JUDGMENTS.  IT IS CONTENDED THAT THIS
INTERPRETATION OF ARTICLE 70 RENDERS IT MEANINGLESS, PRACTICALLY MAKING
IT A DEAD LETTER.  THIS CONTENTION MUST REST ON THE PREMISE THAT THE
ARMY WILL COMPLY WITH THE 70TH ARTICLE OF WAR ONLY IF COURTS IN HABEAS
CORPUS PROCEEDINGS CAN INVALIDATE ANY COURT-MARTIAL CONVICTION WHICH
DOES NOT FOLLOW AN ARTICLE 70 PRE-TRIAL PROCEDURE.  WE CANNOT ASSUME
THAT JUDICIAL COERCION IS ESSENTIAL TO COMPEL THE ARMY TO OBEY THIS
ARTICLE OF WAR.  IT WAS THE ARMY ITSELF THAT INITIATED THE PRE-TRIAL
INVESTIGATION PROCEDURE AND RECOMMENDED CONGRESSIONAL ENACTMENT OF
ARTICLE 70.  FN8  A REASONABLE ASSUMPTION IS THAT THE ARMY WILL REQUIRE
COMPLIANCE WITH THE ARTICLE 70 INVESTIGATORY PROCEDURE TO THE END THAT
ARMY WORK SHALL NOT BE UNNECESSARILY IMPEDED AND THAT ARMY PERSONNEL
SHALL NOT BE WRONGED AS THE RESULT OF UNFOUNDED AND FRIVOLOUS COURT
MARTIAL CHARGES AND TRIALS.  FN9 

THIS COURT-MARTIAL CONVICTION RESULTING FROM A TRIAL FAIRLY CONDUCTED
CANNOT BE INVALIDATED BY A JUDICIAL FINDING THAT THE PRE-TRIAL
INVESTIGATION WAS NOT CARRIED ON IN THE MANNER PRESCRIBED BY THE 70TH
ARTICLE OF WAR.  FN10  REVERSED. 

FN1  CARTER V. MCCLAUGHRY, 183 U.S. 365, 381; AND SEE IN RE
YAMASHITA, 327 U.S. 1, 8-9, AND CASES CITED. 

FN2  UNITED STATES V. COOKE, 336 U.S. 210; COLLINS V. MCDONALD, 258
U.S. 416, 418; SEE IN RE YAMASHITA, 327 U.S. 1, 8-9. 

FN3  "NO CHARGE WILL BE REFERRED TO A GENERAL COURT MARTIAL FOR TRIAL
UNTIL AFTER A THOROUGH AND IMPARTIAL INVESTIGATION THEREOF SHALL HAVE
BEEN MADE.  THIS INVESTIGATION WILL INCLUDE INQUIRIES AS TO THE TRUTH
OF THE MATTER SET FORTH IN SAID CHARGES, FORM OF CHARGES, AND WHAT
DISPOSITION OF THE CASE SHOULD BE MADE IN THE INTEREST OF JUSTICE AND
DISCIPLINE.  AT SUCH INVESTIGATION FULL OPPORTUNITY SHALL BE GIVEN TO
THE ACCUSED TO CROSS-EXAMINE WITNESSES AGAINST HIM IF THEY ARE
AVAILABLE AND TO PRESENT ANYTHING HE MAY DESIRE IN HIS OWN BEHALF
EITHER IN DEFENSE OR MITIGATION, AND THE INVESTIGATING OFFICER SHALL
EXAMINE AVAILABLE WITNESSES REQUESTED BY THE ACCUSED.  IF THE CHARGES
ARE FORWARDED AFTER SUCH INVESTIGATION, THEY SHALL BE ACCOMPANIED BY A
STATEMENT OF THE SUBSTANCE OF THE TESTIMONY TAKEN ON BOTH SIDES."  41
STAT. 759, 802, AS AMENDED 50 STAT. 724; 10 U.S.C. SEC. 1542.  SEE ALSO
ACT OF JUNE 24, 1948, SECS. 222, 231, 244, 62 STAT. 604, 633, 639,
642. 

FN4  MILITARY REVIEWING AUTHORITIES DO NOT REVISE COURT-MARTIAL
CONVICTIONS FOR FAILURE TO FOLLOW PRE-TRIAL PROCEDURE UNLESS IT APPEARS
TO THEM THAT SUCH FAILURE HAS INJURIOUSLY AFFECTED THE SUBSTANTIAL
RIGHTS OF THE ACCUSED.  CM 229477, FLOYD, 17 B.R. 149, 153-156(1943). 
THE ASSISTANT JUDGE ADVOCATE GENERAL TESTIFYING BEFORE THE COMMITTEE ON
ARMED SERVICES STATED:  "IF IT APPEARED IN THE OFFICE OF THE JUDGE
ADVOCATE GENERAL THAT THE MAN HAD BEEN DEPRIVED OF ANY SUBSTANTIAL
RIGHT, SUCH AS THE PRESENTATION OF TESTIMONY IN HIS OWN BEHALF, OR
SOMETHING OF THAT KIND, IT WOULD BE POSSIBLE FOR US TO SAY THAT THE
ERROR INJURIOUSLY AFFECTED THE RIGHTS OF THE ACCUSED AND THAT THE
SENTENCE SHOULD THEREFORE BE VACATED.  THE CASE OF REAL INJURY WOULD BE
RARE.  ORDINARILY GUILT OR INNOCENCE IS AND SHOULD BE DETERMINED AT THE
TRIAL AND NOT BY WHAT OCCURRED PRIOR TO THE TRIAL."  HEARINGS BEFORE
SUBCOMMITTEE NO. 11, LEGAL, OF HOUSE COMMITTEE ON ARMED SERVICES ON
H.R. 2575, 80TH CONG., 1ST SESS. 2059-2060(1947). 

FN5  CM 161728, CLARK.  SEE ALSO TO THE SAME EFFECT CM 182225,
KELLER; CM 183183, CLAYBAUGH. 

FN6  SEE FLOYD, SUPRA, N. 4; CMETO 4570, HAWKINS, 13 B.R. (ETO) 57,
71-75(1945); CM 323486, RUCKMAN, 72 B.R. 267, 272-274(1947). 

FN7  ACT OF JUNE 24, 1948, SECS. 222, 231, 244, 62 STAT. 604, 633,
639, 642.  IN CONGRESSIONAL COMMITTEE HEARINGS WAR DEPARTMENT
REPRESENTATIVES WERE SUBJECTED TO CONSIDERABLE QUESTIONING AS TO
WHETHER PRE-TRIAL REQUIREMENTS SHOULD BE MADE JURISDICTIONAL PRE
REQUISITES.  ONE OF MANY STATEMENTS SUPPORTING THE WAR DEPARTMENT'S
VIEW WAS THAT OF UNDER SECRETARY OF WAR ROYALL, WHO TESTIFIED: 

"HOWEVER, OUR BILL DOES NOT MAKE IT A JURISDICTIONAL FACTOR, BUT IT
DOES CONTEMPLATE A THOROUGH INVESTIGATION.  IN THE STATES IN WHICH I
HAVE PRACTICED LAW, PRELIMINARY INVESTIGATIONS ARE NEVER A
JURISDICTIONAL REQUIREMENT.  I KNOW THEY ARE NOT IN THE FEDERAL COURTS
...  WE WOULD BE DEPARTING RADICALLY FROM ACCEPTED JUDICIAL PRACTICE,
GENERALLY THROUGHOUT THE UNITED STATES, IF WE MADE THAT A
JURISDICTIONAL REQUIREMENT.  THAT IS REALLY THE DIFFERENCE BETWEEN THE
DURHAM BILL AND THIS, AS I UNDERSTAND."  THIS STATEMENT AND OTHERS IN
OPPOSITION TO RAISING PRE-TRIAL INVESTIGATIONS TO A JURISDICTIONAL
LEVEL APPEAR AT THE FOLLOWING PAGES OF THE HEARINGS BEFORE SUBCOMMITTEE
NO. 11, LEGAL, OF HOUSE COMMITTEE ON ARMED SERVICES ON H.R. 2575, 80TH
CONG., 1ST SESS. 1924-1925, 2058-2061, 2064-2065, 2146, 2152
2153(1947). 

FN8  WAR DEPARTMENT, MILITARY JUSTICE DURING THE WAR, 63(1919); H.R.
REP. NO. 940, 66TH CONG., 2D SESS. 2(1920). 

FN9  SECRETARY ROYALL IN REFERRING TO THE PROCEDURE TOLD THE HOUSE
COMMITTEE:  "WE BELIEVE VERY STRONGLY IN IT AND WE WILL PROVIDE FOR IT
AS STRONGLY AS WE CAN, WITHOUT MAKING IT GROUNDS FOR A TECHNICAL
APPEAL."  HEARINGS BEFORE SUBCOMMITTEE NO. 11, LEGAL, OF HOUSE
COMMITTEE ON ARMED SERVICES ON H.R. 2575, 80TH CONG., 1ST SESS.
2152(1947). 

FN10  DISTRICT COURTS AND COURTS OF APPEAL HAVE NOT BEEN IN AGREEMENT
ON THE QUESTION.  HENRY V. HODGES, 76 F.SUPP.  968, 970-974; ANTHONY V.
HUNTER, 71 F.SUPP.  823, 830-831; HICKS V. HIATT, 64 F.SUPP.  238, 242;
WAITE V. OVERLADE, 164 F.2D 722, 723-724; DE WAR V. HUNTER, 170 F.2D
993, 995-997. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING. 

PRE-TRIAL INVESTIGATION UNDER THE SEVENTIETH ARTICLE OF WAR PERFORMS
A DUAL FUNCTION.  IT SAVES THE ARMY'S TIME BY ELIMINATING FRIVOLOUS
CASES; IT PROTECTS AN ACCUSED FROM THE IGNOMINY OF A GENERAL COURT
MARTIAL WHEN THE CHARGES AGAINST HIM ARE GROUNDLESS.  THESE POLICIES,
OF COURSE, MEAN MORE THAN THE PROTECTION OF THE RESPONDENT IN THIS
CASE.  THEIR PRIMARY SERVICE APPEARS WHEN THE DEFENDANT IS CLEARLY
INNOCENT.  IF THE ARTICLE IS IGNORED, AND THE COURT MARTIAL FINDS THE
DEFENDANT INNOCENT, THE ERROR CAN NEVER BE CORRECTED - THE OFFICERS'
TIME HAS BEEN WASTED AND THE DEFENDANT'S RECORD IS FOREVER BESMIRCHED
BY THE WORDS "GENERAL COURT MARTIAL."  YET IF THE PRISONER IS FOUND
GUILTY, THERE IS STILL NO SANCTION.  FOR MILITARY AUTHORITIES WILL NOT
SET ASIDE A CONVICTION UNLESS THE VERY ACCUSED ASKING REVERSAL HAS BEEN
PREJUDICED.  AND IF THE TRIAL HAS BEEN FAIR, AND RESULTED IN
CONVICTION, WHO WILL SAY THAT THE DEFENDANT HAS BEEN PREJUDICED BECAUSE
PRELIMINARY INVESTIGATION WAS WANTING? 

UNLESS A CIVILIAN COURT IS ABLE TO ENFORCE THE REQUIREMENT, THEN, IT
IS NOT A REQUIREMENT AT ALL, BUT ONLY A SUGGESTION WHICH SHOULD BE
OBSERVED.  TODAY THE COURT ADOPTS THE LATTER ALTERNATIVE.  IT HOLDS
THAT THE ERROR OF NONCOMPLIANCE WITH A.W. 70 IS NOT JURISDICTIONAL.  IT
MAKES A.W. 70 A VIRTUAL DEAD LETTER. 

I CANNOT IMPUTE SO BLAND A RULE TO THE CONGRESS.  AND NO EVIDENCE OF
SUCH STERILITY HAS BEEN BROUGHT TO OUR ATTENTION.  WHAT THE EIGHTIETH
CONGRESS THOUGHT ABOUT THE PROBLEM IS IRRELEVANT, OF COURSE, FOR A.W.
70 WAS THE PRODUCT OF THE SIXTY-SIXTH CONGRESS, IN 1920, AND RESPONDENT
WAS TRIED IN 1944, LONG BEFORE THE EIGHTIETH CONGRESS CONVENED.  HAD
RESPONDENT'S TRIAL TAKEN PLACE IN 1948, THE RESULT MIGHT BE ENTIRELY
DIFFERENT.  THE AVAILABLE EVIDENCE INDICATES CLEARLY THAT THE SIXTY
SIXTH CONGRESS CONSIDERED PRELIMINARY INVESTIGATION VITAL BEFORE
TRIAL.  THE LANGUAGE OF THE ARTICLE IS THAT OF COMMAND - "NO CHARGE
WILL BE REFERRED" WITHOUT INVESTIGATION.  THE REPORT ACCOMPANYING THE
1920 STATUTE, AFTER REFERRING TO AN INVESTIGATION OF UNFAIRNESS IN
ADMINISTERING MILITARY JUSTICE, AND CONCLUDING THAT "THE PERSONAL
ELEMENT ENTERED TOO LARGELY INTO THESE CASES," LISTED TWENTY-THREE
CHANGES IN THE LAW.  THE SECOND CHANGE MENTIONED WAS THIS:  "SPEEDY BUT
THOROUGH AND IMPARTIAL PRELIMINARY INVESTIGATION WILL BE HAD IN ALL
CASES."  H.R. REP. NO. 940, 66TH CONG., 2D SESS., P. 2(1920). 

IN 1924, JUST FOUR YEARS AFTER A.W. 70 BECAME THE LAW, THE BOARD OF
REVIEW CONSTRUED THE LANGUAGE DIRECTLY OPPOSITE TO THE COURT'S PRESENT
INTERPRETATION.  IT HELD THAT THE ERROR WAS JURISDICTIONAL.  CM 161728,
CLARK.  TWO LATER HOLDINGS, BOTH IN 1928, CONFIRMED THIS VIEW.  CM
182225, KELLER; CM 183183, CLAYBAUGH.  IN KELLER, THE INVESTIGATION
TOOK PLACE, BUT WAS NOT "THOROUGH."  THE BOARD HELD THAT A THOROUGH
INVESTIGATION WAS "AN ABSOLUTE RIGHT GIVEN TO THE ACCUSED BY STATUTE." 
AND IN 1937 CONGRESS REENACTED THE SAME LANGUAGE WE ARE CONSTRUING NOW,
THE SAME LANGUAGE THE BOARD OF REVIEW EXPOUNDED IN 1924 AND 1928.  50
STAT. 724.  IT SEEMS EXTRAORDINARY TO SAY THAT REVERSALS OF THE PRIOR
RULINGS IN 1943, CM 229477, FLOYD, 17 B.R. 149, SHOULD GOVERN WHEN
CONGRESS HAS APPARENTLY ACQUIESCED IN THE FIRST, AND CONTEMPORARY,
INTERPRETATIONS. 

CONGRESSIONAL BELIEF IN THE IMPORTANCE OF PRELIMINARY INVESTIGATION
SHOULD NOT NOW BE FRUSTRATED BY A HOLDING THAT NONCOMPLIANCE CANNOT BE
ATTACKED BY HABEAS CORPUS.  I AGREE WITH THE COURT BELOW THAT THE
PRELIMINARY INVESTIGATION IN THIS CASE DID NOT MEET THE PROPER
STANDARD, AND WOULD AFFIRM THE JUDGMENT. 
..END :


















GRIFFIN V. UNITED STATES, 336 U.S. 704 


NO. 417.  ARGUED DECEMBER 15-16, 1948.  - DECIDED APRIL 25, 1949.  -
REMANDED. 


1.  PETITIONER, CLAIMING SELF-DEFENSE, WAS CONVICTED IN THE DISTRICT
OF COLUMBIA OF MURDER IN THE FIRST DEGREE AND WAS SENTENCED TO DEATH. 
ON A MOTION FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE,
HE RELIED ON EVIDENCE THAT AT THE TIME OF THE KILLING THE DECEASED HAD
AN OPEN KNIFE IN HIS POCKET.  THE TRIAL COURT DENIED THE MOTION ON THE
GROUND THAT, SINCE PETITIONER DID NOT KNOW THAT THE DECEASED WAS
CARRYING A KNIFE, THE EVIDENCE WAS INADMISSIBLE.  AN APPEAL WAS
DISMISSED BY THE COURT OF APPEALS WITHOUT OPINION.  HELD:  THE CAUSE IS
REMANDED TO THE COURT OF APPEALS WITH INSTRUCTIONS TO DECIDE, IN THE
FIRST INSTANCE, WHAT RULE OF EVIDENCE SHOULD PREVAIL IN THE DISTRICT OF
COLUMBIA.  PP. 705-718. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, IT IS INAPPROPRIATE THAT THE
GROUND OF THE DISMISSAL OF THE APPEAL BE LEFT TO INFERENCE.  PP. 707
708. 

3.  THERE IS NO "FEDERAL RULE" AS TO THE ADMISSIBILITY OF EVIDENCE OF
UNCOMMUNICATED THREATS IN A MURDER CASE IN WHICH SELF-DEFENSE IS
CLAIMED; AND, EVEN IF THERE WERE, IT WOULD NOT FOLLOW THAT THAT RULE
MUST ALSO BE THE RULE FOR THE DISTRICT OF COLUMBIA.  PP. 712-713. 

4.  INASMUCH AS CONGRESS MAY ENACT SUBSTANTIVE RULES OF CRIMINAL LAW
EXCLUSIVELY FOR THE DISTRICT OF COLUMBIA, THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA SHOULD HAVE THE OPPORTUNITY TO FORMULATE RULES OF
EVIDENCE APPROPRIATE FOR THE DISTRICT, SO LONG AS THE RULES ADOPTED DO
NOT OFFEND STATUTORY OR CONSTITUTIONAL LIMITATIONS.  PP. 713-717. 

5.  THE FORMULATION OF RULES OF EVIDENCE FOR THE DISTRICT OF COLUMBIA
IS A MATTER OF LOCAL LAW TO BE DETERMINED, IN THE ABSENCE OF SPECIFIC
CONGRESSIONAL LEGISLATION, BY THE HIGHEST APPELLATE COURT FOR THE
DISTRICT.  PP. 716-717. 

6.  THIS COURT SHOULD NOT UNDERTAKE TO DECIDE QUESTIONS OF LOCAL LAW
WITHOUT THE AID OF SOME EXPRESSION OF THE VIEWS OF JUDGES OF THE LOCAL
COURTS WHO ARE FAMILIAR WITH THE INTRICACIES AND TRENDS OF LOCAL LAW
AND PRACTICE; AND ONLY IN EXCEPTIONAL CASES WILL THIS COURT REVIEW A
DETERMINATION OF SUCH A QUESTION BY THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA.  P. 718. 

GRIFFIN V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PETITIONER'S MOTION FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED
EVIDENCE WAS DENIED BY THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA.  AN APPEAL WAS DISMISSED BY THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT WITHOUT OPINION.  THIS
COURT GRANTED CERTIORARI.  335 U.S. 866.  REMANDED WITH INSTRUCTIONS,
P. 718. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS BROUGHT HERE UNDER SEC. 1254(1) OF TITLE 28 OF THE
U.S.C. TO REVIEW THE DISMISSAL BY THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA OF AN APPEAL FROM THE DENIAL OF A MOTION FOR A NEW TRIAL ON
THE GROUND OF EVIDENCE DISCOVERED AFTER THE PETITIONER HAD BEEN
CONVICTED OF MURDER IN THE FIRST DEGREE.  335 U.S. 866.  THE DECISIVE
ISSUE IS THE ADMISSIBILITY OF THAT EVIDENCE.  THE QUESTION ARISES NOT
THROUGH ITS EXCLUSION AT TRIAL BUT ON A MOTION FOR A NEW TRIAL IN ORDER
TO BE ABLE TO INTRODUCE IT AS NEWLY DISCOVERED. 

THE PETITIONER, BAXTER GRIFFIN, WAS CONVICTED OF THE MURDER OF LEE
HUNTER.  THE KILLING WAS THE OUTCOME OF A QUARREL.  ADMITTING THAT HE
SHOT HUNTER, GRIFFIN CLAIMED THAT HE DID SO IN SELF-DEFENSE.  HIS STORY
WAS THAT THE DECEASED AND HE WERE PLAYING A CARD GAME CALLED BLACKJACK,
THAT HUNTER DEMANDED A LARGER SHARE OF THE POT THAN WAS HIS RIGHT, AND
THAT UPON HIS REFUSAL TO PAY, HUNTER "JUMPED UP AND STARTED AROUND THE
TABLE, WITH HIS HAND IN HIS POCKET, AND TOLD ME HE WOULD KICK MY TEETH
OUT OF MY HEAD."  ON CROSS-EXAMINATION GRIFFIN ADDED THAT HUNTER
THREATENED TO KILL HIM.  ACCORDINGLY, SO HIS STORY CONTINUED, GRIFFIN
SHOT HUNTER AS HUNTER ADVANCED TOWARD HIM WITH HIS HAND IN HIS POCKET. 
THIS VERSION OF THE OCCURRENCE WAS CONTRADICTED BY FIVE GOVERNMENT
WITNESSES.  EACH TESTIFIED THAT PETITIONER STARTED THE ARGUMENT, AND
THAT IT HAD NOTHING TO DO WITH THE CARD GAME WHICH, ACCORDING TO THEIR
ACCOUNT, WAS OVER BEFORE THE FRACAS BEGAN.  ACCORDING TO THEM, THIS IS
WHAT HAPPENED:  GRIFFIN MADE SOME REMARK TO HUNTER ABOUT TAKING
HUNTER'S WIFE AND BABY AROUND TO GRIFFIN'S HOUSE; HUNTER REPLIED THAT
HE WOULD KICK PETITIONER'S TEETH DOWN HIS THROAT; GRIFFIN THEREUPON
LEFT THE HOUSE AND RETURNED WITHIN TEN MINUTES WITH A GUN, AND ON HIS
RETURN SHOT HUNTER, WHO HAD MADE NO MOVE FROM THE SPOT WHERE HE WAS
STANDING.  GRIFFIN ADMITTED THAT HE SAW NOTHING IN HUNTER'S HAND AT THE
TIME HE SHOT HUNTER.  ON THE EVIDENCE, AS SUMMARIZED, THE JURY ON MARCH
28, 1947, FOUND GRIFFIN GUILTY OF MURDER IN THE FIRST DEGREE; ON APRIL
18, 1947, HE WAS SENTENCED TO DEATH; ON DECEMBER 8, 1947, THE
CONVICTION WAS AFFIRMED, 83 U.S. APP. D.C. 20, 164 F.2D 903; ON MARCH
15, 1948, THIS COURT DENIED CERTIORARI, 333 U.S. 857. 

ON MAY 7, 1948, A LITTLE MORE THAN A MONTH BEFORE THE DAY SET FOR
EXECUTION, GRIFFIN BEGAN THE PRESENT PROCEEDINGS FOR A NEW TRIAL.  IT
WAS BASED ON AFFIDAVITS OF HIS THEN COUNSEL WHO AVERRED THAT IT HAD
RECENTLY COME TO HIS KNOWLEDGE THAT THE ATTENDANT AT THE MORGUE HAD
FOUND AN OPENED PENKNIFE IN THE TROUSERS' POCKET OF THE DECEASED AND
THAT THE PROSECUTOR KNEW OF THIS AT THE TIME OF THE TRIAL BUT FAILED TO
INTRODUCE THIS CIRCUMSTANCE IN EVIDENCE OR MAKE IT AVAILABLE TO THE
DEFENSE.  THE AFFIDAVITS FURTHER ALLEGED THAT THERE WAS EVIDENCE THAT
PLAYING CARDS WERE ON THE FLOOR IMMEDIATELY AFTER THE SHOOTING, A FACT
WHICH WOULD, HAD IT BEEN KNOWN TO THE DEFENSE, HAVE TENDED TO
CORROBORATE GRIFFIN'S STATEMENT THAT THE CARD GAME WAS IN PROGRESS AT
THE TIME OF THE SHOOTING.  AN EXTENDED HEARING WAS HAD ON THE MOTION
FOR A NEW TRIAL.  THE ALLEGATION REGARDING SCATTERED PLAYING CARDS ON
THE FLOOR AT THE TIME OF THE FATAL SHOOTING WAS ADEQUATELY MET, AND
THIS GROUND FOR A NEW TRIAL NEED NOT DETAIN US. 

AS TO GRIFFIN'S DISCOVERY, AFTER HIS CONVICTION WAS AFFIRMED, OF THE
UNDISCLOSED KNIFE IN THE POCKET OF THE DECEASED, THE GOVERNMENT
CONCEDED THAT IT KNEW OF THIS CIRCUMSTANCE AT THE TIME OF THE TRIAL AND
DESPITE THAT KNOWLEDGE NEITHER INTRODUCED THE FACT IN EVIDENCE NOR FELT
ANY DUTY TO MAKE IT KNOWN TO THE DEFENSE.  THE GOVERNMENT JUSTIFIED
THIS ON THE GROUND THAT IN ITS VIEW THE CIRCUMSTANCE OF THE KNIFE WAS
INADMISSIBLE, SINCE KNOWLEDGE OF ITS PRESENCE IN THE POCKET OF THE
DECEASED HAD NOT BEEN COMMUNICATED TO GRIFFIN EITHER BY SIGHT OR
OTHERWISE.  THE DISTRICT JUDGE TOOK THIS VIEW OF THE LAW AND DENIED THE
MOTION FOR A NEW TRIAL.  IN AN UNREPORTED OPINION, HE STATED, "THE
QUESTION WHETHER A PERSON IS JUSTIFIED IN ATTACKING AN ASSAILANT IN
SELF-DEFENSE MUST BE DETERMINED BY THE FACTS WHICH WERE PRESENTED TO
THE PERSON WHO PLEADS SELF-DEFENSE.  HE (GRIFFIN) DID NOT KNOW, IT
APPEARS, THAT THE DECEASED HAD AN OPEN KNIFE IN HIS POCKET, AND
THEREFORE ITS EXISTENCE IS IRRELEVANT."  AN APPEAL HAVING BEEN TAKEN,
THE GOVERNMENT MOVED TO DISMISS THE APPEAL ON THE GROUND THAT "THE
ISSUES RAISED BY APPELLANT'S MOTION FOR A NEW TRIAL WERE FULLY EXPLORED
IN THE COURT BELOW AND THAT THE DISPOSITION MADE OF THEM BY THE TRIAL
COURT WAS MANIFESTLY CORRECT."  THE APPEAL WAS DISMISSED BY A UNANIMOUS
COURT OF APPEALS, PRESIDED OVER BY A JUDGE THAN WHOM NO ONE IS MORE
ALERT IN PROTECTING THE RIGHTS OF THE ACCUSED. 

UNFORTUNATELY, THE COURT OF APPEALS EVIDENTLY THOUGHT THAT THE GROUND
FOR DISMISSING THE APPEAL WAS TOO CLEAR TO REQUIRE EXPLICATION.  IT
DISMISSED THE APPEAL WITHOUT AN EXPRESSION OF VIEWS REGARDING THE
ADMISSIBILITY OF THE EVIDENCE ON WHICH THE CLAIM FOR A NEW TRIAL
RESTS.  IT MAY WELL HAVE DONE SO ON THE GROUND THAT IN THE DISTRICT
EVIDENCE OF THIS NATURE IS INADMISSIBLE.  THAT THIS WAS THE REASON FOR
THE DISMISSAL IS THE VIEW OF SOME MEMBERS OF THIS COURT.  THE OPINION
OF THE COURT OF APPEALS ON A LATER APPEAL FROM THE DENIAL OF A PETITION
FOR HABEAS CORPUS BY GRIFFIN LENDS SUPPORT TO SUCH AN INTERPRETATION OF
THE SUMMARY DISMISSAL OF THE APPEAL NOW UNDER REVIEW.  SEE GRIFFIN V.
CLEMMER, 83 U.S. APP. D.C. 351, 169 F.2D 961.  FN1  BUT SOLICITUDE FOR
LIFE BARS RELIANCE ON SUCH AN INFERENCE, ESPECIALLY SINCE THE ISSUE ON
HABEAS CORPUS IS QUITE DIFFERENT FROM THAT ON APPEAL FROM A DENIAL OF A
MOTION FOR A NEW TRIAL.  IT SEEMS TO US MORE APPROPRIATE FOR THE COURT
OF APPEALS TO ADDRESS ITSELF DIRECTLY TO THE ISSUE OF ADMISSIBILITY. 
THIS IS SO IN ORDER TO RULE OUT THE INFERENCE THAT THE COURT OF APPEALS
MAY, IN APPLYING UNITED STATES V. JOHNSON, 327 U.S. 106, HAVE DEEMED
THE DENIAL OF A MOTION FOR A NEW TRIAL ON THE BASIS OF NEWLY DISCOVERED
EVIDENCE SOLELY A MATTER FOR THE TRIAL COURT'S DISCRETION. 

WERE THE COURT OF APPEALS TO DECLARE THAT THE CONTROVERTED EVIDENCE
WAS ADMISSIBLE ACCORDING TO THE LAW PREVAILING IN THE DISTRICT, IT
WOULD HAVE TO CONSIDER FURTHER WHETHER IT WOULD NOT BE TOO DOGMATIC, ON
THE BASIS OF MERE SPECULATION, FOR ANY COURT TO CONCLUDE THAT THE JURY
WOULD NOT HAVE ATTACHED SIGNIFICANCE TO THE EVIDENCE FAVORABLE TO THE
DEFENDANT HAD THE EVIDENCE BEEN BEFORE IT. IF THE COURT OF APPEALS HAD
DECIDED THAT THE DISPUTED EVIDENCE WAS NOT ADMISSIBLE IN THE DISTRICT
OF COLUMBIA ON A CLAIM OF SELF-DEFENSE AND ON THAT GROUND HAD SUSTAINED
THE DENIAL OF THE MOTION FOR A NEW TRIAL, THERE WOULD HAVE BEEN AN END
OF THE MATTER.  IT IS NOT TO BE ASSUMED THAT THIS COURT WOULD HAVE
GRANTED A PETITION FOR CERTIORARI TO REVIEW THE RULING SINCE THE
DETERMINATION WOULD HAVE BEEN A MATTER OF LOCAL LAW AS ARE THE RULES OF
EVIDENCE PREVAILING IN THE STATE COURTS. 

WE ARE TOLD, HOWEVER, THAT A RULING WHICH DID NOT PERMIT THE
INTRODUCTION OF "UNCOMMUNICATED THREATS" WOULD CONSTITUTE "EGREGIOUS
ERROR" TO BE CORRECTED BY THIS COURT.  FISHER V. UNITED STATES, 328
U.S. 463, 476.  WIGMORE IS VOUCHED AS AUTHORITY THAT UNCOMMUNICATED
THREATS ARE ADMISSIBLE IN "VIRTUALLY ALL COURTS."  BUT WIGMORE
IMMEDIATELY FOLLOWS THE WORDS QUOTED WITH A SERIES OF QUALIFICATIONS
AND LIMITATIONS WHICH PROVE THAT THERE ARE FEW QUESTIONS OF
ADMISSIBILITY IN TRIALS FOR MURDER THAT HAVE OCCASIONED A GREATER
CONTRARIETY OF VIEWS.  SEE 1 WIGMORE, EVIDENCE SEC. 111(3D ED., 1940). 
FN2  BY WAY OF EXAMPLE, MOST JURISDICTIONS HOLD THAT EVIDENCE OF
UNCOMMUNICATED THREATS IS INADMISSIBLE WHERE THERE IS CLEAR PROOF THAT
THE DEFENDANT TOOK THE INITIATIVE, OR WHERE THERE IS NO EVIDENCE THAT
THE DECEASED WAS THE AGGRESSOR OTHER THAN THE PROFFERED UNCOMMUNICATED
THREATS.  WERE THIS THE RULE IN THE DISTRICT, THE DISMISSAL OF THE
APPEAL MAY WELL HAVE BEEN RESTED ON IT, SINCE THERE WAS WEIGHTY PROOF
THAT THE PETITIONER WAS THE AGGRESSOR.  INDEED, FOR ALL WE KNOW THE
COURT OF APPEALS MIGHT HAVE HAD IN MIND A RULE CONCERNING
UNCOMMUNICATED THREATS THAT WOULD ADMIT THEM AND YET GUARD AGAINST THE
DANGER OF FABRICATION BY PLACING UPON THE TRIAL JUDGE THE
RESPONSIBILITY OF EXCLUDING SUCH ALLEGED THREATS AGAINST THE DEFENDANT
IN THE ABSENCE OF PROOF SATISFACTORY TO HIM OF SOME HOSTILE
MANIFESTATION BY THE DECEASED RELEVANT TO THE KILLING.  AT LEAST ONE
STATE HAS SOME SUCH RULE.  STATE V. CARTER, 197 LA. 155, 158, 1 SO.2D
62, 63.  THIS IS NOT TO REJECT AS UNREASONABLE A RULE, FOLLOWED BY SOME
COURTS, THAT WOULD LET THE EVIDENCE IN, EVEN WHERE ALL OTHER WITNESSES
OPPOSE A DEFENDANT'S VERSION OF THE KILLING. 

ONE THING IS CLEAR.  THERE IS NO "FEDERAL RULE" ON THIS SUBJECT.  THE
DECISION IN WIGGINS V. UTAH, 93 U.S. 465, DOES NOT PURPORT TO LAY DOWN
A GENERAL RULE, NOR DOES IT EVEN FORMULATE THE EVIDENTIARY PROBLEM NOW
IN CONTROVERSY.  IN THAT CASE, IN LIGHT OF THE FACT THAT THERE WAS NO
OTHER IDENTIFICATION OF THE AGGRESSOR, PROOF WAS OFFERED THAT THE
DECEASED HAD EXHIBITED A PISTOL A FEW MINUTES BEFORE THE SHOOTING AND
HAD SAID, THOUGH OUT OF THE HEARING OF THE ACCUSED, THAT "HE WOULD KILL
DEFENDANT BEFORE HE WENT TO BED THAT NIGHT," AND THIS COURT NATURALLY
HELD THAT THIS EVIDENCE SHOULD HAVE BEEN ADMITTED.  IT DID SO BECAUSE
"IT WOULD HAVE TENDED STRONGLY TO SHOW WHERE THAT FIRST SHOT CAME FROM,
AND HOW THAT PISTOL, WITH ONE CHAMBER EMPTIED, CAME TO BE FOUND ON THE
GROUND."  WIGGINS V. UTAH, SUPRA AT 470. 

BUT EVEN ASSUMING THAT THE "FEDERAL RULE" IS THAT THE EVIDENCE
DESCRIBED IN THE MOTION FOR A NEW TRIAL WOULD BE ADMISSIBLE, IT DOES
NOT FOLLOW THAT IT MUST ALSO BE THE RULE FOR THE DISTRICT OF COLUMBIA. 
THIS COURT, IN ITS DECISIONS, AND CONGRESS, IN ITS ENACTMENT OF
STATUTES, HAVE OFTEN RECOGNIZED THE APPROPRIATENESS OF ONE RULE FOR THE
DISTRICT AND ANOTHER FOR OTHER JURISDICTIONS SO FAR AS THEY ARE SUBJECT
TO FEDERAL LAW.  THUS, THE "FEDERAL RULE" IN FIRST-DEGREE MURDER CASES
IS THAT, UNLESS THE JURY BY UNANIMOUS VOTE AGREES THAT THE PENALTY
SHOULD BE DEATH, THE COURT MUST FIX THE SENTENCE AT IMPRISONMENT FOR
LIFE.  35 STAT. 1151, 1152, 18 U.S.C. SEC. 567, NOW 18 U.S.C. SEC.
1111(1948), ANDRES V. UNITED STATES, 333 U.S. 740.  BUT A DEFENDANT
CONVICTED OF FIRST-DEGREE MURDER IN THE DISTRICT CANNOT LOOK TO THE
JURY TO SOFTEN THE PENALTY; HE MUST BE GIVEN THE DEATH SENTENCE.  31
STAT. 1321, 43 STAT. 799, D.C. CODE SEC. 22-2404, JOHNSON V. UNITED
STATES, 225 U.S. 405.  FURTHERMORE, THE COURT'S DECISION IN FISHER V.
UNITED STATES, 328 U.S. 463, MAKES CLEAR THAT WHEN WE REFUSED TO
REVERSE THE COURT OF APPEALS FOR THE DISTRICT WE WERE NOT ESTABLISHING
ANY "FEDERAL RULE" IN INTERPRETING THE MURDER STATUTES WHICH APPLY IN
PLACES OTHER THAN THE DISTRICT OF COLUMBIA OVER WHICH CONGRESS HAS
JURISDICTION.  IN FACT, THIS COURT HAS BEEN AT PAINS TO POINT OUT THAT
"CONGRESS  ...  RECOGNIZED THE EXPEDIENCY OF SEPARATE PROVISIONS"
PERTAINING TO CRIMINAL JUSTICE APPLICABLE EXCLUSIVELY TO THE DISTRICT
OF COLUMBIA IN CONTRADISTINCTION TO THE CRIMINAL CODE GOVERNING
OFFENSES AMENABLE TO FEDERAL JURISDICTION ELSEWHERE.  JOHNSON V. UNITED
STATES, 225 U.S. 405, 418. 

MANY STATUTES REFLECT THIS DISTINCTIVE POSITION OF THE DISTRICT IN
MATTERS OF CRIMINAL LAW.  COMPARE 35 STAT. 1149, 18 U.S.C. SEC.
516("FEDERAL" ADULTERY STATUTE), NOW REPEALED, 18 U.S.C. P. 2415(1948),
WITH 31 STAT. 1332, D.C. CODE SEC. 22-301(DISTRICT ADULTERY STATUTE);
COMPARE 35 STAT. 1143, 18 U.S.C. SECS. 2031, 2032(1948)("FEDERAL" RAPE
STATUTE) WITH 31 STAT. 1322, 41 STAT. 567, 43 STAT. 798, D.C. CODE SEC.
22-2801(DISTRICT RAPE STATUTE); COMPARE 35 STAT. 1144, 18 U.S.C. SEC.
2111(1948)("FEDERAL" ROBBERY STATUTE) WITH 31 STAT. 1322, D.C. CODE
SEC. 22-2901(DISTRICT ROBBERY STATUTE); COMPARE 35 STAT. 1144, 18
U.S.C. SEC. 466("FEDERAL" LARCENY STATUTE), NOW REPEALED, 18 U.S.C. P.
2415(1948),  FN3  WITH 31 STAT. 1324, D.C. CODE SEC. 22-2201(DISTRICT
LARCENY STATUTE).  IN FACT, IT REQUIRES TWO VOLUMES TO CONTAIN "ALL THE
GENERAL AND PERMANENT LAWS RELATING TO OR IN FORCE IN THE DISTRICT OF
COLUMBIA, ON JANUARY 3, 1941, EXCEPT SUCH LAWS AS ARE OF APPLICATION IN
THE DISTRICT OF COLUMBIA BY REASON OF BEING LAWS OF THE UNITED STATES
GENERAL AND PERMANENT IN THEIR NATURE."  SEE PREFACE TO DISTRICT OF
COLUMBIA CODE (1940 ED.).  IF CONGRESS CAN ENACT SUBSTANTIVE RULES OF
CRIMINAL LAW EXCLUSIVELY FOR THE DISTRICT OF COLUMBIA,  FN4  THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA OUGHT NOT TO BE DENIED
OPPORTUNITY TO FORMULATE RULES OF EVIDENCE APPROPRIATE FOR THE
DISTRICT, SO LONG AS THE RULES CHOSEN DO NOT OFFEND STATUTORY OR
CONSTITUTIONAL LIMITATIONS.    THE POSITION OF SPOUSES AS WITNESSES
STRIKINGLY ILLUSTRATES THAT THE DISTRICT STANDS APART FROM THE RULE OF
EVIDENCE PREVAILING GENERALLY IN THE FEDERAL COURTS.  THE FEDERAL
COURTS HAVE HELD THAT ONE SPOUSE CANNOT TESTIFY AGAINST THE OTHER
UNLESS THE DEFENDANT SPOUSE WAIVES THE PRIVILEGE.  MILES V. UNITED
STATES, 103 U.S. 304; BASSETT V. UNITED STATES, 137 U.S. 496; CF.
UNITED STATES V. MITCHELL, 137 F.2D 1006, 1008(C.A.2D CIR.).  SINCE
THIS COURT IN THE FUNK CASE LEFT OPEN THE QUESTION WHETHER THIS RULE
SHOULD BE CHANGED, FUNK V. UNITED STATES, 290 U.S. 371, 373, IT
PRESUMABLY IS STILL THE "FEDERAL RULE" FOR THE LOWER COURTS.  IN THE
DISTRICT, HOWEVER, THE RULE HAS LONG BEEN OTHERWISE.  HALBACK V. HILL,
49 APP. D.C. 127, 261 F. 1007; BUFORD V. BUFORD, 81 U.S. APP. D.C. 169,
170, 156 F.2D 567, 568; CF. DOBBINS V. UNITED STATES, 81 U.S. APP. D.C.
218, 157 F.2D 257; 31 STAT. 1358, D.C. CODE SEC. 14-306.  ANOTHER
EXAMPLE IS AFFORDED BY THE FACT THAT THE STATUTE JUST CITED ALSO
PROVIDED THAT ONE SPOUSE COULD TESTIFY IN FAVOR OF THE OTHER IN CASES
IN THE DISTRICT WHEN THE "FEDERAL RULE" WAS STILL TO THE CONTRARY. 
COMPARE JIN FUEY MOY V. UNITED STATES, 254 U.S. 189; HENDRIX V. UNITED
STATES, 219 U.S. 79, BOTH OVERRULED IN FUNK V. UNITED STATES, SUPRA. 

THE PROBLEM OF THE ADMISSIBILITY OF THE EVIDENCE SET FORTH IN THE
MOTION FOR A NEW TRIAL IS SERIOUS AND ITS WISE SOLUTION FULL OF
DIFFICULTY.  THE PROBLEM WAS APPARENTLY NOT EXPLORED BELOW, AND AT THE
BAR OF THIS COURT COUNSEL DID NOT GIVE IT THE CONSIDERATION APPROPRIATE
FOR DETERMINATION OF A FEDERAL ISSUE OF GENERAL IMPORTANCE.  IT WAS NOT
EVEN ARGUED IN THEIR BRIEFS.  UNDER SUCH CIRCUMSTANCES IT IS NOT FOR US
TO ANNOUNCE A RULE FOR THE DISTRICT OF COLUMBIA.  NOTHING THAT HAS BEEN
SAID CONCERNING THE VARIOUS POSSIBLE CHOICES IS INTENDED AS AN
EXPRESSION OF PREFERENCE AMONG THE COMPETING RULES ABOUT THE
ADMISSIBILITY OF UNCOMMUNICATED THREATS, NOR AS THE SLIGHTEST
RESTRICTION UPON THE FREEDOM OF THE COURT OF APPEALS TO MAKE ITS OWN
CHOICE.  WE PURPOSELY WITHHOLD ANY EXPRESSION OF OPINION ON THE MERITS
OF ANY OF THE PERMISSIBLE VIEWS ON ADMISSIBILITY OF THIS EVIDENCE. 
CERTAINLY NOTHING IN OUR DECISIONS FORECLOSES THE COURT OF APPEALS FROM
SELECTING ANY ONE IN THE RANGE OF CHOICES OPEN TO IT, EACH ONE HAVING
SOME RATIONAL BASIS.  THAT COURT HAS HERETOFORE BEEN RECOGNIZED AS THE
APPELLATE TRIBUNAL FOR DETERMINING THE LOCAL RULES OF EVIDENCE; IT ALSO
IS A COURT THAT HAS ACTIVE EXPERIENCE WITH THE JUST AND PRACTICAL
CONSIDERATIONS GOVERNING TRIALS FOR MURDER, PLAINLY OUTSIDE THE
PREOCCUPATION OF THIS COURT. 

IT IS PRECISELY FOR SUCH REASONS THAT FOR A DECADE THE COURT HAS
DECLINED TO REVIEW ALL CONVICTIONS FOR FIRST-DEGREE MURDER IN THE
DISTRICT OF COLUMBIA, WITH A SINGLE EXCEPTION, AND IN EVERY ONE OF
THESE CASES SOME LOCAL RULE OF EVIDENCE WAS AT LEAST IN PART INVOLVED. 
THE APPENDIX, INFRA, P. 719, GIVES A SUMMARY OF THE LEGAL ISSUES
INVOLVED IN THE FOURTEEN CASES IN WHICH WE DENIED A PETITION FOR
CERTIORARI.  THIS COURSE OF DISPOSITION MANIFESTS UNIFORMITY OF RESPECT
BY THIS COURT FOR DISTRICT RULINGS ON EVIDENCE.  FN5  REFERENCE TO THIS
COURSE OF DISPOSITION OF ATTEMPTS TO SECURE REVIEW HERE FOR CONVICTIONS
OF MURDER IN THE DISTRICT IN NO WISE DISREGARDS OUR REPEATED ADMONITION
THAT DENIAL OF A PETITION FOR CERTIORARI IMPORTS NOTHING AS TO THE
MERITS OF A LOWER COURT DECISION.  THESE DENIALS DO NOT REMOTELY IMPLY
APPROVAL OF THE VARIOUS RULINGS ON EVIDENCE MADE IN THESE CASES BY THE
COURT OF APPEALS FOR THE DISTRICT.  WHAT THEY DO ESTABLISH IS THAT IT
HAS BECOME SETTLED PRACTICE FOR THIS COURT TO RECOGNIZE THAT THE
FORMULATION OF RULES OF EVIDENCE FOR THE DISTRICT OF COLUMBIA IS A
MATTER PURELY OF LOCAL LAW TO BE DETERMINED - IN THE ABSENCE OF
SPECIFIC CONGRESSIONAL LEGISLATION - BY THE HIGHEST APPELLATE COURT FOR
THE DISTRICT. 

PREVIOUS TO THIS CASE, THERE WAS, AS HAS BEEN NOTED, A SINGLE
EXCEPTION TO THIS COURT'S CONSISTENT REFUSAL, FOR THE PAST DECADE, TO
BRING HERE FOR REVIEW A CONVICTION FOR MURDER IN THE DISTRICT.  FN6
THE DISPOSITION OF THE EXCEPTION POWERFULLY UNDERLINES THE SIGNIFICANCE
OF THE NECESSITY FOR THE COURT OF APPEALS TO PASS INITIALLY ON THIS
ISSUE.  THE CONVICTION IN THAT CASE WAS AFFIRMED ESSENTIALLY ON THE
PRINCIPLE THAT THE LAW OF EVIDENCE AND PROCEDURE GOVERNING CRIMINAL
TRIALS IN THE DISTRICT OF COLUMBIA IS IN THE KEEPING OF THE COURT OF
APPEALS FOR THE DISTRICT AND IS NOT TO BE EXERCISED BY THIS COURT. 
"THE ADMINISTRATION OF CRIMINAL LAW IN MATTERS NOT AFFECTED BY
CONSTITUTIONAL LIMITATIONS OR A GENERAL FEDERAL LAW IS A MATTER
PECULIARLY OF LOCAL CONCERN.  ...  MATTERS RELATING TO LAW ENFORCEMENT
IN THE DISTRICT ARE ENTRUSTED TO THE COURTS OF THE DISTRICT.  OUR
POLICY IS NOT TO INTERFERE WITH THE LOCAL RULES OF LAW WHICH THEY
FASHION, SAVE IN EXCEPTIONAL SITUATIONS WHERE EGREGIOUS ERROR HAS BEEN
COMMITTED."  SUCH WERE THE VIEWS WHICH DETERMINED DECISION IN FISHER V.
UNITED STATES, 328 U.S. 463, 476.  WHILE THE FISHER CASE EVOKED
DISSENT, IT WAS A DECISION RENDERED AFTER THE COURT OF APPEALS HAD
FULLY DECLARED ITS VIEWS OF THE LAW, AND NONE OF THE CONSIDERATIONS
THAT MOVED THE DISSENTERS IN THAT CASE IS EVEN REMOTELY PRESENT IN THE
CASE NOW BEFORE US. 

WE MUST THEREFORE REMAND THE CASE TO THE COURT OF APPEALS WITH
INSTRUCTIONS TO DECIDE, IN THE FIRST INSTANCE, WHAT RULE SHOULD PREVAIL
IN THE DISTRICT OF COLUMBIA.  TO DO OTHERWISE WOULD CONSTITUTE AN
UNWARRANTED DEPARTURE FROM A WISE RULE OF PRACTICE IN OUR CONSIDERATION
OF CASES COMING HERE FROM THE COURT OF APPEALS OF THE DISTRICT.  "THERE
ARE COGENT REASONS WHY THIS COURT SHOULD NOT UNDERTAKE TO DECIDE
QUESTIONS OF LOCAL LAW WITHOUT THE AID OF SOME EXPRESSION OF THE VIEWS
OF JUDGES OF THE LOCAL COURTS WHO ARE FAMILIAR WITH THE INTRICACIES AND
TRENDS OF LOCAL LAW AND PRACTICE.  WE DO NOT ORDINARILY DECIDE SUCH
QUESTIONS WITHOUT THAT AID WHERE THEY MAY CONVENIENTLY BE DECIDED IN
THE FIRST INSTANCE BY THE COURT WHOSE SPECIAL FUNCTION IT IS TO RESOLVE
QUESTIONS OF THE LOCAL LAW OF THE JURISDICTION OVER WHICH IT PRESIDES. 
HUDDLESTON V. DWYER, 322 U.S. 232, 237, AND CASES CITED.  ONLY IN
EXCEPTIONAL CASES WILL THIS COURT REVIEW A DETERMINATION OF SUCH A
QUESTION BY THE COURT OF APPEALS FOR THE DISTRICT."  BUSBY V. ELECTRIC
UTILITIES EMPLOYEES UNION, 323 U.S. 72, 74-75.  REMANDED. 

FN1  IN GRIFFIN V. CLEMMER, 83 U.S. APP. D.C. 351, 169 F.2D 961, THE
COURT OF APPEALS HAD BEFORE IT AN APPEAL FROM THE DENIAL OF A PETITION
FOR A WRIT OF HABEAS CORPUS ALLEGING THAT GRIFFIN'S DETENTION WAS
ILLEGAL BECAUSE THE CONVICTION WAS PROCURED BY UNFAIR CONDUCT ON THE
PART OF THE PROSECUTOR.  THIS WAS FILED BY GRIFFIN AFTER THE COURT OF
APPEALS HAD DISMISSED THE APPEAL FROM THE DENIAL OF THE MOTION FOR A
NEW TRIAL BUT BEFORE THIS COURT GRANTED THIS PETITION FOR CERTIORARI. 
THE CLAIM OF UNFAIRNESS WAS BASED ON THE FAILURE TO DISCLOSE THE
FINDING OF THE PENKNIFE ON HUNTER.  IN EFFECT THIS WAS A CLAIM OF LACK
OF JURISDICTION IN THE COURT, ACCORDING TO THE DOCTRINE OF JOHNSON V.
ZERBST, 304 U.S. 458.  THE COURT OF APPEALS DEEMED THE EVIDENCE TO BE
IRRELEVANT TO THAT PROCEEDING.  IT IS TOO PRECARIOUS TO TREAT THIS AS A
HOLDING ON THE ADMISSIBILITY OF THE EVIDENCE. 

FN2  IT IS PERTINENT TO QUOTE AT LENGTH WIGMORE'S STATEMENTS ON THIS
SUBJECT: 

"THIS EVIDENCE (UNCOMMUNICATED THREATS) IS NOW CONCEDED TO BE
ADMISSIBLE, BY VIRTUALLY ALL COURTS.  BUT THE FOLLOWING DISCRIMINATIONS
MUST BE NOTED: 

     .         .         .         .       . 

"(3)  THERE IS MUCH OPPORTUNITY FOR ABUSE OF THIS SORT OF EVIDENCE. 
NOT ONLY MAY IT BE MANUFACTURED; BUT, EVEN WHEN GENUINE, IT MAY BE
EMPLOYED IMPROPERLY TO HELP THE DEFENDANT BY WAY OF JUSTIFICATION,  -
IN CERTAIN COMMUNITIES AT LEAST, WHERE THE COURTS HAVE BEEN COMPELLED
REPEATEDLY TO MAKE CLEAR THE LAW THAT A THREAT TO SHOOT ANOTHER IS NO
JUSTIFICATION FOR THE LATTER TO KILL ON SIGHT.  FOR THESE REASONS
VARIOUS LIMITATIONS HAVE BEEN ATTEMPTED: 

"(A)  THE EVIDENCE OF THREAT IS INADMISSIBLE WHERE THERE IS CLEAR
EVIDENCE THAT THE DEFENDANT WAS THE AGGRESSOR.  MOST JURISDICTIONS
ADOPT THIS RULE, AND NONE SEEM TO NEGATIVE IT. 

"(B)  FURTHERMORE, THE THREAT IS ONLY ADMISSIBLE (AS MOST COURTS
PROVIDE) WHERE THERE IS SOME OTHER EVIDENCE OF AN AGGRESSION BY THE
DECEASED.  THIS IS USUALLY EXPRESSED BY SAYING THAT THERE MUST HAVE
BEEN SOME 'DEMONSTRATION OF HOSTILITY,' OR, MORE SHORTLY, SOME 'OVERT
ACT,' BY THE DECEASED.  IT IS DIFFICULT TO SAY WHETHER THIS LIMITATION
ORIGINATED IN THE "RES GESTOE" NOTION (INFRA) OR IN A RULE OF CRIMINAL
LAW THAT AN OVERT ACT IS A NECESSARY ELEMENT OF THE JUSTIFICATION OF
SELF-DEFENCE, OR MERELY IN A GENERAL POLICY OF PREVENTING THE ABUSE OF
THIS EVIDENCE.  AT ANY RATE, IT SEEMS A SATISFACTORY LIMITATION,
PROVIDED THE MULTIPLICATION OF QUIBBLES AS TO 'OVERT ACTS' IS AVOIDED
BY LEAVING THE WHOLE MATTER IN THE HANDS OF THE TRIAL JUDGE; FOR IT
PREVENTS THE DEFENDANT FROM TRYING TO USE THE THREATS AS A MERE PRETEXT
FOR JUSTIFYING THE KILLING OF ONE WHO WAS MAKING NO ACTUAL ATTEMPT TO
INJURE HIM. 

"(C)  ANOTHER CONDITION, SOMETIMES SUGGESTED, BUT INCONSISTENT WITH
AND MORE STRINGENT THAN THE PRECEDING ONE, IS THAT THE THREAT SHOULD BE
RECEIVED ONLY WHEN THERE IS NO OTHER DIRECT EVIDENCE AS TO WHO WAS THE
AGGRESSOR, I.E. WHEN THERE WERE NO EYE-WITNESSES.  PERHAPS IN PRACTICE
A COMBINATION OF (B) AND (C) WOULD BE THE BEST; I.E. TO ADMIT THE
EVIDENCE WHEN BY EYE-WITNESSES THERE WAS SOME OTHER EVIDENCE OF THE
DECEASED'S AGGRESSION, OR WHEN THERE WERE NO EYE-WITNESSES TO THE
AFFAIR. 

"(4)  ANOTHER AND ADDITIONAL USE, INDEPENDENT OF THE PRECEDING,
RECEIVES THE UNCOMMUNICATED THREAT IN 'CONFIRMATION' OR 'CORROBORATION'
OF COMMUNICATED THREATS.  THIS IS USUALLY COUPLED WITH ONE OF THE
PRECEDING LIMITATIONS AS AN ALTERNATIVE CONDITION OF ADMISSION. 

"(5)  THE DOCTRINE OF "RES GESTAE" IS SOMETIMES INVOKED AS THE GROUND
OF RECEIVING THE EVIDENCE; AND THE SAME NOTION UNDERLIES THE OCCASIONAL
SUGGESTION THAT THE THREATS 'CHARACTERIZE' THE DECEASED'S CONDUCT. 
THIS EMPLOYMENT OF "RES GESTAE" AS A VEIL FOR OBSCURITY OF THOUGHT IS
ELSEWHERE EXAMINED (POST, SEC. 1795); AND IT IS ENOUGH HERE TO SAY THAT
IT HAS NO POSSIBLE APPLICATION TO THIS KIND OF EVIDENCE, AND CANNOT BE
MADE TO FIT ITS RULES; THE SOONER SUCH PHRASES ARE ABANDONED, THE
BETTER FOR CLEARNESS OF LEGAL THOUGHT. 

"(6)  IN SOME JURISDICTIONS IT IS IMPOSSIBLE TO ASCERTAIN THE EXACT
RULE.  PREVIOUS PRECEDENTS ARE IGNORED, INCONSISTENT TESTS LAID DOWN IN
SUCCEEDING RULINGS, DECISIONS IN OTHER JURISDICTIONS ARE CITED TO THE
EXCLUSION OF LOCAL PRECEDENTS; AND THE OFTENER THE MATTER COMES UP FOR
A RULING, THE MORE IT IS OBSCURED. 

"(7)  THE PROSECUTION MAY OF COURSE REBUT THE EVIDENCE OF THREATS BY
COUNTER-TESTIMONY OF THE DECEASED'S PEACEFUL PLANS.  IT WOULD SEEM ALSO
THAT, WHENEVER THE DECEASED'S AGGRESSION IS IN ISSUE, THE PROSECUTION
COULD BEGIN WITH ITS EVIDENCE OF PEACEFUL PLANS.  THE PROSECUTION MAY
ALSO, ON THE PRINCIPLE OF SEC. 63, ANTE, REBUT BY EVIDENCE OF THE
DECEASED'S PEACEFUL CHARACTER. 

"(8)  THERE MAY BE SUNDRY OTHER CASES IN WHICH THE THREATS OF A
DECEASED PERSON WOULD BE RELEVANT APART FROM THE PRESENT DOCTRINES. 

"(9)  THE THREATS OF A THIRD PERSON MAY ALSO BE ADMITTED, WHERE IT IS
DESIRED TO SHOW THAT HE, AND NOT THE ACCUSED, WAS THE AGGRESSOR. 

"(10)  IN OTHER ISSUES IN WHICH THE AGGRESSION OF THE PLAINTIFF OR
PROSECUTING WITNESS IS MATERIAL, HIS THREATS ARE ADMISSIBLE ON THE
FOREGOING PRINCIPLES. 

"(11)  OTHER CONDUCT OF THE DECEASED, NOT AMOUNTING TO THREATS, BUT
INDICATING A MOTIVE TO ATTACK (ON THE PRINCIPLE OF SEC. 390, POST) MAY
BE ADMITTED, BY THE LOGIC OF THE PRESENT RULE, WITHOUT SHOWING PRIOR
COMMUNICATION TO THE DEFENDANT."  1 WIGMORE, EVIDENCE, SEC. 111(3D ED.,
1940). 

FN3  THE REPEAL OF THE SPECIFIC PROVISIONS ON ADULTERY AND LARCENY
DOES NOT DETRACT FROM THEIR ILLUSTRATIVE SIGNIFICANCE. 

FN4  "  ...  THERE IS CERTAINLY NOTHING ANOMALOUS IN PUNISHING THE
CRIME OF MURDER DIFFERENTLY IN DIFFERENT JURISDICTIONS.  IT IS BUT THE
APPLICATION OF LEGISLATION TO CONDITIONS.  BUT IF IT BE ANOMALOUS, VERY
LITTLE ARGUMENT CAN BE DRAWN FROM IT TO SOLVE THE QUESTIONS IN
CONTROVERSY.  THE DIFFERENCE EXISTED FOR A NUMBER OF YEARS BETWEEN THE
DISTRICT AND OTHER PLACES UNDER NATIONAL JURISDICTION, FOR, AS WE HAVE
SEEN, THE QUALIFIED VERDICT HAS NOT EXISTED IN THE DISTRICT SINCE THE
ENACTMENT OF THE DISTRICT CODE, AND DID NOT EXIST WHEN THE CRIMINAL
CODE WAS ENACTED.  ... 

"CONGRESS CERTAINLY IN ENACTING THE DISTRICT CODE, RECOGNIZED THE
EXPEDIENCY OF SEPARATE PROVISIONS FOR THE DISTRICT OF COLUMBIA.  IT WAS
SAID AT THE BAR AND NOT DENIED THAT THE DISTRICT CODE WAS NOT ONLY THE
WORK OF THE LAWYERS OF THE DISTRICT, HAVING IN MIND THE NEEDS OF THE
DISTRICT, BUT OF ITS CITIZENS AS WELL, EXPRESSED THROUGH VARIOUS
ORGANIZATIONS AND BODIES OF THEM.  IN YIELDING TO THE RECOMMENDATIONS
CONGRESS MADE NO NEW PRECEDENT.  IT HAD GIVEN LOCAL CONTROL TO THE
TERRITORIES, AND IT ENACTED A SEPARATE CODE FOR ALASKA."  JOHNSON V.
UNITED STATES, 225 U.S. 405, 417-418. 

FN5  TO COMPARE THIS IMPRESSIVE COURSE OF DISPOSITION WITH THE FACT
THAT WE HAVE GRANTED LITTLE OVER 5% OF PETITIONS IN FORMA PAUPERIS ON
BEHALF OF CONVICTS IS TO TREAT STATISTICS AS THOUGH THEY WERE MERELY
FIGURES WITHOUT MEANING.  THE MASS OF THESE IN FORMA PAUPERIS
PETITIONS, USUALLY DRAWN BY LAYMEN, ARE PATHETICALLY TRIVIAL AND
FRIVOLOUS ENDEAVORS BY THOSE INCARCERATED TO PROCURE THEIR FREEDOM
AFTER ALL OTHER HOPE HAS FADED.  TO DRAW INFERENCES FROM THIS 5% FIGURE
IS TO TREAT AS FUNGIBLE DENIALS OF CERTIORARI BECAUSE NO FEDERAL
QUESTION IS RAISED, DENIALS BECAUSE THE STATE REMEDIES WERE NOT
EXHAUSTED, AND DENIALS FOR OTHER UNRELATED JURISDICTIONAL REASONS.  THE
FOURTEEN PETITIONS FOR CERTIORARI FOR THE DISTRICT OF COLUMBIA WERE OF
A WHOLLY DIFFERENT NATURE.  THEY WERE ALL CASES IN WHICH THE PETITIONER
WAS REPRESENTED BY COUNSEL AND IN WHICH THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA HAD CONSIDERED SERIOUSLY ERRORS CLAIMED TO HAVE
OCCURRED IN THE COURSE OF THE TRIAL - THEY WERE ALL ADJUDICATIONS ON
THE MERITS.  OUR CONSISTENT DENIALS UNDER THESE CIRCUMSTANCES ARE MUTE
EVIDENCE, NOT OF APPROVAL OR DISAPPROVAL, BUT OF DEFERENCE TO THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA ON RULES OF EVIDENCE PREVAILING
IN THE DISTRICT.    FN6  THE SITUATION IN ENGLAND REGARDING APPEALS IN
CRIMINAL CASES IS NOT WITHOUT ILLUMINATION ON THE IMPORTANCE OF
ABSTENTION BY THIS COURT IN CRIMINAL CASES ALREADY DECIDED BY TWO
COURTS.  BETWEEN THE ESTABLISHMENT OF THE COURT OF CRIMINAL APPEAL BY
THE CRIMINAL APPEAL ACT OF 1907 AND THE END OF 1947, THERE HAVE BEEN
585 APPEALS IN MURDER CASES TO THAT COURT.  IN THE SAME PERIOD THERE
HAVE BEEN ONLY FOUR APPEALS FROM THAT COURT TO THE HOUSE OF LORDS. 
SUCH APPEALS CAN ONLY BE TAKEN IF "THE DIRECTOR OF PUBLIC PROSECUTIONS
OR THE PROSECUTOR OR DEFENDANT OBTAINS THE CERTIFICATE OF THE ATTORNEY
GENERAL THAT THE DECISION OF THE COURT OF CRIMINAL APPEAL INVOLVES A
POINT OF LAW OF EXCEPTIONAL PUBLIC IMPORTANCE, AND THAT IT IS DESIRABLE
IN THE PUBLIC INTEREST THAT A FURTHER APPEAL SHOULD BE BROUGHT."  THE
CRIMINAL APPEAL ACT, 1907, 7 EDW.  VII, C. 23. 

WE ARE INDEBTED FOR THE ABOVE FIGURES TO THE KINDNESS OF THE ATTORNEY
GENERAL OF ENGLAND, THE RT. HON. SIR HARTLEY SHAWCROSS. 

(FOR DISSENTING OPINION OF MR. JUSTICE MURPHY, SEE POST, P. 721.) 

             GRIFFIN V. UNITED STATES. 

APPENDIX TO OPINION OF THE COURT. 

SUMMARY OF DISPOSITION OF PETITIONS FOR CERTIORARI TO THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA TO REVIEW 

DEATH SENTENCES ON CONVICTION FOR FIRST-DEGREE MURDER SINCE 1938. 
(CHART OMITTED) 

MR. JUSTICE MURPHY, DISSENTING. 

BAXTER GRIFFIN HAS BEEN SENTENCED TO DIE FOR THE MURDER OF LEE
HUNTER.  HIS JUSTIFICATION FOR THE KILLING WAS SELF-DEFENSE.  HE HAS
FOUND THAT HUNTER HAD AN OPEN KNIFE IN HIS POCKET WHEN HE WAS SHOT.  HE
SEEKS A NEW TRIAL ON THE BASIS OF THAT NEWLY-DISCOVERED EVIDENCE.  THE
FIRST QUESTION IS WHETHER THAT EVIDENCE WOULD BE ADMISSIBLE AT A NEW
TRIAL. 

IT IS CLEAR TO ME THAT IT IS ADMISSIBLE.  UNCOMMUNICATED THREATS AND
DESIGNS ON THE DEFENDANT CANNOT SHOW HIS MOTIVE IN KILLING, BUT THEY
MAY DEMONSTRATE THAT A DESIGN ON THE DEFENDANT DID IN FACT EXIST.  THIS
IS THE RULE IN "VIRTUALLY ALL COURTS."  1 WIGMORE, EVIDENCE (3D ED.,
1940), SEC. 111, P. 547.  IT IS CERTAINLY THE FEDERAL RULE.  WIGGINS V.
UTAH, 93 U.S. 465; TRAPP V. NEW MEXICO, 225 F. 968.  AND IT IS A
THOROUGHLY DESIRABLE RULE.  A DEFENDANT SHOULD BE ENTITLED TO PRESENT
THE JURY WITH EVIDENCE LENDING CREDENCE TO HIS THEORY OF THE CASE. 
GRIFFIN'S CASE IS A GOOD EXAMPLE OF THE POLICY BEHIND THE RULE:  FOR
THE OPEN KNIFE IS THE ONLY SUPPORTING EVIDENCE OF HIS SELF-DEFENSE
TESTIMONY. 

THERE CAN BE LITTLE QUESTION THAT THE OPEN KNIFE IS AN ELEMENT IN THE
PROOF OF A DESIGN ON THE DEFENDANT, AND IS ADMISSIBLE UNDER THE RULE
STATED ABOVE.  BUT SOME COURTS HAVE MADE EXCEPTIONS TO THIS RULE, THREE
OF WHICH MIGHT BE CONSIDERED RELEVANT IN THIS CASE.  WIGMORE, SUPRA,
SEC. 111(3).  THE EXCEPTIONS HAVE A CENTRAL FOUNDATION:  DISTRUST OF
THE JURY'S ABILITY TO EVALUATE THIS KIND OF EVIDENCE.  MANY RULES OF
EXCLUSION ARE BOTTOMED ON THIS DISTRUST, OF COURSE.  BUT IT IS CLEARLY
MISPLACED WHEN DIRECTED AT THE JURY'S CAPABILITY IN WEIGHING THE VALUE
OF UNCOMMUNICATED THREATS IN A MURDER TRIAL.  THE EVIDENCE IS SIMPLE;
IT IS NOT CALCULATED TO INFLAME; IT IS FAR MORE DIFFICULT TO FABRICATE
THAN ARE COMMUNICATED THREATS; THE PROSECUTION CAN EASILY QUESTION ITS
IMPORTANCE; AND IT PROVIDES SOLID SUPPORT FOR A DEFENDANT'S SELF
DEFENSE THEORY.  WHILE IN GRIFFIN'S CASE THE EVIDENCE IS STRONGER FOR
THE PROSECUTION THAN IT WAS IN WIGGINS', SUPRA, THAT DIFFERENCE IS NOT
A DISTINCTION.  THE VERY PLEA OF SELF-DEFENSE RAISES DOUBT ON THAT
QUESTION.  DEFENDANT'S TESTIMONY, SUPPORTING HIS PLEA, RAISES FURTHER
DOUBT. 

IT IS CLEAR THAT THIS EVIDENCE MIGHT CHANGE THE JURY'S VERDICT.  TO
MAKE ADMISSIBILITY DEPEND UPON MECHANICAL AND OFTEN ILLOGICAL
VARIATIONS IN THE SIZE OF THE DOUBT IN A JUDGE'S MIND IS AN INVASION OF
THE JURY'S FUNCTION.  "IT IS PERTINENT HERE TO REMARK, THAT BOTH THE
EFFECT OF (THE WITNESSES') TESTIMONY AND (THEIR) CREDIBILITY WERE TO BE
WEIGHED BY THE JURY."  WIGGINS V. UTAH, SUPRA, AT 469. 

THE COURT MAKES LITTLE ATTEMPT TO JUSTIFY THE EXCLUSION OF THIS
EVIDENCE.  INSTEAD, IT CITES FISHER V. UNITED STATES, 328 U.S. 463. 
THE FISHER CASE DECLINED TO UPSET AN EVIDENCE RULE THAT HAD "LONG BEEN
THE LAW OF THE DISTRICT OF COLUMBIA":  THAT "MENTAL DEFICIENCY WHICH
DOES NOT SHOW LEGAL IRRESPONSIBILITY" IS NOT "A RELEVANT FACTOR IN
DETERMINING WHETHER AN ACCUSED IS GUILTY OF MURDER IN THE FIRST OR
SECOND DEGREE."  THE COURT STATED THE GENERAL RULE THAT "MATTERS
RELATING TO LAW ENFORCEMENT IN THE DISTRICT ARE ENTRUSTED TO THE COURTS
OF THE DISTRICT" IN A CASE IN WHICH A REVERSAL WOULD HAVE BEEN A
"RADICAL DEPARTURE FROM COMMON LAW CONCEPTS" AND THUS "MORE PROPERLY A
SUBJECT FOR THE EXERCISE OF LEGISLATIVE POWER OR AT LEAST FOR THE
DISCRETION OF THE COURTS OF THE DISTRICT."  328 U.S. AT 471, 473, 476. 

IN FISHER, THE COURT CONSIDERED THE JUDICIARY'S CASE-BY-CASE METHOD
ILL SUITED FOR THE SWEEPING CHANGES WHICH WERE AND ARE NECESSARY IN THE
LAW OF INSANITY.  IT RECOGNIZED THAT AN INDIRECT ATTACK ON THE PROBLEM,
BY ADMITTING EVIDENCE OF ONE'S PAST LIFE AS RELEVANT IN PREMEDITATION,
MIGHT LEAD TO THE TRIAL OF ONE'S WHOLE LIFE RATHER THAN OF THE SPECIFIC
OFFENSE CHARGED. 

DESPITE THE RADICAL NATURE OF THE CHANGE, THREE MEMBERS OF THIS COURT
THOUGHT THAT THE JUDICIARY SHOULD MAKE AN ATTEMPT TO CORRECT THE
INJUSTICE OF THE COMMON-LAW RULES.  THOSE ARGUMENTS WERE REJECTED.  BUT
THEY WERE REJECTED ONLY UPON THE LIMITED BASIS TO WHICH I HAVE
REFERRED. 

TODAY THE COURT EXTENDS THE FISHER RULE.  IT CALLS FISHER A HOLDING
THAT NO DISTRICT OF COLUMBIA RULES OF EVIDENCE ARE REVIEWABLE IN THIS
COURT.  THE FISHER CASE IS NO AUTHORITY FOR SUCH A PROPOSITION.  THERE
IS NO WARRANT FOR IT IN STATUTE.  AND OUR DENIAL OF THIRTEEN PETITIONS
FOR CERTIORARI IN DEATH CASES IN THE DISTRICT IN THE LAST TEN YEARS
CANNOT ESTABLISH SUCH A PROPOSITION.  IN THE LAST TEN COMPLETE TERMS OF
COURT, ONLY 5.1% OF ALL PETITIONS FOR CERTIORARI IN FORMA PAUPERIS HAVE
BEEN GRANTED.  AND THE PERCENTAGE OF PETITIONS FOR CERTIORARI, OTHER
THAN IN FORMA PAUPERIS, GRANTED IN THE SAME PERIOD HAS FLUCTUATED
BETWEEN 14.9 AND 22.7.  FN1  WHEN WE DENY NINETEEN OUT OF TWENTY
PETITIONS IN FORMA PAUPERIS, AND FOUR OUT OF FIVE OF THE OTHER
PETITIONS, THE DENIAL OF PETITIONS IN THIRTEEN CAPITAL CASES IN TEN
YEARS REFLECTS NO GREATER POLICY IN THOSE CASES THAN IT DOES IN ANY
OTHER CLASS OF CASES.  THIS IS PARTICULARLY TRUE WHEN THE SAMPLE -
FIFTEEN CASES - IS SO SMALL COMPARED TO THE NUMBER OF CASES WE ARE
ASKED TO REVIEW, AND WHEN THE SAMPLE CONSIDERS ONLY MURDER CASES. 
"NOTHING IS SO FALLACIOUS AS FACTS, EXCEPT FIGURES."  FOR FIGURES WHICH
DO NOT REVEAL THE PECULIAR FACTS OF EACH CASE CANNOT REFLECT A POLICY
OF ANY KIND. 

SELF-LIMITATION OF OUR APPELLATE POWERS MAY BE A WORTHY THING, BUT IT
IS NOT ATTRACTIVE TO ME WHEN THE BEHEST OF CONGRESS IS OTHERWISE. 
CONGRESS HAS GIVEN THIS COURT THE ULTIMATE POWER TO REVIEW DISTRICT OF
COLUMBIA TRIALS.  NO MATTER HOW THE DECISION IS PHRASED, THE COURT'S
POWER IN THE PREMISES IS SUCH THAT IT IS RESPONSIBLE FOR THE EVIDENCE
RULE IT ASKS THE COURT OF APPEALS TO EXPOUND.  THERE IS NO "RADICAL
DEPARTURE FROM COMMON LAW" RULES IN GRIFFIN'S CASE, AS THERE WAS IN
FISHER'S.  WE SHOULD DECLARE THE EVIDENCE ADMISSIBLE. 

IF THE EVIDENCE IS ADMISSIBLE, A MOTION FOR A NEW TRIAL SHOULD BE
GRANTED.  A CONTRARY DETERMINATION WOULD BE AN ABUSE OF DISCRETION,
FN2  FOR THERE IS MANIFESTLY A REASONABLE POSSIBILITY  FN3  THAT THE
JURY WOULD LESSEN THE VERDICT OF FIRST-DEGREE MURDER. 

FN1  ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS 1948, TABLE A 1. 

FN2  SEE UNITED STATES V. JOHNSON, 327 U.S. 106. 

FN3  THE GOVERNMENT CONCEDES THAT THE "REASONABLE POSSIBILITY"
STANDARD IS PROPER, AT LEAST IN A CAPITAL CASE.  COMPARE WAGNER V.
UNITED STATES, 118 F.2D 801; EVANS V. UNITED STATES, 122 F.2D 461;
WEISS V. UNITED STATES, 122 F.2D 675; BERRY V. GEORGIA, 10 GA. 511. 

THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, AND MR. JUSTICE RUTLEDGE JOIN
IN THIS OPINION. 
..END :



CALIFORNIA V. ZOOK, 336 U.S. 725 


NO. 355.  ARGUED FEBRUARY 8, 1949.  - DECIDED APRIL 25, 1949.  - 87 CAL.
APP.2D SUPP. 921, 197 P.2D 851, REVERSED. 


1.  A CALIFORNIA STATUTE PROHIBITS THE SALE OR ARRANGEMENT OF ANY
TRANSPORTATION OVER THE PUBLIC HIGHWAYS OF THE STATE IF THE
TRANSPORTING CARRIER HAS NO PERMIT FROM THE INTERSTATE COMMERCE
COMMISSION.  THE FEDERAL MOTOR CARRIER ACT HAS SUBSTANTIALLY THE SAME
PROVISION RESPECTING CARRIERS IN INTERSTATE COMMERCE.  RESPONDENTS
OPERATE A TRAVEL BUREAU IN LOS ANGELES, AND RECEIVE COMMISSIONS FOR
ARRANGING "SHARE-EXPENSE" PASSENGER TRANSPORTATION IN PRIVATE
AUTOMOBILES.  STATE LINES ARE CROSSED IN MANY OF THE TRIPS. 
RESPONDENTS WERE CONVICTED OF VIOLATING THE STATE STATUTE.  HELD:  THE
STATE STATUTE, AS SO APPLIED, IS NOT INVALID UNDER THE COMMERCE CLAUSE
OF THE FEDERAL CONSTITUTION.  PP. 726-738. 

2.  THE FACT THAT A FEDERAL LAW AND A STATE LAW AFFECTING INTERSTATE
COMMERCE ARE IDENTICAL DOES NOT AUTOMATICALLY INVALIDATE THE STATE LAW;
THE QUESTION TO BE DETERMINED, BY A JUDGMENT UPON THE PARTICULAR CASE,
IS WHETHER THE STATE LAW CONFLICTS WITH NATIONAL POLICY AND WHETHER
CONGRESS INTENDED TO MAKE ITS JURISDICTION EXCLUSIVE.  PP. 728-731. 

3.  NORMALLY, CONGRESSIONAL PURPOSE TO DISPLACE LOCAL LAWS MUST BE
CLEARLY MANIFESTED; AND, IF THE CLAIM IS CONFLICT IN TERMS, IT MUST
CLEARLY APPEAR THAT THE FEDERAL PROVISIONS ARE INCONSISTENT WITH THOSE
OF THE STATE.  P. 733. 

4.  THE TRADITION OF "USUAL POLICE POWERS" IS OF AID IN DETERMINING
CONGRESSIONAL INTENT AS TO EXCLUDING STATE ACTION ON INTERSTATE
COMMERCE, AT LEAST WHEN CONGRESS HAS LEGISLATED; AND STATES CLEARLY
HAVE AN INTEREST IN REGULATING THE USE OF THEIR OWN HIGHWAYS.  PP. 734
735. 

5.  IN THIS CASE, THERE IS NO CONFLICT IN TERMS BETWEEN THE FEDERAL
AND CALIFORNIA STATUTES, AND NO POSSIBILITY OF SUCH CONFLICT, SINCE THE
STATE STATUTE MAKES FEDERAL LAW THE LAW OF THE STATE IN THIS MATTER. 
P. 735. 

6.  THERE IS NO INDICATION IN THIS CASE THAT CONGRESS INTENDED TO
SUBSTITUTE A UNIFORM FEDERAL LAW FOR DIVERSE STATE LAWS, FOR THERE WAS
LITTLE STATE LEGISLATION ON THE SUBJECT WHEN CONGRESS ACTED.  PP. 735
736. 

7. THE STATE STATUTE IS NOT RENDERED INVALID BY THE FACT THAT IT
IMPOSES HEAVIER PENALTIES THAN THE FEDERAL ACT NOR BY THE POSSIBILITY
OF DOUBLE PUNISHMENT.  PP. 731-733, 735-738. 

8.  DIFFICULTIES CONFRONTING STATE REGULATION OF OTHER PHASES OF
INTERSTATE COMMERCE CAN NOT JUSTIFY EXCLUSION OF THE STATE REGULATION
HERE INVOLVED.  P. 736. 

9.  THE VALIDITY OF THE CALIFORNIA STATUTE HERE INVOLVED, WHICH DOES
NOT CONFLICT WITH INTERSTATE COMMERCE COMMISSION POLICY, IS NOT
AFFECTED BY AN EARLIER STATE STATUTE WHICH DID CONFLICT WITH THAT
POLICY.  P. 737. 

10.  SO FAR AS CASUAL, OCCASIONAL, OR RECIPROCAL TRANSPORTATION OF
PASSENGERS FOR HIRE IS CONCERNED, THE STATE MAY PUNISH AS IT HAS IN THE
PRESENT CASE FOR THE SAFETY AND WELFARE OF ITS INHABITANTS; THE FEDERAL
GOVERNMENT MAY PUNISH FOR THE SAFETY AND WELFARE OF INTERSTATE
COMMERCE.  P. 738. 

CALIFORNIA V. ZOOK ET AL. 

CERTIORARI TO THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF LOS
ANGELES COUNTY, CALIFORNIA. 

RESPONDENTS WERE CONVICTED OF VIOLATING A CALIFORNIA PENAL STATUTE. 
THE CONVICTION WAS REVERSED, AND THE COMPLAINT WAS ORDERED DISMISSED,
BY THE HIGHEST COURT OF THE STATE IN WHICH A DECISION COULD BE HAD.  87
CAL. APP.2D SUPP. 921, 197 P.2D 851.  THIS COURT GRANTED CERTIORARI. 
335 U.S. 883.  REVERSED, P. 738. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

A CALIFORNIA STATUTE PROHIBITS THE SALE OR ARRANGEMENT OF ANY
TRANSPORTATION OVER THE PUBLIC HIGHWAYS OF THE STATE IF THE
TRANSPORTING CARRIER HAS NO PERMIT FROM THE INTERSTATE COMMERCE
COMMISSION.  FN1  THE FEDERAL MOTOR CARRIER ACT HAS SUBSTANTIALLY THE
SAME PROVISION.  FN2  THE QUESTION IS WHETHER THE STATE ACT AS APPLIED
IN THIS CASE IS INVALID IN VIEW OF THE FEDERAL ACT. 

RESPONDENTS OPERATE A TRAVEL BUREAU IN LOS ANGELES, AND RECEIVE
COMMISSIONS FOR ARRANGING "SHARE-EXPENSE" PASSENGER TRANSPORTATION IN
AUTOMOBILES.  OWNERS OF PRIVATE CARS DESIRING PASSENGERS FOR A TRIP
REGISTER WITH RESPONDENTS' AGENCY, AS DO PROSPECTIVE PASSENGERS.  STATE
LINES ARE CROSSED IN MANY OF THE TRIPS.  UNTIL 1942 THE FEDERAL ACT
SPECIFICALLY EXEMPTED SUCH "CASUAL, OCCASIONAL, OR RECIPROCAL"
TRANSPORTATION.  FN3  BUT IN THAT YEAR THE INTERSTATE COMMERCE
COMMISSION REMOVED THE EXEMPTION N4, AS THE MOTOR CARRIER ACT EMPOWERED
IT TO DO.  FN5  BOTH THE CALIFORNIA AND FEDERAL STATUTES NOW REQUIRE
RESPONDENTS TO SELL TRANSPORTATION ONLY IN CARRIERS HAVING PERMITS FROM
THE I.C.C. 

RESPONDENTS WERE PROSECUTED UNDER THE STATE ACT.  THEY ADMITTED THEIR
UNLAWFUL ACTIVITY, BUT DEMURRED TO THE CRIMINAL COMPLAINT ON THE SOLE
GROUND THAT THE STATE STATUTE ENTERED AN EXCLUSIVE CONGRESSIONAL
DOMAIN.  THE TRIAL COURT DISAGREED, AND ENTERED A JUDGMENT OF
CONVICTION, BUT THE APPELLATE COURT  FN6  UPHELD RESPONDENTS'
CONTENTION, AND ORDERED THE COMPLAINT DISMISSED.  87 CAL. APP.2D SUPP.
921, 197 P.2D 851.  THE CASE IS HERE ON CERTIORARI, 335 U.S. 883. 

CERTAIN FIRST PRINCIPLES ARE NO LONGER IN DOUBT.  WHETHER AS
INFERENCE FROM CONGRESSIONAL SILENCE, OR AS A NEGATIVE IMPLICATION FROM
THE GRANT OF POWER ITSELF, WHEN CONGRESS HAS NOT SPECIFICALLY ACTED WE
HAVE ACCEPTED THE COOLEY CASE'S BROAD DELINEATION OF THE AREAS OF STATE
AND NATIONAL POWER OVER INTERSTATE COMMERCE.  COOLEY V. PORT WARDENS,
12 HOW.  299; SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761, 768.  SEE
RIBBLE, STATE AND NATIONAL POWER OVER COMMERCE, CH. 10.  ABSENT
CONGRESSIONAL ACTION, THE FAMILIAR TEST IS THAT OF UNIFORMITY VERSUS
LOCALITY:  IF A CASE FALLS WITHIN AN AREA IN COMMERCE THOUGHT TO DEMAND
A UNIFORM NATIONAL RULE, STATE ACTION IS STRUCK DOWN.  IF THE ACTIVITY
IS ONE OF PREDOMINANTLY LOCAL INTEREST, STATE ACTION IS SUSTAINED. 
MORE ACCURATELY, THE QUESTION IS WHETHER THE STATE INTEREST IS
OUTWEIGHED BY A NATIONAL INTEREST IN THE UNHAMPERED OPERATION OF
INTERSTATE COMMERCE. 

THERE IS NO LONGER ANY QUESTION THAT CONGRESS CAN REDEFINE THE AREAS
OF LOCAL AND NATIONAL PREDOMINANCE, PRUDENTIAL INSURANCE CO. V.
BENJAMIN, 328 U.S. 408; SOUTHERN PACIFIC CO. V. ARIZONA, SUPRA, AT 769,
DESPITE THEORETICAL INCONSISTENCY WITH THE RATIONALE OF THE COMMERCE
CLAUSE AS A LIMITATION IN ITS OWN RIGHT.  THE WORDS OF THE CLAUSE - A
GRANT OF POWER - ADMIT OF NO OTHER RESULT.  WHEN CONGRESS ENTERS THE
FIELD BY LEGISLATION, WE TRY TO DISCOVER TO WHAT EXTENT IT INTENDED TO
EXERCISE ITS POWER OF REDEFINITION; HERE WE ARE CLOSER TO AN INTENT
THAT CAN BE DEMONSTRATED WITH ASSURANCE, ALTHOUGH WE MAY EMPLOY
PRESUMPTIONS GROUNDED IN EXPERIENCE IN DOUBTFUL CASES. 

BUT WHETHER CONGRESS HAS OR HAS NOT EXPRESSED ITSELF, THE FUNDAMENTAL
INQUIRY, BROADLY STATED, IS THE SAME:  DOES THE STATE ACTION CONFLICT
WITH NATIONAL POLICY?  THE COOLEY RULE AND ITS LATER APPLICATION,
SOUTHERN PACIFIC CO. V. ARIZONA, SUPRA, THE QUESTION OF CONGRESSIONAL
"OCCUPATION OF THE FIELD," AND THE SEARCH FOR CONFLICT IN THE VERY
TERMS OF STATE AND FEDERAL STATUTES ARE BUT THREE SEPARATE
PARTICULARIZATIONS OF THIS INITIAL PRINCIPLE. 

WE RESTATE THE FAMILIAR BECAUSE RESPONDENTS WOULD HAVE US PRONOUNCE
AN ADDITIONAL RULE:  THAT WHEN CONGRESS HAS MADE SPECIFIED ACTIVITY
UNLAWFUL, "COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION," AND STATE LAWS
"AIDING" ENFORCEMENT ARE INVALID.  RESPONDENTS SEEM TO ARGUE THAT THIS
IS AS FUNDAMENTAL AS THE RULE OF CONFLICT WITH NATIONAL AUTHORITY, AND
THAT IT RESTS UPON WHOLLY INDEPENDENT PREMISES. 

BUT RESPONDENTS SEIZE UPON ONLY ONE PART OF THE FAMILIAR PHRASE IN
CHARLESTON & W.C.R. CO. V. VARNVILLE FURNITURE CO., 237 U.S. 597, 604. 
WE SAID THAT WHEN "CONGRESS HAS TAKEN THE PARTICULAR SUBJECT-MATTER IN
HAND COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION  ...  "  SEE ALSO,
PENNSYLVANIA R. CO. V. PUBLIC SERVICE COMM'N, 250 U.S. 566, 569;
MISSOURI P.R. CO. V. PORTER, 273 U.S. 341, 346.  RESPONDENTS' ARGUMENT
ASSUMES THE STATED PREMISE - THAT CONGRESS HAS "TAKEN THE PARTICULAR
SUBJECT-MATTER IN HAND," TO THE EXCLUSION OF STATE LAWS.  THE COURT
COULD NOT HAVE INTENDED TO ENUNCIATE A MECHANICAL RULE, TO BE APPLIED
WHATEVER THE OTHER CIRCUMSTANCES INDICATING CONGRESSIONAL INTENT. 
NEITHER THE LANGUAGE NOR THE FACTS OF THE CASES CITED SUPPORT AN
APPROACH IN SUCH MARKED CONTRAST WITH THIS COURT'S CONSISTENT
DECISIONAL BASES.  THE VARNVILLE CASE STRUCK DOWN A SOUTH CAROLINA
STATUTE WHICH HAD THE EFFECT OF HOLDING A CONNECTING CARRIER LIABLE FOR
GOODS DAMAGED IN INTERSTATE COMMERCE, WHEN CONGRESS HAD DETERMINED THAT
THE INITIAL CARRIER SHOULD BEAR PRIMARY RESPONSIBILITY; THE
PENNSYLVANIA RAILROAD CASE HELD INVALID A STATE MEASURE REQUIRING A
SPECIFIED TYPE OF REAR PLATFORM DIFFERENT FROM THE DETAILED
SPECIFICATIONS OF THE INTERSTATE COMMERCE COMMISSION; AND IN THE PORTER
CASE, THE COURT THOUGHT CONGRESS INTENDED TO LEAVE THE TERMS OF A
UNIFORM BILL OF LADING TO THE I.C.C., AND THAT STATE LAWS ON THE
SUBJECT WERE MEANT TO BE INEFFECTIVE.  SEE CLOVERLEAF BUTTER CO. V.
PATTERSON, 315 U.S. 148, 157-159. 

THE "COINCIDENCE" RATIONALE IS ONLY AN APPLICATION OF THE FIRST
PRINCIPLE OF CONFLICT WITH NATIONAL POLICY.  THE PHRASE ITSELF SIMPLY
STATES THAT FAMILIAR RULE.  IF STATE LAWS ON COMMERCE ARE IDENTICAL
WITH THOSE OF CONGRESS, THE COURT MAY FIND CONGRESSIONAL MOTIVE TO
EXCLUDE THE STATES:  CONGRESS HAS PROVIDED CERTAIN LIMITED PENALTIES,
"AND A STATE LAW IS NOT TO BE DECLARED A HELP BECAUSE IT ATTEMPTS TO GO
FARTHER THAN CONGRESS HAS SEEN FIT TO GO," VARNVILLE, SUPRA, AT 604 -
THAT IS, IF CONGRESS HAS "OCCUPIED THE FIELD."  BUT THE FACT OF
IDENTITY DOES NOT MEAN THE AUTOMATIC INVALIDITY OF STATE MEASURES. 
COINCIDENCE IS ONLY ONE FACTOR IN A COMPLICATED PATTERN OF FACTS
GUIDING US TO CONGRESSIONAL INTENT.  FN7  AS THE COURT STATED IN THE
PENNSYLVANIA RAILROAD CASE, AT 569, THE "QUESTION WHETHER CONGRESS AND
ITS COMMISSIONS ACTING UNDER IT HAVE SO FAR EXERCISED THE EXCLUSIVE
JURISDICTION THAT BELONGS TO IT AS TO EXCLUDE THE STATE, MUST BE
ANSWERED BY A JUDGMENT UPON THE PARTICULAR CASE."  STATEMENTS
CONCERNING THE "EXCLUSIVE JURISDICTION" OF CONGRESS BEG THE ONLY
CONTROVERSIAL QUESTION:  WHETHER CONGRESS INTENDED TO MAKE ITS
JURISDICTION EXCLUSIVE. 

THIS HAS LONG BEEN SETTLED.  FOX V. OHIO, 5 HOW.  410, ANNOUNCED
UNCERTAINLY WHAT UNITED STATES V. MARIGOLD, 9 HOW.  560, LATER MADE
CLEAR:  THAT "THE SAME ACT MIGHT, AS TO ITS CHARACTER AND TENDENCIES,
AND THE CONSEQUENCES IT INVOLVED, CONSTITUTE AN OFFENCE AGAINST BOTH
THE STATE AND FEDERAL GOVERNMENTS, AND MIGHT DRAW TO ITS COMMISSION THE
PENALTIES DENOUNCED BY EITHER, AS APPROPRIATE TO ITS CHARACTER IN
REFERENCE TO EACH."  9 HOW.  AT 569.  FN8  SEE EX PARTE SIEBOLD, 100
U.S. 371, 390; UNITED STATES V. LANZA, 260 U.S. 377, 384.  AND SEE
UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, 208. 

ASBELL V. KANSAS, 209 U.S. 251, IS A FURTHER ILLUSTRATION.  A KANSAS
STATUTE PROVIDED CRIMINAL PENALTIES FOR THE IMPORTATION OF CATTLE FROM
ANY POINT SOUTH OF THE STATE, EXCEPT FOR IMMEDIATE SLAUGHTER, WITHOUT
APPROVAL OF THE PROPER STATE OFFICIALS OR THE BUREAU OF ANIMAL INDUSTRY
OF THE UNITED STATES.  THE CONGRESSIONAL ACT, 32 STAT. 791, 792,
ALLOWED CATTLE TO BE TRANSPORTED INTO A STATE IF INSPECTED AND PASSED
BY AN INSPECTOR OF THE UNITED STATES BUREAU OF ANIMAL INDUSTRY. 
VIOLATION OF THE FEDERAL ACT BROUGHT CRIMINAL SANCTIONS.  YET WE
AFFIRMED A CONVICTION UNDER THE STATE LAW.  WE SAID THAT "IF THE STATE
LAW CONFLICTS WITH IT (FEDERAL LAW) THE STATE LAW MUST YIELD.  BUT THE
LAW OF KANSAS NOW BEFORE US RECOGNIZES THE SUPREMACY OF THE NATIONAL
LAW AND CONFORMS TO IT."  209 U.S. AT 258.  AND SEE THE SIMILAR PROBLEM
AND SIMILAR ANSWER BY BRANDEIS, J., FOR THE COURT IN DICKSON V. UHLMANN
GRAIN CO., 288 U.S. 188. 

TO LIMIT OUR INQUIRY TO RESPONDENTS' SINGLE STANDARD WOULD RESTRICT
US TO UNREALITY.  FOR CONGRESS IS OFTEN EXPLICIT WHEN IT WISHES STATE
LAWS TO CONCLUDE FEDERAL PROSECUTION, TO AVOID THE DOUBLE PUNISHMENT
POSSIBLE IN A FEDERAL SYSTEM.  SEE, FOR EXAMPLE, 18 U.S.C. SEC. 659,
DEFINING THE CRIME OF STEALING FROM AN INTERSTATE CARRIER; 18 U.S.C.
SEC. 660, MISAPPLICATION OF FUNDS BY AN OFFICER OR EMPLOYEE OF A
CARRIER ENGAGED IN COMMERCE.  AND WHEN STATE ENFORCEMENT MECHANISMS SO
HELPFUL TO FEDERAL OFFICIALS ARE TO BE EXCLUDED, CONGRESS MAY SAY SO,
AS IN THE LABOR MANAGEMENT RELATIONS ACT, 1947, 29 U.S.C. (SUPP. I),
SEC. 160(A).  THAT CONGRESS HAS SPECIFICALLY SAVED STATE LAWS IN SOME
INSTANCES, SEE, E.G., THE SECURITIES ACT OF 1933, 15 U.S.C. SEC. 77R,
INDICATES NO GENERAL POLICY SAVE CLARITY. 

RESPONDENTS' AUTOMATIC "COINCIDENCE MEANS INVALIDITY" THEORY, APPLIED
IN AN AREA AS IMBUED WITH THE STATE'S INTEREST AS IS THIS ONE, SEE
INFRA, WOULD LEAD US TO THE CONCLUSION THAT A STATE MAY NOT MAKE A
DEALER IN PERISHABLE AGRICULTURAL COMMODITIES RESPECT ITS LAWS ON THE
FRAUDULENT NONPAYMENT OF AN OBLIGATION, IF THAT FRAUD OCCURRED AFTER AN
INTERSTATE SHIPMENT, 7 U.S.C. SEC. 499B (4), FOR CONGRESS HAS NOT
EXPRESSLY SAVED SUCH PROSECUTIONS.  WE WOULD HOLD, TOO, THAT EXTORTION
OR ROBBERY FROM INTERSTATE COMMERCE UNDER 18 U.S.C. SEC. 1951 OR 18
U.S.C. SEC. 2117 IS IMMUNE FROM STATE ACTION; THAT THE WRECKING OF A
BRIDGE OVER AN INTERSTATE RAILROAD IS AN "EXCLUSIVELY FEDERAL" OFFENSE,
18 U.S.C. SEC. 1992; THAT THE TRANSMITTAL OF A RANSOM NOTE IN
INTERSTATE COMMERCE CANNOT BE PUNISHED BY LOCAL AUTHORITIES, 18 U.S.C.
SEC. 875.  AND SEE 18 U.S.C. SECS. 331, 472, 479.  IN SHORT, WE WOULD
BE SETTING ASIDE GREAT NUMBERS OF STATE STATUTES TO SATISFY A
CONGRESSIONAL PURPOSE WHICH WOULD BE ONLY THE PRODUCT OF THIS COURT'S
IMAGINATION.  WE CANNOT AGREE THAT EACH OF THE PROBLEMS UNDER THE
STATUTES CITED MAY NOT BE RESOLVED BY EXAMINATION OF THE WHOLE CASE. 

THE QUESTION IS WHETHER CONGRESS INTENDED TO OVERRIDE STATE LAWS
IDENTICAL WITH ITS OWN WHEN IT, THROUGH THE INTERSTATE COMMERCE
COMMISSION, REGULATED SHARE-EXPENSE PASSENGER AUTOMOBILE
TRANSPORTATION, OR WHETHER IT INTENDED TO LET STATE LAWS STAND.  WHILE
THE STATUTE SAYS NOTHING EXPRESSLY ON THIS POINT AND WE ARE AIDED BY NO
LEGISLATIVE HISTORY DIRECTLY IN POINT,  FN9  WE KNOW THAT NORMALLY
CONGRESSIONAL PURPOSE TO DISPLACE LOCAL LAWS MUST BE CLEARLY
MANIFESTED.  H.P. WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79, AND CASES
CITED; MAURER V. HAMILTON, 309 U.S. 598, 614; KELLY V. WASHINGTON, 302
U.S. 1, 11, 14; MINTZ V. BALDWIN, 289 U.S. 346.  OR IF THE CLAIM IS
CONFLICT IN TERMS, IT "MUST BE CLEAR THAT THE FEDERAL PROVISIONS ARE
INCONSISTENT WITH THOSE OF THE STATE TO JUSTIFY THE THWARTING OF STATE
REGULATION."  CLOVERLEAF BUTTER CO. V. PATTERSON, SUPRA, AT 156.  SEE
ALSO HINES V. DAVIDOWITZ, 312 U.S. 52, AT 67. 

GENERAL PROPOSITIONS DERIVED FROM THE WHOLE SWEEP OF THE COMMERCE
CLAUSE ARE OFTEN HELPFUL, AND WE THINK THOSE JUST STATED ARE PERSUASIVE
INDICATIONS OF CONGRESSIONAL INTENT IN THE CASE NOW BEFORE US.  BUT THE
QUITE SEPARATE COMMERCE CLAUSE DEGREE QUESTIONS CAN BE RESOLVED ONLY BY
CAREFUL SCRUTINY OF THE PARTICULAR ACTIVITY REGULATED.  THE INTERSTATE
COMMERCE COMMISSION FOUND THESE DANGERS PRESENT IN THE BUSINESS OF
SHARE-EXPENSE PASSENGER TRANSPORTATION:  ABANDONMENT OF PASSENGERS
BEFORE REACHING THE PROMISED DESTINATION; PERSONAL INJURIES SUSTAINED
BY PASSENGERS BECAUSE OF IRRESPONSIBLE DRIVERS, WITH ATTENDANT DELAY
AND EXPENSE; DELAYS CAUSED BY ARREST AND DETENTION OF DRIVERS FOR
VIOLATIONS OF TRAFFIC LAWS; CROWDED CONDITIONS IN AUTOMOBILES BY REASON
OF AN EXCESSIVE NUMBER OF PASSENGERS AND THEIR BAGGAGE; AND "ANNOYANCE,
ANXIETY, OR FRIGHT CAUSED BY RECKLESS AND IMPROPER DRIVING BY THE
AUTOMOBILE OPERATORS, BY THE BAD MECHANICAL CONDITION OF THE VEHICLES
USED, BY THE FATIGUE OF DRIVERS OPERATING THE AUTOMOBILES FOR LONG
PERIODS WITHOUT ADEQUATE REST, OR BY THE IMPROPER CONDUCT OF THE
DRIVERS OR OTHER PASSENGERS."  EVIDENCE OF THESE EVILS LED THE I.C.C.
TO REMOVE THE EXEMPTION WHICH HAD COVERED THESE RESPONDENTS.  EX PARTE
NO. MC-35, 33 M.C.C. 69, 73, 74.  SEE ALSO REPORT OF FEDERAL
COORDINATOR OF TRANSPORTATION ON THE REGULATION OF TRANSPORTATION
AGENCIES OTHER THAN RAILROADS AND ON PROPOSED CHANGES IN RAILROAD
REGULATION (WASHINGTON, 1934), SEN. DOC. 152, 73D CONG., 2D SESS., P.
226, MENTIONING THE FINANCIAL IRRESPONSIBILITY OF THESE CARRIERS.  AND
SEE CALIFORNIA V. THOMPSON, 313 U.S. 109.    OF COURSE WE NO LONGER
LIMIT THE STATES TO THEIR "TRADITIONAL" POLICE POWERS IN CONSIDERING A
STATUTE'S VALIDITY UNDER THE FOURTEENTH AMENDMENT.  SEE LINCOLN FEDERAL
LABOR UNION V. NORTHWESTERN IRON & METAL CO., 335 U.S. 525.  BUT THE
TRADITION OF "USUAL POLICE POWERS" IS STILL OF AID IN DETERMINING
CONGRESSIONAL INTENT TO EXCLUDE STATE ACTION ON INTERSTATE COMMERCE, AT
LEAST WHEN CONGRESS HAS LEGISLATED.  MANY OF THE EVILS DISCUSSED BY THE
I.C.C., ABOVE, ARE OF THE OLDEST WITHIN THE AMBIT OF THE POLICE POWER:
PROTECTION AGAINST FRAUD AND PHYSICAL HARM TO A STATE'S RESIDENTS.  AND
CONSISTENT WITH THE MANY CASES GIVING THE STATE'S INTEREST IN ITS OWN
HIGHWAYS MORE WEIGHT THAN THE NATIONAL INTEREST AGAINST "BURDENING"
COMMERCE,  FN10  WE HAVE HELD THAT THE HIGHWAY REGULATION INVOLVED IN
THIS CASE IS ALLOWABLE STATE ACTION BEFORE CONGRESS ACTED.  CALIFORNIA
V. THOMPSON, SUPRA.  REMOVAL OF THE MOTOR CARRIER ACT'S EXEMPTION SINCE
THE THOMPSON CASE DOES NOT CHANGE OUR CONCLUSION. 

THE CASE WOULD BE DIFFERENT IF THERE WERE CONFLICT IN THE PROVISIONS
OF THE FEDERAL AND CALIFORNIA STATUTES.  BUT THERE IS NO CONFLICT IN
TERMS, AND NO POSSIBILITY OF SUCH CONFLICT, FOR THE STATE STATUTE MAKES
FEDERAL LAW ITS OWN IN THIS PARTICULAR.  THE CASE MIGHT ALSO BE
DIFFERENT WERE THERE VARIEGATED STATE LAWS ON THIS SUBJECT IN 1941,
WHEN THE I.C.C. REMOVED THE FEDERAL EXEMPTION.  WE MIGHT THEN INFER
CONGRESSIONAL PURPOSE TO DISPLACE LOCAL LAWS AND ESTABLISH A UNIFORM
RULE BEYOND WHICH STATES MAY NOT GO.  SEE SOUTHERN R. CO. V. RAILROAD
COMMISSION, 236 U.S. 439.  WHATEVER THE RESULT IN THAT CLASS OF CASES,
IT WOULD BE STARTLING TO DISCOVER CONGRESSIONAL INTENTION TO "DISPLACE"
STATE LAWS WHEN THERE WERE NO STATE LAWS TO DISPLACE WHEN CONGRESS
ACTED.  AND THAT IS NEARLY THE SITUATION IN THE PRESENT CASE.  WHEN THE
I.C.C. REMOVED THE FEDERAL EXEMPTION, IT MENTIONED TWELVE CITIES, OTHER
THAN LOS ANGELES AND SAN FRANCISCO, IN WHICH THE PROBLEM WAS
PARTICULARLY ACUTE.  FN11  OF THESE TWELVE CITIES, ONLY TWO WERE
LOCATED IN STATES WHICH ATTEMPTED REGULATION OF THE KIND OF
TRANSPORTATION WE ARE NOW CONSIDERING N12.  SUCH STRIKING ABSENCE OF
STATE LAW IN STATES WHERE THE PROBLEM WAS RECOGNIZED AS SERIOUS BY THE
I.C.C. CLEARLY DEMONSTRATES A PURPOSE TO PROVIDE RATHER THAN DISPLACE
LOCAL RULES - TO FILL A VOID RATHER THAN NATIONALIZE A SINGLE RULE. 
AND WE SEE NOTHING TO SHOW THAT A MORE SERIOUS PROBLEM IN THE STATE OF
CALIFORNIA MIGHT NOT PROPERLY BEGET A MORE SERIOUS PENALTY, IF THE
CALIFORNIA LEGISLATURE DEEMED IT WISE.  I.C.C. RECOGNITION THAT THE
PROBLEM IS MORE ACUTE IN SOME STATES THAN IN OTHERS MAY WELL INDICATE
ACCEPTANCE OF THAT PROPOSITION. 

IT IS SAID THAT I.C.C. RECOGNITION OF THE DIFFICULTIES FACING STATE
REGULATION OF INTERSTATE COMMERCE, 33 M.C.C. AT 76, BECAUSE OF CASES
SUCH AS BUCK V. KUYKENDALL, SUPRA, IS OF IMPORTANCE HERE.  BUT THIS
CASE CONCERNS ONLY THE STATE'S MECHANISMS FOR ENFORCING A STATUTE
IDENTICAL WITH THAT OF THE FEDERAL GOVERNMENT, THOUGH ROOTED IN
DIFFERENT POLICY CONSIDERATIONS.  WE CANNOT PREDICATE EXCLUSION UPON
THE SIMPLE RECOGNITION OF CONSTITUTIONAL DIFFICULTIES NOT PRESENT IN
THE CAUSE BEFORE US.  SINCE THE I.C.C. ORDER WAS ISSUED AFTER
CALIFORNIA V. THOMPSON, ONE WOULD EXPECT THE FEDERAL AGENCY TO BE
SPECIFIC IF IT INTENDED TO SUPERSEDE STATE LAWS.  AND WE DO NOT SEE HOW
A PREVIOUS CALIFORNIA STATUTE CONFLICTING WITH I.C.C. POLICY, CF. 1933
CAL. STAT., C. 390, SEC. 1, P. 1012, AND FRANK BROKER APPLICATION, 8
M.C.C. 15, CAN HAVE ANYTHING TO DO WITH THE ONLY CALIFORNIA STATUTE WE
ARE CONSIDERING - A MEASURE WHICH DOES NOT CONFLICT WITH I.C.C.
POLICY.  IT IS DIFFICULT TO BELIEVE THAT THE I.C.C. INTENDED TO DEPRIVE
ITSELF OF EFFECTIVE AID FROM LOCAL OFFICERS EXPERIENCED IN THE KIND OF
ENFORCEMENT NECESSARY TO COMBAT THIS EVIL - AID OF PARTICULAR
IMPORTANCE IN VIEW OF THE I.C.C.'S SMALL STAFF.  SEE 61ST ANNUAL REPORT
OF THE I.C.C. (1947), P. 122; 62D ANNUAL REPORT OF THE I.C.C. (1948),
P. 109.  FN13 

THIS IS NOT A HYPOTHETICAL CASE ON "NORMAL CONGRESSIONAL INTENT."  IT
IS CALIFORNIA'S ATTEMPT TO DEAL WITH A REAL DANGER TO ITS RESIDENTS. 
WE KNOW THAT COINCIDENCE, WITH ITS CONSEQUENT POSSIBILITY OF DOUBLE
PUNISHMENT, IS AN IMPORTANT FACTOR TO BE CONSIDERED.  IN MANY CASES IT
MAY BE A PERSUASIVE INDICATION OF CONGRESSIONAL INTENT.  BUT WE MUST
LOOK AT THE WHOLE CASE.  IN THIS CASE THE FACTORS INDICATING EXCLUSION
OF STATE LAWS ARE OF NO CONSEQUENCE IN THE LIGHT OF THE SMALL NUMBER OF
LOCAL REGULATIONS AND THE STATE'S NORMAL POWER TO ENFORCE SAFETY AND
GOOD-FAITH REQUIREMENTS FOR THE USE OF ITS OWN HIGHWAYS.  "THE STATE
AND FEDERAL REGULATIONS HERE APPLICABLE HAVE THEIR SEPARATE SPHERES OF
OPERATION."  UNION BROKERAGE CO. V. JENSEN, SUPRA, 322 U.S. AT 208. 
FN14  SO FAR AS CASUAL, OCCASIONAL, OR RECIPROCAL TRANSPORTATION OF
PASSENGERS FOR HIRE IS CONCERNED, THE STATE MAY PUNISH AS IT HAS IN THE
PRESENT CASE FOR THE SAFETY AND WELFARE OF ITS INHABITANTS; THE NATION
MAY PUNISH FOR THE SAFETY AND WELFARE OF INTERSTATE COMMERCE.  THERE IS
NO CONFLICT.  REVERSED. 

FN1  CALIF. STATS. 1947, C. 1215, SECS. 2, 4, PP. 2724, 2725,
DEERING'S CALIF. PENAL CODE (1947 SUPP.), SECS. 654.1, 654.3.  THE
STATUTE MAKES IT CRIMINAL TO SELL TRANSPORTATION IN A CARRIER WHICH HAS
FAILED TO SECURE A PERMIT FROM EITHER THE CALIFORNIA PUBLIC UTILITIES
COMMISSION OR THE INTERSTATE COMMERCE COMMISSION OF THE UNITED STATES. 
OUR ONLY CONCERN IS WITH THE CORRESPONDENCE OF STATE AND FEDERAL
LEGISLATION. 

FN2  49 U.S.C. SECS. 301, 303(B)(SEE NOTE 5, INFRA), 49 STAT. 543 ET
SEQ., 54 STAT. 919, 921.  THE ACT IS LIMITED TO CARRIERS OPERATING IN
INTERSTATE COMMERCE.  49 U.S.C. SEC. 302(B). 

FN3  49 U.S.C. SEC. 303(B)(9). 

FN4  WHEN THE TRANSPORTATION IS ARRANGED "BY A THIRD-PARTY
INTERMEDIARY WHO ENGAGES IN MAKING SUCH TRANSACTIONS FOR COMPENSATION
OR AS A REGULAR OCCUPATION OR BUSINESS."  EX PARTE NO. MC-35, 33 M.C.C.
69, 81. 

FN5  THE I.C.C. ORDER WAS UPHELD BY THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS IN DRAKE V. UNITED STATES, NOVEMBER 18,
1942(SEE LEVIN V. UNITED STATES, 3 FEDERAL CARRIERS CASES (CCH) 2297). 
WE AFFIRMED.  LEVIN V. UNITED STATES, 319 U.S. 728. 

FN6  THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF LOS ANGELES
COUNTY, STATE OF CALIFORNIA.  THERE IS NO FURTHER REVIEW IN THE STATE
COURTS.  ART. VI, SECS. 4, 4B, CALIF. CONST.; PEOPLE V. REED, 13 CAL.
APP.2D 39, 56 P.2D 240. 

FN7  COMPARE MISSOURI, K. & T.R. CO. V. HARRIS, 234 U.S. 412, WITH
NORTHERN P.R. CO. V. WASHINGTON, 222 U.S. 370; PEOPLE V. COMPAGNIE
GENERALE TRANSATLANTIQUE, 107 U.S. 59, 63; OREGON-WASHINGTON R. & NAV.
CO. V. WASHINGTON, 270 U.S. 87; AND CLOVERLEAF BUTTER CO. V. PATTERSON,
315 U.S. 148.  IN THESE CASES WE MADE OUR DECISION CONCERNING
CONGRESSIONAL INTENT BY CONSIDERING ALL THE FACTORS WE CONSIDERED
RELEVANT.  WE DID NOT RESORT TO A MECHANICAL RULE. 

THE TEXT ALSO SEEMS TO SUPPLY THE UNDERLYING RATIONALE FOR THE TWO
CASES CITED IN VARNVILLE, AT 604, TO SUPPORT THE FAMILIAR QUOTATION ON
"COINCIDENCE."  SOUTHERN R. CO. V. RAILROAD COMM'N, 236 U.S. 439, AND
CHICAGO, R.I. & P.R. CO. V. HARDWICK FARMERS ELEVATOR CO., 226 U.S.
426.  AND SEE JEROME V. UNITED STATES, 318 U.S. 101, 105. 

FN8  THE FOX AND MARIGOLD CASES WERE CONCERNED WITH CONGRESSIONAL
POWER OVER FORGERIES, BUT FOR THE PURPOSES OF THIS CASE THE PRINCIPLE
IS THE SAME. 

FN9  AS MIGHT BE EXPECTED:  THERE WAS AN EXEMPTION OF CASUAL
OPERATIONS WHEN THE STATUTE WAS PASSED.  SEE NOTE 5, SUPRA, AND TEXT. 
DISCUSSION IN DEBATE AND HEARINGS IS LARGELY DESCRIPTIVE.  SEE, E.G.,
HEARINGS BEFORE SUBCOMMITTEE OF HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE ON H.R. 5262 AND H.R. 6016, 74TH CONG., 1ST SESS., PP.
47, 97, 183, 188-191, 208, 262; HEARINGS BEFORE SENATE COMMITTEE ON
INTERSTATE COMMERCE ON S. 1629, S. 1632, AND S. 1635, 74TH CONG., 1ST
SESS., PP. 69, 70, 87, 97, 119, 186-188, 215, 390.  THE COMMITTEE
REPORTS ARE NOT HELPFUL. 

THERE IS, HOWEVER, AN EXPRESSION OF DEFERENCE TO STATE ACTION ON
INTRASTATE COMMERCE, 49 U.S.C. SEC. 302(B), AS STRENGTHENED ON THE
FLOOR OF THE SENATE, 79 CONG. REC. 5735-5737.  SEE 79 CONG. REC. 12197;
49 U.S.C. SEC. 305(A). 

FN10  E.G., SOUTH CAROLINA STATE HIGHWAY DEPT. V. BARNWELL BROS., 303
U.S. 177; CLARK V. POOR, 274 U.S. 554, 557; MAURER V. HAMILTON, 309
U.S. 598, 614; HENDRICK V. MARYLAND, 235 U.S. 610; H.P. WELCH CO. V.
NEW HAMPSHIRE, 306 U.S. 79; KELLY V. WASHINGTON, 302 U.S. 1, 10.  SEE
THE DISTINCTION OF BUCK V. KUYKENDALL, 267 U.S. 307, AND BUSH & SONS V.
MALOY, 267 U.S. 317, IN BRADLEY V. PUBLIC UTILITIES COMMISSION, 289
U.S. 92 AT 95.  SEE KAUPER, STATE REGULATION OF INTERSTATE MOTOR
CARRIERS, 31 MICH. L. REV. 920, 1097. 

FN11  "THE TRAVEL-BUREAU BUSINESS IS QUITE EXTENSIVE IN MANY CITIES,
PARTICULARLY THOSE IN THE WESTERN AND SOUTHWESTERN STATES, NOTABLY AT
KANSAS CITY, MO., WICHITA, KANS., OKLAHOMA CITY AND TULSA, OKLA.,
DALLAS, FORTH WORTH, SAN ANTONIO, HOUSTON, AND EL PASO, TEX., LOS
ANGELES AND SAN FRANCISCO, CALIF., PORTLAND, OREG., SEATTLE, WASH., AND
DENVER, COLO.  THE RECORD ESTABLISHES THAT SUCH OPERATIONS EXIST AT
OTHER CITIES, INCLUDING CHICAGO, ILL., AND NEW YORK, N.Y.  AT ONE TIME,
THERE WERE APPROXIMATELY 50 BUREAUS IN OPERATION IN LOS ANGELES ALONE. 
...  "  33 M.C.C. AT 71-72. 

FN12  LETTERS FROM MOTOR CARRIER COMMISSIONS IN WESTERN AND
SOUTHWESTERN STATES SHOW THAT IN 1941 THERE WAS NO REGULATION, OR
ATTEMPT AT REGULATION, COVERING KANSAS CITY, OKLAHOMA CITY, TULSA,
DALLAS, FORT WORTH, SAN ANTONIO, HOUSTON, EL PASO, PORTLAND, OR
SEATTLE.  ONLY IN WICHITA AND DENVER WAS REGULATION ATTEMPTED, AND ITS
EXTENT IN WICHITA IS NOT AT ALL CLEAR. 

IN 1941 THERE WAS LIKEWISE NO REGULATION OR ATTEMPT AT REGULATION OF
ANY KIND IN ARIZONA, MONTANA, NEW MEXICO, OR UTAH, ALTHOUGH WYOMING
ATTEMPTED SOME MEASURE OF CONTROL.  IDAHO'S ONLY REQUIREMENT WAS A
REGISTRATION FEE. 

FN13  RESPONDENTS IGNORE PRACTICAL DIFFERENCES WHEN THEY RELY UPON
THE SOUTHERN R. CO. CASE, SUPRA, WHICH INVALIDATED STATE REGULATION OF
GRAB-IRONS ON RAILROAD CARS MOVING IN INTERSTATE COMMERCE.  THE
INDIVIDUAL STATE'S INTEREST IN THE MANNER ITS RESIDENTS USE ITS OWN
HIGHWAYS CAN HARDLY BE COMPARED WITH THE TIME-HONORED I.C.C. CONTROL
OVER THE NATION'S TRADITIONAL AVENUES OF INTERSTATE TRANSPORTATION, THE
RAILROADS.  A CASE CLOSER TO THE ONE BEFORE US IS ASBELL V. KANSAS,
SUPRA.  TO RECOGNIZE THAT THE QUESTION IS ONE OF DEGREE DOES NOT
RESOLVE THE SHARP DIFFERENCES IN EXTREME REVEALED BY THE SOUTHERN R.
CO. CASE AND THE ONE NOW BEFORE US. 

FN14  "THE FEDERAL GOVERNMENT HAS DEALT WITH THE MANNER IN WHICH THE
CUSTOMHOUSE BROKERAGE IS CARRIED ON.  MINNESOTA, HOWEVER, IS
LEGITIMATELY CONCERNED WITH SAFEGUARDING THE INTERESTS OF ITS OWN
PEOPLE  ...  "  ID. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

MY BROTHER BURTON HAS SET FORTH IN CONVINCING DETAIL HOW THE
REGULATION OF "TRAVEL BUREAUS" FOR ARRANGING TRANSPORTATION OF
PASSENGERS BY MOTOR CARRIERS ENGAGED IN INTERSTATE COMMERCE WAS TAKEN
OVER BY FEDERAL AUTHORITY, AFTER EXPERIENCE HAD DISCLOSED THE
INADEQUACY OF STATE REGULATION.  WHAT I HAVE TO SAY ONLY SERVES TO
EMPHASIZE MY AGREEMENT WITH HIS CONCLUSION. 

IN CALIFORNIA V. THOMPSON, 313 U.S. 109, THIS COURT RECOGNIZED THAT
POSITIVE INTERVENTION OF CONGRESS WAS REQUIRED TO DISPLACE THE RESERVE
POWER OF THE STATE TO PROMOTE SAFETY AND HONESTY IN THE BUSINESS OF
ARRANGING FOR MOTOR CARRIER TRANSPORTATION EVEN BEYOND STATE LINES.  AS
TO SUCH BUSINESS THE POWER OF CONGRESS TO REGULATE COMMERCE "AMONG THE
SEVERAL STATES" WAS AN EXCLUDING, NOT AN EXCLUSIVE, POWER - STATE
ACTION WAS NOT BARRED BY THE COMMERCE CLAUSE BUT ONLY BY APPROPRIATE
CONGRESSIONAL ACTION.  STATE ACTION IS DISPLACED ONLY TO THE EXTENT
THAT CONGRESS CHOOSES TO DISPLACE IT.  ONE WOULD SUPPOSE THAT, WHEN
CONGRESS HAS PROSCRIBED DEFINED CONDUCT AND ATTACHED SPECIFIC
CONSEQUENCES TO VIOLATIONS OF SUCH OUTLAWRY, THE STATES WERE NO LONGER
FREE TO IMPOSE ADDITIONAL OR DIFFERENT CONSEQUENCES BY MAKING THE SAME
MISCONDUCT ALSO A STATE OFFENSE.  AND THAT IS THIS CASE. 

FOR THE FIRST TIME IN THE HUNDRED AND TWENTY-FIVE YEARS SINCE THE
PROBLEM OF DETERMINING WHEN STATE REGULATION HAS BEEN DISPLACED BY
FEDERAL ENACTMENT CAME BEFORE THIS COURT, GIBBONS V. OGDEN, 9 WHEAT. 
1, THE COURT TODAY DECIDES THAT THE STATES CAN IMPOSE AN ADDITIONAL
PUNISHMENT FOR A FEDERAL OFFENSE UNLESS CONGRESS IN SO MANY WORDS
FORBIDS THE STATES TO DO IT.  WHEN CONGRESS DEALS WITH A SPECIFIC EVIL
IN A SPECIFIC WAY, SUBJECT TO SPECIFIED SANCTIONS, IT IS NOT REASONABLE
TO REQUIRE CONGRESS TO ADD, "AND HEREAFTER THE STATES MAY NOT ALSO
PUNISH FOR THIS VERY OFFENSE," TO PRECLUDE THE STATES FROM OUTLAWING
THE SAME SPECIFIC EVIL UNDER DIFFERENT SANCTIONS.  FN1  TO DO SO WOULD
IMPUTE TO CONGRESS THE PURPOSE OF IMPOSING UPON A NATIONWIDE RULE THE
CRAZY-QUILT OF DIVERSITY - ACTUAL OR POTENTIAL - IN STATE LEGISLATION,
WHEN THE FEDERAL POLICY WAS ADOPTED BY CONGRESS PRECISELY BECAUSE IT
CONCLUDED THAT THE MANNER IN WHICH THE STATES, UNDER THEIR PERMISSIVE
POWER, DEALT WITH THE EVIL WAS UNSATISFACTORY.  SUCH AN INFERENCE IS A
STRAINED AND STRANGE WAY OF INTERPRETING THE MIND OF CONGRESS.  IT ALSO
DISREGARDS AN IMPORTANT ASPECT OF CIVIL LIBERTIES, NAMELY, AVOIDANCE OF
DOUBLE PUNISHMENT FOR THE SAME ACT EVEN THOUGH SUCH DOUBLE PUNISHMENT
MAY BE CONSTITUTIONALLY PERMISSIBLE.  SEE JEROME V. UNITED STATES, 318
U.S. 101, 105. 

OF COURSE THE SAME PHYSICAL ACT MAY OFFEND A STATE POLICY AND ANOTHER
POLICY OF THE UNITED STATES.  ASSAULTING A UNITED STATES MARSHAL WOULD
OFFEND A STATE'S POLICY AGAINST STREET BRAWLS, BUT IT MAY ALSO BE AN
OBSTRUCTION TO THE ADMINISTRATION OF FEDERAL LAW.  SCORES OF SUCH
INSTANCES, INEVITABLE IN A FEDERAL GOVERNMENT, WILL READILY SUGGEST
THEMSELVES.  THAT WAS THE KIND OF A SITUATION PRESENTED BY UNITED
STATES V. MARIGOLD, 9 HOW.  560.  PASSING COUNTERFEIT CURRENCY MAY, IN
ONE ASPECT, BE "A PRIVATE CHEAT PRACTISED BY ONE CITIZEN OF OHIO UPON
ANOTHER," AND THEREFORE INVOKE A STATE'S CONCERN IN "PROTECTING HER
CITIZENS AGAINST FRAUDS," 9 HOW.  568, 569, BUT THE SAME PASSING
BECOMES OF VITAL CONCERN TO THE FEDERAL GOVERNMENT BECAUSE IT TENDS TO
DEBASE THE CURRENCY.  SUCH A SITUATION IS QUITE DIFFERENT FROM THIS
CASE.  IT MERITS REPETITION TO SAY THAT WE ARE NOW REVERSING A STATE
COURT FOR HOLDING THAT THE VERY SAME CONDUCT FOR THE DISOBEDIENCE OF
WHICH FEDERAL REGULATION IMPOSES A MAXIMUM FINE OF ONE HUNDRED DOLLARS
FOR THE FIRST OFFENSE CANNOT BE PROSECUTED IN A STATE COURT UNDER A
STATE LAW IMPOSING A LARGER FINE AND, PERCHANCE, A PRISON SENTENCE. 

THE TALK ABOUT "CONFLICT" AS A BASIS FOR DISPLACING STATE BY FEDERAL
ENACTMENT IS RELEVANT ONLY IN SITUATIONS WHERE CONGRESS HAS CHOSEN TO
"CIRCUMSCRIBE ITS REGULATION AND OCCUPY ONLY A LIMITED FIELD," WHILE
STATE REGULATION IS "OUTSIDE THAT LIMITED FIELD," AND YET AN INFERENCE
OF NEGATION OF STATE ACTION IS SOUGHT TO BE DRAWN.  SEE KELLY V.
WASHINGTON, 302 U.S. 1, 10.  EVEN IN SUCH CIRCUMSTANCES THIS COURT HAS
DRAWN INFERENCES OF IMPLIED EXCLUSION OF STATE ACTION ALTHOUGH IN NO
SENSE OF THE WORD WOULD THERE HAVE BEEN PHYSICAL CLASH BETWEEN STATE
AND FEDERAL REGULATION SO AS TO PRECLUDE CONCURRENCE OF VITALITY FOR
BOTH REGULATIONS.  SEE, E.G., CLOVERLEAF BUTTER CO. V. PATTERSON, 315
U.S. 148; HILL V. FLORIDA, 325 U.S. 538.  IN THIS CASE WE HAVE THE VERY
CONDUCT THERETOFORE LEFT TO STATE REGULATION TAKEN OVER BY FEDERAL
REGULATION, AND YET THE COURT SUPERIMPOSES UPON THE DISPLACING FEDERAL
REGULATION THE STATE REGULATION WHICH WAS CONSCIOUSLY DISPLACED.  THAT
A COURT WHICH ONLY ON APRIL 4, 1949, DECIDED H.P. HOOD & SONS V. DU
MOND, 336 U.S. 525, AS IT DID, SHOULD NOW DECIDE THIS CASE AS IT DOES,
PRESENTS INDEED A PROBLEM FOR RECONCILIATION. 

FN1  THE VARIETY OF SANCTIONS NOW ENFORCEABLE IS REFLECTED IN THE
FOLLOWING STATUTES: 

UNITED STATES:  FINE OF NOT MORE THAN $100 FOR THE FIRST OFFENSE AND
NOT MORE THAN $500 FOR ANY SUBSEQUENT OFFENSE.  49 STAT. 564, 49 U.S.C.
SEC. 322(A). 

CALIFORNIA:  FINE OF NOT OVER $250 OR IMPRISONMENT FOR NOT OVER 90
DAYS OR BOTH, AND ON THE SECOND CONVICTION, IMPRISONMENT FOR NOT LESS
THAN 30 DAYS OR MORE THAN 180 DAYS.  FOR SUBSEQUENT CONVICTIONS,
IMPRISONMENT FOR NOT LESS THAN 90 DAYS AND NOT MORE THAN ONE YEAR. 
CAL. PEN.  CODE SEC. 654.3(DEERING, 1947 SUPP.). 

WASHINGTON:  FINE OF NOT OVER $250 OR NOT OVER 90 DAYS IN JAIL;
APPARENTLY ADDITIONAL OFFENSES DO NOT INCREASE THE PUNISHMENT.  WASH.
REV. STAT. ANN. SEC. 2266(1940), SECS. 6397-19, 6397-20(1941 SUPP.). 

WYOMING:  FINE OF NOT LESS THAN $25, NOR MORE THAN $100, OR
IMPRISONMENT FOR NOT MORE THAN SIX MONTHS OR BOTH.  WYOMING COMP. STAT.
ANN. SECS. 60-1309, 60-1362(1945).  THE APPLICABILITY OF THESE SECTIONS
TO A SITUATION OF THE PRESENT TYPE IS NOT FREE FROM DOUBT. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
JACKSON JOIN, DISSENTING. 

THE QUESTION PRESENTED IS WHETHER SEC. 654.1 OF THE PENAL CODE OF
CALIFORNIA  FN1  IS INVALID AS APPLIED IN THIS CASE TO INTERSTATE
COMMERCE BY THE MUNICIPAL COURT OF LOS ANGELES.  THE RESPONDENTS, ZOOK
AND CRAIG, WERE CONVICTED OF MAKING A SALE, IN 1948, IN CALIFORNIA, OF
INTERSTATE MOTOR TRANSPORTATION TO TEXAS, ON AN INDIVIDUAL FARE BASIS,
OVER THE PUBLIC HIGHWAYS OF CALIFORNIA, UNDER CONDITIONS WHEREBY THE
TRANSPORTATION WAS TO BE SUPPLIED BY A CARRIER HAVING NO CERTIFICATE OF
CONVENIENCE AND NECESSITY OR OTHER PERMIT FROM THE PUBLIC UTILITIES
COMMISSION OF CALIFORNIA, OR FROM THE INTERSTATE COMMERCE COMMISSION OF
THE UNITED STATES.  SUCH A SALE WAS ADJUDGED CONTRARY TO THE TERMS OF
SEC. 654.1 BUT THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
CALIFORNIA HELD THAT THAT SECTION WAS INVALID AS THUS APPLIED TO
INTERSTATE COMMERCE IN THE FACE OF THE INTERSTATE COMMERCE ACT OF THE
UNITED STATES AND OF ORDERS ISSUED UNDER THE AUTHORITY OF THAT ACT
MAKING PRECISELY SUCH A SALE A FEDERAL OFFENSE.  WE AGREE WITH THE
COURT BELOW THAT CALIFORNIA COULD NOT, WITHOUT THE CONSENT OF CONGRESS,
LAWFULLY THUS SHARE THE EXCLUSIVE JURISDICTION BEING EXERCISED BY
CONGRESS TO REGULATE COMMERCE AMONG THE STATES AND WE FIND HERE NO SUCH
CONSENT.  ON THE OTHER HAND, WE DO FIND HERE, UNDER ALL THE
CIRCUMSTANCES, THAT CONGRESS HAS EXERCISED ITS POWER OF REGULATION OF
THIS PRECISE FORM OF INTERSTATE COMMERCE TO THE EXCLUSION OF THE STATES
AND IN CONFLICT WITH THE REGULATION ATTEMPTED HERE BY THE STATE OF
CALIFORNIA. 

FROM 1933 UNTIL 1947 THE CALIFORNIA LEGISLATION ON THIS SUBJECT
EXPRESSLY DISTINGUISHED BETWEEN INTRASTATE AND INTERSTATE
TRANSPORTATION.  IT PROVIDED THAT THE STATE LEGISLATION WAS TO BE
APPLICABLE TO INTERSTATE MOTOR CARRIERS ONLY "UNTIL SUCH TIME AS
CONGRESS OF THE UNITED STATES SHALL ACT,  ...  "  FN2  OR IN "THE
ABSENCE OF ACTION ON THE PART OF CONGRESS OR THE INTERSTATE COMMERCE
COMMISSION.   ...  "  FN3  CALIFORNIA THUS RECOGNIZED NOT ONLY THE
POSSIBILITY BUT THE PROPRIETY OF FEDERAL REGULATION OF THIS FORM OF
COMMERCE TO THE EXTENT OF ITS INTERSTATE OPERATIONS.  IN 1935 FN4  AND
IN 1940  FN5  CONGRESS, ON ITS PART, EXPRESSLY RECOGNIZED A FEDERAL
RESPONSIBILITY FOR SUCH REGULATION.  IT ASSUMED JURISDICTION OVER THE
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND OVER
SAFETY OF OPERATIONS AND STANDARDS OF EQUIPMENT.  AS TO OTHER
REGULATIONS, CONGRESS TEMPORARILY AND CONDITIONALLY EXEMPTED THIS KIND
OF TRANSPORTATION FROM THE INTERSTATE COMMERCE ACT.  IN DOING SO,
HOWEVER, IT AUTHORIZED THE INTERSTATE COMMERCE COMMISSION TO DETERMINE
FROM TIME TO TIME TO WHAT EXTENT, IF ANY, THE EXEMPTION SHOULD BE
REMOVED.  IN 1942, AFTER A THOROUGH STUDY, THAT COMMISSION LARGELY
REMOVED THE EXEMPTION.  FN6 THUS, BY EXPRESS AUTHORITY OF CONGRESS, THE
REGULATION OF THE INTERSTATE OPERATIONS OF THIS TYPE OF TRANSPORTATION
WAS VESTED IN THE INTERSTATE COMMERCE COMMISSION AFTER A DETERMINATION
BY THAT COMMISSION THAT SUCH AN APPLICATION OF FEDERAL LAW WAS
NECESSARY TO CARRY OUT THE POLICY OF CONGRESS. 

1947, CONTAINED NO PROVISION DISTINGUISHING BETWEEN INTRASTATE AND
INTERSTATE COMMERCE IN THIS FIELD.  IT MENTIONED ONLY "TRANSPORTATION
...  OVER THE PUBLIC HIGHWAYS OF THE STATE OF CALIFORNIA  ...  "  THE
STATE COURT BELOW NEVERTHELESS INTERPRETED THE SECTION AS SEEKING TO
INCLUDE INTERSTATE AS WELL AS INTRASTATE TRANSPORTATION AND THEN HELD
THAT IT WAS INVALID INSOFAR AS IT APPLIED TO INTERSTATE
TRANSPORTATION.  FN7  WE ACCEPT THE STATE COURT'S INTERPRETATION AND
THE QUESTION BEFORE US IS ONLY THE VALIDITY OF THE STATUTE AS APPLIED
TO INTERSTATE TRANSPORTATION N8.  IF IT WERE NOT FOR THE INTERPRETATION
GIVEN TO THE CALIFORNIA STATUTE BY THE COURT BELOW, THE ISSUE MIGHT BE
DISPOSED OF BY LIMITING THAT STATUTE, LIKE ITS PREDECESSOR, TO
INTRASTATE TRANSPORTATION. 

THE COMPLAINT IS PRINTED IN THE MARGIN.  FN9  ITS SUFFICIENCY IS THE
PRECISE ISSUE PRESENTED TO US ON THE DEMURRER WHICH THE COURT BELOW HAS
ORDERED SUSTAINED.  IN THAT COURT, THE RESPONDENTS SUCCESSFULLY
ASSERTED THE INVALIDITY OF THE STATE STATUTE IN THE FACE OF THE
INTERSTATE COMMERCE ACT APPLICABLE TO THE SAME OFFENSE.  THE PETITIONER
CONCEDES THAT THE TWO LAWS SOUGHT TO FORBID AND PUNISH THE SAME ACTS,
BUT CONTENDS THAT THIS WAS A PERMISSIBLE DUPLICATION. 

AGREEING THAT THE TWO STATUTES FORBID THE SAME ACTS, OUR FIRST DUTY
IS TO SEE HOW FAR THIS IDENTITY OF LEGISLATIVE EFFECT EXTENDS.  OUR
REMAINING DUTY THEN IS TO DETERMINE WHETHER THE STATE LAW IS VALID IN
THE FACE OF THE FEDERAL LAW ON THE SAME SUBJECT. 

THE SUBSTANTIAL IDENTITY BETWEEN THE STATUTES ENDS WITH THEIR
DEFINITIONS OF THE OFFENSE.  ONLY THE FEDERAL ACT REQUIRES A BROKER'S
LICENSE AND THE GENERAL EXEMPTIONS FROM THE RESPECTIVE ACTS ARE IN
GREAT CONFLICT.  FN10  THE PENALTIES ARE SUBSTANTIALLY DIFFERENT.  FN11
FOR EXAMPLE, IN THE INSTANT CASE EACH RESPONDENT WAS FINED $150 MORE
UNDER THE STATE LAW THAN WOULD HAVE BEEN POSSIBLE UNDER THE FEDERAL LAW
FOR WHAT APPARENTLY WAS A FIRST OFFENSE UNDER EACH ACT.  UNDER THE
STATE LAW THE COURT ALSO HAD AN OPTION TO IMPOSE A JAIL SENTENCE,
WHEREAS NO SUCH OPTION WOULD HAVE BEEN AVAILABLE TO IT UNDER THE
FEDERAL LAW.  THE FEDERAL LAW ALSO PROVIDED FOR A FINE UP TO $500 FOR
EACH OFFENSE AFTER THE FIRST.  UNDER THE STATE LAW, CONVICTIONS AFTER
THE FIRST WERE PUNISHABLE SOLELY BY IMPRISONMENT.  ACCORDINGLY, WHILE
THE OFFENSE HERE CHARGED WAS ONE WHICH VIOLATED BOTH THE STATE AND
FEDERAL STATUTES, THERE WAS A SUBSTANTIAL CONFLICT BETWEEN THE
SANCTIONS AVAILABLE FOR THE ENFORCEMENT OF THOSE STATUTES.  THIS
CONFLICT IS BY NO MEANS CONCLUSIVE OF THIS CASE BUT IT IS ENTITLED TO
CONSIDERATION AS INDICATING THE ABSENCE, RATHER THAN THE PRESENCE, OF
AN IMPLIED CONSENT BY THE UNITED STATES TO THE INTRUSION OF THE STATE
LAW INTO THE EXCLUSIVE JURISDICTION MADE AVAILABLE TO THE UNITED STATES
BY THE FEDERAL CONSTITUTION.  PROSECUTION AND PUNISHMENT UNDER BOTH THE
STATE AND FEDERAL STATUTES WOULD, IN THIS INSTANCE, OFTEN RESULT IN
GREATER PUNISHMENT THAN THE MAXIMUM PERMITTED BY THE FEDERAL LAW.  WE
CANNOT READILY ASSUME CONGRESSIONAL CONSENT TO STATE LEGISLATION THAT
MAKES AN EXPRESSLY STATED CONGRESSIONAL "MAXIMUM" PENALTY NO LONGER A
MAXIMUM PENALTY. 

THE ISSUE REQUIRES ANSWERS TO TWO QUESTIONS:  I. DID THE CALIFORNIA
CODE INVADE THE EXCLUSIVE JURISDICTION WHICH CONGRESS WAS EXERCISING
THROUGH ITS INTERSTATE COMMERCE ACT?  II.  IF SO, WAS THE CONVICTION
UNDER THE CALIFORNIA CODE INVALID ON THE GROUND THAT CONGRESS HAD TAKEN
EXCLUSIVE JURISDICTION OVER THAT OFFENSE AND HAD NOT CONSENTED TO SHARE
ITS JURISDICTION WITH CALIFORNIA AS HERE PROPOSED?  FOR THE REASONS TO
BE STATED, WE BELIEVE THE ANSWER TO EACH OF THOSE QUESTIONS SHOULD BE
YES. 

                                  I. 

THE CALIFORNIA CODE INVADED THE EXCLUSIVE JURISDICTION WHICH CONGRESS
WAS EXERCISING THROUGH ITS INTERSTATE COMMERCE ACT. 

THE PETITIONER'S CONCESSION THAT THE RESPONDENTS' ACTS SIMULTANEOUSLY
VIOLATED THE TERMS OF BOTH STATUTES SHARPLY DISTINGUISHES THE ISSUE
HERE FROM THOSE OFTEN PRESENTED IN THIS GENERAL FIELD OF CONTROVERSY. 
(1) WE DO NOT HAVE HERE THE MUCH LITIGATED ISSUE AS TO THE VALIDITY OF
STATE STATUTES PROHIBITING OR OTHERWISE REGULATING ACTS COMMITTED IN
THE COURSE OF INTERSTATE COMMERCE BUT IN A FIELD OF THAT COMMERCE WHERE
CONGRESS HAS TAKEN NO ACTION.  IN THE INSTANT CASE, CONGRESS HAS TAKEN
JURISDICTION BY STATUTE NOT ONLY IN THIS GENERAL FIELD BUT OVER THE
PRECISE TYPE OF INTERSTATE MOTOR CARRIER TRANSPORTATION OF PASSENGERS
THAT IS THE SUBJECT OF THE STATE LEGISLATION AND OF THE COMPLAINT IN
THIS CASE.  (2) SIMILARLY, WE DO NOT HAVE HERE A CASE WHERE A STATE HAS
APPLIED ITS PROHIBITORY OR OTHERWISE REGULATORY MEASURES TO SOME
INTRASTATE TRANSACTION TAKING PLACE BEFORE OR AFTER, AND SEPARABLE
FROM, THE TRANSACTIONS IN INTERSTATE COMMERCE OVER WHICH THE FEDERAL
GOVERNMENT HAS TAKEN JURISDICTION.  (3) WE DO NOT HAVE HERE AN ATTEMPT
BY A STATE TO SUPPLEMENT FEDERAL CONTROL OVER SOME ACTIVITY RELATED TO
BUT NOT SPECIFICALLY COVERED BY THE FEDERAL LEGISLATION.  (4) ALSO, WE
DO NOT HAVE HERE A CASE WHERE CONGRESS HAS EXPRESSLY CONSENTED TO SHARE
WITH THE STATES THE PLENARY AND SUPREME AUTHORITY OF CONGRESS TO TAKE
JURISDICTION OVER THE REGULATION OF THE INTERSTATE COMMERCE IN
QUESTION.  (5) ON THE OTHER HAND, WE DO HAVE HERE THE SIGNIFICANT
SITUATION OF A STATE ATTEMPTING, BY A NEW STATE LAW, TO REACH AND
PUNISH, ADDITIONALLY, A TRANSACTION IN INTERSTATE COMMERCE IN THE FACE
OF THE ACTIVE EXERCISE OF SUBSTANTIALLY CONFLICTING FEDERAL
JURISDICTION OVER THE SAME TRANSACTION AND IN THE ABSENCE OF EXPRESS
CONGRESSIONAL CONSENT TO SUCH ATTEMPTED DUPLICATION OF JURISDICTION. 
THIS IS IN CONTRAST TO AN ATTEMPT BY A STATE TO HELP ENFORCE, AS SUCH,
AN ALREADY EXISTING FEDERAL STATUTE COVERING THE OFFENSE. 

WE START NOT MERELY WITH THE INHERENT RIGHT OF A STATE TO EXERCISE
ITS POLICE POWER OVER ACTS WITHIN ITS JURISDICTION.  WE START ALSO WITH
THE CONSTITUTIONAL PROVISIONS BY WHICH THE SUPREME LEGISLATIVE POWER OF
THE RESPECTIVE STATES HAS BEEN DELEGATED TO CONGRESS TO REGULATE
INTERSTATE COMMERCE.  FN12 

ONCE CONGRESS HAS LAWFULLY EXERCISED ITS LEGISLATIVE SUPREMACY IN ONE
OF ITS ALLOTTED FIELDS AND HAS NOT ACCOMPANIED THAT EXERCISE WITH AN
INDICATION OF ITS CONSENT TO SHARE IT WITH THE STATES, THE BURDEN OF
OVERCOMING THE SUPREMACY OF THE FEDERAL LAW IN THAT FIELD IS UPON ANY
STATE SEEKING TO DO SO. 

AN EARLY STATEMENT OF THE GENERAL PRINCIPLE INVOLVED WAS MADE BY MR.
JUSTICE STORY IN PRIGG V. PENNSYLVANIA, 16 PET. 539, 617-618.  FN13
THAT STATEMENT WAS APPROVED AND ENLARGED UPON BY MR. JUSTICE J. R.
LAMAR IN SOUTHERN R. CO. V. RAILROAD COMM'N OF INDIANA, 236 U.S. 439,
IN A CASE ARISING UNDER THE INTERSTATE COMMERCE ACT IN WHICH, ON
REASONING APPLICABLE IN THE INSTANT CASE, AN INDIANA STATUTE WAS HELD
INVALID BECAUSE IT REQUIRED HANDHOLDS ON THE SIDES OR ENDS OF RAILROAD
CARS OPERATING IN INTERSTATE COMMERCE IN INDIANA IN SUBSTANTIAL
DUPLICATION OF THE FEDERAL SAFETY APPLIANCE ACT REQUIRING HANDHOLDS ON
BOTH THE SIDES AND ENDS OF SUCH CARS.  THERE MR. JUSTICE LAMAR SAID: 

"BUT THE PRINCIPLE THAT THE OFFENDER MAY, FOR ONE ACT, BE PROSECUTED
IN TWO JURISDICTIONS HAS NO APPLICATION WHERE ONE OF THE GOVERNMENTS
HAS EXCLUSIVE JURISDICTION OF THE SUBJECT-MATTER AND THEREFORE THE
EXCLUSIVE POWER TO PUNISH.  SUCH IS THE CASE HERE WHERE CONGRESS, IN
THE EXERCISE OF ITS POWER TO REGULATE INTERSTATE COMMERCE, HAS
LEGISLATED AS TO THE APPLIANCES WITH WHICH CERTAIN INSTRUMENTALITIES OF
THAT COMMERCE MUST BE FURNISHED IN ORDER TO SECURE THE SAFETY OF
EMPLOYES.  UNTIL CONGRESS ENTERED THAT FIELD THE STATES COULD LEGISLATE
AS TO EQUIPMENT IN SUCH MANNER AS TO INCIDENTALLY AFFECT WITHOUT
BURDENING INTERSTATE COMMERCE.  BUT CONGRESS COULD PASS THE SAFETY
APPLIANCE ACT ONLY BECAUSE OF THE FACT THAT THE EQUIPMENT OF CARS
MOVING ON INTERSTATE ROADS WAS A REGULATION OF INTERSTATE COMMERCE. 
UNDER THE CONSTITUTION THE NATURE OF THAT POWER IS SUCH THAT WHEN
EXERCISED IT IS EXCLUSIVE, AND IPSO FACTO, SUPERSEDES EXISTING STATE
LEGISLATION ON THE SAME SUBJECT.  CONGRESS OF COURSE COULD HAVE
'CIRCUMSCRIBED ITS REGULATIONS' SO AS TO OCCUPY A LIMITED FIELD. 
SAVAGE V. JONES, 225 U.S. 501, 533.  ATLANTIC LINE V. GEORGIA, 234 U.S.
280, 293.  BUT SO FAR AS IT DID LEGISLATE, THE EXCLUSIVE EFFECT OF THE
SAFETY APPLIANCE ACT DID NOT RELATE MERELY TO DETAILS OF THE STATUTE
AND THE PENALTIES IT IMPOSED, BUT EXTENDED TO THE WHOLE SUBJECT OF
EQUIPPING CARS WITH APPLIANCES INTENDED FOR THE PROTECTION OF
EMPLOYES.  THE STATES THEREAFTER COULD NOT LEGISLATE SO AS TO REQUIRE
GREATER OR LESS OR DIFFERENT EQUIPMENT; NOR COULD THEY PUNISH BY
IMPOSING GREATER OR LESS OR FIFFERENT PENALTIES.  ... 

     .         .         .         .         . 

"THE TEST, HOWEVER, IS NOT WHETHER THE STATE LEGISLATION IS IN
CONFLICT WITH THE DETAILS OF THE FEDERAL LAW OR SUPPLEMENTS IT, BUT
WHETHER THE STATE HAD ANY JURISDICTION OF A SUBJECT OVER WHICH CONGRESS
HAD EXERTED ITS EXCLUSIVE CONTROL."  ID. AT PP. 446, 448. 

MR. JUSTICE HOLMES SAID IN CHARLESTON & W. CAR.  R. CO. V. VARNVILLE
CO., 237 U.S. 597, 604: 

"WHEN CONGRESS HAS TAKEN THE PARTICULAR SUBJECT-MATTER IN HAND
COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION, AND A STATE LAW IS NOT TO
BE DECLARED A HELP BECAUSE IT ATTEMPTS TO GO FARTHER THAN CONGRESS HAS
SEEN FIT TO GO." 

MR. JUSTICE BUTLER REEMPHASIZED THIS IN SWEEPING TERMS IN MISSOURI
PAC. R. CO. V. PORTER, 273 U.S. 341, 346, BY CONCLUDING THE OPINION OF
THE COURT AS FOLLOWS: 

"ITS (CONGRESS') POWER TO REGULATE SUCH (INTERSTATE) COMMERCE AND ALL
ITS INSTRUMENTALITIES IS SUPREME; AND, AS THAT POWER HAS BEEN EXERTED,
STATE LAWS HAVE NO APPLICATION.  THEY CANNOT BE APPLIED IN COINCIDENCE
WITH, AS COMPLEMENTARY TO OR AS IN OPPOSITION TO, FEDERAL ENACTMENTS
WHICH DISCLOSE THE INTENTION OF CONGRESS TO ENTER A FIELD OF REGULATION
THAT IS WITHIN ITS JURISDICTION." 

SEE ALSO, ERIE R. CO. V. NEW YORK, 233 U.S. 671, 683; SECOND
EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 55. 

RELATED TO THIS EXCLUSIVE JURISDICTION OF CONGRESS, ESTABLISHED BY
ARTICLE VI OF THE CONSTITUTION, IS THE GENERAL POLICY AGAINST
SUBJECTING ANYONE TO PUNISHMENT MORE THAN ONCE FOR THE COMMISSION OF A
SINGLE ACT.  UNLESS CARE IS TAKEN TO PREVENT THIS, SUCH DOUBLE
PUNISHMENT MAY RESULT FROM THE OVERLAPPING OF THE FEDERAL AND STATE
JURISDICTIONS.  HOWEVER, ITS UNFAIRNESS TO THE INDIVIDUAL, AS WELL AS
ITS CUMBERSOMENESS FOR ENFORCEMENT PURPOSES, SUGGESTS THAT IT SHOULD
NOT BE READ INTO LEGISLATION IN THE ABSENCE OF CLEAR LANGUAGE
DEMONSTRATING A PURPOSE TO PERMIT IT.  IN A CASE WHICH RELATED TO THE
INTERPRETATION OF A FEDERAL STATUTE THAT MIGHT DUPLICATE OR BUILD UPON
A STATE LAW, THIS COURT SAID: 

"  ...  IT SHOULD BE NOTED THAT THE DOUBLE JEOPARDY PROVISION OF THE
FIFTH AMENDMENT DOES NOT STAND AS A BAR TO FEDERAL PROSECUTION THOUGH A
STATE CONVICTION BASED ON THE SAME ACTS HAS ALREADY BEEN OBTAINED.  ...
THAT CONSIDERATION GIVES ADDITIONAL WEIGHT TO THE VIEW THAT WHERE
CONGRESS IS CREATING OFFENSES WHICH DUPLICATE OR BUILD UPON STATE LAW,
COURTS SHOULD BE RELUCTANT TO EXPAND THE DEFINED OFFENSES BEYOND THE
CLEAR REQUIREMENTS OF THE TERMS OF THE STATUTE."  JEROME V. UNITED
STATES, 318 U.S. 101, 105. 

SO HERE WE SHOULD BE RELUCTANT TO READ INTO A FEDERAL STATUTE
CONGRESSIONAL CONSENT TO STATE LEGISLATION WHICH AUTHORIZED PROSECUTION
AND PUNISHMENT BY THE STATE IN ADDITION TO FEDERAL PROSECUTION AND
PUNISHMENT. 

WHERE THERE IS LEGISLATIVE INTENT TO SHARE THE EXCLUSIVENESS OF THE
CONGRESSIONAL JURISDICTION, APPROPRIATE LANGUAGE CAN MAKE THAT INTENT
CLEAR.  AN OUTSTANDING EXAMPLE OF SUCH AUTHORIZATION IS IN THE
EIGHTEENTH AMENDMENT, NOW REPEALED.  IT WAS THERE PROVIDED THAT "THE
CONGRESS AND THE SEVERAL STATES SHALL HAVE CONCURRENT POWER TO ENFORCE
THIS ARTICLE BY APPROPRIATE LEGISLATION."  (U.S. CONST.) MORE RECENTLY,
CLEAR LANGUAGE WAS USED BY CONGRESS TO INSURE THE VALIDITY OF STATE
COOPERATION IN THE "MIGRATORY BIRD CONSERVATION ACT," APPROVED FEBRUARY
18, 1929: 

"SEC. 17.  THAT WHEN ANY STATE SHALL, BY SUITABLE LEGISLATION, MAKE
PROVISION ADEQUATELY TO ENFORCE THE PROVISIONS OF THIS ACT AND ALL
REGULATIONS PROMULGATED THEREUNDER, THE SECRETARY OF AGRICULTURE MAY SO
CERTIFY, AND THEN AND THEREAFTER SAID STATE MAY COOPERATE WITH THE
SECRETARY OF AGRICULTURE IN THE ENFORCEMENT OF THIS ACT AND THE
REGULATIONS THEREUNDER."  45 STAT. 1225, 16 U.S.C. SEC. 715P. 

STILL CLOSER TO THE PRESENT SITUATION IS THE LANGUAGE USED BY THE
CONGRESS THAT PASSED THE MOTOR CARRIER ACT, 1935.  IN "THE WHALING
TREATY ACT" IT SAID: 

"SEC. 12.  THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE
SEVERAL STATES AND TERRITORIES FROM MAKING OR ENFORCING LAWS OR
REGULATIONS NOT INCONSISTENT WITH THE PROVISIONS OF SAID CONVENTION
(FOR THE REGULATION OF WHALING) OR OF THIS ACT, OR FROM MAKING OR
ENFORCING LAWS OR REGULATIONS WHICH SHALL GIVE FURTHER PROTECTION TO
WHALES  ...  " 49 STAT.  1248, 16 U.S.C. SEC. 912.  FN14 

THE MOTOR CARRIER ACT, 1935, DID NOT OVERLOOK THE SUBJECT OF
EXCLUSIVE STATE AND FEDERAL JURISDICTION OVER THE RESPECTIVE FIELDS OF
INTRASTATE AND INTERSTATE COMMERCE TOUCHED BY THE ACT.  IT DID NOT,
HOWEVER, APPROVE JOINT AND CONFLICTING CONTROL BY BOTH AT THE SAME
TIME.  IT EXPRESSLY VESTED IN THE INTERSTATE COMMERCE COMMISSION THE
REGULATION OF THE TRANSPORTATION OF PASSENGERS BY MOTOR CARRIERS
ENGAGED IN INTERSTATE COMMERCE.  WITH EQUAL CLARITY IT EXPRESSLY
PROVIDED THAT PART II OF THE INTERSTATE COMMERCE ACT SHOULD NOT AFFECT
THE POWERS OF TAXATION OF THE SEVERAL STATES.  IT THUS DEALT WITH AND
PRESERVED TO THE STATES THEIR FULL POWERS TO TAX WITHOUT ADDED
RESTRICTION BECAUSE OF THE MOTOR CARRIER ACT'S RELATION TO INTERSTATE
COMMERCE.  THE STATE POWERS OF TAXATION WERE THUS DISTINGUISHED FROM
THOSE OF REGULATION BECAUSE THE POWER OF REGULATION OF INTERSTATE
COMMERCE WAS VESTED EXPRESSLY IN THE INTERSTATE COMMERCE COMMISSION. 
ALSO, IN RELATION TO THE REGULATION OF INTRASTATE COMMERCE, CONGRESS
PROVIDED THAT NOTHING IN PART II OF THE INTERSTATE COMMERCE ACT "SHALL
BE CONSTRUED  ...  TO AUTHORIZE A MOTOR CARRIER TO DO AN INTRASTATE
BUSINESS ON THE HIGHWAYS OF ANY STATE, OR TO INTERFERE WITH THE
EXCLUSIVE EXERCISE BY EACH STATE OF THE POWER OF REGULATION OF
INTRASTATE COMMERCE BY MOTOR CARRIERS ON THE HIGHWAYS THEREOF."  SEC.
202(C), 49 STAT. 543, LATER DESIGNATED SEC. 202(B), 54 STAT. 920, 49
U.S.C. SEC. 302(B).  FOR FULL TEXT OF ORIGINAL SEC. 202(B) AND (C),
LATER DESIGNATED SEC. 202(A) AND (B), SEE APPENDIX B (2), INFRA, P.
781. 

CONGRESS THUS DEALT DIRECTLY WITH THE PROBLEM OF STATE AND FEDERAL
REGULATION OF MOTOR CARRIER TRANSPORTATION, EITHER INTERSTATE OR
INTRASTATE IN CHARACTER.  CONGRESS INDICATED NO CONSENT TO SHARE WITH
OTHERS ITS EXCLUSIVE JURISDICTION OVER THE REGULATION OF INTERSTATE
COMMERCE.  IF IT HAD INTENDED TO DO SO, THAT WOULD HAVE BEEN THE PLACE
TO EXPRESS SUCH AN INTENT.  THE LANGUAGE USED REFLECTED NOT MERELY AN
ABSENCE OF CONGRESSIONAL CONSENT TO THE SHARING OF ITS JURISDICTION
OVER ANY FORM OF INTERSTATE COMMERCE.  ON THE CONTRARY, ESPECIALLY WHEN
READ WITH SEC. 203(B)(9), IT EVIDENCED A CONSCIOUS CONGRESSIONAL
DISSENT FROM ANY SUCH SHARING OF ITS JURISDICTION OVER THIS FORM OF
INTERSTATE COMMERCE DESCRIBED IN THIS LEGISLATION.  SECTION 203(B)(9)
STATED A POSITIVE INSISTENCE UPON FEDERAL JURISDICTION IN THE PRECISE
FIELD WHICH CONCERNS US HERE.  IT PROVIDED THAT THE FEDERAL
JURISDICTION BECOME EFFECTIVE WHENEVER AND TO THE EXTENT THAT THE
INTERSTATE COMMERCE COMMISSION FOUND THE NECESSITY FOR IT.  IN THIS
NARROW FIELD, CONGRESS THUS EXPRESSLY LEFT TEMPORARILY ON TRIAL THE
SUBSTANTIALLY EXCLUSIVE STATE REGULATION OF INTERSTATE COMMERCE WHICH
WAS ALREADY IN EFFECT.  THIS EXPRESS TEMPORARY CONDITIONAL EXEMPTION
CREATED A SPECIAL SITUATION IN WHICH THE CONSENT OF CONGRESS TO STATE
REGULATION WAS TO BE CONTINUED OR CUT OFF BY THE INTERSTATE COMMERCE
COMMISSION.  IT DID NOT SUGGEST ANY SHARING OR DUPLICATION OF CONTROL
BY THE COMMISSION AND THE STATE.  THIS TEMPORARY SURVIVAL OF STATE
CONTROL WAS EXPRESSLY AND UNEQUIVOCALLY TERMINATED BY THE ORDER OF THE
INTERSTATE COMMERCE COMMISSION IN 1942.  THAT ORDER CALLED FOR A
POSITIVE DISCONTINUANCE OF STATE CONTROL, COUPLED WITH A POSITIVE
VESTING OF JURISDICTION IN THE INTERSTATE COMMERCE COMMISSION OVER THIS
PARTICULAR TYPE OF INTERSTATE COMMERCE.  THE PROCEDURE THUS TAKEN TO
SUBSTITUTE FEDERAL FOR STATE REGULATION OF INTERSTATE COMMERCE WAS THE
VERY OPPOSITE OF A PROCEDURE PERMISSIVE OF JOINT OR DUPLICATING FEDERAL
AND STATE CONTROL.  IT IS DIFFICULT TO CONCEIVE OF A MORE DELIBERATE
AND OBVIOUS SUBSTITUTION OF ONE FOR THE OTHER.  THE AREA AVAILABLE FOR
SUCH SUBSTITUTION OF FEDERAL FOR STATE CONTROL WAS CLEARLY DEFINED AND
SET ASIDE IN SEC. 203(B)(9) AND THEN PUT INTO EFFECT BY ORDER OF THE
INTERSTATE COMMERCE COMMISSION.  EX PARTE NO. 35, 33 M.C.C. 69, 49
C.F.R. CUM. SUPP. SEC. 210.1.  FOR AN EXAMPLE OF A SUBSTITUTION OF
EXCLUSIVE FEDERAL REGULATION FOR EXCLUSIVE STATE REGULATION OF CERTAIN
INTERSTATE COMMERCE ACTIVITIES IN THE WAREHOUSING FIELD, SEE RICE V.
SANTA FE ELEVATOR CORP., 331 U.S. 218. 

THIS BRINGS US TO THE FINAL QUESTION OF STATUTORY INTERPRETATION. 
DID CONGRESS IMPLIEDLY CONSENT TO THIS ATTEMPTED SHARING OF ITS
ESTABLISHED JURISDICTION WITHIN THE NARROW LIMITS OF SEC. 203(B)(9)? 

                                 II. 

THE CONVICTION UNDER THE CALIFORNIA CODE WAS INVALID BECAUSE CONGRESS
HAD TAKEN EXCLUSIVE JURISDICTION OVER THAT OFFENSE AND HAD NOT
CONSENTED TO SHARE ITS JURISDICTION WITH CALIFORNIA. 

IT IS A CONTRADICTION IN TERMS TO SAY THAT A STATE, WITHOUT THE
CONSENT OF CONGRESS, MAY DUPLICATE OR SHARE IN THE EXCLUSIVE
JURISDICTION OF CONGRESS.  IF THE JURISDICTION OF CONGRESS HAS BECOME
EXCLUSIVE, THE STATE'S JURISDICTION MUST, BY HYPOTHESIS, BE DERIVED
THEREAFTER FROM CONGRESS OR CEASE TO EXIST.  IN THIS CASE THERE WAS NO
EXPRESS CONSENT BY CONGRESS TO SHARE WITH THE STATES THE FEDERALLY
PROTECTED EXCLUSIVE JURISDICTION OVER THIS TYPE OF TRANSACTION IN
INTERSTATE COMMERCE.  THE QUESTION REMAINS, HOWEVER, WHETHER, UNDER ALL
THE CIRCUMSTANCES, CONGRESS SHALL BE HELD TO HAVE IMPLIEDLY CONSENTED
TO SHARE ITS EXCLUSIVE JURISDICTION WITH CALIFORNIA.  THE TEXT OF THE
LEGISLATION AND THE COURSE OF EVENTS, WHICH LED THE FEDERAL GOVERNMENT
TO TAKE JURISDICTION, NOT ONLY DISCLOSE AN ABSENCE OF ANY BASIS FOR A
CLAIM THAT CONGRESS IMPLIEDLY CONSENTED TO THE CALIFORNIA LEGISLATION
BUT PRESENT OVERWHELMING EVIDENCE OF A DELIBERATE, CAREFUL AND
UNCONDITIONAL ASSUMPTION BY CONGRESS OF FEDERAL JURISDICTION,
CONSCIOUSLY EXCLUSIVE OF THE INADEQUATE STATE REGULATION THERETOFORE
FOUND TO EXIST.  SEE THE REFERENCE, SUPRA, TO ORIGINAL SEC. 202(B) AND
(C) OF THE ACT DEALING WITH THE JURISDICTION OF THE INTERSTATE COMMERCE
COMMISSION AND OF THE STATES.  FOR FULL TEXT, SEE SEC. 202(A) AND (B)
IN APPENDIX B (2), INFRA, P. 781.  IN ADDITION, WE SHALL NOW CONSIDER
IN DETAIL THE ACTION TAKEN UNDER THE INFORMED GUIDANCE OF THE
INTERSTATE COMMERCE COMMISSION IN ACCORDANCE WITH THE EXPRESS TERMS OF
SEC. 203(B). 

THE PRECISE FUNDAMENTAL ISSUE IS NOT THE IDENTITY, SIMILARITY,
DIVERSITY, OR EVEN REPUGNANCE, OF THE TWO STATUTES.  THE FUNDAMENTAL
ISSUE IS THAT OF THE PRESENCE OR ABSENCE OF CONGRESSIONAL CONSENT TO
THE SHARING OF ITS EXCLUSIVE JURISDICTION.  THE DEGREE OF IMMEDIATE OR
POTENTIAL CONFLICT BETWEEN THE STATUTES HAS A MATERIAL RELATION TO THE
ISSUE OF CONGRESSIONAL CONSENT.  CLEAR CONFLICT BETWEEN THE STATUTES
WOULD BE PRACTICALLY CONCLUSIVE AGAINST THE STATE.  THE LESS THE
CONFLICT, THE LESS OBVIOUS IS THE BASIS FOR THE OBJECTION OF CONGRESS
TO SHARING ITS JURISDICTION WITH THE STATE.  HOWEVER, EVEN A COMPLETE
ABSENCE OF CONFLICT, RESULTING IN A MERE DUPLICATION OF OFFENSES, WOULD
NOT REMOVE ALL BASIS FOR OBJECTION AND WOULD NOT NECESSARILY ESTABLISH
THE REQUIRED CONGRESSIONAL CONSENT.  FOR EXAMPLE, THE INHERENT
OBJECTIONABILITY OF THE DOUBLE PUNISHMENT OF AN OFFENDER FOR A SINGLE
ACT ALWAYS ARGUES AGAINST ITS IMPLIED AUTHORIZATION.  SIMILARLY, THE
DIFFICULTIES INHERENT IN DIVERSE LEGISLATIVE AND ENFORCEMENT POLICIES
ALWAYS ARGUE AGAINST THE INTRODUCTION OF NEW STATE OFFENSES, AS
DISTINGUISHED FROM STATE COOPERATION IN PROSECUTING EXISTING FEDERAL
OFFENSES.  HERE THERE WAS SUBSTANTIAL POTENTIAL CONFLICT BETWEEN THE
PRESCRIBED STATE PENALTIES AND THE FEDERAL PENALTIES, ALTHOUGH THE
PROHIBITED ACTS WERE THE SAME.  LIKEWISE, THERE WAS A SUBSTANTIAL
DIFFERENCE BETWEEN THE TWO STATUTES IN THE EXCEPTIONS TO THEIR
APPLICATION AND IN SUCH RELATED PROVISIONS AS THOSE FOR THE LICENSING
OF THE TRAVEL BUREAUS AS DISTINGUISHED FROM THE CARRIERS.  FURTHERMORE,
SEC. 203(B) EXPRESSLY LEFT IT TO THE INTERSTATE COMMERCE COMMISSION TO
DETERMINE THE EXTENT, IF ANY, TO WHICH THE FEDERAL JURISDICTION SHOULD
BE APPLIED. 

IN THE INSTANT CASE THE MOST IMPRESSIVE MATERIAL, EMPHASIZING THE
UNWILLINGNESS OF CONGRESS TO SHARE ITS EXCLUSIVE CONTROL WITH A CONTROL
THROUGH STATE LEGISLATION, IS FOUND IN THE LEGISLATIVE, ADMINISTRATIVE
AND JUDICIAL PROCEEDINGS WHICH LED TO THE TAKING OF COMPLETE
JURISDICTION BY CONGRESS.  WHEN FEDERAL JURISDICTION WAS THUS TAKEN, IN
1942, IT WAS CLEAR TO CONGRESS THAT THERE EXISTED HIGHLY UNSATISFACTORY
STATE REGULATION OF THE INTERSTATE TRANSACTIONS IN QUESTION.  THERE IS
NO EVIDENCE OF A SUBSEQUENT CHANGE IN THE ATTITUDE OF CONGRESS.  THE
COURSE OF EVENTS TELLS THE STORY.  IT SUGGESTS NO CONSENT BY CONGRESS
TO A DUPLICATION OF FEDERAL AND STATE CONTROL.  ON THE OTHER HAND, IT
DEMONSTRATES THE EXISTENCE OF AMPLE REASONS FOR TAKING AND RETAINING
EXCLUSIVE FEDERAL JURISDICTION OVER THIS KIND OF INTERSTATE
TRANSPORTATION.  IT IS AN EXAMPLE OF THE EFFECTIVE INTEGRATION OF OUR
FEDERAL AND STATE JURISDICTIONS WHEN EACH IS GIVEN EXCLUSIVE CONTROL
OVER DESIGNATED ACTIVITIES, RATHER THAN SIMULTANEOUS, DUAL AND
CONFLICTING CONTROL OVER THE SAME ACTIVITIES.    1.  JUNE 5, 1931.  - A
CALIFORNIA STATUTE WAS APPROVED DEFINING MOTOR CARRIER TRANSPORTATION
AGENTS (COMPARABLE TO TRAVEL BUREAUS ARRANGING SHARE-THE-EXPENSE
TRIPS), AND PROVIDING FOR THE STATE'S REGULATION, SUPERVISION AND
LICENSING OF SUCH AGENTS.  THIS ACT REFERRED EXPRESSLY TO
TRANSPORTATION BETWEEN POINTS WITHIN CALIFORNIA AND TO TRANSPORTATION
TO THE BORDER OF THAT STATE WHEN ONE OF THE POINTS TO BE REACHED WAS
OUTSIDE THE STATE.  IT EXPRESSLY PERMITTED THESE STATE-LICENSED
TRANSPORTATION AGENCIES TO ARRANGE FOR MOTOR TRANSPORTATION BY A MOTOR
CARRIER NOT HOLDING A VALID CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY ISSUED BY THE RAILROAD COMMISSION OF CALIFORNIA.  IN
SUBSTANCE, THE ACT THUS RECOGNIZED AND LICENSED TRAVEL BUREAUS
ARRANGING FOR SHARE-THE-EXPENSE INTERSTATE, AS WELL AS INTRASTATE,
MOTOR TRIPS BY UNLICENSED CARRIERS.  1931 CAL. STAT., C. 638, SEC. 1,
P. 1362, ET SEQ. 

2.  MAY 15, 1933.  - ANOTHER CALIFORNIA STATUTE REPEALED THE ACT OF
JUNE 5, 1931.  THE NEW STATUTE DECLARED IT TO BE THE POLICY OF
CALIFORNIA TO REGULATE AND CONTROL MOTOR CARRIER TRANSPORTATION AGENTS
ACTING AS "INTERMEDIARIES BETWEEN THE PUBLIC AND THOSE MOTOR CARRIERS
OF PASSENGERS OPERATING, AS COMMON CARRIERS OR OTHERWISE, OVER THE
PUBLIC HIGHWAYS OF THE STATE, FOR COMPENSATION, THAT ARE NOT REQUIRED
BY LAW TO OBTAIN, OR THAT HAVE NOT OBTAINED, A CERTIFICATE FROM THE
RAILROAD COMMISSION OF THE STATE OF CALIFORNIA  ...  "  1933 CAL.
STAT., C. 390, SEC. 1, P. 1012.  THIS STATUTE, LIKE THAT OF 1931,
RECOGNIZED AND PRESCRIBED LICENSES FOR THE TRAVEL BUREAUS DEALING IN
SHARE-THE-EXPENSE INTERSTATE, AS WELL AS INTRASTATE, MOTOR TRIPS BY
UNLICENSED CARRIERS.  THIS STATUTE AND THIS DECLARATION REMAINED IN
EFFECT UNTIL 1947.  IT WAS DURING THIS SAME TIME THAT THE INTERSTATE
COMMERCE COMMISSION, AFTER INVESTIGATION, DECLARED THAT IT FOUND THAT
SUCH OPERATIONS, AT LEAST AS APPLIED TO INTERSTATE COMMERCE, WERE
CONTRARY TO PUBLIC POLICY.  THE COMMISSION'S EXTENDED INVESTIGATION
RESULTED, IN 1942, IN THE DELIBERATE APPLICATION OF THE INTERSTATE
COMMERCE ACT TO THESE INTERSTATE OPERATIONS UNDER EXPRESS AUTHORITY OF
CONGRESS.  THE FEDERAL LAW THEREUPON EXPRESSLY PROHIBITED SUCH
TRANSPORTATION BY UNLICENSED CARRIERS, IN INTERSTATE COMMERCE, AND ALSO
PROHIBITED TRAVEL BUREAUS OR BROKERS FROM SELLING OR ARRANGING SUCH
UNLICENSED TRIPS IN INTERSTATE COMMERCE.  THE CONFLICT IN POLICY THUS
BECAME CLEAR, AT LEAST BY 1942. 

THE RELATION OF THE 1933 CALIFORNIA ACT TO INTERSTATE COMMERCE AND
ITS CONFLICT WITH THE FEDERAL POLICY STATED BY THE INTERSTATE COMMERCE
COMMISSION IS EMPHASIZED BY THE FOREGOING DECLARATION OF STATE POLICY
WHICH REMAINED IN THE STATE ACT FROM 1933 UNTIL 1941:  "UNTIL SUCH TIME
AS CONGRESS OF THE UNITED STATES SHALL ACT, THE PUBLIC WELFARE REQUIRES
SUCH REGULATION AND CONTROL OF SUCH INTERMEDIARIES BETWEEN THE PUBLIC
AND INTERSTATE MOTOR CARRIERS AS WELL AS BETWEEN THE PUBLIC AND
INTRASTATE MOTOR CARRIERS."  ID. AT P. 1012. 

THE CALIFORNIA ACT ALSO INCLUDED, UNTIL 1941, THE FOLLOWING:  "THE
PROVISION OF THIS ACT SHALL APPLY REGARDLESS OF WHETHER SUCH
TRANSPORTATION SO SOLD, OR OFFERED TO BE SOLD, IS INTERSTATE OR
INTRASTATE."  ID. AT P. 1013.  IN GENERAL, THE ACT AMPLIFIED THE PLAN
OF THE 1931 ACT.  IT REQUIRED THE BONDING AND LICENSING OF MOTOR
CARRIER TRANSPORTATION AGENTS (OR TRAVEL BUREAUS) ARRANGING FOR
UNLICENSED INTERSTATE, AS WELL AS INTRASTATE, MOTOR CARRIER
TRANSPORTATION.  BOTH STATE ACTS CONTAINED A SECTION PROVIDING
EXPLICITLY FOR THE SEPARABILITY OF ANY SECTION, SUBSECTION, SENTENCE,
CLAUSE OR PHRASE WHICH MIGHT BE HELD UNCONSTITUTIONAL. 

3.  AUGUST 9, 1935.  - FOLLOWING AN EXTENDED SURVEY OF THE RAPIDLY
INCREASING VOLUME OF INTERSTATE MOTOR TRANSPORTATION, THE MOTOR CARRIER
ACT, 1935, WAS ENACTED BY CONGRESS AS PART II OF THE INTERSTATE
COMMERCE ACT.  FOR THE PURPOSES OF THIS CASE, THE MOST IMPORTANT
FEATURE OF THIS ACT WAS ITS PROVISION FOR THE PARTIAL AND CONDITIONAL
EXEMPTION FROM ITS OPERATION OF THE KIND OF MOTOR CARRIER
TRANSPORTATION HERE INVOLVED.  SECTION 203(B)(9) EXCLUDED FROM ITS
OPERATION, EXCEPT FOR SAFETY PURPOSES, "THE CASUAL, OCCASIONAL, OR
RECIPROCAL TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OR
FOREIGN COMMERCE FOR COMPENSATION BY ANY PERSON NOT ENGAGED IN
TRANSPORTATION BY MOTOR VEHICLE AS A REGULAR OCCUPATION OR BUSINESS." 
49 STAT. 546.  THIS EXCLUSION OF CASUAL AND OCCASIONAL MOTOR CARRIERS
WAS ONLY A CONDITIONAL EXEMPTION, EXPRESSIVE OF FEDERAL CONCERN OVER
THE APPARENT INADEQUACY OF THE STATE CONTROL OVER CASUAL AND OCCASIONAL
TRANSPORTATION INVOLVING INTERSTATE TRIPS.  THE CONDITION APPLIED TO
THE EXCLUSION WAS - 

"(B)  NOTHING IN THIS PART (PART II OF THE INTERSTATE COMMERCE ACT),
...  SHALL BE CONSTRUED TO INCLUDE  ...  (CLAUSES (1) TO (7) INCL.);
NOR, UNLESS AND TO THE EXTENT THAT THE (INTERSTATE COMMERCE) COMMISSION
SHALL FROM TIME TO TIME FIND THAT SUCH APPLICATION IS NECESSARY TO
CARRY OUT THE POLICY OF CONGRESS ENUNCIATED IN SECTION 202,  FN15
SHALL THE PROVISIONS OF THIS PART, EXCEPT THE PROVISIONS OF SECTION 204
RELATIVE TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES
AND SAFETY OF OPERATION OR STANDARDS OF EQUIPMENT APPLY TO:  (8)  ...
OR (9)  ...  (CASUAL, OCCASIONAL OR RECIPROCAL TRANSPORTATION AS QUOTED
ABOVE)."  49 STAT. 545-546. 

THE CLOSE RELATION BETWEEN THE COMMISSION, THE POLICY OF CONGRESS
ENUNCIATED IN THE ACT AND THE FEDERAL CONTROL OVER THE CASUAL AND
OCCASIONAL MOTOR CARRIER TRANSPORTATION OF PASSENGERS HAS BEEN
EMPHASIZED THUS FROM THE INCEPTION OF THE MOTOR CARRIER ACT, 1935, TO
THE PRESENT. 

THIS PROVISION CONDITIONALLY EXEMPTED FROM FEDERAL CONTROL NOT ONLY
THE CASUAL AND OCCASIONAL TRANSPORTATION SERVICE ITSELF BUT, BY
RENDERING SUCH TRANSPORTATION NOT "SUBJECT TO" PART II OF THE
INTERSTATE COMMERCE ACT, IT ALSO CONDITIONALLY EXEMPTED, FROM THE
FEDERAL BROKERAGE LICENSE REQUIREMENTS, THE TRAVEL BUREAUS WHICH SOLD
OR ARRANGED FOR SUCH CASUAL AND OCCASIONAL UNLICENSED AND UNREGULATED
INTERSTATE TRANSPORTATION.  FN16 

4.  JUNE 14, 1938.  - FRANK BROKER APPLICATION, 8 M.C.C. C.C. 15. 
DIVISION 5 OF THE INTERSTATE COMMERCE COMMISSION MADE AN IMPORTANT
RULING ON THIS APPLICATION.  FEBRUARY 11, 1936, THE APPLICANT, DOING
BUSINESS AS FRANK'S TRAVEL BUREAU, OF DALLAS, TEXAS, FILED AN
APPLICATION UNDER SEC. 211 OF THE MOTOR CARRIER ACT, 1935, FOR A
BROKER'S LICENSE FOR THE PURPOSE OF ARRANGING MOTOR TRANSPORTATION OF
PERSONS IN INTERSTATE COMMERCE.  FOR FIVE YEARS THE APPLICANT HAD
OPERATED A "TRAVEL BUREAU" IN DALLAS, TEXAS.  THE NATURE OF HIS
BUSINESS WAS TO BRING TOGETHER PERSONS DESIRING TO TRAVEL FROM DALLAS
TO ANY POINT AS FAR WEST AS LOS ANGELES, CALIFORNIA, OR AS FAR EAST AS
NEW YORK, NEW YORK.  THE APPLICANT ALSO SOLD TICKETS, ON A COMMISSION,
FOR CERTAIN COMPETING LICENSED MOTOR CARRIERS.  THE COMMISSION HELD
THAT IT WAS NECESSARY FOR THE APPLICANT TO OBTAIN A BROKER'S LICENSE
UNDER THE FEDERAL ACT IN ORDER TO CONTINUE TO SELL TICKETS FOR THE
LICENSED CARRIERS.  THE REST OF THE APPLICANT'S INTERSTATE BUSINESS,
HOWEVER, WAS THAT OF A TYPICAL TRAVEL BUREAU, ARRANGING FOR
TRANSPORTATION BY UNLICENSED CARRIERS.  THE COMMISSION'S OPINION
DISCUSSED THIS ACTIVITY AT LENGTH AND REACHED A CONCLUSION THAT THROWS
LIGHT ON THE FUTURE POLICY OF THE COMMISSION AND ON THE FUTURE COURSE
OF THE FEDERAL AND STATE LEGISLATION.  IT DEMONSTRATES THAT THE
COMMISSION, WHEN TAKING ITS STAND AGAINST THIS TYPE OF INTERSTATE
TRANSPORTATION, DID SO, AT LEAST IN CALIFORNIA, IN THE FACE OF A
CONTRARY STATE POLICY WHICH THEN FAVORED THE CONTINUANCE, RATHER THAN
THE PROHIBITION, OF SUCH OPERATIONS.  THE COMMISSION FINALLY ISSUED THE
BROKER'S LICENSE BUT ONLY UPON THE EXPRESS CONDITION THAT THE APPLICANT
WOULD DISCONTINUE HIS TRAVEL BUREAU OPERATIONS IN ARRANGING FOR THE
ABOVE-DESCRIBED UNLICENSED INTERSTATE TRANSPORTATION WHICH THE
COMMISSION FOUND TO BE NOT IN THE PUBLIC INTEREST.  IT SAID (PP. 19
20): 

"THE RECORD CONVINCES US THAT APPLICANT'S METHOD OF DOING THAT
PORTION OF HIS BUSINESS, NAMELY THE BRINGING TOGETHER OF PROSPECTIVE
PASSENGERS AND PRIVATE INDIVIDUALS, NOT MOTOR CARRIERS, IN ORDER THAT
THEY MAY ENTER INTO AN ARRANGEMENT WHEREBY THE PASSENGER FOR
COMPENSATION IS TRANSPORTED IN INTERSTATE OR FOREIGN COMMERCE BY THE
PRIVATE INDIVIDUAL, IS NOT IN THE PUBLIC INTEREST.  APPLICANT'S LIMITED
KNOWLEDGE OF THE PASSENGER AND OWNER-DRIVER, AND HIS INABILITY TO
SECURE AUTHORITATIVE INFORMATION WITH RESPECT TO EACH, OF NECESSITY
MAKES IT IMPOSSIBLE FOR HIM TO SAFEGUARD THE RIGHTS OF EITHER.  AS A
RESULT OF THIS PRACTICE AN UNSCRUPULOUS PASSENGER OR OWNER-DRIVER IS
GIVEN AN OPPORTUNITY TO DEFRAUD HONEST CITIZENS.  UNDER SECTION
204(A)(4) OF THE ACT, WE ARE AUTHORIZED, AMONG OTHER THINGS, TO
ESTABLISH REASONABLE REQUIREMENTS WITH RESPECT TO THE PRACTICES OF A
BROKER.  WE ARE OF THE OPINION THAT IT IS REASONABLE TO REQUIRE
APPLICANT TO DISCONTINUE HIS PRACTICE OF SECURING PRIVATE INDIVIDUALS
NOT ENGAGED IN BUSINESS AS CARRIERS, TO TRANSPORT PASSENGERS FOR
COMPENSATION IN INTERSTATE OR FOREIGN COMMERCE, AND THE LICENSE GRANTED
HEREIN WILL BE SUBJECT TO THIS CONDITION AND LIMITATION. 

"WE FIND THAT APPLICANT IS FIT, WILLING, AND ABLE TO PERFORM THE
BROKERAGE SERVICE PROPOSED AND TO CONFORM TO THE PROVISIONS OF THE ACT
AND OUR REQUIREMENTS, RULES, AND REGULATIONS THEREUNDER; THAT THE
PROPOSED SERVICE, SUBJECT TO THE CONDITION AND LIMITATION STATED IN THE
NEXT PRECEDING PARAGRAPH, IS CONSISTENT WITH THE PUBLIC INTEREST AND
THE POLICY DECLARED IN SECTION 202(A)  FN17 OF THE ACT; AND THAT A
BROKERAGE LICENSE SHOULD BE ISSUED TO HIM." 

5.  FEBRUARY 6, 1939.  - MICHAUX BROKER APPLICATION, 11 M.C.C. 317. 
DIVISION 5 OF THE INTERSTATE COMMERCE COMMISSION DENIED THIS
APPLICATION, FILED IN JUNE, 1936, FOR A BROKER'S LICENSE UNDER THE
FEDERAL ACT.  THE APPLICANT SOUGHT TO CARRY ON AN INTERSTATE TRAVEL
BUREAU OPERATION IN CHICAGO.  THE COMMISSION FOUND THAT, IF THE
OPERATION WERE STRICTLY LIMITED TO ARRANGEMENTS FOR INTERSTATE
TRANSPORTATION BY CASUAL OR OCCASIONAL CARRIERS, "THE TRANSPORTATION
WOULD NOT BE SUBJECT TO THE ACT."  (ID. AT P. 318.)  THE APPLICANT,
ACCORDINGLY, WOULD NOT REQUIRE A BROKER'S LICENSE FOR THAT ACTIVITY. 
THE COMMISSION, HOWEVER, SAID (P. 318):  "THE EXTENT OF APPLICANT'S
PAST OPERATIONS GIVES RISE TO DOUBT THAT SUCH A VOLUME OF BUSINESS
COULD BE ACHIEVED WITHOUT THE EMPLOYMENT OF SOME PERSONS REGULARLY
ENGAGED IN TRANSPORTATION OF PASSENGERS BY MOTOR VEHICLE AS AN
OCCUPATION."  HE DISCLAIMED INTENTION TO ENGAGE IN SUCH OPERATIONS IN
THE FUTURE.  THE COMMISSION THEREUPON DENIED HIS REQUEST FOR A BROKER'S
LICENSE FOR THOSE OPERATIONS BECAUSE NO SUCH LICENSE WAS REQUIRED FOR
THEM.  THE COMMISSION WARNED HIM OF THE PENALTIES FOR UNLAWFUL
OPERATIONS AND DENIED HIS APPLICATION ON THE GROUND THAT HE HAD "NOT
SHOWN THAT HIS OPERATION AS BROKER WILL BE CONSISTENT WITH THE PUBLIC
INTEREST OR WITH THE POLICY DECLARED IN SECTION 202(A)  FN18  OF THE
ACT,  ...  "  (P. 318.)  HIS OPERATIONS AS THUS DESCRIBED AND CONDEMNED
WERE OF A TYPE COMPARABLE TO THOSE PREVIOUSLY CONDEMNED BY THE
COMMISSION IN ITS DECISION ON THE FRANK BROKER APPLICATION, SUPRA, BUT
APPROVED IN CALIFORNIA'S STATUTORY DECLARATION OF A CONTRARY POLICY
THEN IN EFFECT. 

6.  MAY 1, 1940, AND MAY 17, 1940.  FN19  - THE INTERSTATE COMMERCE
COMMISSION ENTERED UPON ITS IMPORTANT INVESTIGATIONS KNOWN,
RESPECTIVELY, AS EX PARTE NO. MC-35, 33 M.C.C. 69, AND EX PARTE NO. 36,
32 M.C.C. 267.  THE FIRST WAS MADE - 

"INTO THE PRACTICES WITH RESPECT TO THE CASUAL, OCCASIONAL, OR
RECIPROCAL TRANSPORTATION OF PASSENGERS IN INTERSTATE OR FOREIGN
COMMERCE FOR COMPENSATION, FOR THE PURPOSE OF DETERMINING WHETHER THE
EXEMPTION OF SUCH TRANSPORTATION AS PROVIDED IN SECTION 203(B)(9) OF
THE INTERSTATE COMMERCE ACT SHOULD BE REMOVED TO THE EXTENT OF MAKING
APPLICABLE ALL PROVISIONS OF PART II OF THE ACT TO SUCH TRANSPORTATION
...  (WHEN SOLD UNDER TRAVEL BUREAU PRACTICES)."  EX PARTE NO. MC-35,
33 M.C.C. 69, 70. 

THE SECOND WAS AN INVESTIGATION INTO THE SUBJECT OF RULES AND
REGULATIONS TO GOVERN BROKERS OF PASSENGER TRANSPORTATION SUBJECT TO
PART II OF THE INTERSTATE COMMERCE ACT.  THE FIRST INVESTIGATION LATER
DISCLOSED, AMONG OTHER THINGS, THAT THE - 

"BOARD OF PUBLIC UTILITIES AND TRANSPORTATION OF THE CITY OF LOS
ANGELES DURING THE LATTER PART OF 1939 AND THE EARLY PART OF 1940
RECEIVED AN AVERAGE OF 8 COMPLAINTS DAILY INVOLVING TRAVEL BUREAUS.  AT
OTHER CITIES, ABANDONED PASSENGERS, WHO WERE USUALLY FOUND TO BE
WITHOUT FUNDS, WERE ASSISTED BY PRIVATE OR PUBLIC CHARITY.  IN GENERAL,
THE TESTIMONY OF THE WITNESSES FOR SUCH ORGANIZATIONS AS BETTER
BUSINESS BUREAUS, AND TRAVELERS' AID SOCIETIES, BASED UPON A KNOWLEDGE
ACQUIRED IN THE PERFORMANCE OF THEIR DUTIES, CORROBORATES THAT OF
PASSENGERS WHO TESTIFIED WITH REGARD TO THE DIFFICULTIES THEY
ENCOUNTERED WHILE TRAVELING BY MEANS OF TRANSPORTATION ARRANGED THROUGH
TRAVEL BUREAUS. 

"THE LAW-ENFORCEMENT OFFICIALS AND REPRESENTATIVES OF ELEEMOSYNARY
AND QUASIPUBLIC ORGANIZATIONS WHO TESTIFIED FAVOR THE REMOVAL OF THE
EXEMPTION IN SECTION 203(B)(9) OF THE CASUAL, OCCASIONAL, AND
RECIPROCAL TRANSPORTATION OF PASSENGERS FOR COMPENSATION, WHEN SUCH
TRANSPORTATION IS ARRANGED THROUGH TRAVEL BUREAUS, AND BELIEVE THAT
REGULATION BY THIS COMMISSION OF SUCH TRANSPORTATION IS NECESSARY. 
THEIR OPINIONS ARE BASED PRINCIPALLY ON THE GROUNDS THAT THIS TYPE OF
TRANSPORTATION AS NOW CONDUCTED IS THE CAUSE OF INCONVENIENCE AND
HARDSHIP TO THE TRAVELING PUBLIC USING SUCH TRANSPORTATION, FOR WHICH
ADEQUATE REDRESS CANNOT BE OBTAINED, THAT NUMEROUS VIOLATIONS OF STATE
AND LOCAL LAWS AND REGULATIONS OCCUR IN CONNECTION THEREWITH, THAT
STATE AND LOCAL OFFICIALS ARE UNABLE PROPERLY TO REGULATE SUCH
OPERATIONS BECAUSE OF THE FACT THAT A LARGE PROPORTION OF THE
TRANSPORTATION IS INTERSTATE, AND THAT, BECAUSE OF THE PRESENT
PRACTICES IN CONNECTION WITH SUCH TRANSPORTATION, AN UNREASONABLE
BURDEN IS PLACED UPON PRIVATE AND PUBLIC CHARITIES IN CARING FOR
PASSENGERS ABANDONED OR INJURED WHILE TRAVELING BY THIS MEANS OF
TRANSPORTATION."  ID. AT PP. 75-76.    7.  SEPTEMBER 18, 1940.   -
AMENDMENTS WERE ENACTED TO PART II, INTERSTATE COMMERCE ACT.  ALTHOUGH
THE FINAL REPORT IN EX PARTE NO. MC-35 WAS NOT MADE UNTIL 1942, SOME OF
THE CONDITIONS REFERRED TO ABOVE WERE REFLECTED IN AN AMENDMENT MADE TO
SEC. 203(B)(9) IN 1940.  FN20  CONGRESS STILL LEFT THE CASUAL
TRANSPORTATION OPERATIONS GENERALLY UNLICENSED AND UNREGULATED BY THE
COMMISSION.  YET, THROUGH THIS 1940 AMENDMENT, CONGRESS DID EXPRESSLY
PROVIDE THAT, AT LEAST WHEN THE SALES OR ARRANGEMENTS FOR THE CASUAL OR
OCCASIONAL INTERSTATE TRANSPORTATION WERE MADE BY A LICENSED BROKER,
THEN THOSE SALES AND ARRANGEMENTS WERE TO BE CONSIDERED "SUBJECT TO"
THE ACT.  THE EFFECT OF THIS WAS TO PROHIBIT BROKERS LICENSED UNDER THE
INTERSTATE COMMERCE COMMISSION FROM ALSO CONDUCTING AN UNLICENSED
TRAVEL BUREAU BUSINESS.  THIS WAS, THEREFORE, AN EXPRESS CONGRESSIONAL
RECOGNITION OF THE POLICY ANNOUNCED BY THE COMMISSION IN THE FRANK
BROKER APPLICATION, SUPRA. 

IN SUBSTANCE THIS AMOUNTED TO A CONGRESSIONAL ASSUMPTION OF
JURISDICTION, IN 1940, IN CONFLICT WITH A PART OF THE EXISTING
CALIFORNIA POLICY WHICH APPROVED AND ATTEMPTED TO REGULATE THESE
TRANSACTIONS NOT ONLY IN INTRASTATE BUT ALSO IN INTERSTATE
TRANSACTIONS.  THIS ACTION OF CONGRESS, CONFORMING TO THE COMMISSION'S
DECLARATION OF POLICY IN THE BROKER APPLICATION CASES, SUBSTITUTED THIS
FEDERAL PROHIBITION IN PLACE OF STATE REGULATION OF THESE INTERSTATE
ACTIVITIES.  THIS ATTITUDE WAS STRONGLY REENFORCED IN 1942 AND THERE
HAS BEEN NO CONTRARY FEDERAL ACTION AT ANY TIME.  SEE ALSO, COPES
BROKER APPLICATION, 27 M.C.C. 153, 155-156, 169-172, DECIDED BY THE
FULL COMMISSION, DECEMBER 20, 1940. 

8.  APRIL 28, 1941.  - CALIFORNIA V. THOMPSON, 313 U.S. 109.  THIS
CASE OVERRULED DI SANTO V. PENNSYLVANIA, 273 U.S. 34.  IT HELD THAT THE
1933 CALIFORNIA ACT, AT LEAST PRIOR TO 1940, WAS VALID, BUT THE COURT
MADE IT CLEAR THAT IT DID SO BECAUSE CONGRESS HAD NOT THEN TAKEN
JURISDICTION OVER TRAVEL BUREAU OR BROKERAGE OPERATIONS IN SELLING OR
ARRANGING FOR CASUAL OR OCCASIONAL INTERSTATE MOTOR CARRIER
TRANSPORTATION OF PASSENGERS.  THE OPINION OF THE COURT IS FULL OF
RESERVATIONS AS TO WHAT MIGHT BE THE CONTRARY EFFECT OF THE TAKING OF
FEDERAL JURISDICTION OVER THESE TRANSACTIONS.  FOR EXAMPLE, THE COURT
SAID: 

"CONGRESS HAS NOT UNDERTAKEN TO REGULATE THE ACTS FOR WHICH
RESPONDENT WAS CONVICTED OR THE INTERSTATE TRANSPORTATION TO WHICH THEY
RELATED.  ...  HENCE WE ARE CONCERNED HERE ONLY WITH THE CONSTITUTIONAL
AUTHORITY OF THE STATE TO REGULATE THOSE WHO, WITHIN THE STATE, AID OR
PARTICIPATE IN A FORM OF INTERSTATE COMMERCE OVER WHICH CONGRESS HAS
NOT UNDERTAKEN TO EXERCISE ITS REGULATORY POWER."  ID. AT P. 112, AND
SEE PP. 114 AND 115. 

9.  JUNE 2, 1941.  - THE 1933 CALIFORNIA ACT, WHICH HAD BEEN SLIGHTLY
REVISED IN 1935, WAS SUBSTANTIALLY AMENDED.  THE AMENDMENT STRUCK OUT
THE EXPRESS APPLICATION OF THE ACT TO INTERSTATE AS WELL AS INTRASTATE
TRANSPORTATION.  WHILE THE ACT EVIDENTLY STILL APPLIED, THROUGH ITS
GENERAL LANGUAGE, TO BOTH TYPES OF TRANSPORTATION, THE OMISSION
REFLECTED THE STATE'S ANTICIPATION OF THE COMING FEDERAL CONTROL OVER
THE INTERSTATE TRANSACTIONS.  THIS ANTICIPATION WAS EXPRESSLY STATED IN
AN AMENDMENT TO SEC. 2 LIMITING THE STATE'S REGULATION OF THESE
INTERSTATE TRANSACTIONS TO A PERIOD IN "THE ABSENCE OF ACTION ON THE
PART OF CONGRESS OR THE INTERSTATE COMMERCE COMMISSION REGULATING OR
REQUIRING LICENSES OF MOTOR CARRIER TRANSPORTATION AGENTS ACTING AS
SUCH FOR MOTOR CARRIERS CARRYING PASSENGERS IN INTERSTATE COMMERCE  ...
"  FN21  THIS DEMONSTRATED CALIFORNIA'S RECOGNITION OF THE LACK OF THE
NECESSITY FOR, OR EVEN THE LACK OF PROPRIETY IN ITS ATTEMPTING TO
EXERCISE, STATE CONTROL IN THE FACE OF FEDERAL CONTROL.  THIS PROVISION
WAS LATER HELD BY THE SUPERIOR COURT OF CALIFORNIA TO CUT OFF
COMPLETELY AND VOLUNTARILY THE STATE CONTROL AFTER THE ANTICIPATED
FEDERAL ACTION WAS TAKEN IN 1942.  PEOPLE V. VAN HORN, 76 CAL. APP.2D
753, 174 P.2D 12. 

10.  MARCH 21, 1942.  - THIS IS THE MOST SIGNIFICANT DATE IN THESE
PROCEEDINGS.  IT MARKED THE ISSUANCE OF THE ORDER OF THE INTERSTATE
COMMERCE COMMISSION, EFFECTIVE MAY 15, 1942, IN EX PARTE NO. MC-35, 33
M.C.C. 69, 49 C.F.R. CUM. SUPP. SEC. 210.1.  FN22  THAT ORDER EXPRESSLY
REMOVED THE ABOVE-MENTIONED EXEMPTION WHICH THERETOFORE HAD EXCLUDED
FROM REGULATION, UNDER PART II OF THE INTERSTATE COMMERCE ACT, THE
CASUAL, OCCASIONAL AND RECIPROCAL TRANSPORTATION OF PASSENGERS BY MOTOR
VEHICLE IN INTERSTATE COMMERCE FOR COMPENSATION AS PROVIDED IN SEC.
203(B)(9).  THIS ORDER REMOVED THAT EXEMPTION "TO THE EXTENT NECESSARY
TO MAKE APPLICABLE ALL PROVISIONS OF PART II OF THE ACT TO SUCH
TRANSPORTATION WHEN SOLD  ...  OR ARRANGED FOR, BY ANY PERSON WHO
SELLS,  ...  OR ARRANGES FOR SUCH TRANSPORTATION FOR COMPENSATION OR AS
A REGULAR OCCUPATION OR BUSINESS."  FN23 IT THUS EXPRESSLY BROUGHT
UNDER FEDERAL CONTROL THE INTERSTATE PASSENGER TRANSPORTATION ARRANGED
FOR THROUGH TRAVEL BUREAUS AND IT ALSO BROUGHT THOSE TRAVEL BUREAUS
THEMSELVES UNDER FEDERAL CONTROL.  IT REQUIRED A LICENSE OR PERMIT TO
BE SECURED FOR THE TRIP AND A BROKER'S LICENSE TO BE SECURED BY THE
BUREAU.  SECS. 203(B)(9) AND 211(A), 49 STAT. 546, 554, 54 STAT. 921,
49 U.S.C. SECS. 303(B)(9) AND 311(A).  THE FEDERAL CONTROL WAS
COEXTENSIVE WITH THE PROBLEM AND CAREFULLY ADJUSTED TO IT.  THERE WAS
NO NEED, DESIRE OR WILLINGNESS EXPRESSED TO ACCEPT DUPLICATE PARALLEL
STATE CONTROL OF THESE INTERSTATE OPERATIONS.  ON THE OTHER HAND, IT
WAS EXPRESSLY STATED THAT IT WAS THE INABILITY OF THE STATE AND LOCAL
OFFICIALS PROPERLY TO REGULATE SUCH INTERSTATE OPERATIONS THAT
CONVINCED THE COMMISSION OF THE NECESSITY OF FEDERAL CONTROL.  EX PARTE
NO. MC-35, SUPRA, P. 76. 

THE INTENT OF CONGRESS AND OF ITS SPECIALLY QUALIFIED INTERSTATE
COMMERCE COMMISSION TO TAKE COMPLETE CONTROL OF THESE INTERSTATE
OPERATIONS AND TO SUPERSEDE THE EXISTING STATE REGULATION HAD BEEN
INDICATED IN THE AMENDMENT TO SEC. 203(B)(9), MADE SEPTEMBER 18, 1940. 
IT WAS DEMONSTRATED BEYOND QUESTION IN THE COMMISSION'S REPORT IN EX
PARTE NO. MC-35, SUPRA.  THAT REPORT SUMMARIZED TWO YEARS OF NATIONWIDE
INVESTIGATIONS.  IT DEALT WITH THE TRAVEL BUREAU PROBLEM ESPECIALLY
UPON AN INTERSTATE BASIS.  IT MADE SPECIFIC REFERENCE TO INTERSTATE
OPERATIONS BETWEEN CALIFORNIA AND TEXAS.  TYPICAL EXCERPTS FROM THE
REPORT HAVE BEEN QUOTED SUPRA, PP. 765-767.  BEARING FURTHER UPON THE
UNSUITABILITY OF STATE AND LOCAL CONTROL OVER THE INTERSTATE FEATURES
OF THIS KIND OF TRANSPORTATION AND UPON THE NEED FOR A MORE UNIFORM AND
COMPLETE FEDERAL CONTROL, THE REPORT SAID: 

"THERE CAN BE LITTLE DOUBT THAT THE REMOVAL OF THE EXEMPTION MAY IN
SOME INSTANCES WORK A HARDSHIP UPON CASUAL, OCCASIONAL, OR RECIPROCAL
TRANSPORTERS OF PASSENGERS AND UPON PERSONS TRAVELING AS PASSENGERS BY
THAT MEANS OF TRANSPORTATION, AS WELL AS UPON TRAVEL BUREAUS.  ON THE
OTHER HAND, SUBSTANTIAL BENEFITS TO THE GENERAL PUBLIC WOULD RESULT
FROM THE PROPER REGULATION OF SUCH TRANSPORTATION.  IF IT WERE PROPERLY
REGULATED, PASSENGERS USING SUCH TRANSPORTATION WOULD NOT ENCOUNTER
MANY OF THE DIFFICULTIES ARISING AT PRESENT.  IN THEIR TESTIMONY,
BRIEFS, AND EXCEPTIONS, SEVERAL TRAVEL BUREAUS ADMIT THAT REASONABLE
RULES AND REGULATIONS GOVERNING THE OPERATIONS OF TRAVEL BUREAUS IN
THEIR APPROPRIATE AND LEGITIMATE FIELD ARE DESIRABLE AND NECESSARY. 
CASUAL, OCCASIONAL, AND RECIPROCAL TRANSPORTATION OF PASSENGERS CANNOT
BE REGULATED UNLESS THE EXEMPTION IN SECTION 203(B)(9) IS AT LEAST
PARTIALLY REMOVED.  THE ACT DOES NOT GIVE US POWER, WITHOUT THE REMOVAL
OF THE EXEMPTION REFERRED TO, TO PRESCRIBE REASONABLE RULES AND
REGULATIONS GOVERNING, OR TO REGULATE IN ANY OTHER MANNER THE
OPERATIONS OF, TRAVEL BUREAUS.  PROPER REGULATION OF TRAVEL BUREAUS
ENGAGED IN LEGITIMATE OPERATIONS CAN BE ACCOMPLISHED ONLY BY AMENDMENT
OF THE ACT."  ID. AT P. 80.  SEE ALSO, PP. 76-81. 

THE VALIDITY AND BINDING EFFECT OF THIS ORDER WAS UPHELD BY THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS,
NOVEMBER 18, 1942.  SEE FINDINGS OF FACT AND CONCLUSIONS OF LAW, IN
LEVIN V. UNITED STATES, SUB NOM., T.A. DRAKE ET AL. V. UNITED STATES ET
AL., 3 FED. CAR.  CAS.  (CCH) $* 80,100, JUDGMENT AFFIRMED, PER CURIAM,
319 U.S. 728. 

11.  NOVEMBER 8, 1946.  - PEOPLE V. VAN HORN, 76 CAL. APP.2D 753, 174
P.2D 12.  THERE COULD BE NO DOUBT THAT THE FEDERAL GOVERNMENT HAD THUS
TAKEN JURISDICTION OVER THE REGULATION OF TRAVEL BUREAUS ENGAGED IN
SELLING OR ARRANGING MOTOR TRANSPORTATION IN INTERSTATE COMMERCE OR
THAT THE FEDERAL STATUTE PROHIBITED SUCH TRANSPORTATION WITHOUT A
FEDERAL LICENSE OR PERMIT.  THE EFFECT OF THIS ACTION AS RELATING TO
CALIFORNIA WAS TESTED IN 1945.  THE OPERATOR OF A TRAVEL BUREAU
ARRANGING FOR CASUAL INTERSTATE MOTOR TRANSPORTATION BETWEEN SAN DIEGO
AND POINTS OUTSIDE OF CALIFORNIA WAS CHARGED WITH VIOLATION OF THE 1933
CALIFORNIA ACT, AS AMENDED BY THE ACT OF 1941.  THE APPELLATE
DEPARTMENT OF THE SUPERIOR COURT OF THAT STATE, IN PEOPLE V. VAN HORN,
SUPRA, THEREUPON HELD THAT THE CALIFORNIA STATUTE NO LONGER APPLIED TO
SUCH INTERSTATE COMMERCE BECAUSE, UNDER ITS 1941 AMENDMENT, THAT ACT
WAS MADE TO APPLY ONLY IN "THE ABSENCE OF ACTION ON THE PART OF
CONGRESS OR THE INTERSTATE COMMERCE COMMISSION REGULATING OR REQUIRING
LICENSES OF MOTOR CARRIER TRANSPORTATION AGENTS ACTING AS SUCH FOR
MOTOR CARRIERS CARRYING PASSENGERS IN INTERSTATE COMMERCE ...  "  1941
CAL. STAT., C. 539, SEC. 2, P. 1863.  THE COURT RECOGNIZED THAT, SINCE
1942, THAT CONDITION HAD BEEN MET.  ACCORDINGLY, ALTHOUGH CALIFORNIA
FORMERLY HAD REGULATED THESE TRANSACTIONS, IT WAS HELD THAT IT HAD
VOLUNTARILY ABANDONED SUCH REGULATION IN FAVOR OF THE FEDERAL
GOVERNMENT.  FN24 

12.  JULY 8, 1947.  - THE PRESENT CALIFORNIA STATUTE WAS APPROVED. 
IT REPEALED THE ACT OF 1933, AS AMENDED IN 1935 AND 1941.  WHILE THE
APPLICATION OF THE NEW ACT TO INTERSTATE TRANSACTIONS IS NOT EXPRESS,
IT WAS INTERPRETED BY THE COURT BELOW AS BEING THUS APPLICABLE.  FN25
IT MAY INDICATE, THEREFORE, A CHANGE IN THE LEGISLATIVE POLICY OF
CALIFORNIA TOWARD INTRASTATE OPERATIONS AND AN ATTEMPTED CHANGE TOWARD
INTERSTATE OPERATIONS BUT THERE IS NO EVIDENCE OF A CHANGE IN THE
POLICY OF CONGRESS. 

JURISDICTION OVER THESE INTERSTATE TRANSACTIONS WAS ASSUMED BY
CONGRESS AFTER THROUGH INVESTIGATION OF THE NEED FOR SUCH ACTION.  THAT
LEGISLATION ENACTED WAS SUPREME AND THEREFORE EXCLUSIVE.  THIS DOES NOT
MEAN THAT IT MIGHT NOT HAVE BEEN SHARED WITH THE STATES IF CONGRESS HAD
SO PROVIDED.  WE BELIEVE, HOWEVER, THAT IT DOES MEAN THAT, IN ORDER FOR
THE FEDERAL JURISDICTION TO HAVE BEEN SO SHARED, THERE MUST HAVE BEEN
SOME EXPRESS OR IMPLIED CONSENT BY CONGRESS TO DO SO.  THE POSITION OF
CONGRESS WAS PERFECTLY CLEAR IN 1942.  THERE HAS BEEN NO EVIDENCE OF A
CHANGE IN IT. 

IN APPENDIX C, INFRA, P. 784, THERE ARE PLACED IN CONVENIENT
JUXTAPOSITION THE PRINCIPAL CIRCUMSTANCES IN THIS CASE WHICH
DEMONSTRATE CONFLICTS BETWEEN THE CALIFORNIA AND FEDERAL LEGISLATION
AND POLICIES, CLASSIFIED AS FOLLOWS: 

(1)  CONFLICTS INHERENT IN THE STATUTORY TEXTS. 

(2)  EMPHASIS EXPRESSLY PLACED UPON THE MUTUAL EXCLUSIVENESS OF THE
STATE AND FEDERAL REGULATIONS. 

(3)  CONFLICTS BETWEEN STATE AND FEDERAL POLICIES WHICH LED TO THE
TAKING OF FEDERAL JURISDICTION OVER TRAVEL BUREAUS AND SHARE-THE
EXPENSE MOTOR TRANSPORTATION ENGAGED IN CASUAL INTERSTATE OPERATIONS. 

IN THE ABSENCE OF CONTRAVERTING EVIDENCE, THE ABOVE LIST OF
CIRCUMSTANCES PRESENTS A CONVINCING ARGUMENT AGAINST THE CONCLUSION
THAT CONGRESS, IN THIS INSTANCE, EITHER EXPRESSLY OR IMPLIEDLY
CONSENTED TO SHARE WITH CALIFORNIA THE REGULATION OF CASUAL, OCCASIONAL
OR RECIPROCAL TRANSPORTATION OF PASSENGERS BY MOTOR VEHICLE IN
INTERSTATE COMMERCE. 

WHILE IT MAY BE UNCERTAIN WHERE THE LINE OF EXCLUSIVE FEDERAL
JURISDICTION IMPINGES UPON THAT OF THE STATES IN THE ABSENCE OF THE
EXERCISE OF FEDERAL JURISDICTION BY CONGRESS, THERE IS NO DOUBT THAT,
WHEN CONGRESS HAS ASSERTED ITS EXCLUSIVE JURISDICTION, IT IS FOR
CONGRESS TO INDICATE THE EXTENT, IF ANY, TO WHICH A STATE MAY THEN
SHARE IT.  TO WHATEVER EXTENT THAT THIS IS NOT SO, FEDERAL LAW WILL
HAVE LOST ITS CONSTITUTIONAL SUPREMACY OVER STATE LAW. 

FOR THESE REASONS WE BELIEVE THAT THE JUDGMENT SHOULD BE AFFIRMED. 

             APPENDIX A.

                     THE CALIFORNIA ACT OF 1947. 

"AN ACT TO REPEAL 'AN ACT TO DEFINE MOTOR CARRIER TRANSPORTATION
AGENT; TO PROVIDE FOR THE REGULATION, SUPERVISION AND LICENSING
THEREOF, AND TO PROVIDE FOR THE ENFORCEMENT OF SAID ACT AND PENALTIES
FOR THE VIOLATION THEREOF; AND REPEALING AN ACT ENTITLED "AN ACT TO
DEFINE MOTOR CARRIER TRANSPORTATION AGENT; TO PROVIDE FOR THE
REGULATION, SUPERVISION AND LICENSING THEREOF, AND TO PROVIDE FOR THE
ENFORCEMENT OF SAID ACT AND PENALTIES FOR THE VIOLATION THEREOF,"
APPROVED JUNE 5, 1931, AND ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH
THE PROVISIONS OF THIS ACT,' APPROVED MAY 15, 1933, AND TO ADD SECTIONS
654.1, 654.2, AND 654.3 TO THE PENAL CODE, RELATING TO TRANSPORTATION
OF PERSONS. 

     "(APPROVED BY GOVERNOR JULY 8, 1947.  FILED WITH SECRETARY OF

                         STATE JULY 8, 1947.)    "THE PEOPLE OF THE
STATE OF CALIFORNIA DO ENACT AS FOLLOWS: 

"SECTION 1.  THE ACT CITED IN THE TITLE HEREOF IS REPEALED. 

"SEC. 2.  SECTION 654.1 IS ADDED TO THE PENAL CODE, TO READ: 

"654.1.  IT SHALL BE UNLAWFUL FOR ANY PERSON, ACTING INDIVIDUALLY OR
AS AN OFFICER OR EMPLOYEE OF A CORPORATION, OR AS A MEMBER OF A
COPARTNERSHIP OR AS A COMMISSION AGENT OR EMPLOYEE OF ANOTHER PERSON,
FIRM OR CORPORATION, TO SELL OR OFFER FOR SALE OR, TO NEGOTIATE,
PROVIDE OR ARRANGE FOR, OR TO ADVERTISE OR HOLD HIMSELF OUT AS ONE WHO
SELLS OR OFFERS FOR SALE OR NEGOTIATES, PROVIDES OR ARRANGES FOR
TRANSPORTATION OF A PERSON OR PERSONS ON AN INDIVIDUAL FARE BASIS OVER
THE PUBLIC HIGHWAYS OF THE STATE OF CALIFORNIA UNLESS SUCH
TRANSPORTATION IS TO BE FURNISHED OR PROVIDED SOLELY BY, AND SUCH SALE
IS AUTHORIZED BY, A CARRIER HAVING A VALID AND EXISTING CERTIFICATE OF
CONVENIENCE AND NECESSITY, OR OTHER VALID AND EXISTING PERMIT FROM THE
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA, OR FROM THE
INTERSTATE COMMERCE COMMISSION OF THE UNITED STATES, AUTHORIZING THE
HOLDER OF SUCH CERTIFICATE OR PERMIT TO PROVIDE SUCH TRANSPORTATION. 

"SEC. 3.  SECTION 654.2 IS ADDED TO THE PENAL CODE, TO READ: 

"654.2.  THE PROVISIONS OF SECTION 654.1 OF THE PENAL CODE SHALL NOT
APPLY TO THE SELLING, FURNISHING OR PROVIDING OF TRANSPORTATION OF ANY
PERSON OR PERSONS 

"(1)  WHEN NO COMPENSATION IS PAID OR TO BE PAID, EITHER DIRECTLY OR
INDIRECTLY, FOR SUCH TRANSPORTATION; 

"(2)  TO THE FURNISHING OR PROVIDING OF TRANSPORTATION TO OR FROM
WORK, OF EMPLOYEES ENGAGED IN FARM WORK ON ANY FARM OF THE STATE OF
CALIFORNIA; 

"(3)  TO THE FURNISHING OR PROVIDING OF TRANSPORTATION TO AND FROM
WORK OF EMPLOYEES OF ANY NONPROFIT COOPERATIVE ASSOCIATION, ORGANIZED
PURSUANT TO ANY LAW OF THE STATE OF CALIFORNIA; 

"(4)  TO THE TRANSPORTATION OF PERSONS WHOLLY OR SUBSTANTIALLY WITHIN
THE LIMITS OF A SINGLE MUNICIPALITY OR OF CONTIGUOUS MUNICIPALITIES; 

"(5)  TO TRANSPORTATION OF PERSONS OVER A ROUTE WHOLLY OR PARTLY
WITHIN A NATIONAL PARK OR STATE PARK WHERE SUCH TRANSPORTATION IS SOLD
IN CONJUNCTION WITH OR AS PART OF A RAIL TRIP OR TRIP OVER A REGULARLY
OPERATED MOTOR BUS TRANSPORTATION SYSTEM OR LINE; 

"(6)  TO THE TRANSPORTATION OF PASSENGERS BY A PERSON WHO IS DRIVING
HIS OWN VEHICLE AND THE TRANSPORTATION OF PERSONS OTHER THAN HIMSELF
AND MEMBERS OF HIS FAMILY WHEN TRANSPORTING SUCH PERSONS TO OR FROM
THEIR PLACE OF EMPLOYMENT AND WHEN THE OWNER OF SUCH VEHICLE IS DRIVING
TO OR FROM HIS PLACE OF EMPLOYMENT; PROVIDED THAT ARRANGEMENTS FOR ANY
SUCH TRANSPORTATION PROVIDED UNDER THE PROVISIONS OF THIS SUBSECTION
SHALL BE MADE DIRECTLY BETWEEN THE OWNER OF SUCH VEHICLE AND THE PERSON
WHO USES OR INTENDS TO USE SUCH TRANSPORTATION. 

"SEC. 4.  SECTION 654.3 IS ADDED TO THE PENAL CODE, TO READ: 

"654.3.  VIOLATION OF SECTION 654.1 SHALL BE A MISDEMEANOR, AND UPON
FIRST CONVICTION THE PUNISHMENT SHALL BE A FINE OF NOT OVER TWO HUNDRED
FIFTY DOLLARS ($250), OR IMPRISONMENT IN JAIL FOR NOT OVER 90 DAYS, OR
BOTH SUCH FINE AND IMPRISONMENT.  UPON SECOND CONVICTION THE PUNISHMENT
SHALL BE IMPRISONMENT IN JAIL FOR NOT LESS THAN 30 DAYS AND NOT MORE
THAN 180 DAYS.  UPON A THIRD OR SUBSEQUENT CONVICTION THE PUNISHMENT
SHALL BE CONFINEMENT IN JAIL FOR NOT LESS THAN 90 DAYS AND NOT MORE
THAN ONE YEAR, AND A PERSON SUFFERING THREE OR MORE CONVICTIONS SHALL
NOT BE ELIGIBLE TO PROBATION, THE PROVISIONS OF ANY LAW TO THE CONTRARY
NOTWITHSTANDING."  1947 CAL. STAT., C. 1215, PP. 2723-2725. 

                             APPENDIX B.

      (1)  NATIONAL TRANSPORTATION POLICY. 

"IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF
THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES
OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY."  INSERTED BEFORE PART I OF THE INTERSTATE
COMMERCE ACT, 54 STAT. 899, 49 U.S.C., NOTE PRECEDING SEC. 1. 

THE FOREGOING "NATIONAL TRANSPORTATION POLICY" HAS, FOR MANY
PURPOSES, SUPERSEDED THE DECLARATION OF THE POLICY OF CONGRESS
ENUNCIATED IN THE ORIGINAL SEC. 202 OF THE MOTOR CARRIER ACT, 1935, TO
WHICH A CROSS REFERENCE WAS MADE EXPRESSLY IN SEC. 203(B), 49 STAT.
545.  THIS CROSS REFERENCE PRESCRIBED THAT, IN ORDER TO MAKE PART II OF
THE INTERSTATE COMMERCE ACT APPLICABLE TO THE KIND OF INTERSTATE
TRANSPORTATION DESCRIBED IN SEC. 203(B)(9), THE COMMISSION MUST "FIND
THAT SUCH APPLICATION IS NECESSARY TO CARRY OUT THE POLICY OF CONGRESS
ENUNCIATED IN SECTION 202,  ... "  THE POLICY OF CONGRESS THUS REFERRED
TO AS BEING ENUNCIATED IN SEC. 202 WAS CONTAINED IN THE ORIGINAL FORM
OF SEC. 202(A), 49 STAT. 543.  IT READ AS FOLLOWS: 

"SEC. 202.  (A)  IT IS HEREBY DECLARED TO BE THE POLICY OF CONGRESS
TO REGULATE TRANSPORTATION BY MOTOR CARRIERS IN SUCH MANNER AS TO
RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF, AND FOSTER SOUND
ECONOMIC CONDITIONS IN, SUCH TRANSPORTATION AND AMONG SUCH CARRIERS IN
THE PUBLIC INTEREST; PROMOTE ADEQUATE, ECONOMICAL, AND EFFICIENT
SERVICE BY MOTOR CARRIERS, AND REASONABLE CHARGES THEREFOR, WITHOUT
UNJUST DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, AND UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; IMPROVE THE RELATIONS BETWEEN, AND
COORDINATE TRANSPORTATION BY AND REGULATION OF, MOTOR CARRIERS AND
OTHER CARRIERS; DEVELOP AND PRESERVE A HIGHWAY TRANSPORTATION SYSTEM
PROPERLY ADAPTED TO THE NEEDS OF THE COMMERCE OF THE UNITED STATES AND
OF THE NATIONAL DEFENSE; AND COOPERATE WITH THE SEVERAL STATES AND THE
DULY AUTHORIZED OFFICIALS THEREOF AND WITH ANY ORGANIZATION OF MOTOR
CARRIERS IN THE ADMINISTRATION AND ENFORCEMENT OF THIS PART." 

THE FOREGOING ORIGINAL SEC. 202(A) WAS REPEALED, SEPTEMBER 18, 1940,
54 STAT. 920.  AT THE SAME TIME THE DESIGNATION OF THE ORIGINAL SEC.
202(B) AND (C) WERE CHANGED RESPECTIVELY TO SEC. 202(A) AND (B).  (BOTH
OF THESE SUBSECTIONS ARE MATERIAL AND THEY ARE PRINTED IN APPENDIX B
(2), INFRA.) 

ACCORDINGLY, SEC. 202 OF PART II OF THE INTERSTATE COMMERCE ACT
CEASED TO CONTAIN ANY STATEMENT OF THE GENERAL "POLICY OF CONGRESS"
CORRESPONDING TO THAT CONTAINED IN THE ORIGINAL FORM OF SEC. 202(A). 
ON THE OTHER HAND, THE VERY SAME ACT WHICH THUS REMOVED THIS
DECLARATION OF POLICY FROM PART II OF THE INTERSTATE COMMERCE ACT
INSERTED "BEFORE PART I" OF THAT ACT A NEW PARAGRAPH ENTITLED "NATIONAL
TRANSPORTATION POLICY."  THIS IS THE PARAGRAPH QUOTED ABOVE FROM 54
STAT. 899.  IN THE CODIFICATION OF TITLE 49, A REFERENCE TO THIS NEW
PARAGRAPH WAS SUBSTITUTED FOR THE ORIGINAL REFERENCE TO SEC. 202.  THE
CODIFIED CLAUSE THUS REQUIRED THE COMMISSION TO "FIND THAT SUCH
APPLICATION IS NECESSARY TO CARRY OUT THE NATIONAL TRANSPORTATION
POLICY DECLARED IN THE INTERSTATE COMMERCE ACT,  ...  "  49 U.S.C. SEC.
303(B), INSTEAD OF "THE POLICY OF CONGRESS ENUNCIATED IN SECTION 202,
...  "  WE HAVE ADOPTED THAT INTERPRETATION IN THIS OPINION. 

    (2)  MATERIAL PROVISIONS OF PART II OF THE INTERSTATE COMMERCE

                          ACT. 

"SEC. 202.  (A)  THE PROVISIONS OF THIS PART APPLY TO THE
TRANSPORTATION OF PASSENGERS OR PROPERTY BY MOTOR CARRIERS ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE AND TO THE PROCUREMENT OF AND THE
PROVISION OF FACILITIES FOR SUCH TRANSPORTATION, AND THE REGULATION OF
SUCH TRANSPORTATION, AND OF THE PROCUREMENT THEREOF, AND THE PROVISION
OF FACILITIES THEREFOR, IS HEREBY VESTED IN THE INTERSTATE COMMERCE
COMMISSION. 

"(B)  NOTHING IN THIS PART SHALL BE CONSTRUED TO AFFECT THE POWERS OF
TAXATION OF THE SEVERAL STATES OR TO AUTHORIZE A MOTOR CARRIER TO DO AN
INTRASTATE BUSINESS ON THE HIGHWAYS OF ANY STATE, OR TO INTERFERE WITH
THE EXCLUSIVE EXERCISE BY EACH STATE OF THE POWER OF REGULATION OF
INTRASTATE COMMERCE BY MOTOR CARRIERS ON THE HIGHWAYS THEREOF."  49
STAT. 543, AS AMENDED, 54 STAT. 920, 49 U.S.C. SEC. 302(A) AND (B). 

"SEC. 203.  ... 

"(B)  NOTHING IN THIS PART, EXCEPT THE PROVISIONS OF SECTION 204
RELATIVE TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES
AND SAFETY OF OPERATION OR STANDARDS OF EQUIPMENT SHALL BE CONSTRUED TO
INCLUDE (1) MOTOR VEHICLES EMPLOYED SOLELY IN TRANSPORTING SCHOOL
CHILDREN AND TEACHERS TO OR FROM SCHOOL; OR (2) TAXICABS, OR OTHER
MOTOR VEHICLES PERFORMING A BONA FIDE TAXICAB SERVICE, HAVING A
CAPACITY OF NOT MORE THAN SIX PASSENGERS AND NOT OPERATED ON A REGULAR
ROUTE OR BETWEEN FIXED TERMINI; OR (3) MOTOR VEHICLES OWNED OR OPERATED
BY OR ON BEHALF OF HOTELS AND USED EXCLUSIVELY FOR THE TRANSPORTATION
OF HOTEL PATRONS BETWEEN HOTELS AND LOCAL RAILROAD OR OTHER COMMON
CARRIER STATIONS; OR (4) MOTOR VEHICLES OPERATED, UNDER AUTHORIZATION,
REGULATION, AND CONTROL OF THE SECRETARY OF THE INTERIOR, PRINCIPALLY
FOR THE PURPOSE OF TRANSPORTING PERSONS IN AND ABOUT THE NATIONAL PARKS
AND NATIONAL MONUMENTS; OR (4A) MOTOR VEHICLES CONTROLLED AND OPERATED
BY ANY FARMER WHEN USED IN THE TRANSPORTATION OF HIS AGRICULTURAL
COMMODITIES AND PRODUCTS THEREOF, OR IN THE TRANSPORTATION OF SUPPLIES
TO HIS FARM; OR (5) MOTOR VEHICLES CONTROLLED AND OPERATED BY A
COOPERATIVE ASSOCIATION AS DEFINED IN THE AGRICULTURAL MARKETING ACT,
APPROVED JUNE 15, 1929, AS AMENDED, OR BY A FEDERATION OF SUCH
COOPERATIVE ASSOCIATIONS, IF SUCH FEDERATION POSSESSES NO GREATER
POWERS OR PURPOSES THAN COOPERATIVE ASSOCIATIONS SO DEFINED; OR (6)
MOTOR VEHICLES USED IN CARRYING PROPERTY CONSISTING OF ORDINARY
LIVESTOCK, FISH (INCLUDING SHELL FISH), OR AGRICULTURAL COMMODITIES
(NOT INCLUDING MANUFACTURED PRODUCTS THEREOF), IF SUCH MOTOR VEHICLES
ARE NOT USED IN CARRYING ANY OTHER PROPERTY, OR PASSENGERS, FOR
COMPENSATION; OR (7) MOTOR VEHICLES USED EXCLUSIVELY IN THE
DISTRIBUTION OF NEWSPAPERS; OR (7A) THE TRANSPORTATION OF PERSONS OR
PROPERTY BY MOTOR VEHICLE WHEN INCIDENTAL TO TRANSPORTATION BY
AIRCRAFT; NOR, UNLESS AND TO THE EXTENT THAT THE COMMISSION SHALL FROM
TIME TO TIME FIND THAT SUCH APPLICATION IS NECESSARY TO CARRY OUT THE
POLICY OF CONGRESS ENUNCIATED IN SECTION 202,  FN26  SHALL THE
PROVISIONS OF THIS PART, EXCEPT THE PROVISIONS OF SECTION 204 RELATIVE
TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND SAFETY
OF OPERATION OR STANDARDS OF EQUIPMENT APPLY TO: (8) THE TRANSPORTATION
OF PASSENGERS OR PROPERTY IN INTERSTATE OR FOREIGN COMMERCE WHOLLY
WITHIN A MUNICIPALITY OR BETWEEN CONTIGUOUS MUNICIPALITIES OR WITHIN A
ZONE ADJACENT TO AND COMMERCIALLY A PART OF ANY SUCH MUNICIPALITY OR
MUNICIPALITIES, EXCEPT WHEN SUCH TRANSPORTATION IS UNDER A COMMON
CONTROL, MANAGEMENT, OR ARRANGEMENT FOR A CONTINUOUS CARRIAGE OR
SHIPMENT TO OR FROM A POINT WITHOUT SUCH MUNICIPALITY, MUNICIPALITIES,
OR ZONE, AND PROVIDED THAT THE MOTOR CARRIER ENGAGED IN SUCH
TRANSPORTATION OF PASSENGERS OVER REGULAR OR IRREGULAR ROUTE OR ROUTES
IN INTERSTATE COMMERCE IS ALSO LAWFULLY ENGAGED IN THE INTRASTATE
TRANSPORTATION OF PASSENGERS OVER THE ENTIRE LENGTH OF SUCH INTERSTATE
ROUTE OR ROUTES IN ACCORDANCE WITH THE LAWS OF EACH STATE HAVING
JURISDICTION; OR (9) THE CASUAL, OCCASIONAL, OR RECIPROCAL
TRANSPORTATION OF PASSENGERS OR PROPERTY BY MOTOR VEHICLE IN INTERSTATE
OR FOREIGN COMMERCE FOR COMPENSATION BY ANY PERSON NOT ENGAGED IN
TRANSPORTATION BY MOTOR VEHICLE AS A REGULAR OCCUPATION OR BUSINESS,
UNLESS, IN THE CASE OF TRANSPORTATION OF PASSENGERS, SUCH
TRANSPORTATION IS SOLD OR OFFERED FOR SALE, OR PROVIDED OR PROCURED OR
FURNISHED OR ARRANGED FOR, BY A BROKER, OR BY ANY OTHER PERSON WHO
SELLS OR OFFERS FOR SALE TRANSPORTATION FURNISHED BY A PERSON LAWFULLY
ENGAGED IN THE TRANSPORTATION OF PASSENGERS BY MOTOR VEHICLE UNDER A
CERTIFICATE OR PERMIT ISSUED UNDER THIS PART OR UNDER A PENDING
APPLICATION FOR SUCH A CERTIFICATE OR PERMIT."  49 STAT. 545-546, AS
AMENDED BY 52 STAT. 1029, 1237, 54 STAT. 921, 49 U.S.C. SEC. 303(B). 

"SEC. 211.  (A)  NO PERSON SHALL FOR COMPENSATION SELL OR OFFER FOR
SALE TRANSPORTATION SUBJECT TO THIS PART OR SHALL MAKE ANY CONTRACT,
AGREEMENT, OR ARRANGEMENT TO PROVIDE, PROCURE, FURNISH, OR ARRANGE FOR
SUCH TRANSPORTATION OR SHALL HOLD HIMSELF OR ITSELF OUT BY
ADVERTISEMENT, SOLICITATION, OR OTHERWISE AS ONE WHO SELLS, PROVIDES,
PROCURES, CONTRACTS, OR ARRANGES FOR SUCH TRANSPORTATION, UNLESS SUCH
PERSON HOLDS A BROKER'S LICENSE ISSUED BY THE COMMISSION TO ENGAGE IN
SUCH TRANSACTIONS:  PROVIDED, HOWEVER, THAT NO SUCH PERSON SHALL ENGAGE
IN TRANSPORTATION SUBJECT TO THIS PART UNLESS HE HOLDS A CERTIFICATE OR
PERMIT AS PROVIDED IN THIS PART.  IN THE EXECUTION OF ANY CONTRACT,
AGREEMENT, OR ARRANGEMENT TO SELL, PROVIDE, PROCURE, FURNISH, OR
ARRANGE FOR SUCH TRANSPORTATION, IT SHALL BE UNLAWFUL FOR SUCH PERSON
TO EMPLOY ANY CARRIER BY MOTOR VEHICLE WHO OR WHICH IS NOT THE LAWFUL
HOLDER OF AN EFFECTIVE CERTIFICATE OR PERMIT ISSUED AS PROVIDED IN THIS
PART:  AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS PARAGRAPH
SHALL NOT APPLY TO ANY CARRIER HOLDING A CERTIFICATE OR A PERMIT UNDER
THE PROVISIONS OF THIS PART OR TO ANY BONA FIDE EMPLOYEE OR AGENT OF
SUCH MOTOR CARRIER, SO FAR AS CONCERNS TRANSPORTATION TO BE FURNISHED
WHOLLY BY SUCH CARRIER OR JOINTLY WITH OTHER MOTOR CARRIERS HOLDING
LIKE CERTIFICATES OR PERMITS, OR WITH A COMMON CARRIER BY RAILROAD,
EXPRESS, OR WATER."  49 STAT. 554, 49 U.S.C. SEC. 311(A).    "SEC.
222.  (A)  ANY PERSON KNOWINGLY AND WILLFULLY VIOLATING ANY PROVISION
OF THIS PART, OR ANY RULE, REGULATION, REQUIREMENT, OR ORDER
THEREUNDER, OR ANY TERM OR CONDITION OF ANY CERTIFICATE, PERMIT, OR
LICENSE, FOR WHICH A PENALTY IS NOT OTHERWISE HEREIN PROVIDED, SHALL,
UPON CONVICTION THEREOF, BE FINED NOT MORE THAN $100 FOR THE FIRST
OFFENSE AND NOT MORE THAN $500 FOR ANY SUBSEQUENT OFFENSE.  EACH DAY OF
SUCH VIOLATION SHALL CONSTITUTE A SEPARATE OFFENSE."  49 STAT. 564, 49
U.S.C. SEC. 322(A). 

                             APPENDIX C.

           SUMMARY OF CONFLICTS BETWEEN CALIFORNIA AND FEDERAL

               LEGISLATION AND POLICIES.  (1)  CONFLICTS INHERENT

           IN THE STATUTORY TEXTS.            CALIFORNIA

           STATUTE.              (SEE APPENDIX A, SUPRA.) (A)

           PERSONS AFFECTED AND ACTIVITIES PROHIBITED. 

654.1.  IT SHALL BE UNLAWFUL FOR ANY PERSON, ACTING INDIVIDUALLY OR
AS AN OFFICER OR EMPLOYEE OF A CORPORATION, OR AS A MEMBER OF A
COPARTNERSHIP OR AS A COMMISSION AGENT OR EMPLOYEE OF ANOTHER PERSON,
FIRM OR CORPORATION, TO SELL OR OFFER FOR SALE OR, TO NEGOTIATE,
PROVIDE OR ARRANGE FOR, OR TO ADVERTISE OR HOLD HIMSELF OUT AS ONE WHO
SELLS OR OFFERS FOR SALE OR NEGOTIATES, PROVIDES OR ARRANGES FOR
TRANSPORTATION OF A PERSON OR PERSONS ON AN INDIVIDUAL FARE BASIS OVER
THE PUBLIC HIGHWAYS OF THE STATE OF CALIFORNIA UNLESS SUCH
TRANSPORTATION IS TO BE FURNISHED OR PROVIDED SOLELY BY, AND SUCH SALE
IS AUTHORIZED BY, A CARRIER HAVING A VALID AND EXISTING CERTIFICATE OF
CONVENIENCE AND NECESSITY, OR OTHER VALID AND EXISTING PERMIT FROM THE
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA, OR FROM THE
INTERSTATE COMMERCE COMMISSION OF THE UNITED STATES, AUTHORIZING THE
HOLDER OF SUCH CERTIFICATE OR PERMIT TO PROVIDE SUCH TRANSPORTATION. 

(IN ADDITION TO THE TEXTUAL VARIATIONS BETWEEN THE STATE AND FEDERAL
PROHIBITIONS, THIS MEASURE DIFFERS FROM THE FEDERAL MEASURE BECAUSE
THIS MERELY PROHIBITS TRAVEL BUREAU OPERATIONS AS SUCH UNLESS THE
CARRIER HAS A STATE OR FEDERAL LICENSE OR PERMIT AND IT DOES NOT
REQUIRE THAT THE BROKER SELLING OR ARRANGING FOR THE TRANSPORTATION
MUST BE A LICENSED BROKER.) 

                           (B)  EXEMPTIONS. 

654.2.  THE PROVISIONS OF SECTION 654.1 OF THE PENAL CODE SHALL NOT
APPLY TO THE SELLING, FURNISHING OR PROVIDING OF TRANSPORTATION OF ANY
PERSON OR PERSONS 

(1)  WHEN NO COMPENSATION IS PAID OR TO BE PAID, EITHER DIRECTLY OR
INDIRECTLY, FOR SUCH TRANSPORTATION; 

(2)  TO THE FURNISHING OR PROVIDING OF TRANSPORTATION TO OR FROM
WORK, OF EMPLOYEES ENGAGED IN FARM WORK ON ANY FARM OF THE STATE OF
CALIFORNIA; 

(3)  TO THE FURNISHING OR PROVIDING OF TRANSPORTATION TO AND FROM
WORK OF EMPLOYEES OF ANY NONPROFIT COOPERATIVE ASSOCIATION, ORGANIZED
PURSUANT TO ANY LAW OF THE STATE OF CALIFORNIA; 

(4)  TO THE TRANSPORTATION OF PERSONS WHOLLY OR SUBSTANTIALLY WITHIN
THE LIMITS OF A SINGLE MUNICIPALITY OR OF CONTIGUOUS MUNICIPALITIES; 

(5)  TO TRANSPORTATION OF PERSONS OVER A ROUTE WHOLLY OR PARTLY
WITHIN A NATIONAL PARK OR STATE PARK WHERE SUCH TRANSPORTATION IS SOLD
IN CONJUNCTION WITH OR AS PART OF A RAIL TRIP OR TRIP OVER A REGULARLY
OPERATED MOTOR BUS TRANSPORTATION SYSTEM OR LINE; 

(6)  TO THE TRANSPORTATION OF PASSENGERS BY A PERSON WHO IS DRIVING
HIS OWN VEHICLE AND THE TRANSPORTATION OF PERSONS OTHER THAN HIMSELF
AND MEMBERS OF HIS FAMILY WHEN TRANSPORTING SUCH PERSONS TO OR FROM
THEIR PLACE OF EMPLOYMENT AND WHEN THE OWNER OF SUCH VEHICLE IS DRIVING
TO OR FROM HIS PLACE OF EMPLOYMENT; PROVIDED THAT ARRANGEMENTS FOR ANY
SUCH TRANSPORTATION PROVIDED UNDER THE PROVISIONS OF THIS SUBSECTION
SHALL BE MADE DIRECTLY BETWEEN THE OWNER OF SUCH VEHICLE AND THE PERSON
WHO USES OR INTENDS TO USE SUCH TRANSPORTATION. 

                (C)  PENALTIES. 

654.3.  VIOLATION OF SECTION 654.1 SHALL BE A MISDEMEANOR, AND UPON
FIRST CONVICTION THE PUNISHMENT SHALL BE A FINE OF NOT OVER TWO HUNDRED
FIFTY DOLLARS ($250), OR IMPRISONMENT IN JAIL FOR NOT OVER 90 DAYS, OR
BOTH SUCH FINE AND IMPRISONMENT.  UPON SECOND CONVICTION THE PUNISHMENT
SHALL BE IMPRISONMENT IN JAIL FOR NOT LESS THAN 30 DAYS AND NOT MORE
THAN 180 DAYS.  UPON A THIRD OR SUBSEQUENT CONVICTION THE PUNISHMENT
SHALL BE CONFINEMENT IN JAIL FOR NOT LESS THAN 90 DAYS AND NOT MORE
THAN ONE YEAR, AND A PERSON SUFFERING THREE OR MORE CONVICTIONS SHALL
NOT BE ELIGIBLE TO PROBATION, THE PROVISIONS OF ANY LAW TO THE CONTRARY
NOTWITHSTANDING. 

                        FEDERAL STATUTE. 

     (SEE APPENDIX B(2), SUPRA.)

           (A)  PERSONS AFFECTED AND ACTIVITIES PROHIBITED. 

SEC. 203.  (A)  AS USED IN THIS PART - 

(1)  THE TERM "PERSON" MEANS ANY INDIVIDUAL, FIRM, CORPARTNERSHIP,
CORPORATION, COMPANY, ASSOCIATION, OR JOINT-STOCK ASSOCIATION; AND
INCLUDES ANY TRUSTEE, RECEIVER, ASSIGNEE, OR PERSONAL REPRESENTATIVE
THEREOF.  49 STAT. 544, 49 U.S.C. SEC. 303(A)(1). 

SEC. 211.  (A)  NO PERSON SHALL FOR COMPENSATION SELL OR OFFER FOR
SALE TRANSPORTATION SUBJECT TO THIS PART OR SHALL MAKE ANY CONTRACT,
AGREEMENT, OR ARRANGEMENT TO PROVIDE, PROCURE, FURNISH, OR ARRANGE FOR
SUCH TRANSPORTATION OR SHALL HOLD HIMSELF OR ITSELF OUT BY
ADVERTISEMENT, SOLICITATION, OR OTHERWISE AS ONE WHO SELLS, PROVIDES,
PROCURES, CONTRACTS, OR ARRANGES FOR SUCH TRANSPORTATION, UNLESS SUCH
PERSON HOLDS A BROKER'S LICENSE ISSUED BY THE COMMISSION TO ENGAGE IN
SUCH TRANSACTIONS:  PROVIDED HOWEVER, THAT NO SUCH PERSON SHALL ENGAGE
IN TRANSPORTATION SUBJECT TO THIS PART UNLESS HE HOLDS A CERTIFICATE OR
PERMIT AS PROVIDED IN THIS PART.  IN THE EXECUTION OF ANY CONTRACT,
AGREEMENT, OR ARRANGEMENT TO SELL, PROVIDE, PROCURE, FURNISH, OR
ARRANGE FOR SUCH TRANSPORTATION, IT SHALL BE UNLAWFUL FOR SUCH PERSON
TO EMPLOY ANY CARRIER BY MOTOR VEHICLE WHO OR WHICH IS NOT THE LAWFUL
HOLDER OF AN EFFECTIVE CERTIFICATE OR PERMIT ISSUED AS PROVIDED IN THIS
PART:  ... 

(IN ADDITION TO THE TEXTUAL VARIATIONS BETWEEN THE STATE AND FEDERAL
PROHIBITIONS, THIS DIFFERS FROM THE STATE MEASURE BECAUSE THIS MEASURE
NOT ONLY PROHIBITS INTERSTATE TRAVEL BUREAU OPERATIONS AS SUCH UNLESS
THE CARRIER HOLDS A FEDERAL LICENSE OR PERMIT, BUT IT ALSO REQUIRES
THAT THE BROKER SELLING OR ARRANGING FOR THE TRANSPORTATION MUST HOLD A
FEDERAL BROKER'S LICENSE.) 

                           (B)  EXEMPTIONS. 

SEC. 211.  (A)  ...  AND PROVIDED FURTHER, THAT THE PROVISIONS OF
THIS PARAGRAPH SHALL NOT APPLY TO ANY CARRIER HOLDING A CERTIFICATE OR
A PERMIT UNDER THE PROVISIONS OF THIS PART OR TO ANY BONA FIDE EMPLOYEE
OR AGENT OF SUCH MOTOR CARRIER, SO FAR AS CONCERNS TRANSPORTATION TO BE
FURNISHED WHOLLY BY SUCH CARRIER OR JOINTLY WITH OTHER MOTOR CARRIERS
HOLDING LIKE CERTIFICATES OR PERMITS, OR WITH A COMMON CARRIER BY
RAILROAD, EXPRESS, OR WATER. 

SEC. 203.  ... 

(B)  NOTHING IN THIS PART, EXCEPT THE PROVISIONS OF SECTION 204
RELATIVE TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES
AND SAFETY OF OPERATION OR STANDARDS OF EQUIPMENT SHALL BE CONSTRUED TO
INCLUDE (1) MOTOR VEHICLES EMPLOYED SOLELY IN TRANSPORTING SCHOOL
CHILDREN AND TEACHERS TO OR FROM SCHOOL; OR (2) TAXICABS, OR OTHER
MOTOR VEHICLES PERFORMING A BONA FIDE TAXICAB SERVICE, HAVING A
CAPACITY OF NOT MORE THAN SIX PASSENGERS AND NOT OPERATED ON A REGULAR
ROUTE OR BETWEEN FIXED TERMINI; OR (3) MOTOR VEHICLES OWNED OR OPERATED
BY OR ON BEHALF OF HOTELS AND USED EXCLUSIVELY FOR THE TRANSPORTATION
OF HOTEL PATRONS BETWEEN HOTELS AND LOCAL RAILROAD OR OTHER COMMON
CARRIER STATIONS; OR (4) MOTOR VEHICLES OPERATED, UNDER AUTHORIZATION,
REGULATION, AND CONTROL OF THE SECRETARY OF THE INTERIOR, PRINCIPALLY
FOR THE PURPOSE OF TRANSPORTING PERSONS IN AND ABOUT THE NATIONAL PARKS
AND NATIONAL MONUMENTS; OR (4A) MOTOR VEHICLES CONTROLLED AND OPERATED
BY ANY FARMER WHEN USED IN THE TRANSPORTATION OF HIS AGRICULTURAL
COMMODITIES AND PRODUCTS THEREOF, OR IN THE TRANSPORTATION OF SUPPLIES
TO HIS FARM; OR (5) MOTOR VEHICLES CONTROLLED AND OPERATED BY A
COOPERATIVE ASSOCIATION AS DEFINED IN THE AGRICULTURAL MARKETING ACT,
APPROVED JUNE 15, 1929, AS AMENDED, OR BY A FEDERATION OF SUCH
COOPERATIVE ASSOCIATIONS, IF SUCH FEDERATION POSSESSES NO GREATER
POWERS OR PURPOSES THAN COOPERATIVE ASSOCIATIONS SO DEFINED; OR (6)
MOTOR VEHICLES USED IN CARRYING PROPERTY CONSISTING OF ORDINARY
LIVESTOCK, FISH (INCLUDING SHELL FISH), OR AGRICULTURAL COMMODITIES
(NOT INCLUDING MANUFACTURED PRODUCTS THEREOF), IF SUCH MOTOR VEHICLES
ARE NOT USED IN CARRYING ANY OTHER PROPERTY, OR PASSENGERS, FOR
COMPENSATION; OR (7) MOTOR VEHICLES USED EXCLUSIVELY IN THE
DISTRIBUTION OF NEWSPAPERS; OR (7A) THE TRANSPORTATION OF PERSONS OR
PROPERTY BY MOTOR VEHICLE WHEN INCIDENTAL TO TRANSPORTATION BY
AIRCRAFT; NOR, UNLESS AND TO THE EXTENT THAT THE COMMISSION SHALL FROM
TIME TO TIME FIND THAT SUCH APPLICATION IS NECESSARY TO CARRY OUT THE
POLICY OF CONGRESS ENUNCIATED IN SECTION 202, SHALL THE PROVISIONS OF
THIS PART, EXCEPT THE PROVISIONS OF SECTION 204 RELATIVE TO
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND SAFETY OF
OPERATION OR STANDARDS OF EQUIPMENT APPLY TO:  (8)  THE TRANSPORTATION
OF PASSENGERS OR PROPERTY IN INTERSTATE OR FOREIGN COMMERCE WHOLLY
WITHIN A MUNICIPALITY OR BETWEEN CONTIGUOUS MUNICIPALITIES OR WITHIN A
ZONE ADJACENT TO AND COMMERCIALLY A PART OF ANY SUCH MUNICIPALITY OR
MUNICIPALITIES, EXCEPT WHEN SUCH TRANSPORTATION IS UNDER A COMMON
CONTROL, MANAGEMENT, OR ARRANGEMENT FOR A CONTINUOUS CARRIAGE OR
SHIPMENT TO OR FROM A POINT WITHOUT SUCH MUNICIPALITY, MUNICIPALITIES,
OR ZONE, AND PROVIDED THAT THE MOTOR CARRIER ENGAGED IN SUCH
TRANSPORTATION OF PASSENGERS OVER REGULAR OR IRREGULAR ROUTE OR ROUTES
IN INTERSTATE COMMERCE IS ALSO LAWFULLY ENGAGED IN THE INTRASTATE
TRANSPORTATION OF PASSENGERS OVER THE ENTIRE LENGTH OF SUCH INTERSTATE
ROUTE OR ROUTES IN ACCORDANCE WITH THE LAWS OF EACH STATE HAVING
JURISDICTION; OR (9) THE CASUAL, OCCASIONAL, OR RECIPROCAL
TRANSPORTATION OF PASSENGERS OR PROPERTY BY MOTOR VEHICLE IN INTERSTATE
OR FOREIGN COMMERCE FOR COMPENSATION BY ANY PERSON NOT ENGAGED IN
TRANSPORTATION BY MOTOR VEHICLE AS A REGULAR OCCUPATION OR BUSINESS,
UNLESS, IN THE CASE OF TRANSPORTATION OF PASSENGERS, SUCH
TRANSPORTATION IS SOLD OR OFFERED FOR SALE, OR PROVIDED OR PROCURED OR
FURNISHED OR ARRANGED FOR, BY A BROKER, OR BY ANY OTHER PERSON WHO
SELLS OR OFFERS FOR SALE TRANSPORTATION FURNISHED BY A PERSON LAWFULLY
ENGAGED IN THE TRANSPORTATION OF PASSENGERS BY MOTOR VEHICLE UNDER A
CERTIFICATE OR PERMIT ISSUED UNDER THIS PART OR UNDER A PENDING
APPLICATION FOR SUCH A CERTIFICATE OR PERMIT. 

                          (C)  PENALTIES. 

SEC. 222.  (A)  ANY PERSON KNOWINGLY AND WILLFULLY VIOLATING ANY
PROVISION OF THIS PART, OR ANY RULE, REGULATION, REQUIREMENT, OR ORDER
THEREUNDER, OR ANY TERM OR CONDITION OF ANY CERTIFICATE, PERMIT, OR
LICENSE, FOR WHICH A PENALTY IS NOT OTHERWISE HEREIN PROVIDED, SHALL,
UPON CONVICTION THEREOF, BE FINED NOT MORE THAN $100 FOR THE FIRST
OFFENSE AND NOT MORE THAN $500 FOR ANY SUBSEQUENT OFFENSE.  EACH DAY OF
SUCH VIOLATION SHALL CONSTITUTE A SEPARATE OFFENSE. 

     (2)  EMPHASIS EXPRESSLY PLACED UPON THE MUTUAL EXCLUSIVENESS

            OF THE STATE AND FEDERAL REGULATIONS ASSIGNING

  INTRASTATE REGULATION TO THE STATES, AND INTERSTATE REGULATION

              TO THE INTERSTATE COMMERCE COMMISSION UPON

                      ITS FINDING IT NECESSARY. 

1933 CALIFORNIA ACT. 

THE STATE POLICY OF REGULATION OF MOTOR CARRIER TRANSPORTATION AGENTS
AND UNLICENSED SHARE-THE-EXPENSE MOTOR CARRIERS WAS TO APPLY TO
INTERSTATE, AS WELL AS INTRASTATE, TRANSPORTATION "UNTIL SUCH TIME AS
CONGRESS OF THE UNITED STATES SHALL ACT,  ..."  P. 760, SUPRA. 

1941 CALIFORNIA AMENDMENTS. 

THE STATE REGULATION OF THE INTERSTATE TRANSPORTATION WAS LIMITED TO
A PERIOD IN "THE ABSENCE OF ACTION ON THE PART OF CONGRESS OR THE
INTERSTATE COMMERCE COMMISSION REGULATING OR REQUIRING LICENSES OF
MOTOR CARRIER TRANSPORTATION AGENTS ACTING AS SUCH FOR MOTOR CARRIERS
CARRYING PASSENGERS IN INTERSTATE COMMERCE ...."  P. 769, SUPRA. 

1947 CALIFORNIA ACT. 

THIS REPEALED THE 1933 ACT, AS AMENDED IN 1941, AND MENTIONED ONLY
"TRANSPORTATION  ...  OVER THE PUBLIC HIGHWAYS OF THE STATE OF
CALIFORNIA  ..."  APPENDIX A, SUPRA.  THIS COULD BE INTERPRETED, AS
LIMITED TO INTRASTATE TRANSPORTATION BUT IT WAS INTERPRETED, BY THE
COURT BELOW, AS AN INVALID ATTEMPT TO INVADE THE FEDERAL JURISDICTION
OVER INTERSTATE COMMERCE.  NOTE 7, SUPRA. 

FEDERAL ACT - MOTOR CARRIER ACT, 1935, PART II, INTERSTATE COMMERCE
ACT. 

"THE PROVISIONS OF THIS PART APPLY TO THE TRANSPORTATION OF
PASSENGERS OR PROPERTY BY MOTOR CARRIERS ENGAGED IN INTERSTATE OR
FOREIGN COMMERCE  ...  AND THE REGULATION OF SUCH TRANSPORTATION,  ...
IS HEREBY VESTED IN THE INTERSTATE COMMERCE COMMISSION."  SEC. 202(A),
APPENDIX B(2), SUPRA. 

"NOTHING IN THIS PART SHALL BE CONSTRUED ...  TO INTERFERE WITH THE
EXCLUSIVE EXERCISE BY EACH STATE OF THE POWER OF REGULATION OF
INTRASTATE COMMERCE BY MOTOR CARRIERS ON THE HIGHWAYS THEREOF."  SEC.
202(B), APPENDIX B(2), SUPRA. 

NOTHING IN THIS PART WAS TO INCLUDE THE CASUAL, OCCASIONAL, OR
RECIPROCAL TRANSPORTATION OF PASSENGERS BY MOTOR VEHICLE IN INTERSTATE
COMMERCE FOR COMPENSATION BY ANY PERSON NOT ENGAGED IN SUCH
TRANSPORTATION AS A REGULAR OCCUPATION OR BUSINESS "UNLESS AND TO THE
EXTENT THAT THE COMMISSION SHALL FROM TIME TO TIME FIND THAT SUCH
APPLICATION IS NECESSARY TO CARRY OUT THE POLICY OF CONGRESS ENUNCIATED
IN SECTION 202,  ..."  SEC. 203(B), APPENDIX B(2), SUPRA. 

FEDERAL ACT - 1940 AMENDMENT TO PART II OF THE INTERSTATE COMMERCE
ACT. 

THIS PARTLY REMOVED THE EXEMPTION OF THE FEDERAL ACT FROM THE CASUAL,
OCCASIONAL, OR RECIPROCAL TRANSPORTERS OF PERSONS OR PROPERTY IN
INTERSTATE COMMERCE.  THE REMOVAL APPLIED TO CASES, FOR EXAMPLE, WHERE
THE TRANSPORTATION WAS SOLD OR ARRANGED FOR BY A BROKER.  NOTE 20,
SUPRA.    FEDERAL ORDER - 1942 ORDER OF THE INTERSTATE COMMERCE
COMMISSION. 

THIS FURTHER REMOVED THE EXEMPTION FROM THE CASUAL, OCCASIONAL, OR
RECIPROCAL TRANSPORTERS OR RECIPROCAL TRANSPORTERS OF PERSONS OR
PROPERTY IN INTERSTATE COMMERCE.  THIS FEDERAL ORDER BROUGHT THESE
INTERSTATE OPERATIONS UNDER THE FEDERAL ACT AND UNDER THE REGULATIONS
OF THE COMMISSION.  BY VIRTUE OF THE SELF-TERMINATING PROVISIONS OF THE
CALIFORNIA ACT, THIS ORDER CUT OFF THE STATE REGULATION OF THESE
INTERSTATE OPERATIONS.  NOTE 23, SUPRA.

        (3)  CONFLICTS BETWEEN STATE AND FEDERAL POLICIES WHICH
    LED TO THE TAKING OF FEDERAL JURISDICTION OVER TRAVEL

          BUREAUS AND SHARE-THE-EXPENSE MOTOR TRANSPORTATION

           ENGAGED IN CASUAL INTERSTATE OPERATIONS. 

THE 1931 CALIFORNIA ACT RECOGNIZED AND LICENSED TRAVEL BUREAUS
ARRANGING SHARE-THE-EXPENSE INTERSTATE, AS WELL AS INTRASTATE, MOTOR
TRIPS BY UNLICENSED CARRIERS.  PP. 759-760, SUPRA. 

THE 1933 CALIFORNIA ACT CONTINUED THIS POLICY AS TO INTERSTATE AS
WELL AS INTRASTATE TRANSPORTATION.  IT STATED, HOWEVER, THAT SUCH
APPLICATION TO INTERSTATE TRANSPORTATION WOULD CONTINUE ONLY UNTIL SUCH
TIME AS THE CONGRESS OF THE UNITED STATES TOOK ACTION.  PP. 760-761,
SUPRA. 

THE 1941 CALIFORNIA AMENDMENTS EMPHASIZED THE LIMITATION UPON STATE
REGULATION OF INTERSTATE TRANSPORTATION.  PP. 769-770, SUPRA. 

IN 1942, THE ANTICIPATED FEDERAL ACTION AUTOMATICALLY CUT OFF THE
CALIFORNIA REGULATION OF THESE INTERSTATE OPERATIONS.  PP. 770-774,
SUPRA. 

IN 1935 AND 1940, PART II OF THE INTERSTATE COMMERCE ACT GAVE WARNING
THAT FEDERAL CONTROL WOULD BE TAKEN WHEN THE INTERSTATE COMMERCE
COMMISSION FOUND IT NECESSARY IN ORDER TO CARRY OUT THE POLICY OF
CONGRESS.  PP. 761-762, 767-768, SUPRA. 

IN 1940, THE INTERSTATE COMMERCE COMMISSION BEGAN ITS EXPRESSLY
AUTHORIZED INVESTIGATIONS INTO THE OPERATIONS OF TRAVEL BUREAUS AND
SHARE-THE-EXPENSE INTERSTATE MOTOR TRANSPORTATION.  PP. 765-767, SUPRA.
IN 1942, THESE RESULTED IN THE COMMISSION'S CONCLUSION THAT SUCH
OPERATIONS, AS APPLIED TO INTERSTATE COMMERCE, WERE CONTRARY TO PUBLIC
POLICY.  IT DECLINED TO ISSUE A LICENSE EVEN TO A REGULAR
TRANSPORTATION BROKER UNLESS HE AGREED TO REFRAIN FROM SUCH
OPERATIONS.  IT EXPRESSLY FOUND THAT STATE AND LOCAL OFFICIALS WERE
UNABLE TO REGULATE SUCH OPERATIONS BECAUSE A LARGE PROPORTION OF THE
TRANSPORTATION WAS INTERSTATE. 

IN 1942, THE INTERSTATE COMMERCE COMMISSION ORDER LARGELY REMOVED THE
STATUTORY EXEMPTION OF THESE TRAVEL BUREAUS AND OPERATIONS FROM THE
INTERSTATE COMMERCE ACT AND FEDERAL CONTROL HAS BEEN CONTINUOUSLY
EXERCISED OVER THEM SINCE THAT DATE.  PP. 770-773, SUPRA. 

FN1  SEE APPENDIX A, INFRA, P. 776. 

FN2  1933 CAL. STAT., C. 390, SEC. 1, P. 1012. 

FN3  1941 CAL. STAT., C. 539, SEC. 2, P. 1863. 

FN4  SEC. 203(B), 49 STAT. 545-546, OF THE MOTOR CARRIER ACT, 1935,
WHICH BECAME PART II, INTERSTATE COMMERCE ACT, 49 STAT. 543, 54 STAT.
919. 

FN5  SEC. 203(B)(9) OF PART II, INTERSTATE COMMERCE ACT, 54 STAT.
921, 49 U.S.C. SEC. 303(B)(9).  FOR TEXT, SEE APPENDIX B (2), INFRA, P.
783. 

FN6  EX PARTE NO. MC-35, 33 M.C.C. 69, 49 C.F.R., CUM. SUPP. SEC.
210.1. 

FN7  "THE POINT MADE ON APPEAL IS THAT THE ACTS CHARGED AND PROVED
AGAINST DEFENDANTS WERE DONE IN INTERSTATE COMMERCE AND THAT FOR THAT
REASON AND BECAUSE OF CERTAIN FEDERAL LEGISLATION, THE STATE LAW CANNOT
BE APPLIED TO THOSE ACTS.  WE FIND THIS CONTENTION WELL FOUNDED.  ... 

     .         .         .         .         . 

"RESPONDENT (THE PEOPLE OF THE STATE OF CALIFORNIA) CONCEDES AND EVEN
DEMONSTRATES THAT UNDER THE CIRCUMSTANCES OF THIS CASE THE FEDERAL LAW
AND SECTION 654.1, PENAL CODE, FORBID AND PUNISH THE SAME ACTS, BUT
CONTENDS THAT THIS IS PERMISSIBLE AND DOES NOT INVALIDATE THE STATE
LAW, EVEN AS APPLICABLE TO ACTS IN INTERSTATE COMMERCE.  IF WE LOOK TO
THE RULE IN CALIFORNIA FOR DETERMINING WHETHER A CITY ORDINANCE IS IN
CONFLICT WITH A STATE LAW AND FOR THAT REASON VOID, THE CITY BEING
LIMITED BY OUR CONSTITUTION TO SUCH POLICE REGULATIONS 'AS DO NOT
CONFLICT WITH GENERAL LAWS,' WE FIND IT ESTABLISHED THAT 'THERE IS A
CONFLICT WHERE THE ORDINANCE AND THE GENERAL LAW PUNISH PRECISELY THE
SAME ACTS.'  ...  RESPONDENT CONTENDS THAT THIS IS NOT THE RULE
APPLICABLE AS BETWEEN STATE AND FEDERAL LEGISLATION, BUT ON REVIEW OF
THE AUTHORITIES WE CONCLUDE THAT THE RULE IN INTERSTATE COMMERCE
MATTERS HAS SUBSTANTIALLY THE SAME EFFECT AS THAT ABOVE STATED.  OF
SUCH A CASE, THE UNITED STATES SUPREME COURT SAID LONG AGO:  'THIS
LEGISLATION (ENACTED BY CONGRESS) COVERS THE SAME GROUND AS THE NEW
YORK STATUTE, AND THEY CANNOT CO-EXIST.'  (NEW YORK V. COMPAGNIE
GENERALE TRANSATLANTIQUE (1883), 107 U.S. 59, 63(2 S. CT. 87, 27 L. ED.
383, 385).)  ... 

     .      .         .         .         . 

"WE CONCLUDE, THEREFORE, THAT SECTION 654.1, PENAL CODE, CANNOT BE
VALIDLY APPLIED TO TRANSPORTATION IN INTERSTATE COMMERCE, AND SINCE THE
COMPLAINT HEREIN EXPRESSLY LIMITS ITSELF TO SUCH TRANSPORTATION, IT
STATES NO OFFENSE PUNISHABLE UNDER THE SECTION AND THE DEMURRER SHOULD
HAVE BEEN SUSTAINED."  PEOPLE V. ZOOK, 87 CAL. APP.2D SUPP. 921, 922,
925, 197 P.2D 851, 852, 854. 

FN8  PEOPLE V. ZOOK, SUPRA.  THE MATERIAL STATUTORY PROVISIONS
INCLUDE:  THE PENAL CODE OF CALIFORNIA, SECS. 654.1-654.3, ADDED BY
1947 CAL. STAT. C. 1215, PP. 2723-2725.  FOR TEXT, SEE APPENDIX A,
INFRA, P. 776.  NATIONAL TRANSPORTATION POLICY, INSERTED BEFORE PART I
OF THE INTERSTATE COMMERCE ACT, 54 STAT. 899, 49 U.S.C., NOTE PRECEDING
SEC. 1.  FOR TEXT, SEE APPENDIX B (1), INFRA, P. 778.  PART II,
INTERSTATE COMMERCE ACT, SECS. 202(A), JURISDICTION IN INTERSTATE
COMMERCE COMMISSION; 202(B), POWERS OF STATES; 203(B)(9), PARTIAL AND
CONDITIONAL EXEMPTION OF CASUAL AND OCCASIONAL TRANSPORTATION; 211(A),
LICENSES, CERTIFICATES, PERMITS; 222(A), PENALTIES; 49 STAT. 543, ET
SEQ., AS AMENDED BY 52 STAT. 1029, 1237, 54 STAT. 920, ET SEQ.; 49
U.S.C. SECS. 302(A) AND (B), 303(B)(9), 311(A), 322(A).  FOR TEXT, SEE
APPENDIX B (2), INFRA, P. 781.  49 C.F.R. CUM. SUPP. SEC. 210.1, AS TO
REMOVAL OF EXEMPTION AS PROVIDED IN SEC. 203(B)(9) OF PART II,
INTERSTATE COMMERCE ACT.  FOR TEXT, SEE NOTE 23, INFRA, P. 770. 

FN9                  "COMPLAINT - FILED JANUARY 8, 1948 

"PERSONALLY APPEARED BEFORE ME, THIS 8TH DAY OF JANUARY, 1948, E.W.
HIVELY OF LOS ANGELES CITY, WHO, FIRST BEING DULY SWORN, COMPLAINS AND
SAYS:  THAT ON OR ABOUT THE 7TH DAY OF JANUARY, 1948, AT AND IN LOS
ANGELES CITY, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, A
MISDEMEANOR, TO-WIT:  VIOLATION OF SECTION 654.1 OF THE PENAL CODE OF
THE STATE OF CALIFORNIA WAS COMMITTED BY BERL B. ZOOK AND WILMER K.
CRAIG (WHOSE TRUE NAME TO AFFIANT IS UNKNOWN), WHO AT THE TIME AND
PLACE LAST AFORESAID, DID WILFULLY AND UNLAWFULLY, AT 925 WEST 7TH
STREET, IN THE CITY OF LOS ANGELES, SELL, AND OFFER TO SELL,
NEGOTIATED, PROVIDED AND ARRANGED FOR, AND ADVERTISED AND HELD
THEMSELVES OUT AS PERSONS WHO SELL AND OFFER TO SELL AND NEGOTIATE,
PROVIDE AND ARRANGE FOR THE TRANSPORTATION OF PERSONS ON AN INDIVIDUAL
FARE BASIS OVER THE PUBLIC HIGHWAYS OF THE STATE OF CALIFORNIA BY A
CARRIER OTHER THAN A CARRIER HAVING A VALID AND EXISTING CERTIFICATE OF
CONVENIENCE AND NECESSITY OR OTHER VALID AND EXISTING PERMIT FROM THE
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA OR FROM THE
INTERSTATE COMMERCE COMMISSION OF THE UNITED STATES AUTHORIZING SUCH
HOLDER OF A CERTIFICATE OR OTHER PERMIT TO PROVIDE SUCH TRANSPORTATION
OF PASSENGERS IN THAT THE SAID BERL B. ZOOK AND WILMER K. CRAIG, HELD
THEMSELVES OUT AS PERSONS WILLING TO SELL AND NEGOTIATE FOR THE ABOVE
DESCRIBED TRANSPORTATION AND SOLD TO JAMES A. MOSS AND DOROTHY MAE
ELBAG, TRANSPORTATION FROM LOS ANGELES TO FORT WORTH, TEXAS, OVER A
CARRIER WHICH WAS NOT LICENSED IN ANY MANNER BY THE STATE OF CALIFORNIA
OR THE INTERSTATE COMMERCE COMMISSION TO CARRY PASSENGERS FOR
COMPENSATION OR HIRE AND NEGOTIATED FOR THE SALE OF SUCH TRANSPORTATION
AND ARRANGED FOR SUCH TRANSPORTATION. 

"ALL OF WHICH IS CONTRARY TO THE FORM OF THE STATUTE IN SUCH CASES
MADE AND PROVIDED, AND AGAINST THE PEACE AND DIGNITY OF THE PEOPLE OF
THE STATE OF CALIFORNIA.  SAID COMPLAINANT THEREFORE PRAYS THAT A
WARRANT MAY BE ISSUED FOR THE ARREST OF SAID DEFENDANT ...... ......
(WHOSE TRUE NAME ............... TO AFFIANT IS UNKNOWN) AND THAT
............... HE ............... MAY BE DEALT WITH ACCORDING TO LAW. 

"SUBSCRIBED AND SWORN TO BEFORE ME THIS 8TH DAY OF JANUARY, 1948,
E.W. HIVELY. 

"URBAN F. EMMA, CLERK OF THE MUNICIPAL COURT OF LOS ANGELES CITY, IN
SAID COUNTY AND STATE.  BY G. LANDER (SEAL.)  DEPUTY CLERK. 

"(FILE ENDORSEMENT OMITTED)

               "ISSUED BY RAY L. CHESEBRO, CITY ATTORNEY

              "BY BOYD A. TAYLOR, DEPUTY CITY ATTORNEY." 

THE RESPONDENTS DEMURRED TO THIS COMPLAINT.  THE DEMURRER WAS
OVERRULED BY THE MUNICIPAL COURT OF THE CITY OF LOS ANGELES,
CALIFORNIA.  THE RESPONDENTS, UPON A STIPULATED STATEMENT OF FACTS,
WERE CONVICTED AND SENTENCED BY THAT COURT.  THEIR MOTION IN ARREST OF
JUDGMENT WAS DENIED.  THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF
THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, REVERSED
THE JUDGMENT AND REMANDED THE CAUSE TO THE MUNICIPAL COURT WITH
DIRECTIONS TO SUSTAIN THE DEMURRER.  THE APPEAL FROM THE ORDER IN
ARREST OF JUDGMENT WAS DISMISSED. 

FN10  CF. SEC. 654.2 OF THE PENAL CODE OF CALIFORNIA WITH SEC. 203(B)
OF THE INTERSTATE COMMERCE ACT; SEE SEC. 211(A) AS TO BROKER'S LICENSE
AND, GENERALLY, APPENDICES A AND B, INFRA, PP. 776, 778.  FOR A
DETAILED JUXTAPOSITION OF THE CONFLICT, SEE APPENDIX C, INFRA, P. 784. 

FN11  UNDER SEC. 654.3 OF THE PENAL CODE OF CALIFORNIA, ASSUMING THIS
TO BE THE RESPONDENTS' FIRST OFFENSE, EACH RESPONDENT WAS SUBJECT TO A
MAXIMUM FINE OF $250 OR IMPRISONMENT FOR NOT OVER 30 DAYS, OR BOTH.  IN
THE INSTANT CASE THE COURT FINED EACH RESPONDENT $250 AND REQUIRED
THAT, IN DEFAULT OF THE PAYMENT OF THE RESPECTIVE FINES BEFORE 5 P.M.
ON THE DATE OF JUDGMENT, THEY WERE TO BE IMPRISONED IN THE CITY JAIL IN
THE PROPORTION OF ONE DAY'S IMPRISONMENT FOR EACH $2 OF THE FINES UNTIL
PAID, NOT EXCEEDING 125 DAYS.  FOR A SECOND CONVICTION THE PUNISHMENT
PRESCRIBED IS LIMITED TO IMPRISONMENT FOR NOT LESS THAN 30 DAYS AND NOT
MORE THAN 180 DAYS.  UPON A THIRD OR SUBSEQUENT CONVICTION THE
PUNISHMENT IS LIMITED TO IMPRISONMENT FOR NOT LESS THAN 90 DAYS AND NOT
MORE THAN ONE YEAR, WITHOUT ELIGIBILITY FOR PROBATION.  VIOLATIONS OF
THE CORRESPONDING SEC. 211(A) OF THE INTERSTATE COMMERCE ACT ARE
PUNISHABLE, UNDER SEC. 222(A), BY A FINE OF NOT MORE THAN $100 FOR THE
FIRST OFFENSE AND NOT MORE THAN $500 FOR ANY SUBSEQUENT OFFENSE.  EACH
DAY OF VIOLATION CONSTITUTES A SEPARATE OFFENSE. 

FN12  "THE CONGRESS SHALL HAVE POWER  ...  TO REGULATE COMMERCE  ...
AMONG THE SEVERAL STATES, ...  "  (U.S. CONST. ART. I, SEC. 8.) 

"THIS CONSTITUTION, AND THE LAWS OF THE UNITED STATES WHICH SHALL BE
MADE IN PURSUANCE THEREOF; ...  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." 
(ID. ART. VI.) 

FN13  "  ...  IT WOULD SEEM, UPON JUST PRINCIPLES OF CONSTRUCTION,
THAT THE LEGISLATION OF CONGRESS, IF CONSTITUTIONAL, MUST SUPERSEDE ALL
STATE LEGISLATION UPON THE SAME SUBJECT; AND BY NECESSARY IMPLICATION
PROHIBIT IT.  FOR IF CONGRESS HAVE A CONSTITUTIONAL POWER TO REGULATE A
PARTICULAR SUBJECT, AND THEY DO ACTUALLY REGULATE IT IN A GIVEN MANNER,
AND IN A CERTAIN FORM, IT CANNOT BE THAT THE STATE LEGISLATURES HAVE A
RIGHT TO INTERFERE; AND, AS IT WERE, BY WAY OF COMPLEMENT TO THE
LEGISLATION OF CONGRESS, TO PRESCRIBE ADDITIONAL REGULATIONS, AND WHAT
THEY MAY DEEM AUXILIARY PROVISIONS FOR THE SAME PURPOSE.  IN SUCH A
CASE, THE LEGISLATION OF CONGRESS, IN WHAT IT DOES PRESCRIBE,
MANIFESTLY INDICATES THAT IT DOES NOT INTEND THAT THERE SHALL BE ANY
FARTHER LEGISLATION TO ACT UPON THE SUBJECT-MATTER.  ITS SILENCE AS TO
WHAT IT DOES NOT DO, IS AS EXPRESSIVE OF WHAT ITS INTENTION IS AS THE
DIRECT PROVISIONS MADE BY IT.  THIS DOCTRINE WAS FULLY RECOGNISED BY
THIS COURT, IN THE CASE OF HOUSTON V. MOORE, 5 WHEAT.  REP.  1, 21, 22;
WHERE IT WAS EXPRESSLY HELD, THAT WHERE CONGRESS HAVE EXERCISED A POWER
OVER A PARTICULAR SUBJECT GIVEN THEM BY THE CONSTITUTION, IT IS NOT
COMPETENT FOR STATE LEGISLATION TO ADD TO THE PROVISIONS OF CONGRESS
UPON THAT SUBJECT; FOR THAT THE WILL OF CONGRESS UPON THE WHOLE SUBJECT
IS AS CLEARLY ESTABLISHED BY WHAT IT HAD NOT DECLARED, AS BY WHAT IT
HAS EXPRESSED."  ID. AT PP. 617-618. 

FN14  THE CONSTITUTIONAL PRINCIPLE OF THE SUPREMACY OF FEDERAL
JURISDICTION HERE DISCUSSED PUTS A LIMITATION UPON THE LEGISLATIVE
JURISDICTION OF THE STATES IN THE ABSENCE OF CONGRESSIONAL CONSENT.  IT
DOES NOT RESTRICT COOPERATION OF THE STATES IN THE ENFORCEMENT OF
FEDERAL STATUTES.  SUCH COOPERATION, FOR EXAMPLE, IS AN APPROPRIATE
ACCOMPANIMENT OF THE NATIONAL TRANSPORTATION POLICY UNDER THE
INTERSTATE COMMERCE ACT.  THIS COOPERATION DOES NOT, HOWEVER, REQUIRE
THE CREATION OF SEPARATE STATE OFFENSES PARALLELING OR NEARLY
PARALLELING THE FEDERAL OFFENSES.  IT CALLS, RATHER, FOR COOPERATION IN
ENFORCING THE EXISTING FEDERAL OFFENSES. 

THE PETITIONER, IN AID OF ITS ARGUMENT, HAS POINTED TO THE
DECLARATION OF POLICY AS ORIGINALLY STATED IN THE MOTOR CARRIER ACT,
1935.  THERE IS NO AID FOR THE PETITIONER THERE.  THAT DECLARATION
CONTAINED THE GENERAL PHRASE, "IT IS HEREBY DECLARED TO BE THE POLICY
OF CONGRESS TO ...  COOPERATE WITH THE SEVERAL STATES AND THE DULY
AUTHORIZED OFFICIALS THEREOF AND WITH ANY ORGANIZATION OF MOTOR
CARRIERS IN THE ADMINISTRATION AND ENFORCEMENT OF THIS PART."  49 STAT.
543.  FOR FULL TEXT, SEE APPENDIX B (1), INFRA, P. 778.  WHEN THIS
DECLARATION WAS REPEALED IN 1940 AND LARGELY INCORPORATED IN A
STATEMENT OF THE "NATIONAL TRANSPORTATION POLICY," PRECEDING PART I OF
THE INTERSTATE COMMERCE ACT, CONGRESS ADDED LANGUAGE EMPHASIZING THE
FEDERAL RATHER THAN THE STATE FEATURES OF THE POLICY.  THE MATERIAL
CLAUSES THEN READ:    "IT IS HEREBY DECLARED TO BE THE NATIONAL
TRANSPORTATION POLICY OF THE CONGRESS  ...  TO COOPERATE WITH THE
SEVERAL STATES AND THE DULY AUTHORIZED OFFICIALS THEREOF; ...  ALL TO
THE END OF DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL
TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND RAIL, AS WELL AS OTHER
MEANS, ADEQUATE TO MEET THE NEEDS OF THE COMMERCE OF THE UNITED STATES,
OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE.  ... "  54 STAT.
899.  FOR FULL TEXT AND COMMENT, SEE APPENDIX B (1), INFRA, P. 778. 

IT WAS BECAUSE THE COMMISSION, IN 1942, FOUND IT NECESSARY IN ORDER
TO CARRY OUT THIS NATIONAL TRANSPORTATION POLICY THAT IT WITHDREW THE
EXEMPTION IN SEC. 203(B)(9) WHICH IS NOW BEFORE US AND WHICH
THERETOFORE, TO A LARGE EXTENT, HAD KEPT INTERSTATE TRAVEL BUREAUS AND
INTERSTATE SHARE-THE-EXPENSE OPERATORS EXEMPT FROM THE INTERSTATE
COMMERCE ACT. 

FN15  SEE APPENDIX B (1), INFRA, P. 779. 

FN16  SEC. 211(A), 49 STAT. 547, 49 U.S.C. SEC. 311(A).  FOR TEXT,
SEE APPENDIX B (2), INFRA, P. 783. 

FN17  SEE APPENDIX B (1), INFRA, P. 779. 

FN18  SEE APPENDIX B (1), INFRA, P. 779. 

FN19  ORDERS DIRECTING INVESTIGATIONS, 5 FED. REG. 1830, 1845. 

FN20  CLAUSE (9) OF SEC. 203(B) WAS AMENDED TO READ AS FOLLOWS, THE
NEW LANGUAGE BEING ITALICIZED: 

"(9)  THE CASUAL, OCCASIONAL, OR RECIPROCAL TRANSPORTATION OF
PASSENGERS OR PROPERTY BY MOTOR VEHICLE IN INTERSTATE OR FOREIGN
COMMERCE FOR COMPENSATION BY ANY PERSON NOT ENGAGED IN TRANSPORTATION
BY MOTOR VEHICLE AS A REGULAR OCCUPATION OR BUSINESS, UNLESS, IN THE
CASE OF TRANSPORTATION OF PASSENGERS, SUCH TRANSPORTATION IS SOLD OR
OFFERED FOR SALE, OR PROVIDED OR PROCURED OR FURNISHED OR ARRANGED FOR,
BY A BROKER, OR BY ANY OTHER PERSON WHO SELLS OR OFFERS FOR SALE
TRANSPORTATION FURNISHED BY A PERSON LAWFULLY ENGAGED IN THE
TRANSPORTATION OF PASSENGERS BY MOTOR VEHICLE UNDER A CERTIFICATE OR
PERMIT ISSUED UNDER THIS PART OR UNDER A PENDING APPLICATION FOR SUCH A
CERTIFICATE OR PERMIT."  54 STAT. 921, 49 U.S.C. SEC. 303(B)(9). 

FN21  "SEC.  2.  SECTION 2 OF THE ACT CITED IN THE TITLE HEREOF IS
HEREBY AMENDED TO READ AS FOLLOWS: 

 .         .         .         .         . 

"IN THE ABSENCE OF ACTION ON THE PART OF CONGRESS OR THE INTERSTATE
COMMERCE COMMISSION REGULATING OR REQUIRING LICENSES OF MOTOR CARRIER
TRANSPORTATION AGENTS ACTING AS SUCH FOR MOTOR CARRIERS CARRYING
PASSENGERS IN INTERSTATE COMMERCE (IN THIS PARAGRAPH REFERRED TO AS
'INTERSTATE MOTOR CARRIER TRANSPORTATION AGENTS') THIS ACT SHALL APPLY
TO AND REGULATE SUCH INTERSTATE MOTOR CARRIER TRANSPORTATION AGENTS TO
THE SAME EXTENT AND IN THE SAME MANNER THAT IT REGULATES OR REQUIRES
THE LICENSING OF MOTOR CARRIER TRANSPORTATION AGENTS ACTING AS SUCH FOR
MOTOR CARRIERS CARRYING PASSENGERS IN INTRASTATE COMMERCE (IN THIS
PARAGRAPH REFERRED TO AS 'INTRASTATE MOTOR CARRIER TRANSPORTATION
AGENTS')."  1941 CAL. STAT., C. 539, PP. 1862, 1863, AMENDING 1933 CAL.
STAT., C. 390, WHICH WAS THE ACT CITED IN THE TITLE OF THIS 1941 ACT. 

FN22  IT WAS PRECEDED, ON FEBRUARY 3, 1942, BY THE REPORT AND ORDER
IN EX PARTE NO. MC-36, 32 M.C.C. 267, EFFECTIVE APRIL 1, 1942, 49
C.F.R. CUM. SUPP. SEC. 200.300.  THAT ORDER PRESCRIBED THE KIND OF
INFORMATION THAT MUST BE RECORDED, UNDER FEDERAL CONTROL, BY EVERY
PASSENGER BROKER LICENSED UNDER SEC. 211 OF PART II OF THE INTERSTATE
COMMERCE ACT. 

FN23      "ORDER 

"AT A SESSION OF THE INTERSTATE COMMERCE COMMISSION, DIVISION 5, HELD
AT ITS OFFICE IN WASHINGTON, D.C., ON THE 21ST DAY OF MARCH, A.D.
1942. 

"EX PARTE NO. MC-35 

"EXEMPTION OF CASUAL, OCCASIONAL, OR RECIPROCAL TRANSPORTATION OF
PASSENGERS BY MOTOR VEHICLE 

"IT APPEARING, THAT BY ORDER OF MAY 1, 1940, THE COMMISSION, DIVISION
5, ENTERED INTO AN INVESTIGATION INTO PRACTICES WITH RESPECT TO THE
CASUAL, OCCASIONAL, OR RECIPROCAL TRANSPORTATION OF PASSENGERS IN
INTERSTATE OR FOREIGN COMMERCE FOR COMPENSATION FOR THE PURPOSE OF
DETERMINING WHETHER THE EXEMPTION OF SUCH TRANSPORTATION AS PROVIDED IN
TO MAKE APPLICABLE ALL PROVISIONS OF THE ACT TO SUCH TRANSPORTATION
WHEN IT IS SOLD, OR OFFERED FOR SALE, OR PROVIDED, OR PROCURED, OR
FURNISHED, OR ARRANGED FOR BY ANY PERSON WHO HOLDS HIMSELF OR ITSELF
OUT AS ONE WHO SELLS, OR OFFERS FOR SALE TRANSPORTATION WHOLLY OR
PARTIALLY SUBJECT TO THE ACT, OR WHO NEGOTIATES FOR, OR HOLDS HIMSELF
OUT BY SOLICITATION, ADVERTISEMENT, OR OTHERWISE, AS ONE WHO SELLS,
PROVIDES, FURNISHES, CONTRACTS, OR ARRANGES FOR, SUCH TRANSPORTATION; 

"AND IT FURTHER APPEARING, THAT A FULL INVESTIGATION OF THE MATTERS
AND THINGS INVOLVED HAS BEEN MADE AND THAT THE DIVISION, ON THE DATE
HEREOF, HAS MADE AND FILED A REPORT CONTAINING ITS FINDINGS OF FACT AND
CONCLUSIONS THEREON, WHICH REPORT IS HEREBY REFERRED TO AND MADE A PART
HEREOF: 

"IT IS ORDERED, THAT THE CODE OF FEDERAL REGULATIONS BE, AND IT IS
HEREBY, AMENDED BY ADDING THE FOLLOWING: 

"TITLE 49 - TRANSPORTATION AND RAILROADS 

"CHAPTER 1- INTERSTATE COMMERCE COMMISSION 

"SUBCHAPTER B - CARRIERS BY MOTOR VEHICLE 

"PART 210 - EXEMPTIONS 

"SEC. 210.  1 CASUAL, OCCASIONAL, OR RECIPROCAL TRANSPORTATION OF
PASSENGERS FOR COMPENSATION WHEN SUCH TRANSPORTATION IS SOLD OR
ARRANGED BY ANYONE FOR COMPENSATION.  THE PARTIAL EXEMPTION FROM
REGULATION UNDER THE PROVISIONS OF PART II OF THE INTERSTATE COMMERCE
ACT OF THE CASUAL, OCCASIONAL, AND RECIPROCAL TRANSPORTATION OF
PASSENGERS BY MOTOR VEHICLE IN INTERSTATE OR FOREIGN COMMERCE FOR
COMPENSATION AS PROVIDED IN SECTION 203(B)(9) OF THE ACT BE, AND IT IS
HEREBY, REMOVED TO THE EXTENT NECESSARY TO MAKE APPLICABLE ALL
PROVISIONS OF PART II OF THE ACT TO SUCH TRANSPORTATION WHEN SOLD OR
OFFERED FOR SALE, OR PROVIDED OR PROCURED OR FURNISHED OR ARRANGED FOR,
BY ANY PERSON WHO SELLS, OFFERS FOR SALE, PROVIDES, FURNISHES,
CONTRACTS, OR ARRANGES FOR SUCH TRANSPORTATION FOR COMPENSATION OR AS A
REGULAR OCCUPATION OR BUSINESS.  (SEC. 203(B)(9), 49 STAT. 546, 54
STAT. 919, 921; 49 U.S.C. 303(B)(9)). 

"IT IS FURTHER ORDERED, THAT THIS ORDER SHALL BECOME EFFECTIVE MAY
15, 1942. 

"AND IT IS FURTHER ORDERED, THAT NOTICE OF THIS ORDER BE GIVEN TO THE
GENERAL PUBLIC AFFECTED THEREBY BY PUBLISHING IT IN THE FEDERAL
REGISTER AND BY DEPOSITING COPIES THEREOF IN THE OFFICE OF THE
SECRETARY OF THE COMMISSION IN WASHINGTON, D.C. 

"BY THE COMMISSION, DIVISION 5. 

(SIGNED) "W. P. BARTEL

 "SECRETARY." 

WE ARE INDEBTED TO THE INTERSTATE COMMERCE COMMISSION FOR THE FULL
TEXT OF THE ABOVE ORDER.  THE AMENDMENT TO THE CODE OF FEDERAL
REGULATIONS MADE BY THIS ORDER APPEARS IN 49 C.F.R. CUM. SUPP. SEC.
210.1. 

FN24  SEE ALSO, PEOPLE V. EDMONDSON, DECIDED MARCH 15, 1946, BY THE
APPELLATE DEPARTMENT OF THE SUPERIOR COURT, COUNTY OF LOS ANGELES,
CALIFORNIA.  THE OPINION OF THAT COURT IS NOT OFFICIALLY REPORTED BUT
APPEARS IN 1946 L.A. CRIM. APP. 2160.  CERT. DENIED, OCTOBER 14, 1946,
329 U.S. 716. 

FN25  SEE NOTE 7, SUPRA, P. 730. 

FN26 SEE APPENDIX B (1), SUPRA.
..END :














POWER COMM'N V. INTERSTATE GAS CO., 336 U.S. 577 


ARGUED JANUARY 11, 1949.  - DECIDED APRIL 18, 1949.  - 166 F.2D 796,
REVERSED. 


AN ORDER ISSUED BY THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS
ACT DIRECTED A NATURAL GAS COMPANY TO REDUCE ITS RATES ON INTERSTATE
SALES OF NATURAL GAS FOR RESALE.  PENDING JUDICIAL REVIEW, THE COURT OF
APPEALS ISSUED A STAY ORDER PURSUANT TO WHICH THE COMPANY PAID INTO THE
REGISTRY OF THE COURT THE MONTHLY DIFFERENCE BETWEEN THE EXISTING RATES
AND THE LOWER RATES PRESCRIBED BY THE COMMISSION.  THE RATE ORDER WAS
FINALLY SUSTAINED AND THE COURT OF APPEALS ORDERED THE FUND DISTRIBUTED
TO THE PIPE-LINE COMPANIES WHICH WERE THE IMMEDIATE PURCHASERS.  HELD: 

1.  APART FROM THE CASE OF A PIPE-LINE COMPANY CLAIMING THAT ITS
RATES HAVE BEEN SO LOW THAT IT IS ENTITLED AS A MATTER OF LAW TO SHARE
IN THE REFUND AND THE CASE OF A PIPE-LINE COMPANY WHICH HAS PASSED ON
TO ITS CUSTOMERS THE RATE REDUCTIONS FROM THE DATE OF THE COMMISSION'S
ORDER, IT IS THE DUTY OF THE COURT TO LOOK BEYOND THE PIPE-LINE
COMPANIES FOR THE RIGHTFUL CLAIMANTS OF THE FUND.  PP. 580-583. 

(A)  SINCE THE PIPE-LINE COMPANIES THEMSELVES ARE ENGAGED IN THE
TRANSPORTATION OR SALE AT WHOLESALE OF NATURAL GAS IN INTERSTATE
COMMERCE AND ARE THUS SUBJECT TO THE JURISDICTION OF THE FEDERAL POWER
COMMISSION, THEIR CLAIMS TO THE FUND ARE DETERMINABLE SOLELY WITH
REFERENCE TO FEDERAL LAW.  CENTRAL STATES CO. V. MUSCATINE, 324 U.S.
138, DISTINGUISHED.  PP. 580-581. 

(B)  THE FACT THAT THE FUND CONSISTED OF PAYMENTS MADE BY THE PIPE
LINE COMPANIES DOES NOT ENTITLE THEM TO THE FUND AS OF RIGHT.  P. 581. 

(C)  THE AIM OF THE NATURAL GAS ACT WAS TO PROTECT ULTIMATE CONSUMERS
OF NATURAL GAS FROM EXCESSIVE CHARGES.  P. 581. 

(D)  THE RESPONSIBILITY OF THE COURT TO CORRECT WHAT HAS BEEN
WRONGFULLY DONE BY VIRTUE OF ITS PROCESS CAN NOT BE DISCHARGED BY
PAYMENT OF THE FUND TO THOSE WHO SHOW NO LOSS BY REASON OF THE COURT'S
ACTION.  P. 582. 

(E)  THE FUND HAVING BEEN CREATED BY THE COURT THROUGH EXERCISE OF
EQUITY POWERS, ITS DISPOSITION SHOULD BE MADE IN ACCORD WITH EQUITABLE
PRINCIPLES.  PP. 582-583. 

2.  IF DISTRIBUTION OF THE FUND IS TO BE MADE TO CLAIMANTS OTHER THAN
THE PIPE-LINE COMPANIES, AND IF LOCAL LAW PROVIDES A STANDARD FOR
DETERMINING WHICH OF TWO OR MORE CLAIMANTS WOULD HAVE BEEN ENTITLED TO
THE BENEFITS OF THE RATE REDUCTION, THE FEDERAL COURT SHOULD APPLY SUCH
LOCAL LAW.  P. 583. 

3.  IF CLEAR AND SPEEDY STATE REMEDIES ARE AVAILABLE, THE FEDERAL
COURT MIGHT HOLD THE FUND UNTIL THOSE HAVING THE FINAL SAY ON THE STATE
LAW QUESTIONS HAVE SPOKEN.  P. 583. 

4.  BUT IN ABSENCE OF SUCH A SHOWING, THE FEDERAL COURT IN THE
INTEREST OF DISPATCH SHOULD PROCEED TO DETERMINE THE QUESTIONS, RELYING
ON SUCH SOURCES OF LOCAL LAW AS MAY BE AVAILABLE, INCLUDING INFORMATION
FROM STATE REGULATORY AGENCIES.  P. 584. 

5.  THE FEDERAL COURT MAY IN ITS DISCRETION DISBURSE THE FUNDS
DIRECTLY TO EITHER THE LOCAL DISTRIBUTING COMPANIES OR THE ULTIMATE
CONSUMERS OR WORK OUT AN ADMINISTRATIVE SCHEME WHEREBY THE DISTRIBUTION
IS MADE PURSUANT TO DIRECTIVES OF STATE AGENCIES.  P. 584. 

6.  DISTRIBUTION OF THE FUND IS AN ADMINISTRATIVE MATTER INVOLVING
THE EXERCISE OF AN INFORMED JUDGMENT BY THE FEDERAL COURT AND SHOULD
HAVE THE FLEXIBILITY AND DISPATCH WHICH CHARACTERIZE THE ADMINISTRATIVE
PROCESS.  P. 584. 

FEDERAL POWER COMMISSION ET AL. V. INTERSTATE NATURAL GAS CO. ET AL. 

NO. 109.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT* . 

*TOGETHER WITH NO. 188, PUBLIC SERVICE COMMISSION OF MISSOURI V.
INTERSTATE NATURAL GAS CO. ET AL.; NO. 209, MEMPHIS LIGHT, GAS & WATER
DIVISION V. INTERSTATE NATURAL GAS CO. ET AL.; AND NO. 212, ILLINOIS
COMMERCE COMMISSION ET AL. V. INTERSTATE NATURAL GAS CO. ET AL., ALSO
ON CERTIORARI TO THE SAME COURT. 

PENDING REVIEW OF AN ORDER OF THE FEDERAL POWER COMMISSION DIRECTING
A NATURAL GAS COMPANY TO REDUCE ITS INTERSTATE WHOLESALE RATES, THE
COURT OF APPEALS ISSUED A STAY ORDER UNDER WHICH A FUND REPRESENTING
THE DIFFERENCE BETWEEN THE RATES CHARGED AND THE LOWER RATES ORDERED
ACCUMULATED IN THE REGISTRY OF THE COURT.  THE ORDER OF THE COMMISSION
HAVING BEEN FINALLY SUSTAINED, 156 F.2D 949, 331 U.S. 682, THE COURT OF
APPEALS ORDERED DISTRIBUTION OF THE FUND TO THE PIPE-LINE COMPANIES
WHICH WERE THE IMMEDIATE PURCHASERS FROM THE NATURAL GAS COMPANY.  166
F.2D 796.  PETITIONERS HERE HAD INTERVENED IN OPPOSITION TO
DISTRIBUTION TO THE PIPE-LINE COMPANIES.  THIS COURT GRANTED
CERTIORARI.  335 U.S. 808.  REVERSED, P. 584. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, HERE ON CERTIORARI, INVOLVES THE PROPER DISPOSITION OF A
FUND ACCUMULATED UNDER A STAY ORDER ISSUED BY THE COURT OF APPEALS
PENDING REVIEW OF A RATE ORDER ISSUED BY PETITIONER.  THAT ORDER
REDUCED THE RATES FOR NATURAL GAS ON SALES BY INTERSTATE NATURAL GAS
CO. TO MISSISSIPPI RIVER FUEL CORP., SOUTHERN NATURAL GAS CO., AND
UNITED GAS PIPE LINE CO. FOR RESALE TO MEMPHIS NATURAL GAS CO., AND ON
SALES BY INTERSTATE TO MEMPHIS.  THE COURT OF APPEALS SUSTAINED THE
ORDER, 156 F.2D 949, AND WE AFFIRMED ITS JUDGMENT, 331 U.S. 682. 

INTERSTATE DEPOSITED IN THE REGISTRY OF THE COURT PENDING REVIEW THE
MONTHLY DIFFERENCE BETWEEN PAYMENTS UNDER EXISTING RATES AND THOSE
REQUIRED UNDER THE ORDER OF THE COMMISSION.  INTERSTATE HAS NOW MOVED
IN THE COURT OF APPEALS FOR A DISTRIBUTION OF THE FUND.  THE PIPE-LINE
COMPANIES - MISSISSIPPI, SOUTHERN, UNITED,  FN1  AND MEMPHIS - CLAIMED
THE FUND AND ASKED THAT IT BE DISTRIBUTED TO THEM.  PETITIONER AND
CERTAIN STATE AND MUNICIPAL AGENCIES ALSO INTERVENED, OPPOSING
DISTRIBUTION TO THE PIPE-LINE COMPANIES AND CLAIMING THAT IT SHOULD BE
MADE TO THE ULTIMATE CONSUMERS OF THE GAS OR TO SUCH OTHERS AS MAY BE
EQUITABLY ENTITLED TO IT.  THE COURT OF APPEALS, RELYING ON CENTRAL
STATES CO. V. MUSCATINE, 324 U.S. 138, ORDERED THE FUND TO BE PAID TO
THOSE FROM WHOM INTERSTATE WRONGFULLY EXACTED THE PAYMENTS, VIZ., THE
PIPE-LINE COMPANIES, WITHOUT PREJUDICE TO SUCH RIGHTS AS OTHERS MAY
HAVE TO HOLD THOSE COMPANIES ACCOUNTABLE FOR THE AMOUNTS INVOLVED.  166
F.2D 796. 

FIRST.  HERE, UNLIKE CENTRAL STATES CO. V. MUSCATINE, SUPRA, THE
DISTRIBUTING COMPANIES THAT SEEK RETURN OF THE FUND CREATED FROM THEIR
PAYMENTS OF THE EXCESSIVE RATES ARE SUBJECT TO THE JURISDICTION OF THE
FEDERAL POWER COMMISSION, SINCE THEY ARE NATURAL GAS COMPANIES ENGAGED
IN THE TRANSPORTATION OR SALE AT WHOLESALE OF NATURAL GAS IN INTERSTATE
COMMERCE.  SEE ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S. 498. 
THE CLAIMS OF THESE PIPE-LINE COMPANIES TO THE FUND ARE THEREFORE
DETERMINABLE SOLELY WITH REFERENCE TO FEDERAL LAW, SINCE THE NATURAL
GAS ACT, 52 STAT. 821, 15 U.S.C. SEC. 717, IS DESIGNED TO REGULATE THE
SEGMENT OF THE INDUSTRY OCCUPIED BY SUCH DISTRIBUTORS.  SEE INTERSTATE
NATURAL GAS CO. V. FEDERAL POWER COMMISSION, 331 U.S. 682, 689-690;
FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO., 320 U.S. 591, 610. 
WE MAY NOT THEREFORE SUSTAIN THE ACTION OF THE COURT OF APPEALS UNLESS
IT IS CLEAR AS A MATTER OF FEDERAL LAW THAT THE PIPE-LINE COMPANIES ARE
ENTITLED TO THE FUND. 

THE BASIS OF THE CLAIM STATED IN THEIR PETITIONS FOR INTERVENTION IS
THAT THEY ARE ENTITLED TO THE FUND AS OF RIGHT, SINCE IT WAS CREATED BY
THEIR PAYMENTS.  BUT WE WOULD BE UNMINDFUL OF THE PURPOSE OF THE ACT
AND THE RESPONSIBILITY OF THE FEDERAL COURTS UNDER IT, IF WE SO RULED. 
THE AIM OF THE ACT WAS TO PROTECT ULTIMATE CONSUMERS OF NATURAL GAS
FROM EXCESSIVE CHARGES.  SEE FEDERAL POWER COMMISSION V. HOPE NATURAL
GAS CO., SUPRA, AT 610, 612.  THEY WERE THE INTENDED BENEFICIARIES OF
RATE REDUCTIONS ORDERED BY THE FEDERAL COMMISSION, THOUGH STATE
MACHINERY MIGHT HAVE TO BE INVOKED TO OBTAIN LOWER RATES AT THE
CONSUMER LEVEL.  THE RATES CHARGED A WHOLESALER ARE PART OF ITS COSTS,
REFLECTED IN ITS RATE BASE.  REDUCTION OF THOSE COSTS NORMALLY WILL
LEAD IN DUE COURSE TO REDUCTION IN ITS RESALE RATES, UNLESS WE ARE TO
ASSUME THAT THE PASSAGE OF THE NATURAL GAS ACT WAS AN EXERCISE IN
FUTILITY.  IT IS OF COURSE CONCEIVABLE THAT A WHOLESALER MIGHT BE
WARRANTED IN KEEPING ALL OR A PART OF THE RATE REDUCTION UNDER THE
STANDARDS OF REASONABLENESS PRESCRIBED BY THE ACT.  BUT A COURT WOULD
NOT BE WARRANTED IN ASSUMING THAT THE RATES WHICH HAVE BEEN CHARGED ARE
SO LOW AS TO BE UNREASONABLE.  NO SUCH PRESUMPTION ATTENDS RATES WHICH
HAVE BEEN FIXED PURSUANT TO RATE ORDERS OF THE COMMISSION.  NOR CAN WE
MAKE ANY SUCH PRESUMPTION AS RESPECTS RATES FIXED BY THE UTILITIES
THEMSELVES WITHOUT THE COMPULSION OF A RATE ORDER.  FOR EXPERIENCE DOES
NOT INDICATE THAT UTILITIES ARE WONT TO CHARGE THEMSELVES OUT OF
BUSINESS. 

THE PIPE-LINE COMPANIES IN THEIR PETITIONS FOR INTERVENTION MAKE NO
CLAIM THAT THEIR RATES HAVE BEEN SO LOW THAT THEY ARE ENTITLED TO THESE
REFUNDS AS A MATTER OF LAW.  WERE THAT ISSUE TENDERED, THE COURT WOULD
NEED TO RESOLVE IT AND COULD CALL UPON THE FEDERAL POWER COMMISSION FOR
INFORMATION RELEVANT TO IT.  MOREOVER, IF THE PIPE-LINE COMPANIES
PASSED ON TO THEIR CUSTOMERS THE RATE REDUCTIONS FROM THE DATE OF THE
COMMISSION'S ORDER (AS MISSISSIPPI ALLEGES IT DID), THEY WOULD BE
ENTITLED TO A RETURN OF THE PAYMENTS THEY MADE INTO THE FUND.  THEY
WOULD THEN HAVE DONE ALL THAT WAS IN THEIR POWER TO EFFECTUATE THE
POLICY OF THE ACT IN THIS REGARD.  BUT APART FROM THOSE EXCEPTIONS, IT
IS THE DUTY OF THE COURT TO LOOK BEYOND THOSE COMPANIES FOR THE
RIGHTFUL CLAIMANTS OF THE FUND.  IT IS THE RESPONSIBILITY OF THE COURT
WHICH DISTRIBUTES THE FUND ACCUMULATED UNDER ITS STAY ORDER "TO CORRECT
THAT WHICH HAS BEEN WRONGFULLY DONE BY VIRTUE OF ITS PROCESS."  UNITED
STATES V. MORGAN, 307 U.S. 183, 197.  THAT RESPONSIBILITY PLAINLY
CANNOT BE DISCHARGED BY PAYMENT OF THE FUND TO THOSE WHO SHOW NO LOSS
BY REASON OF THE COURT'S ACTION. 

IT IS SAID THAT THE FEDERAL COURT COULD NOT BY-PASS THE PIPE-LINE
COMPANIES WITHOUT UNDERTAKING TO PASS ON THE REASONABLENESS OF THE
RATES WHICH THEY HAVE CHARGED - A MATTER BEYOND ITS COMPETENCE EXCEPT
ON REVIEW OF ORDERS OF THE COMMISSION.  BUT IT IS NOT RATE-MAKING TO
DETERMINE THE EQUITY OF THE CLAIM OF THE PIPE-LINE COMPANIES TO THE
FUND.  THE FEDERAL COURT, THROUGH EXERCISE OF ITS POWER UNDER SEC. 19
OF THE ACT, ISSUED THE STAY ORDER UNDER WHICH THE FUND WAS
ACCUMULATED.  WHEN A FEDERAL COURT OF EQUITY GRANTS RELIEF BY WAY OF
INJUNCTION IT HAS A RESPONSIBILITY TO PROTECT ALL THE INTERESTS WHOM
ITS INJUNCTION MAY AFFECT.  INLAND STEEL CO. V. UNITED STATES, 306 U.S.
153.  IT ASSUMES THE DUTY TO MAKE DISPOSITION OF THE FUND IN ACCORD
WITH EQUITABLE PRINCIPLES.  UNITED STATES V. MORGAN, SUPRA, AT 191.  IF
IN A PARTICULAR CASE THE COURT REACHES THE QUESTION OF REASONABLENESS
OF RATES, IT DOES SO ONLY FOR PURPOSES OF DISTRIBUTING THE FUND FOR
WHOSE CREATION IT ALONE WAS RESPONSIBLE.  IT DOES NOT FIX OR PRESCRIBE
RATES FOR THE PAST OR THE FUTURE.  THE REASONABLENESS OF RATES CHARGED
BY THE COMPANIES WHO CLAIM THE FUND IS WHOLLY ANCILLARY TO THE PROBLEM
OF DETERMINING WHAT CLAIMANTS ARE EQUITABLY ENTITLED TO SHARE IN IT.
SEE ATLANTIC COAST LINE R. CO. V. FLORIDA, 295 U.S. 301; UNITED STATES
V. MORGAN, SUPRA. 

SECOND.  THE PROBLEM IS SOMEWHAT MORE COMPLICATED IF DISTRIBUTION OF
THE FUND IS TO BE MADE TO CLAIMANTS OTHER THAN THE PIPE-LINE
COMPANIES.  THE LATTER SELL GAS TO AT LEAST TWO TYPES OF CUSTOMERS -
INDUSTRIAL USERS OVER WHOSE RATES THE FEDERAL POWER COMMISSION HAS NO
JURISDICTION N2 AND OVER WHICH STATE REGULATORY BODIES MAY OR MAY NOT,
DEPENDING ON LOCAL LAW; AND NUMEROUS DISTRIBUTING COMPANIES SELLING TO
CUSTOMERS IN EIGHT STATES.  IF THE PIPE-LINE COMPANIES HAD PASSED THE
RATE REDUCTIONS ON TO THE DISTRIBUTING COMPANIES, THOSE REDUCTIONS MAY
OR MAY NOT HAVE REACHED THE ULTIMATE CONSUMERS.  WE LIKEWISE DO NOT
KNOW WHETHER THE REDUCTIONS WOULD HAVE REACHED THE INDUSTRIAL USERS
EITHER BY TERMS OF THE CONTRACTS OR BY VIRTUE OF THE ASSERTION OF
REGULATORY AUTHORITY. 

IF IN THIS SITUATION LOCAL LAW PROVIDES A STANDARD FOR DETERMINING
WHICH OF TWO OR MORE CLAIMANTS WOULD HAVE BEEN ENTITLED TO THE BENEFITS
OF THE RATE REDUCTION, THE FEDERAL COURT SHOULD APPLY IT.  IF CLEAR AND
SPEEDY STATE REMEDIES ARE AVAILABLE, THE FEDERAL COURT MIGHT HOLD THE
FUND UNTIL THOSE HAVING THE FINAL SAY ON THE STATE LAW QUESTIONS HAVE
SPOKEN.  CF. THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478, 483;
SPECTOR MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101.  BUT IN ABSENCE OF SUCH
A SHOWING THE FEDERAL COURT IN THE INTEREST OF DISPATCH SHOULD PROCEED
TO DETERMINE THE QUESTIONS, RELYING ON SUCH SOURCES OF LOCAL LAW AS MAY
BE AVAILABLE, INCLUDING INFORMATION FROM STATE REGULATORY AGENCIES. 
THE FEDERAL COURT MAY IN ITS DISCRETION DISBURSE THE FUNDS DIRECTLY TO
EITHER THE LOCAL DISTRIBUTING COMPANIES OR THE ULTIMATE CONSUMERS OR
WORK OUT AN ADMINISTRATIVE SCHEME WHEREBY THE DISTRIBUTION IS MADE
PURSUANT TO DIRECTIVES OF STATE AGENCIES. 

IN CONCLUSION, THE TASK OF THE FEDERAL COURT IN DISTRIBUTING THE FUND
ACCUMULATED BY VIRTUE OF ITS STAY ORDER IS TO UNDO THE WRONG WHICH ITS
PROCESS CAUSED.  THE BASIC PROBLEM, THEREFORE, IS NOT TO FIX RATES BUT
TO DETERMINE WHO SUFFERED A LOSS AS A RESULT OF THE COURT'S ACTION IN
GRANTING THE STAY.  WHAT IN FACT WOULD HAVE HAPPENED AS A CONSEQUENCE
OF FEDERAL OR STATE LAW IF THE STAY HAD NOT BEEN ISSUED, NO ONE CAN
KNOW FOR A CERTAINTY.  BUT THE FEDERAL COURT MUST MAKE ITS
PROGNOSTICATION, WHETHER AN EXCURSION INTO FEDERAL OR STATE LAW
QUESTIONS IS ENTAILED.  DISTRIBUTION OF THE FUND SHOULD NOT INVOLVE
PROLONGED LITIGATION.  IT IS AN ADMINISTRATIVE MATTER INVOLVING THE
EXERCISE OF AN INFORMED JUDGMENT BY THE FEDERAL COURT AND SHOULD HAVE
THE FLEXIBILITY AND DISPATCH WHICH CHARACTERIZE THE ADMINISTRATIVE
PROCESS.  REVERSED. 

FN1  UNITED CLAIMED AN ALLOCABLE SHARE ON BEHALF OF MEMPHIS TO WHICH
IT HAD RESOLD THE GAS WHICH IT HAD PURCHASED FROM INTERSTATE. 

FN2  SEC. 1(B). 

MR. JUSTICE FRANKFURTER, CONCURRING. 

WHILE AGREEING IN SUBSTANCE WITH MR. JUSTICE DOUGLAS' OPINION,
BECAUSE OF THE CONFLICT OF VIEWS TO WHICH THE CASE HAS GIVEN RISE I
DEEM IT DESIRABLE TO SPELL OUT WITH PARTICULARITY WHAT I REGARD AS THE
CONTROLLING CONSIDERATIONS. 

1.  THE CONTROVERSY CONCERNS THE PROPER DISPOSITION OF A FUND
IMPOUNDED IN THE COURT OF APPEALS BY VIRTUE OF THE COURT'S SUSPENSION
OF A RATE REDUCTION ORDER OF THE FEDERAL POWER COMMISSION.  INTERSTATE
PAID INTO THE REGISTRY OF THE COURT THE SUMS COLLECTED BY IT IN EXCESS
OF THE RATES FIXED BY THE COMMISSION.  AFTER THE ORDER WAS FINALLY
SUSTAINED INTERSTATE MOVED THE COURT FOR DISTRIBUTION OF THE FUND TO
THE THREE COMPANIES WHICH, AS CUSTOMERS OF INTERSTATE, PAID THE
UNLAWFULLY EXACTED AMOUNTS.  THE MOTION WAS SUPPORTED BY THE THREE
PURCHASERS FROM INTERSTATE; IT WAS RESISTED BY THE FEDERAL POWER
COMMISSION WHICH ASKED THAT DISTRIBUTION BE MADE TO THE ULTIMATE
CONSUMERS; IT WAS ALSO RESISTED BY THE CITY OF JACKSON AND BY THE
REGULATORY COMMISSIONS OF ILLINOIS AND MISSOURI, WHICH LIKEWISE URGED
THAT DISTRIBUTION BE MADE TO THE ULTIMATE CONSUMERS WITHIN THEIR
RESPECTIVE TERRITORIES.  ONE OF INTERSTATE'S PURCHASERS, UNITED GAS
PIPE LINE COMPANY, ALTHOUGH INTERVENING AS A CLAIMANT, ADVISED THE
COURT THAT IT WOULD PASS ON ITS SHARE OF THE REFUND TO THE MEMPHIS
NATURAL GAS COMPANY, TO WHICH UNITED HAD RESOLD THE GAS PURCHASED FROM
INTERSTATE. 

2.  THE COURT BELOW THUS HAD BEFORE IT CLAIMS UPON THE FUND BY TWO
IMMEDIATE PURCHASERS FROM INTERSTATE, WHICH ASSERTED THEIR RIGHT TO THE
AMOUNTS PAID INTO THE FUND BY THEM, BY A THIRD PURCHASER FROM
INTERSTATE WHICH MADE CLAIM UPON THE FUND BUT MERELY AS A CONDUIT FOR
ITS PASSAGE TO A SUBPURCHASER, AND BY PUBLIC AGENCIES - NATIONAL, STATE
AND MUNICIPAL - WHICH URGED THAT THE ENTIRE FUND BE DISTRIBUTED TO THE
ULTIMATE CONSUMERS. 

THE RESPONDENTS - INTERSTATE AND THE THREE IMMEDIATE PURCHASERS FROM
IT - BASICALLY RELY ON SOUTHERN PACIFIC CO. V. DARNELL-TAENZER LUMBER
CO., 245 U.S. 531, IN URGING THAT THE FUND SHOULD GO TO THE IMMEDIATE
DEPOSITORS FROM WHOM IT WAS FOUND TO HAVE BEEN WRONGFULLY EXACTED. 
THEY DEEM THAT CASE TO BE THE FOUNDATION OF OUR DECISION IN CENTRAL
STATES ELECTRIC CO. V. CITY OF MUSCATINE, 324 U.S. 138.  THE GOVERNMENT
ON THE OTHER HAND ASKS THAT THE MUSCATINE CASE BE OVERRULED AND THAT
THE FUND SHOULD GO TO THE ULTIMATE CONSUMERS. 

IN THE MUSCATINE CASE THIS COURT REJECTED THE NOTION THAT AS BETWEEN
A UTILITY LIKE INTERSTATE AND ITS IMMEDIATE PURCHASERS A RATE REDUCTION
MAKES THE DISTRIBUTORS MERE CONDUITS OF THE REDUCTION FOR THE EXCLUSIVE
BENEFIT OF THE ULTIMATE CONSUMERS.  IN SHORT, THE RATIONALE OF THE
MUSCATINE CASE IS THAT THAT WHICH IS IN FACT NOT TRUE IN THE PROCESS OF
RATE-FIXING OUGHT NOT TO BE ERECTED INTO A PRINCIPLE OF LAW MERELY
BECAUSE THE EFFECT OF A RATE REDUCTION IS POSTPONED THROUGH AN EXERCISE
OF THE RIGHT TO JUDICIAL REVIEW AFFORDED BY THE CONGRESS.    3.  IT
WOULD, THEREFORE, APPEAR TO BE CLEAR THAT THE JUDICIAL DUTY IS TO DEAL
FAIRLY WITH A TRUST FUND HELD TO AWAIT THE OUTCOME OF JUDICIAL REVIEW
TO THE END THAT IT MAY BE DISTRIBUTED ON THE BASIS OF WHAT WOULD HAVE
TAKEN PLACE HAD THE POWER COMMISSION'S ORDER GONE INTO EFFECT AT ONCE. 
THE TASK, THEN, FOR THE COURT OF APPEALS IS TO RECONSTRUCT, AS FAR AS
IT CAN POSSIBLY BE DONE, WHAT WOULD HAVE HAPPENED HAD NO FUND ACCRUED. 
REASONS OF EQUITY PRODUCED THE FUND; EQUITABLE CONSIDERATIONS MUST
DETERMINE ITS DISTRIBUTION.  THE GOVERNING PRINCIPLE IS THAT OF UNJUST
ENRICHMENT.  SINCE THE TASK OF THE COURT IS TO PLACE THE PARTIES IN THE
POSITION IN WHICH THEY WOULD HAVE BEEN HAD THERE NOT BEEN A
POSTPONEMENT OF THE EFFECTIVE DATE OF THE RATE REDUCTION, IT IS NOW THE
DUTY OF THE COURT TO MAKE THAT RETROSPECTIVE DETERMINATION NOT BY
UNFOUNDED ASSUMPTIONS ERECTED INTO RIGID LEGAL RULES, BUT BY AN
ASCERTAINMENT OF WHAT ACTUALLY WOULD HAVE HAPPENED CONTEMPORANEOUSLY
HAD PURCHASERS FROM INTERSTATE OBTAINED THEIR GAS AT THE LOWER RATE. 

4.  A UTILITY IS ENTITLED TO CHARGE A REASONABLE RATE.  IT WOULD BE
DEALING WITH A FICTION AND NOT A FACT TO HOLD AS A MATTER OF LAW EITHER
THAT THE IMMEDIATE PURCHASERS FROM INTERSTATE SHOULD KEEP THE BENEFIT
OF THE REDUCED RATE OR THAT IT SHOULD ALL GO TO THE ULTIMATE
CONSUMERS.  WHETHER THE THREE PURCHASERS OR THE INTERVENING
DISTRIBUTORS ARE ENTITLED TO ANY PART OF THE REDUCTION DEPENDS ON THE
ASCERTAINABLE CONDITION OF THE THREE PURCHASERS FROM INTERSTATE AND THE
INTERMEDIATE PURCHASERS FROM THEM.  A MERELY COMPENSATORY RATE BELOW
WHICH NO RATE MAY BE FIXED BY A REGULATORY COMMISSION MAY NOT BE A
REASONABLE RATE.  SEE BRANDEIS, J., IN SOUTHWESTERN BELL TELEPHONE CO.
V. PUBLIC SERVICE COMMISSION, 262 U.S. 276, 296.  FOR VARIOUS REASONS A
UTILITY MAY CHARGE, AS IS WELL KNOWN, LESS THAN WHAT AS A MATTER OF LAW
IT COULD BE COMPELLED TO CHARGE.  ON THE OTHER HAND, IT MAY CHARGE THE
MAXIMUM OF WHAT IS REASONABLE. 

TO DISTRIBUTE THE ENTIRE FUND AMONG THE IMMEDIATE PURCHASERS FROM
INTERSTATE MAY GIVE THEM A COMPLETE WINDFALL, SINCE THEY MIGHT HAVE
BEEN COMPELLED, UNDER THEIR DUTY TO CHARGE ONLY A REASONABLE RATE, TO
REDUCE THEIR RATES SO AS TO KEEP NONE OF THE INTERSTATE REDUCTIONS. 
SINCE ALL THESE PURCHASERS ARE SUBJECT TO REGULATION BY THE POWER
COMMISSION, THE POWER COMMISSION COULD HAVE ORDERED SUCH RATE
REDUCTIONS IN WHOLE OR IN PART.  ON THE OTHER HAND, TO TAKE IT ALL AWAY
FROM THEM NOW MIGHT WORK AN INJUSTICE BECAUSE THEY MIGHT HAVE BEEN
ALLOWED TO KEEP AT LEAST PART OF THE REDUCTION.  AS TO THE INTERMEDIATE
PURCHASERS THAT WERE NOT SUBJECT TO THE FEDERAL POWER COMMISSION, THE
ALLOWABLE RETENTION OF ANY PART OF A REDUCED RATE FROM A DISTRIBUTOR
WOULD HAVE TURNED CONTEMPORANEOUSLY ON STATE LAW.  TO DENY BOTH THESE
CLASSES OF THE INTERMEDIATE PURCHASERS THE RIGHT TO ESTABLISH JUST
CLAIM AGAINST THE FUND AND TO DISTRIBUTE IT ALL AMONG THE CONSUMERS,
MOREOVER, WOULD INEVITABLY LEAVE A SIZABLE UNCLAIMED AMOUNT, AND THIS,
OF COURSE, WOULD HAVE TO GO TO THE DEPOSITORS AS THE RESIDUARY CLAIMANT
- IT WOULD HAVE TO GO, THAT IS, TO INTERSTATE, THE ONE PARTY LEAST
ENTITLED TO ANY OF THE FUND. 

THESE ARBITRARY ALTERNATIVES - TO DISTRIBUTE THE WHOLE FUND TO THE
IMMEDIATE PURCHASERS FROM INTERSTATE OR TO DISTRIBUTE IT ALL TO THE
ULTIMATE CONSUMERS - HAVE AT LEAST THE SUPPORT OF LOGIC THOUGH NOT OF
JUSTICE.  A SUGGESTED COMPROMISE - TO GO BEYOND THE IMMEDIATE
PURCHASERS AND AT THE SAME TIME STOP SHORT WITH THOSE PURCHASERS OVER
WHOM THE FEDERAL POWER COMMISSION HAS AUTHORITY - IS SAID TO BE
JUSTIFIED BY THE FACT THAT A FEDERAL COURT CANNOT ENGAGE IN RATE
REGULATION.  THIS SUGGESTION HAS THE SUPPORT NEITHER OF LOGIC NOR OF
JUSTICE.  IF A FEDERAL COURT IS BARRED FROM INQUIRING, BECAUSE SUCH AN
INQUIRY AMOUNTS IN EFFECT TO RATE REGULATION, WHAT WOULD HAVE BEEN THE
CONSEQUENCES TO ALL THOSE AFFECTED HAD THE REDUCTION OF INTERSTATE'S
RATE GONE INTO IMMEDIATE EFFECT, RATES ADMINISTERED BY THE FEDERAL
POWER COMMISSION SHOULD BE NO MORE OPEN TO SUCH AN INQUIRY THAN ARE
THOSE BEYOND THE POWER OF THE COMMISSION.  AND IF IT WOULD BE UNJUST TO
LET AN IMMEDIATE DISTRIBUTEE WHICH HAD PASSED ON THE HIGHER RATE TO ITS
PURCHASERS RETAIN THE BENEFIT OF THE REDUCTION, IT WOULD BE EQUALLY
UNJUST TO LET ANY SUCCEEDING DISTRIBUTEE WHICH HAD DONE THE SAME THING
ENJOY THE BENEFIT MERELY BECAUSE IT WAS THE LAST DISTRIBUTEE SUBJECT TO
THE COMMISSION'S JURISDICTION. 

AT ALL EVENTS, IN PREVENTING UNJUST ENRICHMENT A COURT OF EQUITY IS
NOT EXERCISING THE FUNCTIONS OF RATE-MAKING; IT IS NEITHER AWARDING
REPARATIONS FOR THE PAST NOR FIXING A FUTURE SCHEDULE AS DOES A RATE
REGULATING BODY.  GRANTING THAT A FEDERAL COURT DOES NOT HAVE THE POWER
TO REGULATE RATES, IT DOES NOT FOLLOW THAT IN DISCHARGING THE DUTY TO
DISTRIBUTE A FUND OF ITS OWN CREATION IT IS BARRED FROM AN INQUIRY
WHICH HAS SOME ASPECTS - THOUGH I BELIEVE VERY MINOR ONES - THAT WOULD
ALSO APPEAR IN A RATE PROCEEDING.  IN SHORT, ISSUES THAT MAY BE
PERTINENT TO A RATE INVESTIGATION BEFORE A REGULATORY COMMISSION ARE
NOT THEREFORE BEYOND THE POWER OF JUDICIAL INQUIRY WHEN THEY ARISE IN A
TOTALLY DIFFERENT RELATION. 

5.  ACCORDINGLY, THE TASK FOR THE COURT BELOW IS TO DETERMINE IN 1949
HOW THE INTERSTATE RATE REDUCTION WOULD HAVE AFFECTED ALL THE
INTERMEDIATE DISTRIBUTORS IN '43 AND '44 HAD IT NOT BEEN SUSPENDED BY
THE COURT'S INJUNCTION.  THE COURT OF APPEALS HAS INHERENT POWERS TO
BRING TO ITS AID ALL EFFECTIVE MEANS TO DISCHARGE THIS TASK.  THIS
COURT, IN EX PARTE PETERSON, 253 U.S. 300, SHOWED THE RESOURCES
AVAILABLE TO OUR DISTRICT COURTS EVEN IN AN ACTION AT LAW WHEN DUE
REGARD MUST BE HAD FOR THE REQUIREMENTS OF THE SEVENTH AMENDMENT.  THE
MORE CLEARLY AVAILABLE ARE PROCEDURES FOR DOING JUSTICE WHERE A COURT
OF EQUITY IS CALLED UPON TO DISTRIBUTE A TRUST FUND OF ITS OWN
CREATION. 

IN THE LIGHT OF THE FOREGOING, THE COURT OF APPEALS SHOULD ASK THE
FEDERAL POWER COMMISSION FOR AN ADVISORY REPORT AS TO WHAT THE
COMMISSION MIGHT HAVE DETERMINED HAD IT IN THE ORIGINAL PROCEEDING FOR
THE REDUCTION OF THE RATES OF INTERSTATE EXERCISED ITS POWER TO BRING
IN ALL THE PARTIES.  THERE IS NOTHING NOVEL IN THIS.  DISTRICT COURTS
MAY CALL UPON THE FEDERAL TRADE COMMISSION TO HELP SHAPE DECREES IN
SHERMAN LAW CASES.  TO BE SURE, THE CLAYTON ACT EXPLICITLY SO
PROVIDES.  BUT A COURT OF EQUITY HAS INHERENT POWERS TO INVITE SUCH
HELP FROM A GREAT AGENCY OF THE GOVERNMENT.  WHILE THE FEDERAL POWER
COMMISSION COULD, IF IT CHOSE, DECLINE TO RENDER THAT HELP, IT IS
INCONCEIVABLE THAT IT WOULD DO SO.  AS TO THE INTERMEDIATE PURCHASERS,
SUBJECT NOT TO THE POWER COMMISSION BUT TO STATE OR CITY REGULATION,
THE LOCAL AGENCIES COULD BE SIMILARLY RESORTED TO FOR AID IN THE
ULTIMATE PROBLEM BEFORE THE LOWER COURT OF DISTRIBUTING A COMMINGLED
FUND AS TO WHICH NONE OF THE INTERESTED PARTIES CAN FAIRLY BE SAID, AS
A MATTER OF LAW, TO HAVE AN OBVIOUS, DEMONSTRATED CLAIM. 

VARIOUS OBSTACLES ARE CONCEIVED TO STAND IN THE WAY OF THE LOWER
COURT'S FULFILLMENT OF THIS TASK.  BUT IT IS, TO SAY THE LEAST,
PREMATURE TO CONJURE UP ABSTRACT DIFFICULTIES WHICH, AS A PRACTICAL
MATTER, MAY EVAPORATE IN THE LIGHT OF THE INFORMED ADVICE WHICH THESE
VARIOUS REGULATORY AGENCIES MAY BE ABLE TO FURNISH READILY ON THE BASIS
OF THEIR AVAILABLE RECORDS OF THE FINANCIAL CONDITION OF THE UTILITIES
SUBJECT TO THEM.  IT WILL BE TIME ENOUGH TO DISTRIBUTE THE FUND BY SOME
MAKESHIFT RULE OF THUMB IF WHAT IS CONCEDEDLY A RULE OF INTRINSIC
FAIRNESS SHOULD BE FOUND JUDICIALLY UNENFORCEABLE.  ACCORDINGLY, I
WOULD REMAND THE CASE TO THE COURT OF APPEALS TO TAKE STEPS CONSISTENT
WITH THE FOREGOING VIEWS. 

BY MR. JUSTICE JACKSON. 

MR. JUSTICE BURTON AND I VIEW THIS CASE IN A DIFFERENT LIGHT THAN DO
ANY OF OUR BRETHREN BUT WE HAVE JOINED IN THE JUDGMENT AND THE OPINION
OF MR. JUSTICE DOUGLAS BECAUSE WE DEEM IT IMPORTANT THAT INSTRUCTIONS
TO THE COURT BELOW CARRY THE CONCURRENCE OF A MAJORITY OF THIS COURT. 
WE AGREE WITH MUCH BUT NOT ALL OF THAT OPINION AND WHERE OUR VIEWS
DIFFER WE ARE CLOSER TO THAT OPINION THAN TO OTHER VIEWS EXPRESSED
HERE.  WE REPEAT OUR CONCURRENCE SO THAT THERE MAY BE NO
MISUNDERSTANDING BUT WISH ALSO TO EXPRESS FOR THE RECORD OUR INDIVIDUAL
VIEWS. 

THE WAY THIS CASE APPEARS TO US IS THIS: 

1.  THE THREE PIPE-LINE COMPANIES WHOSE EXCESSIVE PAYMENTS MADE UP
THIS FUND MAY NOT, UNDER THE TERMS OF THE IMPOUNDING ORDER, HAVE AN
ABSOLUTE RIGHT TO RECOVER IT.  HOWEVER, SINCE THIS COURT FOUND THAT THE
MONEY WAS ILLEGALLY EXACTED FROM THEM, IT WOULD SEEM TO MAKE AT LEAST A
PRIMA FACIE CASE FOR RETURNING IT TO THEIR POSSESSION.  THE MINIMUM TO
WHICH THEY ARE ENTITLED IS A CHANCE TO BE HEARD AS TO WHATEVER CLAIM
THEY MAY HAVE TO IT.  AS THESE COMPANIES ARE SUBJECT TO THE FEDERAL
NATURAL GAS ACT, A FEDERAL COURT MIGHT PROPERLY WEIGH THEIR CLAIMS
UNDER FEDERAL LAW. 

2.  ASSUMING, HOWEVER, WHAT IS NOT IMPROBABLE, THAT NONE OF THE PIPE
LINE COMPANIES ESTABLISHES A CLAIM TO THE FUND, THE NEXT IN RIGHT TO
RECEIVE IT WOULD BE THEIR CUSTOMERS, THE LOCAL DISTRIBUTING COMPANIES. 
THE LATTER ARE UNDER PROTECTION OF FEDERAL LAW AS TO THE RATES WHICH
MAY BE EXACTED FROM THEM BY THE PIPE-LINE COMPANIES BUT ARE IN NO
RESPECT UNDER FEDERAL LAW AS TO THE RATES THEY MAY CHARGE CUSTOMERS. 
IF ALL OF THE FEDERAL POWER EXERTED IN THE NATURAL GAS ACT HAD BEEN
EXERCISED BY THE FEDERAL POWER COMMISSION, IT COULD NOT REACH OR
CONTROL THEIR CUSTOMER RELATIONS.  WE DO NOT SEE, THEREFORE, HOW A
FEDERAL COURT IN THIS LITIGATION CAN DERIVE FROM THE ACT ANY GREATER
POWER TO ENTER THE LOCAL FIELD WITH REFUNDS THAN THE POWER COMMISSION
HAD TO ENTER IT FOR RATE-MAKING.  THERE ARE MANY LEGAL AND PRACTICAL
REASONS WHY THE COURT'S FUNCTION SHOULD NOT BE EXPANDED BEYOND THE
POINT WHERE CONGRESS ENDED THE FUNCTIONS OF THE POWER COMMISSION. 

3.  THE MANNER AND AMOUNT BY WHICH ANY REPAYMENTS TO DISTRIBUTING
COMPANIES WOULD BE REFLECTED IN REDUCED RATES TO CONSUMERS, AND
THEREFORE IN REBATES, IS EXCLUSIVELY FOR STATE LAW.  TWENTY-ONE OF
THESE DISTRIBUTING COMPANIES ARE INVOLVED AND THEY OPERATE IN EIGHT
STATES, EACH WITH ITS OWN PRINCIPLES TO GOVERN LOCAL RATE-MAKING AND
SEPARATE AUTHORITIES TO APPLY THEM.  WE SOLVE NO PROBLEM BY SAYING THAT
COMPUTATION OF THIS REFUND IS NOT RATE-MAKING.  OF COURSE IT IS NOT,
BUT IT IS SO LIKE UNTO IT THAT NO ONE SUGGESTS THAT ANY BODY OF LAW
EXCEPT THAT OF RATE-MAKING IS APPLICABLE.  DISGUISE IT WITH WHAT
SOPHISTRY WE WILL, THE DISPOSITION OF REFUNDS AS BETWEEN OPERATING
COMPANIES AND CUSTOMERS MUST BE GENERALLY BASED ON THE LOCAL LAW OF
RATE-MAKING OR ON NO LAW AT ALL.  SOME OF THESE COMPANIES AND THEIR
CUSTOMERS ARE LOCATED WITHIN THE TERRITORIAL JURISDICTION OF THE COURT
OF APPEALS FOR THE FIFTH CIRCUIT; OTHERS ARE IN THE SIXTH, SEVENTH AND
EIGHTH CIRCUITS.  I KNOW OF NO LEGAL OR PRACTICAL JUSTIFICATION FOR
REQUIRING THE FIFTH CIRCUIT COURT OF APPEALS TO UNDERTAKE
INTERPRETATION AND APPLICATION AS AN ORIGINAL MATTER OF THE LAWS OF
EIGHT STATES, SEVERAL OF THEM BEYOND ITS JURISDICTION. 

4.  THE APPLICATION OF THESE FUNDS, IF THEY ARE HELD TO GO TO THE
LOCAL DISTRIBUTING COMPANIES, PRESENT DIFFICULT QUESTIONS OF POLICY
WHICH IT IS THE RESPONSIBILITY OF THE STATES TO RESOLVE IN THEIR OWN
WAYS.  THE FEDERAL COURT SHOULD NOT UNDERTAKE TO RESOLVE THEM, EVEN IF
THEY WERE LESS COMPLEX.  THESE PROBLEMS ARE NOT SOLVED OR EVADED BY
SAYING THAT REFUNDS SHALL GO TO CONSUMERS RATHER THAN TO THE
COMPANIES.  IT OVERSIMPLIFIES THESE PROBLEMS TO TREAT CONSUMERS IN THE
ABSTRACT AS A CLASS ALL ALIKE.  AND IT DOES NOT DISPOSE OF THE PROBLEMS
TO DECLARE THAT REFUNDS SHOULD BE ON "EQUITABLE PRINCIPLES" AS IF THERE
WERE A DEFINED AND ACCEPTED BODY OF PRINCIPLES OF EQUITY ON THIS
SUBJECT.  EQUITY IN THE HISTORICAL SENSE - EQUITY JURISPRUDENCE - HAS
NO GUIDANCE TO GIVE BEYOND MAXIMS, SUCH, FOR EXAMPLE, AS "EQUALITY IS
EQUITY."  BUT HERE, WHAT IS EQUALITY?  OF COURSE, WHAT NO DOUBT IS
MEANT IS THAT THE COURT SHOULD APPLY A SORT OF NATURAL JUSTICE BASED ON
POPULAR NOTIONS OF RIGHT DEALING.  BUT THIS DOES NOT ANSWER SOME OF THE
CONCRETE QUESTIONS WHICH SOMEONE MUST FACE IN FINAL DISPOSITION OF
THESE FUNDS.  I SHALL MENTION BUT FEW. 

AT THE VERY OUTSET ONE IS FACED WITH THE QUESTION AS TO WHAT IS AN
"EQUITABLE" BASIS OF REFUND AS BETWEEN INDUSTRIAL AND DOMESTIC
CONSUMERS.  DIRECT SALES TO INDUSTRIAL CONSUMERS BY THE THREE PIPE-LINE
COMPANIES AMOUNTED TO 63% OF THE TOTAL FOR MISSISSIPPI RIVER FUEL
COMPANY, 18% IN THE CASE OF SOUTHERN NATURAL GAS COMPANY, AND 11% FOR
UNITED GAS PIPE LINE COMPANY.  IN ADDITION TO THIS, OTHER INDUSTRIAL
CONSUMERS MAY BE SERVED BY LOCAL DISTRIBUTING COMPANIES.  THE FEDERAL
POWER COMMISSION PROPOSAL, WHICH THIS COURT SEEMS TO THINK SHOULD
PREVAIL, IS THAT REFUNDS BOTH TO INDUSTRIAL AND DOMESTIC CONSUMERS BE
CALCULATED BY DIVIDING THE MONEY IN PROPORTION TO FEET OF GAS SOLD TO
EACH ONE.  ON THIS BASIS, THE POWER COMMISSION'S EXHIBIT PROPOSES A
REFUND TO DIRECT INDUSTRIAL CONSUMERS ALONE OF OVER A MILLION DOLLARS
FROM THIS FUND.  THE COMMISSION DOES NOT TELL US THE PRICES PAID BY
VARIOUS CLASSES OF CONSUMERS.  BUT IT IS COMMON KNOWLEDGE THAT, FOR A
VARIETY OF REASONS, INDUSTRIES GET A MUCH LOWER PRICE PER M.C.F. THAN
DOMESTIC USERS.  IF WE ASSUME IT IS 50%, THEN THE REFUND WOULD REPAY
INDUSTRIALS TWICE AS LARGE A PROPORTION OF WHAT THEY HAVE PAID FOR GAS
PER M.C.F. AS IT WOULD HOUSEHOLD USERS.  IS THIS "EQUITY"?  IN MY
DISSENT IN FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO., 320 U.S.
591, I POINTED OUT THE UNECONOMIC USE OF GAS IN INDUSTRY AND THE WASTE
AND EXHAUSTION OF IRREPLACEABLE NATURAL RESOURCES THAT IT CAUSES, AND
THE GREAT DIFFERENTIAL THAT EXISTS BETWEEN THEIR LOW CONTRACT PRICE AND
THE PRICE PAID BY DOMESTIC USERS.  I HAVE GREAT DOUBT WHETHER THE
INDUSTRIAL USERS HAVE ANY JUST BASIS FOR PARTICIPATING IN THIS REFUND;
BUT IF THEY COULD, AND THEY CERTAINLY ARE ENTITLED TO TRY, THEIR SHARE
SHOULD NOT BE GREATER THAN THEIR PROPORTION OF THE REVENUES
CONTRIBUTED, RATHER THAN OF THEIR PROPORTION OF THE CONSUMPTION.  THE
LATTER MEASURES ONLY THE BENEFITS THEY ALREADY HAVE DERIVED FROM
EXHAUSTING THE NATION'S SUPPLIES, NOT AT ALL WHAT THEY HAVE CONTRIBUTED
TO THE FUND.  THIS COURT REFUSED TO CONSIDER THESE EQUITIES, AS DID
ALSO THE POWER COMMISSION, IN THE HOPE CASE.  WHY NOT THEN LEAVE THE
STATES FREE TO SOLVE THE ISSUE?  SOME OF THE STATES MAY HAVE AN
INTELLIGENT POLICY WITH REFERENCE TO THE RAPID DEPLETION OF OUR GAS
RESERVES, VIS-A-VIS DOMESTIC AND INDUSTRIAL CONSUMPTION, AND THE
RELATION OF PRICE TO UNECONOMIC USES.  THE FEDERAL GOVERNMENT HAS
NONE. 

THE POWER COMMISSION HAS FURNISHED A TABULATION SHOWING THE SHARE OF
EACH LOCAL DISTRIBUTING COMPANY UNDER ITS THEORY.  BUT IT HAS NOT
PROVIDED ANY OF THE DATA WHICH WOULD DISCLOSE THE MAGNITUDE AND
COMPLEXITY OF THE TASK IT IS ASKING US TO VISIT UPON THE COURT OF
APPEALS BY DIRECTING IT TO GO BEYOND THIS AND DISTRIBUTE EACH COMPANY'S
SHARE AMONG ITS CONSUMERS.  BY REFERENCE TO MOODY'S MANUAL, HOWEVER, WE
CAN LEARN THE APPROXIMATE NUMBER OF CUSTOMERS SERVED BY EACH COMPANY. 
THEN BY APPLYING THE POWER COMMISSION'S TABULATION OF THE SHARE OF
REFUNDS, IT WOULD APPEAR THAT REFUNDS FOR SOME COMPANIES WOULD BE SO
TRIVIAL THAT A STATE SUPERVISING AUTHORITY MIGHT CONCLUDE THAT TO COVER
THIS REFUND INTO THE CURRENT REVENUES OF THE OPERATING COMPANY FOR
WHATEVER EFFECT IT MIGHT HAVE ON ITS PRESENT OR FUTURE RATES WOULD BE A
MORE SENSIBLE PROCEDURE THAN TO SPEND IT IN EXPENSE OF SPECIAL
PROCEEDINGS TO REFUND TO CONSUMERS.  FOR INSTANCE, ARKANSAS-LOUISIANA
GAS CO. SERVES 142,481 CUSTOMERS IN 109 COMMUNITIES.  THE POWER
COMMISSION ALLOCATES IT $20,911, OR AN AVERAGE 15[ PER CONSUMER.  THE
ILLINOIS POWER SERVES 116,000 CUSTOMERS IN 56 COMMUNITIES AND IS
ALLOCATED $50,065, OR ABOUT 43[ PER CONSUMER.  BIRMINGHAM GAS SERVES
61,000 CONSUMERS IN 9 COMMUNITIES AND IS ALLOCATED $30,133, MAKING AN
AVERAGE REFUND OF ABOUT 49[. 

THE FOREGOING ESTIMATE OF CONSUMER REFUNDS ASSUMES AN EQUAL AMOUNT TO
EACH CONSUMER.  ANOTHER PERMISSIBLE BASIS, AND I SHOULD THINK, A FAIRER
ONE WHERE SUBSTANTIAL AMOUNTS WERE INVOLVED, WOULD BE A REFUND IN RATIO
TO THE BILLS PAID FOR GAS.  THE POWER COMMISSION, HOWEVER, IF
CONSISTENT, WOULD USE ANOTHER METHOD AND REFUND IN PROPORTION TO THE
FEET OF GAS PURCHASED BY THE CONSUMER.  DIFFERENT LOCAL CONDITIONS
PRECIPITATE SOME NICE QUESTIONS IN APPLYING ANY FAIR METHOD AS BETWEEN
CONSUMERS.  FROM MOODY'S MANUAL, FOR EXAMPLE, WE LEARN THAT ONE OF THE
LARGEST OF THE DISTRIBUTING COMPANIES, THE ATLANTA GASLIGHT CO., WHICH
SERVES APPROXIMATELY 133,000 CONSUMERS IN 28 COMMUNITIES, HAS A
GRADUATED SCALE OF RATES, SO THAT CONSUMERS PAY DIFFERENT RATES FOR GAS
CONSUMED IN DIFFERENT QUANTITY BRACKETS.  I SHOULD THINK THE PRACTICAL
EFFECT OF ITS SCHEDULE WOULD BE THAT A VERY LARGE CONSUMER WOULD MAKE
AN AVERAGE PAYMENT MUCH LESS PER THOUSAND FEET THAN WOULD A MODERATE
HOUSEHOLD CONSUMER.  EQUALITY OF REFUND MAY NOT BE EQUALITY OF
TREATMENT.  IT WILL TAKE MORE THAN EQUALITARIAN GENERALITIES TO GET
THIS CASH INTO CONSUMERS' HANDS.  IS NOT THE MANNER OF REFUND UNDER
SUCH LOCAL CONDITIONS ONE TO BE WORKED OUT BY LOCAL AUTHORITIES RATHER
THAN THE FEDERAL COURT OF A DISTANT CIRCUIT? 

THE PROBLEMS DO NOT END HERE.  CONSUMERS DURING WHAT PERIOD ARE
ENTITLED TO REFUND?  CERTAINLY THE RATE REDUCTION WHICH CAUSED THIS
FUND TO ACCUMULATE COULD NOT IN NORMAL COURSE HAVE REACHED LOCAL RETAIL
CONSUMERS UNTIL SOMETIME AFTER REDUCTION IN WHOLESALE RATES, AND THE
PERIOD WOULD DIFFER ACCORDING TO LOCAL CONDITIONS.  THE INDIVIDUALS WHO
ARE ENTITLED TO REFUND, FOR WHATEVER PERIOD MAY BE ADOPTED, MUST BE
IDENTIFIED AND QUESTIONS SETTLED AS WHO IS ENTITLED TO THE REFUND OF A
DECEASED CONSUMER, WHAT BECOMES OF THE SHARE OF ONE WHO HAS REMOVED OR
IS UNKNOWN.  DISPUTES BETWEEN LANDLORD AND TENANT, HUSBAND AND WIFE,
AND MANY OTHER QUESTIONS WILL ARISE; ALL OF WHICH ARE FOR LOCAL
AUTHORITIES. 

FOR THESE REASONS IT SEEMS TO US THAT THE FUNCTIONS OF THE FEDERAL
COURT END WHEN IT HAS GRANTED THESE REFUNDS TO THE LAST PURCHASER WHOSE
PURCHASE PRICE THE FEDERAL AUTHORITY CAN LAWFULLY REDUCE.  THIS WOULD
BE THE DISTRIBUTING COMPANIES.  FROM THERE ON IT IS A LOCAL PROBLEM
WITH WHICH NEITHER THE POWER COMMISSION NOR THE COURT HAS ANY
LEGITIMATE CONCERN.  THE MACHINERY OF SOME OF THE STATES MAY BE
SOMEWHAT INADEQUATE FOR DEALING WITH THE PROBLEM, BUT THAT DOES NOT, IN
OUR VIEW, WARRANT USURPATION OF THEIR FUNCTIONS. 

HOWEVER, FOR REASONS STATED AT THE BEGINNING OF THIS OPINION, MR.
JUSTICE BURTON AND I HAVE JOINED THE JUDGMENT AND OPINION OF THE
COURT. 

MR. JUSTICE BLACK, CONCURRING IN PART AND DISSENTING IN PART. 

I CONCUR IN REVERSAL OF THE JUDGMENT OF THE COURT OF APPEALS, BUT
DISSENT FROM THE DIRECTIONS GIVEN THAT COURT FOR DISPOSITION OF THE
IMPOUNDED FUNDS.  IN THE FIRST PLACE I THINK THOSE DIRECTIONS REST ON
ERRONEOUS LEGAL PRINCIPLES.  SECONDLY, WITHOUT PRECISE DEFINITION OF
ISSUES OR STANDARDS, THE DIRECTIONS IMPOSE AN ALMOST IMPOSSIBLE TASK ON
THE COURT OF APPEALS, A TASK WHICH IS BOUND TO DISSIPATE A LARGE PART
OF THE FUNDS IN DIVERSE, PROTRACTED, INVOLVED AND CONFUSED LITIGATION. 
FURTHERMORE, I SEE LITTLE ASSURANCE THAT THE FUND'S REMNANT AT THE END
OF THIS LITIGATION COULD EVER REACH THE CONSUMERS WHO ARE IN MY
JUDGMENT THE EQUITABLE AND LEGAL BENEFICIARIES OF THE FUNDS. 

ACTING PURSUANT TO THE NATURAL GAS ACT,  FN1  THE FEDERAL POWER
COMMISSION ORDERED THE INTERSTATE NATURAL GAS COMPANY TO REDUCE ITS
RATES TO CERTAIN WHOLESALE PIPE-LINE COMPANIES.  CHALLENGING THIS ORDER
AS ILLEGAL, THE WHOLESALE COMPANIES SOUGHT AND OBTAINED FROM A DISTRICT
COURT AN INJUNCTION AGAINST ENFORCEMENT OF THE RATE REDUCTION ORDER. 
BY REASON OF THE INJUNCTION THE PIPE-LINE COMPANIES WERE COMPELLED TO
CONTINUE TO PAY THE HIGHER GAS RATES.  BUT THE COURT REQUIRED THE
NATURAL GAS COMPANY TO MAKE MONTHLY PAYMENT INTO COURT OF AMOUNTS EQUAL
TO THE RATE REDUCTION.  FOR MORE THAN FOUR YEARS THESE FUNDS HAVE BEEN
COLLECTED AND PAID INTO COURT.  WHEN THIS CASE WAS SUBMITTED THE TOTAL
AMOUNT COLLECTED WAS IN EXCESS OF TWO AND A HALF MILLION DOLLARS.  THE
RATE REDUCTION ORDER WAS SUSTAINED BY THIS COURT  FN2  AND CONSEQUENTLY
INTERSTATE IS NOT ENTITLED TO AND ASSERTS NO CLAIM TO THE FUND.  THE
WHOLESALE PIPE-LINE COMPANIES CLAIM IT ON THE GROUND THAT BUT FOR THE
INJUNCTION THEY WOULD HAVE OBTAINED THE GAS AT THE LOWER RATE.  FN3 THE
FEDERAL POWER COMMISSION AND CERTAIN STATE AGENCIES HERE CONTEND THAT
SINCE THE PURPOSE OF THE NATURAL GAS ACT WAS TO PROVIDE BENEFITS TO THE
ULTIMATE CONSUMERS THE TOTAL IMPOUNDED FUNDS SHOULD BE DISTRIBUTED TO
THE CONSUMERS. 

FIRST.  I AGREE WITH THE COURT THAT THE AIM OF THE FEDERAL ACT WAS TO
PROTECT ULTIMATE CONSUMERS OF GAS FROM EXCESSIVE CHARGES.  TO PROTECT
THE ULTIMATE CONSUMER, HOWEVER, THE ACT WENT NO FURTHER THAN TO FIX THE
INTERSTATE RATES OF PRODUCERS AND WHOLESALERS.  CONGRESS INTENDED THAT
THESE FEDERAL RATE REDUCTIONS WOULD LOWER THE COSTS OF GAS TO LOCAL
RETAILERS THUS ENABLING STATE AND LOCAL AGENCIES TO FIX LOWER CONSUMER
RATES ON THE FEDERALLY FIXED LOWER WHOLESALE RATES.  CONSEQUENTLY,
WHERE COURTS LEAVE THE ACT'S SCHEME FREE TO FUNCTION, ULTIMATE
CONSUMERS OF GAS GET NO BENEFITS FROM THE FEDERALLY REDUCED PRODUCER
RATES UNTIL AND UNLESS STATE OR LOCAL AUTHORITIES FIX REDUCED RATES FOR
COMPANIES WHOSE SALES FALL WITHIN THEIR RESPECTIVE JURISDICTIONS. 
UNDER SUCH CIRCUMSTANCES RATE RELATIONSHIPS AND COST CONSEQUENCES AS
BETWEEN CONSUMERS AND DEALERS UNDER STATE JURISDICTION WOULD RAISE
QUESTIONS OF STATE LAW ONLY.  BUT HERE, THE NORMAL CONSEQUENCES OF THE
VALID FEDERAL RATE REDUCTION WERE NOT ALLOWED TO TAKE PLACE.  THE
INJUNCTION PLACED AN INSUPERABLE OBSTACLE TO STATE REDUCTION OF
WHOLESALE OR RETAIL RATES ON THE BASIS OF THE FEDERAL RATE REDUCTION
ORDER.  THUS THE COURT'S STAY BLOCKED THE CONGRESSIONAL MECHANISM
INTENDED TO PRODUCE LOWER CONSUMER RATES.  CENTRAL STATES CO. V.
MUSCATINE, 324 U.S. 138, 149(DISSENTING OPINION).  FURTHERMORE, NO
PRACTICAL REMEDY IS AVAILABLE IN THE STATE COURTS OR STATE OR FEDERAL
REGULATORY AGENCIES TO DETERMINE RETROACTIVELY WHAT IS A PROPER
DISTRIBUTION OF THE IMPOUNDED FUNDS.  THE JUDICIAL STAY THEREFORE
EFFECTUALLY FRUSTRATED THE CONGRESSIONAL PURPOSE TO PROVIDE A TIMELY
OPPORTUNITY FOR STATE OR NATIONAL REGULATORY AGENCIES TO ACCORD
CONSUMERS THE ACT'S BENEFITS.  CONSEQUENTLY, RIGHTS IN THE FUND AS
BETWEEN ULTIMATE CONSUMERS AND THE PIPE-LINE COMPANIES MUST BE
DETERMINED UNDER THE NEW SITUATION CREATED BY THE FEDERAL COURT. 

SECOND.  DIFFERING FROM THE COURT, I THINK THAT DISTRIBUTION OF THE
FUND IN THIS NEW SITUATION IS WHOLLY A MATTER OF FEDERAL LAW AND THAT
THE FUND SHOULD BE DISTRIBUTED WITHOUT A FUTILE EFFORT TO DETERMINE THE
EXTENT CONSUMER RATES MIGHT HAVE BEEN REDUCED BY STATE OR NATIONAL
REGULATORY AGENCIES HAD THEY BEEN LEFT FREE TO ACT ON THE REDUCED RATE
COST OF GAS.  IT WAS A FEDERAL COURT ACTING UNDER AUTHORITY OF FEDERAL
LAW THAT CREATED THE FUND.  AND HAVING DEPRIVED CONSUMERS OF AN
OPPORTUNITY TO GET THE REDUCED RATES CONGRESS INTENDED THEM TO HAVE AS
THE RESULT OF AN INTEGRATED FEDERAL-STATE COURSE OF CONDUCT, IT BECAME
THE DUTY OF THE FEDERAL COURT TO ADMINISTER THIS FUND UNDER FEDERAL
RULES THAT WOULD AS NEARLY AS POSSIBLE AFFORD THESE CONGRESSIONALLY
INTENDED BENEFITS TO CONSUMERS.  NOTHING SHORT OF THIS WILL ACCORD WITH
THE CONGRESSIONAL PURPOSE OR WITH EQUITABLE PRINCIPLES BY WHICH THE
COURT MUST BE GOVERNED IN ADMINISTERING THE FUND.  INLAND STEEL CO. V.
UNITED STATES, 306 U.S. 153; UNITED STATES V. MORGAN, 307 U.S. 183. 

ALL GAS THE WHOLESALE PRICE OF WHICH WAS AFFECTED BY THE COMMISSION'S
ORDER HAD ITS ULTIMATE PRICE TO THE CONSUMER FIXED BY LAW OR BY
AGREEMENT OF PARTIES.  FN4  IN NEITHER EVENT CAN IT BE ASSUMED THAT THE
PRICE PAID FAILED TO GIVE THE SELLER A REASONABLE VALUE.  UNDER SUCH
CIRCUMSTANCES, WHERE RATES WERE FIXED BY LAW OR CONTRACT ON THE BASIS
OF THE HIGH WHOLESALE RATE, NEITHER STATUTES NOR EQUITABLE PRINCIPLES
REQUIRE THE COURT OF APPEALS TO SEEK STANDARDS OF REASONABLENESS
DIFFERENT FROM THOSE UNDER WHICH GAS MERCHANTS VOLUNTARILY HAD ALREADY
SOLD THEIR PRODUCT TO RETAILERS AND CONSUMERS.  ALL REGULATORY STATUTES
PERMIT UTILITIES TO COMPLAIN OF UNREASONABLE RATES, AND THE FAILURE OF
THESE UTILITIES TO PROSECUTE CLAIMS FOR EXCESS RATES UNTIL THIS
WINDFALL WAS IN SIGHT SHOULD BAR THEM FROM MAKING RETROACTIVE CLAIMS
NOW.  AND OF COURSE, WHERE THE PRICE WAS FIXED BY VOLUNTARY CONTRACTS,
THE COURT SHOULD NOT BE REQUIRED TO RE-EXAMINE THOSE CONTRACTS ON THE
NAIVE ASSUMPTION THAT CONSUMERS TOOK AN UNCONSCIONABLE ADVANTAGE OF THE
PIPE-LINE COMPANIES. 

MY BELIEF IS THAT UNDER THE CIRCUMSTANCES HERE THE ONLY WAY EVEN
PARTIALLY TO CARRY OUT THE PURPOSE OF CONGRESS TO AFFORD CONSUMER
RELIEF IS BY DISTRIBUTING THIS FUND TO THE CONSUMERS.  THIS ITSELF WILL
IMPOSE A TEDIOUS, ONEROUS, AND PERHAPS EXPENSIVE BURDEN ON THE COURT
AND THE CONSUMERS.  SUCH A BURDEN, HOWEVER, IS ONE OF THE PRICES TO BE
PAID FOR THE PRACTICE OF JUDICIAL SUSPENSION OF RATE ORDERS.  BUT THE
BURDEN IN DISTRIBUTION TO CONSUMERS WOULD BE SMALL IN COMPARISON TO
THAT IMPOSED BY REQUIRING THE COURT IN 1949 AND 1950 TO MAKE EXPENSIVE
AND EXTENSIVE EXPLORATIONS TO SPECULATE ON WHAT RATES STATE
ADMINISTRATIVE AGENCIES WOULD HAVE FOUND REASONABLE IN SEPARATE YEARS
FROM 1943 TO 1947.  FN5  NEITHER THE PROCEDURE I SUGGEST NOR THAT
ADOPTED BY THE COURT CAN ACHIEVE WITH SCIENTIFIC ACCURACY THE RESULT
THAT WOULD HAVE FOLLOWED HAD THE COURT NOT SUSPENDED THE RATE REDUCTION
ORDER.  BUT UNDER THE COURT'S PLAN TO REQUIRE THE COURT OF APPEALS TO
RECONSTRUCT HYPOTHETICAL RATE SITUATIONS IN SEVERAL STATES A MAJOR PART
OF THE FUNDS MIGHT BE DISSIPATED IN A COSTLY BUT VAIN SEARCH FOR AN
UNATTAINABLE GOAL.  FN6  CONSUMERS AT LEAST CAN GET A SUBSTANTIAL PART
OF THE FUNDS UNDER THE PROCEDURE I SUGGEST.  FN7  NOR CAN I SEE ANY
POSSIBLE INTRUSION INTO STATE FUNCTIONS BY FOLLOWING SUCH A COURSE. 

NEITHER STATE LAWS NOR STATE COURTS ARE RESPONSIBLE FOR THE TANGLED
SITUATION HERE.  I CANNOT SEE WHERE IT COULD POSSIBLY OFFEND THE STATES
OR ENCROACH ON THEIR POWER FOR THE FEDERAL COURT TO DISTRIBUTE THESE
FUNDS TO THE VERY STATE PEOPLE THE FEDERAL LAW WAS PASSED TO PROTECT. 
AND THE STATE REPRESENTATIVES HERE ARGUING FOR THE DISTRIBUTION OF THIS
FUND TO THE ULTIMATE CONSUMERS, CITIZENS OF THEIR STATES, ARE
APPARENTLY UNABLE TO DETECT IN DISTRIBUTION TO THESE CONSUMERS ANY
INVASION OF STATE RIGHTS BY THE FEDERAL COURTS. 

THIS SEEMS AN APPROPRIATE TIME TO REVERSE CENTRAL STATES CO. V.
MUSCATINE, 324 U.S. 138.  I REGRET TO SEE THAT HOLDING SURVIVE EVEN IN
PART. 

FN1  52 STAT. 821, 15 U.S.C. SEC. 717. 

FN2  INTERSTATE NATURAL GAS CO. V. FEDERAL POWER COMMISSION, 331 U.S.
682. 

FN3  ONE PIPE-LINE COMPANY CLAIMS TO HAVE PASSED ON THE RATE
REDUCTION TO ITS CUSTOMERS WHICH IF PROVED WOULD PUT IT IN AN ENTIRELY
DIFFERENT CATEGORY. 

FN4  AS THE COURT POINTS OUT, INDUSTRIAL PURCHASERS' RATES MAY NOT
HAVE BEEN FIXED BY LAW BUT BY CONTRACTS. 

FN5  HOW IS THIS REASONABLENESS TO BE DETERMINED, ON THE FAIR VALUE
THEORY, THE REPRODUCTION COST THEORY, OR SOME OTHER THEORY?  AND HOW
MANY MORE YEARS WOULD IT TAKE THE COURT TO COMPLETE THE SEVERAL
EXTENSIVE INQUIRIES REQUIRED TO REACH ITS CONCLUSIONS AS TO
REASONABLENESS OF THE PRICES CHARGED BY THE SEVERAL COMPANIES IN THE
SEVERAL STATES WHERE THEY SOLD GAS?  SEE MCCART V. INDIANAPOLIS WATER
CO., 302 U.S. 419, 428-439(DISSENTING OPINION).    FN6  IT IS
INTERESTING TO NOTE THE UNCHALLENGED ASSERTION IN THE GOVERNMENT BRIEF
THAT ALTHOUGH IN CENTRAL STATES CO. V. MUSCATINE, 324 U.S. 138, "THIS
COURT REQUIRED THAT THE WAY BE LEFT OPEN FOR THE ULTIMATE CONSUMERS TO
UTILIZE THE REMEDIES, IF ANY, PROVIDED BY LOCAL LAW, NO SUCH PROCEEDING
HAS BEEN BROUGHT."  THE ILLUSION THAT STATE RELIEF IS SOMEHOW AVAILABLE
TO THE CONSUMERS HERE SEEMS TO PERSIST DESPITE THE REALITIES THAT
CONSUMERS IN THE CENTRAL STATES CASE, SIMILARLY SITUATED TO THE
CONSUMERS HERE, HAVE NOT RECEIVED A DIME FROM THE "AVAILABLE" STATE
REMEDIES.    FN7  APPREHENSION IS EXPRESSED IN THIS COURT THAT THE
PROCEDURE I SUGGEST WOULD RESULT IN MAKING THE PRODUCING COMPANY THE
RESIDUARY BENEFICIARY OF FUNDS NOT CLAIMED BY CONSUMERS.  SUCH AN
APPREHENSION IS NOT JUSTIFIED SINCE THE COURT OF APPEALS CAN DIRECT ANY
UNCLAIMED CONSUMER FUNDS TO BE DISTRIBUTED TO WHATEVER COMPANY MIGHT
SHOW A SUPERIOR EQUITY. 

MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE JOIN IN THIS OPINION. 
..END :

















T.W.A. V. CIVIL AERONAUTICS BOARD, 336 U.S. 601 


NO. 387.  ARGUED FEBRUARY 8-9, 1949.  - DECIDED APRIL 18, 1949.  - 83
U.S. APP. D.C. 358, 169 F.2D 893, AFFIRMED. 


1.  THE CIVIL AERONAUTICS BOARD IS WITHOUT AUTHORITY, UNDER THE CIVIL
AERONAUTICS ACT OF 1938 AS AMENDED, TO FIX A NEW MAIL RATE FOR AIR
CARRIERS AND TO MAKE IT RETROACTIVE FOR A PERIOD IN WHICH A FINAL RATE
PREVIOUSLY FIXED BY THE BOARD WAS IN EFFECT AND UNCHALLENGED BY THE
INITIATION OF THE MAIL RATE PROCEEDING.  PP. 602-608. 

2.  SECTION 406(A) OF THE ACT, WHICH EMPOWERS THE BOARD TO FIX RATES
FOR THE TRANSPORTATION OF MAIL BY AIRCRAFT AND "TO MAKE SUCH RATES
EFFECTIVE FROM SUCH DATE AS IT SHALL DETERMINE TO BE PROPER," IS NOT TO
BE CONSTRUED AS AUTHORIZING THE BOARD TO MAKE A RATE RETROACTIVE TO A
DATE EARLIER THAN THE DATE OF THE COMMENCEMENT OF THE RATE PROCEEDING. 
PP. 604-607. 

TRANSCONTINENTAL & WESTERN AIR, INC. V. CIVIL AERONAUTICS BOARD. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

A PETITION TO THE CIVIL AERONAUTICS BOARD BY AN AIR TRANSPORT COMPANY
TO FIX A NEW RATE FOR THE TRANSPORTATION OF MAIL WAS DISMISSED INSOFAR
AS THE PETITION SOUGHT TO HAVE THE NEW RATE MADE RETROACTIVE TO A DATE
EARLIER THAN THE DATE OF THE PETITION.  8 C.A.B. 685.  THE COURT OF
APPEALS AFFIRMED.  83 U.S. APP. D.C. 358, 169 F.2D 893.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 884.  AFFIRMED, P. 608. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE CIVIL AERONAUTICS BOARD HAS
AUTHORITY TO FIX A NEW MAIL RATE FOR AIR CARRIERS AND TO MAKE IT
RETROACTIVE FOR A PERIOD IN WHICH A FINAL RATE PREVIOUSLY FIXED BY THE
BOARD WAS IN EFFECT AND UNCHALLENGED BY THE INITIATION OF A MAIL RATE
PROCEEDING.  THE ANSWER TURNS PRIMARILY ON THE MEANING OF SEC. 406(A)
OF THE CIVIL AERONAUTICS ACT OF 1938 AS AMENDED, 52 STAT. 998, 49
U.S.C. SEC. 486(A), WHICH EMPOWERS THE BOARD TO FIX AND DETERMINE THE
FAIR AND REASONABLE RATES OF COMPENSATION FOR THE TRANSPORTATION OF
MAIL BY AIRCRAFT AND "TO MAKE SUCH RATES EFFECTIVE FROM SUCH DATE AS IT
SHALL DETERMINE TO BE PROPER  ...  "  FN1 

THE BOARD IN AN ORDER DATED OCTOBER 26, 1945, FIXED A MAIL RATE OF 45
CENTS PER MAIL TON-MILE FOR PETITIONER.  FN2  FROM THAT DATE UNTIL
MARCH 14, 1947, PETITIONER WAS PAID AT THAT RATE FOR ITS AIR CARRIER
SERVICES.  DURING THAT TIME NO ACTION WAS TAKEN BY PETITIONER OR BY THE
GOVERNMENT TO INITIATE A CHANGE IN THAT RATE.  ON MARCH 14, 1947,
PETITIONER FILED A PETITION WITH THE BOARD ALLEGING THAT ITS MAIL RATE
HAD NOT BEEN FAIR AND REASONABLE SINCE JANUARY 1, 1946, AND REQUESTING
THE BOARD TO FIX A FAIR AND REASONABLE RATE "FROM AND AFTER JANUARY 1,
1946."  AFTER HEARING, THE BOARD BY A DIVIDED VOTE RULED THAT IT HAD NO
AUTHORITY TO FIX A MAIL RATE FOR A PERIOD PRIOR TO MARCH 14, 1947, AND
DISMISSED THE PETITION INSOFAR AS IT SOUGHT THAT RELIEF.  8 C.A.B.
685.  THE COURT OF APPEALS AFFIRMED THE ORDER OF THE BOARD.  83 U.S.
APP. D.C. 358, 169 F.2D 893.  THE CASE IS HERE ON A PETITION FOR A WRIT
OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE
QUESTION TO THE CARRIERS AND PUBLIC ALIKE. 

THE LANGUAGE OF SEC. 406(A), WHICH EMPOWERS THE BOARD TO "FIX AND
DETERMINE" AFTER NOTICE AND HEARING "THE FAIR AND REASONABLE RATES OF
COMPENSATION" FOR THE TRANSPORTATION OF MAIL BY AIRCRAFT,  FN3  READS
LIKE A TYPICAL PUBLIC UTILITY RATE-MAKING AUTHORITY.  BOTH SUBDIVISIONS
(A) AND (B) OF SEC. 406, TO BE SURE, REFLECT SOME CHARACTERISTICS OF
RATE-MAKING WHICH ARE PECULIAR TO AIR CARRIERS.  THAT IS TRUE OF THE
METHODS SPECIFIED IN SEC. 406(A) FOR ASCERTAINING THE RATES OF
COMPENSATION - "AIRCRAFT-MILE, POUND-MILE, WEIGHT, SPACE, OR ANY
COMBINATION THEREOF, OR OTHERWISE  ... "  SPECIAL STANDARDS FOR RATE
MAKING ARE ALSO PRESCRIBED.  THE BOARD IS AUTHORIZED TO CONSIDER "THE
CONDITIONS PECULIAR TO TRANSPORTATION BY AIRCRAFT AND TO THE PARTICULAR
AIR CARRIER OR CLASS OF AIR CARRIERS" IN FIXING DIFFERENT RATES FOR
DIFFERENT AIR CARRIERS OR CLASSES OF AIR CARRIERS AND DIFFERENT CLASSES
OF SERVICE.  SEC. 406(B).  AND THE BOARD IN DETERMINING THE RATE IS
AUTHORIZED AND DIRECTED TO CONSIDER "THE NEED OF EACH SUCH AIR CARRIER
FOR COMPENSATION FOR THE TRANSPORTATION OF MAIL SUFFICIENT TO INSURE
THE PERFORMANCE OF SUCH SERVICE, AND, TOGETHER WITH ALL OTHER REVENUE
OF THE AIR CARRIER, TO ENABLE SUCH AIR CARRIER UNDER HONEST,
ECONOMICAL, AND EFFICIENT MANAGEMENT, TO MAINTAIN AND CONTINUE THE
DEVELOPMENT OF AIR TRANSPORTATION TO THE EXTENT AND OF THE CHARACTER
AND QUALITY REQUIRED FOR THE COMMERCE OF THE UNITED STATES, THE POSTAL
SERVICE, AND THE NATIONAL DEFENSE."  SEC. 406(B). 

CONSIDERABLE RELIANCE IS PLACED ON THIS LAST PROVISION FOR THE VIEW
THAT THE BOARD HAS AUTHORITY UNDER THE "MAKE EFFECTIVE" CLAUSE TO ORDER
SUCH RETROACTIVE ADJUSTMENTS OF RATES AS THE "NEED" OF THE AIR CARRIER
MAKES APPROPRIATE.  BUT SUCH A STANDARD HAS ITS COUNTERPARTS IN OTHER
LEGISLATION DEALING WITH RATE-MAKING  FN4  AND DOES NOT NECESSARILY
MARK A DEPARTURE FROM THE CUSTOMARY PATTERN OF FIXING RATES
PROSPECTIVELY.  YET, UNLESS WE FOUND A CONGRESSIONAL PURPOSE TO MAKE A
RADICAL BREAK WITH TRADITION, WE WOULD BE MOST RELUCTANT TO GIVE THE
"MAKE EFFECTIVE" CLAUSE THE BROAD MEANING WHICH PETITIONER URGES.  FOR
THE RATES OF CARRIERS AND OTHER UTILITIES FIXED BY PUBLIC AUTHORITIES,
WHILE USUALLY PROSPECTIVE, ARE SOMETIMES MADE RETROACTIVE TO THE DATE
OF THE COMMENCEMENT OF THE RATE-MAKING PROCEEDING.  SEE UNITED STATES
V. NEW YORK CENTRAL R. CO., 279 U.S. 73.  BUT, SO FAR AS WE ARE AWARE,
THEY HAVE NEVER BEEN RETROACTIVE TO AN EARLIER DATE. 

THE LANGUAGE OF THE ACT DOES NOT SUGGEST THAT CONGRESS INTENDED TO
BREAK WITH THESE TRADITIONS OF RATE-MAKING N5.  MOREOVER, THE
LEGISLATIVE HISTORY INDICATES THAT THE "MAKE EFFECTIVE" CLAUSE WAS
INSERTED ONLY TO MAKE CLEAR THAT THE RATES COULD BE MADE RETROACTIVE TO
THE DATE OF THE APPLICATION.  FN6  FINALLY THE SCHEME OF THE ACT AND
ITS UNDERLYING POLICY SEEM TO US TO PRECLUDE THE MORE EXPANSIVE READING
OF THE CLAUSE URGED ON US BY PETITIONER. 

PETITIONER'S READING OF THE ACT WOULD IN PRACTICAL EFFECT HAVE THE
TENDENCY TO TRANSFORM IT INTO A COST-PLUS SYSTEM OF REGULATION, A
CONSTRUCTION WHICH WOULD NOT HARMONIZE WITH THE APPARENT DESIGN OF THE
ACT.  THUS SEC. 406(B) AUTHORIZES THE BOARD TO FIX RATES FOR "CLASSES
OF AIR CARRIERS."  N7  IT IS PLAIN THAT THE UNIFORM RATE FOR THE CLASS
IS AN IMPORTANT REGULATORY DEVICE.  FOR SEC. 2(D) OF THE ACT LOOKS TO
THE SOUND DEVELOPMENT OF AN AIR TRANSPORTATION SYSTEM THROUGH
COMPETITION.  FN8  A UNIFORM RATE FORCES CARRIERS WITHIN A GIVEN CLASS
TO COMPETE IN SECURING REVENUE AND IN REDUCING OR CONTROLLING COSTS. 
IF THE BOARD HAD AUTHORITY ON THE BASIS OF THE CARRIER'S NEEDS TO MAKE
RATES RETROACTIVE TO ANY POINT OF TIME, THERE WOULD BE A POWERFUL
INCENTIVE TO SEEK RELIEF FROM THE UNIFORM RATE, NOT TO LIVE WITHIN IT. 

IN SUM A CONSTRUCTION WHICH WOULD MAKE IT POSSIBLE TO REVISE RATES
RETROACTIVELY TO ANY POINT OF TIME WOULD BE A REAL INNOVATION WHICH
SHOULD HAVE A MORE SOLID BASIS THAN OUR OWN PREDILECTIONS.  WE CANNOT
BUT FEEL THAT IF THE RATE-MAKING POWER WERE TO BE PUT TO SUCH A NOVEL
USE, THE PURPOSE WOULD HAVE BEEN MADE CLEAR.  IT IS TOO UNPRECEDENTED A
DEPARTURE FROM THE CONVENTIONS OF RATE-MAKING TO REST ON MERE
INFERENCE. 

IT IS POINTED OUT THAT THE BOARD APPARENTLY CONSIDERS PAST OPERATING
LOSSES IN FIXING RATES  FN9 AND THAT THEREFORE IT IS A MATTER OF NO
GREAT CONSEQUENCE IF THE RATES ARE MADE RETROACTIVE TO ONE DATE RATHER
THAN ANOTHER.  BUT THE POWER TO FIX RATES TO RECOUP PAST LOSSES IS A
DISTINCT QUESTION NOT BEFORE US.  AFFIRMED. 

FN1  SECTION 406 PROVIDES: 

"(A)  THE AUTHORITY IS EMPOWERED AND DIRECTED, UPON ITS OWN
INITIATIVE OR UPON PETITION OF THE POSTMASTER GENERAL OR AN AIR
CARRIER, (1) TO FIX AND DETERMINE FROM TIME TO TIME, AFTER NOTICE AND
HEARING, THE FAIR AND REASONABLE RATES OF COMPENSATION FOR THE
TRANSPORTATION OF MAIL BY AIRCRAFT, THE FACILITIES USED AND USEFUL
THEREFOR, AND THE SERVICES CONNECTED THEREWITH (INCLUDING THE
TRANSPORTATION OF MAIL BY AN AIR CARRIER BY OTHER MEANS THAN AIRCRAFT
WHENEVER SUCH TRANSPORTATION IS INCIDENTAL TO THE TRANSPORTATION OF
MAIL BY AIRCRAFT OR IS MADE NECESSARY BY CONDITIONS OF EMERGENCY
ARISING FROM AIRCRAFT OPERATION), BY EACH HOLDER OF A CERTIFICATE
AUTHORIZING THE TRANSPORTATION OF MAIL BY AIRCRAFT, AND TO MAKE SUCH
RATES EFFECTIVE FROM SUCH DATE AS IT SHALL DETERMINE TO BE PROPER; (2)
TO PRESCRIBE THE METHOD OR METHODS, BY AIRCRAFT-MILE, POUND-MILE,
WEIGHT, SPACE, OR ANY COMBINATION THEREOF, OR OTHERWISE, FOR
ASCERTAINING SUCH RATES OF COMPENSATION FOR EACH AIR CARRIER OR CLASS
OF AIR CARRIERS; AND (3) TO PUBLISH THE SAME; AND THE RATES SO FIXED
AND DETERMINED SHALL BE PAID BY THE POSTMASTER GENERAL FROM
APPROPRIATIONS FOR THE TRANSPORTATION OF MAIL BY AIRCRAFT. 

     .         .         .         . . 

"(B)  IN FIXING AND DETERMINING FAIR AND REASONABLE RATES OF
COMPENSATION UNDER THIS SECTION, THE AUTHORITY, CONSIDERING THE
CONDITIONS PECULIAR TO TRANSPORTATION BY AIRCRAFT AND TO THE PARTICULAR
AIR CARRIER OR CLASS OF AIR CARRIERS, MAY FIX DIFFERENT RATES FOR
DIFFERENT AIR CARRIERS OR CLASSES OF AIR CARRIERS, AND DIFFERENT
CLASSES OF SERVICE.  IN DETERMINING THE RATE IN EACH CASE, THE
AUTHORITY SHALL TAKE INTO CONSIDERATION, AMONG OTHER FACTORS, THE
CONDITION THAT SUCH AIR CARRIERS MAY HOLD AND OPERATE UNDER
CERTIFICATES AUTHORIZING THE CARRIAGE OF MAIL ONLY BY PROVIDING
NECESSARY AND ADEQUATE FACILITIES AND SERVICE FOR THE TRANSPORTATION OF
MAIL; SUCH STANDARDS RESPECTING THE CHARACTER AND QUALITY OF SERVICE TO
BE RENDERED BY AIR CARRIERS AS MAY BE PRESCRIBED BY OR PURSUANT TO LAW;
AND THE NEED OF EACH SUCH AIR CARRIER FOR COMPENSATION FOR THE
TRANSPORTATION OF MAIL SUFFICIENT TO INSURE THE PERFORMANCE OF SUCH
SERVICE, AND, TOGETHER WITH ALL OTHER REVENUE OF THE AIR CARRIER, TO
ENABLE SUCH AIR CARRIER UNDER HONEST, ECONOMICAL, AND EFFICIENT
MANAGEMENT, TO MAINTAIN AND CONTINUE THE DEVELOPMENT OF AIR
TRANSPORTATION TO THE EXTENT AND OF THE CHARACTER AND QUALITY REQUIRED
FOR THE COMMERCE OF THE UNITED STATES, THE POSTAL SERVICE, AND THE
NATIONAL DEFENSE." 

THE CIVIL AERONAUTICS BOARD TOOK THE PLACE OF THE AUTHORITY ON JUNE
30, 1940.  SEE 54 STAT. 1235. 

FN2  SEE 6 C.A.B. 595. 

FN3  SEE NOTE 1, SUPRA. 

FN4  SEE SEC. 1 OF TITLE I OF THE TRANSPORTATION ACT OF 1940, 54
STAT. 899, 49 U.S.C., NOTE PRIOR TO SEC. 1:  "IT IS HEREBY DECLARED TO
BE THE NATIONAL TRANSPORTATION POLICY OF THE CONGRESS TO PROVIDE FOR
FAIR AND IMPARTIAL REGULATION OF ALL MODES OF TRANSPORTATION SUBJECT TO
THE PROVISIONS OF THIS ACT  ...  TO  ... FOSTER SOUND ECONOMIC
CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL CARRIERS; ...  ALL
TO THE END OF DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL
TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND RAIL, AS WELL AS OTHER
MEANS, ADEQUATE TO MEET THE NEEDS OF THE COMMERCE OF THE UNITED STATES,
OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE.  ALL OF THE
PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW
TO CARRYING OUT THE ABOVE DECLARATION OF POLICY." 

FN5  THE OTHER RATE-MAKING PROVISIONS OF THE ACT LIKEWISE FOLLOW THE
CONVENTIONAL PATTERN.  SEE SEC. 1002(D) AND (E). 

FN6  THE INTERSTATE COMMERCE COMMISSION IN ITS ADMINISTRATION OF THE
AIR MAIL ACT OF 1934 AS AMENDED, 48 STAT. 933, 935, 49 STAT. 614, 616,
HAD ASSERTED THE POWER TO MAKE ITS ORDERS EFFECTIVE AS OF THE DATE OF
INITIATION OF THE PROCEEDING.  BUT THERE WAS A SHARP DIVERGENCE OF
VIEWS WITHIN THE COMMISSION OVER ITS AUTHORITY TO DO SO.  SEE AIR MAIL
COMPENSATION, 216 I.C.C. 166, 222 I.C.C. 602.  THE CONGRESSIONAL
COMMITTEES SEEMED PRIMARILY CONCERNED WITH THAT PROBLEM IN THEIR
CONSIDERATION OF THE "MAKE EFFECTIVE" CLAUSE IN THE BILLS WHICH
PRECEDED THE ONES RESULTING IN THE ACT.  SEE SENATE HEARINGS, COMMITTEE
ON INTERSTATE COMMERCE, ON S. 2 AND S. 1760, 75TH CONG., 1ST SESS. 179,
180, 239, 291, 343, 483-485, 523.  AND SEE H.R. HEARINGS, COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, ON H.R. 5234 AND H.R. 4652, 75TH
CONG., 1ST SESS. 325-327.  THE POLICY OF ADHERING TO CONVENTIONAL RATE
MAKING IS SUGGESTED BY H.R. REP. NO. 911, 75TH CONG., 1ST SESS. 18, AND
BY THE STATEMENTS OF SENATOR TRUMAN WHO WAS IN CHARGE OF THE BILL IN
THE SENATE.  81 CONG. REC. 9202, 9203, 9204. 

THIS HISTORY IS RELEVANT TO OUR PROBLEM, FOR THOUGH IT RELATES TO THE
1937 BILL WHICH WAS NOT PASSED, THE "MAKE EFFECTIVE" CLAUSE
CRYSTALLIZED AT THAT TIME AND APPEARED IN THE 1938 BILL WHICH WAS
ENACTED.  THE CONFERENCE REPORT ON THE LATTER BILL IS SILENT ON THE
"MAKE EFFECTIVE" CLAUSE, THOUGH THE FOLLOWING PASSAGE FROM IT, H.R.
REP. NO. 2635, 75TH CONG., 3D SESS. 71-72, BY ITS BRIEF EXPOSITION OF
THE POWER CONFERRED SUGGESTS THAT CONGRESS DID NOT DEPART FROM THE
CONVENTIONAL PATTERN OF RATE-MAKING WHEN IT ENACTED THE MEASURE: 

"THIS SECTION (SEC. 406) EMPOWERS THE AUTHORITY TO FIX MAIL RATES AND
SETS FORTH THE CONGRESSIONAL POLICY TO GUIDE THE AUTHORITY IN FIXING
SUCH RATES AND ENABLES THE AUTHORITY TO ADJUST RATES SO THAT THE POLICY
OF CONGRESS MAY BE PROPERLY CARRIED OUT IN THE CASE OF EACH CARRIER OR
CLASS OF CARRIERS ACCORDING TO THE NEEDS OF THE PARTICULAR CASE." 

FN7  SEC. 406(B) SUPRA, NOTE 1. 

FN8  SECTION 2 PROVIDES: 

"IN THE EXERCISE AND PERFORMANCE OF ITS POWERS AND DUTIES UNDER THIS
ACT, THE (BOARD) SHALL CONSIDER THE FOLLOWING, AMONG OTHER THINGS, AS
BEING IN THE PUBLIC INTEREST, AND IN ACCORDANCE WITH THE PUBLIC
CONVENIENCE AND NECESSITY - 

     .  .         .         .         . 

"(D)  COMPETITION TO THE EXTENT NECESSARY TO ASSURE THE SOUND
DEVELOPMENT OF AN AIR-TRANSPORTATION SYSTEM PROPERLY ADAPTED TO THE
NEEDS OF THE FOREIGN AND DOMESTIC COMMERCE OF THE UNITED STATES, OF THE
POSTAL SERVICE, AND OF THE NATIONAL DEFENSE  ...  " 

FN9  AFTER THE PRESENT CASE WAS ARGUED IN THIS COURT, THE CIVIL
AERONAUTICS BOARD, ON FEBRUARY 21, 1949, AWARDED A TEMPORARY MAIL RATE
INCREASE TO TWA EFFECTIVE MARCH 14, 1947, TO COMPENSATE IT FOR LOSSES
SUSTAINED PRIOR THERETO AS THE RESULT OF GROUNDING THE CONSTELLATION
AIRCRAFT.  AMERICAN AIRLINES, INC., ET AL., MAIL RATE INCREASES, C.A.B.
DOCKET NO. 2849, SERIAL NO. E-2484(FEB.  21, 1949).  THAT ACTION DOES
NOT RENDER THE PRESENT CASE MOOT, FOR THE NEW TEMPORARY MAIL RATE
COVERS ONLY A PART OF THE LOSSES ON THE BASIS OF WHICH A RATE INCREASE
WAS SOUGHT HERE.  NOR DO WE HAVE IN THIS CASE ANY QUESTION CONCERNING
THE POWER OF THE BOARD OVER TEMPORARY, AS DISTINGUISHED FROM FINAL,
MAIL RATES.  SEE ESSAIR, INC., TEMPORARY MAIL RATE, 6 C.A.B. 687, 690
691; IN THE MATTER OF NATIONAL AIRLINES, INC., C.A.B. DOCKET NO. 3037,
SERIAL NO. E-1271, MARCH 5, 1948. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON, DISSENTING. 

THE CIVIL AERONAUTICS BOARD ASKS US TO HOLD THAT IT IS DENIED BY ITS
ORGANIC ACT ANY POWER RETROACTIVELY TO FIX RATES FOR CARRYING AIR
MAIL.  IT HAS NOT CONVINCED ME THAT IT HAS NO POWER, WHATEVER IT SHOULD
WISELY DO WITH IT AS MATTER OF POLICY. 

THE FUNDAMENTAL PREMISE OF THE COURT'S OPINION IS THAT THE FUNCTION
OF THE BOARD IN FIXING THE AIR-MAIL RATE IS ANALOGOUS TO RATE-MAKING
FOR A RAILROAD OR A PUBLIC UTILITY.  THE TWO TYPES OF RATES ARE NOT
COMPARABLE.  "RATE" AS APPLIED TO THE GOVERNMENT'S AIR-MAIL PAYMENTS IS
AN EUPHEMISM TO EMBRACE A SUBSIDY AS WELL AS COMPENSATION.  THE STATUTE
REQUIRES THE BOARD, IN FIXING THE "RATE" FOR TRANSPORTATION OF MAIL, TO
TAKE INTO CONSIDERATION THE "NEED OF EACH SUCH AIR CARRIER FOR
COMPENSATION  ...  TO INSURE THE PERFORMANCE OF SUCH SERVICE,  ...  AND
TO ENABLE SUCH AIR CARRIER  ...  TO MAINTAIN AND CONTINUE THE
DEVELOPMENT OF AIR TRANSPORTATION TO THE EXTENT AND OF THE CHARACTER
AND QUALITY REQUIRED FOR THE COMMERCE OF THE UNITED STATES, THE POSTAL
SERVICE, AND THE NATIONAL DEFENSE."  SEC. 406(B).  THESE CONSIDERATIONS
ARE INAPPROPRIATE IN APPLYING ORDINARY UTILITY RATE-MAKING PRINCIPLES. 
MOREOVER, UTILITY RATES APPLY TO A MULTITUDE OF CUSTOMERS; THE AIR-MAIL
RATE IS PAID BY ONLY ONE - THE GOVERNMENT.  UTILITY SERVICES MUST BE
PAID FOR CURRENTLY; AIR-MAIL PAYMENTS CAN BE AND ARE BEING PAID IN LUMP
SUMS ON ACCOUNT OF ITEMS LONG PAST. 

CONGRESS, IN THE ACT BEFORE US, SET UP A SCHEME FOR DEALING WITH EACH
ACCORDING TO ITS SEPARATE NATURE.  THE RATE FOR PUBLIC CARRIAGE OF
PASSENGERS AND GOODS BY AIR LINES, OF COURSE, CANNOT BE FIXED
RETROACTIVELY ON THE BASIS OF EXPERIENCE, FOR THE PUBLIC MUST KNOW AT
THE TIME THEY TAKE SERVICE WHAT THEY ARE TO PAY FOR IT AND THE CARRIER
MUST COLLECT THEN OR NEVER.  THE ACT RECOGNIZES THIS NECESSITY WITH
RESPECT TO PASSENGERS AND CARGO.  RATES FOR TRANSPORTING THEM ARE
REQUIRED BY SEC. 403 TO BE EMBODIED IN FILED AND PUBLISHED TARIFFS,
WHICH MAY BE ALTERED ONLY AFTER HEARING AND NOTICE AND ONLY
PROSPECTIVELY.  SECTION 1002 PROVIDES THAT THE BOARD MAY INSTITUTE
PROCEEDINGS TO MODIFY THESE RATES AND MAY, AFTER PRESCRIBED PROCEDURES,
SET THE RATES THEREAFTER TO BE CHARGED.  THUS, WHEN CONGRESS WAS
DEALING WITH UTILITY RATES FOR PASSENGERS AND SHIPPERS, IT PERMITTED
ONLY PROSPECTIVE CHANGES, AND SAID SO. 

BUT CONGRESS BELIEVED THAT, IN THE INTEREST OF THE NATIONAL DEFENSE
AND COMMERCIAL AVIATION, IT HAD TO SUBSIDIZE PIONEERING AIR LINES AND
UNDERWRITE REVENUES ABOVE THOSE TO BE REALIZED FROM PASSENGER AND CARGO
CARRIAGE.  A FEASIBLE WAY TO DO IT WAS THROUGH AIR-MAIL PAYMENTS.  ITS
PLAN TO THAT EFFECT WAS DETAILED IN SEC. 406.  BUT AS TO THIS SUBSIDY
RATE, IT ENACTED NO PROHIBITION AGAINST RETROACTIVITY AND, IF IT HAD,
IT IS DIFFICULT TO SEE HOW THE BOARD WOULD HAVE AUTHORITY TO GO BACK
EVEN TO THE DATE OF THE PETITION.  ON THE CONTRARY, HOWEVER, SEC.
406(A) EMPOWERS AND DIRECTS THE BOARD TO DETERMINE THE AIR-MAIL RATE
AND "TO MAKE SUCH RATES EFFECTIVE FROM SUCH DATE AS IT SHALL DETERMINE
TO BE PROPER."  I SEE NO JUSTIFICATION FOR HOLDING THAT THIS LANGUAGE
MEANS ANYTHING LESS THAN JUST WHAT IT SAYS, OR FOR HOLDING THAT TWO
SUCH OPPOSITE KINDS OF PAYMENTS MUST BE GOVERNED BY IDENTICAL RULES. 

THE CIVIL AERONAUTICS BOARD, HOWEVER, ASKS US TO HOLD THAT THE SAME
RULES AS TO RETROSPECTIVE RATES ARE "APPLICABLE EQUALLY TO MAIL,
PASSENGER AND PROPERTY RATES UNDER THE ACT."  IT URGES THAT ITS
PROVISIONS DO NOT "CONVERT THE BOARD'S PRIMARY FUNCTION OF FIXING RATES
OF COMPENSATION FOR THE FUTURE INTO A DUTY TO AWARD AMOUNTS OF
COMPENSATION FOR THE PAST" AND THAT, IF IT SETS TOO LOW A RATE, "THE
CARRIER HAS NO REDRESS SAVE A NEW HEARING AND THE FIXING OF A MORE
ADEQUATE RATE FOR THE FUTURE."  IT CONTENDS FOR APPLICATION OF
DECISIONS BY WHICH THIS COURT "HAS REFUSED TO REQUIRE THE
CAPITALIZATION OF PAST LOSSES IN THE RATE BASE FOR THE PURPOSE OF
FIXING FUTURE RATES" OR TO ALLOW "CURRENT REIMBURSEMENT OUT OF NEW
RATES OF DEFICIENCIES ARISING FROM A FAILURE TO EARN A REASONABLE
RETURN IN PAST YEARS, OR THE CAPITALIZATION OF COSTS OF MAINTAINING
EXCESS CAPACITY DURING THE EARLY PERIOD OF OPERATION."  AND THE BOARD
ARGUED THAT IT HAS ADHERED TO SUCH RULES AND ADVANCES POLICY REASONS
WHY WE SHOULD HOLD THAT IT IS WITHOUT POWER TO DO OTHERWISE. 

I HAVE NOT BEEN ABLE TO RECONCILE THE POSITION WHICH THE BOARD TOOK
BEFORE THIS COURT AT ITS ARGUMENT ON FEBRUARY 8 AND 9 WITH WHAT APPEARS
TO BE ITS ALMOST CONTEMPORANEOUS ACTION.  ON FEBRUARY 21, 1949, THE
BOARD HANDED DOWN AN ORDER IN WHICH IT ALLOWED TO THIS VERY PETITIONER,
IN A LUMP SUM, $2,748,000 FOR THE PERIOD JULY 14, 1947, TO DECEMBER 31,
1948, AND $33,333 IN A LUMP SUM EACH MONTH THEREAFTER.  IT SAID, "THE
ABOVE PAYMENTS FOR EACH OF THESE CARRIERS ARE IN ADDITION TO, AND NOT
INCLUSIVE OF, THE MAIL RATES PROVIDED FOR IN PREVIOUS TEMPORARY OR
FINAL MAIL RATE ORDERS, FOR THE RESPECTIVE PERIODS STATED."  THE TWA
LUMP SUM OF $2,748,000 WAS TO MAKE THEM WHOLE FOR THE YEAR 1948 AND
ALSO TO PAY THEIR "GROUNDING LOSSES" FOR 1946, A YEAR PRIOR TO THE
FILING OF ITS PETITION, WHICH THE BOARD ASKS US TO HOLD AS THE LIMIT OF
BACKWARD OPERATION OF RATES.  THE BOARD SAID: 

"IN 1946, TWA INCURRED SUBSTANTIAL COSTS BECAUSE OF THE GROUNDING OF
THE CONSTELLATION AIRCRAFT.  SIMILAR COSTS WERE INCURRED BY UNITED AND
AMERICAN IN 1947 AND 1948 WHEN THE DC-6 WAS GROUNDED.  THESE COSTS ARE
MERELY ANOTHER FORM OF DEVELOPMENTAL COSTS ATTRIBUTABLE TO THE
INTRODUCTION OF A NEW AIRCRAFT TYPE.  IT IS CLEAR THAT THEY ARE, IN
THESE CASES, OF SUCH MAGNITUDE AS TO IMPOSE A FINANCIAL BURDEN UPON THE
CARRIERS OF SUCH SEVERITY AS TO OBSTRUCT THEIR CURRENT DEVELOPMENT. 
UNDER OUR STATUTORY MANDATE TO DEVELOP AIR TRANSPORTATION WE SHOULD
UNDERWRITE SUCH COSTS IN SOME APPROPRIATE MANNER." 

AT THE SAME TIME THE BOARD ISSUED A STATEMENT OF POLICY.  AS TO THE
GROUNDING COSTS WHICH THE BOARD HAD ARGUED TO THIS COURT IT HAD NO
POWER TO REIMBURSE RETROACTIVELY, IT SAID THAT IT HAD ORIGINALLY FELT
THEY WOULD NOT BE HIGH ENOUGH TO REQUIRE SPECIAL MAIL-PAY ALLOWANCE FOR
THEIR "REIMBURSEMENT."  BUT IT CONTINUED: "EXPERIENCE HAS NOT SUPPORTED
THIS VIEW" AND IT IS "DESIRABLE TO MAKE SPECIAL MAIL-RATE PROVISION FOR
ESTABLISHED LOSSES OF THIS CHARACTER."  IT ANNOUNCED THAT THIS
PETITIONER, AMONG OTHERS, IS BEING PAID FOR GROUNDING LOSSES.  "IN
ADDITION, IN VIEW OF ITS OBLIGATIONS UNDER SECTION 406(B) OF THE ACT,
DISCUSSED ABOVE, THE BOARD HAS CONCLUDED THAT THE TEMPORARY MAIL RATES
FOR UNITED AND TWA SHOULD BE INCREASED TO AN EXTENT SUFFICIENT TO MEET
THE REMAINDER OF THEIR APPROXIMATE BREAKEVEN NEEDS FOR THE YEAR 1948. 
WITH RESPECT TO THE ENTIRE RETROACTIVE PERIOD AND THE FUTURE, THE BOARD
WILL DETERMINE FINAL RATES AFTER FORMAL PROCEEDINGS WHICH WILL GIVE
CONSIDERATION TO THE FULL REASONABLE REQUIREMENTS OF THESE TWO
CARRIERS." 

WHAT I GET FROM THE BOARD'S ORDERS AND STATEMENTS IS THAT IT IS
ACTING IN A SPIRIT COMPLETELY CONTRARY TO ITS ARGUMENT TO THIS COURT
AND TO THIS COURT'S OPINION, EVEN IF THERE MAY BE A TECHNICAL
CONSISTENCY, WHICH I DOUBT.  IT APPEARS TO HAVE AUTHORIZED
CAPITALIZATION OF LOSSES FOR PERIODS BEFORE ANY RATE PETITION WAS FILED
AND THE AMORTIZATION OF THOSE LOSSES FROM SUBSIDY PAYMENTS AFTERWARD. 
I FIND FAR LESS STATUTORY AUTHORIZATION FOR SUCH A DEVICE FOR CARRYING
LOSSES FORWARD INTO CURRENT RATES THAN FOR FORTHRIGHT FIXING OF
EFFECTIVE RATES FROM SUCH PRIOR DATE AS SHALL BE PROPER.  IF THE NEED
FOR RETROACTIVITY IS SO IMPERATIVE THAT IT MUST BE MET BY EVASION, THE
POLICY ARGUMENTS OF THE BOARD AGAINST CONSTRUING THE STATUTE TO PERMIT
RETROACTIVITY FAIL.  I DO NOT KNOW THAT THESE MATTERS OF POLICY SHOULD
INFLUENCE THE COURT IN ANY EVENT, BUT IF THEY DO, MY OWN PREDILECTIONS,
UNLIKE THE COURT'S, FAVOR FIXING THE SUBSIDY ON EXPERIENCE RATHER THAN
ON PROPHECY.  IN THE LIGHT OF WHAT APPEARS TO BE THE PRACTICE, I SEE NO
REASON WHY THE STATUTE SHOULD NOT BE APPLIED SO AS TO CARRY OUT WHAT
ITS LANGUAGE CONVEYS AND WHY THE SUBSIDY RATES SHOULD NOT BE REGARDED
AS ALWAYS TENTATIVE AND SUBJECT TO REVISION EITHER TO MEET UNFORESEEN
CONTINGENCIES OR TO RECAPTURE EXCESSIVE PAYMENTS.  THE COMMISSION WOULD
NO MORE BE BOUND TO REIMBURSE EXTRAVAGANT MANAGEMENT OR IMPROVIDENT
OUTLAY AFTER IT HAS OCCURRED THAN TO ALLOW FOR IT IN ADVANCE.  IN FACT,
EXCESSIVE EXPENSE WOULD PROBABLY BE EASIER TO DETECT IN ACTUAL
STATEMENTS OF OPERATIONS THAN IN ESTIMATES. 

BUT IF I WERE TO CONSIDER ACCEPTING THE BOARD'S ARGUMENT, I WOULD AT
LEAST SET THIS CASE FOR REARGUMENT AND REQUIRE A CANDID EXPLANATION OF
WHAT APPEARS TO BE A MATERIAL DISCREPANCY BETWEEN WHAT THE BOARD HAS
LED THIS COURT TO HOLD AND THE PREMISES ON WHICH IT SEEMS ACTUALLY TO
BE PROCEEDING. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 
..END :


















NYE & NISSEN V. UNITED STATES, 336 U.S. 613 


NO. 228.  ARGUED MARCH 3, 1949.  - DECIDED APRIL 18, 1949.  - 168 F.2D
846, AFFIRMED. 


PETITIONERS ARE A CORPORATION AND ITS PRESIDENT.  AN INDICTMENT
CHARGED THEM (AND THREE EMPLOYEES OF THE CORPORATION), IN THE FIRST
COUNT, WITH CONSPIRACY TO DEFRAUD THE UNITED STATES FROM 1938 TO 1945,
IN VIOLATION OF SEC. 37 OF THE CRIMINAL CODE (NOW 18 U.S.C. SEC. 371);
AND, IN SIX SUBSTANTIVE COUNTS, WITH FILING FALSE INVOICES WITH AN
AGENCY OF THE UNITED STATES, IN VIOLATION OF SEC. 35 OF THE CRIMINAL
CODE (NOW 18 U.S.C. SEC. 1001).  THE CASE INVOLVED FRAUDULENT PRACTICES
IN THE SALE OF EGGS AND CHEESE TO THE ARMY, NAVY AND OTHER GOVERNMENT
AGENCIES.  PETITIONERS WERE CONVICTED ON ALL COUNTS.  HELD: 

1.  AS TO THE INDIVIDUAL PETITIONER, THERE WAS NO FATAL VARIANCE
BETWEEN THE CONSPIRACY CHARGED AND THE PROOF, SINCE THE EVIDENCE AMPLY
SUPPORTED A FINDING BY THE JURY OF A SINGLE CONSPIRACY CONTINUING
DURING THE ENTIRE PERIOD.  PP. 616-617. 

2.  EVIDENCE OF THE PRESENTATION OF FALSE INVOICES OTHER THAN AND IN
ADDITION TO THOSE CHARGED IN THE INDICTMENT WAS ADMISSIBLE ON THE ISSUE
OF INTENT.  P. 618. 

3.  THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE FINDING OF THE JURY
THAT THE INDIVIDUAL PETITIONER AIDED AND ABETTED THE COMMISSION OF THE
OFFENSES CHARGED IN THE SUBSTANTIVE COUNTS; AND, SINCE THE CASE WAS
SUBMITTED TO THE JURY ON THAT THEORY AND THE CHARGE OF THE TRIAL COURT
TO THE JURY WAS ADEQUATE, THE CONVICTION MUST BE AFFIRMED.  PINKERTON
V. UNITED STATES, 328 U.S. 640, DISTINGUISHED.  PP. 618-620. 

(A)  THE FACT THAT SOME OF THE EVIDENCE OF THE SUBSTANTIVE OFFENSES
WAS ALSO EVIDENCE OF THE CONSPIRACY IS IMMATERIAL.  P. 619. 

(B)  WHERE A CONSPIRACY AS WELL AS A SUBSTANTIVE OFFENSE IS CHARGED,
IT MAKES NO DIFFERENCE SO FAR AS AIDING AND ABETTING IS CONCERNED
WHETHER THE SUBSTANTIVE OFFENSE IS COMMITTED PURSUANT TO THE
CONSPIRACY.  PP. 619-620. 

(C)  THE FACT THAT, AS TO SUBSTANTIVE OFFENSES CHARGED, A CASE MIGHT
CONCEIVABLY BE SUBMITTED TO THE JURY ON EITHER THE CONSPIRACY THEORY OR
ON THE THEORY OF AIDING AND ABETTING, IS IRRELEVANT; IT IS SUFFICIENT
IF THE PROOF ADDUCED AND THE BASIS ON WHICH IT WAS SUBMITTED ARE
SUFFICIENT TO SUPPORT THE VERDICT.  P. 620. 

NYE & NISSEN, A CORPORATION, ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

PETITIONERS, A CORPORATION AND ITS PRESIDENT, WERE CONVICTED ON ALL
COUNTS OF AN INDICTMENT CHARGING THEM AND OTHERS WITH CONSPIRACY TO
DEFRAUD THE UNITED STATES IN VIOLATION OF SEC. 37 OF THE CRIMINAL CODE
(NOW 18 U.S.C. SEC. 371), AND WITH FILING FALSE INVOICES WITH AN AGENCY
OF THE UNITED STATES IN VIOLATION OF SEC. 35 OF THE CRIMINAL CODE (NOW
18 U.S.C. SEC. 1001).  THE COURT OF APPEALS AFFIRMED.  168 F.2D 846. 
THIS COURT GRANTED CERTIORARI.  335 U.S. 852.  AFFIRMED, P. 620. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

NYE & NISSEN IS A CORPORATION WHICH DURING THE YEARS COVERED BY THE
INDICTMENT WAS ENGAGED IN THE BUSINESS OF PURCHASING AND SELLING EGGS,
BUTTER, AND CHEESE IN SAN FRANCISCO.  THROUGHOUT THIS PERIOD MONCHARSH
WAS PRESIDENT OF THE CORPORATION, ONE OF ITS DIRECTORS, AND THE OWNER
OF ONE-THIRD OF THE STOCK OF THE HOLDING COMPANY WHICH HAD SOLE
OWNERSHIP OF NYE & NISSEN.  MONCHARSH'S MOTHER OWNED A ONE-THIRD
INTEREST IN THE HOLDING COMPANY, WHILE THE OTHER THIRD WAS OWNED BY ONE
BAUM WHO LIVED IN NEW YORK.  BERMAN AND GODDARD WERE BROTHERS-IN-LAW OF
MONCHARSH - THE FORMER BEING CITY SALES MANAGER OF NYE & NISSEN IN
CHARGE OF THE COMPANY'S RETAIL SALESMEN, THE LATTER BEING SHIPPING AND
RECEIVING CLERK.  MENGES WAS ANOTHER EMPLOYEE. 

DURING THE PERIOD FROM 1938 TO 1944, NYE & NISSEN MADE LARGE SALES OF
ITS PRODUCTS TO THE ARMY AND NAVY AND, AFTER DECEMBER, 1943, TO
OPERATORS OF VARIOUS VESSELS HAVING GENERAL AGENCY CONTRACTS WITH THE
WAR SHIPPING ADMINISTRATION. 

AN INDICTMENT IN SEVEN COUNTS WAS RETURNED ON JUNE 20, 1945, AGAINST
NYE & NISSEN, MONCHARSH, BERMAN, GODDARD AND MENGES.  THE FIRST COUNT
CHARGED THE DEFENDANTS WITH HAVING CONSPIRED TO DEFRAUD THE UNITED
STATES FROM 1938 TO 1945, IN VIOLATION OF SEC. 37 OF THE CRIMINAL CODE,
18 U.S.C. SEC. 88,  FN1  NOW SEC. 371, BY DESIGNATED FRAUDULENT
PRACTICES TO WHICH WE WILL REFER.  THE OTHER SIX COUNTS CHARGED THE
DEFENDANTS WITH VIOLATIONS OF SEC. 35 OF THE CRIMINAL CODE, 18 U.S.C.
SEC. 80,  FN2  NOW SEC. 1001, BY MISREPRESENTING IN INVOICES PRESENTED
TO THE WAR SHIPPING ADMINISTRATION IN APRIL AND MAY, 1944, THE WEIGHTS,
GRADES, AND PRICES OF SPECIFIED SALES OF EGGS AND CHEESE. 

MENGES WAS ACQUITTED.  BERMAN AND GODDARD WERE FOUND GUILTY ON ALL
COUNTS, SENTENCED TO A YEAR AND A DAY ON EACH COUNT, THE TERMS TO RUN
CONCURRENTLY, AND FINED $700.  THEY DID NOT APPEAL.  NYE & NISSEN WAS
FOUND GUILTY ON ALL COUNTS AND FINED $5,000 ON EACH.  MONCHARSH WAS
CONVICTED ON ALL COUNTS AND SENTENCED TO TWO YEARS' IMPRISONMENT ON THE
FIRST AND TO FIVE YEARS ON EACH OF THE OTHER SIX, ALL SEVEN TERMS TO
RUN CONCURRENTLY.  HE WAS ALSO FINED $5,000 ON EACH COUNT.  ON APPEAL
THE JUDGMENTS OF CONVICTION OF NYE & NISSEN AND MONCHARSH WERE
AFFIRMED.  168 F.2D 846.  THE CASE IS HERE ON A PETITION FOR CERTIORARI
WHICH WE GRANTED BECAUSE OF DOUBTS WHETHER THE CONVICTION OF MONCHARSH
ON THE SUBSTANTIVE COUNTS COULD BE SUSTAINED UNDER THE THEORY OF
PINKERTON V. UNITED STATES, 328 U.S. 640, ON WHICH THE COURT OF APPEALS
SEEMED TO RELY. 

TWO PRELIMINARY QUESTIONS ARE PRESENTED.  IT IS ARGUED IN THE FIRST
PLACE THAT THERE WAS A VARIANCE PREJUDICIAL TO MONCHARSH BETWEEN THE
CONSPIRACY CHARGED AND THE PROOF, IN THAT THE EVIDENCE TENDED TO SHOW
THE EXISTENCE OF TWO SEPARATE CONSPIRACIES OF DIFFERENT CHARACTERS AND
INVOLVING DIFFERENT PERSONS.  THE CONTENTION IS THAT THE CONSPIRACY
CHARGED WAS A CONTINUING ONE FROM 1938 TO 1945, AND INVOLVED THE
CIRCUMVENTION OF THE GOVERNMENT'S INSPECTION SYSTEM WITH RELATION TO
THE SALE OF EGGS.  IT IS SAID THAT THE PROOF SHOWED TWO SEPARATE AND
DISTINCT CONSPIRACIES - THE FIRST EMBRACING BERMAN, GODDARD, MONCHARSH
AND MENGES IN AN UNDERTAKING TO DEFRAUD THE UNITED STATES BY IMPEDING
AND IMPAIRING THE GOVERNMENT'S INSPECTION SYSTEM WITH RELATION TO THE
SALES OF EGGS TO THE ARMY AND NAVY FROM 1938 TO 1942; THE SECOND
EMBRACING BERMAN AND GODDARD ALONE IN AN AGREEMENT IN 1943 AND 1944, TO
FILE FALSE VOUCHERS WITH THE WAR SHIPPING ADMINISTRATION.  WE NEED NOT
TAKE THE SPACE TO RELATE WHY UNDER THAT THEORY MONCHARSH IS SAID TO
HAVE BEEN PREJUDICED, BECAUSE THE ARGUMENT THAT THERE WAS A VARIANCE
SEEMS TO US TO LACK MERIT.  THE CASE WAS SUBMITTED TO THE JURY ON THE
BASIS OF A SINGLE CONSPIRACY THROUGHOUT THE PERIOD ALLEGED IN THE
INDICTMENT.  THAT WAS PROPER, FOR AS WE READ THE INDICTMENT IT CHARGED
A SINGLE CONSPIRACY TO DEFRAUD THE UNITED STATES IN VARIOUS WAYS:  BY
GRADING AND SELLING TO AGENCIES OF THE GOVERNMENT INFERIOR PRODUCTS
THROUGH FRAUDS PRACTICED UPON ITS INSPECTORS AND REPRESENTATIVES; BY
IMPEDING AND DEFEATING THE FUNCTIONS OF GOVERNMENT AGENCIES IN THE
INSPECTION, GRADING, WEIGHING, AND PURCHASE OF EGGS, BUTTER, AND
CHEESE; BY UTILIZING VARIOUS SCHEMES TO CIRCUMVENT AND AVOID THE
STANDARDS, GRADES, WEIGHTS, AND SPECIFICATIONS TO WHICH THE ORDERS WERE
SUBJECT; AND BY MISREPRESENTING THE GRADE, WEIGHT, AND PRICE OF EGGS,
BUTTER, AND CHEESE.  THE FACT THAT CERTAIN TYPES OF FRAUDULENT
PRACTICES OCCURRED DURING ONE PERIOD AND OTHER TYPES AT DIFFERENT
PERIODS IS WITHOUT SIGNIFICANCE.  THE CIRCUMVENTION OF THE INSPECTION
SYSTEM AND THE PRESENTATION OF FALSE INVOICES WERE PART AND PARCEL OF
THE SAME CONSPIRACY AS CHARGED AND PROVED.  THERE WAS AN ABUNDANCE OF
EVIDENCE, AS THE COURT OF APPEALS HELD, FROM WHICH THE JURY COULD
CONCLUDE THAT THERE WAS ONE CONTINUOUS AND PERSISTENT CONSPIRACY TO
DEFRAUD.  IT IS CONCEIVABLE THAT THE JURY MIGHT CONCLUDE THAT BEGINNING
IN 1943 OR THEREABOUTS MONCHARSH SEVERED HIMSELF FROM THE CONSPIRACY
AND THAT HIS SUBORDINATES CARRIED IT FORWARD ON THEIR OWN.  BUT WE
COULD NOT REVERSE THEM IF THAT THEORY TAXED THEIR CREDULITY. 

IT IS ARGUED IN THE SECOND PLACE THAT THE TRIAL COURT ERRED IN
ADMITTING AGAINST MONCHARSH EVIDENCE OF CRIMES SIMILAR TO THOSE CHARGED
IN THE SUBSTANTIVE COUNTS TO PROVE THE GUILTY INTENT WITH WHICH THE
SUBSTANTIVE ACTS WERE COMMITTED.  EACH OF THE SIX SUBSTANTIVE COUNTS
CHARGED THE PRESENTATION OF A SEPARATE FALSE INVOICE.  THE EVIDENCE
SHOWED THE PRESENTATION OF ELEVEN OTHER FALSE INVOICES.  THIS WAS PART
OF THE EVIDENCE RECEIVED IN SUPPORT OF THE CONSPIRACY COUNT.  THE TRIAL
COURT ALSO ADMITTED IT AT THE CONCLUSION OF THE CASE "FOR THE SOLE
PURPOSE OF PROVING GUILTY INTENT, MOTIVE, OR GUILTY KNOWLEDGE" OF THE
DEFENDANTS.  EVIDENCE THAT SIMILAR AND RELATED OFFENSES WERE COMMITTED
IN THIS PERIOD TENDED TO SHOW A CONSISTENT PATTERN OF CONDUCT HIGHLY
RELEVANT TO THE ISSUE OF INTENT.  FN3 

THE PRINCIPAL QUESTION IN THE CASE PERTAINS TO THE CHARGE CONCERNING
THE SUBSTANTIVE OFFENSES AND THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT
THEM. 

IN PINKERTON V. UNITED STATES, SUPRA, A CONSPIRACY AND SUBSTANTIVE
OFFENSES WERE CHARGED.  WE HELD THAT A CONSPIRATOR COULD BE HELD GUILTY
OF THE SUBSTANTIVE OFFENSE EVEN THOUGH HE DID NO MORE THAN JOIN THE
CONSPIRACY, PROVIDED THAT THE SUBSTANTIVE OFFENSE WAS COMMITTED IN
FURTHERANCE OF THE CONSPIRACY AND AS A PART OF IT.  A VERDICT ON THAT
THEORY REQUIRES SUBMISSION OF THOSE FACT ISSUES TO THE JURY.  THAT WAS
NOT DONE HERE.  HENCE MONCHARSH ARGUES THAT HE IS ENTITLED TO A NEW
TRIAL. 

THE DIFFICULTY WITH THAT ARGUMENT IS THAT THE CASE WAS SUBMITTED TO
THE JURY ON AN EQUALLY VALID THEORY.  THE TRIAL COURT CHARGED THAT ONE
"WHO AIDS, ABETS, COUNSELS, COMMANDS, INDUCES, OR PROCURES THE
COMMISSION OF AN ACT IS AS RESPONSIBLE FOR THAT ACT AS IF HE COMMITTED
IT DIRECTLY."  THAT THEORY IS WELL ENGRAINED IN THE LAW.  SEE SEC. 332
OF THE CRIMINAL CODE, 18 U.S.C. SEC. 550, FN4  NOW SEC. 2; UNITED
STATES V. JOHNSON, 319 U.S. 503, 518; UNITED STATES V. DOTTERWEICH, 320
U.S. 277, 281.  IN ORDER TO AID AND ABET ANOTHER TO COMMIT A CRIME IT
IS NECESSARY THAT A DEFENDANT "IN SOME SORT ASSOCIATE HIMSELF WITH THE
VENTURE, THAT HE PARTICIPATE IN IT AS IN SOMETHING THAT HE WISHES TO
BRING ABOUT, THAT HE SEEK BY HIS ACTION TO MAKE IT SUCCEED."  L. HAND,
J., IN UNITED STATES V. PEONI, 100 F.2D 401, 402. 

THERE IS NO DIRECT EVIDENCE TYING MONCHARSH TO THE SIX FALSE INVOICES
INVOLVED IN THE SUBSTANTIVE COUNTS.  YET THERE IS CIRCUMSTANTIAL
EVIDENCE WHOLLY ADEQUATE TO SUPPORT THE FINDING OF THE JURY THAT
MONCHARSH AIDED AND ABETTED IN THE COMMISSION OF THOSE OFFENSES.  THUS
THERE IS EVIDENCE THAT HE WAS THE PROMOTER OF A LONG AND PERSISTENT
SCHEME TO DEFRAUD, THAT THE MAKING OF FALSE INVOICES WAS A PART OF THAT
PROJECT, THAT THE MAKERS OF THE FALSE INVOICES WERE MONCHARSH'S
SUBORDINATES, THAT HIS FAMILY WAS THE CHIEF OWNER OF THE BUSINESS, THAT
HE WAS THE MANAGER OF IT, THAT HIS CHIEF SUBORDINATES WERE HIS BROTHERS
IN-LAW, THAT HE HAD CHARGE OF THE OFFICE WHERE THE INVOICES WERE MADE
OUT. 

THOSE ACTIVITIES EXTENDED THROUGHOUT THE PERIOD WHEN THE SUBSTANTIVE
CRIMES WERE COMMITTED.  THEY CONSTITUTE AMPLE EVIDENCE IN A RECORD
REEKING WITH FRAUD THAT MONCHARSH WAS ASSOCIATED WITH THE PRESENTATION
OF THE SIX FALSE INVOICES.  THE FACT THAT SOME OF THAT EVIDENCE MAY
HAVE SERVED DOUBLE DUTY BY ALSO SUPPORTING THE CHARGE OF CONSPIRACY IS
OF COURSE IMMATERIAL. 

WE SEE THEREFORE NO REASON TO EXCULPATE HIM AS AN AIDER AND ABETTOR. 
THERE WAS NO INADEQUACY IN THE CHARGE TO THE JURY ON THAT THEORY.  NOR
WAS THE SUBMISSION IN CONFLICT WITH PINKERTON V. UNITED STATES, SUPRA.
THE RULE OF THAT CASE DOES SERVICE WHERE THE CONSPIRACY WAS ONE TO
COMMIT OFFENSES OF THE CHARACTER DESCRIBED IN THE SUBSTANTIVE COUNTS. 
AIDING AND ABETTING HAS A BROADER APPLICATION.  IT MAKES A DEFENDANT A
PRINCIPAL WHEN HE CONSCIOUSLY SHARES IN ANY CRIMINAL ACT WHETHER OR NOT
THERE IS A CONSPIRACY.  AND IF A CONSPIRACY IS ALSO CHARGED, IT MAKES
NO DIFFERENCE SO FAR AS AIDING AND ABETTING IS CONCERNED WHETHER THE
SUBSTANTIVE OFFENSE IS DONE PURSUANT TO THE CONSPIRACY.  PINKERTON V.
UNITED STATES IS NARROW IN ITS SCOPE.  AIDING AND ABETTING RESTS ON A
BROADER BASE; IT STATES A RULE OF CRIMINAL RESPONSIBILITY FOR ACTS
WHICH ONE ASSISTS ANOTHER IN PERFORMING.  THE FACT THAT A PARTICULAR
CASE MIGHT CONCEIVABLY BE SUBMITTED TO THE JURY ON EITHER THEORY IS
IRRELEVANT.  IT IS SUFFICIENT IF THE PROOF ADDUCED AND THE BASIS ON
WHICH IT WAS SUBMITTED WERE SUFFICIENT TO SUPPORT THE VERDICT. 
AFFIRMED. 

FN1  "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." 

FN2  "WHOEVER SHALL MAKE OR CAUSE TO BE MADE OR PRESENT OR CAUSE TO
BE PRESENTED, FOR PAYMENT OR APPROVAL, TO OR BY ANY PERSON OR OFFICER
IN THE CIVIL, MILITARY, OR NAVAL SERVICE OF THE UNITED STATES, OR ANY
DEPARTMENT THEREOF, OR 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 DEPARTMENT OR OFFICER THEREOF, OR ANY
CORPORATION IN WHICH THE UNITED STATES OF AMERICA IS A STOCKHOLDER,
KNOWING SUCH CLAIM TO BE FALSE, FICTITIOUS, OR FRAUDULENT; OR WHOEVER
SHALL KNOWINGLY AND WILLFULLY FALSIFY OR CONCEAL OR COVER UP BY ANY
TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKE OR CAUSE TO BE MADE
ANY FALSE OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKE OR USE
OR CAUSE TO BE MADE OR USED ANY FALSE BILL, RECEIPT, VOUCHER, ROLL,
ACCOUNT, CLAIM, CERTIFICATE, AFFIDAVIT, OR DEPOSITION, KNOWING THE SAME
TO CONTAIN ANY FRAUDULENT OR FICTITIOUS STATEMENT OR ENTRY 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." 

FN3  SEE 2 WIGMORE, EVIDENCE (3D ED., 1940) SECS. 302-304; 1 WHARTON,
CRIMINAL EVIDENCE (11TH ED., 1935) SECS. 349-352. 

FN4  "WHOEVER DIRECTLY COMMITS ANY ACT CONSTITUTING AN OFFENSE
DEFINED IN ANY LAW OF THE UNITED STATES, OR AIDS, ABETS, COUNSELS,
COMMANDS, INDUCES, OR PROCURES ITS COMMISSION, IS A PRINCIPAL." 

MR. JUSTICE FRANKFURTER, DISSENTING. 

SCARCELY MORE THAN A RECITAL OF THE HISTORY OF THESE PROCEEDINGS WILL
EXPOSE THE REASONS WHY I CANNOT AGREE WITH THE COURT. 

MONCHARSH, WITH THE OTHER DEFENDANTS, WAS INDICTED ON SEVEN COUNTS. 
THE FIRST COUNT CHARGED CONSPIRACY TO DEFRAUD THE UNITED STATES.  THE
OTHER SIX COUNTS CHARGED THE PRESENTATION OF FALSE INVOICES TO THE WAR
SHIPPING ADMINISTRATION.  THE TRIAL COURT CORRECTLY INSTRUCTED THE JURY
AS TO THE FINDINGS NECESSARY TO SUPPORT A CONVICTION OF GUILTY ON THE
CONSPIRACY COUNT; IT ALSO CORRECTLY DEFINED WHAT IS NECESSARY TO
CONCLUDE THAT THE DEFENDANT HAD AIDED AND ABETTED COMMISSION OF THE
SUBSTANTIVE CRIMES CHARGED IN THE REMAINING COUNTS.  ON APRIL 6, 1946,
THE JURY FOUND MONCHARSH GUILTY AS CHARGED ON ALL COUNTS.  HE APPEALED,
CHALLENGING, INTER ALIA, THE SUFFICIENCY OF THE EVIDENCE AS TO EACH. 
TO SUSTAIN ON APPEAL THE CONVICTION FOR THE SUBSTANTIVE CRIMES, THE
GOVERNMENT CHOSE NOT TO INSIST UPON THE SUFFICIENCY OF THE EVIDENCE TO
SUSTAIN A FINDING BY THE JURY THAT MONCHARSH HAD AIDED AND ABETTED THE
COMMISSION OF THE SUBSTANTIVE OFFENSES.  IT URGED INSTEAD THE
APPLICABILITY OF THE DECISION OF THIS COURT IN PINKERTON V. UNITED
STATES, 328 U.S. 640, DECIDED JUNE 10, 1946.  THE COURT OF APPEALS,
REGARDING THAT CASE AS CONTROLLING, WAS ELOQUENTLY SILENT AS TO THE
SUFFICIENCY OF THE EVIDENCE TO SUSTAIN A FINDING OF AIDING AND
ABETTING. 

THIS COURT NOW FINDS THAT THE THEORY OF THE PINKERTON CASE CANNOT
SUPPORT THE CONVICTION.  I AGREE THAT IT CANNOT.  THE CHARGE TO THE
JURY IN THAT CASE MADE EXPLICIT THAT IN ORDER TO SUPPLY THE LACK OF
DIRECT EVIDENCE OF PARTICIPATION IN THE SUBSTANTIVE OFFENSES, THE JURY
COULD REGARD THEIR FINDING, IF THEY MADE ONE, THAT A CONSPIRACY EXISTED
AS SUFFICIENT TO SUPPORT A CONVICTION ON THOSE COUNTS, BUT IT COULD DO
SO ONLY "PROVIDED THE ACTS REFERRED TO IN THE SUBSTANTIVE COUNTS WERE
ACTS IN FURTHERANCE OF THE UNLAWFUL CONSPIRACY  ...  "  328 U.S. 640,
645-46, N. 6.  HERE ALSO DIRECT EVIDENCE WAS LACKING, BUT THERE WAS NO
SUCH CHARGE, AND SO I JOIN THE COURT IN REJECTING THE APPLICABILITY OF
THE PINKERTON THEORY. 

THE COURT THUS RECOGNIZES THAT THE PINKERTON DOCTRINE IS AVAILABLE
ONLY IF (1) THERE IS A CONNECTION BETWEEN THE CONDUCT OF THE CONSPIRACY
AND THE COMMISSION OF THE SUBSTANTIVE OFFENSES, AND (2) THE JURY HAS
BEEN INSTRUCTED THAT EVIDENCE ESTABLISHING GUILT OF CONSPIRACY CANNOT
BE USED AS A BASIS FOR CONVICTION UPON THE SUBSTANTIVE COUNTS UNLESS IT
HAS FOUND THE NECESSARY CONNECTION TO EXIST.  THE IMPORTANCE OF THESE
REQUIREMENTS LIES IN THIS:  ONLY WHEN A JURY HAS BEEN PROPERLY
INSTRUCTED AS TO THE RELEVANT STANDARDS TO BE APPLIED TO THE EVIDENCE
DOES A BASIS EXIST FOR DETERMINING WHETHER EVIDENCE SUFFICIENT TO
SUPPORT THE VERDICT WAS PRESENTED TO IT.  SEE BOLLENBACH V. UNITED
STATES, 326 U.S. 607, 613-615.  THE RELEVANT QUESTION IS NOT WAS THE
EVIDENCE SUFFICIENT, BUT WAS IT SUFFICIENT TO FULFILL THE REQUIRED
STANDARDS. 

IF THIS WERE ALL, WE SHOULD REVERSE EVEN THOUGH THE RECORD CONTAINED
EVIDENCE WHICH WOULD HAVE SUPPORTED A FINDING THAT THE ACTS REFERRED TO
IN THE SUBSTANTIVE COUNTS WERE ACTS IN FURTHERANCE OF THE UNLAWFUL
CONSPIRACY.  BUT THERE REMAINS THE POSSIBILITY OF AFFIRMING ON THE
GROUND THAT THE RECORD NEVERTHELESS CONTAINS EVIDENCE SUFFICIENT TO
SUPPORT CONVICTION FOR THE SUBSTANTIVE COUNTS UPON THE THEORY OF AIDING
AND ABETTING, SINCE THE TRIAL COURT DID SUBMIT THE SUBSTANTIVE COUNTS
TO THE JURY ON A LEGALLY PROPER EXPOSITION OF THAT THEORY AND THE JURY
APPARENTLY FOUND THAT THE EVIDENCE FULFILLED THE STANDARDS
ESTABLISHED.  BUT THE DEFENDANT CHALLENGES THE JURY'S RIGHT SO TO FIND;
HE INSISTS THAT THE EVIDENCE IS INSUFFICIENT TO ESTABLISH HIS
RESPONSIBILITY AS AN AIDER AND ABETTOR.  AS THE CASE CAME BEFORE THE
COURT OF APPEALS IT DID NOT FEEL CALLED UPON TO MEET THIS CHALLENGE. 
THIS WAS EVIDENTLY DUE TO THE FACT THAT THE GOVERNMENT HAD SHIFTED ITS
POSITION - A SHIFT DOUBTLESS INDUCED BY THE FACT THAT THE PINKERTON
DECISION, RENDERED AFTER THE CASE WENT TO THE JURY, OFFERED A TEMPTING
SHORT-CUT BY WHICH TO SUSTAIN THE VERDICT. 

IT MAY WELL BE THAT THE RECORD SUPPORTS THE JURY'S FINDING OF GUILT
ON THE SUBSTANTIVE COUNTS.  BUT THAT QUESTION CAN BE ANSWERED ONLY BY
FACING PETITIONER'S CHALLENGE TO THE INSUFFICIENCY OF THE EVIDENCE. 
THIS CHALLENGE IS HARDLY MET BY EXAMINING BITS AND PIECES OF THE RECORD
OR BY RELIANCE ON ATMOSPHERIC EMANATIONS OF GUILT.  THE WHOLE RECORD
MUST BE CANVASSED, AND THE STATE OF THIS COURT'S BUSINESS PRECLUDES
SUCH AN UNDERTAKING.  IT IS A TASK ESPECIALLY TO BE AVOIDED IN VIEW OF
THE PROVISION OF THE EVARTS ACT OF 1891, UNDERLINED BY THE JUDICIARY
ACT OF 1925, MAKING CRIMINAL APPEALS FINAL IN THE COURTS OF APPEALS,
RESERVING TO THIS COURT TO GRANT FURTHER REVIEW IN THOSE RARE INSTANCES
WHERE A SERIOUS ISSUE OF LAW OR A CONFLICT BETWEEN THE COURTS OF
APPEALS PRESENTS AN ISSUE OF TRUE PUBLIC IMPORTANCE.  THE QUESTION OF
EVIDENTIARY SUFFICIENCY HERE AT ISSUE EXEMPLIFIES PRECISELY THOSE
BURDENSOME FEATURES WHICH LED CONGRESS TO FREE THIS COURT FROM SUCH A
WASTEFUL RESPONSIBILITY.  THE RECORD COMPRISES TWELVE VOLUMES,
INCLUDING 4,630 PAGES.  IT IS NOT CONCEIVABLE THAT THE CASE WOULD HAVE
BEEN BROUGHT HERE FOR THE PURPOSE OF CANVASSING SUCH A RECORD.  WE
SHOULD NOT NOW UNDERTAKE THE TASK MERELY BECAUSE THE NEED TO DO SO IS
UNEXPECTEDLY PRESENTED, NOR DO WE CONTRIBUTE TO SOUND JUDICIAL
ADMINISTRATION BY ADOPTING A CONCLUSION, ON A NECESSARILY PARTIAL
EXAMINATION OF THE RECORD, WHICH THE COURT OF APPEALS ITSELF, THOUGH IT
MUST HAVE EXAMINED THE RECORD, REFRAINED FROM ADOPTING.  FN1  OUR DUTY
IS NOT TO SUSTAIN MERELY ON THE BASIS OF A GENERAL SENSE THAT CRIME HAS
BEEN COMMITTED; OUR DUTY IS TO SUSTAIN ONLY IF THE APPLICABLE
PROCEDURAL REQUIREMENTS HAVE BEEN SATISFIED.  NOW THAT THE THEORY HAS
BEEN REJECTED WHICH MADE IT UNNECESSARY FOR THE COURT OF APPEALS TO
PASS ON THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CHARGE OF AIDING
AND ABETTING, WE SHOULD REMAND THE CASE SO THAT IT MAY DO SO.  BATES V.
UNITED STATES, 323 U.S. 15. 

PLAINLY THE COURT CANNOT UNDERTAKE THE TASK FROM WHICH CONGRESS HAS
HAPPILY RELIEVED IT.  BY FAILING TO DO SO, HOWEVER, IT LEAVES ROOM FOR
DOUBT WHETHER IT HAS REGARDED THE CONVICTION FOR CONSPIRACY AS THE
DAMNING FACT WHICH ESTABLISHES GUILT OF THE SUBSTANTIVE OFFENSES. 
GRANTED THAT EVIDENCE TENDING TO ESTABLISH GUILT OF THE CONSPIRACY MAY
ALSO BE RELEVANT TO ESTABLISH ASSOCIATION WITH THE SUBSTANTIVE CRIMES,
IT IS WHOLLY IMMATERIAL, IN THE ABSENCE OF SUCH AN INSTRUCTION AS THAT
GIVEN IN THE PINKERTON CASE, THAT THE DEFENDANT HAS BEEN FOUND GUILTY
OF CONSPIRACY.  YET THE COURT POINTS TO THE "EVIDENCE THAT HE WAS THE
PROMOTER OF A LONG AND PERSISTENT SCHEME TO DEFRAUD," AND ADDS THAT
"THOSE ACTIVITIES EXTENDED THROUGHOUT THE PERIOD WHEN THE SUBSTANTIVE
CRIMES WERE COMMITTED."  THE FORMER STATEMENT ON ITS FACE IS NO MORE
THAN A WAY OF SAYING THAT HE WAS CONVICTED OF A CONSPIRACY TO DEFRAUD,
AND SURELY THE FACT THAT THIS SCHEME WAS CONTEMPORANEOUS WITH THE
COMMISSION OF UNRELATED CRIMES DOES NOT SUPPLY THE LACK OF AN
INSTRUCTION WHICH WOULD MAKE GUILT OF PARTICIPATION IN IT AVAILABLE AS
PROOF OF AIDING AND ABETTING THOSE CRIMES. 

THE INSTRUCTION GIVEN IN THE PINKERTON CASE WAS NEEDED TO INFORM THE
JURY OF THE CONDITIONS UNDER WHICH THEY MIGHT USE A FINDING THAT THE
DEFENDANTS WERE GUILTY OF CONSPIRACY AS CIRCUMSTANTIAL EVIDENCE OF
GUILT OF THE SUBSTANTIVE OFFENSES.  AN INSTRUCTION AS TO AIDING AND
ABETTING SERVES NO SUCH FUNCTION, FOR IT LEAVES WHOLLY AT LARGE THE
BEARING OF THE CRIME OF CONSPIRACY UPON THE SUBSTANTIVE OFFENSES.  FOR
THE SAME REASONS, THEREFORE, THAT IT CANNOT BE ASSUMED, IN THE ABSENCE
OF SUCH AN INSTRUCTION AS THAT GIVEN IN THE PINKERTON CASE, THAT THE
ACTS REFERRED TO IN THE SUBSTANTIVE COUNTS WERE ACTS IN FURTHERANCE OF
THE UNLAWFUL CONSPIRACY, SO IT CANNOT BE ASSUMED THAT THE ACTS
CONSTITUTING THE CONSPIRACY WERE FOUND BY THE JURY TO BE ACTS AIDING
AND ABETTING THE SUBSTANTIVE OFFENSES.  WITHOUT MORE, THE AIDING AND
ABETTING INSTRUCTION WAS SUFFICIENT ONLY TO ENTITLE THE JURY TO DRAW
INFERENCES SUPPLYING THE LACK OF EVIDENCE OF THE DEFENDANT'S DIRECT
PARTICIPATION IN THE SUBSTANTIVE OFFENSES FROM THE CIRCUMSTANTIAL
EVIDENCE OFFERED TO ESTABLISH COMMISSION OF THOSE OFFENSES.  LACKING A
PINKERTON INSTRUCTION, THE FINDING THAT A CONSPIRACY EXISTED CANNOT BE
USED TO FILL OUT THAT CIRCUMSTANTIAL EVIDENCE. 

I AM LEFT IN DOUBT, THEREFORE, WHETHER IN LIEU OF A CHARGE TO THE
JURY THE COURT IS FABRICATING A RULE OF LAW.  THE COURT ITSELF SEEMS TO
DRAW THE INFERENCE THAT THE DEFENDANT, BECAUSE OF HIS POSITION AND
CONNECTION WITH THE CONSPIRACY, MUST INEVITABLY HAVE BEEN ASSOCIATED AS
AN AIDER AND ABETTOR IN THE COMMISSION OF THE SUBSTANTIVE CRIMES.  FOR
AN APPELLATE COURT TO DRAW SUCH AN INFERENCE IS TO MAKE IT A RULE OF
LAW THAT THE SAME INFERENCE MUST BE DRAWN IN EVERY SIMILAR CASE.  IT IS
TO CREATE, IN OTHER WORDS, A PRESUMPTION THAT WHENEVER A HAS BEEN FOUND
GUILTY OF CONSPIRING WITH B AND C TO BRING X, Y AND Z TO PASS, AND A
AND B COMMIT THE SUBSTANTIVE OFFENSES L, M AND N, DURING THE LIFE OF
THIS CONSPIRACY, C IS AN AIDER AND ABETTOR WITH A AND B IN THE
COMMISSION OF L, M AND N. 

CLARITY AS TO THE GROUND ON WHICH A CRIMINAL CONVICTION IS SUSTAINED
IS INDISPENSABLE TO ANGLO-AMERICAN NOTIONS OF CRIMINAL JUSTICE; IT IS
NO LESS INDISPENSABLE FOR THE GUIDANCE OF DISTRICT COURTS IN FUTURE
PROSECUTIONS FOR CONSPIRACY.  SUCH PROSECUTIONS ARE APPROPRIATE TO
REACH A COMBINATION UNITED TO ACCOMPLISH DEFINED CRIMINAL PURPOSES; THE
CONCEPT OF CONSPIRACY IS NOT AN INVITATION TO CIRCUMVENT THE SAFEGUARDS
IN THE PROSECUTION OF CRIME WHICH ARE THE SPECIAL BOAST OF OUR
DEMOCRATIC SOCIETY BY MAKING IT A DEVICE TO ESTABLISH GUILT, NOT ON THE
BASIS OF PERSONAL RESPONSIBILITY, BUT BY ASSOCIATION, AND WE SHOULD BE
AT PAINS TO FORESTALL THE IMPLICATION THAT WE HAVE SO EXTENDED IT.  MY
BROTHER JACKSON HAS IMPRESSIVELY SHOWN THE GRAVE DANGERS OF ABUSE TO
WHICH CONSPIRACY CHARGES SO READILY LEND THEMSELVES.  KRULEWITCH V.
UNITED STATES, 336 U.S. 440, 445.  THEY ARE DANGERS WHICH THE
CONFERENCE OF SENIOR CIRCUIT JUDGES HAS STRIKINGLY POINTED OUT, AND
LONG BEFORE THAT JUDGES WHO HAD OBSERVED THESE ABUSES IN PRACTICE HAD
WARNED AGAINST THEM. 

"THERE SEEMS TO BE AN INCREASING TENDENCY IN RECENT YEARS FOR PUBLIC
PROSECUTORS TO INDICT FOR CONSPIRACIES WHEN CRIMES HAVE BEEN
COMMITTED.  A CONSPIRACY TO COMMIT A CRIME MAY BE A SUFFICIENTLY
SERIOUS OFFENSE TO BE PROPERLY PUNISHED; BUT, WHEN A CRIME HAS BEEN
ACTUALLY COMMITTED BY TWO OR MORE PERSONS, THERE IS USUALLY NO PROPER
REASON WHY THEY SHOULD BE INDICTED FOR THE AGREEMENT TO COMMIT THE
CRIME, INSTEAD OF FOR THE CRIME ITSELF.  ...  PROSECUTORS SEEM TO THINK
THAT BY THIS PRACTICE ALL STATUTES OF LIMITATIONS AND MANY OF THE RULES
OF EVIDENCE ESTABLISHED FOR THE PROTECTION OF PERSONS CHARGED WITH
CRIME CAN BE DISREGARDED.  BUT THERE IS NO MYSTERIOUS POTENCY IN THE
WORD 'CONSPIRACY.'  IF A CONSPIRACY TO COMMIT A CRIME HAS BEEN CARRIED
OUT, AND THE CRIME COMMITTED, THE CRIME, IN MY OPINION, CANNOT BE MADE
SOMETHING ELSE BY BEING CALLED A CONSPIRACY,"  UNITED STATES V. KISSEL,
173 F. 823, 828(C.C.S.D.N.Y.). 

NEITHER CAN A CONSPIRACY TO COMMIT ONE CRIME BE MADE TO ESTABLISH
ANOTHER CRIME BY RESORT TO THE DOCTRINE OF AIDING AND ABETTING. 

AS TO OTHER ISSUES CANVASSED BY THE COURT OF APPEALS, AMONG THEM THE
ADMISSION OF PROOF OF SIMILAR CRIMES TO SHOW INTENT, I DO NOT MEAN TO
IMPLY AGREEMENT WITH ITS VIEWS.  FOR THE REASONS I HAVE STATED, I
BELIEVE THAT THE JUDGMENT SHOULD BE REVERSED AND THE CASE REMANDED TO
THE COURT OF APPEALS. 

FN1  THE FOLLOWING EXCERPTS FROM THE OPINION OF THE COURT OF APPEALS
MAKE CLEAR HOW FIRMLY IT PLACED ITS DECISION UPON THE PINKERTON
DOCTRINE RATHER THAN UPON A DETERMINATION OF THE SUFFICIENCY OF THE
EVIDENCE. 

"  ... HERE THE CASE WAS SUBMITTED TO THE JURY WITH AN INSTRUCTION
UNDER 18 U.S.C.A. SEC. 550 THAT 'ONE WHO AIDS, ABETS, COUNSELS,
COMMANDS, INDUCES, OR PROCURES THE COMMISSION OF AN ACT IS AS
RESPONSIBLE FOR THAT ACT AS IF HE COMMITTED IT DIRECTLY.'  IT IS THE
GIST OF APPELLANT'S CONTENTION IN THIS RESPECT THAT UNLESS THERE IS
SUBSTANTIAL EVIDENCE TO SUPPORT THE VERDICT UNDER THE INSTRUCTIONS
WHICH WERE GIVEN, THE VERDICT CANNOT BE SUSTAINED ON THE GROUND THAT
THE EVIDENCE WAS SUFFICIENT UNDER A THEORY AS TO WHICH THE JURY WAS
UNINSTRUCTED. 

"NO AUTHORITY IS CITED IN SUPPORT OF THE POINT SO RAISED AND OUR
SEARCH FAILS TO REVEAL ANY FEDERAL CASE IN WHICH IT HAS BEEN EXPRESSLY
CONSIDERED.  ... 

"WHATEVER THE ANSWER TO THIS PROBLEM MAY BE, WE ARE OF THE OPINION
THAT THE VERDICT OF THE JURY ON THE SUBSTANTIVE COUNTS DID NOT
DISREGARD OR GO BEYOND THE SCOPE OF THE INSTRUCTIONS GIVEN. 
APPELLANTS' CONTENTION TO THE CONTRARY IS ANSWERED BY THE PINKERTON
CASE ITSELF. 

"SO LONG AS THE CONSPIRACY EXISTED, THE MEMBERS ACTED FOR EACH OTHER
IN CARRYING IT FORWARD.  THE CRIMINAL INTENT TO COMMIT SUBSTANTIVE
OFFENSES IN FURTHERANCE OF THE UNLAWFUL PROJECT WAS ESTABLISHED BY THE
FORMATION OF THE CONSPIRACY."  168 F.2D AT 854. 

MR. JUSTICE JACKSON AND MR. JUSTICE RUTLEDGE JOIN IN THIS OPINION. 

MR. JUSTICE MURPHY, DISSENTING. 

THE PETITIONERS WERE INDICTED FOR SEVEN OFFENSES.  THE FIRST WAS A
CONSPIRACY TO DEFRAUD THE GOVERNMENT BETWEEN 1938 AND 1945.  THE
REMAINING COUNTS CHARGED SIX SPECIFIC INSTANCES OF THAT FRAUD.  SERIOUS
ATTACK HAS BEEN MADE IN THIS COURT ON THE PETITIONERS' CONVICTIONS
UNDER THE SIX SUBSTANTIVE COUNTS.  THE COURT UPHOLDS THOSE
CONVICTIONS.  IT FINDS SUFFICIENT EVIDENCE TO ESTABLISH THE FACT THAT
PETITIONERS AIDED OR ABETTED THE PERPETRATION OF THE SUBSTANTIVE
OFFENSES; AND SINCE 18 U.S.C. SEC. 2 MAKES AN AIDER OR ABETTOR A
PRINCIPAL, THE PETITIONERS ARE GUILTY OF THE SUBSTANTIVE OFFENSES. 

THE TRIAL LASTED NEARLY THREE MONTHS.  THE JUDGE'S CHARGE TO THE JURY
BEGAN WITH AN ANALYSIS OF THE CONSPIRACY COUNT, AND OFFERED SEVERAL
DEFINITIONS OF THE TERM "CONSPIRACY."  SOME WERE TRADITIONAL.  BUT ONE
WAS THIS:  "IF A PERSON, UNDERSTANDING THE UNLAWFUL CHARACTER OF A
TRANSACTION, ENCOURAGES, ADVISES, OR IN ANY MANNER, WITH A PURPOSE TO
FORWARD THE ENTERPRISE OR SCHEME, ASSISTS IN THE PROSECUTION, HE
BECOMES A CONSPIRATOR."  LATER IN THE ANALYSIS OF THE CONSPIRACY COUNT,
A DEFINITION OF "ABETTING" WAS GIVEN.  IT WAS IMMEDIATELY FOLLOWED BY
THIS STATEMENT:  "IN THIS CONNECTION" THE ACTS AND DECLARATIONS OF A
CONSPIRATOR ARE ADMISSIBLE AGAINST OTHER CONSPIRATORS.    THE JUDGE
THEN PASSED TO THE SUBSTANTIVE OFFENSES.  AND HE CHARGED:  "ONE WHO
AIDS, ABETS, COUNSELS, COMMANDS, INDUCES, OR PROCURES THE COMMISSION OF
AN ACT IS AS RESPONSIBLE FOR THAT ACT AS IF HE COMMITTED IT DIRECTLY." 
THE JURORS WERE NOT TOLD WHAT THE TERMS "COUNSEL" OR "INDUCE"
SIGNIFIED.  ABETTING, IN THE CONTEXT OF THE SUBSTANTIVE CRIMES, WAS NOT
DEFINED.  MOST IMPORTANT, THE JURORS WERE NOT TOLD HOW TO USE A BELIEF
THAT CONSPIRACY EXISTED AS EVIDENCE IN ITSELF OF THE SUBSTANTIVE
CRIMES.  THERE WAS NO ATTEMPT TO SKETCH DIFFERENCES BETWEEN ABETTING,
COUNSELING, INDUCING, AND CONSPIRING. 

YET THE CONVICTIONS ARE UPHELD IN THIS COURT ON THE THEORY THAT THE
JURY FOUND AIDING OR ABETTING.  IN THIS COURT, THEN, AIDING OR ABETTING
FRAUD BECOMES THE SUBSTANTIVE OFFENSE.  FINDING SUFFICIENT EVIDENCE TO
SUPPORT THE VERDICT ON THIS THEORY OF THE SUBSTANTIVE COUNTS, THE COURT
HOLDS THAT FAILURE TO INSTRUCT OF THE RELATIONSHIP BETWEEN CONSPIRACY
AND AIDING OR ABETTING IS UNIMPORTANT. 

I CANNOT AGREE.  CONVICTION OF THE GUILTLESS BYSTANDER IS, OF COURSE,
THE GREAT DANGER WHEN CONSPIRACY COUNTS AND SUBSTANTIVE COUNTS ARE
TRIED TOGETHER.  A LETTER IS WRITTEN, A CALL IS MADE, AND THE
FOUNDATION IS LAID.  THE JURY IS SUBJECT TO THE TEMPTATION OF
GENERALIZING; ITS CONFUSION MAKES THAT TEMPTATION HARDER TO RESIST. 
PINKERTON V. UNITED STATES, 328 U.S. 640, AS INTERPRETED TODAY,
ATTEMPTED TO PLACE LIMITATIONS ON THIS PROCESS.  A CONSPIRACY'S MERE
JOINER IS NOT GUILTY OF THE SUBSTANTIVE OFFENSE UNLESS THE SUBSTANCE
WAS PART OF THE CONSPIRACY AND IN FURTHERANCE OF IT.  THE TRIAL JUDGE
MUST SO WARN THE JURY. 

THE POLICY WHICH REQUIRED CAUTIONS IN THE PINKERTON CASE REQUIRES THE
SAME CAUTIONS HERE.  THIS VOLUMINOUS RECORD, AND THE JUDGE'S
INSTRUCTIONS IN PARTICULAR, ARE REPLETE WITH POSSIBILITIES OF CONFUSION
FOR THE JUROR.  THE COURT STATES THAT THE CRIME OF AIDING OR ABETTING
THE COMMISSION OF A SUBSTANTIVE OFFENSE IS "WELL ENGRAINED IN THE
LAW."  AND SO IT IS.  18 U.S.C. SEC. 2; UNITED STATES V. PEONI, 100
F.2D 401. 

ATTORNEYS MAY HAVE AN ACCURATE IDEA WHAT ACTION CONSTITUTES AIDING,
ABETTING, COUNSELING, INDUCING, OR PROCURING.  COUNSELING, IN THIS
CONTEXT, MEANS ADVISING, OR RECOMMENDING.  ALTHOUGH "CONSPIRACY" MEANS
A VARIETY OF THINGS, SEE KRULEWITCH V. UNITED STATES, 336 U.S. 440,
CONCURRING OPINION, WE REALIZE THAT THE CONCEPT OF AT LEAST IMPLICIT
AGREEMENT MAY MARK IT SOMEWHAT APART FROM COUNSELING, FOR EXAMPLE, OR
INDUCING.  SEE THOMAS V. UNITED STATES, 57 F.2D 1039, 1042; UNITED
STATES V. MACK, 112 F.2D 290, 292. 

PRECISE USE OF WORDS IS PART OF THE LAWYER'S CRAFT.  BUT WE EXPECT
TOO MUCH OF A JUROR WHEN WE ASK HIM TO MAKE INTELLIGENT DISTINCTIONS
AFTER A THREE-MONTH TRIAL AND AFTER INSTRUCTIONS SUCH AS THOSE I HAVE
QUOTED ABOVE - IN AN AREA OF LAW WHICH IS DIFFICULT ENOUGH FOR THE
SEASONED ATTORNEY.  SEE UNITED STATES V. SALL, 116 F.2D 745, OVERRULED
IN PINKERTON V. UNITED STATES, SUPRA. 

IN THIS CASE AN INTELLIGENT VERDICT ON THE SUBSTANTIVE COUNTS SEEMS
SCARCELY POSSIBLE.  THE JURY MAY HAVE USED THE PROOF OF CONSPIRACY AS
PROOF IN ITSELF OF THE OTHER OFFENSES - THE SUBSTANTIVE CRIMES OF
AIDING OR ABETTING FRAUD ON THE GOVERNMENT.  AS THE COURT INTERPRETS
PINKERTON, IT IS BEYOND QUESTION THAT SUCH USE WOULD BE IMPROPER,
WITHOUT A WARNING THAT THE SUBSTANTIVE CRIME MUST BE COMMITTED IN
FURTHERANCE OF THE CONSPIRACY AND AS A PART OF IT.  WE DO NOT KNOW, WE
CANNOT KNOW, WHAT EVIDENCE WAS DETERMINATIVE OF GUILT IN THE JURY
ROOM. 

AN APPELLATE COURT HAS NO BUSINESS DECIDING FOR ITSELF THAT THERE IS
SUFFICIENT EVIDENCE TO CONVICT, WHEN THE TRIERS OF FACT MAY HAVE
CONSIDERED IMPROPER EVIDENCE THEIR BASIS FOR THE FINDING OF GUILT.  THE
PRESENCE OF PROPER EVIDENCE HAS NO RELEVANCE WHATEVER.  AT THE VERY
LEAST, THE JUDGE SHOULD INSTRUCT THE JURY THAT THERE IS A DIFFERENCE
BETWEEN THE REAL PARTICIPATION CONTEMPLATED IN AIDING OR ABETTING, AND
THE MORE REMOTE PLOTTING EMBRACED BY SIMPLE "CONSPIRACY," UNITED STATES
V. PEONI, SUPRA, AT 402, ALTHOUGH ONE MAY BE BOTH CONSPIRATOR AND
ABETTOR. 

GUILT BY ASSOCIATION IS A DANGER IN ANY CONSPIRACY PROSECUTION.  ITS
CONSEQUENCES ARE MORE SERIOUS WHEN A SUBSTANTIVE CRIME IS ALSO
CHARGED.  BUT WHEN THE MAGIC WORDS "COUNSELING" OR "INDUCING" ARE
INJECTED TO "DEFINE" THE SUBSTANTIVE CRIMES, THE DANGER AND ITS
CONSEQUENCES REACH A NEW HIGH.  IT IS HARD TO ASSESS THE EFFECT OF A
TRIAL JUDGE'S CHARGE UPON A JURY'S UNSOPHISTICATED BELIEF IN
DEFENDANTS' BAD CONDUCT.  BUT IT IS OUR DUTY TO DO WHAT WE CAN BY WAY
OF WARNING.  CLARITY IS INDISPENSABLE. 

THE GUILT OR INNOCENCE OF MONCHARSH AND NYE & NISSEN IS RELATIVELY
UNIMPORTANT.  THE EFFECT OF TODAY'S DECISION ON FUTURE TRIALS, HOWEVER,
WILL BE SERIOUS INDEED.  THE COURT GIVES FURTHER COMFORT TO THE DRAGNET
THEORY OF CRIMINAL JUSTICE.  THE JUDGMENT SHOULD BE REVERSED. 
..END :






















DEFENSE CORP. V. LAWRENCE CO., 336 U.S. 631 


NO. 298.  ARGUED FEBRUARY 3, 1949.  - DECIDED APRIL 18, 1949.  - 168
F.2D 199, VACATED AND REMANDED. 


THE JOINT RESOLUTION OF JUNE 30, 1945, 59 STAT. 310, DISSOLVED THE
DEFENSE SUPPLIES CORPORATION (D.S.C.)  AS OF JULY 1, 1945, TRANSFERRED
ALL OF ITS FUNCTIONS, ASSETS AND LIABILITIES TO THE RECONSTRUCTION
FINANCE CORPORATION (R.F.C.), AND PROVIDED THAT NO SUIT BY OR AGAINST
D.S.C. SHOULD ABATE BY REASON THEREOF BUT THAT R.F.C. MIGHT BE
SUBSTITUTED AS A PARTY AT ANY TIME WITHIN TWELVE MONTHS AFTER THE DATE
OF ENACTMENT.  IN A SUIT BROUGHT BY D.S.C. AGAINST RESPONDENTS BEFORE
ITS DISSOLUTION, A FEDERAL DISTRICT COURT ENTERED JUDGMENT IN ITS FAVOR
LESS THAN TWELVE MONTHS AFTER ENACTMENT OF THE RESOLUTION.  ON AN
APPEAL NOTED BEFORE, BUT ARGUED AND DECIDED AFTER, EXPIRATION OF THE
TWELVE MONTHS, THE COURT OF APPEALS AFFIRMED, ALTHOUGH THE R.F.C. HAD
NOT BEEN SUBSTITUTED AS PLAINTIFF.  ON RECONSIDERATION, THE COURT OF
APPEALS DENIED A MOTION TO SUBSTITUTE R.F.C., VACATED ITS JUDGMENT OF
AFFIRMANCE, AND REMANDED THE CAUSE TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS THE ACTION.  HELD:  JUDGMENT OF THE COURT OF
APPEALS VACATED AND CAUSE REMANDED TO THAT COURT WITH DIRECTIONS TO
DISMISS THE APPEAL.  PP. 632-640. 

1.  THE MOTION TO SUBSTITUTE R.F.C. AFTER EXPIRATION OF THE TWELVE
MONTHS WAS OUT OF TIME.  P. 636. 

2.  THE DISTRICT COURT'S JUDGMENT, HAVING BEEN ENTERED WITHIN TWELVE
MONTHS AFTER PASSAGE OF THE RESOLUTION, WAS VALID WHEN ENTERED.  PP.
636-637. 

3.  THE COURT OF APPEALS WAS WITHOUT JURISDICTION TO REVIEW THE
MERITS OF THE CAUSE, SINCE RESPONDENTS CALLED FOR REVIEW AFTER THE
PERIOD ALLOWED FOR SUBSTITUTION HAD EXPIRED.  P. 638. 

4.  THE JUDGMENT OF THE DISTRICT COURT WAS NOT ROBBED OF ITS VITALITY
BY THE ABATEMENT OF THE APPELLATE PROCEEDINGS.  P. 638. 

5.  THAT THE COURT OF APPEALS HAD NO JURISDICTION TO REVIEW THE
MERITS DOES NOT AFFECT THE POWER OF THIS COURT TO SET ASIDE THE
ERRONEOUS ACTION OF THE COURT OF APPEALS.  P. 639. 

6.  AFTER DISMISSAL OF THE APPEAL, R.F.C., AS THE REAL PARTY IN
INTEREST, MAY BRING ACTION ON THE JUDGMENT OF THE DISTRICT COURT.  P.
639. 

DEFENSE SUPPLIES CORP. ET AL. V. LAWRENCE WAREHOUSE CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

WITHIN A YEAR AFTER PASSAGE OF THE JOINT RESOLUTION OF JUNE 30, 1945,
59 STAT. 310, A FEDERAL DISTRICT COURT ENTERED A JUDGMENT FOR DEFENSE
SUPPLIES CORPORATION IN A SUIT FOR DAMAGES INSTITUTED BEFORE PASSAGE OF
THE JOINT RESOLUTION.  67 F.SUPP.  16.  ON AN APPEAL ARGUED AND DECIDED
MORE THAN A YEAR AFTER PASSAGE OF THE JOINT RESOLUTION, THE COURT OF
APPEALS AFFIRMED, ALTHOUGH R.F.C. HAD NOT BEEN SUBSTITUTED AS
PLAINTIFF.  164 F.2D 773.  ON RECONSIDERATION, THE COURT OF APPEALS
DENIED A MOTION TO SUBSTITUTE R.F.C., VACATED THE JUDGMENT ENTERED IN
FAVOR OF DEFENSE SUPPLIES CORPORATION, AND ORDERED THE ACTION
DISMISSED.  168 F.2D 199.  THIS COURT GRANTED CERTIORARI.  335 U.S.
857.  JUDGMENT OF THE COURT OF APPEALS VACATED WITH DIRECTIONS TO
DISMISS THE APPEAL.  P. 640. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO ASSESS THE EFFECT OF THE DEFENSE SUPPLIES
CORPORATION'S DISSOLUTION ON AN ACTION TO WHICH IT WAS A PARTY AT THE
TIME OF DISSOLUTION.  PETITIONERS ARE THE DEFENSE SUPPLIES CORPORATION
AND THE RECONSTRUCTION FINANCE CORPORATION.  BOTH ARE ARMS OF THE
UNITED STATES GOVERNMENT.  FN1 

DEFENSE SUPPLIES CORPORATION BROUGHT ACTION AGAINST RESPONDENTS IN
THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, IN
FEBRUARY, 1944, ALLEGING RESPONDENTS' NEGLIGENT DESTRUCTION OF
AUTOMOBILE TIRES OWNED BY DEFENSE SUPPLIES AND STORED BY RESPONDENTS. 
RESPONDENTS DENIED THEIR NEGLIGENCE.  THE DISTRICT JUDGE TRIED THE
CAUSE WITHOUT A JURY IN FEBRUARY, 1945.  HE ORDERED THE CASE SUBMITTED
ON JULY 16, 1945, AND IN JANUARY, 1946, FOUND NEGLIGENCE AND ORDERED
JUDGMENT FOR DEFENSE SUPPLIES CORPORATION IN THE AMOUNT OF $41,975.15
AND COSTS, 67 F.SUPP.  16; ENGROSSED FINDINGS AND FINAL JUDGMENT WERE
ENTERED IN APRIL, 1946.  RESPONDENTS FILED NOTICE OF APPEAL ON JUNE 14,
1946; THE APPEAL WAS ARGUED IN THE COURT OF APPEALS FOR THE NINTH
CIRCUIT IN OCTOBER, 1947, AND IN DECEMBER THE COURT AFFIRMED THE
JUDGMENT BELOW.  164 F.2D 773.  IN JANUARY, 1948, REHEARING WAS
DENIED. 

THEN RESPONDENTS DISCOVERED THAT DEFENSE SUPPLIES CORPORATION "DID
NOT EXIST."  CONGRESS HAD DISSOLVED THE THERETOFORE SUCCESSFUL LITIGANT
AS OF JULY 1, 1945, BY THE JOINT RESOLUTION OF JUNE 30, 1945, 59 STAT.
310, AND TRANSFERRED ALL ITS ASSETS TO THE RECONSTRUCTION FINANCE
CORPORATION - AFTER TRIAL, BUT BEFORE JUDGMENT, IN THE DISTRICT COURT. 
THE COURT OF APPEALS, ONE JUDGE DISSENTING, GRANTED RESPONDENTS' SECOND
PETITION FOR RECONSIDERATION; DENIED A MOTION TO SUBSTITUTE THE
RECONSTRUCTION FINANCE CORPORATION AS OUT OF TIME; AND VACATED THE
JUDGMENT ENTERED IN FAVOR OF THE DEFENSE SUPPLIES CORPORATION, ORDERING
THE ACTION DISMISSED.  168 F.2D 199.  WE BROUGHT THE CASE HERE ON
CERTIORARI, 335 U.S. 857, BECAUSE OF ALLEGED CONFLICT WITH GAYNOR V.
METALS RESERVE CO., 166 F.2D 1011, IN THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT. 

OUR DECISION RESTS UPON INTERPRETATION OF THE STATUTE DISSOLVING
DEFENSE SUPPLIES CORPORATION.  FOR ALTHOUGH OUR CONCEPTION OF A
CORPORATION CENTERS UPON LEGISLATIVE GRANT RATHER THAN SPONTANEOUS
EXISTENCE, SEE PETROGRADSKY M.K. BANK V. NATIONAL CITY BANK, 253 N.Y.
23, 30-31, 170 N.E. 479, 481-482, THE COURTS HAVE GENERALLY TREATED A
CORPORATION'S DEMISE MUCH AS THEY HAVE THAT OF A NATURAL LITIGANT. 
MUMMA V. POTOMAC CO., 8 PET. 281, 287; NATIONAL BANK V. COLBY, 21
WALL.  609; PENDLETON V. RUSSELL, 144 U.S. 640; OKLAHOMA NATURAL GAS
CO. V. OKLAHOMA, 273 U.S. 257.  THE PARALLEL HAS NOT BEEN THE SUBJECT
OF UNIVERSAL ADMIRATION, SEE MARCUS, SUABILITY OF DISSOLVED
CORPORATIONS, 58 HARV. L. REV. 675; AND IS BY NO MEANS EXACT, SHAYNE V.
EVENING POST PUBLISHING CO., 168 N.Y. 70, 78, 61 N.E. 115, 117; BRUUN
V. KATZ DRUG CO., 351 MO. 731, 173 S.W.2D 906.  BUT AT LEAST ONE FACET
OF THE ANALOGY HAS SEEMED TOO CLEAR TO PERMIT CHANGE WITHOUT AN
"INDEPENDENT LIFT OF POWER"  FN2  FROM THE CONGRESS.  WHETHER PHRASED
IN TERMS OF ADHERENCE TO PRECEDENT, CONGRESSIONAL ACCEPTANCE OF THAT
PRECEDENT,  FN3  OR THE "IMPOSSIBILITY" OF PROCEEDING "WITHOUT A
DEFENDANT,"  FN4  MOST COURTS HAVE HELD THAT THE DISSOLUTION OF A
CORPORATION WORKS AN ABATEMENT OF PENDING ACTIONS.  FN5 

BUT A TIME-HONORED FEATURE OF THE CORPORATE DEVICE IS THAT A
CORPORATE ENTITY MAY BE UTTERLY DEAD FOR MOST PURPOSES, YET HAVE ENOUGH
LIFE REMAINING TO LITIGATE ITS ACTIONS.  ALL THAT IS NECESSARY IS A
STATUTE SO PROVIDING.  OKLAHOMA GAS CO. V. OKLAHOMA, SUPRA; PEASE V.
RATHBUN-JONES ENGINEERING CO., 243 U.S. 273, 277.  UNLESS THE STATUTORY
TERMS ARE OBSERVED, HOWEVER, THE CONSEQUENCES OF TOTAL DISSOLUTION
ATTACH, AND, IF WE FOLLOW OKLAHOMA NATURAL GAS CO. V. OKLAHOMA, SUPRA,
AND CASES CITED, THE ACTIONS ABATE. 

THE CONTROLLING STATUTE IS SET OUT IN FULL IN THE MARGIN.  FN6  THE
FIRST SECTION DISSOLVES SEVERAL GOVERNMENT CORPORATIONS, INCLUDING
DEFENSE SUPPLIES, AND TRANSFERS ALL THEIR ASSETS AND AUTHORITY TO THE
RECONSTRUCTION FINANCE CORPORATION.  SECTION 2 PROVIDES THAT "NO SUIT,
ACTION, OR OTHER PROCEEDING LAWFULLY COMMENCED BY OR AGAINST ANY OF
SUCH CORPORATIONS SHALL ABATE  ...  , BUT THE COURT, ON MOTION OR
SUPPLEMENTAL PETITION FILED AT ANY TIME WITHIN TWELVE MONTHS AFTER"
JULY 1, 1945, SHOWING NECESSITY FOR SURVIVAL, "MAY ALLOW THE SAME TO BE
MAINTAINED BY OR AGAINST" RECONSTRUCTION FINANCE.  THE QUESTION
PRESENTED NOW IS WHETHER THE FAILURE TO SUBSTITUTE BY JULY 1, 1946,
DEPRIVES PETITIONER DEFENSE SUPPLIES CORPORATION OF ITS $42,000
JUDGMENT. 

FIRST.  WE AGREE WITH THE COURT OF APPEALS THAT THE MOTION TO
SUBSTITUTE RECONSTRUCTION FINANCE WAS OUT OF TIME.  THE STATUTE
PROVIDES FOR SUBSTITUTION DURING THE YEAR AFTER JULY 1, 1945, AND
RECONSTRUCTION FINANCE'S MOTION WAS PRESENTED TO THE COURT BELOW ON
MARCH 2, 1948.  WE DO NOT THINK CONGRESS INTENDED A GESTURE OF FUTILITY
WHEN IT STATED A TWELVE-MONTH PERIOD FOR SUBSTITUTION. 

SECOND.  BUT THE COURT READ THE SUBSTITUTION PROVISION AS
CONDITIONING THE ACTION'S CONTINUANCE: UNLESS RECONSTRUCTION FINANCE
BECAME THE LITIGANT, THE ACTION ABATED.  IT THEREFORE HELD THAT THE
DISTRICT COURT WAS WITHOUT JURISDICTION TO ENTER JUDGMENT FOR DEFENSE
SUPPLIES AFTER JULY 1, 1945, AND VACATED THE JUDGMENT SO ENTERED. 

WE DISAGREE.  THE STATUTE STATES CATEGORICALLY THAT "NO ACTION SHALL
ABATE."  FOLLOWING THAT COMMAND, PROVISION IS MADE FOR SUBSTITUTING
RECONSTRUCTION FINANCE.  IF RECONSTRUCTION FINANCE IS NOT SUBSTITUTED
WITHIN ONE YEAR, THE ACTION BY OR AGAINST DEFENSE SUPPLIES IS, OF
COURSE, AT AN END AND THE PARTIES ARE LEFT IN STATUS QUO; BUT THERE IS
NOTHING TO SHOW THAT DURING THE YEAR IN WHICH RECONSTRUCTION FINANCE
MAY BE SUBSTITUTED, ACTION BY OR AGAINST DEFENSE SUPPLIES CANNOT
CONTINUE IN DEFENSE SUPPLIES' NAME.  IF CONGRESS STATES THAT NO ACTION
SHALL ABATE, WE FAIL TO SEE WHY WE SHOULD MAKE ADDITIONAL LANGUAGE A
PROVISO.  AND SINCE THE DISTRICT COURT ENTERED ITS JUDGMENT DURING THE
YEAR ALLOWED FOR SUBSTITUTION OF THE RECONSTRUCTION FINANCE
CORPORATION, WE CONCLUDE THAT IT WAS VALID WHEN ENTERED. 

THE COURT OF APPEALS THOUGHT THAT LECRONE V. MCADOO, 253 U.S. 217;
PAYNE V. INDUSTRIAL BOARD, 258 U.S. 613; AND UNITED STATES EX REL.
CLAUSSEN V. CURRAN, 276 U.S. 590, DICTATED A CONTRARY RESULT.  THEY DO
NOT.  THEY RATHER DEMONSTRATE THE VALIDITY OF OUR INTERPRETATION.  THE
STATUTORY LANGUAGE CONSTRUED IN THE LECRONE AND PAYNE CASES WAS
SUBSTANTIALLY THE SAME AS THAT UNDER SCRUTINY NOW,  FN7  AND THE COURT
HELD ONLY THAT THE ACTIONS WERE "AT AN END" IN THIS COURT AFTER THE
YEAR GIVEN FOR SUBSTITUTION HAD EXPIRED - THAT AFTER THAT YEAR, WE HAD
NO JURISDICTION TO REVIEW THE MERITS.  THE COURT DID NOT SUGGEST THAT
THE COURTS BELOW HAD ENTERED THEIR JUDGMENTS IMPROPERLY.  IT SIMPLY
DISMISSED THE WRITS OF ERROR.  FN8  BUT IN 1925 THE STATUTE WAS
AMENDED.  THE COMMAND, "NO ACTION SHALL ABATE," WAS OMITTED; THE NEW
PROVISION MADE IT UNMISTAKABLY CLEAR THAT THE VALIDITY OF THE JUDGMENT
WAS CONDITIONAL UPON SUBSTITUTION.  FN9  AND WHEN CALLED UPON TO
INTERPRET THE NEW STATUTE, WE WENT FURTHER THAN WE HAD IN PAYNE AND
LECRONE.  WE VACATED THE JUDGMENTS BELOW, AND REMANDED TO THE DISTRICT
COURT WITH A DIRECTION TO DISMISS THE CAUSE AS ABATED.  UNITED STATES
EX REL. CLAUSSEN V. CURRAN, SUPRA. 

THREE CONCLUSIONS FOLLOW FROM OUR INTERPRETATION OF THE STATUTE, PLUS
THE PAYNE AND LECRONE INTERPRETATIONS OF A STATUTE WITH NEARLY
IDENTICAL LANGUAGE.  THE FIRST IS THAT THE COURT OF APPEALS WAS WITHOUT
JURISDICTION TO REVIEW THE MERITS OF THE CAUSE, SINCE RESPONDENTS
CALLED FOR REVIEW AFTER THE PERIOD GIVEN FOR SUBSTITUTION HAD EXPIRED. 
IN ADDITION, THE DISTRICT COURT JUDGMENT WAS VALID WHEN ENTERED, SINCE
IT WAS ENTERED DURING THE ONE-YEAR PERIOD.  AND FINALLY THE JUDGMENT
WAS NOT ROBBED OF ITS VITALITY BY THE ABATEMENT OF APPELLATE
PROCEEDINGS.  THE LATTER CONCLUSION ADHERES TO THE FAMILIAR RULE THAT A
JUDGMENT AGAINST OR IN FAVOR OF A CORPORATION IS NOT ERASED BY
SUBSEQUENT DISSOLUTION.  PENDLETON V. RUSSELL, SUPRA, AT 646.  SEE 47
A.L.R. 1385, N. 1.  THERE IS NO GOOD SENSE IN DEPARTING FROM THAT
PRINCIPLE BECAUSE A NOTICE OF APPEAL WAS FILED IN THIS CASE BEFORE THE
CORPORATION ENDED FOR ALL PURPOSES.  FOR EVEN IF THE JUDGMENT HAD BEEN
STAYED - A FACT THAT DOES NOT APPEAR IN THE RECORD BEFORE US - THE STAY
WOULD HAVE BEEN CONDITIONAL UPON PERFECTING THE APPEAL.  AND WE DO NOT
THINK RESPONDENTS ARE IN A POSITION TO OBJECT THAT THEY COULD NOT
PERFECT AN APPEAL BECAUSE THE COURT OF APPEALS HAD NO JURISDICTION,
WHEN RESPONDENTS COULD HAVE REMEDIED THE DEFECT BY A MOTION TO
SUBSTITUTE THE RECONSTRUCTION FINANCE CORPORATION. 

WE HAVE HELD, ABOVE, THAT THE COURT OF APPEALS HAD NO JURISDICTION TO
REVIEW THE MERITS.  LECRONE AND PAYNE SHOW THAT WE LIKEWISE HAVE NO
JURISDICTION SO FAR AS THE MERITS ARE CONCERNED.  BUT THAT, OF COURSE,
DOES NOT AFFECT OUR POWER TO SET ASIDE THE ERRONEOUS ACTION OF THE
COURT OF APPEALS.  OUR SUPERVISORY APPELLATE JURISDICTION WOULD BE OF
LITTLE VALUE IF THE INJUSTICE CAUSED BY THE DECISION BELOW WERE TO
STAND UNCORRECTED.  WE ARE NOT SO CONSTRICTED.  THE CLAUSSEN CASE,
SUPRA, INDICATES THAT.  AND WALLING V. REUTER, INC., 321 U.S. 671, 676,
AND CASES CITED, IS CONCLUSIVE AGAINST RESPONDENTS' ARGUMENT. 

WE CONCLUDE THAT THE COURT OF APPEALS ERRED IN DEPRIVING PETITIONER
DEFENSE SUPPLIES OF ITS VALID JUDGMENT IN THE DISTRICT COURT, AND WE
VACATE THE JUDGMENT OF THE COURT OF APPEALS AND REMAND TO THAT COURT
WITH DIRECTIONS TO DISMISS THE APPEAL FROM THE JUDGMENT OF THE DISTRICT
COURT.  RECONSTRUCTION FINANCE, AS THE REAL PARTY IN INTEREST, RULE
17(A), FEDERAL RULES OF CIVIL PROCEDURE; SEE HEISEN V. SMITH, 138 CAL.
216, 219, 71 P. 180, 181, MAY THEN BRING ACTION ON THE JUDGMENT.  RULE
81(B); MITCHELL V. ST. MAXENT'S LESSEE, 4 WALL.  237, 242-243; FREEMAN,
JUDGMENTS (5TH ED.), SEC. 1091, P. 2268; TOWN OF FLETCHER V. HICKMAN,
165 F. 403; THOMAS V. THOMAS, 14 CAL.2D 355, 358, 94 P.2D 810, 812. 
SCIRE FACIAS REVIVAL, WHILE OFTEN CONSIDERED MERELY A CONTINUATION OF
THE ORIGINAL SUIT, UNITED STATES V. PAYNE, 147 U.S. 687, 690, IS A
SEPARATE ACTION FOR THIS PURPOSE, AND IN THE SETTING OF THIS STATUTE. 
SEE BROWNE V. CHAVEZ, 181 U.S. 68.  FN10 VACATED AND REMANDED. 

FN1  RECONSTRUCTION FINANCE CORPORATION, 15 U.S.C. SEC. 601 ET SEQ.;
DEFENSE SUPPLIES CORPORATION, SEE FOOTNOTE 6, INFRA. 

FN2  L. HAND, J., IN ANOTHER CONTEXT, HELVERING V. PROCTOR, 140 F.2D
87 AT 89. 

FN3  THE STATUTE DISSOLVING DEFENSE SUPPLIES CORPORATION, FOOTNOTE 6,
INFRA, IS AN EXAMPLE. 

FN4  MUMMA V. POTOMAC CO., SUPRA; PEORA COAL CO. V. ASHCRAFT, 123 W.
VA. 586, 595, 17 S.E.2D 444, 448. 

FN5  THE PROBLEM IS DISTINCT FROM THAT OF SURVIVAL OF CAUSES OF
ACTION.  FIX V. PHILADELPHIA BARGE CO., 290 U.S. 530. 

FN6  "RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT, NOTWITHSTANDING
ANY OTHER PROVISION OF LAW, ALL FUNCTIONS, POWERS, DUTIES, AND
AUTHORITY OF THE CORPORATIONS HEREINAFTER DESIGNATED, ARE HEREBY
TRANSFERRED, TOGETHER WITH ALL THEIR DOCUMENTS, BOOKS OF ACCOUNT,
RECORDS, ASSETS, AND LIABILITIES OF EVERY KIND AND NATURE, TO
RECONSTRUCTION FINANCE CORPORATION AND SHALL BE PERFORMED, EXERCISED,
AND ADMINISTERED BY THAT CORPORATION IN THE SAME MANNER AND TO THE SAME
EXTENT AND EFFECT AS IF ORIGINALLY VESTED IN RECONSTRUCTION FINANCE
CORPORATION, AND THE DESIGNATED CORPORATIONS ARE HEREBY DISSOLVED:
DEFENSE PLANT CORPORATION, METALS RESERVE COMPANY, RUBBER RESERVE
COMPANY, AND DEFENSE SUPPLIES CORPORATION, CREATED BY RECONSTRUCTION
FINANCE CORPORATION PURSUANT TO THE ACT OF JUNE 25, 1940(54 STAT. 572),
AND DISASTER LOAN CORPORATION, CREATED BY THE ACT OF FEBRUARY 11,
1937(50 STAT. 19), ARE HEREBY DESIGNATED AS THE CORPORATIONS TO WHICH
THIS JOINT RESOLUTION APPLIES. 

"SEC. 2.  THE RECONSTRUCTION FINANCE CORPORATION SHALL ASSUME AND BE
SUBJECT TO ALL LIABILITIES, WHETHER ARISING OUT OF CONTRACT OR
OTHERWISE, OF THE CORPORATIONS DISSOLVED BY THIS JOINT RESOLUTION.  NO
SUIT, ACTION, OR OTHER PROCEEDING LAWFULLY COMMENCED BY OR AGAINST ANY
OF SUCH CORPORATIONS SHALL ABATE BY REASON OF THE ENACTMENT OF THIS
JOINT RESOLUTION, BUT THE COURT, ON MOTION OR SUPPLEMENTAL PETITION
FILED AT ANY TIME WITHIN TWELVE MONTHS AFTER THE DATE OF SUCH
ENACTMENT, SHOWING A NECESSITY FOR THE SURVIVAL OF SUCH SUIT, ACTION,
OR OTHER PROCEEDING TO OBTAIN A DETERMINATION OF THE QUESTIONS
INVOLVED, MAY ALLOW THE SAME TO BE MAINTAINED BY OR AGAINST THE
RECONSTRUCTION FINANCE CORPORATION.    "SEC. 3.  THIS JOINT RESOLUTION
SHALL TAKE EFFECT ON JULY 1, 1945."  59 STAT. 310. 

FN7  "BE IT ENACTED  ...  THAT NO SUIT, ACTION, OR OTHER PROCEEDING
LAWFULLY COMMENCED BY OR AGAINST THE HEAD OF ANY DEPARTMENT OR BUREAU
OR OTHER OFFICER OF THE UNITED STATES IN HIS OFFICIAL CAPACITY, OR IN
RELATION TO THE DISCHARGE OF HIS OFFICIAL DUTIES, SHALL ABATE BY REASON
OF HIS DEATH, OR THE EXPIRATION OF HIS TERM OF OFFICE, OR HIS
RETIREMENT, OR RESIGNATION, OR REMOVAL FROM OFFICE, BUT, IN SUCH EVENT,
THE COURT, ON MOTION OR SUPPLEMENTAL PETITION FILED, AT ANY TIME WITHIN
TWELVE MONTHS THEREAFTER, SHOWING A NECESSITY FOR THE SURVIVAL THEREOF
TO OBTAIN A SETTLEMENT OF THE QUESTIONS INVOLVED, MAY ALLOW THE SAME TO
BE MAINTAINED BY OR AGAINST HIS SUCCESSOR IN OFFICE  ...  "  30 STAT.
822. 

FN8  MR. MCADOO RESIGNED AS SECRETARY OF THE TREASURY ON NOVEMBER 22,
1918.  THE RESIGNATION WAS TO BE EFFECTIVE WHEN HIS SUCCESSOR TOOK
OFFICE.  NEW YORK TIMES, NOV. 23, 1918, P. 1, COL. 8.  CARTER GLASS
TOOK OFFICE AS SECRETARY OF THE TREASURY ON DECEMBER 16, 1918.  NEW
YORK TIMES, DEC. 17, 1918, P. 17, COL. 2.  THE WRIT IN LECRONE V.
MCADOO WAS DISMISSED ON JUNE 1, 1920. 

JOHN BARTON PAYNE RESIGNED AS DIRECTOR GENERAL OF RAILROADS IN APRIL,
1921.  WHO WAS WHO IN AMERICA (CHICAGO, 1943), P. 946.  THE WRIT IN
PAYNE V. INDUSTRIAL BOARD WAS DISMISSED ON MAY 1, 1922. 

FN9  "BE IT ENACTED  ...  SEC. 11.  (A) THAT WHERE, DURING THE
PENDENCY OF AN ACTION, SUIT, OR OTHER PROCEEDING BROUGHT BY OR AGAINST
AN OFFICER OF THE UNITED STATES, OR OF THE DISTRICT OF COLUMBIA, OR THE
CANAL ZONE, OR OF A TERRITORY OR AN INSULAR POSSESSION OF THE UNITED
STATES, ...  SUCH OFFICER DIES, RESIGNS, OR OTHERWISE CEASES TO HOLD
SUCH OFFICE, IT SHALL BE COMPETENT FOR THE COURT WHEREIN THE ACTION,
SUIT, OR PROCEEDING IS PENDING, WHETHER THE COURT BE ONE OF FIRST
INSTANCE OR AN APPELLATE TRIBUNAL, TO PERMIT THE CAUSE TO BE CONTINUED
AND MAINTAINED BY OR AGAINST THE SUCCESSOR IN OFFICE OF SUCH OFFICER,
IF WITHIN SIX MONTHS AFTER HIS DEATH OR SEPARATION FROM THE OFFICE IT
BE SATISFACTORILY SHOWN TO THE COURT THAT THERE IS A SUBSTANTIAL NEED
FOR SO CONTINUING AND MAINTAINING THE CAUSE AND OBTAINING AN
ADJUDICATION OF THE QUESTIONS INVOLVED."  43 STAT. 936, 941. 

FN10 THE VIEW WE TAKE OF THIS CASE MAKES IT UNNECESSARY TO DECIDE
WHETHER PRINCIPLES OF ESTOPPEL MIGHT NOT FORECLOSE RESPONDENTS' ATTACK
UPON THE FAILURE TO SUBSTITUTE.  COMPARE HABICH V. FOLGER, 20 WALL.  1;
PEASE V. RATHBUN-JONES ENGINEERING CO., SUPRA, AT 277; WITH UNITED
STATES EX REL. CLAUSSEN V. CURRAN, SUPRA; AND MUMMA V. POTOMAC CO.,
SUPRA.  NOR NEED WE DETERMINE WHETHER THE ENTRY OF A NUNC PRO TUNC
ORDER BY THE COURT OF APPEALS WOULD HAVE PROPERLY AVOIDED THE PROBLEM
OF STATUTORY CONSTRUCTION.  COMPARE JACKSON V. SMIETANKA, 272 F. 970,
WITH MITCHELL V. OVERMAN, 103 U.S. 62; QUON QUON POY V. JOHNSON, 273
U.S. 352, 359; SHAKMAN V. UNITED STATES CREDIT SYSTEM CO., 92 WIS. 366,
377-378, 66 N.W. 528, 532; STATE V. WALDO BANK, 20 ME. 470. 
..END :











UNITED STATES V. JONES, 336 U.S. 641 


ARGUED FEBRUARY 2-3, 1949.  - DECIDED APRIL 18, 1949.  - 110 CT. CL.
330, 77 F.SUPP.  197, REVERSED. 


1.  AFTER THE INTERSTATE COMMERCE COMMISSION HAD TWICE DENIED
APPLICATIONS BY A RAILROAD FOR INCREASED COMPENSATION FOR CARRYING THE
MAIL, ON THE GROUND THAT THE GENERAL RATES FIXED BY THE COMMISSION
UNDER THE RAILWAY MAIL PAY ACT, 39 U.S.C. SECS. 523-568, AND ALREADY
PAID WERE "FAIR AND REASONABLE" AS APPLIED TO SUCH RAILROAD, THE COURT
OF CLAIMS AWARDED THE RAILROAD A MONEY JUDGMENT FOR ADDITIONAL
COMPENSATION.  HELD:  THIS AMOUNTED TO A REVIEW AND REVISION OF THE
COMMISSION'S FINDINGS AND ORDERS AND WAS BEYOND THE JURISDICTION OF THE
COURT OF CLAIMS.  PP. 651-653, 662-671. 

(A)  CONGRESS HAS NOT EXPRESSLY EMPOWERED THE COURT OF CLAIMS TO
REVIEW RATE ORDERS OF THE COMMISSION EITHER TO SET THEM ASIDE OR TO
RENDER A MONEY JUDGMENT FOR ADDITIONAL AMOUNTS FOUND DUE UPON A
DETERMINATION OF THE INVALIDITY OF SUCH AN ORDER; AND TO INFER AN
INTENTION TO CONFER SUCH JURISDICTION WOULD BE CONTRARY TO THE
LIMITATIONS CONGRESS HAS PLACED UPON REVIEW OF SUCH ORDERS WHEREVER
EXPRESSLY PROVIDED AS WELL AS TO THE WHOLE HISTORY AND PRACTICE OF
CONGRESS IN CONFERRING JURISDICTION ON THE COURT OF CLAIMS.  PP. 651
653. 

(B)  NO SUCH JURISDICTION WAS INTENDED TO BE SUGGESTED BY THE
LANGUAGE OF THIS COURT'S OPINION IN UNITED STATES V. GRIFFIN, 303 U.S.
226, 238.  PP. 666-671. 

(C)  IN THIS CASE, THE COURT OF CLAIMS HAS NOT "GIVEN EFFECT" TO THE
COMMISSION'S RATE ORDER, BUT, IN THE GUISE OF FINDING "ERROR OF LAW,"
HAS SET IT ASIDE TOGETHER WITH THE COMMISSION'S FINDINGS, HAS
SUBSTITUTED "FINDINGS" OF ITS OWN, AND, IN EFFECT, HAS MADE A NEW ORDER
BY ITS JUDGMENT.  PP. 653, 662-665, 669. 

(D)  THE SAME RESULT WOULD FOLLOW IF THIS SUIT COULD BE REGARDED AS
ONE FOR JUST COMPENSATION UNDER THE FIFTH AMENDMENT, SINCE RESPONDENT
HAS NOT SHOWN THAT THE COMMISSION'S ORDER WAS CONFISCATORY AND SINCE
THE ENTRY OF A MONEY JUDGMENT BY THE COURT OF CLAIMS WOULD SHORT
CIRCUIT THE COMMISSION IN THE RATE-MAKING PROCESS.  PP. 670-671. 

(E) WHERE THE COMMISSION IS ALLEGED TO HAVE ACTED IN EXCESS OF ITS
AUTHORITY OR OTHERWISE ILLEGALLY, A MORE APPROPRIATE REMEDY WOULD BE A
SUIT IN A DISTRICT COURT AS ONE ARISING UNDER THE POSTAL LAWS, 28
U.S.C. SEC. 1339, SINCE, UNLIKE THE COURT OF CLAIMS, A DISTRICT COURT
IS NOT CONFINED TO RENDERING A MONEY JUDGMENT BY WAY OF RELIEF AGAINST
THE UNITED STATES BUT, IF IT FOUND A RATE ORDER INVALID, WOULD HAVE
POWER UNDER ITS GENERAL EQUITY JURISDICTION TO REMAND THE CAUSE TO THE
COMMISSION FOR FURTHER PROCEEDINGS.  PP. 671-673. 

2.  AFTER REVIEWING THE EXTENDED LITIGATION ARISING OUT OF
APPLICATION TO THIS CARRIER OF THE COMMISSION'S GENERAL ORDERS FIXING
RATES FOR TRANSPORTING MAIL, THIS COURT FINDS (1) THAT THE CARRIER HAS
NOT SUSTAINED ITS BURDEN OF SHOWING THAT THE COMMISSION ACTED
ARBITRARILY OR UNREASONABLY, AND (2) THAT THE GENERAL RATES FIXED BY
THE COMMISSION'S 1928 ORDER ARE, UPON THE RECORD MADE, FAIR AND
REASONABLE AS APPLIED TO THIS CARRIER.  PP. 653-666. 

UNITED STATES V. JONES, RECEIVER. 

NO. 135.  CERTIORARI TO THE COURT OF CLAIMS.* 

*TOGETHER WITH NO. 198, JONES, RECEIVER, V. UNITED STATES, ALSO ON
CERTIORARI TO THE SAME COURT. 

IN A SUIT BY THE RECEIVER OF A RAILROAD, THE COURT OF CLAIMS AWARDED
A JUDGMENT FOR INCREASED COMPENSATION FOR THE TRANSPORTATION OF MAIL,
NOTWITHSTANDING FINDINGS AND ORDERS OF THE INTERSTATE COMMERCE
COMMISSION (192 I.C.C. 779; 214 I.C.C. 66) DENYING ANY INCREASE BEYOND
THE AMOUNTS ALREADY PAID FOR THAT SERVICE UNDER THE GENERAL RATES FIXED
BY THE COMMISSION.  110 CT. CL. 330, 77 F.SUPP.  197.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 883.  REVERSED AND REMANDED, P. 673. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY BEGAN IN 1931, WHEN RESPONDENT'S  FN1  PREDECESSORS
AS RECEIVERS OF THE GEORGIA & FLORIDA RAILROAD FILED AN APPLICATION
WITH THE INTERSTATE COMMERCE COMMISSION FOR A REEXAMINATION OF RATES
THEN APPLICABLE TO IT FOR TRANSPORTING THE MAILS.  SINCE THEN, IN ONE
FORM OR ANOTHER, THE DISPUTE HAS FOUND ITS WAY BACK AND FORTH THROUGH
THE COMMISSION AND THE COURTS, FINALLY TO COME HERE NOW FOR THE SECOND
TIME.  SEE UNITED STATES V. GRIFFIN, 303 U.S. 226. 

THROUGH ALL THESE YEARS THE CARRIER AND THE COMMISSION HAVE BEEN AT
ODDS OVER WHETHER THE RAILROAD IS ENTITLED TO AN INCREASE IN THE RATES
PRESCRIBED FOR ITS SERVICE FOR THE PERIOD BEGINNING APRIL 1, 1931, AND
ENDING, AS COVERED BY THE PRESENT SUIT, FEBRUARY 28, 1938.  THE CASE IS
NOW HERE ON CERTIORARI TO THE COURT OF CLAIMS, 335 U.S. 883, WHICH HAS
RENDERED A JUDGMENT AWARDING RESPONDENT $186,707.06 AS INCREASED
COMPENSATION DUE FOR THE YEARS 1931 TO 1938, GRIFFIN V. UNITED STATES,
110 CT. CL. 330, CONTRARY TO THE FINDINGS AND ORDERS OF THE COMMISSION
DENYING ANY INCREASE BEYOND THE AMOUNTS ALREADY PAID FOR THAT SERVICE
UNDER THE RATES FIXED BY IT. RAILWAY MAIL PAY, GEORGIA & FLORIDA R.
CO., 192 I.C.C. 779; ID., 214 I.C.C. 66. 

                             I. 

A STATEMENT OF THE BACKGROUND AND COURSE OF THE LITIGATION WILL AID
IN UNDERSTANDING THE RATHER COMPLICATED PROBLEMS PRESENTED, BOTH ON THE
MERITS AND AFFECTING JURISDICTION. 

IN 1916 CONGRESS ENACTED THE RAILWAY MAIL PAY ACT.  39 U.S.C. SECS.
523-568.  THIS EMBODIED A COMPREHENSIVE SCHEME FOR REGULATING
TRANSPORTATION OF THE MAILS BY RAILROAD COMMON CARRIERS.  SUCH CARRIERS
WERE REQUIRED TO TRANSPORT THE MAILS PURSUANT TO THE ACT'S PROVISIONS. 
THESE INCLUDED THAT THE CARRIERS SHOULD BE COMPENSATED AT "FAIR AND
REASONABLE RATES" TO BE FIXED AND DETERMINED BY THE INTERSTATE COMMERCE
COMMISSION.  THE RATES WERE TO BE ESTABLISHED ONLY AFTER NOTICE AND
HEARING.  BUT AFTER SIX MONTHS FROM THE ENTRY OF A RATE ORDER THE
POSTMASTER GENERAL OR A CARRIER WAS AUTHORIZED TO APPLY FOR A
REEXAMINATION OF THE ORDER.  39 U.S.C. SECS. 541, 542, 544-554. 

THE COMMISSION WAS AUTHORIZED TO PRESCRIBE "THE METHOD OR METHODS BY
WEIGHT, OR SPACE, OR BOTH, OR OTHERWISE, FOR ASCERTAINING SUCH RATE,"
39 U.S.C. SEC. 542, AND FOR THE SAME PURPOSE "TO MAKE SUCH
CLASSIFICATION OF CARRIERS AS MAY BE JUST AND REASONABLE AND, WHERE
JUST AND EQUITABLE, FIX GENERAL RATES APPLICABLE TO ALL CARRIERS IN THE
SAME CLASSIFICATION."  39 U.S.C. SEC. 549.  OTHER SECTIONS SPECIFY AND
DEFINE FOUR CLASSES OF SERVICE, NAMELY, FULL RAILWAY POST-OFFICE CAR
SERVICE, APARTMENT SERVICE, STORAGE-CAR SERVICE AND CLOSED-POUCH
SERVICE.  39 U.S.C. SECS. 525-530.  FN2 ONLY APARTMENT SERVICE AND
CLOSED-POUCH SERVICE ARE INVOLVED IN THIS CASE. 

ON DECEMBER 23, 1919, AFTER EXTENDED INVESTIGATION AND HEARINGS, THE
COMMISSION ENTERED ITS FIRST GENERAL MAIL RATE ORDER.  RAILWAY-MAIL
PAY, 56 I.C.C. 1.  THIS ADOPTED THE SPACE BASIS FOR DETERMINING "FAIR
AND REASONABLE RATES."  ON JULY 10, 1928, IN PROCEEDINGS FOR
REEXAMINATION THE COMMISSION GRANTED A GENERAL INCREASE OF 15% OVER THE
PREEXISTING RATES.  RAILWAY MAIL PAY, 144 I.C.C. 675.  THE GEORGIA &
FLORIDA RAILROAD ACCEPTED THESE GENERAL RATES UNTIL APRIL 1, 1931. 

AT THAT TIME IT APPLIED TO THE COMMISSION FOR A REEXAMINATION OF THE
RATES AS APPLIED TO ITSELF.  THE APPLICATION WAS HEARD AND DETERMINED
BY DIVISION 5.  ON MAY 10, 1933, THE COMMISSION DENIED ANY INCREASE,
HOLDING THE GENERAL RATES ESTABLISHED BY THE ORDER OF JULY 10, 1928,
FAIR AND REASONABLE AS APPLIED TO THIS CARRIER.  RAILWAY MAIL PAY,
GEORGIA & FLORIDA R. CO., 192 I.C.C. 779.  THIS ORDER IS IN SUBSTANCE,
THOUGH NOT TECHNICALLY, THE ONE NOW INVOLVED. 

AFTER THE COMMISSION HAD DENIED RECONSIDERATION, THE RAILROAD SUED IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
TO SET ASIDE THE COMMISSION'S ORDER.  A SPECIAL THREE-JUDGE COURT WAS
CONVENED, CF. THE URGENT DEFICIENCIES ACT, FORMER 28 U.S.C. SECS.
41(28), 47; HELD THE ORDER UNLAWFUL; AND REMANDED THE CASE TO THE
COMMISSION FOR FURTHER PROCEEDINGS.  THIS DECREE WAS FILED ON JANUARY
23, 1935. 

THEREUPON THE FULL COMMISSION CONDUCTED FURTHER HEARINGS AND IN A
REPORT FILED FEBRUARY 4, 1936, AGAIN FOUND THE RATES PREVIOUSLY FIXED
TO BE FAIR AND REASONABLE IN THEIR APPLICATION TO THE GEORGIA & FLORIDA
RAILROAD.  THE ORDER THEREFORE DENIED ANY INCREASE.  RAILWAY MAIL PAY,
GEORGIA & FLORIDA R. CO., 214 I.C.C. 66. 

AGAIN THE CARRIER RESORTED TO THE DISTRICT COURT, FILING A
SUPPLEMENTAL BILL.  AND AGAIN THAT COURT, COMPOSED OF THE SAME THREE
JUDGES, HELD THE COMMISSION'S ORDER UNLAWFUL IN A DECREE FILED ON
FEBRUARY 23, 1937.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT,
WHICH, IN UNITED STATES V. GRIFFIN, SUPRA, HELD THAT THE ORDER WAS NOT
OF A TYPE REVIEWABLE UNDER THE URGENT DEFICIENCIES ACT.  FN3
ACCORDINGLY, ON FEBRUARY 28, 1938, THE DISTRICT COURT'S JUDGMENT WAS
REVERSED WITH DIRECTIONS TO DISMISS THE BILL AND WITHOUT DETERMINATION
OF THE CAUSE ON THE MERITS. 

AFTER NEARLY FOUR YEARS THE RECEIVERS RENEWED THE LITIGATION BY
FILING THIS SUIT IN THE COURT OF CLAIMS.  THE AMENDED PETITION SETS
FORTH IN SOME DETAIL THE HISTORY OF THE PREVIOUS STAGES OF CONTROVERSY
BEFORE THE COMMISSION AND THE COURTS.  THE CARRIER'S BASIC CLAIMS ON
THE MERITS ARE SUBSTANTIALLY THE SAME AS IN THOSE PROCEEDINGS.  THEY
ARE, IN EFFECT, (1) THAT THE COMMISSION'S ORDERS DENYING ANY INCREASE
ARE CONFISCATORY, IN THAT THE RATES PRESCRIBED BY THE GENERAL RATE
ORDER OF JULY 10, 1928, AND CONTINUED IN EFFECT SPECIFICALLY AS TO THIS
CARRIER BY THE ORDERS OF MAY 10, 1933, AND FEBRUARY 4, 1936, DO NOT
AFFORD JUST COMPENSATION UNDER THE FIFTH AMENDMENT ON THE GROUND THAT
THEY DO NOT PROVIDE FOR PAYMENT OF THE COST OF THE SERVICE RENDERED
PLUS A REASONABLE RETURN UPON INVESTED CAPITAL ALLOCATED TO THAT
SERVICE; AND (2) THAT THE COMMISSION'S ORDERS DO NOT AFFORD THE "FAIR
AND REASONABLE" COMPENSATION REQUIRED BY THE RAILWAY MAIL PAY ACT.  FN4
BOTH CLAIMS REST UPON ATTACKS MADE ON THE COMMISSION'S FINDINGS AS
BEING UNSUPPORTED BY THE EVIDENCE BEFORE IT AND ON ITS CONCLUSIONS AS
BEING CONTRARY TO THAT EVIDENCE. 

TO SUSTAIN JURISDICTION IN THE COURT OF CLAIMS, RESPONDENT RESTS UPON
SEC. 145 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 250, NOW 28 U.S.C. SEC.
1491, AND UPON STATEMENTS MADE IN PART FOURTH OF THE OPINION IN UNITED
STATES V. GRIFFIN, 303 U.S. AT 238.  FN5

                II. 

ALTHOUGH THE RAILWAY MAIL PAY ACT CONTAINS NO EXPLICIT PROVISION FOR
JUDICIAL REVIEW OF ORDERS OF THE INTERSTATE COMMERCE COMMISSION FIXING
RATES OF PAY FOR TRANSPORTING THE MAILS PURSUANT TO AUTHORIZATIONS OF
THE POSTMASTER GENERAL FOR SUCH SERVICE, IT HAD BEEN THOUGHT, UNTIL THE
DECISION IN UNITED STATES V. GRIFFIN, SUPRA, THAT SUCH ORDERS WERE OF
THE KIND REVIEWABLE UNDER THE URGENT DEFICIENCIES ACT.  THE EFFECT OF
THAT DECISION, HOWEVER, WAS TO RULE OUT SUCH ORDERS AS THOSE NOW IN
QUESTION FROM THE JURISDICTION CONFERRED BY THE LATTER ACT. 

WHILE THE "NEGATIVE ORDER" BASIS FOR THE COURT'S RULING IS NO LONGER
EFFECTIVE, ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, THE
ALTERNATIVE GROUNDING REMAINS IN FULL FORCE.  303 U.S. AT 234.  FN6
SINCE THE VERY ORDERS NOW IN ISSUE WERE INVOLVED IN THE GRIFFIN CASE,
IT IS SETTLED THAT THE RAILROAD OR ITS RECEIVERS HAD NO RECOURSE TO A
DISTRICT COURT, UNDER THE URGENT DEFICIENCIES ACT, FOR SECURING REVIEW
OF THE COMMISSION'S ORDERS OR RELIEF OF THE TYPE NOW SOUGHT. 

THE COURT IN THE GRIFFIN CASE, HOWEVER, WAS NOT CONTENT TO REST
MERELY WITH THIS NEGATIVE JURISDICTIONAL RULING.  IN PART FOURTH OF THE
OPINION THE COURT WENT ON TO SAY THAT ITS RULING DID NOT "PRECLUDE
EVERY CHARACTER OF JUDICIAL REVIEW."  303 U.S. AT 238.  THE OPINION
THEN SUGGESTED THREE POSSIBLE OTHER METHODS, TWO IN THE COURT OF CLAIMS
AND ONE IN THE DISTRICT COURTS. 

WITHOUT DOUBT IT WAS DUE TO THESE SUGGESTIONS THAT RESPONDENT'S
PREDECESSORS CHOSE TO BRING THIS SUIT IN THE COURT OF CLAIMS.  THE
LANGUAGE IN WHICH THE SUGGESTIONS WERE MADE HAS ASSUMED SUCH
IMPORTANCE, IN VIEW OF THE PROBLEMS RAISED BY THE RECEIVERS' CHOICE IN
FOLLOWING THEM, THAT IT SEEMS WISE HERE TO QUOTE IN FULL WHAT THE COURT
SAID: 

"IF THE COMMISSION MAKES THE APPROPRIATE FINDING OF REASONABLE
COMPENSATION BUT FAILS, BECAUSE OF AN ALLEGED ERROR OF LAW, TO ORDER
PAYMENT OF THE FULL AMOUNT WHICH THE RAILROAD BELIEVES IS PAYABLE UNDER
THE FINDING, THE COURT OF CLAIMS HAS JURISDICTION OF AN ACTION FOR THE
BALANCE, AS THE CLAIM ASSERTED IS ONE FOUNDED UPON A LAW OF CONGRESS. 
MISSOURI PACIFIC R. CO. V. UNITED STATES, 271 U.S. 603.  COMPARE UNITED
STATES V. NEW YORK CENTRAL R. CO., 279 U.S. 73, AFFIRMING 65 CT. CL.
115, 121.  AND SINCE RAILWAY MAIL SERVICE IS COMPULSORY, THE COURT OF
CLAIMS WOULD, UNDER THE GENERAL PROVISIONS OF THE TUCKER ACT, HAVE
JURISDICTION ALSO OF AN ACTION FOR ADDITIONAL COMPENSATION IF AN ORDER
IS CONFISCATORY.  UNITED STATES V. GREAT FALLS MFG. CO., 112 U.S. 645;
NORTH AMERICAN TRANSPORTATION & TRADING CO. V. UNITED STATES, 253 U.S.
330, 333; JACOBS V. UNITED STATES, 290 U.S. 13, 16.  MOREOVER, AS
DISTRICT COURTS HAVE JURISDICTION OF EVERY SUIT AT LAW OR IN EQUITY
'ARISING UNDER THE POSTAL LAWS,' 28 U.S.C., SEC. 41(6), SUIT WOULD LIE
UNDER THEIR GENERAL JURISDICTION IF THE COMMISSION IS ALLEGED TO HAVE
ACTED IN EXCESS OF ITS AUTHORITY, OR OTHERWISE ILLEGALLY.  COMPARE
POWELL V. UNITED STATES, 300 U.S. 276, 288, 289."  303 U.S. AT 238. 

RESPONDENT AND THE COURT OF CLAIMS ARE AT ODDS OVER WHETHER THE
CARRIER'S CLAIMS NOW ASSERTED FALL UNDER THE FIRST OR THE SECOND CLASS
OF CASES OF WHICH THIS COURT SAID THE COURT OF CLAIMS WOULD HAVE
JURISDICTION.  RESPONDENT INSISTS, BOTH IN THE COMPLAINT AND IN THE
BRIEF FILED HERE, THAT HIS CLAIM IS GROUNDED ON THE BASIS THAT THE
COMMISSION'S ORDERS ARE CONFISCATORY AND HAVE THE EFFECT OF DEPRIVING
THE CARRIER OF ITS PROPERTY AND SERVICES WITHOUT JUST COMPENSATION DUE
UNDER THE FIFTH AMENDMENT. 

ON THE OTHER HAND, THE COURT OF CLAIMS EXPRESSLY DISCLAIMS THAT IT
WAS EXERCISING ANY JURISDICTION OVER CONSTITUTIONAL MATTERS.  THIS WAS
DONE IN DENYING THE CARRIER'S CLAIM TO INTEREST ON THE AWARD.  FN7  IN
THE COURT'S VIEW THEREFORE THE JURISDICTION WHICH IT WAS EXERTING FELL
WITHIN THE FIRST CLASS OF CASES STATED IN THE GRIFFIN OPINION TO BE
WITHIN THE COURT OF CLAIMS' JURISDICTION, NAMELY, WHERE THE COMMISSION
MAKES THE APPROPRIATE FINDING OF REASONABLE COMPENSATION BUT FAILS,
BECAUSE OF AN ALLEGED ERROR OF LAW, TO ORDER PAYMENT OF THE FULL AMOUNT
THE CARRIER BELIEVES PAYABLE UNDER THE FINDING. 

THE GOVERNMENT, HOWEVER, INSISTS THAT THE COURT OF CLAIMS DID NOT
EXERCISE JURISDICTION UNDER THIS CATEGORY.  IT DISPUTES THAT THE COURT
"GAVE EFFECT," AS THE COURT STATED,  FN8  TO THE COMMISSION'S ORDER OR
ORDERED PAYMENT OF ANY BALANCE DUE UNDER THE COMMISSION'S FINDING. 
RATHER, THE GOVERNMENT URGES, THE COURT FLOUTED THAT ORDER, SUBSTITUTED
ITS OWN JUDGMENT FOR THE COMMISSION'S CONCERNING THE APPROPRIATE ORDER
TO BE ENTERED, AND IN EFFECT ENTERED A WHOLLY NEW AND DIFFERENT ORDER
FROM THAT MADE BY THE COMMISSION, TOGETHER WITH A MONEY JUDGMENT GIVING
ITS OWN VIEW EFFECT. 

ORDINARILY IT WOULD BE SUFFICIENT FOR US TO TAKE THE COURT OF CLAIMS
AT ITS WORD AND ACCEPT ITS STATED VIEW OF THE NATURE OF THE
JURISDICTION IT WAS EXERTING.  BUT THE THREE DIFFERING VIEWS OF ITS
ACTION TAKEN BY ITSELF, BY THE GOVERNMENT, AND BY THE RESPONDENT,
TOGETHER WITH THE DIFFICULTIES EACH RAISES ON THE RECORD FOR DISPOSING
OF THE CAUSE, COMPEL US TO EXAMINE THOSE CLAIMS. 

IF, AS THE COURT ASSERTS, IT WAS "GIVING EFFECT" TO THE COMMISSION'S
ORDER AND DOING SO WITHOUT SUBSTITUTING ITS OWN JUDGMENT FOR THE
COMMISSION'S AS TO WHAT WAS A "FAIR AND REASONABLE RATE," THERE SHOULD
BE LITTLE DIFFICULTY IN SUSTAINING THE JURISDICTION; FN9  THAT IS,
UNLESS RESPONDENT IS RIGHT IN HIS CONTENTION THAT THE COURT WAS CALLED
UPON TO AND, NOTWITHSTANDING ITS DISCLAIMER, IN FACT DID ADJUDICATE HIS
CLAIM FOR JUST COMPENSATION UNDER THE FIFTH AMENDMENT.  IN THAT EVENT
AND ON THE ASSUMPTION THAT THE AWARD WAS PROPER ON THE MERITS, REVERSAL
WOULD BE REQUIRED IN ORDER THAT THE COURT MIGHT MAKE APPROPRIATE
ALLOWANCE FOR INTEREST.  FN10 

ON THE OTHER HAND, IF THE GOVERNMENT IS CORRECT IN THE VIEW THAT THE
COURT DID NOT GIVE EFFECT TO THE COMMISSION'S ORDER, BUT INSTEAD
DISREGARDED THAT ORDER AND SUBSTITUTED ITS OWN JUDGMENT FOR THE
COMMISSION'S CONCERNING WHAT CONSTITUTED A "FAIR AND REASONABLE RATE,"
THE QUESTION ARISES WHETHER THE GRIFFIN STATEMENTS WERE INTENDED TO
GIVE THAT POWER TO THE COURT OF CLAIMS UNDER EITHER CATEGORY OF
JURISDICTION THE OPINION SAID THAT COURT MIGHT HAVE. 
              III. 

THE RAILWAY MAIL PAY ACT GIVES THE INTERSTATE COMMERCE COMMISSION
EXCLUSIVE JURISDICTION TO DETERMINE "FAIR AND REASONABLE RATES."  THE
URGENT DEFICIENCIES ACT PROVIDED FOR JUDICIAL REVIEW OF THE
COMMISSION'S RATE ORDERS IN "CASES BROUGHT TO ENJOIN, SET ASIDE, ANNUL
OR SUSPEND" SUCH ORDERS.  NO POWER WAS GIVEN THE REVIEWING COURT TO
REVISE THEM WHEN FOUND INVALID, OR TO RENDER JUDGMENT FOR ANY AMOUNT
THOUGHT TO BE DUE UNDER SUCH A REVISION. 

IT WOULD BE STRANGE, INDEED ANOMALOUS IN THE EXTREME, IF THIS COURT
BY ITS GRIFFIN PRONOUNCEMENTS INTENDED TO CONFER ON THE COURT OF
CLAIMS, BY IMPLICATION IN THE CASES THERE HELD NOT REVIEWABLE UNDER THE
URGENT DEFICIENCIES ACT, A BROADER, MORE CONCLUSIVE AND FINAL POWER OF
JUDICIAL REVIEW THAN THAT ACT EXPRESSLY PROVIDED FOR LIKE ORDERS WITHIN
ITS PURVIEW.  THE ASSUMPTION IS HARDLY TENABLE THAT CONGRESS INTENDED
SUCH A RESULT WHEN IT ENACTED THE RAILWAY MAIL PAY ACT OR THE URGENT
DEFICIENCIES ACT OR BOTH.  CONGRESS IN NO INSTANCE HAS EXPRESSLY
EMPOWERED THE COURT OF CLAIMS TO REVIEW RATE ORDERS OF THE COMMISSION,
FN11  EITHER TO SET THEM ASIDE OR TO RENDER A MONEY JUDGMENT FOR
ADDITIONAL AMOUNTS FOUND DUE UPON A DETERMINATION OF AN ORDER'S
INVALIDITY.  TO INFER SUCH AN INTENTION WOULD BE CONTRARY NOT ONLY IN
SPIRIT TO THE LIMITATIONS CONGRESS HAS PLACED UPON REVIEW OF SUCH
ORDERS WHEREVER EXPRESSLY PROVIDED, BUT ALSO TO THE WHOLE HISTORY AND
PRACTICE OF CONGRESS IN CONFERRING JURISDICTION ON THE COURT OF
CLAIMS. 

THUS, WHEN THESE VERY ORDERS WERE TWICE BEFORE THE DISTRICT COURT,
UNDER THE ASSUMPTION THAT IT HAD JURISDICTION, THAT COURT FOUND THE
ORDERS INVALID.  BUT IN EACH INSTANCE IT REMANDED THE CAUSE TO THE
COMMISSION FOR FURTHER PROCEEDINGS; THERE WAS NO ATTEMPT TO RENDER A
MONEY JUDGMENT FOR THE CARRIER. 

NECESSARILY THIS RESTRAINT REFLECTED THE JURISDICTIONAL LIMITATIONS
PLACED UPON THE COURT BY THE URGENT DEFICIENCIES ACT.  BUT THOSE
LIMITATIONS THEMSELVES REFLECTED ANOTHER POLICY, QUITE APART FROM AND
IN ADDITION TO THAT GIVING EFFECT TO THE CONSTITUTIONAL LIMITATIONS OF
ARTICLE III.  FN12 THE LIMITATIONS EXEMPLIFY SETTLED CONGRESSIONAL
POLICY CONCERNING THE RELATIONS OF RATE-MAKING BODIES AND REVIEWING
COURTS.  NOT ONLY IS RATE MAKING ESSENTIALLY LEGISLATIVE IN THE FIRST
INSTANCE.  THE POLICY OF JUDICIAL RESTRAINT IS ONE HAVING REGARD FOR
THE EXPERTISE OF SPECIAL AGENCIES CHARGED WITH PERFORMING THE RATE
MAKING FUNCTION AND FOR THE INHERENT ACTUAL, AS WELL AS LEGAL,
DISABILITY OF COURTS TO EXECUTE THAT FUNCTION.  SUCH DOCTRINES OR
POLICIES AS THOSE OF "PRIMARY JURISDICTION"  FN13  AND EXHAUSTION OF
ADMINISTRATIVE REMEDIES  FN14  LIE AT THE VERY ROOT OF THE PROBLEM. 
AND THIS IS AS TRUE OF THE JURISDICTION OF THE COURT OF CLAIMS, WHICH
IS NOT RESTRICTED BY ARTICLE III, AS IT IS OF COURTS SO LIMITED.  FN15 

HARDLY CAN IT BE CONCEIVED THEREFORE THAT CONGRESS WOULD HAVE
PROVIDED EXPRESSLY FOR REVIEW OF THE COMMISSION'S RATE-MAKING ORDERS BY
THE COURT OF CLAIMS; OR THAT, IF IT HAD DONE SO, IT WOULD HAVE
AUTHORIZED A MONEY JUDGMENT FOR SUCH AMOUNT AS THAT COURT IN ITS OWN
JUDGMENT CONSIDERED THE RATE SHOULD HAVE PRODUCED. 

IT IS EQUALLY SIGNIFICANT, WE THINK, THAT WHEN THE THREE-JUDGE
DISTRICT COURT TWICE SET ASIDE THE COMMISSION'S ORDER IT DID SO ON
GROUNDS SUBSTANTIALLY SIMILAR TO THOSE USED BY THE COURT OF CLAIMS IN
THIS CASE FOR HOLDING THE ORDER INVALID.  IN OTHER WORDS, WHAT THE
DISTRICT COURT DID BY WAY OF EXAMINING THE ORDERS ON THEIR MERITS,
FACTUAL AS WELL AS LEGAL, THE COURT OF CLAIMS HAS DONE IN THIS CASE. 
INDEED, IT HAS GONE MUCH FURTHER, SINCE IT HAS RENDERED A MONEY
JUDGMENT FOR THE CARRIER COVERING THE PERIOD 1931-1938, HAVING THE
EFFECT IN THE PARTICULAR CIRCUMSTANCES OF A NEW AND FINAL ORDER. 

                                 IV. 

A FULL UNDERSTANDING OF THE COMMISSION'S ORDERS AND OF THE EFFECTS OF
THE ACTION TAKEN REGARDING THEM, BOTH BY THE THREE-JUDGE DISTRICT COURT
AND BY THE COURT OF CLAIMS, CAN BE HAD ONLY BY READING AND COMPARING
THE REPORTS AND OPINIONS.  FN16  THE LIMITATIONS OF SPACE PREVENT
SUMMARIZING THEIR CONTENT HERE IN SUBSTANTIAL DETAIL.  BUT THE GIST OF
THE CONTROVERSY BETWEEN THE COMMISSION AND THE COURTS MAY BE
INDICATED. 

WE NOTE, TO BEGIN WITH, THAT THE COURT AWARDED TO THE RESPONDENT
$186,707.06, OR SOME 87 PER CENT MORE THAN THE AMOUNT ALLOWABLE UNDER
THE COMMISSION'S ORDERS.  THIS IN ITSELF SHOWS THE WIDE DISCREPANCY
BETWEEN THE COMMISSION'S VIEW AND THE COURT'S CONCERNING THE AMOUNT OF
A "FAIR AND REASONABLE RATE." 

MOREOVER, THE COMMISSION'S TASK IN FIXING THAT RATE WAS BOTH GIGANTIC
AND COMPLEX.  IT WAS AUTHORIZED TO MAKE CLASSIFICATION OF CARRIERS
WHERE "JUST AND REASONABLE" AND, "WHERE JUST AND EQUITABLE," TO "FIX
GENERAL RATES APPLICABLE TO ALL CARRIERS IN THE SAME CLASSIFICATION." 
39 U.S.C. SEC. 549.  THAT AUTHORITY OF COURSE WAS NOT TO BE IGNORED IN
APPLYING THE REQUIREMENT FOR COMPENSATION OF CARRIERS AT "FAIR AND
REASONABLE RATES."  39 U.S.C. SEC. 542.  THE TWO WERE NOT ENTIRELY
SEPARATE, BUT WERE MERELY DIFFERENT PRONGS OF THE SAME FORK. 

IN ITS FIRST GENERAL RATE PROCEEDING THE COMMISSION CLASSIFIED THE
NATION'S CARRIERS, FOR MAIL-PAY COMPENSATION PURPOSES, PLACING THE
GEORGIA & FLORIDA RAILROAD IN CLASS I. FN17  IT ALSO DECIDED GENERALLY
UPON THE SPACE BASIS AS AN APPROPRIATE METHOD OF DETERMINING FAIR AND
REASONABLE COMPENSATION.  56 I.C.C. 1. 

RAILROAD ACCOUNTING, HOWEVER, DOES NOT, AND CONCEDEDLY CANNOT,
ACCURATELY REFLECT ACTUAL OPERATING COSTS OF EACH TYPE OF SERVICE
RENDERED, OR THE PROPORTIONATE AMOUNTS OF CAPITAL EMPLOYED IN RENDERING
EACH SERVICE.  THE COMMISSION THEREFORE SOUGHT A METHOD OR METHODS FOR
MAKING SUCH ALLOCATIONS TENTATIVELY AS THE INITIAL STAGE OF PERFORMING
ITS RATE-MAKING FUNCTION.  THIS REQUIRED, FIRST, SEGREGATING FREIGHT
SERVICE FROM PASSENGER TRAIN SERVICE; THEN DIVIDING THE LATTER INTO
THREE CATEGORIES:  PASSENGER SERVICE PROPER (INCLUDING BAGGAGE
SERVICE), EXPRESS SERVICE, AND MAIL SERVICE. 

THE PROBLEM AROSE BOTH IN THE PROCEEDINGS CULMINATING IN THE FIRST
GENERAL RATE ORDER, 56 I.C.C. 1, AND IN THOSE RESULTING IN THE GENERAL
RATE INCREASE OF 1928.  144 I.C.C. 675.  IN THE LATTER THE INITIAL
SEPARATION OF TOTAL OPERATING EXPENSES BETWEEN FREIGHT AND PASSENGER
SERVICES WAS MADE ON THE BASIS OF THE COMMISSION'S RULES GOVERNING SUCH
SEPARATION ON LARGE STEAM RAILWAYS.  ID. AT 685-688.  BUT, FOR
DETERMINING THE COST OF SERVICE IN RESPECT TO THE FURTHER ALLOCATION
AND APPORTIONMENT OF PASSENGER-TRAIN SERVICE AMONG ITS THREE
COMPONENTS, THE COMMISSION, HAVING DETERMINED UPON THE SPACE BASIS FOR
THIS INITIAL STAGE IN FIXING "FAIR AND REASONABLE RATES," WAS FACED
WITH THE PROBLEM OF WHAT SHOULD BE DONE WITH UNUSED SPACE. 

THAT PROBLEM PRESENTS THE CRUX OF THIS CASE, AS IT DID OF THE
COMMISSION'S ACTION.  IN THE PROCEEDINGS LEADING TO THE 1928 ORDER,
THREE GENERAL PLANS WERE GIVEN PRIMARY CONSIDERATION FOR DISTRIBUTING
SPACE.  THEY ARE DESCRIBED IN THE REPORT LAST CITED.  SEE ID. AT 681,
689.  IN GENERAL THEY WERE ALIKE IN ALLOCATING FULL-CAR  FN18  SPACE TO
THE SERVICE IT PERFORMED.  BUT THEY DIFFERED WIDELY IN ALLOCATING
UNUSED SPACE IN SO-CALLED COMBINATION CARS AND MIXED CARS.  FN19
WITHOUT GOING INTO FURTHER DETAIL HERE, SUFFICE IT TO SAY THAT PLAN 3
ALLOCATED THE LARGEST AMOUNTS OF UNUSED SPACE TO PASSENGER AND EXPRESS
SERVICE AND CORRESPONDINGLY THE SMALLEST AMOUNT TO MAIL SERVICE; PLAN
2, MORE NEARLY APPROXIMATING THE CARRIER'S PROPOSALS, WORKED OUT IN
INVERSE PROPORTIONS; AND PLAN 1 LAY BETWEEN THE TWO.  SEE 144 I.C.C. AT
681, 689. 

THE DIFFERENCES IN RESULTS FOLLOWING FROM USE OF THE VARIOUS PLANS
WERE HIGHLY SIGNIFICANT, MAKING THE DIFFERENCE BETWEEN NET RETURN AND
NET DEFICIT, OR DEFICITS OF DIFFERENT SIZES, DEPENDING UPON WHICH PLAN
WAS USED.  FN20  IN EACH PLAN AFTER THE ULTIMATE SPACE RATIOS WERE
DETERMINED BY COMPLICATED STATISTICAL STUDIES, THEY WERE APPLIED TO
TOTAL PASSENGER-TRAIN SERVICE EXPENSE TO DETERMINE EXPENSE RATIOS FOR
THE THREE CONSTITUENT SERVICES.  AND THOSE EXPENSE RATIOS WERE ALSO
USED TO APPORTION INVESTMENT IN ROAD AND EQUIPMENT ASSIGNED TO
PASSENGER-TRAIN SERVICE. 

THE COMMISSION REJECTED PLAN 3 BECAUSE, IT SAID, THAT PLAN HAD
DEPARTED FROM THE CAR-OPERATING UNIT WHICH IT HAD ADOPTED FOR MAKING
SPACE ALLOCATIONS.  144 I.C.C. 689-691.  WHILE NOT SPECIFICALLY
ELIMINATING PLAN 1 FROM CONSIDERATION FOR PURPOSES OF COMPARISON, THE
COMMISSION PRIMARILY RESTED ITS ALLOCATIONS OF SPACE FOR PURPOSES OF
TENTATIVE OR PRELIMINARY APPORTIONMENT OF COSTS AND CAPITAL ON PLAN 2. 
ID. AT 691. 

IN UTILIZING THE RATIOS DERIVED FROM USING PLAN 2, HOWEVER, THE
COMMISSION EXPRESSLY STATED: 

"IN CONNECTION WITH THE COST STUDIES UNDER ANY OF THE PLANS FOR
DIVIDING THE TRAIN SPACE, IT SHOULD BE BORNE IN MIND THAT IN
COMPUTATIONS OF THIS CHARACTER WHERE THE DIRECT ALLOCATIONS ARE
RELATIVELY SMALL AND THE GREAT BULK OF EXPENSES AND INVESTMENT ARE
NECESSARILY DIVIDED, SUBDIVIDED, APPORTIONED, AND REAPPORTIONED UPON
VARIOUS THEORIES AND ASSUMPTIONS, THE RESULTS CAN NOT BE ACCEPTED AS AN
ACCURATE ASCERTAINMENT OF THE COSTS OF SERVICE.  AT BEST, THEY ARE
APPROXIMATIONS TO BE GIVEN SUCH WEIGHT AS SEEMS PROPER IN VIEW OF ALL
THE CIRCUMSTANCES UNDER WHICH THEY HAVE BEEN OBTAINED AND THE THEORIES
UNDERLYING THE ASSUMPTIONS AND THE VARIOUS STEPS IN THE COMPUTATIONS." 
144 I.C.C. AT 691-692. 

THE COMMISSION PROCEEDED TO CONSIDER THE RESULTS OBTAINED BY THE USE
OF THE PLAN 2 FORMULA IN THE LIGHT OF OTHER CIRCUMSTANCES AND
CONSIDERATIONS DEEMED RELEVANT, INCLUDING COMPARISON WITH RESULTS
OBTAINED UPON THE BASIS OF THE TOTAL EQUATED 60-FOOT-CAR MILES (SEE 144
I.C.C. AT 692), THE FACT THAT THERE WAS NO SUCH INCENTIVE TO LIMIT THE
AMOUNT OF SPACE UTILIZED FOR PASSENGER, BAGGAGE AND EXPRESS SERVICES AS
EXISTED IN THE CASE OF MAIL SERVICE, ID. AT 693, AND OTHER FACTORS. 
THE COMMISSION THEN CONCLUDED: 

"GIVING CONSIDERATION TO ALL THE FIGURES BASED UPON THE RESPECTIVE
COST STUDIES; TO THE FACT THAT NONE OF THESE FIGURES EXCEPT THOSE IN
THE CARRIERS' EXHIBITS, INCLUDES ANY CHARGE AGAINST THE PASSENGER-TRAIN
SERVICE FOR ITS PROPORTION OF THE COST OF HANDLING NONREVENUE FREIGHT;
GIVING SPECIAL WEIGHT TO THE FIGURES BASED ON THE PLAN FOR THE DIVISION
OF TRAIN SPACE FOLLOWED IN THE ORIGINAL PROCEEDING AND SUBSEQUENT
REEXAMINATIONS; AND MAKING ALLOWANCE FOR WEAKNESSES OF THEORIES AND
METHODS, AN INCREASE OF 15 PER CENT IN MAIL REVENUES FOR THE CARRIERS
AS A WHOLE IN THIS GROUP IS JUSTIFIED."  144 I.C.C. AT 695. 

THIS INCREASE, VERY MUCH SMALLER THAN A USE OF THE RESULTS OBTAINED
BY UNQUALIFIED APPLICATION OF PLAN 2 WOULD HAVE PRODUCED, RESULTED IN
GENERAL RATES OF 14.5 CENTS PER MILE OF SERVICE IN A "15-FOOT APARTMENT
CAR" AND 4.5 CENTS PER MILE OF SERVICE IN A "3-FOOT CLOSED-POUCH
SERVICE SPACE."  THOSE RATES BECAME APPLICABLE TO THE GEORGIA & FLORIDA
RAILROAD, WERE ACCEPTED BY IT FROM 1928 TO 1931, AND ARE THE RATES NOW
IN QUESTION. 

IN THIS SUIT AND IN THE PRIOR PROCEEDINGS SINCE 1931, NO ATTACK HAS
BEEN MADE ON THE VALIDITY OF THESE RATES AS GENERAL RATES APPLICABLE TO
CLASS I CARRIERS.  BUT THE 1931 PROCEEDINGS CHALLENGED THEIR VALIDITY
AS APPLIED TO THIS PARTICULAR CARRIER.  THIS HAS BEEN THE BONE OF
CONTENTION THROUGHOUT THE SUBSEQUENT PHASES OF CONTROVERSY. 

WHEN IN 1931 THE CARRIER'S APPLICATION FOR REEXAMINATION WAS FILED,
THE COMMISSION BY ITS DIVISION 5 FIRST PROCEEDED TO MAKE A COST STUDY
OF THE RAILROAD'S INDIVIDUAL OPERATIONS, CONDUCTED ALONG THE SAME LINES
AS THE COST STUDIES IN ITS GENERAL RATE HEARINGS.  A TEST PERIOD OF 28
DAYS FROM SEPTEMBER 28 TO OCTOBER 25, 1931, WAS SELECTED FOR OBTAINING
SPACE AND OTHER DATA.  SPACE RATIOS WERE DETERMINED ON THE DATA
SECURED, APPLIED TO EXPENSES, AND THE RESULTING EXPENSE RATIOS USED TO
APPORTION INVESTMENT, ALL UNDER PLAN 2.  AFTER ADJUSTMENTS MADE TO
REFLECT THE YEAR'S OPERATIONS FOR 1931, THE PLAN 2 FORMULA WORKED OUT
TO SHOW A NET OPERATING DEFICIT FOR MAIL SERVICE OF $4,945, WHICH,
TOGETHER WITH A RETURN OF 5.75 PER CENT ON THE CAPITAL ALLOCATED BY THE
FORMULA TO MAIL SERVICE, BROUGHT THE CARRIER'S CLAIM FOR INCREASED
COMPENSATION FOR THAT YEAR TO $31,227.  192 I.C.C. 779, 781.  TO MEET
THIS, AN INCREASE OF 87.40 PER CENT WOULD HAVE BEEN NECESSARY. 

AS IN THE GENERAL RATE INVESTIGATIONS AND FOR THE SAME REASONS, THE
DIVISION WAS UNWILLING TO REST EXCLUSIVELY UPON THE RESULTS OBTAINED BY
THE COMPUTATIONS UNDER PLAN 2, AND WENT ON TO CONSIDER OTHER FACTORS
WHICH IT DEEMED RELEVANT IN DETERMINING THE FAIRNESS AND REASONABLENESS
OF THE RATES.  IT FOUND THAT OF THE THREE COMPONENT SERVICES IN
PASSENGER-TRAIN SERVICE, "THE MAIL SERVICE MAKES THE BEST SHOWING WITH
RESPECT TO REVENUE."  N21  THE DIVISION FURTHER POINTED OUT THAT IN THE
PERIOD 1929 TO 1931, MAIL REVENUES HAD BEEN MORE STABLE THAN REVENUES
FROM OTHER PASSENGER-TRAIN SERVICES, PASSENGER SERVICE PROPER HAVING
DECREASED 67 PER CENT, EXPRESS SERVICE 64 PER CENT, AND MAIL SERVICE 12
PER CENT.  CONSIDERATION ALSO WAS GIVEN TO THE SPECIAL FACTS SHOWN
RELATING TO USE OF UNUSED SPACE. 

POINTING OUT THAT THE CARRIER'S CLAIM WAS BASED ON THE SPECIAL COST
STUDY AND THE FACT THAT "BECAUSE OF ITS LOW TRAFFIC DENSITY AND LOW
EARNINGS PER MILE OF ROAD, IT IS NOT COMPARABLE WITH MANY CLASS I ROADS
WHICH RECEIVE THE SAME RATES OF PAY," THE DIVISION REITERATED THAT "THE
COST STUDY IS NOT CONSIDERED TO BE AN ACCURATE ASCERTAINMENT OF THE
ACTUAL COST OF SERVICE.  IT IS AN APPROXIMATION TO BE GIVEN SUCH WEIGHT
AS SEEMS PROPER IN VIEW OF ALL THE CIRCUMSTANCES.  SEE RAILWAY MAIL
PAY, SUPRA."  192 I.C.C. AT 783.  IT THEN CONCLUDED:    "THE COMPARISON
OF MAIL REVENUE WITH OTHER REVENUE RECEIVED FOR SERVICES IN PASSENGER
TRAIN OPERATIONS SHOWS THAT MAIL WITH RELATION TO THE OTHER SERVICES IS
BEARING ITS FAIR SHARE OF THE EXPENSES OF OPERATION AND IS CONTRIBUTING
RELATIVELY MORE THAN THE OTHER SERVICES FOR THE SPACE FURNISHED. 
APPLICANT RECEIVES THE SAME RATES AS THOSE RECEIVED BY OTHER ROADS FOR
THE SAME KIND OF SERVICE.  MANY OF THESE OTHER ROADS ARE, AS APPLICANT
POINTS OUT, ROADS WHICH ARE VERY MUCH LARGER AND WHICH HAVE GREATER
TRAFFIC AND LOWER UNIT OPERATING COSTS.  ON THE OTHER HAND MANY ARE IN
MUCH THE SAME SITUATION AS THE APPLICANT IN RESPECT OF PASSENGER-TRAIN
OPERATIONS.  THE DATA SUBMITTED FAIL TO JUSTIFY GIVING THE APPLICANT
RATES HIGHER THAN THOSE NOW PAID OTHER RAILWAY COMMON CARRIERS FOR LIKE
SERVICE. 

"WE FIND THAT THE RATES OF PAY NOW RECEIVED BY APPLICANT FOR THE
TRANSPORTATION OF MAIL, ESTABLISHED IN RAILWAY MAIL PAY, 144 I.C.C.
675, FOR RAILROADS OVER 100 MILES IN LENGTH, ARE FAIR AND REASONABLE. 
THE APPLICATION FOR INCREASED COMPENSATION IS DENIED."  IBID. 

WHEN THE CAUSE WAS RETURNED TO THE COMMISSION BY THE GEORGIA DISTRICT
COURT IN 1935, THE FULL COMMISSION REOPENED THE PROCEEDING AND HELD A
FURTHER HEARING AT WHICH FURTHER EVIDENCE WAS RECEIVED.  IN REMANDING
THE CAUSE THE DISTRICT COURT HAD STRESSED THE COMPUTED FINDING UNDER
PLAN 2 THAT "THE DISTRIBUTION OF EXPENSE UPON THE SPACE RATIOS SHOWS
THAT THE OPERATING RATIO FOR MAIL SERVICE WAS 102.79"  FN22  OR, AS THE
COURT ADDED, "THAT FOR EVERY DOLLAR APPLICANTS RECEIVED FOR
TRANSPORTING MAILS THEY EXPENDED ONE DOLLAR AND 2.79 CENTS."  THE COURT
THEN ASSERTED THAT OTHER CONSIDERATIONS TAKEN INTO ACCOUNT BY DIVISION
5 "DO NOT REFUTE OR IMPAIR THE FACT THAT THE COMPENSATION ALLOWED THIS
RAILROAD FOR THE TRANSPORTATION OF MAIL DOES NOT EQUAL THE COST OF SO
DOING." 

COUNSEL FOR THE CARRIER STRESSED THIS BEFORE THE COMMISSION AS "AN
ADJUDICATION" THAT THE PREVIOUS RATES OF PAY WERE "TOTALLY
INADEQUATE."  BUT THE COMMISSION REJECTED THE APPARENT DISTRICT COURT
INFERENCE THAT ABANDONMENT OF MAIL SERVICE WOULD SAVE THE CARRIER
MONEY: "CONSIDERING THE CHARACTER OF THE EXPENSES INCLUDED IN THE STUDY
IT IS CLEAR THAT NO SUCH SAVING COULD BE MADE.  THE IMPORTANCE OF THE
OPERATING-RATIO FIGURE HAS BEEN OVEREMPHASIZED.  RELATIVE COSTS DERIVED
FROM A SERIES OF STUDIES OF EXPENDITURES FOR OPERATIONS COMMON TO A
NUMBER OF SERVICES CANNOT BE CONVERTED INTO ABSOLUTE COSTS BY USING A
SINGLE-FIGURE RELATION DERIVED FROM SUCH STUDIES."  214 I.C.C. AT 69. 

THE COMMISSION THEN AGAIN REPEATED ITS INSISTENCE THAT COST COMPUTED
UNDER SUCH A FORMULA AS PLAN 2 "IS A HYPOTHETICAL COST AND NOT AN
ACTUAL COST," IBID.; THAT IN OTHER MAIL-PAY PROCEEDINGS CONSIDERATION
HAD BEEN GIVEN TO OTHER FACTORS; FN23  AND, AGAIN TAKING SUCH FACTORS
INTO ACCOUNT, CONCLUDED UPON THE AUGMENTED RECORD THAT THE RATES THEN
APPLICABLE TO THE CARRIER WERE FAIR AND REASONABLE.  214 I.C.C. AT 70
76. 

ON RETURN OF THE CAUSE, THE DISTRICT COURT DISCLAIMED ENTERTAINING THE
VIEW "THAT THE HYPOTHETICAL COST IS 'NECESSARILY CONCLUSIVE.'"  RATHER,
THE COURT SAID, "IT IS MERELY THE FAIREST METHOD THAT HAS BEEN
DEVISED."  IT HELD INAPPLICABLE TO THE CARRIER THE CONSIDERATIONS
UTILIZED BY THE COMMISSION TO QUALIFY THE RESULTS COMPUTED BY THE COST
FORMULA, SUCH AS "COMPARISONS WITH COMPENSATION RECEIVED FROM OTHER
SERVICES IN PASSENGER TRAIN CARS"; AND "COMPARISONS PER CAR-MILE AND
PER CAR-FOOT MILE OF THE COMPUTED COST OF MAIL SERVICE AND THE REVENUE
FROM AUTHORIZED MAIL SERVICE WITH THE COMPUTED COST OF CORRESPONDING
UNITS IN PASSENGER-TRAIN SERVICE AS A WHOLE."  THE COURT ACCORDINGLY
AGAIN FOUND THE COMMISSION'S ORDER UNLAWFUL AND REMANDED THE CAUSE TO
IT A SECOND TIME FOR FURTHER PROCEEDINGS. 

IT IS OBVIOUS, FROM THE FOREGOING ACCOUNT, THAT THE BASIC DIFFERENCE
BETWEEN THE COMMISSION AND THE DISTRICT COURT LAY IN WHETHER THE
COMMISSION'S STATISTICAL AND MATHEMATICAL COMPUTATIONS UNDER PLAN 2
ALONE SHOULD BE TAKEN AS DETERMINATIVE OF COSTS AND THUS OF FAIR AND
REASONABLE RATES  FN24 OR WHETHER THOSE COMPUTATIONS WERE RIGHTLY TAKEN
BY THE COMMISSION AS MERELY TENTATIVE ESTIMATES OR APPROXIMATIONS,
APPLICABLE IN THE INITIAL STAGE OF RATE DETERMINATION, BUT SUBJECT TO
QUALIFICATION BY COMPARISON WITH RESULTS OBTAINED UNDER OTHER PLANS
AND, IN THE FINAL STAGE, BY CONSIDERATION OF OTHER FACTORS FOUND
PERTINENT IN THE COMMISSION'S JUDGMENT. 

THIS IS EXACTLY THE QUESTION WHICH WAS CRUCIAL IN THE JUDGMENT
RENDERED BY THE COURT OF CLAIMS.  IN ITS OPINION, MUCH MORE EXTENDED
THAN EITHER OF THOSE RENDERED BY THE DISTRICT COURT, IT SAID: 

"UNDER FINDING 16 HEREIN, IT IS SHOWN THAT THE INTERSTATE COMMERCE
COMMISSION FOUND AND DETERMINED THAT PLAINTIFF WOULD REQUIRE AN
INCREASE IN ITS MAIL REVENUE OF 87.4% IN ORDER TO SECURE FOR ITSELF,
UNDER PLAN 2 ADOPTED BY THE COMMISSION, A RETURN OF 5.75% THERETOFORE
FIXED BY THE COMMISSION, ON ITS INVESTMENTS IN ROAD AND EQUIPMENT
ENGAGED IN MAIL TRAFFIC.  ...  THE COMMISSION HAS, BY ITS USE OF PLAN
NO. 2, ADJUDGED IT TO BE A FAIR AND REASONABLE BASIS.  AND OUT OF THAT
BASIS THERE HAS BEEN ASCERTAINED, BY FORMULAE PRESCRIBED BY THE
COMMISSION, WHAT IS THE FAIR AND REASONABLE COMPENSATION FOR
PLAINTIFFS' CARRIAGE OF THE MAILS BEGINNING THE FIRST OF APRIL 1931,
AND ENDING AT THE CLOSE OF FEBRUARY 1938.  FAIR AND REASONABLE
COMPENSATION CANNOT BE BOTH A DEFICIT AND THE AMOUNT OF $186,707.06 SO
FOUND.  IT IS, WE CONCLUDE, THE LATTER."  110 CT. CL. AT 366-367, 369. 

THE COURT THEN QUOTED THE COMMISSION'S CONCLUDING LANGUAGE IN 192
I.C.C. 779, 783, SET OUT ABOVE IN THE TEXT, AND SAID: 

"WE ARE OF THE OPINION THAT THE 'APPROXIMATION' (PLAN 2) SHOULD BE
GIVEN GREATER WEIGHT THAN THE COMMISSION AFFORDS IT, BECAUSE, AS WE
HAVE SAID, AND THE COMMISSION IN EFFECT ADMITS, THERE IS NO SUCH THING
AS CERTAINTY IN ACTUAL COST.  APPROXIMATE, OR AS IT IS CALLED,
'COMPUTED' COST MUST BE RELIED UPON, AND AS A MATTER OF LAW MUST BE
DECISIVE.  THERE IS NO ALTERNATIVE, AT LEAST NO SATISFYING
ALTERNATIVE.  OF COURSE THERE WERE OTHER METHODS OF COMPUTING COST, BUT
THE COMMISSION, PUT TO THE CHOICE, SELECTED PLAN NO. 2."  110 CT. CL.
AT 370. 

THEN FOLLOWED REJECTION OF THE FACTORS CONSIDERED BY THE COMMISSION
IN QUALIFYING THE COMPUTATIONS OBTAINED UNDER PLAN 2 AS "NOT CONVINCING
OR EVEN PERSUASIVE."  ID. AT 372.  ACCORDING TO THE COURT:  "IT WAS FOR
THE COMMISSION TO DEMONSTRATE THAT THE GENERAL RATES PRESCRIBED GAVE
THE PLAINTIFFS A FAIR AND REASONABLE RETURN.  THIS THE COMMISSION
FAILED TO DO.  MORE THAN THAT, THE COMMISSION HAS BY ITS FINDINGS,
USING ITS ADOPTED PLAN AND ITS OWN METHODS AS APPLIED TO PLAINTIFFS'
CIRCUMSTANCES, PROVED THAT PLAINTIFFS HAVE BEEN UNDERPAID $186,707.06
IN FAIR AND REASONABLE COMPENSATION FOR THE PERIOD IN QUESTION." 
IBID. 

IN VIEW OF THESE GROUNDINGS, THE COURT'S DECISION TIED THE COMMISSION
EXCLUSIVELY AND FINALLY TO THE RESULTS WHICH IT HAD OBTAINED BY USING
PLAN 2 IN THE INITIAL STAGE OF THE RATE-MAKING PROCESS.  IT REJECTED
THE COMMISSION'S REPEATED ASSERTION, IN BOTH THE GENERAL RATE HEARINGS
AND THE SPECIAL HEARINGS GIVEN THIS CARRIER, THAT THE COST STUDIES
UNDER PLAN 2(OR ANY OTHER SUCH PLAN) COULD NOT BE TAKEN AS AN ACCURATE
ASCERTAINMENT OF ACTUAL COSTS OF SERVICE AND SHOULD BE GIVEN ONLY SUCH
WEIGHT AS SEEMED PROPER IN VIEW OF ALL THE CIRCUMSTANCES.  THE COURT
LIKEWISE REJECTED AS "NOT CONVINCING OR EVEN PERSUASIVE" THE NUMEROUS
FACTORS THE COMMISSION CONSIDERED NOT ONLY PROPER, BUT HIGHLY IMPORTANT
TO BE TAKEN INTO ACCOUNT IN QUALIFYING THE COMPUTED RESULTS UNDER PLAN
2. 

IN DOING ALL THIS THE COURT SUBSTITUTED ITS OWN JUDGMENT FOR THE
COMMISSION'S CONCERNING THE RELEVANCE OF FACTS TO BE TAKEN INTO ACCOUNT
IN FIXING A FAIR AND REASONABLE RATE; THE WEIGHT TO BE GIVEN TO THOSE
FACTS, INCLUDING THE COMPUTATIONS UNDER PLAN 2 AS WELL AS THE OTHER
FACTS UTILIZED TO CHECK AND QUALIFY THEM; AND THE BURDEN OF PROOF ON
THE WHOLE CASE. 

IN THE LATTER RESPECT THE COURT DISREGARDED NOT ONLY THE GENERAL RULE
WHICH GIVES ADMINISTRATIVE DETERMINATIONS IN SUCH MATTERS PRESUMPTIVE
WEIGHT,  FN25  BUT ALSO THE EFFECT OF THE STATUTE ITSELF.  AS HAS BEEN
NOTED THE RAILWAY MAIL PAY ACT EXPRESSLY AUTHORIZED THE COMMISSION TO
CLASSIFY CARRIERS AND "WHERE JUST AND EQUITABLE, FIX GENERAL RATES
APPLICABLE TO ALL CARRIERS IN THE SAME CLASSIFICATION."  39 U.S.C. SEC.
549.  WHILE THIS GENERAL AUTHORITY DID NOT PRECLUDE EXAMINATION OF THE
GENERAL RATE'S APPLICATION TO A PARTICULAR CARRIER, IT GAVE THAT RATE
PRIMA FACIE VALIDITY AS TO ALL WITHIN THE CLASSIFICATION.  INDEED,
CONTRARY TO THE COURT'S HOLDING THAT THE COMMISSION COULD NOT CONSIDER
RATES PAID TO OTHER CARRIERS OR THEIR EFFECTS, THE STATUTE REQUIRED THE
COMMISSION TO TAKE THOSE RATES INTO ACCOUNT.  IBID.  THE BURDEN OF
PROOF WAS THEREFORE CLEARLY UPON THE CARRIER TO SHOW THAT THE GENERAL
RATE WAS UNFAIR AND UNREASONABLE AS APPLIED TO IT AND NOT, AS THE COURT
HELD, UPON THE COMMISSION TO SHOW THAT THAT RATE AS APPLIED WAS FAIR
AND REASONABLE. 

WE CANNOT SAY THAT THE COMMISSION ACTED ARBITRARILY OR UNREASONABLY
IN RESPECT TO ITS USE OF PLAN 2 OR OF THE FACTORS USED IN CHECKING THE
PLAN'S RESULTS AND QUALIFYING THEM.  CONTRARY TO THE COURT'S
CONCLUSION, PLAN 2 WAS NEVER INTENDED OR ACCEPTED BY THE COMMISSION AS
FURNISHING A FINAL AND EXCLUSIVE BASIS FOR FIXING RATES.  CERTAINLY IT
WAS NOT ARBITRARY OR UNREASONABLE TO USE SUCH A PLAN, WHICH PROCEEDED
STEP BY STEP UPON "VARIOUS THEORIES AND ASSUMPTIONS," AS MERELY A
PRELIMINARY AND WHOLLY TENTATIVE STEP IN THE PROCESS OF RATE MAKING; OR
TO CHECK ITS RESULTS AGAINST THOSE PRODUCED BY OTHER SUCH PLANS
DIFFERING IN DETAIL OF THEORIES AND ASSUMPTIONS EMPLOYED; OR TO QUALIFY
THE COMPUTATIONS BY THE FACTORS WHICH THE COMMISSION TOOK INTO ACCOUNT
IN THE FINAL STAGES OF JUDGMENT. 

IN HOLDING THE INITIAL FORMULA CONCLUSIVE, THE COURT HAS DISREGARDED
THE COMMISSION'S INFORMED CONTRARY JUDGMENT IN MATTERS COMMITTED TO ITS
SPECIAL COMPETENCE.  THIS THE COURT DID IN THE GUISE OF "GIVING EFFECT"
TO THE COMMISSION'S "FINDING," NAMELY, ITS PRELIMINARY COMPUTATIONS
UNDER PLAN 2, AND BY DISREGARDING ALL ELSE THE COMMISSION TOOK INTO
ACCOUNT AS "ERROR OF LAW."  THE "FINDING" WAS IN FACT NO FINDING AT
ALL, BUT ONLY A PRELIMINARY FIGURE.  AND THE MATTERS THROWN OUT AS
"ERROR OF LAW" WERE MATTERS OF FACT AND EXPERT JUDGMENT, NOT LEGAL
QUESTIONS. 

WE THINK THE CARRIER HAS NOT SUSTAINED ITS BURDEN OF SHOWING THAT THE
COMMISSION ACTED ARBITRARILY OR UNREASONABLY AND WE CONCLUDE THAT THE
GENERAL RATES FIXED BY ITS 1928 ORDER ARE, UPON THE RECORD MADE, FAIR
AND REASONABLE AS APPLIED TO THE GEORGIA & FLORIDA RAILROAD.  BUT FOR
THE MATTER OF JURISDICTION, THIS DETERMINATION WOULD END THE CASE.  BUT
THE QUESTION OF JURISDICTION REMAINS AND IS IMPORTANT.  MOREOVER, THE
DETERMINATION ON THE MERITS IS RELEVANT TO ITS DISPOSITION. 

                                  V. 

IN SUSTAINING ITS JURISDICTION, THE COURT OF CLAIMS STATED:  "AS THE
SUPREME COURT HAS SAID, THIS COURT HAS JURISDICTION TO RENDER JUDGMENT
OF RECOVERY FOR AN AMOUNT SUFFICIENT TO CONSTITUTE FAIR AND REASONABLE
COMPENSATION UNDER THE FACTS AS FOUND BY THE COMMISSION, UNPAID THROUGH
FAILURE OF THE COMMISSION, BECAUSE OF AN ERROR OF LAW, TO ORDER PAYMENT
THEREOF."  110 CT. CL. AT 366.  THAT LANGUAGE ON ITS FACE SEEMS FULLY
IN ACCORD WITH THE GRIFFIN PRONOUNCEMENT.  AS WILL BE RECALLED, IT WAS:
"IF THE COMMISSION MAKES THE APPROPRIATE FINDING OF REASONABLE
COMPENSATION BUT FAILS, BECAUSE OF AN ALLEGED ERROR OF LAW, TO ORDER
PAYMENT OF THE FULL AMOUNT WHICH THE RAILROAD BELIEVES IS PAYABLE UNDER
THE FINDING, THE COURT OF CLAIMS HAS JURISDICTION OF AN ACTION FOR THE
BALANCE, AS THE CLAIM ASSERTED IS ONE FOUNDED UPON A LAW OF CONGRESS." 

ON ITS FACE THIS LANGUAGE DOES NOT AUTHORIZE REVISION OF THE
COMMISSION'S FINDINGS OR OF THE RATE IT PRESCRIBES BY THE COURT OF
CLAIMS.  THE CLAIM OF WHICH IT IS SAID TO HAVE JURISDICTION IS ONE FOR
"THE FULL AMOUNT WHICH THE RAILROAD BELIEVES IS PAYABLE UNDER THE
FINDING," SOME PART OF WHICH THE COMMISSION HAS FAILED TO ORDER PAID BY
REASON OF AN ERROR OF LAW.  THERE WAS NO INTIMATION OF AUTHORITY FOR
THE COURT TO REEXAMINE THE FACTS OR TO SUBSTITUTE ITS OWN JUDGMENT
CONCERNING THE FACTS TO BE CONSIDERED OR THE WEIGHT TO BE GIVEN THEM IN
DETERMINING THE RATE.  TRUE, THE WORDING READS "APPROPRIATE" FINDING. 
BUT WE CANNOT CONSTRUE THAT SINGLE WORD TO MEAN THAT THIS COURT
INTENDED THE COURT OF CLAIMS TO REOPEN THE ENTIRE QUESTION OF THE
ORDER'S APPROPRIATENESS AND SUBSTITUTE ITS OWN JUDGMENT, EITHER ON THE
RECORD MADE BEFORE THE COMMISSION OR ON INDEPENDENT EVIDENCE, FOR THE
COMMISSION'S FINDINGS AND CONCLUSIONS ON THAT QUESTION. 

SUCH A CONSTRUCTION IS SUSTAINED BY NONE OF THE CASES CITED IN THE
GRIFFIN OPINION TO SUPPORT THE STATEMENT  FN26  AND IS DIRECTLY
CONTRARY TO PREVIOUS DECISIONS BY THE COURT OF CLAIMS WITH REFERENCE TO
ITS POWER TO REVIEW SUCH ORDERS OF THE COMMISSION.  FN27  MOREOVER, TO
CONCEIVE THE GRIFFIN STATEMENT AS SANCTIONING THE BROAD AUTHORITY
ASSUMED BY THE COURT WOULD BE, FOR REASONS ALREADY STATED, TO GIVE IT
BY IMPLICATION A JURISDICTION WHICH CONGRESS HAS NEVER EXPRESSLY
CONFERRED. 

WE THINK THE GRIFFIN LANGUAGE CONTEMPLATED A MUCH NARROWER
JURISDICTION.  THE PURPOSE WAS, IN OUR JUDGMENT, TO INDICATE THAT
REVIEW MIGHT BE HAD OF THE CARRIER'S CLAIM WHENEVER IT DOES NOT RUN IN
THE TEETH OF THE COMMISSION'S FINDINGS OR ORDER OR SEEK REVISION OF
THAT ORDER.  IN OTHER WORDS, THE CLAIM MUST BE ONE CONSISTENT WITH THE
COMMISSION'S ORDER FIXING THE RATE, BUT ASSERTING UNDERPAYMENT BY
REASON OF SOME ERROR OF LAW IN ITS APPLICATION WHICH WOULD NOT REQUIRE
THE COMMISSION'S FURTHER CONSIDERATION FOR FIXING A NEW RATE.  THIS
VIEW IS CONSISTENT WITH ALL OF THE AUTHORITIES CITED IN GRIFFIN TO
SUSTAIN THE FIRST CATEGORY OF JURISDICTION SAID TO RESIDE IN THE COURT
OF CLAIMS.  IT IS THE VIEW WE THINK THIS COURT MEANT TO BE TAKEN.    AS
WE HAVE POINTED OUT, HOWEVER, HERE THE COURT OF CLAIMS, THOUGH
ASSERTING THE CONTRARY, HAS NOT "GIVEN EFFECT" TO THE RATE ORDER, BUT
IN THE GUISE OF FINDING "ERROR OF LAW" HAS SET IT ASIDE, TOGETHER WITH
THE COMMISSION'S FINDINGS; HAS SUBSTITUTED "FINDINGS" OF ITS OWN; AND
HAS MADE, IN EFFECT, A NEW ORDER BY ITS JUDGMENT.  IT FOLLOWS, IN OUR
VIEW OF WHAT WAS INTENDED BY THE GRIFFIN STATEMENT, THAT THE COURT OF
CLAIMS HAD NO JURISDICTION IN THIS CASE, SINCE IT INVOLVES NO SUCH
"ERROR OF LAW" AS THAT STATEMENT CONTEMPLATED, BUT RELATES ONLY TO
QUESTIONS ESSENTIALLY OF FACT GOING TO THE ORDER'S APPROPRIATENESS ON
THE MERITS.  THE CASE IS WHOLLY UNLIKE MISSOURI PACIFIC R. CO. V.
UNITED STATES, 271 U.S. 603; UNITED STATES V. NEW YORK CENTRAL R. CO.,
279 U.S. 73, AND OTHER CASES CITED IN THE GRIFFIN OPINION. 

THE SAME RESULT WOULD FOLLOW IF, CONTRARY TO THE COURT OF CLAIMS'
DISCLAIMER, THE SUIT COULD BE REGARDED AS ONE FOR JUST COMPENSATION
UNDER THE FIFTH AMENDMENT, AS RESPONDENT INSISTS IT WAS.  FOR THE
REASONS ALREADY STATED, RESPONDENT HAS NOT SHOWN THAT THE COMMISSION'S
ORDER WAS CONFISCATORY IN ITS EFFECTS.  MOREOVER, JURISDICTIONALLY
SPEAKING, NONE OF THE CASES CITED BY THE GRIFFIN OPINION TO SUSTAIN THE
SECOND CATEGORY  FN28  OF JURISDICTION IN THE COURT OF CLAIMS INVOLVED
ANY PROBLEM OF REVIEWING RATE ORDERS OF THE INTERSTATE COMMERCE
COMMISSION.  ALL RELATED TO QUESTIONS OF COMPENSATION RESULTING FROM
TAKINGS OF PRIVATE PROPERTY FOR PUBLIC USE, IN WHICH THE ONLY QUESTIONS
DETERMINED WERE THE VALUE OF THE PROPERTY TAKEN OR THAT VALUE COUPLED
WITH THE RIGHT TO INTEREST ON THE AWARD.  FN29  WHILE RESPONDENT
CONTENDS THAT THE EFFECT OF THE COMMISSION'S ORDER HERE HAS BEEN TO
DEPRIVE IT OF ITS PROPERTY WITHOUT JUST COMPENSATION AND JUSTIFIES THE
COURT OF CLAIMS' AWARD ON THAT BASIS, THE COURT DID NOT SO GROUND ITS
DECISION AND, AS WE HAVE SAID, RESPONDENT HAS NOT MADE OUT ANY SUCH
CASE. 

MOREOVER, IN VIEW OF THE FACT THAT THE COURT OF CLAIMS HAS
JURISDICTION ONLY TO RENDER A MONEY JUDGMENT AGAINST THE UNITED STATES
AND NONE TO REMAND TO THE COMMISSION FOR FURTHER CONSIDERATION A RATE
ORDER WHICH IT MIGHT FIND CONFISCATORY, WE DO NOT THINK THE GRIFFIN
RULING CAN BE TAKEN TO HAVE CONTEMPLATED THAT UPON SUCH A FINDING, MADE
AFTER REVIEWING THE COMMISSION'S ORDER ON THE MERITS, THE COURT OF
CLAIMS COULD FORECLOSE THE COMMISSION FROM FURTHER CONSIDERATION OF THE
ORDER AND RENDER FINAL JUDGMENT FOR THE AMOUNT BY WHICH IT HAD FOUND
THE ORDER CONFISCATORY.  THIS NOT ONLY WOULD SHORT-CIRCUIT THE
COMMISSION IN THE RATE-MAKING PROCESS, BUT WOULD INVOLVE SUBSTITUTING
THE COURT'S JUDGMENT FOR THE COMMISSION'S AS TO THE AMOUNT OF ANY NEW
RATE WHICH MIGHT BE FIXED.  CONSEQUENTLY, WE DO NOT THINK THIS CASE
FALLS WITHIN EITHER CATEGORY OF JURISDICTION INDICATED BY THE GRIFFIN
STATEMENT AS POSSIBLY AVAILABLE IN THE COURT OF CLAIMS. 

THERE REMAINS THE THIRD REMEDY SUGGESTED IN THE GRIFFIN OPINION,
NAMELY, BY SUIT IN THE DISTRICT COURT AS ONE AT LAW OR IN EQUITY
"ARISING UNDER THE POSTAL LAWS," FORMER 28 U.S.C. SEC. 41(6)(CF.
PRESENT 28 U.S.C. SEC. 1339), WHERE THE COMMISSION IS ALLEGED TO HAVE
ACTED IN EXCESS OF ITS AUTHORITY, OR OTHERWISE ILLEGALLY.  STRICTLY
SPEAKING, IT IS NOT NECESSARY TO CONSIDER WHETHER THIS REMEDY WOULD
HAVE BEEN AVAILABLE TO RESPONDENT, SINCE IT HAS NOT BEEN FOLLOWED. 

HOWEVER, NOTWITHSTANDING SOME OBVIOUS DIFFICULTIES IN MAKING DISTRICT
COURT JURISDICTION AVAILABLE FOR REVIEW IN SUCH A PROCEEDING AS THIS,
FN30  THAT JURISDICTION POSSESSES ONE OUTSTANDING ADVANTAGE OVER REVIEW
IN THE COURT OF CLAIMS.  IT IS THAT THE DISTRICT COURTS ARE NOT
CONFINED, AS IS THE COURT OF CLAIMS, TO RENDERING A MONEY JUDGMENT BY
WAY OF RELIEF AGAINST THE UNITED STATES.  UNDER THEIR GENERAL EQUITY
JURISDICTION THEY WOULD HAVE POWER, ON FINDING A RATE ORDER INVALID,
WHETHER AS CONFISCATORY OR AS NOT COMPLYING WITH THE STATUTE, TO REMAND
THE CAUSE TO THE COMMISSION FOR FURTHER PROCEEDINGS.  IN THIS RESPECT
THE REVIEW AFFORDED AND THE RELIEF GIVEN WOULD MORE NEARLY APPROXIMATE
THAT GIVEN BY THE URGENT DEFICIENCIES ACT IN SIMILAR CASES REVIEWABLE
UNDER ITS TERMS. 

SINCE THE GRIFFIN CASE WAS DECIDED, CONGRESS HAS ADOPTED THE SO
CALLED ADMINISTRATIVE PROCEDURE ACT,  FN31  WHICH BY SEC. 10, ENTITLED
"JUDICIAL REVIEW," PROVIDES: 

"EXCEPT SO FAR AS (1) STATUTES PRECLUDE JUDICIAL REVIEW OR (2) AGENCY
ACTION IS BY LAW COMMITTED TO AGENCY DISCRETION - 

"(A)  ...  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)  ... 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.  ...  "  5
U.S.C. SEC. 1009. 

THIS PROVISION, WE THINK, ADDS FORCE TO THE SUGGESTION MADE IN THE
GRIFFIN CASE CONCERNING THE JURISDICTION OF THE DISTRICT COURTS IN
RELATION TO REVIEW OF RATE ORDERS LIKE THOSE NOW IN QUESTION.  SUCH
REVIEW UNDER THE EQUITY OR DECLARATORY JURISDICTION OF THOSE COURTS
WOULD SEEM TO AFFORD A REMEDY CONSONANT WITH SEC. 10 OF THE
ADMINISTRATIVE PROCEDURE ACT AND ALSO MORE NEARLY LIKE THAT AFFORDED BY
THE URGENT DEFICIENCIES ACT, THOUGH WITHOUT ITS EXPEDITING FEATURES. 
THE RELIEF AFFORDED, UNLIKE THAT REQUIRED IN THE COURT OF CLAIMS, COULD
THUS BE LIMITED TO SETTING ASIDE OR ENJOINING THE COMMISSION'S ORDER
AND REMANDING THE CAUSE TO IT FOR FURTHER CONSIDERATION, AS IS DONE IN
LIKE CASES REVIEWABLE BY THREE-JUDGE COURTS.  CONSISTENTLY WITH THAT
JURISDICTION ALSO THE REVIEW COULD BE CONFINED TO THE RECORD MADE
BEFORE THE COMMISSION  FN32  RATHER THAN ONE COMPILED BY INDEPENDENT
EVIDENCE NOT PRESENTED TO THE COMMISSION OR CONSIDERED BY IT. 

THESE SUGGESTIONS, AS WE HAVE SAID, ARE NOT STRICTLY NECESSARY FOR
DISPOSITION OF THIS CASE.  BUT WE THINK THEM APPROPRIATE IN ORDER TO
PREVENT A RECURRENCE IN THE FUTURE AND IN OTHER CASES OF LONG AND
CHIEFLY JURISDICTIONAL LITIGATION SUCH AS THIS CAUSE HAS INVOLVED WITH
PROFIT TO NO ONE. 

THE JUDGMENT IS REVERSED, AND THE CAUSE IS REMANDED TO THE COURT OF
CLAIMS WITH INSTRUCTIONS TO DISMISS IT.  REVERSED AND REMANDED. 

FN1  THE PRESENT RECEIVER, ALFRED W. JONES, WAS SUBSTITUTED AS
RESPONDENT IN NO. 135 BY ORDER OF THIS COURT DATED DECEMBER 6, 1948. 
335 U.S. 883.  HE IS REFERRED TO AS "RESPONDENT" IN THIS OPINION,
ALTHOUGH HE IS ALSO THE PETITIONER IN NO. 198. 

FN2  FULL RAILWAY POST-OFFICE CAR SERVICE INVOLVES SERVICE IN WHICH
AN ENTIRE CAR OF SPECIFIED LENGTH AND EQUIPMENT IS AUTHORIZED. 
APARTMENT-CAR SERVICE INVOLVES AUTHORIZED USE OF THIRTY- OR FIFTEEN
FOOT APARTMENTS PARTITIONED OFF FROM THE REMAINING PORTION OF THE CAR. 
CLOSED-POUCH SERVICE INVOLVES HANDLING BY RAILROAD EMPLOYEES WHERE FULL
OR APARTMENT RAILWAY POST-OFFICE CARS ARE NOT AUTHORIZED AND WHERE
SPACE AUTHORIZATIONS ARE FOR UNITS OF SEVEN FEET AND THREE FEET IN
SPACE, UNENCLOSED, ON BOTH SIDES OF THE CAR. 

FN3  SEE NOTE 6. 

FN4  THE AMENDED PETITION AND THE BRIEF ASSIGN BOTH GROUNDS. 
NEVERTHELESS, RESPONDENT INSISTS THAT HIS CASE IS IN FACT GROUNDED UPON
THE CONSTITUTIONAL BASIS.  INDEED, SO STRONGLY DOES RESPONDENT INSIST
UPON THIS POINT OF VIEW THAT, WITHOUT CHALLENGING THE AWARD OR ITS
AMOUNT, EXCEPT FOR THE DISALLOWANCE OF INTEREST, HE HAS SOUGHT AND WE
GRANTED CERTIORARI IN NO. 198, IN EFFECT TO HAVE THE JUDGMENT OF THE
COURT OF CLAIMS GROUNDED SOLELY ON THE FIFTH AMENDMENT FOOTING AS THE
BASIS FOR ESTABLISHING HIS CLAIM OF ACCRUED INTEREST.  SEE NOTE 7
INFRA. 

FN5  AS HAS BEEN STATED, THE COURT OF CLAIMS, ACCEPTING JURISDICTION,
RENDERED JUDGMENT FOR THE RESPONDENT FOR $186,707.06.  ITS
DETERMINATION WAS BASED UPON THE VARIOUS REPORTS OF THE COMMISSION
ABOVE CITED, ALTHOUGH EVIDENCE WAS RECEIVED BY THE COURT'S COMMISSIONER
WHICH WAS NOT BEFOFE THE INTERSTATE COMMERCE COMMISSION.  HE MADE
EXTENSIVE SPECIAL FINDINGS OF FACT BASED IN PART UPON THIS EVIDENCE
WHICH WERE ADOPTED BY THE COURT AND FILED, TOGETHER WITH ITS OPINION. 
110 CT. CL. 330.  BOTH THE GOVERNMENT AND THE RESPONDENT APPLIED FOR
CERTIORARI AND BOTH PETITIONS WERE GRANTED.  SEE NOTE 4. 

FN6  THIS WAS IN BRIEF THAT CONGRESS COULD NOT BE ASSUMED TO HAVE
MADE THE EXTRAORDINARY REMEDY OF THE URGENT DEFICIENCIES ACT APPLICABLE
TO SUCH ORDERS AS THE ONE HERE INVOLVED, SINCE "THERE IS NO WIDE PUBLIC
INTEREST IN ITS SPEEDY DETERMINATION"; "NO DANGER OF TEMPORARILY
INTERRUPTING THE MAIL SERVICE THROUGH THE IMPROVIDENT ISSUE OF AN
INJUNCTION BY A SINGLE JUDGE"; AND "ONLY THE METHOD OR AMOUNT OF
PAYMENTS CURRENTLY TO BE MADE WOULD BE AFFECTED." 

FN7  THE OPINION, QUOTING THE COURT OF CLAIMS' LANGUAGE IN AN EARLIER
RAILWAY MAIL PAY CASE, NEW YORK CENTRAL R. CO. V. UNITED STATES, 65 CT.
CL. 115, 128-129, AFFIRMED 279 U.S. 73, STATED:  "'WE DO NOT THINK THE
PLAINTIFF CAN HAVE JUDGMENT FOR INTEREST ON THE DEFERRED PAYMENTS.  WE
ARE NOT DETERMINING JUST COMPENSATION BUT ARE GIVING EFFECT TO AN
AUTHORIZED ORDER OF THE INTERSTATE COMMERCE COMMISSION.  IN SUCH CASE
THE STATUTE FORBIDS THE ALLOWANCE OF INTEREST.  SEC. 177, JUDICIAL
CODE, AS AMENDED.'"  110 CT. CL. AT 373.  CF. NOTES 10 AND 29 INFRA. 

FN8  SEE NOTE 7. 

FN9  SEE THE CASES CITED AT NOTE 26 INFRA. 

FN10  CF. JACOBS V. UNITED STATES, 290 U.S. 13. 

FN11  SEE THE CASES CITED AT NOTE 27 INFRA. 

FN12  WHICH, AMONG OTHER THINGS, FORBID NON-DISTRICT OF COLUMBIA
COURTS CREATED PURSUANT TO THAT ARTICLE TO EXERCISE LEGISLATIVE
FUNCTIONS SUCH AS RATE MAKING.  CF. KELLER V. POTOMAC ELECTRIC CO., 261
U.S. 428; POSTUM CEREAL CO. V. CALIFORNIA FIG NUT CO., 272 U.S. 693;
PRENTIS V. ATLANTIC COAST LINE, 211 U.S. 210, 226. 

FN13  TEXAS & PACIFIC R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426;
CF. ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, 139; MYERS V.
BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41.  SEE 51 HARV. L. REV. 1251. 

FN14  UNITED STATES V. ILLINOIS CENTRAL R. CO., 291 U.S. 457, 463
464(AND CF. CONCURRING OPINION, ID. AT 465); MYERS V. BETHLEHEM
SHIPBUILDING CORP., 303 U.S. 41, 50-52.  SEE BERGER, EXHAUSTION OF
ADMINISTRATIVE REMEDIES, 48 YALE L.J. 981; 44 MICH. L. REV. 1035. 

FN15  SEE THE AUTHORITIES CITED AT NOTE 27 INFRA. 

FN16  THE OPINIONS OF THE THREE-JUDGE COURT RENDERED WHEN THIS
CONTROVERSY WAS TWICE BEFORE IT ARE NOT REPORTED. 

FN17  CLASS I INCLUDED ALL RAILROADS OF MORE THAN 100 MILES IN
LENGTH.  AT THE GENERAL RATE HEARINGS THE GEORGIA & FLORIDA RAILROAD
WAS REPRESENTED BY REPRESENTATIVES OF ANOTHER CLASS AND SEEMS TO HAVE
CONTENDED THAT IT SHOULD BE CLASSIFIED WITH OR TREATED AS THOUGH IT
WERE A MEMBER OF THAT CLASS.  BUT NO QUESTION CONCERNING ITS
CLASSIFICATION HAS BEEN MADE IN THE PROCEEDINGS BEGUN IN 1931 OR
AFTERWARD. 

FN18  SEE NOTE 2. 

FN19  COMBINATION CARS INCLUDE SPACE SEPARATED BY PARTITIONS INTO
"APARTMENTS," CF. NOTE 2, WITH EACH APARTMENT DEVOTED EXCLUSIVELY TO A
DIFFERENT USE.  MIXED CARS CONTAIN NO PARTITIONS OR "APARTMENTS," BUT
ARE USED FOR SEVERAL DIFFERENT SERVICES, E.G., BAGGAGE, EXPRESS AND
MAIL-POUCH SERVICES.  SEE NOTE 2; 144 I.C.C. AT 679. 

FN20  SEE RAILWAY MAIL PAY, 144 I.C.C. AT 688-689.  PLAN 3, THE
COMMISSION SAID IN THAT GENERAL RATE PROCEEDING, WOULD RESULT IN A "NET
RAILWAY OPERATING INCOME FROM MAIL OF $18,759,056 INSTEAD OF A DEFICIT
OF $1,104,744 UNDER PLAN 2, AND A NET INCOME OF $12,844,643 UNDER PLAN
1," ID. AT 689, GIVING A NET RETURN UNDER PLAN 3 OF 5.94 PER CENT BUT
REQUIRING AN INCREASED RATE OF 26.48 PER CENT UNDER PLAN 2 AND OF 7.43
PER CENT UNDER PLAN 1 TO MEET THE COMPUTED DEFICITS AND GIVE A NET
RETURN OF 5.75 PER CENT ON THE INVESTED CAPITAL ALLOCATED TO MAIL. 

FN21  THE REPORT CONTINUED:  "THE TOTAL MAIL REVENUE OF $35,728 FOR
THE YEAR 1931 ON A SPACE RATIO OF 12.96 WAS ONLY $594 LESS THAN THE
TOTAL REVENUE FROM PASSENGER SERVICE PROPER, INCLUDING BAGGAGE, AND
MISCELLANEOUS SERVICE, WITH A SPACE RATIO OF 80.35  ...  THE
DISTRIBUTION OF EXPENSE UPON THE SPACE RATIOS SHOWS THAT THE OPERATING
RATIO FOR MAIL SERVICE WAS 102.79 AS COMPARED WITH 630.41 FOR PASSENGER
PROPER, INCLUDING BAGGAGE, ETC., AND 249.67 FOR EXPRESS."  192 I.C.C.
AT 781-782. 

FN22  SEE NOTE 21. 

FN23  "IN OTHER MAIL-PAY PROCEEDINGS, IN WHICH SPACE AUTHORIZED AND
PAID FOR WAS FOUND TO BE THE SPACE THAT SHOULD BE CHARGED TO MAIL IN
COST STUDIES SIMILAR TO THAT HERE, CONSIDERATION WAS GIVEN TO OTHER
FACTORS AS WELL, SUCH AS THE AMOUNT AND CHARACTER OF THE UNUSED SPACE
REPORTED AS OPERATED (RAILWAY MAIL PAY, 85 I.C.C. 157, 170, 123 I.C.C.
33, 39); THE ACTUAL SPACE OCCUPIED BY MAIL, AS DISTINGUISHED FROM
AUTHORIZED SPACE, DETERMINED BY THE MAIL LOAD CARRIED, BASED UPON A
COUNT OF BAGS AND OF PACKAGES OUTSIDE OF BAGS, AND, IN SOME INSTANCES,
BY THE WEIGHT (RAILWAY MAIL PAY, 95 I.C.C. 493, 500, 511, 120 I.C.C.
439, 446); COMPARISONS WITH COMPENSATION RECEIVED FROM OTHER SERVICES
IN PASSENGER-TRAIN CARS (RAILWAY MAIL PAY, 144 I.C.C. 675, 706);
COMPARISONS WITH FREIGHT RATES (RAILWAY MAIL PAY, 144 I.C.C. 675, 705,
151 I.C.C. 734, 742); COMPARISONS PER CAR-MILE AND PER CAR-FOOT MILE OF
THE COMPUTED COST OF MAIL SERVICE AND THE REVENUE FROM AUTHORIZED MAIL
SERVICE WITH THE COMPUTED COST OF CORRESPONDING UNITS IN PASSENGER
TRAIN SERVICE AS A WHOLE (RAILWAY MAIL PAY, 144 I.C.C. 675, 699); AND
THE CHARACTER OF THE SERVICE PERFORMED IN CONNECTION WITH TRANSPORTING
THE MAIL (RAILWAY MAIL PAY, 56 I.C.C. 1, 8, ELECTRIC RAILWAY MAIL PAY,
58 I.C.C. 455, 464, 98 I.C.C. 737, 755)."  214 I.C.C. AT 69-70. 

FN24  IT IS TO BE RECALLED THAT THE EXPENSE RATIOS BASED UPON THE
SPACE RATIOS ACCEPTED UNDER PLAN 2 WERE APPLIED ALSO TO CAPITAL
ALLOCATED TO PASSENGER-TRAIN SERVICE TO APPORTION THAT CAPITAL AMONG
THE THREE COMPONENT SERVICES MAKING UP PASSENGER-TRAIN SERVICE.    FN25
SEE, E.G., SHIELDS V. UTAH IDAHO R. CO., 305 U.S. 177, 184-185.  CF.
NORTON V. WARNER CO., 321 U.S. 565, 568-569. 

FN26  CITED IN THE TEXT, 303 U.S. AT 238, WERE MISSOURI PACIFIC R. CO.
V. UNITED STATES, 271 U.S. 603, UPHOLDING THE COURT OF CLAIMS' VIEW ON
DEMURRER THAT CONGRESS, IN ENACTING 39 U.S.C. SEC. 536, NOT ONLY
INTENDED TO BUT HAD POWER TO PROVIDE THAT LAND-GRANT RAILROADS WERE TO
RECEIVE ONLY 80% OF WHATEVER MAIL PAY RATE THE COMMISSION SHOULD SET
NOT ONLY FOR MERE TRANSPORTATION OF MAIL (E.G., CLOSED-POUCH SPACE) BUT
FOR SPACE IN WHICH POSTAL EMPLOYEES SORTED MAIL (E.G., APARTMENT MAIL
CARS), AND UNITED STATES V. NEW YORK CENTRAL R. CO., 279 U.S. 73,
AFFIRMING THE COURT OF CLAIMS' CONCLUSION THAT THE COMMISSION HAD POWER
TO MAKE MAIL RATE REVISIONS APPLICABLE AS OF THE DATE OF THE CARRIER'S
REQUEST FOR REEXAMINATION OF RATES RATHER THAN AS OF THE DATE OF THE
COMMISSION ORDER RAISING THE RATE. 

COURT OF CLAIMS MAIL PAY DECISIONS CITED IN A FOOTNOTE, 303 U.S. AT
238, N. 10, INCLUDED: CHICAGO & E.I.R. CO. V. UNITED STATES, 63 CT. CL.
585; NEVADA COUNTY N.G.R. CO. V. UNITED STATES, 65 CT. CL. 327; CHICAGO
& E.I.R. CO. V. UNITED STATES, 72 CT. CL. 407; MACON, D. & S.R. CO. V.
UNITED STATES, 78 CT. CL. 251; 79 CT. CL. 298.  IN EACH OF THESE CASES
THE CLAIMANT CARRIER RECOVERED COMPENSATION IN EXCESS OF THAT ALLOWED
IT BY THE POSTMASTER GENERAL, BUT IN EACH CASE THE DISPUTE CENTERED
AROUND THE MEANING OF A COMMISSION RATE ORDER OR THE COMMISSION'S POWER
TO ENTER THE ORDER MADE; IN NONE WAS THERE ANY CHALLENGE TO THE RATE
ITSELF:  THUS, IN THE FIRST CHICAGO & E.I.R. CO. CASE, SUPRA, THE
QUESTION WAS WHETHER THE COMMISSION HAD, IN ACCORDANCE WITH 39 U.S.C.
SEC. 535, ORDERED COMPENSATION FOR THE RETURN TO THEIR DEPARTURE POINTS
OF MAIL STORAGE CARS.  IN THE SECOND CHICAGO & E.I.R. CO. CASE, SUPRA,
THE QUESTION WAS WHETHER "CLOSED-POUCH SPACE" WAS A "LESSER UNIT"
WITHIN THE MEANING OF A RATE ORDER SETTING COMPENSATION FOR A "STORAGE
CAR OR LESSER UNIT."  THE NEVADA COUNTY N.G.R. CO. CASE, SUPRA, WAS A
COMPANION TO NEW YORK CENTRAL R. CO. V. UNITED STATES, 65 CT. CL. 115,
AFFIRMED 279 U.S. 73, HOLDING THAT THE COMMISSION HAD POWER TO ORDER A
RATE INCREASE EFFECTIVE AS OF THE DATE OF THE APPLICATION FOR SUCH
INCREASE.  SIMILARLY, THE TWO OPINIONS IN MACON, D. & S.R. CO., SUPRA,
HELD THAT THE COMMISSION HAD POWER RETROACTIVELY TO RECLASSIFY THE
CLAIMANT CARRIER IN A HIGHER COMPENSATION BRACKET AS OF A DATE PRIOR TO
THE CARRIER'S APPLICATION FOR RECLASSIFICATION SO AS TO IMPOSE ON THE
UNITED STATES LIABILITY FOR ADDITIONAL COMPENSATION FROM THAT
RETROACTIVELY DETERMINED DATE OF RECLASSIFICATION. 

WITH THE PREFATORY ADMONITION, "COMPARE," THE GRIFFIN FOOTNOTE, 303
U.S. AT 238 N. 10, CITED TWO OTHER COURT OF CLAIMS RAILWAY MAIL PAY
DECISIONS, PERE MARQUETTE R. CO. V. UNITED STATES, 59 CT. CL. 538, AND
NEW JERSEY & N.Y.R. CO. V. UNITED STATES, 80 CT. CL. 243:  THESE
DECISIONS HELD THE COURT POWERLESS TO FIX MAIL PAY RATES OR
CLASSIFICATIONS, BOTH FUNCTIONS BEING FOUND TO BE WITHIN THE EXCLUSIVE
PURVIEW OF THE COMMISSION.  SEE NOTE 27 INFRA. 

FN27  IN PERE MARQUETTE R. CO. V. UNITED STATES, 59 CT. CL. 538, THE
CARRIER SOUGHT COMPENSATION FOR MAIL CAR SPACE FURNISHED BY THE CARRIER
WHERE THAT SPACE WAS NEITHER AUTHORIZED BY THE POST OFFICE DEPARTMENT
NOR IN FACT USED FOR MAIL TRANSPORTATION, AND WHERE THE COMMISSION HAD
NOT ORDERED COMPENSATION; THE COURT OF CLAIMS SAID, ID. AT 545, IN
DISMISSING THE PETITION: 

"THE ACT OF JULY 28, 1916, CLEARLY INTENDED THAT ALL QUESTIONS OF THE
COMPENSATION TO BE PAID RAILROAD COMPANIES FOR CARRYING THE MAILS
SHOULD BE DETERMINED BY THE INTERSTATE COMMERCE COMMISSION.  THE
COMMISSION HAVING ACTED WITHIN THE SCOPE OF ITS AUTHORITY, HAVING FIXED
THE REASONABLE COMPENSATION TO WHICH THE PLAINTIFF IS ENTITLED, THIS
COURT CAN NOT REVIEW THE ACTION OF THE COMMISSION AND UNDERTAKE TO FIX
A DIFFERENT COMPENSATION FROM THAT ARRIVED AT BY THE COMMISSION.  IF
THE PLAINTIFF HAS PERFORMED ANY SERVICE WHICH THE COMMISSION HAS FAILED
TO PROVIDE FOR IN ITS ORDER FIXING COMPENSATION, THEN THE PLAINTIFF'S
REMEDY IS BEFORE THE INTERSTATE COMMERCE COMMISSION AND NOT IN THIS
COURT." 

IN NEW JERSEY & N.Y.R. CO. V. UNITED STATES, 80 CT. CL. 243, THE
COURT OF CLAIMS DISMISSED A CLAIM FOR COMPENSATION BASED ON A
CLASSIFICATION WHICH HAD BEEN DENIED THE CARRIER BY THE COMMISSION; THE
DISMISSAL WAS GROUNDED ON THE PROPOSITION THAT "THIS COURT HAS NO
JURISDICTION TO CLASSIFY RAILROADS OR TO FIX THE COMPENSATION FOR THE
CARRYING OF THE MAILS."  80 CT. CL. AT 248.  OF THE CASES ALLOWING
MONEY JUDGMENTS FOR COMPENSATION, DISCUSSED IN NOTE 26 SUPRA, THE COURT
OBSERVED THAT THERE "THE RECOVERY IN THIS COURT MERELY CARRIED INTO
EFFECT THE COMMISSION'S DETERMINATION, THAT IS TO SAY, THIS COURT DID
NOT UNDERTAKE TO MAKE A CLASSIFICATION OR TO FIX A RATE OF
COMPENSATION."  80 CT. CL. AT 248.  CF. DENVER & RIO GRANDE R. CO. V.
UNITED STATES, 50 CT. CL. 382, 391. 

FN28  "AND SINCE RAILWAY MAIL SERVICE IS COMPULSORY, THE COURT OF
CLAIMS WOULD, UNDER THE GENERAL PROVISIONS OF THE TUCKER ACT, HAVE
JURISDICTION ALSO OF AN ACTION FOR ADDITIONAL COMPENSATION IF AN ORDER
IS CONFISCATORY.  UNITED STATES V. GREAT FALLS MFG. CO., 112 U.S. 645;
NORTH AMERICAN TRANSPORTATION & TRADING CO. V. UNITED STATES, 253 U.S.
330, 333; JACOBS V. UNITED STATES, 290 U.S. 13, 16."  303 U.S. AT 238. 

FN29  AS TO INTEREST COMPARE THE GREAT FALLS CASE WITH THE JACOBS
CASE, BOTH CITED IN NOTE 28. 

FN30  OUR ATTENTION HAS NOT BEEN CALLED TO ATTACKS ON RAILWAY MAIL
RATE ORDERS BASED ON THIS GRANT OF JURISDICTION; BUT IT MAY BE NOTED
THAT DISTRICT COURT SUITS TO ENJOIN THE POSTMASTER GENERAL'S FRAUD
ORDERS ARE COMMONPLACE.  SEE, E.G., WILLIAMS V. FANNING, 332 U.S. 490,
492, N. 2. 

FN31  5 U.S.C. SECS. 1001-1011. 

FN32  SEE TAGG BROS. V. UNITED STATES, 280 U.S. 420, 444, N. 4.  CF.
NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 227; SHIELDS
V. UTAH IDAHO R. CO., 305 U.S. 177, 185. 

MR. JUSTICE REED AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :











RICE V. RICE, 336 U.S. 674 


NO. 117.  ARGUED DECEMBER 14, 1948.  - DECIDED APRIL 18, 1949.  - 134
CONN. 440, 58 A.2D 523, AFFIRMED. 


AFTER BEING DOMICILED IN CONNECTICUT, RESPONDENT'S HUSBAND WENT TO
NEVADA, WHERE HE OBTAINED A DIVORCE DECREE WITHOUT PERSONAL SERVICE
UPON, OR PARTICIPATION IN THE PROCEEDINGS BY, HER.  HE IMMEDIATELY
MARRIED PETITIONER, BUT DIED SHORTLY THEREAFTER WITHOUT HAVING RETURNED
TO CONNECTICUT.  IN A SUIT BROUGHT BY RESPONDENT TO DETERMINE THE
WIDOWHOOD STATUS OF THE PARTIES, THE CONNECTICUT COURTS, HAVING PLACED
UPON RESPONDENT THE BURDEN OF PROVING THAT DECEDENT HAD NOT OBTAINED A
BONA FIDE DOMICILE IN NEVADA, WHICH WAS SUSTAINED BY ADEQUATE EVIDENCE
AFTER A FULL TRIAL, DECLINED TO GIVE EFFECT TO THE NEVADA DECREE. 
HELD:  HAVING GIVEN PROPER WEIGHT TO THE CLAIMS OF POWER BY THE NEVADA
COURT, THE COURTS OF CONNECTICUT DID NOT DENY FULL FAITH AND CREDIT TO
THE NEVADA DECREE.  PP. 674-676. 

RICE V. RICE. 

CERTIORARI TO THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

IN A SUIT FOR A DECLARATORY JUDGMENT, A CONNECTICUT COURT ADJUDGED A
NEVADA DIVORCE DECREE VOID FOR WANT OF JURISDICTION.  THE STATE SUPREME
COURT OF ERRORS AFFIRMED.  134 CONN. 440, 58 A.2D 523.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 842.  AFFIRMED, P. 676. 

PER CURIAM. 

THE QUESTION FOR DECISION HERE IS WHETHER THE COURTS OF CONNECTICUT
GAVE TO A NEVADA DIVORCE DECREE THE FULL FAITH AND CREDIT REQUIRED BY
ART. IV, SEC. 1 OF THE CONSTITUTION.  RESPONDENT BROUGHT THE ACTION IN
A CONNECTICUT SUPERIOR COURT, SEEKING A DECLARATORY JUDGMENT THAT A
DECREE OF DIVORCE ENTERED AGAINST HER AND IN FAVOR OF HER HUSBAND, THE
LATE HERBERT N. RICE, BY A NEVADA COURT IS NOT ENTITLED TO FULL FAITH
AND CREDIT BECAUSE HE WAS NOT DOMICILED IN THAT STATE AT THE TIME THE
DECREE WAS ENTERED.  PETITIONER, WHO HAD MARRIED HERBERT N. RICE
FOLLOWING HIS DIVORCE, AND THE ADMINISTRATOR OF HIS ESTATE WERE JOINED
AS DEFENDANTS.  THE PURPOSE OF THE ACTION WAS TO DETERMINE THE
WIDOWHOOD STATUS OF THE PARTIES AND TO DECIDE QUESTIONS CONCERNING THE
INHERITANCE OF THE PROPERTY OF THE DECEDENT, WHO DIED INTESTATE. 

AFTER A FULL TRIAL, JUDGMENT WAS ENTERED IN FAVOR OF RESPONDENT, AND
THE COURT'S FINDING THAT HERBERT N. RICE HAD NEVER ESTABLISHED A BONA
FIDE DOMICILE IN NEVADA WAS AFFIRMED ON APPEAL BY THE SUPREME COURT OF
ERRORS OF CONNECTICUT.  134 CONN. 440, 58 A.2D 523.  WE GRANTED THE
PETITION FOR CERTIORARI, 335 U.S. 842, TO CONSIDER PETITIONER'S
CONTENTION THAT THE CONNECTICUT COURTS DID NOT FAIRLY DISCHARGE THE
DUTY OF RESPECT OWED THE NEVADA DECREE UNDER THIS COURT'S DECISIONS IN
WILLIAMS V. NORTH CAROLINA, 325 U.S. 226, AND ESENWEIN V. COMMONWEALTH,
325 U.S. 279. 

UPON FULL CONSIDERATION OF THE RECORD, THE OPINION OF THE SUPREME
COURT OF ERRORS, AND THE ARGUMENT OF COUNSEL, WE HAVE CONCLUDED THAT
THE CONNECTICUT COURTS GAVE PROPER WEIGHT TO THE CLAIMS OF POWER BY THE
NEVADA COURT, THAT THE BURDEN OF PROVING THAT THE DECEDENT HAD NOT
ACQUIRED A DOMICILE IN NEVADA WAS PLACED UPON RESPONDENT, THAT THIS
ISSUE OF FACT WAS FAIRLY TRIED ACCORDING TO APPROPRIATE PROCEDURE, AND
THAT THE FINDINGS OF THE CONNECTICUT COURTS ARE AMPLY SUPPORTED IN
EVIDENCE.  OUR STATEMENT IN THE ESENWEIN OPINION, 325 U.S. AT 281, THAT
"IT IS NOT FOR US TO RETRY THE FACTS, AND WE CANNOT SAY THAT IN
REACHING THEIR CONCLUSION THE (CONNECTICUT) COURTS DID NOT HAVE WARRANT
IN EVIDENCE AND DID NOT FAIRLY WEIGH THE FACTS," IS APPROPRIATE HERE. 

SHERRER V. SHERRER, 334 U.S. 343, AND COE V. COE, 334 U.S. 378,
DECIDED BY THIS COURT LAST TERM, ARE NOT IN POINT.  NO PERSONAL SERVICE
WAS MADE UPON RESPONDENT, NOR DID SHE IN ANY WAY PARTICIPATE IN THE
NEVADA PROCEEDINGS.  SHE WAS NOT, THEREFORE, PRECLUDED IN THE PRESENT
ACTION FROM CHALLENGING THE FINDING OF THE NEVADA COURT THAT HERBERT N.
RICE WAS, AT THE TIME OF THE DIVORCE, DOMICILED IN THAT STATE. 
AFFIRMED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE RUTLEDGE
DISSENT. 

MR. JUSTICE JACKSON, DISSENTING. 

SINCE THIS CASE INVOLVES ONLY REAPPRAISAL OF EVIDENCE, AND WE DECLINE
TO DO THAT, IT IS HARD TO SEE A REASON FOR GRANTING CERTIORARI UNLESS
IT WAS TO RECORD IN OUR REPORTS AN EXAMPLE OF THE MANNER IN WHICH, IN
THE LAW OF DOMESTIC RELATIONS, "CONFUSION NOW HATH MADE HIS
MASTERPIECE."  THE QUESTION IS WHETHER PROPERTY OWNED IN CONNECTICUT BY
ONE WHO HAS OBTAINED A NEVADA DIVORCE AND REMARRIED IN THAT STATE CAN
BE TAKEN FROM HIS ACTING WIDOW AND BESTOWED UPON THE WOMAN SHE
SUPERSEDED.  THE FACTS ARE THESE: 

AFTER TWENTY YEARS OF MARRIED LIFE IN CONNECTICUT WITH LILLIAN, RICE
ARRIVED AT RENO, NEVADA, ON MARCH 23, 1944, AND BEGAN A DIVORCE ACTION
ON MAY 5.  THE COMPLAINT AND PROCESS WERE HANDED TO LILLIAN AT HER HOME
IN CONNECTICUT.  SHE WAS NOT SERVED WITH PROCESS IN NEVADA.  SHE WAS
TEACHING SCHOOL IN CONNECTICUT, NEVER HAD LIVED IN NEVADA, AND DID NOT
APPEAR PERSONALLY OR BY ATTORNEY IN THE ACTION, WHICH SHE CLAIMS WAS A
SURPRISE MANEUVER ON THE PART OF RICE. 

RICE HAD RENTED A FURNISHED ROOM IN RENO AND TESTIFIED THAT HE
INTENDED TO REMAIN THERE "INDEFINITELY."  HE WAS AWARDED A DIVORCE FROM
LILLIAN ON JUNE 13 AND WIRED HERMOINE, WHO ARRIVED THERE ON JULY 3. 
THEY WERE IMMEDIATELY MARRIED AND NEVER RETURNED TO CONNECTICUT.  THEY
RETAINED THE ROOM IN RENO, WHICH THEY OCCUPIED FROM TIME TO TIME, AND
BOTH OBTAINED WAR EMPLOYMENT IN CALIFORNIA WHERE SIX MONTHS LATER RICE
DIED. 

LILLIAN BROUGHT AN ACTION IN CONNECTICUT TO HAVE HERSELF DECLARED HIS
WIDOW INSOFAR AS CONNECTICUT REAL ESTATE WAS CONCERNED.  THE COURT
REVIEWED THE EVIDENCE AS TO WHETHER RICE ESTABLISHED A GOOD FAITH
DOMICILE IN NEVADA AND HELD THAT HE HAD NOT AND WAS NOT ENTITLED TO
MAINTAIN AN ACTION THERE FOR DIVORCE.  THE QUESTION COMES HERE AS TO
WHETHER THIS HOLDING BY CONNECTICUT COURTS GAVE FULL FAITH AND CREDIT
TO THE NEVADA DECREE OF DIVORCE AS REQUIRED BY THE CONSTITUTION. 

IN WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, THIS COURT RODE
ROUGHSHOD OVER THE PRECEDENTS AND HELD THAT A STATE COURT, WITHOUT
PERSONAL SERVICE OF PROCESS ON THE DEFENDANT, CAN ON SHORT RESIDENCE
GRANT A DIVORCE WHICH IS VALID AND ENTITLED TO FAITH AND CREDIT IN ALL
STATES.  IF RICE COULD HAVE RELIED ON THAT PRONOUNCEMENT, HIS DIVORCE
FROM LILLIAN AND HIS MARRIAGE TO HERMOINE WOULD BE WITHOUT LEGAL FLAW,
AND THE LATTER'S WIDOWHOOD CLEAR. 

BUT IN THE SECOND CASE OF WILLIAMS V. NORTH CAROLINA, 325 U.S. 226,
THE COURT HELD THAT JURISDICTIONAL FINDINGS BY THE NEVADA COURT IN SUCH
A CASE DO NOT PRECLUDE REEXAMINATION AND A DIFFERENT CONCLUSION ON THE
PART OF ANOTHER STATE.  AND IN ESTIN V. ESTIN, 334 U.S. 541, THE COURT
HELD THAT THE SECOND STATE IS FREE TO ARRIVE AT ITS OWN DETERMINATION
AS TO PLAINTIFF'S DOMICILE IN DETERMINING PROPERTY RIGHTS, EVEN THOUGH
REQUIRED, UNDER THE WILLIAMS CASES OR EITHER OF THEM, TO RECOGNIZE THE
DIVORCE JUDGMENT AS TERMINATING THE MARRIAGE.  NOW COMES RICE V. RICE
TO DEMONSTRATE THE CONSEQUENCES OF THESE DOCTRINES. 

CONGRESS, AS IT IS EMPOWERED TO DO BY THE FULL FAITH AND CREDIT
CLAUSE OF THE CONSTITUTION, HAS ENACTED THAT JUDGMENTS "SHALL HAVE SUCH
FAITH AND CREDIT GIVEN TO THEM IN EVERY COURT WITHIN THE UNITED STATES,
AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE STATE FROM WHENCE THE
SAID RECORDS ARE OR SHALL BE TAKEN."  1 STAT. 122.  THERE IS NO DOUBT
THAT UNDER THE LAW AND USAGE OF NEVADA, HERMOINE WAS WIFE AND WIDOW OF
RICE, AND ON ITS FACE THE STATUTE WOULD SEEM TO REQUIRE THAT SHE BE
RECOGNIZED AS SUCH ELSEWHERE.  BUT THINGS SOMETIMES ARE NOT WHAT THEY
SEEM. 

IN ORDER TO HAVE ANYTHING WHICH COURTS OF THE WESTERN WORLD RECOGNIZE
AS A JUDGMENT, EXCEPT IN AN ACTION IN REM, IT IS NECESSARY THAT THE
RENDERING COURT HAVE WITHIN ITS POWER BOTH THE PARTY WHO SEEKS RELIEF
AND THE ONE AGAINST WHOM RELIEF IS SOUGHT. 

THIS COURT, WHILE ACKNOWLEDGING THAT PERSONAL SERVICE OF PROCESS ON
THE DEFENDANT ORDINARILY IS NECESSARY TO A VALID JUDGMENT IN A PERSONAL
ACTION, HELD IN THE FIRST WILLIAMS CASE THAT A STATE COULD BRING A
NONRESIDENT DEFENDANT WITHIN ITS POWER MERELY BY PUBLICATION OR OUT-OF
STATE SERVICE OF ITS SUMMONS.  IT OVERRULED FORMER DECISIONS TO
INTRODUCE WHAT IT HAS APTLY CHARACTERIZED IN SHERRER V. SHERRER, 334
U.S. 343, 349 N. 11, AND 356, AS THE "EX PARTE DIVORCE."  TO ME EX
PARTE DIVORCE IS A CONCEPT AS PERVERSE AND UNREALISTIC AS AN EX PARTE
MARRIAGE.  THE VICE OF THE SYSTEM SANCTIONED IN WILLIAMS V. NORTH
CAROLINA, 317 U.S. 287, IS THAT ONE OF THE PARTIES MAY LEAVE THE STATE
WHERE BOTH FOR YEARS HAVE MADE THEIR HOME, SEEK A FORUM OF HIS CHOICE,
AND PRETTY MUCH ON HIS OWN TERMS ALTER THE PATTERN OF TWO LIVES WITHOUT
AFFORDING THE OTHER EVEN A DECENT CHANCE TO BE HEARD - AS THIS CASE
ILLUSTRATES.  LILLIAN EITHER HAD TO LEAVE HER TEACHING AND MEANS OF
SUPPORT TO FOLLOW HER HUSBAND TWO THOUSAND MILES FROM ANY PLACE WHERE
SHE EVER HAD LIVED, OR LET HER MARRIAGE GO BY DEFAULT.  IF SHE CHOSE TO
FOLLOW AND CONTEST UNDER NEVADA LAW, SHE HAD LITTLE REAL CHANCE TO
SUCCEED.  BUT THIS COURT HAD CALLED THIS DUE PROCESS OF LAW FOR
LILLIAN. 

HERMOINE RELIED ON THE NEVADA COURT, WHICH DID ONLY WHAT THIS COURT
AUTHORIZED IT TO DO - GRANT AN EX PARTE DIVORCE.  SHE MARRIED A MAN
WHOM THIS COURT SAYS NEVADA HAD A RIGHT TO MAKE FREE BY SUCH PROCESS. 
SHE HAD EVERY RIGHT TO BELIEVE HER MARRIAGE COMPLETE AND VALID IN ALL
PLACES AND FOR ALL PURPOSES.  CERTAINLY UNDER THE LAW OF NEVADA WHERE
SHE CONTINUED TO RESIDE IT WAS VALID, AND THIS COURT HAD HELD THE OUT
OF-STATE SERVICE SUFFICIENT TO EMPOWER NEVADA TO TAKE JURISDICTION OF
LILLIAN FOR THE PURPOSE OF DISSOLVING HER MARRIAGE.  BUT NOW WE SAY
THAT CONNECTICUT MAY FIND THAT RICE WAS NOT SUFFICIENTLY DOMICILED IN
NEVADA TO GIVE THAT STATE POWER TO ACT ON HIS COMPLAINT.  THIS PRESENTS
A STUDY IN CONTRASTS. 

WE HAVE SAID THAT NEVADA DOES HAVE POWER TO DISSOLVE THE MARRIAGE OF
A WOMAN WHO NEVER WAS THERE IN HER LIFE, NEVER INVOKED ITS LAW OR ITS
COURTS, DID NOT SUBMIT HERSELF TO ITS JURISDICTION, REFUSED TO ANSWER
ITS SUMMONS, AND TOOK NO BENEFITS FROM ITS JUDGMENTS. 

ON THE OTHER HAND, WE SAY THAT COURTS OF ANY STATE MAY FIND THAT
NEVADA DOES NOT GET POWER TO DISSOLVE THE MARRIAGE OF A MAN WHO WENT TO
THAT STATE AND NEVER CAME BACK, WHO INVOKED ITS LAW, WENT INTO ITS
COURT AND SUBMITTED HIMSELF TO ITS JURISDICTION, TESTIFIED HE WAS
DOMICILED THERE, AND DURING THE REST OF HIS LIFE HELD QUARTERS WITHIN
THAT STATE. 

BUT EVEN UNDER THE TWO WILLIAMS CASES, A QUICK NEVADA DIVORCE WAS
EITHER CONCLUSIVE (FIRST WILLIAMS CASE) OR VULNERABLE (SECOND WILLIAMS
CASE) IN ITS ENTIRETY.  HOWEVER, IN ADDITION TO THE RIGHTS GROUPED
UNDER THE TERM CONSORTIUM, WHICH ARE TERMINATED BY DIVORCE, THERE ARE
SUBSIDIARY RIGHTS OF A PROPERTY NATURE SUCH AS SUPPORT, ALIMONY,
DISTRIBUTIVE INTERESTS IN PERSONALTY, DOWER AND INHERITANCE.  THESE
PRESENTED DIFFICULTIES IN CASE OF THE DIVORCE ON CONSTRUCTIVE SERVICE
OF PROCESS ON A NONRESIDENT DEPENDENT IN WHICH THERE WAS NO REAL CHANCE
TO DEFEND.  SO THE COURT IMPROVISED THE CONCEPT OF "DIVISIBLE" DIVORCE,
ESTIN V. ESTIN, 334 U.S. 541, 549, A DIVORCE GOOD TO END A MARRIAGE BUT
INVALID TO AFFECT DEPENDENT PROPERTY RIGHTS. 

I THINK THAT THE JUDGMENT OF THE CONNECTICUT COURT, BUT FOR THE FIRST
WILLIAMS CASE AND ITS PROGENY, MIGHT PROPERLY HAVE HELD THAT THE RICE
DIVORCE DECREE WAS VOID FOR EVERY PURPOSE BECAUSE IT WAS RENDERED BY A
STATE COURT WHICH NEVER OBTAINED JURISDICTION OF THE NONRESIDENT
DEFENDANT AND WHICH HAD NO POWER TO REACH INTO ANOTHER STATE AND SUMMON
HER BEFORE IT. 

BUT IF WE ADHERE TO THE HOLDINGS THAT THE NEVADA COURT HAD POWER OVER
HER FOR THE PURPOSE OF BLASTING HER MARRIAGE AND OPENING THE WAY TO A
SUCCESSOR, I DO NOT SEE THE JUSTICE OF INVENTING A COMPENSATING
CONFUSION IN THE DEVICE OF A DIVISIBLE DIVORCE BY WHICH THE PARTIES ARE
HALF-BOUND AND HALF-FREE AND WHICH PERMITS RICE TO HAVE A WIFE WHO
CANNOT BECOME HIS WIDOW AND TO LEAVE A WIDOW WHO WAS NO LONGER HIS
WIFE.  LILLIAN'S STANDING AS THE RELICT OF RICE IS INVULNERABLE, WHILE
HER STANDING AS HIS WIFE COULD BE BLASTED BY A NEVADA DECREE IN AN
ACTION TO WHICH SHE DID NOT NEED TO EVEN BECOME A PARTY. 

THIS COURT IS NOT RESPONSIBLE FOR ALL THE CONTRADICTIONS AND
CONFLICTS RESULTING FROM OUR FEDERAL SYSTEM OR FROM OUR CRAZY QUILT OF
DIVORCE LAWS, BUT WE ARE CERTAINLY COMPOUNDING THOSE DIFFICULTIES BY
REPUDIATING THE USUAL REQUIREMENTS OF PROCEDURAL DUE PROCESS IN DIVORCE
CASES AND COMPENSATING FOR IT BY REPUDIATING THE FULL FAITH AND CREDIT
CLAUSE.  MY DISSENTING VIEWS IN THE WILLIAMS AND ESTIN CASES WOULD LEAD
ME TO AFFIRM THE JUDGMENT BELOW, BECAUSE I BELIEVE THIS DIVORCE WAS
ALWAYS AND IN ALL PLACES INVALID ON DUE PROCESS GROUNDS FOR WANT OF
JURISDICTION OF THE DEFENDANT.  HOWEVER, IF IT WAS VALID ON THAT GROUND
AND NOTHING BUT A REVIEW OF THE EVIDENCE OF DOMICILE BY THE SECOND
STATE COURT IS INVOLVED, WE SHOULD NOT GRANT WRITS IN THIS CLASS OF
CASES; BUT IF I AM TO REVIEW THE EVIDENCE HERE, I THINK THE NEVADA
COURT'S FINDING OF JURISDICTION WAS BASED ON SUBSTANTIAL EVIDENCE OF
DOMICILE, NOT OVERCOME BY ANY NEW EVIDENCE BEFORE THE CONNECTICUT
COURT, AND THE NEVADA JUDGMENT SHOULD BE GIVEN FULL FAITH AND CREDIT AS
THE CONGRESS HAS COMMANDED. 
..END :

















FOUNTAIN V. FILSON, 336 U.S. 681 


NO. 542.  DECIDED APRIL 18, 1949.  - 84 U.S. APP. D.C. - , 171 F.2D 999,
REVERSED. 


RESPONDENTS SUED IN THE DISTRICT OF COLUMBIA FOR A DECLARATION OF A
RESULTING TRUST IN CERTAIN NEW JERSEY REALTY AND FOR "OTHER RELIEF." 
THE DISTRICT COURT GRANTED PETITIONER'S MOTION FOR A SUMMARY JUDGMENT,
ON THE GROUND THAT NEW JERSEY LAW WOULD NOT PERMIT THE IMPOSITION OF A
RESULTING TRUST IN THE CIRCUMSTANCES DISCLOSED IN THE COMPLAINT AND
ACCOMPANYING DOCUMENTS.  THE COURT OF APPEALS SUSTAINED THIS ACTION BUT
REMANDED THE CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO ENTER A
PERSONAL MONEY JUDGMENT FOR RESPONDENTS.  HELD:  THE COURT OF APPEALS
ERRED IN DIRECTING ENTRY OF A PERSONAL MONEY JUDGMENT AND IN THUS
DEPRIVING PETITIONER OF AN OPPORTUNITY TO DISPUTE THE FACTS MATERIAL TO
THAT CLAIM.  PP. 681-683. 

FOUNTAIN V. FILSON ET UX. 

ON PETITION FOR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT. 

ON APPEAL FROM A SUMMARY JUDGMENT OF A DISTRICT COURT DENYING A
DECLARATION OF A RESULTING TRUST IN REALTY, THE COURT OF APPEALS
SUSTAINED THIS ACTION BUT REMANDED THE CASE TO THE DISTRICT COURT WITH
DIRECTIONS TO ENTER A PERSONAL MONEY JUDGMENT.  84 U.S. APP. D.C. - ,
171 F.2D 999.  ON PETITION FOR CERTIORARI, THIS COURT GRANTS
CERTIORARI, REVERSES THE DECISION OF THE COURT OF APPEALS, AND REMANDS
THE CAUSE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS, P. 683. 

PER CURIAM. 

MR. AND MRS. FILSON BROUGHT THIS SUIT IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, CLAIMING A $6,000 INTEREST IN CERTAIN NEW JERSEY
REALTY.  THE COMPLAINT ALLEGED THAT MR. AND MRS. FOUNTAIN, THE
DEFENDANTS, ACQUIRED TITLE TO THIS REALTY SUBJECT TO A RESULTING TRUST
IN FAVOR OF THE FILSONS IN THAT AMOUNT.  THE FOUNTAINS ANSWERED.  THEY
DENIED THE EXISTENCE OF A RESULTING TRUST AND ALSO DENIED THE EXISTENCE
OF ANY OBLIGATION TO THE FILSONS.  THE DOCUMENTS COVERING THE TRANSFER
OF THE REALTY AND CERTAIN DEPOSITIONS OF THE PARTIES WERE FILED.  MRS.
FOUNTAIN, HER HUSBAND HAVING DIED, THEN MOVED FOR SUMMARY JUDGMENT
UNDER RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE.  THE SOLE BASIS
OF THE MOTION WAS THE CLAIM THAT NEW JERSEY LAW WOULD NOT PERMIT THE
IMPOSITION OF A RESULTING TRUST UNDER THE CIRCUMSTANCES DISCLOSED IN
THE COMPLAINT AND THE ACCOMPANYING DOCUMENTS.  THE MOTION WAS GRANTED
AND JUDGMENT FOR MRS. FOUNTAIN WAS ENTERED. 

ON APPEAL THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CAME TO
THREE CONCLUSIONS.  FIRST, IT AGREED THAT UNDER NEW JERSEY LAW NO
RESULTING TRUST COULD ARISE.  SECOND, IT CONCLUDED THAT THE SUMMARY
JUDGMENT IN MRS. FOUNTAIN'S FAVOR WAS NEVERTHELESS ERRONEOUS, BECAUSE
THE COMPLAINT CONTAINED A GENERAL PRAYER FOR "OTHER RELIEF" AND ALLEGED
FACTS ON THE BASIS OF WHICH A PERSONAL JUDGMENT FOR $6,000 COULD HAVE
BEEN RECOVERED EVEN IN THE ABSENCE OF A RESULTING TRUST IN THE REALTY. 
FINALLY, THE COURT OF APPEALS PROCEEDED TO EXAMINE THE DEPOSITIONS
WHICH HAD BEEN TAKEN IN ADVANCE OF TRIAL.  THE COURT CONCLUDED THAT
THEY SHOWED THE EXISTENCE OF A PERSONAL OBLIGATION AND THE CASE WAS,
THEREFORE, REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO ENTER A
PERSONAL JUDGMENT IN FAVOR OF THE FILSONS FOR $6,000.  84 U.S. APP.
D.C. - , 171 F.2D 999.  MRS. FOUNTAIN'S TIMELY MOTION FOR A
MODIFICATION OF THIS ORDER IN ORDER TO PERMIT A TRIAL AS TO THE
EXISTENCE OF THE PERSONAL OBLIGATION WAS DENIED. 

MRS. FOUNTAIN'S PETITION FOR CERTIORARI, WHICH ATTACKS ONLY THE THIRD
PORTION OF THE COURT OF APPEALS' RULING ABOVE STATED, IS GRANTED AND
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.  WE NEED NOT PASS ON
THE PROPRIETY OF AN ORDER FOR SUMMARY JUDGMENT BY A DISTRICT COURT IN
FAVOR OF ONE PARTY AFTER THE OPPOSITE PARTY HAS MOVED FOR SUMMARY
JUDGMENT IN ITS FAVOR, WHERE IT APPEARS THAT THERE IS NO DISPUTE AS TO
ANY FACT MATERIAL TO THE ISSUE BEING LITIGATED.  FOR HERE THE ORDER WAS
MADE ON APPEAL ON A NEW ISSUE AS TO WHICH THE OPPOSITE PARTY HAD NO
OPPORTUNITY TO PRESENT A DEFENSE BEFORE THE TRIAL COURT.  IN GLOBE
LIQUOR CO. V. SAN ROMAN, 332 U.S. 571(1948), AND CONE V. WEST VIRGINIA
PAPER CO., 330 U.S. 212(1947), WE HELD THAT JUDGMENT NOTWITHSTANDING
THE VERDICT COULD NOT BE GIVEN IN THE COURT OF APPEALS IN FAVOR OF A
PARTY WHO HAD LOST IN THE TRIAL COURT AND WHO HAD NOT THERE MOVED FOR
SUCH RELIEF.  ONE OF THE REASONS FOR SO HOLDING WAS THAT OTHERWISE THE
PARTY WHO HAD WON IN THE TRIAL COURT WOULD BE DEPRIVED OF ANY
OPPORTUNITY TO REMEDY THE DEFECT WHICH THE APPELLATE COURT DISCOVERED
IN HIS CASE.  HE WOULD HAVE HAD SUCH AN OPPORTUNITY IF A PROPER MOTION
HAD BEEN MADE BY HIS OPPONENT IN THE TRIAL COURT.  THE SAME PRINCIPLE
INTERDICTS, A FORTIORI, THE APPELLATE COURT ORDER FOR SUMMARY JUDGMENT
HERE.  SUMMARY JUDGMENT MAY BE GIVEN, UNDER RULE 56, ONLY IF THERE IS
NO DISPUTE AS TO ANY MATERIAL FACT.  THERE WAS NO OCCASION IN THE TRIAL
COURT FOR MRS. FOUNTAIN TO DISPUTE THE FACTS MATERIAL TO A CLAIM THAT A
PERSONAL OBLIGATION EXISTED, SINCE THE ONLY CLAIM CONSIDERED BY THAT
COURT ON HER MOTION FOR SUMMARY JUDGMENT WAS THE CLAIM THAT THERE WAS A
RESULTING TRUST.  WHEN THE COURT OF APPEALS CONCLUDED THAT THE TRIAL
COURT SHOULD HAVE CONSIDERED A CLAIM FOR PERSONAL JUDGMENT IT WAS ERROR
FOR IT TO DEPRIVE MRS. FOUNTAIN OF AN OPPORTUNITY TO DISPUTE THE FACTS
MATERIAL TO THAT CLAIM BY ORDERING SUMMARY JUDGMENT AGAINST HER.  THE
JUDGMENT OF THE COURT OF APPEALS IS, THEREFORE, REVERSED AND THE CAUSE
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE
WITH THE OPINION OF THE COURT OF APPEALS AS HERE MODIFIED.  REVERSED. 
..END :























CHICAGO ETC. R. CO. V. ACME FREIGHT, 336 U.S. 465 


NO. 65.  ARGUED DECEMBER 8, 1948.  - DECIDED APRIL 4, 1949.  - 166 F.2D
778, REVERSED. 


UNDER PART IV OF THE INTERSTATE COMMERCE ACT AND SPECIFICALLY 49
U.S.C. SEC. 1013, A FREIGHT FORWARDER IS A SHIPPER (RATHER THAN AN
INITIAL CARRIER) VIS-A-VIS THE RAILROADS, AND MUST FILE LOSS OR DAMAGE
CLAIMS AGAINST THEM WITHIN THE NINE-MONTH PERIOD SPECIFIED IN THE
RAILROAD BILL OF LADING.  PP. 466-489. 

1.  THE LANGUAGE AND LEGISLATIVE HISTORY OF SEC. 1013 CLEARLY
INDICATE THAT FORWARDERS WERE NOT GIVEN THE RIGHT-OVER UNDER 49 U.S.C.
SEC. 20(12) AGAINST THE RAILROADS.  PP. 470-476. 

2. A CONTRARY CONSTRUCTION WOULD BE OUT OF HARMONY WITH THE
PREVIOUSLY EXISTING RELATIONSHIP BETWEEN FORWARDERS AND CARRIERS
REGULATED BY PARTS I, II AND III OF THE INTERSTATE COMMERCE ACT, WHICH
RELATIONSHIP PART IV ACCEPTED AND CONTINUED.  PP. 476-479. 

3.  THE FACTORS WHICH MAKE THE CARMACK AMENDMENT WORKABLE AS BETWEEN
CARRIERS ARE TOTALLY ABSENT WHEN THE RIGHT-OVER GIVEN BY 49 U.S.C. SEC.
20(12) IS SOUGHT TO BE EXTENDED TO FREIGHT FORWARDERS.  PP. 479-483. 

4.  EQUITABLE CONSIDERATIONS DO NOT REQUIRE A DIFFERENT RESULT.  PP.
483-489. 

(A)  THE ACT LEAVES FREIGHT FORWARDERS OF THE KIND REGULATED BY PART
IV IN SUBSTANTIALLY THE SAME POSITION THEY PREVIOUSLY HELD WITH RESPECT
TO THEIR LIABILITY TO SHIPPERS AND THEIR RIGHTS AGAINST UNDERLYING
CARRIERS.  PP. 484-487. 

(B)  THAT SEC. 20(11) FORBIDS FORWARDERS TO LIMIT TO LESS THAN NINE
MONTHS THE PERIOD WITHIN WHICH CLAIMS MUST BE FILED BY THEIR SHIPPERS
AND THAT FORWARDERS MUST FILE THEIR CLAIMS AGAINST THE RAILROADS WITHIN
THE SAME PERIOD IS NOT SUFFICIENT TO REQUIRE A DIFFERENT RESULT.  THE
INTERSTATE COMMERCE COMMISSION HAS THE EXPERIENCE AND AUTHORITY TO
PRESCRIBE THE PROPER CORRECTIVE FOR THIS INCONSISTENCY.  PP. 488-489. 

CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. ET AL. V. ACME
FAST FREIGHT, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUIT FOR A DECLARATORY JUDGMENT, A FEDERAL DISTRICT COURT HELD
THAT UNDER 49 U.S.C. SEC. 1013 A FREIGHT FORWARDER MUST FILE LOSS OR
DAMAGE CLAIMS AGAINST A RAILROAD WITHIN THE NINE-MONTH PERIOD SPECIFIED
BY A RAILROAD BILL OF LADING.  THE COURT OF APPEALS REVERSED.  166 F.2D
778.  THIS COURT GRANTED CERTIORARI.  335 U.S. 807.  REVERSED, P. 489. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN 1942, CONGRESS ENACTED WHAT IS POPULARLY KNOWN AS THE FREIGHT
FORWARDER ACT.  THIS LEGISLATION, WHICH APPEARS AS PART IV  FN1  OF THE
INTERSTATE COMMERCE ACT, WAS DESIGNED TO DEFINE FREIGHT FORWARDERS, TO
PRESCRIBE CERTAIN REGULATIONS GOVERNING FORWARDER OPERATIONS, AND TO
BRING THIS ESSENTIAL TRANSPORTATION BUSINESS WITHIN THE CONTROL OF THE
INTERSTATE COMMERCE COMMISSION.  THE LEGISLATIVE AND JUDICIAL HISTORY
CULMINATING IN THE ACT NEED NOT NOW BE DETAILED.  SEE UNITED STATES V.
CHICAGO HEIGHTS TRUCKING CO., 310 U.S. 344(1940); ACME FAST FREIGHT,
INC. V. UNITED STATES, 30 F.SUPP.  968, AFF'D 309 U.S. 638(1940). 

FREIGHT FORWARDERS CONSOLIDATE LESS-THAN-CARLOAD FREIGHT INTO
CARLOADS FOR SHIPMENT BY RAIL, TRUCK, OR WATER.  THEIR CHARGES
APPROXIMATE RAIL LESS-THAN-CARLOAD RATES; THEIR EXPENSES AND PROFITS
ARE DERIVED FROM THE SPREAD BETWEEN THE CARLOAD AND L.C.L. RATES. 
FORWARDERS ARE UTILIZED BY L.C.L. SHIPPERS BECAUSE OF THE SPEED AND
EFFICIENCY WITH WHICH THEY HANDLE SHIPMENTS, THE UNITY OF
RESPONSIBILITY OBTAINED, AND CERTAIN SERVICES WHICH FORWARDERS MAKE
AVAILABLE.  FN2 

FORWARDERS ARE REQUIRED BY SEC. 413 OF THE ACT, 49 U.S.C. SEC. 1013,
TO ISSUE BILLS OF LADING TO THEIR CUSTOMERS, COVERING THE INDIVIDUAL
PACKAGE SHIPMENT FROM TIME OF RECEIPT UNTIL DELIVERY TO THE ULTIMATE
CONSIGNEE.  WHEN THE FREIGHT IS CONSOLIDATED INTO CARLOADS, THE
RAILROAD GIVES THE FORWARDER ITS BILL OF LADING IN WHICH THE FORWARDER
IS DESIGNATED AS BOTH CONSIGNOR AND CONSIGNEE.  THE CONTENTS ARE NOTED
AS "ONE CARLOAD OF MIXED MERCHANDISE" AND USUALLY MOVE UNDER AN "ALL
COMMODITY" CARLOAD RATE.  THE DESTINATION SET OUT IN THE RAILROAD BILL
OF LADING IS THE FORWARDER'S BREAK-BULK POINT.  AT THAT POINT THE
CARLOAD IS BROKEN UP; SOME SHIPMENTS MAY BE DISTRIBUTED LOCALLY, SOME
SENT BY TRUCK TO OFF-LINE DESTINATIONS, AND SOME CONSOLIDATED INTO
CARLOADS FOR RESHIPMENT TO FURTHER BREAKBULK POINTS.  THE RAILROAD HAS
NO KNOWLEDGE OF THE CONTENTS OF THE CAR, THE IDENTITY OF THE INDIVIDUAL
SHIPPERS, OR THE ULTIMATE DESTINATIONS OF THE CONSIGNMENTS.  THE
FORWARDER HAS AN UNQUALIFIED RIGHT TO SELECT THE CARRIER AND ROUTE FOR
THE TRANSPORTATION OF THE FREIGHT. 

THE FORWARDER THUS HAS SOME OF THE CHARACTERISTICS OF BOTH CARRIER
AND SHIPPER.  IN ITS RELATIONS WITH ITS CUSTOMERS, A FORWARDER IS
SUBJECTED BY THE ACT TO MANY OF THE REQUIREMENTS AND REGULATIONS
APPLICABLE TO COMMON CARRIERS UNDER PARTS I, II, AND III OF THE ACT. 
IN ITS RELATIONS WITH THESE CARRIERS, HOWEVER, THE STATUS OF THE
FORWARDER IS STILL THAT OF SHIPPER.  IT IS THIS DUALITY OF CHARACTER
THAT RAISES THE QUESTION IN THIS CASE. 

AS AMENDED, 49 U.S.C. SEC. 20(11)  FN4  AND (12),  FN5  SHALL APPLY TO
FREIGHT FORWARDERS "IN THE CASE OF SERVICE SUBJECT TO THIS CHAPTER"
(PART IV), AND THAT THE FREIGHT FORWARDER SHALL BE DEEMED BOTH THE
RECEIVING AND DELIVERING TRANSPORTATION COMPANY FOR THE PURPOSES OF
SUCH SEC. 20(11) AND (12).  INCORPORATION OF THE CARMACK AMENDMENT
REQUIRES, AS HAS BEEN NOTED, THAT THE FORWARDER ISSUE BILLS OF LADING
TO ITS SHIPPERS, COVERING TRANSPORTATION OF THE INDIVIDUAL SHIPMENTS TO
THEIR ULTIMATE DESTINATIONS.  THERE CAN BE NO QUESTION BUT THAT UNDER
SEC. 20(11), THE FORWARDER IS LIABLE TO ITS SHIPPER FOR LOSS OR DAMAGE
TO THE FREIGHT EXACTLY AS IF IT WERE AN INITIAL CARRIER SUBJECT TO
PARTS I, II, AND III.  WE ARE NOW ASKED TO DECIDE WHETHER THE RIGHT
OVER GIVEN BY SEC. 20(12) TO AN INITIAL CARRIER AGAINST ITS CONNECTING
CARRIERS APPLIES IN THE CASE OF FORWARDERS WHO HAVE PAID LOSS AND
DAMAGE CLAIMS TO THEIR SHIPPERS AND SEEK RECOMPENSE FROM THE CARRIER
RESPONSIBLE FOR THE LOSS. 

IN THIS ACTION, RESPONDENT FREIGHT FORWARDER SOUGHT A DECLARATORY
JUDGMENT THAT IT IS NOT BOUND BY THE NINE-MONTH LIMITATION PERIOD
PROVIDED IN THE RAILROAD BILL OF LADING FOR THE FILING OF LOSS OR
DAMAGE CLAIMS.  IF SEC. 1013, BY ITS INCORPORATION OF SEC. 20(11) AND
(12), MAKES THE FORWARDER AN INITIAL CARRIER WITH A RIGHT-OVER AGAINST
THE CARRIER RESPONSIBLE FOR THE LOSS OR DAMAGE, THE NINE-MONTH PERIOD
IS NOT APPLICABLE.  IF, HOWEVER, THE FORWARDER IS STILL A SHIPPER VIS-A
VIS THE RAILROADS, IT MUST FILE ITS CLAIMS WITHIN THE PERIOD SPECIFIED
IN THE RAILROAD BILL OF LADING.  FN6  THE DISTRICT COURT HELD, ON AN
AGREED STATEMENT OF FACTS, THAT THE FORWARDER MUST FILE ITS CLAIMS
WITHIN THE NINE-MONTH PERIOD.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT REVERSED, HOLDING THAT FOR THE PURPOSES OF SEC. 1013 ALONE
FORWARDERS ARE TO BE CONSIDERED CARRIERS AND AS SUCH ARE ENTITLED TO
THE RIGHT-OVER GIVEN BY SEC. 20(12).  166 F.2D 778.  WE GRANTED THE
PETITION FOR A WRIT OF CERTIORARI, 335 U.S. 807, TO RESOLVE THIS
IMPORTANT QUESTION UNDER PART IV OF THE INTERSTATE COMMERCE ACT. 

FIRST.  THE RAILROADS CONTEND THAT PART IV OF THE ACT WAS NOT
INTENDED TO CHANGE THE SHIPPER-CARRIER RELATIONSHIP THAT HAD FOR MANY
YEARS EXISTED BETWEEN FORWARDER AND RAILROAD.  THEIR POSITION IS THAT
WHILE THE PREVIOUSLY PREVAILING DUTIES AND RESPONSIBILITIES OWED BY THE
FORWARDER TO THE PUBLIC WERE CHANGED BY THE ACT, THE LANGUAGE OF THE
ACT AND ITS LEGISLATIVE HISTORY NEGATIVE THE FORWARDER'S CLAIM TO
CARRIER STATUS.  THEY READ THE LANGUAGE OF SEC. 1013, THAT "THE
PROVISIONS OF SECTION 20(11) AND (12) OF THIS TITLE  ...  SHALL APPLY
WITH RESPECT TO FREIGHT FORWARDERS, IN THE CASE OF SERVICE SUBJECT TO
THIS CHAPTER  ...  ," TO MEAN THAT, WHILE THE FORWARDER IS LIABLE TO
ITS SHIPPERS UNDER SEC. 20(11) FOR LOSS OR DAMAGE NO MATTER WHOSE THE
ULTIMATE RESPONSIBILITY, ITS RIGHT-OVER UNDER SEC. 20(12) IS LIMITED TO
LOSSES OR DAMAGE OCCURRING IN "SERVICE SUBJECT TO THIS CHAPTER" - I.E.,
IN THE BUSINESS OF FORWARDING FREIGHT.  THUS LIMITED, THE RIGHT-OVER
WOULD APPLY AS AGAINST OTHER FREIGHT FORWARDERS WITH WHOM JOINT LOADING
AGREEMENTS AUTHORIZED BY SEC. 1004(D) WERE IN EFFECT, AND AGAINST MOTOR
CARRIERS WHO ARE PERMITTED BY SEC. 1013 TO ISSUE BILLS OF LADING ON
BEHALF OF THE FORWARDERS.  THE RIGHT-OVER WOULD NOT, HOWEVER, APPLY
AGAINST RAILROADS, WATER CARRIERS, AND LINE-HAUL MOTOR CARRIERS. 

"SERVICE SUBJECT TO THIS CHAPTER" IS DEFINED IN SEC. 1002 AS "ANY OR
ALL OF THE SERVICE IN CONNECTION WITH THE TRANSPORTATION IN INTERSTATE
COMMERCE WHICH ANY PERSON UNDERTAKES TO PERFORM OR PROVIDE AS A FREIGHT
FORWARDER  ...  "  WHILE USE OF THE WORD, "PROVIDE," LENDS SOME SUPPORT
TO RESPONDENT'S THESIS THAT THE DEFINITION SHOULD BE READ BROADLY TO
INCLUDE THE SERVICE PERFORMED BY COMMON CARRIERS FOR THE FORWARDERS,
THE HOUSE COMMITTEE REPORT INDICATES THE CONTRARY.  IT DEFINES "SERVICE
SUBJECT TO THIS CHAPTER" AS: 

"THE TERM USED THROUGHOUT PART IV WHEN REFERRING TO THE BUSINESS OR
OPERATIONS OF FREIGHT FORWARDERS WHICH IT IS PROPOSED TO REGULATE.  THE
DEFINITION IS INTENDED TO BE BROAD ENOUGH TO COVER EVERYTHING THE
FREIGHT FORWARDER DOES, IN CONNECTION WITH FORWARDING BY SURFACE
FACILITIES, IN THE COURSE OF CARRYING OUT HIS UNDERTAKING TO THE
SHIPPER WHOM HE SERVES.  ON THE OTHER HAND, IT IS NOT BROAD ENOUGH, OF
COURSE, TO BRING UNDER REGULATION, UNDER PART IV, THE SERVICE PERFORMED
BY THE CARRIERS WHOSE SERVICES THE FREIGHT FORWARDER UTILIZES IN
PERFORMING HIS UNDERTAKING."  FN7 

THE EMPHASIS SUPPLIED BY THE PHRASE IS EMPHASIS ON THE FREIGHT
FORWARDER'S ACTIVITIES, NOT UPON THE SERVICE PERFORMED BY UNDERLYING
CARRIERS.  SINCE THE FORWARDER CONTRACTS WITH ITS SHIPPER TO DELIVER
THE SHIPMENT SAFELY TO ITS ULTIMATE DESTINATION, ITS UNDERTAKING IS
OBVIOUSLY PART OF THE "SERVICE SUBJECT TO THIS CHAPTER."  BUT INCLUSION
OF THAT PHRASE IN SEC. 1013 INDICATES A LIMITATION OF APPLICABILITY OF
THE RIGHT-OVER UNDER SEC. 20(12) TO THE FORWARDER'S BUSINESS, WHICH, WE
ARE TOLD BY THE HOUSE REPORT, DOES NOT INCLUDE "THE SERVICE PERFORMED
BY THE CARRIERS WHOSE SERVICES THE FREIGHT FORWARDER UTILIZES IN
PERFORMING HIS UNDERTAKING." 

THE IMPORTANCE OF THE PHRASE, "SERVICE SUBJECT TO THIS CHAPTER," IN
THE FREIGHT FORWARDER ACT IS ACCENTUATED BY A CONTEMPORANEOUS AMENDMENT
TO PART II OF THE INTERSTATE COMMERCE ACT, WHICH PERTAINS TO MOTOR
CARRIERS.  THE MOTOR CARRIER ACT HAD MADE SEC. 20(11) APPLICABLE TO
MOTOR CARRIERS BUT HAD OMITTED SEC. 20(12).  AS A PART OF THE FREIGHT
FORWARDER LEGISLATION, CONGRESS AMENDED SEC. 219 OF THE INTERSTATE
COMMERCE ACT TO MAKE SEC. 20(12) APPLICABLE TO MOTOR CARRIERS.  IT DID
SO WITHOUT INCLUDING THE QUALIFYING PHRASE.  THE AMENDMENT READS
SIMPLY: 

"SEC. 219.  THE PROVISIONS OF SECTION 20(11) AND (12) OF THIS ACT,
TOGETHER WITH SUCH OTHER PROVISIONS OF SUCH PART (INCLUDING PENALTIES)
AS MAY BE NECESSARY FOR THE ENFORCEMENT OF SUCH PROVISIONS, SHALL APPLY
WITH RESPECT TO COMMON CARRIERS BY MOTOR VEHICLE WITH LIKE FORCE AND
EFFECT AS IN THE CASE OF THOSE PERSONS TO WHICH SUCH PROVISIONS ARE
SPECIFICALLY APPLICABLE."  56 STAT. 300. 

UNLESS WE ARE TO ASSUME THAT CONGRESS, IN ENACTING SEC. 1013,
INCLUDED THE PHRASE, "IN THE CASE OF SERVICE SUBJECT TO THIS CHAPTER,"
FOR NO PURPOSE WHATSOEVER, WHILE AT THE SAME TIME APPROVING A SIMILAR
THE EFFECT CONTENDED FOR BY PETITIONERS.  RESPONDENT SUGGESTS NO
OTHER. 

THAT MEANING IS SUPPORTED BY THE EXPLANATION OF SEC. 1013 GIVEN BY
REPRESENTATIVE WOLVERTON, A MEMBER OF THE COMMITTEE WHICH DRAFTED THE
INTERPRETATION BY A CONTRARY STATEMENT IN THE HOUSE COMMITTEE REPORT. 
THIS REPORT STATES FLATLY THAT "IN CASE THE LOSS OF OR DAMAGE TO THE
PROPERTY TRANSPORTED OCCURS ON THE LINE OF A CARRIER WHOSE SERVICE THE
FREIGHT FORWARDER UTILIZES, THE FREIGHT FORWARDER WILL HAVE THE RIGHT
OF SUBROGATION AGAINST THE CARRIER UNDER SECTION 20(12)."  FN8 

WE ARE WARNED, HOWEVER, THAT THE REPORT IS TO BE DISCOUNTED IN SOME
PARTICULARS.  REPRESENTATIVE WOLVERTON PREFACED HIS SECTION-BY-SECTION
ANALYSIS OF THE BILL WITH THIS SIGNIFICANT STATEMENT: 

"IN SOME RESPECTS THE REPORT WHICH ACCOMPANIES THIS BILL IS NOT AS
COMPLETE AS IT MIGHT BE.  DUE TO LIMITATIONS OF TIME THE REPORT WAS NOT
SUBMITTED TO THE MEMBERS OF THE COMMITTEE OR SUBCOMMITTEE, AND
THEREFORE IT MAY NOT BE OUT OF PLACE TO INCLUDE IN THESE REMARKS SOME
FURTHER EXPLANATIONS WHICH MAY BE HELPFUL TO THE MEMBERS IN THEIR
CONSIDERATION OF THE MEASURE.  IN A FEW INSTANCES, WHICH WILL BE
MENTIONED LATER, THE REPORT MAY NOT BE SO PHRASED AS TO CONVEY FULLY
THE SENSE OF WHAT WAS INTENDED."  FN9 

THAT HE HAD SEC. 1013 SPECIFICALLY IN MIND IS CLEARLY SHOWN BY HIS
REMARKS EXPLAINING THAT SECTION: 

"IN ITS EXPLANATION OF SECTION 413(SEC.  1013), THE REPORT WHICH
ACCOMPANIED THE BILL IS NOT STRICTLY ACCURATE IN INTERPRETING THE
INTENDED LEGAL EFFECT OF MAKING SECTION 20(11) AND (12) OF PART I
APPLICABLE TO FREIGHT FORWARDERS.  IT SHOULD BE UNDERSTOOD THAT,
INSOFAR AS A GIVEN SERVICE TO ITS SHIPPER IS COVERED BY THE PUBLISHED
RATE OF A FREIGHT FORWARDER, THE LATTER IS THE ONLY PERSON TO WHICH
SUCH SHIPPER IS ENTITLED TO LOOK FOR RECOVERY OF DAMAGES, AND IT IS IN
THIS SENSE THAT THE FORWARDER IS TO 'BE DEEMED BOTH THE RECEIVING AND
DELIVERING TRANSPORTATION COMPANY.'  IF DAMAGE TO A SHIPMENT OCCURS ON
THE LINE OF A COMMON CARRIER WHOSE SERVICES ARE BEING UTILIZED BY THE
FORWARDER, THE FORWARDER HAS NO RIGHT OF SUBROGATION UNDER SECTION
20(12), SINCE ITS OWN SHIPPER NEVER HAD ANY RIGHT OF ACTION AGAINST
SUCH CARRIER.  THE FORWARDER'S RECOVERY AGAINST THE CARRIER WOULD BE
UPON THE BILL OF LADING ISSUED TO IT BY SUCH CARRIER AND UNDER THE
PROVISIONS OF LAW APPLICABLE THERETO.  THE REFERENCE TO PARAGRAPH (12)
OF SECTION 20 WAS INCLUDED IN SECTION 413(SEC.  1013) TO COVER A
COMBINATION OF SERVICES PERFORMED DIRECTLY FOR THE OWNER OF THE GOODS,
SUCH AS WOULD OCCUR WHERE THE SERVICES OF TWO OR MORE FORWARDERS WERE
INVOLVED."  FN10 

IN WEIGHING THE RELATIVE IMPORTANCE OF THIS STATEMENT AND THE
COMMITTEE REPORT, A NUMBER OF ADDITIONAL FACTS ASSUME IMPORTANCE.  THE
BILL UNDER CONSIDERATION WAS REPORTED UNANIMOUSLY BY THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE.  FN11  CONGRESSMAN
WOLVERTON, WHO WAS THE RANKING MINORITY MEMBER OF THE COMMITTEE, SPOKE
IN BEHALF OF THE BILL AND PRESENTED THE ONLY EXTENDED EXPOSITION OF ITS
PROVISIONS.  HIS EXPLANATION OF ITS MEANING WAS NOT CHALLENGED OR
CONTRADICTED BY ANY MEMBER OF THE COMMITTEE.  ON THE CONTRARY, HIS PART
IN ITS DRAFTING WAS RECOGNIZED BY THE CHAIRMAN OF THE COMMITTEE,  FN12
AND HIS REMARKS HAVE BEEN QUOTED AS AUTHORITY BY THE INTERSTATE
COMMERCE COMMISSION.  FN13    IN THIS POSTURE OF EVENTS, THE COMMITTEE
REPORT CAN BE GIVEN LITTLE WEIGHT.  A REPORT NOT PREVIOUSLY SUBMITTED
TO MEMBERS OF THE COMMITTEE AND EXPRESSLY CONTRADICTED WITHOUT
CHALLENGE ON THE FLOOR OF THE HOUSE BY A RANKING MEMBER OF THE
COMMITTEE CAN HARDLY BE CONSIDERED AUTHORITATIVE.  THE COMMITTEE OF
CONFERENCE, OF WHICH REPRESENTATIVE WOLVERTON WAS A MEMBER, ADOPTED
SEC. 1013 EXACTLY AS IT APPEARED IN THE HOUSE AMENDMENT.  IT BORE, AT
THAT TIME, THE GLOSS PLACED UPON IT ON THE FLOOR OF THE HOUSE.  FN14
UNDER THOSE CIRCUMSTANCES, WE CANNOT CONSTRUE THE STATUTE TO GIVE
FORWARDERS THE RIGHT-OVER AGAINST UNDERLYING CARRIERS UNDER SEC.
20(12). 

SECOND.  SUCH A CONSTRUCTION WOULD, MOREOVER, BE OUT OF HARMONY WITH
THE PREVIOUSLY EXISTING RELATIONSHIP BETWEEN FORWARDERS AND CARRIERS
REGULATED BY PARTS I, II, AND III OF THE INTERSTATE COMMERCE ACT, A
RELATIONSHIP WHICH PART IV UNQUESTIONABLY ACCEPTED AND CONTINUED. 
PRIOR TO THE ENACTMENT OF THE FORWARDER ACT, THIS COURT HELD IN A
NUMBER OF CASES THAT FORWARDERS ARE SHIPPERS INSOFAR AS CARRIERS ARE
CONCERNED, AND THAT THE LATTER CANNOT DISCRIMINATE IN FAVOR OF OR
AGAINST FORWARDERS, NOR ENTER INTO JOINT OR PROPORTIONAL RATES WITH
THEM ABSENT LEGISLATIVE AUTHORITY.  INTERSTATE COMMERCE COMMISSION V.
DELAWARE, L. & W.R. CO., 220 U.S. 235(1911); GREAT NORTHERN R. CO. V.
O'CONNOR, 232 U.S. 508(1914); LEHIGH VALLEY R. CO. V. UNITED STATES,
243 U.S. 444(1917); UNITED STATES V. CHICAGO HEIGHTS TRUCKING CO.,
SUPRA; ACME FAST FREIGHT V. UNITED STATES, SUPRA. 

IT IS CLEAR THAT THIS RELATIONSHIP WAS NOT ALTERED BY THE ENACTMENT
OF PART IV.  NOWHERE IN THE ACT ARE FREIGHT FORWARDERS REFERRED TO AS
CARRIERS.  CONGRESS DEFINED THE TERM "FREIGHT FORWARDER" IN SEC.
1002(5) TO MEAN ANY PERSON WHICH "OTHERWISE THAN AS A CARRIER SUBJECT
TO" PART I, II, OR III OF THIS TITLE CONSOLIDATES GOODS FOR SHIPMENT,
ETC.  IN ONE SECTION WHERE, BY INADVERTENCE, FORWARDERS WERE REFERRED
TO AS CARRIERS, AN AMENDMENT WAS PASSED LESS THAN TWO MONTHS LATER
STRIKING OUT "CARRIER" AND SUBSTITUTING "FREIGHT FORWARDER."  FN15  THE
STATEMENTS BY COMMITTEE MEMBERS ON THE FLOOR OF THE HOUSE  FN16  LEAVE
NO DOUBT THAT IT WAS NOT THE INTENT OF CONGRESS TO ALTER THE
FORWARDERS' STATUS AS SHIPPERS VIS-A-VIS CARRIERS BY RAIL, HIGHWAY, AND
WATER. 

THE FACT THAT CONGRESS STUDIOUSLY AVOIDED CHARACTERIZING FORWARDERS
AS CARRIERS, WHILE AT THE SAME TIME SUBJECTING THEM TO MANY OF THE
DUTIES AND RESPONSIBILITIES OF SUCH CARRIERS, SERVES TO EMPHASIZE THE
DISTINCTION DRAWN BY THE ACT.  THE REASON FOR THIS DISTINCTION HAS
ALREADY BEEN SUGGESTED.  IN THEIR RELATIONS WITH SHIPPERS, FORWARDERS
UNQUESTIONABLY PERFORM FUNCTIONS AND HAVE DUTIES SIMILAR TO THE
FUNCTIONS AND DUTIES OF COMMON CARRIERS.  THEIR ACTIVITIES ARE NOT
ESSENTIALLY DIFFERENT FROM THOSE OF EXPRESS COMPANIES, WHICH ARE COMMON
CARRIERS BY DEFINITION, UNDER SEC. 1(3) OF THE INTERSTATE COMMERCE ACT,
49 U.S.C. SEC. 1(3).  NEVERTHELESS, CONGRESS RECOGNIZED THAT FORWARDERS
OCCUPY A DIFFERENT POSITION IN THEIR DEALINGS WITH THE CARRIERS WHOSE
SERVICES THEY UTILIZE.  FN17  FOR THAT REASON, THEY REFUSED TO SANCTION
THE JOINT RATES THAT FORWARDERS HAD ESTABLISHED WITH CERTAIN MOTOR
CARRIERS.  SEE ACME FAST FREIGHT, INC. V. UNITED STATES, SUPRA.
ACCORDING TO REPRESENTATIVE WOLVERTON'S STATEMENT ON THE FLOOR OF THE
HOUSE, "IT WOULD BE ILLOGICAL AND ANOMALOUS TO PERMIT THE MAKING OF SO
CALLED JOINT RATES IN SUCH A SITUATION.  THE MAINTENANCE OF A JOINT
RATE BY A CARRIER AND A SHIPPER WOULD BE AN ABSURDITY.  IF NEVERTHELESS
PERMITTED, IT WOULD ENABLE SUCH SHIPPER TO RECEIVE REBATES THROUGH THE
MEDIUM OF DIVISIONS OF THE JOINT RATE."  FN18  CARRIERS SUBJECT TO
PARTS I, II, AND III WERE PERMITTED BY SEC. 1008 TO ESTABLISH SO-CALLED
"ASSEMBLING AND DISTRIBUTION" RATES, WHICH WERE DESIGNED TO GIVE THE
FORWARDER THE BENEFIT OF RATES LOWER THAN THOSE AVAILABLE TO OTHER
SHIPPERS, BECAUSE OF SAVINGS TO THE CARRIERS EFFECTED BY SOME SERVICES
PERFORMED BY THE FORWARDER.  THIS WAS THOUGHT TO BE CONSISTENT WITH THE
POSITION OF THE FORWARDER AS SHIPPER, HOWEVER, AND SUCH RATES COULD NOT
BE LOWERED BEYOND AN AMOUNT WHICH WOULD REFLECT THE SAVINGS.  IT IS
SIGNIFICANT, TOO, THAT THESE RATES WERE NOT APPLICABLE TO LINE-HAUL OR
CARLOAD FREIGHT, BUT ONLY TO THE SERVICES PERFORMED BY CARRIERS IN
BRINGING LESS-THAN-CARLOAD SHIPMENTS FROM OFF-LINE POINTS TO THE
FORWARDER'S CONCENTRATION POINT AND FROM BREAK-BULK POINT TO FINAL
DESTINATION N19.  IT IS THEREFORE CLEAR BEYOND ARGUMENT THAT CONGRESS
INTENDED TO PRESERVE THE EXISTING SHIPPER-CARRIER RELATIONSHIP BETWEEN
FORWARDERS AND THOSE CARRIERS REGULATED BY PARTS I, II, AND III OF THE
ACT. 

THIRD.  THE COURT OF APPEALS, WHILE CONCEDING THAT FORWARDERS ARE
STILL SHIPPERS VIS-A-VIS CARRIERS UNDER THE ACT, HELD THAT FOR THE
PURPOSES OF SEC. 1013 ALONE, THEY ARE TO BE REGARDED AS INITIAL
CARRIERS, WHILE THE RAILROADS, MOTOR VEHICLES, AND BOATS WHOSE SERVICES
ARE UTILIZED BY FORWARDERS ARE TO BE CONSIDERED CONNECTING CARRIERS. 
RESPONDENT GOES FARTHER.  IT CONTENDS NOT ONLY THAT THE LIABILITY
PROVISIONS OF THE UNIFORM RAIL BILL OF LADING ISSUED TO THE FORWARDER
FOR HIS CARLOAD SHIPMENT MAY BE DISREGARDED, BUT THAT THE RAILROAD NEED
NOT ISSUE ITS BILL OF LADING AT ALL.  IN ITS VIEW, MISSOURI, KANSAS &
TEXAS R. CO. V. WARD, 244 U.S. 383(1917), WHICH STRUCK DOWN CONDITIONS
IN THE BILL OF LADING ISSUED WITHOUT CONSIDERATION BY A CONNECTING
CARRIER, IS DECISIVE OF THE INVALIDITY OF THE CONDITIONS IMPOSED BY THE
RAIL BILL OF LADING HERE IN CONTROVERSY. 

WE DO NOT AGREE, NOR CAN WE BELIEVE THAT THE CONTENTION IS SERIOUSLY
MADE.  THE UNDERLYING CARRIER'S HAUL INVOLVES A DIFFERENT SHIPMENT, A
DIFFERENT CONSIDERATION, A DIFFERENT ORIGIN, A DIFFERENT DESTINATION,
AND A DIFFERENT CONSIGNOR AND CONSIGNEE THAN ARE INVOLVED IN THE
FORWARDER'S UNDERTAKING.  FURTHERMORE, RESPONDENT'S CONTENTION LEADS TO
THE CONCLUSION THAT RAILROADS, WHOSE BILLS OF LADING HAVE LONG BEEN
PRESCRIBED BY THE I.C.C. AND FILED WITH RAIL TARIFFS, MUST TRANSPORT
FREIGHT ON BILLS OF LADING SUBJECT TO CHANGE AT WILL BY THE FORWARDER
AND POSSIBLY DIFFERENT IN MANY RESPECTS FROM THE UNIFORM RAIL BILL. 
SEE E.G., CHAIN DELIVERIES EXPRESS, INC., 260 I.C.C. 149, 151(1943). 
THAT CERTAINLY HAS NOT BEEN THE POSITION TAKEN BY THE I.C.C. SINCE
ENACTMENT OF PART IV,  FN20  NOR WAS THE CONTENTION ACCEPTED BY EITHER
OF THE COURTS BELOW IN THIS CASE. 

THE REAL ISSUE IS WHETHER, GRANTING THAT BOTH FORWARDER AND
UNDERLYING CARRIER MUST ISSUE BILLS OF LADING, THE LIABILITY PROVISIONS
OF BILLS ISSUED BY THE LATTER ARE TO BE CONSIDERED NULL AND VOID WHEN
FORWARDER FREIGHT IS BEING HAULED.  WE THINK THAT THE WHOLE SCHEME OF
THE ACT, ITS LANGUAGE AND HISTORY, NEGATIVE THAT PROPOSITION.  AS HAS
BEEN NOTED, THE FORWARDER REMAINS A SHIPPER IN ITS RELATIONS WITH
UNDERLYING CARRIERS UNDER THE ACT.  IT IS A SHIPPER TO WHOM CARRIERS
ARE FORBIDDEN TO GIVE ANY UNDUE OR UNREASONABLE PREFERENCE IN ANY
RESPECT WHATSOEVER, UNDER THE SPECIFIC PROVISIONS OF THE ACT.  SEC.
1004(C).  ON THE OTHER HAND, FORWARDERS, LIKE OTHER SHIPPERS, MAY
DISCRIMINATE AS THEY CHOOSE BETWEEN CARRIERS.  SEC. 1004(B). 

IF THE LIABILITY PROVISIONS OF THE CARRIER BILL OF LADING ARE
INAPPLICABLE, OTHER DIFFICULTIES ARE PRESENTED.  SINCE THEY ARE NOT
BOUND TO USE THE UNIFORM BILL OF LADING, FORWARDERS MAY ADOPT A
LIMITATION PERIOD FOR THE SUBMISSION OF CLAIMS LONGER THAN NINE MONTHS,
THE MINIMUM PERIOD PERMITTED BY SEC. 20(11).  SINCE THE RAIL BILL OF
LADING, WHICH PRESCRIBES A NINE-MONTH PERIOD, WOULD APPLY TO ALL
SHIPPERS OTHER THAN SHIPPERS BY FREIGHT FORWARDER, THE FORMER WOULD
THUS BE DISCRIMINATED AGAINST CONTRARY TO SEC. 1004(C). 

SIMILARLY, A SHIPPER BY FREIGHT FORWARDER MIGHT WISH TO CONTRACT FOR
COMMON-LAW LIABILITY BY PAYING THE HIGHER TARIFF TO THE FORWARDER, AS
HE MUST BE PERMITTED TO DO UNDER SEC. 20(11).  CINCINNATI, N.O. &
T.P.R. CO. V. RANKIN, 241 U.S. 319(1916).  THE FORWARDER, ON THE OTHER
HAND, PAYS THE LOWER DECLARED VALUE RATE TO THE RAILROAD FOR THE
CARLOAD SHIPMENT.  IF THE SHIPMENT WERE LOST OR DAMAGED, THE SHIPPER
COULD UNDOUBTEDLY RECOVER ITS ACTUAL VALUE FROM THE FORWARDER, BUT
UNDER ORDINARY CIRCUMSTANCES THE LATTER WOULD BE CONFINED TO RECOVERY
FROM THE RAILROAD OF A PROPORTIONAL PART OF THE DECLARED VALUE OF THE
CARLOAD SHIPMENT.  SECTION 20(12) PROVIDES, HOWEVER, THAT THE RIGHT
OVER IS IN THE AMOUNT OF THE LOSS, DAMAGE, OR INJURY AS MAY BE
EVIDENCED BY ANY RECEIPT, JUDGMENT, OR TRANSCRIPT THEREOF.  UNDER
RESPONDENT'S THEORY, ITS BILL OF LADING WOULD BE CONTROLLING, AND THE
FORWARDER WOULD BE ENTITLED TO FULL RECOVERY DESPITE THE FACT THAT IT
HAD CONTRACTED WITH THE CARRIER AT THE REDUCED RATE.  THIS RESULT IS
CLEARLY CONTRARY TO GREAT NORTHERN R. CO. V. O'CONNOR, SUPRA, WHICH WAS
RELIED ON BY THE COURT OF APPEALS IN THE PRESENT CASE. 

IN ADDITION, THE FACTORS WHICH CONGRESS FELT MADE THE ORIGINAL
CARMACK AMENDMENT WORKABLE ARE TOTALLY ABSENT IN THE CASE OF FREIGHT
FORWARDERS.  CONGRESSMAN RICHARDSON, IN EXPLAINING ITS PURPOSE TO THE
HOUSE, SAID: 

"THE REASONS INDUCING US TO DO THAT (MAKE THE INITIAL CARRIER LIABLE
FOR LOSS OR DAMAGE) WAS THAT THE INITIAL CARRIER HAS A THROUGH-ROUTE
CONNECTION WITH THE SECONDARY CARRIER, ON WHOSE ROUTE THE LOSS
OCCURRED, AND A SETTLEMENT BETWEEN THEM WILL BE AN EASY MATTER, WHILE
THE SHIPPER WOULD BE AT HEAVY EXPENSE IN THE INSTITUTION OF A SUIT.  IF
A JUDGMENT IS OBTAINED AGAINST THE INITIAL CARRIER, NO DOUBT EXISTS BUT
THE SECONDARY CARRIER WOULD PAY IT AT ONCE.  WHY?  BECAUSE THE
ARRANGEMENT, THE CONCERT, THE COOPERATION, THE THROUGH-ROUTE COURTESIES
BETWEEN THEM WOULD BE BROKEN UP IF PROMPT PAYMENT WAS NOT MADE.  WE
HAVE DONE THAT IN CONFERENCE."  FN21  SEE ATLANTIC COAST LINE R. CO. V.
RIVERSIDE MILLS, 219 U.S. 186, 201(1911). 

THE RAILROADS HAVE DONE EXACTLY AS WAS SUGGESTED.  ELABORATE FREIGHT
CLAIM RULES HAVE BEEN ESTABLISHED COVERING THE INVESTIGATION,
SETTLEMENT, AND DEFENSE OF CLAIMS AND THE ALLOCATION OF LIABILITY
BETWEEN CARRIERS WHEN, AS IS FREQUENTLY THE CASE, RESPONSIBILITY FOR
LOSS OR DAMAGE CANNOT BE PRECISELY ASCERTAINED.  ARBITRATION BOARDS
SETTLE DISPUTES ARISING BETWEEN CARRIERS UNDER THE RULES.  AS A
PRACTICAL MATTER, THE RIGHT-OVER GIVEN BY SEC. 20(12) IS VERY LITTLE
USED BY CARRIERS, AND INDEED IT IS OF NO VALUE WHEN RESPONSIBILITY
CANNOT DEFINITELY BE PLACED UPON ANY ONE CARRIER. 

THE CONSIDERATIONS THAT MADE SEC. 20(12) WORKABLE AS APPLIED TO
RAILROADS ARE NOT, HOWEVER, APPLICABLE TO FREIGHT FORWARDERS.  THEY
ENTER INTO NO "ARRANGEMENTS," "CONCERTS," "COOPERATION," OR "THROUGH
ROUTE COURTESIES" WITH RAILROADS.  AS SHIPPERS THEY ARE FORBIDDEN BY
LAW TO DO SO. FURTHERMORE, THE FORWARDER WILL ALWAYS BE IN THE POSITION
OF A RECEIVING OR DELIVERING CARRIER SEEKING THE RIGHT-OVER AGAINST
"CONNECTING" CARRIERS, NEVER IN THE POSITION OF A CARRIER AGAINST WHOM
THE RIGHT-OVER IS ASSERTED.  A RAILROAD AGAINST WHICH A CLAIM HAS BEEN
FILED AS RECEIVING OR DELIVERING CARRIER WILL ORDINARILY REPRESENT THE
CONNECTING CARRIER AS IF NO RIGHT-OVER EXISTED, SINCE IT MUST DEPEND IN
OTHER CASES UPON SIMILAR REPRESENTATION BY OTHER ROADS.  DETAILS OF
SUCH REPRESENTATION ARE, IN FACT, PRESCRIBED BY THE FREIGHT CLAIM
RULES, WHICH ARE SUBSCRIBED TO BY NEARLY ALL RAILROADS.  BUT THE
FORWARDER IS ALWAYS ITS OWN REPRESENTATIVE, AND AS BETWEEN ITS
CUSTOMER, THE SHIPPER, AND AN UNDERLYING CARRIER ALLEGEDLY RESPONSIBLE
FOR LOSS OR DAMAGE, THE FORWARDER'S TENDENCY WOULD NATURALLY BE TO
PLACATE THE FORMER AT THE EXPENSE OF THE LATTER IF THE RIGHT-OVER
EXISTED AND WAS APPLICABLE.  THESE FACTS ARE, WE FEEL, PERSUASIVE THAT
CONGRESS MEANT THE RIGHT-OVER GIVEN IN SEC. 1013 TO EXTEND NO FARTHER
THAN TO ACTIONS AGAINST THOSE WITH WHOM FORWARDERS ARE PERMITTED TO
ENTER INTO COOPERATIVE ARRANGEMENTS - I.E., AGAINST THOSE TO WHOM THE
FORWARDER DOES NOT BEAR THE RELATION OF SHIPPER. 

FOURTH.  TWO ARGUMENTS ARE MADE AS TO THE INEQUITY THAT WILL RESULT
FROM REQUIRING FORWARDERS TO COMPLY WITH THE REQUIREMENTS OF SEC.
20(11) WITHOUT GIVING THEM THE RIGHTS OF INITIAL CARRIERS UNDER SEC.
20(12).  IT IS SAID THAT CONGRESS COULD NOT HAVE INTENDED TO MAKE THE
FORWARDER AN INSURER OF FREIGHT WHILE REQUIRING AT THE SAME TIME THAT
IT FILE AND PROVE CLAIMS AGAINST CARRIERS AS IF IT WERE AN ORDINARY
SHIPPER.  SECONDLY, IT IS ARGUED THAT THE FORWARDER MUST, UNDER SEC.
20(11), ALLOW AT LEAST NINE MONTHS FOR THE FILING OF CLAIMS BY
SHIPPERS, AND IF THE FORWARDER IS SUBJECT TO A SIMILAR LIMITATION
PERIOD, THERE WILL NECESSARILY BE SOME CLAIMS FILED BY SHIPPERS AT THE
END OF THE PERIOD WHICH THE FORWARDER WILL NOT BE ABLE TO REFILE
AGAINST THE CARRIER IN TIME. 

THE FIRST CONTENTION IS THE RESULT OF A SERIOUS MISCONCEPTION AS TO
THE LIABILITY OF FREIGHT FORWARDERS PRIOR TO ENACTMENT OF PART IV.
THIS MISCONCEPTION IS BASED ON A FAILURE TO DISTINGUISH BETWEEN TWO
VERY DIFFERENT KINDS OF "FORWARDERS."  FN22  THE TERM WAS ORIGINALLY
APPLIED TO PERSONS WHO ARRANGE FOR THE TRANSPORTATION BY COMMON CARRIER
OF THE SHIPPER'S GOODS.  THE FORWARDER DID NOT NECESSARILY CONSOLIDATE
THE INDIVIDUAL CONSIGNMENTS INTO CARLOAD LOTS, AND ITS DUTIES, AS AGENT
OF THE SHIPPER, WENT NO FARTHER THAN PROCURING TRANSPORTATION BY
CARRIER AND HANDLING THE DETAILS OF SHIPMENT.  FORWARDERS OF THIS TYPE
CHARGED FEES FOR THEIR SERVICES, WHICH THE SHIPPER PAID IN ADDITION TO
THE FREIGHT CHARGES OF THE CARRIER UTILIZED FOR THE ACTUAL
TRANSPORTATION. 

LATER, A DIFFERENT TYPE OF FORWARDING SERVICE WAS OFFERED.  THIS
FORWARDER PICKED UP THE LESS-THAN-CARLOAD SHIPMENT AT THE SHIPPER'S
PLACE OF BUSINESS AND ENGAGED TO DELIVER IT SAFELY AT ITS ULTIMATE
DESTINATION.  THE FREIGHT FORWARDER CHARGED A RATE COVERING THE ENTIRE
TRANSPORTATION AND MADE ITS PROFIT BY CONSOLIDATING THE SHIPMENT WITH
OTHERS IN CARLOAD QUANTITIES TO TAKE ADVANTAGE OF THE SPREAD BETWEEN
CARLOAD AND L.C.L. RATES.  IT HELD ITSELF OUT NOT MERELY TO ARRANGE
WITH COMMON CARRIERS FOR THE TRANSPORTATION OF THE GOODS, BUT RATHER TO
DELIVER THEM SAFELY TO THE CONSIGNEE.  THE SHIPPER SELDOM IF EVER KNEW
WHICH CARRIER WOULD BE UTILIZED IN THE CARRIAGE OF HIS SHIPMENT. 
THIS DIFFERENCE IN FUNCTION WAS RECOGNIZED VERY EARLY BY THE COURTS,
AND DIFFERING STANDARDS OF LIABILITY WERE IMPOSED.  WHEN GOODS HANDLED
BY AN AGENT-FORWARDER WERE LOST OR DAMAGED, IT WAS LIABLE TO THE
SHIPPER ONLY FOR ITS OWN NEGLIGENCE, INCLUDING NEGLIGENCE IN SELECTING
A CARRIER.  FN23  IF, ON THE OTHER HAND, THE SHIPMENT HAD BEEN
ENTRUSTED TO A FORWARDER OF THE SECOND TYPE - I.E., ONE WHO CONTRACTED
TO DELIVER THE GOODS TO THE CONSIGNEE AT RATES SET BY ITSELF - THE
FORWARDER WAS SUBJECTED TO COMMON CARRIER LIABILITY FOR LOSS OR DAMAGE
WHETHER IT OR AN UNDERLYING CARRIER HAD BEEN AT FAULT.  FN24  THE FACT
THAT THE FORWARDER DID NOT OWN THE CARRIERS WHOSE SERVICES IT UTILIZED
WAS HELD TO BE IMMATERIAL.  ITS UNDERTAKING WAS TO DELIVER THE SHIPMENT
SAFELY AT THE DESTINATION.  COMMON CARRIER LIABILITY WAS THE PENALTY
FOR FAILURE OF FULFILMENT OF THAT UNDERTAKING. 

THE FREIGHT FORWARDER ACT ENCOMPASSES ONLY THE SECOND TYPE OF
FORWARDER DESCRIBED ABOVE.  SECTION 1002(A)(5) DEFINES "FREIGHT
FORWARDER" AS 

"ANY PERSON WHICH  ...  HOLDS ITSELF OUT TO THE GENERAL PUBLIC TO
TRANSPORT OR PROVIDE TRANSPORTATION OF PROPERTY  ...  AND WHICH, IN THE
ORDINARY AND USUAL COURSE OF ITS UNDERTAKING, (A) ASSEMBLES AND
CONSOLIDATES OR PROVIDES FOR ASSEMBLING AND CONSOLIDATING SHIPMENTS OF
SUCH PROPERTY, AND PERFORMS OR PROVIDES FOR THE PERFORMANCE OF BREAK
BULK AND DISTRIBUTING OPERATIONS WITH RESPECT TO SUCH CONSOLIDATED
SHIPMENTS, AND (B) ASSUMES RESPONSIBILITY FOR THE TRANSPORTATION OF
SUCH PROPERTY FROM POINT OF RECEIPT TO POINT OF DESTINATION, AND (C)
UTILIZES, FOR THE WHOLE OR ANY PART OF THE TRANSPORTATION OF SUCH
SHIPMENTS, THE SERVICES OF A CARRIER OR CARRIERS SUBJECT TO CHAPTERS 1,
8, OR 12 OF THIS TITLE."  FN25 

AS TO THIS GROUP, AS HAS BEEN POINTED OUT, THE LIABILITY OF COMMON
CARRIER TO ITS SHIPPERS HAS ALWAYS BEEN THE RULE.  BY MAKING SEC.
20(11) APPLICABLE TO THESE FORWARDERS, CONGRESS DID TWO THINGS:  (1)
REQUIRED FORWARDERS TO ISSUE BILLS OF LADING; FN26  AND (2) MADE A
MATTER OF FEDERAL LAW WHAT HAD BEEN UNIFORMLY ADOPTED BY THE STATES AS
THE RULE OF LIABILITY FOR LOSS OR DAMAGE.  AS APPLIED TO RAILROADS, THE
CARMACK AMENDMENT MADE A SIGNIFICANT CHANGE, SINCE IT PREVENTED THE
INITIAL CARRIER FROM EXERCISING THE RIGHT GIVEN BY DECISION IN A
MAJORITY OF STATES TO LIMIT ITS LIABILITY TO LOSS OR DAMAGE OCCURRING
ON ITS OWN LINES.  BUT THAT RIGHT HAD NEVER BEEN GRANTED TO FORWARDERS
OF THE TYPE REGULATED BY PART IV.  THEIR LIABILITY HAS, FROM THE
BEGINNING, BEEN EXTENDED TO LOSS OR DAMAGE TO THE CONSIGNMENT OCCURRING
AT ANY TIME BETWEEN PICK-UP AT THE POINT OF ORIGIN AND DELIVERY AT
DESTINATION.  AS SHIPPERS, THEY HAVE, OF COURSE, ALWAYS HAD A RIGHT OF
ACTION AGAINST THE UNDERLYING CARRIER AT FAULT.  THE DEFENSE THAT THE
GOODS ARE NOT THOSE OF THE FORWARDER IS NOT OPEN TO THE CARRIER, SINCE,
AS WE HAVE HELD, THE CARRIER IS NOT CONCERNED WITH QUESTIONS OF
OWNERSHIP, BUT MUST TREAT THE FORWARDER AS SHIPPER.  INTERSTATE
COMMERCE COMMISSION V. DELAWARE, L. & W.R. CO., SUPRA. 

THE ACT THUS LEAVES THE FREIGHT FORWARDER IN SUBSTANTIALLY THE SAME
POSITION IT HAD PREVIOUSLY HELD WITH RESPECT TO ITS LIABILITY TO
SHIPPERS AND ITS RIGHTS AGAINST UNDERLYING CARRIERS.  THE HEARINGS,
COMMITTEE REPORTS AND DEBATES ARE BARE OF ANY SUGGESTION THAT
FORWARDERS NEEDED RELIEF FROM THE REQUIREMENT THAT THEY FILE THEIR
CLAIMS AGAINST CARRIERS LIKE OTHER SHIPPERS.  THEY HAVE DONE SO FOR
OVER A CENTURY.  THEY HAVE CONTINUED TO DO SO SINCE ENACTMENT OF THE
FREIGHT FORWARDER ACT.  SEE, E.G., MERCHANT SHIPPERS ASSN. V. KELLOGG
EXPRESS & DRAYING CO., 28 CAL.2D 594, 170 P.2D 923(1946); J. R. KELLY
FREIGHT FORWARDER APPLICATION, 260 I.C.C. 315, 318(1944); HUGH F.
GANNON, INC., FREIGHT FORWARDER APPLICATION, 260 I.C.C. 219,
220(1944).  WE WOULD REQUIRE A MUCH CLEARER SHOWING THAN HAS BEEN MADE
TO FIND THAT CONGRESS INTENDED, WITHOUT INCREASING THE LIABILITIES OF
FORWARDERS REGULATED BY THE ACT, TO GIVE THEM A RIGHT-OVER AGAINST
RAILROADS, SHIP LINES, AND LINE-HAUL MOTOR CARRIERS AS INITIAL CARRIERS
UNDER SEC. 20(12).  FN27 

IT IS TRUE THAT UNDER THE PROVISIONS OF SEC. 20(11) FORWARDERS ARE
NOW FORBIDDEN TO LIMIT THE PERIOD WITHIN WHICH CLAIMS MUST BE FILED BY
SHIPPERS TO LESS THAN NINE MONTHS.  IF FORWARDERS MUST, IN TURN, FILE
CLAIMS WITH CARRIERS WITHIN NINE MONTHS, RESPONDENT CONTENDS THAT IN
THE CASE OF CLAIMS FILED AGAINST A FORWARDER DURING THE LAST DAY OR TWO
OF THE PERIOD, IT WILL NOT HAVE ENOUGH TIME TO REFILE THE CLAIM WITH
THE PROPER CARRIER AND WILL THUS HAVE NO RECOURSE AFTER HAVING PAID THE
CLAIM.  THIS OBJECTION OBVIOUSLY APPLIES TO AN INSIGNIFICANT PROPORTION
OF THE TOTAL CLAIMS.  FURTHERMORE, IF THE INTERSTATE COMMERCE
COMMISSION CONSIDERS THE MATTER TO BE OF SUFFICIENT IMPORTANCE, IT HAS
THE EXPERIENCE AND AUTHORITY TO PRESCRIBE THE PROPER CORRECTIVE.  IN
ANY EVENT, THIS SINGLE INCONSISTENCY IS HARDLY SUFFICIENT TO JUSTIFY
THE CONTENTION THAT CONGRESS INTENDED THAT SEC. 1013 BE INTERPRETED TO
MAKE THE FORWARDER AN INITIAL CARRIER WITH RIGHT-OVER AGAINST COMMON
CARRIERS WHO MUST TREAT THE FORWARDER AS A SHIPPER FOR ALL PURPOSES. 

THE DECISION OF THE COURT OF APPEALS IS REVERSED. 

FN1  56 STAT. 284, 49 U.S.C. SEC. 1001 ET SEQ. 

FN2  FOR A FULL DESCRIPTION OF FREIGHT FORWARDER PRACTICES, SEE
UNITED STATES V. CHICAGO HEIGHTS TRUCKING CO., 310 U.S. 344(1940);
FREIGHT FORWARDING INVESTIGATION, 229 I.C.C. 201; BILLS OF LADING OF
FREIGHT FORWARDERS, 259 I.C.C. 277. 

FN3  "SEC.  1013.  BILLS OF LADING AND DELIVERY OF PROPERTY.  THE
PROVISIONS OF SECTION 20(11) AND (12) OF THIS TITLE, TOGETHER WITH SUCH
OTHER PROVISIONS OF CHAPTER 1 OF THIS TITLE (INCLUDING PENALTIES) AS
MAY BE NECESSARY FOR THE ENFORCEMENT OF SUCH PROVISIONS, SHALL APPLY
WITH RESPECT TO FREIGHT FORWARDERS, IN THE CASE OF SERVICE SUBJECT TO
THIS CHAPTER, WITH LIKE FORCE AND EFFECT AS IN THE CASE OF THOSE
PERSONS TO WHICH SUCH PROVISIONS ARE SPECIFICALLY APPLICABLE, AND THE
FREIGHT FORWARDER SHALL BE DEEMED BOTH THE RECEIVING AND DELIVERING
TRANSPORTATION COMPANY FOR THE PURPOSES OF SECTION 20(11) AND (12) OF
THIS TITLE.  WHEN THE SERVICES OF A COMMON CARRIER BY MOTOR VEHICLE
SUBJECT TO CHAPTER 8 OF THIS TITLE ARE UTILIZED BY A FREIGHT FORWARDER
FOR THE RECEIVING OF PROPERTY FROM A CONSIGNOR IN SERVICE SUBJECT TO
THIS CHAPTER, SUCH CARRIER MAY, WITH THE CONSENT OF THE FREIGHT
FORWARDER, EXECUTE THE BILL OF LADING OR SHIPPING RECEIPT FOR THE
FREIGHT FORWARDER.  WHEN THE SERVICES OF A COMMON CARRIER BY MOTOR
VEHICLE SUBJECT TO CHAPTER 8 OF THIS TITLE ARE UTILIZED BY A FREIGHT
FORWARDER FOR THE DELIVERY OF PROPERTY TO THE CONSIGNEE NAMED IN THE
FREIGHT FORWARDER'S BILL OF LADING, SHIPPING RECEIPT, OR FREIGHT BILL,
THE PROPERTY MAY, WITH THE CONSENT OF THE FREIGHT FORWARDER, BE
DELIVERED ON THE FREIGHT BILL, AND RECEIPTED FOR ON THE DELIVERY
RECEIPT, OF THE FREIGHT FORWARDER." 

FN4  SO FAR AS PERTINENT HERE, SEC. 20(11) PROVIDES:  "LIABILITY OF
INITIAL AND DELIVERING CARRIER FOR LOSS; LIMITATION OF LIABILITY;
NOTICE AND FILING OF CLAIM.  ANY COMMON CARRIER, RAILROAD, OR
TRANSPORTATION COMPANY SUBJECT TO THE PROVISIONS OF THIS CHAPTER
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
OR BY ANY COMMON CARRIER, RAILROAD, OR TRANSPORTATION COMPANY TO WHICH
SUCH PROPERTY MAY BE DELIVERED OR OVER WHOSE LINE OR LINES SUCH
PROPERTY MAY PASS WITHIN THE UNITED STATES OR WITHIN AN ADJACENT
FOREIGN COUNTRY WHEN TRANSPORTED ON A THROUGH BILL OF LADING,  ...  AND
ANY SUCH COMMON CARRIER, RAILROAD, OR TRANSPORTATION COMPANY SO
RECEIVING PROPERTY FOR TRANSPORTATION  ...  SHALL BE LIABLE TO THE
LAWFUL HOLDER OF SAID RECEIPT OR BILL OF LADING OR TO ANY PARTY
ENTITLED TO RECOVER THEREON, WHETHER SUCH RECEIPT OR BILL OF LADING HAS
BEEN ISSUED OR NOT  ...  :  PROVIDED FURTHER, THAT NOTHING IN THIS
ANY REMEDY OR RIGHT OF ACTION WHICH HE HAS UNDER THE EXISTING LAW  ...
" 

FN5  SECTION 20(12) PROVIDES:  "RECOVERY BY INITIAL OR DELIVERING
CARRIER FROM CONNECTING CARRIER.  THE COMMON CARRIER, RAILROAD, OR
TRANSPORTATION COMPANY ISSUING SUCH RECEIPT OR BILL OF LADING, OR
DELIVERING SUCH PROPERTY SO RECEIVED AND TRANSPORTED SHALL BE ENTITLED
TO RECOVER FROM THE COMMON CARRIER, RAILROAD, OR TRANSPORTATION COMPANY
ON WHOSE LINE THE LOSS, DAMAGE, OR INJURY SHALL HAVE BEEN SUSTAINED,
THE AMOUNT OF SUCH LOSS, DAMAGE, OR INJURY AS IT MAY BE REQUIRED TO PAY
TO THE OWNERS OF SUCH PROPERTY, AS MAY BE EVIDENCED BY ANY RECEIPT,
JUDGMENT, OR TRANSCRIPT THEREOF." 

FN6  PETITIONERS ALSO MAKE THE CONTENTION THAT EVEN ASSUMING THE
FORWARDER IS AN INITIAL CARRIER WITH RIGHT-OVER UNDER SEC. 20(12), THE
LIMITATION PERIOD PROVIDED IN SEC. 2(B) OF THE RAILROAD BILL OF LADING
IS EFFECTIVE TO MODIFY THAT RIGHT.  THEY POINT TO NUMEROUS
MODIFICATIONS OF THE RIGHT-OVER IN THE FREIGHT CLAIMS RULES APPLICABLE
TO RAILROADS INTER SE.  AND SEE ARTICLE I (A) OF PRINCIPLES AND
PRACTICES FOR THE INVESTIGATION AND DISPOSITION OF FREIGHT CLAIMS. 
UNDER THE VIEW WE TAKE OF THE CASE, IT IS UNNECESSARY TO REACH THAT
QUESTION. 

FN7  H.R. REP. NO. 1172, 77TH CONG., 1ST SESS., P. 6. 

FN8  ID. AT 15. 

FN9  87 CONG. REC. 8216. 

FN10  87 CONG. REC. 8220. 

FN11  IT SHOULD BE NOTED THAT, ALTHOUGH THE DEBATE TECHNICALLY
CONCERNED A BILL ALREADY PASSED BY THE SENATE (S. 210), THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE HAD STRUCK EVERYTHING
FOLLOWING THE ENACTING CLAUSE, SO THE MEASURE ACTUALLY UNDER
CONSIDERATION WAS A HOUSE AMENDMENT.  THIS AMENDMENT WAS MADE THE BASIS
OF THE BILL REPORTED BY THE CONFERENCE, AND SEC. 1013 WAS CARRIED OVER
INTACT FROM THE HOUSE AMENDMENT.  THE CONFERENCE REPORT WAS ADOPTED BY
BOTH HOUSES WITH LITTLE DEBATE. 

FN12  "MR. LEA.  ...  THE GENTLEMAN FROM NEW JERSEY (MR. WOLVERTON),
AS THE RANKING MINORITY MEMBER, GAVE UNSTINTED WORK TO THESE PROBLEMS
AND WITH AN ABILITY OF WHICH EVERY MEMBER OF THE COMMITTEE IS WELL
AWARE.  I APPRECIATE HIS GOOD SUPPORT OF THIS MEASURE TODAY AS WELL AS
THE FINE CONTRIBUTIONS HE HAS MADE TO OTHER IMPORTANT MEASURES WE HAVE
BROUGHT TO THE HOUSE IN RECENT YEARS."  87 CONG. REC. 8227.  LATER,
DURING DEBATE ON THE BILL REPORTED BY THE CONFERENCE, CHAIRMAN LEA
SAID:  "I PARTICULARLY COMMEND THE SERVICES OF THE GENTLEMAN FROM NEW
JERSEY (MR. WOLVERTON) WHO HAS GIVEN MUCH OF HIS TIME, EXPERIENCE, AND
ABILITY TO THIS MEASURE.  IT IS FORTUNATE FOR THIS COUNTRY THAT THIS
BODY HAS MEMBERS SO WELL QUALIFIED BY EXPERIENCE AND ABILITY TO GIVE
SUCH SERVICE TO THE NATION."  88 CONG. REC. 4064. 

FN13  PACIFIC COAST WHOLESALERS' ASSOCIATION, INVESTIGATION OF
STATUS, 269 I.C.C. 504, 513. 

FN14  IN DEBATE ON THE BILL REPORTED OUT OF CONFERENCE,
REPRESENTATIVE WOLVERTON GAVE A DETAILED EXPLANATION OF THE CHANGES
MADE BY THE COMMITTEE OF CONFERENCE IN THE HOUSE AMENDMENT TO S. 210. 
HE DID NOT COMMENT SPECIFICALLY ON THE SECTIONS WHICH HAD NOT BEEN
CHANGED IN CONFERENCE, BUT SAID:  "IN GENERAL, THE BALANCE OF THE BILL
NOW PRESENTED IS SUBSTANTIALLY IDENTICAL WITH THAT WHICH WAS PASSED BY
THE HOUSE ON OCTOBER 23, 1941.  AT THAT TIME I EXPLAINED AND COMMENTED
ON ITS PRINCIPAL PROVISIONS, AND, TO THE EXTENT THAT THEY ARE RETAINED
IN THE PRESENT MEASURE, WHAT I THERE SAID OF THEM STILL REMAINS
APPLICABLE."  88 CONG. REC. 4068. 

FN15  IN EXPLANATION OF THIS AMENDMENT (S. 2642) TO SEC. 1017(B),
SENATOR REED SAID:  "WHEN WE PASSED THE SO-CALLED FREIGHT FORWARDERS'
LEGISLATION THERE WAS SOME QUESTION AS TO WHETHER OR NOT A FREIGHT
FORWARDER WAS A COMMON CARRIER.  THE SENATE BILL OFFERED NO DIFFICULTY
WITH THAT SUBJECT.  WE DID NOT TREAT A FREIGHT FORWARDER AS A COMMON
CARRIER.  WE PASSED SENATE BILL 210, WHICH WENT TO THE HOUSE AND WAS
REFERRED TO THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE.  IN THE
HOUSE THERE WERE A NUMBER OF BILLS DEALING WITH THE SUBJECT.  THE HOUSE
STRUCK OUT EVERYTHING AFTER THE ENACTING CLAUSE AND SUBSTITUTED ONE OF
ITS OWN BILLS. 

"WHEN THE CONFERENCE COMMITTEE FINISHED ITS WORK WE THOUGHT WE HAD A
PERFECT BILL.  LATER IT WAS FOUND THAT THE DRAFTING SERVICE HAD MADE A
MISTAKE AS TO ONE WORD, SO SENATE BILL 2642 WAS INTRODUCED FOR THE
PURPOSE OF CORRECTING THAT ERROR.  AT ONE PLACE IN THE BILL WHICH WAS
PASSED REFERENCE WAS MADE TO A FREIGHT FORWARDER AS A CARRIER.  WE
DESIRE TO CORRECT THAT REFERENCE."  88 CONG. REC. 6115. 

FN16  MR. YOUNGDAHL:  "CLOSE ANALYSIS DEVELOPED THAT IN MANY RESPECTS
FREIGHT FORWARDERS, AS REGARDS THEIR RELATIONS WITH THE ACTUAL
CARRIERS, ARE PROPERLY TO BE CONSIDERED NOT AS CARRIERS BUT AS
SHIPPERS, AND BECAUSE OF THIS ESSENTIAL DIFFERENCE IN CHARACTER IT
BECAME NECESSARY TO RECOMMEND A FORM OF LEGISLATION IN KEEPING WITH
THAT CHARACTER.  ONLY SO, COULD GROSS DISCRIMINATIONS AGAINST OTHER
SHIPPERS BE AVOIDED."  87 CONG. REC. 8223. 

MR. WOLVERTON:  "EVEN THOUGH THEY MAY ASSUME OR INCUR THE OBLIGATIONS
OF A COMMON CARRIER TOWARD THEIR OWN SHIPPERS, FORWARDERS NEVERTHELESS
STAND IN THE ROLE OF SHIPPERS WITH RESPECT TO THE ACTUAL CARRIERS WHOSE
SERVICES THEY UTILIZE."  88 CONG. REC. 4065.  SEE ALSO, TO THE SAME
EFFECT, J.R. KELLY FREIGHT FORWARDER APPLICATION, 260 I.C.C. 315, 321. 
AND SEE FREIGHT FORWARDING INVESTIGATION, 229 I.C.C. 201, 297-304. 

FN17  THAT THE RELATION BETWEEN EXPRESS COMPANIES AND UNDERLYING
CARRIERS IS MUCH DIFFERENT THAN THE RELATIONS BETWEEN FORWARDERS AND
SUCH CARRIERS IS CLEARLY INDICATED IN A LETTER FROM THE INTERSTATE
COMMERCE COMMISSION TO CHAIRMAN LEA OF THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, WHICH APPEARS AT P. 42 OF THE HEARINGS
BEFORE THAT COMMITTEE ON H.R. 2764, 79TH CONG., 1ST SESS.  THE
COMMISSION THERE SAID, P. 43:  "THERE IS A VAST DISTINCTION BETWEEN THE
RELATIONS OF FORWARDERS AND THE EXPRESS AGENCY TO THE UNDERLYING
CARRIERS.  THE EXPRESS AGENCY HAS AN IDENTICAL CONTRACT WITH EACH
RAILROAD, WHICH WOULD NOT BE TRUE OF THE FORWARDER.  THE PROFITS, IF
ANY, ACCRUE TO THE RAILROADS, WHEREAS UNDER THE FORWARDER ARRANGEMENT
THE PROFITS WOULD ACCRUE, AS THEY DO NOW UNDER THE JOINT RATES, TO THE
FORWARDERS.  THE ROUTING OF EXPRESS SHIPMENTS, ALTHOUGH IN THE CONTROL
OF THE EXPRESS AGENCY, MUST OF NECESSITY DEPEND PRIMARILY UPON
AVAILABLE TRAIN SERVICE RATHER THAN UPON SOLICITATION BY, OR
CONCESSIONS FROM, THE TRANSPORTING CARRIER, WHEREAS CONCESSIONS IN THE
AMOUNT OF COMPENSATION TO THE CARRIER WOULD BE THE MOST IMPORTANT
FACTOR IN THE CASE OF THE FORWARDER.  THUS, THE CONSIDERATIONS WHICH
LED TO THE ADOPTION OF LAWS PROHIBITING UNJUST DISCRIMINATION AND UNDUE
PREJUDICE AND PREFERENCE AS BETWEEN LARGE AND INFLUENTIAL SHIPPERS ON
THE ONE HAND, AND SMALLER SHIPPERS ON THE OTHER, ARE PRACTICALLY ABSENT
IN EXPRESS SERVICE, BUT ARE HIGHLY PROMINENT IN FORWARDER SERVICE." 

FN18  87 CONG. REC. 8218. 

FN19  UNDER SEC. 1009, FORWARDERS WERE PERMITTED TO CONTINUE
OPERATION UNDER JOINT RATES PREVIOUSLY ESTABLISHED WITH MOTOR CARRIERS
FOR EIGHTEEN MONTHS FROM THE DATE OF ENACTMENT OF PART IV.  THIS
PROVISION WAS THOUGHT NECESSARY "IN ORDER TO PROVIDE A REASONABLE
PERIOD OF ADJUSTMENT WITHIN WHICH RATES AND CHARGES MAY BE ESTABLISHED
PURSUANT TO THE PROVISIONS OF SECTION (1008)."  SECTION 1009 WAS
AMENDED BY THE ACT OF FEBRUARY 19, 1946, 60 STAT. 21, TO PERMIT THE
FILING OF JOINT RATES BETWEEN FORWARDERS AND MOTOR CARRIERS UNDER
CERTAIN CIRCUMSTANCES. 

FN20  SEE E.G., TWIN CITY SHIPPERS ASSOCIATION FREIGHT FORWARDER
APPLICATION, 260 I.C.C. 307, 309. 

FN21  40 CONG. REC. 9580. 

FN22  SEE 1 HUTCHINSON ON CARRIERS (3D ED.)  SECS.  71, 80-84; BUNGE,
LAW OF DRAYMEN, FREIGHT FORWARDERS AND WAREHOUSEMEN, P. 111. 

FN23  KRENDER V. WOOLCOTT, 1 HILT.  (N.Y.)  223(1856); HEATH V.
JUDSON FREIGHT FORWARDING CO., 47 CAL. APP. 426, 190 P. 839(1920);
MANSFIELD V. CHICAGO TITLE & TRUST CO., 199 F. 95(1912). 

FN24  THE DISTINCTION IS MADE IN A NUMBER OF CASES, OF WHICH THE
FOLLOWING IS TYPICAL: 

"THE DEFENDANTS WERE NOT FORWARDERS, BUT CARRIERS.  ...  A SIMPLE
ENGAGEMENT TO FORWARD GOODS AT NEW YORK, MARKED FOR A PARTICULAR
DESTINATION, IS DISCHARGED BY SHIPPING THE GOODS, BY THE USUAL OR MOST
DIRECT CONVEYANCE, TO THE PLACE DESIGNATED; BUT AN AGREEMENT TO FORWARD
THEM FROM NEW YORK TO THE PLACE OF DESTINATION, THE CHARGE FOR FREIGHT
FOR THE WHOLE DISTANCE BEING SPECIFIED IN THE AGREEMENT, IS VERY
DIFFERENT.  IT IS AN AGREEMENT TO CARRY THEM FOR THAT DISTANCE, OR TO
BE RESPONSIBLE FOR THEIR SAFE CARRIAGE AND DELIVERY AT THE PLACE
DESIGNATED IN THE AGREEMENT."  KRENDER V. WOOLCOTT, 1 HILT.  (N.Y.) 
223, 227(1856).  SEE ALSO, CHRISTENSON V. AMERICAN EXPRESS CO., 15
MINN. 270(1870); BARE V. AMERICAN FORWARDING CO., 146 ILL. APP.
388(1909); KETTENHOFEN V. GLOBE TRANSFER & STORAGE CO., 70 WASH. 645,
127 P. 295(1912); HIGHWAY FREIGHT FORWARDING CO. V. PUBLIC SERVICE
COMM'N, 108 PA. SUPER.  CT. 178, 164 A. 835(1933). 

FN25  FOR DISCUSSION OF THE PROBLEM OF ASSUMPTION OF RESPONSIBILITY
FOR THE THROUGH TRANSPORTATION OF PROPERTY BY FREIGHT FORWARDERS, SEE
JUDSON-SHELDON CORP. APPLICATION, 260 I.C.C. 473; UNIVERSAL
TRANSCONTINENTAL CORP. APPLICATION, 260 I.C.C. 521; J. NELSON KAGARISE
APPLICATION, 260 I.C.C. 745.  CF. UNITED STATES V. AMERICAN UNION
TRANSPORT, INC., 327 U.S. 437(1946). 

FN26  SECTION 20(11), OF COURSE, ALSO INCLUDES THE CUMMINS
AMENDMENTS, 38 STAT. 1196 AND 39 STAT. 441, WHICH RELATE TO LIMITATION
OF LIABILITY TO THE DECLARED VALUE OF THE SHIPMENT.  THE SECTION ADDS
NO NEW LIABILITY, HOWEVER, TO THAT PREVIOUSLY BORNE BY THE FORWARDER. 

FN27  THE COURT OF APPEALS REJECTED REPRESENTATIVE WOLVERTON'S
ANALYSIS OF SEC. 1013 AS BASED ON THE ERRONEOUS PREMISE THAT THE
SHIPPER BY FREIGHT FORWARDER NEVER HAD ANY RIGHT OF ACTION AGAINST THE
CARRIER, AND THEREFORE THE FORWARDER CAN HAVE NO RIGHT OF SUBROGATION
UNDER SEC. 20(12).  THE COURT FELT THAT THIS RATIONALE INDICATES A
WITHDRAWAL OF THE SHIPPER'S COMMON-LAW RIGHT OF RECOVERY AGAINST THE
RESPONSIBLE CARRIER, AND CONSEQUENTLY THE PLACING OF THE FORWARDER IN
THE POSITION OF AN INSURER WITH NO RIGHT AGAINST THE CARRIER
RESPONSIBLE FOR LOSS OR DAMAGE. 

WE DO NOT SO READ THAT ANALYSIS.  OF COURSE SHIPPERS BY FREIGHT
FORWARDER HAVE FOR MANY YEARS BEEN PERMITTED TO SUE UNDERLYING CARRIERS
FOR LOSS OR DAMAGE OCCASIONED BY THE LATTER.  NEW JERSEY STEAM
NAVIGATION CO. V. MERCHANTS' BANK, 6 HOW.  344(1848); GREAT NORTHERN R.
CO. V. O'CONNOR, 232 U.S. 508(1914).  THE THEORY OF THESE ACTIONS WAS
THAT THE SHIPPER IS THE UNDISCLOSED PRINCIPAL OF ITS AGENT, THE
FORWARDER, IN THE LATTER'S CONTRACT WITH THE CARRIER.  THE FORWARDER,
AS AGENT OF AN UNDISCLOSED PRINCIPAL, COULD, OF COURSE, SUE ON THE
CONTRACT.  MERCHANT SHIPPERS ASSOCIATION V. KELLOGG EXPRESS & DRAYING
CO., 28 CAL.2D 594, 170 P.2D 923.  SEE BUNGE, LAW OF DRAYMEN, FREIGHT
FORWARDERS AND WAREHOUSEMEN, P. 117.  SEE ALSO RESTATEMENT OF AGENCY,
SECS. 322, 364.  ON THE OTHER HAND, WHEN A SHIPPER SUED A CONNECTING
CARRIER FOR LOSS OF GOODS DELIVERED TO AN INITIAL CARRIER BY RAILROAD,
IT DID SO AS A DISCLOSED PRINCIPAL.  THE INITIAL CARRIER, LIKE THE
FORWARDER, ACTED AS AGENT TO CONTRACT WITH THE CONNECTING CARRIER FOR
CARRIAGE OF GOODS ON THE LATTER'S LINES, BUT SINCE IT ACTED FOR A
DISCLOSED PRINCIPAL, IT WAS NOT A PARTY TO THE CONTRACT.  SEE BICHLMEIR
V. MINNEAPOLIS, ST. P. & S.S.M.R. CO., 159 WIS. 404, 150 N.W.
508(1915); 1 ROBERTS, FEDERAL LIABILITIES OF CARRIERS, SEC. 386.  SEE
ALSO RESTATEMENT OF AGENCY SEC. 320. 

WHEN THE CARMACK AMENDMENT WAS PASSED, THE THEORY OF THE LIABILITY
IMPOSED UPON THE INITIAL CARRIER WAS THAT IT BECAME A PRINCIPAL AND ALL
ITS CONNECTING CARRIERS AGENTS FOR THE TRANSPORTATION OF THE GOODS. 
NORTHERN PACIFIC R. CO. V. WALL, 241 U.S. 87(1916); ATLANTIC COAST LINE
R. CO. V. RIVERSIDE MILLS, 219 U.S. 186(1911).  SINCE THE INITIAL
CARRIER, UNLIKE THE FORWARDER, DID NOT HAVE A CONTRACT RIGHT OF ACTION
AGAINST ITS CONNECTING CARRIERS (I.E. WAS NOT A SHIPPER), SEC. 20(12)
WAS PASSED TO INSURE THAT THE BURDEN WOULD FALL ON THE CARRIER
RESPONSIBLE FOR THE LOSS.  THE FORWARDER, HOWEVER, IS A PARTY TO THE
CONTRACT WITH THE CARRIER.  IT HAS NO NEED FOR SUBROGATION TO THE
SHIPPER'S RIGHTS, AS REPRESENTATIVE WOLVERTON INDICATED.  ITS RECOVERY
AGAINST THE CARRIER HAS ALWAYS BEEN UPON "THE BILL OF LADING ISSUED TO
IT BY SUCH CARRIER AND UNDER THE PROVISIONS OF LAW APPLICABLE
THERETO."  THAT RIGHT REMAINS. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND M.R JUSTICE RUTLEDGE
WOULD AFFIRM THE JUDGMENT FOR REASONS STATED BY JUDGE FRANK, WRITING
FOR THE COURT OF APPEALS.  SEE 166 F.2D 778. 
..END :




















GIBONEY V. EMPIRE STORAGE CO., 336 U.S. 490 


NO. 182.  ARGUED JANUARY 4-5, 1949.  - DECIDED APRIL 4, 1949.  - 357 MO.
671, 210 S.W.2D 55, AFFIRMED. 


A STATE COURT ENJOINED OFFICERS AND MEMBERS OF A UNION OF ICE PEDDLERS
FROM PEACEFULLY PICKETING APPELLEE'S PLACE OF BUSINESS, FINDING THAT
THE SOLE PURPOSE OF THE PICKETING WAS TO INDUCE APPELLEE TO AGREE NOT
TO SELL ICE TO NON-UNION PEDDLERS.  THE STATE SUPREME COURT AFFIRMED,
HOLDING THAT PICKETING FOR THIS PURPOSE VIOLATED A STATE STATUTE
FORBIDDING AGREEMENTS IN RESTRAINT OF TRADE.  HELD:  THE STATE LAW, AS
CONSTRUED AND APPLIED IN THIS CASE, DOES NOT VIOLATE THE FEDERAL
CONSTITUTION, AND THE JUDGMENT IS AFFIRMED.  PP. 491-504. 

1.  STATES HAVE CONSTITUTIONAL POWER TO PROHIBIT DEALERS AND THEIR
AIDERS AND ABETTORS FROM COMBINING TO RESTRAIN FREEDOM OF TRADE.  P.
495. 

2.  THE GUARANTIES OF FREEDOM OF SPEECH AND PRESS STEMMING FROM THE
FIRST AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION DO NOT
IMMUNIZE MEMBERS OF LABOR UNIONS FROM SUCH A VALID STATE LAW.  PP. 495
497. 

3.  NOR DO THEY PREVENT STATE COURTS FROM ENJOINING PEACEFUL
PICKETING BY MEMBERS OF A LABOR UNION IN VIOLATION OF SUCH A VALID
STATE LAW, EVEN THOUGH THE PICKETING INVOLVES DISSEMINATION OF TRUTHFUL
INFORMATION ABOUT A LABOR DISPUTE.  THORNHILL V. ALABAMA, 310 U.S. 88;
CARLSON V. CALIFORNIA, 310 U.S. 106, DISTINGUISHED.  PP. 497-504. 

(A)  THE CONSTITUTIONAL FREEDOM OF SPEECH AND PRESS DOES NOT IMMUNIZE
SPEECH OR WRITING USED AS AN INTEGRAL PART OF CONDUCT IN VIOLATION OF A
VALID CRIMINAL STATUTE.  P. 498. 

(B)  THE CIRCUMSTANCES HERE JUSTIFIED RESTRAINT OF THE PICKETING,
SINCE IT WAS ENGAGED IN FOR THE SOLE PURPOSE OF INDUCING A VIOLATION OF
A VALID STATE LAW.  PP. 501-504. 

(C)  THE STATE, AND NOT THE LABOR UNION, HAS PARAMOUNT CONSTITUTIONAL
POWER TO REGULATE AND GOVERN THE MANNER IN WHICH CERTAIN TRADE
PRACTICES MAY BE CARRIED ON.  P. 504. 

GIBONEY ET AL. V. EMPIRE STORAGE & ICE CO. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

A STATE TRIAL COURT ENJOINED OFFICERS AND MEMBERS OF A LABOR UNION
FROM PICKETING APPELLEE'S PLACE OF BUSINESS IN ORDER TO FORCE APPELLEE
TO ENTER INTO AN AGREEMENT IN RESTRAINT OF TRADE IN VIOLATION OF MO.
REV. STAT. ANN., SEC. 8301.  THE STATE SUPREME COURT AFFIRMED.  357 MO.
671, 210 S.W. ID 55.  ON APPEAL TO THIS COURT, AFFIRMED, P. 504. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE HERE ON APPEAL UNDER 28 U.S.C. SEC. 1257 RAISES QUESTIONS
CONCERNING THE CONSTITUTIONAL POWER OF A STATE TO APPLY ITS ANTI-TRADE
RESTRAINT LAW  FN1  TO LABOR UNION ACTIVITIES, AND TO ENJOIN UNION
MEMBERS FROM PEACEFUL PICKETING CARRIED ON AS AN ESSENTIAL AND
INSEPARABLE PART OF A COURSE OF CONDUCT WHICH IS IN VIOLATION OF THE
STATE LAW.  THE PICKETING OCCURRED IN KANSAS CITY, MISSOURI.  THE
INJUNCTION WAS ISSUED BY A MISSOURI STATE COURT. 

THE APPELLANTS ARE MEMBERS AND OFFICERS OF THE ICE AND COAL DRIVERS
AND HANDLERS LOCAL UNION NO. 953, AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR.  ITS MEMBERSHIP INCLUDES ABOUT 160 OF 200 RETAIL
ICE PEDDLERS WHO DRIVE THEIR OWN TRUCKS IN SELLING ICE FROM DOOR TO
DOOR IN KANSAS CITY.  THE UNION BEGAN EFFORTS TO INDUCE ALL THE
NONUNION PEDDLERS TO JOIN.  ONE OBJECTIVE OF THE ORGANIZATIONAL DRIVE
WAS TO BETTER WAGE AND WORKING CONDITIONS OF PEDDLERS AND THEIR
HELPERS.  MOST OF THE NONUNION PEDDLERS REFUSED TO JOIN THE UNION.  TO
BREAK DOWN THEIR RESISTANCE THE UNION ADOPTED A PLAN WHICH WAS DESIGNED
TO MAKE IT IMPOSSIBLE FOR NONUNION PEDDLERS TO BUY ICE TO SUPPLY THEIR
RETAIL CUSTOMERS IN KANSAS CITY.  PURSUANT TO THE PLAN THE UNION SET
ABOUT TO OBTAIN FROM ALL KANSAS CITY WHOLESALE ICE DISTRIBUTORS
AGREEMENTS THAT THEY WOULD NOT SELL ICE TO NONUNION PEDDLERS. 
AGREEMENTS WERE OBTAINED FROM ALL DISTRIBUTORS EXCEPT THE APPELLEE,
EMPIRE STORAGE AND ICE COMPANY.  EMPIRE REFUSED TO AGREE.  THE UNION
THEREUPON INFORMED EMPIRE THAT IT WOULD USE OTHER MEANS AT ITS DISPOSAL
TO FORCE EMPIRE TO COME AROUND TO THE UNION VIEW.  EMPIRE STILL REFUSED
TO AGREE.  ITS PLACE OF BUSINESS WAS PROMPTLY PICKETED BY UNION MEMBERS
ALTHOUGH THE ONLY COMPLAINT REGISTERED AGAINST EMPIRE, AS INDICATED BY
PLACARDS CARRIED BY THE PICKETS, WAS ITS CONTINUED SALE OF ICE TO
NONUNION PEDDLERS. 

THUS THE AVOWED IMMEDIATE PURPOSE OF THE PICKETING WAS TO COMPEL
EMPIRE TO AGREE TO STOP SELLING ICE TO NONUNION PEDDLERS.  MISSOURI
STATUTES, SET OUT IN NOTE 1, MAKE SUCH AN AGREEMENT A CRIME PUNISHABLE
BY A FINE OF NOT MORE THAN $5,000 AND BY IMPRISONMENT IN THE
PENITENTIARY FOR NOT MORE THAN FIVE YEARS.  FURTHERMORE, UNDER SEC.
8308 OF THE MISSOURI REVISED STATUTES ANN. (1939), HAD EMPIRE MADE THE
AGREEMENT, THE ICE PEDDLERS COULD HAVE BROUGHT ACTIONS FOR TRIPLE
DAMAGES FOR ANY INJURIES THEY SUSTAINED AS A RESULT OF THE AGREEMENT. 

ABOUT 85% OF THE TRUCK DRIVERS WORKING FOR EMPIRE'S CUSTOMERS WERE
MEMBERS OF LABOR UNIONS.  THESE UNION TRUCK DRIVERS REFUSED TO DELIVER
GOODS TO OR FROM EMPIRE'S PLACE OF BUSINESS.  HAD ANY ONE OF THEM
CROSSED THE PICKET LINE HE WOULD HAVE BEEN SUBJECT TO FINE OR
SUSPENSION BY THE UNION OF WHICH HE WAS A MEMBER. 

BECAUSE OF THE FOREGOING FACTS SHOWN EITHER BY ADMISSIONS, BY
UNDISPUTED EVIDENCE, OR BY UNCHALLENGED FINDINGS, THE PICKETING HAD AN
INSTANTANEOUS ADVERSE EFFECT ON EMPIRE'S BUSINESS.  IT WAS REDUCED 85%.
IN THIS DILEMMA, EMPIRE WAS FACED WITH THREE ALTERNATIVES:  IT COULD
CONTINUE TO SELL ICE TO NONUNION PEDDLERS, IN WHICH EVENT IT WOULD BE
COMPELLED TO WAGE A FIGHT FOR SURVIVAL AGAINST OVERWHELMING ODDS; IT
COULD STOP SELLING ICE TO NONUNION PEDDLERS THEREBY RELIEVING ITSELF
FROM FURTHER CONFLICT WITH THE UNION, IN WHICH EVENT IT WOULD BE
SUBJECT TO PROSECUTION FOR CRIME AND SUITS FOR TRIPLE DAMAGES; IT COULD
INVOKE THE PROTECTION OF THE LAW.  THE LAST ALTERNATIVE WAS ADOPTED. 

EMPIRE'S COMPLAINT CHARGED THAT THE CONCERTED EFFORTS OF UNION MEMBERS
TO RESTRAIN EMPIRE FROM SELLING TO NONUNION MEMBERS WAS A VIOLATION OF
THE ANTI-TRADE-RESTRAINT STATUTE AND THAT AN AGREEMENT BY EMPIRE TO
REFUSE TO MAKE SUCH SALES WOULD VIOLATE THE SAME STATUTE.  IT PRAYED
FOR AN INJUNCTION AGAINST THE PICKETING.  IN ANSWERING, APPELLANTS
ASSERTED A CONSTITUTIONAL RIGHT TO PICKET EMPIRE'S PREMISES IN ORDER TO
FORCE IT TO DISCONTINUE SALE OF ICE TO NONUNION PEDDLERS.  THEY
CONTENDED THAT THEIR RIGHT TO DO SO WAS "GUARANTEED BY THE FIRST AND
FOURTEENTH AMENDMENTS" BECAUSE THERE WAS "A LABOR DISPUTE EXISTING"
BETWEEN APPELLANTS AND APPELLEE, AND BECAUSE THE PICKETERS PUBLICIZED
ONLY THE TRUTHFUL INFORMATION THAT APPELLEE WAS "SELLING ICE TO
PEDDLERS WHO ARE NOT MEMBERS OF THE SAID DEFENDANTS' UNION." 

THE TRIAL COURT HEARD EVIDENCE, MADE FINDINGS AND ISSUED AN
INJUNCTION RESTRAINING THE APPELLANTS FROM "PLACING PICKETS OR
PICKETING AROUND OR ABOUT THE BUILDINGS" OF EMPIRE. 

THE STATE SUPREME COURT AFFIRMED.  357 MO. 671, 210 S.W.2D 55.  IT
AGREED WITH THE FINDINGS OF THE TRIAL COURT THAT THE CONDUCT OF
APPELLANTS WAS PURSUANT TO A LOCAL TRANSPORTATION COMBINATION USED TO
COMPEL EMPIRE TO STOP SELLING ICE TO NONUNION PEDDLERS AND THAT THE
PURPOSE OF THE PICKETING WAS TO FORCE EMPIRE TO BECOME A PARTY TO SUCH
COMBINATION.  IT HELD THAT SUCH ACTIVITIES WERE UNLAWFUL BECAUSE IN
VIOLATION OF SEC. 8301 OF THE MISSOURI STATUTES AND FURTHER HELD THAT
THE INJUNCTION TO PREVENT PICKETING FOR SUCH UNLAWFUL PURPOSE DID NOT
CONTRAVENE THE APPELLANTS' RIGHT OF FREE SPEECH. 

IN THIS COURT APPELLANTS DO NOT RAISE PROBLEMS SIMILAR TO THOSE
DISCUSSED IN NEAR V. MINNESOTA, 283 U.S. 697, RELATING TO CENSORSHIP
PRIOR TO PUBLICATION AS DISTINGUISHED FROM SANCTIONS TO BE IMPOSED
AFTER PUBLICATION, NOR ARE THEIR OBJECTIONS TO THE FORM, LANGUAGE, OR
SCOPE OF THE INJUNCTION.  SEE MILK WAGON DRIVERS V. MEADOWMOOR DAIRIES,
312 U.S. 287, 297-298, ALSO DISSENTING OPINION, 299-303.  ATTACKING THE
MISSOURI STATUTE AS CONSTRUED AND APPLIED, APPELLANTS BROADLY CHALLENGE
THE POWER OF THE STATE TO ISSUE ANY INJUNCTION AGAINST THEIR CONDUCT
SINCE, THEY ASSERT, THE PRIMARY OBJECTIVE OF THEIR COMBINATION AND
PICKETING WAS TO IMPROVE WAGE AND WORKING CONDITIONS.  ON THIS PREMISE
THEY ARGUE THAT THEIR RIGHT TO COMBINE, TO PICKET, AND TO PUBLISH MUST
BE DETERMINED BY FOCUSING ATTENTION EXCLUSIVELY UPON THEIR LAWFUL
PURPOSE TO IMPROVE LABOR CONDITIONS, AND THAT THEIR VIOLATION OF THE
STATE ANTI-TRADE-RESTRAINT LAWS MUST BE DISMISSED AS MERELY INCIDENTAL
TO THIS LAWFUL PURPOSE. 

FIRST.  THAT STATES HAVE CONSTITUTIONAL POWER TO PROHIBIT COMPETING
DEALERS AND THEIR AIDERS AND ABETTORS FROM COMBINING TO RESTRAIN
FREEDOM OF TRADE IS BEYOND QUESTION.  WATSON V. BUCK, 313 U.S. 387, 403
404.  IN SPEAKING OF THE MISSOURI STATUTORY ANTECEDENT OF THE STATUTE
HERE CHALLENGED, THIS COURT SAID:  "THE PURPOSE OF SUCH STATUTES IS TO
SECURE COMPETITION AND PRECLUDE COMBINATIONS WHICH TEND TO DEFEAT IT.
...  THERE IS NOTHING IN THE CONSTITUTION OF THE UNITED STATES WHICH
PRECLUDES A STATE FROM ADOPTING AND ENFORCING SUCH POLICY.  TO SO
DECIDE WOULD BE STEPPING BACKWARDS."  INTERNATIONAL HARVESTER CO. V.
MISSOURI, 234 U.S. 199, 209.  AGREEMENTS AND COMBINATIONS NOT TO SELL
TO OR BUY GOODS FROM PARTICULAR PERSONS, OR TO DICTATE THE TERMS UNDER
WHICH TRANSPORTATION WILL BE SUPPLIED, ARE WELL RECOGNIZED TRADE
RESTRAINT PRACTICES WHICH BOTH STATE AND NATIONAL LEGISLATION CAN AND
DO PROHIBIT.  GRENADA LBR.  CO. V. MISSISSIPPI, 217 U.S. 433, 440-441;
EASTERN STATES LBR.  ASSN.  V. UNITED STATES, 234 U.S. 600, 612-614;
FASHION GUILD V. TRADE COMM'N, 312 U.S. 457, 465; UNITED STATES V.
FREIGHT ASSN., 166 U.S. 290, 324-325. 

SECOND.  IT IS CONTENDED THAT THOUGH THE MISSOURI STATUTE CAN BE
APPLIED VALIDLY TO COMBINATIONS OF BUSINESSMEN WHO AGREE NOT TO SELL TO
CERTAIN PERSONS, IT CANNOT BE APPLIED CONSTITUTIONALLY TO COMBINATIONS
OF UNION WORKERS WHO AGREE IN THEIR SELF-INTEREST TO USE THEIR JOINT
POWER TO PREVENT SALES TO NONUNION WORKERS.  THIS CONTENTION APPEARS TO
BE GROUNDED ON THE GUARANTIES OF FREEDOM OF SPEECH AND PRESS STEMMING
FROM THE FOURTEENTH AND FIRST AMENDMENTS.  ASIDE FROM THE ELEMENT OF
DISSEMINATING INFORMATION THROUGH PEACEFUL PICKETERS, LATER DISCUSSED,
IT IS DIFFICULT TO PERCEIVE HOW IT COULD BE THOUGHT THAT THESE
CONSTITUTIONAL GUARANTIES AFFORD LABOR UNION MEMBERS A PECULIAR
IMMUNITY FROM LAWS AGAINST TRADE RESTRAINT COMBINATIONS, UNLESS, AS
APPELLANTS CONTEND, LABOR UNIONS ARE GIVEN SPECIAL CONSTITUTIONAL
PROTECTION DENIED ALL OTHER PEOPLE.  FN2 

THE OBJECTIVE OF UNIONS TO IMPROVE WAGES AND WORKING CONDITIONS HAS
SOMETIMES COMMENDED ITSELF TO CONGRESS AND TO STATE LEGISLATURES.  TO
THE EXTENT THAT THE STATES OR CONGRESS, FOR THIS OR OTHER REASONS, HAVE
SEEN FIT TO EXEMPT UNIONS FROM ANTITRUST LAWS, THIS COURT HAS SUSTAINED
LEGISLATIVE POWER TO GRANT THE EXEMPTIONS.  INTERNATIONAL HARVESTER CO.
V. MISSOURI, 234 U.S. 199; ALLEN BRADLEY CO. V. UNION, 325 U.S. 797,
810-811; UNITED STATES V. HUTCHESON, 312 U.S. 219, 232-234; AND SEE
TIGNER V. TEXAS, 310 U.S. 141.  ON THE OTHER HAND, WHERE STATUTES HAVE
NOT GRANTED EXEMPTIONS, WE HAVE DECLARED THAT VIOLATIONS OF ANTITRUST
LAWS COULD NOT BE DEFENDED ON THE GROUND THAT A PARTICULAR ACCUSED
COMBINATION WOULD NOT INJURE BUT WOULD ACTUALLY HELP MANUFACTURERS,
LABORERS, RETAILERS, CONSUMERS, OR THE PUBLIC IN GENERAL.  FASHION
GUILD V. TRADE COMM'N, 312 U.S. 457, 467-468.  MORE THAN THIRTY YEARS
AGO THIS COURT SAID (INTERNATIONAL HARVESTER CO. V. MISSOURI, SUPRA, AT
209):  "IT IS TOO LATE IN THE DAY TO ASSERT AGAINST STATUTES WHICH
FORBID COMBINATIONS OF COMPETING COMPANIES THAT A PARTICULAR
COMBINATION WAS INDUCED BY GOOD INTENTIONS  ...  "  SEE ALSO UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 220-221; MANDEVILLE
FARMS V. SUGAR CO., 334 U.S. 219, 242-243. 

THE FOREGOING HOLDINGS REST ON THE PREMISE THAT LEGISLATIVE POWER TO
REGULATE TRADE AND COMMERCE INCLUDES THE POWER TO DETERMINE WHAT
GROUPS, IF ANY, SHALL BE REGULATED, AND WHETHER CERTAIN REGULATIONS
WILL HELP OR INJURE BUSINESSMEN, WORKERS, AND THE PUBLIC IN GENERAL. 
FN3  IN MAKING THIS DETERMINATION MISSOURI HAS DECIDED TO APPLY ITS LAW
WITHOUT EXCEPTION TO ALL PERSONS WHO COMBINE TO RESTRAIN FREEDOM OF
TRADE.  WE ARE WITHOUT CONSTITUTIONAL AUTHORITY TO MODIFY OR UPSET
MISSOURI'S DETERMINATION THAT IT IS IN THE PUBLIC INTEREST TO MAKE
COMBINATIONS OF WORKERS SUBJECT TO LAWS DESIGNED TO KEEP THE CHANNELS
OF TRADE WHOLLY FREE AND OPEN.  TO EXALT ALL LABOR UNION CONDUCT IN
RESTRAINT OF TRADE ABOVE ALL STATE CONTROL WOULD GREATLY REDUCE THE
TRADITIONAL POWERS OF STATES OVER THEIR DOMESTIC ECONOMY AND MIGHT
CONCEIVABLY MAKE IT IMPOSSIBLE FOR THEM TO ENFORCE THEIR ANTI-TRADE
RESTRAINT LAWS.  SEE ALLEN BRADLEY CO. V. UNION, 325 U.S. 797, 810. 
MORE THAN THAT, IF FOR THE REASONS HERE CONTENDED STATES CANNOT SUBJECT
UNION MEMBERS TO SUCH ANTI-TRADE-RESTRAINT LAWS AS MISSOURI'S, NEITHER
CAN CONGRESS.  THE CONSTITUTION HAS NOT SO GREATLY IMPAIRED THE STATES'
OR NATION'S POWER TO GOVERN. 

THIRD.  IT IS CONTENDED THAT THE INJUNCTION AGAINST PICKETING
ADJACENT TO EMPIRE'S PLACE OF BUSINESS IS AN UNCONSTITUTIONAL
ABRIDGMENT OF FREE SPEECH BECAUSE THE PICKETERS WERE ATTEMPTING
PEACEFULLY TO PUBLICIZE TRUTHFUL FACTS ABOUT A LABOR DISPUTE.  SEE
THORNHILL V. ALABAMA, 310 U.S. 88, 102, AND ALLEN BRADLEY CO. V. UNION,
325 U.S. 797, 807, NOTE 12.  BUT THE RECORD HERE DOES NOT PERMIT THIS
PUBLICIZING TO BE TREATED IN ISOLATION.  FOR ACCORDING TO THE
PLEADINGS, THE EVIDENCE, THE FINDINGS, AND THE ARGUMENT OF THE
APPELLANTS, THE SOLE IMMEDIATE OBJECT OF THE PUBLICIZING ADJACENT TO
THE PREMISES OF EMPIRE, AS WELL AS THE OTHER ACTIVITIES OF THE
APPELLANTS AND THEIR ALLIES, WAS TO COMPEL EMPIRE TO AGREE TO STOP
SELLING ICE TO NONUNION PEDDLERS.  THUS ALL OF APPELLANTS' ACTIVITIES -
THEIR POWERFUL TRANSPORTATION COMBINATION, THEIR PATROLLING, THEIR
FORMATION OF A PICKET LINE WARNING UNION MEN NOT TO CROSS AT PERIL OF
THEIR UNION MEMBERSHIP, THEIR PUBLICIZING - CONSTITUTED A SINGLE AND
INTEGRATED COURSE OF CONDUCT, WHICH WAS IN VIOLATION OF MISSOURI'S
VALID LAW.  IN THIS SITUATION, THE INJUNCTION DID NO MORE THAN ENJOIN
AN OFFENSE AGAINST MISSOURI LAW, A FELONY. 

IT RARELY HAS BEEN SUGGESTED THAT THE CONSTITUTIONAL FREEDOM FOR
SPEECH AND PRESS EXTENDS ITS IMMUNITY TO SPEECH OR WRITING USED AS AN
INTEGRAL PART OF CONDUCT IN VIOLATION OF A VALID CRIMINAL STATUTE.  WE
REJECT THE CONTENTION NOW.  NOTHING THAT WAS SAID OR DECIDED IN ANY OF
THE CASES RELIED ON BY APPELLANTS CALLS FOR A DIFFERENT HOLDING. 

NEITHER THORNHILL V. ALABAMA, SUPRA, NOR CARLSON V. CALIFORNIA, 310
U.S. 106, BOTH DECIDED THE SAME DAY, SUPPORTS THE CONTENTION THAT
CONDUCT OTHERWISE UNLAWFUL IS ALWAYS IMMUNE FROM STATE REGULATION
BECAUSE AN INTEGRAL PART OF THAT CONDUCT IS CARRIED ON BY DISPLAY OF
PLACARDS BY PEACEFUL PICKETERS.  IN BOTH THESE CASES THIS COURT STRUCK
DOWN STATUTES WHICH BANNED ALL DISSEMINATION OF INFORMATION BY PEOPLE
ADJACENT TO CERTAIN PREMISES, POINTING OUT THAT THE STATUTES WERE SO
BROAD THAT THEY COULD NOT ONLY BE UTILIZED TO PUNISH CONDUCT PLAINLY
ILLEGAL BUT COULD ALSO BE APPLIED TO BAN ALL TRUTHFUL PUBLICATIONS OF
THE FACTS OF A LABOR CONTROVERSY.  BUT IN THE THORNHILL OPINION, AT PP.
103-104, THE COURT WAS CAREFUL TO POINT OUT THAT IT WAS WITHIN THE
PROVINCE OF STATES "TO SET THE LIMITS OF PERMISSIBLE CONTEST OPEN TO
INDUSTRIAL COMBATANTS."  SEE LINCOLN LABOR UNION V. NORTHWESTERN IRON &
METAL CO., 335 U.S. 525, 536; ALLEN-BRADLEY LOCAL V. BOARD, 315 U.S.
740, 748-751.  FURTHER EMPHASIZING THE POWER OF A STATE "TO SET THE
LIMITS OF PERMISSIBLE CONTEST OPEN TO INDUSTRIAL COMBATANTS" THE COURT
CITED WITH APPROVAL THE OPINION OF MR. JUSTICE BRANDEIS IN DUPLEX
PRINTING CO. V. DEERING, 254 U.S. 443, AT 488.  ON THAT PAGE THE
OPINION STATED:    "THE CONDITIONS DEVELOPED IN INDUSTRY MAY BE SUCH
THAT THOSE ENGAGED IN IT CANNOT CONTINUE THEIR STRUGGLE WITHOUT DANGER
TO THE COMMUNITY.  BUT IT IS NOT FOR JUDGES TO DETERMINE WHETHER SUCH
CONDITIONS EXIST, NOR IS IT THEIR FUNCTION TO SET THE LIMITS OF
PERMISSIBLE CONTEST AND TO DECLARE THE DUTIES WHICH THE NEW SITUATION
DEMANDS.  THIS IS THE FUNCTION OF THE LEGISLATURE WHICH, WHILE LIMITING
INDIVIDUAL AND GROUP RIGHTS OF AGGRESSION AND DEFENSE, MAY SUBSTITUTE
PROCESSES OF JUSTICE FOR THE MORE PRIMITIVE METHOD OF TRIAL BY
COMBAT." 

AFTER EMPHASIZING STATE POWER OVER INDUSTRIAL CONFLICTS, THE COURT IN
THE THORNHILL OPINION WENT ON TO SAY, AT P. 104, THAT STATES MAY NOT
"IN DEALING WITH THE EVILS ARISING FROM INDUSTRIAL DISPUTES  ...
IMPAIR THE EFFECTIVE EXERCISE OF THE RIGHT TO DISCUSS FREELY INDUSTRIAL
RELATIONS ...  "  THIS STATEMENT MUST BE CONSIDERED IN ITS CONTEXT.  IT
WAS DIRECTED TOWARD A SWEEPING STATE PROHIBITION WHICH THIS COURT FOUND
TO EMBRACE "NEARLY EVERY PRACTICABLE, EFFECTIVE MEANS WHEREBY THOSE
INTERESTED - INCLUDING THE EMPLOYEES DIRECTLY AFFECTED - MAY ENLIGHTEN
THE PUBLIC ON THE NATURE AND CAUSES OF A LABOR DISPUTE."  THAT THE
GENERAL STATEMENT OF THE LIMITATION OF A STATE'S POWER TO IMPAIR FREE
SPEECH WAS NOT INTENDED TO APPLY TO THE FACT SITUATION PRESENTED HERE
IS FURTHER INDICATED BY THE CASES CITED WITH APPROVAL IN NOTE 21 OF THE
THORNHILL OPINION.  FN4 

APPELLANTS ALSO RELY ON CARPENTERS UNION V. RITTER'S CAFE, 315 U.S.
722, AND BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769, DECIDED THE SAME
DAY.  NEITHER LENDS SUPPORT TO THE CONTENTION THAT PEACEFUL PICKETING
IS BEYOND LEGISLATIVE CONTROL.  THE COURT'S OPINION IN THE RITTER CASE
APPROVINGLY QUOTED A PART OF THE THORNHILL OPINION WHICH RECOGNIZED
BROAD STATE POWERS OVER INDUSTRIAL CONFLICTS.  IN THE WOHL CASE, THE
COURT'S OPINION AT P. 775 FOUND NO "VIOLENCE, FORCE OR COERCION, OR
CONDUCT OTHERWISE UNLAWFUL OR OPPRESSIVE" AND SAID THAT "A STATE IS NOT
REQUIRED TO TOLERATE IN ALL PLACES  ...  EVEN PEACEFUL PICKETING BY AN
INDIVIDUAL."  A CONCURRING OPINION IN THE WOHL CASE, AT PP. 776-777,
POINTED OUT THAT PICKETING MAY INCLUDE CONDUCT OTHER THAN SPEECH,
CONDUCT WHICH CAN BE MADE THE SUBJECT OF RESTRICTIVE LEGISLATION.  NO
OPINIONS RELIED ON BY PETITIONERS ASSERT A CONSTITUTIONAL RIGHT IN
PICKETERS TO TAKE ADVANTAGE OF SPEECH OR PRESS TO VIOLATE VALID LAWS
DESIGNED TO PROTECT IMPORTANT INTERESTS OF SOCIETY.  FN5 

WE THINK THE CIRCUMSTANCES HERE AND THE REASONS ADVANCED BY THE
MISSOURI COURTS JUSTIFY RESTRAINT OF THE PICKETING WHICH WAS DONE IN
VIOLATION OF MISSOURI'S VALID LAW FOR THE SOLE IMMEDIATE PURPOSE OF
CONTINUING A VIOLATION OF LAW.  IN HOLDING THIS, WE ARE MINDFUL OF THE
ESSENTIAL IMPORTANCE TO OUR SOCIETY OF A VIGILANT PROTECTION OF FREEDOM
OF SPEECH AND PRESS.  BRIDGES V. CALIFORNIA, 314 U.S. 252, 263.  STATES
CANNOT CONSISTENTLY WITH OUR CONSTITUTION ABRIDGE THOSE FREEDOMS TO
OBVIATE SLIGHT INCONVENIENCES OR ANNOYANCES.  SCHNEIDER V. STATE, 308
U.S. 147, 162.  BUT PLACARDS USED AS AN ESSENTIAL AND INSEPARABLE PART
OF A GRAVE OFFENSE AGAINST AN IMPORTANT PUBLIC LAW CANNOT IMMUNIZE THAT
UNLAWFUL CONDUCT FROM STATE CONTROL.  VIRGINIA ELECTRIC CO. V. BOARD,
319 U.S. 533, 539; THOMAS V. COLLINS, 323 U.S. 516, 536, 537, 538, 539
540.  NOR CAN WE SAY THAT THE PUBLICATION HERE SHOULD NOT HAVE BEEN
RESTRAINED BECAUSE OF THE POSSIBILITY OF SEPARATING THE PICKETING
CONDUCT INTO ILLEGAL AND LEGAL PARTS.  THOMAS V. COLLINS, SUPRA, AT
547.  FOR THE PLACARDS WERE TO EFFECTUATE THE PURPOSES OF AN UNLAWFUL
COMBINATION, AND THEIR SOLE, UNLAWFUL IMMEDIATE OBJECTIVE WAS TO INDUCE
EMPIRE TO VIOLATE THE MISSOURI LAW BY ACQUIESCING IN UNLAWFUL DEMANDS
TO AGREE NOT TO SELL ICE TO NONUNION PEDDLERS.  IT IS TRUE THAT THE
AGREEMENTS AND COURSE OF CONDUCT HERE WERE AS IN MOST INSTANCES BROUGHT
ABOUT THROUGH SPEAKING OR WRITING.  BUT IT HAS NEVER BEEN DEEMED AN
ABRIDGMENT OF FREEDOM OF SPEECH OR PRESS TO MAKE A COURSE OF CONDUCT
ILLEGAL MERELY BECAUSE THE CONDUCT WAS IN PART INITIATED, EVIDENCED, OR
CARRIED OUT BY MEANS OF LANGUAGE, EITHER SPOKEN, WRITTEN, OR PRINTED. 
SEE E.G., FOX V. WASHINGTON, 236 U.S. 273, 277; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568.  SUCH AN EXPANSIVE INTERPRETATION OF THE
CONSTITUTIONAL GUARANTIES OF SPEECH AND PRESS WOULD MAKE IT PRACTICALLY
IMPOSSIBLE EVER TO ENFORCE LAWS AGAINST AGREEMENTS IN RESTRAINT OF
TRADE AS WELL AS MANY OTHER AGREEMENTS AND CONSPIRACIES DEEMED
INJURIOUS TO SOCIETY. 

THE INTEREST OF MISSOURI IN ENFORCEMENT OF ITS ANTITRUST LAWS CANNOT
BE CLASSIFIED AS AN EFFORT TO OUTLAW ONLY A SLIGHT PUBLIC INCONVENIENCE
OR ANNOYANCE.  THE MISSOURI POLICY AGAINST RESTRAINTS OF TRADE IS OF
LONG STANDING AND IS IN MOST RESPECTS THE SAME AS THAT WHICH THE
FEDERAL GOVERNMENT HAS FOLLOWED FOR MORE THAN HALF A CENTURY.  IT IS
CLEARLY DRAWN IN AN ATTEMPT TO AFFORD ALL PERSONS AN EQUAL OPPORTUNITY
TO BUY GOODS.  THERE WAS CLEAR DANGER, IMMINENT AND IMMEDIATE, THAT
UNLESS RESTRAINED, APPELLANTS WOULD SUCCEED IN MAKING THAT POLICY A
DEAD LETTER INSOFAR AS PURCHASES BY NONUNION MEN WERE CONCERNED. 
APPELLANTS' POWER WITH THAT OF THEIR ALLIES WAS IRRESISTIBLE.  AND IT
IS CLEAR THAT APPELLANTS WERE DOING MORE THAN EXERCISING A RIGHT OF
FREE SPEECH OR PRESS.  BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769, 776
777.  THEY WERE EXERCISING THEIR ECONOMIC POWER TOGETHER WITH THAT OF
THEIR ALLIES TO COMPEL EMPIRE TO ABIDE BY UNION RATHER THAN BY STATE
REGULATION OF TRADE.  FN6 

WHAT WE HAVE SAID EMPHASIZES THAT THIS IS NOT A CASE IN WHICH IT CAN
BE ASSUMED THAT INJURY FROM APPELLANTS' CONDUCT WOULD BE LIMITED TO
THIS SINGLE APPELLEE.  THORNHILL V. ALABAMA, 310 U.S. 88, 104-105. 
MISSOURI, ACTING WITHIN ITS POWER, HAS DECIDED THAT SUCH RESTRAINTS OF
TRADE AS PETITIONERS SOUGHT ARE AGAINST THE INTERESTS OF THE WHOLE
PUBLIC.  THIS DECISION IS IN ACCORD WITH THE GENERAL IDEAS UNDERLYING
ALL ANTI-TRADE-RESTRAINT LAWS.  IT IS NOT FOR US TO OVERRULE THIS
CLEARLY ADOPTED STATE POLICY. 

WHILE THE STATE OF MISSOURI IS NOT A PARTY IN THIS CASE, IT IS PLAIN
THAT THE BASIC ISSUE IS WHETHER MISSOURI OR A LABOR UNION HAS PARAMOUNT
CONSTITUTIONAL POWER TO REGULATE AND GOVERN THE MANNER IN WHICH CERTAIN
TRADE PRACTICES SHALL BE CARRIED ON IN KANSAS CITY, MISSOURI.  MISSOURI
HAS BY STATUTE REGULATED TRADE ONE WAY.  THE APPELLANT UNION MEMBERS
HAVE ADOPTED A PROGRAM TO REGULATE IT ANOTHER WAY.  THE STATE HAS
PROVIDED FOR ENFORCEMENT OF ITS STATUTORY RULE BY IMPOSING CIVIL AND
CRIMINAL SANCTIONS.  THE UNION HAS PROVIDED FOR ENFORCEMENT OF ITS RULE
BY SANCTIONS AGAINST UNION MEMBERS WHO CROSS PICKET LINES.  SEE
ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 19; FASHION GUILD V.
TRADE COMM'N, SUPRA, AT 465; ADDYSTON PIPE & STEEL CO. V. UNITED
STATES, 175 U.S. 211, 242.  WE HOLD THAT THE STATE'S POWER TO GOVERN IN
THIS FIELD IS PARAMOUNT, AND THAT NOTHING IN THE CONSTITUTIONAL
GUARANTIES OF SPEECH OR PRESS COMPELS A STATE TO APPLY OR NOT TO APPLY
ITS ANTI-TRADE-RESTRAINT LAW TO GROUPS OF WORKERS, BUSINESSMEN OR
OTHERS.  OF COURSE THIS COURT DOES NOT PASS ON THE WISDOM OF THE
MISSOURI STATUTE.  WE HOLD ONLY THAT AS HERE CONSTRUED AND APPLIED IT
DOES NOT VIOLATE THE FEDERAL CONSTITUTION.  AFFIRMED. 

FN1  "COMBINATIONS IN RESTRAINT OF TRADE DECLARED A CONSPIRACY 

"ANY PERSON WHO SHALL CREATE, ENTER INTO, BECOME A MEMBER OF OR
PARTICIPATE IN ANY POOL, TRUST, AGREEMENT, COMBINATION, CONFEDERATION
OR UNDERSTANDING WITH ANY PERSON OR PERSONS IN RESTRAINT OF TRADE OR
COMPETITION IN THE IMPORTATION, TRANSPORTATION, MANUFACTURE, PURCHASE
OR SALE OF ANY PRODUCT OR COMMODITY IN THIS STATE, OR ANY ARTICLE OR
THING BOUGHT OR SOLD WHATSOEVER, SHALL BE DEEMED AND ADJUDGED GUILTY OF
A CONSPIRACY IN RESTRAINT OF TRADE, AND SHALL BE PUNISHED AS PROVIDED
IN THIS ARTICLE."  MO. REV. STAT. ANN. SEC. 8301(1939). 

AND SEC. 8305 PROVIDES THAT ANYONE VIOLATING SEC. 8301 "SHALL BE
ADJUDGED GUILTY OF A FELONY, AND UPON CONVICTION THEREOF SHALL BE
PUNISHED BY IMPRISONMENT IN THE PENITENTIARY NOT EXCEEDING FIVE YEARS,
OR BY IMPRISONMENT IN THE COUNTY JAIL NOT EXCEEDING ONE YEAR, OR BY A
FINE OF NOT LESS THAN FIVE HUNDRED DOLLARS NOR MORE THAN FIVE THOUSAND
DOLLARS, OR BY BOTH SUCH FINE AND IMPRISONMENT."  MO. REV. STAT. ANN.
SEC. 8305(1939). 

FN2  APPELLANTS SAY, AFTER QUOTING FROM A CONCURRING OPINION IN
UNITED STATES V. HUTCHESON, 312 U.S. 219, 243, "WE BELIEVE, THEREFORE,
THAT IT IS PERFECTLY CLEAR THAT A STATE MAY NOT APPLY EITHER STATUTORY
OR COMMON LAW POLICIES CONCERNING RESTRAINT OF TRADE TO ILLEGALIZE
COMBINATIONS AMONG WORKINGMEN FOR THE PURPOSE OF ELIMINATING WAGE
COMPETITION THROUGHOUT A TRADE OR INDUSTRY."  AND PETITIONERS FURTHER
ARGUE THAT A STATE MAY NOT "MAKE IT UNLAWFUL FOR AN EMPLOYER TO
ACQUIESCE IN UNION DEMANDS THAT HE REFRAIN FROM SUPPLYING GOODS TO
NONUNION PEDDLERS  ...  " 

FN3  IN THE INTERNATIONAL HARVESTER CO. CASE, 234 U.S. 199, THE THEN
MISSOURI STATUTE WAS CONSTRUED AS INAPPLICABLE TO COMBINATIONS OF
PURCHASERS AND LABORERS.  FOR THIS REASON THE STATUTE WAS CHALLENGED AS
DENYING EQUAL PROTECTION OF THE LAWS.  REPLYING TO THE CHALLENGE, THIS
COURT SAID AT P. 210:  "WHETHER IT WOULD HAVE BEEN BETTER POLICY TO
HAVE MADE SUCH COMPREHENSIVE CLASSIFICATION IT IS NOT OUR PROVINCE TO
DECIDE.  IN OTHER WORDS, WHETHER A COMBINATION OF WAGE EARNERS OR
PURCHASERS OF COMMODITIES CALLED FOR REPRESSION BY LAW UNDER THE
CONDITIONS IN THE STATE WAS FOR THE LEGISLATURE OF THE STATE TO
DETERMINE." 

FN4  EASTERN STATES LUMBER DEALERS V. UNITED STATES, 234 U.S. 600,
WAS CITED IN NOTE 21.  IN THAT CASE THE LUMBER ASSOCIATION WAS A
COMBINATION OF RETAIL LUMBER DEALERS FOUND BY THE COURT TO HAVE
CONSPIRED TO PREVENT WHOLESALE DEALERS FROM SELLING DIRECTLY TO
CONSUMERS OF LUMBER.  THE SOLE BASIS FOR THE INJUNCTION WAS THE
DISTRIBUTION AND DISSEMINATION OF TRUTHFUL INFORMATION BY THE
ASSOCIATION TO ITS MEMBERS IN AN OFFICIAL REPORT.  THIS COURT SUSTAINED
THE DECREE WHICH BROADLY ENJOINED THE DISTRIBUTION OF THIS TRUTHFUL
INFORMATION. 

THE CASES CITED IN NOTE 21 OF THE THORNHILL OPINION INCLUDE THE
FOLLOWING, STRONGLY EMPHASIZING STATES' POWERS TO REGULATE THEIR
INTERNAL INDUSTRIAL AND ECONOMIC AFFAIRS AND REJECTING CONTENTIONS THAT
CHALLENGED REGULATIONS VIOLATED THE FEDERAL CONSTITUTION.  SENN V. TILE
LAYERS UNION, 301 U.S. 468; WEST COAST HOTEL CO. V. PARRISH, 300 U.S.
379; NEBBIA V. NEW YORK, 291 U.S. 502; DORCHY V. KANSAS, 272 U.S. 306;
AIKENS V. WISCONSIN, 195 U.S. 194; HOLDEN V. HARDY, 169 U.S. 366. 
ANOTHER CASE CITED IN NOTE 21 OF THE THORNHILL OPINION WAS ETHYL
GASOLINE CORP. V. UNITED STATES, 309 U.S. 436.  IT ALSO INVOLVED A
VIOLATION OF THE FEDERAL ANTITRUST LAWS, AND ONCE AGAIN THIS COURT
SUSTAINED THE POWER OF THE GOVERNMENT TO ENJOIN TRADE PRACTICES DEEMED
IN VIOLATION OF THOSE LAWS.  THE ONLY OTHER CASE CITED IN NOTE 21,
LABOR BOARD V. NEWPORT NEWS CO., 308 U.S. 241, SUSTAINED AN ORDER
AGAINST AN EMPLOYER WHICH RESTRAINED IT FROM USING ITS INFLUENCE OVER
EMPLOYEES TO INTERFERE WITH THEIR ACTIVITIES. 

FN5  BOTH PARTIES HERE RELY ON THE RITTER CASE.  EMPIRE CONTENDS THAT
THIS COURT AFFIRMED THE ACTION OF THE TEXAS COURTS ON THE BASIS OF THE
STATE'S ANTITRUST LAW.  APPELLANTS ARGUE THAT THIS COURT UPHELD THE
TEXAS INJUNCTION ON THE GROUND THAT THE BUSINESS PICKETED DID NOT BEAR
A SUFFICIENTLY CLOSE RELATION TO THE LABOR DISPUTE TO JUSTIFY PICKETING
AT THAT PLACE.  SINCE THE COURT RELIED ON THIS GROUND, APPELLANTS
CONTEND THAT THE COURT IMPLIEDLY REJECTED THE CONTENTION THAT THE
INJUNCTION WAS JUSTIFIED BECAUSE OF AN ALLEGED VIOLATION OF THE
ANTITRUST LAWS.  THIS COURT'S OPINION IN THE RITTER CASE, AS WELL AS
THE DISSENTS, DID EMPHASIZE QUESTIONS OTHER THAN THE ANTITRUST ACT
CONTENTIONS.  THE COURT OF CIVIL APPEALS OF TEXAS HAD NOT MENTIONED THE
TEXAS ANTITRUST LAWS IN ITS FIRST OR SECOND OPINION IN THE RITTER
CASE.  138 S.W.2D 223, 149 S.W.2D 694.  A THIRD OPINION, DENYING
REHEARING, DID MAKE REFERENCE FOR THE FIRST TIME TO THE STATE'S
ANTITRUST LAWS, BUT DID NOT DEFINITELY POINT OUT IN WHAT WAY THE
PICKETERS' CONDUCT VIOLATED ANY SPECIFIC PROVISION OF THESE LAWS.  149
S.W.2D 694, 699.  UNDER THESE CIRCUMSTANCES NOTHING THAT WAS SAID IN
THE RITTER OPINION STANDS FOR THE PRINCIPLE THAT SPEECH AND WRITINGS,
UTILIZED AS A PART OF CONDUCT ENGAGED IN ONLY TO BREAK A VALID ANTI
TRADE-RESTRAINT LAW, RENDER THAT COURSE OF CONDUCT IMMUNE FROM STATE
CONTROL. 

FN6  "PICKETING BY AN ORGANIZED GROUP IS MORE THAN FREE SPEECH, SINCE
IT INVOLVES PATROL OF A PARTICULAR LOCALITY AND SINCE THE VERY PRESENCE
OF A PICKET LINE MAY INDUCE ACTION OF ONE KIND OR ANOTHER, QUITE
IRRESPECTIVE OF THE NATURE OF THE IDEAS WHICH ARE BEING DISSEMINATED. 
HENCE THOSE ASPECTS OF PICKETING MAKE IT THE SUBJECT OF RESTRICTIVE
REGULATION."  BAKERY DRIVERS LOCAL V. WOHL, SUPRA, AT 776-777. 

THE OPINION IN THOMAS V. COLLINS, 323 U.S. 516, 537-538 STATED:  "
...  WHEN TO THIS PERSUASION OTHER THINGS ARE ADDED WHICH BRING ABOUT
COERCION, OR GIVE IT THAT CHARACTER, THE LIMIT OF THE RIGHT HAS BEEN
PASSED.  ...  BUT SHORT OF THAT LIMIT THE EMPLOYER'S FREEDOM CANNOT BE
IMPAIRED.  THE CONSTITUTION PROTECTS NO LESS THE EMPLOYEES' CONVERSE
RIGHT.  OF COURSE ESPOUSAL OF THE CAUSE OF LABOR IS ENTITLED TO NO
HIGHER CONSTITUTIONAL PROTECTION THAN THE ESPOUSAL OF ANY OTHER LAWFUL
CAUSE.  IT IS ENTITLED TO THE SAME PROTECTION."    A CONCURRING OPINION
IN THOMAS V. COLLINS, AT 543-544, STATED THIS:  "BUT ONCE HE USES THE
ECONOMIC POWER WHICH HE HAS OVER OTHER MEN AND THEIR JOBS TO INFLUENCE
THEIR ACTION, HE IS DOING MORE THAN EXERCISING THE FREEDOM OF SPEECH
PROTECTED BY THE FIRST AMENDMENT.  THAT IS TRUE WHETHER HE BE AN
EMPLOYER OR AN EMPLOYEE.  BUT AS LONG AS HE DOES NO MORE THAN SPEAK HE
HAS THE SAME UNFETTERED RIGHT, NO MATTER WHAT SIDE OF AN ISSUE HE
ESPOUSES." 
..END :






















UNITED STATES V. KNIGHT, 336 U.S. 505 


NO. 406.  ARGUED MARCH 4, 1949.  - DECIDED APRIL 4, 1949.  - 169 F.2D
1001, REVERSED. 


1.  RESPONDENT WAS INDICTED FOR AIDING AND ABETTING A TRUSTEE IN
BANKRUPTCY TO APPROPRIATE PROPERTY OF THE BANKRUPTCY ESTATE IN
VIOLATION OF THE BANKRUPTCY ACT, AND FOR CONSPIRING TO DO SO.  THE CASE
HINGED ON WHETHER CERTAIN FUNDS RECEIVED BY THE TRUSTEE AND HIS
COUNSEL, AND FOR WHICH THEY DID NOT ACCOUNT, WERE FUNDS OF THE ESTATE
OR GIFTS BY A THIRD PARTY FROM HIS OWN PROPERTY.  THERE WAS SUBSTANTIAL
EVIDENCE TO SUPPORT EITHER VIEW.  THE JURY FOUND RESPONDENT GUILTY AND
HE WAS SENTENCED TO PAY A FINE.  THE COURT OF APPEALS REVERSED HIS
CONVICTION AND DIRECTED ENTRY OF A JUDGMENT OF ACQUITTAL.  HELD:  THE
COURT OF APPEALS' REVERSAL WAS AN IMPROPER INTERFERENCE WITH THE JURY
FUNCTION, AND ITS JUDGMENT IS REVERSED.  PP. 506-509. 

2.  ALL OF THE CONSIDERATION WHICH IS PAID FOR A BANKRUPT'S ASSETS
BECOMES PART OF THE ESTATE; AND NO DEVICE OR ARRANGEMENT, HOWEVER
SUBTLE, CAN SUBTRACT OR DIVERT ANY OF IT.  PP. 508-509. 

3.  A DIFFERENT RESULT IS NOT REQUIRED IN THIS CASE BY THE CLAIM THAT
THE FUNDS IN QUESTION WERE PAID BY THE PURCHASER OF THE ASSETS AT A
TIME WHEN THE RIGHTS OF CREDITORS AND STOCKHOLDERS IN THE ESTATE HAD
BEEN FIXED AND ALL ALLOWANCES HAD BEEN DETERMINED.  P. 509. 

UNITED STATES V. KNIGHT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

RESPONDENT WAS CONVICTED FOR AIDING AND ABETTING A VIOLATION OF THE
BANKRUPTCY ACT AND FOR CONSPIRACY.  THE COURT OF APPEALS REVERSED.  169
F.2D 1001.  THIS COURT GRANTED CERTIORARI.  335 U.S. 901.  REVERSED, P.
509. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ROBERT MICHAEL WAS TRUSTEE IN BANKRUPTCY OF THE CENTRAL FORGING CO.
AND DONALD REIFSNYDER WAS HIS COUNSEL.  MAXI MANUFACTURING CO. WAS A
COMPETITOR OF CENTRAL AND ONE OF ITS CREDITORS.  GEORGE FENNER AND
RESPONDENT HARRY S. KNIGHT WERE ATTORNEYS FOR MAXI.  AFTER NEGOTIATIONS
WHICH IT IS UNNECESSARY TO RELATE HERE, A PLAN OF REORGANIZATION UNDER
CH. X OF THE BANKRUPTCY ACT, 52 STAT. 883, 11 U.S.C. SEC. 501 ET SEQ.,
WAS APPROVED BY THE COURT AND ACCEPTED BY MORE THAN TWO-THIRDS OF THE
CREDITORS.  UNDER THIS PLAN MAXI WAS TO ACQUIRE ALL THE ASSETS OF
CENTRAL; THE STOCKHOLDERS OF CENTRAL WERE TO RECEIVE NOTHING; THE
SECURED CREDITORS OF CENTRAL WERE TO RECEIVE 20 PER CENT AND ITS
UNSECURED CREDITORS 5 PER CENT OF THEIR CLAIMS IN BONDS OF MAXI; AND
ALL TAXES, COSTS, AND EXPENSES OF THE REORGANIZATION WERE TO BE PAID IN
FULL IN CASH BY THE TRUSTEE.  THE CASH REQUIREMENTS OF THE PLAN WERE TO
BE FURNISHED BY MAXI. 

THE AMOUNT OF THOSE REQUIREMENTS AND THE NATURE OF MAXI'S COMMITMENT
ARE SOURCES OF THE PRESENT CONTROVERSY.  MICHAEL AND REIFSNYDER
CONCEDEDLY OBTAINED FUNDS IN CONNECTION WITH THE REORGANIZATION FOR
WHICH THEY DID NOT ACCOUNT.  IT IS THE THEORY OF THE PROSECUTION THAT
THOSE FUNDS WERE PART OF THE BANKRUPTCY ESTATE.  IT IS THE THEORY OF
THE DEFENSE THAT THEY WERE GIFTS BY MAXI OF ITS OWN PROPERTY. 

THERE WAS EVIDENCE (INCLUDING MICHAEL'S TESTIMONY IN THIS CASE AND
ONE CONSTRUCTION OF RESPONDENT'S TESTIMONY CONCERNING THE SAME
TRANSACTIONS IN AN EARLIER CONTEMPT CASE AGAINST MICHAEL) THAT MAXI
AGREED TO PAY $26,404.33 IN CASH FOR CENTRAL'S NET CURRENT ASSETS IN
ADDITION TO THE $17,000 IN BONDS.  IF THIS VERSION OF THE TRANSACTION
WERE BELIEVED, THERE WAS A SCHEME TO VALUE THE ASSETS OF CENTRAL AT
$3,000 LESS THAN $26,404.33 AND TO DIVERT THE $3,000 TO MICHAEL'S AND
REIFSNYDER'S OWN ENDS. 

THERE WAS ANOTHER VERSION OF THIS PHASE OF THE PLAN WHICH IS ALSO
SUPPORTED BY EVIDENCE, VIZ. THAT MAXI WAS TO PAY IN CASH ALL EXPENSES
OF THE REORGANIZATION PROVIDED THEY DID NOT EXCEED $26,404.33.  IN THIS
VIEW THE DIFFERENCE BETWEEN $26,404.33 AND THE EXPENSES ALLOWED BY THE
COURT, $23,404.33, WAS MAXI'S TO DO WITH AS IT PLEASED. 

THE COURT CONFIRMED THE PLAN AND ORDERED THE TRANSFER OF ALL OF
CENTRAL'S ASSETS TO MAXI ON RECEIPT OF THE BONDS AND ON PAYMENT OF THE
COSTS AND EXPENSES AS ALLOWED BY THE COURT, "WITHIN THE LIMITS OF THE
FUNDS AS SET FORTH IN THE TRUSTEE'S REPORT FILED APRIL 15, 1942."  THAT
REPORT LISTED THE NET CURRENT ASSETS OF CENTRAL AT $23,404.33.  THERE
WAS SOME EVIDENCE THAT THE VALUE OF THOSE ASSETS HAD BEEN FALSIFIED IN
THE REPORT BY DEDUCTING $3,000 FROM THE ACCOUNTS RECEIVABLE. 

THE EXPENSES APPROVED BY THE COURT AND PAID BY MAXI INCLUDED
ALLOWANCES FOR THE FEES AND EXPENSES OF MICHAEL AND REIFSNYDER.  KNIGHT
ARRANGED FOR MAXI ALSO TO DRAW A CHECK FOR $3,000 TO FENNER WHICH
FENNER CASHED AND, AFTER DEDUCTING $500 FOR INCOME TAX, PAID OVER TO
MICHAEL AND REIFSNYDER WHO NEVER ACCOUNTED TO THE COURT FOR IT. 

KNIGHT AND FENNER WERE INDICTED FOR AIDING AND ABETTING MICHAEL TO
APPROPRIATE PROPERTY OF THE BANKRUPTCY ESTATE IN VIOLATION OF THE
BANKRUPTCY ACT, 30 STAT. 554, AS AMENDED, 11 U.S.C. SEC. 52(A),  FN1
AND FOR CONSPIRING WITH MICHAEL AND OTHERS TO DO THE SAME.  KNIGHT AND
FENNER WERE FOUND GUILTY BY A JURY ON ALL COUNTS.  KNIGHT WAS FINED
$1,000.  THE COURT OF APPEALS REVERSED HIS CONVICTION AND DIRECTED
ENTRY OF A JUDGMENT OF ACQUITTAL, ONE JUDGE DISSENTING.  169 F.2D
1001.  THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE GRANTED
BECAUSE OF THE IMPORTANCE OF THE RULING IN THE ADMINISTRATION OF THE
BANKRUPTCY ACT. 

THERE WAS SUBSTANTIAL EVIDENCE THAT MAXI AGREED TO PAY $26,404.33 FOR
THE NET CURRENT ASSETS OF CENTRAL AND THAT KNIGHT WAS PARTY TO A SCHEME
TO DIVERT $3,000 OF THAT CONSIDERATION TO THE PERSONAL ENDS OF MICHAEL
AND REIFSNYDER.  IT WAS THEREFORE AN IMPROPER INTERFERENCE WITH THE
JURY'S FUNCTION FOR THE COURT OF APPEALS TO REJECT THAT THEORY OF THE
CASE AND TO ACCEPT ONE WHICH TO IT SEEMED MORE CREDIBLE.  SEE GLASSER
V. UNITED STATES, 315 U.S. 60, 80; KOTTEAKOS V. UNITED STATES, 328 U.S.
750, 763-764. 

BUT EVEN IF, AS THE DEFENSE URGES, MAXI ONLY AGREED TO PAY EXPENSES
UP TO $26,404.33, THE RESULT IS THE SAME.  MAXI IN FACT PAID THAT
AMOUNT.  IT WAS PAID IN CONNECTION WITH THE REORGANIZATION.  IT WAS
PAID FOR SERVICES ALLEGEDLY RENDERED BY MICHAEL AND REIFSNYDER IN THE
PROCEEDINGS.  IT WAS PAID SECRETLY AND IN A DEVIOUS WAY.  THE ASSETS OF
THE ESTATE WHICH WERE TRANSFERRED TO MAXI WERE WORTH $26,404.33.  THIS
IS A SUBSTANTIAL SHOWING THAT $26,404.33 WAS IN FACT PAID FOR THE
ASSETS AND THAT THE FORM OF THE ARRANGEMENT SERVED ONLY TO SYPHON A
PART OF THE CONSIDERATION TO MICHAEL AND REIFSNYDER WITHOUT COURT
APPROVAL. 

ALL THE CONSIDERATION WHICH IS PAID FOR A BANKRUPT'S ASSETS BECOMES
PART OF THE ESTATE.  NO DEVICE OR ARRANGEMENT, HOWEVER SUBTLE, CAN
SUBTRACT OR DIVERT ANY OF IT.  IT IS THE SUBSTANCE OF THE TRANSACTION,
NOT ITS FORM, WHICH CONTROLS.  IF THAT REQUIREMENT WERE NOT RIGIDLY
ENFORCED, CONTROL OF THE PLAN OF REORGANIZATION  FN2  AND CONTROL OF
ALLOWANCES  FN3  WOULD PASS FROM THE COURT TO THE PARTIES.  THAT WOULD
SUBVERT THE STATUTORY SCHEME. 

THIS CONSEQUENCE IS SOUGHT TO BE AVOIDED HERE BY THE ARGUMENT THAT
WHEN THE $3,000 WAS DIVERTED TO MICHAEL AND REIFSNYDER, THE RIGHTS OF
CREDITORS AND STOCKHOLDERS IN THE ESTATE HAD BEEN FIXED AND ALL THE
ALLOWANCES HAD BEEN DETERMINED.  IT IS THEREFORE SAID THAT THERE WOULD
HAVE BEEN NO RIGHTFUL CLAIMANTS TO THE MONEY HAD IT BEEN PAID INTO
COURT.  BY THAT PROCEDURE PARTIES WOULD ARROGATE TO THEMSELVES THE
CONTROL OVER THE ESTATE WHICH CONGRESS HAS ENTRUSTED TO THE BANKRUPTCY
JUDGE.  FN4  REVERSED. 

FN1  "A PERSON SHALL BE PUNISHED BY IMPRISONMENT FOR A PERIOD OF NOT
TO EXCEED FIVE YEARS OR BY A FINE OF NOT MORE THAN $5,000, OR BOTH,
UPON CONVICTION OF THE OFFENSE OF HAVING KNOWINGLY AND FRAUDULENTLY
APPROPRIATED TO HIS OWN USE, EMBEZZLED, SPENT, OR UNLAWFULLY
TRANSFERRED ANY PROPERTY OR SECRETED OR DESTROYED ANY DOCUMENT
BELONGING TO THE ESTATE OF A BANKRUPT WHICH CAME INTO HIS CHARGE AS
TRUSTEE, RECEIVER, CUSTODIAN, MARSHAL, OR OTHER OFFICER OF THE COURT." 

FN2  EVEN AFTER CONFIRMATION OF THE PLAN OF REORGANIZATION UNDER SEC.
221 OF CH. X, IT MAY BE ALTERED OR MODIFIED PURSUANT TO THE PROCEDURE
PRESCRIBED IN SEC. 222. 

FN3  SEE SECS. 241-244 OF CH. X; LEIMAN V. GUTTMAN, 336 U.S. 1. 

FN4  SEE NOTE 2, SUPRA. 

MR. JUSTICE MURPHY, MR. JUSTICE JACKSON, AND MR. JUSTICE RUTLEDGE
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE COURT OF APPEALS, SPEAKING THROUGH ONE OF THE MOST CONSCIENTIOUS
AND EXPERIENCED OF JUDGES, THUS SUMMARIZED THE PROBLEM OF THE CASE: 

"THE WHOLE TRANSACTION WAS HIGHLY REPREHENSIBLE AND IT MAY WELL HAVE
INVOLVED THE COMMISSION OF A CRIMINAL OFFENSE.  INDEED UNDER ANOTHER
INDICTMENT DEFENDANT MICHAEL PLEADED GUILTY TO ANOTHER CHARGE GROWING
OUT OF THESE OCCURRENCES.  THE QUESTION BEFORE US, HOWEVER, IS NOT
WHETHER THE DEFENDANT KNIGHT COMMITTED ANY CRIME BUT ONLY WHETHER HE
AIDED AND ABETTED MICHAEL TO VIOLATE SECTION 29, SUB. A, IN THE MANNER
DESCRIBED IN THE INDICTMENT."  169 F.2D 1001, 1005.  THE COURT
CONCLUDED THAT THE EVIDENCE DID NOT SUPPORT THE CHARGES MADE IN THE
INDICTMENT AND THAT THE MOTION FOR A DIRECTED VERDICT SHOULD HAVE BEEN
GRANTED.  AT THE BAR OF THIS COURT THE GOVERNMENT DISAVOWED THE
PRESENCE OF ANY QUESTION OF LAW IN THE CASE EXCEPT THE QUESTION WHETHER
THE RECORD WARRANTED SUBMISSION OF THE CASE TO THE JURY AS THE DISTRICT
COURT THOUGHT, AND AS THE COURT OF APPEALS THOUGHT NOT.  THE GOVERNMENT
CONCEDED UNRESERVEDLY THAT THE CORRECTNESS OF THIS DECISION TURNS
ENTIRELY ON THE FACTS OF THIS PARTICULAR CASE.  WE OUGHT NOT TO BE
CALLED UPON TO CANVASS A RECORD OF 870 PAGES TO DETERMINE WHETHER THE
DISTRICT COURT PROPERLY VIEWED THE FACTS IN RELATION TO THE CHARGE, OR
WHETHER THE APPRAISAL MADE BY THE COURT OF APPEALS WAS RIGHT.  I DO NOT
PROPOSE TO DO SO.  ONE APPELLATE REVIEW OF THE FACTS SHOULD SUFFICE,
EVEN WHEN THE REVIEW GOES AGAINST THE GOVERNMENT. 

IT HAVING APPEARED, AFTER THE WRIT OF CERTIORARI WAS GRANTED, THAT
THE CASE MERELY INVOLVES WEIGHING EVIDENCE, I THINK THE WRIT SHOULD BE
DISMISSED AS HAVING BEEN IMPROVIDENTLY GRANTED. 
..END :




















FARRELL V. UNITED STATES, 336 U.S. 511 


NO. 267.  ARGUED JANUARY 14, 1949.  - DECIDED APRIL 4, 1949.  - 167 F.2D
781, AFFIRMED. 


1.  A SEAMAN SERVING ON A MERCHANT VESSEL, OWNED AND OPERATED BY THE
UNITED STATES IN WARTIME AND DOCKED AT A CONQUERED PORT IN THE WAR
AREA, WAS INJURED WHILE RETURNING TO THE SHIP AFTER OVERSTAYING SHORE
LEAVE.  HE WAS TREATED IN GOVERNMENT HOSPITALS UNTIL DISCHARGED AS
COMPLETELY DISABLED.  THERE WAS NO POSSIBILITY OF FURTHER CURE,
ALTHOUGH MEDICAL ATTENTION MIGHT BE REQUIRED FROM TIME TO TIME TO
RELIEVE RECURRING CONDITIONS.  HELD:  THE LIABILITY FOR MAINTENANCE AND
CURE DOES NOT EXTEND BEYOND THE TIME WHEN THE MAXIMUM CURE POSSIBLE HAS
BEEN EFFECTED, AND PETITIONER IS NOT ENTITLED TO MAINTENANCE SO LONG AS
HE IS DISABLED OR FOR LIFE.  PP. 512-519. 

2.  THE SHIP'S ARTICLES WHICH PETITIONER SIGNED PROVIDED FOR A
FOREIGN VOYAGE FROM THE UNITED STATES AND RETURN AND FOR A TERM "NOT
EXCEEDING" TWELVE MONTHS.  HELD:  HE WAS ENTITLED TO WAGES ONLY UNTIL
THE COMPLETION OF THE VOYAGE AND NOT FOR TWELVE MONTHS FROM THE DATE OF
SIGNING.  PP. 519-521. 

FARRELL V. UNITED STATES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

IN A SUIT IN ADMIRALTY BY PETITIONER AGAINST THE UNITED STATES AND
OTHERS, THE DISTRICT COURT AWARDED PETITIONER LESS THAN THE AMOUNTS HE
HAD CLAIMED FOR MAINTENANCE AND CURE AND FOR WAGES.  THE COURT OF
APPEALS AFFIRMED.  167 F.2D 781.  THIS COURT GRANTED CERTIORARI.  335
U.S. 869.  AFFIRMED, P. 521. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A SEAMAN, BROUGHT SUIT IN ADMIRALTY TO RECOVER DAMAGES
UNDER THE JONES ACT, 41 STAT. 1007, 46 U.S.C. SEC. 688, AND
MAINTENANCE, CURE AND WAGES UNDER MARITIME LAW.  THE ISSUE OF
NEGLIGENCE WAS DECIDED AGAINST HIM BY BOTH COURTS BELOW AND THE CLAIM
IS ABANDONED HERE.  PETITION FOR CERTIORARI TO REVIEW OTHER ISSUES WAS
GRANTED.  335 U.S. 869. 

                      I. MAINTENANCE AND CURE. 

THE FACTS WHICH OCCASION MAINTENANCE AND CURE FOR THIS SEAMAN ARE NOT
IN DISPUTE.  THE CLAIMANT, 22 YEARS OF AGE AND IN GOOD HEALTH, WAS A
MEMBER OF THE MERCHANT MARINE.  HE WAS IN THE SERVICE OF THE S.S. JAMES
E. HAVILAND, A MERCHANT VESSEL OWNED AND OPERATED BY THE UNITED STATES
AS A CARGO AND TROOP SHIP.  ON FEBRUARY 5, 1944, SHE WAS DOCKED AT
PALERMO, SICILY, AND FARRELL WAS GRANTED SHORE LEAVE WHICH REQUIRED HIS
RETURN TO THE SHIP BY 6 P.M. OF THE SAME DAY.  HE OVERSTAYED HIS LEAVE
AND ABOUT EIGHT O'CLOCK BEGAN, IN RAIN AND DARKNESS, TO MAKE HIS WAY TO
THE SHIP.  HE BECAME LOST AND WAS MISDIRECTED TO THE WRONG GATE, BY
WHICH HE ENTERED THE SHORE-FRONT AREA ABOUT A MILE FROM WHERE THE SHIP
LAY MOORED.  THE AREA GENERALLY WAS BLACKED OUT BUT PETITIONER'S
COMPANION, FORTY OR FIFTY FEET AWAY, SAW HIM FALL OVER A GUARD CHAIN
INTO A DRYDOCK WHICH WAS LIGHTED SUFFICIENTLY FOR NIGHT WORK THEN IN
PROGRESS.  FARRELL WAS GRIEVOUSLY INJURED. 

HE WAS TREATED WITHOUT EXPENSE TO HIMSELF IN VARIOUS GOVERNMENT
HOSPITALS UNTIL JUNE 30, 1944, WHEN HE WAS DISCHARGED AT NORFOLK,
VIRGINIA, AS COMPLETELY DISABLED.  HE IS TOTALLY AND PERMANENTLY BLIND
AND SUFFERS POSTTRAUMATIC CONVULSIONS WHICH PROBABLY WILL BECOME MORE
FREQUENT AND ARE WITHOUT POSSIBILITY OF FURTHER CURE.  FROM TIME TO
TIME HE WILL REQUIRE SOME MEDICAL CARE TO EASE ATTACKS OF HEADACHES AND
EPILEPTIC CONVULSIONS.  THE COURT BELOW CONCLUDED THAT THE DUTY OF A
SHIPOWNER TO FURNISH MAINTENANCE AND CURE DOES NOT EXTEND BEYOND THE
TIME WHEN THE MAXIMUM CURE POSSIBLE HAS BEEN EFFECTED.  PETITIONER
CONTENDS THAT HE IS ENTITLED TO MAINTENANCE AS LONG AS HE IS DISABLED,
WHICH IN THIS CASE IS FOR LIFE. 

ADMITTEDLY THERE IS NO AUTHORITY IN ANY STATUTE OR AMERICAN ADMIRALTY
DECISIONS FOR THE PROPOSITION THAT HE IS ENTITLED TO MAINTENANCE FOR
LIFE.  BUT AN ARGUMENT IS BASED UPON THE ANCIENT AUTHORITY OF CLEIRAC,
JUGMENS D'OLERON, ARTS. 6 AND 7 AND NOTES BY CLEIRAC; CONSOLATO DEL
MARE, CC. 182, 137; 2 PARD COLL.  MAR.  152; TO WHICH AMERICAN
AUTHORITIES HAVE PAID CONSIDERABLE RESPECT.  SEE STORY, CIRCUIT
JUSTICE, IN REED V. CANFIELD, FED. CAS. NO. 11,641, P. 429.  A
TRANSLATION OF THE NOTE RELIED UPON READS: 

"IF IN DEFENDING HIMSELF, OR FIGHTING AGAINST AN ENEMY OR CORSAIRS, A
MARINER IS MAIMED, OR DISABLED TO SERVE ON BOARD A SHIP FOR THE REST OF
HIS LIFE, BESIDES THE CHARGE OF HIS CURE, HE SHALL BE MAINTAINED AS
LONG AS HE LIVES AT THE COST OF THE SHIP AND CARGO.  VIDE THE HANSEATIC
LAW, ART. 35."  1 PETERS' ADMIRALTY DECISIONS (1807), APPENDIX, P. XV. 

ARTICLE 35 OF THE LAWS OF THE HANSE TOWNS REFERRED TO READS: 

"ART. XXXV.  THE SEAMEN ARE OBLIGED TO DEFEND THEIR SHIP AGAINST
ROVERS, ON PAIN OF LOSING THEIR WAGES; AND IF THEY ARE WOUNDED, THEY
SHALL BE HEALED AND CURED AT THE GENERAL CHARGE OF THE CONCERNED IN A
COMMON AVERAGE.  IF ANYONE OF THEM IS MAIMED AND DISABLED, HE SHALL BE
MAINTAINED AS LONG AS HE LIVES BY A LIKE AVERAGE."  IBID., P. CIV. 

WE NEED NOT ELABORATE UPON THE MEANINGS OR WEIGHT TO BE GIVEN TO
THESE MEDIEVAL PRONOUNCEMENTS OF MARITIME LAW.  AS THEY SHOW, THEY WERE
WRITTEN WHEN PIRATES WERE NOT OPERATIC CHARACTERS BUT WERE REAL-LIFE
PERILS OF THE SEA.  WHEN THEY BORE DOWN ON A SHIP, ALL WAS LOST UNLESS
THE SEAMAN WOULD HAZARD LIFE AND LIMB IN DESPERATE DEFENSE.  IF THEY
SAVED THE SHIP AND CARGO, IT WAS SOMETHING IN THE NATURE OF SALVAGE AND
FOR THEIR SACRIFICE IN THE EFFORT A CONTRIBUTION ON PRINCIPLES OF
AVERAGE MAY HAVE BEEN JUSTLY DUE.  PERHAPS MORE THAN HUMANITARIAN
CONSIDERATIONS, INDUCEMENT TO STAND BY THE SHIP GENERATED THE DOCTRINE
THAT SAVING THE SHIP AND HER CARGO FROM PIRATES ENTITLES THE SEAMAN TO
LIFELONG MAINTENANCE IF HE IS DISABLED IN THE STRUGGLE. 

BUT CONSTRUE THE OLD-TIME LAW WITH WHAT LIBERALITY WE WILL, IT CANNOT
BE MADE TO COVER THE FACTS OF THIS CASE.  THIS SHIP WAS NOT BESET BUT
WAS SNUG AT BERTH IN A HARBOR THAT HAD CAPITULATED TO THE UNITED STATES
AND HER ALLIED FORCES SIX MONTHS BEFORE.  NO SEA ROVERS, PIRATES OR
CORSAIRS APPEARED TO HAVE MENACED HER.  IT IS TRUE THAT THE SHIP WAS
ENGAGED IN WARLIKE OPERATIONS AND WAS A LEGITIMATE TARGET FOR ENEMY
AIRCRAFT OR NAVAL VESSELS, WHICH MADE HER SERVICE A WAR RISK, BUT AT
THAT TIME AND PLACE NO ENEMY ATTACK WAS IN PROGRESS OR IMMINENT.  EVEN
IF WE PASS ALL THIS AND ASSUME THE SHIP ALWAYS TO HAVE BEEN IN
POTENTIAL DANGER AND IN NEED OF DEFENSE, THIS SEAMAN AT THE TIME OF HIS
INJURY HAD TAKEN LEAVE OF HER AND HE IS IN NO POSITION TO CLAIM THAT HE
WAS A SACRIFICE TO HER SALVATION.  FAR FROM HELPING TO MAN THE SHIP AT
THE MOMENT, HE WAS UNABLE TO FIND HER; HE WAS LOST ASHORE AND NOT ABLE
ADEQUATELY TO TAKE CARE OF HIMSELF.  HOWEVER PATRIOTIC HIS MOTIVE IN
ENLISTING IN THE SERVICE AND HOWEVER READY HE MAY HAVE BEEN TO RISK
HIMSELF FOR HIS COUNTRY, WE CAN FIND NO RATIONAL BASIS FOR AWARDING
LIFETIME MAINTENANCE AGAINST THE SHIP ON THE THEORY THAT HE WAS WOUNDED
OR MAIMED WHILE DEFENDING HER AGAINST ENEMIES. 

IT IS CLAIMED, HOWEVER, EVEN IF THE BASIS FOR A LIFETIME AWARD DOES
NOT EXIST, THAT HE IS ENTITLED TO MAINTENANCE AND CURE BEYOND THE
PERIOD ALLOWED BY THE COURTS BELOW.  THIS IS BASED LARGELY UPON
STATEMENTS IN THE OPINION OF THE COURT IN CALMAR STEAMSHIP CORP. V.
TAYLOR, 303 U.S. 525.  THERE THE QUESTION AS STATED BY THE COURT WAS
WHETHER THE DUTY OF A SHIPOWNER TO PROVIDE MAINTENANCE AND CURE FOR A
SEAMAN FALLING ILL OF AN INCURABLE DISEASE WHILE IN ITS EMPLOY, EXTENDS
TO THE PAYMENT OF A LUMP-SUM AWARD SUFFICIENT TO DEFRAY THE COST OF
MAINTENANCE AND CURE FOR THE REMAINDER OF HIS LIFE.  THE COURT LAID
ASIDE CASES WHERE INCAPACITY IS CAUSED BY THE EMPLOYMENT AND SAID, "WE
CAN FIND NO BASIS FOR SAYING THAT, IF THE DISEASE PROVES TO BE
INCURABLE, THE DUTY EXTENDS BEYOND A FAIR TIME AFTER THE VOYAGE IN
WHICH TO EFFECT SUCH IMPROVEMENT IN THE SEAMAN'S CONDITION AS
REASONABLY MAY BE EXPECTED TO RESULT FROM NURSING, CARE, AND MEDICAL
TREATMENT.  THIS WOULD SATISFY SUCH DEMANDS OF POLICY AS UNDERLIE THE
IMPOSITION OF THE OBLIGATION.  BEYOND THIS WE THINK THERE IS NO DUTY,
AT LEAST WHERE THE ILLNESS IS NOT CAUSED BY THE SEAMAN'S SERVICE." 

IT IS CLAIMED THAT WHEN THE COURT RESERVED OR DISCLAIMED ANY JUDGMENT
AS TO CASES WHERE THE INCAPACITY IS CAUSED "BY THE EMPLOYMENT" OR "BY
THE SEAMAN'S SERVICE" IT RECOGNIZED OR CREATED SUCH CASES AS A SEPARATE
CLASS FOR A DIFFERENT MEASURE OF MAINTENANCE AND CURE.  WE THINK NO
SUCH DISTINCTION EXISTS OR WAS PREMISED IN THE CALMAR CASE.  IN AGUILAR
V. STANDARD OIL CO., 318 U.S. 724, THE COURT POINTED OUT THAT LOGICALLY
AND HISTORICALLY THE DUTY OF MAINTENANCE AND CURE DERIVES FROM A
SEAMAN'S DEPENDENCE ON HIS SHIP, NOT FROM HIS INDIVIDUAL DESERTS, AND
ARISES FROM HIS DISABILITY, NOT FROM ANYONE'S FAULT.  WE THERE REFUSED
TO LOOK TO THE PERSONAL NATURE OF THE SEAMAN'S ACTIVITY AT THE MOMENT
OF INJURY TO DETERMINE HIS RIGHT TO AWARD.  ASIDE FROM GROSS MISCONDUCT
OR INSUBORDINATION, WHAT THE SEAMAN IS DOING AND WHY AND HOW HE
SUSTAINS INJURY DOES NOT AFFECT HIS RIGHT TO MAINTENANCE AND CURE,
HOWEVER DECISIVE IT MAY BE AS TO CLAIMS FOR INDEMNITY OR FOR DAMAGES
FOR NEGLIGENCE.  HE MUST, OF COURSE, AT THE TIME BE "IN THE SERVICE OF
THE SHIP," BY WHICH IS MEANT THAT HE MUST BE GENERALLY ANSWERABLE TO
ITS CALL TO DUTY RATHER THAN ACTUALLY IN PERFORMANCE OF ROUTINE TASKS
OR SPECIFIC ORDERS. 

IT HAS BEEN THE MERIT OF THE SEAMAN'S RIGHT TO MAINTENANCE AND CURE
THAT IT IS SO INCLUSIVE AS TO BE RELATIVELY SIMPLE, AND CAN BE
UNDERSTOOD AND ADMINISTERED WITHOUT TECHNICAL CONSIDERATIONS.  IT HAS
FEW EXCEPTIONS OR CONDITIONS TO STIR CONTENTIONS, CAUSE DELAYS, AND
INVITE LITIGATIONS.  THE SEAMAN COULD FORFEIT THE RIGHT ONLY BY CONDUCT
WHOSE WRONGFUL QUALITY EVEN SIMPLE MEN OF THE CALLING WOULD RECOGNIZE -
INSUBORDINATION, DISOBEDIENCE TO ORDERS, AND GROSS MISCONDUCT.  ON THE
OTHER HAND, THE MASTER KNEW HE MUST MAINTAIN AND CARE FOR EVEN THE
ERRING AND CARELESS SEAMAN, MUCH AS A PARENT WOULD A CHILD.  FOR ANY
PURPOSE TO INTRODUCE A GRADUATION OF RIGHTS AND DUTIES BASED ON SOME
RELATIVE PROXIMITY OF THE ACTIVITY AT TIME OF INJURY TO THE
"EMPLOYMENT" OR THE "SERVICE OF THE SHIP," WOULD ALTER THE BASIS AND BE
OUT OF HARMONY WITH THE SPIRIT AND FUNCTION OF THE DOCTRINE AND WOULD
OPEN THE DOOR TO THE LITIGIOUSNESS WHICH HAS MADE THE LANDMAN'S REMEDY
SO OFTEN A PROMISE TO THE EAR TO BE BROKEN TO THE HOPE. 

NOR IS IT AT ALL CLEAR TO US WHAT THIS PARTICULAR LITIGANT COULD GAIN
FROM INTRODUCTION OF THE DISTINCTION FOR WHICH CONTENTION IS MADE.  IF
WE SHOULD CONCEDE THAT LARGER MEASURE OF MAINTENANCE IS DUE THOSE WHOSE
INJURY IS CAUSED BY THE NATURE OF THEIR EMPLOYMENT, IT WOULD SEEM
FARFETCHED TO HOLD IT APPLICABLE HERE.  CLAIMANT WAS DISOBEDIENT TO HIS
ORDERS AND FOR HIS PERSONAL PURPOSES OVERSTAYED HIS SHORE LEAVE.  HIS
FALL INTO A DRYDOCK THAT WAS SUFFICIENTLY LIGHTED FOR WORKMEN TO BE
CARRUING ON REPAIRS TO A SHIP THEREIN WAS DUE TO NO NEGLIGENCE BUT HIS
OWN.  THESE MATTERS HAVE NOT BEEN INVOKED TO FORFEIT OR REDUCE HIS
USUAL SEAMAN'S RIGHT, BUT IT IS DIFFICULT TO SEE HOW SUCH CIRCUMSTANCES
WOULD WARRANT ENLARGEMENT OF IT.  WE HOLD THAT HE IS ENTITLED TO THE
USUAL MEASURE OF MAINTENANCE AND CURE AT THE SHIP'S EXPENSE, NO LESS
AND NO MORE, AND TURN TO ASCERTAINMENT OF ITS BOUNDS. 

THE LAW OF THE SEA IS IN A PECULIAR SENSE AN INTERNATIONAL LAW, BUT
APPLICATION OF ITS SPECIFIC RULES DEPENDS UPON ACCEPTANCE BY THE UNITED
STATES.  THE PROBLEM OF THE SICK OR INJURED SEAMAN HAS CONCERNED EVERY
MARITIME COUNTRY AND, IN 1936, THE GENERAL CONFERENCE OF THE
INTERNATIONAL LABOR ORGANIZATION AT GENEVA SUBMITTED A DRAFT CONVENTION
TO THE UNITED STATES AND OTHER STATES.  IT WAS RATIFIED BY THE SENATE
AND WAS PROCLAIMED BY THE PRESIDENT AS EFFECTIVE FOR THE UNITED STATES
ON OCTOBER 29, 1939.  54 STAT. 1693.  ARTICLE 4, PARAGRAPH 1, THEREOF,
PROVIDES:  "THE SHIPOWNER SHALL BE LIABLE TO DEFRAY THE EXPENSE OF
MEDICAL CARE AND MAINTENANCE UNTIL THE SICK OR INJURED PERSON HAS BEEN
CURED, OR UNTIL THE SICKNESS OR INCAPACITY HAS BEEN DECLARED OF A
PERMANENT CHARACTER." 

WHILE ENACTMENT OF THIS GENERAL RULE BY CONGRESS WOULD SEEM
CONTROLLING, IT IS NOT AMISS TO POINT OUT THAT THE LIMITATION THUS
IMPOSED WAS IN ACCORDANCE WITH THE UNDERSTANDING OF THOSE FAMILIAR WITH
THE LAWS OF THE SEA AND SYMPATHETIC WITH THE SEAMAN'S PROBLEMS. 

THE DEPARTMENT OF LABOR ISSUED A SUMMARY OF THE CONVENTION CONTAINING
THE FOLLOWING ON THIS SUBJECT:  "THE SHIPOWNER IS REQUIRED TO FURNISH
MEDICAL CARE AND MAINTENANCE, INCLUDING BOARD AND LODGING, UNTIL THE
DISABLED PERSON HAS BEEN CURED OR THE DISABILITY HAS BEEN DECLARED
PERMANENT."  ROBINSON, ADMIRALTY, P. 300. 

REPRESENTATIVES OF THE ORGANIZED SEAMEN HAVE RECOGNIZED AND ADVISED
CONGRESS OF THIS TRADITIONAL LIMITATION ON MAINTENANCE AND CURE.  WHEN
CONGRESS HAS HAD UNDER CONSIDERATION SUBSTITUTION OF A SYSTEM OF
WORKMEN'S COMPENSATION ON THE PRINCIPLES OF THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT, 44 STAT. 1424, AS AMENDED, 33 U.S.C.
SECS. 901-950, ORGANIZED SEAMEN, AS WE HAVE HERETOFORE NOTED, HAVE
STEADFASTLY OPPOSED THE CHANGE.  HUST V. MOORE-MCCORMACK LINES, 328
U.S. 707, 715.  IN DOING SO THE LEGAL REPRESENTATIVE OF ONE MARITIME
UNION ADVISED THE COMMITTEE ON MERCHANT MARINE OF THE HOUSE OF
REPRESENTATIVES THAT MAINTENANCE EXTENDED DURING "(A) THE PERIOD THAT A
SEAMAN RECEIVES TREATMENT AT A HOSPITAL EITHER AS AN IN-PATIENT OR AN
OUT-PATIENT; AND (B) DURING A PERIOD OF CONVALESCENCE, AND UNTIL THE
MAXIMUM CURE IS OBTAINED."  FN1  ANOTHER REPRESENTATIVE, AFTER DEFINING
IT TO INCLUDE HOSPITALIZATION, SAID, "IN ADDITION A SEAMAN IS ENTITLED
TO RECOVER MAINTENANCE WHILE OUTSIDE OF THE HOSPITAL UNTIL HIS PHYSICAL
CONDITION BECOMES FIXED."  FN2 

THAT THE DUTY OF THE SHIP TO MAINTAIN AND CARE FOR THE SEAMAN AFTER
THE END OF THE VOYAGE ONLY UNTIL HE WAS SO FAR CURED AS POSSIBLE, SEEMS
TO HAVE BEEN THE DOCTRINE OF THE AMERICAN ADMIRALTY COURTS PRIOR TO THE
ADOPTION OF THE CONVENTION BY CONGRESS,  FN3  DESPITE OCCASIONAL
AMBIGUITY OF LANGUAGE OR RESERVATION AS TO POSSIBLE SITUATIONS NOT
BEFORE THE COURT.  IT HAS BEEN THE RULE OF ADMIRALTY COURTS SINCE THE
CONVENTION.  FN4 

MAINTENANCE AND CURE IS NOT THE ONLY RECOURSE OF THE INJURED SEAMAN. 
IN AN APPROPRIATE CASE HE MAY OBTAIN INDEMNITY OR COMPENSATION FOR
INJURY DUE TO NEGLIGENCE OR UNSEAWORTHINESS AND MAY RECOVER, BY TRIAL
BEFORE COURT AND JURY, DAMAGES FOR PARTIAL OR TOTAL DISABILITY.  BUT
MAINTENANCE AND CURE IS MORE CERTAIN IF MORE LIMITED IN ITS BENEFITS. 
IT DOES NOT HOLD A SHIP TO PERMANENT LIABILITY FOR A PENSION, NEITHER
DOES IT GIVE A LUMP-SUM PAYMENT TO OFFSET DISABILITY BASED ON SOME
CONCEPTION OF EXPECTANCY OF LIFE.  INDEED THE CUSTOM OF PROVIDING
MAINTENANCE AND CURE IN KIND AND CONCURRENTLY WITH ITS NEED HAS HAD THE
ADVANTAGE OF REMOVING ITS BENEFITS FROM DANGER OF BEING WASTED BY THE
PROVERBIAL IMPROVIDENCE OF ITS BENEFICIARIES.  THE GOVERNMENT DOES NOT
CONTEND THAT IF FARRELL RECEIVES FUTURE TREATMENT OF A CURATIVE NATURE
HE MAY NOT RECOVER IN A NEW PROCEEDING THE AMOUNT EXPENDED FOR SUCH
TREATMENT AND FOR MAINTENANCE WHILE RECEIVING IT.    THE NEED OF THIS
SEAMAN FOR PERMANENT HELP IS GREAT AND HIS PLIGHT MOST UNFORTUNATE. 
BUT AS THE EVIDENCE HAS AFFORDED NO BASIS FOR SUPPLYING THAT NEED BY
FINDING NEGLIGENCE, NEITHER DOES THE CASE AFFORD A BASIS FOR DISTORTION
OF THE DOCTRINE OF MAINTENANCE AND CURE.  THIS SEAMAN WAS IN THE
SERVICE OF THE UNITED STATES AND EXTRAORDINARY MEASURES OF RELIEF WHILE
NOT IMPOSSIBLE ARE NOT PROPERLY ADDRESSED TO THE COURTS. 

  II.  WAGES. 

THE TWO COURTS BELOW HAVE HELD THE PETITIONER ENTITLED TO WAGES UNTIL
THE COMPLETION OF THE VOYAGE AT THE PORT OF NEW YORK ON MARCH 28,
1944.  THE PETITIONER CONTENDS THAT HE HAS A RIGHT TO WAGES FOR TWELVE
MONTHS FROM DECEMBER 16, 1943, THE DATE HE JOINED THE VESSEL.  THE
ARTICLES OF THE HAVILAND, SIGNED BY PETITIONER, WERE ON A PRINTED FORM
WHICH LEFT A VACANT SPACE SUBJECT TO THE FOLLOWING FOOTNOTE:  "HERE THE
VOYAGE IS TO BE DESCRIBED, AND THE PLACES NAMED AT WHICH THE SHIP IS TO
TOUCH; OR, IF THAT CANNOT BE DONE, THE GENERAL NATURE AND PROBABLE
LENGTH OF THE VOYAGE IS TO BE STATED, AND THE PORT OR COUNTRY AT WHICH
THE VOYAGE IS TO TERMINATE."  THE HAVILAND'S ARTICLES, FOR SECURITY
REASONS DURING THE WAR, DID NOT DESCRIBE THE VOYAGE IN SUCH TERMS BUT
PROVIDED, "FROM THE PORT OF PHILADELPHIA, TO A POINT IN THE ATLANTIC
OCEAN TO THE EASTWARD OF PHILA.  AND THENCE TO SUCH PORTS AND PLACES IN
ANY PART OF THE WORLD AS THE MASTER MAY DIRECT OR AS MAY BE ORDERED OR
DIRECTED BY THE UNITED STATES GOVERNMENT OR ANY DEPARTMENT, COMMISSION
OR AGENCY THEREOF  ...  AND BACK TO A FINAL PORT OF DISCHARGE IN THE
UNITED STATES, FOR A TERM OF TIME NOT EXCEEDING 12(TWELVE) CALENDAR
MONTHS."  IT IS NOT QUESTIONED THAT THE GENERAL CUSTOM IN SHIPS, OTHER
THAN THE COASTWISE TRADE, IS TO SIGN ON FOR A VOYAGE RATHER THAN FOR A
FIXED PERIOD.  BUT IT IS CONTENDED THAT THE LAST CLAUSE OF THIS
CONTRACT OBLIGATED THE PETITIONER TO SERVE FOR TWELVE CALENDAR MONTHS,
IRRESPECTIVE OF THE TERMINATION OF THE VOYAGE, AND THEREFORE GAVE HIM
THE RIGHT TO WAGES FOR A SIMILAR PERIOD.  THE CONTRACT IS NOT AN
UNCOMMON FORM AND COMPLIED WITH WAR-TIME REQUIREMENTS AS TO VOYAGE
CONTRACTS.  FN5  WE THINK, IN THE LIGHT OF THE CUSTOM OF THE INDUSTRY
AND THE CONDITION OF THE TIMES, THERE IS NOTHING AMBIGUOUS ABOUT IT AND
THAT IT OBLIGATED THE PETITIONER ONLY FOR THE VOYAGE ON WHICH THE SHIP
WAS ENGAGED WHEN HE SIGNED ON AND THAT, WHEN IT TERMINATED AT A PORT OF
DISCHARGE IN THE UNITED STATES, HE COULD NOT HAVE BEEN REQUIRED TO
REIMBARK FOR A SECOND VOYAGE.  THE TWELVE-MONTH PERIOD APPEARS AS A
LIMITATION UPON THE DURATION OF THE VOYAGE AND NOT AS A STATED PERIOD
OF EMPLOYMENT.  WE THINK THE COURT BELOW MADE NO ERROR IN DETERMINING
THE WAGES. 

FOR THE REASONS SET FORTH, THE JUDGMENT IS AFFIRMED. 

FN1  HEARINGS BEFORE THE HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES, 76TH CONG., 1ST SESS., ON H.R. 6726 AND H.R. 6881, P. 83. 

FN2  ID., P. 131. 

FN3  SEE, FOR EXAMPLE, THE WENSLEYDALE, 41 F. 829; THE BOUKER NO. 2,
241 F. 831; SKOLAR V. LEHIGH VALLEY R. CO., 60 F.2D 893; THE POINT
FERMIN, 70 F.2D 602. 

FN4  SEE, FOR EXAMPLE, LINDGREN V. SHEPARD S.S. CO., 108 F.2D 806;
THE JOSEPHINE & MARY, 120 F.2D 459; LUKSICH V. MISETICH, 140 F.2D 812. 

FN5  7 FED. REG. 2477. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE MURPHY
AND MR. JUSTICE RUTLEDGE CONCUR, DISSENTING. 

I. WAGES.  - THE ARTICLES BOUND FARRELL TO A VOYAGE ON THE VESSEL
WHICH WAS EN ROUTE TO "A POINT IN THE ATLANTIC OCEAN TO THE EASTWARD OF
PHILA.  AND THENCE TO SUCH PORTS AND PLACES IN ANY PART OF THE WORLD AS
THE MASTER MAY DIRECT OR AS MAY BE ORDERED OR DIRECTED BY THE UNITED
STATES GOVERNMENT OR ANY DEPARTMENT, COMMISSION OR AGENCY THEREOF  ...
AND BACK TO A FINAL PORT OF DISCHARGE IN THE UNITED STATES, FOR A TERM
OF TIME NOT EXCEEDING 12(TWELVE) CALENDAR MONTHS."  IF THIS WERE A
COASTWISE VOYAGE, THERE WOULD BE LITTLE QUESTION THAT FARRELL COULD
RECOVER HIS WAGES FOR THE ENTIRE TWELVE-MONTH PERIOD.  SEE ENOCHASSON
V. FREEPORT SULPHUR CO., 7 F.2D 675; JONES V. WATERMAN S.S. CORP., 155
F.2D 992, 996.  I AGREE WITH JUDGE KIRKPATRICK THAT THE PRINCIPLE OF
THOSE CASES IS LIKEWISE APPLICABLE TO FOREIGN VOYAGES.  SHIELDS V.
UNITED STATES, 73 F.SUPP.  862, 866.  ANY DIFFERENCE IS NOT APPARENT. 
IN EACH THE SEAMAN BINDS HIMSELF FOR THE PERIOD.  THE OBLIGATIONS TO
PAY WAGES SHOULD BE COTERMINOUS WITH THAT RESPONSIBILITY.  ENOCHASSON
V. FREEPORT SULPHUR CO., SUPRA.  THE NUMBER OF VOYAGES MADE IS
THEREFORE IMMATERIAL.  IT IS THE EXTENT OF THE VOYAGE THAT COULD BE
DEMANDED THAT IS CONTROLLING. 

II.  MAINTENANCE AND CURE.  - CALMAR S.S. CORP. V. TAYLOR, 303 U.S.
525, INVOLVED MAINTENANCE AND CURE  FN1  FOR AN INCURABLE DISEASE WHICH
MANIFESTED ITSELF DURING THE SEAMAN'S EMPLOYMENT BUT WAS NOT CAUSED BY
IT.  THE COURT HELD THAT THE SHIPOWNER'S LIABILITY ENDED WHEN THE
SEAMAN WAS CURED AS FAR AS POSSIBLE, RESERVING THE QUESTION WHETHER A
DIFFERENT RULE WOULD APPLY IF THE INCAPACITY AROSE FROM THE
EMPLOYMENT.  P. 530.  THE QUESTION RESERVED IS NOW PRESENTED, FOR AN
INJURY RECEIVED ON RETURNING TO A SHIP FROM SHORE LEAVE IS PLAINLY
INCURRED IN THE SERVICE.  AGUILAR V. STANDARD OIL CO., 318 U.S. 724;
REED V. CANFIELD, FED. CAS. NO. 11,641.  JUSTICE STORY WAS OF THE VIEW
THAT THE SHIP REMAINED LIABLE UNTIL THE CURE WAS COMPLETED.  REED V.
CANFIELD, SUPRA. THAT WAS IN 1832.  INTERVENING DECISIONS IN THE LOWER
COURTS QUALIFIED THAT VIEW.  IT WAS HELD THAT THE RIGHT TO MAINTENANCE
AND CURE EXTENDED TO A REASONABLE TIME BEYOND THE END OF THE VOYAGE. 
FN2  THE PROBLEM OF WHAT WAS A REASONABLE TIME REMAINED.  THE TEST
ADOPTED BY THE COURT IS THAT IT EXTENDS THROUGH THE PERIOD WHEN THE
MAXIMUM CURE WITHIN THE REACH OF MEDICAL SCIENCE HAS BEEN ACHIEVED. 

BUT THAT TEST IS NOT SUFFICIENTLY DISCRIMINATING. 

EVEN THOUGH A MAXIMUM CURE HAS BEEN EFFECTED, TWO ENTIRELY DIFFERENT
STATES OF BEING MAY RESULT WHEN THE INJURED MAN IS LEFT TOTALLY
DISABLED. 

(1)  HE MAY BE TOTALLY DISABLED BUT NO LONGER IN NEED OF MEDICAL AID
TO CARE FOR THE CONDITION CREATED BY THE INJURY NOR WITHOUT MEANS OF
PROVIDING MAINTENANCE.  THAT IS NOT THE PRESENT CASE, AT LEAST SO FAR
AS MEDICAL CARE IS CONCERNED.  AND WE NEED NOT DETERMINE WHAT RIGHTS TO
MAINTENANCE AND CURE ONE SO SITUATED HAS. 

(2)  ONE INJURED IN THE SERVICE OF A SHIP MAY NOT ONLY BE PERMANENTLY
DISABLED AFTER REACHING THE POINT OF MAXIMUM CURE.  HE MAY ALSO BE IN
NEED OF FUTURE MEDICAL AID TO SUSTAIN THAT CONDITION AND BE WITHOUT
MEANS OF MAINTENANCE.  THESE NEEDS MAY EXTEND TO END OF LIFE.  THAT IS
THE PRESENT CASE, AT LEAST SO FAR AS MEDICAL CARE IS CONCERNED.  FN3
IN THIS SITUATION PAYMENTS TO GIVE CONTINUING NEEDED CARE OF WOUNDS
HAVE BEEN ALLOWED, EVEN THOUGH A MAXIMUM CURE HAS BEEN EFFECTED.  THE
JOSEPHINE & MARY, 120 F.2D 459, 462, 464.  CF. SAUNDERS V. LUCKENBACH
CO., 262 F. 845, 847. 

IN THE PRESENT CASE AN AWARD FOR MAINTENANCE AND CURE TO COVER A SIX
MONTH PERIOD AFTER DISCHARGE FROM THE HOSPITAL WAS ALLOWED. 
NEVERTHELESS EVEN THOUGH FARRELL'S EXPENSES OF CARE MAY BE CONTINUING,
THE DISTRICT COURT JUDGE REFUSED ANY FURTHER AWARD.  I DO NOT BELIEVE
THAT THESE FUTURE EXPENSES SHOULD BE ANY LESS A CHARGE ON THE SHIP THAN
PAST EXPENSES.  TO CONCLUDE AS THE COURT NOW DOES THAT THEY ARE NOT IS
TO IGNORE IN PART THE SALUTARY POLICY SUPPORTING THE DOCTRINE OF
MAINTENANCE AND CURE. 

MAINTENANCE AND CURE IS AN ANCIENT DOCTRINE.  IT REFLECTS IN PART THE
CONCERN WHICH THE STATE HAS HAD FROM AN EARLY DATE IN A POOR AND
IMPROVIDENT CLASS OF WORKERS.  SEE MR. JUSTICE STORY IN HARDEN V.
GORDON, FED. CAS. NO. 6,047.  IT ALSO RECOGNIZES THE IMPERATIVE
NECESSITY OF THE NATION TO MAINTAIN IN PEACE AND WAR A MERCHANT
MARINE.  IF MEN ARE TO GO DOWN TO THE SEA IN SHIPS AND FACE THE PERILS
OF THE OCEAN, THOSE WHO EMPLOY THEM MUST BE SOLICITOUS OF THEIR
WELFARE.  MAINTENANCE AND CURE IS AN INDUCEMENT ON THE PART OF MASTERS
AND OWNERS TO BE SOLICITOUS OF THE HEALTH, SAFETY, AND WELFARE OF
SEAMEN WHILE THEY ARE IN THE SERVICE.  IT GIVES A DEGREE OF SECURITY,
THOUGH INJURY OR SICKNESS BE INCURRED.  IT GIVES SERVICE IN THE
MERCHANT MARINE A DIGNITY EQUAL TO THE IMPORTANT FUNCTION IT PERFORMS. 
IT REFLECTS "THE GREAT PUBLIC POLICY OF PRESERVING THIS IMPORTANT CLASS
OF CITIZENS FOR THE COMMERCIAL SERVICE AND MARITIME DEFENCE OF THE
NATION."  ID. AT P. 483. 

ACCORDINGLY, THE INJURIES OF SEAMEN ARISING OUT OF THE SERVICE WERE
MADE A CHARGE AGAINST THE ENTERPRISE TO THE EXTENT AT LEAST OF
MAINTENANCE AND CURE.  THEIR MAINTENANCE AND CURE WAS INDEED PART OF
THE COST OF THE BUSINESS.  IT IS NONETHELESS A LEGITIMATE COST THOUGH
THE EXPENSE CONTINUES BEYOND THE TIME WHEN A MAXIMUM CURE HAS BEEN
EFFECTED.  FN4 

FN1  MAINTENANCE INCLUDES FOOD AND LODGING; AND CURE MEANS CARE.  THE
BOUKER NO. 2, 241 F. 831, 835. 

FN2  THE BOUKER NO. 2, SUPRA; THE MARS, 149 F. 729; THE EASTERN DAWN,
25 F.2D 322; THE TROY, 121 F. 901; GEISTLINGER V. INTERNATIONAL
MERCANTILE MARINE CO., 295 F. 176. 

FN3  THE DISTRICT COURT SAID:  "HE WILL CONTINUE TO HAVE THESE SPELLS
AND TO HAVE PAIN IN THE AREA OF THE FRACTURE.  HE WILL NEED TREATMENT
AND MEDICAL CARE FROM TIME TO TIME AND PROBABLY SOME CARE FOR THE REST
OF HIS LIFE.  HE WAS ALWAYS A HEALTHY INDIVIDUAL BEFORE HIS ACCIDENT
AND NEVER SHOWED ANY SIGNS OF EPILEPSY BEFORE THEN.  THE MEDICAL
TESTIMONY ALSO SHOWS THAT HIS CONDITION OF BLINDNESS IS PERMANENT, THAT
IN ALL LIKELIHOOD HIS CONVULSIVE ATTACKS WILL CONTINUE, AND POSSIBLY
BECOME MORE FREQUENT, AND WITHOUT ANY POSSIBILITY OF A FURTHER CURE. 
THE ATTACKS AND HEADACHES MENTIONED WILL REQUIRE SOME CARE FROM TIME TO
TIME WHENEVER THEY PERSIST." 

FN4  THE SHIPOWNERS' LIABILITY CONVENTION OF 1936, 54 STAT. 1693,
DOES NOT REQUIRE A CONTRARY RESULT.  ARTICLE 4, PARAGRAPH 1, PROVIDES: 

"THE SHIPOWNER SHALL BE LIABLE TO DEFRAY THE EXPENSE OF MEDICAL CARE
AND MAINTENANCE UNTIL THE SICK OR INJURED PERSON HAS BEEN CURED, OR
UNTIL THE SICKNESS OR INCAPACITY HAS BEEN DECLARED OF A PERMANENT
CHARACTER." 

BUT ART. 12 CONTAINS A POWER TO DEPART FROM THAT STANDARD IN THIS
TYPE OF CASE.  IT PROVIDES: 

"NOTHING IN THIS CONVENTION SHALL AFFECT ANY LAW, AWARD, CUSTOM OR
AGREEMENT BETWEEN SHIPOWNERS AND SEAMEN WHICH ENSURES MORE FAVOURABLE
CONDITIONS THAN THOSE PROVIDED BY THIS CONVENTION." 
..END :







HOOD & SONS V. DU MOND, 336 U.S. 525 


NO. 92.  ARGUED DECEMBER 13-14, 1948.  - DECIDED APRIL 4, 1949.  - 297
N.Y. 209, 78 N.E.2D 476, REVERSED. 


PETITIONER, A DISTRIBUTOR OF MILK IN MASSACHUSETTS OPERATING THREE
RECEIVING PLANTS LICENSED UNDER THE AGRICULTURE & MARKETS LAW OF NEW
YORK, APPLIED TO THE NEW YORK COMMISSIONER FOR A LICENSE FOR AN
ADDITIONAL PLANT.  THE APPLICATION WAS DENIED ON THE GROUNDS THAT THE
PROPOSED EXPANSION OF PETITIONER'S FACILITIES WOULD REDUCE THE SUPPLY
OF MILK FOR LOCAL MARKETS AND WOULD RESULT IN DESTRUCTIVE COMPETITION
IN A MARKET ALREADY ADEQUATELY SERVED.  HELD:  THE NEW YORK LAW, SO
APPLIED, VIOLATES THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP.
526-545. 

1.  A STATE MAY NOT PROMOTE ITS OWN LOCAL ECONOMIC ADVANTAGES BY
CURTAILING THE VOLUME OF INTERSTATE COMMERCE.  PP. 530-539. 

2.  THE FACT THAT PETITIONER IS LICENSED TO OPERATE ITS EXISTING
PLANTS WITHOUT CONDITION OR LIMITATION AS TO THE QUANTITIES OF MILK IT
MAY PURCHASE, DOES NOT JUSTIFY DENIAL OF THE LICENSE FOR AN ADDITIONAL
PLANT.  PP. 539-540. 

3.  THE STATE'S DENIAL OF THE LICENSE ON THE GROUNDS ASSIGNED IS NOT
CONSISTENT WITH NOR AUTHORIZED BY THE FEDERAL AGRICULTURAL MARKETING
AGREEMENT ACT.  PP. 540-545. 

H. P. HOOD & SONS, INC. V. DU MOND, COMMISSIONER OF AGRICULTURE AND
MARKETS. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK, ALBANY COUNTY. 

PETITIONER'S APPLICATION FOR AN EXTENSION OF ITS LICENSE UNDER THE
NEW YORK AGRICULTURE & MARKETS LAW WAS DENIED BY THE STATE
COMMISSIONER, WHOSE ACTION WAS AFFIRMED BY THE NEW YORK COURT OF
APPEALS OVER OBJECTIONS TO ITS VALIDITY UNDER THE COMMERCE CLAUSE OF
THE FEDERAL CONSTITUTION.  297 N.Y. 209, 78 N.E.2D 476.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 808.  REVERSED, P. 545. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE POWER OF THE STATE OF NEW YORK TO DENY
ADDITIONAL FACILITIES TO ACQUIRE AND SHIP MILK IN INTERSTATE COMMERCE
WHERE THE GROUNDS OF DENIAL ARE THAT SUCH LIMITATION UPON INTERSTATE
BUSINESS WILL PROTECT AND ADVANCE LOCAL ECONOMIC INTERESTS. 

H.P. HOOD & SONS, INC., A MASSACHUSETTS CORPORATION, HAS LONG
DISTRIBUTED MILK AND ITS PRODUCTS TO INHABITANTS OF BOSTON.  THAT CITY
OBTAINS ABOUT 90% OF ITS FLUID MILK FROM STATES OTHER THAN
MASSACHUSETTS.  DAIRIES LOCATED IN NEW YORK STATE SINCE ABOUT 1900 HAVE
BEEN AMONG THE SOURCES OF BOSTON'S SUPPLY, THEIR CONTRIBUTION HAVING
VARIED BUT DURING THE LAST TEN YEARS APPROXIMATING 8%. THE AREA IN
WHICH HOOD HAS BEEN DENIED AN ADDITIONAL LICENSE TO MAKE INTERSTATE
PURCHASES HAS BEEN DEVELOPED AS A PART OF THE BOSTON MILKSHED FROM
WHICH BOTH THE HOOD COMPANY AND A COMPETITOR HAVE SHIPPED TO BOSTON. 

THE STATE COURTS HAVE HELD AND IT IS CONCEDED HERE THAT HOOD'S ENTIRE
BUSINESS IN NEW YORK, PRESENT AND PROPOSED, IS INTERSTATE COMMERCE. 
THIS HOOD HAS CONDUCTED FOR SOME TIME BY MEANS OF THREE RECEIVING
DEPOTS, WHERE IT TAKES RAW MILK FROM FARMERS.  THE MILK IS NOT
PROCESSED IN NEW YORK BUT IS WEIGHED, TESTED AND, IF NECESSARY, COOLED
AND ON THE SAME DAY SHIPPED AS FLUID MILK TO BOSTON.  THESE EXISTING
PLANTS HAVE BEEN OPERATED UNDER LICENSE FROM THE STATE AND ARE NOT IN
QUESTION HERE AS THE STATE HAS LICENSED HOOD TO CONTINUE THEM.  THE
CONTROVERSY CONCERNS A PROPOSED ADDITIONAL PLANT FOR THE SAME KIND OF
OPERATION AT GREENWICH, NEW YORK.  FN1 

ARTICLE 21 OF THE AGRICULTURE AND MARKETS LAW OF NEW YORK  FN2
FORBIDS A DEALER TO BUY MILK FROM PRODUCERS UNLESS LICENSED TO DO SO BY
THE COMMISSIONER OF AGRICULTURE AND MARKETS.  FOR THE LICENSE HE MUST
PAY A SUBSTANTIAL FEE AND FURNISH A BOND TO ASSURE PROMPT PAYMENT TO
PRODUCERS FOR MILK.  UNDER SEC. 258, THE COMMISSIONER MAY NOT GRANT A
LICENSE UNLESS SATISFIED "THAT THE APPLICANT IS QUALIFIED BY CHARACTER,
EXPERIENCE, FINANCIAL RESPONSIBILITY AND EQUIPMENT TO PROPERLY CONDUCT
THE PROPOSED BUSINESS."  FN3  THE HOOD COMPANY CONCEDEDLY HAS MET ALL
THE FOREGOING TESTS AND LICENSE FOR AN ADDITIONAL PLANT WAS NOT DENIED
FOR ANY FAILURE TO COMPLY WITH THESE REQUIREMENTS. 

THE COMMISSIONER'S DENIAL WAS BASED ON FURTHER PROVISIONS OF THIS
LICENSE WILL NOT TEND TO A DESTRUCTIVE COMPETITION IN A MARKET ALREADY
ADEQUATELY SERVED, AND THAT THE ISSUANCE OF THE LICENSE IS IN THE
PUBLIC INTEREST." 

UPON THE HEARING PURSUANT TO THE STATUTE, MILK DEALERS COMPETING WITH
HOOD AS BUYERS IN THE AREA OPPOSED LICENSING THE PROPOSED GREENWICH
PLANT.  THEY COMPLAINED THAT HOOD, BY REASON OF CONDITIONS UNDER WHICH
IT SOLD IN BOSTON, HAD COMPETITIVE ADVANTAGES UNDER APPLICABLE FEDERAL
MILK ORDERS, BOSTON HEALTH REGULATIONS, AND OPA CEILING PRICES.  THERE
WAS ALSO EVIDENCE OF A TEMPORARY SHORTAGE OF SUPPLY IN THE TROY, NEW
YORK MARKET DURING THE FALL AND WINTER OF 1945-46.  THE COMMISSIONER
WAS URGED NOT TO ALLOW HOOD TO COMPETE FOR ADDITIONAL SUPPLIES OF MILK
OR TO TAKE ON PRODUCERS THEN DELIVERING TO OTHER DEALERS. 

THE COMMISSIONER FOUND THAT HOOD, IF LICENSED AT GREENWICH, WOULD
PERMIT ITS PRESENT SUPPLIERS, AT THEIR OPTION, TO DELIVER AT THE NEW
PLANT RATHER THAN THE OLD ONES AND FOR A SUBSTANTIAL NUMBER THIS WOULD
MEAN SHORTER HAULS AND SAVINGS IN DELIVERY COSTS.  THE NEW PLANT ALSO
WOULD ATTRACT TWENTY TO THIRTY PRODUCERS, SOME OF WHOSE MILK HOOD
ANTICIPATES WILL OR MAY BE DIVERTED FROM OTHER BUYERS.  OTHER LARGE
MILK DISTRIBUTORS HAVE PLANTS WITHIN THE GENERAL AREA AND DEALERS
SERVING TROY OBTAIN MILK IN THE LOCALITY.  HE FOUND THAT TROY WAS
INADEQUATELY SUPPLIED DURING THE PRECEDING SHORT SEASON. 

IN DENYING THE APPLICATION FOR EXPANDED FACILITIES, THE COMMISSIONER
STATES HIS GROUNDS AS FOLLOWS: 

"IF APPLICANT IS PERMITTED TO EQUIP AND OPERATE ANOTHER MILK PLANT IN
THIS TERRITORY, AND TO TAKE ON PRODUCERS NOW DELIVERING TO PLANTS OTHER
THAN THOSE WHICH IT OPERATES, IT WILL TEND TO REDUCE THE VOLUME OF MILK
RECEIVED AT THE PLANTS WHICH LOSE THOSE PRODUCERS, AND WILL TEND TO
INCREASE THE COST OF HANDLING MILK IN THOSE PLANTS. 

"IF APPLICANT TAKES PRODUCERS NOW DELIVERING MILK TO LOCAL MARKETS
SUCH AS TROY, IT WILL HAVE A TENDENCY TO DEPRIVE SUCH MARKETS OF A
SUPPLY NEEDED DURING THE SHORT SEASON. 

"THERE IS NO EVIDENCE THAT ANY PRODUCER IS WITHOUT A MARKET FOR HIS
MILK.  THERE IS NO EVIDENCE THAT ANY PRODUCERS NOT NOW DELIVERING MILK
TO APPLICANT WOULD RECEIVE ANY HIGHER PRICE, WERE THEY TO DELIVER THEIR
MILK TO APPLICANT'S PROPOSED PLANT. 

"THE ISSUANCE OF A LICENSE TO APPLICANT WHICH WOULD PERMIT IT TO
OPERATE AN ADDITIONAL PLANT, WOULD TEND TO A DESTRUCTIVE COMPETITION IN
A MARKET ALREADY ADEQUATELY SERVED, AND WOULD NOT BE IN THE PUBLIC
INTEREST."  FN4 

DENIAL OF THE LICENSE WAS SUSTAINED BY THE COURT OF APPEALS  FN5
OVER CONSTITUTIONAL OBJECTIONS DULY URGED UNDER THE COMMERCE CLAUSE
FN6  AND, BECAUSE OF THE IMPORTANCE OF THE QUESTIONS INVOLVED, WE
BROUGHT THE CASE HERE BY CERTIORARI.  FN7 

PRODUCTION AND DISTRIBUTION OF MILK ARE SO INTIMATELY RELATED TO
PUBLIC HEALTH AND WELFARE THAT THE NEED FOR REGULATION TO PROTECT THOSE
INTERESTS HAS LONG BEEN RECOGNIZED AND IS, FROM A CONSTITUTIONAL
STANDPOINT, HARDLY CONTROVERSIAL.  ALSO, THE ECONOMY OF THE INDUSTRY IS
SO ECCENTRIC THAT ECONOMIC CONTROLS HAVE BEEN FOUND AT ONCE NECESSARY
AND DIFFICULT.  THESE HAVE EVOLVED DETAILED, INTRICATE AND
COMPREHENSIVE REGULATIONS, INCLUDING PRICEFIXING.  THEY HAVE BEEN MUCH
LITIGATED BUT WERE GENERALLY SUSTAINED BY THIS COURT AS WITHIN THE
POWERS OF THE STATE OVER ITS INTERNAL COMMERCE AS AGAINST THE CLAIM
THAT THEY VIOLATED THE FOURTEENTH AMENDMENT.  FN8 NEBBIA V. NEW YORK,
291 U.S. 502; HEGEMAN FARMS CORP. V. BALDWIN, 293 U.S. 163; BORDEN'S
CO. V. TEN EYCK, 297 U.S. 251.  BUT SEE MAYFLOWER FARMS V. TEN EYCK,
297 U.S. 266.  AS THE STATES EXTENDED THEIR EFFORTS TO CONTROL VARIOUS
PHASES OF EXPORT AND IMPORT ALSO, QUESTIONS WERE RAISED AS TO
LIMITATIONS ON STATE POWER UNDER THE COMMERCE CLAUSE OF THE
CONSTITUTION. 

PENNSYLVANIA ENACTED A LAW INCLUDING PROVISIONS TO PROTECT PRODUCERS
WHICH WERE VERY SIMILAR TO THOSE OF THIS NEW YORK ACT.  A CONCERN WHICH
OPERATED A RECEIVING PLANT IN PENNSYLVANIA FROM WHICH IT SHIPPED MILK
TO THE NEW YORK CITY MARKET CHALLENGED THE ACT UPON GROUNDS THUS
DEFINED BY THIS COURT:  "THE RESPONDENT CONTENDS THAT THE ACT, IF
CONSTRUED TO REQUIRE IT TO OBTAIN A LICENSE, TO FILE A BOND FOR THE
PROTECTION OF PRODUCERS, AND TO PAY THE FARMERS THE PRICES PRESCRIBED
BY THE BOARD, UNCONSTITUTIONALLY REGULATES AND BURDENS INTERSTATE
COMMERCE."  MILK BOARD V. EISENBERG CO., 306 U.S. 346, 350.  THIS
COURT, SPECIFICALLY LIMITING ITS JUDGMENT TO THE ACT'S PROVISIONS WITH
RESPECT TO LICENSE, BOND AND REGULATION OF PRICES TO BE PAID TO
PRODUCERS, ID. AT 352, CONSIDERED THEIR EFFECT ON INTERSTATE COMMERCE
"INCIDENTAL AND NOT FORBIDDEN BY THE CONSTITUTION, IN THE ABSENCE OF
REGULATION BY CONGRESS."  ID. AT 353. 

THE PRESENT CONTROVERSY BEGINS WHERE THE EISENBERG DECISION LEFT
OFF.  NEW YORK'S REGULATIONS, DESIGNED TO ASSURE PRODUCERS A FAIR PRICE
AND A RESPONSIBLE PURCHASER, AND CONSUMERS A SANITARY AND MODERNLY
EQUIPPED HANDLER, ARE NOT CHALLENGED HERE BUT HAVE BEEN COMPLIED WITH. 
IT IS ONLY ADDITIONAL RESTRICTIONS, IMPOSED FOR THE AVOWED PURPOSE AND
WITH THE PRACTICAL EFFECT OF CURTAILING THE VOLUME OF INTERSTATE
COMMERCE TO AID LOCAL ECONOMIC INTERESTS, THAT ARE IN QUESTION HERE,
AND NO SUCH MEASURES WERE ATTEMPTED OR SUCH ENDS SOUGHT TO BE SERVED IN
THE ACT BEFORE THE COURT IN THE EISENBERG CASE.  FN9 

OUR DECISION IN A MILK LITIGATION MOST RELEVANT TO THE PRESENT
CONTROVERSY DEALS WITH THE CONVERSE OF THE PRESENT SITUATION.  BALDWIN
V. SEELIG, 294 U.S. 511.  IN THAT CASE, NEW YORK PLACED CONDITIONS AND
LIMITATIONS ON THE LOCAL SALE OF MILK IMPORTED FROM VERMONT DESIGNED IN
PRACTICAL EFFECT TO EXCLUDE IT, WHILE HERE ITS ORDER PROPOSES TO LIMIT
THE LOCAL FACILITIES FOR PURCHASE OF ADDITIONAL MILK SO AS TO WITHHOLD
MILK FROM EXPORT.  THE STATE AGREED THEN, AS NOW, THAT THE COMMERCE
CLAUSE PROHIBITS IT FROM DIRECTLY CURTAILING MOVEMENT OF MILK INTO OR
OUT OF THE STATE.  BUT IN THE EARLIER CASE, IT CONTENDED THAT THE SAME
RESULT COULD BE ACCOMPLISHED BY CONTROLLING DELIVERY, BOTTLING AND SALE
AFTER ARRIVAL, WHILE HERE IT SAYS IT CAN DO SO BY CURTAILING FACILITIES
FOR ITS PURCHASE AND RECEIPT BEFORE IT IS SHIPPED OUT.  IN NEITHER CASE
IS THE MEASURE SUPPORTED BY HEALTH OR SAFETY CONSIDERATIONS BUT SOLELY
BY PROTECTION OF LOCAL ECONOMIC INTERESTS, SUCH AS SUPPLY FOR LOCAL
CONSUMPTION AND LIMITATION OF COMPETITION.  THIS COURT UNANIMOUSLY
REJECTED THE STATE'S CONTENTION IN THE SEELIG CASE AND HELD THAT THE
COMMERCE CLAUSE, EVEN IN THE ABSENCE OF CONGRESSIONAL ACTION, PROHIBITS
SUCH REGULATIONS FOR SUCH ENDS. 

THE OPINION WAS BY MR. JUSTICE CARDOZO, EXPERIENCED IN THE MILK
PROBLEMS OF NEW YORK AND FAVORABLY DISPOSED TOWARD THE EFFORTS OF THE
STATE TO CONTROL THE INDUSTRY.  HEGEMAN FARMS CORP. V. BALDWIN, 293
U.S. 163; BORDEN'S CO. V. BALDWIN, 293 U.S. 194, CONCURRENCE AT 213;
MAYFLOWER FARMS V. TEN EYCK, 297 U.S. 266, DISSENT AT 274.  IT
RECOGNIZED, AS DO WE, BROAD POWER IN THE STATE TO PROTECT ITS
INHABITANTS AGAINST PERILS TO HEALTH OR SAFETY, FRAUDULENT TRADERS AND
HIGHWAY HAZARDS, EVEN BY USE OF MEASURES WHICH BEAR ADVERSELY UPON
INTERSTATE COMMERCE.  BUT IT LAID REPEATED EMPHASIS UPON THE PRINCIPLE
THAT THE STATE MAY NOT PROMOTE ITS OWN ECONOMIC ADVANTAGES BY
CURTAILMENT OR BURDENING OF INTERSTATE COMMERCE. 

THE CONSTITUTION, SAID MR. JUSTICE CARDOZO FOR THE UNANIMOUS COURT,
"WAS FRAMED UPON THE THEORY THAT THE PEOPLES OF THE SEVERAL STATES MUST
SINK OR SWIM TOGETHER, AND THAT IN THE LONG RUN PROSPERITY AND
SALVATION ARE IN UNION AND NOT DIVISION."  FN10  HE REITERATED THAT THE
ECONOMIC OBJECTIVE, AS DISTINGUISHED FROM ANY HEALTH, SAFETY AND FAIR
DEALING PURPOSE OF THE REGULATION, WAS THE ROOT OF ITS INVALIDITY.  THE
ACTION OF THE STATE WOULD "NEUTRALIZE THE ECONOMIC CONSEQUENCES OF FREE
TRADE AMONG THE STATES."  FN11  "SUCH A POWER, IF EXERTED, WILL SET A
BARRIER TO TRAFFIC BETWEEN ONE STATE AND ANOTHER AS EFFECTIVE AS IF
CUSTOMS DUTIES, EQUAL TO THE PRICE DIFFERENTIAL, HAD BEEN LAID UPON THE
THING TRANSPORTED."  FN12  "IF NEW YORK, IN ORDER TO PROMOTE THE
ECONOMIC WELFARE OF HER FARMERS, MAY GUARD THEM AGAINST COMPETITION
WITH THE CHEAPER PRICES OF VERMONT, THE DOOR HAS BEEN OPENED TO
RIVALRIES AND REPRISALS THAT WERE MEANT TO BE AVERTED BY SUBJECTING
COMMERCE BETWEEN THE STATES TO THE POWER OF THE NATION."  N13  AND
AGAIN, "NEITHER THE POWER TO TAX NOR THE POLICE POWER MAY BE USED BY
THE STATE OF DESTINATION WITH THE AIM AND EFFECT OF ESTABLISHING AN
ECONOMIC BARRIER AGAINST COMPETITION WITH THE PRODUCTS OF ANOTHER STATE
OR THE LABOR OF ITS RESIDENTS.  RESTRICTIONS SO CONTRIVED ARE AN
UNREASONABLE CLOG UPON THE MOBILITY OF COMMERCE.  THEY SET UP WHAT IS
EQUIVALENT TO A RAMPART OF CUSTOMS DUTIES DESIGNED TO NEUTRALIZE
ADVANTAGES BELONGING TO THE PLACE OF ORIGIN.  THEY ARE THUS HOSTILE IN
CONCEPTION AS WELL AS BURDENSOME IN RESULT."  FN14 

THIS DISTINCTION BETWEEN THE POWER OF THE STATE TO SHELTER ITS PEOPLE
FROM MENACES TO THEIR HEALTH OR SAFETY AND FROM FRAUD, EVEN WHEN THOSE
DANGERS EMANATE FROM INTERSTATE COMMERCE, AND ITS LACK OF POWER TO
RETARD, BURDEN OR CONSTRICT THE FLOW OF SUCH COMMERCE FOR THEIR
ECONOMIC ADVANTAGE, IS ONE DEEPLY ROOTED IN BOTH OUR HISTORY AND OUR
LAW. 

WHEN VICTORY RELIEVED THE COLONIES FROM THE PRESSURE FOR SOLIDARITY
THAT WAR HAD EXERTED, A DRIFT TOWARD ANARCHY AND COMMERCIAL WARFARE
BETWEEN STATES BEGAN.  "  ...  EACH STATE WOULD LEGISLATE ACCORDING TO
ITS ESTIMATE OF ITS OWN INTERESTS, THE IMPORTANCE OF ITS OWN PRODUCTS,
AND THE LOCAL ADVANTAGES OR DISADVANTAGES OF ITS POSITION IN A
POLITICAL OR COMMERCIAL VIEW."  THIS CAME "TO THREATEN AT ONCE THE
PEACE AND SAFETY OF THE UNION."  STORY, THE CONSTITUTION, SECS. 259,
260.  SEE FISKE, THE CRITICAL PERIOD OF AMERICAN HISTORY, 144; WARREN,
THE MAKING OF THE CONSTITUTION, 567.  THE SOLE PURPOSE FOR WHICH
VIRGINIA INITIATED THE MOVEMENT WHICH ULTIMATELY PRODUCED THE
CONSTITUTION WAS "TO TAKE INTO CONSIDERATION THE TRADE OF THE UNITED
STATES; TO EXAMINE THE RELATIVE SITUATIONS AND TRADE OF THE SAID
STATES; TO CONSIDER HOW FAR A UNIFORM SYSTEM IN THEIR COMMERCIAL
REGULATIONS MAY BE NECESSARY TO THEIR COMMON INTEREST AND THEIR
PERMANENT HARMONY" AND FOR THAT PURPOSE THE GENERAL ASSEMBLY OF
VIRGINIA IN JANUARY OF 1786 NAMED COMMISSIONERS AND PROPOSED THEIR
MEETING WITH THOSE FROM OTHER STATES.  DOCUMENTS, FORMATION OF THE
UNION, H.R. DOC. NO. 398, 12 H. DOCS., 69TH CONG., 1ST SESS., P. 38. 
THE DESIRE OF THE FOREFATHERS TO FEDERALIZE REGULATION OF FOREIGN AND
INTERSTATE COMMERCE STANDS IN SHARP CONTRAST TO THEIR JEALOUS
PRESERVATION OF THE STATE'S POWER OVER ITS INTERNAL AFFAIRS.  NO OTHER
FEDERAL POWER WAS SO UNIVERSALLY ASSUMED TO BE NECESSARY, NO OTHER
STATE POWER WAS SO READILY RELINQUISHED.  THERE WAS NO DESIRE TO
AUTHORIZE FEDERAL INTERFERENCE WITH SOCIAL CONDITIONS OR LEGAL
INSTITUTIONS OF THE STATES.  EVEN THE BILL OF RIGHTS AMENDMENTS WERE
FRAMED ONLY AS A LIMITATION UPON THE POWERS OF CONGRESS.  THE STATES
WERE QUITE CONTENT WITH THEIR SEVERAL AND DIVERSE CONTROLS OVER MOST
MATTERS BUT, AS MADISON HAS INDICATED, "WANT OF A GENERAL POWER OVER
COMMERCE LED TO AN EXERCISE OF THIS POWER SEPARATELY, BY THE STATES,
WCH NOT ONLY PROVED ABORTIVE, BUT ENGENDERED RIVAL, CONFLICTING AND
ANGRY REGULATIONS."  3 FARRAND, RECORDS OF THE FEDERAL CONVENTION,
547. 

THE NECESSITY OF CENTRALIZED REGULATION OF COMMERCE AMONG THE STATES
WAS SO OBVIOUS AND SO FULLY RECOGNIZED THAT THE FEW WORDS OF THE
COMMERCE CLAUSE WERE LITTLE ILLUMINATED BY DEBATE.  BUT THE
SIGNIFICANCE OF THE CLAUSE WAS NOT LOST AND ITS EFFECT WAS IMMEDIATE
AND SALUTARY.  WE ARE TOLD BY SO RESPONSIBLE AN AUTHORITY AS MR.
JEFFERSON'S FIRST APPOINTEE TO THIS COURT THAT "THERE WAS NOT A STATE
IN THE UNION, IN WHICH THERE DID NOT, AT THAT TIME, EXIST A VARIETY OF
COMMERCIAL REGULATIONS; CONCERNING WHICH IT IS TOO MUCH TO SUPPOSE,
THAT THE WHOLE GROUND COVERED BY THOSE REGULATIONS WAS IMMEDIATELY
ASSUMED BY ACTUAL LEGISLATION, UNDER THE AUTHORITY OF THE UNION.  BUT
WHERE WAS THE EXISTING STATUTE ON THIS SUBJECT, THAT A STATE ATTEMPTED
TO EXECUTE?  OR BY WHAT STATE WAS IT EVER THOUGHT NECESSARY TO REPEAL
THOSE STATUTES?  BY COMMON CONSENT, THOSE LAWS DROPPED LIFELESS FROM
THEIR STATUTE BOOKS, FOR WANT OF THE SUSTAINING POWER, THAT HAD BEEN
RELINQUISHED TO CONGRESS."  GIBBONS V. OGDEN, 9 WHEAT.  1, CONCURRING
OPINION AT 226. 

THE COMMERCE CLAUSE IS ONE OF THE MOST PROLIFIC SOURCES OF NATIONAL
POWER AND AN EQUALLY PROLIFIC SOURCE OF CONFLICT WITH LEGISLATION OF
THE STATE.  WHILE THE CONSTITUTION VESTS IN CONGRESS THE POWER TO
REGULATE COMMERCE AMONG THE STATES, IT DOES NOT SAY WHAT THE STATES MAY
OR MAY NOT DO IN THE ABSENCE OF CONGRESSIONAL ACTION, NOR HOW TO DRAW
THE LINE BETWEEN WHAT IS AND WHAT IS NOT COMMERCE AMONG THE STATES. 
PERHAPS EVEN MORE THAN BY INTERPRETATION OF ITS WRITTEN WORD, THIS
COURT HAS ADVANCED THE SOLIDARITY AND PROSPERITY OF THIS NATION BY THE
MEANING IT HAS GIVEN TO THESE GREAT SILENCES OF THE CONSTITUTION. 

BALDWIN V. SEELIG, 294 U.S. 511, IS AN EXPLICIT, IMPRESSIVE, RECENT
AND UNANIMOUS CONDEMNATION BY THIS COURT OF ECONOMIC RESTRAINTS ON
INTERSTATE COMMERCE FOR LOCAL ECONOMIC ADVANTAGE, BUT IT DOES NOT STAND
ALONE.  THIS COURT CONSISTENTLY HAS REBUFFED ATTEMPTS OF STATES TO
ADVANCE THEIR OWN COMMERCIAL INTERESTS BY CURTAILING THE MOVEMENT OF
ARTICLES OF COMMERCE, EITHER INTO OR OUT OF THE STATE, WHILE GENERALLY
SUPPORTING THEIR RIGHT TO IMPOSE EVEN BURDENSOME REGULATIONS IN THE
INTEREST OF LOCAL HEALTH AND SAFETY.  AS MOST STATES SERVE THEIR OWN
INTERESTS BEST BY SENDING THEIR PRODUCE TO MARKET, THE CASES IN WHICH
THIS COURT HAS BEEN OBLIGED TO DEAL WITH PROHIBITIONS OR LIMITATIONS BY
STATES UPON EXPORTS OF ARTICLES OF COMMERCE ARE NOT NUMEROUS.  HOWEVER,
IN A LEADING CASE, OKLAHOMA V. KANSAS NATURAL GAS CO., 221 U.S. 229,
THE COURT DENIED CONSTITUTIONAL VALIDITY TO A STATUTE BY WHICH
OKLAHOMA, BY REGULATION OF GAS COMPANIES AND PIPE LINES, SOUGHT TO
RESTRICT THE EXPORT OF NATURAL GAS.  THE COURT HELD THAT WHEN A STATE
RECOGNIZES AN ARTICLE TO BE A SUBJECT OF COMMERCE, IT CANNOT PROHIBIT
IT FROM BEING A SUBJECT OF INTERSTATE COMMERCE; THAT THE RIGHT TO
ENGAGE IN INTERSTATE COMMERCE IS NOT THE GIFT OF A STATE, AND THAT A
STATE CANNOT REGULATE OR RESTRAIN IT. 

LATER WEST VIRGINIA, BY ACT OF THE LEGISLATURE, UNDERTOOK REGULATION
OF PIPE-LINE COMPANIES INTENDED TO KEEP WITHIN WEST VIRGINIA ALL
NATURAL GAS THERE PRODUCED THAT MIGHT BE REQUIRED FOR LOCAL NEEDS. 
THIS COURT HELD THAT THE STATE COULD NOT ACCORD TO ITS OWN CONSUMERS A
PREFERRED RIGHT OF PURCHASE OVER CONSUMERS IN OTHER STATES AND IN
LANGUAGE APPLICABLE TO THE CASE BEFORE US NOW SAID, "MUCH OF THE
BUSINESS IS INTERSTATE AND HAS GROWN UP THROUGH A COURSE OF YEARS. 
WEST VIRGINIA ENCOURAGED AND SANCTIONED THE DEVELOPMENT OF THAT PART OF
THE BUSINESS AND HAS PROFITED GREATLY BY IT.  HER PRESENT EFFORT,
RIGHTLY UNDERSTOOD, IS TO SUBORDINATE THAT PART TO THE LOCAL BUSINESS
WITHIN HER BORDERS.  IN OTHER WORDS, IT IS IN EFFECT AN ATTEMPT TO
REGULATE THE INTERSTATE BUSINESS TO THE ADVANTAGE OF THE LOCAL
CONSUMERS.  BUT THIS SHE MAY NOT DO."  PENNSYLVANIA V. WEST VIRGINIA,
262 U.S. 553, AT 597, 598. 

IN FOSTER PACKING CO. V. HAYDEL, 278 U.S. 1, THE COURT CITED THESE
TWO CASES AS AUTHORITY FOR THE PROPOSITION THAT "A STATE IS WITHOUT
POWER TO PREVENT PRIVATELY OWNED ARTICLES OF TRADE FROM BEING SHIPPED
AND SOLD IN INTERSTATE COMMERCE ON THE GROUND THAT THEY ARE REQUIRED TO
SATISFY LOCAL DEMANDS OR BECAUSE THEY ARE NEEDED BY THE PEOPLE OF THE
STATE."  278 U.S. 1, 10.  THE COURT ALSO POINTED OUT THAT "THE PURPOSE
(OF THE STATUTE THERE INVOLVED) IS NOT TO RETAIN THE SHRIMP FOR THE USE
OF THE PEOPLE OF LOUISIANA; IT IS TO FAVOR THE CANNING OF THE MEAT AND
THE MANUFACTURE OF BRAN IN LOUISIANA  ...  "  ID., AT 13.  THUS IN THE
FOSTER CASE, AND IN THE COMPANION CASE JOHNSON V. HAYDEL, 278 U.S. 16,
ALTHOUGH THE ARTICLES SOUGHT TO BE REGULATED WERE SHRIMP AND OYSTERS,
WHICH UNDER ORDINARY CONDITIONS MIGHT NOT BE CONSIDERED SUBJECTS OF
COMMERCE, THE COURT INVALIDATED STATE ENACTMENTS ATTEMPTING TO PROMOTE
LOCAL INTERESTS AT THE EXPENSE OF INTERSTATE COMMERCE. 

IN PARKER V. BROWN, 317 U.S. 341, CALIFORNIA'S RESTRICTIONS ON SALES
OF RAISINS WITHIN THE STATE TO THOSE WHO WERE THERE PROCESSING AND
PACKING THEM WERE ATTACKED AS INVALID BECAUSE APPROXIMATELY 95% OF THE
CROP WOULD FIND ITS WAY INTO INTERSTATE COMMERCE AFTER PROCESSING AND
PACKING.  HOWEVER, THE COURT SAID:  "  ...  NO CASE HAS GONE SO FAR AS
TO HOLD THAT A STATE COULD NOT LICENSE OR OTHERWISE REGULATE THE SALE
OF ARTICLES WITHIN THE STATE BECAUSE THE BUYER, AFTER PROCESSING AND
PACKING THEM, WILL, IN THE NORMAL COURSE OF BUSINESS, SELL AND SHIP
THEM IN INTERSTATE COMMERCE.  ...  THE REGULATION IS THUS APPLIED TO
TRANSACTIONS WHOLLY INTRASTATE BEFORE THE RAISINS ARE READY FOR
SHIPMENT IN INTERSTATE COMMERCE."  317 U.S. 341, AT 361.  THIS
REGULATION OF SALE TO LOCAL PROCESSORS WAS DISTINGUISHED FROM THOSE
WHICH WERE HELD INVALID IN LEMKE V. FARMERS GRAIN CO., 258 U.S. 50, AND
SHAFER V. FARMERS GRAIN CO., 268 U.S. 189, BECAUSE THE REGULATION IN
THE EARLIER CASES WAS "OF THE BUSINESS OF THOSE WHO PURCHASED GRAIN
WITHIN THE STATE FOR IMMEDIATE SHIPMENT OUT OF IT."  IBID. IN THOSE
CASES, THE REGULATION WAS OF INTERSTATE COMMERCE ITSELF.  ANOTHER
ELEMENT IN THE PARKER CASE WHICH LED THE COURT TO SUSTAIN THE
CALIFORNIA REGULATION WAS THAT IT WAS ONE WHICH THE POLICY OF CONGRESS
WAS TO AID AND ENCOURAGE, AND THE SECRETARY OF AGRICULTURE HAD APPROVED
THE STATE PROGRAM BY LOANS. 

THE MOST RECENT CASE OF THIS KIND, TOOMER V. WITSELL, 334 U.S. 385,
INVOLVED, AMONG OTHER THINGS, A SOUTH CAROLINA REQUIREMENT THAT THE
OWNERS OF SHRIMP BOATS FISHING OFF ITS SHORES DOCK AT A SOUTH CAROLINA
PORT AND UNLOAD, PACK AND STAMP THEIR CATCH WITH A TAX STAMP BEFORE
SHIPPING OR TRANSPORTING IT TO ANOTHER STATE.  IT WAS CONSIDERED THAT
THE EFFECT OF THIS SECTION OF THE STATUTE WAS TO DIVERT TO SOUTH
CAROLINA EMPLOYMENT AND BUSINESS WHICH MIGHT OTHERWISE GO TO OTHER
STATES, AND THE COURT POINTED OUT THAT "THE NECESSARY TENDENCY OF THE
STATUTE IS TO IMPOSE AN ARTIFICIAL RIGIDITY ON THE ECONOMIC PATTERN OF
THE INDUSTRY."  334 U.S. 385, 403-404.  IT WAS HELD THAT THE COMMERCE
CLAUSE WAS VIOLATED BY SUCH A PROVISION. 

THIS PRINCIPLE THAT OUR ECONOMIC UNIT IS THE NATION, WHICH ALONE HAS
THE GAMUT OF POWERS NECESSARY TO CONTROL OF THE ECONOMY, INCLUDING THE
VITAL POWER OF ERECTING CUSTOMS BARRIERS AGAINST FOREIGN COMPETITION,
HAS AS ITS COROLLARY THAT THE STATES ARE NOT SEPARABLE ECONOMIC UNITS. 
AS THE COURT SAID IN BALDWIN V. SEELIG, 294 U.S. 541, 527, "WHAT IS
ULTIMATE IS THE PRINCIPLE THAT ONE STATE IN ITS DEALINGS WITH ANOTHER
MAY NOT PLACE ITSELF IN A POSITION OF ECONOMIC ISOLATION."  IN SO
SPEAKING IT BUT FOLLOWED THE PRINCIPLE THAT THE STATE MAY NOT USE ITS
ADMITTED POWERS TO PROTECT THE HEALTH AND SAFETY OF ITS PEOPLE AS A
BASIS FOR SUPPRESSING COMPETITION.  IN BUCK V. KUYKENDALL, 267 U.S.
307, THE COURT STRUCK DOWN A STATE ACT BECAUSE, IN THE LANGUAGE OF MR.
JUSTICE BRANDEIS, "ITS PRIMARY PURPOSE IS NOT REGULATION WITH A VIEW TO
SAFETY OR TO CONSERVATION OF THE HIGHWAYS, BUT THE PROHIBITION OF
COMPETITION."  THE SAME ARGUMENT HERE ADVANCED, THAT LIMITATION OF
COMPETITION WOULD ITSELF CONTRIBUTE TO SAFETY AND CONSERVATION, AND
THEREFORE INDIRECTLY SERVE AN END PERMISSIBLE TO THE STATE, WAS THERE
DECLARED "NOT SOUND."  267 U.S. 307, 315.  IT IS NO BETTER HERE.  THIS
COURT HAS NOT ONLY RECOGNIZED THIS DISABILITY OF THE STATE TO ISOLATE
ITS OWN ECONOMY AS A BASIS FOR STRIKING DOWN PAROCHIAL LEGISLATIVE
POLICIES DESIGNED TO DO SO, BUT IT HAS RECOGNIZED THE INCAPACITY OF THE
STATE TO PROTECT ITS OWN INHABITANTS FROM COMPETITION AS A REASON FOR
SUSTAINING PARTICULAR EXERCISES OF THE COMMERCE POWER OF CONGRESS TO
REACH MATTERS IN WHICH STATES WERE SO DISABLED.  CF. STEWARD MACHINE
CO. V. DAVIS, 301 U.S. 548; CARMICHAEL V. SOUTHERN COAL CO., 301 U.S.
495; HELVERING V. DAVIS, 301 U.S. 619. 

THE MATERIAL SUCCESS THAT HAS COME TO INHABITANTS OF THE STATES WHICH
MAKE UP THIS FEDERAL FREE TRADE UNIT HAS BEEN THE MOST IMPRESSIVE IN
THE HISTORY OF COMMERCE, BUT THE ESTABLISHED INTERDEPENDENCE OF THE
STATES ONLY EMPHASIZES THE NECESSITY OF PROTECTING INTERSTATE MOVEMENT
OF GOODS AGAINST LOCAL BURDENS AND REPRESSIONS.  WE NEED ONLY CONSIDER
THE CONSEQUENCES IF EACH OF THE FEW STATES THAT PRODUCE COPPER, LEAD,
HIGH-GRADE IRON ORE, TIMBER, COTTON, OIL OR GAS SHOULD DECREE THAT
INDUSTRIES LOCATED IN THAT STATE SHALL HAVE PRIORITY.  WHAT FANTASTIC
RIVALRIES AND DISLOCATIONS AND REPRISALS WOULD ENSUE IF SUCH PRACTICES
WERE BEGUN.  OR SUPPOSE THAT THE FIELD OF DISCRIMINATION AND
RETALIATION BE INDUSTRY.  MAY MICHIGAN PROVIDE THAT AUTOMOBILES CANNOT
BE TAKEN OUT OF THAT STATE UNTIL LOCAL DEALERS' DEMANDS ARE FULLY MET? 
WOULD SHE NOT HAVE EVERY ARGUMENT IN THE FAVOR OF SUCH A STATUTE THAT
CAN BE OFFERED IN SUPPORT OF NEW YORK'S LIMITING SALES OF MILK FOR OUT
OF-STATE SHIPMENT TO PROTECT THE ECONOMIC INTERESTS OF HER COMPETING
DEALERS AND LOCAL CONSUMERS?  COULD OHIO THEN POUNCE UPON THE RUBBER
TIRE INDUSTRY, ON WHICH SHE HAS A SUBSTANTIAL GRIP, TO RETALIATE FOR
MICHIGAN'S AUTO MONOPOLY? 

OUR SYSTEM, FOSTERED BY THE COMMERCE CLAUSE, IS THAT EVERY FARMER AND
EVERY CRAFTSMAN SHALL BE ENCOURAGED TO PRODUCE BY THE CERTAINTY THAT HE
WILL HAVE FREE ACCESS TO EVERY MARKET IN THE NATION, THAT NO HOME
EMBARGOES WILL WITHHOLD HIS EXPORTS, AND NO FOREIGN STATE WILL BY
CUSTOMS DUTIES OR REGULATIONS EXCLUDE THEM.  LIKEWISE, EVERY CONSUMER
MAY LOOK TO THE FREE COMPETITION FROM EVERY PRODUCING AREA IN THE
NATION TO PROTECT HIM FROM EXPLOITATION BY ANY.  SUCH WAS THE VISION OF
THE FOUNDERS; SUCH HAS BEEN THE DOCTRINE OF THIS COURT WHICH HAS GIVEN
IT REALITY. 

THE STATE, HOWEVER, INSISTS THAT DENIAL OF THE LICENSE FOR A NEW
PLANT DOES NOT RESTRICT OR OBSTRUCT INTERSTATE COMMERCE, BECAUSE
PETITIONER HAS BEEN LICENSED AT ITS OTHER PLANTS WITHOUT CONDITION OR
LIMITATION AS TO THE QUANTITIES IT MAY PURCHASE.  HENCE, IT IS SAID,
ALL THAT HAS BEEN DENIED PETITIONER IS A LOCAL CONVENIENCE - THAT OF
BEING ABLE TO BUY AND RECEIVE AT GREENWICH QUANTITIES OF MILK IT IS
FREE TO BUY AT EAGLE BRIDGE AND SALEM.  IT SUGGESTS THAT, BY INCREASED
EFFICIENCY OR ENLARGED CAPACITY AT ITS OTHER PLANTS, PETITIONER MIGHT
SUFFICIENTLY INCREASE ITS SUPPLY THROUGH THOSE FACILITIES. 

THE WEAKNESS OF THIS CONTENTION IS THAT A BUYER HAS TO BUY WHERE
THERE IS A WILLING SELLER, AND THE PECULIARITIES OF THE MILK BUSINESS
NECESSITATE LOCATION OF A RECEIVING AND COOLING STATION FOR NEARBY
PRODUCERS.  THE COMMISSIONER HAS NOT MADE AND THERE IS NOTHING TO
PERSUADE US THAT HE COULD HAVE MADE FINDINGS THAT PETITIONER CAN OBTAIN
SUCH ADDITIONAL SUPPLIES THROUGH ITS EXISTING FACILITIES; INDEED HE
FOUND THAT "APPLICANT HAS EXPERIENCED SOME DIFFICULTY DURING THE FLUSH
SEASON BECAUSE OF THE INABILITY OF THE PLANT FACILITIES TO HANDLE THE
MILK BY 9:00 A.M.," THE TIME ITS RECEIPT IS REQUIRED BY BOSTON HEALTH
AUTHORITIES UNLESS IT IS COOLED BY THE FARMER BEFORE DELIVERY, AND A
SUBSTANTIAL PART OF IT IS NOT. 

BUT THE ARGUMENT ALSO ASKS US TO ASSUME THAT THE COMMISSIONER'S ORDER
WILL NOT OPERATE IN THE WAY HE FOUND THAT IT WOULD AS A REASON FOR
MAKING IT.  HE FOUND THAT PETITIONER, AT ITS NEW PLANT, WOULD DIVERT
MILK FROM THE PLANTS OF SOME OTHER LARGE HANDLERS IN THE VICINITY,
WHICH PLANTS "CAN HANDLE MORE MILK."  THIS COMPETITION HE DID NOT
APPROVE.  HE ALSO FOUND IT WOULD TEND TO DEPRIVE LOCAL MARKETS OF
NEEDED SUPPLIES DURING THE SHORT SEASON.  IN THE FACE OF AFFIRMATIVE
FINDINGS THAT THE PROPOSED PLANT WOULD INCREASE PETITIONER'S SUPPLY, WE
CAN HARDLY BE ASKED TO ASSUME THAT DENIAL OF THE LICENSE WILL NOT DENY
PETITIONER ACCESS TO SUCH ADDED SUPPLIES.  WHILE THE STATE POWER IS
APPLIED IN THIS CASE TO LIMIT EXPANSION BY A HANDLER OF MILK WHO
ALREADY HAS BEEN ALLOWED SOME PURCHASING FACILITIES, THE ARGUMENT FOR
DOING SO, IF SUSTAINED, WOULD BE EQUALLY EFFECTIVE TO EXCLUDE AN
ENTIRELY NEW FOREIGN HANDLER FROM COMING INTO THE STATE TO PURCHASE. 

THE STATE, HOWEVER, CONTENDS THAT SUCH RESTRAINT OR OBSTRUCTION AS
ITS ORDER IMPOSES ON INTERSTATE COMMERCE DOES NOT VIOLATE THE COMMERCE
CLAUSE BECAUSE THE STATE REGULATION COINCIDES WITH, SUPPLEMENTS AND IS
PART OF THE FEDERAL REGULATORY SCHEME.  THIS CONTENTION THAT CONGRESS
HAS TAKEN POSSESSION OF "THE FIELD" BUT SHARED IT WITH THE STATE, IT IS
TO BE NOTED, REVERSES THE CONTENTION USUALLY MADE IN COMPARABLE CASES,
WHICH IS THAT CONGRESS HAS NOT FULLY OCCUPIED THE FIELD AND HENCE THE
STATE MAY FILL THE VOID.    CONGRESS, AS A PART OF ITS AGRICULTURAL
MARKETING AGREEMENT ACT,  FN15  AUTHORIZES THE SECRETARY OF AGRICULTURE
TO ISSUE ORDERS REGULATING THE HANDLING OF SEVERAL AGRICULTURAL
PRODUCTS, INCLUDING MILK, WHEN THEY ARE WITHIN THE REACH OF ITS
COMMERCE POWER.  AS TO MILK, IT SETS UP, SEC. 8C (5), 7 U.S.C. SEC.
608C (5), A RATHER COMPLICATED SYSTEM OF FIXING PRICES TO BE PAID TO
PRODUCERS THROUGH EQUALIZATION POOLS WHICH DISTRIBUTE THE TOTAL VALUE
OF ALL MILK SOLD IN A SPECIFIED MARKET AMONG THE PRODUCERS SUPPLYING
THAT MARKET.  THIS FEDERAL REGULATION WAS SUSTAINED AND EXPLAINED IN
UNITED STATES V. ROCK ROYAL CO-OPERATIVE, 307 U.S. 533; H. P. HOOD &
SONS V. UNITED STATES, 307 U.S. 588; SEE ALSO STARK V. WICKARD, 321
U.S. 288.  SECTION 10 OF THE FEDERAL ACT  FN16  ALSO AUTHORIZES FEDERAL
OFFICIALS TO ENGAGE IN CONFERENCES, JOINT HEARINGS AND COOPERATION WITH
THE STATE AUTHORITIES. 

NEW YORK STATE, IN ITS PRESENT AND ANTECEDENT STATUTES, HAS
AUTHORIZED ITS STATE AUTHORITIES TO CONFER WITH FEDERAL OFFICIALS ON
MILK CONTROL PROBLEMS  FN17  AND A SERIES OF CONFERENCES AND JOINT
HEARINGS HAVE BEEN HELD.  THE TWO AUTHORITIES FORMALIZED THEIR
COLLABORATION IN 1938 BY SIGNING A "MEMORANDUM OF THE PRINCIPLES OF
COOPERATION TO BE OBSERVED IN THE FORMULATION AND ADMINISTRATION OF
COMPLEMENTARY ORDERS FOR MILK FOR MARKETING AREAS LOCATED WITHIN THE
STATE OF NEW YORK TO BE ISSUED CONCURRENTLY BY THE SECRETARY OF
AGRICULTURE AND THE COMMISSIONER OF AGRICULTURE AND MARKETS." 

BUT NO FEDERAL APPROVAL OR RESPONSIBILITY FOR THE CHALLENGED FEATURES
OF THIS ORDER APPEARS IN ANY OF THESE PROVISIONS OR ARRANGEMENTS.  THE
"MEMORANDUM OF THE PRINCIPLES OF COOPERATION" RELATES ONLY TO MARKETING
AREAS IN NEW YORK, WHILE THE MARKETING AREA SERVED BY HOOD IS ENTIRELY
OUTSIDE OF NEW YORK AND IS CONTROLLED BY FEDERAL ORDER NO. 4,
APPLICABLE TO THE GREATER BOSTON MARKET.  FN18  FEDERAL ORDER NO. 27 IS
APPLICABLE TO THE NEW YORK METROPOLITAN MARKET  FN19  AND IT IS AS TO
THIS ORDER THAT THE STATE OF NEW YORK IS RECOGNIZED BY THE MEMORANDUM
AS ENTITLED TO CONSULTATION.  THERE IS NO SUCH FINANCIAL SUPPORT AS WAS
GIVEN IN PARKER V. BROWN, 317 U.S. 341. 

THE CONGRESSIONAL REGULATION CONTEMPLATES AND PERMITS A WIDE LATITUDE
IN WHICH THE STATE MAY EXERCISE ITS POLICE POWER OVER THE LOCAL
FACILITIES FOR HANDLING MILK.  WE ASSUME, THOUGH IT IS NOT NECESSARY TO
DECIDE, THAT THE FEDERAL ACT DOES NOT PRECLUDE A STATE FROM PLACING
RESTRICTIONS AND OBSTRUCTIONS IN THE WAY OF INTERSTATE COMMERCE FOR THE
ENDS AND PURPOSES ALWAYS HELD PERMISSIBLE UNDER THE COMMERCE CLAUSE. 
BUT HERE THE CHALLENGE IS ONLY TO A DENIAL OF FACILITIES FOR INTERSTATE
COMMERCE UPON THE SOLE AND SPECIFIC GROUNDS THAT IT WILL SUBJECT OTHERS
TO COMPETITION AND TAKE SUPPLIES NEEDED LOCALLY, AN END, AS WE HAVE
SHOWN, ALWAYS HELD TO BE PRECLUDED BY THE COMMERCE CLAUSE.  WE HAVE NO
DOUBT THAT CONGRESS IN THE NATIONAL INTEREST COULD PROHIBIT OR CURTAIL
SHIPMENTS OF MILK IN INTERSTATE COMMERCE, UNLESS AND UNTIL LOCAL
DEMANDS ARE MET.  NOR DO WE KNOW OF ANY REASON WHY CONGRESS MAY NOT, IF
IT DEEMS IT IN THE NATIONAL INTEREST, AUTHORIZE THE STATES TO PLACE
SIMILAR RESTRAINTS ON MOVEMENT OF ARTICLES OF COMMERCE.  AND THE
PROVISIONS LOOKING TO STATE COOPERATION MAY BE SUFFICIENT TO WARRANT
THE STATE IN IMPOSING REGULATIONS APPROVED BY THE FEDERAL AUTHORITIES,
EVEN IF THEY OTHERWISE MIGHT RUN COUNTER TO THE DECISIONS THAT
COINCIDENCE IS AS FATAL AS CONFLICT WHEN CONGRESS ACTS.  SEE BETHLEHEM
STEEL CO. V. NEW YORK STATE LABOR RELATIONS BOARD, 330 U.S. 767.  IT
IS, OF COURSE, A QUITE DIFFERENT THING IF CONGRESS THROUGH ITS AGENTS
FINDS SUCH RESTRICTIONS UPON INTERSTATE COMMERCE ADVANCE THE NATIONAL
WELFARE, THAN IF A LOCALITY IS HELD FREE TO IMPOSE THEM BECAUSE IT,
JUDGING ITS OWN CAUSE, FINDS THEM IN THE INTEREST OF LOCAL PROSPERITY. 

WHEN IT IS CONSIDERED THAT THE FEDERAL ACT WAS PASSED EXPRESSLY TO
OVERCOME "DISRUPTION OF THE ORDERLY EXCHANGE OF COMMODITIES IN
INTERSTATE COMMERCE" AND CONDITIONS FOUND TO "BURDEN AND OBSTRUCT THE
NORMAL CHANNELS OF INTERSTATE COMMERCE," 7 U.S.C. SEC. 601, IT SEEMS
CLEAR THAT WE CAN NOT SUSTAIN THE STATE'S ARGUMENT THAT ITS
RESTRICTIONS HERE INVOLVED SUPPLEMENT AND FURTHER THE FEDERAL SCHEME. 

MOREOVER, WE CAN HARDLY ASSUME THAT THE CHALLENGED PROVISIONS OF THIS
ORDER ADVANCE THE FEDERAL SCHEME OF REGULATION BECAUSE CONGRESS FORBIDS
INCLUSION OF SUCH A POLICY IN A FEDERAL MILK ORDER.  SECTION 8C (5)(G)
OF THE ACT PROVIDES: 

"NO MARKETING AGREEMENT OR ORDER APPLICABLE TO MILK AND ITS PRODUCTS
IN ANY MARKETING AREA SHALL PROHIBIT OR IN ANY MANNER LIMIT, IN THE
CASE OF THE PRODUCTS OF MILK, THE MARKETING IN THAT AREA OF ANY MILK OR
PRODUCT THEREOF PRODUCED IN ANY PRODUCTION AREA IN THE UNITED STATES." 
FN20 

WHILE THERE MAY BE DIFFERENCE OF OPINION AS TO WHETHER THIS
AUTHORIZES THE FEDERAL ORDER TO LIMIT, SO LONG AS IT DOES NOT PROHIBIT,
INTERSTATE SHIPMENT OF MILK, SEE BAILEY FARM DAIRY CO. V. ANDERSON, 157
F.2D 87, 96; BAILEY FARM DAIRY CO. V. JONES, 61 F.SUPP.  209, 221 - A
QUESTION UPON WHICH WE EXPRESS NO OPINION - IT IS CLEAR THAT THE POLICY
OF THE PROVISION IS INCONSISTENT WITH THE STATE'S CONTENTION THAT IT
MAY, IN ITS OWN INTEREST, IMPOSE SUCH A LIMITATION AS A COINCIDENT OR
SUPPLEMENT TO FEDERAL REGULATION. 

THE ONLY FEDERAL RESTRICTION OF HANDLERS' PURCHASES FROM NEW
PRODUCERS, FOUND IN SEC. 8C (5)(B), AUTHORIZES INCLUSION, IN ORDERS
CONCERNING MILK OR MILK PRODUCTS, OF A CLAUSE PROVIDING THAT FOR
DELIVERIES MADE DURING THE FIRST SIXTY DAYS A NEW PRODUCER SHALL BE
PAID ONLY THE MINIMUM PRICE APPLICABLE FOR MILK OF THE PARTICULAR USE
CLASSIFICATION, SUBJECT TO ADJUSTMENTS NOT RELEVANT HERE.  FN21  THIS
PROVISION WAS INCLUDED IN THE 1935 AMENDMENT,  FN22  "TO PREVENT
ASSAULTS UPON THE PRICE STRUCTURE BY THE SPORADIC IMPORTATION OF MILK
FROM NEW PRODUCING AREAS, WHILE PERMITTING THE ORDERLY AND NATURAL
EXPANSION OF THE AREA SUPPLYING ANY MARKET  ...  "  S. REP. NO. 1011,
74TH CONG., 1ST SESS., P. 11.  AND, IT WAS ADDED, "THIS IS THE ONLY
LIMITATION UPON THE ENTRY OF NEW PRODUCERS - WHEREVER LOCATED - INTO A
MARKET, AND IT CAN REMAIN EFFECTIVE ONLY FOR THE SPECIFIED ...
PERIOD."  IBID.  THE BILL ORIGINALLY PROVIDED FOR A NINETY-DAY MINIMUM
PRICE PERIOD BUT IN CONFERENCE THE LESS RESTRICTIVE SIXTY-DAY PERIOD
WAS ADOPTED.  H.R. REP. NO. 1757, 74TH CONG., 1ST SESS., P. 21.  FN23 

THESE SECTIONS AND REPORTS INDICATE THAT IT IS THE DELIBERATE POLICY
OF THE CONGRESS TO PREVENT FEDERAL OFFICERS FROM PLACING BARRIERS IN
THE WAY OF THE INTERSTATE FLOW OF MILK.  WHILE A STATUTORY PROHIBITION
AGAINST FEDERAL INTERFERENCE WITH CERTAIN PHASES OF IT MAY NOT ALWAYS
IMPLY THAT THE STATE TOO IS PRECLUDED, IT IS OBVIOUS THAT A STATE
LIMITATION ON EXPORT FOR THE BENEFIT OF ITS OWN CONSUMERS IS NOT
AUTHORIZED BY THIS FEDERAL ACT.  THE PURPOSE AS EXPRESSED IN SEC. 1, 7
U.S.C. SEC. 601, IS TO AVOID CONDITIONS WHICH BURDEN AND OBSTRUCT THE
NORMAL CHANNELS OF INTERSTATE COMMERCE.  THE OBJECT OF THE FEDERAL
PROGRAM TO RAISE AND STABILIZE THE PRICE OF PRODUCTS WAS TO STIMULATE
INTERSTATE COMMERCE.  THE ORDER OF THE COMMISSIONER AVOWS ITSELF TO
HAVE THE OPPOSITE EFFECT.  IT CAN CLAIM NEITHER FEDERAL SPONSORSHIP NOR
CONGRESSIONAL SANCTION. 

SINCE THE STATUTE AS APPLIED VIOLATES THE COMMERCE CLAUSE AND IS NOT
AUTHORIZED BY FEDERAL LEGISLATION PURSUANT TO THAT CLAUSE, IT CANNOT
STAND.  THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE NEW YORK COURT OF APPEALS DESCRIBED THE GEOGRAPHICAL
SITUATION WITH RESPECT TO PETITIONER'S PRESENT AND PROPOSED PLANTS AS
FOLLOWS:  "THE EXTENSION WOULD HAVE PERMITTED PETITIONER TO OPERATE A
MILK RECEIVING PLANT AT GREENWICH, NEW YORK, IN ADDITION TO
PETITIONER'S OTHER SIMILAR PLANTS ALREADY LICENSED AND OPERATING AT
EAGLE BRIDGE, SALEM AND NORFOLK, IN THIS STATE.  EAGLE BRIDGE IS IN
RENSSELAER COUNTY AND SALEM AND GREENWICH ARE IN WASHINGTON COUNTY,
RENSSELAER COUNTY BEING ADJACENT TO WASHINGTON COUNTY ON THE SOUTH, AND
BOTH THESE COUNTIES BEING ON THE EASTERLY EDGE OF NEW YORK STATE,
BORDERING ON MASSACHUSETTS AND VERMONT.  PETITIONER'S NORFOLK
ESTABLISHMENT IS IN ST. LAWRENCE COUNTY IN ANOTHER PART OF NEW YORK
STATE, AND SERVES A DIFFERENT AREA AND A DIFFERENT GROUP OF MILK
PRODUCERS.  THE PRESENT EAGLE BRIDGE AND SALEM DEPOTS, HOWEVER, ARE
QUITE CLOSE TOGETHER AND THE PROPOSED GREENWICH PLANT, FOR WHICH A
LICENSE HAS BEEN REFUSED, IS TEN MILES FROM SALEM AND TWELVE MILES FROM
EAGLE BRIDGE."  297 N.Y. 209, 212; 78 N.E.2D 476, 477. 

FN2  LAWS OF 1934, C. 126. 

FN3  SECTION 258-C PROVIDES IN PERTINENT PART AS FOLLOWS: 

"NO LICENSE SHALL BE GRANTED TO A PERSON NOT NOW ENGAGED IN BUSINESS
AS A MILK DEALER EXCEPT FOR THE CONTINUATION OF A NOW EXISTING
BUSINESS, AND NO LICENSE SHALL BE GRANTED TO AUTHORIZE THE EXTENSION OF
AN EXISTING BUSINESS BY THE OPERATION OF AN ADDITIONAL PLANT OR OTHER
NEW OR ADDITIONAL FACILITY, UNLESS THE COMMISSIONER IS SATISFIED THAT
THE APPLICANT IS QUALIFIED BY CHARACTER, EXPERIENCE, FINANCIAL
RESPONSIBILITY AND EQUIPMENT TO PROPERLY CONDUCT THE PROPOSED BUSINESS,
THAT THE ISSUANCE OF THE LICENSE WILL NOT TEND TO A DESTRUCTIVE
COMPETITION IN A MARKET ALREADY ADEQUATELY SERVED, AND THAT THE
ISSUANCE OF THE LICENSE IS IN THE PUBLIC INTEREST.  ...  " 

FN4  THIS FINDING FOLLOWS THE STATUTORY LANGUAGE.  SEE NOTE 3. 

FN5  297 N.Y. 209, 78 N.E.2D 476. 

FN6  U.S. CONST., ART. I, SEC. 8, CL. 3, GRANTING CONGRESS POWER "TO
REGULATE COMMERCE  ... AMONG THE SEVERAL STATES  ...  " 

FN7  335 U.S. 808. 

FN8  "  ...  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." 

FN9  THE COURT SAID:  "THE COMMONWEALTH (OF PENNSYLVANIA) DOES NOT
ESSAY TO REGULATE OR TO RESTRAIN THE SHIPMENT OF THE RESPONDENT'S MILK
INTO NEW YORK  ...  "  306 U.S. 346, 352. 

FN10  294 U.S. 511, 523. 

FN11  ID., 526. 

FN12  ID., 521. 

FN13  ID., 522. 

FN14  ID., 527. 

FN15 ACT OF JUNE 3, 1937, C. 296, 50 STAT. 246, AS AMENDED, 7 U.S.C.
SEC. 601 ET SEQ. 

FN16  7 U.S.C. SEC. 610(I). 

FN17  SEE LAWS OF 1937, C. 798, SEC. 258-N. 

FN18  7 C.F.R. SECS. 904-904.202(1947 SUPP.). 

FN19  7 C.F.R. SECS. 927-927.202(1947 SUPP.). 

FN20  7 U.S.C. SEC. 608C (5)(G). 

FN21  SEE 7 U.S.C. SEC. 608C (5)(B). 

FN22  THE ACT OF AUGUST 24, 1935, 49 STAT. 750, AMENDED THE
AGRICULTURAL ADJUSTMENT ACT OF 1933, 48 STAT. 31.  SECTION 8C FIRST
APPEARED IN THE 1935 ACT, WHICH WAS AMENDED AND REENACTED BY THE 1937
ACT, 50 STAT. 246, CITED IN NOTE 15. 

FN23  SEE ALSO H.R. REP. NO. 1241, 74TH CONG., 1ST SESS., PP. 7-11. 
AND SEE DEBATES AT 79 CONG. REC. 9461-63; 9572-73; 9602-04; 11134-41;
AND 13022. 

MR. JUSTICE BLACK, DISSENTING. 

IN THIS CASE THE COURT SETS UP A NEW CONSTITUTIONAL FORMULA FOR
INVALIDATION OF STATE LAWS REGULATING LOCAL PHASES OF INTERSTATE
COMMERCE.  I BELIEVE THE NEW YORK LAW IS INVULNERABLE TO CONSTITUTIONAL
ATTACK UNDER CONSTITUTIONAL RULES WHICH THE MAJORITY OF THIS COURT HAVE
LONG ACCEPTED.  THE NEW FORMULA SUBJECTS STATE REGULATIONS OF LOCAL
BUSINESS ACTIVITIES TO GREATER CONSTITUTIONAL HAZARDS THAN THEY HAVE
EVER HAD TO MEET BEFORE.  THE CONSEQUENCES OF THE NEW FORMULA, AS I
UNDERSTAND IT, WILL NOT MERELY LEAVE A LARGE AREA OF LOCAL BUSINESS
ACTIVITIES FREE FROM STATE REGULATION.  ALL LOCAL ACTIVITIES THAT FALL
WITHIN THE SCOPE OF THIS NEW FORMULA WILL BE FREE FROM ANY REGULATORY
CONTROL WHATEVER.  FOR IT IS INCONCEIVABLE THAT CONGRESS COULD PASS
UNIFORM NATIONAL LEGISLATION CAPABLE OF ADJUSTMENT AND APPLICATION TO
ALL THE LOCAL PHASES OF INTERSTATE ACTIVITIES THAT TAKE PLACE IN THE 48
STATES.  SEE ROBERTSON V. CALIFORNIA, 328 U.S. 440, 449, 459-460.  IT
IS EQUALLY INCONCEIVABLE THAT CONGRESS WOULD ATTEMPT TO CONTROL SUCH
DIVERSE LOCAL ACTIVITIES THROUGH A "SWARM OF STATUTES ONLY LOCALLY
APPLICABLE AND UTTERLY INCONSISTENT."  KIDD V. PEARSON, 128 U.S. 1,
21. 

FIRST.  NEW YORK HAS A COMPREHENSIVE SET OF REGULATIONS TO CONTROL
THE PRODUCTION, DISTRIBUTION AND SALE OF MILK.  THEIR OVER-ALL PURPOSES
ARE TWO:  (1) TO PROMOTE HEALTH BY MAINTAINING AN ADEQUATE SUPPLY AND
AN ORDERLY DISTRIBUTION OF UNCONTAMINATED MILK; (2) TO PROMOTE THE
GENERAL WELFARE BY SAVING FARMER MILK-PRODUCERS FROM IMPOVERISHMENT AND
INSOLVENCY.  THE STATE LEGISLATURE CONCLUDED THAT ACHIEVEMENT OF THESE
GOALS DEMANDED ELIMINATION OF DESTRUCTIVE COMPETITION AMONG MILK
DEALERS.  THE LEGISLATURE BELIEVED THAT WHILE CUTTHROAT COMPETITION
AMONG PURCHASER DEALERS TEMPORARILY RAISES THE PRICE OF FARMERS' MILK,
THE END RESULT OF THE PRACTICE IN NEW YORK HAD BEEN ECONOMIC DISTRESS
FOR THE FARMERS.  AFTER DESTRUCTIVE DEALER COMPETITION HAD DRIVEN
FINANCIALLY WEAK DEALERS FROM THE CONTEST, THE MORE OPULENT SURVIVORS
HAD PUSHED PRODUCERS' PRICES FAR BELOW PRODUCTION COSTS.  NEBBIA V. NEW
YORK, 291 U.S. 502, 515-516, GIVES A GRAPHIC DESCRIPTION OF THE PLIGHT
OF THESE FARMERS PRIOR TO THE ENACTMENT OF THESE REGULATIONS AND MAKES
CLEAR THAT THE CHIEF INCENTIVE FOR THE REGULATIONS WAS THE PROMOTION OF
HEALTH AND THE GENERAL WELFARE BY FINANCIAL REHABILITATION OF THE
FARMERS.  AND DESPITE DUE-PROCESS OBJECTIONS, THE NEBBIA CASE SUSTAINED
THE STATE'S CONSTITUTIONAL POWER TO APPLY ITS LAW TO NEW YORK DEALERS
IN ORDER TO PROMOTE THE HEALTH, ECONOMIC STABILITY AND GENERAL WELFARE
OF THE STATE'S PEOPLE.    THAT PART OF THE REGULATORY PLAN CHALLENGED
HERE BARS ISSUANCE OF LICENSES FOR ADDITIONAL MILK-HANDLING PLANTS IF
NEW PLANTS WOULD "TEND TO DESTRUCTIVE COMPETITION IN A MARKET ALREADY
ADEQUATELY SERVED" OR WOULD BE CONTRARY TO "THE PUBLIC INTEREST."  IN
DETERMINING WHETHER A MILK MARKET IS "ADEQUATELY SERVED," THE STATE
FOLLOWS A PLAN SIMILAR TO THE FEDERAL LAW IN THAT BOTH DIVIDE THE
COUNTRY INTO "MARKETING AREAS."  UNDER THIS PLAN, THE STATE LEGISLATURE
DID NOT ATTEMPT TO PRESCRIBE ONE RULE APPLICABLE THROUGHOUT THE WHOLE
STATE LIMITING THE NUMBER OF MILK DEALERS OR THE NUMBER OF THEIR
PLANTS.  A SINGLE RULE OF THIS KIND WOULD HAVE LACKED THE NECESSARY
FLEXIBILITY TO ACCOMMODATE THE VARYING NEEDS OF MARKETS IN DIFFERENT
PARTS OF THE STATE.  SO A STATE COMMISSIONER WAS AUTHORIZED TO HOLD
HEARINGS AND MAKE FINDINGS OF FACT TO DETERMINE WHETHER EXISTING PLANTS
COULD ADEQUATELY SUPPLY A GIVEN LOCAL PRODUCER'S MARKET OR WHETHER NEW
PLANTS WOULD BRING ABOUT THE DESTRUCTIVE COMPETITION AMONG DEALERS THAT
THE LAW WAS DESIGNED TO PREVENT.  THE COMMISSIONER'S FINDINGS AND
ORDERS WERE SUBJECT TO JUDICIAL REVIEW.  THERE IS NO CHALLENGE TO THE
CONSTITUTIONAL VALIDITY OF THE NEW YORK LAW AS APPLIED TO NEW YORK MILK
DEALERS WHO SELL MILK IN NEW YORK. 

SECOND.  PETITIONER, A MILK DEALER, HAS TWO PLANTS IN NEW YORK.  IT
BUYS MILK, COOLS IT, AND SHIPS IT TO BOSTON.  IT APPLIED TO THE
COMMISSIONER FOR A LICENSE TO OPERATE A THIRD PLANT IN THE SAME LOCAL
MARKET AREA.  AFTER EVIDENCE THE COMMISSIONER FOUND THAT PETITIONER'S
TWO PLANTS PLUS THE OTHERS IN THE VICINITY WERE ADEQUATE OUTLETS FOR
ALL THE MILK PRODUCED IN THAT VICINITY; SOME OF THE DEALERS IN THE AREA
HAD PLANT CAPACITIES ALREADY IN EXCESS OF THE AVAILABLE SUPPLY. 
PETITIONER WAS ONE OF THESE.  FROM THIS THE COMMISSIONER FOUND THAT
MORE PLANTS WOULD BRING ABOUT THE KIND OF DESTRUCTIVE COMPETITION
AGAINST WHICH THE LAW WAS AIMED.  THAT FINDING IS NOT CHALLENGED.  NOR
IS IT CHARGED THAT THE ORDER WAS PROMPTED BY DESIRE TO PREVENT NEW YORK
MILK FROM GOING TO BOSTON. 

THERE WAS A FINDING THAT THE DESTRUCTIVE COMPETITION INCIDENT TO THE
OPERATION OF A NEW PLANT PROBABLY WOULD REDUCE THE VOLUME OF MILK
PURCHASED BY SOME EXISTING DEALERS WHO SUPPLIED MILK TO CERTAIN NEW
YORK CITIES.  ONE OF THESE CITIES HAD RECENTLY SUFFERED A MILK
SHORTAGE.  BUT THIS FINDING NEITHER PROVES NOR IMPLIES THAT
PETITIONER'S APPLICATION WAS DENIED TO KEEP MILK FROM GOING TO BOSTON
OR TO AID LOCAL ECONOMIC INTERESTS.  IN GAUGING THE EFFECT OF AN ORDER
DENYING AN APPLICATION FOR ADDITIONAL MILK PLANTS IN A PURCHASING AREA,
IT SEEMS ESSENTIAL TO INTELLIGENT ADMINISTRATION THAT THE COMMISSIONER
CONSIDER THE AVAILABLE SUPPLY IN THAT AREA IN RELATION TO THE CONSUMER
DEMAND ON DEALERS AS SELLERS.  FOR IF EXISTING AREA PLANTS ALREADY ARE
UNABLE TO BUY ENOUGH MILK TO SUPPLY THEIR CONSUMER DEMANDS, NEW PLANTS,
STRIVING TO BUY A PORTION OF THE SHORT SUPPLY, WILL INEVITABLY
INTENSIFY COMPETITION AMONG PURCHASING DEALERS, THUS BRINGING ONE KIND
OF DESTRUCTIVE COMPETITION THE NEW YORK LAW WAS DESIGNED TO PREVENT. 
CONSEQUENTLY, IN DETERMINING WHETHER NEW PLANTS WOULD TEND TO
DESTRUCTIVE COMPETITION, THE COMMISSIONER CANNOT IGNORE A FUNDAMENTAL
ECONOMIC TRUTH - THE INTERRELATION OF SUPPLY AND DEMAND.  WHETHER THE
NEW PLANTS WOULD SERVICE TROY, BOSTON, OR ELSEWHERE, THE EFFECT NEW
PLANTS WOULD HAVE ON THE AVAILABLE SUPPLY TO EXISTING CONSUMERS IS A
RELEVANT CONSIDERATION.  AND THE NEW YORK LAW REQUIRES THAT
CONSIDERATION WITHOUT REGARD TO THE GEOGRAPHICAL LOCATION OF THE
CONSUMERS. 

HAD A DEALER SUPPLYING NEW YORK CUSTOMERS APPLIED FOR A LICENSE TO
OPERATE A NEW PLANT, THE COMMISSIONER WOULD HAVE BEEN COMPELLED UNDER
THE ACT TO PROTECT PETITIONER'S PLANTS SUPPLYING BOSTON CONSUMERS IN
THE SAME MANNER THAT THIS ORDER WOULD HAVE PROTECTED NEW YORK
CONSUMERS.  IN PROTECTING INTER-OR INTRA-STATE DEALERS FROM DESTRUCTIVE
COMPETITION WHICH WOULD ENDANGER THE MILK FARMERS' PRICE STRUCTURE OR
THE CONTINUED SUPPLY OF HEALTHFUL MILK TO THE CUSTOMERS OF EXISTING
DEALERS, THE COMMISSIONER WOULD BE FAITHFUL TO THE ACT'S AVOWED
PURPOSES.  THE COMMERCE CLAUSE SHOULD NOT BE STRETCHED TO FORBID NEW
YORK'S FAIR ATTEMPT TO PROTECT THE HEALTHFUL MILK SUPPLY OF CONSUMERS,
EVEN THOUGH SOME OF THE CONSUMERS IN THIS CASE HAPPEN TO LIVE IN TROY,
NEW YORK.  AND UNLESS THIS COURT IS WILLING TO CHARGE AN UNFAIRNESS TO
THE COMMISSIONER THAT HAS NOT BEEN CHARGED BY PETITIONER OR SHOWN BY
THE EVIDENCE, THE COURT CANNOT ATTRIBUTE TO THE COMMISSIONER AN
INVIDIOUS PURPOSE TO DISCRIMINATE AGAINST PETITIONER'S INTERSTATE
BUSINESS IN ORDER TO BENEFIT LOCAL INTRASTATE COMPETITORS AND THEIR
LOCAL CONSUMERS.  OF COURSE IF THIS WERE A CASE INVOLVING SUCH
DISCRIMINATION, RELIEF COULD BE OBTAINED UNDER THE PRINCIPLES ANNOUNCED
IN BEST & CO. V. MAXWELL, 311 U.S. 454. 

THE LANGUAGE OF THIS STATE ACT IS NOT DISCRIMINATORY, THE LEGISLATIVE
HISTORY SHOWS IT WAS NOT SO INTENDED, AND THE COMMISSIONER HAS NOT
ADMINISTERED IT WITH A HOSTILE EYE.  THE ACT MUST STAND OR FALL ON THIS
BASIS NOTWITHSTANDING THE OVERTONES OF THE COURT'S OPINION.  IF
PETITIONER AND OTHER INTERSTATE MILK DEALERS ARE TO BE PLACED ABOVE AND
BEYOND THIS LAW, IT MUST BE DONE SOLELY ON THIS COURT'S NEW
CONSTITUTIONAL FORMULA WHICH BARS A STATE FROM PROTECTING ITSELF
AGAINST LOCAL DESTRUCTIVE COMPETITIVE PRACTICES SO FAR AS THEY ARE
INDULGED IN BY DEALERS WHO SHIP THEIR MILK INTO OTHER STATES. 

THIRD.  THE NUMBER OF PLANTS PETITIONER CAN HAVE IN THE NEW YORK
MARKET IS OF CONCERN TO PETITIONER, TO NEW YORK, AND TO THE NATION. 
PETITIONER'S BUSINESS INTEREST, HOWEVER, UNDER THE NEBBIA RULE MUST BE
SUBORDINATED TO THE PUBLIC INTEREST.  NEW YORK'S CONCERN DERIVES FROM
ITS INTEREST IN THE HEALTH AND WELL-BEING OF ITS PEOPLE DEEMED BY THE
LEGISLATURE OF NEW YORK TO BE THREATENED BY COMPETITIVE TRADE PRACTICES
OF DEALERS WHO BUY AND SELL MILK PRODUCED IN THE STATE.  THAT ITS
CONCERN IS GREAT IS MANIFESTED BY THE STATE LAW, ITS BACKGROUND, ITS
PURPOSES, AND ITS ADMINISTRATION.  THE NATIONAL CONCERN, REFLECTED IN
THE COMMERCE CLAUSE, FLOWS FROM FEDERAL SOLICITUDE FOR FREEDOM OF TRADE
AMONG THE STATES.  THAT SOLICITUDE IS GREAT. 

RECONCILIATION OF STATE AND FEDERAL INTERESTS IN REGULATION OF
COMMERCE ALWAYS HAS BEEN A PERPLEXING PROBLEM.  THE CLAIMS OF NEITHER
CAN BE IGNORED IF DUE REGARD BE ACCORDED THE WELFARE OF STATE AND
NATION.  FOR IN THE LONG RUN THE WELFARE OF EACH IS DEPENDENT UPON THE
WELFARE OF BOTH.  INJURY TO COMMERCIAL ACTIVITIES IN THE STATES IS
BOUND TO PRODUCE AN INJURIOUS REACTION ON INTERSTATE COMMERCE, AND VICE
VERSA.  THE MANY LOCAL ACTIVITIES WHICH ARE PARTS OF INTERSTATE
TRANSACTIONS HAVE GIVEN RISE TO MUCH CONFUSION.  THE BASIC PROBLEM HAS
ALWAYS BEEN WHETHER THE STATE OR FEDERAL GOVERNMENT HAS POWER TO
REGULATE SUCH LOCAL ACTIVITIES, WHETHER THE POWER OF EITHER IS
EXCLUSIVE OR CONCURRENT, WHETHER THE STATE HAS POWER TO REGULATE UNTIL
CONGRESS EXERCISES ITS SUPREME POWER, AND THE EXTENT TO WHICH AND THE
CIRCUMSTANCES UNDER WHICH THIS COURT SHOULD INVALIDATE STATE
REGULATIONS IN THE ABSENCE OF AN EXERCISE OF CONGRESSIONAL POWER.  THIS
LAST QUESTION IS THE ONE HERE INVOLVED. 

FOURTH.  GIBBONS V. OGDEN, 9 WHEAT.  1, DECIDED IN 1824, HELD INVALID
A NEW YORK STATUTE REGULATING COMMERCE WHICH CONFLICTED WITH AN ACT OF
CONGRESS.  THE COURT THERE LEFT UNDECIDED THE QUESTION STRONGLY URGED
THAT THE COMMERCE CLAUSE OF ITSELF FORBADE NEW YORK TO REGULATE
COMMERCE.  IN 1847 THIS UNDECIDED QUESTION WAS DISCUSSED BY CHIEF
JUSTICE TANEY.  FN1  HIS VIEW WAS THAT THE COMMERCE CLAUSE OF ITSELF
DID NO MORE THAN GRANT POWER TO CONGRESS TO REGULATE COMMERCE AMONG THE
STATES; THAT UNTIL CONGRESS ACTED STATES COULD REGULATE THE COMMERCE;
AND THAT THIS COURT WAS WITHOUT POWER TO STRIKE DOWN STATE REGULATIONS
UNLESS THEY CONFLICTED WITH A VALID FEDERAL LAW.  THIS THE CHIEF
JUSTICE THOUGHT WAS THE INTENTION OF THE CONSTITUTION'S FRAMERS,
DRAWING HIS INFERENCE OF THEIR INTENT FROM HIS BELIEF THAT THEY KNEW "A
MULTITUDE OF MINOR REGULATIONS MUST BE NECESSARY, WHICH CONGRESS AMID
ITS GREAT CONCERNS COULD NEVER FIND TIME TO CONSIDER AND PROVIDE ...  "
FN2 

IN 1852 THIS COURT REJECTED IN PART THE TANEY INTERPRETATION OF THE
COMMERCE CLAUSE.  COOLEY V. BOARD OF WARDENS, 12 HOW.  299.  THE
OPINION THERE STATED THAT THE COMMERCE CLAUSE PER SE FORBADE STATES TO
REGULATE COMMERCE UNDER SOME CIRCUMSTANCES BUT LEFT THEM FREE TO DO SO
UNDER OTHER CIRCUMSTANCES.  THE DIVIDING LINE WAS NOT PRECISELY DRAWN,
BUT THE COURT OUTLINED BROAD PRINCIPLES TO GUIDE FUTURE DETERMINATIONS
OF THE SIDE OF THE LINE ON WHICH COMMERCIAL TRANSACTIONS WOULD BE HELD
TO FALL.  IN DOING SO, IT APPARENTLY TOOK INTO CONSIDERATION MR. CHIEF
JUSTICE TANEY'S 1847 BELIEF THAT ABSOLUTE PROHIBITION OF ALL STATE
REGULATION OF COMMERCE WOULD CREATE AN AREA IMMUNE FROM ANY REGULATION
AT ALL.  FOR IN THE COOLEY CASE THE COURT HELD AT P. 319 THAT THE
COMMERCE CLAUSE PER SE ONLY PROHIBITED STATE REGULATION OF LOCAL
INTERSTATE COMMERCE ACTIVITIES WHICH "ARE IN THEIR NATURE NATIONAL, OR
ADMIT ONLY OF ONE UNIFORM SYSTEM."  IT WAS ALSO HELD AT P. 320 THAT THE
COMMERCE CLAUSE LEFT STATES FREE TO REGULATE INTERSTATE COMMERCE
ACTIVITIES WHERE DIVERSE CONDITIONS INCIDENT TO DIFFERENT CUSTOMS,
HABITS AND TRADE PRACTICES, COULD BEST BE TREATED AND REGULATED BY
DIFFERENT REGULATIONS "DRAWN FROM LOCAL KNOWLEDGE AND EXPERIENCE, AND
CONFORMED TO LOCAL WANTS."  THUS CAUTIOUSLY DID THE COURT ENTER THIS
NEW FIELD OF JUDICIAL POWER.  IT DECIDED NO MORE THAN THAT THIS COURT
IN PASSING UPON STATE REGULATIONS OF COMMERCE WOULD ALWAYS WEIGH THE
CONFLICTING INTERESTS OF STATE AND NATION.  MOREOVER, IMPLICIT IN THE
RULE, AS SHOWN BY WHAT THE COURT SAID, WAS A DETERMINED PURPOSE NOT TO
LEAVE AREAS IN WHICH INTERSTATE ACTIVITIES COULD BE INSULATED FROM ANY
REGULATION AT ALL. 

FIFTH.  THE BASIC PRINCIPLES OF THE COOLEY RULE HAVE BEEN ENTANGLED
AND SOMETIMES OBSCURED WITH MUCH LANGUAGE.  IN THE MAIN, HOWEVER, THOSE
PRINCIPLES HAVE BEEN THE ASSERTED GROUNDS FOR DETERMINATION OF ALL
COMMERCE CASES DECIDED BY THIS COURT FROM 1852 UNTIL TODAY.  PERTINENT
QUOTATIONS FROM SOME OF THESE CASES APPEAR IN MR. JUSTICE FRANKFURTER'S
DISSENTING OPINION AND HE REFERS TO OTHERS.  MANY OF THE CASES HAVE
USED THE WORDS "RESTRAINTS," "OBSTRUCTIONS," "IN COMMERCE," "ON
COMMERCE," "BURDENS," "DIRECT BURDENS," "UNDUE BURDENS," "UNREASONABLE
BURDENS," "UNFAIR BURDENS," "INCIDENTAL BURDENS," ETC., BUT SUCH WORDS
HAVE ALMOST ALWAYS BEEN USED, AS THE OPINIONS REVEAL, TO AID IN
APPLICATION OF THE COOLEY BALANCE-OF-INTERESTS RULE.  FN3 

THERE HAVE BEEN SOME SPORADIC DEVIATIONS FROM THE COOLEY PRINCIPLE AS
ILLUSTRATED BY DI SANTO V. PENNSYLVANIA, 273 U.S. 34.  THE POWERFUL
DISSENTS OF MR. JUSTICE BRANDEIS AND MR. JUSTICE STONE, CONCURRED IN BY
MR. JUSTICE HOLMES, POINTED OUT THE DI SANTO DEVIATION.  THE NECESSITY
FOR DELICATE ADJUSTMENT OF THE CONFLICTING STATE AND FEDERAL CLAIMS WAS
POINTED OUT.  IT WAS EMPHASIZED THAT DECISION ON SUCH AN ISSUE REQUIRED
A CONSIDERATION OF FACTS SUCH AS THE NATURE OF THE REGULATION, THE
CHARACTER OF THE BUSINESS, THE REGULATION'S ACTUAL EFFECT ON INTERSTATE
COMMERCE.  MR. JUSTICE BRANDEIS POINTED OUT THE DANGERS IN DEVIATING
FROM THESE PRINCIPLES, AND, PERHAPS WITH PROPHETIC INSIGHT AS TO THE
FUTURE FATE OF THE DI SANTO CASE, CITED A LONG LIST OF CASES IN WHICH
SUCH DEVIATIONS HAD REQUIRED THIS COURT LATER TO OVERRULE OR EXPLAIN
AWAY THE PRIOR DEVIATIONS.  P. 43, N. 4.  IN CALIFORNIA V. THOMPSON,
313 U.S. 109, 115-116, THIS COURT EXPLAINED AWAY THE DI SANTO CASE.  IT
COULD NOT STAND, SO SAID THE COURT, BECAUSE IT WAS A DEPARTURE FROM THE
PRINCIPLE THAT HAD BEEN RECOGNIZED EVER SINCE COOLEY V. BOARD OF
WARDENS, SUPRA. 

IN THIS COURT, CHALLENGES TO THE COOLEY RULE ON THE GROUND THAT THE
RULE WAS AN INEFFECTIVE PROTECTOR OF INTERSTATE COMMERCE FROM STATE
REGULATIONS HAVE BEEN CONFINED TO DISSENTS AND CONCURRING OPINIONS. 
FN4  DUCKWORTH V. ARKANSAS, 314 U.S. 390, 400-401; BOB-LO EXCURSION CO.
V. MICHIGAN, 333 U.S. 28, 37-38, 41, 42, 45; INDEPENDENT WAREHOUSES V.
SCHEELE, 331 U.S. 70, 85, 95.  IN THE DUCKWORTH CASE BY APPLICATION OF
THE COOLEY RULE THE MAJORITY OF THIS COURT SUSTAINED A STATE REGULATION
OF INTERSTATE TRANSPORTATION.  A CONCURRING OPINION EXPRESSED THE VIEW
THAT THE COURT'S OPINION WRITTEN BY CHIEF JUSTICE STONE, ROOTED AS IT
WAS IN THE COOLEY PRINCIPLE, "LET COMMERCE STRUGGLE FOR CONGRESSIONAL
ACTION TO MAKE IT FREE," AND EXPRESSED THE WRITER'S UNWILLINGNESS TO
FOLLOW THE COURT'S "TREND"  FN5  BEYOND THE "PLAIN REQUIREMENTS" OF
EXISTING CASES, AT P. 401. 

THE PHILOSOPHY OF THIS DUCKWORTH CONCURRING OPINION WHICH THE COURT
REJECTED, CAN ALONE SUPPORT THE HOLDING AND OPINION TODAY.  THAT
PHILOSOPHY COMMENDS ITSELF TO MANY THOUGHTFUL PEOPLE.  SOME PEOPLE
BELIEVE IN THIS PHILOSOPHY BECAUSE OF FEAR THAT JUDICIAL TOLERATION OF
ANY STATE REGULATIONS OF LOCAL PHASES OF COMMERCE WILL BRING ABOUT WHAT
THEY CALL "BALKANIZATION" OF TRADE IN THE UNITED STATES - TRADE
BARRIERS SO HIGH BETWEEN THE STATES THAT THE STREAM OF INTERSTATE
COMMERCE CANNOT FLOW OVER THEM.  FN6  OTHER PEOPLE BELIEVE IN THIS
PHILOSOPHY BECAUSE OF AN INSTINCTIVE HOSTILITY TO ANY GOVERNMENTAL
REGULATION OF "FREE ENTERPRISE"; THIS GROUP PREFERS A LAISSEZ FAIRE
ECONOMY.  FN7  TO THEM THE SPECTRE OF "BUREAUCRACY" IS MORE FRIGHTENING
THAN "BALKANIZATION." 

THE COOLEY BALANCING-OF-INTERESTS PRINCIPLE WHICH THE COURT ACCEPTED
AND APPLIED IN THE DUCKWORTH CASE IS TODAY SUPPLANTED BY THE PHILOSOPHY
OF THE DUCKWORTH CONCURRING OPINION WHICH THOUGH PRESENTED IN THE
DUCKWORTH CASE GAINED NO ADHERENTS.  FN8  FOR THE NEW YORK STATUTE IS
KILLED BY A MERE AUTOMATIC APPLICATION OF A NEW MECHANISTIC FORMULA. 
THE COURT APPRAISES NOTHING, UNLESS ITS STRETCHING OF THE OLD COMMERCE
CLAUSE INTERPRETATION RESULTS FROM A REAPPRAISAL OF THE POWER AND DUTY
OF THIS COURT UNDER THE COMMERCE CLAUSE.  NUMEROUS CASES, FOR EXAMPLES
PARKER V. BROWN, 317 U.S. 341, AND MILK BOARD V. EISENBERG CO., 306
U.S. 346, WHICH MADE JUDICIAL APPRAISALS UNDER THE COOLEY RULE, ARE
GENTLY LAID TO REST.  THEIR INTERMENT IS TACTFULLY ACCOMPLISHED,
WITHOUT CEREMONY, EULOGY, OR REPORT OF THEIR DEMISE.  THE GROUND
BENEATH THEM HAS BEEN DEFTLY EXCAVATED BY A SOOTHING PROCESS WHICH
LIMITS THEM TO THEIR FACTS, THEIR PRECISE FACTS, THEIR "PLAIN
REQUIREMENTS."  THE VACANCY LEFT BY THE COOLEY PRINCIPLE WILL BE MORE
THAN FILLED, HOWEVER, BY THE NEW FORMULA WHICH WITHOUT BALANCING
INTERESTS, AUTOMATICALLY WILL RELIEVE MANY BUSINESSES FROM STATE
REGULATION.  THIS COURT WILL THEREBY BE RELIEVED OF MUCH TROUBLE IN
ATTEMPTING TO RECONCILE STATE AND FEDERAL INTERESTS.  STATE REGULATORY
AGENCIES TOO WILL BE RELIEVED OF A LARGE SHARE OF THEIR TRADITIONAL
DUTIES WHEN THEY DISCOVER THAT BAD LOCAL BUSINESS PRACTICES ARE NOW
JUDICIALLY IMMUNIZED FROM STATE REGULATION.  BUT IT IS DOUBTFUL IF THE
RELIEF ACCORDED WILL PROMOTE THE WELFARE OF THE STATE OR NATION SINCE
CONGRESS CANNOT POSSIBLY UNDERTAKE THE MONUMENTAL TASK OF SUPPRESSING
ALL PERNICIOUS LOCAL BUSINESS PRACTICES. 

SIXTH.  THE COURT STRONGLY RELIES ON BALDWIN V. SEELIG, 294 U.S.
511.  THE CRUCIAL FACTS OF THAT CASE WERE THESE.  NEW YORK LAW FIXED A
MINIMUM PRICE FOR MILK BOUGHT BY NEW YORK DEALERS FROM NEW YORK
FARMERS.  VERMONT'S LEGISLATIVE POLICY LEFT VERMONT FARMERS AND MILK
DEALERS FREE TO FIX MILK PRICES BY BARGAINING.  SEELIG, A NEW YORK
DEALER, SOLD MILK IN NEW YORK WHICH HAD BEEN BOUGHT FROM VERMONT
FARMERS AT PRICES BELOW THAT FIXED FOR NEW YORK FARMERS BY NEW YORK
LAW.  NEW YORK LAW FORBADE SALE OF SEELIG'S MILK IN NEW YORK BECAUSE
THE VERMONT FARMERS HAD NOT RECEIVED THE NEW YORK FIXED PRICE FOR THEIR
MILK.  NEW YORK'S OBJECT WAS TO SAVE ITS FARMERS FROM COMPETITION WITH
VERMONT MILK.  AND THE COURT SAW THE NEW YORK LAW AS A DISCRIMINATORY
"BARRIER TO TRAFFIC BETWEEN ONE STATE AND ANOTHER AS EFFECTIVE AS IF
CUSTOMS DUTIES, EQUAL TO THE PRICE DIFFERENTIAL, HAD BEEN LAID UPON THE
THING TRANSPORTED."  BALDWIN V. SEELIG, SUPRA, AT 521.  THE EFFECT OF
THE LAW, THEREFORE, WAS PRECISELY THE SAME AS THOUGH IN ORDER TO
PROTECT ITS FARMERS FROM COMPETITION WITH VERMONT MILK, NEW YORK HAD
IMPOSED SUBSTANTIALLY HIGHER TAXES ON SELLERS OF VERMONT PRODUCED
ARTICLES THAN IT IMPOSED ON SELLERS OF NEW YORK PRODUCED ARTICLES. 
UNDER MANY PREVIOUS DECISIONS OF THIS COURT SUCH DISCRIMINATIONS
AGAINST INTERSTATE COMMERCE WERE NOT PERMITTED.  SEE BEST & CO. V.
MAXWELL, 311 U.S. 454. 

EVEN THOUGH THE COURT REGARDED THE BALDWIN V. SEELIG LAW AS
DISCRIMINATORY, OTHER CONSIDERATIONS WERE ADDED TO WEIGHT THE SCALES ON
THE SIDE OF INVALIDATION.  ITS IMPACT ON VERMONT ECONOMY AND VERMONT
LEGISLATIVE POWER WAS WEIGHED.  TO WHATEVER EXTENT IT IS DESIRABLE TO
REFORM THE ECONOMIC STANDARDS OF VERMONT, "THE LEGISLATURE OF VERMONT
AND NOT THAT OF NEW YORK MUST SUPPLY THE FITTING REMEDY."  BALDWIN V.
SEELIG, SUPRA, AT 524.  THIS IS A DUE PROCESS CONCEPT.  FN9  IN
EMPHASIZING THE DUE PROCESS OBJECTIONABLE PHASE OF NEW YORK'S LAW, THE
COURT WAS WELL WITHIN THE COOLEY PHILOSOPHY.  FN10  FURTHERMORE UNDER
THE COOLEY RULE, ASIDE FROM DUE PROCESS, A STATE'S REGULATION THAT
IMMEDIATELY BEARS UPON NOTHING BUT ACTIVITIES WHOLLY WITHIN ITS
BOUNDARIES IS FAR LESS VULNERABLE THAN ONE WHICH CASTS BURDENS ON
ACTIVITIES WITHIN THE BOUNDARIES OF ANOTHER STATE.  FN11 

IT WAS BECAUSE NEW YORK ATTEMPTED TO PROJECT ITS LAW INTO VERMONT
THAT EVEN ITS ADMITTED HEALTH PURPOSE WAS INSUFFICIENT TO OUTWEIGH
VERMONT'S INTEREST IN CONTROLLING ITS OWN LOCAL AFFAIRS.  BALDWIN V.
SEELIG, SUPRA, P. 524.  ADDED TO THIS WAS THE COURT'S APPRAISAL OF THE
LAW AS A PLAIN DISCRIMINATION AGAINST INTERSTATE COMMERCE THAT WOULD
INESCAPABLY ERECT A BARRIER TO SUPPRESS COMPETITIVE SALES OF VERMONT
MILK IN NEW YORK, THUS LEADING TO RETALIATORY "RIVALRIES AND
REPRISALS," AT P. 522.  QUITE DIFFERENTLY HERE NEW YORK HAS NOT
ATTEMPTED TO REGULATE THE PRICE OF MILK IN MASSACHUSETTS OR THE MANNER
IN WHICH IT WILL BE DISTRIBUTED THERE; IT HAS NOT ATTEMPTED TO PUT
PRESSURE ON MASSACHUSETTS TO REFORM ITS ECONOMIC STANDARDS; ITS LAW IS
NOT HOSTILE TO INTERSTATE COMMERCE IN CONCEPTION OR OPERATION; ITS
PURPOSE TO CONSERVE HEALTH AND PROMOTE ECONOMIC STABILITY AMONG NEW
YORK PRODUCERS IS NOT STRETCHED TO THE BREAKING POINT BY AN ARGUMENT
THAT NEW YORK CANNOT SAFELY AID ITS OWN PEOPLE'S HEALTH UNLESS
PERMITTED TO TRESPASS UPON THE POWER OF MASSACHUSETTS TO REGULATE LOCAL
AFFAIRS IN MASSACHUSETTS.  NOR IS THIS NEW YORK LAW, FAIRLY
ADMINISTERED AS IT HAS BEEN, THE KIND THAT BREEDS "RIVALRIES AND
REPRISALS."  THE CIRCUMSTANCES AND CONDITIONS THAT BROUGHT ABOUT
INVALIDATION OF THE LAW CONSIDERED IN THE BALDWIN CASE ARE TOO
DIFFERENT FROM THOSE HERE CONSIDERED TO REST TODAY'S HOLDING ON THE
BALDWIN DECISION. 

SEVENTH.  MILK BOARD V. EISENBERG CO., 306 U.S. 346, WOULD CONTROL
THIS CASE BUT FOR THE COURT'S LIMITING THAT CASE TO ITS PRECISE FACTS. 
THAT LAW REQUIRED A STATE LICENSE OF ALL PERSONS WHO HANDLED OR
PURCHASED MILK WITHIN THE COMMONWEALTH FOR SALE WITHIN OR WITHOUT THE
COMMONWEALTH.  IT REQUIRED ALL DEALERS, INTERSTATE AND INTRASTATE, TO
KEEP RECORDS AND TO MAKE BONDS.  DEALERS WHO SOLD THEIR PRODUCTS WITHIN
OR WITHOUT THE STATE WERE REQUIRED TO PAY STATE-FIXED PRICES.  THE
STATE GRANTED OR DENIED LICENSES ON THE ACT'S ENUMERATED TERMS AND
SUSPENDED OR REVOKED THEM FOR CAUSE.  AVOWED PURPOSES OF THE
PENNSYLVANIA LAW WERE IDENTICAL WITH THE STATED PURPOSES OF THE NEW
YORK LAW.  LIKE NEW YORK THE METHOD CHOSEN TO ACHIEVE THESE PURPOSES
WAS PROTECTION OF MILK FARMERS FROM WHAT WERE DEEMED TO BE THE EVIL
CONSEQUENCES OF CUTTHROAT COMPETITION.  THE LAW WAS APPLIED AGAINST
INTERSTATE DEALERS IN PENNSYLVANIA, WHO LIKE PETITIONER IN NEW YORK,
BOUGHT, WEIGHED, TESTED, AND COOLED MILK IN PENNSYLVANIA PREPARATORY TO
SHIPMENT OUTSIDE THE STATE. 

THE EISENBERG CASE THUS SUSTAINED THE POWER OF A STATE TO REQUIRE
LICENSES FROM INTERSTATE DEALERS AND TO IMPOSE CONDITIONS ON THEIR
INTERSTATE COMMERCE TRANSACTIONS IN ORDER TO EFFECTUATE LEGITIMATE
STATE POLICIES.  AND THE CONDITIONS PENNSYLVANIA IMPOSED WERE
BURDENSOME, AS THIS COURT RECOGNIZED.  THEY ERECTED OBSTACLES WHICH
WERE BOUND TO LIMIT THE NUMBER OF INTERSTATE DEALERS.  THE LIMITED
NUMBER OF INTERSTATE DEALERS WHO COULD GET AND HOLD STATE LICENSES WERE
COMPELLED TO INCUR EXPENSES THAT ADDED TO THE COSTS OF STATE-FIXED MILK
PRICES THEY WERE REQUIRED TO PAY AS A CONDITION PRECEDENT TO THE
STATE'S ALLOWING THEM TO BUY AND SHIP OUT ANY MILK AT ALL. 
PENNSYLVANIA IMPOSED THESE BURDENS ON INTERSTATE COMMERCE TO PROMOTE
HEALTH AND TO PROTECT ITS FARMERS FROM THE CONSEQUENCES OF DESTRUCTIVE
COMPETITION AMONG DEALERS.  THIS NEW YORK LAW WAS DESIGNED TO PROMOTE
HEALTH AND TO PROTECT NEW YORK FARMERS FROM DESTRUCTIVE COMPETITION IN
NEW YORK. 

IT REQUIRES MORE THAN INVOCATION OF THE SPECTRE OF "BALKANIZATION"
AND EULOGY OF THE CONSTITUTION'S FRAMERS TO PROVE THAT THERE IS A
GNAT'S HEEL DIFFERENCE IN THE BURDENS IMPOSED ON COMMERCE BY THE TWO
LAWS.  IT CANNOT EVEN BE SAID THAT ONE REGULATION WAS "ON COMMERCE" AND
ONE WAS NOT (WHATEVER "ON COMMERCE" MEANS), FOR BOTH AFFECTED THE
CAPACITY OF DEALERS TO BUY MILK FOR INTERSTATE SALES.  THERE IS THIS
DIFFERENCE.  THE HANDICAP OF STATE-FIXED HIGH-PRICED MILK, BIG BONDS,
AND LARGE BOOK-KEEPING EXPENSES WOULD PROBABLY REDUCE THE VOLUME OF
INTERSTATE SHIPMENTS FAR MORE THAN THE NEW YORK LIMITATION OF NEW
PLANTS IN PARTICULAR LOCALITIES.  TRUE, THIS NEW YORK REGULATION MIGHT
REDUCE THE VOLUME OF MILK THIS PARTICULAR DEALER MIGHT GET AND SHIP. 
BUT THE COMMERCE CLAUSE WAS NOT WRITTEN TO LET ONE PARTICULAR DEALER'S
INTERESTS DESTROY A STATE'S ORDERLY MARKETING SYSTEM. 

THERE HAS CERTAINLY BEEN NO PROOF HERE THAT NEW YORK IS WRONG IN
BELIEVING THAT ITS LAW WILL REHABILITATE FARMERS, INDUCE MORE OF THEM
TO GET AND STAY IN THE MILK BUSINESS, AND THUS PROVIDE A GREATER NEW
YORK PRODUCTION OF BETTER MILK AVAILABLE FOR SALE BOTH IN AND OUT OF
NEW YORK.  SHOULD THIS RESULT FOLLOW, INTERSTATE COMMERCE WILL NOT BE
BURDENED, IT WILL BE HELPED.  AND IT SEEMS TO ME THAT HERE AS IN THE
EISENBERG CASE, THIS COURT SHOULD NOT PIT ITS LEGAL JUDGMENT AGAINST A
LEGISLATIVE JUDGMENT THAT IS IN HARMONY WITH THE VIEWS OF PERSONS WHO
HAVE DEVOTED THEIR LIVES TO A PRACTICAL STUDY OF THE MILK PROBLEM. 

EIGHTH.  I THINK THAT CONGRESS AND ITS AUTHORIZED FEDERAL AGENCY HAVE
KNOWINGLY ACQUIESCED IN, IF THEY HAVE NOT ACTUALLY ENCOURAGED AND
APPROVED, ENACTMENT AND ENFORCEMENT OF THE NEW YORK LAW HERE HELD
INVALID.  THE NEW YORK LAW AUTHORIZES ITS ADMINISTRATOR TO ACT IN
COOPERATION WITH FEDERAL MILK-CONTROL AUTHORITIES AND AFTER
CONSULTATION TO MAKE SUCH SUPPLEMENTARY ORDERS AS MIGHT BE HELPFUL IN
ACCOMPLISHING THE JOINT STATE-FEDERAL PROGRAM.  SO ALSO, 7 U.S.C. SEC.
610(I) AUTHORIZES AND DIRECTS THE SECRETARY OF AGRICULTURE TO CONFER
AND HOLD JOINT HEARINGS WITH THE AUTHORITIES OF ANY STATE IN ORDER TO
"OBTAIN UNIFORMITY IN THE FORMULATION, ADMINISTRATION, AND ENFORCEMENT
OF FEDERAL AND STATE PROGRAMS RELATING TO THE REGULATION OF THE
HANDLING OF AGRICULTURAL COMMODITIES  ...  "  THE SECTION FURTHER
AUTHORIZES THE SECRETARY TO "ISSUE ORDERS ...  COMPLEMENTARY TO ORDERS
OR OTHER REGULATIONS ISSUED BY SUCH (STATE) AUTHORITIES; AND TO MAKE
AVAILABLE TO SUCH STATE AUTHORITIES THE RECORDS AND FACILITIES OF THE
DEPARTMENT OF AGRICULTURE ...  " 

IN THE FOREGOING PROVISIONS CONGRESS MANIFESTED ITS PURPOSE TO
SUBJECT THE MILK INDUSTRY TO TWO COOPERATING AUTHORITIES:  (1) STATE
LEGISLATURES AND THEIR SELECTED ADMINISTRATIVE AUTHORITIES, AND (2) THE
SECRETARY OF AGRICULTURE.  CONGRESS DID FAR MORE THAN DIRECT A FORMAL,
POLITE COOPERATION BETWEEN NEW YORK AND THE SECRETARY OF AGRICULTURE. 
RECOGNIZING THE COMPELLING NECESSITY FOR A STATE-FEDERAL INTEGRATED
REGULATORY SYSTEM FOR THE MILK INDUSTRY, CONGRESS WAS CAREFUL TO LEAVE
THE DOOR OPEN FOR THE SECRETARY OF AGRICULTURE AND STATE AUTHORITIES
WORKING TOGETHER TO FORMULATE MUTUALLY COMPLEMENTARY ORDERS IN THE
FIELD.  THESE COMPLEMENTARY STATE-FEDERAL LAWS AND ORDERS WERE TO BE
AIMED AT PRECISELY THE SAME EVILS BELIEVED TO HAVE BEEN GENERATED BY
CHAOTIC COMPETITIVE CONDITIONS IN THE MILK INDUSTRY.  THE OBJECTIVE OF
BOTH LAWS WAS TO HELP IMPOVERISHED FARMERS.  48 STAT. 31, 7 U.S.C. SEC.
601. 

THIS RECORD DOES NOT REVEAL THE EXTENT TO WHICH THERE WAS STATE
FEDERAL COOPERATION IN CONNECTION WITH ENACTMENT AND ENFORCEMENT OF THE
NEW YORK LAW HERE INVOLVED.  ABSENCE OF A FULL SHOWING OF SUCH
COOPERATION IS DOUBTLESS DUE TO THE FAILURE OF THE PETITIONER TO RAISE
ANY COMMERCE QUESTIONS IN THE HEARING BEFORE THE NEW YORK
COMMISSIONER.  THIS IN ITSELF SHOULD BE ENOUGH TO CAUSE THIS COURT, AT
THE VERY LEAST, TO FOLLOW MR. JUSTICE FRANKFURTER'S SUGGESTION AND
REMAND THE CASE.  THIS WOULD AFFORD THE STATE OPPORTUNITY TO DEVELOP
THE FACTS CONCERNING FEDERAL AND STATE COOPERATION.  NEW YORK'S LAW
SHOULD NOT BE CONDEMNED ON THE BASIS OF ABSTRACT RHETORIC ABOUT THE
"FATHERS" AND THE COMMERCE CLAUSE.  SURELY A STATE IS STILL ENTITLED TO
PRESENT ITS SIDE OF A CONSTITUTIONAL CONTROVERSY, THOUGH PERHAPS
TODAY'S NEW RULE MAKES IT AN EXERCISE IN FUTILITY. 

NEW YORK HAS PRESENTED SOME EVIDENCE IN ITS BRIEF OF SUCH STATE
FEDERAL COOPERATION.  WITHOUT SUCH SHOWING WE SHOULD ASSUME THAT THE
SECRETARY HAS FOLLOWED CONGRESSIONAL DIRECTIONS.  IF SUCH AN ASSUMPTION
BE NOT MADE WE CANNOT IGNORE THE ACTION OF CONGRESS IN SELECTING THE
SECRETARY OF AGRICULTURE TO PROTECT INTERSTATE COMMERCE IN MILK. 
CONGRESS HAS EVEN GIVEN HIM POWER TO LIMIT MILK SHIPMENTS AS BETWEEN
DIFFERENT FEDERAL MARKETING AREAS.  FN12  THIS IS HARDLY CONSISTENT
WITH A CONGRESSIONAL PURPOSE TO DENY THE SECRETARY POWER TO APPROVE
THIS STATE REGULATION AND ORDER COMPLEMENTARY TO HIS OWN BASIC
PROGRAM.  AND HERE THERE IS NO EVIDENCE WHATEVER TO SHOW THAT FAIR
ENFORCEMENT OF THE NEW YORK LAW WOULD LIMIT THE TOTAL VOLUME OF NEW
YORK MILK AVAILABLE FOR SHIPMENT INTO OTHER STATES.  THE BASIC PURPOSE
OF THE NEW YORK LAW LIKE THAT OF THE FEDERAL LAW WAS TO PROTECT
PRODUCERS FROM LOW PRICES ON THE THEORY THAT THIS PROTECTION WOULD
INSURE AN ADEQUATE MILK SUPPLY FOR INTER- AS WELL AS INTRA-STATE
SHIPMENTS. 

FROM THE FOREGOING, IT SEEMS TO ME THAT THE COURT NOW STEPS IN WHERE
CONGRESS WANTED IT TO STAY OUT.  THE COURT PUTS ITSELF IN THE POSITION
OF GUARDIAN OF INTERSTATE TRADE IN THE MILK INDUSTRY.  CONGRESS, WITH
FULL CONSTITUTIONAL POWER TO DO SO, SELECTED THE SECRETARY OF
AGRICULTURE TO DO THIS JOB.  MAYBE THIS COURT WOULD BE A BETTER
GUARDIAN, BUT IT MAY BE DOUBTED THAT AUTHORITY FOR THE COURT TO
UNDERTAKE THE TASK CAN BE FOUND IN THE CONSTITUTION - EVEN IN ITS
"GREAT SILENCES."  AT ANY RATE, I HAD SUPPOSED THAT THIS COURT WOULD
NOT FIND CONFLICT WHERE CONGRESS EXPLICITLY HAS COMMANDED COOPERATION. 
FN13 

THE SOLE IMMEDIATE RESULT OF TODAY'S HOLDING IS THAT PETITIONER WILL
BE ALLOWED TO OPERATE A NEW MILK PLANT IN NEW YORK.  THIS CONSEQUENCE
STANDING ALONE IS OF NO GREAT IMPORTANCE.  BUT THERE ARE OTHER
CONSEQUENCES OF IMPORTANCE.  IT IS ALWAYS A SERIOUS THING FOR THIS
COURT TO STRIKE DOWN A STATEWIDE LAW.  IT IS MORE SERIOUS WHEN THE
STATE LAW FALLS UNDER A NEW RULE WHICH WILL INESCAPABLY NARROW THE AREA
IN WHICH STATES CAN REGULATE AND CONTROL LOCAL BUSINESS PRACTICES FOUND
INIMICAL TO THE PUBLIC WELFARE.  THE GRAVITY OF STRIKING DOWN STATE
REGULATIONS IS IMMEASURABLY INCREASED WHEN IT RESULTS AS HERE IN
LEAVING A NO-MAN'S LAND IMMUNE FROM ANY EFFECTIVE REGULATION WHATEVER. 
IT IS DANGEROUS TO ASSUME THAT THE AGGRESSIVE CUPIDITY OF SOME NEED
NEVER BE CHECKED BY GOVERNMENT IN THE INTEREST OF ALL. 

THE JUDICIALLY DIRECTED MARCH OF THE DUE PROCESS PHILOSOPHY AS AN
EMANCIPATOR OF BUSINESS FROM REGULATION APPEARED ARRESTED A FEW YEARS
AGO.  THAT APPEARANCE WAS ILLUSORY.  THAT PHILOSOPHY CONTINUES ITS
MARCH.  THE DUE PROCESS CLAUSE AND COMMERCE CLAUSE HAVE BEEN USED LIKE
SIAMESE TWINS IN A NEVER-ENDING STREAM OF CHALLENGES TO GOVERNMENT
REGULATION.  SEE FOR EXAMPLE, PACIFIC TEL. CO. V. TAX COMM'N, 297 U.S.
403, 420.  THE REACH OF ONE TWIN MAY APPEAR TO BE LONGER THAN THAT OF
THE OTHER, BUT EITHER CAN EASILY BE TURNED TO REMEDY THIS APPARENT
HANDICAP.    BOTH THE COMMERCE AND DUE PROCESS CLAUSES SERVE HIGH
PURPOSES WHEN CONFINED WITHIN THEIR PROPER SCOPE.  BUT A STRETCHING OF
EITHER OUTSIDE ITS SPHERE CAN PARALYZE THE LEGISLATIVE PROCESS,
RENDERING THE PEOPLE'S LEGISLATIVE REPRESENTATIVES IMPOTENT TO PERFORM
THEIR DUTY OF PROVIDING APPROPRIATE RULES TO GOVERN THIS DYNAMIC
CIVILIZATION.  BOTH CLAUSES EASILY LEND THEMSELVES TO INORDINATE
EXPANSIONS OF THIS COURT'S POWER AT THE EXPENSE OF LEGISLATIVE POWER. 
FN14  FOR UNDER THE PREVAILING DUE PROCESS RULE, APPEALS CAN BE MADE TO
THE "FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE" WHICH OUR "FATHERS"
WISHED TO PRESERVE.  IN COMMERCE CLAUSE CASES REFERENCE CAN
APPROPRIATELY BE MADE TO THE FAR-SEEING WISDOM OF THE "FATHERS" IN
GUARDING AGAINST COMMERCIAL AND EVEN SHOOTING WARS AMONG THE STATES. 
SUCH ARGUMENTS HAVE STRONG EMOTIONAL APPEALS AND WHEN SKILLFULLY
UTILIZED THEY SOMETIMES OBSCURE THE VISION. 

THE BASIC QUESTION HERE IS NOT THE GREATNESS OF THE COMMERCE CLAUSE
CONCEPT, BUT WHETHER ALL LOCAL PHASES OF INTERSTATE BUSINESS ARE TO BE
JUDICIALLY IMMUNIZED FROM STATE LAWS AGAINST DESTRUCTIVE COMPETITIVE
BUSINESS PRACTICES SUCH AS THOSE PROHIBITED BY NEW YORK'S LAW.  OF
COURSE, THERE REMAINS THE BARE POSSIBILITY CONGRESS MIGHT ATTEMPT TO
FEDERALIZE ALL SUCH LOCAL BUSINESS ACTIVITIES IN THE FORTY-EIGHT
STATES.  WHILE I HAVE DOUBT ABOUT THE WISDOM OF THIS NEW YORK LAW, I DO
NOT CONCEIVE IT TO BE THE FUNCTION OF THIS COURT TO REVISE THAT STATE'S
ECONOMIC JUDGMENTS.  ANY DOUBT I MAY HAVE CONCERNING THE WISDOM OF NEW
YORK'S LAW IS FAR LESS, HOWEVER, THAN IS MY SKEPTICISM CONCERNING THE
ABILITY OF THE FEDERAL GOVERNMENT TO REACH OUT AND EFFECTIVELY REGULATE
ALL THE LOCAL BUSINESS ACTIVITIES IN THE FORTY-EIGHT STATES. 

I WOULD LEAVE NEW YORK'S LAW ALONE. 

FN1  THE LICENSE CASES, 5 HOW.  504, 578-579.  AND SEE FRANKFURTER,
THE COMMERCE CLAUSE, 50-58(1937). 

FN2  STATE LEGISLATION WHICH PATENTLY DISCRIMINATES AGAINST
INTERSTATE COMMERCE HAS LONG BEEN HELD TO CONFLICT WITH THE COMMERCE
CLAUSE ITSELF.  THE WRITER HAS ACQUIESCED IN THIS INTERPRETATION, ADAMS
MFG. CO. V. STOREN, 304 U.S. 307, 331-332, ALTHOUGH AGREEING WITH THE
VIEWS OF CHIEF JUSTICE TANEY THAT THE COMMERCE CLAUSE WAS NOT INTENDED
TO GRANT COURTS POWER TO REGULATE COMMERCE EVEN TO THIS EXTENT.  THE
EQUAL PROTECTION CLAUSE WOULD SEEM TO ME A MORE APPROPRIATE SOURCE OF
JUDICIAL POWER IN RESPECT TO SUCH DISCRIMINATORY LAWS. 

FN3  DOWLING, INTERSTATE COMMERCE AND STATE POWER, 27 VA. L. REV.
1(1940); AND SEE FOR ILLUSTRATION SOUTHERN PACIFIC CO. V. ARIZONA, 325
U.S. 761, 768-769; UNITED STATES V. UNDERWRITERS ASSN., 322 U.S. 533,
547-549; CLOVERLEAF CO. V. PATTERSON, 315 U.S. 148, 154-155; CALIFORNIA
V. THOMPSON, 313 U.S. 109, 113; MILK BOARD V. EISENBERG CO., 306 U.S.
346; S.C. HWY.  DEPT.  V. BARNWELL BROS., 303 U.S. 177, 184-191;
HARTFORD INDEMNITY CO. V. ILLINOIS, 298 U.S. 155; KIDD V. PEARSON, 128
U.S. 1.  AND SEE CASES COLLECTED BY MR. JUSTICE BRANDEIS, IN HIS
DISSENTING OPINION IN DI SANTO V. PENNSYLVANIA, 273 U.S. 34, 39-40. 

FN4  THE WRITER'S VIEW HAS BEEN THAT THE COOLEY RULE RESULTED IN THIS
COURT'S INVALIDATING STATE STATUTES THAT SHOULD BE LEFT OPERATIVE
UNLESS CONGRESS SHOULD STRIKE THEM DOWN.  SEE DISSENTING OPINION IN
SOUTHERN PAC. CO. V. ARIZONA, 325 U.S. 761, 784-796.  BUT SINCE MY
VIEWS WERE REJECTED, I JOINED IN DISPOSITION OF MORGAN V. VIRGINIA, 328
U.S. 373, 386-388, BY APPLICATION OF THE COOLEY RULE. 

FN5  DOWLING, INTERSTATE COMMERCE AND STATE POWER, 27 VA. L. REV.
1(1940); BRADEN, UMPIRE TO THE FEDERAL SYSTEM, 10 U. OF CHI.  L. REV.
27(1942). 

FN6  BANE, INTERSTATE TRADE BARRIERS, 16 IND. L.J. 121(1940); AND SEE
THE COLLECTION OF ARTICLES ON THE SUBJECT OF TRADE BARRIERS IN 9 GEO.
WASH. L. REV. 755(1941). 

FN7 MELDER, THE ECONOMICS OF TRADE BARRIERS, 16 IND. L.J. 127,
131(1940); REYNOLDS, THE DISTRIBUTION OF POWER TO REGULATE INTERSTATE
CARRIERS BETWEEN THE NATION AND THE STATES, 379(1928). 

FN8  BARNETT, INTERSTATE COMMERCE - STATE CONTROL, 21 ORE.  L. REV.
385, 391-392(1942); NOTE, 26 MINN. L. REV. 654, 655(1942). 

FN9  ALLGEYER V. LOUISIANA, 165 U.S. 578; CF. HOOPESTON CO. V.
CULLEN, 318 U.S. 313, 318-319; HARTFORD IND. CO. V. DELTA CO., 292 U.S.
143, 149-150. 

FN10  MORGAN V. VIRGINIA, 328 U.S. 373, 386; AND COMPARE DISSENTING
OPINION AT PP. 391, 394; BOB-LO EXCURSION CO. V. MICHIGAN, 333 U.S. 28,
37, N. 16, 40, 41-42. 

FN11  SOUTHERN PAC. CO. V. ARIZONA, 325 U.S. 761, 767-768, N. 2; S.C.
HWY.  DEPT.  V. BARNWELL BROS., 303 U.S. 177, 184-186. 

FN12  7 U.S.C. SEC. 608C (5)(G).  THIS SECTION RESTRICTS THE
SECRETARY OF AGRICULTURE'S POWER IN TWO RESPECTS:  (1) IT FORBIDS HIM
TO "PROHIBIT" SHIPMENT OF "MILK" FROM ONE FEDERAL MARKETING AREA TO
ANOTHER.  (2) IT FORBIDS HIM TO "LIMIT" MARKET-TO-MARKET SHIPMENT OF
"MILK PRODUCTS."  THE CHAIRMAN OF THE COMMITTEE IN CHARGE OF THE ACT IN
WHICH THIS PROVISION APPEARED EXPLAINED TO THE HOUSE THAT A FAILURE TO
GRANT THE SECRETARY POWER TO "LIMIT" MILK SHIPMENTS "WOULD ABSOLUTELY
WRECK THE WHOLE MILK PROGRAM."  79 CONG. REC. 9572-9573.  SEE ALSO 79
CONG. REC. 13022, 13023; BAILEY FARM DAIRY CO. V. ANDERSON, 157 F.2D 87
96; BAILEY FARM DAIRY CO. V. JONES, 61 F.SUPP.  209, 221-224. 

FN13  UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, 209; PARKER V.
BROWN, 317 U.S. 341; TOWNSEND V. YEOMANS, 301 U.S. 441, 454; RICE V.
BD. OF TRADE, 331 U.S. 247, 255; PRUDENTIAL INS. CO. V. BENJAMIN, 328
U.S. 408, 433-436. 

FN14  OTHER CONSTITUTIONAL PROVISIONS WITH VAGUE CONTOURS ARE
AVAILABLE AS INSTRUMENTS FOR THE JUDICIARY TO PROTECT BUSINESS FROM
LEGISLATIVE REGULATION.  APPEALING PHASES OF THESE VAGUE CONTOUR
PROVISIONS CAN BE JUDICIALLY INTEGRATED TO PROVIDE A VARIETY OF
TECHNIQUES TO ACCOMPLISH A SINGLE PURPOSE, THE PROTECTION OF BUSINESS
AGAINST LEGISLATIVE REGULATIONS OBNOXIOUS TO COURTS.  UNDER SUCH A
CONSTITUTIONAL PHILOSOPHY COURTS CAN INVALIDATE BUSINESS REGULATIONS ON
SUBSTANTIVE GROUNDS OR THEY CAN PUT OBSTACLES IN THE PATH OF
ENFORCEMENT MAKING IT IMPOSSIBLE TO SUPPRESS BUSINESS PRACTICES
OUTLAWED BY VALID LEGISLATION. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE RUTLEDGE JOINS,
DISSENTING. 

IF THE COURT'S OPINION HAS MEANING BEYOND DECIDING THIS CASE IN
ISOLATION, ITS EFFECT IS TO HOLD THAT NO MATTER HOW IMPORTANT TO THE
INTERNAL ECONOMY OF A STATE MAY BE THE PREVENTION OF DESTRUCTIVE
COMPETITION, AND NO MATTER HOW UNIMPORTANT THE INTERSTATE COMMERCE
AFFECTED, A STATE CANNOT AS A MEANS OF PREVENTING SUCH COMPETITION DENY
AN APPLICANT ACCESS TO A MARKET WITHIN THE STATE IF THAT APPLICANT
HAPPENS TO INTEND THE OUT-OF-STATE SHIPMENT OF THE PRODUCT THAT HE
BUYS.  I FEEL CONSTRAINED TO DISSENT BECAUSE I CANNOT AGREE IN TREATING
WHAT IS ESSENTIALLY A PROBLEM OF STRIKING A BALANCE BETWEEN COMPETING
INTERESTS AS AN EXERCISE IN ABSOLUTES.  NOR DOES IT SEEM TO ME THAT
SUCH A PROBLEM SHOULD BE DISPOSED OF ON A RECORD FROM WHICH WE CANNOT
TELL WHAT WEIGHTS TO PUT IN WHICH SIDE OF THE SCALES. 

IN THE INTEREST OF CLARITY, THE CONTROLLING FACTS IN THIS CASE MAY
THUS BE FAIRLY SUMMARIZED. 

HOOD, THE PETITIONER, IS A MASSACHUSETTS CORPORATION ENGAGED IN
SUPPLYING THE BOSTON MARKET WITH FLUID MILK.  IN NEW YORK STATE, ON THE
BORDER OF VERMONT AND MASSACHUSETTS, IT OPERATES TWO MILK-RECEIVING
PLANTS TO WHICH MILK IS DELIVERED BY LOCAL PRODUCERS AND WHENCE IT IS
SHIPPED TO BOSTON WITHOUT PROCESSING.  THESE TWO PLANTS - AT EAGLE
BRIDGE AND SALEM - ARE QUITE CLOSE TOGETHER.  ON JANUARY 30, 1946, HOOD
APPLIED TO THE COMMISSIONER OF AGRICULTURE AND MARKETS OF NEW YORK FOR
AN EXTENSION OF ITS NEW YORK LICENSE TO PURCHASE MILK WHICH WOULD
PERMIT IT TO OPERATE AN ADDITIONAL RECEIVING PLANT AT GREENWICH, NEW
YORK.  GREENWICH IS TEN MILES FROM SALEM AND TWELVE MILES FROM EAGLE
BRIDGE.  HOOD PROPOSED TO DIVERT TO THE PLANT AT GREENWICH MILK
DELIVERIES OF PRODUCERS LIVING IN THAT VICINITY WHO WERE THEN
DELIVERING TO ITS MORE DISTANT PLANTS AT EAGLE BRIDGE AND SALEM AND TO
TAKE ON AT GREENWICH TWENTY OR THIRTY ADDITIONAL PRODUCERS THEN
DELIVERING TO COMPETING DEALERS IN THE VICINITY OF GREENWICH. 

THE COMMISSIONER OF AGRICULTURE AND MARKETS DENIED HOOD'S APPLICATION
FOR EXTENSION OF ITS LICENSE.  IN SO DOING, IT RESTED ITS DECISION UPON
THE FOLLOWING "CONCLUSIONS": 

"IF APPLICANT IS PERMITTED TO EQUIP AND OPERATE ANOTHER MILK PLANT IN
THIS TERRITORY, AND TO TAKE ON PRODUCERS NOW DELIVERING TO PLANTS OTHER
THAN THOSE WHICH IT OPERATES, IT WILL TEND TO REDUCE THE VOLUME OF MILK
RECEIVED AT THE PLANTS WHICH LOSE THOSE PRODUCERS, AND WILL TEND TO
INCREASE THE COST OF HANDLING MILK IN THOSE PLANTS. 

"IF APPLICANT TAKES PRODUCERS NOW DELIVERING MILK TO LOCAL MARKETS
SUCH AS TROY, IT WILL HAVE A TENDENCY TO DEPRIVE SUCH MARKETS OF A
SUPPLY NEEDED DURING THE SHORT SEASON.  ... 

"THE ISSUANCE OF A LICENSE TO APPLICANT WHICH WOULD PERMIT IT TO
OPERATE AN ADDITIONAL PLANT, WOULD TEND TO A DESTRUCTIVE COMPETITION IN
A MARKET ALREADY ADEQUATELY SERVED, AND WOULD NOT BE IN THE PUBLIC
INTEREST." 

HOOD INSTITUTED PROCEEDINGS IN THE SUPREME COURT OF NEW YORK TO
REVIEW THE ORDER WHICH WERE TRANSFERRED WITHOUT HEARING TO THE
APPELLATE DIVISION.  THE APPELLATE DIVISION SUSTAINED THE
COMMISSIONER'S ACTION IN A PER CURIAM OPINION, AND LEAVE TO APPEAL TO
THE COURT OF APPEALS WAS GRANTED.  THAT COURT CONSIDERED HOOD'S CLAIM
THAT THE ORDER VIOLATED THE COMMERCE CLAUSE AND DENIED IT ON THE GROUND
THAT "ANY INTERFERENCE WITH THE FREE FLOW OF INTERSTATE COMMERCE WAS
INCIDENTAL ONLY."  297 N.Y. 209, 215, 78 N.E.2D 476, 478-79. 

SOME OF THE PRINCIPLES RELEVANT TO DECISION OF THIS CASE ARE SETTLED
BEYOND DISPUTE.  ONE OF THESE IS THAT THE PREVENTION OF DESTRUCTIVE
COMPETITION IS A PERMISSIBLE EXERCISE OF THE POLICE POWER.  NEBBIA V.
NEW YORK, 291 U.S. 502; UNITED STATES V. ROCK ROYAL CO-OPERATIVE, 307
U.S. 533; SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381, 395.  ANOTHER IS
THAT A STATE IS NOT BARRED FROM LICENSING AN ACTIVITY MERELY BECAUSE IT
IS INTERSTATE COMMERCE.  FN1  EVEN MORE BASIC IS THE PRINCIPLE THAT AS
TO MATTERS WHICH DO NOT DEMAND THAT REGULATION BE UNIFORMLY PRESENT OR
UNIFORMLY ABSENT, SEE COOLEY V. BOARD OF WARDENS, 12 HOW.  299, THE
STATE MAY IMPOSE ITS OWN REQUIREMENTS "EVEN THOUGH THEY MATERIALLY
INTERFERE WITH INTERSTATE COMMERCE."  SOUTH CAROLINA STATE HIGHWAY
DEPT. V. BARNWELL BROS., 303 U.S. 177, 188.  AND ONLY RECENTLY, BE IT
NOTED, THIS COURT HAS CHARACTERIZED THE BUYING OF MILK FOR OUT-OF-STATE
SHIPMENT AS AN "ESSENTIALLY LOCAL" BUSINESS.  MILK CONTROL BOARD V.
EISENBERG FARM PRODUCTS, 306 U.S. 346, 352. 

BEHIND THE DISTINCTION BETWEEN "SUBSTANTIAL" AND "INCIDENTAL" BURDENS
UPON INTERSTATE COMMERCE IS A RECOGNITION THAT, IN THE ABSENCE OF
FEDERAL REGULATION, IT IS SOMETIMES - OF COURSE NOT ALWAYS - OF GREATER
IMPORTANCE THAT LOCAL INTERESTS BE PROTECTED THAN THAT INTERSTATE
COMMERCE BE NOT TOUCHED. 

"WHEN CONGRESS HAS NOT EXERTED ITS POWER UNDER THE COMMERCE CLAUSE,
AND STATE REGULATION OF MATTERS OF LOCAL CONCERN IS SO RELATED TO
INTERSTATE COMMERCE THAT IT ALSO OPERATES AS A REGULATION OF THAT
COMMERCE, THE RECONCILIATION OF THE POWER THUS GRANTED WITH THAT
RESERVED TO THE STATE IS TO BE ATTAINED BY THE ACCOMMODATION OF THE
COMPETING DEMANDS OF THE STATE AND NATIONAL INTERESTS INVOLVED." 
PARKER V. BROWN, 317 U.S. 341, 362. 

"BUT THE COMMERCE CLAUSE DOES NOT CUT THE STATES OFF FROM ALL
LEGISLATIVE RELATION TO FOREIGN AND INTERSTATE COMMERCE.  SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177; WESTERN LIVE
STOCK V. BUREAU, 303 U.S. 250.  SUCH COMMERCE INTERPENETRATES THE
STATES, AND NO UNDISPUTED GENERALITY "  ...  IN THE NECESSARY
ACCOMMODATION BETWEEN LOCAL CAN DELIMIT IN ADVANCE THE INTERACTING
AREAS OF STATE AND NATIONAL POWER WHEN CONGRESS HAS NOT BY LEGISLATION
FORECLOSED STATE ACTION.  THE INCIDENCE OF THE PARTICULAR STATE
ENACTMENT MUST DETERMINE WHETHER IT HAS TRANSGRESSED THE POWER LEFT TO
THE STATES TO PROTECT THEIR SPECIAL STATE INTERESTS ALTHOUGH IT IS
RELATED TO A PHASE OF A MORE EXTENSIVE COMMERCIAL PROCESS."  UNION
BROKERAGE CO. V. JENSEN, 322 U.S. 202, 209-10. 

"  ...  IN THE NECESSARY ACCOMMODATION BETWEEN LOCAL NEEDS AND THE
OVERRIDING REQUIREMENT OF FREEDOM FOR THE NATIONAL COMMERCE, THE
INCIDENCE OF A PARTICULAR TYPE OF STATE ACTION MAY THROW THE BALANCE IN
SUPPORT OF THE LOCAL NEED BECAUSE INTERFERENCE WITH THE NATIONAL
INTEREST IS REMOTE OR UNSUBSTANTIAL.  A POLICE REGULATION OF LOCAL
ASPECTS OF INTERSTATE COMMERCE IS A POWER OFTEN ESSENTIAL TO A STATE IN
SAFEGUARDING VITAL LOCAL INTERESTS.  AT LEAST UNTIL CONGRESS CHOOSES TO
ENACT A NATION-WIDE RULE, THE POWER WILL NOT BE DENIED TO THE STATE." 
FREEMAN V. HEWIT, 329 U.S. 249, 253. 

SEE ALSO SOUTHERN R. CO. V. KING, 217 U.S. 524, 533; ILLINOIS NATURAL
GAS CO. V. CENTRAL ILLINOIS PUB. SERV. CO., 314 U.S. 498, 506.  FN2 

THE COURT'S OPINION DEEMS THE DECISION IN BALDWIN V. SEELIG, 294 U.S.
511, AS MOST RELEVANT TO THE PRESENT CONTROVERSY.  BUT IT IS THE
ESSENTIAL TEACHING OF THAT CASE THAT "CONSIDERATIONS OF DEGREE"
DETERMINE THE LINE OF DECISION BETWEEN WHAT A STATE MAY AND WHAT A
STATE MAY NOT REGULATE, WHEN WHAT IS SOUGHT TO BE REGULATED IS PART OF
THE SHUTTLE-WORK OF INTERSTATE COMMERCE.  ID. AT 525.  WHAT WAS THERE
HELD AND ALL THAT WAS HELD WAS ACCURATELY DEFINED IN MILK CONTROL BOARD
V. EISENBERG FARM PRODUCTS, 306 U.S. 346, 353:  "IN BALDWIN V. G.A.F.
SEELIG, 294 U.S. 511, THIS COURT CONDEMNED AN ENACTMENT AIMED SOLELY AT
INTERSTATE COMMERCE ATTEMPTING TO AFFECT AND REGULATE THE PRICE TO BE
PAID FOR MILK IN A SISTER STATE, AND WE INDICATED THAT THE ATTEMPT
AMOUNTED IN EFFECT TO A TARIFF BARRIER SET UP AGAINST MILK IMPORTED
INTO THE ENACTING STATE."  THE NAKEDNESS OF NEW YORK'S PURPOSE TO REACH
INTO VERMONT WAS ILL-CONCEALED BY THE TENUOUS JUSTIFICATION THAT IF
VERMONT FARMERS GOT CHEAP PRICES FOR THEIR MILK THEY WOULD BE TEMPTED
TO SAVE THE EXPENSE OF SANITARY PRECAUTIONS AND THEREBY AFFECT THE
HEALTH OF NEW YORK CONSUMERS.  "IF NEW YORK, IN ORDER TO PROMOTE THE
ECONOMIC WELFARE OF HER FARMERS, MAY GUARD THEM AGAINST COMPETITION
WITH THE CHEAPER PRICES OF VERMONT, THE DOOR HAS BEEN OPENED TO
RIVALRIES AND REPRISALS THAT WERE MEANT TO BE AVERTED BY SUBJECTING
COMMERCE BETWEEN THE STATES TO THE POWER OF THE NATION."  294 U.S. AT
522.  BUT GUARDING AGAINST OUT-OF-STATE COMPETITION IS A VERY DIFFERENT
THING FROM CURBING COMPETITION FROM WHATEVER SOURCE.  A TARIFF BARRIER
BETWEEN STATES, MOREOVER, PRESUPPOSES A PURPOSE TO PREFER THOSE WHO ARE
WITHIN THE BARRIER; WHERE NO SUCH PREFERENCE APPEARS THERE CAN BE NO
JUSTIFICATION FOR REPRISALS AND THERE IS CONSEQUENTLY LITTLE
PROBABILITY OF THEM.  IN THE DETERMINATION THAT AN EXTENSION OF
PETITIONER'S LICENSE WOULD TEND TO DESTRUCTIVE COMPETITION, THE FACT
THAT PETITIONER INTENDED THE OUT-OF-STATE SHIPMENT OF WHAT IT BOUGHT
WAS, SO FAR AS THE RECORD TELLS US, WHOLLY IRRELEVANT; UNDER THE
CIRCUMSTANCES, ANY OTHER APPLICANT, NO MATTER WHERE HE MEANT TO SEND
HIS MILK, WOULD PRESUMABLY ALSO HAVE BEEN REFUSED A LICENSE. 

AS I SEE THE CENTRAL ISSUE, THEREFORE, IT IS WHETHER THE DIFFERENCE
IN DEGREE BETWEEN DENYING ACCESS TO A MARKET FOR FAILURE TO COMPLY WITH
SANITARY OR BOOK-KEEPING REGULATIONS AND DENYING IT FOR THE SAKE OF
PREVENTING DESTRUCTIVE COMPETITION FROM DISRUPTING THE MARKET IS GREAT
ENOUGH TO JUSTIFY A DIFFERENCE IN RESULT.  BUT FOR THAT DIFFERENCE IN
DEGREE, THE JUDGMENT BELOW WOULD FULLY REST ON THE EISENBERG CASE.  IF,
ON THE OTHER HAND, PETITIONER'S COMPETITORS WERE LIKE ITSELF ENGAGED IN
INTERSTATE COMMERCE, BUCK V. KUYKENDALL, 267 U.S. 307, AND BUSH & SONS
CO. V. MALOY, 267 U.S. 317, WOULD BE POWERFUL PRECEDENTS IN FAVOR OF
REVERSAL.  SEE ALSO LEMKE V. FARMERS GRAIN CO., 258 U.S. 50; SHAFER V.
FARMERS GRAIN CO., 268 U.S. 189. 

THIS CASE FALLS SOMEWHERE BETWEEN THESE MOST NEARLY DECISIVE
AUTHORITIES.  IT IS CLOSER TO THE BUCK AND BUSH CASES THAN TO THE
EISENBERG CASE IN THAT THE DENIAL OF A LICENSE TO ENTER A MARKET
BECAUSE THE MARKET IS "ADEQUATELY SERVED" IMPOSES A DISQUALIFICATION
BEYOND THE POWER OF THE APPLICANT TO REMOVE.  IN THAT RESPECT THE
EFFECT UPON THE FREE FLOW OF COMMERCE IS MORE ENDURING THAN IS THE CASE
WHERE ALL THAT IS REQUIRED IS COMPLIANCE WITH A LOCAL REGULATION.  THE
STATE'S INTEREST IN RESTRICTING COMPETITION, MOREOVER, IS LESS OBVIOUS
THAN ITS INTEREST IN PRESERVING HEALTH OR INSURING PROBITY IN BUSINESS
DEALINGS.  YET THE COMMERCE INVOLVED IN THE BUCK AND BUSH CASES - THE
OPERATION OF BUSSES BETWEEN SEATTLE, WASHINGTON, AND PORTLAND, OREGON -
WAS EXCLUSIVELY INTERSTATE.  HERE, HOWEVER, IT DOES NOT APPEAR THAT ANY
OF HOOD'S COMPETITORS SENT MILK OUT OF THE STATE, AND, IN FACT, ONLY
ABOUT 8% OF NEW YORK'S ENTIRE PRODUCTION OF MILK IS SENT OUT.  FN3  IN
THIS RESPECT THE CASE RESEMBLES THE EISENBERG CASE, IN WHICH IT
APPEARED THAT ONLY SLIGHTLY MORE THAN 10% OF THE MILK PRODUCED IN
PENNSYLVANIA WAS EXPORTED.  306 U.S. AT 350.  IN UPHOLDING THE STATE'S
LICENSING POWER IN THAT CASE, THE COURT REMARKED THAT THIS PERCENTAGE
WAS "ONLY A SMALL FRACTION OF THE MILK PRODUCED BY FARMERS IN
PENNSYLVANIA" AND CONCLUDED THAT AS A CONSEQUENCE "THE EFFECT OF THE
LAW ON INTERSTATE COMMERCE IS INCIDENTAL."  ID. AT 353.  BUT COMPARISON
COULD BE CARRIED FURTHER AND STILL THE SIMILARITIES AND DISSIMILARITIES
OF THE FACTS IN THE RECORD BEFORE US TO THE EISENBERG CASE AND THE BUCK
AND BUSH CASES WOULD BE INCONCLUSIVE.  IN AN AREA WHERE DIFFERENCES OF
DEGREE DEPEND ON SLIGHT DIFFERENCES OF FACT, PRECEDENT ALONE IS AN
INADEQUATE GUIDE. 

IT IS ARGUED, HOWEVER, THAT NEW YORK CAN HAVE NO INTEREST IN THE
RESTRICTION OF COMPETITION GREAT ENOUGH TO WARRANT SHUTTING ITS DOORS
TO ONE WHO WOULD BUY ITS PRODUCTS FOR SHIPMENT TO ANOTHER STATE.  THIS
MUST MEAN THAT THE PROTECTION OF HEALTH AND THE PROMOTION OF FAIR
DEALING ARE OF A DIFFERENT ORDER, SOMEHOW, THAN THE PREVENTION OF
DESTRUCTIVE COMPETITION.  BUT THE FIXING OF PRICES WAS A MAIN OBJECT OF
THE REGULATION UPHELD IN THE EISENBERG CASE, AND IT IS OBVIOUS THAT ONE
OF THE MOST EFFECTIVE WAYS OF MAINTAINING A PRICE STRUCTURE IS TO
CONTROL COMPETITION.  FN4 THE MILK INDUSTRY IS PECULIARLY SUBJECT TO
INTERNECINE WARFARE, AS THIS COURT RECOGNIZED IN SUSTAINING AGAINST DUE
PROCESS ATTACK THE PRECURSOR OF NEW YORK'S PRESENT MILK-CONTROL LAW. 
NEBBIA V. NEW YORK, 291 U.S. 502.  A PICTURE OF RUTHLESS AND WASTEFUL
COMPETITION WAS PAINTED IN THAT CASE AS IN EACH OF THE OTHER CASES IN
WHICH THE COURT HAS UPHELD THE REGULATION OF THE MILK INDUSTRY.  UNITED
STATES V. ROCK ROYAL CO-OPERATIVE, 307 U.S. 533; H. P. HOOD & SONS V.
UNITED STATES, 307 U.S. 588; UNITED STATES V. WRIGHTWOOD DAIRY CO., 315
U.S. 110.  AND, SO FAR AS APPEARS, STATE ACTION TO MAINTAIN THE PRICE
STRUCTURE IN CONJUNCTION WITH COMPLEMENTARY REGULATION BY THE SECRETARY
OF AGRICULTURE IS NO LESS NECESSARY FOR THE DAIRY INDUSTRY THAN FOR THE
RAISIN INDUSTRY.  COMPARE PARKER V. BROWN, 317 U.S. 341; SEE UNITED
STATES V. ROCK ROYAL CO-OPERATIVE, INC., 307 U.S. 533, 548-49.  IN VIEW
OF THE IMPORTANCE THAT WE HAVE HITHERTO FOUND IN REGULATION OF THE
ECONOMY OF AGRICULTURE, I CANNOT UNDERSTAND THE JUSTIFICATION FOR
ASSIGNING, AS A MATTER OF LAW, SO MUCH HIGHER A PLACE TO MILK DEALERS'
STANDARDS OF BOOK-KEEPING THAN TO THE ECONOMIC WELL-BEING OF THEIR
INDUSTRY. 

AS MATTERS NOW STAND, HOWEVER, IT IS IMPOSSIBLE TO SAY WHETHER OR NOT
THE RESTRICTION OF COMPETITION AMONG DEALERS IN MILK DOES IN FACT
CONTRIBUTE TO THEIR ECONOMIC WELL-BEING AND, THROUGH THEM, TO THAT OF
THE ENTIRE INDUSTRY.  AND IF WE ASSUME THAT SOME CONTRIBUTION IS MADE,
WE CANNOT GUESS HOW MUCH.  WHY, WHEN THE STATE HAS FIXED A MINIMUM
PRICE FOR PRODUCERS, DOES IT TAKE STEPS TO KEEP COMPETING DEALERS FROM
INCREASING THE PRICE BY BIDDING AGAINST EACH OTHER FOR THE EXISTING
SUPPLY?  IS IT CONCERNED WITH PROTECTING CONSUMERS FROM EXCESSIVE
PRICES?  OR IS IT CONCERNED WITH SEEING THAT MARGINAL DEALERS, FORCED
BY COMPETITION TO PAY MORE AND CHARGE LESS, ARE NOT DRIVEN EITHER TO
CUT CORNERS IN THE MAINTENANCE OF THEIR PLANTS OR TO CLOSE THEM DOWN
ENTIRELY?  MIGHT THESE CONSEQUENCES FOLLOW FROM OPERATION AT LESS THAN
CAPACITY?  WHAT PROPORTION OF CAPACITY IS NECESSARY TO ENABLE THE
MARGINAL DEALER TO STAY IN BUSINESS?  COULD HOOD'S POTENTIAL
COMPETITORS IN THE GREENWICH AREA MAINTAIN EFFICIENT AND SANITARY
STANDARDS OF OPERATION ON A LOWER MARGIN OF PROFIT?  HOW WOULD THEIR
CLOSING DOWN AFFECT PRODUCERS?  WOULD THE COMPETITION OF HOOD AFFECT
DEALERS OTHER THAN THOSE IN THAT AREA?  HOW MANY OF THOSE DEALERS ARE
ALSO ENGAGED IN INTERSTATE COMMERCE?  HOW MUCH OF A STRAIN WOULD BE PUT
ON THE PRICE STRUCTURE MAINTAINED BY THE STATE BY A HOLDING THAT IT
CANNOT REGULATE THE COMPETITION OF DEALERS BUYING FOR AN OUT-OF-STATE
MARKET?  IS THIS A SITUATION IN WHICH STATE REGULATION, BY
SUPPLEMENTING FEDERAL REGULATION, IS OF BENEFIT TO INTERSTATE AS WELL
AS TO INTRASTATE COMMERCE? 

WE SHOULD, I SUBMIT, HAVE ANSWERS AT LEAST TO SOME OF THESE QUESTIONS
BEFORE WE CAN SAY EITHER HOW SERIOUSLY INTERSTATE COMMERCE IS BURDENED
BY NEW YORK'S LICENSING POWER OR HOW NECESSARY TO NEW YORK IS THAT
POWER.  THE TESTIMONY OF THE DEALERS WITH WHOM HOOD SEEKS TO COMPETE IS
TOO INEXPLICIT TO SUPPLY THE ANSWERS.  SINCE THE NEEDED INFORMATION IS
NEITHER ACCESSIBLE TO JUDICIAL NOTICE NOR WITHIN ITS PROPER SCOPE, I
BELIEVE WE SHOULD SEEK FURTHER LIGHT BY REMANDING THE CASE TO THE
COURTS OF THE STATE.  IT IS A COURSE WE HAVE FREQUENTLY TAKEN UPON
RECORDS NO MORE UNSATISFACTORY THAN THIS ONE.  COMPARE CHASTLETON CORP.
V. SINCLAIR, 264 U.S. 543; HAMMOND V. SCHAPPI BUS LINE, 275 U.S. 164;
BORDEN'S FARM PRODUCTS CO. V. BALDWIN, 293 U.S. 194; POLK CO. V.
GLOVER, 305 U.S. 5; GIBBS V. BUCK, 307 U.S. 66; MAYO V. CANNING CO.,
309 U.S. 310 - ALL CASES REMANDED TO AVOID CONSTITUTIONAL ADJUDICATION
WITHOUT ADEQUATE KNOWLEDGE OF THE RELEVANT FACTS. 

NOR SHOULD WE NOW DISPOSE OF THE CASE UPON THE CLAIM THAT NEW YORK
CANNOT DISCRIMINATE AGAINST INTERSTATE COMMERCE BY KEEPING ITS MILK FOR
ABSORPTION BY "LOCAL MARKETS SUCH AS TROY."  IN SUPPORT OF THIS CLAIM
RELIANCE IS PLACED ON OKLAHOMA V. KANSAS NATURAL GAS CO., 221 U.S. 229,
AND PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553, AND THERE IS MUCH
FORCE IN THE ARGUMENT THAT IF A STATE CANNOT KEEP FOR ITS OWN USE A
NATURAL RESOURCE LIKE GAS, AS IT CAN KEEP ITS WILD GAME, GEER V.
CONNECTICUT, 161 U.S. 519; SEE NEW YORK EX REL. SILZ V. HESTERBERG, 211
U.S. 31, 41, THEN A FORTIORI IT CANNOT PREFER ITS OWN INHABITANTS IN
THE CONSUMPTION OF A PRODUCT THAT WOULD NOT HAVE COME INTO EXISTENCE
BUT FOR ITS COMMERCIAL VALUE.  BUT COMPARE HEISLER V. THOMAS COLLIERY
CO., 260 U.S. 245; OLIVER IRON MINING CO. V. LORD, 262 U.S. 172.  IT IS
ONLY AS TO THIS ASPECT OF THE CASE, AT ANY RATE, THAT I CAN SEE THE
RELEVANCE OF BALDWIN V. SEELIG, 294 U.S. 511, AS DEALING WITH WHAT IS
CHARACTERIZED AS "THE CONVERSE OF THE PRESENT SITUATION."  SUPPORT IS
ALSO SOUGHT IN FOSTER-FOUNTAIN PACKING CO. V. HAYDEL, 278 U.S. 1, AND
TOOMER V. WITSELL, 334 U.S. 385, BUT IN THESE CASES WHAT THE STATE HAD
DONE WAS TO HALT FOR THE BENEFIT OF LOCAL PROCESSORS A PRODUCT ALREADY
MOVING IN INTERSTATE COMMERCE WITHOUT ENTIRELY WITHHOLDING THE PRODUCT
FROM INTERSTATE COMMERCE. 

BROADLY STATED, THE QUESTION IS WHETHER A STATE CAN WITHHOLD FROM
INTERSTATE COMMERCE A PRODUCT DERIVED FROM LOCAL RAW MATERIALS UPON A
DETERMINATION BY AN ADMINISTRATIVE AGENCY THAT THERE IS A LOCAL NEED
FOR IT.  FOR ME IT HAS NOT BEEN PUT TO REST BY PENNSYLVANIA V. WEST
VIRGINIA, SUPRA. MORE NARROWLY, THE QUESTION IS WHETHER THE STATE CAN
PREFER THE CONSUMERS OF ONE COMMUNITY TO CONSUMERS IN OTHER STATES AS
WELL AS TO CONSUMERS IN OTHER PARTS OF ITS OWN TERRITORY.  IT IS
ARGUABLE, MOREOVER, THAT THE COMMISSIONER WAS ACTUATED NOT BY
PREFERENCE FOR NEW YORK CONSUMERS, BUT BY THE AIM OF STABILIZING THE
SUPPLY OF ALL THE LOCAL MARKETS, INCLUDING BOSTON AS WELL AS TROY,
SERVED BY THE NEW YORK MILKSHED.  IT MAY ALSO BE THAT HE HAD IN MIND
THE POTENTIALLY HARMFUL COMPETITIVE EFFECT OF EFFORTS BY DEALERS
SUPPLYING THE TROY MARKET TO REPAIR, BY ATTRACTING NEW PRODUCERS, THE
AGGRAVATION OF TROY'S SHORTAGE WHICH WOULD RESULT FROM THE DIVERSION TO
BOSTON OF PART OF TROY'S SUPPLY.  THESE TOO ARE MATTERS AS TO WHICH
MORE LIGHT WOULD BE NEEDED IF IT WERE NOW NECESSARY TO DECIDE THE
QUESTION. 

IN THE VIEW I TAKE OF THE ISSUE OF DESTRUCTIVE COMPETITION, HOWEVER,
THIS QUESTION NEED NOT NOW BE DECIDED.  IT IS IMPOSSIBLE TO SAY FROM A
READING OF THE OPINIONS BELOW THAT THE COMMISSIONER'S FINDING THAT
EXTENSION OF HOOD'S LICENSE WOULD TEND TO DESTRUCTIVE COMPETITION WOULD
NOT BY ITSELF HAVE BEEN A SUFFICIENT BASIS FOR HIS ORDER; AND IT IS A
BASIS WHICH EVIDENCE ADDUCED UPON REMAND MIGHT PUT UPON SOLID
CONSTITUTIONAL GROUND.  A DECISION AT THIS STAGE OF THE QUESTION OF
PREFERMENT OF LOCAL NEEDS, ASSUMING THAT THE RECORD PRESENTS IT, WOULD
PROVE TO BE PURELY ADVISORY, THEREFORE, IF WHEN THE CASE CAME BACK TO
THE STATE COURT, IT FOUND THE ORDER ADEQUATELY SUPPORTED BY THE
JUSTIFICATION OF PREVENTING DESTRUCTIVE COMPETITION.  IT MAY BE
ANSWERED, TO BE SURE, THAT THE STATE WOULD HAVE NO REASON TO DECIDE
WHETHER OR NOT THE LATTER JUSTIFICATION WAS ADEQUATE IN THE ABSENCE OF
AN INDICATION BY THIS COURT THAT THE FORMER - THE RETENTION OF LOCALLY
NEEDED MILK - IS CONSTITUTIONALLY INVALID.  AND SUCH AN INDICATION
WOULD AMOUNT TO DECISION OF THE VERY CONSTITUTIONAL ISSUE PROFESSEDLY
LEFT OPEN.  TO WHICH MY REPLY WOULD BE THAT IT IS A VERY DIFFERENT
THING TO RECOGNIZE THE DIFFICULTY OF A CONSTITUTIONAL ISSUE AND TO
POINT OUT CIRCUMSTANCES IN WHICH IT WOULD NOT ARISE THAN IT IS TO
DECIDE THE ISSUE. 

MY CONCLUSION, ACCORDINGLY, IS THAT THE CASE SHOULD BE REMANDED TO
THE SUPREME COURT OF ALBANY COUNTY FOR ACTION CONSISTENT WITH THE VIEWS
I HAVE STATED. 

FN1  AMONG CONSIDERATIONS OF STATE CONCERN WHICH HAVE BEEN FOUND
SUFFICIENT TO ALLOW STATE LICENSING ARE THE MAINTENANCE OF SANITARY
CONDITIONS, MILK CONTROL BOARD V. EISENBERG FARM PRODUCTS, 306 U.S.
346; AND ADEQUATE PRICES, SEE BRIEF OF PETITIONER IN MILK CONTROL BOARD
V. EISENBERG FARM PRODUCTS, SUPRA, AT PP. 20-21; CONTROL OF THE
TRANSPORTATION OF LIQUOR, ZIFFRIN, INC. V. REEVES, 308 U.S. 132;
DUCKWORTH V. ARKANSAS, 314 U.S. 390; THE PREVENTION OF "FRAUD AND
OVERREACHING" BY TRANSPORTATION AGENTS, CALIFORNIA V. THOMPSON, 313
U.S. 109, 113; "SAFEGUARDING THE INTERESTS OF ITS (THE STATE'S) OWN
PEOPLE IN BUSINESS DEALINGS WITH CORPORATIONS NOT OF ITS OWN CHARTERING
BUT WHO DO BUSINESS WITHIN ITS BORDERS," UNION BROKERAGE CO. V. JENSEN,
322 U.S. 202, 208; AND PROTECTION OF THE PUBLIC FROM "FRAUD,
MISREPRESENTATION, INCOMPETENCE AND SHARP PRACTICE" ON THE PART OF
INSURANCE AGENTS, ROBERTSON V. CALIFORNIA, 328 U.S. 440, 447. 

FN2  EVERY CASE DETERMINING WHETHER OR NOT A LOCAL REGULATION AMOUNTS
TO A PROHIBITED "BURDEN" ON INTERSTATE COMMERCE BELONGS AT SOME POINT
ALONG A GRADUATED SCALE.  CONSIDERING ONLY THOSE DECIDED SINCE MILK
CONTROL BOARD V. EISENBERG FARM PRODUCTS, 306 U.S. 346, AT ONE END ARE
THE TAX CASES; SINCE A STATE HAS OTHER SOURCES OF REVENUE, THE NEED FOR
A TAX "ON" INTERSTATE COMMERCE IS HARD TO JUSTIFY.  IT IS TO BE
EXPECTED, THEREFORE, THAT STATE REVENUE LAWS SHOULD CONSTITUTE THE
LARGEST GROUP OF LAWS INVALIDATED AS "BURDENING" COMMERCE.  AND SO THEY
DO.  MCCARROLL V. DIXIE GREYHOUND LINES, 309 U.S. 176; MCGOLDRICK V.
GULF OIL CORP., 309 U.S. 414; MCLEOD V. DILWORTH CO., 322 U.S. 327;
NIPPERT V. CITY OF RICHMOND, 327 U.S. 416; FREEMAN V. HEWIT, 329 U.S.
249; JOSEPH V. CARTER & WEEKES CO., 330 U.S. 422; CENTRAL GREYHOUND
LINES V. MEALEY, 334 U.S. 653, 662.  YET THERE HAS BEEN AN INCREASING
RECOGNITION OF THE STATES' INTEREST IN SEEING THAT INTERSTATE COMMERCE
"PAYS ITS WAY," AND A CONSEQUENT DISPOSITION TO CLASSIFY THE OBJECT OF
THE TAX AS INTRASTATE.  MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33;
MCGOLDRICK V. FELT & TARRANT CO., 309 U.S. 70; MCGOLDRICK V. COMPAGNIE
GENERALE TRANSATLANTIQUE, 309 U.S. 430; NELSON V. SEARS, ROEBUCK & CO.,
312 U.S. 359; NELSON V. MONTGOMERY WARD & CO., 312 U.S. 373; NORTHWEST
AIRLINES V. MINNESOTA, 322 U.S. 292; GENERAL TRADING CO. V. STATE TAX
COMM'N, 322 U.S. 335; INTERNATIONAL HARVESTER CO. V. DEPARTMENT OF
TREASURY, 322 U.S. 340; INDEPENDENT WAREHOUSES V. SCHEELE, 331 U.S. 70;
CF. AERO MAYFLOWER TRANSIT CO. V. BOARD OF R. COMM'RS, 332 U.S. 495. 
BY THE SAME PRINCIPLE, A REGULATION WHICH MAKES A GOOD DEAL OF TROUBLE
FOR AN INTERSTATE RAILROAD MUST BE STRUCK DOWN IN THE ABSENCE OF ANY
VERY CONVINCING SHOWING THAT THE REGULATION IS A REASONABLE RESPONSE TO
A SERIOUS LOCAL NEED.  SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761;
MORGAN V. VIRGINIA, 328 U.S. 373.  BUT A MORE IMPRESSIVE SHOWING OF
SUCH A CONTRIBUTION ON THE ONE HAND AND A LESS PERSUASIVE DEMONSTRATION
OF INCONVENIENCE OF THE OTHER HAS BROUGHT ABOUT THE OPPOSITE RESULT. 
TERMINAL RAILROAD ASSN. OF ST. LOUIS V. BROTHERHOOD OF RAILROAD
TRAINMEN, 318 U.S. 1; BOB-LO EXCURSION CO. V. MICHIGAN, 333 U.S. 28. 
WHERE MOTOR CARRIERS ARE CONCERNED, A STATE IS REGARDED AS HAVING A
PROPRIETARY INTEREST IN ITS HIGHWAYS WHICH JUSTIFIES A GENERALLY MORE
AGGRESSIVE ASSERTION OF ITS SELF-INTEREST.  WELCH CO. V. NEW HAMPSHIRE,
306 U.S. 79; CLARK V. PAUL GRAY, INC., 306 U.S. 583; MAURER V.
HAMILTON, 309 U.S. 598.  AND THE PROTECTION OF ITS OWN CITIZENS THROUGH
MAINTENANCE OF HIGH STANDARDS OF BUSINESS DEALING BY SUCH REGULATIONS
AS THOSE INVOLVED IN CALIFORNIA V. THOMPSON, 313 U.S. 109; UNION
BROKERAGE CO. V. JENSEN, 322 U.S. 202; AND ROBERTSON V. CALIFORNIA, 328
U.S. 440, IS A MATTER OF LOCAL CONCERN THAT HAS BEEN GIVEN ALMOST AS
MUCH LATITUDE AS THE PROTECTION OF HEALTH, CLASON V. INDIANA, 306 U.S.
439.  BUT AT THE OPPOSITE EXTREME FROM REVENUE MEASURES, PERHAPS, IS
CONTROL OF THE TRANSPORTATION OF INTOXICATING LIQUOR, IN THE NAME OF
WHICH QUITE CONFINING HOBBLES HAVE BEEN PUT UPON INTERSTATE COMMERCE
AND SUSTAINED UNDER THE COMMERCE CLAUSE, WITHOUT RESORTING TO THE
TWENTY-FIRST AMENDMENT.  ZIFFRIN, INC. V. REEVES, 308 U.S. 132;
DUCKWORTH V. ARKANSAS, 314 U.S. 390; CARTER V. VIRGINIA, 321 U.S. 131. 

FN3  FOR THIS INFORMATION I AM INDEBTED TO THE DEPARTMENT OF
AGRICULTURE OF THE UNITED STATES. 

FN4  THUS, IN THE INTERSTATE COMMERCE ACT OF 1920, CONGRESS GAVE THE
INTERSTATE COMMERCE COMMISSION POWER TO LIMIT COMPETITION BOTH BY
WITHHOLDING CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY AND BY
PERMITTING CONSOLIDATIONS BEYOND THE REACH OF THE ANTITRUST LAWS AND AT
THE SAME TIME GAVE IT POWER TO PRESCRIBE MINIMUM RATES; THE TWO FORMS
OF CONTROL SUPPLEMENT EACH OTHER.  SEE 41 STAT. 477-478, AS AMENDED, 49
U.S.C. SEC. 1(18), (19), (20); 41 STAT. 480-481, AS AMENDED, 49 U.S.C.
SEC. 5(11); 41 STAT. 484-85, AS AMENDED, 49 U.S.C. SEC. 15(1); BIKLE,
POWER OF THE INTERSTATE COMMERCE COMMISSION TO PRESCRIBE MINIMUM RATES,
36 HARV. L. REV. 5, 26; SEE ALSO MR. JUSTICE BRANDEIS, DISSENTING IN
NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262, 280, 308-10, AND
AUTHORITIES THERE CITED.  COMPARE THE MILLER-TYDINGS ACT, 50 STAT. 693,
15 U.S.C. SEC. 1. 
..END :







NATIONAL CARBIDE CORP. V. COMM'R, 336 U.S. 422 


ARGUED JANUARY 6, 1949.  - DECIDED MARCH 28, 1949.  - 167 F.2D 304,
AFFIRMED. 


1.  PETITIONERS WERE WHOLLY OWNED SUBSIDIARIES OF A PARENT CORPORATION
WHICH UTILIZED THEM AS OPERATING COMPANIES IN THE MANUFACTURE AND SALE
OF PRODUCTS.  THEY OPERATED STRICTLY IN ACCORD WITH CONTRACTS WITH THE
PARENT WHICH PROVIDED, INTER ALIA, THAT THE SUBSIDIARIES WERE EMPLOYED
AS AGENTS OF THE PARENT, THAT THE PARENT WOULD FURNISH WORKING CAPITAL,
AND THAT ALL PROFITS IN EXCESS OF SIX PERCENT ON THEIR CAPITALIZATION
(WHICH WAS NOMINAL) WOULD BE PAID TO THE PARENT.  TITLE TO THE ASSETS
UTILIZED BY THE SUBSIDIARIES WAS HELD BY THEM, AND ADVANCES BY THE
PARENT OF WORKING CAPITAL WERE SHOWN ON THE BOOKS OF THE SUBSIDIARIES
AS ACCOUNTS PAYABLE TO THE PARENT.  HELD:  FOR PURPOSES OF FEDERAL
INCOME AND EXCESS PROFITS TAXES FOR THE YEAR 1938, INCOME EARNED BY THE
SUBSIDIARIES AND PAID OVER TO THE PARENT CORPORATION WAS TAXABLE TO THE
SUBSIDIARIES AND NOT ONLY TO THE PARENT CORPORATION.  PP. 424-439. 

2.  A CORPORATION FORMED OR OPERATED FOR BUSINESS PURPOSES MUST SHARE
THE TAX BURDEN DESPITE SUBSTANTIAL IDENTITY, IN PRACTICAL OPERATION,
WITH ITS OWNER.  COMPLETE OWNERSHIP OF THE CORPORATION, AND THE CONTROL
PRIMARILY DEPENDENT UPON SUCH OWNERSHIP, ARE NO LONGER OF SIGNIFICANCE
IN DETERMINING TAXABILITY.  P. 429. 

3.  SO FAR AS THE BASIS FOR THE RESULT REACHED IN SOUTHERN PACIFIC
CO. V. LOWE, 247 U.S. 330, WAS THE CLOSE RELATIONSHIP BETWEEN
CORPORATIONS BECAUSE OF COMPLETE OWNERSHIP AND CONTROL OF ONE BY THE
OTHER, THAT BASIS HAS BEEN REPUDIATED BY SUBSEQUENT DECISIONS OF THIS
COURT.  MOLINE PROPERTIES, INC. V. COMMISSIONER, 319 U.S. 436; BURNET
V. COMMONWEALTH IMPROVEMENT CO., 287 U.S. 415.  PP. 428-430. 

4.  OWNERSHIP OF A CORPORATION AND THE CONTROL INCIDENT THERETO CAN
HAVE NO DIFFERENT TAX CONSEQUENCES WHEN CLOTHED IN THE GARB OF AGENCY
THAN WHEN WORN AS A REMOVABLE CORPORATE VEIL.  P. 430. 

5.  SO FAR AS CONTROL IS CONCERNED, THERE IS NO DIFFERENCE IN
PRINCIPLE BETWEEN THAT EXERCISED BY THE PARENT OVER THE SUBSIDIARIES IN
THIS CASE AND THAT EXERCISED BY THE SOLE STOCKHOLDER OF THE CORPORATION
IN THE CASE OF MOLINE PROPERTIES, INC. V. COMMISSIONER, SUPRA.  PP. 433
434. 

6.  IT MAKES NO DIFFERENCE IN THIS CASE THAT FINANCING OF THE
SUBSIDIARIES WAS CARRIED OUT BY MEANS OF BOOK INDEBTEDNESSES IN LIEU OF
INCREASED BOOK VALUE OF THE SUBSIDIARIES' STOCK.  PP. 434-435. 

7. THAT THE CONTRACTS REQUIRED THE SUBSIDIARIES TO PAY TO THE PARENT
ALL BUT A NOMINAL AMOUNT OF THE PROFITS DOES NOT MAKE THEM "AGENCY"
CONTRACTS WITHIN THE MEANING OF THE DECISIONS OF THIS COURT.  PP. 435
436. 

8.  WHILE A CORPORATION WHICH PERFORMS THE USUAL FUNCTIONS OF AN
AGENT FOR ITS OWNER-PRINCIPAL MAY HANDLE THE LATTER'S PROPERTY AND
INCOME WITHOUT BEING TAXABLE THEREFOR, THESE SUBSIDIARIES ARE NOT TRUE
AGENTS OF, OR TRUSTEES FOR, THEIR PARENT.  PP. 437-439. 

9.  WHERE A CORPORATION CHOOSES TO AVOID THE BURDENS OF PRINCIPALSHIP
BY UTILIZING SUBSIDIARY CORPORATIONS TO CONDUCT CERTAIN BUSINESS
ACTIVITIES, IT CAN NOT ESCAPE THE TAX CONSEQUENCE OF THAT CHOICE, NO
MATTER HOW BONA FIDE ITS MOTIVES OR LONG-STANDING ITS ARRANGEMENTS. 
PP. 438-439. 

NATIONAL CARBIDE CORP. V. COMMISSIONER OF INTERNAL REVENUE. 

NO. 151.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT.* 

*TOGETHER WITH NO. 152, AIR REDUCTION SALES CO. V. COMMISSIONER OF
INTERNAL REVENUE, AND NO. 153, PURE CARBONIC, INC. V. COMMISSIONER OF
INTERNAL REVENUE, ALSO ON CERTIORARI TO THE SAME COURT. 

THE COMMISSIONER ASSESSED AGAINST EACH OF THE PETITIONERS
DEFICIENCIES IN INCOME TAX AND DECLARED VALUE EXCESS PROFITS TAX FOR
1938.  THE TAX COURT DETERMINED THAT THERE WERE NO DEFICIENCIES.  8
T.C. 594.  THE COURT OF APPEALS REVERSED.  167 F.2D 304.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 810.  AFFIRMED, P. 439. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE THREE WHOLLY OWNED SUBSIDIARIES OF AIR REDUCTION
CORPORATION (AIRCO).  THEY SEEK A DETERMINATION OF THE QUESTION WHETHER
DEFICIENCIES IN INCOME AND DECLARED VALUE EXCESS PROFITS TAXES FOR THE
YEAR 1938 FOUND BY THE COMMISSIONER OF INTERNAL REVENUE ARE PROPERLY
CHARGEABLE TO THEM.  THEIR CONTENTION IS THAT THEY ARE CORPORATE AGENTS
OF AIRCO, THAT THE INCOME FROM THEIR OPERATIONS IS INCOME OF AIRCO, AND
THAT INCOME AND EXCESS PROFITS TAXES MUST BE DETERMINED ON THAT BASIS. 

BY A SERIES OF COMBINATIONS AND DISSOLUTIONS OF PREVIOUSLY ACQUIRED
SUBSIDIARY COMPANIES, AIRCO HAD, PRIOR TO 1938, REDUCED THE NUMBER OF
ITS SUBSIDIARIES TO FOUR.  ALL OPERATED STRICTLY IN ACCORDANCE WITH
CONTRACTS WITH AIRCO.  FN1  THE SUBSIDIARIES WERE UTILIZED BY AIRCO AS
OPERATING COMPANIES IN THE FOUR MAJOR FIELDS OF OPERATION IN WHICH IT
WAS ENGAGED.  AIR REDUCTION SALES COMPANY CARRIED ON THE MANUFACTURE
AND SALE OF THE GASEOUS CONSTITUENTS OF AIR; NATIONAL CARBIDE
CORPORATION, THE MANUFACTURE AND SALE OF CALCIUM CARBIDE; PURE
CARBONIC, INC., THE MANUFACTURE AND SALE OF CARBON DIOXIDE; AND WILSON
WELDER & METALS CO., THE MANUFACTURE AND SALE OF WELDING MACHINES,
EQUIPMENT AND SUPPLIES.  FN2 

THE CONTRACTS BETWEEN AIRCO AND ITS SUBSIDIARIES PROVIDED, IN
SUBSTANCE, THAT THE LATTER WERE EMPLOYED AS AGENTS TO MANAGE AND
OPERATE PLANTS DESIGNED FOR THE PRODUCTION OF THE PRODUCTS ASSIGNED TO
EACH, AND AS AGENTS TO SELL THE OUTPUT OF THE PLANTS.  AIRCO WAS TO
FURNISH WORKING CAPITAL, EXECUTIVE MANAGEMENT AND OFFICE FACILITIES FOR
ITS SUBSIDIARIES.  THEY IN TURN AGREED TO PAY AIRCO ALL PROFITS IN
EXCESS OF SIX PERCENT ON THEIR OUTSTANDING CAPITAL STOCK, WHICH IN EACH
CASE WAS NOMINAL IN AMOUNT.  FN3 TITLE TO THE ASSETS UTILIZED BY THE
SUBSIDIARIES WAS HELD BY THEM, AND AMOUNTS ADVANCED BY AIRCO FOR THE
PURCHASE OF ASSETS AND WORKING CAPITAL WERE SHOWN ON THE BOOKS OF THE
SUBSIDIARIES AS ACCOUNTS PAYABLE TO AIRCO.  THE VALUE OF THE ASSETS OF
EACH COMPANY THUS APPROXIMATED THE AMOUNT OWED TO AIRCO.  NO INTEREST
RAN ON THESE ACCOUNTS. 

AIRCO AND ITS SUBSIDIARIES WERE ORGANIZED HORIZONTALLY INTO SIX
OVERRIDING DIVISIONS: CORPORATE, OPERATIONS, SALES, FINANCIAL,
DISTRIBUTION, AND RESEARCH.  OFFICERS HEADING EACH DIVISION WERE, IN
TURN, OFFICERS OF THE SUBSIDIARIES.  TOP OFFICIALS OF AIRCO HELD
SIMILAR POSITIONS IN THE SUBSIDIARY COMPANIES.  DIRECTORS OF THE
SUBSIDIARIES MET ONLY TO RATIFY THE ACTIONS OF THE DIRECTORS AND
OFFICERS OF AIRCO. 

AIRCO CONSIDERED THE PROFITS TURNED OVER TO IT BY THE SUBSIDIARIES
PURSUANT TO THE CONTRACTS AS ITS OWN INCOME AND REPORTED IT AS SUCH. 
PETITIONERS REPORTED AS INCOME ONLY THE SIX PER CENT RETURN ON CAPITAL
THAT EACH WAS ENTITLED TO RETAIN.  SIMILARLY, IN DECLARING THE VALUE OF
THEIR CAPITAL STOCK FOR DECLARED VALUE EXCESS PROFITS TAX PURPOSES, THE
SUBSIDIARIES REPORTED ONLY THE NOMINAL AMOUNTS AT WHICH THE STOCK WAS
CARRIED ON THE BOOKS OF EACH.  THE COMMISSIONER NOTIFIED PETITIONERS OF
SUBSTANTIAL INCOME AND EXCESS PROFITS TAX DEFICIENCIES IN THEIR 1938
RETURNS, HAVING TAKEN THE POSITION THAT THEY ARE TAXABLE ON THE INCOME
TURNED OVER TO AIRCO AS WELL AS THE NOMINAL AMOUNTS RETAINED.  THE TAX
COURT HELD, HOWEVER, THAT THE INCOME FROM PETITIONERS' OPERATIONS IN
EXCESS OF SIX PER CENT OF THEIR CAPITAL STOCK WAS INCOME AND PROPERTY
OF AIRCO.  THREE JUDGES DISSENTED.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT REVERSED.  167 F.2D 304.  WE GRANTED THE PETITION FOR A WRIT OF
CERTIORARI, 335 U.S. 810, BECAUSE OF THIS CONFLICT OF OPINION AND THE
DISAGREEMENT BETWEEN COURTS AS TO THE CONTINUING VITALITY OF SOUTHERN
PACIFIC CO. V. LOWE, 247 U.S. 330(1918). 

PETITIONERS' CONTENTION IS, IN SUBSTANCE, THAT OUR DECISION IN MOLINE
PROPERTIES, INC. V. COMMISSIONER, 319 U.S. 436(1943), WHICH HELD THAT
THE TAX LAWS REQUIRE TAXATION OF THE CORPORATE ENTITY IF IT ENGAGES IN
"BUSINESS ACTIVITY," EXPRESSLY EXCEPTED THE SITUATION IN WHICH THE
CORPORATION IS THE AGENT OF ITS OWNER; THAT SOUTHERN PACIFIC CO. V.
LOWE, SUPRA, DEFINES THE CONTENT OF "AGENCY" FOR TAX PURPOSES; AND
THAT, AS THE TAX COURT FOUND, THIS COURT'S CHARACTERIZATION OF THE
RELATIONSHIP BETWEEN THE CORPORATIONS IN THE SOUTHERN PACIFIC CASE IS
"APTLY DESCRIPTIVE" OF THE RELATIONSHIP BETWEEN AIRCO AND PETITIONERS. 
IT MUST FOLLOW, ACCORDING TO PETITIONERS, THAT INCOME RECEIVED BY THEM
AND TRANSMITTED TO AIRCO IS TAXABLE ONLY TO AIRCO. 

RESPONDENT DOES NOT QUARREL WITH THE FIRST AND THIRD PROPOSITIONS. 
THE COLLISION OCCURS AT THE SECOND.  THE ISSUE AS PRESENTED BY
PETITIONERS IS, THEREFORE, WHETHER THE PRINCIPAL-AGENT RELATIONSHIP
DESCRIBED IN THE SOUTHERN PACIFIC CASE - AND THE SIMILAR ARRANGEMENT
BETWEEN AIRCO AND PETITIONERS - CONTAINS THE "USUAL INCIDENTS OF AN
AGENCY RELATIONSHIP," AS THAT PHRASE WAS USED IN MOLINE PROPERTIES,
INC. V. COMMISSIONER, SUPRA. 

PETITIONERS' CONTENTION THAT THE SOUTHERN PACIFIC CASE ESTABLISHED A
CONCEPT OF AGENCY THAT HAS SURVIVED OUR LATER DECISIONS MAY BE DEALT
WITH RATHER SUMMARILY.  THAT CASE TREATED INCOME EARNED BY A WHOLLY
OWNED SUBSIDIARY BEFORE MARCH 1, 1913, THE EFFECTIVE DATE OF THE INCOME
TAX ACT OF 1913, AS HAVING ACCRUED TO ITS PARENT PRIOR TO THAT DATE
DESPITE THE FACT THAT THE ACTUAL TRANSFER OF FUNDS BY DECLARATION OF
DIVIDENDS OCCURRED SUBSEQUENT THERETO.  THE THEORY OF THE CASE WAS THAT
THE TWO CORPORATIONS COULD BE TREATED AS IDENTICAL, FOR THE PURPOSES OF
THE 1913 ACT, BECAUSE OF THE COMPLETE DOMINATION AND CONTROL EXERCISED
BY THE PARENT OVER ITS SUBSIDIARY. 

BY THIS DECISION, THIS COURT IS SAID TO HAVE "LOOKED BEYOND THE
CORPORATE FORM,"  FN4  AND IGNORED "THE SEPARATE ENTITY OF A
CORPORATION."  FN5  WHATEVER THE DIALECTICS EMPLOYED, COURTS AND
COMMENTATORS HAVE AGREED THAT PARENT AND SUBSIDIARY WERE TREATED AS ONE
CORPORATION FOR THE PURPOSES OF THE TAXES THERE IN QUESTION; TRANSFER
OF EARNINGS TO THE PARENT WAS MERELY "A PAPER TRANSACTION."  THE
SOUTHERN PACIFIC CASE DID NOT, AND DID NOT PURPORT TO, REST ON ANY
PRINCIPLE OF AGENCY.  THE ONLY REFERENCE TO THE SUBSIDIARY (CENTRAL
PACIFIC) AS AN AGENT IS MADE IN THIS CONTEXT: 

"...  THE CENTRAL PACIFIC AND THE SOUTHERN PACIFIC WERE IN SUBSTANCE
IDENTICAL BECAUSE OF THE COMPLETE OWNERSHIP AND CONTROL WHICH THE
LATTER POSSESSED OVER THE FORMER, AS STOCKHOLDER AND IN OTHER
CAPACITIES.  WHILE THE TWO COMPANIES WERE SEPARATE LEGAL ENTITIES, YET
IN FACT, AND FOR ALL PRACTICAL PURPOSES THEY WERE MERGED, THE FORMER
BEING BUT A PART OF THE LATTER, ACTING MERELY AS ITS AGENT AND SUBJECT
IN ALL THINGS TO ITS PROPER DIRECTION AND CONTROL."  247 U.S. AT 337. 

IT IS THUS CLEAR BEYOND DOUBT THAT THE SUBSIDIARY WAS NOT REFERRED TO
AS AN AGENT OF THE PARENT IN THE USUAL OR TECHNICAL SENSE.  "AGENCY"
AND "PRACTICAL IDENTITY," AS THOSE WORDS ARE USED IN THE SOUTHERN
PACIFIC CASE, ARE UNQUESTIONABLY OPPOSITE SIDES OF THE SAME COIN.  FN6
THE CLOSE RELATIONSHIP BETWEEN CORPORATIONS BECAUSE OF COMPLETE
OWNERSHIP AND CONTROL OF ONE BY THE OTHER WAS THE BASIS FOR THE RESULT
REACHED, WHATEVER ITS ARTICULATION. 

THAT BASIS HAS BEEN REPUDIATED BY SUBSEQUENT DECISIONS OF THIS
COURT.  WHATEVER THE VITALITY OF SOUTHERN PACIFIC CO. V. LOWE ON ITS
SPECIAL FACTS, WE HAVE HELD THAT A CORPORATION FORMED OR OPERATED FOR
BUSINESS PURPOSES MUST SHARE THE TAX BURDEN DESPITE SUBSTANTIAL
IDENTITY, IN PRACTICAL OPERATION, WITH ITS OWNER.  COMPLETE OWNERSHIP
OF THE CORPORATION, AND THE CONTROL PRIMARILY DEPENDENT UPON SUCH
OWNERSHIP - THE IMPORTANT INGREDIENTS OF THE SOUTHERN PACIFIC CASE -
ARE NO LONGER OF SIGNIFICANCE IN DETERMINING TAXABILITY.  MOLINE
PROPERTIES, INC. V. COMMISSIONER, SUPRA; BURNET V. COMMONWEALTH
IMPROVEMENT CO., 287 U.S. 415(1932).  FN7 

IN BOTH OF THE CASES LAST CITED, THE AGENCY ARGUMENT NOW URGED UPON
US WAS MADE AND REJECTED.  IN BOTH CASES, SOUTHERN PACIFIC CO. V. LOWE,
SUPRA, WAS RELIED UPON BY THE TAXPAYERS.  IN BOTH, WE FOUND THAT THE
CONTENTION THAT THE CORPORATION WAS THE AGENT OF ITS OWNER WAS SIMPLY
THE ARGUMENT THAT THE SUBSIDIARY HAD NO CORPORATE IDENTITY DISTINCT
FROM ITS STOCKHOLDERS IN A DIFFERENT FORM.  IT IS TRUE THAT PETITIONERS
HERE DO NOT ASK THAT THEY BE IGNORED COMPLETELY FOR TAX PURPOSES.  THEY
ARE WILLING TO PAY TAXES ON THE NOMINAL AMOUNTS THEY RETAIN AS AIRCO'S
"AGENTS."  BUT THIS FACT SERVES TO EMPHASIZE THE INAPPLICABILITY OF THE
SOUTHERN PACIFIC CASE, UPON WHICH THEY RELY.  THERE, AS IN COMMONWEALTH
IMPROVEMENT CO. AND MOLINE PROPERTIES CASES, THE DECISION TURNED UPON
THE QUESTION WHETHER THE CORPORATE ENTITY WAS OR WAS NOT TO BE
COMPLETELY IGNORED FOR TAX PURPOSES.  IF THE CENTRAL PACIFIC HAD BEEN
ACCORDED ANY TAX STATUS IN THE SOUTHERN PACIFIC CASE, IT UNQUESTIONABLY
WOULD HAVE BEEN TAXED ON THE ENTIRE INCOME IT RECEIVED.  IN FACT, IT
WAS SO TAXED UPON ALL INCOME RECEIVED AFTER MARCH 1, 1913; ONLY INCOME
RECEIVED PRIOR THERETO WAS CONSIDERED INCOME OF THE PARENT DIRECTLY. 
FN8 

WE THINK, THEREFORE, THAT PETITIONERS' ARGUMENT IS WITHOUT MERIT
BECAUSE BASED ON AN ERRONEOUS INTERPRETATION OF SOUTHERN PACIFIC CO. V.
LOWE, SUPRA.  THE AGENCY ARGUMENT, TO QUOTE THE OPINION IN MOLINE
PROPERTIES, "IS BASICALLY THE SAME ARGUMENT OF IDENTITY IN A DIFFERENT
FORM.  ...  THE QUESTION OF AGENCY OR NOT DEPENDS UPON THE SAME LEGAL
ISSUES AS DOES THE QUESTION OF IDENTITY PREVIOUSLY DISCUSSED."  FN9
OWNERSHIP OF A CORPORATION AND THE CONTROL INCIDENT THERETO CAN HAVE NO
DIFFERENT TAX CONSEQUENCES WHEN CLOTHED IN THE GARB OF AGENCY THAN WHEN
WORN AS A REMOVABLE CORPORATE VEIL. 

BUT IT IS NECESSARY TO GO FARTHER.  THE TAX COURT DID NOT, AS
PETITIONERS SEEM TO THINK, CONSIDER THE ARGUMENT THAT THEY WERE AGENTS
OF AIRCO AS DIFFERENT FROM OR HAVING ANY GREATER VALIDITY THAN THE
ARGUMENT OF IDENTITY OF AIRCO AND ITS SUBSIDIARIES.  THE COURT, IN
CHARACTERIZING PETITIONERS AS AIRCO'S AGENTS, USED THAT TERM EXACTLY AS
IT HAD BEEN USED IN THE SOUTHERN PACIFIC, COMMONWEALTH IMPROVEMENT CO.,
AND MOLINE PROPERTIES CASES.  ACCORDING TO THE TAX COURT'S OPINION: 

"THE ISSUE WHICH (WAS DECIDED) IN THIS PROCEEDING IS WHETHER, AS THE
RESPONDENT HAS DETERMINED, THE INCOME FROM THE OPERATIONS OF THE THREE
PETITIONERS BELONGED NOT TO AIRCO, THE PARENT, BUT TO THE PETITIONERS,
AND WAS TAXABLE TO THEM; OR WHETHER, AS THE THREE PETITIONERS CONTEND,
THE INCOME FROM THE OPERATIONS OF THE PETITIONERS IN 1938, EXCLUSIVE OF
THE SMALL AMOUNTS PAID TO PETITIONERS UNDER THE CONTRACTS, BELONGED AND
WAS TAXABLE TO AIRCO, THE PARENT COMPANY, BOTH BECAUSE THE PETITIONERS
WERE IN FACT INCORPORATED DEPARTMENTS, DIVISIONS, OR BRANCHES OF
AIRCO'S BUSINESS AND BECAUSE THE PETITIONERS OPERATED PURSUANT TO
EXPRESS CONTRACT WITH AIRCO."  FN10 

THE THEORY UPON WHICH THE TAX COURT EXPUNGED THE DEFICIENCIES
APPARENTLY WAS THAT SINCE THE SOUTHERN PACIFIC CO. CASE WAS NOT
EXPRESSLY OVERRULED BY MOLINE PROPERTIES, THE "BUSINESS PURPOSE" RULE
LAID DOWN IN THE LATTER IS NOT ABSOLUTE, BUT THAT THE CORPORATE ENTITY
MAY BE DISREGARDED (OR THE CORPORATION TREATED AS AN AGENT OF ITS
OWNER) FOR TAX PURPOSES WHEN THE FACTS OF OWNERSHIP AND CONTROL OF THE
CORPORATION APPROXIMATE THOSE PRESENTED BY THE SOUTHERN PACIFIC CASE. 
THE COURT OF APPEALS DISAGREED.  IT HELD THAT UNDER OUR DECISIONS, WHEN
A CORPORATION CARRIES ON BUSINESS ACTIVITY THE FACT THAT THE OWNER
RETAINS DIRECTION OF ITS AFFAIRS DOWN TO THE MINUTEST DETAIL, PROVIDES
ALL OF ITS ASSETS AND TAKES ALL OF ITS PROFITS CAN MAKE NO DIFFERENCE
TAX-WISE.  THE COURT CONCLUDED THAT "EVEN THOUGH SOUTHERN PACIFIC CO.
V. LOWE, SUPRA, SET UP A DIFFERENT TEST, WE REGARD IT AS PRO TANTO NO
LONGER CONTROLLING."  FN11 

THE RESULT REACHED BY THE COURT OF APPEALS IS CLEARLY REQUIRED BY OUR
LATER DECISIONS.  OUR RELUCTANCE TO ERASE SOUTHERN PACIFIC FROM THE
BOOKS HAS BEEN DUE NOT TO ANY BELIEF THAT IT LAYS DOWN A CORRECT RULE
FOR TAX PURPOSES GENERALLY, BUT TO THE FACT THAT IT CONCERNS "VERY
PECULIAR FACTS" WHICH MAKE IT CLEARLY DISTINGUISHABLE FROM LATER CASES
INVOLVING THE TAX STATUS OF A SUBSIDIARY OR OTHER WHOLLY OWNED
CORPORATION.  FN12  FOR THAT REASON, WE HAVE, INSTEAD, HELD THAT IT
LAYS DOWN NO RULE FOR TAX PURPOSES.  BURNET V. COMMONWEALTH IMPROVEMENT
CO., SUPRA AT P. 419; MOLINE PROPERTIES, INC. V. COMMISSIONER, SUPRA AT
P. 439.  THAT THE CONCEPT OF IDENTITY OF THE CORPORATION WITH ITS OWNER
SET OUT IN THE SOUTHERN PACIFIC CASE IS INCOMPATIBLE WITH LATER
DECISIONS OF THIS COURT MAY BE DEMONSTRATED BY A CONSIDERATION OF THE
FACTS ENUMERATED AND RELIED UPON BY THE TAX COURT, WHICH BASED SUCH
RELIANCE ON THE EMPHASIS PLACED UPON SIMILAR FACTS IN THE SOUTHERN
PACIFIC CASE.  THESE FACTS RELATE TO THE OWNERSHIP, CONTROL, AND RIGHT
TO INCOME RESERVED BY THE PARENT.    SO FAR AS CONTROL IS CONCERNED, WE
CAN SEE NO DIFFERENCE IN PRINCIPLE BETWEEN AIRCO'S CONTROL OF
PETITIONERS AND THAT EXERCISED OVER MOLINE PROPERTIES, INC., BY ITS
SOLE STOCKHOLDER.  UNDOUBTEDLY THE GREAT MAJORITY OF CORPORATIONS OWNED
BY SOLE STOCKHOLDERS ARE "DUMMIES" IN THE SENSE THAT THEIR POLICIES AND
DAY-TO-DAY ACTIVITIES ARE DETERMINED NOT AS DECISIONS OF THE
CORPORATION BUT BY THEIR OWNERS ACTING INDIVIDUALLY.  WE CAN SEE NO
SIGNIFICANCE, THEREFORE, IN FINDINGS OF FACT SUCH AS, "THE AIRCO BOARD
HELD REGULAR MEETINGS AND EXERCISED COMPLETE DOMINATION AND CONTROL
OVER THE BUSINESS OF AIRCO AND EACH OF THE PETITIONERS," AND "THE
CHAIRMAN, VICE CHAIRMAN, AND PRESIDENT OF AIRCO WERE IN CHARGE OF THE
ADMINISTRATION AND MANAGEMENT OF THE ACTIVITIES OF EACH PETITIONER AND
CARRIED OUT THE POLICIES AND DIRECTIVES WITH RESPECT TO EACH PETITIONER
AS PROMULGATED BY THE AIRCO BOARD."  FN13  WE REVERSED THE BOARD OF TAX
APPEALS IN MOLINE PROPERTIES IN THE FACE OF ITS FINDING THAT "FULL
BENEFICIAL OWNERSHIP WAS IN THOMPSON (THE SOLE STOCKHOLDER), WHO
CONTINUED TO MANAGE AND REGARD THE PROPERTY AS HIS OWN INDIVIDUALLY." 
FN14 

SOME STRESS WAS PLACED BY THE TAX COURT, AND BY PETITIONERS IN
ARGUMENT HERE, UPON THE FORM OF OWNERSHIP OF ASSETS ADOPTED BY AIRCO
AND ITS SUBSIDIARIES.  PETITIONERS' CAPITAL STOCK WAS, AS HAS BEEN
STATED, NOMINAL IN AMOUNT.  ASSETS OF CONSIDERABLE VALUE, TO WHICH
TITLE WAS HELD BY THE SUBSIDIARIES, WERE BALANCED BY ACCOUNTS PAYABLE
TO AIRCO ON THE BOOKS OF EACH.  THE TAX COURT THOUGHT IT MATERIAL THAT
"ALL ASSETS HELD BY EACH PETITIONER WERE FURNISHED TO IT BY AIRCO,
WHICH PAID FOR THEM WITH ITS OWN CASH OR STOCK.  AIRCO SUPPLIED ALL THE
WORKING CAPITAL OF EACH PETITIONER." 

IF AIRCO HAD SUPPLIED ASSETS TO ITS SUBSIDIARIES IN RETURN FOR STOCK
VALUED AT AMOUNTS EQUAL TO THE VALUE OF THE ASSETS, NO QUESTION COULD
BE RAISED AS TO THE REALITY OF OWNERSHIP OF THE ASSETS BY THE
SUBSIDIARIES.  AIRCO WOULD THEN HAVE BEEN IN A POSITION COMPARABLE, SO
FAR AS OWNERSHIP OF THE ASSETS OF PETITIONERS IS CONCERNED, TO THAT OF
THE SOLE STOCKHOLDER IN MOLINE PROPERTIES.  WE THINK THAT IT CAN MAKE
NO DIFFERENCE THAT FINANCING OF THE SUBSIDIARIES WAS CARRIED OUT BY
MEANS OF BOOK INDEBTEDNESSES IN LIEU OF INCREASED BOOK VALUE OF THE
SUBSIDIARIES' STOCK.  A CORPORATION MUST DERIVE ITS FUNDS FROM THREE
SOURCES:  CAPITAL CONTRIBUTIONS, LOANS, AND PROFITS FROM OPERATIONS. 
THE FACT THAT AIRCO, THE SOLE STOCKHOLDER, PREFERRED TO SUPPLY FUNDS TO
ITS SUBSIDIARIES PRIMARILY BY THE SECOND METHOD, RATHER THAN EITHER OF
THE OTHER TWO,  FN15  DOES NOT MAKE THE INCOME EARNED BY THEIR
UTILIZATION INCOME TO AIRCO.  WE NEED NOT DECIDE WHETHER THE FUNDS
SUPPLIED TO PETITIONERS BY AIRCO WERE CAPITAL CONTRIBUTIONS RATHER THAN
LOANS.  IT IS SUFFICIENT TO SAY THAT THE VERY FACTORS WHICH, AS
PETITIONERS CONTEND, SHOW THAT AIRCO "SUPPLIED" AND "FURNISHED" THEIR
ASSETS ALSO INDICATE THAT PETITIONERS WERE THE RECIPIENTS OF CAPITAL
CONTRIBUTIONS RATHER THAN LOANS.  FN16 

NOR DO THE CONTRACTS BETWEEN AIRCO AND PETITIONERS BY WHICH THE
LATTER AGREED TO PAY ALL PROFITS ABOVE A NOMINAL RETURN TO THE FORMER,
ON THAT ACCOUNT, BECOME "AGENCY" CONTRACTS WITHIN THE MEANING OF OUR
DECISIONS.  THE TAX COURT FELT THAT THE FACT THAT AIRCO WAS ENTITLED TO
THE PROFITS BY CONTRACT SHOWS THAT THE INCOME "BELONGED TO AIRCO" AND
SHOULD NOT, FOR THAT REASON, BE TAXED TO PETITIONERS.  OUR DECISIONS
REQUIRING THAT INCOME BE TAXED TO THOSE WHO EARN IT, DESPITE
ANTICIPATORY AGREEMENTS DESIGNED TO PREVENT VESTING OF THE INCOME IN
THE EARNERS, FORECLOSE THIS RESULT.  LUCAS V. EARL, 281 U.S. 111(1930);
HELVERING V. CLIFFORD, 309 U.S. 331(1940); UNITED STATES V. JOLIET &
CHICAGO R. CO., 315 U.S. 44(1942); COMMISSIONER V. SUNNEN, 333 U.S.
591(1948).  OF COURSE ONE OF THE DUTIES OF A COLLECTION AGENT IS TO
TRANSMIT THE MONEY HE RECEIVES TO HIS PRINCIPAL ACCORDING TO THEIR
AGREEMENT.  FN17  BUT THE FACT THAT PETITIONERS WERE REQUIRED BY
CONTRACT TO TURN OVER THE MONEY RECEIVED BY THEM TO AIRCO, AFTER
DEDUCTING EXPENSES AND NOMINAL PROFITS, IS NO SURE INDICATION THAT THEY
WERE MERE COLLECTION AGENTS.  SUCH AN AGREEMENT IS ENTIRELY CONSISTENT
WITH THE CORPORATION-SOLE STOCKHOLDER RELATIONSHIP WHETHER OR NOT ANY
AGENCY EXISTS, AND WITH OTHER RELATIONSHIPS AS WELL.  FN18 

WHAT WE HAVE SAID DOES NOT FORECLOSE A TRUE CORPORATE AGENT OR
TRUSTEE FROM HANDLING THE PROPERTY AND INCOME OF ITS OWNER-PRINCIPAL
WITHOUT BEING TAXABLE THEREFOR.  WHETHER THE CORPORATION OPERATES IN
THE NAME AND FOR THE ACCOUNT OF THE PRINCIPAL, BINDS THE PRINCIPAL BY
ITS ACTIONS, TRANSMITS MONEY RECEIVED TO THE PRINCIPAL, AND WHETHER
RECEIPT OF INCOME IS ATTRIBUTABLE TO THE SERVICES OF EMPLOYEES OF THE
PRINCIPAL AND TO ASSETS BELONGING TO THE PRINCIPAL  FN19  ARE SOME OF
THE RELEVANT CONSIDERATIONS IN DETERMINING WHETHER A TRUE AGENCY
EXISTS.  IF THE CORPORATION IS A TRUE AGENT, ITS RELATIONS WITH ITS
PRINCIPAL MUST NOT BE DEPENDENT UPON THE FACT THAT IT IS OWNED BY THE
PRINCIPAL, IF SUCH IS THE CASE.  ITS BUSINESS PURPOSE MUST BE THE
CARRYING ON OF THE NORMAL DUTIES OF AN AGENT.  FN20  ABSENCE OF THE
FACTORS MENTIONED ABOVE, AND THE ESSENTIALITY OF OWNERSHIP OF THE
CORPORATION TO THE EXISTENCE OF ANY "AGENCY" RELATIONSHIP IN THE MOLINE
PROPERTIES, COMMONWEALTH IMPROVEMENT CO., AND SOUTHERN PACIFIC CASES,
INDICATE THE FALLACY OF THE AGENCY ARGUMENT MADE IN THOSE CASES. 

THE SAME FALLACY IS APPARENT IN THE CONTENTION THAT PETITIONERS ARE
AGENTS OF AIRCO.  THEY CLAIM THAT THEY SHOULD BE TAXABLE ON NET INCOME
AGGREGATING ONLY $1,350, DESPITE THE FACT THAT DURING THE TAX YEAR
(1938) THEY OWNED ASSETS WORTH NEARLY 20 MILLION DOLLARS, HAD NET SALES
OF APPROXIMATELY 22 MILLION DOLLARS, AND EARNED NEARLY FOUR AND ONE
HALF MILLION DOLLARS NET.  THEIR EMPLOYEES NUMBER IN THE THOUSANDS.  WE
HAVE PASSED THE QUESTION WHETHER AIRCO'S INTEREST IN THESE ASSETS IS
THAT OF OWNER OF THE SUBSIDIARIES OR LENDER, BUT WHATEVER THE ANSWER,
THEY DO NOT BELONG TO AIRCO AS PRINCIPAL.  THE ENTIRE EARNINGS OF
PETITIONERS, EXCEPT FOR TRIFLING AMOUNTS, ARE TURNED OVER TO AIRCO NOT
BECAUSE THE LATTER COULD COMMAND THIS INCOME IF PETITIONERS WERE OWNED
BY THIRD PERSONS, BUT BECAUSE IT OWNS AND THUS COMPLETELY DOMINATES THE
SUBSIDIARIES.  AIRCO, FOR SUFFICIENT REASONS OF ITS OWN, WISHED TO
AVOID THE BURDENS OF PRINCIPALSHIP.  FN21  SEE MOLINE PROPERTIES, INC.
V. COMMISSIONER, SUPRA; SHELDON BUILDING CORP. V. COMMISSIONER, 118
F.2D 835(1941).  COMPARE FORSHAY V. COMMISSIONER, 20 B.T.A. 537(1930). 
IT CANNOT NOW ESCAPE THE TAX CONSEQUENCES OF THAT CHOICE, NO MATTER HOW
BONA FIDE ITS MOTIVES OR LONGSTANDING ITS ARRANGEMENTS.  WHEN WE
REFERRED TO THE "USUAL INCIDENTS OF AN AGENCY RELATIONSHIP" IN THE
MOLINE PROPERTIES CASE, WE MEANT JUST THAT - NOT THE IDENTITY OF
OWNERSHIP AND CONTROL DISCLOSED BY THE FACTS OF THIS CASE. 

WE HAVE CONSIDERED THE OTHER ARGUMENTS MADE BY PETITIONERS AND FIND
THEM TO BE WITHOUT MERIT.  THE JUDGMENT OF THE COURT OF APPEALS IS
AFFIRMED. 

FN1  THE SUBSTANCE OF A TYPICAL SUBSIDIARY-PARENT CONTRACT IS AS
FOLLOWS:  "AIRCO HEREBY EMPLOYS SALES AS ITS AGENT TO MANAGE AND
OPERATE, DURING THE TERM OF THIS CONTRACT, ALL PLANTS FOR THE
PRODUCTION OF OXYGEN, ACETYLENE AND OTHER GASES AND FOR THE MANUFACTURE
OF APPARATUS AND CONTAINERS FOR THE UTILIZATION AND TRANSPORTATION OF
SUCH GASES  ...  ; AND LIKEWISE EMPLOYS SALES AS ITS AGENT TO MARKET
AND SELL, DURING THE TERM OF THIS CONTRACT, THE OUTPUT OF ALL SUCH
PLANTS.  ...  AIRCO AGREES (1) TO GIVE SALES THE USE OF ALL CYLINDERS,
CONTAINERS, MOTOR TRUCKS, EQUIPMENT, AND SHIPPING FACILITIES, WHICH IT
NOW OWNS OR MAY HEREAFTER ACQUIRE; (2) TO SUPPLY SUCH WORKING CAPITAL
AS SALES MAY NEED; (3) TO PROVIDE SUCH EXECUTIVE MANAGEMENT (BUT NOT
ACCOUNTING, BOOKKEEPING AND CLERICAL SERVICE), AND OFFICE ACCOMMODATION
AND FACILITIES, AS MAY BE NECESSARY FOR THE PROPER CONDUCT OF SALES
BUSINESS  ...  SALES AGREES (1) TO MANAGE AND OPERATE ...  ALL OF SAID
PLANTS; (2) TO MAINTAIN THE SAME IN FIRST CLASS CONDITION, CHARGING
NECESSARY REPAIRS AND REPLACEMENTS TO OPERATING EXPENSE AND SETTING
ASIDE AND CHARGING TO OPERATING EXPENSE PROPER RESERVES FOR
DEPRECIATION  ...  (3) TO DISTRIBUTE, MARKET AND SELL, THE PRODUCT
MANUFACTURED IN SAID PLANTS AS EFFICIENTLY AS POSSIBLE  ...  (4) TO PAY
ALL EXPENSES OF SUCH OPERATION, MAINTENANCE AND SELLING, AND TO
DISCHARGE ALL EXPENSES OR LIABILITIES INCURRED THEREIN OR THEREBY AND
TO COLLECT ALL ACCOUNTS RECEIVABLE OR OTHER PROCEEDS RESULTING
THEREFROM; (5) TO CREDIT MONTHLY ON ITS BOOKS TO AIRCO ALL PROFITS
ACCRUING TO IT FROM THE OPERATION OF ITS ENTIRE BUSINESS OVER AND ABOVE
AN AMOUNT EQUAL TO SIX PER CENT (6%) PER ANNUM ON ITS OUTSTANDING
CAPITAL STOCK, WHICH SAID AMOUNT IT IS HEREBY AUTHORIZED TO DEDUCT AND
RETAIN, AND IT HEREBY AGREES TO ACCEPT AS FULL COMPENSATION FOR ITS
SERVICES HEREUNDER; AND (6) TO PAY OVER TO AIRCO UPON DEMAND ANY
PROFITS BECOMING DUE AND CREDITED TO AIRCO AS AFORESAID." 

FN2  WILSON WELDER HAD A NET DEFICIT DURING THE YEAR HERE INVOLVED
AND IS NOT A PETITIONER IN THIS ACTION. 

FN3  SALES HAD OUTSTANDING 125 SHARES OF STOCK OF $100 PAR VALUE;
CARBIDE'S OUTSTANDING CAPITAL STOCK WAS 50 SHARES OF $100 PAR VALUE;
CARBONIC ALSO HAD 50 SHARES OF $100 PAR VALUE. 

FN4  MERTENS, LAW OF FEDERAL INCOME TAXATION (1948 ED.), VOL. 10A, P.
237. 

FN5  FINKELSTEIN, THE CORPORATE ENTITY AND THE INCOME TAX, 44 YALE
L.J. 436, 448. 

FN6  IN BALLANTINE, SEPARATE ENTITY OF PARENT AND SUBSIDIARY
CORPORATIONS, 14 CAL. L. REV. 12, 18, THE WRITER DISCUSSES THIS USE OF
THE AGENCY CONCEPT AS FOLLOWS:  "WHAT IS MEANT BY SUCH TERMS AS
'ADJUNCT,' 'AGENCY,' 'INSTRUMENTALITY,' 'CREATURE' OR 'MOUTHPIECE'? 
WHAT CONDITIONS MUST EXIST TO WARRANT A COURT IN TREATING THE A
CORPORATION AS THE MERE ADJUNCT OF THE B CORPORATION?  THE WORD
'AGENCY' IS OFTEN USED AS A SYNONYM OF 'ADJUNCT,' WHATEVER THAT MAY
MEAN, AND AS DESCRIPTIVE OF A RELATION VARIOUSLY DEFINED IN THE CASES
AS 'ALTER EGO,' 'ALIAS,' 'DEVICE,' 'DUMMY,' 'BRANCH,' 'TOOL,'
'CORPORATE DOUBLE,' 'BUSINESS CONDUIT,' 'INSTRUMENTALITY,' ETC., BUT
ALL IN THE SENSE OF 'MEANS' THROUGH WHICH A CORPORATION'S OWN BUSINESS
IS ACTIVELY PROSECUTED." 

FN7  THE CASE OTHER THAN SOUTHERN PACIFIC RELIED UPON BY THE TAX
COURT WAS MUNSON STEAMSHIP LINE V. COMMISSIONER, 77 F.2D 849.  THAT
CASE WAS EXPLAINED IN MOLINE PROPERTIES, INC. V. COMMISSIONER, SUPRA,
AS DEPENDING UPON A PARTICULAR LEGISLATIVE PURPOSE WHICH JUSTIFIED
DISREGARDING THE SEPARATE ENTITY. 

FN8  PLAINTIFF'S EXHIBIT P, NO. 452, OCTOBER TERM 1917, IS AN INCOME
TAX STATEMENT OF THE SUBSIDIARY, CENTRAL PACIFIC CO., SHOWING PAYMENT
OF INCOME TAXES ON $3,333,846.18, ITS TOTAL NET INCOME FOR 1913 LESS
ONE-SIXTH (I.E., MAKING AN ALLOWANCE FOR THE TWO MONTHS BEFORE THE
INCOME TAX LAW WENT INTO EFFECT MARCH 1). 

FN9  319 U.S. AT 440-441. 

FN10  8 T.C. 594, 611.  AFTER ENUMERATING THE FACTS CONSIDERED
PERTINENT, THE COURT CONCLUDED: "IT IS TRUE, OF COURSE, THAT, TAKEN
SEPARATELY, SOME OF THE FOREGOING FACTS WOULD NOT BE SUFFICIENT IN
THEMSELVES TO MAKE INOPERATIVE THE GENERAL RULE THAT CORPORATIONS ARE
SEPARATE JURISTIC PERSONS AND ARE TO BE SO TREATED FOR TAX PURPOSES. 
WE THINK, HOWEVER, THAT WHEN ALL THESE FACTS ARE VIEWED TOGETHER THEY
BRING PETITIONERS WITHIN THE RULE ANNOUNCED BY THE SUPREME COURT IN
SOUTHERN PACIFIC CO. V. LOWE, SUPRA."  ID. AT 614. 

IT SHOULD BE ADDED THAT THE COURT OF APPEALS, WHOSE OPINION WAS
WRITTEN BY ITS CHIEF JUDGE, DID NOT SO MUCH AS MENTION THE AGENCY
ARGUMENT NOW MADE BY PETITIONERS.  ITS ONLY REFERENCES TO AGENCY WERE
ISOLATED QUOTATIONS FROM THE TAX COURT'S OPINION AND THE CONTRACTS
QUOTED IN FOOTNOTE 1.  THE COURT'S OPINION PHRASES THE QUESTION AS
"WHEN A WHOLLY OWNED SUBSIDIARY OF A PARENT CORPORATION SHALL BE
TREATED FOR PURPOSES OF INCOME TAXATION AS A SEPARATE TAXABLE PERSON,
AND WHEN AS MERELY A PART OF THE CORPORATE ACTIVITIES OF THE PARENT." 
167 F.2D 304, 305. 

FN11  ID. AT 307. 

FN12  TWO BASIC DISTINCTIONS BETWEEN THE SOUTHERN PACIFIC CASE AND
SUBSEQUENT CASES (EXCEPT GULF OIL CO. V. LEWELLYN, 248 U.S. 71(1918),
WHICH FOLLOWED SOUTHERN PACIFIC) ARE IMMEDIATELY APPARENT.  FIRST, THE
SOUTHERN PACIFIC CASE INVOLVED TAXATION OF THE PARENT-OWNER RATHER THAN
THE SUBSIDIARY CORPORATION; SECOND, THE QUESTION WAS WHEN THE INCOME
HAD BEEN EARNED, RATHER THAN WHO HAD EARNED IT.  THE IMPORTANCE OF
THESE DISTINCTIONS IS INDICATED BY THE FACT THAT THE SUBSIDIARY PAID
INCOME TAXES UPON INCOME RECEIVED SUBSEQUENT TO MARCH 1, 1913(SEE
FOOTNOTE 8, SUPRA), AND THAT THE PARENT DID NOT DISPUTE ITS TAX
LIABILITY FOR DIVIDENDS FROM POST-1913 EARNINGS OF THE SUBSIDIARY.  THE
DECISION IS BASED ON AN INTERPRETATION OF THE INCOME TAX ACT OF 1913. 
THE COURT FELT THAT IT WAS NOT THE INTENT OF THE ACT TO TAX EARNINGS
PRIOR TO THE EFFECTIVE DATE OF THE ACT, AND THAT THE CENTRAL PACIFIC'S
PRE-1913 INCOME HAD ACTUALLY ACCRUED TO THE PARENT BEFORE THE EFFECTIVE
DATE OF THE ACT.  THE OPINION STATES THAT "THE CASE TURNS UPON ITS VERY
PECULIAR FACTS, AND IS DISTINGUISHABLE FROM OTHERS IN WHICH THE
QUESTION OF THE IDENTITY OF A CONTROLLING STOCKHOLDER WITH HIS
CORPORATION HAS BEEN RAISED."  247 U.S. AT 338-339.  BY ITS VERY TERMS,
THE DECISION IS LIMITED TO ITS PRECISE FACTS. 

FN13  MUCH OF THE TESTIMONY INTRODUCED BY PETITIONERS HAD TO DO WITH
THE INTERCORPORATE RELATIONSHIP BETWEEN AIRCO AND ITS SUBSIDIARIES, THE
USE OF CERTAIN FACILITIES BY TWO OR MORE OF THE SUBSIDIARIES, THE
DUTIES OF VARIOUS OFFICERS WHO HELD POSITIONS WITH AIRCO AND ITS
SUBSIDIARIES, AND THE SERVICES PERFORMED FOR ALL OF THE SUBSIDIARIES BY
CERTAIN DEPARTMENTS OF AIRCO.  SO FAR AS THIS TESTIMONY SHOWS THE
INTEGRATION OF THE CORPORATE SYSTEM AND ITS DIRECTION BY AIRCO, IT IS,
AS WE HAVE INDICATED, IMMATERIAL.  SO FAR AS IT INDICATES THAT THE
SUBSIDIARIES RECEIVED THE USE OF EQUIPMENT AND SERVICES FOR WHICH THEY
WERE NOT CHARGED, IT IS RELEVANT AS SHOWING THAT THEIR INCOME WAS
DISTORTED TO THAT EXTENT, BUT IT DOES NOT INDICATE THAT THE INCOME
RECEIVED "BELONGED" TO AIRCO AT THE TIME OF ITS RECEIPT.  THE
COMMISSIONER MADE ALLOWANCE FOR THIS DISTORTION BY ALLOCATING OVER
$400,000 OF THE EXPENSES REPORTED BY AIRCO TO PETITIONERS UNDER THE
AUTHORITY GIVEN HIM BY SEC. 45 OF THE REVENUE ACT OF 1938, 26 U.S.C.
SEC. 45.    FN14  45 B.T.A. 647, 650.    FN15  AS A PRACTICAL MATTER, A
CONSIDERABLE PART OF THE ASSETS OF PETITIONERS WAS SUPPLIED OUT OF
PROFITS FROM THEIR OPERATIONS.  EVEN THOUGH ASSETS WERE PURCHASED
DIRECTLY OUT OF THE EARNINGS OF A SUBSIDIARY, HOWEVER, THE AMOUNT
WITHDRAWN WAS ENTERED IN THE ACCOUNTS PAYABLE BY THE SUBSIDIARY AND IN
THE ACCOUNTS RECEIVABLE OF AIRCO, SINCE SUBSTANTIALLY ALL PROFITS OF
THE SUBSIDIARIES WERE, BY CONTRACT, PAYABLE ONLY TO THE PARENT. 

FN16  SINCE PETITIONERS WERE REQUIRED TO PAY ALL PROFITS EXCEPT VERY
SMALL AMOUNTS TO AIRCO EACH YEAR, IT WAS OBVIOUSLY IMPOSSIBLE FOR THEM
TO PAY THE ACCOUNTS PAYABLE TO AIRCO.  SEE NOTE 15.  MR. C. E. ADAMS,
CHAIRMAN OF AIR REDUCTION CORPORATION, TESTIFIED THAT THE ASSETS OF THE
SUBSIDIARIES REPRESENTED BY THE ACCOUNTS PAYABLE COULD BE REALIZED BY
AIRCO ONLY UPON DISSOLUTION OF THE SUBSIDIARIES.  IN OTHER WORDS, THERE
WAS NEVER ANY EXPECTATION THAT THE ACCOUNTS WOULD BE PAID PRIOR TO
DISSOLUTION.  SINCE NO INTEREST RAN ON THESE ACCOUNTS, THE "LOANS" WERE
IDENTICAL, EXCEPT IN NAME, WITH CONTRIBUTIONS OF CAPITAL.  SEE AMERICAN
CIGAR CO. V. COMMISSIONER, 66 F.2D 425; HOYT V. COMMISSIONER, 145 F.2D
634; VAN CLIEF V. HELVERING, 135 F.2D 254; READING CO. V. COMMISSIONER,
132 F.2D 306.  LEVY AND SIMONDS, STOCKHOLDER ADVANCES TO CORPORATIONS -
ARE THEY LOANS OR CAPITAL CONTRIBUTIONS?  25 TAXES 127, 128, STATE THAT
"INTENTION TO LEND AND EXPECTATION OF REPAYMENT ARE NECESSARY TO THE
EXISTENCE OF A VALID DEBT."  THE FACT THAT NO INTEREST RAN ON THESE
"LOANS" IS, OF COURSE, FURTHER INDICATION THAT THEY ARE CAPITAL
CONTRIBUTIONS.  BERRY MOTOR CAR CO., B.T.A. MEMO.  OP. DKT. 99962, JAN.
25, 1941. 

TITLE TO GAS CYLINDERS USED BY PETITIONERS, AMOUNTING IN VALUE TO
ABOUT $13,000,000, WAS RETAINED BY AIRCO, BUT THE CYLINDERS WERE USED
BY THE SUBSIDIARIES WITHOUT CHARGE.  WHETHER THESE, TOO, WERE CAPITAL
CONTRIBUTIONS WE FIND IT UNNECESSARY TO DECIDE IN THIS CASE.  FREE USE
OF THE CYLINDERS BY PETITIONERS, IF THEY WERE MERELY ON LOAN, MAY HAVE
DISTORTED THE SUBSIDIARIES' INCOME BEYOND THE ALLOCATIONS MADE BY THE
COMMISSIONER, BUT THAT PROBLEM IS NOT BEFORE US. 

FN17  RESTATEMENT OF AGENCY, SEC. 427. 

FN18  IN UNITED STATES V. JOLIET & CHICAGO R. CO., 315 U.S. 44(1942),
A LESSEE RAILROAD AGREED TO PAY RENTAL PAYMENTS TO THE LESSOR'S
STOCKHOLDERS DIRECTLY.  THE LESSOR THEREAFTER CARRIED ON NO ACTIVE
BUSINESS.  IT WAS NEVERTHELESS HELD TAXABLE ON THE INCOME RECEIVED BY
ITS STOCKHOLDERS, SINCE THEY RECEIVED THE PAYMENTS ONLY BECAUSE THEY
HELD ITS STOCK. 

FN19  ART. 22(A)-1 OF TREASURY REGULATIONS 101, PROMULGATED UNDER THE
REVENUE ACT OF 1938, PROVIDES: 

"ART. 22(A)-1.  WHAT INCLUDED IN GROSS INCOME.  - GROSS INCOME
INCLUDES IN GENERAL COMPENSATION FOR PERSONAL AND PROFESSIONAL
SERVICES, BUSINESS INCOME, PROFITS FROM SALES OF AND DEALINGS IN
PROPERTY, INTEREST, RENT, DIVIDENDS, AND GAINS, PROFITS, AND INCOME
DERIVED FROM ANY SOURCE WHATEVER, UNLESS EXEMPT FROM TAX BY LAW.  (SEE
CAPITAL, FROM LABOR, OR FROM BOTH COMBINED, PROVIDED IT BE UNDERSTOOD
TO INCLUDE PROFIT GAINED THROUGH A SALE OR CONVERSION OF CAPITAL
ASSETS.  ..."  SEE EISNER V. MACOMBER, 252 U.S. 189, 207(1920);
MERCHANTS' LOAN & TRUST CO. V. SMIETANKA, 255 U.S. 509, 519(1921). 

IN THE CASE OF A SUBSIDIARY WHO SUPPLIES THE LABOR AND THE CAPITAL
WITH WHICH THE INCOME IS EARNED, AS IS TRUE OF PETITIONERS HERE, IT CAN
HARDLY BE CONTENDED THAT IT DID NOT EARN THE INCOME. 

FN20  OF COURSE EVEN A CORPORATION WHICH SATISFIES THE USUAL TESTS OF
AGENCY MAY BE DISREGARDED BY THE COMMISSIONER IF IT IS A SHAM OR
UNREAL.  HIGGINS V. SMITH, 308 U.S. 473(1940); GREGORY V. HELVERING,
293 U.S. 465(1935).  ESCAPING TAXATION IS NOT A "BUSINESS" ACTIVITY. 
SEE NATIONAL INVESTORS CORP. V. HOEY, 144 F.2D 466. 

FN21  THE TWO MAIN PURPOSES FOR THE ADOPTION BY AIRCO OF THE
CORPORATE SUBSIDIARY METHOD OF OPERATION, AS RELATED BY MR. C. E.
ADAMS, CHAIRMAN OF AIR REDUCTION CORP., WERE THESE: 

"FRANKLY, IN 1918 AND STILL, AIR REDUCTION, INC., WAS AND IS A NEW
YORK CORPORATION.  EVEN AT THAT EARLY DATE IT BECAME EVIDENT, AS I
ALREADY SAID, WE WERE GOING TO HAVE PLANTS SCATTERED ALL OVER THE
UNITED STATES.  WE DIDN'T WANT TO DOMICILE THE PARENT COMPANY IN 48
STATES OF THE UNION AND HAVE US SUBJECT TO SERVICE IN ALL THOSE STATES,
THAT IS, HAVE THE PARENT COMPANY SUBJECT TO SERVICE IN ALL THOSE
STATES, AND THAT WAS DISTINCTLY A REASON FOR USING THIS CORPORATE SETUP
IN CONNECTION WITH OPERATIONS TO BE RUN AS DIVISIONS, JUST AS THE
CONTRACT SETS FORTH. 

"NOW, IN ADDITION TO THAT, AS A PRACTICAL MATTER, OUT IN THE FIELD
AND ON THE FIRING LINE, TO HAVE A REPRESENTATIVE, AN OFFICER, WE WILL
SAY, OF PURE CARBONIC, WHEN TROUBLE ARISES WITH A CUSTOMER, A VICE
PRESIDENT OF PURE CARBONIC, WHO IS NOT AN OFFICER OF AIR REDUCTON,
INC., AT ALL, WHO GOES IN AND STRAIGHTENS THAT OUT WITH THAT CUSTOMER,
INCREASES HIS CUDOS, HELPS HIM WITH ALL HIS NEGOTIATING EFFORTS, WITH
THEIR COMPETITORS ON THE OUTSIDE." 

IT IS THUS APPARENT THAT AIRCO WAS ATTEMPTING TO AVOID THE STATUS OF
PRINCIPAL VIS-A-VIS ITS SUBSIDIARIES.  AS PRINCIPAL IT WOULD HAVE BEEN
SUBJECT TO SERVICE OF PROCESS THROUGH ITS AGENTS; AS OWNER OF THE
SUBSIDIARY IT WAS NOT.  SEE PETERSON V. CHICAGO, R.I. & P.R. CO., 205
U.S. 364, 391(1907); CANNON MFG. CO. V. CUDAHY CO., 267 U.S.
333(1925).  THE PURPOSE OF HAVING OFFICERS OF SUBSIDIARIES WHO COULD
DEAL DIRECTLY WITH CUSTOMERS DOES NOT INDICATE AN AGENCY RELATIONSHIP. 
ON THE CONTRARY, THE VERY PURPOSE OF THE ORGANIZATION ADOPTED WAS TO
LEAD CUSTOMERS TO BELIEVE THAT THEY WERE DEALING WITH TOP MEN IN THE
COMPANY ACTUALLY MANUFACTURING AND SELLING THE PRODUCTS THEY
PURCHASED. 
..END :





















KRULEWITCH V. UNITED STATES, 336 U.S. 440 


NO. 143.  ARGUED JANUARY 10, 1949.  - DECIDED MARCH 28, 1949.  - 167
F.2D 943, REVERSED. 


PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT FOR INDUCING A
WOMAN (THE COMPLAINING WITNESS) TO GO FROM NEW YORK TO FLORIDA FOR THE
PURPOSE OF PROSTITUTION, TRANSPORTING HER FROM NEW YORK TO MIAMI FOR
THAT PURPOSE, AND CONSPIRING WITH ANOTHER WOMAN TO COMMIT THOSE
OFFENSES.  AT HIS TRIAL, THERE WAS ADMITTED IN EVIDENCE OVER HIS
OBJECTION TESTIMONY CONCERNING A STATEMENT MADE BY THE CO-CONSPIRATOR
TO THE COMPLAINING WITNESS MORE THAN SIX WEEKS AFTER THE TRANSPORTATION
TO MIAMI HAD BEEN COMPLETED, WHICH IMPLIED THAT PETITIONER WAS GUILTY
AND SUGGESTED CONCEALING HIS GUILT.  HELD: 

1.  THE HEARSAY DECLARATION ATTRIBUTED TO THE CO-CONSPIRATOR WAS NOT
ADMISSIBLE ON THE GROUND THAT IT WAS MADE IN FURTHERANCE OF THE
CONSPIRACY TO TRANSPORT.  PP. 441-443. 

2.  NOR WAS IT ADMISSIBLE ON THE GROUND THAT IT WAS IN FURTHERANCE OF
A CONTINUING SUBSIDIARY PHASE OF THE CONSPIRACY - I.E., AN IMPLIED
AGREEMENT TO CONCEAL THE CRIME.  PP. 443-444. 

3.  SINCE IT CANNOT BE SAID ON THE RECORD IN THIS CASE THAT THE
ERRONEOUS ADMISSION OF THE HEARSAY DECLARATION MAY NOT HAVE TIPPED THE
SCALES AGAINST PETITIONER, IT CANNOT BE CONSIDERED A HARMLESS ERROR
UNDER 28 U.S.C. (1946 ED.)  SEC.  391; AND THE CONVICTION IS REVERSED. 
PP. 444-445. 

KRULEWITCH V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT OF VIOLATIONS OF
THE MANN ACT AND OF CONSPIRACY TO COMMIT THOSE OFFENSES, 18 U.S.C.
SECS. 88, 398, 399(NOW 18 U.S.C. SECS. 371, 2421, 2422).  THE COURT OF
APPEALS AFFIRMED.  167 F.2D 943.  THIS COURT GRANTED CERTIORARI.  335
U.S. 811.  REVERSED, P. 445. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A FEDERAL DISTRICT COURT INDICTMENT CHARGED IN THREE COUNTS THAT
PETITIONER AND A WOMAN DEFENDANT HAD (1) INDUCED AND PERSUADED ANOTHER
WOMAN TO GO ON OCTOBER 20, 1941, FROM NEW YORK CITY TO MIAMI, FLORIDA,
FOR THE PURPOSE OF PROSTITUTION, IN VIOLATION OF 18 U.S.C. SEC. 399(NOW
SEC. 2422); (2) TRANSPORTED OR CAUSED HER TO BE TRANSPORTED FROM NEW
YORK TO MIAMI FOR THAT PURPOSE, IN VIOLATION OF 18 U.S.C. SEC. 398(NOW
SEC. 2421); AND (3) CONSPIRED TO COMMIT THOSE OFFENSES IN VIOLATION OF
18 U.S.C. SEC. 88(NOW SEC. 371).  TRIED ALONE, THE PETITIONER WAS
CONVICTED ON ALL THREE COUNTS OF THE INDICTMENT.  THE COURT OF APPEALS
AFFIRMED.  167 F.2D 943.  AND SEE DISPOSITION OF PRIOR APPEAL, 145 F.2D
76.  WE GRANTED CERTIORARI LIMITING OUR REVIEW TO CONSIDERATION OF
ALLEGED ERROR IN ADMISSION OF CERTAIN HEARSAY TESTIMONY AGAINST
PETITIONER OVER HIS TIMELY AND REPEATED OBJECTIONS. 

THE CHALLENGED TESTIMONY WAS ELICITED BY THE GOVERNMENT FROM ITS
COMPLAINING WITNESS, THE PERSON WHOM PETITIONER AND THE WOMAN DEFENDANT
ALLEGEDLY INDUCED TO GO FROM NEW YORK TO FLORIDA FOR THE PURPOSE OF
PROSTITUTION.  THE TESTIMONY NARRATED THE FOLLOWING PURPORTED
CONVERSATION BETWEEN THE COMPLAINING WITNESS AND PETITIONER'S ALLEGED
CO-CONSPIRATOR, THE WOMAN DEFENDANT. 

"SHE ASKED ME, SHE SAYS, 'YOU DIDN'T TALK YET?'  AND I SAYS, 'NO.' 
AND SHE SAYS, 'WELL, DON'T,' SHE SAYS, 'UNTIL WE GET YOU A LAWYER.' 
AND THEN SHE SAYS, 'BE VERY CAREFUL WHAT YOU SAY.'  AND I CAN'T PUT IT
IN EXACT WORDS.  BUT SHE SAID, 'IT WOULD BE BETTER FOR US TWO GIRLS TO
TAKE THE BLAME THAN KAY (THE DEFENDANT) BECAUSE HE COULDN'T STAND IT,
HE COULDN'T STAND TO TAKE IT.'" 

THE TIME OF THE ALLEGED CONVERSATION WAS MORE THAN A MONTH AND A HALF
AFTER OCTOBER 20, 1941, THE DATE THE COMPLAINING WITNESS HAD GONE TO
MIAMI.  WHATEVER ORIGINAL CONSPIRACY MAY HAVE EXISTED BETWEEN
PETITIONER AND HIS ALLEGED CO-CONSPIRATOR TO CAUSE THE COMPLAINING
WITNESS TO GO TO FLORIDA IN OCTOBER, 1941, NO LONGER EXISTED WHEN THE
REPORTED CONVERSATION TOOK PLACE IN DECEMBER, 1941.  FOR ON THIS LATTER
DATE THE TRIP TO FLORIDA HAD NOT ONLY BEEN MADE - THE COMPLAINING
WITNESS HAD LEFT FLORIDA, HAD RETURNED TO NEW YORK, AND HAD RESUMED HER
RESIDENCE THERE.  FURTHERMORE, AT THE TIME THE CONVERSATION TOOK PLACE,
THE COMPLAINING WITNESS, THE ALLEGED CO-CONSPIRATOR, AND THE PETITIONER
HAD BEEN ARRESTED.  THEY APPARENTLY WERE CHARGED IN A UNITED STATES
DISTRICT COURT OF FLORIDA WITH THE OFFENSE OF WHICH PETITIONER WAS HERE
CONVICTED.  FN1 

IT IS BEYOND DOUBT THAT THE CENTRAL AIM OF THE ALLEGED CONSPIRACY -
TRANSPORTATION OF THE COMPLAINING WITNESS TO FLORIDA FOR PROSTITUTION -
HAD EITHER NEVER EXISTED OR HAD LONG SINCE ENDED IN SUCCESS OR FAILURE
WHEN AND IF THE ALLEGED CO-CONSPIRATOR MADE THE STATEMENT ATTRIBUTED TO
HER.  CF. LEW MOY V. UNITED STATES, 237 F. 50.  THE STATEMENT PLAINLY
IMPLIED THAT PETITIONER WAS GUILTY OF THE CRIME FOR WHICH HE WAS ON
TRIAL.  IT WAS MADE IN PETITIONER'S ABSENCE AND THE GOVERNMENT MADE NO
EFFORT WHATEVER TO SHOW THAT IT WAS MADE WITH HIS AUTHORITY.  THE
TESTIMONY THUS STANDS AS AN UNSWORN, OUT-OF-COURT DECLARATION OF
PETITIONER'S GUILT.  THIS HEARSAY DECLARATION, ATTRIBUTED TO A CO
CONSPIRATOR, WAS NOT MADE PURSUANT TO AND IN FURTHERANCE OF OBJECTIVES
OF THE CONSPIRACY CHARGED IN THE INDICTMENT, BECAUSE IF MADE, IT WAS
AFTER THOSE OBJECTIVES EITHER HAD FAILED OR HAD BEEN ACHIEVED.  UNDER
THESE CIRCUMSTANCES, THE HEARSAY DECLARATION ATTRIBUTED TO THE ALLEGED
CO-CONSPIRATOR WAS NOT ADMISSIBLE ON THE THEORY THAT IT WAS MADE IN
FURTHERANCE OF THE ALLEGED CRIMINAL TRANSPORTATION UNDERTAKING. 
FISWICK V. UNITED STATES, 329 U.S. 211, 216-217; BROWN V. UNITED
STATES, 150 U.S. 93, 98-99; GRAHAM V. UNITED STATES, 15 F.2D 740, 743. 

ALTHOUGH THE GOVERNMENT RECOGNIZES THAT THE CHIEF OBJECTIVE OF THE
CONSPIRACY - TRANSPORTATION FOR PROSTITUTION PURPOSES - HAD ENDED IN
SUCCESS OR FAILURE BEFORE THE REPORTED CONVERSATION TOOK PLACE, IT
NEVERTHELESS ARGUES FOR ADMISSIBILITY OF THE HEARSAY DECLARATION AS ONE
IN FURTHERANCE OF A CONTINUING SUBSIDIARY OBJECTIVE OF THE CONSPIRACY. 
ITS ARGUMENT RUNS THIS WAY.  CONSPIRATORS ABOUT TO COMMIT CRIMES ALWAYS
EXPRESSLY OR IMPLICITLY AGREE TO COLLABORATE WITH EACH OTHER TO CONCEAL
FACTS IN ORDER TO PREVENT DETECTION, CONVICTION AND PUNISHMENT.  THUS
THE ARGUMENT IS THAT EVEN AFTER THE CENTRAL CRIMINAL OBJECTIVES OF A
CONSPIRACY HAVE SUCCEEDED OR FAILED, AN IMPLICIT SUBSIDIARY PHASE OF
THE CONSPIRACY ALWAYS SURVIVES, THE PHASE WHICH HAS CONCEALMENT AS ITS
SOLE OBJECTIVE.  THE COURT OF APPEALS ADOPTED THIS VIEW.  IT VIEWED THE
ALLEGED HEARSAY DECLARATION AS ONE IN FURTHERANCE OF THIS CONTINUING
SUBSIDIARY PHASE OF THE CONSPIRACY, AS PART OF "THE IMPLIED AGREEMENT
TO CONCEAL."  167 F.2D 943, 948.  IT CONSEQUENTLY HELD THE DECLARATION
PROPERLY ADMITTED. 

WE CANNOT ACCEPT THE GOVERNMENT'S CONTENTION.  THERE ARE MANY LOGICAL
AND PRACTICAL REASONS THAT COULD BE ADVANCED AGAINST A SPECIAL
EVIDENTIARY RULE THAT PERMITS OUT-OF-COURT STATEMENTS OF ONE
CONSPIRATOR TO BE USED AGAINST ANOTHER.  BUT HOWEVER COGENT THESE
REASONS, IT IS FIRMLY ESTABLISHED THAT WHERE MADE IN FURTHERANCE OF THE
OBJECTIVES OF A GOING CONSPIRACY, SUCH STATEMENTS ARE ADMISSIBLE AS
EXCEPTIONS TO THE HEARSAY RULE.  THIS PREREQUISITE TO ADMISSIBILITY,
THAT HEARSAY STATEMENTS BY SOME CONSPIRATORS TO BE ADMISSIBLE AGAINST
OTHERS MUST BE MADE IN FURTHERANCE OF THE CONSPIRACY CHARGED, HAS BEEN
SCRUPULOUSLY OBSERVED BY FEDERAL COURTS.  THE GOVERNMENT NOW ASKS US TO
EXPAND THIS NARROW EXCEPTION TO THE HEARSAY RULE AND HOLD ADMISSIBLE A
DECLARATION, NOT MADE IN FURTHERANCE OF THE ALLEGED CRIMINAL
TRANSPORTATION CONSPIRACY CHARGED, BUT MADE IN FURTHERANCE OF AN
ALLEGED IMPLIED BUT UNCHARGED CONSPIRACY AIMED AT PREVENTING DETECTION
AND PUNISHMENT.  NO FEDERAL COURT CASE CITED BY THE GOVERNMENT SUGGESTS
SO HOSPITABLE A RECEPTION TO THE USE OF HEARSAY EVIDENCE TO CONVICT IN
CONSPIRACY CASES.  THE GOVERNMENT CONTENTION DOES FIND SUPPORT IN SOME
BUT NOT ALL OF THE STATE COURT OPINIONS CITED IN THE GOVERNMENT BRIEF. 
FN2  BUT IN NONE OF THEM DOES THERE APPEAR TO BE RECOGNITION OF ANY
SUCH BROAD EXCEPTION TO THE HEARSAY RULE AS THAT HERE URGED.  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. 

IT IS CONTENDED THAT THE STATEMENT ATTRIBUTED TO THE ALLEGED CO
CONSPIRATOR WAS MERELY CUMULATIVE EVIDENCE, THAT WITHOUT THE STATEMENT
THE CASE AGAINST PETITIONER WAS SO STRONG THAT WE SHOULD HOLD THE ERROR
HARMLESS UNDER 28 U.S.C. (1946 ED.)  SEC.  391.  IN KOTTEAKOS V. UNITED
STATES, 328 U.S. 750, WE SAID THAT ERROR SHOULD NOT BE HELD HARMLESS
UNDER THE HARMLESS ERROR STATUTE IF UPON CONSIDERATION OF THE RECORD
THE COURT IS LEFT IN GRAVE DOUBT AS TO WHETHER THE ERROR HAD
SUBSTANTIAL INFLUENCE IN BRINGING ABOUT A VERDICT.  WE HAVE SUCH DOUBT
HERE.  THE FLORIDA DISTRICT COURT GRAND JURY FAILED TO INDICT.  AFTER
INDICTMENT IN NEW YORK PETITIONER WAS TRIED FOUR TIMES WITH THE
FOLLOWING RESULTS:  MISTRIAL; CONVICTION; MISTRIAL; CONVICTION WITH
RECOMMENDATION FOR LENIENCY.  THE REVOLTING TYPE OF CHARGES MADE
AGAINST THIS PETITIONER BY THE COMPLAINING WITNESS MAKES IT DIFFICULT
TO BELIEVE THAT A JURY CONVINCED OF A STRONG CASE AGAINST HIM WOULD
HAVE RECOMMENDED LENIENCY.  THERE WAS CORROBORATIVE EVIDENCE OF THE
COMPLAINING WITNESS ON CERTAIN PHASES OF THE CASE.  BUT AS TO ALL VITAL
PHASES, THOSE INVOLVING THE SORDID CRIMINAL FEATURES, THE JURY WAS
COMPELLED TO CHOOSE BETWEEN BELIEVING THE PETITIONER OR THE COMPLAINING
WITNESS.  THE RECORD PERSUADES US THAT THE JURY'S TASK WAS DIFFICULT AT
BEST.  WE CANNOT SAY THAT THE ERRONEOUS ADMISSION OF THE HEARSAY
DECLARATION MAY NOT HAVE BEEN THE WEIGHT THAT TIPPED THE SCALES AGAINST
PETITIONER.  REVERSED. 

FN1  THE FLORIDA GRAND JURY FAILED TO INDICT AND THE CASES THERE WERE
CLOSED WITHOUT PROSECUTION IN FEBRUARY, 1942.  THE NEW YORK INDICTMENTS
WERE NOT RETURNED UNTIL JANUARY, 1943. 

FN2  COMMONWEALTH V. SMITH, 151 MASS. 491, 24 N.E. 677; PEOPLE V.
MOL, 137 MICH. 692, 707, 100 N.W. 913, 918; HOOPER V. STATE, 187 ARK.
88, 92, 58 S.W.2D 434, 435; STATE V. GAUTHIER, 113 ORE.  297, 307, 231
P. 141, 145; STATE V. EMORY, 116 KAN. 381, 384, 226 P. 754, 756; CARTER
V. STATE, 106 GA. 372, 376, 32 S.E. 345, 346-347; WATSON V. STATE, 166
MISS.  194, 213, 146 SO. 122, 127; BALDWIN V. STATE, 46 FLA. 115, 120
121, 35 SO. 220, 222; STATE V. STRAIT, 279 S.W. 109(MO.). 

MR. JUSTICE JACKSON, CONCURRING IN THE JUDGMENT AND OPINION OF THE
COURT. 

THIS CASE ILLUSTRATES A PRESENT DRIFT IN THE FEDERAL LAW OF
CONSPIRACY WHICH WARRANTS SOME FURTHER COMMENT BECAUSE IT IS
CHARACTERISTIC OF THE LONG EVOLUTION OF THAT ELASTIC, SPRAWLING AND
PERVASIVE OFFENSE.  ITS HISTORY EXEMPLIFIES THE "TENDENCY OF A
PRINCIPLE TO EXPAND ITSELF TO THE LIMIT OF ITS LOGIC."  FN1  THE
UNAVAILING PROTEST OF COURTS AGAINST THE GROWING HABIT TO INDICT FOR
CONSPIRACY IN LIEU OF PROSECUTING FOR THE SUBSTANTIVE OFFENSE ITSELF,
OR IN ADDITION THERETO, FN2  SUGGESTS THAT LOOSE PRACTICE AS TO THIS
OFFENSE CONSTITUTES A SERIOUS THREAT TO FAIRNESS IN OUR ADMINISTRATION
OF JUSTICE. 

THE MODERN CRIME OF CONSPIRACY IS SO VAGUE THAT IT ALMOST DEFIES
DEFINITION.  FN3  DESPITE CERTAIN ELEMENTARY AND ESSENTIAL ELEMENTS,
FN4  IT ALSO, CHAMELEON-LIKE, TAKES ON A SPECIAL COLORATION FROM EACH
OF THE MANY INDEPENDENT OFFENSES ON WHICH IT MAY BE OVERLAID.  FN5  IT
IS ALWAYS "PREDOMINANTLY MENTAL IN COMPOSITION" BECAUSE IT CONSISTS
PRIMARILY OF A MEETING OF MINDS AND AN INTENT.  FN6 

THE CRIME COMES DOWN TO US WRAPPED IN VAGUE BUT UNPLEASANT
CONNOTATIONS.  IT SOUNDS HISTORICAL UNDERTONES OF TREACHERY, SECRET
PLOTTING AND VIOLENCE ON A SCALE THAT MENACES SOCIAL STABILITY AND THE
SECURITY OF THE STATE ITSELF.  "PRIVY CONSPIRACY" RANKS WITH SEDITION
AND REBELLION IN THE LITANY'S PRAYER FOR DELIVERANCE.  CONSPIRATORIAL
MOVEMENTS DO INDEED LIE BACK OF THE POLITICAL ASSASSINATION, THE COUP
D'ETAT, THE PUTSCH, THE REVOLUTION, AND SEIZURES OF POWER IN MODERN
TIMES, AS THEY HAVE IN ALL HISTORY.  FN7 

BUT THE CONSPIRACY CONCEPT ALSO IS SUPERIMPOSED UPON MANY CONCERTED
CRIMES HAVING NO POLITICAL MOTIVATION.  IT IS NOT INTENDED TO QUESTION
THAT THE BASIC CONSPIRACY PRINCIPLE HAS SOME PLACE IN MODERN CRIMINAL
LAW, BECAUSE TO UNITE, BACK OF A CRIMINAL PURPOSE, THE STRENGTH,
OPPORTUNITIES AND RESOURCES OF MANY IS OBVIOUSLY MORE DANGEROUS AND
MORE DIFFICULT TO POLICE THAN THE EFFORTS OF A LONE WRONGDOER.  FN8  IT
ALSO MAY BE TRIVIALIZED, AS HERE, WHERE THE CONSPIRACY CONSISTS OF THE
CONCERT OF A LOATHSOME PANDERER AND A PROSTITUTE TO GO FROM NEW YORK TO
FLORIDA TO PLY THEIR TRADE (SEE 145 F.2D 76 FOR DETAILS) AND IT WOULD
APPEAR THAT A SIMPLE MANN ACT PROSECUTION WOULD VINDICATE THE MAJESTY
OF FEDERAL LAW.  HOWEVER, EVEN WHEN APPROPRIATELY INVOKED, THE
LOOSENESS AND PLIABILITY OF THE DOCTRINE PRESENT INHERENT DANGERS WHICH
SHOULD BE IN THE BACKGROUND OF JUDICIAL THOUGHT WHEREVER IT IS SOUGHT
TO EXTEND THE DOCTRINE TO MEET THE EXIGENCIES OF A PARTICULAR CASE. 

CONSPIRACY IN FEDERAL LAW AGGRAVATES THE DEGREE OF CRIME OVER THAT OF
UNCONCERTED OFFENDING.  THE ACT OF CONFEDERATING TO COMMIT A
MISDEMEANOR, FOLLOWED BY EVEN AN INNOCENT OVERT ACT IN ITS EXECUTION,
IS A FELONY AND IS SUCH EVEN IF THE MISDEMEANOR IS NEVER CONSUMMATED. 
FN9  THE MORE RADICAL PROPOSITION ALSO IS WELL-ESTABLISHED THAT AT
COMMON LAW AND UNDER SOME STATUTES A COMBINATION MAY BE A CRIMINAL
CONSPIRACY EVEN IF IT CONTEMPLATES ONLY ACTS WHICH ARE NOT CRIMES AT
ALL WHEN PERPETRATED BY AN INDIVIDUAL OR BY MANY ACTING SEVERALLY. 
FN10 

THUS THE CONSPIRACY DOCTRINE WILL INCRIMINATE PERSONS ON THE FRINGE OF
OFFENDING WHO WOULD NOT BE GUILTY OF AIDING AND ABETTING OR OF BECOMING
AN ACCESSORY, FOR THOSE CHARGES ONLY LIE WHEN AN ACT WHICH IS A CRIME
HAS ACTUALLY BEEN COMMITTED.  FN11 

ATTRIBUTION OF CRIMINALITY TO A CONFEDERATION WHICH CONTEMPLATES NO
ACT THAT WOULD BE CRIMINAL IF CARRIED OUT BY ANY ONE OF THE
CONSPIRATORS IS A PRACTICE PECULIAR TO ANGLO-AMERICAN LAW.  "THERE CAN
BE LITTLE DOUBT THAT THIS WIDE DEFINITION OF THE CRIME OF CONSPIRACY
ORIGINATES IN THE CRIMINAL EQUITY ADMINISTERED IN THE STAR CHAMBER." 
FN12  IN FACT, WE ARE ADVISED THAT "THE MODERN CRIME OF CONSPIRACY IS
ALMOST ENTIRELY THE RESULT OF THE MANNER IN WHICH CONSPIRACY WAS
TREATED BY THE COURT OF STAR CHAMBER."  FN13  THE DOCTRINE DOES NOT
COMMEND ITSELF TO JURISTS OF CIVIL-LAW COUNTRIES,  FN14  DESPITE
UNIVERSAL RECOGNITION THAT AN ORGANIZED SOCIETY MUST HAVE LEGAL WEAPONS
FOR COMBATTING ORGANIZED CRIMINALITY.  MOST OTHER COUNTRIES HAVE
DEVISED WHAT THEY CONSIDER MORE DISCRIMINATING PRINCIPLES UPON WHICH TO
PROSECUTE CRIMINAL GANGS, SECRET ASSOCIATIONS AND SUBVERSIVE
SYNDICATES.  FN15    A RECENT TENDENCY HAS APPEARED IN THIS COURT TO
EXPAND THIS ELASTIC OFFENSE AND TO FACILITATE ITS PROOF.  IN PINKERTON
V. UNITED STATES, 328 U.S. 640, IT SUSTAINED A CONVICTION OF A
SUBSTANTIVE CRIME WHERE THERE WAS NO PROOF OF PARTICIPATION IN OR
KNOWLEDGE OF IT, UPON THE NOVEL AND DUBIOUS THEORY THAT CONSPIRACY IS
EQUIVALENT IN LAW TO AIDING AND ABETTING. 

DOCTRINES OF CONSPIRACY ARE NOT ONLY INVOKED FOR CRIMINAL
PROSECUTION, BUT ALSO IN CIVIL PROCEEDINGS FOR DAMAGES OR FOR
INJUNCTION, AND IN ADMINISTRATIVE PROCEEDINGS TO APPLY REGULATORY
STATUTES.  THEY HAVE BEEN RESORTED TO BY MILITARY COMMISSIONS AND ON AT
LEAST ONE NOTABLE OCCASION WHEN CIVIL COURTS WERE OPEN AT THE TIME AND
PLACE TO PUNISH THE OFFENSE.  FN16  THIS CONSPIRACY CONCEPT WAS
EMPLOYED TO PROSECUTE LABORERS FOR COMBINING TO RAISE THEIR WAGES AND
FORMED THE BASIS FOR ABUSE OF THE LABOR INJUNCTION.  FN17  THE NATIONAL
LABOR RELATIONS ACT FOUND IT NECESSARY TO PROVIDE THAT CONCERTED LABOR
ACTIVITIES OTHERWISE LAWFUL WERE NOT RENDERED UNLAWFUL BY MERE
CONCERT.  FN18  BUT IN OTHER FIELDS CONCERT MAY STILL BE A CRIME THOUGH
IT CONTEMPLATES ONLY ACTS WHICH EACH COULD DO LAWFULLY ON HIS OWN. 

THE INTERCHANGEABLE USE OF CONSPIRACY DOCTRINE IN CIVIL AS WELL AS
PENAL PROCEEDINGS OPENS IT TO THE DANGER, ABSENT IN THE CASE OF MANY
CRIMES, THAT A COURT HAVING IN MIND ONLY THE CIVIL SANCTIONS WILL
APPROVE LAX PRACTICES WHICH LATER ARE IMPORTED INTO CRIMINAL
PROCEEDINGS.  IN CIVIL PROCEEDINGS THIS COURT FRANKLY HAS MADE THE END
A TEST OF THE MEANS, SAYING, "TO REQUIRE A GREATER SHOWING WOULD
CRIPPLE THE ACT," UNITED STATES V. GRIFFITH, 334 U.S. 100, IN
DISPENSING WITH THE NECESSITY FOR SPECIFIC INTENT TO PRODUCE A RESULT
VIOLATIVE OF THE STATUTE.  FURTHER, THE COURT HAS DISPENSED WITH EVEN
THE NECESSITY TO INFER ANY DEFINITE AGREEMENT, ALTHOUGH THAT IS THE
GIST OF THE OFFENSE.  "IT IS ELEMENTARY THAT AN UNLAWFUL CONSPIRACY MAY
BE AND OFTEN IS FORMED WITHOUT SIMULTANEOUS ACTION OR AGREEMENT ON THE
PART OF THE CONSPIRATORS.   ...  "  UNITED STATES V. MASONITE CORP.,
316 U.S. 265, 275.  ONE MIGHT GO ON FROM THE REPORTS OF THIS AND LOWER
COURTS AND PUT TOGETHER THEIR DECISIONS CONDONING ABSENCE OF PROOF TO
DEMONSTRATE THAT THE MINIMUM OF PROOF REQUIRED TO ESTABLISH CONSPIRACY
IS EXTREMELY LOW, AND WE MAY EXPECT OUR PRONOUNCEMENTS IN CIVIL CASES
TO BE FOLLOWED IN CRIMINAL ONES ALSO. 

OF COURSE, IT IS FOR PROSECUTORS RATHER THAN COURTS TO DETERMINE WHEN
TO USE A SCATTER-GUN TO BRING DOWN THE DEFENDANT, BUT THERE ARE
PROCEDURAL ADVANTAGES FROM USING IT WHICH ADD TO THE DANGER OF
UNGUARDED EXTENSION OF THE CONCEPT. 

AN ACCUSED, UNDER THE SIXTH AMENDMENT, HAS THE RIGHT TO TRIAL "BY AN
IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE
BEEN COMMITTED."  THE LEVERAGE OF A CONSPIRACY CHARGE LIFTS THIS
LIMITATION FROM THE PROSECUTION AND REDUCES ITS PROTECTION TO A
PHANTOM, FOR THE CRIME IS CONSIDERED SO VAGRANT AS TO HAVE BEEN
COMMITTED IN ANY DISTRICT WHERE ANY ONE OF THE CONSPIRATORS DID ANY ONE
OF THE ACTS, HOWEVER INNOCENT, INTENDED TO ACCOMPLISH ITS OBJECT.  FN19
THE GOVERNMENT MAY, AND OFTEN DOES, COMPEL ONE TO DEFEND AT A GREAT
DISTANCE FROM ANY PLACE HE EVER DID ANY ACT BECAUSE SOME ACCUSED
CONFEDERATE DID SOME TRIVIAL AND BY ITSELF INNOCENT ACT IN THE CHOSEN
DISTRICT.  CIRCUMSTANCES MAY EVEN ENABLE THE PROSECUTION TO FIX THE
PLACE OF TRIAL IN WASHINGTON, D.C., WHERE A DEFENDANT MAY LAWFULLY BE
PUT TO TRIAL BEFORE A JURY PARTLY OR EVEN WHOLLY MADE UP OF EMPLOYEES
OF THE GOVERNMENT THAT ACCUSES HIM.  CF. FRAZIER V. UNITED STATES, 335
U.S. 497. 

WHEN THE TRIAL STARTS, THE ACCUSED FEELS THE FULL IMPACT OF THE
CONSPIRACY STRATEGY.  STRICTLY, THE PROSECUTION SHOULD FIRST ESTABLISH
PRIMA FACIE THE CONSPIRACY AND IDENTIFY THE CONSPIRATORS, AFTER WHICH
EVIDENCE OF ACTS AND DECLARATIONS OF EACH IN THE COURSE OF ITS
EXECUTION ARE ADMISSIBLE AGAINST ALL.  BUT THE ORDER OF PROOF OF SO
SPRAWLING A CHARGE IS DIFFICULT FOR A JUDGE TO CONTROL.  AS A PRACTICAL
MATTER, THE ACCUSED OFTEN IS CONFRONTED WITH A HODGEPODGE OF ACTS AND
STATEMENTS BY OTHERS WHICH HE MAY NEVER HAVE AUTHORIZED OR INTENDED OR
EVEN KNOWN ABOUT, BUT WHICH HELP TO PERSUADE THE JURY OF EXISTENCE OF
THE CONSPIRACY ITSELF.  IN OTHER WORDS, A CONSPIRACY OFTEN IS PROVED BY
EVIDENCE THAT IS ADMISSIBLE ONLY UPON ASSUMPTION THAT CONSPIRACY
EXISTED.  THE NAIVE ASSUMPTION THAT PREJUDICIAL EFFECTS CAN BE OVERCOME
BY INSTRUCTIONS TO THE JURY, CF. BLUMENTHAL V. UNITED STATES, 332 U.S.
539, 559, ALL PRACTICING LAWYERS KNOW TO BE UNMITIGATED FICTION.  SEE
SKIDMORE V. BALTIMORE & OHIO R. CO., 167 F.2D 54. 

THE TRIAL OF A CONSPIRACY CHARGE DOUBTLESS IMPOSES A HEAVY BURDEN ON
THE PROSECUTION, BUT IT IS AN ESPECIALLY DIFFICULT SITUATION FOR THE
DEFENDANT.  THE HAZARD FROM LOOSE APPLICATION OF RULES OF EVIDENCE IS
AGGRAVATED WHERE THE GOVERNMENT INSTITUTES MASS TRIALS.  FN20
MOREOVER, IN FEDERAL PRACTICE THERE IS NO RULE PREVENTING CONVICTION ON
UNCORROBORATED TESTIMONY OF ACCOMPLICES, AS THERE ARE IN MANY
JURISDICTIONS, AND THE MOST COMFORT A DEFENDANT CAN EXPECT IS THAT THE
COURT CAN BE INDUCED TO FOLLOW THE "BETTER PRACTICE" AND CAUTION THE
JURY AGAINST "TOO MUCH RELIANCE UPON THE TESTIMONY OF ACCOMPLICES." 
CAMINETTI V. UNITED STATES, 242 U.S. 470, 495. 

A CO-DEFENDANT IN A CONSPIRACY TRIAL OCCUPIES AN UNEASY SEAT.  THERE
GENERALLY WILL BE EVIDENCE OF WRONG-DOING BY SOMEBODY.  IT IS DIFFICULT
FOR THE INDIVIDUAL TO MAKE HIS OWN CASE STAND ON ITS OWN MERITS IN THE
MINDS OF JURORS WHO ARE READY TO BELIEVE THAT BIRDS OF A FEATHER ARE
FLOCKED TOGETHER.  IF HE IS SILENT, HE IS TAKEN TO ADMIT IT AND IF, AS
OFTEN HAPPENS, CO-DEFENDANTS CAN BE PRODDED INTO ACCUSING OR
CONTRADICTING EACH OTHER, THEY CONVICT EACH OTHER.  THERE ARE MANY
PRACTICAL DIFFICULTIES IN DEFENDING AGAINST A CHARGE OF CONSPIRACY
WHICH I WILL NOT ENUMERATE.  FN21 

AGAINST THIS INADEQUATELY SKETCHED BACKGROUND, I THINK THE DECISION
OF THIS CASE IN THE COURT BELOW INTRODUCED AN OMINOUS EXPANSION OF THE
ACCEPTED LAW OF CONSPIRACY.  THE PROSECUTION WAS ALLOWED TO INCRIMINATE
THE DEFENDANT BY MEANS OF THE PROSTITUTE'S RECITAL OF A CONVERSATION
WITH DEFENDANT'S ALLEGED CO-CONSPIRATOR, WHO WAS NOT ON TRIAL.  THE
CONVERSATION WAS SAID TO HAVE TAKEN PLACE AFTER THE SUBSTANTIVE OFFENSE
WAS ACCOMPLISHED, AFTER THE DEFENDANT, THE CO-CONSPIRATOR AND THE
WITNESS HAD ALL BEEN ARRESTED, AND AFTER THE WITNESS AND THE OTHER TWO
HAD A FALLING OUT.  THE COURT OF APPEALS SUSTAINED ITS ADMISSION UPON
GROUNDS STATED AS FOLLOWS: 

"  ...  WE THINK THAT IMPLICIT IN A CONSPIRACY TO VIOLATE THE LAW IS
AN AGREEMENT AMONG THE CONSPIRATORS TO CONCEAL THE VIOLATION AFTER AS
WELL AS BEFORE THE ILLEGAL PLAN IS CONSUMMATED.  THUS THE CONSPIRACY
CONTINUES, AT LEAST FOR PURPOSES OF CONCEALMENT, EVEN AFTER ITS PRIMARY
AIMS HAVE BEEN ACCOMPLISHED.  THE STATEMENTS OF THE CO-CONSPIRATOR HERE
WERE MADE IN AN EFFORT TO PROTECT THE APPELLANT BY CONCEALING HIS ROLE
IN THE CONSPIRACY.  CONSEQUENTLY, THEY FELL WITHIN THE IMPLIED
AGREEMENT TO CONCEAL AND WERE ADMISSIBLE AS EVIDENCE AGAINST THE
APPELLANT.  CF. UNITED STATES V. GOLDSTEIN, 2 CIR., 135 F.2D 359;
MURRAY V. UNITED STATES, 7 CIR., 10 F.2D 409, CERTIORARI DENIED, 271
U.S. 673  ...  WHILE BRYAN V. UNITED STATES, 5 CIR., 17 F.2D 741, IS BY
IMPLICATION DIRECTLY TO THE CONTRARY, WE DECLINE TO FOLLOW IT." 

I SUPPOSE NO PERSON PLANNING A CRIME WOULD ACCEPT AS A COLLABORATOR
ONE ON WHOM HE THOUGHT HE COULD NOT RELY FOR HELP IF HE WERE CAUGHT,
BUT I DOUBT THAT THIS FACT WARRANTS AN INFERENCE OF CONSPIRACY FOR THAT
PURPOSE.  OF COURSE, IF AN UNDERSTANDING FOR CONTINUOUS AID HAD BEEN
PROVEN, IT WOULD BE EMBRACED IN THE CONSPIRACY BY EVIDENCE AND THERE
WOULD BE NO NEED TO IMPLY SUCH AN AGREEMENT.  ONLY WHERE THERE IS NO
CONVINCING EVIDENCE OF SUCH AN UNDERSTANDING IS THERE NEED FOR ONE TO
BE IMPLIED. 

IT IS DIFFICULT TO SEE ANY LOGICAL LIMIT TO THE "IMPLIED CONSPIRACY,"
EITHER AS TO DURATION OR MEANS, NOR DOES IT APPEAR THAT ONE COULD
OVERCOME THE IMPLICATION BY EXPRESS AND CREDIBLE EVIDENCE THAT NO SUCH
UNDERSTANDING EXISTED, NOR ANY WAY IN WHICH AN ACCUSED AGAINST WHOM THE
PRESUMPTION IS ONCE RAISED CAN TERMINATE THE IMPUTED AGENCY OF HIS
ASSOCIATES TO INCRIMINATE HIM.  CONSPIRATORS, LONG AFTER THE
CONTEMPLATED OFFENSE IS COMPLETE, AFTER PERHAPS THEY HAVE FALLEN OUT
AND BECOME ENEMIES, MAY STILL INCRIMINATE EACH OTHER BY DELIBERATELY
HARMFUL, BUT UNSWORN DECLARATIONS, OR UNINTENTIONALLY BY CASUAL
CONVERSATIONS OUT OF COURT.  ON THE THEORY THAT THE LAW WILL IMPUTE TO
THE CONFEDERATES A CONTINUING CONSPIRACY TO DEFEAT JUSTICE, ONE
CONCEIVABLY COULD BE BOUND BY ANOTHER'S UNAUTHORIZED AND UNKNOWN
COMMISSION OF PERJURY, BRIBERY OF A JUROR OR WITNESS, OR EVEN PUTTING
AN INCORRIGIBLE WITNESS WITH DAMAGING INFORMATION OUT OF THE WAY. 

MOREOVER, THE ASSUMPTION OF AN INDEFINITELY CONTINUING OFFENSE WOULD
RESULT IN AN INDETERMINATE EXTENSION OF THE STATUTE OF LIMITATIONS.  IF
THE LAW IMPLIES AN AGREEMENT TO COOPERATE IN DEFEATING PROSECUTION, IT
MUST IMPLY THAT IT CONTINUES AS LONG AS PROSECUTION IS A POSSIBILITY,
AND PROSECUTION IS A POSSIBILITY AS LONG AS THE CONSPIRACY TO DEFEAT IT
IS IMPLIED TO CONTINUE. 

I DO NOT SEE THE SLIGHTEST WARRANT FOR JUDICIALLY INTRODUCING A
DOCTRINE OF IMPLIED CRIMES OR CONSTRUCTIVE CONSPIRACIES.  IT EITHER
ADDS A NEW CRIME OR EXTENDS AN OLD ONE.  TRUE, THE MODERN LAW OF
CONSPIRACY WAS LARGELY EVOLVED BY THE JUDGES.  BUT IT IS WELL AND
WISELY SETTLED THAT THERE CAN BE NO JUDGE-MADE OFFENSES AGAINST THE
UNITED STATES AND THAT EVERY FEDERAL PROSECUTION MUST BE SUSTAINED BY
STATUTORY AUTHORITY.  FN22  NO STATUTE AUTHORIZES FEDERAL JUDGES TO
IMPLY, PRESUME OR CONSTRUCT A CONSPIRACY EXCEPT AS ONE MAY BE FOUND
FROM EVIDENCE.  TO DO SO SEEMS TO APPROXIMATE CREATION OF A NEW OFFENSE
AND ONE THAT I WOULD THINK OF DOUBTFUL CONSTITUTIONALITY EVEN IF IT
WERE CREATED BY CONGRESS.  FN23  AND, AT ALL EVENTS, IT IS ONE
FUNDAMENTALLY AND IRRECONCILABLY AT WAR WITH OUR PRESUMPTION OF
INNOCENCE. 

THERE IS, OF COURSE, STRONG TEMPTATION TO RELAX RIGID STANDARDS WHEN
IT SEEMS THE ONLY WAY TO SUSTAIN CONVICTIONS OF EVILDOERS.  BUT
STATUTES AUTHORIZE PROSECUTION FOR SUBSTANTIVE CRIMES FOR MOST EVIL
DOING WITHOUT THE DANGERS TO THE LIBERTY OF THE INDIVIDUAL AND THE
INTEGRITY OF THE JUDICIAL PROCESS THAT ARE INHERENT IN CONSPIRACY
CHARGES.  WE SHOULD DISAPPROVE THE DOCTRINE OF IMPLIED OR CONSTRUCTIVE
CRIME IN ITS ENTIRETY AND IN EVERY MANIFESTATION.  AND I THINK THERE
SHOULD BE NO STRAINING TO UPHOLD ANY CONSPIRACY CONVICTION WHERE
PROSECUTION FOR THE SUBSTANTIVE OFFENSE IS ADEQUATE AND THE PURPOSE
SERVED BY ADDING THE CONSPIRACY CHARGE SEEMS CHIEFLY TO GET PROCEDURAL
ADVANTAGES TO EASE THE WAY TO CONVICTION. 

ALTHOUGH A REVERSAL AFTER FOUR TRIALS IS, OF COURSE, REGRETTABLE, I
CANNOT OVERLOOK THE ERROR AS A HARMLESS ONE.  BUT I SHOULD CONCUR IN
REVERSAL EVEN IF LESS SURE THAT PREJUDICE RESULTED, FOR IT IS BETTER
THAT THE CRIME GO UNWHIPPED OF JUSTICE THAN THAT THIS THEORY OF IMPLIED
CONTINUANCE OF CONSPIRACY FIND LODGMENT IN OUR LAW, EITHER BY
AFFIRMANCE OR BY TOLERANCE.  FEW INSTRUMENTS OF INJUSTICE CAN EQUAL
THAT OF IMPLIED OR PRESUMED OR CONSTRUCTIVE CRIMES.  THE MOST ODIOUS OF
ALL OPPRESSIONS ARE THOSE WHICH MASK AS JUSTICE. 

FN1  THE PHRASE IS JUDGE CARDOZO'S - THE NATURE OF THE JUDICIAL
PROCESS, P. 51. 

FN2  THE CONFERENCE OF SENIOR CIRCUIT JUDGES, PRESIDED OVER BY CHIEF
JUSTICE TAFT, IN 1925 REPORTED: 

"WE NOTE THE PREVALENT USE OF CONSPIRACY INDICTMENTS FOR CONVERTING A
JOINT MISDEMEANOR INTO A FELONY; AND WE EXPRESS OUR CONVICTION THAT
BOTH FOR THIS PURPOSE AND FOR THE PURPOSE - OR AT LEAST WITH THE EFFECT
- OF BRINGING IN MUCH IMPROPER EVIDENCE, THE CONSPIRACY STATUTE IS
BEING MUCH ABUSED. 

"ALTHOUGH IN A PARTICULAR CASE THERE MAY BE NO PRECONCERT OF PLAN,
EXCEPTING THAT NECESSARILY INHERENT IN MERE JOINT ACTION, IT IS
DIFFICULT TO EXCLUDE THAT SITUATION FROM THE ESTABLISHED DEFINITIONS OF
CONSPIRACY; YET THE THEORY WHICH PERMITS US TO CALL THE ABORTED PLAN A
GREATER OFFENSE THAN THE COMPLETED CRIME SUPPOSES A SERIOUS AND
SUBSTANTIALLY CONTINUED GROUP SCHEME FOR COOPERATIVE LAW BREAKING.   WE
OBSERVE SO MANY CONSPIRACY PROSECUTIONS WHICH DO NOT HAVE THIS
SUBSTANTIAL BASE THAT WE FEAR THE CREATION OF A GENERAL IMPRESSION,
VERY HARMFUL TO LAW ENFORCEMENT, THAT THIS METHOD OF PROSECUTION IS
USED ARBITRARILY AND HARSHLY.  FURTHER THE RULES OF EVIDENCE IN
CONSPIRACY CASES MAKE THEM MOST DIFFICULT TO TRY WITHOUT PREJUDICE TO
AN INNOCENT DEFENDANT."  ANNUAL REPORT OF THE ATTORNEY GENERAL FOR
1925, PP. 5-6. 

FIFTEEN YEARS LATER JUDGE LEARNED HAND OBSERVED:  "  ...  SO MANY
PROSECUTORS SEEK TO SWEEP WITHIN THE DRAG-NET OF CONSPIRACY ALL THOSE
WHO HAVE BEEN ASSOCIATED IN ANY DEGREE WHATEVER WITH THE MAIN
OFFENDERS.  THAT THERE ARE OPPORTUNITIES OF GREAT OPPRESSION IN SUCH A
DOCTRINE IS VERY PLAIN, AND IT IS ONLY BY CIRCUMSCRIBING THE SCOPE OF
SUCH ALL COMPREHENSIVE INDICTMENTS THAT THEY CAN BE AVOIDED."  UNITED
STATES V. FALCONE, 109 F.2D 579, 581. 

FN3  HARNO, INTENT IN CRIMINAL CONSPIRACY, 89 U. OF PA. L. REV. 624:
"IN THE LONG CATEGORY OF CRIMES THERE IS NONE, NOT EXCEPTING CRIMINAL
ATTEMPT, MORE DIFFICULT TO CONFINE WITHIN THE BOUNDARIES OF DEFINITIVE
STATEMENT THAN CONSPIRACY." 

AN ENGLISH AUTHOR - WRIGHT, THE LAW OF CRIMINAL CONSPIRACIES AND
AGREEMENTS, P. 11 - GIVES UP WITH THE REMARK:  "BUT NO INTELLIGIBLE
DEFINITION OF 'CONSPIRACY' HAS YET BEEN ESTABLISHED."    FN4  JUSTICE
HOLMES SUPPLIED AN OVERSIMPLIFIED WORKING DEFINITION IN UNITED STATES
V. KISSEL, 218 U.S. 601, 608:  "A CONSPIRACY IS A PARTNERSHIP IN
CRIMINAL PURPOSES."  THIS WAS RECENTLY RESTATED "A CONSPIRACY IS A
PARTNERSHIP IN CRIME."  PINKERTON V. UNITED STATES, 328 U.S. 640, 644. 
THE LATTER IS INACCURATE, SINCE CONCERT IN CRIMINAL PURPOSES, RATHER
THAN CONCERT IN CRIME, ESTABLISHES THE CONSPIRACY. 

CARSON OFFERS THE FOLLOWING RESUME OF AMERICAN CASES:  "IT WOULD
APPEAR THAT A CONSPIRACY MUST BE A COMBINATION OF TWO OR MORE PERSONS
BY SOME CONCERTED ACTION TO ACCOMPLISH SOME CRIMINAL OBJECT; OR SOME
OBJECT NOT CRIMINAL BY CRIMINAL MEANS; OR, SOME OBJECT NOT CRIMINAL BY
MEANS WHICH ARE NOT CRIMINAL, BUT WHERE MISCHIEF TO THE PUBLIC IS
INVOLVED; OR, WHERE NEITHER THE OBJECT NOR THE MEANS ARE CRIMINAL, OR
EVEN UNLAWFUL, BUT WHERE INJURY AND OPPRESSION TO INDIVIDUALS ARE THE
RESULT."  THE LAW OF CRIMINAL CONSPIRACIES AND AGREEMENTS, AS FOUND IN
THE AMERICAN CASES, P. 123. 

FN5  SEE, FOR EXAMPLE: 

8 U.S.C. SEC. 47, CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS; (1)
PREVENTING OFFICER FROM PERFORMING DUTIES; (2) OBSTRUCTING JUSTICE,
INTIMIDATING PARTY, WITNESS, OR JUROR; (3) DEPRIVING PERSONS OF RIGHTS
OR PRIVILEGES.  10 U.S.C. SEC. 1566, CONSPIRACY BY PERSONS IN MILITARY
SERVICE TO DEFRAUD THE U.S. 12 U.S.C. SEC. 1138D (F), CONSPIRACY
INVOLVING FARM CREDIT BANKS, ADMINISTRATION, ETC.  15 U.S.C.:  SECS. 1
3, CONSPIRACY IN RESTRAINT OF TRADE; SEC. 8, CONSPIRACY IN RESTRAINT OF
IMPORT TRADE.  18 U.S.C. AS REVISED BY THE ACT OF JUNE 25, 1948, 62
STAT. 928 ET SEQ., EFFECTIVE SEPTEMBER 1, 1948:  SEC. 2384, SEDITIOUS
CONSPIRACY; SECS. 2385, 2387, CONSPIRACY TO IMPAIR LOYALTY OF ARMED
FORCES OR ADVOCATE OVERTHROW OF U.S. GOVERNMENT BY FORCE; SEC. 241,
CONSPIRACY TO INJURE PERSON IN EXERCISE OF CIVIL RIGHTS; SEC. 372,
CONSPIRACY TO PREVENT OFFICER FROM PERFORMING DUTIES; SEC. 286,
CONSPIRACY TO DEFRAUD THE GOVERNMENT BY OBTAINING PAYMENT OF A FALSE
CLAIM; SEC. 371, CONSPIRACY TO DEFRAUD THE UNITED STATES; SECS. 1501
1506, CONSPIRACY TO OBSTRUCT JUSTICE; SECS. 752, 1792, CONSPIRACY TO
CAUSE RIOTS AT FEDERAL PENAL INSTITUTIONS; SEC. 1201, CONSPIRACY TO
TRANSPORT KIDNAPPED PERSON IN INTERSTATE COMMERCE; SEC. 2314,
CONSPIRACY TO TRANSPORT STOLEN PROPERTY AND COUNTERFEITING INSTRUMENTS
IN INTERSTATE COMMERCE; SEC. 1951, CONSPIRACY TO VIOLATE ANTI
RACKETEERING ACT; SEC. 2192, CONSPIRACY TO INCITE MUTINY ON SHIPBOARD;
SEC. 2271, CONSPIRACY TO CAST AWAY VESSEL.  22 U.S.C. SEC. 234,
CONSPIRACY TO INJURE PROPERTY OF FOREIGN GOVERNMENT.  31 U.S.C. SEC.
231, CONSPIRACY TO OBTAIN PAYMENT OF FALSE CLAIMS.  34 U.S.C. SEC.
749A, CONSPIRACY TO BID COLLUSIVELY ON CONSTRUCTION OF NAVAL AIRCRAFT. 
38 U.S.C. SEC. 715, CONSPIRACY TO FALSIFY PENSION CLAIMS.  50 U.S.C.
SEC. 34, CONSPIRACY TO DISCLOSE NATIONAL DEFENSE INFORMATION OR COMMIT
ESPIONAGE.  50 U.S.C. APP. SEC. 311, CONSPIRACY TO VIOLATE SELECTIVE
SERVICE ACT. 

FN6  HARNO, INTENT IN CRIMINAL CONSPIRACY, 89 U. OF PA. L. REV. 624,
632. 

FN7  SEE SENTURIA, CONSPIRACY, POLITICAL, IV ENCYC.  SOC.  SCI.
238(1931). 

ON CONSPIRACY PRINCIPLES GERMAN COURTS, ON MAY 30, 1924, ADJUDGED THE
NAZI PARTY TO BE A CRIMINAL ORGANIZATION.  IT ALSO HELD IN 1928 THAT
THE LEADERSHIP CORPS OF THE COMMUNIST PARTY WAS A CRIMINAL ORGANIZATION
AND IN 1930 ENTERED JUDGMENT OF CRIMINALITY AGAINST THE UNION OF RED
FRONT FIGHTERS OF THE COMMUNIST PARTY.  SEE NOTE 15. 

FN8  8 HOLDSWORTH, HISTORY OF ENGLISH LAW, 383.  MILLER, CRIMINAL
LAW, P. 110. 

FN9  18 U.S.C.A. SEC. 371.  UNTIL RECENTLY, THE PUNISHMENT FOR SUCH A
FELONY COULD HAVE BEEN FAR IN EXCESS OF THAT PROVIDED FOR THE
SUBSTANTIVE OFFENSE.  HOWEVER, THE ACT OF JUNE 25, 1948, C. 645, 62
STAT. 683, 701, PROVIDES THAT IN SUCH A CASE THE PUNISHMENT FOR THE
CONSPIRACY SHALL NOT EXCEED THE MAXIMUM PROVIDED FOR SUCH MISDEMEANOR. 

FN10  THIS IS THE FEDERAL LAW APPLICABLE TO ANTITRUST PROSECUTIONS. 
FOR THE HISTORY OF THIS CONCEPTION AND ITS PERVERSION, PARTICULARLY IN
LABOR CASES, SEE SAYRE, CRIMINAL CONSPIRACY, 35 HARV. L. REV. 393.  ON
THE ABUSE OF CONSPIRACY SEE O'BRIAN, LOYALTY TESTS AND GUILT BY
ASSOCIATION, 61 HARV. L. REV. 592, AND NOTE, THE CONSPIRACY DILEMMA:
PROSECUTION OF GROUP CRIME OR PROTECTION OF INDIVIDUAL DEFENDANTS, 62
HARV. L. REV. 276. 

FN11  THIS STATEMENT, OF COURSE, LEAVES OUT OF ACCOUNT THE SUBJECT OF
ATTEMPTS WITH WHICH CONSPIRACY IS SAID TO BE ALLIED.  8 HOLDSWORTH,
HISTORY OF ENGLISH LAW, 382. 

FN12  ID., 382. 

FN13  ID., 379. 

FN14  "IT IS UTTERLY UNKNOWN TO THE ROMAN LAW; IT IS NOT FOUND IN
MODERN CONTINENTAL CODES; FEW CONTINENTAL LAWYERS EVER HEARD OF IT.  IT
IS A FORTUNATE CIRCUMSTANCE THAT IT IS NOT ENCRUSTED SO DEEP IN OUR
JURISPRUDENCE BY PAST DECISIONS OF OUR COURTS THAT WE ARE UNABLE TO
SLOUGH IT OFF ALTOGETHER.  IT IS A DOCTRINE WHICH HAS PROVED ITSELF THE
EVIL GENIUS OF OUR LAW WHEREVER IT HAS TOUCHED IT."  SAYRE, CRIMINAL
CONSPIRACY, 35 HARV. L. REV. 393, 427. 

FN15  COUNSEL REPRESENTING THE UNITED STATES, THE UNITED KINGDOM, THE
FRENCH REPUBLIC, AND THE SOVIET UNION, AND GERMAN DEFENDANTS, INDULGED
IN SOME COMPARISONS OF THE RELEVANT LAWS OF SEVERAL NATIONS BEFORE THE
INTERNATIONAL MILITARY TRIBUNAL AT NURNBERG IN CONNECTION WITH
ORGANIZATIONS THERE ACCUSED AS CRIMINAL.  8 TRIAL OF MAJOR WAR
CRIMINALS (GPO 1947), PP. 353, ET SEQ.; 2 NAZI CONSPIRACY AND
AGGRESSION (GPO 1946), P. 1; JACKSON, THE NURNBERG CASE, P. 95. 

FN16  THE ASSASSINATION OF PRESIDENT LINCOLN AND THE TRIAL OF THE
CONSPIRATORS, NEW YORK, 1865.  SEE, HOWEVER, EX PARTE MILLIGAN, 4
WALL.  2. 

FN17  SEE SAYRE, CRIMINAL CONSPIRACY, 35 HARV. L. REV. 393, 403. 

FN18  INTERNATIONAL UNION, U.A.W.A. V. WISCONSIN EMPLOYMENT RELATIONS
BOARD, ANTE, P. 245. 

FN19  HYDE V. UNITED STATES, 225 U.S. 347.  MR. JUSTICE HOLMES, ON
BEHALF OF HIMSELF AND JUSTICES HUGHES, LURTON AND LAMAR, WROTE A
VIGOROUS PROTEST WHICH DID NOT HESITATE TO BRAND THE DOCTRINE AS
OPPRESSIVE AND AS "ONE OF THE WRONGS THAT OUR FOREFATHERS MEANT TO
PREVENT."  225 U.S. 347, 387. 

FN20  AN EXAMPLE IS AFFORDED BY ALLEN V. UNITED STATES, 4 F.2D 688. 
AT THE HEIGHT OF THE PROHIBITION FRENZY, SEVENTY-FIVE DEFENDANTS WERE
TRIED ON CHARGES OF CONSPIRACY.  A NEWSPAPER REPORTER TESTIFIED TO
GOING TO A DRINKING PLACE WHERE HE TALKED WITH A WOMAN, BEHIND THE BAR,
WHOSE NAME HE COULD NOT GIVE.  THERE WAS NOT THE SLIGHTEST
IDENTIFICATION OF HER NOR SHOWING THAT SHE KNEW OR WAS KNOWN BY ANY
DEFENDANT.  BUT IT WAS HELD THAT BEING BACK OF THE BAR SHOWED HER TO BE
A CO-CONSPIRATOR AND, HENCE, HER STATEMENTS WERE ADMISSIBLE AGAINST
ALL.  HE WAS ALLOWED TO RELATE INCRIMINATING STATEMENTS MADE BY HER. 

FN21 FOR COURTROOM TECHNIQUE EMPLOYED IN THE TRIAL OF CONSPIRACY
CASES BY BOTH PROSECUTION AND DEFENSE, SEE O'DOUGHERTY, PROSECUTION AND
DEFENSE UNDER CONSPIRACY INDICTMENTS, 9 BROOKLYN L. REV. 263.  HIS
SURVEY, WHICH ACCORDS WITH OUR OBSERVATION, WILL HARDLY CONVINCE ONE
THAT A TRIAL OF THIS KIND IS THE HIGHEST EXEMPLIFICATION OF THE WORKING
OF THE JUDICIAL PROCESS. 

FN22  UNITED STATES V. HUDSON, 7 CRANCH 32; UNITED STATES V. WORRALL,
2 DALL.  384; UNITED STATES V. COOLIDGE, 1 WHEAT.  415; UNITED STATES
V. EATON, 144 U.S. 677, 687; UNITED STATES V. BATHGATE, 246 U.S. 220,
225.  SEE, HOWEVER, WARREN, NEW LIGHT ON THE HISTORY OF THE FEDERAL
JUDICIARY ACT OF 1789, 37 HARV. L. REV. 49, 73. 

FN23  CF. TOT V. UNITED STATES, 319 U.S. 463. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE MURPHY JOIN IN THIS OPINION. 

MR. JUSTICE BURTON, DISSENTING. 

WHILE I AGREE WITH THE OPINION OF THE COURT THAT THE HEARSAY
TESTIMONY IN QUESTION WAS NOT PROPERLY ADMISSIBLE, I REGARD ITS
ADMISSION, UNDER THE CIRCUMSTANCES OF THIS CASE, AS AN ABSOLUTELY
HARMLESS ERROR. 

IN SPEAKING OF HARMLESS ERRORS THAT MAY RESULT FROM THE ADMISSION OF
EVIDENCE, THIS COURT HAS SAID: 

"ERRORS OF THIS SORT IN CRIMINAL CAUSES CONCEIVABLY MAY BE ALTOGETHER
HARMLESS IN THE FACE OF OTHER CLEAR EVIDENCE, ALTHOUGH THE SAME ERROR
MIGHT TURN SCALES OTHERWISE LEVEL, AS CONSTANTLY APPEARS IN THE
APPLICATION OF THE POLICY OF SEC. 269* TO QUESTIONS OF THE ADMISSION OF
CUMULATIVE EVIDENCE."  KOTTEAKOS V. UNITED STATES, 328 U.S. 750, 763. 

*SECTION 269 OF THE JUDICIAL CODE, AS THEN IN EFFECT, AND AS IN
EFFECT AT THE TIME OF THE TRIAL OF THE INSTANT CASE AND OF THE ENTRY OF
THE JUDGMENT BELOW, PROVIDED: 

"SEC. 269.  ...  ON THE HEARING OF ANY APPEAL, CERTIORARI, WRIT OF
ERROR, OR MOTION FOR A NEW TRIAL, IN ANY CASE, CIVIL OR CRIMINAL, THE
COURT SHALL GIVE JUDGMENT AFTER AN EXAMINATION OF THE ENTIRE RECORD
BEFORE THE COURT, WITHOUT REGARD TO TECHNICAL ERRORS, DEFECTS, OR
EXCEPTIONS WHICH DO NOT AFFECT THE SUBSTANTIAL RIGHTS OF THE PARTIES." 
40 STAT. 1181, 28 U.S.C. SEC. 391. 

RULE 52(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, AS
CONTINUOUSLY IN EFFECT DURING AND SINCE THE TIME OF THE TRIAL OF THE
INSTANT CASE AND AS STILL IN EFFECT, PROVIDES: 

"RULE 52.  HARMLESS ERROR AND PLAIN ERROR. 

"(A)  HARMLESS ERROR.  ANY ERROR, DEFECT, IRREGULARITY OR VARIANCE
WHICH DOES NOT AFFECT SUBSTANTIAL RIGHTS SHALL BE DISREGARDED.  ...  " 

AGAIN, IN DETERMINING WHETHER ERROR IN THE ADMISSION OF EVIDENCE
SHOULD RESULT IN A REVERSAL OF A JUDGMENT, WE SAID THAT THE QUESTION IS
- 

"WHAT EFFECT THE ERROR HAD OR REASONABLY MAY BE TAKEN TO HAVE HAD
UPON THE JURY'S DECISION.  ... 

     .         .     .         .         . 

"IF, WHEN ALL IS SAID AND DONE, THE CONVICTION IS SURE THAT THE ERROR
DID NOT INFLUENCE THE JURY, OR HAD BUT VERY SLIGHT EFFECT, THE VERDICT
AND THE JUDGMENT SHOULD STAND, EXCEPT PERHAPS WHERE THE DEPARTURE IS
FROM A CONSTITUTIONAL NORM OR A SPECIFIC COMMAND OF CONGRESS."  ID. AT
PP. 764-765. 

THE ISSUE BEFORE US INVOLVES NO CONSTITUTIONAL QUESTION OR SPECIFIC
COMMAND OF CONGRESS.  THE TRIAL WAS A LONG ONE CONCERNING PERSONAL
CONDUCT INVOLVING SIMPLE ISSUES OF FACT.  THE RECORD OF IT COVERS MORE
THAN 800 PAGES.  THE JURY MUST HAVE BEEN THOROUGHLY FAMILIAR WITH THE
ISSUES AND WITH THE DEGREE OF DEPENDABILITY, IF ANY, TO BE PLACED UPON
THE ORAL TESTIMONY OF THE PETITIONER AND OF THE TWO WITNESSES INVOLVED
IN THE CONVERSATION THAT IS BEFORE US AS REPORTED BY ONE OF THEM.  THE
EVIDENCE SUPPORTING THE JURY'S VERDICT WAS CUMULATIVE, REPETITIVE AND
CORROBORATED TO SUCH A POINT THAT I CANNOT BELIEVE THAT THE VERDICT OR
THE RIGHTS OF THE PARTIES COULD HAVE BEEN APPRECIABLY AFFECTED BY SUCH
WEIGHT AS THE JURY MAY HAVE ATTACHED TO THIS REPORTED SNATCH OF
CONVERSATION BETWEEN TWO PEOPLE OF SUCH NEGLIGIBLE DEPENDABILITY AS WAS
DEMONSTRATED HERE.  AFTER THIS EXTENDED FOURTH TRIAL, TO SET ASIDE THIS
JURY'S VERDICT MERELY BECAUSE OF THIS PARTICULAR BIT OF HEARSAY
TESTIMONY SEEMS TO ME TO BE AN UNREALISTIC PROCEDURE THAT TENDS TO MAKE
A TRAVESTY OF THE JURY SYSTEM WHICH IS NEITHER NECESSARY NOR DESERVED. 
I WOULD AFFIRM THE JUDGMENT BELOW. 
..END :














U.S. V. WOMEN'S SPORTSWEAR ASSN., 336 U.S. 460 


NO. 37.  ARGUED FEBRUARY 28-MARCH 1, 1949.  - DECIDED MARCH 28, 1949.  -
75 F.SUPP.  112, REVERSED. 


WOMEN'S SPORTSWEAR JOBBERS IN BOSTON, SELLING IN INTERSTATE COMMERCE
ABOUT 80% OF THEIR ANNUAL PRODUCTION APPROXIMATING $8,800,000, AGREED
BY CONTRACT TO EMPLOY ONLY THOSE STITCHING CONTRACTORS WHO WERE
UNIONIZED AND ALSO MEMBERS OF A PARTICULAR TRADE ASSOCIATION, AND TO
DIVIDE ALL THEIR WORK AMONG ASSOCIATION MEMBERS WHO, AS TO PRICE AND
QUALITY, WERE COMPARABLE WITH NONMEMBERS.  HELD: 

1.  THE INTENT AND EFFECT OF THE AGREEMENT WAS SUBSTANTIALLY TO
RESTRICT COMPETITION, PRICES AND MARKETS IN VIOLATION OF SEC. 1 OF THE
SHERMAN ACT.  PP. 461-463. 

2.  THE EFFECT OF THE AGREEMENT BEING TO RESTRAIN INTERSTATE
COMMERCE, IT IS IMMATERIAL WHETHER OR NOT THE STITCHING CONTRACTORS
THEMSELVES MAY HAVE BEEN ENGAGED ONLY IN INTRASTATE BUSINESS.  PP. 464
465. 

3.  INCLUSION IN THE CONTRACT OF A PROVISION WHICH LIMITED THE WORK
TO UNION SHOPS WHICH WERE ALSO MEMBERS OF THE TRADE ASSOCIATION DID NOT
IMMUNIZE THE AGREEMENT FROM ATTACK UNDER SEC. 1 OF THE SHERMAN ACT. 
PP. 463-464. 

UNITED STATES V. WOMEN'S SPORTSWEAR MANUFACTURERS ASSOCIATION ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. 

IN A SUIT BY THE UNITED STATES TO ENJOIN VIOLATIONS OF SEC. 1 OF THE
SHERMAN ACT AND FOR OTHER RELIEF, THE DISTRICT COURT, AFTER TRIAL,
DENIED THE RELIEF SOUGHT.  75 F.SUPP.  112.  ON DIRECT APPEAL TO THIS
COURT, REVERSED, P. 465. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE DISTRICT COURT, AFTER TRIAL, HAS DENIED THE GOVERNMENT'S PLEA FOR
AN INJUNCTION, AND OTHER RELIEF, AGAINST APPELLEES UNDER THE SHERMAN
ACT.  FN1  75 F.SUPP.  112.  THE CAUSE IS BROUGHT HERE BY DIRECT
APPEAL, AS CONGRESS HAS AUTHORIZED.  FN2  DEFENDANTS BELOW AND
APPELLEES HERE ARE AN UNINCORPORATED TRADE ASSOCIATION, ITS OFFICERS
AND MEMBERS.  THERE IS NO SERIOUS CONTROVERSY AS TO FACTS.  OUR REVIEW
MUST DETERMINE WHETHER OR NOT THEY ESTABLISH THE GOVERNMENT'S RIGHT TO
THE RELIEF WHICH HAS BEEN DENIED. 

WE FIRST SHOULD BE SATISFIED THAT THE ACTIVITIES ON WHICH RESTRAINTS
ARE ALLEGED TO HAVE BEEN EXERTED CONSTITUTE COMMERCE AMONG STATES.  THE
INDUSTRY INVOLVED IS WOMEN'S SPORTSWEAR.  IT IS CARRIED ON BY JOBBERS,
WHO MAINTAIN SALES OFFICES IN NEW YORK AND ENGAGE IN NATION-WIDE
COMPETITION FOR ORDERS, CHIEFLY BY MEANS OF TRAVELING SALESMEN WHO
SOLICIT THROUGHOUT THE COUNTRY.  UPON RECEIVING AN ORDER, THE JOBBER
BUYS THE FABRICS AND CUTS THEM TO THE CUSTOMER'S FANCY.  IN MOST CASES
HE THEN SENDS THE CUT MATERIAL TO A CONTRACTOR WHO DOES THE STITCHING,
PUTS ON SUCH ACCESSORIES AS THE BUTTONS AND THE BOWS, AND RETURNS THE
COMPLETED GARMENTS TO THE JOBBER, WHO PROMPTLY SHIPS THEM TO THE
CUSTOMER. 

THAT THE JOBBERS MAINTAIN A CURRENT OF COMMERCE, SUBSTANTIAL IN
VOLUME AND INTERSTATE IN CHARACTER, SEEMS CLEAR.  THE BOSTON AREA RANKS
FIFTH IN THIS COUNTRY'S PRODUCTION OF WOMEN'S SPORTSWEAR.  ITS JOBBERS
OBTAIN ABOUT 80% OF THE CLOTH USED FROM SOURCES OUTSIDE OF
MASSACHUSETTS.  AT LEAST 80% OF THE FINISHED SPORTSWEAR IS SOLD AND
SHIPPED TO CUSTOMERS OUTSIDE OF THAT STATE.  THUS THE INDUSTRY IN
MASSACHUSETTS SUBSISTS ON A CONSTANT INFLUX OF CLOTH AND OUTGO OF
GARMENTS WHICH PASS THROUGH THE HANDS OF THE STITCHING CONTRACTORS FOR
AN ESSENTIAL OPERATION. 

OUR NEXT INQUIRY IS WHETHER THE ACCUSED COMBINATION, WHICH IS MADE UP
OF STITCHING CONTRACTORS, HAS IMPOSED UPON THIS INTERSTATE TRADE
RESTRAINTS OF A CHARACTER AND MAGNITUDE TO VIOLATE THE SHERMAN ACT. 
THE ASSOCIATION IS MADE UP OF MEMBERS WHO HANDLE AT LEAST 50% OF ALL
SPORTSWEAR PRODUCED IN BOSTON.  THE COST OF THIS CONTRACTOR'S OPERATION
IS ABOUT 25% OF THE JOBBER'S SALE PRICE, AND ITS VARIATIONS ARE
REFLECTED IN WHOLESALE AND RETAIL PRICES.  THE ASSOCIATION'S EXECUTIVE
DIRECTOR TOOK STEPS TO INDUCE JOBBERS TO ENTER INTO A WRITTEN
AGREEMENT, AMONG OTHER THINGS, TO EMPLOY ONLY MEMBERS OF THE
ASSOCIATION, REFRAIN FROM DEALING WITH NONMEMBERS, AND ACCEPT NO SECRET
PRICE REBATES.  WHEN THE JOBBERS HESITATED, STOPPAGE OF PRODUCTION WAS
THREATENED; AND WHEN THEY REFUSED BECAUSE THEY WERE ADVISED THAT IT
WOULD VIOLATE ANTITRUST LAWS, THE ASSOCIATION ORDERED CONTRACTORS TO
STOP WORK FOR THREE JOBBERS, WHICH WAS DONE, AND WORK FOR THEM WAS NOT
RESUMED UNTIL THE JOBBERS OBTAINED A STATE COURT INJUNCTION.  THE
PROPOSED AGREEMENT WAS THEN REVISED AND ULTIMATELY WAS SIGNED BY TWENTY
ONE JOBBERS WHO HANDLE A GROSS ANNUAL VOLUME OF ABOUT $8,800,000, THAT
BEING A SUBSTANTIAL PORTION OF THE BOSTON OUTPUT. 

THE AGREEMENT IN FINAL FORM, TOGETHER WITH THE CIRCUMSTANCES OF ITS
MAKING, IS ALLEGED TO CONSTITUTE AN ILLEGAL RESTRAINT OF TRADE.  TERMS
RELEVANT TO THE ISSUE REQUIRE JOBBERS TO GIVE ALL OF THEIR WORK TO
AVAILABLE ASSOCIATION MEMBERS WHO ARE IN GOOD STANDING WITH THE
INTERNATIONAL LADIES' GARMENT WORKERS' UNION, PROVIDED SUCH CONTRACTORS
ARE "COMPARABLE" AS TO PRICE AND QUALITY OF WORK WITH NONMEMBER
CONTRACTORS HAVING CONTRACTS WITH THE SAME UNION.  THE JOBBER IS TO
FURNISH A WRITTEN ORDER SPECIFYING PRICE AND IS FORBIDDEN TO RECEIVE
SECRET REBATES.  A JOBBER CAN GIVE WORK TO A NONMEMBER ONLY IN
CONTINUANCE OF AN EXISTING RELATIONSHIP.  THE JOBBER WILL GIVE NO NEW
CONTRACT TO ANY STITCHER WHO CEASES TO BE A MEMBER OF THE ASSOCIATION. 
THE ASSOCIATION AGREES TO ASSIST THE JOBBER IN GETTING SUFFICIENT
CONTRACTORS AS THE AMOUNT OF HIS WORK "MAY EQUITABLY REQUIRE," AND THE
JOBBER AGREES THAT HE WILL DIVIDE HIS WORK "AS EQUALLY AND EQUITABLY AS
POSSIBLE AMONG THE ASSOCIATION CONTRACTORS ENGAGED BY HIM."  THE
DISTRICT COURT FOUND THAT ONE OF THE PURPOSES OF THE ASSOCIATION WAS TO
MAINTAIN THE STANDARD OF PRICES.  THE GOVERNMENT ALSO RECITES EVIDENCE
SUGGESTING THAT THE ASSOCIATION POLICED THE MEMBERSHIP TO PREVENT PRICE
COMPETITION AND EXCLUDED FROM MEMBERSHIP "NEW COMERS IN THE TRADE." 

IN THE LIGHT OF ITS ORIGIN AND THE CIRCUMSTANCES OF THE INDUSTRY, IT
SEEMS CLEAR THAT THE INTENT AND EFFECT OF THE AGREEMENT IS
SUBSTANTIALLY TO RESTRICT COMPETITION AND TO CONTROL PRICES AND
MARKETS.  IT PROHIBITS THE JOBBERS FROM AWARDING WORK TO OTHERS (WITH
MINOR EXCEPTIONS) UNLESS THEIR PRICES ARE NOT "COMPARABLE" TO THOSE OF
ASSOCIATION MEMBERS.  IT EFFECTS FOR ASSOCIATION MEMBERS A VIRTUAL
MONOPOLY OF WORK AT "COMPARABLE" PRICES.  WORK GIVEN TO MEMBERS MUST BE
ALLOCATED "EQUITABLY," NOT BY REFERENCE TO PRICE OR QUALITY OF WORK. 
AND IT APPARENTLY CONTEMPLATES BOYCOTT BY THE ASSOCIATION OF JOBBERS
WHO DO NOT SUBSCRIBE TO THESE TERMS.  THAT SUCH A CONTRACT RESTRAINS
TRADE IN VIOLATION OF THE SHERMAN ACT IS OBVIOUS, EVEN IF THE
RESTRAINTS IN ACTUAL PRACTICE UNDER IT DO NOT GO BEYOND ITS EXPRESS
TERMS, WHICH THE EVIDENCE INDICATES TO BE LIKELY. 

IT IS ARGUED THAT INCLUSION OF THE LABOR PROVISIONS MAKES THE
AGREEMENT IMMUNE FROM ATTACK UNDER THE ANTITRUST LAWS.  THE STITCHING
CONTRACTOR, ALTHOUGH HE FURNISHES CHIEFLY LABOR, ALSO UTILIZES THE
LABOR THROUGH MACHINES AND HAS HIS RENTALS, CAPITAL COSTS, OVERHEAD AND
PROFITS.  HE IS AN ENTREPRENEUR, NOT A LABORER.  CF. COLUMBIA RIVER
PACKERS ASSOCIATION V. HINTON, 315 U.S. 143.  THE LABOR PROVISIONS WERE
INCORPORATED INTO THE SECOND PROPOSAL AFTER THE FIRST WAS REJECTED AS
VIOLATING THE ANTITRUST LAWS AND SEEM TO GIVE NOTHING TO LABOR THAT IT
WAS NOT ALREADY GETTING FOR ITSELF FROM OTHER AS WELL AS FROM THESE
MANUFACTURERS.  THE RESTRAINTS HERE WENT BEYOND LIMITING WORK TO UNION
SHOPS; IT LIMITED IT TO THOSE UNION SHOPS ALSO MEMBERS OF THE
ASSOCIATION.  THE TRIAL COURT FOUND NO EVIDENCE THAT THE UNION
PARTICIPATED IN MAKING THE AGREEMENT.  AND IF IT DID, BENEFITS TO
ORGANIZED LABOR CANNOT BE UTILIZED AS A CAT'S-PAW TO PULL EMPLOYERS'
CHESTNUTS OUT OF THE ANTITRUST FIRES.  ALLEN BRADLEY CO. V. LOCAL UNION
NO. 3, 325 U.S. 797. 

THE TRIAL COURT APPEARS TO HAVE DISMISSED THE CASE CHIEFLY ON THE
GROUND THAT THE ACCUSED ASSOCIATION AND ITS MEMBERS WERE NOT THEMSELVES
ENGAGED IN INTERSTATE COMMERCE.  THIS MAY OR MAY NOT BE THE NATURE OF
THEIR OPERATION CONSIDERED ALONE, BUT IT DOES NOT MATTER.  RESTRAINTS,
TO BE EFFECTIVE, DO NOT HAVE TO BE APPLIED ALL ALONG THE LINE OF
MOVEMENT OF INTERSTATE COMMERCE.  THE SOURCE OF THE RESTRAINT MAY BE
INTRASTATE, AS THE MAKING OF A CONTRACT OR COMBINATION USUALLY IS; THE
APPLICATION OF THE RESTRAINT MAY BE INTRASTATE, AS IT OFTEN IS; BUT
NEITHER MATTERS IF THE NECESSARY EFFECT IS TO STIFLE OR RESTRAIN
COMMERCE AMONG THE STATES.  IF IT IS INTERSTATE COMMERCE THAT FEELS THE
PINCH, IT DOES NOT MATTER HOW LOCAL THE OPERATION WHICH APPLIES THE
SQUEEZE. 

THE MANIFEST PURPOSE AND INTENT OF THE CONTRACT IN QUESTION WAS TO
RESTRAIN THE JOBBERS FROM FREE CHOICE AMONG STITCHING CONTRACTORS ON
EQUAL TERMS.  THE BUSINESS AFFECTED BY THE RESTRAINT IS INTERSTATE
COMMERCE.  THE VOLUME AFFECTED IS SUBSTANTIAL.  WHILE THE RESTRAINT OF
THE FINAL CONTRACT IS MORE MODERATE THAN THE ONE FIRST ATTEMPTED AND
ITS DOLLAR-AND-CENTS EFFECT ON THE COMMERCE MIGHT BE DIFFICULT TO
APPRAISE, IT IS SUFFICIENT TO WARRANT JUDGMENT CANCELING THE CONTRACT
AND ENJOINING CARRYING OUT OF THE PLAN IT EMBODIES. 

THE JUDGMENT IS REVERSED. 

FN1  SECTION 1 OF THE ACT OF JULY 2, 1890, C. 647, 26 STAT. 209, AS
AMENDED, 15 U.S.C. SEC. 1. 

FN2  15 U.S.C. SEC. 29; 28 U.S.C. SEC. 2101. 
..END :
















STAINBACK V. MO HOCK KE LOK PO, 336 U.S. 368 


ARGUED JANUARY 11-12, 1949.  - DECIDED MARCH 14, 1949.  - 74 F.SUPP. 
852, REVERSED. 


1.  SECTION 266 OF THE JUDICIAL CODE (NOW 28 U.S.C. SECS. 2281, 1253,
ETC.), WHICH REQUIRED THAT A SUIT TO ENJOIN STATE OFFICERS FROM
ENFORCING A STATE STATUTE ON THE GROUND OF UNCONSTITUTIONALITY BE HEARD
AND DETERMINED BY A DISTRICT COURT OF THREE JUDGES, AND WHICH
AUTHORIZED A DIRECT APPEAL TO THIS COURT FROM A FINAL DECREE IN SUCH
SUIT, HELD NOT APPLICABLE TO THE TERRITORY OF HAWAII.  PP. 374-380. 

2.  A FINAL JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR HAWAII
IN A SUIT HEARD AND DETERMINED BY THREE JUDGES, ALTHOUGH NOT APPEALABLE
DIRECTLY TO THIS COURT BECAUSE OF THE INAPPLICABILITY OF JUDICIAL CODE
SEC. 266(NOW 28 U.S.C. SEC. 1253), WAS NEVERTHELESS REVIEWABLE IN THE
COURT OF APPEALS AND COULD BE CONSIDERED HERE ON CERTIORARI TO THAT
COURT.  PP. 380-381. 

3.  A FINAL JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR HAWAII,
ERRONEOUSLY CONSTITUTED OF THREE JUDGES UNDER JUDICIAL CODE SEC.
266(NOW 28 U.S.C. SEC. 2281), ENJOINED TERRITORIAL OFFICERS FROM
ENFORCING AN ACT OF THE TERRITORY ON THE GROUND OF
UNCONSTITUTIONALITY.  A DIRECT APPEAL WAS ERRONEOUSLY TAKEN TO THIS
COURT; AN APPEAL WAS ALSO TAKEN TO THE COURT OF APPEALS; AND THIS COURT
WAS PETITIONED TO REVIEW THE CASE IN THE COURT OF APPEALS BY CERTIORARI
BEFORE JUDGMENT.  HELD: AS THE RECORD, ARGUMENTS AND BRIEFS HERE AND
THE OPINIONS OF THE DISTRICT COURT FULLY PRESENT THE CASE DECIDED BY
THE DISTRICT COURT, AND TO AVOID FURTHER FUTILE PROCEEDINGS, THIS COURT
GRANTS CERTIORARI TO REVIEW THE CASE IN THE COURT OF APPEALS BEFORE
JUDGMENT.  PP. 370-371. 

4.  CLAIMING THAT IT WAS INVALID UNDER THE FEDERAL CONSTITUTION,
CERTAIN CHINESE SCHOOL ASSOCIATIONS, A CHINESE SCHOOL, AND A TEACHER OF
CHINESE IN CHINESE LANGUAGE SCHOOLS SUED IN THE UNITED STATES DISTRICT
COURT FOR HAWAII TO ENJOIN OFFICERS OF THE TERRITORY FROM ENFORCING AN
ACT OF THE TERRITORY WHICH FORBIDS THE TEACHING OF FOREIGN LANGUAGES TO
CHILDREN IN CERTAIN CIRCUMSTANCES.  THE SOLE SANCTION FOR ITS
ENFORCEMENT WAS BY INJUNCTION, IN A SUIT FOR WHICH THE DEFENSE OF
UNCONSTITUTIONALITY WOULD BE AVAILABLE.  THE ACT HAD NOT BEEN CONSTRUED
BY THE HAWAIIAN COURTS.  HELD:  ASSUMING THE EXISTENCE OF FEDERAL AND
EQUITABLE JURISDICTION, THE DISTRICT COURT, AS A MATTER OF ITS
DISCRETION, SHOULD HAVE REFUSED TO GRANT THE INJUNCTION.  PP. 381-384. 

5.  WHERE EQUITABLE INTERFERENCE WITH STATE AND TERRITORIAL ACTS IS
SOUGHT IN FEDERAL COURTS, JUDICIAL CONSIDERATION OF ACTS OF IMPORTANCE
PRIMARILY TO THE PEOPLE OF THE STATE OR TERRITORY SHOULD, AS A MATTER
OF DISCRETION, BE LEFT BY THE FEDERAL COURTS TO THE COURTS OF THE
LEGISLATING AUTHORITY, UNLESS EXCEPTIONAL CIRCUMSTANCES COMMAND A
DIFFERENT COURSE.  PP. 383-384. 

STAINBACK, GOVERNOR OF THE TERRITORY OF HAWAII, ET AL. V. MO HOCK KE
LOK PO, AN ELEEMOSYNARY CORPORATION, ET AL. 

NO. 52.  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF HAWAII* . 

*TOGETHER WITH NO. 474, STAINBACK, GOVERNOR OF THE TERRITORY OF
HAWAII, ET AL. V. MO HOCK KE LOK PO, AN ELEEMOSYNARY CORPORATION, ET
AL., ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

RESPONDENTS SUED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF HAWAII TO ENJOIN OFFICERS OF THE TERRITORY FROM ENFORCING AN ACT OF
THE TERRITORY CHALLENGED AS INVALID UNDER THE FEDERAL CONSTITUTION. 
THE SUIT WAS HEARD AND DETERMINED BY A COURT OF THREE JUDGES, WHICH
GRANTED THE INJUNCTION.  74 F.SUPP.  852.  THE DEFENDANTS TOOK A DIRECT
APPEAL TO THIS COURT (NO. 52) AND AN APPEAL TO THE COURT OF APPEALS. 
THEY ALSO PETITIONED THIS COURT FOR REVIEW OF THE CASE IN THE COURT OF
APPEALS BY CERTIORARI BEFORE JUDGMENT (NO. 474).  IN NO. 52, THE APPEAL
IS DISMISSED; IN NO. 474, CERTIORARI IS GRANTED, THE JUDGMENT IS
REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO DISMISS THE COMPLAINT.  P. 384. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE APPEAL IN NO. 52, STAINBACK, GOVERNOR OF THE TERRITORY OF HAWAII,
ET AL. V. MO HOCK KE LOK PO, AN ELEEMOSYNARY CORPORATION, ET AL., AND
THE PETITION FOR WRIT OF CERTIORARI IN NO. 474, A CASE WITH THE SAME
SHORT TITLE, SEEK REVIEW OF A JUDGMENT OF THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF HAWAII.  THIS JUDGMENT WAS ENTERED BY A
SPECIAL THREE-JUDGE COURT THAT WAS CALLED PURSUANT TO JUDICIAL CODE
SEC. 266, AND BY THAT SECTION'S PROVISION WAS BROUGHT DIRECTLY HERE ON
MAY 7, 1948, IN CASE NO. 52.  TO GUARD AGAINST A FRUSTRATION OF REVIEW
BY THIS COURT'S REFUSAL TO ACCEPT JURISDICTION, A TIMELY APPEAL BY THE
APPELLANTS HERE IN NO. 52 HAS BEEN TAKEN BY THEM IN NO. 474 TO THE
COURT OF APPEALS FOR THE NINTH CIRCUIT.  NO JUDGMENT ON THAT APPEAL HAS
BEEN ENTERED BY THE COURT OF APPEALS; AND APPELLANTS THERE, THE
GOVERNOR OF HAWAII ET AL., PETITIONED HERE ON DECEMBER 21, 1948, FOR
THE ALLOWANCE OF A WRIT OF CERTIORARI UNDER 28 U.S.C. SEC. 1254(1). 
FN1 

A JURISDICTIONAL QUESTION AS TO WHETHER JUDICIAL CODE SEC. 266 WAS
APPLICABLE IN THE TERRITORY OF HAWAII ARISES IN NO. 52.  IT WAS
POSTPONED BY ORDER OF THIS COURT ON JUNE 1, 1948, TO THE HEARING OF
THAT CASE ON THE MERITS.  THIS COURT POSTPONED ACTION ON THE PETITION
FOR CERTIORARI IN NO. 474 UNTIL THE HEARING OF NO. 52 ON THE MERITS. 
AS THE RECORD, ARGUMENTS AND BRIEFS HERE AND THE OPINIONS BELOW FULLY
PRESENT THE CASE DECIDED BY THE DISTRICT COURT, TO AVOID FURTHER FUTILE
PROCEEDINGS WE NOW GRANT THE PETITION FOR THE WRIT OF CERTIORARI TO THE
COURT OF APPEALS BEFORE ITS DECREE AND PROCEED IN NO. 474 TO A REVIEW
OF THE JUDGMENT OF THE DISTRICT COURT OF HAWAII.  THE OPINIONS APPEAR
IN 74 F.SUPP.  852, MO HOCK KE LOK PO V. STAINBACK. 

RESPONDENTS HERE WERE PLAINTIFFS IN THE TRIAL COURT.  THEY ARE
CHINESE SCHOOL ASSOCIATIONS, A CHINESE SCHOOL, ALL GIVING INSTRUCTION
IN CHINESE, AND A TEACHER OF CHINESE IN CHINESE LANGUAGE SCHOOLS. 
AFTER DECEMBER 7, 1941, THESE SCHOOLS CLOSED AND HAVE NOT REOPENED. 
PRIOR TO THAT DATE THEY HAD MORE THAN 2,000 PUPILS, SEVERAL HUNDRED OF
WHOM WERE IN THE FIRST AND SECOND GRADE, AND NUMEROUS TEACHERS.  UNDER
JUDICIAL CODE SEC. 266 THEY SOUGHT AN INJUNCTION AGAINST OFFICERS OF
THE TERRITORY OF HAWAII CHARGED BY LAW WITH THE ADMINISTRATION OF AN
ACT OF THE TERRITORY "REGULATING THE TEACHING OF FOREIGN LANGUAGES TO
CHILDREN,"  FN2  FROM ENFORCING IT IN ANY PARTICULAR AGAINST THE
TEACHING OF FOREIGN LANGUAGES TO THE RESPONDENTS' PUPILS. 

THE ACT WAS GROUNDED ON A LEGISLATIVE FINDING "THAT THE STUDY AND
PERSISTENT USE OF FOREIGN LANGUAGES BY CHILDREN OF AVERAGE INTELLIGENCE
IN THEIR EARLY AND FORMATIVE YEARS DEFINITELY DETRACT FROM THEIR
ABILITY PROPERLY TO UNDERSTAND AND ASSIMILATE THEIR NORMAL STUDIES IN
THE ENGLISH LANGUAGE."  REVISED LAWS OF HAWAII (1945), SEC. 1871. 
"SCHOOL" WAS DEFINED AS ANY TEACHING REGULARLY OF TWO OR MORE PERSONS
IN A GROUP.  FN3  REQUIREMENTS FOR PUPILS AND TEACHERS IN FOREIGN
LANGUAGE SCHOOLS WERE SET OUT.  FN4  VISITATION OF THE FOREIGN LANGUAGE
SCHOOLS BY APPROPRIATE OFFICIALS FOR ENFORCEMENT PURPOSES WAS
AUTHORIZED.  SEC. 1875.  THE ONLY SANCTION FOR ENFORCEMENT IS BY
INJUNCTION.  FN5  THIS LACK OF COERCION BY FINE OR IMPRISONMENT AND THE
LIMITATION OF ENFORCEMENT TO INJUNCTION ARE IMPORTANT FACTORS IN OUR
CONCLUSION UPON NO. 474. 

THE COMPLAINT ALLEGED THAT IN VIOLATION OF THE FIFTH AMENDMENT THE
ACT DEPRIVED PLAINTIFF SCHOOLS OF THE RIGHT TO MANAGE THEIR PROPERTY BY
CONTRACTING WITH INSTRUCTORS AND PARENTS FOR THE TEACHING OF CHINESE,
AND THE PLAINTIFF TEACHER OF CHINESE OF HIS RIGHT TO FOLLOW HIS
OCCUPATION.  FN6  SEE FARRINGTON V. TOKUSHIGE, 273 U.S. 284, 299.  THE
JUDGMENT OF THE SPECIAL DISTRICT COURT GRANTED A SWEEPING PERMANENT
INJUNCTION AGAINST ENFORCEMENT OF THE HAWAIIAN ACT.  AS OUR CONCLUSIONS
ARE BASED SOLELY UPON PROCEDURAL ISSUES, ANY FURTHER DISCUSSION OF THE
FACTS OR OF THE LAW APPLICABLE TO THE MERITS IS NOT APPROPRIATE. 

THE COMPLAINT ASKED FOR AND OBTAINED A THREE-JUDGE COURT UNDER THE
PROVISIONS OF THE JUDICIAL CODE SEC. 266.  FN7  THE MINUTE ENTRIES OF
PROCEEDINGS AND TRIAL AND THE OPINION RE APPLICABILITY OF SEC. 266,
JUDICIAL CODE, 74 F.SUPP.  AT 858, SHOW SUGGESTIONS THAT A SPECIAL
DISTRICT COURT UNDER JUDICIAL CODE SEC. 266 CANNOT BE CALLED FOR
HAWAII.  THE STATEMENT OF JURISDICTION LAID BARE THE PROBLEM WITH
COMMENDABLE FRANKNESS.  IT LIES AT THE THRESHOLD OF ANY CONSIDERATION
OF THIS APPEAL.  FN8 

WITHIN THE PRESENT DECADE, THIS COURT SUMMARIZED IN PHILLIPS V.
UNITED STATES, 312 U.S. 246, THE PURPOSE AND EFFECT OF SEC. 266 AND
EXTRACTED FROM ITS HISTORY AND THE PRECEDENTS FOR THE SECTION'S
APPLICATION A CONGRESSIONAL REQUIREMENT OF STRICT CONSTRUCTION TO
PROTECT OUR APPELLATE DOCKET WHILE ASSURING THE STATES THAT
EXCEPTIONALLY CAREFUL JUDICIAL CONSIDERATION WOULD GUARD THEM AGAINST
ALL ASSAULTS, THROUGH FEDERAL COURTS, AGAINST THEIR LEGISLATIVE
STATUTES OR ADMINISTRATIVE BOARD ORDERS BY APPLICATIONS FOR INJUNCTION
WHEN THOSE ASSAULTS WERE BASED ON THE FEDERAL CONSTITUTION.  PP. 250
51.  WHILE WE TAKE JUDICIAL NOTICE THAT SINCE THE PHILLIPS CASE AIR
CARRIAGE HAS BROUGHT HAWAII CLOSER TO THE CONTINENT,  FN9  THE
INTERFERENCE WITH THE NORMAL ADJUDICATORY AND APPELLATE PROCESSES OF
THE FEDERAL JUDICIAL SYSTEM AND OUR DOCKET PERSISTS.  THE POWER TO CALL
A PANEL OF JUDGES UNDER SEC. 266 IN HAWAII IS TO BE EXAMINED IN THE
LIGHT OF THE PHILLIPS CASE. 

HAWAII IS STILL A TERRITORY BUT A TERRITORY IN WHICH THE CONSTITUTION
AND LAWS OF THE UNITED STATES GENERALLY ARE APPLICABLE.  31 STAT. 141,
SEC. 5, AS AMENDED 48 U.S.C. SEC. 495; DUNCAN V. KAHANAMOKU, 327 U.S.
304, 317.  NOT ONLY ITS FEDERAL COURTS BUT ALSO ITS TERRITORIAL COURTS
ARE OF COURSE SUBJECT TO CONGRESSIONAL LEGISLATION.  48 U.S.C. SEC.
631, ET SEQ. THE ORGANIC ACT FOR HAWAII, SEC. 86,  FN10  PROVIDED IN
1900: 

"THAT THERE SHALL BE ESTABLISHED IN SAID TERRITORY A DISTRICT COURT
TO CONSIST OF ONE JUDGE, ...  SAID COURT SHALL HAVE, IN ADDITION TO THE
ORDINARY JURISDICTION OF DISTRICT COURTS OF THE UNITED STATES,
JURISDICTION OF ALL CASES CONGNIZABLE IN A CIRCUIT COURT OF THE UNITED
STATES, AND SHALL PROCEED THEREIN IN THE SAME MANNER AS A CIRCUIT
COURT; ...  "  31 STAT. 158. 

WHEN INCORPORATED INTO THE CODE, THIS COURT WAS GIVEN "THE
JURISDICTION OF DISTRICT COURTS OF THE UNITED STATES, AND SHALL PROCEED
THEREIN IN THE SAME MANNER AS A DISTRICT COURT."  48 U.S.C. SEC. 642. 
IT NOW HAS THAT JURISDICTION.  FN11  THE ONLY CHANGE THAT COULD BE
CONSIDERED SIGNIFICANT IS THE MORE DEFINITE INTEGRATION OF THE DISTRICT
COURT FOR HAWAII INTO THE FEDERAL JUDICIAL SYSTEM BY DEFINITION.  FN12
AS JURISDICTION OF THIS COURT ON APPEAL DEPENDS UPON WHETHER OR NOT A
SPECIAL THREE-JUDGE COURT WAS PROPERLY CALLED  FN13  AND NOT UPON THE
POWER OF THIS COURT TO REVIEW UNDER JUDICIAL CODE SEC. 266, WE NEED NOT
ANALYZE THE METHOD OF REVIEW OF THE JUDGMENTS OF THE DISTRICT COURT OF
HAWAII.  FN14 

OUR ISSUE IS NARROWED TO THE INQUIRY OF WHETHER CONGRESS INTENDED
THAT JUDICIAL CODE SEC. 266 SHOULD APPLY IN THE TERRITORY OF HAWAII
UNDER CIRCUMSTANCES THAT WOULD REQUIRE ITS APPLICATION IN A SIMILAR
SUIT IN A STATE.  CONGRESS IN DISCUSSING AN AMENDMENT TO THE MANN
ELKINS ACT, WHICH AMENDMENT EVOLVED INTO THIS SECTION, CONSIDERED THE
GEOGRAPHICAL DIFFICULTIES INHERENT IN THE REQUIREMENT OF A THREE-JUDGE
COURT AND THE BURDEN THUS PLACED ON THE FUNCTIONING OF THE FEDERAL
JUDICIAL SYSTEM, BUT DECIDED THAT SUCH CONSIDERATIONS WERE OUTWEIGHED
BY THE DESIRABILITY OF HAVING THE CONSTITUTIONALITY OF A STATE STATUTE
PASSED ON BY A COURT COMPARABLE TO THE COURT OF LAST RESORT OF THE
STATE.  45 CONG. REC. 7253-57.  IT IS TO BE NOTED THAT NOWHERE IN SEC.
266 IS MENTION MADE OF TERRITORIES NOR AS FAR AS HAS BEEN CALLED TO OUR
ATTENTION IN THE CONGRESSIONAL DEBATES AND REPORTS RELATING TO THIS

WHILE, OF COURSE, GREAT RESPECT IS TO BE PAID TO THE ENACTMENTS OF A
TERRITORIAL LEGISLATURE BY ALL COURTS AS IT IS TO THE ADJUDICATIONS OF
TERRITORIAL COURTS,  FN15  THE PREDOMINANT REASON FOR THE ENACTMENT OF
JUDICIAL CODE SEC. 266 DOES NOT EXIST AS RESPECTS TERRITORIES.  THIS
REASON WAS A CONGRESSIONAL PURPOSE TO AVOID UNNECESSARY INTERFERENCE
WITH THE LAWS OF A SOVEREIGN STATE.  FN16 IN OUR DUAL SYSTEM OF
GOVERNMENT, THE POSITION OF THE STATE AS SOVEREIGN OVER MATTERS NOT
RULED BY THE CONSTITUTION REQUIRES A DEFERENCE TO STATE LEGISLATIVE
ACTION BEYOND THAT REQUIRED FOR THE LAWS OF A TERRITORY.  FN17 A
TERRITORY IS SUBJECT TO CONGRESSIONAL REGULATION.  FN18 

WHEN THE LONG-ESTABLISHED RULE OF STRICT CONSTRUCTION OF JUDICIAL
CODE SEC. 266 AND THAT OF PROTECTION OF THE DOCKET OF THIS COURT IS
ALSO CONSIDERED IN CONJUNCTION WITH THE NECESSARY INTERFERENCE WITH THE
NORMAL OPERATIONS OF THE FEDERAL JUDICIAL SYSTEM BY THE ESTABLISHMENT
OF THE THREEJUDGE REQUIREMENT IN HAWAII, WE ARE NOT PERSUADED THAT
CONGRESS INTENDED SEC. 266 TO COVER HAWAII.  SEE 45 CONG. REC. 7253
57.  DESPITE ITS GENERALITY THE WORDS OF SEC. 266 HAVE BEEN STRICTLY
CONSTRUED SO THAT "STATUTE OF A STATE" DOES NOT INCLUDE ORDINANCES;
"OFFICER OF SUCH STATE" MEANS ONE WITH AUTHORITY TO EXECUTE OR
ADMINISTER A STATE-WIDE POLICY.  FN19 

IT IS NOT MERELY THE ABSENCE OF THE WORD "TERRITORY" FROM SEC. 266
THAT LEADS US TO THIS CONCLUSION.  WE RECOGNIZE THAT IN SOME SITUATIONS
THE WORD "STATE" INCLUDES TERRITORY.  ANDRES V. UNITED STATES, 333 U.S.
740.  IN THAT CASE WE THOUGHT THE PURPOSE OF CONGRESS WOULD BE
FRUSTRATED BY A HOLDING THAT THE WORD "STATE" IN A FEDERAL STATUTE
PROVIDING FOR EXECUTION OF A CRIMINAL IN "THE MANNER PRESCRIBED BY THE
LAWS OF THE STATE WITHIN WHICH THE SENTENCE IS IMPOSED" DID NOT INCLUDE
"TERRITORY."  THERE WE HELD STATE INCLUDED TERRITORY.  FN20 HERE THE
PURPOSE OF THE STATUTE TO PROTECT STATE SOVEREIGNTY IS NOT FURTHERED BY
AN INTERPRETATION OF STATE TO INCLUDE TERRITORY. 

A FORMER OPINION OF THIS COURT LENDS STRENGTH TO THIS
INTERPRETATION.  IN FARRINGTON V. TOKUSHIGE, 273 U.S. 284, DECIDED IN
THE UNITED STATES DISTRICT COURT OF HAWAII ON JULY 21, 1925, A
TEMPORARY INJUNCTION FORBIDDING TERRITORIAL OFFICERS FROM ENFORCING A
TERRITORIAL STATUTE SOMEWHAT SIMILAR TO THE ONE HERE INVOLVED WAS
GRANTED BY A SINGLE DISTRICT JUDGE ON THE GROUND OF THE INVALIDITY OF
THE TERRITORIAL STATUTE UNDER THE FEDERAL CONSTITUTION.  THE CIRCUIT
COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED ON THE SAME GROUND, 11
F.2D 710, AND SO DID THIS COURT ON CERTIORARI.  NO QUESTION WAS RAISED
IN ANY COURT AS TO THE APPLICABILITY OF THE REQUIREMENT OF SEC. 266
THAT NO SUCH INJUNCTION SHOULD BE GRANTED AGAINST A STATE WITHOUT THREE
JUDGES.  IF SEC. 266 APPLIED TO HAWAII, THE INTERLOCUTORY ORDER OF
INJUNCTION WAS ENTERED WITHOUT JURISDICTION.  THE COURT OF APPEALS AND
THIS COURT WERE WITHOUT JURISDICTION OVER THE APPEAL.  WHILE IT IS
SOMETIMES SAID THAT ACTION, WHERE THE POWER TO ACT IS UNQUESTIONED, CAN
HARDLY BE SAID TO BE A PRECEDENT FOR A FUTURE CASE,  FN21  WHERE AS
HERE THE RESPONSIBILITY WAS ON THE COURTS TO SEE THAT THE THREE-JUDGE
RULE WAS FOLLOWED, WE THINK IT SIGNIFICANT THAT NO ONE SOUGHT TO APPLY
SEC. 266 TO HAWAII.  FN22 

WE HOLD THAT JUDICIAL CODE SEC. 266 IS NOT APPLICABLE TO HAWAII, THAT
WE ARE WITHOUT JURISDICTION IN CASE NO. 52 AND THAT THE APPEAL THEREIN
MUST BE DISMISSED. 

WE TURN NOW TO NO. 474, HERE ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS OF THE NINTH CIRCUIT BEFORE THE ENTRY OF A DECREE IN THAT
COURT.  28 U.S.C. SEC. 2101(D).  WHAT WE HAVE SAID CONCERNING THE FINAL
JUDGMENT IN THE DISTRICT COURT OF HAWAII ESTABLISHES THAT THE JUDGMENT
WAS ENTERED BY A COURT IMPROPERLY CONSTITUTED UNDER JUDICIAL CODE SEC.
266.  NEVERTHELESS THIS ORDER IS SUBJECT TO REVIEW IN THE COURT OF
APPEALS.  FN23  IT IS THE FINAL ORDER OF A DISTRICT COURT ALTHOUGH
ERRONEOUSLY HEARD BY THREE JUDGES INSTEAD OF ONE AND NOT APPEALABLE
DIRECTLY HERE BECAUSE NOT COVERED BY SEC. 266.  BUT AS A FINAL ORDER OF
THE DISTRICT COURT, IT IS REVIEWABLE IN THE COURT OF APPEALS N24, AND
CAN BE CONSIDERED HERE.    ANOTHER PROCEDURAL MATTER LEADS US TO REFUSE
CONSIDERATION OF CASE NO. 474 ON THE MERITS.  RESPONDENTS IN THE UNITED
STATES DISTRICT COURT SOUGHT AND OBTAINED INJUNCTIVE RELIEF FROM THE
ENFORCEMENT OF A TERRITORIAL LAW BY A PROCEEDING UNDER 28 U.S.C. SEC.
41(1) ON THE PLEA THAT THE LAW VIOLATES THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT BECAUSE RESPONDENTS BY THE LAW WERE DEPRIVED OF LIBERTY
AND OF PROPERTY.  FN25  THE ALLEGATIONS OF IRREPARABLE INJURY CONSIST
OF AN ASSERTION THAT IT WILL BE NECESSARY TO INCUR A COMPARATIVELY
LARGE LIABILITY FOR BUILDING REPAIRS AND EMPLOYMENT OF TEACHERS ON THE
PART OF THE RESPONDENT SCHOOLS BEFORE THE ACT WILL BE VIOLATED, SUMS
THAT WILL BE LOST IF THE ACT CAN BE ENFORCED CONSTITUTIONALLY.  THE
TEACHER CLAIMS TO SUFFER IRREPARABLE INJURY BECAUSE HE CANNOT FOLLOW
HIS OCCUPATION.  AS THE DISTRICT COURT FOUND IRREPARABLE INJURY TO ALL
RESPONDENTS IN THE JURISDICTIONAL AMOUNT, WE ASSUME THERE IS BOTH
FEDERAL AND EQUITABLE JURISDICTION.  FN26  FURTHERMORE, THERE IS NO
PROBLEM AS TO WHETHER OR NOT THERE IS AN ADEQUATE LEGAL REMEDY IN THE
FEDERAL COURTS.  FN27  THERE IS NONE.  THE SOLE SANCTION, SEE NOTE 5
SUPRA, IS BY THE INSTITUTION OF PROCEEDINGS IN EQUITY IN TERRITORIAL
COURTS WHEREBY THE EXTRAORDINARY REMEDIES OF PROHIBITORY AND MANDATORY
INJUNCTIONS ARE UTILIZED TO STOP VIOLATIONS OF THE ACT.  THE
RESPONDENTS HERE, IF SUCH PROCEEDINGS WERE BROUGHT, WOULD HAVE SUCH
DEFENSES AS THE LAWS OF THE TERRITORY ALLOW, INCLUDING OF COURSE
DEFENSES BASED UPON THE PRESENT ISSUES OF UNCONSTITUTIONALITY UNDER THE
FEDERAL CONSTITUTION. 

WE ARE OF THE VIEW, HOWEVER, THAT THE UNITED STATES DISTRICT COURT
FOR HAWAII, AS A MATTER OF ITS DISCRETION, SHOULD HAVE REFUSED TO GRANT
THIS INJUNCTION.  THE COMPLAINT CALLED FOR BROAD CONSIDERATION OF THE
APPLICATION OF THE ACT TO FOREIGN LANGUAGE SCHOOLS AND TEACHERS.  IT
HAD NOT BEEN CONSTRUED BY THE HAWAIIAN COURTS.  JUDGE MCLAUGHLIN
POINTED OUT IN HIS CONCLUSIONS OF LAW ON A MOTION FOR PRELIMINARY
INJUNCTION BEFORE THE REQUEST FOR A THREE-JUDGE COURT THAT THIS LAW 

"  ... CARRIES NO CRIMINAL PENALTIES FOR INFRACTIONS.  ENFORCEMENT IS
IN EQUITY IN THE CIRCUIT COURTS OF THE TERRITORY.  PLAINTIFFS HAVE NO
REASON TO FEAR A COURT OF EQUITY, AND THERE IS EVERY REASON TO BELIEVE
THAT THEIR CONSTITUTIONAL RIGHTS WOULD BE FULLY PROTECTED IN THE EQUITY
COURTS OF THE TERRITORY AND THAT AN APPEAL, IF NEED BE, EVENTUALLY
COULD BE HAD TO THE UNITED STATES SUPREME COURT." 

THE STATEMENT APPLIES AS WELL TO THE FINAL INJUNCTION.  ENTIRELY
ASIDE FROM THE QUESTION OF THE PROPRIETY OF AN INJUNCTION IN ANY COURT,
FN28  TERRITORIAL LIKE STATE COURTS ARE THE NATURAL SOURCES FOR THE
INTERPRETATION AND APPLICATION OF THE ACTS OF THEIR LEGISLATURES AND
EQUALLY OF THE PROPRIETY OF INTERFERENCE BY INJUNCTION.  FN29  WE THINK
THAT WHERE EQUITABLE INTERFERENCE WITH STATE AND TERRITORIAL ACTS IS
SOUGHT IN FEDERAL COURTS, JUDICIAL CONSIDERATION OF ACTS OF IMPORTANCE
PRIMARILY TO THE PEOPLE OF A STATE OR TERRITORY SHOULD, AS A MATTER OF
DISCRETION, BE LEFT BY THE FEDERAL COURTS TO THE COURTS OF THE
LEGISLATING AUTHORITY UNLESS EXCEPTIONAL CIRCUMSTANCES COMMAND A
DIFFERENT COURSE.  WE FIND NO SUCH CIRCUMSTANCES IN THIS CASE. 

THE APPEAL IN NO. 52 IS DISMISSED. 

THE JUDGMENT IN NO. 474 IS REVERSED AND THE CAUSE REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO DISMISS THE COMPLAINT. 

FN1  "SEC.  1254.  COURTS OF APPEALS; CERTIORARI; APPEAL; CERTIFIED
QUESTIONS 

"CASES IN THE COURTS OF APPEALS MAY BE REVIEWED BY THE SUPREME COURT
BY THE FOLLOWING METHODS: 

"(1)  BY WRIT OF CERTIORARI GRANTED UPON THE PETITION OF ANY PARTY TO
ANY CIVIL OR CRIMINAL CASE, BEFORE OR AFTER RENDITION OF JUDGMENT OR
DECREE; ...  " 

FN2  SESSION LAWS OF HAWAII 1943, ACT 104; REVISED LAWS OF HAWAII
1945, C. 31. 

FN3  "SEC.  1872.  DEFINITIONS.  AS USED IN THIS CHAPTER: 

"'SCHOOL' MEANS ANY PERSON, FIRM, GROUP OF PERSONS, UNINCORPORATED
ASSOCIATION, CORPORATION, ESTABLISHMENT, OR INSTITUTION, WHICH TEACHES,
WITH OR WITHOUT FEES, COMPENSATION OR OTHER CHARGES THEREFOR, ANY
LANGUAGE OTHER THAN THE ENGLISH LANGUAGE, AS A COURSE OF STUDY, TO TWO
OR MORE PERSONS AS A GROUP, AS A REGULAR AND CUSTOMARY PRACTICE." 

FN4  "NO CHILD SHALL BE TAUGHT A FOREIGN LANGUAGE IN ANY SCHOOL
UNLESS HE SHALL COMPLY WITH ONE OF THE FOLLOWING REQUIREMENTS:  (A)
THAT HE SHALL HAVE PASSED THE FOURTH GRADE IN PUBLIC SCHOOL OR ITS
EQUIVALENT, AND SHALL PASS FROM TIME TO TIME IN EACH SUCCEEDING GRADE A
STANDARD TEST IN ENGLISH COMPOSITION AND READING CONDUCTED BY OR UNDER
THE DIRECTION OF THE DEPARTMENT OF PUBLIC INSTRUCTION ATTAINING A SCORE
NOT LOWER THAN NORMAL FOR HIS GRADE; OR (B) THAT HE SHALL HAVE PASSED
THE EIGHTH GRADE IN PUBLIC SCHOOL OR ITS EQUIVALENT; OR (C) THAT HE
SHALL HAVE ATTAINED THE AGE OF FIFTEEN YEARS."  R.L. HAW.  1945, SEC.
1873. 

"NO SCHOOL SHALL PERMIT THE TEACHING OF ANY FOREIGN LANGUAGE TO ANY
CHILD UNDER THE AGE OF FIFTEEN UNLESS THE TEACHER SHALL HAVE BEEN
EXAMINED AND CERTIFIED BY A BOARD OF EXAMINERS OF THREE PERSONS
APPOINTED BY THE COMMISSIONERS OF PUBLIC INSTRUCTION TO BE REASONABLY
WELL VERSED IN THE USAGE AND IDIOM OF BOTH THE ENGLISH LANGUAGE AND THE
FOREIGN LANGUAGE TO BE TAUGHT BY SUCH TEACHER.  ...  "  R.L. HAW. 
1945, SEC. 1874. 

FN5  "SEC.  1876.  INJUNCTIVE ENFORCEMENT.  IN THE EVENT ANY SCHOOL
OR ANY PERSON SHALL BE FOUND TO BE VIOLATING, OR FAILING TO COMPLY WITH
ANY OF THE REQUIREMENTS OF, THIS CHAPTER, OR THERE SHALL BE REASONABLE
CAUSE TO BELIEVE THAT SUCH SCHOOL OR PERSON IS VIOLATING, OR FAILING TO
COMPLY WITH THE REQUIREMENTS OF, THIS CHAPTER, THE ATTORNEY GENERAL, AT
HIS OWN INSTANCE OR AT THE REQUEST OF THE DEPARTMENT OF PUBLIC
INSTRUCTION, SHALL INSTITUTE APPROPRIATE PROCEEDINGS IN EQUITY IN THE
CIRCUIT IN WHICH THE VIOLATION OCCURS TO ENJOIN THE PERFORMANCE OF ANY
ACTS OR PRACTICES FORBIDDEN BY THIS CHAPTER, OR TO REQUIRE SUCH SCHOOL
OR PERSON TO COMPLY WITH THE REQUIREMENTS OF THIS CHAPTER. 
JURISDICTION TO HEAR AND DISPOSE OF ALL ACTIONS UNDER THIS SECTION IS
HEREBY CONFERRED UPON EACH CIRCUIT JUDGE, AND EACH SUCH JUDGE SHALL
HAVE POWER TO ISSUE SUCH ORDERS AND DECREES, BY WAY OF INJUNCTION,
MANDATORY INJUNCTION OR OTHERWISE, AS MAY BE APPROPRIATE TO ENFORCE THE
PROVISIONS OF THIS CHAPTER.  IN THE EVENT ANY RESPONDENT OR RESPONDENTS
SHALL FAIL OR REFUSE TO COMPLY WITH ANY SUCH ORDER OR DECREE, THE
COURT, IN ADDITION TO ANY OTHER POWERS HEREBY GRANTED, SHALL HAVE POWER
TO ENJOIN THE OPERATION AND CONDUCT OF SUCH SCHOOL UNTIL AND UNLESS
THIS CHAPTER IS COMPLIED WITH OR SATISFACTORY ASSURANCE IS GIVEN THAT
THIS CHAPTER WILL BE COMPLIED WITH.  THE COUNTY ATTORNEY OF EACH COUNTY
SHALL, AT THE REQUEST OF THE ATTORNEY GENERAL, CONDUCT SUCH PROCEEDING
IN BEHALF OF THE TERRITORY.  ALL SUCH SUITS SHALL BE BROUGHT IN THE
NAME OF THE TERRITORY BY THE ATTORNEY GENERAL."  R.L. HAW.  1945. 

FN6  THERE WAS A FURTHER ALLEGATION OF A DENIAL TO PLAINTIFFS OF
RIGHTS UNDER 8 U.S.C. SECS. 41, 42, 43.  THIS WAS NOT CONSIDERED BY THE
DISTRICT COURT OR RELIED UPON IN BRIEF OR ARGUMENT HERE.  WE DO NOT
CONSIDER IT. 

FN7  28 U.S.C. SEC. 380(SEE REDISTRIBUTION WITHOUT CHANGE OF
IMPORTANCE IN THIS CASE, 28 U.S.C. SECS. 1253, 2101, 2281, 2284, AS
REVISED BY THE ACT OF JUNE 25, 1948, 62 STAT. 928, 964, 968, EFFECTIVE
SEPTEMBER 1, 1948): 

"NO INTERLOCUTORY INJUNCTION SUSPENDING OR RESTRAINING THE
ENFORCEMENT, OPERATION, OR EXECUTION OF ANY STATUTE OF A STATE BY
RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT
OR EXECUTION OF SUCH STATUTE,  ...  SHALL BE ISSUED OR GRANTED  ...
UNLESS THE APPLICATION FOR THE SAME SHALL BE PRESENTED TO A JUSTICE OF
THE SUPREME COURT OF THE UNITED STATES, OR TO A CIRCUIT OR DISTRICT
JUDGE, AND SHALL BE HEARD AND DETERMINED BY THREE JUDGES, ...  WHENEVER
SUCH APPLICATION AS AFORESAID IS PRESENTED TO A JUSTICE OF THE SUPREME
COURT, OR TO A JUDGE, HE SHALL IMMEDIATELY CALL TO HIS ASSISTANCE TO
HEAR AND DETERMINE THE APPLICATION TWO OTHER JUDGES:  ...  AN APPEAL
MAY BE TAKEN DIRECT TO THE SUPREME COURT OF THE UNITED STATES FROM THE
ORDER GRANTING OR DENYING, AFTER NOTICE AND HEARING, AN INTERLOCUTORY
INJUNCTION IN SUCH CASE.  ...  THE REQUIREMENT RESPECTING THE PRESENCE
OF THREE JUDGES SHALL ALSO APPLY TO THE FINAL HEARING IN SUCH SUIT IN
THE DISTRICT COURT; AND A DIRECT APPEAL TO THE SUPREME COURT MAY BE
TAKEN FROM A FINAL DECREE GRANTING OR DENYING A PERMANENT INJUNCTION IN
SUCH SUIT." 

AN INTERLOCUTORY INJUNCTION WAS SOUGHT IN THE COMPLAINT, FILED JUNE
26, 1947, BUT THE RECORD PRESENTED TO US DOES NOT SHOW THAT ONE WAS
ISSUED ALTHOUGH THE FINAL INJUNCTION WAS NOT ISSUED UNTIL FEBRUARY 11,
1948.  AN OPINION ON THE APPLICABILITY OF JUDICIAL CODE SEC. 266, FILED
OCTOBER 22, 1947, SAYS THAT "ALL PERTINENT ADJECTIVE PREREQUISITES
SPECIFIED BY THE SUPREME COURT IN AYRSHIRE COLLIERIES CORPORATION V.
UNITED STATES, 331 U.S. 132,  ...  AND IN FARRINGTON V. T. TOKUSHIGE,
SUPRA, NECESSARY TO MAKE OPERATIVE THREE JUDGE PARTICIPATION IN THE
INSTANT SUIT HAVE OCCURRED.  AN INTERLOCUTORY INJUNCTION HAS BEEN
SOUGHT AND PASSED TO A HEARING IN THE DISTRICT COURT AT HONOLULU AND A
SUBSTANTIAL FEDERAL QUESTION OF TRANSCENDING LIMITATIONS OF THE 5TH
AMENDMENT TO THE CONSTITUTION HAS BEEN SUFFICIENTLY ALLEGED IN THE
AMENDED COMPLAINT."  74 F.SUPP.  858, 859. 

DESPITE APPELLANTS' SUGGESTION THAT THE APPLICATION FOR AN
INTERLOCUTORY INJUNCTION WAS NOT PRESSED, WE THINK THAT IN VIEW OF THIS
LANGUAGE IT WOULD BE HYPERCRITICAL FOR US TO DISMISS THIS APPEAL FOR
FAILURE OF THE RECORD TO SHOW MORE DEFINITELY THAT THE PRAYER FOR AN
INTERLOCUTORY JUDGMENT WAS PRESSED.  BUT SEE HEALY V. RATTA, 289 U.S.
701, WHERE THE CORRESPONDENCE FILE IN THIS COURT SHOWS RECEIPT OF A
SUPPLEMENTAL RECORD CONTAINING A FORMAL WAIVER OF PRAYER FOR TEMPORARY
RELIEF.  AYRSHIRE CORP. V. UNITED STATES, SUPRA, AT 140; STRATTON V.
ST. LOUIS S.W.R. CO., 282 U.S. 10.  COMPARE 28 U.S.C. SEC. 1253 AND 28
U.S.C. (1946 ED., SUPP. II) PP. 1444, 1453, SHOWING REPEAL AND
REDISTRIBUTION OF JUDICIAL CODE SEC. 266.  WE THEREFORE ASSUME THAT THE
QUOTED STATEMENT FROM THE DISTRICT COURT OPINION ESTABLISHES THAT THE
REQUEST FOR AN INTERLOCUORY INJUNCTION WAS PRESSED ON THAT COURT. 

FN8  STRATTON V. ST. LOUIS S.W.R. CO., 282 U.S. 10, 13; PHILLIPS V.
UNITED STATES, 312 U.S. 246, 248. 

FN9  AIR TRAVEL TO HAWAII IS RECOGNIZED BY THE ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS AS A NECESSARY TRAVEL EXPENSE FOR JUDGES
UNDER 28 U.S.C. SEC. 604(7). 

FN10  31 STAT. 158. 

FN11  28 U.S.C. SECS. 451, 91, 1331-59; SEE 28 U.S.C. SEC. 41; SEC.
8, ACT OF JUNE 25, 1948, 62 STAT. 986.  NOTE ARRANGEMENT FOR ALASKA,
ID., SEC. 9, AT P. 986. 

FN12  SEE REVISER'S NOTES TO 28 U.S.C. SECS. 1291, 1292.  CF. MOOKINI
V. UNITED STATES, 303 U.S. 201. 

FN13  RORICK V. BOARD OF COMMISSIONERS OF EVERGLADES DRAINAGE
DISTRICT, 307 U.S. 208, 212. 

FN14  REVIEW OF THE JUDGMENTS OF THE DISTRICT COURT FOR HAWAII WAS
ALLOWED IN THE ORGANIC ACT BY SEC. 86 TO THE NINTH JUDICIAL CIRCUIT IN
THE SAME MANNER AS FROM THE THEN CIRCUIT COURTS TO THE CIRCUIT COURTS
OF APPEALS.  THIS WAS ADJUSTED TO CONFORM TO THE ELIMINATION OF THE
CIRCUIT COURTS BY JUDICIAL CODE SEC. 128 AS AMENDED.  SEE 48 U.S.C.
SEC. 645.  SINCE THIS APPEAL WAS TAKEN, THE REVISION OF THE U.S.C.
TITLE 28, SECS. 1291, 1294, HAS BECOME EFFECTIVE.  UNDER JUDICIAL CODE
SEC. 266 THIS COURT HAD DIRECT REVIEW, JUDICIAL CODE SECS. 128, 238, AT
THE TIME OF APPEAL AND STILL HAS.  28 U.S.C. SEC. 1253 AS REVISED
EFFECTIVE SEPTEMBER 1, 1948. 

FN15  WAIALUA CO. V. CHRISTIAN, 305 U.S. 91, 108; DE CASTRO V. BOARD
OF COMM'RS, 322 U.S. 451, 455. 

FN16  EX PARTE COLLINS, 277 U.S. 565, 567-569. 

FN17  ALTHOUGH JUDICIAL CODE SEC. 266 ORIGINATED IN 1910, 36 STAT.
539, 557, IT WAS NOT UNTIL 1937 THAT THE REQUIREMENT OF A THREE-JUDGE
DISTRICT COURT TO HEAR APPLICATIONS FOR INJUNCTIONS AGAINST THE
ENFORCEMENT OF ACTS OF CONGRESS WAS ENACTED.  50 STAT. 751, 752. 

FN18  CONST., ART. IV, SEC. 3, CL. 2. 

FN19  TO THE CASES ON STRICT CONSTRUCTION OF SEC. 266 CITED IN
PHILLIPS V. UNITED STATES, SUPRA, ADD CITY OF CLEVELAND V. UNITED
STATES, 323 U.S. 329; SPIELMAN MOTOR CO. V. DODGE, 295 U.S. 89; PUBLIC
NAT. BANK OF NEW YORK V. KEATING, 29 F.2D 621; CITY OF DES MOINES V.
DES MOINES GAS CO., 264 F. 506; CALHOUN V. CITY OF SEATTLE, 215 F. 226;
CUMBERLAND TELEPHONE & TELEGRAPH CO. V. CITY OF MEMPHIS, 198 F. 955. 

FN20  SEE ALSO TALBOTT V. SILVER BOW COUNTY, 139 U.S. 438; WYNNE V.
UNITED STATES, 217 U.S. 234, 242; YEUNG V. TERRITORY OF HAWAII, 132
F.2D 374, 377. 

FN21  UNITED STATES V. MORE, 3 CRANCH 159, 172; SNOW V. UNITED
STATES, 118 U.S. 346, 354; CROSS V. BURKE, 146 U.S. 82, 87; LOUISVILLE
TRUST CO. V. KNOTT, 191 U.S. 225, 236; ARANT V. LANE, 245 U.S. 166,
170. 

FN22 STRATTON V. ST. LOUIS S.W.R. CO., 282 U.S. 10, 13.  SEE ALSO
BENEDICTO V. WEST INDIA & PANAMA TELEGRAPH CO., 256 F. 417.  COMPARE
PORTO RICO LIGHT & POWER CO. V. COLOM, 106 F.2D 345, 354-55. 

THE DISTRICT COURT THOUGHT THAT ANY QUESTION BY REASON OF THE
TOKUSHIGE CASE AS TO DIFFERENCES BETWEEN THAT COURT AND THE UNITED
STATES DISTRICT COURTS OF THE STATES SO FAR AS THEIR POWERS UNDER SEC.
266 IS CONCERNED, HAD BEEN "EXPRESSLY AND CLEARLY REMOVED BY SUBSEQUENT
SPECIFIC CONGRESSIONAL LEGISLATION.  TITLE 48, SECTION 646, U.S.C.A.,
FEDERAL RULES OF CIVIL PROCEDURE, RULES 1, 65(E), 28 U.S.C.A. FOLLOWING

WE DO NOT THINK THAT EITHER THE SECTION OR THE RULES HAVE ANY EFFECT
UPON THE APPLICABILITY OF SEC. 266 TO THE UNITED STATES DISTRICT COURT
IN HAWAII.  48 U.S.C. SEC. 646(NOW COVERED BY 28 U.S.C. SEC. 2072, SEE
NOTE 26 INFRA) MADE THE RULES APPLICABLE TO HAWAII, BUT THE RULES DO
NOT AFFECT THE QUESTION OF THE APPLICABILITY OF SEC. 266 TO HAWAII. 
RULE 1 STATES THE SCOPE OF THE RULES.  RULE 65(E), INSOFAR AS IT HAS
ANY POSSIBLE BEARING, SAYS MERELY THAT "THESE RULES DO NOT MODIFY  ...
THE ACT OF AUGUST 24, 1937, C. 754, SEC. 3, RELATING TO ACTIONS TO
ENJOIN THE ENFORCEMENT OF ACTS OF CONGRESS."  SECTION 3 OF C. 754, 50
STAT. 751, IS THE SECTION THAT PROVIDES FOR A SPECIAL DISTRICT COURT
WHERE AN INJUNCTION IS SOUGHT TO RESTRAIN THE ENFORCEMENT, OPERATION OR
EXECUTION OF, OR TO SET ASIDE, ANY ACT OF CONGRESS ON THE GROUND THAT
IT IS REPUGNANT TO THE CONSTITUTION OF THE UNITED STATES.  IN THIS
PRESENT PROCEEDING WE ARE NOT DEALING WITH AN ACT OF CONGRESS BUT WITH
AN ACT OF THE TERRITORIAL LEGISLATURE OF THE HAWAIIAN ISLANDS.  FN23
HEALY V. RATTA, 289 U.S. 701; 292 U.S. 263, 264; 67 F.2D 554, 556;
WILENTZ V. SOVEREIGN CAMP, 306 U.S. 573, 582; COMMISSION V. BRASHEAR
LINES, 312 U.S. 621, 626. 

FN24  28 U.S.C. SEC. 225(A), NOW 28 U.S.C. SEC. 1291.  SEE GULLY V.
INTERSTATE NAT. GAS CO., 292 U.S. 16, 19; OKLAHOMA GAS CO. V. PACKING
CO., 292 U.S. 386, 392; RORICK V. COMMISSIONERS, 307 U.S. 208, 213. 
CF. JAMESON & CO. V. MORGENTHAU, 307 U.S. 171, 174; GARMENT WORKERS V.
DONNELLY CO., 304 U.S. 243, 251-252. 

FN25  AS INDICATED ABOVE, NOTE 6, RESPONDENTS ALSO RELIED UPON A
DENIAL OF EQUAL RIGHTS UNDER 8 U.S.C. SECS. 41, 42 AND 43.  NO MORE
DEFINITE ALLEGATION APPEARS.  THE HEARING DEVELOPED NOTHING TO INDICATE
ANY PURPOSE OR ACTION OF DISCRIMINATION AGAINST ANY RACE OR GROUP IN
THE LAW OR ITS ADMINISTRATION.  THE ACT COVERED ALL FOREIGN LANGUAGES. 
WE, THEREFORE, CONFINE OURSELVES TO THE DUE PROCESS ISSUE.  SEE SNOWDEN
V. HUGHES, 321 U.S. 1. 

FN26  NOTWITHSTANDING THE FUSION OF LAW AND EQUITY BY THE RULES OF
CIVIL PROCEDURE, THE SUBSTANTIVE PRINCIPLES OF COURTS OF CHANCERY
REMAIN UNAFFECTED.  RULES 1 AND 2; 48 STAT. 1064, SECS. 1 AND 2; (NOTE
48 U.S.C., 1946 ED., SEC. 646; REPEALED BY ACT OF JUNE 25, 1948, 62
STAT. 992; CF. 28 U.S.C. SEC. 451) ABBE V. NEW YORK, N.H. & H.R. CO.,
171 F.2D 387, 388; BERESLAVSKY V. CAFFEY, 161 F.2D 499; BERESLAVSKY V.
KLOEB, 162 F.2D 862; BYRAM V. VAUGHN, 68 F.SUPP.  981, 984.  COMPARE
SIBBACH V. WILSON & CO., 312 U.S. 1, 9-10.  SEE HILLSBOROUGH V.
CROMWELL, 326 U.S. 620, 622. 

ATLAS INS. CO. V. SOUTHERN, INC., 306 U.S. 563, 568: 

"SECTION 11 OF THE JUDICIARY ACT OF 1789, 1 STAT. 78, PROVIDED THAT
THE CIRCUIT COURTS SHOULD HAVE 'COGNIZANCE  ...  OF ALL SUITS OF A
CIVIL NATURE AT COMMON LAW OR IN EQUITY' IN CASES APPROPRIATELY BROUGHT
IN THOSE COURTS.  THIS PROVISION IS PERPETUATED IN SEC. 24(1) OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 41(1), (NOW SECS. 1331 ET SEQ.) WHICH
DECLARES THAT THE DISTRICT COURTS SHALL HAVE JURISDICTION OF SUCH
SUITS.  THE 'JURISDICTION' THUS CONFERRED ON THE FEDERAL COURTS TO
ENTERTAIN SUITS IN EQUITY IS AN AUTHORITY TO ADMINISTER IN EQUITY SUITS
THE PRINCIPLES OF THE SYSTEM OF JUDICIAL REMEDIES WHICH HAD BEEN
DEVISED AND WAS BEING ADMINISTERED BY THE ENGLISH COURT OF CHANCERY AT
THE TIME OF THE SEPARATION OF THE TWO COUNTRIES.  ...  THIS CLAUSE OF
THE STATUTE DOES NOT DEFINE THE JURISDICTION OF THE DISTRICT COURTS AS
FEDERAL COURTS, IN THE SENSE OF THEIR POWER OR AUTHORITY TO HEAR AND
DECIDE, BUT PRESCRIBES THE BODY OF DOCTRINE WHICH IS TO GUIDE THEIR
DECISIONS AND ENABLE THEM TO DETERMINE WHETHER IN ANY GIVEN INSTANCE A
SUIT OF WHICH A DISTRICT COURT HAS JURISDICTION AS A FEDERAL COURT IS
AN APPROPRIATE ONE FOR THE EXERCISE OF THE EXTRAORDINARY POWERS OF A
COURT OF EQUITY.  ...  " 

FN27  CF. MATTHEWS V. RODGERS, 284 U.S. 521, 525; MOORE'S FEDERAL
PRACTICE, VOL. 1, PP. 108, 208; GRAUMAN V. CITY COMPANY OF NEW YORK, 31
F.SUPP.  172; H.R. REP. NO. 308, 80TH CONG., 1ST SESS., P. A 236 ON 28
U.S.C. SEC. 384. 

FN28  SEE SPIELMAN MOTOR CO. V. DODGE, 295 U.S. 89, 95. 

FN29  WAIALUA CO. V. CHRISTIAN, 305 U.S. 91, 108; BEAL V. MISSOURI
PACIFIC R. CORP., 312 U.S. 45; WATSON V. BUCK, 313 U.S. 387; DOUGLAS V.
JEANNETTE, 319 U.S. 157; BURFORD V. SUN OIL CO., 319 U.S. 315, 333, N.
29; MEREDITH V. WINTER HAVEN, 320 U.S. 228, 235.  COMPARE SPECTOR MOTOR
CO. V. MCLAUGHLIN, 323 U.S. 101. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE RUTLEDGE JOINS,
CONCURRING IN PART AND DISSENTING IN PART. 

AS TO NO. 52, I JOIN THE COURT'S OPINION. 

AS TO NO. 474, I WOULD LEAVE THE APPEAL NOW PENDING IN THE COURT OF
APPEALS FOR THE NINTH CIRCUIT TO ITS ADJUDICATION THERE AND NOT GRANT
THE PETITION FOR CERTIORARI.  THE POWER WHICH CONGRESS HAS GIVEN TO
THIS COURT TO SHORT-CIRCUIT THE COURTS OF APPEALS SHOULD NOT BE
EXERCISED EXCEPT FOR SOME COMPELLING REASON OF WISE JUDICIAL
ADMINISTRATION.  NO REASON IS HERE PRESENT THAT WOULD NOT BE EQUALLY
AVAILABLE IN ALMOST EVERY CASE WHICH, EVEN THOUGH A CONSTITUTIONAL
ISSUE MAY BE INVOLVED, CANNOT COME HERE DIRECTLY, BUT MUST FIRST GO TO
A COURT OF APPEALS.  CONGRESS DECIDED NOT TO PROVIDE FOR SUCH DIRECT
APPEALS HERE AND WE SHOULD NOT EXERCISE OUR DISCRETIONARY POWER TO
GRANT WHAT CONGRESS HAS WITHHELD.  THIS DISCRETIONARY POWER SHOULD COME
INTO PLAY ONLY FOR THOSE EXCEPTIONAL CIRCUMSTANCES FOR WHICH CONGRESS
DESIGNED IT. 

AFTER FINDING THAT WE ARE WITHOUT JURISDICTION TO REVIEW DIRECTLY THE
DECREE OF THE DISTRICT COURT OF HAWAII, THE COURT IN EFFECT ALLOWS SUCH
DIRECT REVIEW BY NOT REQUIRING THE APPEAL NOW PENDING IN THE COURT OF
APPEALS TO RUN ITS NORMAL COURSE OF ADJUDICATION IN THAT COURT.  THIS
IS JUSTIFIED ON THE GROUND THAT THE CASE HAS BEEN FULLY PRESENTED IN
THE DISTRICT COURT AND HERE.  BUT IF WE WOULD NOT HAVE BROUGHT HERE AN
APPEAL UNDECIDED IN THE COURT OF APPEALS MERELY BECAUSE IT HAD BEEN
ADJUDICATED ON ITS MERITS IN THE DISTRICT COURT, THERE IS NO MORE
REASON FOR DOING SO WHEN A DIRECT APPEAL FROM THE DISTRICT COURT HAS
BEEN IMPROVIDENTLY SOUGHT HERE.  MOREOVER, THE COURT IS NOT DISPOSING
OF THE CASE ON ITS MERITS.  BY LIFTING THE CASE OUT OF THE COURT OF
APPEALS THE COURT IS ASSUMING THE BURDEN OF CANVASSING ISSUES NOT DEALT
WITH BELOW.  THIS ENTAILS THE STUDY OF NEW QUESTIONS AND THE TASK OF
OPINION WRITING.  THESE ARE PRECISELY THE BURDENS FROM WHICH THE COURT
ASKED TO BE SAVED AND FROM WHICH CONGRESS SAVED THE COURT BY THE
JUDICIARY ACT OF 1925.  IF THE REGULAR COURSE OF PROCEEDING WERE
FOLLOWED AND THE MATTER WERE TO BE DISPOSED OF BY THE COURT OF APPEALS,
AS IT IS NOW BEING DISPOSED OF HERE, THE NECESSITY FOR FUTURE
CONSIDERATION HERE MIGHT NEVER ARISE BEYOND THAT INVOLVED IN FINDING NO
REASON FOR GRANTING A PETITION FOR CERTIORARI WERE ONE TO BE APPLIED
FOR.  DRAINS ON THE COURT'S TIME THROUGH JURISDICTIONAL MISCONCEPTIONS
SHOULD BE STRONGLY DISCOURAGED.  WE SHOULD FOLLOW THE HONORED PRACTICE
OF THIS COURT IN DISMISSING A PROCEEDING THAT SHOULD NOT BE HERE AB
INITIO, EVEN THOUGH THE COURT'S TIME AND EFFORT HAD BEEN EXPENDED AFTER
FULL ARGUMENT IN CONCLUDING THAT A CASE SHOULD NEVER HAVE BEEN BROUGHT
HERE.  FN1 

IF THE ATTEMPT HAD BEEN MADE TO BRING NO. 474 HERE PREMATURELY IT
WOULD SURELY HAVE FAILED.  IT SHOULD NOT SUCCEED BECAUSE NO. 52 WAS
IMPROPERLY BROUGHT HERE.  ACCORDINGLY I AGREE WITH THE COURT IN
DISMISSING NO. 52 FOR WANT OF JURISDICTION, AND IN NO. 474 I WOULD DENY
THE PETITION FOR CERTIORARI. 

FN1  WRITS OF CERTIORARI GRANTED BECAUSE OF AN APPARENT CONFLICT
BETWEEN COURTS OF APPEALS HAVE BEEN DISMISSED BECAUSE THE EXISTENCE OF
SUCH CONFLICT DID NOT SURVIVE ARGUMENT.  AND FOR THESE REASONS.  "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."  LAYNE & BOWLER CORP. V. WESTERN
WELL WORKS, INC., 261 U.S. 387, 393. 
..END :




BLACK DIAMOND V. STEWART & SONS, 336 U.S. 386 


ARGUED JANUARY 3-4, 1949.  - DECIDED MARCH 14, 1949.  - 167 F.2D 308,
REVERSED. 


A VESSEL OWNED BY THE UNITED STATES AND CHARTERED UNDER A BAREBOAT
CHARTER TO AN AMERICAN CORPORATION COLLIDED WITH A BRITISH VESSEL IN
TERRITORIAL WATERS OF BELGIUM.  THE BRITISH VESSEL SANK WITH ALL OF HER
CARGO; HER CHIEF STEWARD WAS KILLED; AND THE AMERICAN VESSEL DAMAGED
THE BANK OF THE RIVER.  OWNERS OF THE BRITISH VESSEL SUED THE CHARTERER
OF THE AMERICAN VESSEL IN ENGLAND, CLAIMING DAMAGES OF $1,000,000. 
OWNERS OF THE CARGO OF THE BRITISH VESSEL SUED THE UNITED STATES AND
THE CHARTERER OF THE AMERICAN VESSEL IN A FEDERAL DISTRICT COURT FOR
CLAIMS AGGREGATING NEARLY $1,000,000.  ALLEGING THAT THE VALUE OF THE
AMERICAN VESSEL WAS ABOUT $1,000,000, THAT THE TOTAL CLAIMS WOULD
EXCEED THAT AMOUNT, AND THAT THEIR LIABILITY UNDER BELGIAN LAW WAS
LIMITED TO $325,000, THE UNITED STATES AND THE CHARTERER PETITIONED THE
DISTRICT COURT FOR LIMITATION OF LIABILITY UNDER R.S. SEC. 4285, AS
AMENDED, 46 U.S.C. SEC. 185.  THE UNITED STATES POSTED NO BOND AND THE
CHARTERER POSTED A BOND OF ONLY $325,000.  THE DISTRICT COURT DISMISSED
THE PETITION AND THE COURT OF APPEALS AFFIRMED.  HELD:  THE DISTRICT
COURT SHOULD NOT HAVE DISMISSED THE PETITION BUT SHOULD HAVE REQUIRED
THE CHARTERER (BUT NOT THE UNITED STATES) TO POST A BOND OF $1,000,000,
TO GUARD AGAINST THE POSSIBILITY THAT AMERICAN LAW, AND NOT BELGIAN
LAW, MIGHT BE FOUND TO CONTROL THE AMOUNT OF LIABILITY.  PP. 388-399. 

1.  R.S. SEC. 4285 IS APPLICABLE, BECAUSE THE TOTAL AMOUNT OF
POTENTIAL CLAIMS EXCEEDS THE FUND AVAILABLE FOR THEIR SATISFACTION,
WHETHER THAT FUND BE MEASURED BY THE LAW OF BELGIUM OR OF THE UNITED
STATES.  PP. 393-394. 

2.  UNDER 28 U.S.C. SEC. 2408 AND 46 U.S.C. SEC. 743, THE UNITED
STATES IS NOT REQUIRED TO POST A BOND IN A PROCEEDING UNDER R.S. SEC.
4285.  P. 394. 

3.  IN VIEW OF THE SIX-MONTH LIMITATION ON PROCEEDINGS UNDER R.S.
SEC. 4285, THE COURT OF APPEALS, INSTEAD OF AFFIRMING THE DISMISSAL,
SHOULD HAVE REMANDED THE CASE TO THE DISTRICT COURT IN ORDER TO GIVE
THE CHARTERER AN OPPORTUNITY TO FILE A LARGER BOND, SINCE THE DEFECT
WAS NOT JURISDICTIONAL.  P. 395. 

4.  IF THE BELGIAN LAW IS NOT MERELY PROCEDURAL BUT ATTACHES TO THE
RIGHT OF RECOVERY AND IF IT DOES NOT CONFLICT WITH ANY OVERRIDING
DOMESTIC POLICY, IT IS APPLICABLE IN THIS CASE.  PP. 395-396. 

5.  THE BELGIAN LAW HAVING BEEN PLEADED, IT MUST BE PROVED AS A FACT
EVEN THOUGH IT IS DERIVED FROM THE BRUSSELS CONVENTION OF AUGUST 25,
1924, LIMITING THE LIABILITY OF OWNERS OF SEAGOING VESSELS.  PP. 396
397. 

6.  UPON REMAND, THE QUESTION OF WHAT LAW GOVERNS THE SUBSTANTIVE
LIMIT OF LIABILITY SHOULD BE DETERMINED IN ADVANCE OF THE PROOF OF
INDIVIDUAL CLAIMS.  PP. 397-398. 

7.  IF BELGIAN LAW IS FOUND TO CONTROL, A $325,000 BOND WOULD
SUFFICE; BUT, IF AMERICAN LAW IS FOUND TO CONTROL, A $1,000,000 BOND
WOULD BE REQUIRED.  P. 398. 

8.  THE DISTRICT COURT, IN THE EXERCISE OF ITS POWER TO PRESERVE THE
STATUS QUO PENDING APPEAL, SHOULD REQUIRE THE CHARTERER TO POST A BOND
FOR THE VALUE OF THE SHIP AND FREIGHT.  PP. 398-399. 

BLACK DIAMOND STEAMSHIP CORP. V. ROBERT STEWART & SONS, LTD. ET AL. 

NO. 121.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT* . 

*TOGETHER WITH NO. 130, UNITED STATES V. ROBERT STEWART & SONS, LTD.
ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

A FEDERAL DISTRICT COURT DISMISSED A PETITION OF THE UNITED STATES
AND THE CHARTERER OF ONE OF ITS VESSELS FOR LIMITATION OF LIABILITY
UNDER R.S. SEC. 4285, AS AMENDED, 46 U.S.C. SEC. 185.  THE COURT OF
APPEALS AFFIRMED.  167 F.2D 308.  THIS COURT GRANTED CERTIORARI.  335
U.S. 809.  REVERSED AND REMANDED, P. 399. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THESE CASES HERE BECAUSE THEY CALL FOR DETERMINATION OF
IMPORTANT ISSUES IN THE ADMINISTRATION OF ADMIRALTY LAW.  335 U.S.
809.  THEY BRING FOR REVIEW A DECREE OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT AFFIRMING THE DISMISSAL OF A PETITION FOR LIMITED
LIABILITY BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF NEW YORK BY THE UNITED STATES AS OWNER AND THE BLACK
DIAMOND STEAMSHIP CORPORATION AS BAREBOAT CHARTERER OF THE S.S. NORWALK
VICTORY.  167 F.2D 308. 

THE FACTS CONTROLLING OUR DECISION ARE BRIEFLY THESE.  ON APRIL 28,
1947, THE NORWALK VICTORY, WHILE PROCEEDING DOWN THE SCHELDE RIVER IN
THE TERRITORIAL WATERS OF BELGIUM, COLLIDED WITH THE BRITISH STEAMER
MERGANSER.  THE MERGANSER SANK WITH ALL HER CARGO; HER CHIEF STEWARD
WAS KILLED; IN BACKING AWAY FROM THE MERGANSER THE NORWALK VICTORY
STRUCK AND DAMAGED THE BANK OF THE SCHELDE.  SOON AFTER THE COLLISION
THE OWNERS OF THE MERGANSER BROUGHT SUIT AGAINST BLACK DIAMOND IN THE
HIGH COURT OF JUSTICE OF ENGLAND CLAIMING DAMAGES IN THE AMOUNT OF
$1,000,000.  THAT IS THE ONLY PROCEEDING WHICH HAS BEEN BROUGHT
ABROAD.  ON OCTOBER 14, 1947, THE OWNERS OF THE CARGO LOST IN THE
SINKING OF THE MERGANSER BROUGHT SUIT IN THE EASTERN DISTRICT OF NEW
YORK; AGGREGATE CLAIMS THUS FAR FILED TOTAL NEARLY $1,000,000. 

IN THEIR PETITION FOR LIMITATION OF LIABILITY, BROUGHT UNDER R.S.
SEC. 4285, AS AMENDED, 49 STAT. 1480, 46 U.S.C. SEC. 185,  FN1  THE
UNITED STATES AND BLACK DIAMOND ALLEGE THE POSSIBILITY THAT IN ADDITION
TO THE SUIT IN THE HIGH COURT OF JUSTICE AND THE SUITS BY THE CARGO
OWNERS IN NEW YORK, THERE MAY BE SUITS IN THE COURTS OF THE UNITED
STATES BY OTHER CARGO OWNERS, BY THE PERSONAL REPRESENTATIVE OF THE
MERGANSER'S CHIEF STEWARD, AND BY THE BELGIAN GOVERNMENT FOR DAMAGES TO
THE BANK OF THE SCHELDE AND FOR THE COST OF REMOVING THE WRECK OF THE
MERGANSER FROM THE RIVER.  THESE CLAIMS, THEY SAY, WOULD EXCEED THE
VALUE OF THE NORWALK VICTORY, WHICH IS ABOUT $1,000,000.  BUT THE
PETITIONERS, DESPITE THE PROVISIONS OF R.S. SEC. 4283, AS AMENDED, 49
STAT. 1479, 46 U.S.C. SEC. 183, FN2  DO NOT RECOGNIZE THE VALUE OF
THEIR SHIP AS THE LIMIT OF THEIR LIABILITY.  THEY INSIST, RATHER, THAT
THEIR LIABILITY IS LIMITED BY THE INTERNATIONAL CONVENTION FOR THE
UNIFICATION OF CERTAIN RULES RELATING TO THE LIMITATION OF THE
LIABILITY OF OWNERS OF SEAGOING VESSELS, SIGNED AT BRUSSELS ON AUGUST
25, 1924.  FN3  THE CONVENTION WAS RATIFIED BY BELGIUM ON JUNE 2, 1930,
AND TOOK EFFECT ON JUNE 2, 1931; IT IS ALLEGED, THEREFORE, TO HAVE BEEN
PART OF THE TERRITORIAL LAW OF BELGIUM AT THE TIME OF THIS COLLISION IN
BELGIAN WATERS.  ON THE BASIS OF THIS CONVENTION, THE PETITIONERS
ASSERT THEIR MAXIMUM LIABILITY TO BE $325,028.79. 

ACCORDINGLY, BLACK DIAMOND ACCOMPANIED ITS PETITION FOR LIMITATION OF
LIABILITY WITH A BOND IN THE AMOUNT OF $325,028.79.  THE UNITED STATES,
STANDING UPON 28 U.S.C. SEC. 2408 FN4  AND SEC. 3 OF THE SUITS IN
ADMIRALTY ACT, 41 STAT. 526, AS AMENDED, 46 U.S.C. SEC. 743,  FN5
FILED NO BOND.  THE DISTRICT COURT, HOLDING THAT THE PRIVILEGE OF
LIMITING LIABILITY RELATES "NOT TO THE SUBSTANTIVE RIGHTS GIVING RISE
TO THE LIABILITY, BUT TO THE REMEDY, AND THAT IS GOVERNED BY THE LAW OF
THE FORUM," DISMISSED THE PETITION ON THE GROUND THAT BLACK DIAMOND HAD
NOT COMPLIED WITH R.S. SEC. 4285 BY FILING A BOND IN THE AMOUNT OF THE
VALUE OF THE SHIP - $1,000,000.  THE STANDING OF THE UNITED STATES
(WHICH WAS NOT SEPARATELY REPRESENTED AT THAT STAGE OF THE PROCEEDING)
WAS NOT CONSIDERED. 

UPON APPEAL, THE PETITIONERS WERE FOUND TO BE IN "A DILEMMA FROM
WHICH THEY CANNOT ESCAPE."  167 F.2D AT 309.  READING THE PETITION AS
ALLEGING THAT THE BELGIAN LIMITATION ATTACHED TO THE CLAIMANTS'
SUBSTANTIVE RIGHT TO RECOVER, AND TREATING THAT ALLEGATION AS PROVED
FOR PURPOSES OF DETERMINING THE SUFFICIENCY OF THE PETITION, THE COURT
ACCEPTED ARGUENDO THE SUM OF $325,000 AS "THE LIMIT OF ALL THEIR
(PETITIONERS') LIABILITIES."  IBID.  BUT THOUGH THE COURT OF APPEALS
LOOKED TO THE LEX LOCI DELICTI FOR THE SUBSTANTIVE LIMIT OF LIABILITY,
ITS NEXT STEP WAS TAKEN ON THE ASSUMPTION THAT THE CONDITIONS UNDER
WHICH A PETITION PRAYING FOR THE INJUNCTION OF OTHER PROCEEDINGS AND A
FORUM CONCURSUS MAY BE FILED ARE MATTERS OF PROCEDURE GOVERNED BY THE
LEX FORI.  IT IS A CONDITION IMPOSED BY THE LEX FORI, THE COURT'S
REASONING CONTINUED, THAT A PETITION FOR LIMITATION OF LIABILITY IS NOT
AVAILABLE TO A SHIPOWNER UNLESS THE AGGREGATE OF KNOWN AND PROBABLE
CLAIMS AGAINST HIM IS GREATER THAN THE VALUE OF HIS SHIP.  AS
ESTABLISHING THIS PROPOSITION, THE COURT CITED THE AQUITANIA, 20 F.2D
457(C.A.2D CIR.); CURTIS BAY TOWING CO. V. TUG KEVIN MORAN, 159 F.2D
273(C.A.2D CIR.); AND THE GEORGE W. FIELDS, 237 F. 403(S.D.N.Y.).  AND
IT HELD THESE CASES APPLICABLE ON THE GROUND THAT THE MAXIMUM LIABILITY
IMPOSED BY BELGIAN LAW WAS LESS THAN THE VALUE OF THE NORWALK VICTORY. 

BUT THE LOWER COURT FOUND IT UNNECESSARY TO PASS FINALLY ON THE
QUESTION WHETHER THE BELGIAN LIMITATION WAS IN FACT CONTROLLING
BECAUSE, IF IT WERE NOT, PETITIONERS WOULD BE IMPALED ON THE OTHER HORN
OF THE DILEMMA:  IF THE SUBSTANTIVE LAW OF THE FORUM RATHER THAN THAT
OF BELGIUM APPLIED, THE LIMIT OF LIABILITY, BY R.S. SEC. 4283, WOULD BE
THE VALUE OF THE VESSEL.  SINCE THE PROCEDURAL LAW OF THE FORUM,
MOREOVER, REQUIRES THE POSTING OF A BOND IN THE AMOUNT OF POTENTIAL
LIABILITY, AND SINCE THE BOND PROPOSED BY PETITIONERS WAS FOR LESS THAN
A THIRD OF THAT AMOUNT, UPON THIS HYPOTHESIS ALSO THEY WERE DISENTITLED
TO PROCEED.  THE COURT OF APPEALS ACCORDINGLY AFFIRMED THE DISMISSAL OF
THE PETITION. 

IF THE COURT OF APPEALS' RELIANCE UPON THE AQUITANIA, CURTIS BAY
TOWING CO. V. TUG KEVIN MORAN, AND THE GEORGE W. FIELDS, SUPRA, WAS, AS
WE ARE CONVINCED, UNDER THE CIRCUMSTANCES MISPLACED, WE ESCAPE ITS
DILEMMA WITHOUT WANTING IN RESPECT FOR THE WISDOM OF THAT MOST
EXPERIENCED OF ADMIRALTY COURTS.  THOSE CASES, IT IS TRUE, HOLD THAT
WHERE THE AGGREGATE CLAIMS AGAINST A SHIPOWNER CAN BY NO POSSIBILITY
EXCEED THE VALUE OF HIS SHIP, A PROCEEDING UNDER R.S. SEC. 4285 WILL
NOT LIE.  BUT THE VALUE OF THE SHIP WAS RELEVANT IN THOSE CASES ONLY
BECAUSE UNDER THE LAW OF THE UNITED STATES, WHICH WAS ASSUMED TO BE
APPLICABLE, THAT WAS THE LIMIT OF THE OWNER'S LIABILITY.  SINCE THE
TOTAL AMOUNT OF ALL POTENTIAL CLAIMS IN EACH CASE WAS ONLY A FRACTION
OF THAT LIMIT, THE FUND AVAILABLE FOR THEIR SATISFACTION WAS MORE THAN
AMPLE.  THERE WAS NO REASON, THEREFORE, FOR PERMITTING THE PETITIONERS
TO INVOKE A FORUM CONCURSUS.  BUT WHERE, AS HERE, THE TOTAL AMOUNT OF
POTENTIAL CLAIMS EXCEEDS THE FUND AVAILABLE FOR THEIR SATISFACTION,
WHETHER THAT FUND BE MEASURED BY THE LAW OF BELGIUM OR OF THE UNITED
STATES, THERE EXISTS JUST SUCH A SITUATION AS R.S. SEC. 4285 WAS
DESIGNED TO MEET. 

"UNLESS SOME PROCEEDING OF THIS KIND WERE ADOPTED WHICH SHOULD BRING
ALL THE PARTIES INTERESTED INTO ONE LITIGATION, AND ALL THE CLAIMANTS
INTO CONCOURSE FOR A PRO RATA DISTRIBUTION OF THE COMMON FUND, IT IS
MANIFEST THAT IN MOST CASES THE BENEFITS OF THE ACT COULD NEVER BE
REALIZED.  CASES MIGHT OCCUR, IT IS TRUE, IN WHICH THE SHIP OWNERS
COULD AVAIL THEMSELVES OF THOSE BENEFITS, BY WAY OF DEFENCE ALONE, AS
WHERE BOTH SHIP AND FREIGHT ARE TOTALLY LOST, SO THAT THE OWNERS ARE
RELIEVED FROM ALL LIABILITY WHATEVER.  BUT EVEN IN THAT CASE, IN THE
ABSENCE OF A REMEDY BY WHICH THEY COULD OBTAIN A DECREE OF EXEMPTION AS
TO ALL CLAIMANTS, THEY WOULD BE LIABLE TO A DIVERSITY OF SUITS, BROUGHT
PERHAPS IN DIFFERENT STATES, AFTER LONG PERIODS OF TIME, WHEN THE
WITNESSES HAVE BEEN DISPERSED, AND ISSUING IN CONTRARY RESULTS BEFORE
DIFFERENT TRIBUNALS; WHILST IN THE ORDINARY CASES, WHERE A LIMITED
LIABILITY TO SOME EXTENT EXISTS, BUT TO AN AMOUNT LESS THAN THE
AGGREGATE CLAIMS FOR DAMAGES, SO AS TO REQUIRE A CONCOURSE OF CLAIMANTS
AND A PRO RATA DISTRIBUTION, THE PROSECUTION OF SEPARATE SUITS, IF
ALLOWED TO PROCEED, WOULD RESULT IN A SUBVERSION OF THE WHOLE OBJECT
AND SCHEME OF THE STATUTE."  PROVIDENCE & N.Y.S.S. CO. V. HILL MFG.
CO., 109 U.S. 578, 594-95. 

INDEED, IF THE TOTAL AMOUNT RECOVERABLE IS FIXED BY BELGIAN LAW, THE
NEED FOR THE ISSUANCE OF A MONITION UNDER ADMIRALTY RULE 51, THE
INJUNCTION OF OTHER SUITS, AND A FORUM CONCURSUS IS OBVIOUSLY GREATER
THAN IT IS UNDER THE HIGHER SUBSTANTIVE LIMITATION OF OUR OWN LAW. 
THUS ONE OF THE HORNS OF PETITIONERS' DILEMMA DISAPPEARS; WE MUST,
ACCORDINGLY, REVERSE THE JUDGMENT BELOW AND REMAND THE CASES FOR
FURTHER PROCEEDINGS. 

SINCE THE CASES ARE GOING BACK, IT IS NECESSARY TO CONFRONT THE OTHER
HORN OF THE DILEMMA.  IN THAT BRANCH OF ITS REASONING, THE COURT OF
APPEALS ASSUMED THAT THE POSTING OF TOO SMALL A BOND WOULD REQUIRE THE
DISMISSAL OF THE PETITION.  THE COURT'S ATTENTION APPARENTLY WAS NOT
DIRECTED TO THE STATUS OF THE GOVERNMENT, WHICH, BY THE PLAIN IMPORT OF
28 U.S.C. SEC. 2408  FN6  AND 41 STAT. 525, AS AMENDED, 46 U.S.C. SEC.
743,  FN7  RELIEVES IT OF THE DUTY TO POST A BOND IN ORDER TO BE
ENTITLED TO PROCEED UNDER R.S. SEC. 4285.  AND PERHAPS IT IS WELL TO
ADD, IN PASSING, THAT, IN VIEW OF THE SIX-MONTH LIMITATION  FN8  ON
PROCEEDING UNDER THAT STATUTE, REMAND TO THE DISTRICT COURT IN ORDER TO
GIVE BLACK DIAMOND AN OPPORTUNITY TO FILE A LARGER BOND WOULD HAVE BEEN
A BETTER COURSE, SINCE THE DEFECT WAS NOT JURISDICTIONAL, THAN
AFFIRMANCE OF DISMISSAL OF THE PETITION.  SEE LANGNES V. GREEN, 282
U.S. 531, 541-42; CURTIS BAY TOWING CO. V. TUG KEVIN MORAN, 159 F.2D
273, 276; CF. BIGLER V. WALLER, 12 WALL.  142, 149; DAVIS V. WAKELEE,
156 U.S. 680.  WE ADD THIS OBSERVATION BECAUSE, UNDER THE
CIRCUMSTANCES, AFFIRMANCE COULD ONLY HAVE HAD THE EFFECT OF DEPRIVING
THE PETITIONERS ALTOGETHER OF THE PRIVILEGE OF A LIMITATION PROCEEDING,
NO MATTER WHAT THE AMOUNT OF THE BOND THEY WERE WILLING TO POST.  IT
THREW THEM BACK UPON THE DUBIOUS ADVANTAGE OF LIMITATION OF LIABILITY
AS A PARTIAL DEFENSE TO SUCCESSIVE SUITS IN ADMIRALTY IN WHICH THE
RECOVERIES, THOUGH SEPARATELY LESS THAN THE APPLICABLE LIMIT, MIGHT IN
THE AGGREGATE FAR EXCEED IT.  AND SUCH WOULD BE THE EFFECT WERE WE ALSO
TO AFFIRM THE JUDGMENT. 

HAVING DECIDED THAT THE CASE MUST BE REMANDED BECAUSE THE PETITION
WAS IMPROPERLY DISMISSED, WE TURN TO THE QUESTION WHETHER THERE ARE ANY
CIRCUMSTANCES UNDER WHICH THE BELGIAN LIMITATION WOULD BE ENFORCEABLE
BY OUR COURTS.  ON THIS POINT WE AGREE WITH THE COURT OF APPEALS - AND
DISAGREE WITH THE DISTRICT COURT - THAT IF, INDEED, THE BELGIAN
LIMITATION ATTACHES TO THE RIGHT, THEN NOTHING IN THE TITANIC, 233 U.S.
718, STANDS IN THE WAY OF OBSERVING THAT LIMITATION.  THE COURT IN THAT
CASE WAS DEALING WITH "A LIABILITY ASSUMED ALREADY TO EXIST ON OTHER
GROUNDS."  ID. AT 733.  BUT IF IT IS THE LAW OF BELGIUM THAT THE WRONG
CREATES NO GREATER LIABILITY THAN THAT RECOGNIZED BY THE CONVENTION OF
1924, WE CANNOT, WITHOUT MORE, REGARD OUR OWN STATUTES AS EXPANDING THE
RIGHT TO RECOVER.  ANY OTHER CONCLUSION WOULD DISREGARD THE SETTLED
PRINCIPLE THAT, IN THE ABSENCE OF SOME OVERRIDING DOMESTIC POLICY
TRANSLATED INTO LAW, THE RIGHT TO RECOVER FOR A TORT DEPENDS UPON AND
IS MEASURED BY THE LAW OF THE PLACE WHERE THE TORT OCCURRED.  SMITH V.
CONDRY, 1 HOW.  28, 33; SLATER V. MEXICAN NATIONAL R. CO., 194 U.S.
120; CUBA R. CO. V. CROSBY, 222 U.S. 473; WESTERN UNION TELEGRAPH CO.
V. BROWN, 234 U.S. 542. 

IF, ON THE OTHER HAND, THE CONVENTION MERELY PROVIDES PROCEDURAL
MACHINERY BY WHICH CLAIMS OTHERWISE CREATED ARE BROUGHT INTO CONCOURSE
AND SCALED DOWN TO THEIR PROPORTIONATE SHARE OF A LIMITED FUND, WE
WOULD RESPECT THE EQUALLY WELL SETTLED PRINCIPLE THAT THE FORUM IS NOT
GOVERNED BY FOREIGN RULES OF PROCEDURE.  SEE PRITCHARD V. NORTON, 106
U.S. 124; DAVIS V. MILLS, 194 U.S. 451.  WE LEAVE OPEN THE CHOICE
BETWEEN THESE OPPOSING HYPOTHESES.  NOR DO WE MEAN TO IMPLY THAT THESE
APPARENTLY CLEAR-CUT ALTERNATIVES ARE EXHAUSTIVE.  A LIMIT WHICH
ATTACHES NOT TO AN INDIVIDUAL'S RIGHT OF RECOVERY BUT TO THE AGGREGATE
CLAIMS ARISING FROM A GIVEN TORT CAN BE SAID TO BE "ATTACHED TO THE
RIGHT" ONLY IN A SPECIAL SENSE OF THAT PHRASE, AND A RULE WHICH
OPERATES TO CUT DOWN THE AMOUNT RECOVERABLE BY A CLAIMANT CANNOT BE
FITTED WITHIN ANY BUT A VERY BROAD DEFINITION OF THE TERM "PROCEDURE." 
WHETHER THEY ARE IN FACT CONSIDERATIONS OF DOMESTIC POLICY WHICH
DESERVE TO BE MEASURED AGAINST APPLICATION OF THE LEX LOCI DELICTI AND
WHETHER SUCH CONSIDERATIONS ARE AS SIGNIFICANT WHERE THE FOREIGN
LIMITATION IS LOWER THAN OUR OWN AS WHERE IT IS HIGHER - THESE TOO ARE
QUESTIONS NOT NOW BEFORE US IN VIEW OF THE FACT THAT THE CASE IS HERE
MERELY ON EXCEPTIONS TO THE PETITION FOR LIMITATION OF LIABILITY. 
SINCE BELGIAN LAW MAY BE ENFORCEABLE BY OUR COURTS, THAT LAW, HAVING
BEEN PLEADED, MUST BE ESTABLISHED.  IT IS TRUE THAT THIS COURT HAS ON
SEVERAL OCCASIONS HELD INTERNATIONAL RULES WHICH HAD PASSED INTO THE
"GENERAL MARITIME LAW" TO BE SUBJECT TO JUDICIAL NOTICE.  THE SCOTIA,
14 WALL.  170; THE BELGENLAND, 114 U.S. 355, 370; RICHELIEU & ONTARIO
NAV. CO. V. BOSTON MARINE INS. CO., 136 U.S. 408, 422; THE NEW YORK,
175 U.S. 187.  BUT WHERE LESS WIDELY RECOGNIZED RULES OF FOREIGN
MARITIME LAW HAVE BEEN INVOLVED, THE COURT HAS ADHERED TO THE GENERAL
PRINCIPLE THAT FOREIGN LAW IS TO BE PROVED AS A FACT.  LIVERPOOL STEAM
CO. V. PHENIX INS. CO., 129 U.S. 397; SEE TALBOT V. SEEMAN, 1 CRANCH 1,
38; THE SCOTIA, 14 WALL.  170, 188.  SEE ALSO THE DECISIONS OF THE
LOWER FEDERAL COURTS CITED IN 3 BENEDICT ON ADMIRALTY 11, N. 36(6TH
ED., KNAUTH, 1940).  ALTHOUGH WE WOULD NO DOUBT BE FREE TO NOTICE THE
TERMS OF THE LIMITATION CONVENTION ITSELF EVEN THOUGH THEY WERE NOT SET
FORTH AMONG THE ALLEGATIONS OF THE PETITION, THEIR LEGAL SIGNIFICANCE
DOES NOT APPEAR ON THE SURFACE.  "MANY DOUBTS ARE LEFT UNRESOLVED BY
THE DOCUMENTS BEFORE US."  SLATER V. MEXICAN NATIONAL R. CO., SUPRA,
194 U.S. AT 130.  RESPONDENTS, INDEED, IN THEIR EFFORT TO SHOW THAT THE
CONVENTION LAYS DOWN PURELY "PROCEDURAL" REQUIREMENTS, RELY UPON
"PERSONAL CONSULTATIONS WITH THREE ACTIVE MARITIME LAWYERS OF ANTWERP"
WHICH ARE NO PART OF THE RECORD BEFORE US.  "SUBSTANCE" AND
"PROCEDURE," MOREOVER, ARE NOT LEGAL CONCEPTS OF INVARIANT CONTENT, SEE
GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 109, AND ON THE BASIS OF WHAT
IS BEFORE US WE ARE PRECLUDED FROM CHOOSING ONE OF THESE CATEGORIES
RATHER THAN THE OTHER. 

IT IS IMPORTANT TO ADD, MOREOVER, THAT THE QUESTION OF WHAT LAW
GOVERNS THE SUBSTANTIVE LIMIT OF LIABILITY SHOULD BE DETERMINED UPON
REMAND IN ADVANCE OF THE PROOF OF INDIVIDUAL CLAIMS.  A PROCEEDING TO
LIMIT LIABILITY IS IPSO FACTO A PROCEEDING TO LIMIT RECOVERY, AND THE
AMOUNT OF THE APPLICABLE LIMIT, LIKE THE VALUE OF THE VESSEL AND
FREIGHT, IS A QUESTION AFFECTING THE MAGNITUDE OF THE RES FROM WHICH
RECOVERY IS SOUGHT.  IT IS A QUESTION, THEREFORE, WHICH LIES AT THE
THRESHOLD OF ALL CLAIMS, IS EQUALLY RELEVANT TO ALL, AND SHOULD
ACCORDINGLY BE DISPOSED OF BEFORE ANY. 

ONE LAST POINT REMAINS TO BE CONSIDERED - THE AMOUNT OF THE BOND TO
BE REQUIRED OF BLACK DIAMOND UPON REMAND OF NO. 121.  A LITERAL READING
OF THE PROCEDURAL REQUIREMENTS OF R.S. SEC. 4285 WOULD COMPEL THE
POSTING OF A BOND IN "A SUM EQUAL TO THE AMOUNT OR VALUE OF THE
INTEREST OF SUCH OWNER IN THE VESSEL AND FREIGHT," IN THIS INSTANCE
ABOUT $1,000,000.  BUT WE THINK THAT THIS PROVISION, AS PART OF A TOTAL
LEGISLATIVE SCHEME, SHOULD BE READ IN THE LIGHT OF THE SUBSTANTIVE
LIMITATION IMPOSED BY R.S. SEC. 4283, FOR IT IS OBVIOUS THAT THE WORDS
"AMOUNT OR VALUE OF THE INTEREST OF SUCH OWNER" IN SEC. 4285 WERE
CARRIED OVER FROM AND ARE RELEVANT SOLELY TO THE IDENTICAL LANGUAGE OF
SEC. 4283 LAYING DOWN THE LIMIT WHICH RECOVERY AGAINST THE OWNER "SHALL
NOT  ...  EXCEED."  THE WHOLE TENOR OF R.S. SEC. 4285 - THE OPTION OF
DEPOSITING CASH OR "APPROVED SECURITY," THE DISCRETION GRANTED THE
COURT TO REQUIRE ADDITIONAL DEPOSITS IF "NECESSARY TO CARRY OUT THE
PROVISIONS OF SECTION 4283," AND THE ALTERNATIVE OF TRANSFERRING THE
VESSEL AND FREIGHT TO A TRUSTEE - IS ONE OF CONCERN WITH PROTECTING THE
ASSETS FROM WHICH THE CLAIMANTS' SATISFACTION MUST ULTIMATELY COME. 

IF, THEREFORE, BELGIAN LAW RATHER THAN R.S. SEC. 4283 SHOULD BE FOUND
TO GOVERN THE SUBSTANTIVE LIMIT OF LIABILITY, NO PURPOSE WOULD BE
SERVED, SO FAR AS PROCEEDINGS IN THE DISTRICT COURT ARE CONCERNED, BY
DEMANDING SECURITY IN EXCESS OF THAT LIMIT.  BUT THE CHOICE OF LAW
PRESENTS A KNOTTY PROBLEM, AND WE CANNOT OVERLOOK THE CONTINGENCIES OF
APPELLATE REVIEW.  IF THE DISTRICT COURT SHOULD FIND BELGIAN LAW
CONTROLLING, IT MIGHT, UNDER OUR INTERPRETATION OF SEC. 4285, EXACT A
BOND OF ONLY $325,000.  IF, HOWEVER, A CONTRARY VIEW SHOULD ULTIMATELY
PREVAIL, THE REQUISITE AMOUNT OF THE BOND WOULD HAVE BEEN $1,000,000. 
THE DISTRICT COURT, THEREFORE, SHOULD PROVIDE FOR THAT CONTINGENCY BY
REQUIRING BLACK DIAMOND TO POST A BOND FOR THE VALUE OF THE SHIP AND
FREIGHT, NOT BECAUSE SEC. 4285 DEMANDS IT, BUT AS AN EXERCISE OF ITS
POWER TO PRESERVE THE STATUS QUO PENDING APPEAL.  SEE SCRIPPS-HOWARD
RADIO, INC. V. F.C.C., 316 U.S. 4, 9-10. 

SO, FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION, THE CASE IS
REVERSED AND REMANDED. 

FN1  "SEC.  4285.  THE VESSEL OWNER, WITHIN SIX MONTHS AFTER A
CLAIMANT SHALL HAVE GIVEN TO OR FILED WITH SUCH OWNER WRITTEN NOTICE OF
CLAIM, MAY PETITION A DISTRICT COURT OF THE UNITED STATES OF COMPETENT
JURISDICTION FOR LIMITATION OF LIABILITY WITHIN THE PROVISIONS OF THIS
CHAPTER, AS AMENDED, AND THE OWNER (A) SHALL DEPOSIT WITH THE COURT,
FOR THE BENEFIT OF CLAIMANTS, A SUM EQUAL TO THE AMOUNT OR VALUE OF THE
INTEREST OF SUCH OWNER IN THE VESSEL AND FREIGHT, OR APPROVED SECURITY
THEREFOR, AND IN ADDITION SUCH SUMS, OR APPROVED SECURITY THEREFOR, AS
THE COURT MAY FROM TIME TO TIME FIX AS NECESSARY TO CARRY OUT THE
PROVISIONS OF SECTION 4283, AS AMENDED, OR (B) AT HIS OPTION SHALL
TRANSFER, FOR THE BENEFIT OF CLAIMANTS, TO A TRUSTEE TO BE APPOINTED BY
THE COURT HIS INTEREST IN THE VESSEL AND FREIGHT, TOGETHER WITH SUCH
SUMS, OR APPROVED SECURITY THEREFOR, AS THE COURT MAY FROM TIME TO TIME
FIX AS NECESSARY TO CARRY OUT THE PROVISIONS OF SECTION 4283, AS
AMENDED.  UPON COMPLIANCE WITH THE REQUIREMENTS OF THIS SECTION ALL
CLAIMS AND PROCEEDINGS AGAINST THE OWNER WITH RESPECT TO THE MATTER IN
QUESTION SHALL CEASE." 

FN2  "SEC.  4283.  (A)  THE LIABILITY OF THE OWNER OF ANY VESSEL,
WHETHER AMERICAN OR FOREIGN, FOR ANY EMBEZZLEMENT, LOSS, OR DESTRUCTION
BY ANY PERSON OF ANY PROPERTY, GOODS, OR MERCHANDISE SHIPPED OR PUT ON
BOARD OF SUCH VESSEL, OR FOR ANY LOSS, DAMAGE, OR INJURY BY COLLISION,
OR FOR ANY ACT, MATTER, OR THING, LOSS, DAMAGE, OR FORFEITURE, DONE,
OCCASIONED, OR INCURRED, WITHOUT THE PRIVITY OR KNOWLEDGE OF SUCH OWNER
OR OWNERS, SHALL NOT, EXCEPT IN THE CASES PROVIDED FOR IN SUBSECTION
(B) OF THIS SECTION, EXCEED THE AMOUNT OR VALUE OF THE INTEREST OF SUCH
OWNER IN SUCH VESSEL, AND HER FREIGHT THEN PENDING." 

FN3  THE PERTINENT PARTS OF THE CONVENTION, PUBLISHED IN U.S. DEPT.
OF STATE TREATY INFORMATION BULL.  NO. 20, P. 13(1931), ARE:

                              "ARTICLE 1 

"THE LIABILITY OF THE OWNER OF A SEAGOING VESSEL IS LIMITED TO AN
AMOUNT EQUAL TO THE VALUE OF THE VESSEL, THE FREIGHT, AND THE
ACCESSORIES OF THE VESSEL, IN RESPECT OF - 

"1.  COMPENSATION DUE TO THIRD PARTIES BY REASON OF DAMAGE CAUSED,
WHETHER ON LAND OR ON WATER, BY THE ACTS OR FAULTS OF THE MASTER, CREW,
PILOT, OR ANY OTHER PERSON IN THE SERVICE OF THE VESSEL; 

"2.  COMPENSATION DUE BY REASON OF DAMAGE CAUSED EITHER TO CARGO
DELIVERED TO THE MASTER TO BE TRANSPORTED, OR TO ANY GOODS AND PROPERTY
ON BOARD; 

     .         .         .         .         . 

"5.  ANY OBLIGATION TO REMOVE THE WRECK OF A SUNKEN VESSEL, AND ANY
OBLIGATIONS CONNECTED THEREWITH; 

     . .         .         .         . 

"PROVIDED THAT, AS REGARDS THE CASES MENTIONED IN NOS. 1, 2, 3, 4,
AND 5 THE LIABILITY REFERRED TO IN THE PRECEDING PROVISIONS SHALL NOT
EXCEED AN AGGREGATE SUM EQUAL TO 8 POUNDS STERLING PER TON OF THE
VESSEL'S TONNAGE. 

     .         .         .         .         .

                           "ARTICLE 4 

"THE FREIGHT REFERRED TO IN ARTICLE 1, INCLUDING PASSAGE MONEY, IS
DEEMED, AS RESPECTS VESSELS OF EVERY DESCRIPTION, TO BE A LUMP SUM
FIXED AT ALL EVENTS AT 10 PER CENT OF THE VALUE OF THE VESSEL AT THE
COMMENCEMENT OF THE VOYAGE.  ... 

     .         .         .        .         .

                              "ARTICLE 7 

"WHERE DEATH OR BODILY INJURY IS CAUSED BY THE ACTS OR FAULTS OF THE
CAPTAIN, CREW, PILOT, OR ANY OTHER PERSON IN THE SERVICE OF THE VESSEL,
THE OWNER OF THE VESSEL IS LIABLE TO THE VICTIMS OR THEIR
REPRESENTATIVES IN AN AMOUNT EXCEEDING THE LIMIT OF LIABILITY PROVIDED
FOR IN THE PRECEDING ARTICLES UP TO 8 POUNDS STERLING PER TON OF THE
VESSEL'S TONNAGE.  ... 

.         .         .         .         .

            "ARTICLE 10 

"WHERE THE PERSON WHO OPERATES THE VESSEL WITHOUT OWNING IT OR THE
PRINCIPAL CHARTERER IS LIABLE UNDER ONE OF THE HEADS ENUMERATED IN
ARTICLE 1, THE PROVISIONS OF THIS CONVENTION ARE APPLICABLE TO HIM. 

              "ARTICLE 11 

"FOR THE PURPOSES OF THE PROVISIONS OF THE PRESENT CONVENTION,
'TONNAGE' IS CALCULATED AS FOLLOWS: 

"IN THE CASE OF STEAMERS AND OTHER MECHANICALLY PROPELLED VESSELS,
NET TONNAGE, WITH THE ADDITION OF THE AMOUNT DEDUCTED FROM THE GROSS
TONNAGE ON ACCOUNT OF ENGINE-ROOM SPACE FOR THE PURPOSE OF ASCERTAINING
THE NET TONNAGE.  ...  " 

FN4 "SEC.  2408.  SECURITY NOT REQUIRED OF UNITED STATES 

"SECURITY FOR DAMAGES OR COSTS SHALL NOT BE REQUIRED OF THE UNITED
STATES, ANY DEPARTMENT OR AGENCY THEREOF OR ANY PARTY ACTING UNDER THE
DIRECTION OF ANY SUCH DEPARTMENT OR AGENCY ON THE ISSUANCE OF PROCESS
OR THE INSTITUTION OR PROSECUTION OF ANY PROCEEDING.  ...  " 

FN5  "SEC.  743.  PROCEDURE IN CASES OF LIBEL IN PERSONAM. 

"  ...  NEITHER THE UNITED STATES NOR SUCH CORPORATION SHALL BE
REQUIRED TO GIVE ANY BOND OR ADMIRALTY STIPULATION ON ANY PROCEEDING
BROUGHT HEREUNDER." 

FN6  SEE FOOTNOTE 4 ANTE. 

FN7  SEE FOOTNOTE 5 ANTE. 

FN8  SEE FOOTNOTE 1 ANTE. 

MR. JUSTICE JACKSON, DISSENTING. 

I SUSPECT THIS DECISION WILL CAUSE CONFUSION IN PRACTICAL APPLICATION
OF THE ACT OF CONGRESS GOVERNING LIMITATION PROCEEDINGS IN ADMIRALTY. 

THE ACT IS DESIGNED TO ENCOURAGE AMERICAN CAPITAL TO RISK ITSELF IN
SHIPPING VENTURES WHERE "SHIPS ARE BUT BOARDS, SAILORS BUT MEN:  ...
AND THEN THERE IS THE PERIL OF WATERS, WINDS, AND ROCKS."  IN ORDER
THAT DISASTER AT SEA MIGHT NOT JEOPARDIZE THE SHIPOWNER'S OTHER ASSETS,
CONGRESS LIMITED HIS LIABILITY TO THE "VALUE OF THE INTEREST OF SUCH
OWNER IN SUCH VESSEL, AND HER FREIGHT THEN PENDING."  R.S. SEC. 4283,
AS AMENDED, 49 STAT. 1479, 46 U.S.C. SEC. 183.  FN1  THIS LIMITATION
SERVES MUCH THE SAME PURPOSE FOR MARITIME VENTURES THAT THE CORPORATE
FICTION SERVES FOR THE LANDSMAN'S ENTERPRISES. 

THE STATUTE ALSO PROVIDES A SKELETON PROCEEDING, FILLED IN BY OUR
RULES, FOR AFFIRMATIVELY EFFECTING THIS LIMITATION OF LIABILITY WHEN
CATASTROPHE THREATENS CLAIMS THAT EXCEED THE VALUE OF SHIP AND
FREIGHT.  TO A LANDLOCKED MIND IT HAS SOME ANALOGY TO VOLUNTARY
BANKRUPTCY.  IT IS, IN EFFECT, A TURN-OVER OF THE ASSETS AT RISK TO
SATISFY CREDITORS.  THE OWNER MAY, AFTER PETITIONING THE DISTRICT COURT
FOR LIMITATION OF LIABILITY, EITHER TRANSFER TO A TRUSTEE HIS INTEREST
IN THE VESSEL AND FREIGHT, TOGETHER WITH ENOUGH TO MAKE UP THE
LIMITATION, AND BE QUIT OF FURTHER RESPONSIBILITY, OR HE MAY KEEP HIS
SHIP AND SAIL ON, PROVIDED HE SHALL DEPOSIT WITH THE COURT "A SUM EQUAL
TO THE AMOUNT OR VALUE OF THE INTEREST OF SUCH OWNER IN THE VESSEL AND
FREIGHT, OR APPROVED SECURITY THEREFOR."  R.S. SEC. 4285, AS AMENDED,
49 STAT. 1480, 46 U.S.C. SEC. 185. 

OUR STATUTE IS CLEAR:  SEC. 4283 FIXES THE MAXIMUM LIABILITY AT SHIP
PLUS FREIGHT AND SEC. 4285 SETS THE MINIMUM SECURITY AT THE SAME
FIGURE.  TO PROVIDE ANY OTHER LIMIT OF LIABILITY OR SECURITY IS TO
REWRITE BOTH SECTIONS.  AS WRITTEN, THE TWO SECTIONS PROVIDE AND ARE
DESIGNED TO PROVIDE A PROVISIONAL REMEDY TO LET THE SHIP GO HER WAY
WHILE THE CREDITORS ARE SECURED AS WELL AS IF SHE WERE HELD IN CUSTODY
TO PAY THEIR CLAIMS. 

OUR OWN RULES IN ADMIRALTY, AS AMENDED JUNE 21, 1948, PRESCRIBE THE
PRACTICE FOR APPLYING THIS LIMITATION WHEN THE SHIPOWNER TAKES THE
INITIATIVE UNDER R.S. SEC. 4285.  THE PROCEEDING IS CONDUCTED IN TWO
STAGES.  IN THE FIRST OR PRELIMINARY STAGE THE OWNER PETITIONS FOR
RELIEF FROM PERSONAL LIABILITY, IS REQUIRED EITHER TO SURRENDER HIS
INTEREST IN THE SHIP AND HER FREIGHT OR TO STIPULATE, WITH ADEQUATE
BOND, TO PAY INTO COURT ITS VALUE.  THE STATUTE SAYS, "UPON COMPLIANCE
WITH THE REQUIREMENTS OF THIS SECTION ALL CLAIMS AND PROCEEDINGS
AGAINST THE OWNER WITH RESPECT TO THE MATTER IN QUESTION SHALL CEASE." 
AT THIS POINT AN IMPORTANT CHANGE IN THE NATURE OF THE PROCEEDING
OCCURS. 

THE PROCEEDING CONTINUES AS A PROCEEDING IN REM AGAINST EITHER THE
SHIP OR THE FUND AS THE RES. OUR RULES PROVIDE THAT WHEN PETITIONER
COMPLIES WITH THE COURT'S ORDER AS TO SURRENDER OR BOND, THE COURT
SHALL ISSUE A MONITION REQUIRING ALL PERSONS ASSERTING CLAIMS TO FILE
THE SAME AND MAY ALSO ISSUE INJUNCTION AGAINST THE FURTHER PROSECUTION
OF SUITS AGAINST EITHER THE OWNER OR THE VESSEL.  RULE 51.  THE COURT
THEN ADJUDICATES THE CLAIMS AND APPORTIONS THE AVAILABLE FUND AMONG
THEM.  RULE 52.  THE OWNER IS AT LIBERTY TO CONTEST HIS LIABILITY OR
THE LIABILITY OF THE VESSEL "PROVIDED HE SHALL HAVE COMPLIED" WITH THE
REQUIREMENTS OF SURRENDER OR DEPOSIT AS ABOVE SET FORTH.  RULE 53. 

WE THINK SUCH COMPLIANCE IS A CONDITION PRECEDENT TO OBTAINING A
FORUM CONCURSUS TO ADJUDICATE LIABILITY.  AS THE PETITIONER IN THIS
CASE DID NOT POST THE SECURITY NOR SURRENDER THE SHIP AS REQUIRED, THE
COURT BELOW PROPERLY DISMISSED THE PETITION AND REFUSED TO ENTER THE
SECOND OR ADJUDICATING STAGE OF THE PROCEEDING. 

THIS COURT APPARENTLY HOLDS THAT COMPLIANCE IS NOT A CONDITION
PRECEDENT AND THAT INSTEAD OF THE VESSEL'S VALUE SOME OTHER MEASURE OF
LIABILITY MIGHT BE ADEQUATE.  WHILE IT REQUIRES THE PRESCRIBED BOND IN
THIS PARTICULAR CASE, IT DOES SO, AS WE READ ITS OPINION, ONLY AS A
MATTER OF DISCRETION AND BECAUSE OF UNCERTAINTY AS TO THE FINAL
DECISION ON THE FOREIGN LAW ISSUE ON APPEAL.  IT SEEMS TO AUTHORIZE A
FOREIGN LAW LIMITATION ON LIABILITY TO BE APPLIED BEFORE A FORUM
CONCURSUS TAKES PLACE, WHILE WE THINK ANY ISSUE AS FOREIGN LAW
LIABILITY IS TO BE APPLIED ONLY IN THE LATTER STAGE OF THE PROCEEDINGS
WHEN THE GENERAL ISSUES AS TO LIABILITY ARE TO BE DETERMINED. 
CONGRESS COULD NOT HAVE BEEN UNAWARE THAT MARITIME USAGES THE WORLD
OVER HAVE IMPOSED SOME LIMITATION UPON SHIP-OWNERS' LIABILITY AND THAT
SEVERAL BASES FOR ITS ASCERTAINMENT HAVE EXISTED.  SOME SYSTEMS HAVE
ADMITTED NO PERSONAL LIABILITY OF THE OWNER, CONFINING LIABILITY TO THE
SHIP ITSELF; OTHERS HAVE LIMITED THE OWNER'S PERSONAL RESPONSIBILITY ON
HIS ABANDONMENT OF THE SHIP AND FREIGHT.  STILL OTHERS HAVE LIMITED
PERSONAL RESPONSIBILITY TO PAYMENT OF A SUM COMPUTED ON THE SHIP'S
TONNAGE.  CONGRESS, HOWEVER, HAS DELIBERATELY IMPOSED AND ADHERED TO
OUR OWN MEASURE OF LIABILITY BASED ON THE ACTUAL VALUE OF THE INTEREST
IN THE SHIP AND HER FREIGHT.  WE THINK THERE IS NO AUTHORITY FOR
RELEASING THE OWNER FROM LIABILITY, OR RELEASING THE SHIP, WHICH ARE
THE STEPS NOW UNDER CONSIDERATION, UNTIL THE OWNER HAS COMPLIED WITH
PROVISIONS WHICH FULLY PROTECT THIS AMERICAN MEASURE OF LIABILITY. 

IN THIS CASE, THE REASON THE OWNERS DID NOT COMPLY WITH THE AMERICAN
LIMITATION PROVISION IS THAT THEY AVER THAT ON THE SCHELDE, WHERE THE
COLLISION OCCURRED, BELGIAN LAW GRANTED A MUCH MORE DRASTIC LIMITATION,
UNDER WHICH THEIR LIABILITY IS ONLY ABOUT ONE-THIRD OF THAT IMPOSED BY
OUR LAW.  THE COURT BELOW HELD THAT RELEASE OF THE OWNER AND SHIP, AND
INVOCATION OF A FORUM CONCURSUS, COULD NOT BE GRANTED ON THIS BASIS. 
BUT IT HELD THAT IF THEY HAD COMPLIED WITH PROVISIONS OF AMERICAN LAW
NECESSARY TO REACH THE QUESTION OF THE AMOUNT OF AGGREGATE LIABILITY,
THEY WERE AT LIBERTY TO INTERPOSE THE BELGIAN LAW AS A DEFENSE.  THE
COURT NOW HOLDS THAT THIS QUESTION OF FACT - WHAT IS THE FOREIGN LAW? 
- SHOULD BE DETERMINED AS A PART OF THE PRELIMINARY STEP IN THE CASE
AND THAT THE BOND MAY BE LIMITED THEREBY.  WE THINK THIS IS NOT THE
SCHEME OF THE STATUTE AND THE RULES AND THAT, EXCEPT FOR ISSUES
SUBSIDIARY TO THE COURT'S FIXING OF THE SECURITY REQUIRED UNDER RULE
51, ALL MATTERS OF FACT, GOING TO THE SUBSTANCE OF LIABILITY, ARE TO BE
HEARD ONLY AT THE LATER STAGES OF THE PROCEEDINGS. 

THE LIMITATION FIGURE IS ESTABLISHED PRELIMINARILY, NOT BECAUSE IT
REPRESENTS THE RES, BUT BECAUSE THE STATUTE AND RULES PRESCRIBE THAT
FORMULA AND PROCEDURE FOR FIXING BOTH THE MAXIMUM LIABILITY AND MINIMUM
SECURITY REQUIRED OF THE OWNER.  AND IT HAS NO BEARING ON THE AMOUNT OF
CLAIMS THAT MAY BE PROVED - UNTIL THE LATTER ARE DETERMINED AND A
PROPORTION ESTABLISHED THERE IS NO NEED TO KNOW, FOR THAT PURPOSE, WHAT
LIMIT OF LIABILITY APPLIES.  INDEED, UNLESS IT IS INTENDED TO ALSO
CHANGE THE RULE WHERE THE STATUTORY LIMITATION UNDER R.S. SEC. 4283 IS
SET UP AS A DEFENSE, IT MAY BE ASSERTED AFTER TRIAL ON THE MERITS AND
AFTER JUDGMENT.  THE BENEFACTOR, 103 U.S. 239.  AND BY THE TERMS OF
RULE 55, THE PROVISIONS OF RULES 51-54 REGULATING LIMITATION OF
LIABILITY PROCEEDINGS ARE MADE APPLICABLE EVEN TO THE COURTS OF
APPEALS. 

ADMIRALTY PRACTICE IS A UNIQUE SUSTEM OF SUBSTANTIVE LAW AND
PROCEDURE WITH WHICH MEMBERS OF THIS COURT ARE SINGULARLY DEFICIENT IN
EXPERIENCE.  THE COURT BELOW IS PERHAPS THE MOST EXPERIENCED IN THIS
COUNTRY.  THE ISSUE ON WHICH WE REVERSE IT IS NOT ONE OF ULTIMATE
RIGHTS OF PARTIES BUT ONE OF PRACTICE, THE CONSEQUENCES OF WHICH CANNOT
BE FORESEEN.  I SHOULD LEAVE THE PROBLEM, AT LEAST AT THIS STAGE, WHERE
THE COURT OF APPEALS LEFT IT, WITH A MINOR EXCEPTION. 

OF COURSE, IT SHOULD BE NOTED THAT THE GOVERNMENT IS EXEMPT FROM
GIVING ANY SECURITY, BUT THAT IS AN OVERSIGHT THAT IT HARDLY NEEDED TO
COME HERE TO CORRECT.  IT SHOULD HAVE THE LIMITATION WHICH CONGESS HAS
PRESCRIBED. 

EXCEPT FOR THAT DETAIL, I WOULD AFFIRM. 

IT MAY BE THAT PETITIONER SHOULD NOW BE ALLOWED TO AMEND AND FILE THE
REQUIRED BOND EQUAL TO THE SHIP'S VALUE AND PROCEED.  IT HAS NOT SO FAR
ASKED TO DO SO, INSISTING INSTEAD UPON WHAT IT THOUGHT TO BE ITS LEGAL
RIGHT TO PROCEED WITHOUT COMPLIANCE.  THIS QUESTION, TOO, MAY BE LEFT
TO THE COURTS BELOW. 

FN1  "THE LIABILITY OF THE OWNER OF ANY VESSEL, WHETHER AMERICAN OR
FOREIGN, FOR ANY EMBEZZLEMENT, LOSS, OR DESTRUCTION BY ANY PERSON OF
ANY PROPERTY, GOODS, OR MERCHANDISE SHIPPED OR PUT ON BOARD OF SUCH
VESSEL, OR FOR ANY LOSS, DAMAGE, OR INJURY BY COLLISION, OR FOR ANY
ACT, MATTER, OR THING, LOSS, DAMAGE, OR FORFEITURE, DONE, OCCASIONED,
OR INCURRED, WITHOUT THE PRIVITY OR KNOWLEDGE OF SUCH OWNER OR OWNERS,
SHALL NOT  ...  EXCEED THE AMOUNT OR VALUE OF THE INTEREST OF SUCH
OWNER IN SUCH VESSEL, AND HER FREIGHT THEN PENDING." 

MR. JUSTICE REED AND MR. JUSTICE DOUGLAS JOIN IN THIS OPINION. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I AGREE WITH MR. JUSTICE JACKSON THAT, WHEN CONGRESS GAVE SHIPOWNERS
THE PRIVILEGE OF LIMITING THEIR LIABILITY AND CONDITIONED THAT
PRIVILEGE, IN THE ALTERNATIVE, UPON TURNING OVER THE VESSEL AND FREIGHT
FOR THE BENEFIT OF CLAIMANTS OR DEPOSITING WITH THE COURT CASH OR
APPROVED SECURITY OF EQUIVALENT VALUE, IT MEANT EXACTLY WHAT IT WROTE
INTO THE STATUTE CONCERNING THE AMOUNT OF THE SECURITY TO BE GIVEN. 

NOTHING IN THE STATUTE'S WORDING, PURPOSE, OR LEGISLATIVE HISTORY IS
CITED OR EXISTS TO JUSTIFY REWRITING "A SUM EQUAL TO THE AMOUNT OR
VALUE OF THE INTEREST OF SUCH OWNER IN THE VESSEL AND FREIGHT,"  FN1
SO AS TO MAKE THAT WORDING READ "A SUM EQUAL TO ONE-THIRD THE VALUE OF
THE INTEREST OF SUCH OWNER WHEN THAT AMOUNT POSSIBLY BUT BY NO MEANS
CERTAINLY WILL BE THE LIMIT OF HIS SUBSTANTIVE LIABILITY AFTER THE
CLAIMS AGAINST HIM ARE FINALLY DETERMINED." 

THE MOST APPEALING ARGUMENT PUT FORWARD TO SUPPORT THIS STATUTORY
DISTORTION IS PETITIONERS' WHOLLY SPECIOUS PLEA OF RESULTING
"INJUSTICE" IF THE JUDICIAL REVISION IS NOT MADE.  THE PLEA IS FOUNDED
ALTOGETHER UPON PETITIONERS' ASSUMPTION THAT THEIR VIEW OF THE EXTENT
OF THEIR AGGREGATE POSSIBLE LIABILITY WILL PREVAIL, WHEN THE TIME COMES
FOR DECIDING THAT QUESTION. 

PETITIONERS' VIEW IS THAT THE LEX LOCI DELICTI GOVERNS BOTH THE
EXISTENCE AND THE EXTENT OF THEIR LIABILITY IN THIS CASE.  THAT LAW IS
THE LAW OF BELGIUM, BECAUSE THE COLLISION HERE INVOLVED TOOK PLACE IN
BELGIAN WATERS.  MOREOVER, SINCE BELGIUM RATIFIED THE BRUSSELS
CONVENTION OF AUGUST 25, 1924,  FN2  THAT CONVENTION IS CLAIMED TO BE
CONTROLLING OF THE RESULTING SUBSTANTIVE LIABILITY.  THIS, BECAUSE THE
AGGREGATE LIMIT THE CONVENTION PRESCRIBES COMES TO ONLY SOME $325,000
IN THIS CASE AND THAT LIMIT, SO IT IS ARGUED, ATTACHES TO THE RIGHT OF
RECOVERY AS PART OF THE RIGHT, NOT MERELY AS A MATTER OF REMEDY.  SEE
SLATER V. MEXICAN NATIONAL R. CO., 194 U.S. 120.  CF. SMITH V. CONDRY,
1 HOW.  28, 33; CUBA R. CO. V. CROSBY, 222 U.S. 473; AMERICAN BANANA
CO. V. UNITED FRUIT CO., 213 U.S. 347. 

HENCE, IT IS URGED, PETITIONER BLACK DIAMOND SATISFIED THE
REQUIREMENTS OF REV. STAT. SEC. 4285, AS AMENDED, FOR LIMITATION OF
LIABILITY, WHEN IT DEPOSITED AN APPROVED BOND FOR $325,000, RATHER THAN
ONE IN THE AMOUNT OF $1,000,000, THE VALUE OF THE OWNER'S INTEREST IN
THE VESSEL AND FREIGHT, AS SEC. 4285 IN TERMS REQUIRES.  THE CONCLUSION
IS GROUNDED ON THE "INJUSTICE" WHICH PETITIONERS SAY WOULD RESULT IF
ONE SUBSTANTIVELY LIABLE FOR ONLY $325,000 WERE REQUIRED TO POST BOND
IN THREE TIMES THAT AMOUNT IN ORDER TO HAVE THE ADVANTAGE OF
LIMITATION.  THIS, IT IS SAID, WOULD MEAN FORCING SUCH AN OWNER TO PAY
BOND PREMIUMS THREE TIMES LARGER THAN NECESSARY TO DISCHARGE ALL HIS
LIABILITIES, AN "INJUSTICE" IT IS ARGUED CONGRESS CANNOT HAVE
CONTEMPLATED NOTWITHSTANDING ITS CLEAR AND UNAMBIGUOUS LANGUAGE. 

EVEN IF PETITIONERS' ASSUMPTION CONCERNING THEIR ULTIMATE LIABILITY
SHOULD TURN OUT TO BE TRUE, THE STATUTORY COMMAND IS CLEAR AND
UNEQUIVOCAL:  TURN OVER THE SHIP AND THE FREIGHT OR THEIR VALUE AS THE
PRICE OF LIMITATION.  IN THIS COMMAND CONGRESS WAS CONCERNED NOT AT ALL
WITH THE EXTENT OF AGGREGATE CLAIMS OR LIABILITIES.  IT WAS CONCERNED
ONLY WITH AFFORDING THE OWNER A CHANCE TO LIMIT HIS LIABILITIES, BUT AT
THE SAME TIME ALLOWING THIS PRIVILEGE ONLY ON PRECISE AND FIXED
CONDITIONS FOR GIVING SECURITY TO HIS CREDITORS IN THE AMOUNT
SPECIFIED.  THIS WAS UNRELATED TO THE AMOUNT OF THE LIABILITIES IN THE
AGGREGATE, WHETHER ABOVE OR BELOW THE MAXIMUM FIXED BY THE STATUTE. 
FN3 

THAT CONGRESS INTENDED THE SAME MAXIMUM AND THE SAME SECURITY FOR
CLAIMANTS, REGARDLESS OF THE ALTERNATIVE MODE CHOSEN FOR GIVING THE
SECURITY, IS SHOWN BY THE VERY ALTERNATIVES THEMSELVES.  THEY ARE
EQUIVALENTS.  THERE WAS NO INTENT TO PERMIT LESS SECURITY TO BE GIVEN
WHEN THE OWNER ELECTS TO GIVE THE STATUTORY SUBSTITUTES THAN WHEN HE
TURNS OVER THE SHIP.  CORRELATIVELY THERE WAS NO INTENTION TO GIVE HIM
THE LIMITATION FOR LESS COST OR ON MORE ADVANTAGEOUS TERMS IN THE ONE
CASE THAN IN THE OTHER.  THE PROVISION FOR SUBSTITUTING MONEY OR
SECURITY FOR THE SHIP HAD NO PURPOSE OR FUNCTION TO CORRELATE THE BOND
REQUIRED WITH THE AMOUNT OF THE ULTIMATE AGGREGATE SUBSTANTIVE
LIABILITIES, WHICH SELDOM CAN BE KNOWN IN ADVANCE OF THEIR FINAL
DETERMINATION.  THE ALTERNATIVE MODE'S PURPOSE WAS ONLY TO PERMIT THE
OWNER TO RELEASE THE SHIP AND CONTINUE IT IN ACTIVE BUSINESS USE,
PROVIDED HE SUBSTITUTED ITS EQUIVALENT IN VALUE, NOT SOME LESSER SUM,
FOR IT. 

IT IS QUITE TRUE THAT THE STATUTE WAS ENACTED FOR SHIPOWNERS' BENEFIT
AND FOR ENCOURAGEMENT OF THE INDUSTRY, BY ENABLING OWNERS TO LIMIT
THEIR LIABILITY.  BUT IN DOING THIS AND THEREBY CUTTING DOWN THE RIGHTS
OF CLAIMANTS TO RECOVERY, CONGRESS WAS NOT UNMINDFUL OF THE LATTER. 
FOR SATISFYING THEIR UNRESTRICTED CLAIMS IT SUBSTITUTED A FUND INSTEAD
OF THE OWNER'S GENERAL AND UNLIMITED LIABILITY.  THAT FUND WAS THE
VESSEL'S VALUE OR ITS EQUIVALENT.  NOR WAS THIS A SUBORDINATE FEATURE
OF THE SCHEME OF LIMITATION.  IT WAS THE VERY HEART OF THAT SCHEME,
AND, IN MY OPINION, WAS INTENDED TO CREATE A GENERAL AND UNIFORM POLICY
FOR APPLICATION IN AMERICAN COURTS.  IN CUTTING DOWN CLAIMANTS' RIGHTS
OF RECOVERY TO THE FUND PRESCRIBED, CONGRESS WAS NOT GIVING THE OWNER
THE ADDITIONAL RIGHT TO CUT FURTHER THE SECURITY PROVIDED FOR THEIR
PAYMENT, BY EITHER ASSUMING OR PLEADING THAT HIS ULTIMATE AGGREGATE
LIABILITIES WOULD BE BELOW THAT FUND. 

THIS BRINGS US TO THE FINAL CONSIDERATION, WHICH IS THAT THERE IS NO
INJUSTICE WHATEVER HERE, THERE IS ONLY AN IMAGINED ONE, IN REQUIRING
BLACK DIAMOND TO DEPOSIT IN COURT CASH OR SECURITY IN THE FULL AMOUNT
OF $1,000,000 REQUIRED BY THE STATUTE'S TERMS.  THE AGGREGATE OF
PETITIONERS' LIABILITIES HAS NOT BEEN DETERMINED, NOR CAN IT BE UNTIL
THE FURTHER AND PROBABLY EXTENDED PROCEEDINGS FOR THAT PURPOSE HAVE
BEEN CONCLUDED.  MEANWHILE, IT MUST REMAIN UNCERTAIN, AS IT HAS DURING
ALL THE LITIGATION TO THIS DATE, WHETHER PETITIONERS' OR RESPONDENT'S
VIEW ON THAT MATTER ULTIMATELY WILL PREVAIL.  IN OTHER WORDS, IT IS NOW
AS LIKELY THAT PETITIONERS' LIABILITIES EVENTUALLY WILL BE FOUND TO BE
$1,000,000 AS IT IS THAT THEY WILL BE FIXED ACCORDING TO PETITIONERS'
VIEW OF THE BELGIAN LAW AND OURS.  INDEED, THE COURT'S OPINION SETS
FORTH CONSIDERATIONS CASTING GRAVE DOUBT ON WHETHER PETITIONERS' THEORY
OF THE SUBSTANTIVE LIMITATION CAN PREVAIL. 

IN THIS STATE OF AFFAIRS PETITIONERS ACTUALLY ARE ASKING US TO GAMBLE
WITH THEM, AND AGAINST RESPONDENT AND OTHER CLAIMANTS, ON THE ULTIMATE
COMPUTATION OF PETITIONERS' AGGREGATE LIABILITIES.  AND IN THIS
PETITIONERS ARE ASKING US TO PUT UPON THE CLAIMANTS THE RISK THAT
PETITIONERS WILL TURN OUT TO BE RIGHT.  THAT RISK, UNDER THE STATUTE'S
POLICY, SHOULD BE THE OTHER WAY.  LIKEWISE, UNDER THAT POLICY, THE COST
OF THAT RISK IS PUT UPON PETITIONER BLACK DIAMOND.  IN REDUCING
CLAIMANTS' RIGHTS OF RECOVERY TO THE VALUE OF THE SHIP OR ITS
EQUIVALENT, CONGRESS DID NOT MEAN THAT THE CLAIMANTS SHOULD TAKE THE
RISK OF NOT HAVING THAT VALUE AVAILABLE TO SATISFY THEIR CLAIMS IF THE
AGGREGATE SHOULD EVENTUALLY BE HELD TO BE THE AMOUNT OF THE SPECIFIED
FUND.  NOR DID IT MEAN THAT THEY SHOULD HAVE THAT VALUE FOR SECURITY IF
THE SHIP WERE TURNED OVER FOR THEIR BENEFIT, BUT SHOULD BEAR EITHER THE
LOSS OR THE RISK IF THE SHIPOWNER ELECTED TO SUBSTITUTE CASH OR OTHER
SECURITY, WITH THE COURT'S APPROVAL, IN A SMALLER AMOUNT IN ORDER TO
KEEP HIS VESSEL RUNNING. 

IN THE EVENT PETITIONERS TURN OUT TO BE WRONG AND, AS SEEMS LIKELY IN
THAT EVENT, VALID CLAIMS SHOULD AMOUNT TO $1,000,000 OR MORE, UNDER THE
VIEW PETITIONERS WOULD HAVE US TAKE, THE CLAIMANTS WOULD HAVE CERTAIN
SECURITY TO APPLY ON WHAT IS DUE THEM FOR ONLY $325,000.  PETITIONER
BLACK DIAMOND THEN EITHER WILL HAVE LIMITED ITS LIABILITY TO THAT
AMOUNT, TO THE CLAIMANTS' LOSS AND CONTRARY TO THE STATUTE'S PROVISION;
OR, IF THE DISTRICT COURT SHOULD THEN SEE FIT TO APPLY THE AUTHORITY
GIVEN IT TO REQUIRE FURTHER SECURITY TO CARRY OUT THE PURPOSES OF SEC.
4283, AS AMENDED, FN4  IT WILL HAVE CAST THE BURDEN OF BLACK DIAMOND'S
SOLVENCY ON THE CLAIMANTS FOR THE PROBABLY EXTENDED PERIOD OF
LITIGATION NECESSARY TO COMPLETE THE FINAL DETERMINATION OF
PETITIONERS' SUBSTANTIVE LIABILITIES. 

I DO NOT THINK THE STATUTE MEANT THE CLAIMANTS TO BEAR EITHER SUCH A
LOSS OR SUCH A RISK.  ITS POLICY IS TO EXCHANGE LIMITATION FOR
SECURITY.  THE SECURITY SPECIFIED IS NOT CONTINGENT OR TO BE SUPPLIED
IN THE FUTURE.  IT IS A PRESENT EXCHANGE, IMMEDIATELY EFFECTIVE, TO
GIVE THE SHIPOWNER IMMUNITY TO LIABILITY BEYOND THE FUND EXACTED AND,
AT THE SAME TIME, TO RELIEVE CLAIMANTS OF ANY RISK THAT THE FUND WILL
NOT BE AVAILABLE IF THEIR VALID CLAIMS EVENTUALLY EQUAL OR EXCEED IT.
TO ALLOW SECURITY IN LESS THAN THE STATUTORY AMOUNT TO BE GIVEN, ON THE
CHANCE THAT VALID CLAIMS MAY TURN OUT TO BE LESS THAN THE FUND,
VITIATES THAT CLEAR STATUTORY OBJECT AND COMMAND.  THE ONLY PURPOSE OF
REQUIRING THE APPROVED SUBSTITUTED SECURITY TO BE DEPOSITED IN COURT IS
TO ASSURE THAT CLAIMANTS WILL NOT BEAR THE RISK OF LOSS OF THE FUND
PENDING THE FINAL DETERMINATION OF THEIR CLAIMS.    PETITIONERS' CLAIM
OF "INJUSTICE" IS THEREFORE WITHOUT SUBSTANCE.  BLACK DIAMOND SEEKS TO
SHIFT TO ITS CREDITORS THE RISK WHICH THE LANGUAGE AND POLICY OF THE
STATUTE PLACE ON IT.  THE STATUTE DOES NOT PERMIT SECURITY CONTINGENT
UPON THE OUTCOME OF THE ADJUDICATION OF CLAIMS OR TO BE GIVEN IN THE
FUTURE.  THE SECURITY IS TO BE GIVEN CONCURRENTLY WITH THE PRIVILEGE OF
LIMITATION AND IS TO STAND IN THE COURT'S CONTROL AND AT THE STATUTORY
AMOUNT UNTIL THE CLAIMS ARE FINALLY ADJUDICATED.  BLACK DIAMOND SEEKS
TO HAVE THE STATUTORY LIMITATION WITHOUT PAYING THE STATUTORY PRICE. 
IF THAT WERE ALLOWED, THE INJUSTICE WOULD FALL UPON THE CLAIMANTS, NOT
UPON BLACK DIAMOND. 

NO CASE HAS BEEN CITED WHICH HOLDS THAT THE STATUTORY LIMITATION CAN
BE OBTAINED BY GIVING SECURITY IN LESS THAN THE STATUTORY AMOUNT.  NOR
NEED WE NOW EXPRESS OPINION UPON THE PROBLEM CONSIDERED IN CASES LIKE
THE AQUITANIA, 20 F.2D 457, AND CURTIS BAY TOWING CO. V. TUG KEVIN
MORAN, 159 F.2D 273.  FN5 

IN MY VIEW PETITIONER BLACK DIAMOND HAS NOT COMPLIED WITH THE
STATUTE.  STRICTLY THEREFORE IT IS NOT ENTITLED TO THE STATUTORY
LIMITATION.  BUT BECAUSE THE QUESTION IS NOVEL, THE TIME FOR
INSTITUTING ANOTHER LIMITATION PROCEEDING HAS PASSED, AND FILING OF
SECURITY NOW IN ACCORDANCE WITH THE STATUTE'S COMMAND WOULD BETTER
SERVE ITS OBJECTS THAN DISMISSING THE CAUSE, I WOULD REVERSE THE
JUDGMENT AND REMAND THE CAUSE TO THE DISTRICT COURT TO PERMIT THE
FILING OF THE STATUTORY SECURITY, IF BLACK DIAMOND CAN AND PROMPTLY
WILL COMPLY WITH THAT REQUIREMENT.  THIS IS FOR THE REASON THAT THE
STATUTE, SEC. 4285, REQUIRES SECURITY TO BE GIVEN BY TURNING OVER THE
SHIP OR ITS VALUE IN ORDER TO SECURE THE LIMITATION OF LIABILITY, NOT
MERELY AS A MATTER OF JUDICIAL DISCRETION TO PRESERVE THE STATUS QUO
PENDING APPEAL FROM DETERMINATION OF THE ISSUES CONCERNING WHETHER THE
BELGIAN SUBSTANTIVE LIMITATION APPLIES.  THE STATUTORY SECURITY, IF
GIVEN, SHOULD REMAIN IN FORCE UNTIL ALL CLAIMS HAVE BEEN FILED AND
FINALLY ADJUDICATED. 

FN1  REV. STAT. SEC. 4285, AS AMENDED, 49 STAT. 1480, 46 U.S.C. SEC.
185.  THE FULL TEXT OF THE SECTION IS QUOTED IN NOTE 1 OF THE MAJORITY
OPINION. 

FN2  INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES
RELATING TO THE LIMITATION OF THE LIABILITY OF OWNERS OF SEAGOING
VESSELS, SIGNED AT BRUSSELS ON AUGUST 25, 1924.  SEE NOTE 3 OF THE
MAJORITY OPINION. 

FN3  BUT CF. THE CASES CITED IN THE TEXT INFRA AT NOTE 5. 

FN4 WHETHER THE SHIP IS TURNED OVER FOR THE CREDITOR'S BENEFIT OR
OTHER ACCEPTABLE SECURITY IS SUBSTITUTED, SEC. 4285, AS AMENDED,
AUTHORIZES THE COURT TO REQUIRE "IN ADDITION SUCH SUMS, OR APPROVED
SECURITY THEREFOR, AS THE COURT MAY FROM TIME TO TIME FIX AS NECESSARY
TO CARRY OUT THE PROVISIONS OF" SEC. 4283, AS AMENDED.  46 U.S.C. SEC.
185. 

FN5  HOLDING, AS THE COURT OF APPEALS SAID IN THIS CASE, THAT THE
LIMITATION PROCEEDING IS NOT AVAILABLE WHERE THE AGGREGATE OF KNOWN AND
PROBABLE CLAIMS IS LESS THAN THE VALUE OF THE SHIP. 
..END :




















COMMISSIONER V. PHIPPS, 336 U.S. 410 


NO. 83.  ARGUED DECEMBER 10, 1948.  - DECIDED MARCH 14, 1949.  - 167
F.2D 117, REVERSED. 


IN 1936 A PARENT CORPORATION MADE A TAX-FREE LIQUIDATION OF FIVE OF
ITS WHOLLY-OWNED SUBSIDIARIES BY DISTRIBUTING TO ITSELF ALL OF THEIR
ASSETS, SUBJECT TO THEIR LIABILITIES, AND REDEEMING AND CANCELING ALL
OF THEIR STOCK.  AT THAT TIME, ONE SUBSIDIARY HAD EARNINGS AND PROFITS
OF $90,362 ACCUMULATED SINCE FEBRUARY 28, 1913, AND THE OTHER FOUR HAD
DEFICITS AGGREGATING $3,147,803.  NOT COUNTING THE EARNINGS OR DEFICITS
OF ITS SUBSIDIARIES, THE PARENT HAD AT THE END OF THAT YEAR EARNINGS
AND PROFITS OF $2,129,957 ACCUMULATED AFTER FEBRUARY 28, 1913.  IN 1937
IT HAD EARNINGS OF $390,387.  DURING 1937 THE PARENT MADE A PRO RATA
CASH DISTRIBUTION OF $802,284 TO ITS PREFERRED STOCKHOLDERS.  HELD:
THIS DISTRIBUTION IN ITS ENTIRETY WAS A DIVIDEND UNDER SEC. 115 OF THE
REVENUE ACT OF 1936 AND CONSTITUTED ORDINARY INCOME.  PP. 411-421. 

1.  THE RULE OF COMMISSIONER V. SANSOME, 60 F.2D 931, IS GROUNDED NOT
ON A THEORY OF CONTINUITY OF THE CORPORATE ENTERPRISE BUT ON THE
NECESSITY TO PREVENT ESCAPE OF EARNINGS AND PROFITS FROM TAXATION.  PP.
414-417. 

2.  HARTER V. HELVERING, 79 F.2D 12, DISTINGUISHED.  PP. 417-418. 

3.  UNDER THE SANSOME RULE, EXPLICITLY RATIFIED BY CONGRESS, TAX-FREE
REORGANIZATIONS DO NOT DISTURB THE STATUS OF EARNINGS AND PROFITS
OTHERWISE AVAILABLE FOR DISTRIBUTION.  PP. 418-421. 

4.  IN THIS CASE, TO ALLOW DEDUCTION OF THE SUBSIDIARIES' DEFICITS
FROM THE PARENT'S EARNINGS WOULD, IN EFFECT, RECOGNIZE LOSSES THE TAX
EFFECTS OF WHICH CONGRESS HAS EXPLICITLY PROVIDED SHOULD BE DEFERRED. 
P. 421. 

COMMISSIONER OF INTERNAL REVENUE V. PHIPPS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

THE TAX COURT HELD THAT PART OF A CASH DISTRIBUTION TO STOCKHOLDERS BY
A PARENT CORPORATION WHICH HAD ABSORBED FIVE SUBSIDIARIES IN A TAX-FREE
LIQUIDATION WAS NOT A DIVIDEND TAXABLE AS INCOME UNDER SEC. 115 OF THE
REVENUE ACT OF 1936, BECAUSE THE ACCUMULATED EARNINGS AND PROFITS OF
THE PARENT CORPORATION, PLUS THOSE OF ONE OF THE SUBSIDIARIES, WERE
ERASED BY THE AGGREGATE DEFICITS OF THE OTHER FOUR SUBSIDIARIES.  8
T.C. 190.  THE COURT OF APPEALS AFFIRMED.  167 F.2D 117.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 807.  REVERSED, P. 421. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES A TAX-FREE LIQUIDATION BY A PARENT CORPORATION OF
SOME OF ITS SUBSIDIARIES.  AT THE TIME OF THE LIQUIDATION THE PARENT
HAD EARNINGS AND PROFITS AVAILABLE FOR DISTRIBUTION, AND THE
SUBSIDIARIES HAD AN AGGREGATE NET DEFICIT.  THE ISSUE NOW BEFORE US IS
WHETHER THE RULE OF COMMISSIONER V. SANSOME, 60 F.2D 931, REQUIRES THE
SUBTRACTION OF THE SUBSIDIARIES' DEFICIT FROM THE PARENT'S EARNINGS AND
PROFITS, IN DETERMINING WHETHER A SUBSEQUENT DISTRIBUTION BY THE PARENT
CONSTITUTED DIVIDENDS OR A RETURN OF CAPITAL TO ITS STOCKHOLDERS. 

THE SANSOME CASE, SUPRA, AROSE FROM A TAX-FREE REORGANIZATION IN
WHICH THE TRANSFEROR CORPORATION HAD A SURPLUS IN EARNINGS AND PROFITS
AVAILABLE FOR DISTRIBUTION.  IT WAS THERE HELD THAT THOSE EARNINGS AND
PROFITS, FOR PURPOSES OF A SUBSEQUENT DISTRIBUTION BY THE TRANSFEREE
CORPORATION TO ITS STOCKHOLDERS, RETAIN THEIR STATUS AS EARNINGS OR
PROFITS AND ARE TAXABLE TO THE RECIPIENTS AS DIVIDENDS.  THE RULE HAS
BEEN HELD TO INCLUDE LIQUIDATIONS OF A SUBSIDIARY BY ITS PARENT. 
ROBINETTE V. COMMISSIONER, 148 F.2D 513; U.S. TREAS. REG. 101, ART. 115
11, PROMULGATED UNDER THE REVENUE ACT OF 1938 AND MADE RETROACTIVE, 52
STAT 447. 

THE FACTS WERE STIPULATED, AND SO FOUND BY THE TAX COURT.  SO FAR AS
RELEVANT, THEY ARE AS FOLLOWS:  IN DECEMBER, 1936, NEVADA-CALIFORNIA
ELECTRIC CORPORATION LIQUIDATED FIVE OF ITS WHOLLY-OWNED SUBSIDIARIES
BY DISTRIBUTING TO ITSELF ALL OF THEIR ASSETS, SUBJECT TO THEIR
LIABILITIES, AND BY REDEEMING AND CANCELING ALL OF THEIR OUTSTANDING
STOCK.  NO GAIN OR LOSS ON THE LIQUIDATION WAS RECOGNIZED FOR INCOME
TAX PURPOSES UNDER SEC. 112(B)(6) OF THE REVENUE ACT OF 1936.  FN1  ON
THE DATE OF LIQUIDATION, ONE OF THE SUBSIDIARIES HAD EARNINGS AND
PROFITS ACCUMULATED AFTER FEBRUARY 28, 1913, IN THE AMOUNT OF
$90,362.77.  THE FOUR OTHERS HAD DEFICITS WHICH AGGREGATED
$3,147,803.62.  ON DECEMBER 31, 1936, THE PARENT HAD EARNINGS AND
PROFITS ACCUMULATED AFTER FEBRUARY 28, 1913, IN THE AMOUNT OF
$2,129,957.81, WHICH AMOUNT DOES NOT REFLECT THE EARNINGS OR DEFICITS
OF THE SUBSIDIARIES.  IN 1937, NEVADA-CALIFORNIA HAD EARNINGS OF
$390,387.02.  IN THE YEARS 1918 TO 1933 INCLUSIVE THE PARENT AND ITS
SUBSIDIARIES FILED CONSOLIDATED INCOME TAX RETURNS.  FN2 

RESPONDENT WAS THE OWNER OF 2,640 SHARES OF THE PREFERRED STOCK OF
NEVADA-CALIFORNIA.  DURING 1937 THAT CORPORATION MADE A PRO RATA CASH
DISTRIBUTION TO ITS PREFERRED STOCKHOLDERS IN THE AMOUNT OF $802,284,
OF WHICH RESPONDENT RECEIVED $18,480.  THE COMMISSIONER DETERMINED THAT
THE DISTRIBUTION WAS A DIVIDEND UNDER SEC. 115 OF THE REVENUE ACT OF
1936  FN3  AND CONSTITUTED ORDINARY INCOME IN ITS ENTIRETY. 

OF THE 1937 DISTRIBUTION, APPROXIMATELY 49% WAS CHARGEABLE TO
EARNINGS AND PROFITS OF THE TAXABLE YEAR.  CONSEQUENTLY, RESPONDENT
CONCEDED IN THE TAX COURT THAT THAT PERCENTAGE OF HER SHARE, OR ABOUT
NINE THOUSAND DOLLARS, WAS TAXABLE AS A DIVIDEND UNDER SEC. 115(A)(2). 
THE TAX COURT HELD IN HER FAVOR THAT THE BALANCE WAS NOT A TAXABLE
DIVIDEND OUT OF EARNINGS AND PROFITS, ON THE THEORY THAT ALL OF NEVADA
CALIFORNIA'S ACCUMULATED EARNINGS AND PROFITS, PLUS THE ACCUMULATED
EARNINGS AND PROFITS OF THE SUBSIDIARY THAT HAD A SURPLUS, WERE ERASED
BY THE AGGREGATE DEFICITS OF THE OTHER FOUR SUBSIDIARIES.  FN4  8 T.C.
190.  THE COURT OF APPEALS AFFIRMED BY A DIVIDED COURT, 167 F.2D 117. 
WE BROUGHT THE CASE HERE ON A WRIT OF CERTIORARI, 335 U.S. 807, BECAUSE
OF ITS IMPORTANCE IN THE ADMINISTRATION OF THE REVENUE LAWS, AND
BECAUSE OF AN ALLEGED CONFLICT OF THE DECISION BELOW WITH THAT OF THE
COURT OF APPEALS FOR THE NINTH CIRCUIT IN CRANSON V. UNITED STATES, 146
F.2D 871. 

COMMISSIONER V. SANSOME, 60 F.2D 931, AROSE THUS:  A CORPORATION SOLD
OUT ALL ITS ASSETS TO B CORPORATION, BOTH ORGANIZED UNDER THE LAWS OF
NEW JERSEY.  B CORPORATION ASSUMED ALL LIABILITIES AND ISSUED ITS STOCK
TO THE STOCKHOLDERS OF A CORPORATION, WITHOUT CHANGE IN THE PROPORTIONS
OF THEIR HOLDINGS.  THE ONLY CHANGE WAS THAT THE CHARTER OF B
CORPORATION GAVE IT SLIGHTLY BROADER POWERS.  AT THE TIME OF THE
REORGANIZATION, A CORPORATION HAD ON ITS BOOKS A LARGE SURPLUS AND
UNDIVIDED PROFITS.  THE NEW CORPORATION MADE NO PROFIT AND THE COMPANY
SOON DISSOLVED.  THE LIQUIDATING DISTRIBUTIONS IN 1923, THE YEAR WHEN
THE DISSOLUTION WAS BEGUN, DID NOT EXHAUST THE AMOUNT OF ACCUMULATED
PROFITS OF THE PREDECESSOR CORPORATION, AND THE COMMISSIONER CONTENDED
THAT THOSE DISTRIBUTIONS WERE TAXABLE TO THE STOCKHOLDERS AS DIVIDENDS
AND NOT, AS CLAIMED BY THEM, AS A RETURN OF CAPITAL.  THE COURT OF
APPEALS FOR THE SECOND CIRCUIT AGREED WITH THE COMMISSIONER, AND HELD
THAT SINCE THE REORGANIZATION WAS NONTAXABLE UNDER SEC. 202(C)(2) OF
THE REVENUE ACT OF 1921, THE ACCUMULATED EARNINGS AND PROFITS OF THE
TRANSFEROR RETAINED THEIR CHARACTER AS SUCH FOR TAX PURPOSES IN THE
HANDS OF THE TRANSFEREE AND WERE CONSEQUENTLY TAXABLE ON DISTRIBUTION
AS ORDINARY INCOME UNDER SEC. 201 OF THE SAME ACT.  FN5  THE VIEW OF
THE COURT WAS THUS EXPRESSED BY JUDGE LEARNED HAND:  "HENCE WE HOLD
THAT A CORPORATE REORGANIZATION WHICH RESULTS IN NO 'GAIN OR LOSS'
UNDER SECTION 202(C)(2)(42 STAT. 230) DOES NOT TOLL THE COMPANY'S LIFE
AS CONTINUED VENTURE UNDER SECTION 201, AND THAT WHAT WERE 'EARNINGS OR
PROFITS' OF THE ORIGINAL, OR SUBSIDIARY, COMPANY REMAIN, FOR PURPOSES
OF DISTRIBUTION, 'EARNINGS OR PROFITS' OF THE SUCCESSOR, OR PARENT, IN
LIQUIDATION."  60 F.2D 931, 933.  THE RULE HAS BEEN CONSISTENTLY
FOLLOWED JUDICIALLY  FN6  AND HAS RECEIVED EXPLICIT CONGRESSIONAL
APPROVAL.  FN7 

THE RATIONALE OF THE SANSOME DECISION AS A "CONTINUED VENTURE"
DOCTRINE HAS BEEN OFTEN REPEATED IN THE CASES, AND IN SOME OF THEM THE
FACT THAT THE SUCCESSOR CORPORATION HAS DIFFERED FROM THE PREDECESSOR
MERELY IN IDENTITY OR FORM  FN8  HAS LENT IT PLAUSIBILITY.  OTHER
CASES, HOWEVER, DEMONSTRATE THAT THE "CONTINUED VENTURE" ANALYSIS DOES
NOT ACCURATELY INDICATE THE BASIS OF THE DECISIONS.  THE RULE THAT
EARNINGS AND PROFITS OF A CORPORATION DO NOT LOSE THEIR CHARACTER AS
SUCH BY VIRTUE OF A TAX-FREE REORGANIZATION OR LIQUIDATION HAS BEEN
APPLIED WHERE MORE THAN ONE CORPORATION HAS BEEN ABSORBED OR
LIQUIDATED,  FN9  WHERE THERE HAS BEEN A "SPLIT-OFF" REORGANIZATION,
FN10  AND WHERE THE REORGANIZATION HAS RESULTED IN SUBSTANTIAL CHANGES
IN THE PROPRIETARY INTERESTS.  FN11 

IN COMMISSIONER V. MUNTER, 331 U.S. 210, THIS COURT REVERSED A
DECISION OF THE COURT OF APPEALS FOR THE THIRD CIRCUIT WHICH HAD HELD
IN FAVOR OF THE TAXPAYER ON THE GROUND THAT THE OWNERSHIP OF THE
SUCCESSOR CORPORATION WAS SO DIFFERENT FROM THAT OF THE TWO
PREDECESSORS THAT THERE WAS NOT SUFFICIENT CONTINUITY OF THE CORPORATE
ENTITY TO APPLY THE SANSOME DOCTRINE.  THE OPINION OF THE COURT STATED
OUR UNANIMOUS VIEW OF THE BASIS OF THE RULE:  "A BASIC PRINCIPLE OF THE
INCOME TAX LAWS HAS LONG BEEN THAT CORPORATE EARNINGS AND PROFITS
SHOULD BE TAXED WHEN THEY ARE DISTRIBUTED TO THE STOCKHOLDERS WHO OWN
THE DISTRIBUTING CORPORATION.  ...  THUS UNLESS THOSE EARNINGS AND
PROFITS ACCUMULATED BY THE PREDECESSOR CORPORATIONS AND UNDISTRIBUTED
IN THIS REORGANIZATION ARE DEEMED TO HAVE BEEN ACQUIRED BY THE
SUCCESSOR CORPORATION AND TAXABLE UPON DISTRIBUTION BY IT, THEY WOULD
ESCAPE THE TAXATION WHICH CONGRESS INTENDED.  ...  THE CONGRESSIONAL
PURPOSE TO TAX ALL STOCKHOLDERS WHO RECEIVE DISTRIBUTIONS OF CORPORATE
EARNINGS AND PROFITS CANNOT BE FRUSTRATED BY ANY REORGANIZATION WHICH
LEAVES EARNINGS AND PROFITS UNDISTRIBUTED IN WHOLE OR IN PART."  331
U.S. AT 214, 215.  SEE MURCHISON'S ESTATE V. COMMISSIONER, 76 F.2D 641,
642; PUTNAM V. UNITED STATES, 149 F.2D 721, 726; SAMUEL L. SLOVER, 6
T.C. 884, 886.  WE CONCLUDE FROM THE CASES THAT THE SANSOME RULE IS
GROUNDED NOT ON A THEORY OF CONTINUITY OF THE CORPORATE ENTERPRISE BUT
ON THE NECESSITY TO PREVENT ESCAPE OF EARNINGS AND PROFITS FROM
TAXATION. 

THE DECISION OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN HARTER
V. HELVERING, 79 F.2D 12, IS NOT INCONSISTENT WITH THIS VIEW.  IN THAT
CASE THE SITUATION WAS AS FOLLOWS:  A CORPORATION AND B CORPORATION,
EACH OF WHICH HAD ACCUMULATED EARNINGS AND PROFITS, MERGED TO FORM C
CORPORATION.  BY THE OPERATION OF THE SANSOME RULE, THE EARNINGS AND
PROFITS RETAINED THEIR CHARACTER AS SUCH IN THE HANDS OF C. SOME TIME
LATER, D CORPORATION ACQUIRED ALL THE STOCK OF C, AND THEREAFTER
LIQUIDATED IT IN A TRANSACTION IN WHICH NO GAIN OR LOSS WAS
RECOGNIZED.  AT THE TIME OF THE LIQUIDATION OF C CORPORATION, D
CORPORATION, THE PARENT, HAD A DEFICIT IN EARNINGS AND PROFITS.  THE
COURT HELD, IN DETERMINING THE AMOUNT OF EARNINGS AND PROFITS AVAILABLE
TO D CORPORATION AFTER THE LIQUIDATION FOR DISTRIBUTION AS DIVIDENDS,
THAT ITS DEFICIT SHOULD BE DEDUCTED FROM THE ACCUMULATED EARNINGS AND
PROFITS ACQUIRED FROM ITS SUBSIDIARY.  IT IS VIGOROUSLY CONTENDED THAT
THE LOGIC OF THE HARTER CASE COMPELS THE ALLOWANCE OF A DEDUCTION OF
THE DEFICITS OF THE SUBSIDIARIES FROM THE ACCUMULATED EARNINGS AND
PROFITS OF THE PARENT.  WE BELIEVE THIS VIEW TO BE THE PRODUCT OF
INADEQUATE ANALYSIS.  FN12  THE DIFFERENCE BETWEEN THE HARTER SITUATION
AND THE PROBLEM BEFORE US MAY PERHAPS BE CLARIFIED BY COMPARING THEM
TAXWISE IF NEITHER LIQUIDATION HAD OCCURRED.  BRIEFLY STATED, IN THE
CASE OF A DISTRIBUTION TO A CORPORATION WITH A DEFICIT FROM EITHER
CURRENT OR PRIOR LOSSES, THE CORPORATION RECEIVING THE DISTRIBUTION HAS
NO TAXABLE INCOME OR EARNINGS OR PROFITS AVAILABLE FOR CURRENT
DISTRIBUTION UNTIL CURRENT INCOME EXCEEDS CURRENT LOSSES, AND NO
ACCUMULATED EARNINGS OR PROFITS UNTIL ITS ACTUAL DEFICIT FROM PRIOR
LOSSES IS ERASED.  SEE 1 MERTENS, LAW OF FEDERAL INCOME TAXATION (1942)
SEC. 9.30, AND CASES CITED THEREIN N. 44 ET SEQ. IN THE INSTANT
SITUATION, HOWEVER, THE PARENT DID HAVE ACCUMULATED EARNINGS AND
PROFITS AVAILABLE FOR DISTRIBUTION AS DIVIDENDS, ABSENT THE
LIQUIDATION.  CONGRESSIONAL INTENT TO TAX SUCH EARNINGS AND PROFITS ON
THEIR DISTRIBUTION CANNOT BE PREVENTED BY THE FACT OF AN INTERVENING
REORGANIZATION OR LIQUIDATION.  FN13 

THE OPERATION OF THE SANSOME RULE ON THE TAXATION OF CORPORATE
DISTRIBUTIONS IS BROUGHT INTO HIGH RELIEF BY CONSIDERATION OF THE
ECONOMIC RELATION BETWEEN A PARENT CORPORATION AND ITS SUBSIDIARY. 
CONGRESS REQUIRES THAT EARNINGS AND PROFITS, CURRENT OR ACCUMULATED, BE
TAXED TO THE RECIPIENTS THEREOF AS DIVIDENDS ON THEIR DISTRIBUTION. 
FN14  IF A SUBSIDIARY HAS A SURPLUS IN EARNINGS AND PROFITS, THE PARENT
HAS A CHOICE OF TWO METHODS BY WHICH IT MAY "REALIZE" THIS SURPLUS.  IT
MAY CAUSE THE SUBSIDIARY TO DECLARE A DIVIDEND, OR IT MAY LIQUIDATE ITS
INTEREST OR PART OF ITS INTEREST IN THE SUBSIDIARY.  IN THE FORMER
CASE, THE DISTRIBUTION WOULD OF COURSE BE TAXABLE AS ORDINARY INCOME TO
THE PARENT INSOFAR AS THAT DISTRIBUTION, PLUS THE PARENT'S OTHER
INCOME, REPRESENTED NET INCOME TO IT.  IF THE PARENT USES THE SECOND
METHOD, TWO ALTERNATIVES AGAIN ARE AVAILABLE:  THE LIQUIDATION MAY TAKE
THE FORM OF A SALE OUTRIGHT, OR MAY BE PERFORMED WITHIN THE FRAMEWORK
OF THE REORGANIZATION SECTIONS OF THE INTERNAL REVENUE CODE OR ITS
PREDECESSOR ACTS.  IF THE FORMER, GAIN IS OF COURSE REALIZED, AND IS
ALSO RECOGNIZED FOR TAX PURPOSES.  WE NOTE IN PASSING, IN THIS
CONNECTION, THAT SUCH GAIN WILL CORRESPOND, IF AT ALL, ONLY BY
COINCIDENCE WITH THE AMOUNT OF EARNINGS AND PROFITS OF THE SUBSIDIARY. 
IF THE LATTER, CONGRESS HAS DETERMINED THAT THE GAIN SHALL NOT BE
RECOGNIZED AT THAT TIME, BUT THAT SUCH RECOGNITION SHALL BE DEFERRED. 
IF THE SUBSIDIARY HAS A DEFICIT IN EARNINGS AND PROFITS, THE DEFICIT
MAY BE "REALIZED" BY THE PARENT ONLY BY LIQUIDATION, AND THE SAME TWO
ALTERNATIVES ARE PRESENT AS WHEN THE SUBSIDIARY HAS A SURPLUS:  SALE,
AND REORGANIZATION WITHIN SEC. 112.  AGAIN, IN THE FORMER CASE, LOSS IS
REALIZED AND ALSO RECOGNIZED.  AND IN THE CASE OF A REORGANIZATION OR
LIQUIDATION IN THE FRAMEWORK OF THE CODE, THE RECOGNITION OF LOSS IS
DEFERRED BY CONGRESSIONAL MANDATE TO A LATER TIME. 

IF THE ASSETS OF THE PARENT AND SUBSIDIARY ARE COMBINED VIA A TAX
FREE REORGANIZATION OR LIQUIDATION, THE EFFECT OF THE SANSOME RULE IS
SIMPLY THIS:  A DISTRIBUTION OF ASSETS THAT WOULD HAVE BEEN TAXABLE AS
DIVIDENDS ABSENT THE REORGANIZATION OR LIQUIDATION DOES NOT LOSE THAT
CHARACTER BY VIRTUE OF THE TAX-FREE TRANSACTION.  RESPONDENT'S
CONTENTION THAT THE LOGIC OF THE SANSOME RULE REQUIRES SUBTRACTING THE
DEFICIT OF THE SUBSIDIARY FROM THE EARNINGS AND PROFITS OF THE PARENT
AS A COROLLARY OF CARRYING OVER THE EARNINGS AND PROFITS OF THE
SUBSIDIARY HAS A SUPERFICIAL PLAUSIBILITY; BUT THE PLAUSIBILITY
DISAPPEARS WHEN IT IS NOTED THAT THE TAXPAYER WOULD THUS OBTAIN AN
ADVANTAGE TAXWISE THAT WOULD NOT BE AVAILABLE ABSENT THE LIQUIDATION,
SINCE THERE IS NO WAY TO "DECLARE" A DEFICIT, AND THUS NO METHOD OF
LOSS REALIZATION OPEN TO THE PARENT PARALLEL TO A DECLARATION OF
DIVIDENDS AS A MODE OF REALIZING THE PROFITS OF A SUBSIDIARY.    IT IS
URGED UPON US THAT THE DEFICITS OF THE SUBSIDIARIES SHOULD BE
SUBTRACTED FROM THE EARNINGS AND PROFITS OF THE PARENT IN ORDER TO MAKE
THE TAX CONSEQUENCES OF THE LIQUIDATION CORRESPOND WITH CORPORATE
ACCOUNTING PRACTICE.  THE ANSWER IS BRIEF.  THE SANSOME RULE ITSELF, AS
APPLIED TO EARNINGS AND PROFITS, HAS NEVER BEEN THOUGHT TO BE
CONTROLLED BY ORDINARY CORPORATE ACCOUNTING CONCEPTS; ITS UNIFORM
EFFECT IS TO TREAT FOR TAX PURPOSES AS EARNINGS OR PROFITS ASSETS WHICH
ARE PROPERLY CONSIDERED CAPITAL FOR MANY IF NOT MOST CORPORATE
PURPOSES, AND IT HAS LONG BEEN A COMMONPLACE OF TAX LAW THAT SIMILAR
DIVERGENCES OFTEN OCCUR.  SEE COMMISSIONER V. WHEELER, 324 U.S. 542,
546; PUTNAM V. UNITED STATES, 149 F.2D 721, 726; 1 MERTENS, OP. CIT.
SEC. 9.33; RUDICK, OP. CIT. 878-906.  FN15 

CONGRESS HAS EXPRESSED ITS PURPOSE TO TAX ALL STOCKHOLDERS WHO
RECEIVE DISTRIBUTIONS OF EARNINGS AND PROFITS.  IN ORDER TO FACILITATE
SIMPLIFICATION OF CORPORATE FINANCIAL STRUCTURES, IT HAS FURTHER
PROVIDED THAT CERTAIN INTERCORPORATE TRANSACTIONS SHALL BE FREE OF
IMMEDIATE TAX CONSEQUENCES TO THE CORPORATIONS.  THERE HAS BEEN
JUDICIALLY SUPERIMPOSED BY THE SANSOME RULE, WITH THE SUBSEQUENT
EXPLICIT RATIFICATION OF CONGRESS, THE DOCTRINE THAT TAX-FREE
REORGANIZATIONS SHALL NOT DISTURB THE STATUS OF EARNINGS AND PROFITS
OTHERWISE AVAILABLE FOR DISTRIBUTION.  NEVADA-CALIFORNIA AT THE TIME OF
THE 1937 DISTRIBUTION TO RESPONDENT HAD SUCH EARNINGS AND PROFITS. 
SINCE WE BELIEVE THAT TO ALLOW DEDUCTION FROM THESE EARNINGS OF THE
DEFICITS OF ITS SUBSIDIARIES WOULD BE IN EFFECT TO RECOGNIZE LOSSES THE
TAX EFFECTS OF WHICH CONGRESS HAS EXPLICITLY PROVIDED SHOULD BE
DEFERRED, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.  REVERSED. 

FN1  "SEC.  112.  RECOGNITION OF GAIN OR LOSS. 

"(A)  GENERAL RULE.  - UPON THE SALE OR EXCHANGE OF PROPERTY THE
ENTIRE AMOUNT OF THE GAIN OR LOSS, DETERMINED UNDER SECTION 111, SHALL
BE RECOGNIZED, EXCEPT AS HEREINAFTER PROVIDED IN THIS SECTION. 

"(B)  EXCHANGES SOLELY IN KIND.  - 

     .         .         .         .    . 

"(6)  PROPERTY RECEIVED BY CORPORATION ON COMPLETE LIQUIDATION OF
ANOTHER.  - NO GAIN OR LOSS SHALL BE RECOGNIZED UPON THE RECEIPT BY A
CORPORATION OF PROPERTY DISTRIBUTED IN COMPLETE LIQUIDATION OF ANOTHER
CORPORATION.  ..."  49 STAT. 1648, 1678-79. 

FN2  IT DOES NOT APPEAR IN WHAT YEARS OCCURRED THE SUBSIDIARIES'
LOSSES WHICH RESULTED IN THEIR DEFICITS, OR TO WHAT EXTENT THEY WERE
SET OFF AGAINST THE NET INCOME OF THE PARENT IN CONSOLIDATED RETURN
YEARS.  TO THE EXTENT THAT SUCH SET-OFFS DID EXIST, THE BASIS OF THE
SUBSIDIARIES' STOCK TO NEVADA-CALIFORNIA HAD BEEN REDUCED AND THE
LOSSES REALIZED BY THE PARENT AND AVAILED OF FOR TAX PURPOSES PRIOR TO
THE LIQUIDATION.  U.S. TREAS. REG. 94, ART. 113(B)-1, PROMULGATED UNDER
THE REVENUE ACT OF 1936. 

FN3  "SEC.  115.  DISTRIBUTIONS BY CORPORATIONS. 

"(A)  DEFINITION OF DIVIDEND.  - THE TERM 'DIVIDEND' WHEN USED IN
THIS TITLE (EXCEPT IN SECTION 203(A)(3) AND SECTION 207(C)(1), RELATING
TO INSURANCE COMPANIES) MEANS ANY DISTRIBUTION MADE BY A CORPORATION TO
ITS SHAREHOLDERS, WHETHER IN MONEY OR IN OTHER PROPERTY, (1) OUT OF ITS
EARNINGS OR PROFITS ACCUMULATED AFTER FEBRUARY 28, 1913, OR (2) OUT OF
THE EARNINGS OR PROFITS OF THE TAXABLE YEAR (COMPUTED AS OF THE CLOSE
OF THE TAXABLE YEAR WITHOUT DIMINUTION BY REASON OF ANY DISTRIBUTIONS
MADE DURING THE TAXABLE YEAR), WITHOUT REGARD TO THE AMOUNT OF THE
EARNINGS AND PROFITS AT THE TIME THE DISTRIBUTION WAS MADE. 

"(B)  SOURCE OF DISTRIBUTIONS.  - FOR THE PURPOSES OF THIS ACT EVERY
DISTRIBUTION IS MADE OUT OF EARNINGS OR PROFITS TO THE EXTENT THEREOF,
AND FROM THE MOST RECENTLY ACCUMULATED EARNINGS OR PROFITS.  ANY
EARNINGS OR PROFITS ACCUMULATED, OR INCREASE IN VALUE OF PROPERTY
ACCRUED, BEFORE MARCH 1, 1913, MAY BE DISTRIBUTED EXEMPT FROM TAX,
AFTER THE EARNINGS AND PROFITS ACCUMULATED AFTER FEBRUARY 28, 1913,
HAVE BEEN DISTRIBUTED, BUT ANY SUCH TAX-FREE DISTRIBUTION SHALL BE
APPLIED AGAINST AND REDUCE THE ADJUSTED BASIS OF THE STOCK PROVIDED IN

FN4  RESPONDENT AGREES THAT THE EARNINGS AND PROFITS OF THE
SUBSIDIARY WITH A SURPLUS BECOME, BY VIRTUE OF THE SANSOME RULE,
EARNINGS AND PROFITS OF THE PARENT, WHATEVER THE ULTIMATE TREATMENT OF
THE DEFICITS OF THE OTHER SUBSIDIARIES. 

FN5  SECTION 201 OF THE 1921 ACT SPECIFIES WHAT CORPORATE
DISTRIBUTIONS ARE TAXABLE AS DIVIDENDS; SEC. 202(C)(2) PROVIDES FOR THE
NONRECOGNITION OF GAIN OR LOSS FROM CERTAIN CORPORATE REORGANIZATIONS. 

FN6  COMMISSIONER V. MUNTER, 331 U.S. 210; UNITED STATES V.
KAUFFMANN, 62 F.2D 1045; MURCHISON'S ESTATE V. COMMISSIONER, 76 F.2D
641; HARTER V. HELVERING, 79 F.2D 12; GEORDAY ENTERPRISES, LTD. V.
COMMISSIONER, 126 F.2D 384; REED DRUG CO. V. COMMISSIONER, 130 F.2D
288; ROBINETTE V. COMMISSIONER, 148 F.2D 513; PUTNAM V. UNITED STATES,
149 F.2D 721.  SEE ALSO COUDON V. TAIT, 61 F.2D 904, WHICH WAS DECIDED
A FEW MONTHS AFTER SANSOME AND REACHED THE SAME RESULT INDEPENDENTLY. 

FN7  THE SENATE FINANCE COMMITTEE REPORT ON SEC. 115(H) OF THE
REVENUE ACT OF 1936, S. REP. NO. 2156, 74TH CONG., 2D SESS., P. 19(1939
1 CUM. BULL.  (PART 2) 678, 690), RECOGNIZED THE RULE OF THE SANSOME
CASE, AND SAID THAT THE AMENDMENT MADE BY THAT ACT INTENDED NO CHANGE
IN EXISTING LAW, BUT WAS ADDED ONLY IN THE INTEREST OF CLARITY.  U.S.
TREAS. REG. 94, ART. 115-11, PROMULGATED UNDER THE 1936 ACT,
INCORPORATES THE SUBSTANCE OF THE REPORT.  THE REVENUE ACT OF 1938
AMENDED SEC. 115(H) ONLY BY EXTENDING ITS APPLICATION TO DISTRIBUTIONS
OF "PROPERTY OR MONEY" AS WELL AS OF "STOCK OR SECURITIES"; THE EFFECT
WAS TO MAKE SEC. 115(H) HARMONIZE WITH SEC. 112(B)(6) AND (7); AND
TREASURY REGULATIONS 101, PROMULGATED UNDER THE 1938 ACT, WAS AMENDED
TO CONFORM.  THE INTERNAL REVENUE CODE CONTAINS THE SECTION
SUBSTANTIALLY UNCHANGED. 

THE INTERNAL REVENUE CODE, TO ELABORATE THE LAW WITH REGARD TO THE
EFFECT OF TAX-FREE DISTRIBUTIONS ON EARNINGS AND PROFITS.  THE REPORTS
ACCOMPANYING THE BILL IN CONGRESS, H.R. REP. NO. 2894, 76TH CONG., 3D
SESS., P. 41(1940-2 CUM. BULL.  496, 526), AND S. REP. NO. 2114, 76TH
CONG., 3D SESS., P. 25(1940-2 CUM. BULL.  528, 546-547), BOTH RECOGNIZE
THE APPLICATION OF "THE PRINCIPLE UNDER WHICH THE EARNINGS AND PROFITS
OF THE TRANSFEROR BY REASON OF THE TRANSFER BECOME THE EARNINGS AND
PROFITS OF THE TRANSFEREE."  IBID., P. 25.  THE REPORTS DO NOT MENTION
DEFICITS. 

FN8  SEE, E.G., MURCHISON'S ESTATE V. COMMISSIONER, REED DRUG CO. V.
COMMISSIONER, UNITED STATES V. KAUFFMANN, ALL SUPRA, N. 6. 

FN9  HARTER V. HELVERING, BAKER V. COMMISSIONER, 80 F.2D 813. 

FN10  BARNES V. UNITED STATES, 22 F.SUPP.  282; ESTATE OF MCCLINTIC,
47 B.T.A. 188; STELLA K. MANDEL, 5 T.C. 684. 

FN11  COMMISSIONER V. MUNTER, SUPRA. 

FN12  SEE NOTE, THE EFFECT OF TAX-FREE REORGANIZATIONS ON SUBSEQUENT
CORPORATE DISTRIBUTIONS, 48 COL. L. REV. 281; ATLAS, THE CASE OF THE
DISAPPEARING EARNINGS AND PROFITS, IN SEVENTH ANNUAL INSTITUTE OF
FEDERAL TAXATION, 1155; CF. 1 MERTENS, LAW OF FEDERAL INCOME TAXATION
(1942) SEC. 9.58; 1 MONTGOMERY, FEDERAL TAXES - CORPORATIONS AND
PARTNERSHIPS 1948-49, 154(1948); GREEN, RECENT TRENDS UNDER THE SANSOME
RULE, IN SIXTH ANNUAL INSTITUTE ON FEDERAL TAXATION, 338; CF. RUDICK,
"DIVIDENDS" AND "EARNINGS OR PROFITS" UNDER THE INCOME TAX LAW:
CORPORATE NON-LIQUIDATING DISTRIBUTIONS, 89 U. PA. L. REV. 865, 896. 

FN13  SENIOR INVESTMENT CORP., 2 T.C. 124, DID NOT INVOLVE THE
QUESTION BEFORE US, BUT WAS CONCERNED WITH THE APPLICABILITY, FOR
PURPOSES OF COMPUTING SURTAX ON UNDISTRIBUTED PROFITS, OF SECS.
26(C)(1) AND 26(C)(3) OF THE REVENUE ACT OF 1936, THE LATTER AS AMENDED
BY SEC. 501(A)(2) OF THE REVENUE ACT OF 1942, TO THE TRANSFEROR
CORPORATION IN A TAX-FREE REORGANIZATION.  49 STAT. 1664; 56 STAT. 798,
954.  THE QUESTION OF "INHERITANCE" OF A DEFICIT WAS NOT IN ISSUE.  SEE
GREEN, SUPRA, NOTE 12, AT 341. 

FN14  THE OPERATION OF THE SANSOME RULE IS RESTRICTED, OF COURSE, TO
EARNINGS AND PROFITS WHICH ARE NOT CONSIDERED TO BE DISTRIBUTED TO ITS
OWN STOCKHOLDERS BY THE TRANSFEROR CORPORATION IN A TAX-FREE
REORGANIZATION.  COMMISSIONER V. MUNTER, 331 U.S. 210, 215-16; SAMUEL
L. SLOVER, 6 T.C. 884.  CF. U.S. TREAS. REG. 111, SEC. 29.112(B)(6)-4
AS TO THE EFFECT OF A TAX-FREE REORGANIZATION ON MINORITY STOCKHOLDERS
OF THE TRANSFEROR CORPORATION. 

FN15  ON THE MERITS, RESPONDENT'S ARGUMENT IS NOT CONVINCING.  IT
FAILS TO TAKE INTO ACCOUNT THE DIFFERENCE BETWEEN THE CONCEPT OF
SURPLUS OR DEFICIT, WHICH IS A SUMMARY OF THE OPERATIONS OF THE
CORPORATION REPORTING IT, AND THE CONCEPT OF GAIN OR LOSS, WHICH
REPORTS THE EFFECT OF THE TAX-FREE TRANSACTION ITSELF.  SO VARIOUS ARE
THE POSSIBLE PERMUTATIONS AND COMBINATIONS OF THE ECONOMIC FACTORS THAT
EQUIVALENCE OF SURPLUS OR DEFICIT IN THE ACCOUNTS OF THE SUBSIDIARY
WITH THE GAIN OR LOSS TO THE PARENT WOULD BE MERE COINCIDENCE. 
CONSIDER FOR EXAMPLE THE CASE WHERE A CORPORATION ACQUIRES ALL THE
STOCK OF ANOTHER WHICH AT THE TIME HAS A LARGE DEFICIT.  IF THE
SUBSIDIARY IS SOON LIQUIDATED, THE DEFICIT WILL STILL BE LARGE, AND THE
PARENT MAY REALIZE LITTLE OR NO LOSS ON THE LIQUIDATION.  SEE THE FIRST
TWO TEXTS CITED NOTE 12, SUPRA. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 
..END :





FOLEY BROS. V. FILARDO, 336 U.S. 281 


NO. 91.  ARGUED DECEMBER 15, 1948.  - DECIDED MARCH 7, 1949.  - 297 N.Y.
217, 78 N.E.2D 480, REVERSED. 


THE EIGHT HOUR LAW, 40 U.S.C. SEC. 324, AS AMENDED BY 40 U.S.C. SEC.
325A, WHICH PROVIDES, IN EFFECT, THAT EVERY CONTRACT TO WHICH THE
UNITED STATES IS A PARTY SHALL CONTAIN A PROVISION THAT NO LABORER OR
MECHANIC DOING ANY PART OF THE WORK CONTEMPLATED BY THE CONTRACT SHALL
BE REQUIRED OR PERMITTED TO WORK MORE THAN EIGHT HOURS IN ANY ONE DAY
UPON SUCH WORK UNLESS HE IS COMPENSATED AT THE RATE OF ONE AND ONE-HALF
TIMES THE BASIC RATE OF PAY FOR ALL WORK IN EXCESS OF EIGHT HOURS PER
DAY, IS NOT APPLICABLE TO WORK DONE UNDER A CONTRACT BETWEEN THE UNITED
STATES AND A PRIVATE CONTRACTOR ON CONSTRUCTION PROJECTS FOR THE UNITED
STATES IN IRAQ AND IRAN.  PP. 282-291. 

1.  THERE IS NOTHING IN THE LANGUAGE OF THE ACT THAT INDICATES A
CONGRESSIONAL PURPOSE TO EXTEND ITS COVERAGE BEYOND PLACES OVER WHICH
THE UNITED STATES HAS SOVEREIGNTY OR SOME MEASURE OF LEGISLATIVE
CONTROL.  VERMILYA-BROWN CO. V. CONNELL, 335 U.S. 377, DISTINGUISHED. 
PP. 285-286. 

2.  THE LEGISLATIVE HISTORY OF THE ACT REVEALS THAT CONGRESS WAS
CONCERNED WITH DOMESTIC LABOR CONDITIONS.  PP. 286-288. 

3.  ADMINISTRATIVE INTERPRETATIONS OF THE ACT TEND TO SUPPORT THE
CONCLUSIONS HERE REACHED.  PP. 288-291. 

FOLEY BROS., INC. ET AL. V. FILARDO. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK, NEW YORK COUNTY. 

IN A SUIT BY AN AMERICAN CITIZEN FOR OVERTIME PAY FOR WORK DONE IN
EXCESS OF EIGHT HOURS PER DAY FOR AN AMERICAN CONTRACTOR ON A
CONSTRUCTION PROJECT IN IRAQ AND IRAN UNDER A CONTRACT WITH THE UNITED
STATES, A TRIAL COURT OF NEW YORK GAVE JUDGMENT FOR THE PLAINTIFF.  THE
APPELLATE DIVISION REVERSED.  272 APP. DIV. 446, 71 N.Y.S.2D 592.  THE
NEW YORK COURT OF APPEALS REVERSED.  297 N.Y. 217, 78 N.E.2D 480.  THIS
COURT GRANTED CERTIORARI.  335 U.S. 808.  REVERSED, P. 291. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER THE EIGHT HOUR LAW  FN1
APPLIES TO A CONTRACT BETWEEN THE UNITED STATES AND A PRIVATE
CONTRACTOR FOR CONSTRUCTION WORK IN A FOREIGN COUNTRY. 

THIS ACT PROVIDES THAT 

"EVERY CONTRACT MADE TO WHICH THE UNITED STATES  ...  IS A PARTY  ...
SHALL CONTAIN A PROVISION THAT NO LABORER OR MECHANIC DOING ANY PART
OF THE WORK CONTEMPLATED BY THE CONTRACT, IN THE EMPLOY OF THE
CONTRACTOR OR ANY SUBCONTRACTOR  ...  SHALL BE REQUIRED OR PERMITTED TO
WORK MORE THAN EIGHT HOURS IN ANY ONE CALENDAR DAY UPON SUCH WORK; ...
" 37 STAT. 137, 40 U.S.C. SEC. 324. 

PENALTIES ARE SPECIFIED FOR VIOLATIONS.  IN 1940 THE PROHIBITION
AGAINST WORKDAYS OF LONGER THAN EIGHT HOURS WAS MODIFIED AS FOLLOWS: 

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE WAGES OF EVERY
LABORER AND MECHANIC EMPLOYED BY ANY CONTRACTOR OR SUBCONTRACTOR
ENGAGED IN THE PERFORMANCE OF ANY CONTRACT OF THE CHARACTER SPECIFIED
IN SECTIONS 324 AND 325 OF THIS TITLE, SHALL BE COMPUTED ON A BASIC DAY
RATE OF EIGHT HOURS PER DAY AND WORK IN EXCESS OF EIGHT HOURS PER DAY
SHALL BE PERMITTED UPON COMPENSATION FOR ALL HOURS WORKED IN EXCESS OF
EIGHT HOURS PER DAY AT NOT LESS THAN ONE AND ONE-HALF TIMES THE BASIC
RATE OF PAY."  54 STAT. 884, 40 U.S.C. SEC. 325A. 

IN 1941 PETITIONERS CONTRACTED ON A COST-PLUS BASIS TO BUILD CERTAIN
PUBLIC WORKS ON BEHALF OF THE UNITED STATES IN THE EAST AND NEAR EAST,
PARTICULARLY IN IRAQ AND IRAN.  PETITIONERS AGREED IN THE CONTRACT TO
"OBEY AND ABIDE BY ALL APPLICABLE LAWS, REGULATIONS, ORDINANCES, AND
OTHER RULES OF THE UNITED STATES OF AMERICA."  THE PROVISIONS OF THE
EIGHT HOUR LAW WERE NOT SPECIFICALLY INCLUDED IN THE CONTRACT.  IN 1942
PETITIONERS HIRED RESPONDENT, AN AMERICAN CITIZEN, TO WORK ON THE
CONSTRUCTION PROJECTS AS A COOK AT SIXTY DOLLARS A WEEK.  THIS CONTRACT
OF EMPLOYMENT CONTAINED NO PROVISION CONCERNING HOURS OF WORK OR
OVERTIME.  PURSUANT TO THE CONTRACT, RESPONDENT WENT TO IRAQ AND IRAN
WHERE HE FREQUENTLY WORKED MORE THAN EIGHT HOURS A DAY DURING THE YEARS
1942 AND 1943. 

UPON THE REFUSAL OF HIS REQUEST FOR OVERTIME PAY FOR WORK IN EXCESS
OF EIGHT HOURS PER DAY, HE BROUGHT SUIT AGAINST PETITIONERS IN THE
SUPREME COURT OF NEW YORK, CLAIMING THAT THE ACT ENTITLED HIM TO ONE
AND ONE-HALF TIMES THE BASIC RATE OF PAY FOR SUCH WORK.  THE COURT
DENIED PETITIONERS' MOTIONS TO DISMISS THE CASE AND FOR A DIRECTED
VERDICT, THEREBY OVERRULING THE CONTENTION THAT THE ACT DID NOT APPLY
TO CONTRACTS WHICH WERE TO BE PERFORMED IN FOREIGN COUNTRIES.  JUDGMENT
WAS ENTERED ON A JURY VERDICT FOR RESPONDENT.  THE APPELLATE DIVISION
REVERSED ON THE GROUND THAT THE EIGHT HOUR LAW AS AMENDED DID NOT
CONFER A RIGHT OF ACTION ON AN EMPLOYEE FOR OVERTIME PAY.  272 APP.
DIV. 446, 71 N.Y.S.2D 592.  CONSEQUENTLY IT DID NOT CONSIDER THE
QUESTION NOW BEFORE US.  THE NEW YORK COURT OF APPEALS REVERSED,
HOLDING THAT THE ACT APPLIED TO THIS CONTRACT.  297 N.Y. 217, 78 N.E.2D
480.  REFERRING TO THE LANGUAGE OF THE STATUTE QUOTED ABOVE, IT
CONCLUDED, "WORDS OF SUCH INCLUSIVE REACH CANNOT PROPERLY BE READ TO
EXCLUDE CONTRACTS FOR GOVERNMENT JOBS ABROAD."  WE GRANTED CERTIORARI
TO SETTLE THIS IMPORTANT QUESTION CONCERNING THE SCOPE OF THE EIGHT
HOUR LAW.  335 U.S. 808. 

SINCE THE QUESTION IS ONE OF STATUTORY INTERPRETATION, THE ACT AS IT
NOW EXISTS, 40 U.S.C. SECS. 321-326, IS OUR STARTING POINT.  IN
PERTINENT PART IT PROVIDES FOR THE LIMITATION TO EIGHT HOURS PER DAY OF
THE WORKING TIME OF LABORERS AND MECHANICS EMPLOYED BY THE GOVERNMENT
OR ANY CONTRACTOR THEREOF ON A PUBLIC WORK OF THE UNITED STATES.  SEC.
321.  THE SAME SECTION MAKES IT UNLAWFUL TO REQUIRE OR PERMIT WORK IN
EXCESS OF EIGHT HOURS PER DAY EXCEPT IN EXTRAORDINARY EMERGENCIES.  AN
INTENTIONAL VIOLATION OF THIS MANDATE IS MADE A MISDEMEANOR PUNISHABLE
BY FINE OR IMPRISONMENT OR BOTH.  SEC. 322.  THE INSERTION IN "EVERY
CONTRACT" MADE BY OR ON BEHALF OF THE UNITED STATES OF THIS RESTRICTION
ON HOURS OF WORK IS REQUIRED BY SEC. 324.  THE CONTRACTS MUST STIPULATE
A MONETARY PENALTY FOR VIOLATION, WHICH PENALTY TAKES THE FORM OF A
WITHHOLDING BY THE GOVERNMENT OF MONEYS OTHERWISE DUE THE CONTRACTOR
UNDER THE TERMS OF THE CONTRACT.  SEC. 324.  FINALLY THE RESTRICTION IS
LIFTED AS TO EMPLOYEES OF PRIVATE CONTRACTORS BY SEC. 325A, SUPRA, PP.
282-283, ON CONDITION THAT HOURS WORKED IN EXCESS OF EIGHT BE PAID FOR
AT THE OVERTIME RATE. 

THE QUESTION BEFORE US IS NOT THE POWER OF CONGRESS TO EXTEND THE
EIGHT HOUR LAW TO WORK PERFORMED IN FOREIGN COUNTRIES.  PETITIONERS
CONCEDE THAT SUCH POWER EXISTS.  CF. BLACKMER V. UNITED STATES, 284
U.S. 421; UNITED STATES V. BOWMAN, 260 U.S. 94.  THE QUESTION IS RATHER
WHETHER CONGRESS INTENDED TO MAKE THE LAW APPLICABLE TO SUCH WORK.  WE
CONCLUDE, FOR THE REASONS EXPRESSED BELOW, THAT SUCH WAS NOT THE
INTENTION OF THE LEGISLATORS. 

FIRST.  THE CANON OF CONSTRUCTION WHICH TEACHES THAT LEGISLATION OF
CONGRESS, UNLESS A CONTRARY INTENT APPEARS, IS MEANT TO APPLY ONLY
WITHIN THE TERRITORIAL JURISDICTION OF THE UNITED STATES, BLACKMER V.
UNITED STATES, SUPRA, AT 437, IS A VALID APPROACH WHEREBY UNEXPRESSED
CONGRESSIONAL INTENT MAY BE ASCERTAINED.  IT IS BASED ON THE ASSUMPTION
THAT CONGRESS IS PRIMARILY CONCERNED WITH DOMESTIC CONDITIONS.  WE FIND
NOTHING IN THE ACT ITSELF, AS AMENDED, NOR IN THE LEGISLATIVE HISTORY,
WHICH WOULD LEAD TO THE BELIEF THAT CONGRESS ENTERTAINED ANY INTENTION
OTHER THAN THE NORMAL ONE IN THIS CASE.  THE SITUATION HERE IS
DIFFERENT FROM THAT IN VERMILYA-BROWN CO. V. CONNELL, 335 U.S. 377,
WHERE WE HELD THAT BY SPECIFICALLY DECLARING THAT THE ACT COVERED
"POSSESSIONS" OF THE UNITED STATES, CONGRESS DIRECTED THAT THE FAIR
LABOR STANDARDS ACT APPLIED BEYOND THOSE AREAS OVER WHICH THE UNITED
STATES HAS SOVEREIGNTY AND WAS IN EFFECT IN ALL "POSSESSIONS."  THIS
COURT CONCLUDED THAT THE LEASEHOLD THERE INVOLVED WAS A "POSSESSION"
WITHIN THE MEANING OF THE FAIR LABOR STANDARDS ACT. 

THERE IS NO LANGUAGE IN THE EIGHT HOUR LAW, HERE IN QUESTION, THAT
GIVES ANY INDICATION OF A CONGRESSIONAL PURPOSE TO EXTEND ITS COVERAGE
BEYOND PLACES OVER WHICH THE UNITED STATES HAS SOVEREIGNTY OR HAS SOME
MEASURE OF LEGISLATIVE CONTROL.  THERE IS NOTHING BROUGHT TO OUR
ATTENTION INDICATING THAT THE UNITED STATES HAD BEEN GRANTED BY THE
RESPECTIVE SOVEREIGNTIES ANY AUTHORITY, LEGISLATIVE OR OTHERWISE, OVER
THE LABOR LAWS OR CUSTOMS OF IRAN OR IRAQ.  WE WERE ON THEIR TERRITORY
BY THEIR LEAVE, BUT WITHOUT THE TRANSFER OF ANY PROPERTY RIGHTS TO US. 

THE SCHEME OF THE ACT ITSELF BUTTRESSES OUR CONCLUSION.  NO
DISTINCTION IS DRAWN THEREIN BETWEEN LABORERS WHO ARE ALIENS AND THOSE
WHO ARE CITIZENS OF THE UNITED STATES.  UNLESS WE WERE TO READ SUCH A
DISTINCTION INTO THE STATUTE WE SHOULD BE FORCED TO CONCLUDE, UNDER
RESPONDENT'S REASONING, THAT CONGRESS INTENDED TO REGULATE THE WORKING
HOURS OF A CITIZEN OF IRAN WHO CHANCED TO BE EMPLOYED ON A PUBLIC WORK
OF THE UNITED STATES IN THAT FOREIGN LAND.  SUCH A CONCLUSION WOULD BE
LOGICALLY INESCAPABLE ALTHOUGH LABOR CONDITIONS IN IRAN WERE KNOWN TO
BE WHOLLY DISSIMILAR TO THOSE IN THE UNITED STATES AND WHOLLY BEYOND
THE CONTROL OF THIS NATION.  AN INTENTION SO TO REGULATE LABOR
CONDITIONS WHICH ARE THE PRIMARY CONCERN OF A FOREIGN COUNTRY SHOULD
NOT BE ATTRIBUTED TO CONGRESS IN THE ABSENCE OF A CLEARLY EXPRESSED
PURPOSE.  SEE ATTORNEY GENERAL STONE'S CONCLUSION TO THIS EFFECT IN 34
OP. ATTY. GEN. 257, WHERE HE STATED THAT THE LAW DID NOT APPLY TO ALIEN
LABORERS ENGAGED IN ALTERING THE AMERICAN EMBASSY IN LONDON.  THE
ABSENCE OF ANY DISTINCTION BETWEEN CITIZEN AND ALIEN LABOR INDICATES TO
US THAT THE STATUTE WAS INTENDED TO APPLY ONLY TO THOSE PLACES WHERE
THE LABOR CONDITIONS OF BOTH CITIZEN AND ALIEN EMPLOYEES ARE A PROBABLE
CONCERN OF CONGRESS.  SUCH PLACES DO NOT INCLUDE FOREIGN COUNTRIES SUCH
AS IRAQ AND IRAN.  FN2 

SECOND.  THE LEGISLATIVE HISTORY OF THE EIGHT HOUR LAW REVEALS THAT
CONCERN WITH DOMESTIC LABOR CONDITIONS LED CONGRESS TO LIMIT HOURS OF
WORK.  THE GENESIS OF THE PRESENT STATUTE WAS THE ACT OF JUNE 25, 1868,
15 STAT. 77, WHICH WAS APPARENTLY AIMED AT UNEMPLOYMENT RESULTING FROM
DECREASED CONSTRUCTION IN GOVERNMENT NAVY YARDS.  CONGRESSIONAL GLOBE,
40TH CONG., 2D SESS., PART I, P. 335.  IN 1892, WHEN THE COVERAGE OF
THIS ACT WAS EXTENDED TO EMPLOYEES OF GOVERNMENT CONTRACTORS AND WHEN
CRIMINAL PENALTIES WERE ADDED, 27 STAT. 340, THE CONSIDERATIONS BEFORE
CONGRESS WERE DOMESTIC UNEMPLOYMENT, THE INFLUX OF CHEAP FOREIGN LABOR,
AND THE NEED FOR IMPROVED LABOR CONDITIONS IN THIS COUNTRY.  H.R. REP.
NO. 1267, 52D CONG., 1ST SESS.  THE PURPOSE OF THE NEW LEGISLATION WAS
TO REMEDY THE DEFECTS IN THE ACT OF 1868.  23 CONG. REC. 5723. 

THE ACT WAS AMENDED IN 1912 TO INCLUDE "EVERY CONTRACT."  THE
INSERTION OF THE WORD "EVERY" WAS DESIGNED TO REMEDY A
MISINTERPRETATION ACCORDING TO WHICH THE ACT DID NOT APPLY TO WORK
PERFORMED ON PRIVATE PROPERTY BY GOVERNMENT CONTRACTORS.  48 CONG. REC.
381, 385, 394-95.  NOTHING IN THE LEGISLATIVE HISTORY SUPPORTS THE
CONCLUSION OF RESPONDENT AND THE COURT BELOW THAT "EVERY CONTRACT" MUST
OF NECESSITY, BY VIRTUE OF THE BROADNESS OF THE LANGUAGE, INCLUDE
CONTRACTS FOR WORK TO BE PERFORMED IN FOREIGN COUNTRIES.  FN3  A
CONTRARY INFERENCE MUST BE DRAWN, WE THINK, FROM A 1913 AMENDMENT WHICH
EXTENDED THE LAW TO COVER PERSONS EMPLOYED "TO PERFORM SERVICES SIMILAR
TO THOSE OF LABORERS AND MECHANICS IN CONNECTION WITH DREDGING OR ROCK
EXCAVATION IN ANY RIVER OR HARBOR OF THE UNITED STATES OR OF THE
DISTRICT OF COLUMBIA."  37 STAT. 726, 40 U.S.C. SEC. 321.  THIS COURT
HAD HELD THAT SUCH DREDGERS WERE NOT COVERED BY THE PHRASE "LABORERS
AND MECHANICS" IN THE PREVIOUSLY EXISTING LAW.  ELLIS V. UNITED STATES,
206 U.S. 246.  IN ITS ATTEMPT TO SECURE EQUALITY OF TREATMENT FOR
DREDGERS ON THE ONE HAND AND LABORERS AND MECHANICS ON THE OTHER,
CONGRESS WOULD HARDLY HAVE INTENDED FOR COVERAGE OVER THE LATTER CLASS
TO EXTEND TO THE FAR CORNERS OF THE GLOBE WHILE COVERAGE OVER THE
FORMER WAS LIMITED TO WORK PERFORMED IN RIVERS OR HARBORS "OF THE
UNITED STATES OR OF THE DISTRICT OF COLUMBIA." 

THE 1940 AMENDMENT WHICH PERMITTED WORK IN EXCESS OF EIGHT HOURS PER
DAY UPON PAYMENT OF OVERTIME, 54 STAT. 884, PASSED WITHOUT ANY
DISCUSSION INDICATIVE OF GEOGRAPHICAL SCOPE.  86 CONG. REC. 11216
11217. 

THIRD.  THE ADMINISTRATIVE INTERPRETATIONS OF THE EIGHT HOUR LAW IN
ITS VARIOUS PHASES OF DEVELOPMENT AFFORD NO TOUCHSTONE BY WHICH ITS
GEOGRAPHIC SCOPE CAN BE DETERMINED.  EXECUTIVE ORDER NO. 8623 OF
DECEMBER 31, 1940, 3 C.F.R. CUM. SUPP. 850, ISSUED PURSUANT TO SEC. 326
OF THE ACT, SUSPENDED THE LAW AS TO LABORERS AND MECHANICS EMPLOYED
DIRECTLY BY THE GOVERNMENT AT ATLANTIC BASES LEASED FROM GREAT
BRITAIN.  SUCH A SUSPENSION INDICATED, TO BE SURE, A CONCLUSION ON THE
PART OF THE PRESIDENT THAT THE STATUTE APPLIED, OR MIGHT APPLY, TO
THESE BASES.  SUCH ACTION, HOWEVER, MAY WELL HAVE BEEN PREDICATED ON
THE PREMISE THAT THE LEASES WITH THE PROVISIONS DISCUSSED IN OUR
VERMILYA-BROWN DECISION WERE SUFFICIENTLY SUBJECT TO OUR CONTROL SO
THAT THE EIGHT HOUR LAW WOULD APPLY TO THEM.  THOUGH NUMEROUS EXECUTIVE
ORDERS HAVE BEEN ISSUED WHICH SUSPEND THE OPERATION OF THE ACT IN THE
UNITED STATES, ALASKA, HAWAII, MIDWAY ISLAND, WAKE ISLAND, ETC., WE
HAVE NOT BEEN ABLE TO FIND, NOR HAS OUR ATTENTION BEEN DIRECTED, TO ANY
ORDERS PURPORTING TO SUSPEND ITS OPERATION IN COUNTRIES NOT SUBJECT TO
OUR LEGISLATIVE CONTROL.  FN4  THE ORDER DESERVES NO WEIGHT AS AN
ADMINISTRATIVE DETERMINATION OF THE ACT'S APPLICABILITY TO LOCALITIES
UNQUESTIONABLY AND COMPLETELY BEYOND THE DIRECT LEGISLATIVE COMPETENCE
OF THE UNITED STATES. 

IT IS TRUE THAT IN 1905 ATTORNEY GENERAL MOODY, IN A LETTER TO THE
SECRETARY OF WAR, EXPRESSED THE OPINION THAT THE EIGHT HOUR LAW APPLIED
TO PUBLIC WORKS TO BE CONSTRUCTED IN THE CANAL ZONE.  25 OP. ATTY. GEN.
441.  FOR THE PURPOSE OF HIS OPINION HE TREATED THE CANAL ZONE AS
FOREIGN TERRITORY.  ID., AT 444.  NO DISTINCTION WAS DRAWN BETWEEN
CITIZEN AND ALIEN LABORERS.  IF WE ACCEPT THE ATTORNEY GENERAL'S
ASSUMPTION AS TO THE STATUS OF THE CANAL ZONE,  FN5  HIS OPINION IS IN
LINE WITH RESPONDENT'S CONTENTION THAT THE LAW IS APPLICABLE TO WORK
PERFORMED IN FOREIGN COUNTRIES.  THE OPINION, HOWEVER, PROVES TOO
MUCH.  ALTHOUGH ATTORNEY GENERAL MOODY DENIED THAT INCONGRUOUS RESULTS
WOULD FLOW FROM HIS INTERPRETATION, IT WOULD BE ANOMALOUS, AS WE HAVE
SAID, FOR AN ACT OF CONGRESS TO REGULATE THE HOURS OF A CITIZEN OF IRAN
AT WORK ON A GOVERNMENT PROJECT THERE.  ATTORNEY GENERAL STONE SO
INDICATED IN 1924 WHEN HE ADVISED THE STATE DEPARTMENT THAT THE EIGHT
HOUR LAW DID NOT APPLY TO ENGLISH WORKERS ENGAGED IN ALTERING THE
AMERICAN EMBASSY IN LONDON.  34 OP. ATTY. GEN. 257.  SINCE THE STATUTE
CONTAINS NO DISTINCTION BETWEEN LABORERS BASED ON CITIZENSHIP, ATTORNEY
GENERAL STONE'S REASONING THAT ALIENS ARE NOT COVERED POINTS TO THE
CONCLUSION THAT THE STATUTE DOES NOT APPLY TO CONTRACTS WHICH ARE TO BE
PERFORMED IN FOREIGN COUNTRIES.  THE COMPTROLLER GENERAL HAS EXPRESSED
AGREEMENT WITH THIS CONCLUSION BY STATING THAT "THE EIGHT-HOUR LAW OF
JUNE 19, 1912, WAS NOT INTENDED TO AND DOES NOT APPLY TO CONTRACTS
NECESSARILY ENTERED INTO ON BEHALF OF THE UNITED STATES IN FOREIGN
COUNTRIES WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF FOREIGN
LABORERS OR MECHANICS IN THEIR PERFORMANCE."  19 COMP. GEN. 516, 518. 
FN6 

ALTHOUGH THE STATUTE EXPRESSLY REQUIRES THE INCLUSION IN EVERY
GOVERNMENT PUBLIC-WORKS CONTRACT OF THE EIGHT-HOUR PROVISION, THE
SECRETARY OF THE TREASURY HAS APPROVED A STANDARD FORM FOR CONSTRUCTION
CONTRACTS WHICH CONTAINS EIGHT-HOUR PROVISIONS BUT WHICH PROVIDES THAT
THE USE OF THE FORM WILL NOT BE REQUIRED IN FOREIGN COUNTRIES.  U.S.
STANDARD FORM NO. 23, 41 U.S.C. APP. SEC. 12.23, PP. 4520, 4522.  THE
INCLUSION OF SUCH PROVISIONS IS ALSO REQUIRED BY WAR DEPARTMENT
PROCUREMENT REGULATION NO. 3, $* 346, IN "ALL CONTRACTS SUBJECT TO THE
PROVISIONS OF THE EIGHT HOUR LAW."  YET NEITHER THE INSTANT CONTRACT
NOR OTHERS COVERING OFF-CONTINENT OPERATIONS CONTAIN THE EIGHT HOUR LAW
CLAUSE.  FN7  SIMILARLY THE DEPARTMENT OF STATE "DOES NOT CONSIDER IT
LEGALLY NECESSARY TO INCLUDE PROVISIONS OF THE EIGHT HOUR LAW IN
CONTRACTS TO BE PERFORMED IN FOREIGN COUNTRIES."  LETTER OF NOVEMBER 8,
1948, SIGNED BY THE ACTING LEGAL ADVISER "FOR THE ACTING SECRETARY OF
STATE," TO THE ATTORNEY GENERAL. 

WE CONCLUDE THAT ADMINISTRATIVE INTERPRETATIONS OF THE ACT, ALTHOUGH
NOT SPECIFICALLY DIRECTED AT THE PRECISE PROBLEM BEFORE US, TEND TO
SUPPORT PETITIONERS' CONTENTION AS TO ITS RESTRICTED GEOGRAPHICAL
SCOPE. 

SINCE WE DECIDE THAT THE EIGHT HOUR LAW IS INAPPLICABLE TO A CONTRACT
FOR THE CONSTRUCTION OF PUBLIC WORKS IN A FOREIGN COUNTRY OVER WHICH
THE UNITED STATES HAS NO DIRECT LEGISLATIVE CONTROL, IT IS UNNECESSARY
TO DECIDE WHETHER THE LAW, EITHER DIRECTLY OR VIA THE THIRD PARTY
BENEFICIARY CONTRACT ROUTE, GIVES AN EMPLOYEE WHO IS COVERED BY IT A
CAUSE OF ACTION AGAINST HIS EMPLOYER FOR OVERTIME WAGES.  REVERSED. 

FN1  27 STAT. 340, AS AMENDED, 40 U.S.C. SECS. 321-326. 

FN2  SINCE IT IS UNNECESSARY FOR THIS DECISION, WE DO NOT REACH A
CONCLUSION AS TO THE PRECISE GEOGRAPHIC COVERAGE OF THE EIGHT HOUR
LAW. 

FN3  "  ...  WORDS HAVING UNIVERSAL SCOPE, SUCH AS 'EVERY CONTRACT IN
RESTRAINT OF TRADE,' 'EVERY PERSON WHO SHALL MONOPOLIZE,' ETC., WILL BE
TAKEN AS A MATTER OF COURSE TO MEAN ONLY EVERY ONE SUBJECT TO SUCH
LEGISLATION, NOT ALL THAT THE LEGISLATOR SUBSEQUENTLY MAY BE ABLE TO
CATCH."  AMERICAN BANANA CO. V. UNITED FRUIT CO., 213 U.S. 347, 357. 

FN4  SEE, HOWEVER, EXECUTIVE ORDERS 9251, 3 C.F.R. CUM. SUPP. 1216,
AND 9898, 3 C.F.R. 1947 SUPP. 172, IN WHICH THE GEOGRAPHIC COVERAGE OF
THE SUSPENSIONS IS NOT SPECIFIED. 

FN5  SEE, HOWEVER, THE ISTHMIAN CANAL CONVENTION, PROCLAIMED ON
FEBRUARY 26, 1904, 33 STAT. 2234, WHEREBY THE UNITED STATES HAD BEEN
GRANTED ALL THE RIGHTS, POWER AND AUTHORITY OF A SOVEREIGN IN THE
ZONE. 

FN6  SEE ALSO 29 OP. ATTY. GEN. 488, 492 ET SEQ. 

FN7  ILLUSTRATIVE CONTRACTS FROM WHICH THE CLAUSE IS OMITTED ARE:  W
1098 ENG - 1525, JUNE 8, 1942(LABRADOR AND BAFFIN ISLAND); W 1098 ENG -
1375, JUNE 3, 1942(CUBA); W 1098 ENG - 1350, APRIL 24, 1942(BAHAMAS); W
1098 ENG - 108, NOVEMBER 10, 1941(NORTH AFRICA AND PALESTINE); W 1098
ENG - 2, AUGUST 2, 1941(GREENLAND); W 958 ENG - 54, FEBRUARY 8,
1941(NEWFOUNDLAND); W 958 ENG - 50, FEBRUARY 4, 1941(BERMUDA). 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE JACKSON JOINS,
CONCURRING. 

BECAUSE THE DECISION IN VERMILYA-BROWN CO. V. CONNELL, 335 U.S. 377,
WAS ONE OF STATUTORY INTERPRETATION, I WOULD FEEL BOUND BY IT WERE IT
NOT STILL OPEN BECAUSE RENDERED AT THIS TERM.  IF I FELT BOUND BY IT, I
WOULD BE OBLIGED TO DISSENT IN THIS CASE. 

WE ARE HERE CONFRONTED BY A STATUTE WHICH IN TERMS COVERS "EVERY
CONTRACT MADE TO WHICH THE UNITED STATES  ...  IS A PARTY."  37 STAT.
137, 40 U.S.C. SEC. 324.  YET THE COURT CONSTRUES IT AS INAPPLICABLE
EVEN TO THE WORK OF A CITIZEN OF THE UNITED STATES UNDER A CONTRACT
BETWEEN THE UNITED STATES AND A CORPORATION DOMICILED IN THE UNITED
STATES BECAUSE "AN INTENTION SO TO REGULATE LABOR CONDITIONS WHICH ARE
THE PRIMARY CONCERN OF A FOREIGN COUNTRY SHOULD NOT BE ATTRIBUTED TO
CONGRESS IN THE ABSENCE OF A CLEARLY EXPRESSED PURPOSE."  FOR THIS
CONCLUSION RELIANCE IS PUT UPON AN OPINION OF ATTORNEY GENERAL STONE
WHICH REFUSED TO INTERPRET THE STATUTE AS APPLYING TO WORK DONE UPON
THE AMERICAN EMBASSY AT LONDON ON THE GROUND THAT "THE ENFORCEMENT OF
THE STATUTORY PROVISION WOULD DISTURB THE AGREEMENTS ENTERED INTO
BETWEEN CONTRACTORS AND LABORERS AND MECHANICS IN A FOREIGN COUNTRY." 
34 OP. ATTY. GEN. 257, 260.  SUPPORT IS ALSO FOUND IN AN OPINION OF THE
COMPTROLLER GENERAL WHICH REACHES A SIMILAR CONCLUSION ON THE BASIS
THAT "SUCH AN APPLICATION OF THE STATUTE MIGHT EASILY LEAD TO SERIOUS
DIFFICULTIES IN EFFECTING CONTRACTS FOR NECESSARY SERVICES IN COUNTRIES
WHERE SOCIAL AND BUSINESS CONDITIONS AND CUSTOMS DIFFER WIDELY FROM OUR
OWN."  19 COMP. GEN. 516, 518. 

SUCH CONSIDERATIONS, I AGREE, OUGHT PROPERLY TO TAKE PRECEDENCE OVER
THE LITERAL LANGUAGE OF THE EIGHT HOUR LAW AS GUIDES TO ITS
INTERPRETATION.  SEE AMERICAN SECURITY CO. V. DISTRICT OF COLUMBIA, 224
U.S. 491.  WE SHOULD NOT, IN THE ABSENCE OF AN EXPLICIT DECLARATION OF
POLICY, ASSUME THAT CONGRESS MEANT TO IMPOSE OUR DOMESTIC STANDARDS OF
EMPLOYMENT UPON PEOPLES WHO ARE NOT GENERALLY SUBJECT TO THE REGULATORY
POWER OF CONGRESS.  SEE 29 OP. ATTY. GEN. 488, 492-93.  BUT I COULD NOT
REGARD THESE CONSIDERATIONS AS CONTROLLING IF I FELT BOUND BY THE
DECISION OF THE COURT IN THE VERMILYA-BROWN CASE.  THAT CASE EXTENDED
TO FOREIGN CONDITIONS OF LABOR PROVISIONS OF THE FAIR LABOR STANDARDS
ACT INDISTINGUISHABLE IN EFFECT FROM THOSE OF THE EIGHT HOUR LAW, AND
IT WAS AN EXTENSION MORE DIFFICULT THAN THAT WHICH THE COURT AVOIDS
HERE BOTH BECAUSE NOT APPARENTLY COMPELLED BY THE LITERAL TERMS OF THE
FAIR LABOR STANDARDS ACT AND BECAUSE THAT ACT IS NOT CONFINED IN ITS
APPLICATION TO CONTRACTS TO WHICH THE UNITED STATES IS A PARTY. 
UNIFORMITY IN THE TERMS OF GOVERNMENT CONTRACTS, INDEED, IS A MATTER SO
MUCH MORE NEARLY WITHIN THE USUAL SCOPE OF CONGRESSIONAL CONCERN THAT
ATTORNEY GENERAL MOODY REQUIRED NO EXPLICIT SHOWING OF CONGRESSIONAL
PURPOSE TO CONCLUDE THAT THE EIGHT HOUR LAW APPLIED TO CONTRACTS FOR
THE CONSTRUCTION OF THE PANAMA CANAL, EVEN UPON THE ASSUMPTION THAT THE
CANAL ZONE WAS TO BE REGARDED AS FOREIGN TERRITORY.  25 OP. ATTY. GEN.
441. 

BUT THERE ARE OTHER RESPECTS IN WHICH THE VERMILYA-BROWN CASE
PRESENTED MORE COMPELLING REASONS THAN WE HAVE HERE FOR REFUSING TO
ATTRIBUTE TO CONGRESS AN INTENTION TO REGULATE THE CONDITIONS OF WORK
OF FOREIGN EMPLOYEES.  HERE WE ARE REQUIRED ONLY TO CONSTRUE A PHRASE,
"EVERY CONTRACT MADE TO WHICH THE UNITED STATES  ...  IS A PARTY,"
WHICH IS PECULIAR TO ITS OWN CONTEXT.  IN THE VERMILYA-BROWN CASE,
HOWEVER, THE COURT HELD THAT OUR LEASED BASES FELL WITHIN THE TERM
"POSSESSIONS," AND THAT IS A TERM WHICH CONGRESS HAS USED AT LEAST
SIXTY-EIGHT TIMES.  SEE VERMILYA-BROWN CO. V. CONNELL, DISSENTING
OPINION, 335 U.S. AT 398, N. 11.  AND AS ILLUSTRATING THE READINESS
WITH WHICH THE VERMILYA-BROWN CASE CAN BE REGARDED AS CONTROLLING THE
INTERPRETATION OF ALL THE STATUTES IN WHICH THE TERM OCCURS, SEE SPELAR
V. UNITED STATES, 171 F.2D 208, APPLYING THE FEDERAL TORT CLAIMS ACT TO
A LEASED BASE IN NEWFOUNDLAND.  THE VERMILYA-BROWN CASE, MOREOVER,
BRUSHES ASIDE OFFICIAL APPREHENSIONS ABOUT THE INTERFERENCE OF THE
UNITED STATES IN FOREIGN CONDITIONS OF LABOR FAR MORE SERIOUS THAN
THOSE WHICH HAVE INFLUENCED JUDGMENT HERE.  ALL WE HAVE TO GUIDE US IN
THE PRESENT CASE ARE GENERAL STATEMENTS IN OPINIONS OF TWO ATTORNEYS
GENERAL AND A COMPTROLLER GENERAL WHICH REQUIRED NO SPECIALIZED
INFORMATION ABOUT WORKING CONDITIONS ABROAD, THE KNOWLEDGE THAT THE
STANDARD CONTRACTS APPROVED BY THE SECRETARY OF THE TREASURY AND THE
WAR DEPARTMENT ARE CONSISTENT WITH THOSE OPINIONS, AND A LETTER FROM
THE STATE DEPARTMENT WHICH SAYS MERELY THAT THE DEPARTMENT "DOES NOT
CONSIDER IT LEGALLY NECESSARY TO INCLUDE PROVISIONS OF THE EIGHT HOUR
LAW IN CONTRACTS TO BE PERFORMED IN FOREIGN COUNTRIES." 

IN THE VERMILYA-BROWN CASE, HOWEVER, THE COURT HAD BEFORE IT A LETTER
ON BEHALF OF THE SECRETARY OF STATE WHICH SAID: 

"ANY HOLDING THAT THE BASES OBTAINED FROM THE GOVERNMENT OF GREAT
BRITAIN ON 99 YEAR LEASES ARE 'POSSESSIONS' OF THE UNITED STATES IN A
POLITICAL SENSE WOULD NOT IN THE DEPARTMENT'S VIEW BE CALCULATED TO
IMPROVE OUR RELATIONS WITH THAT GOVERNMENT.  MOREOVER, SUCH A HOLDING
MIGHT VERY WELL BE DETRIMENTAL TO OUR RELATIONS WITH OTHER FOREIGN
COUNTRIES IN WHICH MILITARY BASES ARE NOW HELD OR IN WHICH THEY MIGHT
IN THE FUTURE BE SOUGHT." 

THE STATE DEPARTMENT SPEAKS AUTHORITATIVELY ON THE INTERNATIONAL
RESPONSIBILITY OF OUR GOVERNMENT IN OBSERVING AGREEMENTS WITH OTHER
NATIONS, AND THUS IT SPOKE IN THIS LETTER.  IT ALSO HAS KNOWLEDGE, TO
WHICH COURTS CANNOT PRETEND, OF THE BEARING OF SUCH OBSERVANCE ON
PROPITIOUS NEGOTIATIONS OF FUTURE AGREEMENTS.  THE LETTER REFLECTS THAT
KNOWLEDGE.  EVEN CLOISTERED JUDGES, HOWEVER, NEED NOT BE IGNORANT OF
THE FACT THAT THIS COUNTRY HAS NOT EXHAUSTED ITS INTEREST IN SECURING
BASES ON TERRITORY NOT OURS. 

OUR DECISION IN THE VERMILYA-BROWN CASE IN DISREGARD OF THIS WEIGHTY
CONCERN OF THE SECRETARY OF STATE WAS FOLLOWED BY A PETITION FOR
REHEARING IMPRESSIVELY SUPPORTED BY ALL THE ACTIVELY RESPONSIBLE
EXECUTIVE OFFICERS OF THE GOVERNMENT.  THE STATE DEPARTMENT REITERATED
ITS VIEW THAT THE INCLUSION OF THE LEASED BASES AMONG THE "POSSESSIONS"
OF THE UNITED STATES WAS "UNFORTUNATE" AND ADDED THAT THE DEPARTMENT
"DOES NOT SHARE THE ASSURANCE OF THE COURT THAT THE HOUSE OF ASSEMBLY
OF BERMUDA OR OTHER COLONIAL LEGISLATURES MIGHT NOT UNDERTAKE
LEGISLATION SIMILAR TO THE FAIR LABOR STANDARDS ACT TO CONTROL LABOR
RELATIONS ON THE BASES.  IT IS AT LEAST WORTHY OF NOTE IN THIS
CONNECTION THAT ADMINISTRATIVE DIFFICULTIES HAVE ARISEN IN THE BASES BY
REASON OF THE APPLICATION TO CONTRACTORS' EMPLOYEES OF WORKMEN'S
COMPENSATION LAWS OF BOTH THE UNITED STATES AND THE COLONIES
CONCERNED." 

THE PETITION FOR REHEARING ALSO BROUGHT TO THE ATTENTION OF THE COURT
A LETTER FROM THE SECRETARY OF THE ARMY WHICH READ IN PART AS FOLLOWS: 

"DURING THE PAST NINE YEARS OF EMPLOYMENT EXPERIENCE IN FOREIGN
COUNTRIES, ARMY CONTRACTING OFFICERS HAVE DISCOVERED (WHETHER THE
EMPLOYMENT WAS HANDLED DIRECTLY OR THROUGH A CPFF CONTRACTOR) THAT IN
HIRING NATIVE WORKMEN THE LOCAL GOVERNMENT IN MANY COUNTRIES WILL
IMPOSE MAXIMUM WAGE STANDARDS WHICH DARE NOT BE VIOLATED.  THESE
STANDARDS ARE SOMETIMES FIXED BY STATUTE OR REGULATION WITH THE FORCE
OF STATUTE, AND OTHER TIMES BY POLICY WHICH HAS THE PRACTICAL EFFECT OF
LAW.  SUCH GOVERNMENTS EXPLAIN THAT TO PAY NATIVE WORKMEN ACCORDING TO
AMERICAN WAGE STANDARDS WOULD SERIOUSLY DISRUPT THE LOCAL ECONOMY. 
ALSO, IN MANY INDUSTRIALLY UNDEVELOPED COUNTRIES, LOCAL OFFICIALS
ADVISE THAT 'EXCESSIVE' WAGES TO COMMON LABORERS WOULD JEOPARDIZE THE
AVAILABILITY OF SUCH LABORERS AND IMPOSE SERIOUS POLICE PROBLEMS UPON
THE STATE.  (IT SHOULD BE NOTED THAT THE SOCIAL AND ECONOMIC STRUCTURE
OF MANY AREAS, ORGANIZED ALONG TRIBAL LINES, PRECLUDES A DIRECT DEALING
WITH INDIVIDUAL LABORERS.)  IT APPEARS DOUBTFUL THAT THE COURT HAS BEEN
SUFFICIENTLY APPRISED OF THIS SPECIAL PROBLEM.  THE PAYMENT OF
STATUTORY OVERTIME TO AMERICAN PERSONNEL AT CONTRACTORS' OVERSEAS
CONSTRUCTION SITES WILL BE A MINOR PROBLEM IN COMPARISON WITH PAYING OF
STATUTORY MINIMUM WAGES AND OVERTIME TO NATIVE WORKMEN IN THE FACE OF
MILITANT OPPOSITION BY FOREIGN GOVERNMENTS.  (IT SHOULD BE NOTED THAT
AMONG AMERICAN PERSONNEL ALL LABORERS AND MECHANICS, SKILLED AND SEMI
SKILLED ARTISANS AND CRAFTSMEN, HAVE ALWAYS BEEN PAID ON HOURLY RATES
WITH OVERTIME BENEFITS FAR EXCEEDING STATUTORY REQUIREMENTS  ...  )" 

THE ACTING SECRETARY OF THE NAVY EXPRESSED SIMILAR VIEWS: 

"IT HAS BEEN AND IS THE POLICY OF THIS DEPARTMENT TO EMPLOY LOCAL
LABOR AT THE LEASED BASES TO THE MAXIMUM EXTENT PRACTICABLE AND TO MAKE
ITS WAGE AND LABOR PRACTICES WITH RESPECT THERETO CONFORM AS NEARLY AS
POSSIBLE TO THE USUAL WAGE AND LABOR PRACTICES OF THE PARTICULAR
LOCALITY.  APPLICATION OF THE FAIR LABOR STANDARDS ACT TO THE
PARTICULAR AREAS INVOLVED MAY WELL CREATE CONDITIONS WHICH WOULD
ADVERSELY AFFECT THE COOPERATION HERETOFORE GIVEN NAVY CONTRACTORS BY
LOCAL AUTHORITIES.  THE CONTINUED COOPERATION OF SUCH AUTHORITIES IS,
OF COURSE, HIGHLY DESIRABLE." 

THE WAGE AND HOUR ADMINISTRATOR, WHO IS ULTIMATELY RESPONSIBLE FOR
ENFORCING THE VERMILYA-BROWN DECISION, WROTE THAT "EVEN IF I SHOULD BE
ABLE TO REACH SOUND CONCLUSIONS AS TO THE APPLICATION OF THE ACT IN
THESE AREAS, I CANNOT HELP BUT FORESEE FUNDAMENTAL ADMINISTRATIVE
DIFFICULTIES IN ATTEMPTING TO APPLY THE ACT IN 'POSSESSIONS' OVER WHICH
THE UNITED STATES DOES NOT EXERCISE FULL SOVEREIGN RIGHTS, ESPECIALLY
WHERE FOREIGN EMPLOYERS AND ALIEN LABOR ARE INVOLVED."  IN VIEW BOTH OF
THE ADMINISTRATOR'S VERY SPECIAL RELATION TO THIS MATTER AND OF THE
PERSUASIVENESS OF HIS VIEWS, HIS LETTER IS PRINTED AS AN APPENDIX TO
THIS OPINION. 

IF, IN THE FACE OF THESE STATEMENTS BY EXECUTIVE OFFICERS CHARGED
WITH, AND EXPERIENCED IN, THE ADMINISTRATION OF OUR LEASED BASES, THE
COURT COULD REACH A CONTRARY INTERPRETATION OF THE BROAD TERM
"POSSESSIONS," IT MUST BE MANIFEST WHY I COULD NOT, WERE I BOUND BY
PRECEDENT, JOIN IN READING THE NARROW PHRASE "EVERY CONTRACT MADE TO
WHICH THE UNITED STATES  ...  IS A PARTY" IN A WAY WHICH DEPARTED FROM
ITS LITERAL TERMS WHEN THE ONLY REASON FOR SUCH A DEPARTURE IS
RELUCTANCE TO ATTRIBUTE TO CONGRESS AN INTENTION TO INTERFERE IN "LABOR
CONDITIONS WHICH ARE THE PRIMARY CONCERN OF A FOREIGN COUNTRY." 
                       APPENDIX

      U.S. DEPARTMENT OF LABOR

             WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS
    WASHINGTON 25, D.C., DECEMBER 23, 1948. 

                   THE HONORABLE PHILIP B. PERLMAN,

                SOLICITOR GENERAL OF THE UNITED STATES,

                        DEPARTMENT OF JUSTICE,

                         WASHINGTON 25, D.C. 

DEAR MR. PERLMAN:  BY LETTER DATED DECEMBER 22, 1948, YOU ADVISE THAT
YOU INTEND TO SUPPORT A PETITION FOR REHEARING TO BE FILED IN
CONNECTION WITH THE RECENT DECISION OF THE SUPREME COURT IN VERMILYA
BROWN COMPANY V. CONNELL, NO. 22, THIS TERM, DECIDED DECEMBER 6, 1948. 
YOU STATE THAT YOU WILL PRESENT TO THE COURT THE VIEWS OF THE
DEPARTMENTS OF STATE, ARMY, AND NAVY.  ON BEHALF OF THESE DEPARTMENTS,
AND THE DEPARTMENT OF JUSTICE, YOU WILL URGE THE COURT TO RECONSIDER
ITS HOLDING THAT THE WORD "POSSESSION," AS USED IN THE PHRASE "STATE,
TERRITORY OR POSSESSION" IN SECTION 3(C) OF THE FAIR LABOR STANDARDS
ACT, IS NOT A TERM OF ART, AND THAT THE BERMUDA DEFENSE AREA LEASED TO
US IN 1940 BY GREAT BRITAIN IS WITHIN THE COVERAGE OF THE STATUTE AS A
"POSSESSION."  YOU REQUEST THAT I FORWARD TO YOU MY VIEWS CONCERNING
THE EFFECT WHICH THIS HOLDING MAY HAVE ON ADMINISTRATION AND
ENFORCEMENT OF THE ACT. 

I THINK IT MAY FAIRLY BE SAID THAT MY PREDECESSORS AND I, IN
CONSIDERING THE TERRITORIAL ASPECTS OF WAGE-HOUR COVERAGE IN THE PAST,
HAVE PROCEEDED ON THE ASSUMPTION THAT TRADITIONAL CONCEPTS OF SOVEREIGN
CONTROL WERE IMPLICIT IN THE MEANING OF THE PHRASE, "ANY TERRITORY OR
POSSESSION OF THE UNITED STATES," AS THAT PHRASE IS USED IN THE FAIR
LABOR STANDARDS ACT.  IN THE ABSENCE OF CONTROLLING COURT DECISIONS, IT
WAS NECESSARY FOR US TO INTERPRET THE PHRASE FOR OUR GUIDANCE IN THE
ADMINISTRATION OF THE ACT.  IN DOING SO, WE NOT ONLY STUDIED THE
PROVISIONS OF OTHER STATUTES IN WHICH THESE TERMS WERE USED AND
AUTHORITATIVE DECISIONS OF THE COURTS CONSTRUING SUCH LANGUAGE IN
SITUATIONS WHICH WERE THOUGHT TO BE COMPARABLE, BUT GAVE PARTICULAR
WEIGHT TO AUTHORITATIVE EXPRESSIONS OF THE STATE DEPARTMENT AND OTHER
PROPER GOVERNMENTAL AGENCIES ON THE QUESTION OF WHAT AREAS ARE VIEWED
AS TERRITORIES OR POSSESSIONS OVER WHICH THE UNITED STATES EXERCISES
FULL SOVEREIGN RIGHTS.  ON THIS BASIS WE EXPRESSED THE OPINION IN
INTERPRETATIVE BULLETIN NO. 2, FIRST ISSUED IN NOVEMBER, 1938, AND IN
CHAPTER V, PART 776, TITLE 29 OF THE CODE OF FEDERAL REGULATIONS
(SECTION 776.1(C)) WHICH REPLACED THIS BULLETIN IN JULY, 1947, THAT
ALASKA, HAWAII, PUERTO RICO, THE CANAL ZONE, GUAM, GUANO ISLANDS,
SAMOA, AND THE VIRGIN ISLANDS WERE TERRITORIES AND POSSESSIONS WITHIN
THE MEANING OF THE ACT. 

WHEN THE QUESTION OF THE STATUS OF THE LEASED BASES OF THE TYPE
INVOLVED IN THE VERMILYA-BROWN CASE WAS FIRST BROUGHT TO OUR ATTENTION
IN 1942 AND 1943, WE EXPRESSED THE VIEW, IN THE OPINIONS QUOTED IN THE
GOVERNMENT'S BRIEF BEFORE THE SUPREME COURT, THAT THESE BASES WERE NOT
TERRITORIES OR POSSESSIONS OF THE UNITED STATES WITHIN THE MEANING OF
THE ACT.  THIS VIEW WAS SUBSEQUENTLY MODIFIED AFTER IT APPEARED THAT
THE MATTER WAS BEING LITIGATED IN THE COURTS AND CONSULTATION WITH
STATE DEPARTMENT OFFICIALS INDICATED THAT THAT DEPARTMENT HAD MADE NO
RULING (THE LETTER FROM THAT DEPARTMENT WHICH IS APPENDIX A TO YOUR
BRIEF NOT HAVING BEEN WRITTEN AT THAT TIME).  THIS MODIFICATION OF OUR
POSITION IS REFLECTED BY THE FOLLOWING LANGUAGE WHICH WAS USED TO
ADVISE INQUIRIES:  "UNTIL THE QUESTION HAS BEEN SETTLED BY COURT
DECISIONS, CONGRESSIONAL OR EXECUTIVE ACTION, OR INTERPRETATIONS ISSUED
BY THE STATE DEPARTMENT OR OTHER PROPER GOVERNMENTAL AGENCIES, THE
DIVISIONS ARE NOT IN A POSITION TO ASSERT WHETHER THE FAIR LABOR
STANDARDS ACT APPLIES TO EMPLOYEES WORKING AT BASES LEASED FROM THE
BRITISH." 

AS A RESULT OF THE SUPREME COURT'S DECISION IN THE VERMILYA-BROWN
CASE, IT APPEARS THAT THE STATUS OF A GIVEN AREA AS A "TERRITORY OR
POSSESSION OF THE UNITED STATES" FOR PURPOSES OF THE ACT IS SUBJECT TO
DETERMINATION ON THE BASIS OF CONSIDERATIONS OTHER THAN THOSE USED BY
THE POLITICAL DEPARTMENTS OF THE GOVERNMENT, ON WHICH WE HAVE PLACED
PARTICULAR RELIANCE IN THE PAST.  I ANTICIPATE THAT AT LEAST TWO MAJOR
PROBLEMS WILL CONFRONT ME AS A RESULT OF THE COURT'S RULING. 

FIRST, IN ORDER TO PERFORM MY STATUTORY DUTIES UNDER THE ACT, IT WILL
BE NECESSARY FOR ME TO DECIDE INITIALLY, PENDING AUTHORITATIVE GUIDANCE
FROM THE COURTS, WHETHER OTHER DEFENSE BASE AREAS COME WITHIN THE
STATUTORY LANGUAGE COVERING TERRITORIES AND POSSESSIONS OF THE UNITED
STATES.  IF, AS WOULD SEEM TO FOLLOW FROM THE COURT'S DECISION, I WOULD
NOT BE AIDED IN THIS BY THE VIEWS OF THE STATE DEPARTMENT AS TO WHETHER
SUCH AREAS ARE TERRITORIES OR POSSESSIONS IN THE POLITICAL SENSE, OR
UNDER TRADITIONAL CONCEPTS OF SOVEREIGNTY, I SHALL BE CALLED UPON TO
ENTER A FIELD OF INTERPRETATION IN WHICH OUR PREVIOUS EXPERIENCE WITH
THE ACT OFFERS NO RELIABLE GUIDES, AND WHICH MAY INVOLVE THE MEANING OF
INTERNATIONAL AGREEMENTS ON WHICH THIS AGENCY WOULD ORDINARILY SEEK THE
ADVICE OF THE STATE DEPARTMENT.  ADEQUATE STANDARDS FOR GUIDANCE IN
DECIDING SUCH QUESTIONS FOR PURPOSES OF ADMINISTRATION OF THE ACT ARE,
IN MY OPINION, NOT AVAILABLE TO ME EITHER IN THE LANGUAGE OF THE
STATUTE, ITS LEGISLATIVE HISTORY, OR IN THE VERMILYA-BROWN DECISION
ITSELF.  THE DIFFICULTY, IN SUCH CIRCUMSTANCES, OF REACHING SOUND
CONCLUSIONS CONCERNING COVERAGE IN BASES SUCH AS OKINAWA, GREECE,
ICELAND, CANADA, NEWFOUNDLAND, THE PHILIPPINE ISLANDS, TUNISIA, AND
ARABIA IS APPARENT.  MY POSITION WILL BE EVEN MORE DIFFICULT IN
CONNECTION WITH CLASSIFIED MILITARY BASE AREAS. 

SECOND, EVEN IF I SHOULD BE ABLE TO REACH SOUND CONCLUSIONS AS TO THE
APPLICATION OF THE ACT IN THESE AREAS, I CANNOT HELP BUT FORESEE
FUNDAMENTAL ADMINISTRATIVE DIFFICULTIES IN ATTEMPTING TO APPLY THE ACT
IN "POSSESSIONS" OVER WHICH THE UNITED STATES DOES NOT EXERCISE FULL
SOVEREIGN RIGHTS, ESPECIALLY WHERE FOREIGN EMPLOYERS AND ALIEN LABOR
ARE INVOLVED.  EVEN IF SUCH DIFFICULTIES MAY NOT BE INSUPERABLE, VEXING
PROBLEMS OF COURTS WITH PROPER JURISDICTION AND VENUE TO APPLY THE
CRIMINAL AND CIVIL SANCTIONS IN SUCH CASES ARE, IT SEEMS TO ME, BOUND
TO ARISE IF WE ARE TO UNDERTAKE ACTIVE ENFORCEMENT IN THESE BASES. 
AND, AS YOU WILL APPRECIATE, NEITHER THE APPROPRIATION FOR, NOR THE
ORGANIZATION OF THE WAGE AND HOUR DIVISION WERE DEVISED IN
CONTEMPLATION OF ENFORCEMENT EFFORTS IN OUTPOSTS SUCH AS THESE. 

IT HAS, OF COURSE, NOT BEEN POSSIBLE FOR US TO EXPLORE FULLY THESE
AND OTHER POSSIBLE PROBLEMS WHICH MIGHT CONFRONT US AS A RESULT OF THE
VERMILYA-BROWN DECISION, IN THE LIMITED TIME AVAILABLE TO US BY REASON
OF THE PERIOD FOR FILING PETITIONS FOR REHEARING.  IF THE COURT SHOULD
GRANT A REHEARING IN THE CASE, I SHALL BE GLAD TO MAKE AVAILABLE TO YOU
THE RESULTS OF OUR FURTHER EXPLORATION OF THESE QUESTIONS IN ORDER THAT
YOU MAY FULLY APPRISE THE COURT OF MY VIEWS CONCERNING THE PROBABLE
EFFECTS OF THE PRESENT DECISION IN TERMS OF THE OVER-ALL ADMINISTRATION
OF THE FAIR LABOR STANDARDS ACT. 

VERY TRULY YOURS,

                            WM. R. MCCOMB,

                                 ADMINISTRATOR. 
..END :







ALGOMA PLYWOOD CO. V. WIS. BOARD, 336 U.S. 301 


NO. 216.  ARGUED NOVEMBER 18, 1948.  - DECIDED MARCH 7, 1949.  - 252
WIS. 549, 32 N.W.2D 417, AFFIRMED. 


IN 1942 THE NATIONAL LABOR RELATIONS BOARD CERTIFIED A UNION AS
BARGAINING REPRESENTATIVE FOR EMPLOYEES OF A MANUFACTURER PRODUCING
GOODS FOR INTERSTATE COMMERCE.  IN 1943, UNDER PRESSURE FROM THE
DEPARTMENT OF LABOR AND THE WAR LABOR BOARD, THE EMPLOYER AGREED TO A
MAINTENANCE-OF-MEMBERSHIP CLAUSE IN ITS CONTRACT WITH THE UNION, WHICH
WAS EXTENDED FROM YEAR TO YEAR TO APRIL, 1947.  IN JANUARY, 1947, AN
EMPLOYEE WAS DISCHARGED FOR REFUSAL TO PAY UNION DUES AND FILED A
COMPLAINT WITH THE WISCONSIN EMPLOYMENT RELATIONS BOARD CHARGING
VIOLATION OF WIS. STAT. SEC. 111.06(1)(C) 1, WHICH, IN EFFECT, FORBIDS
ENFORCEMENT OF A MAINTENANCE-OF-MEMBERSHIP CLAUSE UNLESS THE CONTRACT
CONTAINING IT IS APPROVED BY TWO-THIRDS OF THE EMPLOYEES IN A
REFERENDUM CONDUCTED BY THE STATE BOARD.  NO SUCH REFERENDUM HAD BEEN
CONDUCTED FOR THESE EMPLOYEES.  THE STATE BOARD ORDERED THE
MANUFACTURER TO CEASE AND DESIST FROM GIVING EFFECT TO THE MAINTENANCE
OF-MEMBERSHIP CLAUSE, TO OFFER THE EMPLOYEE REINSTATEMENT, AND TO
REIMBURSE HIM FOR LOSS OF PAY.  HELD:  THE ORDER IS NOT IN CONFLICT
WITH THE NATIONAL LABOR RELATIONS ACT OR THE LABOR MANAGEMENT RELATIONS
ACT.  PP. 303-315. 

1.  THE STATE BOARD WAS NOT DEPRIVED OF POWER TO ISSUE ITS ORDER BY
SEC. 10(A) OF THE NATIONAL LABOR RELATIONS ACT, WHICH GRANTS THE
NATIONAL BOARD EXCLUSIVE POWER TO PREVENT ANY PERSON FROM ENGAGING IN
ANY UNFAIR LABOR PRACTICE LISTED IN SEC. 8.  PP. 305-307. 

2.  NOR WAS IT DEPRIVED OF POWER TO ISSUE ITS ORDER BY SEC. 8(3),
WHICH FORBIDS EMPLOYERS TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A
UNION BUT PROVIDES THAT NOTHING IN THE ACT OR ANY OTHER FEDERAL STATUTE
SHALL PRECLUDE AN EMPLOYER FROM MAKING AN AGREEMENT WITH A UNION TO
REQUIRE MEMBERSHIP THEREIN AS A CONDITION OF EMPLOYMENT IF THE UNION IS
THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES.  PP. 307-312. 

(A)  THIS CONCLUSION IS SUPPORTED BY THE LANGUAGE AND LEGISLATIVE
HISTORY OF SEC. 8(3).  PP. 307-310. 

(B)  IT IS NOT IN CONFLICT WITH ANY RULING BY THE COURTS OR THE
NATIONAL LABOR RELATIONS BOARD.  P. 310. 

(C)  NOR IS IT IN CONFLICT WITH THE ADMINISTRATIVE PRACTICE OF THE
WAR LABOR BOARD IN PRESCRIBING MAINTENANCE-OF-MEMBERSHIP CLAUSES TO
SETTLE WARTIME DISPUTES, SINCE THAT PRACTICE WAS BASED UPON THE WAR
POWERS RATHER THAN UPON SEC. 8(3) OF THE NATIONAL LABOR RELATIONS ACT
AND THE WAR LABOR BOARD HAD CEASED TO EXIST WHEN THE STATE BOARD ISSUED
ITS ORDER.  PP. 310-312. 

3.  NOR DOES THE STATE STATUTE OR THE STATE BOARD'S ACTION THEREUNDER
CONFLICT WITH SEC. 10(A) OF THE LABOR MANAGEMENT RELATIONS ACT.  PP.
313-314. 

4.  THE CERTIFICATION OF THE UNION BY THE NATIONAL BOARD DID NOT OUST
THE STATE BOARD FROM JURISDICTION TO ENJOIN PRACTICES FORBIDDEN BY
STATE LAW AND NOT GOVERNED BY FEDERAL LAW.  PP. 314-315. 

ALGOMA PLYWOOD & VENEER CO. V. WISCONSIN EMPLOYMENT RELATIONS BOARD. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

THE WISCONSIN EMPLOYMENT RELATIONS BOARD ORDERED AN EMPLOYER TO CEASE
AND DESIST FROM GIVING EFFECT TO A MAINTENANCE-OF-MEMBERSHIP CLAUSE IN
A CONTRACT WITH A UNION CERTIFIED BY THE NATIONAL LABOR RELATIONS BOARD
AS THE COLLECTIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES AND TO
REIMBURSE FOR LOSS OF PAY AN EMPLOYEE WHO HAD BEEN DISCHARGED FOR
REFUSAL TO PAY UNION DUES.  A STATE CIRCUIT COURT MODIFIED THE ORDER BY
STRIKING THE AWARD OF BACK PAY BUT OTHERWISE AFFIRMED IT.  14 LABOR
CASES (C.C.H.)  NO. 64,253.  THE STATE SUPREME COURT SUSTAINED THE
ORDER AS ORIGINALLY ISSUED.  252 WIS. 549, 32 N.W.2D 417.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 812.  AFFIRMED, P. 315. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE ALGOMA PLYWOOD & VENEER CO. MANUFACTURES IN KEWAUNEE COUNTY,
WISCONSIN, THE PRODUCTS FOR WHICH IT IS NAMED.  NINETY-FIVE PER CENT OF
ITS OUTPUT IS SOLD IN INTERSTATE COMMERCE.  IN 1942 THE NATIONAL LABOR
RELATIONS BOARD HELD AN ELECTION AT THE PLANT, THE OUTCOME OF WHICH WAS
THE CERTIFICATION OF LOCAL 1521 OF THE CARPENTERS AND JOINERS UNION AS
BARGAINING REPRESENTATIVE FOR ALL PRODUCTION EMPLOYEES, ABOUT 650 IN
NUMBER.  IN 1943, UNDER PRESSURE FROM THE DEPARTMENT OF LABOR AND THE
WAR LABOR BOARD, ALGOMA AGREED TO A MAINTENANCE-OF-MEMBERSHIP CLAUSE IN
ITS CONTRACT WITH LOCAL 1521.  THAT CLAUSE WAS CARRIED OVER FROM YEAR
TO YEAR AND WAS PART OF THE CONTRACT EFFECTIVE FOR THE YEAR FOLLOWING
APRIL 29, 1946.  ONE VICTOR MOREAU REFUSED TO PAY DUES, AND ON JAN. 7,
1947, THE UNION NOTIFIED HIM THAT UNLESS HE PAID UP BY JAN. 13, HE
WOULD BE DISCHARGED.  ON JAN. 14, 1947, IN THE PRESENCE OF
REPRESENTATIVES OF THE COMPANY AND THE UNION, HE SAID THAT HE WOULD
RATHER QUIT THAN PAY DUES TO THE UNION.  AND SO THE VICE-PRESIDENT OF
THE COMPANY TOLD HIM TO COLLECT HIS PAY AND GO HOME. 

ON JAN. 27, 1947, MOREAU FILED WITH THE WISCONSIN EMPLOYMENT
RELATIONS BOARD A COMPLAINT CHARGING THE COMPANY WITH AN UNFAIR LABOR
PRACTICE UNDER WIS. STAT. SEC. 111.06(1)(C) 1, WHICH PROVIDES: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER  ...  TO
ENCOURAGE  ...  MEMBERSHIP IN ANY LABOR ORGANIZATION  ...  BY
DISCRIMINATION IN REGARD TO HIRING, TENURE OR OTHER TERMS OR CONDITIONS
OF EMPLOYMENT; PROVIDED, THAT AN EMPLOYER SHALL NOT BE PROHIBITED FROM
ENTERING INTO AN ALL-UNION AGREEMENT WITH THE REPRESENTATIVES OF HIS
EMPLOYES IN A COLLECTIVE BARGAINING UNIT, WHERE AT LEAST TWO THIRDS OF
SUCH EMPLOYES VOTING  ...  SHALL HAVE VOTED AFFIRMATIVELY BY SECRET
BALLOT IN FAVOR OF SUCH ALL-UNION AGREEMENT IN A REFERENDUM CONDUCTED
BY THE BOARD.  ...  " 

NO REFERENDUM HAD BEEN CONDUCTED AT THE ALGOMA PLANT.  THE BOARD,
ACCORDINGLY, ON APRIL 30, 1947, ORDERED THE COMPANY TO CEASE AND DESIST
FROM GIVING EFFECT TO THE MAINTENANCE-OF-MEMBERSHIP CLAUSE, TO OFFER
MOREAU REINSTATEMENT, AND TO MAKE HIM WHOLE FOR ANY LOSS OF PAY.  THE
COMPANY AND THE UNION PETITIONED THE WISCONSIN CIRCUIT COURT OF
KEWAUNEE COUNTY FOR REVIEW OF THE ORDER, AND THE BOARD PETITIONED FOR
ITS ENFORCEMENT.  IN ITS JUDGMENT OF NOV. 21, 1947, THE CIRCUIT COURT
MODIFIED THE ORDER BY STRIKING THE AWARD OF BACK PAY, BUT OTHERWISE
AFFIRMED IT.  ON MAY 11, 1948, THE WISCONSIN SUPREME COURT AFFIRMED THE
JUDGMENT OF THE CIRCUIT COURT INSOFAR AS IT SUSTAINED THE JURISDICTION
OF THE BOARD TO ISSUE ITS CEASE AND DESIST ORDER AND TO REQUIRE AN
OFFER OF REINSTATEMENT BUT DIRECTED ENFORCEMENT OF THE BACK-PAY AWARD. 
252 WIS. 549, 32 N.W.2D 417. 

AT EVERY STAGE OF THE PROCEEDINGS THE COMPANY AND THE UNION CONTESTED
THE JURISDICTION OF THE EMPLOYMENT RELATIONS BOARD ON THE GROUND OF THE
EXCLUSIVE AUTHORITY OF THE NATIONAL LABOR RELATIONS BOARD UNDER SEC.
10(A) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 453, 29 U.S.C. SEC.
160(A), AND ASSERTED THE REPUGNANCY OF WIS. STAT. SEC. 111.06(1)(C) 1
TO SEC. 8(3) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 452, 29
U.S.C. SEC. 158(3).  WE GRANTED CERTIORARI UNDER 28 U.S.C. SEC. 1257(3)
BECAUSE OF THE IMPORTANT BEARING OF THESE ISSUES UPON THE DISTRIBUTION
OF POWER IN OUR FEDERAL SYSTEM.  335 U.S. 812. 

THE DISCHARGE OF MOREAU AND THE ORDERS OF THE WISCONSIN BOARD
PRECEDED THE LABOR MANAGEMENT RELATIONS ACT, 1947, COLLOQUIALLY KNOWN
AS THE TAFT-HARTLEY ACT, 61 STAT. 136, 29 U.S.C. SEC. 141 ET SEQ.  THE
JUDGMENTS OF THE CIRCUIT COURT FOR KEWAUNEE COUNTY AND THE SUPREME
COURT OF WISCONSIN WERE RENDERED AFTER IT CAME INTO FORCE.  IF THE
NATIONAL LABOR RELATIONS ACT GAVE AFFIRMATIVE PROTECTION TO THE
EMPLOYER IN DISCHARGING AN EMPLOYEE UNDER A UNION-SECURITY AGREEMENT
FOR FAILURE TO MAINTAIN UNION MEMBERSHIP, IT WOULD BE NECESSARY TO
DECIDE WHETHER ADOPTION OF THE TAFT-HARTLEY ACT RETROACTIVELY REMOVED
THAT PROTECTION AND WHETHER IT EQUALLY GAVE EFFECT TO A REINSTATEMENT
ORDER, AN AWARD OF BACK PAY, AND A CEASE AND DESIST ORDER WHICH WOULD
PREVIOUSLY HAVE BEEN INVALID.  SINCE, HOWEVER, WE DO NOT FIND CONFLICT
BETWEEN THE WISCONSIN LAW UNDER WHICH THE ORDERS WERE ISSUED AND EITHER
THE NATIONAL LABOR RELATIONS ACT OR THE TAFT-HARTLEY ACT, WE ARE
RELIEVED FROM DEFINING THE RESPECTIVE APPLICABILITY OF THE FEDERAL
ACTS. 

IN SEEKING TO SHOW THAT THE WISCONSIN BOARD HAD NO POWER TO MAKE THE
CONTESTED ORDERS, PETITIONER POINTS FIRST TO SEC. 10(A) OF THE NATIONAL
LABOR RELATIONS ACT, WHICH IS SET FORTH IN THE MARGIN.  FN1  IT ARGUES
THAT THE GRANT TO THE NATIONAL LABOR RELATIONS BOARD OF "EXCLUSIVE"
POWER TO PREVENT "ANY UNFAIR LABOR PRACTICE" THEREBY DISPLACED STATE
POWER TO DEAL WITH SUCH PRACTICES, PROVIDED OF COURSE THAT THE PRACTICE
WAS ONE AFFECTING COMMERCE.  BUT THIS ARGUMENT IMPLIES TWO EQUALLY
UNTENABLE ASSUMPTIONS.  ONE REQUIRES DISREGARD OF THE PARENTHETICAL
PHRASE "(LISTED IN SECTION 8)"; THE OTHER DEPENDS UPON ATTACHING TO THE
TO PREVENT UNFAIR LABOR PRACTICES NOT LISTED IN SECTION 8." 

THE TERM "UNFAIR LABOR PRACTICE" IS NOT A TERM OF ART HAVING AN
INDEPENDENT SIGNIFICANCE WHICH TRANSCENDS ITS STATUTORY DEFINITION. 
THE STATES ARE FREE (APART FROM PRE-EMPTION BY CONGRESS) TO
CHARACTERIZE ANY WRONG OF ANY KIND BY AN EMPLOYER TO AN EMPLOYEE,
WHETHER STATUTORILY CREATED OR KNOWN TO THE COMMON LAW, AS AN "UNFAIR
LABOR PRACTICE."  AT THE TIME WHEN THE NATIONAL LABOR RELATIONS ACT WAS
ADOPTED, THE COURTS OF MANY STATES, AT LEAST UNDER SOME CIRCUMSTANCES,
DENIED VALIDITY TO UNION-SECURITY AGREEMENTS.  SEE 1 TELLER, LABOR
DISPUTES AND COLLECTIVE BARGAINING SEC. 170(1940).  HERE WISCONSIN HAS
ATTACHED CONDITIONS TO THEIR ENFORCEMENT AND HAS CALLED THE VOLUNTARY
OBSERVANCE OF SUCH A CONTRACT WHEN THOSE CONDITIONS HAVE NOT BEEN MET
AN "UNFAIR LABOR PRACTICE."  HAD THE SPONSORS OF THE NATIONAL LABOR
RELATIONS ACT MEANT TO DENY EFFECT TO STATE POLICIES INCONSISTENT WITH
THE UNRESTRICTED ENFORCEMENT OF UNION-SHOP CONTRACTS, SURELY THEY WOULD
HAVE MADE THEIR PURPOSE MANIFEST.  SO FAR AS APPEARS FROM THE COMMITTEE
REPORTS, HOWEVER, SEC. 10(A) WAS DESIGNED, AS ITS LANGUAGE DECLARES,
MERELY TO PRECLUDE CONFLICT IN THE ADMINISTRATION OF REMEDIES FOR THE
PRACTICES PROSCRIBED BY SEC. 8.  THE HOUSE REPORT, AFTER SUMMARIZING
THE PROVISIONS OF THE SECTION, ADDS, "THE BOARD IS THUS MADE THE
PARAMOUNT AGENCY FOR DEALING WITH THE UNFAIR LABOR PRACTICES DESCRIBED
IN THE BILL."  H.R. REP. NO. 969, 74TH CONG., 1ST SESS. 21.  SEE ALSO
THE IDENTICAL LANGUAGE OF H.R. REP. NO. 972, 74TH CONG., 1ST SESS. 21
AND H.R. REP. NO. 1147, 74TH CONG., 1ST SESS. 23.  AND THE SENATE
REPORT DESCRIBES THE PURPOSE OF THE SECTION AS "INTENDED TO DISPEL THE
CONFUSION RESULTING FROM DISPERSION OF AUTHORITY AND TO ESTABLISH A
SINGLE PARAMOUNT ADMINISTRATIVE OR QUASI-JUDICIAL AUTHORITY IN
CONNECTION WITH THE DEVELOPMENT OF THE FEDERAL AMERICAN LAW REGARDING
COLLECTIVE BARGAINING."  S. REP. NO. 573, 74TH CONG., 1ST SESS. 15. 

THE CONTENTION THAT SEC. 10(A) OF THE WAGNER ACT SWEPT ASIDE STATE
LAW RESPECTING THE UNION SHOP MUST THEREFORE BE REJECTED.  IF ANY
PROVISION OF THE ACT HAD THAT EFFECT, IT COULD ONLY HAVE BEEN SEC.
8(3), WHICH EXPLICITLY DEALS WITH MEMBERSHIP IN A UNION AS A CONDITION
OF EMPLOYMENT.  WE NOW TURN TO CONSIDERATION OF THAT SECTION. 

AN EMPLOYER 

"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, THAT NOTHING IN THIS ACT  ...  OR
IN ANY OTHER STATUTE OF THE UNITED STATES, SHALL PRECLUDE AN EMPLOYER
FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION  ...  TO REQUIRE AS
A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN, IF SUCH LABOR
ORGANIZATION IS THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED IN
SUCH AGREEMENT WHEN MADE." 

IT IS ARGUED, THEREFORE, THAT A STATE CANNOT FORBID WHAT SEC. 8(3)
AFFIRMATIVELY PERMITS.  THE SHORT ANSWER IS THAT SEC. 8(3) MERELY
DISCLAIMS A NATIONAL POLICY HOSTILE TO THE CLOSED SHOP OR OTHER FORMS
OF UNION-SECURITY AGREEMENT.  THIS IS THE OBVIOUS INFERENCE TO BE DRAWN
FROM THE CHOICE OF THE WORDS "NOTHING IN THIS ACT  ...  OR IN ANY OTHER
STATUTE OF THE UNITED STATES," AND IT IS CONFIRMED BY THE LEGISLATIVE
HISTORY. 

THE SENATE REPORT ON THE BILL WHICH WAS TO BECOME THE NATIONAL LABOR
RELATIONS ACT HAS THIS TO SAY ABOUT SEC. 8(3): 

"THE PROVISO ATTACHED TO THE THIRD UNFAIR-LABOR PRACTICE DEALS WITH
THE QUESTION OF THE CLOSED SHOP.  PROPAGANDA HAS BEEN WIDE-SPREAD THAT
THIS PROVISO ATTACHES SPECIAL LEGAL SANCTIONS TO THE CLOSED SHOP OR
SEEKS TO IMPOSE IT UPON ALL INDUSTRY.  THIS PROPAGANDA IS ABSOLUTELY
FALSE.  THE REASON FOR THE INSERTION OF THE PROVISO IS AS FOLLOWS:
ACCORDING TO SOME INTERPRETATIONS, THE PROVISION OF SECTION 7(A) OF THE
NATIONAL INDUSTRIAL RECOVERY ACT, ASSURING THE FREEDOM OF EMPLOYEES 'TO
ORGANIZE AND BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING', WAS DEEMED TO ILLEGALIZE THE CLOSED SHOP.  THE COMMITTEE
FEELS THAT THIS WAS NOT THE INTENT OF CONGRESS WHEN IT WROTE SECTION
7(A); THAT IT IS NOT THE INTENT OF CONGRESS TODAY; AND THAT IT IS NOT
DESIRABLE TO INTERFERE IN THIS DRASTIC WAY WITH THE LAWS OF THE SEVERAL
STATES ON THIS SUBJECT. 

"BUT TO PREVENT SIMILAR MISCONCEPTIONS OF THIS BILL, THE PROVISO IN
QUESTION STATES THAT NOTHING IN THIS BILL, OR IN ANY OTHER LAW OF THE
UNITED STATES, OR IN ANY CODE OR AGREEMENT APPROVED OR PRESCRIBED
THEREUNDER, SHALL BE HELD TO PREVENT THE MAKING OF CLOSED-SHOP
AGREEMENTS BETWEEN EMPLOYERS AND EMPLOYEES.  IN OTHER WORDS, THE BILL
DOES NOTHING TO FACILITATE CLOSED-SHOP AGREEMENTS OR TO MAKE THEM LEGAL
IN ANY STATE WHERE THEY MAY BE ILLEGAL; IT DOES NOT INTERFERE WITH THE
STATUS QUO ON THIS DEBATABLE SUBJECT BUT LEAVES THE WAY OPEN TO SUCH
AGREEMENTS AS MIGHT NOW LEGALLY BE CONSUMMATED  ...  "  S. REP. NO.
573, 74TH CONG., 1ST SESS. 11-12. 

THE HOUSE REPORT CONTAINS SIMILAR LANGUAGE: 

"THE PROVISO TO THE THIRD UNFAIR LABOR PRACTICE, DEALING WITH THE
MAKING OF CLOSED-SHOP AGREEMENTS, HAS BEEN WIDELY MISREPRESENTED.  THE
PROVISO DOES NOT IMPOSE A CLOSED SHOP ON ALL INDUSTRY; IT DOES NOT GIVE
NEW LEGAL SANCTIONS TO THE CLOSED SHOP.  ALL THAT IT DOES IS TO
ELIMINATE THE DOUBTS AND MISCONSTRUCTIONS IN REGARD TO THE EFFECT OF
OF SUCH DOUBTS AND MISCONSTRUCTIONS UNDER THIS BILL, BY PROVIDING THAT
NOTHING IN THE BILL OR IN SECTION 7(A) OR IN ANY OTHER STATUTE OF THE
UNITED STATES SHALL ILLEGALIZE A CLOSED-SHOP AGREEMENT BETWEEN AN
EMPLOYER AND A LABOR ORGANIZATION, PROVIDED SUCH ORGANIZATION HAS NOT
BEEN ESTABLISHED, MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN THE
BILL AS AN UNFAIR LABOR PRACTICE AND IS THE CHOICE OF A MAJORITY OF THE
EMPLOYEES, AS PROVIDED IN SECTION 9(A), IN THE APPROPRIATE COLLECTIVE
BARGAINING UNIT COVERED BY THE AGREEMENT WHEN MADE.  THE BILL DOES
NOTHING TO LEGALIZE THE CLOSED-SHOP AGREEMENT IN THE STATES WHERE IT
MAY BE ILLEGAL; BUT THE COMMITTEE IS CONFIDENT THAT IT WOULD NOT BE THE
DESIRE OF CONGRESS TO ENACT A GENERAL BAN UPON CLOSED-SHOP AGREEMENTS
IN THE STATES WHERE THEY ARE LEGAL.  AND IT SHOULD BE EMPHASIZED THAT
NO CLOSED SHOP MAY BE EFFECTED UNLESS IT IS ASSENTED TO BY THE
EMPLOYER."  H.R. REP. NO. 969, 74TH CONG., 1ST SESS. 17.  SEE ALSO THE
IDENTICAL LANGUAGE IN H.R. REP. NO. 972, 74TH CONG., 1ST SESS. 17, AND
H.R. REP. NO. 1147, 74TH CONG., 1ST SESS. 19-20. 

IN HIS MAJOR SPEECH TO THE SENATE IN SUPPORT OF THE BILL, SENATOR
WAGNER SAID: 

"WHILE OUTLAWING THE ORGANIZATION THAT IS INTERFERED WITH BY THE
EMPLOYER, THIS BILL DOES NOT ESTABLISH THE CLOSED SHOP OR EVEN
ENCOURAGE IT. THE MUCH-DISCUSSED CLOSED-SHOP PROVISO MERELY STATES THAT
NOTHING IN ANY FEDERAL LAW SHALL BE HELD TO ILLEGALIZE THE CONFIRMATION
OF VOLUNTARY CLOSED-SHOP AGREEMENTS BETWEEN EMPLOYERS AND WORKERS."  79
CONG. REC. 7570. 

THE SENATOR WENT ON TO EXPLAIN THE PURPOSE OF THE SECTION AS
DISPELLING MISUNDERSTANDING OF SEC. 7(A) OF THE NATIONAL INDUSTRIAL
RECOVERY ACT, 48 STAT. 198, DENIED EITHER ADVOCACY OR DISAPPROVAL OF
THE CLOSED SHOP, THEN ADDED:    "THE VIRULENT PROPAGANDA TO THE EFFECT
THAT THIS BILL ENCOURAGES THE CLOSED SHOP IS OUTRAGEOUS IN VIEW OF THE
FACT THAT IN TWO RESPECTS IT ACTUALLY NARROWS THE NOW-EXISTING LAW IN
REGARD TO THE CLOSED-SHOP AGREEMENT."  IBID. 

LATER, DURING DISCUSSION OF PROPOSED AMENDMENTS, SENATOR WAGNER
ANSWERED A QUESTION FROM THE FLOOR ABOUT THE EFFECT OF THE PROVISO IN
THE FOLLOWING WORDS: 

"THE PROVISION WILL NOT CHANGE THE STATUS QUO.  THAT IS THE LAW
TODAY; AND WHEREVER IT IS THE LAW TODAY THAT A CLOSED-SHOP AGREEMENT
CAN BE MADE, IT WILL CONTINUE TO BE THE LAW.  BY THIS BILL WE DO NOT
CHANGE THAT SITUATION."  ID. AT 7673. 

EQUALLY CONCLUSIVE IS THE ANSWER BY REPRESENTATIVE CONNERY, MANAGER
OF THE BILL IN THE HOUSE, TO A STATEMENT BY REPRESENTATIVE TABER IN
SUPPORT OF AN AMENDMENT WHICH WOULD HAVE ENTIRELY STRICKEN THE
PROVISO.  REPRESENTATIVE TABER CHARGED THAT THE PROVISO WOULD MAKE IT
POSSIBLE FOR 51% OF THE EMPLOYEES OF ANY ORGANIZATION TO BRING ABOUT
THE DISCHARGE OF THE OTHER 49%.  REPRESENTATIVE CONNERY SAID: 

"MR. CHAIRMAN, I MERELY RISE TO SAY THIS IN OPPOSITION:  THE CLOSED
SHOP PROPOSITION IN THIS BILL DOES NOT REFER TO ANY STATE WHICH HAS ANY
LAW FORBIDDING THE CLOSED SHOP.  IT DOES NOT INTERFERE WITH THAT IN ANY
WAY."  ID. AT 9726. 

NO RULING BY THE COURTS OR THE NATIONAL LABOR RELATIONS BOARD, THE
AGENCY ENTRUSTED WITH ADMINISTRATION OF THE WAGNER ACT, HAS ADOPTED A
CONSTRUCTION OF SEC. 8(3) IN DISREGARD OF THIS LEGISLATIVE HISTORY.  IT
IS SUGGESTED, HOWEVER, THAT THE INTERPRETATION GIVEN THE SECTION BY THE
WAR LABOR BOARD SUPPORTS PETITIONER'S POSITION.  THE BOARD, IT IS TRUE,
IN VIEW OF THE PRACTICAL DESIRABILITY OF THE MAINTENANCE-OF-MEMBERSHIP
CLAUSE IN SETTLING WARTIME DISPUTES OVER UNION SECURITY FOUND AUTHORITY
TO ORDER CONTRACTS CONTAINING SUCH CLAUSES DESPITE INCONSISTENT STATE
LAW.  IT FOUND SUCH AUTHORITY, HOWEVER, NOT IN SEC. 8(3) BUT IN THE
CONCLUSION THAT "ITS POWER TO DIRECT THE PARTIES TO ABIDE BY THE
MAINTENANCE-OF-MEMBERSHIP PROVISION IN SUCH A CASE AS THIS ONE STEMS
DIRECTLY FROM THE WAR POWERS OF THE UNITED STATES GOVERNMENT." 
GREENEBAUM TANNING CO., 10 WAR LAB.  REP.  527, 534.  FN2  THE SUPREME
COURT OF WISCONSIN ITSELF ACKNOWLEDGED THE SUPREMACY OF THE WAR POWER
IN A DECISION SUSPENDING AN ORDER DIRECTING THE REINSTATEMENT OF AN
EMPLOYEE DISCHARGED UNDER A MAINTENANCE-OF-MEMBERSHIP CLAUSE ORDERED BY
THE WAR LABOR BOARD.  INTERNATIONAL BROTHERHOOD OF PAPERMAKERS V.
WISCONSIN E.R. BOARD, 245 WIS. 541, 15 N.W.2D 806.  WHEN THE ORDERS OF
THE WISCONSIN BOARD IN THE PRESENT CASE WERE ENTERED, THE WAR LABOR
BOARD HAD CEASED TO EXIST, EXEC. ORDER NO. 9672, 11 FED. REG. 221, AND,
WITH THE OCCASION THAT HAD CALLED IT INTO BEING, THE NECESSITY FOR
SUPPRESSION OF STATE LAW HAD ALSO COME TO AN END.  FN3 

SINCE WE WOULD BE WHOLLY UNJUSTIFIED, THEREFORE, IN REJECTING THE
LEGISLATIVE INTERPRETATION OF SEC. 8(3) PLACED UPON IT AT THE TIME OF
ITS ENACTMENT, IT IS NOT EVEN NECESSARY TO INVOKE THE PRINCIPLE THAT IN
CASES OF CONCURRENT POWER OVER COMMERCE STATE LAW REMAINS EFFECTIVE SO
LONG AS CONGRESS HAS NOT MANIFESTED AN UNAMBIGUOUS PURPOSE THAT IT
SHOULD BE SUPPLANTED.  SEE, E.G., SINNOT V. DAVENPORT, 22 HOW.  227;
MISSOURI, K. & T.R. CO. V. HABER, 169 U.S. 613.  NOR NEED WE, IF
CONGRESS IN ENACTING SEC. 8(3) DID NOT MEAN TO ENLARGE THE RIGHT TO
BARGAIN FOR UNION SECURITY, CONSIDER CONTENTIONS BASED ON HILL V.
FLORIDA, 325 U.S. 538, TO THE EFFECT THAT IN GUARANTEEING THE RIGHT TO
COLLECTIVE BARGAINING THE NATIONAL LABOR RELATIONS ACT ALSO GUARANTEED
THE RIGHT TO CONTRACT UPON ANY TERMS WHICH ARE COMMONLY THE SUBJECT OF
COLLECTIVE BARGAINING. 

WE COME NOW TO THE QUESTION WHETHER THE TAFT-HARTLEY ACT EXPRESSES A
POLICY INCONSISTENT WITH SEC. 111.06(1)(C) 1 OF THE WISCONSIN
EMPLOYMENT PEACE ACT. 

MARGIN,  FN4  CONTAINS IMPORTANT CHANGES, BUT NONE REQUIRING
MODIFICATION OF THE CONCLUSIONS WE HAVE REACHED AS TO THE CORRESPONDING
REINFORCES THOSE CONCLUSIONS; THAT IS THE PHRASE "INCONSISTENT WITH THE
CORRESPONDING PROVISION OF THIS ACT."  THESE WORDS MUST MEAN THAT
CESSION OF JURISDICTION IS TO TAKE PLACE ONLY WHERE STATE AND FEDERAL
LAWS HAVE PARALLEL PROVISIONS.  WHERE THE STATE AND FEDERAL LAWS DO NOT
OVERLAP, NO CESSION IS NECESSARY BECAUSE THE STATE'S JURISDICTION IS
UNIMPAIRED.  THIS READING IS CONFIRMED BY THE PURPOSE OF THE PROVISO IN
WHICH THE PHRASE IS CONTAINED:  TO MEET SITUATIONS MADE POSSIBLE BY
BETHLEHEM STEEL CO. V. NEW YORK S.L.R.B., 330 U.S. 767, WHERE NO STATE
AGENCY WOULD BE FREE TO TAKE JURISDICTION OF CASES OVER WHICH THE
NATIONAL BOARD HAD DECLINED JURISDICTION.  SEE H.R. REP. NO. 245, 80TH
CONG., 1ST SESS. 40; S. REP. NO. 105, MINORITY VIEWS, PART 2, 80TH
CONG., 1ST SESS. 38. 

OTHER PROVISIONS OF THE TAFT-HARTLEY ACT MAKE IT EVEN CLEARER THAN
THE NATIONAL LABOR RELATIONS ACT THAT THE STATES ARE LEFT FREE TO
PURSUE THEIR OWN MORE RESTRICTIVE POLICIES IN THE MATTER OF UNION
SECURITY AGREEMENTS.  BECAUSE SEC. 8(3) OF THE NEW ACT FORBIDS THE
CLOSED SHOP AND STRICTLY REGULATES THE CONDITIONS UNDER WHICH A UNION
SHOP AGREEMENT MAY BE ENTERED, SEC. 14(B) WAS INCLUDED TO FORESTALL THE
INFERENCE THAT FEDERAL POLICY WAS TO BE EXCLUSIVE.  IT READS: 

"NOTHING IN THIS ACT 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." 

IT IS ARGUED, HOWEVER, THAT THE EFFECT OF THIS SECTION IS TO DISPLACE
STATE LAW WHICH "REGULATES" BUT DOES NOT WHOLLY "PROHIBIT" AGREEMENTS
REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF
EMPLOYMENT.  BUT IF THERE COULD BE ANY DOUBT THAT THE LANGUAGE OF THE
"APPLICATION" OF A UNION-SECURITY CONTRACT, SUCH AS DISCHARGING AN
EMPLOYEE, WHICH UNDER THE CIRCUMSTANCES "IS PROHIBITED" BY THE STATE,
THE LEGISLATIVE HISTORY OF THE SECTION WOULD DISPEL IT.  SEE S. REP.
NO. 105, 80TH CONG., 1ST SESS. 5-7; H.R. REP. NO. 245, 80TH CONG., 1ST
SESS. 9, 34, 40, 44; H.R. CONF. REP. NO. 510, 80TH CONG., 1ST SESS. 60;
93 CONG. REC. 3554, 3559, 4904, 6383-84, 6446; H.R. 3020, 80TH CONG.,
1ST SESS., AS REPORTED, SEC. 13. 

IT REMAINS TO CONSIDER WHETHER CERTIFICATION OF THE UNION BY THE
NATIONAL LABOR RELATIONS BOARD IN 1942 THEREBY FOREVER OUSTED
JURISDICTION OF THE WISCONSIN BOARD TO ENJOIN PRACTICES FORBIDDEN BY
WISCONSIN LAW.  SINCE THE ENUMERATION BY THE WAGNER ACT AND THE TAFT
HARTLEY ACT OF UNFAIR LABOR PRACTICES OVER WHICH THE NATIONAL BOARD HAS
EXCLUSIVE JURISDICTION DOES NOT PREVENT THE STATES FROM ENFORCING THEIR
OWN POLICIES IN MATTERS NOT GOVERNED BY THE FEDERAL LAW, SUCH FREEDOM
OF ACTION BY A STATE CANNOT BE LOST BECAUSE THE NATIONAL BOARD HAS ONCE
HELD AN ELECTION UNDER THE WAGNER ACT.  THE CHARACTER OF ACTIVITIES
LEFT TO STATE REGULATION IS NOT CHANGED BY THE FACT OF CERTIFICATION. 
CERTIFICATION, IT IS TRUE, MAKES CLEAR THAT THE EMPLOYER AND THE UNION
ARE SUBJECT TO FEDERAL LAW, BUT THAT IS NOT DISPUTED.  SO FAR AS THE
RELATIONSHIP OF STATE AND NATIONAL POWER IS CONCERNED, CERTIFICATION
AMOUNTS TO NO MORE THAN AN ASSERTION THAT AS TO THIS EMPLOYER THE STATE
SHALL NOT IMPOSE A POLICY INCONSISTENT WITH NATIONAL POLICY, HILL V.
FLORIDA, 325 U.S. 538, OR THE NATIONAL BOARD'S INTERPRETATION OF THAT
POLICY, BETHLEHEM STEEL CO. V. NEW YORK S.L.R.B., 330 U.S. 767; LA
CROSSE TELEPHONE CORP. V. WISCONSIN E.R.B., 336 U.S. 18.  INDEED, THE
EXPRESS DISCLAIMER IN SEC. 8(3) OF THE NATIONAL LABOR RELATIONS ACT OF
INTENTION TO INTERFERE WITH STATE LAW AND THE PERMISSION GRANTED THE
STATES BY SEC. 14(B) OF THE TAFT-HARTLEY ACT TO CARRY OUT POLICIES
INCONSISTENT WITH THE TAFT-HARTLEY ACT ITSELF, WOULD BE PRACTICALLY
MEANINGLESS IF SO EASILY AVOIDED.  FOR THESE PROVISIONS CAN HAVE
APPLICATION, OBVIOUSLY, ONLY WHERE STATE AND FEDERAL POWER ARE
CONCURRENT; IT WOULD HAVE BEEN FUTILE TO DISCLAIM THE ASSERTION OF
FEDERAL POLICY OVER AREAS WHICH THE COMMERCE POWER DOES NOT REACH. 

SINCE, THEREFORE, THE EFFECT GIVEN THE WISCONSIN EMPLOYMENT PEACE ACT
BY THE JUDGMENT BELOW DOES NOT CONFLICT WITH THE ENACTED POLICIES OF
CONGRESS, THAT JUDGMENT IS AFFIRMED. 

FN1  "SEC.  10.  (A)  THE BOARD IS EMPOWERED, AS HEREINAFTER
PROVIDED, TO PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR LABOR
PRACTICE (LISTED IN SECTION 8) AFFECTING COMMERCE.  THIS POWER SHALL BE
EXCLUSIVE, AND SHALL NOT BE AFFECTED BY ANY OTHER MEANS OF ADJUSTMENT
OR PREVENTION THAT HAS BEEN OR MAY BE ESTABLISHED BY AGREEMENT, CODE,
LAW, OR OTHERWISE." 

FN2  ALTHOUGH SOME LANGUAGE IN THE GREENEBAUM OPINION SEEMS TO POINT
TO AN INTERPRETATION OF SEC. 8(3) INCONSISTENT WITH ITS LEGISLATIVE
HISTORY, SEE 10 WAR LAB.  REP.  AT 542-43, THE BOARD ADOPTED AS ITS OWN
THE CONCLUSION OF ITS GENERAL COUNSEL, MR. LLOYD K. GARRISON, REACHED
IN A FULL-DRESS OPINION WHICH REVIEWED THAT HISTORY.  10 WAR LAB. 
REP.  AT 541.  THE GENERAL COUNSEL HAD SAID:  "THE NATIONAL LABOR
RELATIONS ACT DOES NOT PRECLUDE A GOVERNMENTAL AGENCY FROM ORDERING
MAINTENANCE OF MEMBERSHIP IN SUITABLE CASES FOR THE PURPOSE OF SETTLING
DISPUTES AND STABILIZING INDUSTRIAL RELATIONS IN TIME OF WAR."  12 WAR
LAB.  REP.  IX, XXII.  THE NEXT TWO CASES ORDERING A MAINTENANCE-OF
MEMBERSHIP CONTRACT WHICH WOULD NOT HAVE BEEN PERMITTED BY STATE LAW
DID NOT MENTION THE NATIONAL LABOR RELATIONS ACT.  FAIRBANKS, MORSE &
CO., 11 WAR LAB.  REP.  217; VILTER MFG. CO., 11 WAR LAB.  REP.  332.
IN LATER CASES, THE BOARD ADHERED TO ITS RELIANCE UPON THE WAR POWER. 
U.S. VANADIUM CORP., 13 WAR LAB.  REP.  527; INGALLS IRON WORKS CO., 17
WAR LAB.  REP.  190; CUDAHY BROS. CO., 19 WAR LAB.  REP.  124. 

FN3  THE SIGNIFICANCE OF THE WAR LABOR BOARD'S DETERMINATION OF THE
IMPACT OF FEDERAL POWER ON STATE LAW MUST BE VIEWED IN THE LIGHT OF THE
FACT THAT IT WAS AN AGENCY OF THE WAR ADMINISTRATION ORGANIZED NOT TO
INTERPRET THE CONSTITUTION BUT TO PREVENT INTERRUPTION OF PRODUCTION. 
SEE EXEC. ORDER NO. 9017, 7 FED. REG. 237.  THAT THE TWO ROLES ARE
QUITE DISTINCT IS ILLUSTRATED BY THE POLICY OF THE WAR LABOR BOARD OF
THE FIRST WORLD WAR WHICH OUTLAWED "YELLOWDOG" CONTRACTS FOR THE
DURATION OF THAT WAR, THEREBY IN EFFECT NULLIFYING THIS COURT'S THEN
RECENT DECISION IN HITCHMAN COAL & COKE CO. V. MITCHELL, 245 U.S. 229. 
SEE SMITH & WESSON CO., WAR LAB.  BD. DOCKET NO. 273; GREGG, THE
NATIONAL WAR LABOR BOARD, 33 HARV. L. REV. 39, 54.  THE DIFFERENCE IN
ROLES IS AGAIN EMPHASIZED BY THE RULING OF THE WAR LABOR POLICIES BOARD
OF 1918 THAT ALL GOVERNMENT CONTRACTS SHOULD CONTAIN A CLAUSE
PROHIBITING THE USE OF CHILD LABOR, ALTHOUGH HAMMER V. DAGENHART, 247
U.S. 251, INVALIDATING SUCH A CHILD-LABOR PROVISION, WAS DECIDED WITHIN
A FEW WEEKS AFTER THAT BOARD WAS ESTABLISHED.  SEE 6TH ANN. REP. OF THE
SECRETARY OF LABOR 114(1918); 7TH ANN. REP. OF THE SECRETARY OF LABOR
126(1919); REPORT ON INTERNATIONAL LABOR STANDARDS 43(PREPARED IN 1918
BY THE WAR LABOR POLICIES BOARD, UNDATED). 

FN4  "SEC.  10.  (A) THE BOARD IS EMPOWERED, AS HEREINAFTER PROVIDED,
TO PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE
(LISTED IN SECTION 8) AFFECTING COMMERCE.  THIS POWER SHALL NOT BE
AFFECTED BY ANY OTHER MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN
OR MAY BE ESTABLISHED BY AGREEMENT, LAW, OR OTHERWISE:  PROVIDED, THAT
THE BOARD IS EMPOWERED BY AGREEMENT WITH ANY AGENCY OF ANY STATE OR
TERRITORY TO CEDE TO SUCH AGENCY JURISDICTION OVER ANY CASES IN ANY
INDUSTRY (OTHER THAN MINING, MANUFACTURING, COMMUNICATIONS, AND
TRANSPORTATION EXCEPT WHERE PREDOMINANTLY LOCAL IN CHARACTER) EVEN
THOUGH SUCH CASES MAY INVOLVE LABOR DISPUTES AFFECTING COMMERCE, UNLESS
THE PROVISION OF THE STATE OR TERRITORIAL STATUTE APPLICABLE TO THE
DETERMINATION OF SUCH CASES BY SUCH AGENCY IS INCONSISTENT WITH THE
CORRESPONDING PROVISION OF THIS ACT OR HAS RECEIVED A CONSTRUCTION
INCONSISTENT THEREWITH." 

MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE CONCUR IN THE RESULT. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

THE DECISION JUST RENDERED HOLDS THAT THE STATE OF WISCONSIN CAN
COMPEL THE PETITIONER TO PAY UNEARNED BACK WAGES TO AN EMPLOYEE FOUND
TO HAVE BEEN DISCHARGED BY PETITIONER UNDER THE TERMS OF A COLLECTIVE
BARGAINING AGREEMENT WHICH REQUIRED SUCH DISCHARGE.  THE PETITIONER HAD
ORIGINALLY ENTERED INTO THE AGREEMENT IN RESPONSE TO IRRESISTIBLE
PRESSURE BY THE UNITED STATES GOVERNMENT.  252 WIS. 549, 559, 32 N.W.2D
417.  THE CIRCUMSTANCES UNDER WHICH THE CONTRACT WAS MADE WERE THESE: 

FROM 1938 TO 1943 THE COMPANY AND THE UNION WERE IN AN ALMOST
CONSTANT WRANGLE.  THE CHIEF BONE OF CONTROVERSY THROUGHOUT THIS FIVE
YEAR PERIOD WAS THE UNION'S DEMAND FOR A "CLOSED SHOP."  PETITIONER
RESOLUTELY FOUGHT FOR AN "OPEN SHOP."  IN 1938 THE UNION TOOK ITS CAUSE
TO THE NATIONAL LABOR RELATIONS BOARD.  AFTER A LONG HEARING OF WHICH
THE CLOSED SHOP ISSUE WAS A PROMINENT PHASE, THAT BOARD IN 1940 ORDERED
PETITIONER TO BARGAIN WITH THE UNION ON THE PENDING ISSUES.  ALGOMA
PLYWOOD CO., 26 N.L.R.B. 975, 980, 1002(1940).  THE COURT OF APPEALS,
REFERRING TO THE CLOSED SHOP QUESTION AS THE "MAIN STUMBLING BLOCK"
BETWEEN PETITIONER AND THE UNION, REFUSED TO ENFORCE THE ORDER ON THE
GROUND THAT IT WAS NOT CLEAR THAT THE UNION REPRESENTED A MAJORITY OF
PETITIONER'S EMPLOYEES.  LABOR BOARD V. ALGOMA PLYWOOD CO., 121 F.2D
602, 606, 611.  THEREAFTER, EARLY IN 1942, PETITIONER APPEALED TO THE
WISCONSIN EMPLOYMENT RELATIONS BOARD TO CONDUCT AN ELECTION.  THE UNION
WENT TO THE NATIONAL BOARD; PETITIONER WITHDREW ITS STATE BOARD
APPLICATION; THE NATIONAL BOARD CONDUCTED AN ELECTION; THE UNION WON,
AND THE OLD CLOSED SHOP CONTROVERSY WAS RENEWED WITH INCREASED
INTENSITY.    THE UNION APPEALED TO THE NATIONAL WAR LABOR BOARD TO
SETTLE THE CLOSED SHOP DISPUTE.  THAT BOARD, IN COLLABORATION WITH THE
UNITED STATES DEPARTMENT OF LABOR, PUT PRESSURE ON PETITIONER TO YIELD
TO THE UNION'S DEMANDS.  PETITIONER WAS INFORMED THAT UNLESS IT AGREED
TO A MAINTENANCE OF MEMBERSHIP CLAUSE, WHICH WAS AT THE TIME FORBIDDEN
BY WISCONSIN LAW, THE CLAUSE "WOULD BE PUT IN BY THE WAR LABOR BOARD
ANYHOW" SINCE INCLUSION OF SUCH PROVISIONS WAS A PART OF THAT BOARD'S
NATIONAL POLICY.  THUS FIRED AT FROM ONE SIDE BY THE STATE AND FROM THE
OTHER SIDE BY POWERFUL FEDERAL AGENCIES, PETITIONER HAD TO FLEE TO ONE
SIDE OR THE OTHER.  NEITHER SIDE OFFERED A SAFE SANCTUARY.  IN WEIGHING
THE CONFLICTING CONSIDERATIONS, PETITIONER NOT UNREASONABLY FOUND THE
SCALES TIPPED ON THE UNITED STATES' SIDE.  HAD PETITIONER REFUSED THE
DEMANDS OF THE FEDERAL AGENCY, THE GOVERNMENT COULD AND MIGHT HAVE
SEIZED AND OPERATED ITS PLANTS.  FN1  FURTHERMORE, PETITIONER'S
EMPLOYEES MIGHT HAVE STOPPED WORK.  IN RESPONSE TO ITS BEST JUDGMENT,
THOUGH CONTRARY TO ITS OWN STRONG DESIRES, PETITIONER FINALLY YIELDED
TO THE FEDERAL GOVERNMENT'S DEMANDS AND AGREED TO THE UNION'S TERMS. 
JANUARY 23, 1943, A COLLECTIVE BARGAINING AGREEMENT WAS EXECUTED WHICH
CONTAINED THE CONTROVERSIAL MAINTENANCE OF UNION MEMBERSHIP CLAUSE AND
AN AUTOMATIC EXTENSION CLAUSE.  THIS CONTRACT WAS APPROVED BY THE WAR
LABOR BOARD.  THE CONTROVERSIAL CLAUSE WAS EXTENDED AUTOMATICALLY FROM
YEAR TO YEAR AND WAS IN EFFECT WHEN THE ALLEGED DISCHARGE TOOK PLACE. 
THE COURT APPARENTLY CONCEDES THAT THIS CLAUSE OF THE COLLECTIVE
BARGAINING CONTRACT WAS VALID WHEN PETITIONER ENTERED INTO IT UNDER
FEDERAL COMPULSION.  IN MY JUDGMENT IT WAS EQUALLY VALID WHEN THE
EMPLOYEE WAS DISCHARGED UNDER IT.  IT SEEMS AT LEAST A QUESTIONABLE
INTERPRETATION OF FEDERAL STATUTORY POLICY FOR THIS COURT - A FEDERAL
TRIBUNAL - TO HOLD THAT A STATE IS FREE TO IMPOSE A MONEY PENALTY ON
THIS COMPANY FOR ACTING IN OBEDIENCE TO A CONTRACT WHICH A FEDERAL
AGENCY VALIDLY COMPELLED IT TO MAKE.  FN2

 I. 

THE COURT'S CONCESSION THAT THE CONTRACT WAS VALID WHEN MADE RESTS ON
THE PREMISE THAT THE STATUTE CREATING THE WAR LABOR BOARD STEMMED FROM
THE WAR POWER OF CONGRESS AND THAT UNDER THIS POWER THE WAR LABOR BOARD
COULD, AS IT DID, FORCE PETITIONER TO MAKE THE CONTRACT.  GREENEBAUM
TANNING CO., 10 WAR LAB.  REP.  527.  BUT, SAYS THE COURT, WHEN
WISCONSIN ENTERED THE BACK-PAY ORDER, THE WAR LABOR BOARD HAD CEASED TO
EXIST AND ON ITS DISSOLUTION ON JANUARY 4, 1946, WISCONSIN BECAME
POSSESSED OF THE POWER TO ORDER PETITIONER TO BREAK HIS CONTRACT.  IN
OTHER WORDS, THE HOLDING SEEMS TO BE THAT THE DISCONTINUANCE OF THE WAR
LABOR BOARD AUTOMATICALLY AND INSTANTLY EMPOWERED THE STATES TO IMPAIR
AND NULLIFY ALL COLLECTIVE BARGAINING CONTRACTS ENTERED INTO UNDER
AUTHORITY OF THE SUPREME FEDERAL POLICY EMBODIED IN THE NATIONAL WAR
LABOR BOARD ACT.  FOR SEVERAL REASONS, I CANNOT AGREE. 

1.  THE TERMINATION OF THE WAR LABOR BOARD WAS ACCOMPLISHED BY
EXECUTIVE ORDER OF THE PRESIDENT, NO. 9672.  11 FED. REG. 221.  BUT
THERE IS NOTHING IN THAT EXECUTIVE ORDER THAT INDICATES A PURPOSE TO
AUTHORIZE INVALIDATION OF CONTRACTS MADE UNDER THE BOARD'S DIRECTIONS. 
A CONTRARY PURPOSE IS INDICATED.  THE EXECUTIVE ORDER ESTABLISHED THE
NATIONAL WAGE STABILIZATION BOARD.  AS THE NAME OF THAT BOARD
INDICATES, IT WAS ESTABLISHED TO EXERCISE FUNCTIONS IN CONNECTION WITH
WAGE DISPUTES WHICH MIGHT ADVERSELY AFFECT THE NATIONAL ECONOMY.  FOR
THE LIMITED PURPOSES ENUMERATED IN THE ORDER THE NEW BOARD WAS VESTED
WITH ALL THE "POWERS, FUNCTIONS, AND RESPONSIBILITIES OF THE NATIONAL
WAR LABOR BOARD.  ...  "  WHILE SCOPE FOR OPERATION OF THESE POWERS WAS
WITHIN MORE NARROW LIMITS THAN HAD BEEN THE SCOPE OF THE WAR LABOR
BOARD'S POWERS, THE CREATION OF THIS NEW BOARD NEGATIVES ANY POSSIBLE
CONTENTION THAT DISSOLUTION OF THE WAR LABOR BOARD SHOWED AN INTENTION
TO PERMIT STATES TO INVALIDATE PREVIOUSLY EXECUTED LEGAL CONTRACTS
APPROVED BY THE WAR LABOR BOARD IN THE INTERESTS OF INDUSTRIAL PEACE. 
AND FAR FROM INDICATING A PRESIDENTIAL BELIEF THAT WAGE STABILIZATION
AND INDUSTRIAL PEACE WERE NO LONGER ESSENTIAL IN THE WAR EMERGENCY
PERIOD, THE NEW EXECUTIVE ORDER, AS HAD THE OLD, RESTED ON THE WAR
POWER AND THE STATUTES THAT HAD STEMMED FROM IT.  THE WAR LABOR BOARD
WAS CREATED TO IMPLEMENT A CONGRESSIONAL WAR POLICY EXPRESSED IN PART
IN THE WAR LABOR DISPUTES ACT.  57 STAT. 163.  THE BOARD'S DISSOLUTION
COULD NOT DETRACT FROM THE FORCE OF THE STATUTE OR FROM THE
CONGRESSIONAL WAR POWER.  SEE KELLY V. WASHINGTON, 302 U.S. 1, 14. 
THIS EXECUTIVE ORDER RECOGNIZED THE CONTINUED EXISTENCE OF CONDITIONS
THAT CALLED FOR THE FURTHER EXERCISE OF WAR POWERS.  IT WAS PROMULGATED
JANUARY 4, 1946.  THE LAST AUTOMATIC EXTENSION OF THE COMPELLED
CONTRACT WAS APRIL 4, 1946.  THIS AUTOMATICALLY EXTENDED CONTRACT WAS
THE BASIS FOR THE DISCHARGE.  UNDER THE FOREGOING CIRCUMSTANCES I
CANNOT AGREE THAT DISSOLUTION OF THE WAR LABOR BOARD AUTHORIZED
WISCONSIN TO PUNISH PETITIONER FOR ITS CONTINUED OBSERVANCE OF THE
CONTRACT. 

2.  THAT THE PRESIDENT CORRECTLY ASSUMED THE CONTINUED EXISTENCE OF
WAR POWERS AFTER THE CESSATION OF HOSTILITIES SEEMS BEYOND QUESTION IN
THE LIGHT OF THIS COURT'S HOLDING IN LUDECKE V. WATKINS, 335 U.S. 160,
166-170.  THE HOLDING IN THE LUDECKE CASE WAS THAT THE WAR HAD NOT AT
THAT TIME OFFICIALLY ENDED AND THAT THE CONGRESSIONAL WAR POWER STILL
EXISTED IN MAY, 1947.  THIS WAS LONG AFTER THE DISSOLUTION OF THE WAR
LABOR BOARD AND THE EMPLOYEE'S DISCHARGE.  IN LIGHT OF THE 1947 LUDECKE
HOLDING IT SEEMS ODD THAT DISSOLUTION OF THE WAR LABOR BOARD SHOULD NOW
BE HELD AN ADEQUATE REASON FOR PERMITTING A STATE IN 1947 TO INVALIDATE
CONTRACTS PREVIOUSLY ENTERED INTO IN OBEDIENCE TO FEDERAL COMMANDS MADE
UNDER A VALID FEDERAL LAW ROOTED IN THE WAR POWER.  IT SEEMS TO ME THAT
THE COURT'S HOLDING TODAY CAN BE JUSTIFIED IF AT ALL ONLY BY ADOPTING
THE HOLDING OF THE WISCONSIN SUPREME COURT IN THIS CASE.  THAT COURT
SUPPORTED THE STATE PENALTY IMPOSED ON PETITIONER BY CONCLUDING THAT
THE NATIONAL WAR LABOR BOARD'S ACTION WAS ULTRA VIRES.  ITS REASONING
WAS THAT NATIONAL WAR POWERS HAD "ENDED" IN 1946.  252 WIS. AT 560, 32
N.W.2D 522.  BUT IN THE LUDECKE CASE THIS COURT HELD THOSE POWERS STILL
EXISTED IN 1947.  THE RESULT HERE IS ALL THE MORE INEXPLICABLE WHEN IT
IS CONSIDERED THAT WHOLESALE INVALIDATION OF THOSE FEDERALLY AUTHORIZED
CONTRACTS COULD RESULT IN SERIOUS INDUSTRIAL CONFLICTS AT A TIME WHEN
INDUSTRIAL RELATIONSHIPS WERE EXTREMELY STRAINED DUE TO THE TRANSITION
FROM A WAR TO A PEACE ECONOMY.  WOODS V. MILLER CO., 333 U.S. 138,
144. 

3.  I SUPPOSE IT CANNOT BE DENIED THAT CONGRESSIONAL AUTHORITY TO
FORCE CONTRACTS UNDER THE WAR POWER CARRIES WITH IT AUTHORITY TO
PROVIDE THAT (AT LEAST DURING THE EXISTENCE OF THE WAR POWER) THE
OBLIGATIONS ASSUMED UNDER THOSE CONTRACTS SHOULD BE FAITHFULLY OBSERVED
AND THAT THE CONTRACTS SHOULD BE INVULNERABLE TO STATE ATTACK.  IN THIS
VIEW AFTER THE WAR LABOR BOARD CEASED TO EXIST AND BEFORE PEACE HAD
BEEN OFFICIALLY DECLARED, CONGRESS UNDER THE WAR POWER DOUBTLESS COULD
HAVE MADE IT POSSIBLE UNDER ENUMERATED CONTINGENCIES FOR STATES TO
INVALIDATE CONTRACTS SUCH AS THIS ONE.  BUT NO SUGGESTION HAS BEEN MADE
THAT ANY STATUTORY LANGUAGE OF CONGRESS CAN BE STRETCHED FAR ENOUGH TO
FIND SUCH CONGRESSIONAL INTENT.  SINCE NO SUCH INTENT HAS BEEN
MANIFESTED, IT SEEMS FAIR TO ASSUME THAT CONGRESS INTENDED THAT SUCH
CONTRACTS SHOULD REMAIN IMMUNE FROM STATE ATTACK AND CONTINUE IN FORCE
UNLESS TERMINATED UNDER THEIR VALID PROVISIONS.  I WOULD THEREFORE HOLD
THAT PETITIONER WAS OBLIGATED TO CONTINUE TO OBSERVE THE TERMS OF THE
CONTRACT UNTIL TERMINATED ACCORDING TO ITS PROVISIONS. 

THE CONTRACT HAD NOT TERMINATED WHEN THE WAR LABOR BOARD CEASED TO
EXIST.  IT HAD BEEN GIVEN CONTINUED VITALITY UNDER ITS OWN ORIGINAL
TERMS, TERMS WHICH MUST BE INTERPRETED UNDER CONTROLLING FEDERAL LAW
AUTHORIZING THE CONTRACT'S CREATION.  I MAY ASSUME AT THIS POINT THAT
THE CONTRACT WAS INVULNERABLE TO STATE IMPAIRMENT OR NULLIFICATION ONLY
BECAUSE OF CONGRESSIONAL AUTHORITY STEMMING FROM THE WAR POWER.  EVEN
SO AND DESPITE THE DISSOLUTION OF THE WAR LABOR BOARD, I THINK THE
STATE WAS WITHOUT POWER TO PENALIZE PETITIONER FOR OBSERVANCE OF THE
CONTRACT, AT LEAST DURING THE PERIOD IN WHICH THE WAR HAD NOT
OFFICIALLY ENDED. 

                                 II. 

IT IS APPARENT THAT THE WISCONSIN STATUTE AS HERE APPLIED DEPRIVES
PETITIONER AND HIS EMPLOYEES OF A SUBSTANTIAL FEDERAL RIGHT IF SEC.
8(3) OF THE NATIONAL LABOR RELATIONS ACT  FN3 AUTHORIZED UNION
MEMBERSHIP MAINTENANCE AGREEMENTS WITHOUT REGARD TO CONTRARY STATE
POLICIES.  FOR GIVEN THAT INTERPRETATION OF SEC. 8(3), THE WISCONSIN
ACT WOULD NOT ONLY IMPAIR COLLECTIVE BARGAINING RIGHTS PROTECTED BY
SEC. 8(3); FN4  IT WOULD ALSO STAND "AS AN OBSTACLE TO THE
ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF
CONGRESS."  HILL V. FLORIDA, 325 U.S. 538, 542; BETHLEHEM STEEL CO. V.
NEW YORK LABOR BD., 330 U.S. 767, 775-776. 

THE WISCONSIN EMPLOYMENT RELATIONS BOARD BEGAN PROCEEDINGS AGAINST
THE PETITIONER ELEVEN YEARS AFTER PASSAGE OF THE NATIONAL LABOR
RELATIONS ACT.  DURING THAT ENTIRE ELEVEN-YEAR PERIOD IT SEEMS TO HAVE
BEEN GENERALLY ASSUMED THAT SEC. 8(3) WAS AN UNEQUIVOCAL FEDERAL
AUTHORIZATION FOR COLLECTIVE BARGAINING PROVISIONS OF THE TYPE HERE
MADE.  THIS COURT HAD NOTICED THAT SUCH PROVISIONS WERE "FREQUENT
SUBJECTS OF NEGOTIATION BETWEEN EMPLOYERS AND EMPLOYEES," AND HAD
STRONGLY INDICATED THAT IT WAS AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER
TO REFUSE TO BARGAIN CONCERNING THEM.  NATIONAL LICORICE CO. V. LABOR
BOARD, 309 U.S. 350, 360.  BOTH THE COURTS AND THE NATIONAL LABOR
RELATIONS BOARD HAVE HELD THAT EFFORTS OF EMPLOYERS TO FRUSTRATE THE
RIGHT OF UNIONS TO BARGAIN FOR EXCLUSIVE UNION EMPLOYMENT CONSTITUTED A
VIOLATION OF THE FEDERAL ACT FOR WHICH EMPLOYERS COULD BE HELD
ACCOUNTABLE.  FN5 

THE ACTION OF THE UNITED STATES DEPARTMENT OF LABOR AND THE NATIONAL
WAR LABOR BOARD IN FORCING THIS PETITIONER TO ACCEPT A MAINTENANCE OF
MEMBERSHIP PROVISION IN ITS COLLECTIVE BARGAINING AGREEMENT WAS NOT THE
RESULT OF AN ISOLATED OR HAPHAZARD INTERPRETATION OF SEC. 8(3) OF THE
NATIONAL LABOR RELATIONS ACT.  THE ACTION FORCED UPON PETITIONER WAS
PURSUANT TO A THOROUGHLY CONSIDERED AND WELL-ESTABLISHED POLICY OF THE
NATIONAL WAR LABOR BOARD.  FN6  BOTH THE NATIONAL WAR LABOR BOARD AND
THE CONCILIATION DIVISION OF THE UNITED STATES DEPARTMENT OF LABOR WERE
CHARGED WITH SPECIAL DUTIES IN REGARD TO LABOR DISPUTES BY THE WAR
LABOR DISPUTES ACT OF JUNE 25, 1943, 57 STAT. 163, 50 U.S.C. APP. SECS.
1501-1511.  AND THE WAR LABOR DISPUTES ACT REQUIRED BOTH THESE FEDERAL
AGENCIES TO CONFORM TO THE PROVISIONS OF THE NATIONAL LABOR RELATIONS
ACT.  IN ORDER THAT THESE GOVERNMENT AGENCIES MIGHT BE BETTER ABLE TO
CARRY OUT THEIR STATUTORY DUTY OF CONFORMING TO THE NATIONAL LABOR
RELATIONS ACT, AN INTERDEPARTMENTAL COMMITTEE WAS ESTABLISHED.  IT
CONSISTED OF REPRESENTATIVES OF THE NATIONAL LABOR RELATIONS BOARD, THE
DEPARTMENT OF LABOR, AND THE NATIONAL WAR LABOR BOARD.  THIS COMMITTEE
WAS VESTED WITH POWER TO DISCUSS AND CONSIDER POLICY QUESTIONS AND
OTHER PROBLEMS RELATING TO ADMINISTRATION OF THE DUTIES OF THE NATIONAL
LABOR RELATIONS BOARD AND THE NATIONAL WAR LABOR BOARD.  THIS POWER WAS
EXERCISED.  REP. N.L.R.B. 74(1943). 

AS EARLY AS APRIL, 1942, THE NATIONAL WAR LABOR BOARD IN THE LITTLE
STEEL COMPANIES' CONTROVERSY, 1 WAR LAB.  REP.  325, ASSERTED ITS POWER
TO REQUIRE THAT CONTRACTS FOR MAINTENANCE OF UNION MEMBERSHIP BE
INSERTED IN COLLECTIVE BARGAINING AGREEMENTS.  IT REACHED THE
CONCLUSION, SEE PP. 354-356, THAT SUCH COLLECTIVE BARGAINING PROVISIONS
WERE VALID BECAUSE THEY FELL WITHIN THE PROVISO OF SEC. 8(3) OF THE
NATIONAL LABOR RELATIONS ACT.  FROM THEN ON UNTIL 1945, WHEN ITS LAST
DECISIONS WERE MADE, THE NATIONAL WAR LABOR BOARD CONTINUED TO REQUIRE
MAINTENANCE OF MEMBERSHIP CONTRACTS.  FN7 

THE MOST EXTENSIVE DISCUSSION OF THE QUESTION DIRECTLY INVOLVED IN
THIS CASE OCCURRED IN THE NATIONAL WAR LABOR BOARD'S OPINION IN
GREENEBAUM TANNING CO., 10 WAR LAB.  REP.  527.  GREENEBAUM TANNING
CO., A WISCONSIN BUSINESS, WAS ENGAGED IN INTERSTATE COMMERCE AND
THEREFORE WAS COVERED BY THE NATIONAL LABOR RELATIONS ACT.  IN THE
GREENEBAUM CASE, THE NATIONAL WAR LABOR BOARD HAD TO DECIDE WHETHER IT
COULD ENFORCE A MAINTENANCE OF UNION MEMBERSHIP CONTRACT IN WISCONSIN
CONTRARY TO THE PROVISIONS OF THE VERY WISCONSIN STATUTE RELIED ON BY
THE WISCONSIN BOARD IN THIS CASE.  IT WAS DECIDED OVER THE STRENUOUS
OBJECTION OF THE COMPANY THAT THE NATIONAL WAR LABOR BOARD HAD POWER TO
ENFORCE CONTRACTS SUCH AS PETITIONER MADE HERE, DESPITE THE CONFLICTING
WISCONSIN STATUTE N8.  THE BOARD FOUND ITS POWER TO OVERRIDE THE STATE
LAW IN THE WAR POWERS OF THE PRESIDENT, THE WAR LABOR DISPUTES ACT, AND
THE NATIONAL LABOR RELATIONS ACT.  THE NATIONAL WAR LABOR BOARD POINTED
OUT IN THE GREENEBAUM DECISION THAT, AT THE REQUEST OF THE PRESIDENT OF
THE UNITED STATES, IT HAD FIRST CONSIDERED WITH THE NATIONAL LABOR
RELATIONS BOARD THE QUESTIONS OF THE POWER OF THESE BOARDS IN CASES
SUCH AS THE GREENEBAUM CASE.  IN HOLDING THAT SEC. 8(3) OF THE NATIONAL
LABOR RELATIONS ACT GRANTED THE EMPLOYERS AND EMPLOYEES THE RIGHT TO
MAKE MAINTENANCE OF UNION MEMBERSHIP AGREEMENTS, THE BOARD AT P. 543
STATED:  "THE BOARD IS SATISFIED THAT, WERE IT NOT FOR THE EXISTENCE OF
THE WAR EMERGENCY, THE EMPLOYEES INVOLVED IN THIS CASE WOULD HAVE HAD
THE RIGHT TO DEMAND MAINTENANCE OF MEMBERSHIP IN FAVOR OF THE
DESIGNATED REPRESENTATIVE OF A MAJORITY OF EMPLOYEES.  THIS RIGHT IS
GRANTED TO THE EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT, AND IS
A RIGHT WHICH COULD BE ENFORCED IN PEACE-TIME BY THE STRIKE.  IF THE
WISCONSIN EMPLOYMENT PEACE ACT REQUIRES MORE THAN A MAJORITY OF
EMPLOYEES TO VOTE FOR MAINTENANCE OF MEMBERSHIP UNDER THOSE
CIRCUMSTANCES, IT MUST BE SUBORDINATED TO THE PROVISIONS OF THE
NATIONAL LABOR RELATIONS ACT."    THE FOREGOING IS EVIDENCE THAT UP TO
THE TIME THE TAFT-HARTLEY ACT WAS PASSED BY CONGRESS IN 1947, SEC. 8(3)
OF THE NATIONAL LABOR RELATIONS ACT HAD BEEN ACCEPTED BY GOVERNMENT
AGENCIES AS AN UNEQUIVOCAL AUTHORIZATION FOR MAINTENANCE OF UNION
MEMBERSHIP CONTRACTS.  THE TAFT-HARTLEY ACT EXPRESSLY GRANTED THE
STATES MORE LEEWAY IN REGARD TO ENFORCEMENT OF THEIR OWN POLICIES AS TO
CONTRACTS OF THE TYPE HERE INVOLVED.  61 STAT. 136, 151, 29 U.S.C. SEC.
164.  AND THE NATIONAL LABOR RELATIONS BOARD HAS NOW CONSTRUED THE NEW
FEDERAL ACT AS PRECLUDING SUCH CONTRACTS TO THE SAME EXTENT THAT THEY
ARE PRECLUDED BY STATE LAW.  FN9 BUT IT IS SIGNIFICANT THAT THIS
INTERPRETATION RESTED ENTIRELY ON THE LANGUAGE AND LEGISLATIVE HISTORY
OF THE TAFT-HARTLEY ACT.  THE BOARD DID NOT INDICATE ANY BELIEF THAT
THIS PHASE OF THE NEW TAFT-HARTLEY ACT WAS A MERE CLARIFICATION OF THE
OLD ACT. 

THUS, UP TO 1943, WHEN PETITIONER ORIGINALLY MADE THIS CONTRACT, AND
UP TO 1946 WHEN IT WAS AUTOMATICALLY RENEWED, ALL INDICATIONS WERE THAT
SEC. 8(3) AUTHORIZED THE TYPE OF CONTRACT WHICH FEDERAL AUTHORITIES
PRACTICALLY COMMANDED PETITIONER TO ACCEPT.  THERE SEEMED TO BE NO
REASON THEN WHY PETITIONER OR ANY OTHER EMPLOYER SHOULD ANTICIPATE THAT
SEC. 8(3) WOULD BE CONSTRUED TO PERMIT STATES TO NULLIFY COLLECTIVE
BARGAINING RIGHTS WHICH THAT SECTION WAS GENERALLY SUPPOSED TO HAVE
RECOGNIZED.  IT IS APPARENT FROM THIS RECORD THAT PETITIONER ENTERED
INTO THE CONTRACT AND PERMITTED ITS AUTOMATIC RENEWAL IN THE BELIEF
THAT SEC. 8(3) DEPRIVED THE STATE OF POWER TO ENFORCE ITS POLICY AND
THAT PETITIONER'S RELUCTANT ACTION WAS DUE TO PRESSURE INCIDENT TO THE
THEN ACCEPTED INTERPRETATION OF SEC. 8(3). 

NEVERTHELESS, THE COURT NOW, AFTER SEC. 8(3) IS NO LONGER THE LAW,
GIVES IT AN ENTIRELY NEW AND APPARENTLY WHOLLY UNANTICIPATED
INTERPRETATION.  WHETHER SUCH NEW INTERPRETATION WILL AFFECT THE PAST
CONDUCT OF ANY PERSONS OTHER THAN THE PARTIES TO THIS ACTION WE DO NOT
KNOW.  WE DO KNOW THAT A NEW INTERPRETATION WILL IMPOSE PENALTIES ON
THIS EMPLOYER FOR CONDUCT PRESSED UPON IT BY FEDERAL LABOR AUTHORITIES
UNDER AUTHORITY OF THE FEDERAL ACT. 

THE NEW INTERPRETATION GIVEN SEC. 8(3) BY THE COURT RESTS ON THE
CONCLUSION THAT THE LEGISLATIVE HISTORY OF THE ACT SHOWS THAT CONGRESS
INTENDED TO LEAVE STATES FREE TO BAR THE TYPE OF CONTRACT HERE
INVOLVED.  THE COMMITTEE REPORTS AND LEGISLATIVE COMMENTS ON THE
NATIONAL ACT SET OUT IN THE COURT'S OPINION DO LEND STRONG SUPPORT TO
THIS CONTENTION.  IN THE LIGHT OF THIS LEGISLATIVE HISTORY, I WOULD
JOIN IN THE COURT'S INTERPRETATION OF SEC. 8(3) IF WE WERE INTERPRETING
THAT SECTION ON A CLEAN SLATE.  BUT WE ARE NOT.  THE SECTION HAS A
HISTORY OF ADMINISTRATIVE INTERPRETATION COUNTER TO THE ONE THAT THE
COURT GIVES IT TODAY.  THE LANGUAGE OF SEC. 8(3)  FN10 IS REASONABLY
SUSCEPTIBLE OF THE INTERPRETATION THE SECTION WAS GIVEN BY THE
CONCILIATION DIVISION OF THE UNITED STATES DEPARTMENT OF LABOR AND BY
THE NATIONAL WAR LABOR BOARD, AN INTERPRETATION TO WHICH THE NATIONAL
LABOR RELATIONS BOARD APPEARS TO HAVE ASSENTED.  AND, AS PREVIOUSLY
POINTED OUT, THE NATIONAL LABOR RELATIONS BOARD HELD THIS VERY
PETITIONER GUILTY OF AN UNFAIR LABOR PRACTICE FOR ITS REFUSAL TO
BARGAIN WITH ITS WISCONSIN EMPLOYEES ON THEIR DEMAND FOR A CLOSED
SHOP.  ALGOMA PLYWOOD CO., SUPRA AT 994, 998.  THIS N.L.R.B. FINDING
WAS IN 1940, A YEAR AFTER THE PASSAGE OF THE WISCONSIN ACT HERE HELD
CONTROLLING.  I THINK A CHANGE IN THE INTERPRETATION OF SEC. 8(3)
SHOULD NOT BE MADE AT THIS LATE DATE, WHEN THE SECTION IS NO LONGER THE
LAW, MERELY TO INVALIDATE A CONTRACT MADE UNDER FEDERAL COMPULSION AND
FOUNDED ON A JUSTIFIABLE BELIEF THAT SEC. 8(3) AUTHORIZED THE
CONTRACT.  I WOULD NOT MAKE A TRAP OF THIS SETTLED ADMINISTRATIVE
INTERPRETATION BY SUBJECTING THIS EMPLOYER TO PENAL DAMAGES FOR HIS
GOOD FAITH RELIANCE ON IT. SEE LABOR BOARD V. HEARST PUBLICATIONS, 322
U.S. 111, 123. 

I WOULD REVERSE THIS JUDGMENT. 

FN1  THE DIRE CONSEQUENCES OF A VIOLATION OF A BOARD ORDER IS
ILLUSTRATED BY UNITED STATES V. MONTGOMERY WARD, 150 F.2D 369.  THIS
COURT GRANTED CERTIORARI AND ORDERED THE JUDGMENT VACATED ON THE GROUND
THAT THE CAUSE HAD BECOME MOOT.  326 U.S. 690.  IN THIS CASE MONTGOMERY
WARD REFUSED TO CARRY OUT AN ORDER OF THE WAR LABOR BOARD.  ONE OF THE
SUBJECTS OF THE ORDER WAS A MAINTENANCE OF MEMBERSHIP CLAUSE SIMILAR TO
THE ONE INVOLVED IN THIS CASE.  THE ACTION IN THIS MONTGOMERY WARD CASE
WAS BROUGHT BY THE UNITED STATES TO TEST THE LEGALITY OF AN ORDER OF
THE PRESIDENT OF THE UNITED STATES DIRECTING SEIZURE OF THE PROPERTIES
OF MONTGOMERY WARD BECAUSE OF THE REFUSAL OF THAT COMPANY TO OBEY THE
BOARD'S ORDER.  THE COURT OF APPEALS UPHELD THE LEGALITY OF THE SEIZURE
ORDER.  SEE ALSO NATIONAL WAR LABOR BD. V. MONTGOMERY WARD, 79 U.S.
APP. D.C. 200, 144 F.2D 528; AND UNITED STATES V. MONTGOMERY WARD, 58
F.SUPP.  408. 

FN2  THE WISCONSIN TRIAL COURT REFUSED TO IMPOSE THIS "PENALTY" ON
PETITIONER.  IT FOUND THE "EQUITIES" ON PETITIONER'S SIDE.  THE STATE
SUPREME COURT HELD THAT THE COMPULSION UNDER WHICH PETITIONER HAD ACTED
COULD NOT RELIEVE HIM FROM THE STATE PENALTY WHICH WAS IMPOSED TO
"RETARD THE EMPLOYER'S INCLINATION TO YIELD TO THIS COMPULSION IN THE
FUTURE."  252 WIS. 549, 561, 32 N.W.2D 417, 423.  IN OTHER WORDS THE
PENALTY WAS IMPOSED AS A WARNING TO PETITIONER AND OTHERS THAT
CONTINUED COMPLIANCE WITH THE FEDERAL POLICY WOULD SUBJECT THEM TO
PENALTIES IN WISCONSIN. 

FN3  SEE NOTE 10, P. 326. 

FN4  SEE ALLEN-BRADLEY LOCAL V. WISCONSIN EMPLOYMENT BOARD, 315 U.S.
740, 751. 

FN5  LABOR BOARD V. REED & PRINCE MFG. CO., 118 F.2D 874, 883;
PENINSULAR & OCCIDENTAL S.S. CO. V. LABOR BOARD, 98 F.2D 411, 414.  IN
1944 THE NATIONAL LABOR RELATIONS BOARD HELD THAT AN EMPLOYER WAS
GUILTY OF AN UNFAIR LABOR PRACTICE WHERE IT REFUSED TO NEGOTIATE WITH
THE UNION'S COLLECTIVE BARGAINING REPRESENTATIVE ON THE SUBJECT OF A
CONTRACT PROVIDING THAT NONE BUT UNION MEMBERS SHOULD BE EMPLOYED.  THE
BOARD HELD THAT SUCH A REFUSAL WAS AN UNFAIR LABOR PRACTICE.  IN THE
MATTER OF TAMPA ELECTRIC CO., 56 N.L.R.B. 1270, 1273.  AND SEE ALGOMA
PLYWOOD CO., 26 N.L.R.B. 975, 994. 

FN6  SEE FOR EXAMPLE, LITTLE STEEL COMPANIES, 1 WAR LAB.  REP.  325;
AND INDUSTRIAL COTTON MILLS CO., 25 WAR LAB.  REP.  136. 

FN7  DOUGLAS AIRCRAFT CO., 28 WAR LAB.  REP.  51(1945). 

FN8  IN ALL OF THE CASES BELOW, THE WAR LABOR BOARD REQUIRED
INSERTION OF THE MAINTENANCE OF MEMBERSHIP CLAUSE DESPITE LOCAL STATE
STATUTES WHICH PROHIBITED SUCH AGREEMENTS.  VILTER MFG. CO., 11 WAR
LAB.  REP.  332; U.S. VANADIUM CORP., 13 WAR LAB.  REP.  527; INGALLS
IRON WORKS CO., 21 WAR LAB.  REP.  27; ST. JOE PAPER CO., 25 WAR LAB. 
REP.  421. 

FN9  GIANT FOOD SHOPPING CENTER (1948), 77 N.L.R.B. (NO. 153).  THE
TAFT-HARTLEY ACT CANNOT JUSTIFY THIS ORDER OF THE WISCONSIN BOARD
BECAUSE THE ACT WAS PASSED AFTER THE ORDER WAS ISSUED. 

FN10  "SEC.  8.  IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER
- 

     .         .      .         .         . 

"(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, THAT NOTHING IN THIS
ACT,  ...  OR IN ANY CODE OR AGREEMENT APPROVED OR PRESCRIBED
THEREUNDER, OR IN ANY OTHER STATUTE OF THE UNITED STATES, SHALL
PRECLUDE AN EMPLOYER FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION
...  TO REQUIRE AS A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN, IF
SUCH LABOR ORGANIZATION IS THE REPRESENTATIVE OF THE EMPLOYEES AS
PROVIDED IN SECTION 9(A), IN THE APPROPRIATE COLLECTIVE BARGAINING UNIT
COVERED BY SUCH AGREEMENT WHEN MADE."  49 STAT. 449, 452, 29 U.S.C.
SEC. 158(3). 
..END :


















NEW YORK V. SAPER, 336 U.S. 328 


ARGUED JANUARY 4, 1949.  - DECIDED MARCH 7, 1949.  - 168 F.2D 268, 272,
AFFIRMED. 


UNDER THE BANKRUPTCY ACT OF 1898, AS AMENDED BY THE ACT OF 1926 AND
THE CHANDLER ACT OF 1938, TAX CLAIMS AGAINST A BANKRUPT BEAR INTEREST
ONLY UNTIL THE DATE OF BANKRUPTCY, NOT UNTIL PAYMENT.  PP. 329-341. 

CITY OF NEW YORK V. SAPER, TRUSTEE IN BANKRUPTCY. 

NO. 168.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT.* 

*TOGETHER WITH NO. 260, STATE OF NEW YORK V. CARTER, TRUSTEE IN
BANKRUPTCY, AND NO. 201, UNITED STATES V. CARTER, TRUSTEE IN
BANKRUPTCY, ALSO ON CERTIORARI TO THE SAME COURT. 

IN NO. 168, THE DISTRICT COURT IN A BANKRUPTCY PROCEEDING ALLOWED
INTEREST ON A TAX CLAIM OF THE CITY OF NEW YORK TO THE DATE OF
PAYMENT.  75 F.SUPP.  458.  THE COURT OF APPEALS REVERSED.  168 F.2D
268.  THIS COURT GRANTED CERTIORARI.  335 U.S. 811.  AFFIRMED, P. 341. 

IN NOS. 200 AND 201, THE DISTRICT COURT IN A BANKRUPTCY PROCEEDING
ALLOWED INTEREST ON TAX CLAIMS OF THE UNITED STATES AND THE STATE OF
NEW YORK ONLY TO THE DATE OF BANKRUPTCY.  73 F.SUPP.  685.  THE COURT
OF APPEALS AFFIRMED.  168 F.2D 272.  THIS COURT GRANTED CERTIORARI. 
335 U.S. 812.  AFFIRMED, P. 341. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE ISSUE IN THESE THREE CASES IS WHETHER TAX CLAIMS AGAINST
A BANKRUPT BEAR INTEREST UNTIL THE DATE OF BANKRUPTCY,  FN1  AS HELD BY
THE COURT BELOW,  FN2  OR UNTIL PAYMENT, AS PREVIOUSLY HELD BY ANOTHER
COURT OF APPEALS.  FN3  WE GRANTED CERTIORARI  FN4  TO RESOLVE THE
CONFLICT, THE MATTER BEING OF CONSIDERABLE PRACTICAL IMPORTANCE  FN5
IN THE ADMINISTRATION OF THE BANKRUPTCY ACT.  FN6 

IF THE QUESTION WERE ONE OF FIRST IMPRESSION TO BE DECIDED IN THE
LIGHT OF THE PRESENT STATUTE ALONE, WE SHOULD HAVE NO DIFFICULTY IN
AFFIRMING THE COURT BELOW.  MORE THAN FORTY YEARS AGO MR. JUSTICE
HOLMES WROTE FOR THIS COURT THAT THE RULE STOPPING INTEREST AT
BANKRUPTCY HAD THEN BEEN FOLLOWED FOR MORE THAN A CENTURY AND A HALF. 
HE SAID THE RULE WAS NOT A MATTER OF LEGISLATIVE COMMAND OR STATUTORY
CONSTRUCTION BUT, RATHER, A FUNDAMENTAL PRINCIPLE OF THE ENGLISH
BANKRUPTCY  FN7  SYSTEM WHICH WE COPIED.  SEXTON V. DREYFUS, 219 U.S.
339, 344.  OUR PRESENT STATUTE CONTAINS NO PROVISION EXPRESSLY
REPUDIATING THAT PRINCIPLE OR ALLOWING AN EXCEPTION IN FAVOR OF TAX
CLAIMS.  EVERY LOGICAL IMPLICATION FROM RELEVANT PROVISIONS IS TO THE
CONTRARY.  SECTION 63(A)(1), 11 U.S.C. SEC. 103(A)(1) ALLOWS INTEREST
ON JUDGMENTS AND WRITTEN INSTRUMENTS FN8  ONLY TO DATE OF BANKRUPTCY. 
DATE ON DEBTS REDUCED TO JUDGMENT  FN9  AFTER BANKRUPTCY.  FN10  NO
PROVISION PERMITS POST-BANKRUPTCY INTEREST ON OTHER CLAIMS IN GENERAL
OR TAX CLAIMS IN PARTICULAR.  SECTION 57(J), 11 U.S.C. SEC. 93(J),
FORBIDDING ALLOWANCE OF GOVERNMENTAL PENALTIES OR FORFEITURES, PERMITS
FN11 ALLOWANCE OF LOSSES SUSTAINED BY THE ACTS PENALIZED, WITH ACTUAL
COSTS AND "SUCH INTEREST AS MAY HAVE ACCRUED THEREON ACCORDING TO
LAW."  HOWEVER, ON ITS FACE THIS APPEARS TO DELIMIT EVEN SUCH ALLOWABLE
DEBTS AS OF THE DATE OF BANKRUPTCY AND TO ALLOW NO MORE INTEREST THAN
DOES SEC. 63 WITH RESPECT TO THE CLAIMS THERE SPECIFIED.  MOREOVER,
THERE IS NO INTEREST EXCEPT THAT WHICH ACCRUES ACCORDING TO LAW - IT IS
EXACTLY SUCH INTEREST THAT THE "FUNDAMENTAL PRINCIPLE" CUTS OFF AS OF
BANKRUPTCY.  SECTION 57(N), 11 U.S.C. SEC. 93(N) REQUIRES GOVERNMENTAL
CLAIMS TO BE PROVED IN THE SAME MANNER AND WITHIN THE SAME TIME AS
OTHER DEBTS AND ONLY FOR CAUSE SHOWN MAY A REASONABLE EXTENSION BE
GRANTED.  TAX CLAIMS ARE TREATED THE SAME AS OTHER DEBTS EXCEPT FOR THE
FOURTH PRIORITY OF PAYMENT, SEC. 64(A), 11 U.S.C. SEC. 104(A), AND THE
PROVISION MAKING TAXES NONDISCHARGEABLE, SEC. 17, 11 U.S.C. SEC. 35. 
BUT EACH OF THESE SECTIONS IS SILENT AS TO INTEREST. 

THE LONG-STANDING RULE AGAINST POST-BANKRUPTCY INTEREST THUS APPEARS
IMPLICIT IN OUR CURRENT BANKRUPTCY ACT.  TO READ INTO SUCH A STATUTE AN
EXCEPTION TO THAT RULE WOULD BE UNWARRANTED AND, AS AN ORIGINAL
PROPOSITION, WE SHOULD DECLINE TO DO SO.  HOWEVER, THE ISSUE COMES HERE
AFTER FORTY YEARS OF BANKRUPTCY ADMINISTRATION UNDER THE ACT OF 1898
FOLLOWED BY TEN YEARS UNDER THE 1938 CHANDLER AMENDMENTS.  PETITIONERS
CONTEND THAT JUDICIAL DECISIONS DURING THOSE PERIODS HAVE NOW BEEN
INCORPORATED INTO A LEGISLATIVE POLICY ALLOWING INTEREST ON TAX CLAIMS
TO PAYMENT, THEREBY PRODUCING A RULE OF LAW BEYOND FURTHER JUDICIAL
SCRUTINY. 

IT IS CONTENDED THAT DECISIONS UNDER THE ACT OF 1898 DEFINITELY
ESTABLISHED SUCH A RULE.  AND PETITIONERS CHALLENGE THE LOWER COURT'S
HOLDING, DESPITE THOSE DECISIONS, THAT THE CONGRESS THROUGH THE
CHANDLER ACT COMPLETED THE ASSIMILATION OF TAXES TO DEBTS AND
MANIFESTED AN INTENTION THAT SUCH CLAIMS BE TREATED, INTEREST-WISE, THE
SAME AS OTHER DEBTS.  THEY ASSERT THAT THE PRE-CHANDLER ACT ALLOWANCE
OF INTEREST TO DATE OF PAYMENT WAS GROUNDED IN JUDICIAL CONSTRUCTION OF
SEC. 57(J), APPROVED AT LEAST SUB SILENTIO BY THIS COURT IN UNITED
STATES V. CHILDS, 266 U.S. 304, AND ADOPTED BY CONGRESSIONAL
REENACTMENT OF THAT SECTION IN THE CHANDLER ACT.  THEY ALSO CONTEND
THAT EVEN AFTER THE CHANDLER ACT THE LOWER COURTS, AND THIS COURT IN
MEILINK V. UNEMPLOYMENT COMMISSION, 314 U.S. 564, AFFIRMED THE ALLEGED
PRIOR INTERPRETATION OF SEC. 57(J).  IN SUCH A SITUATION, IT IS SAID,
THE COURTS CANNOT MODIFY WHAT HAS NOW BECOME LEGISLATIVE POLICY EVEN
THOUGH ORIGINALLY IT MAY HAVE BEEN A JUDICIALLY DEVELOPED RULE AND ONE
WHICH NOW, AS A MATTER OF STATUTORY CONSTRUCTION, WE SHOULD REJECT. 

AT THE OUTSET IT MAY BE ADMITTED THAT IN PRACTICE UNDER THE ACT OF
1898 THE LOWER COURTS GENERALLY DID ALLOW INTEREST ON TAX CLAIMS UNTIL
PAID.  THE PARTIES AND THE LOWER COURTS TRACE THAT PRACTICE TO IN RE
KALLAK, 147 F. 276, AND CASES FOLLOWING THAT DECISION.  BUT WE DO NOT
BELIEVE THOSE CASES SUPPORT PETITIONERS' CONTENTION THAT THE PRE
CHANDLER ALLOWANCE OF POST-BANKRUPTCY INTEREST REFLECTS A CONSTRUCTION
OF SEC. 57(J).  THE KALLAK OPINION ITSELF REFUTES THAT CONTENTION
INSOFAR AS IT MAY BE BASED ON THAT LINE OF CASES.  THE COURT THERE
FIRST DECIDED THAT SINCE SEC. 64(A) OF THE ACT OF 1898  FN12  GAVE
TAXES ABSOLUTE PRIORITY OVER CLAIMS OF EVERY KIND, "PUBLIC TAXES DO NOT
CONSTITUTE A 'CLAIM' IN BANKRUPTCY."  147 F. 276, 277.  THE STATUTE DID
NOT REQUIRE THAT TAXES BE PROVED BUT THAT THE TRUSTEE SHOULD SEEK THEM
OUT AND PAY THEM IN FULL.  IN VIEW OF THAT REQUIREMENT AND SINCE TAXES
WERE NOT CLAIMS, THE COURT SAW NO REASON WHY THE RULE STOPPING INTEREST
ON ORDINARY CLAIMS SHOULD APPLY.  THE COURT FOUND THAT RULE WAS BASED
ON CONSIDERATIONS OF EXPEDIENCY AND PRACTICAL CONVENIENCE NOT PRESENT
IN THE CASE OF TAXES.  FIRST, IT SAID THAT ALLOWANCE OF SUCH INTEREST
AT THE VARYING RATES APPLICABLE TO THE DIFFERENT CLAIMS SHARING THE
ESTATE WOULD PREVENT DEFINITE DETERMINATION OF EACH CLAIMANT'S
PROPORTIONATE SHARE.  SECONDLY, SUCH RECURRING READJUSTMENTS WOULD
COMPLICATE ADMINISTRATION OF THE ESTATE.  SINCE NEITHER DIFFICULTY
WOULD RESULT FROM ALLOWING POST-BANKRUPTCY INTEREST ON TAXES NOT
SHARING THE FUND WITH OTHER OBLIGATIONS, THE RULE AGAINST SUCH INTEREST
WAS HELD TO BE INAPPLICABLE.  THIS CONCLUSION WAS GROUNDED ENTIRELY IN
REASONS OF PRACTICAL CONVENIENCE.  IF THE CASE INVOLVED CONSTRUCTION OF
ANY PART OF THE ACT OF 1898, IT CLEARLY WAS SEC. 64(A) WITH ITS
REQUIREMENTS OF ABSOLUTE PRIORITY IN PAYMENT OF "ALL TAXES LEGALLY DUE
AND OWING," WHICH, TOGETHER WITH THE DISPENSATION FROM PROOF, THE COURT
CONSIDERED AS INDICATING THAT TAXES ENJOYED A STATUS ENTIRELY DIFFERENT
FROM THAT ACCORDED ORDINARY CLAIMS.  THOSE PROVISIONS WERE CONSIDERED
CONTROLLING, WHILE SEC. 57(J) WAS NOT MENTIONED IN THE OPINION. 
CONSEQUENTLY THE LATTER SECTION'S REENACTMENT COULD NOT BE CONSIDERED A
LEGISLATIVE ADOPTION OF ANY "JUDICIAL GLOSS" ON THAT SECTION RESULTING
FROM THE KALLAK LINE OF CASES.  THE ONLY SECTION RELIED UPON IN KALLAK,
SEC. 64(A), HAS BEEN SIGNIFICANTLY AMENDED TO DEPRIVE TAXES OF THEIR
PREFERRED STATUS, FIRST BY THE AMENDMENT OF 1926, AND LATER BY THE
CHANDLER ACT.  THE FORMER FN13  EXPRESSLY PROVIDED THAT TAXES YIELD
PRIORITY TO ADMINISTRATION EXPENSES AND CERTAIN WAGES, NEITHER OF WHICH
BEAR INTEREST.  THE LATTER AMENDMENTS FINALIZED THE SUBORDINATION OF
TAXES TO OTHER PRIORITY ITEMS.  THEY ALSO WROTE INTO SEC. 57(N) THE
REQUIREMENT OF PROOF, FORMERLY DISPENSED WITH UNDER SEC. 64(A). 
CONSEQUENTLY THE ARGUMENT BASED ON ALLEGED CHANDLER ACT RECOGNITION OF
LOWER COURT INTERPRETATIONS OF SEC. 57(J) SEEMS ENTIRELY WITHOUT
FORCE.  AND, ON THE CONTRARY, THAT ENACTMENT DID SIGNIFICANTLY CHANGE
THE PROVISIONS OF SEC. 64(A) WHICH WERE DECISIVE IN KALLAK AND SIMILAR
CASES.  FN14 

PETITIONERS RELY MOST HEAVILY, HOWEVER, UPON THIS COURT'S DECISION IN
UNITED STATES V. CHILDS, 266 U.S. 304, REVERSING IN RE J. MENIST & CO.,
290 F. 947.  IT IS URGED THAT THIS DECISION REFLECTED A CONSTRUCTION BY
THIS COURT OF SEC. 57(J) WHICH THE CONGRESS ADOPTED IN ENACTING THE
CHANDLER AMENDMENTS.  WE DO NOT BELIEVE THIS CONTENTION SURVIVES
SCRUTINY OF THAT CASE OR THAT IT IS SUPPORTED BY THE LEGISLATIVE
HISTORY OF THE CHANDLER ACT.  THE COURT OF APPEALS STATED THAT THE ONLY
ISSUE BEFORE IT WAS "WHETHER AN EXACTION OF 1 PER CENT. A MONTH AS THE
PRICE OF DELAY AMOUNTS TO A PENALTY."  290 F. 947, 949.  IT DECIDED
THAT ANYTHING IN EXCESS OF 6% PER ANNUM WOULD BE A PENALTY BARRED BY
SEC. 57(J).  IT IS TRUE THAT COURT ALSO STATED THE ALLOWABLE INTEREST
COULD RUN UNTIL PAYMENT.  HOWEVER, THAT STATEMENT WAS ALSO BASED ON THE
"HIGHLY PREFERRED" STATUS OF TAXES AND THE REQUIREMENT OF SEC. 64(A)
THAT ABSOLUTE PRIORITY BE GIVEN TO "ALL TAXES LEGALLY DUE AND OWING." 
COULD NOT BE ALLOWED BUT THAT 6% WAS A "PECUNIARY LOSS" WITHIN THE
MEANING OF THAT SECTION, AND ALLOWABLE AS SUCH, IN FULL.  BUT THE
GOVERNMENT CHALLENGED IN THIS COURT ONLY THE HOLDING THAT THE 12%
INTEREST WAS A PENALTY BARRED BY SEC. 57(J).  THIS COURT REVERSED AS TO
THAT POINT AND THE OPINION MAKES IT CLEAR THAT IT WAS THE ONLY ISSUE
CONSIDERED AND DECIDED HERE.  THE QUESTION WHETHER INTEREST COULD RUN
TO PAYMENT, ALTHOUGH DISCUSSED IN RESPONDENT'S BRIEF ON THE MERITS, WAS
NOT THE ISSUE WHICH INDUCED THE COURT TO BRING THE CASE HERE, AND IT IS
NOT DISCUSSED IN THE OPINION.  WE CANNOT AGREE THAT THE CASE REPRESENTS
EVEN A SUB-SILENTIO APPROVAL OF ALLOWANCE OF POST-BANKRUPTCY INTEREST. 
EVEN ASSUMING, ARGUENDO, SUCH APPROVAL TO BE IMPLICIT IN THE DECISION,
IT WOULD NOT HELP PETITIONERS, RELYING SOLELY ON REENACTMENT OF SEC.
57(J), SINCE WE HAVE SHOWN THE LOWER COURT'S HOLDING WAS BASED LARGELY
ON PROVISIONS OF SEC. 64(A) WHICH HAVE SINCE BEEN CHANGED BY THE ACT OF
1926 AND THE CHANDLER ACT. 

OTHER DECISIONS OF THIS COURT CITED BY PETITIONERS ON THIS POINT DO
NOT HELP THEIR CAUSE AND REQUIRE LITTLE DISCUSSION.  DAYTON V. STANARD,
241 U.S. 588, APPROVED PAYMENT OF INTEREST TO INDIVIDUALS WHO, DURING
THE COURSE OF A BANKRUPTCY, PAID OFF TAX LIENS BINDING PROPERTY OF THE
BANKRUPT.  THE COURT'S DECISION WAS ONLY THAT SUCH PARTIES, WHOSE TAX
DEEDS WERE INVALIDATED BECAUSE AT THE TIME THEY WERE ISSUED THE
PROPERTY WAS IN CUSTODIA LEGIS, COULD BE REIMBURSED OUT OF THE ESTATE'S
GENERAL FUND FOR BOTH THEIR ADVANCES AND INTEREST AT THE LEGAL RATE. 
THIS WAS SIMPLE EQUITY SINCE THE CLAIMANTS HAD PAID TAXES WHICH THE
THEN SEC. 64(A) REQUIRED THE TRUSTEE TO SEEK OUT AND PAY IN FULL.  NEW
YORK V. JERSAWIT, 263 U.S. 493, IS CLEARLY A HOLDING LIMITED TO THE
DETERMINATION THAT THE CLAIM THERE ASSERTED WAS A PENALTY NOT ALLOWABLE
UNDER SEC. 57(J).  THE CASE WAS SO DESCRIBED IN THE CHILDS OPINION, 266
U.S. 304, 309, AND THE DISCUSSION THERE CONFIRMS OUR CONCLUSION THAT
THE LATTER DECISION WAS SIMILARLY LIMITED TO THAT POINT.  CODER V.
ARTS, 213 U.S. 223, STATES AS A SUBSIDIARY POINT ONLY THAT, WHERE THE
ESTATE WAS ADEQUATE, INTEREST COULD PROPERLY BE ALLOWED ON A MORTGAGE
WHICH THE COURT HAD HELD NOT TO BE A VOIDABLE PREFERENCE. 

IT IS THUS CLEAR THAT WHEN THE CHANDLER AMENDMENTS WERE UNDER
CONSIDERATION IN CONGRESS THE REPORTED CASES ESTABLISHED ONLY THAT
LOWER COURTS WERE ALLOWING INTEREST ON TAX CLAIMS UNTIL PAYMENT, EITHER
AS A MATTER OF PRACTICAL CONVENIENCE OR BECAUSE SEC. 64(A) GAVE THOSE
CLAIMS ABSOLUTE PRIORITY AND DISPENSED WITH PROOF.  THERE WAS NO BASIS
FOR BELIEF THAT THE LOWER COURTS, MUCH LESS THIS COURT, HAD APPLIED ANY
JUDICIAL GLOSS TO SEC. 57(J) REQUIRING SIMILAR PREFERRED TREATMENT,
INTEREST-WISE, FOR TAX CLAIMS.  IF ANY CONCLUSION COULD HAVE BEEN DRAWN
FROM THE CASES IT WAS THAT SEC. 64(A) MIGHT HAVE JUSTIFIED A JUDICIAL
BELIEF THAT TAXES NEED NOT BE CONSIDERED, FOR ANY PURPOSE, THE SAME AS
OTHER DEBTS.  AND, AS WE HAVE SEEN, BOTH SIGNIFICANT PROVISIONS OF THAT
CONSEQUENTLY, REENACTMENT OF SEC. 57(J) DOES NOT SUPPORT PETITIONERS'
POSITION ON THIS ISSUE.  THIS CONCLUSION IS CONFIRMED BY THE COMPLETE
LACK OF ANY INDICATION IN THE LEGISLATIVE HISTORY THAT CONGRESS
CONSIDERED SEC. 57(J) IN THIS CONNECTION.  PETITIONERS ARE IN FACT
ASSERTING THAT ADDING TO AN ALLEGED SUB-SILENTIO RULING HERE ON SEC.
57(J) CONGRESSIONAL SILENCE IN REENACTING THAT SECTION PRECIPITATED A
LEGISLATIVE COMMAND THAT POST-BANKRUPTCY INTEREST BE ALLOWED ON TAX
CLAIMS WHICH, AT THE SAME TIME, WERE DELIBERATELY BEING REDUCED TO THE
LEVEL OF OTHER DEBTS.  MERE STATEMENT OF THE PROPOSITION INDICATES ITS
REJECTION.    THE COURT OF APPEALS CONCLUDED THAT BY THE 1926 AMENDMENT
AND THE CHANDLER ACT, CONGRESS ASSIMILATED TAXES TO OTHER DEBTS FOR ALL
PURPOSES, INCLUDING DENIAL OF POST-BANKRUPTCY INTEREST.  WE THINK THIS
IS A SOUND AND LOGICAL INTERPRETATION OF THE ACT AFTER THOSE AMENDMENTS
TO SECS. 64(A) AND 57(N).  CONSIDERED IN CONJUNCTION WITH THE GENERAL
RULE AGAINST POST-BANKRUPTCY INTEREST  FN15  AS WELL AS SEC. 63'S
LIMITATIONS OF INTEREST ON OTHER CLAIMS TO DATE OF BANKRUPTCY, THEY
COMPEL OUR CONCLUSION, ALREADY STATED, THAT THE STATUTE AS AMENDED DID
NOT CONTEMPLATE ANY EXCEPTION IN FAVOR OF TAX CLAIMS.    PETITIONERS'
FINAL CONTENTION IS THAT EVEN AFTER THE CHANDLER ACT THE LOWER COURTS
CONTINUED TO ALLOW POST-BANKRUPTCY INTEREST, THAT THIS COURT IN MEILINK
V. UNEMPLOYMENT COMMISSION, 314 U.S. 564, APPROVED THE PRACTICE, AND
THAT CONGRESSIONAL RECOGNITION OF THAT INTERPRETATION IS REFLECTED IN
AN UNSUCCESSFUL ATTEMPT TO MODIFY SEC. 57(J).  IT MAY BE ADMITTED THAT
LOWER COURTS, OTHER THAN THE ONE WHOSE JUDGMENT IS NOW BEING REVIEWED,
DID CONTINUE TO ALLOW SUCH INTEREST AFTER THE 1938 AMENDMENT.  FN16
BUT THIS COURT HAS NOT, IN THE MEILINK CASE OR OTHERWISE, PASSED ON THE
QUESTION.  THAT CASE INVOLVED THE SAME ISSUE THAT HAD BEEN PRESENTED IN
CHILDS:  WHETHER OR NOT THE INTEREST THERE CHALLENGED WAS IN FACT A
PENALTY PROSCRIBED BY SEC. 57(J) WHICH HAD BEEN LEFT SUBSTANTIALLY
UNCHANGED BY THE CHANDLER ACT.  WE DECIDED ONLY THAT QUESTION. 

BUT, IRRESPECTIVE OF THAT DECISION, PETITIONERS CONTEND THAT CONGRESS
HAS CONSIDERED THE LOWER COURTS' POST-CHANDLER ACT DECISIONS AS A
STATUTORY INTERPRETATION WHICH CAN BE OVERRULED ONLY BY LEGISLATION. 
THE ARGUMENT IS BASED ON A COMMITTEE REPORT ACCOMPANYING A BILL
APPROVED BY THE HOUSE DURING THE 80TH CONGRESS BUT NOT ACTED UPON IN
THE SENATE.  AMONG BANKRUPTCY ACT AMENDMENTS PROPOSED IN THIS BILL WAS
ONE DESIGNED "BOTH TO CLARIFY AND MODIFY" SEC. 57(J).  THE CHANGE, IT
WAS SAID IN THE HOUSE REPORT, WAS TO MAKE IT CLEAR THAT THE SECTION
REFERRED TO INTEREST ON THE "PECUNIARY LOSS" AND THAT SUCH INTEREST
STOPS AT BANKRUPTCY.  THE CLARIFYING CLAUSE WAS "INTENDED TO OVERRULE
AN OBSOLETE RULE" AS TO INTEREST ON DELINQUENT TAXES.  IT WAS STATED
THAT ALTHOUGH SECS. 64(A) AND 57(N) AS AMENDED BY THE CHANDLER ACT
RENDERED THE REASONING OF THE KALLAK CASE OBSOLETE, NEVERTHELESS ITS
RULE HAD NOT BEEN CHANGED AND LEGISLATION WAS NECESSARY, CITING DAVIE
V. GREEN, 133 F.2D 451, THE CASE WHICH CONFLICTS WITH THE DECISION NOW
BEING REVIEWED.  THE TEXT OF THE SECTION OF THE REPORT DEVOTED TO THIS
PROPOSED AMENDMENT IS PRINTED IN THE MARGIN.  FN17 WE BELIEVE A FAIR
READING OF IT LEADS TO THE CONCLUSION THAT THE COMMITTEE BELIEVED, NOT
THAT THE CHANDLER ACT EITHER ALLOWED POST-BANKRUPTCY INTEREST OR LEFT
THE MATTER OPEN, BUT THAT THE COURTS IN ALLOWING SUCH INTEREST WERE
IGNORING THE NECESSARY AND INTENDED IMPLICATIONS FROM THE CHANDLER
AMENDMENTS TO SECS. 57(N) AND 64(A).  THE COURT BELOW DID NOT HAVE THIS
REPORT BEFORE IT, BUT IN A WELL-CONSIDERED OPINION REACHED THE SAME
CONCLUSION.  WE BELIEVE THAT CONCLUSION IS CONFIRMED BY THE REPORT AND
THAT PETITIONERS' CONTENTIONS FIND NO SUPPORT IN EITHER THE CHANDLER
ACT OR THIS ABORTIVE ATTEMPT AT CLARIFICATION.  FN18 

THE CASE THUS PRESENTS ONLY THE CONFLICT BETWEEN TWO COURTS OF
APPEALS AS TO THE PROPER INTERPRETATION OF THE CURRENT STATUTE.  WE
AGREE WITH THE COURT BELOW AND RESOLVE THE CONFLICT BY AFFIRMING ITS
JUDGMENTS.  FN19  AFFIRMED. 

FN1  THE TERMS "DATE OF BANKRUPTCY" AND "BANKRUPTCY," WITH REFERENCE
TO TIME, MEAN THE DATE WHEN THE PETITION WAS FILED, 30 STAT. 544, AS
AMENDED 52 STAT. 840-841, AND ARE USED ACCORDINGLY IN THIS OPINION. 

FN2  IN NO. 168 THE DISTRICT JUDGE ALLOWED NEW YORK CITY INTEREST TO
THE DATE OF PAYMENT, 75 F.SUPP.  458, AND THE COURT OF APPEALS
REVERSED, 168 F.2D 268.  IN NOS. 200-201, THE DISTRICT JUDGE ALLOWED
THE UNITED STATES AND THE STATE OF NEW YORK INTEREST ONLY TO THE DATE
OF BANKRUPTCY, 73 F.SUPP.  685, AND THE COURT OF APPEALS AFFIRMED, 168
F.2D 272. 

FN3  DAVIE V. GREEN, 133 F.2D 451. 

FN4  335 U.S. 811, 812. 

FN5  THOSE MOST IMMEDIATELY CONCERNED WITH ADMINISTRATION OF THE ACT
HAVE FREQUENTLY EXPRESSED DISSATISFACTION OVER THE INROADS TAXES AND
INTEREST THEREON MAKE IN THE FUND AVAILABLE FOR CREDITORS.  FOR
DISCUSSIONS OF THAT AND SIMILAR PRACTICAL PROBLEMS SEE 14 J.N.A. REF.
BANKR.  3; 17 ID. 129; 18 ID. 17; 19 ID. 31; 21 ID. 106; 22 ID. 41; 44
COM. L.J. 411; AND 45 ID. 370.  SEE ALSO JUDGE BRIGHT'S OPINION BELOW,
73 F.SUPP.  685, AND REFEREES' COMMENTS IN MATTER OF DORSEY, 46 AM.
B.R. (N.S.)  146, AND MATTER OF D.O. SUMMERS CO., 45 AM. B.R. (N.S.) 
123.  THE WHOLE SUBJECT OF TAX CLAIMS AND INTEREST IS DISCUSSED AT
LENGTH IN 3 COLLIER ON BANKRUPTCY (14TH ED., 1941, AND 1948 CUM. SUPP.)
PP57.22, 57.30, 63.16, 63.26, 64.404, 64.407, 64.408.  COMMENTS APPEAR
IN 61 HARV. L. REV. 354; 21 TEMP.  L.Q. 428; 29 VA. L. REV. 206; 34 ID.
835; 23 N.Y.U.L.Q. REV. 516. 

FN6  BANKRUPTCY ACT OF 1898, C. 541, 30 STAT. 544, AS AMENDED BY THE
CHANDLER ACT OF JUNE 22, 1938, C. 575, 52 STAT. 840, 11 U.S.C. SEC. 1
ET SEQ. 

FN7  IN ENGLAND THE PRACTICE WAS WELL ESTABLISHED, 2 BLACKSTONE,
COMMENTARIES *488; BROMLEY V. GOODERE, 1 ATK.  75; EX PARTE BENNET, 2
ATK.  527; AND APPLIED TO MORTGAGES AS WELL AS UNSECURED DEBTS, EX
PARTE BADGER, 4 VES.  JR. 165; EX PARTE RAMSBOTTOM, 2 MONT. & AYR.  79;
EX PARTE PENFOLD, 4 DE G. & SM. 282; EX PARTE LUBBOCK, 9 JUR.  (N.S.) 
854; IN RE SAVIN, L.R. 7 CH. 760, 764; EX PARTE BATH, 22 CH. DIV. 450,
454; QUARTERMAINE'S CASE, (1892) 1 CH. 639; IN RE BONACINO, 1 MANSON
59.  TWO EXCEPTIONS WERE RECOGNIZED:  IF THE ALLEGED "BANKRUPT" PROVED
SOLVENT, CREDITORS RECEIVED POST-BANKRUPTCY INTEREST BEFORE ANY SURPLUS
REVERTED TO THE DEBTOR, BROMLEY V. GOODERE, 1 ATK.  75; EX PARTE MILLS,
2 VES.  JR. 295; EX PARTE CLARKE, 4 VES.  JR. 676; AND IF SECURITIES
HELD BY A CREDITOR AS COLLATERAL PRODUCED INTEREST OR DIVIDENDS DURING
BANKRUPTCY SUCH AMOUNTS WERE APPLIED TO POST-BANKRUPTCY INTEREST, EX
PARTE RAMSBOTTOM, 2 MONT. & AYR.  79; EX PARTE PENFOLD, 4 DE G. & SM.
282; QUARTERMAINE'S CASE, (1892) 1 CH. 639.  THESE EXCEPTIONS HAVE BEEN
CARRIED OVER INTO OUR SYSTEM.  SEE AMERICAN IRON CO. V. SEABOARD AIR
LINE, 233 U.S. 261, 267; SEXTON V. DREYFUS, 219 U.S. 339, 346. 

FN8  "DEBTS OF THE BANKRUPT MAY BE PROVED AND ALLOWED AGAINST HIS
ESTATE WHICH ARE FOUNDED UPON (1) A FIXED LIABILITY, AS EVIDENCED BY A
JUDGMENT OR AN INSTRUMENT IN WRITING, ABSOLUTELY OWING AT THE TIME OF
THE FILING OF THE PETITION BY OR AGAINST HIM, WHETHER THEN PAYABLE OR
NOT, WITH ANY INTEREST THEREON WHICH WOULD HAVE BEEN RECOVERABLE AT
THAT DATE OR WITH A REBATE OF INTEREST UPON SUCH AS WERE NOT THEN
PAYABLE AND DID NOT BEAR INTEREST ...." 

FN9  "...  (5) PROVABLE DEBTS REDUCED TO JUDGMENTS AFTER THE FILING
OF THE PETITION AND BEFORE THE CONSIDERATION OF THE BANKRUPT'S
APPLICATION FOR A DISCHARGE, LESS COSTS INCURRED AND INTEREST ACCRUED
AFTER THE FILING OF THE PETITION AND UP TO THE TIME OF THE ENTRY OF
SUCH JUDGMENTS ...." 

FN10  ALTHOUGH THE PROVISIONS OF SEC. 63(A)(1) REQUIRING A REBATE OF
UNEARNED INTEREST, AND OF SEC. 63(A)(5) ELIMINATING CERTAIN POST
BANKRUPTCY INTEREST, MAY IN PRACTICE BE OPERATIVE BUT INFREQUENTLY,
THEY REFLECT A PRINCIPLE OF LONG STANDING.  SEE 2 BLACKSTONE,
COMMENTARIES *488. 

FN11  "DEBTS OWING TO THE UNITED STATES OR ANY STATE OR SUBDIVISION
THEREOF AS A PENALTY OR FORFEITURE SHALL NOT BE ALLOWED, EXCEPT FOR THE
AMOUNT OF THE PECUNIARY LOSS SUSTAINED BY THE ACT, TRANSACTION, OR
PROCEEDING OUT OF WHICH THE PENALTY OR FORFEITURE AROSE, WITH
REASONABLE AND ACTUAL COSTS OCCASIONED THEREBY AND SUCH INTEREST AS MAY
HAVE ACCRUED THEREON ACCORDING TO LAW." 

FN12  "SEC.  64.  DEBTS WHICH HAVE PRIORITY.  - A THE COURT SHALL
ORDER THE TRUSTEE TO PAY ALL TAXES LEGALLY DUE AND OWING BY THE
BANKRUPT TO THE UNITED STATES, STATE, COUNTY, DISTRICT, OR MUNICIPALITY
IN ADVANCE OF THE PAYMENT OF DIVIDENDS TO CREDITORS ....  B THE DEBTS
TO HAVE PRIORITY  ...  AND TO BE PAID IN FULL OUT OF BANKRUPT ESTATES,
AND THE ORDER OF PAYMENT SHALL BE ((1) COSTS OF PRESERVING THE ESTATE
(2) CERTAIN FILING FEES (3) ADMINISTRATION EXPENSES INCLUDING
ATTORNEY'S FEES (4) WAGES AS SPECIFIED (5) DEBTS ENTITLED TO PRIORITY
UNDER STATE OR FEDERAL LAWS) ...."  30 STAT. 544, 563. 

FN13  SEC. 15 OF THE ACT OF MAY 27, 1926, C. 406, 44 STAT. 662, 666. 

FN14  IN RE ASHLAND EMERY & CORUNDUM CO., 229 F. 829, RELIES ENTIRELY
ON SEC. 64(A) AND THE KALLAK CASE.  IN RE CLARK REALTY CO., 253 F. 938,
DISCUSSES SEC. 64(A) BUT NOT SEC. 57(J) AND RELIES, ERRONEOUSLY, ON
DAYTON V. STANARD, 241 U.S. 588, AS TO WHICH SEE TEXT.  IN RE J. MENIST
& CO., 290 F. 947, RELYING ON SEC. 64(A), IS DISCUSSED IN THE TEXT.  IN
RE A.E. FOUNTAIN, INC., 295 F. 873, DOES NOT DISCUSS THE ISSUE,
DECIDING ONLY THAT TAXES BEAR SIMPLE INTEREST.  HORNE V. BOONE COUNTY,
44 F.2D 920, DISCUSSES ONLY WHETHER THE LEVY THERE WAS PENALTY OR
INTEREST.  IN RE MARTIN, 75 F.2D 618, DOES NOT DISCUSS THE ISSUE.  IN
RE SEMON, 11 F.SUPP.  18, MODIFIED 80 F.2D 81, WAS BASED ON THE REVENUE
ACT OF 1928 AND THE COURT OF APPEALS DECIDED ONLY THAT THE LEVY THERE
WAS NOT A PENALTY.  IN RE BEARDSLEY & WOLCOTT MFG. CO., 82 F.2D 239,
ALSO INVOLVED ONLY THE PENALTY ISSUE.  COMPARE IN RE WILLIAM F. FISHER
& CO., 148 F. 907, DENYING THE CLAIMED INTEREST BECAUSE SEC. 64(A)
CONTAINED NO PROVISION ALLOWING IT; AND DICTUM AS TO INTEREST IN
MCCORMICK V. PURITAN COAL MIN. CO., 41 F.2D 213, 214. 

FN15  SEE NOTE 7 AND TEXT; AND SEE THOMAS V. WESTERN CAR CO., 149
U.S. 95; SEXTON V. DREYFUS, 219 U.S. 339; AMERICAN IRON CO. V. SEABOARD
AIR LINE, 233 U.S. 261. 

FN16  SEE, FOR EXAMPLE, IN RE L. GANDOLFI & CO., 42 F.SUPP.  706; IN
RE FLAYTON, 42 F.SUPP.  1002; DAVIE V. GREEN, 133 F.2D 451.  BUT SEE
REFEREE'S DECISION, IN MATTER OF UNION BEVERAGE CO., 50 AM. B.R.
(N.S.)  825, 829.  AND SEE DISCUSSION BY THE COURT BELOW IN HAMMER V.
TUFFY, 145 F.2D 447, 449, AND IN UNITED STATES V. ROTH, 164 F.2D 575,
577-578. 

FN17  "11.  SECTION 11(A) OF THE BILL IS INTENDED BOTH TO CLARIFY AND
MODIFY SECTION 57J OF THE ACT.  THE CHANGE IN 57JC) IS TO MAKE CLEAR
THAT THE LIMITATION ON INTEREST 'UP TO THE DATE OF BANKRUPTCY' RELATES
ONLY TO INTEREST ON THE 'PECUNIARY LOSS,' AND FURTHER THAT SUCH
INTEREST STOPS AT THE DATE OF BANKRUPTCY.  THE ADDITION OF CLAUSE (2)
IN THE BILL IS INTENDED TO OVERRULE AN OBSOLETE RULE AS TO INTEREST ON
DELINQUENT TAX DEBTS.  INTEREST ON GENERAL UNSECURED DEBTS, ON
UNSECURED GOVERNMENT DEBTS OTHER THAN TAXES, AND ON DEBTS ENTITLED TO
PRIORITY UNDER SECTION 64A, IS SUSPENDED AT THE DATE OF BANKRUPTCY SO
THAT, EXCEPT IN THE RARE CASE OF A SOLVENT ESTATE, INTEREST IS
ALLOWABLE ONLY TO SUCH DATE.  (SEC. 63A; ADAMS V. NAPA CANTINA WINERIES
(C.C.A., 9TH CIR.), 36 AM. B.R. (N.S.)  8; IN RE GANDOLFI & CO., INC.
(S.D., N.Y.), 51 AM. B.R. (N.S.)  521(GOVERNMENTAL DEBTS AND OTHER
DEBTS ENTITLED TO PRIORITY); 3 COLLIER ON BANKRUPTCY, 14TH ED., 1835 ET
SEQ.; 2 REMINGTON ON BANKRUPTCY, 4TH ED., SECS. 771, 795.)  HOWEVER,
INTEREST ON DELINQUENT TAX DEBTS IS ALLOWABLE TO THE DATE OF PAYMENT
(IN RE KALLAK (D.C., N.D., 1906), 17 AM. B.R. 414; IN RE ASHLAND EMERY
AND CORUNDUM CO. (D.C., MASS., 1916), 36 AM. B.R. 194; IN RE CLARK
REALTY CO. (C.C.A., 7TH CIR., 1918), 42 AM. B.R. 403; SUB SILENTIO,
UNITED STATES V. CHILDS, 266 U.S. 304, 307(1924), 5 AM. B.R. (N.S.) 
5).  ALTHOUGH, UNDER THE CHANDLER ACT, A TAX DEBT IS REQUIRED TO BE
PROVED (SEC. 57N) AND ITS ORDER OF PRIORITY RANKS BELOW ALL
ADMINISTRATION COSTS AND EXPENSES, WAGES AND COSTS AND EXPENSES OF
CREDITORS SUCCESSFULLY OPPOSING A SETTLEMENT OR DISCHARGE, OR PROCURING
A CONVICTION FOR AN OFFENSE (SEC. 64A (1), (2), (3)), THEREBY RENDERING
OBSOLETE THE REASONING IN THE KALLAK CASE, NEVERTHELESS ITS RULE HAS
NOT BEEN CHANGED, AND THEREFORE REQUIRES THIS STATUTORY MODIFICATION. 
FOR FURTHER DISCUSSION SEE IN RE D.O. SUMMERS (REF., N.D., OHIO, 1939),
46(45) AM. B.R. (N.S.)  123; IN RE DORSEY (REF., W.D., WASH., 1940), 46
AM. B.R. (N.S.)  146; (DAVISE) V. GREEN (C.C.A. 1ST CIR., 1943), 52 AM.
B.R. (N.S.)  603.  AND ON OVERRULING THE KALLAK CASE SEE IN RE UNION
FABRICS, INC., (S.D., N.Y., 1947), 73 F.SUPP.  685, APPEAL PENDING. 

"THE JUDICIAL CONFERENCE HAS MORE THAN ONCE EXPRESSLY APPROVED THIS
AMENDMENT TO SECTION 57J.  ITS MOST RECENT REAFFIRMATION OF ITS
POSITION WAS IN OCTOBER 1946.  (SEE REPORT OF THE JUDICIAL CONFERENCE,
OCTOBER 1946, P. 15.)  THE ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS HAS STATED THAT THE LANGUAGE OF SECTION 11 OF THE BILL IS
SATISFACTORY ON THIS SCORE."  H.R. REP. NO. 2083, 80TH CONG., 2D SESS.,
P. 5. 

FN18  THE UNITED STATES CITES, AS CONFIRMING THE CONSTRUCTION IT HAS
PLACED ON SEC. 57(J), FEDERAL TAXING STATUTES BEGINNING WITH THE
REVENUE ACT OF 1924 WHICH DIRECT THAT UPON NONPAYMENT OF THE TAX THERE
SHALL BE ADDED, AS PART OF THE TAX, INTEREST AT THE SPECIFIED RATE FROM
DUE DATE TO DATE OF PAYMENT.  IT HAS BEEN HELD THAT FEDERAL TAXES
ORDINARILY BEAR INTEREST EVEN IN THE ABSENCE OF STATUTE.  SEE BILLINGS
V. UNITED STATES, 232 U.S. 261, 284-288.  BUT WE DO NOT THINK EITHER
SUCH A RULE OR STATUTORY PROVISION COULD BE PERMITTED TO NEGATIVE THE
BANKRUPTCY ACT'S REQUIREMENT IN THAT RESPECT IF THE LATTER BE TO THE
CONTRARY, AS WE THINK IT IS.  THAT ACT WAS EARLY HELD TO TAKE INTO
CONSIDERATION "THE WHOLE RANGE OF INDEBTEDNESS OF THE BANKRUPT,
NATIONAL, STATE AND INDIVIDUAL," GUARANTEE CO. V. TITLE GUARANTY CO.,
224 U.S. 152, 160, AND TO HAVE BEEN PASSED "WITH THE UNITED STATES IN
THE MIND OF CONGRESS," DAVIS V. PRINGLE, 268 U.S. 315, 317.  WE DO NOT
BELIEVE THE REVENUE ACT OF 1924 AND SIMILAR ENACTMENTS WERE INTENDED TO
AMEND THE COMPREHENSIVE SCHEME OF THE BANKRUPTCY ACT, WITH AN EFFECT
CLEARLY CONTRARY TO SPECIFIC AMENDMENTS SUCH AS THE ACT OF 1926 AND THE
CHANDLER ACT.  THIS WOULD INDEED BE A STRANGE WAY TO REQUIRE, AS IT
WOULD, THAT FEDERAL TAX CLAIMS BE PREFERRED OVER STATE AND MUNICIPAL
CLAIMS WHEN THE BANKRUPTCY ACT ITSELF TREATS ALL TAX CLAIMS EQUALLY. 
THIS CONTENTION, STANDING BY ITSELF, OR IN SUPPORT OF THE ARGUMENT
BASED ON SEC. 57(J), CANNOT BE ACCEPTED.    FN19  SINCE WE HAVE
CONCLUDED THAT NEITHER THE ALLEGED LEGISLATIVE TREATMENT OF THIS ISSUE
NOR PRIOR RULINGS OF THIS COURT SUPPORT THE CONTRARY RESULT, THIS
DECISION INVOLVES NO CONSIDERATION OF THE PRINCIPLE OF STARE DECISIS. 
IF IT DID, THE RESPONSIBLE EXERCISE OF THE JUDICIAL PROCESS, HELVERING
V. HALLOCK, 309 U.S. 106, 119, WOULD DICTATE THAT THE EXPRESS
PRINCIPLES AND LOGICAL IMPLICATIONS OF THE CHANDLER ACT PREVAIL OVER
EARLIER INCONCLUSIVE LOWER COURT HOLDINGS AND CONGRESSIONAL FAILURE TO
CORRECT THEM. 

MR. JUSTICE REED DISSENTS FOR THE REASONS GIVEN IN DAVIE V. GREEN,
133 F.2D 451. 
..END :






OKLAHOMA TAX COMM'N V. TEXAS CO., 336 U.S. 342 


ARGUED NOVEMBER 19, 1948.  - DECIDED MARCH 7, 1949.  - REVERSED. 


1.  A LESSEE OF MINERAL RIGHTS IN ALLOTTED AND RESTRICTED INDIAN LANDS
IN OKLAHOMA HAS NO IMMUNITY UNDER THE FEDERAL CONSTITUTION FROM
NONDISCRIMINATORY STATE GROSS PRODUCTION TAXES AND STATE EXCISE TAXES
ON PETROLEUM PRODUCED FROM SUCH LANDS.  PP. 343-367. 

2.  OVERRULING CHOCTAW, O. & G.R. CO. V. HARRISON, 235 U.S. 292;
INDIAN TERRITORY ILLUMINATING OIL CO. V. OKLAHOMA, 240 U.S. 522; HOWARD
V. GIPSY OIL CO., 247 U.S. 503; LARGE OIL CO. V. HOWARD, 248 U.S. 549;
AND OKLAHOMA V. BARNSDALL REFINERIES, 296 U.S. 521.  HELVERING V.
MOUNTAIN PRODUCERS CORP., 303 U.S. 376, HELD CONTROLLING AND NOT
LIMITED TO INCOME TAXES.  PP. 364-365. 

3.  NO QUESTION IS HERE PRESENTED AS TO THE IMMUNITY FROM STATE
TAXATION OF THE INDIAN LANDS THEMSELVES OR OF THE INDIANS' SHARE OF
PRODUCTION, SINCE ONLY THE INTERESTS OF LESSEES WERE ASSESSED.  PP.
347(N. 14), 353. 

4.  A CONSTITUTIONAL IMMUNITY OF SUCH A LESSEE IS NOT TO BE INFERRED
FROM ACTS OF CONGRESS AUTHORIZING A STATE GROSS PRODUCTION TAX ON
MINERALS PRODUCED FROM THE LANDS OF CERTAIN INDIANS, SINCE THE PURPOSE
OF THOSE STATUTES WAS TO REMOVE IMMUNITIES OF THE INDIANS THEMSELVES. 
PP. 366-367. 

5.  CONGRESSIONAL APPROVAL OF THE DOCTRINE OF IMMUNITY ENUNCIATED IN
THE CASES HEREIN OVERRULED IS NOT TO BE INFERRED FROM MERE
CONGRESSIONAL SILENCE.  P. 367. 

OKLAHOMA TAX COMMISSION V. TEXAS COMPANY. 

NO. 40.  CERTIORARI TO THE SUPREME COURT OF OKLAHOMA* . 

*TOGETHER WITH NO. 41, OKLAHOMA TAX COMMISSION V. MAGNOLIA PETROLEUM
CO., ALSO ON CERTIORARI TO THE SAME COURT. 

STATE GROSS PRODUCTION TAXES AND STATE EXCISE TAXES ON PETROLEUM
PRODUCED FROM ALLOTTED AND RESTRICTED INDIAN LANDS BY RESPONDENTS, WHO
WERE LESSEES OF MINERAL RIGHTS IN THE LANDS, WERE HELD INVALID BY THE
OKLAHOMA SUPREME COURT.  THIS COURT DISMISSED APPEALS BY THE STATE TAX
COMMISSION AND GRANTED CERTIORARI.  333 U.S. 870.  REVERSED AND
REMANDED, P. 367. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION IS WHETHER A LESSEE OF MINERAL RIGHTS IN
ALLOTTED AND RESTRICTED INDIAN LANDS IS IMMUNIZED BY THE CONSTITUTION
AGAINST PAYMENT OF NONDISCRIMINATORY STATE GROSS PRODUCTION TAXES AND
STATE EXCISE TAXES ON PETROLEUM PRODUCED FROM SUCH LANDS.  IN EFFECT
THE ISSUE IS WHETHER THIS COURT'S PREVIOUS DECISIONS IN HOWARD V. GIPSY
OIL CO., 247 U.S. 503; LARGE OIL CO. V. HOWARD, 248 U.S. 549; AND
OKLAHOMA V. BARNSDALL REFINERIES, 296 U.S. 521, INVALIDATING SUCH TAXES
AS APPLIED TO LIKE LESSEES, HAVE BEEN SO UNDERMINED BY LATER DECISIONS,
IN PARTICULAR HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376, THAT
THEY SHOULD NOW BE OVERRULED. 

WITH CERTAIN EXCEPTIONS,  FN1  THE LANDS FROM WHICH WAS EXTRACTED THE
PETROLEUM SOUGHT TO BE TAXED ARE HELD IN TRUST BY THE UNITED STATES,
PURSUANT TO ALLOTMENTS MADE UNDER THE GENERAL ALLOTMENT ACT,  FN2  FOR
VARIOUS MEMBERS OF THE POTTAWATOMIE, APACHE, COMANCHE, AND OTOE AND
MISSOURIA TRIBES.  FN3  ALL THE LANDS ARE LOCATED WITHIN THE STATE OF
OKLAHOMA AND AT ALL MATERIAL TIMES THEY WERE RESTRICTED N4 AGAINST
ALIENATION BY THE INDIAN CESTUI OWNERS WITHOUT THE CONSENT OF THE
SECRETARY OF THE INTERIOR.  FN5  HE APPROVED EACH OF THE LEASES NOW IN
QUESTION.  THE RESPONDENTS TEXAS COMPANY (NO. 40) AND MAGNOLIA
PETROLEUM COMPANY (NO. 41) ACQUIRED THEIR LEASES BEFORE OKLAHOMA LEVIED
THE ASSESSMENTS NOW IN ISSUE, EITHER AS ORIGINAL LESSEES OR BY
ASSIGNMENT FROM NON-INDIANS WHO WERE SUCH LESSEES.  THE COMPANIES THUS
BECAME OWNERS OF ALL RIGHT, TITLE AND INTEREST IN THEIR RESPECTIVE
LEASES, SUBJECT ONLY TO THE ONE-EIGHTH ROYALTY INTEREST RESERVED TO THE
INDIAN LESSORS, AND WERE SUCH OWNERS AT THE TIMES OF THE RESPECTIVE
ASSESSMENTS.  IT MAY BE TAKEN THAT THEY HAVE OPERATED THE LEASES IN
CONFORMITY WITH THE APPLICABLE REGULATIONS OF THE DEPARTMENT OF THE
INTERIOR  FN6  AND OF THE STATE OF OKLAHOMA,  FN7  EXCEPT FOR THE
PAYMENT OF THE STATE TAXES IN QUESTION.  FN8 

THE OKLAHOMA GROSS PRODUCTION TAX REQUIRES PAYMENT OF FIVE PER CENT
OF THE GROSS VALUE OF PRODUCTION, INCLUDING ROYALTY INTERESTS.  IT IS
IMPOSED ON EVERY PERSON ENGAGED IN THE PRODUCTION IN OKLAHOMA OF
PETROLEUM, CRUDE OIL OR OTHER MINERAL OIL, AND NATURAL GAS AND
CASINGHEAD GAS.  THE TAX IS EXACTED IN LIEU OF ALL TAXES BY THE STATE
AND ITS POLITICAL SUBDIVISIONS ON PROPERTY RIGHTS IN MINERALS AND
MINERAL RIGHTS, PRODUCING LEASES, MACHINERY USED IN CONNECTION WITH ANY
OIL OR GAS WELL, THE OIL AND GAS DURING THE TAX YEAR IN WHICH IT IS
PRODUCED, AND ANY INVESTMENT IN ANY LEASES, MINERALS, OR OTHER
PROPERTY.  THE STATUTE AUTHORIZES THE STATE BOARD OF EQUALIZATION TO
RAISE OR LOWER THE RATE OF TAX TO EQUATE THE AMOUNT PAYABLE WITH THE
AMOUNT WHICH WOULD BE PAYABLE IF THE GENERAL AD VALOREM PROPERTY TAX
WERE ASSESSED AGAINST THE PROPERTY OF THE PRODUCERS SUBJECT TO
TAXATION.  THE BOARD'S RATE CHANGES ARE SUBJECT TO REVIEW BY THE STATE
SUPREME COURT.  FN9  IN CONSEQUENCE OF THESE PROVISIONS, THE TAX HAS
BEEN CONSTRUED CONSISTENTLY BY THE STATE COURTS TO BE A TAX ON THE
LESSEE'S PROPERTY, NOT AN OCCUPATION OR EXCISE TAX.  FN10 

THE PETROLEUM EXCISE TAX REQUIRES PAYMENT OF ONE MILL, FORMERLY ONE
EIGHTH OF ONE CENT,  FN11 PER BARREL ON EVERY BARREL OF PETROLEUM
PRODUCED IN OKLAHOMA.  THE STATUTE WAS ENACTED FIRST IN 1933 TO DEFRAY
THE EXPENSES OF ADMINISTERING THE STATE'S NEWLY ADOPTED PRORATION LAW
FN12  AND HAS BEEN REENACTED AT EACH SUBSEQUENT SESSION OF THE
LEGISLATURE.  FN13  THE TAX, UNLIKE THE GROSS PRODUCTION TAX, IS
CONSTRUED BY THE OKLAHOMA SUPREME COURT AS AN EXCISE TAX ON THE
PRODUCTION OF OIL.  BARNSDALL REFINERIES V. OKLAHOMA TAX COMMISSION,
171 OKLA. 145, AFFIRMED, 296 U.S. 521. 

IN NO. 40 THE OKLAHOMA TAX COMMISSION, PETITIONER HERE, ASSESSED BOTH
GROSS PRODUCTION AND PETROLEUM EXCISE TAXES AGAINST THE TEXAS COMPANY
FOR PRODUCTION, LESS ROYALTIES TO THE INDIAN LESSORS,  FN14  DURING
SEPTEMBER, OCTOBER AND NOVEMBER, 1942.  IN NO. 41 THE COMMISSION
LIKEWISE ASSESSED BOTH TAXES, LESS ROYALTIES, ON THE MAGNOLIA COMPANY'S
PRODUCTION FOR VARIOUS PERIODS BETWEEN JUNE 1, 1942, AND MARCH 1,
1946.  THE ORDERS WERE ENTERED AFTER THE CASES WERE CONSOLIDATED FOR
HEARING BEFORE THE COMMISSION AND WERE THUS HEARD BY IT. 

IN NO. 40 THE TEXAS COMPANY PAID THE TAXES UNDER PROTEST AND BROUGHT
SUIT TO RECOVER THEM IN AN OKLAHOMA TRIAL COURT.  AFTER HEARING, THAT
COURT SUSTAINED THE COMMISSION'S DEMURRER TO THE COMPANY'S AMENDED
PETITION AND ORDERED IT DISMISSED.  APPEAL WAS DULY TAKEN TO THE STATE
SUPREME COURT.  IN NO. 41, FOLLOWING A DIFFERENT STATUTORY PROCEDURE,
THE MAGNOLIA COMPANY APPEALED FROM THE ASSESSMENTS AGAINST IT DIRECTLY
TO THAT COURT. 

IN BOTH CASES THE SUPREME COURT OF OKLAHOMA, WITH ONE JUDGE
DISSENTING, HELD THE ASSESSMENTS INVALID.  THE DECISIONS RESTED FLATLY
ON THE GROUND THAT THE LESSEE WAS AN INSTRUMENTALITY OF THE FEDERAL
GOVERNMENT AND AS SUCH, UNDER PRIOR AND CONTROLLING DECISIONS OF THIS
COURT, PARTICULARLY IN THE LARGE OIL, GIPSY OIL, AND BARNSDALL
REFINERIES CASES, SUPRA, NOT SUBJECT TO THE TAXES IN QUESTION N15.  IN
THE TEXAS COMPANY CASE THE COURT EXPRESSLY DISTINGUISHED HELVERING V.
MOUNTAIN PRODUCERS CORP., SUPRA, ON THE GROUND THAT THE DECISION IN
THAT CASE RELATED TO INCOME TAXES ASSESSED AGAINST THE LESSEE THERE
SITUATED AS WERE THE LESSEES HERE.  THE OPINION, INDICATING THE
WRITER'S PERSONAL VIEW THAT RECONSIDERATION OF THE EARLIER DECISIONS
WELL MIGHT BE SOUGHT, NEVERTHELESS STATED: 

"BUT IT IS THOUGHT BEYOND THE POWER OF THIS COURT TO NOW ENGAGE IN
SUCH RECONSIDERATION, IN VIEW OF THE CITED DECISIONS OF THE HIGHER
AUTHORITY WHICH THUS FAR WHOLLY SUSTAIN THE CLAIM OF (THE TEXAS
COMPANY) TO IMMUNITY FROM THE TAX HERE INVOLVED. 

"UPON QUESTIONS OF FEDERAL LAW, CITIZENS AND THEIR ATTORNEYS HAVE THE
RIGHT TO RELY UPON DECISIONS OF THE SUPREME COURT OF THE UNITED STATES,
AND UPON SUCH QUESTIONS IT IS OUR FIXED DUTY TO FOLLOW SUCH DECISIONS,
LEAVING TO THE UNITED STATES CONGRESS OR SUPREME COURT THE MAKING OF
THE NECESSARY CHANGES IN SUCH LEGAL RULES." 

FROM THE STATE SUPREME COURT'S DECISIONS  FN16  THE OKLAHOMA TAX
COMMISSION FILED APPEALS IN THIS COURT.  WE DISMISSED THE APPEALS FOR
WANT OF JURISDICTION.  BUT TREATING THEM AS APPLICATIONS FOR
CERTIORARI,  FN17  WE GRANTED THE WRITS AND CONSOLIDATED THE CASES FOR
ARGUMENT.  333 U.S. 870.  THE SOLICITOR GENERAL WAS REQUESTED TO FILE A
BRIEF AS AMICUS CURIAE. 

    I. 

BUT FOR THE COURSE OF DECISION HERE FROM CHOCTAW, O. & G.R. CO. V.
HARRISON, 235 U.S. 292, DECIDED IN 1914, TO OKLAHOMA V. BARNSDALL
REFINERIES, 296 U.S. 521, DECIDED IN 1936, THE PROBLEMS OF TAXATION AND
INTERGOVERNMENTAL IMMUNITY THESE CASES PRESENT WOULD SEEM SUBJECT TO
SOLUTION ON WELL-SETTLED OR FAIRLY OBVIOUS LEGAL PRINCIPLES. 

IT HAS LONG BEEN ESTABLISHED THAT PROPERTY OWNED BY A PRIVATE PERSON
AND USED BY HIM IN PERFORMING SERVICES FOR THE FEDERAL GOVERNMENT IS
SUBJECT TO STATE AND LOCAL AD VALOREM TAXES.  FN18  AND THE OIL AND GAS
PRODUCED IS, OF COURSE, SUBJECT TO SUCH TAXATION.  INDIAN TERRITORY
ILLUMINATING OIL CO. V. BOARD OF EQUALIZATION, 288 U.S. 325.  BOTH BY
THE SUBSTANCE OF THE STATUTE'S EXPLICIT PROVISIONS AND BY THE
CONSISTENT CONSTRUCTION OF THE OKLAHOMA SUPREME COURT, FN19  THAT
STATE'S SO-CALLED GROSS PRODUCTION TAX IN ITS PRESENTLY APPLICABLE FORM
IS A TAX ON THE LESSEE'S PROPERTY USED IN CARRYING OUT ITS CONTRACTUAL
OBLIGATIONS WITH THE FEDERAL GOVERNMENT AND ON THE OIL AND GAS DURING
THE TAX YEAR IN WHICH IT WAS PRODUCED.  THE TAX IS LEVIED EXPRESSLY IN
LIEU OF ALL PROPERTY TAXES WHICH THE STATE MIGHT CONSTITUTIONALLY
IMPOSE IN AD VALOREM FORM, THE GROSS PRODUCTION LEVY BEING A TENTATIVE
MEASURE FOR THE VALUE OF THAT PROPERTY.  TO GUARD AGAINST THAT
MEASURE'S BEING UTILIZED TO LAY IN EFFECT A TAX NOT ACTUALLY OF THAT
CHARACTER, THE STATE BOARD OF EQUALIZATION IS AUTHORIZED, INDEED IS
REQUIRED UPON COMPLAINT, TO EQUATE THE AMOUNT PAYABLE WITH WHAT WOULD
BE PAYABLE IF THE GENERAL AD VALOREM TAX WERE ASSESSED AGAINST THE
PROPERTY OF THE PRODUCING LESSEES SUBJECT TO TAXATION, WITH PROVISION
FOR JUDICIAL REVIEW OF THE BOARD'S ACTION. 

UNEMBARRASSED BY SOME OF THIS COURT'S PRIOR DECISIONS, THEREFORE,
OKLAHOMA'S SO-CALLED GROSS PRODUCTION TAX WOULD SEEM TO BE SUSTAINED BY
THE WELL-ESTABLISHED LINE OF DECISIONS CITED ABOVE.  FN20 

MOREOVER, EVEN IF THE STATUS OF RESPONDENTS AS FEDERAL
INSTRUMENTALITIES, IN THE SENSE IN WHICH THEY USE THE TERM, WERE FULLY
CONCEDED, IT SEEMS DIFFICULT TO IMAGINE HOW ANY SUBSTANTIAL
INTERFERENCE WITH PERFORMING THEIR FUNCTIONS AS SUCH IN DEVELOPING THE
LEASEHOLDS COULD BE THOUGHT TO FLOW FROM REQUIRING THEM TO PAY THE
SMALL TAX OKLAHOMA EXACTS TO SATISFY THEIR SHARES OF THE STATE'S
EXPENSE IN MAINTAINING AND ADMINISTERING ITS PRORATION PROGRAM.  THAT
SYSTEM WORKS FOR RESPONDENTS' BENEFIT IN PERFORMING THEIR PRODUCING
FUNCTION, AS IT DOES FOR THE BENEFIT OF ALL OTHER PRODUCERS, BY
STABILIZING PRODUCTION, ELIMINATING WASTE, AND PREVENTING RUNAWAY
COMPETITION IN AN INDUSTRY NOTORIOUS FOR THOSE EVILS IN THE ABSENCE OF
SOME SUCH CONTROL.  CF. RAILROAD COMMISSION V. ROWAN & NICHOLS OIL CO.,
310 U.S. 573; REPUBLIC GAS CO. V. OKLAHOMA, 334 U.S. 62, DISSENTING
OPINION PART III, 89.  INDEED RESPONDENTS DO NOT CLAIM THEY ARE EXEMPT
FROM THE PLAN'S REGULATORY FEATURES.  THEY CLAIM ONLY THAT THEY ARE
CONSTITUTIONALLY IMMUNE FROM CONTRIBUTING TO THE PLAN'S SUPPORT.  AS A
MATTER ENTIRELY FRESH, THE CONTENTION WOULD NOT SEEM WEIGHTY. 

                                 II. 

BUT NEITHER ISSUE IS FRESH.  EACH IS COMPLICATED BY THIS COURT'S
PRIOR DECISIONS SQUARELY RULING THAT THE TAXES ARE INVALID AS
UNCONSTITUTIONAL INTRUSIONS BY THE STATE UPON THE PERFORMANCE OF
FEDERAL FUNCTIONS.  THOSE DECISIONS HAVE NOT BEEN EXPLICITLY
OVERRULED.  BUT IT IS STRONGLY URGED THAT OUR LATER DECISIONS,
ESPECIALLY IN HELVERING V. MOUNTAIN PRODUCERS CORP., SUPRA, HAVE
STRICKEN THE FOUNDATION FROM BENEATH THE GIPSY OIL, LARGE OIL AND
BARNSDALL REFINERIES DECISIONS, SUPRA, SO THAT THE LATTER NO LONGER CAN
STAND IN REASON AND CONSISTENCY WITH THE FORMER. 

IT IS TRUE THAT THIS COURT'S MORE RECENT PRONOUNCEMENTS HAVE BEATEN A
FAIRLY LARGE RETREAT FROM ITS FORMERLY PREVAILING IDEAS CONCERNING THE
BREADTH OF SO-CALLED INTERGOVERNMENTAL IMMUNITIES FROM TAXATION, A
RETREAT WHICH HAS RUN IN BOTH DIRECTIONS - TO RESTRICT THE SCOPE OF
IMMUNITY OF PRIVATE PERSONS SEEKING TO CLOTHE THEMSELVES WITH
GOVERNMENTAL CHARACTER FROM BOTH FEDERAL AND STATE TAXATION.  THE
HISTORY OF THE IMMUNITY, BY AND LARGE IN BOTH ASPECTS, REPRESENTS A
RISING OR EXPANDING CURVE, TAPERING OFF INTO A FALLING OR CONTRACTING
ONE. 

OUR PRESENT PROBLEM LIES ON THE CONSTITUTIONAL LEVEL.  IT REQUIRES
RECONSIDERATION OF FORMER DECISIONS SPECIFICALLY IN POINT, TOGETHER
WITH LATER ONES DEVIATING IN RATIONALE.  IT IS OF SUBSTANTIAL
IMPORTANCE BOTH FOR THE STATES' POWERS OF TAXATION AND FOR THE SUBJECTS
ON WHICH THEY MAY IMPINGE.  MOREOVER, EVEN THOUGH THE IMMEDIATE
QUESTIONS ARE CLOSELY RELATED TO FEDERAL POLICIES CONCERNING INDIAN
LANDS, THEY ARE EQUALLY TANGENT TO CONSIDERATIONS AFFECTING OTHER TYPES
OF SITUATION RAISING QUESTIONS OF IMMUNITY.  FOR THESE REASONS IT WILL
NOT BE AMISS TO CONSIDER THE QUESTIONS IN THE CONTEXT OF TWO
CONFLICTING COURSES OF DECISION. 

BEFORE WE TURN TO THE SURVEY, HOWEVER, TWO DELIMITATIONS OF THE
SPECIFIC ISSUES SHOULD BE MADE. 

THESE CASES PRESENT NO QUESTION CONCERNING THE IMMUNITY OF THE INDIAN
LANDS THEMSELVES FROM STATE TAXATION.  THERE IS NO POSSIBILITY THAT
ULTIMATE LIABILITY FOR THE TAXES MAY FALL UPON THE OWNER OF THE LAND. 
CF. WILSON V. COOK, 327 U.S. 474, DISSENTING OPINION, 489.  NOR, AS HAS
BEEN NOTED, DO THE CASES INVOLVE CHALLENGES TO THE IMMUNITY FROM STATE
TAXATION OF ROYALTY OIL, THE INDIAN'S SHARE OF PRODUCTION.  FN21

                                 III. 

DESPITE THE POSSIBILITY THAT THE PROSPECT OF TAXATION BY THE STATE
MAY REDUCE THE AMOUNT THE UNITED STATES MIGHT RECEIVE FROM THE SALE OF
ITS PROPERTY, IT IS WELL ESTABLISHED THAT PROPERTY PURCHASED BY A
PRIVATE PERSON FROM THE FEDERAL GOVERNMENT BECOMES A PART OF THE
GENERAL MASS OF PROPERTY IN THE STATE AND MUST BEAR ITS FAIR SHARE OF
THE EXPENSES OF LOCAL GOVERNMENT.  THE THEORETICAL BURDEN WHICH STATE
AD VALOREM PROPERTY TAXATION THUS IMPOSES UPON THE FEDERAL GOVERNMENT
IS REGARDED AS TOO REMOTE AND INDIRECT TO JUSTIFY TAX IMMUNITY FOR
PROPERTY PURCHASED FROM THAT GOVERNMENT.  NEW BRUNSWICK V. UNITED
STATES, 276 U.S. 547; FORBES V. GRACEY, 94 U.S. 762; TUCKER V.
GERGUSON, 22 WALL.  527; SEE WESTON V. CHARLESTON, 2 PET. 449, 468. 
ALSO SUBJECT TO LOCAL AD VALOREM TAXATION, AS HAS BEEN NOTED ABOVE,
FN22  IS PROPERTY OWNED BY A PRIVATE PARTY AND USED BY HIM IN
PERFORMING SERVICES FOR THE FEDERAL GOVERNMENT.  WHERE OIL PRODUCED BY
A PRIVATE LESSEE FROM RESTRICTED INDIAN LANDS WAS OWNED SOLELY BY THE
LESSEE AND HAD BEEN REMOVED FROM THE LEASED LANDS AND STORED IN THE
LESSEE'S TANKS, IT WAS HELD SUBJECT TO STATE AD VALOREM TAXATION. 
INDIAN TERRITORY ILLUMINATING OIL CO. V. BOARD OF EQUALIZATION, 288
U.S. 325.  FN23  AND EQUIPMENT USED BY A LESSEE OF RESTRICTED INDIAN
LANDS HAS BEEN HELD SUBJECT TO THE SAME SORT OF EXACTION.  TABER V.
INDIAN TERRITORY ILLUMINATING OIL CO., 300 U.S. 1.  CF. THOMAS V. GAY,
169 U.S. 264, SUSTAINING A STATE TAX ON CATTLE GRAZING ON TRIBAL LANDS
LEASED FROM INDIANS BY THE NON-INDIAN OWNER OF THE CATTLE. 

ANOMALOUS IN THE LIGHT OF THESE RULINGS WAS THE EVOLUTION OF A LINE
OF DECISIONS OF THIS COURT CONDEMNING FORMS OF TAXATION WHICH WOULD
HAVE IMPOSED NO MORE DIRECT OR SUBSTANTIAL BURDEN UPON THE UNITED
STATES THAN WOULD AN AD VALOREM PROPERTY TAX APPLIED TO PROPERTY
PURCHASED FROM THE UNITED STATES.  PRIVATE LESSEES OF RESTRICTED OR
TRIBAL INDIAN LANDS CAME TO BE HELD "FEDERAL INSTRUMENTALITIES" LIKE
THE LANDS THEMSELVES, AND SO IMMUNE FROM VARIOUS FORMS OF STATE
TAXATION RANGING FROM A GROSS PRODUCTION TAX ON PRODUCTION FROM THE
LEASED LANDS TO A TAX UPON THE LESSEE'S NET INCOME.  THE THEORY OF THE
COURT WAS THE ONE WHICH WAS REJECTED IN DIRECTLY ANALOGOUS CASES: A
STATE TAX ON THE LESSEE, THE LEASE, OR THE PROFITS FROM THE LEASE WOULD
BE "A DIRECT HAMPER UPON THE EFFORT OF THE UNITED STATES TO MAKE THE
BEST TERMS THAT IT CAN FOR ITS WARDS."  GILLESPIE V. OKLAHOMA, 257 U.S.
501, 506.  ALTERNATIVELY, "A TAX UPON THE LEASES IS A TAX UPON THE
POWER TO MAKE THEM, AND COULD BE USED TO DESTROY THE POWER TO MAKE
THEM."  INDIAN TERRITORY ILLUMINATING OIL CO. V. OKLAHOMA, 240 U.S.
522, 530. 

THE HISTORY OF THIS DEVELOPMENT IS A PROGRESSION "FROM EXEMPTION OF
THE GROSS INCOME OF THE LESSEE OF INDIAN LANDS  ...  THROUGH EXEMPTION
OF NET RECEIPTS TO SERIOUS IMPAIRMENT OF THE TAXING POWERS OF
OKLAHOMA."  COHEN, HANDBOOK OF FEDERAL INDIAN LAW 257, N. 29(1942). 
THE DEVELOPMENT IS AN OUTGROWTH AND A PROGRESSIVE EXTENSION OF EARLY
RULINGS THAT TRIBAL LANDS THEMSELVES ARE IMMUNE FROM STATE TAXATION. 
FN24  MORE IMMEDIATELY IT STEMS FROM THE LATER RULING THAT ALLOTTED
INDIAN LANDS HELD IN TRUST BY THE UNITED STATES WERE "AN
INSTRUMENTALITY EMPLOYED BY THE UNITED STATES FOR THE BENEFIT AND
CONTROL OF THIS DEPENDENT RACE," AND SO WERE IMMUNE FROM STATE
TAXATION.  UNITED STATES V. RICKERT, 188 U.S. 432, 437-439. 

IN 1908 OKLAHOMA IMPOSED, IN ADDITION TO AD VALOREM PROPERTY TAXES, A
GROSS PRODUCTION TAX, THE PROGENITOR OF THE PRESENT TAX BEARING THAT
LABEL, ON OIL, GAS AND OTHER MINERALS PRODUCED WITHIN THE STATE.  OKLA.
LAWS, 1908, C. 71, ART. II, SEC. 6.  THE OKLAHOMA COURT HELD THAT THE
1910 REENACTMENT OF THE STATUTE  FN25  IMPOSED A PROPERTY TAX. 
MCALESTER-EDWARDS COAL CO. V. TRAPP, 43 OKLA. 510.  BUT THE STATUTE, AS
APPLIED TO A LESSEE OF RESTRICTED INDIAN COAL LANDS, WAS HELD BY THIS
COURT TO BE AN OCCUPATIONAL TAX AND SO AN UNCONSTITUTIONAL BURDEN ON
THE LESSEE, WHO WAS HELD TO BE AN INSTRUMENTALITY OF THE FEDERAL
GOVERNMENT.  CHOCTAW, O. & G.R. CO. V. HARRISON, SUPRA. NEXT THE COURT
HELD THE LEASE ITSELF A FEDERAL INSTRUMENTALITY IMMUNE FROM STATE
TAXATION.  INDIAN TERRITORY ILLUMINATING OIL CO. V. OKLAHOMA, SUPRA. 

THE OKLAHOMA LEGISLATURE REVISED THE GROSS PRODUCTION TAX STATUTE IN
1915 AND AGAIN IN 1916, A PRINCIPAL CHANGE BEING THE PROVISION THAT THE
TAX WAS IN LIEU OF ALL OTHER AD VALOREM TAXES.  FN26 THE REVISED TAX
WAS HELD BY THE OKLAHOMA SUPREME COURT TO BE A PROPERTY TAX.  FN27  BUT
THIS COURT REJECTED THAT CONSTRUCTION SUB SILENTIO AND INVALIDATED THE
TAX IN MEMORANDUM OPINIONS CITING ONLY THE CHOCTAW, O. & G.R. CO. CASE
(235 U.S. 292) AND THE INDIAN TERRITORY ILLUMINATING OIL CO. CASE (240
U.S. 522).  HOWARD V. GIPSY OIL CO., 247 U.S. 503; LARGE OIL CO. V.
HOWARD, 248 U.S. 549. 

SUSPICIONS THAT THIS COURT HAD OVERLOOKED THE FACT THAT UNDER THE
REVISED STATUTE THE GROSS PRODUCTION TAX WAS IN LIEU OF RATHER THAN IN
ADDITION TO ALL OTHER AD VALOREM PROPERTY TAXES, FN28  WERE DISPELLED
BY MR. JUSTICE HOLMES' REMARK IN GILLESPIE V. OKLAHOMA, SUPRA AT 504
505, THAT THE STATUTORY CHANGE HAD BEEN NOTICED AND REGARDED AS
IMMATERIAL.  FN29  IF A GROSS RECEIPTS TAX WAS A BURDEN ON THE FEDERAL
GOVERNMENT "SO AS TO INTERFERE WITH THE PERFORMANCE OF ITS FUNCTIONS,
IT COULD NOT BE SAVED BECAUSE IT WAS IN LIEU OF A TAX UPON PROPERTY OR
WAS SO CHARACTERIZED."  SEE JAMES V. DRAVO CONTRACTING CO., 302 U.S.
134, 158. 

THE HIGH-WATER MARK OF IMMUNITY FOR NON-INDIAN LESSEES OF RESTRICTED
AND ALLOTTED INDIAN LANDS CAME IN 1922 WHEN THE GILLESPIE DECISION,
SUPRA, INVALIDATED AN OKLAHOMA NET INCOME TAX UPON INCOME DERIVED BY A
LESSEE FROM SALES OF HIS SHARE OF OIL PRODUCED FROM RESTRICTED LANDS. 

THE NON-INDIAN LESSEE'S IMMUNITY WAS LAST SUSTAINED HERE BY OKLAHOMA
V. BARNSDALL REFINERIES, SUPRA.  THAT DECISION HELD, ON APPLICATION OF
A RULE OF STRICT CONSTRUCTION OF CONGRESSIONAL WAIVERS, THAT CONGRESS'
EXPRESS WAIVER OF IMMUNITY FROM GROSS PRODUCTION TAXES ON OIL PRODUCED
FROM THE SPECIFIED INDIAN LANDS DID NOT EXTEND TO PETROLEUM EXCISE
TAXES.  THE STATE DID NOT CHALLENGE THE IMPLIED CONSTITUTIONAL IMMUNITY
BUT PITCHED ITS ARGUMENT ON THE GROUND OF STATUTORY EXEMPTION.  FN30 

THE INSTRUMENTALITY DOCTRINE HAS BEEN APPLIED TO CONFER A CORRELATIVE
IMMUNITY UPON PRIVATE LESSEES OF STATEOWNED LANDS.  THE TEXAS RULE THAT
OIL AND GAS LEASES ARE PRESENT SALES TO THE LESSEES OF THE OIL AND GAS
IN PLACE CAUSED THIS COURT TO SUSTAIN THE IMPOSITION OF THE FEDERAL
INCOME TAX UPON INCOME OF THE LESSEE DERIVED FROM THE SALE OF OIL AND
GAS PRODUCED FROM LANDS LEASED FROM THAT STATE.  IT WAS OBSERVED THAT "
...  THE REMOTE AND INDIRECT EFFECTS UPON THE ONE GOVERNMENT OF SUCH A
NON-DISCRIMINATORY TAX BY THE OTHER HAVE NEVER BEEN CONSIDERED ADEQUATE
GROUNDS FOR THUS AIDING THE ONE AT THE EXPENSE OF THE TAXING POWER OF
THE OTHER."  GROUP NO. 1 OIL CORP. V. BASS, 283 U.S. 279, 282. 

ALTHOUGH THIS DECISION MAY BE TAKEN TO MARK A TURNING POINT IN
EXPANSION OF THE LESSEE'S IMMUNITY, IT WAS NOT IMMEDIATELY PERMITTED TO
IMPAIR THE GILLESPIE RATIONALE.  A TAX ON INCOME WOULD BE NO GREATER
BURDEN WHERE, UNDER APPLICABLE STATE LAW, "TITLE" TO THE OIL DID NOT
"PASS" UNTIL THE OIL WAS REMOVED FROM THE GROUND.  AND ALTHOUGH
JUSTICES BRANDEIS, STONE, ROBERTS AND CARDOZO CONTENDED THAT THE
GILLESPIE DECISION COULD NOT STAND CONSISTENTLY WITH THE PRINCIPLES
WHICH HAD BEEN REAFFIRMED IN THE GROUP NO. 1 OIL CASE, A MAJORITY OF
ONE IN BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393, PROVIDED A
COROLLARY TO THE RULE OF THE GILLESPIE CASE.  THIS WAS DONE BY HOLDING
THAT THE FEDERAL GOVERNMENT WAS BARRED FROM TAXING THE INCOME OF A
LESSEE OF STATE LANDS AS THE STATE WAS BARRED FROM TAXING THE INCOME OF
THE LESSEE OF FEDERAL LANDS. 

A PARALLEL IMMUNITY FROM STATE OCCUPATIONAL OR PRIVILEGE TAXES WAS
ONCE ACCORDED PRIVATE CONTRACTORS WITH, OR AGENCIES OF, THE GOVERNMENT,
WILLIAMS V. TALLADEGA, 226 U.S. 404, NOTWITHSTANDING THE VENERABLE RULE
THAT THE PROPERTY OF SUCH A CONTRACTOR OR AGENCY IS LIABLE TO STATE
PROPERTY TAXATION.  SEE THE CASES CITED SUPRA IN NOTE 18.  DECISIONS
CURTAILING THIS IMMUNITY WERE PRESAGED BY METCALF & EDDY V. MITCHELL(,
269 U.S. 514.  IT HELD SUBJECT TO FEDERAL INCOME TAXATION INCOME
RECEIVED BY A CONSULTING ENGINEER FROM A STATE FOR SERVICES IN
CONNECTION WITH TEMPORARY WORK.  EQUALLY SIGNIFICANT WAS ALWARD V.
JOHNSON, 282 U.S. 509, 514, WHICH SUSTAINED A STATE TAX MEASURED BY
GROSS RECEIPTS ON THE PROPERTY OF A STAGE LINE ENGAGED IN CARRYING THE
MAILS.  FN31 

LATER THIS COURT SUSTAINED A STATE TAX ON THE GROSS RECEIPTS OF A
CONTRACTOR WITH THE FEDERAL GOVERNMENT, JAMES V. DRAVO CONTRACTING CO.,
302 U.S. 134; SILAS MASON CO. V. TAX COMMISSION, 302 U.S. 186; A STATE
TAX ON THE NET INCOME OF SUCH A CONTRACTOR, ATKINSON V. TAX COMMISSION,
303 U.S. 20; STATE SALES AND USE TAXES ON PURCHASES OF MATERIALS USED
BY A CONTRACTOR IN PERFORMING A COST-PLUS CONTRACT WITH THE UNITED
STATES, ALABAMA V. KING & BOOZER, 314 U.S. 1; CURRY V. UNITED STATES,
314 U.S. 14; AND A STATE SEVERANCE TAX IMPOSED ON A CONTRACTOR WHO
SEVERED AND PURCHASED TIMBER FROM LANDS OWNED BY THE UNITED STATES,
WILSON V. COOK, 327 U.S. 474.  IT WAS POINTED OUT THAT 

"  ...  THE CONSTITUTION, UNAIDED BY CONGRESSIONAL LEGISLATION,  ...
(DOES NOT PROHIBIT) A TAX EXACTED FROM THE CONTRACTORS MERELY BECAUSE
IT IS PASSED ON ECONOMICALLY, BY THE TERMS OF THE CONTRACT OR
OTHERWISE, AS A PART OF THE CONSTRUCTION COST TO THE GOVERNMENT.  SO
FAR AS SUCH A NON-DISCRIMINATORY STATE TAX UPON THE CONTRACTOR ENTERS
INTO THE COST OF THE MATERIALS TO THE GOVERNMENT, THAT IS BUT A NORMAL
INCIDENT OF THE ORGANIZATION WITHIN THE SAME TERRITORY OF TWO
INDEPENDENT TAXING SOVEREIGNTIES.  THE ASSERTED RIGHT OF THE ONE TO BE
FREE OF TAXATION BY THE OTHER DOES NOT SPELL IMMUNITY FROM PAYING THE
ADDED COSTS, ATTRIBUTABLE TO THE TAXATION OF THOSE WHO FURNISH SUPPLIES
TO THE GOVERNMENT AND WHO HAVE BEEN GRANTED NO TAX IMMUNITY."  ALABAMA
V. KING & BOOZER, 314 U.S. 1, 8-9. 

THE OPPORTUNITY TO REEXAMINE THE GILLESPIE AND CORONADO CASES AROSE
IN 1938 IN HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376, THE
DECISION UPON WHICH THE OKLAHOMA COMMISSION RELIES MOST STRONGLY TO
SECURE REVERSAL OF THE JUDGMENTS IN THE PRESENT CASES.  THE MOUNTAIN
PRODUCERS CASE INVOLVED THE APPLICATION OF THE FEDERAL INCOME TAX LAW
TO A CESTUI OF AN EXPRESS TRUST WHICH RECEIVED THE PROCEEDS OF THE SALE
OF OIL TAKEN FROM SCHOOL LANDS OWNED BY THE STATE OF WYOMING.  THE
COURT DECLINED TO DISTINGUISH THE GILLESPIE AND CORONADO DECISIONS ON
THE NARROW GROUND AVAILABLE, THE FACT THAT THE TAXPAYER WAS A CESTUI OF
A TRUST WHICH RECEIVED THE PROCEEDS OF THE SALE OF THE OIL RATHER THAN
THE LESSEE ITSELF.  303 U.S. AT 383.  FN32 

RATHER THE COURT SOUGHT BROADER GROUNDING, WHICH LAY IN
RECONSIDERATION OF THE FOUNDATIONS OF THE GILLESPIE AND CORONADO
DECISIONS.  THE OPINION STATED: 

"THE GROUND OF THE DECISION IN THE GILLESPIE CASE, AS STATED BY MR.
JUSTICE HOLMES IN SPEAKING FOR THE COURT, WAS THAT 'A TAX UPON THE
LEASES' WAS 'A TAX UPON THE POWER TO MAKE THEM, AND COULD BE USED TO
DESTROY THE POWER TO MAKE THEM' (240 U.S. P. 530) AND THAT A TAX 'UPON
THE PROFITS OF THE LEASES' WAS 'A DIRECT HAMPER UPON THE EFFORT OF THE
UNITED STATES TO MAKE THE BEST TERMS THAT IT CAN FOR ITS WARDS.'  (257
U.S. AT 506.)  IN THE LIGHT OF THE EXPANDING NEEDS OF STATE AND NATION,
THE INQUIRY HAS BEEN PRESSED WHETHER THIS CONCLUSION HAS ADEQUATE BASIS
...  "  303 U.S. AT 384. 

NOTHING THAT IT HAD HELD THAT THE GILLESPIE RULING SHOULD BE LIMITED
STRICTLY TO CASES CLOSELY ANALOGOUS,  FN33  AND ASSERTING THAT "THE
DISTINCTIONS THUS MAINTAINED HAVE ATTENUATED ITS TEACHING AND RAISED
GRAVE DOUBT AS TO WHETHER IT SHOULD LONGER BE SUPPORTED," 303 U.S. AT
384-385, THE COURT WENT ON TO SAY: 

"IN NUMEROUS DECISIONS WE HAVE HAD OCCASION TO DECLARE THE COMPETING
PRINCIPLE, BUTTRESSED BY THE MOST COGENT CONSIDERATIONS, THAT THE POWER
TO TAX SHOULD NOT BE CRIPPLED 'BY EXTENDING THE CONSTITUTIONAL
EXEMPTION FROM TAXATION TO THOSE SUBJECTS WHICH FALL WITHIN THE GENERAL
APPLICATION OF NONDISCRIMINATORY LAWS, AND WHERE NO DIRECT BURDEN IS
LAID UPON THE GOVERNMENTAL INSTRUMENTALITY AND THERE IS ONLY REMOTE, IF
ANY, INFLUENCE UPON THE EXERCISE OF THE FUNCTIONS OF GOVERNMENT.' 
WILLCUTS V. BUNN, 282 U.S. 216, 225, AND ILLUSTRATIONS THERE CITED." 
303 U.S. AT 385. 

THAT COMPETING PRINCIPLE THE COURT FOUND APPLICABLE TO THE CASE
BEFORE IT AND TO REQUIRE THAT THE DECISIONS IN THE GILLESPIE AND
CORONADO CASES BE OVERRULED.  REJECTING AS INSUBSTANTIAL THE
DISTINCTION BASED ON THE PASSAGE OF TITLE TO THE OIL AT THE TIME OF
MAKING THE LEASE, COMPARE GROUP NO. 1 OIL CORP. V. BASS, SUPRA, WITH
BURNET V. CORONADO OIL & GAS CO., SUPRA, AND AFTER REVIEWING VARIOUS
OTHER DECISIONS DENYING THE IMMUNITY WHEN CLAIMED BY PRIVATE PERSONS,
303 U.S. AT 385-386, THE COURT SAID: 

"THESE DECISIONS IN A VARIETY OF APPLICATIONS ENFORCE WHAT WE DEEM TO
BE THE CONTROLLING VIEW - THAT IMMUNITY FROM NON-DISCRIMINATORY
TAXATION SOUGHT BY A PRIVATE PERSON FOR HIS PROPERTY OR GAINS BECAUSE
HE IS ENGAGED IN OPERATIONS UNDER A GOVERNMENT CONTRACT OR LEASE CANNOT
BE SUPPORTED BY MERELY THEORETICAL CONCEPTIONS OF INTERFERENCE WITH THE
FUNCTIONS OF GOVERNMENT.  REGARD MUST BE HAD TO SUBSTANCE AND DIRECT
EFFECTS."  303 U.S. AT 386. 

               IV. 

RESPONDENTS STRONGLY URGE THAT THE MOUNTAIN PRODUCERS DECISION IS NOT
CONTROLLING OR EFFECTIVE TO REQUIRE REVERSAL IN THESE CASES, SINCE IT
INVOLVED A TAX ON NET INCOME RATHER THAN GROSS PRODUCTION AND EXCISE
TAXES.  AND THEY INSIST THAT A SHARP LINE SHOULD BE DRAWN BETWEEN WHAT
THEY CALL LESSEES PERFORMING A GOVERNMENTAL FUNCTION AND INDEPENDENT
CONTRACTORS DOING WORK FOR THE GOVERNMENT.  FN34  THE LATTER
DISTINCTION IS LARGELY, IF NOT ALTOGETHER VERBAL, IN THE CONTEXT OF THE
FACT SITUATIONS IN THESE CASES.  AS FOR THE FORMER DIFFERENCE, ALTHOUGH
THE COURT EXPLICITLY OVERRULED ONLY THE GILLESPIE AND CORONADO CASES,
THE GROUNDINGS OF THE MOUNTAIN PRODUCERS DECISION DO NOT PERMIT
LIMITING ITS EFFECTS TO SO NARROW AN APPLICATION.  FN35 

THE LANGUAGE LAST QUOTED ABOVE IS AS APPLICABLE TO THE PRESENT CASES
AS IT WAS TO THE GILLESPIE AND CORONADO DECISIONS.  THE TAXES HERE ARE
NONDISCRIMINATORY.  THE RESPONDENTS ARE "PRIVATE PERSONS" WHO SEEK
IMMUNITY "FOR THEIR PROPERTY OR GAINS BECAUSE THEY ARE ENGAGED IN
OPERATIONS UNDER A GOVERNMENT CONTRACT OR LEASE."  THE FUNCTIONS THEY
PERFORM IN OPERATING THE LEASES ARE HARDLY MORE GOVERNMENTAL IN
CHARACTER THAN THOSE PERFORMED BY LESSEES OF SCHOOL LANDS OR, INDEED,
BY MANY CONTRACTORS WITH THE GOVERNMENT.  THE LESSEES IN THE MOUNTAIN
PRODUCERS CASE STOOD IDENTICALLY WITH THE RESPONDENTS IN ALL THESE
RESPECTS.    MOREOVER THE BURDENS OF THE TAXES HERE, IF ANY OF A
CHARACTER LIKELY TO INTERFERE WITH RESPONDENTS IN CARRYING OUT THE
TERMS OF THEIR LEASES, ARE AS APPROPRIATELY TO BE JUDGED BY "REGARD
...  TO SUBSTANCE AND DIRECT EFFECTS," AND AS INAPPROPRIATELY TO BE
DETERMINED "BY MERELY THEORETICAL CONCEPTIONS OF INTERFERENCE WITH THE
FUNCTIONS OF GOVERNMENT," AS WERE THOSE IN THE MOUNTAIN PRODUCERS
CASE.  FN36  TRUE, AS RESPONDENTS SAY, A NET INCOME TAX MAY BE A STEP
FARTHER REMOVED FROM INTERFERING EFFECT THAN A GROSS PRODUCTION TAX OR
AN EXCISE TAX ON PRODUCTION.  BUT THIS ALL DEPENDS UPON THE RATE AT
WHICH EACH TAX IS LEVIED. 

TO THE ADAPTATION OF MARSHALL'S OFT-QUOTED APHORISM MADE BY MR.
JUSTICE MCKENNA IN INDIAN TERRITORY ILLUMINATING OIL CO. V. OKLAHOMA,
240 U.S. AT 530, AND FOLLOWED BY MR. JUSTICE HOLMES IN GILLESPIE V.
OKLAHOMA, 257 U.S. AT 505, NAMELY, THAT "A TAX UPON THE LEASES IS A TAX
UPON THE POWER TO MAKE THEM, AND COULD BE USED TO DESTROY THE POWER TO
MAKE THEM," CHIEF JUSTICE HUGHES IN THE MOUNTAIN PRODUCERS CASE DID NOT
EXPLICITLY MAKE THE REJOINDER GIVEN BY HOLMES IN ANOTHER CONNECTION,
"THE POWER TO TAX IS NOT THE POWER TO DESTROY WHILE THIS COURT SITS." 
PANHANDLE OIL CO. V. KNOX, 277 U.S. 218, 223.  BUT THIS WAS THE EFFECT
OF THE MOUNTAIN PRODUCERS DECISION, WHEN IN A SINGLE PARAGRAPH IT
CHALLENGED BOTH THE APHORISM AND THE ASSUMPTION THAT "A TAX UPON THE
PROFITS OF THE LEASES" WAS "A DIRECT HAMPER UPON THE EFFORT OF THE
UNITED STATES TO MAKE THE BEST TERMS THAT IT CAN FOR ITS WARDS." 

THE MOUNTAIN PRODUCERS CASE WAS NOT DECIDED ON NARROW, MERELY
TECHNICAL OR PRESUMPTIVE GROUNDS.  ITS VERY FOUNDATION WAS A
REPUDIATION OF THOSE INSUBSTANTIAL BASES FOR SECURING BROAD PRIVATE TAX
EXEMPTIONS, UNJUSTIFIED BY ACTUAL INTERFERING OR DESTRUCTIVE EFFECTS
UPON THE PERFORMANCE OF OBLIGATIONS TO OR WORK FOR THE GOVERNMENT,
STATE OR NATIONAL.  THE DECISION CAME AS THE RESULT OF EXPERIENCE AND
OF OBSERVATION OF THE CONSTANT WIDENING OF THE EXEMPTING PROCESS FROM
TAX TO TAX TO TAX. 

SINCE THAT DECISION, AS WE HAVE NOTED, THE PROCESS HAS BEEN REVERSED
IN DIRECTION.  TRUE INTERGOVERNMENTAL IMMUNITY REMAINS FOR THE MOST
PART.  BUT, SO FAR AS CONCERNS PRIVATE PERSONS CLAIMING IMMUNITY FOR
THEIR ORDINARY BUSINESS OPERATIONS (EVEN THOUGH IN CONNECTION WITH
GOVERNMENTAL ACTIVITIES), NO IMPLIED CONSTITUTIONAL IMMUNITY CAN REST
ON THE MERELY HYPOTHETICAL INTERFERENCES WITH GOVERNMENTAL FUNCTIONS
HERE ASSERTED TO SUSTAIN EXEMPTION.  IN THE LIGHT OF THE BROAD
GROUNDINGS OF THE MOUNTAIN PRODUCERS DECISION AND OF LATER DECISIONS,
WE CANNOT SAY THAT THE GIPSY OIL, LARGE OIL AND BARNSDALL REFINERIES
DECISIONS REMAIN IMMUNE TO THE EFFECTS OF THE MOUNTAIN PRODUCERS
DECISION AND OTHERS WHICH HAVE FOLLOWED IT.  THEY "ARE OUT OF HARMONY
WITH CORRECT PRINCIPLE," AS WERE THE GILLESPIE AND CORONADO DECISIONS
AND, ACCORDINGLY, THEY SHOULD BE, AND THEY NOW ARE, OVERRULED.  THIS
ACCORDS WITH THE RESULT REACHED IN SANTA RITA OIL CO. V. STATE BOARD OF
EQUALIZATION, 112 MONT. 359.  MOREOVER, SINCE THE DECISIONS IN CHOCTAW,
O. & G.R. CO. V. HARRISON, SUPRA, AND INDIAN TERRITORY ILLUMINATING OIL
CO. V. OKLAHOMA, SUPRA, REST UPON THE SAME FOUNDATIONS AS THOSE
UNDERLYING THE GIPSY OIL, LARGE OIL AND BARNSDALL REFINERIES DECISIONS,
INDEED SUPPLIED THOSE FOUNDATIONS, WE THINK THEY TOO SHOULD BE, AND
THEY NOW ARE, OVERRULED. 

WE DO NOT IMPLY, BY THIS DECISION, THAT CONGRESS DOES NOT HAVE POWER
TO IMMUNIZE THESE LESSEES FROM THE TAXES WE THINK THE CONSTITUTION
PERMITS OKLAHOMA TO IMPOSE IN THE ABSENCE OF SUCH ACTION.  FN37  THE
QUESTION WHETHER IMMUNITY SHALL BE EXTENDED IN SITUATIONS LIKE THESE IS
ESSENTIALLY LEGISLATIVE IN CHARACTER.  BUT CONGRESS HAS NOT CREATED AN
IMMUNITY HERE BY AFFIRMATIVE ACTION,  FN38  AND "THE IMMUNITY FORMERLY
SAID TO REST ON CONSTITUTIONAL IMPLICATION CANNOT NOW BE RESURRECTED IN
THE FORM OF STATUTORY IMPLICATION."  OKLAHOMA TAX COMMISSION V. UNITED
STATES, 319 U.S. 598, 604.  AND SEE GRAVES V. NEW YORK EX REL. O'KEEFE,
306 U.S. 466, 480:  "  ...  IF IT APPEARS THAT THERE IS NO GROUND FOR
IMPLYING A CONSTITUTIONAL IMMUNITY, THERE IS EQUALLY A WANT OF ANY
GROUND FOR ASSUMING ANY PURPOSE ON THE PART OF CONGRESS TO CREATE AN
IMMUNITY." 

THE OKLAHOMA SUPREME COURT APPEARS TO SUGGEST, THOUGH THE OPINIONS DO
NOT FLATLY SO STATE, AS A POSSIBLE ALTERNATIVE SUPPORT FOR ITS
CONCLUSION IN THESE CASES THAT "CONGRESS HAS ACTED ON THE THEORY THAT
SUCH IMMUNITY EXISTS IN THE CASE OF LEASES OF THIS CHARACTER UNLESS
WAIVED," THAT IS, SEVERAL CONGRESSIONAL ENACTMENTS PERMIT OKLAHOMA TO
IMPOSE A GROSS PRODUCTION TAX ON MINERALS PRODUCED FROM THE LANDS OF
THE OSAGES,  FN39  THE KAWS,  FN40  THE QUAPAWS,  FN41  AND THE FIVE
CIVILIZED TRIBES,  FN42  AND AUTHORIZE PAYMENT OF TAXES DUE ON ACCOUNT
OF THE INDIANS' ROYALTY INTEREST.  BUT CONGRESS' PURPOSE IN ENACTING
THESE STATUTES WAS THE REMOVAL OF THE IMMUNITIES OF THE INDIANS
THEMSELVES, IMMUNITIES WHICH ARE NOT CHALLENGED IN THESE CASES; THE
ACTION WAS OCCASIONED BY THE FAVORABLE ECONOMIC POSITION OF THE
PARTICULAR INDIANS.  FN43  THE RESULTING REMOVAL OF THE IMMUNITY OF
PRIVATE LESSEES OF THOSE INDIAN LANDS WAS AN INCIDENTAL EFFECT OF THIS
LEGISLATION. 

FINALLY, WE REFUSE TO INFER FROM MERE CONGRESSIONAL SILENCE APPROVAL
OF THE DOCTRINE OF IMMUNITY ENUNCIATED IN THE CHOCTAW, O. & G.R. CO.,
INDIAN TERRITORY ILLUMINATING OIL (240 U.S. 522), GIPSY OIL, LARGE OIL
AND BARNSDALL REFINERIES DECISIONS, SUPRA.  CONGRESS' SILENCE PRIOR TO
THE MOUNTAIN PRODUCERS DECISION DID NOT PRECLUDE THIS COURT FROM
CURTAILING THE LESSEE'S IMMUNITY IN THAT CASE; AND CONGRESS SEEMS TO
HAVE ACCEPTED THAT DECISION WITH EQUANIMITY.  CF. GIROUARD V. UNITED
STATES, 328 U.S. 61, 69-70; GRAVES V. NEW YORK EX REL. O'KEEFE, 306
U.S. 466, 479-480.  FN44  REVERSED AND REMANDED. 

FN1  INTERESTS IN THE LANDS TO WHICH THE UNITED STATES DOES NOT HOLD
TITLE ARE OF TWO KINDS: (1) UNDIVIDED INTERESTS ACQUIRED BY NON
INDIANS; (2) AN INTEREST (WHICH IS STILL RESTRICTED) CONVEYED TO THE
SON OF AN ALLOTTEE BY APPROVED NONCOMPETENT INDIAN DEEDS, PURSUANT TO
THE ACT OF MARCH 1, 1907, 34 STAT. 1018, 25 U.S.C. SEC. 405. 

FN2  FEBRUARY 8, 1887, 24 STAT. 388, AS AMENDED, 25 U.S.C. SEC. 331
ET SEQ. 

FN3  THE ALLOTMENTS WERE MADE TO MEMBERS OF THE APACHE AND COMANCHE
TRIBES PURSUANT TO THE AGREEMENT APPROVED BY CONGRESS ON JUNE 6, 1900,
31 STAT. 676.  MEMBERS OF THE CITIZEN BAND OF THE POTTAWATOMIE TRIBE
WERE ALLOTTED LAND PURSUANT TO THE AGREEMENT OF MARCH 3, 1891, 26 STAT.
1016.  ALLOTMENTS WERE MADE TO THE OTOE AND MISSOURIA INDIANS UNDER THE
GENERAL ALLOTMENT ACT WITHOUT SPECIAL AGREEMENT.  MILLS, OKLAHOMA
INDIAN LAND LAWS SEC. 438(1924). 

THE NATURE OF THE INDIANS' INTEREST HAS BEEN DESCRIBED AS FOLLOWS:  "
...  THE UNITED STATES RETAINED THE LEGAL TITLE, GIVING THE INDIAN
ALLOTTEE A PAPER OR WRITING, IMPROPERLY CALLED A PATENT, SHOWING THAT
AT A PARTICULAR TIME IN THE FUTURE, UNLESS IT WAS EXTENDED BY THE
PRESIDENT, HE WOULD BE ENTITLED TO A REGULAR PATENT CONVEYING THE
FEE."  UNITED STATES V. RICKERT, 188 U.S. 432, 436. 

FN4  WITH THESE EXCEPTIONS:  (1) IN A SINGLE IMMATERIAL INSTANCE IN
NO. 40, AN UNDIVIDED 7/16TH INTEREST IN ONE OF THE LEASES WAS ALIENABLE
AND WAS OWNED BY NON-INDIANS.  THE TEXAS COMPANY PAID WITHOUT PROTEST
THE TAXES LEVIED AGAINST IT WHICH WERE ATTRIBUTABLE TO THIS 7/16TH
INTEREST.  (2) IN NO. 41, AN UNDIVIDED 1/4TH INTEREST IN THE LANDS
SUBJECT TO ONE OF THE LEASES AND AN UNDIVIDED 1/3D INTEREST IN THE LAND
SUBJECT TO ANOTHER LEASE WERE OWNED BY NON-INDIANS.  THE EFFECT OF THE
DECISION OF THE OKLAHOMA SUPREME COURT WAS TO DENY THE PORTION OF THE
ASSESSMENTS APPLICABLE TO THESE INTERESTS.  HOWEVER, IT WAS CONCEDED AT
THE ARGUMENT HERE THAT THE ASSESSMENTS WERE VALID INSOFAR AS THEY
APPLIED TO INTERESTS IN LANDS OWNED, WHEN THE ASSESSMENTS WERE MADE, BY
NON-INDIAN OWNERS OR BY INDIAN OWNERS NOT UNDER RESTRICTION. 

FN5  24 STAT. 389, 390, AS AMENDED, 25 U.S.C. SECS. 348, 349.  SEE
COHEN, HANDBOOK OF FEDERAL INDIAN LAW 108-109(1942).  LEASES OF
ALLOTTED LAND FOR MINING PURPOSES MAY BE MADE WITH THE APPROVAL OF THE
SECRETARY OF THE INTERIOR UNDER 35 STAT. 783, 25 U.S.C. SEC. 396. 

FN6  52 STAT. 348, 25 U.S.C. SEC. 396D; 30 C.F.R. CUM. SUPP. SECS.
221.1-221.67. 

FN7  52 OKLA. STAT. SECS. 81-286.17(CONSERVATION OF OIL AND GAS),
SECS. 291-303(REGULATION AND INSPECTION OF WELLS)(CUM.  SUPP.  1947);
ORDER NO. 1299 - CAUSE NO. 2935, THIRTY-SEVENTH ANNUAL REPORT OF
CORPORATION COMM'N OF OKLA., 1944, P. 84. 

THE ASSUMPTION STATED IN THE TEXT IS MADE, ALTHOUGH IN NO. 41 THE
COMMISSION EXCLUDED, AS IRRELEVANT, EVIDENCE TENDERED TO SHOW
COMPLIANCE WITH THE FEDERAL AND STATE REGULATIONS, AND IN NO. 40 NO
EVIDENCE OF COMPLIANCE WAS INTRODUCED. 

FN8  THE THREE OIL AND GAS LEASES INVOLVED IN NO. 40 WERE MADE BY
MEMBERS OF THE APACHE TRIBE TO NON-INDIAN LESSEES WHO ASSIGNED THEIR
INTERESTS TO THE TEXAS COMPANY.  IN NO. 41, IN WHICH EIGHT LEASES ARE
INVOLVED, THE INDIAN LESSORS ARE MEMBERS OF THE APACHE, COMANCHE,
CITIZEN POTTAWATOMIE, AND OTOE AND MISSOURIA TRIBES. 

UNDIVIDED INTERESTS IN THE LANDS SUBJECT TO CERTAIN LEASES WERE HELD
BY NON-INDIANS AT THE TIME OF ASSESSMENT.  SEE NOTES 1 AND 4. 

FN9  68 OKLA. STAT. SEC. 821(1941).  THE (GENERAL) SCHEME OF THE TAX
IS AS FOLLOWS:  THE TAX FALLS DUE ON THE FIRST DAY OF EACH CALENDAR
MONTH AS TO PRODUCTION DURING THE PRECEDING MONTH.  THE PURCHASER PAYS
THE TAX ON OIL OR GAS SOLD AT THE TIME OF PRODUCTION AND IS AUTHORIZED
TO DEDUCT THE AMOUNT OF TAX PAID WHEN SETTLING WITH THE PRODUCER (AND
WITH THE ROYALTY OWNER IN CASES IN WHICH THE TAX APPLIES TO HIM, SEE
NOTE 14).  IF THE TAX BECOMES DUE BEFORE THE OIL IS SOLD, THE PRODUCER
IS REQUIRED TO PAY THE TAX FOR HIMSELF (AND, IN CASES WHERE THE TAX
APPLIES TO ROYALTIES, SEE NOTE 14, FOR THE ROYALTY OWNER, AND IS
PERMITTED TO DEDUCT THE AMOUNT OF TAX PAID ON ROYALTY OIL WHEN SETTLING
WITH THE ROYALTY OWNER).  68 ID. SEC. 833.  THE TAX IS A FIRST AND
PARAMOUNT LIEN AGAINST THE PROPERTY OF THE PERSON LIABLE FOR THE TAX. 
68 ID. SEC. 836. 

OF THE PROCEEDS RECEIVED FROM THE TAX, 78 PER CENT IS PA&D INTO THE
STATE TREASURY TO BE USED FOR THE GENERAL EXPENSES OF STATE
GOVERNMENT.  TEN PER CENT IS PAID TO THE COUNTY TREASURER OF THE COUNTY
IN WHICH THE OIL OR GAS WAS PRODUCED, AND IS USED FOR THE CONSTRUCTION
AND MAINTENANCE OF COUNTY HIGHWAYS.  TEN PER CENT IS PAID TO THE COUNTY
TREASURER FOR DISTRIBUTION AMONG THE COUNTY'S SCHOOL DISTRICTS.  THE
REMAINING TWO PER CENT IS PLACED TO THE CREDIT OF THE OKLAHOMA TAX
COMMISSION AND IS USED FOR COLLECTION AND ENFORCEMENT ACTIVITIES.  68
ID. SEC. 827(CUM.  SUPP.  1947). 

FN10  BUT SEE NOTE 27 AND TEXT INFRA. 

FN11  THE AMOUNT OF THE TAX WAS ONE-EIGHTH OF ONE CENT PER BARREL FOR
THE PERIOD PRIOR TO JULY 1, 1943, OKLA. LAWS, 1941, TIT. 68, C. 26, AND
ONE MILL PER BARREL AFTER THAT DATE, OKLA. LAWS, 1943, TIT. 68, C. 26. 
THE TEXAS COMPANY WAS ASSESSED UNDER THE FORMER ACT.  MAGNOLIA WAS
ASSESSED UNDER BOTH ACTS. 

FN12  OKLA. LAWS, 1933, C. 131, AS AMENDED, 52 OKLA. STAT. 81 ET SEQ.
(CUM. SUPP. 1947). 

FN13  OKLA. LAWS, 1933, C. 132; OKLA. LAWS, 1935, C. 59, ART. 2;
OKLA. LAWS, 1937, C. 59, ART. 2; OKLA. LAWS, 1939, C. 66, ART. 7; OKLA.
LAWS, 1941, TIT. 68, C. 26; OKLA. LAWS, 1943, TIT. 68, C. 26; OKLA.
LAWS, 1945, TIT. 68, C. 26; OKLA. LAWS, 1947, TIT. 68, C. 26.  THE
PRESENT STATUTE APPEARS AT 68 OKLA. STAT. SEC. 1220.1 ET SEQ. (CUM.
SUPP. 1947). 

THE TAX RECEIPTS, COLLECTED IN THE SAME MANNER AS IN THE CASE OF THE
GROSS PRODUCTION TAX, PRESENT 68 OKLA. STAT. SEC. 1220.1(CUM.  SUPP. 
1947), ARE DEPOSITED TO THE CREDIT OF THE "CONSERVATION FUND" AND THE
"INTERSTATE OIL COMPACT FUND OF OKLAHOMA."  68 ID. 1220.3. 

FN14  ALTHOUGH THE OKLAHOMA STATUTES IN THEIR GENERAL APPLICATION LAY
THE TAXES ON GROSS PRODUCTION, INCLUDING ROYALTIES, CF. NOTES 9 AND 13,
THEY PROVIDE, WITH RESPECT TO THE GROSS PRODUCTION TAX, THAT THE
PRODUCER, IN HIS REQUIRED MONTHLY STATEMENT TO THE OKLAHOMA TAX
COMMISSION, STATE "WHERE SUCH ROYALTY IS CLAIMED TO BE EXEMPT FROM
TAXATION BY LAW, THE FACTS ON WHICH SUCH CLAIM OF EXEMPTION IS BASED." 
68 OKLA. STAT. SEC. 821(1941).  THIS PROVISION IS MADE APPLICABLE TO
THE PETROLEUM EXCISE TAX BY THE FIRST SECTION OF EACH OF THE SEVERAL
ENACTMENTS ESTABLISHING AND CONTINUING THAT EXACTION.  SEE NOTE 13
SUPRA.  ONLY THE INTERESTS OF THE LESSEES WERE ASSESSED IN THESE
CASES. 

FN15  THE OKLAHOMA SUPREME COURT RENDERED SEPARATE, UNREPORTED
OPINIONS.  THE PRINCIPAL OPINION, FILED IN THE TEXAS COMPANY CASE, WAS
FOLLOWED IN THE LATER ONE FILED IN THE MAGNOLIA PETROLEUM CASE. 
REHEARING WAS DENIED IN BOTH CASES. 

THE ORIGINAL JUDGMENT IN THE TEXAS COMPANY CASE PROVIDED FOR REVERSAL
OF THE TRIAL COURT'S JUDGMENT, WITH DIRECTIONS TO OVERRULE THE
COMMISSION'S DEMURRER "AND PROCEED CONSISTENT WITH THE VIEWS HERE
EXPRESSED."  ON MOTION OF COUNSEL FOR THE COMMISSION THIS WAS MODIFIED
TO PROVIDE THAT "THE TRIAL COURT JUDGMENT  ...  IS REVERSED" AND THAT
"FINAL JUDGMENT IS HEREBY RENDERED FOR PLAINTIFF AND AGAINST THE
DEFENDANT FOR THE SUM SUED FOR," THUS ELIMINATING ALL QUESTION
CONCERNING THE FINALITY OF THE JUDGMENT. 

FN16  SEE NOTE 15 SUPRA. 

FN17  PURSUANT TO FORMER SEC. 237(C) OF THE JUDICIAL CODE, AS
AMENDED, 28 U.S.C. SEC. 344(C), PRESENT 28 U.S.C. SEC. 2103. 

FN18  THOMSON V. PACIFIC R. CO., 9 WALL.  579; RAILROAD CO. V.
PENISTON, 18 WALL.  5; CENTRAL PACIFIC R. CO. V. CALIFORNIA, 162 U.S.
91; GROMER V. STANDARD DREDGING CO., 224 U.S. 362, 371; CHOCTAW, O. &
G. R. CO. V. MACKEY, 256 U.S. 531, 535-537.    FN19  SEE NOTE 27 AND
TEXT. 

FN20  BUT SEE TEXT INFRA, PART III.  UNLESS THE MEASURE OF A TAX IS
FAIRLY TO BE CONSIDERED AS DESIGNED TO CONCEAL OR DISTORT UNDULY ITS
TRUE NATURE, THE TAX IS NOT TO BE INVALIDATED BECAUSE THE MEASURE IS
NOT ONE CUSTOMARILY EMPLOYED IF AS APPLIED IT ACHIEVES FAIRLY THE
PURPOSE FOR WHICH IT IS AVOWEDLY LAID, THAT PURPOSE OF COURSE BEING ONE
WITHIN THE LEGISLATIVE POWER TO ACCOMPLISH.  AMERICAN MFG. CO. V. ST.
LOUIS, 250 U.S. 459; HOPE GAS CO. V. HALL, 274 U.S. 284; UTAH POWER &
LIGHT CO. V. PFOST, 286 U.S. 165.  MOREOVER, ORDINARILY THE
CONSTRUCTION GIVEN TO A STATE STATUTE BY THE STATE'S HIGHEST COURT
CAPABLE OF DECIDING THE QUESTION IS TAKEN AS BINDING ON THIS COURT. 
SEE E.G., KNIGHTS OF PYTHIAS V. MEYER, 265 U.S. 30, 32-33; GUARANTY
TRUST CO. V. BLODGETT, 287 U.S. 509, 513; HARTFORD ACCIDENT CO. V.
NELSON CO., 291 U.S. 352, 358.  CF. GALVESTON, H. & S.A.R. CO. V.
TEXAS, 210 U.S. 217, 227; HANOVER INSURANCE CO. V. HARDING, 272 U.S.
494, 509-510; CARPENTER V. SHAW, 280 U.S. 363, 367-368. 

FN21  SEE NOTE 14 SUPRA.  CF. CARPENTER V. SHAW, 280 U.S. 363,
HOLDING THAT OIL ROYALTIES RECEIVED BY INDIAN LESSORS FROM NONTAXABLE
ALLOTTED LANDS WERE NOT SUBJECT TO A STATE GROSS PRODUCTION TAX, THE
TAX BEING REGARDED AS ON THE LESSOR'S INTEREST RATHER THAN ON THE
SEVERED OIL.  BUT ROYALTY INCOME IS SUBJECT TO STATE AND FEDERAL NET
INCOME TAXES.  CHOTEAU V. BURNET, 283 U.S. 691; SUPERINTENDENT OF FIVE
CIVILIZED TRIBES V. COMMISSIONER, 295 U.S. 418; LEAHY V. STATE
TREASURER, 297 U.S. 420. 

FN22  AT NOTE 18. 

FN23  DISTINGUISHING JAYBIRD MINING CO. V. WEIR, 271 U.S. 609, ON THE
GROUND THAT THERE THE INTEREST OF THE INDIAN LESSOR HAD NOT BEEN
PREPAID OR SEGREGATED. 

FN24  SEE THE KANSAS INDIANS, 5 WALL.  737; THE NEW YORK INDIANS, 5
WALL.  761.  THOSE EARLY DECISIONS SEEM TO REST ON THE BASIS THAT THE
INDIAN TRIBES POSSESSED MANY ATTRIBUTES OF SOVEREIGNTY. 

AS TO THE IMMUNITY FROM STATE TAXATION OF LANDS ACQUIRED BY
INDIVIDUAL INDIANS BY TREATY OR UNDER THE GENERAL HOMESTEAD LAWS RATHER
THAN UNDER THE GENERAL ALLOTMENT ACT, SEE COHEN, OP. CIT. SUPRA NOTE 5,
AT 257-258, 259-260. 

LANDS OUTSIDE A RESERVATION PURCHASED WITH RESTRICTED INDIAN FUNDS
FROM A PERSON WHO DID NOT HOLD THE LAND TAX EXEMPT WERE HELD SUBJECT TO
STATE TAXES IN SHAW V. GIBSON-ZAHNISER OIL CORP., 276 U.S. 575.  BUT
CONGRESS SPECIFICALLY EXEMPTED SUCH LANDS FROM TAXATION.  ACT OF JUNE
20, 1936, 49 STAT. 1542, AS AMENDED, 50 STAT. 188(TO LIMIT THE
EXEMPTION TO HOMESTEADS), 25 U.S.C. SEC. 412A.  SEE COHEN, OP. CIT.
SUPRA, AT 260-261.  THIS LEGISLATION WAS SUSTAINED AND APPLIED IN BOARD
OF COMMISSIONERS V. SEBER, 318 U.S. 705. 

FN25  OKLA. LAWS, 1910, C. 44, SEC. 6, ADDING A PROVISION PERMITTING
THE PRODUCER TO DEDUCT THE AMOUNT OF ROYALTIES PAID FOR THE BENEFIT OF
AN INDIAN TRIBE. 

FN26  OKLA. LAWS, 1915, C. 107, ART. 2, SUBD. A; OKLA. LAWS, 1916, C.
39.  FURTHER AMENDMENTS WERE MADE BY OKLA. LAWS, 1933, C. 103, AND BY
OKLA. LAWS, 1935, C. 66, ART. 4.  SEE NOTE 9 AND TEXT SUPRA. 

FN27  LARGE OIL CO. V. HOWARD, 63 OKLA. 143, REVERSED PER CURIAM, 248
U.S. 549.  IN RE GROSS PRODUCTION TAX OF WOLVERINE OIL CO., 53 OKLA.
24, WHICH HAD HELD THAT THE 1915 ACT WAS AN OCCUPATIONAL RATHER THAN A
PROPERTY TAX, WAS DISTINGUISHED BECAUSE OF CHANGES MADE BY THE 1916
ACT.  THE WOLVERINE CASE WAS SPECIFICALLY OVERRULED IN IN RE SKELTON
LEAD & ZINC CO.'S GROSS PRODUCTION TAX, 1919, 81 OKLA. 134; ACCORD,
BERGIN OIL & GAS CO. V. HOWARD, 82 OKLA. 176.  THE OKLAHOMA SUPREME
COURT HAS SINCE CONSISTENTLY HELD THAT THE TAX IS A PROPERTY TAX IN
LIEU OF ALL OTHER AD VALOREM TAXES.  E.G., IN RE PROTEST OF BENDELARI,
AGENT, 82 OKLA. 97.  AND SEE MERIWETHER V. LOVETT, 166 OKLA. 73; STATE
V. INDIAN ROYALTY CO.(, 177 OKLA. 238; PETEET V. CARMICHAEL, 191 OKLA.
593. 

FN28  THE OKLAHOMA SUPREME COURT ASSUMED FOR A TIME THAT THE
STATUTORY DIFFERENCE WAS OVERLOOKED BY THIS COURT AND THAT AN OPPOSITE
RESULT WOULD HAVE BEEN REACHED HAD THE DIFFERENCE BEEN NOTICED.  IN RE
SKELTON LEAD & ZINC CO.'S GROSS PRODUCTION TAX, 1919, 81 OKLA. 134; IN
RE PROTEST OF BENDELARI, AGENT, 82 OKLA. 97. 

FN29  THE OKLAHOMA SUPREME COURT CAPITULATED IN ATCHISON, T. & S.F.R.
R. CO. V. MCCURDY, 86 OKLA. 148. 

FN30  SEE NOTE 39 INFRA. 

FN31  CF. THE CONTEMPORARY CASE OF WILLCUTS V. BUNN, 282 U.S. 216,
HOLDING CAPITAL GAIN RESULTING FROM RESALE OF MUNICIPAL BONDS TAXABLE
UNDER THE FEDERAL INCOME TAX LAW. 

FN32  CF. BURNET V. A.T. JERGINS TRUST, 288 U.S. 508, 516, IN WHICH A
CITY LEASED OIL AND GAS LAND TO A PRIVATE TRUST, WHICH WAS HELD LIABLE
FOR A FEDERAL INCOME TAX ON ITS SHARE OF THE RECEIPTS, THE COURT
STATING THAT "THE DOCTRINE OF GILLESPIE V. OKLAHOMA IS TO BE APPLIED
STRICTLY AND ONLY IN CIRCUMSTANCES CLOSELY ANALOGOUS TO THOSE WHICH IT
DISCLOSED." 

FN33  CITING BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393, WHICH
THE OPINION CHARACTERIZED AS "A COROLLARY" TO THE GILLESPIE CASE.  303
U.S. AT 383.  THE FEDERAL INCOME TAX IN THE CORONADO CASE WAS LEVIED
UPON THE LESSEE OF STATE SCHOOL LANDS.  CF. NOTE 32 SUPRA. 

FN34  AMONG THE CASES WHICH ONE OR THE OTHER OF RESPONDENTS ATTEMPTS
TO DISTINGUISH ON THE GROUND THAT THE TAX WAS IMPOSED ON AN INDEPENDENT
CONTRACTOR RATHER THAN A "TRUE FEDERAL INSTRUMENTALITY" ARE:  JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 134; BUCKSTAFF CO. V. MCKINLEY, 308
U.S. 358; ALABAMA V. KING & BOOZER, 314 U.S. 1; AND WILSON V. COOK, 327
U.S. 474. 

IT IS ALSO CONTENDED THAT CASES SUSTAINING TAXES ON THE PROPERTY OF A
FEDERAL INSTRUMENTALITY, E.G., RAILROAD CO. V. PENISTON, 18 WALL.  5;
ALWARD V. JOHNSON, 282 U.S. 509; INDIAN TERRITORY ILLUMINATING OIL CO.
V. BOARD OF EQUALIZATION, 288 U.S. 325, ARE NOT INCONSISTENT WITH THE
VIEW THEY ASK US TO TAKE.  CF. PART I SUPRA. 

FN35  THE INCONGRUITY OF THE DOCTRINE RESPONDENTS ASK US TO
PERPETUATE IS UNDERSCORED BY DECISIONS SUBSEQUENT TO THE MOUNTAIN
PRODUCERS CASE WITHDRAWING INCOME TAX IMMUNITY FOR STATE AND FEDERAL
OFFICIAL SALARIES.  HELVERING V. GERHARDT, 304 U.S. 405; GRAVES V. NEW
YORK EX REL. O'KEEFE, 306 U.S. 466. 

SEE GENERALLY, POWELL, THE WANING OF INTERGOVERNMENTAL TAX
IMMUNITIES, 58 HARV. L. REV. 633; POWELL, THE REMNANT OF
INTERGOVERNMENTAL TAX IMMUNITIES, 58 HARV. L. REV. 757. 

FN36  RESPONDENTS MERELY ASSERT HYPOTHETICALLY THAT IMPOSITION OF THE
TAXES MIGHT IN SOME INSTANCES MAKE THE MARGIN BETWEEN SUCCESSFUL AND
UNSUCCESSFUL OPERATION.  LEASES APPROVED BY THE SECRETARY OF THE
INTERIOR PROVIDED FOR THE SAME RENTAL AND ROYALTY PAYMENTS BOTH BEFORE
AND AFTER THE MOUNTAIN PRODUCERS DECISION.  25 C.F.R. SEC. 189.16.  AND
RENTAL AND ROYALTY PAYMENTS PROVIDED FOR BY THE DEPARTMENT OF THE
INTERIOR ARE THE SAME FOR LANDS ALLOTTED UNDER THE GENERAL ALLOTMENT
ACT AS THEY ARE FOR LANDS OF MEMBERS OF THE FIVE CIVILIZED TRIBES, 25
C.F.R. SECS. 183.24, 189.16.  PRODUCTION FROM THE LATTER LANDS HAS BEEN
SUBJECT TO OKLAHOMA'S GROSS PRODUCTION TAX SINCE 1928.  SEE NOTE 42
INFRA.  THE GOVERNMENT, IN ITS BRIEF AMICUS CURIAE, STATES THAT,
BECAUSE DIFFERENCES IN THE VALUE OF DIFFERENT TRACTS OF LAND WOULD BE
REFLECTED IN THE BONUSES WHICH LESSEES ARE WILLING TO PAY, AN EXACT
COMPARISON OF BONUSES IS IMPOSSIBLE. 

FN37  SEE JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 160-161;
PITTMAN V. HOME OWNERS CORP., 308 U.S. 21, 32-33; MARICOPA COUNTY V.
VALLEY BANK, 318 U.S. 357, 361; BOARD OF COMMISSIONERS V. SEBER, 318
U.S. 705, 715-719; OKLAHOMA TAC COMMISSION V. UNITED STATES, 319 U.S.
598, 606-607; MAYO V. UNITED STATES, 319 U.S. 441, 446; SMITH V. DAVIS,
323 U.S. 111, 116-119. 

FN38  SEE COHEN, OP. CIT. SUPRA NOTE 5, AT 255-256. 

FN39  41 STAT. 1250.  AS HAS BEEN STATED, OKLAHOMA V. BARNSDALL
REFINERIES, 296 U.S. 521, HELD THAT THIS STATUTE DID NOT AUTHORIZE THE
IMPOSITION OF THE STATE'S PETROLEUM EXCISE TAX.  SEE TEXT AT NOTE 30
SUPRA. 

FN40  43 STAT. 176. 

FN41  41 STAT. 1248, AS AMENDED, 50 STAT. 68. 

FN42  45 STAT. 496. 

FN43  H.R. REP. NO. 1377, 66TH CONG., 3D SESS. 4; H.R. REP. NO. 1278,
66TH CONG., 3D SESS. 2-3; S. REP. NO. 704, 66TH CONG., 3D SESS. 3(ALL
RELATING TO THE OSAGE ACT, NOTE 39 SUPRA); H.R. REP. NO. 269, 68TH
CONG., 1ST SESS. 3; S. REP. NO. 433, 68TH CONG., 1ST SESS. 3(BOTH
RELATING TO THE KAW ACT, NOTE 40 SUPRA); H.R. REP. NO. 431, 75TH CONG.,
1ST SESS.; S. REP. NO. 234, 75TH CONG., 1ST SESS. 2(BOTH RELATING TO
THE QUAPAW ACT, NOTE 41 SUPRA); H.R. REP. NO. 1193, 70TH CONG., 1ST
SESS. 5; S. REP. NO. 982, 70TH CONG., 1ST SESS. 4-5(BOTH RELATING TO
THE FIVE CIVILIZED TRIBES ACT, NOTE 42 SUPRA). 

FN44  RESPONDENTS ALSO URGE THAT THE OKLAHOMA LEGISLATURE HAS
RECOGNIZED THE IMMUNITY THEY ASSERT HERE BY AUTHORIZING THE REFUND OF
"PAYMENT MADE IN ERROR ON ACCOUNT OF THE PRODUCTION BEING DERIVED FROM
RESTRICTED INDIAN LANDS AND THEREFORE EXEMPT FROM TAXATION."  68 OKLA.
STAT. SEC. 832(1941).  ALTHOUGH RESPONDENTS TELL US THAT THIS ARGUMENT
WAS URGED UPON THE OKLAHOMA SUPREME COURT, THAT COURT DID NOT MENTION
THIS POSSIBLE STATE GROUND BUT RESTED ITS DECISION EXCLUSIVELY ON THE
FEDERAL GROUND.  WE DO NOT PURPORT TO DECIDE WHETHER OKLAHOMA LAW
AFFORDS THE EXEMPTION WHICH FEDERAL LAW DENIES. 

SEE NOTE 4 AS TO THE ASSESSMENTS ATTRIBUTABLE TO THE UNDIVIDED
INTERESTS IN LANDS HELD BY NON-INDIANS IN NO. 41. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 
..END :














HIRSHBERG V. COOKE, 336 U.S. 210 


NO. 231.  ARGUED JANUARY 13, 1949.  - DECIDED FEBRUARY 28, 1949.  - 168
F.2D 503, REVERSED. 


1.  A NAVY COURT-MARTIAL HAS NO JURISDICTION TO TRY AN ENLISTED MAN
FOR A VIOLATION OF ART. 8 OF THE ARTICLES FOR THE GOVERNMENT OF THE
NAVY, 34 U.S.C. SEC. 1200, ART. 8, COMMITTED DURING A PRIOR ENLISTMENT
TERMINATED BY AN HONORABLE DISCHARGE, EVEN THOUGH HE REENLISTED ON THE
DAY FOLLOWING HIS DISCHARGE.  PP. 211-219. 

2.  THIS CONCLUSION IS SUPPORTED BY THE LANGUAGE AND LEGISLATIVE
HISTORY OF 34 U.S.C. SEC. 1200, ART. 14(ELEVENTH), SPECIFICALLY
AUTHORIZING TRIAL AFTER DISCHARGE OF OFFENDERS AGAINST ART. 14.  PP.
214-216. 

3.  IT IS ALSO SUPPORTED BY LONG-STANDING ADMINISTRATIVE
INTERPRETATION, INCLUDING 31 OP. ATTY. GEN. 521.  PP. 216-217. 

4.  34 U.S.C. SEC. 591, AUTHORIZING THE SECRETARY OF THE NAVY, WITH
THE APPROVAL OF THE PRESIDENT, TO ADOPT AND ALTER REGULATIONS AND
ORDERS FOR THE CONTROL OF THE NAVY, DOES NOT AUTHORIZE THE NAVY TO
EXTEND ITS COURT-MARTIAL JURISDICTION BEYOND THE LIMITS CONGRESS HAD
FIXED.  PP. 217-218. 

5.  NOR CAN A NAVY REGULATION CLAIMED TO GRANT JURISDICTION IN CASES
SUCH AS THIS BE SUSTAINED AS A REVISION OF THE LONG-STANDING
ADMINISTRATIVE INTERPRETATION OF ART. 8.  PP. 218-219. 

UNITED STATES EX REL. HIRSHBERG V. COOKE, COMMANDING OFFICER. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PETITIONER WAS CONVICTED BY A NAVAL COURT-MARTIAL FOR AN OFFENSE
COMMITTED DURING A PRIOR ENLISTMENT.  IN A HABEAS CORPUS PROCEEDING, A
FEDERAL DISTRICT COURT HELD THE JUDGMENT VOID AND ORDERED HIS RELEASE
FROM CUSTODY.  73 F.SUPP.  990.  THE COURT OF APPEALS REVERSED.  168
F.2D 503.  THIS COURT GRANTED CERTIORARI.  335 U.S. 842.  COOKE WAS
SUBSTITUTED AS THE PARTY RESPONDENT.  335 U.S. 882.  REVERSED, P. 219. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES IMPORTANT QUESTIONS CONCERNING THE STATUTORY
JURISDICTION OF GENERAL COURTS-MARTIAL OF THE NAVY. 

IN 1942 THE PETITIONER WAS SERVING A SECOND ENLISTMENT IN THE NAVY. 
UPON THE SURRENDER OF THE UNITED STATES FORCES ON CORREGIDOR PETITIONER
BECAME A WAR PRISONER OF JAPAN.  AFTER LIBERATION IN SEPTEMBER, 1945,
PETITIONER WAS BROUGHT BACK TO THE UNITED STATES AND HOSPITALIZED.  HE
WAS RESTORED TO DUTY IN JANUARY, 1946.  MARCH 26, 1946, HE WAS GRANTED
AN HONORABLE DISCHARGE BECAUSE OF EXPIRATION OF HIS PRIOR ENLISTMENT. 
THE NEXT DAY HE RE-ENLISTED, OBLIGATING HIMSELF TO SERVE FOUR YEARS
"SUBJECT TO SUCH LAWS, REGULATIONS, AND ARTICLES FOR THE GOVERNMENT OF
THE NAVY AS ARE OR SHALL BE ESTABLISHED BY THE CONGRESS  ...  OR OTHER
COMPETENT AUTHORITY  ...  " 

ABOUT A YEAR LATER, PETITIONER WAS SERVED WITH CHARGES DIRECTING HIS
TRIAL BY A GENERAL COURT-MARTIAL OF THE NAVY.  THE SPECIFICATIONS
INCLUDED CHARGES THAT DURING HIS PRIOR ENLISTMENT THE PETITIONER HAD
MALTREATED TWO OTHER NAVAL ENLISTED MEN WHO WERE ALSO JAPANESE
PRISONERS OF WAR AND WHO WERE MEMBERS OF GROUPS OF PRISONERS WORKING
UNDER PETITIONER'S CHARGE.  PETITIONER FILED A PLEA IN BAR OF THE
TRIAL, ONE GROUND BEING THAT THE COURT-MARTIAL WAS WITHOUT JURISDICTION
TO TRY HIM FOR ALLEGED OFFENSES COMMITTED DURING A PRIOR ENLISTMENT AT
THE END OF WHICH HE HAD RECEIVED AN HONORABLE DISCHARGE.  HIS PLEA WAS
OVERRULED.  HE WAS ACQUITTED ON SOME SPECIFICATIONS BUT WAS CONVICTED
ON OTHERS THAT CHARGED MALTREATMENT.  HIS SENTENCE WAS TEN MONTHS
CONFINEMENT, REDUCTION FROM CHIEF SIGNALMAN TO APPRENTICE SEAMAN, AND
DISHONORABLE DISCHARGE FROM THE NAVY. 

PETITIONER THEN BROUGHT THIS HABEAS CORPUS PROCEEDING IN A FEDERAL
DISTRICT COURT CHARGING THAT THE COURT-MARTIAL JUDGMENT WAS VOID
BECAUSE OF WANT OF STATUTORY POWER TO CONVICT HIM FOR AN OFFENSE
COMMITTED IF AT ALL DURING HIS PRIOR ENLISTMENT.  FN1  THAT COURT
SUSTAINED PETITIONER'S CONTENTION AND ORDERED HIS RELEASE FROM
CUSTODY.  73 F.SUPP.  990.  THE COURT OF APPEALS REVERSED, ONE JUDGE
DISSENTING.  168 F.2D 503.  THE IMPORTANCE OF THE STATUTORY
CONSTRUCTION, WHICH APPEARED TO AFFECT THE COURTMARTIAL POWERS OF THE
ARMY AS WELL AS THE NAVY, CAUSED US TO GRANT CERTIORARI.  335 U.S.
842. 

ASIDE FROM NAVAL REGULATIONS TO WHICH REFERENCE WILL LATER BE MADE,
COURT-MARTIAL AUTHORITY TO TRY AND TO PUNISH PETITIONER FOR HIS PRIOR
ENLISTMENT CONDUCT PRIMARILY DEPENDS ON THE LANGUAGE IN ARTICLE
8(SECOND) OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY (34 U.S.C.
SEC. 1200, ART. 8), WHICH PARTICULARLY PROVIDES THAT "SUCH PUNISHMENT
AS A COURT-MARTIAL MAY ADJUDGE MAY BE INFLICTED ON ANY PERSON IN THE
NAVY  ...  GUILTY OF  ...  MALTREATMENT OF, ANY PERSON SUBJECT TO HIS
ORDERS ...  "  THE GOVERNMENT CONTENDS THAT THIS LANGUAGE GIVEN ITS
LITERAL MEANING AUTHORIZED THE COURT-MARTIAL TO TRY AND TO PUNISH
PETITIONER FOR CONDUCT DURING A PRIOR ENLISTMENT.  IT IS POINTED OUT
THAT PETITIONER WAS "IN THE NAVY" WHEN THE OFFENSE WAS COMMITTED AND
WHEN HE WAS TRIED; THIS LANGUAGE IT IS ARGUED BRINGS HIS CASE UNDER THE
ARTICLE.  IN AID OF THIS INTERPRETATION THE GOVERNMENT EMPHASIZES THAT
DURING THE WHOLE PERIOD OF TIME INVOLVED, PETITIONER WAS CONTINUOUSLY
"IN THE NAVY" EXCEPT FOR AN INTERVAL OF A FEW HOURS BETWEEN HIS
HONORABLE DISCHARGE AND HIS RE-ENLISTMENT.  THIS LATTER CIRCUMSTANCE WE
THINK CANNOT JUSTIFY THE STATUTORY INTERPRETATION URGED.  FOR IF THAT
INTERPRETATION IS CORRECT, COURT-MARTIAL JURISDICTION WOULD BE
SATISFIED IF A SAILOR WAS MERELY "IN THE NAVY" WHEN THE OFFENSE WAS
COMMITTED AND WHEN BROUGHT BEFORE THE COURT-MARTIAL, REGARDLESS OF THE
DURATION OF ANY INTERIM PERIOD OUT OF THE NAVAL SERVICE, PROVIDED THE
PROSECUTION WAS NOT BARRED BY THE TWO-YEAR LIMITATION PERIOD PROVIDED
BY 34 U.S.C. SEC. 1200, ART. 61. 

THE CONCESSIONS MADE BY THE GOVERNMENT IN URGING SUCH A LITERAL
CONSTRUCTION OF THIS ARTICLE EXPOSE THE WHIMSICAL AND UNCERTAIN NATURE
OF THE DISTINCTIONS THAT WOULD MARK THE BOUNDARIES OF COURT-MARTIAL
POWERS.  IT IS CONCEDED THAT HAD PETITIONER NOT RE-ENLISTED IN THE NAVY
AFTER HIS 1946 DISCHARGE, NO NAVY COURT-MARTIAL COULD HAVE TRIED HIM
FOR OFFENSES COMMITTED DURING HIS PRIOR NAVAL SERVICE.  THUS, UNDER THE
CONSTRUCTION HERE URGED, NAVAL COURT-MARTIAL JURISDICTION FOR A PRIOR
ENLISTMENT OFFENSE IS MADE WHOLLY TO DEPEND ON WHETHER THE NAVAL
OFFENDER EITHER VOLUNTARILY RE-ENTERS THE NAVY OR IS DRAFTED INTO ITS
SERVICE.  AND PUNISHMENT OF THE GRAVEST NATURE MIGHT BE IMPOSED ON A
NAVAL VOLUNTEER OR DRAFTEE WHICH NO COURT-MARTIAL COULD HAVE IMPOSED
BUT FOR SUCH A VOLUNTARY OR FORCED ENTRY INTO THE NAVY.  FOR UNDER THIS
INTERPRETATION HAD THE SAME NAVAL OFFENDER RE-ENTERED HIS COUNTRY'S
SERVICE BY WAY OF THE ARMY RATHER THAN THE NAVY, EITHER BY CHOICE OR BY
ACCIDENT OF DRAFT ASSIGNMENT, NO COURT-MARTIAL, EITHER NAVY OR ARMY,
COULD HAVE PUNISHED HIM.  JURISDICTION TO PUNISH RARELY, IF EVER, RESTS
UPON SUCH ILLOGICAL AND FORTUITOUS CONTINGENCIES.  WE THEREFORE MUST
LOOK BEYOND THE LITERAL LANGUAGE OF THE ARTICLE, AMBIGUOUS AT BEST, IN
ORDER TO DETERMINE WHETHER THIS COURT-MARTIAL ACTED WITHIN ITS POWER. 
SEE RUNKLE V. UNITED STATES, 122 U.S. 543, 555, 556; EX PARTE REED, 100
U.S. 13, 23. 

WHILE NOT ITSELF DETERMINATIVE OF THE QUESTION HERE, 34 U.S.C. SEC.
1200, ART. 14(ELEVENTH), HAS GREATLY INFLUENCED THE ARMY AND NAVY IN
DETERMINING THEIR COURT-MARTIAL JURISDICTION TO TRY SERVICE PERSONNEL
FOR OFFENSES COMMITTED IN PRIOR ENLISTMENTS.  THAT ARTICLE PROVIDES
THAT WHERE ANY PERSON PREVIOUSLY DISCHARGED OR DISMISSED FROM THE NAVY
HAS "WHILE IN THE NAVAL SERVICE" BEEN GUILTY OF CERTAIN TYPES OF FRAUD
AGAINST THE GOVERNMENT, SUCH PERSON "SHALL CONTINUE TO BE LIABLE TO BE
ARRESTED AND HELD FOR TRIAL AND SENTENCE BY A COURT MARTIAL, IN THE
SAME MANNER AND TO THE SAME EXTENT AS IF HE HAD NOT RECEIVED SUCH
DISCHARGE NOR BEEN DISMISSED." 

ARTICLE 14(ELEVENTH) STEMS FROM AN ACT OF CONGRESS PASSED IN 1863,
PARTICULARLY DESIGNED TO PUNISH FRAUDS AGAINST THE MILITARY BRANCHES OF
THE GOVERNMENT IN CONNECTION WITH THE PROCUREMENT OF SUPPLIES FOR WAR
ACTIVITIES.  12 STAT. 696.  THAT THE ATTENTION OF THE 1863 CONGRESS WAS
DIRECTLY FOCUSED UPON THE POWERS THAT COULD AND SHOULD BE VESTED IN
COURTS-MARTIAL IS MADE CLEAR BY THE DEBATES AND BY THE FACT THAT
CONGRESS DELETED FROM THE BILL AS PROPOSED SPECIFIC PROVISIONS WHICH
WOULD HAVE MADE CIVILIAN GOVERNMENT CONTRACTORS SUBJECT TO TRIAL BEFORE
MILITARY AND NAVAL COURTS-MARTIAL.  CONG. GLOBE, 37TH CONG., 3D SESS.
952-958(1863), AND APPENDIX TO CONG. GLOBE, 37TH CONG., 3D SESS.
199(1863).  SEE EX PARTE HENDERSON, 11 FED. CAS. 1067, NO. 6,349(C.C.D.
KY. 1878).  AND SEE UNITED STATES EX REL. MARCUS V. HESS, 317 U.S. 537,
539-545.  BUT AFTER ELIMINATION OF CERTAIN PROVISIONS WHICH WOULD
FURTHER HAVE EXPANDED COURT-MARTIAL JURISDICTION, CONGRESS LEFT IN THE
BILL SEC. 3, NOW NAVAL ARTICLE 14(ELEVENTH), WHICH MAKES NAVAL
PERSONNEL GUILTY OF SERVICE FRAUDS SUBJECT TO COURT-MARTIAL AFTER
DISCHARGE OR DISMISSAL.  THE SAME 1863 PROVISION HAS ALSO BEEN MADE
APPLICABLE TO ARMY PERSONNEL BY ARTICLE OF WAR 94, 10 U.S.C. SEC.
1566. 

CONGRESS IN THIS 1863 ACT PLAINLY RECOGNIZED THAT THERE WAS A
SIGNIFICANT DIFFERENCE BETWEEN COURT-MARTIAL POWER TO TRY MEN IN THE
SERVICE AND TO TRY FORMER SERVICEMEN AFTER THEIR DISCHARGE.  THE
GOVERNMENT CORRECTLY ARGUES THAT THE ATTENTION OF THE 1863 CONGRESS WAS
NOT FOCUSED ON THE PRECISE QUESTION HERE, NAMELY, THE EXTENT OF A
MILITARY COURT'S STATUTORY POWER TO PUNISH A MAN PRESENTLY "IN THE
SERVICE" FOR AN OFFENSE COMMITTED IN A PRIOR ENLISTMENT PERIOD FROM
WHICH HE HAS BEEN DISCHARGED.  BUT THE FACT REMAINS THAT THE 1863
CONGRESS DID ACT ON THE IMPLICIT ASSUMPTION THAT WITHOUT A GRANT OF
CONGRESSIONAL AUTHORITY MILITARY COURTS WERE WITHOUT POWER TO TRY
DISCHARGED OR DISMISSED SOLDIERS FOR ANY OFFENSES COMMITTED WHILE IN
THE SERVICE.  ACTING ON THIS ASSUMPTION, CONGRESS GRANTED SUCH A POWER
TO COURTS-MARTIAL BUT ONLY IN THE VERY LIMITED CATEGORY OF OFFENSES
THERE DEFINED - FRAUDS AGAINST THE GOVERNMENT.  FN2  SINCE THE 1863
ACT, CONGRESS HAS NOT PASSED ANY MEASURE THAT DIRECTLY EXPANDED COURT
MARTIAL POWERS OVER DISCHARGED SERVICEMEN, WHETHER THEY RE-ENLISTED OR
NOT. 

OBVIOUSLY ARTICLE 8(SECOND), WHICH SUBJECTS TO COURT-MARTIAL
JURISDICTION PERSONS "IN THE NAVY," SUPPORTS AN ARGUMENT THAT
PETITIONER WAS SUBJECT TO TRIAL BY THIS COURT-MARTIAL.  IT IS EQUALLY
OBVIOUS THAT THE LANGUAGE OF ARTICLE 8(SECOND) PARTICULARLY IN VIEW OF
ARTICLE 14(ELEVENTH) SUPPORTS AN ARGUMENT THAT THIS COURT-MARTIAL COULD
NOT TRY PETITIONER FOR AN OFFENSE COMMITTED PRIOR TO HIS HONORABLE
DISCHARGE.  UNDER THESE CIRCUMSTANCES THE MANNER IN WHICH COURT-MARTIAL
JURISDICTION HAS LONG BEEN EXERCISED BY THE ARMY AND NAVY IS ENTITLED
TO GREAT WEIGHT IN INTERPRETING THE ARTICLES. 

THE QUESTION OF THE JURISDICTION OF A NAVAL COURT-MARTIAL OVER
DISCHARGED PERSONNEL WAS SUBMITTED BY THE SECRETARY OF THE NAVY TO THE
ATTORNEY GENERAL IN 1919.  THE PRECISE QUESTION OF WHETHER RE
ENLISTMENT COULD REVIVE JURISDICTION OF A MILITARY COURT WAS NOT
CONSIDERED, BUT AS TO THE POWER OF MILITARY COURTS OVER DISCHARGED
PERSONNEL IN GENERAL THE ATTORNEY GENERAL REACHED THE CONCLUSION THAT A
PERSON DISCHARGED FROM THE NAVY BEFORE PROCEEDINGS WERE INSTITUTED
AGAINST HIM "FOR VIOLATIONS OF THE ARTICLES GOVERNING THE NAVY,
EXCEPTING ARTICLE 14" COULD NOT "THEREAFTER BE BROUGHT TO TRIAL  ...
FOR SUCH VIOLATIONS, THOUGH COMMITTED WHILE HE WAS IN THE SERVICE."  31
OP. ATTY. GEN. 521, 529.  THIS CONCLUSION OF THE ATTORNEY GENERAL
RELIED ON STATEMENTS OF THE JUDGE ADVOCATE GENERALS OF THE ARMY AND
NAVY THAT THEIR OFFICES HAD "FROM THE BEGINNING AND UNIFORMLY HELD THAT
A PERSON SEPARATED FROM THE SERVICE CEASES TO BE AMENABLE" TO MILITARY
AND NAVAL JURISDICTION.  PREVIOUS TO THE ATTORNEY GENERAL'S 1919
OPINION NEITHER THE NAVY NOR ARMY HAD EVER CLAIMED COURT-MARTIAL POWER
TO TRY THEIR PERSONNEL FOR OFFENSES COMMITTED PRIOR TO AN HONORABLE
DISCHARGE WHERE PROCEEDINGS HAD NOT BEEN INSTITUTED BEFORE DISCHARGE. 
SEE WINTHROP, MILITARY LAW AND PRECEDENTS 93(2D ED. 1920).  THE
GOVERNMENT CONCEDES THAT THE ARMY HAS ALWAYS SO CONSTRUED ITS COURT
MARTIAL JURISDICTION WHENEVER THE QUESTION AROSE.  AND THE GOVERNMENT
CONCEDES THAT THE NAVY ALSO FOLLOWED THIS VIEW OF ITS JURISDICTION
UNTIL 1932.  FN3  MANY HOLDINGS AND OPINIONS OF ARMY AND NAVY
AUTHORITIES ARE CITED TO SUPPORT THESE CONCESSIONS.  THE GOVERNMENT'S
BRIEF QUOTES THE FOLLOWING LANGUAGE BY THE NAVY DEPARTMENT IN ONE OF
THE CASES WHICH CONSIDERED THE PRECISE ISSUE RAISED HERE.  THE CASE
APPEARS IN CMO 12-1921, P. 11. 

"EXCEPT IN CASES OF OFFENSES IN VIOLATION OF ARTICLE 14 OF THE
ARTICLES FOR THE GOVERNMENT OF THE NAVY, THERE IS NO AUTHORITY OF LAW
GIVING JURISDICTION TO A COURT-MARTIAL TO TRY AN ENLISTED MAN FOR AN
OFFENSE COMMITTED IN A PRIOR ENLISTMENT FROM WHICH HE HAS AN HONORABLE
DISCHARGE, REGARDLESS OF THE FACT THAT HE HAS SUBSEQUENTLY REENLISTED
IN THE NAVAL SERVICE AND WAS SERVING UNDER SUCH REENLISTMENT AT THE
TIME THE JURISDICTION OF THE COURT WAS ASSERTED." 

ACCEPTING AS WE DO THE LONG-STANDING ARMY AND NAVY INTERPRETATION OF
THE ARTICLES PREVIOUSLY REFERRED TO, AN INTERPRETATION WHICH
NECESSARILY WOULD DENY JURISDICTION TO THE COURT-MARTIAL HERE, THERE
REMAINS THE CONTENTION THAT THE NAVY HAS BY A RECENT CONGRESSIONALLY
AUTHORIZED REGULATION ACQUIRED SUCH JURISDICTION FOR ITS COURTS
MARTIAL.  34 U.S.C. SEC. 591 AUTHORIZES THE SECRETARY OF THE NAVY, WITH
THE APPROVAL OF THE PRESIDENT, TO ADOPT AND ALTER REGULATIONS AND
ORDERS FOR CONTROL OF THE NAVY.  THE GOVERNMENT CLAIMS THAT A
REGULATION ADOPTED PURSUANT TO THIS AUTHORITY HAS BEEN PROMULGATED,
FN4  AND THAT IT VESTED THE NECESSARY POWER IN THIS COURT-MARTIAL TO
TRY PETITIONER.  THIS AUTHORIZED REGULATION, IT IS CONTENDED, HAD THE
FORCE OF LAW, EX PARTE REED, 100 U.S. 13, 22, AND CONSEQUENTLY
SUPPLANTS THE PRIOR STATUTES WHICH, AS INTERPRETED, HAD DENIED THE
JURISDICTION HERE ASSERTED.  THERE HAS BEEN CONSIDERABLE ARGUMENT AS TO
WHETHER THE LANGUAGE OF THE NAVY REGULATION WAS SUFFICIENTLY PRECISE TO
ENDOW IT WITH THE FORCE OF LAW.  PASSING OVER THIS ARGUMENT, HOWEVER,
WE ARE NOT ABLE TO AGREE THAT THE NAVY COULD IN THIS MANNER ACQUIRE THE
EXPANDED COURT-MARTIAL JURISDICTION IT CLAIMED.  FOR WE CANNOT CONSTRUE
34 U.S.C. SEC. 591 AS PERMITTING THE NAVY TO EXTEND ITS COURT-MARTIAL
JURISDICTION BEYOND THE LIMITS CONGRESS HAD FIXED.  UNITED STATES V.
SYMONDS, 120 U.S. 46, 49-50.    THE REGULATION STANDS NO BETTER IF IT
BE CONSIDERED MERELY AS AN EVIDENCE OF A REVISED NAVAL INTERPRETATION
OF THE ARTICLE.  THIS REVISED NAVAL INTERPRETATION WAS GIVEN IN 1932. 
BEFORE THAT TIME, BOTH ARMY AND NAVY HAD FOR MORE THAN HALF A CENTURY
ACTED ON THE IMPLICIT ASSUMPTION THAT DISCHARGED SERVICEMEN, WHETHER
REENLISTED OR NOT, WERE NO LONGER SUBJECT TO COURT-MARTIAL POWER.  THE
ATTORNEY GENERAL OF THE UNITED STATES HAD PROCEEDED ON THE SAME
ASSUMPTION.  AND SEE UNITED STATES V. KELLY, 15 WALL.  34, 36.  UNDER
THESE CIRCUMSTANCES, LITTLE WEIGHT CAN BE GIVEN TO THE 1932 SEPARATE
EFFORT OF THE NAVY TO CHANGE THE LONG-ACCEPTED UNDERSTANDING OF ITS
STATUTORY COURT-MARTIAL POWER.  FOR SHOULD THIS BELATED NAVAL
INTERPRETATION BE ACCEPTED AS CORRECT, THERE WOULD BE LEFT OUTSTANDING
AN ARMY INTERPRETATION OF ITS STATUTORY COURT-MARTIAL POWERS DIRECTLY
OPPOSED TO THAT OF THE NAVY.  SINCE THE ARMY AND NAVY COURT-MARTIAL
POWERS DEPEND ON SUBSTANTIALLY THE SAME STATUTORY FOUNDATIONS, THE
OPPOSING INTERPRETATIONS CANNOT BOTH BE RIGHT, UNLESS IT BE ASSUMED
THAT CONGRESS HAS LEFT EACH FREE TO DETERMINE ITS OWN COURT-MARTIAL
BOUNDARIES.  WE CANNOT ASSUME THAT CONGRESS INTENDED A DELEGATION OF
SUCH BROAD POWER IN AN AREA WHICH SO VITALLY AFFECTS THE RIGHTS AND
LIBERTIES OF THOSE WHO ARE NOW, HAVE BEEN, OR MAY BE ASSOCIATED WITH
THE NATION'S ARMED FORCES.  REVERSED. 

FN1  COURT-MARTIAL JURISDICTION TO TRY PETITIONER DEPENDS ON A PART
OF ARTICLE 8(SECOND), WHICH REACHES ONLY CONDUCT OF AN OFFENDER CHARGED
WITH "MALTREATMENT OF, ANY PERSON SUBJECT TO HIS ORDERS."  BEFORE THE
COURT-MARTIAL AND IN THE DISTRICT COURT PETITIONER CONTENDED THAT THE
COURT-MARTIAL WAS WITHOUT JURISDICTION IN HIS CASE BECAUSE THE ALLEGED
MALTREATMENT WAS OF NAVAL ENLISTED MEN WHO WERE NOT "SUBJECT TO HIS
ORDERS" BY VIRTUE OF HIS UNITED STATES NAVY OBLIGATIONS, BUT THAT
WHATEVER AUTHORITY HE THEN HAD OVER THE OTHER NAVY MEN CAME FROM DUTIES
ASSIGNED HIM BY THE JAPANESE AS A PRISONER OF WAR.  BOTH THE DISTRICT
COURT AND THE COURT OF APPEALS REJECTED THIS SUGGESTED INTERPRETATION
OF THE ARTICLE, AND THE CONTENTION IS NOT URGED HERE. 

FN2  THE DISCUSSION OF THE 1863 ACT SHOWED THAT CONGRESS RATHER
GRUDGINGLY CONCEDED THIS COMPARATIVELY SLIGHT EXPANSION OF THE COURT
MARTIAL POWER APPARENTLY PROMPTED BY REPORTS OF PARTICULARLY ABHORRENT
RECENT FRAUDS BY WAR CONTRACTORS, SUCH AS THE SUPPLY OF SHELLS TO THE
ARMY "FILLED NOT WITH THE PROPER EXPLOSIVE MATERIALS FOR USE, BUT WITH
SAW-DUST."  CONG. GLOBE, 37TH CONG., 3D SESS. 955(1863).  THIS ACTION
OF THE 1863 CONGRESS DOES NOT SUPPORT AN ARGUMENT THAT CONGRESS HAS
BEEN QUICK IN RESPONSE TO APPEALS FOR EXPANSION OF COURT-MARTIAL
JURISDICTION.  SEE DUNCAN V. KAHANAMOKU, 327 U.S. 304; EX PARTE
MILLIGAN, 4 WALL.  2. 

FN3  SINCE 1932 THE NAVY HAS CONSISTENTLY ADHERED TO ITS REVISED
INTERPRETATION OF ART. 8(SECOND).  IN 1934 THE NAVY DEPARTMENT
INCORPORATED THIS REVISED INTERPRETATION IN AN OFFICIAL NAVY
PUBLICATION, NAVAL COURTS AND BOARDS, AND THIS INTERPRETATION BECAME
SEC. 334(A) OF NAVAL COURTS AND BOARDS (1937 ED.). 

FN4  THE REGULATION APPEARING IN THE 1937 NAVAL COURTS AND BOARDS
SEC. 334 CONTAINED THE FOLLOWING LANGUAGE: 

"  ...  EXCEPT FOR OFFENSES PROVIDED FOR IN ARTICLE 14, A.G.N., A
COURT MARTIAL MAY NOT TRY AN INDIVIDUAL WHO HAS BEEN FORMALLY SEPARATED
FROM THE NAVY AND IS NO LONGER IN THE SERVICE UNLESS PROCEEDINGS WERE
INSTITUTED AGAINST HIM WHILE HE WAS IN THE SERVICE.  WERE INSTITUTED
AGAINST HIM WHILE HE WAS IN THE SERVICE....  SIMILARLY, THE NAVY
DEPARTMENT HAS PASSED CASES AS LEGAL IN WHICH ENLISTED MEN HAVE BEEN
CONVICTED BY COURT MARTIAL OF OFFENSES COMMITTED IN A PREVIOUS
ENLISTMENT, ALTHOUGH SUCH OFFENSES WERE NOT PROVIDED FOR IN ARTICLE 14,
A.G.N." 
..END :









DANIEL V. FAMILY INS. CO., 336 U.S. 220 


NO. 297.  ARGUED FEBRUARY 2, 1949.  - DECIDED FEBRUARY 28, 1949.  - 79
F.SUPP.  62, REVERSED. 


1.  AS APPLIED IN THIS CASE, A SOUTH CAROLINA STATUTE FORBIDDING LIFE
INSURANCE COMPANIES AND THEIR AGENTS TO ENGAGE IN THE UNDERTAKING
BUSINESS AND FORBIDDING UNDERTAKERS TO SERVE AS AGENTS FOR LIFE
INSURANCE COMPANIES DOES NOT CONTRAVENE THE DUE PROCESS OR EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 220-225. 

2.  THAT AN "INSURANCE LOBBY" MAY HAVE SECURED THE ENACTMENT OF THE
STATUTE HAS NO BEARING ON ITS CONSTITUTIONALITY.  P. 224. 

3.  IT CANNOT BE SAID THAT SOUTH CAROLINA IS NOT ENTITLED TO CALL THE
FUNERAL INSURANCE BUSINESS AN EVIL NOR THAT THE STATUTE HAS NO RELATION
TO SUCH AN EVIL.  PP. 224-225. 

DANIEL, ATTORNEY GENERAL, ET AL. V. FAMILY SECURITY LIFE INSURANCE CO.
ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF SOUTH CAROLINA. 

A THREE-JUDGE FEDERAL DISTRICT COURT ENJOINED ENFORCEMENT OF A SOUTH
CAROLINA STATUTE FORBIDDING A COMBINATION OF THE LIFE INSURANCE AND
UNDERTAKING BUSINESSES, ON THE GROUND THAT IT CONTRAVENED THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.  79
F.SUPP.  62.  ON DIRECT APPEAL TO THIS COURT, REVERSED, P. 225. 

OPINION OF THE COURT BY MR. JUSTICE MURPHY, ANNOUNCED BY MR. JUSTICE
RUTLEDGE. 

A SOUTH CAROLINA STATUTE PROVIDES THAT LIFE INSURANCE COMPANIES AND
THEIR AGENTS MAY NOT OPERATE AN UNDERTAKING BUSINESS, AND UNDERTAKERS
MAY NOT SERVE AS AGENTS FOR LIFE INSURANCE COMPANIES.  CRIMINAL
SANCTIONS ARE PROVIDED.  ACT NO. 787, S.C. ACTS OF 1948, P. 1947.  FN1
RESPONDENTS BROUGHT ACTION BEFORE A THREE-JUDGE DISTRICT COURT IN THE
EASTERN DISTRICT OF SOUTH CAROLINA, SEEKING AN INJUNCTION FORBIDDING
THE ENFORCEMENT OF THE STATUTE.  28 U.S.C. SEC. 380, NOW 28 U.S.C.
SECS. 2281, 2284.  THE COURT, ONE JUDGE DISSENTING, UPHELD RESPONDENTS'
CONTENTIONS THAT THE STATUTE, AS APPLIED IN THIS CASE, DID NOT PROVIDE
THAT DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAWS GUARANTEED BY
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.  A
PERMANENT INJUNCTION ISSUED, 79 F.SUPP.  62, AND THE SOUTH CAROLINA
ATTORNEY GENERAL HAS APPEALED TO THIS COURT.  28 U.S.C. SEC. 380, NOW
28 U.S.C. SECS. 1253, 2281. 

THE RESPONDENT INSURANCE COMPANY IS INCORPORATED AND LICENSED TO DO
BUSINESS IN SOUTH CAROLINA, AND CONFORMS WITH THE COMPREHENSIVE CODE OF
INSURANCE REGULATIONS ESTABLISHED BY ACT NO. 232, S.C. ACTS OF 1947, P.
322.  THE OTHER RESPONDENTS ARE ITS OFFICERS AND DIRECTORS.  IT ISSUES
LIFE INSURANCE WITH CASH BENEFITS RANGING FROM $125 TO $750.  THE
AMOUNT OF OUTSTANDING POLICIES HAD REACHED A TOTAL OF $838,375 IN MAY
OF 1948, COMPARED TO NOTHING IN FEBRUARY OF THE SAME YEAR.  MOST OF THE
COMPANY'S AGENTS ARE UNDERTAKERS.  PARTIES TO THE INSURANCE CONTRACT
CONTEMPLATE USE OF THE POLICY'S PROCEEDS TO PAY FUNERAL EXPENSES.  A
"FACILITY OF PAYMENT" CLAUSE MIGHT JUSTIFY PAYMENT OF PROCEEDS TO AN
UNDERTAKER FOR THE INSURED'S FUNERAL.  AT THE TIME OF THE TRIAL,
RESPONDENT COMPANY WAS THE ONLY CONCERN IN SOUTH CAROLINA SELLING
"FUNERAL INSURANCE" AS AN ESTABLISHED PRACTICE. 

FOR MANY YEARS SOUTH CAROLINA HAS PROHIBITED THE PAYMENT OF INSURANCE
PROCEEDS IN MERCHANDISE OR SERVICES.  ACT NO. 205, S.C. ACTS OF 1929,
P. 234; S.C. CODE OF 1942, SEC. 7984; ACT NO. 232, S.C. ACTS OF 1947,
SEC. 65, P. 350.  POSSIBILITIES OF FRAUD, MISUNDERSTANDING IN
VALUATION, AND THE COMPARATIVELY USELESS CHARACTER OF THE MERCHANDISE
DELIVERED OR SERVICES RENDERED MAKE RESPONDENTS READILY CONCEDE THE
DESIRABILITY OF THIS BAN.  OTHER STATES HAVE SIMILAR STATUTES.  FN2 

THE SOUTH CAROLINA LEGISLATURE MIGHT WELL HAVE CONCLUDED THAT FUNERAL
INSURANCE, ALTHOUGH PAID IN CASH, CARRIES THE SAME EVILS THAT ARE
PRESENT IN POLICIES PAYABLE IN MERCHANDISE OR SERVICES: THE
BENEFICIARY'S TENDENCY TO DELIVER THE POLICY'S PROCEEDS TO THE AGENT
UNDERTAKER FOR WHATEVER FUNERAL THE MONEY WILL BUY, WHETHER OR NOT AN
EXPENSIVE CEREMONY IS CONSISTENT WITH THE NEEDS OF THE SURVIVORS.  FN3
CONSIDERATIONS WHICH MIGHT HAVE BEEN INFLUENTIAL INCLUDE THE LIKELIHOOD
OF OVERREACH ON THE PART OF INSURANCE COMPANIES, AND THE POSSIBILITIES
OF MONOPOLY CONTROL DETAILED IN AFFIDAVITS INTRODUCED IN THE COURT
BELOW. 

THE SOUTH CAROLINA LEGISLATURE IS NOT ALONE IN SEEING EVILS IN THIS
KIND OF INSURANCE, AND IN INVOKING ITS POLICE POWERS TO COMBAT THEM. 
SEE THE SIMILAR PROVISIONS IN N.Y. INSURANCE LAW, SEC. 165(C); FLA.
STAT. (1941), SEC. 639.02; GA. CODE ANN. SEC. 56-9920; PAGE'S OHIO
GENERAL CODE, SEC. 666(1946)(SEE ROBBINS V. HENNESSEY, 86 OHIO ST. 181,
99 N.E. 319); MD. ANN. CODE, ART. 48A, SEC. 110(1939).  AND SEE THE
SUMMARY OF CRITICAL ARGUMENTS IN BUSINESS WEEK, OCTOBER 20, 1945, PP.
48, 51. 

YET THE COURT BELOW HELD THAT THE STATUTE IS "ARBITRARY AND
DISCRIMINATIVE AND DESIGNED TO DESTROY, AND WILL DESTROY, THE PLAINTIFF
INSURANCE COMPANY AND ITS BUSINESS  ...  "  "IT SEEMS OBVIOUS FROM THE
RECORD THAT THIS LEGISLATION HAD ITS GENESIS IN THE DESIRE OF THE
EXISTING INSURANCE COMPANIES TO ELIMINATE THE PLAINTIFF COMPANY AS A
COMPETITOR.  ...  "  79 F.SUPP.  AT 70, 65.  THE COURT FOUND THAT THE
RESPONDENT'S POLICIES ARE ACTUARIALLY SOUND; THAT FUNERAL INSURANCE IS
DESIRABLE; AND THAT THE OTHER SOUTH CAROLINA INSURANCE REGULATIONS ARE
"AMPLE" TO CORRECT ANY EVILS RESULTING FROM RESPONDENTS' BUSINESS.  THE
COURT CONCLUDED THAT THE STATUTE NOW BEFORE US IS SO UNREASONABLE THAT
IT OFFENDS THE DUE PROCESS CLAUSE. 

FIRST.  IT IS SAID THAT THE "INSURANCE LOBBY" OBTAINED THIS STATUTE
FROM THE SOUTH CAROLINA LEGISLATURE.  BUT A JUDICIARY MUST JUDGE BY
RESULTS, NOT BY THE VARIED FACTORS WHICH MAY HAVE DETERMINED
LEGISLATORS' VOTES.  WE CANNOT UNDERTAKE A SEARCH FOR MOTIVE IN TESTING
CONSTITUTIONALITY.  SEE HAMMER V. DAGENHART, 247 U.S. 251, OVERRULED IN
UNITED STATES V. DARBY, 312 U.S. 100.  COMPARE BAILEY V. DREXEL
FURNITURE CO., 259 U.S. 20, AND UNITED STATES V. CONSTANTINE, 296 U.S.
287, WITH SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 393. 
COMPARE UNITED STATES V. BUTLER, 297 U.S. 1, WITH STEWARD MACHINE CO.
V. DAVIS, 301 U.S. 548, 592, AND CINCINNATI SOAP CO. V. UNITED STATES,
301 U.S. 308. 

SECOND.  DESPITE EVIDENCE TO THE CONTRARY, RESPONDENTS SEE NO EVIL TO
BE CORRECTED BY THIS LEGISLATION.  WE ARE ASKED TO AGREE WITH
RESPONDENTS AND CALL THE STATUTE ARBITRARY AND UNREASONABLE. 

LOOKING THROUGH THE FORM OF THIS PLEA TO ITS ESSENTIAL BASIS, WE
CANNOT FAIL TO RECOGNIZE IT AS AN ARGUMENT FOR INVALIDITY BECAUSE THIS
COURT DISAGREES WITH THE DESIRABILITY OF THE LEGISLATION.  WE REHEARSE
THE OBVIOUS WHEN WE SAY THAT OUR FUNCTION IS THUS MISCONCEIVED.  WE ARE
NOT EQUIPPED TO DECIDE DESIRABILITY; AND A COURT CANNOT ELIMINATE
MEASURES WHICH DO NOT HAPPEN TO SUIT ITS TASTES IF IT SEEKS TO MAINTAIN
A DEMOCRATIC SYSTEM.  THE FORUM FOR THE CORRECTION OF ILL-CONSIDERED
LEGISLATION IS A RESPONSIVE LEGISLATURE. 

WE CANNOT SAY THAT SOUTH CAROLINA IS NOT ENTITLED TO CALL THE FUNERAL
INSURANCE BUSINESS AN EVIL.  NOR CAN WE SAY THAT THE STATUTE HAS NO
RELATION TO THE ELIMINATION OF THOSE EVILS.  THERE OUR INQUIRY MUST
STOP.  FN4 

THIS RATIONALE DID NOT FIND EXPRESSION IN LIGGETT CO. V. BALDRIDGE,
278 U.S. 105, ON WHICH RESPONDENTS RELY.  ACCORDING TO THE MAJORITY IN
LIGGETT, "A STATE CANNOT, 'UNDER THE GUISE OF PROTECTING THE PUBLIC,
ARBITRARILY INTERFERE WITH PRIVATE BUSINESS OR PROHIBIT LAWFUL
OCCUPATIONS OR IMPOSE UNREASONABLE AND UNNECESSARY RESTRICTIONS UPON
THEM.'"  278 U.S. AT 113.  BUT A PRONOUNCED SHIFT OF EMPHASIS SINCE THE
LIGGETT CASE HAS DEPRIVED THE WORDS "UNREASONABLE" AND "ARBITRARY" OF
THE CONTENT FOR WHICH RESPONDENTS CONTEND.  SEE LINCOLN FEDERAL LABOR
UNION V. NORTHWESTERN IRON & METAL CO., 335 U.S. 525, WHERE THE CASES
ARE REVIEWED. 

THE LIGGETT CASE, HOWEVER, WAS CONCERNED WITH A STATUTE FAR DIFFERENT
FROM THE ONE WE ARE CONSIDERING NOW.  PENNSYLVANIA REQUIRED DRUG STORE
OWNERS TO BE LICENSED PHARMACISTS.  BECAUSE THE STATUTE WAS DIRECTED AT
OWNERS, WHO MIGHT HAVE NO CONNECTION WITH THE PHARMACEUTICAL BRANCHES
OF MODERN DRUG STORES, A DIVIDED COURT THOUGHT THE MEASURE
UNREASONABLE.  THE PENNSYLVANIA STATUTE WAS CLEARLY LESS ADAPTED TO THE
RECOGNIZED EVIL THAN THE PROVISION NOW BEFORE US.  THE LIGGETT CASE, ON
ITS FACTS, IS NOT AUTHORITY FOR THE INVALIDATION OF THE SOUTH CAROLINA
MORTUARY ACT. 

THE SOUTH CAROLINA STATUTE, ON ITS FACE, DOES NOT CONTRAVENE THE
PROVISIONS OF THE FOURTEENTH AMENDMENT.  NEITHER DOES IT OFFEND THE
AMENDMENT AS APPLIED TO THESE RESPONDENTS.  FN5  WE REVERSE THE
JUDGMENT BELOW.  REVERSED. 

FN1  "SECTION 1:  LIFE INSURANCE COMPANIES AND THEIR EMPLOYEES NOT
OWN OR OPERATE UNDERTAKING BUSINESS.  - IT SHALL BE UNLAWFUL FOR ANY
LIFE INSURANCE COMPANY, CORPORATION, OR ASSOCIATION, EXCEPT FRATERNAL
BENEFIT SOCIETIES LICENSED TO DO BUSINESS IN THIS STATE TO OWN, MANAGE,
SUPERVISE, OR OPERATE OR MAINTAIN A MORTUARY OR UNDERTAKING
ESTABLISHMENT, OR TO PERMIT ITS OFFICERS, AGENTS OR EMPLOYEES TO OWN,
OPERATE OR MAINTAIN ANY SUCH FUNERAL OR UNDERTAKING BUSINESS. 

"SECTION 2:  LIFE INSURANCE COMPANY OR SICK OR FUNERAL BENEFIT
COMPANY NOT CONTRACT WITH UNDERTAKER CONDUCT FUNERAL OF PERSON INSURED
BY IT. - IT SHALL BE UNLAWFUL FOR ANY LIFE INSURANCE COMPANY, SICK OR
FUNERAL BENEFIT COMPANY, OR ANY COMPANY, CORPORATION OR ASSOCIATION
ENGAGED IN A SIMILAR BUSINESS TO CONTRACT OR AGREE WITH ANY FUNERAL
DIRECTOR, UNDERTAKER OR MORTUARY TO THE EFFECT THAT SUCH FUNERAL
DIRECTOR, UNDERTAKER, OR MORTUARY SHALL CONDUCT THE FUNERAL OF ANY
PERSON INSURED BY SUCH COMPANY, CORPORATION OR ASSOCIATION. 

"SECTION 3:  UNDERTAKER AND HIS EMPLOYEES NOT ACT AS AGENT FOR LIFE
INSURANCE COMPANY.  - IT SHALL BE UNLAWFUL FOR ANY FUNERAL DIRECTOR,
UNDERTAKER, OR MORTUARY, OR ANY AGENT, OFFICER OR EMPLOYEE THEREOF TO
BE LICENSED AS AGENT, SOLICITOR OR SALESMAN FOR ANY LIFE INSURANCE
COMPANY, CORPORATION OR ASSOCIATION DOING BUSINESS IN THIS STATE. 

"SECTION 4:  PENALTIES.  - ANY PERSON VIOLATING ANY OF THE PROVISIONS
OF THIS ACT SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND EACH VIOLATION
THEREOF SHALL BE A SEPARATE OFFENSE, AND UPON CONVICTION SHALL BE
PUNISHED BY FINE NOT EXCEEDING ONE THOUSAND ($1,000.00) DOLLARS OR BY
IMPRISONMENT AT HARD LABOR FOR NOT EXCEEDING SIX (6) MONTHS, OR BOTH
SUCH FINE AND IMPRISONMENT WITHIN THE DISCRETION OF THE COURTS.  ...
" 

FN2  SEE FLA. STAT. (1941), SEC. 639.04; ME. REV. STAT., C. 56, SEC.
138(1944); KY. REV. STAT., SEC. 303.120(1946); ILL. REV. STAT., C. 73,
SEC. 956(1947). 

FN3  "YOU COME TO THE PLACE OF BUSINESS, THE MORTUARY, TO PAY IT.
MONTH IN AND MONTH OUT.  THE INDUCEMENT FOR A FUNERAL DIRECTOR TO ALIGN
HIMSELF WITH THIS IS THE FACT THAT IT WILL FREEZE THIS BUSINESS TO
HIM.  HE DOESN'T HAVE TO, LET ME HASTEN TO SAY.  YOU DON'T HAVE TO CALL
THAT FUNERAL DIRECTOR, BUT IF HE CONTINUOUSLY BEATS A PATH TO HIS DOOR
TO PAY HIS INSURANCE, THERE IS NO QUESTION ABOUT IT THAT IF HE HAS ANY
DECENT EMPLOYEES, THEY ARE GOING TO CONVINCE THE MAN THE THING TO DO IS
TO COME TO THEM.  NOW, IS THAT A HEALTHY SITUATION?"  PROCEEDINGS OF
THE SENATE BANKING AND INSURANCE COMMITTEE, STATE OF SOUTH CAROLINA,
MARCH 31, 1948, NO. 1382, IN RE "THE MORTUARY BILL."  R. 85. 

FN4  OUR DEFERENCE TO THE LEGISLATIVE JUDGMENT IS PARTICULARLY
PRONOUNCED IN A FIELD AS TRADITIONALLY WELL REGULATED AS INSURANCE. 
SEE OSBORN V. OZLIN, 310 U.S. 53, 65, 66; LA TOURETTE V. MCMASTER, 248
U.S. 465, 467, 468; PRUDENTIAL INSURANCE CO. V. BENJAMIN, 328 U.S. 408,
416, N. 13. 

FN5  THAT RESPONDENT COMPANY IS THE ONLY CONCERN NOW AFFECTED BY THE
STATUTE DOES NOT, OF COURSE, MEAN A DENIAL OF EQUAL PROTECTION.  THE
STATUTE IS DRAWN IN GENERAL TERMS; THE COMPANY'S SUCCESS MIGHT WELL
INDUCE OTHERS TO ENTER THE BUSINESS.  SEE THE DISSENTING OPINION BELOW,
79 F.SUPP.  AT 73, 74.  AND SEE MASON V. MISSOURI, 179 U.S. 328. 
..END :












LABOR BOARD V. STOWE SPINNING CO., 336 U.S. 226 


NO. 46.  ARGUED DECEMBER 9-10, 1948.  - DECIDED FEBRUARY 28, 1949.  -
165 F.2D 609, REVERSED. 


1.  IN THE CIRCUMSTANCES OF THIS CASE, THE NATIONAL LABOR RELATIONS
BOARD COULD PROPERLY FIND THAT IT WAS AN UNFAIR LABOR PRACTICE
VIOLATIVE OF SEC. 8(1) OF THE NATIONAL LABOR RELATIONS ACT, FOR AN
EMPLOYER TO DISCRIMINATE AGAINST A LABOR ORGANIZATION BY DENYING IT THE
USE OF A COMPANY-OWNED MEETING HALL WHICH WAS THE ONLY AVAILABLE
MEETING HALL IN A COMPANY TOWN.  THE BOARD HAD FOUND THAT THE USE OF
THE HALL HAD BEEN FREELY GIVEN TO OTHER GROUPS AND THAT THE EMPLOYER'S
SOLE PURPOSE IN DENYING THE USE OF IT TO THE LABOR ORGANIZATION WAS TO
IMPEDE SELF-ORGANIZATION AND COLLECTIVE BARGAINING BY ITS EMPLOYEES. 
PP. 227-233. 

(A)  IN THE SETTING OF THIS CASE, IT CAN NOT BE SAID AS A MATTER OF
LAW THAT THE GRANT OF THE USE OF THE MEETING HALL TO THE LABOR
ORGANIZATION WOULD VIOLATE THE PROVISION OF SEC. 8(2) FORBIDDING
EMPLOYER INTERFERENCE WITH THE FORMATION OR ADMINISTRATION OF ANY LABOR
ORGANIZATION.  PP. 230-232. 

(B)  SUCH INTERFERENCE WITH THE EMPLOYER'S PROPERTY RIGHTS AS IS
CONTEMPLATED BY THE RESULT IN THIS CASE DOES NOT DENY ANY RIGHT OF THE
EMPLOYER UNDER THE FIFTH AMENDMENT OF THE FEDERAL CONSTITUTION.  P.
232. 

2.  THE ORDER OF THE NATIONAL LABOR RELATIONS BOARD IN THIS CASE,
REQUIRING THE EMPLOYER TO CEASE AND DESIST FROM REFUSING THE USE OF THE
MEETING HALL TO THE COMPLAINANT OR ANY OTHER LABOR ORGANIZATION, IS TOO
BROAD AND IS NOT SUPPORTED BY THE FINDINGS OF THE BOARD; AND IT MUST BE
MODIFIED SO AS TO RESTRAIN THE EMPLOYER FROM TREATING A LABOR
ORGANIZATION'S APPLICATION FOR USE OF THE HALL ON A DIFFERENT BASIS
FROM THOSE OF OTHERS SIMILARLY SITUATED.  PP. 232-233. 

NATIONAL LABOR RELATIONS BOARD V. STOWE SPINNING CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

THE COURT OF APPEALS REFUSED ENFORCEMENT OF THAT PART OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD, 70 N.L.R.B. 614, WHICH REQUIRED AN
EMPLOYER TO GRANT TO A LABOR ORGANIZATION THE USE OF A MEETING HALL IN
A COMPANY TOWN.  165 F.2D 609.  THIS COURT GRANTED CERTIORARI.  334
U.S. 831.  REVERSED AND REMANDED, P. 233. 

OPINION OF THE COURT BY MR. JUSTICE MURPHY, ANNOUNCED BY MR. JUSTICE
RUTLEDGE. 

THE PRINCIPAL QUESTION FOR DECISION IS WHETHER THE CIRCUMSTANCES
JUSTIFIED THE FINDING OF AN UNFAIR LABOR PRACTICE.  A UNION ORGANIZER
WAS REFUSED THE USE OF A COMPANY-OWNED MEETING HALL, AND THE UNION
COMPLAINED TO THE BOARD.  AFTER THE USUAL PROCEEDINGS, THE BOARD FOUND
AN UNFAIR LABOR PRACTICE HAD BEEN COMMITTED, 70 N.L.R.B. 614.  THE
COURT OF APPEALS REFUSED TO ENFORCE THE BOARD'S ORDER, 165 F.2D 609,
AND THE CASE IS HERE ON CERTIORARI.  A SUBSIDIARY PROBLEM IS THE
BREADTH OF THE ORDER WE ARE ASKED TO ENFORCE. 

FIRST.  WE ARE ASKED TO OVERRULE THE BOARD'S FINDING THAT IT IS AN
UNFAIR LABOR PRACTICE  FN1 TO DISCRIMINATE AGAINST A UNION BY DENYING
IT THE ONLY AVAILABLE MEETING HALL IN A COMPANY TOWN WHEN THE BOARD
FINDS THAT THE "SOLE PURPOSE" OF THE DISCRIMINATORY DENIAL IS "TO
IMPEDE, PREVENT, AND DISCOURAGE SELF-ORGANIZATION AND COLLECTIVE
BARGAINING BY THE (COMPANY'S) EMPLOYEES WITHIN THE MEANING OF SECTION 7
OF THE ACT." 

NORTH BELMONT, NORTH CAROLINA, IS THE HOME OF THE FOUR RESPONDENTS'
MILLS.  INTERLOCKING DIRECTORATES AND FAMILY TIES MAKE THE FOUR EQUAL
ONE FOR OUR PURPOSES.  FN2  EACH OF THE MILLS OWNS A LARGE NUMBER OF
HOUSES IN NORTH BELMONT WHICH ARE RENTED TO EMPLOYEES.  AT A CENTRAL
LOCATION ARE A SCHOOL, A THEATRE, AND A BUILDING HOUSING A POST OFFICE,
ALL OWNED OR CONTROLLED BY THE MILL OWNERS.  IN SUM, NORTH BELMONT IS A
COMPANY TOWN. 

IN DECEMBER, 1944, HARRIS, A UNION ORGANIZER, APPEARED IN NORTH
BELMONT AND BEGAN THE FIRST ORGANIZATION DRIVE SINCE THE TEXTILE STRIKE
TEN YEARS EARLIER.  HE DECIDED TO BEGIN WITH EMPLOYEES OF RESPONDENT
STOWE.  A MEETING HALL WAS NEEDED FOR THE ACTIVITY, AND THE POST OFFICE
BUILDING WAS THE ONLY CHOICE OPEN TO THE ORGANIZER - HE WAS REFUSED
PERMISSION TO USE THE SCHOOL BUILDING, AND WAS TOLD THAT THE THEATRE
COULD BE USED ONLY FOR MOTION PICTURES.  MOST OF THE POST OFFICE
BUILDING WAS ERECTED BY RESPONDENTS FOR THE PATRIOTIC ORDER SONS OF
AMERICA, A "PATRIOTIC SECRET ORDER TO WHICH ANY MALE CITIZEN OF THE
UNITED STATES OF GOOD MORAL CHARACTER" CAN BELONG.  MANY OF
RESPONDENTS' EMPLOYEES ARE MEMBERS; RESPONDENTS CHECK OFF MONTHLY
DUES. 

THE ORDER'S PRESIDENT, BAXTER BLACK, TOLD HARRIS THAT THE PROPOSED
MEETING MIGHT BE HELD IN THE HALL ON THE PAYMENT OF A JANITOR'S FEE. 
HARRIS EMPHASIZED THAT HE WAS WILLING TO PAY FOR THE USE OF THE HALL. 
IT IS CLEAR HE WAS NOT ASKING SPECIAL FAVORS.  CIRCULARS WERE PRINTED
ANNOUNCING THE TIME AND PLACE OF THE MEETING.  THEREUPON D. P. STOWE,
FOR THE FOUR EMPLOYER-OWNERS, RESCINDED THE PERMISSION GRANTED -
BECAUSE HARRIS WAS A TEXTILE ORGANIZER.  WHILE THE BUILDING SEEMS TO
HAVE BEEN ERECTED ON THE UNDERSTANDING THAT ONLY THE PATRIOTIC ORDER
MIGHT USE IT, THAT CONDITION WAS NEVER ENFORCED UNTIL HARRIS' UNION
AFFILIATION REACHED THE EARS OF THE OWNERS.  UNTIL THEN THE ORDER HAD
HANDLED ITS OWN AFFAIRS; BLACK HAD BEEN SURE THAT HIS PERMISSION WAS
THE FINAL WORD ON THE MATTER. 

THE BOARD FOUND THAT THE REFUSAL "TO PERMIT USE OF THE HALL  ...
UNDER THE CIRCUMSTANCES, CONSTITUTED UNLAWFUL DISPARITY OF TREATMENT
AND DISCRIMINATION AGAINST THE UNION."  THE UNION'S COMPLAINT ALSO
CHARGED THAT SEVERAL EMPLOYEES HAD BEEN DISCHARGED BECAUSE OF UNION
ACTIVITY, AND AGAIN THE BOARD FOUND FOR THE UNION.  THE COURT OF
APPEALS ENFORCED THE REINSTATEMENT ORDER, BUT REFUSED ENFORCEMENT OF
THE ORDER RELATING TO THE USE OF THE HALL.  ON THE LATTER DETERMINATION
WE GRANTED CERTIORARI N3 TO RESOLVE AN ASSERTED CONFLICT WITH PRIOR
DECISIONS OF THIS COURT. 

COMPANY RULES IN REPUBLIC AVIATION CORP. V. LABOR BOARD AND LABOR
BOARD V. LE TOURNEAU COMPANY OF GEORGIA, 324 U.S. 793, FORBADE UNION
SOLICITATION ON COMPANY PROPERTY.  UNDER THE CIRCUMSTANCES THE BOARD
FOUND THAT THESE RULES OFFENDED THE ACT, AND WE UPHELD THE BOARD. 
STOWE TELLS US THAT ITS CASE IS FAR REMOVED FROM THE PRINCIPLES
ESTABLISHED IN THOSE DECISIONS:  THE BOARD IS NOW INVADING PRIVATE
PROPERTY UNCONNECTED WITH THE PLANT, FOR A PRIVATE PURPOSE, IN THE VERY
TEETH OF THE FIFTH AMENDMENT.  "FROM MAGNA CHARTA ON DOWN," WE ARE
WARNED, "THE INDIVIDUAL HAS BEEN GUARANTEED AGAINST DISSEISIN OF HIS
PROPERTY."  A PRIVATELY OWNED HALL IS DIFFERENT FROM THE PARKING LOT
INVOLVED IN LE TOURNEAU'S CASE. 

IN THE SENSE SUGGESTED BY STOWE, THE BOARD FINDING GOES FURTHER THAN
THOSE UPHELD PREVIOUSLY BY THIS COURT.  BUT IN A LARGER SENSE IT DOES
NOT.  WE MENTION NOTHING NEW WHEN WE NOTICE THAT UNION ORGANIZATION IN
A COMPANY TOWN MUST DEPEND, EVEN MORE THAN USUAL, ON A HANDS-OFF
ATTITUDE ON THE PART OF MANAGEMENT.  FN4  AND IT IS CLEAR THAT ONE OF
MANAGEMENT'S CHIEF WEAPONS, IN ATTEMPTING TO STIFLE ORGANIZATION, IS
THE DENIAL OF A PLACE TO MEET.  FN5  WE CANNOT EQUATE A COMPANY
DOMINATED NORTH CAROLINA MILL TOWN WITH THE VAST METROPOLITAN CENTERS
WHERE A NUMBER OF HALLS ARE AVAILABLE WITHIN EASY REACH OF PROSPECTIVE
UNION MEMBERS.  WE WOULD BE IGNORING THE OBVIOUS WERE WE TO HOLD THAT A
COMMON MEETING PLACE IN A COMPANY TOWN IS NOT AN IMPORTANT PART OF THE
COMPANY'S BUSINESS.  THE QUESTION IS OF COURSE ONE OF DEGREE.  BUT
ISOLATED PLANTS MUST DRAW LABOR, AND AN ELEMENT IN THAT DRAWING POWER
IS A COMMUNITY HALL OF SOME KIND.  FN6  IN THE BACKGROUND OF
DISCRIMINATION FOUND BY THE BOARD IN THIS CASE, WE CANNOT SAY THAT ITS
CONCLUSION SHOULD BE UPSET.  FN7  AS WE WILL POINT OUT BELOW, THE BOARD
MAY WEIGH THE EMPLOYER'S EXPRESSED MOTIVE IN DETERMINING THE EFFECT ON
EMPLOYEES OF MANAGEMENT'S OTHERWISE EQUIVOCAL ACT. 

STOWE CONTENDS THAT ITS DENIAL OF FACILITIES TO THE UNION WAS IN
ACCORD WITH SEC. 8(2) OF THE ACT, PROHIBITING EMPLOYER INTERFERENCE
WITH THE FORMATION OR ADMINISTRATION OF A LABOR ORGANIZATION.  ONE
BOARD MEMBER AGREED, CITING A NUMBER OF CASES IN WHICH THE BOARD HAD
MADE A GRANT OF COMPANY FACILITIES THE BASIS FOR UNFAIR PRACTICE
FINDINGS.  BUT STOWE WOULD HAVE THE CASES HOLD MORE THAN THEY DO.  IN
EACH OF THEM, GRANTING SUCH FACILITIES TO THE UNION WAS ONLY ONE FACET
IN A PATTERN OF DOMINATION FOUND BY THE BOARD.  FN8  THE OPINION OF THE
BOARD IN THIS CASE STATES THAT THE "MERE GRANTING OF A MEETING PLACE TO
A UNION BY AN EMPLOYER UNDER THE CONDITIONS PRESENT HERE WOULD NOT  ...
IN AND OF ITSELF CONSTITUTE UNLAWFUL ASSISTANCE TO THAT UNION  ...  "
WE HAVE SAID THAT THE WAGNER ACT "LEFT TO THE BOARD THE WORK OF
APPLYING THE ACT'S GENERAL PROHIBITORY LANGUAGE IN THE LIGHT OF THE
INFINITE COMBINATIONS OF EVENTS WHICH MIGHT BE CHARGED AS VIOLATIVE OF
ITS TERMS."  REPUBLIC AVIATION CORP. V. LABOR BOARD, SUPRA, 324 U.S. AT
798.  SECTIONS 8(1) AND 8(2) OF THE ACT WOULD SEEM TO RUN INTO EACH
OTHER IN THE SITUATION BEFORE US, WERE WE TO FORGET THAT THE BOARD IS
THE AGENCY WHICH WEIGHS THE RELEVANCE OF FACTUAL DATA.  PRESUMPTIONS
SUCH AS THOSE EMPLOYED IN THE PEYTON PACKING COMPANY CASE, 49 N.L.R.B.
828, AT 843-844,  FN9  MAY BE IMPORTANT IN CASES LIKE THIS ONE.  WHILE
THE WAGNER ACT DOES NOT ASK PUNISHMENT FOR EVIL INTENT, REPEATED ACTS
OF DISCRIMINATION MAY ESTABLISH A NATURAL TENDENCY TO VIEW
JUSTIFICATIONS OF OTHER LABOR PRACTICES WITH SOME SKEPTICISM. 
CALCULATING A CUMULATIVE EFFECT ON EMPLOYEES IS NOT A JOB FOR THIS
COURT.  WE CANNOT SAY THAT THE BOARD WAS WRONG AS A MATTER OF LAW IN
VIEW OF THE SETTING. 

THE PHILOSOPHY EXPRESSED IN THE FIFTH AMENDMENT DOES NOT AFFECT THE
VIEW WE TAKE.  THE WAGNER ACT WAS ADOPTED PURSUANT TO THE COMMERCE
CLAUSE, AND CERTAINLY CAN AUTHORIZE THE BOARD TO STOP AN UNFAIR LABOR
PRACTICE AS IMPORTANT AS THE ONE WE ARE CONSIDERING.  RESPONDENTS ARE
UNQUESTIONABLY ENGAGED IN INTERSTATE COMMERCE WITHIN THE MEANING OF THE
ACT.  IT IS NOT "'EVERY INTERFERENCE WITH PROPERTY RIGHTS THAT IS
WITHIN THE FIFTH AMENDMENT  ...  INCONVENIENCE, OR EVEN SOME
DISLOCATION OF PROPERTY RIGHTS, MAY BE NECESSARY IN ORDER TO SAFEGUARD
THE RIGHT TO COLLECTIVE BARGAINING.'"  324 U.S. AT 802.  FN10 

WE ARE ASKED TO READ THE DECREE IN ITS BACKGROUND, AND REJECT WHAT IS
CALLED A STRAINED CONSTRUCTION.  IMPLICIT IN THE ORDER, WE ARE TOLD, IS
THE WORD "REASONABLE."  PERHAPS THIS IS TRUE.  THE WORDS OF EVEN A
JUDICIAL DECREE MUST BE READ IN THEIR SETTING.  BUT VIOLATION OF THE
ORDER BRINGS THE SWIFT RETRIBUTION OF CONTEMPT, WITHOUT THE NORMAL
SAFEGUARDS OF A FULL-DRESS PROCEEDING.  SOME NOTICE OF THE PRIOR
PROCEEDING MUST BE TAKEN IN A CONTEMPT ACTION - THE VERY WORD
"REASONABLE" INVITES A GLANCE AT WHAT HAS GONE BEFORE.  BUT TOO GREAT
DEPENDENCE ON THE FORMER ACTION PLACES DEFENDANTS UNDER A RESTRAINT
THAT MAKES THE ORDER ITSELF A USELESS FORMALITY.  AGAIN THE QUESTION IS
OF DEGREE. 

IN THIS CASE, HOWEVER, THE BOARD DID NOT FIND THAT THE VERY DENIAL OF
THE HALL WAS AN UNFAIR LABOR PRACTICE.  IT FOUND THAT THE REFUSAL BY
THESE RESPONDENTS WAS UNREASONABLE BECAUSE THE HALL HAD BEEN GIVEN
FREELY TO OTHERS, AND BECAUSE NO OTHER HALLS WERE AVAILABLE FOR
ORGANIZATION.  NOW THE BOARD ASKS US TO ENFORCE AN ORDER THAT SIMPLY
DOES NOT MEAN WHAT IT SAYS.  WE MUST REQUIRE EXPLICIT LANGUAGE MAKING
IT CLEAR THAT THE MERE DENIAL OF FACILITIES WILL NOT SUBJECT
RESPONDENTS TO PUNISHMENT FOR CONTEMPT.  WHAT THE BOARD FOUND, AND ALL
WE ARE CONSIDERING HERE, IS DISCRIMINATION.  THE DECREE SHOULD BE
MODIFIED TO ORDER RESPONDENTS TO REFRAIN FROM ANY ACTIVITY WHICH WOULD
CAUSE A UNION'S APPLICATION TO BE TREATED ON A DIFFERENT BASIS THAN
THOSE OF OTHERS SIMILARLY SITUATED. 

WE THEREFORE DIRECT THE COURT OF APPEALS TO REMAND THE CASE TO THE
BOARD FOR AMENDMENT OF ITS ORDER TO CONFORM TO THE BOARD'S FINDINGS AND
THIS OPINION.  REVERSED AND REMANDED. 

FN1 UNDER THE WAGNER ACT, 49 STAT. 449, 29 U.S.C. SECS. 151, 158(1). 

FN2  THE BOARD FOUND THAT "A. C. LINEBERGER IS PRESIDENT OF THE
RESPONDENTS PERFECTION, ACME, AND LINFORD; J. HAROLD LINEBERGER IS VICE
PRESIDENT OF THE RESPONDENTS PERFECTION AND LINFORD, AND SECRETARY
TREASURER OF THE RESPONDENT ACME; D. P. STOWE IS VICE PRESIDENT OF THE
RESPONDENT ACME AND SECRETARY-TREASURER OF THE RESPONDENT PERFECTION. 
THE OFFICERS OF THE RESPONDENT STOWE ARE C. T. STOWE, PRESIDENT; C. P.
STOWE, VICE PRESIDENT; AND R. L. STOWE, SECRETARY-TREASURER, ALL OF
WHOM ARE COUSINS OF D. P. STOWE." 

FN3  STOWE'S PETITION WAS DENIED, 334 U.S. 831; THE REINSTATEMENT
ORDER IS NOT BEING REVIEWED IN THIS COURT. 

FN4  SEE LAHNE, THE COTTON MILL WORKER (NEW YORK, 1944), PP. 50-51. 

FN5  SEE MACDONALD, SOUTHERN MILL HILLS (NEW YORK, 1928), P. 34;
BLANSHARD, LABOR IN SOUTHERN COTTON MILLS (NEW YORK, 1927), P. 64. 

FN6  SEE NOTES 4 AND 5. 

FN7 RESPONDENTS DO NOT CONTEST THE BOARD FINDING THAT ANTIUNION BIAS
WAS THE CAUSE FOR THEIR REFUSAL OF THE HALL.  AND FOUR EMPLOYEES WERE
DISCHARGED FOR UNION ACTIVITY.  SEE 165 F.2D 609, 614.  EVEN IN THE
REPUBLIC AND LE TOURNEAU CASES NO SUCH DISCRIMINATION WAS SHOWN.  324
U.S. AT 797, 801. 

FN8  SEE, FOR EXAMPLE, BERKSHIRE KNITTING MILLS V. LABOR BOARD, 139
F.2D 134(COMPANY UNION GIVEN USE OF HALL DENIED TO OUTSIDE UNION);
LABOR BOARD V. CARLISLE LUMBER CO., 94 F.2D 138(COMPANY UNION GIVEN
PREFERENCE OVER BOARD-CERTIFIED BARGAINING REPRESENTATIVE); LABOR BOARD
V. NORFOLK SHIPBUILDING & DRYDOCK CORP., 109 F.2D 128(RECOGNITION OF
INSIDE UNION WITHOUT ASCERTAINING EMPLOYEES' WISHES - INSIDE UNION
GIVEN USE OF COMPANY ROOMS); LABOR BOARD V. LANE COTTON MILLS, 111 F.2D
814(REFUSAL TO BARGAIN WITH CERTIFIED UNION COUPLED WITH USE OF
RECREATION ROOM BY COMPANY UNION).  AND SEE CUDAHY PACKING CO. V. LABOR
BOARD, 118 F.2D 295; MATTER OF STANDARD OIL OF CALIFORNIA, 61 N.L.R.B.
1251; MATTER OF VIRGINIA ELECTRIC & POWER CO., 44 N.L.R.B. 404,
ENFORCED 319 U.S. 533. 

FN9  CITED AND QUOTED WITH APPROVAL IN THE REPUBLIC CASE AT 803,
804. 

FN10  WE POINTED OUT THAT NEITHER THE REPUBLIC NOR LE TOURNEAU CASES
"IS LIKE A MINING OR LUMBER CAMP WHERE THE EMPLOYEES PASS THEIR REST AS
WELL AS THEIR WORK TIME ON THE EMPLOYER'S PREMISES, SO THAT UNION
ORGANIZATION MUST PROCEED UPON THE EMPLOYER'S PREMISES OR BE SERIOUSLY
HANDICAPPED."  324 U.S. AT 799. 

ACCORDINGLY, WE THINK THE COURT OF APPEALS SHOULD HAVE UPHELD THE
BOARD'S UNFAIR PRACTICE CHARGE. 

SECOND. STOWE'S FINAL CONTENTION, THAT THE BOARD'S ORDER IS TOO
BROAD, IS MORE SERIOUS.  STOWE IS ORDERED TO "CEASE AND DESIST FROM
...  REFUSING TO PERMIT THE USE OF THE PATRIOTIC ORDER SONS OF AMERICA
HALL BY ITS EMPLOYEES OR EMPLOYEES OF (THE OTHER RESPONDENTS) OR BY
TEXTILE WORKERS UNION OF AMERICA, C.I.O., OR ANY OTHER LABOR
ORGANIZATION, FOR THE PURPOSE OF SELF-ORGANIZATION OR COLLECTIVE
BARGAINING."  THERE ARE NONE OF THE USUAL QUALIFICATIONS ON THE FACE OF
THE ORDER; FN11  ONE CONSTRUCTION WOULD PERMIT UNIONS TO USE THE HALL
AT ALL TIMES, WHATEVER THE LEGITIMATE ACTIVITY OF THE PATRIOTIC ORDER. 
FN11  COMPARE LABOR BOARD V. LAKE SUPERIOR LUMBER CORP., 167 F.2D
147, 150, WHERE THE BOARD RECOGNIZED THAT THE EMPLOYER MIGHT IMPOSE
"LAWFUL AND REASONABLE CONDITIONS." 

MR. JUSTICE JACKSON, DISSENTING IN PART. 

I FIND MYSELF UNABLE TO JOIN THE COURT'S OPINION BECAUSE I HAVE A
DIFFERENT VIEW AS TO THE NATURE OF THE UNFAIR LABOR PRACTICE INVOLVED
WHICH LEADS ME TO A DIFFERENT CONCLUSION AS TO THE REMEDY THAT THE
BOARD MAY PRESCRIBE. 

THE EMPLOYERS' PLANT WAS LOCATED IN A COMPANY-OWNED TOWN.  IT
CONTAINED ONLY THREE BUILDINGS SUITABLE FOR USE FOR A PUBLIC MEETING. 
THE UNION NEEDED A MEETING PLACE AND SOUGHT TO USE ANY ONE OF THE
THREE. 

ONE IS A MOTION PICTURE THEATER OWNED AND CONTROLLED BY THE EMPLOYERS
BUT OPERATED BY A LESSEE.  THE UNION WAS REFUSED ITS USE UPON THE
GROUND THAT IT WAS AVAILABLE ONLY FOR MOTION PICTURES. 

ANOTHER WAS A SCHOOL BUILDING PUBLICLY OWNED BUT CONTROLLED BY A
SCHOOL BOARD COMPOSED ENTIRELY FROM OFFICERS OF THE EMPLOYERS.  THE
UNION SOUGHT TO USE THE SCHOOLHOUSE BUT, AFTER SOME NEGOTIATIONS, WAS
TOLD BY ITS CUSTODIAN THAT AN OFFICER OF ONE OF THE EMPLOYERS HAD
ISSUED INSTRUCTIONS NOT TO PERMIT SUCH USE. 

THE THIRD WAS A BUILDING OWNED AND CONTROLLED BY THE EMPLOYERS,
OCCUPIED BY THE POST OFFICE AND A GROCERY STORE ON THE FIRST FLOOR AND
BY A MEETING HALL ON THE SECOND.  THIS HALL FOR SOME TIME HAD BEEN THE
QUARTERS OF THE PATRIOTIC ORDER SONS OF AMERICA, A FRATERNAL
ORGANIZATION WHICH IN PRACTICE HAD EXERCISED FULL CONTROL OVER IT AND
HAD PERMITTED VARIOUS OTHER ORGANIZATIONS TO USE IT FOR COMMUNITY
PURPOSES.  ITS OFFICERS CONSENTED TO THE UNION'S USE OF THE HALL ON THE
PAYMENT OF A NOMINAL JANITOR'S FEE.  BEFORE THE SCHEDULED MEETING,
HOWEVER, AN OFFICER OF THE EMPLOYERS TOLD THE HEAD OF THE FRATERNAL
ORDER THAT HE SHOULD NOT HAVE ALLOWED THE USE OF THE HALL AND CAUSED
THE PERMISSION TO BE WITHDRAWN.  WHILE THE TENURE OF THE FRATERNAL
ORGANIZATION IS SOMEWHAT SHADOWY, IT APPEARS THAT IT HAD BEEN GIVEN AT
LEAST SUCH CONTROL OF THE USE OF THE HALL THAT ITS CONSENT WOULD HAVE
CONSTITUTED A LICENSE SO THAT THE UNION WOULD NOT HAVE BEEN
TRESPASSING. 

BUT FOR THE INTERFERENCE OF THE EMPLOYERS, EITHER THE SCHOOLHOUSE OR
THE PATRIOTIC SONS HALL MIGHT HAVE BEEN OBTAINED.  I AGREE WITH THE
COURT THAT THE BOARD WAS JUSTIFIED IN FINDING THAT THE EMPLOYERS'
ACTION IN PREVENTING THE UNION FROM OBTAINING THIS PLACE OF ASSEMBLY
CONSTITUTED AN UNFAIR LABOR PRACTICE.  BUT I DO NOT THINK THIS FINDING
IS OR CAN BE BASED ON DISCRIMINATION.  THE EMPLOYERS, HAVING PERMITTED
THE PATRIOTIC SONS TO CONTROL USE OF THE HALL, COULD NOT PROPERLY
INTERFERE AND COMMAND REVERSAL OF THE SONS' APPROVAL OF THE UNION'S
APPLICATION.  ON THESE FACTS, SUCH CONDUCT WOULD AMOUNT TO AN UNFAIR
LABOR PRACTICE, EVEN THOUGH NO OTHER ORGANIZATION HAD EVER BEEN ALLOWED
TO USE THE HALL.  THE INTERFERENCE TO OUST THE UNION WAS ENOUGH WITHOUT
A DISCRIMINATION, WHICH COULD HARDLY OCCUR UNLESS SOME OTHER UNION HAD
BEEN ALLOWED TO USE THE HALL.  CONSEQUENTLY, I THINK THE BOARD COULD
REQUIRE THE EMPLOYER TO NOTIFY THE PATRIOTIC SONS THAT IT HAS BEEN
UNFAIR IN THE OBJECTIONS HERETOFORE MADE AND THAT IT WILL MAKE NO
OBJECTIONS IN THE FUTURE, AND THAT THE PATRIOTIC SONS ARE FREE TO ALLOW
SUCH TEMPORARY USE IF THEY SEE FIT. 

BUT THE BOARD'S ORDER GOES BEYOND THIS.  IT HAS ORDERED THAT THE
EMPLOYERS TAKE AFFIRMATIVE ACTION TO PLACE THE HALL OF THE PATRIOTIC
SONS AT THE DISPOSAL OF THE UNION.  IT IS ONE THING TO FORBID THE
EMPLOYERS TO BRING PRESSURE ON THE CUSTODIAN OF THE HALL TO SHUT OUT
THE UNION; IT IS ANOTHER THING TO ORDER THEM TO BRING PRESSURE ON THE
CUSTODIAN TO ADMIT THE UNION, OR TO ORDER THE EMPLOYERS TO REPOSSESS
THE HALL AND TURN IT OVER TO THE UNION.  IF THE EMPLOYERS WERE
CONTROLLING THE HALL DIRECTLY, I WOULD HAVE SERIOUS DOUBTS WHETHER
DENIAL OF UNION USE OF THE HALL COULD BE AN UNFAIR LABOR PRACTICE, AND
EQUALLY SERIOUS DOUBTS WHETHER IT WOULD NOT BE AN UNFAIR LABOR PRACTICE
UNDER SEC. 8(2) OF THE ACT TO ALLOW IT.  NEITHER THE COMPLAINING UNION
NOR ANY OTHER HAS YET BEEN CHOSEN AS BARGAINING AGENT FOR THESE
EMPLOYEES.  FOR THE EMPLOYERS TO PROVIDE THIS UNION A HALL, BY DIRECT
PERMISSION OR BY INDIRECT PRESSURE ON THE PATRIOTIC SONS, MAY READILY
CONVEY TO EMPLOYEES AN IMPRESSION OF FAVORING THE UNION THUS INDULGED. 
AS THE COURT BELOW POINTED OUT, THE POLICY OF THE ACT AS HERETOFORE
APPLIED IS ONE OF PREVENTING THE EMPLOYER FROM EXTENDING FINANCIAL AID
OR SUPPORT TO ANY UNION.  I THINK, IN THE LONG RUN, INTERPRETATION OF
THE ACT TO REQUIRE A COMPLETE HANDS-OFF ATTITUDE ON THE PART OF
EMPLOYERS WILL BETTER EFFECTUATE THE PURPOSES OF THE ACT THAN AN
OCCASIONAL DEPARTURE FROM IT TO REQUIRE SOME KIND OF AID TO A UNION AS
AN EXPEDIENT FOR CORRECTING OR PUNISHING AN UNFAIR LABOR PRACTICE. 

IF THE ACT PERMITTED IMPOSING SUCH A PENALTY UPON THE EMPLOYERS, IT
WOULD PERHAPS BE APPROPRIATE TO COMPEL THEM TO PROVIDE A MEETING HALL
IN LIEU OF THOSE IT KEPT THE UNION FROM OBTAINING.  HOWEVER, IT IS WELL
ESTABLISHED BY DECISIONS OF THIS COURT THAT SEC. 10(C) OF THE ACT IS
REMEDIAL, NOT PUNITIVE.  CONSOLIDATED EDISON CO. V. LABOR BOARD, 305
U.S. 197; REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7.  IN BOTH
CASES, CHIEF JUSTICE HUGHES SAID FOR THE COURT "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."  305 U.S. 197, 235, AND 311
U.S. 7, 11. 

CONSEQUENTLY, I THINK THE ORDER SHOULD BE MODIFIED TO PROVIDE THAT
THE EMPLOYER SHALL CEASE AND DESIST FROM INTERFERING IN ANY MANNER WITH
THE DISCRETION OF THE PATRIOTIC SONS WITH RESPECT TO USE OF THE HALL
AND THAT APPROPRIATE NOTICES SHALL BE POSTED. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THE CONTROLLING POINT FOR DECISION IN THIS CASE IS WHETHER THE BOARD
WAS JUSTIFIED IN CONCLUDING THAT THE FOUR RESPONDENT COMPANIES
INTERFERED WITH RIGHTS GUARANTEED BY SEC. 7 OF THE WAGNER ACT.  SECTION
7 PROVIDES THAT "EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION,
TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS  ...  "  49 STAT. 452. 
THE BOARD'S COMPLAINT CHARGED AN UNFAIR LABOR PRACTICE UNDER SEC. 8(1)
AGAINST THE FOUR RESPONDENT COMPANIES BY THEIR INTERFERENCE WITH THE
RIGHTS GUARANTEED BY SEC. 7.  THE FORM OF INTERFERENCE WAS THE REFUSAL
OF THE USE OF A HALL JOINTLY OWNED BY RESPONDENTS TO EMPLOYEES OF ONE
OF THEM FOR THE PURPOSE OF SELF-ORGANIZATION.  IF THE FOUR RESPONDENTS
VIOLATED SEC. 7, DID THE BOARD HAVE POWER TO REDRESS THAT VIOLATION BY
ENTERING SEC. 1(B) AND SEC. 2(C) OF ITS ORDER AGAINST STOWE AND SIMILAR
ORDERS AGAINST THE OTHER THREE RESPONDENTS?  SECTION 1(B) ORDERED THE
RESPONDENTS TO CEASE AND DESIST FROM 

"REFUSING TO PERMIT THE USE OF THE PATRIOTIC ORDER SONS OF AMERICA
HALL BY ITS EMPLOYEES OR EMPLOYEES OF ACME SPINNING COMPANY, PERFECTION
SPINNING COMPANY OR LINFORD MILLS, INC., OR BY TEXTILE WORKERS UNION OF
AMERICA, C.I.O., OR ANY OTHER LABOR ORGANIZATION, FOR THE PURPOSE OF
SELF-ORGANIZATION OR COLLECTIVE BARGAINING;" 

AND SEC. 2(C) ORDERED RESPONDENTS TO 

"UPON REQUEST, GRANT TO ITS EMPLOYEES AND EMPLOYEES OF ACME SPINNING
COMPANY, PERFECTION SPINNING COMPANY, OR LINFORD MILLS, INC., AND TO
TEXTILE WORKERS OF AMERICA, C.I.O., OR ANY OTHER LABOR ORGANIZATION,
THE USE OF THE PATRIOTIC ORDER SONS OF AMERICA HALL FOR THE PURPOSES OF
SELF-ORGANIZATION OR COLLECTIVE BARGAINING;" 

THE BOARD DECIDED THAT THE REFUSAL OF THE HALL VIOLATED SEC. 7 AND
CONCLUDED AS A MATTER OF LAW: 

"3.  BY INTERFERING WITH, RESTRAINING, AND COERCING THEIR EMPLOYEES
IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION 7 OF THE ACT, THE
RESPONDENTS STOWE SPINNING COMPANY, ACME SPINNING COMPANY, PERFECTION
SPINNING COMPANY, AND LINFORD MILLS, INC., HAVE ENGAGED IN AND ARE
ENGAGING IN UNFAIR LABOR PRACTICES, WITHIN THE MEANING OF SECTION 8(1)
OF THE ACT." 

THE COURT OF APPEALS ACCURATELY SUMMARIZED THE BOARD'S ACTION IN
THESE WORDS: 

"IT (THE BOARD) MADE THE FINDING THAT THE OWNER'S REFUSAL 'TO PERMIT
USE OF THE HALL FOR PURPOSES OF SELF ORGANIZATION IN A LABOR UNION
UNDER THE CIRCUMSTANCES CONSTITUTED UNLAWFUL DISPARITY OF TREATMENT AND
DISCRIMINATION AGAINST THE UNION.'  IT POINTED OUT THAT FOREMOST AMONG
THE METHODS UNIVERSALLY UTILIZED BY EMPLOYEES IN SELF ORGANIZATION IS
THE EXERCISE OF THE CONSTITUTIONAL RIGHT OF PEACEABLE ASSEMBLY.  IT
HELD THAT THE SOLE PURPOSE OF THE RESPONDENTS' ACTION WAS TO IMPEDE,
PREVENT AND DISCOURAGE THE EMPLOYEES IN THE EXERCISE OF THIS BASIC
RIGHT AND THAT BY REFUSING THE UNION PERMISSION TO USE THE ONLY
AVAILABLE MEETING PLACE IN THE COMMUNITY, THE RESPONDENTS IN FACT
DEPRIVED THE EMPLOYEES OF STOWE OF THE RIGHT."  LABOR BOARD V. STOWE
SPINNING CO., 165 F.2D 609, 611. 

IN REVERSING THE BOARD THE COURT OF APPEALS SAID: 

"  ...  THE EMPLOYER HAS NOT INTERFERED WITH, RESTRAINED OR COERCED
ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS.  EVEN THOUGH IT WAS
EVIDENT TO THE WORKERS THAT THE ACTION OF THE OWNERS OF THE HALL WAS
INSPIRED BY HOSTILITY TO THE UNION, THE REFUSAL DID NOT AMOUNT TO
UNLAWFUL INTERFERENCE, RESTRAINT OR COERCION."  ID., 611. 

A DETERMINATION THAT AS A MATTER OF LAW IT IS OR IT IS NOT AN UNFAIR
LABOR PRACTICE FOR RESPONDENTS TO REFUSE THE USE OF THEIR HALL FOR
UNION ORGANIZATION PURPOSES WILL DECIDE THIS CASE. 

THE FINDINGS SHOW THAT THE CENTER OF THE VILLAGE OF NORTH BELMONT IS
APPROXIMATELY 2 1/2 MILES FROM THE CENTER OF THE TOWN OF BELMONT.  IN
THE VILLAGE THERE ARE FOUR TEXTILE MILLS AND ABOUT EACH TEXTILE MILL A
NUMBER OF HOUSES THAT BELONG TO THE CORPORATIONS THAT OWN THE
RESPECTIVE MILLS.  AT A CENTRAL LOCATION IN THE VILLAGE, REACHED BY
WHAT WE ASSUME ARE PUBLIC ROADS AND STREETS, ARE THE SCHOOL, A THEATER,
AND A COMBINED POST OFFICE AND STORE; ABOVE THE POST OFFICE AND STORE
IS THE MEETING HALL IN QUESTION.  THESE FACILITIES, EXCEPT THE SCHOOL,
ARE OWNED JOINTLY BY THE FOUR CORPORATIONS THAT OWN THE MILLS.  NEITHER
THE RECORD NOR THE FINDINGS SHOW WHETHER OR NOT THERE IS PRIVATELY
OWNED REALTY IN THE VILLAGE BELONGING TO OTHERS THAN THE TEXTILE MILLS,
BUT WE ASSUME THAT THERE IS NONE. 

RESPONDENTS PROVIDED THE HALL AS A MEETING PLACE FOR THE PATRIOTIC
ORDER SONS OF AMERICA.  THE BOARD FOUND, 70 N.L.R.B. 614, 621: 

"AS TO THE ARRANGEMENTS UNDER WHICH THE P.O.S. OF A. WAS PERMITTED
USE OF THIS COMPANY-OWNED PROPERTY, STOWE CREDIBLY TESTIFIED WITHOUT
CONTRADICTION THAT 'IT WAS BUILT ESPECIALLY FOR THE PATRIOTIC SONS OF
AMERICA TO HOLD THEIR MEETINGS IN AND WAS NOT TO BE RENTED TO ANYBODY
ELSE.'  HE ALSO TESTIFIED:  '  ...  WE TOLD THE PATRIOTIC SONS OF
AMERICA THAT WE WERE GOING TO LET THEM USE THE BUILDING FREE OF RENT,
BUT WERE NOT GOING TO ALLOW IT TO BE RENTED FOR ANY (OTHER)
PURPOSES.'" 

UNDER SUCH AN ARRANGEMENT THE MEMBERS OF THE FRATERNAL ORDER WERE
LICENSEES, WHO WERE PERMITTED TO USE THE HALL ONLY BY VIRTUE OF THE
OWNER'S CONSENT.  THERE WAS THE FURTHER BOARD STATEMENT, QUOTED BELOW,
AS TO THE USE OF THE HALL.  FN1 

IT DOES NOT APPEAR FROM THE RECORD HOW FAR THIS VILLAGE CENTER IS
FROM THE RESPECTIVE MILLS.  IT IS CLEAR, HOWEVER, THAT THE PATRIOTIC
ORDER SONS OF AMERICA HALL IS NOT CONNECTED WITH THE MILL OPERATIONS,
NOR IS ITS USE OPEN TO EMPLOYEES BECAUSE OF THEIR EMPLOYMENT BY ANY OF
THE MILLS.  THERE IS A DISTINCT LINE OF CLEAVAGE AS TO THE RIGHTS OF
EMPLOYEES BETWEEN FACILITIES AND MEANS OF PRODUCTION OPEN TO THE USE OF
EMPLOYEES THROUGH THEIR EMPLOYMENT CONTRACT AND OTHER PROPERTY OF THE
EMPLOYER THAT MAY BE USED BY ANY PERSON OTHER THAN THE OWNER ONLY
THROUGH SOME CONTRACT, LICENSE, OR PERMISSION, NOT A PART OF AN
EMPLOYMENT CONTRACT.  THE UNDISPUTED EVIDENCE DISCLOSES THAT MEMBERSHIP
IN THE FRATERNAL ORDER IS NOT RESTRICTED TO THE EMPLOYEES OF THE MILLS,
AND THAT IT INCLUDES OTHERS. 

THE ERROR INTO WHICH THE BOARD FELL CONCERNING THE RIGHT TO USE THE
PATRIOTIC ORDER SONS OF AMERICA HALL IS, IT SEEMS TO US, THAT IT
THOUGHT THE "DISPARITY OF TREATMENT AND DISCRIMINATION AGAINST THE
UNION" INVOLVED IN THE REFUSAL OF THE HALL WAS A VIOLATION OF THE
EMPLOYEES'"RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR
ORGANIZATIONS."  N2  SEC. 7.  IT IS ONLY WHEN THERE IS A VIOLATION
THROUGH AN INTERFERENCE WITH OR A RESTRAINING OR COERCION OF EMPLOYEES'
RIGHTS UNDER SEC. 7 THAT AN UNFAIR LABOR PRACTICE FINDING MAY BE
PREDICATED ON THE EMPLOYER'S ACTS.  THE EMPLOYER IS NOT REQUIRED TO AID
EMPLOYEES TO ORGANIZE.  THE LAW FORBIDS ONLY INTERFERENCE. 

EMPLOYMENT IN A BUSINESS ENTERPRISE GIVES AN EMPLOYEE NO RIGHTS IN
THE EMPLOYER'S OTHER PROPERTY, DISCONNECTED FROM THAT ENTERPRISE.  AS
TO SUCH PROPERTY, THE EMPLOYER STANDS ON THE SAME FOOTING AS ANY OTHER
PROPERTY OWNER.  AS INDICATED ABOVE, THAT IS THE CONDITION AS TO THE
PATRIOTIC ORDER SONS OF AMERICA HALL.  THE REFUSAL OF THIS OWNER TO
ALLOW THE HALL'S USE FOR UNION ORGANIZATION IS NOT AN UNFAIR LABOR
PRACTICE UNDER SECS. 7 AND 8 ANY MORE THAN A REFUSAL BY ANY OTHER
PRIVATE OWNER WOULD BE.  AS FAR AS THE HALL IS CONCERNED, THE RELATION
OF EMPLOYER-EMPLOYEE DOES NOT EXIST BETWEEN THE MILL OWNERS AND THE
MILL WORKERS.  THERE CANNOT BE AN UNFAIR LABOR PRACTICE AS TO THE USE
OF THIS HALL UNDER THE APPLICABLE SECTIONS OF THE NATIONAL LABOR
RELATIONS ACT. 

PERHAPS THE RULING OF THIS COURT IN MARSH V. ALABAMA, 326 U.S. 501,
APPROACHES CLOSER TO THIS PROBLEM THAN ANY OTHER CASE.  THERE ALABAMA
PUNISHED A DISTRIBUTOR OF RELIGIOUS LITERATURE FOR TRESPASS WHEN SHE
INSISTED ON PASSING OUT THE PAMPHLETS ON A PRIVATE SIDEWALK, USED BY
THE OWNERS' PERMISSION TO ENTER STORES AND THE POST OFFICE.  THIS COURT
REVERSED AND HELD THE APPLICATION OF THE STATE LAW OF TRESPASS VIOLATED
THE FOURTEENTH AMENDMENT.  THIS COURT HELD, P. 509:  "INSOFAR AS THE
STATE HAS ATTEMPTED TO IMPOSE CRIMINAL PUNISHMENT ON APPELLANT FOR
UNDERTAKING TO DISTRIBUTE RELIGIOUS LITERATURE IN A COMPANY TOWN, ITS
ACTION CANNOT STAND."  CERTAIN EXPRESSIONS, SET OUT BELOW,  FN3  OCCUR
IN THE OPINION AS TO THE RIGHT TO USE PRIVATE PROPERTY FOR SPEECH,
PRESS AND ASSEMBLY BUT THEY MUST BE READ IN THE LIGHT OF THE FACTS IN
THE MARSH CASE.  SO READ, OR HOWEVER READ, THEY CANNOT BE CONSTRUED AS
A HOLDING THAT THE NATURAL RIGHT OF FREE EXPRESSION OR OF ASSEMBLY,
GUARANTEED BY OUR CONSTITUTION, IS A DELUSION UNLESS ORGANIZERS AND
EVANGELISTS CAN COMMANDEER PRIVATE BUILDINGS FOR USE IN THE PROPAGATION
OF THEIR IDEAS.  THE MARSH CASE, IN MY VIEW, GOES NO FURTHER THAN TO
SAY THAT THE PUBLIC HAS THE SAME RIGHTS OF DISCUSSION ON THE SIDEWALKS
OF COMPANY TOWNS THAT IT HAS ON THE SIDEWALKS OF MUNICIPALITIES. 

THERE IS NOTHING IN THIS RECORD THAT INDICATES A SITUATION SUCH AS
EXISTS IN EMPLOYER-OWNED LUMBER CAMPS OR MINING PROPERTIES.  WHERE AN
EMPLOYER MAINTAINS LIVING, RECREATION AND WORK PLACES ON SUCH BUSINESS
PREMISES OPEN TO EMPLOYEES BY VIRTUE OF THEIR EMPLOYMENT, IT HAS BEEN
HELD THAT EXCLUSION OF UNION ORGANIZERS FROM CONTACT WITH THE EMPLOYEES
IS AN UNFAIR LABOR PRACTICE AND THAT THE BOARD'S ORDERING THE EMPLOYER
TO GRANT UNION REPRESENTATIVES ACCESS IN NON-WORKING HOURS TO THE
EMPLOYEES UNDER REASONABLE REGULATIONS IS A PROPER MEANS TO EFFECTUATE
THE PURPOSES OF THE ACT.  LABOR BOARD V. LAKE SUPERIOR LUMBER CORP.,
167 F.2D 147.  IT HAS NEVER BEEN HELD THAT WHERE THE EMPLOYEES DO NOT
LIVE ON THE PREMISES OF THEIR EMPLOYER A UNION ORGANIZER HAS TO BE
ADMITTED TO THOSE PREMISES.  THE PRESENT SITUATION DIFFERS FROM THE
EMPLOYER-CONTROLLED AREAS WHERE EMPLOYEES BOTH LIVE AND WORK IN THAT
HERE UNION ORGANIZERS MAY SOLICIT THE EMPLOYEES ON THE STREETS OR IN
THEIR HOMES OR AT PUBLIC MEETING HOUSES WITHIN A FEW MILES OF THEIR
EMPLOYMENT.  EMPLOYEES ARE NOT ISOLATED BEYOND THE HOURS OF LABOR FROM
AN ORGANIZER NOR IS AN ORGANIZER DENIED ACCESS TO THE EMPLOYEES.  AFTER
AN ORGANIZER HAS CONVINCED AN EMPLOYEE OF THE VALUE OF UNION
ORGANIZATION, THAT EMPLOYEE CAN DISCUSS UNION RELATIONS WITH HIS FELLOW
EMPLOYEES DURING NON-WORKING HOURS IN THE MILL.  THIS GIVES OPPORTUNITY
FOR UNION MEMBERSHIP PROLIFERATION.  REPUBLIC AVIATION CORP. V. LABOR
BOARD AND LABOR BOARD V. LE TOURNEAU COMPANY OF GEORGIA, 324 U.S. 793. 

THE PRESENT CASE DIFFERS FROM THE LE TOURNEAU AND REPUBLIC CASES IN
THAT IN THOSE CASES THE PROBLEM CONCERNED THE RIGHT OF AN EMPLOYER TO
MAINTAIN DISCIPLINE BY FORBIDDING EMPLOYEES TO FOSTER BY PERSONAL
SOLICITATION UNION ORGANIZATION ON THE GROUNDS OR IN THE PLANT OF THE
COMPANY DURING THE EMPLOYEES' NON-WORKING TIME.  WE HELD THAT, UNLESS
THERE WERE PARTICULAR CIRCUMSTANCES THAT JUSTIFIED SUCH A REGULATION TO
SECURE DISCIPLINE AND PRODUCTION, THE EMPLOYER MUST ALLOW SUCH
DISCUSSION.  REPUBLIC AVIATION CORP. V. LABOR BOARD, SUPRA. 

THE BOARD NOW SEEKS AN EXTENSION OF THIS RULE.  IT IS ARGUED THAT
WHERE THE ONLY READILY AVAILABLE MEETING PLACE IS A PIECE OF PROPERTY
BELONGING TO THE EMPLOYER, THE BOARD MAY REQUIRE HIM TO PERMIT HIS
EMPLOYEES TO USE THAT MEETING PLACE FOR PRESENTATION OF ARGUMENTS FOR
UNIONIZATION.  EVEN WHERE THE EMPLOYER HAS ALLOWED OTHER ORGANIZATIONS
TO USE HIS PROPERTY, I DO NOT THINK THAT THE WORDS OF THE STATUTE
GUARANTEEING EMPLOYEES THE RIGHT TO ORGANIZE AND TO FORM LABOR UNIONS
PERMIT SUCH AN EXTENSION.  EMPLOYMENT FURNISHES NO BASIS FOR EMPLOYEE
RIGHTS TO THE CONTROL OF PROPERTY FOR UNION ORGANIZATION WHEN THE
PROPERTY IS NOT A PART OF THE PREMISES OF THE EMPLOYER, USED IN HIS
BUSINESS.  SO TO CONSTRUE THE STATUTE RAISES SERIOUS PROBLEMS UNDER THE
FIFTH AMENDMENT.  WOULD THE THEATER, ALSO OWNED BY THE MILL
PROPRIETORS, BE SUBJECT TO THE UNION'S USER?  WOULD THAT CONSTRUCTION
AS APPLIED IN THE FINDING AND PARTICULARLY IN THE EARLIER QUOTED
JUST COMPENSATION OR FORCE PRIVATE OWNERS TO DEVOTE THEIR PROPERTY TO
PRIVATE PURPOSES, I.E., UNION ORGANIZATION?  DEFINITE LEGISLATIVE
LANGUAGE ONLY WOULD AUTHORIZE SUCH A CONSTRUCTION OF THIS STATUTE. 
UNITED STATES V. C.I.O., 335 U.S. 106, 120-21. 

LABOR UNIONS DO NOT HAVE THE SAME RIGHT TO UTILIZE THE PROPERTY OF AN
EMPLOYER NOT DIRECTLY A PART OF THE EMPLOYMENT FACILITIES, THAT AN
EMPLOYER HAS.  THE BOARD CANNOT REQUIRE THAT SUCH MEETING PLACES BE
FURNISHED FOR EMPLOYEES BY AN EMPLOYER UNDER THE TERMS OF THE ACT.  TO
REQUIRE THE EMPLOYER TO ALLOW LABOR UNION MEETINGS IN OR ON PROPERTY
ENTIRELY DISCONNECTED IN SPACE AND USE FROM THE BUSINESS OF THE
EMPLOYER AND EMPLOYEES IS TOO EXTRAVAGANT AN EXTENSION OF THE MEANING
OF THE ACT FOR ME TO BELIEVE IT IS WITHIN ITS LANGUAGE OR THE PURPOSE
OF CONGRESS. 

I WOULD AFFIRM THE COURT OF APPEALS. 

FN1  "AS A MATTER OF PRACTICE, SINCE 1937, THE HALL HAS BEEN USED,
ACCORDING TO THE CREDIBLE TESTIMONY OF BLACK, ON NUMEROUS OCCASIONS FOR
COMMUNITY AND EMPLOYEE MEETINGS.  VARIOUS CHURCHES HAVE USED THE HALL
FOR BANQUETS; 'LADIES AID' SOCIETIES HAVE GATHERED THERE; THE NORTH
BELMONT SCHOOL HAD THE USE OF THE HALL FOR AT LEAST ONE CHRISTMAS
PARTY; AND FOR SEVERAL WEEKS EMPLOYEES OF THE RESPONDENTS ATTENDED A
'SAFETY SCHOOL' HELD IN THE HALL.  THAT NO OTHER FRATERNAL ORDER MET
THERE IS EXPLAINED BY THE FACT, ESTABLISHED BY STOWE'S TESTIMONY, THAT
THE P.O.S. OF A. IS THE ONLY SUCH ORGANIZATION IN NORTH BELMONT. 
FURTHERMORE, BLACK'S CREDIBLE TESTIMONY IS UNDISPUTED THAT IT WAS THE
PRACTICE, WHEN ANY OTHER ORGANIZATION WANTED TO USE THE HALL, FOR THE
P.O.S. OF A. 'LODGE' ITSELF TO PASS UPON THE REQUEST.  THERE IS NO
EVIDENCE THAT ANY OTHER ORGANIZATION, EXCEPT THE UNION, WAS EVER
REFUSED USE OF THE HALL, EITHER BY THE P.O.S. OF A. OR BY THE
RESPONDENTS."  70 N.L.R.B. 614, 621. 

FN2  THE BOARD SAID:  "MOREOVER, IRRESPECTIVE OF THE RESPONDENTS'
MOTIVE, WE ARE CONVINCED, AND FIND UPON THE CONSIDERATION STATED ABOVE,
THAT BY REFUSING TO PERMIT THEIR EMPLOYEES TO EXERCISE THE RIGHT TO
MEET ON COMPANY-OWNED PROPERTY FOR THE PURPOSE OF HOLDING A UNION
MEETING, WHEN NO OTHER SUITABLE PROPERTY IN THE COMMUNITY WAS AVAILABLE
FOR THE PURPOSE, UNDER THE CIRCUMSTANCES SET FORTH ABOVE, THE
RESPONDENTS HAVE PLACED AN UNREASONABLE IMPEDIMENT ON FREEDOM OF
COMMUNICATION AND OF ASSEMBLY ESSENTIAL TO THE EXERCISE OF EMPLOYEES'
RIGHTS GUARANTEED BY SECTION 7 OF THE ACT.  BY THEIR CONDUCT IN
REVOKING THE GRANT OF PRIVILEGE TO USE THE HALL AND THUS DENYING THE
USE OF THE HALL TO THE UNION, THE RESPONDENTS STOWE, ACME, PERFECTION,
AND LINFORD INTERFERED WITH, RESTRAINED, AND COERCED THEIR EMPLOYEES IN
THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION 7 OF THE ACT, IN
VIOLATION OF SECTION 8(1) THEREOF."  ID., 624. 

FN3  "OWNERSHIP DOES NOT ALWAYS MEAN ABSOLUTE DOMINION.  THE MORE AN
OWNER, FOR HIS ADVANTAGE, OPENS UP HIS PROPERTY FOR USE BY THE PUBLIC
IN GENERAL, THE MORE DO HIS RIGHTS BECOME CIRCUMSCRIBED BY THE
STATUTORY AND CONSTITUTIONAL RIGHTS OF THOSE WHO USE IT.  ...  HAD THE
CORPORATION HERE OWNED THE SEGMENT OF THE FOUR-LANE HIGHWAY WHICH RUNS
PARALLEL TO THE 'BUSINESS BLOCK' AND OPERATED THE SAME UNDER A STATE
FRANCHISE, DOUBTLESS NO ONE WOULD HAVE SERIOUSLY CONTENDED THAT THE
CORPORATION'S PROPERTY INTEREST IN THE HIGHWAY GAVE IT POWER TO
OBSTRUCT THROUGH TRAFFIC OR TO DISCRIMINATE AGAINST INTERSTATE
COMMERCE.  ...  AND EVEN HAD THERE BEEN NO EXPRESS FRANCHISE BUT MERE
ACQUIESCENCE BY THE STATE IN THE CORPORATION'S USE OF ITS PROPERTY AS A
SEGMENT OF THE FOUR-LANE HIGHWAY, OPERATION OF ALL THE HIGHWAY,
INCLUDING THE SEGMENT OWNED BY THE CORPORATION, WOULD STILL HAVE BEEN
PERFORMANCE OF A PUBLIC FUNCTION AND DISCRIMINATION WOULD CERTAINLY
HAVE BEEN ILLEGAL. 

"WE DO NOT THINK IT MAKES ANY SIGNIFICANT CONSTITUTIONAL DIFFERENCE
AS TO THE RELATIONSHIP BETWEEN THE RIGHTS OF THE OWNER AND THOSE OF THE
PUBLIC THAT HERE THE STATE, INSTEAD OF PERMITTING THE CORPORATION TO
OPERATE A HIGHWAY, PERMITTED IT TO USE ITS PROPERTY AS A TOWN, OPERATE
A 'BUSINESS BLOCK' IN THE TOWN AND A STREET AND SIDEWALK ON THAT
BUSINESS BLOCK."  P. 506-507. 

     .         .         .      .         . 

"IN OUR VIEW THE CIRCUMSTANCE THAT THE PROPERTY RIGHTS TO THE
PREMISES WHERE THE DEPRIVATION OF LIBERTY, HERE INVOLVED, TOOK PLACE,
WERE HELD BY OTHERS THAN THE PUBLIC, IS NOT SUFFICIENT TO JUSTIFY THE
STATE'S PERMITTING A CORPORATION TO GOVERN A COMMUNITY OF CITIZENS SO
AS TO RESTRICT THEIR FUNDAMENTAL LIBERTIES AND THE ENFORCEMENT OF SUCH
RESTRAINT BY THE APPLICATION OF A STATE STATUTE."  P. 509. 
..END :















AUTO. WORKERS V. WIS. BOARD, 336 U.S. 245 


NOS. 14 AND 15.  ARGUED NOVEMBER 17-18, 1948.  - DECIDED FEBRUARY 28,
1949.  - 250 WIS. 550, 27 N.W.2D 875, AFFIRMED. 


NEGOTIATIONS FOR A COLLECTIVE BARGAINING AGREEMENT BETWEEN AN
EMPLOYER, ENGAGED IN INTERSTATE COMMERCE, AND A LABOR UNION, CERTIFIED
UNDER THE NATIONAL LABOR RELATIONS ACT AS COLLECTIVE BARGAINING
REPRESENTATIVE OF THE EMPLOYEES, BECAME DEADLOCKED.  IN ORDER TO BRING
PRESSURE ON THE EMPLOYER, THE UNION ADOPTED A PLAN WHEREBY UNION
MEETINGS WERE CALLED AT IRREGULAR TIMES DURING WORKING HOURS, WITHOUT
ADVANCE NOTICE TO THE EMPLOYER OR ANY NOTICE AS TO WHETHER OR WHEN THE
EMPLOYEES WOULD RETURN.  IN A PERIOD OF LESS THAN 5 MONTHS, 27 SUCH
WORK STOPPAGES OCCURRED.  THE EMPLOYER WAS NOT INFORMED DURING THIS
PERIOD OF ANY SPECIFIC DEMANDS WHICH THESE TACTICS WERE DESIGNED TO
ENFORCE NOR WHAT CONCESSIONS IT COULD MAKE TO AVOID THEM.  IN A
PROCEEDING UNDER THE WISCONSIN EMPLOYMENT PEACE ACT, THE WISCONSIN
EMPLOYMENT RELATIONS BOARD ISSUED AN ORDER WHICH WAS CONSTRUED AND
UPHELD BY THE STATE SUPREME COURT AS FORBIDDING THE INDIVIDUAL
DEFENDANTS AND MEMBERS OF THE UNION FROM ENGAGING IN CONCERTED EFFORT
TO INTERFERE WITH PRODUCTION BY THOSE METHODS.  HELD:  IT WAS WITHIN
THE POWER OF THE STATE TO PROHIBIT THE PARTICULAR COURSE OF CONDUCT
DESCRIBED.  PP. 247-265. 

1.  UPON REVIEW HERE, THE CONSTRUCTION PLACED UPON THE STATE BOARD'S
ORDER BY THE STATE SUPREME COURT IS CONCLUSIVE.  PP. 250-251. 

2.  AS THUS APPLIED, THE STATE STATUTE DOES NOT HAVE THE PURPOSE OR
EFFECT OF IMPOSING ANY FORM OF INVOLUNTARY SERVITUDE IN VIOLATION OF
THE THIRTEENTH AMENDMENT.  P. 251. 

3.  THE STATUTE AS APPLIED DOES NOT INVADE RIGHTS OF FREE SPEECH AND
PUBLIC ASSEMBLAGE GUARANTEED BY THE FOURTEENTH AMENDMENT.  LINCOLN
LABOR UNION V. NORTHWESTERN IRON & METAL CO., 335 U.S. 525; AMERICAN
FEDERATION OF LABOR V. AMERICAN SASH & DOOR CO., 335 U.S. 538.  PP. 251
252. 

4.  THE STATUTE AS APPLIED DOES NOT VIOLATE THE COMMERCE CLAUSE OF
THE FEDERAL CONSTITUTION.  P. 252. 

5.  THIS RECURRENT OR INTERMITTENT UNANNOUNCED STOPPAGE OF WORK TO
WIN UNSTATED ENDS WAS NEITHER FORBIDDEN BY FEDERAL STATUTE NOR WAS IT
LEGALIZED AND APPROVED THEREBY, AND THERE IS NO BASIS FOR DENYING TO
THE STATE THE POWER, IN GOVERNING HER INTERNAL AFFAIRS, TO REGULATE AN
ACTIVITY HAVING SUCH AN OBVIOUSLY COERCIVE EFFECT.  PP. 252-265. 

(A)  NEITHER BY THE NATIONAL LABOR RELATIONS ACT NOR BY THE LABOR
MANAGEMENT RELATIONS ACT HAS CONGRESS CLEARLY MANIFESTED AN INTENTION
TO EXCLUDE THE STATE POWER SOUGHT TO BE EXERCISED IN THIS CASE.  PP.
252-254. 

(B)  THERE IS NO EXISTING OR POSSIBLE CONFLICT OR OVERLAPPING BETWEEN
THE AUTHORITY OF THE FEDERAL AND STATE BOARDS, BECAUSE THE FEDERAL
BOARD HAS NO AUTHORITY TO INVESTIGATE, APPROVE OR FORBID THE UNION
CONDUCT IN QUESTION.  PP. 252-254. 

(C)  THE ORDER OF THE STATE BOARD DOES NOT CONFLICT WITH THE
PROVISION OF SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT THAT EMPLOYEES
SHALL HAVE THE RIGHT TO ENGAGE IN "CONCERTED ACTIVITIES" FOR THE
PURPOSE OF "COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION." 
PP. 254-258. 

(D)  NOR DOES THE ORDER OF THE STATE BOARD CONFLICT WITH SEC. 13 OF
THE NATIONAL LABOR RELATIONS ACT, WHICH PROVIDES THAT NOTHING IN THAT
ACT SHALL BE CONSTRUED SO AS TO "INTERFERE WITH OR IMPEDE OR DIMINISH"
THE RIGHT TO STRIKE - EVEN WHEN READ IN CONNECTION WITH THE DEFINITION
OF "STRIKE" IN THE LABOR MANAGEMENT RELATIONS ACT.  PP. 258-265. 

INTERNATIONAL UNION, U.A.W.A., A.F. OF L., LOCAL 232, ET AL. V.
WISCONSIN EMPLOYMENT RELATIONS BOARD ET AL. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

IN A PROCEEDING UNDER STATE LAW, THE WISCONSIN EMPLOYMENT RELATIONS
BOARD ORDERED A LABOR UNION AND MEMBERS THEREOF TO CEASE AND DESIST
FROM INSTIGATING CERTAIN INTERMITTENT AND UNANNOUNCED WORK STOPPAGES IN
THE PLANTS OF AN EMPLOYER ENGAGED IN INTERSTATE COMMERCE.  SEPARATE
PROCEEDINGS WERE INSTITUTED IN THE STATE COURTS BY THE BOARD TO ENFORCE
THE ORDER AND BY THE UNION AND INDIVIDUAL DEFENDANTS TO OBTAIN REVIEW. 
THE STATE SUPREME COURT, REVERSING JUDGMENTS OF THE TRIAL COURT, UPHELD
THE VALIDITY OF THE ORDER.  250 WIS. 550, 27 N.W.2D 875.  THIS COURT
GRANTED CERTIORARI.  333 U.S. 853.  AFFIRMED, P. 265. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

CERTAIN LABOR LEGISLATION OF THE STATE OF WISCONSIN,  FN1  AS APPLIED
BY ITS SUPREME COURT, IS CHALLENGED BECAUSE IT IS SAID TO TRANSGRESS
CONSTITUTIONAL LIMITATIONS IMPOSED BY THE THIRTEENTH AND FOURTEENTH
AMENDMENTS AND BY THE COMMERCE CLAUSE  FN2  AS IMPLEMENTED BY THE
NATIONAL LABOR RELATIONS ACT  FN3  AND THE LABOR MANAGEMENT RELATIONS
ACT OF 1947.  FN4 

THE SUPREME COURT OF WISCONSIN HELD  FN5  THAT ITS ACT AUTHORIZES THE
STATE EMPLOYMENT RELATIONS BOARD TO ORDER A LABOR UNION TO CEASE AND
DESIST FROM INSTIGATING CERTAIN INTERMITTENT AND UNANNOUNCED WORK
STOPPAGES WHICH IT HAD CAUSED UNDER THE FOLLOWING CIRCUMSTANCES:
BRIGGS & STRATTON CORPORATION OPERATES TWO MANUFACTURING PLANTS IN THE
STATE OF WISCONSIN ENGAGING APPROXIMATELY 2,000 EMPLOYEES.  THESE ARE
REPRESENTED BY THE INTERNATIONAL UNION, AUTOMOBILE WORKERS OF AMERICA,
A.F. OF L., LOCAL NO. 232, AS COLLECTIVE BARGAINING AGENT, IT HAVING
BEEN DULY CERTIFIED AS SUCH BY THE NATIONAL LABOR RELATIONS BOARD IN
PROCEEDINGS UNDER THE NATIONAL LABOR RELATIONS ACT.  UNDER SUCH
CERTIFICATION, THE UNION HAD NEGOTIATED COLLECTIVE BARGAINING
AGREEMENTS, THE LAST OF WHICH EXPIRED ON JULY 1, 1944.  NEGOTIATION OF
A NEW ONE REACHED A DEADLOCK AND BARGAINING SESSIONS CONTINUED FOR SOME
TIME WITHOUT SUCCESS. 

ON NOVEMBER 3, 1945, ITS LEADERS SUBMITTED TO THE UNION MEMBERSHIP A
PLAN FOR A NEW METHOD OF PUTTING PRESSURE UPON THE EMPLOYER.  THE
STRATAGEM CONSISTED OF CALLING REPEATED SPECIAL MEETINGS OF THE UNION
DURING WORKING HOURS AT ANY TIME THE UNION SAW FIT, WHICH THE EMPLOYEES
WOULD LEAVE WORK TO ATTEND.  IT WAS AN ESSENTIAL PART OF THE PLAN THAT
THIS SHOULD BE WITHOUT WARNING TO THE EMPLOYER OR NOTICE AS TO WHEN OR
WHETHER THE EMPLOYEES WOULD RETURN.  THE DEVICE WAS ADOPTED AND THE
FIRST SURPRISE CESSATION OF WORK WAS CALLED ON NOVEMBER 6, 1945;
THEREAFTER, AND UNTIL MARCH 22, 1946, SUCH ACTION WAS REPEATED ON
TWENTY-SIX OCCASIONS.  THE EMPLOYER WAS NOT INFORMED DURING THIS PERIOD
OF ANY SPECIFIC DEMANDS WHICH THESE TACTICS WERE DESIGNED TO ENFORCE
NOR WHAT CONCESSIONS IT COULD MAKE TO AVOID THEM.  FN6 

THIS PROCEDURE WAS PUBLICLY DESCRIBED BY THE UNION LEADERS AS A NEW
TECHNIQUE FOR BRINGING PRESSURE UPON THE EMPLOYER.  IT WAS, AND IS,
CANDIDLY ADMITTED THAT THESE TACTICS WERE INTENDED TO AND DID INTERFERE
WITH PRODUCTION AND PUT STRONG ECONOMIC PRESSURE ON THE EMPLOYER, WHO
WAS DISABLED THEREBY FROM MAKING ANY DEPENDABLE PRODUCTION PLANS OR
DELIVERY COMMITMENTS.  AND IT WAS SAID THAT "THIS CAN'T BE SAID FOR THE
STRIKE.  AFTER THE INITIAL SURPRISE OF THE WALKOUT, THE COMPANY KNOWS
WHAT IT HAS TO DO AND PLANS ACCORDINGLY."  IT WAS COMMENDED AS A
PROCEDURE WHICH WOULD AVOID HARDSHIPS THAT A STRIKE IMPOSES ON
EMPLOYEES AND WAS CONSIDERED "A BETTER WEAPON THAN A STRIKE." 

THE EMPLOYER DID NOT RESORT TO ANY PRIVATE DISCIPLINARY MEASURES SUCH
AS DISCHARGE OF THE EMPLOYEES; INSTEAD, IT SOUGHT A MUCH LESS DRASTIC
REMEDY BY PLEA TO THE APPROPRIATE PUBLIC AUTHORITY UNDER WISCONSIN LAW
FN7  TO INVESTIGATE AND ADJUDGE THE UNION'S CONDUCT UNDER THE LAW OF
THE STATE.  AFTER THE PRESCRIBED PROCEDURES, THE BOARD ORDERED THE
UNION TO CEASE AND DESIST FROM "(A) ENGAGING IN ANY CONCERTED EFFORTS
TO INTERFERE WITH PRODUCTION BY ARBITRARILY CALLING UNION MEETINGS AND
INDUCING WORK STOPPAGES DURING REGULARLY SCHEDULED WORKING HOURS; OR
ENGAGING IN ANY OTHER CONCERTED EFFORT TO INTERFERE WITH PRODUCTION OF
THE COMPLAINANT EXCEPT BY LEAVING THE PREMISES IN AN ORDERLY MANNER FOR
THE PURPOSE OF GOING ON STRIKE."  FN8 

TWO COURT PROCEEDINGS RESULTED FROM THE BOARD'S ORDER:  ONE BY THE
BOARD TO OBTAIN ENFORCEMENT AND THE OTHER BY THE UNION TO OBTAIN
REVIEW.  THEY ARE HERE CONSIDERED, AS THEY WERE BELOW, TOGETHER. 

THE SUPREME COURT OF WISCONSIN SUSTAINED THE BOARD'S ORDER BUT
SIGNIFICANTLY LIMITED THE EFFECT OF ITS OTHERWISE GENERAL
PROHIBITIONS.  IT HELD THAT WHAT THE ORDER DOES, AND ALL THAT IT DOES,
IS TO FORBID INDIVIDUAL DEFENDANTS AND MEMBERS OF THE UNION FROM
ENGAGING IN CONCERTED EFFORT TO INTERFERE WITH PRODUCTION BY DOING THE
ACTS INSTANTLY INVOLVED.  AS WE HAVE HERETOFORE POINTED OUT, THE
CONSTRUCTION PLACED UPON SUCH AN ORDER BY THE STATE SUPREME COURT IS
CONCLUSIVE ON US. ALLEN-BRADLEY LOCAL V. WISCONSIN EMPLOYMENT RELATIONS
BOARD, 315 U.S. 740.  OUR ONLY QUESTION IS, THEREFORE, WHETHER IT IS
BEYOND THE POWER OF THE STATE TO PROHIBIT THE PARTICULAR COURSE OF
CONDUCT DESCRIBED.  FN9 

THE UNION CONTENDS THAT THE STATUTE AS THUS APPLIED VIOLATES THE
THIRTEENTH AMENDMENT IN THAT IT IMPOSES A FORM OF COMPULSORY SERVICE OR
INVOLUNTARY SERVITUDE.  HOWEVER, NOTHING IN THE STATUTE OR THE ORDER
MAKES IT A CRIME TO ABANDON WORK INDIVIDUALLY (COMPARE POLLOCK V.
WILLIAMS, 322 U.S. 4) OR COLLECTIVELY.  NOR DOES EITHER UNDERTAKE TO
PROHIBIT OR RESTRICT ANY EMPLOYEE FROM LEAVING THE SERVICE OF THE
EMPLOYER, EITHER FOR REASON OR WITHOUT REASON, EITHER WITH OR WITHOUT
NOTICE.  THE FACTS AFFORD NO FOUNDATION FOR THE CONTENTION THAT ANY
ACTION OF THE STATE HAS THE PURPOSE OR EFFECT OF IMPOSING ANY FORM OF
INVOLUNTARY SERVITUDE. 

IT IS FURTHER CONTENDED THAT THE STATUTE AS APPLIED INVADES RIGHTS OF
FREE SPEECH AND PUBLIC ASSEMBLAGE GUARANTEED BY THE FOURTEENTH
AMENDMENT.  WE RECENTLY CONSIDERED A SIMILAR CONTENTION IN CONNECTION
WITH OTHER STATE ACTION CONCERNING LABOR RELATIONS.  LINCOLN FEDERAL
LABOR UNION V. NORTHWESTERN IRON & METAL CO., AND WHITAKER V. NORTH
CAROLINA, 335 U.S. 525, AND AMERICAN FEDERATION OF LABOR V. AMERICAN
SASH & DOOR CO., 335 U.S. 538.  FOR REASONS THERE STATED, THESE
CONTENTIONS ARE WITHOUT MERIT. 

NO SERIOUS QUESTION IS PRESENTED BY THE COMMERCE CLAUSE OF THE
CONSTITUTION STANDING ALONE.  IT NEVER HAS BEEN THOUGHT TO PREVENT THE
STATE LEGISLATURES FROM LIMITING "INDIVIDUAL AND GROUP RIGHTS OF
AGGRESSION AND DEFENSE" OR FROM SUBSTITUTING "PROCESSES OF JUSTICE FOR
THE MORE PRIMITIVE METHOD OF TRIAL BY COMBAT."  MR. JUSTICE BRANDEIS,
DISSENTING, DUPLEX CO. V. DEERING, 254 U.S. 443, 488; SEE ALSO DORCHY
V. KANSAS, 272 U.S. 306, 311, CITED WITH APPROVAL, THORNHILL V.
ALABAMA, 310 U.S. 88, 103; AND SEE HOTEL & RESTAURANT EMPLOYEES' LOCAL
V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 315 U.S. 437. 

THE SUBSTANTIAL ISSUE IS WHETHER CONGRESS HAS PROTECTED THE UNION
CONDUCT WHICH THE STATE HAS FORBIDDEN, AND HENCE THE STATE LEGISLATION
MUST YIELD.  WHEN THE ORDER OF THE STATE BOARD AND THE DECISION OF THE
STATE SUPREME COURT WERE MADE, THE NATIONAL LABOR RELATIONS ACT, 49
STAT. 449, 29 U.S.C. SECS. 151-166, WAS IN EFFECT AND QUESTIONS OF
CONFLICT BETWEEN STATE AND FEDERAL LAW WERE RAISED AND DECIDED WITH
REFERENCE TO IT.  HOWEVER, THE ORDER IMPOSES A CONTINUING RESTRAINT
WHICH IT IS CONTENDED NOW CONFLICTS WITH THE LABOR MANAGEMENT RELATIONS
ACT OF 1947, 61 STAT. 136, 29 U.S.C. SECS. 141-197, WHICH AMENDED THE
EARLIER STATUTE.  WE THEREFORE CONSIDER THE STATE ACTION IN RELATION TO
BOTH FEDERAL ACTS. 

CONGRESS HAS NOT SEEN FIT IN EITHER OF THESE ACTS TO DECLARE EITHER A
GENERAL POLICY OR TO STATE SPECIFIC RULES AS TO THEIR EFFECTS ON STATE
REGULATION OF VARIOUS PHASES OF LABOR RELATIONS OVER WHICH THE SEVERAL
STATES TRADITIONALLY HAVE EXERCISED CONTROL.  CF. SECURITIES ACT OF
1933, SEC. 18, 48 STAT. 74, 85, 15 U.S.C. SEC. 77R; SECURITIES EXCHANGE
ACT OF 1934, SEC. 28, 48 STAT. 881, 903, 15 U.S.C. SEC. 78BB; UNITED
STATES WAREHOUSE ACT, BEFORE AND AFTER 1931 AMENDMENT, 39 STAT. 486,
490, 46 STAT. 1465, 7 U.S.C. SEC. 269.  HOWEVER, AS TO COERCIVE TACTICS
IN LABOR CONTROVERSIES, WE HAVE SAID OF THE NATIONAL LABOR RELATIONS
ACT WHAT IS EQUALLY TRUE OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947,
THAT "CONGRESS DESIGNEDLY LEFT OPEN AN AREA FOR STATE CONTROL" AND THAT
THE "INTENTION OF CONGRESS TO EXCLUDE STATES FROM EXERCISING THEIR
POLICE POWER MUST BE CLEARLY MANIFESTED."  ALLEN-BRADLEY LOCAL V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, 315 U.S. 740, 750, 749.  WE
THEREFORE TURN TO ITS LEGISLATION FOR EVIDENCE THAT CONGRESS HAS
CLEARLY MANIFESTED AN EXCLUSION OF THE STATE POWER SOUGHT TO BE
EXERCISED IN THIS CASE. 

CONGRESS MADE IN THE NATIONAL LABOR RELATIONS ACT NO EXPRESS
DELEGATION OF POWER TO THE BOARD TO PERMIT OR FORBID THIS PARTICULAR
UNION CONDUCT, FROM WHICH AN EXCLUSION OF STATE POWER COULD BE
IMPLIED.  THE LABOR MANAGEMENT RELATIONS ACT DECLARED IT TO BE AN
UNFAIR LABOR PRACTICE FOR A UNION TO INDUCE OR ENGAGE IN A STRIKE OR
CONCERTED REFUSAL TO WORK WHERE AN OBJECT THEREOF IS ANY OF CERTAIN
ENUMERATED ONES.  SEC. 8(B)(4), 61 STAT. 140, 141; 29 U.S.C. SEC.
158(B)(4).  NEVERTHELESS THE CONDUCT HERE DESCRIBED IS NOT FORBIDDEN BY
THIS ACT AND NO PROCEEDING IS AUTHORIZED BY WHICH THE FEDERAL BOARD MAY
DEAL WITH IT IN ANY MANNER.  WHILE THE FEDERAL BOARD IS EMPOWERED TO
FORBID A STRIKE, WHEN AND BECAUSE ITS PURPOSE IS ONE THAT THE FEDERAL
ACT MADE ILLEGAL, IT HAS BEEN GIVEN NO POWER TO FORBID ONE BECAUSE ITS
METHOD IS ILLEGAL - EVEN IF THE ILLEGALITY WERE TO CONSIST OF ACTUAL OR
THREATENED VIOLENCE TO PERSONS OR DESTRUCTION OF PROPERTY.  POLICING OF
SUCH CONDUCT IS LEFT WHOLLY TO THE STATES.  IN THIS CASE THERE WAS ALSO
EVIDENCE OF CONSIDERABLE INJURY TO PROPERTY AND INTIMIDATION OF OTHER
EMPLOYEES BY THREATS AND NO ONE QUESTIONS THE STATE'S POWER TO POLICE
COERCION BY THOSE METHODS.  FN10 

IT SEEMS TO US CLEAR THAT THIS CASE FALLS WITHIN THE RULE ANNOUNCED
IN ALLEN-BRADLEY  FN11  THAT THE STATE MAY POLICE THESE STRIKE
ACTIVITIES AS IT COULD POLICE THE STRIKE ACTIVITIES THERE, BECAUSE
"CONGRESS HAS NOT MADE SUCH EMPLOYEE AND UNION CONDUCT AS IS INVOLVED
IN THIS CASE SUBJECT TO REGULATION BY THE FEDERAL BOARD."  THERE IS NO
EXISTING OR POSSIBLE CONFLICT OR OVERLAPPING BETWEEN THE AUTHORITY OF
THE FEDERAL AND STATE BOARDS, BECAUSE THE FEDERAL BOARD HAS NO
AUTHORITY EITHER TO INVESTIGATE, APPROVE OR FORBID THE UNION CONDUCT IN
QUESTION.  THIS CONDUCT IS GOVERNABLE BY THE STATE OR IT IS ENTIRELY
UNGOVERNED. 

THIS CASE IS NOT ANALOGOUS TO BETHLEHEM STEEL CO. V. NEW YORK STATE
LABOR RELATIONS BOARD, 330 U.S. 767, ON WHICH PETITIONERS RELY.  THERE
THE STATE BOARD UNDERTOOK TO DETERMINE THE BARGAINING UNIT IN AN
INDUSTRY, AN IDENTICAL QUESTION WHICH THE FEDERAL BOARD WAS AUTHORIZED
TO DETERMINE, AND THE TWO HAD DELIBERATELY LAID DOWN CONTRARY POLICIES
TO GOVERN DECISIONS OF THIS SAME MATTER.  IN THAT CASE, OF COURSE, THE
FEDERAL POLICY WAS NECESSARILY GIVEN EFFECT AS THE SUPREME LAW OF THE
LAND.  SEE ALSO LA CROSSE TELEPHONE CORPORATION V. WISCONSIN EMPLOYMENT
RELATIONS BOARD, ANTE, P. 18. 

BUT IT IS CLAIMED THAT THE CONGRESSIONAL LABOR LEGISLATION CONFERS
UPON OR RECOGNIZES AND DECLARES IN UNIONS AND EMPLOYEES CERTAIN RIGHTS,
PRIVILEGES OR IMMUNITIES IN CONNECTION WITH STRIKES AND CONCERTED
ACTIVITIES, AND THAT THESE ARE DENIED BY THE STATE'S PROHIBITION AS
LAID DOWN IN THIS CASE.  IT IS ELEMENTARY THAT WHAT CONGRESS
CONSTITUTIONALLY HAS GIVEN, THE STATE MAY NOT CONSTITUTIONALLY TAKE
AWAY.  HILL V. FLORIDA, 325 U.S. 538. 

THE ARGUMENT IS THAT TWO PROVISIONS, FOUND IN SECS. 7 AND 13 OF THE
NATIONAL LABOR RELATIONS ACT, NOT RELEVANTLY CHANGED BY THE LABOR
MANAGEMENT RELATIONS ACT OF 1947, GRANT TO THE UNION AND ITS MEMBERS
THE RIGHT TO PUT PRESSURE UPON THE EMPLOYER BY THE RECURRENT AND
UNANNOUNCED STOPPAGE OF WORK.  BOTH ACTS PROVIDE THAT "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 CONCERTED ACTIVITIES, FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION."  FN12
BECAUSE THE ACTS FORBIDDEN BY THE WISCONSIN JUDGMENT ARE CONCERTED
ACTIVITIES AND HAD A PURPOSE TO ASSIST LABOR ORGANIZATIONS IN
COLLECTIVE BARGAINING, IT IS SAID TO FOLLOW THAT THEY ARE FEDERALLY
AUTHORIZED AND THEREBY IMMUNIZED FROM STATE CONTROL. 

IT IS URGED HERE THAT WE ARE BOUND TO HOLD THESE ACTIVITIES PROTECTED
BY SEC. 7 BECAUSE THAT HAS BECOME THE SETTLED INTERPRETATION OF THE ACT
BY THE BOARD CHARGED WITH ITS ADMINISTRATION.  THIS CONTENTION IS BASED
ON DECISIONS BY THE BOARD IN AMERICAN MFG. CONCERN, 7 N.L.R.B. 753;
HARNISCHFEGER CORP., 9 N.L.R.B., 676; THE GOOD COAL CO., 12 N.L.R.B.
136; ARMOUR & CO., 25 N.L.R.B. 989; CUDAHY PACKING CO., 29 N.L.R.B.
837; AND MT. CLEMENS POTTERY COMPANY, 46 N.L.R.B. 714.  WE DO NOT THINK
IT CAN FAIRLY BE SAID THAT EVEN THE CUMULATIVE EFFECT OF THOSE CASES
AMOUNTS TO A FIXED BOARD INTERPRETATION THAT ALL WORK STOPPAGES ARE
FEDERALLY PROTECTED CONCERTED ACTIVITIES.  IN THOSE CASES, BUT IN A
CONTEXT OF ANTIUNION ANIMUS ON THE EMPLOYER'S PART, THE BOARD CONDEMNED
AS UNFAIR LABOR PRACTICES SUMMARY DISCHARGES ATTEMPTED IN RETALIATION
FOR ISOLATED WORK STOPPAGES REFLECTING TEMPORARY REBELLION OVER RULES
OR CONDITIONS OF WORK.  THE DRASTIC REMEDY OF DISCHARGE, SO OUTWEIGHING
ANY POSSIBLE DAMAGE IN THOSE CASES TO THE EMPLOYER AND SO TAINTED BY
ANTIUNION MOTIVES, LED TO THE BOARD'S CONCLUSION OF UNFAIR LABOR
PRACTICES PROSCRIBED BY THE ACT.  THE BOARD, HOWEVER, MADE IT CLEAR IN
THE HARNISCHFEGER AND ARMOUR CASES THAT SUCH A CONCLUSION DOES NOT
NECESSARILY FOLLOW A FINDING THAT THE EMPLOYEES' ACTIVITIES WERE
CONCERTED: 

"  ...  SECTION 7 OF THE ACT EXPRESSLY GUARANTEES EMPLOYEES THE RIGHT
TO ENGAGE IN CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION.  WE DO NOT INTERPRET THIS
TO MEAN THAT IT IS UNLAWFUL FOR AN EMPLOYER TO DISCHARGE AN EMPLOYEE
FOR ANY ACTIVITY SANCTIONED BY A UNION OR OTHERWISE IN THE NATURE OF
COLLECTIVE ACTIVITY.  THE QUESTION BEFORE US IS, WE THINK, WHETHER THIS
PARTICULAR ACTIVITY WAS SO INDEFENSIBLE, UNDER THE CIRCUMSTANCES, AS TO
WARRANT THE RESPONDENT, UNDER THE ACT, IN DISCHARGING THE STEWARDS FOR
THIS TYPE OF UNION ACTIVITY.  WE DO NOT THINK IT WAS."  FN13 

IN VIEW OF THAT STATEMENT, THE FACTS OF THE PRESENT CASE DO NOT BRING
IT WITHIN THE PROTECTION OF THE ACT AS ADMINISTERED BY THE BOARD.  HERE
THE EMPLOYER HAS RESORTED TO NO RETALIATORY MEASURES AND ITS MOTIVE IN
ASKING HELP FROM THE STATE IS NOT EVEN ALLEGED TO BE ANTIUNION BUT
MERELY A DESIRE TO KEEP ITS PLANT IN OPERATION.  THE REMEDY SOUGHT
AGAINST REPEATED DISRUPTION OF PRODUCTION IS NOT SUMMARY DISMISSAL BUT
INVOCATION OF A STATUTORY PROCEDURE MADE AVAILABLE BY THE STATE FOR THE
ADJUDICATION AND RESOLUTION OF SUCH DIFFICULTIES.  CONSEQUENTLY, WE DO
NOT FIND ANY FIXED BOARD POLICY TO APPLY THE ACT TO SUCH FACTS AS WE
HAVE HERE.  THE QUOTED STATEMENT FROM THE BOARD'S TWO OPINIONS
INDICATES LACK OF BELIEF THAT IT WAS CREATING ANY SUCH RULE. 

HOWEVER, IN NO EVENT COULD THE BOARD ADOPT SUCH A BINDING PRACTICE AS
TO THE SCOPE OF SEC. 7 IN THE LIGHT OF THE CONSTRUCTION, WITH WHICH WE
AGREE, GIVEN TO SEC. 7 BY THE COURTS OF APPEALS, AUTHORIZED TO REVIEW
BOARD ORDERS.  IN SIMILAR CASES THEY HAVE DENIED COMPARABLE WORK
STOPPAGES THE PROTECTION OF THAT SECTION.  C.G. CONN, LTD. V. LABOR
BOARD, 108 F.2D 390; LABOR BOARD V. CONDENSER CORP., 128 F.2D 67; HOME
BENEFICIAL LIFE INS. CO. V. LABOR BOARD, 159 F.2D 280; AND SEE LABOR
BOARD V. DRAPER CORP., 145 F.2D 199; LABOR BOARD V. INDIANA DESK CO.,
149 F.2D 987.  TO HOLD THAT THE ALLEGED FIXED BOARD INTERPRETATION HAS
IRREVOCABLY LABELED ALL CONCERTED ACTIVITIES "PROTECTED" WOULD BE IN
THE TEETH OF THE BOARD'S OWN LANGUAGE AND WOULD DENY ANY EFFECT TO THE
COURTS OF APPEALS' DECISIONS.  THE LATTER DECISIONS AND OUR OWN, LABOR
BOARD V. FANSTEEL CORP., 306 U.S. 240; SOUTHERN S.S. CO. V. LABOR
BOARD, 316 U.S. 31; LABOR BOARD V. SANDS MFG. CO., 306 U.S. 332; ALLEN
BRADLEY LOCAL V. WISCONSIN EMPLOYMENT RELATIONS BOARD, 315 U.S. 740;
AND SEE HOTEL & RESTAURANT EMPLOYEES' LOCAL V. WISCONSIN EMPLOYMENT
RELATIONS BOARD, 315 U.S. 437, CLEARLY INTERDICT ANY RULE BY THE BOARD
THAT EVERY TYPE OF CONCERTED ACTIVITY IS BEYOND THE REACH OF THE
STATES' ADJUDICATORY MACHINERY.  THE BARE LANGUAGE OF SEC. 7 CANNOT BE
CONSTRUED TO IMMUNIZE THE CONDUCT FORBIDDEN BY THE JUDGMENT BELOW AND
THEREFORE THE INJUNCTION AS CONSTRUED BY THE WISCONSIN SUPREME COURT
DOES NOT CONFLICT WITH SEC. 7 OF THE FEDERAL ACT. 

IN THE LIGHT OF LABOR MOVEMENT HISTORY, THE PURPOSE OF THE QUOTED
PROVISION OF THE STATUTE BECOMES CLEAR.  THE MOST EFFECTIVE LEGAL
WEAPON AGAINST THE STRUGGLING LABOR UNION WAS THE DOCTRINE THAT
CONCERTED ACTIVITIES WERE CONSPIRACIES, AND FOR THAT REASON ILLEGAL. 
WEAPON AWAY FROM THE EMPLOYER IN EMPLOYMENT RELATIONS WHICH AFFECT
INTERSTATE COMMERCE.  NO LONGER CAN ANY STATE, AS TO RELATIONS WITHIN
REACH OF THE ACT, TREAT OTHERWISE LAWFUL ACTIVITIES TO AID UNIONIZATION
AS AN ILLEGAL CONSPIRACY MERELY BECAUSE THEY ARE UNDERTAKEN BY MANY
PERSONS ACTING IN CONCERT.  FN14  BUT BECAUSE LEGAL CONDUCT MAY NOT BE
MADE ILLEGAL BY CONCERT, IT DOES NOT MEAN THAT OTHERWISE ILLEGAL ACTION
IS MADE LEGAL BY CONCERT. 

RELIANCE ALSO IS PLACED UPON SEC. 13 OF THE NATIONAL LABOR RELATIONS
ACT, WHICH PROVIDED, "NOTHING IN THIS ACT SHALL BE CONSTRUED SO AS TO
INTERFERE WITH OR IMPEDE OR DIMINISH IN ANY WAY THE RIGHT TO STRIKE." 
49 STAT. 449, 457.  THE 1947 AMENDMENT CARRIES THE SAME PROVISION BUT
THAT ACT INCLUDES A DEFINITION.  SECTION 501(2) SAYS THAT WHEN USED IN
THE ACT "THE TERM 'STRIKE' INCLUDES ANY STRIKE OR OTHER CONCERTED
STOPPAGE OF WORK BY EMPLOYEES (INCLUDING A STOPPAGE BY REASON OF THE
EXPIRATION OF A COLLECTIVE-BARGAINING AGREEMENT) AND ANY CONCERTED SLOW
DOWN OR OTHER CONCERTED INTERRUPTION OF OPERATIONS BY EMPLOYEES."  61
STAT. 161. 

THIS PROVISION, AS CARRIED OVER INTO THE LABOR MANAGEMENT RELATIONS
ACT, DOES NOT PURPORT TO CREATE, ESTABLISH OR DEFINE THE RIGHT TO
STRIKE.  ON ITS FACE IT IS NARROWER IN SCOPE THAN SEC. 7 - THE LATTER
WOULD BE OF LITTLE SIGNIFICANCE IF "STRIKE" IS A BROADER TERM THAN
"CONCERTED ACTIVITY."  UNLESS WE READ INTO SEC. 13 WORDS WHICH CONGRESS
OMITTED AND A SENSE WHICH CONGRESS SHOWED NO INTENTION OF INCLUDING,
ALL THAT THIS PROVISION DOES IS TO DECLARE A RULE OF INTERPRETATION FOR
THE ACT ITSELF WHICH WOULD PREVENT ANY USE OF WHAT ORIGINALLY WAS A
NOVEL PIECE OF LEGISLATION TO QUALIFY OR IMPEDE WHATEVER RIGHT TO
STRIKE EXISTS UNDER OTHER LAWS.  IT DID NOT PURPORT TO MODIFY THE BODY
OF LAW AS TO THE LEGALITY OF STRIKES AS IT THEN EXISTED.  THIS COURT
LESS THAN A DECADE EARLIER HAD STATED THAT LAW TO BE THAT THE STATE
CONSTITUTIONALLY COULD PROHIBIT STRIKES AND MAKE A VIOLATION CRIMINAL. 
IT HAD UNANIMOUSLY ADOPTED THE LANGUAGE OF MR. JUSTICE BRANDEIS THAT
"NEITHER THE COMMON LAW, NOR THE FOURTEENTH AMENDMENT, CONFERS THE
ABSOLUTE RIGHT TO STRIKE."  DORCHY V. KANSAS, 272 U.S. 306, 311. 
DISSENTING VIEWS MOST FAVORABLE TO LABOR IN OTHER CASES HAD CONCEDED
THE RIGHT OF THE STATE LEGISLATURE TO MARK THE LIMITS OF TOLERABLE
INDUSTRIAL CONFLICT IN THE PUBLIC INTEREST.  DUPLEX CO. V. DEERING, 254
U.S. 443, 488.  THIS COURT HAS ADHERED TO THAT VIEW.  THORNHILL V.
ALABAMA, 310 U.S. 88, 103.  THE RIGHT TO STRIKE, BECAUSE OF ITS MORE
SERIOUS IMPACT UPON THE PUBLIC INTEREST, IS MORE VULNERABLE TO
REGULATION THAN THE RIGHT TO ORGANIZE AND SELECT REPRESENTATIVES FOR
LAWFUL PURPOSES OF COLLECTIVE BARGAINING WHICH THIS COURT HAS
CHARACTERIZED AS A "FUNDAMENTAL RIGHT" AND WHICH, AS THE COURT HAS
POINTED OUT, WAS RECOGNIZED AS SUCH IN ITS DECISIONS LONG BEFORE IT WAS
GIVEN PROTECTION BY THE NATIONAL LABOR RELATIONS ACT.  LABOR BOARD V.
JONES & LAUGHLIN, 301 U.S. 1, 33. 

AS TO THE RIGHT TO STRIKE, HOWEVER, THIS COURT, QUOTING THE LANGUAGE
OF SEC. 13, HAS SAID, 306 U.S. 240, 256, "BUT THIS RECOGNITION OF 'THE
RIGHT TO STRIKE' PLAINLY CONTEMPLATES A LAWFUL STRIKE,  - THE EXERCISE
OF THE UNQUESTIONED RIGHT TO QUIT WORK," AND IT DID NOT OPERATE TO
LEGALIZE THE SIT-DOWN STRIKE, WHICH STATE LAW MADE ILLEGAL AND STATE
AUTHORITIES PUNISHED.  LABOR BOARD V. FANSTEEL CORP., 306 U.S. 240. 
NOR, FOR EXAMPLE, DID IT MAKE LEGAL A STRIKE THAT RAN AFOUL OF FEDERAL
LAW, SOUTHERN S.S. CO. V. LABOR BOARD, 316 U.S. 31; NOR ONE IN
VIOLATION OF A CONTRACT MADE PURSUANT THERETO, LABOR BOARD V. SANDS
MFG. CO., 306 U.S. 332; NOR ONE CREATING A NATIONAL EMERGENCY, UNITED
STATES V. UNITED MINE WORKERS, 330 U.S. 258. 

THAT CONGRESS HAS CONCURRED IN THE VIEW THAT NEITHER SEC. 7 NOR SEC.
13 CONFERS ABSOLUTE RIGHT TO ENGAGE IN EVERY KIND OF STRIKE OR OTHER
CONCERTED ACTIVITY DOES NOT REST UPON MERE INFERENCE; INDEED THE RECORD
INDICATES THAT, HAD THE COURTS NOT MADE THESE INTERPRETATIONS, THE
CONGRESS WOULD HAVE GONE AS FAR OR FARTHER IN THE DIRECTION OF LIMITING
THE RIGHT TO ENGAGE IN CONCERTED ACTIVITIES INCLUDING THE RIGHT TO
STRIKE.  THE HOUSE COMMITTEE OF CONFERENCE HANDLING THE BILL WHICH
BECAME THE LABOR MANAGEMENT RELATIONS ACT, ON JUNE 3, 1947 ADVISED THE
HOUSE TO RECEDE FROM ITS DISAGREEMENT WITH THE SENATE AND TO ACCEPT THE
PRESENT TEXT UPON GROUNDS THERE STATED UNDER THE RUBRIC "RIGHTS OF
EMPLOYEES."  H.R. REP. NO. 510, 80TH CONG., 1ST SESS., P. 38.  THE
COMMITTEE POINTED OUT THAT "THE COURTS HAVE FIRMLY ESTABLISHED THE RULE
THAT UNDER THE EXISTING PROVISIONS OF SECTION 7 OF THE NATIONAL LABOR
RELATIONS ACT, EMPLOYEES ARE NOT GIVEN ANY RIGHT TO ENGAGE IN UNLAWFUL
OR OTHER IMPROPER CONDUCT.  IN ITS MOST RECENT DECISIONS THE BOARD HAS
BEEN CONSISTENTLY APPLYING THE PRINCIPLES ESTABLISHED BY THE COURTS. 
...  "  AND "IT WAS BELIEVED THAT THE SPECIFIC PROVISIONS IN THE HOUSE
BILL EXCEPTING UNFAIR LABOR PRACTICES, UNLAWFUL CONCERTED ACTIVITIES,
AND VIOLATION OF COLLECTIVE BARGAINING AGREEMENTS FROM THE PROTECTION
OF SECTION 7 WERE UNNECESSARY.  MOREOVER, THERE WAS REAL CONCERN THAT
THE INCLUSION OF SUCH A PROVISION MIGHT HAVE A LIMITING EFFECT AND MAKE
IMPROPER CONDUCT NOT SPECIFICALLY MENTIONED SUBJECT TO THE PROTECTION
OF THE ACT."  THE FULL TEXT OF THIS SECTION OF THE REPORT IS PRINTED IN
THE MARGIN.  FN15 

THUS, THE OBVIOUS PURPOSE OF THE LABOR MANAGEMENT AMENDMENTS WAS NOT
TO GRANT A DISPENSATION FOR THE STRIKE BUT TO OUTLAW STRIKES WHEN
UNDERTAKEN TO ENFORCE WHAT THE ACT CALLS UNFAIR LABOR PRACTICES, AN END
WHICH WOULD BE DEFEATED IF WE SUSTAIN THE UNION'S CLAIM IN THIS
RESPECT.  BY SEC. 8(B)(4), STRIKES TO ATTAIN NAMED OBJECTIVES ARE MADE
UNFAIR LABOR PRACTICES; AND BY SEC. 10(A),  FN16  THE BOARD IS
AUTHORIZED TO PREVENT THEM.  THE DEFINITION PLAINLY ENOUGH WAS DESIGNED
TO ENABLE THE BOARD TO ORDER A UNION TO CEASE AND DESIST FROM A STRIKE
SO MADE ILLEGAL, WHETHER IT CONSISTED OF A STRIKE IN THE USUAL OR
CONVENTIONAL MEANING OR CONSISTED OF SOME OF THE OTHER PRACTICES
MENTIONED IN THE DEFINITION.  HOWEVER, IF WE ADD THE DEFINITION TO SEC.
13, IT DOES NOT CHANGE THE EFFECT OF THE ACT ON STATE POWERS.  IT STILL
GIVES THE FEDERAL BOARD NO AUTHORITY TO PROHIBIT OR TO SUPERVISE THE
ACTIVITY WHICH THE STATE BOARD HAS HERE STOPPED NOR TO ENTERTAIN ANY
PROCEEDING CONCERNING IT, BECAUSE IT IS THE OBJECTIVES ONLY AND NOT THE
TACTICS OF A STRIKE WHICH BRING IT WITHIN THE POWER OF THE FEDERAL
BOARD.  AND SEC. 13 PLUS THE DEFINITION ONLY PROVIDES THAT "NOTHING IN
THIS ACT  ...  SHALL BE CONSTRUED SO AS EITHER TO INTERFERE WITH OR
IMPEDE" THE RIGHT TO ENGAGE IN THESE ACTIVITIES.  WHAT OTHER ACTS OR
OTHER STATE LAWS MIGHT DO IS NOT ATTEMPTED TO BE REGULATED BY THIS
FEDERAL POWER TO CONTROL THE ACTIVITIES IN QUESTION NOR ANY IMMUNITY
FROM THE EXERCISE OF STATE POWER IN REFERENCE TO THEM, IT CAN HAVE NO
EFFECT ON THE RIGHT OF THE STATE TO RESORT TO ITS OWN RESERVED POWER
OVER COERCIVE CONDUCT AS IT HAS DONE IN THIS INSTANCE. 

IF WE WERE TO READ SEC. 13 AS WE ARE URGED TO DO, TO MAKE THE STRIKE
AN ABSOLUTE RIGHT AND THE DEFINITION TO EXTEND THE RIGHT TO ALL OTHER
VARIATIONS OF THE STRIKE,  FN17  THE EFFECT WOULD BE TO LEGALIZE BEYOND
THE POWER OF ANY STATE OR FEDERAL AUTHORITIES TO CONTROL NOT ONLY THE
INTERMITTENT STOPPAGES SUCH AS WE HAVE HERE BUT ALSO THE SLOWDOWN AND
PERHAPS THE SIT-DOWN STRIKE AS WELL.  CF. ALLEN-BRADLEY LOCAL V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, 315 U.S. 740, 751.  AND THIS IS
NOT ALL; THE MANAGEMENT ALSO WOULD BE DISABLED FROM ANY KIND OF SELF
HELP TO COPE WITH THESE COERCIVE TACTICS OF THE UNION EXCEPT TO SUBMIT
TO ITS UNDECLARED DEMANDS.  TO DISMISS OR DISCIPLINE EMPLOYEES FOR
EXERCISING A RIGHT GIVEN THEM UNDER THE ACT OR TO INTERFERE WITH THEM
OR THE UNION IN PURSUING IT IS MADE AN UNFAIR LABOR PRACTICE AND IF THE
RIGHTS HERE ASSERTED ARE RIGHTS CONFERRED BY THE LABOR MANAGEMENT
RELATIONS ACT, IT IS HARD TO SEE HOW THE MANAGEMENT CAN TAKE ANY STEPS
TO RESIST OR COMBAT THEM WITHOUT INCURRING THE SANCTIONS OF THE ACT. 
IT IS CERTAIN THAT SUCH A RESULT WOULD BE INCONSISTENT WITH THE WHOLE
PURPOSE DISCLOSED BY THE LABOR MANAGEMENT RELATIONS ACT AMENDMENTS TO
THE NATIONAL LABOR RELATIONS ACT.  NOR DO WE THINK SUCH IS THE RESULT
OF ANY FAIR INTERPRETATION OF THE TEXT OF THE ACT. 

WE THINK THAT THIS RECURRENT OR INTERMITTENT UNANNOUNCED STOPPAGE OF
WORK TO WIN UNSTATED ENDS WAS NEITHER FORBIDDEN BY FEDERAL STATUTE NOR
WAS IT LEGALIZED AND APPROVED THEREBY.  SUCH BEING THE CASE, THE STATE
POLICE POWER WAS NOT SUPERSEDED BY CONGRESSIONAL ACT OVER A SUBJECT
NORMALLY WITHIN ITS EXCLUSIVE POWER AND REACHABLE BY FEDERAL REGULATION
ONLY BECAUSE OF ITS EFFECTS ON THAT INTERSTATE COMMERCE WHICH CONGRESS
MAY REGULATE.  LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1; BETHLEHEM
STEEL CO. V. BOARD, 330 U.S. 767. 

WE FIND NO BASIS FOR DENYING TO WISCONSIN THE POWER, IN GOVERNING HER
INTERNAL AFFAIRS, TO REGULATE A COURSE OF CONDUCT NEITHER MADE A RIGHT
UNDER FEDERAL LAW NOR A VIOLATION OF IT AND WHICH HAS THE COERCIVE
EFFECT OBVIOUS IN THIS DEVICE. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  THE WISCONSIN EMPLOYMENT PEACE ACT PROVIDES IN PART AS FOLLOWS: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYE INDIVIDUALLY OR
IN CONCERT WITH OTHERS: (A) TO COERCE OR INTIMIDATE AN EMPLOYE IN THE
ENJOYMENT OF HIS LEGAL RIGHTS, INCLUDING THOSE GUARANTEED IN SECTION
111.04, OR TO INTIMIDATE HIS FAMILY, PICKET HIS DOMICILE, OR INJURE THE
PERSON OR PROPERTY OF SUCH EMPLOYE OR HIS FAMILY.  ...  (E) TO CO
OPERATE IN ENGAGING IN, PROMOTING OR INDUCING PICKETING (NOT
CONSTITUTING AN EXERCISE OF CONSTITUTIONALLY GUARANTEED FREE SPEECH),
BOYCOTTING OR ANY OTHER OVERT CONCOMITANT OF A STRIKE UNLESS A MAJORITY
IN A COLLECTIVE BARGAINING UNIT OF THE EMPLOYES OF AN EMPLOYER AGAINST
WHOM SUCH ACTS ARE PRIMARILY DIRECTED HAVE VOTED BY SECRET BALLOT TO
CALL A STRIKE.  ...  (H) TO TAKE UNAUTHORIZED POSSESSION OF PROPERTY OF
THE EMPLOYER OR TO ENGAGE IN ANY CONCERTED EFFORT TO INTERFERE WITH
PRODUCTION EXCEPT BY LEAVING THE PREMISES IN AN ORDERLY MANNER FOR THE
PURPOSE OF GOING ON STRIKE."  WIS. STAT. (1947) C. 111, SEC.
111.06(2).    FN2  U.S. CONST., ART. 1, SEC. 8, CL. 3, GIVING THE
CONGRESS POWER "TO REGULATE COMMERCE  ... AMONG THE SEVERAL STATES  ...
" 

FN3  49 STAT. 449; 29 U.S.C. SECS. 151-166. 

FN4  61 STAT. 136; 29 U.S.C. SECS. 141-197.    FN5  250 WIS. 550, 27
N.W.2D 875.  THE STATE SUPREME COURT CONCLUDED THAT PETITIONERS WERE
GUILTY OF UNFAIR LABOR PRACTICES AS DEFINED IN SECS. 111.06(2)(A), (E)
AND (H) OF THE WISCONSIN STATUTES.  THOSE PROVISIONS ARE SET OUT IN
NOTE 1. 

FN6  PETITIONERS SUGGEST THAT THE STOPPAGES WERE INITIATED TO FORCE
THE EMPLOYER TO COMPLY WITH A WAR LABOR BOARD DIRECTIVE.  HOWEVER, THE
STOPPAGES BEGAN SEVERAL WEEKS BEFORE THAT DIRECTIVE REACHED EITHER THE
UNION OR THE EMPLOYER.  BY THE LATTER DATE, THE NATIONAL BOARD HAD BEEN
ABOLISHED.  CONSEQUENTLY THE ISSUANCE OF THE DIRECTIVE WOULD NOT SEEM
TO THROW ANY LIGHT ON THE UNION'S MOTIVES OR TO HAVE ANY EFFECT ON THE
STATE BOARD'S JURISDICTION. 

FN7  THE EMPLOYMENT RELATIONS BOARD WAS CREATED BY THE 1939 ACT.  SEE
WIS. STAT. (1947) C. 111, SEC. 111.03.  THE BOARD'S JURISDICTION OVER
UNFAIR LABOR PRACTICES IS DELINEATED IN SEC. 111.07. 

FN8  THE BOARD ALSO ORDERED PETITIONERS TO CEASE AND DESIST FROM 

"(B) COERCING OR INTIMIDATING EMPLOYES BY THREATS OF VIOLENCE OR
OTHER PUNISHMENT TO ENGAGE IN ANY ACTIVITIES FOR THE PURPOSE OF
INTERFERING WITH PRODUCTION OR THAT WILL INTERFERE WITH THE LEGAL
RIGHTS OF THE EMPLOYES."  THIS PROVISION OF THE ORDER, BASED ON
EVIDENCE OF SOME VIOLENCE AND THREATS, IS NOT CHALLENGED HERE. 

FN9  IN THE CONSOLIDATED CASE BEFORE THE CIRCUIT COURT OF MILWAUKEE
COUNTY, THAT COURT DENIED ENFORCEMENT OF PARAGRAPH (A) OF THE BOARD'S
ORDER FORBIDDING THE WORK STOPPAGES, BUT UPHELD PARAGRAPH (B) ENJOINING
VIOLENCE AND THREATS.  SEE NOTE 8.  THE SUPREME COURT APPROVED THE
ORDER IN ITS ENTIRETY.  REVIEW OF THAT COURT'S ACTION IN UPHOLDING
PARAGRAPH (A) IS SOUGHT IN THESE PETITIONS BY THE UNION AND NINE OF ITS
OFFICERS, SEVEN OF WHOM ARE EMPLOYEES OF RESPONDENT CORPORATION, AND
ALL OF WHOM ARE MEMBERS OF THE UNION'S BARGAINING COMMITTEE. 

FN10  SEE NOTES 8 AND 9. 

FN11  ALLEN-BRADLEY LOCAL V. WISCONSIN EMPLOYMENT RELATIONS BOARD,
315 U.S. 740, 749. 

FN12  SEC. 7 OF NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 452.  THE
LABOR MANAGEMENT RELATIONS ACT OF 1947 ADDED A PROVISO THAT EMPLOYEES
ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL ACTIVITIES MENTIONED IN
THIS SECTION, EXCEPT TO THE EXTENT THAT THE RIGHT TO REFRAIN MIGHT
CONFLICT WITH AN AGREEMENT REQUIRING MEMBERSHIP IN A UNION AS A
CONDITION OF EMPLOYMENT AS AUTHORIZED BY THE ACT.  61 STAT. 140. 

FN13  9 N.L.R.B. 676, 686; 25 N.L.R.B. 989, 996. 

FN14  WITH RESPECT TO ACTIVITIES SUBJECT TO STATE CONTROL, SEC.
111.04 OF THE WISCONSIN STATUTES PROVIDES THAT EMPLOYEES SHALL HAVE THE
RIGHT OF SELF-ORGANIZATION, THE RIGHT TO FORM, JOIN AND ASSIST LABOR
ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR
OWN CHOOSING, AND TO ENGAGE IN LAWFUL, CONCERTED ACTIVITIES FOR THE
PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION. 
INTERFERE WITH, RESTRAIN OR COERCE HIS EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SEC. 111.04, AND LISTS OTHER UNFAIR LABOR
PRACTICES WHICH THE BOARD IS ALSO EMPOWERED TO PREVENT. 

FN15  "BOTH THE HOUSE BILL AND THE SENATE AMENDMENT IN AMENDING THE
NATIONAL LABOR RELATIONS ACT PRESERVED THE RIGHT UNDER SECTION 7 OF
THAT ACT OF EMPLOYEES TO SELF-ORGANIZATION, TO FORM, JOIN, OR ASSIST
ANY LABOR ORGANIZATION, AND 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.  THE HOUSE BILL, HOWEVER, MADE TWO CHANGES IN THAT
SET FORTH WERE NOT TO BE CONSIDERED AS INCLUDING THE RIGHT TO COMMIT OR
PARTICIPATE IN UNFAIR LABOR PRACTICES, UNLAWFUL CONCERTED ACTIVITIES,
OR VIOLATIONS OF COLLECTIVE BARGAINING CONTRACTS.  SECOND, IT WAS
SPECIFICALLY SET FORTH THAT EMPLOYEES WERE ALSO TO HAVE THE RIGHT TO
REFRAIN FROM SELF-ORGANIZATION, ETC., IF THEY CHOSE TO DO SO. 

"THE FIRST CHANGE IN SECTION 7 OF THE ACT MADE BY THE HOUSE BILL WAS
INSERTED BY REASON OF EARLY DECISIONS OF THE BOARD TO THE EFFECT THAT
THE LANGUAGE OF SECTION 7 PROTECTED CONCERTED ACTIVITIES REGARDLESS OF
THEIR NATURE OR OBJECTIVES.  AN OUTSTANDING DECISION OF THIS SORT WAS
THE ONE INVOLVING A 'SIT DOWN' STRIKE WHEREIN THE BOARD ORDERED THE
REINSTATEMENT OF EMPLOYEES WHO ENGAGED IN THIS UNLAWFUL ACTIVITY. 
LATER THE BOARD ORDERED THE REINSTATEMENT OF CERTAIN EMPLOYEES WHOSE
CONCERTED ACTIVITIES CONSTITUTED MUTINY.  IN BOTH OF THE ABOVE
INSTANCES, HOWEVER, THE DECISION OF THE BOARD WAS REVERSED BY THE
SUPREME COURT.  MORE RECENTLY, A DECISION OF THE BOARD ORDERING THE
REINSTATEMENT OF INDIVIDUALS WHO HAD ENGAGED IN MASS PICKETING WAS
REVERSED BY THE CIRCUIT COURT OF APPEALS (INDIANA DESK CO. V. N.L.R.B.,
149 FED.(2D) 987)(1944). 

"THUS THE COURTS HAVE FIRMLY ESTABLISHED THE RULE THAT UNDER THE
EXISTING PROVISIONS OF SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT,
EMPLOYEES ARE NOT GIVEN ANY RIGHT TO ENGAGE IN UNLAWFUL OR OTHER
IMPROPER CONDUCT.  IN ITS MOST RECENT DECISIONS THE BOARD HAS BEEN
CONSISTENTLY APPLYING THE PRINCIPLES ESTABLISHED BY THE COURTS.  FOR
EXAMPLE, IN THE AMERICAN NEWS COMPANY CASE (55 N.L.R.B. 1302)(1944) THE
BOARD HELD THAT EMPLOYEES HAD NO RIGHT WHICH WAS PROTECTED UNDER THE
ACT TO STRIKE TO COMPEL AN EMPLOYER TO VIOLATE THE WAGE STABILIZATION
LAWS.  AGAIN, IN THE SCULLIN STEEL CASE (65 N.L.R.B. 1294) AND IN THE
DYSON CASE (DECIDED FEBRUARY 7, 1947), THE BOARD HELD THAT STRIKES IN
VIOLATION OF COLLECTIVE BARGAINING CONTRACTS WERE NOT CONCERTED
ACTIVITIES PROTECTED BY THE ACT, AND REFUSED TO REINSTATE EMPLOYEES
DISCHARGED FOR ENGAGING IN SUCH ACTIVITIES.  IN THE SECOND THOMPSON
PRODUCTS CASE (DECIDED FEBRUARY 21, 1947) THE BOARD HELD THAT STRIKES
TO COMPEL THE EMPLOYER TO VIOLATE THE ACT AND RULINGS OF THE BOARD
THEREUNDER WERE NOT CONCERTED ACTIVITIES PROTECTED BY THE PROVISIONS OF
THE EFFECT OF OVERRULING SUCH DECISIONS OF THE BOARD AS THAT IN MATTER
OF BERKSHIRE KNITTING MILLS (46 N.L.R.B. 955(1943)), WHEREIN THE BOARD
ATTEMPTED TO DISTINGUISH BETWEEN WHAT IT CONSIDERED AS MAJOR CRIMES AND
MINOR CRIMES FOR THE PURPOSE OF DETERMINING WHAT EMPLOYEES WERE
ENTITLED TO REINSTATEMENT. 

"BY REASON OF THE FOREGOING, IT WAS BELIEVED THAT THE SPECIFIC
PROVISIONS IN THE HOUSE BILL EXCEPTING UNFAIR LABOR PRACTICES, UNLAWFUL
CONCERTED ACTIVITIES, AND VIOLATION OF COLLECTIVE BARGAINING AGREEMENTS
FROM THE PROTECTION OF SECTION 7 WERE UNNECESSARY.  MOREOVER, THERE WAS
REAL CONCERN THAT THE INCLUSION OF SUCH A PROVISION MIGHT HAVE A
LIMITING EFFECT AND MAKE IMPROPER CONDUCT NOT SPECIFICALLY MENTIONED
SUBJECT TO THE PROTECTION OF THE ACT. 

"IN ADDITION, OTHER PROVISIONS OF THE CONFERENCE AGREEMENT DEAL WITH
THIS PARTICULAR PROBLEM IN GENERAL TERMS.  FOR EXAMPLE, IN THE
DECLARATION OF POLICY TO THE AMENDED NATIONAL LABOR RELATIONS ACT
ADOPTED BY THE CONFERENCE COMMITTEE, IT IS STATED IN THE NEW PARAGRAPH
DEALING WITH IMPROPER PRACTICES OF LABOR ORGANIZATIONS, THEIR OFFICERS,
AND MEMBERS, THAT THE 'ELIMINATION OF SUCH PRACTICES IS A NECESSARY
CONDITION TO THE ASSURANCE OF THE RIGHTS HEREIN GUARANTEED.'  THIS IN
AND OF ITSELF DEMONSTRATES A CLEAR INTENTION THAT THESE UNDESIRABLE
CONCERTED ACTIVITIES ARE NOT TO HAVE ANY PROTECTION UNDER THE ACT, AND
TO THE EXTENT THAT THE BOARD IN THE PAST HAS ACCORDED PROTECTION TO
SUCH ACTIVITIES, THE CONFERENCE AGREEMENT MAKES SUCH PROTECTION NO
LONGER POSSIBLE.  FURTHERMORE, IN SECTION 10(C) OF THE AMENDED ACT, AS
PROPOSED IN THE CONFERENCE AGREEMENT, IT IS SPECIFICALLY PROVIDED THAT
NO ORDER OF THE BOARD SHALL REQUIRE THE REINSTATEMENT OF ANY INDIVIDUAL
OR THE PAYMENT TO HIM OF ANY BACK PAY IF SUCH INDIVIDUAL WAS SUSPENDED
OR DISCHARGED FOR CAUSE, AND THIS, OF COURSE, APPLIES WITH EQUAL FORCE
WHETHER OR NOT THE ACTS CONSTITUTING THE CAUSE FOR DISCHARGE WERE
COMMITTED IN CONNECTION WITH A CONCERTED ACTIVITY.  AGAIN, INASMUCH AS
AGREEMENT, REQUIRES THAT THE RULES OF EVIDENCE APPLICABLE IN THE
DISTRICT COURTS SHALL, SO FAR AS PRACTICABLE, BE FOLLOWED AND APPLIED
BY THE BOARD, PROOF OF ACTS OF UNLAWFUL CONDUCT CANNOT HEREAFTER BE
LIMITED TO PROOF OF CONFESSION OR CONVICTION THEREOF. 

"THE SECOND CHANGE MADE BY THE HOUSE BILL IN SECTION 7 OF THE ACT
(WHICH IS CARRIED INTO THE CONFERENCE AGREEMENT) ALSO HAS AN IMPORTANT
BEARING ON THE KINDS OF CONCERTED ACTIVITIES WHICH ARE PROTECTED BY
EMPLOYEES ARE ALSO TO HAVE THE RIGHT TO REFRAIN FROM JOINING IN
CONCERTED ACTIVITIES WITH THEIR FELLOW EMPLOYEES IF THEY CHOOSE TO DO
SO.  TAKEN IN CONJUNCTION WITH THE PROVISIONS OF SECTION 8(B)(1) OF THE
CONFERENCE AGREEMENT (WHICH WILL BE HEREAFTER DISCUSSED), WHEREIN IT IS
MADE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS TO
RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED IN
ACTIVITIES WHICH THE BOARD, PARTICULARLY IN ITS EARLY DAYS, REGARDED AS
PROTECTED BY THE ACT WILL NO LONGER BE TREATED AS HAVING THAT
PROTECTION, SINCE OBVIOUSLY PERSONS WHO ENGAGE IN OR SUPPORT UNFAIR
LABOR PRACTICES WILL NOT ENJOY IMMUNITY UNDER THE ACT." 

FN16  61 STAT. 136, 146, 29 U.S.C. SEC. 160(A). 

FN17  TO CALL THESE STOPPAGES A STRIKE WE WOULD HAVE TO IGNORE
PETITIONERS' OWN CONCEPTION OF THIS ACTIVITY.  AS WE HAVE SHOWN, THEY
ADOPTED THIS TECHNIQUE PRECISELY BECAUSE IT WAS BELIEVED TO BE "BETTER
THAN A STRIKE."  SEE TEXT, PP. 249-250. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING. 

THIS STRIKE WAS LEGAL UNDER THE WAGNER ACT IN 1945 AND 1946 AND ITS
LEGALITY WAS NOT AFFECTED BY THE LABOR MANAGEMENT RELATIONS ACT OF
1947.  I THINK, THEREFORE, THAT THE EFFORT OF WISCONSIN TO MAKE IT
UNLAWFUL MUST FAIL BECAUSE IT CONFLICTS WITH THE NATIONAL POLICY. 

ADMIT OF DOUBT OR AMBIGUITY: "NOTHING IN THIS ACT SHALL BE CONSTRUED SO
AS TO INTERFERE WITH OR IMPEDE OR DIMINISH IN ANY WAY THE RIGHT TO
STRIKE."  THE COURT HELD IN LABOR BOARD V. FANSTEEL CORP., 306 U.S.
240, 256, THAT BY THIS PROVISION CONGRESS "RECOGNIZED THE RIGHT TO
STRIKE,  - THAT THE EMPLOYEES COULD LAWFULLY CEASE WORK AT THEIR OWN
VOLITION BECAUSE OF THE FAILURE OF THE EMPLOYER TO MEET THEIR
DEMANDS."  THE CONGRESSIONAL POLICY OF PROTECTION OF STRIKES AS
ECONOMIC SANCTIONS IS NOW CONVERTED INTO A CONGRESSIONAL POLICY OF
HANDS-OFF. 

IF THE STATES CAN OUTLAW THIS STRIKE, I SEE NO REASON WHY THEY CANNOT
ADOPT REGULATIONS WHICH DETERMINE THE MANNER IN WHICH STRIKES MAY BE
CALLED IN THESE INTERSTATE INDUSTRIES.  CAN THEY IN PRACTICAL EFFECT
OUTLAW STRIKES BY REQUIRING A UNANIMOUS VOTE OF THE WORKERS IN ORDER TO
CALL ONE?  THE FEDERAL BOARD IS NOT AUTHORIZED, IT IS SAID, TO FORBID
OR CONTROL STRIKES BECAUSE OF THE METHOD BY WHICH THEY ARE CALLED OR
THE WAY IN WHICH THEY ARE UTILIZED.  IF THAT IS THE CRITERION, AS THE
COURT DECLARES, THEN THE MANNER OF CALLING OF STRIKES IS LEFT WHOLLY TO
THE STATES.  THE RIGHT TO STRIKE, WHICH CONGRESS HAS SANCTIONED, CAN IN
THAT WAY BE UNDERMINED BY STATE ACTION.  THE FEDERAL POLICY THUS
BECOMES A FORMULA OF EMPTY WORDS. 

THAT CONCLUSION IS MADE ALL THE MORE SURPRISING WHEN SEC. 13 OF THE
ACT IS READ IN CONJUNCTION WITH SEC. 7 WHICH PROVIDES, "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 CONCERTED ACTIVITIES, FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION."  FN1  SECTION
7 READ IN CONJUNCTION WITH SEC. 13 MUST MEAN THAT ONE OF THE "CONCERTED
ACTIVITIES" IN WHICH EMPLOYEES MAY ENGAGE IS TO STRIKE IN THESE
INTERSTATE INDUSTRIES.  IN ALL OF LABOR'S HISTORY NO "CONCERTED
ACTIVITY" HAS BEEN MORE CONSPICUOUS AND IMPORTANT THAN THE STRIKE; AND
NONE WAS THOUGHT TO BE MORE ESSENTIAL TO RECOGNITION OF THE RIGHT TO
COLLECTIVE BARGAINING.  MOREOVER, THE STRIKE HISTORICALLY AND IN THE
PRESENT CASES WAS USED TO MAKE EFFECTIVE THE COLLECTIVE BARGAINING
POWER WHICH SEC. 7 OF THE WAGNER ACT GUARANTEES.  THE RIGHT TO STRIKE,
RECOGNIZED BY SEC. 13, IS THUS AN INTEGRAL PART OF THE FEDERAL LABOR
MANAGEMENT POLICY. 

RELATIONS BOARD, 315 U.S. 740, 750, TO CHALLENGE AS UNCONSTITUTIONAL
WISCONSIN'S REGULATION OF PICKETING, THREATS, AND VIOLENCE IN
CONNECTION WITH LABOR DISPUTES.  WE DISALLOWED THE DEFENSE, HOLDING
THAT THOSE MATTERS WERE PROBLEMS WITHIN THE REACH OF THE TRADITIONAL
POLICE POWER OF THE STATES AND REMAINED THERE AFTER PASSAGE OF THE
FEDERAL ACT BECAUSE IT HAD NOT UNDERTAKEN TO REGULATE THEM. 

THE WAGNER ACT, TO BE SURE, DID NOT UNDERTAKE TO GIVE THE FEDERAL
AGENCY CONTROL OVER THE MANNER OF CALLING STRIKES OR THE PURPOSE FOR
WHICH THEY MAY BE CALLED.  TO THAT EXTENT THESE CASES HAVE COMMON
GROUND WITH THE ALLEN-BRADLEY DECISION.  BUT THERE THE SIMILARITY
ENDS.  IN ALLEN-BRADLEY THE CONGRESS HAD NOT EXPRESSED A POLICY ON
PICKETING, THREATS OR VIOLENCE IN CONNECTION WITH LABOR DISPUTES.  IN
THIS CASE, AS SEC. 13 READ IN CONJUNCTION WITH SEC. 7 MAKES PLAIN, IT
HAS ADOPTED A POLICY ON STRIKES.    IT IS THE PRESENCE OF A CONFLICTING
FEDERAL POLICY THAT DETERMINES WHETHER STATE ACTION MUST GIVE WAY UNDER
THE SUPREMACY CLAUSE,  FN2  EVEN THOUGH THERE MAY BE NO ACTUAL OR
POTENTIAL COLLISION BETWEEN FEDERAL AND STATE ADMINISTRATIVE AGENCIES. 
RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218.  IN HILL V. FLORIDA, 325
U.S. 538, A STATE REGULATION OF THE LICENSING OF BUSINESS AGENTS OF
UNIONS SUBJECT TO THE FEDERAL ACT WAS HELD TO BE IN CONFLICT WITH THE
WAGNER ACT NOT BECAUSE THE FEDERAL BOARD HAD ANY LICENSING JURISDICTION
BUT BECAUSE THE STATE LAW INTERFERED WITH THE FREEDOM OF COLLECTIVE
BARGAINING GUARANTEED BY SEC. 7 OF THE ACT.  THE PRESENT CASES FOLLOW A
FORTIORI, IF THE STRIKE IS INCLUDED IN THE "CONCERTED ACTIVITIES"
GUARANTEED BY SEC. 7. 

THE CONCERTED ACTIVITIES IN THESE CASES WERE AS OLD AS LABOR'S
STRUGGLE FOR EXISTENCE AND WERE AIMED AT (AS WELL AS A PART OF) THE
PURPOSES WHICH SEC. 7 OF THE FEDERAL ACT WAS DESIGNED TO PROTECT.  FN3
THEREFORE THE LEGALITY OF THE METHODS USED IS EXCLUSIVELY A QUESTION OF
FEDERAL LAW.  FN4 

FN1  IT WAS HELD IN LABOR BOARD V. PETER C.K. SWISS CHOC.  CO., 130
F.2D 503, 505, 506, THAT THE RIGHT TO ENGAGE IN A SYMPATHETIC STRIKE OR
A SECONDARY BOYCOTT WAS A CONCERTED ACTIVITY PROTECTED BY SEC. 7 PRIOR
TO THE 1947 AMENDMENTS.  IT WAS ALSO HELD IN LABOR BOARD V. REMINGTON
RAND, INC., 94 F.2D 862, 871, THAT A STRIKE BECAUSE OF AN EMPLOYER'S
REFUSAL TO NEGOTIATE WAS PROTECTED BY SEC. 13, AND EMPLOYEES SO ENGAGED
COULD RECOVER THEIR POSITIONS EVEN AT THE EXPENSE OF WORKERS HIRED TO
REPLACE THEM DURING THE STRIKE. 

FN2  ARTICLE VI, CLAUSE 2 OF THE CONSTITUTION. 

FN3  ALTHOUGH THIS LITIGATION IS CONTROLLED BY THE WAGNER ACT, THERE
IS NOTHING IN THE LABOR MANAGEMENT RELATIONS ACT OF 1947 THAT SUGGESTS
THAT CONGRESS WISHED TO WITHDRAW ITS PROTECTION FROM THE RIGHT TO
STRIKE EXCEPT TO THE EXTENT SPECIALLY PROVIDED BY THE AMENDMENTS TO THE
ACT.  SEE S. REP. NO. 105, 80TH CONG., 1ST SESS. 28(1947).  IT MAKES
SOME STRIKES UNFAIR LABOR PRACTICES.  61 STAT. 141, 29 U.S.C. SEC.
158(B).  BUT THE STRIKES SO CONDEMNED CONCEDEDLY DO NOT INCLUDE THE
KIND WE HAVE IN THE PRESENT CASES.  THE AMENDMENTS TO SECS. 7 AND 13,
29 U.S.C. SECS. 157, 163, DO NOT RESTRICT THE RIGHT AS IT PREVIOUSLY
EXISTED.  MOREOVER, THE 1947 LEGISLATION COMPREHENSIVELY DEFINES A
STRIKE, 29 U.S.C. SEC. 142, AS "ANY CONCERTED SLOW-DOWN OR OTHER
CONCERTED INTERRUPTION OF OPERATIONS BY EMPLOYEES," WHICH IS BROAD
ENOUGH TO INCLUDE THE ACTIVITY WHICH WISCONSIN HAS CONDEMNED HERE. 

FN4  THE COURT HERETOFORE HAS HELD THAT THE MEASURE OF THE RIGHT TO
STRIKE IN THESE INTERSTATE INDUSTRIES IS A QUESTION OF FEDERAL LAW. 
LABOR BOARD V. FANSTEEL CORP., 306 U.S. AT 255-257.  THUS SEC. 2(3) OF
THE WAGNER ACT DEFINED EMPLOYEE TO "INCLUDE ANY INDIVIDUAL WHOSE WORK
HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY CURRENT
LABOR DISPUTE  ...  "  49 STAT. 450, 29 U.S.C. SEC. 152(3).  IN
ACCORDANCE WITH THIS SECTION THE COURT HAS HELD THAT PARTICIPATION IN A
STRIKE DID NOT REMOVE WORKERS FROM THE PROTECTION OF THE ACT AND THAT
THEY RETAINED THE STATUS OF EMPLOYEES.  SEE LABOR BOARD V. MACKAY CO.,
304 U.S. 333, 345-347.  THE QUESTION OF WHAT IS A "LABOR DISPUTE"
WITHIN THE MEANING OF SEC. 2(3) NECESSARILY INVOLVES A CONSIDERATION OF
WHETHER THE STRIKE WAS OR WAS NOT JUSTIFIED.  SEE LABOR BOARD V.
STACKPOLE CARBON CO., 105 F.2D 167, 176. 

DETERMINATION OF THE LEGALITY OF STRIKES IN INTERSTATE INDUSTRIES BY
FEDERAL LAW IS NECESSARY IF THE ADMINISTRATION OF THE FEDERAL SYSTEM OF
LABOR-MANAGEMENT RELATIONS IS TO BE UNIFORM AND HARMONIOUS.  THE STATUS
OF WORKERS AS EMPLOYEES WILL DETERMINE WHAT RELIEF THEY MAY BE ENTITLED
TO UNDER THE FEDERAL ACT.  SEE PHELPS DODGE CORP. V. LABOR BOARD, 313
U.S. 177.  REINSTATEMENT RIGHTS MAY INDEED DEPEND ON WHETHER A WORKER
HAS LOST HIS STATUS AS AN EMPLOYEE THROUGH ACTIVITIES NOT COMPREHENDED
IN THE FEDERAL PROTECTION OF THE RIGHT TO STRIKE.  LABOR BOARD V.
FANSTEEL CORP., SUPRA. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE RUTLEDGE CONCURS,
DISSENTING. 

TO INTERFERE WITH PRODUCTION AND TO ENFORCE THEIR BARGAINING DEMANDS,
EMPLOYEES OF BRIGGS AND STRATTON CALLED TWENTY-SEVEN UNION MEETINGS
DURING WORKING HOURS WITHOUT ADVANCE NOTICE TO THE EMPLOYER.  EMPLOYEES
LEFT THEIR WORK AND RETURNED LATER IN THE DAY, OR THE FOLLOWING DAY. 
WISCONSIN HAS MADE THIS CONCERTED ACTIVITY UNLAWFUL.  THE QUESTION IS
WHETHER THE STATE'S ACTION VIOLATES THE FEDERAL GUARANTEE CONTAINED IN
SEC. 7 OF THE WAGNER AND TAFT-HARTLEY ACTS: "EMPLOYEES SHALL HAVE THE
RIGHT TO  ...  ENGAGE IN CONCERTED ACTIVITIES, FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION." 

WE HAVE RECOGNIZED THAT THE PHRASE "CONCERTED ACTIVITIES" DOES NOT
MAKE EVERY UNION ACTIVITY A FEDERAL RIGHT.  WE HAVE HELD THAT VIOLENCE
BY STRIKERS IS NOT PROTECTED, ALLEN-BRADLEY LOCAL V. WISCONSIN
EMPLOYMENT RELATIONS BOARD, 315 U.S. 740; THAT A SIT-DOWN STRIKE, LABOR
BOARD V. FANSTEEL CORP., 306 U.S. 240, A MUTINY, SOUTHERN S.S. CO. V.
LABOR BOARD, 316 U.S. 31, AND A STRIKE IN VIOLATION OF A CONTRACT,
LABOR BOARD V. SANDS MFG. CO., 306 U.S. 332, MUST BE WITHDRAWN FROM THE
LITERAL LANGUAGE OF SEC. 7. 

BUT THE COURT, BY ITS REASONING AND ITS QUOTATION FROM A
CONGRESSIONAL REPORT, NOW MAKES INTERMITTENT WORK STOPPAGES THE
EQUIVALENT OF MUTINY, CONTRACT-BREAKING, AND THE SIT-DOWN STRIKE.  IT
STRETCHES THE "OBJECTIVES AND MEANS" TEST TO INCLUDE A FORM OF PRESSURE
WHICH IS PEACEFUL AND DIRECT.  IN EFFECT, IT ADOPTS THE EMPLOYER'S PLEA
THAT IT CANNOT PLAN PRODUCTION SCHEDULES, CANNOT NOTIFY ITS CUSTOMERS
AND SUPPLIERS, CANNOT DETERMINE ITS OUTPUT WITH ANY DEGREE OF CERTAINTY
AND THAT THESE INCONVENIENCES WITHDRAW THIS ACTIVITY FROM SEC. 7 OF THE
NATIONAL STATUTES.  THE MAJORITY AND THE WISCONSIN COURT CALL THE
WEAPON OBJECTIONABLE, THEN, ONLY BECAUSE IT IS EFFECTIVE.  TO IMPUTE
THIS RATIONALE TO THE CONGRESS WHICH ENACTED THE WAGNER ACT IS, IN MY
OPINION, JUDICIAL LEGISLATION OF AN EXTREME FORM. 

THE COURT CHOOSES TO IGNORE THE CONSISTENT POLICY OF THE AGENCY
CHARGED WITH PRIMARY RESPONSIBILITY IN INTERPRETING AND ADMINISTERING
SEC. 7.  THE NATIONAL BOARD HAS REPEATEDLY HELD THAT WORK STOPPAGES OF
THIS NATURE ARE "PARTIAL STRIKES" AND "CONCERTED ACTIVITIES" WITHIN THE
MEANING OF SEC. 7.  CUDAHY PACKING COMPANY, 29 N.L.R.B. 837, 863;
ARMOUR & COMPANY, 25 N.L.R.B. 989; THE GOOD COAL COMPANY, 12 N.L.R.B.
136, 146; AMERICAN MFG. CONCERN, 7 N.L.R.B. 753, 758; HARNISCHFEGER
CORPORATION, 9 N.L.R.B. 676, 685; MT. CLEMENS POTTERY COMPANY, 46
N.L.R.B. 714, 716.  IN EACH OF THESE SIX CASES, THE BOARD'S
INTERPRETATION OF SEC. 7 IS DIRECTLY CONTRARY TO THAT REACHED BY THE
COURT IN THE CASE BEFORE US.  IN EACH CASE THE BOARD CONCLUDED THAT
WORK STOPPAGES OR "PARTIAL STRIKES" CANNOT BE WITHDRAWN FROM THE
LANGUAGE OF SEC. 7.  TO IGNORE THE BOARD'S CONSISTENT RULINGS IN THIS
CASE IS A NEW AND UNIQUE DEPARTURE FROM THE RULE OF DEFERENCE TO
SETTLED ADMINISTRATIVE INTERPRETATION.  THE FACT THAT THE STOPPAGES IN
THE BOARD CASES WERE FEWER IN NUMBER THAN THOSE AT BRIGGS AND STRATTON
IS NOT, OF COURSE, A CONTROLLING DIFFERENCE - UNLESS WE ARE TO SAY THAT
THE STOPPAGES ARE NOT PROTECTED BY SEC. 7 BECAUSE THEY ARE EFFECTIVE
FROM THE UNION'S POINT OF VIEW. 

WISCONSIN'S ACTION CLEARLY CONFLICTS WITH SEC. 7, AND ACCORDINGLY, I
WOULD REVERSE THE JUDGMENT. 
..END :












GRAVER MFG. CO. V. LINDE CO., 336 U.S. 271 


NOS. 184 AND 185.  ARGUED JANUARY 5-6, 1949.  - DECIDED FEBRUARY 28,
1949.  - 167 F.2D 531, AFFIRMED IN PART AND REVERSED IN PART. 


1.  CERTAIN FLUX CLAIMS OF JONES PATENT NO. 2,043,960, FOR AN ELECTRIC
WELDING PROCESS AND FOR FLUXES, OR COMPOSITIONS, TO BE USED THEREWITH,
HELD VALID AND INFRINGED.  PP. 273-276. 

(A)  THIS COURT, BEING A COURT OF LAW RATHER THAN A COURT FOR
CORRECTION OF ERRORS IN FACT FINDING, CANNOT UNDERTAKE TO REVIEW
CONCURRENT FINDINGS OF FACT BY TWO COURTS BELOW IN THE ABSENCE OF A
VERY OBVIOUS AND EXCEPTIONAL SHOWING OF ERROR.  PP. 274-275. 

(B)  WHILE THE ULTIMATE QUESTION OF PATENTABILITY IS ONE OF MEETING
THE REQUIREMENTS OF THE STATUTE, THE FACTS FOUND BY THE TWO COURTS
BELOW WITH RESPECT TO THESE CLAIMS WARRANT A CONCLUSION BY THIS COURT
AS A MATTER OF LAW THAT THOSE STATUTORY REQUIREMENTS HAVE BEEN MET.  P.
275. 

(C)  THE TWO COURTS BELOW FOUND THAT THESE CLAIMS WERE INFRINGED AND
THIS COURT FINDS NO CAUSE FOR REVERSAL.  PP. 275-276. 

2.  CERTAIN OTHER FLUX CLAIMS OF THE SAME PATENT HELD INVALID AS
BEING TOO BROAD AND COMPREHENDING MORE THAN THE INVENTION.  PP. 276
277. 

(A) WHILE VAIN REPETITION IS NO MORE TO BE ENCOURAGED IN PATENTS THAN
IN OTHER DOCUMENTS, AND CLAIMS LIKE OTHER STATEMENTS MAY INCORPORATE
OTHER MATTERS BY REFERENCE, THEIR TEXT MUST BE SUFFICIENT TO
"PARTICULARLY POINT OUT AND DISTINCTLY CLAIM" AN IDENTIFIABLE INVENTION
OR DISCOVERY.  P. 277. 

(B)  WHEN CLAIMS OVERCLAIM THE INVENTION TO THE POINT OF INVALIDITY
AND ARE FREE FROM AMBIGUITY WHICH MIGHT JUSTIFY RESORT TO THE
SPECIFICATIONS, THEY ARE NOT TO BE SAVED BECAUSE THE LATTER ARE LESS
INCLUSIVE.  P. 277. 

3.  ALL PROCESS CLAIMS OF THE SAME PATENT HELD INVALID.  PP. 277
279. 

4.  BOTH COURTS BELOW HAVING FOUND THAT THE PATENT HAD NOT BEEN
ABUSED SO AS TO FORFEIT THE RIGHT TO MAINTAIN AN INFRINGEMENT SUIT
BASED ON THE CLAIMS HELD VALID, THIS COURT AFFIRMS THEIR JUDGMENT ON
THAT POINT.  PP. 279-280. 

GRAVER TANK & MFG. CO., INC. ET AL. V. LINDE AIR PRODUCTS CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN A SUIT FOR INFRINGEMENT OF A PATENT, THE DISTRICT COURT HELD THAT
CERTAIN CLAIMS WERE VALID AND INFRINGED AND HAD NOT BEEN FORFEITED BY
MISUSE, BUT THAT CERTAIN OTHER CLAIMS WERE INVALID.  75 U.S.P.Q. 231. 
THE COURT OF APPEALS AFFIRMED IN PART AND REVERSED IN PART.  167 F.2D
531.  THIS COURT GRANTED CERTIORARI.  335 U.S. 810.  JUDGMENT OF THE
COURT OF APPEALS REVERSED INSOFAR AS IT REVERSES THAT OF THE DISTRICT
COURT AND JUDGMENT OF THE DISTRICT COURT REINSTATED IN TOTO.  P. 280. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

WRITS OF CERTIORARI HAVE BEEN GRANTED, 335 U.S. 810, TO REVIEW TWO
JUDGMENTS OF THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT INVOLVING THE
SAME PATENT.  WHAT WE SHALL CALL THE JONES PATENT WAS NO. 2,043,960,
ISSUED TO LLOYD THEODORE JONES AND OTHERS, FOR AN ELECTRIC WELDING
PROCESS AND FOR FLUXES, OR COMPOSITIONS, TO BE USED THEREWITH.  THE
PATENT IS NOW OWNED BY THE LINDE AIR PRODUCTS COMPANY, WHICH BROUGHT AN
ACTION FOR INFRINGEMENT AGAINST THE LINCOLN AND TWO GRAVER COMPANIES. 

THE DISTRICT COURT HELD FOUR OF THE FLUX CLAIMS VALID AND INFRINGED
AND CONCLUDED THAT THE PATENT OWNER HAD NOT MISUSED THE PATENT SO AS TO
FORFEIT ITS CLAIMS TO RELIEF THEREFOR.  IT HELD CERTAIN OTHER FLUX
CLAIMS AND ALL OF THE PROCESS CLAIMS INVALID.  75 U.S.P.Q. 231. 

THE COURT OF APPEALS AFFIRMED THE FINDINGS THAT FOUR FLUX CLAIMS WERE
VALID AND INFRINGED AND THAT THE PATENT HAD NOT BEEN ABUSED, BUT
REVERSED THE TRIAL COURT AND HELD VALID THE PROCESS CLAIMS AND THE
REMAINING CONTESTED FLUX CLAIMS.  167 F.2D 531. 

THE PETITIONERS CONTEND NOT ONLY THAT THE COURT OF APPEALS' JUDGMENT
SHOULD BE REVERSED, BUT THAT WE SHOULD ALSO REVERSE THE DISTRICT
COURT'S FINDING OF PARTIAL VALIDITY AND SHOULD DECLARE THE PATENT
ENTIRELY INVALID AND NOT INFRINGED. 

AT THE TRIAL THE ELECTRIC WELDING PRIOR ART AND THE NATURE OF THE
JONES INVENTION WERE EXPLORED AT LENGTH, AND OPINIONS OF THE TWO COURTS
BELOW, ALREADY IN THE BOOKS, ADEQUATELY DISCUSS THE TECHNOLOGY OF THAT
ART AND THE SCIENTIFIC FEATURES OF THE CLAIMS INVOLVED.  WE SHALL
CONFINE THIS OPINION TO A STATEMENT OF THE LEGAL PRINCIPLES WHICH LEAD
TO OUR DECISION.  *GI.  FLUX CLAIMS 18, 20, 22 AND 23, HELD VALID, AND

 INFRINGED, BY TWO COURTS BELOW. 

ELECTRIC WELDING WAS AN ESTABLISHED ART BEFORE THIS INVENTION BUT ONE
WITH SERIOUS LIMITATIONS WHICH THE INDUSTRY SOUGHT TO OVERCOME.  THE
KNOWN METHOD WAS SLOW AND LABORIOUS AND PERMITTED WELDING OF ONLY
RELATIVELY THIN PLATES.  IT WAS OF DIFFERENT TYPES, BUT EACH HAD SUCH
DEFICIENCIES AS A DAZZLING OPEN ARC, SMOKE AND SPLATTER, WHICH MADE
OPERATION UNPLEASANT AND SOMEWHAT HAZARDOUS. 

THREE SCIENTIFICALLY TRAINED INDIVIDUALS, JONES, KENNEDY AND
ROTERMUND, SET OUT PURPOSELY TO DISCOVER A CURE FOR THE DEFICIENCIES
AND INADEQUACIES IN THE METHOD OF FLUX WELDING, THEN THE MOST
SUCCESSFUL METHOD KNOWN.  THEY COLLABORATED FOR SOME SIX MONTHS IN
CONDUCTING A SERIES OF ABOUT 500 EXPERIMENTS IN THE COURSE OF WHICH
THEY COMPOUNDED 75 DIFFERENT FLUX COMPOSITIONS.  THEY FINALLY PRODUCED
THE INVENTION FOR WHICH A PATENT WAS SOUGHT. 

THE TRIAL COURT NOTED THAT THE RESULTS PRODUCED BY THEIR INVENTION
CONTRASTED WITH THOSE POSSIBLE UNDER ALL PRIOR METHODS IN THAT "THERE
IS NO GLARE, NO OPEN ARC, NO SPLATTER, AND VERY LITTLE, IF ANY, SMOKE
IN THE JONES, ET AL. METHOD." 

"THE TRULY REMARKABLE DIFFERENCE, HOWEVER, BETWEEN WHAT JONES,
KENNEDY AND ROTERMUND INVENTED AND WHAT HAD GONE ON BEFORE IS PERHAPS
BEST MANIFESTED BY THE PERFORMANCE ACHIEVEMENTS OF THEIR INVENTION. 
FOR INSTANCE, ONLY THROUGH ITS USE CAN PLATES AS THICK AS TWO AND ONE
HALF INCHES BE WELDED IN A SINGLE PASS.  FURTHERMORE, THE WELDING
SPEEDS MADE POSSIBLE BY IT DWARF THOSE OF ANY OTHER METHOD, AND THE
WELDS PRODUCED BY IT ARE OF THE HIGHEST QUALITY IN CONTRAST TO THE
GREAT AMOUNT OF POROSITY CONTAINED IN THE WELDS PRODUCED BY THE SO
CALLED CLAY FLUX PROCESS." 

THE TRIAL COURT CONTINUED:  "SINCE THE PATENTEES DID INVENT SOMETHING
PATENTABLE OVER THE PRIOR ART OF ELECTRIC WELDING, THE COLLATERAL
QUESTIONS OF WHAT CONSTITUTES THEIR INVENTION, AND WHAT ARE ITS
BOUNDARIES, BECOME PERTINENT."  HE CONCLUDED THAT WHAT WAS REALLY
INVENTED WAS THAT WHICH WAS CLAIMED AND BOUNDED BY THE COMPOSITION
CLAIMS NOS. 18, 20, 22 AND 23.  HIS FINDINGS AND CONCLUSION WERE
AFFIRMED BY THE COURT OF APPEALS.  WE ARE NOW ASKED TO HOLD THAT THERE
HAS BEEN NO SUCH INVENTION. 

RULE 52(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDES IN PART:
"FINDINGS OF FACT SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, AND
DUE REGARD SHALL BE GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO
JUDGE OF THE CREDIBILITY OF THE WITNESSES."  TO NO TYPE OF CASE IS THIS
LAST CLAUSE MORE APPROPRIATELY APPLICABLE THAN TO THE ONE BEFORE US,
WHERE THE EVIDENCE IS LARGELY THE TESTIMONY OF EXPERTS AS TO WHICH A
TRIAL COURT MAY BE ENLIGHTENED BY SCIENTIFIC DEMONSTRATIONS.  THIS
TRIAL OCCUPIED SOME THREE WEEKS, DURING WHICH, AS THE RECORD SHOWS, THE
TRIAL JUDGE VISITED LABORATORIES WITH COUNSEL AND EXPERTS TO OBSERVE
ACTUAL DEMONSTRATIONS OF WELDING AS TAUGHT BY THE PATENT AND OF THE
WELDING ACCUSED OF INFRINGING IT, AND OF VARIOUS STAGES OF THE PRIOR
ART. HE VIEWED MOTION PICTURES OF VARIOUS WELDING OPERATIONS AND TESTS
AND HEARD MANY EXPERTS AND OTHER WITNESSES.  HE WROTE A CAREFUL AND
SUCCINCT OPINION AND MADE FINDINGS COVERING ALL THE FACTUAL ISSUES. 

THE RULE REQUIRES THAT AN APPELLATE COURT MAKE ALLOWANCE FOR THE
ADVANTAGES POSSESSED BY THE TRIAL COURT IN APPRAISING THE SIGNIFICANCE
OF CONFLICTING TESTIMONY AND REVERSE ONLY "CLEARLY ERRONEOUS"
FINDINGS.  THESE ARE MANIFESTLY SUPPORTED BY SUBSTANTIAL EVIDENCE AND
THE COURT OF APPEALS FOUND THEM SUPPORTED BY THE WEIGHT OF THE EVIDENCE
- INDEED FOUND THE EVIDENCE TO WARRANT SUPPORT OF THE PATENT EVEN IN
MATTERS NOT FOUND BY THE TRIAL COURT.  A COURT OF LAW, SUCH AS THIS
COURT IS, RATHER THAN A COURT FOR CORRECTION OF ERRORS IN FACT FINDING,
CANNOT UNDERTAKE TO REVIEW CONCURRENT FINDINGS OF FACT BY TWO COURTS
BELOW IN THE ABSENCE OF A VERY OBVIOUS AND EXCEPTIONAL SHOWING OF
ERROR.  GOODYEAR TIRE & RUBBER CO. V. RAY-O-VAC CO., 321 U.S. 275;
DISTRICT OF COLUMBIA V. PACE, 320 U.S. 698; WILLIAMS MFG. CO. V. UNITED
SHOE MACHINERY CORP., 316 U.S. 364; BAKER V. SCHOFIELD, 243 U.S. 114,
118. 

NO SUCH SHOWING IS MADE.  WHILE THE ULTIMATE QUESTION OF
PATENTABILITY IS ONE OF MEETING THE REQUIREMENTS OF THE STATUTE, R.S.
SEC. 4886, AS AMENDED, 35 U.S.C. SEC. 31, THE FACTS AS FOUND WITH
RESPECT TO THESE FOUR FLUX CLAIMS WARRANT A CONCLUSION HERE THAT AS
MATTER OF LAW THOSE STATUTORY REQUIREMENTS HAVE BEEN MET.  ACCORDINGLY,
WE AFFIRM THE JUDGMENT INSOFAR AS IT HOLDS CLAIMS NUMBERED 18, 20, 22
AND 23 DEFINE AN INVENTION FOR WHICH PATENT HAS VALIDLY ISSUED. 

TURNING TO THE QUESTION OF INFRINGEMENT, THE DISTRICT COURT FOUND
THAT THE LINCOLN ELECTRIC CO. MADE, AND THE OTHER PETITIONERS USED AND
SOLD, A FLUX SUBSTANTIALLY IDENTICAL WITH THAT SET FORTH IN THE VALID
COMPOSITION CLAIMS OF THE PATENT IN SUIT AND WHICH COULD BE MADE BY A
PERSON SKILLED IN THE ART MERELY BY FOLLOWING ITS TEACHINGS.  THE
PETITIONERS INTRODUCED NO EVIDENCE TO SHOW THAT THEIR ACCUSED FLUX WAS
DERIVED EITHER FROM THE PRIOR ART, BY INDEPENDENT EXPERIMENT OR FROM
ANY SOURCE OTHER THAN THE TEACHINGS OF THE PATENT IN SUIT.  THE COURT
FOUND INFRINGEMENT OF EACH OF THE FOUR CLAIMS AND CONCLUDED THAT THE
RESPONDENT WAS ENTITLED TO A PERMANENT INJUNCTION AGAINST FUTURE
INFRINGEMENT AND TO AN ACCOUNTING FOR PROFITS AND DAMAGES.  THESE
FINDINGS AND CONCLUSIONS WERE AFFIRMED BY THE COURT OF APPEALS AND WE
FIND NO CAUSE FOR REVERSAL. 

           II.  FLUX CLAIMS HELD INVALID BY THE DISTRICT COURT

           AND VALID BY THE COURT OF APPEALS. 

THE DISTRICT COURT HELD INVALID CLAIMS TO A FLUX FOR USE IN THE
PROCESS, NUMBERED 24, 26 AND 27.  THE COURT OF APPEALS REVERSED AS TO
THESE AND HELD THEM VALID.  REMAINING FLUX CLAIMS, NUMBERED 19, 21, 25,
28 AND 29, WERE NOT IN ISSUE, AND CLAIM 27 WE CONSIDER ALONG WITH THE
PROCESS CLAIMS. 

THE DIFFERENCE BETWEEN THE DISTRICT COURT AND THE COURT OF APPEALS AS
TO THESE FINDINGS COMES TO THIS:  THE TRIAL COURT LOOKED AT CLAIMS 24
AND 26 ALONE AND DECLINED TO INTERPRET THE TERMS "SILICATES" AND
"METALLIC SILICATES" THEREIN AS BEING LIMITED OR QUALIFIED BY
SPECIFICATIONS TO MEAN ONLY THE NINE METALLIC SILICATES WHICH HAD BEEN
PROVED OPERATIVE.  THE DISTRICT COURT CONSIDERED THAT THE CLAIMS
THEREFORE WERE TOO BROAD AND COMPREHENDED MORE THAN THE INVENTION.  THE
COURT OF APPEALS CONSIDERED THAT BECAUSE THERE WAS NOTHING IN THE
RECORD TO SHOW THAT THE APPLICANTS FOR THE PATENT INTENDED BY THESE
CLAIMS TO ASSERT A MONOPOLY BROADER THAN NINE METALLIC SILICATES NAMED
IN THE SPECIFICATIONS, THE COURT SHOULD HAVE CONSTRUED THE CLAIMS AS
THUS NARROWED AND LIMITED BY THE SPECIFICATIONS. 

THE STATUTE MAKES PROVISION FOR SPECIFICATION SEPARATELY FROM THE
CLAIMS AND REQUIRES THAT THE LATTER "SHALL PARTICULARLY POINT OUT AND
DISTINCTLY CLAIM THE PART, IMPROVEMENT, OR COMBINATION WHICH HE CLAIMS
AS HIS INVENTION OR DISCOVERY."  R.S. SEC. 4888, AS AMENDED, 35 U.S.C.
SEC. 33.  IT WOULD ACCOMPLISH LITTLE TO REQUIRE THAT CLAIMS BE
SEPARATELY WRITTEN IF THEY ARE NOT TO BE SEPARATELY READ.  WHILE VAIN
REPETITION IS NO MORE TO BE ENCOURAGED IN PATENTS THAN IN OTHER
DOCUMENTS, AND CLAIMS LIKE OTHER STATEMENTS MAY INCORPORATE OTHER
MATTER BY REFERENCE, THEIR TEXT MUST BE SUFFICIENT TO "PARTICULARLY
POINT OUT AND DISTINCTLY CLAIM" AN IDENTIFIABLE INVENTION OR
DISCOVERY.  WE HAVE FREQUENTLY HELD THAT IT IS THE CLAIM WHICH MEASURES
THE GRANT TO THE PATENTEE.  SEE, FOR EXAMPLE, MILCOR STEEL CO. V.
FULLER CO., 316 U.S. 143, 145; GENERAL ELECTRIC CO. V. WABASH CO., 304
U.S. 364, 369; ALTOONA THEATRES V. TRI-ERGON CORP., 294 U.S. 477, 487. 
WHILE THE CASES MORE OFTEN HAVE DEALT WITH EFFORTS TO RESORT TO
SPECIFICATIONS TO EXPAND CLAIMS, IT IS CLEAR THAT THE LATTER FAIL
EQUALLY TO PERFORM THEIR FUNCTION AS A MEASURE OF THE GRANT WHEN THEY
OVERCLAIM THE INVENTION.  WHEN THEY DO SO TO THE POINT OF INVALIDITY
AND ARE FREE FROM AMBIGUITY WHICH MIGHT JUSTIFY RESORT TO THE
SPECIFICATIONS, WE AGREE WITH THE DISTRICT COURT THAT THEY ARE NOT TO
BE SAVED BECAUSE THE LATTER ARE LESS INCLUSIVE.  CF. GENERAL ELECTRIC
CO. V. WABASH CO., 304 U.S. 364, 373-374; SEE MCCLAIN V. ORTMAYER, 141
U.S. 419, 424-425; CIMIOTTI UNHAIRING CO. V. AMERICAN FUR REFINING CO.,
198 U.S. 399, 410. 

WE THINK THE DISTRICT COURT CORRECTLY APPLIED THIS PRINCIPLE TO
CLAIMS 24 AND 26. 

                        III.  PROCESS CLAIMS. 

ALL PROCESS CLAIMS WERE HELD INVALID BY THE DISTRICT COURT; THOSE
NUMBERED 1, 3, 4, 7, 8 AND 9, BECAUSE THEY MAKE NO SPECIFIC REFERENCE
TO THE ESSENTIAL CHEMICAL CONSTITUENTS OF THE WELDING COMPOSITION TO BE
USED IN THE CLAIMED WELDING PROCESS, A CONCLUSION WITH WHICH WE AGREE. 
PROCESS CLAIM 2 WAS HELD INVALID FOR THE REASON APPLICABLE TO FLUX
CLAIMS 24 AND 26, WITH WHICH WE ALSO AGREE.  OTHERS, NAMELY 5, 6, 11,
12, 13, 14, 15, 16 AND 17, AND COMPOSITION CLAIM 27 WERE HELD INVALID
BECAUSE THEY ERRONEOUSLY IMPORT THAT THE SOLE CONDUCTIVE MEDIUM THROUGH
WHICH ELECTRIC CURRENT PASSES FROM THE ELECTRODE TO THE BASE METAL IS
THE WELDING COMPOSITION, WHICH IS IN A MOLTEN STATE, AND THAT NO
ELECTRIC ARC PHENOMENON IS PRESENT. 

THE COURT FOUND THAT THE PROCEDURAL STEPS IN THE PROCESS TAUGHT BY
THE PATENT ARE IDENTICAL IN ALL RESPECTS WITH THOSE FOLLOWED IN PRIOR
AUTOMATIC ELECTRIC WELDING PROCESSES AND THAT THE ONLY INVENTION OR
DISCOVERY RESIDES IN THE USE OF A DIFFERENT WELDING COMPOSITION.  IT
SUSTAINED THE PATENT FOR THE COMPOSITION, AS WE HAVE SHOWN, BUT DENIED
ITS VALIDITY INSOFAR AS IT CLAIMED THE OLD PROCEDURE. 

THE TRIAL COURT GAVE EXTENSIVE CONSIDERATION TO THE PROCESS CLAIMS. 
IT AGREED THAT A RADICALLY NEW PROCESS WOULD HAVE BEEN DISCOVERED IF IT
COULD BE SAID THAT THE ELECTRIC CURRENT PASSED BETWEEN THE ELECTRODE
AND THE BASE METAL THROUGH A WELDING COMPOSITION IN A LIQUID STATE AND
THAT NO ELECTRIC ARC IS PRESENT.  ALL OF THE PREVIOUS ART HAD USED THE
ELECTRIC ARC.  BUT WITH FULL APPRECIATION OF THE CRITICAL NATURE OF THE
INQUIRY AND AFTER LONG LITIGATION OF THE TECHNOLOGY OF THE ART, THE
COURT CONCLUDED THAT NO SUCH FINDING OF DEPARTURE FROM THE PRIOR ART
COULD BE MADE AND SAID THAT THE EVIDENCE IS PERSUASIVE THAT NO SUCH
BASIC DIFFERENCE IN PHENOMENA IS PRESENT IN THE JONES METHOD. 

THE DISTRICT COURT REINFORCED ITS CONCLUSION BY POINTING OUT THAT THE
INVENTORS THEMSELVES INITIALLY DID NOT CONCEIVE THEIR INVENTION TO
EMBODY ANY SUCH RADICAL DEPARTURE FROM KNOWN PHENOMENA AND THAT THEIR
FIRST APPLICATION FOR A PATENT WAS REPLETE WITH REFERENCES TO THE
PRESENCE AND USE OF AN ELECTRIC ARC IN THE NEW METHOD.  IT WAS ONLY
AFTER THEY HAD ASSIGNED THEIR RIGHTS TO THE RESPONDENT THAT THE
SUGGESTION OF A BASICALLY NEW PHENOMENON, OTHER THAN AN ARC, WAS MADE. 
JUST WHAT HAPPENS IN THE JONES METHOD ADMITS OF CONTROVERSY, FOR THERE
IS NO VISUAL EVIDENCE OF AN ELECTRIC ARC AFTER THE WELDING OPERATION
COMMENCES BECAUSE WHAT ACTUALLY OCCURS BETWEEN THE ELECTRODE AND THE
METAL BASE IS HIDDEN FROM VIEW BY THE FLUX.  THE COURT CONCLUDED THAT
IT IS IMPOSSIBLE TO SAY WITH COMPLETE CERTAINTY THAT THERE IS NOT AN
ARC AND ONE OF THE PLAINTIFF'S EXPERT WITNESSES GAVE SUBSTANTIAL
SUPPORT TO THE IDEA THAT THE ARC IS STILL PRESENT, ALTHOUGH IT IS
SHIELDED BY THE FLUX IN THE JONES PATENT. 

THE SAME DEFERENCE IS DUE TO THE FINDINGS OF THE TRIAL COURT WHICH
OVERTURN CLAIMS AS TO THOSE WHICH SUSTAIN THEM.  TECHNICIANS MAY AND
PROBABLY WILL CONTINUE TO DEBATE WITH PLAUSIBLE ARGUMENTS ON EACH SIDE
AS TO WHAT THIS OBSCURE PROCESS REALLY IS.  BUT THE RECORD IN THIS
CASE, WHILE NOT ESTABLISHING TO A CERTAINTY THAT THE FINDINGS ARE
RIGHT, FALL FAR SHORT OF CONVINCING US THAT THEY ARE CLEARLY
ERRONEOUS.  WE THINK THAT THE RULES THAT GOVERN REVIEW ENTITLE THE
TRIAL COURT'S CONCLUSIONS TO PREVAIL AND THAT THE PROCESS CLAIMS ARE
INVALID UNDER THE STATUTE. 

              IV.  ABUSE OF PATENT. 

CONTENTIONS ARE MADE THAT THE PATENT HAS BEEN ABUSED THROUGH EFFORTS
TO BROADEN THE PATENT MONOPOLY BY REQUIRING THE PURCHASE OF
UNPATENTABLE MATERIAL FOR USE IN CONNECTION WITH IT.  THE TRIAL COURT
FOUND, HOWEVER, THAT THE PLAINTIFF DOES NOT IMPOSE ON LICENSEES, EITHER
AS A CONDITION OF A LICENSE OR OTHERWISE, ANY REQUIREMENT, CONDITION,
AGREEMENT OR UNDERSTANDING AS TO THE PURCHASE OR USE OF UNPATENTABLE
COMMODITIES AND THAT ITS LICENSEES ARE FREE TO BUY AND USE ANY
MATERIALS AND EQUIPMENT FROM ANY SOURCE.  THE COURT RECOGNIZED THAT AN
APPEARANCE OF SUCH FREEDOM IS NOT CONCLUSIVE IF IT CONCEALS A
SUBTERFUGE AND THAT THERE IS A REAL, ALTHOUGH INFORMAL, RESTRAINT.  BUT
EXAMINING THE CONDUCT OF THE PLAINTIFF, IT FOUND NO SUCH OBSTACLE TO
THE MAINTENANCE OF AN ACTION FOR INFRINGEMENT ON THAT PART OF THE
PATENT WHICH WAS VALID.  THE COURT OF APPEALS AFFIRMED, AND WE ACCEPT
THE CONCLUSION OF THE TWO COURTS BELOW ON THIS BRANCH OF THE CASE. 

OUR CONCLUSION IS THAT THE JUDGMENT OF THE COURT OF APPEALS, INSOFAR
AS IT REVERSES THAT OF THE DISTRICT COURT, SHOULD BE REVERSED AND THAT
THE JUDGMENT OF THE DISTRICT COURT BE IN ALL THINGS REINSTATED.  TO
THAT EXTENT THE JUDGMENT BELOW IS REVERSED.  IT IS SO ORDERED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING. 

I CONCUR IN THE COURT'S JUDGMENT IN THIS CASE AND IN PARTS II, III
AND IV OF THE COURT'S OPINION.  BUT MY CONCURRENCE IN THE HOLDING THAT
CLAIMS 18, 20, 22 AND 23 ARE VALID DOES NOT REST MERELY ON FINDINGS OF
THE DISTRICT COURT AND THE COURT OF APPEALS THAT THOSE CLAIMS WERE
VALID.  WHILE ACCEPTING THE FINDINGS OF THOSE TWO COURTS ON WHAT I
CONSIDER TO BE QUESTIONS OF FACT, IT IS MY VIEW THAT DETERMINATION OF
THE ULTIMATE QUESTION OF PATENTABILITY CANNOT PROPERLY BE CLASSIFIED AS
A FINDING OF FACT.  I WOULD ADHERE TO THIS COURT'S EARLIER
PRONOUNCEMENT THAT "WHETHER THE THING PATENTED AMOUNTS TO A PATENTABLE
INVENTION" IS A QUESTION OF LAW TO BE DECIDED BY THE COURTS AS SUCH. 
MAHN V. HARWOOD, 112 U.S. 354, 358; AND SEE DISSENTING OPINIONS IN
GOODYEAR TIRE & RUBBER CO. V. RAY-O-VAC CO., 321 U.S. 275, 280, NOTE 1,
AND WILLIAMS MANUFACTURING CO. V. UNITED SHOE MACHINERY CORP., 316 U.S.
364, 383. 

I AGREE, HOWEVER, THAT THE FACTS FOUND HERE JUSTIFY THE HOLDING THAT
CLAIMS 18, 20, 22, AND 23 DO SHOW PATENTABLE DISCOVERY WHEN MEASURED BY
THE STANDARDS ANNOUNCED BY THIS COURT IN CUNO ENGINEERING CORP. V.
AUTOMATIC DEVICES CORP., 314 U.S. 84.  FOR THIS REASON I CONCUR IN
AFFIRMING THE JUDGMENT TO THE EXTENT THAT IT HELD THESE CLAIMS VALID. 
..END :






















WIS. POWER CO. V. UNITED STATES, 336 U.S. 176 


NO. 237.  ARGUED JANUARY 7, 1949.  - DECIDED FEBRUARY 14, 1949.  - 168
F.2D 285, AFFIRMED. 


1.  DAIRIES, ENGAGED PRIMARILY IN THE COLLECTION, PASTEURIZATION AND
DISTRIBUTION OF FRESH MILK, PURCHASED AND USED ELECTRICITY IN VARIOUS
WAYS IN THEIR GENERAL OPERATIONS, INCLUDING AN UNDETERMINED AMOUNT USED
IN PASTEURIZING MILK.  HELD:  ELECTRICITY SUPPLIED TO THESE DAIRIES
THROUGH SINGLE METERS, OR THROUGH MORE THAN ONE METER BUT WITHOUT
DIFFERENTIATION AS TO USE, IS SOLD FOR "COMMERCIAL CONSUMPTION" (AND
NOT FOR INDUSTRIAL PURPOSES), WITHIN THE MEANING OF SEC. 3411 OF THE
INTERNAL REVENUE CODE, AND IS TAXABLE AGAINST THE VENDOR UNDER THAT

2.  THE LEGISLATIVE HISTORY OF THIS SECTION INDICATES THAT THE TERM
"COMMERCIAL" WAS MEANT TO APPLY TO THE NATURE OF THE BUSINESS IN WHICH
THE ENERGY IS CONSUMED, AND NOT TO THE SPECIFIC PURPOSE TO WHICH EACH
MEASURABLE UNIT OF ELECTRICITY IS DEVOTED.  PP. 181-182. 

3.  THE CONTROLLING FACTOR IN DETERMINING THE APPLICABILITY OF THE
TAX IS THE GENERAL NATURE OF THE BUSINESS CARRIED ON AT A GIVEN
LOCATION.  PP. 182-184. 

4.  THOUGH THE PROCESS OF PASTEURIZING, SEPARATELY VIEWED, MAY BE
ASSUMED TO BE INDUSTRIAL, THE GENERAL NATURE OF THE BUSINESS CONDUCTED
BY THE DAIRY PLANTS HERE INVOLVED WAS ESSENTIALLY COMMERCIAL,
NOTWITHSTANDING THE INCLUSION OF PASTEURIZATION AMONG THEIR MANY
ACTIVITIES.  PP. 184-185. 

5.  THE CONCLUSION HERE REACHED AS TO THE APPLICABILITY OF THE TAX IS
SUPPORTED BY THE LEGISLATIVE HISTORY AND THE ADMINISTRATIVE
INTERPRETATION.  PP. 181-187. 

WISCONSIN ELECTRIC POWER CO. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PETITIONER SUED IN THE DISTRICT COURT FOR A REFUND OF TAXES ALLEGED
TO HAVE BEEN ERRONEOUSLY COLLECTED UNDER SEC. 3411 OF THE INTERNAL
REVENUE CODE.  THE DISTRICT COURT DENIED RECOVERY.  69 F.SUPP.  743. 
THE COURT OF APPEALS AFFIRMED.  168 F.2D 285.  THIS COURT GRANTED
CERTIORARI.  335 U.S. 842.  AFFIRMED, P. 187. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER, ENGAGED IN THE BUSINESS OF SUPPLYING ELECTRIC ENERGY TO
THE PUBLIC, SEEKS THE REFUND OF TAXES PAID BY IT PURSUANT TO SEC. 3411
OF THE INTERNAL REVENUE CODE.  THAT SECTION, IN PERTINENT PART,
PROVIDES FOR A TAX 

"...  UPON ELECTRICAL ENERGY SOLD FOR DOMESTIC OR COMMERCIAL
CONSUMPTION  ...  EQUIVALENT TO 3 PER CENTUM  FN1  OF THE PRICE FOR
WHICH SO SOLD, TO BE PAID BY THE VENDOR UNDER SUCH RULES AND
REGULATIONS AS THE COMMISSIONER, WITH THE APPROVAL OF THE SECRETARY,
SHALL PRESCRIBE."  FN2 

NOTE THAT THE STATUTE TAXES ENERGY FOR DOMESTIC OR COMMERCIAL
CONSUMPTION.  THERE IS NO PROVISION FOR TAXATION OF ELECTRICAL ENERGY
USED FOR INDUSTRIAL PURPOSES.  FN3 

THE PURCHASERS OF THE ELECTRIC POWER HERE INVOLVED ARE 27 DAIRY
PLANTS WHICH ARE ENGAGED PRIMARILY IN THE COLLECTION, PASTEURIZATION,
AND DISTRIBUTION OF FRESH MILK.  THE SOLE QUESTION PRESENTED BY THE
CASE IS WHETHER THE USE OF ELECTRICITY BY THESE DAIRIES IS COMMERCIAL
CONSUMPTION WITHIN THE MEANING OF THE STATUTE OR INDUSTRIAL
CONSUMPTION, A USE NOT COVERED BY THE STATUTE. 

THE FUNCTIONS OF THE DAIRY PLANTS ARE SUFFICIENTLY SIMILAR SO THAT
THEY CAN BE TREATED AS ONE FOR THE PURPOSE OF DESCRIBING THEIR METHODS
OF OPERATION.  THE PLANTS ARE BUILDINGS EQUIPPED WITH MILK-HANDLING
MACHINERY AND FACILITIES LOCATED EITHER OFF THE DAIRY FARMS, OR ON THE
DAIRY FARM ITSELF AS AN ACTIVITY APART FROM MILK PRODUCTION.  CONTRACTS
FOR THE PURCHASE OF RAW MILK ARE NEGOTIATED WITH NEARBY FARMS.  FN4
THIS MILK IS DELIVERED IN TRUCKS OF THE PRODUCERS OR OF THE DAIRY
PLANT, AS THE CASE MAY BE, TO THE PLANT WHERE IT IS RECEIVED, WEIGHED,
TESTED FOR BUTTERFAT CONTENT, COOLED, AND MIXED AND STANDARDIZED SO AS
TO ACHIEVE THE PROPER BUTTERFAT CONTENT.  NEXT IT IS PASTEURIZED. 
PASTEURIZATION CONSISTS OF HEATING THE MILK TO 143 DEGREES-145 DEGREES
F., MAINTAINING IT AT THAT LEVEL FOR ABOUT THIRTY MINUTES, AND THEN
SUBJECTING IT TO SUDDEN COOLING TO A POINT BETWEEN 38 DEGREES AND 40
DEGREES F. FN5  THE PROCESS IS DESIGNED TO KILL PATHOGENIC BACTERIA
WITHOUT DESTROYING THE NATURAL CREAMING PROPERTIES OR THE TASTE OF THE
MILK.  THEN THE MILK IS DRAWN INTO BOTTLES OR CANS WHICH HAVE BEEN
WASHED, STERILIZED, AND COOLED.  FINALLY IT IS STORED IN REFRIGERATED
ROOMS TO PERMIT THE CREAM LINE TO FORM AND TO AWAIT DELIVERY.  FN6
MOST OF IT IS DELIVERED TO CUSTOMERS IN THE DAIRY PLANT'S TRUCKS OR
WAGONS.  IN SOME INSTANCES A SMALL PROPORTION IS SOLD AT THE PLANT
ITSELF. 

ELECTRIC POWER IS EMPLOYED BY THE PURCHASING DAIRY PLANTS IN A NUMBER
OF WAYS.  IT IS USED TO LIGHT THE PLANTS, INCLUDING THE GARAGE SPACE
FOR THE COLLECTING AND DISTRIBUTING TRUCKS.  IT DRIVES ELECTRIC MOTORS
WHICH PUMP REFRIGERANTS, DELIVER MILK TO AND FROM THE PASTEURIZER AND
TO THE BOTTLING MACHINES, OPERATE THE HOMOGENIZER, THE BOTTLING
MACHINE, THE CREAM SEPARATOR, AND THE MACHINERY USED IN WASHING,
STERILIZING AND CONVEYING BOTTLES.  THE ELECTRICITY USED BY SOME OF THE
PLANTS IS MEASURED THROUGH A SINGLE METER, THAT OF OTHERS THROUGH TWO
OR MORE METERS, BUT IN NO CASE ARE THE METERS SO CONNECTED TO THE
INCOMING POWER LINE AS TO ENABLE THE ENERGY SUPPLIED FOR ONE PURPOSE TO
BE DIFFERENTIATED FROM THAT SUPPLIED FOR ANOTHER.  WE DO NOT HAVE
BEFORE US A SITUATION WHERE PASTEURIZATION UTILIZES ELECTRICAL ENERGY
THAT IS MEASURED BY A METER EXCLUSIVELY USED FOR PASTEURIZATION. 

PASTEURIZATION IS ACCOMPLISHED BY THE USE OF SPECIAL EQUIPMENT
DESIGNED FOR THAT PURPOSE.  MOST OF THE ELECTRICITY ATTRIBUTABLE TO THE
PROCESS IS DEVOTED TO THE ICE MACHINES WHICH PERFORM THE RAPID COOLING
OF THE MILK AFTER THE INITIAL HEATING.  SINCE THE SAME COOLING UNITS
PERFORM THE COOLING WHICH IS NECESSARY BEFORE AND AFTER PASTEURIZATION,
HOWEVER, THE ELECTRICITY WHICH THEY CONSUME FOR PASTEURIZATION ALONE
CANNOT BE ASCERTAINED.  PASTEURIZATION EQUIPMENT, INCLUDING THE
INCREASED COOLING EQUIPMENT NECESSARY THEREFOR, ACCOUNTS FOR ABOUT 15
OR 20 PERCENT OF THE TOTAL COST OF PLANT EQUIPMENT, EXCLUDING TRUCKS
AND OTHER VEHICLES.  ABOUT ONE-TENTH OF THE COST OF PLANT OPERATION,
EXCLUDING THE COST OF THE RAW MILK AND COSTS ATTRIBUTABLE TO
DISTRIBUTION, IS ATTRIBUTABLE TO PASTEURIZATION. 

PETITIONER PAID THE TAX ON ELECTRICAL ENERGY SOLD TO THE DAIRY PLANTS
DURING THE PERIOD FROM APRIL, 1940, TO JULY, 1943, AND THEN BROUGHT
SUIT TO RECOVER IT ON THE GROUND THAT SUCH ENERGY WAS SOLD NOT FOR
COMMERCIAL BUT FOR INDUSTRIAL CONSUMPTION.  THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF WISCONSIN HELD THAT THE SALES WERE
FOR COMMERCIAL CONSUMPTION WITHIN THE MEANING OF THE STATUTE, AND
THEREFORE THAT THE TAX WAS VALID.  69 F.SUPP.  743.  THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED.  168 F.2D 285.  IT
SUMMARIZED ITS VIEWS AS FOLLOWS: 

"WE AGREE WITH (DISTRICT) JUDGE DUFFY THAT THE WORDING AND
LEGISLATIVE HISTORY OF THE ACT MAKE IT CLEAR THAT THE PREDOMINANT
CHARACTER OF THE BUSINESS CARRIED ON BY A CONSUMER OF ELECTRICAL ENERGY
IS WHAT DETERMINES WHETHER THE ELECTRICITY SOLD HAS BEEN SOLD FOR
'COMMERCIAL CONSUMPTION'; HENCE WE ARE CONTENT TO ADOPT HIS OPINION AS
THAT OF THIS COURT."  ID. AT 286. 

THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT HAD HELD IN
UNITED STATES V. PUBLIC SERVICE CO. OF COLORADO, 143 F.2D 79, THAT
ELECTRICAL ENERGY SOLD TO DAIRY PLANTS OPERATING SUBSTANTIALLY AS THESE
WAS SOLD FOR INDUSTRIAL RATHER THAN COMMERCIAL CONSUMPTION, AND
CONSEQUENTLY WAS NOT TAXABLE UNDER SEC. 3411.  WE GRANTED CERTIORARI IN
THIS CASE IN ORDER TO RESOLVE THE APPARENT CONFLICT BETWEEN CIRCUITS
AND TO SETTLE THE MEANING OF THE STATUTE AS IT APPLIES TO THE BUSINESS
OF THIS GENERAL TYPE OF DAIRY PLANT.  335 U.S. 842. 

THE TAX NOW EMBODIED IN SEC. 3411 WAS ORIGINALLY IMPOSED UPON THE
CONSUMER OF ELECTRICITY BY THE REVENUE ACT OF 1932, 47 STAT. 169, 266. 
THIS ACT WAS AMENDED IN 1933 TO MAKE THE BURDEN OF THE TAX FALL
DIRECTLY UPON THE VENDOR.  48 STAT. 254, 256.  NO CHANGE OF ANY
SIGNIFICANCE FOR OUR PURPOSES HAS OCCURRED SINCE THE ORIGINAL ENACTMENT
OF THIS PROVISION. 

ALTHOUGH THE LANGUAGE OF THE SECTION DOES NOT INCLUDE THE WORD
"INDUSTRIAL," IT IS CLEAR FROM THE LEGISLATIVE HISTORY THAT
"COMMERCIAL" WAS USED IN CONTRADISTINCTION TO "INDUSTRIAL."  FN7 WHILE
ELECTRICITY SOLD FOR COMMERCIAL CONSUMPTION IS TAXED, THAT SOLD FOR
INDUSTRIAL CONSUMPTION IS NOT.  THUS OUR TASK RESOLVES ITSELF TO A
DETERMINATION OF THE CATEGORY IN WHICH THE CONSUMPTION OF ELECTRICITY
BY THESE DAIRY PLANTS SHOULD BE CLASSIFIED.  WE SHALL NOT UNDERTAKE THE
DIFFICULT AND HERE NEEDLESS TASK OF GENERAL DEFINITION WHICH
DIFFERENTIATES FOR THIS STATUTORY CLAUSE BETWEEN INDUSTRIAL AND
COMMERCIAL IN OTHER LINES OF BUSINESS ACTIVITY.  THAT IS A PROBLEM
PRIMARILY FOR THE ADMINISTRATORS OF THE SECTION, WITH KNOWLEDGE OF THE
SPECIFIC AND VARYING FACTS. 

THE LEGISLATIVE HISTORY INDICATES THAT THE TERM "COMMERCIAL" WAS
MEANT TO APPLY TO THE NATURE OF THE BUSINESS IN WHICH THE ENERGY IS
CONSUMED, AND NOT TO THE SPECIFIC PURPOSE TO WHICH EACH MEASURABLE UNIT
OF ELECTRICITY IS DEVOTED.  FN8  WHERE IT IS DELIVERED THROUGH A SINGLE
METER AT ONE LOCATION, ENERGY UTILIZED TO OPERATE SEWING MACHINES FOR A
MINOR MANUFACTURING UNIT, E.G., SHIRTS, IN A DEPARTMENT STORE, WOULD BE
DEEMED POWER SOLD FOR COMMERCIAL CONSUMPTION, ALTHOUGH IT MIGHT FALL
WITHIN THE INDUSTRIAL CATEGORY IF SOLD TO A CONSUMER WHO DID NOTHING
BUT MANUFACTURE SHIRTS.  SINCE ANY OTHER INTERPRETATION OF THE SECTION
WOULD ENTAIL THE ALMOST INSURMOUNTABLE ADMINISTRATIVE DIFFICULTY OF
CLASSIFYING ALL THE ELECTRICITY SOLD TO A PLANT ACCORDING TO THE
SPECIFIC OPERATIONS TO WHICH SUCH POWER WAS DEVOTED BY THE CONSUMER,
THE CONCLUSION THAT THE CONTROLLING FACTOR IS THE GENERAL NATURE OF A
BUSINESS AT A LOCATION ACCORDS WITH THE NATURAL MEANING TO BE GIVEN THE
WORDS EMPLOYED BY CONGRESS TO EXPRESS ITS PURPOSE. 

THE REGULATIONS INTERPRET THE SECTION IN LINE WITH THE LEGISLATIVE
HISTORY.  U.S. TREAS. REG. 46(1940 ED.)  SEC.  316.190(AS AMENDED BY
T.D. 5099), PRESENTLY APPLICABLE, PROVIDES IN PERTINENT PART: 

"SCOPE OF TAX.  - THE TAX IMPOSED BY SECTION 3411(A) OF THE INTERNAL
REVENUE CODE, AS AMENDED, APPLIES, EXCEPT AS PROVIDED HEREINAFTER, TO
ALL ELECTRICAL ENERGY SOLD FOR DOMESTIC OR COMMERCIAL CONSUMPTION AND
NOT FOR RESALE. 

"THE TERM 'ELECTRICAL ENERGY SOLD FOR DOMESTIC OR COMMERCIAL
CONSUMPTION' DOES NOT INCLUDE (1) ELECTRICAL ENERGY SOLD FOR INDUSTRIAL
CONSUMPTION, E.G., FOR USE IN MANUFACTURING, MINING, REFINING,
SHIPBUILDING, BUILDING CONSTRUCTION, IRRIGATION, ETC., OR (2) THAT SOLD
FOR OTHER USES WHICH LIKEWISE CAN NOT BE CLASSED AS DOMESTIC OR
COMMERCIAL, SUCH AS THE ELECTRICAL ENERGY USED BY ELECTRIC AND GAS
COMPANIES, WATERWORKS, TELEGRAPH, TELEPHONE, AND RADIO COMMUNICATION
COMPANIES, RAILROADS, OTHER SIMILAR COMMON CARRIERS, EDUCATIONAL
INSTITUTIONS NOT OPERATED FOR PRIVATE PROFIT, CHURCHES, AND CHARITABLE
INSTITUTIONS IN THEIR OPERATIONS AS SUCH.  HOWEVER, ELECTRICAL ENERGY
IS SUBJECT TO TAX IF SOLD FOR CONSUMPTION IN COMMERCIAL PHASES OF
INDUSTRIAL OR OTHER BUSINESSES, SUCH AS IN OFFICE BUILDINGS, SALES AND
DISPLAY ROOMS, RETAIL STORES, ETC., OR IN DOMESTIC PHASES, SUCH AS IN
DORMITORIES OR LIVING QUARTERS MAINTAINED BY EDUCATIONAL INSTITUTIONS,
CHURCHES, CHARITABLE INSTITUTIONS, OR OTHERS. 

"WHERE ELECTRICAL ENERGY IS SOLD TO A CONSUMER FOR TWO OR MORE
PURPOSES, THROUGH SEPARATE METERS, THE SPECIFIC USE FOR WHICH THE
ENERGY IS SOLD THROUGH EACH METER, I.E., WHETHER FOR DOMESTIC OR
COMMERCIAL CONSUMPTION, OR FOR OTHER USE, SHALL DETERMINE ITS TAXABLE
STATUS.  WHERE THE CONSUMER HAS ALL THE ELECTRICAL ENERGY CONSUMED AT A
GIVEN LOCATION FURNISHED THROUGH ONE METER, THE PREDOMINANT CHARACTER
OF THE BUSINESS CARRIED ON AT SUCH LOCATION SHALL DETERMINE THE
CLASSIFICATION OF CONSUMPTION FOR THE PURPOSES OF THIS TAX."  FN9 

THE LAST SENTENCE OF THIS REGULATION MAKES IT CLEAR THAT ALL
ELECTRICAL ENERGY FURNISHED TO A PREDOMINANTLY COMMERCIAL ESTABLISHMENT
THROUGH A SINGLE METER IS SUBJECT TO THE TAX ALTHOUGH PORTIONS OF SUCH
ENERGY ARE DEVOTED TO PURPOSES WHICH, CONSIDERED SEPARATELY, MIGHT BE
CLASSIFIED AS INDUSTRIAL.  FN10  WHILE THE REGULATION DOES NOT DEAL
WITH THE POINT, WE THINK IT OBVIOUS FROM THE LAST QUOTED PARAGRAPH THAT
WHERE THE ENERGY IS FURNISHED AT A SINGLE LOCATION THROUGH VARIOUS
METERS, ALTHOUGH NONE OF THEM ARE SHOWN TO CARRY CURRENT FOR
PREDOMINANTLY INDUSTRIAL USES, THE SAME RULE WOULD BE APPLIED.  THE
LAST SENTENCE OF THE REGULATION ADDS A QUALIFICATION, HOWEVER, WHICH
DIRECTS OUR ATTENTION, NOT NECESSARILY TO THE NATURE OF A BUSINESS AS A
WHOLE, BUT TO THE NATURE AS A WHOLE OF THE ACTIVITIES CARRIED ON "AT A
GIVEN LOCATION." 

WE ACCEPT THE LAST SENTENCE OF THE QUOTED REGULATION AS PROPER UNDER
THE STATUTE.  FN11  AS APPLIED TO THESE PLANTS WE THINK THAT THE
ELECTRICITY FURNISHED BY THE PETITIONER WAS "SOLD FOR COMMERCIAL
CONSUMPTION" AND CONSEQUENTLY WAS PROPERLY TAXED.  ADMITTEDLY THE
ACTIVITIES OF THESE CONSUMERS WOULD BE CONSIDERED COMMERCIAL IF THEY
DID NOT PASTEURIZE THE MILK PRIOR TO ITS SALE.  SUCH BUSINESS WOULD
ACCURATELY BE CALLED THE DISTRIBUTION OF FRESH MILK.  THE BUTTER AND
CREAM EXTRACTION APPEARS INCIDENTAL.  WE ARE NOT DEALING WITH A
"CREAMERY" IN THE SENSE OF A BUTTER OR CHEESE FACTORY.  WE AGREE WITH
THE COURTS BELOW THAT THE ADDITION OF PASTEURIZATION TO THE OTHER
ACTIVITIES DESCRIBED ABOVE DOES NOT CHANGE THE NATURE OF THE DAIRY
PLANTS' BUSINESS FROM COMMERCIAL TO INDUSTRIAL ANY MORE THAN WOULD THE
COOKING OF FOOD FOR SALE IN A RESTAURANT, OR THE CLEANING OF RAW FOOD
PRODUCTS PRIOR TO DISTRIBUTION OR SALE.  THE DISTRICT COURT FOUND THAT
"PASTEURIZATION PLAYS A MINOR PART IN THE TOTAL BUSINESS OF THE
DAIRIES," AND THAT "THE PREDOMINANT BUSINESS OF THE DAIRIES HERE
INVOLVED  ...  IS, AND WAS, THAT OF FLUID MILK DEALERS AND
DISTRIBUTORS."  FN12 

PETITIONER ARGUES THAT THE TEST APPLIED BY THE COURT OF APPEALS,
"WHETHER THE PREDOMINANT CHARACTER OF THE ENTERPRISE CARRIED ON BY SUCH
CONSUMER IS COMMERCIAL," IS ERRONEOUS AND CONTRARY TO THE REGULATION IN
THAT IT DIRECTS ATTENTION TO THE BUSINESS AS A WHOLE RATHER THAN TO THE
ACTIVITIES AT A GIVEN LOCATION.  WHILE THE LANGUAGE QUOTED IS
SUSCEPTIBLE TO THIS CRITICISM, THE VARIATION IS HARMLESS BECAUSE THE
PLANT ITSELF IS THE LOCATION OR THE FOCAL POINT OF ALL THE RELEVANT
ACTIVITIES OF EACH OF THESE CONSUMERS OF ELECTRICITY.  PASTEURIZATION
DOES NOT OCCUR AT A SEPARATE LOCATION, BUT AT THE SAME PLANT WHERE THE
MILK IS RECEIVED, WEIGHED, TESTED, COOLED, HOMOGENIZED, SEPARATED AND
BOTTLED.  THE MILK IS BROUGHT TO THIS PLANT WHEN PURCHASED, AND FROM
THE PLANT IT IS DISTRIBUTED TO CUSTOMERS.  THE FACT THAT MOST OF THE
SALES OR DELIVERIES OCCUR OFF THE PREMISES DOES NOT ALTER THE ESSENTIAL
FACT THAT ALL ACTIVITIES OCCUR IN OR PIVOT AROUND THE PLANT.    THUS,
THOUGH PASTEURIZING, WE ASSUME, IS PROCESSING AND THOUGH PROCESSING
SEPARATELY VIEWED MAY BE CONCEDED TO BE INDUSTRIAL,  FN13  WE CONCLUDE
THAT THE BUSINESS CONDUCTED BY THESE DAIRY PLANTS IS ESSENTIALLY
COMMERCIAL.  THE CONTRARY CONCLUSION REACHED IN UNITED STATES V. PUBLIC
SERVICE CO. OF COLORADO, 143 F.2D 79, MAY BE ASCRIBED TO THE FACT THAT
THERE THE COURT APPARENTLY LOOKED TO THE USE TO WHICH THE ELECTRICAL
ENERGY WAS DEVOTED RATHER THAN TO THE NATURE OF THE BUSINESS AT A GIVEN
LOCATION.  FN14    RULINGS OF THE BUREAU OF INTERNAL REVENUE SUPPORT
OUR CONCLUSION.  IN 1932, S.T. 518 STATED THAT, 

"ELECTRICAL ENERGY FURNISHED FOR CONSUMPTION BY BOTTLING WORKS, MILK
COMPANIES, OR CREAMERIES ENGAGED IN THE PASTEURIZATION AND BOTTLING OF
MILK, AND IN THE MANUFACTURE OF BUTTER, BUTTERMILK, CHOCOLATE MILK, AND
COTTAGE CHEESE, IS NOT FURNISHED FOR DOMESTIC OR COMMERCIAL CONSUMPTION
..."  FN15 

APPARENTLY, HOWEVER, THE BUREAU INTENDED THIS RULING TO APPLY ONLY TO
THOSE PLANTS WHOSE BUSINESS WAS PREDOMINANTLY PASTEURIZATION AND THE
MANUFACTURE OF MILK BY-PRODUCTS, BECAUSE S.T. 637, ISSUED THE FOLLOWING
YEAR, CONTAINED THE FOLLOWING STATEMENT: 

"A DAIRY WHICH OBTAINS MILK AND CONVERTS IT INTO USE FOR RETAIL
PURPOSES IS HELD TO BE ENGAGED IN A BUSINESS COMMERCIAL IN CHARACTER. 
ELECTRICAL ENERGY USED IN SUCH OPERATIONS WILL BE SUBJECT TO TAX." 
FN16 

IN CLARIFICATION OF THESE TWO RULINGS THE BUREAU EXPLAINED: 

"ELECTRICAL ENERGY FURNISHED A COMMERCIAL DAIRY OR MILK COMPANY WHICH
MERELY PRODUCES OR PURCHASES RAW MILK IN BULK AND PASTEURIZES IT FOR
SALE EITHER IN BULK OR BOTTLED QUANTITIES, WHOSE ACTIVITIES CONSIST
PRINCIPALLY IN THE HANDLING, DISTRIBUTION AND SALE OF MILK, IS ALSO
SUBJECT TO THE TAX. 

"IT IS ONLY ELECTRICAL ENERGY THAT IS FURNISHED FOR DIRECT
CONSUMPTION BY DAIRIES WHICH IN ADDITION TO PASTEURIZING AND BOTTLING
MILK ARE ALSO ENGAGED IN ALL THE ESSENTIAL MANUFACTURING PROCESSES
NECESSARY FOR THE PRODUCTION OF DAIRY PRODUCTS, SUCH AS THE
MANUFACTURING OF BUTTER, CHEESE AND OTHER DAIRY PRODUCTS, FOR SALE ON
THE OPEN MARKET AS AN ARTICLE OF COMMERCE, THAT IS NOT SUBJECT TO THE
TAX."  FN17 

THUS WE HOLD THAT ELECTRICAL ENERGY SUPPLIED TO THESE DAIRY PLANTS
THROUGH SINGLE METERS, OR THROUGH MORE THAN ONE BUT WITHOUT
DIFFERENTIATION AS TO USE, IS ENERGY SOLD FOR COMMERCIAL CONSUMPTION. 
AFFIRMED. 

FN1  AMENDED BY THE REVENUE ACT OF 1941, C. 412, 55 STAT. 687, 707,
SEC. 521(A)(19), TO CHANGE THE THREE PERCENT TAX TO THREE AND ONE-THIRD
PERCENT. 

FN2  26 U.S.C. SEC. 3411. 

FN3  SEE, INFRA, P. 180, ET SEQ. 

FN4  A FEW OF THE CONSUMERS OF ELECTRICITY HERE INVOLVED PRODUCE
THEIR OWN MILK. 

FN5  ONE OF THE PLANTS PASTEURIZES BY THE SO-CALLED "FLASH METHOD,"
HEATING THE MILK TO 161 DEGREES F. FOR 16 SECONDS AND RAPIDLY COOLING
IT TO 32 DEGREES F. 

FN6  A MINOR PROPORTION OF THE MILK PURCHASED BY THESE PLANTS IS
MANUFACTURED INTO BUTTER, CHEESE, OR OTHER BY-PRODUCTS.  AN UNDISCLOSED
AMOUNT OF THIS MILK IS SEPARATED FROM THE CREAM IT CONTAINS; SOME IS
ALSO HOMOGENIZED. 

FN7  H.R. CONFERENCE REP. NO. 1492, 72D CONG., 1ST SESS., P. 22;
SENATOR HARRISON, 77 CONG. REC. 3212-14,3215. 

FN8  THE LEGISLATIVE EXPLANATIONS TREAT OF BUSINESS CONSUMERS AS
UNITS AND DO NOT DIFFERENTIATE AS TO USE WITHIN THE UNITS. 

SENATOR HARRISON, CHAIRMAN OF THE SENATE FINANCE COMMITTEE, WHICH
REPORTED THE BILL, SAID: 

"I AM TELLING SENATORS NOTHING NEW WHEN I REMIND THEM THAT WE HAD A
FIGHT HERE IN 1932 OVER THE IMPOSITION OF THIS TAX.  THE SENATE IMPOSED
A 3-PERCENT ELECTRIC-ENERGY TAX, AND IT WAS FINALLY ADOPTED, TO BE
COLLECTED FROM THE CONSUMER OF ELECTRIC ENERGY.  WE APPLIED THAT ONLY
ON DOMESTIC AND COMMERCIAL ENERGY; THAT IS, ELECTRIC ENERGY USED IN
STORES AND DWELLINGS THAT ARE CLASSIFIED AS COMMERCIAL AND DOMESTIC. 
THERE WAS NO TAX IN THE 1932 ACT IMPOSED UPON ENERGY EMPLOYED IN
INDUSTRY."  77 CONG. REC. 3212-13. 

SENATOR COUZENS, A MEMBER OF A SUBCOMMITTEE OF THE SENATE FINANCE
COMMITTEE, WHICH WAS CONSTITUTED TO CONSIDER THE ELECTRICAL ENERGY TAX,
SAID:  "I MEAN THEY ELIMINATED THAT FEATURE OF THE TAX; THEY ELIMINATED
THE TAX ON ELECTRICAL ENERGY SOLD TO MANUFACTURING PLANTS AND LEFT THE
TAX ON ELECTRICITY USED COMMERCIALLY, THAT IS BY STORES AND ON
ELECTRICITY USED FOR DOMESTIC PURPOSES ...."  77 CONG. REC. 3218. 

FN9  THIS REGULATION WAS SUBSTANTIALLY THE SAME IN ITS EARLIER
VERSIONS.  U.S. TREAS. REG. 42, ART. 40(1932); T.D. 4342, XI-2 CUM.
BULL.  495(1932); T.D. 4393, XII-2 CUM. BULL.  322(1933).  THE QUOTED
VERSION, HOWEVER, OMITTED THE WORD "PROCESSING," WHICH WAS FORMERLY
INCLUDED IN THE LIST OF ACTIVITIES EXEMPLIFYING INDUSTRIAL
CONSUMPTION.  WE DO NOT CONSIDER THIS DELETION SIGNIFICANT FOR PURPOSES
OF THIS CASE. 

FN10  CF. ST. LOUIS REFRIGERATING & COLD STORAGE CO. V. UNITED
STATES, 95 CT. CL. 694, 43 F.SUPP.  476; FULTON MARKET COLD STORAGE CO.
V. UNITED STATES, 95 CT. CL. 710, 43 F.SUPP.  485. 

FN11  WE DO NOT INTEND BY THESE WORDS OF LIMITATION TO APPROVE OR
DISAPPROVE OTHER PROVISIONS.  THERE ARE AMBIGUITIES IN THIS SECTION OF
THE REGULATION.  IN THE SECOND PARAGRAPH, WITHOUT REFERENCE TO SEPARATE
METERS, IT HOLDS THAT ENERGY USED IN THE COMMERCIAL PHASES OF AN
INDUSTRIAL BUSINESS IS TAXABLE.  THE REVERSE WOULD SEEM TO FOLLOW AS TO
INDUSTRIAL PHASES OF A COMMERCIAL BUSINESS.  YET THE THIRD PARAGRAPH
ALLOWS THE AVOIDANCE OF SUCH A TAX ON INDUSTRIAL USE ONLY BY THE
EMPLOYMENT OF SEPARATE METERS. 

FN12  FOR STATE CASES TO THE EFFECT THAT THIS BUSINESS IS PRIMARILY
COMMERICAL, SEE E.G. CITY OF LOUISVILLE V. EWING VON-ALLMEN D. CO., 268
KY. 652, 105 S.W.2D 801; PEOPLE EX REL. E.S. DAIRY CO. V. SOHMER, 218
N.Y. 199, 112 N.E. 755; RICHMOND V. DAIRY CO., 156 VA. 63, 157 S.E.
728.  BUT SEE DAIRY ASSN. V. BD. OF TAX ADMIN., 302 MICH. 643, 5 N.W.2D
516. 

FN13  SEE NOTE 9, SUPRA. 

FN14  "THE ELECTRICAL ENERGY WAS NOT USED IN THE COMMERCIAL PHASE OF
THE DAIRYING ENTERPRISE, BUT IN THE PROCESSING OR INDUSTRIAL PHASE OF
THE ENTERPRISE."  143 F.2D 79, 82. 

FN15  XI-2 CUM. BULL.  498(1932). 

FN16  XII-1 CUM. BULL.  409, 410(1933). 

FN17  BUREAU LETTER, DATED MAY 13, 1933(SYMBOLS MT:  ST:  BHF)(333
C.C.H. P6266), 4 C.C.H. STANDARD FEDERAL TAX REPORTER P2633G
.175(1949). 
..END :









MCCOMB V. JACKSONVILLE PAPER CO., 336 U.S. 187 


NO. 110.  ARGUED DECEMBER 14-15, 1948.  - DECIDED FEBRUARY 14, 1949.  -
167 F.2D 448, REVERSED. 


A DECREE OF THE DISTRICT COURT IN A PROCEEDING UNDER THE FAIR LABOR
STANDARDS ACT ENJOINED RESPONDENTS FROM VIOLATING THE MINIMUM WAGE,
OVERTIME, AND RECORD-KEEPING PROVISIONS OF THE ACT.  RESPONDENTS TOOK
NO APPEAL.  THREE YEARS LATER THE ADMINISTRATOR INSTITUTED A CIVIL
CONTEMPT PROCEEDING ALLEGING VIOLATIONS OF THE DECREE AND PRAYING THAT
RESPONDENTS, IN ORDER TO PURGE THEMSELVES OF CONTEMPT, BE REQUIRED TO
MAKE PAYMENT OF UNPAID STATUTORY WAGES TO THE EMPLOYEES AFFECTED. 
HELD: 

1.  THE FACT THAT THE VIOLATIONS OF THE DECREE WERE NOT "WILLFUL"
DOES NOT ABSOLVE RESPONDENTS FROM LIABILITY FOR CIVIL CONTEMPT.  P.
191. 

(A)  THE GRANT OR WITHHOLDING OF RELIEF IN A CIVIL CONTEMPT
PROCEEDING IS NOT WHOLLY DISCRETIONARY.  THE PRIVATE OR PUBLIC RIGHTS
THAT THE DECREE SOUGHT TO PROTECT ARE AN IMPORTANT MEASURE OF THE
REMEDY.  P. 191. 

2.  THE FACT THAT THE UNLAWFUL PLAN OR SCHEME WHICH RESPONDENTS
ADOPTED WAS NOT SPECIFICALLY ENJOINED BY THE DECREE DOES NOT RENDER
THEM IMMUNE FROM LIABILITY IN A CIVIL CONTEMPT PROCEEDING.  PP. 191
193. 

3.  THE DISTRICT COURT HAD POWER TO ORDER RESPONDENTS, IN ORDER TO
PURGE THEIR CONTEMPT, TO PAY TO THE AFFECTED EMPLOYEES AMOUNTS OF WAGES
WHICH WERE UNPAID IN VIOLATION OF THE ACT.  PP. 193-195. 

(A)  ALTHOUGH THE DECREE DID NOT COMPUTE THE WEEKLY AND MONTHLY
AMOUNT DUE EACH EMPLOYEE UNDER THE CORRECT CONSTRUCTION OF THE ACT, AND
DID NOT CONTAIN THE NAMES OF THE PAYEES, IT DID PROVIDE A FORMULA,
COUCHED IN TERMS OF THE ACT, WHEREBY THE AMOUNTS COULD READILY BE
ASCERTAINED.  P. 194. 

(B)  IT IS IMMATERIAL THAT A SUIT COULD HAVE BEEN BROUGHT BY THE
EMPLOYEES TO COLLECT THE AMOUNTS DUE; OR THAT IN THIS PROCEEDING THE
ADMINISTRATOR IS THE COMPLAINANT AND THE BACK WAGES GO TO THE
EMPLOYEES.  PP. 194-195. 

MCCOMB, WAGE AND HOUR ADMINISTRATOR, V. JACKSONVILLE PAPER CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

THE WAGE AND HOUR ADMINISTRATOR INSTITUTED IN THE DISTRICT COURT A
CIVIL CONTEMPT PROCEEDING AGAINST RESPONDENTS, ALLEGING VIOLATIONS OF A
DECREE WHICH ENJOINED RESPONDENTS FROM VIOLATING THE MINIMUM WAGE,
OVERTIME, AND RECORD-KEEPING PROVISIONS OF THE FAIR LABOR STANDARDS
ACT.  THE DISTRICT COURT HELD THAT THERE WAS NO PROOF OF CIVIL CONTEMPT
BECAUSE THERE WAS NO "WILLFUL" VIOLATION OF THE DECREE, AND THAT IT HAD
NO POWER ON THE APPLICATION OF THE ADMINISTRATOR TO ENFORCE COMPLIANCE
WITH ITS FORMER DECREE BY ORDERING THE PAYMENT OF UNPAID STATUTORY
WAGES.  IT CONSIDERED THE APPLICATION OF THE ADMINISTRATOR AS AN
AMENDED COMPLAINT SEEKING A BROADENING OF THE PREVIOUS DECREE AND
ENTERED SUCH AN INJUNCTION.  69 F.SUPP.  599.  THE COURT OF APPEALS
AFFIRMED.  167 F.2D 448.  THIS COURT GRANTED CERTIORARI.  335 U.S.
809.  REVERSED, P. 195. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CIVIL CONTEMPT PROCEEDING ARISING OUT OF WALLING V.
JACKSONVILLE PAPER CO., 317 U.S. 564, WHICH WE DECIDED JANUARY 18,
1943.  THE DISTRICT COURT HAD HELD THAT NONE OF RESPONDENTS' EMPLOYEES
IN SPECIFIED CLASSES WERE COVERED BY THE FAIR LABOR STANDARDS ACT.  52
STAT. 1060, 29 U.S.C. SEC. 201.  WE SUSTAINED A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS WHICH REVERSED THE DISTRICT COURT, MODIFYING IT
SLIGHTLY TO INCLUDE A LARGER CLASS OF EMPLOYEES THAN THE UNITED STATES
COURT OF APPEALS HAD HELD TO BE COVERED. 

ON REMAND THE DISTRICT COURT, WITHOUT A FURTHER HEARING, ENTERED A
DECREE ENJOINING RESPONDENTS FROM VIOLATING THE ACT IN ANY OF THE
FOLLOWING PARTICULARS:  (1) BY PAYING THE DESIGNATED CLASSES OF
EMPLOYEES LESS THAN 30[ AN HOUR FROM THE DATE OF THE JUDGMENT TO
OCTOBER 24, 1945, OR LESS THAN 40[ AN HOUR THEREAFTER, EXCEPT AS
PERMITTED BY ORDERS OF THE ADMINISTRATOR UNDER SEC. 8 OR SEC. 14 OF THE
ACT; (2) BY EMPLOYING SUCH EMPLOYEES FOR A WORKWEEK LONGER THAN 40
HOURS UNLESS THEY RECEIVE COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40
HOURS IN THE WORKWEEK AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES
THE REGULAR RATE AT WHICH THEY ARE EMPLOYED; AND (3) BY FAILING TO KEEP
AND PRESERVE RECORDS AS PRESCRIBED BY THE ADMINISTRATOR, PARTICULARLY
RECORDS OF THE HOURS WORKED EACH WORKDAY AND EACH WORKWEEK BY EACH OF
THE EMPLOYEES AND OF THE TOTAL WAGES PAID TO EACH FOR EACH WORKWEEK. 

RESPONDENT TOOK NO APPEAL FROM THIS ORDER.  THIS WAS IN 1943.  IN
1946 THE ADMINISTRATOR INSTITUTED THIS CONTEMPT PROCEEDING ALLEGING
THAT RESPONDENTS HAD NOT COMPLIED WITH THE MINIMUM WAGE, OVERTIME, AND
RECORDKEEPING PROVISIONS OF THE JUDGMENT IN MANY SPECIFIED RESPECTS. 
HE PRAYED THAT RESPONDENTS BE REQUIRED TO TERMINATE THEIR CONTINUING
VIOLATIONS AND IN ORDER TO PURGE THEMSELVES OF THEIR CONTEMPTS TO MAKE
PAYMENT OF THE AMOUNTS OF UNPAID WAGES DUE THE AFFECTED EMPLOYEES.  THE
DISTRICT COURT FOUND VIOLATIONS OF THE PROVISIONS OF THE DECREE.  IT
FOUND THAT (1) RESPONDENTS HAD SET UP A COMPLETELY FALSE AND FICTITIOUS
METHOD OF COMPUTING COMPENSATION WITHOUT REGARD TO THE HOURS ACTUALLY
WORKED WHICH WERE UNLAWFUL UNDER THE ACT; (2) RESPONDENTS HAD ADOPTED A
PLAN WHICH GAVE THE EMPLOYEES A WAGE INCREASE IN THE GUISE OF A BONUS
AND YET EXCLUDED THAT INCREASE FROM THE REGULAR RATE OF PAY FOR THE
PURPOSE OF COMPUTING OVERTIME; (3) RESPONDENTS HAD CLASSIFIED SOME
EMPLOYEES AS EXECUTIVE OR ADMINISTRATIVE EMPLOYEES IN PLAIN VIOLATION
OF THE REGULATIONS OF THE ADMINISTRATOR ADOPTED UNDER SEC. 13(A)(1) OF
THE ACT; AND (4) ONE OF THE RESPONDENTS HAD EMPLOYED PIECEWORKERS IN
EXCESS OF THE MAXIMUM WORKWEEK WITHOUT PAYING THEM OVERTIME
COMPENSATION.  FN1 

THE DISTRICT COURT HELD THAT A CIVIL CONTEMPT REQUIRED A "WILFUL"
VIOLATION OF A DECREE; AND THAT THERE WAS IN THIS CASE NO SHOWING OF
ANY "WILFUL" VIOLATION OF ANY "SPECIFIC" PROVISION OF THE FORMER DECREE
"PROHIBITING THE DOING OF ANY SPECIFIC THING."  THE DISTRICT COURT
FURTHER HELD THAT IT HAD NO POWER ON THE APPLICATION OF THE
ADMINISTRATOR TO ENFORCE COMPLIANCE WITH ITS FORMER DECREE BY ORDERING
THE PAYMENT OF UNPAID STATUTORY WAGES.  IT ACCORDINGLY CONSIDERED THE
APPLICATION OF THE ADMINISTRATOR AS AN AMENDED COMPLAINT SEEKING A
BROADENING OF THE PREVIOUS DECREE AND ENTERED SUCH AN INJUNCTION.  69
F.SUPP.  599. 

ALL PARTIES APPEALED.  THE UNITED STATES COURT OF APPEALS AFFIRMED
THE JUDGMENT.  IT RULED THAT RESPONDENTS HAD VIOLATED THE PROVISIONS OF
THE DECREE COUCHED IN TERMS OF THE ACT IN THE RESPECTS FOUND BY THE
DISTRICT COURT.  IT ALSO HELD THAT THE DISTRICT COURT WAS WARRANTED IN
CONCLUDING THAT THERE WAS NO "WILFUL CONTEMPT" SINCE NEITHER THE LAW
NOR THE INJUNCTION SPECIFICALLY REFERRED TO OR CONDEMNED THE PRACTICES
WHICH WERE FOUND TO VIOLATE THE ACT.  167 F.2D 448. 

THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE OF THE IMPORTANCE OF THE PROBLEM IN THE ADMINISTRATION
OF THE ACT. 

FIRST.  THE ABSENCE OF WILFULNESS DOES NOT RELIEVE FROM CIVIL
CONTEMPT.  CIVIL AS DISTINGUISHED FROM CRIMINAL CONTEMPT IS A SANCTION
TO ENFORCE COMPLIANCE WITH AN ORDER OF THE COURT OR TO COMPENSATE FOR
LOSSES OR DAMAGES SUSTAINED BY REASON OF NONCOMPLIANCE.  SEE UNITED
STATES V. UNITED MINE WORKERS, 330 U.S. 258, 303-304; PENFIELD CO. V.
SECURITIES & EXCHANGE COMMISSION, 330 U.S. 585, 590; MAGGIO V. ZEITZ,
333 U.S. 56, 68.  SINCE THE PURPOSE IS REMEDIAL, IT MATTERS NOT WITH
WHAT INTENT THE DEFENDANT DID THE PROHIBITED ACT.  FN2  THE DECREE WAS
NOT FASHIONED SO AS TO GRANT OR WITHHOLD ITS BENEFITS DEPENDENT ON THE
STATE OF MIND OF RESPONDENTS.  IT LAID ON THEM A DUTY TO OBEY SPECIFIED
PROVISIONS OF THE STATUTE.  AN ACT DOES NOT CEASE TO BE A VIOLATION OF
A LAW AND OF A DECREE MERELY BECAUSE IT MAY HAVE BEEN DONE INNOCENTLY. 
THE FORCE AND VITALITY OF JUDICIAL DECREES DERIVE FROM MORE ROBUST
SANCTIONS.  AND THE GRANT OR WITHHOLDING OF REMEDIAL RELIEF IS NOT
WHOLLY DISCRETIONARY WITH THE JUDGE, AS MR. JUSTICE BRANDEIS WROTE FOR
A UNANIMOUS COURT IN UNION TOOL CO. V. WILSON, 259 U.S. 107, 111-112. 
THE PRIVATE OR PUBLIC RIGHTS THAT THE DECREE SOUGHT TO PROTECT ARE AN
IMPORTANT MEASURE OF THE REMEDY. 

SECOND.  AS WE HAVE NOTED, THE DECREE DIRECTED RESPONDENTS TO OBEY
THE PROVISIONS OF THE ACT DEALING WITH MINIMUM WAGES, OVERTIME, AND THE
KEEPING OF RECORDS.  THERE WAS NO APPEAL FROM IT. BY ITS TERMS IT
ENJOINED ANY PRACTICES WHICH WERE VIOLATIONS OF THOSE STATUTORY
PROVISIONS.  DECREES OF THAT GENERALITY ARE OFTEN NECESSARY TO PREVENT
FURTHER VIOLATIONS WHERE A PROCLIVITY FOR UNLAWFUL CONDUCT HAS BEEN
SHOWN.  SEE MAY STORES CO. V. LABOR BOARD, 326 U.S. 376, 390, 391;
UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 186. 
RESPONDENTS' RECORD OF CONTINUING AND PERSISTENT VIOLATIONS OF THE ACT
WOULD INDICATE THAT THAT KIND OF A DECREE WAS WHOLLY WARRANTED IN THIS
CASE.  YET IF THERE WERE EXTENUATING CIRCUMSTANCES OR IF THE DECREE WAS
TOO BURDENSOME IN OPERATION, THERE WAS A METHOD OF RELIEF APART FROM AN
APPEAL.  RESPONDENTS COULD HAVE PETITIONED THE DISTRICT COURT FOR A
MODIFICATION, CLARIFICATION OR CONSTRUCTION OF THE ORDER.  SEE REGAL
KNITWEAR CO. V. LABOR BOARD, 324 U.S. 9, 15.  BUT RESPONDENTS DID NOT
TAKE THAT COURSE EITHER.  THEY UNDERTOOK TO MAKE THEIR OWN
DETERMINATION OF WHAT THE DECREE MEANT.  THEY KNEW THEY ACTED AT THEIR
PERIL.  FOR THEY WERE ALERTED BY THE DECREE AGAINST ANY VIOLATION OF
SPECIFIED PROVISIONS OF THE ACT. 

IT DOES NOT LIE IN THEIR MOUTHS TO SAY THAT THEY HAVE AN IMMUNITY
FROM CIVIL CONTEMPT BECAUSE THE PLAN OR SCHEME WHICH THEY ADOPTED WAS
NOT SPECIFICALLY ENJOINED.  SUCH A RULE WOULD GIVE TREMENDOUS IMPETUS
TO THE PROGRAM OF EXPERIMENTATION WITH DISOBEDIENCE OF THE LAW WHICH WE
CONDEMNED IN MAGGIO V. ZEITZ, SUPRA, AT 69.  THE INSTANT CASE IS AN
EXCELLENT ILLUSTRATION OF HOW IT COULD OPERATE TO PREVENT
ACCOUNTABILITY FOR PERSISTENT CONTUMACY.  CIVIL CONTEMPT IS AVOIDED
TODAY BY SHOWING THAT THE SPECIFIC PLAN ADOPTED BY RESPONDENTS WAS NOT
ENJOINED.  HENCE A NEW DECREE IS ENTERED ENJOINING THAT PARTICULAR
PLAN.  THEREAFTER THE DEFENDANTS WORK OUT A PLAN THAT WAS NOT
SPECIFICALLY ENJOINED.  IMMUNITY IS ONCE MORE OBTAINED BECAUSE THE NEW
PLAN WAS NOT SPECIFICALLY ENJOINED.  AND SO A WHOLE SERIES OF WRONGS IS
PERPETRATED AND A DECREE OF ENFORCEMENT GOES FOR NAUGHT. 

THAT RESULT NOT ONLY PROCLAIMS THE NECESSITY OF DECREES THAT ARE NOT
SO NARROW AS TO INVITE EASY EVASION; IT ALSO EMPHASIZES THE DANGER IN
THE ATTITUDE EXPRESSED BY THE COURTS BELOW THAT THE REMEDIAL BENEFITS
OF A DECREE WILL BE WITHHELD WHERE THE PRECISE ARRANGEMENT WORKED OUT
TO DISCHARGE THE DUTY TO PAY WHICH BOTH THE STATUTE AND THE DECREE
IMPOSED WAS NOT SPECIFICALLY ENJOINED. 

WE NEED NOT IMPEACH THE FINDINGS OF THE LOWER COURTS THAT RESPONDENTS
HAD NO PURPOSE TO EVADE THE DECREE, IN ORDER TO HOLD THAT THEIR
VIOLATIONS OF IT WARRANT THE IMPOSITION OF SANCTIONS.  THEY TOOK A
CALCULATED RISK WHEN UNDER THE THREAT OF CONTEMPT THEY ADOPTED MEASURES
DESIGNED TO AVOID THE LEGAL CONSEQUENCES OF THE ACT.  RESPONDENTS ARE
NOT UNWITTING VICTIMS OF THE LAW.  HAVING BEEN CAUGHT IN ITS TOILS,
THEY WERE ENDEAVORING TO EXTRICATE THEMSELVES.  THEY KNEW FULL WELL THE
RISK OF CROSSING THE FORBIDDEN LINE.  ACCORDINGLY WHERE AS HERE THE AIM
IS REMEDIAL AND NOT PUNITIVE, THERE CAN BE NO COMPLAINT THAT THE BURDEN
OF ANY UNCERTAINTY IN THE DECREE IS ON RESPONDENTS' SHOULDERS. 

THIRD.  WE HAVE NO DOUBTS CONCERNING THE POWER OF THE DISTRICT COURT
TO ORDER RESPONDENTS, IN ORDER TO PURGE THEMSELVES OF CONTEMPT, TO PAY
THE DAMAGES CAUSED BY THEIR VIOLATIONS OF THE DECREE.  WE CAN LAY TO
ONE SIDE THE QUESTION WHETHER THE ADMINISTRATOR, WHEN SUING TO RESTRAIN
VIOLATIONS OF THE ACT, IS ENTITLED TO A DECREE OF RESTITUTION FOR
UNPAID WAGES.  CF. PORTER V. WARNER HOLDING CO., 328 U.S. 395.  WE ARE
DEALING HERE WITH THE POWER OF A COURT TO GRANT THE RELIEF THAT IS
NECESSARY TO EFFECT COMPLIANCE WITH ITS DECREE.  THE MEASURE OF THE
COURT'S POWER IN CIVIL CONTEMPT PROCEEDINGS IS DETERMINED BY THE
REQUIREMENTS OF FULL REMEDIAL RELIEF.  THEY MAY ENTAIL THE DOING OF A
VARIETY OF ACTS, SUCH AS THE PRODUCTION OF BOOKS.  PENFIELD CO. V.
SECURITIES & EXCHANGE COMMISSION, SUPRA.  THEY MAY ALSO REQUIRE THE
PAYMENT OF MONEY AS IN THE ALIMONY CASES.  SEE GOMPERS V. BUCKS S. & R.
CO., 221 U.S. 418, 442; ORIEL V. RUSSELL, 278 U.S. 358, 364-365. 

THE DECREE THAT WAS VIOLATED IN THE PRESENT CASE RELATES TO THE
PAYMENT OF WAGES AND OVERTIME PAY REQUIRED BY SECS. 6 AND 7 OF THE
ACT.  IT DOES NOT, HOWEVER, COMPUTE THE WEEKLY AND MONTHLY AMOUNT THAT
IS DUE EACH EMPLOYEE UNDER THE CORRECT CONSTRUCTION OF THE ACT.  NOR
DOES IT CONTAIN THE NAMES OF THE PAYEES.  BUT IT PROVIDES THE FORMULA
BY WHICH THE AMOUNTS CAN BE SIMPLY COMPUTED.  IF IT HAD GONE ONE STEP
FURTHER AND MADE THE COMPUTATION, LISTING THE AMOUNTS DUE EACH
EMPLOYEE, THE CASE WOULD THEN BE ON ALL FOURS WITH THE ALIMONY CASES. 
YET THE CIRCUMSTANCE THAT CHANGING PAYROLLS AND FLUCTUATING RATES OF
PAY MAKE THAT IMPRACTICAL IN THIS TYPE OF CASE DOES NOT MARK A MATERIAL
DIFFERENCE. 

THE DIRECTION OF THE COURT WAS THAT RESPONDENTS MAKE PAYMENTS OF
WAGES TO THEIR EMPLOYEES PURSUANT TO A PRESCRIBED FORMULA.  IF THE
COURT IS POWERLESS TO REQUIRE THE PRESCRIBED PAYMENTS TO BE MADE, IT
HAS LOST THE MOST EFFECTIVE SANCTION FOR ITS DECREE AND A PREMIUM HAS
BEEN PLACED ON VIOLATIONS.  THE FACT THAT ANOTHER SUIT MIGHT BE BROUGHT
TO COLLECT THE PAYMENTS  FN3  IS, OF COURSE, IMMATERIAL.  FOR THE COURT
NEED NOT SIT SUPINELY BY WAITING FOR SOME LITIGANT TO TAKE THE
INITIATIVE.  VINDICATION OF ITS AUTHORITY THROUGH ENFORCEMENT OF ITS
DECREE DOES NOT DEPEND ON SUCH WHIMSICAL OR FORTUITOUS CIRCUMSTANCES. 
THE FACT THAT THE ADMINISTRATOR IS THE COMPLAINANT FN4  AND THAT THE
BACK WAGES GO TO THE EMPLOYEES IS NOT MATERIAL.  IT IS THE POWER OF THE
COURT WITH WHICH WE ARE DEALING - THE POWER OF THE COURT TO ENFORCE
COMPLIANCE WITH THE INJUNCTION WHICH THE ACT AUTHORIZES,  FN5  WHICH
THE COURT HAS ISSUED, AND WHICH RESPONDENTS HAVE LONG DISOBEYED. 
REVERSED. 

FN1  IT ALSO FOUND VIOLATIONS OF THE RECORD-KEEPING PROVISIONS OF THE
DECREE, SOME OF WHICH IT HELD TO BE TRIVIAL AND OTHERS OF WHICH HAD
BEEN DISCONTINUED. 

FN2  SEE 2 HIGH ON INJUNCTIONS (4TH ED., 1905) SECS. 1416 ET SEQ. 

FN3  SECTION 16(B) AUTHORIZES SUITS BY EMPLOYEES TO RECOVER WAGES AND
OVERTIME UNLAWFULLY WITHHELD. 

FN4  IT IS THE ADMINISTRATOR WHO IS DIRECTED AND AUTHORIZED BY SEC.
11(A) OF THE ACT TO BRING ACTIONS TO RESTRAIN VIOLATIONS OF THE ACT OF
THE CHARACTER INVOLVED HERE.  CF. INLAND STEEL CO. V. UNITED STATES,
306 U.S. 153, 157; UNITED STATES V. MORGAN, 307 U.S. 183, 193-194;
COMMISSION V. BRASHEAR LINES, 312 U.S. 621, 628-630. 

FN5  SEE SEC. 17. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE JACKSON CONCURS,
DISSENTING. 

OBEDIENCE MUST OF COURSE BE SECURED FOR THE COMMAND OF A COURT.  TO
SECURE SUCH OBEDIENCE IS THE FUNCTION OF A PROCEEDING FOR CONTEMPT. 
BUT COURTS SHOULD BE EXPLICIT AND PRECISE IN THEIR COMMANDS AND SHOULD
ONLY THEN BE STRICT IN EXACTING COMPLIANCE.  TO BE BOTH STRICT AND
INDEFINITE IS A KIND OF JUDICIAL TYRANNY.    IN SUCH A CASE AS THIS,
ONLY AFTER AN ADMINISTRATIVE ORDER HAS BEEN FORMULATED AND A COURT HAS
ADJUDICATED THAT THE ORDER IS WITHIN THE ADMINISTRATOR'S STATUTORY
AUTHORITY DOES THE COMMAND OF A COURT COME INTO EXISTENCE, DISOBEDIENCE
OF WHICH MAY BE PUNISHED AS CONTEMPT.  FOR VIOLATION OF THE FAIR LABOR
STANDARDS ACT AS SUCH, ONE MAY BE MADE TO SUFFER CIVIL PENALTIES OR
IMPRISONMENT, BUT THE LATTER ONLY AFTER CONVICTION BY A JURY.  FOR
VIOLATION OF THE COMMAND OF AN INJUNCTION ISSUED UNDER THE ACT,
HOWEVER, HE MAY NOT ONLY BE EXPOSED TO MORE SEVERE CIVIL PENALTIES THAN
THE ACT BY ITS OWN TERMS IMPOSES, BUT MADE TO SUFFER IMPRISONMENT
WITHOUT BENEFIT OF JURY TRIAL.  IT IS FOR SUCH REASONS THAT THIS COURT
HAS INDICATED AGAIN AND AGAIN THAT A STATUTE CANNOT PROPERLY BE MADE
THE BASIS OF CONTEMPT PROCEEDINGS MERELY BY INCORPORATING A REFERENCE
TO ITS BROAD TERMS INTO A COURT ORDER.  SEE, E.G., SWIFT & CO. V.
UNITED STATES, 196 U.S. 375, 396; NEW YORK, N.H. & H.R. CO. V.
INTERSTATE COMMERCE COMM'N, 200 U.S. 361, 404; LABOR BOARD V. EXPRESS
PUBLISHING COMPANY, 312 U.S. 426, 435.  THESE CONSIDERATIONS BECOME
INCREASINGLY IMPORTANT AS THERE IS INCREASING USE OF INJUNCTIONS FOR
THE ENFORCEMENT OF ADMINISTRATIVE ORDERS AND STATUTORY DUTIES. 

THESE ARE GENERAL PRINCIPLES BUT THEIR APPLICATION GOVERNED THE
DECISIONS OF THE DISTRICT COURT AND OF THE COURT OF APPEALS; THEY
SHOULD CONTROL THE DECISION HERE.  THE TWO LOWER COURTS FOUND THAT
WHILE THE PRACTICES NOW COMPLAINED OF BY THE ADMINISTRATOR OF THE WAGE
AND HOUR DIVISION OF THE DEPARTMENT OF LABOR CONSTITUTED VIOLATIONS OF
THE FAIR LABOR STANDARDS ACT, THEY WERE NOT ON ANY FAIR CONSIDERATION
COVERED BY THE INJUNCTION, CONTEMPT OF WHICH IS NOW CHARGED.  THE
INJUNCTION UNDERLYING THIS PROCEEDING TAKES EIGHT PAGES OF A PRINTED
RECORD AND PARTICULARIZES IN GREAT DETAIL THE VIOLATIONS WHICH WERE
ENJOINED.  IT ALSO CONTAINS OMNIBUS CLAUSES PROHIBITING VIOLATIONS OF
THE FAIR LABOR STANDARDS ACT.  ON FULL CONSIDERATION, THE DISTRICT
COURT TREATED THE APPLICATION FOR AN ADJUDICATION OF CIVIL CONTEMPT "AS
AN AMENDED COMPLAINT SEEKING A BROADENING OF THE INJUNCTIVE ORDERS
HERETOFORE ENTERED IN THIS CASE, AND WILL ENTER IN AMENDED JUDGMENT
ENJOINING DEFENDANTS FROM VIOLATING THE PROVISIONS OF THE FAIR LABOR
STANDARDS ACT AS ADJUDICATED IN THIS MEMORANDUM OPINION."  69 F.SUPP. 
599, 608.  THE COURT OF APPEALS AGREED WITH THIS VIEW OF THE DISTRICT
COURT (WITH A MINOR MODIFICATION NOT HERE RELEVANT).  167 F.2D 448.  IN
SHORT, BOTH COURTS FOUND NO CONTEMPT.  THEY DID SO BECAUSE THERE WAS
LACKING THAT CLEARNESS OF COMMAND IN THE COURT'S ORDER WHICH WARRANTED
A FINDING OF ITS DISOBEDIENCE, IF DUE REGARD WERE PAID TO THE PROPER
CONSTRUCTION OF THE INJUNCTION AS THE STARTING POINT OF THE CONTEMPT
PROCEEDINGS.  AT THE LEAST, SUCH WAS A WARRANTABLE INTERPRETATION OF
THE CIRCUMSTANCES OF THIS CASE, AND WE ARE DISENTITLED TO SET OUR
INTERPRETATION AGAINST THEIRS. 

IN REVERSING THE CONCLUSION OF THE TWO LOWER COURTS THAT THERE WAS NO
CONTEMPT BECAUSE THERE WAS NO DISOBEDIENCE OF THE INJUNCTION, THE COURT
IS RENDERING A DECISION OF FAR-REACHING IMPORT TO THE LAW OF
INJUNCTIONS.  TODAY'S RULING HAPPENS TO CONCERN AN INJUNCTION AGAINST
AN EMPLOYER.  TOMORROW IT MAY BE AN INJUNCTION AGAINST EMPLOYEES, AS IT
WAS YESTERDAY AND TOO OFTEN IN THE PAST.  ONE OF THE GRIEVANCES WHICH
LED TO THE NORRIS-LAGUARDIA ACT WAS THE GENERALITY OF THE TERMS OF
LABOR INJUNCTIONS.  AMBIGUITY LURKS IN GENERALITY AND MAY THUS BECOME
AN INSTRUMENT OF SEVERITY.  BEHIND THE VAGUE INCLUSIVENESS OF AN
INJUNCTION LIKE THE ONE BEFORE US IS THE HAZARD OF RETROSPECTIVE
INTERPRETATION AS THE BASIS OF PUNISHMENT THROUGH CONTEMPT
PROCEEDINGS.  THE TWO LOWER COURTS, IN FINDING THAT GENERALLY TO ENJOIN
OBEDIENCE TO A LAW IS TOO VAGUE A FOUNDATION FOR PROCEEDINGS IN
CONTEMPT, WERE AVOIDING THE VERY EVIL WITH WHICH LABOR INJUNCTIONS WERE
JUSTLY CHARGED.  AND OF COURSE IT IS NOT TO BE ASSUMED THAT THE
ALLOWABLE VAGUENESS OF AN INJUNCTION VARIES WITH THE USE TO WHICH THE
INJUNCTION IS PUT.  THIS COURT OUGHT NOT TO ENCOURAGE INJUNCTIONS
COUCHED IN SUCH INDEFINITE TERMS BY SETTING ASIDE THE FINDINGS OF THE
COURTS BELOW THAT THE INJUNCTION DID NOT FORBID WITH EXPLICITNESS
SUFFICIENT TO JUSTIFY A FINDING OF CONTEMPT. 

I WOULD AFFIRM THE JUDGMENT OF THE COURT OF APPEALS. 
..END :





















LAWSON V. SUWANNEE S.S. CO., 336 U.S. 198 


NO. 56.  ARGUED DECEMBER 7, 1948.  - DECIDED FEBRUARY 14, 1949.  - 166
F.2D 13, AFFIRMED. 


1.  AN EMPLOYEE, WHO HAD PREVIOUSLY LOST THE SIGHT OF HIS RIGHT EYE
THROUGH CAUSES UNCONNECTED WITH INDUSTRY OR HIS EMPLOYMENT, SUFFERED AN
INJURY IN THE COURSE OF HIS EMPLOYMENT AS A RESULT WHEREOF HE LOST THE
SIGHT OF HIS LEFT EYE, AND THEREBY BECAME TOTALLY DISABLED WITHIN THE
MEANING OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT. 
HELD:  UNDER SEC. 8(F)(1) OF THE ACT, THE EMPLOYER WAS LIABLE ONLY FOR
PERMANENT PARTIAL DISABILITY (LOSS OF THE LEFT EYE), AND THE REMAINDER
OF THE COMPENSATION DUE FOR PERMANENT TOTAL DISABILITY WAS PAYABLE OUT
OF THE SPECIAL FUND ESTABLISHED BY SEC. 44 OF THE ACT.  PP. 199-206. 

2.  THE TERM "DISABILITY" IN SEC. 8(F)(1) IS NOT TO BE CONSTRUED AS A
TERM OF ART BUT RATHER IN A BROADER AND MORE USUAL CONCEPT.  PP. 200
202. 

3.  SECTION 8(F)(1) IS NOT TO BE READ AS CREATING A DISTINCTION
BETWEEN A WORKER PREVIOUSLY INJURED IN INDUSTRY AND ONE HANDICAPPED BY
A NON-INDUSTRIAL CAUSE.  PP. 202-206. 

4.  THE CONTENTION AGAINST THE CONCLUSION HERE REACHED, THAT THE
STATUTORY FUND WILL SOON BE INSOLVENT IF BURDENED WITH LIABILITY IN THE
CASE OF NON-INDUSTRIAL PREVIOUS INJURY, CAN NOT BE SUSTAINED.  PP. 205
206. 

LAWSON, DEPUTY COMMISSIONER, UNITED STATES EMPLOYEES' COMPENSATION
COMMISSION, V. SUWANNEE FRUIT & STEAMSHIP CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

AN AWARD BY THE DEPUTY COMMISSIONER UNDER THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT REQUIRED RESPONDENT TO PAY
COMPENSATION FOR PERMANENT TOTAL DISABILITY OF AN EMPLOYEE.  ON REVIEW
THE DISTRICT COURT HELD THAT RESPONDENT WAS LIABLE ONLY FOR PERMANENT
PARTIAL DISABILITY.  68 F.SUPP.  616.  THE COURT OF APPEALS AFFIRMED. 
166 F.2D 13.  THIS COURT GRANTED CERTIORARI.  334 U.S. 857.  AFFIRMED,
P. 206. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS IS A WORKMEN'S COMPENSATION CASE, UNDER THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT, 44 STAT. 1424, 33 U.S.C. SEC. 901 ET
SEQ. A NARROW AND DIFFICULT QUESTION OF STATUTORY CONSTRUCTION
CONFRONTS US. 

JOHN DAVIS LOST THE SIGHT OF HIS RIGHT EYE IN AN ACCIDENT UNCONNECTED
WITH INDUSTRY OR HIS EMPLOYMENT.  HE WAS LATER HIRED BY RESPONDENT.  AN
INJURY OCCURRED DURING THIS EMPLOYMENT, AND HE IS NOW BLIND IN BOTH
EYES.  THE PARTIES AGREE THAT HE IS TOTALLY DISABLED WITHIN THE MEANING
OF THE ACT; THEY ALSO AGREE THAT THE EMPLOYER IS LIABLE FOR
COMPENSATION FOR THE LOSS OF THE LEFT EYE.  THE DISPUTE IS NARROWED TO
THIS QUESTION:  SHOULD THE EMPLOYER OR THE STATUTORY SECOND INJURY
FUND, ADMINISTERED BY PETITIONER, BE LIABLE FOR THE BALANCE OF PAYMENTS
TO EQUAL COMPENSATION FOR TOTAL DISABILITY? 

PETITIONER CONCLUDED THAT THE EMPLOYER WAS LIABLE.  THE EMPLOYER
SECURED A REVERSAL OF THIS DETERMINATION IN THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA, 68 F.SUPP.  616,  FN1 AND THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT AFFIRMED THE JUDGMENT OF THE DISTRICT
COURT.  166 F.2D 13.  BECAUSE THIS DECISION CONFLICTED WITH THAT OF THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN NATIONAL HOMEOPATHIC
HOSPITAL ASSOCIATION V. BRITTON, 79 U.S. APP. D.C. 309, 147 F.2D 561,
CERT. DENIED 325 U.S. 857, WE GRANTED CERTIORARI. 

INJURY WHICH OF ITSELF WOULD ONLY CAUSE PERMANENT PARTIAL DISABILITY
BUT WHICH, COMBINED WITH A PREVIOUS DISABILITY, DOES IN FACT CAUSE
PERMANENT TOTAL DISABILITY, THE EMPLOYER SHALL PROVIDE COMPENSATION
ONLY FOR THE DISABILITY CAUSED BY THE SUBSEQUENT INJURY:  PROVIDED,
HOWEVER, THAT IN ADDITION TO COMPENSATION FOR SUCH PERMANENT PARTIAL
DISABILITY, AND AFTER THE CESSATION OF THE PAYMENTS FOR THE PRESCRIBED
PERIOD OF WEEKS, THE EMPLOYEE SHALL BE PAID THE REMAINDER OF THE
COMPENSATION THAT WOULD BE DUE FOR PERMANENT TOTAL DISABILITY.  SUCH
ADDITIONAL COMPENSATION SHALL BE PAID OUT OF THE SPECIAL FUND
ESTABLISHED IN SECTION 44."  THE COURT BELOW HELD THAT THIS SECTION IS
"CLEAR AND UNAMBIGUOUS, AND THEREFORE NEEDS NO CONSTRUCTION.  WHEN READ
IN ITS ORDINARY SENSE IT CAN HAVE BUT ONE MEANING":  LIABILITY FOR THE
SECOND INJURY FUND. 

BUT THE WORD "DISABILITY" IS DEFINED IN THE STATUTE.  SECTION 2
PROVIDES THAT "WHEN USED IN THIS ACT  ...  , (10) 'DISABILITY' MEANS
INCAPACITY BECAUSE OF INJURY  ...  "  THE WORD "INJURY" IS, IN TURN,
DEFINED AS "ACCIDENTAL INJURY OR DEATH ARISING OUT OF AND IN THE COURSE
OF EMPLOYMENT  ... "  SEC. 2(2).  IF THESE DEFINITIONS ARE READ INTO
THE SECOND INJURY PROVISION, THEN, IT READS AS FOLLOWS:  "IF AN
EMPLOYEE RECEIVE AN INJURY WHICH OF ITSELF WOULD ONLY CAUSE PERMANENT
PARTIAL DISABILITY BUT WHICH, COMBINED WITH A PREVIOUS INCAPACITY
BECAUSE OF ACCIDENTAL INJURY OR DEATH ARISING OUT OF AND IN THE COURSE
OF EMPLOYMENT, DOES IN FACT CAUSE PERMANENT TOTAL DISABILITY, THE
EMPLOYER SHALL PROVIDE COMPENSATION ONLY FOR THE DISABILITY CAUSED BY
THE SUBSEQUENT INJURY."  BECAUSE DAVIS' PREVIOUS INJURY WAS
NONINDUSTRIAL, THIS READING POINTS TO LIABILITY FOR THE EMPLOYER. 

IF CONGRESS INTENDED TO USE THE TERM "DISABILITY" AS A TERM OF ART, A
SHORTHAND WAY OF REFERRING TO THE STATUTORY DEFINITION, THE EMPLOYER
MUST PAY TOTAL COMPENSATION.  IF CONGRESS INTENDED A BROADER AND MORE
USUAL CONCEPT OF THE WORD, THE JUDGMENT BELOW MUST BE AFFIRMED. 
STATUTORY DEFINITIONS CONTROL THE MEANING OF STATUTORY WORDS, OF
COURSE, IN THE USUAL CASE.  BUT THIS IS AN UNUSUAL CASE.  IF WE READ
THE DEFINITION INTO SEC. 8(F)(1) IN A MECHANICAL FASHION, WE CREATE
OBVIOUS INCONGRUITIES IN THE LANGUAGE, AND WE DESTROY ONE OF THE MAJOR
PURPOSES OF THE SECOND INJURY PROVISION:  THE PREVENTION OF EMPLOYER
DISCRIMINATION AGAINST HANDICAPPED WORKERS.  WE HAVE CONCLUDED THAT
CONGRESS WOULD NOT HAVE INTENDED SUCH A RESULT. 

CHIEF JUSTICE GRONER, DISSENTING IN THE NATIONAL HOMEOPATHIC CASE, 79
U.S. APP. D.C. AT 313, 147 F.2D AT 565, NOTICED THAT THE "INTER
REPLACEMENTS OF WORDS" WE HAVE SET OUT ABOVE "PRODUCES A MANIFEST
INCONGRUITY, FOR ...  IT WOULD LITERALLY RESULT IN THIS:  '  ...
PREVIOUS INCAPACITY BECAUSE OF ACCIDENTAL INJURY OR DEATH' - AND IF TO
AVOID THIS IT BE ARGUED THAT ONLY A PORTION OF THE DEFINITION OF INJURY
SHOULD BE INSERTED, THE RESULT WOULD BE TO CHANGE OR AT LEAST TO LIMIT
THE STATUTORY DEFINITION ONLY TO PRODUCE A DESIRED RESULT, WHICH NO ONE
WOULD URGE OR DEFEND.  IT IS EVIDENT, THEREFORE," THAT THE DEFINITION
OF DISABILITY WAS "NOT MADE WITH WATCH-LIKE PRECISION" AND SHOULD NOT
BE SO APPLIED IN SEC. 8(F)(1).  IF THE INTENT OF CONGRESS HAD BEEN TO
LIMIT THE APPLICABILITY OF THIS SUBSECTION IN THE FASHION FOR WHICH
PETITIONER CONTENDS, "IT COULD EASILY HAVE ACCOMPLISHED THIS BY THE
INSERTION OF THE WORD 'COMPENSABLE' BETWEEN THE WORDS 'PREVIOUS' AND
'DISABILITY'  ...  "  AND SEE ATLANTIC CLEANERS AND DYERS V. UNITED
STATES, 286 U.S. 427. 

MORE IMPORTANT, PERHAPS, IS THE DISSERVICE WE WOULD DO TO THE PURPOSE
OF THE SECOND INJURY PROVISION.  WE MUST LOOK TO THE EXPLANATION OF
CONGRESSIONAL INTENT BEHIND THE SUBSECTION.  A WITNESS AT A HEARING ON
THE MEASURE OUTLINED HIS REASONS FOR FAVORING THE PROVISION IN THE
FOLLOWING MANNER:  "THE SECOND INJURY PROPOSITION IS AS MUCH TO THE
ADVANTAGE OF THE EMPLOYER AND HIS INTERESTS AS IT IS FOR THE BENEFIT OF
THE EMPLOYEE.  IT PROTECTS THAT EMPLOYER WHO HAS HIRED, SAY, A ONE-EYED
WORKER WHO GOES AND LOSES HIS OTHER EYE AND BECOMES A TOTAL
DISABILITY.  THE EMPLOYER WITHOUT THIS SORT OF THING WOULD HAVE TO PAY
TOTAL PERMANENT DISABILITY COMPENSATION.  THEN, ON THE OTHER HAND, THIS
ALSO PROTECTS THE WORKER WITH ONE EYE FROM BEING DENIED EMPLOYMENT ON
ACCOUNT OF HIS BEING AN EXTRA RISK.  NOW, BY SIMPLY TAKING THIS UP IN
THIS WAY IT IS POSSIBLE TO PROTECT BOTH THE EMPLOYER AND TO PROTECT THE
ONE-EYED EMPLOYEE ALSO."  FN3 

PETITIONER RELIES ON THE STATEMENT OF ANOTHER WITNESS BEFORE THE
SENATE COMMITTEE, WHO FAVORED INCLUSION OF THE SECOND INJURY PROVISIONS
BECAUSE "THEY HAVE BECOME A COMMONPLACE  ...  IN STATE COMPENSATION
LEGISLATION AND OUGHT TO BE INCLUDED IN THE ACT."  FN4  AND PETITIONER
STATES THAT "WE MAY APPROPRIATELY REFER, THEREFORE, TO THE SECOND
INJURY PROVISIONS IN OTHER STATUTES AND TO THE EVALUATIONS MADE BY
ADMINISTRATIVE EXPERTS IN THE FIELD FOR GUIDANCE WITH RESPECT TO THE
MANNER IN WHICH OPPOSING POLICY CONSIDERATIONS HAVE BEEN RESOLVED." 
BUT OUR SEARCH FOR GUIDANCE IN THE SOURCES SUGGESTED BY PETITIONER
CONVINCES US THAT PETITIONER'S THEORIES ARE NOT WELL-FOUNDED. 

FROM THE ATTITUDE OF EXPERTS IN THE FIELD, ONE WOULD NOT EXPECT
CONGRESS TO DISTINGUISH BETWEEN TWO TYPES OF HANDICAPPED WORKERS.  THE
ANNUAL CONVENTIONS OF THE INTERNATIONAL ASSOCIATION OF INDUSTRIAL
ACCIDENT BOARDS AND COMMISSIONS PROVIDE THE MOST HELPFUL CONSIDERATIONS
OF THE PROBLEM.  AT THE 1931 CONVENTION, MR. JOSEPH PARKS OF THE
MASSACHUSETTS COMMISSION SPOKE AS FOLLOWS OF WORKMEN'S COMPENSATION
LEGISLATION WITHOUT A SECOND INJURY PROVISION:  "I LITTLE KNEW THAT
THIS GREAT PIECE OF LEGISLATION  ...  WOULD BECOME AN INSTRUMENT OF
PERSECUTION, AS I MAY CALL IT, OF MEN WHO ARE PHYSICALLY HANDICAPPED,
BUT THAT IS WHAT IT HAS BECOME.  MEN WHO ARE PHYSICALLY HANDICAPPED ARE
BEING DISCRIMINATED AGAINST IN OUR COMMONWEALTH."  FN5 

THIS ATTITUDE HAS BEEN ECHOED BY MR. CHARLES SHARKEY OF THE UNITED
STATES BUREAU OF LABOR STATISTICS; FN6  MISS FRANCES PERKINS, THEN
INDUSTRIAL COMMISSIONER IN NEW YORK; FN7  AND OTHERS.  FN8  PERHAPS THE
MOST IMPRESSIVE EVIDENCE OF THE FORCE BEHIND THESE STATEMENTS IS THAT
OFFERED BY MR. I. K. HUBER OF OKLAHOMA.  NEASE V. HUGHES STONE CO., 114
OKLA. 170, 244 P. 778, HELD THE EMPLOYER LIABLE FOR TOTAL COMPENSATION
FOR LOSS OF THE SECOND EYE.  AFTER THE DECISION, MR. HUBER REPORTS,
"THOUSANDS OF ONE-EYED, ONE-LEGGED, ONE-ARMED, ONE-HANDED MEN IN THE
STATE OF OKLAHOMA WERE LET OUT AND CAN NOT GET EMPLOYMENT COMING UNDER
THE WORKMEN'S COMPENSATION LAW OF OKLAHOMA.  UNDER THE WORKMEN'S
COMPENSATION LAW OF OKLAHOMA....  THOSE  ...  COURT DECISIONS PUT US IN
BAD SHAPE.  ...  THE DECISION DISPLACED BETWEEN SEVEN AND EIGHT
THOUSAND MEN IN LESS THAN 30 DAYS IN OKLAHOMA."  FN9 

A DISTINCTION BETWEEN A WORKER PREVIOUSLY INJURED IN INDUSTRY AND ONE
HANDICAPPED BY A CAUSE OUTSIDE OF INDUSTRY HAS NO LOGICAL FOUNDATION IF
WE ACCEPT THE PREMISE THAT THE PURPOSE OF THE FUND IS THAT OF AID TO
THE HANDICAPPED.  THIS IS THE CONCLUSION OF MR. FRED WILCOX, THEN
CHAIRMAN OF THE WISCONSIN COMMISSION:  FN10  "WISCONSIN TAKES NO
ACCOUNT OF WHERE THE INJURED MAN MAY HAVE GOTTEN HIS FIRST INJURY.  IT
MAKES NO DIFFERENCE WHERE HE GOT IT.  IT IS JUST AS SERIOUS TO HIM,
WHEN HE HAS THE SECOND INJURY, AS IF HE HAD GOTTEN THE FIRST ONE IN
INDUSTRY."  WE CANNOT ATTRIBUTE THE ILLOGIC OF PETITIONER'S POSITION TO
CONGRESS. 

OUR CONCLUSION IS REINFORCED BY THE ADMINISTRATIVE PRACTICE UNDER THE
NEW YORK STATUTE.  THE FEDERAL STATUTE IS BASED UPON NEW YORK LAW. 
FN11  IN NEW YORK "THE COMMISSION HOLDS THAT IF THE MAN LOSES HIS
SECOND EYE IN AN INDUSTRIAL ACCIDENT IT IS IMMATERIAL HOW HE LOST THE
FIRST EYE.  THE LOSS OF EYESIGHT IN ONE EYE MAY HAVE BEEN CONGENITAL;
IT MAY HAVE OCCURRED WHEN THE CHILD WAS TWO YEARS OLD, OR IT MAY HAVE
OCCURRED AFTER HE WAS GROWN, BUT NOT IN AN INDUSTRIAL ACCIDENT. 
NEVERTHELESS, AT THE TIME HE LOSES HIS SECOND EYE, HE HAS SUFFERED
TOTAL DISABILITY."  FN12 

PETITIONER ARGUES THAT NEW YORK LAW IS TO THE CONTRARY, CITING LA
BELLE V. BRITTON STONE & SUPPLY CORP., 247 APP. DIV. 843, 286 N.Y.S.
347, AND BERVILACQUA V. CLARK, 225 APP. DIV. 190, 232 N.Y.S. 502.  THE
LA BELLE CASE IS INADEQUATELY REPORTED; THE BERVILACQUA CASE DID NOT
CONSIDER THE PRECISE POINT INVOLVED IN THIS CASE, AND WAS DISTINGUISHED
BY THE NEW YORK ATTORNEY-GENERAL IN 1937 WHEN HE ADVISED THE DEPARTMENT
OF LABOR TO CONTINUE ITS ESTABLISHED PRACTICE.  ANNUAL REPORT OF THE
ATTORNEY-GENERAL, STATE OF NEW YORK, FOR 1937(ALBANY, 1938), P. 270. 

PETITIONER'S MOST STRENUOUS ARGUMENT IS THAT THE FUND WILL SOON BE
INSOLVENT IF WE OPEN LIABILITY TO A NONINDUSTRIAL PREVIOUS INJURY, AND
THAT THEREFORE CONGRESS COULD NOT HAVE CONTEMPLATED THE RESULT WE
REACH.  FN13  PETITIONER'S WORRIES SEEM EXAGGERATED IN THE LIGHT OF
WISCONSIN AND NEW YORK EXPERIENCE.  FROM 1919 TO 1933,  FN14
WISCONSIN'S FUND HAD ONLY 50 SECOND INJURY CASES CHARGED AGAINST IT.
SECOND-INJURY FUNDS AS EMPLOYMENT AIDS TO THE HANDICAPPED, U.S.
DIVISION OF LABOR STANDARDS (1944), P. 7.  FROM 1919 TO 1943, ONLY 99
CASES WERE CHARGED AGAINST THE NEW YORK FUND.  ID., P. 5.  IN 1930 MISS
FRANCES PERKINS TOLD HER ASSOCIATES THAT THE PROBLEM IS "NOT SO LARGE
...  AS IT APPEARS."  FN15 

ON THE BASIS OF THE INCONGRUITY INVOLVED IN APPLYING THE DEFINITION
MECHANICALLY, THE UNMISTAKABLE PURPOSE OF THE SECOND INJURY FUND, AND
THE INTERPRETATION OF THE STATE STATUTE ON WHICH THE FEDERAL ACT IS
BASED, WE CONCLUDE THAT THE TERM "DISABILITY" WAS NOT USED AS A TERM OF
ART IN SEC. 8(F)(1), AND THAT THE JUDGMENT MUST BE AFFIRMED. 
AFFIRMED. 

FN1  UNDER SEC. 21 OF THE STATUTE. 

FN3  HEARINGS BEFORE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES ON S. 3170, 69TH CONG., 1ST SESS. (1926), P. 208. 

FN4  HEARINGS BEFORE SUBCOMMITTEE OF THE SENATE COMMITTEE ON THE
JUDICIARY ON S. 3170, 69TH CONG., 1ST SESS. (1926) P. 43. 

FN5  UNITED STATES BUREAU OF LABOR STATISTICS, BULL.  NO. 564(1932),
P. 278. 

FN6  UNITED STATES BUREAU OF LABOR STATISTICS, BULL.  NO. 577(1933),
P. 146. 

FN7  UNITED STATES BUREAU OF LABOR STATISTICS, BULL.  NO. 536(1931),
P. 254. 

FN8  "WE ARE DEALING WITH A CONDITION AND NOT A THEORY.  IF THE MAN
IS FOUND WITH SOME DEFECT WHICH, IF HE MEETS WITH AN ACCIDENT, IS
LIKELY TO BE AGGRAVATED AND MADE MORE SEVERE AND THUS INCREASE THE COST
TO THE EMPLOYER WHOSE EXPERIENCE RATING GOES UP AS A RESULT, THEN HE
DOES NOT WANT TO ACCEPT THAT RISK; AND THAT POOR FELLOW IS MET WITH THE
ALTERNATIVE OF BEING DEPRIVED OF A MEANS OF EARNING A LIVELIHOOD OR OF
WAIVING HIS RIGHTS TO COMPENSATION."  IBID., P. 256.  AND SEE
DISCUSSION OF INDUSTRIAL ACCIDENTS AND DISEASES, UNITED STATES DIVISION
OF LABOR STANDARDS, BULL.  NO. 94(1948), P. 104; UNITED STATES BUREAU
OF LABOR STATISTICS, BULL.  NO. 602(1934), P. 11, FF., ESPECIALLY P.
15; UNITED STATES BUREAU OF LABOR STATISTICS, BULL.  NO. 577(1933), PP.
154, 155.    FN9  UNITED STATES BUREAU OF LABOR STATISTICS, BULL.  NO.
536(1931), PP. 268, 272.  MR. FRED WILCOX, FORMER CHAIRMAN OF THE
WISCONSIN COMMISSION, SAID:  "FUNDAMENTALLY, THERE IS NO MORAL REASON
WHY THE EMPLOYER OF A MAN, WHEN HE GETS HIS SECOND INJURY, SHOULD NOT
PAY THE FULL CUMULATIVE EFFECT OF THAT INJURY  ...  BUT THAT IS NOT THE
WAY THINGS WORK OUT.  THE EMPLOYER ESCAPES THE BURDEN AND LETS THE
INJURED MAN BEAR IT, AND HE SITS AT HOME WITHOUT A JOB.  ...  THE
EMPLOYER IS GOING TO BE AFRAID TO TAKE THEM ON BECAUSE OF SOME ADDED
RESPONSIBILITY.  ...  WE ALLOWED THE EMPLOYEE WHO LOST HIS SECOND EYE
TO HAVE TWICE AS MUCH COMPENSATION FOR THE LOSS OF THE SECOND EYE AS
FOR THE LOSS OF THE FIRST EYE.  BUT WHAT ABOUT IT?  DID ANYONE EVER GET
ANY COMPENSATION FOR THE LOSS OF A SECOND EYE?  NO; HE NEVER GOT A
JOB.  HE NEVER GOT A CHANCE TO LOSE HIS SECOND EYE IN AN INDUSTRY - TO
BE BLUNT IN STATING THE FACTS.  EMPLOYERS WOULD NOT HIRE HIM, BECAUSE
THEY WOULD TAKE ON TWICE AS MUCH LIABILITY AS THEY HAD BEFORE."  UNITED
STATES BUREAU OF LABOR STATISTICS, BULL.  NO. 577(1933), PP. 157, 158. 

FN10  ID. 

FN11  H.R. REP. NO. 1190, 69TH CONG., 1ST SESS., P. 2.  SEE
EMPLOYERS' LIABILITY ASSURANCE CORP., LTD. V. MONAHAN, 91 F.2D 130;
HARTFORD ACCIDENT & INDEMNITY CO. V. HOAGE, 66 APP. D.C. 154, 85 F.2D
411. 

FN12  UNITED STATES BUREAU OF LABOR STATISTICS, BULL.  NO. 577(1933),
P. 154. 

FN13  PAYMENTS ARE MADE FROM THE SPECIAL FUND ESTABLISHED IN SEC. 44
OF THE ACT.  EMPLOYERS PAY $1,000 INTO THE FUND FOR NONCOMPENSABLE
DEATHS, HALF OF WHICH IS AVAILABLE FOR SECOND INJURIES.  ALL PENALTIES
AND FINES COLLECTED ARE ALSO PAID INTO THE FUND.  SEC. 44(C). 

FN14  IN 1933 THE WISCONSIN SUPREME COURT DECIDED RUEHLOW V.
INDUSTRIAL COMMISSION, 213 WIS. 240, 251 N.W. 451, WHICH REVERSED THE
ADMINISTRATIVE PRACTICE OUTLINED BY MR. WILCOX, SUPRA. COMPARE LEHMAN
V. SCHMAHL, 179 MINN. 388, 229 N.W. 553. 

FN15  UNITED STATES BUREAU OF LABOR STATISTICS, BULL.  NO. 536(1931),
P. 260.  AT P. 259, MR. L.W. HATCH OF NEW YORK IS REPORTED AS FOLLOWS:
"MANY PEOPLE HAVE SAID, 'OH, WELL, IF YOU MAKE A SECOND-INJURY FUND
TAKE CARE OF EVERY CASE IN WHICH A PRIOR CONDITION WAS A MATERIAL
FACTOR IN THE MAN'S DISABILITY YOU WILL BANKRUPT THE STATE OR THE
TAXPAYERS WILL BE CALLED UPON TO BEAR AN ENORMOUS BURDEN.'  THE
EVIDENCE SO FAR AS WE HAVE GONE DOES NOT INDICATE ANY SUCH SITUATION." 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :














REYNOLDS V. ATLANTIC COAST LINE, 336 U.S. 207 


NO. 234.  ARGUED JANUARY 10, 1949.  - DECIDED FEBRUARY 14, 1949.  - 251
ALA. 27, 36 SO.2D 102, AFFIRMED. 


A COMPLAINT IN A SUIT BROUGHT IN A STATE COURT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT CHARGED THAT THE DEFENDANT'S NEGLIGENCE CAUSED
THE DECEASED TO PERFORM ADDITIONAL WORK OF THE SAME KIND AS HE NORMALLY
PERFORMED.  IT WAS NOT ALLEGED THAT THIS ADDITIONAL WORK CONTAINED ANY
HAZARDS OTHER THAN THOSE USUAL TO THE OCCUPATION.  THE STATE COURT
SUSTAINED A DEMURRER TO THE COMPLAINT ON THE GROUND THAT THE INJURY DID
NOT RESULT PROXIMATELY, IN WHOLE OR IN PART, FROM THE DEFENDANT'S
NEGLIGENCE.  HELD:  JUDGMENT AFFIRMED.  PP. 207-209. 

REYNOLDS, ADMINISTRATRIX, V. ATLANTIC COAST LINE RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

THE STATE TRIAL COURT SUSTAINED RESPONDENT'S DEMURRER TO THE
COMPLAINT IN A SUIT BROUGHT BY PETITIONER UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT.  THE STATE SUPREME COURT AFFIRMED.  251 ALA. 27, 36
SO.2D 102.  THIS COURT GRANTED CERTIORARI.  335 U.S. 852.  AFFIRMED, P.
209. 

PER CURIAM. 

THE PETITIONER BROUGHT THIS SUIT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT IN AN ALABAMA STATE COURT.  AS PERMITTED BY THE PRACTICE
IN THAT STATE, ALL THE FACTS WHICH THE PETITIONER EXPECTED TO PROVE TO
ESTABLISH HER CAUSE OF ACTION WERE SET FORTH IN THE COMPLAINT SO THAT
ANY OBJECTIONS TO A VERDICT IN HER FAVOR BASED ON EVIDENCE OF THOSE
FACTS COULD BE DISPOSED OF PRIOR TO TRIAL.  THE RESPONDENT DEMURRED TO
THE COMPLAINT ON THE GROUND THAT THE FACTS AS THUS SET FORTH DID NOT
CONSTITUTE A CAUSE OF ACTION.  THE DEMURRER WAS SUSTAINED BY THE TRIAL
COURT AND ITS ACTION WAS AFFIRMED BY THE SUPREME COURT OF ALABAMA.  FN1
WE GRANTED CERTIORARI.  FN2 

IT APPEARS FROM THE COMPLAINT THAT THE PETITIONER'S HUSBAND WAS A
BRAKEMAN WHOSE DUTIES CUSTOMARILY REQUIRED HIM TO CROSS BETWEEN CARS ON
MOVING FREIGHT TRAINS.  ON ONE SUCH CROSSING HE FELL AND WAS KILLED. 
THIS CROSSING OCCURRED AS PART OF A REQUIRED JOURNEY FROM THE CABOOSE
TO A CAR FROM WHICH A SIGNAL WAS TO BE GIVEN.  THE SIGNAL ORDINARILY
WOULD HAVE BEEN GIVEN FROM THE SIXTH CAR FROM THE CABOOSE.  THE
COMPLAINT CHARGED, HOWEVER, THAT BECAUSE THE RAILROAD HAD NEGLIGENTLY
ALLOWED CANES TO GROW ALONGSIDE THE ROADBED THE DECEASED COULD NOT
SAFELY SIGNAL FROM THE SIXTH CAR AND SO HAD TO CROSS TO THE SEVENTH IN
ORDER TO GIVE THE REQUIRED SIGNAL.  ON THIS ADDITIONAL CROSSING HE WAS
KILLED.  THE COMPLAINT ALSO CHARGED THAT THE DECEASED WOULD NOT HAVE
HAD TO MAKE THIS PARTICULAR JOURNEY AT ALL IF THE RAILROAD HAD PROVIDED
A COMPETENT ASSISTANT BRAKEMAN.  NEITHER THE JOURNEY NOR THE CROSSING
ON WHICH THE ACCIDENT OCCURRED WAS ALLEGED TO BE ANY MORE HAZARDOUS
THAN THAT USUALLY UNDERTAKEN BY RAILROAD BRAKEMEN. 

THE ALABAMA SUPREME COURT CONCEDED THAT THE COMPLAINT ADEQUATELY
CHARGED NEGLIGENCE IN THE FAILURE TO REMOVE THE CANES AND IN THE
FAILURE TO PROVIDE A COMPETENT FELLOW SERVANT.  IT HELD, HOWEVER, THAT
THE FACTS ALLEGED DID NOT SHOW THAT THE ACCIDENT RESULTED PROXIMATELY,
IN WHOLE OR IN PART, FROM THAT NEGLIGENCE.  WE CANNOT SAY THAT THE
SUPREME COURT OF ALABAMA ERRED.  AFFIRMED. 

FN1  251 ALA. 27, 36 SO.2D 102(1948). 

FN2  335 U.S. 852(1948). 

MR. JUSTICE FRANKFURTER IS OF OPINION THAT THIS IS ALSO A CASE IN
WHICH THE PETITION FOR CERTIORARI SHOULD NOT HAVE BEEN GRANTED.  SEE
WILKERSON V. MCCARTHY, 336 U.S. 53, 64(CONCURRING OPINION).  HOWEVER,
INASMUCH AS THE CASE DOES NOT CALL FOR AN INDEPENDENT EXAMINATION OF
THE RECORD IN ORDER TO APPRAISE CONFLICTING TESTIMONY, BUT MERELY TURNS
ON THE FACTS PRESENTED IN THE PLEADINGS, HE JOINS IN THE COURT'S
DISPOSITION OF IT. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR.
JUSTICE RUTLEDGE DISSENT.  SEE LILLIE V. THOMPSON, 332 U.S. 459;
ANDERSON V. ATCHISON, T. & S.F.R. CO., 333 U.S. 821. 
..END :




















CALLAWAY V. BENTON, 336 U.S. 132 


NO. 21.  ARGUED OCTOBER 19, 1948.  - DECIDED FEBRUARY 7, 1949.  - 165
F.2D 877, AFFIRMED. 


A RAILROAD IN REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY ACT HAD
FOR MANY YEARS LEASED AND OPERATED THE PROPERTY OF ANOTHER RAILROAD,
WHICH WAS SOLVENT AND NOT IN REORGANIZATION.  UNDER THE PLAN OF
REORGANIZATION APPROVED BY THE INTERSTATE COMMERCE COMMISSION AND THE
BANKRUPTCY COURT, THE LESSOR WAS GIVEN THE ALTERNATIVE OF SELLING ALL
OF ITS PROPERTY TO THE REORGANIZED COMPANY ON SPECIFIED TERMS OR HAVING
ITS LEASE DISAFFIRMED AND ITS PROPERTY RETURNED.  A MAJORITY OF THE
LESSOR'S STOCKHOLDERS VOTED TO ACCEPT THE OFFER, BUT A SUBSTANTIAL
MINORITY VOTED TO REJECT IT. IN A SUIT BROUGHT BY MINORITY
STOCKHOLDERS, A STATE COURT ISSUED A TEMPORARY INJUNCTION RESTRAINING
THE OFFICERS AND DIRECTORS FROM SELLING THE PROPERTY OR CERTIFYING THE
COMPANY'S ACCEPTANCE OF THE OFFER TO THE COMMISSION, ON THE GROUND THAT
STATE LAW REQUIRED UNANIMOUS CONSENT OF THE STOCKHOLDERS TO SUCH A
SALE.  THE BANKRUPTCY COURT ENJOINED FURTHER PROSECUTION OF THE STATE
ACTION AND DECLARED THE STATE COURT'S TEMPORARY INJUNCTION NULL AND
VOID AS IN EXCESS OF ITS JURISDICTION.  HELD:  UNDER THE NARROW FACTS
PRESENTED HERE, THE BANKRUPTCY COURT ERRED IN ENJOINING THE STATE COURT
SUIT LEADING TO A DETERMINATION OF THE REQUIREMENTS OF STATE LAW WITH
RESPECT TO THE SALE OF THE ENTIRE ASSETS OF THE LESSOR.  PP. 134-151. 

1.  SINCE THE LESSOR WAS NOT BEING REORGANIZED ALONG WITH THE LESSEE
AND THE PLAN OF REORGANIZATION GAVE THE LESSOR THE UNFETTERED RIGHT TO
ACCEPT OR REJECT THE OFFER TO PURCHASE ALL ITS PROPERTY, THE QUESTION
WHETHER THE OFFER COULD BE ACCEPTED BY LESS THAN A UNANIMOUS VOTE OF
THE LESSOR'S SHAREHOLDERS WAS A QUESTION OF STATE, NOT FEDERAL, LAW. 
PP. 136-141. 

(A)  THE BANKRUPTCY ACT GIVES NO CLUE AS TO WHAT PROPORTION OF THE
LESSOR'S STOCKHOLDERS MUST VOTE TO ACCEPT THE OFFER IF STATE LAW IS NOT
CONTROLLING.  P. 139. 

(B)  THE MAJORITY VOTE PROVISION OF SEC. 5(11) OF THE INTERSTATE
COMMERCE ACT IS NOT APPLICABLE IN THIS CASE, SINCE THIS IS NOT A
PROCEEDING UNDER THAT ACT.  PP. 139-140. 

(C)  THE BANKRUPTCY ACT DOES NOT GIVE THE COMMISSION OR THE COURT THE
RIGHT TO REQUIRE ACCEPTANCE BY A LESSOR NOT IN REORGANIZATION OF AN
OFFER FOR THE PURCHASE OF ITS PROPERTY, AND NO SUCH POWER WAS ASSERTED
BY THE COMMISSION IN THIS CASE.  P. 141. 

2.  THE BANKRUPTCY COURT DID NOT HAVE EXCLUSIVE JURISDICTION TO
DECIDE THIS QUESTION OF STATE LAW.  PP. 141-149. 

(A)  WHILE SEC. 77(A) OF THE BANKRUPTCY ACT GIVES THE BANKRUPTCY
COURT EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY, IT DOES
NOT GIVE THE BANKRUPTCY COURT EXCLUSIVE JURISDICTION OVER ALL
CONTROVERSIES THAT IN SOME WAY AFFECT THE DEBTOR'S ESTATE.  P. 142. 

(B)  THE INTEREST HERE INVOLVED WAS NOT A PART OF THE PROPERTY OF THE
DEBTOR BUT THE LESSOR'S REVERSION IN FEE; AND THE ISSUE CONCERNED THE
RIGHTS OF THE LESSOR'S STOCKHOLDERS INTER SESE TO SELL THEIR
REVERSIONARY INTEREST IN THE PROPERTY.  PP. 142-143. 

(C)  THE LESSOR NOT BEING IN REORGANIZATION, ITS INTERNAL MANAGEMENT
WAS NOT SUBJECT TO THE CONTROL OF THE BANKRUPTCY COURT.  PP. 144-146. 

(D)  THE PURCHASE OF FORMERLY LEASED PROPERTIES DOES NOT INVOLVE
RIGHTS ASSERTED BY THE LESSOR AGAINST THE DEBTOR; IT IS A CREDITOR IN
THE PROCEEDINGS ONLY BY VIRTUE OF ITS CLAIMS AGAINST THE DEBTOR UNDER
THE LEASE AND FOR BREACH OF THE LEASE.  PP. 146-147. 

(E)  THE JURISDICTION ASSERTED BY THE DISTRICT COURT OVER A SOLVENT
LESSOR NOT IN REORGANIZATION WAS NOT JUSTIFIED BY ANY PROVISION OF SEC.
77.  PP. 146-148. 

3.  IN THE CIRCUMSTANCES OF THIS CASE, CONTINENTAL ILLINOIS BANK V.
CHICAGO, R.I. & P.R. CO., 294 U.S. 648, AND OTHER CASES DEALING WITH
THE POWER OF AN EQUITY COURT TO PREVENT THE DEFEAT OR IMPAIRMENT OF ITS
JURISDICTION DO NOT SUPPORT THE BANKRUPTCY COURT'S INJUNCTION AGAINST
THE STATE COURT ACTION AND ITS DETERMINATION OF THE ISSUE THERE
INVOLVED.  PP. 149-151. 

CALLAWAY, TRUSTEE, ET AL. V. BENTON ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

A FEDERAL DISTRICT COURT HAVING JURISDICTION OF A PROCEEDING TO
REORGANIZE A RAILROAD UNDER SEC. 77 OF THE BANKRUPTCY ACT ENJOINED
FURTHER PROCEEDINGS IN A STATE COURT TO DETERMINE THE RIGHTS INTER SESE
UNDER STATE LAW OF STOCKHOLDERS OF ANOTHER RAILROAD NOT IN
REORGANIZATION TO SELL TO THE RAILROAD BEING REORGANIZED CERTAIN
PROPERTY LEASED TO AND OPERATED BY THE LATTER.  THE COURT OF APPEALS
REVERSED.  165 F.2D 877.  THIS COURT GRANTED CERTIORARI.  333 U.S.
853.  AFFIRMED, P. 151. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE CENTRAL OF GEORGIA RAILWAY COMPANY, WHOSE TRUSTEE IS THE
PETITIONER HERE, AND ITS PREDECESSOR HAVE LEASED AND OPERATED THE
PROPERTY OF THE SOUTH WESTERN RAILROAD COMPANY SINCE 1869.  THE CENTRAL
WENT INTO RECEIVERSHIP IN 1932, AND IN 1940 ENTERED REORGANIZATION
UNDER SEC. 77 OF THE BANKRUPTCY ACT.  49 STAT. 911, 11 U.S.C. SEC.
205.  SOUTH WESTERN'S LEASE WAS ADOPTED SUCCESSIVELY BY CENTRAL'S
RECEIVER AND TRUSTEES.  IT HAS, IN CONSEQUENCE, REMAINED SOLVENT, AND
NO PETITION FOR REORGANIZATION HAS EVER BEEN FILED IN ITS BEHALF. 

UNDER THE PLAN OF REORGANIZATION OF THE CENTRAL APPROVED BY THE
INTERSTATE COMMERCE COMMISSION AND BY THE DISTRICT COURT, SOUTH WESTERN
IS GIVEN THE ALTERNATIVE OF SELLING ITS PROPERTY TO THE REORGANIZED
COMPANY IN RETURN FOR A FIXED AMOUNT OF BONDS OF THE LATTER, OR OF
HAVING THE LEASE DISAFFIRMED BY THE DEBTOR AND ITS PROPERTY RETURNED. 
FN1  SOUTH WESTERN APPEARED SPECIALLY IN THE REORGANIZATION PROCEEDINGS
AND ASKED THAT ITS LEASE BE ADOPTED BY THE REORGANIZED COMPANY, BUT ON
THE BASIS OF STUDIES AND ESTIMATES NOT NOW OPEN TO CHALLENGE, THE
COMMISSION REJECTED THE PROPOSAL AND FOUND THAT THE AMOUNT OFFERED FOR
ITS PROPERTIES APPEARS "FAIR AND EQUITABLE AND TO EQUAL THE VALUE OF
THE TRANSPORTATION PROPERTY, AND (IS) APPROVED."  FN2 

FOLLOWING COMMISSION AND COURT APPROVAL OF THE PLAN, SOUTH WESTERN'S
OFFICERS, REVERSING THEIR PREVIOUS STAND, URGED ACCEPTANCE OF THE OFFER
BY ITS STOCKHOLDERS AND SIGNIFIED THEIR INTENTION OF CONVEYING THE
COMPANY'S PROPERTY TO THE CENTRAL IF A MAJORITY OF THE STOCKHOLDERS
VOTED TO ACCEPT.  THEREUPON THE RESPONDENTS, WHO ARE INDIVIDUAL
STOCKHOLDERS OF SOUTH WESTERN, BROUGHT AN ACTION IN THE SUPERIOR COURT
OF BIBB COUNTY, GEORGIA, WHERE SOUTH WESTERN'S PRINCIPAL OFFICE IS
LOCATED, ASKING FOR AN INJUNCTION AGAINST SOUTH WESTERN, ITS OFFICERS
AND DIRECTORS, RESTRAINING THEM FROM CERTIFYING THE COMPANY'S
ACCEPTANCE OF THE OFFER TO THE INTERSTATE COMMERCE COMMISSION OR FROM
SELLING THE RAILROAD'S PROPERTY TO THE REORGANIZED DEBTOR IF, UPON A
VOTE OF THE STOCKHOLDERS, A "MERE MAJORITY" OF THE STOCK WAS VOTED IN
FAVOR OF THE PLAN.  THE BASIS OF THE PETITION FOR INJUNCTION WAS THE
CONTENTION THAT UNDER THE LAWS OF GEORGIA, WHERE SOUTH WESTERN WAS
INCORPORATED, THE ENTIRE ASSETS OF THE COMPANY CANNOT BE SOLD EXCEPT
UPON UNANIMOUS APPROVAL OF THE STOCKHOLDERS. 

BEFORE A DECISION WAS REACHED IN THE STATE COURT ACTION, A MEETING OF
SOUTH WESTERN'S STOCKHOLDERS WAS HELD AT WHICH THE OFFER OF PURCHASE
INCORPORATED IN THE CENTRAL'S PLAN OF REORGANIZATION WAS CONSIDERED. 
30,137 SHARES WERE VOTED IN FAVOR OF ACCEPTANCE AGAINST 9,057 SHARES
FAVORING REJECTION.  PETITIONER, ACTING AS TRUSTEE OF THE CENTRAL,
WHICH WAS NOT A PARTY TO THE STATE COURT SUIT, THEN FILED A PETITION IN
THE BANKRUPTCY COURT ASKING THAT RESPONDENTS AND OTHER STOCKHOLDERS OF
SOUTH WESTERN BE ENJOINED FROM FURTHER PROSECUTION OF THE STATE COURT
ACTION, AND A TEMPORARY RESTRAINING ORDER WAS ENTERED AS PRAYED. 
THEREUPON THE STATE COURT, OF ITS OWN MOTION, ENTERED AN INTERLOCUTORY
INJUNCTION RESTRAINING THE OFFICERS AND DIRECTORS OF SOUTH WESTERN FROM
SELLING ITS PROPERTY, ON THE GROUND THAT SUCH A SALE UNDER GEORGIA LAW
REQUIRES UNANIMOUS CONSENT OF THE STOCKHOLDERS.  PETITIONER THEN
AMENDED HIS PETITION IN THE BANKRUPTCY COURT BY BRINGING TO ITS
ATTENTION THE INJUNCTIVE ORDER OF THE STATE COURT, AND, AFTER HOLDING
HEARINGS, THE FEDERAL DISTRICT COURT GRANTED A PERMANENT INJUNCTION
RESTRAINING FURTHER PROSECUTION OF THE STATE ACTION AND DECLARED THE
STATE COURT'S TEMPORARY INJUNCTION NULL AND VOID AS IN EXCESS OF ITS
JURISDICTION.  UPON APPEAL, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT,
ONE JUDGE DISSENTING, REVERSED THE ORDER OF THE DISTRICT COURT.  165
F.2D 877.  WE GRANTED THE PETITION FOR A WRIT OF CERTIORARI  FN3
BECAUSE OF THE CONFLICT BETWEEN STATE AND FEDERAL AUTHORITY AND THE
IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE BANKRUPTCY
ACT. 

FIRST.  THE DISTRICT COURT'S INJUNCTION WAS BASED PRIMARILY ON THE
PREMISE THAT THE PLAN OF REORGANIZATION REQUIRES THE INCLUSION OF SOUTH
WESTERN'S LINES WITHIN THE SYSTEM OF THE REORGANIZED COMPANY.  THE
STATE ACTION IS SAID TO BE AN ATTEMPT ON THE PART OF RESPONDENTS "TO
PREVENT THE CONSUMMATION OF THE PLAN AS RESPECTS SOUTH WESTERN." 
AGAIN, THE COURT HELD THAT "THE QUESTION OF THE CONSOLIDATION, MERGER
AND SALE, AND UNDER WHAT CONDITIONS SOUTH WESTERN MAY CONVEY ITS
PROPERTY TO THE REORGANIZED COMPANY, IN CONSUMMATION OF THE PLAN, IS
NOT A QUESTION OF STATE LAW; IT IS A QUESTION OF BANKRUPTCY LAW - A
QUESTION WHICH ARISES UNDER THE BANKRUPTCY ACT AND THE INTERSTATE
COMMERCE ACT."  THE COURT'S CONCLUSION WAS, THEREFORE, THAT ALTHOUGH
THE QUESTION WHETHER A GEORGIA RAILROAD CORPORATION CAN CONVEY ALL OF
ITS PROPERTIES WITHOUT UNANIMOUS CONSENT OF ITS STOCKHOLDERS WOULD
ORDINARILY BE ONE OF STATE LAW COGNIZABLE IN THE STATE'S COURTS, UNDER
THESE CIRCUMSTANCES THE DECISION WAS ONE FOR THE BANKRUPTCY COURT
APPLYING FEDERAL LAW. 

WE DO NOT AGREE.  THE LANGUAGE OF THE PLAN AND THE FACTORS WHICH THE
COMMISSION TOOK INTO CONSIDERATION IN ARRIVING AT THE AMOUNT OFFERED
SOUTH WESTERN FOR ITS PROPERTIES INDICATE CLEARLY THAT, SO FAR AS THE
REORGANIZATION PLAN CONTEMPLATES ACQUISITION OF THE LESSOR RAILROAD,
THE ORDINARY RULES OF OFFER AND ACCEPTANCE WERE INTENDED TO APPLY. 
THAT HAS INVARIABLY BEEN THE PRACTICE.  AS A CONSEQUENCE, WE HAVE HELD
THAT THE AMOUNT WHICH MAY BE OFFERED A LESSOR IS A QUESTION OF
"BUSINESS JUDGMENT"; THAT "IF THE COMMISSION DEEMS IT DESIRABLE TO KEEP
THE LEASED LINE IN THE SYSTEM, IT MUST NECESSARILY HAVE RATHER BROAD
DISCRETION IN PROVIDING MODIFICATIONS OF THE LEASE WHERE, AS HERE, THE
LESSOR IS NOT BEING REORGANIZED ALONG WITH THE DEBTOR.  FOR UNDER THAT
ASSUMPTION THE MODIFICATION MUST BE SUFFICIENTLY ATTRACTIVE TO INSURE
ACCEPTANCE BY THE LESSOR OR ITS CREDITORS."  GROUP OF INSTITUTIONAL
INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318 U.S. 523, 550(1943). 
THE PLAN ITSELF RECITES THAT THE LEASED LINES ARE TO BE ACQUIRED ONLY
"IF THEY CAN BE ACQUIRED ON THE TERMS HEREINAFTER SET FORTH."  FN4
OTHERWISE, THE LEASE IS TO BE DISAFFIRMED AND THE PROPERTY RETURNED TO
THE LESSOR.  IN ADDITION, THE RECORD IS REPLETE WITH STATEMENTS BY THE
COMMISSION, THE COURT, AND THE PARTIES THAT SOUTH WESTERN'S
STOCKHOLDERS ARE TO HAVE THE CHOICE OPEN TO ANY OFFEREE:  AN UNFETTERED
RIGHT TO ACCEPT OR REJECT.  FN5 

UNDER THESE CIRCUMSTANCES, WE CAN SEE NO REASON WHY THE ORDINARY
INCIDENTS OF A SALE OF THE ASSETS OF A CORPORATION SHOULD NOT BE
APPLICABLE.  ONE OF THE MOST IMPORTANT OF THESE IS, OF COURSE, THE
QUESTION OF THE PROPORTION OF A CORPORATION'S STOCK WHICH MUST BE VOTED
IN FAVOR OF ACCEPTING THE OFFER OF PURCHASE IN ORDER TO MAKE ITS
ACCEPTANCE EFFECTIVE.  SINCE, AS THE DISTRICT COURT HELD, THIS WOULD
ORDINARILY BE A QUESTION OF GEORGIA LAW, WE BELIEVE THAT SUBSTITUTION
OF ANY OTHER RULE OF LAW IS ERRONEOUS.  FN6 

NOT THE LEAST OF THE DIFFICULTIES WITH A CONTRARY RESULT IS THE FACT
THAT THE BANKRUPTCY ACT GIVES NO CLUE TO WHAT PROPORTION OF THE
LESSOR'S STOCKHOLDERS MUST VOTE TO ACCEPT THE OFFER IF STATE LAW IS NOT
CONTROLLING.  SECTION 77(E) PROVIDES THAT CONFIRMATION OF A PLAN
REQUIRES ACCEPTANCE BY CREDITORS HOLDING TWO-THIRDS IN AMOUNT OF THE
TOTAL ALLOWED CLAIMS OF EACH CLASS VOTING ON THE PLAN, BUT THAT THE
JUDGE MAY CONFIRM THE PLAN IN ANY EVENT "IF HE IS SATISFIED AND FINDS,
AFTER HEARING, THAT IT MAKES ADEQUATE PROVISION FOR FAIR AND EQUITABLE
TREATMENT FOR THE INTERESTS OR CLAIMS OF THOSE REJECTING IT."  BUT
NEITHER THE TWO-THIRDS VOTE PROVISION NOR THE SO-CALLED "CRAM-DOWN"
PROVISION APPLIES TO A LESSOR NOT IN REORGANIZATION OR ITS
STOCKHOLDERS.  THEY APPLY TO "CREDITORS OF EACH CLASS WHOSE CLAIMS HAVE
BEEN FILED AND ALLOWED IN ACCORDANCE WITH THE REQUIREMENTS OF
SUBSECTION (C) OF THIS SECTION," WHICH OBVIOUSLY DOES NOT INCLUDE A
LESSOR-OFFEREE.  FN7  AND, ALTHOUGH SOUTH WESTERN IS A "CREDITOR" UNDER
THE SPECIFIC TERMS OF SEC. 77(B), ITS STOCKHOLDERS, INDIVIDUALLY, ARE
NOT. 

THE DISTRICT COURT SOUGHT TO FIND A FEDERAL RULE PERMITTING
ACCEPTANCE BY A SIMPLE MAJORITY VOTE OF THE SHAREHOLDERS IN THE
PROVISIONS OF SEC. 5(11) OF THE INTERSTATE COMMERCE ACT.  FN8  BUT THAT
LINE AS PART OF A PLAN OF REORGANIZATION.  THE COMMISSION CAN
UNDOUBTEDLY CARRY ON SEC. 5 PROCEEDINGS SIMULTANEOUSLY WITH SEC. 77
REORGANIZATION PROCEEDINGS, SEE UNITED STATES V. LOWDEN, 308 U.S.
225(1939), BUT THAT PROCEDURE WAS NOT FOLLOWED IN THIS CASE.  THE
COMMISSION PREFERRED, INSTEAD, TO CARRY OUT THE CONSOLIDATION UNDER THE
AUTHORITY OF SEC. 77(B)(5) OF THE BANKRUPTCY ACT, WHICH PROVIDES THAT
THE PLAN OF REORGANIZATION MAY INCLUDE "THE MERGER OR CONSOLIDATION OF
THE DEBTOR WITH ANOTHER CORPORATION OR CORPORATIONS."  THAT POWER FLOWS
FROM A DIFFERENT SOURCE THAN THE POWER OVER CONSOLIDATIONS UNDER THE
INTERSTATE COMMERCE ACT.  WHILE SOME OF THE FINDINGS REQUIRED OF THE
COMMISSION UNDER THE TWO ACTS ARE SIMILAR, AND SEC. 77(F) PROVIDES THAT
CONSOLIDATION AND MERGER OF THE DEBTOR'S PROPERTY SHALL NOT BE
INCONSISTENT WITH THE PROVISIONS AND PURPOSES OF CHAPTER 1 OF THE
INTERSTATE COMMERCE ACT, THEIR PROCEDURAL AND JURISDICTIONAL
REQUIREMENTS DO NOT OVERLAP.  FN9  IT MAY BE NOTED, IN ADDITION, THAT
SEC. 5(11) CONTAINS A PROVISO THAT THE MAJORITY VOTE PROVISION SHALL
NOT APPLY IF "A DIFFERENT VOTE IS REQUIRED UNDER APPLICABLE STATE LAW,
IN WHICH CASE THE NUMBER SO REQUIRED SHALL ASSENT."  WHETHER THAT
PROVISO IS OPERATIVE WHEN A STATE'S LAW REQUIRES UNANIMOUS CONSENT OF
THE SHAREHOLDERS IS A QUESTION WE NEED NOT DECIDE. 

NOTHING THAT WE HAVE SAID DEROGATES IN ANY WAY FROM DECISIONS OF THIS
COURT UPHOLDING THE POWER OF THE INTERSTATE COMMERCE COMMISSION, IN THE
EXERCISE OF ITS STATUTORY OBLIGATIONS, TO OVERRIDE STATE LAWS
INTERPOSING OBSTACLES IN THE PATH OF OTHERWISE LAWFUL PLANS OF
REORGANIZATION.  WE HAVE RECENTLY REAFFIRMED THAT POWER IN CASES
ARISING UNDER THE INTERSTATE COMMERCE ACT.  FN10  NOR IS THE AMBIT OF
FEDERAL POWER LESS BROAD IN CASES ARISING UNDER THE BANKRUPTCY LAWS OF
THE UNITED STATES.  SECTION 77(F) OF THE BANKRUPTCY ACT SPECIFICALLY
PROVIDES THAT THE PLAN OF REORGANIZATION SHALL BE PUT INTO EFFECT, "THE
LAWS OF ANY STATE OR THE DECISION OR ORDER OF ANY STATE AUTHORITY TO
THE CONTRARY NOTWITHSTANDING."  THE STATUTE DOES NOT, HOWEVER, GIVE THE
COMMISSION OR COURT THE RIGHT TO REQUIRE ACCEPTANCE BY A LESSOR NOT IN
REORGANIZATION OF AN OFFER FOR THE PURCHASE OF ITS PROPERTY, AND NO
SUCH POWER HAS BEEN ASSERTED BY THE COMMISSION IN THIS CASE.  THE PLAN
OF REORGANIZATION IN EFFECT HANDS SOUTH WESTERN A CONTRACT OF SALE. 
WHETHER OR NOT SOUTH WESTERN SIGNS THE CONTRACT MUST DEPEND NOT ONLY
UPON ITS BUSINESS JUDGMENT, BUT ALSO UPON THE CHARTER OF THE COMPANY
AND THE LAWS OF THE STATE OF ITS INCORPORATION.  THERE IS THEREFORE NO
OCCASION TO OVERRIDE STATE LAW.  THE PLAN IMPLICITLY ACCEPTS IT AS
CONTROLLING.  THE FACT THAT THE LAW MAY MAKE ACCEPTANCE OF THE OFFER
LESS LIKELY THAN WOULD BE THE CASE IF THE OFFEREE WERE INCORPORATED
ELSEWHERE DOES NOT CHANGE THE PICTURE.  WE DO NOT BELIEVE THAT CONGRESS
INTENDED TO LEAVE TO INDIVIDUAL JUDGES THE QUESTION OF WHETHER STATE
LAWS SHOULD BE ACCEPTED OR DISREGARDED, PALMER V. MASSACHUSETTS, 308
U.S. 79(1939), OR TO MAKE THE CRITERION TO BE APPLIED THE EFFECT OF THE
LAW UPON THE PROSPECTS OF ACCEPTANCE BY THE OFFEREE. 

SECOND.  THE DISTRICT COURT FURTHER HELD THAT EVEN IF GEORGIA LAW
GOVERNS THE QUESTION OF THE AUTHORITY OF SOUTH WESTERN'S OFFICERS TO
SELL ITS PROPERTIES THE BANKRUPTCY COURT HAS EXCLUSIVE JURISDICTION TO
DECIDE THE STATE LAW QUESTION.  WE HAVE HELD THAT A COURT OF BANKRUPTCY
HAS EXCLUSIVE AND NONDELEGABLE CONTROL OVER THE ADMINISTRATION OF AN
ESTATE IN ITS POSSESSION.  THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S.
478(1940); ISAACS V. HOBBS TIE & T. CO., 282 U.S. 734(1931).  THERE CAN
BE NO QUESTION, HOWEVER, THAT CONGRESS DID NOT GIVE THE BANKRUPTCY
COURT EXCLUSIVE JURISDICTION OVER ALL CONTROVERSIES THAT IN SOME WAY
AFFECT THE DEBTOR'S ESTATE.  FN11  ONE EXCEPTION IS FOUND IN THE
EXPRESS LANGUAGE OF THE STATUTE.  FN12 WHAT IT DID GIVE IS EXCLUSIVE
JURISDICTION OF THE DEBTOR AND ITS PROPERTY WHEREVER LOCATED.  SEC.
77(A).  THE INTEREST HELD BY THE DEBTOR IN SOUTH WESTERN'S LINES WAS A
LEASEHOLD ESTATE.  SUCH AN ESTATE IS THE DEBTOR'S "PROPERTY" WITHIN THE
MEANING OF THE ACT.  ANY CONTROVERSY INVOLVING THAT ESTATE WOULD HAVE
BEEN WITHIN THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT. 
HERE, HOWEVER, THE QUESTION INVOLVES NOT THE DEBTOR'S LEASEHOLD, BUT
THE REVERSION IN FEE HELD BY SOUTH WESTERN AS LESSOR.  SOUTH WESTERN
WAS NOT IN REORGANIZATION JOINTLY WITH ITS LESSEE, NOR COULD IT HAVE
BEEN REORGANIZED IN THE CENTRAL'S PROCEEDINGS.  FN13  THE CONTROVERSY
WHICH RESPONDENTS INITIATED IN THE STATE COURT, AND WHICH THE DISTRICT
COURT DECIDED AFTER HAVING ENJOINED THE STATE PROCEEDINGS, REQUIRES A
DETERMINATION OF THE RIGHTS OF THE STOCKHOLDERS OF SOUTH WESTERN INTER
SE TO SELL THEIR REVERSIONARY INTEREST IN THE PROPERTY.  WE THINK THAT
THE INTEREST HERE INVOLVED IS NOT PART OF THE PROPERTY OF THE DEBTOR,
AND THAT THE DISTRICT COURT'S ASSERTION OF EXCLUSIVE JURISDICTION WAS
ERROR. 

IN EX PARTE BALDWIN, 291 U.S. 610(1934), WE SAID (AT P. 615):  "ALL
PROPERTY IN THE POSSESSION OF A BANKRUPT OF WHICH HE CLAIMS THE
OWNERSHIP PASSES, UPON THE FILING OF A PETITION IN BANKRUPTCY, INTO THE
CUSTODY OF THE COURT OF BANKRUPTCY.  TO PROTECT ITS JURISDICTION FROM
INTERFERENCE, THAT COURT MAY ISSUE AN INJUNCTION."  IN THE BALDWIN CASE
THIS COURT UPHELD THE BANKRUPTCY COURT'S EXCLUSIVE JURISDICTION UNDER
SEC. 77 TO ADJUDICATE THE QUESTION OF FORFEITURE BY THE DEBTOR OF AN
EASEMENT OF RIGHT OF WAY - CLEARLY A PART OF THE PROPERTY OF THE DEBTOR
OF WHICH IT CLAIMED OWNERSHIP.  SEE THOMPSON V. MAGNOLIA PETROLEUM CO.,
SUPRA.  IN WARREN V. PALMER, 310 U.S. 132(1940), WHERE THE DEBTOR UNDER
SEC. 77, THE NEW HAVEN RAILROAD, WAS LESSEE OF PROPERTY BUT HAD
REJECTED THE LEASE AND WAS OPERATING THE PROPERTY FOR THE ACCOUNT OF
THE LESSOR UNDER SEC. 77(C)(6), WE HELD THAT THE BANKRUPTCY COURT HAD
EXCLUSIVE JURISDICTION TO FIX THE AMOUNT OF THE DEFICIT RESULTING FROM
SUCH OPERATION AND TO DECLARE IT A LIEN UPON THE PROPERTY OF THE
LESSOR.  SINCE THE PHYSICAL PROPERTY COVERED BY THE REJECTED LEASE WAS
WITHIN THE CUSTODY OF THE BANKRUPTCY COURT, THE FACT THAT LEGAL TITLE
REMAINED IN THE LESSOR WAS THOUGHT TO BE IMMATERIAL.  CLEARLY, CONTROL
OF THE PHYSICAL PROPERTY MUST REMAIN IN THE COURT WHICH HAS THE
ULTIMATE RESPONSIBILITY FOR OPERATING IT.  AND IN ORDER TO PROTECT THE
ESTATE OF THE DEBTOR FROM DISSIPATION THROUGH LOSSES SUFFERED IN THE
OPERATION OF THE LESSOR'S PROPERTY, RESPONSIBILITY FOR THE
DETERMINATION OF THE AMOUNT OF THE LOSSES AND PROVISION FOR THEIR
RECOUPMENT FROM THE LESSOR WAS PROPERLY LODGED IN THE COURT SUPERVISING
THE REORGANIZATION OF THE DEBTOR. 

EQUALLY CLEAR, HOWEVER, IS THE FACT THAT THE INTERNAL MANAGEMENT OF
THE LESSOR IS NOT PROPERLY SUBJECT TO THE COURT'S CONTROL.  THE ANOMALY
OF PETITIONER'S POSITION IS DEMONSTRATED BY THE FACTS OF THE CASE JUST
DISCUSSED.  THE NEW HAVEN REORGANIZATION WAS PROCEEDING IN A
CONNECTICUT FEDERAL DISTRICT COURT, WHILE THE LESSOR RAILROAD, THE
BOSTON & PROVIDENCE, WAS IN REORGANIZATION UNDER SEC. 77 IN A
MASSACHUSETTS DISTRICT COURT.  THE PLAN OF REORGANIZATION OF THE NEW
HAVEN, LIKE THE CENTRAL'S PLAN IN THIS CASE, CONTEMPLATED THE PURCHASE
OF THE LESSOR'S PROPERTY.  SINCE THE BOSTON & PROVIDENCE REORGANIZATION
COURT HAD EXCLUSIVE JURISDICTION OF ITS PROPERTY, IT CAN HARDLY BE
CONTENDED THAT THE NEW HAVEN REORGANIZATION COURT COULD ASSUME
EXCLUSIVE JURISDICTION TO DECIDE QUESTIONS ARISING, FOR EXAMPLE,
BETWEEN DIFFERENT CLASSES OF CREDITORS OF THE BOSTON & PROVIDENCE AS TO
WHETHER THE NEW HAVEN'S OFFER SHOULD BE ACCEPTED.  SUCH A RESULT WOULD
BE INCOMPATIBLE WITH THE MASSACHUSETTS DISTRICT COURT'S EXCLUSIVE
JURISDICTION OVER THE PROPERTY OF THE BOSTON & PROVIDENCE UNDER SEC.
77(A).  FN14  INSOFAR AS THE POWER OF THE COURT REORGANIZING THE LESSEE
RESTS ON ITS JURISDICTION OVER THE PROPERTY OF THE DEBTOR, THE FACT
THAT THE LESSOR HERE IS NOT IN REORGANIZATION IN ANOTHER COURT IS
IMMATERIAL. 

FURTHER SUPPORT FOR THIS POSITION IS FOUND IN OUR DECISION IN GROUP
OF INSTITUTIONAL INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., SUPRA.
THE MILWAUKEE REORGANIZATION, IN ONE OF ITS ASPECTS, PRESENTED A
SITUATION ANALOGOUS TO THE ONE NOW BEFORE US:  THE LESSEE WAS IN
REORGANIZATION UNDER SEC. 77, BUT NO PROCEEDINGS HAD BEEN INSTITUTED
FOR THE REORGANIZATION OF THE LESSOR OF SOME OF ITS LINES, THE CHICAGO,
TERRE HAUTE & SOUTHEASTERN RAILWAY COMPANY.  THE REORGANIZATION PLAN
PROVIDED FOR A NEW LEASE TO BE OFFERED THE TERRE HAUTE, WHICH REQUIRED
THAT THE LATTER SCALE DOWN ITS BONDED INDEBTEDNESS SO THAT THE INTEREST
THEREON, WHICH WAS THE RENTAL UNDER THE LEASE, WOULD BE SUBSTANTIALLY
REDUCED.  THE PLAN DID NOT, HOWEVER, DIFFERENTIATE BETWEEN THE FOUR
CLASSES OF BONDS OF THE LESSOR WITH RESPECT TO THE EARNING POWER AND
CHARACTER OF THE SECURITY OF EACH, AS IS REQUIRED IN THE REORGANIZATION
OF PROPERTIES OF THE DEBTOR.  CERTAIN BONDHOLDERS ACCORDINGLY ATTACKED
THE PLAN AS UNFAIR, BECAUSE IT DID NOT ATTEMPT TO PRESERVE THE
RESPECTIVE PRIORITIES OF THESE BOND ISSUES.  BUT WE SAID (P. 546):
"THE SHORT ANSWER TO THAT OBJECTION IS THAT THE TERRE HAUTE PROPERTIES
HAVE NOT BEEN TREATED BY THE COMMISSION OR THE DISTRICT COURT AS A PART
OF THE PROPERTIES OF THE DEBTOR FOR REORGANIZATION PURPOSES.  NOR HAS
ANY QUESTION BEEN RAISED OR ARGUED HERE AS TO THE POWER OF THE
COMMISSION OR THE DISTRICT COURT SO TO TREAT THEM.  THE COMMISSION AND
THE DISTRICT COURT CONSIDERED THE PROBLEM SOLELY AS ONE OF REJECTION OR
AFFIRMANCE OF A LEASE."  IT IS ABUNDANTLY CLEAR THAT IN THE CASE BEFORE
US, THE INTEREST OF SOUTH WESTERN WAS SIMILARLY CONSIDERED.  FN15 

OTHER PROVISIONS OF SEC. 77 LEND NO SUPPORT TO PETITIONER'S
CONTENTIONS.  SECTION 77(B), WHICH MAKES SOUTH WESTERN A CREDITOR IN
THE PROCEEDINGS, DOES NOT, AS WE HAVE POINTED OUT, GIVE THE BANKRUPTCY
COURT ANY CONTROL OVER ITS INTERNAL ORGANIZATION.  IT IS NOT A CREDITOR
WHICH CAN BE BOUND BY THE PLAN WITHOUT ITS ASSENT, EXCEPT TO THE EXTENT
OF ITS CLAIM FOR DAMAGES FOR BREACH OF THE LEASE AND FOR AMOUNTS DUE IT
FROM THE LESSEE.  FN16  SECTION 77(B)(1) PROVIDES THAT THE PLAN MAY
ALTER THE RIGHTS OF CREDITORS, WHILE SEC. 77(B)(5) REQUIRES THAT THE
PLAN PROVIDE ADEQUATE MEANS FOR ITS EXECUTION, WHICH MAY INCLUDE MERGER
OR CONSOLIDATION OF THE DEBTOR WITH ANOTHER CORPORATION.  THIS
SUBSECTION ALSO PERMITS REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED
LEASES. 

THE BANKRUPTCY POWER UNQUESTIONABLY GIVES THE COMMISSION AND COURT,
WORKING WITHIN THE FRAMEWORK OF THE ACT, FULL AND COMPLETE POWER NOT
ONLY OVER THE DEBTOR AND ITS PROPERTY, BUT ALSO, AS A COROLLARY, OVER
ANY RIGHTS THAT MAY BE ASSERTED AGAINST IT.  THESE RIGHTS MAY BE
ALTERED IN ANY WAY THOUGHT NECESSARY TO ACHIEVE SOUND FINANCIAL AND
OPERATING CONDITIONS FOR THE REORGANIZED COMPANY, SUBJECT TO THE
REQUIREMENTS OF THE ACT.  THE PURCHASE OF FORMERLY LEASED PROPERTIES
DOES NOT INVOLVE RIGHTS ASSERTED AGAINST THE DEBTOR, HOWEVER.  FN17
THIS COURT HAS SAID THAT "THE EXCLUSIVE JURISDICTION GRANTED THE
REORGANIZATION COURT BY SEC. 77(A) IS THAT WHICH BANKRUPTCY COURTS HAVE
CUSTOMARILY POSSESSED."  MEYER V. FLEMING, 327 U.S. 161, 164(1946). 
FN18  WE CONCEIVE THE JURISDICTION ASSERTED BY THE DISTRICT COURT OVER
A SOLVENT LESSOR NOT IN REORGANIZATION TO BE AN EXTENSION OF THESE
TRADITIONAL POWERS NOT JUSTIFIED BY ANY PROVISIONS OF THE BANKRUPTCY
ACT. 

A SERIOUS PRACTICAL PROBLEM WOULD ARISE IF THE CONSEQUENCE OF
REJECTION OF THE OFFER AND RETURN OF THE PROPERTIES TO SOUTH WESTERN
WOULD BE CESSATION OF RAILROAD SERVICE ON THE FORMERLY LEASED LINES. 
CONGRESS HAS FORESEEN THAT DIFFICULTY, HOWEVER.  UNDER SEC. 77(C)(6),
IF THE LESSOR IS UNABLE TO OPERATE THE LEASED LINES FOLLOWING REJECTION
OF THE LEASE, THE DUTY DEVOLVES UPON THE LESSEE TO CONTINUE TO OPERATE
THE LEASED LINES FOR THE ACCOUNT OF THE LESSOR,  FN19  AND SUCH
OPERATION MAY CONTINUE AFTER COMPLETION OF THE REORGANIZATION OF THE
LESSEE.  FN20  WE NEED NOT SPECULATE UPON THE EVENTUAL DISPOSITION OF
SOUTH WESTERN'S PROPERTIES.  UNTIL SOME FINAL DISPOSITION IS MADE,
HOWEVER, WE ARE ASSURED THAT SERVICE WILL BE MAINTAINED ON ITS LINES,
AND THAT THE DEBTOR WILL NOT BE PREJUDICED BECAUSE OF THE DUTY THRUST
UPON IT.  PALMER V. WEBSTER & ATLAS NATIONAL BANK, 312 U.S. 156(1941). 

THIRD.  IT IS ARGUED THAT CONTINENTAL ILLINOIS NATIONAL BANK V.
CHICAGO, R.I. & P.R. CO., 294 U.S. 648(1935), AND OTHER CASES APPLYING
SIMILAR PRINCIPLES SUPPORT THE DISTRICT COURT'S INJUNCTION OF THE STATE
ACTION AND ITS DETERMINATION OF THE ISSUE THERE INVOLVED.  THE QUESTION
SPECIFICALLY BEFORE THE COURT IN THE ROCK ISLAND CASE WAS THIS:  "UNDER
SEC. 77 DOES THE BANKRUPTCY COURT HAVE AUTHORITY TO ENJOIN THE SALE OF
THE COLLATERAL HERE IN QUESTION IF A SALE WOULD SO HINDER, OBSTRUCT AND
DELAY THE PREPARATION AND CONSUMMATION OF A PLAN OF REORGANIZATION AS
PROBABLY TO DEFEAT IT?"  THE AFFIRMATIVE ANSWER GIVEN BY THE COURT
RESTED UPON THE INHERENT POWERS OF A COURT OF EQUITY TO PREVENT THE
DEFEAT OR IMPAIRMENT OF ITS JURISDICTION, UPON SEC. 262 OF THE OLD
JUDICIAL CODE, WHICH AUTHORIZED UNITED STATES COURTS "TO ISSUE ALL
WRITS NOT SPECIFICALLY PROVIDED FOR BY STATUTE, WHICH MAY BE NECESSARY
FOR THE EXERCISE OF THEIR RESPECTIVE JURISDICTIONS," AND UPON SEC.
2(15) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 11(15), WHICH GIVES
BANKRUPTCY COURTS THE POWER TO "MAKE SUCH ORDERS, ISSUE SUCH PROCESS,
AND ENTER SUCH JUDGMENTS, IN ADDITION TO THOSE SPECIFICALLY PROVIDED
FOR, AS MAY BE NECESSARY FOR THE ENFORCEMENT OF THE PROVISIONS OF THIS
ACT."  52 STAT. 843. 

RELIANCE UPON THESE CASES IS BASED, HOWEVER, UPON THE FALLACY
PREVIOUSLY ADVERTED TO.  THE ACTION IN THE GEORGIA COURTS IN THIS CASE
DOES NOT EMBARRASS OR DELAY THE FORMULATION OR PROMULGATION OF A PLAN
OF REORGANIZATION.  THE PLAN HAS BEEN FORMULATED AND APPROVED.  IT
LEAVES OPEN TO SOUTH WESTERN THE ALTERNATIVE OF SELLING ITS PROPERTIES
TO THE REORGANIZED DEBTOR OR OF FACING DISAFFIRMANCE OF THE LEASE AND
THE RISKS OF SEPARATE OPERATION OF ITS LINES.  NO SUGGESTION HAS BEEN
MADE THAT A FINAL DECISION OF THE STATE LAW QUESTION WILL BE
UNREASONABLY DELAYED.  UNDER THESE CIRCUMSTANCES, WE DO NOT BELIEVE
THAT THE ROCK ISLAND DECISION PROVIDES ANY SUPPORT FOR THE DISTRICT
COURT'S ACTION.  FN21  AS WE HELD IN THOMPSON V. TEXAS MEXICAN R. CO.,
328 U.S. 134(1946) AT 142:  "FORFEITURE OF LEASES BY THE COURT IN
ADVANCE OF A DETERMINATION BY THE COMMISSION OF THE NATURE OF THE PLAN
OF REORGANIZATION WHICH IS NECESSARY OR DESIRABLE FOR THE DEBTOR MAY
SERIOUSLY INTERFERE WITH THE PERFORMANCE BY THE COMMISSION OF THE
FUNCTIONS ENTRUSTED TO IT."  SEE ALSO SMITH V. HOBOKEN R. CO., 328 U.S.
123(1946).  THE SAME CONSIDERATIONS DO NOT PREVAIL AT A LATER STAGE OF
THE PROCEEDINGS, HOWEVER, WHEN, PURSUANT TO A PLAN FORMULATED BY THE
COMMISSION, THE LEASE IS FORFEITED AND AN OFFER OF PURCHASE SUBSTITUTED
IN LIEU THEREOF.  UNLESS THE OFFER IS A SHAM AND THE LESSOR'S
DISCRETION ILLUSORY, THE PLAN MAY BE EFFECTIVELY CONSUMMATED WHETHER
THE OFFEREE ACCEPTS OR NOT.  THE DISTRICT COURT DID NOT MERELY POSTPONE
ACTION WHICH WOULD HAVE HINDERED THE DEVELOPMENT OF THE PLAN; IT TOOK
TO ITSELF THE DECISION OF A QUESTION WHICH THE PLAN LEFT OPEN FOR
DECISION ELSEWHERE. 

WE CONCLUDE THAT, UNDER THE NARROW FACTS PRESENTED HERE, THE
BANKRUPTCY COURT ERRED IN ENJOINING THE STATE COURT SUIT LEADING TO A
DETERMINATION OF THE REQUIREMENTS OF GEORGIA LAW WITH RESPECT TO SALE
OF THE ENTIRE ASSETS OF SOUTH WESTERN.  THIS QUESTION WAS ALREADY IN
LITIGATION IN THE STATE COURT WHEN FIRST RAISED IN THE FEDERAL COURT. 
TITLE 28 U.S.C. SEC. 2283 FORBIDS THIS EXERCISE OF POWER, SINCE, AS WE
HOLD, THE CONTROVERSY DOES NOT INVOLVE PROPERTY OF THE DEBTOR WITHIN
THE JURISDICTION OF THE BANKRUPTCY COURT, AND THE ASSERTION OF
JURISDICTION BY THE STATE COURT IS NOT INCONSISTENT WITH THE PROVISIONS
OF THE BANKRUPTCY ACT.  FN22  AFFIRMED. 

FN1  WITH RESPECT TO SOUTH WESTERN'S PROPERTY, THE PLAN READS AS
FOLLOWS:  "PRIOR TO OR UPON CONSUMMATION OF THE PLAN THE DEBTOR SHALL
ALSO ACQUIRE, IF THEY CAN BE ACQUIRED ON THE TERMS HEREINAFTER SET
FORTH, PROPERTIES AT PRESENT LEASED TO THE DEBTOR BY THE SOUTH WESTERN
RAILROAD COMPANY  ...  IF ANY OF THESE PROPERTIES SHALL NOT BE ACQUIRED
AS A RESULT OF THE ACCEPTANCE OF THE PLAN BY THE LEASED-LINE SECURITY
HOLDERS, THEN AND IN THAT EVENT THE LEASE OR LEASES OF ANY LINE OR
LINES NOT SO ACQUIRED SHALL BE DISAFFIRMED AS OF SUCH TIME AT OR PRIOR
TO THE CONSUMMATION OF THE PLAN AS THE COURT MAY DIRECT.  THE METHOD OF
ACQUISITION, WHETHER THROUGH PURCHASE, MERGER, OR CONSOLIDATION, SHALL,
SUBJECT TO THE APPROVAL OF THE COMMISSION AND THE COURT, BE DETERMINED
BY THE TRUSTEE OR BY THE REORGANIZATION MANAGERS WHEN THEY BEGIN TO
FUNCTION. 

"IF THE LEASED LINES ARE ACQUIRED, THE RAILROADS OF EACH OF THE THREE
AND THE PERSONAL PROPERTY APPURTENANT THERETO AND ALL OF THE REAL
ESTATE OWNED BY EACH LESSOR SHALL BE CONVEYED TO THE REORGANIZED
COMPANY; EACH OF SAID LESSORS SHALL WAIVE ANY DAMAGES TO WHICH IT HAS
BECOME OR SHALL BECOME ENTITLED ON ACCOUNT OF ANY BREACH OF LEASE; AND
THE SOUTH WESTERN RAILROAD COMPANY SHALL WAIVE ALL CLAIMS IN RESPECT TO
EQUIPMENT.  SUCH CONVEYANCES AND WAIVERS SHALL IN EACH INSTANCE BE ON
THE SOLE CONSIDERATION OF THE DELIVERY TO EACH OF THE RESPECTIVE
LESSORS OF THE SECURITIES PROPOSED TO BE ALLOCATED TO IT, AS
HEREINAFTER SPECIFIED."  261 I.C.C. 501, 515. 

FN2  261 I.C.C. 263, 309. 

FN3  333 U.S. 853. 

FN4  261 I.C.C. 515. 

FN5  IN ITS REPORT APPROVING THE PLAN, THE COMMISSION SAID (261
I.C.C. AT P. 308):  "THE LESSOR (SOUTH WESTERN) INSISTS THAT IT HAS THE
RIGHT TO SEVERANCE IF IT CARES TO EXERCISE IT, AND SUCH A RIGHT WILL BE
RECOGNIZED IN THE APPROVED PLAN."  THE DISTRICT COURT, IN APPROVING THE
PLAN, COMMENTED THAT "IF THE LESSORS DO NOT ACCEPT THE PROPOSAL TO
ACQUIRE THEIR LINES THEY ARE, ON DISAFFIRMANCE, AT LIBERTY TO TAKE
THEIR PROPERTIES BACK," WHILE COUNSEL FOR THE TRUSTEE STATED AT A
MEETING OF SOUTH WESTERN'S STOCKHOLDERS, "THE PLAN MAKES AN OFFER TO
YOU GENTLEMEN; THAT IS ALL IT DOES."    FN6  THIS PRECISE PROBLEM HAS
RECEIVED LITTLE ATTENTION FROM COMMENTATORS.  IT WAS NOT MENTIONED IN
THE COMMITTEE REPORTS OR IN DEBATE WHEN SEC. 77 AND ITS 1935 AMENDMENTS
WERE PASSED.  HOWEVER, THE POSITION OF THE LEASED LINE, A MAJORITY OF
WHOSE STOCK IS NOT OWNED BY THE DEBTOR AND WHICH IS NOT IN
REORGANIZATION, IS ANALYZED BY MECK, THE PROBLEMS OF THE LEASED LINE, 7
LAW AND CONTEMP.  PROB.  509, 518, AS FOLLOWS:  "UPON REJECTION OF THE
LEASE, ALTHOUGH THE LEASED LINE REMAINS IN THE CUSTODY OF THE LESSEE'S
TRUSTEES, IT IS NOT PART OF THE LESSEE'S ESTATE AND SECURITY HOLDERS
HAVING INTERESTS IN IT CANNOT BE BOUND IN THE LESSEE'S REORGANIZATION. 
CONSEQUENTLY, IF THE LESSEE'S PLAN PROVIDES FOR A MODIFIED LEASE OR
MERGER OR CONSOLIDATION, SUCH A PROVISION IS LITTLE MORE THAN AN OFFER
TO THE LESSOR.  ACCEPTANCE OF THIS OFFER WILL BE DETERMINED, NOT BY
SUBMITTING THE LESSEE'S PLAN TO THE LESSOR'S SECURITY HOLDERS, PURSUANT
TO SECTION 77, BUT ACCORDING TO THE LAW OF THE STATE WHERE THE LESSOR
IS INCORPORATED."  IT IS ALSO POINTED OUT THAT WHEN THE RIGHTS OF
BONDHOLDERS OF THE LESSOR MAY BE AFFECTED, AS WAS THE CASE WITH TERRE
HAUTE BONDHOLDERS IN THE MILWAUKEE RAILROAD REORGANIZATION (SEE GROUP
OF INSTITUTIONAL INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318 U.S.
523, AND DISCUSSION INFRA), NEARLY UNANIMOUS CONSENT OF SUCH
BONDHOLDERS MAY BE REQUIRED BEFORE THE CHANGES CAN BE MADE EFFECTIVE. 
THE INTERSTATE COMMERCE COMMISSION TOOK THAT POSITION IN THE MILWAUKEE
CASE AND PROVIDED THAT THE OFFER TO TERRE HAUTE SHOULD NOT BE DEEMED
ACCEPTED UNLESS SUBSTANTIALLY ALL OF ITS BONDHOLDERS VOTED TO ACCEPT. 
CHICAGO, M., ST. P. & P.R. CO. REORGANIZATION, 239 I.C.C. 485, 536-538;
240 I.C.C. 257, 270-271.  SEE ALSO 318 U.S. AT 532-533. 

FN7 SEE IN RE NEW YORK, N.H. & H.R. CO., 54 F.SUPP.  631, AT 638. 

FN8  54 STAT. 905, 49 U.S.C. SEC. 5(11). 

FN9  SEE IN RE CHICAGO, R.I. & P.R. CO., 168 F.2D 587, WHERE THE
STATE OF TEXAS MADE THE ARGUMENT THAT THE FINDINGS REQUIRED BY THE
INTERSTATE COMMERCE COMMISSION UNDER SUBSECTIONS 2(B), (C), AND (F) OF
SEC. 5 OF THE INTERSTATE COMMERCE ACT IN PROCEEDINGS FOR MERGER OR
CONSOLIDATION OF RAILROADS ARE MANDATORY IN PROCEEDINGS UNDER SEC. 77
OF THE BANKRUPTCY ACT. 

FN10  SEABOARD AIR LINE R. CO. V. DANIEL, 333 U.S. 118; SCHWABACHER
V. UNITED STATES, 334 U.S. 182; TEXAS V. UNITED STATES, 292 U.S. 522. 

FN11  ARKANSAS CORPORATION COMMISSION V. THOMPSON, 313 U.S. 132;
GARDNER V. NEW JERSEY, 329 U.S. 565.  SEE THOMPSON V. TERMINAL SHARES,
INC., 104 F.2D 1.  EVEN WHEN THE CONTROVERSY INVOLVES PROPERTY WITHIN
THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT, THAT COURT MAY, IN
ITS DISCRETION, POSTPONE ACTION PENDING ADJUDICATION OF THE QUESTION IN
ANOTHER COURT.  EX PARTE BALDWIN, 291 U.S. 610; THOMPSON V. MAGNOLIA
PETROLEUM CO., 309 U.S. 478; ORDER OF RAILWAY CONDUCTORS V. PITNEY, 326
U.S. 561.  SEE FOUST V. MUNSON S.S. LINES, 299 U.S. 77.  CF. RAILROAD
COMMISSION V. PULLMAN CO., 312 U.S. 496; CHICAGO V. FIELDCREST DAIRIES,
316 U.S. 168.  WHETHER, IF THE BANKRUPTCY COURT HAD HAD EXCLUSIVE
JURISDICTION IN THIS CASE, IT SHOULD HAVE WITHHELD DECISION OF THE
STATE LAW QUESTION PENDING THE OUTCOME OF THE STATE COURT ACTION, WE
NEED NOT DECIDE. 

FN12  SEC. 77(J). 

FN13  UNDER THE PROVISIONS OF SEC. 77, AS AMENDED IN 1935, A LESSOR
RAILROAD CAN BE REORGANIZED IN CONNECTION WITH, OR AS A PART OF THE
PLAN OF REORGANIZATION OF THE DEBTOR-LESSEE ONLY IF A MAJORITY OF ITS
CAPITAL STOCK IS OWNED BY THE DEBTOR.  SEC. 77(A).  WHEN SEC. 77 WAS
FIRST ENACTED IN 1933, A LESSOR COULD ALSO BE REORGANIZED IN THE
LESSEE'S PROCEEDINGS IF THE DEBTOR OPERATED SUBSTANTIALLY ALL OF THE
PROPERTIES OF THE LESSOR, BUT THIS PROVISION WAS NOT REENACTED, EVEN
THOUGH IT WAS PROPOSED IN THE DRAFT AMENDMENTS SUBMITTED BY THE FEDERAL
COORDINATOR OF TRANSPORTATION, WHOSE PROPOSALS FORMED THE BASIS OF THE
1935 AMENDMENTS.  REPORT OF THE FEDERAL COORDINATOR OF TRANSPORTATION,
1934.  H.R. DOC. NO. 89, 74TH CONG., 1ST SESS., P. 230.  SEE FRIENDLY,
AMENDMENT OF THE RAILROAD REORGANIZATION ACT, 36 COL. L. REV. 27, 49;
MECK AND MASTEN, RAILROAD LEASES AND REORGANIZATION, 49 YALE L.J. 626,
653. 

FN14  A SIMILAR QUESTION AROSE IN ANOTHER PHASE OF THE NEW HAVEN
REORGANIZATION PROCEEDINGS, IN CONNECTION WITH THE USE BY THE DEBTOR OF
THE BOSTON TERMINAL, WHICH WAS IN REORGANIZATION UNDER SEC. 77 IN
ANOTHER COURT.  THE OBLIGATIONS OWED BY THE NEW HAVEN TO THE TERMINAL
COMPANY WERE FIXED BY A MASSACHUSETTS STATUTE, BUT THESE OBLIGATIONS
WERE REPUDIATED BY THE NEW HAVEN'S PLAN OF REORGANIZATION, WHICH
OFFERED THE TERMINAL NEW TERMS FOR THE USE OF ITS FACILITIES BY THE
DEBTOR.  IN CONSIDERING THE ARGUMENT MADE BY THE TERMINAL'S BONDHOLDERS
THAT THE PLAN VIOLATED THE NEW HAVEN'S OBLIGATIONS UNDER THE STATE LAW,
THE COURT OF APPEALS FOR THE SECOND CIRCUIT MADE THIS STATEMENT:  "THE
PLAN ENABLES NEW HAVEN TO REJECT WHAT IN EFFECT AMOUNTS TO A BURDENSOME
LEASE.  THE PLAN, HOWEVER, DOES NOT COMPEL BOSTON TERMINAL TO FURNISH
THE SERVICE AT THE RENTAL OFFERED; IF BOSTON TERMINAL DOES NOT CHOOSE
TO ACCEPT THE OFFER, IT CAN, AS A CREDITOR, FILE PROOF OF CLAIM AGAINST
NEW HAVEN FOR ANY DAMAGES TO WHICH IT MAY BE ENTITLED.  IT IS ARGUED
THAT BOSTON TERMINAL HAS NO POWER UNDER ITS CHARTER TO ACCEPT THE
OFFER.  THIS SEEMS IRRELEVANT TO THE PROBLEM WHETHER THE COMMISSION HAS
POWER TO APPROVE A PLAN MAKING THE OFFER.  MOREOVER, THE REORGANIZATION
TRUSTEE OF BOSTON TERMINAL MAY BE ABLE TO OBTAIN AUTHORITY TO ACCEPT
EITHER FROM THE BANKRUPTCY COURT IN MASSACHUSETTS OR THROUGH AN
AMENDMENT OF THE BOSTON TERMINAL ACT.  THE PLAN COULD NOT, AND DOES NOT
ATTEMPT TO, AMEND THE CHARTER OF THE TERMINAL COMPANY; BUT IT DOES
AMEND, AS IT CAN, THE CHARTER OF THE NEW HAVEN."  IN RE NEW YORK, N.H.
& H.R. CO., 147 F.2D 40, 52. 

FN15  IT MAY ALSO BE NOTED THAT THE TERRE HAUTE COULD HAVE BEEN
REORGANIZED IN THE MILWAUKEE PROCEEDINGS IF INSOLVENT OR UNABLE TO MEET
ITS DEBTS, SINCE THE MILWAUKEE OWNED SUBSTANTIALLY ALL OF THE TERRE
HAUTE'S STOCK.  SEE NOTE 13, SUPRA.  THE LESSOR'S BONDHOLDERS WERE
THEREFORE MORE LIKE HOLDERS OF THE DEBTOR'S BONDS THAN ARE STOCKHOLDERS
OF AN INDEPENDENTLY OWNED LESSOR.  THIS ARGUMENT WAS MADE BEFORE THE
COMMISSION BY AN INSTITUTIONAL INVESTORS GROUP COMMITTEE, WHICH
CONTENDED THAT THE ASSETS OF TERRE HAUTE SHOULD BE TREATED AS ASSETS OF
THE DEBTOR FOR PURPOSES OF REORGANIZATION.  THE COMMISSION REJECTED THE
ARGUMENT, SAYING:  "WE AGREE WITH THE GROUP OF TERRE HAUTE BONDHOLDERS
THAT THEY ARE NOT SUCH CREDITORS OF THE DEBTOR AS WOULD BE BOUND AS A
CLASS BY A CONFIRMED PLAN OF REORGANIZATION WHICH DIVESTED THEM OF
THEIR EXISTING LIENS UPON THE TERRE HAUTE PROPERTIES."  239 I.C.C. 485,
535.  SEE SWAINE, A DECADE OF RAILROAD REORGANIZATION UNDER SECTION 77
OF THE FEDERAL BANKRUPTCY ACT, 56 HARV. L. REV. 1193, 1217. 

FN16  THE DUAL STATUS OF A LESSOR WHOSE LEASE HAS BEEN, OR WILL BE,
REJECTED AND TO WHOM AN OFFER OF PURCHASE OR MODIFICATION IS MADE IS
EXPLAINED BY MECK, THE PROBLEMS OF THE LEASED LINE, 7 LAW AND CONTEMP. 
PROB.  509, 516, AS FOLLOWS:  "THE PLAN IN THEORY MUST DEAL WITH THE
LESSOR IN AT LEAST TWO CAPACITIES:  AS AN UNSECURED CREDITOR AND AS
OWNER OF THE LEASED LINE.  IN THE FORMER CAPACITY THE LESSOR WILL
RECEIVE THE SAME TREATMENT AS OTHER UNSECURED CREDITORS.  IN THE
LATTER, HOWEVER, THE LESSOR WILL BE TREATED IN ACCORDANCE WITH THE
VALUE OF THE LINE TO THE LESSEE."  SEE NOTE 6, SUPRA. 

FN17  THE OFFER OF PURCHASE MAY, AS WAS TRUE IN THIS CASE, INCLUDE A
PROVISION REQUIRING THE LESSOR-OFFEREE TO RENOUNCE THE CLAIMS IT COULD
OTHERWISE ASSERT AGAINST THE DEBTOR, INCLUDING CLAIMS FOR BREACH OF THE
LEASE AND FOR AMOUNTS DUE THE LESSOR UNDER THE LEASE OR OTHER
AGREEMENTS BETWEEN THE PARTIES.  261 I.C.C. 515.  THESE FACTORS ARE
TAKEN INTO CONSIDERATION IN DETERMINING THE AMOUNT TO BE OFFERED UNDER
THE PLAN.  SEE 261 I.C.C. AT 272 AND 295. 

FN18  CF. IN RE ADOLF GOBEL, INC., 80 F.2D 849, INVOLVING SEC. 77B
PROCEEDINGS, AND GREENBAUM V. LEHRENKRAUSS CORP., 73 F.2D 285, AN
EQUITY RECEIVERSHIP. 

FN19  SECTION 77(C)(6) PROVIDES:  "IF A LEASE OF A LINE OF RAILROAD
IS REJECTED, AND IF THE LESSEE, WITH THE APPROVAL OF THE JUDGE, SHALL
ELECT NO LONGER TO OPERATE THE LEASED LINE, IT SHALL BE THE DUTY OF THE
LESSOR AT THE END OF A PERIOD TO BE FIXED BY THE JUDGE TO BEGIN THE
OPERATION OF SUCH LINE, UNLESS THE JUDGE, UPON THE PETITION OF THE
LESSOR, SHALL DECREE AFTER HEARING THAT IT WOULD BE IMPRACTICABLE AND
CONTRARY TO THE PUBLIC INTEREST FOR THE LESSOR TO OPERATE THE SAID
LINE, IN WHICH EVENT IT SHALL BE THE DUTY OF THE LESSEE TO CONTINUE
OPERATION ON OR FOR THE ACCOUNT OF THE LESSOR UNTIL THE ABANDONMENT OF
SUCH LINE IS AUTHORIZED BY THE COMMISSION IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 1 OF TITLE 49, AS AMENDED." 

FN20  OPERATION OF THE BOSTON & PROVIDENCE RAILROAD FOR ITS ACCOUNT
IS NOW BEING CARRIED ON BY THE REORGANIZED NEW HAVEN PENDING COMPLETION
OF REORGANIZATION OF THE BOSTON & PROVIDENCE.  SEE IN RE NEW YORK, N.H.
& H.R. CO., 169 F.2D 337. 

FN21  CF. IN RE NEW YORK, N.H. & H.R. CO., 102 F.2D 923; GUARANTY
TRUST CO. V. HENWOOD, 86 F.2D 347; CENTRAL HANOVER BANK V. CALLAWAY,
135 F.2D 592. 

FN22 KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226; EX PARTE BALDWIN,
291 U.S. 610; MANDEVILLE V. CANTERBURY, 318 U.S. 47. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE RUTLEDGE CONCURS,
DISSENTING. 

THIS DECISION PERMITS CONTROL OVER THE PLAN OF REORGANIZATION TO BE
TAKEN FROM THE INTERSTATE COMMERCE COMMISSION AND THE DISTRICT COURT
CONTRARY TO THE PROVISIONS OF SEC. 77 AND ALLOWS A STATE COURT TO UNDO
WHAT THOSE FEDERAL AGENCIES HAVE APPROVED. 

THE PLAN APPROVED BY THE COMMISSION AND BY THE DISTRICT COURT
PROVIDES FOR THE "CONSOLIDATION, MERGER OR PURCHASE" OF THE PROPERTIES
OF SOUTH WESTERN IN LIEU OF CONTINUED OPERATION UNDER THE LEASE, "IF
THE LEASED PROPERTIES CAN BE ACQUIRED ON THE TERMS SET FORTH IN THE
PLAN." 

THE TERMS OF THE ACQUISITION ARE SET FORTH IN THE PLAN.  IF THE
LEASED LINES ARE ACQUIRED, SOUTH WESTERN SHALL WAIVE ANY DAMAGES ON
ACCOUNT OF BREACH OF THE LEASE AND IN RESPECT OF EQUIPMENT.  SECURITIES
ALLOCATED TO SOUTH WESTERN SHALL NOT BEAR INTEREST OR DIVIDENDS FOR ANY
PERIOD PRIOR TO THE ACQUISITION.  THE PLAN ALSO DETERMINES THE AMOUNT
OF THE ALLOTMENT TO SOUTH WESTERN WHICH THE COMMISSION AND THE COURT
APPROVED AS "FAIR AND EQUITABLE" AND "EQUAL THE VALUE OF THE
TRANSPORTATION PROPERTY." 

ON FEBRUARY 11, 1947, THE COMMISSION SUBMITTED THE PLAN TO ALL
CREDITORS, INCLUDING SOUTH WESTERN, FOR ACCEPTANCE OR REJECTION ON OR
BEFORE MIDNIGHT MARCH 28, 1947.  ON MARCH 13, 1947, THE DIRECTORS OF
SOUTH WESTERN ACCEPTED THE PLAN SUBJECT TO THE ASSENT OF THE HOLDERS OF
A MAJORITY OF ITS STOCK.  THE STOCKHOLDERS MET ON MARCH 28, 1947, AND
ACCEPTED THE PLAN BY A VOTE OF 30,137 TO 9,057.  ACCORDINGLY SOUTH
WESTERN MAILED ITS BALLOT APPROVING THE PLAN TO THE COMMISSION. 

THE RESULT OF THE BALLOTING WAS CERTIFIED BY THE COMMISSION TO THE
COURT.  THEREAFTER THE COURT HAD A HEARING AND CONFIRMED THE PLAN,
SPECIFICALLY RESERVING FOR LATER ADJUDICATION THE QUESTION WHETHER IT
HAD POWER TO ENJOIN ACTION IN A STATE COURT WHICH ATTEMPTED TO ANNUL
THE ACCEPTANCE OF THE PLAN BY SOUTH WESTERN.  SUBSEQUENTLY IT HELD A
HEARING, OVERRULED OBJECTIONS OF THE MINORITY OF SOUTH WESTERN'S
STOCKHOLDERS AND HELD THAT THE ACCEPTANCE BY SOUTH WESTERN WAS VALID
UNDER GEORGIA LAW.  IT ACCORDINGLY ISSUED THE INJUNCTION INVOLVED IN
THIS CASE. 

IT SEEMS PLAIN TO ME THAT THE COMMISSION AND THE REORGANIZATION COURT
HAD EXCLUSIVE JURISDICTION, SUBJECT TO JUDICIAL REVIEW, TO DETERMINE
THE QUESTION OF THE VALIDITY OF THE ACCEPTANCE OF THE PLAN TENDERED BY
THE OFFICERS OF SOUTH WESTERN.  THE VALIDITY OF THE ACCEPTANCE IS, OF
COURSE, A QUESTION OF STATE LAW.  BUT IT HAS BEEN ENTRUSTED BY CONGRESS
TO THESE FEDERAL AGENCIES. 

THE PLAN MUST FIRST BE APPROVED BY THE COMMISSION AND THEN CERTIFIED
TO THE COURT.  SEC. 77(D)(E).  THE COURT, AFTER HEARING, PASSES ON THE
PLAN; AND IF THE COURT APPROVES THE PLAN, IT CERTIFIES THAT FACT TO THE
COMMISSION.  SEC. 77(E).  THE COMMISSION THEN SUBMITS THE PLAN TO
CREDITORS AND STOCKHOLDERS (SEC. 77(E)), THE LESSOR AND ITS SECURITY
HOLDERS BEING INCLUDED IN THE DEFINITION OF CREDITOR.  SEC. 77(B).  SEE
GROUP OF INVESTORS V. MILWAUKEE R. CO., 318 U.S. 523, 549.  THE
COMMISSION MUST THEN DETERMINE THE RESULT OF THE BALLOTING AND CERTIFY
TO THE JUDGE "THE RESULTS OF SUCH SUBMISSION."  SEC. 77(E).  THE COURT
THEN "SHALL CONFIRM" THE PLAN IF SATISFIED (1) THAT THE REQUISITE
PERCENTAGE OF EACH CLASS OF CREDITORS AND STOCKHOLDERS HAS BEEN
OBTAINED AND (2) "THAT SUCH ACCEPTANCES HAVE NOT BEEN MADE OR PROCURED
BY ANY MEANS FORBIDDEN BY LAW."  SEC. 77(E).  ON CONFIRMATION OF THE
PLAN BY THE COURT, THE PLAN AND ORDER OF CONFIRMATION "SHALL, SUBJECT
TO THE RIGHT OF JUDICIAL REVIEW," BE BINDING UPON THE DEBTOR AND
STOCKHOLDERS AND "ALL CREDITORS SECURED OR UNSECURED, WHETHER OR NOT
ADVERSELY AFFECTED BY THE PLAN, AND WHETHER OR NOT THEIR CLAIMS SHALL
HAVE BEEN FILED, AND, IF FILED, WHETHER OR NOT APPROVED, INCLUDING
CREDITORS WHO HAVE NOT, AS WELL AS THOSE WHO HAVE, ACCEPTED IT."  SEC.
77(F). 

DEBTOR OR ANY OTHER CORPORATION ORGANIZED TO CARRY OUT THE PLAN "SHALL
HAVE FULL POWER AND AUTHORITY TO, AND SHALL PUT INTO EFFECT AND CARRY
OUT THE PLAN AND THE ORDERS OF THE JUDGE RELATIVE THERETO, UNDER AND
SUBJECT TO THE SUPERVISION AND THE CONTROL OF THE JUDGE, THE LAWS OF
ANY STATE OR THE DECISION OR ORDER OF ANY STATE AUTHORITY TO THE
CONTRARY NOTWITHSTANDING."  AND SEC. 77(J), WITH EXCEPTIONS NOT
MATERIAL HERE, GIVES THE COURT POWER TO ENJOIN OR STAY THE COMMENCEMENT
OF ANY SUIT AGAINST THE DEBTOR UNTIL AFTER FINAL DECREE.  FN1    THE
CONTROL OF THE COURT OVER THE ACCEPTANCE OF THE PLAN AND OVER ITS
CONFIRMATION IS ONE OF THE HISTORIC INSTANCES OF THE "EXCLUSIVE
JURISDICTION" VESTED IN THE COURT BY SEC. 77(A).  THE EXCLUSIVE
JURISDICTION OF THE REORGANIZATION COURT IS ONE WHICH HERETOFORE WE
HAVE ZEALOUSLY GUARDED AGAINST ENCROACHMENTS BY STATE COURTS.  SEE
THOMPSON V. TEXAS MEXICAN R. CO., 328 U.S. 134.  THAT EXCLUSIVE
JURISDICTION IS NOT RESTRICTED TO PROTECTION OF THE COURT'S POSSESSION
OF THE PROPERTY AND OPERATION OF THE BUSINESS.  SECTION 77(E) GIVES THE
REORGANIZATION COURT THE SOLE AUTHORITY TO DETERMINE WHETHER THE
ACCEPTANCES OF THE PLAN HAVE BEEN MADE OR PROCURED "BY ANY MEANS
FORBIDDEN BY LAW."  IN THIS CASE THAT PLAINLY MEANS THAT THE
REORGANIZATION COURT ALONE HAD THE POWER TO ASCERTAIN WHETHER THE
REQUISITE VOTE OF THE DIRECTORS AND STOCKHOLDERS OF SOUTH WESTERN HAD
BEEN CAST IN FAVOR OF THE PLAN.  ONCE IT DETERMINED THAT LAWFUL
CORPORATE ACTION HAD BEEN TAKEN BY SOUTH WESTERN, THEN SEC. 77(F) BOUND
ALL OF SOUTH WESTERN'S STOCKHOLDERS, SINCE THEY ARE INCLUDED IN THE
DEFINITION OF CREDITORS FOR THE PURPOSES OF THE ACT.  SEE GROUP OF
INVESTORS V. MILWAUKEE R. CO., SUPRA.  AND THEN THE REORGANIZATION
COURT HAD THE EXPRESS POWER UNDER SEC. 77(F) TO PUT THE PLAN INTO
EFFECT - "THE LAWS OF ANY STATE OR THE DECISION OR ORDER OF ANY STATE
AUTHORITY TO THE CONTRARY NOTWITHSTANDING." 

THIS IS PRECISELY ONE OF THOSE SITUATIONS WHERE THE BANKRUPTCY COURT,
IF ITS EXCLUSIVE JURISDICTION IS TO BE MAINTAINED, MUST HAVE THE POWER
TO ENJOIN ACTION IN STATE COURTS.  IT HAS LONG BEEN RECOGNIZED TO HAVE
THAT AUTHORITY IN ORDER TO PROTECT ITS DECREE.  SEE LOCAL LOAN CO. V.
HUNT, 292 U.S. 234.  AND THE POLICY REFLECTED IN OLD SEC. 265 OF THE
JUDICIAL CODE - NOW 28 U.S.C. SEC. 2283 - WHICH FROWNED ON THE STAY OF
STATE PROCEEDINGS BY FEDERAL COURTS, HAS FOR YEARS RECOGNIZED
BANKRUPTCY JURISDICTION AS AN EXCEPTION.  SEE TOUCEY V. N.Y. LIFE INS.
CO., 314 U.S. 118, 132.  IT WAS IN RECOGNITION OF THE NECESSITY FOR
THAT POWER THAT CONGRESS WROTE SUBDIVISION (J) INTO SEC. 77. 

IF A STATE COURT CAN HOLD INVALID ACCEPTANCES WHOSE VALIDITY HAS BEEN
APPROVED BY THE COMMISSION AND THE DISTRICT COURT, THEN THE FEDERAL
AGENCIES HAVE LOST MUCH OF THE EXCLUSIVE JURISDICTION WHICH CONGRESS
GRANTED THEM.  THERE ARE MYRIAD QUESTIONS OF STATE LAW UNDERLYING THE
CONSUMMATION OF EVERY PLAN OF REORGANIZATION.  THERE IS THE QUESTION
WHETHER THE NEW COMPANY IS VALIDLY ORGANIZED; WHETHER PROXIES ARE
EXECUTED IN PURSUANCE OF THE PROVISIONS OF THE STATE CODE; WHETHER THE
CHARTER OF A CORPORATION CAN CONTAIN CERTAIN KINDS OF PROVISIONS,
AUTHORIZE CERTAIN TYPES OF SECURITIES, ETC., ETC.  IF STATE COURTS CAN
INTRUDE WITH INJUNCTIONS ON SUCH STATE LAW QUESTIONS, THE EXCLUSIVE
COMMAND OF THE FEDERAL AGENCIES OVER THE REORGANIZATION PROCESS IS
LOST, ITS EFFICIENCY IS UNDERMINED, AND MINORITIES ARE GIVEN LEVERAGES
WHICH THE SCHEME OF SEC. 77 EXPLICITLY DENIES. 

FN1 THIS SUBSECTION PROVIDES IN PART:  "IN ADDITION TO THE PROVISIONS
OF SECTION 29 OF THIS TITLE FOR THE STAYING OF PENDING SUITS AGAINST
THE DEBTOR, THE JUDGE MAY ENJOIN OR STAY THE COMMENCEMENT OR
CONTINUATION OF SUITS AGAINST THE DEBTOR UNTIL AFTER FINAL DECREE  ...
"
..END :



















FISHER V. PACE, 336 U.S. 155 


NO. 45.  ARGUED DECEMBER 9, 1948.  - DECIDED FEBRUARY 7, 1949.  - 146
TEX. 328, 206 S.W.2D 1000, AFFIRMED. 


1.  IN A WORKMEN'S COMPENSATION PROCEEDING IN A TEXAS STATE COURT,
COUNSEL FOR THE CLAIMANT, IN HIS ARGUMENT TO THE JURY, PERSISTED IN
REFERRING TO MATTERS WHICH, UNDER TEXAS LAW AND AS THE JUDGE TWICE
ADMONISHED HIM, WERE OUTSIDE THE ISSUES FOR THE JURY, AND HE WAS
SUMMARILY FINED $25 FOR CONTEMPT.  AN ALTERCATION BETWEEN COUNSEL AND
THE JUDGE FOLLOWED, DURING WHICH THE FINE WAS INCREASED TO $50, THEN A
3-DAY JAIL SENTENCE WAS ADDED, AND FINALLY A SENTENCE OF $100 FINE AND
3 DAYS IN JAIL WAS IMPOSED.  THE STATE SUPREME COURT UPHELD THE
SENTENCE.  HELD:  UPON THE RECORD IN THIS CASE, COUNSEL WAS NOT DENIED
DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION.  PP. 156-163. 

2.  THE INHERENT POWER OF COURTS TO PUNISH SUMMARILY FOR CONTEMPTS
COMMITTED IN THEIR PRESENCE IS ESSENTIAL TO PRESERVE THEIR AUTHORITY
AND TO PREVENT THE ADMINISTRATION OF JUSTICE FROM FALLING INTO
DISREPUTE; AND SUCH SUMMARY PROCEDURE AFFORDS DUE PROCESS OF LAW.  PP.
159-160. 

3.  THE MILDLY PROVOCATIVE LANGUAGE OF THE TRIAL JUDGE DID NOT EXCUSE
COUNSEL'S SHOW OF CONTEMPT FOR JUDGE AND COURT WHICH THE RECORD IN THIS
CASE MANIFESTS.  P. 163. 

FISHER V. PACE, SHERIFF. 

CERTIORARI TO THE SUPREME COURT OF TEXAS. 

IN A STATE COURT IN WHICH HE WAS PARTICIPATING AS COUNSEL IN THE
TRIAL OF A WORKMEN'S COMPENSATION CASE, PETITIONER WAS SUMMARILY
CONVICTED AND SENTENCED FOR A CONTEMPT OF COURT.  IN A HABEAS CORPUS
PROCEEDING, THE STATE SUPREME COURT UPHELD THE CONVICTION.  146 TEX.
328, 206 S.W.2D 1000.  THIS COURT GRANTED CERTIORARI.  334 U.S. 827. 
AFFIRMED, P. 163. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

WHILE PARTICIPATING AS COUNSEL IN THE TRIAL OF A CAUSE THE
PETITIONER, JOE J. FISHER, WAS ADJUDGED GUILTY OF CONTEMPT COMMITTED IN
THE PRESENCE OF THE COURT BY THE DISTRICT COURT OF JASPER COUNTY,
TEXAS.  THE PETITIONER'S CLIENT WAS THE PLAINTIFF IN AN ACTION UNDER
THE STATE WORKMEN'S COMPENSATION LAW.  THE CASE WAS BEING TRIED BEFORE
A JURY AND THE PARTIES HAD STIPULATED AS TO THE AVERAGE WEEKLY WAGE OF
THE CLAIMANT AND THE RATE OF COMPENSATION PER WEEK.  THE ONLY REMAINING
QUESTIONS TO BE DETERMINED WERE AS TO THE EXTENT AND DURATION OF THE
INCAPACITY RESULTING FROM AN INJURY TO THE CLAIMANT'S FOOT.  SEVEN
SPECIAL ISSUES, DESIGNED TO FURNISH AN ANSWER TO THESE PROBLEMS AND
LIMITED TO THEM, WERE SUBMITTED TO THE JURY. 

THEREAFTER PETITIONER BEGAN HIS OPENING ARGUMENT TO THE JURY DURING
WHICH THE FOLLOWING OCCURRENCE TOOK PLACE, AS SHOWN BY THE TRIAL
COURT'S ORDER OF CONTEMPT AND COMMITMENT:

          "OPENING ARGUMENT TO JURY OF PLAINTIFF'S ATTORNEY,

                     JOE J. FISHER 

"NOW, BEAR IN MIND, GENTLEMEN, THAT THIS IS WHAT WE CALL A SPECIFIC
INJURY.  A GENERAL INJURY IS AN INJURY TO THE ENTIRE BODY.  THIS IS
WHAT IS KNOWN AS A SPECIFIC INJURY, AND IT IS CONFINED TO THE LEFT
FOOT.  WE HAVE SPECIFIC INJURIES WHERE YOU HAVE INJURIES TO THE EYE, TO
YOUR HAND, AND TO YOUR FOOT; THIS IS AN INJURY TO THE FOOT, TO THE LEFT
FOOT; AND THE LAW STATES THE AMOUNT OF MAXIMUM COMPENSATION WHICH A
PERSON CAN RECEIVE FOR SUCH AN INJURY, THAT IS, ONE HUNDRED AND TWENTY
FIVE WEEKS.  THAT IS THE MOST COMPENSATION ANDERSON GODFREY COULD
RECEIVE, WOULD BE ONE HUNDRED AND TWENTY-FIVE WEEKS, BECAUSE HIS INJURY
IS CONFINED TO HIS LEFT FOOT.  THAT IS ALL WE ARE ASKING.  NOW, THAT
MEANS ONE HUNDRED AND TWENTY-FIVE WEEKS TIMES THE AVERAGE WEEKLY
COMPENSATION RATE. 

"BY MR. COX:  YOUR HONOR PLEASE - 

"BY THE COURT:  WAIT A MINUTE. 

"BY MR. COX:  THE JURY IS NOT CONCERNED WITH THE COMPUTATION; IT HAS
ONLY ONE SERIES OF ISSUES.  THAT IS NOT BEFORE THE JURY. 

"BY THE COURT: THAT HAS ALL BEEN AGREED UPON. 

"BY MR. FISHER:  I THINK IT IS MATERIAL, YOUR HONOR, TO TELL THE JURY
WHAT THE AVERAGE WEEKLY COMPENSATION IS OF THIS CLAIMANT SO THEY CAN
TELL WHERE HE IS. 

"BY THE COURT:  THEY ARE NOT INTERESTED IN DOLLARS AND CENTS. 

"BY MR. FISHER:  THEY ARE INTERESTED TO THIS EXTENT - 

"BY THE COURT:  DON'T ARGUE WITH ME.  GO AHEAD.  I WILL GIVE YOU YOUR
EXCEPTION TO IT. 

"BY MR. FISHER:  NOTE OUR EXCEPTION. 

"BY THE COURT:  ALL RIGHT. 

"(BY MR. FISHER:)  THIS NEGRO, AS I STATED, CAN ONLY RECOVER ONE
HUNDRED AND TWENTY-FIVE WEEKS COMPENSATION, AT WHATEVER COMPENSATION
THE RATE WILL FIGURE UNDER THE LAW. 

"BY MR. COX:  I AM OBJECTING TO THAT DISCUSSION, YOUR HONOR, AS TO
WHAT THE PLAINTIFF CAN RECOVER. 

"BY THE COURT:  GENTLEMEN.  MR. FISHER, YOU KNOW THE RULE, AND I HAVE
SUSTAINED HIS OBJECTION. 

"BY MR. FISHER:  I AM ASKING - 

"BY THE COURT:  DON'T ARGUE WITH ME.  GENTLEMEN, DON'T GIVE ANY
CONSIDERATION TO THE STATEMENT OF MR. FISHER. 

"BY MR. FISHER:  NOTE OUR EXCEPTION.  I THINK I HAVE A RIGHT TO
EXPLAIN WHETHER IT IS A SPECIFIC INJURY OR GENERAL INJURY. 

"BY THE COURT:  I WILL DECLARE A MISTRIAL IF YOU MESS WITH ME TWO
MINUTES AND A HALF, AND FINE YOU BESIDES. 

"BY MR. FISHER:  THAT IS ALL RIGHT.  WE TAKE EXCEPTION TO THE CONDUCT
OF THE COURT. 

"BY THE COURT:  THAT IS ALL RIGHT; I WILL FINE YOU $25.00. 

"BY MR. FISHER:  IF THAT WILL GIVE YOU ANY SATISFACTION. 

"BY THE COURT:  THAT IS $50.00; THAT IS $25.00 MORE.  MR. SHERIFF
COME GET IT.  PAY THE CLERK $50.00. 

"BY MR. FISHER:  YOU MEAN FOR TRYING TO REPRESENT MY CLIENT? 

"BY THE COURT:  NO, SIR; FOR CONTEMPT OF COURT.  DON'T ARGUE WITH
ME. 

"BY MR. FISHER:  I AM MAKING NO EFFORT TO COMMIT CONTEMPT, BUT MERELY
TRYING TO REPRESENT THE PLAINTIFF AND STATING IN THE ARGUMENT - 

"BY THE COURT:  DON'T TELL ME.  MR. SHERIFF, TAKE HIM OUT OF THE
COURTROOM.  GO ON OUT OF THE COURTROOM.  I FINE YOU THREE DAYS IN
JAIL. 

"BY MR. FISHER:  IF THAT WILL GIVE YOU ANY SATISFACTION; YOU KNOW YOU
HAVE ALL THE ADVANTAGE BY YOU BEING ON THE BENCH. 

"BY THE COURT:  THAT WILL BE A HUNDRED DOLLAR FINE AND THREE DAYS IN
JAIL.  TAKE HIM OUT. 

"BY MR. FISHER:  I DEMAND A RIGHT TO STATE MY POSITION BEFORE THE
AUDIENCE. 

"BY THE COURT:  DON'T LET HIM STAND THERE.  TAKE HIM OUT." 

THE SHERIFF HELD THE PETITIONER IN CUSTODY UPON THE VERBAL ORDER OF
THE COURT UNTIL AN AMENDED ORDER IN CONFORMITY WITH TEXAS LAW,  FN1
SETTING FORTH IN FULL THE ABOVE PROCEEDINGS TOGETHER WITH A FORMAL
COMMITMENT, WAS FILED LATER THE SAME DAY.  UPON HIS APPLICATION FOR A
WRIT OF HABEAS CORPUS FROM THE SUPREME COURT OF TEXAS TO SECURE HIS
RELEASE FROM THE COMMITMENT, THE JUDGMENT FOR CONTEMPT WAS UPHELD AND
THE PETITIONER WAS DENIED ANY RELIEF BY THAT COURT AND WAS REMANDED TO
THE CUSTODY OF THE SHERIFF TO UNDERGO THE PUNISHMENT ADJUDGED BY THE
TRIAL COURT.  EX PARTE FISHER, 146 TEX. 328, 206 S.W.2D 1000.  AS THE
APPLICATION ALLEGED A DENIAL OF DUE PROCESS OF LAW UNDER THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, WE GRANTED
CERTIORARI TO CONSIDER ITS APPLICATION TO THIS CONVICTION FOR
CONTEMPT.  334 U.S. 827.  THE CLAIMED DENIAL OF DUE PROCESS CONSISTS OF
AN ALLEGED REFUSAL TO REVIEW THE FACTS TO ASCERTAIN WHETHER A CONTEMPT
WAS COMMITTED AND IN THE ALTERNATIVE, IF THE FACTS WERE REVIEWED, DUE
PROCESS WAS DENIED BECAUSE NO FACTS CONSTITUTING CONTEMPT APPEAR. 

HISTORICALLY AND RATIONALLY THE INHERENT POWER OF COURTS TO PUNISH
CONTEMPTS IN THE FACE OF THE COURT WITHOUT FURTHER PROOF OF FACTS AND
WITHOUT AID OF JURY IS NOT OPEN TO QUESTION.  FN2  THIS ATTRIBUTE OF
COURTS IS ESSENTIAL TO PRESERVE THEIR AUTHORITY AND TO PREVENT THE
ADMINISTRATION OF JUSTICE FROM FALLING INTO DISREPUTE.  SUCH SUMMARY
CONVICTION AND PUNISHMENT ACCORDS DUE PROCESS OF LAW.  FN3 

THERE MUST BE ADEQUATE FACTS TO SUPPORT AN ORDER FOR CONTEMPT IN THE
FACE OF THE COURT.  CONTRARY TO THE CONTENTION OF THE PETITIONER THE
STATE SUPREME COURT EVALUATED THE FACTS TO DECIDE WHETHER THERE WAS
SUFFICIENT EVIDENCE TO SUPPORT THE JUDGMENT OF THE TRIAL COURT AND HELD
THAT THERE WAS.  THE OPINION OF THE TEXAS SUPREME COURT STATES THAT THE
COURT SET OUT TO REVIEW THE FACTS "FOR THE PURPOSE OF DETERMINING
WHETHER THEY CONSTITUTED ACTS SUFFICIENT TO CONFER JURISDICTION UPON
THE COURT" TO ENTER THE CONTEMPT ORDER.  FN4  IN OTHER WORDS, THE
HIGHEST COURT OF THE STATE PROPOSED TO SATISFY ITSELF THAT THERE WAS
SUBSTANTIAL EVIDENCE TO VALIDATE THE JUDGMENT OF CONTEMPT AND TO INSURE
THAT PETITIONER WAS NOT "RESTRAINED OF HIS LIBERTY WITHOUT DUE PROCESS
OF LAW."  AFTER A CAREFUL ANALYSIS OF THE FACTS AS DISCLOSED BY THE
JUDGMENT OF THE TRIAL COURT, THE CONCLUSION WAS REACHED THAT THE
CONDUCT OF THE PETITIONER WAS CLEARLY SUFFICIENT TO SUPPORT THE POWER
OF THE COURT TO PUNISH SUMMARILY THE CONTEMPT COMMITTED IN ITS
PRESENCE. 

THE JUDGMENT OF THE SUPREME COURT OF TEXAS MUST BE AFFIRMED.  IN A
CASE OF THIS TYPE THE TRANSCRIPT OF THE RECORD CANNOT CONVEY TO US THE
COMPLETE PICTURE OF THE COURTROOM SCENE.  IT DOES NOT DEPICT SUCH
ELEMENTS OF MISBEHAVIOR AS EXPRESSION, MANNER OF SPEAKING, BEARING, AND
ATTITUDE OF THE PETITIONER.  RELIANCE MUST BE PLACED UPON THE FAIRNESS
AND OBJECTIVITY OF THE PRESIDING JUDGE.  THE OCCURRENCE MUST BE VIEWED
AS A UNIT IN ORDER TO APPRAISE PROPERLY THE MISCONDUCT, AND THE
RELATIONSHIP OF THE PETITIONER AS AN OFFICER OF THE COURT MUST NOT BE
LOST SIGHT OF.  FN5 

THE STATE SUPREME COURT POINTED OUT THAT ITS PRACTICE OF SUBMITTING
SPECIAL ISSUES TO THE JURY WAS ADOPTED IN ORDER TO REMOVE FROM THE
JURY'S CONSIDERATION THE EFFECT ON THE ULTIMATE OUTCOME OF THE CASE OF
THEIR ANSWERS TO QUESTIONS OF DISPUTED FACTS.  FN6  IN THIS CASE, THE
JURY MIGHT BE TEMPTED TO FIND A LONG INCAPACITY OR A SEVERE INJURY IF
THEY KNEW THE AMOUNT OF RECOVERY WAS LIMITED BY THE EMPLOYEE'S WAGE AND
RATE OF COMPENSATION.  COUNSEL ARE REQUIRED TO CONFINE THEIR ARGUMENTS
TO THE EVIDENCE AND MUST NOT TOUCH UPON MATTERS WITHDRAWN FROM THE
CONSIDERATION OF THE JURY.  FN7  YET HERE, PETITIONER, A MEMBER OF THE
TEXAS BAR, IGNORED THIS RULE AND AT THE OUTSET OF HIS ADDRESS TO THE
JURY EXCEEDED THE BOUNDS OF PERMISSIBLE ARGUMENT BY TRYING TO TELL THE
JURY THE MAXIMUM COMPENSATION WHICH THEIR ANSWERS TO THE SPECIAL ISSUES
WOULD ALLOW HIS CLIENT.  ON OBJECTION OF THE OPPOSING COUNSEL
PETITIONER WAS STOPPED BY THE TRIAL JUDGE, BUT IN THE FACE OF THE
COURT'S DECISION HE PERSISTED IN TRYING TO TELL THE JURY THE EFFECT OF
THEIR ANSWERS.  HE SWITCHED HIS EXPLANATION OF THE STIPULATED AMOUNT OF
RECOVERY FROM THE WORDS "ONE HUNDRED AND TWENTY-FIVE WEEKS TIMES THE
AVERAGE WEEKLY COMPENSATION RATE" TO "ONE HUNDRED AND TWENTY-FIVE WEEKS
COMPENSATION, AT WHATEVER COMPENSATION THE RATE WILL FIGURE UNDER THE
LAW."  THE CHANGE OBVIOUSLY BROUGHT BEFORE THE JURY INFORMATION ON THE
LIMITATION TO THE AMOUNT OF RECOVERY - A FACTOR HELD BY THE TRIAL JUDGE
INADMISSIBLE UNDER THE SPECIAL ISSUES.  IN ADDITION TO THIS STUBBORN
EFFORT TO BRING EXCLUDED MATTER TO THE KNOWLEDGE OF THE JURY, THE
PETITIONER TWICE REFUSED TO HEED THE COURT'S ADMONITION NOT TO ARGUE
THE POINT.  AS THE SUPREME COURT SAID, 

"IT WAS THE DUTY AND POWER OF THE TRIAL JUDGE IN THE TRIAL OF THE
COMPENSATION SUIT TO DETERMINE THE TYPE, MANNER AND CHARACTER OF THE
ARGUMENT BEFORE THE JURY.  OF COURSE HIS RULINGS THEREON WERE SUBJECT
TO REVIEW IN THE APPELLATE COURTS, BUT HE HAS THE POWER TO MAKE THEM
WHETHER RIGHT OR WRONG.  IF THEY ARE ERRONEOUS THE INJURED PARTY HAS
THE PLAIN, SIMPLE AND ADEQUATE REMEDY OF APPEAL.  IT WAS THUS THE DUTY
OF COUNSEL TO ABIDE BY HIS DECISIONS EVEN IF ERRONEOUS; AND IF ANY
RIGHTS OF HIS CLIENTS WERE VIOLATED THE REMEDY WAS BY EXCEPTION AND
APPEAL.  ANY OTHER PROCEDURE WOULD RESULT IN MOCKERY OF OUR TRIAL
COURTS AND WOULD DESTROY EVERY CONCEPT OF ORDERLY PROCESS IN THE
ADMINISTRATION OF JUSTICE."  FN8 

THIS JUDGMENT OF THE SUPREME COURT TURNED ON THEIR UNDERSTANDING OF
TEXAS LAW AND PRACTICE.  WE SEE NOTHING IN THEIR OPINION OR CONCLUSION
THAT INDICATES ANY DISREGARD OF PETITIONER'S RIGHTS.  THE CONDUCT OF A
JUDGE SHOULD BE SUCH AS TO COMMAND RESPECT FOR HIMSELF AS WELL AS FOR
HIS OFFICE.  WE CANNOT SAY, HOWEVER, THAT MILDLY PROVOCATIVE LANGUAGE
FROM THE BENCH PUTS A CONSTITUTIONAL PROTECTION AROUND AN ATTORNEY SO
AS TO ALLOW HIM TO SHOW THE CONTEMPT FOR JUDGE AND COURT MANIFESTED BY
THIS RECORD, PARTICULARLY THE LAST FEW SENTENCES OF THE ALTERCATION. 

THE JUDGMENT OF THE SUPREME COURT OF TEXAS ACCORDINGLY IS AFFIRMED. 

FN1  EX PARTE KEARBY, 35 TEX. CRIM. REP. 531, 34 S.W. 635; EX PARTE
RAY, 101 TEX. CRIM. REP. 432, 276 S.W. 709. 

FN2  4 BL. COMM. 286; EX PARTE TERRY, 128 U.S. 289, 302-304, 313-14;
EX PARTE SAVIN, 131 U.S. 267, 277; EILENBECKER V. DISTRICT COURT, 134
U.S. 31, 36-37; COOKE V. UNITED STATES, 267 U.S. 517, 534-36; IN RE
OLIVER, 333 U.S. 257, 274-75. 

FN3  EX PARTE TERRY, 128 U.S. 289, 313:  "WE HAVE SEEN THAT IT IS A
SETTLED DOCTRINE IN THE JURISPRUDENCE BOTH OF ENGLAND AND OF THIS
COUNTRY, NEVER SUPPOSED TO BE IN CONFLICT WITH THE LIBERTY OF THE
CITIZEN, THAT FOR DIRECT CONTEMPTS COMMITTED IN THE FACE OF THE COURT,
AT LEAST ONE OF SUPERIOR JURISDICTION, THE OFFENDER MAY, IN ITS
DISCRETION, BE INSTANTLY APPREHENDED AND IMMEDIATELY IMPRISONED,
WITHOUT TRIAL OR ISSUE, AND WITHOUT OTHER PROOF THAN ITS ACTUAL
KNOWLEDGE OF WHAT OCCURRED; AND THAT, ACCORDING TO AN UNBROKEN CHAIN OF
AUTHORITIES, REACHING BACK TO THE EARLIEST TIMES, SUCH POWER, ALTHOUGH
ARBITRARY IN ITS NATURE AND LIABLE TO ABUSE, IS ABSOLUTELY ESSENTIAL TO
THE PROTECTION OF THE COURTS IN THE DISCHARGE OF THEIR FUNCTIONS. 
WITHOUT IT, JUDICIAL TRIBUNALS WOULD BE AT THE MERCY OF THE DISORDERLY
AND VIOLENT, WHO RESPECT NEITHER THE LAWS ENACTED FOR THE VINDICATION
OF PUBLIC AND PRIVATE RIGHTS, NOR THE OFFICERS CHARGED WITH THE DUTY OF
ADMINISTERING THEM." 

SEE ALSO COOKE V. UNITED STATES, SUPRA, 534; EX PARTE HUDGINGS, 249
U.S. 378, 383. 

FN4  THIS RULE IS WELL ESTABLISHED IN TEXAS.  EX PARTE TESTARD, 101
TEX. 250, 106 S.W. 319; EX PARTE DULANEY, 146 TEX. 108, 203 S.W.2D
203.  FOR OTHER CASES SEE THE OPINION IN THE INSTANT CASE, EX PARTE
FISHER, 146 TEX. 328, 333, 206 S.W.2D 100, 1003. 

FN5  CLARK V. UNITED STATES, 289 U.S. 1, 12. 

FN6  EX PARTE FISHER, 146 TEX. 328, 334-335, 206 S.W.2D 1000, 1004
1005. 

FN7  RULE 269, VERNON'S TEXAS RULES OF CIVIL PROCEDURE; RAMIREZ V.
ACKER, 134 TEX. 647, 138 S.W.2D 1054. 

FN8 146 TEX. 328, 335, 206 S.W.2D 1000, 1005; CF. UNITED STATES V.
UNITED MINE WORKERS, 330 U.S. 258, 293, 302-303.    MR. JUSTICE
DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS, DISSENTING. 

THE POWER TO PUNISH FOR CONTEMPT COMMITTED IN OPEN COURT WAS
RECOGNIZED LONG AGO AS A MEANS OF VINDICATING THE DIGNITY AND AUTHORITY
OF THE COURT.  SEE EX PARTE TERRY, 128 U.S. 289, 301-304 AND CASES
CITED.  BUT ITS EXERCISE MUST BE NARROWLY CONFINED LEST IT BECOME AN
INSTRUMENT OF TYRANNY.  CHIEF JUSTICE TAFT IN COOKE V. UNITED STATES,
267 U.S. 517, 539, WARNED THAT ITS EXERCISE BY A FEDERAL COURT IS "A
DELICATE ONE AND CARE IS NEEDED TO AVOID ARBITRARY OR OPPRESSIVE
CONCLUSIONS."  THE SAME RESTRAINT IS NECESSARY UNDER OUR CONSTITUTIONAL
SCHEME WHEN STATE COURTS ARE CLAIMING THE RIGHT TO TAKE A PERSON BY THE
HEELS AND FINE OR IMPRISON HIM FOR CONTEMPT WITHOUT A TRIAL OR AN
OPPORTUNITY TO DEFEND.  IN BRIDGES V. CALIFORNIA, 314 U.S. 252;
PENNEKAMP V. FLORIDA, 328 U.S. 331; AND CRAIG V. HARNEY, 331 U.S. 367,
WE NARROWLY RESTRICTED THE POWER TO PUNISH SUMMARILY FOR CONSTRUCTIVE
CONTEMPTS IN ORDER TO MAINTAIN FREEDOM OF PRESS AND OF SPEECH IN THEIR
PREFERRED POSITION.  FREEDOM OF SPEECH IN THE COURTROOM DESERVES THE
SAME PROTECTION. 

FISHER'S CONVICTION IS SUSTAINED BECAUSE IT IS SAID THAT HE PERSISTED
IN TRYING TO TELL THE JURY WHAT THE JUDGE HELD TO BE IMPROPER.  I DO
NOT SO READ THE RECORD.  THE JUDGE SUSTAINED AN OBJECTION TO FISHER'S
ATTEMPT TO GET THE AVERAGE WEEKLY COMPENSATION OF THE INJURED PERSON
BEFORE THE JURY, AS APPEARS FROM THE FOLLOWING COLLOQUY: 

"BY MR. COX:  THE JURY IS NOT CONCERNED WITH THE COMPUTATION; IT HAS
ONLY ONE SERIES OF ISSUES.  THAT IS NOT BEFORE THE JURY. 

"BY THE COURT:  THAT HAS ALL BEEN AGREED UPON. 

"BY MR. FISHER:  I THINK IT IS MATERIAL, YOUR HONOR, TO TELL THE JURY
WHAT THE AVERAGE WEEKLY COMPENSATION IS OF THIS CLAIMANT SO THEY CAN
TELL WHERE HE IS. 

"BY THE COURT:  THEY ARE NOT INTERESTED IN DOLLARS AND CENTS. 

"BY MR. FISHER:  THEY ARE INTERESTED TO THIS EXTENT - 

"BY THE COURT:  DON'T ARGUE WITH ME.  GO AHEAD.  I WILL GIVE YOU YOUR
EXCEPTION TO IT. 

"BY MR. FISHER:  NOTE OUR EXCEPTION. 

"BY THE COURT:  ALL RIGHT." 

FISHER NEVER AGAIN TRIED TO GET THE AMOUNT OF WEEKLY COMPENSATION OF
THE INJURED PERSON INTO THE RECORD.  HE ABIDED BY THE RULING OF THE
JUDGE.  WHAT NEXT HAPPENED WAS AS FOLLOWS: 

"BY MR. FISHER:  THIS NEGRO, AS I STATED, CAN ONLY RECOVER ONE
HUNDRED AND TWENTY-FIVE WEEKS COMPENSATION, AT WHATEVER COMPENSATION
THE RATE WILL FIGURE UNDER THE LAW. 

"BY MR. COX:  I AM OBJECTING TO THAT DISCUSSION, YOUR HONOR, AS TO
WHAT THE PLAINTIFF CAN RECOVER. 

"BY THE COURT:  GENTLEMEN.  MR. FISHER, YOU KNOW THE RULE, AND I HAVE
SUSTAINED HIS OBJECTION. 

"BY MR. FISHER:  I AM ASKING - 

"BY THE COURT:  DON'T ARGUE WITH ME.  GENTLEMEN, DON'T GIVE ANY
CONSIDERATION TO THE STATEMENT OF MR. FISHER. 

"BY MR. FISHER:  NOTE OUR EXCEPTION.  I THINK I HAVE A RIGHT TO
EXPLAIN WHETHER IT IS A SPECIFIC INJURY OR GENERAL INJURY." 

FISHER'S STATEMENT THAT, "THIS NEGRO, AS I STATED, CAN ONLY RECOVER
ONE HUNDRED AND TWENTY-FIVE WEEKS COMPENSATION, AT WHATEVER
COMPENSATION THE RATE WILL FIGURE UNDER THE LAW," DID NOT MENTION THE
MATTER OF "DOLLARS AND CENTS" THAT THE JUDGE HELD IRRELEVANT.  IT WAS
NOT A NEW ATTEMPT BY FISHER TO GET THE "AVERAGE WEEKLY COMPENSATION"
BEFORE THE JURY.  YET THE RECORD CAN BE READ AS MEANING THAT THEY WERE
THE ONLY SPECIFIC MATTERS ON WHICH THE JUDGE HAD RULED.  AS JUSTICE
SHARP, DISSENTING IN THE TEXAS SUPREME COURT, STATED, "THIS STATEMENT
DOES NOT INDICATE THAT RELATOR WAS DISOBEYING THE RULING OF THE COURT,
BUT, ON THE CONTRARY, SHOWS THAT HE WAS TRYING TO OBEY SAME."  IT ALSO
MEANS TO ME THAT HE WAS SEEKING TO PERFECT THE RECORD SO AS TO PRESERVE
ALL OF HIS POINTS. 

IT IS SAID THAT THE STATEMENT WAS IMPROPER UNDER TEXAS PRACTICE.  BUT
IT TOOK A RULING OF THE TEXAS SUPREME COURT TO MAKE IT SO, AND EVEN
THEN JUSTICE SHARP DISSENTED.  IF TEXAS LAW ON THE POINT IS SO
UNCERTAIN THAT THE HIGHEST JUDGES OF THE STATE DISAGREE AS TO WHAT IS
THE PERMISSIBLE PRACTICE, IS A LAWYER TO BE LAID BY THE HEELS FOR
PRESSING THE POINT?  YET IT WAS FOR PRESSING THE POINT OF LAW ON WHICH
THE SUPREME COURT OF TEXAS DIVIDED THAT FISHER WAS HELD IN CONTEMPT. 

IT IS SAID, HOWEVER, THAT SUCH ELEMENTS OF MISBEHAVIOR AS EXPRESSION,
MANNER OF SPEAKING, BEARING, AND ATTITUDE OF FISHER MAY HAVE GIVEN THE
WORDS A CONTEMPTUOUS FLAVOR THAT THE COLD RECORD DOES NOT REVEAL.  I DO
NOT THINK FREEDOM OF SPEECH SHOULD BE SO READILY SACRIFICED, EVEN IN A
COURTROOM.  IF THAT WERE THE OFFENSE, IT IS NOT TOO MUCH TO ASK THAT
THE JUDGE MAKE IT THE GROUND OF HIS RULING.  CERTAINLY THE JUDGE DID
NOT PURPORT TO FINE AND IMPRISON FISHER FOR THE MANNER OF MAKING THE
OBJECTION, FOR THE TONE OF HIS VOICE, OR FOR HIS FACIAL EXPRESSION. 
THE DISPUTE WAS MERELY OVER THE BOUNDS OF PERMISSIBLE COMMENT BEFORE A
JURY.  FISHER HAVING BEEN STOPPED AT ONE POINT TRIED ANOTHER STRATEGY. 
HE WAS ACTING THE ROLE OF A RESOURCEFUL LAWYER.  THE DECISION WHICH
PENALIZES HIM FOR THAT ZEAL SANCTIONS CENSORSHIP INSIDE A COURTHOUSE
WHERE THE IDEALS OF FREEDOM OF SPEECH SHOULD FLOURISH. 

THERE IS FOR ME ONLY ONE FAIR INFERENCE FROM THE RECORD - THAT THE
JUDGE PICKED A QUARREL WITH THIS LAWYER AND USED HIS HIGH POSITION TO
WREAK VENGEANCE ON HIM.  IT IS SHOWN, I THINK, BY THE COMMENCEMENT OF
THE CRITICAL COLLOQUY: 

"BY THE COURT:  I WILL DECLARE A MISTRIAL IF YOU MESS WITH ME TWO
MINUTES AND A HALF, AND FINE YOU BESIDES. 

"BY MR. FISHER:  THAT IS ALL RIGHT.  WE TAKE EXCEPTION TO THE CONDUCT
OF THE COURT. 

"BY THE COURT:  THAT IS ALL RIGHT; I WILL FINE YOU $25.00." 

THIS LAWYER WAS THE VICTIM OF THE PIQUE AND HOT-HEADEDNESS OF A
JUDICIAL OFFICER WHO IS SUPPOSED TO HAVE A SERENITY THAT KEEPS HIM
ABOVE THE BATTLE AND THE CROWD.  THAT IS AS MUCH A PERVERSION OF THE
JUDICIAL FUNCTION AS IF THE JUDGE WHO SAT HAD A PECUNIARY INTEREST IN
THE OUTCOME OF THE LITIGATION.  TUMEY V. OHIO, 273 U.S. 510. 

MR. JUSTICE MURPHY, DISSENTING. 

PETITIONER TOLD THE JURY THREE TIMES, WITHOUT OBJECTION, THAT HIS
CLIENT WAS ENTITLED TO COMPENSATION FOR ONE HUNDRED AND TWENTY-FIVE
WEEKS.  HE THEN BEGAN DISCUSSION OF THE "AVERAGE WEEKLY COMPENSATION,"
AND THE COURT TOLD HIM THAT THE JURY WAS "NOT INTERESTED IN DOLLARS AND
CENTS."  TO THIS RULING HE EXCEPTED, BELIEVING THAT THE AMOUNT OF
POSSIBLE RECOVERY SHOULD BE CONSIDERED BY THE JURY.  HE THEN REPEATED
WHAT HE HAD SAID THREE TIMES BEFORE, WITHOUT OBJECTION, ON A DIFFERENT
SUBJECT, AND WAS TOLD THAT HE SHOULD NOT "MESS WITH" THE COURT.  QUITE
NATURALLY, HE OBJECTED TO THE COURT'S CONDUCT; TEXAS DECISIONS MAKE IT
CLEAR THAT REMARKS "CALCULATED TO REFLECT UPON THE COUNSEL AND
PREJUDICE HIS CLIENT'S CASE WITH THE JURY  ...  CONSTITUTE REVERSIBLE
ERROR."  DALLAS CONSOL.  ELECTRIC ST. R. CO. V. MCALLISTER, 41 TEX.
CIV. APP. 131, 137, 90 S.W. 933.  BUT PETITIONER WAS HELD IN CONTEMPT. 
AND AS HE OBJECTED, HIS PENALTY WAS SUCCESSIVELY RAISED.  FINALLY THE
COURT TOLD THE SHERIFF:  "DON'T LET HIM STAND THERE.  TAKE HIM OUT." 

A TRIAL JUDGE MUST BE GIVEN WIDE LATITUDE IN PUNISHING INTERFERENCE
WITH THE ORDERLY ADMINISTRATION OF JUSTICE.  SEE EX PARTE TERRY, 128
U.S. 289; COOKE V. UNITED STATES, 267 U.S. 517.  BUT THE SUMMARY NATURE
OF CONTEMPT PROCEEDINGS, THE RISK OF IMPRISONMENT WITHOUT JURY, TRIAL,
OR FULL HEARING, MAKE THIS THE MOST DRASTIC WEAPON ENTRUSTED TO THE
TRIAL JUDGE.  TO SANCTION THE PROCEDURE WHEN IT IS PATENT THAT THERE
HAS BEEN NO SUBSTANTIAL INTERFERENCE WITH THE TRIAL, WHEN A JUDGE HAS
USED HIS POSITION AND POWER TO SUCCESSIVELY INCREASE THE PENALTY FOR
SIMPLE OBJECTIONS, IS, I BELIEVE, A DENIAL OF DUE PROCESS OF LAW.  THE
CONTEMPT POWER IS AN EXTRAORDINARY REMEDY, AN EXCEPTION TO OUR
TRADITION OF FAIR AND COMPLETE HEARINGS.  ITS USE SHOULD BE CAREFULLY
RESTRICTED TO CASES OF ACTUAL OBSTRUCTION.  IN MY OPINION, THIS RECORD
OF PETTY DISAGREEMENT DOES NOT APPROACH THAT SERIOUS INTERFERENCE WITH
THE JUDICIAL PROCESS WHICH JUSTIFIES USE OF THE CONTEMPT WEAPON. 
WHATEVER THE SITUATIONS MAKING THIS WEAPON NECESSARY, IT IS PLAIN TO ME
THAT THIS IS NOT ONE OF THEM. 

AN APPELLATE COURT CAN RARELY CORRECT ABUSE SUCH AS THIS.  "IF THE
JUDGE INTENDS TO BE UNFAIR, THE TRIAL WILL BE A FARCE NO MATTER HOW
MANY DETAILED RULES WE PROVIDE FOR HIM."  MCELROY, SOME OBSERVATIONS
CONCERNING THE DISCRETIONS REPOSED IN TRIAL JUDGES BY THE AMERICAN LAW
INSTITUTE'S CODE OF EVIDENCE, MODEL CODE OF EVIDENCE, PP. 356, 358.  A
PRINTED RECORD CANNOT REVEAL INFLECTIONS AND GESTURES, THE TENOR OF A
JUDGE'S CONDUCT OF A TRIAL - MATTERS WHICH MAKE HIS POSITION THE MOST
RESPONSIBLE IN THE DAILY ADMINISTRATION OF A FAIR JUDICIAL SYSTEM.  SEE
RHEINSTEIN, WHO WATCHES THE WATCHMEN?  IN INTERPRETATIONS OF MODERN
LEGAL PHILOSOPHIES (NEW YORK, 1947), P. 589.  IN RECENT YEARS WE HAVE
SEEN A PRONOUNCED TENDENCY TO LEAVE MANY MATTERS IN THE DISCRETION OF
THE TRIAL JUDGE.  MCELROY, SUPRA; YANKWICH, INCREASING JUDICIAL
DISCRETION IN CRIMINAL PROCEEDINGS, 1 F.R.D. 746.  THE MOVEMENT, WHICH
RESTS ON THE ASSUMPTION THAT THE JUDGE IS WISE AND IMPARTIAL, SHOULD
MAKE US QUICK TO UPSET HIS DETERMINATIONS IN THE FEW CASES WHICH
CLEARLY DEMONSTRATE LIGHT REGARD FOR THE PRINCIPLES THAT SHOULD GUIDE A
RESPONSIBLE JURIST. 

I WOULD REVERSE THE JUDGMENT. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

WITHOUT RECOUNTING FURTHER THAN IS DONE IN OTHER OPINIONS THE FACTS
OF THIS UNFORTUNATE EPISODE, I HAVE CONCLUDED THAT THE RECORD HERE
DISCLOSES ANSWERS OR REMARKS MADE BY PETITIONER TO THE COURT WHICH, IN
SOME INSTANCES, MAY WELL HAVE JUSTIFIED PUNISHMENT FOR CONTEMPT, BUT
FOR ONE CIRCUMSTANCE.  THAT IS, I REGRET TO SAY, THE CONCLUSION TO
WHICH I HAVE BEEN FORCED FROM THE RECORD AS A WHOLE THAT IN THE COURSE
OF THE COLLOQUY AND ESPECIALLY IN THE RAPID SUCCESSION OF FINES,
COMMITMENT TO JAIL, AND ORDER FOR REMOVAL FROM THE COURTROOM, AS WELL
AS IN THE UNJUDICIAL LANGUAGE EMPLOYED BY THE JUDGE, THE TRIAL COURT
ACTED IN THE HEAT OF TEMPER AND NOT WITH THAT CALM CONTROL WHICH THE
FAIR ADMINISTRATION OF JUDICIAL OFFICE COMMANDS UNDER ALL
CIRCUMSTANCES. 

LAWYERS OWE A LARGE, BUT NOT AN OBSEQUIOUS, DUTY OF RESPECT TO THE
COURT IN ITS PRESENCE.  BUT THEIR BREACH OF THIS OBLIGATION IN NO CASE
JUSTIFIES CORRECTION BY AN ACT OR ACTS FROM THE BENCH INTEMPERATE IN
CHARACTER, OVERRIDING JUDGMENT.  SINCE THE CASE COMES HERE UPON THE
SEQUENCE OF EVENTS TAKEN AS AN ENTIRETY, I DO NOT UNDERTAKE TO SEPARATE
ONE PORTION OF THE JUDGMENT FROM ANOTHER.  ACCORDINGLY, AS THE CASE
STANDS HERE, I MUST TAKE THE ENTIRE SENTENCE AS INFECTED WITH THE FAULT
I HAVE NOTED.  IT FOLLOWS, IN MY VIEW, THAT THE JUDGMENT SHOULD BE
REVERSED.  WHATEVER THE PROVOCATION, THERE CAN BE NO DUE PROCESS IN
TRIAL IN THE ABSENCE OF CALM JUDGMENT AND ACTION, UNTINGED WITH ANGER,
FROM THE BENCH. 
..END :


















OTT V. MISSISSIPPI BARGE LINE, 336 U.S. 169 


NO. 244.  ARGUED JANUARY 5, 1949.  - DECIDED FEBRUARY 7, 1949.  - 166
F.2D 509, REVERSED. 


1.  A STATE AND A CITY LEVIED AD VALOREM TAXES ON FOREIGN CORPORATIONS
OPERATING BARGE LINES IN INTERSTATE COMMERCE ON INLAND WATERS.  THE
ASSESSMENTS WERE BASED ON THE RATIO BETWEEN THE NUMBER OF MILES OF LINE
WITHIN THE STATE AND THE TOTAL NUMBER OF MILES OF THE ENTIRE LINE.  THE
VESSELS ENGAGED IN THE SERVICE WERE ENROLLED AT PORTS OUTSIDE OF THE
STATE AND WERE ONLY WITHIN THE STATE FOR SUCH TIME AS WAS REQUIRED TO
LOAD AND UNLOAD CARGO AND TO MAKE NECESSARY REPAIRS.  HELD:  THE TAXES
DID NOT VIOLATE EITHER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT OR THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 170
175. 

2.  THE RULE OF TAX APPORTIONMENT FOR ROLLING STOCK OF RAILROADS IN
INTERSTATE COMMERCE, FORMULATED IN PULLMAN'S CAR CO. V. PENNSYLVANIA,
141 U.S. 18, IS APPLICABLE HERE.  PP. 172-174. 

3.  SO FAR AS DUE PROCESS IS CONCERNED, THE ONLY QUESTION IS WHETHER
THE TAX IN PRACTICAL OPERATION HAS RELATION TO OPPORTUNITIES, BENEFITS,
OR PROTECTION CONFERRED OR AFFORDED BY THE TAXING STATE; AND THOSE
REQUIREMENTS ARE SATISFIED IF THE TAX IS FAIRLY APPORTIONED TO THE
COMMERCE CARRIED ON WITHIN THE STATE.  P. 174. 

4.  CLAIMS OF ERRORS IN THE AMOUNT OF THE ASSESSMENT NEED NOT HERE BE
RESOLVED IN THE ABSENCE OF ANY SUGGESTION THAT THE STATE AFFORDS NO
ADMINISTRATIVE OR JUDICIAL REMEDY TO CORRECT THEM.  P. 175. 

OTT, COMMISSIONER OF PUBLIC FINANCE, ET AL. V. MISSISSIPPI VALLEY
BARGE LINE CO. ET AL. 

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

APPELLEES INSTITUTED SUITS IN THE DISTRICT COURT, BASED ON DIVERSITY
OF CITIZENSHIP, TO RECOVER ALLEGEDLY UNCONSTITUTIONAL STATE TAXES WHICH
THEY HAD PAID UNDER PROTEST.  THE DISTRICT COURT GAVE JUDGMENT FOR
APPELLEES.  68 F.SUPP.  30.  THE COURT OF APPEALS AFFIRMED.  166 F.2D
509.  ON APPEAL TO THIS COURT, REVERSED, P. 175. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLEES ARE FOREIGN CORPORATIONS WHICH TRANSPORT FREIGHT IN
INTERSTATE COMMERCE UP AND DOWN THE MISSISSIPPI AND OHIO RIVERS UNDER
CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE
INTERSTATE COMMERCE COMMISSION.  EACH HAS AN OFFICE OR AGENT IN
LOUISIANA BUT ITS PRINCIPAL PLACE OF BUSINESS IS ELSEWHERE.  THE BARGES
AND TOWBOATS WHICH THEY USE IN THIS COMMERCE ARE ENROLLED AT PORTS
OUTSIDE LOUISIANA; BUT THEY ARE NOT TAXED BY THE STATES OF
INCORPORATION. 

IN THE TRIPS TO LOUISIANA A TUGBOAT BRINGS A LINE OF BARGES TO NEW
ORLEANS WHERE THE BARGES ARE LEFT FOR UNLOADING AND RELOADING.  THEN
THE TUGBOAT PICKS UP LOADED BARGES FOR RETURN TRIPS TO PORTS OUTSIDE
THAT STATE.  THERE IS NO FIXED SCHEDULE FOR MOVEMENT OF THE BARGES. 
BUT THE TURN-AROUNDS ARE ACCOMPLISHED AS QUICKLY AS POSSIBLE WITH THE
RESULT THAT THE VESSELS ARE WITHIN LOUISIANA FOR SUCH COMPARATIVELY
SHORT PERIODS OF TIME AS ARE REQUIRED TO DISCHARGE AND TAKE ON CARGO
AND TO MAKE NECESSARY AND TEMPORARY REPAIRS.  FN1 

LOUISIANA AND THE CITY OF NEW ORLEANS LEVIED AD VALOREM TAXES UNDER
ASSESSMENTS BASED ON THE RATIO BETWEEN THE TOTAL NUMBER OF MILES OF
APPELLEES' LINES IN LOUISIANA AND THE TOTAL NUMBER OF MILES OF THE
ENTIRE LINE.  FN2  THE TAXES WERE PAID UNDER PROTEST AND VARIOUS SUITS,
WHICH HAVE BEEN CONSOLIDATED, WERE INSTITUTED IN THE DISTRICT COURT BY
REASON OF DIVERSITY OF CITIZENSHIP FOR THEIR RETURN, THE CONTENTION
BEING THAT THE TAXES VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT AND THE COMMERCE CLAUSE.  THE DISTRICT COURT GAVE JUDGMENT
FOR THE APPELLEES, HOLDING THAT THE TAXES VIOLATED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE THE VESSELS HAD ACQUIRED NO
TAX SITUS IN LOUISIANA.  68 F.SUPP.  30.  THE COURT OF APPEALS
AFFIRMED.  166 F.2D 509.  CERTIORARI HAVING BEEN DENIED, 334 U.S. 859,
THE CASE WAS BROUGHT HERE BY APPEAL.  JUDICIAL CODE SEC. 240, 28 U.S.C.
SEC. 347(B), NOW 28 U.S.C. SEC. 1254. 

IT IS ARGUED THAT THE RULE OF TAX APPORTIONMENT FOR ROLLING STOCK OF
RAILROADS IN INTERSTATE COMMERCE WHICH WAS INTRODUCED BY PULLMAN'S CAR
CO. V. PENNSYLVANIA, 141 U.S. 18, SHOULD BE APPLIED HERE.  IN THAT CASE
A NONDOMICILIARY STATE WAS ALLOWED TO TAX AN INTERSTATE RAIL CARRIER BY
TAKING AS THE BASIS OF ASSESSMENT SUCH PROPORTION OF ITS CAPITAL STOCK
AS THE NUMBER OF MILES OF RAILROAD OVER WHICH ITS CARS RAN WITHIN THE
STATE BORE TO THE TOTAL NUMBER OF MILES IN ALL THE STATES.  FN3 THE
COURT OF APPEALS THOUGHT THAT CASE AND ITS OFFSPRING INAPPLICABLE
BECAUSE OF OUR DECISIONS IN HAYS V. PACIFIC MAIL S.S. CO., 17 HOW. 
596; ST. LOUIS V. FERRY CO., 11 WALL.  423; MORGAN V. PARHAM, 16 WALL. 
471; AYER & LORD TIE CO. V. KENTUCKY, 202 U.S. 409; AND SOUTHERN
PACIFIC CO. V. KENTUCKY, 222 U.S. 63.  SOME OF THESE CASES INVOLVED
VESSELS WHICH MOVED ON THE HIGH SEAS.  HAYS V. PACIFIC MAIL S.S. CO.,
SUPRA; MORGAN V. PARHAM, SUPRA; SOUTHERN PACIFIC CO. V. KENTUCKY,
SUPRA.  OTHERS INVOLVED VESSELS MOVING IN OUR INLAND WATERS, ST. LOUIS
V. FERRY CO., SUPRA; AYER & LORD TIE CO. V. KENTUCKY, SUPRA.  IN EACH
SITUATION THE COURT EVOLVED THE RULE THAT THE VESSELS WERE TAXABLE
SOLELY AT THE DOMICILE OF THE OWNER, SAVE WHERE THEY HAD ACQUIRED AN
ACTUAL SITUS ELSEWHERE AS THEY DID WHEN THEY OPERATED WHOLLY ON WATERS
WITHIN ONE STATE.  OLD DOMINION S.S. CO. V. VIRGINIA, 198 U.S. 299.  SO
FAR AS SHIPS OF AMERICAN OWNERSHIP AND REGISTRY SAILING THE HIGH SEAS
ARE CONCERNED, IT WAS THOUGHT THAT IF THEY WERE NOT TAXABLE AT THE
DOMICILE THEY MIGHT NOT BE TAXABLE AT ALL.  SEE SOUTHERN PACIFIC CO. V.
KENTUCKY, SUPRA, AT 75.  BUT IN NEITHER SITUATION WAS THE ELEMENT OF
APPORTIONMENT INVOLVED OR CONSIDERED. 

WE DO NOT REACH THE QUESTION OF TAXABILITY OF OCEAN CARRIAGE BUT
CONFINE OUR DECISION TO TRANSPORTATION ON INLAND WATERS.  WE SEE NO
PRACTICAL DIFFERENCE SO FAR AS EITHER THE DUE PROCESS CLAUSE OR THE
COMMERCE CLAUSE IS CONCERNED WHETHER IT IS VESSELS OR RAILROAD CARS
THAT ARE MOVING IN INTERSTATE COMMERCE.  THE PROBLEM UNDER THE COMMERCE
CLAUSE IS TO DETERMINE "WHAT PORTION OF AN INTERSTATE ORGANISM MAY
APPROPRIATELY BE ATTRIBUTED TO EACH OF THE VARIOUS STATES IN WHICH IT
FUNCTIONS."  NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362,
365.  SO FAR AS DUE PROCESS IS CONCERNED THE ONLY QUESTION IS WHETHER
THE TAX IN PRACTICAL OPERATION HAS RELATION TO OPPORTUNITIES, BENEFITS,
OR PROTECTION CONFERRED OR AFFORDED BY THE TAXING STATE.  SEE WISCONSIN
V. J.C. PENNEY CO., 311 U.S. 435, 444.  THOSE REQUIREMENTS ARE
SATISFIED IF THE TAX IS FAIRLY APPORTIONED TO THE COMMERCE CARRIED ON
WITHIN THE STATE. 

THERE IS SUCH AN APPORTIONMENT UNDER THE FORMULA OF THE PULLMAN
CASE.  MOREOVER, THAT TAX, LIKE TAXES ON PROPERTY, TAXES ON ACTIVITIES
CONFINED SOLELY TO THE TAXING STATE,  FN4  OR TAXES ON GROSS RECEIPTS
APPORTIONED TO THE BUSINESS CARRIED ON THERE,  FN5  HAS NO CUMULATIVE
EFFECT CAUSED BY THE INTERSTATE CHARACTER OF THE BUSINESS.  HENCE THERE
IS NO RISK OF MULTIPLE TAXATION.  FINALLY, THERE IS NO CLAIM IN THIS
CASE THAT LOUISIANA'S TAX DISCRIMINATES AGAINST INTERSTATE COMMERCE. 
IT SEEMS THEREFORE TO SQUARE WITH OUR DECISIONS HOLDING THAT INTERSTATE
COMMERCE CAN BE MADE TO PAY ITS WAY BY BEARING A NONDISCRIMINATORY
SHARE OF THE TAX BURDEN WHICH EACH STATE MAY IMPOSE ON THE ACTIVITIES
OR PROPERTY WITHIN ITS BORDERS.  SEE WESTERN LIVE STOCK V. BUREAU, 303
U.S. 250, 254-255, AND CASES CITED.  WE CAN SEE NO REASON WHICH SHOULD
PUT WATER TRANSPORTATION ON A DIFFERENT CONSTITUTIONAL FOOTING THAN
OTHER INTERSTATE ENTERPRISES. 

IT IS ARGUED THAT THE DOCTRINE OF THE PULLMAN CASE IS INAPPLICABLE
HERE BECAUSE ITS BASIS IS THE CONTINUOUS PROTECTION AFFORDED BY THE
TAXING STATE THROUGHOUT THE TAX YEAR TO A PORTION OF THE COMMERCE.  SEE
141 U.S. AT 26; UNION TRANSIT CO. V. KENTUCKY, 199 U.S. 194, 206; NEW
YORK CENTRAL R. CO. V. MILLER, 202 U.S. 584, 597-598; NORTHWEST
AIRLINES V. MINNESOTA, 322 U.S. 292, 297.  IT IS SAID IN THIS CASE THAT
THE VISITS OF THE VESSELS TO LOUISIANA WERE SPORADIC AND FOR FRACTIONAL
PERIODS OF THE YEAR ONLY AND THAT THERE WAS NO AVERAGE NUMBER OF
VESSELS IN THE STATE EVERY DAY.  THE DISTRICT COURT INDEED SAID THAT
THERE WAS NO SHOWING THAT THE PARTICULAR PORTION OF THE PROPERTY SOUGHT
TO BE TAXED WAS REGULARLY AND HABITUALLY USED AND EMPLOYED IN LOUISIANA
FOR THE WHOLE OF THE TAXABLE YEAR. 

WE DO NOT STOP TO RESOLVE THE QUESTION.  LOUISIANA'S ATTORNEY GENERAL
STATES IN HIS BRIEF THAT THE STATUTE "WAS INTENDED TO COVER AND
ACTUALLY COVERS HERE, AN AVERAGE PORTION OF PROPERTY PERMANENTLY WITHIN
THE STATE - AND BY PERMANENTLY IS MEANT THROUGHOUT THE TAXING YEAR." 
APPELLEES DO NOT SUGGEST AN ABSENCE OF ANY ADMINISTRATIVE OR JUDICIAL
REMEDY IN LOUISIANA TO CORRECT ERRORS IN THE ASSESSMENT.  CF.
HILLSBOROUGH V. CROMWELL, 326 U.S. 620.  THE DISTRICT COURT DOES NOT
SIT TO POLICE THEM.  SEE GREAT LAKES CO. V. HUFFMAN, 319 U.S. 293;
ARKANSAS COMMISSION V. THOMPSON, 313 U.S. 132; GARDNER V. NEW JERSEY,
329 U.S. 565, 578-579.  REVERSED. 

FN1  THE DISTRICT COURT FOUND THAT OF THE TOTAL TIME COVERED BY
APPELLEES' INTERSTATE COMMERCE OPERATIONS IN 1943, THE AMOUNT SPENT BY
THEIR VESSELS IN LOUISIANA OR IN NEW ORLEANS WAS APPROXIMATELY AS
FOLLOWS:

                              PER CENT 

AMERICAN'S TUGBOATS                            3.8 

MISSISSIPPI VALLEY'S TUGBOATS                17.25 

MISSISSIPPI VALLEY'S BARGES              12.7 

SIMILAR FINDINGS FOR 1944 WERE: 

MISSISSIPPI VALLEY'S TUGBOATS                 10.2 

MISSISSIPPI VALLEY'S BARGES                   17.5 

UNION'S TUGBOATS                           2.2 

UNION'S BARGES                   4.3 

FN2  THE STATUTE, 6 DART'S LA. GEN. STAT. SEC. 8370, PROVIDES IN PART
AS FOLLOWS: 

"(A)  ...  ALL MOVABLE AND REGULARLY MOVED LOCOMOTIVES, CARS,
VEHICLES, CRAFT, BARGES, BOATS AND SIMILAR THINGS, WHICH HAVE NOT THE
CHARACTER OF IMMOVABLES BY THEIR NATURE OR BY THE DISPOSITION OF LAW,
EITHER OWNED OR LEASED FOR A DEFINITE AND SPECIFIC TERM STATED AND
OPERATED (SUCH, ILLUSTRATIVELY BUT NOT EXCLUSIVELY, AS THE ENGINES,
CARS AND ALL ROLLING STOCKS OF RAILROADS; THE BOATS, BARGES AND OTHER
WATER-CRAFT AND FLOATING EQUIPMENT OF WATER TRANSPORTATION LINES); ... 

     .         .         .  .         . 

"(F).  THE 'MOVABLE PERSONAL PROPERTY' OF SUCH PERSONS, FIRMS, OR
CORPORATIONS, WHOSE LINE, ROUTE, OR SYSTEM IS PARTLY WITHIN THIS STATE
AND PARTLY WITHIN ANOTHER STATE OR STATES, SHALL BE BY THE COMMISSION
VALUED FOR THE PURPOSES OF TAXATION AND BY IT ASSESSED; AND SUCH
ASSESSMENT BY IT FAIRLY DIVIDED, ALLOCATED AND CERTIFIED TO EACH SUCH
PARISH AND MUNICIPALITY AS HEREIN DEFINED, WITHIN THIS STATE, WITHIN,
THROUGH OR UNDER WHICH SAME BE OPERATED; SAID DIVISION, ALLOCATION AND
CERTIFICATION TO BE DETERMINED IN THE FOLLOWING MANNER AND ACCORDING TO
THE FOLLOWING METHOD; SUCH ASSESSMENT TO BE THERE SUBJECT TO ALL STATE
TAXES AND TO ALL PARISH TAXES AND TO ALL MUNICIPAL TAXES, AS SAME ARE
HEREIN DEFINED AND TO NONE OTHER. 

"1. THE PORTION OF ALL OF SUCH PROPERTY, OF SUCH PERSON, FIRM OR
CORPORATION SHALL BE ASSESSED IN THE STATE OF LOUISIANA, WHERESOEVER,
IN THE RATIO WHICH THE NUMBER OF MILES OF THE LINE, WITHIN THE STATE
BEARS TO THE TOTAL NUMBER OF MILES OF THE ENTIRE LINE, ROUTE OR SYSTEM,
HERE AND ELSEWHERE, OVER WHICH SUCH MOVABLE PERSONAL PROPERTY IS SO
OPERATED OR SO USED BY SUCH PERSON, FIRM OR CORPORATION. 

     .         .         .         .        . 

"(G).  FOR THE PURPOSES OF SUCH VALUATION, ASSESSMENT AND TAXATION IN
LOUISIANA SUCH PARISHES AND MUNICIPALITIES SHALL BE HEREBY FIXED AND
DECLARED, RESPECTIVELY, TO BE A TAXABLE SITUS IN THIS STATE OF SUCH
MOVABLE PERSONAL PROPERTY, WHETHER SAME BE OPERATED ENTIRELY WITHIN OR
PARTLY WITHIN AND PARTLY WITHOUT THIS STATE AND WHETHER SAID TAXPAYER
BE A RESIDENT OR A NONRESIDENT OF LOUISIANA AND IRRESPECTIVE OF WHETHER
OR NOT HERE DOMICILED LOCALLY OR OTHERWISE." 

FN3  AND SEE PITTSBURGH, C., C. & ST. L.R. CO. V. BACKUS, 154 U.S.
421; ADAMS EXPRESS CO. V. OHIO, 165 U.S. 194, 166 U.S. 185; AMERICAN
EXPRESS CO. V. INDIANA, 165 U.S. 255; ADAMS EXPRESS CO. V. KENTUCKY,
166 U.S. 171; UNION TRANSIT CO. V. KENTUCKY, 199 U.S. 194; NEW YORK
CENTRAL R. CO. V. MILLER, 202 U.S. 584; WELLS, FARGO & CO. V. NEVADA,
248 U.S. 165; ST. LOUIS & E. ST. L.R. CO. V. HAGERMAN, 256 U.S. 314;
SOUTHERN R. CO. V. WATTS, 260 U.S. 519; ROWLEY V. CHICAGO & N.W.R. CO.,
293 U.S. 102; NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362. 

FN4  NEW YORK, L.E. & W.R. CO. V. PENNSYLVANIA, 158 U.S. 431; UTAH
POWER & L. CO. V. PFOST, 286 U.S. 165; COVERDALE V. ARKANSAS-LOUISIANA
PIPE L. CO., 303 U.S. 604. 

FN5  MAINE V. GRAND TRUNK R. CO., 142 U.S. 217; WISCONSIN & M.R. CO.
V. POWERS, 191 U.S. 379; UNITED STATES EXPRESS CO. V. MINNESOTA, 223
U.S. 335; CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450; ILLINOIS
CENTRAL R. CO. V. MINNESOTA, 309 U.S. 157. 

MR. JUSTICE JACKSON DISSENTS. 
..END :








WILKERSON V. MCCARTHY, 336 U.S. 53 


NO. 53.  ARGUED DECEMBER 6, 1948.  - DECIDED JANUARY 31, 1949.  - UTAH -
, 187 P.2D 188, REVERSED. 


1.  IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THERE
WAS EVIDENCE (DETAILED IN THE OPINION) WHICH WOULD SUPPORT A JURY
FINDING OF NEGLIGENCE ON THE PART OF THE DEFENDANTS, AND IT WAS ERROR
FOR THE TRIAL COURT TO DIRECT A VERDICT AGAINST THE PLAINTIFF.  PP. 54
61, 63-64. 

2.  IN DETERMINING WHETHER THERE IS SUFFICIENT EVIDENCE TO SUBMIT AN
ISSUE OF NEGLIGENCE TO THE JURY, IT IS NECESSARY TO LOOK ONLY TO THE
EVIDENCE AND REASONABLE INFERENCES THEREFROM WHICH TEND TO SUPPORT THE
CASE OF THE LITIGANT AGAINST WHOM A PEREMPTORY INSTRUCTION HAS BEEN
GIVEN.  P. 57. 

3.  UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, CONTRIBUTORY
NEGLIGENCE OF THE PLAINTIFF DOES NOT BAR RECOVERY FOR AN INJURY WHICH
WAS "IN PART" THE RESULT OF THE DEFENDANT'S NEGLIGENCE, BUT THE DAMAGES
IN SUCH CASE "SHALL BE DIMINISHED BY THE JURY IN PROPORTION TO THE
AMOUNT OF NEGLIGENCE ATTRIBUTABLE" TO THE PLAINTIFF.  P. 61. 

4.  THE FEDERAL EMPLOYERS' LIABILITY ACT DOES NOT MAKE THE RAILROAD
AN ABSOLUTE INSURER OF THE SAFETY OF ITS EMPLOYEES, BUT IMPOSES
LIABILITY ONLY FOR NEGLIGENCE.  P. 61. 

5.  THE ISSUE OF NEGLIGENCE UNDER THE ACT IS TO BE DETERMINED BY THE
JURY ACCORDING TO WHETHER AN EMPLOYER'S CONDUCT MEASURES UP TO WHAT A
REASONABLE AND PRUDENT PERSON WOULD HAVE DONE UNDER THE SAME
CIRCUMSTANCES.  P. 61. 

6.  THE EMPLOYER IS LIABLE FOR INJURIES ATTRIBUTABLE TO CONDITIONS
UNDER HIS CONTROL WHEN THEY ARE NOT SUCH AS A REASONABLE MAN OUGHT TO
MAINTAIN IN THE CIRCUMSTANCES, HAVING IN MIND THAT THE STANDARD OF CARE
MUST BE COMMENSURATE TO THE DANGERS OF THE BUSINESS.  P. 61. 

7.  THE ASSUMPTION THAT, WHERE THE ISSUE OF NEGLIGENCE UNDER THE ACT
IS LEFT TO THE JURY, RAILROADS PRACTICALLY ARE MADE INSURERS OF THE
SAFETY OF THEIR EMPLOYEES, IS INADMISSIBLE, SINCE COURTS SHOULD NOT
ASSUME THAT, IN DETERMINING THESE QUESTIONS OF NEGLIGENCE, JURIES WILL
FALL SHORT OF A FAIR PERFORMANCE OF THEIR CONSTITUTIONAL FUNCTION.  PP.
61-63. 

WILKERSON V. MCCARTHY ET AL., TRUSTEES. 

CERTIORARI TO THE SUPREME COURT OF UTAH. 

IN AN ACTION BROUGHT BY PETITIONER UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, TO RECOVER DAMAGES FOR PERSONAL INJURIES, THE TRIAL
COURT DIRECTED A VERDICT FOR THE DEFENDANTS.  THE STATE SUPREME COURT
AFFIRMED.   - UTAH - , 187 P.2D 188.  THIS COURT GRANTED CERTIORARI. 
335 U.S. 807.  REVERSED, P. 64. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, A RAILROAD SWITCHMAN, WAS INJURED WHILE PERFORMING
DUTIES AS AN EMPLOYEE OF RESPONDENTS IN THEIR RAILROAD COACH YARD AT
DENVER, COLORADO.  HE BROUGHT THIS ACTION FOR DAMAGES UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  FN1 

THE COMPLAINT ALLEGED THAT IN THE PERFORMANCE OF HIS DUTIES IN THE
RAILROAD YARD IT BECAME NECESSARY FOR HIM TO WALK OVER A WHEEL-PIT ON A
NARROW BOARDWAY, AND THAT DUE TO NEGLIGENCE OF RESPONDENTS, PETITIONER
FELL INTO THE PIT AND SUFFERED GRIEVOUS PERSONAL INJURIES.  THE
COMPLAINT FURTHER ALLEGED THAT RESPONDENTS HAD FAILED TO FURNISH HIM A
SAFE PLACE TO WORK IN SEVERAL DETAILED PARTICULARS, NAMELY, THAT THE
PIT BOARDWAY (1) WAS NOT FIRMLY SET, (2) WAS NOT SECURELY ATTACHED, AND
(3) ALTHOUGH ONLY ABOUT 20 INCHES WIDE, THE BOARDWAY HAD BEEN PERMITTED
TO BECOME GREASY, OILY, AND SLIPPERY, THEREBY CAUSING PETITIONER TO
LOSE HIS BALANCE, SLIP, AND FALL INTO THE PIT. 

THE RESPONDENTS IN THEIR ANSWER TO THIS COMPLAINT ADMITTED THE
EXISTENCE OF THE PIT AND PETITIONER'S INJURIES AS A RESULT OF FALLING
INTO IT.  THEY DENIED, HOWEVER, THAT THE INJURY RESULTED FROM THE
RAILROAD'S NEGLIGENCE, CHARGING THAT PLAINTIFF'S OWN NEGLIGENCE WAS THE
SOLE PROXIMATE CAUSE OF HIS INJURIES.  ON MOTION OF THE RAILROAD THE
TRIAL JUDGE DIRECTED THE JURY TO RETURN A VERDICT IN ITS FAVOR.  THE
SUPREME COURT OF UTAH AFFIRMED, ONE JUDGE DISSENTING.   - UTAH - , 187
P.2D 188. 

THE OPINION OF THE UTAH SUPREME COURT STRONGLY INDICATED, AS THE
DISSENTING JUDGE POINTED OUT, THAT ITS FINDING OF AN ABSENCE OF
NEGLIGENCE ON THE PART OF THE RAILROAD RESTED ON THAT COURT'S
INDEPENDENT RESOLUTION OF CONFLICTING TESTIMONY.  THIS COURT HAS
PREVIOUSLY HELD IN MANY CASES THAT WHERE JURY TRIALS ARE REQUIRED,
COURTS MUST SUBMIT THE ISSUES OF NEGLIGENCE TO A JURY IF EVIDENCE MIGHT
JUSTIFY A FINDING EITHER WAY ON THOSE ISSUES.  SEE, E.G., LAVENDER V.
KURN, 327 U.S. 645, 652-653; BAILEY V. CENTRAL VERMONT R. CO., 319 U.S.
350, 354; TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54, 68; AND
SEE BRADY V. SOUTHERN R. CO., 320 U.S. 476, 479.  IT WAS BECAUSE OF THE
IMPORTANCE OF PRESERVING FOR LITIGANTS IN FELA CASES THEIR RIGHT TO A
JURY TRIAL THAT WE GRANTED CERTIORARI IN THIS CASE. 

THE EVIDENCE SHOWED THE FOLLOWING FACTS WITHOUT DISPUTE: 

PETITIONER FELL INTO THE PIT JULY 26, 1945.  THE PIT, CONSTRUCTED IN
1942, RAN APPROXIMATELY 40 FEET EAST AND WEST UNDERNEATH THREE OR MORE
PARALLEL TRACKS WHICH CROSSED THE PIT FROM NORTH TO SOUTH.  THE PIT WAS
11 FEET DEEP AND 4 FEET 2 1/2 INCHES WIDE WITH CEMENT WALLS AND FLOOR. 
CAR WHEELS IN NEED OF REPAIR WERE BROUGHT TO THE PIT, LOWERED INTO IT,
THERE REPAIRED, AND THEN LIFTED FROM THE PIT FOR RETURN TO USE.  WHEN
NOT IN USE THE PIT WAS KEPT SOLIDLY COVERED WITH HEAVY BOARDS.  THESE
BOARDS WERE USED AS A WALKWAY BY ALL EMPLOYEES.  WHEN THE PIT WAS IN
USE THE COVER BOARDS WERE REMOVED EXCEPT ONE 75 POUND "PERMANENT BOARD"
22 INCHES WIDE AND 4 FEET 2 1/2 INCHES LONG.  WHILE THE SOLID COVERING
WAS OFF, THIS "PERMANENT BOARD," BUILT TO FIT SNUGLY AND FIRMLY, WAS
UNQUESTIONABLY USED AS A WALKWAY BY ALL EMPLOYEES UP TO ABOUT MAY 1,
1945. 

ON THIS LATTER DATE, THE RAILROAD PUT UP "SAFETY CHAINS" FASTENED TO
GUARD POSTS, INCLOSING 16 1/2 FEET OF THE PIT, ON ITS NORTH, SOUTH AND
WEST SIDES.  THE POSTS, 42 INCHES HIGH, FITTED INTO TUBES IMBEDDED IN
THE GROUND, THE TUBES BEING LARGER THAN THE POSTS - ENOUGH LARGER TO
ALLOW THE POSTS TO WORK FREELY.  THE CHAINS, ATTACHED 2 INCHES FROM THE
TOP OF THE POSTS, WERE TO BE KEPT UP WHILE THE PIT WAS IN USE AND TAKEN
DOWN WHEN THE PIT WAS NOT IN USE.  THEY WERE UP WHEN PLAINTIFF SLIPPED
FROM THE "PERMANENT BOARD" INTO THE PIT.  AT THAT TIME A TOURIST CAR
WAS STANDING OVER THE PIT ON TRACK "23 1/2."  THIS TRACK "23 1/2" WAS
EAST OF THE TWO EAST CHAIN POSTS, ITS WEST RAIL BEING ABOUT 36 INCHES,
AND THE TOURIST CAR OVERHANG ABOUT 7 INCHES FROM THE TWO EAST CHAIN
SUPPORTING POSTS.  FN2  THE FLOOR OF THE "OVERHANG" WAS ABOUT 51 INCHES
ABOVE THE GROUND, OR 9 INCHES ABOVE THE TOP OF THE POSTS, THUS ALLOWING
AN UNOBSTRUCTED CLEARANCE OF 51 INCHES UNDER THE OVERHANG.  THE
"PERMANENT BOARD" WAS INSIDE THE CHAIN ENCLOSURE, THE BOARD'S EAST SIDE
BEING ABOUT 9 1/2 INCHES FROM THE TWO EASTERN CHAIN POSTS.  DESPITE THE
PROXIMITY OF THE TOURIST CAR TO THE POSTS THERE WAS SUFFICIENT SPACE
EAST OF EACH CHAIN POST SO THAT PIT WORKERS HAD ACCESS TO AND USED THE
BOARD AS A WALKWAY.  ONE OF THE DEFENDANT'S WITNESSES, A VERY LARGE MAN
WEIGHING 250 POUNDS, PASSED THROUGH IT, THOUGH ACCORDING TO HIS
TESTIMONY, WITH "VERY BAD DISCOMFORT."  PETITIONER WAS A MUCH SMALLER
MAN, WEIGHING 145 POUNDS, AND IT WAS BY PASSING BETWEEN ONE OF THESE
POSTS AND THE TOURIST CAR THAT PETITIONER REACHED THE "PERMANENT BOARD"
WHICH BRIDGED THE PIT.  OIL FROM WHEELS WOULD SOMETIMES ACCUMULATE AT
THE BOTTOM OF THE PIT, AND AS STATED BY THE UTAH SUPREME COURT THE
"PERMANENT BOARD" WAS "ALMOST CERTAIN TO BECOME GREASY OR OILY" FROM
USE BY THE PIT-MEN. 

NEITHER BEFORE NOR AFTER THE CHAINS WERE PUT UP HAD THE RAILROAD EVER
FORBIDDEN PIT WORKERS OR ANY OTHER WORKERS TO WALK ACROSS THE PIT ON
THE "PERMANENT BOARD."  NEITHER WRITTEN RULES NOR SPOKEN INSTRUCTIONS
HAD FORBIDDEN ANY EMPLOYEES TO USE THE BOARD.  AND WITNESSES FOR BOTH
SIDES TESTIFIED THAT PIT WORKERS WERE SUPPOSED TO, AND DID, CONTINUE TO
USE THE BOARD AS A WALKWAY AFTER THE CHAINS AND POSTS WERE INSTALLED. 
THE UTAH SUPREME COURT NEVERTHELESS HELD THAT ERECTION OF THE CHAIN AND
POST ENCLOSURE WAS ITSELF THE EQUIVALENT OF COMPANY ORDERS THAT NO
EMPLOYEES OTHER THAN PIT WORKERS SHOULD WALK ACROSS THE PERMANENT BOARD
WHEN THE CHAINS WERE UP.  AND THE UTAH SUPREME COURT ALSO CONCLUDED
THAT THERE WAS INSUFFICIENT EVIDENCE TO AUTHORIZE A JURY FINDING THAT
EMPLOYEES GENERALLY, AS WELL AS PIT WORKERS, HAD CONTINUED THEIR LONG
STANDING AND OPEN PRACTICE OF CROSSING THE PIT ON THE PERMANENT BOARD
BETWEEN THE TIME THE CHAINS WERE PUT UP AND THE TIME PETITIONER WAS
INJURED. 

IT IS THE ESTABLISHED RULE THAT IN PASSING UPON WHETHER THERE IS
SUFFICIENT EVIDENCE TO SUBMIT AN ISSUE TO THE JURY WE NEED LOOK ONLY TO
THE EVIDENCE AND REASONABLE INFERENCES WHICH TEND TO SUPPORT THE CASE
OF A LITIGANT AGAINST WHOM A PEREMPTORY INSTRUCTION HAS BEEN GIVEN. 
VIEWING THE EVIDENCE HERE IN THAT WAY IT WAS SUFFICIENT TO SHOW THE
FOLLOWING: 

SWITCHMEN AND OTHER EMPLOYEES, JUST AS PIT WORKERS, CONTINUED TO USE
THE PERMANENT BOARD TO WALK ACROSS THE PIT AFTER THE CHAINS WERE PUT UP
AS THEY HAD USED IT BEFORE.  PETITIONER  FN3  AND ANOTHER WITNESS N4
EMPLOYED ON WORK AROUND THE PIT, TESTIFIED POSITIVELY THAT SUCH
PRACTICE CONTINUED.  IT IS TRUE THAT WITNESSES FOR THE RESPONDENTS
TESTIFIED THAT AFTER THE CHAINS WERE PUT UP, ONLY THE CAR MEN IN
REMOVING AND APPLYING WHEELS USED THE BOARD "TO WALK FROM ONE SIDE OF
THE PIT TO THE OTHER  ...  "  THUS THE CONFLICT AS TO CONTINUED USE OF
THE BOARD AS A WALKWAY AFTER ERECTION OF THE CHAINS WAS WHETHER THE PIT
WORKERS ALONE CONTINUED TO USE IT AS A WALKWAY, OR WHETHER EMPLOYEES
GENERALLY SO USED IT.  WHILE THIS LEFT ONLY A VERY NARROW CONFLICT IN
THE EVIDENCE, IT WAS FOR THE JURY, NOT THE COURT, TO RESOLVE THE
CONFLICT. 

IT WAS ONLY AS A RESULT OF ITS INAPPROPRIATE RESOLUTION OF THIS
CONFLICTING EVIDENCE THAT THE STATE SUPREME COURT AFFIRMED THE ACTION
OF THE TRIAL COURT IN DIRECTING THE VERDICT.  FOLLOWING ITS
DETERMINATION OF FACT, THE UTAH SUPREME COURT ACTED ON THE ASSUMPTION
THAT THE RESPONDENTS "HAD NO KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT
SWITCHMEN WERE USING THE PLANK TO CARRY OUT THEIR TASKS," AND THE
RAILROAD HAD "NO REASON TO SUSPECT" THAT EMPLOYEES GENERALLY WOULD SO
USE THE WALKWAY.  FROM THIS, THE COURT WENT ON TO SAY THAT RESPONDENTS
"WERE ONLY REQUIRED TO KEEP THE BOARD SAFE FOR THE PURPOSES OF THE PIT
CREWMEN  ...  AND NOT FOR ALL THE EMPLOYEES IN THE YARD."  BUT THE
COURT EMPHASIZED THAT UNDER DIFFERENT FACTS, MAINTENANCE OF "A 22-INCH
BOARD FOR A WALKWAY, WHICH IS ALMOST CERTAIN TO BECOME GREASY OR OILY,
CONSTITUTES NEGLIGENCE."  AND UNDER THE EVIDENCE IN THIS CASE AS TO THE
BOARD, GREASE AND OIL, THE COURT ADDED:  "IT MUST BE CONCEDED THAT IF
DEFENDANTS KNEW OR WERE CHARGED WITH KNOWLEDGE THAT SWITCHMEN AND OTHER
WORKMEN GENERALLY IN THE YARD WERE HABITUALLY USING THE PLANK AS A
WALKWAY IN THE MANNER CLAIMED BY PLAINTIFF, THEN THE SAFETY ENCLOSURE
MIGHT BE ENTIRELY INADEQUATE, AND A JURY QUESTION WOULD HAVE BEEN
PRESENTED ON THE CONDITION OF THE BOARD AND THE ADEQUACY OF THE
ENCLOSURE." 

WE AGREE WITH THIS LAST QUOTED STATEMENT OF THE UTAH COURT, AND SINCE
THERE WAS EVIDENCE TO SUPPORT A JURY FINDING THAT EMPLOYEES GENERALLY
HAD HABITUALLY USED THE BOARD AS A WALKWAY, IT WAS ERROR FOR THE TRIAL
JUDGE TO DIRECT A VERDICT IN FAVOR OF RESPONDENTS. 

THERE WAS, AS THE STATE COURT POINTED OUT, EVIDENCE TO SHOW THAT
PETITIONER COULD HAVE TAKEN A SLIGHTLY LONGER ROUTE AND WALKED AROUND
THE PIT, THUS AVOIDING THE USE OF THE BOARD.  THIS FACT, HOWEVER, UNDER
THE TERMS OF THE FEDERAL EMPLOYERS' LIABILITY ACT, WOULD NOT COMPLETELY
IMMUNIZE THE RESPONDENTS FROM LIABILITY IF THE INJURY WAS "IN PART" THE
RESULT OF RESPONDENTS' NEGLIGENCE.  FOR WHILE PETITIONER'S FAILURE TO
USE A SAFER METHOD OF CROSSING MIGHT BE FOUND BY THE JURY TO BE
CONTRIBUTORY NEGLIGENCE, THE ACT PROVIDES THAT "CONTRIBUTORY NEGLIGENCE
SHALL NOT BAR A RECOVERY, BUT THE DAMAGES SHALL BE DIMINISHED BY THE
JURY IN PROPORTION TO THE AMOUNT OF NEGLIGENCE ATTRIBUTABLE TO SUCH
EMPLOYEE  ...  " 

MUCH OF RESPONDENTS' ARGUMENT HERE IS DEVOTED TO THE PROPOSITION THAT
THE FEDERAL ACT DOES NOT MAKE THE RAILROAD AN ABSOLUTE INSURER AGAINST
PERSONAL INJURY DAMAGES SUFFERED BY ITS EMPLOYEES.  THAT PROPOSITION IS
CORRECT, SINCE THE ACT IMPOSES LIABILITY ONLY FOR NEGLIGENT INJURIES. 
CF. CORAY V. SOUTHERN PAC. CO., 335 U.S. 520.  BUT THE ISSUE OF
NEGLIGENCE IS ONE FOR JURIES TO DETERMINE ACCORDING TO THEIR FINDING OF
WHETHER AN EMPLOYER'S CONDUCT MEASURES UP TO WHAT A REASONABLE AND
PRUDENT PERSON WOULD HAVE DONE UNDER THE SAME CIRCUMSTANCES.  AND A
JURY SHOULD HOLD A MASTER "LIABLE FOR INJURIES ATTRIBUTABLE TO
CONDITIONS UNDER HIS CONTROL WHEN THEY ARE NOT SUCH AS A REASONABLE MAN
OUGHT TO MAINTAIN IN THE CIRCUMSTANCES," BEARING IN MIND THAT "THE
STANDARD OF CARE MUST BE COMMENSURATE TO THE DANGERS OF THE BUSINESS." 
TILLER V. ATLANTIC C.L.R. CO., 318 U.S. 54, 67. 

THERE ARE SOME WHO THINK THAT RECENT DECISIONS OF THIS COURT WHICH
HAVE REQUIRED SUBMISSION OF NEGLIGENCE QUESTIONS TO A JURY MAKE, "FOR
ALL PRACTICAL PURPOSES, A RAILROAD AN INSURER OF ITS EMPLOYEES."  SEE
INDIVIDUAL OPINION OF JUDGE MAJOR, GRISWOLD V. GARDNER, 155 F.2D 333,
334.  BUT SEE JUDGE KERNER'S DISSENT FROM THIS VIEW AT P. 337 AND JUDGE
LINDLEY'S DISSENTING OPINION, PP. 337-338.  THIS ASSUMPTION, THAT
RAILROADS ARE MADE INSURERS WHERE THE ISSUE OF NEGLIGENCE IS LEFT TO
THE JURY, IS INADMISSIBLE.  IT RESTS ON ANOTHER ASSUMPTION, THIS ONE
UNARTICULATED, THAT JURIES WILL INVARIABLY DECIDE NEGLIGENCE QUESTIONS
AGAINST RAILROADS.  THIS IS CONTRARY TO FACT, AS SHOWN FOR ILLUSTRATION
BY OTHER FEDERAL EMPLOYERS' LIABILITY CASES, BARRY V. READING CO., 147
F.2D 129, CERT. DENIED, 324 U.S. 867; BENTON V. ST. LOUIS-SAN FRANCISCO
R. CO., 182 S.W.2D 61, CERT. DENIED, 324 U.S. 843.  AND CF. BRUNER V.
MCCARTHY, 105 UTAH 399, 142 P.2D 649, CERT. DISMISSED FOR REASONS
STATED, 323 U.S. 673.  MOREOVER, THIS COURT STATED SOME SIXTY YEARS AGO
WHEN CONSIDERING THE PROPER TRIBUNAL FOR DETERMINING QUESTIONS OF
NEGLIGENCE:  "WE SEE NO REASON, SO LONG AS THE JURY SYSTEM IS THE LAW
OF THE LAND, AND THE JURY IS MADE THE TRIBUNAL TO DECIDE DISPUTED
QUESTIONS OF FACT, WHY IT SHOULD NOT DECIDE SUCH QUESTIONS AS THESE AS
WELL AS OTHERS."  JONES V. EAST TENNESSEE R. CO., 128 U.S. 443, 445. 
AND PEREMPTORY INSTRUCTIONS SHOULD NOT BE GIVEN IN NEGLIGENCE CASES
"WHERE THE FACTS ARE IN DISPUTE, AND THE EVIDENCE IN RELATION TO THEM
IS THAT FROM WHICH FAIR-MINDED MEN MAY DRAW DIFFERENT INFERENCES." 
WASHINGTON & G.R. CO. V. MCDADE, 135 U.S. 554, 572.  SUCH HAS EVER
SINCE BEEN THE ESTABLISHED RULE FOR TRIAL AND APPELLATE COURTS.  SEE
TILLER V. ATLANTIC C.L.R. CO., 318 U.S. 54, 67, 68.  COURTS SHOULD NOT
ASSUME THAT IN DETERMINING THESE QUESTIONS OF NEGLIGENCE JURIES WILL
FALL SHORT OF A FAIR PERFORMANCE OF THEIR CONSTITUTIONAL FUNCTION.  IN
REJECTING A CONTENTION THAT JURIES COULD BE EXPECTED TO DETERMINE
CERTAIN DISPUTED QUESTIONS ON WHIM, THIS COURT, SPEAKING THROUGH MR.
JUSTICE HOLMES, SAID:  "BUT IT MUST BE ASSUMED THAT THE CONSTITUTIONAL
TRIBUNAL DOES ITS DUTY AND FINDS FACTS ONLY BECAUSE THEY ARE PROVED." 
AIKENS V. WISCONSIN, 195 U.S. 194, 206. 

IN REACHING ITS CONCLUSION AS TO NEGLIGENCE, A JURY IS FREQUENTLY
CALLED UPON TO CONSIDER MANY SEPARATE STRANDS OF CIRCUMSTANCES, AND
FROM THESE CIRCUMSTANCES TO DRAW ITS ULTIMATE CONCLUSION ON THE ISSUE
OF NEGLIGENCE.  HERE THERE ARE MANY ARGUMENTS THAT COULD HAVE BEEN
PRESENTED TO THE JURY IN AN EFFORT TO PERSUADE IT THAT THE RAILROAD'S
CONDUCT WAS NOT NEGLIGENT, AND MANY COUNTER ARGUMENTS WHICH MIGHT HAVE
PERSUADED THE JURY THAT THE RAILROAD WAS NEGLIGENT.  THE SAME THING IS
TRUE AS TO WHETHER PETITIONER WAS GUILTY OF CONTRIBUTORY NEGLIGENCE. 
MANY OF SUCH ARGUMENTS WERE ADVANCED BY THE UTAH SUPREME COURT TO
SUPPORT ITS FINDING THAT THE PETITIONER WAS NEGLIGENT AND THAT THE
RAILROAD WAS NOT.  FN5  BUT THE ARGUMENTS MADE BY THE STATE SUPREME
COURT ARE RELEVANT AND APPROPRIATE ONLY FOR CONSIDERATION BY THE JURY,
THE TRIBUNAL SELECTED TO PASS ON THE ISSUES.  FOR THESE REASONS, THE
TRIAL COURT SHOULD HAVE SUBMITTED THE CASE TO THE JURY, AND IT WAS
ERROR FOR THE UTAH SUPREME COURT TO AFFIRM ITS ACTION IN TAKING THE
CASE FROM THE JURY. 

IT IS URGED BY PETITIONER THAT OTHER FACT ISSUES SHOULD HAVE BEEN
SUBMITTED TO THE JURY IN ADDITION TO THOSE WE HAVE SPECIFICALLY POINTED
OUT.  WE NEED NOT CONSIDER THESE CONTENTIONS NOW SINCE THEY MAY NOT
ARISE ON ANOTHER TRIAL OF THE CASE. 

THE JUDGMENT OF THE SUPREME COURT OF UTAH IS REVERSED AND THE CAUSE
IS REMANDED FOR FURTHER ACTION NOT INCONSISTENT WITH THIS OPINION.  IT
IS SO ORDERED. 

FN1  35 STAT. 65 AS AMENDED BY 36 STAT. 291 AND 53 STAT. 1404, 45
U.S.C. SECS. 51-59. 

FN2  THERE WAS EVIDENCE THAT OTHER TYPES OF CARS HAD A WIDER OVERHANG
THEREBY REDUCING THE SPACE AVAILABLE FOR PASSAGE BETWEEN THE POSTS AND
THE CAR.  THIS EVIDENCE BORE DIRECTLY ON THE FACT QUESTION AS TO THE
PRACTICE OF EMPLOYEES GENERALLY IN USING THE BOARDWAY AS PETITIONER DID
HERE. 

FN3  PETITIONER TESTIFIED IN PART AS FOLLOWS: 

"Q.  MR. WILKERSON, I WILL ASK YOU TO STATE WHETHER OR NOT YOU HAVE
EVER OBSERVED OTHER SWITCHMEN OR WORKMEN WORKING IN THE YARDS THERE IN
PASSING OVER THAT PIT WHILE CARS WERE STANDING ON 23 1/2 SINCE THE
SAFETY CHAINS WERE UP? 

"A.  YES, SIR, I HAVE. 

"Q.  WHAT HAS THAT PRACTICE BEEN, THE PRACTICE OF CROSSING OVER THE
PIT? 

"A.  MEN THAT WORK AROUND THERE, REGARDLESS OF WHETHER SWITCHMEN OR
CAR MEN THAT WANTED TO GO THAT WAY WENT THROUGH THERE. 

"Q.  WENT THROUGH - YOU MEAN OVER THE PIT? 

"A.  OVER THAT PIT, AS I JUST DESCRIBED, FROM EITHER SIDE. 

     .         .   .         .         . 

"Q.  I WILL ASK YOU TO STATE WHETHER OR NOT YOU OBSERVED ANY PRACTICE
WITH REFERENCE TO CROSSING OVER THE PIT WHEN MEN WERE WORKING ON THE
CARS THERE IN THE DAYTIME BEFORE THESE CHAINS WERE INSTALLED? 

"A.  WALKED RIGHT STRAIGHT ACROSS THE BOARD. 

"Q.  WAS THERE A BOARD USUALLY THERE TO WALK OVER? 

"A.  YES, SIR. 

"Q.  WAS THERE ANY CHANGE IN THAT PRACTICE AFTER THE CHAINS WERE
INSTALLED? 

"A. NONE, ONLY THEY HAD TO WALK AROUND THE CHAINS. 

     .      .         .         .         . 

"Q.  WHAT DID YOU OBSERVE WITH REFERENCE TO THE NUMBER OF TIMES THE
OCCASIONS WHEN MEN WOULD CROSS OVER THE PIT. 

"A.  OH, I COULDN'T SAY; I SUPPOSE MAYBE A HUNDRED TIMES; VARIES,
MEN, BOTH SWITCHMEN AND CAR MEN OR OTHERS WORKING THERE IN THE YARD
NECESSARY, PULLMAN, EMPLOYEES AND SO FORTH. 

"Q.  CROSSED OVER THE PIT? 

"A.  YES, SIR, IT WAS A COMMON PRACTICE FOR EVERYBODY TO USE THAT
THAT WAY. 

     .         .         .         .         . 

"Q.  DID YOU EVER SEE - DID YOU EVER NOTICE THE BOARD EVER BEING USED
FOR ANY OTHER PURPOSE EXCEPT MEN WALKING ACROSS? 

"A.  NO, SIR, I HAVEN'T. 

"Q.  ASK YOU TO STATE WHETHER OR NOT YOU EXPERIENCE ANY DIFFICULTY IN
PASSING BETWEEN THE CAR AND THE POST AND ONTO THE BOARD AND OVER THE
BOARD AND BETWEEN THE CAR AND THE NORTH POST AT THE TIME YOU PASSED IT,
THE FIRST TIME IN THE MORNING? 

"A.  NO." 

FN4  ANOTHER WITNESS TESTIFIED IN PART AS FOLLOWS: 

"Q.  AND WHAT HAVE YOU NOTICED WITH REFERENCE TO THE PRACTICE OF MEN
PASSING BETWEEN THE STANDING CARS ON 23 1/2 AND THE POSTS THAT HOLD THE
SAFETY CHAINS? 

"A.  WELL, THEY WOULD WALK THROUGH AND GET ON THE BOARD AND WALK TO
AND FROM EACH SIDE, AND THE MEN THAT WORK ON THE PIT WORK ON THAT
BOARD, AND SOMETIMES SET ON THE BOARD NEXT TO THE - IN NEXT TO THE CAR
THERE TO PERFORM THEIR WORK, YOU KNOW, LIKE WHERE THEY ARE UP UNDER, OR
WORKING ON THE CAR, THEY USE THE BOARD OVER FROM IT TO WORK ON. 

     .         .         .  .         . 

"Q.  WHAT HAS BEEN YOUR PRACTICE IN PASSING BETWEEN CARS THAT ARE
STANDING ON 23 1/2 AND THE POSTS THAT HOLD THE STAKES AND CHAINS WHEN
THEY HAVE BEEN IN PLACE? 

"A.  WHEN I HAVE OCCASION TO PASS THROUGH THERE, I PUT MY HAND ON THE
POST, STEP OVER ON THE BOARD, AND GO AROUND THE OTHER POST, AND THAT IS
THE WAY I PASS TO AND FROM ON THE PIT. 

"Q.  HAVE YOU OBSERVED OTHER MEN PASSING OVER THE PIT UNDER SIMILAR
CIRCUMSTANCES? 

"A.  YES, SIR, I HAVE. 

"Q.  AND WHAT CAN YOU SAY WITH REFERENCE TO THE - SUCH OCCURRENCES,
AS TO HOW OFTEN THEY HAPPEN? 

"A.  O, I WOULD JUDGE THAT I SAW THE MEN PASS THROUGH THERE DOZENS OF
TIMES.  ... 

     .         .   .         .         . 

"Q.  HAVE YOU SEEN ANY OTHER SWITCHMAN WORKING THERE IN THE YARDS ACT
SIMILARLY; THAT IS, GO AROUND THE POST, BETWEEN THE POST AND THE CAR
AND PASS OVER THE BOARD? 

"A.  YES, SIR, I HAVE SAW MY HELPERS AT DIFFERENT TIMES AND BEFORE
THE CHAINS WERE PLACED, WE USED THE BOARD AT ALL TIMES, YOU KNOW, JUST
TO CROSS THE PIT.  I HAVE WALKED ACROSS THE PIT A NUMBER OF TIMES THAT
WAY, AND ALSO MY HELPERS." 

THIS WITNESS LATER GAVE THE NAMES OF TWO SWITCHMEN HE HAD SEEN CROSS
AFTER CHAINS WERE PUT UP, BUT HE DID NOT THEREBY QUALIFY HIS TESTIMONY
PREVIOUSLY GIVEN AS TO THE PRACTICE OF EMPLOYEES GENERALLY TO USE THE
WALKWAY. 

FN5  THE STATE COURT ARGUED THAT "OTHER AND SAFER ROUTES WERE OPEN"
TO THE PETITIONER.  BUT CONTRIBUTORY NEGLIGENCE DOES NOT EXEMPT A
RAILROAD FROM LIABILITY FOR ITS OWN NEGLIGENCE. 

THE STATE COURT ALSO ADVANCED THE FOLLOWING ARGUMENT:  "IN THIS
PARTICULAR CASE, THE BOARD APPEARS ADEQUATE FOR THE USE OF THE PIT
CREWMEN, BUT ENTIRELY INADEQUATE IF INTENDED TO BE A CROSS-WALK FOR
OTHER EMPLOYEES.  EMPLOYEES CLIMBING IN AND OUT OF THE PIT APPROACH
MORE DELIBERATELY, USE OTHER AND DIFFERENT HAND HOLDS, AND ARE MORE
CAREFUL OF THEIR FOOTING, WHILE EMPLOYEES SWINGING ON TO THE PLANK IN A
HURRY ARE APT TO FORGET ABOUT THE SLIPPERY CONDITION OF AN OILY BOARD
AND FORGET ABOUT THE DANGERS INCIDENT TO CROSSING, AS DID THE
PLAINTIFF, WHO SWUNG HIMSELF AROUND THE CHAIN POST AND ONTO THE
PLANK."  ASIDE FROM THE APPARENT ABSENCE OF DIRECT EVIDENCE THAT PIT
CREWMEN WOULD EXERCISE GREATER CARE TO PROTECT THEMSELVES THAN WOULD
OTHER EMPLOYEES, WHETHER THEY WOULD OR NOT IS PATENTLY A JURY
QUESTION. 

THE STATE COURT ALSO SAID:  "HAD THEY NOT INTENDED TO PRECLUDE THE
USE OF THE BOARD AS A WALK-WAY, THE DEFENDANTS WOULD NOT HAVE INSTALLED
THE CHAIN POSTS SO AS TO BLOCK AN OPEN STRAIGHT APPROACH TO THE
BOARD."  THIS ARGUMENT OF THE STATE COURT IGNORES THE ABSENCE OF ANY
DIRECT EVIDENCE TO SHOW THAT THE CHAINS WERE ERECTED TO KEEP PEOPLE
FROM WALKING OVER THE OLD "PERMANENT BOARD" WALKWAY.  PETITIONER
TESTIFIED THAT IT WAS HIS UNDERSTANDING THAT THE CHAINS WERE ERECTED
"TO KEEP PEOPLE FROM WALKING DIRECTLY INTO THE OPEN PIT." 

ANOTHER ARGUMENT OF THE STATE SUPREME COURT WAS:  "ALSO, A SIGN NOT
TO CROSS WOULD HAVE AFFORDED PLAINTIFF NO ADDITIONAL SECURITY OR
WARNING, FOR HE DISREGARDED THE CHAIN AND HE WOULD NO DOUBT HAVE
IGNORED ANOTHER FORM OF WARNING."  IF SUCH AN INFERENCE WAS JUSTIFIABLE
AND WAS RELEVANT AT ALL ON THE QUESTION OF RAILROAD NEGLIGENCE, IT WAS
AN INFERENCE TO BE DRAWN FROM FACTS BY THE JURY, NOT BY THE COURT. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

TRIAL BY JURY AS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES
AND BY THE SEVERAL STATES PRESUPPOSES A JURY UNDER PROPER GUIDANCE OF A
DISINTERESTED AND COMPETENT TRIAL JUDGE.  HERRON V. SOUTHERN PACIFIC
CO., 283 U.S. 91.  IT IS AN IMPORTANT ELEMENT OF TRIAL BY JURY WHICH
PUTS UPON THE JUDGE THE EXACTING DUTY OF DETERMINING WHETHER THERE IS
SOLID EVIDENCE ON WHICH A JURY'S VERDICT COULD BE FAIRLY BASED.  WHEN A
PLAINTIFF CLAIMS THAT AN INJURY WHICH HE HAS SUFFERED IS ATTRIBUTABLE
TO A DEFENDANT'S NEGLIGENCE - WANT OF CARE IN THE DISCHARGE OF A DUTY
WHICH THE DEFENDANT OWED TO HIM - IT IS THE TRIAL JUDGE'S FUNCTION TO
DETERMINE WHETHER THE EVIDENCE IN ITS ENTIRETY WOULD RATIONALLY SUPPORT
A VERDICT FOR THE PLAINTIFF, ASSUMING THAT THE JURY TOOK, AS IT WOULD
BE ENTITLED TO TAKE, A VIEW OF THE EVIDENCE MOST FAVORABLE TO THE
PLAINTIFF.  IF THERE WERE A BRIGHT LINE DIVIDING NEGLIGENCE FROM NON
NEGLIGENCE, THERE WOULD BE NO PROBLEM.  ONLY AN INCOMPETENT OR A WILFUL
JUDGE WOULD TAKE A CASE FROM THE JURY WHEN THE ISSUE SHOULD BE LEFT TO
THE JURY.  BUT SINCE QUESTIONS OF NEGLIGENCE ARE QUESTIONS OF DEGREE,
OFTEN VERY NICE DIFFERENCES OF DEGREE, JUDGES OF COMPETENCE AND
CONSCIENCE HAVE IN THE PAST, AND WILL IN THE FUTURE, DISAGREE AS TO
WHETHER PROOF IN A CASE IS SUFFICIENT TO DEMAND SUBMISSION TO THE
JURY.  THE FACT THAT A THIRD COURT THINKS THERE WAS ENOUGH TO LEAVE THE
CASE TO THE JURY DOES NOT INDICATE THAT THE OTHER TWO COURTS WERE
UNMINDFUL OF THE JURY'S FUNCTION.  THE EASY BUT TIMID WAY OUT FOR A
TRIAL JUDGE IS TO LEAVE ALL CASES TRIED TO A JURY FOR JURY
DETERMINATION, BUT IN SO DOING HE FAILS IN HIS DUTY TO TAKE A CASE FROM
THE JURY WHEN THE EVIDENCE WOULD NOT WARRANT A VERDICT BY IT.  A TIMID
JUDGE, LIKE A BIASED JUDGE, IS INTRINSICALLY A LAWLESS JUDGE. 

THESE OBSERVATIONS ARE ESPECIALLY PERTINENT TO SUITS UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT.  THE DIFFICULTIES IN THESE CASES
DERIVE LARGELY FROM THE OUTMODED CONCEPT OF "NEGLIGENCE" AS A WORKING
PRINCIPLE FOR THE ADJUSTMENTS OF INJURIES INEVITABLE UNDER THE
TECHNOLOGICAL CIRCUMSTANCES OF MODERN INDUSTRY.  THIS CRUEL AND
WASTEFUL MODE OF DEALING WITH INDUSTRIAL INJURIES HAS LONG BEEN
DISPLACED IN INDUSTRY GENERALLY BY THE INSURANCE PRINCIPLE THAT
UNDERLIES WORKMEN'S COMPENSATION LAWS.  FOR REASONS THAT HARDLY REFLECT
DUE REGARD FOR THE INTERESTS OF RAILROAD EMPLOYEES, "NEGLIGENCE"
REMAINS THE BASIS OF LIABILITY FOR INJURIES TO THEM.  IT IS, OF COURSE,
THE DUTY OF COURTS TO ENFORCE THE FEDERAL EMPLOYERS' LIABILITY ACT,
HOWEVER OUTMODED AND UNJUST IN OPERATION IT MAY BE. BUT SO LONG AS
NEGLIGENCE RATHER THAN WORKMEN'S COMPENSATION IS THE BASIS OF RECOVERY,
JUST SO LONG WILL SUITS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT LEAD
TO CONFLICTING OPINIONS ABOUT "FAULT" AND "PROXIMATE CAUSE."  THE LAW
REPORTS ARE FULL OF UNEDIFYING PROOF OF THESE CONFLICTING VIEWS, AND
THAT TOO BY JUDGES WHO SEEK CONSCIENTIOUSLY TO PERFORM THEIR DUTY BY
NEITHER LEAVING EVERYTHING TO A JURY NOR, ON THE OTHER HAND, TURNING
THE FEDERAL EMPLOYERS' LIABILITY ACT INTO A WORKMEN'S COMPENSATION
LAW. 

CONSIDERING THE VOLUME AND COMPLEXITY OF THE CASES WHICH OBVIOUSLY
CALL FOR DECISION BY THIS COURT, AND CONSIDERING THE TIME AND THOUGHT
THAT THE PROPER DISPOSITION OF SUCH CASES DEMANDS, I DO NOT THINK WE
SHOULD TAKE CASES MERELY TO REVIEW FACTS ALREADY CANVASSED BY TWO AND
SOMETIMES THREE COURTS EVEN THOUGH THOSE FACTS MAY HAVE BEEN
ERRONEOUSLY APPRAISED.  THE DIVISION IN THIS COURT WOULD SEEM TO
DEMONSTRATE BEYOND PERADVENTURE THAT NOTHING IS INVOLVED IN THIS CASE
EXCEPT THE DRAWING OF ALLOWABLE INFERENCES FROM A NECESSARILY UNIQUE
SET OF CIRCUMSTANCES.  FOR THIS COURT TO TAKE A CASE WHICH TURNS MERELY
ON SUCH AN APPRAISAL OF EVIDENCE, HOWEVER MUCH HARDSHIP IN THE FALLIBLE
APPLICATION OF AN ARCHAIC SYSTEM OF COMPENSATION FOR INJURIES TO
RAILROAD EMPLOYEES MAY TOUCH OUR PRIVATE SYMPATHY, IS TO DENY DUE
REGARD TO THE CONSIDERATIONS WHICH LED THE COURT TO ASK AND CONGRESS TO
GIVE THE POWER TO CONTROL THE COURT'S DOCKET.  SUCH POWER CARRIES WITH
IT THE RESPONSIBILITY OF GRANTING REVIEW ONLY IN CASES THAT DEMAND
ADJUDICATION ON THE BASIS OF IMPORTANCE TO THE OPERATION OF OUR FEDERAL
SYSTEM; IMPORTANCE OF THE OUTCOME MERELY TO THE PARTIES IS NOT ENOUGH. 
IT HAS BEEN OUR PRACTICE TO DISMISS A WRIT OF CERTIORARI EVEN AFTER IT
WAS GRANTED WHERE ARGUMENT EXPOSED A WANT OF CONFLICT OR REVEALED THAT
THE CASE INVOLVED NO MORE THAN ITS PARTICULAR FACTS.  FN1  I BELIEVE WE
SHOULD ADHERE TO THIS PRACTICE IN THE PRESENT CASE. 

BUT THE IMPORTANCE OF ADHERING TO THIS PRACTICE CANNOT BE SEEN IN THE
PERSPECTIVE OF A SINGLE CASE.  DESPITE THE MOUNTING BURDEN OF THE
COURT'S BUSINESS, THIS IS THE THIRTIETH OCCASION IN WHICH A PETITION
FOR CERTIORARI HAS BEEN GRANTED DURING THE PAST DECADE TO REVIEW A
JUDGMENT DENYING RECOVERY UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IN
A CASE TURNING SOLELY ON JURY ISSUES.  THE ONLY PETITION ON BEHALF OF A
CARRIER THAT BROUGHT SUCH A CASE HERE DURING THIS PERIOD WAS DISMISSED,
AND RIGHTLY, AS IMPROVIDENTLY GRANTED.  MCCARTHY V. BRUNER, 322 U.S.
718; 323 U.S. 673.  NOR DOES WHAT THE UNITED STATES REPORTS DISCLOSE
REGARDING THE DISPOSITION OF PETITIONS FOR CERTIORARI TELL THE WHOLE
STORY OF THE COURT'S EXERCISE OF DISCRETION IN GRANTING OR DENYING
THEM.  THIS IS SO BECAUSE OF ADHERENCE, ON THE WHOLE, TO THE WISE
PRACTICE OF NOT PUBLICLY RECORDING THE VOTE OF THE JUSTICES.  OF
COURSE, SOME LIGHT ON THE SITUATION IS DERIVATIVELY SHED BY THE
DISCLOSED POSITION OF THE JUSTICES ON THE MERITS OF THE CASES.  BUT THE
UNAVAILABLE DATA ARE, AS CAN READILY BE IMAGINED, ESPECIALLY RELEVANT
IN THE CASE OF SUCH A RECURRING PROBLEM AS GRANTING OR DENYING
CERTIORARI UNDER A PARTICULAR STATUTE. 

I WOULD, THEREFORE, DISMISS THE PETITION AS HAVING BEEN IMPROVIDENTLY
GRANTED.  SINCE, HOWEVER, THAT IS NOT TO BE DONE, I TOO HAVE BEEN
OBLIGED TO RECANVASS THE RECORD AND LIKEWISE THINK THAT THERE WAS HERE
ENOUGH EVIDENCE TO GO TO THE JURY. 

FN1  THE REASONS FOR THIS PRACTICE WERE INDICATED BY CHIEF JUSTICE
TAFT FOR A UNANIMOUS COURT IN LAYNE & BOWLER CORP. V. WESTERN WELL
WORKS, 261 U.S. 387, 393:    "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." 

MR. JUSTICE BURTON, HAVING CONCURRED IN THE COURT'S OPINION, ALSO
JOINS IN THIS OPINION.   MR. JUSTICE DOUGLAS, CONCURRING. 

WHILE I JOIN IN THE OPINION OF THE COURT, I THINK IT APPROPRIATE TO
TAKE THIS OCCASION TO ACCOUNT FOR OUR STEWARDSHIP IN THIS GROUP OF
CASES. 

THE FEDERAL EMPLOYERS' LIABILITY ACT WAS DESIGNED TO PUT ON THE
RAILROAD INDUSTRY SOME OF THE COST FOR THE LEGS, EYES, ARMS, AND LIVES
WHICH IT CONSUMED IN ITS OPERATIONS.  NOT ALL THESE COSTS WERE IMPOSED,
FOR THE ACT DID NOT MAKE THE EMPLOYER AN INSURER.  THE LIABILITY WHICH
IT IMPOSED WAS THE LIABILITY FOR NEGLIGENCE.  BUT JUDGES HAD CREATED
NUMEROUS DEFENSES - FELLOW-SERVANT RULE, ASSUMPTION OF RISK,
CONTRIBUTORY NEGLIGENCE - SO THAT THE EMPLOYER WAS OFTEN EFFECTIVELY
INSULATED FROM LIABILITY EVEN THOUGH IT WAS RESPONSIBLE FOR MAINTENANCE
OF UNSAFE CONDITIONS OF WORK.  THE PURPOSE OF THE ACT WAS TO CHANGE
THAT STRICT RULE OF LIABILITY, TO LIFT FROM EMPLOYEES THE "PRODIGIOUS
BURDEN" OF PERSONAL INJURIES WHICH THAT SYSTEM HAD PLACED UPON THEM,
AND TO RELIEVE MEN "WHO BY THE EXIGENCIES AND NECESSITIES OF LIFE ARE
BOUND TO LABOR" FROM THE RISKS AND HAZARDS THAT COULD BE AVOIDED OR
LESSENED "BY THE EXERCISE OF PROPER CARE ON THE PART OF THE EMPLOYER IN
PROVIDING SAFE AND PROPER MACHINERY AND EQUIPMENT WITH WHICH THE
EMPLOYEE DOES HIS WORK."  FN1 

THAT PURPOSE WAS NOT GIVEN A FRIENDLY RECEPTION IN THE COURTS.  IN
THE FIRST PLACE, A GREAT MAZE OF RESTRICTIVE INTERPRETATIONS WERE
ENGRAFTED ON THE ACT, CONSTRUCTIONS THAT DEPRIVED THE BENEFICIARIES OF
MANY OF THE INTENDED BENEFITS OF THE LEGISLATION.  SEE SEABOARD AIR
LINE V. HORTON, 233 U.S. 492; TOLEDO, ST. L. & W.R. CO. V. ALLEN, 276
U.S. 165; AND THE REVIEW OF THE CASES IN TILLER V. ATLANTIC COAST LINE
R. CO., 318 U.S. 54, 62-67.  IN THE SECOND PLACE, DOUBTFUL QUESTIONS OF
FACT WERE TAKEN FROM THE JURY AND RESOLVED BY THE COURTS IN FAVOR OF
THE EMPLOYER.  THIS COURT LED THE WAY IN OVERTURNING JURY VERDICTS
RENDERED FOR EMPLOYEES.  SEE CHICAGO, M. & ST. P.R. CO. V. COOGAN, 271
U.S. 472; MISSOURI PAC. R. CO. V. AEBY, 275 U.S. 426; NEW YORK CENTRAL
R. CO. V. AMBROSE, 280 U.S. 486.  AND SO IT WAS THAT A GOODLY PORTION
OF THE RELIEF WHICH CONGRESS HAD PROVIDED EMPLOYEES WAS WITHHELD FROM
THEM. 

THE FIRST OF THESE OBSTACLES WHICH THE COURTS HAD CREATED COULD BE
REMOVED BY CONGRESS.  IN 1939 CONGRESS DID INDEED MOVE TO RELEASE THE
EMPLOYEES FROM THE BURDEN OF ASSUMPTION OF RISK WHICH THE COURT HAD
REIMPOSED ON THEM.  53 STAT. 1404, 45 U.S.C. SEC. 54; TILLER V.
ATLANTIC COAST LINE R. CO., SUPRA.  THE SECOND EVIL WAS NOT SO READILY
SUSCEPTIBLE OF CONGRESSIONAL CORRECTION UNDER A SYSTEM WHERE LIABILITY
IS BOTTOMED ON NEGLIGENCE.  SINCE THE CONDITION WAS ONE CREATED BY THE
COURT AND BEYOND EFFECTIVE CONTROL BY CONGRESS, IT WAS APPROPRIATE AND
FITTING THAT THE COURT CORRECT IT.  IN FACT, A DECISION NOT TO CORRECT
IT WAS TO LET THE ADMINISTRATION OF THIS LAW BE GOVERNED NOT BY THE AIM
OF THE LEGISLATION TO SAFEGUARD EMPLOYEES BUT BY A HOSTILE PHILOSOPHY
THAT PERMEATED ITS INTERPRETATION. 

THE BASIS OF LIABILITY UNDER THE ACT IS AND REMAINS NEGLIGENCE. 
JUDGES WILL NOT ALWAYS AGREE AS TO WHAT FACTS ARE NECESSARY TO
ESTABLISH NEGLIGENCE.  WE ARE NOT IN AGREEMENT IN ALL CASES.  BUT THE
REVIEW OF THE CASES COMING TO THE COURT FROM THE 1943 TERM TO DATE  FN2
AND SET FORTH IN THE APPENDIX TO THIS OPINION SHOWS, I THINK, A RECORD
MORE FAITHFUL TO THE DESIGN OF THE ACT THAN PREVIOUSLY PREVAILED. 

OF THE 55 PETITIONS FOR CERTIORARI FILED DURING THIS PERIOD, 20 HAVE
BEEN GRANTED.  OF THESE ONE WAS GRANTED AT THE INSTANCE OF THE
EMPLOYER, 19 AT THE INSTANCE OF AN EMPLOYEE.  IN 16 OF THESE CASES THE
LOWER COURT WAS REVERSED FOR SETTING ASIDE A JURY VERDICT FOR AN
EMPLOYEE OR TAKING THE CASE FROM THE JURY.  IN 3 THE LOWER COURT WAS
SUSTAINED IN TAKING THE CASE FROM THE JURY.  IN THE ONE CASE GRANTED AT
THE INSTANCE OF THE EMPLOYER WE HELD THAT IT HAD RECEIVED THE JURY
TRIAL ON CONTRIBUTORY NEGLIGENCE TO WHICH IT WAS ENTITLED.  IN THESE 20
CASES WE WERE UNANIMOUS IN 10 OF THE DECISIONS WHICH WE RENDERED ON THE
MERITS. 

OF THE 35 PETITIONS DENIED, 21 WERE BY EMPLOYERS CLAIMING THAT JURY
VERDICTS WERE ERRONEOUS OR THAT NEW TRIALS SHOULD NOT HAVE BEEN
ORDERED.  THE REMAINING 14 WERE FILED BY EMPLOYEES.  IN 10 OF THESE THE
LOWER COURT HAD WITHHELD THE CASE FROM THE JURY AND RENDERED JUDGMENT
FOR THE EMPLOYER, IN 3 IT HAD SUSTAINED JURY VERDICTS FOR THE EMPLOYER,
AND IN 1 REVERSED A JURY VERDICT FOR THE EMPLOYEE AND DIRECTED A NEW
TRIAL. 

FROM THIS GROUP OF CASES THREE OBSERVATIONS CAN BE MADE: 

(1)  THE BASIS OF LIABILITY HAS NOT BEEN SHIFTED FROM NEGLIGENCE TO
ABSOLUTE LIABILITY. 

(2)  THE CRITERION GOVERNING THE EXERCISE OF OUR DISCRETION IN
GRANTING OR DENYING CERTIORARI IS NOT WHO LOSES BELOW BUT WHETHER THE
JURY FUNCTION IN PASSING ON DISPUTED QUESTIONS OF FACT AND IN DRAWING
INFERENCES FROM PROVEN FACTS HAS BEEN RESPECTED. 

(3) THE HISTORIC ROLE OF THE JURY IN PERFORMING THAT FUNCTION, SEE
JONES V. EAST TENNESSEE, V. & G.R. CO., 128 U.S. 443, 445; WASHINGTON &
G.R. CO. V. MCDADE, 135 U.S. 554, 572; BAILEY V. CENTRAL VERMONT R.
CO., 319 U.S. 350, 353-354, IS BEING RESTORED IN THIS IMPORTANT CLASS
OF CASES. 

MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE JOIN IN THIS OPINION. 

                  APPENDIX TO OPINION OF DOUGLAS, J. 

I. CASES IN WHICH CERTIORARI WAS GRANTED: 

A. WHERE LOWER COURT WHICH TOOK THE CASE FROM THE JURY OR SET ASIDE A
JURY VERDICT FOR AN EMPLOYEE WAS REVERSED: 

TENNANT V. PEORIA & P.U.R. CO., 321 U.S. 29. 

TILLER V. ATLANTIC COAST LINE, 323 U.S. 574. 

BLAIR V. B. & O.R. CO., 323 U.S. 600. 

KEETON V. THOMPSON, 326 U.S. 689. 

LAVENDER V. KURN, 327 U.S. 645. 

COGSWELL V. CHICAGO & E. ILL. R. CO., 328 U.S. 820. 

JESIONOWSKI V. BOSTON & M.R. CO., 329 U.S. 452. 

ELLIS V. UNION P.R. CO., 329 U.S. 649. 

PAULY V. MCCARTHY, 330 U.S. 802. 

MYERS V. READING CO., 331 U.S. 477(SAFETY APPLIANCE ACT). 

LILLIE V. THOMPSON, 332 U.S. 459. 

ANDERSON V. ATCHISON, T. & S.F.R. CO., 333 U.S. 821. 

EUBANKS V. THOMPSON, 334 U.S. 854. 

PENN V. CHICAGO & N.W.R. CO., 335 U.S. 849. 

CORAY V. SOUTHERN PACIFIC CO., 335 U.S. 520. 

WILKERSON V. MCCARTHY, 336 U.S. 53. 

I. CASES IN WHICH CERTIORARI WAS GRANTED - CONTINUED. 

B. WHERE LOWER COURT WHICH SET ASIDE A JURY VERDICT FOR AN EMPLOYEE
OR RENDERED JUDGMENT FOR THE EMPLOYER ON QUESTIONS OF LAW WAS
SUSTAINED: 

BRADY V. SOUTHERN R. CO., 320 U.S. 476. 

HUNTER V. TEXAS ELECTRIC R. CO., 332 U.S. 827. 

ECKENRODE V. PENN.  R. CO., 335 U.S. 329. 

C. WHERE LOWER COURT WHICH UPHELD THE JURY'S VERDICT ON THE ISSUES OF
NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE WAS SUSTAINED: 

MCCARTHY V. BRUNER, 323 U.S. 673. 

II.  CASES IN WHICH CERTIORARI WAS DENIED: 

A. WHERE LOWER COURT WITHHELD CASE FROM JURY AND RENDERED JUDGMENT
FOR THE EMPLOYER: 

BEAMER V. VIRGINIAN R. CO., 321 U.S. 763. 

COWDRICK V. PENN.  R. CO., 323 U.S. 799. 

NEGRO V. BOSTON & MAINE R., 324 U.S. 862. 

FANTINI V. READING CO., 325 U.S. 856. 

SCARBOROUGH V. PENNSYLVANIA R. CO., 326 U.S. 755. 

CHISHOLM V. READING CO., 329 U.S. 807. 

WALLER V. NORTHERN P.T. CO., 329 U.S. 742. 

WOLFE V. HENWOOD, 332 U.S. 773. 

LASAGNA V. MCCARTHY, 332 U.S. 829. 

TRUST CO. OF CHICAGO V. ERIE R. CO., 334 U.S. 845. 

B. WHERE LOWER COURT SUSTAINED A JURY VERDICT FOR THE EMPLOYER: 

BARRY V. READING CO., 324 U.S. 867. 

BENTON V. ST. LOUIS-S.F.R. CO., 324 U.S. 843. 

BENSON V. MISSOURI-KANSAS-TEXAS R. CO., 332 U.S. 830. 

C. WHERE LOWER COURT REVERSED A JURY VERDICT FOR THE EMPLOYEE AND
DIRECTED A NEW TRIAL: 

OWENS V. UNION P.R. CO., 323 U.S. 740. 

II.  CASES IN WHICH CERTIORARI WAS DENIED - CONTINUED. 

D. WHERE LOWER COURT SUSTAINED JURY VERDICT FOR THE EMPLOYEE OR HELD
THAT THE EMPLOYEE'S CASE SHOULD HAVE GONE TO THE JURY: 

SOUTHERN PACIFIC CO. V. JESTER, 323 U.S. 716. 

THOMPSON V. GODSY, 323 U.S. 719. 

NORTHERN P.R. CO. V. BIMBERG, 323 U.S. 752. 

TERMINAL R. ASSN. V. COPELAND, 323 U.S. 799. 

CHICAGO & E. ILL. R. CO. V. WADDELL, 323 U.S. 732. 

BOSTON & M.R. V. CABANA, 325 U.S. 873. 

TEXAS & P.R. CO. V. RILEY, 325 U.S. 873. 

TERMINAL R. ASSN. V. MOONEY, 326 U.S. 723. 

TERMINAL R. ASSN. V. SCHORB, 326 U.S. 786. 

BALTIMORE & O.C.T.R. CO. V. HOWARD, 328 U.S. 867. 

GARDNER V. GRISWOLD, 329 U.S. 725. 

HENWOOD V. CHANEY, 329 U.S. 760. 

BOSTON & MAINE R. V. MEECH, 329 U.S. 763. 

WHEELING & L.E.R. CO. V. KEITH, 332 U.S. 763. 

DELAWARE, LACKAWANNA & W.R. CO. V. MOSTYN, 332 U.S. 770. 

ATLANTIC COAST LINE V. MEEKS, 333 U.S. 827. 

WABASH R. CO. V. HAMPTON, 333 U.S. 833. 

FLEMING V. HUSTED, 333 U.S. 843. 

UNITY R. CO. V. KURIMSKY, 333 U.S. 855. 

BALTIMORE & O.R. CO. V. SKIDMORE, 335 U.S. 816. 

E. WHERE LOWER COURT SET ASIDE A JURY VERDICT FOR THE EMPLOYER
BECAUSE OF ERRONEOUS INSTRUCTIONS AND ORDERED A NEW TRIAL: 

PENNSYLVANIA R. CO. V. MCCARTHY, 329 U.S. 812. 

FN1  H.R. REP. NO. 1386, 60TH CONG., 1ST SESS. 2(1908). 

FN2  CASES WHERE PETITIONS FOR CERTIORARI WERE GRANTED THIS TERM BUT
WHICH HAVE NOT YET BEEN DECIDED ON THE MERITS HAVE NOT BEEN INCLUDED. 
NOR HAVE CASES BEEN INCLUDED WHICH THOUGH ARISING UNDER THE ACT PRESENT
ISSUES OTHER THAN THOSE OF NEGLIGENCE.  MOREOVER, WABASH R. CO. V.
WILLIAMSON, CERTIORARI DENIED, 330 U.S. 824, HAS BEEN OMITTED SINCE
NEGLIGENCE WAS ADMITTED BY THE EMPLOYER, THE CASE TURNING ON THE
CONSTRUCTION OF A RAILROAD RULE. 

MR. CHIEF JUSTICE VINSON, DISSENTING. 

IN MY VIEW OF THE RECORD, THERE IS NO EVIDENCE, NOR ANY INFERENCE
WHICH REASONABLY MAY BE DRAWN FROM THE EVIDENCE WHEN VIEWED IN THE
LIGHT MOST FAVORABLE TO THE PETITIONER, WHICH COULD SUSTAIN A VERDICT
FOR HIM.  THIS LEADS ME TO CONCLUDE THAT THE TRIAL COURT PROPERLY
DIRECTED A VERDICT FOR THE RESPONDENTS, AND I WOULD AFFIRM. 

MR. JUSTICE JACKSON, DISSENTING. 

THE TRIAL COURT, AFTER HEARING ALL THE EVIDENCE AND SEEING THE
WITNESSES, DIRECTED A VERDICT OF NO CAUSE OF ACTION.  THE UTAH SUPREME
COURT, IN A CAREFUL OPINION, DECIDED TWO PROPOSITIONS: FIRST, WHETHER
THIS COURT STILL HOLDS THAT A PLAINTIFF "IN ORDER TO RECOVER MUST STILL
SHOW NEGLIGENCE ON THE PART OF THE EMPLOYER."  IT RESOLVED ITS DOUBTS
BY RELYING UPON STATEMENTS OF THIS COURT TO THE EFFECT THAT IT STILL
DOES ADHERE TO THAT REQUIREMENT.  FN1  SECOND, WHETHER THERE IS ANY
EVIDENCE OF NEGLIGENCE.  ON A CAREFUL ANALYSIS, IT FOUND NO EVIDENCE
WHATEVER OF NEGLIGENCE IN THIS CASE.  FOLLOWING ESTABLISHED PRINCIPLES
OF LAW, IT CONCLUDED THAT IT WOULD HAVE BEEN ERROR TO LET SUCH A CASE
GO TO THE JURY, AND THEREFORE AFFIRMED THE TRIAL COURT'S REFUSAL SO TO
DO. 

THIS COURT NOW REVERSES AND, TO MY MIND AT LEAST, ESPOUSES THE
DOCTRINE THAT ANY TIME A TRIAL OR APPELLATE COURT WEIGHS EVIDENCE OR
EXAMINES FACTS IT IS USURPING THE JURY'S FUNCTION.  BUT UNDER THAT RULE
EVERY CLAIM OF INJURY WOULD REQUIRE JURY TRIAL, EVEN IF THE EVIDENCE
SHOWED NO POSSIBLE BASIS FOR A FINDING OF NEGLIGENCE.  DETERMINATION OF
WHETHER THERE COULD BE SUCH A BASIS IS A FUNCTION OF THE TRIAL COURT,
EVEN THOUGH IT INVOLVES WEIGHING EVIDENCE AND EXAMINING FACTS.  I THINK
WE ARE UNDER A DUTY TO EXAMINE THE RECORD IMPARTIALLY IF WE TAKE SUCH
CASES AND TO SUSTAIN THE LOWER COURTS WHERE, AS HERE, A FINDING OF
NEGLIGENCE WOULD OBVIOUSLY BE WITHOUT BASIS IN FACT. 

I AM NOT UNAWARE THAT EVEN IN THIS OPINION THE COURT CONTINUES TO PAY
LIP SERVICE TO THE DOCTRINE THAT LIABILITY IN THESE CASES IS TO BE
BASED ONLY UPON FAULT.  BUT ITS STANDARD OF FAULT IS SUCH IN THIS CASE
AS TO INDICATE THAT THE PRINCIPLE IS WITHOUT MUCH PRACTICAL MEANING. 

THIS RECORD SHOWS THAT BOTH THE WHEEL PIT INTO WHICH PLAINTIFF FELL
AND THE BOARD ON WHICH HE WAS TRYING TO CROSS OVER THE PIT WERE BLOCKED
OFF BY SAFETY CHAINS STRUNG BETWEEN POSTS.  PLAINTIFF ADMITS HE KNEW
THE CHAINS WERE THERE TO KEEP HIM FROM CROSSING OVER THE PIT AND TO
REQUIRE HIM TO GO A FEW FEET FARTHER TO WALK AROUND IT.  AFTER THE
CHAINS WERE PUT UP, ANY PERSON UNDERTAKING TO USE THE BOARD AS A CROSS
WALK HAD TO COMPLETE INVOLVED CONTORTIONS AND GYMNASTICS, PARTICULARLY
WHEN, AS WAS THE CASE WITH PETITIONER, A CAR WAS ON THE TRACK 23 1/2. 
A CASUAL EXAMINATION OF THE MODEL FILED AS AN EXHIBIT IN THIS COURT
SHOWS HOW DIFFICULT WAS SUCH A PASSAGE.  NEVERTHELESS, THE COURT HOLDS
THAT IF EMPLOYEES SUCCEEDED IN DISREGARDING THE CHAINS AND FORCED
PASSAGE FREQUENTLY ENOUGH TO BE CONSIDERED "CUSTOMARY," AND THE
RAILROAD TOOK NO FURTHER ACTION, ITS FAILURE SO TO DO WAS NEGLIGENCE. 
THE SAME RULE WOULD NO DOUBT APPLY IF THE RAILROAD'S PRECAUTIONS HAD
CONSISTED OF A BARRICADE, OR AN ARMED GUARD.  I THINK THE RAILROAD HERE
COULD NOT FAIRLY BE FOUND GUILTY OF NEGLIGENCE AND THAT THERE WAS NO
JURY QUESTION. 

IF IN THIS CLASS OF CASES, WHICH FORMS A GROWING PROPORTION OF ITS
TOTAL, THIS COURT REALLY IS APPLYING ACCEPTED PRINCIPLES OF AN OLD BODY
OF LIABILITY LAW IN WHICH LOWER COURTS ARE GENERALLY EXPERIENCED, I DO
NOT SEE WHY THEY ARE SO BAFFLED AND CONFUSED AT WHAT GOES ON HERE.  ON
THE OTHER HAND, IF THIS COURT CONSIDERS A REFORM OF THIS LAW
APPROPRIATE AND WITHIN THE JUDICIAL POWER TO PROMULGATE, I DO NOT SEE
WHY IT SHOULD CONSTANTLY DENY THAT IT IS DOING JUST THAT.    I THINK A
COMPARISON OF THE STATE SUPREME COURT'S OPINION,  - UTAH - , 187 P.2D
188, WITH THE OPINION OF THIS COURT WILL FAIRLY RAISE, IN THE MINDS OF
COURTS BELOW AND OF THE PROFESSION, THE QUESTION I LEAVE TO THEIR
PERSPICACITY TO ANSWER:  IN WHICH PROPOSITION DID THE SUPREME COURT OF
UTAH REALLY ERR? 

FN1  THE SUPREME COURT OF UTAH CONSIDERED AND REJECTED THE OPINION IN
GRISWOLD V. GARDNER, 155 F.2D 333, IN WHICH IT WAS SAID: 

"ANY DETAILED REVIEW OF THE EVIDENCE IN A CASE OF THIS CHARACTER FOR
THE PURPOSE OF DETERMINING THE PROPRIETY OF THE TRIAL COURT'S REFUSAL
TO DIRECT A VERDICT WOULD BE AN IDLE AND USELESS CEREMONY IN THE LIGHT
OF THE RECENT DECISIONS OF THE SUPREME COURT.  THIS IS SO REGARDLESS OF
WHAT WE MIGHT THINK OF THE SUFFICIENCY OF THE EVIDENCE IN THIS
RESPECT.  THE FACT IS, SO WE THINK, THAT THE SUPREME COURT HAS IN
EFFECT CONVERTED THIS NEGLIGENCE STATUTE INTO A COMPENSATION LAW
THEREBY MAKING, FOR ALL PRACTICAL PURPOSES, A RAILROAD AN INSURER OF
ITS EMPLOYEES.  (SEE DISSENT OF MR. JUSTICE ROBERTS IN BAILEY V.
CENTRAL VERMONT RY., 319 U.S. 350, 358, 63 S. CT. 1062, 1066, 87 L. ED.
1444.) 

"THE SUPREME COURT, COMMENCING WITH TILLER V. ATLANTIC COASTLINE R.
CO., 318 U.S. 54, 63 S. CT. 444, 87 L. ED. 610, 143 A.L.R. 967, IN A
SUCCESSION OF CASES HAS REVERSED EVERY COURT (WITH ONE EXCEPTION
HEREINAFTER NOTED) WHICH HAS HELD THAT A DEFENDANT WAS ENTITLED TO A
DIRECTED VERDICT.  IN THE TILLER CASE, THE SUPREME COURT REVERSED THE
COURT OF APPEALS FOR THE FOURTH CIRCUIT, 128 F.2D 420, WHICH HAD
AFFIRMED THE DISTRICT COURT IN DIRECTING A VERDICT.  THE CASE, UPON
REMAND, WAS AGAIN TRIED IN THE COURT BELOW, WHERE A DIRECTED VERDICT
WAS DENIED.  FOR THIS DENIAL THE COURT OF APPEALS REVERSED AND AGAIN
THE SUPREME COURT REVERSED THE COURT OF APPEALS, HOLDING THAT THE
DISTRICT COURT PROPERLY SUBMITTED THE CASE TO THE JURY.  IN TENNANT V.
PEORIA & P.U.R. CO., 321 U.S. 29, 64 S. CT. 409, 88 L. ED. 520, THIS
COURT REVERSED THE DISTRICT COURT ON ACCOUNT OF ITS REFUSAL TO DIRECT A
VERDICT, AND OUR DECISION, 134 F.2D 860, WAS REVERSED BY THE SUPREME
COURT.  IN BAILEY V. CENTRAL VERMONT RY., 319 U.S. 350, 63 S. CT. 1062,
87 L. ED. 1444, THE SUPREME COURT OF VERMONT HELD THAT THERE SHOULD
HAVE BEEN A DIRECTED VERDICT FOR THE DEFENDANT, AND THE SUPREME COURT
REVERSED THE DECISION OF THAT COURT.  IN BLAIR V. BALTIMORE & O.R. CO.,
323 U.S. 600, 65 S. CT. 545, 89 L. ED. 490, THE SUPREME COURT REVERSED
THE SUPREME COURT OF PENNSYLVANIA WHICH HAD HELD THAT THERE SHOULD HAVE
BEEN A DIRECTED VERDICT.  IN THE RECENT CASE OF LAVENDER,
ADMINISTRATOR, ETC., V. KURN ET AL., (327 U.S. 645) 66 S. CT. 740, THE
SUPREME COURT REVERSED THE SUPREME COURT OF MISSOURI WHICH HAD HELD
THAT THERE SHOULD HAVE BEEN A DIRECTED VERDICT FOR EACH OF THE
DEFENDANTS. 

"THE ONLY EXCEPTION TO THIS UNBROKEN LINE OF DECISIONS IS BRADY V.
SOUTHERN R. CO., 320 U.S. 476, 64 S. CT. 232, 88 L. ED. 239, WHERE THE
SUPREME COURT OF NORTH CAROLINA WAS AFFIRMED IN ITS HOLDING THAT THERE
SHOULD HAVE BEEN A DIRECTED VERDICT.  THIS EXCEPTION, HOWEVER, IS OF
LITTLE CONSEQUENCE IN VIEW OF THE FACT THAT FOUR MEMBERS OF THE COURT
DISSENTED." 
..END :












KOVACS V. COOPER, 336 U.S. 77 


NO. 9.  SUBMITTED OCTOBER 11, 1948.  - DECIDED JANUARY 31, 1949.  - 135
N.J.L. 584, 52 A.2D 806, AFFIRMED. 


AN ORDINANCE OF TRENTON, NEW JERSEY, FORBIDS THE USE OR OPERATION ON
THE PUBLIC STREETS OF A "SOUND TRUCK" OR OF ANY INSTRUMENT WHICH EMITS
"LOUD AND RAUCOUS NOISES" AND IS ATTACHED TO A VEHICLE ON THE PUBLIC
STREETS.  HELD:  AS APPLIED TO THE DEFENDANT IN THIS CASE, IT DOES NOT
INFRINGE THE RIGHT OF FREE SPEECH IN VIOLATION OF THE FIRST AMENDMENT,
MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.  PP. 78-79,
89. 

KOVACS V. COOPER, JUDGE. 

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

APPELLANT WAS CONVICTED IN POLICE COURT FOR VIOLATION OF AN ORDINANCE
OF TRENTON, NEW JERSEY.  THE NEW JERSEY SUPREME COURT UPHELD THE
CONVICTION, 135 N.J.L. 64, 50 A.2D 451, AND THE COURT OF ERRORS AND
APPEALS AFFIRMED BY AN EQUALLY DIVIDED COURT.  135 N.J.L. 584, 52 A.2D
806.  ON APPEAL TO THIS COURT, AFFIRMED, P. 89. 

MR. JUSTICE REED ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH THE CHIEF JUSTICE AND MR. JUSTICE BURTON JOIN. 

THIS APPEAL INVOLVES THE VALIDITY OF A PROVISION OF ORDINANCE NO. 430
OF THE CITY OF TRENTON, NEW JERSEY.  IT READS AS FOLLOWS: 

"4.  THAT IT SHALL BE UNLAWFUL FOR ANY PERSON, FIRM OR CORPORATION,
EITHER AS PRINCIPAL, AGENT OR EMPLOYEE, TO PLAY, USE OR OPERATE FOR
ADVERTISING PURPOSES, OR FOR ANY OTHER PURPOSE WHATSOEVER, ON OR UPON
THE PUBLIC STREETS, ALLEYS OR THOROUGHFARES IN THE CITY OF TRENTON, ANY
DEVICE KNOWN AS A SOUND TRUCK, LOUD SPEAKER OR SOUND AMPLIFIER, OR
RADIO OR PHONOGRAPH WITH A LOUD SPEAKER OR SOUND AMPLIFIER, OR ANY
OTHER INSTRUMENT KNOWN AS A CALLIOPE OR ANY INSTRUMENT OF ANY KIND OR
CHARACTER WHICH EMITS THEREFROM LOUD AND RAUCOUS NOISES AND IS ATTACHED
TO AND UPON ANY VEHICLE OPERATED OR STANDING UPON SAID STREETS OR
PUBLIC PLACES AFOREMENTIONED." 

THE APPELLANT WAS FOUND GUILTY OF VIOLATING THIS ORDINANCE BY THE
APPELLEE, A POLICE JUDGE OF THE CITY OF TRENTON.  HIS CONVICTION WAS
UPHELD BY THE NEW JERSEY SUPREME COURT, KOVACS V. COOPER, 135 N.J.L.
64, 50 A.2D 451, AND THE JUDGMENT WAS AFFIRMED WITHOUT A MAJORITY
OPINION BY THE NEW JERSEY COURT OF ERRORS AND APPEALS IN AN EQUALLY
DIVIDED COURT.  THE DISSENTS ARE PRINTED.  135 N.J.L. 584, 52 A.2D
806. 

WE TOOK JURISDICTION  FN1  TO CONSIDER THE CHALLENGE MADE TO THE
CONSTITUTIONALITY OF THE SECTION ON ITS FACE AND AS APPLIED ON THE
GROUND THAT SEC. 1 OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION WAS VIOLATED BECAUSE THE SECTION AND THE CONVICTION ARE IN
CONTRAVENTION OF RIGHTS OF FREEDOM OF SPEECH, FREEDOM OF ASSEMBLAGE AND
FREEDOM TO COMMUNICATE INFORMATION AND OPINIONS TO OTHERS.  THE
ORDINANCE IS ALSO CHALLENGED AS VIOLATIVE OF THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT ON THE GROUND THAT IT IS SO OBSCURE, VAGUE,
AND INDEFINITE AS TO BE IMPOSSIBLE OF REASONABLY ACCURATE
INTERPRETATION.  NO QUESTION WAS RAISED AS TO THE SUFFICIENCY OF THE
COMPLAINT. 

AT THE TRIAL IN THE TRENTON POLICE COURT, A CITY PATROLMAN TESTIFIED
THAT WHILE ON HIS POST HE HEARD A SOUND TRUCK BROADCASTING MUSIC.  UPON
GOING IN THE DIRECTION OF SAID SOUND, HE LOCATED THE TRUCK ON A PUBLIC
STREET NEAR THE MUNICIPAL BUILDING.  AS HE APPROACHED THE TRUCK, THE
MUSIC STOPPED AND HE HEARD A MAN'S VOICE BROADCASTING FROM THE TRUCK. 
THE APPELLANT ADMITTED THAT HE OPERATED THE MECHANISM FOR THE MUSIC AND
SPOKE INTO THE AMPLIFIER.  THE RECORD FROM THE POLICE COURT DOES NOT
SHOW THE PURPOSE OF THE BROADCASTING BUT THE OPINION IN THE SUPREME
COURT SUGGESTS THAT THE APPELLANT WAS USING THE SOUND APPARATUS TO
COMMENT ON A LABOR DISPUTE THEN IN PROGRESS IN TRENTON. 

THE CONTENTION THAT THE SECTION IS SO VAGUE, OBSCURE AND INDEFINITE
AS TO BE UNENFORCEABLE MERITS ONLY A PASSING REFERENCE.  THIS OBJECTION
CENTERS AROUND THE USE OF THE WORDS "LOUD AND RAUCOUS."  WHILE THESE
ARE ABSTRACT WORDS, THEY HAVE THROUGH DAILY USE ACQUIRED A CONTENT THAT
CONVEYS TO ANY INTERESTED PERSON A SUFFICIENTLY ACCURATE CONCEPT OF
WHAT IS FORBIDDEN.  LAST TERM, AFTER THOROUGH CONSIDERATION OF THE
PROBLEM OF VAGUENESS IN LEGISLATION AFFECTING LIBERTY OF SPEECH, THIS
COURT INVALIDATED A CONVICTION UNDER A NEW YORK STATUTE CONSTRUED AND
APPLIED TO PUNISH THE DISTRIBUTION OF MAGAZINES "PRINCIPALLY MADE UP OF
CRIMINAL NEWS OR STORIES OF DEEDS OF BLOODSHED OR LUST, SO MASSED AS TO
BECOME VEHICLES FOR INCITING VIOLENT AND DEPRAVED CRIMES AGAINST THE
PERSON."  WINTERS V. NEW YORK, 333 U.S. 507, 518.  AS THUS CONSTRUED WE
SAID THAT THE STATUTE WAS SO VAGUE THAT AN HONEST DISTRIBUTOR OF TALES
OF WAR HORRORS COULD NOT KNOW WHETHER HE WAS VIOLATING THE STATUTE.  P.
520.  BUT IN THE WINTERS CASE WE POINTED OUT THAT PROSECUTIONS MIGHT BE
BROUGHT UNDER STATUTES PUNISHING THE DISTRIBUTION OF "OBSCENE, LEWD,
LASCIVIOUS, FILTHY, INDECENT OR DISGUSTING" MAGAZINES.  P. 511.  WE
SAID, P. 518: 

"THE IMPOSSIBILITY OF DEFINING THE PRECISE LINE BETWEEN PERMISSIBLE
UNCERTAINTY IN STATUTES CAUSED BY DESCRIBING CRIMES BY WORDS WELL
UNDERSTOOD THROUGH LONG USE IN THE CRIMINAL LAW - OBSCENE, LEWD,
LASCIVIOUS, FILTHY, INDECENT OR DISGUSTING - AND THE UNCONSTITUTIONAL
VAGUENESS THAT LEAVES A PERSON UNCERTAIN AS TO THE KIND OF PROHIBITED
CONDUCT - MASSING STORIES TO INCITE CRIME - HAS RESULTED IN THREE
ARGUMENTS OF THIS CASE IN THIS COURT." 

WE USED THE WORDS QUOTED ABOVE FROM PAGE 511 AS EXAMPLES OF
PERMISSIBLE STANDARDS OF STATUTES FOR CRIMINAL PROSECUTION.  P. 520. 
THERE WE SAID: 

"TO SAY THAT A STATE MAY NOT PUNISH BY SUCH A VAGUE STATUTE CARRIES
NO IMPLICATION THAT IT MAY NOT PUNISH CIRCULATION OF OBJECTIONABLE
PRINTED MATTER, ASSUMING THAT IT IS NOT PROTECTED BY THE PRINCIPLES OF
THE FIRST AMENDMENT, BY THE USE OF APT WORDS TO DESCRIBE THE PROHIBITED
PUBLICATIONS.  ...  NEITHER THE STATES NOR CONGRESS ARE PREVENTED BY
THE REQUIREMENT OF SPECIFICITY FROM CARRYING OUT THEIR DUTY OF
ELIMINATING EVILS TO WHICH, IN THEIR JUDGMENT, SUCH PUBLICATIONS GIVE
RISE." 

WE THINK THE WORDS OF SEC. 4 OF THIS TRENTON ORDINANCE COMPLY WITH
THE REQUIREMENTS OF DEFINITENESS AND CLARITY, SET OUT ABOVE. 

THE SCOPE OF THE PROTECTION AFFORDED BY THE FOURTEENTH AMENDMENT, FOR
THE RIGHT OF A CITIZEN TO PLAY MUSIC AND EXPRESS HIS VIEWS ON MATTERS
WHICH HE CONSIDERS TO BE OF INTEREST TO HIMSELF AND OTHERS ON A PUBLIC
STREET THROUGH SOUND AMPLIFICATION DEVICES MOUNTED ON VEHICLES, MUST BE
CONSIDERED.  FREEDOM OF SPEECH, FREEDOM OF ASSEMBLY AND FREEDOM TO
COMMUNICATE INFORMATION AND OPINION TO OTHERS ARE ALL COMPREHENDED ON
THIS APPEAL IN THE CLAIMED RIGHT OF FREE SPEECH.  THEY WILL BE SO
TREATED IN THIS OPINION. 

THE USE OF SOUND TRUCKS AND OTHER PERIPATETIC OR STATIONARY
BROADCASTING DEVICES FOR ADVERTISING, FOR RELIGIOUS EXERCISES AND FOR
DISCUSSION OF ISSUES OR CONTROVERSIES HAS BROUGHT FORTH NUMEROUS
MUNICIPAL ORDINANCES.  THE AVOWED AND OBVIOUS PURPOSE OF THESE
ORDINANCES IS TO PROHIBIT OR MINIMIZE SUCH SOUNDS ON OR NEAR THE
STREETS SINCE SOME CITIZENS FIND THE NOISE OBJECTIONABLE AND TO SOME
DEGREE AN INTERFERENCE WITH THE BUSINESS OR SOCIAL ACTIVITIES IN WHICH
THEY ARE ENGAGED OR THE QUIET THAT THEY WOULD LIKE TO ENJOY.  FN2  A
SATISFACTORY ADJUSTMENT OF THE CONFLICTING INTERESTS IS DIFFICULT AS
THOSE WHO DESIRE TO BROADCAST CAN HARDLY ACQUIESCE IN A REQUIREMENT TO
MODULATE THEIR SOUNDS TO A PITCH THAT WOULD NOT RISE ABOVE OTHER STREET
NOISES NOR WOULD THEY DEEM A RESTRICTION TO SPARSELY USED LOCALITIES OR
TO HOURS AFTER WORK AND BEFORE SLEEP - SAY 6 TO 9 P.M. - SUFFICIENT FOR
THE EXERCISE OF THEIR CLAIMED PRIVILEGE.  MUNICIPALITIES ARE SEEKING
ACTIVELY A SOLUTION.  NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS,
REPORT NO. 123, 1948.  UNRESTRAINED USE THROUGHOUT A MUNICIPALITY OF
ALL SOUND AMPLIFYING DEVICES WOULD BE INTOLERABLE.  ABSOLUTE
PROHIBITION WITHIN MUNICIPAL LIMITS OF ALL SOUND AMPLIFICATION, EVEN
THOUGH REASONABLY REGULATED IN PLACE, TIME AND VOLUME, IS UNDESIRABLE
AND PROBABLY UNCONSTITUTIONAL AS AN UNREASONABLE INTERFERENCE WITH
NORMAL ACTIVITIES. 

WE HAVE HAD RECENTLY BEFORE US AN ORDINANCE OF THE CITY OF LOCKPORT,
NEW YORK, PROHIBITING SOUND AMPLIFICATION WHEREBY THE SOUND WAS CAST ON
PUBLIC PLACES SO AS TO ATTRACT THE ATTENTION OF THE PASSING PUBLIC TO
THE ANNOYANCE OF THOSE WITHIN THE RADIUS OF THE SOUNDS.  THE ORDINANCE
CONTAINED THIS EXCEPTION: 

"SECTION 3.  EXCEPTION.  PUBLIC DISSEMINATION, THROUGH RADIO
LOUDSPEAKERS, OF ITEMS OF NEWS AND MATTERS OF PUBLIC CONCERN AND
ATHLETIC ACTIVITIES SHALL NOT BE DEEMED A VIOLATION OF THIS SECTION
PROVIDED THAT THE SAME BE DONE UNDER PERMISSION OBTAINED FROM THE CHIEF
OF POLICE." 

THIS COURT HELD THE ORDINANCE "UNCONSTITUTIONAL ON ITS FACE," SAIA V.
NEW YORK, 334 U.S. 558, BECAUSE THE QUOTED SECTION ESTABLISHED A
"PREVIOUS RESTRAINT" ON FREE SPEECH WITH "NO STANDARDS PRESCRIBED FOR
THE EXERCISE" OF DISCRETION BY THE CHIEF OF POLICE.  WHEN ORDINANCES
UNDERTAKE CENSORSHIP OF SPEECH OR RELIGIOUS PRACTICES BEFORE PERMITTING
THEIR EXERCISE, THE CONSTITUTION FORBIDS THEIR ENFORCEMENT.  FN3  THE
COURT SAID IN THE SAIA CASE AT 560-61: 

"THE RIGHT TO BE HEARD IS PLACED IN THE UNCONTROLLED DISCRETION OF
THE CHIEF OF POLICE.  HE STANDS ATHWART THE CHANNELS OF COMMUNICATION
AS AN OBSTRUCTION WHICH CAN BE REMOVED ONLY AFTER CRIMINAL TRIAL AND
CONVICTION AND LENGTHY APPEAL.  A MORE EFFECTIVE PREVIOUS RESTRAINT IS
DIFFICULT TO IMAGINE." 

THIS ORDINANCE IS NOT OF THAT CHARACTER.  IT CONTAINS NOTHING
COMPARABLE TO THE ABOVE-QUOTED SEC. 3 OF THE ORDINANCE IN THE SAIA
CASE.  IT IS AN EXERCISE OF THE AUTHORITY GRANTED TO THE CITY BY NEW
JERSEY "TO PREVENT DISTURBING NOISES," N.J. STAT. ANN., TIT. 40, SEC.
48-1(8), NUISANCES WELL WITHIN THE MUNICIPALITY'S POWER TO CONTROL. 
THE POLICE POWER OF A STATE EXTENDS BEYOND HEALTH, MORALS AND SAFETY,
AND COMPREHENDS THE DUTY, WITHIN CONSTITUTIONAL LIMITATIONS, TO PROTECT
THE WELL-BEING AND TRANQUILITY OF A COMMUNITY.  FN4  A STATE OR CITY
MAY PROHIBIT ACTS OR THINGS REASONABLY THOUGHT TO BRING EVIL OR HARM TO
ITS PEOPLE. 

IN THIS CASE, NEW JERSEY NECESSARILY HAS CONSTRUED THIS VERY ORDINANCE
AS APPLIED TO SOUND AMPLIFICATION.  FN5  THE SUPREME COURT SAID, 135
N.J.L. 64, 66, 50 A.2D 451, 452: 

"THE RELEVANT PROVISIONS OF THE ORDINANCE APPLY ONLY TO (1) VEHICLES
(2) CONTAINING AN INSTRUMENT IN THE NATURE OF A SOUND AMPLIFIER OR ANY
OTHER INSTRUMENT EMITTING LOUD AND RAUCOUS NOISES AND (3) SUCH VEHICLE
OPERATED OR STANDING UPON THE PUBLIC STREETS, ALLEYS OR THOROUGHFARES
OF THE CITY." 

IF THAT MEANS THAT ONLY AMPLIFIERS THAT EMIT, IN THE LANGUAGE OF THE
ORDINANCE, "LOUD AND RAUCOUS NOISES" ARE BARRED FROM THE STREETS, WE
HAVE A PROBLEM OF REGULATION.  THE DISSENTS ACCEPT THAT VIEW.  FN6  SO
DID THE APPELLANT IN HIS STATEMENT AS TO JURISDICTION AND HIS BRIEF. 
FN7 ALTHOUGH THIS COURT MUST DECIDE FOR ITSELF WHETHER FEDERAL
QUESTIONS ARE PRESENTED AND DECIDED, FN8  WE MUST ACCEPT THE STATE
COURTS' CONCLUSION AS TO THE SCOPE OF THE ORDINANCE.  FN9  WE ACCEPT
THE DETERMINATION OF NEW JERSEY THAT SEC. 4 APPLIES ONLY TO VEHICLES
WITH SOUND AMPLIFIERS EMITTING LOUD AND RAUCOUS NOISES.  COURTS ARE
INCLINED TO ADOPT THAT REASONABLE INTERPRETATION OF A STATUTE WHICH
REMOVES IT FARTHEST FROM POSSIBLE CONSTITUTIONAL INFIRMITY.  COX V. NEW
HAMPSHIRE, 312 U.S. 569, 575-76; CF. UNITED STATES V. C.I.O., 335 U.S.
106, 120.  WE NEED NOT DETERMINE WHETHER THIS ORDINANCE SO CONSTRUED IS
REGULATORY OR PROHIBITORY.  ALL REGULATORY ENACTMENTS ARE PROHIBITORY
SO FAR AS THEIR RESTRICTIONS ARE CONCERNED, AND THE PROHIBITION OF THIS
ORDINANCE AS TO A USE OF STREETS IS MERELY REGULATORY.  SOUND TRUCKS
MAY BE UTILIZED IN PLACES SUCH AS PARKS OR OTHER OPEN SPACES OFF THE
STREETS.  THE CONSTITUTIONALITY OF THE CHALLENGED ORDINANCE AS
VIOLATIVE OF APPELLANT'S RIGHT OF FREE SPEECH DOES NOT DEPEND UPON SO
NARROW AN ISSUE AS TO WHETHER ITS PROVISIONS ARE CAST IN THE WORDS OF
PROHIBITION OR REGULATION.  FN10  THE QUESTION IS WHETHER OR NOT THERE
IS A REAL ABRIDGMENT OF THE RIGHTS OF FREE SPEECH. 

OF COURSE, EVEN THE FUNDAMENTAL RIGHTS OF THE BILL OF RIGHTS ARE NOT
ABSOLUTE.  THE SAIA CASE RECOGNIZED THAT IN THIS FIELD BY STATING "THE
HOURS AND PLACE OF PUBLIC DISCUSSION CAN BE CONTROLLED."  FN11  IT WAS
SAID DECADES AGO IN AN OPINION OF THIS COURT DELIVERED BY MR. JUSTICE
HOLMES, SCHENCK V. UNITED STATES, 249 U.S. 47, 52, THAT: 

"THE MOST STRINGENT PROTECTION OF FREE SPEECH WOULD NOT PROTECT A MAN
IN FALSELY SHOUTING FIRE IN A THEATRE AND CAUSING A PANIC.  IT DOES NOT
EVEN PROTECT A MAN FROM AN INJUNCTION AGAINST UTTERING WORDS THAT MAY
HAVE ALL THE EFFECT OF FORCE." 

HECKLERS MAY BE EXPELLED FROM ASSEMBLIES AND RELIGIOUS WORSHIP MAY
NOT BE DISTURBED BY THOSE ANXIOUS TO PREACH A DOCTRINE OF ATHEISM.  THE
RIGHT TO SPEAK ONE'S MIND WOULD OFTEN BE AN EMPTY PRIVILEGE IN A PLACE
AND AT A TIME BEYOND THE PROTECTING HAND OF THE GUARDIANS OF PUBLIC
ORDER. 

WHILE THIS COURT, IN ENFORCING THE BROAD PROTECTION THE CONSTITUTION
GIVES TO THE DISSEMINATION OF IDEAS, HAS INVALIDATED AN ORDINANCE
FORBIDDING A DISTRIBUTOR OF PAMPHLETS OR HANDBILLS FROM SUMMONING
HOUSEHOLDERS TO THEIR DOORS TO RECEIVE THE DISTRIBUTOR'S WRITINGS, THIS
WAS ON THE GROUND THAT THE HOME OWNER COULD PROTECT HIMSELF FROM SUCH
INTRUSION BY AN APPROPRIATE SIGN "THAT HE IS UNWILLING TO BE
DISTURBED."  THE COURT NEVER INTIMATED THAT THE VISITOR COULD INSERT A
FOOT IN THE DOOR AND INSIST ON A HEARING.  MARTIN V. STRUTHERS, 319
U.S. 141, 143, 148.  WE DO NOT THINK THAT THE STRUTHERS CASE REQUIRES
US TO EXPAND THIS INTERDICTION OF LEGISLATION TO INCLUDE ORDINANCES
AGAINST OBTAINING AN AUDIENCE FOR THE BROADCASTER'S IDEAS BY WAY OF
SOUND TRUCKS WITH LOUD AND RAUCOUS NOISES ON CITY STREETS.  THE
UNWILLING LISTENER IS NOT LIKE THE PASSER-BY WHO MAY BE OFFERED A
PAMPHLET IN THE STREET BUT CANNOT BE MADE TO TAKE IT.  FN12  IN HIS
HOME OR ON THE STREET HE IS PRACTICALLY HELPLESS TO ESCAPE THIS
INTERFERENCE WITH HIS PRIVACY BY LOUD SPEAKERS EXCEPT THROUGH THE
PROTECTION OF THE MUNICIPALITY.    CITY STREETS ARE RECOGNIZED AS A
NORMAL PLACE FOR THE EXCHANGE OF IDEAS BY SPEECH OR PAPER.  BUT THIS
DOES NOT MEAN THE FREEDOM IS BEYOND ALL CONTROL.  WE THINK IT IS A
PERMISSIBLE EXERCISE OF LEGISLATIVE DISCRETION TO BAR SOUND TRUCKS WITH
BROADCASTS OF PUBLIC INTEREST, AMPLIFIED TO A LOUD AND RAUCOUS VOLUME,
FROM THE PUBLIC WAYS OF MUNICIPALITIES.  ON THE BUSINESS STREETS OF
CITIES LIKE TRENTON, WITH ITS MORE THAN 125,000 PEOPLE, SUCH
DISTRACTIONS WOULD BE DANGEROUS TO TRAFFIC AT ALL HOURS USEFUL FOR THE
DISSEMINATION OF INFORMATION, AND IN THE RESIDENTIAL THOROUGHFARES THE
QUIET AND TRANQUILITY SO DESIRABLE FOR CITY DWELLERS WOULD LIKEWISE BE
AT THE MERCY OF ADVOCATES OF PARTICULAR RELIGIOUS, SOCIAL OR POLITICAL
PERSUASIONS.  WE CANNOT BELIEVE THAT RIGHTS OF FREE SPEECH COMPEL A
MUNICIPALITY TO ALLOW SUCH MECHANICAL VOICE AMPLIFICATION ON ANY OF ITS
STREETS. 

THE RIGHT OF FREE SPEECH IS GUARANTEED EVERY CITIZEN THAT HE MAY
REACH THE MINDS OF WILLING LISTENERS AND TO DO SO THERE MUST BE
OPPORTUNITY TO WIN THEIR ATTENTION.  THIS IS THE PHASE OF FREEDOM OF
SPEECH THAT IS INVOLVED HERE.  WE DO NOT THINK THE TRENTON ORDINANCE
ABRIDGES THAT FREEDOM.  IT IS AN EXTRAVAGANT EXTENSION OF DUE PROCESS
TO SAY THAT BECAUSE OF IT A CITY CANNOT FORBID TALKING ON THE STREETS
THROUGH A LOUD SPEAKER IN A LOUD AND RAUCOUS TONE.  SURELY SUCH AN
ORDINANCE DOES NOT VIOLATE OUR PEOPLE'S "CONCEPT OF ORDERED LIBERTY" SO
AS TO REQUIRE FEDERAL INTERVENTION TO PROTECT A CITIZEN FROM THE ACTION
OF HIS OWN LOCAL GOVERNMENT.  CF. PALKO V. CONNECTICUT, 302 U.S. 319,
325.  OPPORTUNITY TO GAIN THE PUBLIC'S EARS BY OBJECTIONABLY AMPLIFIED
SOUND ON THE STREETS IS NO MORE ASSURED BY THE RIGHT OF FREE SPEECH
THAN IS THE UNLIMITED OPPORTUNITY TO ADDRESS GATHERINGS ON THE
STREETS.  FN13  THE PREFERRED POSITION  FN14 OF FREEDOM OF SPEECH IN A
SOCIETY THAT CHERISHES LIBERTY FOR ALL DOES NOT REQUIRE LEGISLATORS TO
BE INSENSIBLE TO CLAIMS BY CITIZENS TO COMFORT AND CONVENIENCE.  TO
ENFORCE FREEDOM OF SPEECH IN DISREGARD OF THE RIGHTS OF OTHERS WOULD BE
HARSH AND ARBITRARY IN ITSELF.  THAT MORE PEOPLE MAY BE MORE EASILY AND
CHEAPLY REACHED BY SOUND TRUCKS, PERHAPS BORROWED WITHOUT COST FROM
SOME ZEALOUS SUPPORTER, IS NOT ENOUGH TO CALL FORTH CONSTITUTIONAL
PROTECTION FOR WHAT THOSE CHARGED WITH PUBLIC WELFARE REASONABLY THINK
IS A NUISANCE WHEN EASY MEANS OF PUBLICITY ARE OPEN.  SECTION 4 OF THE
ORDINANCE BARS SOUND TRUCKS FROM BROADCASTING IN A LOUD AND RAUCOUS
MANNER ON THE STREETS.  THERE IS NO RESTRICTION UPON THE COMMUNICATION
OF IDEAS OR DISCUSSION OF ISSUES BY THE HUMAN VOICE, BY NEWSPAPERS, BY
PAMPHLETS, BY DODGERS.  WE THINK THAT THE NEED FOR REASONABLE
PROTECTION IN THE HOMES OR BUSINESS HOUSES FROM THE DISTRACTING NOISES
OF VEHICLES EQUIPPED WITH SUCH SOUND AMPLIFYING DEVICES JUSTIFIES THE
ORDINANCE.  AFFIRMED. 

FN1  SEE JUDICIAL CODE SEC. 237(A), 28 U.S.C. SEC. 344(A), NOW 28
U.S.C. SEC. 1257(2); LOVELL V. CITY OF GRIFFIN, 303 U.S. 444; NEW
ORLEANS WATER WORKS CO. V. NEW ORLEANS, 164 U.S. 471. 

FN2  ORDINANCES REGULATING OR PROHIBITING SOUND DEVICES WERE UPHELD
IN PEOPLE V. PHILLIPS, 147 N.Y. MISC. 11, 263 N.Y. SUPP. 158; MAUPIN V.
CITY OF LOUISVILLE, 284 KY. 195, 144 S.W.2D 237; HAMILTON V. CITY OF
MONTROSE, 109 COLO. 228, 124 P.2D 757. 

INJUNCTIONS HAVE ALSO DEALT WITH NUISANCES FROM THE PLAYING OF
MECHANICAL MUSIC FOR ADVERTISING PURPOSES.  WEBER V. MANN, 42 S.W.2D
492(TEX.  CT. OF CIV. APP.); STODDER V. ROSEN TALKING MACHINE CO., 241
MASS. 245, 135 N.E. 251; 247 MASS. 60, 141 N.E. 569. 

FN3  LOVELL V. CITY OF GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O., 307
U.S. 496; CANTWELL V. CONNECTICUT, 310 U.S. 296. 

FN4  CHICAGO, B. & Q.R. CO. V. DRAINAGE COMM'RS, 200 U.S. 561, 592;
NEBBIA V. NEW YORK, 291 U.S. 502, 525; QUEENSIDE HILLS REALTY CO. V.
SAXL, 328 U.S. 80, 82. 

FN5  THE COURT OF ERRORS AND APPEALS WAS COGNIZANT OF THE
DIFFICULTIES.  EVENING TIMES PRINTING CO. V. AMERICAN NEWSPAPER GUILD,
124 N.J. EQ. 71, 78, 199 A. 598, 602-603. 

FN6  135 N.J.L. 584, 52 A.2D 809: 

"COLIE, J. (FOR REVERSAL.)  I AM OF THE OPINION THAT THE JUDGMENT
UNDER REVIEW SHOULD BE REVERSED BUT I DO NOT AGREE THAT SECTION 4 OF
THE ORDINANCE IS AN UNCONSTITUTIONAL EXERCISE OF THE POLICE POWER.  THE
PRIVILEGE OF A CITIZEN TO USE THE STREETS FOR THE COMMUNICATION OF
IDEAS IS NOT ABSOLUTE BUT MUST BE EXERCISED IN SUBORDINATION TO THE
GENERAL COMFORT AND CONVENIENCE.  MOST ASSUREDLY THE PROHIBITION
AGAINST MAKING 'LOUD AND RAUCOUS' NOISES IS A REASONABLE REGULATION." 

ID., AT 585:  "THERE IS NOT A SCINTILLA OF EVIDENCE THAT THE MUSIC OR
VOICE WAS LOUD OR RAUCOUS, AND UNDER THE WORDING OF SECTION 4 SUCH
PROOF IS AN ESSENTIAL PREREQUISITE TO A FINDING OF GUILT OF A
VIOLATION." 

THE NEW JERSEY COURTS MAY HAVE CONCLUDED THAT THE NECESSITY OF SEARCH
BY THE PATROLMAN TO LOCATE THE SOUND TRUCK ON A STREET WAS SUFFICIENT
EVIDENCE OF LOUDNESS AND RAUCOUSNESS. 

135 N.J.L. 584, 52 A.2D 808, EASTWOOD, J., FOR REVERSAL, SPEAKING FOR
HIMSELF AND THREE OTHER MEMBERS, SAID, PP. 588-89:  "IT APPEARS TO US,
AND WE SO HOLD, THAT THE PRIMARY AIM OF SECTION 4 OF THE ORDINANCE,
UNDER REVIEW, IS TO PROHIBIT 'LOUD AND RAUCOUS NOISES,' AT ALL TIMES
AND IN ALL PLACES IN THE CITY OF TRENTON, EMANATING FROM SOUND TRUCKS,
LOUD SPEAKERS, SOUND AMPLIFIERS, RADIOS OR PHONOGRAPHS, EQUIPPED WITH
LOUD SPEAKERS OR SOUND AMPLIFIERS, OR OTHER SIMILAR INSTRUMENTS.  IT IS
THUS CLEAR THAT SECTION 4 OF THE ORDINANCE IS NOT REGULATORY WITHIN A
PROPER EXERCISE OF THE POLICE POWER OF THE MUNICIPALITY." 

ID., AT 590:  "WE CONCLUDE THAT SECTION 4 OF THE ORDINANCE UNDER
ATTACK REPRESENTS AN ATTEMPT BY THE MUNICIPALITY UNDER THE GUISE OF
REGULATION, TO PROHIBIT AND OUTLAW, UNDER ALL CIRCUMSTANCES AND
CONDITIONS, THE USE OF SOUND AMPLIFYING SYSTEMS." 

PERHAPS THE LAST-QUOTED PARAGRAPH ASSUMES THAT ALL SOUND TRUCKS EMIT
LOUD AND RAUCOUS NOISES. 

FN7  HE WROTE:  "SECTION 4 OF THE ORDINANCE, UNDER WHICH APPELLANT
WAS CHARGED, PROHIBITS ANY PERSON FROM USING FOR ANY PURPOSE
WHATSOEVER, A LOUD SPEAKER OR SOUND AMPLIFIER WHICH EMITS THEREFROM
'LOUD AND RAUCOUS NOISES' AND IS ATTACHED TO ANY VEHICLE OPERATED OR
STANDING UPON THE STREETS OF THE CITY OF TRENTON." 

IN THE BRIEF THIS APPEARS: 

"THIS ORDINANCE DOES NOT PURPORT TO PROHIBIT LOUD AND RAUCOUS
NOISES.  IT ATTEMPTS TO PROHIBIT SOUND DEVICES WHICH EMIT THEREFROM
LOUD AND RAUCOUS NOISES.  THIS DOES NOT VALIDATE THE ORDINANCE OR SAVE
IT.  IN ORDER TO BE A VALID REGULATION THE LAW MUST DEAL WITH THE ABUSE
AND NOT WITH THE USE OF THE THING." 

FN8  LOVELL V. CITY OF GRIFFIN, 303 U.S. 444, 450. 

FN9  SAIA V. NEW YORK, 334 U.S. 558; COX V. NEW HAMPSHIRE, 312 U.S.
569, 574; WINTERS V. NEW YORK, 333 U.S. 507, 514. 

FN10  IN THE EXERCISE OF THE POLICE POWER ACTS OR THINGS WHICH COULD
NOT BE BARRED COMPLETELY FROM USE MAY BE PROHIBITED UNDER SOME
CONDITIONS AND CIRCUMSTANCES WHEN THEY INTERFERE WITH THE RIGHTS OF
OTHERS.  COX V. NEW HAMPSHIRE, 312 U.S. 569, 574; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568; SAGE STORES CO. V. KANSAS, 323 U.S. 32, 36;
HUTCHINSON ICE CREAM CO. V. IOWA, 242 U.S. 153, 159, COMPARE 160;
POWELL V. PENNSYLVANIA, 127 U.S. 678, 682-83; MUGLER V. KANSAS, 123
U.S. 623, 657-663.  FOR EXAMPLES OF FEDERAL PROHIBITIONS, SEE CAROLENE
PRODUCTS CO. V. UNITED STATES, 323 U.S. 18, 27, THIRD; UNITED STATES V.
DARBY, 312 U.S. 100, 113, 116; KENTUCKY WHIP & COLLAR CO. V. ILLINOIS
CENTRAL R. CO., 299 U.S. 334, 348; BUTTFIELD V. STRANAHAN, 192 U.S.
470, 492-93. 

FN11  SAIA V. NEW YORK, 334 U.S. 558, 562; PRINCE V. MASSACHUSETTS,
321 U.S. 158, 166; MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 109; COX V.
NEW HAMPSHIRE, 312 U.S. 569; CANTWELL V. CONNECTICUT, 310 U.S. 296,
303; WHITNEY V. CALIFORNIA, 274 U.S. 357, 371, 373; REYNOLDS V. UNITED
STATES, 98 U.S. 145, 166. 

FN12 SEE SCHNEIDER V. STATE, 308 U.S. 147, 162. 

FN13  SCHNEIDER V. STATE, 308 U.S. 147, 160-61: 

"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. CONNECTICUT, 310 U.S. 296, 308: 

"WHEN CLEAR AND PRESENT DANGER OF RIOT, DISORDER, INTERFERENCE WITH
TRAFFIC UPON THE PUBLIC STREETS, OR OTHER IMMEDIATE THREAT TO PUBLIC
SAFETY, PEACE, OR ORDER, APPEARS, THE POWER OF THE STATE TO PREVENT OR
PUNISH IS OBVIOUS.  EQUALLY OBVIOUS IS IT THAT A STATE MAY NOT UNDULY
SUPPRESS FREE COMMUNICATION OF VIEWS, RELIGIOUS OR OTHER, UNDER THE
GUISE OF CONSERVING DESIRABLE CONDITIONS." 

FN14  THOMAS V. COLLINS, 323 U.S. 516, 527, NOTE 12, 530; MURDOCK V.
PENNSYLVANIA, 319 U.S. 105. 

MR. JUSTICE MURPHY DISSENTS. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

WISE ACCOMMODATION BETWEEN LIBERTY AND ORDER ALWAYS HAS BEEN, AND
EVER WILL BE, INDISPENSABLE FOR A DEMOCRATIC SOCIETY.  INSOFAR AS THE
CONSTITUTION COMMITS THE DUTY OF MAKING THIS ACCOMMODATION TO THIS
COURT, IT DEMANDS VIGILANT JUDICIAL SELF-RESTRAINT.  A SINGLE DECISION
BY A CLOSELY DIVIDED COURT, UNSUPPORTED BY THE CONFIRMATION OF TIME,
CANNOT CHECK THE LIVING PROCESS OF STRIKING A WISE BALANCE BETWEEN
LIBERTY AND ORDER AS NEW CASES COME HERE FOR ADJUDICATION.  TO DISPOSE
OF THIS CASE ON THE ASSUMPTION THAT THE SAIA CASE, 334 U.S. 558,
DECIDED ONLY THE OTHER DAY, WAS RIGHTLY DECIDED, WOULD BE FOR ME TO
START WITH AN UNREALITY.  WHILE I AM NOT UNAWARE OF THE CIRCUMSTANCES
THAT DIFFERENTIATE THIS CASE FROM WHAT WAS RULED IN SAIA, FURTHER
REFLECTION HAS ONLY SERVED TO REINFORCE THE DISSENTING VIEWS I
EXPRESSED IN THAT CASE.  ID. AT 562.  IN THE LIGHT OF THEM I CONCLUDE
THAT THERE IS NOTHING IN THE CONSTITUTION OF THE UNITED STATES TO BAR
NEW JERSEY FROM AUTHORIZING THE CITY OF TRENTON TO DEAL IN THE MANNER
CHOSEN BY THE CITY WITH THE AURAL AGGRESSIONS IMPLICIT IN THE USE OF
SOUND TRUCKS. 

THE OPINIONS IN THIS CASE PROMPT ME TO MAKE SOME ADDITIONAL
OBSERVATIONS.  MY BROTHER REED SPEAKS OF "THE PREFERRED POSITION OF
FREEDOM OF SPEECH," THOUGH, TO BE SURE, HE FINDS THAT THE TRENTON
ORDINANCE DOES NOT DISREGARD IT.  THIS IS A PHRASE THAT HAS
UNCRITICALLY CREPT INTO SOME RECENT OPINIONS OF THIS COURT.  I DEEM IT
A MISCHIEVOUS PHRASE, IF IT CARRIES THE THOUGHT, WHICH IT MAY SUBTLY
IMPLY, THAT ANY LAW TOUCHING COMMUNICATION IS INFECTED WITH PRESUMPTIVE
INVALIDITY.  IT IS NOT THE FIRST TIME IN THE HISTORY OF CONSTITUTIONAL
ADJUDICATION THAT SUCH A DOCTRINAIRE ATTITUDE HAS DISREGARDED THE
ADMONITION MOST TO BE OBSERVED IN EXERCISING THE COURT'S REVIEWING
POWER OVER LEGISLATION, "THAT IT IS A CONSTITUTION WE ARE EXPOUNDING,"
M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 407.  I SAY THE PHRASE IS
MISCHIEVOUS BECAUSE IT RADIATES A CONSTITUTIONAL DOCTRINE WITHOUT
AVOWING IT.  CLARITY AND CANDOR IN THESE MATTERS, SO AS TO AVOID
GLIDING UNWITTINGLY INTO ERROR, MAKE IT APPROPRIATE TO TRACE THE
HISTORY OF THE PHRASE "PREFERRED POSITION."  THE FOLLOWING IS A
CHRONOLOGICAL ACCOUNT OF THE EVOLUTION OF TALK ABOUT "PREFERRED
POSITION" EXCEPT WHERE THE THREAD OF DERIVATION IS PLAIN ENOUGH TO BE
INDICATED. 

1.  HERNDON V. LOWRY, 301 U.S. 242, 258:  "THE POWER OF A STATE TO
ABRIDGE FREEDOM OF SPEECH AND OF ASSEMBLY IS THE EXCEPTION RATHER THAN
THE RULE AND THE PENALIZING EVEN OF UTTERANCES OF A DEFINED CHARACTER
MUST FIND ITS JUSTIFICATION IN A REASONABLE APPREHENSION OF DANGER TO
ORGANIZED GOVERNMENT.  THE JUDGMENT OF THE LEGISLATURE IS NOT
UNFETTERED.  THE LIMITATION UPON INDIVIDUAL LIBERTY MUST HAVE
APPROPRIATE RELATION TO THE SAFETY OF THE STATE." 

2.  UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 152, N. 4,
SET FORTH IN THE MARGIN.  FN1  A FOOTNOTE HARDLY SEEMS TO BE AN
APPROPRIATE WAY OF ANNOUNCING A NEW CONSTITUTIONAL DOCTRINE, AND THE
CAROLENE FOOTNOTE DID NOT PURPORT TO ANNOUNCE ANY NEW DOCTRINE;
INCIDENTALLY, IT DID NOT HAVE THE CONCURRENCE OF A MAJORITY OF THE
COURT.  IT MERELY REPHRASED AND EXPANDED WHAT WAS SAID IN HERNDON V.
LOWRY, SUPRA, AND ELSEWHERE.  IT CERTAINLY DID NOT ASSERT A PRESUMPTION
OF INVALIDITY AGAINST ALL LEGISLATION TOUCHING MATTERS RELATED TO
LIBERTIES PROTECTED BY THE BILL OF RIGHTS AND THE FOURTEENTH
AMENDMENT.  IT MERELY STIRRED INQUIRY WHETHER AS TO SUCH MATTERS THERE
MAY BE "NARROWER SCOPE FOR OPERATION OF THE PRESUMPTION OF
CONSTITUTIONALITY" AND LEGISLATION REGARDING THEM IS THEREFORE "TO BE
SUBJECTED TO MORE EXACTING JUDICIAL SCRUTINY." 

THE CAROLENE FOOTNOTE IS CITED IN THORNHILL V. ALABAMA, 310 U.S. 88,
95, IN AN OPINION WHICH THUS PROCEEDS:  "MERE LEGISLATIVE PREFERENCE
FOR ONE RATHER THAN ANOTHER MEANS FOR COMBATTING SUBSTANTIVE EVILS,
THEREFORE, MAY WELL PROVE AN INADEQUATE FOUNDATION ON WHICH TO REST
REGULATIONS WHICH ARE AIMED AT OR IN THEIR OPERATION DIMINISH THE
EFFECTIVE EXERCISE OF RIGHTS SO NECESSARY TO THE MAINTENANCE OF
DEMOCRATIC INSTITUTIONS.  IT IS IMPERATIVE THAT, WHEN THE EFFECTIVE
EXERCISE OF THESE RIGHTS IS CLAIMED TO BE ABRIDGED, THE COURTS SHOULD
'WEIGH THE CIRCUMSTANCES' AND 'APPRAISE THE SUBSTANTIALITY OF THE
REASONS ADVANCED' IN SUPPORT OF THE CHALLENGED REGULATIONS.  SCHNEIDER
V. STATE  ...  "    IT IS CITED AGAIN IN THE OPINION OF THE COURT IN
A.F. OF L. V. SWING, 312 U.S. 321, 325, TOGETHER WITH THE HERNDON AND
SCHNEIDER CASES, IN SUPPORT OF THE STATEMENT THAT THE "RIGHT TO FREE
DISCUSSION" "IS TO BE GUARDED WITH A JEALOUS EYE."    THE CAROLENE
FOOTNOTE WAS LAST CITED IN AN OPINION OF THIS COURT IN THE PASSAGE OF
THOMAS V. COLLINS, 323 U.S. 516, 530, QUOTED BELOW. 

(3)  SCHNEIDER V. STATE, 308 U.S. 147, 161:  "IN EVERY CASE,
THEREFORE, WHERE LEGISLATIVE ABRIDGMENT OF THE RIGHTS (FREEDOM OF
SPEECH AND OF THE PRESS) IS ASSERTED, THE COURTS SHOULD BE ASTUTE TO
EXAMINE THE EFFECT OF THE CHALLENGED LEGISLATION.  MERE LEGISLATIVE
PREFERENCES OR BELIEFS RESPECTING MATTERS OF PUBLIC CONVENIENCE MAY
WELL SUPPORT REGULATION DIRECTED AT OTHER PERSONAL ACTIVITIES, BUT BE
INSUFFICIENT TO JUSTIFY SUCH AS DIMINISHES THE EXERCISE OF RIGHTS SO
VITAL TO THE MAINTENANCE OF DEMOCRATIC INSTITUTIONS.  AND SO, AS CASES
ARISE, THE DELICATE AND DIFFICULT TASK FALLS UPON THE COURTS TO WEIGH
THE CIRCUMSTANCES AND TO APPRAISE THE SUBSTANTIALITY OF THE REASONS
ADVANCED IN SUPPORT OF THE REGULATION OF THE FREE ENJOYMENT OF THE
RIGHTS." 

(4)  BRIDGES V. CALIFORNIA, 314 U.S. 252, 262-63:  "MOREOVER, THE
LIKELIHOOD, HOWEVER GREAT, THAT A SUBSTANTIVE EVIL WILL RESULT CANNOT
ALONE JUSTIFY A RESTRICTION UPON FREEDOM OF SPEECH OR THE PRESS.  THE
EVIL ITSELF MUST BE 'SUBSTANTIAL,' BRANDEIS, J., CONCURRING IN WHITNEY
V. CALIFORNIA, SUPRA, (274 U.S. 357) 374; IT MUST BE 'SERIOUS,' ID.
376.  AND EVEN THE EXPRESSION OF 'LEGISLATIVE PREFERENCES OR BELIEFS'
CANNOT TRANSFORM MINOR MATTERS OF PUBLIC INCONVENIENCE OR ANNOYANCE
INTO SUBSTANTIVE EVILS OF SUFFICIENT WEIGHT TO WARRANT THE CURTAILMENT
OF LIBERTY OF EXPRESSION.  SCHNEIDER V. STATE  ... 

"WHAT FINALLY EMERGES FROM THE 'CLEAR AND PRESENT DANGER' CASES IS A
WORKING PRINCIPLE THAT THE SUBSTANTIVE EVIL MUST BE EXTREMELY SERIOUS
AND THE DEGREE OF IMMINENCE EXTREMELY HIGH BEFORE UTTERANCES CAN BE
PUNISHED." 

THIS FORMULATION OF THE "CLEAR-AND-PRESENT-DANGER" TEST WAS QUOTED
AND ENDORSED IN PENNEKAMP V. FLORIDA, 328 U.S. 331, 334. 

(5)  A NUMBER OF JEHOVAH'S WITNESSES CASES REFER TO THE FREEDOMS
SPECIFIED BY THE FIRST AMENDMENT AS IN A "PREFERRED POSITION."  THE
PHRASE WAS APPARENTLY FIRST USED IN THE DISSENT OF CHIEF JUSTICE STONE
IN JONES V. OPELIKA, 316 U.S. 584, 600, 608.  IT REAPPEARS IN MURDOCK
V. PENNSYLVANIA, 319 U.S. 105, 115; PRINCE V. MASSACHUSETTS, 321 U.S.
158, 164; FOLLETT V. MCCORMICK, 321 U.S. 573, 575; MARSH V. ALABAMA,
326 U.S. 501, 509; SAIA V. NEW YORK, 334 U.S. 558, 562. 

(6)  WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S.
624, 639:  "THE TEST OF LEGISLATION WHICH COLLIDES WITH THE FOURTEENTH
AMENDMENT, BECAUSE IT ALSO COLLIDES WITH THE PRINCIPLES OF THE FIRST,
IS MUCH MORE DEFINITE THAN THE TEST WHEN ONLY THE FOURTEENTH IS
INVOLVED.  MUCH OF THE VAGUENESS OF THE DUE PROCESS CLAUSE DISAPPEARS
WHEN THE SPECIFIC PROHIBITIONS OF THE FIRST BECOME ITS STANDARD.  THE
RIGHT OF A STATE TO REGULATE, FOR EXAMPLE, A PUBLIC UTILITY MAY WELL
INCLUDE, SO FAR AS THE DUE PROCESS TEST IS CONCERNED, POWER TO IMPOSE
ALL OF THE RESTRICTIONS WHICH A LEGISLATURE MAY HAVE A 'RATIONAL BASIS'
FOR ADOPTING.  BUT FREEDOMS OF SPEECH AND OF PRESS, OF ASSEMBLY, AND OF
WORSHIP MAY NOT BE INFRINGED ON SUCH SLENDER GROUNDS.  THEY ARE
SUSCEPTIBLE OF RESTRICTION ONLY TO PREVENT GRAVE AND IMMEDIATE DANGER
TO INTERESTS WHICH THE STATE MAY LAWFULLY PROTECT." 

(7)  THOMAS V. COLLINS, 323 U.S. 516, 530:  "FOR THESE REASONS ANY
ATTEMPT TO RESTRICT THOSE LIBERTIES MUST BE JUSTIFIED BY CLEAR PUBLIC
INTEREST, THREATENED NOT DOUBTFULLY OR REMOTELY, BUT BY CLEAR AND
PRESENT DANGER.  THE RATIONAL CONNECTION BETWEEN THE REMEDY PROVIDED
AND THE EVIL TO BE CURBED, WHICH IN OTHER CONTEXTS MIGHT SUPPORT
LEGISLATION AGAINST ATTACK ON DUE PROCESS GROUNDS, WILL NOT SUFFICE. 
THESE RIGHTS REST ON FIRMER FOUNDATION.  ACCORDINGLY, WHATEVER OCCASION
WOULD RESTRAIN ORDERLY DISCUSSION AND PERSUASION, AT APPROPRIATE TIME
AND PLACE, MUST HAVE CLEAR SUPPORT IN PUBLIC DANGER, ACTUAL OR
IMPENDING.  ONLY THE GRAVEST ABUSES, ENDANGERING PARAMOUNT INTERESTS,
GIVE OCCASION FOR PERMISSIBLE LIMITATION."  THIS IS PERHAPS THE
STRONGEST LANGUAGE DEALING WITH THE CONSTITUTIONAL ASPECT OF
LEGISLATION TOUCHING UTTERANCE.  BUT IT WAS THE OPINION OF ONLY FOUR
MEMBERS OF THE COURT, SINCE MR. JUSTICE JACKSON, IN A SEPARATE
CONCURRING OPINION, REFERRED TO THE OPINION OF MR. JUSTICE RUTLEDGE
ONLY TO SAY THAT HE AGREED THAT THE CASE FELL INTO "THE CATEGORY OF A
PUBLIC SPEECH, RATHER THAN THAT OF PRACTICING A VOCATION AS
SOLICITOR."  ID. AT 548. 

IN SHORT, THE CLAIM THAT ANY LEGISLATION IS PRESUMPTIVELY
UNCONSTITUTIONAL WHICH TOUCHES THE FIELD OF THE FIRST AMENDMENT AND THE
FOURTEENTH AMENDMENT, INSOFAR AS THE LATTER'S CONCEPT OF "LIBERTY"
CONTAINS WHAT IS SPECIFICALLY PROTECTED BY THE FIRST, HAS NEVER
COMMENDED ITSELF TO A MAJORITY OF THIS COURT. 

BEHIND THE NOTION SOUGHT TO BE EXPRESSED BY THE FORMULA AS TO "THE
PREFERRED POSITION OF FREEDOM OF SPEECH" LIES A RELEVANT CONSIDERATION
IN DETERMINING WHETHER AN ENACTMENT RELATING TO THE LIBERTIES PROTECTED
BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT IS VIOLATIVE OF
IT.  IN LAW ALSO, DOCTRINE IS ILLUMINATED BY HISTORY.  THE IDEAS NOW
GOVERNING THE CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH DERIVE
ESSENTIALLY FROM THE OPINIONS OF MR. JUSTICE HOLMES. 

THE PHILOSOPHY OF HIS OPINIONS ON THAT SUBJECT AROSE FROM A DEEP
AWARENESS OF THE EXTENT TO WHICH SOCIOLOGICAL CONCLUSIONS ARE
CONDITIONED BY TIME AND CIRCUMSTANCE.  BECAUSE OF THIS AWARENESS MR.
JUSTICE HOLMES SELDOM FELT JUSTIFIED IN OPPOSING HIS OWN OPINION TO
ECONOMIC VIEWS WHICH THE LEGISLATURE EMBODIED IN LAW.  BUT SINCE HE
ALSO REALIZED THAT THE PROGRESS OF CIVILIZATION IS TO A CONSIDERABLE
EXTENT THE DISPLACEMENT OF ERROR WHICH ONCE HELD SWAY AS OFFICIAL TRUTH
BY BELIEFS WHICH IN TURN HAVE YIELDED TO OTHER BELIEFS, FOR HIM THE
RIGHT TO SEARCH FOR TRUTH WAS OF A DIFFERENT ORDER THAN SOME TRANSIENT
ECONOMIC DOGMA.  AND WITHOUT FREEDOM OF EXPRESSION, THOUGHT BECOMES
CHECKED AND ATROPHIED.  THEREFORE, IN CONSIDERING WHAT INTERESTS ARE SO
FUNDAMENTAL AS TO BE ENSHRINED IN THE DUE PROCESS CLAUSE, THOSE
LIBERTIES OF THE INDIVIDUAL WHICH HISTORY HAS ATTESTED AS THE
INDISPENSABLE CONDITIONS OF AN OPEN AS AGAINST A CLOSED SOCIETY COME TO
THIS COURT WITH A MOMENTUM FOR RESPECT LACKING WHEN APPEAL IS MADE TO
LIBERTIES WHICH DERIVE MERELY FROM SHIFTING ECONOMIC ARRANGEMENTS. 
ACCORDINGLY, MR. JUSTICE HOLMES WAS FAR MORE READY TO FIND LEGISLATIVE
INVASION WHERE FREE INQUIRY WAS INVOLVED THAN IN THE DEBATABLE AREA OF
ECONOMICS.  SEE MY MR. JUSTICE HOLMES AND THE SUPREME COURT, 58 ET
SEQ. 

THE OBJECTION TO SUMMARIZING THIS LINE OF THOUGHT BY THE PHRASE "THE
PREFERRED POSITION OF FREEDOM OF SPEECH" IS THAT IT EXPRESSES A
COMPLICATED PROCESS OF CONSTITUTIONAL ADJUDICATION BY A DECEPTIVE
FORMULA.  AND IT WAS MR. JUSTICE HOLMES WHO ADMONISHED US THAT "TO REST
UPON A FORMULA IS A SLUMBER THAT, PROLONGED, MEANS DEATH."  COLLECTED
LEGAL PAPERS, 306.  SUCH A FORMULA MAKES FOR MECHANICAL JURISPRUDENCE. 

SOME OF THE ARGUMENTS MADE IN THIS CASE STRIKINGLY ILLUSTRATE HOW
EASY IT IS TO FALL INTO THE WAYS OF MECHANICAL JURISPRUDENCE THROUGH
THE USE OF OVERSIMPLIFIED FORMULAS.  IT IS ARGUED THAT THE CONSTITUTION
PROTECTS FREEDOM OF SPEECH:  FREEDOM OF SPEECH MEANS THE RIGHT TO
COMMUNICATE, WHATEVER THE PHYSICAL MEANS FOR SO DOING; SOUND TRUCKS ARE
ONE FORM OF COMMUNICATION; ERGO THAT FORM IS ENTITLED TO THE SAME
PROTECTION AS ANY OTHER MEANS OF COMMUNICATION, WHETHER BY TONGUE OR
PEN.  SUCH STERILE ARGUMENTATION TREATS SOCIETY AS THOUGH IT CONSISTED
OF BLOODLESS CATEGORIES.  THE VARIOUS FORMS OF MODERN SOCALLED "MASS
COMMUNICATIONS" RAISE ISSUES THAT WERE NOT IMPLIED IN THE MEANS OF
COMMUNICATION KNOWN OR CONTEMPLATED BY FRANKLIN AND JEFFERSON AND
MADISON.  CF. ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1.  MOVIES
HAVE CREATED PROBLEMS NOT PRESENTED BY THE CIRCULATION OF BOOKS,
PAMPHLETS, OR NEWSPAPERS, AND SO THE MOVIES HAVE BEEN CONSTITUTIONALLY
REGULATED.  MUTUAL FILM CORPORATION V. INDUSTRIAL COMMISSION, 236 U.S.
230.  BROADCASTING IN TURN HAS PRODUCED ITS BROOD OF COMPLICATED
PROBLEMS HARDLY TO BE SOLVED BY AN EASY FORMULA ABOUT THE PREFERRED
POSITION OF FREE SPEECH.  SEE NATIONAL BROADCASTING CO. V. UNITED
STATES, 319 U.S. 190. 

ONLY A DISREGARD OF VITAL DIFFERENCES BETWEEN NATURAL SPEECH, EVEN OF
THE LOUDEST SPELLBINDERS, AND THE NOISE OF SOUND TRUCKS WOULD GIVE
SOUND TRUCKS THE CONSTITUTIONAL RIGHTS ACCORDED TO THE UNAIDED HUMAN
VOICE.  NOR IS IT FOR THIS COURT TO DEVISE THE TERMS ON WHICH SOUND
TRUCKS SHOULD BE ALLOWED TO OPERATE, IF AT ALL.  THESE ARE MATTERS FOR
THE LEGISLATIVE JUDGMENT CONTROLLED BY PUBLIC OPINION.  SO LONG AS A
LEGISLATURE DOES NOT PRESCRIBE WHAT IDEAS MAY BE NOISILY EXPRESSED AND
WHAT MAY NOT BE, NOR DISCRIMINATE AMONG THOSE WHO WOULD MAKE INROADS
UPON THE PUBLIC PEACE, IT IS NOT FOR US TO SUPERVISE THE LIMITS THE
LEGISLATURE MAY IMPOSE IN SAFEGUARDING THE STEADILY NARROWING
OPPORTUNITIES FOR SERENITY AND REFLECTION.  WITHOUT SUCH OPPORTUNITIES
FREEDOM OF THOUGHT BECOMES A MOCKING PHRASE, AND WITHOUT FREEDOM OF
THOUGHT THERE CAN BE NO FREE SOCIETY. 

FN1  "THERE MAY BE NARROWER SCOPE FOR OPERATION OF THE PRESUMPTION OF
CONSTITUTIONALITY WHEN LEGISLATION APPEARS ON ITS FACE TO BE WITHIN A
SPECIFIC PROHIBITION OF THE CONSTITUTION, SUCH AS THOSE OF THE FIRST
TEN AMENDMENTS, WHICH ARE DEEMED EQUALLY SPECIFIC WHEN HELD TO BE
EMBRACED WITHIN THE FOURTEENTH.  SEE STROMBERG V. CALIFORNIA, 283 U.S.
359, 369-370; LOVELL V. GRIFFIN, 303 U.S. 444, 452. 

"IT IS UNNECESSARY TO CONSIDER NOW WHETHER LEGISLATION WHICH
RESTRICTS THOSE POLITICAL PROCESSES WHICH CAN ORDINARILY BE EXPECTED TO
BRING ABOUT REPEAL OF UNDESIRABLE LEGISLATION, IS TO BE SUBJECTED TO
MORE EXACTING JUDICIAL SCRUTINY UNDER THE GENERAL PROHIBITIONS OF THE
FOURTEENTH AMENDMENT THAN ARE MOST OTHER TYPES OF LEGISLATION.  ON
RESTRICTIONS UPON THE RIGHT TO VOTE, SEE NIXON V. HERNDON, 273 U.S.
536; NIXON V. CONDON, 286 U.S. 73; ON RESTRAINTS UPON THE DISSEMINATION
OF INFORMATION, SEE NEAR V. MINNESOTA EX REL. OLSON, 283 U.S. 697, 713
714, 718-720, 722; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; LOVELL
V. GRIFFIN, SUPRA; ON INTERFERENCES WITH POLITICAL ORGANIZATIONS, SEE
STROMBERG V. CALIFORNIA, SUPRA, 369; FISKE V. KANSAS, 274 U.S. 380;
WHITNEY V. CALIFORNIA, 274 U.S. 357, 373-378; HERNDON V. LOWRY, 301
U.S. 242; AND SEE HOLMES, J., IN GITLOW V. NEW YORK, 268 U.S. 652, 673;
AS TO PROHIBITION OF PEACEABLE ASSEMBLY, SEE DE JONGE V. OREGON, 299
U.S. 353, 365. 

"NOR NEED WE ENQUIRE WHETHER SIMILAR CONSIDERATIONS ENTER INTO THE
REVIEW OF STATUTES DIRECTED AT PARTICULAR RELIGIOUS, PIERCE V. SOCIETY
OF SISTERS, 268 U.S. 510, OR NATIONAL, MEYER V. NEBRASKA, 262 U.S. 390;
BARTELS V. IOWA, 262 U.S. 404; FARRINGTON V. TOKUSHIGE, 273 U.S. 284,
OR RACIAL MINORITIES, NIXON V. HERNDON, SUPRA; NIXON V. CONDON, SUPRA:
WHETHER PREJUDICE AGAINST DISCRETE AND INSULAR MINORITIES MAY BE A
SPECIAL CONDITION, WHICH TENDS SERIOUSLY TO CURTAIL THE OPERATION OF
THOSE POLITICAL PROCESSES ORDINARILY TO BE RELIED UPON TO PROTECT
MINORITIES, AND WHICH MAY CALL FOR A CORRESPONDINGLY MORE SEARCHING
JUDICIAL INQUIRY.  COMPARE MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 428;
SOUTH CAROLINA V. BARNWELL BROS., 303 U.S. 177, 184, N. 2, AND CASES
CITED." 

MR. JUSTICE JACKSON, CONCURRING. 

I JOIN THE JUDGMENT SUSTAINING THE TRENTON ORDINANCE BECAUSE I
BELIEVE THAT OPERATION OF MECHANICAL SOUNDAMPLIFYING DEVICES CONFLICTS
WITH QUIET ENJOYMENT OF HOME AND PARK AND WITH SAFE AND LEGITIMATE USE
OF STREET AND MARKET PLACE, AND THAT IT IS CONSTITUTIONALLY SUBJECT TO
REGULATION OR PROHIBITION BY THE STATE OR MUNICIPAL AUTHORITY.  NO
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY
REASON OF INFRINGEMENT OF FREE SPEECH ARISES UNLESS SUCH REGULATION OR
PROHIBITION UNDERTAKES TO CENSOR THE CONTENTS OF THE BROADCASTING. 
FREEDOM OF SPEECH FOR KOVACS DOES NOT, IN MY VIEW, INCLUDE FREEDOM TO
USE SOUND AMPLIFIERS TO DROWN OUT THE NATURAL SPEECH OF OTHERS. 

I DO NOT AGREE THAT, IF WE SUSTAIN REGULATIONS OR PROHIBITIONS OF
SOUND TRUCKS, THEY MUST THEREFORE BE VALID IF APPLIED TO OTHER METHODS
OF "COMMUNICATION OF IDEAS."  THE MOVING PICTURE SCREEN, THE RADIO, THE
NEWSPAPER, THE HANDBILL, THE SOUND TRUCK AND THE STREET CORNER ORATOR
HAVE DIFFERING NATURES, VALUES, ABUSES AND DANGERS.  EACH, IN MY VIEW,
IS A LAW UNTO ITSELF, AND ALL WE ARE DEALING WITH NOW IS THE SOUND
TRUCK. 

BUT I AGREE WITH MR. JUSTICE BLACK THAT THIS DECISION IS A
REPUDIATION OF THAT IN SAIA V. NEW YORK, 334 U.S. 558.  LIKE HIM, I AM
UNABLE TO FIND ANYTHING IN THIS RECORD TO WARRANT A DISTINCTION BECAUSE
OF "LOUD AND RAUCOUS" TONES OF THIS MACHINE.  THE SAIA DECISION STRUCK
DOWN A MORE MODERATE EXERCISE OF THE STATE'S POLICE POWER THAN THE ONE
NOW SUSTAINED.  TRENTON, AS THE ORDINANCE READS TO ME, UNCONDITIONALLY
BANS ALL SOUND TRUCKS FROM THE CITY STREETS.  LOCKPORT RELAXED ITS
PROHIBITION WITH A PROVISO TO ALLOW THEIR USE, EVEN IN AREAS SET ASIDE
FOR PUBLIC RECREATION, WHEN AND WHERE THE CHIEF OF POLICE SAW NO
OBJECTION.  COMPARISON OF THIS OUR 1949 DECISION WITH OUR 1948
DECISION, I THINK, WILL PRETTY HOPELESSLY CONFUSE MUNICIPAL AUTHORITIES
AS TO WHAT THEY MAY OR MAY NOT DO.    I CONCUR IN THE PRESENT RESULT
ONLY FOR THE REASONS STATED IN DISSENT IN SAIA V. NEW YORK, 334 U.S.
558, 566. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING. 

THE QUESTION IN THIS CASE IS NOT WHETHER APPELLANT MAY
CONSTITUTIONALLY BE CONVICTED OF OPERATING A SOUND TRUCK THAT EMITS
"LOUD AND RAUCOUS NOISES."  THE APPELLANT WAS NEITHER CHARGED WITH NOR
CONVICTED OF OPERATING A SOUND TRUCK THAT EMITTED "LOUD AND RAUCOUS
NOISES."  THE CHARGE AGAINST HIM IN THE POLICE COURT WAS THAT HE
VIOLATED THE CITY ORDINANCE "IN THAT HE DID, ON SOUTH STOCKTON STREET,
IN SAID CITY, PLAY, USE AND OPERATE A DEVICE KNOWN AS A SOUND TRUCK." 
THE RECORD REFLECTS NOT EVEN A SHADOW OF EVIDENCE TO PROVE THAT THE
NOISE WAS EITHER "LOUD OR RAUCOUS," UNLESS THESE WORDS OF THE ORDINANCE
REFER TO ANY NOISE COMING FROM AN AMPLIFIER, WHATEVER ITS VOLUME OR
TONE. 

AFTER APPELLANT'S CONVICTION IN THE POLICE COURT, THE CASE WAS TAKEN
TO THE SUPREME COURT OF NEW JERSEY FOR REVIEW.  THAT COURT, COMPOSED OF
THREE JUDGES, STATED WITH REFERENCE TO THE ORDINANCE AND CHARGE:  "IN
SIMPLE, UNAMBIGUOUS LANGUAGE IT PROHIBITS THE USE UPON THE PUBLIC
STREETS OF ANY DEVICE KNOWN AS A SOUND TRUCK, LOUD SPEAKER OR SOUND
AMPLIFIER.  THIS IS THE ONLY CHARGE MADE AGAINST THE DEFENDANT IN THE
COMPLAINT."  KOVACS V. COOPER, 135 N.J.L. 64, 69, 50 A.2D 451, 453
454.  THAT THIS COURT CONSTRUED THE ORDINANCE AS AN ABSOLUTE
PROHIBITION OF ALL AMPLIFIERS ON ANY PUBLIC STREET AT ANY TIME AND
WITHOUT REGARD TO VOLUME OF SOUND IS EMPHASIZED BY ITS FURTHER
STATEMENT THAT "THE ORDINANCE LEAVES UNTOUCHED THE RIGHT OF THE
PROSECUTOR TO EXPRESS HIS VIEWS ORALLY WITHOUT THE AID OF AN
AMPLIFIER."  ID. AT 66.  THUS THE NEW JERSEY SUPREME COURT AFFIRMED THE
CONVICTION ON THE GROUND THAT THE APPELLANT WAS SHOWN GUILTY OF THE
ONLY OFFENSE OF WHICH HE WAS CHARGED - SPEAKING THROUGH AN AMPLIFIER ON
A PUBLIC STREET.  IF AS SOME MEMBERS OF THIS COURT NOW ASSUME, HE WAS
ACTUALLY CONVICTED FOR OPERATING A MACHINE THAT EMITTED "LOUD AND
RAUCOUS NOISES," THEN HE WAS CONVICTED ON A CHARGE FOR WHICH HE WAS
NEVER TRIED.  "IT IS AS MUCH A VIOLATION OF DUE PROCESS TO SEND AN
ACCUSED TO PRISON FOLLOWING CONVICTION OF A CHARGE ON WHICH HE WAS
NEVER TRIED AS IT WOULD BE TO CONVICT HIM UPON A CHARGE THAT WAS NEVER
MADE."  COLE V. ARKANSAS, 333 U.S. 196, 201. 

FURTHERMORE, WHEN THE CONVICTION WAS LATER AFFIRMED IN THE NEW JERSEY
COURT OF ERRORS AND APPEALS BY AN EQUALLY DIVIDED COURT, NO ONE OF THAT
COURT'S JUDGES WHO VOTED TO AFFIRM EXPRESSED ANY DOUBT AS TO THE
CORRECTNESS OF THE NEW JERSEY SUPREME COURT'S INTERPRETATION; INDEED
THOSE JUDGES WROTE NO OPINION AT ALL.  ONE OF THE SIX WHO VOTED TO
REVERSE DID BASE HIS JUDGMENT ON THE FACT THAT THERE WAS NOT "A
SCINTILLA OF EVIDENCE THAT THE MUSIC OR VOICE WAS LOUD OR RAUCOUS" AND
THAT UNDER THE WORDING OF THE ORDINANCE SUCH PROOF WAS ESSENTIAL. 
KOVACS V. COOPER, 135 N.J.L. 584, 585, 52 A.2D 806, 809.  IN CONSTRUING
THE STATUTE AS REQUIRING A PROOF OF LOUD AND RAUCOUS NOISES, THE
DISSENTING JUDGE MADE THE INITIAL MISTAKE OF THE MAJORITY OF THIS
COURT, BUT HE CONCEDED THAT UNDER THIS CONSTRUCTION OF THE STATUTE
THERE WAS A FATAL ABSENCE OF PROOF TO CONVICT.  THE OTHER FIVE JUDGES
WHO WERE FOR REVERSAL CONCLUDED THAT THE ORDINANCE REPRESENTED "AN
ATTEMPT BY THE MUNICIPALITY UNDER THE GUISE OF REGULATION, TO PROHIBIT
AND OUTLAW, UNDER ALL CIRCUMSTANCES AND CONDITIONS, THE USE OF SOUND
AMPLIFYING SYSTEMS."  KOVACS V. COOPER, SUPRA AT 590. 

IT THUS APPEARS THAT THE APPELLANT WAS CHARGED AND CONVICTED BY
INTERPRETING THE ORDINANCE AS AN ABSOLUTE PROHIBITION AGAINST THE USE
OF SOUND AMPLIFYING DEVICES.  THE NEW JERSEY SUPREME COURT AFFIRMED
ONLY ON THAT INTERPRETATION OF THE ORDINANCE.  THERE IS NO INDICATION
WHATEVER THAT THERE WAS A DIFFERENT VIEW ENTERTAINED BY THE SIX JUDGES
OF THE COURT OF ERRORS AND APPEALS WHO AFFIRMED THE CONVICTION.  AND IT
STRAINS THE IMAGINATION TO SAY THAT THE ORDINANCE ITSELF WOULD WARRANT
ANY OTHER INTERPRETATION. 

NEVERTHELESS, IN THIS COURT THE REQUISITE MAJORITY FOR AFFIRMANCE OF
APPELLANT'S CONVICTION IS COMPOSED IN PART OF JUSTICES WHO GIVE THE NEW
JERSEY ORDINANCE A CONSTRUCTION DIFFERENT FROM THAT GIVEN IT BY THE
STATE COURTS.  THAT IS NOT ALL.  AFFIRMANCE HERE MEANS THAT THE
APPELLANT WILL BE PUNISHED FOR AN OFFENSE WITH WHICH HE WAS NOT
CHARGED, TO PROVE WHICH NO EVIDENCE WAS OFFERED, AND OF WHICH HE WAS
NOT CONVICTED, ACCORDING TO THE ONLY NEW JERSEY COURT WHICH AFFIRMED
WITH OPINION.  AT THE LAST TERM OF COURT WE HELD THAT THE ARKANSAS
SUPREME COURT HAD DENIED AN APPELLANT DUE PROCESS BECAUSE IT HAD FAILED
TO APPRAISE THE VALIDITY OF A CONVICTION "ON CONSIDERATION OF THE CASE
AS IT WAS TRIED AND AS THE ISSUES WERE DETERMINED IN THE TRIAL COURT." 
COLE V. ARKANSAS, SUPRA AT 202.  I AM UNABLE TO DISTINGUISH THE ACTION
TAKEN BY THIS COURT TODAY FROM THE ACTION OF THE ARKANSAS SUPREME COURT
WHICH WE DECLARED DENIED A DEFENDANT DUE PROCESS OF LAW. 

THE NEW JERSEY ORDINANCE IS ON ITS FACE, AND AS CONSTRUED AND APPLIED
IN THIS CASE BY THAT STATE'S COURTS, AN ABSOLUTE AND UNQUALIFIED
PROHIBITION OF AMPLIFYING DEVICES ON ANY OF TRENTON'S STREETS AT ANY
TIME, AT ANY PLACE, FOR ANY PURPOSE, AND WITHOUT REGARD TO HOW NOISY
THEY MAY BE. 

IN SAIA V. NEW YORK, 334 U.S. 558, WE HAD BEFORE US AN ORDINANCE OF
THE CITY OF LOCKPORT, NEW YORK, WHICH FORBADE THE USE OF SOUND
AMPLIFICATION DEVICES EXCEPT WITH PERMISSION OF THE CHIEF OF POLICE. 
THE ORDINANCE WAS APPLIED TO KEEP A MINISTER FROM USING AN AMPLIFIER
WHILE PREACHING IN A PUBLIC PARK.  WE HELD THAT THE ORDINANCE, AIMED AT
THE USE OF AN AMPLIFYING DEVICE, INVADED THE AREA OF FREE SPEECH
GUARANTEED THE PEOPLE BY THE FIRST AND FOURTEENTH AMENDMENTS.  THE
ORDINANCE, SO WE DECIDED, AMOUNTED TO CENSORSHIP IN ITS BALDEST FORM. 
AND OUR CONCLUSION RESTED ON THE FACT THAT THE CHIEF OF POLICE WAS
GIVEN ARBITRARY POWER TO PREVENT THE USE OF SPEECH AMPLIFYING DEVICES
AT ALL TIMES AND PLACES IN THE CITY WITHOUT REGARD TO THE VOLUME OF THE
SOUND.  WE POINTED OUT THE INDISPENSABLE FUNCTION PERFORMED BY LOUD
SPEAKERS IN MODERN PUBLIC SPEAKING.  WE THEN PLACED USE OF LOUD
SPEAKERS IN PUBLIC STREETS AND PARKS ON THE SAME CONSTITUTIONAL LEVEL
AS FREEDOM TO SPEAK ON STREETS WITHOUT SUCH DEVICES, FREEDOM TO SPEAK
OVER RADIO, AND FREEDOM TO DISTRIBUTE LITERATURE. 

IN THIS CASE THE COURT DENIES SPEECH AMPLIFIERS THE CONSTITUTIONAL
SHELTER RECOGNIZED BY OUR DECISIONS AND HOLDING IN THE SAIA CASE.  THIS
IS TRUE BECAUSE THE TRENTON, NEW JERSEY, ORDINANCE HERE SUSTAINED GOES
BEYOND A MERE PRIOR CENSORSHIP OF ALL LOUD SPEAKERS WITH AUTHORITY IN
THE CENSOR TO PROHIBIT SOME OF THEM.  THIS TRENTON ORDINANCE WHOLLY
BARS THE USE OF ALL LOUD SPEAKERS MOUNTED UPON ANY VEHICLE IN ANY OF
THE CITY'S PUBLIC STREETS. 

IN MY VIEW THIS REPUDIATION OF THE PRIOR SAIA OPINION MAKES A
DANGEROUS AND UNJUSTIFIABLE BREACH IN THE CONSTITUTIONAL BARRIERS
DESIGNED TO INSURE FREEDOM OF EXPRESSION.  IDEAS AND BELIEFS ARE TODAY
CHIEFLY DISSEMINATED TO THE MASSES OF PEOPLE THROUGH THE PRESS, RADIO,
MOVING PICTURES, AND PUBLIC ADDRESS SYSTEMS.  TO SOME EXTENT AT LEAST
THERE IS COMPETITION OF IDEAS BETWEEN AND WITHIN THESE GROUPS.  THE
BASIC PREMISE OF THE FIRST AMENDMENT IS THAT ALL PRESENT INSTRUMENTS OF
COMMUNICATION, AS WELL AS OTHERS THAT INVENTIVE GENIUS MAY BRING INTO
BEING, SHALL BE FREE FROM GOVERNMENTAL CENSORSHIP OR PROHIBITION.  LAWS
WHICH HAMPER THE FREE USE OF SOME INSTRUMENTS OF COMMUNICATION THEREBY
FAVOR COMPETING CHANNELS.  THUS, UNLESS CONSTITUTIONALLY PROHIBITED,
LAWS LIKE THIS TRENTON ORDINANCE CAN GIVE AN OVERPOWERING INFLUENCE TO
VIEWS OF OWNERS OF LEGALLY FAVORED INSTRUMENTS OF COMMUNICATION.  THIS
FAVORITISM, IT SEEMS TO ME, IS THE INEVITABLE RESULT OF TODAY'S
DECISION.  FOR THE RESULT OF TODAY'S OPINION IN UPHOLDING THIS
STATUTORY PROHIBITION OF AMPLIFIERS WOULD SURELY NOT BE REACHED BY THIS
COURT IF SUCH CHANNELS OF COMMUNICATION AS THE PRESS, RADIO, OR MOVING
PICTURES WERE SIMILARLY ATTACKED. 

THERE ARE MANY PEOPLE WHO HAVE IDEAS THAT THEY WISH TO DISSEMINATE
BUT WHO DO NOT HAVE ENOUGH MONEY TO OWN OR CONTROL PUBLISHING PLANTS,
NEWSPAPERS, RADIOS, MOVING PICTURE STUDIOS, OR CHAINS OF SHOW PLACES. 
YET EVERYBODY KNOWS THE VAST REACHES OF THESE POWERFUL CHANNELS OF
COMMUNICATION WHICH FROM THE VERY NATURE OF OUR ECONOMIC SYSTEM MUST BE
UNDER THE CONTROL AND GUIDANCE OF COMPARATIVELY FEW PEOPLE.  ON THE
OTHER HAND, PUBLIC SPEAKING IS DONE BY MANY MEN OF DIVERGENT MINDS WITH
NO CENTRALIZED CONTROL OVER THE IDEAS THEY ENTERTAIN SO AS TO LIMIT THE
CAUSES THEY ESPOUSE.  IT IS NO REFLECTION ON THE VALUE OF PRESERVING
FREEDOM FOR DISSEMINATION OF THE IDEAS OF PUBLISHERS OF NEWSPAPERS,
MAGAZINES, AND OTHER LITERATURE, TO BELIEVE THAT TRANSMISSION OF IDEAS
THROUGH PUBLIC SPEAKING IS ALSO ESSENTIAL TO THE SOUND THINKING OF A
FULLY INFORMED CITIZENRY. 

IT IS OF PARTICULAR IMPORTANCE IN A GOVERNMENT WHERE PEOPLE ELECT
THEIR OFFICIALS THAT THE FULLEST OPPORTUNITY BE AFFORDED CANDIDATES TO
EXPRESS AND VOTERS TO HEAR THEIR VIEWS.  IT IS OF EQUAL IMPORTANCE THAT
CRITICISM OF GOVERNMENTAL ACTION NOT BE LIMITED TO CRITICISMS BY PRESS,
RADIO, AND MOVING PICTURES.  IN NO OTHER WAY EXCEPT PUBLIC SPEAKING CAN
THE DESIRABLE OBJECTIVE OF WIDESPREAD PUBLIC DISCUSSION BE ASSURED. 
FOR THE PRESS, THE RADIO, AND THE MOVING PICTURE OWNERS HAVE THEIR
FAVORITES, AND IT ASSUMES THE IMPOSSIBLE TO SUPPOSE THAT THESE AGENCIES
WILL AT ALL TIMES BE EQUALLY FAIR AS BETWEEN THE CANDIDATES AND
OFFICIALS THEY FAVOR AND THOSE WHOM THEY VIGOROUSLY OPPOSE.  AND IT IS
AN OBVIOUS FACT THAT PUBLIC SPEAKING TODAY WITHOUT SOUND AMPLIFIERS IS
A WHOLLY INADEQUATE WAY TO REACH THE PEOPLE ON A LARGE SCALE. 
CONSEQUENTLY, TO TIP THE SCALES AGAINST TRANSMISSION OF IDEAS THROUGH
PUBLIC SPEAKING, AS THE COURT DOES TODAY, IS TO DEPRIVE THE PEOPLE OF A
LARGE PART OF THE BASIC ADVANTAGES OF THE RECEIPT OF IDEAS THAT THE
FIRST AMENDMENT WAS DESIGNED TO PROTECT. 

THERE IS NO MORE REASON THAT I CAN SEE FOR WHOLLY PROHIBITING ONE
USEFUL INSTRUMENT OF COMMUNICATION THAN ANOTHER.  IF TRENTON CAN
COMPLETELY BAR THE STREETS TO THE ADVANTAGEOUS USE OF LOUD SPEAKERS,
ALL CITIES CAN DO THE SAME.  IN THAT EVENT PREFERENCE IN THE
DISSEMINATION OF IDEAS IS GIVEN THOSE WHO CAN OBTAIN THE SUPPORT OF
NEWSPAPERS, ETC., OR THOSE WHO HAVE MONEY ENOUGH TO BUY ADVERTISING
FROM NEWSPAPERS, RADIOS, OR MOVING PICTURES.  THIS COURT SHOULD NO MORE
PERMIT THIS INVIDIOUS PROHIBITION AGAINST THE DISSEMINATION OF IDEAS BY
SPEAKING THAN IT WOULD PERMIT A COMPLETE BLACKOUT OF THE PRESS, THE
RADIO, OR MOVING PICTURES.  IT IS WISE FOR ALL WHO CHERISH FREEDOM OF
EXPRESSION TO REFLECT UPON THE PLAIN FACT THAT A HOLDING THAT THE
AUDIENCES OF PUBLIC SPEAKERS CAN BE CONSTITUTIONALLY PROHIBITED IS NOT
UNRELATED TO A LIKE PROHIBITION IN OTHER FIELDS.  AND THE RIGHT TO
FREEDOM OF EXPRESSION SHOULD BE PROTECTED FROM ABSOLUTE CENSORSHIP FOR
PERSONS WITHOUT, AS FOR PERSONS WITH, WEALTH AND POWER.  AT LEAST, SUCH
IS THE THEORY OF OUR SOCIETY. 

I AM AWARE THAT THE "BLARE" OF THIS NEW METHOD OF CARRYING IDEAS IS
SUSCEPTIBLE OF ABUSE AND MAY UNDER CERTAIN CIRCUMSTANCES CONSTITUTE AN
INTOLERABLE NUISANCE.  BUT ORDINANCES CAN BE DRAWN WHICH ADEQUATELY
PROTECT A COMMUNITY FROM UNREASONABLE USE OF PUBLIC SPEAKING DEVICES
WITHOUT ABSOLUTELY DENYING TO THE COMMUNITY'S CITIZENS ALL INFORMATION
THAT MAY BE DISSEMINATED OR RECEIVED THROUGH THIS NEW AVENUE FOR TRADE
IN IDEAS.  I WOULD AGREE WITHOUT RESERVATION TO THE SENTIMENT THAT
"UNRESTRAINED USE THROUGHOUT A MUNICIPALITY OF ALL SOUND AMPLIFYING
DEVICES WOULD BE INTOLERABLE."  AND OF COURSE CITIES MAY RESTRICT OR
ABSOLUTELY BAN THE USE OF AMPLIFIERS ON BUSY STREETS IN THE BUSINESS
AREA.  A CITY ORDINANCE THAT REASONABLY RESTRICTS THE VOLUME OF SOUND,
OR THE HOURS DURING WHICH AN AMPLIFIER MAY BE USED, DOES NOT, IN MY
MIND, INFRINGE THE CONSTITUTIONALLY PROTECTED AREA OF FREE SPEECH.  IT
IS BECAUSE THIS ORDINANCE DOES NONE OF THESE THINGS, BUT IS INSTEAD AN
ABSOLUTE PROHIBITION OF ALL USES OF AN AMPLIFIER ON ANY OF THE STREETS
OF TRENTON AT ANY TIME THAT I MUST DISSENT. 

I WOULD REVERSE THE JUDGMENT. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I AM IN ACCORD WITH THE VIEWS EXPRESSED BY MY BROTHER BLACK.  I THINK
IT IMPORTANT, HOWEVER, TO POINT OUT THAT A MAJORITY HERE AGREE WITH HIM
THAT THE ISSUE PRESENTED IS WHETHER A STATE (HERE A MUNICIPALITY) MAY
FORBID ALL USE OF SOUND TRUCKS OR AMPLIFYING DEVICES IN PUBLIC STREETS,
WITHOUT REFERENCE TO WHETHER "LOUD AND RAUCOUS NOISES" ARE EMITTED. 
ONLY A MINORITY TAKE THE VIEW THAT THE TRENTON ORDINANCE MERELY FORBIDS
USING AMPLIFYING INSTRUMENTS EMITTING LOUD AND RAUCOUS NOISES. 

YET A DIFFERENT MAJORITY, ONE INCLUDING THAT MINORITY AND TWO OTHER
JUSTICES, SUSTAIN THE ORDINANCE AND ITS APPLICATION.  IN EFFECT KOVACS
STANDS CONVICTED, BUT OF WHAT IT IS IMPOSSIBLE TO TELL, BECAUSE THE
MAJORITY UPHOLDING THE CONVICTION DO NOT AGREE UPON WHAT CONSTITUTED
THE CRIME.  HOW, ON SUCH A HASHING OF DIFFERENT VIEWS OF THE THING
FORBIDDEN, KOVACS COULD HAVE KNOWN WITH WHAT HE WAS CHARGED OR COULD
HAVE PREPARED A DEFENSE, I AM UNABLE TO SEE.  HOW ANYONE CAN DO EITHER
IN THE FUTURE, UNDER THIS DECISION, I AM EQUALLY AT LOSS TO SAY. 

IN MY VIEW AN ORDINANCE DRAWN SO AMBIGUOUSLY AND INCONSISTENTLY AS TO
REFLECT THE DIFFERING VIEWS OF ITS MEANING TAKEN BY THE TWO GROUPS WHO
COMPOSE THE MAJORITY SUSTAINING IT, WOULD VIOLATE FOURTEENTH AMENDMENT
DUE PROCESS EVEN IF NO QUESTION OF FREE SPEECH WERE INVOLVED.  NO MAN
SHOULD BE SUBJECT TO PUNISHMENT UNDER A STATUTE WHEN EVEN A BARE
MAJORITY OF JUDGES UPHOLDING THE CONVICTION CANNOT AGREE UPON WHAT ACTS
THE STATUTE DENOUNCES. 

WHAT THE EFFECT OF THIS DECISION MAY BE I CANNOT FORETELL, EXCEPT
THAT KOVACS WILL STAND CONVICTED AND THE DIVISION AMONG THE MAJORITY
VOTING TO AFFIRM LEAVES OPEN FOR FUTURE DETERMINATION WHETHER ABSOLUTE
AND TOTAL STATE PROHIBITION OF SOUND TRUCKS IN PUBLIC PLACES CAN STAND
CONSISTENTLY WITH THE FIRST AMENDMENT.  FOR MYSELF, I HAVE NO DOUBT OF
STATE POWER TO REGULATE THEIR ABUSE IN REASONABLE ACCOMMODATION, BY
NARROWLY DRAWN STATUTES, TO OTHER INTERESTS CONCERNED IN USE OF THE
STREETS AND IN FREEDOM FROM PUBLIC NUISANCE.  BUT THAT THE FIRST
AMENDMENT LIMITED ITS PROTECTIONS OF SPEECH TO THE NATURAL RANGE OF THE
HUMAN VOICE AS IT EXISTED IN 1790 WOULD BE, FOR ME, LIKE SAYING THAT
THE COMMERCE POWER REMAINS LIMITED TO NAVIGATION BY SAIL AND TRAVEL BY
THE USE OF HORSES AND OXEN IN ACCORDANCE WITH THE PRINCIPAL MODES OF
CARRYING ON COMMERCE IN 1789.  THE CONSTITUTION WAS NOT DRAWN WITH ANY
SUCH LIMITED VISION OF TIME, SPACE AND MECHANICS.  IT IS ONE THING TO
HOLD THAT THE STATES MAY REGULATE THE USE OF SOUND TRUCKS BY
APPROPRIATELY LIMITED MEASURES.  IT IS ENTIRELY ANOTHER TO SAY THEIR
USE CAN BE FORBIDDEN ALTOGETHER. 

TO WHAT HAS BEEN SAID ABOVE AND BY MR. JUSTICE BLACK, I WOULD ADD
ONLY THAT I THINK MY BROTHER FRANKFURTER DEMONSTRATES THE CONCLUSION
OPPOSITE TO THAT WHICH HE DRAWS, NAMELY, THAT THE FIRST AMENDMENT
GUARANTIES OF THE FREEDOMS OF SPEECH, PRESS, ASSEMBLY AND RELIGION
OCCUPY PREFERRED POSITION NOT ONLY IN THE BILL OF RIGHTS BUT ALSO IN
THE REPEATED DECISIONS OF THIS COURT. 
..END :




















RAILWAY EXPRESS V. NEW YORK, 336 U.S. 106 


NO. 51.  ARGUED DECEMBER 6, 1948.  - DECIDED JANUARY 31, 1949.  - 297
N.Y. 703, 77 N.E.2D 13, AFFIRMED. 


A NEW YORK CITY TRAFFIC REGULATION FORBIDS THE OPERATION OF ANY
ADVERTISING VEHICLE ON THE STREETS, BUT EXCEPTS VEHICLES WHICH HAVE
UPON THEM BUSINESS NOTICES OR ADVERTISEMENTS OF THE PRODUCTS OF THE
OWNER AND WHICH ARE NOT USED MERELY OR MAINLY FOR ADVERTISING.  AN
EXPRESS COMPANY, WHICH SOLD SPACE ON THE EXTERIOR SIDES OF ITS TRUCKS
FOR ADVERTISING AND WHICH OPERATED SUCH TRUCKS ON THE STREETS, WAS
CONVICTED AND FINED FOR VIOLATING THE ORDINANCE.  UPON REVIEW HERE OF
THE STATE COURT JUDGMENT, HELD: 

1.  THE REGULATION DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 108-109. 

(A)  THE FUNCTION OF THIS COURT UPON SUCH REVIEW IS NOT TO WEIGH
EVIDENCE ON THE DUE PROCESS ISSUE IN ORDER TO DETERMINE WHETHER THE
REGULATION IS SOUND OR APPROPRIATE, NOR TO PASS JUDGMENT ON THE WISDOM
OF THE REGULATION.  P. 109. 

(B)  THIS COURT CAN NOT SAY THAT THE REGULATION HAS NO RELATION TO
THE TRAFFIC PROBLEM OF THE CITY.  P. 109. 

2.  THE EXEMPTION OF VEHICLES HAVING UPON THEM ADVERTISEMENTS OF
PRODUCTS SOLD BY THE OWNER DOES NOT RENDER THE REGULATION A DENIAL OF
THE EQUAL PROTECTION OF THE LAWS.  PP. 109-110. 

(A)  THIS COURT CAN NOT SAY THAT THE ADVERTISING WHICH IS FORBIDDEN
HAS LESS INCIDENCE ON TRAFFIC THAN THAT WHICH IS EXEMPTED.  P. 110. 

(B)  THE REGULATION IS NOT RENDERED INVALID BY THE FACT THAT IT DOES
NOT EXTEND TO WHAT MAY BE EVEN GREATER DISTRACTIONS AFFECTING TRAFFIC
SAFETY, SUCH AS THE SPECTACULAR DISPLAYS AT TIMES SQUARE.  P. 110. 

3.  THE REGULATION DOES NOT BURDEN INTERSTATE COMMERCE IN VIOLATION
OF ART. I, SEC. 8 OF THE FEDERAL CONSTITUTION.  P. 111. 

(A)  WHERE TRAFFIC CONTROL AND THE USE OF HIGHWAYS ARE INVOLVED, AND
WHERE THERE IS NO CONFLICTING FEDERAL REGULATION, GREAT LEEWAY IS
ALLOWED LOCAL AUTHORITIES, EVEN THOUGH THE LOCAL REGULATION MATERIALLY
INTERFERES WITH INTERSTATE COMMERCE.  P. 111. 

RAILWAY EXPRESS AGENCY, INC. ET AL. V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

APPELLANT WAS CONVICTED AND FINED FOR VIOLATION OF A TRAFFIC
REGULATION OF THE CITY OF NEW YORK.  THE CONVICTION WAS SUSTAINED BY
THE COURT OF SPECIAL SESSIONS.  188 MISC. 342, 67 N.Y.S.2D 732.  THE
COURT OF APPEALS AFFIRMED.  297 N.Y. 703, 77 N.E.2D 13.  ON APPEAL TO
THIS COURT, AFFIRMED, P. 111. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PROMULGATED BY THE POLICE COMMISSIONER PROVIDES: 

"NO PERSON SHALL OPERATE, OR CAUSE TO BE OPERATED, IN OR UPON ANY
STREET AN ADVERTISING VEHICLE; PROVIDED THAT NOTHING HEREIN CONTAINED
SHALL PREVENT THE PUTTING OF BUSINESS NOTICES UPON BUSINESS DELIVERY
VEHICLES, SO LONG AS SUCH VEHICLES ARE ENGAGED IN THE USUAL BUSINESS OR
REGULAR WORK OF THE OWNER AND NOT USED MERELY OR MAINLY FOR
ADVERTISING." 

APPELLANT IS ENGAGED IN A NATION-WIDE EXPRESS BUSINESS.  IT OPERATES
ABOUT 1,900 TRUCKS IN NEW YORK CITY AND SELLS THE SPACE ON THE EXTERIOR
SIDES OF THESE TRUCKS FOR ADVERTISING.  THAT ADVERTISING IS FOR THE
MOST PART UNCONNECTED WITH ITS OWN BUSINESS.  FN2  IT WAS CONVICTED IN
THE MAGISTRATE'S COURT AND FINED.  THE JUDGMENT OF CONVICTION WAS
SUSTAINED IN THE COURT OF SPECIAL SESSIONS.  188 MISC. 342, 67 N.Y.S.2D
732.  THE COURT OF APPEALS AFFIRMED WITHOUT OPINION BY A DIVIDED VOTE. 
297 N.Y. 703, 77 N.E.2D 13.  THE CASE IS HERE ON APPEAL.  JUDICIAL CODE
SEC. 237(A), 28 U.S.C. SEC. 344(A), AS AMENDED, NOW 28 U.S.C. SEC.
1257. 

THE COURT IN FIFTH AVE. COACH CO. V. NEW YORK, 221 U.S. 467,
SUSTAINED THE PREDECESSOR ORDINANCE TO THE PRESENT REGULATION OVER THE
OBJECTION THAT IT VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES
OF THE FOURTEENTH AMENDMENT.  IT IS TRUE THAT THAT WAS A MUNICIPAL
ORDINANCE RESTING ON THE BROAD BASE OF THE POLICE POWER, WHILE THE
PRESENT REGULATION STANDS OR FALLS MERELY AS A TRAFFIC REGULATION.  BUT
WE DO NOT BELIEVE THAT DISTINCTION WARRANTS A DIFFERENT RESULT IN THE
TWO CASES. 

THE COURT OF SPECIAL SESSIONS CONCLUDED THAT ADVERTISING ON VEHICLES
USING THE STREETS OF NEW YORK CITY CONSTITUTES A DISTRACTION TO VEHICLE
DRIVERS AND TO PEDESTRIANS ALIKE AND THEREFORE AFFECTS THE SAFETY OF
THE PUBLIC IN THE USE OF THE STREETS.  FN3  WE DO NOT SIT TO WEIGH
EVIDENCE ON THE DUE PROCESS ISSUE IN ORDER TO DETERMINE WHETHER THE
REGULATION IS SOUND OR APPROPRIATE; NOR IS IT OUR FUNCTION TO PASS
JUDGMENT ON ITS WISDOM.  SEE OLSEN V. NEBRASKA, 313 U.S. 236.  WE WOULD
BE TRESPASSING ON ONE OF THE MOST INTENSELY LOCAL AND SPECIALIZED OF
ALL MUNICIPAL PROBLEMS IF WE HELD THAT THIS REGULATION HAD NO RELATION
TO THE TRAFFIC PROBLEM OF NEW YORK CITY.  IT IS THE JUDGMENT OF THE
LOCAL AUTHORITIES THAT IT DOES HAVE SUCH A RELATION.  AND NOTHING HAS
BEEN ADVANCED WHICH SHOWS THAT TO BE PALPABLY FALSE. 

THE QUESTION OF EQUAL PROTECTION OF THE LAWS IS PRESSED MORE
STRENUOUSLY ON US.  IT IS POINTED OUT THAT THE REGULATION DRAWS THE
LINE BETWEEN ADVERTISEMENTS OF PRODUCTS SOLD BY THE OWNER OF THE TRUCK
AND GENERAL ADVERTISEMENTS.  IT IS ARGUED THAT UNEQUAL TREATMENT ON THE
BASIS OF SUCH A DISTINCTION IS NOT JUSTIFIED BY THE AIM AND PURPOSE OF
THE REGULATION.  IT IS SAID, FOR EXAMPLE, THAT ONE OF APPELLANT'S
TRUCKS CARRYING THE ADVERTISEMENT OF A COMMERCIAL HOUSE WOULD NOT CAUSE
ANY GREATER DISTRACTION OF PEDESTRIANS AND VEHICLE DRIVERS THAN IF THE
COMMERCIAL HOUSE CARRIED THE SAME ADVERTISEMENT ON ITS OWN TRUCK.  YET
THE REGULATION ALLOWS THE LATTER TO DO WHAT THE FORMER IS FORBIDDEN
FROM DOING.  IT IS THEREFORE CONTENDED THAT THE CLASSIFICATION WHICH
THE REGULATION MAKES HAS NO RELATION TO THE TRAFFIC PROBLEM SINCE A
VIOLATION TURNS NOT ON WHAT KIND OF ADVERTISEMENTS ARE CARRIED ON
TRUCKS BUT ON WHOSE TRUCKS THEY ARE CARRIED. 

THAT, HOWEVER, IS A SUPERFICIAL WAY OF ANALYZING THE PROBLEM, EVEN IF
WE ASSUME THAT IT IS PREMISED ON THE CORRECT CONSTRUCTION OF THE
REGULATION.  THE LOCAL AUTHORITIES MAY WELL HAVE CONCLUDED THAT THOSE
WHO ADVERTISE THEIR OWN WARES ON THEIR TRUCKS DO NOT PRESENT THE SAME
TRAFFIC PROBLEM IN VIEW OF THE NATURE OR EXTENT OF THE ADVERTISING
WHICH THEY USE.  IT WOULD TAKE A DEGREE OF OMNISCIENCE WHICH WE LACK TO
SAY THAT SUCH IS NOT THE CASE.  IF THAT JUDGMENT IS CORRECT, THE
ADVERTISING DISPLAYS THAT ARE EXEMPT HAVE LESS INCIDENCE ON TRAFFIC
THAN THOSE OF APPELLANTS. 

WE CANNOT SAY THAT THAT JUDGMENT IS NOT AN ALLOWABLE ONE.  YET IF IT
IS, THE CLASSIFICATION HAS RELATION TO THE PURPOSE FOR WHICH IT IS MADE
AND DOES NOT CONTAIN THE KIND OF DISCRIMINATION AGAINST WHICH THE EQUAL
PROTECTION CLAUSE AFFORDS PROTECTION.  IT IS BY SUCH PRACTICAL
CONSIDERATIONS BASED ON EXPERIENCE RATHER THAN BY THEORETICAL
INCONSISTENCIES THAT THE QUESTION OF EQUAL PROTECTION IS TO BE
ANSWERED.  PATSONE V. PENNSYLVANIA, 232 U.S. 138, 144; MARCUS BROWN CO.
V. FELDMAN, 256 U.S. 170, 198-199; METROPOLITAN CO. V. BROWNELL, 294
U.S. 580, 585-586.  AND THE FACT THAT NEW YORK CITY SEES FIT TO
ELIMINATE FROM TRAFFIC THIS KIND OF DISTRACTION BUT DOES NOT TOUCH WHAT
MAY BE EVEN GREATER ONES IN A DIFFERENT CATEGORY, SUCH AS THE VIVID
DISPLAYS ON TIMES SQUARE, IS IMMATERIAL.  IT IS NO REQUIREMENT OF EQUAL
PROTECTION THAT ALL EVILS OF THE SAME GENUS BE ERADICATED OR NONE AT
ALL.  CENTRAL LUMBER CO. V. SOUTH DAKOTA, 226 U.S. 157, 160. 

IT IS FINALLY CONTENDED THAT THE REGULATION IS A BURDEN ON INTERSTATE
COMMERCE IN VIOLATION OF ART. I, SEC. 8 OF THE CONSTITUTION.  MANY OF
THESE TRUCKS ARE ENGAGED IN DELIVERING GOODS IN INTERSTATE COMMERCE
FROM NEW JERSEY TO NEW YORK.  WHERE TRAFFIC CONTROL AND THE USE OF
HIGHWAYS ARE INVOLVED AND WHERE THERE IS NO CONFLICTING FEDERAL
REGULATION, GREAT LEEWAY IS ALLOWED LOCAL AUTHORITIES, EVEN THOUGH THE
LOCAL REGULATION MATERIALLY INTERFERES WITH INTERSTATE COMMERCE.  THE
CASE IN THAT POSTURE IS CONTROLLED BY S.C. HWY.  DEPT.  V. BARNWELL
BROS., 303 U.S. 177, 187 ET SEQ.  AND SEE MAURER V. HAMILTON, 309 U.S.
598.  AFFIRMED. 

FN1  THIS REGULATION WAS PROMULGATED BY THE POLICE COMMISSIONER
PURSUANT TO THE POWER GRANTED THE POLICE DEPARTMENT UNDER SEC. 435 OF
THE NEW YORK CITY CHARTER WHICH PROVIDES AS FOLLOWS:  "THE POLICE
DEPARTMENT AND FORCE SHALL HAVE THE POWER AND IT SHALL BE THEIR DUTY TO
...  REGULATE, DIRECT, CONTROL AND RESTRICT THE MOVEMENT OF VEHICULAR
AND PEDESTRIAN TRAFFIC FOR THE FACILITATION OF TRAFFIC AND THE
CONVENIENCE OF THE PUBLIC AS WELL AS THE PROPER PROTECTION OF HUMAN
LIFE AND HEALTH; ...  THE COMMISSIONER SHALL MAKE SUCH RULES AND
REGULATIONS FOR THE CONDUCT OF PEDESTRIAN AND VEHICULAR TRAFFIC IN THE
USE OF THE PUBLIC STREETS, SQUARES AND AVENUES AS HE MAY DEEM NECESSARY
...  " 

FN2  THE ADVERTISEMENTS FOR WHICH APPELLANT WAS CONVICTED CONSISTED
OF POSTERS FROM THREE BY SEVEN FEET TO FOUR BY TEN FEET PORTRAYING
CAMEL CIGARETTES, RINGLING BROTHERS AND BARNUM & BAILEY CIRCUS, AND
RADIO STATION WOR.  DRIVERS OF APPELLANT'S TRUCKS CARRYING
ADVERTISEMENTS OF PRINCE ALBERT SMOKING TOBACCO AND THE UNITED STATES
NAVY WERE ALSO CONVICTED. 

FN3  THE ELEMENT OF SAFETY WAS HELD TO BE ONE OF THE STANDARDS BY
WHICH THE REGULATIONS OF THE POLICE COMMISSIONER WERE TO BE JUDGED.  WE
ACCEPT THAT CONSTRUCTION OF THE AUTHORITY OF THE POLICE COMMISSIONER
UNDER SEC. 435 OF THE CHARTER, NOTE 1, SUPRA.  SEE PRICE V. ILLINOIS,
238 U.S. 446, 451; HARTFORD ACCIDENT CO. V. NELSON CO., 291 U.S. 352,
358; CENTRAL HANOVER BANK CO. V. KELLY, 319 U.S. 94, 97. 

MR. JUSTICE RUTLEDGE ACQUIESCES IN THE COURT'S OPINION AND JUDGMENT,
DUBITANTE ON THE QUESTION OF EQUAL PROTECTION OF THE LAWS. 

MR. JUSTICE JACKSON, CONCURRING. 

THERE ARE TWO CLAUSES OF THE FOURTEENTH AMENDMENT WHICH THIS COURT
MAY INVOKE TO INVALIDATE ORDINANCES BY WHICH MUNICIPAL GOVERNMENTS SEEK
TO SOLVE THEIR LOCAL PROBLEMS.  ONE SAYS THAT NO STATE SHALL "DEPRIVE
ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW." 
THE OTHER DECLARES THAT NO STATE SHALL "DENY TO ANY PERSON WITHIN ITS
JURISDICTION THE EQUAL PROTECTION OF THE LAWS." 

MY PHILOSOPHY AS TO THE RELATIVE READINESS WITH WHICH WE SHOULD
RESORT TO THESE TWO CLAUSES IS ALMOST DIAMETRICALLY OPPOSED TO THE
PHILOSOPHY WHICH PREVAILS ON THIS COURT.  WHILE CLAIMS OF DENIAL OF
EQUAL PROTECTION ARE FREQUENTLY ASSERTED, THEY ARE RARELY SUSTAINED. 
BUT THE COURT FREQUENTLY USES THE DUE PROCESS CLAUSE TO STRIKE DOWN
MEASURES TAKEN BY MUNICIPALITIES TO DEAL WITH ACTIVITIES IN THEIR
STREETS AND PUBLIC PLACES WHICH THE LOCAL AUTHORITIES CONSIDER AS
CREATING HAZARDS, ANNOYANCES OR DISCOMFORTS TO THEIR INHABITANTS.  AND
I HAVE FREQUENTLY DISSENTED WHEN I THOUGHT LOCAL POWER WAS IMPROPERLY
DENIED.  SEE, FOR EXAMPLE, OPINION IN DOUGLAS V. JEANNETTE AND
COMPANION CASES, 319 U.S. 157, 166; AND DISSENTS IN SAIA V. NEW YORK,
334 U.S. 558, 566; PRINCE V. MASSACHUSETTS, 321 U.S. 158, 176. 

THE BURDEN SHOULD REST HEAVILY UPON ONE WHO WOULD PERSUADE US TO USE
THE DUE PROCESS CLAUSE TO STRIKE DOWN A SUBSTANTIVE LAW OR ORDINANCE. 
EVEN ITS PROVIDENT USE AGAINST MUNICIPAL REGULATIONS FREQUENTLY
DISABLES ALL GOVERNMENT - STATE, MUNICIPAL AND FEDERAL - FROM DEALING
WITH THE CONDUCT IN QUESTION BECAUSE THE REQUIREMENT OF DUE PROCESS IS
ALSO APPLICABLE TO STATE AND FEDERAL GOVERNMENTS.  INVALIDATION OF A
STATUTE OR AN ORDINANCE ON DUE PROCESS GROUNDS LEAVES UNGOVERNED AND
UNGOVERNABLE CONDUCT WHICH MANY PEOPLE FIND OBJECTIONABLE. 

INVOCATION OF THE EQUAL PROTECTION CLAUSE, ON THE OTHER HAND, DOES
NOT DISABLE ANY GOVERNMENTAL BODY FROM DEALING WITH THE SUBJECT AT
HAND.  IT MERELY MEANS THAT THE PROHIBITION OR REGULATION MUST HAVE A
BROADER IMPACT.  I REGARD IT AS A SALUTARY DOCTRINE THAT CITIES, STATES
AND THE FEDERAL GOVERNMENT MUST EXERCISE THEIR POWERS SO AS NOT TO
DISCRIMINATE BETWEEN THEIR INHABITANTS EXCEPT UPON SOME REASONABLE
DIFFERENTIATION FAIRLY RELATED TO THE OBJECT OF REGULATION.  THIS
EQUALITY IS NOT MERELY ABSTRACT JUSTICE.  THE FRAMERS OF THE
CONSTITUTION KNEW, AND WE SHOULD NOT FORGET TODAY, THAT THERE IS NO
MORE EFFECTIVE PRACTICAL GUARANTY AGAINST ARBITRARY AND UNREASONABLE
GOVERNMENT THAN TO REQUIRE THAT THE PRINCIPLES OF LAW WHICH OFFICIALS
WOULD IMPOSE UPON A MINORITY MUST BE IMPOSED GENERALLY.  CONVERSELY,
NOTHING OPENS THE DOOR TO ARBITRARY ACTION SO EFFECTIVELY AS TO ALLOW
THOSE OFFICIALS TO PICK AND CHOOSE ONLY A FEW TO WHOM THEY WILL APPLY
LEGISLATION AND THUS TO ESCAPE THE POLITICAL RETRIBUTION THAT MIGHT BE
VISITED UPON THEM IF LARGER NUMBERS WERE AFFECTED.  COURTS CAN TAKE NO
BETTER MEASURE TO ASSURE THAT LAWS WILL BE JUST THAN TO REQUIRE THAT
LAWS BE EQUAL IN OPERATION. 

THIS CASE AFFORDS AN ILLUSTRATION.  EVEN CASUAL OBSERVATIONS FROM THE
SIDEWALKS OF NEW YORK WILL SHOW THAT AN ORDINANCE WHICH WOULD FORBID
ALL ADVERTISING ON VEHICLES WOULD RUN INTO CONFLICT WITH MANY
INTERESTS, INCLUDING SOME, IF NOT ALL, OF THE GREAT METROPOLITAN
NEWSPAPERS, WHICH USE THAT ADVERTISING EXTENSIVELY.  THEIR BLANDISHMENT
OF THE LATEST SENSATIONS IS NOT LESS A CAUSE OF DIVERTED ATTENTION AND
TRAFFIC HAZARD THAN THE COMMONPLACE CIGARETTE ADVERTISEMENT WHICH THIS
TRUCK-OWNER IS FORBIDDEN TO DISPLAY.  BUT ANY REGULATION APPLICABLE TO
ALL SUCH ADVERTISING WOULD REQUIRE MUCH CLEARER JUSTIFICATION IN LOCAL
CONDITIONS TO ENABLE ITS ENACTMENT THAN DOES SOME REGULATION APPLICABLE
TO A FEW.  I DO NOT MENTION THIS TO CRITICIZE THE MOTIVES OF THOSE WHO
ENACTED THIS ORDINANCE, BUT IT DRAMATIZES THE POINT THAT WE ARE MUCH
MORE LIKELY TO FIND ARBITRARINESS IN THE REGULATION OF THE FEW THAN OF
THE MANY.  HENCE, FOR MY PART, I AM MORE RECEPTIVE TO ATTACK ON LOCAL
ORDINANCES FOR DENIAL OF EQUAL PROTECTION THAN FOR DENIAL OF DUE
PROCESS, WHILE THE COURT HAS MORE OFTEN USED THE LATTER CLAUSE. 

IN THIS CASE, IF THE CITY OF NEW YORK SHOULD ASSUME THAT DISPLAY OF
ANY ADVERTISING ON VEHICLES TENDS AND INTENDS TO DISTRACT THE ATTENTION
OF PERSONS USING THE HIGHWAYS AND TO INCREASE THE DANGERS OF ITS
TRAFFIC, I SHOULD THINK IT FULLY WITHIN ITS CONSTITUTIONAL POWERS TO
FORBID IT ALL.  THE SAME WOULD BE TRUE IF THE CITY SHOULD UNDERTAKE TO
ELIMINATE OR MINIMIZE THE HAZARD BY ANY GENERALLY APPLICABLE RESTRAINT,
SUCH AS LIMITING THE SIZE, COLOR, SHAPE OR PERHAPS TO SOME EXTENT THE
CONTENTS OF VEHICULAR ADVERTISING.  INSTEAD OF SUCH GENERAL REGULATION
OF ADVERTISING, HOWEVER, THE CITY SEEKS TO REDUCE THE HAZARD ONLY BY
SAYING THAT WHILE SOME MAY, OTHERS MAY NOT EXHIBIT SUCH APPEALS.  THE
SAME DISPLAY, FOR EXAMPLE, ADVERTISING CIGARETTES, WHICH THIS APPELLANT
IS FORBIDDEN TO CARRY ON ITS TRUCKS, MAY BE CARRIED ON THE TRUCKS OF A
CIGARETTE DEALER AND MIGHT ON THE TRUCKS OF THIS APPELLANT IF IT DEALT
IN CIGARETTES.  AND ALMOST AN IDENTICAL ADVERTISEMENT, CERTAINLY ONE OF
EQUAL SIZE, SHAPE, COLOR AND APPEARANCE, MAY BE CARRIED BY THIS
APPELLANT IF IT PROCLAIMS ITS OWN OFFER TO TRANSPORT CIGARETTES.  BUT
IT MAY NOT BE CARRIED SO LONG AS THE MESSAGE IS NOT ITS OWN BUT A
CIGARETTE DEALER'S OFFER TO SELL THE SAME CIGARETTES. 

THE CITY URGES THAT THIS APPLIES EQUALLY TO ALL PERSONS OF A
PERMISSIBLE CLASSIFICATION, BECAUSE ALL THAT IT DOES IS (1) FORBID ALL
INHABITANTS OF NEW YORK CITY FROM ENGAGING IN THE BUSINESS OF SELLING
ADVERTISING SPACE ON TRUCKS WHICH MOVE AS PART OF THE CITY TRAFFIC; (2)
FORBID ALL TRUCK OWNERS FROM INCIDENTALLY EMPLOYING THEIR VEHICLES FOR
SUCH PURPOSE, WITH THE EXCEPTION THAT ALL TRUCK OWNERS CAN ADVERTISE
THEIR OWN BUSINESS ON THEIR OWN TRUCKS.  IT IS ARGUED THAT, WHILE THIS
DOES NOT ELIMINATE VEHICULAR ADVERTISING, IT DOES ELIMINATE SUCH
ADVERTISING FOR HIRE AND TO THIS EXTENT CUTS DOWN THE HAZARD SOUGHT TO
BE CONTROLLED.    THAT THE DIFFERENCE BETWEEN CARRYING ON ANY BUSINESS
FOR HIRE AND ENGAGING IN THE SAME ACTIVITY ON ONE'S OWN IS A SUFFICIENT
ONE TO SUSTAIN SOME TYPES OF REGULATIONS OF THE ONE THAT IS NOT APPLIED
TO THE OTHER, IS ALMOST ELEMENTARY.  BUT IT IS USUAL TO FIND SUCH
REGULATIONS APPLIED TO THE VERY INCIDENTS WHEREIN THE TWO CLASSES
PRESENT DIFFERENT PROBLEMS, SUCH AS IN CHARGES, LIABILITY AND QUALITY
OF SERVICE. 

THE DIFFERENCE, HOWEVER, IS INVOKED HERE TO SUSTAIN A DISCRIMINATION
IN A PROBLEM IN WHICH THE TWO CLASSES PRESENT IDENTICAL DANGERS.  THE
COURTS OF NEW YORK HAVE DECLARED THAT THE SOLE NATURE AND PURPOSE OF
THE REGULATION BEFORE US IS TO REDUCE TRAFFIC HAZARDS.  THERE IS NOT
EVEN A PRETENSE HERE THAT THE TRAFFIC HAZARD CREATED BY THE ADVERTISING
WHICH IS FORBIDDEN IS IN ANY MANNER OR DEGREE MORE HAZARDOUS THAN THAT
WHICH IS PERMITTED.  IT IS URGED WITH CONSIDERABLE FORCE THAT THIS
LOCAL REGULATION DOES NOT COMPLY WITH THE EQUAL PROTECTION CLAUSE
BECAUSE IT APPLIES UNEQUALLY UPON CLASSES WHOSE DIFFERENTIATION IS IN
NO WAY RELEVANT TO THE OBJECTS OF THE REGULATION. 

AS A MATTER OF PRINCIPLE AND IN VIEW OF MY ATTITUDE TOWARD THE EQUAL
PROTECTION CLAUSE, I DO NOT THINK DIFFERENCES OF TREATMENT UNDER LAW
SHOULD BE APPROVED ON CLASSIFICATION BECAUSE OF DIFFERENCES UNRELATED
TO THE LEGISLATIVE PURPOSE.  THE EQUAL PROTECTION CLAUSE CEASES TO
ASSURE EITHER EQUALITY OR PROTECTION IF IT IS AVOIDED BY ANY
CONCEIVABLE DIFFERENCE THAT CAN BE POINTED OUT BETWEEN THOSE BOUND AND
THOSE LEFT FREE.  THIS COURT HAS OFTEN ANNOUNCED THE PRINCIPLE THAT THE
DIFFERENTIATION MUST HAVE AN APPROPRIATE RELATION TO THE OBJECT OF THE
LEGISLATION OR ORDINANCE.  SEE, FOR EXAMPLE, MAYFLOWER FARMS V. TEN
EYCK, 297 U.S. 266; SMITH V. CAHOON, 283 U.S. 553.  IN THE LATTER CASE
A MOTOR VEHICLE REGULATION WAS STRUCK DOWN UPON CITATION OF MANY
AUTHORITIES BECAUSE "SUCH A CLASSIFICATION IS NOT BASED ON ANYTHING
HAVING RELATION TO THE PURPOSE FOR WHICH IT IS MADE."  283 U.S. 553,
567.  IF THAT WERE THE SITUATION HERE, I SHOULD THINK WE SHOULD REACH A
SIMILAR CONCLUSION. 

THE QUESTION IN MY MIND COMES TO THIS.  WHERE INDIVIDUALS CONTRIBUTE
TO AN EVIL OR DANGER IN THE SAME WAY AND TO THE SAME DEGREE, MAY THOSE
WHO DO SO FOR HIRE BE PROHIBITED, WHILE THOSE WHO DO SO FOR THEIR OWN
COMMERCIAL ENDS BUT NOT FOR HIRE BE ALLOWED TO CONTINUE?  I THINK THE
ANSWER HAS TO BE THAT THE HIRELING MAY BE PUT IN A CLASS BY HIMSELF AND
MAY BE DEALT WITH DIFFERENTLY THAN THOSE WHO ACT ON THEIR OWN.  BUT
THIS IS NOT MERELY BECAUSE SUCH A DISCRIMINATION WILL ENABLE THE
LAWMAKER TO DIMINISH THE EVIL.  THAT MIGHT BE DONE BY MANY
CLASSIFICATIONS, WHICH I SHOULD THINK WHOLLY UNSUSTAINABLE.  IT IS
RATHER BECAUSE THERE IS A REAL DIFFERENCE BETWEEN DOING IN SELF
INTEREST AND DOING FOR HIRE, SO THAT IT IS ONE THING TO TOLERATE ACTION
FROM THOSE WHO ACT ON THEIR OWN AND IT IS ANOTHER THING TO PERMIT THE
SAME ACTION TO BE PROMOTED FOR A PRICE. 

CERTAINLY THE PRESENCE OR ABSENCE OF HIRE HAS BEEN THE HOOK BY WHICH
MUCH HIGHWAY REGULATION HAS BEEN SUPPORTED.  RIGHTS USUAL TO PASSENGERS
MAY BE DENIED TO THE NONPAYING GUEST IN AN AUTOMOBILE TO LIMIT
VEXATIOUS LITIGATION.  SILVER V. SILVER, 280 U.S. 117.  A STATE MAY
REQUIRE SECURITY AGAINST INJURIES FROM ONE USING THE HIGHWAYS FOR HIRE
THAT IT DOES NOT EXACT FROM OTHERS BECAUSE, AS MR. JUSTICE SUTHERLAND
PUT IT, "THE STREETS BELONG TO THE PUBLIC AND ARE PRIMARILY FOR THE USE
OF THE PUBLIC IN THE ORDINARY WAY.  THEIR USE FOR THE PURPOSES OF GAIN
IS SPECIAL AND EXTRAORDINARY AND, GENERALLY AT LEAST, MAY BE PROHIBITED
OR CONDITIONED AS THE LEGISLATURE DEEMS PROPER."  PACKARD V. BANTON,
264 U.S. 140, 144.  IN THE CASE OF THOSE WHO LET OUT AUTOMOBILES TO
THOSE WHO DRIVE THEM, THE COURT, THROUGH MR. JUSTICE BUTLER, SAID OF
THE STATE, "IT MAY PROHIBIT OR CONDITION AS IT DEEMS PROPER THE USE OF
CITY STREETS AS A PLACE FOR THE CARRYING ON OF PRIVATE BUSINESS." 
HODGE CO. V. CINCINNATI, 284 U.S. 335, 337.  SEE ALSO SPROLES V.
BINFORD, 286 U.S. 374, 393; STEPHENSON V. BINFORD, 287 U.S. 251, 278;
HICKLIN V. CONEY, 290 U.S. 169; STANLEY V. PUBLIC UTILITIES COMMISSION,
295 U.S. 76; AERO TRANSIT CO. V. GEORGIA COMMISSION, 295 U.S. 285;
DIXIE OHIO EXPRESS CO. V. STATE REVENUE COMMISSION, 306 U.S. 72.  THE
RULE WAS FLATLY STATED FOR THE COURT BY MR. JUSTICE BRANDEIS:  "IN
DEALING WITH THE PROBLEM OF SAFETY OF THE HIGHWAYS, AS IN OTHER
PROBLEMS OF MOTOR TRANSPORTATION, THE STATE MAY ADOPT MEASURES WHICH
FAVOR VEHICLES USED SOLELY IN THE BUSINESS OF THEIR OWNERS, AS
DISTINGUISHED FROM THOSE WHICH ARE OPERATED FOR HIRE BY CARRIERS WHO
USE THE HIGHWAYS AS THEIR PLACE OF BUSINESS."  BRADLEY V. PUBLIC
UTILITIES COMMISSION, 289 U.S. 92, 97.  HOWEVER, IT IS OTHERWISE IF THE
DISCRIMINATIONS WITHIN THE REGULATED CLASS ARE BASED ON ARBITRARY
DIFFERENCES AS TO COMMODITIES CARRIED HAVING NO RELATION TO THE OBJECT
OF THE REGULATION.  SMITH V. CAHOON, 283 U.S. 553.  SEE ALSO QUAKER
CITY CAB CO. V. PENNSYLVANIA, 277 U.S. 389. 

OF COURSE, THIS APPELLANT DID NOT HOLD ITSELF OUT TO CARRY OR DISPLAY
EVERYBODY'S ADVERTISING, AND ITS RENTAL OF SPACE ON THE SIDES OF ITS
TRUCKS WAS ONLY INCIDENTAL TO THE MAIN BUSINESS WHICH BROUGHT ITS
TRUCKS INTO THE STREETS.  BUT IT IS NOT DIFFICULT TO SEE THAT, IN A DAY
OF EXTRAVAGANT ADVERTISING MORE OR LESS SUBSIDIZED BY TAX DEDUCTION,
THE RENTAL OF TRUCK SPACE COULD BECOME AN OBNOXIOUS ENTERPRISE.  WHILE
I DO NOT THINK HIGHLY OF THIS TYPE OF REGULATION, THAT IS NOT MY
BUSINESS, AND IN VIEW OF THE CONTROL I WOULD CONCEDE TO CITIES TO
PROTECT CITIZENS IN QUIET AND ORDERLY USE FOR THEIR PROPER PURPOSES OF
THE HIGHWAYS AND PUBLIC PLACES (SEE DISSENT IN SAIA V. NEW YORK, 334
U.S. 558, 566), I THINK THE JUDGMENT BELOW MUST BE AFFIRMED. 
..END :
















GOGGIN V. CALIFORNIA LABOR DIV., 336 U.S. 118 


NO. 35.  ARGUED NOVEMBER 15, 1948.  - DECIDED JANUARY 31, 1949.  - 165
F.2D 155, REVERSED. 


1.  A TAX CLAIM OF THE UNITED STATES WHICH, AT THE TIME OF THE FILING
OF A PETITION IN BANKRUPTCY, WAS SECURED BY A PERFECTED LIEN AND
ACCOMPANIED BY A COLLECTOR OF INTERNAL REVENUE'S POSSESSION OF PERSONAL
PROPERTY OF THE BANKRUPT IS ENTITLED TO PRIORITY OF PAYMENT OUT OF THE
PROCEEDS OF THAT PROPERTY, OVER CLAIMS FOR WAGES OF THE KIND SPECIFIED
IN SEC. 64A(2) OF THE BANKRUPTCY ACT, AND IS NOT REQUIRED BY SEC. 67C
TO BE POSTPONED IN PAYMENT TO SUCH CLAIMS BY REASON OF THE COLLECTOR'S
SUBSEQUENT RELINQUISHMENT OF POSSESSION OF THE PROPERTY TO THE TRUSTEE
IN BANKRUPTCY FOR SALE BY HIM.  PP. 119-131. 

2.  THE PRIORITY OF THE TAX LIEN OVER THE WAGE CLAIMS MUST BE
DETERMINED AS OF THE TIME OF THE FILING OF THE PETITION IN BANKRUPTCY
AND IS UNAFFECTED BY AN ARRANGEMENT UNDER WHICH POSSESSION OF THE
PROPERTY IS SUBSEQUENTLY RELINQUISHED TO THE TRUSTEE FOR SALE BY HIM. 
PP. 124-126. 

3.  ALTHOUGH SEC. 67C WAS ADDED TO THE BANKRUPTCY ACT BY THE CHANDLER
ACT IN 1938, THERE IS NOTHING IN IT OR IN ITS LEGISLATIVE HISTORY TO
SUGGEST AN ABANDONMENT OF THE UNDERLYING POINT OF VIEW AS TO THE TIME
AS OF WHICH IT SPEAKS AND THE GENERAL PURPOSE OF CONGRESS TO CONTINUE
TO SAFEGUARD INTERESTS UNDER LIENS PERFECTED BEFORE BANKRUPTCY.  PP.
126-130. 

GOGGIN, TRUSTEE IN BANKRUPTCY, V. DIVISION OF LABOR LAW ENFORCEMENT OF
CALIFORNIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

THE DIVISION OF LABOR LAW ENFORCEMENT OF THE STATE OF CALIFORNIA, AS
ASSIGNEE OF CERTAIN CLAIMS FOR WAGES, PETITIONED THE DISTRICT COURT FOR
REVIEW OF AN ORDER OF THE REFEREE IN BANKRUPTCY WHICH GAVE CERTAIN TAX
LIENS OF THE UNITED STATES PRIORITY OVER ALL OTHER CLAIMANTS AGAINST
THE ESTATE OF A BANKRUPT AFTER PAYMENT OF THE EXPENSES OF
ADMINISTRATION.  THE DISTRICT COURT ADOPTED THE FINDINGS OF FACT AND
CONCLUSIONS OF THE REFEREE AND ENTERED JUDGMENT THEREON.  THE COURT OF
APPEALS REVERSED.  165 F.2D 155.  THIS COURT GRANTED CERTIORARI.  333
U.S. 860.  REVERSED, P. 131. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE DEALS WITH THE QUESTION WHETHER SEC. 67C OF THE BANKRUPTCY
ACT,  FN1  IN DETERMINING PRIORITIES IN THE PAYMENT OF CLAIMS, SPEAKS
AS OF THE TIME OF FILING THE PETITION IN BANKRUPTCY.  THE PRECISE ISSUE
PRESENTED IS WHETHER A TAX CLAIM OF THE UNITED STATES, SECURED BY A
LIEN PERFECTED BEFORE THE BANKRUPTCY OF THE TAXPAYER AND ACCOMPANIED,
AT THE TIME OF THE FILING OF THE PETITION IN BANKRUPTCY, BY THE
COLLECTOR OF INTERNAL REVENUE'S ACTUAL POSSESSION OF THE BANKRUPT'S
PERSONAL PROPERTY, IS REQUIRED BY SEC. 67C OF THE BANKRUPTCY ACT TO BE
POSTPONED IN PAYMENT TO DEBTS OWED BY THE BANKRUPT FOR WAGES TO
CLAIMANTS SPECIFIED IN CLAUSE (2) OF SEC. 64A OF THAT ACT, FN2  BECAUSE
THE COLLECTOR LATER RELINQUISHED POSSESSION OF SUCH PROPERTY TO THE
TRUSTEE OF THE BANKRUPT'S ESTATE FOR SALE BY HIM.  WE HOLD THAT THE
LIEN WAS VALID AND ENTITLED TO PRIORITY OF PAYMENT AS AGAINST THE WAGE
CLAIMS AT THE DATE OF BANKRUPTCY AND THAT THE COLLECTOR'S
RELINQUISHMENT OF POSSESSION OF THE BANKRUPT'S PROPERTY DID NOT CHANGE
THE RESULT. 

THE FACTS ARE UNDISPUTED.  BEFORE MARCH 26, 1946, A COLLECTOR OF
INTERNAL REVENUE OF THE UNITED STATES PERFECTED A STATUTORY LIEN UPON
THE PERSONAL PROPERTY OF THE KESSCO ENGINEERING CORPORATION, A
CALIFORNIA CORPORATION, AND TOOK ACTUAL POSSESSION OF SUCH PROPERTY
PURSUANT TO THAT LIEN.  HE ATTEMPTED TO SELL SUCH ASSETS AND RECEIVED
BIDS FOR THEM BUT DID NOT COMPLETE THE SALE BECAUSE THE PRICE
OBTAINABLE WAS UNSATISFACTORY TO HIM.  HE INSTITUTED A SECOND SALE BUT
ABANDONED IT WHEN HE RELINQUISHED POSSESSION OF THE PROPERTY TO THE
TRUSTEE OF THE BANKRUPT'S ESTATE.  ON MARCH 26, 1946, THE CORPORATION
FILED ITS VOLUNTARY PETITION IN BANKRUPTCY IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, WAS ADJUDICATED
A BANKRUPT AND GEORGE T. GOGGIN (WHO LATER BECAME THE TRUSTEE OF THE
BANKRUPT'S ESTATE AND IS THE PETITIONER HEREIN) WAS APPOINTED
RECEIVER.  HAVING QUALIFIED AS RECEIVER ON MARCH 28, 1946, HE
COMMUNICATED WITH COUNSEL FOR THE COLLECTOR AS TO THE COLLECTOR'S
TURNING OVER TO HIM THE BANKRUPT'S PERSONAL PROPERTY.  IN THIS
CONNECTION, THE REFEREE IN BANKRUPTCY LATER MADE A FINDING OF FACT
WHICH WAS ADOPTED BY THE DISTRICT COURT AND IS AS FOLLOWS: 

"...  THE PERSONAL PROPERTY OF THE BANKRUPT IN THE HANDS OF THE
COLLECTOR OF INTERNAL REVENUE, ...  WAS TURNED OVER TO THE SAID GEORGE
T. GOGGIN, WHO ACCEPTED THE TERMS AND CONDITIONS OF A TELEGRAM FROM J.
P. WENCHEL, CHIEF COUNSEL OF THE BUREAU OF INTERNAL REVENUE, READING AS
FOLLOWS: 

"'REFERENCE TO TELEPHONE CONVERSATION TODAY WITH MR. WEBB (MEMBER OF
THE LOS ANGELES OFFICE OF INTERNAL REVENUE) RELATIVE TO KESSCO
ENGINEERING CORPORATION, BANKRUPT, NO OBJECTION BY THIS OFFICE TO
COLLECTOR RELINQUISHING PERSONAL PROPERTY TO TRUSTEE FOR SALE. 
GOVERNMENT'S LIEN TO ATTACH TO PROCEEDS FROM SALE SUBJECT TO TRUSTEE'S
EXPENSES INCLUDING COSTS OF SALE. 

             J. P. WENCHEL, CHIEF COUNSEL.'" 

GOGGIN, IN HIS FINAL CAPACITY AS TRUSTEE FOR THE BANKRUPT, CAUSED
THESE ASSETS TO BE SOLD AT PUBLIC AUCTION, PURSUANT TO ORDER OF COURT. 
HAVING LIQUIDATED ALL ASSETS WHICH HAD COME INTO HIS POSSESSION, HE HAD
ON HAND, ON DECEMBER 12, 1946, ABOUT $31,206.20, WHICH THE REFEREE
CERTIFIED WAS INSUFFICIENT TO PAY IN FULL THE EXPENSES OF
ADMINISTRATION, THE LIEN CLAIMS, THE PRIOR LABOR CLAIMS AND PRIOR TAX
CLAIMS IN THE CASE.  THE GROSS AMOUNT OF THE AMENDED CLAIM OF THE
COLLECTOR FOR TAXES, PENALTIES AND INTEREST WAS $78,865.03.  THE PRIOR
WAGE CLAIMS TOTALED $3,424.87.  THE DEPARTMENT OF EMPLOYMENT OF THE
STATE OF CALIFORNIA ALSO FILED A TAX CLAIM FOR $15,135, WHICH WAS
RECORDED AS A LIEN ON OR ABOUT DECEMBER 24, 1945.  NEITHER THE VALIDITY
NOR THE AMOUNT OF ANY OF THESE CLAIMS IS IN ISSUE HERE.  FN3 

THE PRESENT PROCEEDING ORIGINATED IN A PETITION FILED WITH THE
REFEREE IN BANKRUPTCY BY THE TRUSTEE, SEEKING AN ORDER TO SHOW CAUSE
WHY THE ORDER OF PRIORITY OF THE PAYMENT OF THE TAX AND PRIOR WAGE
CLAIMS AND THE EXPENSES OF ADMINISTRATION SHOULD NOT BE DETERMINED BY
THE DISTRICT COURT.  THE REFEREE MADE FINDINGS OF FACT AND REACHED
CONCLUSIONS OF LAW UPON THE BASIS OF WHICH HE ORDERED THAT, FROM THE
MONIES IN THE POSSESSION OF THE TRUSTEE, THERE FIRST BE PAID THE
EXPENSES OF ADMINISTRATION AND THAT THE BALANCE OF SUCH FUNDS THEN IN
THE HANDS OF THE TRUSTEE BE PAID TO THE COLLECTOR OF INTERNAL REVENUE
IN PARTIAL PAYMENT OF THE GOVERNMENT'S TAX CLAIMS AND THE INTEREST
THEREON AS PRESCRIBED BY LAW.  FN4  THE DISTRICT COURT ADOPTED THE
FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE REFEREE AND ENTERED
JUDGMENT THEREON.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED
THAT JUDGMENT AND HELD THAT, BY VIRTUE OF THE COLLECTOR'S
RELINQUISHMENT OF HIS POSSESSION OF THE PERSONAL PROPERTY OF THE
BANKRUPT, THE TAXES DUE TO THE UNITED STATES MUST BE POSTPONED, IN
PAYMENT, TO THE DEBTS OF THE BANKRUPT FOR CERTAIN WAGE CLAIMS, PURSUANT
TO SEC. 67C OF THE BANKRUPTCY ACT.  165 F.2D 155.  BECAUSE OF THE
IMPORTANCE OF THE ISSUE IN THE ADMINISTRATION OF THE BANKRUPTCY ACT, WE
GRANTED CERTIORARI.  333 U.S. 860. 

THE BANKRUPT FILED ITS PETITION AND WAS ADJUDICATED A BANKRUPT ON
MARCH 26, 1946.  THE PERSONAL PROPERTY OF THE BANKRUPT WAS THEN SUBJECT
TO THE PERFECTED STATUTORY LIEN OF THE UNITED STATES FOR TAXES AND THAT
LIEN WAS ACCOMPANIED BY THE ACTUAL PHYSICAL POSSESSION OF THE PROPERTY
BY A COLLECTOR OF INTERNAL REVENUE ON BEHALF OF THE UNITED STATES. 
THOSE FACTS COMPLETELY SATISFY SEC. 67C OF THE BANKRUPTCY ACT.  FN5
SUBSEQUENT EVENTS, SUCH AS THE RELINQUISHMENT OF HIS POSSESSION BY THE
COLLECTOR IN FAVOR OF THE TRUSTEE OF THE BANKRUPT'S ESTATE FOR THE
PURPOSE OF FACILITATING A SALE OF THE PROPERTY BY THE TRUSTEE, ARE NOT
MATERIAL TO THE DETERMINATION OF THE ISSUE BEFORE US.  FN6  THE TERMS
UNDER WHICH THE COLLECTOR'S POSSESSION WAS RELINQUISHED ARE CONSISTENT
WITH AND SUPPORT THIS RESULT BUT THE GOVERNMENT'S RIGHT TO PAYMENT
AHEAD OF THE WAGE CLAIMS WAS DETERMINED AT THE TIME OF BANKRUPTCY AND
DID NOT ARISE OUT OF THE ARRANGEMENT UNDER WHICH POSSESSION WAS
RELINQUISHED TO THE TRUSTEE. 

THIS GENERAL POINT OF VIEW IN INTERPRETING THE BANKRUPTCY ACT IS ONE
OF LONG STANDING.  IN EVERETT V. JUDSON, 228 U.S. 474, 479, THIS COURT
SAID: 

"WE THINK THAT THE PURPOSE OF THE LAW WAS TO FIX THE LINE OF CLEAVAGE
WITH REFERENCE TO THE CONDITION OF THE BANKRUPT ESTATE AS OF THE TIME
AT WHICH THE PETITION WAS FILED AND THAT THE PROPERTY WHICH VESTS IN
THE TRUSTEE AT THE TIME OF ADJUDICATION IS THAT WHICH THE BANKRUPT
OWNED AT THE TIME OF THE FILING OF THE PETITION." 

SEE ALSO, MYERS V. MATLEY, 318 U.S. 622, 626; UNITED STATES V.
MARXEN, 307 U.S. 200, 207-208; ACME HARVESTER CO. V. BEEKMAN LUMBER
CO., 222 U.S. 300, 307.  FN7 

WHILE SEC. 67C WAS ADDED TO THE BANKRUPTCY ACT BY THE CHANDLER ACT IN
1938, WE FIND NOTHING IN IT OR IN ITS LEGISLATIVE HISTORY TO SUGGEST AN
ABANDONMENT OF THE UNDERLYING POINT OF VIEW AS TO THE TIME AS OF WHICH
IT SPEAKS AND THE GENERAL PURPOSE OF CONGRESS TO CONTINUE TO SAFEGUARD
INTERESTS UNDER LIENS PERFECTED BEFORE BANKRUPTCY.  CITY OF RICHMOND V.
BIRD, 249 U.S. 174; IN RE KNOX-POWELL-STOCKTON CO., 100 F.2D 979; IN RE
VAN WINKLE, 49 F.SUPP.  711.  WHILE SEC. 64, AS AMENDED, SOMEWHAT
READJUSTS PRIORITIES AMONG UNSECURED CLAIMS, SEC. 67 CONTINUES TO
RECOGNIZE THE VALIDITY OF LIENS PERFECTED BEFORE BANKRUPTCY AS AGAINST
UNSECURED CLAIMS.  SECTION 67B HAS CLARIFIED THE VALIDITY OF STATUTORY
LIENS, INCLUDING THOSE FOR TAXES, EVEN THOUGH ARISING OR PERFECTED
WHILE THE DEBTOR IS INSOLVENT AND WITHIN FOUR MONTHS OF THE FILING OF
THE PETITION IN BANKRUPTCY.  IT EXPRESSLY RECOGNIZES THAT THE VALIDITY
OF LIENS EXISTING AT THE TIME OF FILING A PETITION IN BANKRUPTCY MAY BE
PERFECTED UNDER SOME CIRCUMSTANCES AFTER BANKRUPTCY.  SECTION 67C, AS
AMENDED IN 1938, DOES, HOWEVER, INTRODUCE A NEW POSTPONEMENT IN THE
PAYMENT OF CERTAIN CLAIMS SECURED BY LIENS TO THE PAYMENT OF OTHER
CLAIMS SPECIFIED IN CLAUSES (1)(FOR CERTAIN ADMINISTRATIVE EXPENSES,
ETC.) AND (2)(FOR CERTAIN WAGES) OF SEC. 64A.  THIS SUBORDINATION IS,
HOWEVER, SHARPLY LIMITED.  FOR EXAMPLE, IT DOES NOT APPLY TO STATUTORY
LIENS ON REAL PROPERTY, OR TO THOSE ACTUALLY ENFORCED BY SALE BEFORE
BANKRUPTCY, OR, IN GENERAL, TO LIENS ON PERSONAL PROPERTY WHEN
ACCOMPANIED BY ACTUAL POSSESSION OF SUCH PROPERTY.  THE BACKGROUND OF
SEC. 67C SUGGESTS A CONSCIOUS PURPOSE TO GIVE A NARROWLY LIMITED
PRIORITY TO ADMINISTRATIVE EXPENSES AND TO CERTAIN WAGE CLAIMS, AT
LEAST IN INSTANCES DISCLOSING ACCUMULATIONS OF UNPAID TAXES THE
PRIORITY OF WHICH WAGE EARNERS HAD NO GOOD REASON TO SUSPECT, AND WHICH
MIGHT ABSORB THE ENTIRE ESTATE OF THE BANKRUPT UNLESS POSTPONED BY
THESE PROVISIONS.  FN8  THE PURPOSE OF SEC. 67 IN REQUIRING A PUBLIC
WARNING OF THE EXISTENCE OF AN ENFORCEABLE STATUTORY LIEN FOR TAXES WAS
SERVED IN THE INSTANT CASE NOT ONLY BY THE STEPS TAKEN TO PERFECT THE
GOVERNMENT'S LIEN BUT BY THE COLLECTOR'S SEIZURE AND ACTUAL POSSESSION
OF THE PERSONAL PROPERTY OF THE TAXPAYER BEFORE THE FILING OF THE
TAXPAYER'S PETITION IN BANKRUPTCY. 

THE VALIDITY OF THE LIEN FOR TAXES AS AGAINST THE WAGE CLAIMANTS WAS
THUS ESTABLISHED AT THE TIME OF THE FILING OF THE PETITION IN
BANKRUPTCY AND THE COLLECTOR'S POSSESSION OF THE PERSONAL PROPERTY OF
THE BANKRUPT EXCLUDED THE APPLICATION OF SEC. 67C WHICH OTHERWISE WOULD
HAVE POSTPONED THE PAYMENT OF THE TAX CLAIMS TO THE PAYMENT OF THE
CLAIMS FOR ADMINISTRATIVE EXPENSES AND WAGES SPECIFIED IN CLAUSES (1)
AND (2) OF SEC. 64A.  BY HIS SUBSEQUENT ARRANGEMENT WITH THE TRUSTEE
FOR THE SALE OF THE BANKRUPT'S PROPERTY, THE COLLECTOR DID NOT LOSE THE
RIGHT TO PRIORITY OF PAYMENT ACCORDED TO THE PERFECTED TAX LIENS, AT
THE TIME OF BANKRUPTCY, AS AGAINST THE WAGE CLAIMS. 

THE ARRANGEMENT BETWEEN THE COLLECTOR AND THE TRUSTEE WAS A NATURAL
AND PROPER ONE.  WHILE THE AMENDED CLAIM FOR TAXES, PENALTIES AND
INTEREST, DATED AUGUST 28, 1946, AMOUNTED TO $78,865.03, THE ORIGINAL
CLAIM, FILED WITH THE NOTICES OF LIEN PRIOR TO MARCH 26, 1946, AMOUNTED
TO ONLY $40,921.94(EVEN INCLUDING THE INTEREST AND COSTS LATER COMPUTED
TO AUGUST 21, 1946).  OF THIS SUM THE TAXES THEMSELVES AMOUNTED ONLY TO
$34,848.04.  TO MEET THIS, THE TRUSTEE OF THE BANKRUPT'S ESTATE, ON
DECEMBER 12, 1946, HAD ON HAND $31,206.20, EVIDENTLY DERIVED FROM THE
SALE OF THE PROPERTY ORIGINALLY HELD BY THE COLLECTOR.  THESE FIGURES,
ACCORDINGLY, SUGGEST THE POSSIBILITY THAT, IN MARCH, 1946, IT
REASONABLY MAY HAVE BEEN SUPPOSED THAT A SURPLUS ABOVE THE AMOUNT OF
THE GOVERNMENT'S TAX CLAIM MIGHT BE REALIZED FROM THE SALE OF THE
ASSETS THEN IN THE POSSESSION OF THE COLLECTOR.  IN THAT EVENT, IT
WOULD HAVE BEEN THE OBVIOUSLY APPROPRIATE PROCEDURE FOR THE TRUSTEE TO
SELL THAT PROPERTY FREE AND CLEAR OF LIENS AND ENCUMBRANCES AND THEN
DISTRIBUTE THE PROCEEDS TO THE RIGHTFUL CLAIMANTS.  EVEN THOUGH THERE
WAS LITTLE OR NO PROSPECT OF REALIZING SUCH A SURPLUS, IT WAS
REASONABLE AND APPROPRIATE FOR THE TRUSTEE, WITH THE CONSENT OF THE
LIEN HOLDER, THUS TO SELL THE PROPERTY AND DISTRIBUTE ITS PROCEEDS. 
SEE VAN HUFFEL V. HARKELRODE, 284 U.S. 225; 6 REMINGTON ON BANKRUPTCY
SECS. 2577-2578(4TH ED. 1937).  FN9  THE PROPRIETY OF THE PRESENT
CONCLUSION IS EMPHASIZED BY THE FACT THAT THE OPPOSITE CONCLUSION
WOULD, IN MANY OTHER CASES, OPERATE TO THE DETRIMENT BOTH OF UNSECURED
CREDITORS AND OF THE STATUTORY LIEN HOLDERS.  IT WOULD COMPEL A LIEN
HOLDER TO RETAIN HIS ACTUAL POSSESSION OF THE PROPERTY IN ORDER TO BE
SURE OF HIS FULL PRIORITY IN THE PAYMENT OF HIS TAX CLAIM.  HE WOULD BE
COMPELLED TO DO THIS, EVEN THOUGH BY DOING SO THE BANKRUPT'S PROPERTY
PROBABLY WOULD YIELD A SMALLER SALES PRICE THAN IF SOLD BY THE
TRUSTEE.  FURTHERMORE, THE LIEN HOLDER WOULD BE BROUGHT INTO SHARP
CONFLICT WITH THE TRUSTEE WHENEVER THERE WAS REASON TO SUPPOSE THAT THE
PROCEEDS OF THE SALE MIGHT EQUAL OR EXCEED THE TAX CLAIMS SECURED BY
THE LIEN.  UNDER SUCH CIRCUMSTANCES THE BANKRUPTCY COURT GENERALLY MAY
ORDER THE SALE OF THE BANKRUPT'S PROPERTY BY THE TRUSTEE, FREE AND
CLEAR OF LIENS AND ENCUMBRANCES.  SEE 4 COLLIER ON BANKRUPTCY SECS.
70.97, 70.99(14TH ED. 1942); 6 REMINGTON ON BANKRUPTCY SEC. 2583(4TH
ED. 1937).  ACCORDINGLY, WE FIND NO SUBSTANTIAL SUPPORT FOR THE
ARGUMENT THAT THE LIEN HOLDER'S VOLUNTARY RELINQUISHMENT OF HIS
POSSESSION OF THE BANKRUPT'S PROPERTY, IN FAVOR OF THE BANKRUPT'S
TRUSTEE, FOR THE PURPOSE OF PERMITTING THE TRUSTEE TO SELL THE PROPERTY
IN THIS CASE, MUST CARRY WITH IT, AS A MATTER OF LAW, A POSTPONEMENT OF
THE PAYMENT OF THE LIEN HOLDER'S TAX CLAIM TO THAT OF THE CLAIMS FOR
WAGES HERE PRESENTED.    FOR THESE REASONS THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED. 

FN1  AS SEC. 67B IS REFERRED TO IN SEC. 67C AND IS MATERIAL TO ITS
INTERPRETATION, BOTH SUBDIVISIONS OF SEC. 67 ARE QUOTED BELOW: 

"SEC. 67.  LIENS AND FRAUDULENT TRANSFERS.  - ... 

"B.  THE PROVISIONS OF SECTION 60 OF THIS ACT TO THE CONTRARY
NOTWITHSTANDING, STATUTORY LIENS IN FAVOR OF EMPLOYEES, CONTRACTORS,
MECHANICS, LANDLORDS, OR OTHER CLASSES OF PERSONS, AND STATUTORY LIENS
FOR TAXES AND DEBTS OWING TO THE UNITED STATES OR ANY STATE OR
SUBDIVISION THEREOF, CREATED OR RECOGNIZED BY THE LAWS OF THE UNITED
STATES OR OF ANY STATE, MAY BE VALID AGAINST THE TRUSTEE, EVEN THOUGH
ARISING OR PERFECTED WHILE THE DEBTOR IS INSOLVENT AND WITHIN FOUR
MONTHS PRIOR TO THE FILING OF THE PETITION IN BANKRUPTCY OR OF THE
ORIGINAL PETITION UNDER CHAPTER X, XI, XII, OR XIII OF THIS ACT, BY OR
AGAINST HIM.  WHERE BY SUCH LAWS SUCH LIENS ARE REQUIRED TO BE
PERFECTED AND ARISE BUT ARE NOT PERFECTED BEFORE BANKRUPTCY, THEY MAY
NEVERTHELESS BE VALID, IF PERFECTED WITHIN THE TIME PERMITTED BY AND IN
ACCORDANCE WITH THE REQUIREMENTS OF SUCH LAWS, EXCEPT THAT IF SUCH LAWS
REQUIRE THE LIENS TO BE PERFECTED BY THE SEIZURE OF PROPERTY, THEY
SHALL INSTEAD BE PERFECTED BY FILING NOTICE THEREOF WITH THE COURT. 

"C.  WHERE NOT ENFORCED BY SALE BEFORE THE FILING OF A PETITION IN
BANKRUPTCY OR OF AN ORIGINAL PETITION UNDER CHAPTER X, XI, XII, OR XIII
OF THIS ACT, THOUGH VALID UNDER SUBDIVISION B OF THIS SECTION,
STATUTORY LIENS, INCLUDING LIENS FOR TAXES OR DEBTS OWING TO THE UNITED
STATES OR TO ANY STATE OR SUBDIVISION THEREOF, ON PERSONAL PROPERTY NOT
ACCOMPANIED BY POSSESSION OF SUCH PROPERTY, AND LIENS WHETHER STATUTORY
OR NOT, OF DISTRESS FOR RENT SHALL BE POSTPONED IN PAYMENT TO THE DEBTS
SPECIFIED IN CLAUSES (1) AND (2) OF SUBDIVISION A OF SECTION 64 OF THIS
ACT, AND, EXCEPT AS AGAINST OTHER LIENS, SUCH LIENS FOR WAGES OR FOR
RENT SHALL BE RESTRICTED IN THE AMOUNT OF THEIR PAYMENT TO THE SAME
EXTENT AS PROVIDED FOR WAGES AND RENT RESPECTIVELY IN SUBDIVISION A OF

     .         .         .         .         . 

BANKRUPTCY ACT OF 1898, C. 541, 30 STAT. 544, 564, AS AMENDED BY THE
CHANDLER ACT OF JUNE 22, 1938, C. 575, 52 STAT. 840, 875-877, 11 U.S.C.
SEC. 107(B) AND (C). 

FN2  NOT ONLY THE PORTIONS OF SEC. 64A SPECIFYING THE WAGES HERE IN
CONTROVERSY BUT THOSE OTHERWISE RELATED TO THE ISSUES OF THIS CASE ARE
QUOTED BELOW: 

"SEC. 64.  DEBTS WHICH HAVE PRIORITY.  - A. THE DEBTS TO HAVE
PRIORITY, IN ADVANCE OF THE PAYMENT OF DIVIDENDS TO CREDITORS, AND TO
BE PAID IN FULL OUT OF BANKRUPT ESTATES, AND THE ORDER OF PAYMENT,
SHALL BE (1) THE ACTUAL AND NECESSARY COSTS AND EXPENSES OF PRESERVING
THE ESTATE SUBSEQUENT TO FILING THE PETITION; THE FEES FOR THE
REFEREES' SALARY FUND AND FOR THE REFEREES' EXPENSE FUND; THE FILING
FEES PAID BY CREDITORS IN INVOLUNTARY CASES; WHERE PROPERTY OF THE
BANKRUPT, TRANSFERRED OR CONCEALED BY HIM EITHER BEFORE OR AFTER THE
FILING OF THE PETITION, SHALL HAVE BEEN RECOVERED FOR THE BENEFIT OF
THE ESTATE OF THE BANKRUPT BY THE EFFORTS AND AT THE COST AND EXPENSE
OF ONE OR MORE CREDITORS, THE REASONABLE COSTS AND EXPENSES OF SUCH
RECOVERY; THE COSTS AND EXPENSES OF ADMINISTRATION, INCLUDING THE
TRUSTEE'S EXPENSES IN OPPOSING THE BANKRUPT'S DISCHARGE, THE FEES AND
MILEAGE PAYABLE TO WITNESSES AS NOW OR HEREAFTER PROVIDED BY THE LAWS
OF THE UNITED STATES, AND ONE REASONABLE ATTORNEY'S FEE, FOR THE
PROFESSIONAL SERVICES ACTUALLY RENDERED, IRRESPECTIVE OF THE NUMBER OF
ATTORNEYS EMPLOYED, TO THE PETITIONING CREDITORS IN INVOLUNTARY CASES
AND TO THE BANKRUPT IN VOLUNTARY AND INVOLUNTARY CASES, AS THE COURT
MAY ALLOW; (2) WAGES, NOT TO EXCEED $600 TO EACH CLAIMANT, WHICH HAVE
BEEN EARNED WITHIN THREE MONTHS BEFORE THE DATE OF THE COMMENCEMENT OF
THE PROCEEDING, DUE TO WORKMEN, SERVANTS, CLERKS, OR TRAVELING OR CITY
SALESMEN ON SALARY OR COMMISSION BASIS, WHOLE OR PART TIME, WHETHER OR
NOT SELLING EXCLUSIVELY FOR THE BANKRUPT; ...  (4) TAXES LEGALLY DUE
AND OWING BY THE BANKRUPT TO THE UNITED STATES OR ANY STATE OR ANY
SUBDIVISION THEREOF:  PROVIDED, THAT NO ORDER SHALL BE MADE FOR THE
PAYMENT OF A TAX ASSESSED AGAINST ANY PROPERTY OF THE BANKRUPT IN
EXCESS OF THE VALUE OF THE INTEREST OF THE BANKRUPT ESTATE THEREIN AS
DETERMINED BY THE COURT:  AND PROVIDED FURTHER, THAT, IN CASE ANY
QUESTION ARISES AS TO THE AMOUNT OR LEGALITY OF ANY TAXES, SUCH
QUESTION SHALL BE HEARD AND DETERMINED BY THE COURT; AND (5) DEBTS
OWING TO ANY PERSON, INCLUDING THE UNITED STATES, WHO BY THE LAWS OF
THE UNITED STATES IN (IS) ENTITLED TO PRIORITY, AND RENT OWING TO A
LANDLORD WHO IS ENTITLED TO PRIORITY BY APPLICABLE STATE LAW:
PROVIDED, HOWEVER, THAT SUCH PRIORITY FOR RENT TO A LANDLORD SHALL BE
RESTRICTED TO THE RENT WHICH IS LEGALLY DUE AND OWING FOR THE ACTUAL
USE AND OCCUPANCY OF THE PREMISES AFFECTED, AND WHICH ACCRUED WITHIN
THREE MONTHS BEFORE THE DATE OF BANKRUPTCY." 

     .      .         .         .         . 

BANKRUPTCY ACT OF 1898, C. 541, 30 STAT. 544, 563, AS AMENDED BY THE
CHANDLER ACT OF JUNE 22, 1938, C. 575, 52 STAT. 840, 874, AND 60 STAT.
323, 330, 11 U.S.C. SEC. 104(A). 

FN3  THERE IS NO ISSUE HERE AS TO THE AMOUNT OF PENALTIES OR INTEREST
INCLUDED IN THE COLLECTOR'S CLAIM FOR TAXES OR AS TO THE DATE TO WHICH
INTEREST ON SUCH CLAIM SHALL BE COMPUTED.  THERE IS NO ISSUE HERE AS TO
ANY DIFFERENCE BETWEEN STATUTORY LIENS WHICH WERE PERFECTED MORE THAN
FOUR MONTHS BEFORE THE FILING OF THE PETITION IN BANKRUPTCY OR THOSE
PERFECTED WITHIN LESS THAN THAT TIME.  AS THE LIEN CLAIMED BY THE
UNITED STATES EXCEEDS THE FUNDS AVAILABLE, IT HAS FILED ITS BRIEF IN
THIS COURT AS THE SOLE REAL PARTY IN INTEREST AND IN OPPOSITION TO THE
WAGE CLAIMS.  THE RESPONDENT, DIVISION OF LABOR LAW ENFORCEMENT OF THE
STATE OF CALIFORNIA, APPEARS ON BEHALF OF ALL OF THE LABOR CLAIMANTS. 
THERE ALSO IS NO ISSUE HERE AS TO THE AMOUNT TO BE PAID FOR THE
EXPENSES OF ADMINISTRATION OR THE ITEMS WHICH SUCH EXPENSES MAY INCLUDE
IN ADDITION TO THE COSTS OF THE SALE MADE BY THE TRUSTEE. 

FN4  PROVISION, NOT MATERIAL HERE, WAS MADE THAT, IF ADDITIONAL MONEY
CAME INTO THE POSSESSION OF THE TRUSTEE, THE COURT, UPON NOTICE TO ALL
NECESSARY AND PROPER PARTIES, SHOULD DETERMINE THE RESPECTIVE LIENS OR
PRIORITIES, IF ANY THERE BE, OF THE COLLECTOR OF INTERNAL REVENUE, THE
PRIOR LABOR CLAIMANTS, THE DEPARTMENT OF EMPLOYMENT OF THE STATE OF
CALIFORNIA AND OTHER TAX CLAIMANTS ENTITLED TO BE HEARD. 

FN5  SEE NOTE 1, SUPRA. 

FN6  SEE DAVIS V. CITY OF NEW YORK, 119 F.2D 559.  IN THAT CASE THE
CITY PERFECTED ITS LIEN FOR RETAIL SALES TAXES BY SEIZURE OF ASSETS OF
THE TAXPAYER, MAY 16, 1939.  AN INVOLUNTARY PETITION IN BANKRUPTCY WAS
FILED, JUNE 7, 1939, AGAINST THE TAXPAYER AND IT WAS ADJUDICATED A
BANKRUPT, JUNE 17, 1939.  THE ASSETS WERE THEREAFTER SOLD IN EXECUTION
OF THE WARRANT ISSUED BY THE CITY TREASURER.  THE LEVY WAS HELD TO BE A
VALID STATUTORY LEVY AS AGAINST THE TRUSTEE OF THE BANKRUPT'S ESTATE
AND THE CITY WAS ALLOWED TO RETAIN THE PROCEEDS OF THE SALE, UNDER
SECS. 67B AND 67C OF THE BANKRUPTCY ACT, AS AMENDED IN 1938.  FOR A
CONVERSE SITUATION SEE CITY OF NEW YORK V. HALL, 139 F.2D 935.  IN THAT
CASE THE CITY PERFECTED ITS LIEN ON PERSONAL PROPERTY OF THE TAXPAYER,
ARISING OUT OF LONG DELINQUENT BUSINESS AND SALES TAXES, BY THE
DELIVERY OF WARRANTS ON JANUARY 14, 1943, AT 10:15 A.M., TO THE CITY'S
WARRANT AGENT FOR EXECUTION AND LEVY ON THE PROPERTY.  THE ACTUAL LEVY
ON, AND INVENTORY OF, THE PROPERTY AND THE POSTING OF NOTICES OF SALE
WERE NOT EFFECTED UNTIL SHORTLY AFTER 4:30 P.M.  IN THE MEANTIME, AT
4:22 P.M., AN INVOLUNTARY PETITION IN BANKRUPTCY WAS FILED AGAINST THE
TAXPAYER AND UPON THIS HE WAS ADJUDICATED A BANKRUPT.  PURSUANT TO AN
ORDER OF THE BANKRUPTCY COURT, A RECEIVER SOLD THE PROPERTY AND THE
COURT DECLINED TO ORDER THE NET PROCEEDS TO BE TURNED OVER TO THE
CITY.  THE CITY WAS THE HOLDER OF A STATUTORY LIEN BUT, AT THE TIME OF
THE FILING OF THE PETITION IN BANKRUPTCY, THE LIEN WAS NOT ACCOMPANIED
BY ACTUAL POSSESSION OF THE PERSONAL PROPERTY TO WHICH IT ATTACHED. 
IT, THEREFORE, WAS SUBORDINATED, UNDER SEC. 67C OF THE BANKRUPTCY ACT,
TO THE ADMINISTRATION EXPENSES AND WAGES COVERED BY CLAUSES (1) AND (2)
OF SEC. 64A.  "NOTWITHSTANDING THE ADMONITION OF SECTION 67, SUB. C,
THE CITY CHOSE TO SLUMBER ON ITS RIGHTS.  CONGRESS INTENDED TO PENALIZE
SUCH SOMNOLENCE."  ID. AT P. 936. 

FN7  "SECTION 1.  MEANING OF WORDS AND PHRASES.  - THE WORDS AND
PHRASES USED IN THIS ACT AND IN PROCEEDINGS PURSUANT HERETO SHALL,
UNLESS THE SAME BE INCONSISTENT WITH THE CONTEXT, BE CONSTRUED AS
FOLLOWS: 

     .         .         .        .         . 

"(13)  'DATE OF BANKRUPTCY', 'TIME OF BANKRUPTCY', 'COMMENCEMENT OF
PROCEEDINGS', OR 'BANKRUPTCY', WITH REFERENCE TO TIME, SHALL MEAN THE
DATE WHEN THE PETITION WAS FILED; ...  ."  30 STAT. 544, AS AMENDED BY
52 STAT. 840-841. 

"...  THE RIGHTS OF CREDITORS ARE FIXED BY THE BANKRUPTCY ACT AS OF
THE FILING OF THE PETITION IN BANKRUPTCY.  THIS IS TRUE BOTH AS TO THE
BANKRUPT AND AMONG THEMSELVES.  THE ASSETS AT THAT TIME ARE SEGREGATED
FOR THE BENEFIT OF CREDITORS.  THE TRANSFER OF THE ASSETS TO SOMEONE
FOR APPLICATION TO 'THE DEBTS OF THE INSOLVENT, AS THE RIGHTS AND
PRIORITIES OF CREDITORS MAY BE MADE TO APPEAR' (CITING BRAMWELL V. U.S.
FIDELITY & GUARANTY CO., 269 U.S. 483, 490), TAKES PLACE AS OF THAT
TIME."  UNITED STATES V. MARXEN, 307 U.S. 200, 207-208. 

"THE GENERAL RULE IN BANKRUPTCY IS THAT THE FILING OF THE PETITION
FREEZES THE RIGHTS OF ALL PARTIES INTERESTED IN THE BANKRUPT ESTATE. 
EXCEPTIONS ONLY EMPHASIZE THE RULE.  WHATEVER DISAGREEMENT IN OPINION
THERE MAY HAVE BEEN ON THE MATTER PRIOR TO THE ACT OF 1938, IT IS NOW
CLEAR THAT STATUTORY LIENS MAY BE VALID IF THEY ARISE BEFORE BANKRUPTCY
ALTHOUGH THEY ARE PERFECTED AFTER BANKRUPTCY, IF THE PERFECTION IS
WITHIN THE TIME PERMITTED BY AND IN ACCORDANCE WITH THE REQUIREMENTS OF
APPLICABLE LAW."  4 COLLIER ON BANKRUPTCY 228-229(14TH ED. 1942). 

FN8  THESE PROVISIONS APPARENTLY ORIGINATED IN AMENDMENTS PROPOSED BY
THE NATIONAL BANKRUPTCY CONFERENCE WHICH WERE BEFORE CONGRESS IN A
COMMITTEE REPORT ANALYSIS OF H.R. 12889, 74TH CONG., 2D SESS. (1936). 
THIS REPORT STATES THAT THE BILL WAS INTRODUCED BY MR. CHANDLER, MAY
28, 1936, CONTAINING AMENDMENTS PROPOSED BY THE NATIONAL BANKRUPTCY
CONFERENCE, AND THE SEVERAL SECTIONS ARE ACCOMPANIED BY EXPLANATORY
NOTES.  SECTION 67C, AS THERE PROPOSED, RESEMBLES SUBSTANTIALLY THE
JACOB I. WEINSTEIN, A MEMBER OF THE CONFERENCE, INCLUDES THE FOLLOWING
STATEMENT: 

"SECTION 64(OF THE BANKRUPTCY ACT BEFORE AMENDMENT BY THE CHANDLER
ACT) IS DECLARATORY OF A POLICY THAT THE COSTS AND EXPENSES IN
CONNECTION WITH A BANKRUPTCY PROCEEDING AND ITS ADMINISTRATION SHALL BE
FIRST PAID IN DISTRIBUTION.  IT IS A SOUND POLICY AND IS IN ACCORDANCE
WITH THE GENERAL PRINCIPLES WELL ESTABLISHED IN LIQUIDATION
PROCEEDINGS.  BUT SECTION 67 OF THE ACT DOES NOT APPLY THE SAME
LIMITATION WITH RESPECT TO VALID LIENS.  THE SUPREME COURT, IN THE CASE
OF CITY OF RICHMOND V. BIRD, (249 U.S. 174,) 43 A.B.R. 260(1919),
RESOLVED THE CONFLICT IN THE LOWER COURT DECISIONS BY HOLDING THAT THE
PRIORITY PROVISIONS OF SECTION 64 DO NOT APPLY TO LIENS VALID UNDER

"IT IS SIGNIFICANT THAT IN RECENT YEARS STATE LEGISLATURES HAVE BEEN
ENACTING SPECIAL LEGISLATION IN FAVOR OF TAX CLAIMS, PUBLIC DEBTS, AND
A VARIETY OF PRIVATE CLAIMS.  STATISTICS IN THE BANKRUPTCY CASES SHOW
THAT THE EFFECTIVE ADMINISTRATION OF THE BANKRUPTCY LAW HAS SERIOUSLY
SUFFERED THEREFROM.  SUCH CLAIMS, PARTICULARLY TAX LIENS, OFTEN CONSUME
THE ENTIRE ESTATE, LEAVING NOTHING FOR THE PAYMENT OF THE COSTS AND
EXPENSES OF ADMINISTRATION INCURRED IN REDUCING THE ASSETS TO CASH.  IN
MANY SUCH CASES THE TAX LIENS REPRESENT AN ACCUMULATION OF DELINQUENT
ITEMS COVERING A LONG PERIOD OF TIME, WITHOUT ANY ATTEMPT ON THE PART
OF TAX COLLECTORS TO ENFORCE PAYMENT PRIOR TO THE BANKRUPTCY
PROCEEDING. 

"THERE IS THEREFORE NEED FOR A PROVISION TO PROTECT THE
ADMINISTRATION COSTS AND EXPENSES; AND SIMILAR CONSIDERATIONS APPLY TO
WAGE CLAIMS.  ACCORDINGLY WE HAVE SELECTED, FROM AMONG THE PRIORITIES
FIXED BY SECTION 64(AS REVISED), THESE PARTICULAR ITEMS FOR
PROTECTION.  HOWEVER, BY REASON OF THE HISTORICAL DEVELOPMENT AND THE
INHERENT DIFFERENCES EXISTING IN THE INCIDENTS ATTACHING TO REAL AND
PERSONAL PROPERTY, IT WOULD SEEM ADVISABLE TO RESTRICT THE REMEDY THUS
PROVIDED TO LIENS ON PERSONAL PROPERTY, WHERE SUCH LIENS HAVE NOT BEEN
ENFORCED BY SALE PRIOR TO BANKRUPTCY."  ID. AT P. 212 N. 1. 

AT THAT TIME THE BILL DID NOT ALSO EXCEPT FROM SUBORDINATION
STATUTORY TAX LIENS ON PERSONAL PROPERTY "ACCOMPANIED BY POSSESSION OF
SUCH PROPERTY."  THE ADDITION OF THAT CLAUSE GIVES IT SPECIAL EMPHASIS
AND SUGGESTS ITS APPROPRIATE EFFECT AS A WARNING TO OTHER CLAIMANTS
THAT THE PROPERTY, SO POSSESSED, WILL NOT BE AVAILABLE IN THE FIRST
INSTANCE FOR THE ADMINISTRATIVE EXPENSES AND WAGE CLAIMS SPECIFIED IN
CLAUSES (1) AND (2) OF SEC. 64A. 

THE REPORT FILED BY MR. CHANDLER FOR THE COMMITTEE ON THE JUDICIARY,
JULY 29, 1937, TO ACCOMPANY THE BILL THEN KNOWN AS H.R. 8046 MERELY
STATED:  "IN SUBDIVISIONS B AND C STATUTORY LIENS ARE PROTECTED AND
PERMITTED TO BE PERFECTED IF THE TIME ALLOWED BY LAW FOR PERFECTING
THEM HAS NOT EXPIRED."  H.R. REP. NO. 1409, 75TH CONG., 1ST SESS.
34(1937), AND SEE REFERENCES TO SECS. 64 AND 67C ON PP. 9, 15-16. 
SEE ALSO, WEINSTEIN, THE BANKRUPTCY LAW OF 1938(1938): 

"THIS SUBDIVISION IS NEW AND IS DESIGNED TO CORRECT AN INEQUITABLE
CONDITION WHICH EXISTED UNDER THE OLD ACT, PARTICULARLY WITH RESPECT TO
TAX LIENS ALLOWED, THROUGH THE INACTION OF TAX AUTHORITIES, TO BE
ACCUMULATED OVER A LONG PERIOD OF TIME.  FREQUENTLY, SUCH LIENS
CONSUMED THE ENTIRE ESTATE, EVEN TO THE EXCLUSION OF THE COSTS AND
EXPENSES INCURRED IN THE PROCEEDING.  WHILE SUBD. A OF SEC. 64 PROVIDES
FOR PRIORITY OF PAYMENT OF SUCH COSTS AND EXPENSES, SUCH PAYMENT IS
PRIOR ONLY TO THE OTHER UNSECURED DEBTS AND DOES NOT AFFECT OR IMPAIR
VALID LIENS, WHETHER STATUTORY OR OTHERWISE.  BUT TAX CLAIMS MAY TAKE
THE FORM OF UNSECURED DEBTS DUE TO THE SOVEREIGN, AND THUS PAYABLE BY
WAY OF PRIORITY IN THE ORDER AS PROVIDED IN SEC. 64, OR THE FORM OF
LIENS CREATED BY LOCAL STATUTES.  AS INDICATED, IF THE TAX CLAIM TAKES
THE FORM OF A LIEN, OR IS REDUCED TO THE FORM OF A LIEN, IT IS NOT
AFFECTED BY THE PROVISIONS OF SEC. 64.  IN VIEW OF THE INEQUITABLE
CONDITION ABOVE REFERRED TO, THERE WAS NEED FOR A PROVISION TO PROTECT
THE ADMINISTRATION COSTS AND EXPENSES, AND LIKE CONSIDERATIONS OF
PUBLIC POLICY REQUIRED A SIMILAR PROTECTION FOR WAGE CLAIMANTS. 
HOWEVER, THE HISTORICAL DEVELOPMENT, AND THE INHERENT DIFFERENCES IN
THE INCIDENTS ATTACHING TO REAL AND PERSONAL PROPERTY, MADE IT
ADVISABLE TO RESTRICT THE REMEDY PROVIDED BY THIS PARAGRAPH TO LIENS ON
PERSONAL PROPERTY; BUT, IN RESPECT EVEN TO PERSONAL PROPERTY, THE
PROVISIONS ARE APPLICABLE ONLY WHERE THE PROPERTY HAS NOT BEEN REDUCED
TO POSSESSION OR WHERE THE LIENS HAVE NOT BEEN ENFORCED BY SALE PRIOR
TO BANKRUPTCY."  (AT PP. 144-145.) 

FN9  THE ONLY QUESTION THEN ARISING WOULD BE AS TO THE EXTENT TO
WHICH THE TRUSTEE MIGHT DEDUCT FROM THOSE PROCEEDS HIS GENERAL EXPENSES
OF ADMINISTRATION, AS WELL AS THE COSTS OF THE SALE ITSELF.  THIS
QUESTION WAS TOUCHED UPON IN THE AGREEMENT WITH THE TRUSTEE BUT NO
ISSUE IS PRESENTED HERE AS TO IT.
..END :























KLAPPROTT V. UNITED STATES, 335 U.S. 601 


NO. 42.  ARGUED OCTOBER 20, 1948.  - DECIDED JANUARY 17, 1949.  - 166
F.2D 273, REVERSED. 


NINE YEARS AFTER PETITIONER HAD BEEN ADMITTED TO CITIZENSHIP AND
GRANTED A CERTIFICATE OF NATURALIZATION, THE UNITED STATES FILED A
COMPLAINT IN A FEDERAL DISTRICT COURT IN NEW JERSEY, UNDER 8 U.S.C.
SEC. 738, TO SET ASIDE THE ORDER AND CANCEL THE CERTIFICATE.  IT
ALLEGED THAT HIS OATH OF ALLEGIANCE WAS FALSE; THAT SUBSEQUENTLY BY
WRITINGS AND SPEECHES HE HAD EVIDENCED HIS LOYALTY TO GERMANY AND
DISLOYALTY TO THE UNITED STATES; AND THAT HE WAS A LEADER AND A MEMBER
OF THE GERMAN AMERICAN BUND AND OTHER SUBVERSIVE ORGANIZATIONS.  HE WAS
SERVED WITH NOTICE, BUT FAILED TO ANSWER WITHIN SIXTY DAYS AS REQUIRED
BY 8 U.S.C. SEC. 738(B).  (SEVEN DAYS BEFORE EXPIRATION OF THE SIXTY
DAYS, HE WAS ARRESTED ON FEDERAL CRIMINAL CHARGES AND CONFINED IN A NEW
YORK JAIL.)  WITHOUT HEARINGS OR EVIDENCE, THE COURT ENTERED A DEFAULT
JUDGMENT SETTING ASIDE THE ORDER ADMITTING HIM TO CITIZENSHIP AND
CANCELING HIS CERTIFICATE OF NATURALIZATION.  MORE THAN FOUR YEARS
LATER AND WHILE STILL A FEDERAL PRISONER, HE FILED IN THE SAME COURT A
VERIFIED PETITION PRAYING THAT THE DEFAULT JUDGMENT BE SET ASIDE. 
INTER ALIA, HE ALLEGED IN SUBSTANCE THAT, WHILE WRONGFULLY HOLDING HIM
IN NEW YORK, MICHIGAN, AND DISTRICT OF COLUMBIA JAILS, THE GOVERNMENT
CAUSED A DISTRICT COURT IN NEW JERSEY TO REVOKE HIS CITIZENSHIP ON THE
GROUND THAT HE HAD FAILED TO APPEAR AND DEFEND, ALTHOUGH HE WAS AT THE
TIME WITHOUT FUNDS TO HIRE A LAWYER.  THESE ALLEGATIONS WERE UNDENIED. 
THE DISTRICT COURT DISMISSED THE PETITION ON THE GROUND OF LACHES.  THE
COURT OF APPEALS AFFIRMED.  HELD:  THE JUDGMENTS ARE REVERSED AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO SET ASIDE
THE DEFAULT JUDGMENT AND GRANT PETITIONER A HEARING ON THE MERITS OF
THE ISSUES RAISED BY THE DENATURALIZATION COMPLAINT.  PP. 602-608, 615
616.  (THIS JUDGMENT MODIFIED, 336 U.S. 942.) 

KLAPPROTT V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

A FEDERAL DISTRICT COURT ENTERED A DEFAULT JUDGMENT SETTING ASIDE AN
ORDER ADMITTING PETITIONER TO CITIZENSHIP AND CANCELING HIS CERTIFICATE
OF NATURALIZATION.  MORE THAN FOUR YEARS LATER, HE PETITIONED THE SAME
COURT TO SET ASIDE THE DEFAULT JUDGMENT, BUT HIS PETITION WAS DISMISSED
ON THE GROUND OF LACHES.  6 F.R.D. 450.  THE COURT OF APPEALS
AFFIRMED.  166 F.2D 273.  THIS COURT GRANTED CERTIORARI.  334 U.S.
818.  REVERSED, PP. 615-616. 

MR. JUSTICE BLACK ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
THE FOLLOWING OPINION IN WHICH MR. JUSTICE DOUGLAS JOINS. 

THIS CASE RAISES QUESTIONS CONCERNING THE POWER OF FEDERAL DISTRICT
COURTS TO ENTER DEFAULT JUDGMENTS DEPRIVING NATURALIZED PERSONS OF
THEIR CITIZENSHIP WITHOUT HEARINGS OR EVIDENCE, AND TO SET ASIDE
DEFAULT JUDGMENTS UNDER SOME CIRCUMSTANCES FOUR YEARS OR MORE AFTER THE
DEFAULT JUDGMENTS WERE ENTERED. 

THE PETITIONER WAS BORN IN GERMANY.  IN 1933 AFTER A HEARING A NEW
JERSEY STATE COURT ENTERED A JUDGMENT ADMITTING HIM TO UNITED STATES
CITIZENSHIP.  PETITIONER THEN TOOK AN OATH RENOUNCING ALLEGIANCE TO
GERMANY AND PROMISING TO BEAR TRUE FAITH AND ALLEGIANCE TO THE UNITED
STATES, WHEREUPON THE COURT GRANTED HIM A CERTIFICATE OF
NATURALIZATION.  SEE 8 U.S.C. SEC. 735. 

NINE YEARS LATER THE UNITED STATES ATTORNEY, ACTING PURSUANT TO 8
U.S.C. SEC. 738, FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT
OF NEW JERSEY TO SET ASIDE THE STATE COURT'S JUDGMENT AND CANCEL
PETITIONER'S CERTIFICATE OF NATURALIZATION.  THE COMPLAINT ALLEGED
GENERALLY THAT PETITIONER'S OATH OF ALLEGIANCE, ETC., WAS FALSE, THAT
AT THE TIME OF TAKING IT PETITIONER WELL KNEW THAT HE WAS NOT ATTACHED
TO THE PRINCIPLES OF THE UNITED STATES CONSTITUTION, AND THAT HE HAD
NOT IN FACT INTENDED THEREAFTER TO BEAR TRUE ALLEGIANCE TO THE UNITED
STATES OR RENOUNCE AND DISCONTINUE HIS ALLEGIANCE AND FIDELITY TO
GERMANY.  IN PARTICULAR THE COMPLAINT CHARGED NO MORE THAN THAT
PETITIONER SUBSEQUENT TO 1935 HAD EVIDENCED HIS LOYALTY TO GERMANY AND
HIS DISLOYALTY TO THIS COUNTRY BY WRITINGS AND SPEECHES; THAT HE WAS IN
1942 AND HAD BEEN BEFORE THAT TIME A LEADER AND MEMBER OF THE GERMAN
AMERICAN BUND AND OTHER ORGANIZATIONS, THE PRINCIPLES OF WHICH WERE
ALLEGED TO BE INIMICAL TO THE CONSTITUTION OF THE UNITED STATES AND THE
HAPPINESS OF ITS PEOPLE; THAT THESE ORGANIZATIONS WERE PROPAGATED AND
ENCOURAGED BY ENEMIES OF THE UNITED STATES WHO BELIEVED IN THE IDEOLOGY
ENUNCIATED BY ADOLPH HITLER.  FOR THE REQUIREMENT THAT ALLEGATIONS OF
FRAUD BE PARTICULARIZED, SEE RULE 9(B) OF THE RULES OF CIVIL
PROCEDURE. 

PETITIONER, THOUGH SERVED WITH NOTICE MAY 15, 1942, FAILED TO ANSWER
THE COMPLAINT WITHIN SIXTY DAYS AS REQUIRED BY 8 U.S.C. SEC. 738(B). 
BUT ON JULY 7, 1942, BEFORE EXPIRATION OF THE SIXTY DAYS, PETITIONER
WAS ARRESTED AND CONFINED IN A NEW YORK JAIL ON CRIMINAL CHARGES
BROUGHT BY THE UNITED STATES.  ON JULY 17, 1942, THE FEDERAL DISTRICT
COURT OF NEW JERSEY ON MOTION OF THE UNITED STATES ATTORNEY, ENTERED A
JUDGMENT BY DEFAULT AGAINST PETITIONER IN THE DENATURALIZATION
PROCEEDINGS, SET ASIDE THE 1933 STATE COURT JUDGMENT ADMITTING HIM TO
CITIZENSHIP, AND CANCELLED HIS CERTIFICATE OF NATURALIZATION. 

MORE THAN FOUR YEARS AFTER THE DEFAULT JUDGMENT WAS RENDERED AGAINST
HIM, AND WHILE PETITIONER WAS STILL A GOVERNMENT PRISONER, HE FILED IN
THE DISTRICT COURT A VERIFIED PETITION PRAYING THAT THE COURT SET ASIDE
THE JUDGMENT.  THE UNITED STATES DID NOT DENY ANY OF THE FACTS ALLEGED
IN THE VERIFIED PETITION.  THE DISTRICT COURT, NECESSARILY ACCEPTING
THE UNDENIED ALLEGATIONS AS TRUE, HELD THAT THE PETITIONER HAD BEEN
GUILTY OF "WILLFUL AND INEXCUSABLE NEGLECT" AND ACCORDINGLY DISMISSED
THE PETITION "BECAUSE OF THE DEFENDANT'S LACHES."  6 F.R.D. 450.  THE
UNITED STATES COURT OF APPEALS, REJECTING PETITIONER'S SEVERAL
CONTENTIONS, AFFIRMED, ONE JUDGE DISSENTING.  166 F.2D 273. 

IN CONSIDERING THE CASE WE ALSO MUST ACCEPT AS TRUE THE UNDENIED
ALLEGATIONS OF THE PETITIONER.  THESE FACTS ARE OF GREAT IMPORTANCE IN
CONSIDERING SOME OF THE LEGAL CONTENTIONS RAISED.  THE ALLEGED FACTS
CHRONOLOGICALLY ARRANGED ARE AS FOLLOWS: 

1933 

NOV. 16.        PETITIONER WAS NATURALIZED BY ORDER OF COURT. 

1936 

NOV. 17.        PETITIONER MARRIED AN AMERICAN CITIZEN

                AND NOW HAS ONE CHILD BY THAT MARRIAGE. 

1942 

SPRING.         PETITIONER WAS SERIOUSLY ILL.  THE ILLNESS LEFT

HIM FINANCIALLY POOR AND SO WEAKENED

                THAT HE WAS UNABLE TO WORK. 

MAY 12.         UNITED STATES ATTORNEY FILED THE COMPLAINT

                IN THE UNITED STATES DISTRICT COURT OF

                NEW JERSEY TO CANCEL PETITIONER'S CITIZENSHIP. 

MAY 15.         COMPLAINT SERVED ON PETITIONER.  HE HAD NO

                MONEY TO HIRE A LAWYER.  HE DREW A DRAFT

                OF AN ANSWER TO THE COMPLAINT AND WROTE

                A LETTER TO THE AMERICAN CIVIL LIBERTIES

                UNION ASKING THAT THEY REPRESENT HIM

                WITHOUT FEE. 

JULY 7.         ARRESTED UNDER FEDERAL INDICTMENT CHARGING

     PETITIONER AND OTHERS WITH CONSPIRACY TO

    VIOLATE THE SELECTIVE SERVICE ACT.  TAKEN

    BEFORE UNITED STATES COMMISSIONER AT

NEWARK, NEW JERSEY; LATER CARRIED TO NEW

YORK BY FEDERAL BUREAU OF INVESTIGATION

                AGENTS, THERE PUT IN PRISON, UNABLE TO

                MAKE BOND OF $25,000 UNDER WHICH HE

                WAS HELD.  HIS LETTER TO CIVIL LIBERTIES

                UNION TAKEN FROM HIM BY AGENTS OF THE

                FBI EIGHT DAYS BEFORE EXPIRATION OF TIME

                TO ANSWER CANCELLATION OF CITIZENSHIP

                CHARGE IN NEW JERSEY.  THE AGENTS RETAINED

                THE LETTER, NEVER MAILING IT. 

1942 

JULY 17.        JUDGMENT BY DEFAULT ENTERED BY NEW JERSEY

                COURT IN CITIZENSHIP CANCELLATION CASE. 

                AT THE TIME, PETITIONER WAS IN A NEW YORK

                JAIL AWAITING TRIAL UNDER THE SELECTIVE SERVICE

                CONSPIRACY CASE.  NO EVIDENCE WAS

                OFFERED BY THE GOVERNMENT TO PROVE ITS

                CHARGES IN THE COMPLAINT FOR CANCELLATION

                OF CITIZENSHIP.  THE GOVERNMENT'S CASE

                CONSISTED OF NO MORE THAN A VERIFICATION

                OF THIS COMPLAINT BY AN FBI AGENT ON

                INFORMATION AND BELIEF, BASED ON THE

                AGENT'S HAVING READ FBI FILES CONCERNING

                PETITIONER. 

JULY 7,         WHILE PETITIONER WAS STILL IN JAIL, A LAWYER 

1942, DATE        WAS APPOINTED BY THE NEW YORK DISTRICT 

OF ARREST,        COURT TO DEFEND PETITIONER IN THE SELECTIVE 

TO JUNE           SERVICE CRIMINAL CASE.  AT HIS REQUEST THE 

1943.             NEW YORK LAWYER PROMISED TO HELP HIM

                ALSO IN THE NEW JERSEY CANCELLATION PROCEEDINGS,

                BUT THE LAWYER NEGLECTED TO DO

                SO.  PETITIONER WAS CONVICTED AND SENTENCED

                TO PENITENTIARY. 

1943 

JUNE.           PETITIONER ELECTED TO BEGIN SERVICE OF THE

                NEW YORK SENTENCE PENDING APPEAL, WAS

                CARRIED TO AND CONFINED IN FEDERAL INSTITUTION

                IN MICHIGAN WHERE HE REMAINED UNTIL

                JANUARY 30, 1944. 

1944 

JAN. 30.        PETITIONER TRANSFERRED FROM FEDERAL PRISON IN

               MICHIGAN TO JAIL IN THE DISTRICT OF COLUMBIA

                TO BE TRIED WITH TWENTY-NINE OTHER

           PERSONS ON A CHARGE OF SEDITION. 

1945 

JUNE 11.        THIS COURT REVERSED PETITIONER'S NEW YORK

          CONVICTION, KEEGAN V. UNITED STATES, 325

         U.S. 478, BUT HE CONTINUED TO BE HELD IN

        THE DISTRICT OF COLUMBIA JAIL UNTIL NOVEMBER

           22, 1946. 

1946 

NOV. 22.        DISTRICT OF COLUMBIA SEDITION CASE DISMISSED. 

                UNITED STATES V. MCWILLIAMS ET AL., 82

                U.S. APP. D.C. 259, 163 F.2D 695.  THE

                CASE HAD PREVIOUSLY BEEN TRIED FOR EIGHT

                MONTHS, BUT BEFORE COMPLETION A MISTRIAL

                WAS DECLARED BECAUSE OF THE DEATH OF THE

                PRESIDING JUDGE.  SHORTLY AFTER DISMISSAL

                OF THE SEDITION CASE PETITIONER, STILL A PRISONER

                OF THE UNITED STATES, WAS CARRIED TO

                ELLIS ISLAND FOR DEPORTATION ON ACCOUNT

                OF THE CANCELLATION OF HIS CITIZENSHIP UNDER

                THE NEW JERSEY DEFAULT JUDGMENT. 

DEC. 9.         THIS COURT DENIED CERTIORARI IN THREE COURT

                ACTIONS UNSUCCESSFULLY PROSECUTED BY THE

                CITIZENS PROTECTIVE LEAGUE ON BEHALF OF

                159 INDIVIDUALS INCLUDING PETITIONER. 

                (THE LEAGUE WAS A NON-PROFIT ORGANIZATION

                "TO INSURE EQUAL RIGHTS FOR ALL AND TO

                SAFEGUARD THE CONSTITUTIONAL RIGHTS OF ALL

                PERSONS."  CITIZENS PROTECTIVE LEAGUE V.

                CLARK, 81 U.S. APP. D.C. 116, 117, 155

                F.2D 290, 291; CERT. DENIED, 329 U.S.

                787.  THE COMPLAINT PRAYED THAT THE ATTORNEY

                GENERAL BE ENJOINED FROM DEPORTING

                159 INDIVIDUALS.  PETITIONER HAD

             BEEN ORDERED DEPORTED MARCH 27, 1946,

         WHILE HE WAS IN THE DISTRICT OF COLUMBIA

        JAIL CHARGED WITH SEDITION.) 

1946 

DEC. 12.        THREE DAYS AFTER THIS COURT'S DENIAL OF CERTIORARI,

             IN THE ACTION BROUGHT BY THE

CITIZENS PROTECTIVE LEAGUE, PETITIONER,

STILL A GOVERNMENT PRISONER AT ELLIS ISLAND,

 STATED THE SUBSTANCE OF THE FOREGOING FACTS

   UNDER OATH AND A PETITION WAS FILED ON HIS

    BEHALF IN THE NEW JERSEY DISTRICT COURT

  TO VACATE THE DEFAULT JUDGMENT AND GRANT

 HIM A TRIAL ON THE MERITS.  PETITIONER'S

VERIFIED MOTION ALSO ALLEGED THAT THE GOVERNMENT'S

         CHARGES AGAINST HIM IN THE NEW

JERSEY COURT WERE UNTRUE AND HE STRONGLY

ASSERTED HIS LOYALTY TO THE UNITED STATES. 

1947 

FEB. 7.         DISTRICT JUDGE DISMISSED THE PETITIONER'S MOTION

             HOLDING THAT PETITIONER HAD BEEN

    GUILTY OF LACHES IN NOT ARRANGING WHILE

  IN PRISON FOR DEFENSE OF THE CANCELLATION

  OF CITIZENSHIP CHARGE. 

THUS, THIS PETITIONER HAS NOW BEEN HELD CONTINUOUSLY IN PRISON BY THE
GOVERNMENT FOR SIX AND ONE-HALF YEARS.  DURING THAT PERIOD HE SERVED
ONE AND ONE-HALF YEARS OF A PENITENTIARY PUNISHMENT UNDER A CONVICTION
WHICH THIS COURT HELD WAS IMPROPER.  HE WAS ALSO HELD IN THE DISTRICT
OF COLUMBIA JAIL TWO YEARS AND TEN MONTHS UNDER AN INDICTMENT THAT WAS
LATER DISMISSED.  IT IS CLEAR THEREFORE, THAT FOR FOUR AND ONE-HALF
YEARS THIS PETITIONER WAS HELD IN PRISON ON CHARGES THAT THE GOVERNMENT
WAS UNABLE TO SUSTAIN.  NO OTHER CONCLUSION CAN BE DRAWN EXCEPT THAT
THIS LONG IMPRISONMENT WAS WRONGFUL.  WHETHER THE JUDGMENT BY DEFAULT
SHOULD BE SET ASIDE MUST THEREFORE BE DECIDED ON THE UNDENIED
ALLEGATIONS THAT THE GOVERNMENT, LARGELY THROUGH THE ACTION OF FBI
AGENTS, WRONGFULLY HELD PETITIONER IN NEW YORK, MICHIGAN, AND DISTRICT
OF COLUMBIA PRISONS, WHILE THE SAME GOVERNMENT, LARGELY ACTING THROUGH
THE SAME OR OTHER FBI AGENTS, CAUSED A DISTRICT COURT TO REVOKE
PETITIONER'S CITIZENSHIP ON THE GROUND THAT PETITIONER HAD FAILED TO
MAKE APPEARANCE AND DEFEND IN THE NEW JERSEY COURTS, ALTHOUGH
PETITIONER WAS AT THE TIME WITHOUT FUNDS TO HIRE A LAWYER. 

FIRST.  AMENDED RULE 60(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE
BECAME EFFECTIVE MARCH 19, 1948.  FN1  THAT WAS AFTER THE DISTRICT
COURT DENIED THE MOTION TO SET ASIDE THIS DEFAULT JUDGMENT AND AFTER
AFFIRMANCE OF THE DISTRICT COURT'S ACTION BY THE COURT OF APPEALS.  FOR
THESE REASONS THE GOVERNMENT CONTENDS THAT AMENDED RULE 60(B) SHOULD
NOT BE APPLIED HERE.  IN SOME RESPECTS, THE AMENDED RULE GRANTS COURTS
A BROADER POWER TO SET ASIDE JUDGMENTS THAN DID THE OLD RULE. 
PETITIONER SHOULD BE AFFORDED THE BENEFIT OF THE MORE LIBERAL AMENDED
60(B).  FOR RULE 86(B) MADE AMENDED 60(B) APPLICABLE TO "FURTHER
PROCEEDINGS IN ACTIONS THEN PENDING" UNLESS IT "WOULD WORK INJUSTICE"
SO TO APPLY THE RULE.  IT SEEMS INCONCEIVABLE THAT ONE COULD THINK IT
WOULD WORK ANY INJUSTICE TO THE GOVERNMENT TO MEASURE THE PETITIONER'S
RIGHTS BY THIS AMENDED RULE IN THIS CASE WHERE ALL HE ASKS IS A CHANCE
TO TRY THE DENATURALIZATION PROCEEDING ON ITS MERITS.  AMENDED RULE
60(B) SHOULD BE APPLIED.    SECOND.  AMENDED RULE 60(B) AUTHORIZES A
COURT TO SET ASIDE "A VOID JUDGMENT" WITHOUT REGARD TO THE LIMITATION
OF A YEAR APPLICABLE TO MOTIONS TO SET ASIDE ON SOME OTHER GROUNDS.  IT
IS CONTENDED THAT THIS JUDGMENT IS VOID BECAUSE RENDERED BY A DISTRICT
COURT WITHOUT HEARING ANY EVIDENCE.  THE JUDGMENT IS VOID IF THE
HEARING OF EVIDENCE IS A LEGAL PREREQUISITE TO RENDITION OF A VALID
DEFAULT JUDGMENT IN DENATURALIZATION PROCEEDINGS.  WHILE 8 U.S.C. SEC.
738, UNDER WHICH THIS DENATURALIZATION COMPLAINT WAS FILED, PLAINLY
AUTHORIZES COURTS TO REVOKE THE CITIZENSHIP OF NATURALIZED CITIZENS
AFTER NOTICE AND HEARING, IT CONTAINS NO EXPLICIT AUTHORIZATION FOR
RENDITION OF DEFAULT JUDGMENTS.  CONGRESSIONAL INTENTION TO AUTHORIZE
COURT ACTION IN THE ABSENCE OF A CITIZEN MIGHT BE IMPLIED, HOWEVER,
FROM THE PROVISION FOR NOTICE BY PUBLICATION IN SEC. 738(B).  ASIDE
FROM POSSIBLE CONSTITUTIONAL QUESTIONS, IT MAY THEREFORE BE ASSUMED
THAT THE SECTION AUTHORIZES RENDITION OF A DENATURALIZATION JUDGMENT IN
A DEFENDANT'S ABSENCE.  BUT IT DOES NOT NECESSARILY FOLLOW THAT A COURT
MAY ALSO RENDER JUDGMENT WITHOUT PROOF OF THE CHARGES MADE IN A
DENATURALIZATION COMPLAINT.  AND THERE IS STRONG INDICATION IN SEC. 738
AND COMPANION SECTIONS THAT CONGRESS DID NOT INTEND TO AUTHORIZE COURTS
AUTOMATICALLY TO DEPRIVE PEOPLE OF THEIR CITIZENSHIP FOR FAILURE TO
APPEAR. 

8 U.S.C. SEC. 746 MAKES IT A FELONY FOR APPLICANTS FOR NATURALIZATION
OR OTHERS TO VIOLATE FEDERAL LAWS RELATING TO NATURALIZATION.  HAD
PETITIONER BEEN FOUND GUILTY OF MAKING THE FALSE OATH HERE CHARGED, HE
COULD HAVE BEEN CONVICTED OF AND PUNISHED FOR A FELONY UNDER THIS
JURY TRIAL AT WHICH HE WOULD HAVE BEEN PRESENT AND REPRESENTED BY
COUNSEL.  A CONVICTION WOULD HAVE REQUIRED A PROOF OF GUILT BEYOND A
REASONABLE DOUBT, ON TESTIMONY OF WITNESSES GIVEN IN THE PRESENCE OF
THE ACCUSED WHO WOULD HAVE HAD AN OPPORTUNITY TO CROSS-EXAMINE THE
WITNESSES AGAINST HIM.  IN THE EVENT OF SUCH A CONVICTION UNDER
REQUIRED PROCEDURAL SAFEGUARDS, SEC. 738(E) AUTHORIZES COURTS TO REVOKE
CITIZENSHIP AND CANCEL NATURALIZATION CERTIFICATES.  THERE IS A BROAD
GAP BETWEEN A SEC. 738 DENATURALIZATION THUS ACCOMPLISHED AND THE ONE
ORDERED BY THE COURT IN THIS PROCEEDING.  FOR HERE, THE DEFENDANT WAS
ABSENT, NO COUNSEL OR OTHER REPRESENTATIVE OF HIS WAS PRESENT, NO
EVIDENCE WAS OFFERED, AND THE ONLY BASIS FOR ACTION WAS A COMPLAINT
CONTAINING ALLEGATIONS, QUESTIONABLE FROM A PROCEDURAL AND SUBSTANTIVE
STANDPOINT, VERIFIED BY AN FBI AGENT ON INFORMATION ACQUIRED BY HIM
FROM LOOKING AT HEARSAY STATEMENTS IN AN FBI DOSSIER.  THE PROTECTION
CONGRESS AFFORDED IN SEC. 738(E) EMPHASIZES THE UNFAIRNESS THAT WOULD
RESULT FROM PERMITTING DENATURALIZATIONS IN OTHER SEC. 738 PROCEEDINGS
WITHOUT ANY EVIDENCE AT ALL. 

WHEN WE LOOK TO FEDERAL STATUTES OTHER THAN SEC. 738 WE FIND NO
COMMAND AND NO EXPRESS AUTHORITY FOR COURTS TO ENTER DENATURALIZATION
JUDGMENTS BY DEFAULT WITHOUT PROOF OF FACTS TO SUPPORT THE JUDGMENT. 
NO SUCH AUTHORITY OR COMMAND IS CONTAINED IN RULE 55 OF THE FEDERAL
RULES OF CIVIL PROCEDURE WHICH RULE RELATES TO DEFAULT JUDGMENTS.  RULE
55(E) EXPRESSLY BARS ALL JUDGMENTS AGAINST THE UNITED STATES WITHOUT
PROOF, BUT IT CANNOT BE INFERRED FROM THIS THAT PROOF IS NEVER REQUIRED
AS A PREREQUISITE TO DEFAULT JUDGMENTS AGAINST ALL DEFENDANTS OTHER
THAN THE UNITED STATES.  FOR RULE 55(B)(2) EXPRESSLY PROVIDES FOR
REPRESENTATION OF DEFAULTING PARTIES IN SOME INSTANCES.  RULE 55(B)(2)
ALSO DIRECTS THAT IN CERTAIN SPECIFIED INSTANCES COURTS, BEFORE
ENTERING JUDGMENTS AFTER DEFAULT OF APPEARANCE, SHALL MAKE
INVESTIGATIONS, CONDUCT HEARINGS, AND EVEN GRANT JURY TRIALS.  IN
ADDITION TO THESE PARTICULARIZED INSTANCES, RULE 55(B)(2) ALSO PROVIDES
FOR COURT HEARINGS BEFORE DEFAULT JUDGMENT WHERE "IT IS NECESSARY  ...
TO ESTABLISH THE TRUTH OF ANY AVERMENT BY EVIDENCE OR TO MAKE AN
INVESTIGATION OF ANY OTHER MATTER." 

THUS IT APPEARS THAT STATUTES AND RULES HAVE LARGELY LEFT FOR
JUDICIAL DETERMINATION THE TYPE OF CASES IN WHICH HEARINGS AND PROOF
SHOULD PRECEDE DEFAULT JUDGMENTS.  IN THIS SITUATION IT IS THE FINAL
RESPONSIBILITY OF THIS COURT TO FORMULATE THE CONTROLLING RULES FOR
HEARINGS AND PROOF.  SEE MCNABB V. UNITED STATES, 318 U.S. 332, 341. 
FOR THE FOLLOWING REASONS IT SEEMS PECULIARLY APPROPRIATE THAT A
PERSON'S CITIZENSHIP SHOULD BE REVOKED ONLY AFTER EVIDENCE HAS
ESTABLISHED THAT THE PERSON HAS BEEN GUILTY OF PROHIBITED CONDUCT
JUSTIFYING REVOCATION. 

DENATURALIZATION CONSEQUENCES MAY BE MORE GRAVE THAN CONSEQUENCES THAT
FLOW FROM CONVICTION FOR CRIMES.  PERSONS CHARGED WITH CRIME IN UNITED
STATES COURTS CANNOT BE CONVICTED ON DEFAULT JUDGMENTS UNSUPPORTED BY
PROOF.  EVEN DECREES OF DIVORCE OR DEFAULT JUDGMENTS FOR MONEY DAMAGES
WHERE THERE IS ANY UNCERTAINTY AS TO THE AMOUNT MUST ORDINARILY BE
SUPPORTED BY ACTUAL PROOF.  THE REASONS FOR REQUIREMENT OF PROOF IN
CASES INVOLVING MONEY APPLY WITH MUCH GREATER FORCE TO CASES WHICH
INVOLVE FORFEITURE OF CITIZENSHIP AND SUBSEQUENT DEPORTATION.  THIS
COURT HAS LONG RECOGNIZED THE PLAIN FACT THAT TO DEPRIVE A PERSON OF
HIS AMERICAN CITIZENSHIP IS AN EXTRAORDINARILY SEVERE PENALTY.  THE
CONSEQUENCES OF SUCH A DEPRIVATION MAY EVEN REST HEAVILY UPON HIS
CHILDREN.  8 U.S.C. SEC. 719.  AS A RESULT OF THE DENATURALIZATION
HERE, PETITIONER HAS BEEN ORDERED DEPORTED.  "TO DEPORT ONE WHO SO
CLAIMS TO BE A CITIZEN, OBVIOUSLY DEPRIVES HIM OF LIBERTY ...  IT MAY
RESULT ALSO IN LOSS OF BOTH PROPERTY AND LIFE; OR OF ALL THAT MAKES
LIFE WORTH LIVING."  NG FUNG HO V. WHITE, 259 U.S. 276, 284.  BECAUSE
DENATURALIZATION PROCEEDINGS HAVE NOT FALLEN WITHIN THE TECHNICAL
CLASSIFICATION OF CRIMES IS HARDLY A SATISFACTORY REASON FOR ALLOWING
DENATURALIZATION WITHOUT PROOF WHILE REQUIRING PROOF TO SUPPORT A MERE
MONEY FINE OR A SHORT IMPRISONMENT. 

FURTHERMORE, BECAUSE OF THE GRAVE CONSEQUENCES INCIDENT TO
DENATURALIZATION PROCEEDINGS WE HAVE HELD THAT A BURDEN RESTS ON THE
GOVERNMENT TO PROVE ITS CHARGES IN SUCH CASES BY CLEAR, UNEQUIVOCAL AND
CONVINCING EVIDENCE WHICH DOES NOT LEAVE THE ISSUE IN DOUBT. 
SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 158.  THIS BURDEN IS
SUBSTANTIALLY IDENTICAL WITH THAT REQUIRED IN CRIMINAL CASES - PROOF
BEYOND A REASONABLE DOUBT.  THE SAME FACTORS THAT CAUSED US TO REQUIRE
PROOF OF THIS NATURE AS A PREREQUISITE TO DENATURALIZATION JUDGMENTS IN
HEARINGS WITH THE DEFENDANT PRESENT, APPLY AT LEAST WITH EQUAL FORCE TO
PROCEEDINGS IN WHICH A CITIZEN IS STRIPPED OF HIS CITIZENSHIP RIGHTS IN
HIS ABSENCE.  ASSUMING THAT NO ADDITIONAL PROCEDURAL SAFEGUARDS ARE
REQUIRED, IT IS OUR OPINION THAT COURTS SHOULD NOT IN SEC. 738
PROCEEDINGS DEPRIVE A PERSON OF HIS CITIZENSHIP UNTIL THE GOVERNMENT
FIRST OFFERS PROOF OF ITS CHARGES SUFFICIENT TO SATISFY THE BURDEN
IMPOSED ON IT, EVEN IN CASES WHERE THE DEFENDANT HAS MADE DEFAULT IN
APPEARANCE. 

THIRD.  BUT EVEN IF THIS JUDGMENT OF DENATURALIZATION IS NOT TREATED
AS VOID, THERE REMAIN OTHER COMPELLING REASONS UNDER AMENDED 60(B) FOR
RELIEVING THE PETITIONER OF ITS EFFECT.  AMENDED 60(B) PROVIDES FOR
SETTING ASIDE A JUDGMENT FOR ANY ONE OF FIVE SPECIFIED REASONS OR FOR
"ANY OTHER REASON JUSTIFYING RELIEF FROM THE OPERATION OF THE
JUDGMENT."  THE FIRST OF THE FIVE SPECIFIED REASONS IS "MISTAKE,
INADVERTENCE, SURPRISE, OR EXCUSABLE NEGLECT."  TO TAKE ADVANTAGE OF
THIS REASON THE RULE REQUIRES A LITIGANT TO ASK RELIEF "NOT MORE THAN
ONE YEAR AFTER THE JUDGMENT, ORDER, OR PROCEEDING WAS ENTERED OR
TAKEN."  IT IS CONTENDED THAT THE ONE-YEAR LIMITATION BARS PETITIONER
ON THE PREMISE THAT THE PETITION TO SET ASIDE THE JUDGMENT SHOWED, AT
MOST, NOTHING BUT "EXCUSABLE NEGLECT."  AND OF COURSE, THE ONE-YEAR
LIMITATION WOULD CONTROL IF NO MORE THAN "NEGLECT" WAS DISCLOSED BY THE
PETITION.  IN THAT EVENT THE PETITIONER COULD NOT AVAIL HIMSELF OF THE
BROAD "ANY OTHER REASON" CLAUSE OF 60(B).  BUT PETITIONER'S ALLEGATIONS
SET UP AN EXTRAORDINARY SITUATION WHICH CANNOT FAIRLY OR LOGICALLY BE
CLASSIFIED AS MERE "NEGLECT" ON HIS PART.  THE UNDENIED FACTS SET OUT
IN THE PETITION REVEAL FAR MORE THAN A FAILURE TO DEFEND THE
DENATURALIZATION CHARGES DUE TO INADVERTENCE, INDIFFERENCE, OR CARELESS
DISREGARD REGARD OF CONSEQUENCES.  FOR BEFORE, AT THE TIME, AND AFTER
THE DEFAULT JUDGMENT WAS ENTERED, PETITIONER WAS HELD IN JAIL IN NEW
YORK, MICHIGAN, AND THE DISTRICT OF COLUMBIA BY THE UNITED STATES, HIS
ADVERSARY IN THE DENATURALIZATION PROCEEDINGS.  WITHOUT FUNDS TO HIRE A
LAWYER, PETITIONER WAS DEFENDED BY APPOINTED COUNSEL IN THE CRIMINAL
CASES.  THUS PETITIONER'S PRAYER TO SET ASIDE THE DEFAULT JUDGMENT DID
NOT REST ON MERE ALLEGATIONS OF "EXCUSABLE NEGLECT."  THE FOREGOING
ALLEGATIONS AND OTHERS IN THE PETITION TEND TO SUPPORT PETITIONER'S
ARGUMENT THAT HE WAS DEPRIVED OF ANY REASONABLE OPPORTUNITY TO MAKE A
DEFENSE TO THE CRIMINAL CHARGES INSTIGATED BY OFFICERS OF THE VERY
UNITED STATES AGENCY WHICH SUPPLIED THE SECONDHAND INFORMATION UPON
WHICH HIS CITIZENSHIP WAS TAKEN AWAY FROM HIM IN HIS ABSENCE.  THE
BASIS OF HIS PETITION WAS NOT THAT HE HAD NEGLECTED TO ACT IN HIS OWN
DEFENSE, BUT THAT IN JAIL AS HE WAS, WEAKENED FROM ILLNESS, WITHOUT A
LAWYER IN THE DENATURALIZATION PROCEEDINGS OR FUNDS TO HIRE ONE,
DISTURBED AND FULLY OCCUPIED IN EFFORTS TO PROTECT HIMSELF AGAINST THE
GRAVEST CRIMINAL CHARGES, HE WAS NO MORE ABLE TO DEFEND HIMSELF IN THE
NEW JERSEY COURT THAN HE WOULD HAVE BEEN HAD HE NEVER RECEIVED NOTICE
OF THE CHARGES.  UNDER SUCH CIRCUMSTANCES PETITIONER'S PRAYER FOR
SETTING ASIDE THE DEFAULT JUDGMENT SHOULD NOT BE CONSIDERED ONLY UNDER
THE EXCUSABLE NEGLECT, BUT ALSO UNDER THE "OTHER REASON" CLAUSE OF
60(B), TO WHICH THE ONE-YEAR LIMITATION PROVISION DOES NOT APPLY. 

FOURTH.  THUS WE COME TO THE QUESTION WHETHER PETITIONER'S UNDENIED
ALLEGATIONS SHOW FACTS "JUSTIFYING RELIEF FROM THE OPERATION OF THE
JUDGMENT."  IT IS CONTENDED THAT THE "OTHER REASON" CLAUSE SHOULD BE
INTERPRETED SO AS TO DENY RELIEF EXCEPT UNDER CIRCUMSTANCES SUFFICIENT
TO HAVE AUTHORIZED RELIEF UNDER THE COMMON LAW WRITS OF CORAM NOBIS AND
AUDITA QUERELA, AND THAT THE FACTS SHOWN HERE WOULD NOT HAVE JUSTIFIED
RELIEF UNDER THESE COMMON LAW PROCEEDINGS.  ONE THING WRONG WITH THIS
CONTENTION IS THAT FEW COURTS EVER HAVE AGREED AS TO WHAT CIRCUMSTANCES
WOULD JUSTIFY RELIEF UNDER THESE OLD REMEDIES.  TO ACCEPT THIS
CONTENTION WOULD THEREFORE INTRODUCE NEEDLESS CONFUSION IN THE
ADMINISTRATION OF 60(B) AND WOULD ALSO CIRCUMSCRIBE IT WITHIN NEEDLESS
AND UNCERTAIN BOUNDARIES.  FURTHERMORE 60(B) STRONGLY INDICATES ON ITS
FACE THAT COURTS NO LONGER ARE TO BE HEMMED IN BY THE UNCERTAIN
BOUNDARIES OF THESE AND OTHER COMMON LAW REMEDIAL TOOLS.  IN SIMPLE
ENGLISH, THE LANGUAGE OF THE "OTHER REASON" CLAUSE, FOR ALL REASONS
EXCEPT THE FIVE PARTICULARLY SPECIFIED, VESTS POWER IN COURTS ADEQUATE
TO ENABLE THEM TO VACATE JUDGMENTS WHENEVER SUCH ACTION IS APPROPRIATE
TO ACCOMPLISH JUSTICE. 

FIFTH.  THE UNDENIED ALLEGATIONS ALREADY SET OUT SHOW THAT A CITIZEN
WAS STRIPPED OF HIS CITIZENSHIP BY HIS GOVERNMENT, WITHOUT EVIDENCE, A
HEARING, OR THE BENEFIT OF COUNSEL, AT A TIME WHEN HIS GOVERNMENT WAS
THEN HOLDING THE CITIZEN IN JAIL WITH NO REASONABLE OPPORTUNITY FOR HIM
EFFECTIVELY TO DEFEND HIS RIGHT TO CITIZENSHIP.  FURTHERMORE, THE
COMPLAINT IN THE DENATURALIZATION PROCEEDING STRONGLY INDICATES THAT
THE GOVERNMENT HERE IS PROCEEDING ON INADEQUATE FACTS, JUST AS IT DID
IN THE CRIMINAL CASES IT BROUGHT AGAINST PETITIONER.  FOR IF THE
GOVERNMENT HAD BEEN ABLE ON A TRIAL TO PROVE NO MORE THAN THE
PARTICULAR FACTS IT ALLEGED IN ITS DENATURALIZATION COMPLAINT, IT IS
DOUBTFUL IF ITS PROOF COULD HAVE BEEN HELD SUFFICIENT TO REVOKE
PETITIONER'S CITIZENSHIP UNDER OUR HOLDINGS IN BAUMGARTNER V. UNITED
STATES, 322 U.S. 665, SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118,
KNAUER V. UNITED STATES, 328 U.S. 654, 659, AND SEE RULE 9(B) OF THE
RULES OF CIVIL PROCEDURE.  AND ALL PETITIONER HAS ASKED IS THAT THE
DEFAULT JUDGMENT BE SET ASIDE SO THAT FOR THE FIRST TIME HE MAY DEFEND
ON THE MERITS.  CERTAINLY THE UNDENIED FACTS ALLEGED JUSTIFY SETTING
ASIDE THE DEFAULT JUDGMENT FOR THAT PURPOSE.  PETITIONER IS ENTITLED TO
A FAIR TRIAL.  HE HAS NOT HAD IT.  THE GOVERNMENT MAKES NO CLAIM THAT
HE HAS.  FAIR HEARINGS ARE IN ACCORD WITH ELEMENTAL CONCEPTS OF
JUSTICE, AND THE LANGUAGE OF THE "OTHER REASON" CLAUSE OF 60(B) IS
BROAD ENOUGH TO AUTHORIZE THE COURT TO SET ASIDE THE DEFAULT JUDGMENT
AND GRANT PETITIONER A FAIR HEARING. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, MR.
JUSTICE RUTLEDGE AND MR. JUSTICE BURTON AGREE THAT THE DISTRICT COURT
ERRED IN DISMISSING THE PETITION TO SET ASIDE THE DEFAULT JUDGMENT, AND
THAT THE COURT OF APPEALS ERRED IN AFFIRMING THE DISTRICT COURT
JUDGMENT.  THE JUDGMENTS ACCORDINGLY ARE REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO SET ASIDE THE
JUDGMENT BY DEFAULT AND GRANT THE PETITIONER A HEARING ON THE MERITS OF
THE ISSUES RAISED BY THE DENATURALIZATION COMPLAINT* .  IT IS SO
ORDERED. 

*(THIS JUDGMENT MODIFIED, 336 U.S. 942.) 

FN1  AMENDED RULE 60(B) PROVIDES: 

"ON MOTION AND UPON SUCH TERMS AS ARE JUST, THE COURT MAY RELIEVE A
PARTY OR HIS LEGAL REPRESENTATIVE FROM A FINAL JUDGMENT, ORDER, OR
PROCEEDING FOR THE FOLLOWING REASONS:  (1) MISTAKE, INADVERTENCE,
SURPRISE, OR EXCUSABLE NEGLECT; (2) NEWLY DISCOVERED EVIDENCE WHICH BY
DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME TO MOVE FOR A NEW
TRIAL UNDER RULE 59(B); (3) FRAUD (WHETHER HERETOFORE DENOMINATED
INTRINSIC OR EXTRINSIC), MISREPRESENTATION, OR OTHER MISCONDUCT OF AN
ADVERSE PARTY; (4) THE JUDGMENT IS VOID; (5) THE JUDGMENT HAS BEEN
SATISFIED, RELEASED, OR DISCHARGED, OR A PRIOR JUDGMENT UPON WHICH IT
IS BASED HAS BEEN REVERSED OR OTHERWISE VACATED, OR IT IS NO LONGER
EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION; OR (6)
ANY OTHER REASON JUSTIFYING RELIEF FROM THE OPERATION OF THE JUDGMENT. 
THE MOTION SHALL BE MADE WITHIN A REASONABLE TIME, AND FOR REASONS (1),
(2), AND (3) NOT MORE THAN ONE YEAR AFTER THE JUDGMENT, ORDER, OR
PROCEEDING WAS ENTERED OR TAKEN.  A MOTION UNDER THIS SUBDIVISION (B)
DOES NOT AFFECT THE FINALITY OF A JUDGMENT OR SUSPEND ITS OPERATION. 
THIS RULE DOES NOT LIMIT THE POWER OF A COURT TO ENTERTAIN AN
INDEPENDENT ACTION TO RELIEVE A PARTY FROM A JUDGMENT, ORDER, OR
PROCEEDING, OR TO GRANT RELIEF TO A DEFENDANT NOT ACTUALLY PERSONALLY
NOTIFIED AS PROVIDED IN SECTION 57 OF THE JUDICIAL CODE, U.S.C., TITLE
28, SEC. 118, OR TO SET ASIDE A JUDGMENT FOR FRAUD UPON THE COURT. 
WRITS OF CORAM NOBIS, CORAM VOBIS, AUDITA QUERELA, AND BILLS OF REVIEW
AND BILLS IN THE NATURE OF A BILL OF REVIEW, ARE ABOLISHED, AND THE
PROCEDURE FOR OBTAINING ANY RELIEF FROM A JUDGMENT SHALL BE BY MOTION
AS PRESCRIBED IN THESE RULES OR BY AN INDEPENDENT ACTION." 

MR. JUSTICE BURTON, WHILE AGREEING WITH MR. JUSTICE REED THAT A
JUDGMENT OF DENATURALIZATION MAY BE ENTERED BY DEFAULT WITHOUT A
FURTHER SHOWING THAN WAS MADE IN THIS CASE, BELIEVES THAT, UNDER THE
SPECIAL CIRCUMSTANCES HERE SHOWN ON BEHALF OF THIS PETITIONER, THE
JUDGMENT BY DEFAULT SHOULD BE SET ASIDE AND THE PETITIONER SHOULD BE
GRANTED A HEARING ON THE MERITS OF THE ISSUES RAISED BY THE
DENATURALIZATION COMPLAINT.  HE THEREFORE JOINS IN THE JUDGMENT OF THE
COURT AS LIMITED TO THE SPECIAL FACTS OF THIS CASE AND WITHOUT
EXPRESSING AN OPINION UPON ANY ISSUES NOT NOW BEFORE THIS COURT. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE MURPHY AGREES, CONCURRING
IN THE RESULT. 

TO TREAT A DENATURALIZATION PROCEEDING, WHETHER PROCEDURALLY OR
OTHERWISE, AS IF IT WERE NOTHING MORE THAN A SUIT FOR DAMAGES FOR
BREACH OF CONTRACT OR ONE TO RECOVER OVERTIME PAY IGNORES, IN MY VIEW,
EVERY CONSIDERATION OF JUSTICE AND OF REALITY CONCERNING THE SUBSTANCE
OF THE SUIT AND WHAT IS AT STAKE. 

TO TAKE AWAY A MAN'S CITIZENSHIP DEPRIVES HIM OF A RIGHT NO LESS
PRECIOUS THAN LIFE OR LIBERTY, INDEED OF ONE WHICH TODAY COMPREHENDS
THOSE RIGHTS AND ALMOST ALL OTHERS.  FN1  TO LAY UPON THE CITIZEN THE
PUNISHMENT OF EXILE FOR COMMITTING MURDER, OR EVEN TREASON, IS A
PENALTY THUS FAR UNKNOWN TO OUR LAW AND AT MOST BUT DOUBTFULLY WITHIN
CONGRESS' POWER.  U.S. CONST., AMEND. VIII.  YET BY THE DEVICE OR LABEL
OF A CIVIL SUIT, CARRIED FORWARD WITH NONE OF THE SAFEGUARDS OF
CRIMINAL PROCEDURE PROVIDED BY THE BILL OF RIGHTS, THIS MOST
COMPREHENSIVE AND BASIC RIGHT OF ALL, SO IT HAS BEEN HELD, CAN BE TAKEN
AWAY AND IN ITS WAKE MAY FOLLOW THE MOST CRUEL PENALTY OF BANISHMENT. 

NO SUCH PROCEDURES COULD STRIP A NATURAL-BORN CITIZEN OF HIS
BIRTHRIGHT OR LAY HIM OPEN TO SUCH A PENALTY.  I HAVE STATED HERETOFORE
THE REASONS WHY I THINK THE CONSTITUTION DOES NOT COUNTENANCE EITHER
THAT DEPRIVATION OR THE ENSUING LIABILITY TO SUCH A PUNISHMENT FOR
NATURALIZED CITIZENS.  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118,
CONCURRING OPINION 165; KNAUER V. UNITED STATES, 328 U.S. 654,
DISSENTING OPINION 675. 

THOSE VIEWS OF THE SUBSTANTIVE RIGHTS OF NATURALIZED CITIZENS HAVE
NOT PREVAILED HERE.  BUT THE SCHNEIDERMAN DECISION AND BAUMGARTNER V.
UNITED STATES, 322 U.S. 665, REQUIRED A BURDEN OF PROOF FOR
DENATURALIZATION WHICH IN EFFECT APPROXIMATES THE BURDEN DEMANDED FOR
CONVICTION IN CRIMINAL CASES, NAMELY, PROOF BEYOND A REASONABLE DOUBT
OF THE CHARGES ALLEGED AS CAUSE FOR DENATURALIZATION.  FN2  THIS WAS IN
ITSELF AND TO THAT EXTENT RECOGNITION THAT ORDINARY CIVIL PROCEDURES,
SUCH AS APPLY IN SUITS UPON CONTRACTS AND TO ENFORCE OTHER PURELY CIVIL
LIABILITIES, DO NOT SUFFICE FOR DENATURALIZATION AND ALL ITS
CONSEQUENCES.  MORE THAN THIS IT WAS NOT NECESSARY TO DECIDE IN THE
CASES CITED.  NO LESS SHOULD BE REQUIRED, IN VIEW OF THE SUBSTANTIAL
KINSHIP OF THE PROCEEDINGS WITH CRIMINAL CAUSES, WHATEVER THEIR
TECHNICAL FORM OR LABEL.  CF. KNAUER V. UNITED STATES, 328 U.S. 654,
DISSENTING OPINION 675, 678. 

THIS CASE, HOWEVER, PRESENTS SQUARELY THE ISSUE WHETHER, BEYOND ANY
QUESTION OF BURDEN OR WEIGHT OF PROOF, THE ORDINARY CIVIL PROCEDURES
CAN SUFFICE TO TAKE AWAY THE NATURALIZED CITIZEN'S STATUS AND LAY HIM
OPEN TO PERMANENT EXILE WITH ALL THE FATEFUL CONSEQUENCES FOLLOWING FOR
HIMSELF AND HIS FAMILY, OFTEN AS IN THIS CASE NATIVE-BORN AMERICANS. 
THE QUESTION IN ITS NARROWER ASPECT IS INDEED WHETHER THOSE
CONSEQUENCES CAN BE INFLICTED WITHOUT ANY PROOF WHATEVER. 

UNDER OUR SYSTEM PETITIONER COULD NOT BE CONVICTED OR FINED FOR MAIL
FRAUD, OVERCEILING SALES, OR UNLAWFULLY POSSESSING GASOLINE RATION
COUPONS UPON A JUDGMENT TAKEN BY DEFAULT, MUCH LESS UNDER THE
CIRCUMSTANCES THIS RECORD DISCLOSES TO HAVE BEEN RESPONSIBLE FOR THE
DEFAULT.  YET HIS BASIC RIGHT TO ALL THE PROTECTIONS AFFORDED HIM AS A
CITIZEN BY THE CONSTITUTION CAN BE STRIPPED FROM HIM, SO IT IS NOW
URGED, WITHOUT AN IOTA OF PROOF, WITHOUT HIS APPEARANCE OR PRESENCE IN
COURT, WITHOUT COUNSEL EMPLOYED OR ASSIGNED TO DEFEND THAT RIGHT, AND
INDEED WITH NO REAL OPPORTUNITY ON HIS PART TO PREPARE AND MAKE SUCH A
DEFENSE.  THE CASE THUS GOES FAR BEYOND THE COURT'S RULING IN KNAUER V.
UNITED STATES, SUPRA.  AND, IN MY OPINION, IT BRINGS TO CLEARER FOCUS
WHETHER, BEYOND THE MATTER OF SATISFYING THE BURDEN OF PROOF REQUIRED
BY THE SCHNEIDERMAN AND BAUMGARTNER CASES, THE KNAUER CASE RIGHTLY
PERMITTED DENATURALIZATION THROUGH THE CIVIL PROCEDURES THERE PURSUED. 
FN3 

IF, IN DEFERENCE TO THE COURT'S RULINGS, WE ARE TO CONTINUE TO HAVE
TWO CLASSES OF CITIZENS IN THIS COUNTRY, ONE SECURE IN THEIR STATUS AND
THE OTHER SUBJECT AT EVERY MOMENT TO ITS LOSS BY PROCEEDINGS NOT
APPLICABLE TO THE OTHER CLASS, CF. SCHNEIDERMAN V. UNITED STATES,
SUPRA, CONCURRING OPINION AT 167; KNAUER V. UNITED STATES, SUPRA,
DISSENTING OPINION AT 678, I CANNOT ASSENT TO THE IDEA THAT THE
ORDINARY RULES OF PROCEDURE IN CIVIL CAUSES AFFORD ANY STANDARD
SUFFICIENT TO SAFEGUARD THE STATUS GIVEN TO NATURALIZED CITIZENS.  IF
CITIZENSHIP IS TO BE DEFEASIBLE FOR NATURALIZED CITIZENS, OTHER THAN BY
VOLUNTARY RENUNCIATION OR OTHER CAUSES APPLICABLE TO NATIVE-BORN
CITIZENS,  FN4  THE DEFEASANCE IT SEEMS TO ME SHOULD BE SURROUNDED BY
NO LESSER PROTECTIONS THAN THOSE SECURING ALL CITIZENS AGAINST
CONVICTION FOR CRIME.  REGARDLESS OF THE NAME GIVEN IT, THE
DENATURALIZATION PROCEEDING WHEN IT IS SUCCESSFUL HAS ALL THE
CONSEQUENCES AND EFFECTS OF A PENAL OR CRIMINAL CONVICTION, EXCEPT THAT
THE ENSUING LIABILITY TO DEPORTATION IS A GREATER PENALTY THAN IS
GENERALLY INFLICTED FOR CRIME. 

REGARDING THE PROCEEDING IN THIS LIGHT, I DO NOT ASSENT IN PRINCIPLE
THAT THE JUDGMENT OF DENATURALIZATION CAN BE TAKEN BY DEFAULT OR THAT
THE RULES OF CIVIL PROCEDURE APPLICABLE IN ORDINARY CIVIL CAUSES APPLY
TO PERMIT SUCH A RESULT. 

THE GROUNDS WHICH I HAVE STATED FOR THESE CONCLUSIONS LOGICALLY WOULD
LEAD TO CASTING MY VOTE TO REVERSE THE JUDGMENT WITH INSTRUCTIONS TO
DISMISS THE PROCEEDINGS.  SINCE, HOWEVER, THAT DISPOSITION DOES NOT
RECEIVE THE CONCURRENCE OF A MAJORITY, I JOIN WITH THOSE WHO, ON OTHER
GROUNDS, THINK THAT THE JUDGMENT SHOULD BE REVERSED AND REMANDED FOR A
NEW TRIAL, IN VOTING SO TO DISPOSE OF THE CAUSE.  ACCORDINGLY I CONCUR
IN THE COURT'S JUDGMENT.  I MAY ADD THAT, UPON THE ASSUMPTION THAT
RULES OF CIVIL PROCEDURE MAY APPLY IN DENATURALIZATION PROCEEDINGS, I
AM SUBSTANTIALLY IN ACCORD WITH THE VIEWS EXPRESSED BY MR. JUSTICE
BLACK. 

FN1  CF. NG FUNG HO V. WHITE, 259 U.S. 276, 284; SCHNEIDERMAN V.
UNITED STATES, 320 U.S. 118, 122, AND CONCURRING OPINION 165; KNAUER V.
UNITED STATES, 328 U.S. 654, DISSENTING OPINION 675. 

FN2  SEE SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 125, 136, 153,
154, 158, 159.  AT PAGE 158 WE SAID:  "WE CONCLUDE THAT THE GOVERNMENT
HAS NOT CARRIED ITS BURDEN OF PROVING BY 'CLEAR, UNEQUIVOCAL, AND
CONVINCING' EVIDENCE WHICH DOES NOT LEAVE 'THE ISSUE IN DOUBT,' THAT
PETITIONER OBTAINED HIS CITIZENSHIP ILLEGALLY."  THE CONCURRING OPINION
IN KNAUER V. UNITED STATES, 328 U.S. 654, 674, WENT UPON THE BASIS OF
SATISFACTION "BEYOND ALL REASONABLE DOUBT" CONCERNING THE PROOF OF THE
GROUNDS ASSERTED FOR DENATURALIZATION. 

FN3  IN THE VIEW OF THOSE DISSENTING, AS WELL AS THAT OF THE MAJORITY
IN THE KNAUER CASE, THE GOVERNMENT HAD SATISFIED FULLY THE BURDEN OF
PROOF REQUIRED BY THE SCHNEIDERMAN AND BAUMGARTNER DECISIONS.  SEE 328
U.S. 654, 675. 

FN4  SEE KNAUER V. UNITED STATES, 328 U.S. 654, DISSENTING OPINION
675, 676. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE JACKSON
JOIN, DISSENTING. 

IN MAY, 1942, THE UNITED STATES BEGAN PROCEEDINGS IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, AGAINST KLAPPROTT
UNDER SEC. 338 OF THE NATIONALITY ACT OF 1940, 54 STAT. 1137, 1158, 8
U.S.C. SEC. 738,  FN1  TO CANCEL HIS CERTIFICATE OF NATURALIZATION,
ISSUED IN 1933, ON THE GROUND THAT HE HAD TAKEN A FALSE OATH OF
ALLEGIANCE TO PROCURE THE CERTIFICATE.  THE COMPLAINT ALLEGED THAT AT
THE TIME HE TOOK THE OATH PETITIONER KNEW THAT HE WAS NOT ATTACHED TO
THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES AND DID NOT
INTEND TO RENOUNCE HIS ALLEGIANCE TO THE GERMAN REICH; THAT PETITIONER
"IS AND HAS BEEN NOTORIOUSLY AND OPENLY ONE OF THE CHIEF LEADERS AND
ACTIVE MEMBERS OF THE GERMAN-AMERICAN BUND" AND OTHER ORGANIZATIONS
SYMPATHETIC TO THE GERMAN REICH; AND THAT HE HAD MADE "NUMEROUS
STATEMENTS INDICATING HIS ALLEGIANCE AND LOYALTY TO THE GERMAN REICH
AND HIS DISREGARD AND DISRESPECT FOR THE PRINCIPLES AND INSTITUTIONS OF
THE UNITED STATES OF AMERICA." 

PETITIONER WAS PERSONALLY SERVED WITH SUMMONS ON MAY 15, 1942. 
WITHOUT THE INTRODUCTION OF ANY EVIDENCE, JUDGMENT BY DEFAULT WAS
ENTERED AGAINST HIM ON JULY 17, 1942, WHEN HE FAILED TO ANSWER WITHIN
THE SIXTY DAYS ALLOWED BY SEC. 338, SUPRA, NOTE 1. 

IN JANUARY, 1947, FOUR AND ONE-HALF YEARS LATER, KLAPPROTT PETITIONED
THE SAME DISTRICT COURT WHICH HAD ENTERED THE JUDGMENT OF
DENATURALIZATION FOR AN ORDER TO SHOW CAUSE WHY THAT JUDGMENT SHOULD
NOT BE VACATED.  IN AN AFFIDAVIT APPENDED TO HIS PETITION, HE STATED,
AFTER ADMITTING RECEIPT OF THE SUMMONS AND COMPLAINT, THAT IT WAS
IMPOSSIBLE FOR HIM TO ENTER A DEFENSE AND INTIMATED THAT HE WAS UNABLE
TO TAKE STEPS TO HAVE THE JUDGMENT VACATED PRIOR TO 1947.  THERE IS NO
ALLEGATION THAT HE WAS IGNORANT OF THE ENTRY OF THE JUDGMENT FOR ANY
PERIOD OF TIME.  SEE RULES 5(A) AND 77(D) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  THE REASONS CONTAINED IN THE AFFIDAVIT IN SUPPORT OF THIS
GENERAL STATEMENT CAN BE SUMMARIZED AS FOLLOWS:  PETITIONER, AS A
RESULT OF SERIOUS ILLNESS, WAS IN POOR HEALTH AND "UNABLE TO GET AROUND
VERY WELL" AT THE TIME SUMMONS WAS SERVED.  SINCE HE HAD NO MONEY WITH
WHICH TO RETAIN A LAWYER, HE DRAFTED A LETTER TO THE AMERICAN CIVIL
LIBERTIES UNION OF NEW YORK REQUESTING LEGAL ASSISTANCE.  ON JULY 7,
1942, SEVEN DAYS BEFORE TIME FOR FILING APPEARANCE EXPIRED, HE WAS
ARRESTED BY FEDERAL AUTHORITIES ON AN INDICTMENT IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, CHARGING HIM WITH
A CONSPIRACY TO VIOLATE THE SELECTIVE SERVICE ACT.  THE LETTER WAS
TAKEN BY THESE AUTHORITIES, AND, SO FAR AS KLAPPROTT KNEW, NEVER
MAILED.  THE COURT APPOINTED A LAWYER TO DEFEND PETITIONER IN THE NEW
YORK CONSPIRACY CASE.  PETITIONER INFORMED HIM OF THE DENATURALIZATION
PROCEEDING, TO WHICH THE LAWYER PROMISED TO ATTEND, BUT WHICH HE
NEGLECTED, ALLOWING JUDGMENT TO BE ENTERED BY DEFAULT.  BECAUSE OF THE
LENGTHY TRIAL AND EXCEEDINGLY HIGH BAIL IN CONNECTION WITH THE
CONSPIRACY CHARGE, PETITIONER WAS STILL UNABLE TO TAKE STEPS TO HAVE
THE JUDGMENT VACATED.  HE WAS FOUND GUILTY OF THE CONSPIRACY  FN2  AND
COMMITTED TO THE FEDERAL CORRECTIONAL INSTITUTION AT MILAN, MICHIGAN. 
ON JANUARY 30, 1944, PURSUANT TO ANOTHER INDICTMENT - THE "SEDITION
CASE"  FN3  IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA - HE WAS TRANSFERRED TO THE DISTRICT OF COLUMBIA.  HE REMAINED
IN CUSTODY THROUGHOUT THE TRIAL OF THIS CASE UNTIL NOVEMBER 21, 1946,
WHEN THE INDICTMENT WAS DISMISSED.  PETITIONER WAS THEN RELEASED BUT
WAS IMMEDIATELY REMANDED TO CUSTODY AT ELLIS ISLAND FOR THE PURPOSE OF
DEPORTATION.  FROM THERE HE BEGAN THIS ATTEMPT TO HAVE THE JUDGMENT OF
DENATURALIZATION VACATED. 

PETITIONER IN HIS AFFIDAVIT DENIED THE ALLEGATIONS IN THE
GOVERNMENT'S ORIGINAL COMPLAINT AND ASSERTED THAT HE HAD A GOOD AND
LEGAL DEFENSE TO THE ACTION FOR CANCELLATION OF HIS CERTIFICATE OF
NATURALIZATION. 

IF PETITIONER IS ENTITLED TO RELIEF FROM THE DEFAULT JUDGMENT, HE
MUST QUALIFY UNDER ONE OR MORE OF THE PROVISIONS OF RULE 60(B) OF THE
FEDERAL RULES OF CIVIL PROCEDURE.  FN4  I DO NOT THINK THAT HIS
PETITION OR THE AFFIDAVIT IN SUPPORT THEREOF MEETS THE REQUIREMENTS OF
THAT RULE FOR VACATING A JUDGMENT. 

FIRST.  THE COURT ASSUMES, AS I THINK IT MUST, THAT SEC. 338 OF THE
NATIONALITY ACT AUTHORIZES DEFAULT JUDGMENTS OF DENATURALIZATION.  SO
MUCH IS CLEAR FROM THE PROVISIONS IN (B) OF THAT SECTION FOR NOTICE BY
PUBLICATION AND IN (C) FOR THE DENATURALIZATION OF ONE WHO HAS LEFT THE
UNITED STATES TO ESTABLISH A PERMANENT RESIDENCE ELSEWHERE.  THE ACTION
AUTHORIZED BY THE SECTION IS CIVIL.  FN5  THE GENERAL RULE IN CIVIL
ACTIONS IS THAT NOTICE PLACES ON THE PARTY TO WHOM IT IS DIRECTED THE
RESPONSIBILITY TO APPEAR AND DEFEND OR FACE THE CONSEQUENCES.  RULE 55
OF THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDES FOR DEFAULT JUDGMENTS
IN CIVIL ACTIONS WHERE THE PARTY AGAINST WHOM RELIEF IS SOUGHT FAILS TO
PLEAD.  THE INSTANCES ENUMERATED IN (B)(2) AND (E) OF THAT RULE, AS
THOSE WHERE A DEFAULT JUDGMENT SHALL NOT BE ENTERED, DO NOT INCLUDE
THIS CASE. 

THE COURT SUGGESTS UNDER CAPTION SECOND, HOWEVER, THAT THE
PRESENTATION OF EVIDENCE IS A PREREQUISITE TO THE ENTRY OF SUCH A
JUDGMENT, AND THAT A DEFAULT JUDGMENT ENTERED WITHOUT EVIDENCE IS VOID
AND THEREFORE SUBJECT TO VACATION WITHOUT A DEFINITE TIME LIMIT UNDER
(4) OF RULE 60(B).  IT POINTS OUT THAT SCHNEIDERMAN V. UNITED STATES,
320 U.S. 118, HELD THAT "CLEAR AND CONVINCING" EVIDENCE IS NECESSARY TO
SUPPORT A JUDGMENT OF DENATURALIZATION.  THE HOLDING IN THAT CASE,
HOWEVER, MUST BE VIEWED IN ITS SETTING, I.E., A CONTESTED CASE.  THE
CASE DOES NOT SUPPORT THE PROPOSITION THAT ANY EVIDENCE, CLEAR AND
CONVINCING OR OTHERWISE, IS REQUIRED IN AN UNCONTESTED DENATURALIZATION
PROCEEDING.  THE GENERAL RULE IN CIVIL ACTIONS IS THAT NONE IS
NECESSARY.  EVEN THOUGH DEPORTATION IS A MOST SERIOUS DISASTER TO THE
DEPORTEE, IT IS FOUNDED HERE ON UNCONTESTED ALLEGATIONS OF ADEQUATE
FACTS THAT MUST BE TAKEN AS TRUE.  ALTHOUGH THE COMMITTEE WHICH
FORMULATED THE FEDERAL RULES OF CIVIL PROCEDURE TWICE MADE A HEARING ON
EVIDENCE A REQUIREMENT FOR THE ENTRY OF A DEFAULT JUDGMENT, RULE
55(B)(2) AND (E), NO SUCH REQUIREMENT WAS EXPRESSED FOR CASES OF THIS
SORT.  EXCEPT FOR CASES OF THE SORT SPECIFIED IN (B)(2) AND (E), AND
THOSE WHERE THE AMOUNT OF DAMAGES IS IN QUESTION, I THINK THE MEANING
OF THE RULE IS THAT A DEFAULT IS THE EQUIVALENT OF AN ADMISSION OF
ALLEGATIONS WHICH ARE WELL PLEADED. 

THE COURT SEEKS SUPPORT IN THE FACT THAT OTHER SECTIONS OF THE
NATIONALITY ACT, 8 U.S.C. SECS. 738(E) AND 746, PROVIDE FOR
DENATURALIZATION WHEN THE ALIEN HAS BEEN CONVICTED OF THE CRIME OF
PROCURING HIS CERTIFICATE OF NATURALIZATION BY KNOWINGLY FALSE
STATEMENTS UNDER OATH.  THE PROTECTIONS WHICH SAFEGUARD THE ALIEN IN
SUCH A CRIMINAL PROSECUTION ARE SOUGHT TO BE EXTENDED TO HIM IN CIVIL
PROCEEDINGS UNDER SEC. 738.  TO ME THE VERY EXISTENCE IN THE ACT OF TWO
PARALLEL METHODS OF DENATURALIZATION INDICATE THAT THE PROTECTIONS
INHERENT IN THE CRIMINAL PROCEEDING ARE NOT INTENDED TO APPLY TO THE
CIVIL PROCEEDING SUCH AS WE HAVE HERE. 

SINCE NO EXPRESSION OF CONGRESS CAN BE FOUND, EITHER IN THE FEDERAL
RULES OR IN THE NATIONALITY ACT, TO THE EFFECT THAT EVIDENCE IS
NECESSARY TO VALIDATE A CIVIL DEFAULT JUDGMENT OF DENATURALIZATION, I
DO NOT THINK IT IS THE FUNCTION OF THIS COURT TO SUPPLY ONE. 

THE SUGGESTION OF THE COURT IN CAPTION FIFTH THAT THE GOVERNMENT'S
COMPLAINT DOES NOT STATE A CAUSE OF ACTION, SEEMS UNWARRANTED. 
CERTAINLY THE GOVERNMENT IS NOT REQUIRED TO PLEAD ALL ITS EVIDENCE. 
SINCE THE COMPLAINT ALLEGED FRAUD AND SPECIFIED IN PARAGRAPH 6 THEREOF
THE CIRCUMSTANCES CONSTITUTING FRAUD, SET OUT IN THE FIRST PARAGRAPH OF
THIS DISSENT, I THINK KNAUER V. UNITED STATES, 328 U.S. 654, BELIES THE
SUGGESTION THAT THE COMPLAINT IS DEFECTIVE. 

THUS I DISSENT FROM THE SUGGESTION THAT THE JUDGMENT AGAINST
KLAPPROTT CAN BE VACATED AS VOID UNDER RULE 60(B)(4). 

SECOND.  THE COURT HOLDS THAT PETITIONER IS ENTITLED TO RELIEF UNDER
(6), THE "OTHER REASON" CLAUSE OF RULE 60(B).  THIS FOLLOWS, IT IS
SAID, FROM HIS ALLEGATIONS THAT HE WAS HELD IN CUSTODY AND SUBJECTED TO
SEVERAL CRIMINAL PROSECUTIONS BY THE UNITED STATES.  AS I SEE IT, SUCH
ALLEGATIONS ADD NOTHING TO THE SINGLE GROUND ON WHICH RELIEF COULD HAVE
BEEN BASED, I.E., "MISTAKE, INADVERTENCE, SURPRISE, OR EXCUSABLE
NEGLECT."  RULE 60(B)(1).  I DO NOT MEAN TO SAY THAT AN ARREST AND A
SUBSEQUENT PERIOD OF IMPRISONMENT WHICH INTERFERED TO THE EXTENT OF
DEPRIVING HIM OF THE OPPORTUNITY TO GET LEGAL ASSISTANCE OR THE ABILITY
TO LITIGATE WOULD NOT ENTITLE HIM TO RELIEF.  IN VIEW OF THE FACTS SET
OUT IN PETITIONER'S OWN AFFIDAVIT, HOWEVER, IT IS DIFFICULT TO SEE HOW
IMPRISONMENT SUBJECTED HIM TO ANY INJUSTICE IN THIS CASE OR HOW IT
FURNISHES HIM WITH AN ADDITIONAL GROUND FOR RELIEF.  THUS PETITIONER
DOES NOT ALLEGE THAT HE REQUESTED THE RETURN TO HIM OR THE MAILING OF
HIS LETTER TO THE AMERICAN CIVIL LIBERTIES UNION.  HE DOES NOT, IN FACT
COULD NOT, CLAIM THAT IMPRISONMENT DEPRIVED HIM OF THE RIGHT TO
COUNSEL.  ON THE CONTRARY HE ADMITS THAT COUNSEL WAS MADE AVAILABLE IN
TIME TO ENTER AN APPEARANCE IN THE DENATURALIZATION PROCEEDING, BUT
THAT COUNSEL NEGLIGENTLY FAILED TO DO SO.  PETITIONER'S ABILITY TO
LITIGATE DURING THIS PERIOD OF PURPORTEDLY DRASTIC CONFINEMENT IS
ILLUSTRATED BY THE FACT THAT IN 1945, AS STATED IN HIS AFFIDAVIT, HE
BEGAN AND CONTINUED UNTIL ITS UNSUCCESSFUL TERMINATION A SUIT TO ENJOIN
THE DEPARTMENT OF JUSTICE FROM DEPORTING HIM. 

SINCE THE FACTS ALLEGED AMOUNT TO A SHOWING OF MISTAKE, INADVERTENCE,
OR EXCUSABLE NEGLECT ONLY, AND SINCE A DEFINITE TIME LIMIT OF ONE YEAR
IS IMPOSED ON RELIEF BASED ON THESE GROUNDS, THE RULE CANNOT BE SAID TO
CONTEMPLATE A REMEDY WITHOUT TIME LIMIT BASED ON THE SAME FACTS. 
OTHERWISE THE WORD "OTHER" IN CLAUSE (6) IS RENDERED MEANINGLESS.  FN6 

THE COURT INTIMATES THAT PETITIONER WAS WOEFULLY MISTREATED BY THE
GOVERNMENT.  IF BY THIS IT IS MEANT THAT HE IS ENTITLED TO RELIEF FROM
JUDGMENT BASED ON "MISCONDUCT OF AN ADVERSE PARTY," RULE 60(B)(3), THE
ANSWER IS THAT RELIEF ON THIS GROUND IS LIMITED TO ONE YEAR FROM THE
JUDGMENT.  ON ANALYSIS, HOWEVER, THE SUGGESTION THAT PETITIONER'S
TRIALS HAVE BEEN CARRIED ON IN A WAY CONTRARY TO CONCEPTS OF JUSTICE AS
UNDERSTOOD IN THE UNITED STATES AND IN A MANNER INCOMPATIBLE WITH THE
PATTERN OF AMERICAN JUSTICE FALLS FLAT IN VIEW OF THE SIMPLE FACTS. 
KLAPPROTT HAD COUNSEL AND OPEN HEARINGS.  THE COURTS HAVE CLEARED HIM
OF COMPLICITY IN A CONSPIRACY TO IMPEDE THE RAISING OF AN ARMY AND HAVE
DISMISSED A PROSECUTION FOR SEDITIOUS CONSPIRACY.  TO BE CLEARED ON
THESE CHARGES CAN HAVE NO EFFECT UPON THE PROPRIETY OF HIS DEPORTATION
FOR VIOLATION OF OUR NATURALIZATION LAWS. 

THE LIMITATIONS IMPOSED BY RULE 60(B) ARE EXPRESSIONS OF THE POLICY
OF FINALLY CONCLUDING LITIGATION WITHIN A REASONABLE TIME.  SUCH
TERMINATION OF LAWSUITS IS ESSENTIAL TO THE EFFICIENT ADMINISTRATION OF
JUSTICE.  I WOULD NOT FRUSTRATE THE POLICY BY ALLOWING LITIGANTS TO
UPSET JUDGMENTS OF LONG STANDING ON ALLEGATIONS SUCH AS KLAPPROTT'S. 

FN1  "(A)  IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT
ATTORNEYS FOR THE RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD
CAUSE THEREFOR, TO INSTITUTE PROCEEDINGS IN ANY COURT SPECIFIED IN
SUBSECTION (A) OF SECTION 701 OF THIS TITLE IN THE JUDICIAL DISTRICT IN
WHICH THE NATURALIZED CITIZEN MAY RESIDE AT THE TIME OF BRINGING SUIT,
FOR THE PURPOSE OF REVOKING AND SETTING ASIDE THE ORDER ADMITTING SUCH
PERSON TO CITIZENSHIP AND CANCELING THE CERTIFICATE OF NATURALIZATION
ON THE GROUND OF FRAUD OR ON THE GROUND THAT SUCH ORDER AND CERTIFICATE
OF NATURALIZATION WERE ILLEGALLY PROCURED. 

"(B)  THE PARTY TO WHOM WAS GRANTED THE NATURALIZATION ALLEGED TO
HAVE BEEN FRAUDULENTLY OR ILLEGALLY PROCURED SHALL, IN ANY SUCH
PROCEEDINGS UNDER SUBSECTION (A) OF THIS SECTION, HAVE SIXTY DAYS'
PERSONAL NOTICE IN WHICH TO MAKE ANSWER TO THE PETITION OF THE UNITED
STATES; AND IF SUCH NATURALIZED PERSON BE ABSENT FROM THE UNITED STATES
OR FROM THE JUDICIAL DISTRICT IN WHICH SUCH PERSON LAST HAD HIS
RESIDENCE, SUCH NOTICE SHALL BE GIVEN BY PUBLICATION IN THE MANNER
PROVIDED FOR THE SERVICE OF SUMMONS BY PUBLICATION OR UPON ABSENTEES BY
THE LAWS OF THE STATE OR THE PLACE WHERE SUCH SUIT IS BROUGHT." 

FN2  CONVICTION SUBSEQUENTLY REVERSED IN KEEGAN V. UNITED STATES, 325
U.S. 478. 

FN3  UNITED STATES V. MCWILLIAMS, 82 U.S. APP. D.C. 259, 163 F.2D
695. 

FN4  RULE 60(B): 

"ON MOTION AND UPON SUCH TERMS AS ARE JUST, THE COURT MAY RELIEVE A
PARTY OR HIS LEGAL REPRESENTATIVE FROM A FINAL JUDGMENT, ORDER, OR
PROCEEDING FOR THE FOLLOWING REASONS:  (1) MISTAKE, INADVERTENCE,
SURPRISE, OR EXCUSABLE NEGLECT; (2) NEWLY DISCOVERED EVIDENCE WHICH BY
DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME TO MOVE FOR A NEW
TRIAL UNDER RULE 59(B); (3) FRAUD (WHETHER HERETOFORE DENOMINATED
INTRINSIC OR EXTRINSIC), MISREPRESENTATION, OR OTHER MISCONDUCT OF AN
ADVERSE PARTY; (4) THE JUDGMENT IS VOID; (5) THE JUDGMENT HAS BEEN
SATISFIED, RELEASED, OR DISCHARGED, OR A PRIOR JUDGMENT UPON WHICH IT
IS BASED HAS BEEN REVERSED OR OTHERWISE VACATED, OR IT IS NO LONGER
EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION; OR (6)
ANY OTHER REASON JUSTIFYING RELIEF FROM THE OPERATION OF THE JUDGMENT. 
THE MOTION SHALL BE MADE WITHIN A REASONABLE TIME, AND FOR REASONS (1),
(2), AND (3) NOT MORE THAN ONE YEAR AFTER THE JUDGMENT, ORDER, OR
PROCEEDING WAS ENTERED OR TAKEN.  A MOTION UNDER THIS SUBDIVISION (B)
DOES NOT AFFECT THE FINALITY OF A JUDGMENT OR SUSPEND ITS OPERATION. 
THIS RULE DOES NOT LIMIT THE POWER OF A COURT TO ENTERTAIN AN
INDEPENDENT ACTION TO RELIEVE A PARTY FROM A JUDGMENT, ORDER, OR
PROCEEDING, OR TO GRANT RELIEF TO A DEFENDANT NOT ACTUALLY PERSONALLY
NOTIFIED AS PROVIDED IN SECTION 57 OF THE JUDICIAL CODE, U.S.C., TITLE
28, SEC. 118, OR TO SET ASIDE A JUDGMENT FOR FRAUD UPON THE COURT. 
WRITS OF CORAM NOBIS, CORAM VOBIS, AUDITA QUERELA, AND BILLS OF REVIEW
AND BILLS IN THE NATURE OF A BILL OF REVIEW, ARE ABOLISHED, AND THE
PROCEDURE FOR OBTAINING ANY RELIEF FROM A JUDGMENT SHALL BE BY MOTION
AS PRESCRIBED IN THESE RULES OR BY AN INDEPENDENT ACTION." 

FN5  A SUBSEQUENT SECTION, 54 STAT. 1163, 8 U.S.C. SEC. 746(A)(1) AND
(D), SPECIFICALLY PROVIDING FOR THE CRIMINAL PENALTIES OF FINE AND
IMPRISONMENT FOR THE UTTERANCE OF A FALSE OATH SUCH AS THIS, INDICATES
AN INTENTION THAT PROCEEDINGS UNDER SEC. 338 ARE NOT CRIMINAL. 

CF. KNAUER V. UNITED STATES, 328 U.S. 654, 671; LURIA V. UNITED
STATES, 231 U.S. 9, 27-28; SOURINO V. UNITED STATES, 86 F.2D 309;
UNITED STATES V. WEZEL, 49 F.SUPP.  16, 17. 

FN6  CF. WALLACE V. UNITED STATES, 142 F.2D 240, 244. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

AMERICAN CITIZENSHIP OTHER THAN WHEN ACQUIRED BY BIRTH RESTS ON A
JUDICIAL JUDGMENT OF NATURALIZATION.  TUTUN V. UNITED STATES, 270 U.S.
568.  CONGRESS HAS EXPLICITLY DEFINED THE PROCEDURES FOR ANNULLING SUCH
A JUDGMENT.  JOHANNESSEN V. UNITED STATES, 225 U.S. 227; LURIA V.
UNITED STATES, 231 U.S. 9; SEC. 15 OF THE ACT OF JUNE 29, 1906, 34
STAT. 596, 601, NOW FORMULATED IN 54 STAT. 1158, 8 U.S.C. SEC. 738. 
NEITHER IN ITS TERMS NOR ON A FAIR INTERPRETATION OF OUR NATURALIZATION
LAWS HAS CONGRESS INDICATED THAT SUCH A JUDGMENT - THE CERTIFICATE OF
NATURALIZATION - CANNOT BE ANNULLED BY DEFAULT, THAT IS, WITHOUT ACTIVE
CONTEST AGAINST SUCH ANNULMENT, PROVIDED THAT AMPLE OPPORTUNITY HAS IN
FACT BEEN AFFORDED TO A CITIZEN TO CONTEST.  THIS COURT IS NOT
JUSTIFIED IN ADDING A REQUIREMENT TO THE CANCELLATION PROCEEDINGS THAT
CONGRESS HAS SEEN FIT TO WITHHOLD UNLESS SOME PROVISION OF THE
CONSTITUTION SO DEMANDS.  THE ONLY POSSIBLE PROVISION ON WHICH AN
ARGUMENT CAN BE BASED THAT CITIZENSHIP CANNOT BE CANCELED BY A DEFAULT
JUDGMENT IS THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  I REJECT
THE SUGGESTION THAT IT OFFENDS DUE PROCESS FOR A JUDGMENT OF
NATURALIZATION OBTAINED BY FRAUD TO BE SET ASIDE IF THE DEFRAUDING
ALIEN IS AFFORDED AMPLE OPPORTUNITY TO CONTEST THE GOVERNMENT'S CLAIM
THAT HE OBTAINED HIS CITIZENSHIP THROUGH FRAUD AND CHOOSES NOT TO AVAIL
HIMSELF OF THAT OPPORTUNITY BUT ALLOWS A JUDGMENT OF CANCELLATION TO GO
BY DEFAULT. 

BUT IN REJECTING THE CONTENTION THAT CITIZENSHIP CANNOT BE LOST BY A
DEFAULT JUDGMENT, ONE DOES NOT NECESSARILY EMBRACE THE OTHER EXTREME OF
ASSIMILATING A NATURALIZATION JUDGMENT TO ANY OTHER CIVIL JUDGMENT. 
THIS COURT HAS HELD THAT BECAUSE A NATURALIZATION JUDGMENT INVOLVES
INTERESTS OF A DIFFERENT ORDER FROM THOSE INVOLVED IN OTHER CIVIL
PROCEEDINGS, THE ANNULMENT OF SUCH A JUDGMENT IS GUIDED BY
CONSIDERATIONS QUALITATIVELY DIFFERENT FROM THOSE THAT GOVERN ANNULMENT
OF ORDINARY JUDGMENTS.  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118;
BAUMGARTNER V. UNITED STATES, 322 U.S. 665.  THE CONSIDERATIONS THAT
SET A CONTESTED PROCEEDING FOR CANCELLING A NATURALIZATION JUDGMENT
APART FROM OTHER SUITS TO ANNUL A JUDGMENT, ARE EQUALLY RELEVANT TO A
DEFAULT JUDGMENT CAUSING SUCH CANCELLATION.  TO BE SURE, THE PUBLIC
INTEREST IN PUTTING A FAIR END TO LITIGATION AND IN NOT ALLOWING PEOPLE
TO SLEEP ON THEIR RIGHTS HAS ITS RIGHTFUL CLAIM EVEN IN PROCEEDINGS
RESULTING IN DEPRIVATION OF CITIZENSHIP.  BUT BECAUSE CITIZENSHIP HAS
SUCH RAMIFYING SIGNIFICANCE IN THE FATE OF AN INDIVIDUAL AND OF THOSE
DEPENDENT UPON HIM, THE PUBLIC INTEREST TO BE SAFEGUARDED IN THE
ADMINISTRATION OF JUSTICE WILL NOT BE NEGLECTED IF COURTS LOOK MORE
SHARPLY AND DEAL LESS SUMMARILY WHEN ASKED TO SET ASIDE A DEFAULT
JUDGMENT FOR CANCELLATION OF CITIZENSHIP THAN IS REQUIRED OF THEM IN
SETTING ASIDE OTHER DEFAULT JUDGMENTS. 

IT IS IN THE LIGHT OF THESE GENERAL CONSIDERATIONS THAT I WOULD
DISPOSE OF THE PRESENT CASE.  I DEEM IT GOVERNED BY THE LIBERALIZING
AMENDMENT TO RULE 60(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE EVEN
THOUGH THAT BECAME EFFECTIVE AFTER THE DECISION BELOW.  IT IS OF COURSE
NOT A HARD AND FAST RULE THAT PROCEDURAL CHANGES ARE TO BE
PROSPECTIVELY APPLIED TO A PENDING LITIGATION AT ANY STAGE AT WHICH IT
MAY BE POSSIBLE TO DO SO WITHOUT WORKING AN INJUSTICE.  BUT SINCE
CITIZENSHIP IS AT STAKE AND THIS IS IN EFFECT AN APPEAL IN EQUITY TO BE
DEALT WITH AS OF THE TIME OF ADJUDICATION, IT SEEMS MORE CONSONANT WITH
EQUITABLE CONSIDERATIONS TO JUDGE THE CASE ON THE BASIS OF THE RULE NOW
IN FORCE, EVEN THOUGH THE LOWER COURT DID NOT HAVE THE OPPORTUNITY TO
APPLY IT. 

IF THE PETITIONER HAD PAID NO ATTENTION TO THE PROCEEDING BROUGHT TO
REVOKE HIS CITIZENSHIP, HE WOULD, IN MY OPINION, HAVE NO GROUND FOR
OPENING UP THE DEFAULT JUDGMENT SIMPLY BECAUSE DURING ALL THE YEARS IN
QUESTION HE WAS INCARCERATED.  MEN CAN PRESS THEIR CLAIMS FROM BEHIND
PRISON WALLS, AS IS PROVED BY THE FACT THAT PERHAPS A THIRD OF THE
CASES FOR WHICH REVIEW IS SOUGHT IN THIS COURT COME FROM
PENITENTIARIES.  BUT KLAPPROTT WAS NOT INDIFFERENT TO THE PROCEEDING TO
SET ASIDE HIS CITIZENSHIP.  HE TOOK ACTIVE MEASURES OF DEFENSE WHICH
WERE ABORTED THROUGH NO FAULT OF HIS OWN.  TO BE SURE, HE DID NOT
FOLLOW UP THESE EFFORTS, BUT WHAT HE IS SAYING IN THE MOTION MADE AFTER
HIS CRIMINAL CASES WERE ENDED IS IN SUBSTANCE THAT HE WAS SO
PREOCCUPIED WITH DEFENDING HIMSELF AGAINST THE DIRE CHARGES OF SEDITION
(THE CONVICTION FOR WHICH THIS COURT SET ASIDE IN KEEGAN V. UNITED
STATES, 325 U.S. 478) AND THE THREAT OF DEPORTATION, THAT THE NEW
JERSEY CANCELLATION PROCEEDING NATURALLY DROPPED FROM HIS MIND AFTER HE
HAD TAKEN WHAT HE THOUGHT APPROPRIATE STEPS FOR HIS PROTECTION.  THE
GOVERNMENT IN EFFECT DEMURRED TO THIS CONTENTION AND THE DISTRICT
COURT'S ACTION, AFFIRMED BY THE COURT OF APPEALS, PRACTICALLY RULED AS
A MATTER OF LAW THAT THE CLAIM OF KLAPPROTT, EVEN IF TRUE, AFFORDS NO
RELIEF.  IT IS TO ME SIGNIFICANT THAT ONE OF THE TWO AFFIRMING JUDGES
OF THE COURT OF APPEALS DECIDED THE CASE LARGELY ON A CLOSE READING OF
THE OLD RULE 60(B) AND THAT THE OTHER RESTED HIS CASE ON LACHES, WHILE
THIS COURT FAILS TO DRAW ON LACHES FOR THE SUPPORT OF ITS CONCLUSION. 

RULE 60(B) NOW PROVIDES FIVE GROUNDS FOR RELIEF FROM DEFAULT
JUDGMENTS AND A SIXTH CATCH-ALL GROUND, "ANY OTHER REASON JUSTIFYING
RELIEF FROM THE OPERATION OF THE JUDGMENT."  FN1  THE ONLY ONE OF THE
FIRST FIVE REASONS TO WHICH KLAPPROTT'S CONDUCT, AS EXPLICITLY
NARRATED, MAY PLAUSIBLY BE ASSIGNED IS THAT OF "EXCUSABLE NEGLECT,"
RELIEF FROM WHICH MUST BE OBTAINED WITHIN A YEAR AFTER A DEFAULT
JUDGMENT.  BUT I THINK THAT IF THE INFERENCES FAIRLY TO BE DRAWN FROM
THE CIRCUMSTANCES NARRATED BY KLAPPROTT WERE FOUND TO BE TRUE, THEY
WOULD TAKE HIS CASE OUTSIDE OF THE CHARACTERIZATION OF "NEGLECT,"
BECAUSE "NEGLECT" IN THE CONTEXT OF ITS SUBJECT MATTER CARRIES THE IDEA
OF NEGLIGENCE AND NOT MERELY OF NON-ACTION, AND WOULD CONSTITUTE A
DIFFERENT REASON "JUSTIFYING RELIEF FROM THE OPERATION OF THE
JUDGMENT."  WHEN A CLAIM FOR CITIZENSHIP IS AT STAKE, WE OUGHT TO READ
A COMPLAINT WITH A LIBERALITY THAT IS THE ANTITHESIS OF BARON PARKE'S
"ALMOST SUPERSTITIOUS REVERENCE FOR THE DARK TECHNICALITIES OF SPECIAL
PLEADING."  SEE 15 DICT.  NAT.  BIOG. 226.  THEREFORE, WHAT FAIRLY
EMANATES FROM SUCH A COMPLAINT SHOULD BE TREATED AS THOUGH FORMALLY
ALLEGED.  AND SO I WOULD NOT DENY KLAPPROTT AN OPPORTUNITY, EVEN AT
THIS LATE STAGE, TO ESTABLISH AS A PSYCHOLOGICAL FACT WHAT HIS
ALLEGATIONS IMPLY, NAMELY THAT THE HARASSING CRIMINAL PROCEEDINGS
AGAINST HIM HAD SO PREOCCUPIED HIS MIND THAT HE WAS NOT GUILTY OF
NEGLIGENCE IN FAILING TO DO MORE THAN HE INITIALLY DID IN SEEKING TO
DEFEND THE DENATURALIZATION PROCEEDING.  BUT I WOULD NOT REGARD SUCH A
PSYCHOLOGICAL ISSUE ESTABLISHED AS A FACT MERELY BECAUSE THE GOVERNMENT
IN EFFECT DEMURRED TO HIS COMPLAINT.  SINCE THE NATURE OF THE ULTIMATE
ISSUE - FORFEITURE OF CITIZENSHIP - IS NOT TO BE GOVERNED BY THE
ORDINARY RULES OF DEFAULT JUDGMENTS, NEITHER SHOULD THE CLAIM OF A
STATE OF MIND BE TAKEN AS PROVED SIMPLY BECAUSE THE GOVERNMENT, FEELING
ITSELF JUSTIFIED IN RESTING ON A PURELY LEGAL DEFENSE, DID NOT DENY THE
EXISTENCE OF THAT STATE OF MIND. 

TO RULE OUT THE OPPORTUNITY TO ESTABLISH THE PSYCHOLOGICAL
IMPLICATIONS OF THE COMPLAINT WOULD BE TO MAKE ITS DENIAL A RULE OF
LAW.  IT WOULD NOT TAKE MUCH OF THE TRIAL COURT'S TIME TO ALLOW
KLAPPROTT TO ESTABLISH THEM IF HE CAN.  THE TIME WOULD BE WELL SPENT
EVEN IF HE SHOULD FAIL TO DO SO; IT WOULD BE MORE CONSONANT WITH THE
SAFEGUARDS WHICH THIS COURT HAS PROPERLY THROWN AROUND THE WITHDRAWAL
OF CITIZENSHIP THAN IS THE SUMMARY DISPOSITION THAT WAS MADE.  BUT I
WOULD REQUIRE KLAPPROTT TO SATISFY THE TRIAL JUDGE THAT WHAT HE
IMPLIEDLY ALLEGES IS TRUE, AND IT IS HERE THAT I PART COMPANY WITH THE
MAJORITY. 

FN1  "RULE 60.  RELIEF FROM JUDGMENT OR ORDER. 

     .         .         .         .       . 

"(B)  MISTAKES; INADVERTENCE; EXCUSABLE NEGLECT; NEWLY DISCOVERED
EVIDENCE; FRAUD, ETC.  ON MOTION AND UPON SUCH TERMS AS ARE JUST, THE
COURT MAY RELIEVE A PARTY OR HIS LEGAL REPRESENTATIVE FROM A FINAL
JUDGMENT, ORDER, OR PROCEEDING FOR THE FOLLOWING REASONS:  (1) MISTAKE,
INADVERTENCE, SURPRISE, OR EXCUSABLE NEGLECT; (2) NEWLY DISCOVERED
EVIDENCE WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME
TO MOVE FOR A NEW TRIAL UNDER RULE 59(B); (3) FRAUD (WHETHER HERETOFORE
DENOMINATED INTRINSIC OR EXTRINSIC), MISREPRESENTATION, OR OTHER
MISCONDUCT OF AN ADVERSE PARTY; (4) THE JUDGMENT IS VOID; (5) THE
JUDGMENT HAS BEEN SATISFIED, RELEASED, OR DISCHARGED, OR A PRIOR
JUDGMENT UPON WHICH IT IS BASED HAS BEEN REVERSED OR OTHERWISE VACATED,
OR IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE
APPLICATION; OR (6) ANY OTHER REASON JUSTIFYING RELIEF FROM THE
OPERATION OF THE JUDGMENT.  THE MOTION SHALL BE MADE WITHIN A
REASONABLE TIME, AND FOR REASONS (1), (2), AND (3) NOT MORE THAN ONE
YEAR AFTER THE JUDGMENT, ORDER, OR PROCEEDING WAS ENTERED OR TAKEN. 
..." 
..END :



COMM'R V. ESTATE OF CHURCH, 335 U.S. 632 


NO. 5.  ARGUED OCTOBER 24, 1947.  - REARGUED OCTOBER 12, 1948.  -
DECIDED JANUARY 17, 1949.  - 161 F.2D 11, REVERSED. 


1.  IN 1924 DECEDENT, THEN 21 YEARS OLD, UNMARRIED, AND CHILDLESS,
MADE A TRANSFER IN TRUST IN NEW YORK IN ACCORDANCE WITH STATE LAW,
NAMING HIMSELF AND TWO OF HIS BROTHERS AS CO-TRUSTEES.  CERTAIN
CORPORATE STOCKS WERE TRANSFERRED TO THE TRUSTEES, WHO WERE EMPOWERED
TO HOLD AND SELL THEM AND TO REINVEST THE PROCEEDS.  DECEDENT RESERVED
NO POWER TO ALTER, AMEND, OR REVOKE, BUT REQUIRED THE TRUSTEES TO PAY
TO HIM THE INCOME FOR LIFE.  THE TRUST WAS TO TERMINATE AT DECEDENT'S
DEATH, WHICH OCCURRED IN 1939.  SOME PROVISION WAS MADE FOR
DISTRIBUTION OF THE TRUST ASSETS AT DECEDENT'S DEATH, BUT NO PROVISION
WAS MADE FOR DISTRIBUTION IF DECEDENT DIED WITHOUT ISSUE AND NONE OF
HIS BROTHERS OR SISTERS, OR THEIR CHILDREN, SURVIVED HIM.  HELD:  THE
DECEDENT HAVING RESERVED THE INCOME FROM THE TRUST PROPERTY FOR LIFE,
THE TRANSFER WAS ONE "INTENDED TO TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER HIS DEATH," WITHIN THE MEANING OF SEC. 811(C) OF
THE INTERNAL REVENUE CODE, AND THE VALUE OF THE CORPUS OF THE TRUST WAS
PROPERLY INCLUDED IN THE GROSS ESTATE OF DECEDENT FOR PURPOSES OF THE
FEDERAL ESTATE TAX.  PP. 633-651. 

2.  A TRUST TRANSACTION CANNOT BE HELD TO ALIENATE ALL OF A SETTLOR'S
"POSSESSION OR ENJOYMENT" UNDER SEC. 811(C) UNLESS IT EFFECTS A BONA
FIDE TRANSFER IN WHICH THE SETTLOR, ABSOLUTELY, UNEQUIVOCALLY,
IRREVOCABLY, AND WITHOUT POSSIBLE RESERVATIONS, PARTS WITH ALL OF HIS
TITLE AND ALL OF HIS POSSESSION AND ALL OF HIS ENJOYMENT OF THE
TRANSFERRED PROPERTY.  AFTER SUCH A TRANSFER HAS BEEN MADE, THE SETTLOR
MUST BE LEFT WITH NO PRESENT LEGAL TITLE IN THE PROPERTY, NO POSSIBLE
REVERSIONARY INTEREST IN THAT TITLE, AND NO RIGHT TO POSSESS OR TO
ENJOY THE PROPERTY THEN OR THERAFTER.  P. 645. 

3.  HELVERING V. HALLOCK, 309 U.S. 106, REAFFIRMED; MAY V. HEINER,
281 U.S. 238, HELD NO LONGER CONTROLLING ON THE INTERPRETATION OF THE
"POSSESSION OR ENJOYMENT" PROVISION OF SEC. 811(C).  PP. 636-646. 

4.  REAFFIRMANCE OF MAY V. HEINER IS NOT REQUIRED BY THE DOCTRINE OF
STARE DECISIS, NOR BY THE JOINT RESOLUTION OF MARCH 3, 1931, NOR BY THE
DECISIONS OF THIS COURT IN HASSETT V. WELCH AND HELVERING V. MARSHALL,
303 U.S. 303.  PP. 646-651. 

COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF CHURCH. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

THE COMMISSIONER DETERMINED THAT THE CORPUS OF THE TRUST IN QUESTION
WAS INCLUDIBLE IN THE DECEDENT'S GROSS ESTATE AS A TRANSFER INTENDED TO
TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER DECEDENT'S DEATH. 
THE TAX COURT OVERRULED THAT DETERMINATION.  THE COURT OF APPEALS
AFFIRMED.  161 F.2D 11.  THIS COURT GRANTED CERTIORARI.  331 U.S. 803. 
REVERSED, P. 651. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS CONCERNING THE INTERPRETATION OF THAT PART
OF SEC 811(C) OF THE INTERNAL REVENUE CODE WHICH FOR ESTATE TAX
PURPOSES REQUIRES INCLUDING IN A DECEDENT'S GROSS ESTATE THE VALUE OF
ALL THE PROPERTY THE DECEDENT HAD TRANSFERRED BY TRUST OR OTHERWISE
BEFORE HIS DEATH WHICH WAS "INTENDED TO TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER HIS DEATH  ...  ."  ESTATE OF SPIEGEL V.
COMMISSIONER, POST, P. 701, INVOLVES QUESTIONS WHICH ALSO DEPEND UPON
INTERPRETATION OF THAT PROVISION OF SEC. 811(C).  AFTER ARGUMENT AND
CONSIDERATION OF THE CASES AT THE OCTOBER 1947 TERM, AN ORDER WAS
ENTERED RESTORING THEM TO THE DOCKET AND REQUESTING COUNSEL UPON
REARGUMENT PARTICULARLY TO DISCUSS CERTAIN QUESTIONS BROADER IN SCOPE
THAN THOSE ORIGINALLY PRESENTED AND ARGUED.  JOURNAL SUPREME COURT,
JUNE 21, 1948, 296-298.  THOSE ADDITIONAL QUESTIONS HAVE NOW BEEN FULLY
TREATED IN BRIEFS AND ORAL ARGUMENTS. 

THIS CASE INVOLVES A TRUST EXECUTED IN 1924 BY FRANCOIS CHURCH, THEN
TWENTY-ONE YEARS OF AGE, UNMARRIED AND CHILDLESS.  HE EXECUTED THE
TRUST IN NEW YORK IN ACCORDANCE WITH STATE LAW.  CHURCH AND TWO
BROTHERS WERE NAMED CO-TRUSTEES.  CERTAIN CORPORATE STOCKS WERE
TRANSFERRED TO THE TRUST WITH GRANT OF POWER TO THE TRUSTEES TO HOLD
AND SELL THE STOCKS AND TO REINVEST THE PROCEEDS.  CHURCH RESERVED NO
POWER TO ALTER, AMEND, OR REVOKE, BUT REQUIRED THE TRUSTEES TO PAY HIM
THE INCOME FOR LIFE.  THIS RESERVATION OF LIFE INCOME IS THE DECISIVE
FACTOR HERE. 

AT CHURCH'S DEATH (WHICH OCCURRED IN 1939) THE TRUST WAS TO TERMINATE
AND THE TRUST AGREEMENT CONTAINED SOME DIRECTIONS FOR DISTRIBUTION OF
THE TRUST ASSETS WHEN HE DIED.  THESE DIRECTIONS AS TO FINAL
DISTRIBUTION DID NOT, HOWEVER, PROVIDE FOR ALL POSSIBLE CONTINGENCIES. 
IF CHURCH DIED WITHOUT CHILDREN AND WITHOUT ANY OF HIS BROTHERS OR
SISTERS, OR THEIR CHILDREN, SURVIVING HIM, THE TRUST INSTRUMENT MADE NO
PROVISION FOR DISPOSAL OF THE TRUST ASSETS.  HAD THIS UNLIKELY
POSSIBILITY COME TO PASS (AT HIS DEATH THERE WERE LIVING, FIVE
BROTHERS, ONE SISTER, AND TEN OF THEIR CHILDREN) THE DISTRIBUTION OF
THE TRUST ASSETS WOULD HAVE BEEN CONTROLLED BY NEW YORK LAW.  IT HAS
BEEN THE GOVERNMENT'S CONTENTION THAT UNDER NEW YORK LAW HAD THERE BEEN
NO SUCH SURVIVING TRUST BENEFICIARIES THE CORPUS WOULD HAVE REVERTED TO
THE DECEDENT'S ESTATE.  THIS POSSIBILITY OF REVERTER PLUS THE RETENTION
BY THE SETTLOR OF THE TRUST INCOME FOR LIFE, THE GOVERNMENT HAS ARGUED,
REQUIRES INCLUSION OF THE VALUE OF THE TRUST PROPERTY IN THE DECEDENT'S
GROSS ESTATE UNDER OUR HOLDING IN HELVERING V. HALLOCK, 309 U.S. 106. 

THE HALLOCK CASE HELD THAT WHERE A PERSON WHILE LIVING MAKES A
TRANSFER OF PROPERTY WHICH PROVIDES FOR A REVERSION OF THE CORPUS TO
THE DONOR UPON A CONTINGENCY TERMINABLE AT DEATH, THE VALUE OF THE
CORPUS SHOULD BE INCLUDED IN THE DECEDENT'S GROSS ESTATE UNDER THE
"POSSESSION OR ENJOYMENT" PROVISION OF SEC. 811(C) OF THE INTERNAL
REVENUE CODE.  FN1  IN THIS CASE, THE TAX COURT, RELYING UPON ITS
FORMER HOLDINGS  FN2  DECLARED THAT "THE MERE POSSIBILITY OF REVERTER
BY OPERATION OF LAW UPON A FAILURE OF THE TRUST, DUE TO THE DEATH OF
ALL THE REMAINDERMEN PRIOR TO THE DEATH OF DECEDENT, IS NOT SUCH A
POSSIBILITY AS TO COME WITHIN THE HALLOCK CASE."  THIS HOLDING MADE IT
UNNECESSARY FOR THE TAX COURT TO DECIDE THE DISPUTED QUESTION AS TO
WHETHER NEW YORK LAW OPERATED TO CREATE SUCH A REVERSIONARY INTEREST. 
THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, ONE JUDGE
DISSENTING, AFFIRMED ON THE GROUND THAT IT COULD NOT IDENTIFY A CLEAR
CUT MISTAKE OF LAW IN THE TAX COURT'S DECISION.  161 F.2D 11.  THE
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN THE SPIEGEL
CASE FOUND THAT UNDER ILLINOIS LAW THERE WAS A POSSIBILITY OF REVERTER
AND REVERSED THE TAX COURT, HOLDING THAT POSSIBLE REVERSION BY
OPERATION OF LAW REQUIRED INCLUSION OF A TRUST CORPUS IN A DECEDENT'S
ESTATE.  COMMISSIONER V. SPIEGEL'S ESTATE, 159 F.2D 257.  OTHER UNITED
STATES COURTS OF APPEAL HAVE HELD THE SAME.  FN3  BECAUSE OF THIS
CONFLICT WE GRANTED CERTIORARI IN THIS AND THE SPIEGEL CASE. 

COUNSEL FOR THE TWO ESTATES HAVE STRONGLY CONTENDED IN BOTH ARGUMENTS
OF THESE CASES THAT THE LAW OF NEITHER NEW YORK NOR ILLINOIS PROVIDES
FOR A POSSIBILITY OF REVERTER UNDER THE CIRCUMSTANCES PRESENTED.  THEY
ARGUE FURTHER THAT EVEN IF UNDER THE LAW OF THOSE STATES A POSSIBILITY
OF REVERTER DID EXIST, IT WOULD BE AN UNJUSTIFIABLE EXTENSION OF THE
HALLOCK RULE TO HOLD THAT SUCH A POSSIBILITY REQUIRES INCLUSION OF THE
VALUE OF A TRUST CORPUS IN A DECEDENT'S ESTATE.  THE RESPONDENT IN THIS
CASE POINTED OUT THE EXTREME IMPROBABILITY THAT THE DECEDENT WOULD HAVE
OUTLIVED ALL HIS BROTHERS, HIS SISTER, AND THEIR TEN CHILDREN.  HE
ARGUES THAT THE HAPPENING OF SUCH A CONTINGENCY WAS SO REMOTE, THE
MONEY VALUE OF SUCH A REVERSIONARY INTEREST WAS SO INFINITESIMAL, THAT
IT WOULD BE ENTIRELY UNREASONABLE TO HOLD THAT THE HALLOCK RULE
REQUIRES AN ESTATE TAX BECAUSE OF SUCH A CONTINGENCY.  BUT SEE FIDELITY
PHILADELPHIA TRUST CO. V. ROTHENSIES, 324 U.S. 108, 112. 

ARGUMENTS AND CONSIDERATION OF THIS AND THE SPIEGEL CASE BROUGHT
PROMINENTLY INTO FOCUS SHARP DIVISIONS AMONG COURTS, JUDGES AND LEGAL
COMMENTATORS, AS TO THE INTENDED SCOPE AND EFFECT OF OUR HALLOCK
DECISION, PARTICULARLY WHETHER OUR HOLDING AND OPINION IN THAT CASE ARE
SO INCOMPATIBLE WITH THE HOLDING AND OPINION IN MAY V. HEINER, 281 U.S.
238, THAT THE LATTER CAN NO LONGER BE ACCEPTED AS A CONTROLLING
INTERPRETATION OF THE "POSSESSION OR ENJOYMENT" PROVISION OF SEC.
811(C).  FN4  MAY V. HEINER HELD THAT THE CORPUS OF A TRUST TRANSFER
NEED NOT BE INCLUDED IN A SETTLOR'S ESTATE, EVEN THOUGH THE SETTLOR HAD
RETAINED FOR HIMSELF A LIFE INCOME FROM THE CORPUS.  WE HAVE CONCLUDED
THAT CONFUSION AND DOUBT AS TO THE EFFECT OF OUR HALLOCK CASE ON MAY V.
HEINER SHOULD BE SET AT REST IN THE INTEREST OF SOUND TAX AND JUDICIAL
ADMINISTRATION.  FURTHERMORE, IF MAY V. HEINER IS NO LONGER
CONTROLLING, THE VALUE OF THE CHURCH TRUST CORPUS WAS PROPERLY INCLUDED
IN THE GROSS ESTATE, WITHOUT REGARD TO THE MUCH DISCUSSED STATE LAW
QUESTION, SINCE CHURCH RESERVED A LIFE ESTATE FOR HIMSELF.  FOR REASONS
WHICH FOLLOW, WE CONCLUDE THAT THE HALLOCK AND MAY V. HEINER HOLDINGS
AND OPINIONS ARE IRRECONCILABLE.  SINCE WE ADHERE TO HALLOCK, THE MAY
V. HEINER INTERPRETATION OF THE "POSSESSION OR ENJOYMENT" PROVISIONS OF
SEC. 811(C) CAN NO LONGER BE ACCEPTED AS CORRECT. 

THE "POSSESSION OR ENJOYMENT" PROVISION APPEARING IN SEC. 811(C) SEEMS
TO HAVE ORIGINATED IN A PENNSYLVANIA INHERITANCE TAX LAW IN 1826.  FN5
AS EARLY AS 1884 THE SUPREME COURT OF PENNSYLVANIA HELD THAT WHERE A
LEGAL TRANSFER OF PROPERTY WAS MADE WHICH CARRIED WITH IT A RIGHT OF
POSSESSION WITH A RESERVATION BY THE GRANTOR OF INCOME AND PROFITS FROM
THE PROPERTY FOR HIS LIFE, THE TRANSFER WAS NOT INTENDED TO TAKE EFFECT
IN ENJOYMENT UNTIL THE GRANTOR'S DEATH:  "ONE CERTAINLY CANNOT BE
CONSIDERED, AS IN THE ACTUAL ENJOYMENT OF AN ESTATE, WHO HAS NO RIGHT
TO THE PROFITS OR INCOMES ARISING OR ACCRUING THEREFROM."  REISH, ADM'R
V. COMMONWEALTH, 106 PA. 521, 526.  THAT COURT FURTHER HELD THAT THE
"POSSESSION OR ENJOYMENT" CLAUSE DID NOT INVOLVE A MERE TECHNICAL
QUESTION OF TITLE, BUT THAT THE LAW IMPOSED THE DEATH TAX UNLESS ONE
HAD PARTED DURING HIS LIFE WITH HIS POSSESSION AND HIS TITLE AND HIS
ENJOYMENT.  IT WAS FURTHER HELD IN THAT CASE THAT THE TEST OF
"INTENDED" WAS NOT A SUBJECTIVE ONE, THAT THE QUESTION WAS NOT WHAT THE
PARTIES INTENDED TO DO, BUT WHAT THE TRANSACTION ACTUALLY EFFECTED AS
TO TITLE, POSSESSION AND ENJOYMENT. 

MOST OF THE STATES HAVE INCLUDED THE PENNSYLVANIA-ORIGINATED
"POSSESSION OR ENJOYMENT" CLAUSE IN DEATH TAX STATUTES, AND WITH WHAT
APPEARS TO BE COMPLETE UNANIMITY, THEY HAVE UP TO THIS DAY, DESPITE MAY
V. HEINER, SUBSTANTIALLY AGREED WITH THIS 1884 PENNSYLVANIA SUPREME
COURT INTERPRETATION.  FN6 CONGRESS USED THE "POSSESSION OR ENJOYMENT"
CLAUSE IN DEATH TAX LEGISLATION IN 1862, 1864, AND 1898.  12 STAT. 432,
485; 13 STAT. 223, 285; 30 STAT. 448, 464.  IN REFERRING TO THE
PROVISION IN THE 1898 ACT, THIS COURT SAID THAT IT MADE "THE LIABILITY
FOR TAXATION DEPEND, NOT UPON THE MERE VESTING IN A TECHNICAL SENSE OF
TITLE TO THE GIFT, BUT UPON THE ACTUAL POSSESSION OR ENJOYMENT
THEREOF."  VANDERBILT V. EIDMAN, 196 U.S. 480, 493.  AND FIVE YEARS
BEFORE THE 1916 ESTATE TAX STATUTE INCORPORATED THE "POSSESSION OR
ENJOYMENT" CLAUSE TO FRUSTRATE ESTATE TAX EVASIONS, 39 STAT. 756, 780,
THIS COURT HAD AFFIRMED A JUDGMENT OF THE NEW YORK COURT OF APPEALS
SUSTAINING THE CONSTITUTIONALITY OF ITS STATE INHERITANCE TAX IN AN
OPINION WHICH SAID: "IT IS TRUE THAT AN INGENIOUS MIND MAY DEVISE OTHER
MEANS OF AVOIDING AN INHERITANCE TAX, BUT THE ONE COMMONLY USED IS A
TRANSFER WITH RESERVATION OF A LIFE ESTATE."  MATTER OF KEENEY, 194
N.Y. 281, 287, 87 N.E. 428, 429; KEENEY V. NEW YORK, 222 U.S. 525.  AND
SEE HELVERING V. BULLARD, 303 U.S. 297, 302, WHERE THE FOREGOING
QUOTATION WAS REPEATED WITH SEEMING APPROVAL. 

FROM THE FIRST ESTATE TAX LAW IN 1916 UNTIL MAY V. HEINER, SUPRA, WAS
DECIDED IN 1930, TRUST TRANSFERS WHICH WERE DESIGNED TO DISTRIBUTE THE
CORPUS AT THE SETTLOR'S DEATH AND WHICH RESERVED A LIFE INCOME TO THE
SETTLOR HAD ALWAYS BEEN TREATED BY THE TREASURY DEPARTMENT AS TRANSFERS
"INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT  ...  HIS
DEATH."  THE REGULATIONS HAD SO PROVIDED AND MILLIONS OF DOLLARS HAD
BEEN COLLECTED FROM TAXPAYERS ON THIS BASIS.  SEE E.G., T.D. 2910, 21
TREAS. DEC. 771(1919); AND SEE 74 CONG. REC. 7078, 7198-7199(MARCH 3,
1931).  THIS PRINCIPLE OF ESTATE TAX LAW WAS SO WELL SETTLED IN 1928,
THAT THE UNITED STATES COURT OF APPEALS DECIDED MAY V. HEINER IN FAVOR
OF THE GOVERNMENT IN A ONE-SENTENCE PER CURIAM OPINION.  32 F.2D 1017. 
NEVERTHELESS, MARCH 2, 1931, THIS COURT FOLLOWED MAY V. HEINER IN THREE
CASES IN PER CURIAM OPINIONS, THUS UPSETTING THE CENTURY-OLD HISTORIC
MEANING AND THE LONG STANDING TREASURY INTERPRETATION OF THE
"POSSESSION OR ENJOYMENT" CLAUSE.  BURNET V. NORTHERN TRUST CO., 283
U.S. 782; MORSMAN V. BURNET, 283 U.S. 783; MCCORMICK V. BURNET, 283
U.S. 784. 

MARCH 3, 1931, THE NEXT DAY AFTER THE THREE PER CURIAM OPINIONS WERE
RENDERED, ACTING SECRETARY OF THE TREASURY OGDEN MILLS WROTE A LETTER
TO THE SPEAKER OF THE HOUSE EXPLAINING THE HOLDINGS IN MAY V. HEINER
AND THE THREE CASES DECIDED THE DAY BEFORE.  HE POINTED OUT THE
DISASTROUS EFFECTS THEY WOULD HAVE ON THE ESTATE TAX LAW AND URGED THAT
CONGRESS "IN ORDER TO PREVENT TAX EVASION," IMMEDIATELY "CORRECT THIS
SITUATION" BROUGHT ABOUT BY MAY V. HEINER AND THE OTHER CASES.  74
CONG. REC. 7198, 7199(1931).  HE EXPRESSED FEAR THAT WITHOUT SUCH
ACTION THE GOVERNMENT WOULD SUFFER "A LOSS IN EXCESS OF ONE-THIRD OF
THE REVENUE DERIVED FROM THE FEDERAL ESTATE TAX, WITH ANTICIPATED
REFUNDS OF IN EXCESS OF $25,000,000."  THE SECRETARY'S SURPRISE AT THE
DECISIONS AND HIS APPREHENSIONS AS TO THEIR TAX EVASION CONSEQUENCES
WERE REPEATED ON THE FLOOR OF THE HOUSE AND SENATE.  74 CONG. REC.
SUPRA.  SENATOR SMOOT, CHAIRMAN OF THE SENATE FINANCE COMMITTEE, SAID
ON THE FLOOR OF THE SENATE THAT THIS JUDICIAL INTERPRETATION OF THE
STATUTE "CAME ALMOST LIKE A BOMBSHELL, BECAUSE NOBODY EVER ANTICIPATED
SUCH A DECISION."  74 CONG. REC. 7078.  BOTH HOUSES OF CONGRESS
UNANIMOUSLY PASSED AND THE PRESIDENT SIGNED THE REQUESTED RESOLUTION
THAT SAME DAY.  FN7 

FEBRUARY 28, 1938, THIS COURT HELD THAT NEITHER PASSAGE OF THE
RESOLUTION NOR ITS LATER INCLUSION IN THE 1932 REVENUE ACT WAS INTENDED
TO APPLY TO TRUSTS CREATED BEFORE ITS PASSAGE.  HASSETT V. WELCH,
HELVERING V. MARSHALL, 303 U.S. 303.  ACCORDINGLY, IF THE CORPUS OF THE
CHURCH TRUST EXECUTED IN 1924 IS TO BE INCLUDED IN THE SETTLOR'S ESTATE
WITHOUT THIS COURT'S INVOLVEMENT IN THE INTRICACIES OF STATE PROPERTY
LAW, IT MUST BE DONE BY VIRTUE OF THE POSSESSION AND ENJOYMENT SECTION
AS IT STOOD WITHOUT THE LANGUAGE ADDED BY THE JOINT RESOLUTION. 

CRUCIAL TO THE COURT'S HOLDING IN MAY V. HEINER WAS ITS FINDING THAT
NO INTEREST IN THE CORPUS PASSED AT THE SETTLOR'S DEATH BECAUSE LEGAL
TITLE HAD PASSED FROM THE SETTLOR IRREVOCABLY WHEN THE TRUST WAS
EXECUTED; FOR THIS REASON THE GRANTOR'S RESERVATION OF THE TRUST INCOME
FOR HIS LIFE FN8  - ONE OF THE CHIEF BUNDLE-OF-OWNERSHIP INTEREST - WAS
HELD NOT TO BRING THE TRANSFER WITHIN THE CATEGORY OF TRANSFERS
"INTENDED TO TAKE EFFECT IN  ...  ENJOYMENT AT  ...  HIS DEATH."  THIS
COURT HAD NEVER BEFORE SO LIMITED THE POSSESSION OR ENJOYMENT SECTION. 
FN9  THUS WAS FORMAL LEGAL TITLE RATHER THAN THE SUBSTANCE OF A
TRANSACTION MADE THE SOLE TEST OF TAXABILITY UNDER SEC. 811(C).  FOR
FROM THE VIEWPOINT OF THE GRANTOR THE SIGNIFICANT EFFECT OF THIS
TRANSACTION WAS HIS CONTINUED ENJOYMENT AND RETENTION OF THE INCOME
UNTIL HIS DEATH; THE IMPORTANT CONSEQUENCE TO THE REMAINDERMEN WAS THE
POSTPONEMENT OF THEIR RIGHT TO THIS ENJOYMENT OF THE INCOME UNTIL THE
GRANTOR'S DEATH.    THE EFFECT OF THE COURT'S INTERPRETATION OF THIS
ESTATE TAX SECTION WAS TO PERMIT A PERSON TO RELIEVE HIS ESTATE FROM
THE TAX BY CONVEYING ITS LEGAL TITLE TO TRUSTEES WHOM HE SELECTED, WITH
AN AGREEMENT THAT THEY MANAGE THE ESTATE DURING HIS LIFE, PAY TO HIM
ALL INCOME AND PROFITS FROM THE PROPERTY DURING HIS LIFE, AND DELIVER
IT TO HIS CHOSEN BENEFICIARIES AT DEATH.  PREPARATION OF PAPERS TO
DEFEAT AN ESTATE TAX THUS BECAME AN EASY CHORE FOR ONE SKILLED IN THE
"VARIOUS NICETIES OF THE ART OF CONVEYANCING."  KLEIN V. UNITED STATES,
283 U.S. 231, 234.  AND BY THIS SIMPLE METHOD ONE COULD, DESPITE THE
"POSSESSION OR ENJOYMENT" CLAUSE, RETAIN AND ENJOY ALL THE FRUITS OF
HIS PROPERTY DURING LIFE AND DIRECT ITS DISTRIBUTION AT DEATH, FREE
FROM TAXES THAT OTHERS LESS SKILLED IN TAX TECHNIQUE WOULD HAVE TO
PAY.  REGARDLESS OF THESE FACTS MAY V. HEINER HELD THAT SUCH AN
INSTRUMENT PRESERVING THE BENEFICIAL USE OF ONE'S PROPERTY DURING LIFE
AND PROVIDING FOR ITS DISTRIBUTION AND DELIVERY AT DEATH WAS "NOT
TESTAMENTARY IN CHARACTER."  MAY V. HEINER, SUPRA AT 243.  CF. KEENEY
V. NEW YORK, SUPRA AT 535, 536. 

ONE YEAR AFTER MAY V. HEINER, THIS COURT DECIDED KLEIN V. UNITED
STATES, SUPRA.  THERE THE GRANTOR MADE A DEED CONVEYING PROPERTY TO HIS
WIFE FOR HER LIFE WITH PROVISIONS THAT IF SHE SURVIVED HIM SHE SHOULD
"BY VIRTUE OF THIS CONVEYANCE TAKE, HAVE, AND HOLD THE SAID LANDS IN
FEE SIMPLE," BUT THE FEE WAS TO "REMAIN VESTED IN" HIM SHOULD HIS WIFE
DIE FIRST.  THIS COURT POINTED OUT THAT IN GENERAL AND UNDER THE LAW OF
ILLINOIS WHERE THE DEED WAS MADE, VESTING OF TITLE IN THE GRANTEE
"DEPENDED UPON THE CONDITION PRECEDENT THAT THE DEATH OF THE GRANTOR
HAPPEN BEFORE THAT OF THE GRANTEE."  THUS, SINCE IT WAS FOUND THAT
UNDER ILLINOIS LAW LEGAL TITLE TO THE LAND HAD BEEN RETAINED BY THE
HUSBAND, IT WAS HELD THAT THE VALUE OF THE LAND SHOULD BE INCLUDED IN
HIS GROSS ESTATE UNDER THE "POSSESSION OR ENJOYMENT" SECTION.  THE
COURT DID NOT CITE MAY V. HEINER. 

IN 1935, THIS COURT DECIDED HELVERING V. ST. LOUIS TRUST CO., 296
U.S. 39, AND BECKER V. ST. LOUIS TRUST CO., 296 U.S. 48.  IN EACH OF
THESE CASES THE COURT AGAIN, AS IN MAY V. HEINER, DELVED INTO THE
QUESTION OF LEGAL TITLE UNDER RATHER SUBTLE PROPERTY LAW CONCEPTS AND
DECIDED THAT THE LEGAL TITLE OF THE TRUST PROPERTIES THERE, UNLIKE THE
SITUATION IN THE KLEIN TRANSFER, HAD PASSED IRREVOCABLY FROM THE
GRANTOR.  THIS PASSAGE OF BARE LEGAL TITLE WAS HELD TO BE ENOUGH TO
RENDER THE POSSESSION OR ENJOYMENT SECTION INAPPLICABLE.  THESE CASES
WERE EXPRESSLY OVERRULED BY HELVERING V. HALLOCK. 

HELVERING V. HALLOCK WAS DECIDED IN 1940.  THREE SEPARATE TRUSTS WERE
CONSIDERED IN THE HALLOCK CASE.  THESE THREE TRUSTS AS THOSE CONSIDERED
IN THE ST. LOUIS TRUST AND BECKER CASES, HAD BEEN EXECUTED WITH
PROVISIONS FOR REVERSION OF THE TRUST PROPERTIES TO THE GRANTORS SHOULD
THE GRANTORS OUTLIVE THE BENEFICIARIES.  THE TRUSTS HAD BEEN EXECUTED
IN 1917, 1919, AND 1925.  IN THE HALLOCK CASE THIS COURT WAS AGAIN
ASKED TO LIMIT THE EFFECT OF SEC. 811(C) BY EMPHASIS UPON THE FORMAL
PASSAGE OF LEGAL TITLE.  BY SUCH CONCENTRATION ON ELUSIVE LEGAL TITLE,
THE COURT WAS INVITED TO LOSE SIGHT OF THE PLAIN FACT THAT COMPLETE
ENJOYMENT HAD BEEN POSTPONED.  WE DECLINED TO LIMIT THE EFFECTIVENESS
OF THE POSSESSION OR ENJOYMENT PROVISION OF SEC. 811(C) BY ATTEMPTING
TO DEFINE THE NATURE OF THE INTEREST WHICH THE DECEDENT RETAINED AFTER
HIS INTER VIVOS TRANSFER.  WE CALLED ATTENTION TO THE SNARES WHICH
INEVITABLY AWAIT AN ATTEMPT TO RESTRICT ESTATE TAX LIABILITY ON THE
"NICETIES OF THE ART OF CONVEYANCING" AT P. 117.  WE DECLARED THAT THE
STATUTE NOW UNDER CONSIDERATION "TAXES NOT MERELY THOSE INTERESTS WHICH
ARE DEEMED TO PASS AT DEATH ACCORDING TO REFINED TECHNICALITIES OF THE
LAW OF PROPERTY.  IT ALSO TAXES INTER VIVOS TRANSFERS THAT ARE TOO MUCH
AKIN TO TESTAMENTARY DISPOSITIONS NOT TO BE SUBJECTED TO THE SAME
EXCISE," P. 112, AND INTER VIVOS GIFTS "RESORTED TO, AS A SUBSTITUTE
FOR A WILL, IN MAKING DISPOSITIONS OF PROPERTY OPERATIVE AT DEATH," P.
114. 

AS POINTED OUT BY THE DISSENT IN HALLOCK, WE THERE DIRECTLY AND
UNEQUIVOCALLY REJECTED THE ONLY SUPPORT THAT COULD POSSIBLY SUFFICE FOR
THE HOLDINGS IN MAY V. HEINER.  THAT SUPPORT WAS THE COURT'S CONCLUSION
IN MAY V. HEINER THAT RETENTION OF POSSESSION OR ENJOYMENT OF HIS
PROPERTY WAS NOT ENOUGH TO REQUIRE INCLUSION OF ITS VALUE IN THE GROSS
ESTATE IF A TRUST GRANTOR HAD SUCCEEDED IN PASSING BARE LEGAL TITLE OUT
OF HIMSELF BEFORE DEATH.  IN HALLOCK WE EMPHASIZED OUR REMOVAL OF THAT
SUPPORT BY DECLARING THAT SEC. 811(C) "DEALS WITH PROPERTY NOT
TECHNICALLY PASSING AT DEATH BUT WITH INTERESTS THERETOFORE CREATED. 
THE TAXABLE EVENT IS A TRANSFER INTER VIVOS.  BUT THE MEASURE OF THE
TAX IS THE VALUE OF THE TRANSFERRED PROPERTY AT THE TIME WHEN DEATH
BRINGS IT INTO ENJOYMENT," PP. 110-111. 

MOREOVER, THE HALLOCK CASE, P. 114, STANDS PLAINLY FOR THE PRINCIPLE
THAT "IN DETERMINING WHETHER A TAXABLE TRANSFER BECOMES COMPLETE ONLY
AT DEATH WE LOOK TO SUBSTANCE, NOT TO FORM  ... HOWEVER WE LABEL THE
DEVICE (IF) IT IS BUT A MEANS BY WHICH THE GIFT IS RENDERED INCOMPLETE
UNTIL THE DONOR'S DEATH" THE "POSSESSION OR ENJOYMENT" PROVISION
APPLIES. 

HOW IS IT POSSIBLE TO CALL THIS TRUST TRANSFER "COMPLETE" EXCEPT BY
INVOKING A FICTION?  CHURCH WAS SOLE OWNER OF THE STOCKS BEFORE THE
TRANSFER.  PROBABLY THEIR GREATEST PROPERTY VALUE TO CHURCH WAS HIS
CONTINUING RIGHT TO GET THEIR INCOME.  AFTER LEGAL TITLE TO THE STOCKS
WAS TRANSFERRED, SOMEBODY STILL OWNED A PROPERTY RIGHT IN THE STOCK
INCOME.  THAT PROPERTY RIGHT DID NOT PASS TO THE TRUST BENEFICIARIES
WHEN THE TRUST WAS EXECUTED; IT REMAINED IN CHURCH UNTIL HE DIED.  HE
MADE NO "COMPLETE" GIFT EFFECTIVE BEFORE THAT DATE, UNLESS WE VIEW THE
TRUST TRANSFER AS A "COMPLETE" GIFT TO THE TRUSTEES.  BUT CHURCH GAVE
THE TRUSTEES NOTHING, EITHER PARTIALLY OR COMPLETELY.  HE TRANSFERRED
NO RIGHT TO THEM TO GET AND SPEND THE STOCK INCOME.  AND UNDER THE
TEACHING OF THE HALLOCK CASE, QUITE IN CONTRAST TO THAT OF MAY V.
HEINER, PASSAGE OF THE MERE TECHNICAL LEGAL TITLE TO A TRUSTEE IS NOT
NECESSARILY CRUCIAL IN DETERMINING WHETHER AND WHEN A GIFT BECOMES
"COMPLETE" FOR ESTATE TAX PURPOSES.  LOOKING TO SUBSTANCE AND NOT
MERELY TO FORM, AS WE MUST UNLESS WE DEPART FROM THE TEACHING OF
HALLOCK, THE INESCAPABLE FACT IS THAT CHURCH RETAINED FOR HIMSELF UNTIL
DEATH A MOST VALUABLE PROPERTY RIGHT IN THESE STOCKS - THE RIGHT TO GET
AND TO SPEND THEIR INCOME.  THUS CHURCH DID FAR MORE THAN ATTACH A
"STRING" TO A REMOTELY POSSIBLE REVERSIONARY INTEREST IN THE PROPERTY,
A SUFFICIENT RESERVATION UNDER THE HALLOCK RULE TO MAKE THE VALUE OF
THE CORPUS SUBJECT TO AN ESTATE TAX.  CHURCH DID NOT EVEN RISK
ATTACHING AN UNBREAKABLE CABLE TO THE MOST VALUABLE PROPERTY ATTRIBUTE
OF THE STOCKS, THEIR INCOME.  HE SIMPLY RETAINED THIS VALUABLE
PROPERTY, THE RIGHT TO THE INCOME, FOR HIMSELF UNTIL DEATH, WHEN FOR
THE FIRST TIME THE STOCK WITH ALL ITS PROPERTY ATTRIBUTES "PASSED" FROM
CHURCH TO THE TRUST BENEFICIARIES.  EVEN IF THE INTEREST OF CHURCH WAS
MERELY "OBLITERATED," IN MAY V. HEINER LANGUAGE, IT IS BEYOND ALL DOUBT
THAT SIMULTANEOUSLY WITH HIS DEATH, CHURCH NO LONGER OWNED THE RIGHT TO
THE INCOME; THE BENEFICIARIES DID.  IT HAD THEN "PASSED."  IT NEVER HAD
BEFORE.  FOR THE FIRST TIME, THE GIFT HAD BECOME "COMPLETE." 

THUS, WHAT WE SAID IN HALLOCK WAS NOT ONLY A REPUDIATION OF THE
REASONING WHICH WAS ADVANCED TO SUPPORT THE TWO CASES (ST. LOUIS TRUST
AND BECKER) THAT HALLOCK OVERRULED, BUT ALSO A COMPLETE REJECTION OF
THE RATIONALE OF MAY V. HEINER ON WHICH THE TWO FORMER CASES HAD
RELIED.  HALLOCK THEREBY RETURNED TO THE INTERPRETATION OF THE
"POSSESSION OR ENJOYMENT" SECTION UNDER WHICH AN ESTATE TAX CANNOT BE
AVOIDED BY ANY TRUST TRANSFER EXCEPT BY A BONA FIDE TRANSFER IN WHICH
THE SETTLOR, ABSOLUTELY, UNEQUIVOCALLY, IRREVOCABLY, AND WITHOUT
POSSIBLE RESERVATIONS, PARTS WITH ALL OF HIS TITLE AND ALL OF HIS
POSSESSION AND ALL OF HIS ENJOYMENT OF THE TRANSFERRED PROPERTY.  AFTER
SUCH A TRANSFER HAS BEEN MADE, THE SETTLOR MUST BE LEFT WITH NO PRESENT
LEGAL TITLE IN THE PROPERTY, NO POSSIBLE REVERSIONARY INTEREST IN THAT
TITLE, AND NO RIGHT TO POSSESS OR TO ENJOY THE PROPERTY THEN OR
THEREAFTER.  IN OTHER WORDS SUCH A TRANSFER MUST BE IMMEDIATE AND OUT
AND OUT, AND MUST BE UNAFFECTED BY WHETHER THE GRANTOR LIVES OR DIES. 
SEE SHUKERT V. ALLEN, 273 U.S. 545, 547; SMITH V. SHAUGHNESSY, 318 U.S.
176.  WE DECLARED THIS TO BE THE EFFECT OF THE HALLOCK CASE IN
GOLDSTONE V. UNITED STATES, 325 U.S. 687, 690, 691.  THERE WE SAID WITH
REFERENCE TO SEC. 811(C) IN CONNECTION WITH OUR HALLOCK RULING:  "...
IT THUS SWEEPS INTO THE GROSS ESTATE ALL PROPERTY THE ULTIMATE
POSSESSION OR ENJOYMENT OF WHICH IS HELD IN SUSPENSE UNTIL THE MOMENT
OF THE DECEDENT'S DEATH OR THEREAFTER.  ...  TESTAMENTARY DISPOSITIONS
OF AN INTER VIVOS NATURE CANNOT ESCAPE THE FORCE OF THIS SECTION BY
HIDING BEHIND LEGAL NICETIES CONTAINED IN DEVICES AND FORMS CREATED BY
CONVEYANCERS."  AND SEE FIDELITY-PHILADELPHIA TRUST CO. V. ROTHENSIES,
SUPRA, AND COMMISSIONER V. ESTATE OF FIELD, 324 U.S. 113. 

IT IS STRONGLY URGED THAT WE CONTINUE TO REGARD MAY V. HEINER AS
CONTROLLING AND LEAVE ITS FINAL REPUDIATION TO CONGRESS.  LITTLE EFFORT
IS MADE TO DEFEND THE MAY V. HEINER INTERPRETATION OF "POSSESSION OR
ENJOYMENT" ON THE GROUND THAT IT TRULY REFLECTS THE CONGRESSIONAL
PURPOSE, NOR DO WE THINK IT POSSIBLE TO ATTRIBUTE SUCH A PURPOSE TO
CONGRESS.  THERE IS NO PERSUASIVE ARGUMENT, IF ANY AT ALL, THAT TRUSTS
RESERVING LIFE ESTATES WITH REMAINDERS OVER AT GRANTORS' DEATHS ARE NOT
SATISFACTORY AND EFFECTIVE SUBSTITUTES FOR WILLS.  IN FACT, THE PURPOSE
OF THIS SETTLOR AS EXPRESSED IN HIS TRUST PAPERS WAS TO MAKE "PROVISION
FOR ANY LAWFUL ISSUE" HE MIGHT "LEAVE AT THE TIME OF HIS DEATH AS WELL
AS PROVIDE AN INCOME FOR HIMSELF FOR LIFE."  THIS PAPER, LABELED A
TRUST, BUT PROVIDING FOR ALL THE SUBSTANTIAL PURPOSES OF A WILL, WAS
INTENDED TO AND DID POSTPONE UNTIL THE SETTLOR'S DEATH THE RIGHT OF HIS
RELATIVES TO POSSESS AND ENJOY HIS PROPERTY.  THERE MAY BE TRUST
INSTRUMENTS THAT FALL MORE CLEARLY WITHIN THE CLASS INTENDED TO BE
TREATED AS SUBSTITUTES FOR WILLS BY THE "POSSESSION OR ENJOYMENT"
CLAUSE, BUT WE DOUBT IT. 

THE ARGUMENT FOR CONTINUING THE ERROR OF MAY V. HEINER IS NOT ON THE
MERITS BUT IS ADVANCED IN THE ALLEGED INTEREST OF TAX STABILITY AND
CERTAINTY, STARE DECISIS AND A DUE DEFERENCE TO THE JUST EXPECTATIONS
OF THOSE WHO HAVE RELIED ON THE MAY V. HEINER DOCTRINE.  SPECIAL STRESS
IS LAID ON TREASURY REGULATIONS WHICH SINCE THE HASSETT V. WELCH
HOLDING IN 1938 HAVE ACCEPTED THE MAY V. HEINER DOCTRINE AND HAVE NOT
PROVIDED THAT THE VALUE OF A TRUST CORPUS MUST BE INCLUDED IN THE
DECEDENT'S GROSS ESTATE WHERE A GRANTOR HAD RESERVED THE TRUST INCOME. 
IT IS EVEN ARGUED THAT CONGRESS IN SOME WAY RATIFIED THE MAY V. HEINER
DOCTRINE WHEN IT PASSED THE JOINT RESOLUTION AND THAT IF NOT, THE
DECISION IN THE HASSETT AND MARSHALL CASES SET AT REST ALL QUESTIONS AS
TO THE SOUNDNESS OF THE MAY V. HEINER INTERPRETATION.  WE FIND NO MERIT
IN THESE CONTENTIONS. 

WHAT WAS SAID IN THE HALLOCK OPINION ON THE QUESTION OF STARE DECISIS
WOULD APPEAR TO BE A SUFFICIENT ANSWER TO THAT CONTENTION HERE.  THE
HALLOCK OPINION ALSO ANSWERS THE ARGUMENT AS TO RECENT TREASURY
REGULATIONS, ALL OF WHICH WERE MADE BY THE TREASURY UNDER COMPULSION OF
THIS COURT'S CASES.  FURTHERMORE, THE HISTORY OF THE STRUGGLE OF THE
TREASURY TO SUBJECT SUCH TRANSFERS AS THIS TO THE ESTATE TAX LAW, A
HISTORY SHOWN IN PART IN THE HASSETT V. WELCH OPINION, HAS SERVED TO
SPOTLIGHT THE ABIDING CONVICTION OF THE TREASURY THAT THE MAY V. HEINER
STATUTORY INTERPRETATION SHOULD BE REJECTED.  IN VIEW OF THE STRUGGLE
OF THE TREASURY IN THIS TAX FIELD, THE VARIANT JUDICIAL AND TAX COURT
OPINIONS, OUR OPINION IN THE HALLOCK CASE AND OTHERS WHICH FOLLOWED, IT
IS NOT EASY TO BELIEVE THAT TAXPAYERS WHO EXECUTED TRUSTS PRIOR TO THE
1931 JOINT RESOLUTION FELT SECURE IN A BELIEF THAT MAY V. HEINER GAVE
THEM A VESTED INTEREST IN PROTECTION FROM ESTATE TAXES UNDER TRUST
TRANSFERS SUCH AS THIS ONE.  AND SO FAR AS THIS TRUST IS CONCERNED,
TREASURY REGULATIONS REQUIRED THE VALUE OF ITS CORPUS TO BE INCLUDED IN
THE GROSS ESTATE WHEN IT WAS MADE IN 1924, AND MOST OF THE PERIOD FROM
THEN UP TO THE SETTLOR'S DEATH IN 1939. 

MOREOVER, THE MAY V. HEINER DOCTRINE HAS BEEN REPUDIATED BY THE
CONGRESS AND REPEATEDLY CHALLENGED BY THE TREASURY.  IT CERTAINLY IS
NOT AN OVERSTATEMENT TO SAY THAT THIS COURT'S HALLOCK OPINION AND
HOLDING TREATED MAY V. HEINER WITH SCANT RESPECT.  WE SAID CONGRESS HAD
"DISPLACED" THE MAY V. HEINER CONSTRUCTION OF SEC. 811(C); IN
OVERRULING THE ST. LOUIS TRUST CASES WE POINTED OUT THAT THOSE CASES
HAD RELIED IN PART ON THE "CONGRESSIONALLY DISCARDED MAY V. HEINER
DOCTRINE"; WE THOUGHT CONGRESS "HAD IN PRINCIPLE ALREADY REJECTED THE
GENERAL ATTITUDE UNDERLYING" THE MAY V. HEINER AND ST. LOUIS TRUST
CASES; AND FINALLY OUR HALLOCK OPINION DEMOLISHED THE ONLY REASONING
EVER ADVANCED TO SUPPORT THE MAY V. HEINER HOLDING.  AND IN THE HALLOCK
CASE, TRUSTS CREATED IN 1917, 1919, AND 1925 WERE HELD SUBJECT TO THE
ESTATE TAX UNDER THE PROVISIONS INCLUDED IN SEC. 811(C).  WHAT WE SAID
AND DID ABOUT MAY V. HEINER IN THE HALLOCK CASE TOOK PLACE IN 1940, TWO
YEARS AFTER HASSETT V. WELCH HAD HELD THAT THE 1931 AND 1932 AMENDMENTS
COULD NOT BE APPLIED TO TRUSTS CREATED BEFORE 1931.  CERTAINLY, MAY V.
HEINER CANNOT BE GRANTED THE SANCTUARY OF STARE DECISIS ON THE GROUND
THAT IT HAS HAD A LONG AND TRANQUIL HISTORY FREE FROM TROUBLES AND
CHALLENGES.    NOR DOES THE JOINT RESOLUTION OR THE OPINION IN THE
HASSETT V. WELCH AND HELVERING V. MARSHALL CASES, DECIDED TOGETHER,
SUPPORT AN ARGUMENT THAT THE MAY V. HEINER DOCTRINE BE LEFT
UNDISTURBED.  IT WOULD BE IMPOSSIBLE TO SAY THAT CONGRESS IN 1931
INTENDED TO ACCEPT AND RATIFY DECISIONS THAT HIT THE CONGRESS LIKE A
"BOMBSHELL."  FN10  AND IN HASSETT V. WELCH THE GOVERNMENT DID NOT ASK
THIS COURT TO REEXAMINE OR OVERRULE MAY V. HEINER OR THE THREE PER
CURIAM CASES THAT RELIED ON MAY V. HEINER.  IN FACT, THE GOVERNMENT
BRIEF ARGUED THAT MAY V. HEINER ON ITS FACTS WAS DISTINGUISHABLE FROM
HASSETT V. WELCH.  THE GOVERNMENT BRIEF ALSO POINTEDLY INSISTED THAT
ITS POSITION IN HASSETT V. WELCH DID "NOT REQUIRE A REEXAMINATION OF
THE THREE PER CURIAM DECISIONS OF MARCH 2, 1931."  IT WAS THE
GOVERNMENT'S SOLE CONTENTION IN THE HASSETT AND MARSHALL CASES THAT THE
1932 REENACTMENT OF THE JOINT RESOLUTION WAS NOT LIMITED IN APPLICATION
TO TRUSTS THEREAFTER CREATED, BUT WAS INTENDED TO MAKE THE NEW 1932
AMENDMENT APPLICABLE TO PAST TRUST AGREEMENTS.  THAT CONTENTION WAS
REJECTED.  THE HOLDING WAS LIMITED TO THAT SINGLE QUESTION. 

THE PLAIN IMPLICATIONS OF THE HALLOCK OPINION RECOGNIZE THAT THE
HASSETT AND MARSHALL CASES DID NOT REAFFIRM THE MAY V. HEINER
DOCTRINE.  IN THE MARSHALL CASE THE TRUST, CREATED IN 1920, CONTAINED A
PROVISION THAT SHOULD THE SETTLOR OUTLIVE THE TRUST BENEFICIARY, THE
TRUST CORPUS WOULD REVERT TO THE SETTLOR.  THAT IS THE VERY TYPE OF
PROVISION WHICH WE HELD IN HALLOCK WOULD REQUIRE INCLUSION OF ITS VALUE
IN THE SETTLOR'S ESTATE.  SINCE THE HALLOCK CASE DID NOT OVERRULE THE
MARSHALL CASE INVOLVING A TRUST CREATED IN 1920, IT MUST HAVE ACCEPTED
THE MARSHALL AND HASSETT CASES AS DECIDING NO MORE THAN THAT THE VALUE
OF THE TRUST PROPERTIES THERE COULD NOT BE INCLUDED IN THE DECEDENT'S
GROSS ESTATE WHERE THE GOVERNMENT'S SOLE RELIANCE WAS ON A RETROACTIVE
APPLICATION OF THE 1931 AND 1932 AMENDMENTS TO THE ESTATE TAX LAW. 

THAT THE HALLOCK OPINION DID NOT TREAT THE HASSETT AND MARSHALL CASES
AS HAVING REAFFIRMED THIS COURT'S INTERPRETATION OF THE PRE-1931
POSSESSION OR ENJOYMENT CLAUSE IS FURTHER EMPHASIZED BY THE EFFECT OF
THE HALLOCK CASE ON THE TYPE OF TRUST IN MCCORMICK V. BURNET, 283 U.S.
784, A TRUST CREATED BEFORE 1931.  THE UNITED STATES COURT OF APPEALS
IN THAT CASE HAD HELD THAT THE TRUST PROPERTY SHOULD BE INCLUDED IN THE
DECEDENT'S ESTATE CHIEFLY BECAUSE OF THE TRUST PROVISION THAT THE
CORPUS SHOULD REVERT TO THE SETTLOR IN THE EVENT THAT SHE OUTLIVED HER
THREE CHILDREN.  43 F.2D 277.  THIS COURT IN ITS PER CURIAM OPINION
REVERSED THE COURT OF APPEALS AND HELD THAT THE MCCORMICK CORPUS NEED
NOT BE INCLUDED IN THE DECEDENT'S ESTATE.  OUR HALLOCK CASE HELD
DIRECTLY THE CONTRARY, FOR SINCE HALLOCK, THE MCCORMICK CORPUS WOULD
HAVE TO BE TAXED UNDER THE PRE-1931 LANGUAGE OF SEC. 811(C).  IN SO
INTERPRETING THE PRE-1931 LANGUAGE IN THE HALLOCK CASE, WE NECESSARILY
REJECTED THE CONTENTION MADE THERE THAT THE CONGRESS BY PASSAGE OF THE
RESOLUTION AND THIS COURT BY THE HASSETT AND MARSHALL OPINIONS HAD
ACCEPTED AS CORRECT THE MAY V. HEINER RESTRICTIVE INTERPRETATION OF
SEC. 811(C).  IT IS PLAIN THAT THIS COURT IN THE HALLOCK CASE
CONSIDERED THAT THE HASSETT AND MARSHALL CASES HELD NO MORE THAN THAT
THE 1931 AND 1932 AMENDMENTS WERE PROSPECTIVE, AND THAT NEITHER THE
CONGRESSIONAL RESOLUTION NOR THE HASSETT AND MARSHALL CASES WERE
DESIGNED TO GIVE NEW LIFE AND VIGOR TO THE MAY V. HEINER DOCTRINE. 
FN11 

THE RELIANCE OF RESPONDENT HERE ON THE HASSETT AND MARSHALL CASES IS
MISPLACED.  WE HOLD THAT THIS TRUST AGREEMENT, BECAUSE IT RESERVED A
LIFE INCOME IN THE TRUST PROPERTY, WAS INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT THE SETTLOR'S DEATH AND THAT THE
COMMISSIONER THEREFORE PROPERLY INCLUDED THE VALUE OF ITS CORPUS IN THE
ESTATE.  REVERSED. 

FN1  THE HALLOCK CASE CONSIDERED THE "POSSESSION OR ENJOYMENT"
LANGUAGE OF SEC. 811(C) WHICH APPEARED IN SEC. 302(C) OF THE 1926
REVENUE ACT, 44 STAT. 9, 70, AS AMENDED BY SEC. 803(A) OF THE REVENUE
ACT OF 1932, 47 STAT. 169, 279, 26 U.S.C. SEC. 811(C). 

FN2  ESTATE OF CASS, 3 T.C. 562; COMMISSIONER V. KELLOGG, 119 F.2D
54, AFFIRMING 40 B.T.A. 916; ESTATE OF DOWNE, 2 T.C. 967; ESTATE OF
HOUGHTON, 2 T.C. 871; ESTATE OF GOODYEAR, 2 T.C. 885; ESTATE OF DELANY,
1 T.C. 781. 

FN3  COMMISSIONER V. BAYNE'S ESTATE, 155 F.2D 475; COMMISSIONER V.
BANK OF CALIFORNIA, 155 F.2D 1; THOMAS V. GRAHAM, 158 F.2D 561; BEACH
V. BUSEY, 156 F.2D 496. 

FN4  CF. ESTATE OF HUGHES, 44 B.T.A. 1196, WITH ESTATE OF BRADLEY, 1
T.C. 518, AFFIRMED SUB NOM. HELVERING V. WASHINGTON TRUST CO., 140 F.2D
87.  SEE NEW YORK TRUST CO. V. UNITED STATES, 100 CT. CL. 311, 51
F.SUPP.  733.  CF. MONTGOMERY, FEDERAL TAXES - ESTATES, TRUSTS AND
GIFTS, 461-462, 480-482(1946) WITH PAUL, FEDERAL ESTATE AND GIFT
TAXATION, 1946 SUPP. SECS. 7.15, 7.23.  SEE ALSO NOTE, INTER VIVOS
TRANSFERS AND THE FEDERAL ESTATE TAX, 49 YALE L.J. 1118(1940);
EISENSTEIN, ESTATE TAXES AND THE HIGHER LEARNING OF THE SUPREME COURT,
3 TAX L. REV. 395(1948). 

FN5  NOTE, ORIGIN OF THE PHRASE, "INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT OR AFTER ...  DEATH" (SEC. 811(C), INTERNAL
REVENUE CODE), 56 YALE L.J. 176(1946). 

FN6  SEE CASES COLLECTED IN 49 A.L.R. 878-892; 67 A.L.R. 1250-1254;
100 A.L.R. 1246-1254.  SEE ALSO ROTTSCHAEFER, TAXATION OF TRANSFERS
TAKING EFFECT IN POSSESSION AT GRANTOR'S DEATH, 26 IOWA L. REV.
514(1941); OLIVER, PROPERTY RATIONALISM AND TAX PRAGMATISM, 20 TEX. L.
REV. 675, 704-709(1942). 

FN7  "(C)  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE
DECEDENT HAS AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, IN
CONTEMPLATION OF OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT
AT OR AFTER HIS DEATH, INCLUDING A TRANSFER UNDER WHICH THE TRANSFEROR
HAS RETAINED FOR HIS LIFE OR ANY PERIOD NOT ENDING BEFORE HIS DEATH (1)
THE POSSESSION OR ENJOYMENT OF, OR THE INCOME FROM, THE PROPERTY OR (2)
THE RIGHT TO DESIGNATE THE PERSONS WHO SHALL POSSESS OR ENJOY THE
PROPERTY OR THE INCOME THEREFROM ...  ."  THE ITALICS ARE ADDED TO
INDICATE THE ADDITIONS MADE BY THE AMENDMENTS TO SEC. 302(C) OF THE
REVENUE ACT OF 1926.  JOINT RESOLUTION OF MARCH 3, 1931, 46 STAT. 1516
1517. 

FN8  THE MAY V. HEINER TRUST PROVIDED FOR THE INCOME TO GO TO BARNEY
MAY DURING HIS LIFETIME, AFTER HIS DEATH TO HIS WIFE, PAULINE MAY, THE
GRANTOR, AND UPON HER DEATH THE CORPUS WAS TO BE DISTRIBUTED TO THE
GRANTOR'S FOUR CHILDREN.  THE COURT SAID THAT THE RECORD FAILED CLEARLY
TO DISCLOSE WHETHER MRS. MAY SURVIVED HER HUSBAND, BUT HELD THIS WAS OF
NO SPECIAL IMPORTANCE. 

FN9 THE COURT ALSO QUOTED FROM AND RELIED HEAVILY ON REINECKE V.
NORTHERN TRUST CO., 278 U.S. 339, 345.  THIS COURT THERE HELD THAT THE
CORPUS OF TWO TRUSTS THAT RESERVED A LIFE INCOME TO THE GRANTOR PLUS A
POWER TO REVOKE SHOULD HAVE BEEN INCLUDED IN THE DECEDENT'S ESTATE. 
THE CORPUS OF FIVE OTHER TRUSTS WERE HELD NOT INCLUDABLE.  THESE FIVE
TRUSTS DID NOT RESERVE A POWER IN THE GRANTOR ALONE TO REVOKE, NOR DID
THEY RESERVE A LIFE ESTATE TO THE GRANTOR, BUT THEY PROVIDED FOR
ACCUMULATION OF THAT INCOME DURING THE SETTLOR'S LIFE, AND AT HIS DEATH
IT WAS TO GO TO THE BENEFICIARIES, SUBJECT TO PRIOR USE BY THE
BENEFICIARIES AS DIRECTED BY THE SETTLOR.  THUS, THIS CASE DID NOT
DIRECTLY SUPPORT THE MAY V. HEINER HOLDING.  NOR IS MAY V. HEINER
SUPPORTED BY SHUKERT V. ALLEN, 273 U.S. 545, AS SHOWN BY REFERENCE TO
SHUKERT V. ALLEN IN THE REINECKE OPINION AT P. 347. 

FN10  A MAY 22, 1931, BULLETIN OF THE TREASURY DEPARTMENT INDICATES A
STRONG REASON FOR THE TREASURY DEPARTMENT'S CONSTRUCTION OF THE
RESOLUTION AS INAPPLICABLE TO PRE-1931 TRUST TRANSFERS.  T.D. 4314, X
1, CUM. BULL.  450-451(1931).  THAT REASON WAS OBVIOUSLY A FEAR THAT
THIS COURT MIGHT HOLD THAT THE TAX COULD NOT CONSTITUTIONALLY BE
APPLIED TO TRUSTS PREVIOUSLY CREATED UNDER THE NICHOLS V. COOLIDGE, 274
U.S. 531, LINE OF CASES.  THIS SAME APPREHENSION MAY WELL HAVE BEEN THE
UNDERLYING REASON FOR A STATEMENT, RELIED ON BY THE DISSENT, MADE ON
THE FLOOR OF THE HOUSE THAT THE RESOLUTION WAS NOT MADE "RETROACTIVE
FOR THE REASON THAT WE WERE AFRAID THAT THE SENATE WOULD NOT AGREE TO
IT."  74 CONG. REC. 7199(1931).  RECENT CASES HAVE INDICATED THAT THE
FEAR OF SUCH A CONSTITUTIONAL INTERPRETATION IS NOT A VALID ONE. 
CENTRAL HANOVER BANK V. KELLY, 319 U.S. 94, 97-98; FERNANDEZ V. WIENER,
326 U.S. 340, 355. 

FN11  A DISSENT FILED IN THIS CASE HAS AN APPENDIX CITING "DECISIONS
DURING THE PAST DECADE IN WHICH LEGISLATIVE HISTORY WAS DECISIVE OF
CONSTRUCTION OF A PARTICULAR STATUTORY PROVISION," POST, P. 687.  MANY
OTHER DECISIONS OF LESS RECENT DATE COULD ALSO BE CITED TO ESTABLISH
THIS WELL-KNOWN FACT WHICH NOBODY DISPUTES.  BUT WE THINK HERE, IN THE
LANGUAGE OF OUR OPINION IN THE HALLOCK CASE, WHICH OPINION WAS WRITTEN
BY THE AUTHOR OF TODAY'S DISSENT, THAT THE ACTIONS OF CONGRESS RELIED
ON IN THE DISSENT HAVE NOT "UNDER ANY RATIONAL CANONS OF LEGISLATIVE
SIGNIFICANCE  ... IMPLIEDLY ENACTED INTO LAW A PARTICULAR DECISION
WHICH, IN THE LIGHT OF LATER EXPERIENCE, IS SEEN TO CREATE CONFUSION
AND CONFLICT IN THE APPLICATION OF A SETTLED PRINCIPLE OF INTERNAL
REVENUE LEGISLATION."  HELVERING V. HALLOCK, 309 U.S. 106, 121, NOTE
7.  THE BASIC "SETTLED PRINCIPLE" NOW AS WHEN HALLOCK WAS WRITTEN IS
THAT WHERE A TRUST AGREEMENT RESERVES THE SETTLOR'S POSSESSION OR
ENJOYMENT OF PART OF ALL OF THE TRUST PROPERTY UNTIL DEATH, THE VALUE
OF THE TRUST SHOULD BE INCLUDED IN THE SETTLOR'S GROSS ESTATE. 

THE ARGUMENTS IN DISSENT HERE BASED ON STARE DICISIS, LEGISLATIVE
HISTORY, AND POSSIBLE CONSEQUENCES OF THIS COURT'S HOLDING, ARE
STRIKINGLY LIKE THE FORCEFUL ARGUMENTS MADE IN THE HALLOCK DISSENT. 
BUT THE PERSUASIVE AND SOUND ARGUMENTS ADVANCED BY THE COURT'S
SPOKESMAN IN HALLOCK WERE THERE CONSIDERED BY THE MAJORITY OF THIS
COURT TO BE A SUFFICIENT ANSWER TO WHAT WAS SAID IN THE HALLOCK
DISSENT.  PARTICULARLY FORCEFUL WAS THIS COURT'S STATEMENT IN THE
HALLOCK OPINION THAT "WE WALK ON QUICKSAND WHEN WE TRY TO FIND IN THE
ABSENCE OF CORRECTIVE LEGISLATION A CONTROLLING LEGAL PRINCIPLE." 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE REED, CONCURRING IN NO. 3, SPIEGEL V. COMMISSIONER, POST,
P. 701, AND DISSENTING IN NO. 5, COMMISSIONER V. CHURCH, ANTE, P. 632. 

AS THESE TAX DECISIONS MAY HAVE AN INFLUENCE ON SUBSEQUENT DECISIONS
BEYOND THE LIMITED AREA OF THE ISSUES DECIDED, I HAVE THOUGHT IT
ADVISABLE TO STATE MY POSITION FOR WHATEVER LIGHT IT MAY THROW.  I
AGREE WITH THE JUDGMENT DIRECTED BY THE COURT IN SPIEGEL V.
COMMISSIONER AND WITH SO MUCH OF THE OPINION AS RESTS SOLELY UPON THE
CONTROLLING EFFECT OF THE POSSIBILITY OF REVERTER UNDER THE LAW OF
ILLINOIS.  AS I DISAGREE WITH CHURCH V. COMMISSIONER, DECIDED TODAY, I
CANNOT ACCEPT SO MUCH OF THE OPINION IN THE SPIEGEL CASE, P. 705, AS
SEEMS TO PUT RELIANCE UPON THE FACT THAT THE SETTLOR AS TRUSTEE RETAINS
ANY "POSSESSION OR ENJOYMENT" OF THE TRUST, OTHER THAN A POSSIBILITY OF
REVERTER.  I AM OPPOSED TO THE VIEW EXPRESSED IN THE DISSENT WRITTEN BY
MR. JUSTICE BURTON THAT THE SETTLOR'S INTENT RATHER THAN THE EFFECT OF
HIS ACTS IS THE TOUCHSTONE TO DETERMINE THE TAXABILITY OF HIS PROPERTY
FOR ESTATE TAX PURPOSES. 

SO FAR AS COMMISSIONER V. CHURCH IS CONCERNED, I DO NOT BELIEVE THAT
MAY V. HEINER, 281 U.S. 283, SHOULD BE OVERRULED.  THE JOINT RESOLUTION
OF MARCH 3, 1931, THEREFORE, STANDS AS THE DETERMINATIVE FACTOR IN
REACHING A CONCLUSION AS TO THE TAXABILITY OF THE CHURCH ESTATE. 
HASSETT V. WELCH, 303 U.S. 303, DECIDED THAT THE RESOLUTION WAS NOT
RETROACTIVE.  CONSEQUENTLY, THE CHURCH ESTATE IS NOT SUBJECT TO AN
ESTATE TAX BECAUSE OF THE RESERVATION OF A LIFE ESTATE. 

WE ARE ASKED TO ACCEPT AN OVERRULING OF MAY V. HEINER, SUPRA, AND
ALSO, I THINK, OF REINECKE V. NORTHERN TRUST CO., 278 U.S. 339, NOT TO
MENTION THE INCIDENTAL FALL OF HASSETT V. WELCH, SUPRA, ON THE ONE
SIDE, OR, ON THE OTHER HAND, TO LIMIT THE RULE AS TO THE POSSIBILITY OF
REVERTER IN HELVERING V. HALLOCK, 309 U.S. 106, AND THE NUMEROUS CASES
THAT FOLLOW ITS TEACHING, TO REVERTERS EXPRESSLY RESERVED IN THE
DOCUMENTS.  LEGISLATION INDICATES A PURPOSE TO PROMOTE GIFTS AS A
DESIRABLE MEANS FOR EARLY DISTRIBUTION OF PROPERTY BENEFITS.  IN
RELIANCE UPON A LONG-SETTLED COURSE OF LEGISLATIVE AND JUDICIAL
CONSTRUCTION, DONORS HAVE MADE PROPERTY ARRANGEMENTS THAT SHOULD NOT
NOW BE UPSET SUMMARILY WITH NO STRONGER REASONS FOR DOING SO THAN THAT
FORMER COURTS AND THE CONGRESS DID NOT INTERPRET THE LEGISLATION IN THE
SAME WAY AS THIS COURT NOW DOES.  JUDICIAL EFFORTS TO MOLD TAX POLICY
BY ISOLATED DECISIONS MAKE A NATIONAL TAX SYSTEM DIFFICULT TO DEVELOP,
ADMINISTER OR OBSERVE.  FOR MORE THAN THIRTY YEARS CONGRESS HAS
LEGISLATED UPON THIS PROBLEM AND THIS COURT HAS INTERPRETED THE
ENACTMENTS SO THAT NOW WHAT SEEMS TO ME A REASONABLY FAIR
INTERPRETATION OF TAX LIABILITY UNDER SEC. 811(C) OF THE INTERNAL
REVENUE CODE, AS NOW WRITTEN, HAS BEEN WORKED OUT.  RELYING UPON THE
DESIRABILITY OF STARE DECISIS UNDER THE DECISIONS CONCERNING SEC.
811(C), I WOULD LEAVE SUCH CHANGES AS MAY SEEM DESIRABLE TO THE
CONGRESS, WHERE GENERAL AUTHORITY FOR THAT PURPOSE RESTS. 

(1)  A PROVISION INCLUDING IN A DECEDENT'S ESTATE THE VALUE AT TIME
OF DEATH OF INTEREST IN ANY TRANSFER BY TRUST "IN CONTEMPLATION OF OR
INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH" HAS BEEN IN THE FEDERAL ESTATE TAX LAW SINCE THE INCOME TAX ACT
OF 1916.  FN1  IT WILL BE NOTED THAT THE PHRASE RELATING TO A TRANSFER
"IN CONTEMPLATION OF OR INTENDED TO TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER HIS (SETTLOR'S) DEATH" HAS NOT CHANGED.  IT WAS
CONSTRUED BY THIS COURT, AT FIRST, TO APPLY TO THOSE CIRCUMSTANCES
WHERE SOMETHING PASSED FROM THE "POSSESSION, ENJOYMENT OR CONTROL OF
THE DONOR AT HIS DEATH."  REINECKE V. NORTHERN TRUST CO., 278 U.S. 339,
348.  "OF COURSE IT WAS NOT ARGUED THAT EVERY VESTED INTEREST THAT
MANIFESTLY WOULD TAKE EFFECT IN ACTUAL ENJOYMENT AFTER THE GRANTOR'S
DEATH WAS WITHIN THE STATUTE."  SHUKERT V. ALLEN, 273 U.S. 545, 547. 
WHEN, AFTER THE EXECUTION OF A TRUST, THE SETTLOR "HELD NO RIGHT IN THE
TRUST ESTATE WHICH IN ANY SENSE WAS THE SUBJECT OF TESTAMENTARY
DISPOSITION," THIS COURT WAS OF THE OPINION THAT THE GIFT WAS NOT
INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT THE DONOR'S
DEATH.  HELVERING V. ST. LOUIS UNION TR. CO., 296 U.S. 39, 43;
HELVERING V. CITY BANK FARMERS TRUST CO., 296 U.S. 85, 88; BURNET V.
NORTHERN TRUST CO., 283 U.S. 782; MORSMAN V. BURNET, 283 U.S. 783;
MCCORMICK V. BURNET, 283 U.S. 784; MAY V. HEINER, 281 U.S. 238.  A
RESERVED POWER OF APPOINTMENT OR CHANGE IS, IN A SENSE, A TESTAMENTARY
POWER OVER THE CORPUS.  REINECKE V. NORTHERN TRUST CO., SUPRA, AT 345;
PORTER V. COMMISSIONER, 288 U.S. 436. 

KLEIN V. UNITED STATES, 283 U.S. 231, BROUGHT DOUBT INTO THE ABOVE
CONCEPTION OF THE MEANING OF THE PHRASE IN QUESTION.  THAT TRUST WAS TO
A FOR LIFE AND ON CONDITION THAT A SURVIVE THE DONOR TO A IN FEE
SIMPLE.  IT WAS THE DEATH OF THE DONOR THAT "BROUGHT THE LARGER ESTATE
INTO BEING  ... AND EFFECTED ITS TRANSMISSION FROM THE DEAD TO THE
LIVING," THIS COURT SAID IN UPHOLDING THE TAX ON THE TRUST PROPERTY. 
THIS WAS CONSTRUED BY FOUR MEMBERS OF THE COURT TO MEAN THAT THE
DONOR'S DEATH "OPERATING UPON HIS GIFT INTER VIVOS NOT COMPLETE UNTIL
HIS DEATH, IS THE EVENT WHICH CALLS THE STATUTE INTO OPERATION."  MR.
JUSTICE STONE, DISSENTING IN THE LATER CASE OF HELVERING V. ST. LOUIS
TRUST CO., SUPRA, 46.  THE TWO POSITIONS, ONE THAT ONLY POWER IN THE
SETTLOR AT THE TIME OF DEATH TO CAUSE THE PROPERTY TO BE TRANSFERRED
FROM HIM TO ANOTHER BY WILL OR BY DESCENT OR TO SELECT BENEFICIARIES
THROUGH APPOINTMENT BROUGHT THE PROPERTY FORMERLY TRANSFERRED WITHIN
THE REACH OF THE WORDS "INTENDED TO TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER HIS DEATH," THE REINECKE CONCEPT, AND THE OTHER
THAT, IN ADDITION, EVERY POSSIBILITY OF REVERSION OF THE TRANSFERRED
INTEREST TO THE SETTLOR MUST BE BARRED BY THE TRUST INSTRUMENT, THE
DISSENTER'S GROUND IN HELVERING V. ST. LOUIS TRUST CO., WERE FULLY
DISCUSSED IN THE MAJORITY AND DISSENTING OPINIONS IN HELVERING V.
HALLOCK, 309 U.S. 106.  FN2  THE LATTER POSITION WAS ACCEPTED AS THE
SOUND INTERPRETATION BY US AND I ADHERE TO THAT VIEW FOR THE REASONS
STATED IN THE COURT'S OPINION IN HELVERING V. HALLOCK.  CF. EISENSTEIN,
ESTATE TAXES AND THE HIGHER LEARNING OF THE SUPREME COURT, 3 TAX LAW
REV. 395.  THAT INTERPRETATION HAS GAINED STRENGTH FROM THE FACT THAT
CONGRESS HAS NOT REPUDIATED IT AS INCONSISTENT WITH THE LEGISLATIVE
PURPOSE AND BY OTHER JUDGMENTS BY THIS COURT APPLYING THE PRINCIPLES OF
THE HALLOCK CASE IN ACCORDANCE WITH THIS STATEMENT.  FIDELITY
PHILADELPHIA TRUST CO. V. ROTHENSIES, 324 U.S. 108; COMMISSIONER V.
ESTATE OF FIELD, 324 U.S. 113.  POSSESSION OR ENJOYMENT OF PROPERTY AS
HERETOFORE APPLIED HAS MEANT FROM THE STANDPOINT OF THE TAXABILITY OF
THE TRANSFEROR'S ESTATE, AT LEAST, THAT THE DEATH OF THE TRANSFEROR
PERFECTS THE RIGHT OF THE TRANSFEREE AND CUTS OFF ANY POSSIBILITY OF
REVERTER TO THE TRANSFEROR LEFT BY THE INSTRUMENTS OF TRANSFER.  IF THE
TRANSFEROR REACQUIRED THE PROPERTY BY INHERITANCE OR BY PURCHASE, OTHER
FACTORS WOULD ENTER.  BEFORE THE JOINT RESOLUTION EVEN THE RESERVATION
OF A LIFE ESTATE WAS INSUFFICIENT TO PRESERVE POSSESSION OR ENJOYMENT
IN THE TRANSFEROR AS NOTHING PASSED AT HIS DEATH.  WHEN WORDS SUCH AS
"POSSESSION OR ENJOYMENT" USED IN A SECTION OF A REVENUE STATUTE WITH
THEIR MANY POSSIBLE SHADES AND AMBIGUITIES OF MEANING HAVE BEEN GIVEN
DEFINITION THROUGH THE COURSE OF LEGISLATION AND LITIGATION, A CHANGE
BY COURTS SHOULD BE AVOIDED.  FN3  BY THE RESOLUTION SUCH A RESERVATION
OR THAT OF POWER OF APPOINTMENT WAS ALSO MADE THE SOURCE OF AN ESTATE
TAX. 

PRIOR CASES HAVE INVOLVED TRUST INSTRUMENTS WHERE THE SETTLOR
SPECIFICALLY RESERVED REMAINDERS, REVERTERS OR CONTINGENT POWERS OF
APPOINTMENT.  IN THESE CASES THE VALUE AT DEATH OF THE ENTIRE CORPUS OF
THE TRUSTS WAS TAXED.  THIS WAS BECAUSE IN EACH CASE THERE WAS A
CONTINGENCY THROUGH WHICH COMPLETED GIFTS OF THE ENTIRE CORPUS TO THE
BENEFICIARIES MIGHT FAIL BEFORE THE DEATH OF THE SETTLOR WITH THE
RESULT THAT THE SETTLOR WOULD AGAIN CONTROL THE TRANSFER OF THE
CORPUS.  FN4  IN SUCH CIRCUMSTANCES, I TAKE IT AS SETTLED THAT THE
PROPERTY IS TAXABLE ON THE EVENT OF THE SETTLOR'S DEATH UNDER SECS. 810
AND 811(C).  CF. 324 U.S. AT 111. 

THE TRUST INSTRUMENTS IN THE PRESENT CASES OF THE SPIEGEL AND CHURCH
ESTATES DO NOT SPECIFICALLY PROVIDE FOR SUCH POSSIBILITY OF REVERTER OR
FOR REGAINING CONTROL OF THE DEVOLUTION OF THE PROPERTY.  THE ISSUE
RAISED BY THESE CASES IS WHETHER A LIKE POSSIBILITY OF REVERTER
SPRINGING NOT FROM THE INSTRUMENT BUT BY OPERATION OF LAW THROUGH THE
FAILURE OF ALL BENEFICIARIES NAMED IN THE TRUST INSTRUMENT SHALL HAVE
THE SAME EFFECT.  ALL NAMED BENEFICIARIES IN THESE TWO TRUSTS MIGHT DIE
BEFORE THE SETTLORS WITHOUT SURVIVING ISSUE.  THUS, DEPENDING UPON THE
CONTROLLING STATE LAW, THE SETTLORS MIGHT REPOSSESS THE ESTATES.  FN5 

TO LAY BARE THE HEART OF THE PROBLEM, IT SEEMS HELPFUL TO PUT ASIDE
CERTAIN PHASES OF POSSIBLE CONGRESSIONAL INTENTION AND POSSIBLE
STATUTORY MEANING, AS NOT INVOLVED OR HERETOFORE DECIDED FOR SOUND
REASONS. 

A. IT WAS NOT THE PURPOSE OF CONGRESS AT ANY TIME IN DEALING WITH THE
INCLUSION OF TRANSFERS OF PROPERTY IN TRUST TO HAVE THE WHOLE VALUE, AT
THE DONOR'S DEATH, OF THE TOTAL OF ALL GIFTS MADE DURING LIFE, INCLUDED
IN THE SETTLOR'S ESTATE FOR ESTATE TAX PURPOSES.  FN6  THE WORDS OF THE
STATUTE SHOW THIS.  SEE NOTE 1, SUPRA.  GIFTS IN TRUST ARE TAXABLE ONLY
WHERE AN INTEREST REMAINS IN THE DONOR.  THEREFORE A GIFT BY A TO A
TRUST COMPANY TO HOLD IN TRUST FOR B DURING B'S LIFE AND AT B'S DEATH
TO C, HIS HEIRS, DEVISEES OR ASSIGNS IS NOT TAXABLE UNDER SEC. 811(C). 
REINECKE V. NORTHERN TRUST CO., SUPRA, 347-48.  BEFORE THE AMENDMENT OF
1931  FN7  THE RETENTION OF AN ESTATE FOR LIFE IN THE SETTLOR DID NOT
SUBJECT THE TRUST TO ESTATE TAX WHERE THE REMAINDER WAS TAKEN BY
BENEFICIARIES WITHOUT REGARD TO FUTURE ACTION BY THE SETTLOR.  FN8 

B. THE JOINT RESOLUTION OF 1931 MADE NO CHANGE IN THE LANGUAGE OF THE
SUBSECTION OF THE ESTATE TAX RELATING TO THE INCLUSION IN ESTATES OF
INTERESTS IN TRUSTS INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT
AT OR AFTER DEATH.  NEITHER THE RESOLUTION NOR THE DISCUSSION ON THE
FLOOR OF EITHER HOUSE SUGGESTED A CHANGE IN THE WORDS OF THE SECTION TO
DEFINE WHAT IS MEANT BY AN INTEREST INTENDED TO TAKE EFFECT AFTER
DEATH.  CONGRESS AIMED AT THE RETENTION OF LIFE INTERESTS, NOT AT THIS
COURT'S DETERMINATIONS OF THE MEANING OF "POSSESSION OR ENJOYMENT." 
THOSE WORDS WERE LEFT UNTOUCHED AND AN ADDITION WAS MADE PROVIDING FOR
THE INCLUSION IN THE ESTATE OF INTERESTS WHERE THE SETTLOR HAD RETAINED
THE POSSESSION OR ENJOYMENT OF THE PROPERTY OR A RIGHT TO INCOME OR THE
POWER TO DESIGNATE THE BENEFICIARIES.  SEE NOTE 1, SUPRA.  THEREFORE
THE WORDS RELATING TO INTENTION, DEATH, POSSESSION OR ENJOYMENT HAVE
THE SAME MEANING NOW AS THEY DID BEFORE THE 1931 AMENDMENT WAS
ADOPTED.  FN9  THE DOCTRINE OF MAY V. HEINER THAT THE STATUTE, AS
WRITTEN WHEN THAT CASE WAS HANDED DOWN, DID NOT COVER RESERVATIONS OF
LIFE INTERESTS AND POWERS OF DESIGNATION WAS LEGISLATIVELY CHANGED BY
ADDING THE WORDS OF THE JOINT RESOLUTION.  SEE IN ACCORD HELVERING V.
HALLOCK, SUPRA.  WHEN HALLOCK THERE REFERS TO THE DOCTRINE OF MAY V.
HEINER DISCARDED BY CONGRESS, IT IS THE DOCTRINE OF MAY V. HEINER THAT
A SETTLOR MIGHT RESERVE A LIFE INTEREST THAT WAS MEANT.  HALLOCK DID
NOT SAY OR IMPLY, AS I READ IT, THAT THE MAY V. HEINER DOCTRINE, WHICH
IS SUPPORTED BY REINECKE AND SHUKERT V. ALLEN, AS TO WHEN "POSSESSION
OR ENJOYMENT" PASSES FROM A DONOR WAS CHANGED BY THE RESOLUTION.  THESE
CASES HAD HELD THAT SOMETHING MUST PASS FROM THE SETTLOR.  THE ONLY
DIFFERENCE WROUGHT BY HALLOCK ON THIS CONCEPT OF POSSESSION AND
ENJOYMENT WAS TO APPLY THE KLEIN RULE THAT THE ENLARGEMENT OF THE
REMAINDER ESTATE DID EFFECT A TRANSMISSION FROM THE DEAD TO THE
LIVING. 

ASSUMING THAT CONGRESS MIGHT HAVE LEGISLATED SO THAT THE ADDED WORDS
WOULD APPLY TO THE ESTATES OF ALL WHO DIED AFTER THE PASSAGE OF THE
JOINT RESOLUTION, CONGRESS DEFINITELY MANIFESTED AN INTENTION THAT THE
AMENDMENTS WERE NOT TO APPLY TO TRUSTS CREATED PRIOR TO THE RESOLUTION
THOUGH THE SETTLOR MIGHT DIE SUBSEQUENTLY THERETO.  THIS WHOLE MATTER
IS DISCUSSED THOROUGHLY AND, I THINK, UNANSWERABLY IN HASSETT V. WELCH,
303 U.S. 303, AND I CAN ADD NOTHING TO THE ARGUMENT.  ATTENTION,
HOWEVER, SHOULD BE CALLED TO THE STATEMENTS ON THE FLOOR OF THE HOUSE
BY MEMBERS OF THE COMMITTEE ON WAYS AND MEANS AT THE TIME OF THE
PASSAGE OF THE JOINT RESOLUTION.  FN10  MR. HAWLEY, CHAIRMAN OF THE
COMMITTEE, ANSWERING A QUESTION AS TO THE NATURE OF THE RESOLUTION
SAID, "IT PROVIDES THAT HEREAFTER NO SUCH METHOD SHALL BE USED TO EVADE
THE TAX." 

MR. GARNER OF THE SAME COMMITTEE STATED: 

"THE COMMITTEE ON WAYS AND MEANS THIS AFTERNOON HAD A MEETING AND
UNANIMOUSLY REPORTED THE RESOLUTION JUST PASSED.  WE DID NOT MAKE IT
RETROACTIVE FOR THE REASON THAT WE WERE AFRAID THAT THE SENATE WOULD
NOT AGREE TO IT.  BUT I DO HOPE THAT WHEN THIS MATTER IS CONSIDERED IN
THE SEVENTY-SECOND CONGRESS WE MAY BE ABLE TO PASS A BILL THAT WILL
MAKE IT RETROACTIVE." 

AND IN ANSWER TO A QUESTION, HE REITERATED, "I HAVE STRONG HOPES THAT
THE NEXT CONGRESS WILL MAKE IT RETROACTIVE."  CONGRESS NEVER TOOK ANY
SUBSEQUENT ACTION AND THIS COURT'S INTERPRETATION OF THE MEANING OF
"INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT" REMAINED THE
SAME.  THE ADDITION TO THE SECTION MADE BY THE JOINT RESOLUTION MADE
CERTAIN FUTURE GIFTS INTER VIVOS, WHICH WOULD THERETOFORE HAVE BEEN
FREE OF ESTATE TAX, SUBJECT TO SUCH A TAX. 

C. AS A COROLLARY TO THE FOREGOING SECTION B, IT IS CLEAR TO ME ALSO
THAT CONGRESS BY THE JOINT RESOLUTION MADE NO CHANGE IN THE STATUTE FOR
THE PURPOSE OF BRINGING TRUSTS INTO AN ESTATE MERELY BECAUSE THE ACTUAL
USE OF THE ESTATE OR ITS INCOME BY THE CESTUI QUE TRUST WAS POSTPONED
UNTIL THE DEATH OF THE DONOR.  SHUKERT V. ALLEN, SUPRA. 

D. IT IS IMPOSSIBLE FOR ME TO LOOK UPON THE SPIEGEL OR CHURCH TRUST
AS CLOSELY AKIN TO A WILL.  THE DECISIVE DIFFERENCE IS THAT A WILL MAY
BE CHANGED AT ANY TIME DURING LIFE, WHILE THESE TRUSTS OBLITERATED ANY
POWER IN THE SETTLORS TO CHANGE OR MODIFY THE DEVOLUTION.  ONLY THE
CHANCES OF DEATH, WHOLLY BEYOND THEIR CONTROL, MIGHT PUT THE
DISPOSITION AGAIN IN THEIR HANDS.  FURTHER, DURING LIFE THE SETTLORS
MUST HANDLE THE TRUSTS FOR THE BENEFIT OF ALL BENEFICIARIES.  THEY WERE
NOT FREE TO DO AS THEY PLEASED AS WOULD HAVE BEEN THE CASE OF A WILL. 
OF COURSE, IF THE SETTLOR HAD MADE SIMILAR PROVISION FOR THE OBJECTS OF
HIS BOUNTY BY WILL, IN EFFECT AT DEATH, THE RESULT TO THE TAKERS WOULD
HAVE BEEN THE SAME; OR IF, IN THE SPIEGEL CASE, THE FATHER HAD ANNUALLY
GIVEN HIS CHILDREN THE SAME SUMS THAT THE TRUST EARNED, THEIR ECONOMIC
POSITION WOULD HAVE BEEN THE SAME FOR THAT YEAR BUT THE CHILDREN COULD
NOT LOOK FORWARD WITH CERTAINTY TO THEIR ANNUAL INCOME FROM THE TRUST. 
WITHOUT THE TRUST, THE BENEFICIARIES' INCOME WOULD HAVE BEEN SUBJECT TO
THE WISH OF THE SETTLOR.  IT NEEDS NO ARGUMENT OR ILLUSTRATION TO SHOW
THAT A FATHER'S GIFT FROM HIS INCOME IS A VERY DIFFERENT THING FROM AN
IRREVOCABLE GIFT OF PRINCIPAL TO A CHILD. 

RETURNING TO THE ISSUE IN THESE PRESENT CASES, THE DIFFERENCE BETWEEN
THEM AND HELVERING V. HALLOCK AND ITS PROGENY IS THAT HERE THE
POSSIBILITY OF REVERTER ARISES BY OPERATION OF LAW WHEREAS IN THEM THE
POSSIBILITY ARISES OUT OF THE TERMS OF THE TRUST.  THAT DIFFERENCE I DO
NOT THINK IS MATERIAL AS TO TAXABILITY UNDER SEC. 810 AND SEC. 811(C). 
GRANTING THAT IN EARLY INTERPRETATIONS OF THE SECTIONS THIS COURT MIGHT
LOGICALLY HAVE DETERMINED THAT REMOTE POSSIBILITIES OF REVERTER DID NOT
INTERFERE WITH THE BENEFICIARIES' COMPLETE POSSESSION AND ENJOYMENT OF
THE GIFT DURING THE LIFETIME OF THE DONOR, THE BALANCE OF EXPERIENCE
AND PRECEDENT, SINCE HELVERING V. HALLOCK, TIPS THE SCALE THE OTHER WAY
IN MY JUDGMENT.  IT IS IMPORTANT, THOUGH NOT DECISIVE, SINCE WE ARE NOT
JUSTIFIED IN PUSHING EVERY RULE TO ITS LOGICAL EXTREME, THAT THIS
CONCLUSION IS A LOGICAL OUTGROWTH OF THE HALLOCK RULE.  SINCE WE KNOW
IT IS THE PURPOSE OF CONGRESS TO PUT AN ESTATE TAX ON GIFTS INTENDED TO
TAKE EFFECT AT OR AFTER DEATH, THE INTERPRETATION OF THOSE WORDS SHOULD
BE BROAD ENOUGH TO ACCOMPLISH THE PURPOSE EFFECTUALLY.  "INTENDED TO
TAKE EFFECT," IN THAT VIEW, HAS FOR ME THE MEANING OF AN INTENTION TO
ABIDE BY THE LEGAL RESULT OF THE TERMS OF THE TRUST. 

I RECOGNIZE THAT THIS INTERPRETATION HAS POSSIBILITIES OF VARIATION
IN RESULT THROUGH THE EMPLOYMENT OF TECHNICALITIES OF PROPERTY LAW. 
THE ADDITION OF A PHRASE MAY MAKE THE DIFFERENCE BETWEEN A COMPLETED OR
AN INCOMPLETED GIFT.  TO MAKE THE INTENTION OF THE SETTLOR THE
DETERMINATIVE FACTOR CREATES EQUAL DIFFICULTIES.  NOR AM I UNMINDFUL OF
THIS COURT'S EFFORT, IN WHICH I JOINED, IN THE HALLOCK CASE TO FIND A
HARMONIZING PRINCIPLE FOR THE DIFFICULTIES ENGENDERED BY SEC. 811(C). 
IN THAT CASE THE PRINCIPLE APPLIED WAS THAT A TAX LIES AGAINST AN
ESTATE WHEN THE DEATH OF THE GRANTOR BRINGS A LARGER ESTATE INTO BEING
FOR THE BENEFICIARY.  THIS DOES ACCOMPLISH UNIFORMITY IN THE
INTERPRETATION OF THE SECTION OF FEDERAL LAW.  HALLOCK ATTEMPTED
NOTHING MORE.  IT LEAVES ITS APPLICATION TO PARTICULAR TRUSTS DEPENDENT
UPON STATE DETERMINATION OF WHEN A SETTLOR HAS DIVESTED HIMSELF OF
EVERY POSSIBLE INTEREST IN THE RES OF A TRUST.  FN11  WE ARE DEALING
WITH A STATUTE AND CONGRESS IS FULLY COMPETENT TO CORRECT ANY
MISUNDERSTANDING WE MAY HAVE OF THE CONGRESSIONAL INTENTION.    (2)
THE FOREGOING LEADS TO THE CONCLUSION IN THE SPIEGEL CASE THAT THIS
ESTATE MUST PAY A FEDERAL ESTATE TAX ON THE TRUST RES UNLESS THAT RES,
UNDER THE LAW OF ILLINOIS, WOULD HAVE PASSED TO THE HEIRS AT LAW OR THE
LEGATEES OF THE LAST DESCENDANT OF THE SETTLOR.  IF UNDER ILLINOIS LAW
THE ESTATE RETURNED TO THE SETTLOR ON HIS SURVIVING ALL HIS
DESCENDANTS, THE TAX IS DUE.  THE POSSIBILITIES OF THIS HAPPENING IN
THIS CASE ARE EXTREMELY REMOTE BUT A TRUST MIGHT HAVE BEEN CREATED BY A
YOUNG SON FOR AN AGED MOTHER TO PAY HER THE INCOME FOR LIFE AND AT THE
SETTLOR'S DEATH TO PAY HER THE PRINCIPAL.    THE COURT OF APPEALS
CONCLUDED (159 F.2D AT 259) THAT "IF NONE OF THE BENEFICIARIES SURVIVED
THE SETTLOR, AND THAT WAS A POSSIBILITY, THEN THE TRUST FAILED, AND THE
TRUSTEES WOULD HOLD THE BARE NAKED TITLE TO THE CORPUS AS RESULTING
TRUSTEES FOR THE SETTLOR."  THERE IS NO ILLINOIS CASE HOLDING SQUARELY
ON THIS POINT, AND IN THE ABSENCE OF SUCH A DETERMINATION BY A STATE
COURT WE DO NOT INTERFERE WITH A REASONABLE DECISION OF THE CIRCUIT
WHICH EMBRACES ILLINOIS.  HELVERING V. STUART, 317 U.S. 154, 164;
MACGREGOR V. STATE MUTUAL LIFE ASSURANCE CO., 315 U.S. 280.  THE RULE
FOLLOWED BY THE COURT OF APPEALS ACCORDS WITH THAT GENERALLY ACCEPTED. 
RESTATEMENT, TRUSTS SEC. 411; 3 SCOTT, TRUSTS SEC. 411; 2 BOGERT,
TRUSTS AND TRUSTEES SEC. 468; HARRIS TRUST & SAVINGS BANK V. MORSE, 238
ILL. APP. 232; LILL V. BRANT, 6 ILL. APP. 366, 376.  FN12 

THE TAXPAYER RELIES UPON CASES WHEREIN THE LANGUAGE OF WILLS WAS
CONSTRUED IN ORDER TO CREATE VESTED REMAINDERS.  THESE CASES, HOWEVER,
DO NOT OVERTURN THE FIRMLY SETTLED PRINCIPLE THAT WHERE AN EXPRESS
TRUST FAILS FOR LACK OF A BENEFICIARY, A RESULTING TRUST IN FAVOR OF
THE SETTLOR ARISES BY OPERATION OF LAW.  FN13  TO VEST PROPERTY UNDER A
WILL OR DEED IS DESIRABLE.  TO VEST PROPERTY UNDER A TRUST MAY NOT BE.
IT IS MORE REASONABLE TO RETURN TRUST PROPERTY TO THE SETTLOR ON
FAILURE OF THE TRUST THAN TO HAVE IT GO TO THE HEIRS OF THE
BENEFICIARY. 

FROM A READING OF THE TRUST INSTRUMENT INVOLVED IN THE INSTANT CASE,
IT IS MANIFEST THAT THE SETTLOR DID NOT INTEND TO GRANT HIS CHILDREN
THE POWER TO DISPOSE OF THEIR RESPECTIVE SHARES SHOULD THEY PREDECEASE
THE SETTLOR WITHOUT ISSUE.  THE SETTLOR SPECIFICALLY NAMED AS
BENEFICIARIES OF THE TRUST HIS CHILDREN AND GRANDCHILDREN.  THAT HE
INTENDED TO RESTRICT THE TRUST TO THESE TWO CLASSES OF BENEFICIARIES IS
EVIDENCED BY THE PROVISION OF THE INSTRUMENT THAT IN THE EVENT OF THE
DEATH OF A CHILD WITHOUT ISSUE THAT CHILD'S SHARE WAS TO BE ADDED TO
THE SHARES OF THE SETTLOR'S SURVIVING CHILDREN.  HIS RETENTION OF THE
TRUSTEESHIP AND FAILURE TO GRANT THE POWER OF DISPOSITION TO HIS
CHILDREN IN HIS LIFETIME NEGATIVE ANY INTENTION OF THE SETTLOR TO
EXCLUDE THE POSSIBILITY OF A REVERSION OF THE TRUST PROPERTY TO
HIMSELF. 

NO ERROR APPEARS IN THE CONCLUSION OF THE COURT OF APPEALS ON THIS
POINT. 

(3)  FINALLY, THE SITUATION IN THE CHURCH CASE MUST BE DEALT WITH. 
THE TRUST WAS CREATED IN NEW YORK BY A RESIDENT OF NEW YORK WHO DIED A
RESIDENT OF NEW JERSEY.  TWO OF THREE TRUSTEES WERE AT ALL TIMES
RESIDENTS OF NEW YORK WHERE THE STOCKS AND ACCOUNTS OF THE TRUST WERE
KEPT.  FROM WHAT IS BEFORE ME, I WOULD ASSUME THAT THE NEW YORK LAW
WOULD CONTROL AS TO THE POSSIBILITY OF THE RETENTION OF AN INTEREST BY
THE SETTLOR.  THIS PRODUCES A VARIANT FROM THE SPIEGEL CASE.  THE
DETERMINATION OF NEW YORK LAW WILL BE MADE BY A CIRCUIT THAT DOES NOT
INCLUDE THAT STATE.  THIS, I THINK, IS NOT SIGNIFICANT IN DETERMINING
THE COURSE TO BE FOLLOWED. 

AS THE COURT OF APPEALS FOR THE THIRD CIRCUIT MADE ITS DECISION ON
THE AUTHORITY OF THE DOBSON RULE, 161 F.2D 11, IT DID NOT CONSIDER THE
EFFECT OF HASSETT V. WELCH, 303 U.S. 303.  AS MAY V. HEINER STANDS, IN
MY OPINION, TRUSTS, LIKE THE CHURCH TRUST, CREATED PRIOR TO THE PASSAGE
OF THE JOINT RESOLUTION OF MARCH 3, 1931, ARE NOT INCLUDABLE IN THE
GROSS ESTATE OF A SETTLOR FOR FEDERAL ESTATE TAX PURPOSES UNLESS THERE
IS A POSSIBILITY OF REVERTER TO THE SETTLOR BY OPERATION OF THE
CONTROLLING STATE LAW.  TO DETERMINE THIS QUESTION, I WOULD VACATE THE
JUDGMENT OF THE THIRD CIRCUIT AND REMAND THE CASE TO THAT COURT TO
DETERMINE THE STATE LAW. 

I WOULD AFFIRM NO. 3, SPIEGEL V. COMMISSIONER; I WOULD VACATE NO. 5,
COMMISSIONER V. CHURCH. 

FN1  THIS PROVISION FIRST APPEARED IN SEC. 202(B) OF THE REVENUE ACT
OF 1916, 39 STAT. 756, 777-78, AND READ AS FOLLOWS: 

"THAT THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE
DETERMINED BY INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL
PROPERTY, REAL OR PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED: 

     .         .         .         .         . 

"(B)  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS
AT ANY TIME MADE A TRANSFER, OR WITH RESPECT TO WHICH HE HAS CREATED A
TRUST, IN CONTEMPLATION OF OR INTENDED TO TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER HIS DEATH, EXCEPT IN CASE OF A BONA FIDE SALE FOR
A FAIR CONSIDERATION IN MONEY OR MONEY'S WORTH.  ..." 

WITH SMALL CHANGES IT WAS INCLUDED IN SEC. 402(C) OF THE REVENUE ACTS
OF 1918 AND 1921, 40 STAT. 1057, 1097; 42 STAT. 227, 278, AND IN SEC.
302(C) OF THE REVENUE ACTS OF 1924 AND 1926, 43 STAT. 253, 304; 44
STAT. 9, 70.  IN 1931 THE PROVISION WAS AMENDED BY H.J. RES. NO. 529,
46 STAT. 1516, AND ASSUMED ITS PRESENT FORM IN THE REVENUE ACT OF 1932,
47 STAT. 169, 279.  IT NOW READS AS FOLLOWS: 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR
PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED, EXCEPT REAL
PROPERTY SITUATED OUTSIDE OF THE UNITED STATES - 

     .         .         .         .         . 

"(C)  TRANSFERS IN CONTEMPLATION OF, OR TAKING EFFECT AT DEATH. 

"TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS AT
ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, IN CONTEMPLATION OF OR
INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH, OR OF WHICH HE HAS AT ANY TIME MADE A TRANSFER, BY TRUST OR
OTHERWISE, UNDER WHICH HE HAS RETAINED FOR HIS LIFE OR FOR ANY PERIOD
NOT ASCERTAINABLE WITHOUT REFERENCE TO HIS DEATH OR FOR ANY PERIOD
WHICH DOES NOT IN FACT END BEFORE HIS DEATH (1) THE POSSESSION OR
ENJOYMENT OF, OR THE RIGHT TO THE INCOME FROM, THE PROPERTY, OR (2) THE
RIGHT, EITHER ALONE OR IN CONJUNCTION WITH ANY PERSON, TO DESIGNATE THE
PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE INCOME
THEREFROM; EXCEPT IN CASE OF A BONA FIDE SALE FOR AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH.  ..." 

THE ITALICIZED WORDS ARE THE ADDITIONS MADE BY THE AMENDMENTS OF 1931
AND 1932 TO SEC. 302(C) OF THE REVENUE ACT OF 1926.  SEE HASSETT V.
WELCH, 303 U.S. AT 307-308.  THE UNDERSCORED PHRASE AT THE END OF THE
FIRST PARAGRAPH WAS ADDED BY THE REVENUE ACT OF 1934, SEC. 404, 48
STAT. 680, 754.  THERE HAS BEEN NO FURTHER CHANGE. 

FN2  WHETHER THE TAXABLE EVENT IS THE "TRANSFER INTER VIVOS," AS WE
SUGGESTED IN HELVERING V. HALLOCK, 309 U.S. 106, 111, SEE SHUKERT V.
ALLEN, 273 U.S. 545, 546, AND FIDELITY-PHILADELPHIA TRUST CO. V.
ROTHENSIES, 324 U.S. 108, 110-11, OR THE TRANSFER AT DEATH, AS NOW
SEEMS TO ME MORE PRECISE, SEEMS IMMATERIAL.  SEE INT. REV. CODE SEC.
810; DISSENT IN HELVERING V. ST. LOUIS TRUST CO., 296 U.S. 39, 46-47;
REINECKE V. NORTHERN TRUST CO., 278 U.S. 339, 347.  IT WAS SAID OF A
TRANSFER IN CONTEMPLATION OF DEATH, "IT IS THUS AN ENACTMENT IN AID OF,
AND AN INTEGRAL PART OF, THE LEGISLATIVE SCHEME OF TAXATION OF
TRANSFERS AT DEATH."  MILLIKEN V. UNITED STATES, 283 U.S. 15, 23;
HEINER V. DONNAN, 285 U.S. 312, 330, CF. DISSENT AT 334.  IN EITHER
CASE TRANSFER OF AN INTEREST IN PROPERTY INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT OR AFTER DEATH IS TAXED.  IF TAXED AS AN
EXCISE ON THE PRIVILEGE OF TRANSFER AT DEATH, THE TRANSFEREE HAS TAKEN
SUBJECT TO THE TAX.  INT. REV. CODE SEC. 827(B).  IT IS A MEANS OF
CHECKING TAX AVOIDANCE.  CF. MILLIKEN V. UNITED STATES, 283 U.S. 15,
20.  SEE HELVERING V. BULLARD, 303 U.S. 297, AN ESTATE TAX ON A TRUST
THAT RETAINED A LIFE ESTATE.  WE THERE SAID, PP. 301-2, "A FURTHER
VINDICATION OF THE EXACTION IS THE AUTHORITY OF CONGRESS TO TREAT AS
TESTAMENTARY, TRANSFERS WITH RESERVATION OF A POWER OR AN INTEREST IN
THE DONOR."  SEE FERNANDEZ V. WIENER, 326 U.S. 340, 352; CF. HEINER V.
DONNAN, 285 U.S. 312, 331-32. 

FN3  NATIONAL SAFE DEPOSIT CO. V. STEAD, 232 U.S. 58, 67. 

FN4  HELVERING V. HALLOCK, 309 U.S. 106; FIDELITY-PHILADELPHIA TRUST
CO. V. ROTHENSIES, 324 U.S. 108; COMMISSIONER V. ESTATE OF FIELD, 324
U.S. 113; GOLDSTONE V. UNITED STATES, 325 U.S. 687. 

FN5  SINCE THE STATE LAW DEFINES AND CREATES RIGHTS AND INTERESTS IN
PROPERTY AND THE FEDERAL TAXING STATUTES ONLY SAY WHICH OF THESE RIGHTS
AND INTERESTS CREATED BY STATE LAW SHALL BE TAXED, THE LAW OF ILLINOIS
CONTROLS THE CONSTRUCTION OF THIS TRUST.  HELVERING V. STUART, 317 U.S.
154, 161-63; BLAIR V. COMMISSIONER, 300 U.S. 5, 9-10. 

THE TRUSTEE IN THE SPIEGEL CASE COULD ACT ONLY IN THE INTEREST OF THE
BENEFICIARIES OF THE TRUST. 

IT IS WELL ESTABLISHED IN ILLINOIS AS IN OTHER JURISDICTIONS THAT A
TRUSTEE IN THE ABSENCE OF EXPRESS AUTHORITY CANNOT DEAL ON HIS OWN
BEHALF WITH ANY PART OF THE TRUST PROPERTY.  DONER V. PHOENIX JOINT
STOCK LAND BANK OF KANSAS CITY, 381 ILL. 106, 45 N.E.2D 20; KINNEY V.
LINDGREN, 373 ILL. 415, 26 N.E.2D 471; CITY OF CHICAGO V. TRIBUNE CO.,
248 ILL. 242, 93 N.E. 757; AND IN DETERMINING THE POWERS OF THE TRUSTEE
REFERENCE MUST BE HAD TO THE INTENTION OF THE GRANTOR AS MANIFESTED IN
THE WHOLE TRUST INSTRUMENT.  CROW V. CROW, 348 ILL. 241, 180 N.E. 877;
BEAR V. MILLIKIN TRUST CO., 336 ILL. 366, 168 N.E. 349; HARRIS TRUST &
SAVINGS BANK V. WANNER, 326 ILL. APP. 307, 61 N.E.2D 860.  EVEN THOUGH
A TRUSTEE HAS BEEN VESTED WITH FULL POWER AND DISCRETION AS TO THE
MANAGEMENT OF THE TRUST HE IS STILL SUBJECT TO THE CONTROL OF THE
EQUITY COURT, AND THIS DISCRETION CANNOT BE EXERCISED BY THE TRUSTEE SO
AS TO DEFEAT THE TRUST OR TO DEPRIVE THE CESTUI QUE TRUST OF ITS
BENEFITS.  MAGUIRE V. CITY OF MACOMB, 293 ILL, 441, 127 N.E. 682; JONES
V. JONES, 124 ILL. 254, 15 N.E. 751.  THIS RULE THAT THE TRUSTEE MUST
ADMINISTER THE TRUST SOLELY IN THE INTEREST OF THE CESTUI QUE TRUST HAS
THE SUPPORT OF BOTH REASON AND AUTHORITY.  SEE HELVERING V. STUART, 317
U.S. 154, 162-66; RESTATEMENT, TRUSTS SEC. 170; 2 SCOTT, TRUSTS, SEC.
187. 

FN6  THIS STATEMENT DOES NOT REFER TO THE ITEMS OF DEDUCTION OR
EXEMPTION COVERED BY INT. REV. CODE SEC. 812 BUT TO THE VALUE OF GIFTS
NOT COVERED BY SEC. 812 THAT ALSO ARE NOT COVERED BY SEC. 811. 

FN7  46 STAT. 1516. 

FN8  MAY V. HEINER, 281 U.S. 238; BURNET V. NORTHERN TRUST CO., 283
U.S. 782; MORSMAN V. BURNET, 283 U.S. 783; MCCORMICK V. BURNET, 283
U.S. 784. 

FN9  WHY "POSSESSION OR ENJOYMENT OF  ...  THE PROPERTY" WAS PUT IN
THE AMENDMENT TO THE SECTION I DO NOT KNOW.  IT READS AS IF CONGRESS
INTENDED TO MAKE IT CLEAR THAT THE POSSESSION OR ENJOYMENT OF THE
PROPERTY WAS A BASIS FOR TAXATION.  SUCH RESULT WOULD HAVE FOLLOWED
FROM THE ORIGINAL LANGUAGE.  THAT IS PROBABLY WHY NO CASES HAVE BEEN
CALLED TO OUR ATTENTION THAT HAVE TURNED ON THE USE OF THESE WORDS IN
THE AMENDMENT. 

FN10  74 CONG. REC. 7198-99. 

FN11  HELVERING V. STUART, 317 U.S. 154, 161-62: 

"WHEN CONGRESS FIXES A TAX ON THE POSSIBILITY OF THE REVESTING OF
PROPERTY OR THE DISTRIBUTION OF INCOME, THE 'NECESSARY IMPLICATION,' WE
THINK, IS THAT THE POSSIBILITY IS TO BE DETERMINED BY THE STATE LAW. 
GRANTEES UNDER DEEDS, WILLS AND TRUSTS, ALIKE, TAKE ACCORDING TO THE
RULE OF THE STATE LAW.  THE POWER TO TRANSFER OR DISTRIBUTE ASSETS OF A
TRUST IS ESSENTIALLY A MATTER OF LOCAL LAW.  ...  CONGRESS HAS SELECTED
AN EVENT, THAT IS THE RECEIPT OR DISTRIBUTIONS OF TRUST FUNDS BY OR TO
A GRANTOR, NORMALLY BROUGHT ABOUT BY LOCAL LAW, AND HAS DIRECTED A TAX
TO BE LEVIED IF THAT EVENT MAY OCCUR.  WHETHER THAT EVENT MAY OR MAY
NOT OCCUR DEPENDS UPON THE INTERPRETATION PLACED UPON THE TERMS OF THE
INSTRUMENT BY STATE LAW.  ONCE RIGHTS ARE OBTAINED BY LOCAL LAW,
WHATEVER THEY MAY BE CALLED, THESE RIGHTS ARE SUBJECT TO THE FEDERAL
DEFINITION OF TAXABILITY." 

FN12 THE ILLINOIS ANNOTATIONS TO THE RESTATEMENT OF THE LAW OF
TRUSTS, SEC. 411, SAYS THAT THE RULE OF THE RESTATEMENT "STATES THE
LAW," BUT NO CASE HAS BEEN FOUND WHERE THE TRUSTEE HOLDS THE CORPUS
UPON A RESULTING TRUST FOR THE SETTLOR BECAUSE OF THE FAILURE OF THE
INTER VIVOS TRUST.  SEE RESTATEMENT, TRUSTS, ILL. ANNO.  SEC.  411,
COMMENT (B). 

IN VIEW OF THE UNCERTAINTIES SURROUNDING THE THEORY THAT THE BURDEN
OF PROOF IS ON THE TAXPAYER TO SHOW THAT THE COMMISSIONER OF INTERNAL
REVENUE IS IN ERROR AS TO THE LAW APPLICABLE TO AN ASSESSMENT OF A
DEFICIENCY, I DO NOT DEPEND UPON THAT THEORY TO SUPPORT THE JUDGMENT OF
THE COURT OF APPEALS.  SEE HELVERING V. LEONARD, 310 U.S. 80; HELVERING
V. FITCH, 309 U.S. 149; CF. HELVERING V. STUART, 317 U.S. 154, DISSENT,
172; 2 PAUL, FEDERAL ESTATE AND GIFT TAXATION, SEC. 14.47, N. 4 AND
1946 SUPP.; 9 MERTENS, LAW OF FEDERAL INCOME TAXATION 285-86. 

FN13  IN CHATER V. CARTER, 238 U.S. 572, THIS COURT CONSIDERED THE
FOLLOWING LANGUAGE WHEREBY AN INTER VIVOS TRUST WAS CREATED.  "THE
TRUST FOR LOTTIE LEE IS TO CAUSE THE DIVIDENDS TO BE PAID TO HER DURING
THE THREE YEARS FROM JANUARY 1ST NEXT AND IF SHE SHALL THEN BE LIVING
TO TRANSFER THE SHARES TO HER."  THE CESTUI QUE TRUST DIED BEFORE THE
EXPIRATION OF THE THREE-YEAR PERIOD AND THE QUESTION AROSE AS TO
WHETHER THE HEIR OF THE CESTUI QUE TRUST OR THE ESTATE OF THE SETTLOR
WAS TO RECEIVE THE CORPUS.  THIS COURT CONSIDERED IT UNNECESSARY "TO
STRAIN THE MEANING OF WORDS, AS IS SOMETIMES DONE TO AVOID INTESTACY
WHEN WILLS ARE TO BE CONSTRUED."  IT CONCLUDED THAT THE TRUST HAVING
FAILED, THE TRUSTEE MUST REDELIVER THE CORPUS "TO HIM FROM WHOM IT
CAME.  IN OTHER WORDS, THERE IS A RESULTING TRUST FOR THE DONOR." 
MR. JUSTICE FRANKFURTER, DISSENTING.* 

*(THIS IS ALSO A DISSENT FROM ESTATE OF SPIEGEL V. COMMISSIONER,
POST, P. 701.) 

BY FITTING TOGETHER MY AGREEMENT WITH PORTIONS OF THE DISSENTING
CONCURRENCE AND MY DISAGREEMENT WITH A PART OF THE COMPREHENSIVE
DISSENTING OPINIONS OF MY BROTHER BURTON, I COULD INDICATE,
SUBSTANTIALLY, MY VIEWS OF THESE CASES.  BUT SUCH PIECING TOGETHER
WOULD MAKE A JOSEPH'S COAT.  THEREFORE, EVEN AT THE RISK OF SOME
REPETITION OF WHAT HAS BEEN SAID BY OTHERS, A SELF-CONTAINED STATEMENT
ON THE BASIC ISSUES OF THESE CASES WILL MAKE FOR CLARITY.  PARTICULARLY
IS THIS DESIRABLE WHERE DISHARMONY OF VIEWS SUPPORTS A COMMON RESULT -
A RESULT THE UPSETTING OF WHICH BY CONGRESS IS ALMOST INVITED. 

        I. 

IN THE SPIEGEL CASE, NO. 3, THE DECEDENT MADE A SETTLEMENT BY THE
TERMS OF WHICH HE RESERVED NO INTEREST FOR HIMSELF, AND IT IS NOT
SUGGESTED THAT THE FORM OF THE SETTLEMENT DISGUISED AN ATTEMPTED
EVASION OF THE ESTATETAX LAW.  THE CORPUS OF THE DECEDENT'S ESTATE IS
FOUND TO BE SUBJECT TO THE ESTATE TAX ON THE BASIS OF HELVERING V.
HALLOCK, 309 U.S. 106, AS SUPPLEMENTED BY FIDELITY-PHILADELPHIA TRUST
CO. V. ROTHENSIES, 324 U.S. 108, COMMISSIONER V. ESTATE OF FIELD, 324
U.S. 113, AND GOLDSTONE V. UNITED STATES, 325 U.S. 687.  ON THAT BASIS
IT IS NOW DECIDED THAT IF THERE IS A POSSIBILITY, DUE TO THE TERMS OF
THE INSTRUMENT OR BY OPERATION OF LAW, HOWEVER REMOTE, THAT SETTLED
PROPERTY MAY RETURN TO THE SETTLOR, THE ENTIRE TRUST PROPERTY MUST BE
INCLUDED IN THE GROSS ESTATE FOR PURPOSES OF THE FEDERAL ESTATE TAX. 
THUS, UNDER THE COURT'S DECISION TAX LIABILITY MAY BE INCURRED BY THE
DISCOVERY OF A GOSSAMER THREAD OF POSSESSION OR ENJOYMENT, WHICH HAS NO
VALUE.  NEVERTHELESS THE ENTIRE TRUST CORPUS IS INCLUDED IN THE GROSS
ESTATE AND TAXED AS IF THE SETTLOR REALLY HAD POSSESSION OR ENJOYMENT
OF THE PROPERTY.  SUCH A RESULT NOT ONLY CREATES UNANTICIPATED HARDSHIP
FOR TAXPAYERS; IT IS ALSO AN UNREALISTIC INTERPRETATION OF SEC. 811(C)
OF THE INTERNAL REVENUE CODE.  SINCE SUCH AN UNREALISTIC INTERPRETATION
IS NOT A JUDICIAL DUTY WHEREAS ITS AVOIDANCE IS, I AM COMPELLED TO
CONCLUDE THAT SPIEGEL DID NOT TRANSFER AN INTEREST IN PROPERTY
"INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER DEATH"
WITHIN THE MEANING OF SEC. 811(C) AND THAT THE TRUST CORPUS SETTLED BY
HIM IN HIS LIFETIME WAS NO PART OF HIS GROSS ESTATE. 

THIS CASE IS BROUGHT UNDER THE DECISIONS OF HALLOCK AND THE THREE
SUBSEQUENT CASES ONLY BY A DISREGARD OF THE VITAL DIFFERENCES BETWEEN
THE INTEREST CREATED BY THE SPIEGEL INDENTURE AND THE ARRANGEMENTS
BEFORE THIS COURT IN THE FOUR CASES UPON WHICH RELIANCE IS PLACED. 

1.  IN 1920, SPIEGEL TRANSFERRED SECURITIES TO HIMSELF AND ANOTHER
PERSON AS CO-TRUSTEES, THE INCOME TO BE PAID EQUALLY TO SPIEGEL'S THREE
NAMED CHILDREN DURING HIS LIFETIME.  IF ANY OF THE CHILDREN DIED BEFORE
THE SETTLOR, THE SHARE OF THAT CHILD WAS TO GO TO HIS ISSUE, IF ANY,
OTHERWISE TO THE SETTLOR'S OTHER CHILDREN.  THE INSTRUMENT PROVIDED
FURTHER THAT UPON THE SETTLOR'S DEATH THE CORPUS, TOGETHER WITH ANY
ACCUMULATED INCOME, SHOULD BE DIVIDED "EQUALLY AMONG MY SAID THREE (3)
CHILDREN, AND IF ANY OF MY SAID CHILDREN SHALL HAVE DIED, LEAVING ANY
CHILD OR CHILDREN SURVIVING, THEN THE CHILD OR CHILDREN OF SUCH
DECEASED CHILD OF MINE SHALL RECEIVE THE SHARE" OF THE TRUST TO WHICH
HIS OR HER PARENT WOULD HAVE BEEN ENTITLED.  IF ANY OF THE SETTLOR'S
THREE CHILDREN DIED WITHOUT LEAVING SURVIVING CHILDREN, THAT SHARE WAS
TO GO TO THE TWO REMAINING CHILDREN.  WHEN THE TRUST WAS ESTABLISHED
SPIEGEL WAS 47 YEARS OLD, AND HIS THREE CHILDREN WERE AGED 25, 15, AND
13.  AT HIS DEATH TWENTY YEARS LATER THE CHILDREN WERE STILL LIVING AND
THERE WERE THREE GRANDCHILDREN.  UPON THE ASSUMPTION THAT THERE WOULD
HAVE BEEN A REVERTER TO SPIEGEL BY OPERATION OF ILLINOIS LAW IN THE
EVENT THAT ALL HIS CHILDREN PREDECEASED HIM WITHOUT LEAVING "SURVIVING
CHILDREN," THE VALUE OF THIS REMOTE CONTINGENCY WAS DETERMINED
MATHEMATICALLY TO BE WORTH $4,000.  FN1 

2.  IN THE HELVERING V. HALLOCK SERIES, SUPRA, EACH OF THE SEVERAL
DONORS CREATED A TRUST GIVING AN ESTATE TO ANOTHER BUT PROVIDING THAT
THE PROPERTY WOULD REVERT TO THE DONOR IF THE DONEE PREDECEASED HIM. 
THE DONOR'S DEATH IN EACH CASE WAS THE OPERATIVE FACT WHICH ESTABLISHED
FINAL AND COMPLETE DOMINION AS BETWEEN THE DONOR AND THE DONEE
ACCORDING TO THE TERMS OF THE INSTRUMENTS.  UNTIL THE FORMER'S DEATH
THE DONOR WAS, AS IT WERE, COMPETING WITH THE DONEE FOR THE ULTIMATE
USE AND ENJOYMENT OF THE PROPERTY.  WE THERE HELD THAT THE PARTICULAR
FORM OF CONVEYANCING WORDS IS IMMATERIAL IF THE NET EFFECT IS THAT
TRANSFERRED PROPERTY WILL REVEST IN A DONOR WHO SURVIVES THE DONEE. 
EXCEPT ON A CONTINGENCY OF ILLINOIS LAW SO REMOTE AS TO BE NONEXISTENT
IN THE PRACTICAL AFFAIRS OF LIFE, THE PROPERTY WOULD NEVER REVERT TO
SPIEGEL.  HIS DEATH NO DOUBT WOULD FINALLY DETERMINE WHICH CHILDREN OR
GRANDCHILDREN WOULD HAVE THE ULTIMATE ENJOYMENT OF THE TRUST CORPUS
SETTLED UPON HIS CHILDREN, BUT IN THE REAL WORLD THE PROPERTY COULD
NEVER COME BACK TO HIM AS A WINDFALL.  HIS DEATH DID NOT DETERMINE
CONTINGENCIES FROM WHICH HE COULD BENEFIT.  HIS DEATH MERELY
DEFINITIVELY CLOSED THE CLASS OF BENEFICIARIES AND FIXED THE QUANTUM OF
EACH CHILD'S SHARE. 

CONTRARY TO THE SUGGESTION IN THE CONCURRING OPINION IN THIS CASE - A
SUGGESTION ACCEPTED BY THE MAJORITY OPINION - THE COURT OF APPEALS DID
NOT FIND THAT SPIEGEL RETAINED AN INTEREST BECAUSE HE HAD NOT PROVIDED
FOR ALL CONTINGENCIES.  IT INCLUDED THE SETTLED PROPERTY IN THE GROSS
ESTATE ON THE THEORY THAT EVERY TRUST CARRIES AS IT WERE THE SEED OF
ITS OWN DESTRUCTION THROUGH FAILURE OF THE TRUST, THEREBY GENERATING A
RESULTING TRUST.  IT SAID, "IF NONE OF THE BENEFICIARIES SURVIVED THE
SETTLOR, AND THAT WAS A POSSIBILITY, THEN THE TRUST FAILED, AND THE
TRUSTEES WOULD HOLD THE BARE NAKED TITLE TO THE CORPUS AS RESULTING
TRUSTEES FOR THE SETTLOR."  159 F.2D AT 259.  BUT THIS MODE OF ARGUMENT
WOULD HAVE SWEPT INTO THE GROSS ESTATE A CONVEYANCE IN TRUST IN FEE TO
ANY OF SPIEGEL'S CHILDREN IN 1920 SINCE THE FAILURE OF THE TRUST FOR
ANY CONCEIVABLE REASON PRESUMABLY WOULD NOT TURN THE TRUST PROPERTY
INTO AN OUTRIGHT GIFT TO THE TRUSTEES. 

THE TRUST INDENTURE IS A COMPREHENSIVE ARRANGEMENT FOR THE CHILDREN
AND THEIR OFFSPRING TO TAKE CARE OF THE CONTINGENCIES OF MORTALITY
AMONG THE CHILDREN AND THEIR OFFSPRING.  PROVISIONS SUCH AS WERE MADE
IN THE SPIEGEL CASE ARE PRECISELY THE KIND OF ARRANGEMENT MADE BY AN
ANCESTOR FOR HIS CHILDREN AND CHILDREN'S CHILDREN BY WHICH HE SETTLES
PROPERTY UPON THEM WITH A VIEW TO THE CONTINGENCIES OF SUCCESSIVE
GENERATIONS AND RESERVES NO INTEREST IN HIMSELF.  NOTHING WAS RESERVED
IN THE SETTLOR EXCEPT WHAT FEUDAL NOTIONS ABOUT SEISIN MAY HAVE
RESERVED.  BUT FEUDAL NOTIONS OF SEISIN ARE NO MORE PERTINENT IN TAX
CASES WHEN THEY LEAD TO IMPOSITION OF AN ESTATE TAX THAN WHEN THEY LEAD
AWAY FROM IT.  AT THE VERY BASIS OF THE DECISION OF THE HALLOCK CASE
WAS THE INSISTENCE THAT THESE "UNWITTY DIVERSITIES OF THE LAW OF
PROPERTY (DERIVED) FROM MEDIEVAL CONCEPTS AS TO THE NECESSITY OF A
CONTINUOUS SEISIN.  ...  ARE PECULIARLY IRRELEVANT IN THE APPLICATION
OF TAX MEASURES NOW SO LARGELY DIRECTED TOWARD INTANGIBLE WEALTH." 
HELVERING V. HALLOCK, SUPRA AT P. 118.  THE METAPHYSICAL REMOTENESS OF
THE PRESENT SETTLOR'S INTEREST AT THE TIME THE TRUST WAS CREATED IS
CLEARLY SHOWN BY THE FACT THAT IT DEPENDED UPON THE HIGHLY UNLIKELY
EVENT THAT ALL THE CHILDREN IN EXISTENCE AT THE TIME OF THE CONVEYANCE
WOULD DIE AND WOULD DIE CHILDLESS.  EVEN THIS REMOTE POSSIBILITY
EVAPORATED LONG BEFORE THE SETTLOR DIED.  AND CERTAINLY THE ONLY
TENABLE CONSTRUCTION OF THE STATUTE IS THAT NOT ONLY MUST THERE HAVE
BEEN A TRANSFER OF THE SORT DESIGNATED IN SEC. 811(C) BUT THE SETTLOR'S
INTEREST MUST ALSO PERSIST UP TO THE TIME OF HIS DEATH.  CF. ESTATE OF
MILLER, 40 B.T.A. 138; SEE GRISWOLD, CASES AND MATERIALS ON FEDERAL
TAXATION 145(1940). 

3.  THE THREE LATER DECISIONS INVOKED BY THE COURT BEAR NO RESEMBLANCE
TO THE SITUATION PRESENTED BY THE SPIEGEL CASE AND GIVE NO
JUSTIFICATION FOR THE RULING NOW MADE.  IN FIDELITY-PHILADELPHIA TRUST
CO. V. ROTHENSIES, SUPRA, THE SETTLEMENT PROVIDED FOR A LIFE ESTATE IN
THE SETTLOR, LIFE ESTATES IN THE TWO DAUGHTERS, AND A REVERSION IN THE
SETTLOR UNLESS THE DAUGHTERS HAD ISSUE.  SEE BRIEF FOR RESPONDENT, P.
8, FIDELITY-PHILADELPHIA TRUST CO. V. ROTHENSIES, SUPRA; GOLDSTONE V.
UNITED STATES, 325 U.S. 687, 693, N. 3.  THE BIRTH OF THE GRANDCHILDREN
WHICH CUT OFF THE SETTLOR'S INTEREST DID NOT OCCUR UNTIL AFTER THE
DEATH OF THE SETTLOR.  SINCE, THEREFORE, THE TAXABILITY IS TO BE
DETERMINED AT DEATH, IT FOLLOWED THAT THE VALUE OF THE TRUST PROPERTY
WAS TO BE INCLUDED IN THE GROSS ESTATE.  THE SOLE CONTROVERSY WAS
WHETHER DEDUCTION SHOULD BE ALLOWED FOR THE MOTHER'S AND DAUGHTERS'
LIFE INTERESTS AND FOR A CONTINGENT GIFT TO UNBORN CHILDREN.  FN2
LIKEWISE IN THE ESTATE OF FIELD CASE IT WAS CONCEDED THAT THE SETTLOR
RETAINED UNTIL DEATH A SUBSTANTIAL INTEREST - THE RIGHT TO REDUCE OR
CANCEL THE INTEREST OF LIFE TENANTS AND A REVERSION OF THE CORPUS TO
HIMSELF IF HE SURVIVED THESE TENANTS.  IN THE ESTATE OF FIELD CASE TOO
THE CONTROVERSY CONCERNED THE BASIS ON WHICH THE ESTATE WAS TO BE
ASSESSED - WHETHER THE VALUE OF THE LIFE TENANCIES WAS TO BE DEDUCTED
FROM THE CORPUS.  THE GOLDSTONE CASE WAS IN EFFECT ANOTHER HALLOCK
CASE, THE INSURANCE BEING PAYABLE UPON THE DONOR'S DEATH TO THE WIFE
BUT WITH A RESERVED RIGHT IN THE DONOR IF SHE PREDECEASED HIM. 

THE BIRTH OF GRANDCHILDREN IN SPIEGEL'S LIFETIME DESTROYS ALL
RESEMBLANCE BETWEEN HIS CASE AND THE CASES JUST DISCUSSED.  ON THE
LEAST FAVORABLE READING OF THE TRUST INSTRUMENT - WHEREBY THE
GRANDCHILDREN WOULD HAVE TO SURVIVE NOT ONLY THEIR PARENTS BUT ALSO THE
SETTLOR - THE POSSIBILITY THAT THE SETTLOR WOULD REGAIN THE PROPERTY
WAS EXTREMELY TENUOUS.  READING THE TRUST INSTRUMENT IN A CUSTOMARY AND
NOT IN A HOSTILE SPIRIT, THE GRANDCHILDREN WOULD MERELY HAVE TO SURVIVE
THEIR PARENTS AND NOT THE SETTLOR FOR THEIR INTEREST TO BECOME
INDEFEASIBLE.  THUS THE REMOTE CONTINGENCY OF REACQUISITION BY THE
SETTLOR VANISHES.  FN3 

TO BE SURE, IN BOTH THE FIDELITY-PHILADELPHIA TRUST CO. AND THE
ESTATE OF FIELD CASES THERE IS GENERALITY OF LANGUAGE ABOUT
INDIFFERENCE REGARDING THE REMOTENESS OR UNCERTAINTY OF THE DECEDENT'S
"REVERSIONARY INTEREST."  BUT IN BOTH CASES AS WE HAVE SEEN THERE WAS
NO QUESTION THAT THE TRUST INSTRUMENT ITSELF PURPOSELY RESERVED IN THE
SETTLOR AN INTEREST WHICH IN ITS CONTEXT WAS SUBSTANTIAL.  THE TALK OF
UNCERTAINTY AND REMOTENESS WAS MERELY A WAY OF INDICATING THAT WHERE
THE SETTLOR HIMSELF HAD RESERVED AN INTEREST TERMINABLE ONLY BY HIS
DEATH, IT WAS NOT FOR THE LAW TO MAKE NICE CALCULATIONS AS TO THE
CHANCE HE WAS GIVING HIMSELF TO REGAIN THE PROPERTY.  IN THESE TWO
CASES THE SETTLOR THOUGHT THE RESERVED INTEREST HAD SIGNIFICANCE AND OF
COURSE THE LAW GAVE THAT SIGNIFICANCE MONETARY VALUE.  SPIEGEL
CONTRARIWISE DESIGNED TO RETAIN NOTHING AND HIS ESTATE SHOULD NOT BE
HELD TO INCLUDE PROPERTY OF WHICH HE DIVESTED HIMSELF MANY YEARS BEFORE
HIS DEATH. 

4.  BUT EVEN THE GOSSAMER THREAD WHICH BINDS THE MAJORITY TOGETHER IN
SUBJECTING THE SPIEGEL TRUST CORPUS TO AN ESTATE TAX IS VISIBLE ONLY TO
THEIR MIND'S EYE.  THE GOSSAMER THREAD IS THE REMOTE POSSIBILITY THAT
AT THE TIME OF SPIEGEL'S DEATH THERE WOULD BE A REVERTER OF THE TRUST
PROPERTY TO HIM.  BUT THAT POSSIBILITY DEPENDS ENTIRELY UPON ITS
RECOGNITION BY THE LAW OF ILLINOIS.  IT IS AT BEST A DUBIOUS ASSUMPTION
THAT SUCH A REVERTER EXISTS UNDER ILLINOIS LAW.  MY BROTHER BURTON'S
ARGUMENT IN DISPROOF IS NOT LIGHTLY TO BE DISMISSED.  AT BEST, HOWEVER,
THIS COURT'S GUESS THAT ILLINOIS LAW WOULD ENFORCE SUCH A REVERTER MAY
BE DISPLACED THE DAY AFTER TOMORROW BY THE ILLINOIS SUPREME COURT'S
AUTHORITATIVE REJECTION OF THE GUESS.  IF TAX LIABILITY IS TO HANG BY A
GOSSAMER THREAD, THE COURT OUGHT TO BE SURE THAT THE THREAD IS THERE. 
SINCE ONLY THE COURTS OF ILLINOIS CAN DEFINITIVELY INFORM US ABOUT
THIS, IT WOULD SEEM TO ME COMMON SENSE TO SECURE AN ADJUDICATION FROM
THEM IF SOME APPROPRIATE PROCEDURE OF ILLINOIS, LIKE THE DECLARATORY
JUDGMENT ACT, IS AVAILABLE.  FN4  TO JUSTIFY AT ALL THE COURT'S THEORY,
THE RATIONAL MODE OF DISPOSING OF THE CASE WOULD BE TO REMAND IT TO THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN ORDER TO ALLOW THAT COURT
TO DECIDE WHETHER IN FACT A PROCEDURE IS AVAILABLE UNDER ILLINOIS LAW
FOR A RULING UPON THE POINT OF ILLINOIS LAW WHICH IS MADE THE BASIS OF
THIS COURT'S DECISION, SINCE THE CORRECTNESS OF THIS COURT'S ASSUMPTION
IS AT BEST DOUBTFUL.  CF. THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S.
478, 483-484; SPECTOR MOTOR SERVICE, INC. V. MCLAUGHLIN, 323 U.S. 101. 
A DETERMINATION SO MADE WOULD CONCLUSIVELY FIX THE INTERESTS ACTUALLY
HELD BY THE PARTIES TO THE INSTRUMENT AND AT THE SAME TIME LEAVE TO THE
FEDERAL COURTS THE TAX CONSEQUENCES OF THESE INTERESTS.  BLAIR V.
COMMISSIONER, 300 U.S. 5, 9-14; FREULER V. HELVERING, 291 U.S. 35. 

   II. 

THE REACH OF THE CHURCH CASE, NO. 5, EXTENDS FAR BEYOND THE PROPER
CONSTRUCTION OF THE TAX STATUTE.  FN5  IT CONCERNS THE APPROPRIATE
ATTITUDE OF THIS COURT TOWARD A SERIES OF LONG-STANDING UNANIMOUS
DECISIONS BY THIS COURT.  MORE THAN THAT, IT INVOLVES THE RESPECT OWED
BY THIS COURT TO THE EXPRESSED INTENTION OF CONGRESS. 

THE SHORT OF THE MATTER IS THIS.  MORE THAN EIGHTEEN YEARS AGO THIS
COURT BY A UNANIMOUS RULING FOUND THAT CONGRESS DID NOT MEAN TO SUBJECT
A TRUST CORPUS TRANSFERRED BY A DECEDENT IN HIS LIFETIME TO THE ESTATE
TAX IMPOSED BY THE REVENUE ACT OF 1918 MERELY BECAUSE THE SETTLOR HAD
RESERVED THE INCOME TO HIMSELF FOR LIFE.  MAY V. HEINER, 281 U.S. 238. 
AT THE EARLIEST OPPORTUNITY, IN THREE CASES HAVING MINOR VARIATIONS BUT
PRESENTING THE SAME ISSUE, THE TREASURY INVITED THE COURT'S
RECONSIDERATION OF ITS DECISION.  BUT THE COURT, AFTER HAVING HAD THE
BENEFIT OF COMPREHENSIVE BRIEFS AND ARGUMENTS BY COUNSEL SPECIALLY
COMPETENT IN FISCAL MATTERS, UNANIMOUSLY ADHERED TO ITS RULING IN MAY
V. HEINER.  BURNET V. NORTHERN TRUST CO., 283 U.S. 782; MORSMAN V.
BURNET, 283 U.S. 783; MCCORMICK V. BURNET, 283 U.S. 784.  THESE
DECISIONS, NOW CAST ASIDE, WERE SHARED IN BY JUDGES OF WHOM IT MUST BE
SAID WITHOUT INVIDIOUSNESS THAT THEY WERE MOST ALERT IN RECOGNIZING THE
PUBLIC INTEREST AND RESOURCEFUL IN PROTECTING IT.  THERE WERE BRAVE MEN
BEFORE AGAMEMNON.  IF SUCH A SERIES OF DECISIONS, VIEWED IN ALL THEIR
CIRCUMSTANCES, AS THAT WHICH ESTABLISHED THE RULE IN MAY V. HEINER, IS
TO HAVE ONLY CONTEMPORANEOUS VALUE, THE WISEST DECISIONS OF THE PRESENT
COURT ARE ASSURED NO GREATER PERMANENCE. 

IN FAIRNESS, ATTENTION SHOULD BE CALLED TO THE FACT THAT IN JOINING
THE COURT'S DECISIONS LAYING DOWN, AND ADHERING TO, THE MAY V. HEINER
RULING, MR. CHIEF JUSTICE HUGHES, MR. JUSTICE HOLMES, MR. JUSTICE
BRANDEIS, AND MR. JUSTICE STONE WERE NOT DENIED ARGUMENT WHICH THE
GOVERNMENT HAS NOW URGED UPON US.  BUT IT IS ALSO FAIR TO THE
GOVERNMENT TO POINT OUT THAT IT HAS NOT OF ITS OWN ACCORD ASKED THIS
COURT TO OVERRULE THE FOUR DECISIONS RENDERED EIGHTEEN YEARS AGO.  IT
WAS ONLY AFTER THE CASE WAS ORDERED FOR REARGUMENT AND A SERIES OF
QUESTIONS WAS FORMULATED BY THE COURT WHICH SHED DOUBT UPON THE
CONTINUED VITALITY OF MAY V. HEINER, THAT THE GOVERNMENT SUGGESTED THAT
THE DECISION BE CAST INTO LIMBO.  68 SUP. CT. 1524.  NO DOUBT STARE
DECISIS IS NOT "A UNIVERSAL, INEXORABLE COMMAND."  BRANDEIS, J.,
DISSENTING IN WASHINGTON V. DAWSON & CO., 264 U.S. 219, 238.  BUT
NEITHER IS IT A DOCTRINE OF THE DEAD HAND.  IN THE VERY HALLOCK CASE
RELIED UPON SO HEAVILY IN THESE CASES THE COURT SAID, "WE RECOGNIZE
THAT STARE DECISIS EMBODIES AN IMPORTANT SOCIAL POLICY.  IT REPRESENTS
AN ELEMENT OF CONTINUITY IN LAW, AND IS ROOTED IN THE PSYCHOLOGIC NEED
TO SATISFY REASONABLE EXPECTATIONS."  309 U.S. AT 119.  AND ONE OF THE
MOST RECENT RELIANCES ON STARE DECISIS FOR DECISION WAS EXPRESSED WITH
SUCH FIRMNESS AS TO MANIFEST ALLEGIANCE TO PRINCIPLE, NOT UTILIZATION
OF AN AD HOC ARGUMENT.  FN6  WE ARE NOT DEALING HERE WITH A RULING
WHICH CRAMPS THE POWER OF GOVERNMENT; WE ARE NOT DEALING WITH A
CONSTITUTIONAL ADJUDICATION WHICH TIME AND EXPERIENCE HAVE PROVED A
PAROCHIAL INSTEAD OF A SPACIOUS VIEW OF THE CONSTITUTION AND WHICH THUS
CALLS FOR SELF-CORRECTION BY THE COURT WITHOUT WAITING FOR THE LEADEN
FOOTED PROCESS OF CONSTITUTIONAL AMENDMENT.  WE ARE DEALING WITH AN
EXERCISE OF THIS COURT'S DUTY TO CONSTRUE WHAT CONGRESS HAS ENACTED
WITH AMPLE POWERS ON ITS PART QUICKLY AND COMPLETELY TO CORRECT
MISCONSTRUCTION. 

THOSE POWERS WERE PROMPTLY INVOKED IN THIS CASE.  BECAUSE THE
TREASURY WAS DISSATISFIED WITH THE MEANING GIVEN BY THIS COURT TO THE
ESTATE-TAX PROVISION, THE VERY NEXT DAY AFTER THE THREE DECISIONS
REAFFIRMING MAY V. HEINER WERE HANDED DOWN, THE TREASURY APPEALED TO
CONGRESS FOR RELIEF AND CONGRESS GAVE RELIEF.  THE TRUE SIGNIFICANCE OF
TODAY'S DECISION IN THE CHURCH CASE IS NOT TO BE FOUND IN THE COURT'S
FAILURE TO RESPECT STARE DECISIS.  THE EXTENT TO WHICH JUDGES SHOULD
FEEL IN DUTY BOUND NOT TO INNOVATE IS A PERENNIAL PROBLEM, AND THE PULL
OF THE PAST IS DIFFERENT AMONG DIFFERENT JUDGES AS IT IS IN THE SAME
JUDGE ABOUT DIFFERENT ASPECTS OF THE PAST.  WE ARE OBLIGATED, HOWEVER,
TO ENFORCE WHAT IS WITHIN THE POWER OF CONGRESS TO DECLARE.  INEVITABLE
DIFFICULTIES ARISE WHEN CONGRESS HAS NOT MADE CLEAR ITS PURPOSE, BUT
WHEN THAT PURPOSE IS MADE MANIFEST IN A MANNER THAT LEAVES NO DOUBT
ACCORDING TO THE ORDINARY MEANING OF ENGLISH SPEECH, THIS COURT, IN
DISREGARDING IT, IS DISREGARDING THE LIMITS OF THE JUDICIAL FUNCTION
WHICH WE ALL PROFESS TO OBSERVE. 

THE TREASURY NO DOUBT WAS DEEPLY CONCERNED OVER THE EMPHATIC
REAFFIRMATION OF MAY V. HEINER.  THE RELIEF SOUGHT FROM CONGRESS WAS
FORMULATED BY THE FISCAL AND LEGAL EXPERT WHO HAD THAT VERY DAY FAILED
IN PERSUADING THIS COURT TO OVERRULE MAY V. HEINER.  WHAT RELIEF DID
THE TREASURY SEEK FROM CONGRESS?  DID THE SECRETARY OF THE TREASURY ASK
CONGRESS TO REWRITE SEC. 302(C) OF THE REVENUE ACT OF 1926, NOW SEC.
811(C) OF THE INTERNAL REVENUE CODE, SO AS TO STERILIZE MAY V. HEINER? 
CERTAINLY NOT.  NOT ONE WORD WAS ALTERED OF THE LANGUAGE OF THE
PROVISION WHICH THIS COURT FELT COMPELLED TO CONSTRUE AS IT DID IN MAY
V. HEINER.  WHAT THE TREASURY PROPOSED AND WHAT CONGRESS GRANTED WAS A
QUALIFYING ADDITION TO THE STATUTE AS CONSTRUED IN MAY V. HEINER
WHEREBY TRUST SETTLEMENTS RESERVING A LIFE INTEREST IN THE SETTLOR WERE
TO BE INCLUDED IN A DECEDENT'S GROSS ESTATE, BUT ONLY IN THE CASE OF
SETTLEMENTS MADE AFTER THIS QUALIFICATION BECAME OPERATIVE, THAT IS,
AFTER MARCH 3, 1931.  SUCH, IN THE LIGHT OF THE LEGISLATIVE HISTORY,
WAS THE INESCAPABLE MEANING OF WHAT CONGRESS DID, AND THE ONLY THING IT
DID, TO QUALIFY THE READING WHICH THIS COURT FOUR TIMES FELT
CONSTRAINED TO PLACE UPON THE MANDATE OF CONGRESS IN THE IMPOSITION OF
THE ESTATE TAX.  THE HISTORY IS RECOUNTED IN HASSETT V. WELCH, 303 U.S.
303, AGAIN WITHOUT A DISSENTING VOICE.  THIS HISTORY IS SO CRUCIAL TO
THE EXERCISE OF THE JUDICIAL PROCESS IN THIS CASE, THAT IT BEARS
REPETITION. 

WHEN THE JOINT RESOLUTION OF MARCH 3, 1931, WAS ADOPTED, IT WAS CLEAR
THAT IT WAS TO BE ONLY OF PROSPECTIVE EFFECT.  ITS SPONSORS
SPECIFICALLY DECLARED: 

"ENTIRELY APART FROM THE REFUNDS THAT MAY BE EXPECTED TO RESULT, IT
IS TO BE ANTICIPATED THAT MANY PERSONS WILL PROCEED TO EXECUTE TRUSTS
OR OTHER VARIETIES OF TRANSFERS UNDER WHICH THEY WILL BE ENABLED TO
ESCAPE THE ESTATE TAX UPON THEIR PROPERTY.  IT IS OF THE GREATEST
IMPORTANCE THEREFORE THAT THIS SITUATION BE CORRECTED AND THAT THIS
OBVIOUS OPPORTUNITY FOR TAX AVOIDANCE BE REMOVED.  IT IS FOR THAT
PURPOSE THAT THE JOINT RESOLUTION IS PROPOSED."  74 CONG. REC. 7198 AND
7078. 

AND THERE WAS GOOD REASON FOR NOT MAKING IT RETROACTIVE: 

"WE DID NOT MAKE IT RETROACTIVE FOR THE REASON THAT WE WERE AFRAID
THAT THE SENATE WOULD NOT AGREE TO IT.  BUT I DO HOPE THAT WHEN THIS
MATTER IS CONSIDERED IN THE SEVENTY-SECOND CONGRESS WE MAY BE ABLE TO
PASS A BILL THAT WILL MAKE IT RETROACTIVE."  74 CONG. REC. 7199. 

THESE STATEMENTS ON THE FLOOR BY THOSE IN CHARGE OF THE RESOLUTION
ARE CONTROLLING, AS MUCH AS THOUGH THEY HAD BEEN SUBMITTED IN A
COMMITTEE REPORT, FOR THEY WERE THE AUTHORITATIVE EXPLANATION OF THE
RESOLUTION'S PURPOSE AND MEANING.  IN FACT, REPRESENTATIVE SCHAFER OF
WISCONSIN HAD STATED THAT UNLESS THE SPONSORS EXPLAINED THE BILL HE
WOULD OBJECT, THUS PREVENTING ITS ACCEPTANCE AS A RESOLUTION.  74 CONG.
REC. 7198. 

WHEN THE SECTION WAS REENACTED BY THE 72D CONGRESS AS SEC. 803(A) OF
THE REVENUE ACT OF 1932, IT REMAINED IN THE PRE-MAY V. HEINER LANGUAGE
WITH THE JOINT RESOLUTION OF MARCH 3, 1931, ADDED IN SLIGHTLY DIFFERENT
PHRASING.  47 STAT. 279.  THIS SECTION WAS INTERPRETED IN 1938 BY A
UNANIMOUS COURT AS NOT APPLYING TO A RESERVED LIFE ESTATE CREATED IN
1924.  HASSETT V. WELCH, 303 U.S. 303.  THE BRIEFS FILED BY THE
GOVERNMENT IN THAT CASE AGAIN CONTAINED MUCH OF THE SAME DATA NOW FOUND
TO DEMAND A CONTRARY RESULT.  FN7  ON THE SAME DAY THIS COURT ALSO
DECIDED HELVERING V. BULLARD, 303 U.S. 297, WHICH HELD THE JOINT
RESOLUTION APPLICABLE TO RESERVED LIFE ESTATES CREATED AFTER THE
PASSAGE OF THE RESOLUTION.  IT QUOTED THE SAME LANGUAGE FROM MATTER OF
KEENEY, 194 N.Y. 281, 287, NOW QUOTED BY THE MAJORITY, THUS INDICATING
THAT IT APPRECIATED THE TAX-AVOIDANCE PROBLEM AND WOULD HAVE
INTERPRETED SEC. 803(A) RETROACTIVELY HAD CONGRESS INDICATED THAT IT
INTENDED TO TAX RESERVED LIFE ESTATES CREATED BEFORE MARCH 3, 1931. 
FN8  IT IS ESPECIALLY DIFFICULT TO SAY THAT IN HASSETT V. WELCH, SUPRA,
THE COURT CONSIDERED ONLY THE LANGUAGE ADDED BY THE JOINT RESOLUTION
AND NOT THE SECTION IN ITS ENTIRETY, SINCE IT PHRASED THE ISSUE BEFORE
IT IN THIS WAY: 

"THE PETITIONERS ASK US TO HOLD THAT SEC. 302(C) OF THE REVENUE ACT
OF 1926 AS AMENDED BY THE JOINT RESOLUTION OF CONGRESS OF MARCH 3,
1931, AND SEC. 803(A) OF THE REVENUE ACT OF 1932, INCLUDES IN THE GROSS
ESTATE OF A DECEDENT, FOR ESTATE TAX, PROPERTY WHICH, BEFORE THE
ADOPTION OF THE AMENDMENTS, WAS IRREVOCABLY TRANSFERRED WITH
RESERVATION OF A LIFE ESTATE TO THE TRANSFEROR ..."  303 U.S. AT 304. 

IF MAY V. HEINER HAD NOT BEEN ACCEPTED AS AUTHORITATIVE, IT WOULD
HAVE BEEN POINTLESS TO DECIDE THAT THE AMENDMENT TO SEC. 302(C) OF THE
REVENUE ACT OF 1926 DID NOT OPERATE RETROACTIVELY.  SEE LEARNED HAND,
J., IN HELVERING V. PROCTOR, 140 F.2D 87, 89(C.A.2D CIR.). 

OF COURSE THE GOVERNMENT DID NOT ATTACK MAY V. HEINER IN HASSETT V.
WELCH, SUPRA.  HAVING BEEN REBUFFED THREE TIMES BY THIS COURT IN ITS
EFFORTS TO SECURE ITS OVERRULING AND HAVING RESORTED TO CONGRESS TO
NULLIFY ITS EFFECT, THE WHOLE CLAIM OF THE GOVERNMENT IN HASSETT V.
WELCH WAS THAT CONGRESS HAD, AS IT WERE, OVERRULED MAY V. HEINER BY THE
RESOLUTION OF MARCH 3, 1931, NOT ONLY PROSPECTIVELY, BUT
RETROSPECTIVELY.  THAT CONSTRUCTION OF THE RESOLUTION OF 1931 HAD TO BE
REJECTED IN THE LIGHT OF THE LEGISLATIVE HISTORY OF THE RESOLUTION. 
THE UNANIMITY OF THE COURT'S DECISION IN HASSETT V. WELCH CONFIRMS THE
INEVITABILITY OF THE DECISION.  AND THE CONSIDERATIONS THAT LED THE
GOVERNMENT NOT TO ATTACK MAY V. HEINER IN HASSETT V. WELCH LIKEWISE LED
THE GOVERNMENT NOT TO ASK THE COURT TO OVERRULE MAY V. HEINER IN THIS
LITIGATION UNTIL PROPELLED TO DO SO BY THIS COURT'S ORDER FOR
REARGUMENT.  THESE CONSIDERATIONS WERE OF THE SAME NATURE, EXCEPT
REENFORCED BY ANOTHER DECADE'S RESPECT FOR MAY V. HEINER BY THE
TREASURY IN THE ACTUAL ADMINISTRATION OF THE REVENUE LAW. 

CONGRESS HAS MADE NO CHANGE IN THIS SECTION SINCE 1932 AND THE
IDENTICAL LANGUAGE WAS CARRIED OVER AS SEC. 811(C) OF THE INTERNAL
REVENUE CODE IN 1939.  THERE HAS BEEN NO AMENDMENT TO THIS LANGUAGE IN
THE CODE.  ALTHOUGH THE SPONSORS OF THE JOINT RESOLUTION IN THE HOUSE
EXPRESSED THE HOPE THAT THE NEXT CONGRESS WOULD MAKE THE RESOLUTION'S
PROVISIONS RETROACTIVE, NOTHING OF THE SORT WAS DONE.  SEE 74 CONG.
REC. 7199, PARTIALLY QUOTED ANTE AT P. 678.  NOR DID THE TREASURY
REMIND ANY SUBSEQUENT CONGRESS OF THIS UNFINISHED BUSINESS, DESPITE THE
FACT THAT IT URGED AMENDMENT OF OTHER PROVISIONS OF THE ESTATE-TAX
LAW.  FN9 

THE COURT DURING THE PAST DECADE, IN AN IMPRESSIVE BODY OF DECISIONS,
HAS GIVEN EFFECT TO LEGISLATIVE HISTORY UNDER CIRCUMSTANCES FAR LESS
COMPELLING THAN THE STORY HERE SUMMARIZED.  SEE THE MASSIVE BODY OF
CASES COLLECTED IN APPENDIX A, POST, P. 687.  MOREOVER, IN THE FACE OF
THE LEGISLATIVE HISTORY SET OUT ABOVE, EVEN AN OVERRULING OF THE FIVE
CASES IN WHICH THIS PRECISE ISSUE WAS DECIDED WOULD NOT GIVE THIS COURT
A FREE HAND.  FOR THE SUBSEQUENT ACTIONS OF CONGRESS MAKE THE MEANING
ANNOUNCED IN MAY V. HEINER AND REAFFIRMED FOUR TIMES AS MUCH A PART OF
THE WORDING OF THE STATUTE AS IF IT HAD BEEN WRITTEN IN EXPRESS TERMS. 
SEE NOTE, 59 HARV. L. REV. 1277, 1285.  AN INTERPRETATION THAT "CAME
LIKE A BOMBSHELL" CERTAINLY HAD THE ATTENTION OF THE CONGRESS.  ITS
FAILURE TO ALTER THE LANGUAGE INDICATES THAT IT ACCEPTED THAT
INTERPRETATION.  SEE THE CASES COLLECTED IN APPENDIX B, POST, P. 690. 
DUE REGARD FOR THIS COURT'S FUNCTION PRECLUDES IT FROM IGNORING
EXPLICIT LEGISLATIVE INTENTION EVEN TO "YIELD RESULTS MORE CONSONANT
WITH FAIRNESS AND REASON."  ANDERSON V. WILSON, 289 U.S. 20, 27; SEE
CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 14(1921).  WHAT THE
TREASURY COULD NOT INDUCE THE HOUSE TO DO BECAUSE THE SENATE WOULD NOT
VOTE FOR IT WE SHOULD NOT NOW, EIGHTEEN YEARS LATER, BRING TO PASS
SIMPLY BECAUSE OUR ACTION IN THIS CASE DOES NOT DEPEND UPON THAT BODY'S
CONCURRENCE. 

NO COMPARABLE LEGISLATIVE HISTORY WAS FLOUTED IN HELVERING V.
HALLOCK, 309 U.S. 106.  IT IS ONE THING TO HOLD THAT CONGRESS IS NOT
CHARGED EITHER WITH SEEKING OUT AND READING DECISIONS WHICH REACH
CONFLICTING VIEWS IN THE APPLICATION OF A SOUND PRINCIPLE OR WITH
TAKING STEPS TO MEET SUCH DECISIONS.  THIS IS THE MEANING OF OUR
HOLDING IN THE HALLOCK CASE.  FN10  IT IS QUITE A DIFFERENT THING TO
SAY THAT A STATUTE DOES NOT ACQUIRE AUTHORITATIVE CONTENT WHEN A
DECISION INTERPRETING IT HAS BEEN CALLED TO THE ATTENTION OF THE PUBLIC
AND OF CONGRESS AND HAS ENGENDERED PROFESSIONAL CONTROVERSY, AND WHEN
CONGRESS, AFTER FULL DEBATE, HAS NOT MERELY REFUSED TO UNDO THE EFFECT
OF THE DECISION BUT HAS SEEN FIT TO MODIFY IT ONLY PARTIALLY. 
HELVERING V. GRIFFITHS, 318 U.S. 371; UNITED STATES V. SOUTH BUFFALO R.
CO., 333 U.S. 771, 773-785; CF. APEX HOSIERY CO. V. LEADER, 310 U.S.
469, 487-489.  THAT IS THIS CASE.  FN11 

THE OPINION OF THE MAJORITY IN THE HALLOCK CASE DID NOT, EITHER
EXPLICITLY OR BY IMPLICATION, DECLARE THAT MAY V. HEINER WAS NO LONGER
THE ACCEPTED INTERPRETATION OF THE PRE-1931 PART OF THE LANGUAGE IN
SEC. 811(C).  WHEN WE SPOKE OF WHAT HAD BEEN "CONGRESSIONALLY
DISCARDED" - A REFERENCE, INCIDENTALLY, MADE TO ANSWER THE ARGUMENT
THAT CONGRESS HAD LEGISLATIVELY RECOGNIZED THE DISTINCTION BETWEEN THE
KLEIN  FN12  AND THE ST. LOUIS TRUST  FN13  CASES - WE MEANT JUST WHAT
CONGRESS MEANT, THAT WHERE A SETTLOR CREATED A TRUST AFTER MAY 3, 1931,
IN WHICH HE RESERVED A LIFE ESTATE, THE PROPERTY TRANSFERRED WOULD BE
INCLUDED IN THE GROSS ESTATE.  IT IS SIGNIFICANT THAT ONLY ONE  FN14
OF THE MANY CIRCUIT JUDGES WHO HAVE DEALT WITH THE HALLOCK OPINION HAS
THOUGHT THAT IT OVERRULED MAY V. HEINER OR THAT THE INTERPRETATION
THERE ANNOUNCED WAS TO BE CHANGED.  COMMISSIONER V. HALL'S ESTATE, 153
F.2D 172(C.A.2D CIR.); HELVERING V. PROCTOR, 140 F.2D 87(C.A.2D CIR.);
COMMISSIONER V. CHURCH'S ESTATE, 161 F.2D 11(C.A.3D CIR.); UNITED
STATES V. BROWN, 134 F.2D 372(C.A.9TH CIR.).  THE CONTENTION THAT THE
HALLOCK CASE OVERRULED MAY V. HEINER WAS, ONE WOULD HAVE SUPPOSED,
CONCLUSIVELY ANSWERED BY JUDGE LEARNED HAND IN HELVERING V. PROCTOR,
SUPRA AT PP. 88-89:    "THE OPINION OF THE MAJORITY IN HELVERING V.
HALLOCK, SUPRA, DID NOT EXPLICITLY, OR BY INFERENCE FROM ANYTHING SAID,
DECLARE THAT MAY V. HEINER, SUPRA  ...  WAS NO LONGER LAW.  WE DO NOT
FORGET THAT IN A NOTE ON PAGE 120 OF 309 U.S. ...  FRANKFURTER, J.,
SPOKE OF THE 'CONGRESSIONALLY DISCARDED MAY V. HEINER DOCTRINE;' BUT IT
WOULD BE QUITE UNWARRANTED FROM THAT TO INFER THAT THE COURT MEANT TO
OVERRULE THAT 'DOCTRINE,' AND THE NOTE WAS ADDED FOR QUITE ANOTHER
PURPOSE.  ... IT CANNOT PROPERLY BE INTERPRETED AS HOLDING THAT THE
AMENDMENT WAS A LEGISLATIVE INTERPRETATION THAT MAY V. HEINER, SUPRA,
HAD BEEN WRONGLY DECIDED.  PERHAPS IT WAS WRONGLY DECIDED; PERHAPS THE
AMENDMENT IS EVIDENCE THAT IT WAS; BUT THE SUPREME COURT DID NOT SAY
SO, OR INDICATE THAT IT THOUGHT SO.  IT IS TRUE THAT ROBERTS, J. IN HIS
DISSENT FOUND NO DIFFERENCE (309 U.S. AT PAGE 127 ...  ) BETWEEN THAT
DECISION AND HELVERING V. ST. LOUIS UNION TRUST CO., SUPRA, 296 U.S. 39
... AND APPARENTLY THOUGHT THAT CONSISTENTLY, MAY V. HEINER, SUPRA,
MUST ALSO FALL, BUT THE MAJORITY DID NOT SHARE HIS OPINION. 

"HELVERING V. HALLOCK, SUPRA, 309 U.S. 106  ...  WAS CONCERNED WITH
QUITE ANOTHER SITUATION.  THE SETTLOR HAD PROVIDED THAT, IF HE SURVIVED
HIS WIFE - WHO HAD A LIFE ESTATE - THE REMAINDER WENT TO HIM; BUT IF
SHE SURVIVED HIM, THE REMAINDER WENT TO HER.  ALL THAT WAS DECIDED WAS
THAT, WHEN THAT WAS THE INTENT, IT MADE NO DIFFERENCE WHAT WAS THE FORM
OF WORDS USED.  IT WAS ENOUGH THAT THE SETTLOR'S DEATH CUT OFF AN
INTEREST WHICH HE HAD RESERVED TO HIMSELF UPON A CONDITION THEN
DETERMINED; THAT MADE THE REMAINDER A PART OF HIS ESTATE.  ...  IF
THEREFORE MAY V. HEINER, SUPRA, 281 U.S. 238  ...  IS TO BE OVERRULED,
WE DO NOT SEE HOW HELVERING V. HALLOCK, SUPRA, CAN BE THOUGHT TO
CONTRIBUTE TO THAT RESULT; IT MUST BE OVERRULED BY A NEW AND ALTOGETHER
INDEPENDENT LIFT OF POWER, WHICH IT IS CLEARLY NOT OURS TO EXERCISE. 
FURTHERMORE, IF THE COMMISSIONER IS RIGHT, HELVERING V. HALLOCK, SUPRA,
309 U.S. 106  ...  ALSO OVERRULED HASSETT V. WELCH, 303 U.S. 303  ...
SUB SILENTIO.  THAT DECISION HAD HELD THAT THE AMENDMENT TO SEC. 302(C)
DID NOT OPERATE RETROACTIVELY; AND IT WOULD NOT HAVE BEEN NECESSARY TO
DISCUSS THAT QUESTION, NOR WOULD THE ACTUAL RESULT HAVE BEEN THE SAME,
IF MAY V. HEINER, SUPRA, 281 U.S. 238  ...  HAD NOT BEEN LAW." 

I WOULD REVERSE SPIEGEL V. COMMISSIONER, NO. 3, AND AFFIRM
COMMISSIONER V. ESTATE OF CHURCH, NO. 5. 

FN1  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT DID NOT DETERMINE
WHETHER A GRANDCHILD WHO SURVIVED HIS PARENT ALSO HAD TO SURVIVE THE
SETTLOR-DECEDENT TO HAVE THE RIGHT TO HIS SHARE OF THE PRINCIPAL GO TO
HIS ESTATE. 

FN2  THE GRANT OF CERTIORARI WAS "LIMITED TO THE QUESTION OF WHETHER
THE ENTIRE VALUE OF THE CORPUS OF THE TRUST AT THE TIME OF DECEDENT'S
DEATH SHOULD HAVE BEEN INCLUDED IN THE DECEDENT'S GROSS ESTATE." 
FIDELITY-PHILADELPHIA TRUST CO. V. ROTHENSIES, 324 U.S. 108, 110.  THE
SAME IS TRUE IN COMMISSIONER V. ESTATE OF FIELD, 324 U.S. 113, 114. 

FN3  IN NO. 5, COMMISSIONER V. CHURCH, IT IS EVEN CLEARER THAT EVENTS
SUBSEQUENT TO THE CREATION OF THE TRUST REMOVED WHATEVER POSSIBILITY OF
REVERTER HAD PREVIOUSLY EXISTED EVEN IF ONE ASSUMES THAT WHEN THE TRUST
WAS CREATED THE SETTLOR WOULD REGAIN THE PROPERTY IF CHILDREN OR HIS
BROTHERS AND SISTERS DID NOT SURVIVE HIM.  THE TRUST INDENTURE PROVIDED
THAT THE CORPUS WAS TO GO TO THE ISSUE OF DECEASED BROTHERS AND SISTERS
IF HE SURVIVED HIS BROTHERS AND SISTERS, BUT THERE WAS NO REQUIREMENT
THAT THE CHILDREN SURVIVE ANYONE TO TAKE.  UNLESS WE ARE GOING TO
IMPORT NOTIONS OF TORTIOUS CONVEYANCES INTO MODERN TRUST ARRANGEMENTS,
THE SUBSEQUENT BIRTH OF THE CHILDREN OF HIS BROTHERS AND SISTERS
REMOVED ANY POSSIBILITY THAT THE PROPERTY WOULD COME BACK TO THE
SETTLOR.  SINCE I DO NOT REJECT MAY V. HEINER, I DO NOT REGARD THE
RETENTION OF THE LIFE ESTATE AS CAUSING THE ESTATE TO BE TAXED. 

FN4  SEE SMITH-HURD, ILL. STAT. ANN., TITLE 110, SEC. 181.1.  (ADDED
MAY 16, 1945.) 

FN5  THE PORTION OF SEC. 811(C) WITH WHICH WE ARE NOW CONCERNED HAS
BEEN CONTINUOUSLY ON THE STATUTE BOOKS SINCE 1916, WHEN THE FIRST
FEDERAL ESTATE-TAX LAW WAS ENACTED.  REVENUE ACT OF 1916, SEC. 202(B),
39 STAT. 777; REVENUE ACT OF 1918, SEC. 402(C), 40 STAT. 1097; REVENUE
ACT OF 1921, SEC. 402(C), 42 STAT. 278; REVENUE ACT OF 1924, SEC.
302(C), 43 STAT. 304; REVENUE ACT OF 1926, SEC. 302(C), 44 STAT. 70,
AMENDED BY JOINT RESOLUTION OF MARCH 3, 1931, 46 STAT. 1516; REVENUE
ACT OF 1932, SEC. 803(A), 47 STAT. 278; INT. REV. CODE SEC. 811(C). 

FN6  SEE SCREWS V. UNITED STATES, 325 U.S. 91, 112-113.  "BUT BEYOND
THAT IS THE PROBLEM OF STARE DECISIS.  THE CONSTRUCTION GIVEN SEC. 20
IN THE CLASSIC CASE FORMULATED A RULE OF LAW WHICH HAS BECOME THE BASIS
OF FEDERAL ENFORCEMENT IN THIS IMPORTANT FIELD.  THE RULE ADOPTED IN
THAT CASE WAS FORMULATED AFTER MATURE CONSIDERATION.  IT SHOULD BE GOOD
FOR MORE THAN ONE DAY ONLY.  WE DO NOT HAVE HERE A SITUATION COMPARABLE
TO MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96, WHERE WE OVERRULED A
DECISION DEMONSTRATED TO BE A SPORT IN THE LAW AND INCONSISTENT WITH
WHAT PRECEDED AND WHAT FOLLOWED.  THE CLASSIC CASE WAS NOT THE PRODUCT
OF HASTY ACTION OR INADVERTENCE.  IT WAS NOT OUT OF LINE WITH THE CASES
WHICH PRECEDED.  IT WAS DESIGNED TO FASHION THE GOVERNING RULE OF LAW
IN THIS IMPORTANT FIELD.  WE ARE NOT DEALING WITH CONSTITUTIONAL
INTERPRETATIONS WHICH THROUGHOUT THE HISTORY OF THE COURT HAVE WISELY
REMAINED FLEXIBLE AND SUBJECT TO FREQUENT REEXAMINATION.  THE MEANING
WHICH THE CLASSIC CASE GAVE TO THE PHRASE 'UNDER COLOR OF ANY LAW'
INVOLVED ONLY A CONSTRUCTION OF THE STATUTE.  HENCE IF IT STATES A RULE
UNDESIRABLE IN ITS CONSEQUENCES, CONGRESS CAN CHANGE IT.  WE ADD ONLY
TO THE INSTABILITY AND UNCERTAINTY OF THE LAW IF WE REVISE THE MEANING
OF SEC. 20 TO MEET THE EXIGENCIES OF EACH CASE COMING BEFORE US." 

FN7  SEE BRIEF FOR PETITIONER, PP. 20 ET SEQ., IN HASSETT V. WELCH,
303 U.S. 303. 

FN8  THE COURT MADE IT CLEAR IN MAY V. HEINER AND THE THREE CASES
FOLLOWING IT THAT IT WAS RESOLVING A STATUTORY, RATHER THAN A
CONSTITUTIONAL, QUESTION.  MAY V. HEINER, 281 U.S. 238, 244-245; BURNET
V. NORTHERN TRUST CO., 283 U.S. 782, 783; MORSMAN V. BURNET, 283 U.S.
783, 783-784; MCCORMICK V. BURNET, 283 U.S. 784, 784-785.  NOR WAS
CONGRESS LEFT IN DOUBT THAT THE COURT HAD MERELY CONSTRUED THE STATUTE
WHICH CONGRESS WAS THEN BEING ASKED TO QUALIFY.  IN THE HOUSE, MR.
BLACK OF NEW YORK ASKED, "WAS THE SUPREME COURT DECISION BASED ON A
CONSTITUTIONAL QUESTION, OR A DISCUSSION OF THE STATUTE?"  TO WHICH A
SPONSOR OF THE LEGISLATION, MR. GARNER OF TEXAS, REPLIED, "IT WAS ON
THE STATUTE ITSELF, AND WAS NOT CONSTITUTIONAL."  74 CONG. REC. 7199. 
INDEED IT IS DIFFICULT TO ASSUME THAT THE COURT WAS AFFECTED BY NOTIONS
OF CONSTITUTIONALITY IN VIEW OF THE FACT THAT WHEN THE COURTS OF THE
STATE OF NEW YORK HELD SIMILAR WORDS TO APPLY TO A RESERVED LIFE
ESTATE, THIS COURT REJECTED THE CONTENTION THAT THE LAW OFFENDED THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  KEENEY V. NEW YORK,
222 U.S. 525. 

FN9  SEE, E.G., HEARINGS BEFORE COMMITTEE ON WAYS AND MEANS ON
REVENUE REVISION, 1932, 72D CONG., 1ST SESS. 7, 42-43; HEARINGS BEFORE
COMMITTEE ON FINANCE ON THE REVENUE ACT OF 1932, 72D CONG., 1ST SESS.
33, 51; 75 CONG. REC. 5787; HEARINGS BEFORE COMMITTEE ON WAYS AND MEANS
ON THE REVENUE ACT, 1936, 74TH CONG., 2D SESS. 624; HEARINGS BEFORE THE
COMMITTEE ON WAYS AND MEANS ON REVISION OF REVENUE LAWS 1938, 75TH
CONG., 3D SESS. 108; HEARINGS BEFORE THE FINANCE COMMITTEE ON THE
REVENUE ACT OF 1938, 75TH CONG., 3D SESS. 692-93; HEARINGS BEFORE THE
COMMITTEE ON WAYS AND MEANS ON REVENUE REVISION OF 1941, 77TH CONG.,
1ST SESS. 74-75; HEARINGS BEFORE THE FINANCE COMMITTEE ON THE REVENUE
ACT OF 1941, 77TH CONG., 1ST SESS. 37; DATA ON PROPOSED REVENUE BILL OF
1942 SUBMITTED TO THE COMMITTEE ON WAYS AND MEANS BY THE TREASURY
DEPARTMENT AND THE STAFF OF THE JOINT COMMITTEE ON INTERNAL REVENUE
TAXATION 363-65(1942), AND HEARINGS BEFORE THE COMMITTEE ON WAYS AND
MEANS ON REVENUE REVISION OF 1942, 77TH CONG., 2D SESS. 7, 91-92, 94;
REVISED HEARINGS BEFORE THE COMMITTEE ON WAYS AND MEANS ON REVENUE
REVISION OF 1943, 78TH CONG., 1ST SESS. 7; REVISED HEARINGS BEFORE THE
FINANCE COMMITTEE ON THE REVENUE ACT OF 1943, 78TH CONG., 1ST SESS. 46;
FEDERAL ESTATE AND GIFT TAXES, A PROPOSAL FOR INTEGRATION AND FOR
CORRELATION WITH THE INCOME TAX, A JOINT STUDY PREPARED BY AN ADVISORY
COMMITTEE TO THE TREASURY DEPARTMENT AND BY THE OFFICE OF THE TAX
LEGISLATIVE COUNSEL, WITH THE COOPERATION OF THE DIVISION OF TAX
RESEARCH AND THE BUREAU OF INTERNAL REVENUE (1948); LETTER FROM THE
UNDER SECRETARY OF THE TREASURY TO THE CHAIRMAN, COMMITTEE ON WAYS AND
MEANS, FEBRUARY 26, 1948, PP. 3, 5, 8(MIMEOGRAPHED COPY FURNISHED BY
THE DEPARTMENT OF THE TREASURY). 

FN10  THE ENTIRE TEXT OF THE HALLOCK OPINION INSOFAR AS HERE RELEVANT
MAKES CLEAR WHY THE SITUATION IN THE HALLOCK CASE IS NOT AT ALL SIMILAR
TO THAT INVOLVED IN THE CHURCH CASE. 

"NOR DOES WANT OF SPECIFIC CONGRESSIONAL REPUDIATIONS OF THE ST.
LOUIS TRUST CASES SERVE AS AN IMPLIED INSTRUCTION BY CONGRESS TO US NOT
TO RECONSIDER, IN THE LIGHT OF NEW EXPERIENCE, WHETHER THOSE DECISIONS,
IN CONJUNCTION WITH THE KLEIN CASE, MAKE FOR DISSONANCE OF DOCTRINE. 
IT WOULD REQUIRE VERY PERSUASIVE CIRCUMSTANCES ENVELOPING CONGRESSIONAL
SILENCE TO DEBAR THIS COURT FROM REEXAMINING ITS OWN DOCTRINES.  TO
EXPLAIN THE CAUSE OF NON-ACTION BY CONGRESS WHEN CONGRESS ITSELF SHEDS
NO LIGHT IS TO VENTURE INTO SPECULATIVE UNREALITIES.  CONGRESS MAY NOT
HAVE HAD ITS ATTENTION DIRECTED TO AN UNDESIRABLE DECISION; AND THERE
IS NO INDICATION THAT AS TO THE ST. LOUIS TRUST CASES IT HAD, EVEN BY
ANY BILL THAT FOUND ITS WAY INTO A COMMITTEE PIGEON-HOLE.  CONGRESS MAY
NOT HAVE HAD ITS ATTENTION SO DIRECTED FOR ANY NUMBER OF REASONS THAT
MAY HAVE MOVED THE TREASURY TO STAY ITS HAND.  BUT CERTAINLY SUCH
INACTION BY THE TREASURY CAN HARDLY OPERATE AS A CONTROLLING
ADMINISTRATIVE PRACTICE, THROUGH ACQUIESCENCE, TANTAMOUNT TO AN
ESTOPPEL BARRING REEXAMINATION BY THIS COURT OF DISTINCTIONS WHICH IT
HAD DRAWN.  VARIOUS CONSIDERATIONS OF PARLIAMENTARY TACTICS AND
STRATEGY MIGHT BE SUGGESTED AS REASONS FOR THE INACTION OF THE TREASURY
AND OF CONGRESS, BUT THEY WOULD ONLY BE SUFFICIENT TO INDICATE THAT WE
WALK ON QUICKSAND WHEN WE TRY TO FIND IN THE ABSENCE OF CORRECTIVE
LEGISLATION A CONTROLLING LEGAL PRINCIPLE." 

FOOTNOTE 7 OF THE HALLOCK OPINION RECOGNIZED THE DOCTRINE OF
REENACTMENT BUT STATED THAT IT "HAS NO RELEVANCE TO THE PRESENT
PROBLEM" BECAUSE (1) "THE FACT OF CONGRESSIONAL ACTION IN DEALING WITH
ONE PROBLEM WHILE SILENT ON THE DIFFERENT PROBLEMS CREATED BY THE ST.
LOUIS TRUST CASES, DOES NOT IMPLY CONTROLLING ACCEPTANCE BY CONGRESS OF
THOSE CASES"; (2) "SINCE THE DECISIONS IN THE ST. LOUIS TRUST CASES,
CONGRESS HAS NOT RE-ENACTED SEC. 302(C)"; (3) THERE WAS  "...  NO  ...
LONG, UNIFORM ADMINISTRATIVE CONSTRUCTION AND SUBSEQUENT RE-ENACTMENTS
OF AN AMBIGUOUS STATUTE TO GIVE GROUND FOR IMPLYING LEGISLATIVE
ADOPTION OF SUCH CONSTRUCTION."  AS INDICATED IN THE TEXT OF THIS
DISSENT, THE FOOTNOTE ALSO POINTED OUT THAT CONGRESS BY THE JOINT
RESOLUTION OF MARCH 3, 1931, COULD PLAUSIBLY BE SAID TO HAVE REJECTED
THE ATTITUDE UNDERLYING THE ST. LOUIS TRUST CASES.  THE TABLE IN THE
NEXT NOTE SHOWS JUST HOW INAPPOSITE ARE THESE OBSERVATIONS TO THE STORY
OF THE TREASURY'S ATTEMPT TO UNDO THIS COURT'S RULING IN MAY V. HEINER
AND THE CASES WHICH FOLLOWED IT. 

FN11  BEARING OF LEGISLATION SUBSEQUENT TO HELVERING V. ST. LOUIS
UNION TRUST CO., 296 U.S. 39, COMPARED WITH THAT IN RESPONSE TO MAY V.
HEINER, 281 U.S. 238. 

                          ST. LOUIS

    RELEVANT FACTORS      TRUST CASES        MAY V. HEINER SERIES 

1.  AGE OF QUESTIONED       FIVE YEARS   EIGHTEEN YEARS 

INTERPRETATION WHEN 

ABANDONED 

2.  WEIGHT OF ADJUDICATION 

(A)  COURT'S DIVISION       5-4          UNANIMOUS 

(B)  TIMES DECIDED          ONCE         FIVE TIMES 

3.  EVIDENCE OF             NONE         (A)  THE EXACT HOLDING 

CONGRESSIONAL ACQUIESCENCE               EXPLAINED TO CONGRESS

                                       (B)  CHANGE EXPRESSLY

                                       MADE PROSPECTIVE 

4.  APPARENT REASON FOR     NONE         DIFFICULTY OF GETTING
NECESSARY 

CONGRESSIONAL ADHERENCE   SENATE VOTES 

TO QUESTIONED CASE 

FN12  KLEIN V. UNITED STATES, 283 U.S. 231. 

FN13  HELVERING V. ST. LOUIS UNION TRUST CO., 296 U.S. 39; BECKER V.
ST. LOUIS UNION TRUST CO., 296 U.S. 48. 

FN14  AND EVEN THE JUDGE WHO FOUND MAY V. HEINER INCONSISTENT WITH
THE HALLOCK CASE SUGGESTED THAT THE TAX COURT DETERMINE WHETHER THE
GRANTOR FAILED TO RELINQUISH HIS LIFE ESTATE IN RELIANCE ON MAY V.
HEINER.  SEE FRANK, J., DISSENTING IN COMMISSIONER V. HALL'S ESTATE,
153 F.2D 172, 174, 175(C.A.2D CIR.).  THE GOVERNMENT AT THE BAR OF THIS
COURT SUGGESTED THAT HARDSHIPS COULD BE ALLEVIATED BY A REGULATION
RELIEVING OF A TAX THOSE ESTATES WHICH COULD SHOW SUCH RELIANCE.  THE
VERY SUGGESTION INVOLVES A CONFESSION THAT THE DECISION URGED UPON THE
COURT WOULD BE UNFAIR. 

                              APPENDIX A

          DECISIONS DURING THE PAST DECADE IN WHICH LEGISLATIVE

           HISTORY WAS DECISIVE OF CONSTRUCTION OF         A

           PARTICULAR STATUTORY PROVISION 

UNITED STATES V. DURKEE FAMOUS FOODS, INC., 306 U.S. 68; UNITED STATES
V. TOWERY, 306 U.S. 324; KESSLER V. STRECKER, 307 U.S. 22; UNITED
STATES V. MAHER, 307 U.S. 148; UNITED STATES V. ONE 1936 MODEL FORD,
307 U.S. 219; SANFORD V. COMMISSIONER, 308 U.S. 39; PALMER V.
MASSACHUSETTS, 308 U.S. 79; VALVOLINE OIL CO. V. UNITED STATES, 308
U.S. 141; HAGGAR CO. V. HELVERING, 308 U.S. 389; AMERICAN FEDERATION OF
LABOR V. LABOR BOARD, 308 U.S. 401; KALB V. FEUERSTEIN, 308 U.S. 433;
MORGAN V. COMMISSIONER, 309 U.S. 78; SOUTH CHICAGO COAL & DOCK CO. V.
BASSETT, 309 U.S. 251; AMALGAMATED UTILITY WORKERS V. CONSOLIDATED
EDISON CO. OF NEW YORK, 309 U.S. 261; GERMANTOWN TRUST CO. V.
COMMISSIONER, 309 U.S. 304; SHELDON V. METRO-GOLDWYN PICTURES CORP.,
309 U.S. 390; UNITED STATES V. CITY AND COUNTY OF SAN FRANCISCO, 310
U.S. 16; SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381; UNITED
STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534; UNITED STATES V.
DICKERSON, 310 U.S. 554; HELVERING V. NORTHWEST STEEL ROLLING MILLS,
INC., 311 U.S. 46; NEUBERGER V. COMMISSIONER, 311 U.S. 83; MILK WAGON
DRIVERS' UNION V. LAKE VALLEY FARM PRODUCTS, 311 U.S. 91; HELVERING V.
JANNEY, 311 U.S. 189; TAFT V. HELVERING, 311 U.S. 195; HINES V.
DAVIDOWITZ, 312 U.S. 52; UNITED STATES V. GILLILAND, 312 U.S. 86;
PALMER V. WEBSTER & ATLAS NATIONAL BANK, 312 U.S. 156; UNITED STATES V.
COOPER CORP., 312 U.S. 600; HELVERING V. ENRIGHT, 312 U.S. 636; MAGUIRE
V. COMMISSIONER, 313 U.S. 1; HELVERING V. CAMPBELL, 313 U.S. 15;
SHAMROCK OIL & GAS CORP. V. SHEETS, 313 U.S. 100; PHELPS DODGE CORP. V.
LABOR BOARD, 313 U.S. 177; HELVERING V. WILLIAM FLACCUS OAK LEATHER
CO., 313 U.S. 247; SAMPAYO V. BANK OF NOVA SCOTIA, 313 U.S. 270;
BALTIMORE & OHIO R. CO. V. KEPNER, 314 U.S. 44; PARKER V. MOTOR BOAT
SALES, INC., 314 U.S. 244; TEXTILE MILLS SECURITIES CORP. V.
COMMISSIONER, 314 U.S. 326; GRAY V. POWELL, 314 U.S. 402; DISTRICT OF
COLUMBIA V. MURPHY, 314 U.S. 441; ILLINOIS NATURAL GAS CO. V. CENTRAL
ILLINOIS PUBLIC SERVICE, 314 U.S. 498; DUNCAN V. THOMPSON, 315 U.S. 1;
CUDAHY PACKING CO. V. HOLLAND, 315 U.S. 357; UNITED STATES V. LOCAL 807
OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 315 U.S. 521; STONITE
PRODUCTS CO. V. MELVIN LLOYD CO., 315 U.S. 561.  LABOR BOARD V.
ELECTRIC VACUUM CLEANER CO., 315 U.S. 685; MILES V. ILLINOIS CENTRAL R.
CO., 315 U.S. 698; UNITED STATES TO THE USE OF NOLAND CO. V. IRWIN, 316
U.S. 23; MISHAWAKA RUBBER & WOOLEN MANUFACTURING CO. V. S.S. KRESGE
CO., 316 U.S. 203; KIRSCHBAUM CO. V. WALLING, 316 U.S. 517; HELVERING
V. CEMENT INVESTORS, INC., 316 U.S. 527; MARINE HARBOR PROPERTIES, INC.
V. MANUFACTURERS TRUST CO., 317 U.S. 78; BRAVERMAN V. UNITED STATES,
317 U.S. 49; RIGGS V. DEL DRAGO, 317 U.S. 95; EX PARTE KUMEZO KAWATO,
317 U.S. 69; STATE BANK OF HARDINSBURG V. BROWN, 317 U.S. 135; PFISTER
V. NORTHERN ILLINOIS FINANCE CORP., 317 U.S. 144; UNITED STATES V.
WAYNE PUMP CO., 317 U.S. 200; PARKER V. BROWN, 317 U.S. 341; WALLING V.
JACKSONVILLE PAPER CO., 317 U.S. 564; HARRISON V. NORTHERN TRUST CO.,
317 U.S. 476; UNITED STATES V. HESS, 317 U.S. 537; UNITED STATES V.
MONIA, 317 U.S. 424; ZIFFRIN, INC. V. UNITED STATES, 318 U.S. 73;
PALMER V. HOFFMAN, 318 U.S. 109; OVERSTREET V. NORTH SHORE CORP., 318
U.S. 125; ROBINETTE V. HELVERING, 318 U.S. 184; SMITH V. SHAUGHNESSY,
318 U.S. 176; HELVERING V. SABINE TRANSP.  CO., 318 U.S. 306; FEDERAL
SECURITY ADM'R V. QUAKER OATS CO., 318 U.S. 218; UNITED STATES V. SWIFT
& CO., 318 U.S. 442; ECKER V. WESTERN PAC. R. CO., 318 U.S. 448; FRED
FISHER MUSIC CO. V. M. WITMARK & SONS, 318 U.S. 643; JERSEY CENTRAL
POWER & LIGHT CO. V. FEDERAL POWER COMMISSION, 319 U.S. 61; NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190; BOONE V. LIGHTNER, 319
U.S. 561; SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118; HIRABAYASHI V.
UNITED STATES, 320 U.S. 81.  ROBERTS V. UNITED STATES, 320 U.S. 264;
UNITED STATES V. DOTTERWEICH, 320 U.S. 277; CRESCENT EXPRESS LINES V.
UNITED STATES, 320 U.S. 401; COLGATE-PALMOLIVE-PEET CO. V. UNITED
STATES, 320 U.S. 422; UNITED STATES V. LAUDANI, 320 U.S. 543; UNITED
STATES V. MYERS, 320 U.S. 561; MCLEAN TRUCKING CO. V. UNITED STATES,
321 U.S. 67; BROTHERHOOD OF RAILROAD TRAINMEN, ENTERPRISE LODGE, NO. 27
V. TOLEDO, P. & W.R. CO., 321 U.S. 50; B.F. GOODRICH CO. V. UNITED
STATES, 321 U.S. 126; DAVIES WAREHOUSE CO. V. BOWLES, 321 U.S. 144;
HECHT CO. V. BOWLES, 321 U.S. 321; CORNELL STEAMBOAT CO. V. UNITED
STATES, 321 U.S. 634; LABOR BOARD V. HEARST PVOLICATIONS, 322 U.S. 111;
CAROLENE PRODUCTS CO. V. UNITED STATES, 323 U.S. 18; SMITH V. DAVIS,
323 U.S. 111; UNITED STATES V. ROSENWASSER, 323 U.S. 360; WESTERN UNION
TELEGRAPH CO. V. LENROOT, 323 U.S. 490; HARTFORD-EMPIRE CO. V. UNITED
STATES, 323 U.S. 386; CENTRAL STATES ELECTRIC CO. V. CITY OF MUSCATINE,
324 U.S. 138; GEMSCO V. WALLING, 324 U.S. 244; CANADIAN AVIATOR V.
UNITED STATES, 324 U.S. 215; CONNECTICUT LIGHT & POWER CO. V. FEDERAL
POWER COMMISSION, 324 U.S. 515; A.H. PHILLIPS, INC. V. WALLING, 324
U.S. 490; BROOKLYN SAV. BANK V. O'NEIL, 324 U.S. 697; FEDERAL TRADE
COMMISSION V. A.E. STALEY MFG. CO., 324 U.S. 746; JEWELL RIDGE COAL
CORP. V. LOCAL NO. 6167, UNITED MINE WORKERS OF AMERICA, 325 U.S. 161;
ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711; INTERSTATE COMMERCE
COMMISSION V. PARKER, 326 U.S. 60; MARKHAM V. CABELL, 326 U.S. 404;
JOHN KELLEY CO. V. COMMISSIONER, 326 U.S. 521; ROLAND ELECTRICAL CO. V.
WALLING, 326 U.S. 657; MABEE V. WHITE PLAINS PUB. CO., 327 U.S. 178;
DUGGAN V. SANSBERRY, 327 U.S. 499; UNITED STATES V. CARBONE, 327 U.S.
633; WILLIAMS V. UNITED STATES, 327 U.S. 711; FEDERAL TRADE COMMISSION
V. A.P.W. PAPER CO., 328 U.S. 193; HUST V. MOORE-MCCORMACK LINES, 328
U.S. 707; UNITED STATES V. SHERIDAN, 329 U.S. 379; OKLAHOMA V. UNITED
STATES CIVIL SERVICE COMMISSION, 330 U.S. 127; UNITED STATES V. UNITED
MINE WORKERS OF AMERICA, 330 U.S. 258; UNITED BROTHERHOOD OF CARPENTERS
& JOINERS OF AMERICA V. UNITED STATES, 330 U.S. 395; AMERICAN
STEVEDORES, INC. V. PORELLO, 330 U.S. 446; INTERSTATE COMMERCE
COMMISSION V. MECHLING, 330 U.S. 567; UNITED STATES V. OGILVIE HARDWARE
CO., 330 U.S. 709; MCCULLOUGH V. KAMMERER CORP., 331 U.S. 96; AYRSHIRE
COLLIERIES CORP. V. UNITED STATES, 331 U.S. 132; WILLIAMS V. AUSTRIAN,
331 U.S. 642; JONES V. LIBERTY GLASS CO., 332 U.S. 524; FONG HAW TAN V.
PHELAN, 333 U.S. 6; HILTON V. SULLIVAN, 334 U.S. 323; UNITED STATES V.
NATIONAL CITY LINES, 334 U.S. 573; UNITED STATES V. ZAZOVE, 334 U.S.
602; UNITED STATES V. CONGRESS OF INDUSTRIAL ORGANIZATIONS, 335 U.S.
106; SHAPIRO V. UNITED STATES, 335 U.S. 1; AHRENS V. CLARK, 335 U.S.
188. 

                              APPENDIX B

        OPINIONS DURING THE PAST DECADE RESTING UPON THE

               RULE THAT THE REENACTMENT OF A STATUTE

             CARRIES GLOSS OF CONSTRUCTION PLACED

                 UPON IT BY THIS COURT 

ELECTRIC STORAGE BATTERY CO. V. SHIMADZU, 307 U.S. 5, 14; RASQUIN V.
HUMPHREYS, 308 U.S. 54; APEX HOSIERY CO. V. LEADER, 310 U.S. 469;
BROOKS V. DEWAR, 313 U.S. 354; HELVERING V. GRIFFITHS, 318 U.S. 371;
WALLING V. HALLIBURTON OIL WELL CEMENTING CO., 331 U.S. 17;
COMMISSIONER V. MUNTER, 331 U.S. 210; FRANCIS V. SOUTHERN PACIFIC CO.,
333 U.S. 445; UNITED STATES V. SOUTH BUFFALO R. CO., 333 U.S. 771; CF.
FEDERAL COMMUNICATIONS COMM'N V. COLUMBIA BROADCASTING SYSTEM OF
CALIFORNIA, 311 U.S. 132, 132-133; SEE MR. JUSTICE BLACK DISSENTING IN
WASHINGTONIAN PUBLISHING CO. V. PEARSON, 306 U.S. 30, 42; SEE MR. CHIEF
JUSTICE STONE DISSENTING IN GIROUARD V. UNITED STATES, 328 U.S. 61,
70. 

MR. JUSTICE BURTON, DISSENTING. 

EXCEPT FOR ITS IMPORTANT RESERVATION TO THE SETTLOR OF A RIGHT TO THE
NET INCOME OF THE TRUST DURING THE SETTLOR'S LIFE, THE DEED OF TRUST IN
THIS CASE  FN1  IS LARGELY COMPARABLE TO THE TRUST INSTRUMENT IN THE
SPIEGEL CASE, 335 U.S. 701.  BOTH SPEAK FOR THEMSELVES AS COMPLETE
TRANSFERS IN PRAESENTI.  NEITHER WAS MADE IN CONTEMPLATION OF DEATH. 

THE EVIDENCE OF THE FACTUAL INTENT OF THIS SETTLOR, LIKEWISE, IS
COMPARABLE TO THAT OF THE SETTLOR IN THE SPIEGEL CASE.  IN FACT, THE
AFFIRMATIVE EVIDENCE THAT THE SETTLOR INTENDED TO MAKE A TRANSFER
COMPLETE AND ABSOLUTE IN PRAESENTI IS STRONGER HERE THAN IN THE SPIEGEL
CASE.  THIS SETTLOR AVOWEDLY SOUGHT TO PROTECT NOT ONLY HIS FAMILY BUT
ALSO HIMSELF AGAINST THE POSSIBILITY OF HIS FURTHER DISPOSAL OF HIS
INTEREST IN THE CORPUS OF THE TRUST.  THE REMOTENESS OF ANY POSSIBILITY
OF A REVERTER, ARISING BY OPERATION OF LAW, IS COMPARABLE HERE TO THE
REMOTENESS OF THE ALLEGED POSSIBILITY OF A REVERTER IN THE SPIEGEL
CASE.  TWO OTHER FEATURES OF THIS CASE, HOWEVER, REQUIRE SEPARATE
CONSIDERATION. 

FIRST.  IT IS THE LAW OF NEW YORK THAT MUST DETERMINE HERE WHETHER
THE POSSIBILITY OF A REVERTER, EITHER TO THE SETTLOR OR TO HIS ESTATE,
AROSE BY OPERATION OF LAW FROM THE DEED OF TRUST.  AS THIS CASE CAME UP
FROM NEW JERSEY, IN THE THIRD CIRCUIT, WE HAVE NO ANNOUNCEMENT OF THE
LAW OF NEW YORK FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT WHICH INCLUDES NEW YORK.  FURTHERMORE, WHEN THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT RENDERED ITS JUDGMENT IN FAVOR
OF THE TAXPAYER, IT DID SO IN EXPRESS RELIANCE UPON THE OPINION OF THE
TAX COURT AND THE TAX COURT, IN TURN, DID NOT ELUCIDATE THE LAW OF NEW
YORK. 

WHILE I REST MY CONCLUSION IN FAVOR OF AFFIRMANCE UPON THE ABSENCE OF
THE FACTUAL INTENT WHICH, AS STATED IN MY DISSENT IN THE SPIEGEL CASE,
I BELIEVE IS REQUIRED BY SEC. 811(C) OF THE INTERNAL REVENUE CODE, A
SUBSTANTIAL ARGUMENT MIGHT BE MADE FOR AFFIRMANCE ON THE GROUND THAT,
UNDER THE LAW OF NEW YORK, NO POSSIBILITY OF A REVERTER AROSE FROM THIS
TRUST BY OPERATION OF LAW.  FN2  A SUBSTANTIAL ARGUMENT MIGHT ALSO BE
MADE FOR AFFIRMANCE ON THE GROUND THAT THE ALLEGED POSSIBILITY OF A
REVERTER, HERE AND ALSO IN THE SPIEGEL CASE, SHOULD BE DISREGARDED ON
THE DOCTRINE OF DE MINIMIS NON CURAT LEX. 

SECOND.  IN THE OPINION OF THE COURT IN THE INSTANT CASE, THE
JUDGMENT BELOW IS REVERSED, HOWEVER, WITHOUT FACING ANY OF THE ABOVE
GROUNDS FOR ITS AFFIRMANCE.  THIS IS DONE BY OVERRULING MAY V. HEINER,
281 U.S. 238, AND THAT ACTION HAS CARRIED WITH IT THE FOUNDATION FOR
THIS COURT'S OPINION IN HASSETT V. WELCH, 303 U.S. 303.  THE EFFECT OF
SUCH REVERSAL IS TO PLACE THIS TRUST, WHICH WAS EXECUTED IN 1924, IN
THE SAME POSITION AS THOUGH IT HAD BEEN EXECUTED AFTER THE JOINT
RESOLUTION OF MARCH 3, 1931, 46 STAT. 1516-1517.  THAT RESOLUTION MADE
THE FEDERAL ESTATE TAX APPLICABLE TO PROPERTY TRANSFERRED THEREAFTER BY
ANY DEED OF TRUST THAT RESERVED TO THE TRANSFEROR A RIGHT TO THE
POSSESSION OR ENJOYMENT OF OR THE INCOME FROM THE TRUST PROPERTY DURING
HIS LIFE.  THERE IS NO DOUBT BUT THAT THE TRANSFER IN THE INSTANT CASE
WOULD HAVE BEEN SUBJECT TO THE ESTATE TAX IF THE DEED OF TRUST HAD BEEN
EXECUTED AFTER, INSTEAD OF BEFORE, THE RESOLUTION OF MARCH 3, 1931. 
THE LEGISLATIVE HISTORY OF THAT RESOLUTION DEMONSTRATES, HOWEVER, THAT
IT WAS NOT INTENDED TO BE RETROACTIVE.  ITS PROSPECTIVE CHARACTER ALSO
CARRIED WITH IT AT LEAST A CONGRESSIONAL RECOGNITION OF THE EXISTENCE
OF SOME BASIS FOR MAKING A DISTINCTION BETWEEN PRIOR AND FUTURE
TRANSFERS OF THE TYPE DESCRIBED. 

AFTER THE EXECUTION OF THE INSTANT TRUST IN 1924 - AND CERTAINLY
BETWEEN MARCH 3, 1931 AND THE DEATH OF THE SETTLOR ON DECEMBER 11, 1939
- THERE WAS LITTLE, IF ANY, REASON FOR HIM TO CONSIDER MAKING FURTHER
DISPOSITION OF HIS RESERVED RIGHTS IN ORDER TO PROTECT HIS ESTATE FROM
THE FEDERAL ESTATE TAX.  BETWEEN 1924 AND 1939, THERE WERE HANDED DOWN
BY THIS COURT ITS DECISIONS IN MAY V. HEINER, SUPRA, ON APRIL 14, 1930;
MORSMAN V. BURNET, 283 U.S. 783, AND ITS TWO COMPANION CASES, ON MARCH
2, 1931; AND HASSETT V. WELCH, SUPRA, ON FEBRUARY 28, 1938.  IN THOSE
OF THE ABOVE DECISIONS WHICH WERE RENDERED BEFORE MARCH 3, 1931, THIS
COURT UNANIMOUSLY AND UNEQUIVOCALLY HELD THAT THE FEDERAL ESTATE TAX
WAS NOT TO BE APPLIED TO A TRUST MERELY BECAUSE OF THE RETENTION
THEREUNDER OF A RIGHT IN THE SETTLOR TO RECEIVE THE INCOME OF THE TRUST
DURING HIS LIFE.  THE ENTRY MADE BY THIS COURT IN EACH OF THE COMPANION
CASES DECIDED MARCH 2, 1931, EXPRESSLY STATED A DOUBT AS TO THE
CONSTITUTIONAL AUTHORITY OF CONGRESS TO ENACT A LAW WHICH WOULD APPLY
THE ESTATE TAX RETROACTIVELY TO TRANSFERS THAT ALREADY HAD BEEN MADE. 
THE ACTION OF CONGRESS ON MARCH 3, 1931, REFLECTED THAT DOUBT.  THE
SEVEN JUSTICES WHO PARTICIPATED IN THE CASE OF HASSETT V. WELCH, SUPRA,
IN 1938, REFRAINED FROM EXPRESSING DOUBT AS TO THE STATE OF THE LAW
BEFORE MARCH 3, 1931.  IN THAT CASE THE COURT REVIEWED CAREFULLY THE
LEGISLATIVE HISTORY THAT WAS MATERIAL TO THE CASE AND ALSO THE
ADMINISTRATIVE INTERPRETATION WHICH HAD BEEN GIVEN TO THE STATUTE.  THE
COURT CONCLUDED AS FOLLOWS (AT PP. 314-315): 

"IN VIEW OF OTHER SETTLED RULES OF STATUTORY CONSTRUCTION, WHICH
TEACH THAT A LAW IS PRESUMED, IN THE ABSENCE OF CLEAR EXPRESSION TO THE
CONTRARY, TO OPERATE PROSPECTIVELY; THAT, IF DOUBT EXISTS AS TO THE
CONSTRUCTION OF A TAXING STATUTE, THE DOUBT SHOULD BE RESOLVED IN FAVOR
OF THE TAXPAYER, WE FEEL BOUND TO HOLD THAT THE JOINT RESOLUTION OF
1931 AND SEC. 803(A) OF THE ACT OF 1932 APPLY ONLY TO TRANSFERS WITH
RESERVATION OF LIFE INCOME MADE SUBSEQUENT TO THE DATES OF THEIR
ADOPTION RESPECTIVELY.    "HOLDING THIS VIEW, WE NEED NOT CONSIDER THE
CONTENTION THAT THE STATUTES AS APPLIED TO THE TRANSFERS UNDER
CONSIDERATION DEPRIVE THE RESPONDENTS OF THEIR PROPERTY WITHOUT DUE
PROCESS IN VIOLATION OF THE FIFTH AMENDMENT." 

THUS, UP TO THE TIME OF THE SETTLOR'S DEATH IN 1939, HE NEVER WAS
GIVEN REASON, AT LEAST BY THIS COURT, TO SUSPECT THAT THE PROPERTY
WHICH HE HAD INCLUDED IN HIS 1924 DEED OF TRUST WOULD BE ADDED TO HIS
GROSS ESTATE FOR FEDERAL ESTATE TAX PURPOSES.  FN3 

THE ISSUE AS ORIGINALLY PRESENTED IN MAY V. HEINER WAS SOLELY ONE OF
STATUTORY INTERPRETATION AND THERE WERE PERSUASIVE ARGUMENTS FOR
DECIDING THE CASE EITHER WAY.  HOWEVER, THE UNANIMOUS DECISION OF THIS
COURT IN THAT CASE CHANGED THE STATUS OF THAT ISSUE.  THEREAFTER, THE
STATUTE CARRIED THE MEANING ASCRIBED TO IT BY THIS COURT.  SUCH AN
ACCEPTANCE OF THE EFFECT OF MAY V. HEINER WAS EXPRESSLY STATED IN THE
THREE PER CURIAM COMPANION DECISIONS OF MARCH 2, 1931.  THIS ACCEPTANCE
ALSO HAS BEEN EVIDENCED IN SOME DEGREE BY THE FAILURE OF CONGRESS, AT
ANY TIME, TO SET FORTH A CONTRARY VIEW ON ITS PART AS TO THE MEANING OF
ITS ORIGINAL LANGUAGE.  CONGRESS MERELY ADDED NEW LANGUAGE TO CHANGE
THE EFFECT OF THAT INTERPRETATION FOR THE FUTURE.  THE TREASURY
DEPARTMENT CONFORMED ITS REGULATIONS AND PRACTICES TO THE REASONING OF
MAY V. HEINER.  THIS COURT FURTHER ACCEDED TO THIS VIEW IN 1938 IN
HASSETT V. WELCH AND IN THE COMPANION CASE OF HELVERING V. MARSHALL,
303 U.S. 303, WHEN IT AFFIRMED THE RESPECTIVE LOWER COURT JUDGMENTS IN
THOSE CASES.  THE LOWER COURTS HAD HELD THAT CERTAIN PRE-1931
COMPARABLE TRUSTS, EXECUTED IN 1920 AND 1924, WERE NOT SUBJECT TO THE
FEDERAL ESTATE TAX.  FN4  TODAY, WITH TEN ADDITIONAL YEARS OF
ADMINISTRATIVE PRACTICE IN CONFORMITY WITH IT, THE RULE OF MAY V.
HEINER SHOULD BE SUBSTANTIALLY LESS SUBJECT TO REVERSAL THAN IN 1938. 
THE DOCTRINE OF STARE DECISIS, WITH FULL RECOGNITION OF ITS APPROPRIATE
LIMITATIONS AS EXPRESSED IN HELVERING V. HALLOCK, 309 U.S. 106, 119
122, WEIGHS STRONGLY AGAINST A REVERSAL OF MAY V. HEINER NOW.  THE
PROBLEM PRESENTED HERE IS JUST SUCH A ONE AS WAS SAID NOT TO EXIST IN
THE HALLOCK CASE.  THE PROBLEM HERE IS ONE OF REJECTING A SETTLED
STATUTORY CONSTRUCTION.  THIS COURT'S REVERSAL OF THE MAY V. HEINER
CONSTRUCTION OF THE ESTATE TAX STATUTE AS TO PRE-MARCH 3, 1931 TRUSTS
DOES RETROACTIVELY, IN 1948, WHAT THIS COURT AND CONGRESS RESPECTIVELY
DECLINED TO ATTEMPT IN 1931.  SINCE 1931, COUNTLESS TAXPAYERS DOUBTLESS
HAVE RELIED UPON AND BENEFITED BY THE INTERPRETATION ANNOUNCED IN MAY
V. HEINER.  THEY HAD NO MORE RIGHT TO SUCH BENEFITS THAN HAS THE
TAXPAYER IN THIS CASE.  IF THE GOVERNMENT, AFTER THIS REVERSAL, ISSUES
REGULATIONS TO RELIEVE, IN ALL FAIRNESS, SETTLORS WHO, IN DEMONSTRATED
RELIANCE UPON THE DECISIONS OF THIS COURT AND UPON THE PRACTICE OF THE
TREASURY DEPARTMENT, HAVE NOT DISPOSED OF THEIR RESERVED RIGHTS UNDER
PRE-MARCH 3, 1931 TRUSTS LIKE THE PRESENT ONE, SUCH SPECIAL REGULATIONS
WILL FURTHER EMPHASIZE THE UNIQUE UNFAIRNESS OF ENFORCING THE PRESENT
DECISION AGAINST THE TAXPAYER IN THE INSTANT CASE. 

BY REVERSING MAY V. HEINER THIS COURT REPUDIATES THE FINALITY OF ITS
1930 AND 1931 DECISIONS INTERPRETING THE PRE-1931 LEGISLATION.  IT
HOLDS THAT THE STATUTORY INTERPRETATION THEN ANNOUNCED BY THIS COURT OF
FINAL RESORT IS NOT FINAL, EXCEPT AS TO THE PARTIES TO THE RESPECTIVE
CASES IN WHICH THE ORIGINAL JUDGMENTS ARE RES JUDICATA.  AFTER RELIANCE
BY THE JUDICIAL, LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT
FOR 18 YEARS UPON THIS AUTHORITATIVE STATUTORY CONSTRUCTION, A REVERSAL
OF IT CAN BE JUSTIFIED ONLY BY EXTRAORDINARY CIRCUMSTANCES.  I FAIL TO
FIND SUCH CIRCUMSTANCES, EITHER IN THE MERITS OF THE DECISION, IN THE
NATURE OF THE ISSUE OR IN THE RELATIVE IMPORTANCE TO THE GENERAL PUBLIC
OF A REVERSAL AS AGAINST AN AFFIRMANCE OF THE ORIGINAL INTERPRETATION
OF THIS TAX STATUTE.  THE STATUTORY INTERPRETATION ESTABLISHED IN MAY
V. HEINER HAS A PECULIARLY LIMITED APPLICATION BECAUSE ITS
INTERPRETATION OF THE STATUTE IN RELATION TO FUTURE TRUSTS WAS CUT OFF
ON MARCH 3, 1931.  PASSAGE OF TIME WILL SOON ELIMINATE TRANSFERS MADE
PRIOR TO THAT DATE BY SETTLORS WHO ARE YET TO DIE OR WHO HAVE DIED AND
WHOSE ESTATES MAY STILL BE FORCED TO INCLUDE SUCH TRANSFERS FOR FEDERAL
ESTATE TAX PURPOSES.  THE 1931 LEGISLATION PLUS THE PASSAGE OF TIME
WOULD THUS HAVE DISPOSED OF MAY V. HEINER WITHOUT THE INJUSTICES THAT
WILL NOW ARISE FROM ITS REVERSAL. 

VALUE IS ADDED TO THE FULLY CONSIDERED DECISIONS OF THIS COURT BY OUR
OWN RESPECT FOR THEM.  FAITH IS JUSTIFIABLE THAT THIS COURT WILL
EXERCISE EXTREME SELF-RESTRAINT IN USING ITS POWER OF SELF-REVERSAL. 
WHILE THAT POWER IS ESSENTIAL IN APPROPRIATE CASES AND IS AN INHERENT
PART OF THIS COURT'S FINALITY OF JURISDICTION, EACH CASE THAT SUGGESTS
ITS USE SHOULD BE SCRUTINIZED WITH THE UTMOST CARE.  IN THE INSTANT
CASE I FIND ARGUMENTS TO SUGGEST AND SUPPORT, BUT NOT TO REQUIRE, A
CONSTRUCTION OF THE STATUTE CONTRARY TO THAT ORIGINALLY GIVEN IN MAY V.
HEINER.  I FIND NOTHING SUFFICIENT TO JUSTIFY THE REVERSAL OF THIS
COURT'S ORIGINAL CONSTRUCTION 18 YEARS AFTER THIS COURT APPROVED IT
UNANIMOUSLY AND 17 YEARS AFTER THIS COURT UNANIMOUSLY REAFFIRMED THAT
APPROVAL.  LIKEWISE, I FIND NOTHING IN THE INTERVENING DECISIONS OF
THIS COURT THAT FORCES THIS REVERSAL UPON US.  FN5  FOR THESE REASONS,
I BELIEVE THAT THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE AFFIRMED
ON THE AUTHORITY OF MAY V. HEINER AND HASSETT V. WELCH, AND UPON THE
PRINCIPLES STATED IN MY DISSENT IN THE SPIEGEL CASE, POST, P. 708. 

FN1  THIS INDENTURE MADE THE 17TH DAY OF MAY, 1924, BETWEEN FRANCOIS
L. CHURCH, OF THE BOROUGH OF BROOKLYN, CITY AND STATE OF NEW YORK
(HEREINAFTER SOMETIMES CALLED THE "SETTLOR"), PARTY OF THE FIRST PART,
AND FRANCOIS L. CHURCH AND E. DWIGHT CHURCH, OF THE BOROUGH OF
BROOKLYN, CITY AND STATE OF NEW YORK, AND CHARLES T. CHURCH, OF NEW
ROCHELLE, NEW YORK (HEREINAFTER SOMETIMES CALLED THE "TRUSTEES"),
PARTIES OF THE SECOND PART. 

WHEREAS THE SAID FRANCOIS L. CHURCH IS DESIROUS OF MAKING PROVISION
FOR ANY LAWFUL ISSUE WHICH HE MAY LEAVE AT THE TIME OF HIS DEATH AS
WELL AS PROVIDE AN INCOME FOR HIMSELF FOR LIFE IN THE MANNER
HEREINAFTER SET FORTH, 

NOW, THEREFORE, THE SAID FRANCOIS L. CHURCH, IN CONSIDERATION OF THE
SUM OF ONE DOLLAR TO HIM IN HAND PAID, THE RECEIPT WHEREOF IS HEREBY
ACKNOWLEDGED, AND THE ACCEPTANCE BY SAID PARTIES OF THE SECOND PART OF
THE TRUST HEREIN DECLARED, HAS SIMULTANEOUSLY WITH THE EXECUTION AND
DELIVERY HEREOF, SOLD, ASSIGNED, TRANSFERRED AND SET OVER AND DOES
HEREBY SELL, ASSIGN, TRANSFER AND SET OVER UNTO THE SAID FRANCOIS L.
CHURCH, E. DWIGHT CHURCH AND CHARLES T. CHURCH AS TRUSTEES, AND TO
THEIR SUCCESSORS, THE FOLLOWING SECURITIES, TO WIT: 

ONE THOUSAND (1000) SHARES OF STOCK OF CHURCH & DWIGHT CO., A
CORPORATION ORGANIZED UNDER THE LAWS OF MAINE, 

TO HAVE AND TO HOLD THE SAME, TOGETHER WITH THE MONEYS AND
INVESTMENTS INTO WHICH IN THE EXERCISE OF ANY POWER HEREINAFTER GIVEN
TO THE TRUSTEES OR BY LAW VESTED IN THEM, THE SAID DESCRIBED SECURITIES
OR THE PROCEEDS THEREOF AND SUCH MONEYS MAY FROM TIME TO TIME BE
CONVERTED IN TRUST NEVERTHELESS TO HOLD, MANAGE, INVEST AND REINVEST
THE SAID TRUST ESTATE UPON THE TRUST HEREIN CONTAINED AND WITH THE
POWERS HEREIN OR BY LAW CONFERRED UPON THE TRUSTEES, AND TO COLLECT AND
RECEIVE THE INCOME ACCRUING THEREFROM AND AFTER PAYING FROM SAID INCOME
ALL CHARGES AND EXPENSES PROPERLY CHARGEABLE AGAINST THE INCOME OF SAID
TRUST ESTATE TO PAY OVER THE NET INCOME TO THE SETTLOR, FRANCOIS L.
CHURCH, DURING THE TERM OF HIS NATURAL LIFE AND UPON THE DEATH OF THE
SETTLOR THIS TRUST SHALL CEASE AND DETERMINE AND THE TRUSTEES ARE
ORDERED AND DIRECTED TO TRANSFER AND PAY OVER THE PRINCIPAL AMOUNT OF
SAID TRUST ESTATE, WITH ALL INCREASE THEREOF AS IT SHALL THEN EXIST, TO
THE CHILD OR CHILDREN OF THE SETTLOR THEN SURVIVING THE ISSUE OF ANY
DECEASED CHILD OR CHILDREN TO TAKE THE SHARE PER STIRPES WHICH THEIR
PARENT WOULD HAVE BEEN ENTITLED TO RECEIVE IF LIVING. 

IN THE EVENT THAT THE SETTLOR SHOULD DIE LEAVING NO LAWFUL ISSUE HIM
SURVIVING THEN AND IN THAT EVENT THE TRUSTEES ARE ORDERED AND DIRECTED
TO TRANSFER AND PAY OVER THE PRINCIPAL AMOUNT OF SAID TRUST ESTATE WITH
ALL INCREASE THEREOF AS IT SHALL THEN EXIST IN EQUAL SHARES TO THE
BROTHERS AND SISTERS OF THE SETTLOR THEN SURVIVING, ANY CHILD OR
CHILDREN OF A DECEASED BROTHER OR SISTER TO TAKE THE SHARE PER STIRPES
WHICH THEIR PARENT WOULD HAVE BEEN ENTITLED TO RECEIVE IF LIVING. 

THE TRUSTEES WITH RESPECT TO SUCH TRUST ARE HEREBY AUTHORIZED AND
EMPOWERED: 

(1)  TO RETAIN THE TRUST ESTATE DURING THE CONTINUANCE OF THE TRUST
IN THE SAME INVESTMENT IN WHICH IT WAS RECEIVED BY THEM WITHOUT BEING
LIABLE TO ACCOUNT FOR ANY RESULTING LOSS; 

(2)  TO SELL AT PUBLIC OR PRIVATE SALE UPON SUCH TERMS AND FOR SUCH
PRICE OR PRICES AND AT SUCH TIME OR TIMES AND TOGETHER OR IN SUCH LOTS
OR PARCELS AS THE TRUSTEES MAY THINK PROPER THE SECURITIES HELD BY THEM
IN THE TRUST, BUT NO SUCH SALE OR SALES SHALL BE MADE BY THE TRUSTEES
WITHOUT THE CONSENT FIRST OBTAINED OF THE SETTLOR; 

LIKEWISE IN THE EVENT OF A SALE THE PROCEEDS OF SUCH SALE SHALL BE
REINVESTED BY THE TRUSTEES WITHOUT UNNECESSARY DELAY IN SECURITIES
APPROVED BY THE SETTLOR OR IN DEFAULT OF SUCH APPROVAL IN SECURITIES
AUTHORIZED FOR INVESTMENT BY TRUSTEES BY THE LAWS OF THE STATE OF NEW
YORK; 

(3)  TO COMPROMISE ANY CLAIM OR CLAIMS THAT MAY AT ANY TIME ARISE
WITH REFERENCE TO THE TRUST ESTATE OR ANY PROPERTY OR SECURITY FORMING
A PART THEREOF; 

(4)  TO EXCHANGE ANY OF THE TRUST SECURITIES FOR OTHER SECURITIES IN
CONNECTION WITH ANY REORGANIZATION OF CHURCH & DWIGHT COMPANY OR ANY
OTHER COMPANY OR COMPANIES ISSUING SECURITIES THEN BELONGING TO THE
TRUST; 

(5)  TO VOTE UPON STOCK, DIRECTLY OR BY PROXY, IN ANY MANNER AND TO
THE SAME EXTENT AS IF THE TRUSTEES HELD THE SHARES IN THEIR OWN RIGHT,
INCLUDING THE POWER TO VOTE IN FAVOR OF CONSOLIDATING OR MERGING
CORPORATIONS INTO OR WITH EACH OTHER OR INTO OR WITH OTHER
CORPORATIONS, FOR THE DISSOLUTION OR LIQUIDATION OF CORPORATIONS, THE
CREATING OR AUTHORIZATION OF INDEBTEDNESS, MORTGAGES AND OTHER LIENS
AND FOR THE ORGANIZATION OR REORGANIZATION OF CORPORATIONS AND TO
DEPOSIT SECURITIES WITH ANY REORGANIZATION COMMITTEE OR PROTECTION
COMMITTEE OF ANY CORPORATION. 

(6)  TO APPORTION IN THEIR UNCONTROLLED DISCRETION AS BETWEEN INCOME
AND PRINCIPAL AS THE TRUSTEES MAY DEEM PROPER, ANY LOSSES OR PROFITS
RESULTING FROM THE INCREASE OR DECREASE IN THE VALUE OF THE SECURITIES
OR PROPERTY WHICH MAY AT ANY TIME FORM A PART OF THE TRUST ESTATE, AND
ALSO SO TO APPORTION THE INCOME OF THE TRUST ESTATE, AND ANY LOSS IN
SAID INCOME AND ANY PROCEEDS RECEIVED UPON ACCOUNT OF INCOME, WHETHER
BY WAY OF INTEREST, DIVIDENDS, STOCK DIVIDENDS OR BY WAY OF THE
DISTRIBUTION OF CASH, BONDS, DEBENTURES, STOCKS OR OTHER SECURITIES BY
CORPORATIONS WHOSE STOCKS OR SECURITIES MAY AT ANY TIME FORM A PART OF
THE PRINCIPAL OF THE TRUST ESTATE OR OTHERWISE, AND ALSO SIMILARLY TO
APPORTION EXPENSES INCURRED IN THE ADMINISTRATION OF SAID TRUST OR IN
CONNECTION WITH THE REALIZATION UPON ANY OF SAID SECURITIES OR
PROPERTY; 

(7)  TO EMPLOY COUNSEL OR ATTORNEYS AT LAW IN CONNECTION WITH THE
ADMINISTRATION OF THE TRUST IF IN THEIR DISCRETION THE TRUSTEES DEEM IT
NECESSARY OR DESIRABLE AND TO PAY THEM REASONABLE COMPENSATION FOR
THEIR SERVICES AS AN EXPENSE OF THE ADMINISTRATION OF SAID TRUST. 

IN THE EVENT THAT ANY OF THE TRUSTEES SHOULD RESIGN OR FOR ANY OTHER
REASON CEASE TO BE A TRUSTEE SUCH VACANCY SHALL BE FILLED BY THE
APPOINTMENT OF A SUCCESSOR TRUSTEE IN WRITING BY THE SETTLOR. 

IN WITNESS WHEREOF THE PARTIES HERETO HAVE HEREUNTO SET THEIR HANDS
AND SEALS THE DAY AND YEAR FIRST ABOVE WRITTEN. 

                                      FRANCOIS L. CHURCH,

                                                      SETTLOR. 

                                      FRANCOIS L. CHURCH,

                                      E. DWIGHT CHURCH,

                                      CHARLES T. CHURCH,

                                                      TRUSTEES. 

FN2  THE RESPONDENT CITES PARTICULARLY FULTON TRUST CO. V. PHILLIPS,
218 N.Y. 573, 581, 113 N.E. 558, 559; AND MATTER OF BOWERS, 195 APP.
DIV 548, 186 N.Y.S. 912, AFF'D, 231 N.Y. 613, 132 N.E. 910; AND, AS
PRESENTING ANALOGOUS SITUATIONS IN TESTAMENTARY TRUSTS OR DISPOSITIONS,
MATTER OF ELTING, 268 APP. DIV. 74, 48 N.Y.S.2D 892, AFF'D, 294 N.Y.
941, 63 N.E.2D 123; MATTER OF MCCOMBS, 261 APP. DIV. 449, 25 N.Y.S.2D
894, AFF'D, 287 N.Y. 557, 38 N.E.2D 226. 

FN3  IT APPEARS IN THE RECORD THAT THE SETTLOR, IN 1924, RELIED UPON
THE ADVICE OF HIS FAMILY ATTORNEY AND, ASSUMING THE CONTINUANCE OF SUCH
A RELATIONSHIP, SUCH ATTORNEY IN SUBSEQUENT CONSULTATIONS MAY WELL HAVE
COUNSELED THE SETTLOR'S FURTHER POLICY IN EXPRESS RELIANCE UPON MAY V.
HEINER, 281 U.S. 238.  WITH COMPARABLE SITUATIONS EVIDENTLY IN MIND, IT
HAS BEEN SUGGESTED, IN OPINIONS WHICH RECENTLY HAVE CONSIDERED THE
POSSIBILITY OF OVERRULING MAY V. HEINER, SUPRA, THAT NO JUDGMENT
OVERRULING THAT CASE SHOULD BE RENDERED BY THIS COURT WITHOUT REMANDING
THE CASE TO THE DISTRICT COURT TO ASCERTAIN WHETHER OR NOT THE PARTIES
HAD IN FACT PLACED RELIANCE UPON THE AUTHORITY OF THAT CASE AND MAKING
SPECIAL PROVISION TO AVOID AN UNFAIR RESULT IF SUCH RELIANCE WERE FOUND
IN FACT TO HAVE EXISTED.  SEE DISSENTING OPINIONS IN HELVERING V.
PROCTOR, 140 F.2D 87, 91(C.A.2D CIR.); AND COMMISSIONER V. HALL'S
ESTATE, 153 F.2D 172, 175(C.A.2D CIR.).    FN4  THE DISCUSSION IN THE
OPINION IN HASSETT V. WELCH, SUPRA, WAS LIMITED TO THE CLAIMED EFFECT
OF THE 1931 AND 1932 AMENDMENTS.  THIS COURT'S JUDGMENT IN THAT CASE
AND IN HELVERING V. MARSHALL, SUPRA, HOWEVER, AFFIRMED THE JUDGMENTS OF
THE RESPECTIVE COURTS OF APPEALS FOR THE FIRST AND SECOND CIRCUITS. 
(IN WELCH V. HASSETT, 90 F.2D 833(C.A. 1ST CIR.), THE COURT OF APPEALS
DISCUSSED AND RELIED UPON MCCORMICK V. BURNET, 283 U.S. 784, MORSMAN V.
BURNET, 283 U.S. 783, BURNET V. NORTHERN TRUST CO., 283 U.S. 782, MAY
V. HEINER, SUPRA, AND REINECKE V. NORTHERN TRUST CO., 278 U.S. 339.  IN
COMMISSIONER V. MARSHALL, 91 F.2D 1010(C.A.2D CIR.), THE COURT OF
APPEALS RELIED PRIMARILY UPON THE WELCH DECISION IN THE FIRST
CIRCUIT.)  THOSE RESPECTIVE COURTS OF APPEALS ACCORDINGLY HAD HELD THAT
THE 1931 AND 1932 AMENDMENTS WERE INAPPLICABLE TO A TRUST WHICH WAS
EXECUTED IN 1924(AND REAFFIRMED IN 1926) BY A SETTLOR WHO DIED IN 1932,
AND TO ANOTHER WHICH WAS EXECUTED IN 1920 BY A SETTLOR WHO DIED IN
1933.  THEY ALSO HELD THAT, UNDER SEC. 302(C) OF THE REVENUE ACT OF
1926, C. 27, 44 STAT. 9, 70, THE COMMISSIONER COULD NOT LAWFULLY
REQUIRE THE TRUSTEED PROPERTY TO BE INCLUDED FOR FEDERAL ESTATE TAX
PURPOSES IN THE GROSS ESTATES OF THE RESPECTIVE SETTLOR-DECEDENTS. 
THIS COURT'S AFFIRMANCE OF THOSE JUDGMENTS WAS, THEREFORE, A
CONFIRMATION OF ITS ORIGINAL HOLDING THAT, BEFORE THE 1931 AND 1932
AMENDMENTS, THIS STATUTE DID NOT RENDER TRUST PROPERTY SUBJECT TO THE
FEDERAL ESTATE TAX MERELY BECAUSE THE SETTLOR IN TRANSFERRING THE
PROPERTY TO HIS TRUSTEES HAD RESERVED FOR HIMSELF A RIGHT TO THE INCOME
OF THAT PROPERTY DURING HIS LIFE AND HAD PROVIDED FOR THE DISTRIBUTION
OF THE CORPUS OF THE TRUST AT HIS DEATH IN THE MANNER STATED IN THOSE
CASES.  THE PROSPECTIVE LANGUAGE OF THE 1931 AND 1932 AMENDMENTS LEFT
THE MEANING OF THE STATUTE UNCHANGED AS TO TRUSTS EXECUTED BEFORE MARCH
3, 1931.  IT IS THAT UNCHANGED MEANING WHICH IS APPLICABLE IN THE
INSTANT CASE. 

FN5  THE STATUS OF MAY V. HEINER HAS BEEN MENTIONED BY THIS COURT
FROM TIME TO TIME WITHOUT CALLING FORTH ANY REPUDIATION OF ITS
AUTHORITY BY A MAJORITY OF THE COURT.  SEE HELVERING V. HALLOCK, 309
U.S. 106, 120, N. 7, AND DISSENTING OPINIONS AT 123, 126 ET SEQ.;
FIDELITY-PHILADELPHIA TRUST CO. V. ROTHENSIES, 324 U.S. 108, CONCURRING
OPINION AT 113.  THE EFFECT UPON IT OF THE HALLOCK CASE HAS BEEN
CONSIDERED MANY TIMES BY FEDERAL COURTS WITH A RESULTING ADHERENCE TO
BOTH CASES.  "THE OPINION OF THE MAJORITY IN HELVERING V. HALLOCK,
SUPRA, DID NOT EXPLICITLY, OR BY INFERENCE FROM ANYTHING SAID, DECLARE
THAT MAY V. HEINER, SUPRA,  ... WAS NO LONGER LAW."  CIRCUIT JUDGE L.
HAND IN HELVERING V. PROCTOR, 140 F.2D 87, 88(C.A.2D CIR.). SEE ALSO,
COMMISSIONER V. HALL'S ESTATE, 153 F.2D 172(C.A.2D CIR.); COMMISSIONER
V. SINGER'S ESTATE, 161 F.2D 15(C.A.2D CIR.); COMMISSIONER V. KELLOGG,
119 F.2D 54(C.A.3D CIR.); SCHULTZ V. UNITED STATES, 140 F.2D
945(C.A.8TH CIR.); UNITED STATES V. BROWN, 134 F.2D 372(C.A.9TH CIR.);
NEW YORK TRUST CO. V. UNITED STATES, 100 CT. CL. 311, 51 F.SUPP.  733;
ESTATE OF MATTHEWS, 3 T.C. 525.  WHILE THESE DECISIONS ARE NOT BINDING
UPON THIS COURT AS PRECEDENTS, THEY ARE DECISIONS WHICH THOSE COURTS
PROPERLY REACHED IN DETERMINING THE BINDING FORCE, UPON THEM, OF OUR
DECISIONS IN MAY V. HEINER AND HELVERING V. HALLOCK.  THEY HAVE AN
APPROPRIATE BEARING UPON THE EXERCISE OF OUR DISCRETION TO OVERRULE MAY
V. HEINER AT THIS LATE DATE. 
..END :



















ESTATE OF SPIEGEL V. COMM'R, 335 U.S. 701 


NO. 3.  ARGUED OCTOBER 24, 1947.  - REARGUED OCTOBER 11-12, 1948.  -
DECIDED JANUARY 17, 1949.  - 159 F.2D 257, AFFIRMED. 


IN 1920 DECEDENT, A RESIDENT OF ILLINOIS, MADE A TRANSFER IN TRUST OF
CERTAIN STOCKS TO HIMSELF AND ANOTHER.  HE DIED IN 1940.  DURING HIS
LIFE THE TRUST INCOME WAS TO BE DIVIDED AMONG HIS THREE CHILDREN; IF
THEY DID NOT SURVIVE HIM, TO ANY OF THEIR SURVIVING CHILDREN.  ON HIS
DEATH THE CORPUS WAS TO BE DISTRIBUTED IN THE SAME MANNER.  BUT NO
PROVISION WAS MADE FOR DISTRIBUTION OF THE CORPUS AND ITS ACCUMULATED
INCOME SHOULD THE DECEDENT SURVIVE ALL OF HIS CHILDREN AND
GRANDCHILDREN.  THE TAX COURT DETERMINED THAT THE VALUE OF THE CORPUS
OF THE TRUST WAS NOT INCLUDIBLE IN THE GROSS ESTATE OF THE DECEDENT
UNDER SEC. 811(C) OF THE INTERNAL REVENUE CODE.  THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT REVERSED, HOLDING THAT UNDER ILLINOIS LAW THERE
WAS A POSSIBILITY OF REVERTER TO THE DECEDENT AND THAT THIS MADE THE
CORPUS OF THE TRUST INCLUDIBLE IN HIS GROSS ESTATE UNDER SEC. 811(C). 
HELD: 

1.  THIS COURT ACCEPTS THE DETERMINATION OF THE COURT OF APPEALS THAT
UNDER ILLINOIS LAW THE SETTLOR HAD A RIGHT OF REVERTER; THIS RENDERS
THE TRUST ONE "INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR
AFTER HIS DEATH," WITHIN THE MEANING OF SEC. 811(C) OF THE INTERNAL
REVENUE CODE; AND THE VALUE OF THE CORPUS OF THE TRUST AT THE SETTLOR'S
DEATH WAS INCLUDIBLE IN HIS GROSS ESTATE FOR PURPOSES OF THE FEDERAL
ESTATE TAX.  PP. 705-707. 

(A)  THE TAXABILITY OF A TRUST CORPUS UNDER THE "POSSESSION OR
ENJOYMENT" PROVISION OF SEC. 811(C) DOES NOT HINGE ON A SETTLOR'S
MOTIVES, BUT DEPENDS ON THE NATURE AND OPERATIVE EFFECT OF THE TRUST
TRANSFER.  P. 705. 

(B)  A TRUST TRANSACTION CANNOT BE HELD TO ALIENATE ALL OF A
SETTLOR'S "POSSESSION OR ENJOYMENT" UNDER SEC. 811(C) UNLESS IT EFFECTS
A BONA FIDE TRANSFER IN WHICH THE SETTLOR, ABSOLUTELY, UNEQUIVOCALLY,
IRREVOCABLY, AND WITHOUT POSSIBLE RESERVATIONS, PARTS WITH ALL OF HIS
TITLE AND ALL OF HIS POSSESSION AND ALL OF HIS ENJOYMENT OF THE
TRANSFERRED PROPERTY.  AFTER SUCH A TRANSFER HAS BEEN MADE, THE SETTLOR
MUST BE LEFT WITH NO PRESENT LEGAL TITLE IN THE PROPERTY, NO POSSIBLE
REVERSIONARY INTEREST IN THAT TITLE, AND NO RIGHT TO POSSESS OR TO
ENJOY THE PROPERTY THEN OR THEREAFTER.  COMMISSIONER V. ESTATE OF
CHURCH, ANTE, P. 632.  P. 705. 

(C)  IT IS IMMATERIAL WHETHER A PRESENT OR FUTURE INTEREST, ABSOLUTE
OR CONTINGENT, REMAINS IN THE SETTLOR BECAUSE HE DELIBERATELY RESERVES
IT OR BECAUSE, WITHOUT CONSIDERING THE CONSEQUENCES, HE CONVEYS AWAY
LESS THAN ALL OF HIS PROPERTY OWNERSHIP AND ATTRIBUTES, PRESENT OR
PROSPECTIVE.  P. 705. 

(D)  THE TAX COURT HAVING FOUND THAT THE TRUST CONTAINED NO PROVISION
FOR DISPOSITION OF THE CORPUS SHOULD THE SETTLOR OUTLIVE THE
BENEFICIARIES, AND PETITIONER NOT HAVING CONTENDED THAT IT WAS DENIED
AN OPPORTUNITY TO PRESENT ANY RELEVANT EVIDENCE CONCERNING OWNERSHIP,
POSSESSION, OR ENJOYMENT, REMAND OF THE CASE TO THE TAX COURT FOR
FURTHER FINDINGS OF FACT IS UNNECESSARY.  PP. 706-707. 

2.  THE FACT THAT THE MONETARY VALUE OF THE SETTLOR'S CONTINGENT
REVERSIONARY INTEREST IS SMALL IN COMPARISON WITH THE TOTAL VALUE OF
THE CORPUS DOES NOT RENDER THE "POSSESSION OR ENJOYMENT" PROVISION OF
SEC. 811(C) INAPPLICABLE.  P. 707. 

3.  THE RULING OF THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT, WHICH
CIRCUIT EMBRACES ILLINOIS, THAT UNDER ILLINOIS LAW WHEN ALL TRUST
BENEFICIARIES DIE THE TRUST CORPUS REVERTS TO THE DONOR, IS NOT PLAINLY
WRONG AND THIS COURT DOES NOT DISTURB IT.  PP. 707-708. 

ESTATE OF SPIEGEL ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

THE COMMISSIONER DETERMINED THAT THE CORPUS AND CERTAIN ACCUMULATED
INCOME OF THE TRUST IN QUESTION WAS INCLUDIBLE IN THE GROSS ESTATE OF
THE DECEDENT FOR PURPOSES OF THE FEDERAL ESTATE TAX.  THE TAX COURT
REVERSED.  THE COURT OF APPEALS REVERSED.  159 F.2D 257.  THIS COURT
GRANTED CERTIORARI.  331 U.S. 798.  AFFIRMED, P. 708. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A FEDERAL ESTATE TAX CONTROVERSY.  HERE, AS IN COMMISSIONER
V. CHURCH, ANTE, P. 632, WE GRANTED CERTIORARI TO CONSIDER QUESTIONS
DEPENDENT UPON THE MEANING AND APPLICATION OF A PROVISION OF SEC.
811(C) OF THE INTERNAL REVENUE CODE.  47 STAT. 169, 279, AS AMENDED, 26
U.S.C. SEC. 811(C).  THE PARTICULAR PROVISION REQUIRES INCLUDING IN A
DECEDENT'S GROSS ESTATE THE VALUE AT HIS DEATH OF ALL PROPERTY "TO THE
EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS AT ANY TIME
MADE A TRANSFER, BY TRUST OR OTHERWISE  ...  INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT OR AFTER HIS DEATH  ...  " 

IN 1920 SIDNEY M. SPIEGEL, A RESIDENT OF ILLINOIS, MADE A TRANSFER BY
TRUST OF CERTAIN STOCKS TO HIMSELF AND ANOTHER.  HE DIED IN 1940. 
DURING HIS LIFE THE TRUST INCOME WAS TO BE DIVIDED AMONG HIS THREE
CHILDREN; IF THEY DID NOT SURVIVE HIM, TO ANY OF THEIR SURVIVING
CHILDREN.  ON HIS DEATH THE TRUST PROVIDED THAT THE CORPUS WAS TO BE
DISTRIBUTED IN THE SAME MANNER.  BUT NO PROVISION WAS MADE FOR
DISTRIBUTION OF THE CORPUS AND ITS ACCUMULATED INCOME SHOULD MR.
SPIEGEL SURVIVE ALL OF HIS CHILDREN AND GRANDCHILDREN.  FOR THIS REASON
THE GOVERNMENT HAS CONTENDED THAT UNDER CONTROLLING STATE LAW THE
PROPERTY WOULD HAVE REVERTED TO MR. SPIEGEL HAD HE SURVIVED HIS
DESIGNATED BENEFICIARIES. 

THE VALUE OF THE CORPUS OF THIS TRUST WAS NOT INCLUDED IN THE SPIEGEL
ESTATE TAX RETURN.  THE COMMISSIONER CONCLUDED THAT ITS VALUE WITH
ACCUMULATED INCOME, ABOUT $1,140,000, SHOULD HAVE BEEN INCLUDED IN THE
GROSS ESTATE UNDER SEC. 811(C).  THE TAX COURT HELD OTHERWISE IN AN
UNREPORTED OPINION.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
REVERSED.  159 F.2D 257.  IT HELD THAT THE POSSESSION OR ENJOYMENT
PROVISION OF SEC. 811(C) REQUIRED INCLUSION OF THE VALUE OF THE TRUST
PROPERTY AND ACCUMULATED INCOME UNDER THE RULE DECLARED IN HELVERING V.
HALLOCK, 309 U.S. 106, BECAUSE UNDER STATE LAW THE TRUST AGREEMENT LEFT
THE WAY OPEN FOR THE PROPERTY TO REVERT TO MR. SPIEGEL IN CASE HE
OUTLIVED ALL THE BENEFICIARIES.  THIS HOLDING RESTED ON THE AGREEMENT
OF PARTIES THAT WHETHER THERE WAS A RIGHT OF REVERTER DEPENDED ON
ILLINOIS LAW, AND THE COURT'S CONCLUSION THAT UNDER ILLINOIS LAW A
RIGHT OF REVERTER DID EXIST.  FN1 

THE HALLOCK CASE ON WHICH THE COURT OF APPEALS RELIED HELD THAT THE
VALUE OF TRUST PROPERTIES SHOULD HAVE BEEN INCLUDED IN A SETTLOR'S
GROSS ESTATE UNDER THE "POSSESSION OR ENJOYMENT" PROVISION WHERE TRUST
AGREEMENTS HAD EXPRESSLY PROVIDED THAT THE CORPUS SHOULD REVERT TO THE
SETTLOR IN THE EVENT HE OUTLIVED THE BENEFICIARIES.  THE TAXPAYER HAS
CONTENDED HERE, AS IN THE TAX COURT AND THE COURT OF APPEALS, THAT THE
HALLOCK RULE IS NOT APPLICABLE TO THIS TRUST, WHERE THE SETTLOR'S
CHANCE TO GET BACK HIS PROPERTY DEPENDED ON STATE LAW AND NOT ON AN
EXPRESS RESERVATION BY THE SETTLOR.  THIS CONTENTION OF THE TAXPAYER
RESTS IN PART ON THE ARGUMENT THAT SEC. 811(C) IMPOSES A TAX ONLY WHERE
IT CAN BE SHOWN THAT THE SETTLOR'S INTENT WAS TO RESERVE FOR HIMSELF A
CONTINGENT REVERSIONARY INTEREST IN THE PROPERTY.  ANOTHER CONTENTION
IS THAT THE VALUE OF THIS CONTINGENT REVERSIONARY INTEREST WAS SO SMALL
IN COMPARISON WITH THE TOTAL VALUE OF THE CORPUS THAT THE HALLOCK RULE
SHOULD NOT BE APPLIED.  A THIRD CONTENTION IS THAT THE COURT OF APPEALS
HOLDING WAS ERRONEOUS IN THAT UNDER ILLINOIS LAW THE CORPUS OF THIS
TRUST WOULD NOT HAVE REVERTED TO THE SETTLOR HAD ALL THE BENEFICIARIES
DIED WHILE THE SETTLOR WAS STILL LIVING.  PETITIONERS URGE THAT IN THAT
EVENT THE ILLINOIS COURTS WOULD HAVE HELD THAT THE CORPUS PASSED TO THE
HEIRS OF THE LAST SURVIVING BENEFICIARY. 

WE HOLD THAT THE HALLOCK RULE WAS RIGHTLY APPLIED BY THE COURT OF
APPEALS AND WE ACCEPT ITS HOLDING AS TO THE APPLICABLE ILLINOIS LAW. 

FIRST.  IN COMMISSIONER V. CHURCH, ANTE, P. 632, WE HAVE DISCUSSED
THE HALLOCK HOLDING IN RELATION TO THE SCOPE OF THE "POSSESSION OR
ENJOYMENT" PROVISION OF SEC. 811(C) AND NEED NOT ELABORATE WHAT WE SAID
THERE.  WHAT WE SAID DEMONSTRATES THAT THE TAXABILITY OF A TRUST CORPUS
UNDER THIS PROVISION OF SEC. 811(C) DOES NOT HINGE ON A SETTLOR'S
MOTIVES, BUT DEPENDS ON THE NATURE AND OPERATIVE EFFECT OF THE TRUST
TRANSFER.  IN THE CHURCH CASE WE STATED THAT A TRUST TRANSACTION CANNOT
BE HELD TO ALIENATE ALL OF A SETTLOR'S "POSSESSION OR ENJOYMENT" UNDER
SEC. 811(C) UNLESS IT EFFECTS "A BONA FIDE TRANSFER IN WHICH THE
SETTLOR, ABSOLUTELY, UNEQUIVOCALLY, IRREVOCABLY, AND WITHOUT POSSIBLE
RESERVATIONS, PARTS WITH ALL OF HIS TITLE AND ALL OF HIS POSSESSION AND
ALL OF HIS ENJOYMENT OF THE TRANSFERRED PROPERTY.  AFTER SUCH A
TRANSFER HAS BEEN MADE, THE SETTLOR MUST BE LEFT WITH NO PRESENT LEGAL
TITLE IN THE PROPERTY, NO POSSIBLE REVERSIONARY INTEREST IN THAT TITLE,
AND NO RIGHT TO POSSESS OR TO ENJOY THE PROPERTY THEN OR THEREAFTER. 
IN OTHER WORDS SUCH A TRANSFER MUST BE IMMEDIATE AND OUT AND OUT, AND
MUST BE UNAFFECTED BY WHETHER THE GRANTOR LIVES OR DIES."  WE ADD TO
THAT STATEMENT, IF IT CAN BE CONCEIVED OF AS AN ADDITION, THAT IT IS
IMMATERIAL WHETHER SUCH A PRESENT OR FUTURE INTEREST, ABSOLUTE OR
CONTINGENT, REMAINS IN THE GRANTOR BECAUSE HE DELIBERATELY RESERVES IT
OR BECAUSE, WITHOUT CONSIDERING THE CONSEQUENCES, HE CONVEYS AWAY LESS
THAN ALL OF HIS PROPERTY OWNERSHIP AND ATTRIBUTES, PRESENT OR
PROSPECTIVE.  IN EITHER EVENT THE SETTLOR HAS NOT PARTED WITH ALL OF
HIS PRESENTLY EXISTING OR FUTURE CONTINGENT INTERESTS IN THE PROPERTY
TRANSFERRED.  HE HAS THEREFORE NOT MADE THAT "COMPLETE" KIND OF TRUST
TRANSFER THAT SEC. 811(C) COMMANDS AS A PREREQUISITE TO A SHOWING THAT
HE HAS CERTAINLY AND IRREVOCABLY PARTED WITH HIS "POSSESSION OR
ENJOYMENT."  ANY REQUIREMENT LESS THAN THAT WHICH WE HAVE OUTLINED,
SUCH AS A POSTDEATH ATTEMPT TO PROBE THE SETTLOR'S THOUGHTS IN REGARD
TO THE TRANSFER, WOULD PARTIALLY IMPAIR THE EFFECTIVENESS OF THE
"POSSESSION OR ENJOYMENT" PROVISION AS AN INSTRUMENT TO FRUSTRATE
ESTATE TAX EVASIONS.  TO THIS EXTENT IT WOULD DEFEAT THE PRECISE
PURPOSE FOR WHICH THE PROVISION WAS ORIGINATED AND WHICH PROMPTED
CONGRESS TO INCLUDE IT IN SEC. 811(C). 

DETERMINATION OF SUCH ISSUES AS OWNERSHIP, POSSESSION, ENJOYMENT,
WHETHER TRANSFERS HAVE BEEN MADE AND THE REACH OF THOSE TRANSFERS, MAY
INVOLVE MANY QUESTIONS OF FACT.  AND WE HAVE HELD IN MANY CASES THAT TO
THE EXTENT THE DETERMINATION OF SUCH ISSUES DEPENDS UPON FACT FINDING,
MANY DIFFERENT FACTS MAY BE RELEVANT.  THESE FACT ISSUES IN FEDERAL TAX
CASES ARE FOR THE TAX COURT TO DECIDE IN CASES BROUGHT BEFORE IT. 

IN THIS CASE THE TAX COURT MADE FINDINGS OF FACT AND THEN DECIDED
AGAINST THE GOVERNMENT.  IT DID SO, HOWEVER, BY HOLDING AS A MATTER OF
LAW THAT THOSE FACTS DID NOT REQUIRE INCLUSION OF THE VALUE OF THIS
CORPUS IN THE SETTLOR'S ESTATE.  FN2  BUT THE TAX COURT'S FINDINGS OF
FACT SHOWED THAT THE TRUST CONTAINED NO PROVISION FOR DISPOSITION OF
THE CORPUS SHOULD THE SETTLOR OUTLIVE THE BENEFICIARIES.  THIS FINDING
OF FACT, WHICH WE ACCEPT, PLUS THE COURT OF APPEALS DETERMINATION OF
CONTROLLING ILLINOIS LAW, WITHOUT MORE, BRINGS THIS TRUST TRANSACTION
WITHIN THE SCOPE OF THE POSSESSION OR ENJOYMENT PROVISION OF SEC.
811(C) AS WE HAVE INTERPRETED THAT SECTION IN THE HALLOCK AND CHURCH
CASES.  AND PETITIONER HAS NOT CONTENDED THAT IT WAS DENIED AN
OPPORTUNITY TO PRESENT ANY RELEVANT EVIDENCE CONCERNING OWNERSHIP,
POSSESSION, OR ENJOYMENT.  IT IS THEREFORE NOT NECESSARY TO REMAND THE
CASE TO THE TAX COURT FOR ANY FURTHER FINDING OF FACTS.  SEE HORMEL V.
HELVERING, 312 U.S. 552, 559-560. 

SECOND.  IT IS CONTENDED THAT SINCE THE MONETARY VALUE OF THE
SETTLOR'S CONTINGENT REVERSIONARY INTEREST IS SMALL IN COMPARISON WITH
THE TOTAL VALUE OF THE CORPUS, THE POSSESSION OR ENJOYMENT PROVISION OF
SEC. 811(C) SHOULD NOT BE APPLIED.  BUT INCLUSION OF A TRUST CORPUS
UNDER THAT PROVISION IS NOT DEPENDENT UPON THE VALUE OF THE
REVERSIONARY INTEREST.  FIDELITY-PHILADELPHIA TRUST CO. V. ROTHENSIES,
324 U.S. 108, 112; COMMISSIONER V. ESTATE OF FIELD, 324 U.S. 113, 116;
SEE GOLDSTONE V. UNITED STATES, 325 U.S. 687, 691.  THE QUESTION IS NOT
HOW MUCH IS THE VALUE OF A RESERVATION, BUT WHETHER AFTER A TRUST
TRANSFER, CONSIDERED BY CONGRESS TO BE A POTENTIALLY DANGEROUS TAX
EVASION TRANSACTION, SOME PRESENT OR CONTINGENT RIGHT OR INTEREST IN
THE PROPERTY STILL REMAINS IN THE SETTLOR SO THAT FULL AND COMPLETE
TITLE, POSSESSION OR ENJOYMENT DOES NOT ABSOLUTELY PASS TO THE
BENEFICIARIES UNTIL AT OR AFTER THE SETTLOR'S DEATH.  SEE SMITH V.
SHAUGHNESSY, 318 U.S. 176, 181. 

THIRD.  IT IS CONTENDED THAT UNDER ILLINOIS LAW THE CORPUS OF THIS
TRUST WOULD NOT HAVE REVERTED TO THE SETTLOR HAD HE OUTLIVED THE
BENEFICIARIES.  THE RECORD REVEALS THAT THE STATE LAW PROBLEM HERE IS
NOT AN EASY ONE, BUT UNDER THIS COURT'S DECISION IN MEREDITH V. WINTER
HAVEN, 320 U.S. 228, THE DIFFICULTY INVOLVED DID NOT RELIEVE THE COURT
OF APPEALS OF ITS DUTY TO MAKE A DECISION.  THE QUESTIONED RULING WAS
MADE BY THREE JUDGES WHO ARE CONSTANTLY REQUIRED TO PASS UPON ILLINOIS
LAW QUESTIONS.  ONE OF THE THREE JUDGES HAS LONG BEEN A RESIDENT AND
LAWYER OF ILLINOIS.  EXAMINATION OF THE ILLINOIS STATE COURT OPINIONS
PRESSED UPON US LEAVES US UNABLE TO SAY WITH ANY DEGREE OF CERTAINTY
THAT THE COURT OF APPEALS HOLDING WAS WRONG.  IT IS CERTAINLY NEITHER
NOVEL NOR UNREASONABLE FOR STATE LAW TO PROVIDE THAT WHEN ALL TRUST
BENEFICIARIES DIE THE TRUST CORPUS SHOULD REVERT TO THE DONOR.  IT
WOULD BE WHOLLY UNPROFITABLE FOR US TO ANALYZE ILLINOIS CASES ON THE
POINT HERE URGED.  IT IS SUFFICIENT FOR US TO SAY THAT WE THINK
REASONABLE ARGUMENTS CAN BE MADE BASED ON ILLINOIS CASES TO SUPPORT A
DETERMINATION OF THIS QUESTION EITHER FOR OR AGAINST THE PETITIONER'S
CONTENTION.  UNDER THESE CIRCUMSTANCES WE WILL FOLLOW OUR GENERAL
POLICY AND LEAVE UNDISTURBED THIS COURT OF APPEALS HOLDING ON A
QUESTION OF STATE LAW.  FN3 

ALL OTHER ARGUMENTS OF THE PETITIONERS HAVE BEEN NOTED AND WE FIND
THEM WITHOUT MERIT.  AFFIRMED. 

FN1  THIS COURT OF APPEALS INTERPRETATION AND APPLICATION OF SEC.
811(C) WAS IN CONFLICT WITH THE HOLDING OF THE THIRD CIRCUIT IN
COMMISSIONER OF INTERNAL REVENUE V. CHURCH'S ESTATE, 161 F.2D 11.  WE
GRANTED CERTIORARI IN BOTH CASES, ARGUMENTS HAVE BEEN HEARD TOGETHER,
AND WE HAVE TODAY REVERSED THE CHURCH CASE, ANTE, P. 632. 

FN2  THE TAX COURT'S CONCLUSION OF LAW THAT THE "POSSESSION OR
ENJOYMENT" CLAUSE OF SEC. 811(C) WAS INAPPLICABLE TO THE FACTS OF THIS
TRUST RESTED IN PART ON ITS BELIEF THAT REINECKE V. NORTHERN TRUST CO.,
278 U.S. 339, HAD DECIDED THE ISSUE.  BUT THE HALLOCK CASE WAS DECIDED
AFTER REINECKE, AND THE QUESTION HERE INVOLVED WAS NOT SPECIFICALLY
RAISED IN THE REINECKE CASE.  NOR DID THE COURT'S OPINION IN THAT CASE,
WRITTEN BY THE LATE CHIEF JUSTICE STONE, INDICATE THAT A TRANSFER OF
BARE LEGAL TITLE IN A TRANSFER MUST ALWAYS BE ACCEPTED AS A CONCLUSIVE
SHOWING THAT THE POSSESSION AND ENJOYMENT PROVISION OF SEC. 811(C)
CANNOT BE APPLIED TO THE TRUST CORPUS.  CF. COURT'S OPINION IN HARRISON
V. SCHAFFNER, 312 U.S. 579, WRITTEN BY CHIEF JUSTICE STONE. 

FN3  HELVERING V. STUART, 317 U.S. 154, 162-165; CF. STEELE V.
GENERAL MILLS, 329 U.S. 433. 

MR. JUSTICE JACKSON DISSENTS. 

(FOR OPINION OF MR. JUSTICE REED, CONCURRING IN THIS DECISION BUT
DISSENTING FROM THAT IN COMMISSIONER V. ESTATE OF CHURCH, ANTE, P. 632,
SEE ANTE, P. 651.) 

(FOR OPINION OF MR. JUSTICE FRANKFURTER, DISSENTING FROM THIS
DECISION AND ALSO THAT IN COMMISSIONER V. ESTATE OF CHURCH, ANTE, P.
632, SEE ANTE, P. 667.) 

MR. JUSTICE BURTON, DISSENTING. 

TODAY'S DECISION ADDS TO THE DIFFICULTIES IN THIS TROUBLED FIELD OF
ESTATE TAX LAW.  IT MAY, HOWEVER, SERVE A GOOD PURPOSE IF IT LEADS TO A
SIMULTANEOUS CONSIDERATION BY CONGRESS OF THE RELATED FIELDS OF INCOME,
GIFT AND ESTATE TAXATION IN CONNECTION WITH THE CREATION OR TRANSFER OF
FUTURE INTERESTS. 

 FIVE ALTERNATIVES. 

AT LEAST FIVE ALTERNATIVE PROPOSALS HAVE BEEN PRESENTED TO US FOR THE
SOLUTION OF THIS CASE.  THE FIRST CALLS FOR THE REVERSAL OF REINECKE V.
NORTHERN TRUST CO., 278 U.S. 339, AND A DECISION AGAINST THE
TAXPAYERS.  THE SECOND CALLS FOR THE EXTENSION TO THIS CASE OF THE
DOCTRINE OF HELVERING V. CLIFFORD, 309 U.S. 331, AND A REMAND TO
DETERMINE FURTHER FACTS.  THE THIRD, FOURTH AND FIFTH FOLLOW EXISTING
PRECEDENTS MORE CLOSELY.  EACH RECOGNIZES THAT, IF NO POSSIBILITY OF A
REVERTER  FN1  AROSE IN FAVOR OF THE SETTLOR, BY OPERATION OF LAW,
UNDER THE TRUST INSTRUMENT BEFORE US, THE PROPERTY THEREBY PLACED IN
TRUST IS NOT REQUIRED BY SEC. 811(C) OF THE INTERNAL REVENUE CODE TO BE
INCLUDED IN THE GROSS ESTATE OF THE SETTLOR FOR FEDERAL ESTATE TAX
PURPOSES.  THE THIRD PROPOSAL FINDS THAT THE LAW TO BE APPLIED, FOR THE
ABOVE PURPOSE, IS THAT OF ILLINOIS.  IT CALLS FOR A DECISION IN FAVOR
OF THE TAXPAYERS BECAUSE, UNDER A CORRECT APPLICATION OF THAT LAW, THE
REQUIRED REVERTER COULD NOT ARISE.  THE FOURTH PROPOSAL CLAIMS OR
ASSUMES THAT A POSSIBILITY OF A REVERTER DID ARISE UNDER THIS TRUST BY
OPERATION OF THE LAW OF ILLINOIS IN FAVOR OF THE SETTLOR.  IT, HOWEVER,
DECLINES TO APPLY THE RULE OF DE MINIMIS NON CURAT LEX AND, BY
DECLINING TO LOOK FURTHER, IT REACHES A DECISION AGAINST THE
TAXPAYERS.  THIS IS THE ALTERNATIVE WHICH HAS BEEN ADOPTED IN THE
OPINION OF THE COURT.  THE FIFTH PROPOSAL IS LIKE THE FOURTH EXCEPT
THAT IT DOES LOOK FURTHER AND IT RECOGNIZES THAT SEC. 811(C) REQUIRES A
FINDING OF THE SETTLOR'S ACTUAL INTENT IN ORDER TO MAKE THAT SECTION
APPLICABLE.  IT THEN CONCLUDES THAT IN THE INSTANT CASE THE REQUIRED
INTENT IS ABSENT.  THE FIFTH PROPOSAL, THEREFORE, CALLS FOR A DECISION
IN FAVOR OF THE TAXPAYERS OR AT LEAST CALLS FOR A REMAND TO DETERMINE
THE EXISTENCE, IF ANY, OF THE SETTLOR'S REQUIRED INTENT.  I BELIEVE
THAT ONLY THE THIRD AND FIFTH PROPOSALS PRESENT A SOUND SOLUTION.  EACH
OF THOSE TWO IS FOUNDED UPON EXISTING PRECEDENTS, REACHES AN EQUITABLE
RESULT AND CONTRIBUTES TO THE CERTAINTY RATHER THAN TO THE UNCERTAINTY
OF THE APPLICATION OF THE TAX, PENDING LEGISLATIVE RECONSIDERATION OF
THE ENTIRE SUBJECT.  I PREFER THE FIFTH BECAUSE IT AVOIDS COMPLETE
DEPENDENCE UPON THE LAW OF A STATE.  IF THE FIFTH PROPOSAL IS NOT
ACCEPTED, I BELIEVE THAT THE PRESENT STATUS OF THE LAW OF ILLINOIS
REQUIRES ACCEPTANCE OF THE THIRD. 

           I. THE FIRST PROPOSAL IS THAT THE REINECKE CASE

BE OVERRULED. 

THE LACK OF JUDICIAL SUPPORT FOR OVERRULING REINECKE V. NORTHERN
TRUST CO., SUPRA, AT THIS LATE DAY, MAKES IT UNNECESSARY TO CONSIDER
THIS PROPOSAL AT LENGTH.  IT HAS BEEN, HOWEVER, STRONGLY URGED UPON US.
THE SPIEGEL TRUST INSTRUMENT IS SO SIMPLE AND COMPLETE IN ITS TERMS
FN2  THAT TO APPLY THE FEDERAL ESTATE TAX TO ITS CORPUS MERELY ON THE
STRENGTH OF THOSE TERMS WOULD REQUIRE A REVERSAL OF THE REINECKE CASE. 
ACCORDINGLY, ON THE REARGUMENT OF THIS CASE, WE ASKED THE FOLLOWING
QUESTION: 

"1.  ASSUMING THAT, UNDER THE APPLICABLE STATE LAW, THERE WAS NO
POSSIBILITY OF REVERTER AND NO INTEREST OF ANY OTHER KIND RETAINED OR
ARISING IN FAVOR OF THE SETTLOR OR HIS ESTATE UNDER THE TRANSFER MADE
IN TRUST, INTER VIVOS, DID SECTION 811(C) OF THE INTERNAL REVENUE CODE
REQUIRE THAT THE VALUE OF THE CORPUS OF THE TRUST BE INCLUDED IN THE
SETTLOR'S GROSS ESTATE FOR FEDERAL ESTATE-TAX PURPOSES?  THAT IS, DID
OF THE VALUE OF THE CORPUS OF A TRUST, CREATED INTER VIVOS, MERELY
BECAUSE THE SETTLOR HAD PROVIDED IN IT THAT, UPON HIS DEATH, THE TRUST
SHOULD TERMINATE AND THE CORPUS BE DISTRIBUTED TO DESIGNATED
BENEFICIARIES THEN SURVIVING?"  JOURNAL SUPREME COURT, OCT. TERM, 1947,
PP. 296-297. 

IN RESPONSE, COUNSEL FOR THE COMMISSIONER ARGUED IN THE AFFIRMATIVE
AND COUNSEL FOR THE PETITIONERS IN THE NEGATIVE.  THE INTERPRETATION OF
THE STATUTE URGED ON BEHALF OF THE COMMISSIONER, HOWEVER, HAD BEEN LONG
AGO REJECTED UNANIMOUSLY BY THIS COURT IN PASSING UPON THE SO-CALLED
"FIVE TRUSTS" IN THE REINECKE CASE.  ACCORDINGLY, IF THAT PRECEDENT
STANDS, THE ANSWER TO THE ABOVE QUESTION REMAINS "NO" AND THAT ISSUE
SHOULD BE AT REST. 

THE REASONING OF THE REINECKE CASE REQUIRES THAT, FOR A TRANSFER TO
BE TAXABLE IN A CASE LIKE THIS, THE SETTLOR MUST HAVE INTENDED THAT THE
TRANSFER COME FROM THE SETTLOR AND THAT IT TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER THE SETTLOR'S DEATH.  IT MUST BE FROM THE DEAD TO
THE LIVING.  THAT REQUIREMENT CALLS FOR THE EXISTENCE OF AN INTEREST,
RIGHT OR CONTROL IN THE SETTLOR, OR AT LEAST THE EXISTENCE OF SOME
POSSIBILITY OF A REVERTER TO THE SETTLOR OR TO HIS ESTATE, AMOUNTING TO
A STRING OR TIE TO THE TRUST PROPERTY, IN ORDER TO MAKE SEC. 811(C)
APPLICABLE.  SUCH INTEREST, STRING OR TIE MUST ALSO BE ONE THAT WAS
TRANSFERRED, CUT OFF OR OBLITERATED BY THE TERMS OF THE TRUST AT OR
AFTER THE DEATH OF THE SETTLOR. 

ACCORDINGLY, THERE NOW SHOULD BE SAID ABOUT SEC. 811 OF THE INTERNAL
REVENUE CODE, 53 STAT. 120, 26 U.S.C. (1940 ED.)  SEC.  811, WHAT MR.
JUSTICE STONE, IN 1929, SAID IN THE REINECKE CASE ABOUT THE
CORRESPONDING SEC. 402 OF THE REVENUE ACT OF 1921, C. 136, 42 STAT.
227, 278: 

"IN ITS PLAN AND SCOPE THE TAX IS ONE IMPOSED ON TRANSFERS AT DEATH
OR MADE IN CONTEMPLATION OF DEATH AND IS MEASURED BY THE VALUE AT DEATH
OF THE INTEREST WHICH IS TRANSFERRED.  CF. Y.M.C.A. V. DAVIS, 264 U.S.
47, 50; EDWARDS V. SLOCUM, 264 U.S. 61, 62; N.Y. TRUST CO. V. EISNER,
256 U.S. 345, 349.  IT IS NOT A GIFT TAX, AND THE TAX ON GIFTS ONCE
IMPOSED BY THE REVENUE ACT OF 1924, C. 234, 43 STAT. 313, HAS BEEN
REPEALED, 44 STAT. 126.  ONE MAY FREELY GIVE HIS PROPERTY TO ANOTHER BY
ABSOLUTE GIFT WITHOUT SUBJECTING HIMSELF OR HIS ESTATE TO A TAX, BUT WE
ARE ASKED TO SAY THAT THIS STATUTE MEANS THAT HE MAY NOT MAKE A GIFT
INTER VIVOS, EQUALLY ABSOLUTE AND COMPLETE, WITHOUT SUBJECTING IT TO A
TAX IF THE GIFT TAKES THE FORM OF A LIFE ESTATE IN ONE WITH REMAINDER
OVER TO ANOTHER AT OR AFTER THE DONOR'S DEATH.  IT WOULD REQUIRE PLAIN
AND COMPELLING LANGUAGE TO JUSTIFY SO INCONGRUOUS A RESULT AND WE THINK
IT IS WANTING IN THE PRESENT STATUTE."  ID. AT PP. 347-348. 

SEE ALSO, HELVERING V. HALLOCK, 309 U.S. 106; DISSENTING OPINION IN
BECKER V. ST. LOUIS UNION TRUST CO., 296 U.S. 48, 53, AND HELVERING V.
ST. LOUIS UNION TRUST CO., 296 U.S. 39, 46; KLEIN V. UNITED STATES, 283
U.S. 231; AND SHUKERT V. ALLEN, 273 U.S. 545. 

           II.  THE SECOND PROPOSAL IS FOR THE APPLICATION OF

           THE DOCTRINE OF THE CLIFFORD CASE. 

TO APPLY THE DOCTRINE OF HELVERING V. CLIFFORD, SUPRA, TO THE CASE
BEFORE US IS, IN EFFECT, TO SUBSTITUTE THAT DOCTRINE FOR THE DOCTRINE
OF THE REINECKE CASE.  HERETOFORE, THIS COURT HAS MADE NO APPLICATION
OF THE DOCTRINE OF THE CLIFFORD CASE TO SEC. 811(C) OR TO ANY OF ITS
PREDECESSOR SECTIONS.  THAT DOCTRINE HAS BEEN RESERVED LARGELY FOR
INCOME TAX CASES.  ALL THE FACTS APPROPRIATE FOR A DECISION IN THIS
CASE UNDER THE DOCTRINE OF THE CLIFFORD CASE HAVE NOT BEEN PRESENTED. 
THE ABSENCE OF THOSE FACTS FROM THE RECORD AND THE ABSENCE OF THIS
ISSUE FROM THE ARGUMENTS MADE BELOW EMPHASIZE THE INAPPROPRIATENESS OF
A REMAND TO INTRODUCE SUCH FACTS AT THIS LATE POINT IN THIS
PROCEEDING.  NOTHING SUGGESTS THAT THIS TRUSTEE HAS PRACTICED FRAUD, OR
TAX EVASION, OR HAS VIOLATED HIS OBLIGATIONS AS A TRUSTEE.  THE TRUST
BECAME IRREVOCABLE AT ITS INCEPTION.  IT THUS CONTRASTS SHARPLY WITH
ANY TESTAMENTARY INSTRUMENT WHICH THE SETTLOR MIGHT HAVE EXECUTED. 
THERE IS NOTHING IN IT TO SUGGEST THAT THE SETTLOR, EVEN AS A SOLE
SURVIVING TRUSTEE, WOULD BE FREE FROM STRICT ACCOUNTABILITY TO THE
BENEFICIARIES OF THE TRUST OR FROM AN OBLIGATION TO USE HIS DISCRETION
IN THEIR INTEREST RATHER THAN IN HIS OWN.  THERE IS NO MORE OF AN
EXPRESS PROVISION IN THIS TRUST FOR THE POSSIBILITY OF A REVERTER TO
THE SETTLOR THAN THERE WAS IN THE REINECKE CASE.  THE COUNTLESS
UNCERTAINTIES WHICH WOULD ARISE IN OTHER CASES FROM A RETROACTIVE
APPLICATION TO THIS STATUTE OF THE DOCTRINE OF THE CLIFFORD CASE MIGHT
BE NEARLY AS GREAT AS THOSE WHICH WOULD FLOW FROM A REVERSAL OF THE
REINECKE CASE. 

FURTHERMORE, THERE IS A SHARP CONTRAST BETWEEN SEC. 22(A)  FN3  AND
SEC. 811(C) OF THE INTERNAL REVENUE CODE AS A STARTING POINT FOR THE
APPLICATION OF THE DOCTRINE OF THE CLIFFORD CASE.  SECTION 22(A), UPON
WHICH THE CLIFFORD CASE RESTS ITS EXPANSION OF THE TRADITIONALLY
TAXABLE INCOME OF THE TAXPAYER, INVITES OR AT LEAST PERMITS THE BROAD
INTERPRETATION GIVEN TO IT.  SECTION 811, ON THE OTHER HAND, CONTAINS
NO SWEEPING INCLUSIONS.  WHATEVER BREADTH OF LANGUAGE IT CONTAINS IS IN
SEC. 811(A), WHEREAS SEC. 811(C) IS IN THE NATURE OF A SPECIAL
EXCEPTION FROM THE BROAD FIELD OF TRANSFERS INTER VIVOS.  SECTION
811(C) SEEKS TO APPLY THE ESTATE TAX TO CERTAIN IDENTIFIABLE
CLASSIFICATIONS OF SUCH TRANSFERS WHERE EXPERIENCE HAS INDICATED THAT,
IN SPITE OF THEIR FORM, CONGRESS BELIEVES THEY SHOULD BE SUBJECTED TO
ESTATE TAX.  THE HISTORICAL DEVELOPMENT OF SEC. 811(C) BEARS OUT THIS
INTERPRETATION.  IT HAS BEEN EXTENDED ONLY BY THE ADDITION OF
SPECIFICALLY DESCRIBED CLASSIFICATIONS.  THE SAME IS TRUE OF THE
REVOCABLE TRANSFERS DESCRIBED IN SEC. 811(D), OF JOINT AND COMMUNITY
INTERESTS IN SEC. 811(E), OF POWERS OF APPOINTMENT IN SEC. 811(F), OF
PROCEEDS OF LIFE INSURANCE IN SEC. 811(G), OF TRANSFERS OF PRIOR
INTERESTS IN SEC. 811(H) AND OF TRANSFERS FOR INSUFFICIENT
CONSIDERATION IN SEC. 811(I).  IF CONGRESS HAD INTENDED TO SWEEP INTO
THE GROSS ESTATE OF THE DECEDENT BROAD CLASSIFICATIONS OF TRANSFERS
INTER VIVOS, CONTRARY TO THE LIMITATIONS UPHELD IN REINECKE V. NORTHERN
TRUST CO., SUPRA, OR AS WOULD RESULT FROM THE APPLICATION OF THE
DOCTRINE OF HELVERING V. CLIFFORD, MANY OF THE FOREGOING SPECIFIC
EXTENSIONS WOULD NOT HAVE BEEN NECESSARY.  THE VERY SPECIFICITY OF THE
TERMS OF SEC. 811(C) AND OF ITS RELATED SUBSECTIONS EMPHATICALLY
NEGATIVE ANY BROAD INTERPRETATION OF THEIR LANGUAGE.  NO LANGUAGE OF A
BREADTH COMPARABLE TO THAT USED IN SEC. 22(A) APPEARS ANYWHERE IN THE

TO APPLY THE DOCTRINE OF THE CLIFFORD CASE TO THE SPIEGEL TRUST
BECAUSE OF THE POWERS WHICH THE SPIEGEL TRUST VESTED IN THE SETTLOR AS
A TRUSTEE CONFLICTS WITH THE POSITION TAKEN BY THIS COURT AS TO THE
"FIVE TRUSTS" IN THE REINECKE CASE, SUPRA.  FOR EXAMPLE, THE POWERS
RESERVED DIRECTLY TO THE SETTLOR UNDER TRUST NO. 4477 IN THE REINECKE
CASE NOT ONLY ARE EQUAL TO BUT, IN SOME WAYS, ARE BROADER THAN THOSE
VESTED IN THE SETTLOR, AS A TRUSTEE, IN THE SPIEGEL TRUST.  THE VERY
FACT THAT IN TRUST NO. 4477 THE RESERVATIONS WERE MADE DIRECTLY TO THE
SETTLOR IN HIS PERSONAL CAPACITY, RATHER THAN TO HIM AS A TRUSTEE,
REMOVES FROM THEM THE TRADITIONAL LIMITATIONS WHICH EQUITY PLACES UPON
A TRUSTEE IN THE EXERCISE OF POWERS WHICH HE HOLDS FOR THE BENEFIT OF
HIS CESTUI QUE TRUST.  IN APPENDIX II, INFRA, P. 737, TRUST NO. 4477 IS
QUOTED IN FULL FROM THE RECORD IN THE REINECKE CASE AND A NUMBER OF THE
ESPECIALLY MATERIAL CLAUSES HAVE BEEN ITALICIZED.  WHILE THE TERMS OF
THAT TRUST WERE NOT QUOTED VERBATIM IN THE OPINION OF THIS COURT IN THE
REINECKE CASE, THIS COURT THERE SUMMARIZED SEVERAL OF THEM FN4  AND
SAID: 

"NOR DID THE RESERVED POWERS OF MANAGEMENT OF THE TRUSTS SAVE TO
DECEDENT ANY CONTROL OVER THE ECONOMIC BENEFITS OR THE ENJOYMENT OF THE
PROPERTY.  HE WOULD EQUALLY HAVE RESERVED ALL THESE POWERS AND OTHERS
HAD HE MADE HIMSELF THE TRUSTEE, BUT THE TRANSFER WOULD NOT FOR THAT
REASON HAVE BEEN INCOMPLETE.  THE SHIFTING OF THE ECONOMIC INTEREST IN
THE TRUST PROPERTY WHICH WAS THE SUBJECT OF THE TAX WAS THUS COMPLETE
AS SOON AS THE TRUST WAS MADE.  HIS POWER TO RECALL THE PROPERTY AND OF
CONTROL OVER IT FOR HIS OWN BENEFIT THEN CEASED AND AS THE TRUSTS WERE
NOT MADE IN CONTEMPLATION OF DEATH, THE RESERVED POWERS DO NOT SERVE TO
DISTINGUISH THEM FROM ANY OTHER GIFT INTER VIVOS NOT SUBJECT TO THE
TAX."  (AT PP. 346-347.) 

THIS COURT THUS SHOWED THAT ALL OF THE POWERS RESERVED DIRECTLY TO
THE SETTLOR, EVEN IF COUPLED WITH THE "OTHERS" OF THE TRUSTEE, WOULD
NOT SUBJECT THAT TRUST TO THE ESTATE TAX.  THIS IS ESPECIALLY
SIGNIFICANT BECAUSE THE ISSUE NOW PRESENTED HAD BEEN BROUGHT SQUARELY
BEFORE THIS COURT IN THE REINECKE CASE BY THE FOLLOWING QUESTION IN THE
GOVERNMENT'S BRIEF: 

"1.  DO THE WORDS OF SECTION 402(C) OF THE REVENUE ACT OF 1921, WHICH
PROVIDE THAT, FOR THE PURPOSE OF MEASURING THE ESTATE TAX, THERE SHALL
BE INCLUDED IN THE VALUE OF DECEDENT'S GROSS ESTATE TRUSTS INTENDED TO
'TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS DEATH,'
EMBRACE: 

     .         .         .         .         . 

"(B)  TRUSTS CREATED AFTER THE EFFECTIVE DATE OF A SIMILAR AND
EARLIER ACT, WHERE THE SETTLOR RESERVED THE POWER TO SELL AND REINVEST
THE TRUST PROPERTY; VOTE THE STOCK; CONTROL LEASES; REAPPOINT TRUSTEES;
AND, JOINTLY WITH THE BENEFICIARIES, TO ALTER, AMEND, OR MODIFY THE
TRUST.  (THIS APPLIES TO TRUSTS NOS. 4477, 4478, 4479, 4480, AND 4481,
RESPECTIVELY, APPEARING IN THE RECORD AT PP. 3, 17, 25, 32, 40.)"  FN5 

FOR US TO HOLD THAT SEC. 811(C) APPLIES HERE BECAUSE OF THE POWERS
WHICH HAVE BEEN VESTED IN THE SETTLOR-TRUSTEE UNDER THE SPIEGEL TRUST
WOULD, THEREFORE, AMOUNT TO OVERRULING THE DECISION OF THIS COURT IN
THE REINECKE CASE WHICH HELD THAT THE CORRESPONDING LANGUAGE OF SEC.
402(C) OF THE REVENUE ACT OF 1921 DID NOT APPLY IN THAT CASE.  FN6 

THE FAILURE TO REMAND THIS CASE FOR THE DETERMINATION OF FURTHER
FACTS WHICH WOULD BE MATERIAL UNDER THE TESTS OF THE CLIFFORD CASE DOES
NOT SETTLE THE QUESTION THAT HAS BEEN ARGUED AS TO THE APPLICATION OF
THOSE TESTS UNDER SEC. 811(C).  IT DOES, HOWEVER, SHOW THAT THIS COURT
HAS NOT BEEN WILLING TO REST ITS DECISION UPON THE APPLICATION OF THE
DOCTRINE OF THE CLIFFORD CASE ON THE BASIS OF THE TERMS OF THIS TRUST
AND OF THE FACTS SHOWN BY THE PRESENT RECORD. 

             COMMON BASIS FOR THE THIRD, FOURTH AND FIFTH

        PROPOSALS. 

                         THE MATERIAL FACTS. 

THE IMPORTANT FACTS IN THIS CASE ARE THE TERMS OF THE TRUST
INSTRUMENT AND THE INTENT OF THE SETTLOR.  THE TERMS OF THE INSTRUMENT
ARE THOSE TO WHICH THE LAW OF ILLINOIS MUST BE APPLIED TO DETERMINE
WHETHER THERE AROSE, BY OPERATION OF LAW, ANY POSSIBILITY OF A REVERTER
IN FAVOR OF THE SETTLOR WHICH MIGHT HAVE BEEN TRANSFERRED, CUT OFF OR
OBLITERATED BY THE SETTLOR'S DEATH.  IN 1920 THE SETTLOR MADE AN
IRREVOCABLE TRANSFER, IN ILLINOIS, BY TRUST, OF CERTAIN CORPORATE
SECURITIES WITH DIRECTIONS TO THE TRUSTEES TO PAY THE INCOME OF THE
TRUST, DURING THE LIFE OF THE SETTLOR, TO HIS THREE NAMED CHILDREN,
BUT, IF ANY OF SUCH CHILDREN PREDECEASED THE SETTLOR, THE PAYMENTS WERE
TO GO TO THE CHILDREN OF SUCH DECEASED CHILD OR CHILDREN PER STIRPES. 
IF THERE WERE NO SURVIVING CHILD OF A DECEASED CHILD OF THE SETTLOR,
THE PAYMENTS WERE TO GO TO THE OTHER CHILDREN OF THE SETTLOR AND TO
THEIR DESCENDANTS PER STIRPES.  SIMILARLY, UPON THE SETTLOR'S DEATH,
THE TRUST FUND AND ANY ACCUMULATED INCOME THEREON WERE TO BE DIVIDED
AMONG THE SETTLOR'S THREE CHILDREN.  IT WAS PROVIDED, WITH OBVIOUS
CARE, THAT, IF ANY OF THE SETTLOR'S CHILDREN HAD BY THAT TIME DIED,
LEAVING ANY CHILD OR CHILDREN SURVIVING, THEN THE CHILD OR CHILDREN OF
SUCH DECEASED CHILD OF THE SETTLOR WAS OR WERE TO RECEIVE THE SHARE OF
THE TRUST FUND TO WHICH ITS OR THEIR PARENT WOULD HAVE BEEN ENTITLED. 
FURTHERMORE, IF ANY OF THE SETTLOR'S THREE CHILDREN DIED WITHOUT
LEAVING ANY CHILD OR CHILDREN SURVIVING, THEN THE SHARE OF SUCH
DECEASED CHILD WAS TO GO TO THE SETTLOR'S REMAINING CHILDREN AND TO THE
DESCENDANTS OF ANY DECEASED CHILD OF THE SETTLOR PER STIRPES.  NO
FURTHER EXPRESS PROVISION WAS MADE FOR THE DISPOSITION OF THE INCOME OR
OF THE CORPUS OF THE TRUST IN THE EVENT, FOR EXAMPLE, THAT NONE OF THE
SETTLOR'S THREE CHILDREN AND NO DESCENDANTS OF SUCH CHILDREN SURVIVED
THE SETTLOR.  THE INSTRUMENT CONTAINED NO FURTHER INTIMATION OF ANY
INTENT OR EVEN THOUGHT ON THE PART OF THE SETTLOR THAT IN ANY MANNER
THERE MIGHT ARISE IN FAVOR OF THE SETTLOR OR OF HIS ESTATE, ANY
BENEFICIAL INTEREST, OR RIGHT TO, OR CONTROL OVER THE POSSESSION OR
ENJOYMENT OF THE INCOME OR CORPUS OF THE TRUST. 

THE GIFT WAS NOT MADE IN CONTEMPLATION OF DEATH.  AT THAT DATE THERE
WAS NO LAW PRESCRIBING A FEDERAL GIFT TAX APPLICABLE TO IT.  THE
TRUSTEES NAMED IN THE TRUST WERE THE SETTLOR HIMSELF AND ONE OTHER
PERSON WHOSE RELATIONSHIP, IF ANY, TO THE SETTLOR DOES NOT APPEAR IN
THE RECORD.  BOTH WERE RESIDENTS OF ILLINOIS.  THEIR POWERS OF
MANAGEMENT WERE COMPARABLE TO THOSE COMMONLY GRANTED TO TRUSTEES TO
HANDLE A TRUST ESTATE CONSISTING ORIGINALLY OF SUCH SECURITIES AS WERE
TRANSFERRED HERE.  THE TRUST MENTIONED NO POWER OF APPOINTMENT AND NO
POWER TO ALTER, AMEND, REVOKE OR TERMINATE THE TRUST.  AT THE CREATION
OF THE TRUST, THE AGE OF THE SETTLOR WAS 47 AND HE WAS A WIDOWER.  HIS
THREE ONLY CHILDREN WERE, RESPECTIVELY, ABOUT 22, 15 AND 12 YEARS OLD. 
HE THEN HAD NO GRANDCHILDREN.  IN 1940, WHEN HE DIED, HE WAS 68 AND HIS
CHILDREN WERE, RESPECTIVELY, 43, 36 AND 33.  HE THEN HAD THREE
GRANDCHILDREN, AGED, RESPECTIVELY, TEN, FOUR AND TWO.  THROUGHOUT HIS
LIFE THE INCOME OF THE TRUST WAS DISTRIBUTED TO AND FOR THE BENEFIT OF
HIS THREE CHILDREN AND UPON HIS DEATH THE ENTIRE FUND WAS DISTRIBUTED
EQUALLY AMONG THEM. 

            THE POSSIBILITY OF A REVERTER TO THE SETTLOR. 

IN ADDITION TO HIS BROADER CLAIMS DISCUSSED UNDER THE FIRST AND
SECOND PROPOSALS, THE COMMISSIONER HAS PRESENTED A NARROW CLAIM.  THIS
IS A CLAIM THAT IF, BY OPERATION OF LAW, THERE ARISES FROM THE TRUST A
REVERSIONARY INTEREST IN THE SETTLOR OR IN HIS ESTATE, OR IF THERE
EXISTS EVEN A GOSSAMER THREAD OF A POSSIBILITY OF A REVERTER TO THE
SETTLOR OR TO HIS ESTATE, AND IF SUCH INTEREST, "STRING OR TIE" WERE,
BY THE TERMS OF THE TRUST, TO BE TRANSFERRED, CUT OFF OR OBLITERATED BY
HIS DEATH, THEN, UNDER EXISTING PRECEDENTS, THE ENTIRE TRUST PROPERTY
SHOULD BE INCLUDED IN THE GROSS ESTATE OF THE SETTLOR FOR FEDERAL
ESTATE TAX PURPOSES.  THERE IS NO ISSUE MADE HERE AS TO THE AMOUNT OF
THE TAX IF ANY IS DUE.  THE PETITIONERS' CLAIM IS SIMPLY THAT NO ESTATE
TAX IS APPLICABLE TO THE TRUST FUND. 

                      III.  THE THIRD PROPOSAL. 

        ILLINOIS LAW PRECLUDES THE POSSIBILITY OF A REVERTER. 

ON THIS BRANCH OF THE CASE THE FIRST INQUIRY MUST BE AS TO THE LAW OF
ILLINOIS AND THE SECOND AS TO ITS APPLICATION TO THIS TRUST.  A
DETERMINATION OF THE ILLINOIS LAW AND OF ITS APPLICATION ADVERSELY TO
THE TAXPAYERS WOULD BE CONCLUSIVE AGAINST THEM, UNLESS RELIEVED BY THE
RULE OF DE MINIMIS UNDER THE FOURTH PROPOSAL, OR BY A FINDING FAVORABLE
TO THEM ON THE ISSUE OF THE SETTLOR'S FACTUAL INTENT UNDER THE FIFTH
PROPOSAL.  ON THE OTHER HAND, A FINDING FAVORABLE TO THE TAXPAYERS UPON
EITHER THE PRINCIPLE OR THE APPLICATION OF THE LAW OF ILLINOIS WOULD
DISPOSE OF THIS CASE IN THEIR FAVOR.  THIS VERY CONCLUSIVENESS OF THE
STATE LAW UNDER THIS PROPOSAL IS A WEIGHTY CONSIDERATION IN FAVOR OF
THE INTERPRETATION OF THE STATUTE PRESENTED BY THE FIFTH PROPOSAL.  A
FEDERAL POLICY OF COMPLETE DEPENDENCE UPON STATE LAWS FOR THE
APPLICATION OF ANY NATIONWIDE TAX CANNOT FAIRLY BE ATTRIBUTED TO
CONGRESS WITHOUT A MUCH CLEARER EXPRESSION OF SUCH A POLICY THAN
APPEARS IN SEC. 811(C).  THE INHERENT DIFFICULTY OF ADMINISTRATION AND
THE RESULTING INEQUALITY OF TAXATION AS BETWEEN INSTRUMENTS GOVERNED BY
THE LAWS OF DIFFERENT STATES ARGUE STRONGLY AGAINST SUCH A POLICY. 

THIS COURT, AS A SETTLED PRACTICE, PLACES MUCH RELIANCE UPON
ANNOUNCEMENTS BY COURTS OF APPEALS AS TO THE LAW OF THE STATES WITHIN
THEIR RESPECTIVE CIRCUITS.  FN7  THE WEIGHT TO WHICH SUCH ANNOUNCEMENTS
ARE ENTITLED WILL VARY WITH THE CIRCUMSTANCES UNDER WHICH THEY ARE
MADE.  IN THIS CASE WE HAVE AN ANNOUNCEMENT BY THE COURT OF APPEALS FOR
THE SEVENTH CIRCUIT ON THE LAW OF ILLINOIS AS TO THE EFFECT OF
CONTINGENT REMAINDERS CONTAINED IN A TRUST AND POINTING OUT THAT, UNDER
THE LAW OF ILLINOIS, THEY CREATE REVERSIONARY INTERESTS IN THE
SETTLOR.  OUR DIFFICULTY HERE IS NOT WITH THE LAW AS THUS STATED BUT
WITH THE APPLICATION MADE OF IT TO THIS CASE.  THE TROUBLE IS THAT THE
TRUST IN THIS CASE CONTAINS NOT CONTINGENT REMAINDERS BUT VESTED
REMAINDERS, AND IT IS CLEAR THAT, UNDER THE LAW OF ILLINOIS, NO
REVERSIONS, REVERSIONARY INTERESTS, RESULTING TRUSTS OR "POSSIBILITIES
OF A REVERTER" OF ANY KIND CAN ARISE BY OPERATION OF LAW FROM A VESTED
REMAINDER.  THIS IS DUE TO THE ESSENTIAL DIFFERENCE BETWEEN A
CONTINGENT REMAINDER AND A VESTED REMAINDER.  IF THE LAW OF ILLINOIS IS
TO CONTROL THE SITUATION, THERE IS NO ESCAPE FROM THE DETERMINATION OF
THIS CLEAR-CUT ISSUE UNDER THE LAW OF THAT STATE. 

THE FAILURE OF A CONDITION PRECEDENT UPON WHICH A CONTINGENT
REMAINDER DEPENDS UNDER A TRUST RESULTS NATURALLY ENOUGH IN A REVERSION
OF THE UNDISPOSED-OF BENEFICIAL INTEREST TO THE SETTLOR OF THE TRUST. 
ON THE OTHER HAND, THE FAILURE OF A CONDITION SUBSEQUENT ATTACHED TO A
VESTED REMAINDER UNDER A TRUST RESULTS EQUALLY NATURALLY ONLY IN A
FAILURE OF THE DIVESTITURE CONTEMPLATED BY THE CONDITION.  THE EFFECT
OF SUCH A FAILURE OF A CONDITION SUBSEQUENT ATTACHED TO A VESTED
REMAINDER IS NOT A REVERSION OF AN UNDISPOSED-OF BENEFICIAL INTEREST TO
THE SETTLOR OF THE TRUST.  IT MERELY RELIEVES THE HOLDER OF THE VESTED
REMAINDER AND HIS LEGATEES AND NEXT OF KIN FROM THE POSSIBILITY OF THE
DIVESTITURE TO WHICH THE REMAINDER ORIGINALLY HAD BEEN SUBJECTED. 

THE COURT OF APPEALS IN THE INSTANT CASE HAS MADE NO ANNOUNCEMENT OF
ILLINOIS LAW CONTRARY TO THAT JUST STATED.  IN FACT, IT MADE NO
ANNOUNCEMENT WHATEVER ON THE SUBJECT OF VESTED REMAINDERS BECAUSE IT
TREATED THE SPIEGEL REMAINDERS AS CONTINGENT.  FN8  THE FOREGOING
ELEMENTAL STATEMENT AS TO THE LEGAL EFFECT OF CONTINGENT REMAINDERS AND
OF VESTED REMAINDERS SUBJECT TO CONDITIONS SUBSEQUENT CONFORMS TO THE
GENERALLY ACCEPTED LAW OF TRUSTS  FN9  AND TO THE LAW OF ILLINOIS. 
FN10 

THIS BRINGS US NEAR TO THE DECISIVE QUESTION WHETHER THE REMAINDER
INTERESTS WRITTEN INTO THE SPIEGEL TRUST WERE CONTINGENT OR VESTED. 
THE COMMISSIONER HAS SUGGESTED THAT IT MAKES LITTLE SUBSTANTIAL
DIFFERENCE WHETHER A CONDITION IS A CONDITION PRECEDENT OR A CONDITION
SUBSEQUENT, AS LONG AS IT IS A CONDITION.  THAT IS SO FOR MANY PURPOSES
BUT WHERE, AS HERE, A TAX, BY HYPOTHESIS, CAN ATTACH ONLY IF SOME
POSSIBILITY OF A REVERTER CAN ARISE IN FAVOR OF THE SETTLOR BEFORE HIS
DEATH, THEN IT IS INESCAPABLY NECESSARY TO DETERMINE WHETHER OR NOT, BY
OPERATION OF THE LAW OF ILLINOIS, SUCH A POSSIBILITY OF A REVERTER CAN
ARISE UNDER THIS TRUST.  TO SAY IN SUCH A SITUATION THAT THE LANGUAGE
OF THE CONVEYANCE MAKES NO DIFFERENCE IS TO BEG THE QUESTION.  THE
POSSIBILITY IS NOT EXPRESSLY SPELLED OUT OR DENIED.  ITS EXISTENCE,
LIKE THE EXISTENCE OF ANY OTHER BENEFICIAL INTEREST IN THE TRUST, MUST
DEPEND UPON THE EFFECT GIVEN BY ILLINOIS LAW TO THE WORDS OF ART IN THE
CONVEYANCE.  IN THE LAST ANALYSIS THE PROBLEM IS TO DETERMINE WHETHER
OR NOT THE SETTLOR INTENDED BY HIS LANGUAGE THAT THE POSSESSION AND
ENJOYMENT OF HIS PROPERTY WERE TO RETURN TO HIM UPON FAILURE OF THE
EXPRESS DISPOSITIONS OF THE BENEFICIAL INTERESTS IN IT.  IF THE SETTLOR
HAD WISHED TO EXPRESS HIMSELF IN DETAIL HE COULD HAVE DONE SO.  HERE,
HOWEVER, HE USED ONLY THE CUSTOMARY LANGUAGE OF CONVEYANCING AND IT
REMAINS TO SEE WHAT EFFECT THE ILLINOIS LAW GIVES TO THAT LANGUAGE. 

IN THE HELPFUL LIGHT OF LACHENMYER V. GEHLBACH, 266 ILL. 11, 107 N.E.
202, THE REMAINDERS IN THE SPIEGEL TRUST ARE SHOWN TO BE VESTED
REMAINDERS, CARRYING CONDITIONS SUBSEQUENT.  SEE ALSO, STOMBAUGH V.
MOREY, 388 ILL. 392, 58 N.E.2D 545; MURPHY V. WESTHOFF, 386 ILL. 136,
53 N.E.2D 931; DANZ V. DANZ, 373 ILL. 482, 26 N.E.2D 872; SMITH V.
SHEPARD, 370 ILL. 491, 19 N.E.2D 368; HOBLIT V. HOWSER, 338 ILL. 328,
170 N.E. 257; BOYE V. BOYE, 300 ILL. 508, 133 N.E. 382; MCBRIDE V.
CLEMONS, 294 ILL. 251, 128 N.E. 383; HICKOX V. KLAHOLT, 291 ILL. 544,
126 N.E. 166; WELCH V. CROWE, 278 ILL. 244, 115 N.E. 859.  CF.
FREUDENSTEIN V. BRADEN, 397 ILL. 29, 72 N.E.2D 832.  NO DISTINCTION HAS
BEEN DRAWN IN THE ILLINOIS CASES BETWEEN INTERESTS CREATED BY INTER
VIVOS DEEDS AND LIKE INTERESTS CREATED BY TESTAMENTARY DOCUMENTS.  SEE
SMITH V. DUGGER, 310 ILL. 624, 625, 142 N.E. 243, 244, WHERE THE
ILLINOIS SUPREME COURT RELIED UPON LACHENMYER V. GEHLBACH, SUPRA, IN
CONSTRUING AN INTER VIVOS DEED.  SEE ALSO, HARDER V. MATTHEWS, 309 ILL.
548, 141 N.E. 442.  FN11 

FOR THESE REASONS, BY OPERATION OF THE LAW OF ILLINOIS, THERE HERE
EXISTED NO POSSIBILITY OF A REVERTER TO THE SETTLOR AND, THEREFORE, THE
FEDERAL ESTATE TAX CANNOT ATTACH TO IT.  TO THE EXTENT THAT THE
COMMISSIONER RELIES UPON THE LAW OF ILLINOIS TO ESTABLISH IN THIS CASE
THE POSSIBILITY OF A REVERTER TO THE SETTLOR, BY OPERATION OF THE
ILLINOIS LAW, HE HAS BEEN "HOIST WITH HIS OWN PETARD." 

          IV. THE FOURTH PROPOSAL ASSUMES THAT A POSSIBILITY OF A

  REVERTER EXISTS AND THAT THE FACTUAL INTENT        OF

         THE SETTLOR MAY BE DISREGARDED. 

THIS PROPOSAL IS REACHED ONLY IF THE FOREGOING CONCLUSIONS AS TO THE
LAW OF ILLINOIS ARE DISREGARDED.  IT IS THE SOLUTION ADOPTED IN THE
OPINION OF THE COURT.  IF IT IS ASSUMED THAT THE POSSIBILITY OF
REVERTER IN FAVOR OF THE SETTLOR MAY BE SAID TO HAVE ARISEN UNDER THE
LAW OF ILLINOIS, THEN UNDER EXISTING PRECEDENTS, IF WE LOOK NO FURTHER,
THE FEDERAL ESTATE TAX WOULD BE APPLICABLE HERE AND A DECISION IS
CALLED FOR AGAINST THE TAXPAYERS.  THE FIFTH PROPOSAL PRESENTS THE VIEW
THAT THE STATUTE REQUIRES US TO LOOK FURTHER AND TO DETERMINE THE ISSUE
IN RELIANCE UPON THE FACTUAL INTENT OF THE SETTLOR.  HOWEVER, EVEN
WITHOUT GOING THAT FAR, A SUBSTANTIAL CASE CAN BE MADE IN FAVOR OF THE
TAXPAYERS EVEN UNDER THIS FOURTH PROPOSAL.  THAT CASE IS BASED UPON THE
EXTREME REMOTENESS OF THE POSSIBILITY OF REVERTER WHICH IS RELIED UPON
BY THE COMMISSIONER.  THE REMOTENESS OF IT IS OBVIOUS FROM THE FACT
THAT, EVEN AT THE TIME OF THE EXECUTION OF THE TRUST WHEN THE CHANCES
OF ITS REALIZATION WERE AT THEIR HIGHEST POINT, THE POSSIBLE REVERTER
TO THE SETTLOR WAS CONCEIVABLE ONLY IF ALL THREE OF THE CHILDREN OF THE
SETTLOR WERE TO DIE BEFORE HE DID AND WERE TO DIE WITHOUT DESCENDANTS
OF THEIR OWN.  DISREGARDING THE POSSIBILITY OF DESCENDANTS OF HIS
CHILDREN, THE RECORD SHOWS AN ACTUARIAL COMPUTATION OF THE LIKELIHOOD
THAT THE SETTLOR WOULD SURVIVE ALL THREE OF HIS CHILDREN OF ONLY ABOUT
1 1/2 CHANCES OUT OF 100.  ON THE BASIS OF SUCH A CHANCE OF
REALIZATION, THE COMPUTATION GAVE A VALUE OF ABOUT $4,000 TO A TRUST
CORPUS OF $1,000,000.  TO TAX THE SETTLOR'S ESTATE MORE THAN $450,000,
AS IS HERE PROPOSED, BECAUSE OF THE EXISTENCE OF THIS $4,000 WORTH OF A
POSSIBLE REVERTER IS NOT THE KIND OF TAXATION THAT A COURT CAN READILY
IMAGINE THAT CONGRESS MEANT TO IMPOSE.  A PROPORTION OF 1 1/2 TO 100
SUGGESTS THE APPROPRIATE APPLICATION HERE OF THE MAXIM OF DE MINIMIS
NON CURAT LEX.  THE DIFFICULTY OF APPLYING THAT TEST AS THE SOLE BASIS
OF EXEMPTION IS, HOWEVER, OBVIOUS.  ON THE OTHER HAND, THIS ELEMENT OF
REMOTENESS PROVIDES A THOROUGHLY REASONABLE CONSIDERATION WHICH MAY BE
COMBINED WITH OTHER EVIDENCE TO DETERMINE THE PRESENCE OR ABSENCE OF
THE FACTUAL INTENT ON THE PART OF THE SETTLOR WHICH IS DISCUSSED IN THE
FIFTH AND FINAL PROPOSAL. 

                       V. THE FIFTH PROPOSAL. 

THE STATUTORY INTENT OF THE SETTLOR REQUIRED TO MAKE THE ESTATE TAX
APPLICABLE IS ABSENT AND A CONTRARY INTENT IS PRESENT. 

THE UNDISPUTED EVIDENCE SHOWS THAT, AT THE TIME OF THE TRANSFER BY
TRUST, THERE WAS AN ABSENCE OF CONSCIOUS INTENT ON THE PART OF THE
SETTLOR THAT THE TRUST PROPERTY, OR ANY PART OF IT, SHOULD EVER RETURN
TO HIM OR TO HIS ESTATE.  IN FACT, THERE IS STRONG EVIDENCE SHOWING
THAT HE INTENDED AFFIRMATIVELY TO MAKE A COMPLETE AND IRREVOCABLE
TRANSFER WHICH WOULD EXCLUDE ALL POSSIBILITY OF A REVERTER TO HIM.  THE
TRUST RECITED AS COMPLETE A TRANSFER AS ANY OUTRIGHT DEED OF GIFT WOULD
HAVE RECITED IF MADE DIRECTLY TO HIS CHILDREN, EXCEPT FOR THE NATURAL
FEATURE THAT, AT THEIR IMMATURE AGE, THE TRANSFER WAS MADE TO TRUSTEES
AND THESE TRUSTEES WERE REQUIRED BY THE IRREVOCABLE TERMS OF THE TRUST
TO DELIVER COMPLETE TITLE TO THE SETTLOR'S CHILDREN, OR TO THEIR
DESCENDANTS, AT A FUTURE DATE.  THE SETTLOR'S INTENT AND THE
COMPLETENESS OF THE TRANSFER WOULD HAVE BEEN NO MORE COMPLETE IF,
INSTEAD OF FIXING THE DATE FOR THE FUTURE DISTRIBUTION OF THE TRUST
PROPERTY AT THE DATE OF HIS OWN DEATH, HE HAD FIXED IT ARBITARARILY AT
DECEMBER 19, 1940, WHICH LATER PROVED TO BE THE DATE OF HIS DEATH.  THE
INTENT AND COMPLETENESS OF THE TRANSFER, SIMILARLY, WOULD HAVE BEEN NO
MORE COMPLETE IF HE HAD FIXED THE DATE OF TERMINATION OF THE TRUST TO
COINCIDE WITH THE DEATH OF A THIRD PERSON INSTEAD OF WITH HIS OWN
DEATH. 

            THE STATUTE REQUIRES A FINDING OF THE SETTLOR'S

                               INTENT. 

CONDITION OF THE APPLICATION OF THAT SECTION TO THIS CASE. 
ACCORDINGLY, IF THE SETTLOR HAD USED LANGUAGE IN HIS TRUST INSTRUMENT
WHICH EXPRESSLY, OR EVEN IMPLIEDLY, HAD CREATED OR RECOGNIZED A
POSSIBLE REVERTER IN FAVOR OF THE SETTLOR, THAT LANGUAGE IN ITSELF
WOULD HAVE BEEN EVIDENCE THAT THE SETTLOR HAD INTENDED THE TRUST TO
INCLUDE A REVERTER IN HIS FAVOR AND THAT HE HAD INTENDED THE TRUST
PROPERTY, IN THE EVENT OF A REALIZATION OF THAT REVERTER, TO PASS FROM
HIM TO HIS ESTATE, UNDER THE 1920 TRUST, UPON THE EXPIRATION OF THAT
TRUST AT HIS DEATH. 

IT IS, HOWEVER, IN THE COMPLETE ABSENCE OF SUCH LANGUAGE IN THE TRUST
INSTRUMENT THAT THE GOVERNMENT NOW CLAIMS THAT A POSSIBLE REVERTER HAS
ARISEN BY OPERATION OF LAW.  THE EXISTENCE OF SUCH A REVERTER,
ACCORDINGLY, MAY OR MAY NOT HAVE BEEN INTENDED IN FACT, AND MAY NOT
HAVE BEEN EVEN THOUGHT ABOUT BY THE SETTLOR.  TO SAY THAT THE SETTLOR
MUST HAVE INTENDED ALL THE LEGAL CONSEQUENCES OF HIS ACTS BEGS THE
QUESTION.  SO CONSTRUED, THE SECTION WOULD HAVE THE SAME MEANING AS IF
THE WORD "INTENDED" HAD BEEN OMITTED. 

"INTENDED" SHOULD BE GIVEN ITS NORMAL, FACTUAL MEANING.  TO INTEND
MEANS TO "HAVE IN MIND AS A DESIGN OR PURPOSE."  FN12  THE QUESTION OF
INTENT IS ONE OF FACT, DIFFICULT TO DETERMINE, BUT DETERMINABLE,
NEVERTHELESS.  SECTION 811(C) INVOLVES MORE THAN MERELY DETERMINING
WHETHER A TRANSFER TOOK EFFECT, AS A MATTER OF LAW, AT OR AFTER DEATH
OR WHETHER A "STRING OR TIE," AS A MATTER OF LAW, WAS RETAINED UNTIL
DEATH.  THERE REMAINS FOR DETERMINATION THE FACT WHETHER THE SETTLOR
DID ACTUALLY INTEND THAT THE 1920 TRANSFER TAKE EFFECT IN POSSESSION OR
ENJOYMENT UPON THE EXPIRATION OF THE TRUST AT HIS DEATH. 

OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER  ...
DEATH."  WE HAVE HELD THAT THE SETTLOR-DECEDENT'S MOTIVE MUST BE
DETERMINED BEFORE IT CAN BE HELD THAT A TRANSFER WAS IN CONTEMPLATION
OF DEATH.  UNITED STATES V. WELLS, 283 U.S. 102.  THAT CASE INCLUDED A
TRANSFER IN TRUST, INTER VIVOS, WHICH WAS HELD NOT TO HAVE BEEN MADE IN
"CONTEMPLATION OF  ...  DEATH."  SIMILARLY, FACTUAL INTENT SHOULD BE
FOUND IN ORDER TO DETERMINE WHETHER A TRANSFER WAS "INTENDED TO TAKE
EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER  ...  DEATH."  IN UNITED
STATES V. WELLS, CHIEF JUSTICE HUGHES, SPEAKING FOR THE COURT, SAID
(PP. 116-117): 

"THE QUALITY WHICH BRINGS THE TRANSFER WITHIN THE STATUTE IS
INDICATED BY THE CONTEXT AND MANIFEST PURPOSE.  TRANSFERS IN
CONTEMPLATION OF DEATH ARE INCLUDED WITHIN THE SAME CATEGORY, FOR THE
PURPOSE OF TAXATION, WITH TRANSFERS INTENDED TO TAKE EFFECT AT OR AFTER
THE DEATH OF THE TRANSFEROR.  THE DOMINANT PURPOSE IS TO REACH
SUBSTITUTES FOR TESTAMENTARY DISPOSITIONS AND THUS TO PREVENT THE
EVASION OF THE ESTATE TAX.  ...  AS THE TRANSFER MAY OTHERWISE HAVE ALL
THE INDICIA OF A VALID GIFT INTER VIVOS, THE DIFFERENTIATING FACTOR
MUST BE FOUND IN THE TRANSFEROR'S MOTIVE." 

IN CASES INVOLVING "CONTEMPLATION OF  ...  DEATH" UNDER SEC. 811(C)
THE REQUIRED MOTIVE IMPELLING A TRANSFER "IS A QUESTION OF FACT IN EACH
CASE."  SEE ALLEN V. TRUST CO. OF GEORGIA, 326 U.S. 630, 636.  SO ALSO,
IN EACH CASE UNDER SEC. 811(C), THE QUESTION WHETHER "THE DECEDENT HAS
AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE,  ...  INTENDED TO
TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS DEATH,  ...  "
SHOULD BE ONE OF FACT. 

IN DETERMINING THE ISSUE AS TO THE SETTLOR'S INTENT IN MAKING HIS
1920 TRANSFER, INTER VIVOS, IN THE PRESENT CASE, THE FOLLOWING
CONSIDERATIONS ARE MATERIAL AND PERSUASIVE: 

1.  LANGUAGE OF THE TRUST INSTRUMENT.  - THERE WAS NO LANGUAGE IN
THIS INSTRUMENT WHICH EXPRESSED OR EVEN AFFIRMATIVELY IMPLIED AN INTENT
TO MAKE A TRANSFER TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR
AFTER THE DEATH OF THE SETTLOR RATHER THAN IN PRAESENTI.  IF THE TRUST
INSTRUMENT HAD CONTAINED SUCH AN EXPRESS OR AFFIRMATIVELY IMPLIED
DECLARATION OF THE SETTLOR'S INTENT, IT MIGHT HAVE BEEN CONCLUSIVE OF
THE ISSUE.  IF THERE HAD BEEN EVEN A DESCRIPTION OF, OR REFERENCE TO, A
POSSIBLE REVERTER TO THE SETTLOR, THAT WOULD HAVE BEEN STRONG EVIDENCE
OF THE INTENT REQUIRED BY SEC. 811(C).  THE ABSENCE OF ANY SUCH
DESCRIPTION OR REFERENCE WAS CONSISTENT WITH A LACK OF INTENT THAT
THERE BE SUCH A REVERTER.  IT WAS NEGATIVE EVIDENCE TO THE EFFECT THAT
SUCH A REVERTER WAS NOT INTENDED AND NOT DESIRED BY THE SETTLOR. 

IN AN INSTRUMENT OF THIS KIND IT IS NATURAL FOR THE SETTLOR TO GIVE
AFFIRMATIVE EXPRESSION TO EACH BENEFICIAL USE TO WHICH HE INTENDS OR
DESIRES THE TRUST PROPERTY TO BE PUT.  IT CANNOT BE ARGUED EFFECTIVELY
IN THIS CASE THAT THE COMPLETE SILENCE OF THE TRUST INSTRUMENT ON THE
SUBJECT OF A POSSIBLE REVERTER OF THE TRUST PROPERTY TO THE SETTLOR OR
TO HIS ESTATE AMOUNTED TO AN EXPRESSION OF INTENT BY THE SETTLOR THAT
SUCH A REVERTER BE PERMITTED TO ARISE BY OPERATION OF LAW.  AS A MATTER
OF FACT, THE EXTRINSIC EVIDENCE PRESENTED IN THIS CASE TENDED TO
ESTABLISH AN OPPOSITE INTENT AND DESIRE.    IN THE PRESENT CASE, THE
OVERWHELMING IMPROBABILITY OF A COMPLETE FAILURE OF BENEFICIARIES WAS
SO COMPLETE THAT IT SUPPLIED A NATURAL REASON FOR OMITTING FURTHER
PROVISIONS FOR DISTRIBUTION OF THE TRUST PROPERTY.  THE LIKELIHOOD THAT
A 47-YEAR-OLD SETTLOR WOULD OUTLIVE HIS THREE CHILDREN AND ALSO HIS
PROSPECTIVE GRANDCHILDREN OBVIOUSLY WAS SMALL.  AS IT TURNED OUT, NONE
OF THE SETTLOR'S THREE CHILDREN PREDECEASED HIM, AND THE DISTRIBUTION
OF THE TRUST PROPERTY WAS MADE TO THEM WITHOUT REACHING HIS
GRANDCHILDREN.  THE FACTS OF THIS CASE AS THEY EXISTED IN 1920
PRESENTED TO THE SETTLOR QUITE A DIFFERENT PROBLEM FROM THAT WHICH
WOULD HAVE BEEN PRESENTED IF, AT THAT TIME, HE HAD NAMED AS THE ONLY
BENEFICIARY OF THE TRUST A PERSON WITH A LIFE EXPECTANCY OBVIOUSLY
SHORTER THAN HIS OWN. 

STANDING ALONE, THE INSTRUMENT EVIDENCES A SIMPLE TRANSFER IN
PRAESENTI, COMPARABLE TO THAT IN REINECKE V. NORTHERN TRUST CO., SUPRA.
THE LANGUAGE OF THE INSTRUMENT, THEREFORE, CERTAINLY DID NOT, IN
ITSELF, REQUIRE THE PROPERTY WHICH WAS TRANSFERRED, IN 1920, TO BE
INCLUDED, IN 1940, IN THE SETTLOR'S GROSS ESTATE FOR FEDERAL ESTATE TAX
PURPOSES.  IF ANYTHING, THE LANGUAGE ITSELF, READ IN THE LIGHT OF
ILLINOIS LAW AS STATED ABOVE IN THE DISCUSSION OF THE THIRD PROPOSAL
AND AS REGARDED BY THE SETTLOR IN THE LIGHT OF THE ADVICE OF HIS LEGAL
COUNSEL, IS EXPRESSIVE OF AN INTENT THAT THERE BE NO POSSIBILITY OF A
REVERTER, AND OF AN INTENT TO MAKE AN ABSOLUTE AND COMPLETE TRANSFER TO
THE TRUSTEES IN PRAESENTI. 

2.  REMOTENESS OF THE POSSIBLE REVERTER.  - THE REMOTENESS OF THE
POSSIBLE REALIZATION OF A SUGGESTED REVERTER (WHETHER ARISING FROM
EXPRESS PROVISION OF A TRUST OR BY OPERATION OF LAW) IS AN IMPORTANT
FACTOR IN ESTABLISHING THE PROBABLE INTENT OF THE SETTLOR OF ANY TRUST
TO MAKE, THEREBY, A TRANSFER TO TAKE EFFECT IN POSSESSION OR ENJOYMENT
AT OR AFTER HIS DEATH.  IF THE 1920 TRUST INSTRUMENT HAD NAMED AS ITS
SOLE BENEFICIARY A PERSON HAVING A COMPARATIVELY SHORT LIFE EXPECTANCY,
THEN, ASSUMING A REVERSION IN FAVOR OF THE SETTLOR UNDER ILLINOIS LAW,
THE POSSIBILITY OF ITS OCCURRENCE WOULD HAVE BEEN SUBSTANTIAL.  IT
WOULD HAVE BEEN SO GREAT THAT, IF THE SETTLOR HAD EXPRESSLY MENTIONED
SUCH A REVERSION IN THE TRUST INSTRUMENT, THAT MENTION OF IT WOULD HAVE
SUBSTANTIALLY DEMONSTRATED THE EXISTENCE OF THE INTENT REQUIRED BY SEC.
811(C).  EVEN IF THE SETTLOR HAD MADE NO EXPRESS MENTION OF SUCH A
REVERSION AND THUS HAD LEFT ITS EFFECTIVENESS WHOLLY TO THE OPERATION
OF THE LAW OF ILLINOIS, THE CIRCUMSTANCES THEMSELVES, INCLUDING THE
HIGH PROBABILITY OF THE REALIZATION OF THE REVERSION, WOULD HAVE
SUPPLIED IMPORTANT EVIDENCE UPON WHICH TO BASE A FINDING OF THE
REQUIRED INTENT ON THE PART OF THE SETTLOR.  HOWEVER, WITH THE
INCLUSION OF EACH ADDITIONAL YOUTHFUL BENEFICIARY OF THE TRUST, THE
BASIS FOR A CONCLUSION THAT THE SETTLOR INTENDED TO ESTABLISH A
REVERSION TO HIMSELF OR TO HIS ESTATE AND TO POSTPONE THE TRANSFER OF
THE POSSESSION OR ENJOYMENT OF THE PROPERTY UNTIL AT OR AFTER HIS DEATH
WAS WEAKENED. 

THE TAX COURT, UPON UNDISPUTED EVIDENCE, REDUCED TO A MATHEMATICAL
BASIS THE POSSIBILITY PRESENTED BY THE SUGGESTED REVERTER IN THIS
CASE.  THE COMPUTATIONS WERE STATED TO HAVE BEEN BASED UPON A MORTALITY
TABLE AND AN ASSUMED RATE OF INTEREST PRESCRIBED IN TREASURY
REGULATIONS AS APPLICABLE TO FEDERAL ESTATE TAXES.  THE COMPUTATIONS
ALSO WERE STATED TO HAVE BEEN BASED UPON ASSUMED AGES OF A SETTLOR AND
OF BENEFICIARIES CORRESPONDING SUBSTANTIALLY WITH THOSE STATED IN THE
FACTS OF THIS CASE.  THE COMPUTATIONS SHOWED THAT THE PROBABILITY THAT
A PERSON OF THE AGE OF THIS SETTLOR WOULD SURVIVE THREE PERSONS OF THE
RESPECTIVE AGES OF THE PRIMARY BENEFICIARIES WHO WERE LIVING AT THE
DATE OF THE CREATION OF THIS TRUST WAS ONLY 0.01612, OR ABOUT 1 1/2
CHANCES OUT OF 100.  SIMILARLY, THE VALUE OF THE RIGHT OF A PERSON, OF
THE AGE OF THE SETTLOR IN 1920, TO RECEIVE $1 ON THE DEATH OF THE LAST
OF THREE PERSONS OF THE AGES OF THE PRIMARY BENEFICIARIES WAS
$0.00390. 

IN 1920, THE MOST FAVORABLE COMPUTATION WOULD THUS HAVE PLACED A
VALUE OF LESS THAN $4,000 UPON THE SETTLOR'S INTEREST IN THE SUGGESTED
REVERTER RELATING TO A $1,000,000 TRUST FUND.  THESE COMPUTATIONS DO
NOT TAKE INTO CONSIDERATION THE ADDITIONAL POSSIBILITY THAT MANY
GRANDCHILDREN MIGHT HAVE BEEN BORN IN TIME TO QUALIFY AS BENEFICIARIES
OF THIS TRUST, AND THUS FURTHER REDUCE THE POSSIBILITY OF REVERTER.  IN
FACT, THREE SUCH GRANDCHILDREN WERE BORN IN TIME TO QUALIFY - THUS
REDUCING THE VALUE TO THE SETTLOR, IN 1940, OF THE SUGGESTED REVERTER,
ON A $1,000,000 TRUST FUND, TO ABOUT $70.  THE RELATION OF $70 TO
$1,000,000 ORDINARILY WOULD BE DE MINIMIS AND CERTAINLY NOT ONE WHICH
WOULD INDUCE CONGRESS TO PERMIT THE ASSESSMENT OF A TAX OF OVER
$450,000 BECAUSE OF ITS EXISTENCE. 

THIS DEMONSTRATION OF THE REMOTENESS OF THE POSSIBLE REVERTER, IF
ANY, IN THIS CASE IS PERSUASIVE AT LEAST IN SHOWING THE FACT TO HAVE
BEEN THAT THE SETTLOR, IN ESTABLISHING THIS TRUST, PROBABLY INTENDED IT
TO BE NOTHING OTHER THAN A COMPLETED GIFT TO THOSE OF HIS CHILDREN OR
THEIR DESCENDANTS WHO MIGHT SURVIVE HIM. 

IN 1920 THE GIFT, AS SUCH, WAS TAX-FREE.  SUCH A GIFT TODAY WOULD BE
SUBJECT TO A GIFT TAX.  THE ASSESSMENT OF A GIFT TAX UPON SUCH A
TRANSACTION EMPHASIZES THE IMPROPRIETY, RATHER THAN THE PROPRIETY, OF
ALSO APPLYING TO IT AN ESTATE TAX AT THE DEATH OF THE SETTLOR.  IN 1920
THE CHARACTER OF THE GIFT WAS THE SAME AS IT WOULD BE TODAY AND THE
FACT THAT IT WAS NOT SUBJECT TO A GIFT TAX THEN DOES NOT MAKE IT ANY
MORE SUBJECT TO THE 1940 ESTATE TAX THAN IF A GIFT TAX HAD BEEN PAID
UPON IT. 

3.  DIRECT EVIDENCE OF THE INTENT OF THE SETTLOR.  - SUBSTANTIAL
EVIDENCE CONFIRMED THE ABSENCE OF THE FACTUAL INTENT NECESSARY IN ORDER
TO MAKE SEC. 811(C) APPLICABLE.  THERE WAS NO DIRECT EVIDENCE
INDICATING THE EXISTENCE OF AN ACTUAL INTENT ON THE PART OF THE SETTLOR
TO PROVIDE FOR A REVERTER TO HIMSELF OR TO HIS ESTATE OR, IN ANY OTHER
MANNER, TO CAUSE HIS 1920 TRANSFER TO TRUSTEES FOR THE BENEFIT OF HIS
DESCENDANTS TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH. 

ON THE OTHER HAND, THERE WAS UNDISPUTED EVIDENCE INDICATING THE
ABSENCE OF SUCH AN INTENT.  IN FACT, IT INDICATED THE PROBABLE
EXISTENCE OF A CONTRARY INTENT.  THE ILLINOIS ATTORNEY WHO DREW THE
TRUST INSTRUMENT TESTIFIED THAT, PRIOR TO THE DRAFTING OF THE
INSTRUMENT, THE SETTLOR HAD STATED THAT HE DESIRED AND INTENDED THE
TRUST PROPERTY TO BE TRANSFERRED TO TRUSTEES FOR THE BENEFIT OF HIS
CHILDREN AND THAT HE WANTED AT NO TIME TO RETAIN ANY INTEREST IN IT.
THE ATTORNEY ADDED THAT, IN DRAFTING THE TRUST, HE HAD ENDEAVORED TO
CARRY OUT THE INSTRUCTIONS OF HIS CLIENT AND THAT HE BELIEVED HE HAD
DONE SO.  THAT ATTORNEY IS A MEMBER OF THE FIRM REPRESENTING THE ESTATE
OF THE SETTLORDECEDENT IN THE INSTANT CASE.  AS ATTORNEYS FOR THE
ESTATE OF THE 1940 DECEDENT, THEY ARGUE THAT, UNDER THE LAW OF
ILLINOIS, AS THEY UNDERSTOOD IT AND AS THEY ADVISED THEIR CLIENT IN
1920, THERE HAS NOT ARISEN ANY POSSIBILITY OF A REVERTER TO THE SETTLOR
UNDER THIS TRUST BY OPERATION OF LAW OR OTHERWISE.  THE RECEIPT OF THAT
OPINION BY THE SETTLOR AT THE TIME OF EXECUTING THE TRUST INSTRUMENT
SUPPORTS THE PETITIONERS' CONTENTION THAT THE SETTLOR THEN INTENDED TO
TRANSLATE INTO THIS ILLINOIS TRUST HIS PURPOSE TO MAKE AN ABSOLUTE AND
COMPLETE TRANSFER OF THE SUBJECT MATTER OF THE TRUST, AND THEREBY TO
MAKE IRREVOCABLE PROVISION FOR ITS FUTURE DISTRIBUTION. 

IN VIEW OF THE UNCONTROVERTED AND CONVINCING EVIDENCE OF THE ABSENCE
OF ANY SUCH FACTUAL INTENT ON THE PART OF THE SETTLOR AS IS REQUIRED TO
BRING HIS 1920 TRANSFER WITHIN THE TERMS OF SEC. 811(C), AND IN VIEW OF
THE JUDGMENT OF THE TAX COURT IN FAVOR OF THE SETTLOR-DECEDENT'S
EXECUTORS, THERE IS NO NEED TO REMAND THE CASE TO THAT COURT FOR A
FURTHER FINDING IN SUPPORT OF ITS JUDGMENT. 

FOR THE REASONS STATED IN THE FOREGOING DISCUSSION OF THE FIFTH
PROPOSAL, AND ALSO FOR THE REASONS STATED IN THE DISCUSSION OF THE
THIRD PROPOSAL TO THE EFFECT THAT NO POSSIBILITY OF A REVERTER AROSE IN
FAVOR OF THE SETTLOR BY OPERATION OF THE LAW OF ILLINOIS, I BELIEVE
THAT THE JUDGMENT OF THE UNITED STATES COURT OF APPEALS SHOULD BE
REVERSED. 

FN1  THE TERMS "REVERTER" AND "THE POSSIBILITY OF A REVERTER" HAVE
BEEN USED FREQUENTLY AND FREELY IN OPINIONS AND DISCUSSIONS OF THIS
GENERAL SUBJECT.  THEY ARE USED HERE TO REFER TO THE RETURN OR POSSIBLE
RETURN TO THE SETTLOR OR TO HIS ESTATE, UNDER CONDITIONS COMPARABLE TO
THOSE HERE SUGGESTED, OF PROPERTY PREVIOUSLY PLACED IN TRUST BY THE
SETTLOR.  THEY ARE NOT USED IN ANY STRICT OR TECHNICAL SENSE PECULIAR
TO THE LAW OF PROPERTY.  SEE ALSO, I PAUL, FEDERAL ESTATE AND GIFT
TAXATION SEC. 7.21, N. 1(1942).  THEY MAY REFER, FOR EXAMPLE, TO A
REVERSIONARY INTEREST, OR A BENEFICIAL INTEREST UNDER A RESULTING
TRUST, OR MERELY SOME RIGHT TO OR CONTROL OVER A BENEFICIAL INTEREST IN
THE TRUST PROPERTY AND, IN THAT SENSE, THEY INCLUDE THE "STRING OR TIE"
TO THE TRUST PROPERTY THAT ALSO HAS BEEN REFERRED TO FREQUENTLY IN
DISCUSSIONS OF THIS SUBJECT.  THE TERM "REVERSION" IS USED IN ITS USUAL
TECHNICAL MEANING IN THE LAW OF PROPERTY. 

FN2  THE SPIEGEL TRUST INSTRUMENT IS SET FORTH IN FULL IN APPENDIX I,
INFRA, P. 735. 

FN3  "SEC.  22.  GROSS INCOME. 

"(A)  GENERAL DEFINITION.  - 'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICE, OF WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER.  ..."  53 STAT. 9, 26 U.S.C. (1940 ED.)  SEC.  22(A). 

FN4  "...  THE SETTLOR RESERVED TO HIMSELF POWER TO SUPERVISE THE
REINVESTMENT OF TRUST FUNDS, TO REQUIRE THE TRUSTEE TO EXECUTE PROXIES
TO HIS NOMINEE, TO VOTE ANY SHARES OF STOCK HELD BY THE TRUSTEE, TO
CONTROL ALL LEASES EXECUTED BY THE TRUSTEE, AND TO APPOINT SUCCESSOR
TRUSTEES.  WITH RESPECT TO EACH OF THESE FIVE TRUSTS A POWER WAS ALSO
RESERVED 'TO ALTER, CHANGE OR MODIFY THE TRUST,' WHICH WAS TO BE
EXERCISED IN THE CASE OF FOUR OF THEM BY THE SETTLOR AND THE SINGLE
BENEFICIARY OF EACH TRUST, ACTING JOINTLY, AND IN THE CASE OF ONE OF
THE TRUSTS, BY THE SETTLOR AND A MAJORITY OF THE BENEFICIARIES NAMED,
ACTING JOINTLY."  278 U.S. AT P. 344. 

FN5  UPON THE REARGUMENT OF THE INSTANT CASE AND THE CHURCH CASE, WE
REQUESTED COUNSEL TO DISCUSS PARTICULARLY NINE QUESTIONS INSOFAR AS
THOSE QUESTIONS WERE RELEVANT TO THE RESPECTIVE CASES.  THE FIRST
QUESTION HAS BEEN QUOTED SUPRA AT P. 711.  THE REST ARE QUOTED BELOW
AND, OF THESE, NUMBERS 2, 6, 8 AND 9 BORE UPON THIS ALTERNATIVE
SOLUTION: 

"2.  ASSUMING THAT, UNDER THE APPLICABLE STATE LAW, THERE AROSE, BY
OPERATION OF LAW, A POSSIBLE REVERTER IN FAVOR OF THE SETTLOR'S ESTATE,
DID SECTION 811(C) REQUIRE THAT THE VALUE OF THE CORPUS, IN VIEW OF THE
RECORD IN THE CASE, BE INCLUDED IN THE SETTLOR'S GROSS ESTATE FOR
FEDERAL ESTATE-TAX PURPOSES? 

"3.  DID SECTION 811(C) OF THE INTERNAL REVENUE CODE, IN 1939,
REQUIRE THE INCLUSION IN THE SETTLOR'S GROSS ESTATE OF THE VALUE OF THE
CORPUS OF A TRUST BECAUSE THE SETTLOR, BY ITS TERMS, HAD, IN 1924,
RESERVED TO HIMSELF A RIGHT TO THE INCOME OF THE TRUST UNTIL HIS DEATH,
THE RESERVATION THUS BEING MADE BEFORE THE MARCH 3, 1931, AMENDMENT OF
THAT SECTION? 

"4.  WERE THE JOINT CONGRESSIONAL RESOLUTION OF 1931(46 STAT. 1516
1517), AND SUBSEQUENT RELATED ESTATE-TAX STATUTES, INTENDED TO BE A
REPUDIATION OF THIS COURT'S MAY V. HEINER (281 U.S. 238) INTERPRETATION
OF THE ESTATE-TAX STATUTES? 

"5.  DID THE MAY V. HEINER ESTATE-TAX INTERPRETATION SURVIVE THE
CONGRESSIONAL RESOLUTION AND THIS COURT'S HOLDING AND OPINION IN
HELVERING V. HALLOCK (309 U.S. 106)? 

"6.  UNDER SECTION 811(C) IS THE 'POSSESSION AND ENJOYMENT' OF THE
CORPUS OF AN INTER VIVOS TRUST 'INTENDED TO TAKE EFFECT  ***  AT OR
AFTER' THE SETTLOR'S DEATH, WHERE HE NAMES HIMSELF AS COTRUSTEE WITH
THE BROAD CONTROL AND ADMINISTRATIVE POWERS OVER THE CORPUS AND INCOME
HERE VESTED, AND WHERE THE CORPUS IS WITHHELD FROM THE BENEFICIARIES
UNTIL THE SETTLOR'S DEATH? 

"7.  IN THE LIGHT OF THIS COURT'S OPINION IN HELVERING V. HALLOCK
DOES THE HASSETT V. WELCH (303 U.S. 303) INTERPRETATION OF THE 1931
CONGRESSIONAL RESOLUTION HAVE CONTROLLING RELEVANCE IN DETERMINING
WHETHER THE ESTATE TAX SHALL BE APPLIED TO THE CHURCH PROPERTIES
TRANSFERRED TO BENEFICIARIES UNDER A TRUST CREATED BEFORE 1931 BUT IN
WHICH CHURCH RETAINED THE NET INCOME FROM THE TRUST PROPERTIES DURING
HIS LIFE? 

"8.  ASSUMING THAT UNDER THE 'REFINED TECHNICALITIES OF THE LAW OF
PROPERTY' THE 'POSSESSION AND ENJOYMENT' OF THE TRUST PROPERTIES HERE
BE DEEMED TO HAVE PASSED TO THE BENEFICIARIES WHEN THE TRUST WAS
CREATED, ARE THE TRANSFERS SO MUCH 'AKIN TO TESTAMENTARY DISPOSITIONS'
AS TO MAKE THEM SUBJECT TO THE ESTATE-TAX STATUTES?  (SEE HELVERING V.
HALLOCK, P. 112.) 

"9.  WHAT IS THE EFFECT OF THE RULINGS OF HELVERING V. CLIFFORD (309
U.S. 331) UPON THESE TRUSTS?"  JOURNAL SUPREME COURT, OCT. TERM, 1947,
PP. 297-298. 

FN6  A SOMEWHAT COMPARABLE BUT LESS DIRECT CONFLICT IS PRESENTED BY
GOLDSTONE V. UNITED STATES, 325 U.S. 687.  THERE SUBSTANTIALLY COMPLETE
CONTROL OVER THE DISPOSITION OF THE PROCEEDS OF INSURANCE CONTRACTS WAS
PLACED BY THE INSURED IN THE DISCRETION OF HIS WIFE, WHO ALSO WAS THE
PRIMARY BENEFICIARY.  A MINORITY OF THIS COURT SOUGHT TO APPLY THE
DOCTRINES OF THE HALLOCK CASE AND THE RATIONALE WHICH INHERES IN THE
CLIFFORD CASE TO THE EXTENT OF RECOGNIZING THE TRANSACTION AS, IN
SUBSTANCE, A COMPLETED GIFT TO THE WIFE OF THE INSURED, AND THEREFORE
NOT SUBJECT TO THE ESTATE TAX.  THIS COURT, HOWEVER, DID NOT, IN THAT
CASE, APPLY THE CLIFFORD DOCTRINE TO THE ESTATE TAX.  BUT SEE
RICHARDSON V. COMMISSIONER, 121 F.2D 1(C.A.2D CIR.), CERT. DENIED, 314
U.S. 684, WHERE IT WAS HELD THAT, UNDER THE CLIFFORD CASE, A TRUSTEE,
WITH A BROAD POWER OF REVOCATION WHICH MIGHT AT ANY TIME BE EXERCISED
FOR HIS OWN BENEFIT, WAS HIMSELF LIABLE FOR THE INCOME TAX ON THE
INCOME OF THE TRUST.  SEE ALSO, BUNTING V. COMMISSIONER, 164 F.2D
443(C.A.6TH CIR.), CERT. DENIED, 333 U.S. 856; 47 MICH. L. REV.
137(1948). 

FN7  SEE HELVERING V. STUART, 317 U.S. 154, 163-164; MACGREGOR V.
STATE MUTUAL CO., 315 U.S. 280. 

FN8  "APPLYING THIS LAW TO THE INSTANT CASE, WE THINK IT FOLLOWS THAT
THE INTERESTS UNDER THIS TRUST DID NOT VEST UPON THE EXECUTION OF THE
TRUST, AS CONTENDED BY THE TAXPAYER, AND COULD ONLY VEST UPON THE
HAPPENING OF THE CONDITION PRECEDENT, NAMELY, THAT THE BENEFICIARIES OR
SOME OF THEM SURVIVE THE SETTLOR, AND THIS WAS THE 'EVENT WHICH BROUGHT
THE LARGER ESTATE INTO BEING FOR THE' BENEFICIARIES."  COMMISSIONER V.
SPIEGEL'S ESTATE, 159 F.2D 257, 259. 

FN9  "WHERE PROPERTY IS GIVEN IN TRUST FOR ONE BENEFICIARY FOR LIFE
AND TO ANOTHER BENEFICIARY IN REMAINDER, AND BEFORE THE TERMINATION OF
THE TRUST THE LATTER BENEFICIARY DIES INTESTATE AND WITHOUT HEIRS OR
NEXT OF KIN, IT WOULD SEEM THAT HIS INTEREST PASSES TO THE STATE, AND
THAT A RESULTING TRUST WILL NOT ARISE IN FAVOR OF THE SETTLOR OR HIS
ESTATE.  IN SUCH A CASE, SINCE THE ENTIRE BENEFICIAL INTEREST, SUBJECT
TO THE PRECEDING LIFE ESTATE IN THE OTHER BENEFICIARY, VESTED IN THE
BENEFICIARY ENTITLED IN REMAINDER ABSOLUTELY AT THE TIME OF THE
CREATION OF THE TRUST, IT WOULD SEEM THAT THE TRUST DOES NOT FAIL ON
HIS DEATH, SO AS TO GIVE RISE TO A RESULTING TRUST, BUT HIS INTEREST
PASSES TO THE STATE AS ULTIMUS HAERES.  ON THE OTHER HAND, IF THE
BENEFICIAL GIFT OVER IS CONTINGENT, AND THE CONTINGENCY DOES NOT OCCUR,
A RESULTING TRUST WILL ARISE IN FAVOR OF THE SETTLOR OR HIS ESTATE."  3
SCOTT ON TRUSTS, SEC. 411.5(1939). 

FN10  THE ILLINOIS CASES ESTABLISH THE RULE THAT, WHEN A VESTED
ESTATE IN REMAINDER HAS BEEN CREATED, THE DIVESTMENT OF THAT ESTATE IN
FAVOR OF SOME OTHER BENEFICIARY CAN TAKE PLACE ONLY IN LITERAL
COMPLIANCE WITH THE DIVESTING CONDITIONS SET FORTH BY THE SETTLOR. 
HENDERSON V. HARNESS, 176 ILL. 302, 52 N.E. 68.  SEE ILLINOIS LAND CO.
V. BONNER, 75 ILL. 315; MCFARLAND V. MCFARLAND, 177 ILL. 208, 217, 52
N.E. 281, 284; AND CONTINENTAL ILLINOIS NAT. BANK V. KANE, 308 ILL.
APP. 110, 31 N.E.2D 351.  SEE ALSO, 42 ILL. L. REV. 561, 564.  THIS
DOES NOT LEAVE ROOM FOR REVERSION TO THE SETTLOR BY OPERATION OF LAW. 

FN11  THE BASIS OF DISTINCTION NECESSARILY RESTS WITH THE FORM OF THE
STATEMENT EMPLOYED.  A CLASSIC DEFINITION OF THE DISTINCTION BETWEEN
CONTINGENT AND VESTED REMAINDERS IS THAT IN GRAY, THE RULE AGAINST
PERPETUITIES, SEC. 108, QUOTED AS FOLLOWS IN LACHENMYER V. GEHLBACH,
266 ILL. 11, 18-19, 107 N.E. 202, 205: 

"A TEST WHICH IS GENERALLY REGARDED AS SUFFICIENT TO DETERMINE THE
QUESTION AND WHICH HAS BEEN GENERALLY ADOPTED IS STATED AS FOLLOWS:
'IF THE CONDITIONAL ELEMENT IS INCORPORATED INTO THE DESCRIPTION OF OR
INTO THE GIFT TO THE REMAINDER-MAN THEN THE REMAINDER IS CONTINGENT,
BUT IF, AFTER WORDS GIVING A VESTED INTEREST, A CLAUSE IS ADDED
DIVESTING IT THE REMAINDER IS VESTED.  THUS, ON A DEVISE TO A FOR LIFE,
REMAINDER TO HIS CHILDREN, BUT IF ANY CHILD DIES IN THE LIFETIME OF A
HIS SHARE TO GO TO THOSE WHO SURVIVE, THE SHARE OF EACH CHILD IS
VESTED, SUBJECT TO BE DIVESTED BY ITS DEATH.  BUT ON A DEVISE TO A FOR
LIFE, REMAINDER TO SUCH OF HIS CHILDREN AS SURVIVE HIM, THE REMAINDER
IS CONTINGENT.'" 

THE LANGUAGE IN THE SPIEGEL AND THE LACHENMYER TRUSTS IS CLOSELY
COMPARABLE.  IN EACH CASE THE GIFT TO CHILDREN OF THE SETTLOR IS A
VESTED GIFT.  IN THE SPIEGEL TRUST THE CHILDREN'S INTEREST WAS A VESTED
PRIMARY INTEREST (SUBJECT TO CONDITIONS SUBSEQUENT) AND IN THE
LACHENMYER TRUST THE CHILDREN'S INTEREST WAS A VESTED REMAINDER
FOLLOWING A LIFE INTEREST IN FAVOR OF THE TESTATOR'S WIFE (AND IN TURN
SUBJECT TO CONDITIONS SUBSEQUENT).  IN BOTH CASES THE LANGUAGE MAKING
THE GIFTS OVER IS IN THE FORM OF A DIVESTITURE - COMPARABLE TO THAT IN
THE CLASSIC EXAMPLE QUOTED ABOVE "BUT IF ANY CHILD DIES IN THE LIFETIME
OF A HIS SHARE TO GO TO THOSE WHO SURVIVE,  ..." 

THE MATERIAL PROVISION OF THE SPIEGEL TRUST, ITALICS SUPPLIED, IS AS
FOLLOWS: 

"3.  UPON MY DEATH, THE SAID TRUSTEES, AND THE SURVIVOR OF THEM, OR
ANY SUCCESSOR TRUSTEE, SHALL DIVIDE SAID TRUST FUND, AND ANY
ACCUMULATED INCOME THEREON THEN IN THE HANDS OF SAID TRUSTEES, EQUALLY
AMONG MY SAID THREE (3) CHILDREN, AND IF ANY OF MY SAID CHILDREN SHALL
HAVE DIED, LEAVING ANY CHILD OR CHILDREN SURVIVING, THEN THE CHILD OR
CHILDREN OF SUCH DECEASED CHILD OF MINE SHALL RECEIVE THE SHARE OF SAID
TRUST FUND TO WHICH ITS OR THEIR PARENT WOULD HAVE BEEN ENTITLED, AND
IF ANY OF MY SAID THREE (3) CHILDREN SHALL HAVE DIED WITHOUT LEAVING
ANY CHILD OR CHILDREN HIM OR HER SURVIVING, THEN THE SHARE TO WHICH
SUCH DECEASED CHILD OF MINE WOULD HAVE BEEN ENTITLED SHALL GO TO MY
REMAINING CHILDREN, AND THE DESCENDANTS OF ANY DECEASED CHILD OF MINE
PER STIRPES AND NOT PER CAPITA." 

THE CORRESPONDING PROVISION OF THE LACHENMYER TRUST, ITALICS
SUPPLIED, IS AS FOLLOWS: 

"THIRD - AFTER THE DEATH OF MY SAID WIFE ALL OF SAID PROPERTY AND
ESTATE ABOVE MENTIONED AND DESCRIBED TO GO TO MY CHILDREN, SHARE AND
SHARE ALIKE, AND SHALL ANY OF MY CHILDREN DIE, THEN THE CHILDREN OF
SUCH DECEASED CHILD, SHOULD ANY CHILDREN BE SURVIVING SUCH DECEASED
CHILD, TO TAKE THE SHARE OF THE PARENT SO DECEASED; AND SHOULD ANY OF
MY CHILDREN DIE LEAVING NO ISSUE, THEN THE SHARE OF SUCH DECEASED CHILD
SHALL BE DIVIDED EQUALLY AMONG MY SURVIVING CHILDREN."  LACHENMYER V.
GEHLBACH, SUPRA, AT P. 13. 

CONTRASTING PROVISIONS, SPECIFICALLY RECOGNIZED BY THE COURT BELOW AS
EXAMPLES OF CONTINGENT REMAINDERS IN AN INTER VIVOS TRUST, ARE FOUND IN
KLEIN V. UNITED STATES, 283 U.S. 231, 232-233.  THE COURT BELOW ALSO
CITED HAWARD V. PEAVEY, 128 ILL. 430, 21 N.E. 503, AND BALEY V.
STRAHAN, 314 ILL. 213, 145 N.E. 359, INVOLVING WILLS AND RECOGNIZING
THE CONTINGENT CHARACTER OF THE REMAINDERS IN THE KLEIN CASE. 

FN12  WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2D ED. (1938). 

             APPENDIXES TO MR. JUSTICE BURTON'S DISSENT. 

                             APPENDIX I. 

THE TRUST INSTRUMENT WHICH IS THE SUBJECT OF THE DECISION IN SPIEGEL
V. COMMISSIONER, ANTE, P. 701, IS AS FOLLOWS: 

"KNOW ALL MEN BY THESE PRESENTS, THAT I, SIDNEY M. SPIEGEL, OF THE
CITY OF CHICAGO, COUNTY OF COOK AND STATE OF ILLINOIS, IN CONSIDERATION
OF ONE DOLLAR ($1.00) AND OTHER GOOD AND VALUABLE CONSIDERATIONS, HAVE
SOLD, TRANSFERRED, ASSIGNED, SET OVER AND DELIVERED, AND BY THESE
PRESENTS DO SELL, TRANSFER, ASSIGN, SET OVER AND DELIVER TO MODIE J.
SPIEGEL AND SIDNEY M. SPIEGEL, AND THE SURVIVOR OF THEM, AS TRUSTEES,
SIX HUNDRED TWENTY-FIVE (625) SHARES OF THE CAPITAL STOCK OF SPIEGEL'S
HOUSE FURNISHING COMPANY AND SEVEN HUNDRED FIFTY (750) SHARES OF THE
CAPITAL STOCK OF SPIEGEL MAY STERN COMPANY, IN TRUST, NEVERTHELESS, FOR
THE FOLLOWING USES AND PURPOSES, AND UPON THE FOLLOWING TERMS AND
CONDITIONS:   - 

"1:  THE SAID TRUSTEES, AND THE SURVIVOR OF THEM, OR ANY SUCCESSOR
TRUSTEE, SHALL HAVE FULL, ABSOLUTE AND COMPLETE POWER TO HOLD, MANAGE
AND CONTROL SAID SHARES AND EVERY PART THEREOF; TO SELL, EXCHANGE,
TRANSFER OR OTHERWISE DISPOSE OF THE SAME, OR ANY PART THEREOF, AND TO
INVEST AND REINVEST THE PROCEEDS DERIVED FROM ANY SUCH SALE OR SALES,
OR OTHER DISPOSITION OF SAID SHARES, OR ANY PART THEREOF, DURING THE
CONTINUANCE OF THIS TRUST.  WHILE SAID SHARES OF STOCK, OR ANY
SUBSTITUTES THEREFOR, ARE HELD BY SAID TRUSTEES, OR THE SURVIVOR OF
THEM, OR ANY SUCCESSOR TRUSTEE, IF ANY CORPORATION WHOSE STOCK OR OTHER
SECURITIES ARE HELD BY SAID TRUSTEES SHOULD REQUIRE ANY ACTION OF ANY
KIND TO BE TAKEN, SAID TRUSTEES, AND THE SURVIVOR AND ANY SUCCESSOR
TRUSTEE, SHALL HAVE THE SAME RIGHT TO TAKE ANY ACTION WHICH MAY BE
REQUIRED OF ANY STOCKHOLDER OR HOLDER OF ANY SECURITIES OF ANY SUCH
CORPORATION AS IF SAID TRUSTEES, AND THE SURVIVOR AND ANY SUCCESSOR
HELD SUCH SHARES OR SAID SECURITIES IN THEIR OWN INDIVIDUAL NAMES AND
WERE THE SOLE OWNERS THEREOF. 

"2:  THE TRUSTEES, AND THE SURVIVOR OF THEM, AND ANY SUCCESSOR
TRUSTEE, SHALL COLLECT AND RECEIVE ALL INCOME DERIVED THEREFROM, OR
FROM ANY SUBSTITUTES THEREFOR, AND SHALL DURING THE LIFE OF MYSELF,
SAID SIDNEY M. SPIEGEL, DIVIDE SAID NET INCOME INTO THREE (3) EQUAL
PARTS, AND PAY OR USE ONE OF SAID PARTS OF SAID INCOME TO OR FOR THE
MAINTENANCE, SUPPORT AND EDUCATION OF MY THREE (3) CHILDREN, KATHERINE
J. SPIEGEL, SIDNEY M. SPIEGEL, JR. AND JULIA K. SPIEGEL,  - SUCH INCOME
TO BE DISTRIBUTED AT CONVENIENT INTERVALS EACH YEAR.  IN THE EVENT THAT
ANY OF MY SAID THREE (3) CHILDREN SHALL DIE PRIOR TO MY DEATH, THEN THE
SHARE OF SUCH INCOME TO WHICH SUCH DECEASED ONE OF SAID THREE (3)
CHILDREN WOULD HAVE BEEN ENTITLED SHALL GO TO THE CHILD OR CHILDREN OF
SUCH DECEASED CHILD OF MINE, IN EQUAL PARTS, AND IF THERE BE NO SUCH
CHILD OR CHILDREN OF ANY SUCH DECEASED CHILD OF MINE, THEN SUCH INCOME
SHALL BE DIVIDED EQUALLY AMONG THE SURVIVORS OF SAID THREE (3) CHILDREN
OF MINE, AND THEIR DESCENDANTS, PER STIRPES AND NOT PER CAPITA. 

"3:  UPON MY DEATH, THE SAID TRUSTEES, AND THE SURVIVOR OF THEM, OR
ANY SUCCESSOR TRUSTEE, SHALL DIVIDE SAID TRUST FUND, AND ANY
ACCUMULATED INCOME THEREON THEN IN THE HANDS OF SAID TRUSTEES, EQUALLY
AMONG MY SAID THREE (3) CHILDREN, AND IF ANY OF MY SAID CHILDREN SHALL
HAVE DIED, LEAVING ANY CHILD OR CHILDREN SURVIVING, THEN THE CHILD OR
CHILDREN OF SUCH DECEASED CHILD OF MINE SHALL RECEIVE THE SHARE OF SAID
TRUST FUND TO WHICH ITS OR THEIR PARENT WOULD HAVE BEEN ENTITLED, AND
IF ANY OF MY SAID THREE (3) CHILDREN SHALL HAVE DIED WITHOUT LEAVING
ANY CHILD OR CHILDREN HIM OR HER SURVIVING, THEN THE SHARE TO WHICH
SUCH DECEASED CHILD OF MINE WOULD HAVE BEEN ENTITLED SHALL GO TO MY
REMAINING CHILDREN, AND THE DESCENDANTS OF ANY DECEASED CHILD OF MINE
PER STIRPES AND NOT PER CAPITA. 

"4:  IF DURING THE CONTINUANCE OF THIS TRUST THERE SHALL BE ANY
INCREASE IN THE PRINCIPAL OF SAID TRUST ESTATE BY REASON OF THE
DECLARATION OF ANY STOCK DIVIDENDS OR OTHER INCREASES OR EMOLUMENTS ALL
SUCH INCREASES SHALL BE AND REMAIN A PART OF SAID TRUST ESTATE AND
SHALL BE HELD BY SAID TRUSTEES UPON THE SAME TERMS AND CONDITIONS AS
ARE HEREIN SET FORTH. 

"5:  IN THE EVENT OF THE DEATH, REFUSAL, INABILITY, OR FAILURE FOR
ANY REASON TO ACT OF BOTH SAID TRUSTEES AT ANY TIME DURING THE
CONTINUANCE OF THIS TRUST, THEN THE CHICAGO TITLE & TRUST COMPANY SHALL
BECOME THE SUCCESSOR TRUSTEE, WITH THE SAME RIGHTS, POWERS, DUTIES AND
OBLIGATIONS AS ARE HEREIN VESTED IN AND IMPOSED UPON THE TRUSTEES, AND
THE SURVIVOR THEREOF, HEREINBEFORE NAMED. 

"6:  NONE OF THE BENEFICIARIES OF THE TRUST ESTATE SHALL AT ANY TIME
BE PERMITTED TO ANTICIPATE THE PAYMENTS TO WHICH ANY OF THEM MAY BE
ENTITLED HEREUNDER BY ANY ORDER, ASSIGNMENT OR OTHERWISE. 

"IN WITNESS WHEREOF I HAVE HEREUNTO SET MY HAND AND SEAL, AT CHICAGO,
ILLINOIS, AS OF THE 2ND DAY OF JANUARY, 1920. 

                                      SIDNEY M. SPIEGEL.  (SEAL) 

"WE HEREBY ACCEPT THE ABOVE-NAMED SHARES OF STOCK AND AGREE TO HOLD
THE SAME SUBJECT TO THE TERMS ABOVE-MENTIONED, AS OF THE 2ND DAY OF
JANUARY, 1920. 

                                MODIE J. SPIEGEL.  (SEAL)

                                      SIDNEY M. SPIEGEL.  (SEAL)"

                             APPENDIX II. 

THE NORTHERN TRUST COMPANY TRUST INSTRUMENT NO. 4477, WHICH IS ONE OF
THE "FIVE TRUSTS" CONSIDERED IN REINECKE V. NORTHERN TRUST CO., 278
U.S. 339, IS AS FOLLOWS (ITALICS SUPPLIED): 

"THIS INDENTURE, MADE THIS FIRST DAY OF MARCH, IN THE YEAR OF OUR
LORD ONE THOUSAND NINE HUNDRED AND NINETEEN (A.D. 1919), BY AND BETWEEN
ADOLPHUS C. BARTLETT, OF THE CITY OF CHICAGO, COUNTY OF COOK, AND STATE
OF ILLINOIS, THE PARTY OF THE FIRST PART, AND THE NORTHERN TRUST
COMPANY (HEREINAFTER TERMED THE 'TRUSTEE'), OF CHICAGO, A CORPORATION
ORGANIZED AND DOING BUSINESS UNDER THE LAWS OF THE STATE OF ILLINOIS,
THE PARTY OF THE SECOND PART, WITNESSETH:

                            "ARTICLE FIRST 

"THAT THE PARTY OF THE FIRST PART, BEING DESIROUS OF ESTABLISHING AND
CREATING THE TRUST HEREINAFTER MENTIONED, FOR THE PURPOSES AND UPON THE
TERMS SET FORTH, IN CONSIDERATION OF THE PREMISES AND INFLUENCED BY
LOVE AND AFFECTION FOR THE BENEFICIARIES HEREINAFTER NAMED, DOES HEREBY
SELL, ASSIGN, TRANSFER, AND SET OVER UNTO THE TRUSTEE THE FOLLOWING
SECURITIES, TO WIT: 

1,000 SHARES OF THE STOCK OF THE NORTHERN TRUST COMPANY.  784 SHARES
OF THE STOCK OF THE COMMONWEALTH EDISON COMPANY.  300 SHARES OF THE
STOCK OF THE ILLINOIS CENTRAL RAILROAD COMPANY.  300 SHARES OF THE
COMMON STOCK OF THE CHICAGO & NORTHWESTERN RAILROAD COMPANY.  200
SHARES OF THE PREFERRED STOCK OF THE CHICAGO & NORTHWESTERN RAILROAD
COMPANY.  100 SHARES OF THE STOCK OF THE PULLMAN COMPANY.  5 BONDS OF
ARMOUR & COMPANY, FOR $1,000 EACH.  15 BONDS OF MORRIS & COMPANY, FOR
$1,000 EACH. 

"ALSO THE FOLLOWING-DESCRIBED NOTES SECURED BY MORTGAGE ON REAL
ESTATE IN PHOENIX, ARIZONA: 

MAKER:     AMOUNT 

ROLLIN S. HOWARD............................. 5,000.00    W. S.
DORMAN.................................   5,000.00 

EDGAR O. FAUCETT.............................  22,500.00 

ELISHA T. WATERS.............................   5,000.00 

ROY S. GOODRICH..............................  40,000.00 

WILSON W. DOBSON.............................   7,000.00 

REDWELL MUSIC COMPANY........................  20,000.00 

PAULINE M. O'NEIL............................  25,000.00 

PAULINE M. O'NEIL............................   5,000.00    TO BE
HELD AND DISPOSED OF UNDER AND IN PURSUANCE OF THIS INDENTURE. 

                      "ARTICLE SECOND 

"THE TRUSTEE SHALL HAVE POWER AND AUTHORITY AT ANY TIME, AND FROM
TIME TO TIME - 

"(1)  TO RECEIVE AND COLLECT ALL DIVIDENDS DECLARED AND PAID UPON ANY
SHARES OF STOCK AT ANY TIME SUBJECT TO THE TERMS OF THIS AGREEMENT, AND
THE INTEREST UPON ALL MONEYS, BONDS, AND OBLIGATIONS AT ANY TIME HELD
BY IT HEREUNDER, AND ALSO ALL RENTS AND OTHER INCOME WHICH SHALL ACCRUE
OR BECOME DUE AND PAYABLE ON OR FROM ANY OF THE TRUST ESTATE
HEREUNDER. 

"(2)  TO SELL, TRANSFER, ASSIGN, AND CONVEY ANY OR ALL OF THE STOCKS,
BONDS, OBLIGATIONS, SECURITIES, REAL ESTATE, OR OTHER PROPERTY HELD AT
ANY TIME BY SAID TRUSTEE UNDER THIS INSTRUMENT, AND TO INVEST AND
REINVEST THE PROCEEDS THEREOF IN EITHER REAL OR PERSONAL PROPERTY,
INCLUDING DIVIDEND-PAYING STOCKS OF CORPORATIONS; PROVIDED, HOWEVER,
THAT DURING THE LIFE OF SAID PARTY OF THE FIRST PART SAID TRUSTEE SHALL
BE GOVERNED BY ANY INSTRUCTIONS OR DIRECTIONS IN WRITING GIVEN TO IT BY
SAID PARTY OF THE FIRST PART IN REGARD TO THE MANAGEMENT, SALE, OR
INVESTMENT OF ANY PART OF THE SAID TRUST ESTATE, AND SAID TRUSTEE SHALL
BE FREE FROM ANY LIABILITY OR RESPONSIBILITY FOR ANY ACTION BY IT DONE
UNDER OR IN PURSUANCE OF ANY SUCH WRITTEN DIRECTION OR INSTRUCTION.  IN
NO EVENT SHALL ANY PURCHASER FROM THE TRUSTEE, OR ANY PERSON OR
CORPORATION DEALING WITH THE TRUSTEE, BE REQUIRED TO ASCERTAIN THE
AUTHORITY AND POWER OF THE TRUSTEE TO MAKE ANY SALE, CONVEYANCE, OR
TRANSFER OF ANY PART OF THE TRUST ESTATE HELD HEREUNDER, BUT EVERY SUCH
PURCHASER AND ALL OTHER PARTIES SHALL BE ENTITLED TO RELY UPON THE
DELIVERY OF THE TRANSFER, ASSIGNMENT, OR CONVEYANCE BY THE TRUSTEE OF
ANY OR ALL OF SAID TRUST ESTATE AS HAVING BEEN IN ALL RESPECTS FULLY
AUTHORIZED, AND SHALL NOT BE AFFECTED BY ANY NOTICE TO THE CONTRARY, OR
BE REQUIRED TO SEE TO THE APPLICATION OF THE PURCHASE MONEY. 

"(3)  TO EXERCISE THE VOTING POWER UPON ALL SHARES OF STOCK HELD BY
THE TRUSTEE HEREUNDER, AND TO EXERCISE EVERY POWER, ELECTION, AND
DISCRETION, GIVE EVERY NOTICE, MAKE EVERY DEMAND, AND DO EVERY ACT AND
THING IN RESPECT OF ANY SHARES OF STOCK OR BONDS, OR OTHER OBLIGATIONS
AND SECURITIES HELD BY THE TRUSTEE HEREUNDER, WHICH IT MIGHT OR COULD
DO IF IT WERE THE ABSOLUTE OWNER THEREOF; PROVIDED, HOWEVER, THAT UPON
THE WRITTEN REQUEST OF SAID FIRST PARTY IT SHALL BE THE DUTY OF THE
TRUSTEE TO EXECUTE, OR CAUSE TO BE EXECUTED, TO THE PERSON OR PERSONS
NAMED IN SUCH REQUESTS A PROXY, ENTITLING HIM OR THEM (WITH FULL POWER
OF SUBSTITUTION) TO VOTE IN RESPECT OF ANY SHARES OF STOCK IN SUCH
WRITTEN REQUEST OR PROXY DEFINED AND MENTIONED, AT ANY MEETING OR
MEETINGS OF THE STOCKHOLDERS OF ANY CORPORATION OR CORPORATIONS
SPECIFIED IN SUCH REQUEST AND PROXY. 

"(4)  TO RECEIVE ANY AND ALL STOCK DIVIDENDS DECLARED, AND ANY OTHER
DISTRIBUTION WHICH MAY BE MADE BY ANY CORPORATION, ANY OF WHOSE SHARES
OF STOCK AT THE TIME CONSTITUTE A PART OF THE PRINCIPAL OF THE TRUST
ESTATE, AND ALSO ALL PROCEEDS WHICH MAY BE PAID ON OR IN RESPECT OF ANY
SUCH SHARES OF STOCK ON THE LIQUIDATION OF THE COMPANY ISSUING THE
SAME, OR UPON THE SALE (WHETHER VOLUNTARY OR INVOLUNTARY) OF ITS
ASSETS, OR ANY PART THEREOF, OR WHICH MAY BE OTHERWISE PAID OUT OF
CAPITAL OR ON ACCOUNT OF THE PRINCIPAL OF ANY BOND, STOCK, OR OTHER
SECURITY; AND MAY IN ITS DISCRETION JOIN IN ANY PLAN OF REORGANIZATION
OR OF READJUSTMENT OF ANY CORPORATION, ANY OF WHOSE SHARES OF STOCK,
BONDS, OR OTHER SECURITIES OR OBLIGATIONS MAY AT ANY TIME CONSTITUTE A
PART OF THE PRINCIPAL OF THE TRUST ESTATE, AND ACCEPT THE SUBSTITUTED
SECURITIES IN AND BY SAID PLAN ALLOTTED IN RESPECT TO THE SECURITIES
AND OBLIGATIONS SO HELD BY THE TRUSTEE. 

"(5)  TO EXECUTE LEASES OF ANY REAL ESTATE WHICH SHALL FORM A PART OF
THE SAID TRUST AT ANY TIME, AT SUCH RENTAL, AND UPON SUCH TERMS, AND
FOR SUCH LENGTH OF TIME (NOT EXCEEDING TWO HUNDRED (200) YEARS) AS IT
MAY DEEM BEST; TO ERECT BUILDINGS, OR TO CHANGE, ALTER, OR MAKE
ADDITIONS TO ANY EXISTING BUILDINGS UPON ANY REAL ESTATE WHICH MAY FORM
A PART OF SAID TRUST ESTATE; AND TO DO ALL OTHER ACTS IN RELATION TO
THE SAID REAL ESTATE WHICH IN THE JUDGMENT OF SAID TRUSTEE SHALL BE
NEEDFUL OR DESIRABLE TO THE PROPER AND ADVANTAGEOUS MANAGEMENT THEREOF,
SO AS TO PROTECT THE SAME AND MAKE THE SAME PRODUCTIVE; PROVIDED,
HOWEVER, THAT IN EVERY CASE THE SAID TRUSTEE SHALL OBSERVE AND BE
GOVERNED BY ANY INSTRUCTIONS OR REQUESTS IN RELATION THERETO MADE BY AN
INSTRUMENT IN WRITING, SIGNED BY SAID FIRST PARTY. 

        "ARTICLE THIRD - DISTRIBUTION AND APPLICATION OF INCOME 

"(1)  DURING THE JOINT LIVES OF THE SAID PARTY OF THE FIRST PART AND
HIS WIFE, ABBY H. BARTLETT, THE SAID TRUSTEE SHALL PAY TO THE SAID ABBY
H. BARTLETT THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) ON THE LAST DAY
OF EACH MONTH, AND THE RESIDUE OF SAID NET INCOME SHALL BE ACCUMULATED
IN THE HANDS OF THE SAID TRUSTEE AND KEPT INVESTED IN THE SAME MANNER
AS SAID TRUSTEE IS AUTHORIZED TO INVEST THE PRINCIPAL OF SAID TRUST. 

"THE SAID PAYMENTS TO THE SAID ABBY H. BARTLETT ARE IN LIEU OF THE
MONTHLY PAYMENTS NOW BEING MADE TO HER UNDER AN EXISTING AGREEMENTS,
AND NOT IN ADDITION THERETO. 

"(2)  FROM AND AFTER THE DEATH OF THE SAID PARTY OF THE FIRST PART,
THE SAID PAYMENT OF TWO THOUSAND DOLLARS ($2,000.00) IN EACH MONTH
SHALL CONTINUE TO BE MADE TO THE SAID ABBY H. BARTLETT, UNTIL SHE SHALL
EITHER DIE OR BECOME ENTITLED TO A SHARE OF SAID FIRST PARTY'S ESTATE
OTHERWISE THAN UNDER HIS WILL, BEARING EVEN DATE HEREWITH; AND THE
RESIDUE OF SAID NET INCOME SHALL IN EACH YEAR BE PAID BY SAID TRUSTEE
TO THE FOUR (4) CHILDREN OF SAID PARTY OF THE FIRST PART, VIZ, MAIE
BARTLETT HEARD, FREDERIC CLAY BARTLETT, FLORENCE DIBELL BARTLETT, AND
ELEANOR BARTLETT PERDUE, OR THE SURVIVORS OF THEM, IN EQUAL SHARES;
PROVIDED, HOWEVER, THAT IN THE EVENT OF THE DEATH OF EITHER OF SAID
CHILDREN OF SAID PARTY OF THE FIRST PART LEAVING ISSUE SURVIVING, SUCH
SURVIVING ISSUE SHALL STAND IN THE PLACE OF SUCH DECEASED CHILD AND
RECEIVE THE SHARE OF SAID NET INCOME WHICH SUCH DECEASED CHILD WOULD
HAVE RECEIVED IF LIVING; IT BEING THE INTENTION OF SAID PARTY OF THE
FIRST PART THAT ALL PAYMENTS TO HIS WIFE, ABBY H. BARTLETT, UNDER THIS
TRUST SHALL CEASE AND BE AT AN END UPON HER BECOMING ENTITLED TO ANY
SHARE OR PORTION OF HIS ESTATE OTHERWISE THAN UNDER HIS WILL, BEARING
EVEN DATE HEREWITH, AND THAT, SUBJECT TO THE PAYMENTS HEREINBEFORE
DIRECTED TO BE MADE TO SAID ABBY H. BARTLETT, THE NET INCOME OF SAID
TRUST ESTATE SHALL BE PAID TO THE CHILDREN OF SAID PARTY OF THE FIRST
PART (AND THE ISSUE OF ANY DECEASED CHILD) IN THE SHARES ABOVE
SPECIFIED DURING THE CONTINUANCE OF THE TRUST HEREBY CREATED. 

      "ARTICLE FOURTH - DISTRIBUTION OF PRINCIPAL OF TRUST ESTATE 

"THE TRUST HEREBY CREATED SHALL TERMINATE AT THE EXPIRATION OF FIVE
(5) YEARS FROM THE DEATH OF THE PARTY OF THE FIRST PART UNLESS THE SAID
ABBY H. BARTLETT SHALL THEN BE LIVING AND BE ENTITLED TO RECEIVE
MONTHLY PAYMENTS OUT OF THE NET INCOME OF SAID TRUST ESTATE UNDER THE
PROVISIONS OF THIS INDENTURE, IN WHICH CASE THIS TRUST SHALL CONTINUE
UNTIL THE DEATH OF SAID ABBY H. BARTLETT, AND SHALL THEN TERMINATE. 

"UPON THE TERMINATION OR EXPIRATION OF THE TRUST HEREBY CREATED, THE
TRUST ESTATE THEN IN THE HANDS OF SAID TRUSTEE SHALL BE PAID OVER AND
DISTRIBUTED AS FOLLOWS: 

"(A)  ONE-FOURTH (1/4) THEREOF TO EACH OF THE FOUR (4) CHILDREN OF
SAID PARTY OF THE FIRST PART HEREINBEFORE NAMED, VIZ, MAIE BARTLETT
HEARD, FREDERIC CLAY BARTLETT, FLORENCE DIBELL BARTLETT, AND ELEANOR
BARTLETT PERDUE; 

"(B)  IF EITHER OF SAID FOUR (4) CHILDREN SHALL NOT THEN BE LIVING,
HIS OR HER ONE-FOURTH (1/4) OF SAID TRUST ESTATE SHALL BE PAID OVER AND
DISTRIBUTED TO THE THEN SURVIVING ISSUE OF SUCH DECEASED CHILD PER
STIRPES; AND IN DEFAULT OF SUCH SURVIVING ISSUE, THEN TO THE SURVIVING
ISSUE OF SAID PARTY OF THE FIRST PART PER STIRPES. 

                "ARTICLE FIFTH - CONCERNING THE TRUSTEE 

"THE TRUSTEE HEREBY ACCEPTS THE TRUST CREATED BY THIS INDENTURE, AND
AGREES TO ACT IN ACCORDANCE WITH ITS TERMS AND PROVISIONS.  THE TRUSTEE
MAY CONSULT WITH COUNSEL AND SHALL BE FULLY PROTECTED IN ANY ACTION OR
NONACTION TAKEN, PERMITTED OR SUFFERED BY IT IN GOOD FAITH AND IN
ACCORDANCE WITH THE OPINION OF COUNSEL SELECTED OR PROVIDED BY IT; AND
IN CASE OF LEGAL PROCEEDINGS INVOLVING THE TRUSTEE OR THE PRINCIPAL OF
THE TRUST ESTATE, THE TRUSTEE MAY DEFEND SUCH PROCEEDINGS OR MAY, UPON
BEING ADVISED BY SUCH COUNSEL THAT SUCH ACTION IS NECESSARY OR
ADVISABLE FOR THE PROTECTION OF THE INTERESTS OF THE TRUSTEE, OR OF THE
BENEFICIARIES, INSTITUTE ANY LEGAL PROCEEDINGS. 

"THE TRUSTEE SHALL BE REIMBURSED AND INDEMNIFIED AGAINST ANY AND ALL
LIABILITY, LOSS, OR EXPENSE BECAUSE OF THE HOLDING OF ANY SHARES OF
STOCK OR OTHER PROPERTIES CONSTITUTING A PART OF THE PRINCIPAL OF THE
TRUST ESTATE, EITHER IN ITS OWN NAME OR IN THE NAME OF A NOMINEE, AND
SHALL HAVE A LIEN UPON THE PRINCIPAL OF THE TRUST ESTATE AND THE INCOME
THEREFROM FOR THE AMOUNT OF ANY LIABILITY, LOSS, OR EXPENSE WHICH MAY
BE SO INCURRED BY IT, INCLUDING THE EXPENSE OF DEFENDING ANY ACTION OR
PROCEEDING INSTITUTED AGAINST IT OR SUCH NOMINEE BY REASON OF ANY SUCH
HOLDING. 

"OUT OF THE INCOME OF THE PRINCIPAL OF THE TRUST ESTATE THE TRUSTEE
SHALL PAY ALL TAXES, ASSESSMENTS, OR OTHER GOVERNMENTAL CHARGES WHICH
IT MAY BE REQUIRED TO PAY OR TO RETAIN BECAUSE OR IN RESPECT OF ANY
PART OF THE PRINCIPAL OF THE TRUST ESTATE OR THE INCOME THEREFROM OR
THE INTEREST OF THE TRUSTEE THEREIN, OR THE INTEREST OF ANY BENEFICIARY
OR OTHER PERSON THEREIN, UNDER ANY PRESENT OR FUTURE LAW OF THE UNITED
STATES, OR OF ANY STATE, COUNTY, MUNICIPALITY, OR OTHER TAXING
AUTHORITY THEREIN, ANY AND ALL SUCH TAXES, ASSESSMENTS, OR OTHER
GOVERNMENTAL CHARGES LAWFULLY IMPOSED BEING CHARGED AS A LIEN UPON THE
SAID INCOME, AND IN CASE OF DEFICIENCY OF SAID INCOME UPON THE
PRINCIPAL OF THE TRUST ESTATE. 

"ALL PAYMENTS OR DISTRIBUTION OF INCOME TO BENEFICIARIES IN THIS
INDENTURE PROVIDED FOR SHALL BE MADE OUT OF NET INCOME, CURRENT OR
ACCUMULATED, THEN IN THE HANDS OF THE TRUSTEE. 

"THE SAID TRUSTEE, OR ANY SUCCESSOR IN TRUST, MAY RESIGN AT ANY TIME
BY GIVING NOTICE IN WRITING OF SUCH RESIGNATION TO SAID FIRST PARTY
WHILE HE SHALL LIVE, AND AFTER HIS DEATH BY GIVING NOTICE IN WRITING OF
SUCH RESIGNATION TO EITHER ONE OF THE BENEFICIARIES HEREINBEFORE
NAMED. 

"IN CASE OF THE RESIGNATION OF ANY TRUSTEE ACTING HEREUNDER, OR OF
ITS DISABILITY OR INCAPACITY TO FURTHER ACT AS TRUSTEE, THE SAID PARTY
OF THE FIRST PART, IF LIVING, AND AFTER HIS DEATH A MAJORITY OF THE
FIVE (5) BENEFICIARIES HEREINBEFORE NAMED, VIZ, THE WIFE AND FOUR (4)
CHILDREN OF SAID PARTY OF THE FIRST PART, OR A MAJORITY OF THE
SURVIVORS OF THEM, SHALL HAVE POWER TO APPOINT A SUCCESSOR IN TRUST BY
AN INSTRUMENT IN WRITING DULY SIGNED BY HIM OR THEM AND DELIVERED TO
SAID TRUSTEE, AND UPON THE APPOINTMENT OF SUCH SUCCESSOR IN TRUST THE
SAID TRUSTEE SHALL CONVEY, ASSIGN, TRANSFER, AND DELIVER TO SUCH
SUCCESSOR IN TRUST ALL OF THE TRUST ESTATE THEN IN ITS HANDS, AND
THEREUPON AND THEREAFTER SUCH SUCCESSOR IN TRUST SHALL HAVE ALL THE
RIGHTS, POWERS, DUTIES, AND AUTHORITY WHICH ARE GRANTED TO OR IMPOSED
ON SAID ORIGINAL TRUSTEE UNDER THE PROVISIONS OF THIS INDENTURE. 

   "ARTICLE SIXTH - MISCELLANEOUS PROVISIONS 

"(1)  SAID GRANTOR HAS CREATED THE FOREGOING TRUSTS TO PROVIDE FOR
THE SUPPORT AND MAINTENANCE OF THE BENEFICIARIES ENTITLED TO SHARE IN
THE INCOME OF SAID TRUST ESTATE, AND THE SAID BENEFICIARIES SHALL HAVE
NO POWER TO ANTICIPATE, ASSIGN, OR OTHERWISE DISPOSE OF OR ENCUMBER
THEIR RESPECTIVE INTERESTS IN SAID TRUST ESTATE, AND THE SAME SHALL NOT
BE SUBJECT TO BE TAKEN FROM THEM BY PROCESS OF LAW. 

"(2)  ANY OF THE PROVISIONS OF THIS TRUST DEED MAY BE ALTERED,
CHANGED, OR MODIFIED IN ANY RESPECT AND TO ANY EXTENT AT ANY TIME
DURING THE LIFE OF SAID PARTY OF THE FIRST PART BY THE DELIVERY TO SAID
TRUSTEE OF AN INSTRUMENT IN WRITING SIGNED BY SAID PARTY OF THE FIRST
PART AND BY A MAJORITY OF THE FIVE (5) BENEFICIARIES HEREINBEFORE
NAMED, OR BY A MAJORITY OF THE SURVIVORS OF SAID FIVE BENEFICIARIES. 

"(3)  THE BENEFICIARIES, OR ANY OR EITHER OF THEM, MAY ACT THROUGH AN
ATTORNEY IN FACT IN SIGNING ANY AND ALL INSTRUMENTS DELIVERED TO THE
TRUSTEE UNDER THIS INDENTURE, WITH LIKE EFFECT AS THOUGH SIGNED IN
PERSON, AND ANY OR EITHER OF SAID BENEFICIARIES MAY ACT AS SUCH
ATTORNEY IN FACT WHEN AUTHORIZED SO TO DO. 

"IN WITNESS WHEREOF THE PARTIES HERETO HAVE EXECUTED THIS INSTRUMENT,
UNDER SEAL, THE DAY AND YEAR FIRST ABOVE WRITTEN. 

                     ADOLPHUS C. BARTLETT.  (SEAL.) 

                                 THE NORTHERN TRUST COMPANY,

                                   BY SOLOMON A. SMITH, PRESIDENT. 

"ATTEST:

  H. H. ROCKWELL,

    ASSISTANT SECRETARY." 
..END :








LEIMAN V. GUTTMAN, 336 U.S. 1 


NO. 88.  ARGUED DECEMBER 13, 1948.  - DECIDED JANUARY 17, 1949.  - 297
N.Y. 201, 78 N.E.2D 472, AFFIRMED. 


1.  UNDER SEC. 221(4) OF CH. X OF THE BANKRUPTCY ACT, 11 U.S.C. SEC.
621, THE BANKRUPTCY COURT HAS EXCLUSIVE JURISDICTION OVER CLAIMS FOR
SERVICES AS ATTORNEYS FOR A STOCKHOLDERS' PROTECTIVE COMMITTEE IN A
CORPORATE REORGANIZATION PROCEEDING - INCLUDING CLAIMS UNDER A PRIVATE
ESCROW AGREEMENT FOR SERVICES WHICH BENEFITED A SINGLE CLASS OF
SECURITY HOLDERS AND ARE COMPENSABLE BY THEM AND NOT FROM THE ESTATE. 
PP. 2-10. 

(A)  THE CONTROL OF THE BANKRUPTCY COURT IS NOT LIMITED TO FEES AND
ALLOWANCES PAYABLE OUT OF THE ESTATE.  P. 5. 

(B)  SECTION 221(4) APPLIES TO "ALL PAYMENTS" FOR SERVICES "IN
CONNECTION WITH" THE PROCEEDING OR "IN CONNECTION WITH" THE PLAN AND
"INCIDENT TO" THE REORGANIZATION, WHOEVER PAYS THEM.  PP. 5-8. 

(C)  PAYMENTS UNDER A PRIVATE ARRANGEMENT EXPRESSED IN AN ESCROW
AGREEMENT WITH A COMMITTEE REPRESENTING A SMALLER OR MORE INTIMATE
GROUP THAN A CONVENTIONAL COMMITTEE ARE NOT EXCEPTED.  P. 8. 

2. SINCE THE DETERMINATION OF ALLOWANCES HAS BEEN MADE AN INTEGRAL
PART OF THE PROCESS OF CONFIRMATION OF A CORPORATE REORGANIZATION WHICH
IS EXCLUSIVELY ENTRUSTED TO THE BANKRUPTCY COURT UNDER CHAPTER X, IT
MAY NOT BE DELEGATED TO A STATE COURT.  P. 9. 

3.  IN A REORGANIZATION PROCEEDING UNDER CHAPTER X, THE BANKRUPTCY
COURT ERRONEOUSLY RULED THAT IT HAD NO JURISDICTION OVER LEGAL FEES
ARISING OUT OF PRIVATE ARRANGEMENTS WITH A STOCKHOLDERS' PROTECTIVE
COMMITTEE AND NOT PAYABLE OUT OF THE ESTATE.  NO APPEAL WAS TAKEN AND
THE TIME ALLOWED FOR APPEAL HAD EXPIRED.  HELD:  THE CLAIMANTS MAY
STILL APPLY TO THE BANKRUPTCY COURT FOR AN ALLOWANCE, WHETHER OR NOT
THE FINAL DECREE UNDER SEC. 228 HAS BEEN ENTERED.  PP. 9-10. 

LEIMAN ET AL. V. GUTTMAN ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

IN A CORPORATE REORGANIZATION PROCEEDING UNDER CHAPTER X OF THE
BANKRUPTCY ACT, THE BANKRUPTCY COURT ALLOWED PETITIONERS CERTAIN FEES
FOR LEGAL SERVICES RENDERED TO AND PAYABLE OUT OF THE ESTATE BUT HELD
THAT IT HAD NO JURISDICTION OVER CERTAIN ADDITIONAL FEES TO BE PAID
UNDER THE TERMS OF A PRIVATE ESCROW AGREEMENT BETWEEN THEM AND A
COMMITTEE REPRESENTING A GROUP OF STOCKHOLDERS.  69 F.SUPP.  656. 
WITHOUT APPEALING FROM THIS RULING, PETITIONERS SUED IN A STATE COURT
FOR SPECIFIC PERFORMANCE OF THE ESCROW AGREEMENT.  THE TRIAL COURT
DENIED A MOTION TO DISMISS FOR LACK OF JURISDICTION.  71 N.Y.S.2D 200. 
THE APPELLATE DIVISION AFFIRMED.  272 APP. DIV. 896, 72 N.Y.S.2D 406. 
THE COURT OF APPEALS REVERSED.  297 N.Y. 201, 78 N.E.2D 472.  THIS
COURT GRANTED CERTIORARI.  335 U.S. 808.  AFFIRMED, P. 10. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SEC. 621, PROVIDES: 

"THE JUDGE SHALL CONFIRM A PLAN IF SATISFIED THAT  ... 

"(4)  ALL PAYMENTS MADE OR PROMISED BY THE DEBTOR OR BY A CORPORATION
ISSUING SECURITIES OR ACQUIRING PROPERTY UNDER THE PLAN OR BY ANY OTHER
PERSON, FOR SERVICES AND FOR COSTS AND EXPENSES IN, OR IN CONNECTION
WITH, THE PROCEEDING OR IN CONNECTION WITH THE PLAN AND INCIDENT TO THE
REORGANIZATION, HAVE BEEN FULLY DISCLOSED TO THE JUDGE AND ARE
REASONABLE OR, IF TO BE FIXED AFTER CONFIRMATION OF THE PLAN, WILL BE
SUBJECT TO THE APPROVAL OF THE JUDGE.  ... " 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THAT PROVISION GIVES
THE BANKRUPTCY COURT EXCLUSIVE JURISDICTION OVER PETITIONERS' CLAIM FOR
SERVICES AS ATTORNEYS IN THE REORGANIZATION OF PITTSBURGH TERMINAL COAL
CORP., THE DEBTOR. 

PETITIONERS WERE ATTORNEYS FOR A PROTECTIVE COMMITTEE REPRESENTING
PUBLIC HOLDERS OF THE PREFERRED STOCK OF THE DEBTOR.  THE COMMITTEE HAD
ON DEPOSIT 584 SHARES OF THE PREFERRED STOCK FROM FOUR STOCKHOLDERS. 
THE COMMITTEE AGREED TO HOLD THOSE SHARES IN ESCROW FOR THE PURPOSE OF
AFFORDING PETITIONERS "ADDITIONAL COMPENSATION" FOR THEIR SERVICES IN
THE REORGANIZATION PROCEEDINGS OF THE DEBTOR.  FN1 

PETITIONERS RENDERED VALUABLE SERVICE IN CONNECTION WITH THE
REORGANIZATION.  WHEN THE PLAN WAS CONFIRMED, THEY APPLIED TO THE
BANKRUPTCY COURT FOR AN ALLOWANCE.  THAT COURT ALLOWED THEM $37,500 OUT
OF THE ESTATE.  IT CONCLUDED THAT, WHILE THAT AMOUNT WAS ALL THE ESTATE
SHOULD BEAR, THEIR SERVICES WERE WORTH MORE THAN THE ALLOWANCE.  BUT IT
HELD THAT IT HAD NO JURISDICTION TO PASS ON THE AMOUNT OF THE ALLOWANCE
WHICH SHOULD BE PAID UNDER THE ESCROW AGREEMENT.  IN RE PITTSBURGH
TERMINAL COAL CORP., 69 F.SUPP.  656. 

SINCE IN THEIR VIEW THAT COURT DID NOT HAVE JURISDICTION OF THE
CLAIM, PETITIONERS DID NOT APPEAL FROM THAT ORDER BUT BROUGHT INSTEAD
THE PRESENT SUIT IN THE NEW YORK COURTS FOR SPECIFIC PERFORMANCE OF THE
ESCROW AGREEMENT AND FOR DELIVERY OF THE DEPOSITED STOCK IN ACCORDANCE
WITH THE TERMS OF THAT AGREEMENT.  THE COURT OF APPEALS ANSWERED IN THE
NEGATIVE THE FOLLOWING CERTIFIED QUESTION: 

"HAS THE SUPREME COURT OF THE STATE OF NEW YORK JURISDICTION OVER THE
SUBJECT MATTER OF THIS ACTION TO RECOVER FOR LEGAL SERVICES RENDERED TO
THE STOCKHOLDERS COMMITTEE WHICH ARE NOT COMPENSABLE OUT OF THE ASSETS
OF THE DEBTOR'S ESTATE, IN A CHAPTER X REORGANIZATION PROCEEDING UNDER
THE UNITED STATES BANKRUPTCY ACT?"  297 N.Y. AT 204. 

THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE GRANTED
BECAUSE OF THE IMPORTANCE OF THE QUESTION IN ADMINISTRATION OF THE
ACT. 

WE REVIEWED IN WOODS V. CITY BANK CO., 312 U.S. 262, AND BROWN V.
GERDES, 321 U.S. 178, THE DESIGN OF CH. X INSOFAR AS FEES AND
ALLOWANCES ARE CONCERNED.  THERE WE WERE DEALING WITH FEES AND
ALLOWANCES PAYABLE OUT OF THE ESTATE.  HERE WE ARE DEALING WITH FEES
WHICH ARE INCIDENT TO THE REORGANIZATION BUT NOT PAYABLE OUT OF THE
ESTATE.  UNDER THE LESS COMPREHENSIVE LANGUAGE OF SEC. 77B THE LEADING
AUTHORITY WAS THAT THE BANKRUPTCY COURT HAD JURISDICTION OVER THE
LATTER CLAIMS AS WELL.  IN RE MCCRORY STORES CORP., 91 F.2D 947.  WE
WOULD BE UNMINDFUL OF HISTORY AND HEEDLESS OF STATUTORY LANGUAGE IF WE
HELD THAT THE POWER OF THE BANKRUPTCY COURT IN THIS RESPECT HAD BEEN
CONTRACTED  FN2  AS A RESULT OF CH. X. 

THE CONTROL OF THE JUDGE IS NOT LIMITED TO FEES AND ALLOWANCES
PAYABLE OUT OF THE ESTATE.  SECTION 221(4) PLACES UNDER HIS CONTROL
"ALL PAYMENTS MADE OR PROMISED" (1) BY "THE DEBTOR" OR (2) "BY A
CORPORATION ISSUING SECURITIES OR ACQUIRING PROPERTY UNDER THE PLAN" OR
(3) "BY ANY OTHER PERSON" FOR SERVICES RENDERED "IN CONNECTION WITH"
THE PROCEEDING OR "IN CONNECTION WITH" THE PLAN AND "INCIDENT TO" THE
REORGANIZATION.  THE SERVICES OF PETITIONERS CONCEDEDLY MET THOSE
REQUIREMENTS; AND THE COMMITTEE AGAINST WHOSE STOCK A LIEN IS SOUGHT TO
BE ASSERTED WOULD PLAINLY BE INCLUDED WITHIN THE WORDS "ANY OTHER
PERSON."  MOREOVER, THESE PETITIONERS ARE INCLUDED IN THE CLASSES OF
CLAIMANTS TO WHOM THE JUDGE IS EMPOWERED TO ALLOW REASONABLE
COMPENSATION.  FN3  TO LIFT PETITIONERS' CLAIM FROM SEC. 221(4) WOULD
THEREFORE BE TO REWRITE IT OR TO HOLD THAT WHEN EXTENDED SO FAR IT WAS
UNCONSTITUTIONAL.  THE LATTER HAS NOT EVEN BEEN INTIMATED.  THE FORMER
IS NOT PERMISSIBLE. 

THE AIM OF THE EXPANDED CONTROLS OVER REORGANIZATION FEES AND
EXPENSES IS CLEAR.  THE PRACTICE HAD BEEN TO FIX THEM BY PRIVATE
ARRANGEMENT OUTSIDE OF COURT.  FN4  THE DEPOSIT AGREEMENT UNDER WHICH
COMMITTEES COMMONLY FUNCTIONED WAS VIEWED AS A PRIVATE CONTRACT,  FN5
WHICH GRANTED THE COMMITTEE A LIEN ON THE DEPOSITED SECURITIES FOR ITS
FEES AND EXPENSES.  BY TERMS OF THE AGREEMENT THE COMMITTEE WAS
NORMALLY THE SOLE JUDGE OF THEIR AMOUNT.  FN6  THIS GAVE RISE TO
SERIOUS ABUSES.  THERE WAS THE SPECTACLE OF FIDUCIARIES FIXING THE
WORTH OF THEIR OWN SERVICES AND EXACTING FEES WHICH OFTEN HAD NO
RELATION TO THE VALUE OF SERVICES RENDERED.  FN7  THE RESULT WAS THAT
THE EFFECTIVE AMOUNT RECEIVED BY CREDITORS AND STOCKHOLDERS UNDER THE
PLAN WAS DETERMINED NOT BY THE COURT BUT BY REORGANIZATION MANAGERS AND
COMMITTEES. 

HENCE CONGRESS INSTITUTED CONTROLS, CONTROLS WHICH BECAME MORE
PERVASIVE AS SEC. 77B WAS EVOLVED INTO CH. X. SECTION 211 REQUIRES THAT
A COMMITTEE FILE WITH THE COURT A STATEMENT DISCLOSING SPECIFIED
INFORMATION, INCLUDING THE AGREEMENT UNDER WHICH IT OPERATES.  FN8  THE
SCRUTINY CLAUSE OF SEC. 212 GIVES THE COURT POWER TO SET ASIDE ANY OF
THE PROVISIONS OF SUCH AN AGREEMENT WHICH IT FINDS TO BE "UNFAIR OR NOT
CONSISTENT WITH PUBLIC POLICY."  AND SEC. 221(4) IS WRITTEN IN
PERVASIVE TERMS - IT APPLIES TO "ALL PAYMENTS" FOR SERVICES "IN
CONNECTION WITH" THE PROCEEDING OR "IN CONNECTION WITH" THE PLAN AND
"INCIDENT TO" THE REORGANIZATION, WHOEVER PAYS THEM.  FN9  A STATUTE
ESTABLISHING SUCH BROAD SUPERVISION OVER COMMITTEES CANNOT BE PRESUMED
TO BE NIGGARDLY IN ITS GRANT OF AUTHORITY WHEN IT DEALS WITH THE MATTER
WHICH OF ALL THE OTHERS HAS THE MOST DIRECT IMPACT ON THOSE WHOM IT
AIMS TO PROTECT. 

WE CAN FIND IN THIS LANGUAGE NO EXEMPTION FOR THE KIND OF COMMITTEE
THAT PETITIONERS REPRESENTED.  THE FACT THAT THE COMMITTEE MAY HAVE
REPRESENTED A SMALLER OR MORE INTIMATE GROUP THAN A CONVENTIONAL
COMMITTEE IS IRRELEVANT.  THE STATUTE WAS DESIGNED TO POLICE THE RETURN
WHICH ALL SECURITY HOLDERS OBTAIN FROM REORGANIZATION PLANS.  THE NET
RETURN CANNOT BE KEPT UNDER SUPERVISION IF PRIVATE ARRANGEMENTS
EXPRESSED IN ESCROW AGREEMENTS ARE TO CONTROL.  FOR THE IMPACT OF
EXCESSIVE FEE CLAIMS IS THE SAME WHETHER THEY ARE CHARGED DIRECTLY
AGAINST THE ESTATE OR AGAINST THE CLAIM WHICH REPRESENTS A
PROPORTIONATE INTEREST IN THE ESTATE. 

NOR IS IT AN ANSWER TO SAY THAT STATE COURTS CAN SUPERVISE ALLOWANCES
OF THIS NATURE IF THE BANKRUPTCY COURT IS DISALLOWED AUTHORITY TO DO
SO.  THE HAPPENSTANCE OF LITIGATION IN THE STATE COURTS IS NOT THE
EQUIVALENT OF THE ADMINISTRATIVE RULE ADOPTED BY CONGRESS WHEN IT ASKED
THAT COMMITTEE CLAIMANTS SUBMIT THEIR REQUESTS TO THE BANKRUPTCY
COURT.  THE INCIDENCE OF FEES ON REORGANIZATION PLANS IS SO GREAT THAT
CONTROL OVER THEM IS DEEMED INDISPENSABLE TO THE COURT'S DETERMINATION
WHETHER THE PLAN SHOULD BE CONFIRMED.  SECTION 221(4) PROVIDES, INDEED,
ONE OF THE STANDARDS BY WHICH THE COURT MAKES THAT DETERMINATION. 
SINCE THE DETERMINATION OF ALLOWANCES HAS BEEN MADE AN INTEGRAL PART OF
THE PROCESS OF CONFIRMATION WHICH IS EXCLUSIVELY ENTRUSTED TO THE
BANKRUPTCY COURT, WE CANNOT INFER THAT IT MAY BE DELEGATED TO A STATE
COURT.  MOREOVER, IT IS THE BANKRUPTCY COURT THAT IS IN THE BEST
POSITION TO KNOW WHAT WORK WAS DONE BY THE FEE CLAIMANT, HOW IMPORTANT
AND INVOLVED IT WAS, HOW MUCH IT BENEFITED THE WHOLE GROUP OF SECURITY
HOLDERS AND HOW MUCH IT BENEFITED THE ONE CLASS ALONE, HOW MUCH OF IT
WAS NECESSARY, HOW MUCH OF IT WAS EFFECTIVE.  THAT COURT HAS ALREADY
DETERMINED WHAT THE ESTATE SHOULD PAY.  THE QUESTION THAT REMAINS IS
HOW MUCH OF A CHARGE SHOULD BE MADE AGAINST THE ESCROWED STOCK AND
WHETHER THE STATE COURT OR THE BANKRUPTCY COURT SHOULD DETERMINE WHAT
THAT CHARGE SHOULD BE.  CERTAINLY WHERE, AS IN THIS CASE, THE SERVICES
BENEFITED IN PART THE ESTATE AND IN PART ONE CLASS OF SECURITY HOLDERS,
IT IS THE BANKRUPTCY COURT THAT IS IN THE POSITION TO WEIGH THE
INTERRELATED ISSUES OF FACT AND MAKE A FAIR ALLOCATION BETWEEN THE
TWO. 

THESE PRACTICAL CONSIDERATIONS SUPPORT THE LITERAL READING OF SEC.
221(4) THAT IT IS THE BANKRUPTCY COURT THAT HAS JURISDICTION TO PASS ON
THESE FEES.  ITS JURISDICTION IS THEREFORE EXCLUSIVE.  SEE BROWN V.
GERDES, SUPRA. 

PETITIONERS DID NOT APPEAL FROM THE ORDER OF THE DISTRICT COURT
HOLDING THAT IT HAD NO JURISDICTION OVER THESE CLAIMS.  BUT NO REASON
IS APPARENT WHY THE PETITIONERS MAY NOT APPLY TO THE DISTRICT COURT FOR
AN ALLOWANCE EVEN AT THIS DATE.  WE WERE ADVISED DURING THE COURSE OF
ARGUMENT THAT THE FINAL DECREE UNDER SEC. 228 HAS NOT BEEN ENTERED. 
FN10  YET THOUGH IT HAS BEEN, THERE IS NO REASON IN VIEW OF THE SPECIAL
CIRCUMSTANCES OF THIS CASE WHY APPLICATION CANNOT BE MADE AT THE FOOT
OF THE DECREE.  AFFIRMED. 

FN1  THE RELEVANT PART OF THE ESCROW AGREEMENT PROVIDED: 

"THESE SHARES ARE HELD IN ESCROW BY THIS COMMITTEE PENDING THE
TERMINATION OF ALL PROCEEDINGS IN THE MATTER OF THE PITTSBURGH TERMINAL
COAL CORPORATION. 

"THIS COMMITTEE HAS SECURED THESE SHARES FROM THE STOCKHOLDERS LISTED
ABOVE FOR THE PURPOSE OF AFFORDING TO YOU ADDITIONAL COMPENSATION FOR
YOUR SERVICES IN THE ABOVE MATTER.  THEY HAVE BEEN OBTAINED AND ARE
HELD IN ESCROW ON THE CONDITION THAT THEY BE DELIVERED TO YOU ONLY AT
SUCH TIME AS THE REORGANIZATION PROCEEDINGS IN THE MATTER OF PITTSBURGH
TERMINAL COAL CORPORATION ARE FINALLY TERMINATED AND A FINAL SETTLEMENT
OF ALL SUITS AND CLAIMS MADE BY THIS COMMITTEE IN BEHALF OF THE
PREFERRED STOCKHOLDERS HAVE BEEN SETTLED.  IT IS FURTHER CONDITIONED
UPON FAITHFUL AND SATISFACTORY PERFORMANCE OF YOUR DUTIES AS COUNSEL TO
THIS COMMITTEE UNTIL THE TERMINATION OF ALL PROCEEDINGS." 

FN2  THE INDICATED PURPOSE WAS TO STRENGTHEN, NOT TO IMPAIR, THE
EXISTING CONTROLS WHICH SEC. 77B ESTABLISHED IN REGARD TO ALLOWANCES. 
SEE SEN. REP. NO. 1916, 75TH CONG., 3D SESS. 22(1938); H.R. REP. NO.
1409, 75TH CONG., 1ST SESS. 45(1937). 

FN3  SECTION 242 PROVIDES: 

"THE JUDGE MAY ALLOW REASONABLE COMPENSATION FOR SERVICES RENDERED
AND REIMBURSEMENT FOR PROPER COSTS AND EXPENSES INCURRED IN CONNECTION
WITH THE ADMINISTRATION OF AN ESTATE IN A PROCEEDING UNDER THIS CHAPTER
OR IN CONNECTION WITH A PLAN APPROVED BY THE JUDGE, WHETHER OR NOT
ACCEPTED BY CREDITORS AND STOCKHOLDERS OR FINALLY CONFIRMED BY THE
JUDGE - 

"(1)  BY INDENTURE TRUSTEES, DEPOSITARIES, REORGANIZATION MANAGERS,
AND COMMITTEES OR REPRESENTATIVES OF CREDITORS OR STOCKHOLDERS; 

"(2)  BY ANY OTHER PARTIES IN INTEREST EXCEPT THE SECURITIES AND
EXCHANGE COMMISSION; AND 

"(3)  BY THE ATTORNEYS OR AGENTS FOR ANY OF THE FOREGOING EXCEPT THE
SECURITIES AND EXCHANGE COMMISSION." 

FN4  SEE PART VIII, PROTECTIVE COMMITTEE REPORT, SECURITIES AND
EXCHANGE CHANGE COMMISSION (1940), PP. 232 ET SEQ. 

FN5  SEE HABIRSHAW ELEC.  CABLE CO. V. HABIRSHAW ELECTRIC CABLE CO.,
INC., 296 F. 875, 879. 

FN6  SEE PART I, PROTECTIVE COMMITTEE REPORT, SECURITIES AND EXCHANGE
COMMISSION (1937), PP. 642, 644, 645, 646-647: 

"AN EXAMINATION OF THE 846 DEPOSIT AGREEMENTS RECEIVED WITH REPLIES
TO THE COMMISSION'S QUESTIONNAIRE REVEALS THAT 841 AGREEMENTS, OR 99.4
PERCENT, PROVIDED THAT THE COMMITTEE SHOULD BE ENTITLED TO FEES OR
EXPENSES OR BOTH.  OF THOSE 841 DEPOSIT AGREEMENTS, 672 AGREEMENTS, OR
79.9 PERCENT, GAVE THE COMMITTEE AN EXPRESS LIEN UPON THE DEPOSITED
SECURITIES, FOR EXPENSES OR COMPENSATION, OR BOTH.  742, OR 88.2
PERCENT, CLOTHED THE COMMITTEE WITH POWER TO PLEDGE DEPOSITED
SECURITIES TO SECURE LOANS TO FINANCE ITS ACTIVITIES.  THESE POWERS
COMMONLY MAY BE EXERCISED BY THE COMMITTEE IN ITS SOLE DISCRETION FREE
FROM SUPERVISION BY ANY INDEPENDENT AGENCY OR BY THE DEPOSITORS." 
.         .         .         .         . 

"THE DEPOSIT AGREEMENTS PROVIDE LITTLE CHECK UPON THE AMOUNTS THE
COMMITTEES MAY CHARGE FOR FEES AND EXPENSES.  AS WE HAVE STATED ABOVE,
841 OF THE 846 DEPOSIT AGREEMENTS THAT WE EXAMINED PROVIDED THAT THE
COMMITTEE SHOULD BE ENTITLED TO PAYMENT OF ITS FEES OR EXPENSES OR
BOTH.  IN 469 THE AMOUNT OF COMPENSATION AND EXPENSES WHICH THE
COMMITTEE MIGHT CHARGE AGAINST THE DEPOSITED SECURITIES WAS UNLIMITED. 
THAT IS TO SAY, IN 55.4 PERCENT OF THE CASES NEITHER THE AGGREGATE
AMOUNT NOR THE AMOUNT PER UNIT OF SECURITIES WHICH COMMITTEES COULD
CLAIM FOR THEIR EXPENSES AND SERVICES WAS LIMITED. 

     .         .         .         .         . 

"IN THE 705 CASES NOT ASSOCIATED WITH SECTION 77 OR SECTION 77B
PROCEEDINGS MACHINERY WAS PROVIDED FOR HAVING SOME INDEPENDENT PERSON
OR AGENCY REVIEW THE AMOUNT OF THE FEES AND EXPENSES OF THESE
COMMITTEES IN ONLY 2.13 PERCENT OF THE CASES.  IN THE BALANCE OF THE
CASES, NUMBERING 690, THE COMMITTEE HAD RESERVED TO ITSELF THE RIGHT TO
DETERMINE, WITHIN THE LIMITS PRESCRIBED BY THE AGREEMENT, THE AMOUNT
WHICH IT COULD CHARGE FOR FEES AND EXPENSES.  AND IN 403 OF THESE 690
CASES, THE AGREEMENTS PRESCRIBED NO LIMITATIONS.  THESE FIDUCIARIES,
THEREFORE, HAD IN THE VAST MAJORITY OF THE CASES PROVIDED MACHINERY
WHEREBY THEY BECAME THE SOLE ARBITERS OF THE WORTH OF THEIR OWN
SERVICES AND OF THE PROPRIETY OF THEIR EXPENSES.  AS WE HAVE POINTED
OUT, IT WAS USUALLY PROVIDED THAT THE COMPENSATION TO BE FIXED BY THE
COMMITTEE MUST BE 'REASONABLE.'  BUT THIS RESTRICTION IN AND OF ITSELF
WOULD MEAN LITTLE, SINCE THE COMMITTEE AND THE COMMITTEE ALONE WAS TO
DETERMINE WHAT WAS 'REASONABLE.'  AND IT IS NO ANSWER TO SAY THAT A
COURT OF EQUITY WOULD REVIEW THESE FEES ON COMPLAINT OF A DEPOSITOR AND
DISALLOW SUMS BEYOND A 'REASONABLE' AMOUNT OR DISALLOW IMPROPER ITEMS
OF EXPENSE.  SUCH RELIEF WOULD NECESSITATE LITIGATION BY THE
DEPOSITORS.  CONSIDERING THE TIME, EXPENSE, AND DIFFICULTY OF LEGAL
QUESTIONS INVOLVED, SUCH A REMEDY WOULD FOR ALL PRACTICAL PURPOSES
FURNISH NO CHECK WHATSOEVER ON THE EXTRAVAGANCE OF COMMITTEE MEMBERS." 

FN7  SEE PART II, PROTECTIVE COMMITTEE REPORT, SECURITIES AND
EXCHANGE COMMISSION (1937), PP. 351 ET SEQ. 

FN8  IT IS TO BE NOTED THAT WHILE THIS PROVISION ONLY APPLIES TO
COMMITTEES REPRESENTING MORE THAN TWELVE CREDITORS OR STOCKHOLDERS, THE
SCRUTINY CLAUSE CONTAINED IN SEC. 212 AND THE POWER TO CONTROL
ALLOWANCES CONTAINED IN SEC. 221(4) IS NOT SO RESTRICTED. 

FN9  SEN. REP. NO. 1916, SUPRA, NOTE 2, AT 36, EXPLAINS SEC. 221(4)
AS FOLLOWS: 

"SUBSECTION (4) OF SECTION 221, DERIVED FROM SECTION 77B (F)(5),
REQUIRES FULL DISCLOSURE AND THE APPROVAL BY THE JUDGE OF ALL PAYMENTS
FOR SERVICES, AND FOR COSTS AND EXPENSES, IN CONNECTION WITH THE PLAN
OR THE PROCEEDINGS, WHETHER SUCH PAYMENTS ARE MADE OR PROMISED BY THE
DEBTOR, OR BY ANY CORPORATION SUCCEEDING TO IT, OR BY ANY OTHER
PERSON." 

SATISFIED THAT  ...  (5) ALL AMOUNTS TO BE PAID BY THE DEBTOR OR BY ANY
CORPORATION OR CORPORATIONS ACQUIRING THE DEBTOR'S ASSETS, AND ALL
AMOUNTS TO BE PAID TO COMMITTEES OR REORGANIZATION MANAGERS, WHETHER OR
NOT BY THE DEBTOR OR ANY SUCH CORPORATION FOR SERVICES OR EXPENSES
INCIDENT TO THE REORGANIZATION, HAVE BEEN FULLY DISCLOSED AND ARE
REASONABLE, OR ARE TO BE SUBJECT TO THE APPROVAL OF THE JUDGE.  ...  "
48 STAT. 919. 

FN10  SECTION 228 PROVIDES: 

"UPON THE CONSUMMATION OF THE PLAN, THE JUDGE SHALL ENTER A FINAL
DECREE - 

"(1)  DISCHARGING THE DEBTOR FROM ALL ITS DEBTS AND LIABILITIES AND
TERMINATING ALL RIGHTS AND INTERESTS OF STOCKHOLDERS OF THE DEBTOR,
EXCEPT AS PROVIDED IN THE PLAN OR IN THE ORDER CONFIRMING THE PLAN OR
IN THE ORDER DIRECTING OR AUTHORIZING THE TRANSFER OR RETENTION OF
PROPERTY; 

"(2)  DISCHARGING THE TRUSTEE, IF ANY; 

"(3)  MAKING SUCH PROVISIONS BY WAY OF INJUNCTION OR OTHERWISE AS MAY
BE EQUITABLE; AND 

"(4)  CLOSING THE ESTATE." 

MR. JUSTICE JACKSON, DISSENTING IN PART. 

I AGREE WITH THE OPINION OF THE COURT INSOFAR AS IT HOLDS THAT A
COMMITTEE OF STOCKHOLDERS CONSTITUTED UNDER THE BANKRUPTCY ACT MAY NOT
DISBURSE OR COMMIT FIDUCIARY FUNDS IN ITS OWN HANDS UNDER GENERAL
DEPOSIT AGREEMENT, NOR FUNDS OF THE ESTATE, TO PAY ATTORNEYS' FEES
EXCEPT AS ALLOWED BY THE FEDERAL COURT, AND A CONTRACT TO PAY MORE FROM
SUCH FUNDS WOULD NOT BE ENFORCEABLE.  BUT THE OPINION GOES BEYOND
THAT.  AS TO AGREEMENTS BETWEEN STOCKHOLDERS AND COUNSEL WHICH DO NOT
AFFECT FUNDS OF THE ESTATE OR OF THE COMMITTEE, I SEE NO REASON TO SAY
THAT SUCH CONTRACTS ARE SUBJECT TO CONTROL BY THE BANKRUPTCY COURT, OR
INDEED, THAT IN SUCH A CASE AS THIS, THAT THERE IS ANY PRACTICAL WAY IN
WHICH THE BANKRUPTCY COURT CAN EFFECTIVELY ASSERT SUCH A JURISDICTION
AS THE OPINION BESTOWS UPON IT. 

IT SEEMS TO ME THAT THE COURT IS CONVERTING A PROVISION OF THE
BANKRUPTCY ACT DESIGNED TO PREVENT LAWYERS FROM OVERREACHING
STOCKHOLDERS INTO AN AUTHORITY FOR STOCKHOLDERS TO SWINDLE LAWYERS.  IT
MAY APPEAR LIKE AN INSTANCE OF MAN BITING DOG, BUT THE CASE BEFORE US
IS ACTUALLY ONE OF CLIENT SNARING LAWYER.  THE COURT'S OPINION IS A
RATHER ABSTRACT DECLARATION AND MY DIFFICULTY WITH IT CAN BE UNDERSTOOD
ONLY FROM FULLER RECITAL OF THE FACTS. 

THIS CASE HAS NOT BEEN TRIED NOR EVEN BEEN AT ISSUE.  IT WAS DECIDED
ON MOTION TO DISMISS IN THE TRIAL AND INTERMEDIATE APPELLATE COURTS OF
NEW YORK STATE.  ALL THAT WAS BEFORE THE NEW YORK COURT OF APPEALS WAS
A CERTIFIED ABSTRACT QUESTION TO WHICH I THINK IT RETURNED A CORRECT
ABSTRACT ANSWER.  BUT THAT QUESTION WAS NOT THE ONLY OR THE BASIC
QUESTION PRESENTED BY THE CASE. 

FROM A RECORD THAT IS UNSATISFACTORY FOR DECISION OF ISSUES SO
IMPORTANT TO THE BAR AND TO THOSE INTERESTED IN REORGANIZATIONS, THE
FOLLOWING FACTS APPEAR. 

PITTSBURGH TERMINAL COAL CORPORATION, AS DEBTOR, WAS IN
REORGANIZATION UNDER CHAPTER X OF THE BANKRUPTCY ACT.  THREE OF THESE
DEFENDANTS, IN A MANNER AND WITH POWERS AND DUTIES NOT DISCLOSED,
BECAME A "COMMITTEE FOR PREFERRED STOCKHOLDERS."  WHETHER ANY STOCK WAS
DEPOSITED WITH THEM AS SUCH DOES NOT APPEAR AND THE COMMITTEE SEEMS TO
HAVE REPRESENTED ONLY THE INTERESTS OF A FAMILY GROUP, HEAVILY
INTERESTED IN PREFERRED STOCK, WHICH COMPRISED AND DOMINATED THE
COMMITTEE.  THE COMMITTEE ORIGINALLY RETAINED THESE LAWYERS. 

THE SITUATION APPEARS TO HAVE BEEN ONE OF THOSE IN WHICH EXISTENCE OF
ANY ESTATE, AND HENCE OF ANY VALUE TO THE PREFERRED STOCK, DEPENDED
UPON THE OUTCOME OF A LAWSUIT FOR "UNCOVERING MISMANAGEMENT AND
MALFEASANCE."  REMUNERATION FOR THE LAWYERS WHO WERE TO PRESS THE SUIT
WAS CONTINGENT UPON THEIR CREATING AN ESTATE; BUT IN SUCH CASES COURTS
ARE PROPERLY RELUCTANT AFTER THE EVENT TO INCLUDE IN ALLOWANCES,
COMPENSATION FOR THE RISK OF DOING MUCH WORK FOR NOTHING. 

THESE LAWYERS FACED SO SLIM A CHANCE OF FAIR COMPENSATION THAT THEY
PROPOSED TO WITHDRAW.  TO INDUCE THEM TO CONTINUE, FOUR INDIVIDUAL
STOCKHOLDERS PUT 20% OF THEIR PREFERRED STOCK IN ESCROW WITH THE
DEFENDANT COMMITTEE UNDER A SEPARATE WRITTEN CONTRACT.  THIS STOCK DOES
NOT APPEAR TO HAVE BEEN PREVIOUSLY DEPOSITED WITH THE COMMITTEE, NOR
WAS IT DEPOSITED AT THIS TIME UNDER THE GENERAL STOCKHOLDERS' AGREEMENT
BUT ONLY UNDER THE SPECIAL ESCROW AGREEMENT.  THE AGREEMENT WITH THE
LAWYERS RECITED, "THIS COMMITTEE HAS SECURED THESE SHARES FROM THE
STOCKHOLDERS LISTED ABOVE FOR THE PURPOSE OF AFFORDING TO YOU
ADDITIONAL COMPENSATION FOR YOUR SERVICES IN THE ABOVE MATTER.  THEY
HAVE BEEN OBTAINED AND ARE HELD IN ESCROW ON THE CONDITION THAT THEY BE
DELIVERED TO YOU ONLY AT SUCH TIME AS THE REORGANIZATION PROCEEDINGS"
ARE TERMINATED AND FINAL SETTLEMENT OF CLAIMS MADE, AND DELIVERY WAS
CONDITIONED ON FAITHFUL AND SATISFACTORY SERVICE BY THE LAWYERS. 

AFTER AN ESTATE WAS CREATED BY THE EFFORTS OF THE LAWYERS, THE
STOCKHOLDERS REPUDIATED THE AGREEMENT AND CONTENDED THAT COUNSEL'S
SERVICES WERE ONLY COMPENSABLE FROM THE ESTATE WITHOUT RESORT TO THE
ESCROW CONTRACT.  THE ATTORNEYS THEREUPON SOUGHT COMPENSATION BY AN
ALLOWANCE FROM THE ESTATE.  JUDGE GIBSON'S FINAL OPINION ON THE
APPLICATION RECITES FACTS AMONG WHICH ARE THE FOLLOWING: 

THE CHAIRMAN OF THE COMMITTEE FOR PREFERRED STOCKHOLDERS, "WHILE NOT
DENYING THAT CLAIMANTS HAD RENDERED SERVICES WHICH COULD NOT BE CHARGED
AGAINST THE DEBTOR, AND WHICH WERE RENDERED AT A TIME WHEN ANY SUCH
COMPENSATION FROM THE DEBTOR'S ESTATE SEEMED IMPROBABLE, ASSERTED THAT
THE DEPOSIT OF STOCK IN ESCROW WAS TO BE EFFECTIVE ONLY IN CASE NO
CONSIDERABLE AWARD SHOULD BE MADE FROM THE DEBTOR'S ESTATE."  HE
INDICATES THAT THE MISMANAGEMENT LITIGATION WAS "THE SOURCE OF THE
ULTIMATE FORTUNATE RECOVERY OF THE FUND FOR DISTRIBUTION."  BUT HE
FINDS "THAT THE CLAIMANTS RENDERED SERVICES TO THE PREFERRED
STOCKHOLDERS NAMED IN THE ESCROW AGREEMENT WHICH WERE NOT COMPENSABLE
FROM THE FUND DISTRIBUTED BY ORDER OF THE COURT.  AMONG SUCH SERVICES
WERE THOSE RENDERED IN CONNECTION WITH THE SINKING FUND CLAIMS,
GUTTMAN'S CRITICISM OF THE TRUSTEE'S SALES OF MACHINERY AND HIS
MANAGEMENT OF THE REAL ESTATE, HIS RENT COLLECTIONS AND THE REPAIR OF
THE DEBTOR'S HOUSES AND OTHER PROPERTY." 

THE DEBTOR, THE COMMITTEE AND THE SECURITIES AND EXCHANGE COMMISSION
JOINED AND "CONTENDED THAT IN A CHAPTER X PROCEEDING THE COURT HAS THE
DUTY OF DETERMINING THE REASONABLENESS OF ALL FEES, WHETHER COMPENSABLE
FEES CHARGEABLE TO THE ESTATE OR FOR THOSE WHICH ARE NON-COMPENSABLE
AND WHICH CANNOT BE SO CHARGED."  BUT JUDGE GIBSON HELD OTHERWISE AND I
THINK VERY PROPERLY CONCLUDED, "IN THE INSTANT CASE NO SUFFICIENT FUND
HAS BEEN CREDITED TO THE DEPOSITING STOCKHOLDERS AGAINST WHICH ANY
ALLOWANCE TO CLAIMANTS COULD BE CHARGED.  THE JUDGMENT, IF ANY WERE
ENTERED, WOULD BE DIRECTLY AGAINST THE STOCKHOLDERS."  THIS HE THOUGHT
"SEEMS TO STRETCH THE INTERPRETATIVE POWERS OF THE COURT TOO FAR." 

THUS DENIED COMPENSATION ON A QUANTUM MERUIT BASIS FOR SERVICES
ADMITTEDLY RENDERED FOR AND OF VALUE TO THESE STOCKHOLDERS, AND THE
BANKRUPTCY COURT HOLDING ITSELF WITHOUT JURISDICTION TO ENFORCE THEIR
CONTRACT, THESE LAWYERS THEN WENT INTO THE COURTS OF THE STATE OF NEW
YORK TO ENFORCE IT.  THEY NAMED MEMBERS OF THE COMMITTEE AS SUCH AS
DEFENDANTS.  THIS WAS QUITE PROPER, FOR IT WAS THE "COMMITTEE" WHICH,
AS ESCROW AGENT, HELD THE STOCK IN QUESTION.  THE COMPLAINT ASKED
JUDGMENT THAT THE COMMITTEE DELIVER UP THE PROPERTY OF WHICH IT WAS
STAKEHOLDER BUT ASKED NO JUDGMENT AGAINST THE COMMITTEE THAT WOULD BE
PAYABLE FROM ANY OTHER FUND OR PROPERTY IN ITS HANDS.  THE SUIT ALSO
MADE PARTIES DEFENDANT THE INDIVIDUAL PREFERRED STOCKHOLDERS IN WHOSE
BEHALF THE AGREEMENT WAS MADE AND WHO BECAME PARTIES TO IT INDIVIDUALLY
BY PUTTING UP THEIR STOCKS AND AGAINST WHOM JUDGE GIBSON HELD HE HAD NO
POWER IN THE BANKRUPTCY PROCEEDING TO ENTER JUDGMENT.  THIS ACTION IS
THUS AGAINST BOTH INDIVIDUALS AND THE COMMITTEE. 

HOWEVER, THE QUESTION WHICH WAS CERTIFIED TO THE COURT OF APPEALS,
AND WHICH IS ALL THAT WE TOOK FOR REVIEW ON CERTIORARI TO THAT COURT,
IGNORES ANY QUESTION OF INDIVIDUAL LIABILITY AND ONLY ASKS, "HAS THE
SUPREME COURT OF THE STATE OF NEW YORK JURISDICTION OVER THE SUBJECT
MATTER OF THIS ACTION TO RECOVER FOR LEGAL SERVICES RENDERED TO THE
STOCKHOLDERS COMMITTEE WHICH ARE NOT COMPENSABLE OUT OF THE ASSETS OF
THE DEBTOR'S ESTATE, IN A CHAPTER X REORGANIZATION PROCEEDING UNDER THE
UNITED STATES BANKRUPTCY ACT?" 

READ LITERALLY, I AGREE THAT THE ANSWER TO THAT ABSTRACT QUESTION IS
"NO."  A COMMITTEE ORGANIZED UNDER THE ACT IS A FIDUCIARY WHOSE
COMMITMENTS ARE MADE SUBJECT TO THE SUPERVISION OF THE COURT.  I DO NOT
THINK IT CAN UNDERTAKE, OUT OF ITS TRUST FUNDS OR OUT OF STOCKS
DEPOSITED ONLY UNDER THE GENERAL AGREEMENT PROVIDED FOR BY THE ACT, TO
PAY FOR SERVICES THAT ARE BEYOND THE POWER OF THE COURT TO SUPERVISE. 

BUT THIS COURT, IF I READ ARIGHT, HOLDS THAT NO CONTRACT BETWEEN ANY
PERSON AND A LAWYER FOR SERVICES IN A REORGANIZATION PROCEEDING CAN FIX
THE BASIS OR AMOUNT OF THE FEE EVEN IF SUCH FEES ARE NOT PAYABLE OUT OF
THE ESTATE OR OUT OF ANY FUNDS IN THE COURT'S CONTROL, BECAUSE "THE
STATUTE WAS DESIGNED TO POLICE THE RETURN WHICH ALL SECURITY HOLDERS
OBTAIN FROM REORGANIZATION PLANS.  THE NET RETURN CANNOT BE KEPT UNDER
SUPERVISION IF PRIVATE ARRANGEMENTS EXPRESSED IN ESCROW AGREEMENTS ARE
TO CONTROL." 

I HAD NOT UNDERSTOOD THAT THE BANKRUPTCY ACT IN REORGANIZATION CASES
DISABLES ANYBODY, EVEN IF A STOCKHOLDER, FROM EMPLOYING HIS OWN LAWYER
ON SUCH TERMS AS HE SEES FIT TO FIX BY CONTRACT OR THAT IT DISABLES
LAWYERS FROM ACCEPTING SUCH RETAINERS.  TO INVALIDATE THEM, SO FAR AS
COMPENSATION IS CONCERNED, IS THE EFFECT AND, AS I UNDERSTAND IT, THE
INTENT OF THIS DECISION.  IF ONE PRIVATELY MAY RETAIN A LAWYER, I KNOW
OF NO REASON WHY HE MAY NOT FIX HIS FEE, CONTINGENT OR OTHERWISE, AND
SECURE THE PROMISED COMPENSATION BY PLEDGE OF STOCK IN THE COMPANY
BEING REORGANIZED, OR PAY THE FEE IN SUCH STOCK. 

I AM UNAWARE OF ANY PUBLIC INTERESTS PROTECTED BY THIS DENIAL OF THE
RIGHT TO HIRE ONE'S OWN COUNSEL FOR A FIXED OR DETERMINABLE FEE IN SUCH
CASES.  THE GOOD SERVED BY COURT SUPERVISION IN PREVENTING LAWYER RAIDS
ON FIDUCIARY FUNDS IS NOT ADVANCED BY THIS RULING.  THESE SHARES WERE
PUT UP BY INDIVIDUAL STOCKHOLDERS, PRESUMABLY MENTALLY COMPETENT
ADULTS, IN WHAT PROVED TO BE A GOOD BARGAIN, EVEN IF THEY HAVE TO
PERFORM IT, AND A WINDFALL IF THEY DO NOT.  ARE PEOPLE SITUATED AS THEY
WERE TO BE DISABLED FROM AGREEING UPON A FEE THAT WILL INDUCE COUNSEL
TO EXPOSE MISMANAGEMENT OF THE BANKRUPT OR THE TRUSTEE IN CASES WHERE,
AS HERE, THE CHANCES OF COMPENSATION OTHERWISE ARE DOUBTFUL?    THIS
COURT SEEMS TO RECOGNIZE UNFAIRNESS IN THE SITUATION IT IS CREATING AND
SUGGESTS THAT IT MAY BE REMEDIED BY A NEW APPLICATION FOR LARGER FEES
TO THE BANKRUPTCY COURT.  BUT WE DO NOT TELL THE COURT WHAT TO DO WITH
THE NEW APPLICATION NOR WHERE IT WENT WRONG AS TO THE FORMER ONE. 
INDEED, WE COULD NOT TELL IT OF ITS MISTAKE, IF ANY, FOR WE HAVE ONLY
SCATTERED BITS OF INFORMATION ABOUT THE EVIDENCE ON WHICH THE PREVIOUS
ORDER WAS MADE.  IF WE WOULD BUT PUT OURSELVES IN THE POSITION OF THAT
COURT, I THINK IT WILL AT ONCE APPEAR HOW IMPRACTICAL IS TODAY'S
DECISION. 

JUDGE GIBSON APPARENTLY AGREED THAT THE SERVICES FOR WHICH EITHER THE
ESTATE OR THE COMMITTEE, AS SUCH, SHOULD PAY ARE ADEQUATELY COMPENSATED
BY THE ALLOWANCE OF $37,500.  THE REASON HE DID NOT ALLOW MORE WAS THAT
SERVICES ABOVE THAT VALUE WERE PERFORMED FOR NEITHER THE ESTATE NOR THE
COMMITTEE BUT FOR THE INDIVIDUAL STOCKHOLDERS WHO EMPLOYED AND AGREED
TO PAY THE LAWYERS.  DO WE, WITHOUT SEEING THE RECORD, REVERSE THIS
FINDING?  IF SO, DO WE HOLD THAT THE SERVICES JUDGE GIBSON ENUMERATED
AS NOT RENDERED FOR BENEFIT OF THE ESTATE OR THE COMMITTEE WERE
RENDERED FOR ONE OR THE OTHER INSTEAD OF FOR THE INDIVIDUALS?  OR DO WE
SAY THAT, EVEN IF SUCH SERVICES WERE RENDERED TO INDIVIDUALS, THE
ESTATE SHOULD PAY FOR THEM?  FROM WHAT FUND IS THE ADDITIONAL
COMPENSATION WE ARE SUGGESTING TO BE PAID?  WOULD NOT OTHER PARTIES IN
INTEREST HAVE A JUST GRIEVANCE IF THE ESTATE OF THE BANKRUPT IS
BURDENED WITH PAYING FOR EXTRA-ESTATE SERVICES?  AND WHAT OTHER FUND IS
THERE IN REACH OF THE COURT'S ORDER? 

WHAT WE SEEM TO BE SAYING IS THAT AN ACT WHOSE PURPOSE IS TO GIVE THE
BANKRUPTCY COURT AMPLE POWERS TO SEE THAT NO IMPROPER FEES ARE CHARGED
ON THE ESTATE REALLY COMPELS IT TO MAKE THE ESTATE PAY FEES OF LAWYERS
FOR PRIVATE PARTIES IN CONNECTION WITH REORGANIZATION.  I CANNOT FOLLOW
THIS. 

BUT IF WE DO NOT MEAN THEY SHALL BE PAID FROM THE ESTATE OR THE
COMMITTEE, JUDGE GIBSON HAS ALREADY POINTED OUT THAT THERE IS NO OTHER
FUND.  CAN THIS COURT SAY HE IS WRONG AND THAT WE KNOW OF ONE?  IT IS
SUGGESTED THAT THE BANKRUPTCY COURT MAY MAKE AN ALLOWANCE TO COUNSEL
FOR THE INDIVIDUAL SERVICES AND CHARGE THEM AGAINST THE ESCROWED
STOCK.  I AM NOT AWARE OF ANYTHING WHICH GIVES THE BANKRUPTCY COURT
POWER TO ADJUDICATE THE CONTROVERSY, WHICH IS ESSENTIALLY A CONTRACT
ACTION BETWEEN THE INDIVIDUAL STOCKHOLDERS AND THEIR LAWYERS, MERELY
BECAUSE THE SERVICES INVOLVED APPEARING IN THE REORGANIZATION CASE. 
CLEARLY THE COURT IS HOLDING THAT THE CONTRACT IS NOT VALID INSOFAR AS
IT FIXED THE FEE.  IS IT THEN VALID AS BASIS FOR ALLOWING SOME FEE, BUT
INVALID AS TO THE ONE AGREED UPON?  IF ON QUANTUM MERUIT BASIS THE
ALLOWED FEE EXCEEDS THE PRESENT VALUE OF THE STOCK, MAY THE BANKRUPTCY
COURT GRANT A PERSONAL JUDGMENT FOR THE DEFICIENCY?  IF NOT, THE
CONTRACT IS GOOD TO LIMIT THE LAWYER'S FEE BUT NOT GOOD TO ASSURE
PAYMENT OF IT.  AND IF VALUABLE SERVICES HAVE BEEN RENDERED UNDER THE
CONTRACT FOR WHICH AN ALLOWANCE MIGHT OTHERWISE BE PROPER, SHOULD IT BE
DENIED IF OTHER CONDITIONS OF THE CONTRACT ARE NOT FULFILLED? 

I AM UNABLE TO FIND ANY BASIS IN LAW FOR SAYING THAT THE BANKRUPTCY
COURT HAS ANYTHING WHATEVER TO DO WITH A PRIVATE CONTRACT TO EMPLOY AND
PAY A LAWYER TO GUARD PERSONAL INTERESTS IN A REORGANIZATION CASE,
UNLESS IT IS SOUGHT TO CHARGE THE FEE AGAINST THE ESTATE, OR AGAINST
STOCK DEPOSITED UNDER A GENERAL AGREEMENT WITH THE COMMITTEE FORMED
UNDER THE ACT.  THIS SITUATION INVOLVES NEITHER, BUT ONLY STOCK
SPECIALLY PLACED IN A STAKEHOLDER'S HANDS UNDER THE ESCROW CONTRACT
WITH COUNSEL. 

AN EXPERIENCED AND ABLE DISTRICT JUDGE KNEW ALL THE FACTS AND WE DO
NOT.  THE LAWYERS INVOLVED MADE A COMPLETE DISCLOSURE, AS SHOULD ANY
LAWYER WHO APPLIES TO THE COURT FOR AN ALLOWANCE.  JUDGE GIBSON
APPROVED THE FEES SO FIXED THAT THE ESTATE PAID ITS SHARE AND ONLY ITS
SHARE, WHICH SEEMS TO FULFILL THE PURPOSES OF THE FEDERAL ACT. 

BUT HE SET APART CERTAIN ITEMS OF SERVICES FOR WHICH HE MADE NO
ALLOWANCE BECAUSE THEY WERE RENDERED FOR PRIVATE PARTIES.  THOSE
PARTIES HAD A CONTRACT AS TO WHAT, UNDER THE PECULIAR CIRCUMSTANCES,
SHOULD BE PAID FOR THOSE SERVICES.  JUDGE GIBSON LEFT THE CONTROVERSY
AS TO THAT CONTRACT TO THE STATE COURTS TO ADJUDICATE.  AN ACTION HAS
BEEN BROUGHT TO REQUIRE DELIVERY OF THE STOCK PUT IN ESCROW BY THE
INDIVIDUALS TO COMPENSATE THEIR LAWYERS.  THE ACTION SEEKS NO MONEY
JUDGMENT AND NO RELIEF THAT WOULD AFFECT OR COULD AFFECT THE ESTATE IN
THE HANDS OF THE BANKRUPTCY COURT. 

I SHOULD REMAND THE CASE TO THE COURTS OF NEW YORK FOR SUCH FURTHER
PROCEEDINGS AS STATE LAW PROVIDES FOR ITS ADJUDICATION AND NOT
INCONSISTENT WITH OUR HOLDING THAT FIDUCIARY FUNDS CANNOT BE COMMITTED
EXCEPT BY THE BANKRUPTCY COURT. 

THE CHIEF JUSTICE AND MR. JUSTICE FRANKFURTER JOIN IN THIS OPINION. 
..END :



LA CROSSE TEL. CORP. V. WIS. BOARD, 336 U.S. 18 


ARGUED NOVEMBER 18-19, 1948.  - DECIDED JANUARY 17, 1949.  - 251 WIS.
583, 30 N.W.2D 241, REVERSED. 


1.  A CERTIFICATION BY THE WISCONSIN EMPLOYMENT RELATIONS BOARD OF A
UNION AS THE COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES OF
AN EMPLOYER ENGAGED IN INTERSTATE COMMERCE, WHICH CERTIFICATION HAS
BEEN REVIEWED AND SUSTAINED BY THE HIGHEST COURT OF THE STATE, HELD, IN
VIEW OF THE EFFECT OF THE CERTIFICATION UNDER THE STATE LAW, A "FINAL
JUDGMENT" WITHIN THE MEANING OF SEC. 237(A) OF THE JUDICIAL CODE AND
REVIEWABLE HERE, ALTHOUGH THE CERTIFICATION WAS NOT IN THE FORM OF A
COMMAND.  PP. 21-24. 

2.  IN A PROCEEDING UNDER STATE LAW, THE WISCONSIN EMPLOYMENT
RELATIONS BOARD CERTIFIED THAT THE EMPLOYEES IN THE PLANT AND TRAFFIC
DEPARTMENTS OF A TELEPHONE COMPANY HAD ELECTED TO COMBINE IN A SINGLE
BARGAINING UNIT AND HAD CHOSEN A CERTAIN LABOR ORGANIZATION AS THEIR
COLLECTIVE BARGAINING REPRESENTATIVE, AND THAT THE EMPLOYEES IN THE
OFFICE DEPARTMENT HAD ELECTED TO CONSTITUTE THEMSELVES AS A SEPARATE
UNIT AND HAD CHOSEN NOT TO HAVE ANY COLLECTIVE BARGAINING
REPRESENTATIVE.  THE NATIONAL LABOR RELATIONS BOARD HAD NOT UNDERTAKEN,
UNDER THE NATIONAL LABOR RELATIONS ACT, TO DETERMINE THE APPROPRIATE
BARGAINING REPRESENTATIVE OR UNIT OF REPRESENTATION OF THE EMPLOYEES. 
THE COMPANY CONCEDEDLY WAS ENGAGED IN INTERSTATE COMMERCE AND THE
INDUSTRY WAS ONE OVER WHICH THE NATIONAL LABOR RELATIONS BOARD HAD
CONSISTENTLY EXERCISED JURISDICTION.  HELD:  THE STATE BOARD'S
CERTIFICATION IS INVALID AS IN CONFLICT WITH THE NATIONAL LABOR
RELATIONS ACT.  BETHLEHEM STEEL CO. V. NEW YORK STATE LABOR RELATIONS
BOARD, 330 U.S. 767, FOLLOWED.  PP. 24-26. 

3.  THE LABOR MANAGEMENT RELATIONS ACT OF 1947, WHICH AUTHORIZES THE
NATIONAL BOARD UNDER SPECIFIED CONDITIONS TO CEDE ITS JURISDICTION TO A
STATE AGENCY, DOES NOT REQUIRE A RESULT DIFFERENT FROM THAT HERE
REACHED.  PP. 26-27. 

LA CROSSE TELEPHONE CORP. V. WISCONSIN EMPLOYMENT RELATIONS BOARD ET
AL. 

NO. 38.  APPEAL FROM THE SUPREME COURT OF WISCONSIN.* 

*TOGETHER WITH NO. 39, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL B-953, A.F. OF L. V. WISCONSIN EMPLOYMENT RELATIONS
BOARD ET AL., ALSO ON APPEAL FROM THE SAME COURT. 

THE APPELLANT TELEPHONE COMPANY AND THE APPELLANT UNION EACH BROUGHT
AN ACTION IN A STATE COURT TO SET ASIDE A CERTIFICATION BY THE
WISCONSIN EMPLOYMENT RELATIONS BOARD.  THE STATE CIRCUIT COURT HELD
THAT THE STATE BOARD WAS WITHOUT JURISDICTION TO ISSUE THE
CERTIFICATION.  THE STATE SUPREME COURT REVERSED.  251 WIS. 583, 30
N.W.2D 241.  ON APPEALS TO THIS COURT, REVERSED, P. 27. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES, HERE ON APPEAL FROM THE WISCONSIN SUPREME COURT, 28
U.S.C. SEC. 344(A), 43 STAT. 937, 45 STAT. 54, PRESENT THE QUESTION
WHETHER A CERTIFICATION OF A UNION BY THE WISCONSIN EMPLOYMENT
RELATIONS BOARD, WIS. STATS. 1947, CH. 111, AS THE COLLECTIVE
BARGAINING REPRESENTATIVE OF THE EMPLOYEES OF APPELLANT COMPANY,
CONFLICTS WITH THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 29
U.S.C. SECS. 151 ET SEQ. 

PRIOR TO 1945 THE APPELLANT COMPANY RECOGNIZED THE APPELLANT UNION AS
THE COLLECTIVE BARGAINING REPRESENTATIVE OF ITS PLANT AND TRAFFIC
DEPARTMENT EMPLOYEES.  THE COMPANY AND THE UNION ENTERED INTO A
COLLECTIVE BARGAINING AGREEMENT WHICH BY ITS TERMS WAS TO CONTINUE FROM
YEAR TO YEAR UNLESS TERMINATED BY EITHER PARTY ON A SPECIFIED NOTICE. 
AT A TIME WHEN CERTAIN PROVISIONS OF THAT AGREEMENT WERE BEING
RENEGOTIATED A RIVAL UNION, THE TELEPHONE GUILD, FILED A PETITION WITH
THE NATIONAL BOARD ASKING THAT IT CERTIFY THE COLLECTIVE BARGAINING
REPRESENTATIVE OF THESE EMPLOYEES.  BEFORE THE NATIONAL BOARD ACTED,
THE GUILD WITHDREW ITS PETITION AND FILED A PETITION WITH THE WISCONSIN
BOARD SEEKING THE SAME RELIEF. 

THE WISCONSIN BOARD HELD A HEARING AND DIRECTED THAT SEPARATE
ELECTIONS BE HELD AMONG THE EMPLOYEES IN THE PLANT, TRAFFIC, AND OFFICE
DEPARTMENTS OF THE COMPANY TO DETERMINE WHETHER THEY DESIRED TO BE
GROUPED IN A SINGLE UNIT OR IN DEPARTMENTAL UNITS AND WHAT
REPRESENTATIVE, IF ANY, THEY DESIRED TO ELECT.  AFTER THE ELECTION THE
WISCONSIN BOARD CERTIFIED THAT THE EMPLOYEES IN THE PLANT AND TRAFFIC
DEPARTMENTS HAD ELECTED TO COMBINE IN A SINGLE BARGAINING UNIT AND HAD
CHOSEN THE GUILD AS THEIR COLLECTIVE BARGAINING REPRESENTATIVE, AND
THAT THE EMPLOYEES IN THE OFFICE DEPARTMENT HAD ELECTED TO CONSTITUTE
THEMSELVES AS A SEPARATE UNIT AND HAD CHOSEN NOT TO HAVE ANY COLLECTIVE
BARGAINING REPRESENTATIVE. 

EACH APPELLANT BROUGHT AN ACTION IN THE WISCONSIN COURTS TO HAVE THE
CERTIFICATION SET ASIDE.  THE CIRCUIT COURT, RELYING ON BETHLEHEM STEEL
CO. V. NEW YORK LABOR RELATIONS BOARD, 330 U.S. 767, HELD THAT THE
WISCONSIN BOARD WAS WITHOUT JURISDICTION TO ISSUE THE CERTIFICATION. 
THE SUPREME COURT OF WISCONSIN REVERSED.  251 WIS. 583, 30 N.W.2D 241. 

FIRST.  WE ARE MET AT THE OUTSET WITH A CONTENTION THAT THE
CERTIFICATION OF THE WISCONSIN BOARD WHICH HAS BEEN SUSTAINED BY THE
WISCONSIN SUPREME COURT IS NOT A "FINAL JUDGMENT" WITHIN THE MEANING OF
SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 344.  THE ARGUMENT IS
THAT UNDER WISCONSIN LAW THE CERTIFICATION IS NO MORE THAN A REPORT ON
THE RESULTS OF AN INVESTIGATION MADE KNOWN TO THE PARTIES FOR SUCH USE
AS THEY MAY DESIRE, THAT NOTHING CAN BE DONE BY ANY STATE AGENCY TO
ENFORCE OBSERVANCE OF THE CERTIFICATION, THAT THE COMPANY CANNOT BE
REQUIRED TO BARGAIN WITH THE CERTIFIED UNION UNTIL AND UNLESS AN UNFAIR
PRACTICE CHARGE IS LODGED AGAINST IT, AND THAT IN SUCH PROCEEDING ALL
THE ISSUES INVOLVED IN THE CERTIFICATION PROCEEDING CAN BE
RELITIGATED.  IF THAT CONTENTION IS CORRECT, THE CASE IS OF COURSE NOT
RIPE FOR THE INTERVENTION OF THE FEDERAL JUDICIAL POWER.  SEE ROCHESTER
TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 130-131 AND CASES
CITED. 

BUT IT HAS NOT BEEN SHOWN THAT THE WISCONSIN LAW GIVES SUCH SLIGHT
FORCE TO THE CERTIFICATION.  THE STATUTE PROVIDES THAT THE
REPRESENTATIVE CHOSEN BY THE EMPLOYEES SHALL BE THE EXCLUSIVE ONE FOR
PURPOSES OF COLLECTIVE BARGAINING.  SEC. 111.05(1).  PROVISION IS MADE
FOR THE BOARD TO TAKE A SECRET BALLOT OF THE EMPLOYEES AND TO CERTIFY
THE RESULTS THEREOF, WHENEVER A QUESTION ARISES CONCERNING THE
REPRESENTATION OF EMPLOYEES IN A COLLECTIVE BARGAINING UNIT.  SEC.
111.05(3).  AND THE STATUTE CONTAINS THE FOLLOWING DIRECTION:  "THE
BOARD'S CERTIFICATION OF THE RESULTS OF ANY ELECTION SHALL BE
CONCLUSIVE AS TO THE FINDINGS INCLUDED THEREIN UNLESS REVIEWED IN THE
SAME MANNER AS PROVIDED BY SUBSECTION (8) OF SECTION 111.07 FOR REVIEW
OF ORDERS OF THE BOARD."  FN1 SEC. 111.05(3).  THE CERTIFICATION IN
THESE CASES HAS BEEN REVIEWED AND SUSTAINED BY THE HIGHEST COURT OF
WISCONSIN.  WHILE THAT CERTIFICATION IS NOT IRREVOCABLE FOR ALL TIME,
FN2  IT FIXES A STATUS TO WHICH WISCONSIN PROVIDES A SANCTION.  FOR IT
IS AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO REFUSE TO BARGAIN WITH
THE REPRESENTATIVE OF A MAJORITY OF THE EMPLOYEES.  FN3 SEC.
111.06(D).  AND SINCE SEC. 111.05(3) MAKES THE CERTIFICATION, SUBJECT
TO JUDICIAL REVIEW, "CONCLUSIVE AS TO THE FINDINGS INCLUDED THEREIN,"
IT WOULD SEEM THAT THE CERTIFICATION CANNOT BE COLLATERALLY ATTACKED IN
THAT PROCEEDING OR HEARD DE NOVO.  WE ARE POINTED TO NO WISCONSIN
AUTHORITY TO THE EFFECT THAT IT CAN BE. 

ON THIS PHASE OF THE CASE WE ARE, INDEED, REFERRED TO ONLY ONE
WISCONSIN AUTHORITY AND THAT IS UNITED R. & W.D.S.E. V. WISCONSIN
BOARD, 245 WIS. 636, 15 N.W.2D 844.  BUT THAT CASE MERELY HELD THAT AN
ORDER OF THE WISCONSIN BOARD THAT A REFERENDUM OF EMPLOYEES BY SECRET
BALLOT BE HELD TO DETERMINE WHETHER AN "ALL UNION" AGREEMENT WAS
DESIRED WAS NOT REVIEWABLE.  IT DID NOT DEAL WITH A CERTIFICATE WHICH
WAS IN FACT REVIEWED AND SUSTAINED BY THE SAME COURT AS IN THE PRESENT
CASES.  IT IS TRUE THAT IN THE OPINION BELOW, THE WISCONSIN SUPREME
COURT SAID THAT THE "MERE FACT-FINDING PROCEDURE" OF THE WISCONSIN
BOARD IN ASCERTAINING THE FACTS, IN ORDERING AN ELECTION, AND IN
CERTIFYING THE RESULT "CONSTITUTES ACTION IN MERELY ITS MINISTERIAL
CAPACITY."  251 WIS. AT 592, 30 N.W.2D AT 245.  BUT THAT COMMENT WAS
DIRECTED TO THE LACK OF DISCRETION WHICH THE STATE STATUTE HAD LEFT THE
WISCONSIN BOARD.  IT HAD NO RELEVANCE TO THE EFFECT OF THE
CERTIFICATION UNDER WISCONSIN LAW. 

WHILE THE WISCONSIN EMPLOYMENT RELATIONS BOARD SEEMS READIER THAN
SOME TO REEXAMINE THE STATUS OF A BARGAINING REPRESENTATIVE ON THE
GROUND THAT IT HAS LOST THE SUPPORT OF A MAJORITY,  FN4  IT
NEVERTHELESS APPEARS TO BE WISCONSIN LAW THAT A CERTIFICATION IS
BINDING UPON AN EMPLOYER SO LONG AS IT STANDS.  FN5 

WE ASSUMED IN ALLEGHENY LUDLUM STEEL CORP. V. KELLEY, 330 U.S. 767,
THAT THE CERTIFICATION OF A COLLECTIVE BARGAINING REPRESENTATIVE,
SUSTAINED BY THE HIGHEST COURT OF THE STATE, WAS A FINAL JUDGMENT,
ALTHOUGH IT DID NOT OF ITSELF COMMAND ACTION BUT LIKE THE CERTIFICATION
HERE WAS ENFORCIBLE IN LAW ONLY BY ANOTHER PROCEEDING.  FN6 

WE THINK THAT IS THE CORRECT VIEW.  THE FACT THAT WISCONSIN'S
CERTIFICATION WAS NOT IN THE FORM OF A COMMAND IS IMMATERIAL.  SEE
AMERICAN FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. 401, 408.  IT WAS
NOT AN ABSTRACT DETERMINATION OF STATUS.  NOR WAS IT MERELY AN INTERIM
ADJUDICATION IN AN UNCOMPLETED ADMINISTRATIVE PROCESS.  IT ESTABLISHED
LEGAL RIGHTS AND RELATIONSHIPS.  IT TOLD THE EMPLOYER, SUBJECT TO
JUDICIAL REVIEW, WITH WHOM HE COULD NOT REFUSE TO NEGOTIATE WITHOUT
RISK OF SANCTIONS.  THE CHARACTER OF THE CERTIFICATION WAS THEREFORE
SUCH AS TO MAKE IT REVIEWABLE UNDER THE APPROPRIATE STANDARDS FOR
EXERCISE OF THE FEDERAL JUDICIAL POWER. 

SECOND.  THE WISCONSIN SUPREME COURT CONCLUDED THAT THE WISCONSIN
BOARD COULD EXERCISE JURISDICTION HERE UNTIL AND UNLESS THE NATIONAL
BOARD UNDERTOOK TO DETERMINE THE APPROPRIATE BARGAINING REPRESENTATIVE
OR UNIT OF REPRESENTATION OF THESE EMPLOYEES.  THAT VIEW WAS URGED ON
US IN THE LIKE CASES COMING HERE UNDER A NEW YORK STATUTE.  IN
BETHLEHEM STEEL CO. V. NEW YORK LABOR RELATIONS BOARD, SUPRA, AT 776,
WE REJECTED THAT ARGUMENT, SAYING: 

"THE STATE ARGUES FOR A RULE THAT WOULD ENABLE IT TO ACT UNTIL THE
FEDERAL BOARD HAD ACTED IN THE SAME CASE.  BUT WE DO NOT THINK THAT A
CASE BY CASE TEST OF FEDERAL SUPREMACY IS PERMISSIBLE HERE."  WE WENT
ON TO POINT OUT THAT THE NATIONAL BOARD HAD JURISDICTION OF THE
INDUSTRY IN WHICH THOSE PARTICULAR EMPLOYERS WERE ENGAGED AND HAD
ASSERTED CONTROL OF THEIR LABOR RELATIONS IN GENERAL.  BOTH THE STATE
AND THE FEDERAL STATUTES HAD LAID HOLD OF THE SAME RELATIONSHIP AND HAD
PROVIDED DIFFERENT STANDARDS FOR ITS REGULATION.  SINCE THE EMPLOYERS
IN QUESTION WERE SUBJECT TO REGULATION BY THE NATIONAL BOARD, WE
THOUGHT THE SITUATION TOO FRAUGHT WITH POTENTIAL CONFLICT TO PERMIT THE
INTRUSION OF THE STATE AGENCY, EVEN THOUGH THE NATIONAL BOARD HAD NOT
ACTED IN THE PARTICULAR CASES BEFORE US. 

THOSE CONSIDERATIONS CONTROL THE PRESENT CASES.  THIS EMPLOYER IS
CONCEDEDLY ENGAGED IN INTERSTATE COMMERCE; AND THE INDUSTRY IS ONE OVER
WHICH THE NATIONAL BOARD HAS CONSISTENTLY EXERCISED JURISDICTION.  FN7
THE WISCONSIN ACT PROVIDES THAT A MAJORITY OF EMPLOYEES IN A SINGLE
CRAFT, DIVISION, DEPARTMENT OR PLANT OF AN EMPLOYER MAY ELECT TO
CONSTITUTE THAT GROUP A SEPARATE BARGAINING UNIT.  SEC. 111.02(6).  THE
FEDERAL ACT LEAVES THAT MATTER TO THE DISCRETION OF THE BOARD.  FN8
WHEN UNDER THOSE CIRCUMSTANCES THE STATE BOARD PUTS ITS IMPRIMATUR ON A
PARTICULAR GROUP AS THE COLLECTIVE BARGAINING AGENT OF EMPLOYEES, IT
FREEZES INTO A PATTERN THAT WHICH THE FEDERAL ACT HAS LEFT FLUID.  FN9
IN PRACTICAL EFFECT THE TRUE MEASURE OF CONFLICT BETWEEN THE STATE AND
FEDERAL SCHEME OF REGULATION MAY NOT BE FOUND ONLY IN THE COLLISION
BETWEEN THE FORMAL ORDERS THAT THE TWO BOARDS MAY ISSUE.  WE KNOW THAT
ADMINISTRATIVE PRACTICE ALSO DISPOSES OF CASES IN WHICH NO ORDER HAS
BEEN ENTERED.  DISPOSITION OF CONTROVERSIES ON AN ADMINISTRATIVE AS
DISTINGUISHED FROM A FORMAL BASIS WILL OFTEN REFLECT THE ATTITUDES OF
THE NATIONAL BOARD WHICH HAVE NOT BEEN REDUCED TO ORDERS IN THOSE
SPECIFIC CASES.  A CERTIFICATION BY A STATE BOARD UNDER A DIFFERENT OR
CONFLICTING THEORY OF REPRESENTATION MAY THEREFORE BE AS READILY
DISRUPTIVE OF THE PRACTICE UNDER THE FEDERAL ACT AS IF THE ORDERS OF
THE TWO BOARDS MADE A HEAD-ON COLLISION.  THESE ARE THE VERY REAL
POTENTIALS OF CONFLICT WHICH LEAD US TO ALLOW SUPREMACY  FN10  TO THE
FEDERAL SCHEME EVEN THOUGH IT HAS NOT YET BEEN APPLIED IN ANY FORMAL
WAY TO THIS PARTICULAR EMPLOYER.  THE PROBLEM OF EMPLOYEE
REPRESENTATION IS A SENSITIVE AND DELICATE ONE IN INDUSTRIAL
RELATIONS.  THE UNCERTAINTY AS TO WHICH BOARD IS MASTER AND HOW LONG IT
WILL REMAIN SUCH CAN BE AS DISRUPTIVE OF PEACE BETWEEN VARIOUS
INDUSTRIAL FACTIONS AS ACTUAL COMPETITION BETWEEN TWO BOARDS FOR
SUPREMACY.  WE ARE SATISFIED WITH THE WISDOM OF THE POLICY UNDERLYING
THE BETHLEHEM CASE AND ADHERE TO IT. 

THE RESULT WE HAVE REACHED IS NOT CHANGED BY THE LABOR MANAGEMENT
RELATIONS ACT OF 1947, 61 STAT. 136, 29 U.S.C. SUPP. I, SECS. 141 ET
SEQ. THAT ACT GRANTS THE NATIONAL BOARD AUTHORITY UNDER SPECIFIED
CONDITIONS TO CEDE ITS JURISDICTION TO A STATE AGENCY.  FN11  BUT IT
DOES NOT APPEAR THAT THERE HAS BEEN ANY CESSION OF JURISDICTION TO
WISCONSIN BY THE NATIONAL BOARD IN REPRESENTATION PROCEEDINGS.  FN12
REVERSED. 

FN1  THAT REVIEW EXTENDS TO ADMINISTRATIVE DECISIONS AFFECTING LEGAL
RIGHTS, DUTIES, AND PRIVILEGES WHETHER AFFIRMATIVE OR NEGATIVE IN FORM,
SEC. 227.15, AND IS ALLOWED ANY PERSON AGGRIEVED AND DIRECTLY AFFECTED
BY THE ADMINISTRATIVE DECISION.  SEC. 227.16. 

FN2  SECTION 111.05(4) PROVIDES "THE FACT THAT ONE ELECTION HAS BEEN
HELD SHALL NOT PREVENT THE HOLDING OF ANOTHER ELECTION AMONG THE SAME
GROUP OF EMPLOYES, PROVIDED THAT IT APPEARS TO THE BOARD THAT
SUFFICIENT REASON THEREFOR EXISTS." 

FN3  SECTION 111.06(D) ALSO PROVIDES THAT WHERE AN EMPLOYER FILES
WITH THE BOARD A PETITION REQUESTING A DETERMINATION AS TO MAJORITY
REPRESENTATION "HE SHALL NOT BE DEEMED TO HAVE REFUSED TO BARGAIN UNTIL
AN ELECTION HAS BEEN HELD AND THE RESULT THEREOF HAS BEEN CERTIFIED TO
HIM BY THE BOARD."  BUT WE ARE POINTED TO NO AUTHORITY HOLDING THAT
WHERE A CERTIFICATION HAS ALREADY BEEN MADE, A RECERTIFICATION CAN BE
DEMANDED.  SECTION 111.05(3), INDEED, MAKES THE CERTIFICATION
"CONCLUSIVE." 

FN4  SEE SEC. 111.05(4), SUPRA, NOTE 2; RYDAHL'S LAUNDERERS &
CLEANERS, WIS. E.R.B. DECISION NO. 677(1944); UAW-CIO AND FOUR WHEEL
DRIVE AUTO CO., WIS. E.R.B. DECISION NO. 687(1944); CF. AUA AND GARTON
TOY CO., WIS. E.R.B. DECISION NO. 1238(1947); KILLINGSWORTH, STATE
LABOR RELATIONS ACTS 161-62(1948). 

FN5  SEE IN RE UNITED BROTHERHOOD OF CARPENTERS & JOINERS, 2 L.R.R.M.
894(WIS.  COUNTY CIR. CT., 1938); IN RE CHARLES ABRESCH CO., 3 L.R.R.M.
639(WIS.  E.R.B. DECISION NO. 744, 1938); CF. WISCONSIN BOARD V. HALL
GARAGE CORP., 18 L.R.R.M. 2419(WIS.  COUNTY CIR. CT., 1946). 

FN6  IN ALLEGHENY LUDLUM STEEL CORP. V. KELLEY, SUPRA, SUIT HAD BEEN
BROUGHT IN THE STATE COURT FOR A DECLARATORY JUDGMENT TO RESTRAIN THE
STATE LABOR BOARD FROM DETERMINING A REPRESENTATIVE OF PLAINTIFF'S
SUPERVISORY EMPLOYEES TO BARGAIN COLLECTIVELY WITH THE PLAINTIFF. 
UNDER NEW YORK LAW THE LABOR BOARD HAD AUTHORITY TO HOLD ELECTIONS TO
DETERMINE EMPLOYEE REPRESENTATION AND TO CERTIFY THE RESULTS.  30
MCKINNEY'S CONS.  LAWS SEC. 705.  CERTIFICATION IN ITSELF, AS IN THE
INSTANT CASE, DID NOT IMPOSE A LEGAL PENALTY.  SUIT HAD TO BE BROUGHT
IN AN UNFAIR LABOR PRACTICE PROCEEDING TO ACCOMPLISH SUCH RESULT.  30
IBID. SEC. 706.  REFUSAL TO BARGAIN WITH THE REPRESENTATIVE OF THE
EMPLOYEES WAS AN UNFAIR LABOR PRACTICE.  30 IBID. SEC. 704(6).  EVEN
THOUGH THE NEW YORK LAW DID NOT STATE, AS DOES THE WISCONSIN LAW, THAT
CERTIFICATION BY THE BOARD WAS CONCLUSIVE, WE CONSIDERED A DECISION OF
THE NEW YORK COURT APPROVING THE JURISDICTION OF THE STATE BOARD TO
CONDUCT A REPRESENTATIVE PROCEEDING A FINAL JUDGMENT RIPE FOR OUR
CONSIDERATION. 

FN7  SEE ELYRIA TELEPHONE CO., 58 N.L.R.B. 402; NEWARK TELEPHONE CO.,
59 N.L.R.B. 1408; PEOPLE'S TELEPHONE CORP., 69 N.L.R.B. 540; OHIO
TELEPHONE SERVICE CO., 72 N.L.R.B. 488. 

THE APPELLANT COMPANY OPERATES A TELEPHONE BUSINESS IN LA CROSSE
COUNTY, WISCONSIN.  IT IS A SUBSIDIARY OF THE CENTRAL TELEPHONE CO.,
WHOSE SUBSIDIARIES OPERATE TELEPHONE BUSINESSES IN MANY STATES.  THE
CONCESSION THAT THE COMPANY IS ENGAGED IN INTERSTATE COMMERCE IS BASED
ON THE INTERSTATE TELEPHONE CALLS WHICH IT HANDLES. 

FN8  "THE BOARD SHALL DECIDE IN EACH CASE WHETHER, IN ORDER TO INSURE
TO EMPLOYEES THE FULL BENEFIT OF THEIR RIGHT TO SELF-ORGANIZATION AND
TO COLLECTIVE BARGAINING, AND OTHERWISE TO EFFECTUATE THE POLICIES OF
THIS ACT, THE UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE
BARGAINING SHALL BE THE EMPLOYER UNIT, CRAFT UNIT, PLANT UNIT, OR
SUBDIVISION THEREOF." 

FN9  MOREOVER, THE WISCONSIN ACT EXCLUDES FROM THE DEFINITION OF
EMPLOYEE THOSE WORKING IN A SUPERVISORY CAPACITY.  SEC. 111.02(3). 
THEY WERE, HOWEVER, INCLUDED UNDER THE PROTECTION OF THE FEDERAL ACT AS
THEN WRITTEN.  PACKARD MOTOR CO. V. LABOR BOARD, 330 U.S. 485.  THE
DEFINITION OF EMPLOYEE UNDER THE WISCONSIN ACT ALSO EXCLUDES CERTAIN
STRIKERS AND OTHERS WHO HAVE NOT BEEN AT WORK FOR CERTAIN PERIODS. 
SEC. 111.02(3).  THESE LATTER EXCEPTIONS LIKEWISE DO NOT IN THE MAIN
SQUARE WITH THE DEFINITION OF EMPLOYEE CONTAINED IN SEC. 2(3) OF THE
FEDERAL ACT. 

FN10  U.S. CONST. ART. VI. 

FN11  SECTION 10(A) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
NOW PROVIDES IN PART:  "THE BOARD IS EMPOWERED BY AGREEMENT WITH ANY
AGENCY OF ANY STATE OR TERRITORY TO CEDE TO SUCH AGENCY JURISDICTION
OVER ANY CASES IN ANY INDUSTRY (OTHER THAN MINING, MANUFACTURING,
COMMUNICATIONS, AND TRANSPORTATION EXCEPT WHERE PREDOMINANTLY LOCAL IN
CHARACTER) EVEN THOUGH SUCH CASES MAY INVOLVE LABOR DISPUTES AFFECTING
COMMERCE, UNLESS THE PROVISION OF THE STATE OR TERRITORIAL STATUTE
APPLICABLE TO THE DETERMINATION OF SUCH CASES BY SUCH AGENCY IS
INCONSISTENT WITH THE CORRESPONDING PROVISION OF THIS ACT OR HAS
RECEIVED A CONSTRUCTION INCONSISTENT THEREWITH." 

FN12  THE AGREEMENT OF AUGUST 27, 1948, BETWEEN THE NATIONAL BOARD
AND THE WISCONSIN BOARD IS RESTRICTED TO THE IMPLEMENTATION OF SEC.
14(B) OF THE FEDERAL ACT.  SEE 22 L.R.R. 268. 

MR. JUSTICE RUTLEDGE, HAVING JOINED IN THE DISSENT IN BETHLEHEM STEEL
CO. V. NEW YORK LABOR RELATIONS BOARD, 330 U.S. 767, SEE P. 777,
ACQUIESCES IN THE COURT'S OPINION AND JUDGMENT IN THIS CASE. 
..END :













COMMISSIONER V. JACOBSON, 336 U.S. 28 


NOS. 32 AND 33.  ARGUED NOVEMBER 8, 1948.  - DECIDED JANUARY 17, 1949. 
164 F.2D 594, REVERSED. 


IN 1938, 1939 AND 1940, AN INDIVIDUAL TAXPAYER, IN STRAITENED
FINANCIAL CIRCUMSTANCES BUT SOLVENT, PURCHASED AT LESS THAN THEIR FACE
AMOUNT CERTAIN SECURED NEGOTIABLE BONDS ORIGINALLY ISSUED BY HIM AT
FACE VALUE FOR CASH.  SOME OF THE PURCHASES WERE DIRECTLY FROM THE
BONDHOLDERS, OTHERS WERE THROUGH AGENTS OF THE TAXPAYER OR OF THE
BONDHOLDERS.  ALTHOUGH EACH SELLER KNEW THAT THE BONDS WERE BEING
BOUGHT BY OR FOR THE MAKER, THERE WAS NOTHING TO INDICATE THAT ANY
SELLER INTENDED TO TRANSFER OR RELEASE SOMETHING FOR NOTHING OR TO MAKE
A GIFT OF ANY PART OF HIS CLAIM, AS DISTINGUISHED FROM MAKING A SALE
AND ASSIGNMENT OF HIS WHOLE CLAIM FOR THE HIGHEST AVAILABLE PRICE. 
HELD:  UNDER SEC. 22(A) OF THE REVENUE ACT OF 1938 AND OF THE INTERNAL
REVENUE CODE, THE GAIN TO THE TAXPAYER FROM EACH PURCHASE WAS
INCLUDIBLE IN GROSS INCOME FOR THE YEAR IN WHICH HE MADE THE PURCHASE,
AND WAS NOT EXCLUDIBLE AS A "GIFT" UNDER SEC. 22(B)(3) OF THAT ACT AND
CODE.  PP. 29-52. 

1.  THE TAXPAYER'S GAINS FROM SUCH TRANSACTIONS MUST BE INCLUDED IN
HIS GROSS INCOME UNDER SEC. 22(A).  PP. 38-47. 

(A)  ON THE FACTS OF THIS CASE, THE TAXPAYER REALIZED AN IMMEDIATE
FINANCIAL GAIN FROM HIS PURCHASE OF THESE BONDS AT A DISCOUNT.  PP. 38
41. 

(B)  THE AMENDMENTS TO SEC. 22(B) OF THE INTERNAL REVENUE CODE BY THE
REVENUE ACT OF 1939, THOUGH RELATING TO CORPORATE TAXPAYERS, ARE
PERSUASIVE THAT A NATURAL PERSON IS OBLIGED TO INCLUDE IN HIS GROSS
INCOME UNDER SEC. 22(A) GAINS OF THE KIND HERE INVOLVED.  PP. 41-47. 

2.  GAINS OF THIS TYPE ARE NOT EXCLUDED FROM THE TAXPAYER'S GROSS
INCOME BY THE GENERAL EXEMPTION OF "GIFTS" FROM TAXATION PRESCRIBED BY
SEC. 22(B)(3).  PP. 47-52. 

(A)  THE PROVISION OF THE INTERNAL REVENUE CODE FOR THE EXCLUSION OF
"GIFTS" FROM GROSS INCOME IS TO BE CONSTRUED WITH RESTRAINT IN THE
LIGHT OF THE PURPOSE OF CONGRESS TO TAX INCOME COMPREHENSIVELY.  PP. 47
49. 

(B)  ON THE FACTS OF THIS CASE, THERE IS NOTHING TO INDICATE THAT THE
BONDHOLDERS INTENDED TO TRANSFER OR DID TRANSFER SOMETHING FOR
NOTHING.  PP. 50-51. 

(C)  THE DECISION IN THIS CASE IS NOT RESTED ON THE FACT THAT THE
SALE WAS MADE BEFORE MATURITY OR THAT THE SELLER MAY HAVE RECEIVED
VALID CONSIDERATION FOR A TOTAL RELEASE OF HIS CLAIM BECAUSE THE
DEBTOR'S PAYMENT WAS MADE BEFORE MATURITY.  P. 51. 

(D)  HELVERING V. AMERICAN DENTAL CO., 318 U.S. 322, DISTINGUISHED. 
P. 51. 

3.  THE SITUATION IN EACH TRANSACTION IS A FACTUAL ONE, TURNING UPON
WHETHER THE TRANSACTION IS IN FACT A TRANSFER OF SOMETHING FOR THE BEST
PRICE AVAILABLE OR IS A TRANSFER OR RELEASE OF ONLY A PART OF A CLAIM
FOR CASH AND OF THE BALANCE "FOR NOTHING."  PP. 51-52. 

COMMISSIONER OF INTERNAL REVENUE V. JACOBSON. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

FROM A DECISION OF THE TAX COURT REDETERMINING DEFICIENCIES IN INCOME
TAX OF THE RESPONDENT, 6 T.C. 1048, THE COMMISSIONER AND THE RESPONDENT
BOTH PETITIONED FOR REVIEW.  THE COURT OF APPEALS DECIDED AGAINST THE
COMMISSIONER ON BOTH PETITIONS.  164 F.2D 594.  THIS COURT GRANTED
CERTIORARI.  333 U.S. 866.  REVERSED, P. 52. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS DECISION APPLIES THE FEDERAL INCOME TAX TO GAINS DERIVED BY A
DEBTOR FROM HIS PURCHASE OF HIS OWN OBLIGATIONS AT A DISCOUNT AND HIS
CONSEQUENT CONTROL OVER THEIR DISCHARGE.  IT PRESENTS THE SPECIFIC
QUESTION WHETHER A SOLVENT NATURAL PERSON, IN STRAITENED FINANCIAL
CIRCUMSTANCES, MUST INCLUDE IN HIS GROSS INCOME FOR FEDERAL INCOME TAX
PURPOSES THE DIFFERENCE BETWEEN (1) THE FACE AMOUNT OF HIS PERSONAL
INDEBTEDNESS AS THE MAKER OF SECURED BONDS, ORIGINALLY ISSUED BY HIM AT
FACE VALUE FOR CASH, AND (2) A LESSER AMOUNT PAID BY HIM FOR THEIR
PURCHASE.  THE DEBTOR'S OBLIGATIONS WERE NOT UNPAID BALANCES OF
PURCHASE PRICES WHICH COULD BE READ-JUSTED BY THE DISCHARGE OF THE
OBLIGATIONS.  THE PROCEEDS OF THE OBLIGATIONS WERE NOT TRACED INTO
IDENTIFIABLE LOSSES OFFSETTING THE DEBTOR'S REALIZED GAINS FROM THE
DISCHARGE OF THESE OBLIGATIONS.  EACH SELLER KNEW THAT THE BONDS HE
SOLD WERE BEING BOUGHT BY OR FOR THE MAKER OF THEM.  IN EACH SALE THE
BONDHOLDER SOUGHT TO MINIMIZE HIS PROBABLE LOSS BY GETTING AS MUCH AS
POSSIBLE, DIRECTLY OR INDIRECTLY, FROM THE MAKER OF THE BONDS AS THE
ONE AVAILABLE PURCHASER OF THEM.  THE MAKER OF THE BONDS, AT THE SAME
TIME, SOUGHT TO REDUCE HIS OBLIGATIONS AS MUCH AS POSSIBLE BY BUYING
THE BONDS AS CHEAPLY AS HE COULD.  WHILE EACH SELLER THUS KNEW THAT HE
WAS RECEIVING FROM THE MAKER OF THE BONDS LESS THAN THEIR FACE AMOUNT,
THERE IS NO FINDING THAT ANY SELLER INTENDED TO TRANSFER OR RELEASE
SOMETHING FOR NOTHING OR TO MAKE A GIFT OF ANY PART OF HIS CLAIM, AS
DISTINGUISHED FROM MAKING A SALE AND ASSIGNMENT OF HIS WHOLE CLAIM FOR
THE HIGHEST AVAILABLE PRICE.  THE MAKER THUS REALIZED A GAIN FROM EACH
PURCHASE AND THE COMMISSIONER OF INTERNAL REVENUE FOUND CORRECTLY THAT,
FOR FEDERAL INCOME TAX PURPOSES, THE MAKER MUST INCLUDE THAT GAIN IN
HIS GROSS INCOME FOR THE TAX YEAR IN WHICH HE MADE THE PURCHASE. 

THE RESPONDENT, LEWIS F. JACOBSON, IN 1938, 1939 AND 1940 RESIDED,
PRACTICED LAW AND OWNED OR CONTROLLED SUBSTANTIAL PROPERTY INTERESTS IN
CHICAGO, ILLINOIS.  IN 1943 THE PETITIONER, COMMISSIONER OF INTERNAL
REVENUE, FOUND DEFICIENCIES IN THE INCOME TAXES PAID BY THE RESPONDENT
FOR EACH OF THOSE YEARS.  THOSE DEFICIENCIES TOTALED $3,967.97, OF
WHICH ABOUT $2,500 ARE NOW BEFORE US.  THIS CASE AROSE FROM THE
COMMISSIONER'S ADDITION TO THE REPORTED GROSS INCOME OF THE RESPONDENT
OF THE DIFFERENCES BETWEEN (1) THE PRINCIPAL FACE AMOUNTS OF CERTAIN
LEASEHOLD BONDS EXECUTED BY THE RESPONDENT AND (2) THE LESSER AMOUNTS
PAID BY HIM FOR THEIR PURCHASE.  SUCH PURCHASES WERE MADE BY OR FOR HIM
SUBSTANTIALLY AS FOLLOWS:  (CHART OMITTED) 

UPON THE RESPONDENT'S PETITION, THE TAX COURT REVIEWED THE
COMMISSIONER'S FINDINGS AND - 

"HELD THAT, AS TO THE BONDS ACQUIRED BY PETITIONER (JACOBSON, THE
RESPONDENT HERE) THROUGH DIRECT NEGOTIATIONS WITH THE BONDHOLDERS, HE
IS NOT TAXABLE ON THE GAIN THEREFROM UNDER THE DOCTRINE OF HELVERING V.
AMERICAN DENTAL CO., 318 U.S. 322; HELD, FURTHER, THAT PETITIONER IS
TAXABLE ON THE GAIN REALIZED IN THE PURCHASES FROM BONDHOLDERS THROUGH
THE SECRETARY OF THE BONDHOLDERS' COMMITTEE AND THE SECURITY DEALERS,
UNDER THE DOCTRINE OF THE SUPREME COURT IN UNITED STATES V. KIRBY
LUMBER CO., 284 U.S. 1, HE BEING AT ALL TIMES SOLVENT."  6 T.C. 1048. 

SIX OF THE SIXTEEN JUDGES DISSENTED AND FIVE OF THOSE SIX VOTED TO
UPHOLD THE COMMISSIONER COMPLETELY, ON THE GROUND THAT NONE OF THE
TRANSACTIONS WERE GRATUITOUS.  6 T.C. 1048, 1057-1059.  THE
COMMISSIONER PETITIONED THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT TO
REVIEW THAT PART OF THE JUDGMENT WHICH WAS UNFAVORABLE TO HIM.  THE
RESPONDENT DID THE SAME AS TO THE REMAINDER OF THE JUDGMENT.  THAT
COURT DECIDED AGAINST THE COMMISSIONER ON BOTH PETITIONS.  IT HELD
THAT, BECAUSE THE RESPECTIVE SELLERS KNEW THAT THE BONDS THEY SOLD WERE
BEING BOUGHT BY OR FOR THE RESPONDENT, AS THE MAKER OF THEM, ANY EXCESS
OF THE FACE VALUES OF THE BONDS OVER THEIR SALES PRICES SHOULD BE
TREATED AS GIFTS TO THE RESPONDENT AND AS EXEMPT FROM INCOME TAX.  164
F.2D 594.  DUE TO THE IMPORTANCE OF THE ISSUES IN THE UNSETTLED FIELD
OF THE TAXABILITY OF GAINS DERIVED BY A DEBTOR FROM HIS DISCHARGE OF
HIS OWN OBLIGATIONS AT A DISCOUNT, WE GRANTED CERTIORARI IN BOTH
CASES.  333 U.S. 866.  WE HAVE HEARD AND DECIDED THEM TOGETHER. 

THE FURTHER MATERIAL FACTS, AS FOUND BY THE TAX COURT OR AS SHOWN BY
UNDISPUTED EVIDENCE, ARE AS FOLLOWS: 

BY PURCHASES MADE IN 1922 AND 1923 THE RESPONDENT ACQUIRED A 99-YEAR
LEASE, RUNNING FROM MAY 1, 1914, TOGETHER WITH A TWO-STORY STORE,
OFFICE AND APARTMENT BUILDING ON THE LEASED PREMISES IN CHICAGO.  ON OR
ABOUT MAY 1, 1925, HE BORROWED $90,000 FROM A NEARBY BANK AND, TOGETHER
WITH HIS WIFE, EXECUTED IN RETURN 200 BONDS SECURED BY A TRUST DEED
MORTGAGING TO THAT BANK THE LEASEHOLD AND THE IMPROVEMENTS THEREON. 
THE BONDS BORE INTEREST AT 6 1/2 PER CENT PER ANNUM AND WERE FOR THE
TOTAL PRINCIPAL AMOUNT OF $90,000, WITH $2,500 MATURING SEMIANNUALLY UP
TO AND INCLUDING NOVEMBER 1, 1931.  THE BALANCE OF THE BONDS, TOTALLING
$57,500, WERE TO MATURE MAY 1, 1932.  THE ORIGINAL PROCEEDS WERE USED
BY THE RESPONDENT TO RETIRE THE EXISTING ENCUMBRANCE, OF AN UNDISCLOSED
AMOUNT, ON THE PROPERTY, PAY FOR A $16,250 ADDITION MADE BY HIM TO THE
BUILDING ON THE LEASEHOLD AND PAY THE NECESSARY BROKERAGE COMMISSION OF
APPROXIMATELY 10 PER CENT OF THE LOAN, PLUS THE COST OF PRINTING THE
BONDS AND OTHER EXPENSES IN CONNECTION WITH THE LOAN.  A REMAINING
"SMALL SURPLUS" WAS PAID TO THE RESPONDENT.  IN 1925 THE RESPONDENT,
FOR THE PURPOSES OF COMPUTING DEPRECIATION, ALLOCATED $76,580.56 TO THE
IMPROVEMENTS, INCLUDING THE NEW ADDITION, AND $40,000 TO THE LEASEHOLD,
OUT OF THEIR TOTAL COST TO HIM OF $116,580.56. 

THE BONDS DUE ON OR BEFORE NOVEMBER 1, 1931, WERE PAID AT OR ABOUT
THEIR MATURITIES.  THE DEBTOR HAS NEVER BEEN IN DEFAULT ON ANY INTEREST
PAYMENT.  HOWEVER, AFTER THE TRUSTEE BANK CLOSED ON JUNE 8, 1931, A
COMMITTEE WAS FORMED TO REPRESENT THE HOLDERS OF THIS ISSUE OF BONDS. 
MAY 1, 1932, THE RESPONDENT SECURED FROM THE COMMITTEE AND INDIVIDUAL
BONDHOLDERS A FIVE-YEAR EXTENSION OF THE MATURITY ON ALL OF THE BONDS
AND A REDUCTION IN THE INTEREST RATE FROM 6 1/2 TO 5 PER CENT. DURING
THIS EXTENSION THE RESPONDENT ISSUED HIS CHECKS IN THE NAMES OF THE
RESPECTIVE BONDHOLDERS TO COVER INTEREST DUE THEM.  THE CHECKS WERE
DELIVERED BY THE SECRETARY OF THE BONDHOLDERS' COMMITTEE, THE
RESPONDENT KEPT HIMSELF FULLY INFORMED AS TO THE IDENTITY AND LOCATION
OF THE RESPECTIVE BONDHOLDERS AND THEY, IN TURN, FREQUENTLY VISITED HIM
TO LEARN ABOUT HIS FINANCIAL CONDITION AND THAT OF THE TRUSTEED
PROPERTY.  IN 1937 HE PROCURED A FURTHER EXTENSION OF THE MATURITY OF
THE BONDS TO MAY 1, 1942, AND, IN THAT CONNECTION, PAID 10 PER CENT ON
THE PRINCIPAL OF EACH BOND, LEAVING A TOTAL OUTSTANDING BALANCE OF
$51,750 PAYABLE ON THESE BONDS. 

THE TAX COURT FOUND THAT IN 1938 THE FAIR MARKET VALUE OF THE
LEASEHOLD AND THE IMPROVEMENTS THEREON WAS $80,000 AND THAT IN 1939 AND
1940 IT WAS THE SAME, LESS ACCRUED DEPRECIATION.  THE RESPONDENT
TESTIFIED THAT HE VALUED IT AT CONSIDERABLY LESS, EVEN AS LOW AS TWICE
THE AMOUNT OF ITS GROSS INCOME, OR ABOUT $32,000.  THE GROSS AND NET
INCOME FROM THE TRUSTEED PROPERTY, AFTER DEDUCTION OF EXPENSES,
DEPRECIATION AND ALSO THE INTEREST ON THE BONDS, WAS: 

YEAR            GROSS INCOME  NET INCOME 

1938.......... $16,550.00   $1,233.95 

1939..........     16,520.75    1,107.11 

1940..........     15,578.50    1,719.41 

THE RESPONDENT RECEIVED FROM HIS LAW PRACTICE AND OTHER SOURCES THE
FOLLOWING ADDITIONAL GROSS INCOME:  1938, $38,390.85; 1939, $35,644.78;
AND 1940, $35,279.59.  THE TAX COURT SAID THAT:  "ON THE STRENGTH OF
THE SHOWING OF PETITIONER'S ASSETS AND LIABILITIES, WE FIND PETITIONER
WAS SOLVENT DURING EACH OF THE TAXABLE YEARS 1938, 1939, AND 1940."  6
T.C. AT P. 1053.  THE COURT OF APPEALS SAID:  "THE TAX COURT FOUND THAT
THE TAXPAYER WAS SOLVENT DURING EACH OF THE TAXABLE YEARS 1938, 1939
AND 1940, AND WE ACCEPT THE FINDING, ALTHOUGH A PERUSAL OF THE RECORD
MAKES IT QUITE APPARENT THAT HE WAS IN STRAITENED FINANCIAL
CIRCUMSTANCES."  164 F.2D AT P. 596. 

IN HIS PETITION TO THE TAX COURT THE RESPONDENT STATED, AND IT HAS
NOT BEEN DISPUTED, THAT THE VALUE OF THE LEASEHOLD AND BUILDING HAD
SHARPLY DEPRECIATED SINCE HIS ACQUISITION OF THEM.  THE NEIGHBORHOOD
HAD CHANGED, STORES WERE VACANT OR PAID LESS THAN HALF OF THEIR
PREVIOUS RENTS, FROM 1932 TO 1938 THE VALUE OF THE PROPERTY WAS
SUBSTANTIALLY LESS THAN ITS COST TO HIM, CONDITIONS WERE GETTING WORSE
AND HE FELT CERTAIN THAT HE WOULD SUSTAIN A LARGE LOSS IN CONNECTION
WITH THE PROPERTY.  FN1 

THE TAX COURT'S FINDINGS DESCRIBE EACH BOND SALE THAT IS MATERIAL. 
SOME WERE TO THE RESPONDENT PERSONALLY AND SOME TO HIS LAW PARTNER,
ACTING ON HIS BEHALF.  THE REST WERE MADE INDIRECTLY TO THE RESPONDENT
THROUGH BROKERS OR THROUGH THE BONDHOLDERS' COMMITTEE.  THE TAX COURT
SAID THAT EACH SALE THAT WAS MADE THROUGH A BROKER OR THE COMMITTEE WAS
CLOSELY AKIN TO AN OPEN MARKET TRANSACTION.  IT MADE NO FINDING THAT
ANY SELLER INTENDED TO TRANSFER OR RELEASE SOMETHING FOR NOTHING.  IT
REFERRED TO ALL OF THE RESPONDENT'S ACQUISITIONS OF BONDS AS
PURCHASES.  APPARENTLY THE BONDS WERE PAYABLE TO BEARER AND THE TAX
COURT REFERRED TO THEM AS NEGOTIABLE BONDS.  EACH SELLER MADE A
COMPLETE TRANSFER TO THE RESPONDENT OF ALL THE SELLER'S RIGHTS TO OR
UNDER THE BONDS.  EACH SELLER THUS DETERMINED THE AMOUNT OF HIS OWN
LOSS ON HIS INVESTMENT.  EACH KNEW THAT THE MAKER OF THE BOND WOULD
ACQUIRE OR SECURE CONTROL OVER IT AND WOULD THUS BE ENABLED TO REDUCE
HIS LIABILITIES BY ITS FACE AMOUNT.  EXCEPT FOR THE 10 PER CENT PAID ON
EACH BOND IN 1937, THERE IS NO EVIDENCE THAT ANY BONDHOLDER AT ANY TIME
RECEIVED ANY PARTIAL PAYMENT ON ANY BOND OR CONSENTED TO A REDUCTION OF
THE INDEBTEDNESS EVIDENCED BY THE BOND.  THERE IS NO SUGGESTION THAT
ANY OF THE RESPONDENT'S PAYMENTS MADE IN 1938, 1939 OR 1940 WERE MADE
SPECIFICALLY IN PARTIAL REDUCTION OF THE RESPONDENT'S OBLIGATION AS
EVIDENCED BY A BOND OR THAT ANY BONDHOLDER SPECIFICALLY DISCHARGED HIM
FROM ANY PART OF THE BALANCE OF THAT OBLIGATION.  ON THE OTHER HAND, IT
DOES APPEAR THAT EACH OF SUCH PAYMENTS WAS MADE IN CONSIDERATION OF THE
TRANSFER TO THE RESPONDENT OF TITLE TO THE ENTIRE BOND.  EACH BOND WAS
DELIVERED TO THE RESPONDENT EVIDENCING HIS OBLIGATION FOR ITS FULL
ORIGINAL FACE AMOUNT, LESS ONLY THE 10 PER CENT PAYMENT MADE, ON
ACCOUNT, IN 1937.  AT THE TIME OF THE TRIAL, THE RESPONDENT APPARENTLY
STILL HELD THE PURCHASED BONDS "INTACT."  THE COURT OF APPEALS
REPUDIATED ANY DISTINCTION MADE BY THE TAX COURT FOR PRESENT PURPOSES
BETWEEN THE DIRECT AND INDIRECT SALES TO THE RESPONDENT.  THE COURT OF
APPEALS BASED ITS DECISION ON EACH SELLER'S KNOWLEDGE THAT HE WAS
TRANSFERRING HIS BOND TO THE MAKER OF IT.  THUS FAR WE AGREE.  THE
COURT OF APPEALS, HOWEVER, WITHOUT ANY FINDING OF INTENT BY THE
RESPECTIVE SELLERS TO TRANSFER OR RELEASE SOMETHING FOR NOTHING, AS
DISTINGUISHED FROM AN INTENT TO GET THE HIGHEST AVAILABLE PRICE FOR
THEIR ENTIRE CLAIMS, TREATED THE RESPONDENT'S GAIN FROM EACH PURCHASE
AS EXEMPT FROM THE TAXATION IMPOSED BY SEC. 22(A) OF THE REVENUE ACT OF
1938  FN2  AND OF THE INTERNAL REVENUE CODE, BECAUSE THAT COURT FELT
ITSELF OBLIGED BY PRECEDENT TO CLASSIFY EACH SUCH GAIN AS A "GIFT"
UNDER SEC. 22(B)(3) OF THAT ACT  FN3  AND CODE.  WE HOLD, HOWEVER, THAT
THOSE SECTIONS DO NOT, IN THE LIGHT OF THE DECISIONS OF THIS COURT,
PERMIT THAT RESULT. 

THE FIRST TEST OF THE TAXABILITY OF SUCH GAINS RELATES TO THEIR
INCLUSION WITHIN THE GROSS INCOME OF THE TAXPAYER UNDER SEC. 22(A),
WITHOUT REFERENCE TO THE SPECIFIC EXCLUSIONS MADE FROM IT BY SEC.
22(B).  THE OTHER TEST CONSISTS OF THE APPLICATION TO SUCH GAINS OF ANY
OF THOSE SPECIFIC EXCLUSIONS.  WE HOLD THAT THESE GAINS COME WITHIN
SEC. 22(A) BUT NOT WITHIN ANY OF THE EXCLUSIONS FROM GROSS INCOME
STATED IN SEC. 22(B). 

THE RESPONDENT REALIZED AN IMMEDIATE FINANCIAL GAIN FROM HIS PURCHASE
OF THESE BONDS AT A DISCOUNT.  BY THAT ACQUISITION HE WAS ENABLED, AT
WILL, TO CANCEL THEM AND THUS DISCHARGE HIMSELF FROM LIABILITY TO PAY
THEM.  WHILE THE RECORD INDICATES THAT HE HELD THEM "INTACT,"
APPARENTLY WITHOUT CREDITING RELEASED INDEBTEDNESS ON THEM OR OTHERWISE
PHYSICALLY CANCELLING THEM IN WHOLE OR IN PART (EXCEPT FOR THE 10 PER
CENT PAYMENTS MADE BY HIM ON EACH BOND IN 1937), HIS POSSESSION OF THEM
AND CONTROL OVER THEM IS NOT DISPUTED AND THE PETITIONER HAS PROPERLY
TREATED THEIR ACQUISITION AS CONSTITUTING A REDUCTION OF THE
RESPONDENT'S DEBTS TO THE EXTENT OF THEIR FACE AMOUNT. AT THE TIME OF
THEIR PURCHASE THE RESPONDENT WAS UNCONDITIONALLY AND PRIMARILY BOUND
TO PAY THEIR FACE AMOUNTS ON MAY 1, 1942, WITH INTEREST.  ALTHOUGH IN
STRAITENED FINANCIAL CIRCUMSTANCES HE WAS SOLVENT, BOTH BEFORE AND
AFTER HIS ACQUISITION OF THE BONDS, AND THE BONDS APPARENTLY WERE
COLLECTIBLE FROM HIM IN FULL THROUGH APPROPRIATE ENFORCEMENT
PROCEEDINGS.  HIS ACQUISITION, AND CONSEQUENT CONTROL OVER THE
DISCHARGE OF THESE BONDS, THEREFORE, IMPROVED HIS NET WORTH BY THE
DIFFERENCE BETWEEN THEIR FACE AMOUNT AND THE PRICE HE PAID FOR THEM. 
IT ALSO RELIEVED HIM OF THE SEMIANNUAL INTEREST PAYMENTS ON THEM OF 5
PER CENT PER ANNUM.  HIS ACQUISITION OF THEM LIKEWISE REDUCED THE FACE
AMOUNT OF THE LIEN HELD BY OTHERS UPON HIS LEASEHOLD PROPERTY.  IN THE
FIRST INSTANCE HE HAD RECEIVED THE FULL FACE AMOUNT IN CASH FOR THESE
BONDS SO THAT HIS REPURCHASE OF THEM FOR 50 PER CENT, OR LESS, OF THAT
AMOUNT REFLECTED A SUBSTANTIAL BENEFIT WHICH HE HAD DERIVED FROM THE
USE OF THAT BORROWED MONEY.  FN4  THESE WERE NOT PURCHASE MONEY BONDS. 
THE GAINS FROM THEIR CANCELLATION WERE NOT AKIN TO REDUCTIONS IN
BALANCES DUE ON THE PRICES OF PREVIOUSLY ACQUIRED PROPERTY.  THE
RESPECTIVE SELLERS OF THE BONDS BORE NO RELATION TO THE RESPONDENT
OTHER THAN THAT OF CREDITORS.  THE GAINS DERIVED BY THE RESPONDENT
THROUGH THESE PURCHASES WERE COMPARABLE TO THOSE HE WOULD HAVE REALIZED
IF HE HAD PURCHASED, AT THE SAME DISCOUNT, LIKE BONDS ISSUED BY A THIRD
PARTY AND HAD RESOLD THEM AT FULL FACE VALUE OR HAD TURNED THEM IN AT
FULL VALUE AS A CREDIT UPON SOME OTHER INDEBTEDNESS OF THE RESPONDENT. 
HIS GAINS WERE COMPARABLE IN THEIR NATURE TO THOSE WHICH HE WOULD HAVE
REALIZED IF A THIRD PARTY, PURSUANT TO A CONTRACT, HAD PAID OFF HIS
INDEBTEDNESS ON THESE BONDS FOR HIM TO THE EXTENT OF THE DISCOUNT AT
WHICH HE PURCHASED THEM.  FN5  THE NATURE OF THE GAIN DERIVED BY A
DEBTOR FROM HIS PURCHASE OF HIS OWN OBLIGATIONS AT A DISCOUNT IS THE
SAME WHETHER THE DEBTOR IS A CORPORATION OR A NATURAL PERSON.  THAT
SUCH A GAIN COMES WITHIN THE MEANING OF GROSS INCOME AS USED IN FEDERAL
INCOME TAX LAWS WAS LONG AGO RECOGNIZED BY THE TREASURY DEPARTMENT'S
REGULATIONS AND BY THIS COURT IN THE LEADING CASES IN THIS FIELD.  FN6
UNITED STATES V. KIRBY LUMBER CO., 284 U.S. 1; HELVERING V. AMERICAN
CHICLE CO., 291 U.S. 426.  SIMILAR PROVISIONS APPEARED IN THE
REGULATIONS IN EFFECT IN 1938-1940.  FN7 

IF SEC. 22(A) STOOD ALONE, WITHOUT THE EXCLUSIONS STATED IN SEC.
22(B), THE GAIN REALIZED BY THE RESPONDENT IN THIS CASE UNQUESTIONABLY
WOULD CONSTITUTE GROSS INCOME FOR INCOME TAX PURPOSES.  THE PROVISIONS
OF SEC. 22(B) AND THE DECISIONS OF THIS COURT DO NOT CHANGE THAT
RESULT.  ON THE CONTRARY, THEY CONFIRM IT. 

A STRIKING DEMONSTRATION OF THE MEANING GIVEN BY CONGRESS TO SEC.
22(A) APPEARS IN ITS AMENDMENTS TO SEC. 22(B) OF THE INTERNAL REVENUE
CODE BY THE REVENUE ACT OF 1939, C. 247, 53 STAT. 862, APPROVED JUNE
29, 1939.  FN8  THESE AMENDMENTS THEN APPLIED ONLY TO TAXABLE YEARS
BEGINNING AFTER DECEMBER 31, 1938, AND ONLY TO DISCHARGES OF
INDEBTEDNESS OCCURRING ON OR AFTER JUNE 29, 1939.  THE VALUE OF THESE
AMENDMENTS FOR THE PURPOSES OF THE INSTANT CASE IS NOT SO MUCH IN THE
EXCLUSIONS WHICH THEY PRESCRIBE, AS IN THE CLEAR LIGHT WHICH THEIR OWN
LIMITATIONS SHED UPON SECS. 22(A) AND 22(B) TO THE EXTENT THAT THOSE

UNLESS THOSE SECTIONS AS THEY STOOD IN 1938 MEANT THAT THE GAINS
DERIVED BY A DEBTOR CORPORATION FROM ITS PURCHASES OF ITS OWN
OBLIGATIONS AT A DISCOUNT RESULTED IN GROSS INCOME UNDER SEC. 22(A),
THERE WAS NO NEED FOR THESE 1939 AMENDMENTS.  FURTHERMORE, AS THE
STATUS OF NATURAL PERSONS AND CORPORATIONS IS NOT DIFFERENTIATED IN
SEC. 22(A), THE NEW AMENDMENTS MAKE IT EQUALLY CLEAR THAT, INASMUCH AS
THEY RELIEVE ONLY CERTAIN CORPORATIONS FROM THE TAXABILITY OF GAINS
DERIVED FROM THEIR PURCHASES OF THEIR OWN OBLIGATIONS AT A DISCOUNT, IT
MUST BE THAT SIMILAR GAINS DERIVED BY NATURAL PERSONS ALSO REMAIN
TAXABLE UNDER SEC. 22(A).  THE STRENGTH OF THIS REFLECTION OF THE
AMENDMENTS UPON THE UNAMENDED SECTIONS IS EMPHASIZED BY THEIR TEMPORARY
CHARACTER.  THE AMENDMENTS EXPRESSLY PROVIDE THAT THEY SHALL NOT APPLY
TO A TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1942.  THIS INDICATES
THAT, FOR ITS PERMANENT PROGRAM, CONGRESS REGARDED SUCH GAINS AS
PROPERLY TAXABLE AND IT INDICATES THAT THE AMENDMENTS WERE INTENDED TO
AUTHORIZE TEMPORARY CHANGES IN POLICY AND WERE NOT CLARIFICATIONS OF
EXISTING OR CONTINUING TAX POLICIES.  WHILE THE TIME LIMIT ORIGINALLY
PRESCRIBED HAS BEEN SUBSEQUENTLY EXTENDED, THE EXTENSIONS HAVE BEEN
MADE BY SEPARATE ACTS, EACH FOR A PERIOD OF ONE TO THREE YEARS.  FN9
THIS REPEATED EMPHASIS UPON THEIR TEMPORARY CHARACTER INCREASES THE
CONTRAST WHICH THEY MAKE WITH THE PERMANENT POLICY OF CONGRESS AS TO
THE GENERAL TAXABILITY OF THIS KIND OF GAINS UNDER SEC. 22(A). 

THESE AMENDMENTS DESCRIBE GAINS CORRESPONDING ALMOST PRECISELY WITH
THOSE DERIVED BY THE RESPONDENT FROM HIS TRANSACTIONS IN THE INSTANT
CASE BUT THE AMENDMENTS APPLY ONLY TO CORPORATE GAINS.  THEY THUS
INDICATE THAT SUCH GAINS WERE RECOGNIZED AS NOT HAVING BEEN EXCLUDED
FROM GROSS INCOME BY SEC. 22(B)(3) OR BY ANY OTHER SECTION.  IF THEY
HAD BEEN SO EXCLUDED THERE WOULD HAVE BEEN NO NEED FOR THE NEW
AMENDMENTS TO EXCLUDE THOSE WHICH THEY DID, EVEN TEMPORARILY. 
FURTHERMORE, THOSE GAINS ARE NOT EXCLUDED FROM GROSS INCOME FOR ALL
PURPOSES OF THE INCOME TAX LAWS.  SECTION 22(B)(9) EXCLUDES THEM ONLY
FROM THE ORDINARY INCOME TAXES FOR THE TAXABLE YEAR IN WHICH THE
TAXPAYING CORPORATION PURCHASES ITS OWN SECURITIES AT A DISCOUNT.  FN10
FURTHERMORE, THE EXCLUSION UNDER SEC. 22(B)(9), AS DISTINGUISHED FROM
OTHER EXCLUSIONS UNDER SEC. 22(B), IS AVAILABLE ONLY UPON THE EXPRESS
CONDITION THAT THE TAXPAYER MAKES AND FILES AT THE TIME OF FILING THE
RETURN ITS CONSENT TO THE REGULATIONS  FN11  PRESCRIBED UNDER SEC.
113(B)(3)  FN12  THEN IN EFFECT.  THAT SECTION AND SUCH REGULATIONS
REQUIRE THAT, WHERE ANY AMOUNT IS EXCLUDED BY A CORPORATION FROM ITS
GROSS INCOME UNDER SEC. 22(B)(9) ON ACCOUNT OF ITS DISCHARGE OF ITS OWN
INDEBTEDNESS, THE WHOLE OR A PART OF SUCH AMOUNT SHALL BE APPLIED TO
THE REDUCTION OF THE BASIS OF PROPERTY HELD BY THE TAXPAYER DURING ANY
PORTION OF THE TAXABLE YEAR IN WHICH SUCH DISCHARGE OCCURS.  THE AMOUNT
TO BE SO APPLIED AND THE PROPERTIES TO WHICH THE REDUCTION SHALL BE
ALLOCATED ARE TO BE DETERMINED BY REGULATIONS APPROVED BY THE SECRETARY
OF THE TREASURY.  THIS MEANS THAT SUCH A GAIN, INSTEAD OF BEING
COMPLETELY EXCLUDED AS EXEMPT FROM TAXATION, IS POSTPONED, FOR INCOME
TAX PURPOSES, UNTIL A LATER DATE WHEN THE PROPERTY IS DISPOSED OF IN A
WAY WHICH WILL PERMIT ANOTHER FORM OF ASCERTAINMENT OF THE TAXPAYER'S
GAIN OR LOSS IN ITS DISPOSITION.  FN13 THESE PROVISIONS THEREFORE
DEMONSTRATE THAT CONGRESS, AT LEAST SINCE 1939, HAS PRESCRIBED THAT, IN
ORDER FOR A CORPORATE TAXPAYER TO EXCLUDE FROM ITS GROSS INCOME UNDER
SEC. 22(A) CERTAIN GAINS ATTRIBUTABLE TO THE DISCHARGE WITHIN THE
TAXABLE YEAR OF THE TAXPAYER'S INDEBTEDNESS EVIDENCED BY BONDS, THE
TAXPAYER MUST CONSENT TO THE SUBSEQUENT USE OF THOSE GAINS IN REDUCING
THE BASIS OF PROPERTY HELD BY THE TAXPAYER DURING ANY PORTION OF THE
TAXABLE YEAR IN WHICH SUCH DISCHARGE OCCURRED.  A CORPORATE TAXPAYER
WITH GAINS MEETING THESE SPECIFICATIONS BUT NOT FILING THE REQUIRED
CONSENT WOULD BE OBLIGED TO INCLUDE THOSE GAINS IN ITS GROSS INCOME,
UNLESS ADDITIONAL FACTS BROUGHT THEM UNDER SOME OTHER EXEMPTION.  A
FORTIORI, A NATURAL PERSON, SUCH AS THE RESPONDENT IN THE INSTANT CASE,
WHO HAS DERIVED GAINS PRECISELY WITHIN THESE SPECIFICATIONS BUT WHO, AS
A NATURAL PERSON, IS INELIGIBLE TO FILE THE REQUIRED CONSENT IS OBLIGED
TO INCLUDE THOSE GAINS IN HIS GROSS INCOME UNDER SEC. 22(A).  IT
REMAINS, THEREFORE, TO CONSIDER WHETHER THERE ARE FACTS IN THIS CASE
WHICH BRING THIS RESPONDENT'S TRANSACTIONS WITHIN ANY EXCLUSION OTHER
THAN THAT STATED IN SEC. 22(B)(9).  FN14 

THE ONLY PROVISION FOR THE EXCLUSION OF THESE TYPES OF GAINS FROM THE
RESPONDENT'S GROSS INCOME THAT IS PRESENTED FOR OUR CONSIDERATION IS
THE GENERAL EXEMPTION OF GIFTS FROM TAXATION PRESCRIBED BY SEC.
22(B)(3).  FN15  THIS WAS APPLIED BY THIS COURT IN FAVOR OF A TAXPAYER
IN HELVERING V. AMERICAN DENTAL CO., 318 U.S. 322, AS WELL AS BY THE
COURT BELOW IN THE INSTANT CASE.  BOTH THE GENERAL PROVISION FOR
TAXATION OF INCOME AND THIS PROVISION FOR THE EXCLUSION OF GIFTS FROM
GROSS INCOME, FOR INCOME TAX PURPOSES, HAVE BEEN IN THE FEDERAL INCOME
TAX ACTS IN SUBSTANTIALLY THEIR PRESENT FORM SINCE THE REVENUE ACT OF
1916.  FN16  THE CONTRAST BETWEEN THE PROVISIONS IS STRIKING.  THE
INCOME TAXED IS DEXCRIBED IN SWEEPING TERMS AND SHOULD BE BROADLY
CONSTRUED IN ACCORDANCE WITH AN OBVIOUS PURPOSE TO TAX INCOME
COMPREHENSIVELY.  THE EXEMPTIONS, ON THE OTHER HAND, ARE SPECIFICALLY
STATED AND SHOULD BE CONSTRUED WITH RESTRAINT IN THE LIGHT OF THE SAME
POLICY.  CONGRESS COULD HAVE EXCLUDED FROM THE GROSS INCOME OF ALL
TAXPAYERS THE GAINS DERIVED BY DEBTORS EITHER FROM THEIR ACQUISITIONS
OF THEIR OWN OBLIGATIONS AT A DISCOUNT AND THEIR CONSEQUENT CONTROL
OVER THEM, OR FROM THEIR RESPECTIVE RELEASES FROM ALL OR PART OF SUCH
OBLIGATIONS BY THEIR RESPECTIVE CREDITORS UPON THE DEBTOR'S PAYMENT TO
THE CREDITOR OF SOMETHING LESS THAN THE FULL AMOUNT OF THE DEBT. 
CONGRESS, ESPECIALLY SINCE THE REVENUE ACT OF 1938, HAS BEEN COGNIZANT
OF THIS ISSUE AND OF ITS POWER TO MEET IT AS STATED, BUT IT HAS CHOSEN
TO EXTEND SUCH RELIEF ONLY ON THE ABOVE DESCRIBED RESTRICTED AND
TEMPORARY BASIS AND ONLY IN THE CASE OF CORPORATIONS.  IN ITS TREATMENT
OF THE ISSUE CONGRESS ALSO HAS REQUIRED THE CORPORATE TAXPAYER'S
CONSENT TO AN ALTERNATIVE PLAN FOR A REDUCTION OF THE CORPORATION'S
BASIS OF PROPERTY VALUES TO BE USED IN LATER DETERMINATIONS OF ITS
GAINS OR LOSSES.  THIS SPECIAL TREATMENT IS FAR DIFFERENT FROM THE
TOTAL EXCLUSION OF A GAIN RESULTING FROM AN EXEMPT GIFT.  IF SUCH GAINS
WERE ALREADY EXEMPTED AS GIFTS UNDER SEC. 22(B)(3), AS REPRESENTING
SOMETHING TRANSFERRED TO THE DEBTOR FOR NOTHING, THERE WOULD HAVE BEEN
NO NEED FOR SEC. 22(B)(9).  THE CONCLUSION TO BE DRAWN IS THAT SUCH
TRANSFERS AS ARE DESCRIBED IN SEC. 22(B)(9) COULD NOT, WITHOUT MORE,
QUALIFY AS EXEMPT GIFTS UNDER SEC. 22(B)(3).  THE SAME MAY BE SAID OF
THE ACQUISITION, BY A NATURAL PERSON, OF HIS OWN OBLIGATIONS AS
DEBTOR.  THE FACTS IN THE INSTANT CASE PRESENT A SITUATION QUITE
SIMILAR TO ONE CONTEMPLATED BY SEC. 22(B)(9) EXCEPT THAT THE TAXPAYER
HERE IS A NATURAL PERSON.  THIS EMPHASIZES THE TAXABILITY OF THE GAINS
BEFORE US. 

IN THE INSTANT CASE THE RELATION BETWEEN THE BONDHOLDER AND THE
RESPONDENT MAY BE ASSUMED IN EACH TRANSACTION TO HAVE BEEN ONE IN WHICH
THE ULTIMATE PARTIES WERE KNOWN TO EACH OTHER TO BE SUCH.  THERE WAS NO
SUGGESTION IN THE EVIDENCE OR THE FINDINGS THAT ANY BONDHOLDER WAS
ACTING FROM ANY INTEREST OTHER THAN HIS OWN.  EACH TRANSACTION WAS A
SALE.  THE SELLER SOUGHT TO GET AS HIGH A PRICE AS HE COULD FOR THE
BOND AND THE BUYER SOUGHT TO PAY AS LOW A PRICE AS HE COULD FOR THE
SAME BOND.  IF THE TRANSACTION HAD BEEN COMPLETELY ON THE OPEN MARKET
THROUGH A STOCK EXCHANGE, THE CONDUCT AND INTENT OF EACH PARTY COULD
HAVE BEEN THE SAME AND THERE WOULD HAVE BEEN LITTLE, IF ANY, BASIS FOR
ANY CLAIM THAT THE RESPONDENT'S GAIN WAS NOT TAXABLE INCOME.  THE MERE
FACT THAT THE SELLER KNEW THAT HE WAS SELLING TO THE MAKER OF THE BOND
AS HIS ONLY AVAILABLE MARKET DID NOT CHANGE THE SALE INTO A GIFT.  IN
THE ABSENCE OF PROOF TO THE CONTRARY, THE INTENT OF THE SELLER MAY BE
ASSUMED TO HAVE BEEN TO GET ALL HE COULD FOR HIS ENTIRE CLAIM. 
ALTHOUGH THE SALES PRICE WAS LESS THAN THE FACE OF THE BOND AND LESS
THAN THE ORIGINAL ISSUING PRICE OF THE BOND, THERE WAS NOTHING TO
INDICATE THAT THE SELLER WAS NOT GETTING ALL THAT HE COULD FOR ALL THAT
HE HAD.  THERE IS NOTHING IN THE EVIDENCE OR FINDINGS TO INDICATE THAT
HE INTENDED TO TRANSFER OR DID TRANSFER SOMETHING FOR NOTHING.  THE
FORM OF THE TRANSACTION EMPHASIZED THIS RELATIONSHIP.  THE SELLER
ASSIGNED THE ENTIRE BOND TO HIS PURCHASER.  THE SELLER DID NOT FIRST
RELEASE THE MAKER FROM A PART OF THE MAKER'S OBLIGATION AND, HAVING
MADE THE MAKER A GIFT OF THAT RELEASE, THEN SELL HIM THE BALANCE OF THE
BOND OR VICE VERSA.  IF THE SELLER ACTUALLY HAD INTENDED TO GIVE THE
MAKER SOME GIFT THE NATURAL REFLECTION OF THAT GIFT WOULD HAVE BEEN A
CREDIT ON THE FACE OF THE BOND OR AT LEAST SOME RECORD OR TESTIMONY
EVIDENCING THE RELEASE.  THIS IS NOT SAYING THAT THE FORM OF THE
TRANSACTION IS CONCLUSIVE.  ASSUMING THAT THE EXTENSION OF THE MATURITY
OF THE BONDS IN THE INSTANT CASE WAS BINDING ON THE CREDITOR, WE DO NOT
REST THIS CASE UPON THE FACT THAT THE SALE WAS MADE BEFORE MATURITY OR
THAT THE SELLER MAY HAVE RECEIVED VALID CONSIDERATION FOR A TOTAL
RELEASE OF HIS CLAIM BECAUSE THE DEBTOR'S PAYMENT WAS MADE BEFORE
MATURITY.  IT IS QUITE POSSIBLE THAT A BONDHOLDER MIGHT MAKE A GIFT OF
AN ENTIRE BOND TO ANYONE, INCLUDING THE MAKER OF IT.  THE FACTS AND
FINDINGS IN THIS CASE DO NOT ESTABLISH ANY SUCH INTENT OF THE SELLER TO
MAKE A GIFT IN CONTRADICTION OF THE NATURAL IMPLICATIONS ARISING FROM
THE SALES AND ASSIGNMENTS WHICH HE MADE.  IT IS CONCEIVABLE, ALTHOUGH
HARDLY LIKELY, THAT A BONDHOLDER, IN THE ORDINARY COURSE OF BUSINESS
AND WITHOUT ANY EXPRESS RELEASE OF HIS DEBTOR, MIGHT HAVE SOLD PART OF
HIS CLAIMS ON THE BONDS HE HELD AT THE FULL FACE VALUE OF THOSE PARTS
AND THEN HAVE MADE A GIFT OF THE REST OF HIS CLAIMS ON THOSE BONDS TO
THE SAME DEBTOR "FOR NOTHING."  IT IS THAT KIND OF EXTRAORDINARY
TRANSACTION THAT THE RESPONDENT ASKS US, AS A MATTER OF LAW, TO READ
INTO THE SIMPLE SALES WHICH ACTUALLY TOOK PLACE AND FROM WHICH HE
DERIVED FINANCIAL GAINS.  WE ARE UNABLE TO DO SO ON THE FINDINGS BEFORE
US.  CF. BOGARDUS V. COMMISSIONER, 302 U.S. 34. 

THE SITUATION IN EACH TRANSACTION IS A FACTUAL ONE.  IT TURNS UPON
WHETHER THE TRANSACTION IS IN FACT A TRANSFER OF SOMETHING FOR THE BEST
PRICE AVAILABLE OR IS A TRANSFER OR RELEASE OF ONLY A PART OF A CLAIM
FOR CASH AND OF THE BALANCE "FOR NOTHING."  THE LATTER SITUATION IS
MORE LIKELY TO ARISE IN CONNECTION WITH A RELEASE OF AN OPEN ACCOUNT
FOR RENT OR FOR INTEREST, AS WAS FOUND TO HAVE OCCURRED IN HELVERING V.
AMERICAN DENTAL CO., SUPRA, THAN IN THE SALE OF OUTSTANDING SECURITIES,
EITHER OF A CORPORATION AS DESCRIBED IN SEC. 22(B)(9), OR OF A NATURAL
PERSON AS PRESENTED IN THIS CASE.  FOR THESE REASONS WE HOLD THAT THE
COMMISSIONER WAS JUSTIFIED IN FINDING A TAXABLE GAIN, RATHER THAN AN
EXEMPT GIFT, IN EACH OF THE TRANSACTIONSBEFORE US.  THE JUDGMENT OF THE
COURT OF APPEALS ACCORDINGLY IS REVERSED AND THE CAUSE IS REMANDED FOR
FURTHER ACTION IN ACCORDANCE WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  IN HIS PETITION TO THE TAX COURT, THE RESPONDENT, IN DESCRIBING
THE SALE OF BONDS TO HIM AT A DISCOUNT IN 1939, SAID: 

"IT WAS SELF INTEREST AND GOOD BUSINESS JUDGMENT EXERCISED BY ALL
PRUDENT PERSONS TO TAKE CASH SETTLEMENTS, WHEN OTHERWISE GREATER LOSSES
MIGHT BE INCURRED.  I HAVE DONE THAT VERY THING MYSELF, AND HAVE
ADVISED CLIENTS TO DO SO IN SIMILAR CIRCUMSTANCES.  MOST REAL ESTATE
BONDS IN CHICAGO WERE SELLING FROM 5C TO 25C ON THE DOLLAR IN 1932 TO
1940." 

IN THE INSTANT CASE THE RESPONDENT WAS FOUND TO HAVE BEEN SOLVENT
BEFORE, AS WELL AS AFTER, HIS REALIZATION OF THE GAINS IN QUESTION. 
THE PAYMENT OF THE BONDS PURCHASED BY HIM WAS SECURED BY THE MORTGAGE
OF HIS LEASEHOLD PROPERTY WHICH PROPERTY HAD A FAIR MARKET VALUE
SUBSTANTIALLY IN EXCESS OF THE FACE AMOUNT OF THE BONDS.  THE RECORD
FAILS TO ESTABLISH ANY SUFFICIENT BASIS FOR A CLAIM THAT THE RESPONDENT
HAD SUFFERED LOSSES WHICH, FOR TAX PURPOSES, OFFSET HIS GAINS FROM HIS
PURCHASE OF THE BONDS.  LITTLE OF THE $90,000 ORIGINALLY RECEIVED BY
HIM FOR THE BONDS WAS USED TO PURCHASE PROPERTY.  THERE IS NO FINDING
OR SUBSTANTIAL EVIDENCE SHOWING SPECIFICALLY HOW THOSE FUNDS WERE
INVESTED.  EVEN IF THEY ARE TRACED, IN PART, INTO THE ADDITION MADE TO
THE BUILDING ON THE LEASEHOLD PREMISES AND INTO THE DISCHARGE OF THE
THEN EXISTING ENCUMBRANCE ON THOSE PREMISES, THE TOTAL SO USED IS NOT
SHOWN AND THE SHRINKAGE IN THE VALUE OF THOSE INVESTMENTS IS NOT
CLEARLY ASCERTAINED IN THE TAXABLE YEARS IN QUESTION.  THE RATIO OF THE
LOSS IN VALUE OF THE LEASEHOLD PROPERTY INDICATED BY THE TAX COURT
FINDINGS IS ABOUT 32 PER CENT OF ITS COST IN 1925 BUT THIS LOSS IS
MERELY BASED UPON ESTIMATES.  THE RESPONDENT CLAIMS A LARGER SHRINKAGE
BUT THERE IS NOT A SUFFICIENT ASCERTAINMENT OF IT TO PERMIT
CONSIDERATION OF ITS USE AS AN OFFSET TO THE RESPONDENT'S GAINS IN
1938, 1939 OR 1940.  SEE 2 MERTENS, LAW OF FEDERAL INCOME TAXATION,
SEC. 11.20 AND N. 99(1942). 

FN2  "SEC.  22.  GROSS INCOME. 

"(A)  GENERAL DEFINITION.  - 'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICE, OF WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER.  ..."  52 STAT. 457. 

THIS WAS RE-ENACTED AS SEC. 22(A), I.R.C., 53 STAT. 9, AND AMENDED IN
A MANNER NOT MATERIAL HERE IN 53 STAT. 574-575, 26 U.S.C. (1940 ED.) 
SEC.  22(A).  THE REVENUE ACT OF 1938 APPLIED TO THE RESPONDENT'S
INCOME IN 1938 AND THE INTERNAL REVENUE CODE TO THAT IN 1939 AND 1940. 

FN3 "SEC.  22.  GROSS INCOME. 

     .         .         .     .         . 

"(B)  EXCLUSIONS FROM GROSS INCOME.  - THE FOLLOWING ITEMS SHALL NOT
BE INCLUDED IN GROSS INCOME AND SHALL BE EXEMPT FROM TAXATION UNDER
THIS TITLE: 

     .  .         .         .         . 

"(3)  GIFTS, BEQUESTS, AND DEVISES.  - THE VALUE OF PROPERTY ACQUIRED
BY GIFT, BEQUEST, DEVISE, OR INHERITANCE (BUT THE INCOME FROM SUCH
PROPERTY SHALL BE INCLUDED IN GROSS INCOME);" 

     .         .         .         .         . 52 STAT. 458. 

THIS WAS RE-ENACTED AS SEC. 22(B)(3), I.R.C., 53 STAT. 10, 26 U.S.C.
(1940 ED.)  SEC.  22(B)(3), WITHOUT MATERIAL CHANGE. 

FN4  SEE NOTE 1, SUPRA, SHOWING THE VARIED USES TO WHICH THE
RESPONDENT APPLIED THESE PROCEEDS AND SHOWING THAT IT IS NOT
PRACTICABLE IN THIS CASE TO DETERMINE HIS LOSSES FROM HIS RESULTING
INVESTMENTS, AND MUCH LESS TO OFFSET THEM AGAINST HIS GAINS NOW AT
ISSUE.  HIS TAX BENEFITS FROM THOSE LOSSES ARE THUS POSTPONED UNTIL
SOME SUCH OCCASION AS THE SALE OF THE PROPERTIES REFLECTING THEM MAKES
IT POSSIBLE TO ASCERTAIN THE LOSSES CLEARLY. 

FN5  SUCH DISCHARGES OF A TAXPAYER'S DEBTS BY PAYMENTS MADE FOR HIS
BENEFIT ARE REALIZABLE INCOME TO HIM.  IN DOUGLAS V. WILLCUTS, 296 U.S.
1, 9, THIS COURT SAID: 

"THE QUESTION IS ONE OF STATUTORY CONSTRUCTION.  WE THINK THAT THE
DEFINITIONS OF GROSS INCOME (REVENUE ACTS, 1926, SEC. 213; 1928, SEC.
22) ARE BROAD ENOUGH TO COVER INCOME OF THAT DESCRIPTION.  THEY ARE TO
BE CONSIDERED IN THE LIGHT OF THE EVIDENT INTENT OF THE CONGRESS 'TO
USE ITS POWER TO THE FULL EXTENT.'  IRWIN V. GAVIT, 268 U.S. 161;
HELVERING V. STOCKHOLMS BANK, 293 U.S. 84, 89.  WE HAVE HELD THAT
INCOME WAS RECEIVED BY A TAXPAYER, WHEN, PURSUANT TO A CONTRACT, A DEBT
OR OTHER OBLIGATION WAS DISCHARGED BY ANOTHER FOR HIS BENEFIT.  THE
TRANSACTION WAS REGARDED AS BEING THE SAME IN SUBSTANCE AS IF THE MONEY
HAD BEEN PAID TO THE TAXPAYER AND HE HAD TRANSMITTED IT TO HIS
CREDITOR.  OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716; UNITED
STATES V. BOSTON & MAINE RAILROAD, 279 U.S. 732." 

FN6  "...  BY THE REVENUE ACT OF (NOVEMBER 23,) 1921, C. 136, SEC.
213(A) GROSS INCOME INCLUDES 'GAINS OR PROFITS AND INCOME DERIVED FROM
ANY SOURCE WHATEVER,' AND BY THE TREASURY REGULATIONS AUTHORIZED BY
SEC. 1303, THAT HAVE BEEN IN FORCE THROUGH REPEATED REENACTMENTS, 'IF
THE CORPORATION PURCHASES AND RETIRES ANY OF SUCH BONDS AT A PRICE LESS
THAN THE ISSUING PRICE OR FACE VALUE, THE EXCESS OF THE ISSUING PRICE
OR FACE VALUE OVER THE PURCHASE PRICE IS GAIN OR INCOME FOR THE TAXABLE
YEAR.'  ARTICLE 545(1)(C) OF REGULATIONS 62, UNDER REVENUE ACT OF
1921.  SEE ARTICLE 544(1)(C) OF REGULATIONS 45, UNDER REVENUE ACT OF
1918; ARTICLE 545(1)(C) OF REGULATIONS 65, UNDER REVENUE ACT OF 1924;
ARTICLE 545(1)(C) OF REGULATIONS 69, UNDER REVENUE ACT OF 1926; ARTICLE
68(1)(C) OF REGULATIONS 74, UNDER REVENUE ACT OF 1928.  WE SEE NO
REASON WHY THE REGULATIONS SHOULD NOT BE ACCEPTED AS A CORRECT
STATEMENT OF THE LAW. 

"...  THE DEFENDANT IN ERROR HAS REALIZED WITHIN THE YEAR AN
ACCESSION TO INCOME, IF WE TAKE WORDS IN THEIR PLAIN POPULAR MEANING,
AS THEY SHOULD BE TAKEN HERE."  UNITED STATES V. KIRBY LUMBER CO., 284
U.S. 1, 2-3. 

FN7  "ART.  22(A)-14.  CANCELLATION OF INDEBTEDNESS.  - (A)  IN
GENERAL.  - THE CANCELLATION OF INDEBTEDNESS, IN WHOLE OR IN PART, MAY
RESULT IN THE REALIZATION OF INCOME.  IF, FOR EXAMPLE, AN INDIVIDUAL
PERFORMS SERVICES FOR A CREDITOR, WHO IN CONSIDERATION THEREOF CANCELS
THE DEBT, INCOME IN THE AMOUNT OF THE DEBT IS REALIZED BY THE DEBTOR AS
COMPENSATION FOR HIS SERVICES.  A TAXPAYER REALIZES INCOME BY THE
PAYMENT OR PURCHASE OF HIS OBLIGATIONS AT LESS THAN THEIR FACE VALUE. 
... *75P 

"ART. 22(A)-18.  SALE AND PURCHASE BY CORPORATION OF ITS BONDS.  -
(1)(A)  IF BONDS ARE ISSUED BY A CORPORATION AT THEIR FACE VALUE, THE
CORPORATION REALIZES NO GAIN OR LOSS.  (B)  IF THE CORPORATION
PURCHASES ANY OF SUCH BONDS AT A PRICE IN EXCESS OF THE ISSUING PRICE
OR FACE VALUE, THE EXCESS OF THE PURCHASE PRICE OVER THE ISSUING PRICE
OR FACE VALUE IS A DEDUCTIBLE EXPENSE FOR THE TAXABLE YEAR.  (C)  IF,
HOWEVER, THE CORPORATION PURCHASES ANY OF SUCH BONDS AT A PRICE LESS
THAN THE ISSUING PRICE OR FACE VALUE, THE EXCESS OF THE ISSUING PRICE
OR FACE VALUE OVER THE PURCHASE PRICE IS GAIN OR INCOME FOR THE TAXABLE
YEAR."  TREASURY REGULATIONS 101, PROMULGATED UNDER THE REVENUE ACT OF
1938. 

IN TREASURY REGULATIONS 103, PROMULGATED UNDER THE INTERNAL REVENUE
CODE, SECS. 19.22(A)-14 AND 19.22(A)-18 WERE IDENTICAL WITH THE ABOVE. 
EVEN TODAY THEY ARE THE SAME IN TREASURY REGULATIONS 111, PROMULGATED
UNDER THE INTERNAL REVENUE CODE, AS SECS. 29.22(A)-13 AND 29.22(A)-17. 

FN8  THESE AMENDMENTS ARE CONTAINED IN SEC. 215 OF THE INTERNAL
REVENUE ACT OF 1939, C. 247, 53 STAT. 862, 875-876, 26 U.S.C. (1940
ED.)  SECS.  22(B)(9), 113(B)(3).  THEY ADDED TO THE INTERNAL REVENUE
CODE SEC. 22(B)(9) AND SEC. 113(B)(3), BOTH RELATING TO THE DISCHARGE
OF INDEBTEDNESS.  A CROSS REFERENCE IS MADE TO THE LATTER IN THE
FORMER.  SUCH SEC. 215, IN ITS ENTIRETY, IS AS FOLLOWS: 

"SEC. 215.  DISCHARGE OF INDEBTEDNESS. 

"(A)  INCOME FROM DISCHARGE OF INDEBTEDNESS.  - SECTION 22(B) OF THE
INTERNAL REVENUE CODE (RELATING TO EXCLUSIONS FROM GROSS INCOME) IS
AMENDED BY ADDING AT THE END THEREOF THE FOLLOWING NEW PARAGRAPH: 

"(9)  INCOME FROM DISCHARGE OF INDEBTEDNESS.  - IN THE CASE OF A
CORPORATION, THE AMOUNT OF ANY INCOME OF THE TAXPAYER ATTRIBUTABLE TO
THE DISCHARGE, WITHIN THE TAXABLE YEAR, OF ANY INDEBTEDNESS OF THE
TAXPAYER OR FOR WHICH THE TAXPAYER IS LIABLE EVIDENCED BY A SECURITY
(AS HEREINAFTER IN THIS PARAGRAPH DEFINED) IF - 

(A)  IT IS ESTABLISHED TO THE SATISFACTION OF THE COMMISSIONER, OR 

(B)  IT IS CERTIFIED TO THE COMMISSIONER BY ANY FEDERAL AGENCY
AUTHORIZED TO MAKE LOANS ON BEHALF OF THE UNITED STATES TO SUCH
CORPORATION OR BY ANY FEDERAL AGENCY AUTHORIZED TO EXERCISE REGULATORY
POWER OVER SUCH CORPORATION, 

THAT AT THE TIME OF SUCH DISCHARGE THE TAXPAYER WAS IN AN UNSOUND
FINANCIAL CONDITION, AND IF THE TAXPAYER MAKES AND FILES AT THE TIME OF
FILING THE RETURN, IN SUCH MANNER AS THE COMMISSIONER, WITH THE
APPROVAL OF THE SECRETARY, BY REGULATIONS PRESCRIBES, ITS CONSENT TO
THE REGULATIONS PRESCRIBED UNDER SECTION 113(B)(3) THEN IN EFFECT.  IN
SUCH CASE THE AMOUNT OF ANY INCOME OF THE TAXPAYER ATTRIBUTABLE TO ANY
UNAMORTIZED PREMIUM (COMPUTED AS OF THE FIRST DAY OF THE TAXABLE YEAR
IN WHICH SUCH DISCHARGE OCCURRED) WITH RESPECT TO SUCH INDEBTEDNESS
SHALL NOT BE INCLUDED IN GROSS INCOME AND THE AMOUNT OF THE DEDUCTION
ATTRIBUTABLE TO ANY UNAMORTIZED DISCOUNT (COMPUTED AS OF THE FIRST DAY
OF THE TAXABLE YEAR IN WHICH SUCH DISCHARGE OCCURRED) WITH RESPECT TO
SUCH INDEBTEDNESS SHALL NOT BE ALLOWED AS A DEDUCTION.  AS USED IN THIS
PARAGRAPH THE TERM 'SECURITY' MEANS ANY BOND, DEBENTURE, NOTE, OR
CERTIFICATE, OR OTHER EVIDENCE OF INDEBTEDNESS, ISSUED BY ANY
CORPORATION, IN EXISTENCE ON JUNE 1, 1939.  THIS PARAGRAPH SHALL NOT
APPLY TO ANY DISCHARGE OCCURRING BEFORE THE DATE OF THE ENACTMENT OF
THE REVENUE ACT OF 1939, OR IN A TAXABLE YEAR BEGINNING AFTER DECEMBER
31, 1942. 

"(B)  BASIS REDUCED.  - SECTION 113(B) OF THE INTERNAL REVENUE CODE
(RELATING TO THE ADJUSTED BASIS OF PROPERTY) IS AMENDED BY ADDING AT
THE END THEREOF THE FOLLOWING NEW PARAGRAPH: 

"(3)  DISCHARGE OF INDEBTEDNESS.  - WHERE IN THE CASE OF A
CORPORATION ANY AMOUNT IS EXCLUDED FROM GROSS INCOME UNDER SECTION
22(B)(9) ON ACCOUNT OF THE DISCHARGE OF INDEBTEDNESS THE WHOLE OR A
PART OF THE AMOUNT SO EXCLUDED FROM GROSS INCOME SHALL BE APPLIED IN
REDUCTION OF THE BASIS OF ANY PROPERTY HELD (WHETHER BEFORE OR AFTER
THE TIME OF THE DISCHARGE) BY THE TAXPAYER DURING ANY PORTION OF THE
TAXABLE YEAR IN WHICH SUCH DISCHARGE OCCURRED.  THE AMOUNT TO BE SO
APPLIED (NOT IN EXCESS OF THE AMOUNT SO EXCLUDED FROM GROSS INCOME,
REDUCED BY THE AMOUNT OF ANY DEDUCTION DISALLOWED UNDER SECTION
22(B)(9)) AND THE PARTICULAR PROPERTIES TO WHICH THE REDUCTION SHALL BE
ALLOCATED, SHALL BE DETERMINED UNDER REGULATIONS (PRESCRIBED BY THE
COMMISSIONER WITH THE APPROVAL OF THE SECRETARY) IN EFFECT AT THE TIME
OF THE FILING OF THE CONSENT BY THE TAXPAYER REFERRED TO IN SECTION
22(B)(9).  THE REDUCTION SHALL BE MADE AS OF THE FIRST DAY OF THE
TAXABLE YEAR IN WHICH THE DISCHARGE OCCURRED EXCEPT IN THE CASE OF
PROPERTY NOT HELD BY THE TAXPAYER ON SUCH FIRST DAY, IN WHICH CASE IT
SHALL TAKE EFFECT AS OF THE TIME THE HOLDING OF THE TAXPAYER BEGAN. 

"(C)  TAXABLE YEARS TO WHICH APPLICABLE.  - THE AMENDMENTS MADE BY
THIS SECTION SHALL BE APPLICABLE TO TAXABLE YEARS BEGINNING AFTER
DECEMBER 31, 1938."  53 STAT. 875-876. 

SEE ALSO, TREASURY REGULATIONS 103, PROMULGATED UNDER THE INTERNAL
REVENUE CODE: SEC. 19.22(B)(9)-1, INCOME FROM DISCHARGE OF
INDEBTEDNESS; SEC. 19.22(B)(9)-2, MAKING AND FILING OF CONSENT; SEC.
19.113(B)(3)-1, ADJUSTED BASIS:  DISCHARGE OF CORPORATE INDEBTEDNESS:
GENERAL RULE; SEC. 19.113(B)(3)-2, ADJUSTED BASIS:  DISCHARGE OF
CORPORATE INDEBTEDNESS:  SPECIAL CASES. 

FN9  WHILE SEC. 22(B)(9) ORIGINALLY DID NOT APPLY TO ANY DISCHARGE
OCCURRING IN A TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1942, 53 STAT.
875, THIS DATE WAS CHANGED TO DECEMBER 31, 1945, 56 STAT. 811; DECEMBER
31, 1946, 59 STAT. 574; DECEMBER 31, 1947, 60 STAT. 749; AND DECEMBER
31, 1949, 61 STAT. 179. 

FN10  THE EXCLUSIONS MADE BY SEC. 22(B) APPLY TO THE TAXES IMPOSED BY
THE INCOME TAX CHAPTER OF THE INTERNAL REVENUE CODE.  THESE INCLUDE THE
ORDINARY INCOME TAXES BUT NOT THE ADDITIONAL INCOME TAXES SUCH AS THOSE
IMPOSED ON PERSONAL HOLDING COMPANIES OR THE EXCESS-PROFITS TAXES. 

FN11  TREASURY REGULATIONS 103, SUPRA, SECS. 19.113(B)(3)-1 AND 2
COVER THE SUBJECT.  THEY PROVIDE A COMPREHENSIVE PROCEDURE FOR
DECREASING THE COST OR OTHER BASIS OF A TAXPAYING CORPORATION'S
PROPERTIES AS A CONDITION OF ITS TAKING ADVANTAGE OF SEC. 22(B)(9). 
THIS PROCEDURE APPLIES NOT ONLY IN "THE CASE OF INDEBTEDNESS INCURRED
TO PURCHASE SPECIFIC PROPERTY" BUT ALSO IN "THE CASE OF SPECIFIC
PROPERTY (OTHER THAN INVENTORY OR NOTES OR ACCOUNTS RECEIVABLE) AGAINST
WHICH, AT THE TIME OF THE DISCHARGE OF THE INDEBTEDNESS, THERE IS A
LIEN (OTHER THAN A LIEN SECURING INDEBTEDNESS INCURRED TO PURCHASE SUCH
PROPERTY) ...."  IT EVEN PROVIDES THAT IF ANY EXCESS OF AMOUNT EXCLUDED
FROM GROSS INCOME UNDER SEC. 22(B)(9) EXCEEDS THOSE TWO ADJUSTMENTS,
THE COST OR OTHER BASIS OF ALL THE PROPERTY OF THE DEBTOR OTHER THAN
INVENTORY AND NOTES AND ACCOUNTS RECEIVABLE SHALL BE REDUCED
PROPORTIONATELY AND, FINALLY, THE BALANCE, IF ANY, OF THE AMOUNT
EXCLUDED FROM THE DEBTOR'S GROSS INCOME IS APPLIED TO THE REDUCTION OF
THE COST OR OTHER BASIS OF THE DEBTOR'S INVENTORY OR NOTES OR ACCOUNTS
RECEIVABLE.  IT THUS OFFERS AFFIRMATIVELY A BROAD ALTERNATIVE PLAN FOR
REACHING THE CORPORATE DEBTOR'S GAINS FROM ITS DISCHARGE OF ITS
INDEBTEDNESS AT A DISCOUNT.    FN12  SEE NOTE 8, SUPRA. 

FN13  SUBSEQUENT AMENDMENTS HAVE ALTERED THESE PROVISIONS BUT HAVE
NOT CHANGED THEIR GENERAL EFFECT NOR THEIR REFLECTION UPON THE MEANING
OF SEC. 22(A).  FOR THE EXTENSION OF THE TEMPORARY NATURE OF THE
PROVISIONS, SEE NOTE 9, SUPRA.  THE REQUIREMENT OF A SPECIALLY
CERTIFIED "UNSOUND FINANCIAL CONDITION" FOR A CORPORATE TAXPAYER IN
ORDER TO MAKE SEC. 22(B)(9) APPLICABLE WAS ELIMINATED BY THE REVENUE
ACT OF 1942.  THAT ACT ALSO ELIMINATED THE LIMITATION TO SECURITIES IN
EXISTENCE ON JUNE 1, 1939.  56 STAT. 811. 

IN MAKING THESE TEMPORARY PROVISIONS CONGRESS HAD IN MIND ESPECIALLY
THE CONDITIONS PRESENTED BY RAILROADS AND OTHER CORPORATIONS THEN
SEEKING TO LIQUIDATE HEAVY INDEBTEDNESS.  THE COMMITTEES REPORTING THE
BILLS FOR PASSAGE EMPHASIZED THE LIMITATIONS THAT WERE IMPOSED BY THESE
AMENDMENTS UPON CORPORATIONS SEEKING TO EXCLUDE FROM TAXABLE INCOME THE
GAINS DERIVED FROM THEIR ACQUISITION OF THEIR OWN SECURITIES AT A
DISCOUNT.  H.R. REP. NO. 855, 76TH CONG., 1ST SESS. 5, 23-25(1939);
SEN. REP. NO. 648, 76TH CONG., 1ST SESS. 2-3, 5(1939).  OBVIOUSLY IT
WAS EXPECTED THAT THESE PROVISIONS WOULD DECREASE THE EXISTING BURDENS
OF INCOME TAXATION.  IT CERTAINLY WAS NOT INTENDED TO IMPOSE A BURDEN
OF POSTPONED TAXABILITY UPON GAINS WHICH OTHERWISE WOULD HAVE BEEN
COMPLETELY EXEMPTED FROM TAXATION BY SEC. 22(B)(3). 

FN14  SEVERAL PROVISIONS HAVE EXTENDED COMPARABLE RELIEF TO OTHER
TAXPAYERS.  NONE OF THEM APPLY TO THE RESPONDENT.  THEY EMPHASIZE,
HOWEVER, THE UNDERSTANDING OF CONGRESS THAT, WITHOUT SPECIAL PROVISION
FOR THEIR EXCLUSION, THE GAINS OF A TAXPAYER FROM THE DISCHARGE OF HIS
INDEBTEDNESS AT A DISCOUNT ARE REQUIRED BY SEC. 22(A) TO BE INCLUDED IN
HIS GROSS INCOME.  THEY RECOGNIZE THAT THE MERE EXCLUSION OF "GIFTS"
UNDER SEC. 22(B)(3) IS NOT ENOUGH TO COVER FACTUAL SITUATIONS LIKE
THOSE PRESENTED IN SEC. 22(B)(9) OR IN THE OTHER RELIEF PROVISIONS
ABOVE MENTIONED. 

AMONG THESE RELIEF PROVISIONS ARE THE FOLLOWING: 

EXCLUSION, FROM EXCESS PROFITS CREDIT, OF INCOME DERIVED FROM THE
RETIREMENT OR DISCHARGE BY THE TAXPAYER OF THE TAXPAYER'S OWN
OBLIGATIONS IF THEY HAVE BEEN OUTSTANDING MORE THAN 18 MONTHS. 
INTERNAL REVENUE CODE, SECS. 711(A)(1)(C), 711(A)(2)(E), AND SEC.
711(B)(1)(C) ADDED BY THE SECOND REVENUE ACT OF 1940, C. 757, 54 STAT.
976-978, REPEALED BY THE REVENUE ACT OF 1945, C. 453, 59 STAT. 568. 

EXCLUSION, FROM GROSS INCOME, FOR INCOME TAX PURPOSES, OF THE INCOME
OF RAILROAD CORPORATIONS ATTRIBUTABLE TO THEIR DISCHARGE OF THEIR
INDEBTEDNESS TO THE EXTENT REALIZED FROM A MODIFICATION OR CANCELLATION
OF INDEBTEDNESS, PURSUANT TO AN ORDER OF COURT.  INTERNAL REVENUE CODE,
SEC. 22(B)(10), ADDED BY THE REVENUE ACT OF 1942, C. 619, 56 STAT. 812,
APPLICABLE TO TAXABLE YEARS BEGINNING AFTER DECEMBER 31, 1939, BUT NOT
APPLICABLE TO ANY DISCHARGE IN A TAXABLE YEAR BEGINNING AFTER DECEMBER
31, 1945; THIS LATTER DATE EXTENDED TO DECEMBER 31, 1946, 59 STAT. 574;
DECEMBER 31, 1947, 60 STAT. 749; AND DECEMBER 31, 1949, 61 STAT. 179. 

FN15  SEE NOTE 3, SUPRA. 

FN16  "SEC.  2.  (A)  THAT, SUBJECT ONLY TO SUCH EXEMPTIONS AND
DEDUCTIONS AS ARE HEREINAFTER ALLOWED, THE NET INCOME OF A TAXABLE
PERSON SHALL INCLUDE GAINS, PROFITS, AND INCOME DERIVED FROM SALARIES,
WAGES, OR COMPENSATION FOR PERSONAL SERVICE OF WHATEVER KIND AND IN
WHATEVER FORM PAID, OR FROM PROFESSIONS, VOCATIONS, BUSINESSES, TRADE,
COMMERCE, OR SALES, OR DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL,
GROWING OUT OF THE OWNERSHIP OR USE OF OR INTEREST IN REAL OR PERSONAL
PROPERTY, ALSO FROM INTEREST, RENT, DIVIDENDS, SECURITIES, OR THE
TRANSACTION OF ANY BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR
PROFITS AND INCOME DERIVED FROM ANY SOURCE WHATEVER: ... 

     .         .         .         .     . 

"SEC. 4.  THE FOLLOWING INCOME SHALL BE EXEMPT FROM THE PROVISIONS OF
THIS TITLE (TITLE I. - INCOME TAX): 

"THE PROCEEDS OF LIFE INSURANCE POLICIES PAID TO INDIVIDUAL
BENEFICIARIES UPON THE DEATH OF THE INSURED; THE AMOUNT RECEIVED BY THE
INSURED, AS A RETURN OF PREMIUM OR PREMIUMS PAID BY HIM UNDER LIFE
INSURANCE, ENDOWMENT, OR ANNUITY CONTRACTS, EITHER DURING THE TERM OR
AT THE MATURITY OF THE TERM MENTIONED IN THE CONTRACT OR UPON THE
SURRENDER OF THE CONTRACT; THE VALUE OF PROPERTY ACQUIRED BY GIFT,
BEQUEST, DEVISE, OR DESCENT (BUT THE INCOME FROM SUCH PROPERTY SHALL BE
INCLUDED AS INCOME); INTEREST UPON THE OBLIGATIONS OF A STATE OR ANY
POLITICAL SUBDIVISION THEREOF OR UPON THE OBLIGATIONS OF THE UNITED
STATES OR ITS POSSESSIONS OR SECURITIES ISSUED UNDER THE PROVISIONS OF
THE FEDERAL FARM LOAN ACT OF JULY SEVENTEENTH, NINETEEN HUNDRED AND
SIXTEEN; THE COMPENSATION OF THE PRESENT PRESIDENT OF THE UNITED STATES
DURING THE TERM FOR WHICH HE HAS BEEN ELECTED, AND THE JUDGES OF THE
SUPREME AND INFERIOR COURTS OF THE UNITED STATES NOW IN OFFICE, AND THE
COMPENSATION OF ALL OFFICERS AND EMPLOYEES OF A STATE, OR ANY POLITICAL
SUBDIVISION THEREOF, EXCEPT WHEN SUCH COMPENSATION IS PAID BY THE
UNITED STATES GOVERNMENT."  REVENUE ACT OF 1916, C. 463, 39 STAT. 756,
757, 758-759.  SEE ALSO, AN ACT TO REDUCE TARIFF DUTIES AND TO PROVIDE
REVENUE FOR THE GOVERNMENT, AND FOR OTHER PURPOSES.  (OCTOBER 3,
1913.)  38 STAT. 114, 167, SEC. II B. 

MR. JUSTICE RUTLEDGE, ALTHOUGH JOINING IN THE COURT'S JUDGMENT AND
OPINION, IS OF THE VIEW THAT THE RESULT IS ESSENTIALLY IN CONFLICT WITH
THAT REACHED IN HELVERING V. AMERICAN DENTAL CO., 318 U.S. 322. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE DOUGLAS JOINS, DISSENTING. 

AS DETAILED IN HELVERING V. AMERICAN DENTAL COMPANY, 318 U.S. 322,
THE PROBLEMS OF THE TAX RESULTS TO THE DEBTOR OF THE RELEASE OF
INDEBTEDNESS HAVE BEEN DIFFICULT.  THAT OPINION SHOWS THAT BOTH
CONGRESS AND INTERNAL REVENUE REGULATIONS HAVE TAKEN VARYING VIEWS AS
TO WHETHER A TAXPAYER SHOULD PAY AN INCOME TAX ON SUCH BALANCE SHEET
IMPROVEMENTS.  FN1 

WE HELD IN THE AMERICAN DENTAL CASE IN 1943 THAT THE "RECEIPT OF
FINANCIAL ADVANTAGES GRATUITOUSLY" WAS A GIFT UNDER INT. REV. CODE SEC.
22.  CONGRESS HAS MADE NO CHANGE IN THE LAW SINCE THAT TIME, NOR HAS IT
BEEN REQUESTED TO DO SO.  FOR THE REASONS DISCUSSED AT LENGTH IN THAT
CASE, WE ARE OF THE OPINION THAT THE JUDGMENT OF THE COURT OF APPEALS
SHOULD BE AFFIRMED. 

FN1  HELVERING V. AMERICAN DENTAL CO., SUPRA, P. 326, NOTE 5; P. 328,
NOTE 9, PARTICULARLY TAX FREE RAILROAD ADJUSTMENTS UNDER C. XV, SEC.
735, 53 STAT. 1140. 
..END :























CORAY V. SOUTHERN PACIFIC CO., 335 U.S. 520 


NO. 54.  ARGUED DECEMBER 6-7, 1948.  - DECIDED JANUARY 3, 1949.  - UTAH
, 185 P.2D 963, REVERSED. 


IN A SUIT UNDER THE FEDERAL SAFETY APPLIANCE AND FEDERAL EMPLOYERS'
LIABILITY ACTS TO RECOVER DAMAGES FOR THE DEATH OF A RAILROAD EMPLOYEE,
THE UNDISPUTED EVIDENCE ESTABLISHED THAT THE EMPLOYEE WAS KILLED WHEN A
MOTOR-DRIVEN TRACK CAR ON WHICH HE WAS FOLLOWING A TRAIN CRASHED INTO
THE TRAIN WHEN IT STOPPED SUDDENLY AND UNEXPECTEDLY BECAUSE OF A
DEFECTIVE AIR-BRAKE APPLIANCE.  HELD: 

1.  HIS ADMINISTRATOR WAS ENTITLED TO RECOVER IF THIS DEFECTIVE
APPLIANCE WAS THE SOLE OR A CONTRIBUTORY PROXIMATE CAUSE OF THE
EMPLOYEE'S DEATH.  PP. 521-523. 

2.  ON THE EVIDENCE IN THIS CASE, THE JURY COULD HAVE FOUND THAT
DECEDENT'S DEATH RESULTED IN WHOLE OR IN PART FROM THE DEFECTIVE
APPLIANCE; AND IT WAS ERROR TO DIRECT A VERDICT FOR THE RAILROAD.  PP.
523-524. 

CORAY, ANCILLARY ADMINISTRATOR, V. SOUTHERN PACIFIC CO. 

CERTIORARI TO THE SUPREME COURT OF UTAH. 

IN A SUIT UNDER THE FEDERAL SAFETY APPLIANCE AND FEDERAL EMPLOYERS'
LIABILITY ACTS TO RECOVER DAMAGES FROM A RAILROAD FOR THE DEATH OF AN
EMPLOYEE, A STATE TRIAL COURT DIRECTED A VERDICT FOR THE RAILROAD.  THE
SUPREME COURT OF UTAH AFFIRMED.   - UTAH - , 185 P.2D 963.  THIS COURT
GRANTED CERTIORARI.  335 U.S. 807.  REVERSED AND REMANDED, P. 524. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT IN A UTAH STATE COURT UNDER THE FEDERAL
SAFETY APPLIANCE AND FEDERAL EMPLOYERS' LIABILITY ACTS  FN1  TO RECOVER
DAMAGES FOR THE DEATH OF FRANK LUCUS, AN EMPLOYEE OF THE RESPONDENT
RAILROAD.  THE DECEDENT'S DEATH OCCURRED WHEN A ONE-MAN FLAT-TOP
MOTORDRIVEN TRACK CAR CRASHED INTO THE BACK END OF AN EIGHTY-TWO-CAR
FREIGHT TRAIN ON A MAIN-LINE TRACK AT A POINT NEAR LEMAY, UTAH.  BOTH
TRAIN AND MOTORCAR WERE BEING OPERATED IN AN EASTWARD DIRECTION ON
RAILROAD BUSINESS.  THE TRAIN UNEXPECTEDLY STOPPED JUST BEFORE THE
CRASH OCCURRED BECAUSE THE AIR IN ITS BRAKE LINES ESCAPED, THEREBY
LOCKING THE BRAKES.  THE AIR HAD ESCAPED BECAUSE OF A VIOLATION OF THE
FEDERAL SAFETY APPLIANCE ACT IN THAT THE THREADS ON A VALVE WERE SO
BADLY WORN THAT A NUT BECAME DISCONNECTED.  WHEN THE BRAKES LOCKED, THE
MOTORCAR WAS SEVERAL HUNDRED FEET BEHIND THE FREIGHT TRAIN MOVING AT
ABOUT THE SAME RATE AS THE TRAIN, NOT AN EXCESSIVE RATE UNDER ORDINARY
CIRCUMSTANCES.  THE MOTORCAR WAS EQUIPPED WITH BRAKES WHICH HAD THEY
BEEN APPLIED COULD HAVE STOPPED THE CAR WITHIN A DISTANCE OF ABOUT ONE
HUNDRED FEET.  BUT THE DECEDENT WHO WAS IN CONTROL OF THE CAR DID NOT
APPLY THE BRAKES.  APPARENTLY HE AND ANOTHER EMPLOYEE WITH HIM WERE
LOOKING BACKWARD TOWARD A BLOCK SIGNAL AND THEREFORE DID NOT KNOW THE
TRAIN HAD STOPPED.  FN2 

DESPITE THE PROOF THAT THE TRAIN HAD STOPPED BECAUSE OF THE
RAILROAD'S VIOLATION OF THE FEDERAL SAFETY APPLIANCE ACT, THE STATE
TRIAL JUDGE DIRECTED THE JURY TO RETURN A VERDICT IN THE RAILROAD'S
FAVOR.  THIS RESULTED FROM THE COURT'S HOLDING THAT THE ACT DIDN'T
APPLY TO MR. LUCUS, THAT THE ACT'S PROTECTION AGAINST DEFECTIVE BRAKES
DID NOT EXTEND TO EMPLOYEES FOLLOWING AND CRASHING INTO A TRAIN WHICH
STOPPED SUDDENLY BECAUSE OF DEFECTIVE BRAKE APPLIANCES. 

ON APPEAL THE STATE SUPREME COURT AFFIRMED.   - UTAH - , 185 P.2D
963.  THAT COURT AGREED WITH THE TRIAL COURT'S INTERPRETATION OF THE
SAFETY APPLIANCE ACT AND ALSO HELD THAT THE EVIDENCE FAILED TO SHOW
THAT THE DEFECTIVE APPLIANCE WAS THE "LEGAL" CAUSE OF THE CRASH AND OF
THE DEATH OF DECEDENT.  THE OBVIOUS IMPORTANCE OF THE RESTRICTIVE
INTERPRETATION GIVEN TO THE TWO FEDERAL ACTS PROMPTED US TO GRANT
CERTIORARI. 

FIRST.  WE CANNOT AGREE WITH THE STATE SUPREME COURT'S HOLDING THAT
ALTHOUGH THE RAILROAD RAN ITS TRAIN WITH DEFECTIVE BRAKES IT THEREBY
"VIOLATED NO DUTY OWING" TO THE DECEDENT.  THAT COURT SAID THAT THE
OBJECT OF THE SAFETY APPLIANCE ACT "INSOFAR AS BRAKES MIGHT BE
CONCERNED, IS NOT TO PROTECT EMPLOYEES FROM STANDING, BUT FROM MOVING
TRAINS." 

WE DO NOT VIEW THE ACT'S PURPOSE SO NARROWLY.  IT COMMANDS RAILROADS
NOT TO RUN TRAINS WITH DEFECTIVE BRAKES.  AN ABRUPT OR UNEXPECTED STOP
DUE TO BAD BRAKES MIGHT BE EQUALLY DANGEROUS TO EMPLOYEES AND OTHERS AS
A FAILURE TO STOP A TRAIN BECAUSE OF BAD BRAKES.  AND THIS ACT, FAIRLY
INTERPRETED, MUST BE HELD TO PROTECT ALL WHO NEED PROTECTION FROM
DANGEROUS RESULTS DUE TO MAINTENANCE OR OPERATION OF CONGRESSIONALLY
PROHIBITED DEFECTIVE APPLIANCES.  FAIRPORT, P. & E.R. CO. V. MEREDITH,
292 U.S. 589, 597.  LIABILITY OF A RAILROAD UNDER THE SAFETY APPLIANCE
ACT FOR INJURIES INFLICTED AS A RESULT OF THE ACT'S VIOLATION FOLLOWS
FROM THE UNLAWFUL USE OF PROHIBITED DEFECTIVE EQUIPMENT "NOT FROM THE
POSITION THE EMPLOYEE MAY BE IN OR THE WORK WHICH HE MAY BE DOING AT
THE MOMENT WHEN HE IS INJURED."  BRADY V. TERMINAL R. ASSN., 303 U.S.
10, 16; LOUISVILLE & N.R. CO. V. LAYTON, 243 U.S. 617, 621.  IN THIS
CASE WHERE UNDISPUTED EVIDENCE ESTABLISHED THAT THE TRAIN SUDDENLY
STOPPED BECAUSE OF DEFECTIVE AIR-BRAKE APPLIANCES, PETITIONER WAS
ENTITLED TO RECOVER IF THIS DEFECTIVE EQUIPMENT WAS THE SOLE OR A
CONTRIBUTORY PROXIMATE CAUSE OF THE DECEDENT EMPLOYEE'S DEATH.  DAVIS
V. WOLFE, 263 U.S. 239, 243; SPOKANE & I.E.R. CO. V. CAMPBELL, 241 U.S.
497, 509-510. 

SECOND.  THE UTAH SUPREME COURT REVIEWED THE EVIDENCE HERE AND HELD
AS A MATTER OF LAW THAT THE DEFECTIVE EQUIPMENT DID NOT PROXIMATELY
CAUSE OR CONTRIBUTE TO THE DECEDENT'S DEATH.  THAT COURT DISCUSSED
DISTINCTIONS BETWEEN "PROXIMATE CAUSE" IN THE LEGAL SENSE, DEEMED A
SUFFICIENT CAUSE TO IMPOSE LIABILITY, AND "CAUSE" IN THE "PHILOSOPHIC
SENSE," DEEMED INSUFFICIENT TO IMPOSE LIABILITY.  IT CONSIDERED THE
STOPPING OF THIS TRAIN TO HAVE BEEN A CAUSE OF DECEDENT'S DEATH IN THE
"PHILOSOPHIC SENSE" IN THAT THE STOPPING CREATED "A CONDITION UPON
WHICH THE NEGLIGENCE OF PLAINTIFFS' INTESTATE OPERATED," ONE PERHAPS OF
MANY CAUSES "SO INSIGNIFICANT THAT NO ORDINARY MIND WOULD THINK OF THEM
AS CAUSES."  THE COURT ADDED, HOWEVER, THAT THE STOPPING "WAS NOT THE
LEGAL CAUSE OF THE RESULT," THEREBY CLASSIFYING IT AS NOT "A
SUBSTANTIAL FACTOR AS WELL AS ACTUAL FACTOR IN BRINGING ABOUT" THE
DECEDENT'S DEATH.  THIS CONCLUSION WAS REACHED IN PART UPON THE
REASONING THAT "THE LEAK IN THE TRIPLE VALVE CAUSED THE TRAIN TO STOP,
BECAUSE AS A SAFETY DEVICE, IT WAS DESIGNED TO DO JUST THAT." 

THE LANGUAGE SELECTED BY CONGRESS TO FIX LIABILITY IN CASES OF THIS
KIND IS SIMPLE AND DIRECT.  CONSIDERATION OF ITS MEANING BY THE
INTRODUCTION OF DIALECTICAL SUBTLETIES CAN SERVE NO USEFUL
INTERPRETATIVE PURPOSE.  THE STATUTE DECLARES THAT RAILROADS SHALL BE
RESPONSIBLE FOR THEIR EMPLOYEES' DEATHS "RESULTING IN WHOLE OR IN PART"
FROM DEFECTIVE APPLIANCES SUCH AS WERE HERE MAINTAINED.  45 U.S.C. SEC.
51.  AND TO MAKE ITS PURPOSE CRYSTAL CLEAR, CONGRESS HAS ALSO PROVIDED
THAT "NO SUCH EMPLOYEE  ...  SHALL BE HELD TO HAVE BEEN GUILTY OF
CONTRIBUTORY NEGLIGENCE IN ANY CASE" WHERE A VIOLATION OF THE SAFETY
APPLIANCE ACT, SUCH AS THE ONE HERE, "CONTRIBUTED TO THE ...  DEATH OF
SUCH EMPLOYEE."  45 U.S.C. SEC. 53.  CONGRESS HAS THUS FOR ITS OWN
REASONS IMPOSED EXTRAORDINARY SAFETY OBLIGATIONS UPON RAILROADS AND HAS
COMMANDED THAT IF A BREACH OF THESE OBLIGATIONS CONTRIBUTES IN PART TO
AN EMPLOYEE'S DEATH, THE RAILROAD MUST PAY DAMAGES.  THESE AIR-BRAKES
WERE DEFECTIVE; FOR THIS REASON ALONE THE TRAIN SUDDENLY AND
UNEXPECTEDLY STOPPED; A MOTOR TRACK CAR FOLLOWING AT ABOUT THE SAME
RATE OF SPEED AND OPERATED BY AN EMPLOYEE LOOKING IN ANOTHER DIRECTION
CRASHED INTO THE TRAIN; ALL OF THESE CIRCUMSTANCES WERE INSEPARABLY
ARABLY RELATED TO ONE ANOTHER IN TIME AND SPACE.  THE JURY COULD HAVE
FOUND THAT DECEDENT'S DEATH RESULTED FROM ANY OR ALL OF THE FOREGOING
CIRCUMSTANCES. 

IT WAS ERROR TO DIRECT A VERDICT FOR THE RAILROAD.  THE JUDGMENT OF
THE STATE SUPREME COURT IS REVERSED AND THE CAUSE IS REMANDED TO THAT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  IT
IS SO ORDERED. 

FN1  27 STAT. 531, 45 U.S.C. SECS. 1, 8, 9; 35 STAT. 65, AS AMENDED,
36 STAT. 291, AND 53 STAT. 1404, 45 U.S.C. SECS. 51, 53. 

FN2  PETITIONER WAS EMPLOYED BY THE RAILROAD AS A SIGNAL MAINTAINER. 
THE OTHER OCCUPANT OF THE MOTORCAR HAD JUST BEEN EMPLOYED TO WORK IN
THE SAME CAPACITY.  THIS WAS THE NEW EMPLOYEE'S FIRST TRIP AND HE TOOK
THE TRIP TO FAMILIARIZE HIMSELF WITH THE SIGNALS.  BOTH OCCUPANTS OF
THE CAR WERE SEATED AND LOOKING BACK IN THE DIRECTION OF A BLOCK
SIGNAL.  CONTRIBUTORY NEGLIGENCE IS NOT A DEFENSE TO THIS ACTION. 
..END :











LINCOLN UNION V. NORTHWESTERN CO., 335 U.S. 525 


ARGUED NOVEMBER 8-10, 1948.  - DECIDED JANUARY 3, 1949.  - 149 NEB. 507,
31 N.W.2D 477, AFFIRMED.  - 228 N.C. 352, 45 S.E.2D 860, AFFIRMED. 


A NEBRASKA CONSTITUTIONAL AMENDMENT AND A NORTH CAROLINA STATUTE
PROVIDE, IN EFFECT, THAT NO PERSON IN THOSE STATES SHALL BE DENIED AN
OPPORTUNITY TO OBTAIN OR RETAIN EMPLOYMENT BECAUSE HE IS OR IS NOT A
MEMBER OF A LABOR ORGANIZATION.  THEY ALSO FORBID EMPLOYERS TO ENTER
INTO CONTRACTS OR AGREEMENTS OBLIGATING THEMSELVES TO EXCLUDE PERSONS
FROM EMPLOYMENT BECAUSE THEY ARE OR ARE NOT MEMBERS OF LABOR UNIONS. 
HELD:  THEY DO NOT VIOLATE RIGHTS GUARANTEED TO EMPLOYERS, UNIONS, OR
MEMBERS OF UNIONS BY THE CONSTITUTION OF THE UNITED STATES.  PP. 527
537. 

1. THESE STATE LAWS DO NOT ABRIDGE THE FREEDOM OF SPEECH AND THE
RIGHT OF UNIONS AND THEIR MEMBERS "PEACEABLY TO ASSEMBLE, AND TO
PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES," WHICH ARE
GUARANTEED BY THE FIRST AMENDMENT AND MADE APPLICABLE TO THE STATES BY
THE FOURTEENTH AMENDMENT.  PP. 529-531. 

2.  NOR DO THEY CONFLICT WITH ARTICLE I, SEC. 10, OF THE
CONSTITUTION, INSOFAR AS THEY IMPAIR THE OBLIGATION OF CONTRACTS MADE
PRIOR TO THEIR ENACTMENT.  PP. 531-532. 

3.  NOR DO THEY DENY UNIONS AND THEIR MEMBERS EQUAL PROTECTION OF THE
LAWS CONTRARY TO THE FOURTEENTH AMENDMENT.  PP. 532-533. 

4.  NOR DO THEY DEPRIVE EMPLOYERS, UNIONS OR MEMBERS OF UNIONS OF
THEIR LIBERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  PP. 533-537. 

LINCOLN FEDERAL LABOR UNION ET AL. V. NORTHWESTERN IRON & METAL CO. ET
AL. 

*TOGETHER WITH NO. 34, WHITAKER ET AL. V. NORTH CAROLINA, ON APPEAL
FROM THE SUPREME COURT OF NORTH CAROLINA. 

NO. 47.  IN A SUIT BROUGHT BY CERTAIN LABOR ORGANIZATIONS AND THE
PRESIDENT OF ONE OF THEM FOR A DECLARATORY JUDGMENT AND EQUITABLE
RELIEF, A NEBRASKA TRIAL COURT SUSTAINED THE VALIDITY OF THE SO-CALLED
"RIGHT-TO-WORK AMENDMENT" TO THE NEBRASKA CONSTITUTION, NOW DESIGNATED
AS ART. XV, SECS. 13, 14 AND 15, AND SUSTAINED A DEMURRER TO THE
PETITION.  THE SUPREME COURT OF NEBRASKA AFFIRMED.  149 NEB. 507, 31
N.W.2D 477.  ON APPEAL TO THIS COURT, AFFIRMED, P. 537. 

NO. 34.  AN EMPLOYER AND CERTAIN OFFICERS AND AGENTS OF CERTAIN LABOR
UNIONS WERE CONVICTED IN A NORTH CAROLINA STATE COURT OF VIOLATIONS OF
N.C. ACTS, 1947, CH. 328, N.C. GEN. STAT., CH. 95, ART. 10, FOR
ENTERING INTO A "CLOSED-SHOP AGREEMENT."  THE SUPREME COURT OF NORTH
CAROLINA AFFIRMED AND SUSTAINED THE VALIDITY OF THE STATUTE UNDER THE
CONSTITUTION OF THE UNITED STATES.  228 N.C. 352, 45 S.E.2D 860.  ON
APPEAL TO THIS COURT, AFFIRMED, P. 537. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

UNDER EMPLOYMENT PRACTICES IN THE UNITED STATES, EMPLOYERS HAVE
SOMETIMES LIMITED WORK OPPORTUNITIES TO MEMBERS OF UNIONS, SOMETIMES TO
NON-UNION MEMBERS, AND AT OTHER TIMES HAVE EMPLOYED AND KEPT THEIR
WORKERS WITHOUT REGARD TO WHETHER THEY WERE OR WERE NOT MEMBERS OF A
UNION.  EMPLOYERS ARE COMMANDED TO FOLLOW THIS LATTER EMPLOYMENT
PRACTICE IN THE STATES OF NORTH CAROLINA AND NEBRASKA.  A NORTH
CAROLINA STATUTE AND A NEBRASKA CONSTITUTIONAL AMENDMENT  FN1 PROVIDE
THAT NO PERSON IN THOSE STATES SHALL BE DENIED AN OPPORTUNITY TO OBTAIN
OR RETAIN EMPLOYMENT BECAUSE HE IS OR IS NOT A MEMBER OF A LABOR
ORGANIZATION.  TO ENFORCE THIS POLICY NORTH CAROLINA AND NEBRASKA
EMPLOYERS ARE ALSO FORBIDDEN TO ENTER INTO CONTRACTS OR AGREEMENTS
OBLIGATING THEMSELVES TO EXCLUDE PERSONS FROM EMPLOYMENT BECAUSE THEY
ARE OR ARE NOT LABOR UNION MEMBERS.  FN2 

THESE STATE LAWS WERE GIVEN TIMELY CHALLENGE IN NORTH CAROLINA AND
NEBRASKA COURTS ON THE GROUND THAT INSOFAR AS THEY ATTEMPT TO PROTECT
NON-UNION MEMBERS FROM DISCRIMINATION, THE LAWS ARE IN VIOLATION OF
RIGHTS GUARANTEED EMPLOYERS, UNIONS, AND THEIR MEMBERS BY THE UNITED
STATES CONSTITUTION.  FN3  THE STATE LAWS WERE CHALLENGED AS VIOLATIONS
OF THE RIGHT OF FREEDOM OF SPEECH, OF ASSEMBLY AND OF PETITION
GUARANTEED UNIONS AND THEIR MEMBERS BY "THE FIRST AMENDMENT AND
PROTECTED AGAINST INVASION BY THE STATE UNDER THE FOURTEENTH
AMENDMENT."  IT WAS FURTHER CONTENDED THAT THE STATE LAWS IMPAIRED THE
OBLIGATIONS OF EXISTING CONTRACTS IN VIOLATION OF ART. I, SEC. 10, OF
THE UNITED STATES CONSTITUTION AND DEPRIVED THE APPELLANT UNIONS AND
EMPLOYERS OF EQUAL PROTECTION AND DUE PROCESS OF LAW GUARANTEED AGAINST
STATE INVASION BY THE FOURTEENTH AMENDMENT.  ALL OF THESE CONTENTIONS
WERE REJECTED BY THE STATE SUPREME COURTS  FN4  AND THE CASES ARE HERE
ON APPEAL UNDER SEC. 237 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 344(NOW
28 U.S.C. SEC. 1257).  THE SUBSTANTIAL IDENTITY OF THE QUESTIONS RAISED
IN THE TWO CASES PROMPTED US TO SET THEM FOR ARGUMENT TOGETHER AND FOR
THE SAME REASON WE NOW CONSIDER THE CASES IN A SINGLE OPINION. 

FIRST.  IT IS CONTENDED THAT THESE STATE LAWS ABRIDGE THE FREEDOM OF
SPEECH AND THE OPPORTUNITIES OF UNIONS AND THEIR MEMBERS "PEACEABLY TO
ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES." 
FN5  UNDER THE STATE POLICY ADOPTED BY THESE LAWS, EMPLOYERS MUST,
OTHER CONSIDERATIONS BEING EQUAL, GIVE EQUAL OPPORTUNITIES FOR
REMUNERATIVE WORK TO UNION AND NON-UNION MEMBERS WITHOUT DISCRIMINATION
AGAINST EITHER.  IN ORDER TO ACHIEVE THIS OBJECTIVE OF EQUAL
OPPORTUNITY FOR THE TWO GROUPS, EMPLOYERS ARE FORBIDDEN TO MAKE
CONTRACTS WHICH WOULD OBLIGATE THEM TO HIRE OR KEEP NONE BUT UNION
MEMBERS.  NOTHING IN THE LANGUAGE OF THE LAWS INDICATES A PURPOSE TO
PROHIBIT SPEECH, ASSEMBLY, OR PETITION.  PRECISELY WHAT THESE STATE
LAWS DO IS TO FORBID EMPLOYERS ACTING ALONE OR IN CONCERT WITH LABOR
ORGANIZATIONS DELIBERATELY TO RESTRICT EMPLOYMENT TO NONE BUT UNION
MEMBERS. 

IT IS DIFFICULT TO SEE HOW ENFORCEMENT OF THIS STATE POLICY COULD
INFRINGE THE FREEDOM OF SPEECH OF ANYONE, OR DENY TO ANYONE THE RIGHT
TO ASSEMBLE OR TO PETITION FOR A REDRESS OF GRIEVANCES.  AND APPELLANTS
DO NOT CONTEND THAT THE LAWS EXPRESSLY FORBID THE FULL EXERCISE OF
THOSE RIGHTS BY UNIONS OR UNION MEMBERS.  THEIR CONTENTION IS THAT
THESE STATE LAWS INDIRECTLY INFRINGE THEIR CONSTITUTIONAL RIGHTS OF
SPEECH, ASSEMBLY, AND PETITION.  WHILE THE BASIS OF THIS CONTENTION IS
NOT ENTIRELY CLEAR, IT SEEMS TO REST ON THIS LINE OF REASONING:  THE
RIGHT OF UNIONS AND UNION MEMBERS TO DEMAND THAT NO NON-UNION MEMBERS
WORK ALONG WITH UNION MEMBERS IS "INDISPENSABLE TO THE RIGHT OF SELF
ORGANIZATION AND THE ASSOCIATION OF WORKERS INTO UNIONS"; WITHOUT A
RIGHT OF UNION MEMBERS TO REFUSE TO WORK WITH NON-UNION MEMBERS, THERE
ARE "NO MEANS OF ELIMINATING THE COMPETITION OF THE NON-UNION WORKER";
SINCE, THE REASONING CONTINUES, A "CLOSED SHOP" IS INDISPENSABLE TO
ACHIEVEMENT OF SUFFICIENT UNION MEMBERSHIP TO PUT UNIONS AND EMPLOYERS
ON A FULL EQUALITY FOR COLLECTIVE BARGAINING, A CLOSED SHOP IS
CONSEQUENTLY "AN INDISPENSABLE CONCOMITANT" OF "THE RIGHT OF EMPLOYEES
TO ASSEMBLE INTO AND ASSOCIATE TOGETHER THROUGH LABOR ORGANIZATIONS ...
"  JUSTIFICATION FOR SUCH AN EXPANSIVE CONSTRUCTION OF THE RIGHT TO
SPEAK, ASSEMBLE AND PETITION IS THEN RESTED IN PART ON APPELLANTS'
ASSERTION "THAT THE RIGHT TO WORK AS A NON-UNIONIST IS IN NO WAY
EQUIVALENT TO OR THE PARALLEL OF THE RIGHT TO WORK AS A UNION MEMBER;
THAT THERE EXISTS NO CONSTITUTIONAL RIGHT TO WORK AS A NON-UNIONIST ON
THE ONE HAND WHILE THE RIGHT TO MAINTAIN EMPLOYMENT FREE FROM
DISCRIMINATION BECAUSE OF UNION MEMBERSHIP IS CONSTITUTIONALLY
PROTECTED."  CF. WALLACE CORPORATION V. LABOR BOARD, 323 U.S. 248. 

WE DEEM IT UNNECESSARY TO ELABORATE THE NUMEROUS REASONS FOR OUR
REJECTION OF THIS CONTENTION OF APPELLANTS.  NOR NEED WE APPRAISE OR
ANALYZE WITH PARTICULARITY THE RATHER STARTLING IDEAS SUGGESTED TO
SUPPORT SOME OF THE PREMISES ON WHICH APPELLANTS' CONCLUSIONS REST. 
THERE CANNOT BE WRUNG FROM A CONSTITUTIONAL RIGHT OF WORKERS TO
ASSEMBLE TO DISCUSS IMPROVEMENT OF THEIR OWN WORKING STANDARDS, A
FURTHER CONSTITUTIONAL RIGHT TO DRIVE FROM REMUNERATIVE EMPLOYMENT ALL
OTHER PERSONS WHO WILL NOT OR CAN NOT PARTICIPATE IN UNION ASSEMBLIES. 
THE CONSTITUTIONAL RIGHT OF WORKERS TO ASSEMBLE, TO DISCUSS AND
FORMULATE PLANS FOR FURTHERING THEIR OWN SELF INTEREST IN JOBS CANNOT
BE CONSTRUED AS A CONSTITUTIONAL GUARANTEE THAT NONE SHALL GET AND HOLD
JOBS EXCEPT THOSE WHO WILL JOIN IN THE ASSEMBLY OR WILL AGREE TO ABIDE
BY THE ASSEMBLY'S PLANS.  FOR WHERE CONDUCT AFFECTS THE INTERESTS OF
OTHER INDIVIDUALS AND THE GENERAL PUBLIC, THE LEGALITY OF THAT CONDUCT
MUST BE MEASURED BY WHETHER THE CONDUCT CONFORMS TO VALID LAW, EVEN
THOUGH THE CONDUCT IS ENGAGED IN PURSUANT TO PLANS OF AN ASSEMBLY. 

SECOND.  THERE IS A SUGGESTION THOUGH NOT ELABORATED IN BRIEFS THAT
THESE STATE LAWS CONFLICT WITH ART. I, SEC. 10, OF THE UNITED STATES
CONSTITUTION, INSOFAR AS THEY IMPAIR THE OBLIGATION OF CONTRACTS MADE
PRIOR TO THEIR ENACTMENT.  THAT THIS CONTENTION IS WITHOUT MERIT IS NOW
TOO CLEARLY ESTABLISHED TO REQUIRE DISCUSSION.  SEE HOME BLDG. & LOAN
ASSN. V. BLAISDELL, 290 U.S. 398, 436-439, AND CASES THERE CITED.  AND
ALSO VEIX V. SIXTH WARD BLDG. & LOAN ASSN., 310 U.S. 32, 38; EAST NEW
YORK SAVINGS BANK V. HAHN, 326 U.S. 230, 232. 

THIRD.  IT IS CONTENDED THAT THE NORTH CAROLINA AND NEBRASKA LAWS
DENY UNIONS AND THEIR MEMBERS EQUAL PROTECTION OF THE LAWS AND THUS
OFFEND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
BECAUSE THE OUTLAWED CONTRACTS ARE A USEFUL INCENTIVE TO THE GROWTH OF
UNION MEMBERSHIP, IT IS SAID THAT THESE LAWS WEAKEN THE BARGAINING
POWER OF UNIONS AND CORRESPONDINGLY STRENGTHEN THE POWER OF EMPLOYERS. 
THIS MAY BE TRUE.  BUT THERE ARE OTHER MATTERS TO BE CONSIDERED.  THE
STATE LAWS ALSO MAKE IT IMPOSSIBLE FOR AN EMPLOYER TO MAKE CONTRACTS
WITH COMPANY UNIONS WHICH OBLIGATE THE EMPLOYER TO REFUSE JOBS TO UNION
MEMBERS.  IN THIS RESPECT, THESE STATE LAWS PROTECT THE EMPLOYMENT
OPPORTUNITIES OF MEMBERS OF INDEPENDENT UNIONS.  SEE WALLACE
CORPORATION V. LABOR BOARD, SUPRA.  THIS CIRCUMSTANCE ALONE, WITHOUT
REGARD TO OTHERS THAT NEED NOT BE MENTIONED, IS SUFFICIENT TO SUPPORT
THE STATE LAWS AGAINST A CHARGE THAT THEY DENY EQUAL PROTECTION TO
UNIONS AS AGAINST EMPLOYERS AND NON-UNION WORKERS. 

IT IS ALSO ARGUED THAT THE STATE LAWS DO NOT PROVIDE PROTECTION FOR
UNION MEMBERS EQUAL TO THAT PROVIDED FOR NON-UNION MEMBERS.  BUT IN
IDENTICAL LANGUAGE THESE STATE LAWS FORBID EMPLOYERS TO DISCRIMINATE
AGAINST UNION AND NON-UNION MEMBERS.  NEBRASKA AND NORTH CAROLINA THUS
COMMAND EQUAL EMPLOYMENT OPPORTUNITIES FOR BOTH GROUPS OF WORKERS.  IT
IS PRECISELY BECAUSE THESE STATE LAWS COMMAND EQUAL OPPORTUNITIES FOR
BOTH GROUPS THAT APPELLANTS ARGUE THAT THE CONSTITUTIONALLY PROTECTED
RIGHTS OF ASSEMBLY AND DUE PROCESS HAVE BEEN VIOLATED.  FOR THE
CONSTITUTIONAL PROTECTIONS SURROUNDING THESE RIGHTS ARE RELIED ON BY
APPELLANTS TO SUPPORT A CONTENTION THAT THE FEDERAL CONSTITUTION
GUARANTEES GREATER EMPLOYMENT RIGHTS TO UNION MEMBERS THAN TO NON-UNION
MEMBERS.  THIS CLAIM OF APPELLANTS IS ITSELF A REFUTATION OF THE
CONTENTION THAT THE NEBRASKA AND NORTH CAROLINA LAWS FAIL TO AFFORD
PROTECTION TO UNION MEMBERS EQUAL TO THE PROTECTION AFFORDED NON-UNION
WORKERS. 

FOURTH.  IT IS CONTENDED THAT THESE STATE LAWS DEPRIVE APPELLANTS OF
THEIR LIBERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  APPELLANTS ARGUE THAT THE LAWS ARE SPECIFICALLY DESIGNED TO
DEPRIVE ALL PERSONS WITHIN THE TWO STATES OF "LIBERTY" (1) TO REFUSE TO
HIRE OR RETAIN ANY PERSON IN EMPLOYMENT BECAUSE HE IS OR IS NOT A UNION
MEMBER, AND (2) TO MAKE A CONTRACT OR AGREEMENT TO ENGAGE IN SUCH
EMPLOYMENT DISCRIMINATION AGAINST UNION OR NON-UNION MEMBERS. 

MUCH OF APPELLANTS' ARGUMENT HERE SEEKS TO ESTABLISH THAT DUE PROCESS
OF LAW IS DENIED EMPLOYEES AND UNION MEN BY THAT PART OF THESE STATE
LAWS THAT FORBIDS THEM TO MAKE CONTRACTS WITH THE EMPLOYER OBLIGATING
HIM TO REFUSE TO HIRE OR RETAIN NON-UNION WORKERS.  BUT THAT PART OF
THESE LAWS DOES NO MORE THAN PROVIDE A METHOD TO AID ENFORCEMENT OF THE
HEART OF THE LAWS, NAMELY, THEIR COMMAND THAT EMPLOYERS MUST NOT
DISCRIMINATE AGAINST EITHER UNION OR NON-UNION MEMBERS BECAUSE THEY ARE
SUCH.  IF THE STATES HAVE CONSTITUTIONAL POWER TO BAN SUCH
DISCRIMINATION BY LAW, THEY ALSO HAVE POWER TO BAN CONTRACTS WHICH IF
PERFORMED WOULD BRING ABOUT THE PROHIBITED DISCRIMINATION.  CHICAGO, B.
& Q.R. CO. V. MCGUIRE, 219 U.S. 549, 570, 571. 

MANY CASES ARE CITED BY APPELLANTS IN WHICH THIS COURT HAS SAID THAT
IN SOME INSTANCES THE DUE PROCESS CLAUSE PROTECTS THE LIBERTY OF
PERSONS TO MAKE CONTRACTS.  BUT NONE OF THESE CASES, EVEN THOSE
ACCORDING THE BROADEST CONSTITUTIONAL PROTECTION TO THE MAKING OF
CONTRACTS, EVER WENT SO FAR AS TO INDICATE THAT THE DUE PROCESS CLAUSE
BARS A STATE FROM PROHIBITING CONTRACTS TO ENGAGE IN CONDUCT BANNED BY
A VALID STATE LAW.  SO HERE, IF THE PROVISIONS IN THE STATE LAWS
AGAINST EMPLOYER DISCRIMINATION ARE VALID, IT FOLLOWS THAT THE CONTRACT
PROHIBITION ALSO IS VALID.  BAYSIDE FISH FLOUR CO. V. GENTRY, 297 U.S.
422, 427.  AND SEE SAGE V. HAMPE, 235 U.S. 99, 104-105.  WE THEREFORE
TURN TO THE DECISIVE QUESTION UNDER THE DUE PROCESS CONTENTION, WHICH
IS: DOES THE DUE PROCESS CLAUSE FORBID A STATE TO PASS LAWS CLEARLY
DESIGNED TO SAFEGUARD THE OPPORTUNITY OF NON-UNION WORKERS TO GET AND
HOLD JOBS, FREE FROM DISCRIMINATION AGAINST THEM BECAUSE THEY ARE NON
UNION WORKERS? 

THERE WAS A PERIOD IN WHICH LABOR UNION MEMBERS WHO WANTED TO GET AND
HOLD JOBS WERE THE VICTIMS OF WIDESPREAD EMPLOYER DISCRIMINATION
PRACTICES.  CONTRACTS BETWEEN EMPLOYERS AND THEIR EMPLOYEES WERE USED
BY EMPLOYERS TO ACCOMPLISH THIS ANTI-UNION EMPLOYMENT DISCRIMINATION. 
BEFORE HIRING WORKERS, EMPLOYERS REQUIRED THEM TO SIGN AGREEMENTS
STATING THAT THE WORKERS WERE NOT AND WOULD NOT BECOME LABOR UNION
MEMBERS.  SUCH ANTI-UNION PRACTICES WERE SO OBNOXIOUS TO WORKERS THAT
THEY GAVE THESE REQUIRED AGREEMENTS THE NAME OF "YELLOW DOG
CONTRACTS."  THIS HOSTILITY OF WORKERS ALSO PROMPTED PASSAGE OF STATE
AND FEDERAL LAWS TO BAN EMPLOYER DISCRIMINATION AGAINST UNION MEMBERS
AND TO OUTLAW YELLOW DOG CONTRACTS. 

IN 1907 THIS COURT IN ADAIR V. UNITED STATES, 208 U.S. 161,
CONSIDERED THE FEDERAL LAW WHICH PROHIBITED DISCRIMINATION AGAINST
UNION WORKERS.  ADAIR, AN AGENT OF THE LOUISVILLE & NASHVILLE RAILROAD
COMPANY, HAD BEEN INDICTED AND CONVICTED FOR HAVING DISCHARGED COPPAGE,
AN EMPLOYEE OF THE RAILROAD, BECAUSE COPPAGE WAS A MEMBER OF THE ORDER
OF LOCOMOTIVE FIREMEN.  THIS COURT THERE HELD, OVER THE DISSENTS OF
JUSTICES MCKENNA AND HOLMES, THAT THE RAILROAD, BECAUSE OF THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT, HAD A CONSTITUTIONAL RIGHT TO
DISCRIMINATE AGAINST UNION MEMBERS AND COULD THEREFORE DO SO THROUGH
USE OF YELLOW DOG CONTRACTS.  THE CHIEF RELIANCE FOR THIS HOLDING WAS
LOCHNER V. NEW YORK, 198 U.S. 45, WHICH HAD INVALIDATED A NEW YORK LAW
PRESCRIBING MAXIMUM HOURS FOR WORK IN BAKERIES.  THIS COURT HAD FOUND
SUPPORT FOR ITS LOCHNER HOLDING IN WHAT HAD BEEN SAID IN ALLGEYER V.
LOUISIANA, 165 U.S. 578, A CASE ON WHICH APPELLANTS HERE STRONGLY
RELY.  THERE WERE STRONG DISSENTS IN THE ADAIR AND LOCHNER CASES.    IN
1914 THIS COURT REAFFIRMED THE PRINCIPLES OF THE ADAIR CASE IN COPPAGE
V. KANSAS, 236 U.S. 1, AGAIN OVER STRONG DISSENTS, AND HELD THAT A
KANSAS STATUTE OUTLAWING YELLOW DOG CONTRACTS DENIED EMPLOYERS AND
EMPLOYEES A LIBERTY TO FIX TERMS OF EMPLOYMENT.  FOR THIS REASON THE
LAW WAS HELD INVALID UNDER THE DUE PROCESS CLAUSE.    THE ALLGEYER
LOCHNER-ADAIR-COPPAGE CONSTITUTIONAL DOCTRINE WAS FOR SOME YEARS
FOLLOWED BY THIS COURT.  IT WAS USED TO STRIKE DOWN LAWS FIXING MINIMUM
WAGES AND MAXIMUM HOURS IN EMPLOYMENT, LAWS FIXING PRICES, AND LAWS
REGULATING BUSINESS ACTIVITIES.  SEE CASES CITED IN OLSEN V. NEBRASKA,
313 U.S. 236, 244-246, AND OSBORN V. OZLIN, 310 U.S. 53, 66-67.  AND
THE SAME CONSTITUTIONAL PHILOSOPHY WAS FAITHFULLY ADHERED TO IN ADAMS
V. TANNER, 244 U.S. 590, A CASE STRONGLY PRESSED UPON US BY
APPELLANTS.  IN ADAMS V. TANNER, THIS COURT WITH FOUR JUSTICES
DISSENTING STRUCK DOWN A STATE LAW ABSOLUTELY PROHIBITING MAINTENANCE
OF PRIVATE EMPLOYMENT AGENCIES.  THE MAJORITY FOUND THAT SUCH
BUSINESSES WERE HIGHLY BENEFICIAL TO THE PUBLIC AND UPON THIS
CONCLUSION HELD THAT THE STATE WAS WITHOUT POWER TO PROSCRIBE THEM. 
OUR HOLDING AND OPINION IN OLSEN V. NEBRASKA, SUPRA, CLEARLY UNDERMINED
ADAMS V. TANNER. 

APPELLANTS ALSO RELY HEAVILY ON CERTAIN LANGUAGE USED IN THIS COURT'S
OPINION IN WOLFF PACKING CO. V. COURT OF INDUSTRIAL RELATIONS, 262 U.S.
522.  IN THAT CASE THE COURT INVALIDATED A STATE LAW WHICH IN PART
PROVIDED A METHOD FOR A STATE AGENCY TO FIX WAGES AND HOURS.  FN6  SEE
WOLFF CO. V. INDUSTRIAL COURT, 267 U.S. 552, 565.  IN INVALIDATING THIS
PART OF THE STATE ACT, THIS COURT CONSTRUED THE DUE PROCESS CLAUSE AS
FORBIDDING LEGISLATION TO FIX HOURS AND WAGES, OR TO FIX PRICES OF
PRODUCTS.  THE COURT ALSO RELIED ON A DISTINCTION BETWEEN BUSINESSES
ACCORDING TO WHETHER THEY WERE OR WERE NOT "CLOTHED WITH A PUBLIC
INTEREST."  THIS LATTER DISTINCTION WAS REJECTED IN NEBBIA V. NEW YORK,
291 U.S. 502.  THAT THE DUE PROCESS CLAUSE DOES NOT BAN LEGISLATIVE
POWER TO FIX PRICES, WAGES AND HOURS AS WAS ASSUMED IN THE WOLFF CASE,
WAS SETTLED AS TO PRICE FIXING IN THE NEBBIA AND OLSEN CASES.  THAT
WAGES AND HOURS CAN BE FIXED BY LAW IS NO LONGER DOUBTED SINCE WEST
COAST HOTEL CO. V. PARRISH, 300 U.S. 379; UNITED STATES V. DARBY, 312
U.S. 100, 125; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 187. 

THIS COURT BEGINNING AT LEAST AS EARLY AS 1934, WHEN THE NEBBIA CASE
WAS DECIDED, HAS STEADILY REJECTED THE DUE PROCESS PHILOSOPHY
ENUNCIATED IN THE ADAIR-COPPAGE LINE OF CASES.  IN DOING SO IT HAS
CONSCIOUSLY RETURNED CLOSER AND CLOSER TO THE EARLIER CONSTITUTIONAL
PRINCIPLE THAT STATES HAVE POWER TO LEGISLATE AGAINST WHAT ARE FOUND TO
BE INJURIOUS PRACTICES IN THEIR INTERNAL COMMERCIAL AND BUSINESS
AFFAIRS, SO LONG AS THEIR LAWS DO NOT RUN AFOUL OF SOME SPECIFIC
FEDERAL CONSTITUTIONAL PROHIBITION, OR OF SOME VALID FEDERAL LAW.  SEE
NEBBIA V. NEW YORK, SUPRA AT 523-524, AND WEST COAST HOTEL CO. V.
PARRISH, SUPRA AT 392-395, AND CASES CITED.  UNDER THIS CONSTITUTIONAL
DOCTRINE THE DUE PROCESS CLAUSE IS NO LONGER TO BE SO BROADLY CONSTRUED
THAT THE CONGRESS AND STATE LEGISLATURES ARE PUT IN A STRAIT JACKET
WHEN THEY ATTEMPT TO SUPPRESS BUSINESS AND INDUSTRIAL CONDITIONS WHICH
THEY REGARD AS OFFENSIVE TO THE PUBLIC WELFARE. 

APPELLANTS NOW ASK US TO RETURN, AT LEAST IN PART, TO THE DUE PROCESS
PHILOSOPHY THAT HAS BEEN DELIBERATELY DISCARDED.  CLAIMING THAT THE
FEDERAL CONSTITUTION ITSELF AFFORDS PROTECTION FOR UNION MEMBERS
AGAINST DISCRIMINATION, THEY NEVERTHELESS ASSERT THAT THE SAME
CONSTITUTION FORBIDS A STATE FROM PROVIDING THE SAME PROTECTION FOR NON
UNION MEMBERS.  JUST AS WE HAVE HELD THAT THE DUE PROCESS CLAUSE ERECTS
NO OBSTACLE TO BLOCK LEGISLATIVE PROTECTION OF UNION MEMBERS, WE NOW
HOLD THAT LEGISLATIVE PROTECTION CAN BE AFFORDED NON-UNION WORKERS. 
AFFIRMED. 

FN1  SECTION 2 OF CHAPTER 328 OF THE NORTH CAROLINA SESSION LAWS,
ENACTED IN 1947, READS AS FOLLOWS: 

"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 THE PUBLIC POLICY AND AN ILLEGAL
COMBINATION OR CONSPIRACY IN RESTRAINT OF TRADE OR COMMERCE IN THE
STATE OF NORTH CAROLINA." 

NEBRASKA IN 1946 ADOPTED A CONSTITUTIONAL AMENDMENT, ART. XV, SEC. 13
OF WHICH READS AS FOLLOWS: 

"NO PERSON SHALL BE DENIED EMPLOYMENT BECAUSE OF MEMBERSHIP IN OR
AFFILIATION WITH, OR RESIGNATION OR EXPULSION FROM A LABOR ORGANIZATION
OR BECAUSE OF REFUSAL TO JOIN OR AFFILIATE WITH A LABOR ORGANIZATION;
NOR SHALL ANY INDIVIDUAL OR CORPORATION OR ASSOCIATION OF ANY KIND
ENTER INTO ANY CONTRACT, WRITTEN OR ORAL, TO EXCLUDE PERSONS FROM
EMPLOYMENT BECAUSE OF MEMBERSHIP IN OR NONMEMBERSHIP IN A LABOR
ORGANIZATION." 

FN2  SHOPS THAT REFUSE TO EMPLOY ANY BUT UNION MEMBERS ARE SOMETIMES
DESIGNATED AS "CLOSED SHOPS," SOMETIMES AS "UNION SHOPS."  CONTRACTS
WHICH OBLIGATE AN EMPLOYER TO EMPLOY NONE BUT UNION MEMBERS ARE
SOMETIMES DESIGNATED AS UNION SECURITY AGREEMENTS, CLOSED SHOP
CONTRACTS OR UNION SHOP CONTRACTS.  THERE IS ALSO MUCH DISPUTE AS TO
THE EXACT MEANING OF THE TERM "OPEN SHOP."  SEE ENCYCLOPEDIA OF SOCIAL
SCIENCES, VOL. 3(1930), PP. 568-569.  THERE IS SUCH AN IMPORTANT
DIFFERENCE IN EMPHASIS BETWEEN THESE DIFFERENT LABELS THAT WE THINK IT
BETTER TO AVOID USE OF ANY OF THEM IN THIS OPINION. 

FN3  THE NEBRASKA CONSTITUTIONAL AMENDMENT WAS CHALLENGED IN AN
ACTION FOR EQUITABLE RELIEF AND FOR A DECLARATORY JUDGMENT.  A
SUBSTANTIAL BASIS OF THE COMPLAINT WAS THAT EMPLOYERS HAD REFUSED TO
COMPLY WITH THE REQUEST OF UNIONS TO DISCHARGE CERTAIN EMPLOYEES WHO
HAD FAILED TO RETAIN UNION MEMBERSHIP.  IN NORTH CAROLINA, CRIMINAL
PROCEEDINGS WERE INSTITUTED AGAINST THE APPELLANTS CHARGING THAT AN
AGREEMENT MADE UNLAWFUL BY THE STATUTE HAD BEEN ENTERED INTO BY THE
APPELLANT EMPLOYER AND THE OTHER APPELLANTS, WHO ARE OFFICERS AND
AGENTS OF LABOR UNIONS AFFILIATED WITH THE AMERICAN FEDERATION OF
LABOR. 

FN4  STATE V. WHITAKER, 228 N.C. 352, 45 S.E.2D 860; LINCOLN FEDERAL
LABOR UNION NO. 19129 V. NORTHWESTERN IRON & METAL CO., 149 NEB. 507,
31 N.W.2D 477.  SEE ALSO AMERICAN FEDERATION OF LABOR V. AMERICAN SASH
& DOOR CO., 67 ARIZ. 20, 189 P.2D 912.  AN APPEAL IN THIS LATTER CASE
WAS ALSO ARGUED ALONG WITH THE TWO CASES CONSIDERED IN THIS OPINION. 
WE HAVE TREATED THE ARIZONA CASE IN A SEPARATE OPINION, POST, P. 538,
BECAUSE THE CHALLENGED ARIZONA AMENDMENT PRESENTS A QUESTION NOT RAISED
IN THE NEBRASKA OR NORTH CAROLINA LAWS. 

FN5  THIS CONTENTION RESTS ON THE PREMISE THAT THE FOURTEENTH
AMENDMENT MAKES THE PROHIBITIONS AND GUARANTEES OF THE FIRST AMENDMENT
APPLICABLE TO STATE ACTION.  SEE WEST VIRGINIA V. BARNETTE, 319 U.S.
624, 639.  THE PERTINENT LANGUAGE OF THE FIRST AMENDMENT IS "CONGRESS
SHALL MAKE NO LAW ...  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." 

FN6  OTHER PARTS OF THE STATE STATUTE RELATED TO MATTERS OTHER THAN
WAGES, PRICES, AND THE MAKING OF CONTRACTS OF EMPLOYMENT. 
CONSIDERATIONS INVOLVED IN THE CONSTITUTIONAL VALIDITY OF THOSE OTHER
PARTS OF THE STATUTE ARE NOT RELEVANT HERE. 

(FOR CONCURRING OPINION OF MR. JUSTICE FRANKFURTER, SEE POST, P.
542.) 

(FOR CONCURRING OPINION OF MR. JUSTICE RUTLEDGE, JOINED BY MR.
JUSTICE MURPHY INSOFAR AS IT APPLIES TO NOS. 34 AND 47, SEE POST, P.
557.) 
..END :
















A.F. OF L. V. AMERICAN SASH CO., 335 U.S. 538 


NO. 27.  ARGUED NOVEMBER 8-10, 1948.  - DECIDED JANUARY 3, 1949.  - 67
ARIZ. 20, 189 P.2D 912, AFFIRMED. 


1.  THE AMENDMENT TO THE ARIZONA CONSTITUTION WHICH PROVIDES THAT NO
PERSON SHALL BE DENIED THE OPPORTUNITY TO OBTAIN OR RETAIN EMPLOYMENT
BECAUSE OF NON-MEMBERSHIP IN A LABOR ORGANIZATION AND FORBIDS ANYONE TO
ENTER INTO AN AGREEMENT TO DO SO DOES NOT DENY EMPLOYERS, LABOR UNIONS
OR MEMBERS OF LABOR UNIONS FREEDOM OF SPEECH, ASSEMBLY OR PETITION, OR
IMPAIR THE OBLIGATION OF THEIR CONTRACTS, OR DEPRIVE THEM OF DUE
PROCESS OF LAW, CONTRARY TO THE CONSTITUTION OF THE UNITED STATES. 
LINCOLN FEDERAL LABOR UNION V. NORTHWESTERN IRON & METAL CO., ANTE, P.
525.  PP. 539-540. 

2.  NOR DOES ITS FAILURE TO FORBID LIKE DISCRIMINATION AGAINST UNION
MEMBERS DENY THEM EQUAL PROTECTION OF THE LAWS CONTRARY TO THE
FOURTEENTH AMENDMENT - ESPECIALLY IN VIEW OF THE FACT THAT CERTAIN
ARIZONA STATUTES MAKE IT A MISDEMEANOR FOR ANY PERSON TO COERCE A
WORKER TO MAKE A CONTRACT "NOT TO JOIN OR BECOME A MEMBER OF A LABOR
ORGANIZATION" AS A CONDITION OF EMPLOYMENT IN ARIZONA AND MAKE SUCH
CONTRACTS VOID AND UNENFORCEABLE.  LABOR BOARD V. JONES & LAUGHLIN
CORP., 301 U.S. 1.  PP. 540-542. 

AMERICAN FEDERATION OF LABOR ET AL. V. AMERICAN SASH & DOOR CO. ET
AL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

IN A SUIT BY CERTAIN LABOR UNIONS, AN OFFICER OF ONE OF THEM AND AN
EMPLOYER FOR A DECLARATORY JUDGMENT AND EQUITABLE RELIEF AGAINST
ENFORCEMENT OF THE "RIGHT-TO-WORK AMENDMENT" TO THE ARIZONA
CONSTITUTION, AN ARIZONA TRIAL COURT DISMISSED THE COMPLAINT ON THE
GROUND THAT THE AMENDMENT DID NOT VIOLATE THE CONSTITUTION OF THE
UNITED STATES.  THE SUPREME COURT OF ARIZONA AFFIRMED.  67 ARIZ. 20,
189 P.2D 912.  ON APPEAL TO THIS COURT, AFFIRMED, P. 542. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON APPEAL FROM THE SUPREME COURT OF ARIZONA UNDER
SEC. 237 OF THE JUDICIAL CODE AS AMENDED, 28 U.S.C. SEC. 344(NOW 28
U.S.C. SEC. 1257).  IT INVOLVES THE CONSTITUTIONAL VALIDITY OF THE
FOLLOWING AMENDMENT TO THE ARIZONA CONSTITUTION, ADOPTED AT THE 1946
GENERAL ELECTION: 

"NO PERSON SHALL BE DENIED THE OPPORTUNITY TO OBTAIN OR RETAIN
EMPLOYMENT BECAUSE OF NON-MEMBERSHIP IN A LABOR ORGANIZATION, NOR SHALL
THE STATE OR ANY SUBDIVISION THEREOF, OR ANY CORPORATION, INDIVIDUAL OR
ASSOCIATION OF ANY KIND ENTER INTO ANY AGREEMENT, WRITTEN OR ORAL,
WHICH EXCLUDES ANY PERSON FROM EMPLOYMENT OR CONTINUATION OF EMPLOYMENT
BECAUSE OF NON-MEMBERSHIP IN A LABOR ORGANIZATION." 

THE SUPREME COURT OF ARIZONA SUSTAINED THE AMENDMENT AS
CONSTITUTIONAL AGAINST THE CONTENTIONS THAT IT "DEPRIVED UNION
APPELLANTS OF RIGHTS GUARANTEED UNDER THE FIRST AMENDMENT AND PROTECTED
AGAINST INVASION BY THE STATE UNDER THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION"; THAT IT IMPAIRED THE OBLIGATIONS OF
EXISTING CONTRACTS IN VIOLATION OF ART. I, SEC. 10, OF THE UNITED
STATES CONSTITUTION; AND THAT IT DEPRIVED APPELLANTS OF DUE PROCESS OF
LAW, AND DENIED THEM EQUAL PROTECTION OF THE LAWS CONTRARY TO THE
FOURTEENTH AMENDMENT.  ALL OF THESE QUESTIONS, PROPERLY RESERVED IN THE
STATE COURT, WERE DECIDED AGAINST THE APPELLANTS BY THE STATE SUPREME
COURT.  FN1  THE SAME QUESTIONS RAISED IN THE STATE COURT ARE PRESENTED
HERE. 

FOR REASONS GIVEN IN TWO OTHER CASES DECIDED TODAY WE REJECT THE
APPELLANTS' CONTENTIONS THAT THE ARIZONA AMENDMENT DENIES THEM FREEDOM
OF SPEECH, ASSEMBLY OR PETITION, IMPAIRS THE OBLIGATION OF THEIR
CONTRACTS, OR DEPRIVES THEM OF DUE PROCESS OF LAW.  LINCOLN FEDERAL
LABOR UNION V. NORTHWESTERN IRON & METAL CO. AND WHITAKER V. NORTH
CAROLINA, ANTE, P. 525.  A DIFFERENCE BETWEEN THE ARIZONA AMENDMENT AND
THE AMENDMENT AND STATUTE CONSIDERED IN THE NEBRASKA AND NORTH CAROLINA
CASES HAS MADE IT NECESSARY FOR US TO GIVE SEPARATE CONSIDERATION TO
THE CONTENTION IN THIS CASE THAT THE ARIZONA AMENDMENT DENIES
APPELLANTS EQUAL PROTECTION OF THE LAWS. 

THE LANGUAGE OF THE ARIZONA AMENDMENT PROHIBITS EMPLOYMENT
DISCRIMINATION AGAINST NON-UNION WORKERS, BUT IT DOES NOT PROHIBIT
DISCRIMINATION AGAINST UNION WORKERS.  IT IS ARGUED THAT A FAILURE TO
PROVIDE THE SAME PROTECTION FOR UNION WORKERS AS THAT PROVIDED FOR NON
UNION WORKERS PLACES THE UNION WORKERS AT A DISADVANTAGE, THUS DENYING
UNIONS AND THEIR MEMBERS THE EQUAL PROTECTION OF ARIZONA'S LAWS. 

ALTHOUGH THE ARIZONA AMENDMENT DOES NOT ITSELF EXPRESSLY PROHIBIT
DISCRIMINATION AGAINST UNION WORKERS, THAT STATE HAS NOT LEFT UNIONS
AND UNION MEMBERS WITHOUT PROTECTION FROM DISCRIMINATION ON ACCOUNT OF
UNION MEMBERSHIP.  PRIOR TO PASSAGE OF THIS CONSTITUTIONAL AMENDMENT,
ARIZONA MADE IT A MISDEMEANOR FOR ANY PERSON TO COERCE A WORKER TO MAKE
A CONTRACT "NOT TO JOIN, BECOME OR REMAIN, A MEMBER OF ANY LABOR
ORGANIZATION" AS A CONDITION OF GETTING OR HOLDING A JOB IN ARIZONA.  A
AS A "YELLOW DOG CONTRACT") VOID AND UNENFORCEABLE N2.  SIMILARLY, THE
ARIZONA CONSTITUTIONAL AMENDMENT MAKES VOID AND UNENFORCEABLE CONTRACTS
UNDER WHICH AN EMPLOYER AGREES TO DISCRIMINATE AGAINST NON-UNION
WORKERS.  STATUTES IMPLEMENTING THE AMENDMENT HAVE PROVIDED AS
SANCTIONS FOR ITS ENFORCEMENT RELIEF BY INJUNCTION AND SUITS FOR
DAMAGES FOR DISCRIMINATION PRACTICED IN VIOLATION OF THE AMENDMENT. 
FN3  WHETHER THE SAME KIND OF SANCTIONS WOULD BE AFFORDED A UNION
WORKER AGAINST WHOM AN EMPLOYER DISCRIMINATED IS NOT MADE CLEAR BY THE
OPINION OF THE STATE SUPREME COURT IN THIS CASE.  BUT ASSUMING THAT
ARIZONA COURTS WOULD NOT AFFORD A REMEDY BY INJUNCTION OR SUIT FOR
DAMAGES, WE ARE UNABLE TO FIND ANY INDICATION THAT ARIZONA'S AMENDMENT
AND STATUTES ARE WEIGHTED ON THE SIDE OF NON-UNION AS AGAINST UNION
WORKERS.  WE ARE SATISFIED THAT ARIZONA HAS ATTEMPTED BOTH IN THE ANTI
YELLOW-DOG-CONTRACT LAW AND IN THE ANTIDISCRIMINATION CONSTITUTIONAL
AMENDMENT TO STRIKE AT WHAT WERE CONSIDERED EVILS, TO STRIKE WHERE
THOSE EVILS WERE MOST FELT, AND TO STRIKE IN A MANNER THAT WOULD
EFFECTIVELY SUPPRESS THE EVILS. 

IN LABOR BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1, THIS COURT
CONSIDERED A CHALLENGE TO THE NATIONAL LABOR RELATIONS ACT ON THE
GROUND THAT IT APPLIED RESTRAINTS AGAINST EMPLOYERS BUT DID NOT APPLY
SIMILAR RESTRAINTS AGAINST WRONGFUL CONDUCT BY EMPLOYEES.  WE THERE
POINTED OUT, AT P. 46, THE GENERAL RULE THAT "LEGISLATIVE AUTHORITY,
EXERTED WITHIN ITS PROPER FIELD, NEED NOT EMBRACE ALL THE EVILS WITHIN
ITS REACH."  AND CONCERNING STATE LAWS WE HAVE SAID THAT THE EXISTENCE
OF EVILS AGAINST WHICH THE LAW SHOULD AFFORD PROTECTION AND THE
RELATIVE NEED OF DIFFERENT GROUPS FOR THAT PROTECTION "IS A MATTER FOR
THE LEGISLATIVE JUDGMENT."  WEST COAST HOTEL CO. V. PARRISH, 300 U.S.
379, 400.  WE CANNOT SAY THAT THE ARIZONA AMENDMENT HAS DENIED
APPELLANTS EQUAL PROTECTION OF THE LAWS.  AFFIRMED. 

FN1  AMERICAN FEDERATION OF LABOR V. AMERICAN SASH & DOOR CO., 67
ARIZ. 20, 189 P.2D 912. 

FN2  ARIZ. CODE ANN. SEC. 56-120(1939). 

FN3  ARIZ. SESS. LAWS (1947) C. 81, P. 173. 

MR. JUSTICE MURPHY DISSENTS. 

MR. JUSTICE FRANKFURTER, CONCURRING* . 

*(THIS IS ALSO A CONCURRENCE IN NO. 47, LINCOLN FEDERAL LABOR UNION
V. NORTHWESTERN IRON & METAL CO., AND NO. 34, WHITAKER V. NORTH
CAROLINA, DECIDED TOGETHER, ANTE, P. 525.) 

ARIZONA, NEBRASKA, AND NORTH CAROLINA HAVE PASSED LAWS FORBIDDING
AGREEMENTS TO EMPLOY ONLY UNION MEMBERS.  THE UNITED STATES
CONSTITUTION IS INVOKED AGAINST THESE LAWS.  SINCE THE CASES BRING INTO
QUESTION THE JUDICIAL PROCESS IN ITS APPLICATION TO THE DUE PROCESS
CLAUSE, EXPLICIT AVOWAL OF INDIVIDUAL ATTITUDES TOWARDS THAT PROCESS
MAY ELUCIDATE AND THEREBY STRENGTHEN ADJUDICATION.  ACCORDINGLY, I SET
FORTH THE STEPS BY WHICH I HAVE REACHED CONCURRENCE WITH MY BRETHREN ON
WHAT I DEEM THE ONLY SUBSTANTIAL ISSUE HERE, ON ALL OTHER ISSUES
JOINING THE COURT'S OPINION. 

THE COMING OF THE MACHINE AGE TENDED TO DESPOIL HUMAN PERSONALITY. 
IT TURNED MEN AND WOMEN INTO "HANDS."  THE INDUSTRIAL HISTORY OF THE
EARLY NINETEENTH CENTURY DEMONSTRATED THE HELPLESSNESS OF THE
INDIVIDUAL EMPLOYEE TO ACHIEVE HUMAN DIGNITY IN A SOCIETY SO LARGELY
AFFECTED BY TECHNOLOGICAL ADVANCES.  HENCE THE TRADE UNION MADE ITSELF
INCREASINGLY FELT, NOT ONLY AS AN INDISPENSABLE WEAPON OF SELF-DEFENSE
ON THE PART OF WORKERS BUT AS AN AID TO THE WELL-BEING OF A SOCIETY IN
WHICH WORK IS AN EXPRESSION OF LIFE AND NOT MERELY THE MEANS OF EARNING
SUBSISTENCE.  BUT UNIONIZATION ENCOUNTERED THE SHIBBOLETHS OF A PRE
MACHINE AGE AND THESE WERE REFLECTED IN JURIDICAL ASSUMPTIONS THAT
SURVIVED THE FACTS ON WHICH THEY WERE BASED.  ADAM SMITH WAS TREATED AS
THOUGH HIS GENERALIZATIONS HAD BEEN IMPARTED TO HIM ON SINAI AND NOT AS
A THINKER WHO ADDRESSED HIMSELF TO THE ELIMINATION OF RESTRICTIONS
WHICH HAD BECOME FETTERS UPON INITIATIVE AND ENTERPRISE IN HIS DAY. 
BASIC HUMAN RIGHTS EXPRESSED BY THE CONSTITUTIONAL CONCEPTION OF
"LIBERTY" WERE EQUATED WITH THEORIES OF LAISSEZ FAIRE.  FN1  THE RESULT
WAS THAT ECONOMIC VIEWS OF CONFINED VALIDITY WERE TREATED BY LAWYERS
AND JUDGES AS THOUGH THE FRAMERS HAD ENSHRINED THEM IN THE
CONSTITUTION.  THIS MISAPPLICATION OF THE NOTIONS OF THE CLASSIC
ECONOMISTS AND RESULTING DISREGARD OF THE PERDURING REACH OF THE
CONSTITUTION LED TO MR. JUSTICE HOLMES' FAMOUS PROTEST IN THE LOCHNER
CASE AGAINST MEASURING THE FOURTEENTH AMENDMENT BY MR. HERBERT
SPENCER'S SOCIAL STATICS.  198 U.S. 45, 75.  HAD NOT MR. JUSTICE
HOLMES' AWARENESS OF THE IMPERMANENCE OF LEGISLATION AS AGAINST THE
PERMANENCE OF THE CONSTITUTION GRADUALLY PREVAILED, THERE MIGHT INDEED
HAVE BEEN "HARDLY ANY LIMIT BUT THE SKY" TO THE EMBODIMENT OF "OUR
ECONOMIC OR MORAL BELIEFS" IN THAT AMENDMENT'S "PROHIBITIONS."  BALDWIN
V. MISSOURI, 281 U.S. 586, 595. 

THE ATTITUDE WHICH REGARDED ANY LEGISLATIVE ENCROACHMENT UPON THE
EXISTING ECONOMIC ORDER AS INFECTED WITH UNCONSTITUTIONALITY LED TO
DISRESPECT FOR LEGISLATIVE ATTEMPTS TO STRENGTHEN THE WAGE-EARNER'S
BARGAINING POWER.  WITH THAT ATTITUDE AS A PREMISE, ADAIR V. UNITED
STATES, 208 U.S. 161, AND COPPAGE V. KANSAS, 236 U.S. 1, FOLLOWED
LOGICALLY ENOUGH; NOT EVEN TRUAX V. CORRIGAN, 257 U.S. 312, COULD BE
CONSIDERED UNEXPECTED.  BUT WHEN THE TIDE TURNED, IT WAS NOT MERELY
BECAUSE CIRCUMSTANCES HAD CHANGED AND THERE HAD ARISEN A NEW ORDER WITH
NEW CLAIMS TO DIVINE ORIGIN.  THE OPINION OF MR. JUSTICE BRANDEIS IN
SENN V. TILE LAYERS UNION, 301 U.S. 468, SHOWS THE CURRENT RUNNING
STRONGLY IN THE NEW DIRECTION - THE DIRECTION NOT OF SOCIAL DOGMA BUT
OF INCREASED DEFERENCE TO THE LEGISLATIVE JUDGMENT.  "WHETHER IT WAS
WISE," HE SAID, NOW SPEAKING FOR THE COURT AND NOT IN DISSENT, "FOR THE
STATE TO PERMIT THE UNIONS TO (PICKET) IS A QUESTION OF ITS PUBLIC
POLICY - NOT OUR CONCERN."  ID. AT 481.  LONG BEFORE THAT, IN DUPLEX
PRINTING PRESS CO. V. DEERING, 254 U.S. 443, 488, HE HAD WARNED: 

"ALL RIGHTS ARE DERIVED FROM THE PURPOSES OF THE SOCIETY IN WHICH
THEY EXIST; ABOVE ALL RIGHTS RISES DUTY TO THE COMMUNITY.  THE
CONDITIONS DEVELOPED IN INDUSTRY MAY BE SUCH THAT THOSE ENGAGED IN IT
CANNOT CONTINUE THEIR STRUGGLE WITHOUT DANGER TO THE COMMUNITY.  BUT IT
IS NOT FOR JUDGES TO DETERMINE WHETHER SUCH CONDITIONS EXIST, NOR IS IT
THEIR FUNCTION TO SET THE LIMITS OF PERMISSIBLE CONTEST AND TO DECLARE
THE DUTIES WHICH THE NEW SITUATION DEMANDS.  THIS IS THE FUNCTION OF
THE LEGISLATURE WHICH, WHILE LIMITING INDIVIDUAL AND GROUP RIGHTS OF
AGGRESSION AND DEFENSE, MAY SUBSTITUTE PROCESSES OF JUSTICE FOR THE
MORE PRIMITIVE METHOD OF TRIAL BY COMBAT." 

UNIONS ARE POWERS WITHIN THE STATE.  LIKE THE POWER OF INDUSTRIAL AND
FINANCIAL AGGREGATIONS, THE POWER OF ORGANIZED LABOR SPRINGS FROM A
GROUP WHICH IS ONLY A FRACTION OF THE WHOLE THAT MR. JUSTICE HOLMES
REFERRED TO AS "THE ONE CLUB TO WHICH WE ALL BELONG."  THE POWER OF THE
FORMER IS SUBJECT TO CONTROL, THOUGH, OF COURSE, THE PARTICULAR
INCIDENCE OF CONTROL MAY BE BROUGHT TO TEST AT THE BAR OF THIS COURT. 
E.G., NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197; NORTH
AMERICAN CO. V. S.E.C., 327 U.S. 686.  NEITHER CAN THE LATTER CLAIM
CONSTITUTIONAL EXEMPTION.  EVEN THE GOVERNMENT - THE ORGAN OF THE WHOLE
PEOPLE - IS RESTRICTED BY THE SYSTEM OF CHECKS AND BALANCES ESTABLISHED
BY OUR CONSTITUTION.  THE DESIGNERS OF THAT SYSTEM DISTRIBUTED
AUTHORITY AMONG THE THREE BRANCHES "NOT TO PROMOTE EFFICIENCY BUT TO
PRECLUDE THE EXERCISE OF ARBITRARY POWER."  MR. JUSTICE BRANDEIS,
DISSENTING IN MYERS V. UNITED STATES, 272 U.S. 52, 293.  THEIR CONCERN
FOR INDIVIDUAL MEMBERS OF SOCIETY, FOR WHOSE WELL-BEING GOVERNMENT IS
INSTITUTED, GAVE URGENCY TO THE FEAR THAT CONCENTRATED POWER WOULD
BECOME ARBITRARY.  IT IS A FEAR THAT THE HISTORY OF SUCH POWER, EVEN
WHEN PROFESSEDLY EMPLOYED FOR DEMOCRATIC PURPOSES, HAS HARDLY RENDERED
UNFOUNDED. 

IF CONCERN FOR THE INDIVIDUAL JUSTIFIES INCORPORATING IN THE
CONSTITUTION ITSELF DEVICES TO CURB PUBLIC AUTHORITY, A LEGISLATIVE
JUDGMENT THAT HIS PROTECTION REQUIRES THE REGULATION OF THE PRIVATE
POWER OF UNIONS CANNOT BE DISMISSED AS INSUPPORTABLE.  A UNION IS NO
MORE THAN A MEDIUM THROUGH WHICH INDIVIDUALS ARE ABLE TO ACT TOGETHER;
UNION POWER WAS BEGOTTEN OF INDIVIDUAL HELPLESSNESS.  BUT THAT POWER
CAN COME INTO BEING ONLY WHEN, AND CONTINUE TO EXIST ONLY SO LONG AS,
INDIVIDUAL AIMS ARE SEEN TO BE SHARED IN COMMON WITH THE OTHER MEMBERS
OF THE GROUP.  THERE IS A NATURAL EMPHASIS, HOWEVER, ON WHAT IS SHARED
AND A RESULTING TENDENCY TO SUBORDINATE THE INCONSISTENT INTERESTS AND
IMPULSES OF INDIVIDUALS.  FROM THIS, IT IS AN EASY TRANSITION TO
THINKING OF THE UNION AS AN ENTITY HAVING RIGHTS AND PURPOSES OF ITS
OWN.  AN ARDENT SUPPORTER OF TRADE UNIONS WHO IS ALSO NO LESS A
DISINTERESTED STUDENT OF SOCIETY HAS POINTED OUT THAT "AS SOON AS WE
PERSONIFY THE IDEA, WHETHER IT IS A COUNTRY OR A CHURCH, A TRADE UNION
OR AN EMPLOYERS' ASSOCIATION, WE OBSCURE INDIVIDUAL RESPONSIBILITY BY
TRANSFERRING EMOTIONAL LOYALTIES TO A FICTITIOUS CREATION WHICH THEN
ACTS UPON US PSYCHOLOGICALLY AS AN OBSTRUCTION, ESPECIALLY IN TIMES OF
CRISIS, TO THE CRITICAL EXERCISE OF A REASONED JUDGMENT."  LASKI,
MORRIS COHEN'S APPROACH TO LEGAL PHILOSOPHY, 15 U. OF CHI.  L. REV.
575, 581(1948). 

THE RIGHT OF ASSOCIATION, LIKE ANY OTHER RIGHT CARRIED TO ITS
EXTREME, ENCOUNTERS LIMITING PRINCIPLES.  SEE HUDSON COUNTY WATER CO.
V. MCCARTER, 209 U.S. 349, 355.  AT THE POINT WHERE THE MUTUAL
ADVANTAGE OF ASSOCIATION DEMANDS TOO MUCH INDIVIDUAL DISADVANTAGE, A
COMPROMISE MUST BE STRUCK.  SEE DICEY, LAW AND PUBLIC OPINION IN
ENGLAND 465-66(1905).  WHEN THAT POINT HAS BEEN REACHED - WHERE THE
INTERSECTION SHOULD FALL - IS PLAINLY A QUESTION WITHIN THE SPECIAL
PROVINCE OF THE LEGISLATURE.  THIS COURT HAS GIVEN EFFECT TO SUCH A
COMPROMISE IN SUSTAINING A LEGISLATIVE PURPOSE TO PROTECT INDIVIDUAL
EMPLOYEES AGAINST THE EXCLUSIONARY PRACTICES OF UNIONS.  STEELE V.
LOUISVILLE & N.R. CO., 323 U.S. 192; WALLACE CORP. V. LABOR BOARD, 323
U.S. 248; RAILWAY MAIL ASSN. V. CORSI, 326 U.S. 88; CF. ELGIN, J. &
E.R. CO. V. BURLEY, 325 U.S. 711, 733-34.  THE RATIONALE OF THE
ARIZONA, NEBRASKA, AND NORTH CAROLINA LEGISLATION PROHIBITING UNION
SECURITY AGREEMENTS IS FOUNDED ON A SIMILAR RESOLUTION OF CONFLICTING
INTERESTS.  FN2  UNLESS WE ARE TO TREAT AS UNCONSTITUTIONAL WHAT GOES
AGAINST THE GRAIN BECAUSE IT OFFENDS WHAT WE MAY STRONGLY BELIEVE TO BE
SOCIALLY DESIRABLE, THAT RESOLUTION MUST BE GIVEN RESPECT. 

IT IS URGED THAT THE COMPROMISE WHICH THIS LEGISLATION EMBODIES IS NO
COMPROMISE AT ALL BECAUSE FATAL TO THE SURVIVAL OF ORGANIZED LABOR. 
BUT CAN IT BE SAID THAT THE LEGISLATORS AND THE PEOPLE OF ARIZONA,
NEBRASKA, AND NORTH CAROLINA COULD NOT IN REASON BE SCEPTICAL OF
ORGANIZED LABOR'S INSISTENCE UPON THE NECESSITY TO ITS STRENGTH OF
POWER TO COMPEL RATHER THAN TO PERSUADE THE ALLEGIANCE OF ITS RELUCTANT
MEMBERS?  IN THE PAST FIFTY YEARS THE TOTAL NUMBER OF EMPLOYED,
COUNTING SALARIED WORKERS AND THE SELF-EMPLOYED BUT NOT FARMERS OR FARM
LABORERS, HAS NOT QUITE TREBLED, WHILE TOTAL UNION MEMBERSHIP HAS
INCREASED MORE THAN THIRTY-THREE TIMES; AT THE TIME OF THE OPENSHOP
DRIVE FOLLOWING THE FIRST WORLD WAR, THE RATIO OF ORGANIZED TO
UNORGANIZED NON-AGRICULTURAL WORKERS WAS ABOUT ONE TO NINE, AND NOW IT
IS ALMOST ONE TO THREE.  FN3  HOWEVER NECESSITOUS MAY HAVE BEEN THE
CIRCUMSTANCES OF UNIONISM IN 1898 OR EVEN IN 1923, ITS STATUS IN 1948
PRECLUDES CONSTITUTIONAL CONDEMNATION OF A LEGISLATIVE JUDGMENT,
WHATEVER WE MAY THINK OF IT, THAT THE NEED OF THIS TYPE OF REGULATION
OUTWEIGHS ITS DETRIMENTS.  IT WOULD BE ARBITRARY FOR THIS COURT TO DENY
THE STATES THE RIGHT TO EXPERIMENT WITH SUCH LAWS, ESPECIALLY IN VIEW
OF THE FACT THAT THE RAILROAD BROTHERHOODS HAVE HELD THEIR OWN DESPITE
CONGRESSIONAL PROHIBITION OF UNION SECURITY  FN4  AND IN THE LIGHT OF
THE EXPERIENCE OF COUNTRIES ADVANCED IN INDUSTRIAL DEMOCRACY, SUCH AS
GREAT BRITAIN AND SWEDEN, WHERE DEEPLY ROOTED ACCEPTANCE OF THE
PRINCIPLES OF COLLECTIVE BARGAINING IS NOT REFLECTED IN UNCOMPROMISING
DEMANDS FOR CONTRACTUALLY GUARANTEED SECURITY.  FN5 WHETHER IT IS
PREFERABLE IN THE PUBLIC INTEREST THAT TRADE UNIONS SHOULD BE SUBJECTED
TO STATE INTERVENTION OR LEFT TO THE FREE PLAY OF SOCIAL FORCES,
WHETHER EXPERIENCE HAS DISCLOSED "UNION UNFAIR LABOR PRACTICES" AND, IF
SO, WHETHER LEGISLATIVE CORRECTION IS MORE APPROPRIATE THAN SELF
DISCIPLINE AND THE PRESSURE OF PUBLIC OPINION - THESE ARE QUESTIONS ON
WHICH IT IS NOT FOR US TO EXPRESS VIEWS.  THE VERY LIMITED FUNCTION OF
THIS COURT IS DISCHARGED WHEN WE RECOGNIZE THAT THESE ISSUES ARE NOT SO
UNRELATED TO THE EXPERIENCE AND FEELINGS OF THE COMMUNITY AS TO RENDER
LEGISLATION ADDRESSING ITSELF TO THEM WILFULLY DESTRUCTIVE OF CHERISHED
RIGHTS.  FOR THESE ARE NOT MATTERS, LIKE CENSORSHIP OF THE PRESS OR
SEPARATION OF CHURCH AND STATE, ON WHICH HISTORY, THROUGH THE
CONSTITUTION, SPEAKS SO DECISIVELY AS TO FORBID LEGISLATIVE
EXPERIMENTATION. 

BUT THE POLICY WHICH FINDS EXPRESSION IN THE PROHIBITION OF UNION
SECURITY AGREEMENTS NEED NOT REST SOLELY ON A LEGISLATIVE CONCEPTION OF
THE PUBLIC INTEREST WHICH INCLUDES BUT TRANSCENDS THE SPECIAL CLAIMS OF
TRADE UNIONS.  THE STATES ARE ENTITLED TO GIVE WEIGHT TO VIEWS
COMBINING OPPOSITION TO THE "CLOSED SHOP" WITH LONG-RANGE CONCERN FOR
THE WELFARE OF TRADE UNIONS.  MR. JUSTICE BRANDEIS, FOR EXAMPLE, BEFORE
HE CAME TO THIS COURT, HAD BEEN A STAUNCH PROMOTER OF UNIONISM.  IN
TESTIFYING BEFORE THE COMMISSION ON INDUSTRIAL RELATIONS, HE SAID: 

"I SHOULD SAY TO THOSE EMPLOYERS WHO STAND FOR THE OPEN SHOP, THAT
THEY OUGHT TO RECOGNIZE THAT IT IS FOR THEIR INTERESTS AS WELL AS THAT
OF THE COMMUNITY THAT UNIONS SHOULD BE POWERFUL AND RESPONSIBLE; THAT
IT IS TO THEIR INTERESTS TO BUILD UP THE UNION; TO AID AS FAR AS THEY
CAN IN MAKING THEM STRONGER; AND TO CREATE CONDITIONS UNDER WHICH THE
UNIONS SHALL BE LED BY THE ABLEST AND MOST EXPERIENCED MEN."  FN6  TET
AT THE SAME TIME HE BELIEVED THAT "THE OBJECTIONS, LEGAL, ECONOMIC, AND
SOCIAL, AGAINST THE CLOSED SHOP ARE SO STRONG, AND THE IDEAS OF THE
CLOSED SHOP SO ANTAGONISTIC TO THE AMERICAN SPIRIT, THAT THE INSISTENCE
UPON IT HAS BEEN A SERIOUS OBSTACLE TO UNION PROGRESS."  LETTER OF
SEPT. 6, 1910, TO LAWRENCE F. ABBOTT OF THE OUTLOOK.  FN7  ON ANOTHER
OCCASION HE WROTE, "BUT THE AMERICAN PEOPLE SHOULD NOT, AND WILL NOT,
ACCEPT UNIONISM IF IT INVOLVES THE CLOSED SHOP.  THEY WILL NOT CONSENT
TO THE EXCHANGE OF THE TYRANNY OF THE EMPLOYER FOR THE TYRANNY OF THE
EMPLOYEE."  LETTER OF FEB. 26, 1912, TO LINCOLN STEFFENS.  FN8  IN
SUMMING UP HIS VIEWS ON UNIONISM, HE SAID: 

"IT IS NOT TRUE THAT THE 'SUCCESS OF A LABOR UNION' NECESSARILY MEANS
A 'PERFECT MONOPOLY'.  THE UNION, IN ORDER TO ATTAIN OR PRESERVE FOR
ITS MEMBERS INDUSTRIAL LIBERTY, MUST BE STRONG AND STABLE.  IT NEED NOT
INCLUDE EVERY MEMBER OF THE TRADE.  INDEED, IT IS DESIRABLE FOR BOTH
THE EMPLOYER AND THE UNION THAT IT SHOULD NOT.  ABSOLUTE POWER LEADS TO
EXCESSES AND TO WEAKNESS: NEITHER OUR CHARACTER NOR OUR INTELLIGENCE
CAN LONG BEAR THE STRAIN OF UNRESTRICTED POWER.  THE UNION ATTAINS
SUCCESS WHEN IT REACHES THE IDEAL CONDITION, AND THE IDEAL CONDITION
FOR A UNION IS TO BE STRONG AND STABLE, AND YET TO HAVE IN THE TRADE
OUTSIDE ITS OWN RANKS AN APPRECIABLE NUMBER OF MEN WHO ARE NON
UNIONISTS.  IN ANY FREE COMMUNITY THE DIVERSITY OF CHARACTER, OF
BELIEFS, OF TASTE - INDEED MERE SELFISHNESS - WILL INSURE SUCH A
SUPPLY, IF THE ENJOYMENT OF THIS PRIVILEGE OF INDIVIDUALISM IS
PROTECTED BY LAW.  SUCH A NUCLEUS OF UNORGANIZED LABOR WILL CHECK
OPPRESSION BY THE UNION AS THE UNION CHECKS OPPRESSION BY THE
EMPLOYER."  QUOTED FROM LOUIS D. BRANDEIS' CONTRIBUTION TO A DISCUSSION
ENTITLED PEACE WITH LIBERTY AND JUSTICE IN 2 NAT. CIVIC FEDERATION
REV., NO. 2, PP. 1, 16(MAY 15, 1905). 

MR. BRANDEIS ON THE LONG VIEW DEEMED THE PREFERENTIAL SHOP A MORE
RELIABLE FORM OF SECURITY BOTH FOR UNIONS AND FOR SOCIETY THAN THE
CLOSED SHOP; THAT HE DID SO ONLY SERVES TO PROVE THAT THESE ARE
PRAGMATIC ISSUES NOT APPROPRIATE FOR DOGMATIC SOLUTION. 

WHATEVER ONE MAY THINK OF MR. BRANDEIS' VIEWS, THEY HAVE BEEN
REINFORCED BY THE ADOPTION OF LAWS INSURING AGAINST THAT UNDERCUTTING
OF UNION STANDARDS WHICH WAS ONE OF THE MOST SERIOUS EFFECTS OF A
DISSIDENT MINORITY IN A UNION SHOP.  UNDER INTERPRETATIONS OF THE
NATIONAL LABOR RELATIONS ACT UNDISTURBED BY THE TAFT-HARTLEY ACT,  FN9
AND OF THE RAILWAY LABOR ACT, THE BARGAINING REPRESENTATIVE DESIGNATED
BY A MAJORITY OF EMPLOYEES HAS EXCLUSIVE POWER TO DEAL WITH THE
EMPLOYER ON MATTERS OF WAGES AND WORKING CONDITIONS.  INDIVIDUAL
CONTRACTS, WHETHER ON MORE OR LESS FAVORABLE TERMS THAN THOSE OBTAINED
BY THE UNION, ARE BARRED.  J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332;
ORDER OF R.R. TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, 321 U.S. 342;
MEDO PHOTO SUPPLY CORP. V. LABOR BOARD, 321 U.S. 678; SEE ELGIN, J. &
E.R. CO. V. BURLEY, 325 U.S. 711, 737, N. 35.  UNDER THESE LAWS, A NON
UNION BIDDER FOR A JOB IN A UNION SHOP CANNOT, IF HE WOULD, UNDERCUT
THE UNION STANDARDS. 

EVEN WHERE THE SOCIAL UNDESIRABILITY OF A LAW MAY BE CONVINCINGLY
URGED, INVALIDATION OF THE LAW BY A COURT DEBILITATES POPULAR
DEMOCRATIC GOVERNMENT.  MOST LAWS DEALING WITH ECONOMIC AND SOCIAL
PROBLEMS ARE MATTERS OF TRIAL AND ERROR.  FN10  THAT WHICH BEFORE TRIAL
APPEARS TO BE DEMONSTRABLY BAD MAY BELIE PROPHECY IN ACTUAL OPERATION. 
IT MAY NOT PROVE GOOD, BUT IT MAY PROVE INNOCUOUS.  BUT EVEN IF A LAW
IS FOUND WANTING ON TRIAL, IT IS BETTER THAT ITS DEFECTS SHOULD BE
DEMONSTRATED AND REMOVED THAN THAT THE LAW SHOULD BE ABORTED BY
JUDICIAL FIAT.  SUCH AN ASSERTION OF JUDICIAL POWER DEFLECTS
RESPONSIBILITY FROM THOSE ON WHOM IN A DEMOCRATIC SOCIETY IT ULTIMATELY
RESTS - THE PEOPLE.  IF THE PROPONENTS OF UNION-SECURITY AGREEMENTS
HAVE CONFIDENCE IN THE ARGUMENTS ADDRESSED TO THE COURT IN THEIR
"ECONOMIC BRIEF," THEY SHOULD ADDRESS THOSE ARGUMENTS TO THE
ELECTORATE.  ITS ENDORSEMENT WOULD BE A VINDICATION THAT THE MANDATE OF
THIS COURT COULD NEVER GIVE.  THAT SUCH VINDICATION IS NOT A VAIN HOPE
HAS BEEN RECENTLY DEMONSTRATED BY THE VOTERS OF MAINE, MASSACHUSETTS,
AND NEW MEXICO.  FN11  AND ALTHOUGH SEVERAL STATES IN ADDITION TO THOSE
AT BAR NOW HAVE SUCH LAWS,  FN12  THE LEGISLATURES OF AS MANY OTHER
STATES HAVE, SOMETIMES REPEATEDLY, REJECTED THEM.  FN13  WHAT ONE STATE
CAN REFUSE TO DO, ANOTHER CAN UNDO. 

BUT THERE IS REASON FOR JUDICIAL RESTRAINT IN MATTERS OF POLICY
DEEPER THAN THE VALUE OF EXPERIMENT:  IT IS FOUNDED ON A RECOGNITION OF
THE GULF OF DIFFERENCE BETWEEN SUSTAINING AND NULLIFYING LEGISLATION. 
THIS DIFFERENCE IS THEORETICAL IN THAT THE FUNCTION OF LEGISLATING IS
FOR LEGISLATURES WHO HAVE ALSO TAKEN OATHS TO SUPPORT THE CONSTITUTION,
WHILE THE FUNCTION OF COURTS, WHEN LEGISLATION IS CHALLENGED, IS MERELY
TO MAKE SURE THAT THE LEGISLATURE HAS EXERCISED AN ALLOWABLE JUDGMENT,
AND NOT TO EXERCISE THEIR OWN JUDGMENT, WHETHER A POLICY IS WITHIN OR
WITHOUT "THE VAGUE CONTOURS" OF DUE PROCESS.  THEORY IS REINFORCED BY
THE NOTORIOUS FACT THAT LAWYERS PREDOMINATE IN AMERICAN LEGISLATURES. 
FN14  IN PRACTICE ALSO THE DIFFERENCE IS WIDE.  IN THE DAY-TO-DAY
WORKING OF OUR DEMOCRACY IT IS VITAL THAT THE POWER OF THE NON
DEMOCRATIC ORGAN OF OUR GOVERNMENT BE EXERCISED WITH RIGOROUS SELF
RESTRAINT.  BECAUSE THE POWERS EXERCISED BY THIS COURT ARE INHERENTLY
OLIGARCHIC, JEFFERSON ALL OF HIS LIFE THOUGHT OF THE COURT AS "AN
IRRESPONSIBLE BODY"  FN15  AND "INDEPENDENT OF THE NATION ITSELF." 
FN16  THE COURT IS NOT SAVED FROM BEING OLIGARCHIC BECAUSE IT PROFESSES
TO ACT IN THE SERVICE OF HUMANE ENDS.  AS HISTORY AMPLY PROVES, THE
JUDICIARY IS PRONE TO MISCONCEIVE THE PUBLIC GOOD BY CONFOUNDING
PRIVATE NOTIONS WITH CONSTITUTIONAL REQUIREMENTS, AND SUCH
MISCONCEPTIONS ARE NOT SUBJECT TO LEGITIMATE DISPLACEMENT BY THE WILL
OF THE PEOPLE EXCEPT AT TOO SLOW A PACE.  FN17  JUDGES APPOINTED FOR
LIFE WHOSE DECISIONS RUN COUNTER TO PREVAILING OPINION CANNOT BE VOTED
OUT OF OFFICE AND SUPPLANTED BY MEN OF VIEWS MORE CONSONANT WITH IT.
THEY ARE EVEN FARTHER REMOVED FROM DEMOCRATIC PRESSURES BY THE FACT
THAT THEIR DELIBERATIONS ARE IN SECRET AND REMAIN BEYOND DISCLOSURE
EITHER BY PERIODIC REPORTS OR BY SUCH A MODERN DEVICE FOR SECURING
RESPONSIBILITY TO THE ELECTORATE AS THE "PRESS CONFERENCE."  BUT A
DEMOCRACY NEED NOT RELY ON THE COURTS TO SAVE IT FROM ITS OWN
UNWISDOM.  IF IT IS ALERT - AND WITHOUT ALERTNESS BY THE PEOPLE THERE
CAN BE NO ENDURING DEMOCRACY - UNWISE OR UNFAIR LEGISLATION CAN READILY
BE REMOVED FROM THE STATUTE BOOKS.  IT IS BY SUCH VIGILANCE OVER ITS
REPRESENTATIVES THAT DEMOCRACY PROVES ITSELF. 

OUR RIGHT TO PASS ON THE VALIDITY OF LEGISLATION IS NOW TOO MUCH PART
OF OUR CONSTITUTIONAL SYSTEM TO BE BROUGHT INTO QUESTION.  BUT THE
IMPLICATIONS OF THAT RIGHT AND THE CONDITIONS FOR ITS EXERCISE MUST
CONSTANTLY BE KEPT IN MIND AND VIGOROUSLY OBSERVED.  BECAUSE THE COURT
IS WITHOUT POWER TO SHAPE MEASURES FOR DEALING WITH THE PROBLEMS OF
SOCIETY BUT HAS MERELY THE POWER OF NEGATION OVER MEASURES SHAPED BY
OTHERS, THE INDISPENSABLE JUDICIAL REQUISITE IS INTELLECTUAL HUMILITY,
AND SUCH HUMILITY PRESUPPOSES COMPLETE DISINTERESTEDNESS.  AND SO, IN
THE END, IT IS RIGHT THAT THE COURT SHOULD BE INDIFFERENT TO PUBLIC
TEMPER AND POPULAR WISHES.  MR. DOOLEY'S "TH' SUPREME COORT FOLLOWS TH'
ILICTION RETURNS" EXPRESSED THE WIT OF CYNICISM, NOT THE DEMAND OF
PRINCIPLE.  A COURT WHICH YIELDS TO THE POPULAR WILL THEREBY LICENSES
ITSELF TO PRACTICE DESPOTISM, FOR THERE CAN BE NO ASSURANCE THAT IT
WILL NOT ON ANOTHER OCCASION INDULGE ITS OWN WILL.  COURTS CAN FULFILL
THEIR RESPONSIBILITY IN A DEMOCRATIC SOCIETY ONLY TO THE EXTENT THAT
THEY SUCCEED IN SHAPING THEIR JUDGMENTS BY RATIONAL STANDARDS, AND
RATIONAL STANDARDS ARE BOTH IMPERSONAL AND COMMUNICABLE.  MATTERS OF
POLICY, HOWEVER, ARE BY DEFINITION MATTERS WHICH DEMAND THE RESOLUTION
OF CONFLICTS OF VALUE, AND THE ELEMENTS OF CONFLICTING VALUES ARE
LARGELY IMPONDERABLE.  ASSESSMENT OF THEIR COMPETING WORTH INVOLVES
DIFFERENCES OF FEELING; IT IS ALSO AN EXERCISE IN PROPHECY.  OBVIOUSLY
THE PROPER FORUM FOR MEDIATING A CLASH OF FEELINGS AND RENDERING A
PROPHETIC JUDGMENT IS THE BODY CHOSEN FOR THOSE PURPOSES BY THE
PEOPLE.  ITS FUNCTIONS CAN BE ASSUMED BY THIS COURT ONLY IN DISREGARD
OF THE HISTORIC LIMITS OF THE CONSTITUTION. 

FN1  OF COURSE, THEORY NEVER WHOLLY SQUARED WITH THE FACTS.  EVEN
WHILE LAISSEZ FAIRE DOCTRINES WERE DOMINANT, STATE ACTIVITY IN ECONOMIC
AFFAIRS WAS CONSIDERABLE.  SEE HANDLIN, COMMONWEALTH:  A STUDY OF THE
ROLE OF GOVERNMENT IN THE AMERICAN ECONOMY, MASSACHUSETTS, 1774
1861(1947); HARTZ, ECONOMIC POLICY AND DEMOCRATIC THOUGHT:
PENNSYLVANIA, 1776-1860(1948). 

FN2  SEE, E.G., STATE OF ARIZONA INITIATIVE AND REFERENDUM PUBLICITY
PAMPHLET, 1946(COMPILED AND ISSUED BY THE SECRETARY OF STATE);
TESTIMONY BEFORE THE NEBRASKA STATE LEGISLATIVE COMMITTEE ON LABOR AND
PUBLIC WELFARE, MARCH 21, 1947(TRANSCRIPT OF THE COMMITTEE'S RECORD OF
THE SUBSTANCE OF THE TESTIMONY KINDLY FURNISHED BY THE DEPARTMENT OF
JUSTICE OF NEBRASKA); THE CASE AGAINST THE CLOSED SHOP IN NEBRASKA, A
PAMPHLET PUBLISHED BY THE "RIGHT TO WORK COMMITTEE"; N.C. SESS. LAWS,
1947, C. 328, SEC. 1(PREAMBLE).  AS TO THE SIMILAR PURPOSE OF SIMILAR
LEGISLATION IN OTHER STATES, SEE, E.G., THE OPEN SHOP IN VIRGINIA,
REPORT OF THE VIRGINIA ADVISORY LEGISLATIVE COUNCIL TO THE GOVERNOR OF
VIRGINIA, HOUSE DOC. NO. 2, P. 7(1947); ADDRESS OF WM. M. TUCK TO THE
GENERAL ASSEMBLY AND PEOPLE OF VIRGINIA, EXTRA SESSION, HOUSE DOC. NO.
1, PP. 8-9(1947); TUCUMCARI (N.M.)  DAILY NEWS, OCT. 6, 1948, P. 3,
COL. 3(REPORT OF RADIO ADDRESSES BY SPONSORS OF PROPOSED "RIGHT-TO-WORK
AMENDMENT").    FN3  IN THE FOLLOWING TABLE, "UNION MEMBERSHIP"
INCLUDES ALL MEMBERS OF AFL, CIO, AND INDEPENDENT OR UNAFFILIATED
UNIONS, INCLUDING CANADIAN MEMBERS OF INTERNATIONAL UNIONS WITH
HEADQUARTERS IN THE UNITED STATES; THE "EMPLOYMENT" FIGURES INCLUDE ALL
NON-AGRICULTURAL EMPLOYEES (I.E., WAGE AND SALARY WORKERS), NON
AGRICULTURAL SELF-EMPLOYED, UNPAID FAMILY WORKERS, AND DOMESTICSERVICE
WORKERS. 

          UNION

        MEMBERSHIP                     EMPLOYMENT 

YEAR      (THOUSANDS)              (THOUSANDS) 

1898         467........................ 

1900         791........................   17,826 

1903       1,824........................   20,202 

1908     2,092........................   22,871 

1913       2,661........................   27,031 

1918       3,368........................   33,456 

1923       3,629........................   32,314 

1928       3,567........................ 35,505 

1933       2,857........................   28,670 

1938       8,265........................   34,530 

1943    13,642........................   45,390 

1948      15,600........................   50,400 

THE "UNION MEMBERSHIP" TOTALS, EXCEPT FOR 1948, ARE TAKEN FROM
MEMBERSHIP OF LABOR UNIONS IN THE UNITED STATES, U.S. DEPT. OF LABOR,
BUREAU OF LABOR STATISTICS (MIMEOGRAPHED PAMPHLET); THE "UNION
MEMBERSHIP" AND "EMPLOYMENT" TOTALS FOR 1948 ARE PRELIMINARY ESTIMATES
BY THE BUREAU OF LABOR STATISTICS.  THE "EMPLOYMENT" FIGURES FOR YEARS
UP TO 1928 ARE TAKEN FROM EMPLOYMENT AND UNEMPLOYMENT OF THE LABOR
FORCE, 1900-1940, 2 CONFERENCE BOARD ECONOMIC RECORD 77, 80(1940);
"EMPLOYMENT" FIGURES FOR YEARS SINCE 1929, EXCEPT 1948, AND THE BASIS
UPON WHICH THEY ARE ESTIMATED MAY BE FOUND IN TECHNICAL NOTE, 67
MONTHLY LABOR REV., NO. 1, P. 50(1948). 

FN4  SECTION 2, FOURTH, OF THE 1934 AMENDMENT, 48 STAT. 1187, OF THE
RAILWAY LABOR ACT OF 1926, 44 STAT. 577, 45 U.S.C. SEC. 152, FOURTH,
APPEARS ON ITS FACE TO BAR UNION-SHOP AGREEMENTS, AND IT HAS BEEN SO
INTERPRETED.  40 OPS.  ATTY.  GEN., NO. 59(DEC.  29, 1942).  THE WISDOM
OF SUCH A LEGISLATIVE POLICY IS OF COURSE NOT FOR US TO JUDGE. 

IN THE FOLLOWING TABLE, "MEMBERSHIP OF BROTHERHOODS" INCLUDES THE
BROTHERHOOD OF LOCOMOTIVE ENGINEERS, THE BROTHERHOOD OF LOCOMOTIVE
ENGINEMEN AND FIREMEN, THE ORDER OF RAILWAY CONDUCTORS, AND THE
BROTHERHOOD OF RAILROAD TRAINMEN, WITH THE CANADIAN MEMBERSHIP OF EACH,
BUT NOT RAILROAD EMPLOYEES WHO ARE MEMBERS OF CIO OR INDEPENDENT
UNIONS.  THE 1919 FIGURE FOR "EMPLOYMENT CLASS I RAILROADS" INCLUDES
ALL, NOT MERELY CLASS I, OPERATING CARRIERS. 

        MEMBERSHIP OF                     EMPLOYMENT

        BROTHERHOODS             CLASS I RAILROADS 

YEAR      (THOUSANDS)                (THOUSANDS) 

1919         456........................       1,908 

1924         434........................       1,774 

1929         423........................    1,661 

1934         268........................       1,008 

1939         303........................         988 

1944         442........................       1,415 

1947         450........................       1,352 

THE "MEMBERSHIP OF BROTHERHOODS" FIGURES ARE ESTIMATES MADE AVAILABLE
THROUGH THE KINDNESS OF THE BUREAU OF LABOR STATISTICS.  THOSE FOR 1924
1934 ARE BASED ON WOLMAN, EBB AND FLOW IN TRADE UNIONISM 230-31(1936). 
THE FIGURES FOR "EMPLOYMENT CLASS I RAILROADS" HAVE BEEN OBTAINED FROM
THE I.C.C. ANNUAL REPORTS ENTITLED STATISTICS OF RAILWAYS IN THE UNITED
STATES, THAT FOR 1919 FROM THE 33D ANN. REP. AT 21(1922); THAT FOR 1924
FROM 38TH ANN. REP. AT XXV (1926); THOSE FOR 1929, 1934, AND 1939 FROM
54TH ANN. REP. AT 59(1942); THAT FOR 1944 FROM 60TH ANN. REP. AT
55(1948); THAT FOR 1947 FROM I.C.C., BUREAU OF TRANSPORT ECONOMICS AND
STATISTICS, STATEMENT NO. M-300, WAGE STATISTICS OF CLASS I STEAM
RAILWAYS IN THE UNITED STATES (1947). 

FN5  SEE U.S. DEPT. LABOR, REPORT OF THE COMMISSION ON INDUSTRIAL
RELATIONS IN GREAT BRITAIN 23(1938); U.S. DEPT. LABOR, REPORT OF THE
COMMISSION ON INDUSTRIAL RELATIONS IN SWEDEN 9(1938).  CF.  THE
UNIVERSAL DECLARATION OF HUMAN RIGHTS, ART. 20, CL. 2, ADOPTED BY THE
GENERAL ASSEMBLY OF THE UNITED NATIONS, DEC. 11, 1948, DECLARING THAT
"NO ONE MAY BE COMPELLED TO BELONG TO AN ASSOCIATION." 

FN6  SEN. DOC. NO. 415, 64TH CONG., 1ST SESS. 7681.  FOR OTHER
EXPRESSIONS OF MR. JUSTICE BRANDEIS' SYMPATHY FOR THE CAUSE OF TRADE
UNIONS, SEE ID. AT 7659-60, 7662, 7667; BRANDEIS, THE EMPLOYER AND
TRADES UNIONS, IN BUSINESS - A PROFESSION 13(1914); INDUSTRIAL CO
OPERATION, 3 FILENE CO-OPERATIVE ASSOCIATION ECHO, NO. 3, P. 1(MAY,
1905), REPRINTED IN THE CURSE OF BIGNESS 35(FRAENKEL ED. 1935); BIG
BUSINESS AND INDUSTRIAL LIBERTY, REPRINTED IN ID. AT 38. 

FN7  COPY OBTAINED FROM THE COLLECTION OF BRANDEIS PAPERS AT THE LAW
LIBRARY OF THE UNIVERSITY OF LOUISVILLE, TO WHICH I AM INDEBTED.  THE
LETTER IS QUOTED IN PART IN MASON, BRANDEIS:  A FREE MAN'S LIFE
301(1946).  SEE ALSO TESTIMONY BEFORE THE COMMISSION ON INDUSTRIAL
RELATIONS, OP. CIT. SUPRA, NOTE 6, AT 7680-81.  AS AN ALTERNATIVE TO
THE CLOSED OR UNION SHOP, MR. BRANDEIS ADVOCATED THE "PREFERENTIAL
UNION SHOP," WHICH, APPARENTLY, IS ALSO BARRED BY THE ARIZONA,
NEBRASKA, AND NORTH CAROLINA LAWS.  FOR ACCOUNTS OF THE WORKING OF THE
"PREFERENTIAL UNION SHOP," SEE MOSKOWITZ, THE POWER FOR CONSTRUCTIVE
REFORM IN THE TRADE UNION MOVEMENT, 2 LIFE AND LABOR 10(1912); WINSLOW,
CONCILIATION, ARBITRATION, AND SANITATION IN THE CLOAK, SUIT, AND SKIRT
INDUSTRY IN NEW YORK CITY, 24 BULLETIN OF THE BUREAU OF LABOR, NO. 98,
JAN., 1912, H.R. DOC. NO. 166, 62D CONG., 2D SESS. 203, 215. 

FN8  COPY OBTAINED FROM THE UNIVERSITY OF LOUISVILLE; QUOTED IN PART
IN MASON, OP. CIT. SUPRA, NOTE 7, AT 303-04. 

FN9  SEE H.R. REP. NO. 245, 80TH CONG., 1ST SESS. 17; 93 CONG. REC.
4371(MAY 1, 1947). 

FN10  EXAMPLES OF LEGISLATIVE EXPERIMENTATION UNDERTAKEN TO MEET A
RECOGNIZED NEED WERE THE BANK-DEPOSIT GUARANTY LAWS PASSED IN THE WAKE
OF THE PANIC OF 1907 BY KANSAS, NEBRASKA, AND OKLAHOMA.  DESPITE
SERIOUS DOUBTS OF THEIR WISDOM, THE LAWS WERE SUSTAINED AGAINST DUE
PROCESS ATTACK IN NOBLE STATE BANK V. HASKELL, 219 U.S. 104 AND 575;
SHALLENBERGER V. FIRST STATE BANK, 219 U.S. 114; ASSARIA STATE BANK V.
DOLLEY, 219 U.S. 121.  EXPERIENCE PROVED THE LAWS TO BE UNWORKABLE, SEE
ROBB, GUARANTY OF BANK DEPOSITS IN 2 ENCYC.  SOC.  SCIENCES 417(1930). 
BUT SINCE NO DUE-PROCESS OBSTACLE STOOD IN THE WAY, IT REMAINED
POSSIBLE TO PROFIT BY PAST ERRORS AND ATTEMPT A MORE MATURE SOLUTION OF
THE PROBLEM ON A NATIONAL SCALE.  SEE SEN. REP. NO. 77, 73D CONG., 1ST
SESS. 9-13; H.R. REP. NO. 150, 73D CONG., 1ST SESS. 5-7.  THE RESULT
WAS ESTABLISHMENT OF THE FEDERAL DEPOSIT INSURANCE CORPORATION BY THE
BANKING ACT OF 1933, 48 STAT. 168, 12 U.S.C. SEC. 264.  IF THAT
EXPEDIENT SHOULD PROVE INADEQUATE, THE WAY IS OPEN FOR FURTHER
EXPERIMENTATION.  SEE NOTE, THE GLASS-STEAGALL BANKING ACT OF 1933, 47
HARV. L. REV. 325, 330-32(1933). 

FN11  ON SEPT. 13, 1948, THE VOTERS OF MAINE REJECTED "AN ACT TO
PROTECT THE RIGHT TO WORK AND TO PROHIBIT SECONDARY BOYCOTTS,
SYMPATHETIC STRIKES AND JURISDICTIONAL STRIKES" AND "AN ACT PROTECTING
THE RIGHT OF MEMBERS AND NON-MEMBERS OF LABOR ORGANIZATIONS TO THE
OPPORTUNITY TO WORK."  THE VOTE IN FAVOR OF THE FIRST BILL WAS 46,809;
FOR THE SECOND, 13,676; AGAINST BOTH BILLS, 126,285.  THESE FIGURES
WERE KINDLY FURNISHED BY THE DEPUTY SECRETARY OF STATE OF THE STATE OF
MAINE. 

ON NOV. 2, 1948, THE VOTERS OF MASSACHUSETTS REJECTED A MEASURE
PROHIBITING "THE DENIAL OF THE OPPORTUNITY TO OBTAIN OR RETAIN
EMPLOYMENT BECAUSE OF MEMBERSHIP OR NON-MEMBERSHIP IN A LABOR
ORGANIZATION," BY A VOTE OF 1,290,310 TO 505,575.  REPORT OF THE
EXECUTIVE DEPARTMENT OF THE COMMONWEALTH OF MASSACHUSETTS, NOV. 24,
1948, P. 60. 

ON THE SAME DAY THE VOTERS OF NEW MEXICO REJECTED A SIMILAR BILL BY A
VOTE OF 60,118 TO 41,387(INCOMPLETE RETURNS).  SEE CLOVIS (N.M.)  NEWS
JOURNAL, NOV. 5, 1948, P. 1, COL. 3. 

FN12  ARK. CONST. AMEND. NO. 34, NOV. 7, 1944, AND ACTS OF ARK.,
1947, ACT 101; DEL. LAWS, 1947, C. 196, SEC. 30; FLA. CONST. DECL.  OF
RIGHTS SEC. 12, AS AMENDED NOV. 7, 1944; GA. LAWS, 1947, NO. 140; IOWA
LAWS, 1947, C. 296; LA. GEN. STAT. SEC. 4381.2(DART, 1939); MD. ANN.
CODE GEN. LAWS ART. 100, SEC. 65(1939); NEV. COMP. LAWS SEC.
10473(1929); N.D. LAWS, 1947, C. 243; S.D. CONST. ART. 6, SEC. 2, AS
AMENDED NOV. 1, 1946, AND LAWS, 1947, C. 92; TENN. PUBLIC ACTS, 1947,
C. 36; TEXAS LAWS, 1947, C. 74; VA. ACTS OF ASSEMBLY, 1947, C. 2. 

FOR A VALUABLE DIGEST OF STATE LAWS REGULATING LABOR ACTIVITY SEE
KILLINGSWORTH, STATE LABOR RELATIONS ACTS, APPENDIX A, BY BEVERLEY
KRITZMAN KILLINGSWORTH, AT 267(1948).  IT SHOWS THE VARIETY AND EMPIRIC
CHARACTER OF SUCH LEGISLATION FOR A SINGLE DECADE (1937-47). 

FN13  THE FOLLOWING LIST OF REJECTED ANTI-CLOSED-SHOP LAWS HAS BEEN
COMPILED FROM U.S. DEPT. LABOR, DIVISION OF LABOR STANDARDS,
LEGISLATIVE REPORTS, 1939 TO DATE. 

CALIF.:  A.B. 1560, 1941; S.B. 974, 1941; CONN.:  H.B. 557, S.B. 823,
1939; H.B. 302, 1947; KANS.:  H.B. 256, S.B. 410, 1939; S.C. RES. NO.
10, 1945; KY.:  S.B. 231, 1946; MASS.:  H.B. 864, 1947; MINN.:  S.B.
102, 1947; MISS.:  H.B. 714, 1942; H.C.R. 21, 1944(SEMBLE); H.B. 171,
1946; H.B. 328, 1948; H.B. 1000, 1948; MO.:  S.B. 144, 1945; N.H.:
H.B. 225, 1945; OHIO:  H.B. 49, 1947; UTAH:  S.J.R. 15, H.J.R. 15,
1947. 

FN14  SEE, E.G., 25 U.S. NEWS, NO. 22, P. 11(NOV.  26, 1948). 

FN15  LETTER TO CHARLES HAMMOND, AUG. 18, 1821, 15 WRITINGS OF THOMAS
JEFFERSON 330, 331(MEMORIAL ED., 1904). 

FN16  LETTER TO SAMUEL KERCHEVAL, JULY 12, 1816, 15 ID. AT 32, 34. 
FOR SIMILAR EXPRESSIONS OF JEFFERSON'S ALARM AT WHAT HE FELT TO BE THE
DANGEROUS ENCROACHMENT OF THE JUDICIARY UPON THE OTHER FUNCTIONS OF
GOVERNMENT, SEE HIS LETTERS TO WILLIAM B. GILES, APRIL 20, 1807, 11 ID.
AT 187, 191; TO CAESAR RODNEY, SEPT. 25, 1810, 12 ID. AT 424, 425; TO
JOHN TAYLOR, MAY 28, 1816, 15 ID. AT 17, 21; TO SPENCER ROANE, SEPT. 6,
1819, 15 ID. AT 212; TO THOMAS RITCHIE, DEC. 25, 1820, 15 ID. AT 297;
TO JAMES PLEASANTS, DEC. 26, 1821, 12 WORKS OF THOMAS JEFFERSON, 213,
214(FEDERAL ED., 1905); TO WILLIAM T. BARRY, JULY 2, 1822, 15 WRITINGS,
SUPRA, AT 388; TO A. CORAY, OCT. 31, 1823, 15 ID. AT 480, 487; TO
EDWARD LIVINGSTON, MARCH 25, 1825, 16 ID. AT 112.  SEE ALSO THE PASSAGE
OF JEFFERSON'S AUTOBIOGRAPHY REPRINTED IN 1 WRITINGS, SUPRA, AT 120
22.  AND SEE COMMAGER, MAJORITY RULE OR MINORITY RIGHTS 28-38(1943). 

FN17  IN TIME, OF COURSE, CONSTITUTIONAL OBSTACLES MAY DISAPPEAR OR
BE REMOVED.  YET ALMOST TWENTY YEARS ELAPSED BETWEEN INVALIDATION OF
THE INCOME TAX IN POLLOCK V. FARMERS' LOAN & TRUST CO., 158 U.S. 601,
AND ADOPTION OF THE SIXTEENTH AMENDMENT.  AND IT TOOK TWENTY YEARS TO
ESTABLISH THE CONSTITUTIONALITY OF A MINIMUM WAGE FOR WOMEN:  IT WAS
PUT IN JEOPARDY BY AN EQUALLY DIVIDED COURT IN STETTLER V. O'HARA, 243
U.S. 629, AND FOUND UNCONSTITUTIONAL IN ADKINS V. CHILDREN'S HOSPITAL,
261 U.S. 525, WHICH WAS NOT OVERRULED UNTIL WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379, 400.  THE FRUSTRATION OF POPULAR GOVERNMENT,
MOREOVER, IS NOT CONFINED TO THE SPECIFIC LAW STRUCK DOWN; ITS BACKWASH
DROWNS UNNUMBERED PROJECTS THAT MIGHT OTHERWISE BE PUT TO TRIAL. 

MR. JUSTICE RUTLEDGE, CONCURRING* . 

*(THIS IS ALSO A CONCURRENCE IN NO. 47, LINCOLN FEDERAL LABOR UNION
V. NORTHWESTERN IRON & METAL CO., AND NO. 34, WHITAKER V. NORTH
CAROLINA, DECIDED TOGETHER, ANTE, P. 525.) 

I CONCUR IN THE COURT'S JUDGMENT IN NO. 34, WHITAKER V. NORTH
CAROLINA.  THE APPELLANTS WERE CONVICTED UNDER A WARRANT WHICH CHARGED
ONLY, IN EFFECT, THAT THEY HAD VIOLATED THE STATUTE "BY EXECUTING A
WRITTEN AGREEMENT OR CONTRACT" FOR A CLOSED OR UNION SHOP.  FN1  THERE
WAS NEITHER CHARGE NOR EVIDENCE THAT THE EMPLOYER, AFTER THE STATUTE
BECAME EFFECTIVE, HAD REFUSED EMPLOYMENT TO ANY PERSON BECAUSE HE WAS
NOT A MEMBER OF A UNION.  THE CHARGE, THEREFORE, AND THE CONVICTION
WERE LIMITED TO THE MAKING OF THE CONTRACT.  NO OTHER PROVISION OF THE
STATUTE IS NOW INVOLVED, AS THE STATE'S ATTORNEY GENERAL CONCEDED,
INDEED AS HE STRONGLY URGED, IN THE ARGUMENT HERE.  AS AGAINST THE
CONSTITUTIONAL OBJECTIONS RAISED TO THIS APPLICATION OF THE STATUTE, I
AGREE THAT THE LEGISLATURE HAS POWER TO PROSCRIBE THE MAKING OF SUCH
CONTRACTS, AND ACCORDINGLY JOIN IN THE JUDGMENT AFFIRMING THE
CONVICTIONS. 

IN NO. 27, AMERICAN FEDERATION OF LABOR V. AMERICAN SASH & DOOR
COMPANY, AND IN NO. 47, LINCOLN FEDERAL LABOR UNION V. NORTHWESTERN
IRON & METAL COMPANY, AS AGAINST THE CONSTITUTIONAL QUESTIONS NOW
RAISED, I AM ALSO IN AGREEMENT WITH THE COURT'S DECISION, BUT SUBJECT
TO THE FOLLOWING RESERVATION.  BECAUSE NO STRIKE HAS BEEN INVOLVED IN
ANY OF THE STATES OF FACT, NO QUESTION HAS BEEN PRESENTED IN ANY OF
THESE CASES IMMEDIATELY INVOLVING THE RIGHT TO STRIKE OR CONCERNING THE
EFFECT OF THE THIRTEENTH AMENDMENT.  YET THE ISSUES SO CLOSELY APPROACH
TOUCHING THAT RIGHT AS IT EXISTS OR MAY EXIST UNDER THAT AMENDMENT THAT
THE POSSIBLE EFFECT OF THE DECISIONS UPON IT HARDLY CAN BE IGNORED. 
FN2  STRIKES HAVE BEEN CALLED THROUGHOUT UNION HISTORY IN DEFENSE OF
THE RIGHT OF UNION MEMBERS NOT TO WORK WITH NONUNION MEN.  IF TODAY'S
DECISION SHOULD BE CONSTRUED TO PERMIT A STATE TO FORECLOSE THAT RIGHT
BY MAKING ILLEGAL THE CONCERTED REFUSAL OF UNION MEMBERS TO WORK WITH
NONUNION WORKERS, AND MORE ESPECIALLY IF THE DECISION SHOULD BE TAKEN
AS GOING SO FAR AS TO PERMIT A STATE TO ENJOIN SUCH A STRIKE,  FN3  I
SHOULD WANT A COMPLETE AND THOROUGH REARGUMENT OF THESE CASES BEFORE
DECIDING SO MOMENTOUS A QUESTION.    BUT THE RIGHT TO PROHIBIT
CONTRACTS FOR UNION SECURITY IS ONE THING.  THE RIGHT TO FORCE UNION
MEMBERS TO WORK WITH NONUNION WORKERS IS ENTIRELY ANOTHER.  BECAUSE OF
THIS DIFFERENCE, I EXPRESSLY RESERVE JUDGMENT UPON THE LATTER QUESTION
UNTIL IT IS SQUARELY AND INESCAPABLY PRESENTED.  ALTHOUGH THIS
RESERVATION IS NOT MADE EXPRESSLY BY THE COURT, I DO NOT UNDERSTAND ITS
OPINION TO FORECLOSE THIS QUESTION. 

FN1  THE WARRANT, INSOFAR AS IS MATERIAL, CHARGED THAT THE APPELLANTS
HAD ENTERED INTO " ... AN ILLEGAL COMBINATION OR CONSPIRACY IN
RESTRAINT OF THE RIGHT TO WORK AND OF TRADE OR COMMERCE IN THE STATE OF
NORTH CAROLINA AND AGAINST THE PUBLIC POLICY OF THE STATE OF NORTH
CAROLINA, BY EXECUTING A WRITTEN AGREEMENT OR CONTRACT BY AND BETWEEN
SAID EMPLOYER AND SAID LABOR UNIONS AND ORGANIZATIONS OR COMBINATIONS,
WHEREBY PERSONS NOT MEMBERS OF SAID UNIONS OR ORGANIZATIONS ARE DENIED
THE RIGHT TO WORK FOR SAID EMPLOYER, OR WHEREBY MEMBERSHIP IS MADE A
CONDITION OF EMPLOYMENT OR CONTINUATION OF SAID EMPLOYMENT BY SAID
EMPLOYER AND WHEREBY SAID NAMED UNIONS ACQUIRED AN EMPLOYMENT MONOPOLY
IN ANY AND ALL ENTERPRISES WHICH MAY BE UNDERTAKEN BY SAID EMPLOYER ARE
REQUIRED TO BECOME OR REMAIN A MEMBER OF A LABOR UNION OR LABOR
ORGANIZATION AS A CONDITION OF EMPLOYMENT OR CONTINUATION OF EMPLOYMENT
BY SAID EMPLOYER WHEREBY SAID UNIONS ACQUIRE AN EMPLOYMENT MONOPOLY IN
ANY AND ALL ENTERPRISES ENTERED INTO BY SAID EMPLOYER IN VIOLATION OF
HOUSE BILL #229, SESSION 1947, GENERAL ASSEMBLY OF NORTH CAROLINA,
CHAPTER 328, 1947 SESSION LAWS OF NORTH CAROLINA, AND PARTICULARLY
N.C.  ...  " 

FN2  SEE NOTE 3. 

FN3  THE SYLLOGISM MIGHT WELL BE:  THE DECISIONS IN THE PRESENT CASES
PERMIT A STATE TO MAKE "ILLEGAL" ANY DISCRIMINATION AGAINST NONUNION
WORKERS ON ACCOUNT OF THAT STATUS IN RELATION TO SECURING OR RETAINING
EMPLOYMENT; STRIKES FOR "ILLEGAL OBJECTS" ARE "UNLAWFUL"; "UNLAWFUL"
STRIKES MAY BE ENJOINED; A STRIKE BY UNION MEMBERS AGAINST WORKING WITH
NONUNION EMPLOYEES IS A STRIKE FOR AN "ILLEGAL OBJECT"; THEREFORE SUCH
A STRIKE MAY BE ENJOINED. 

MR. JUSTICE MURPHY CONCURS IN THIS OPINION INSOFAR AS IT APPLIES TO
NOS. 34 AND 47. 
..END :



JUNGERSEN V. OSTBY & BARTON CO., 335 U.S. 560 


ARGUED NOVEMBER 10, 1948.  - DECIDED JANUARY 3, 1949.  - 163 F.2D 312,
AFFIRMED IN PART AND REVERSED IN PART.  - 166 F.2D 807, AFFIRMED. 


1.  ALL OF THE CLAIMS OF JUNGERSEN PATENT NO. 2,118,468, FOR A "METHOD
OF CASTING ARTICLES OF INTRICATE DESIGN AND A PRODUCT THEREOF," HELD
INVALID FOR WANT OF INVENTION.  PP. 561-568. 

2.  AN EXAMINATION OF THE PRIOR ART AS IT EXISTED AT THE TIME OF THIS
ALLEGED INVENTION REVEALS THAT EVERY STEP IN THE JUNGERSEN METHOD WAS
ANTICIPATED; AND IT APPEARS THAT JUNGERSEN'S COMBINATION OF THESE STEPS
WAS, IN ITS ESSENTIAL FEATURES, ALSO WELL KNOWN IN THE ART. PP. 563
564. 

3.  WHERE CENTRIFUGAL FORCE WAS COMMON AS A MEANS OF INTRODUCING
MOLTEN METAL INTO A SECONDARY MOULD, ITS USE IN AN INTERMEDIATE STEP TO
FORCE MOLTEN WAX INTO A PRIMARY MOULD WAS NOT AN EXEMPLIFICATION OF
INVENTIVE GENIUS SUCH AS IS NECESSARY TO RENDER A PATENT VALID.  PP.
564-567. 

4.  IT IS NOT SUFFICIENT TO SAY THAT JEWELRY CASTING IS A SEPARATE
AND DISTINCT ART WHERE THE PATENT IS NOT RESTRICTED TO THE CASTING OF
JEWELRY AND THE PRIOR IMPROVEMENTS IN THE ART OF CASTING WERE SO
OBVIOUSLY APPLICABLE TO THE CASTING OF JEWELRY THAT THE PATENTEE WAS
BOUND BY KNOWLEDGE OF THEM.  P. 567. 

5.  WHERE INVENTION IS PLAINLY LACKING, THE FACT THAT A PROCESS HAS
ENJOYED CONSIDERABLE COMMERCIAL SUCCESS DOES NOT RENDER A PATENT ON IT
VALID.  PP. 567-568. 

JUNGERSEN V. OSTBY & BARTON CO. ET AL. 

NO. 7.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT* . 

*TOGETHER WITH NO. 8, OSTBY & BARTON CO. ET AL. V. JUNGERSEN, ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT,
AND NO. 48, JUNGERSEN V. BADEN ET AL., ON CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. 

NOS. 7 AND 8.  IN A SUIT FOR A DECLARATORY JUDGMENT THAT A PATENT WAS
INVALID AND NOT INFRINGED, DEFENDANT COUNTERCLAIMED, ALLEGING
INFRINGEMENT AND SEEKING AN INJUNCTION.  THE DISTRICT COURT HELD
CERTAIN CLAIMS VALID BUT NOT INFRINGED AND CERTAIN OTHER CLAIMS
INVALID.  65 F.SUPP.  652.  THE COURT OF APPEALS AFFIRMED.  163 F.2D
312.  THIS COURT DENIED PETITIONS OF BOTH PARTIES FOR CERTIORARI, 332
U.S. 851, 852; BUT, AFTER A CONFLICTING DECISION IN ANOTHER CIRCUIT IN
NO. 48, VACATED THOSE ORDERS AND GRANTED CERTIORARI.  334 U.S. 835. 
NO. 7 AFFIRMED AND NO. 8 REVERSED, P. 568. 

NO. 48.  IN A SUIT FOR DAMAGES, PROFITS AND INJUNCTIVE RELIEF FOR
ALLEGED INFRINGEMENT OF A PATENT, THE DISTRICT COURT HELD ALL CLAIMS OF
THE PATENT INVALID.  69 F.SUPP.  922.  THE COURT OF APPEALS AFFIRMED. 
166 F.2D 807.  THIS COURT GRANTED CERTIORARI.  334 U.S. 835.  AFFIRMED,
P. 568. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS THE VALIDITY OF UNITED STATES PATENT NO. 2,118,468
WHICH COVERS A "METHOD OF CASTING ARTICLES OF INTRICATE DESIGN AND A
PRODUCT THEREOF." 

THE PATENT WAS GRANTED TO JUNGERSEN ON MAY 24, 1938.  IN 1941, OSTBY
AND BARTON COMPANY INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY AN ACTION FOR A DECLARATORY JUDGMENT THAT
THE PATENT WAS INVALID AND NOT INFRINGED.  JUNGERSEN, BY COUNTERCLAIM,
ALLEGED INFRINGEMENT AND SOUGHT AN INJUNCTION.  THE DISTRICT COURT HELD
CLAIMS 1-4 VALID BUT NOT INFRINGED AND CLAIMS 5-6 INVALID BECAUSE TOO
BROAD.  65 F.SUPP.  652.  THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT AFFIRMED ON THE REASONING OF THE DISTRICT COURT.  163
F.2D 312.  WE DENIED PETITIONS BY BOTH PARTIES FOR CERTIORARI.  332
U.S. 851, 852. 

IN 1944, JUNGERSEN FILED SUIT AGAINST BADEN IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN WHICH HE
ALLEGED INFRINGEMENT OF THE PATENT AND SOUGHT DAMAGES, PROFITS, AND
INJUNCTIVE RELIEF.  THAT COURT HELD ALL THE CLAIMS INVALID.  69
F.SUPP.  922.  THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT AFFIRMED.  166 F.2D 807. 

VACATING THE PRIOR ORDERS WHICH DENIED IT IN THE OSTBY AND BARTON
PROCEEDING, WE GRANTED CERTIORARI IN BOTH CASES IN ORDER TO SETTLE THE
CONFLICT.  334 U.S. 835.  FN1  SINCE THE PARTIES DO NOT ASSERT ERROR IN
THOSE PORTIONS OF THE LOWER COURTS' DECISIONS WHICH CONCERN
INFRINGEMENT, THE SOLE ISSUE BEFORE US IS THE VALIDITY OF THE PATENT. 

THE METHOD DESCRIBED IN THE JUNGERSEN PATENT, CLAIMS 1-4, CONSISTS OF
THE FOLLOWING STEPS:  (1) THE PRODUCTION OF A MODEL OF THE ARTICLE TO
BE CAST, (2) THE FORMATION AROUND THIS MODEL OF A "PRIMARY MOULD" OF
PLASTIC MATERIAL "SUCH AS RUBBER" WHICH IS "CAPABLE OF ASSUMING
INTIMATE CONTACT WITH THE INTRICATE DESIGNS OF THE MODEL" AND WHICH
WILL "RETAIN A LASTING SHAPE THROUGH SUBSEQUENT TREATMENT," (3) THE
CASTING IN THIS MOULD OF A PATTERN CONSISTING OF MOLTEN WAX OR OTHER
MATERIAL OF A LOW MELTING POINT WHICH IS MADE TO ASSUME THE MINUTE
CONFIGURATIONS OF THE MOULD BY MEANS OF CENTRIFUGAL FORCE, (4) THE
REMOVAL OF THIS PATTERN (WHICH HAS BECOME SOLID UPON COOLING) FROM THE
PRIMARY MOULD, AND THE FORMATION AROUND IT OF A "SECONDARY MOULD" OF
REFRACTORY MATERIAL, SUCH AS PLASTER OF PARIS, WHICH "WILL ASSUME ALL
THE CONTOURS OF ITS INTRICATE DESIGN," (5) THE REMOVAL OF THE WAX OR
SIMILAR MATERIAL FROM THE SECONDARY MOULD, OR "INVESTMENT" AS IT IS
CALLED, BY THE APPLICATION OF HEAT, THUS MELTING IT OUT, AND FINALLY
(6) THE CASTING OF THE DESIRED MOLTEN METAL INTO THE CAVITY IN THE
INVESTMENT BY THE APPLICATION OF CENTRIFUGAL FORCE AS IN (3), ABOVE. 

THIS METHOD IS CAPABLE OF PRODUCING "SMALL METAL ARTICLES,
PARTICULARLY ARTICLES OF INTRICATE DETAIL SUCH AS JEWELRY WHICH
FREQUENTLY ARE DESIGNED WITH HOLLOWS, UNDERCUT PORTIONS AND
PERFORATIONS, SO THAT THEY WILL HAVE A SMOOTH CLEAN SURFACE FAITHFUL IN
DETAIL TO THE ORIGINAL AND FREE FROM IMPERFECTIONS OR HOLES, AND TO
ENABLE SUCH RESULT BEING ACCOMPLISHED WITH THE MINIMUM OF EXPENSE." 
THE PATENTEE CLAIMS THAT IT MADE POSSIBLE THE ACCURATE REPRODUCTION OF
INTRICATE DESIGNS IN FAR LESS TIME THAN HAD PREVIOUSLY BEEN REQUIRED. 

CLAIM 5 DESCRIBES IN MORE GENERAL TERMS THE FORMATION OF A PRIMARY
MOULD AROUND THE ORIGINAL PATTERN, THE REMOVAL OF THE PATTERN FROM THE
MOULD, THE INTRODUCTION OF MOLTEN WAX INTO THE MOULD "BY FORCE
SUFFICIENT TO DEPOSIT THE MATERIAL INTO THE DEPRESSION OR DEPRESSIONS
OF THE PRIMARY MOULD" AND THE EMPLOYMENT OF THE WAX PATTERN FOR THE
MANUFACTURE OF A CASTING MOULD.  CLAIM 6 COVERS "AN ARTICLE OF JEWELRY"
OF INTRICATE DESIGN MADE BY THE PROCESS DISCLOSED BY CLAIM 5.  IT
DESCRIBES THE ARTICLE OF JEWELRY ONLY BY REFERENCE TO THE PROCESS BY
WHICH IT IS MANUFACTURED.  OBVIOUSLY IF THE FIRST FOUR CLAIMS ARE
INVALID, THE LAST TWO MUST LIKEWISE FALL. 

AN EXAMINATION OF THE PRIOR ART AS IT EXISTED AT THE TIME OF THIS
ALLEGED INVENTION REVEALS THAT EVERY STEP IN THE JUNGERSEN METHOD WAS
ANTICIPATED.  WE THINK THAT HIS COMBINATION OF THESE STEPS WAS, IN ITS
ESSENTIAL FEATURES, ALSO WELL KNOWN IN THE ART. 

JUNGERSEN'S PROCESS IS NOTHING MORE THAN A REFINEMENT OF A METHOD
KNOWN AS THE "CIRE PERDUE" OR "LOST WAX" PROCESS, WHICH WAS IN USE AS
EARLY AS THE SIXTEENTH CENTURY N2.  THE TREATISES OF BENVENUTO CELLINI
ON GOLDSMITHING AND SCULPTURE, PP. 87-89, REVEALS A PROCESS WHICH
CONSISTS OF FILLING A PRIMARY MOULD WITH MOLTEN WAX, BUILDING A
SECONDARY MOULD AROUND THE WAX MODEL THUS OBTAINED, MELTING THE WAX
FROM THIS MOULD AND POURING THE DESIRED METAL IN THE SECONDARY MOULD. 
IN 1904 UNITED STATES PATENT NO. 748,996, ISSUED TO SPENCER, DESCRIBED
A SUBSTANTIALLY IDENTICAL PROCESS IN WHICH THE PRIMARY MOULD WAS MADE,
AS IN THE PATENT HERE INVOLVED, BY VULCANIZING RUBBER AROUND THE
ORIGINAL MODEL OR PATTERN.  IN ENGLAND A PROCESS SIMILAR TO SPENCER'S
HAD BEEN THE BASIS OF A PATENT ISSUED TO HASELTINE IN 1875.  FN3 

THE ABOVE-DESCRIBED DEVELOPMENTS IN THE PRIOR ART SUGGESTED NO
LIMITATION OF THEIR APPLICABILITY TO ANY PARTICULAR TYPE OF CASTING. 
SPENCER STATED THAT THE PURPOSE OF HIS PROCESS WAS TO PRODUCE ACCURATE
REPLICAS OF THE ORIGINAL PATTERN, WHICH COULD BE OF "INTRICATE FORM"
AND WHICH COULD "HAVE ANY NUMBER OF SIDES OR SURFACES OR UNDERCUT OR
PROJECTING PARTS."  HASELTINE DESCRIBED HIS OBJECT AS THE PRODUCTION OF
"A CASTING IN METAL FROM A GIVEN PATTERN, WHICH CASTING WILL BE A
PERFECT COPY OF SUCH PATTERN WITHOUT REQUIRING MUCH, IF ANY, AFTER
FINISHING OR CHISELLING WORK." 

THE PATENTEE CLAIMS THAT THE INVENTION IN HIS COMBINATION LIES IN THE
USE, IN CONJUNCTION WITH THE "LOST WAX" PROCESS, OF CENTRIFUGAL FORCE. 
LONG BEFORE THE ISSUANCE OF THIS PATENT, HOWEVER, THOSE SKILLED IN THE
ART RECOGNIZED AND DISCLOSED THE NECESSITY FOR THE APPLICATION OF FORCE
IN ORDER TO MAKE MOLTEN MATERIALS FIT SNUGLY THE INTRICATE DETAILS OF
THE MOULD.  HASELTINE APPLIED PRESSURE OF ABOUT TWENTY POUNDS PER
SQUARE INCH TO CAUSE THE MOLTEN METAL "TO LIE TO THE DENSE MOULD AND
PRODUCE A SHARP AND WELL DEFINED CASTING."  HE ACCOMPLISHED THIS BY
INTRODUCING THE METAL INTO THE MOULD THROUGH A PIPE ABOUT SIX FEET IN
HEIGHT.  FN4  UNITED STATES PATENT NO. 1,238,789 ISSUED TO KRALUND IN
1917 TEACHES THE APPLICATION OF PRESSURE TO THE WAX AND THE MOLTEN
METAL BY MEANS OF AN ORDINARY PRESSURE DIE CASTING APPARATUS. 

WHETHER THESE TYPES OF PRESSURE ARE THE EQUIVALENT OF CENTRIFUGAL
FORCE WE NEED NOT DECIDE SINCE IT IS EVIDENT FROM PATENTS AND
PUBLICATIONS THAT THE USE OF THE LATTER WAS WELL KNOWN IN THE ART. IN
1923 MCMANUS PATENTED A CASTING MACHINE WHICH WAS ADAPTED "TO THE
CASTING OF JEWELRY, SUCH AS GOLD RINGS, SMALL TRINKETS, ETC., WHERE
METAL OR OTHER DIES OR MOULDS MAY BE ...  FILLED BY CENTRIFUGAL CASTING
METHODS."  UNITED STATES PATENT NO. 1,457,040.  HE CLAIMED "A MEANS FOR
TRANSFERRING FUSED MATERIAL FROM THE FURNACE (IN WHICH THE MATERIAL WAS
MELTED) TO THE MOULD UNDER THE ACTION OF CENTRIFUGAL FORCE."  IN A
PAPER ON CURRENT CASTING METHODS WHICH HE PRESENTED TO THE INSTITUTE OF
METALS IN ENGLAND IN 1926, ONE GEORGE MORTIMER, WITH REFERENCE TO THE
DIFFICULTY IN FILLING A MOULD BY GRAVITY, STATED: 

"IT WAS NATURAL, THEREFORE, THAT ENGINEERS SHOULD EARLY TURN THEIR
ATTENTION TO SOME FORM OF ARTIFICIAL PRESSURE, WHEREBY THE MOULD COULD
BE FILLED BY FORCE, AND SOUNDNESS AND CLEAN DEFINITION SEEMINGLY
ASSURED. 

"THE SIMPLEST FORM OF ARTIFICIAL PRESSURE IS THAT OF CENTRIFUGAL
FORCE  ...  "  FN5  CENTRIFUGAL FORCE WAS COMMONLY USED IN DENTAL
CASTING PRIOR TO 1938.  FN6 

THUS IT IS CLEAR THAT THE "LOST WAX" PROCESS, THE USE OF A FLEXIBLE
PRIMARY MOULD, AND THE USE OF CENTRIFUGAL FORCE WERE ALL OLD IN THE ART
OF CASTING.  THE PATENTEE CLAIMS THAT THE CENTRIFUGAL FORCING OF WAX
INTO THE PRIMARY MOULD HAD NEVER BEFORE BEEN COMBINED WITH THE OTHER
FEATURES OF HIS PROCESS.  WE THINK THIS FACT IS OF NO LEGAL
SIGNIFICANCE.  WHERE CENTRIFUGAL FORCE WAS COMMON AS A MEANS OF
INTRODUCING MOLTEN METAL INTO THE SECONDARY MOULD, ITS USE IN AN
INTERMEDIATE STEP TO FORCE MOLTEN WAX INTO THE PRIMARY MOULD WAS NOT AN
EXEMPLIFICATION OF INVENTIVE GENIUS SUCH AS IS NECESSARY TO RENDER THE
PATENT VALID.  CF. LINCOLN ENGINEERING CO. V. STEWART-WARNER CORP., 303
U.S. 545; CUNO ENGINEERING CORP. V. AUTOMATIC DEVICES CORP., 314 U.S.
84.  THE PATENTEE HIMSELF ADMITTED THAT THE SAME PRINCIPLE WAS EMPLOYED
IN BOTH STEPS.  FN7  THUS JUNGERSEN EMPLOYED IN HIS CLAIMED INVENTION
WELL-KNOWN SKILLS AND PRACTICES IN A MANNER AND FOR A PURPOSE LONG
FAMILIAR IN THE FIELD OF CASTING.  HIS CLAIMED IMPROVEMENT IS THEREFORE
NOT PATENTABLE. 

THE PATENTEE CONTENDS, HOWEVER, THAT JEWELRY CASTING IS A SEPARATE
AND DISTINCT ART; THAT CONSEQUENTLY THE ADVANCEMENTS IN OTHER TYPES OF
CASTING MENTIONED ABOVE CANNOT BE VIEWED AS THE PRIOR ART IN REFERENCE
TO THIS PATENT.  THE ANSWER TO THIS IS TWOFOLD.  IN THE FIRST PLACE,
THIS PATENT IS NOT RESTRICTED TO THE CASTING OF JEWELRY.  ITS STATED
OBJECT IS TO "FACILITATE THE CASTING OF SMALL METAL ARTICLES,
PARTICULARLY ARTICLES OF INTRICATE DETAIL SUCH AS JEWELRY  ...  "
SECONDLY WE THINK THAT THE IMPROVEMENTS IN THE ART OF CASTING WHICH
WERE DISCLOSED BY THE PATENTS AND PUBLICATIONS DISCUSSED ABOVE WERE SO
OBVIOUSLY APPLICABLE TO THE TYPE OF CASTING SOUGHT TO BE EFFECTED BY
JUNGERSEN THAT HE WAS BOUND BY KNOWLEDGE OF THEM.  MANDEL BROS. V.
WALLACE, 335 U.S. 291, 295-96. 

NUMEROUS LICENSES UNDER THE PATENT WERE ISSUED IN THE UNITED STATES
AND OTHER COUNTRIES.  THE FACT THAT THIS PROCESS HAS ENJOYED
CONSIDERABLE COMMERCIAL SUCCESS, HOWEVER, DOES NOT RENDER THE PATENT
VALID.  IT IS TRUE THAT IN CASES WHERE THE QUESTION OF PATENTABLE
INVENTION IS A CLOSE ONE, SUCH SUCCESS HAS WEIGHT IN TIPPING THE SCALES
OF JUDGMENT TOWARD PATENTABILITY.  GOODYEAR TIRE & RUBBER CO. V. RAY-O
VAC CO., 321 U.S. 275, 279, AND CASES CITED IN FOOTNOTE 5 THEREOF. 
WHERE, AS HERE, HOWEVER, INVENTION IS PLAINLY LACKING, COMMERCIAL
SUCCESS CANNOT FILL THE VOID.  DOW CHEMICAL CO. V. HALLIBURTON CO., 324
U.S. 320, 330; TOLEDO PRESSED STEEL CO. V. STANDARD PARTS, INC., 307
U.S. 350, 356-57; TEXTILE MACHINE WORKS V. HIRSCH CO., 302 U.S. 490,
498-99; 1 WALKER, PATENTS (DELLER, 1937) SEC. 44.  LITTLE PROFIT WOULD
COME FROM DETAILED EXAMINATION OF THE CASES CITED ABOVE OR THOSE
INDICATED BY REFERENCE.  COMMERCIAL SUCCESS IS REALLY A MAKEWEIGHT
WHERE THE PATENTABILITY QUESTION IS CLOSE. 

INCREASED POPULAR DEMAND FOR JEWELRY OR ALERTNESS IN EXPLOITATION OF
THE PROCESS MAY WELL HAVE PLAYED AN IMPORTANT PART IN THE WIDE USE OF
THE PATENT.  WE CANNOT ATTRIBUTE JUNGERSEN'S SUCCESS SOLELY OR EVEN
LARGELY TO THE NOVELTY OF HIS PROCESS. 

WE HOLD ALL THE CLAIMS OF THE PATENT INVALID FOR WANT OF INVENTION. 
NOS. 7 AND 48 AFFIRMED.  NO. 8 REVERSED. 

FN1  IN NO. 7 WE ARE ASKED TO CONSIDER THE DECISION OF THE COURT OF
APPEALS FOR THE THIRD CIRCUIT AS TO CLAIMS 5 AND 6; IN NO. 8, THE
DECISION OF THAT COURT AS TO CLAIMS 1 THROUGH 4; AND IN NO. 48, THE
DECISION OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT AS TO ALL THE
CLAIMS OF THE PATENT. 

FN2  20 ENCYCLOPAEDIA BRITANNICA (1948), P. 229. 

FN3  BRITISH PATENT NO. 2467. 

A FRENCH PUBLICATION BY VERLEY ENTITLED "LA GRAVURE, ETC." (1924)
DESCRIBES IN DETAIL ALL OF THE ELEMENTS OF JUNGERSEN'S PROCESS EXCEPT
THE USE OF CENTRIFUGAL FORCE. 

FN4  "LA GRAVURE, ETC.," SUPRA, NOTE 3, ADVOCATES THE USE OF STEAM
PRESSURE. 

FN5  35 JOURNAL OF THE INSTITUTE OF METALS, 371, 377. 

FN6  "DENTAL-CASTING METHODS EMPLOY FOUR DISTINCT PRINCIPLES; NAMELY,
GRAVITY, CENTRIFUGAL, VACUUM, AND PRESSURE.  ... 

"THE CENTRIFUGAL METHOD HAS THE ADVANTAGE OF GREAT SIMPLICITY, AND
FILLS THE MOLD BY THE FORCE EXERTED IN THROWING THE METAL OFF ON A
TANGENT WHILE BEING REVOLVED ABOUT A CENTER."  STERN, DIE-CASTING
PRACTICE (1ST ED., 1930), P. 10.    FN7  AN EXCERPT FROM THE TESTIMONY
FOLLOWS: 

"Q.  AND WHEN THE MACHINE IS REVOLVED, WHEN IT IS CENTRIFUGED, IT
MAKES NO DIFFERENCE WHETHER IT BE MOLTEN WAX OR MOLTEN METAL, DOES IT,
IN THE FACT THAT IT THROWS OUT THE MOLTEN MATERIAL INTO THE GATE?  A.
IT WOULD THROW OUT ANYTHING OF WEIGHT IF IT IS MADE FREE TO LEAVE. 

"Q.  AND THAT APPLIES TO WAX AS WELL AS METAL, DOES IT NOT?  A. IT
APPLIES TO WAX AND METAL, BUT IN A GREATER AMOUNT TO THE METAL THAN TO
THE WAX. 

"Q.  BUT THEY BOTH OPERATE IN THE SAME WAY UNDER THE INFLUENCE OF THE
CENTRIFUGAL MACHINE?  A. THE SAME PRINCIPLE IS USED, YES. 

"Q.  AND THE MOLTEN MATERIAL IN BOTH CASES IS INTRODUCED INTO THE
MOLD?  A. YES." 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE BURTON JOINS,
DISSENTING. 

THIS IS NOT ONE OF THOSE PATENT CONTROVERSIES THAT CARRY SERIOUS
CONSEQUENCES FOR AN IMPORTANT INDUSTRY AND THEREBY FOR THE GENERAL
PUBLIC.  THE CASE DOES, HOWEVER, RAISE BASIC ISSUES REGARDING THE
JUDICIARY'S ROLE IN OUR EXISTING PATENT SYSTEM.  THESE ISSUES WERE
STATED BY JUDGE LEARNED HAND WHEN THE LITIGATION WAS BEFORE THE COURT
OF APPEALS FOR THE SECOND CIRCUIT.  SINCE THIS COURT'S OPINION HAS NOT,
TO MY MIND, MET THE QUESTIONS WHICH HE RAISED, AND SINCE I CANNOT
IMPROVE UPON WHAT JUDGE LEARNED HAND WROTE, I ADOPT HIS OPINION AS
MINE. 

"IN JUNGERSEN'S BRITISH PATENT, AS MY BROTHERS TRULY SAY, HE BASED
HIS INVENTION SOLELY UPON FORCING THE WAX AND THE METAL INTO COMPLETELY
INTIMATE CONTACT WITH EVERY CREVICE OF THE MOULD, AND FOR THIS HE
DISCLOSED A CENTRIFUGE AS THE MEANS.  MOREOVER, IT HAD ALREADY BEEN
KNOWN BY OTHER MOULDERS OF FINE PATTERNS THAT THE METAL MIGHT NOT FILL
ALL THE SPACES NECESSARY FOR PERFECT REPRODUCTION.  FOR EXAMPLE, IN
1873 HASELTINE DISCLOSED A DEVICE WHICH SET UP A PRESSURE OF TWENTY
POUNDS TO THE SQUARE INCH; AND THIS TOO IN A 'LOST WAX' PROCESS.  TRUE,
HE DID NOT DISCLOSE USING SIMILAR PRESSURE FOR THE WAX, AND HE DID NOT
USE A CENTRIFUGE; BUT MCMANUS USED A CENTRIFUGE TO FORCE FUSIBLE METAL
INTO ALL THE CREVICES OF THE MOULD, AND THAT TOO IN A 'LOST WAX'
PROCESS, THE KNOWLEDGE OF WHICH HE APPEARS TO HAVE ASSUMED, FOR HE DOES
NOT DISCLOSE HOW TO MAKE THE WAX MODEL.  KRALUND ALSO SHOWED A PRESSURE
DIE-CASTING PROCESS, AS APPLIED TO THE 'LOST WAX' METHOD; AND HE USED
PRESSURE TO FORCE HIS WAX INTO INTIMATE CONNECTION WITH THE FIRST DIE
AS WELL AS UPON THE MOLTEN METAL OF THE FINAL CASTING:  BUT HIS
ORIGINAL DIE WAS OF STEEL AND HE DOES NOT DESCRIBE ITS MANUFACTURE. 

"NEVERTHELESS, IN SPITE OF ALL THESE APPROACHES, AND OF THE FACT THAT
ALL THE ELEMENTS OF THE DISCLOSURE WERE TO BE FOUND IN THE PRIOR ART,
IT REMAINS TRUE THAT JUNGERSEN'S PROCESS IN ITS ENTIRETY HAD NEVER BEEN
ASSEMBLED BEFORE; NO ONE HAD EVER THOUGHT OF COMBINING ALL THOSE STEPS
IN A SINGLE SEQUENCE.  TRUE, HAD THE COMBINATION NOT BEEN NEW IN THIS
OBJECTIVE SENSE, IT COULD NOT HAVE BEEN PATENTED MERELY BY TURNING IT
TO A NEW USE; AND THAT WOULD HAVE BEEN SO, ALTHOUGH IT MIGHT HAVE TAKEN
AS MUCH ORIGINALITY TO SEE THAT IT COULD BE PUT TO THE NEW USE, AS IT
TAKES TO MAKE AN OUTSTANDING INVENTION.  IT WOULD HAVE BEEN A FINAL
ANSWER THAT CONGRESS HAS NEVER SEEN FIT TO EXTEND ITS CONSTITUTIONAL
POWER TO 'DISCOVERIES' AS SUCH, AND HAS LIMITED PATENTS TO AN 'ART,
MACHINE, MANUFACTURE, OR COMPOSITION OF MATTER,'  FN1  AS WE HAVE OFTEN
SAID - THE LAST TIME IN OLD TOWN RIBBON & CARBON CO., INC., V. COLUMBIA
RIBBON & CARBON MANUFACTURING CO. FN2  MY POINT IS THAT, IF THERE IS A
NEW COMBINATION, HOWEVER TRIFLING THE PHYSICAL CHANGE MAY BE, NOTHING
MORE IS REQUIRED THAN THAT, TO TAKE THE STEP OR STEPS, ADDED
'INVENTION,' IS NEEDED; AND 'INVENTION,' WHATEVER ELSE IT MAY BE, IS
WITHIN THE CATEGORY OF MENTAL ACTIVITIES AND OF THOSE ALONE.  IN THE
CASE AT BAR THE ANSWER MUST THEREFORE DEPEND UPON HOW WE SHALL APPRAISE
THE DEPARTURE FROM WHAT HAD GONE BEFORE IN TERMS OF CREATIVE
IMAGINATION; INDEED, I DO NOT UNDERSTAND WHAT OTHER TEST COULD BE
RELEVANT. 

"IF THAT BE THE TEST, I SUBMIT THAT JUNGERSEN'S PROCESS MEETS IT.
FROM TIME IMMEMORIAL JEWELRY HAD BEEN MANUFACTURED BY THE EARLIER
PROCESSES; SO THAT THE NEED, IF NEED THERE WAS, HAD EXISTED FOR YEARS. 
MOREOVER, TWO OF THOSE EARLIER PROCESSES - 'CUTTLEFISH CASTING AND SAND
CASTING' - HAVE NOW BECOME 'OF LITTLE COMMERCIAL SIGNIFICANCE'; 'DIE
STAMPING' AND JUNGERSEN'S PROCESS 'ARE THE ONLY SUBSTANTIAL METHODS NOW
COMMERCIALLY USED'; AND IN THE MANUFACTURE OF A HUNDRED RINGS OR LESS
'DIE-STAMPING' IS MORE EXPENSIVE.  HAD SOME TECHNOLOGICAL ADVANCE HELD
UP THE CHANGE, AND HAD JUNGERSEN MADE IT ONLY A SHORT TIME AFTER THE
OBSTACLE HAD BEEN REMOVED, I SHOULD AGREE THAT THE INFERENCE OF
OUTSTANDING ORIGINALITY WOULD HAVE BEEN GREATLY WEAKENED; BUT THAT WAS
NOT THE FACT.  INDEED, IT IS THE VERY BASIS OF THE DEFENCE THAT FOR
YEARS ALL THE ELEMENTS LAY OPEN AND AVAILABLE, AND THAT NOTHING WAS
NEEDED BUT THE PALTRY MODIFICATION WHICH HAS PROVED SO FRUITFUL.  TO
THAT I MAKE THE ANSWER ON WHICH COURTS IN THE PAST USED TO RING THE
CHANGES WITH WEARISOME ITERATION.  IF ALL THE INFORMATION WAS AT HAND,
WHY WAS THE NEW COMBINATION SO LONG DELAYED?  WHAT BETTER TEST OF
INVENTION CAN ONE ASK THAN THE DETECTION OF THAT WHICH OTHERS HAD ALL
ALONG HAD A STRONG INCENTIVE TO DISCOVER, BUT HAD FAILED TO SEE, THOUGH
ALL THE WHILE IT LAY BENEATH THEIR EYES?  TRUE, THE WHOLE APPROACH TO
THE SUBJECT HAS SUFFERED A SHIFT WITHIN THE LAST DECADE OR SO, WHICH I
RECOGNIZE THAT WE SHOULD ACCEPT AS AUTHORITATIVE.  MOREOVER, I AM NOT
AWARE OF THE SLIGHTEST BIAS IN FAVOR OF THE PRESENT SYSTEM; I SHOULD
ACCEPT WITH EQUANIMITY A NEW SYSTEM OR NO SYSTEM.  HOWEVER, I CONFESS
MYSELF BAFFLED TO KNOW HOW TO PROCEED, IF WE ARE AT ONCE TO PROFESS TO
APPLY THE SYSTEM AS IT IS, AND YET IN EVERY CONCRETE INSTANCE WE ARE TO
DECIDE AS THOUGH IT DID NOT EXIST AS IT IS.  IN THE CASE AT BAR, I CAN
ONLY SAY THAT, SO FAR AS I HAVE BEEN ABLE TO COMPREHEND THOSE FACTORS
WHICH HAVE BEEN HELD TO DETERMINE INVENTION, AND TO WHICH AT LEAST LIP
SERVICE CONTINUES TO BE PAID, THE COMBINATION IN SUIT HAS EVERY HALL
MARK OF A VALID PATENT." 

JUDGE HAND'S OPINION IS REPORTED AT 166 F.2D 811. 

FN1  SEC. 31, TITLE 35 U.S.C.A. 

FN2  2 CIR., 159 F.2D 379, 382. 

MR. JUSTICE JACKSON, DISSENTING. 

I THINK THIS PATENT MEETS THE PATENT STATUTE'S EVERY REQUIREMENT. 
AND CONFRONTED BY THIS RECORD AN INDUSTRY HERETOFORE GALLED BY FUTILITY
AND FRUSTRATION MAY WELL BE AMAZED AT THE COURT'S DISMISSAL OF
JUNGERSEN'S INGENIOUS AND SUCCESSFUL EFFORTS. 

OF COURSE, COMMERCIAL SUCCESS WILL NOT FILL ANY VOID IN AN INVALID
PATENT.  BUT IT MAY FILL THE VOID IN OUR UNDERSTANDING OF WHAT THE
INVENTION HAS MEANT TO THOSE WHOSE LIVELIHOOD, UNLIKE OUR OWN, DEPENDS
UPON THEIR KNOWLEDGE OF THE ART. CONCEDEDLY, IN THIS HIGH-PRESSURE AGE
SALES VOLUME MAY REFLECT ONLY POWERFUL PROMOTION OR MARKETING MAGIC,
AND ITS SIGNIFICANCE AS AN INDEX OF NOVELTY OR UTILITY MAY RIGHTLY BE
SUSPECTED.  BUT JUNGERSEN'S SUCCESS WAS GROUNDED NOT IN THE GULLIBILITY
OF THE PUBLIC BUT IN THE HARD-HEADED JUDGMENT OF A HIGHLY COMPETITIVE
AND CRITICAL IF NOT HOSTILE INDUSTRY.  KNOWING WELL ITS NEED FOR AND
ITS FAILURE TO ACHIEVE IMPROVEMENTS ON AVAILABLE PROCESSES, THAT
INDUSTRY DISCARDED THEM, ADOPTED THIS OUTSIDER'S INVENTION, AND MADE IT
A COMMERCIAL SUCCESS. 

IT WOULD TAKE A SINGULAR SELF-ASSURANCE ON THE PART OF ONE WHO KNOWS
AS LITTLE OF THIS ART AS I DO, OR AS I CAN LEARN IN THE FEW HOURS THAT
CAN BE GIVEN TO CONSIDERATION OF THIS CASE, TO IGNORE THE JUDGMENT OF
THESE COMPETITORS WHO GREW UP IN THE INDUSTRY AND SAY THAT THEY DID NOT
KNOW SOMETHING NEW AND USEFUL WHEN THEY SAW IT. AND IF BENVENUTO
CELLINI'S AGE-OLD WRITINGS ARE SO REVEALING TO US LAYMEN OF THE
APPELLATE BENCH, IT IS HARD TO SEE WHY THIS PRACTICAL-MINDED INDUSTRY
WHICH THE COURT SAYS WAS FOLLOWING CELLINI FAILED THROUGH ALL THE YEARS
TO GET HIS MESSAGE. 

IT WOULD NOT BE DIFFICULT TO CITE MANY INSTANCES OF PATENTS THAT HAVE
BEEN GRANTED, IMPROPERLY I THINK, AND WITHOUT ADEQUATE TESTS OF
INVENTION BY THE PATENT OFFICE.  BUT I DOUBT THAT THE REMEDY FOR SUCH
PATENT OFFICE PASSION FOR GRANTING PATENTS IS AN EQUALLY STRONG PASSION
IN THIS COURT FOR STRIKING THEM DOWN SO THAT THE ONLY PATENT THAT IS
VALID IS ONE WHICH THIS COURT HAS NOT BEEN ABLE TO GET ITS HANDS ON. 

I AGREE WITH THE OPINION OF JUDGE LEARNED HAND BELOW. 
..END :










AYRSHIRE CORP. V. UNITED STATES, 335 U.S. 573 


NO. 25.  ARGUED NOVEMBER 12, 15, 1948.  - DECIDED JANUARY 3, 1949.  -
AFFIRMED. 


TWO PROCEEDINGS UNDER SEC. 15(7) OF THE INTERSTATE COMMERCE ACT
INVOLVED RAIL RATES ON BITUMINOUS COAL BETWEEN PRODUCING AREAS LONG
GROUPED FOR RATE-MAKING PURPOSES IN INDIANA, ILLINOIS AND WESTERN
KENTUCKY, AND DESTINATIONS IN NORTHERN ILLINOIS AND BELOIT, WIS.  ONE
RESULTED FROM A PROPOSAL OF CERTAIN CARRIERS TO INCREASE RATES BETWEEN
CERTAIN POINTS.  THE OTHER WAS AN INVESTIGATION INSTITUTED BY THE
COMMISSION INTO EXISTING INTRASTATE RATES BETWEEN CERTAIN POINTS IN
ILLINOIS, TO DETERMINE WHETHER THEY WERE DISCRIMINATORY, PREFERENTIAL
AND PREJUDICIAL AGAINST INTERSTATE COMMERCE AND IN FAVOR OF INTRASTATE
COMMERCE.  AFTER HEARING AND CONSIDERING BOTH PROCEEDINGS TOGETHER ON
THE SAME RECORD, THE COMMISSION FOUND THAT CERTAIN EXISTING AND
PROPOSED RATES WOULD RESULT IN UNJUST DISCRIMINATION AND UNDUE
PREFERENCE AND PREJUDICE IN VIOLATION OF SECS. 2 AND 3 OF THE ACT.  IT
ISSUED AN ORDER IN WHICH IT DISAPPROVED A DUAL BASIS OF RATES,
SPECIFIED RATES WHICH IT APPROVED, AND RULED THAT THE PROPOSED RATES
WOULD BE UNREASONABLE TO THE EXTENT THAT THEY EXCEEDED THE APPROVED
RATES.  HELD: 

1.  IN THESE PROCEEDINGS, THE COMMISSION HAD AUTHORITY TO DETERMINE
THE LAWFULNESS OF EXISTING RATES AS WELL AS THE PROPOSED NEW RATES. 
PP. 581-583. 

2. THE COMMISSION WAS JUSTIFIED IN CONCLUDING THAT THE PRESENT AND
PROPOSED SYSTEM OF DUAL RATES, UNDER WHICH SINGLE-LINE RATES FROM
CERTAIN POINTS IN A GROUP TO CERTAIN DESTINATIONS WERE SUBSTANTIALLY
LOWER THAN JOINT-LINE RATES FROM OTHER POINTS IN THE SAME GROUP TO THE
SAME DESTINATIONS, WAS AN UNJUST DISCRIMINATION WITHIN THE MEANING OF
SEC. 2 AND WOULD CREATE AN UNDUE PREFERENCE AND PREJUDICE AS BETWEEN
DIFFERENT POINTS IN THE SAME GROUPS IN VIOLATION OF SEC. 3(1) OF THE
ACT.  PP. 583-587. 

(A)  THE PREFERENTIAL TREATMENT OF SHIPPERS AT SOME POINTS IN A GROUP
AS AGAINST SHIPPERS AT OTHER POINTS IN THE SAME GROUP WAS AN UNJUST
DISCRIMINATION WITHIN THE MEANING OF SEC. 2.  PP. 585-587. 

(B)  IN VIEW OF THE FACT THAT THE WHOLE SYSTEM OF RATE MAKING ON A
GROUP BASIS WAS NOT CHALLENGED IN THESE PROCEEDINGS, THE COMMISSION'S
CONCLUSIONS THAT THE ESTABLISHMENT OF A DUAL BASIS OF RATES FOR THIS
COAL-MINING REGION DEFEATS THE SYSTEM OF GROUPING BY UNJUSTLY
DISCRIMINATING AGAINST SOME SHIPPERS AND IN FAVOR OF OTHERS IN THE SAME
GROUP AND THAT THIS UNJUST DISCRIMINATION CAN BE AVOIDED ONLY BY THE
ESTABLISHMENT AND MAINTENANCE OF A SINGLE RATE BASIS CANNOT BE
CHALLENGED SUCCESSFULLY ON THIS RECORD.  P. 587. 

3.  THE COMMISSION WAS JUSTIFIED IN FINDING THAT THE DIFFERENTIALS
MAINTAINED BY CERTAIN CARRIERS AS BETWEEN CERTAIN OF THE INDIANA GROUPS
CONSTITUTED AN UNDUE PREFERENCE AND PREJUDICE IN VIOLATION OF SEC. 3(1)
OF THE ACT AND IN PRESCRIBING FAIR AND REASONABLE DIFFERENTIALS BETWEEN
THE INDIANA GROUPS AND THE ILLINOIS GROUPS.  PP. 588-593. 

(A)  IN THE CIRCUMSTANCES OF THIS CASE, THE COMMISSION WAS JUSTIFIED
IN USING AVERAGES AS A MEASURE OF THE RELATIONSHIP BETWEEN THE RATES OF
THE INDIANA GROUPS ON THE ONE HAND AND THE ILLINOIS GROUPS ON THE
OTHER, EVEN THOUGH THE RESULTING DIFFERENTIALS WERE NOT BASED STRICTLY
UPON THE FACTOR OF DISTANCE.  PP. 588-591. 

(B)  IN CONSIDERING THESE RATES, THE COMMISSION WAS JUSTIFIED IN
TAKING INTO CONSIDERATION THE ELEMENT OF COMPETITION.  P. 592. 

(C)  IT ALSO HAS THE CONSUMER INTEREST TO SAFEGUARD AS WELL AS THAT
OF PRODUCERS AND CARRIERS.  P. 592. 

(D) IN FASHIONING A DIFFERENTIALLY RELATED AND FINELY BALANCED RATE
STRUCTURE IN THIS COMPLEX SITUATION, THE COMMISSION HAS A BROAD
DISCRETION IN ACCOMMODATING THE FACTORS OF TRANSPORTATION CONDITIONS,
DISTANCE AND COMPETITION, SO LONG AS NO STATUTORY REQUIREMENT IS
OVERLOOKED.  P. 593. 

4.  HAVING UNDERTAKEN TO CURB UNLAWFUL PRACTICES BY PRESCRIBING JUST
AND REASONABLE RATES PURSUANT TO SECS. 15(1) AND 15(7), THE COMMISSION
DID NOT EXCEED ITS AUTHORITY BY FAILING TO AFFORD THE CARRIERS
ALTERNATIVE METHODS OF REMOVING THE DISCRIMINATION WHICH WAS FOUND TO
EXIST.  PP. 593-594. 

5.  HAVING FOUND A FORBIDDEN DISCRIMINATION OR PREFERENCE IN RATES,
THE COMMISSION COULD REMOVE IT WITHOUT FINDING THAT THE PREFERENTIAL
RATES WERE NONCOMPENSATORY.  P. 594. 

AYRSHIRE COLLIERIES CORP. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF INDIANA. 

HAVING FOUND THAT CERTAIN EXISTING AND PROPOSED RAIL RATES ON
SHIPMENTS OF BITUMINOUS COAL WOULD RESULT IN UNJUST DISCRIMINATION AND
UNDUE PREFERENCE AND PREJUDICE, THE INTERSTATE COMMERCE COMMISSION
ISSUED AN ORDER IN WHICH IT DISAPPROVED A DUAL BASIS OF RATES,
SPECIFIED RATES WHICH IT APPROVED, AND RULED THAT THE PROPOSED RATES
WOULD BE UNREASONABLE TO THE EXTENT THAT THEY EXCEEDED THE APPROVED
RATES.  263 I.C.C. 179.  A THREE-JUDGE DISTRICT COURT DISMISSED TWO
COMPLAINTS SEEKING TO SET THIS ORDER ASIDE.  ON APPEAL TO THIS COURT,
AFFIRMED, P. 594. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL, 38 STAT. 219, 220, 28 U.S.C. SECS. 45 AND 47A, 43
STAT. 938, 28 U.S.C. SEC. 345(4), FROM A DECREE OF A THREE-JUDGE
DISTRICT COURT, WHICH DISMISSED AS WITHOUT MERIT TWO COMPLAINTS SEEKING
TO SET ASIDE A RATE ORDER OF THE INTERSTATE COMMERCE COMMISSION.  FN1 

BITUMINOUS COAL IS PRODUCED IN GREAT QUANTITIES IN INDIANA, ILLINOIS
AND WESTERN KENTUCKY.  IN EACH STATE THERE ARE PRODUCING AREAS THAT
HAVE LONG BEEN GROUPED FOR RATE-MAKING PURPOSES.  THESE GROUPS OR
DISTRICTS ARE THE BRAZIL-CLINTON, THE LINTON-SULLIVAN, THE PRINCETON
AYRSHIRE, AND THE BOONVILLE IN INDIANA; THE NORTHERN ILLINOIS, THE
FULTON-PEORIA, THE SPRINGFIELD, THE BELLEVILLE, AND THE SOUTHERN IN
ILLINOIS; AND THE WESTERN IN KENTUCKY.  GROUP RATES HAVE BEEN
ESTABLISHED BY THE CARRIERS SO THAT ALL MINES WITHIN EACH PRODUCING
AREA ARE ACCORDED THE SAME RATES TO THE SAME CONSUMING DESTINATIONS. 
FN2  THE RESULT IS THAT COMPARATIVE DISTANCES OF THE MINES IN ONE
PRODUCING AREA FROM A PARTICULAR CONSUMING DESTINATION ARE COMMONLY
DISREGARDED IN FIXING THE GROUP RATE.  BUT THE COMMISSION HAS LONG
CONCLUDED THAT SUCH A SYSTEM OF RATE MAKING FOR COAL AND OTHER NATURAL
RESOURCES ENCOURAGES COMPETITIVE PRODUCTION AND A MORE EVEN DEVELOPMENT
OF AN AREA.  FN3 

THE PRESENT LITIGATION INVOLVES GROUP RATES FOR CARLOAD LOTS FROM THE
FOREGOING GROUPS IN INDIANA, ILLINOIS, AND KENTUCKY TO ROCKFORD,
FREEPORT, DIXON AND OTHER POINTS IN NORTHERN ILLINOIS AND TO BELOIT,
WISCONSIN. 

THE ORDER UNDER ATTACK IN THIS CASE RESULTED FROM TWO PROCEEDINGS
BEFORE THE COMMISSION WHICH WERE HEARD AND CONSIDERED TOGETHER ON THE
SAME RECORD.  ONE WAS AN INVESTIGATION IN WHICH CARRIERS PROPOSED
CERTAIN INCREASES IN RATES FOR CARLOAD LOTS OF BITUMINOUS COAL FROM
SOME OF THE INDIANA GROUPS TO BELOIT, WISCONSIN, AND FROM ALL OF THE
INDIANA GROUPS TO DESIGNATED ILLINOIS DESTINATIONS.  LIKE INCREASES IN
THE ILLINOIS INTRASTATE RATES TO THE SAME ILLINOIS DESTINATIONS WERE
ALSO SOUGHT.  THESE PROPOSED INCREASES HAVE BEEN SUSPENDED UNTIL
DISPOSITION OF THE PROCEEDING.  THE OTHER PROCEEDING WAS AN
INVESTIGATION INSTITUTED BY THE COMMISSION, ON COMPLAINT, INTO THE
INTRASTATE CARLOAD RATES FROM THE ILLINOIS GROUPS TO THE SAME ILLINOIS
DESTINATIONS TO DETERMINE WHETHER THEY WERE DISCRIMINATORY,
PREFERENTIAL, AND PREJUDICIAL AGAINST INTERSTATE COMMERCE AND IN FAVOR
OF INTRASTATE COMMERCE. 

THESE PROCEEDINGS ARE ONLY A RECENT CHAPTER IN THE PROBLEM OF
ADJUSTMENT OF THE COAL RATES FOR THIS REGION. 

THE ILLINOIS COMMERCE COMMISSION ORDERED A REDUCTION OF THE
INTRASTATE RATES IN 1930.  THIS RESULTED IN A REDUCTION OF CERTAIN
INTERSTATE RATES FROM INDIANA AND WESTERN KENTUCKY TO ROCKFORD AND
OTHER NORTHERN ILLINOIS POINTS.  THE INTERSTATE COMMERCE COMMISSION
REFUSED TO REQUIRE AN INCREASE IN INTRASTATE RATES TO THE IMPORTANT
ILLINOIS DESTINATIONS INVOLVED HERE UNLESS THE RATES FROM THE INDIANA
GROUPS TO THE SAME DESTINATIONS WERE INCREASED.  FN4  SUBSEQUENTLY THE
COMMISSION FOUND THAT THE RATES FROM THE ILLINOIS, INDIANA AND WESTERN
KENTUCKY GROUPS TO BELOIT, WISCONSIN, WERE IN THE MAIN NOT UNREASONABLE
BUT THAT THEY WERE UNDULY PREJUDICIAL TO BELOIT AND UNDULY PREFERENTIAL
TO ROCKFORD, IF THEY EXCEEDED THE RATES FROM THE SAME ORIGINS TO
ROCKFORD BY MORE THAN 25 CENTS.  THE COMMISSION ALSO FOUND ON FURTHER
HEARING THAT THE RATES FROM CERTAIN OF THE ILLINOIS GROUPS TO BELOIT,
WISCONSIN, WERE NOT UNREASONABLE BUT THAT THEY WERE UNDULY PREJUDICIAL
TO BELOIT AND UNDULY PREFERENTIAL TO ROCKFORD TO THE EXTENT THAT THEY
EXCEEDED THE ROCKFORD RATES BY MORE THAN 15 CENTS.  THE COMMISSION
ALLOWED THE CARRIERS TO INCREASE THE RATES TO ROCKFORD OR TO REDUCE THE
RATES TO BELOIT, OR BOTH, IN ORDER TO RELATE THE RATES TO BELOIT 15
CENTS OVER ROCKFORD.  BUT THE INTRASTATE RATES TO ROCKFORD HAD BEEN
PRESCRIBED AS A MAXIMUM BY THE ILLINOIS COMMISSION AND THEREFORE COULD
NOT BE INCREASED.  ALSO TO INCREASE THE INTERSTATE RATES WITHOUT
SIMILAR INCREASES FROM THE ILLINOIS GROUPS WOULD BE DISRUPTIVE OF THE
RATE STRUCTURE BUILT ON THE GROUP BASIS.  ACCORDINGLY THE RATES TO
BELOIT WERE REDUCED.  FN5 

THE CARRIERS SUBSEQUENTLY PROPOSED INCREASES IN THE RATES FROM THE
INDIANA GROUPS AND THE ILLINOIS GROUPS TO ROCKFORD AND OTHER ILLINOIS
POINTS AND, WITH CERTAIN EXCEPTIONS, FROM THE INDIANA GROUPS TO BELOIT,
WISCONSIN.  THESE INCREASES CONFORMED TO THE 15-CENT RELATION BETWEEN
ROCKFORD AND BELOIT BUT PLACED THE RATES (BOTH INTERSTATE AND
INTRASTATE) MORE NEARLY AT THE GENERAL LEVEL OF INTERSTATE RATES IN
THAT TERRITORY. 

ONE OTHER FACT MUST BE MENTIONED IF THE PRESENT POSTURE OF THIS RATE
PROBLEM IS TO BE UNDERSTOOD.  AFTER THE ILLINOIS INTRASTATE RATES WERE
REDUCED IN 1930 AND AFTER THE CARRIERS' UNSUCCESSFUL EFFORT TO HAVE THE
EARLIER ONES REESTABLISHED, THE MILWAUKEE ROAD PROPOSED TO REDUCE ITS
SINGLE-LINE RATES FROM MINES IN THE BRAZIL AND LINTON GROUPS WHICH IT
SERVES TO ROCKFORD, FREEPORT AND OTHER INTERMEDIATE ILLINOIS POINTS BY
THE AMOUNT OF THE ILLINOIS INTRASTATE REDUCTION.  THE COMMISSION
ORDERED THE PROPOSED RATE TO BE CANCELLED.  THE COURT AFFIRMED A DECREE
OF A DISTRICT COURT WHICH PERMANENTLY ENJOINED THE ORDER OF THE
COMMISSION.  UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294 U.S.
499. 

SINCE THAT TIME THE RATES OF THE MILWAUKEE FROM ORIGINS ON ITS LINE
IN THE BRAZIL AND LINTON GROUPS TO ROCKFORD AND OTHER INTERMEDIATE
POINTS IN ILLINOIS HAVE BEEN LOWER THAN THE CONTEMPORANEOUS RATES OF
CARRIERS SERVING OTHER ORIGINS IN THESE RESPECTIVE GROUPS TO THE SAME
DESTINATIONS, WITH THE EXCEPTION OF THE ILLINOIS CENTRAL WHICH IN 1936
PUBLISHED RATES FROM THE LINTON GROUP TO ROCKFORD AND OTHER
INTERMEDIATE ILLINOIS POINTS ON ITS LINES ON THE SAME BASIS AS THE
MILWAUKEE'S SINGLE-LINE RATES. 

THE MILWAUKEE AND THE ILLINOIS CENTRAL SERVE ONLY A PART OF THE MINES
IN THE BRAZIL AND LINTON GROUPS.  BUT THEY CARRY COAL FROM OTHER MINES
IN THOSE GROUPS EVEN THOUGH THEIR LINES DO NOT REACH THEM, SINCE THEY
ARE EITHER CONNECTING CARRIERS OF LINES THAT DO OR DESTINATION
CARRIERS.  THEY ARE THEREFORE PARTIES TO MANY JOINT RATES.  BUT THE
JOINT RATES DO NOT REFLECT REDUCTIONS WHICH THE MILWAUKEE AND ILLINOIS
CENTRAL MADE IN THEIR SINGLE-LINE RATES.  AND THE RATE INCREASES
PROPOSED, AND SUSPENDED BY THE COMMISSION ON THE PRESENT PROCEEDINGS,
CONTINUED THAT PREVIOUS RELATIONSHIP.  MOREOVER THE PROPOSED DUAL BASIS
OF RATES TO ROCKFORD AND OTHER ILLINOIS DESTINATIONS REACHED BY THE
MILWAUKEE WAS PROPOSED TO BE EXTENDED TO BELOIT, WHICH PREVIOUSLY HAD
ENJOYED THE SAME RATES FROM ALL THE MINES IN THE BRAZIL AND LINTON
GROUPS. 

AS WE HAVE NOTED, THE NEW PROPOSED RATES RESPECTED THE 15-CENT
DIFFERENTIAL OF BELOIT OVER ROCKFORD.  THE RESULT WAS A SUBSTANTIAL
INCREASE IN THE JOINT-LINE RATES FROM THE BRAZIL AND LINTON GROUPS TO
BELOIT AS WELL AS TO ROCKFORD.  BUT MILWAUKEE'S SINGLE-LINE RATES WERE
INCREASED 15 CENTS TO ROCKFORD AND NONE TO BELOIT.  THE RESULT WOULD BE
TO ACCORD TO MINES IN THE BRAZIL AND LINTON GROUPS THAT WERE ON THE
MILWAUKEE LINES RATES LOWER TO BELOIT BY 17 AND 12 CENTS, RESPECTIVELY,
THAN ACCORDED THE OTHER MINES IN THE TWO GROUPS.  FURTHERMORE THE NEW
PROPOSED RATES WOULD ESTABLISH A DUAL BASIS OF RATES TO BELOIT FROM THE
PRINCETON GROUP AS WELL. 

THE COMMISSION DISAPPROVED THE DUAL BASIS OF RATES.  IT CONSIDERED
WHAT WOULD BE THE FAIR AND REASONABLE RATE RELATIONS AS BETWEEN THE
RESPECTIVE ORIGINS IN THE SEVERAL GROUPS AND AS BETWEEN THE GROUPS
THEMSELVES.  IT FOUND THAT PRESENT AND PROPOSED RATES OF THE MILWAUKEE
AND ILLINOIS CENTRAL FROM INDIANA TO THE NORTHERN ILLINOIS DESTINATIONS
WOULD RESULT IN UNJUST DISCRIMINATION AS BETWEEN SHIPPERS AND RECEIVERS
OF COAL AND UNDUE PREFERENCE AND PREJUDICE AS BETWEEN THE ORIGINS IN
THE BRAZIL AND LINTON GROUPS AND AS BETWEEN THE RESPECTIVE INDIANA
GROUPS.  IT MADE THE SAME FINDINGS AS RESPECTS THE MILWAUKEE'S PROPOSED
RATES FROM THE BRAZIL, LINTON AND PRINCETON GROUPS TO BELOIT; AND IN
THAT CONNECTION IT ALSO FOUND THAT THOSE RATES WOULD RESULT IN UNDUE
PREFERENCE AND PRIVILEGE AS BETWEEN THE INDIANA GROUPS ON THE ONE HAND
AND THE ILLINOIS GROUPS ON THE OTHER.  THE COMMISSION WENT ON TO
SPECIFY RATES WHICH IT APPROVED.  IT RULED THAT THE PROPOSED RATES
WOULD BE UNREASONABLE TO THE EXTENT THAT THEY WERE ABOVE THE APPROVED
RATES.  FN6  263 I.C.C. 179. 

WE AGREE WITH THE DISTRICT COURT THAT THE COMPLAINTS MUST BE
DISMISSED. 

FIRST.  IT IS CONTENDED THAT THE COMMISSION IN THIS PROCEEDING HAD
AUTHORITY TO DETERMINE THE LAWFULNESS ONLY OF THE PROPOSED RATES, NOT
OF THE PRESENT RATES. 

THIS PROCEEDING IS AN INVESTIGATION AND SUSPENSION PROCEEDING UNDER
SEC. 15(7) OF THE INTERSTATE COMMERCE ACT, 44 STAT. 1447, 49 U.S.C.
SEC. 15(7).  THAT SECTION, WHICH GIVES THE COMMISSION BROAD AUTHORITY
UPON COMPLAINT OR ITS OWN INITIATIVE TO INVESTIGATE AND DETERMINE THE
LAWFULNESS OF ANY NEW RATE,  FN7  PROVIDES THAT "AFTER FULL HEARING,
WHETHER COMPLETED BEFORE OR AFTER THE RATE ...  GOES INTO EFFECT, THE
COMMISSION MAY MAKE SUCH ORDER WITH REFERENCE THERETO AS WOULD BE
PROPER IN A PROCEEDING INITIATED AFTER IT HAD BECOME EFFECTIVE." 

THE POWER OF THE COMMISSION TO DEAL WITH THE SITUATION AS IF THE
PROPOSED NEW RATES HAD BECOME EFFECTIVE IS NECESSARILY A COMPREHENSIVE
ONE.  IT SEEMS TOO PLAIN FOR ARGUMENT THAT SUCH BROAD AUTHORITY IS
AMPLE FOR THE MODIFICATION OF EITHER PROPOSED OR EXISTING RATES OR
BOTH.  THE POWER GRANTED THE COMMISSION UNDER SEC. 15(1) TO DEAL WITH
RATE SCHEDULES ALREADY EFFECTIVE SUPPORTS THAT VIEW.  FN8  FOR ONCE THE
COMMISSION FINDS THE RATE TO BE UNJUST OR UNREASONABLE OR UNJUSTLY
DISCRIMINATORY OR UNDULY PREFERENTIAL OR PREJUDICIAL OR OTHERWISE
UNLAWFUL, THE COMMISSION IS GRANTED THE POWER UNDER SEC. 15(1) TO
DETERMINE AND PRESCRIBE THE JUST AND REASONABLE RATE.  THE COMMISSION
IS NOT BOUND EITHER TO APPROVE OR DISAPPROVE IN TOTO THE NEW RATES THAT
ARE PROPOSED.  IT CAN MODIFY THE PROPOSAL IN ANY RESPECT AND REQUIRE
THAT THE PROPOSED RATES AS MODIFIED OR WHOLLY DIFFERENT RATES BE
SUBSTITUTED FOR THE PRESENT ONES.  THAT HAS BEEN THE VIEW OF THE
COMMISSION SINCE THE BEGINNING; FN9  AND WE THINK IT IS THE CORRECT
ONE. 

THE SAME RESULT OBTAINS AS RESPECTS THE MILWAUKEE'S SINGLE-LINE RATES
FROM ORIGINS ON ITS LINES IN THE BRAZIL AND LINTON GROUPS TO BELOIT,
WISCONSIN.  THE MILWAUKEE HAD NOT PROPOSED ANY CHANGE IN THOSE RATES. 
BUT THOSE RATES HAD BEEN REPUBLISHED IN THE PROPOSED SCHEDULES.  THEY
WERE AMONG THE RATES SUSPENDED BY THE COMMISSION.  AND THE COMMISSION'S
ORDER OF INVESTIGATION CITED THE MILWAUKEE TARIFF THAT CONTAINS THOSE
RATES.  HENCE THE COMMISSION SOUGHT TO BRING THEM INTO THE
INVESTIGATION AND GAVE MILWAUKEE ALL THE NOTICE TO WHICH IT WAS
ENTITLED.  THAT THE COMMISSION HAD AUTHORITY TO INCLUDE THEM SEEMS
CLEAR TO US.  EVEN THOUGH WE ASSUME THEY ARE NOT "NEW" RATES WITHIN THE
MEANING OF SEC. 15(7), THEY ARE RATES "DEMANDED, CHARGED, OR COLLECTED"
WITHIN THE MEANING OF SEC. 15(1). 

SECOND.  SECTION 2 OF THE ACT MAKES IT UNLAWFUL FOR A CARRIER TO
RECEIVE FROM ONE PERSON A GREATER OR LESS COMPENSATION FOR TRANSPORTING
PROPERTY THAN IT RECEIVES FROM ANOTHER FOR DOING A "LIKE AND
CONTEMPORANEOUS SERVICE IN THE TRANSPORTATION OF A LIKE KIND OF TRAFFIC
UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS."  FN10  IT IS
POINTED OUT THAT THE PURPOSE OF THIS SECTION IS TO ENFORCE EQUALITY
BETWEEN SHIPPERS OF LIKE COMMODITIES OVER THE SAME LINE OR HAUL FOR THE
SAME DISTANCE AND BETWEEN THE SAME POINTS.  FN11  THIS REQUIREMENT, IT
IS ARGUED, HAS NOT BEEN MET IN THE PRESENT CASE SINCE THERE IS NO
FINDING THAT ANY OF THE COAL FROM ANY ORIGIN POINT TO ANY DESTINATION
WAS BEING CHARGED A HIGHER RATE THAN OTHER COAL FROM THE SAME ORIGIN
POINT TO THE SAME DESTINATION MOVING OVER THE SAME LINE UNDER
SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS.  THE CONTENTION
WOULD BE WELL TAKEN IF THE COMMISSION WAS NOT WARRANTED IN TREATING ALL
PLACES WITHIN A PARTICULAR GROUP OR DISTRICT AS ONE ORIGIN POINT. 
WHETHER OR NOT THE COMMISSION WAS WARRANTED IN DOING SO, DEPENDS
PRIMARILY ON THE LEGALITY OF ITS ACTION IN GATHERING TOGETHER VARIOUS
ORIGIN POINTS INTO ONE RATE GROUP FOR RATE-MAKING PURPOSES. 

AS WE HAVE NOTED  FN12  THAT HAS BEEN AN HISTORIC METHOD OF BUILDING
COAL RATE STRUCTURES.  THE COMMISSION FOLLOWED THAT METHOD IN THIS CASE
BECAUSE IN ITS OPINION SUCH A RATE STRUCTURE WAS NECESSARY TO AFFORD
CONSUMERS, COAL OPERATORS, AND CARRIERS A FAIR OPPORTUNITY TO COMPETE
IN THE PURCHASE, SALE AND TRANSPORTATION OF COAL FROM THE MINES IN THE
VARIOUS GROUPS OR DISTRICTS TO THE DESTINATIONS IN QUESTION.  THE
COMMISSION'S POWER SO TO ACT IS NOT CHALLENGED HERE.  YET ONCE THE
LEGALITY OF THE GROUPING OF MINES FOR RATE PURPOSES IS ACCEPTED, THE
RESULT IS CLEAR.  FOR THE PROTECTION OF ONE SHIPPER AGAINST UNJUST
DISCRIMINATION IN FAVOR OF ANOTHER WITHIN THE SAME GROUP IS AS CLEARLY
WITHIN THE PURPOSE OF SEC. 2 AS THE PROTECTION OF ONE FACTORY AGAINST
UNJUST DISCRIMINATION IN FAVOR OF ANOTHER IN THE SAME COMMUNITY.    THE
MILWAUKEE AND ILLINOIS CENTRAL WERE GRANTING MORE FAVORABLE RATES TO
SOME ORIGINS THAN TO OTHERS IN THE SAME GROUPS OR DISTRICTS.  THEIR
SINGLE-LINE RATES FROM MINES ON THEIR OWN LINES WERE MUCH LOWER THAN
JOINT-LINE RATES FROM OTHER MINES IN THE SAME GROUP TO THE SAME
DESTINATIONS.  THE LATTER ARE RATES PUBLISHED BY OTHER CARRIERS AND IN
WHICH MILWAUKEE AND ILLINOIS CENTRAL JOIN.  MILWAUKEE AND ILLINOIS
CENTRAL THEREFORE ARE PARTIES TO AN ARRANGEMENT WHICH RESULTS IN SOME
MINES GETTING LOWER RATES THAN OTHER MINES IN THE SAME GROUP ON
SHIPMENTS TO THE SAME DESTINATIONS. 

THE QUESTION REMAINS WHETHER THAT PREFERENTIAL TREATMENT OF SHIPPERS
AT SOME ORIGINS WAS AN UNJUST DISCRIMINATION WITHIN THE MEANING OF SEC.
2. 

THE SINGLE-LINE RATES OF MILWAUKEE AND ILLINOIS CENTRAL FROM THE
LINTON GROUP TO NORTHERN ILLINOIS DESTINATIONS WERE 12 CENTS LOWER THAN
THE JOINT-LINE RATES TO THE SAME POINTS FROM OTHER MINES IN THE LINTON
GROUP.  THE LIKE DIFFERENTIAL AS RESPECTS THE BRAZIL GROUP WAS 17
CENTS.  THE PROPOSED SCHEDULES CONTINUED THAT DUAL BASIS OF RATES AND
EXTENDED IT TO BELOIT, WISCONSIN.  THE COMMISSION MADE WHAT SEEMS TO US
A PERMISSIBLE INFERENCE, THAT RATES FAVORABLE TO THE MINES ON THE
SINGLE-RATE ROUTES PLAYED AN IMPORTANT PART IN GETTING THE GREAT BULK
OF THE TONNAGE FROM THE ROADS HAVING THE HIGHER JOINT RATES.  THUS
MILWAUKEE SERVED ONLY 4 OF THE 30 MINES IN THE BRAZIL GROUP AND ONLY 9
OF THE 31 IN THE LINTON GROUP.  BUT IN WHAT THE COMMISSION CALLED A
REPRESENTATIVE PERIOD, MILWAUKEE HANDLED UNDER ITS SINGLE-LINE RATES
OVER 95 PER CENT OF THE TONNAGE MOVING FROM BRAZIL TO ROCKFORD AND OVER
78 PER CENT OF THAT FROM LINTON TO ROCKFORD.  THE COMMISSION CONCLUDED
THAT THE MAINTENANCE OF THE DUAL BASIS OF RATES THEREFORE HAD AN
IMPORTANT BEARING ON THE FUTURE OPPORTUNITIES OF SHIPPERS WITHIN THE
RESPECTIVE GROUPS TO MARKET THEIR COAL IN THE DESTINATION TERRITORY. 
IT FOUND THAT THERE WAS SEVERE COMPETITION IN MARKETING COAL IN THIS
TERRITORY AND THAT A DIFFERENTIALLY RELATED AND FINELY BALANCED RATE
STRUCTURE ON THE COAL WAS NECESSARY IN ORDER TO MEET THE NEEDS OF THE
CONSUMING PUBLIC, THE MINE OPERATORS, AND THE CARRIERS.  FOR, IN
GENERAL, ALL OF THE MINES IN THESE GROUPS PRODUCE COAL OF THE SAME
QUALITY AND GRADE.  A DIFFERENCE OF A FEW CENTS PER TON IN THE
TRANSPORTATION CHARGE IS NORMALLY SUFFICIENT TO DIVERT A COAL CONTRACT
FROM ONE MINE TO ANOTHER.  YET THE COMMISSION FOUND THAT THE
TRANSPORTATION CONDITIONS OVER THE SINGLE-LINE ROUTES DO NOT DIFFER
MATERIALLY FROM THOSE OVER THE JOINT-LINE ROUTES TO THE SAME
DESTINATIONS FROM OTHER MINES IN THE SAME GROUP; THAT THERE IS NO
IMPORTANT DIFFERENCE IN THE AVERAGE DISTANCES OVER THOSE RESPECTIVE
ROUTES. 

THE LATTER FINDINGS, ESPECIALLY THE ONE RESPECTING THE SIMILARITY OF
TRANSPORTATION CONDITIONS, ARE SEVERELY CHALLENGED AS BEING WITHOUT ANY
SUPPORT IN THE EVIDENCE.  THESE FINDINGS, WHEN JUDGED BY THE CLASSIC
EXAMPLES OF UNJUST DISCRIMINATION BETWEEN SHIPPERS, LEAVE MUST TO BE
DESIRED.  BUT WE THINK THEY ARE ADEQUATE IN THIS CASE.  THEY REFLECT AN
INTIMATE ACQUAINTANCE BY THE COMMISSION WITH THE GROUPING OF MINES FOR
RATE-MAKING PURPOSES.  SEE 263 I.C.C., P. 196.  THE GROUPS ARE
THEMSELVES DESIGNED TO EQUALIZE COMPETITIVE OPPORTUNITIES.  THE
LOCATION OF THE MINES, THEIR DISTANCES FROM DESTINATION TERRITORY, THE
TRANSPORTATION CONDITIONS OVER THE LINES THAT SERVE THE VARIOUS ORIGINS
WITHIN A GROUP - THESE ARE ALL FACTORS WHICH BEAR ON THE DETERMINATION
OF WHAT MINES SHALL BE PULLED TOGETHER INTO ONE GROUP.  THE COMMISSION
CAN DRAW FROM ITS LONG EXPERIENCE WITH THESE GROUPINGS TO DETERMINE
WHETHER ANY VARIABLES IN TRANSPORTATION CONDITIONS WARRANT A DIFFERENCE
OF RATES AS BETWEEN MINES WITHIN ONE GROUP TO A COMMON DESTINATION.  OR
TO STATE IT OTHERWISE, THE ATTACK HERE COULD NOT SUCCEED UNLESS IT WERE
ON THE RESPECTIVE GROUPINGS THEMSELVES.  THE APPELLANTS, OF COURSE,
CLAIM THE RIGHT TO INITIATE RATES WITHIN THE ZONE OF REASONABLENESS. 
SEE UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., SUPRA.  BUT THE
COMMISSION HOLDS THAT WHEN THAT POWER IS USED TO ESTABLISH A DUAL BASIS
OF RATES FOR THIS COAL MINING REGION, IT DEFEATS THE SYSTEM OF GROUPING
BY UNJUSTLY DISCRIMINATING AGAINST SOME SHIPPERS AND IN FAVOR OF OTHERS
IN THE SAME GROUP.  THE COMMISSION'S CONCLUSION THAT ONLY BY THE
ESTABLISHMENT AND MAINTENANCE OF A SINGLE-RATE BASIS CAN THAT UNJUST
DISCRIMINATION BE AVOIDED IS AN INFORMED JUDGMENT BASED ON A COMPLEX OF
MANY FACTORS.  IT CANNOT BE SUCCESSFULLY CHALLENGED ON THIS RECORD
UNLESS THE WHOLE SYSTEM OF RATE MAKING ON A GROUP BASIS IS UNDERMINED. 
BUT NO SUCH MAJOR PROJECT IS UNDERTAKEN. 

WHAT WE HAVE JUST SAID ALSO DISPOSES OF THE ATTACK WHICH IS MADE ON
THE FINDINGS AND CONCLUSION OF THE COMMISSION THAT THE PRESENT AND
PROPOSED SYSTEM OF DUAL RATES CREATES AN UNDUE PREFERENCE AND PREJUDICE
AS BETWEEN THE ORIGINS IN THE BRAZIL AND LINTON GROUPS IN VIOLATION OF
SEC. 3(1) OF THE ACT.  FN13 

THIRD.  THE COMMISSION FOUND THAT THE DIFFERENTIALS MAINTAINED BY THE
MILWAUKEE AND ILLINOIS CENTRAL AS BETWEEN CERTAIN OF THE INDIANA GROUPS
CONSTITUTED AN UNDUE PREFERENCE AND PREJUDICE IN VIOLATION OF SEC. 3(1)
OF THE ACT.  FN14 

THE COMMISSION FOUND THAT THE DIFFERENTIAL, LINTON OVER BRAZIL,
SHOULD BE 10 CENTS.  THIS IS THE STANDARD DIFFERENTIAL, IN EFFECT
GENERALLY TO THE NORTHWEST.  IT FOUND THAT THE STANDARD DIFFERENTIAL,
PRINCETON OVER LINTON, WAS 7 CENTS.  MILWAUKEE'S DIFFERENTIAL IN THE
FORMER WOULD BE 22 CENTS; AND THE DIFFERENTIAL OF THE MILWAUKEE AND
ILLINOIS CENTRAL IN THE LATTER WOULD BE 19 CENTS.  THE MAIN ATTACK OF
APPELLANTS ON THIS PHASE OF THE CASE IS THE COMMISSION'S CONCLUSION
THAT THESE DIFFERENTIALS ARE GREATER THAN THOSE WARRANTED BY THE
RESPECTIVE DIFFERENCES IN DISTANCES.  FACTS ARE ADDUCED TO SHOW THAT
THEY FAIRLY REFLECT DIFFERENCES IN DISTANCES. 

BUT THE COMMISSION MADE PLAIN THAT IN CONSIDERING THE WHOLE PROBLEM
OF RATE RELATIONS PRESENTED BY THIS CASE IT DID NOT RELY STRICTLY UPON
DISTANCE.  DISTANCE WAS A FACTOR BUT IT WAS NOT CONTROLLING.  THE
COMMISSION DEEMED ITS TASK TO BE THE CREATION OF A RATE STRUCTURE THAT
WOULD AFFORD A FAIR OPPORTUNITY TO COMPETE IN THE PURCHASE, SALE AND
TRANSPORTATION OF THE COAL FROM THE VARIOUS MINES TO THE DESTINATIONS
IN QUESTION. 

THE PROPRIETY OF THAT ACTION OF THE COMMISSION IS DETERMINATIVE OF
ANOTHER PHASE OF THE CASE AS WELL.  IT GOES TO THE HEART OF APPELLANTS'
OBJECTIONS TO THE DIFFERENTIALS PRESCRIBED BY THE COMMISSION AS FAIR
AND REASONABLE AS BETWEEN THE INDIANA GROUPS AND THE ILLINOIS GROUPS. 

THE COMMISSION APPROVED RATES FROM THE INDIANA GROUPS TO TWELVE
ILLINOIS DESTINATIONS WHICH AVERAGED $1.95 FROM BRAZIL, $2.05 FROM
LINTON, AND $2.12 FROM PRINCETON-BOONVILLE.  THESE RATES, THE
COMMISSION FOUND, COMPARED FAVORABLY WITH THE PROPOSED RATES TO THE
SAME DESTINATIONS FROM THE ILLINOIS GROUPS,  FN15  APART FROM
EXCEPTIONS NOT NOW MATERIAL. 

THE CHIEF PROBLEM OF THE COMMISSION IN THIS CASE WAS TO PROVIDE A
RATE STRUCTURE WHICH WOULD AFFORD FAIR AND REASONABLE RELATIONS OF
RATES TO NORTHERN ILLINOIS DESTINATIONS, BOTH AS BETWEEN THE RESPECTIVE
ORIGIN GROUPS AND AS BETWEEN INDIANA GROUPS AND ILLINOIS GROUPS.  THERE
HAD BEEN HISTORICALLY NO FIXED RELATION EITHER BETWEEN THE FORMER OR
THE LATTER.  AND THE APPEARANCE OF A DUAL BASIS OF RATES GREATLY
DISTORTED THE PICTURE.  THE COMMISSION DID IN THIS CASE WHAT THE COURT
POINTED OUT IN UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., SUPRA,
AT 510, IT HAD NOT DONE THERE, VIZ, IT ADJUDGED THE FAIRNESS OF THE
RELATION SUBSISTING BETWEEN ILLINOIS AND INDIANA RATES. 

APPELLANTS HOWEVER CONTEND THAT WHAT THE COMMISSION DID WAS WHOLLY
ARBITRARY.  THEY POINT TO INSTANCES WHERE THE RATE FROM AN INDIANA
GROUP IS MORE THAN THE RATE FROM AN ILLINOIS GROUP EVEN THOUGH THE HAUL
IS SHORTER.  THEY SAY THAT WHAT THE COMMISSION DID WAS TO ADJUST THE
RATES NOT TO COMPENSATE FOR THE TRANSPORTATION SERVICE RENDERED BUT TO
FAVOR ILLINOIS GROUPS OVER INDIANA GROUPS.  THEY GIVE ILLUSTRATION
AFTER ILLUSTRATION OF THE INCONSISTENCIES BETWEEN THE SPECIFIC RATES,
ASSUMING, AS THE COMMISSION FOUND, THAT THE TRANSPORTATION CONDITIONS
WHICH WERE INVOLVED WERE THE SAME.  FROM THAT ARGUMENT APPELLANTS SEEK
TO MAKE TWO POINTS - (1) THAT THE RATES APPROVED BY THE COMMISSION DO
NOT REFLECT GROUP DIFFERENTIALS DESIGNED TO ELIMINATE DISCRIMINATION
AND PREFERENCE AND (2) THAT, EVEN THOUGH THEY DO, INDIVIDUAL RATES ARE
ESTABLISHED THAT ARE WHOLLY ARBITRARY IN VIOLATION OF THE PRINCIPLE
THAT EACH DESTINATION IS ENTITLED TO A REASONABLE RATE. 

WE CANNOT DENY THE COMMISSION AUTHORITY TO USE AVERAGES AS A MEASURE
OF THE RELATIONSHIP BETWEEN THE RATES OF THE INDIANA GROUPS ON THE ONE
HAND AND THE ILLINOIS GROUPS ON THE OTHER.  THE AVERAGES WOULD BE SOME
INDICATION OF THE CLOSENESS OF THE ALIGNMENT.  THE IMPORTANT COMPARISON
HERE IS IN THE REGIONAL OR GROUP DIFFERENTIALS.  THESE DIFFERENTIALS IN
THE PRESENT CASE WERE NOT DESIGNED SO AS TO BE FAITHFUL TO THE FACTOR
OF DISTANCE.  THE COMMISSION FOLLOWED THE COMMON PRACTICE IN GIVING
DIMINISHING WEIGHT TO DISTANCE AND INCREASING WEIGHT TO COMPETITION AS
THE LENGTH OF THE HAUL INCREASED.  THE COMMISSION SAID, 263 I.C.C. AT
204, 

"IN APPROVING THE FOREGOING RATE RELATIONS, WE HAVE KEPT IN MIND THE
IMPORTANCE TO CONSUMERS, COAL OPERATORS, AND RAILROADS OF RELATING
THESE DIFFERENTIALLY RELATED COAL RATES, NOT STRICTLY UPON DISTANCE,
BUT SO AS TO AFFORD ALL CONCERNED A FAIR OPPORTUNITY TO COMPETE IN THE
PURCHASE, SALE, AND TRANSPORTATION OF COAL FROM ILLINOIS AND INDIANA
MINES TO THESE DESTINATIONS.  THE RATES BETWEEN THE VARIOUS ORIGIN
GROUPS IN THESE FIELDS HAVE NEVER BEEN MADE WITH PRIMARY REGARD FOR
DISTANCE, AND TO SO MAKE THEM NOW WOULD HAVE THE EFFECT EVENTUALLY OF
ELIMINATING PRACTICALLY ALL COMPETITION BETWEEN MOST OF THEM, A RESULT
WHICH WOULD BE HIGHLY UNDESIRABLE TO THE CONSUMER, WHOSE INTERESTS WE
MAY NOT DISREGARD."  FN16 

THERE IS NO DOUBT, THEREFORE, THAT THE COMMISSION BELIEVED THAT THE
COMPETITIVE FACTOR WAS AN IMPORTANT ONE IN CONSIDERING THIS PROBLEM OF
RATE RELATIONSHIPS.  THE RESULT MAY, AS APPELLANTS CONTEND, FAVOR SOME
ILLINOIS MINES OVER INDIANA AS RESPECTS CERTAIN MARKETS.  THAT WOULD
SEEM TO FOLLOW, FOR EXAMPLE, FROM THE ELIMINATION OF THE LOW SINGLE
LINE RATE THAT THE COMMISSION FOUND TO BE DISRUPTIVE OF RATE RELATIONS
BETWEEN THESE GROUPS.  BUT IT DOES NOT INDICATE THAT THE RATES APPROVED
BY THE COMMISSION WERE UNLAWFUL.  THAT MIGHT BE ESTABLISHED BY SHOWING,
FOR EXAMPLE, THAT THE COMMISSION GAVE WEIGHT ONLY TO THE COMPETITIVE
FACTOR.  YET ALL THAT APPELLANTS ATTEMPT HERE IS TO SHOW THAT
DISCREPANCIES IN RATES ARE NOT WARRANTED BY ANY DIFFERENCE IN
TRANSPORTATION CONDITIONS OR IN DISTANCE.  THAT IS NOT ENOUGH PROVIDED
THE COMMISSION WAS JUSTIFIED IN CONSIDERING THE ELEMENT OF
COMPETITION. 

WE THINK IT WAS.  RATE STRUCTURES ARE NOT DESIGNED MERELY TO FAVOR
THE REVENUES OF PRODUCERS AND CARRIERS.  THE COMMISSION HAS THE
CONSUMER INTEREST TO SAFEGUARD AS WELL.  FN17  AND WHEN IT UNDERTAKES
TO RATIONALIZE THE INTERESTS OF THE THREE, GREAT COMPLEXITIES ARE OFTEN
ENCOUNTERED.  THE ECONOMICS OF THE BITUMINOUS COAL INDUSTRY HAVE
BAFFLED EVEN EXPERTS.  WE WOULD DEPART FROM OUR COMPETENCE AND OUR
LIMITED FUNCTION IN THIS FIELD IF WE UNDERTOOK TO ACCOMMODATE THE
FACTORS OF TRANSPORTATION CONDITIONS, DISTANCE AND COMPETITION
DIFFERENTLY THAN THE COMMISSION HAS DONE IN THIS CASE.  THAT IS A TASK
PECULIARLY FOR IT.  IN FASHIONING WHAT THE COMMISSION CALLED A
DIFFERENTIALLY RELATED AND FINELY BALANCED RATE STRUCTURE FOR THIS
COAL, THERE IS NO PLACE FOR DOGMA OR RIGID FORMULAE.  THE PROBLEM CALLS
FOR AN EXPERT, INFORMED JUDGMENT ON A MULTITUDE OF FACTS.  THE RESULT
IS THAT THE ADMINISTRATIVE RATE-MAKER IS LEFT WITH BROAD DISCRETION AS
LONG AS NO STATUTORY REQUIREMENT IS OVERLOOKED.  YET THAT IS, OF
COURSE, PRECISELY THE NATURE OF THE ADMINISTRATIVE PROCESS IN THIS
FIELD.  SEE BOARD OF TRADE V. UNITED STATES, 314 U.S. 534, 548; NEW
YORK V. UNITED STATES, 331 U.S. 284, 347-349. 

FOURTH.  APPELLANTS ARGUE THAT THE COMMISSION ACTED BEYOND ITS
AUTHORITY BECAUSE IT DID NOT AFFORD THE CARRIERS ALTERNATIVE METHODS OF
REMOVING THE DISCRIMINATION WHICH WAS FOUND TO EXIST.  SEE TEXAS &
PACIFIC R. CO. V. UNITED STATES, 289 U.S. 627.  AND MILWAUKEE ARGUES
THAT THE COMMISSION WAS WITHOUT POWER TO DIRECT IT TO CEASE FROM
GRANTING THE UNDUE PREFERENCE FOUND TO EXIST BETWEEN ITS SINGLE-LINE
RATE AND THE HIGHER JOINT-LINE RATES, SINCE IT HAD NO CONTROL OVER THE
LATTER. 

THIS IS NOT A CASE LIKE TEXAS & PACIFIC R. CO. V. UNITED STATES,
SUPRA, WHERE THE COMMISSION ISSUES A SO-CALLED ALTERNATIVE ORDER
DIRECTING THE CARRIERS TO REMOVE AN UNJUST JUST DISCRIMINATION OR UNDUE
PREFERENCE WHICH HAS BEEN FOUND.  THAT KIND OF ORDER LEAVES A CHOICE TO
THE CARRIERS WHETHER TO ELIMINATE THE UNLAWFUL PRACTICE BY RAISING ONE
RATE, LOWERING THE OTHER, OR ALTERING BOTH.  BUT AS WE RECENTLY HELD IN
NEW YORK V. UNITED STATES, SUPRA, AT 342, THAT RULE IS NOT APPLICABLE
WHERE THE COMMISSION ITSELF UNDERTAKES TO CORRECT THE UNLAWFUL PRACTICE
BY PRESCRIBING THE JUST AND REASONABLE RATE.  THE COMMISSION HAS TAKEN
THAT ACTION HERE.  AS WE NOTED ABOVE, THE PRESENT PROCEEDING WAS ONE
UNDER SEC. 15(1) AND SEC. 15(7).  SECTION 15(1) GIVES THE COMMISSION
POWER TO DETERMINE AND PRESCRIBE THE JUST AND REASONABLE RATE ONCE IT
FINDS, INTER ALIA, THAT ANY RATE CHARGED IS UNJUSTLY DISCRIMINATING OR
UNDULY PREFERENTIAL OR PREJUDICIAL.  THE COMMISSION IN THE PRESENT CASE
HAS EXERCISED THAT POWER.  IT HAS PRESCRIBED APPROVED RATES.  THEY ARE
RATES WHICH IN THE COMMISSION'S JUDGMENT WILL ELIMINATE THE UNJUST
DISCRIMINATION AND UNDUE PREFERENCE FOUND TO EXIST IN THIS RATE
STRUCTURE.  HENCE THE QUESTION WHETHER MILWAUKEE EFFECTIVELY CONTROLLED
THE HIGHER JOINT-LINE RATES IS IRRELEVANT HERE.  NEW YORK V. UNITED
STATES, SUPRA.    FINALLY IT IS SUGGESTED THAT THE ORDER IS INVALID
BECAUSE THE COMMISSION DID NOT FIND THAT THE PREFERENTIAL RATES WERE
NONCOMPENSATORY.  BUT ONCE A FORBIDDEN DISCRIMINATION OR PREFERENCE IN
RATES IS FOUND, THE COMMISSION MAY REMOVE IT EVEN THOUGH THE RATES ARE
WITHIN THE ZONE OF REASONABLENESS.  NEW YORK V. UNITED STATES, SUPRA,
AT 344.  AFFIRMED. 

FN1  A PRIOR DECREE SUSTAINING THIS ORDER OF THE COMMISSION WAS
REVERSED BY THE COURT BECAUSE ONE MEMBER OF THE THREE-JUDGE DISTRICT
COURT HAD NOT PARTICIPATED IN THE DECISION.  AYRSHIRE CORP. V. UNITED
STATES, 331 U.S. 132. 

FN2  ANOTHER CHARACTERISTIC OF COAL RATE STRUCTURES HAS BEEN THE RATE
DIFFERENTIALS.  FOR EXAMPLE, BRAZIL IS THE BASE GROUP IN INDIANA ON
COAL TRAFFIC TO THE ILLINOIS AND WISCONSIN DESTINATIONS INVOLVED IN
THIS LITIGATION.  HENCE THE RATES, EXPRESSED IN CENTS PER TON, FROM THE
OTHER INDIANA GROUPS ARE STATED IN TERMS OF DIFFERENCES FROM THE BRAZIL
GROUP RATE. 

FN3  SEE HITCHMAN COAL & COKE CO. V. BALTIMORE & O.R. CO., 16 I.C.C.
512, 520; WAUKESHA LIME & STONE CO. V. CHICAGO, M. & ST. P.R. CO., 26
I.C.C. 515, 518; WISCONSIN & ARKANSAS LBR.  CO. V. ST. LOUIS, I.M. &
S.R. CO., 33 I.C.C. 33, 37-38; PUBLIC UTILITIES COMMISSION V. OREGON
SHORT LINE R. CO., 33 I.C.C. 103, 106; SOUTHWESTERN INTERSTATE COAL
OPERATORS' ASSN. V. ARKANSAS W.R. CO., 89 I.C.C. 73, 84-85.  AND SEE
NEW YORK HARBOR CASE, 47 I.C.C. 643, 712; ILLINOIS COMMERCE COMMISSION
V. UNITED STATES, 292 U.S. 474, 486. 

FN4  SEE INTRASTATE RATES ON BITUMINOUS COAL IN ILLINOIS, 182 I.C.C.
537, 549-550. 

FN5  THE HISTORY OF THIS RATE PROBLEM IS BRIEFLY SUMMARIZED BY THE
COMMISSION IN ITS REPORT ON THE PRESENT CASE.  263 I.C.C. 179.  FOR
EARLIER ASPECTS OF IT SEE INTRASTATE RATES ON BITUMINOUS COAL IN
ILLINOIS, 182 I.C.C. 537; FAIRBANKS-MORSE & CO. V. ALTON & S.R., 195
I.C.C. 365, 251 I.C.C. 181; ILLINOIS COAL TRAFFIC BUREAU V. AHNAPEE &
W.R. CO., 201 I.C.C. 225; COAL TO ILLINOIS AND WISCONSIN, 232 I.C.C.
151.  AND SEE COAL FROM INDIANA TO ILLINOIS, 197 I.C.C. 245, 200 I.C.C.
609, THE ORDER IN WHICH, AS WE DISCUSS HEREAFTER IN THE OPINION, WAS
HELD INVALID BY UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294
U.S. 499. 

FN6  THE ORDER ENTERED BY THE COMMISSION IN THE PROCEEDING TO
DETERMINE WHETHER THE INTRASTATE RATES WERE UNJUSTLY DISCRIMINATORY
AGAINST INTERSTATE COMMERCE IS NOT UNDER ATTACK HERE.  IT REQUIRED THE
CARRIERS TO DESIST FROM PRACTICES WHICH THE COMMISSION FOUND TO BE
DISCRIMINATORY AND TO ESTABLISH AND MAINTAIN, FOR THE INTRASTATE
TRANSPORTATION OF COAL, RATES NO LOWER THAN THE APPROVED RATES. 

FN7  "WHENEVER THERE SHALL BE FILED WITH THE COMMISSION ANY SCHEDULE
STATING A NEW INDIVIDUAL OR JOINT RATE, FARE, OR CHARGE, OR ANY NEW
INDIVIDUAL OR JOINT CLASSIFICATION, OR ANY NEW INDIVIDUAL OR JOINT
REGULATION OR PRACTICE AFFECTING ANY RATE, FARE, OR CHARGE, THE
COMMISSION SHALL HAVE, AND IT IS HEREBY GIVEN, AUTHORITY, EITHER UPON
COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, AT ONCE, AND IF
IT SO ORDERS WITHOUT ANSWER OR OTHER FORMAL PLEADING BY THE INTERESTED
CARRIER OR CARRIERS, BUT UPON REASONABLE NOTICE, TO ENTER UPON A
HEARING CONCERNING THE LAWFULNESS OF SUCH RATE, FARE, CHARGE,
CLASSIFICATION, REGULATION, OR PRACTICE; AND PENDING SUCH HEARING AND
THE DECISION THEREON THE COMMISSION, UPON FILING WITH SUCH SCHEDULE AND
DELIVERING TO THE CARRIER OR CARRIERS AFFECTED THEREBY A STATEMENT IN
WRITING OF ITS REASONS FOR SUCH SUSPENSION, MAY FROM TIME TO TIME
SUSPEND THE OPERATION OF SUCH SCHEDULE AND DEFER THE USE OF SUCH RATE,
FARE, CHARGE, CLASSIFICATION, REGULATION, OR PRACTICE, BUT NOT FOR A
LONGER PERIOD THAN SEVEN MONTHS BEYOND THE TIME WHEN IT WOULD OTHERWISE
GO INTO EFFECT; AND AFTER FULL HEARING, WHETHER COMPLETED BEFORE OR
AFTER THE RATE, FARE, CHARGE, CLASSIFICATION, REGULATION, OR PRACTICE
GOES INTO EFFECT, THE COMMISSION MAY MAKE SUCH ORDER WITH REFERENCE
THERETO AS WOULD BE PROPER IN A PROCEEDING INITIATED AFTER IT HAD
BECOME EFFECTIVE." 

FN8  "THAT WHENEVER, AFTER FULL HEARING, UPON A COMPLAINT MADE AS
PROVIDED IN SECTION 13 OF THIS PART, OR AFTER FULL HEARING UNDER AN
ORDER FOR INVESTIGATION AND HEARING MADE BY THE COMMISSION ON ITS OWN
INITIATIVE, EITHER IN EXTENSION OF ANY PENDING COMPLAINT OR WITHOUT ANY
COMPLAINT WHATEVER, THE COMMISSION SHALL BE OF OPINION THAT ANY
INDIVIDUAL OR JOINT RATE, FARE, OR CHARGE WHATSOEVER DEMANDED, CHARGED,
OR COLLECTED BY ANY COMMON CARRIER OR CARRIERS SUBJECT TO THIS PART FOR
THE TRANSPORTATION OF PERSONS OR PROPERTY AS DEFINED IN THE FIRST
REGULATION, OR PRACTICE WHATSOEVER OF SUCH CARRIER OR CARRIERS SUBJECT
TO THE PROVISIONS OF THIS PART, IS OR WILL BE UNJUST OR UNREASONABLE OR
UNJUSTLY DISCRIMINATORY OR UNDULY PREFERENTIAL OR PREJUDICIAL, OR
OTHERWISE IN VIOLATION OF ANY OF THE PROVISIONS OF THIS PART, THE
COMMISSION IS HEREBY AUTHORIZED AND EMPOWERED TO DETERMINE AND
PRESCRIBE WHAT WILL BE THE JUST AND REASONABLE INDIVIDUAL OR JOINT
RATE, FARE, OR CHARGE, OR RATES, FARES, OR CHARGES, TO BE THEREAFTER
OBSERVED IN SUCH CASE, OR THE MAXIMUM OR MINIMUM, OR MAXIMUM AND
MINIMUM, TO BE CHARGED, AND WHAT INDIVIDUAL OR JOINT CLASSIFICATION,
REGULATION, OR PRACTICE IS OR WILL BE JUST, FAIR, AND REASONABLE, TO BE
THEREAFTER FOLLOWED, AND TO MAKE AN ORDER THAT THE CARRIER OR CARRIERS
SHALL CEASE AND DESIST FROM SUCH VIOLATION TO THE EXTENT TO WHICH THE
COMMISSION FINDS THAT THE SAME DOES OR WILL EXIST, AND SHALL NOT
THEREAFTER PUBLISH, DEMAND, OR COLLECT ANY RATE, FARE, OR CHARGE FOR
SUCH TRANSPORTATION OTHER THAN THE RATE, FARE, OR CHARGE SO PRESCRIBED,
OR IN EXCESS OF THE MAXIMUM OR LESS THAN THE MINIMUM SO PRESCRIBED, AS
THE CASE MAY BE, AND SHALL ADOPT THE CLASSIFICATION AND SHALL CONFORM
TO AND OBSERVE THE REGULATION OR PRACTICE SO PRESCRIBED." 

FN9  SEE ADVANCES IN RATES - WESTERN CASE, 20 I.C.C. 307, 314;
LIGNITE COAL FROM N. DAKOTA, 126 I.C.C. 243, 244. 

FN10  "THAT IF ANY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS
PART SHALL, DIRECTLY OR INDIRECTLY, BY ANY SPECIAL RATE, REBATE,
DRAWBACK, OR OTHER DEVICE, CHARGE, DEMAND, COLLECT, OR RECEIVE FROM ANY
PERSON OR PERSONS A GREATER OR LESS COMPENSATION FOR ANY SERVICE
RENDERED, OR TO BE RENDERED, IN THE TRANSPORTATION OF PASSENGERS OR
PROPERTY, SUBJECT TO THE PROVISIONS OF THIS PART, THAN IT CHARGES,
DEMANDS, COLLECTS, OR RECEIVES FROM ANY OTHER PERSON OR PERSONS FOR
DOING FOR HIM OR THEM A LIKE AND CONTEMPORANEOUS SERVICE IN THE
TRANSPORTATION OF A LIKE KIND OF TRAFFIC UNDER SUBSTANTIALLY SIMILAR
CIRCUMSTANCES AND CONDITIONS, SUCH COMMON CARRIER SHALL BE DEEMED
GUILTY OF UNJUST DISCRIMINATION, WHICH IS HEREBY PROHIBITED AND
DECLARED TO BE UNLAWFUL." 

FN11  SEE INTERSTATE COMMERCE COMMISSION V. BALTIMORE & O.R. CO., 145
U.S. 263, 280; INTERSTATE COMMERCE COMMISSION V. ALABAMA MIDLAND R.
CO., 168 U.S. 144, 166; BARRINGER & CO. V. UNITED STATES, 319 U.S. 1,
6. 

FN12  SEE NOTE 3, SUPRA. 

FN13  "IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF THIS PART TO MAKE, GIVE, OR CAUSE ANY UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON, COMPANY,
FIRM, CORPORATION, ASSOCIATION, LOCALITY, PORT, PORT DISTRICT, GATEWAY,
TRANSIT POINT, REGION, DISTRICT, TERRITORY, OR ANY PARTICULAR
DESCRIPTION OF TRAFFIC, IN ANY RESPECT WHATSOEVER; OR TO SUBJECT ANY
PARTICULAR PERSON, COMPANY, FIRM, CORPORATION, ASSOCIATION, LOCALITY,
PORT, PORT DISTRICT, GATEWAY, TRANSIT POINT, REGION, DISTRICT,
TERRITORY, OR ANY PARTICULAR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR
UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER  ...
" 

FN14  "THE MILWAUKEE AND THE ILLINOIS CENTRAL JOIN IN RATES FROM THE
PRINCETON AND BOONVILLE GROUPS TO THESE NORTHERN ILLINOIS DESTINATIONS
WHICH REFLECT DIFFERENCES BETWEEN THOSE GROUPS ON THE ONE HAND, AND THE
BRAZIL AND LINTON POINTS SERVED BY THOSE TWO RESPONDENTS ON THE OTHER,
THAT ARE SUBSTANTIALLY GREATER THAN THE SO-CALLED STANDARD
DIFFERENTIALS AND GREATER THAN ARE WARRANTED BY THE RESPECTIVE
DIFFERENCES IN DISTANCE." 

FN15  THE COMMISSION IN DETERMINING MAXIMUM REASONABLE RATES FROM THE
FULTON-PEORIA GROUP TO IOWA DESTINATIONS DEVELOPED THE SO-CALLED
MIDLAND SCALE.  SEE MIDLAND ELECTRIC COAL CORP. V. CHICAGO & N.W.R.
W.R. CO., 232 I.C.C. 5.  IT USED THE SO-CALLED INDIANA-ILLINOIS SCALE
FOR THE SAME PURPOSE IN CONNECTION WITH CERTAIN INDIANA GROUPS TO
EASTERN-CENTRAL ILLINOIS DESTINATIONS.  SEE COAL TRADE ASSN. V.
BALTIMORE & O.R. CO., 190 I.C.C. 743.  IN THE PRESENT CASE THE
COMMISSION MADE CERTAIN ADJUSTMENTS IN THOSE SCALES, SEE 263 I.C.C. AT
186, AND USED THEM IN THE COMPARISON OF THE APPROVED INDIANA RATES WITH
THE APPROVED ILLINOIS RATES.  THOSE COMBINED RATES FOR INDIANA TO
TWELVE NORTHERN ILLINOIS DESTINATIONS AVERAGE 86.1 PER CENT OF THE
INDIANA-ILLINOIS SCALE AND 70.7 PER CENT OF THE MIDLAND SCALE, WHILE
THE COMBINED RATES FOR THE ILLINOIS GROUPS TO THOSE DESTINATIONS
AVERAGED 85.4 PER CENT AND 70.3 PER CENT OF THOSE SCALES. 

THE COMMISSION APPROVED RATES OF $2.22 FROM BRAZIL TO BELOIT,
WISCONSIN, $2.32 FROM LINTON, AND $2.39 FROM PRINCETON-BOONVILLE, RATES
WHICH THE COMMISSION FOUND COMPARED FAVORABLY WITH THE PRESENT RATES
FROM THE ILLINOIS GROUPS TO BELOIT.  TAKEN AS A WHOLE, THE APPROVED
RATES FROM INDIANA TO BELOIT AVERAGED 94.3 PER CENT OF THE INDIANA
ILLINOIS SCALE AND 77.1 PER CENT OF THE MIDLAND SCALE, WHILE THE
COMBINED PRESENT RATES FROM THE ILLINOIS GROUPS TO BELOIT AVERAGE 92.9
PER CENT AND 76.6 PER CENT OF THE RESPECTIVE SCALES. 

FN16  THE COMMISSION MADE THIS ADDITIONAL OBSERVATION CONCERNING THE
WEIGHT IT GAVE TO DISTANCE, 263 I.C.C. AT 204, 

"AND IN ACCORDING SUCH WEIGHT TO DISTANCE AS SEEMED TO US TO BE FAIR
AND REASONABLE, WE HAVE ALSO KEPT IN MIND THAT THE AVERAGE DISTANCES OF
RECORD, AND AS USED IN THIS REPORT, ESPECIALLY FROM ILLINOIS MINES,
FREQUENTLY REFLECT SEEMING INCONSISTENCIES FROM THE SAME GROUP TO
DESTINATIONS IN CLOSE PROXIMITY TO EACH OTHER.  FOR EXAMPLE, AMBOY IS
LOCATED SOUTH OF AND ABOUT 12 MILES OVER THE ILLINOIS CENTRAL AND
ACROSS COUNTRY LESS DISTANT FROM THE ILLINOIS GROUPS THAN DIXON, BUT
THE AVERAGE SHORTEST TARIFF-ROUTE DISTANCE FROM THE SPRINGFIELD GROUP
IS 9 MILES GREATER AND FROM THE SOUTHERN ILLINOIS GROUP 1 MILE GREATER
TO THE FORMER THAN TO THE LATTER.  BY USE OF THE SHORT TARIFF ROUTES
THE DISTANCE TO AMBOY IS 9 MILES GREATER FROM SPRINGFIELD AND 7 MILES
GREATER FROM SOUTHERN ILLINOIS THAN TO DIXON.  THESE VARIATIONS IN
DISTANCE ARE DUE TO THE DIFFERENT ROUTES USED AND ALSO TO THE FACT THAT
FREQUENTLY THE GROUP RATE APPLIES FROM A LARGER NUMBER OR ORIGINS TO
ONE DESTINATION THAN TO ANOTHER.  THUS, TO DIXON THE SPRINGFIELD RATE
IS PUBLISHED FROM 61 ORIGINS ON 15 ORIGINATING RAILROADS, BUT TO AMBOY
THE RATE APPLIES FROM ONLY 23 ORIGINS ON 8 RAILROADS.  SO ALSO, THE
SOUTHERN ILLINOIS RATE APPLIES FROM 75 ORIGINS ON 7 ROADS TO DIXON AND
65 ORIGINS ON 5 ROADS TO AMBOY.  THE VARIATIONS IN DISTANCE THUS
BROUGHT ABOUT ARE MUCH GREATER FROM ILLINOIS GROUPS THAN FROM INDIANA
GROUPS.  IT IS PLAIN, THEREFORE, THAT COMPARISONS BASED ON DISTANCE,
ESPECIALLY AS BETWEEN INDIANA AND ILLINOIS GROUPS TO PARTICULAR
DESTINATIONS, CANNOT BE ACCEPTED AS CONTROLLING, BUT MUST BE EVALUATED
WITH THE ABOVE FACTS IN MIND." 

FN17  THE CONSUMER INTEREST TRADITIONALLY HAS BEEN PROMINENT IN THE
COMMISSION'S CONSIDERATION OF THE TYPE OF PROBLEM PRESENTED HERE.  SEE
ANDY'S RIDGE COAL CO. V. SOUTHERN R. CO., 18 I.C.C. 405, 410; WAUKESHA
LIME & STONE CO. V. CHICAGO, M., & ST. P.R. CO., SUPRA, AT 518, 519;
WISCONSIN & ARKANSAS LUMBER CO. V. ST. LOUIS, I.M. & S.R. CO., SUPRA,
AT 37, 38; SOUTHWESTERN INTERSTATE COAL OPERATORS' ASSN. V. ARKANSAS
W.R. CO., SUPRA, AT 85; COAL TO ILLINOIS AND WISCONSIN, SUPRA, AT 167,
169. 
..END :









HENSLEE V. UNION PLANTERS BANK, 335 U.S. 595 


NO. 90.  ARGUED DECEMBER 14, 1948.  - DECIDED JANUARY 3, 1949.  - 166
F.2D 993, REVERSED. 


UNDER A WILL THE TESTATOR'S ENTIRE ESTATE WAS LEFT IN TRUST FOR HIS 85
YEAR-OLD MOTHER DURING HER LIFETIME, AFTER WHICH CERTAIN SPECIFIC
BEQUESTS WERE MADE AND THE RESIDUE OF THE ESTATE WAS TO BE DIVIDED
EQUALLY AMONG FOUR NAMED CHARITIES.  THE TRUSTEES WERE DIRECTED TO PAY
THE MOTHER A STATED MONTHLY INCOME, EVEN IF IT SHOULD BECOME NECESSARY
TO INVADE THE CORPUS OF THE TRUST, WERE FURTHER AUTHORIZED TO UTILIZE
ANY PORTION OF THE CORPUS FOR HER "PLEASURE, COMFORT AND WELFARE" AND
WERE ADMONISHED THAT THE "FIRST OBJECT TO BE ACCOMPLISHED" WAS TO
PROVIDE FOR HER "IN SUCH MANNER AS SHE MAY DESIRE."  SHE DIED THREE
YEARS LATER WITHOUT INVADING THE CORPUS OF THE TRUST.  HELD:  UNDER
SEC. 812(D) OF THE INTERNAL REVENUE CODE, THE CHARITABLE BEQUESTS WERE
NOT DEDUCTIBLE FROM THE GROSS ESTATE FOR ESTATE TAX PURPOSES. 
MERCHANTS BANK V. COMMISSIONER, 320 U.S. 256.  PP. 595-600. 

HENSLEE, COLLECTOR OF INTERNAL REVENUE, V. UNION PLANTERS NATIONAL
BANK & TRUST CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

A FEDERAL DISTRICT COURT DISMISSED A SUIT FOR REFUND OF FEDERAL
ESTATE TAXES.  74 F.SUPP.  113.  THE COURT OF APPEALS REVERSED.  166
F.2D 993.  THIS COURT GRANTED CERTIORARI.  335 U.S. 811.  REVERSED, P.
600. 

PER CURIAM. 

RESPONDENTS ARE THE EXECUTORS AND TRUSTEES OF THE ESTATE OF WILLIAM
BATE WILLIAMS.  THEY BROUGHT THIS ACTION FOR REFUND, WITH INTEREST, OF
$35,899.12 OF FEDERAL ESTATE TAXES AND INTEREST PAID UNDER PROTEST. 
THE RELEVANT FACTS, SET FORTH IN RESPONDENTS' COMPLAINT AND ADMITTED BY
THE COLLECTOR'S MOTION TO DISMISS, ARE AS FOLLOWS: 

WILLIAM BATE WILLIAMS DIED IN 1943.  UNDER THE TERMS OF HIS WILL, THE
ENTIRE GROSS ESTATE OF $508,411.17 WAS BEQUEATHED TO RESPONDENTS TO
HOLD IN TRUST FOR THE TESTATOR'S 

"BELOVED MOTHER, ELIZABETH BATE WILLIAMS, FOR AND DURING HER NATURAL
LIFE, WITH THE FULL POWER AND AUTHORITY HEREIN CONFERRED. 

"I HEREBY DIRECT BOTH MY EXECUTORS AND MY TRUSTEES TO PAY TO MY
MOTHER THE SUM OF SEVEN HUNDRED FIFTY (750.00) DOLLARS A MONTH TO BE
USED BY HER AS SHE SEES FIT.  IN THE EVENT THE INCOME FROM MY ESTATE IS
NOT SUFFICIENT TO PAY THE SAID SEVEN HUNDRED FIFTY ($750.00) DOLLARS
EACH MONTH, THEN MY EXECUTORS AND TRUSTEES ARE HEREBY EMPOWERED,
AUTHORIZED AND DIRECTED TO ENCROACH ON THE CORPUS OF THE ESTATE TO PAY
SAID AMOUNT AND TO SELL ANY OF MY PROPERTY, REAL OR PERSONAL, FOR THIS
PURPOSE. 

"IN ADDITION TO THIS AMOUNT MY SAID EXECUTORS AND TRUSTEES ARE
AUTHORIZED AND EMPOWERED TO USE AND EXPEND IN THEIR DISCRETION ANY
PORTION OF MY ESTATE, EITHER INCOME OR PRINCIPAL, FOR THE PLEASURE,
COMFORT AND WELFARE OF MY MOTHER. 

"THE FIRST OBJECT TO BE ACCOMPLISHED IN THE ADMINISTRATION AND
MANAGEMENT OF MY ESTATE AND THIS TRUST IS TO TAKE CARE OF AND PROVIDE
FOR MY MOTHER IN SUCH MANNER AS SHE MAY DESIRE AND MY EXECUTORS AND
TRUSTEES ARE FULLY AUTHORIZED AND LIKEWISE DIRECTED TO MANAGE MY ESTATE
PRIMARILY FOR THIS PURPOSE." 

THE WILL WENT ON TO PROVIDE FOR DISTRIBUTION OF THE CORPUS OF THE
ESTATE REMAINING AT THE MOTHER'S DEATH.  TWENTY-FIVE PER CENT OF THE
TOTAL REMAINING ESTATE WAS BEQUEATHED TO THE TESTATOR'S COUSIN, AND
STATED SUMS IN CASH WERE LEFT TO OTHER NAMED LEGATEES.  AFTER THESE
LEGACIES, THE BALANCE OF THE ESTATE WAS DIRECTED TO BE PAID OVER TO
FOUR NAMED CHARITIES, IN EQUAL SHARES. 

AT THE TIME OF THE TESTATOR'S DEATH THE ESTATE WAS EARNING A NET
INCOME OF APPROXIMATELY $15,000 PER YEAR, $6,000 MORE THAN THE AMOUNT
DIRECTED TO BE PAID, AT $750 PER MONTH, TO THE TESTATOR'S MOTHER.  THE
MOTHER AT THAT TIME WAS EIGHTY-FIVE YEARS OLD, LIVED ON SUBSTANTIALLY
LESS THAN $750 PER MONTH, AND HAD INDEPENDENT INVESTMENTS WORTH
APPROXIMATELY $100,000 WHICH NETTED HER AN INCOME OF ABOUT $300 PER
MONTH.  A WOMAN OF MODERATE NEEDS AND WITHOUT DEPENDENTS, SHE DIED
THREE YEARS LATER WITHOUT HAVING REQUESTED RESPONDENTS TO INVADE THE
TRUST CORPUS IN HER BEHALF. 

THE DISPUTED ESTATE TAX LIABILITY RESULTED FROM RESPONDENTS' ATTEMPT
TO DEDUCT FROM THE GROSS ESTATE THE PORTION BEQUEATHED TO THE FOUR
CHARITIES, IN RELIANCE ON THE CHARITABLE DEDUCTION PROVISION OF SEC.
812(D) OF THE INTERNAL REVENUE CODE.  FN1  THE COMMISSIONER DENIED THE
DEDUCTION.  THE COLLECTOR HERE RESISTS THE REFUND CLAIM, ON THE GROUND
THAT THE POSSIBILITY OF INVASION OF THE CORPUS ON BEHALF OF THE
TESTATOR'S MOTHER PREVENTED THE ULTIMATE CHARITABLE INTEREST, AT THE
TESTATOR'S DEATH, FROM BEING "PRESENTLY ASCERTAINABLE, AND HENCE
SEVERABLE FROM THE INTEREST IN FAVOR OF THE PRIVATE USE," WITHIN THE
MEANING OF THE APPLICABLE TREASURY REGULATION.  FN2 

ON THE AUTHORITY OF MERCHANTS BANK V. COMMISSIONER, 320 U.S. 256, THE
DISTRICT COURT GRANTED THE COLLECTOR'S MOTION TO DISMISS.  74 F.SUPP. 
113.  THE COURT OF APPEALS REVERSED.  166 F.2D 993.  IT HELD THAT,
NOTWITHSTANDING THE LANGUAGE OF THE TESTAMENTARY PROVISION FOR THE
"PLEASURE, COMFORT AND WELFARE" OF THE MOTHER, THE COMPLAINT'S
ALLEGATIONS OF THE MOTHER'S GREAT AGE, INDEPENDENT MEANS AND MODEST
TASTES RAISED A TRIABLE ISSUE OF FACT AS TO WHETHER THE TRUST CORPUS
WAS THREATENED WITH INVASION AND THE CHARITABLE INTEREST HENCE SUBJECT
TO DEPLETION IN FAVOR OF THE TESTATOR'S MOTHER. 

WE AGREE WITH THE DISTRICT COURT THAT THIS CASE IS GOVERNED BY THE
DECISION IN THE MERCHANTS BANK CASE AND THAT THE SUIT SHOULD BE
DISMISSED.  IT IS APPARENT ON THE FACE OF THE COMPLAINT THAT THIS
TESTATOR'S WILL DID NOT LIMIT THE TRUSTEES' DISBURSEMENTS TO CONFORMITY
WITH SOME READY STANDARD - AS WHERE, FOR EXAMPLE, TRUSTEES ARE TO
PROVIDE THE PRIME BENEFICIARY WITH SUCH SUMS AS "MAY BE NECESSARY TO
SUITABLY MAINTAIN HER IN AS MUCH COMFORT AS SHE NOW ENJOYS."  ITHACA
TRUST CO. V. UNITED STATES, 279 U.S. 151, 154.  THE STATED INCOME HERE
DIRECTED TO BE PAID TO THE MOTHER WAS "TO BE USED BY HER AS SHE SEES
FIT."  BEYOND THIS THE TRUSTEES WERE EMPOWERED TO INVADE OR WHOLLY
UTILIZE THE CORPUS OF THE ESTATE FOR THE MOTHER'S "PLEASURE, COMFORT
AND WELFARE," BEARING IN MIND THE TESTATOR'S INJUNCTION THAT "THE FIRST
OBJECT TO BE ACCOMPLISHED  ...  IS TO TAKE CARE OF AND PROVIDE FOR MY
MOTHER IN SUCH MANNER AS SHE MAY DESIRE  ..."  FN3  AS IN THE MERCHANTS
BANK CASE, WHERE THE TRUSTEES HAD DISCRETION TO DISBURSE SUMS FOR THE
"COMFORT, SUPPORT, MAINTENANCE, AND/OR HAPPINESS" OF THE PRIME
BENEFICIARY, SO HERE WE THINK IT THE "SALIENT FACT  ...  THAT THE
PURPOSES FOR WHICH THE WIDOW COULD, AND MIGHT WISH TO HAVE THE FUNDS
SPENT DO NOT LEND THEMSELVES TO RELIABLE PREDICTION."  320 U.S. 256,
258, 262. 

WE DO NOT OVERLOOK THE UNLIKELIHOOD THAT A WOMAN OF THE MOTHER'S AGE
AND CIRCUMSTANCES WOULD ABANDON HER CUSTOMARY FRUGALITY AND SQUANDER
HER SON'S WEALTH.  BUT, THOUGH THERE MAY HAVE BEEN LITTLE CHANCE OF
THAT EXTRAVAGANCE WHICH WOULD WASTE A PART OR CONSUME THE WHOLE OF THE
CHARITABLE INTEREST, THAT CHANCE REMAINED.  WHAT COMMON EXPERIENCE
MIGHT REGARD AS REMOTE IN THE GENERALITY OF CASES MAY NONETHELESS BE
BEYOND THE REALM OF PRECISE PREDICTION IN THE SINGLE INSTANCE.  THE
CONTINGENCY WHICH WOULD HAVE DIMINISHED OR DESTROYED THE CHARITABLE
INTEREST HERE CONSIDERED MIGHT WELL HAVE BEEN INSURED AGAINST, BUT SUCH
AN ARITHMETIC GENERALIZATION OF EXPERIENCE WOULD NOT HAVE MADE THIS
CHARITABLE INTEREST "PRESENTLY ASCERTAINABLE.""  FN4  ROUGH GUESSES,
APPROXIMATIONS, OR EVEN THE RELATIVELY ACCURATE VALUATIONS ON WHICH THE
MARKET PLACE MIGHT BE WILLING TO ACT ARE NOT SUFFICIENT."  MERCHANTS
BANK V. COMMISSIONER, SUPRA AT 261. 

NOR DO WE THINK IT SIGNIFICANT THAT THE TRUST CORPUS WAS INTACT AT
THE MOTHER'S DEATH, FOR THE TEST OF PRESENT ASCERTAINABILITY OF THE
ULTIMATE CHARITABLE INTEREST IS APPLIED "AT THE DEATH OF THE
TESTATOR."  IBID.  THE CHARITABLE DEDUCTION IS A MATTER OF
CONGRESSIONAL GRACE, AND IT IS FOR CONGRESS TO DETERMINE THE
ADVISABILITY OF PERMITTING AMENDMENT OF ESTATE TAX RETURNS AT SUCH TIME
AS THE PROBABLE VESTING OF THE CHARITABLE INTEREST HAS REDUCED ITSELF
TO UNALTERABLE FACT.  REVERSED. 

FN1  26 U.S.C. SEC. 812(D), 53 STAT. 124-125, AS AMENDED BY REVENUE
ACT OF 1942, SEC. 408(A), 56 STAT. 949, AND REVENUE ACT OF 1943, SEC.
511(A), 58 STAT. 74-75. 

FN2  "IF A TRUST IS CREATED FOR BOTH A CHARITABLE AND A PRIVATE
PURPOSE, DEDUCTION MAY BE TAKEN OF THE VALUE OF THE BENEFICIAL INTEREST
IN FAVOR OF THE FORMER ONLY INSOFAR AS SUCH INTEREST IS PRESENTLY
ASCERTAINABLE, AND HENCE SEVERABLE FROM THE INTEREST IN FAVOR OF THE
PRIVATE USE.  ..."  U.S. TREAS. REG. 105 SEC. 81.44(1942).  CF. ID. AT
SEC. 81.46:  "IF THE LEGATEE, DEVISEE, DONEE, OR TRUSTEE IS EMPOWERED
TO DIVERT THE PROPERTY OR FUND, IN WHOLE OR IN PART, TO A USE OR
PURPOSE WHICH WOULD HAVE RENDERED IT, TO THE EXTENT THAT IT IS SUBJECT
TO SUCH POWER, NOT DEDUCTIBLE HAD IT BEEN DIRECTLY SO BEQUEATHED,
DEVISED, OR GIVEN BY THE DECEDENT, DEDUCTION WILL BE LIMITED TO THAT
PORTION, IF ANY, OF THE PROPERTY OR FUND WHICH IS EXEMPT FROM AN
EXERCISE OF SUCH POWER." 

FN3  IN VIEW OF THE EXPRESS PRIORITY ACCORDED THE MOTHER'S WISHES,
RESPONDENTS' FIDUCIARY DUTY TO THE ULTIMATE BENEFICIARIES, PRIVATE AND
CHARITABLE, WAS INEFFECTIVE TO GUARANTEE PRESERVATION OF ANY
PREDICTABLE FRACTION OF THE CORPUS FOR DISPOSITION AFTER THE MOTHER'S
DEATH.  THE TESTATOR, INDEED, MADE THE GIFTS TO CHARITY SUBORDINATE NOT
ONLY TO HIS MOTHER'S INTEREST BUT TO THAT OF ALL THE PRIVATE
BENEFICIARIES, STATING IN HIS WILL THAT THE CHARITABLE INTEREST "IS A
RESIDUARY BEQUEST  ...  AND IS NOT TO INFRINGE ON ANY OF THE OTHER
LEGACIES HEREINBEFORE PROVIDED." 

FN4  "...  (THE) FUNDAMENTAL QUESTION IN THE CASE AT BAR, IS NOT
WHETHER THIS CONTINGENT INTEREST CAN BE INSURED AGAINST OR ITS VALUE
GUESSED AT, BUT WHAT CONSTRUCTION SHALL BE GIVEN TO A STATUTE.  DID
CONGRESS IN PROVIDING FOR THE DETERMINATION OF THE NET ESTATE TAXABLE,
INTEND THAT A DEDUCTION SHOULD BE MADE FOR A CONTINGENCY, THE ACTUAL
VALUE OF WHICH CANNOT BE DETERMINED FROM ANY KNOWN DATA?  NEITHER
TAXPAYER, NOR REVENUE OFFICER - EVEN IF EQUIPPED WITH ALL THE AID WHICH
THE ACTUARIAL ART CAN SUPPLY - COULD DO MORE THAN GUESS AT THE VALUE OF
THIS CONTINGENCY.  IT IS CLEAR THAT CONGRESS DID NOT INTEND THAT A
DEDUCTION SHOULD BE MADE FOR A CONTINGENT GIFT OF THAT CHARACTER." 
HUMES V. UNITED STATES, 276 U.S. 487, 494. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON DISSENT UPON THE GROUNDS
STATED IN DISSENT IN MERCHANTS BANK V. COMMISSIONER, 320 U.S. 256, AT
263. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

WISDOM TOO OFTEN NEVER COMES, AND SO ONE OUGHT NOT TO REJECT IT
MERELY BECAUSE IT COMES LATE.  SINCE I NOW REALIZE THAT I SHOULD HAVE
JOINED THE DISSENTERS IN THE MERCHANTS BANK CASE, 320 U.S. 256, I SHALL
NOT COMPOUND ERROR BY PUSHING THAT DECISION STILL FARTHER.  I WOULD
AFFIRM THE JUDGMENT, SUBSTANTIALLY FOR THE REASONS GIVEN BELOW.  166
F.2D 993. 
..END :






GOESAERT V. CLEARY, 335 U.S. 464 


NO. 49.  ARGUED NOVEMBER 19, 1948.  - DECIDED DECEMBER 20, 1948.  - 74
F.SUPP.  735, AFFIRMED. 


MICH. STAT. ANN. (CUM. SUPP. 1947) SEC. 18.990(1), WHICH IN EFFECT
FORBIDS ANY FEMALE TO ACT AS A BARTENDER UNLESS SHE BE "THE WIFE OR
DAUGHTER OF THE MALE OWNER" OF A LICENSED LIQUOR ESTABLISHMENT, DOES
NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
PP. 465-467. 

(A)  THE CLASSIFICATION WHICH MICHIGAN HAS MADE AS BETWEEN WIVES AND
DAUGHTERS OF OWNERS OF LIQUOR ESTABLISHMENTS AND WIVES AND DAUGHTERS OF
NON-OWNERS IS NOT WITHOUT A REASONABLE BASIS.  PP. 465-467. 

(B)  NOR IS THE STATUTE RENDERED UNCONSTITUTIONAL BECAUSE MICHIGAN
ALLOWS WOMEN TO SERVE AS WAITRESSES WHERE LIQUOR IS DISPENSED.  P.
467. 

GOESAERT ET AL. V. CLEARY ET AL., MEMBERS OF THE LIQUOR CONTROL
COMMISSION OF MICHIGAN. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN. 

A THREE-JUDGE FEDERAL DISTRICT COURT DENIED AN INJUNCTION TO RESTRAIN
ENFORCEMENT OF MICH. STAT. ANN. (CUM. SUPP. 1947) SEC. 18.990(1), IN
EFFECT FORBIDDING ANY FEMALE TO ACT AS A BARTENDER UNLESS SHE BE "THE
WIFE OR DAUGHTER OF THE MALE OWNER" OF A LICENSED LIQUOR
ESTABLISHMENT.  74 F.SUPP.  735.  ON APPEAL TO THIS COURT, AFFIRMED, P.
467. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

AS PART OF THE MICHIGAN SYSTEM FOR CONTROLLING THE SALE OF LIQUOR,
BARTENDERS ARE REQUIRED TO BE LICENSED IN ALL CITIES HAVING A
POPULATION OF 50,000 OR MORE, BUT NO FEMALE MAY BE SO LICENSED UNLESS
SHE BE "THE WIFE OR DAUGHTER OF THE MALE OWNER" OF A LICENSED LIQUOR
ESTABLISHMENT.  SECTION 19A OF ACT 133 OF THE PUBLIC ACTS OF MICHIGAN,
1945, MICH. STAT. ANN. SEC. 18.990(1)(CUM.  SUPP.  1947).  THE CASE IS
HERE ON DIRECT APPEAL FROM AN ORDER OF THE DISTRICT COURT OF THREE
JUDGES, CONVENED UNDER SEC. 266 OF THE OLD JUDICIAL CODE, NOW 28 U.S.C.
SEC. 2284, DENYING AN INJUNCTION TO RESTRAIN THE ENFORCEMENT OF THE
MICHIGAN LAW.  THE CLAIM, DENIED BELOW, ONE JUDGE DISSENTING, 74
F.SUPP.  735, AND RENEWED HERE, IS THAT MICHIGAN CANNOT FORBID FEMALES
GENERALLY FROM BEING BARMAIDS AND AT THE SAME TIME MAKE AN EXCEPTION IN
FAVOR OF THE WIVES AND DAUGHTERS OF THE OWNERS OF LIQUOR
ESTABLISHMENTS.  BEGUILING AS THE SUBJECT IS, IT NEED NOT DETAIN US
LONG.  TO ASK WHETHER OR NOT THE EQUAL PROTECTION OF THE LAWS CLAUSE OF
THE FOURTEENTH AMENDMENT BARRED MICHIGAN FROM MAKING THE CLASSIFICATION
THE STATE HAS MADE BETWEEN WIVES AND DAUGHTERS OF OWNERS OF LIQUOR
PLACES AND WIVES AND DAUGHTERS OF NON-OWNERS, IS ONE OF THOSE RARE
INSTANCES WHERE TO STATE THE QUESTION IS IN EFFECT TO ANSWER IT. 

WE ARE, TO BE SURE, DEALING WITH A HISTORIC CALLING.  WE MEET THE
ALEWIFE, SPRIGHTLY AND RIBALD, IN SHAKESPEARE, BUT CENTURIES BEFORE HIM
SHE PLAYED A ROLE IN THE SOCIAL LIFE OF ENGLAND.  SEE, E.G., JUSSERAND,
ENGLISH WAYFARING LIFE IN THE MIDDLE AGES, 133, 134, 136-37(1889).  THE
FOURTEENTH AMENDMENT DID NOT TEAR HISTORY UP BY THE ROOTS, AND THE
REGULATION OF THE LIQUOR TRAFFIC IS ONE OF THE OLDEST AND MOST
UNTRAMMELED OF LEGISLATIVE POWERS.  MICHIGAN COULD, BEYOND QUESTION,
FORBID ALL WOMEN FROM WORKING BEHIND A BAR.  THIS IS SO DESPITE THE
VAST CHANGES IN THE SOCIAL AND LEGAL POSITION OF WOMEN.  THE FACT THAT
WOMEN MAY NOW HAVE ACHIEVED THE VIRTUES THAT MEN HAVE LONG CLAIMED AS
THEIR PREROGATIVES AND NOW INDULGE IN VICES THAT MEN HAVE LONG
PRACTICED, DOES NOT PRECLUDE THE STATES FROM DRAWING A SHARP LINE
BETWEEN THE SEXES, CERTAINLY IN SUCH MATTERS AS THE REGULATION OF THE
LIQUOR TRAFFIC.  SEE THE TWENTY-FIRST AMENDMENT AND CARTER V. VIRGINIA,
321 U.S. 131.  THE CONSTITUTION DOES NOT REQUIRE LEGISLATURES TO
REFLECT SOCIOLOGICAL INSIGHT, OR SHIFTING SOCIAL STANDARDS, ANY MORE
THAN IT REQUIRES THEM TO KEEP ABREAST OF THE LATEST SCIENTIFIC
STANDARDS. 

WHILE MICHIGAN MAY DENY TO ALL WOMEN OPPORTUNITIES FOR BARTENDING,
MICHIGAN CANNOT PLAY FAVORITES AMONG WOMEN WITHOUT RHYME OR REASON. 
THE CONSTITUTION IN ENJOINING THE EQUAL PROTECTION OF THE LAWS UPON
STATES PRECLUDES IRRATIONAL DISCRIMINATION AS BETWEEN PERSONS OR GROUPS
OF PERSONS IN THE INCIDENCE OF A LAW.  BUT THE CONSTITUTION DOES NOT
REQUIRE SITUATIONS "WHICH ARE DIFFERENT IN FACT OR OPINION TO BE
TREATED IN LAW AS THOUGH THEY WERE THE SAME."  TIGNER V. TEXAS, 310
U.S. 141, 147.  SINCE BARTENDING BY WOMEN MAY, IN THE ALLOWABLE
LEGISLATIVE JUDGMENT, GIVE RISE TO MORAL AND SOCIAL PROBLEMS AGAINST
WHICH IT MAY DEVISE PREVENTIVE MEASURES, THE LEGISLATURE NEED NOT GO TO
THE FULL LENGTH OF PROHIBITION IF IT BELIEVES THAT AS TO A DEFINED
GROUP OF FEMALES OTHER FACTORS ARE OPERATING WHICH EITHER ELIMINATE OR
REDUCE THE MORAL AND SOCIAL PROBLEMS OTHERWISE CALLING FOR
PROHIBITION.  MICHIGAN EVIDENTLY BELIEVES THAT THE OVERSIGHT ASSURED
THROUGH OWNERSHIP OF A BAR BY A BARMAID'S HUSBAND OR FATHER MINIMIZES
HAZARDS THAT MAY CONFRONT A BARMAID WITHOUT SUCH PROTECTING OVERSIGHT. 
THIS COURT IS CERTAINLY NOT IN A POSITION TO GAINSAY SUCH BELIEF BY THE
MICHIGAN LEGISLATURE.  IF IT IS ENTERTAINABLE, AS WE THINK IT IS,
MICHIGAN HAS NOT VIOLATED ITS DUTY TO AFFORD EQUAL PROTECTION OF ITS
LAWS.  WE CANNOT CROSS-EXAMINE EITHER ACTUALLY OR ARGUMENTATIVELY THE
MIND OF MICHIGAN LEGISLATORS NOR QUESTION THEIR MOTIVES.  SINCE THE
LINE THEY HAVE DRAWN IS NOT WITHOUT A BASIS IN REASON, WE CANNOT GIVE
EAR TO THE SUGGESTION THAT THE REAL IMPULSE BEHIND THIS LEGISLATION WAS
AN UNCHIVALROUS DESIRE OF MALE BARTENDERS TO TRY TO MONOPOLIZE THE
CALLING. 

IT WOULD BE AN IDLE PARADE OF FAMILIAR LEARNING TO REVIEW THE
MULTITUDINOUS CASES IN WHICH THE CONSTITUTIONAL ASSURANCE OF THE EQUAL
PROTECTION OF THE LAWS HAS BEEN APPLIED.  THE GENERALITIES ON THIS
SUBJECT ARE NOT IN DISPUTE; THEIR APPLICATION TURNS PECULIARLY ON THE
PARTICULAR CIRCUMSTANCES OF A CASE.  THUS, IT WOULD BE A STERILE
INQUIRY TO CONSIDER WHETHER THIS CASE IS NEARER TO THE NEPOTIC PILOTAGE
LAW OF LOUISIANA, SUSTAINED IN KOTCH V. PILOT COMMISSIONERS, 330 U.S.
552, THAN IT IS TO THE OKLAHOMA STERILIZATION LAW, WHICH FELL IN
SKINNER V. OKLAHOMA, 316 U.S. 535.  SUFFICE IT TO SAY THAT "A STATUTE
IS NOT INVALID UNDER THE CONSTITUTION BECAUSE IT MIGHT HAVE GONE
FARTHER THAN IT DID, OR BECAUSE IT MAY NOT SUCCEED IN BRINGING ABOUT
THE RESULT THAT IT TENDS TO PRODUCE."  ROSCHEN V. WARD, 279 U. S. 337,
339. 

NOR IS IT UNCONSTITUTIONAL FOR MICHIGAN TO WITHDRAW FROM WOMEN THE
OCCUPATION OF BARTENDING BECAUSE IT ALLOWS WOMEN TO SERVE AS WAITRESSES
WHERE LIQUOR IS DISPENSED.  THE DISTRICT COURT HAS SUFFICIENTLY
INDICATED THE REASONS THAT MAY HAVE INFLUENCED THE LEGISLATURE IN
ALLOWING WOMEN TO BE WAITRESSES IN A LIQUOR ESTABLISHMENT OVER WHICH A
MAN'S OWNERSHIP PROVIDES CONTROL.  NOTHING NEED BE ADDED TO WHAT WAS
SAID BELOW AS TO THE OTHER GROUNDS ON WHICH THE MICHIGAN LAW WAS
ASSAILED.  JUDGMENT AFFIRMED. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MURPHY JOIN, DISSENTING. 

WHILE THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE A LEGISLATURE TO
ACHIEVE "ABSTRACT SYMMETRY" FN1  OR TO CLASSIFY WITH "MATHEMATICAL
NICETY,"  FN2  THAT CLAUSE DOES REQUIRE LAWMAKERS TO REFRAIN FROM
INVIDIOUS DISTINCTIONS OF THE SORT DRAWN BY THE STATUTE CHALLENGED IN
THIS CASE.  FN3 

THE STATUTE ARBITRARILY DISCRIMINATES BETWEEN MALE AND FEMALE OWNERS
OF LIQUOR ESTABLISHMENTS.  A MALE OWNER, ALTHOUGH HE HIMSELF IS ALWAYS
ABSENT FROM HIS BAR, MAY EMPLOY HIS WIFE AND DAUGHTER AS BARMAIDS.  A
FEMALE OWNER MAY NEITHER WORK AS A BARMAID HERSELF NOR EMPLOY HER
DAUGHTER IN THAT POSITION, EVEN IF A MAN IS ALWAYS PRESENT IN THE
ESTABLISHMENT TO KEEP ORDER.  THIS INEVITABLE RESULT OF THE
CLASSIFICATION BELIES THE ASSUMPTION THAT THE STATUTE WAS MOTIVATED BY
A LEGISLATIVE SOLICITUDE FOR THE MORAL AND PHYSICAL WELL-BEING OF WOMEN
WHO, BUT FOR THE LAW, WOULD BE EMPLOYED AS BARMAIDS.  SINCE THERE COULD
BE NO OTHER CONCEIVABLE JUSTIFICATION FOR SUCH DISCRIMINATION AGAINST
WOMEN OWNERS OF LIQUOR ESTABLISHMENTS, THE STATUTE SHOULD BE HELD
INVALID AS A DENIAL OF EQUAL PROTECTION. 

FN1 PATSONE V. PENNSYLVANIA, 232 U.S. 138, 144. 

FN2  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-82; SEE
ALSO TIGNER V. TEXAS, 310 U.S. 141, 147; BAIN PEANUT CO. V. PINSON, 282
U.S. 499, 501; BRYANT V. ZIMMERMAN, 278 U.S. 63, 73-77; MILLER V.
WILSON, 236 U.S. 373, 384. 

FN3  CF. SKINNER V. OKLAHOMA, 316 U.S. 535; MISSOURI EX REL. GAINES
V. CANADA, 305 U.S. 337; MCCABE V. ATCHISON, T. & S.F.R. CO., 235 U.S.
151; YICK WO V. HOPKINS, 118 U.S. 356.  AND SEE KOTCH V. PILOT
COMMISSIONERS, 330 U.S. 552, DISSENTING OPINION 564. 
..END :






MICHELSON V. UNITED STATES, 335 U.S. 469 


NO. 23.  ARGUED OCTOBER 14-15, 1948.  - DECIDED DECEMBER 20, 1948.  -
165 F.2D 732, AFFIRMED. 


1.  IN A TRIAL IN A FEDERAL COURT FOR BRIBERY OF A FEDERAL OFFICER,
THE DEFENDANT ADMITTED THE PAYMENT BUT CLAIMED THAT IT WAS INDUCED BY
THE OFFICER, AND THE CASE HINGED ON WHETHER THE JURY BELIEVED THE
DEFENDANT OR THE OFFICER.  THE DEFENDANT'S CHARACTER WITNESSES
TESTIFIED THAT THEY HAD KNOWN THE DEFENDANT FOR FROM 15 TO 30 YEARS AND
THAT HE HAD A GOOD REPUTATION FOR "HONESTY AND TRUTHFULNESS" AND FOR
"BEING A LAW-ABIDING CITIZEN."  IN CROSS-EXAMINING THEM, THE PROSECUTOR
WAS PERMITTED TO ASK WHETHER THEY HAD HEARD THAT THE ACCUSED HAD BEEN
ARRESTED 27 YEARS PREVIOUSLY FOR RECEIVING STOLEN GOODS.  THE TRIAL
JUDGE HAD SATISFIED HIMSELF IN THE ABSENCE OF THE JURY THAT THE
QUESTION RELATED TO AN ACTUAL OCCURRENCE, AND HE CAREFULLY INSTRUCTED
THE JURY AS TO THE LIMITED PURPOSE OF THIS EVIDENCE.  HELD:  IN THE
CIRCUMSTANCES OF THIS CASE AND IN VIEW OF THE CARE TAKEN BY THE TRIAL
JUDGE TO PROTECT THE RIGHTS OF THE DEFENDANT, PERMITTING THE PROSECUTOR
TO ASK THIS QUESTION WAS NOT REVERSIBLE ERROR.  PP. 470-487. 

2.  THE LAW DOES NOT INVEST THE DEFENDANT WITH A PRESUMPTION OF GOOD
CHARACTER; IT SIMPLY CLOSES THE WHOLE MATTER OF CHARACTER, DISPOSITION
AND REPUTATION ON THE PROSECUTION'S CASE-IN-CHIEF.  THE DEFENDANT MAY
INTRODUCE EVIDENCE TENDING TO PROVE HIS GOOD REPUTATION; BUT, IF HE
DOES SO, IT THROWS OPEN THE ENTIRE SUBJECT AND THE PROSECUTION MAY THEN
CROSS-EXAMINE DEFENDANT'S WITNESSES TO TEST THEIR CREDIBILITY AND
QUALIFICATIONS AND MAY ALSO INTRODUCE CONTRADICTORY EVIDENCE.  PP. 475
479. 

3.  BOTH THE PROPRIETY AND ABUSE OF HEARSAY REPUTATION TESTIMONY, ON
BOTH SIDES, DEPEND ON NUMEROUS AND SUBTLE CONSIDERATIONS, DIFFICULT TO
DETECT OR APPRAISE FROM A COLD RECORD.  THEREFORE, RARELY AND ONLY ON
CLEAR SHOWING OF PREJUDICIAL ABUSE OF DISCRETION, WILL APPELLATE COURTS
DISTURB RULINGS OF TRIAL COURTS ON THIS SUBJECT.  P. 480. 

4.  IN THIS CASE, THE TRIAL JUDGE WAS SCRUPULOUS TO SAFEGUARD THE
PRACTICE AGAINST ANY MISUSE.  P. 481. 

5.  A CHARACTER WITNESS MAY BE CROSS-EXAMINED AS TO KNOWLEDGE OF
RUMORS OF DEFENDANT'S PRIOR ARREST, WHETHER OR NOT IT CULMINATED IN A
CONVICTION.  PP. 482-483. 

6.  IT IS NOT ONLY BY COMPARISON WITH THE CRIME ON TRIAL BUT BY
COMPARISON WITH THE REPUTATION ASSERTED THAT A COURT MAY JUDGE WHETHER
THE PRIOR ARREST SHOULD BE MADE THE SUBJECT OF INQUIRY.  PP. 483-484. 

7.  THAT THE INQUIRY CONCERNED AN ARREST 27 YEARS BEFORE THE TRIAL
DID NOT MAKE ITS ADMISSION AN ABUSE OF DISCRETION IN THE CIRCUMSTANCES
OF THIS CASE - ESPECIALLY SINCE TWO OF THE WITNESSES HAD TESTIFIED THAT
THEY HAD KNOWN DEFENDANT FOR 30 YEARS, DEFENDANT, ON DIRECT
EXAMINATION, HAD VOLUNTARILY CALLED ATTENTION TO HIS CONVICTION OF A
MISDEMEANOR 20 YEARS BEFORE, AND SINCE NO OBJECTION WAS MADE ON THIS
SPECIFIC GROUND.  P. 484. 

8.  NOTWITHSTANDING THE DIFFICULTY WHICH A JURY MIGHT HAVE IN
COMPREHENDING INSTRUCTIONS AS TO THE LIMITED PURPOSE OF SUCH EVIDENCE,
A DEFENDANT WHO ELECTS TO INTRODUCE WITNESSES TO PROVE HIS GOOD
REPUTATION FOR HONESTY AND TRUTHFULNESS AND FOR BEING A LAW-ABIDING
CITIZEN HAS NO VALID COMPLAINT ABOUT THE LATITUDE WHICH EXISTING LAW
ALLOWS TO THE PROSECUTION TO MEET THIS ISSUE BY CROSS-EXAMINATION OF
HIS CHARACTER WITNESSES.  PP. 484-485. 

MICHELSON V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT OF BRIBING A
FEDERAL OFFICER.  THE COURT OF APPEALS AFFIRMED.  165 F.2D 732.  THIS
COURT GRANTED CERTIORARI.  333 U.S. 866.  AFFIRMED, P. 487. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

IN 1947 PETITIONER MICHELSON WAS CONVICTED OF BRIBING A FEDERAL
REVENUE AGENT.  FN1  THE GOVERNMENT PROVED A LARGE PAYMENT BY ACCUSED
TO THE AGENT FOR THE PURPOSE OF INFLUENCING HIS OFFICIAL ACTION.  THE
DEFENDANT, AS A WITNESS ON HIS OWN BEHALF, ADMITTED PASSING THE MONEY
BUT CLAIMED IT WAS DONE IN RESPONSE TO THE AGENT'S DEMANDS, THREATS,
SOLICITATIONS, AND INDUCEMENTS THAT AMOUNTED TO ENTRAPMENT.  IT IS
ENOUGH FOR OUR PURPOSES TO SAY THAT DETERMINATION OF THE ISSUE TURNED
ON WHETHER THE JURY SHOULD BELIEVE THE AGENT OR THE ACCUSED.  FN2 

ON DIRECT EXAMINATION OF DEFENDANT, HIS OWN COUNSEL BROUGHT OUT THAT,
IN 1927, HE HAD BEEN CONVICTED OF A MISDEMEANOR HAVING TO DO WITH
TRADING IN COUNTERFEIT WATCH DIALS.  ON CROSS-EXAMINATION IT APPEARED
THAT IN 1930, IN EXECUTING AN APPLICATION FOR A LICENSE TO DEAL IN
SECOND-HAND JEWELRY, HE ANSWERED "NO" TO THE QUESTION WHETHER HE HAD
THERETOFORE BEEN ARRESTED OR SUMMONED FOR ANY OFFENSE. 

DEFENDANT CALLED FIVE WITNESSES TO PROVE THAT HE ENJOYED A GOOD
REPUTATION.  TWO OF THEM TESTIFIED THAT THEIR ACQUAINTANCE WITH HIM
EXTENDED OVER A PERIOD OF ABOUT THIRTY YEARS AND THE OTHERS SAID THEY
HAD KNOWN HIM AT LEAST HALF THAT LONG.  A TYPICAL EXAMINATION IN CHIEF
WAS AS FOLLOWS: 

"Q.  DO YOU KNOW THE DEFENDANT MICHELSON? 

"A.  YES. 

"Q.  HOW LONG DO YOU KNOW MR. MICHELSON? 

"A.  ABOUT 30 YEARS. 

"Q.  DO YOU KNOW OTHER PEOPLE WHO KNOW HIM? 

"A.  YES. 

"Q.  HAVE YOU HAD OCCASION TO DISCUSS HIS REPUTATION FOR HONESTY AND
TRUTHFULNESS AND FOR BEING A LAW-ABIDING CITIZEN? 

"A.  IT IS VERY GOOD. 

"Q.  YOU HAVE TALKED TO OTHERS? 

"A.  YES. 

"Q.  AND WHAT IS HIS REPUTATION? 

"A.  VERY GOOD." 

THESE ARE REPRESENTATIVE OF ANSWERS BY THREE WITNESSES; TWO OTHERS
REPLIED, IN SUBSTANCE, THAT THEY NEVER HAD HEARD ANYTHING AGAINST
MICHELSON. 

ON CROSS-EXAMINATION, FOUR OF THE WITNESSES WERE ASKED, IN SUBSTANCE,
THIS QUESTION:  "DID YOU EVER HEAR THAT MR. MICHELSON ON MARCH 4, 1927,
WAS CONVICTED OF A VIOLATION OF THE TRADEMARK LAW IN NEW YORK CITY IN
REGARD TO WATCHES?"  THIS REFERRED TO THE TWENTY-YEAR-OLD CONVICTION
ABOUT WHICH DEFENDANT HIMSELF HAD TESTIFIED ON DIRECT EXAMINATION.  TWO
OF THEM HAD HEARD OF IT AND TWO HAD NOT. 

TO FOUR OF THESE WITNESSES THE PROSECUTION ALSO ADDRESSED THE
QUESTION THE ALLOWANCE OF WHICH, OVER DEFENDANT'S OBJECTION, IS CLAIMED
TO BE REVERSIBLE ERROR: 

"DID YOU EVER HEAR THAT ON OCTOBER 11, 1920, THE DEFENDANT, SOLOMON
MICHELSON, WAS ARRESTED FOR RECEIVING STOLEN GOODS?" 

NONE OF THE WITNESSES APPEARS TO HAVE HEARD OF THIS.  THE TRIAL COURT
ASKED COUNSEL FOR THE PROSECUTION, OUT OF PRESENCE OF THE JURY, "IS IT
A FACT ACCORDING TO THE BEST INFORMATION IN YOUR POSSESSION, THAT
MICHELSON WAS ARRESTED FOR RECEIVING STOLEN GOODS?"  COUNSEL REPLIED
THAT IT WAS, AND TO SUPPORT HIS GOOD FAITH EXHIBITED A PAPER RECORD
WHICH DEFENDANT'S COUNSEL DID NOT CHALLENGE. 

THE JUDGE ALSO ON THREE OCCASIONS WARNED THE JURY, IN TERMS THAT ARE
NOT CRITICIZED, OF THE LIMITED PURPOSE FOR WHICH THIS EVIDENCE WAS
RECEIVED.  FN3 

DEFENDANT-PETITIONER CHALLENGES THE RIGHT OF THE PROSECUTION SO TO
CROSS-EXAMINE HIS CHARACTER WITNESSES.  THE COURT OF APPEALS HELD THAT
IT WAS PERMISSIBLE.  THE OPINION, HOWEVER, POINTS OUT THAT THE PRACTICE
HAS BEEN SEVERELY CRITICIZED AND INVITES US, IN ONE RESPECT, TO CHANGE
THE RULE.  FN4  SERIOUS AND RESPONSIBLE CRITICISM HAS BEEN AIMED,
HOWEVER, NOT ALONE AT THE DETAIL NOW QUESTIONED BY THE COURT OF APPEALS
BUT AT COMMON-LAW DOCTRINE ON THE WHOLE SUBJECT OF PROOF OF REPUTATION
OR CHARACTER.  FN5  IT WOULD NOT BE POSSIBLE TO APPRAISE THE USEFULNESS
AND PROPRIETY OF THIS CROSS-EXAMINATION WITHOUT CONSIDERATION OF THE
UNIQUE PRACTICE CONCERNING CHARACTER TESTIMONY, OF WHICH SUCH CROSS
EXAMINATION IS A MINOR PART.  FN6 

COURTS THAT FOLLOW THE COMMON-LAW TRADITION ALMOST UNANIMOUSLY HAVE
COME TO DISALLOW RESORT BY THE PROSECUTION TO ANY KIND OF EVIDENCE OF A
DEFENDANT'S EVIL CHARACTER TO ESTABLISH A PROBABILITY OF HIS GUILT. 
FN7  NOT THAT THE LAW INVESTS THE DEFENDANT WITH A PRESUMPTION OF GOOD
CHARACTER, GREER V. UNITED STATES, 245 U.S. 559, BUT IT SIMPLY CLOSES
THE WHOLE MATTER OF CHARACTER, DISPOSITION AND REPUTATION ON THE
PROSECUTION'S CASE-IN-CHIEF.  THE STATE MAY NOT SHOW DEFENDANT'S PRIOR
TROUBLE WITH THE LAW, SPECIFIC CRIMINAL ACTS, OR ILL NAME AMONG HIS
NEIGHBORS, EVEN THOUGH SUCH FACTS MIGHT LOGICALLY BE PERSUASIVE THAT HE
IS BY PROPENSITY A PROBABLE PERPETRATOR OF THE CRIME.  FN8  THE INQUIRY
IS NOT REJECTED BECAUSE CHARACTER IS IRRELEVANT; FN9  ON THE CONTRARY,
IT IS SAID TO WEIGH TOO MUCH WITH THE JURY AND TO SO OVERPERSUADE THEM
AS TO PREJUDGE ONE WITH A BAD GENERAL RECORD AND DENY HIM A FAIR
OPPORTUNITY TO DEFEND AGAINST A PARTICULAR CHARGE.  THE OVERRIDING
POLICY OF EXCLUDING SUCH EVIDENCE, DESPITE ITS ADMITTED PROBATIVE
VALUE, IS THE PRACTICAL EXPERIENCE THAT ITS DISALLOWANCE TENDS TO
PREVENT CONFUSION OF ISSUES, UNFAIR SURPRISE AND UNDUE PREJUDICE. 
FN10 

BUT THIS LINE OF INQUIRY FIRMLY DENIED TO THE STATE IS OPENED TO THE
DEFENDANT BECAUSE CHARACTER IS RELEVANT IN RESOLVING PROBABILITIES OF
GUILT.  FN11  HE MAY INTRODUCE AFFIRMATIVE TESTIMONY THAT THE GENERAL
ESTIMATE OF HIS CHARACTER IS SO FAVORABLE THAT THE JURY MAY INFER THAT
HE WOULD NOT BE LIKELY TO COMMIT THE OFFENSE CHARGED.  THIS PRIVILEGE
IS SOMETIMES VALUABLE TO A DEFENDANT FOR THIS COURT HAS HELD THAT SUCH
TESTIMONY ALONE, IN SOME CIRCUMSTANCES, MAY BE ENOUGH TO RAISE A
REASONABLE DOUBT OF GUILT AND THAT IN THE FEDERAL COURTS A JURY IN A
PROPER CASE SHOULD BE SO INSTRUCTED.  EDGINGTON V. UNITED STATES, 164
U.S. 361. 

WHEN THE DEFENDANT ELECTS TO INITIATE A CHARACTER INQUIRY, ANOTHER
ANOMALOUS RULE COMES INTO PLAY.  NOT ONLY IS HE PERMITTED TO CALL
WITNESSES TO TESTIFY FROM HEARSAY, BUT INDEED SUCH A WITNESS IS NOT
ALLOWED TO BASE HIS TESTIMONY ON ANYTHING BUT HEARSAY.  FN12  WHAT
COMMONLY IS CALLED "CHARACTER EVIDENCE" IS ONLY SUCH WHEN "CHARACTER"
IS EMPLOYED AS A SYNONYM FOR "REPUTATION."  THE WITNESS MAY NOT TESTIFY
ABOUT DEFENDANT'S SPECIFIC ACTS OR COURSES OF CONDUCT OR HIS POSSESSION
OF A PARTICULAR DISPOSITION OR OF BENIGN MENTAL AND MORAL TRAITS; NOR
CAN HE TESTIFY THAT HIS OWN ACQUAINTANCE, OBSERVATION, AND KNOWLEDGE OF
DEFENDANT LEADS TO HIS OWN INDEPENDENT OPINION THAT DEFENDANT POSSESSES
A GOOD GENERAL OR SPECIFIC CHARACTER, INCONSISTENT WITH COMMISSION OF
ACTS CHARGED.  THE WITNESS IS, HOWEVER, ALLOWED TO SUMMARIZE WHAT HE
HAS HEARD IN THE COMMUNITY, ALTHOUGH MUCH OF IT MAY HAVE BEEN SAID BY
PERSONS LESS QUALIFIED TO JUDGE THAN HIMSELF.  THE EVIDENCE WHICH THE
LAW PERMITS IS NOT AS TO THE PERSONALITY OF DEFENDANT BUT ONLY AS TO
THE SHADOW HIS DAILY LIFE HAS CAST IN HIS NEIGHBORHOOD.  THIS HAS BEEN
WELL DESCRIBED IN A DIFFERENT CONNECTION AS "THE SLOW GROWTH OF MONTHS
AND YEARS, THE RESULTANT PICTURE OF FORGOTTEN INCIDENTS, PASSING
EVENTS, HABITUAL AND DAILY CONDUCT, PRESUMABLY HONEST BECAUSE
DISINTERESTED, AND SAFER TO BE TRUSTED BECAUSE PRONE TO SUSPECT  ...
IT IS FOR THAT REASON THAT SUCH GENERAL REPUTE IS PERMITTED TO BE
PROVEN.  IT SUMS UP A MULTITUDE OF TRIVIAL DETAILS.  IT COMPACTS INTO
THE BRIEF PHRASE OF A VERDICT THE TEACHING OF MANY INCIDENTS AND THE
CONDUCT OF YEARS.  IT IS THE AVERAGE INTELLIGENCE DRAWING ITS
CONCLUSION."  FINCH, J., IN BADGER V. BADGER, 88 N.Y. 546, 552. 

WHILE COURTS HAVE RECOGNIZED LOGICAL GROUNDS FOR CRITICISM OF THIS
TYPE OF OPINION-BASED-ON-HEARSAY TESTIMONY, IT IS SAID TO BE JUSTIFIED
BY "OVERWHELMING CONSIDERATIONS OF PRACTICAL CONVENIENCE" IN AVOIDING
INNUMERABLE COLLATERAL ISSUES WHICH, IF IT WERE ATTEMPTED TO PROVE
CHARACTER BY DIRECT TESTIMONY, WOULD COMPLICATE AND CONFUSE THE TRIAL,
DISTRACT THE MINDS OF JURYMEN AND BEFOG THE CHIEF ISSUES IN THE
LITIGATION.  PEOPLE V. VAN GAASBECK, 189 N.Y. 408, 419, 82 N.E. 718,
721. 

ANOTHER PARADOX IN THIS BRANCH OF THE LAW OF EVIDENCE IS THAT THE
DELICATE AND RESPONSIBLE TASK OF COMPACTING REPUTATION HEARSAY INTO THE
"BRIEF PHRASE OF A VERDICT" IS ONE OF THE FEW INSTANCES IN WHICH
CONCLUSIONS ARE ACCEPTED FROM A WITNESS ON A SUBJECT IN WHICH HE IS NOT
AN EXPERT.  HOWEVER, THE WITNESS MUST QUALIFY TO GIVE AN OPINION BY
SHOWING SUCH ACQUAINTANCE WITH THE DEFENDANT, THE COMMUNITY IN WHICH HE
HAS LIVED AND THE CIRCLES IN WHICH HE HAS MOVED, AS TO SPEAK WITH
AUTHORITY OF THE TERMS IN WHICH GENERALLY HE IS REGARDED.  TO REQUIRE
AFFIRMATIVE KNOWLEDGE OF THE REPUTATION MAY SEEM INCONSISTENT WITH THE
LATITUDE GIVEN TO THE WITNESS TO TESTIFY WHEN ALL HE CAN SAY OF THE
REPUTATION IS THAT HE HAS "HEARD NOTHING AGAINST DEFENDANT."  THIS IS
PERMITTED UPON ASSUMPTION THAT, IF NO ILL IS REPORTED OF ONE, HIS
REPUTATION MUST BE GOOD.  FN13  BUT THIS ANSWER IS ACCEPTED ONLY FROM A
WITNESS WHOSE KNOWLEDGE OF DEFENDANT'S HABITAT AND SURROUNDINGS IS
INTIMATE ENOUGH SO THAT HIS FAILURE TO HEAR OF ANY RELEVANT ILL REPUTE
IS AN ASSURANCE THAT NO UGLY RUMORS WERE ABOUT.  FN14 

THUS THE LAW EXTENDS HELPFUL BUT ILLOGICAL OPTIONS TO A DEFENDANT. 
EXPERIENCE TAUGHT A NECESSITY THAT THEY BE COUNTERWEIGHTED WITH EQUALLY
ILLOGICAL CONDITIONS TO KEEP THE ADVANTAGE FROM BECOMING AN UNFAIR AND
UNREASONABLE ONE.  THE PRICE A DEFENDANT MUST PAY FOR ATTEMPTING TO
PROVE HIS GOOD NAME IS TO THROW OPEN THE ENTIRE SUBJECT WHICH THE LAW
HAS KEPT CLOSED FOR HIS BENEFIT AND TO MAKE HIMSELF VULNERABLE WHERE
THE LAW OTHERWISE SHIELDS HIM.  THE PROSECUTION MAY PURSUE THE INQUIRY
WITH CONTRADICTORY WITNESSES  FN15  TO SHOW THAT DAMAGING RUMORS,
WHETHER OR NOT WELL-GROUNDED, WERE AFLOAT - FOR IT IS NOT THE MAN THAT
HE IS, BUT THE NAME THAT HE HAS WHICH IS PUT IN ISSUE.  ANOTHER HAZARD
IS THAT HIS OWN WITNESS IS SUBJECT TO CROSS-EXAMINATION AS TO THE
CONTENTS AND EXTENT OF THE HEARSAY ON WHICH HE BASES HIS CONCLUSIONS,
AND HE MAY BE REQUIRED TO DISCLOSE RUMORS AND REPORTS THAT ARE CURRENT
EVEN IF THEY DO NOT AFFECT HIS OWN CONCLUSION.  FN16 IT MAY TEST THE
SUFFICIENCY OF HIS KNOWLEDGE BY ASKING WHAT STORIES WERE CIRCULATING
CONCERNING EVENTS, SUCH AS ONE'S ARREST, ABOUT WHICH PEOPLE NORMALLY
COMMENT AND SPECULATE.  THUS, WHILE THE LAW GIVES DEFENDANT THE OPTION
TO SHOW AS A FACT THAT HIS REPUTATION REFLECTS A LIFE AND HABIT
INCOMPATIBLE WITH COMMISSION OF THE OFFENSE CHARGED, IT SUBJECTS HIS
PROOF TO TESTS OF CREDIBILITY DESIGNED TO PREVENT HIM FROM PROFITING BY
A MERE PARADE OF PARTISANS. 

TO THUS DIGRESS FROM EVIDENCE AS TO THE OFFENSE TO HEAR A CONTEST AS
TO THE STANDING OF THE ACCUSED, AT ITS BEST OPENS A TRICKY LINE OF
INQUIRY AS TO A SHAPELESS AND ELUSIVE SUBJECT MATTER.  AT ITS WORST IT
OPENS A VERITABLE PANDORA'S BOX OF IRRESPONSIBLE GOSSIP, INNUENDO AND
SMEAR.  IN THE FRONTIER PHASE OF OUR LAW'S DEVELOPMENT, CALLING FRIENDS
TO VOUCH FOR DEFENDANT'S GOOD CHARACTER, AND ITS COUNTERPART - CALLING
THE RIVALS AND ENEMIES OF A WITNESS TO IMPEACH HIM BY TESTIFYING THAT
HIS REPUTATION FOR VERACITY WAS SO BAD THAT HE WAS UNWORTHY OF BELIEF
ON HIS OATH - WERE FAVORITE AND FREQUENT WAYS OF CONVERTING AN
INDIVIDUAL LITIGATION INTO A COMMUNITY CONTEST AND A TRIAL INTO A
SPECTACLE.  GROWTH OF URBAN CONDITIONS, WHERE ONE MAY NEVER KNOW OR
HEAR THE NAME OF HIS NEXTDOOR NEIGHBOR, HAVE TENDED TO LIMIT THE USE OF
THESE TECHNIQUES AND TO DEPRIVE THEM OF WEIGHT WITH JURIES.  THE
POPULARITY OF BOTH PROCEDURES HAS SUBSIDED, BUT COURTS OF LAST RESORT
HAVE SOUGHT TO OVERCOME DANGER THAT THE TRUE ISSUES WILL BE OBSCURED
AND CONFUSED BY INVESTING THE TRIAL COURT WITH DISCRETION TO LIMIT THE
NUMBER OF SUCH WITNESSES AND TO CONTROL CROSS-EXAMINATION.  BOTH
PROPRIETY AND ABUSE OF HEARSAY REPUTATION TESTIMONY, ON BOTH SIDES,
DEPEND ON NUMEROUS AND SUBTLE CONSIDERATIONS DIFFICULT TO DETECT OR
APPRAISE FROM A COLD RECORD, AND THEREFORE RARELY AND ONLY ON CLEAR
SHOWING OF PREJUDICIAL ABUSE OF DISCRETION WILL COURTS OF APPEALS
DISTURB RULINGS OF TRIAL COURTS ON THIS SUBJECT.  FN17 

WIDE DISCRETION IS ACCOMPANIED BY HEAVY RESPONSIBILITY ON TRIAL
COURTS TO PROTECT THE PRACTICE FROM ANY MISUSE.  THE TRIAL JUDGE WAS
SCRUPULOUS TO SO GUARD IT IN THE CASE BEFORE US.  HE TOOK PAINS TO
ASCERTAIN, OUT OF PRESENCE OF THE JURY, THAT THE TARGET OF THE QUESTION
WAS AN ACTUAL EVENT, WHICH WOULD PROBABLY RESULT IN SOME COMMENT AMONG
ACQUAINTANCES IF NOT INJURY TO DEFENDANT'S REPUTATION.  HE SATISFIED
HIMSELF THAT COUNSEL WAS NOT MERELY TAKING A RANDOM SHOT AT A
REPUTATION IMPRUDENTLY EXPOSED OR ASKING A GROUNDLESS QUESTION TO WAFT
AN UNWARRANTED INNUENDO INTO THE JURY BOX.  FN18 

THE QUESTION PERMITTED BY THE TRIAL COURT, HOWEVER, INVOLVES SEVERAL
FEATURES THAT MAY BE WORTHY OF COMMENT.  ITS FORM INVITED HEARSAY; IT
ASKED ABOUT AN ARREST, NOT A CONVICTION, AND FOR AN OFFENSE NOT CLOSELY
SIMILAR TO THE ONE ON TRIAL; AND IT CONCERNED AN OCCURRENCE MANY YEARS
PAST.   SINCE THE WHOLE INQUIRY, AS WE HAVE POINTED OUT, IS CALCULATED
TO ASCERTAIN THE GENERAL TALK OF PEOPLE ABOUT DEFENDANT, RATHER THAN
THE WITNESS' OWN KNOWLEDGE OF HIM, THE FORM OF INQUIRY, "HAVE YOU
HEARD?"  HAS GENERAL APPROVAL, AND "DO YOU KNOW?"  IS NOT ALLOWED. 
FN19 

A CHARACTER WITNESS MAY BE CROSS-EXAMINED AS TO AN ARREST WHETHER OR
NOT IT CULMINATED IN A CONVICTION, ACCORDING TO THE OVERWHELMING WEIGHT
OF AUTHORITY.  FN20  THIS RULE IS SOMETIMES CONFUSED WITH THAT WHICH
PROHIBITS CROSS-EXAMINATION TO CREDIBILITY BY ASKING A WITNESS WHETHER
HE HIMSELF HAS BEEN ARRESTED. 

ARREST WITHOUT MORE DOES NOT, IN LAW ANY MORE THAN IN REASON, IMPEACH
THE INTEGRITY OR IMPAIR THE CREDIBILITY OF A WITNESS.  IT HAPPENS TO
THE INNOCENT AS WELL AS THE GUILTY.  ONLY A CONVICTION, THEREFORE, MAY
BE INQUIRED ABOUT TO UNDERMINE THE TRUSTWORTHINESS OF A WITNESS. 

ARREST WITHOUT MORE MAY NEVERTHELESS IMPAIR OR CLOUD ONE'S
REPUTATION.  FALSE ARREST MAY DO THAT.  EVEN TO BE ACQUITTED MAY DAMAGE
ONE'S GOOD NAME IF THE COMMUNITY RECEIVES THE VERDICT WITH A WINK AND
CHOOSES TO REMEMBER DEFENDANT AS ONE WHO OUGHT TO HAVE BEEN CONVICTED. 
A CONVICTION, ON THE OTHER HAND, MAY BE ACCEPTED AS A MISFORTUNE OR AN
INJUSTICE, AND EVEN ENHANCE THE STANDING OF ONE WHO MENDS HIS WAYS AND
LIVES IT DOWN.  REPUTATION IS THE NET BALANCE OF SO MANY DEBITS AND
CREDITS THAT THE LAW DOES NOT ATTACH THE FINALITY TO A CONVICTION, WHEN
THE ISSUE IS REPUTATION, THAT IS GIVEN TO IT WHEN THE ISSUE IS THE
CREDIBILITY OF THE CONVICT. 

THE INQUIRY AS TO AN ARREST IS PERMISSIBLE ALSO BECAUSE THE
PROSECUTION HAS A RIGHT TO TEST THE QUALIFICATIONS OF THE WITNESS TO
BESPEAK THE COMMUNITY OPINION.  IF ONE NEVER HEARD THE SPECULATIONS AND
RUMORS IN WHICH EVEN ONE'S FRIENDS INDULGE UPON HIS ARREST, THE JURY
MAY DOUBT WHETHER HE IS CAPABLE OF GIVING ANY VERY RELIABLE CONCLUSIONS
AS TO HIS REPUTATION. 

IN THIS CASE THE CRIME INQUIRED ABOUT WAS RECEIVING STOLEN GOODS; THE
TRIAL WAS FOR BRIBERY.  THE COURT OF APPEALS THOUGHT THIS DISSIMILARITY
OF OFFENSES TOO GREAT TO SUSTAIN THE INQUIRY IN LOGIC, THOUGH CONCEDING
THAT IT IS AUTHORIZED BY PREPONDERANCE OF AUTHORITY.  IT ASKS US TO
SUBSTITUTE THE ILLINOIS RULE WHICH ALLOWS INQUIRY ABOUT ARREST, BUT
ONLY FOR VERY CLOSELY SIMILAR IF NOT IDENTICAL CHARGES, IN PLACE OF THE
RULE MORE GENERALLY ADHERED TO IN THIS COUNTRY AND IN ENGLAND.  FN21
WE THINK THE FACTS OF THIS CASE SHOW THE PROPOSAL TO BE INEXPEDIENT. 

THE GOOD CHARACTER WHICH THE DEFENDANT HAD SOUGHT TO ESTABLISH WAS
BROADER THAN THE CRIME CHARGED AND INCLUDED THE TRAITS OF "HONESTY AND
TRUTHFULNESS" AND "BEING A LAW-ABIDING CITIZEN."  POSSESSION OF THESE
CHARACTERISTICS WOULD SEEM AS INCOMPATIBLE WITH OFFERING A BRIBE TO A
REVENUE AGENT AS WITH RECEIVING STOLEN GOODS.  THE CRIMES MAY BE
UNLIKE, BUT BOTH ALIKE PROCEED FROM THE SAME DEFECTS OF CHARACTER WHICH
THE WITNESSES SAID THIS DEFENDANT WAS REPUTED NOT TO EXHIBIT.  IT IS
NOT ONLY BY COMPARISON WITH THE CRIME ON TRIAL BUT BY COMPARISON WITH
THE REPUTATION ASSERTED THAT A COURT MAY JUDGE WHETHER THE PRIOR ARREST
SHOULD BE MADE SUBJECT OF INQUIRY.  BY THIS TEST THE INQUIRY WAS
PERMISSIBLE.  IT WAS PROPER CROSS-EXAMINATION BECAUSE REPORTS OF HIS
ARREST FOR RECEIVING STOLEN GOODS, IF ADMITTED, WOULD TEND TO WEAKEN
THE ASSERTION THAT HE WAS KNOWN AS AN HONEST AND LAW-ABIDING CITIZEN. 
THE CROSS-EXAMINATION MAY TAKE IN AS MUCH GROUND AS THE TESTIMONY IT IS
DESIGNED TO VERIFY.  TO HOLD OTHERWISE WOULD GIVE DEFENDANT THE BENEFIT
OF TESTIMONY THAT HE WAS HONEST AND LAW-ABIDING IN REPUTATION WHEN SUCH
MIGHT NOT BE THE FACT; THE REFUTATION WAS FOUNDED ON CONVICTIONS
EQUALLY PERSUASIVE THOUGH NOT FOR CRIMES EXACTLY REPEATED IN THE
PRESENT CHARGE. 

THE INQUIRY HERE CONCERNED AN ARREST TWENTY-SEVEN YEARS BEFORE THE
TRIAL.  EVENTS A GENERATION OLD ARE LIKELY TO BE LIVED DOWN AND DROPPED
FROM THE PRESENT THOUGHT AND TALK OF THE COMMUNITY AND TO BE ABSENT
FROM THE KNOWLEDGE OF YOUNGER OR MORE RECENT ACQUAINTANCES.  THE COURT
IN ITS DISCRETION MAY WELL EXCLUDE INQUIRY ABOUT RUMORS OF AN EVENT SO
REMOTE, UNLESS RECENT MISCONDUCT REVIVED THEM.  BUT TWO OF THESE
WITNESSES DATED THEIR ACQUAINTANCE WITH DEFENDANT AS COMMENCING THIRTY
YEARS BEFORE THE TRIAL.  DEFENDANT, ON DIRECT EXAMINATION, VOLUNTARILY
CALLED ATTENTION TO HIS CONVICTION TWENTY YEARS BEFORE.  WHILE THE JURY
MIGHT CONCLUDE THAT A MATTER SO OLD AND INDECISIVE AS A 1920 ARREST
WOULD SHED LITTLE LIGHT ON THE PRESENT REPUTATION AND HENCE
PROPENSITIES OF THE DEFENDANT, WE CANNOT SAY THAT, IN THE CONTEXT OF
THIS EVIDENCE AND IN THE ABSENCE OF OBJECTION ON THIS SPECIFIC GROUND,
ITS ADMISSION WAS AN ABUSE OF DISCRETION. 

WE DO NOT OVERLOOK OR MINIMIZE THE CONSIDERATION THAT "THE JURY
ALMOST SURELY CANNOT COMPREHEND THE JUDGE'S LIMITING INSTRUCTION,"
WHICH DISTURBED THE COURT OF APPEALS.  THE REFINEMENTS OF THE
EVIDENTIARY RULES ON THIS SUBJECT ARE SUCH THAT EVEN LAWYERS AND
JUDGES, AFTER STUDY AND REFLECTION, OFTEN ARE CONFUSED, AND SURELY
JURORS IN THE HURRIED AND UNFAMILIAR MOVEMENT OF A TRIAL MUST FIND THEM
ALMOST UNINTELLIGIBLE.  HOWEVER, LIMITING INSTRUCTIONS ON THIS SUBJECT
ARE NO MORE DIFFICULT TO COMPREHEND OR APPLY THAN THOSE UPON VARIOUS
OTHER SUBJECTS; FOR EXAMPLE, INSTRUCTIONS THAT ADMISSIONS OF A CO
DEFENDANT ARE TO BE LIMITED TO THE QUESTION OF HIS GUILT AND ARE NOT TO
BE CONSIDERED AS EVIDENCE AGAINST OTHER DEFENDANTS, AND INSTRUCTIONS AS
TO OTHER PROBLEMS IN THE TRIAL OF CONSPIRACY CHARGES.  A DEFENDANT IN
SUCH A CASE IS POWERLESS TO PREVENT HIS CAUSE FROM BEING IRRETRIEVABLY
OBSCURED AND CONFUSED; BUT, IN CASES SUCH AS THE ONE BEFORE US, THE LAW
FORECLOSED THIS WHOLE CONFOUNDING LINE OF INQUIRY, UNLESS DEFENDANT
THOUGHT THE NET ADVANTAGE FROM OPENING IT UP WOULD BE WITH HIM.  GIVEN
THIS OPTION, WE THINK DEFENDANTS IN GENERAL AND THIS DEFENDANT IN
PARTICULAR HAVE NO VALID COMPLAINT AT THE LATITUDE WHICH EXISTING LAW
ALLOWS TO THE PROSECUTION TO MEET BY CROSS-EXAMINATION AN ISSUE
VOLUNTARILY TENDERED BY THE DEFENSE.  SEE GREER V. UNITED STATES, 245
U.S. 559. 

WE END, AS WE BEGAN, WITH THE OBSERVATION THAT THE LAW REGULATING THE
OFFERING AND TESTING OF CHARACTER TESTIMONY MAY MERIT MANY CRITICISMS. 
ENGLAND AND SOME STATES HAVE OVERHAULED THE PRACTICE BY STATUTE.  FN22
BUT THE TASK OF MODERNIZING THE LONG-STANDING RULES ON THE SUBJECT IS
ONE OF MAGNITUDE AND DIFFICULTY WHICH EVEN THOSE DEDICATED TO LAW
REFORM DO NOT LIGHTLY UNDERTAKE.  FN23 

THE LAW OF EVIDENCE RELATING TO PROOF OF REPUTATION IN CRIMINAL CASES
HAS DEVELOPED ALMOST ENTIRELY AT THE HANDS OF STATE COURTS OF LAST
RESORT, WHICH HAVE SUCH QUESTIONS FREQUENTLY BEFORE THEM.  THIS COURT,
ON THE OTHER HAND, HAS CONTRIBUTED LITTLE TO THIS OR TO ANY PHASE OF
THE LAW OF EVIDENCE, FOR THE REASON, AMONG OTHERS, THAT IT HAS HAD
EXTREMELY RARE OCCASION TO DECIDE SUCH ISSUES, AS THE PAUCITY OF
CITATIONS IN THIS OPINION TO OUR OWN WRITINGS ATTESTS.  IT IS OBVIOUS
THAT A COURT WHICH CAN MAKE ONLY INFREQUENT SALLIES INTO THE FIELD
CANNOT RECAST THE BODY OF CASE LAW ON THIS SUBJECT IN MANY, MANY YEARS,
EVEN IF IT WERE CLEAR WHAT THE RULES SHOULD BE. 

WE CONCUR IN THE GENERAL OPINION OF COURTS, TEXTWRITERS AND THE
PROFESSION THAT MUCH OF THIS LAW IS ARCHAIC, PARADOXICAL AND FULL OF
COMPROMISES AND COMPENSATIONS BY WHICH AN IRRATIONAL ADVANTAGE TO ONE
SIDE IS OFFSET BY A POORLY REASONED COUNTERPRIVILEGE TO THE OTHER.  BUT
SOMEHOW IT HAS PROVED A WORKABLE EVEN IF CLUMSY SYSTEM WHEN MODERATED
BY DISCRETIONARY CONTROLS IN THE HANDS OF A WISE AND STRONG TRIAL
COURT.  TO PULL ONE MISSHAPEN STONE OUT OF THE GROTESQUE STRUCTURE IS
MORE LIKELY SIMPLY TO UPSET ITS PRESENT BALANCE BETWEEN ADVERSE
INTERESTS THAN TO ESTABLISH A RATIONAL EDIFICE. 

THE PRESENT SUGGESTION IS THAT WE ADOPT FOR ALL FEDERAL COURTS A NEW
RULE AS TO CROSS-EXAMINATION ABOUT PRIOR ARREST, ADHERED TO BY THE
COURTS OF ONLY ONE STATE AND REJECTED ELSEWHERE.  FN24  THE CONFUSION
AND ERROR IT WOULD ENGENDER WOULD SEEM TOO HEAVY A PRICE TO PAY FOR AN
ALMOST IMPERCEPTIBLE LOGICAL IMPROVEMENT, IF ANY, IN A SYSTEM WHICH IS
JUSTIFIED, IF AT ALL, BY ACCUMULATED JUDICIAL EXPERIENCE RATHER THAN
ABSTRACT LOGIC.  FN25 

THE JUDGMENT IS AFFIRMED. 

FN1  THE FIRST COUNT CHARGED PETITIONER WITH BRIBING IN VIOLATION OF
18 U.S.C. SEC. 91(NOW 18 U.S.C. SEC. 201) AND THE AFFIRMANCE OF HIS
CONVICTION ON THIS COUNT BY THE COURT OF APPEALS, 165 F.2D 732, IS THE
JUDGMENT HERE UNDER REVIEW.  THE SECOND COUNT CHARGED "OFFERING" THE
BRIBE AS A VIOLATION OF THE SAME STATUTE BUT HIS CONVICTION ON THIS
COUNT WAS REVERSED BY THE COURT OF APPEALS AND IS NOT HERE INVOLVED. 

FN2  DETAILS APPEAR IN THE COURT OF APPEALS OPINION, 165 F.2D 732. 

FN3  IN RULING ON THE OBJECTION WHEN THE QUESTION WAS FIRST ASKED,
THE COURT SAID: 

"  ...  I INSTRUCT THE JURY THAT WHAT IS HAPPENING NOW IS THIS:  THE
DEFENDANT HAS CALLED CHARACTER WITNESSES, AND THE BASIS FOR THE
EVIDENCE GIVEN BY THOSE CHARACTER WITNESSES IS THE REPUTATION OF THE
DEFENDANT IN THE COMMUNITY, AND SINCE THE DEFENDANT TENDERS THE ISSUE
OF HIS REPUTATION THE PROSECUTION MAY ASK THE WITNESS IF SHE HAS HEARD
OF VARIOUS INCIDENTS IN HIS CAREER.  I SAY TO YOU THAT REGARDLESS OF
HER ANSWER YOU ARE NOT TO ASSUME THAT THE INCIDENTS ASKED ABOUT
ACTUALLY TOOK PLACE.  ALL THAT IS HAPPENING IS THAT THIS WITNESS'
STANDARD OF OPINION OF THE REPUTATION OF THE DEFENDANT IS BEING
TESTED.  IS THAT CLEAR?" 

IN OVERRULING THE SECOND OBJECTION TO THE QUESTION THE COURT SAID: 

"AGAIN I SAY TO THE JURY THERE IS NO PROOF THAT MR. MICHELSON WAS
ARRESTED FOR RECEIVING STOLEN GOODS IN 1920, THERE ISN'T ANY SUCH
PROOF.  ALL THIS WITNESS HAS BEEN ASKED IS WHETHER HE HAD HEARD OF
THAT.  THERE IS NOTHING BEFORE YOU ON THAT ISSUE.  NOW WOULD YOU BASE
YOUR DECISION ON THE CASE FAIRLY IN SPITE OF THE FACT THAT THAT
QUESTION HAS BEEN ASKED?  YOU WOULD?  ALL RIGHT." 

THE CHARGE INCLUDED THE FOLLOWING: 

"IN CONNECTION WITH THE CHARACTER EVIDENCE IN THE CASE I PERMITTED A
QUESTION WHETHER OR NOT THE WITNESS KNEW THAT IN 1920 THIS DEFENDANT
HAD BEEN ARRESTED FOR RECEIVING STOLEN GOODS.  I TRIED TO GIVE YOU THE
INSTRUCTION THEN THAT THAT QUESTION WAS PERMITTED ONLY TO TEST THE
STANDARDS OF CHARACTER EVIDENCE THAT THESE CHARACTER WITNESSES SEEMED
TO HAVE.  THERE ISN'T ANY PROOF IN THE CASE THAT COULD BE PRODUCED
BEFORE YOU LEGALLY WITHIN THE RULES OF EVIDENCE THAT THIS DEFENDANT WAS
ARRESTED IN 1920 FOR RECEIVING STOLEN GOODS, AND THAT FACT YOU ARE NOT
TO HOLD AGAINST HIM; NOR ARE YOU TO ASSUME WHAT THE CONSEQUENCES OF
THAT ARREST WERE.  YOU JUST DRIVE IT FROM YOUR MIND SO FAR AS HE IS
CONCERNED, AND TAKE IT INTO CONSIDERATION ONLY IN WEIGHING THE EVIDENCE
OF THE CHARACTER WITNESSES." 

FN4  FOOTNOTE 8 TO THAT COURT'S OPINION READS AS FOLLOWS: 

"WIGMORE, EVIDENCE (3D ED. 1940) SEC. 988, AFTER NOTING THAT 'SUCH
INQUIRIES ARE ALMOST UNIVERSALLY ADMITTED,' NOT AS 'IMPEACHMENT BY
EXTRINSIC TESTIMONY OF PARTICULAR ACTS OF MISCONDUCT,' BUT AS MEANS OF
TESTING THE CHARACTER 'WITNESS' GROUNDS OF KNOWLEDGE,' CONTINUES WITH
THESE COMMENTS:  'BUT THE SERIOUS OBJECTION TO THEM IS THAT PRACTICALLY
THE ABOVE DISTINCTION - BETWEEN RUMORS OF SUCH CONDUCT, AS AFFECTING
REPUTATION, AND THE FACT OF IT AS VIOLATING THE RULE AGAINST PARTICULAR
FACTS - CANNOT BE MAINTAINED IN THE MIND OF THE JURY.  THE RUMOR OF THE
MISCONDUCT, WHEN ADMITTED, GOES FAR, IN SPITE OF ALL THEORY AND OF THE
JUDGE'S CHARGE, TOWARDS FIXING THE MISCONDUCT AS A FACT UPON THE OTHER
PERSON, AND THUS DOES THREE IMPROPER THINGS,  - (1) IT VIOLATES THE
FUNDAMENTAL RULE OF FAIRNESS THAT PROHIBITS THE USE OF SUCH FACTS, (2)
IT GETS AT THEM BY HEARSAY ONLY, AND NOT BY TRUSTWORTHY TESTIMONY, AND
(3) IT LEAVES THE OTHER PERSON NO MEANS OF DEFENDING HIMSELF BY DENIAL
OR EXPLANATION, SUCH AS HE WOULD OTHERWISE HAVE HAD IF THE RULE HAD
ALLOWED THAT CONDUCT TO BE MADE THE SUBJECT OF AN ISSUE.  MOREOVER,
THESE ARE NOT OCCURRENCES OF POSSIBILITY, BUT OF DAILY PRACTICE.  THIS
METHOD OF INQUIRY OR CROSS-EXAMINATION IS FREQUENTLY RESORTED TO BY
COUNSEL FOR THE VERY PURPOSE OF INJURING BY INDIRECTION A CHARACTER
WHICH THEY ARE FORBIDDEN DIRECTLY TO ATTACK IN THAT WAY; THEY RELY UPON
THE MERE PUTTING OF THE QUESTION (NOT CARING THAT IT IS ANSWERED
NEGATIVELY) TO CONVEY THEIR COVERT INSINUATION.  THE VALUE OF THE
INQUIRY FOR TESTING PURPOSES IS OFTEN SO SMALL AND THE OPPORTUNITIES OF
ITS ABUSE BY UNDERHAND WAYS ARE SO GREAT THAT THE PRACTICE MAY AMOUNT
TO LITTLE MORE THAN A MERE SUBTERFUGE, AND SHOULD BE STRICTLY
SUPERVISED BY FORBIDDING IT TO COUNSEL WHO DO NOT USE IT IN GOOD
FAITH.' 

"BECAUSE, AS WIGMORE SAYS, THE JURY ALMOST SURELY CANNOT COMPREHEND
THE JUDGE'S LIMITING INSTRUCTION, THE WRITER OF THIS OPINION WISHES
THAT THE UNITED STATES SUPREME COURT WOULD TELL US TO FOLLOW WHAT
APPEARS TO BE THE ILLINOIS RULE, I.E., THAT SUCH QUESTIONS ARE IMPROPER
UNLESS THEY RELATE TO OFFENSES SIMILAR TO THOSE FOR WHICH THE DEFENDANT
IS ON TRIAL.  SEE AIKEN V. PEOPLE, 183 ILL. 215, 55 N.E. 695; CF.
PEOPLE V. HANNON, 381 ILL. 206, 44 N.E.(2D) 923." 

FN5  A JUDGE OF LONG TRIAL AND APPELLATE EXPERIENCE HAS UTTERED A
WARNING WHICH, IN THE OPINION OF THE WRITER, WE MIGHT WELL HAVE HEEDED
IN DETERMINING WHETHER TO GRANT CERTIORARI HERE: 

"  ...  EVIDENCE OF GOOD CHARACTER IS TO BE USED LIKE ANY OTHER, ONCE
IT GETS BEFORE THE JURY, AND THE LESS THEY ARE TOLD ABOUT THE GROUNDS
FOR ITS ADMISSION, OR WHAT THEY SHALL DO WITH IT, THE MORE LIKELY THEY
ARE TO USE IT SENSIBLY.  THE SUBJECT SEEMS TO GATHER MIST WHICH
DISCUSSION SERVES ONLY TO THICKEN, AND WHICH WE CAN SCARCELY HOPE TO
DISSIPATE BY ANYTHING FURTHER WE CAN ADD."  L. HAND IN NASH V. UNITED
STATES, 54 F.2D 1006, 1007. 

IN OPENING ITS CYCLOPEDIC REVIEW OF AUTHORITIES FROM MANY
JURISDICTIONS, CORPUS JURIS SECUNDUM SUMMARIZES THAT THE RULES
REGULATING PROOF OF CHARACTER "HAVE BEEN CRITICIZED AS ILLOGICAL,
UNSCIENTIFIC, AND ANOMALOUS, EXPLAINABLE ONLY AS ARCHAIC SURVIVALS OF
COMPURGATION OR OF STATES OF LEGAL DEVELOPMENT WHEN THE JURY PERSONALLY
KNEW THE FACTS ON WHICH THEIR VERDICT WAS BASED."  32 C.J.S. EVIDENCE
SEC. 433.    FN6  SEE MAGUIRE, EVIDENCE:  COMMON SENSE AND COMMON LAW
(1947).  COMPARE PP. 203-209 AND PP. 74-76. 

FN7  GREER V. UNITED STATES, 245 U.S. 559; 1 WIGMORE, EVIDENCE (3D
ED., 1940) SEC. 57; 1 WHARTON, CRIMINAL EVIDENCE (11TH ED., 1935) SEC.
330.  THIS WAS NOT THE EARLIER RULE IN ENGLISH COMMON LAW AND IS NOT
NOW THE RULE IN SOME CIVIL LAW COUNTRIES.  1 WIGMORE, EVIDENCE (3D ED.,
SEC. 1940) SEC. 193. 

FN8  THIS WOULD BE SUBJECT TO SOME QUALIFICATION, AS WHEN A PRIOR
CRIME IS AN ELEMENT OF THE LATER OFFENSE; FOR EXAMPLE, AT A TRIAL FOR
BEING AN HABITUAL CRIMINAL.  THERE ARE ALSO WELL-ESTABLISHED EXCEPTIONS
WHERE EVIDENCE AS TO OTHER TRANSACTIONS OR A COURSE OF FRAUDULENT
CONDUCT IS ADMITTED TO ESTABLISH FRAUDULENT INTENT AS AN ELEMENT OF THE
CRIME CHARGED.  SEE, E.G., FALL V. UNITED STATES, 60 APP. D.C. 124, 49
F.2D 506, CERTIORARI DENIED, 283 U.S. 867; HATEM V. UNITED STATES, 42
F.2D 40, CERTIORARI DENIED, 282 U.S. 887; WILLIAMSON V. UNITED STATES,
207 U.S. 425; ALLIS V. UNITED STATES, 155 U.S. 117; WOOD V. UNITED
STATES, 16 PET. 342. 

FN9  AS LONG AGO AS 1865, CHIEF JUSTICE COCKBURN SAID, "THE TRUTH IS,
THIS PART OF OUR LAW IS AN ANOMALY.  ALTHOUGH, LOGICALLY SPEAKING, IT
IS QUITE CLEAR THAT AN ANTECEDENT BAD CHARACTER WOULD FORM QUITE AS
REASONABLE A GROUND FOR THE PRESUMPTION AND PROBABILITY OF GUILT AS
PREVIOUS GOOD CHARACTER LAYS THE FOUNDATION OF INNOCENCE, YET YOU
CANNOT, ON THE PART OF THE PROSECUTION, GO INTO EVIDENCE AS TO BAD
CHARACTER."  REG. V. ROWTON, 10 COX'S CRIMINAL CASES 25, 29-30.  AND
SEE 1 WIGMORE, EVIDENCE (3D ED., 1940) SEC. 55. 

FN10  1 WIGMORE, EVIDENCE (3D ED., 1940) SEC. 57. 

FN11  1 WIGMORE, EVIDENCE (3D ED., 1940) SEC. 56; UNDERHILL, CRIMINAL
EVIDENCE (4TH ED., 1935) SEC. 165; 1 WHARTON, CRIMINAL EVIDENCE (11TH
ED., 1935) SECS. 330, 336. 

FN12  WIGMORE, EVIDENCE (3D ED., 1940) SEC. 1609; UNDERHILL, CRIMINAL
EVIDENCE (4TH ED., 1935) SEC. 170; 1 WHARTON, CRIMINAL EVIDENCE (11TH
ED., 1935) SEC. 333. 

FN13  PEOPLE V. VAN GAASBECK, 189 N.Y. 408, 420, 82 N.E. 718, 722. 
THE LAW APPARENTLY IGNORES THE EXISTENCE OF SUCH HUMAN CIPHERS AS
KIPLING'S TOMLINSON, OF WHOM NO ILL IS REPORTED BUT NO GOOD CAN BE
RECALLED.  THEY WIN SEATS WITH THE RIGHTEOUS FOR CHARACTER EVIDENCE
PURPOSES, HOWEVER HARD THEIR LOT IN LITERATURE. 

FN14  ID.; 5 WIGMORE, EVIDENCE (3D ED., 1940) SEC. 1614; UNDERHILL,
CRIMINAL EVIDENCE (4TH ED., 1935) SEC. 171; 1 WHARTON, CRIMINAL
EVIDENCE (11TH ED., 1935) SEC. 334. 

FN15  1 WIGMORE, EVIDENCE (3D ED., 1940) SEC. 58; UNDERHILL, CRIMINAL
EVIDENCE (4TH ED., 1935) SEC. 167; 1 WHARTON, CRIMINAL EVIDENCE (11TH
ED., 1935) SEC. 330. 

FN16  A CLASSIC EXAMPLE IN THE BOOKS IS A CHARACTER WITNESS IN A
TRIAL FOR MURDER.  SHE TESTIFIED SHE GREW UP WITH DEFENDANT, KNEW HIS
REPUTATION FOR PEACE AND QUIET, AND THAT IT WAS GOOD.  ON CROSS
EXAMINATION SHE WAS ASKED IF SHE HAD HEARD THAT THE DEFENDANT HAD SHOT
ANYBODY AND, IF SO, HOW MANY.  SHE ANSWERED, "THREE OR FOUR," AND GAVE
THE NAMES OF TWO BUT COULD NOT RECALL THE NAMES OF THE OTHERS.  SHE
STILL INSISTED, HOWEVER, THAT HE WAS OF "GOOD CHARACTER."  THE JURY
SEEMS TO HAVE VALUED HER INFORMATION MORE HIGHLY THAN HER JUDGMENT, AND
ON APPEAL FROM CONVICTION THE CROSS-EXAMINATION WAS HELD PROPER. 
PEOPLE V. LAUDIERO, 192 N.Y. 304, 309, 85 N.E. 132.  SEE ALSO PEOPLE V.
ELLIOTT, 163 N.Y. 11, 57 N.E. 103. 

FN17  SEE, E.G., MANNIX V. UNITED STATES, 140 F.2D 250.  IT HAS BEEN
HELD THAT THE QUESTION MAY NOT BE HYPOTHETICAL NOR ASSUME UNPROVEN
FACTS AND ASK IF THEY WOULD AFFECT THE CONCLUSION, LITTLE V. UNITED
STATES, 93 F.2D 401; PITTMAN V. UNITED STATES, 42 F.2D 793; FILIPPELLI
V. UNITED STATES, 6 F.2D 121; AND THAT IT MAY NOT BE SO ASKED AS TO
DETAIL EVIDENCE OR CIRCUMSTANCES OF A CRIME OF WHICH DEFENDANT WAS
ACCUSED.  PEOPLE V. MARENDI, 213 N.Y. 600, 107 N.E. 1058.  IT HAS BEEN
HELD ERROR TO USE THE QUESTION TO GET BEFORE THE JURY A PARTICULAR
DEROGATORY NEWSPAPER ARTICLE.  SLOAN V. UNITED STATES, 31 F.2D 902. 
THE PROOF HAS BEEN CONFINED TO GENERAL REPUTATION AND THAT AMONG A
LIMITED GROUP SUCH AS FELLOW EMPLOYEES IN A PARTICULAR BUILDING HELD
INADMISSIBLE.  WILLIAMS V. UNITED STATES, 168 U.S. 382. 

FN18  THIS PROCEDURE WAS RECOMMENDED BY WIGMORE.  BUT ANALYSIS OF HIS
INNOVATION EMPHASIZES THE WAY IN WHICH LAW ON THIS SUBJECT HAS EVOLVED
FROM PRAGMATIC CONSIDERATIONS RATHER THAN FROM THEORETICAL
CONSISTENCY.  THE RELEVANT INFORMATION THAT IT IS PERMISSIBLE TO LAY
BEFORE THE JURY IS TALK OR CONVERSATION ABOUT THE DEFENDANT'S BEING
ARRESTED.  THAT IS ADMISSIBLE WHETHER OR NOT AN ACTUAL ARREST HAD TAKEN
PLACE; IT MIGHT EVEN BE MORE SIGNIFICANT OF REPUTE IF HIS NEIGHBORS
WERE READY TO ARREST HIM IN RUMOR WHEN THE AUTHORITIES WERE NOT IN
FACT.  BUT BEFORE THIS RELEVANT AND PROPER INQUIRY CAN BE MADE, COUNSEL
MUST DEMONSTRATE PRIVATELY TO THE COURT AN IRRELEVANT AND POSSIBLY
UNPROVABLE FACT - THE REALITY OF ARREST.  FROM THIS PERMISSIBLE INQUIRY
ABOUT REPORTS OF ARREST, THE JURY IS PRETTY CERTAIN TO INFER THAT
DEFENDANT HAD IN FACT BEEN ARRESTED AND TO DRAW ITS OWN CONCLUSIONS AS
TO CHARACTER FROM THAT FACT.  THE WIGMORE SUGGESTION THUS LIMITS
LEGALLY RELEVANT INQUIRIES TO THOSE BASED ON LEGALLY IRRELEVANT FACTS
IN ORDER THAT THE LEGALLY IRRELEVANT CONCLUSION WHICH THE JURY PROBABLY
WILL DRAW FROM THE RELEVANT QUESTIONS WILL NOT BE BASED ON UNSUPPORTED
OR UNTRUE INNUENDO.  IT ILLUSTRATES JUDGE HAND'S SUGGESTION THAT THE
SYSTEM MAY WORK BEST WHEN EXPLAINED LEAST.  YET, DESPITE ITS
THEORETICAL PARADOXES AND DEFICIENCIES, WE APPROVE THE PROCEDURE AS
CALCULATED IN PRACTICE TO HOLD THE INQUIRY WITHIN DECENT BOUNDS. 

FN19  SEE STEWART V. UNITED STATES, 70 APP. D.C. 101, 104 F.2D 234;
LITTLE V. UNITED STATES, 93 F.2D 401; FILIPPELLI V. UNITED STATES, 6
F.2D 121. 

FN20  SEE MANNIX V. UNITED STATES, 140 F.2D 250; JOSEY V. UNITED
STATES, 77 U.S. APP. D.C. 321, 135 F.2D 809; SPALITTO V. UNITED STATES,
39 F.2D 782, AND AUTHORITIES THERE CITED. 

FN21  THE SUPREME COURT OF ILLINOIS, IN CONSIDERING ITS OWN RULE
WHICH WE ARE URGED TO ADOPT, RECOGNIZED THAT "THE RULE ADHERED TO IN
THIS STATE IS NOT CONSISTENT WITH THE GREAT WEIGHT OF AUTHORITY IN THIS
COUNTRY AND IN ENGLAND."  PEOPLE V. HANNON, 381 ILL. 206, 209, 44
N.E.2D 923.  AUTHORITIES IN ALL STATES ARE COLLECTED IN 71 A.L.R.
1504. 

FN22  CRIMINAL EVIDENCE ACT, 61 & 62 VICT., C. 36.  SEE ALSO 51 L.Q.
REV. 443, FOR DISCUSSION OF RIGHT TO CROSS-EXAMINE ABOUT PRIOR
ARRESTS.  FOR REVIEW OF ENGLISH AND STATE LEGISLATION, SEE 1 WIGMORE,
EVIDENCE (3D ED., 1940) SEC. 194, ET SEQ. THE PENNSYLVANIA STATUTE (ACT
OF MARCH 15, 1911, P.L. 20, SEC. 1) DISCUSSED BY WIGMORE HAS BEEN
AMENDED (ACT OF JULY 3, 1947, P.L. 1239, SEC. 1, 19 PS SEC. 711).  THE
CURRENT STATUTE AND PENNSYLVANIA PRACTICE WERE CONSIDERED RECENTLY BY
THE SUPERIOR COURT OF THAT STATE.  COMMONWEALTH V. HURT, 163 PA.
SUPER.  232, 60 A.2D 828. 

FN23  THE AMERICAN LAW INSTITUTE, IN PROMULGATING ITS "MODEL CODE OF
EVIDENCE," INCLUDES THE COMMENT, "CHARACTER, WHEREVER USED IN THESE
RULES, MEANS DISPOSITION NOT REPUTATION.  IT DENOTES WHAT A PERSON IS,
NOT WHAT HE IS REPUTED TO BE.  NO RULES ARE LAID DOWN AS TO PROOF OF
REPUTATION, WHEN REPUTATION IS A FACT TO BE PROVED.  WHEN REPUTATION IS
A MATERIAL MATTER, IT IS PROVABLE IN THE SAME MANNER AS IS ANY OTHER
DISPUTED FACT."  RULE 304.  THE LATTER SENTENCE MAY SEEM AN
OVERSIMPLIFICATION IN VIEW OF THE DECISIONS WE HAVE REVIEWED. 

FN24  SEE NOTE 21. 

FN25  IT MUST NOT BE OVERLOOKED THAT ABUSE OF CROSS-EXAMINATION TO
TEST CREDIBILITY CARRIES ITS OWN CORRECTIVE.  AUTHORITIES ON PRACTICE
CAUTION THE BAR OF THE IMPRUDENCE AS WELL AS THE UNPROFESSIONAL NATURE
OF ATTACKS ON WITNESSES OR DEFENDANTS WHICH ARE LIKELY TO BE RESENTED
BY THE JURY.  WELLMAN, ART OF CROSS-EXAMINATION (1927) P. 167, ET SEQ. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

DESPITE THE FACT THAT MY FEELINGS RUN IN THE GENERAL DIRECTION OF THE
VIEWS EXPRESSED BY MR. JUSTICE RUTLEDGE IN HIS DISSENT, I JOIN THE
COURT'S OPINION.  I DO SO BECAUSE I BELIEVE IT TO BE UNPROFITABLE, ON
BALANCE, FOR APPELLATE COURTS TO FORMULATE RIGID RULES FOR THE
EXCLUSION OF EVIDENCE IN COURTS OF LAW THAT OUTSIDE THEM WOULD NOT BE
REGARDED AS CLEARLY IRRELEVANT IN THE DETERMINATION OF ISSUES.  FOR
WELL-UNDERSTOOD REASONS THIS COURT'S OCCASIONAL VENTURES IN FORMULATING
SUCH RULES HARDLY ENCOURAGE CONFIDENCE IN DENYING TO THE FEDERAL TRIAL
COURTS A POWER OF CONTROL OVER THE ALLOWABLE SCOPE OF CROSS-EXAMINATION
POSSESSED BY TRIAL JUDGES IN PRACTICALLY ALL STATE COURTS.  AFTER ALL,
SUCH UNIFORMITY OF RULE IN THE CONDUCT OF TRIALS IS THE CRYSTALLIZATION
OF EXPERIENCE EVEN WHEN DUE ALLOWANCE IS MADE FOR THE FORCE OF
IMITATION.  TO REJECT SUCH AN IMPRESSIVE BODY OF EXPERIENCE WOULD IMPLY
A MORE DEPENDABLE WISDOM IN A MATTER OF THIS SORT THAN I CAN CLAIM. 

TO LEAVE THE DISTRICT COURTS OF THE UNITED STATES THE DISCRETION
GIVEN TO THEM BY THIS DECISION PRESUPPOSES A HIGH STANDARD OF
PROFESSIONAL COMPETENCE, GOOD SENSE, FAIRNESS AND COURAGE ON THE PART
OF THE FEDERAL DISTRICT JUDGES.  IF THE UNITED STATES DISTRICT COURTS
ARE NOT MANNED BY JUDGES OF SUCH QUALITIES, APPELLATE REVIEW, NO MATTER
HOW STRINGENT, CAN DO VERY LITTLE TO MAKE UP FOR THE LACK OF THEM. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE MURPHY JOINS,
DISSENTING. 

THE COURT'S OPINION CANDIDLY AND INTERESTINGLY POINTS OUT THE
ANOMALOUS FEATURES CHARACTERIZING THE EXCLUSION AND ADMISSION OF SO
CALLED CHARACTER EVIDENCE IN CRIMINAL CASES.  IT ALSO FOR THE FIRST
TIME PUTS THE STAMP OF THE COURT'S APPROVAL UPON THE MOST ANOMALOUS
AND, WHAT IS MORE IMPORTANT, THE MOST UNFAIR STAGE IN THIS EVIDENTIARY
SEQUENCE. 

THERE ARE THREE STAGES.  THE FIRST DENIES THE PROSECUTION THE RIGHT
TO ATTACK THE DEFENDANT'S REPUTATION AS PART OF ITS CASE IN CHIEF,
EITHER BY PROOF OF BAD GENERAL REPUTATION OR BY PROOF OF SPECIFIC
DEROGATORY INCIDENTS DISCONNECTED FROM THE ONE CHARGED AS THE CRIME. 
THE SECOND PERMITS THE DEFENDANT, AT HIS OPTION, TO PROVE BY QUALIFIED
WITNESSES THAT HE BEARS A GOOD GENERAL REPUTATION OR AT LEAST ONE NOT
TARNISHED BY ILL-REPUTE.  THE WITNESS IS FORBIDDEN, HOWEVER, TO GO INTO
PARTICULAR INCIDENTS OR DETAILS OF THE DEFENDANT'S LIFE AND CONDUCT. 
THE WITNESS, ONCE QUALIFIED, CAN STATE ONLY THE GENERAL CONCLUSION OF
THE COMMUNITY CONCERNING THE DEFENDANT'S CHARACTER AS THE WITNESS KNOWS
THAT REPUTATION.  THE THIRD STAGE COMPREHENDS THE PROSECUTION'S
REBUTTAL, AND PARTICULARLY THE LATITUDE OF CROSS-EXAMINATION TO BE
ALLOWED. 

I DO NOT AGREE THAT THIS WHOLE BODY OF LAW IS ANOMALOUS, UNLESS
INDEED ALL THE LAW OF EVIDENCE WITH ITS NUMEROUS RULES OF EXCLUSION AND
EXCEPTIONS TO THEM IS TO BE SO REGARDED.  ANOMALIES THERE ARE, NO DOUBT
WITH MUCH ROOM FOR IMPROVEMENT.  BUT HERE, IF ANYWHERE, THE LAW IS MORE
LARGELY THE RESULT OF EXPERIENCE, OF CONSIDERATIONS OF FAIRNESS AND
PRACTICABILITY DEVELOPED THROUGH THE CENTURIES, THAN OF ANY EFFORT TO
CONSTRUCT A NICELY LOGICAL, WHOLLY CONSISTENT PATTERN OF THINGS. 
IMPERFECT AND VARIABLE AS THE SCHEME HAS BECOME IN THE APPLICATION OF
SPECIFIC RULES, ON THE WHOLE IT REPRESENTS THE RESULT OF CENTURIES OF
COMMON-LAW GROWTH IN THE SEEKING OF ENGLISH-SPEAKING PEOPLES FOR FAIR
PLAY IN THE TRIAL OF CRIME AND OTHER CAUSES. 

MOREOVER, I CANNOT AGREE THAT, IN THE SEQUENCE OF THE THREE STAGES
RELATING TO CHARACTER EVIDENCE, THE ANOMALOUS QUALITY IS EQUALLY
PRESENT IN EACH.  IN MY JUDGMENT THERE IS A VAST DIFFERENCE IN THIS
RESPECT BETWEEN THE RULINGS SUMMARIZING OUR EXPERIENCE IN THE FIRST TWO
STAGES AND THOSE AFFECTING THE THIRD. 

REGARDLESS OF ALL CONSIDERATIONS OF MERE LOGICAL CONSISTENCY, I
SHOULD SUPPOSE THERE WOULD BE FEW NOW, WHETHER LAWYERS OR LAYMEN, WHO
WOULD ADVOCATE CHANGE IN THE PREVAILING RULES GOVERNING THE FIRST TWO
STAGES OF THE SEQUENCE.  IN CRIMINAL CAUSES ESPECIALLY, THERE ARE SOUND
REASONS BASIC TO OUR SYSTEM OF CRIMINAL JUSTICE WHICH JUSTIFY INITIALLY
EXCLUDING THE GOVERNMENT FROM SHOWING THE DEFENDANT'S BAD GENERAL
CHARACTER OR REPUTATION. 

THE COMMON LAW HAS NOT GROWN IN THE TRADITION OF CONVICTING A MAN AND
SENDING HIM TO PRISON BECAUSE HE IS GENERALLY A BAD MAN OR GENERALLY
REGARDED AS ONE.  GENERAL BAD CHARACTER, MUCH LESS GENERAL BAD
REPUTATION, HAS NOT YET BECOME A CRIMINAL OFFENSE IN OUR SCHEME.  OUR
WHOLE TRADITION IS THAT A MAN CAN BE PUNISHED BY CRIMINAL SANCTIONS
ONLY FOR SPECIFIC ACTS DEFINED BEFOREHAND TO BE CRIMINAL, NOT FOR
GENERAL MISCONDUCT OR BEARING A REPUTATION FOR SUCH MISCONDUCT. 

THAT TRADITION LIES AT THE HEART OF OUR CRIMINAL PROCESS.  AND IT IS
THE FOUNDATION OF THE RULE OF EVIDENCE WHICH DENIES TO THE PROSECUTION
THE RIGHT TO SHOW GENERALLY OR BY SPECIFIC DETAILS THAT A DEFENDANT
BEARS A BAD GENERAL ESTIMATE IN HIS COMMUNITY.  IN THE LIGHT OF OUR
FUNDAMENTAL CONCEPTIONS OF CRIME AND OF THE CRIMINAL PROCESS, THERE IS
NOTHING ANOMALOUS IN THIS EXCLUSION.  IT IS DESIGNED TO RESTRAIN PROOF
TO THE LIMITS OF THE CHARGE AND TO PREVENT CONVICTION FOR ONE OFFENSE
BECAUSE PERHAPS OTHERS, OR MISCONDUCT NOT AMOUNTING TO CRIME AT ALL,
HAVE BEEN PERPETRATED OR ARE REPUTED GENERALLY TO LIE AT THE
DEFENDANT'S DOOR. 

THE RULE WHICH ALLOWS THE DEFENDANT TO PROVE HIS GOOD STANDING BY
GENERAL REPUTATION IS, OF COURSE, A KIND OF EXCEPTION TO THE HEARSAY
RULE OF EXCLUSION, THOUGH ONE MAY INQUIRE HOW ELSE COULD REPUTATION BE
PROVED THAN BY HEARSAY IF IT IS TO BE PROVED AT ALL.  THIS INDEED
PRESENTS THE SUBSTANTIAL QUESTION.  APART FROM ITS LONG ACCEPTANCE,
EDGINGTON V. UNITED STATES, 164 U.S. 361, THE RULE ALLOWING THE
EVIDENCE TO COME IN RESTS ON VERY DIFFERENT CONSIDERATIONS FROM THE ONE
WHICH FORBIDS THE GOVERNMENT TO BRING IN PROOF OF BAD PUBLIC CHARACTER
AS PART OF ITS CASE IN CHIEF.  THE DEFENDANT'S PROOF COMES AS
REBUTTAL.  IT IS SUBJECT TO NONE OF THE DANGERS INVOLVING THE
POSSIBILITY OF CONVICTION FOR GENERALLY BAD CONDUCT OR GENERAL REPUTE
FOR IT WHICH WOULD CHARACTERIZE PERMITTING THE PROSECUTION INITIALLY TO
SHOW BAD GENERAL REPUTATION.  THE BASIC REASON FOR EXCLUDING THE LATTER
DOES NOT APPLY TO THE DEFENDANT'S TENDER OF PROOF.    ON THE POSITIVE
SIDE THE RULE IS JUSTIFIED BY THE ANCIENT LAW WHICH PRONOUNCES THAT A
GOOD NAME IS RATHER TO BE CHOSEN THAN GREAT RICHES.  TRUE, MEN OF GOOD
GENERAL REPUTE MAY NOT DESERVE IT. OR THEY MAY SLIP AND FALL IN
PARTICULAR SITUATIONS.  BUT BY COMMON EXPERIENCE THIS IS MORE OFTEN THE
EXCEPTION THAN THE RULE.  MOREOVER, MOST OFTEN IN CLOSE CASES, WHERE
THE PROOF LEAVES ONE IN DOUBT, THE EVIDENCE OF GENERAL REGARD BY ONE'S
FELLOWS MAY BE THE WEIGHT WHICH TURNS THE SCALES OF JUSTICE.  IT MAY
INDEED BE SUFFICIENT TO CREATE A CLEAR CONVICTION OF INNOCENCE OR TO
SOW THAT REASONABLE DOUBT WHICH OUR LAW REQUIRES TO BE OVERCOME IN ALL
CRIMINAL CASES BEFORE THE VERDICT OF GUILTY CAN BE RETURNED. 

THE APPARENT ANOMALY WHICH EXCLUDES THE PROSECUTION'S PROOF OF BAD
CHARACTER IN THE BEGINNING BUT LETS IN THE DEFENDANT'S PROOF OF GOOD
CHARACTER IS THUS ONLY APPARENT.  IT IS PART AND PARCEL OF OUR SCHEME
WHICH FORBIDS CONVICTION FOR OTHER THAN SPECIFIC ACTS CRIMINAL IN
CHARACTER AND WHICH, IN THEIR TRIAL, CASTS OVER THE DEFENDANT THE
PRESUMPTION OF INNOCENCE UNTIL HE IS PROVED GUILTY BEYOND ALL
REASONABLE DOUBT.  TO TAKE AWAY HIS RIGHT TO BRING IN ANY SUBSTANTIAL
AND PERTINENT PROOF BEARING UPON THE EXISTENCE OF REASONABLE DOUBT IS,
SO FAR, TO NULLIFY THE RULE REQUIRING REMOVAL OF THAT DOUBT.  I REJECT
THE COURT'S INTIMATION THAT THESE CONSIDERATIONS HAVE TO SOME EXTENT
BECOME OBSOLETE OR WITHOUT SUBSTANTIAL EFFECTS BECAUSE WE NOW LIVE IN
CITIES MORE GENERALLY THAN FORMERLY.  THEY ARE BASIC PARTS OF OUR PLAN,
PERHAPS THE MORE IMPORTANT TO BE OBSERVED BECAUSE SO MUCH OF OUR LIFE
NOW IS URBAN. 

BUT, FOR A VARIETY OF REASONS, THE LAW ALLOWS THE DEFENDANT TO PROVE
NO MORE THAN HIS GENERAL REPUTATION, BY WITNESSES QUALIFIED TO REPORT
CONCERNING IT.  HE CANNOT SHOW PARTICULAR ACTS OF VIRTUE TO OFFSET THE
PROOF OF HIS SPECIFIC CRIMINALITY ON ANY THEORY THAT "BY THEIR FRUITS
YE SHALL KNOW THEM."  WHETHER THIS BE BECAUSE SUCH PROOF IS IRRELEVANT,
IS TOO DISTRACTING AND TIME-CONSUMING, IS SUMMARIZED IN THE GENERAL
REPORT OF GOOD CHARACTER, OR PERHAPS FOR ALL OF THESE REASONS, THE RULE
IS SETTLED, AND I THINK RIGHTLY, WHICH RESTRICTS THE PROOF TO GENERAL
REPUTE. 

THUS FAR, WHATEVER THE DIFFERENCES IN LOGIC, DIFFERENCES WHICH AS
USUAL INHERE IN THE PREMISES FROM WHICH THINKING STARTS, THERE IS NO
GENERAL DISAGREEMENT OR DISSATISFACTION IN THE RESULTS.  ALL OF THE
STATES AND THE FEDERAL JUDICIAL SYSTEM AS WELL, APPROVE THEM.  NO ONE
WOULD OPEN THE DOORS INITIALLY TO THE PROSECUTION.  NO ONE WOULD CLOSE
THEM TO THE DEFENSE. 

BUT THE SITUATION IS DIFFERENT WHEN WE COME TO THE THIRD STAGE, THAT
OF THE PROSECUTION'S REBUTTAL.  OBVIOUSLY REBUTTAL THERE SHOULD BE,
WHEN THE DEFENDANT HAS OPENED A LINE OF INQUIRY CLOSED TO THE
PROSECUTION AND HAS SOUGHT TO GAIN ADVANTAGE BY PROOF WHICH IT HAS HAD
NO CHANCE TO COUNTERACT.  BUT THE QUESTION OF HOW THE REBUTTAL SHALL BE
MADE PRESENTS THE DIFFICULT PROBLEM. 

THERE CAN BE NO SOUND OBJECTION, OF COURSE, TO CALLING WITNESSES WHO
WILL QUALIFY AS THE WITNESSES FOR THE DEFENSE ARE REQUIRED TO DO, BUT
WHO ALSO WILL CONTRADICT THEIR TESTIMONY.  AND THE PROSECUTION MAY
INQUIRE CONCERNING THE QUALIFICATIONS OF THE WITNESSES FOR THE DEFENSE
TO SPEAK CONCERNING THE DEFENDANT'S GENERAL REPUTATION.  THUS FAR THERE
IS NOTHING TO EXCEED THE BOUNDS OF REBUTTAL OR TAKE THE CASE OUT OF THE
ISSUES AS MADE. 

BUT THESE HAVE NOT BEEN THE LIMITS OF PROOF AND CROSS-EXAMINATION. 
FOR, IN THE GUISE OF "TESTING THE STANDARDS OF THE WITNESS" WHEN HE
SPEAKS TO REPUTATION, THE DOOR HAS BEEN THROWN WIDE OPEN TO TRYING THE
DEFENDANT'S WHOLE LIFE, BOTH IN GENERAL REPUTATION AND IN SPECIFIC
INCIDENT.  WHAT IS WORSE, THIS IS WITHOUT OPPORTUNITY FOR THE DEFENDANT
TO REBUT EITHER THE FACT OR THE INNUENDO FOR WHICH THE EVIDENCE IS
TENDERED MORE GENERALLY THAN OTHERWISE.  HARDLY ANY INCIDENT, HOWEVER
REMOTE OR DEROGATORY, BUT CAN BE DRAWN OUT BY ASKING THE WITNESS WHO
TESTIFIES TO THE DEFENDANT'S GOOD CHARACTER, "HAVE YOU HEARD THIS" OR
"HAVE YOU HEARD THAT."  AND MANY INCIDENTS, WHOLLY INNOCENT IN QUALITY,
CAN BE TURNED BY THE PROSECUTOR, THROUGH AN INFLECTION OR TONE, TO CAST
ASPERSION UPON THE DEFENDANT BY THE MERE ASKING OF THE QUESTION,
WITHOUT HOPE OF AFFIRMATIVE RESPONSE FROM THE WITNESS. 

THE DANGERS, THE POTENTIAL DAMAGE AND PREJUDICE TO THE DEFENDANT AND
HIS CAUSE, HAVE NOT BEEN MORE CLEARLY SUMMARIZED THAN IN THE EXCERPT
FROM WIGMORE'S CLASSIC TREATISE, QUOTED IN NOTE 4 OF THE COURT'S
OPINION, ANTE, P. 473.  HIS SUMMARY OF THE CONSEQUENCES PRODUCED BY THE
RULE BEARS REPETITION AND GREATER EMPHASIS.  HE SAID: 

"THE RUMOR OF THE MISCONDUCT, WHEN ADMITTED, GOES FAR, IN SPITE OF
ALL THEORY AND OF THE JUDGE'S CHARGE, TOWARDS FIXING THE MISCONDUCT AS
A FACT UPON THE OTHER PERSON, AND THUS DOES THREE IMPROPER THINGS,  -
(1) IT VIOLATES THE FUNDAMENTAL RULE OF FAIRNESS THAT PROHIBITS THE USE
OF SUCH FACTS, (2) IT GETS AT THEM BY HEARSAY ONLY, AND NOT BY
TRUSTWORTHY TESTIMONY, AND (3) IT LEAVES THE OTHER PERSON NO MEANS OF
DEFENDING HIMSELF BY DENIAL OR EXPLANATION, SUCH AS HE WOULD OTHERWISE
HAVE HAD IF THE RULE HAD ALLOWED THAT CONDUCT TO BE MADE THE SUBJECT OF
AN ISSUE."  3 WIGMORE, EVIDENCE (3D ED., 1940) SEC. 988. 

THESE CONSEQUENCES ARE NOT DENIED.  BUT IT IS SAID TWO MODES OF
PROTECTION ARE AVAILABLE TO THE ACCUSED.  ONE IS TO REFRAIN FROM
OPENING THE INQUIRY INTO HIS REPUTATION.  THAT ANSWER WOULD HAVE WEIGHT
IF THE REBUTTAL WERE LIMITED TO INQUIRY CONCERNING THE WITNESS'
OPPORTUNITY FOR KNOWING THE ACCUSED AND HIS REPUTATION AND TO PRODUCING
CONTRARY EVIDENCE BY OTHER WITNESSES OF THE SAME GENERAL SORT AS THAT
WHICH IS REFUTED.  BUT IF THE RULE IS SOUND WHICH ALLOWS THE ACCUSED TO
SHOW HIS GOOD REPUTE AND RESTRICTS HIM TO THAT SHOWING, IT NOT ONLY IS
ANOMALOUS, IT IS HIGHLY UNJUST, TO EXACT, AS THE PRICE FOR HIS DOING
SO, THROWING OPEN TO THE PROSECUTION THE OPPORTUNITY NOT ONLY TO REBUT
HIS PROOF BUT TO CALL IN QUESTION ALMOST ANY SPECIFIC ACT OF HIS LIFE
OR TO INSINUATE WITHOUT PROVING THAT HE HAS COMMITTED OTHER ACTS,
LEAVING HIM NO CHANCE TO REPLY.  A FAIR RULE EITHER WOULD AFFORD THIS
CHANCE OR WOULD RESTRICT THE PROSECUTION'S COUNTERPROOF IN THE SAME WAY
HIS OWN IS LIMITED.  THE PREVAILING RULE CHANGES THE WHOLE CHARACTER OF
THE CASE, IN A MANNER THE RULES APPLYING TO THE TWO EARLIER STAGES SEEK
TO AVOID. 

NOR IS IT ENOUGH, IN MY JUDGMENT, TO TRUST TO THE SOUND DISCRETION OF
TRIAL JUDGES TO PROTECT THE DEFENDANT AGAINST EXCESSES OF THE
PROSECUTION.  TO DO THIS EFFECTIVELY THEY NEED STANDARDS.  NONE ARE
PROVIDED UNDER THE COURT'S RULING; INDEED IT WOULD BE DIFFICULT TO
PROVIDE THEM EXCEPT FOR EACH CASE AND QUESTION AS THEY MIGHT ARISE. 

THE FACTS IN THIS CASE, IT SEEMS TO ME, SHOW THE INADEQUACY OF ANY
SUCH GENERAL AND LARGELY UNRESTRICTED DELEGATION.  THEY DEMONSTRATE HOW
FAR AND HOW UNFAIRLY THE PROSECUTION MAY BE ALLOWED TO GO IN BRINGING
EXTRANEOUS AND IMMATERIAL MATTERS TO THE JURY'S ATTENTION, WITH HOWEVER
A PROBABLE EFFECT OF PREJUDICE.  PETITIONER HIMSELF HAD MADE A CLEAN
BREAST OF HIS TWENTY-YEAR-OLD CONVICTION FOR VIOLATING THE NEW YORK
TRADEMARK LAWS.  THAT FACT OF COURSE WAS OF SOME USE FOR TESTING HIS
CHARACTER WITNESSES' STANDARDS FOR SPEAKING TO HIS GENERAL REPUTE,
ALTHOUGH THE CONVICTION WAS SO OLD THAT CONCEIVABLY IT COULD HAVE BUT
LITTLE WEIGHT ON THE ACCUSED'S REPUTATION IN 1947. 

THEN THE PROSECUTION WENT BACK SEVEN YEARS FURTHER AND INQUIRED
WHETHER THE WITNESSES HAD HEARD THAT PETITIONER WAS ARRESTED "ON
OCTOBER 11TH, 1920" FOR RECEIVING STOLEN GOODS.  NONE OF THE WITNESSES
HAD HEARD OF THIS FACT.  THE COURT SOLEMNLY INSTRUCTED THE JURY THAT
THEY WERE NOT TO CONSIDER THAT THE INCIDENT TOOK PLACE, THAT ALL THAT
WAS HAPPENING WAS THAT THE PROSECUTOR WAS TESTING THE WITNESS' STANDARD
OF OPINION OF THE ACCUSED'S REPUTATION.  THIS, AFTER THE COURT OUT OF
THE JURY'S PRESENCE HAD REQUIRED THE PROSECUTOR TO MAKE PROOF
SATISFACTORY TO THE COURT THAT THE INCIDENT HAD TAKEN PLACE. 

THE VERY FORM OF THE QUESTION WAS ITSELF NOTICE OF THE FACT TO THE
JURY.  THEY WELL MIGHT ASSUME, AS MEN OF COMMON SENSE, THAT THE COURT
WOULD NOT ALLOW THE QUESTION IF THE FACT WERE ONLY FICTION.  AND WHY
"ON OCTOBER 11TH, 1920," RATHER THAN MERELY "IN 1920" OR "HAVE YOU EVER
HEARD OF THE DEFENDANT'S BEING ARRESTED, OTHER THAN FOR THE TRADEMARK
VIOLATION?"  WHY ALSO "FOR RECEIVING STOLEN GOODS"?  IN MY OPINION THE
ONLY ANSWERS TO THESE QUESTIONS ARE, NOT THAT THE PROSECUTION WAS
"TESTING THE WITNESS' STANDARD OF OPINION OF REPUTATION," BUT THAT IT
WAS TELLING THE JURY WHAT IT COULD NOT PROVE DIRECTLY AND WHAT THE
PETITIONER HAD NO CHANCE TO DENY, NAMELY, THAT HE HAD BEEN SO ARRESTED;
AND THEREBY EITHER INSINUATING THAT HE HAD BEEN CONVICTED OF THE CRIME
OR LEAVING TO THE JURY TO GUESS THAT THIS HAD BEEN THE OUTCOME.  THE
QUESTION WAS A TYPICAL ABUSE ARISING FROM ALLOWING THIS TYPE OF
INQUIRY.  IT SHOULD HAVE BEEN EXCLUDED.  THERE IS NO WAY TO TELL HOW
MUCH PREJUDICE IT PRODUCED. 

MOREOVER, I DO NOT THINK THE MERE QUESTION OF KNOWLEDGE OF A PRIOR
ARREST IS ONE PROPER TO BE ASKED, EVEN IF INQUIRY AS TO CLEARLY
DEROGATORY ACTS IS TO BE PERMITTED.  OF COURSE MEN TAKE SUCH AN INQUIRY
AS REFLECTING UPON THE PERSON ARRESTED.  BUT, FOR USE IN A CRIMINAL
PROSECUTION, I DO NOT THINK THEY SHOULD BE ALLOWED TO DO SO.  THE MERE
FACT OF A SINGLE ARREST TWENTY-SEVEN YEARS BEFORE TRIAL, WITHOUT
FURTHER SHOWING OF CRIMINAL PROCEEDINGS OR THEIR OUTCOME, WHETHER
ACQUITTAL OR CONVICTION, SELDOM COULD HAVE SUBSTANTIAL BEARING UPON
ONE'S PRESENT GENERAL REPUTATION; INDEED IT IS NOT PER SE A DEROGATORY
FACT.  BUT IT IS PUT IN GENERALLY, AND I THINK WAS PUT IN EVIDENCE IN
THIS CASE, NOT TO CALL IN QUESTION THE WITNESS' STANDARD OF OPINION
BUT, BY THE VERY QUESTION, TO GIVE ROOM FOR PLAY OF THE JURY'S
UNGUARDED CONJECTURE AND PREJUDICE.  THIS IS NEITHER FAIR PLAY NOR DUE
PROCESS.  IT IS A PERVERSION OF THE CRIMINAL PROCESS AS WE KNOW IT.
FOR IT PERMITS WHAT THE RULE APPLIED IN THE FIRST STAGE FORBIDS, TRIAL
OF THE ACCUSED NOT ONLY FOR GENERAL BAD CONDUCT OR REPUTATION BUT ALSO
FOR CONJECTURE, GOSSIP, INNUENDO AND INSINUATION. 

ACCORDINGLY, I THINK THIS JUDGMENT SHOULD BE REVERSED.  I ALSO THINK
THE PREVAILING PRACTICE SHOULD BE CHANGED.  ONE JUDGE OF THE COURT OF
APPEALS HAS SUGGESTED WE DO THIS BY ADOPTING THE ILLINOIS RULE,  FN1
NAMELY, BY LIMITING INQUIRY CONCERNING SPECIFIC INCIDENTS TO QUESTIONS
RELATING TO PRIOR OFFENSES SIMILAR TO THAT FOR WHICH THE DEFENDANT IS
ON TRIAL.  LOGICALLY THAT RULE IS SUBJECT TO THE SAME OBJECTIONS AS THE
GENERALLY PREVAILING ONE.  BUT IT HAS THE PRACTICAL MERIT OF GREATLY
REDUCING THE SCOPE AND VOLUME OF ALLOWABLE QUESTIONS CONCERNING
SPECIFIC ACTS, RUMORS, ETC., WITH COMPARABLE REDUCTION OF INNUENDO,
INSINUATION AND GOSSIP.  MY OWN PREFERENCE AND, I THINK, THE ONLY FAIR
RULE WOULD BE TO FORECLOSE THE ENTIRE LINE OF INQUIRY CONCERNING
SPECIFIC INCIDENTS IN THE DEFENDANT'S PAST, BOTH ON CROSS-EXAMINATION
AND ON NEW EVIDENCE IN REBUTTAL.  THIS WOULD LEAVE ROOM FOR PROPER
REBUTTAL WITHOUT TURNING THE DEFENDANT'S TRIAL FOR A SPECIFIC OFFENSE
INTO ONE FOR ALL HIS PREVIOUS MISCONDUCT, CRIMINAL OR OTHER, AND WOULD
PUT THE PROSECUTION ON THE SAME PLANE WITH THE DEFENDANT IN RELATION TO
THE USE OF CHARACTER EVIDENCE.  THIS, IT SEEMS TO ME, IS THE ONLY FAIR
WAY TO HANDLE THE MATTER. 

FN1  SEE PEOPLE V. HANNON, 381 ILL. 206, 211, FOR THE MOST RECENT
STATEMENT OF THE RULE ESTABLISHED BY AIKEN V. PEOPLE, 183 ILL. 215; CF.
PEOPLE V. PAGE, 365 ILL. 524.  IN NORTH CAROLINA A CHARACTER WITNESS
MAY BE ASKED ON CROSS-EXAMINATION ABOUT THE "GENERAL REPUTATION OF THE
DEFENDANT AS TO PARTICULAR VICES OR VIRTUES," BUT NOT ABOUT RUMORS OF
SPECIFIC ACTS OF MISCONDUCT.  STATE V. SHEPHERD, 220 N.C. 377, 379;
STATE V. HOLLY, 155 N.C. 485, 492.  THE ARIZONA SUPREME COURT, WHICH
ONCE FOLLOWED THE RULE ADOPTED BY THE COURT TODAY, SMITH V. STATE, 22
ARIZ. 229, MORE RECENTLY, IN REVERSING A JUDGMENT BECAUSE A CHARACTER
WITNESS WAS CROSS-EXAMINED AS TO HIS KNOWLEDGE OF SPECIFIC ACTS OF
MISCONDUCT, STATED THAT CROSS-EXAMINATION SHOULD BE LIMITED TO
QUESTIONS CONCERNING THE SOURCE OF THE WITNESS' KNOWLEDGE OF THE
ACCUSED'S REPUTATION AND SHOULD NOT INCLUDE QUESTIONS CONCERNING
SPECIFIC ACTS OF MISCONDUCT.  VILIBORGHI V. STATE, 45 ARIZ. 275, 285. 
..END :



FRAZIER V. UNITED STATES, 335 U.S. 497 


NO. 44.  ARGUED OCTOBER 15, 1948.  - DECIDED DECEMBER 20, 1948.  - 82
U.S. APP. D.C. 332, 163 F.2D 817, AFFIRMED. 


1.  PETITIONER WAS CONVICTED IN A FEDERAL COURT IN THE DISTRICT OF
COLUMBIA FOR VIOLATING THE HARRISON NARCOTICS ACT.  IN THE
CIRCUMSTANCES OF THIS CASE, HE WAS NOT DENIED THE TRIAL "BY AN
IMPARTIAL JURY" GUARANTEED BY THE SIXTH AMENDMENT, ALTHOUGH THE JURY
WAS COMPOSED ENTIRELY OF EMPLOYEES OF THE FEDERAL GOVERNMENT AND ONE OF
THEM AND THE WIFE OF ANOTHER WERE EMPLOYEES OF THE TREASURY DEPARTMENT,
BUT NOT OF ITS BUREAU OF NARCOTICS WHICH ADMINISTERS AND ENFORCES THE
FEDERAL NARCOTICS STATUTES.  PP. 498-514. 

2.  A MOTION TO STRIKE THE ENTIRE PANEL FOR ALLEGED IRREGULARITIES IN
THE METHOD OF ITS SELECTION, WHICH WAS NOT MADE UNTIL AFTER AN ENTIRE
MORNING HAD BEEN CONSUMED IN UNCOMPLETED EFFORTS TO SELECT A JURY AND
WHICH WAS SUPPORTED SOLELY BY COUNSEL'S UNSWORN STATEMENTS, WITHOUT ANY
PROOF OR OFFER OF PROOF, WAS WITHOUT MERIT.  PP. 503-504. 

3.  GIVEN 10 ARBITRARY CHOICES AMONG 22 PROSPECTIVE JURORS NOT
DISQUALIFIED FOR CAUSE, OF WHOM 13 WERE GOVERNMENT EMPLOYEES AND 9
PRIVATELY ENGAGED, PETITIONER KNOWINGLY REJECTED BY PEREMPTORY
CHALLENGES ALL 9 OF THE LATTER AND ACCEPTED WITHOUT CHALLENGE ALL BUT
ONE OF THE FORMER.  HELD: HIS OBJECTION TO THE RESULTING JURY ON THE
GROUND THAT IT CONSISTED ENTIRELY OF GOVERNMENT EMPLOYEES WAS NOT
JUSTIFIED.  PP. 504-512. 

4.  IN VIEW OF THE D.C. CODE (1940) SEC. 11-1420, WHICH REMOVED (WITH
SPECIFIED EXCEPTIONS) THE PREVIOUSLY EXISTING DISQUALIFICATION OF
GOVERNMENT EMPLOYEES FOR JURY SERVICE IN THE DISTRICT OF COLUMBIA IN
CRIMINAL AND OTHER CASES TO WHICH THE GOVERNMENT IS A PARTY, THE MERE
FACT OF GOVERNMENT EMPLOYMENT IS INSUFFICIENT TO DISQUALIFY A JUROR WHO
IS OTHERWISE QUALIFIED.  UNITED STATES V. WOOD, 299 U.S. 123.  PP. 508
512. 

5.  WHERE PETITIONER KNEW THAT THE WIFE OF ONE JUROR WAS EMPLOYED BY
THE TREASURY AND KNEW THAT ANOTHER JUROR WAS A GOVERNMENT EMPLOYEE BUT
FAILED TO INQUIRE AS TO THE EXACT NATURE OF THE LATTER'S EMPLOYMENT AND
FAILED TO CHALLENGE EITHER JUROR WHILE THE JURY WAS BEING SELECTED,
PETITIONER'S CHALLENGE TO THESE TWO JURORS IN A MOTION FOR A NEW TRIAL
WAS RIGHTLY OVERRULED.  PP. 512-514. 

FRAZIER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PETITIONER WAS CONVICTED IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA OF VIOLATING THE HARRISON NARCOTICS ACT, 26 U.S.C.
SEC. 2553.  THE JURY WAS COMPOSED ENTIRELY OF EMPLOYEES OF THE FEDERAL
GOVERNMENT AND ONE OF THEM AND THE WIFE OF ANOTHER WERE EMPLOYEES OF
THE TREASURY DEPARTMENT, BUT NOT OF ITS BUREAU OF NARCOTICS WHICH
ADMINISTERS AND ENFORCES THE FEDERAL NARCOTICS STATUTES.  THE COURT OF
APPEALS AFFIRMED THE CONVICTION.  82 U.S. APP. D.C. 332, 163 F.2D 817. 
THIS COURT GRANTED CERTIORARI.  333 U.S. 873.  AFFIRMED, P. 514. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

PETITIONER'S PRIMARY COMPLAINT IS THAT HE HAS BEEN DENIED THE TRIAL
"BY AN IMPARTIAL JURY" WHICH THE SIXTH AMENDMENT GUARANTEES.  HE WAS
CONVICTED OF VIOLATING THE HARRISON NARCOTICS ACT,  FN1 BY A JURY
COMPOSED ENTIRELY OF EMPLOYEES OF THE FEDERAL GOVERNMENT.  ONE JUROR,
MOORE, AND THE WIFE OF ANOTHER, ROOT, WERE EMPLOYED IN THE OFFICE OF
THE SECRETARY OF THE TREASURY, WHO IS CHARGED BY LAW WITH
RESPONSIBILITY FOR ADMINISTERING AND ENFORCING THE FEDERAL NARCOTICS
STATUTES.  FN2  AS AGAINST OBJECTIONS BASED ON THESE FACTS AND OTHER
MATTERS, THE COURT OF APPEALS AFFIRMED PETITIONER'S CONVICTION AND
SENTENCE.  82 U.S. APP. D.C. 332, 163 F.2D 817.  HE HAS SOUGHT RELIEF
HERE BY APPLICATION FOR CERTIORARI LIMITED TO THE ISSUES RELATING TO
THE JURY'S SELECTION AND COMPOSITION.  TO REVIEW THE DETERMINATION MADE
OF THEM BY THE COURT OF APPEALS WE GRANTED CERTIORARI.  333 U.S. 873. 

PETITIONER'S OBJECTIONS COMPREHEND AN ATTACK UPON THE ENTIRE PANEL OF
PROSPECTIVE JURORS, MADE DURING THE COURSE OF VOIR DIRE EXAMINATION, IN
AN EFFORT TO HAVE THE PANEL STRICKEN; A CHALLENGE TO THE JURY AS
FINALLY CONSTITUTED, AFTER PETITIONER HAD EXHAUSTED HIS TEN PEREMPTORY
CHALLENGES, VOIR DIRE EXAMINATION HAD BEEN COMPLETED, AND THE TWELVE
JURORS WHO TRIED THE CASE HAD BEEN QUALIFIED; AND, EITHER SEPARATELY OR
IN CONJUNCTION WITH HIS OTHER OBJECTIONS,  FN3  A CLAIM OF REVERSIBLE
ERROR ON ACCOUNT OF THE INCLUSION OF MOORE AND ROOT AS JURORS.  AN
ADEQUATE UNDERSTANDING OF THE ISSUES THUS RAISED REQUIRES A CONDENSED
STATEMENT OF THE PROCEEDINGS FOLLOWED IN THE DISTRICT COURT IN THE
SELECTION OF THE JURY. 

PURSUANT TO CUSTOMARY PRACTICE, THOSE PROCEEDINGS BEGAN WITH THE
SEATING IN THE BOX OF TWELVE PROSPECTIVE JURORS FOR PURPOSES OF
EXAMINATION ON VOIR DIRE.  THESE TWELVE HAD BEEN CHOSEN PREVIOUSLY, IN
ACCORDANCE WITH PREVAILING PRACTICE, FROM JURY LISTS MAINTAINED TO
SUPPLY GRAND AND PETIT JURIES FOR ALL DIVISIONS OF THE DISTRICT COURT. 
CF. D.C. CODE (1940) SEC. 11-1401, ET SEQ. THERE IS NO CLAIM THAT THOSE
LISTS WERE IMPROPERLY MADE UP.  THE USUAL PRELIMINARY EXAMINATION BEGAN
AND CONTINUED UNTIL THE NOON RECESS, AS IS LATER NOTED, WITH COUNSEL
RAISING NO QUESTION CONCERNING THE CONSTITUTION OF THE LISTS OR THE
PANEL. 

PETITIONER INQUIRED, AMONG OTHER THINGS, HOW MANY WERE GOVERNMENT
EMPLOYEES.  FIVE OF THE ORIGINAL TWELVE INDICATED THEY WERE.  ONE OF
THESE WAS EXCUSED BY THE COURT.  THE OTHER FOUR, INCLUDING MOORE,
REMAINED UNCHALLENGED AND SERVED ON THE JURY.  THE SEVEN REMAINING
VENIREMEN, INCLUDING TWO HOUSEWIVES, WERE ENGAGED IN PRIVATE
OCCUPATIONS.  ALL SEVEN WERE CHALLENGED PEREMPTORILY BY PETITIONER. 

TO REPLACE THEM AND THE ONE EXCUSED BY THE COURT, OTHERS INCLUDING
ROOT WERE CALLED FROM TIME TO TIME, AND WERE EXAMINED IN SUBSTANTIALLY
THE SAME MANNER AS THE ORIGINAL TWELVE.  ALTOGETHER THEY NUMBERED
THIRTEEN, NINE GOVERNMENT EMPLOYEES, TWO IN PRIVATE EMPLOYMENT, AND TWO
THE NATURE OF WHOSE WORK DOES NOT APPEAR.  OF THE LATTER, ONE WAS
EXCUSED BY THE COURT AND THE OTHER PEREMPTORILY CHALLENGED BY THE
PROSECUTION.  PETITIONER PEREMPTORILY CHALLENGED BOTH OF THOSE IN
PRIVATE EMPLOYMENT AND ONE OF THE NINE IN GOVERNMENT SERVICE.  THIS
EXHAUSTED PETITIONER'S PEREMPTORY CHALLENGES AND LEFT EIGHT
UNCHALLENGED GOVERNMENT EMPLOYEES TO JOIN THE FOUR LIKE ONES ORIGINALLY
CALLED IN COMPOSING THE TWELVE WHO MADE UP THE JURY AS FINALLY CHOSEN. 
FN4 

THE PROCESS OF SELECTION WAS INTERRUPTED SHORTLY BEFORE NOON, WHEN
PETITIONER STILL HAD TWO UNUSED PEREMPTORY CHALLENGES, BY A SHORTAGE OF
VENIREMEN.  ANTICIPATING THAT OTHERS WOULD BE AVAILABLE LATER IN THE
DAY, THE COURT ADJOURNED UNTIL 2:30 P.M.  ON ITS RECONVENING,
ADDITIONAL PROSPECTIVE JURORS WERE AVAILABLE.  BUT PETITIONER THEN
MOVED FOR THE FIRST TIME TO STRIKE THE ENTIRE PANEL FOR ALLEGED
IRREGULARITY IN THE METHOD USED FOR SELECTING IT, ASSERTED TO HAVE BEEN
DISCOVERED BY COUNSEL THROUGH "A LITTLE INVESTIGATION" DURING THE NOON
RECESS.  THE COURT DENIED THE MOTION, WITH LEAVE TO RENEW THE OBJECTION
IN A MOTION FOR A NEW TRIAL IF PETITIONER SHOULD BE CONVICTED.  FN5
THE MATERIAL PART OF THE COLLOQUY RELATING TO THESE PROCEEDINGS AND
DISCLOSING THE GROUNDS FOR THE MOTION AND ITS DENIAL IS SET FORTH IN
THE MARGIN.  FN6 

PETITIONER THEN EXERCISED HIS TWO REMAINING PEREMPTORY CHALLENGES,
AFTER WHICH HE INQUIRED OF THE TWELVE JURORS THEN IMPANELED HOW MANY
WERE EMPLOYED BY THE GOVERNMENT.  WHEN ALL INDICATED THEY WERE,
PETITIONER CHALLENGED THE JURY AS IMPANELED FOR CAUSE.  THE CHALLENGE
AND THE COURT'S RULING IN DENIAL OF IT APPEAR BELOW.  FN7  ALTHOUGH
COUNSEL SOUGHT TO INTERMINGLE WITH THIS CHALLENGE THE ONE PREVIOUSLY
MADE TO THE PANEL,  FN8  THE TWO ARE DISTINCT ATTACKS AND MUST BE
TREATED SEPARATELY. 

I. THE METHOD OF SELECTING THE PANEL.  - APART FROM THE OBJECTION
THAT THIS CHALLENGE CAME TOO LATE, CF. AGNEW V. UNITED STATES, 165 U.S.
36, IT IS WITHOUT MERIT.  IT CONSISTS EXCLUSIVELY OF COUNSEL'S
STATEMENTS, UNSWORN AND UNSUPPORTED BY ANY PROOF OR OFFER OF PROOF. 
THE GOVERNMENT DID NOT EXPLICITLY DENY THOSE STATEMENTS.  BUT IT WAS
UNDER NO NECESSITY TO DO SO.  THE BURDEN WAS UPON THE PETITIONER AS
MOVING PARTY "TO INTRODUCE, OR TO OFFER, DISTINCT EVIDENCE IN SUPPORT
OF THE MOTION."  GLASSER V. UNITED STATES, 315 U.S. 60, 87.  SEE ALSO
SMITH V. MISSISSIPPI, 162 U.S. 592; TARRANCE V. FLORIDA, 188 U.S. 519;
MARTIN V. TEXAS, 200 U.S. 316; CF. BROWNFIELD V. SOUTH CAROLINA, 189
U.S. 426. 

OF ITSELF THIS FAILURE IN TENDER OF PROOF WOULD REQUIRE DENIAL OF THE
MOTION.  BUT EVEN IF PROOF HAD BEEN MADE OR OFFERED THERE WOULD HAVE
BEEN NO SHOWING SUFFICIENT TO REQUIRE CONTRARY ACTION.  THE STATEMENTS,
IF TREATED AS ALLEGATIONS, COMPREHENDED IN SUBSTANCE BUT TWO THINGS. 
ONE WAS THE VERY BRIEF STATEMENT OF FACTS RELATING TO THE PROCEDURE
FOLLOWED, NAMELY, THE SUBPOENAING OF ABOUT FIVE HUNDRED JURORS, THEIR
EQUAL DIVISION FOR ASSIGNMENT TO TWO BRANCHES OF THE COURT, AND THAT
THOSE IN EACH GROUP WHO DID NOT WISH TO SERVE WERE "TOLD TO STEP TO ONE
SIDE."  THIS WAS ALL IN THE WAY OF FACTS.  FROM THEM FOLLOWED COUNSEL'S
VAGUE AND GENERAL CONCLUSION THAT THE REMAINING NUMBER, FROM WHICH IT
WAS SAID JURORS WERE PICKED, "CONSISTED MOSTLY OF GOVERNMENT EMPLOYEES
AND HOUSEWIVES, AND UNEMPLOYED."  COUNSEL THEN URGED THAT THIS
FURNISHED BASIS FOR APPLYING THE DECISION IN THIEL V. SOUTHERN PACIFIC
CO., 328 U.S. 217, AS NOT AFFORDING "A PROPER CROSS-SECTION." 

THE TRIAL COURT RIGHTLY HELD THE THIEL CASE INAPPLICABLE, FOR THE
REASONS THAT IT REQUIRES A SHOWING OF SYSTEMATIC EXCLUSION OR ATTEMPT
TO EXCLUDE FROM THE PANEL A PARTICULAR OCCUPATIONAL GROUP OR GROUPS
OTHERWISE ELIGIBLE FOR JURY SERVICE, AND THE STATEMENTS AND CONCLUSIONS
OF COUNSEL HERE DISCLOSED NO SUCH ATTEMPT.  BEYOND THIS, MOREOVER, IT
SEEMS HIGHLY DOUBTFUL THAT THE FACTS SET FORTH IN THE STATEMENT, IF
PROVED, WOULD CONSTITUTE ANY IRREGULARITY.  NOTHING IS STATED
CONCERNING THE NUMBERS WHO STEPPED TO ONE SIDE, THEIR OCCUPATIONAL
CLASSIFICATIONS, WHETHER THEY WERE EXCUSED OR, IF ANY, HOW MANY, BY
WHOM OR FOR WHAT CAUSE.  FOR ALL ONE COULD KNOW FROM THE STATEMENT,
THOSE STEPPING TO ONE SIDE MAY HAVE INCLUDED BUT ONE IN TEN, AND OF
THESE, HALF OR MORE MAY HAVE BEEN HELD FOR JURY SERVICE AFTER CLAIMING
EXEMPTION OR SEEKING EXCUSE.  THE FACTS STATED, THEREFORE, TAKEN IN THE
LIGHT OF PERTINENT FACTS OMITTED, LAY NO FOUNDATION WHATEVER FOR
COUNSEL'S CONCLUSIONS, INFERENTIALLY THAT JURORS WERE SELECTED ONLY
FROM THOSE NOT STANDING ASIDE, AND EXPLICITLY THAT THE REMAINING NUMBER
"CONSISTED MOSTLY OF GOVERNMENT EMPLOYEES AND HOUSEWIVES, AND
UNEMPLOYED."  THE STATEMENT WAS OBVIOUSLY INSUFFICIENT TO LAY ANY
FOUNDATION FOR VALID ATTACK UPON THE METHOD FOLLOWED IN SELECTING THE
PANEL. 

II.  COMPOSITION OF THE JURY.  - THE ESSENCE OF THIS ATTACK CONSISTS
IN COUNSEL'S STATEMENT, "NOW, I HAVE EXHAUSTED MY TEN CHALLENGES, AND
HERE I HAVE TWELVE GOVERNMENT JURORS WHO ARE TO DECIDE THIS DEFENDANT'S
CASE, WHICH IS A VIOLATION OF THE FEDERAL STATUTE, BEING BROUGHT IN A
FEDERAL COURT, PROSECUTED BY A FEDERAL PROSECUTOR, AND THE CASE IS
PRESENTED BY FEDERAL AGENTS."  FN9  SO PUT, THE CHALLENGE HAS THE SOUND
OF PLAUSIBILITY.  POSSIBLY IT WOULD HAVE MORE OF THE SUBSTANCE OF IT IF
IN THIS CASE IT DID NOT APPEAR THAT PETITIONER HIMSELF WAS RESPONSIBLE,
BY DELIBERATE CHOICE, FOR THE JURY'S FINAL COMPOSITION. 

GIVEN TEN ARBITRARY CHOICES AMONG TWENTY-TWO PROSPECTIVE JURORS NOT
DISQUALIFIED FOR CAUSE, OF WHOM THIRTEEN WERE GOVERNMENT EMPLOYEES AND
NINE PRIVATELY ENGAGED, HE KNOWINGLY, OF HIS OWN RIGHT, REJECTED NINE
OF THE LATTER AND WITH KNOWLEDGE OR THE FULL OPPORTUNITY TO SECURE IT
ACCEPTED WITHOUT CHALLENGE ALL BUT ONE OF THE FORMER.  IT WOULD SEEM
THAT ORDINARILY ONE ANXIOUS TO SECURE A JURY REPRESENTATIVE OF BOTH
PRIVATE AND PUBLIC EMPLOYMENT IN A COMMUNITY LIKE WASHINGTON,  FN10
AND PARTICULARLY TO AVOID OVERWEIGHTING THE JURY WITH GOVERNMENT
EMPLOYEES, WELL MIGHT HAVE FOUND A MORE EFFECTIVE WAY OF UTILIZING HIS
PEREMPTORY CHALLENGES TO ACHIEVE THOSE OBJECTIVES. 

THE RIGHT OF PEREMPTORY CHALLENGE IS GIVEN, OF COURSE, TO BE
EXERCISED IN THE PARTY'S SOLE DISCRETION AND WAS SO EXERCISED HERE.  WE
DO NOT QUESTION PETITIONER'S PRIVILEGE TO UTILIZE HIS PEREMPTORY
CHALLENGES AS HE DID.  BUT THE RIGHT IS GIVEN IN AID OF THE PARTY'S
INTEREST TO SECURE A FAIR AND IMPARTIAL JURY, NOT FOR CREATING GROUND
TO CLAIM PARTIALITY WHICH BUT FOR ITS EXERCISE WOULD NOT EXIST.  FN11
IT DOES NOT FOLLOW THAT BY USING THE RIGHT AS HE PLEASES, HE OBTAINS
THE FURTHER ONE TO REPUDIATE THE CONSEQUENCES OF HIS OWN CHOICE. 

HERE PETITIONER WAS GIVEN A FAIRLY AND LAWFULLY SELECTED PANEL.  FROM
IT ALL DISQUALIFIED FOR CAUSE WERE EXCUSED.  THE FULLY QUALIFIED JURORS
REMAINING WERE FAIRLY EVENLY DISTRIBUTED AMONG PERSONS PUBLICLY AND
PRIVATELY EMPLOYED.  FOR REASONS ENTIRELY HIS OWN, PETITIONER CHOSE TO
ELIMINATE THE LATTER AND RETAIN THE FORMER.  THIS WAS A DELIBERATE
CHOICE, NOT AN UNINFORMED ONE.  WE NEED DRAW NO CONCLUSION CONCERNING
WHETHER OR NOT IT WAS MADE FOR THE PURPOSE OF CREATING THE BASIS NOW
ASSERTED FOR OBJECTING TO THE JURY'S COMPOSITION.  FN12  RATHER WE MUST
TAKE IT AS HAVING BEEN MADE EXACTLY FOR THE PURPOSE FOR WHICH THE RIGHT
WAS GIVEN, NAMELY, TO AFFORD PETITIONER AN OPPORTUNITY BEYOND THE
MINIMUM REQUIREMENTS OF FAIR SELECTION TO EXPRESS AN ARBITRARY
PREFERENCE AMONG JURORS PROPERLY SELECTED AND FULLY QUALIFIED TO SIT IN
JUDGMENT ON HIS CASE.  CF. NOTE 11.  ANY OTHER VIEW WOULD CONVICT HIM
OF ABUSING HIS PRIVILEGE.  THIS WE ARE UNWILLING TO DO. 

BY THE SAME TOKEN WE ARE NOT WILLING TO JOIN IN REPUDIATING THE
CONSEQUENCES OF HIS OWN SELECTION.  WE TAKE PETITIONER AT HIS WORD AS
EXPRESSED BY HIS REPEATED CHOICES.  THE FACT THAT HE EXERCISED HIS
PEREMPTORY CHALLENGES AS HE DID, SO FREQUENTLY AND CONSISTENTLY TO
ELIMINATE PRIVATELY EMPLOYED JURORS AND RETAIN ONLY GOVERNMENT
EMPLOYEES, HARDLY CAN BE SAID TO GIVE CAUSE FOR HIM TO CLAIM
OVERWEIGHTING OF THE JURY WITH GOVERNMENT EMPLOYEES.  THERE WAS NO
DEFECT OF THE PANEL IN THIS RESPECT.  NOR IS THERE ANY CLAIM OR BASIS
FOR ONE THAT THE PROSECUTION UTILIZED ITS PEREMPTORY CHALLENGES TO
BRING ABOUT A JURY CONSTITUTED ONLY OF THEM.  IT WOULD BE GOING VERY
FAR TO SAY THAT IN THE CIRCUMSTANCES SHOWN BY THIS RECORD PETITIONER
WAS DEPRIVED, EITHER IN LAW OR IN FACT, OF AN IMPARTIAL JURY OR INDEED
OF ONE FAIRLY REPRESENTATIVE OF THE COMMUNITY.  IF DEPRIVATION THERE
WAS, EVEN IN THE LATTER SENSE,  FN13  IT WAS THE RESULT OF HIS OWN
CHOICE, NOT OF IMPERFECTION IN THE CHOICES TENDERED HIM BY LAW OR IN
THE PROCEDURES OF SELECTION AFFORDED. 

IN RULING UPON PETITIONER'S OBJECTION THE TRIAL JUDGE ASSESSED THE
SITUATION AS FOLLOWS: "CHANCE HAS RESULTED IN THIS JURY PANEL OF TWELVE
BEING COMPOSED OF GOVERNMENT EMPLOYEES, BUT THE JURY LIST FROM WHICH
THEY BY CHANCE WERE SELECTED IS A MIXTURE OF GOVERNMENT EMPLOYEES AND
PRIVATE EMPLOYEES."  FN14  EVEN IN THIS VIEW OF WHAT TOOK PLACE,
PETITIONER HAS NO CAUSE TO COMPLAIN.  THE WELL-SETTLED RULE IS THAT,
GIVEN A LAWFULLY SELECTED PANEL, FREE FROM ANY TAINT OF INVALID
EXCLUSIONS OR PROCEDURES IN SELECTION AND FROM WHICH ALL DISQUALIFIED
FOR CAUSE HAVE BEEN EXCUSED, NO CAUSE FOR COMPLAINT ARISES MERELY FROM
THE FACT THAT THE JURY FINALLY CHOSEN HAPPENS ITSELF NOT TO BE
REPRESENTATIVE OF THE PANEL OR INDEED OF THE COMMUNITY.  FN15  THERE
IS, UNDER SUCH CIRCUMSTANCES, NO RIGHT TO ANY PARTICULAR COMPOSITION OR
GROUP REPRESENTATION ON THE JURY.  FN16    FINALLY, IN THIS PHASE OF
THE CASE, UNITED STATES V. WOOD, 299 U.S. 123, GOES FAR TOWARD
PRECLUDING PETITIONER'S OBJECTION.  THAT DECISION SUSTAINED THE ACT OF
CONGRESS OF AUGUST 22, 1935, NOW D.C. CODE (1940) SEC. 11-1420,
REMOVING (WITH SPECIFIED EXCEPTIONS) THE DISQUALIFICATION OF GOVERNMENT
EMPLOYEES PREVIOUSLY EXISTING IN THE DISTRICT OF COLUMBIA FOR JURY
SERVICE IN CRIMINAL AND OTHER CASES TO WHICH THE GOVERNMENT WAS A
PARTY.  THE DISQUALIFICATION HAD ARISEN IN 1908 BY VIRTUE OF THE
DECISION, MADE ON COMMON-LAW GROUNDS, IN CRAWFORD V. UNITED STATES, 212
U.S. 183. 

OWING TO THE LARGE AND INCREASING PROPORTION OF GOVERNMENT TO PRIVATE
EMPLOYEES IN THE DISTRICT, THE EFFECT OF THE CRAWFORD DECISION HAD BEEN
BY 1935 TO CREATE DIFFICULTIES IN SECURING PROPERLY QUALIFIED JURORS. 
TO MEET THIS SITUATION THE 1935 STATUTE WAS ADOPTED.  FN17  IT
CONTINUED SPECIFIED EXEMPTIONS PREVIOUSLY EXISTING, INCLUDING ALL
EXECUTIVE AND JUDICIAL OFFICERS OF THE UNITED STATES, AND THEN DIRECTED
IN PRESENTLY MATERIAL PART:  "ALL OTHER PERSONS, OTHERWISE QUALIFIED
ACCORDING TO LAW WHETHER EMPLOYED IN THE SERVICE OF THE GOVERNMENT OF
THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA  ...  SHALL BE
QUALIFIED TO SERVE AS JURORS IN THE DISTRICT OF COLUMBIA AND SHALL NOT
BE EXEMPT FROM SUCH SERVICE  ...  "  D.C. CODE (1940) SEC. 11-1420. 

THE WOOD CASE WAS A CRIMINAL PROSECUTION FOR THEFT FROM A PRIVATE
CORPORATION.  THREE OF THE JURORS WERE FEDERAL EMPLOYEES, CHALLENGED
FOR CAUSE ON THAT GROUND.  IN SUSTAINING THE CONVICTION AND THE STATUTE
THE COURT FIRST HELD THAT CONGRESS HAD NOT "UNDERTAKEN TO PRECLUDE THE
ASCERTAINMENT OF ACTUAL BIAS," AND THAT THE QUESTION IN ISSUE WAS
LIMITED TO "IMPLIED BIAS, A BIAS ATTRIBUTABLE IN LAW TO THE PROSPECTIVE
JUROR REGARDLESS OF ACTUAL PARTIALITY."  299 U.S. AT 133, 134.  AS TO
THIS THE COURT SAID OF THE STATUTE, "THE ENACTMENT ITSELF IS TANTAMOUNT
TO A LEGISLATIVE DECLARATION THAT THE PRIOR DISQUALIFICATION  THE
CRAWFORD RULING) WAS ARTIFICIAL AND NOT NECESSARY TO SECURE
IMPARTIALITY."  ID. AT 148-149.  BY WAY OF SUSTAINING THE LEGISLATIVE
JUDGMENT, THE COURT ADDED ON ITS OWN ACCOUNT: 

"IN CRIMINAL PROSECUTIONS THE GOVERNMENT IS ACTING SIMPLY AS THE
INSTRUMENT OF THE PUBLIC IN ENFORCING PENAL LAWS FOR THE PROTECTION OF
SOCIETY.  IN THAT ENFORCEMENT ALL CITIZENS ARE INTERESTED.  IT IS
DIFFICULT TO SEE WHY A GOVERNMENTAL EMPLOYEE, MERELY BY VIRTUE OF HIS
EMPLOYMENT, IS INTERESTED IN THAT ENFORCEMENT EITHER MORE OR LESS THAN
ANY GOOD CITIZEN IS OR SHOULD BE.  ...  WE THINK THAT THE IMPUTATION OF
BIAS SIMPLY BY VIRTUE OF GOVERNMENTAL EMPLOYMENT, WITHOUT REGARD TO ANY
ACTUAL PARTIALITY GROWING OUT OF THE NATURE AND CIRCUMSTANCES OF
PARTICULAR CASES, RESTS ON AN ASSUMPTION WITHOUT ANY RATIONAL
FOUNDATION."  IBID. 

THE COURT WAS NOT CONFRONTED IN THE WOOD CASE WITH THE EXACT
SITUATION WE HAVE HERE, NAMELY, THAT ALL OF THE JURORS FINALLY SELECTED
WERE GOVERNMENT EMPLOYEES.  BUT THE PURPORT OF THE DECISION WAS THAT
THE MERE FACT OF GOVERNMENT EMPLOYMENT, WITHOUT MORE, WOULD BE
INSUFFICIENT UNDER THE STATUTE'S MANDATE TO DISQUALIFY A JUROR. 
IMPLICIT IN THIS WAS THE CONCEPTION THAT, INSOFAR AS THAT FACT ALONE IS
OR MAY BE EFFECTIVE, GOVERNMENT EMPLOYEES AND PERSONS PRIVATELY ENGAGED
WERE PUT UPON THE SAME BASIS WITHOUT ANY LIMITATION, EXPLICIT OR
IMPLIED, UPON THE NUMBER WHO MIGHT BE SELECTED AS JURORS FROM EITHER
GROUP.  FN18  THE EFFECT OF THESE RULINGS, WE THINK, WAS TO MAKE
GOVERNMENT EMPLOYEES SUBJECT, AS ARE ALL OTHER PERSONS AND IN THE SAME
MANNER, TO CHALLENGE FOR "ACTUAL BIAS"  FN19  AND UNDER ALL ORDINARY
CIRCUMSTANCES ONLY TO SUCH CHALLENGE.  IN THAT VIEW, ABSENT ANY BASIS
FOR SUCH CHALLENGE, WE DO NOT SEE HOW A RIGHT TO CHALLENGE THE PANEL AS
A WHOLE CAN ARISE FROM THE MERE FACT THAT THE JURY CHOSEN BY PROPER
PROCEDURES FROM A PROPERLY SELECTED PANEL TURNS OUT TO BE COMPOSED
WHOLLY OF GOVERNMENT EMPLOYEES OR, A FORTIORI, OF PERSONS IN PRIVATE
EMPLOYMENT. 

THE OPINION IN THE WOOD CASE, HOWEVER, WAS VERY CAREFUL TO STRESS
MORE THAN ONCE THAT THE SIXTH AMENDMENT PRESCRIBES NO SPECIFIC TESTS
FOR DETERMINING IMPARTIALITY.  299 U.S. AT 133.  IT AFFORDED FURTHER
ASSURANCES, BEYOND THOSE GIVEN BY ART. III, SEC. 2, CL. 3, RELATING TO
TRIAL BY JURY, IN RESPECT TO SPEED, PUBLICITY, IMPARTIALITY, ETC.  ID.
AT 142.  BUT IT DID NOT REQUIRE IN THESE RESPECTS "THE PARTICULAR FORMS
AND PROCEDURE USED AT COMMON LAW."  P. 143.  THE OPINION EMPHASIZED
ESPECIALLY THAT "IMPARTIALITY IS NOT A TECHNICAL CONCEPTION.  IT IS A
STATE OF MIND.  FOR THE ASCERTAINMENT OF THIS MENTAL ATTITUDE OF
APPROPRIATE INDIFFERENCE, THE CONSTITUTION LAYS DOWN NO PARTICULAR
TESTS AND PROCEDURE IS NOT CHAINED TO ANY ANCIENT AND ARTIFICIAL
FORMULA."  PP. 145-146. 

THIS SEEMS TO CONTEMPLATE IMPLICITLY THAT IN EACH CASE A BROAD
DISCRETION AND DUTY RESIDE IN THE COURT TO SEE THAT THE JURY AS FINALLY
SELECTED IS SUBJECT TO NO SOLID BASIS OF OBJECTION ON THE SCORE OF
IMPARTIALITY, EVEN THOUGH THAT BASIS MIGHT POSSIBLY ARISE THROUGH THE
WORKING OF CHANCE OR OTHER LAWFUL FACTORS WHOLLY WITHIN THE FRAMEWORK
OF PROPER PROCEDURES FOR SELECTING THE PANEL AND CHOOSING THE JURY FROM
IT.  SUCH A SITUATION COULD ARISE, IF AT ALL, ONLY IN THE RAREST AND
MOST EXTRAORDINARY COMBINATION OF CIRCUMSTANCES.  BUT EVEN IF THAT
POSSIBILITY IS TAKEN AS CONCEDED, FOR THE REASONS WE HAVE ALREADY
STATED THIS CASE PRESENTS NO SUCH PROBLEM. 

III.  THE CHALLENGES TO JURORS MOORE AND ROOT.  - CONSIDERED AS
INDEPENDENT AND INDIVIDUAL CHALLENGES FOR "ACTUAL BIAS,"  FN20  THE
OBJECTIONS TO THESE JURORS COME TOO LATE.  MOORE WAS A TREASURY
MESSENGER.  ROOT'S WIFE WAS A TREASURY EMPLOYEE.  PETITIONER'S COUNSEL
KNEW OF THE EMPLOYMENT OF ROOT'S WIFE AND THAT MOORE WAS A FEDERAL
EMPLOYEE.  HE DID NOT INQUIRE WHERE MOORE WAS EMPLOYED, BUT COULD HAVE
KNOWN HIS EMPLOYMENT'S EXACT NATURE.  FN21  IT DOES NOT APPEAR THAT
EITHER MOORE OR ROOT'S WIFE WAS CONNECTED WITH THE BUREAU OF NARCOTICS
OR HAD ANY DUTY EVEN REMOTELY RELATING TO ITS FUNCTIONS OR THOSE OF THE
SECRETARY IN RELATION TO THEM.  FN22 

AS RESPECTS CHALLENGE FOR "ACTUAL BIAS," THE WOOD OPINION WAS CAREFUL
TO PUT GOVERNMENT EMPLOYEES ON THE SAME BASIS AS PROSPECTIVE JURORS
PRIVATELY EMPLOYED.  IT STATED: 

"ALL THE RESOURCES OF APPROPRIATE JUDICIAL INQUIRY REMAIN AVAILABLE
IN THIS INSTANCE AS IN OTHERS TO ASCERTAIN WHETHER A PROSPECTIVE JUROR,
ALTHOUGH NOT EXEMPTED FROM SERVICE, HAS ANY BIAS IN FACT WHICH WOULD
PREVENT HIS SERVING AS AN IMPARTIAL JUROR.  IN DEALING WITH AN EMPLOYEE
OF THE GOVERNMENT, THE COURT WOULD PROPERLY BE SOLICITOUS TO DISCOVER
WHETHER, IN VIEW OF THE NATURE OR CIRCUMSTANCES OF HIS EMPLOYMENT, OR
OF THE RELATION OF THE PARTICULAR GOVERNMENTAL ACTIVITY TO THE MATTERS
INVOLVED IN THE PROSECUTION, OR OTHERWISE, HE HAD ACTUAL BIAS, AND, IF
HE HAD, TO DISQUALIFY HIM."  FN23 

PETITIONER CHALLENGED NEITHER MOORE NOR ROOT FOR "ACTUAL BIAS,"
THOUGH AFFORDED THE FULLEST OPPORTUNITY LEGALLY AND FACTUALLY FOR DOING
SO.  AFTER ACCEPTING THEM BEFORE TRIAL, HE COULD NOT CHALLENGE THEM
SUCCESSFULLY IN A MOTION FOR A NEW TRIAL.  QUEEN V. HEPBURN, 7 CRANCH
290, 297; RAUB V. CARPENTER, 187 U.S. 159; CF. UNITED STATES V. GALE,
109 U.S. 65.  SEE KOHL V. LEHLBACK, 160 U.S. 293, 299-302.  WHETHER OR
NOT EMPLOYMENT IN THE TREASURY OUTSIDE THE NARCOTICS BUREAU WOULD
CONSTITUTE GROUND FOR CHALLENGE FOR "ACTUAL BIAS,"  FN24  SUCH
EMPLOYMENT IN THE CONNECTIONS DISCLOSED HERE AFFECTING MOORE AND ROOT
WAS NOT SO OBVIOUS A DISQUALIFICATION OR SO INHERENTLY PREJUDICIAL AS A
MATTER OF LAW, IN THE ABSENCE OF ANY CHALLENGE TO THEM BEFORE TRIAL, AS
TO REQUIRE THE COURT OF ITS OWN MOTION OR ON PETITIONER'S SUGGESTION
AFTERWARD TO SET THE VERDICT ASIDE AND GRANT A NEW TRIAL. 

THE CHALLENGE TO MOORE AND ROOT STANDS NO BETTER IF CONSIDERED, NOT
AS A BELATED INDIVIDUAL CHALLENGE FOR "ACTUAL BIAS" TO EACH, BUT AS
ADDITIONAL SUPPORT OR BUTTRESSING FOR THE CHALLENGE TO THE COMPOSITION
OF THE JURY AS A WHOLE.  APART FROM THE FACT THAT THE TWO SORTS OF
CHALLENGE ARE DISTINCT AND ARE THEREFORE TO BE DEALT WITH SEPARATELY,
THE CHALLENGE TO THE COMPOSITION OF THE JURY AS MADE TO THE TRIAL COURT
AND AS RULED UPON BY IT, MADE NO SPECIAL REFERENCE TO EITHER MOORE OR
ROOT OR THE PARTICULAR BASES FOR OBJECTION NOW RAISED TO THEM.  FN25
THOSE REFERENCES, SO FAR AS IS SHOWN BY THE RECORD, FIRST APPEARED IN
THE ASSIGNMENTS OF ERROR MADE BY PETITIONER IN THE COURT OF APPEALS. 
THEY THEREFORE CAME TOO LATE, EVEN IF THEY COULD BE CONSIDERED AS
FORMING PART OF THE CHALLENGE TO THE JURY'S COMPOSITION OR AS ADDING
ANYTHING OF WEIGHT TO THAT CHALLENGE. 

WHETHER THE MATTER IS CONSIDERED TECHNICALLY OR ON THE BROADER,
NONTECHNICAL BASIS OF IMPARTIALITY AS A STATE OF MIND, PETITIONER HAS
SHOWN NO GROUND FOR BELIEVING THAT HE DID NOT RECEIVE A TRIAL "BY AN
IMPARTIAL JURY" SUCH AS THE SIXTH AMENDMENT ASSURED HIM. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  26 U.S.C. SEC. 2553.  THE INDICTMENT CHARGED, SUBSTANTIALLY IN
THE STATUTORY LANGUAGE, THAT PETITIONER KNOWINGLY, WILFULLY, UNLAWFULLY
AND FELONIOUSLY DID "PURCHASE, SELL, DISPENSE, AND DISTRIBUTE" CERTAIN
NARCOTIC DRUGS "NOT THEN AND THERE, IN OR FROM, THE ORIGINAL STAMPED
PACKAGE." 

FN2  PURSUANT TO 26 U.S.C. SEC. 2606 THE SECRETARY HAS DELEGATED TO
THE COMMISSIONER OF NARCOTICS "THE INVESTIGATION, DETECTION AND
PREVENTION OF VIOLATIONS OF THE FEDERAL NARCOTIC AND MARIHUANA LAWS." 
21 C.F.R., 1946 SUPP., SEC. 206.1.  THE BUREAU OF NARCOTICS, CREATED
WITHIN THE TREASURY DEPARTMENT, 5 U.S.C. SEC. 282, IS SUBJECT TO THE
SECRETARY'S "GENERAL SUPERVISION AND DIRECTION," 21 C.F.R., 1946 SUPP.,
SEC. 206.3, AND ITS DECISIONS ARE SUBJECT TO REVIEW BY HIM.  5 U.S.C.
SEC. 282C.  THERE WERE 87,830 EMPLOYEES IN THE TREASURY DEPARTMENT AS
OF SEPTEMBER 30, 1948, OF WHOM 19,645 WERE EMPLOYED IN THE DISTRICT OF
COLUMBIA.  MONTHLY REPORT OF EMPLOYMENT, EXECUTIVE BRANCH OF THE
FEDERAL GOVERNMENT, U.S. CIV. SERV. COMM'N, SEPTEMBER, 1948, TABLE V.
PUBLISHED FIGURES ARE NOT AVAILABLE TO SHOW THE NUMBER OF THESE
EMPLOYED BY THE NARCOTICS BUREAU, BUT OBVIOUSLY IN VIEW OF THE NUMBER
AND DIVERSITY OF THE TREASURY DEPARTMENT'S FUNCTIONS THEY MUST HAVE
COMPRISED ONLY A COMPARATIVELY SMALL FRACTION OF THE TOTAL. 

FN3  SEE PART III INFRA. 

FN4  IN SUMMARY, TWENTY-FIVE PROSPECTIVE JURORS WERE EXAMINED.  OF
THESE ONE WAS PEREMPTORILY CHALLENGED BY THE PROSECUTION AND TWO WERE
EXCUSED BY THE COURT FOR CAUSE.  OF THE REMAINING TWENTY-TWO, THIRTEEN
WERE IN GOVERNMENT WORK, NINE PRIVATELY EMPLOYED.  PETITIONER
PEREMPTORILY CHALLENGED THE NINE AND ONE GOVERNMENT EMPLOYEE, THUS
EXHAUSTING HIS PEREMPTORY CHALLENGES.  IN THIS MANNER THE JURY COMPOSED
WHOLLY OF FEDERAL EMPLOYEES RESULTED.  PRIOR TO HIS TRIAL PETITIONER
MADE NO INDIVIDUAL CHALLENGE TO ANY OF THE TWELVE WHO CONSTITUTED THE
JURY AS FINALLY SELECTED.  THEY INCLUDED MOORE AND ROOT. 

FN5  THE OBJECTION WAS RENEWED IN PETITIONER'S MOTIONS IN ARREST OF
JUDGMENT AND FOR A NEW TRIAL, AND WAS DENIED IN EACH INSTANCE. 

FN6  "MR. BUCKLEY.  IF YOUR HONOR PLEASE, I HAVE MADE A LITTLE
INVESTIGATION OF THE IMPANELING OR SELECTION OF THIS PANEL HERE AS WELL
AS SELECTION OF THE OTHER PANELS SITTING THIS MONTH, AND I MOST
RESPECTFULLY SUBMIT THAT THE METHOD AND PROCEDURE USED IN SELECTING IS
IRREGULAR, AND I AM GOING TO MOVE TO STRIKE THIS WHOLE PANEL, THE
REASON BEING THIS:  THAT FROM THE INQUIRIES I HAVE MADE, THERE WERE
ABOUT FIVE HUNDRED OR FIVE HUNDRED AND A FEW JURORS SUBPENAED - THAT
IS, INDIVIDUALLY SUBPENAED TO APPEAR HERE - FROM WHICH THEY SELECTED A
SUFFICIENT NUMBER OF JURORS HERE. 

"IF THERE WERE FIVE HUNDRED, THEY WERE DIVIDED INTO TWO GROUPS, TWO
HUNDRED FIFTY FOR ONE COURT AND TWO HUNDRED FIFTY FOR ANOTHER COURT,
AND OF THE TWO HUNDRED FIFTY FOR EACH COURT, THEY WERE ASKED HOW MANY
OF THOSE TWO HUNDRED FIFTY DID NOT DESIRE TO SERVE AS JURORS, TO RAISE
THEIR HANDS, SO THOSE WHO RAISED THEIR HANDS WERE TOLD TO STEP TO ONE
SIDE, AND OUT OF THE REMAINING NUMBER THAT WERE LEFT THEY PICKED THE
JURORS, AND THE REMAINING NUMBER THAT WERE LEFT CONSISTED MOSTLY OF
GOVERNMENT EMPLOYEES AND HOUSEWIVES, AND UNEMPLOYED.  THERE ARE ONLY A
FEW UNEMPLOYED. 

"I KNOW YOUR HONOR HAS READ THIS CASE IN THE SUPREME COURT, THIEL V.
SOUTHERN PACIFIC COMPANY.  THIS IS NOT A PROPER CROSSSECTION. 

"THE COURT.  THE THIEL CASE HOLDS THAT IT MUST BE SHOWN THAT THERE
WAS A SYSTEMATIC ATTEMPT TO EXCLUDE A CERTAIN TYPE OR GROUP OF
PERSONS.  ...  THAT IS WHAT THAT CASE HOLDS, AND THAT IS NOT THE
SITUATION HERE." 

FN7  "MR. BUCKLEY.  IF YOUR HONOR PLEASE, WITH REFERENCE TO THE
MOTION WHICH I MADE A WHILE AGO, MOVING TO STRIKE THE WHOLE PANEL, I
NOW FIND MYSELF IN THIS POSITION.  I HAVE EXHAUSTED MY TEN CHALLENGES. 

"IN SELECTING THESE DIFFERENT PANELS ON THE FIRST TUESDAY OF THE
MONTH, THE CLERK SAYS TO THE FIVE HUNDRED OR TWO HUNDRED FIFTY,
WHICHEVER IT MAY BE, INDIVIDUALS WHO ARE SUMMONED TO APPEAR HERE, FROM
WHICH TO PICK THE JURIES, 'ALL THOSE WHO DO NOT DESIRE TO SERVE, STEP
TO ONE SIDE.' 

"THAT LEAVES A BATCH OF GOVERNMENT EMPLOYEES AND HOUSEWIVES. 

"NOW, I HAVE EXHAUSTED MY TEN CHALLENGES, AND HERE I HAVE TWELVE
GOVERNMENT JURORS WHO ARE TO DECIDE THIS DEFENDANT'S CASE, WHICH IS A
VIOLATION OF THE FEDERAL STATUTE, BEING BROUGHT IN A FEDERAL COURT,
PROSECUTED BY A FEDERAL PROSECUTOR, AND THE CASE IS PRESENTED BY
FEDERAL AGENTS.  I SUBMIT THERE IS REASON TO CHALLENGE THESE PEOPLE FOR
CAUSE. 

"THE COURT.  I WILL DENY THE MOTION AND REQUEST AT THIS TIME THAT YOU
TAKE IT UP LATER, IN A MOTION AFTER THE VERDICT, IF YOU THINK IT IS
SOUND.  I DO NOT BELIEVE YOUR MOTION IS SOUND.  CHANCE HAS RESULTED IN
THIS JURY PANEL OF TWELVE BEING COMPOSED OF GOVERNMENT EMPLOYEES, BUT
THE JURY LIST FROM WHICH THEY BY CHANCE WERE SELECTED IS A MIXTURE OF
GOVERNMENT EMPLOYEES AND PRIVATE EMPLOYEES."    FN8  SEE NOTE 7; CF.
NOTE 6. 

FN9  SEE NOTE 7. 

FN10  SEE NOTE 17 INFRA AND TEXT. 

FN11  THE RIGHT IS IN THE NATURE OF A STATUTORY PRIVILEGE, VARIABLE
IN THE NUMBER OF CHALLENGES ALLOWED, WHICH MAY BE WITHHELD ALTOGETHER
WITHOUT IMPAIRING THE CONSTITUTIONAL GUARANTIES OF "AN IMPARTIAL JURY"
AND A FAIR TRIAL.  STILSON V. UNITED STATES, 250 U.S. 583, 586, QUOTED
IN UNITED STATES V. WOOD, 299 U.S. 123, 145.    EXCEPT IN CASES OF
TREASON AND OTHER CAPITAL OFFENSES, NO RIGHT TO PEREMPTORY CHALLENGES
EXISTED IN FEDERAL CRIMINAL TRIALS UNTIL THE ACT OF JUNE 8, 1872, 17
STAT. 282, REV. STAT. SEC. 819, UNLESS A RULE OF THE PARTICULAR FEDERAL
COURT MADE APPLICABLE A PROVISION OF STATE LAW ALLOWING PEREMPTORY
CHALLENGES IN NONCAPITAL CASES.  ACT OF APRIL 30, 1790, SEC. 30, 1
STAT. 112, 119; UNITED STATES V. RANDALL, FED. CAS. NO. 16,118; UNITED
STATES V. COTTINGHAM, FED. CAS. NO. 14,872; UNITED STATES V. MCPHERSON,
FED. CAS. NO. 15,703; UNITED STATES V. KROUSE, FED. CAS. NO. 15,544. 
(HOWEVER, THE RIGHT OF PEREMPTORY CHALLENGE IN CAPITAL CASES, WHICH
EXISTED AT COMMON LAW, HAS BEEN SPOKEN OF AS "ONE OF THE MOST IMPORTANT
OF THE RIGHTS SECURED TO THE ACCUSED."  POINTER V. UNITED STATES, 151
U.S. 396, 408; SEE ALSO LEWIS V. UNITED STATES, 146 U.S. 370, 376.) 

IN NONCAPITAL CASES, SUCH AS THIS, THE PRIVILEGE AFFORDS PROTECTION
ADDITIONAL TO CONSTITUTIONAL GUARANTIES, TO BE HAD EXCLUSIVELY AT THE
PARTY'S OPTION.  IF NO SUCH PRIVILEGE HAD BEEN GIVEN IN THE DISTRICT OF
COLUMBIA, THE NORMAL AND VALID COURSE OF SELECTION IN THIS CASE WOULD
HAVE PRODUCED A JURY COMPOSED BOTH OF FEDERAL EMPLOYEES AND PERSONS
ENGAGED IN PRIVATE OCCUPATIONS; IN OTHER WORDS, WOULD HAVE MADE IT
IMPOSSIBLE FOR PETITIONER TO RAISE HIS OBJECTION TO THE JURY'S
COMPOSITION. 

FN12  SEE NOTE 4; ALSO NOTE 11 AND TEXT. 

FN13 THE ASSUMPTION IS NOT MEANT TO IMPLY THAT SUCH A DEPRIVATION
ALONE WOULD CONSTITUTE GROUNDS FOR CHALLENGE TO THE JURY.  SEE TEXT AND
AUTHORITIES CITED INFRA AT NOTE 15. 

FN14  SEE NOTE 7. 

FN15  RUTHENBERG V. UNITED STATES, 245 U.S. 480; THOMAS V. TEXAS, 212
U.S. 278, 282; VIRGINIA V. RIVES, 100 U.S. 313, 322-323; HIGGINS V.
UNITED STATES, 81 U.S. APP. D.C. 371, 372, 160 F.2D 222, 223; SEE FAY
V. NEW YORK, 332 U.S. 261, 284-285; THIEL V. SOUTHERN PACIFIC CO., 328
U.S. 217, 220; CF. AKINS V. TEXAS, 325 U.S. 398, 403-404. 

FN16  IBID. 

FN17  SEE UNITED STATES V. WOOD, 299 U.S. AT 132-133, QUOTING FROM
THE OPINION OF THE COURT OF APPEALS, 65 APP. D.C. 330, 332, 83 F.2D
587, 589.  SEE ALSO H.R. REP. NO. 1421, SEN. REP. NO. 1297, 74TH CONG.,
1ST SESS.; 79 CONG. REC. 13,401, RELATING TO THE BILL WHICH BECAME THE
ACT OF CONGRESS OF AUGUST 22, 1935, NOW D.C. CODE (1940) SEC. 11-1420. 
THE GOVERNMENT'S BRIEF IN THE WOOD CASE, RELYING UPON FIGURES ASSEMBLED
FROM VARIOUS OFFICIAL SOURCES, INDICATED THAT OF THE PROBABLE 353,949
PERSONS OTHERWISE AVAILABLE FOR JURY SERVICE IN THE DISTRICT OF
COLUMBIA AS OF 1935, SOME 156,874, OR 44.3 PER CENT, WERE DISQUALIFIED
TO SERVE EITHER BY VIRTUE OF EXEMPTION OR BY THE MERE FACT OF
EMPLOYMENT BY OR RECEIPT OF BENEFITS FROM THE GOVERNMENT, UNDER THE
RULING IN THE CRAWFORD CASE. 

FN18  GIVEN OF COURSE A PANEL AND JURY OTHERWISE SELECTED IN
ACCORDANCE WITH LAW.  SINCE THE WOOD CASE THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA HAS HELD THAT JURIES INCLUDING FOUR AND NINE
GOVERNMENT EMPLOYEES WERE NOT INHERENTLY DEFECTIVE.  GREAT ATLANTIC &
PACIFIC TEA CO. V. DISTRICT OF COLUMBIA, 67 APP. D.C. 30, 89 F.2D 502;
HIGGINS V. UNITED STATES, 81 U.S. APP. D.C. 371, 160 F.2D 222.  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS HELD THAT A CANAL ZONE JURY
COMPOSED ENTIRELY OF PERSONS WHO WERE EITHER EMPLOYEES OR TENANTS OF
THE GOVERNMENT WAS NOT IMPROPERLY CONSTITUTED.  SCHACKOW V. GOVERNMENT
OF THE CANAL ZONE, 108 F.2D 625. 

FN19  THE PHRASE "ACTUAL BIAS" IS USED IN THIS OPINION AS IT WAS IN
THE WOOD CASE.  THE WOOD OPINION STATED:  "THE BIAS OF A PROSPECTIVE
JUROR MAY BE ACTUAL OR IMPLIED; THAT IS, IT MAY BE BIAS IN FACT OR BIAS
CONCLUSIVELY PRESUMED AS MATTER OF LAW."  299 U.S. AT 133.  IT LATER
POINTED OUT THAT "CHALLENGES AT COMMON LAW WERE TO THE ARRAY, THAT IS,
WITH RESPECT TO THE CONSTITUTION OF THE PANEL, OR TO THE POLLS, FOR
DISQUALIFICATION OF A JUROR.  CHALLENGES TO THE POLLS WERE EITHER
'PRINCIPAL' OR 'TO THE FAVOR,' THE FORMER BEING UPON GROUNDS OF
ABSOLUTE DISQUALIFICATION, THE LATTER FOR ACTUAL BIAS."  PP. 134-135. 
AS APPEARS FROM THE PORTION OF THE OPINION QUOTED IN THE TEXT INFRA AT
NOTE 23, THE COURT REGARDED "ACTUAL BIAS" OR CHALLENGE "TO THE FAVOR"
AS INCLUDING NOT ONLY PREJUDICE IN THE SUBJECTIVE SENSE BUT ALSO SUCH
AS MIGHT BE THOUGHT IMPLICITLY TO ARISE "IN VIEW OF THE NATURE OR
CIRCUMSTANCES OF HIS EMPLOYMENT, OR OF THE RELATION OF THE PARTICULAR
GOVERNMENTAL ACTIVITY TO THE MATTERS INVOLVED IN THE PROSECUTION, OR
OTHERWISE." 

FN20  CF. TEXT SUPRA AT NOTES 3 AND 8. 

FN21  APART FROM PETITIONER'S OPPORTUNITY FOR DISCOVERY BY SPECIFIC
INQUIRY, LISTS OF JURY PANELS, SHOWING THE NAME, AGE, ADDRESS, AND
OCCUPATION OF EACH MEMBER ARE PREPARED IN THE CRIMINAL DIVISION OF THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AND ARE AVAILABLE TO
COUNSEL BEFORE TRIAL ON REQUEST. 

FN22  CF. NOTE 2. 

FN23  299 U.S. AT 133-134. 

FN24  IN UNITED STATES V. WOOD THE COURT, SPEAKING OF THE CRAWFORD
CASE, SAID:  "IT WILL BE OBSERVED THAT THE EMPLOYMENT WAS IN THE VERY
DEPARTMENT TO THE AFFAIRS OF WHICH THE ALLEGED CONSPIRACY RELATED.  BUT
THE DECISION TOOK A BROADER RANGE AND DID NOT REST UPON THAT POSSIBLE
DISTINCTION."  299 U.S. AT 140.  IT IS AT LEAST HIGHLY DOUBTFUL THAT AN
EMPLOYMENT HAVING NO MORE RELATIONSHIP TO THE PARTICULAR GOVERNMENTAL
ACTIVITY INVOLVED IN THE PROSECUTION THAN DID THAT OF MOORE IN THIS
CASE, CF. NOTE 2, OR THAT OF ROOT'S WIFE, WOULD GIVE GROUND FOR
CHALLENGE FOR "ACTUAL BIAS," ALTHOUGH COMING UNDER THE SAME ULTIMATE
DEPARTMENTAL SUPERVISION, EVEN THOUGH IF TIMELY CALLED TO THE COURT'S
ATTENTION THE CIRCUMSTANCE MIGHT AFFORD BASIS FOR THE COURT, IN AN
EXCESS OF CAUTION, TO EXCUSE THE VENIREMAN. 

FN25  SEE NOTE 7. 

MR. JUSTICE JACKSON, DISSENTING. 

ON ONE PROPOSITION I SHOULD EXPECT TRIAL LAWYERS TO BE NEARLY
UNANIMOUS:  THAT A JURY, EVERY MEMBER OF WHICH IS IN THE HIRE OF ONE OF
THE LITIGANTS, LACKS SOMETHING OF BEING AN IMPARTIAL JURY.  A SYSTEM
WHICH HAS PRODUCED SUCH AN OBJECTIONABLE RESULT AND ALWAYS TENDS TO
REPEAT IT, SHOULD, IN MY OPINION, BE DISAPPROVED BY THIS COURT IN
EXERCISE OF ITS SUPERVISORY POWER OVER FEDERAL COURTS. 

WERE THE EMPLOYER AN INDIVIDUAL, A RAILROAD, AN INDUSTRIAL CONCERN,
OR EVEN A STATE, I THINK BIAS WOULD MORE READILY BE IMPLIED; BUT ITS
EXISTENCE WOULD BE NO MORE PROBABLE.  THIS CRIMINAL TRIAL WAS AN
ADVERSARY PROCEEDING, WITH THE GOVERNMENT BOTH AN ACTUAL AND NOMINAL
LITIGANT.  IT WAS THE PATRON AND BENEFACTOR OF THE WHOLE JURY, PLUS ONE
JUROR'S WIFE FOR GOOD MEASURE.  AT THE SAME TIME THAT IT MADE ITS PLEA
TO THEM TO CONVICT, IT HAD THE UPPER HAND OF EVERY ONE OF THEM IN
MATTERS SUCH AS PAY AND PROMOTION.  OF LATE YEARS, THE GOVERNMENT IS
USING ITS POWER AS NEVER BEFORE TO PRY INTO THEIR LIVES AND THOUGHTS
UPON THE SLIGHTEST SUSPICION OF LESS THAN COMPLETE TRUSTWORTHINESS.  IT
DEMANDS NOT ONLY PROBITY BUT UNQUESTIONING IDEOLOGICAL LOYALTY.  A
GOVERNMENT EMPLOYEE CANNOT TODAY BE DISINTERESTED OR UNCONCERNED ABOUT
HIS APPEARANCE OF FAITHFUL AND ENTHUSIASTIC SUPPORT FOR GOVERNMENT
DEPARTMENTS WHOSE PRESTIGE AND RECORD IS, SOMEWHAT, IF ONLY A LITTLE,
AT STAKE IN EVERY SUCH PROSECUTION.  AND PROSECUTORS SELDOM FAIL TO
STRESS, IF NOT TO EXAGGERATE, THE IMPORTANCE OF THE CASE BEFORE THEM TO
THE WHOLE SOCIAL, IF NOT THE COSMIC, ORDER.  EVEN IF WE HAVE NO REASON
TO BELIEVE THAT AN ACQUITTING JUROR WOULD BE SUBJECTED TO
EMBARRASSMENTS OR REPRISALS, WE CANNOT EXPECT EVERY CLERK AND MESSENGER
IN THE GREAT BUREAUCRACY TO FEEL SO SECURE AS TO PUT HIS DEPENDENCE ON
THE GOVERNMENT WHOLLY OUT OF MIND.  I DO NOT DOUBT THAT THE GOVERNMENT
EMPLOYEES AS A CLASS POSSESS A NORMAL INDEPENDENCE AND FORTITUDE.  BUT
WE HAVE GROUNDS TO ASSUME ALSO THAT THE NORMAL PROPORTION OF THEM ARE
SUBJECT TO THAT VERY HUMAN WEAKNESS, ESPECIALLY DISPLAYED IN
WASHINGTON, WHICH LEADS MEN TO "  ...  CROOK THE PREGNANT HINGES OF THE
KNEE WHERE THRIFT MAY FOLLOW FAWNING."  SO I REJECT AS SPURIOUS ANY
VIEW THAT GOVERNMENT EMPLOYMENT DIFFERS FROM ALL OTHER EMPLOYMENT IN
CREATING NO PSYCHOLOGICAL PRESSURE OF DEPENDENCY OR INTEREST IN GAINING
FAVOR, WHICH MIGHT TEND TO PREDETERMINE ISSUES IN THE INTEREST OF THE
PARTY WHICH HAS COMPLETE MASTERY OVER THE JUROR'S AMBITION AND
POSITION.  BUT EVEN IF THIS SUSPICION CAN BE DISMISSED BY THE COURT AS
A MERE PHANTASY, IT CANNOT DENY THAT SUCH A JURY HAS A ONE-SIDED
OUTLOOK ON PROBLEMS BEFORE IT AND AN APPEARANCE OF GOVERNMENT LEVERAGE
WHICH IS ITSELF A BLEMISH ON THE NAME OF JUSTICE IN THE DISTRICT OF
COLUMBIA. 

BECAUSE THIS SEMBLANCE OF PARTIALITY REFLECTS ON THE COURTS, EVEN IF
IT DOES NOT PREJUDICE THE DEFENDANT IN A PARTICULAR CASE, I AM NOT
DISPOSED TO LABOR THE ARGUMENT AS TO WHETHER COUNSEL FOR THIS DEFENDANT
DID ALL THAT HE MIGHT OR SHOULD HAVE DONE BY WAY OF OBJECTION.  HE DID
PROTEST AS SOON AS IT WAS APPARENT WHAT WAS HAPPENING TO HIM, AND THAT
SEEMS TO ME SUFFICIENT IN FACE OF ADVERSE RULINGS.  BUT EVEN IF
DEFENDANT'S OBJECTION WERE BELATED OR TECHNICALLY DEFECTIVE, I STILL
THINK THE COURT DESERVES AND SHOULD REQUIRE A MORE NEUTRAL JURY FOR ITS
OWN APPEARANCES, EVEN IF DEFENDANT DOES NOT DESERVE AND CANNOT DEMAND
ONE. 

THE CAUSE OF OVERLOADING THIS JURY WITH PERSONS BEHOLDEN TO THE
GOVERNMENT IS NO MYSTERY AND NO ACCIDENT.  IT IS DUE TO A DEFECT IN A
SYSTEM WHICH WILL CONTINUE TO OPERATE IN THE SAME DIRECTION SO LONG AS
THE SAME PRACTICE IS FOLLOWED.  WHILE COUNSEL DID NOT PROVE IT UNDER
OATH, HE STATED IT FOR THE RECORD AND NEITHER THE DISTRICT ATTORNEY NOR
THE LEARNED TRIAL JUDGE, BOTH OF WHOM MUST HAVE KNOWN THE FACTS, DENIED
OR QUESTIONED HIS STATEMENT OR ASKED HIM FOR BETTER EVIDENCE.  THAT
DEFECT IS THIS:  WHEN THE PANEL OF JURORS WAS DRAWN, THE COURT APPEARS
TO HAVE ASKED ALL THOSE WHO DID NOT WISH TO SERVE TO STEP ASIDE, AND
THEY WERE EXCUSED FROM SERVING. 

THIS AMIABLE CONCESSION IN SOME JURISDICTIONS MIGHT PRODUCE NO
DISTORTION OF THE COMPOSITION OF THE PANEL; BUT IT IS CERTAIN TO DO
JUST THAT IN THE DISTRICT OF COLUMBIA BECAUSE OF THE DUAL STANDARD AND
DUBIOUS METHOD OF JURY COMPENSATION.  THE NONGOVERNMENT JUROR RECEIVES
$4 PER DAY, FN1  WHICH UNDER PRESENT CONDITIONS IS INADEQUATE TO BE
COMPENSATORY TO NEARLY EVERY GAINFULLY EMPLOYED JUROR.  BUT THE
GOVERNMENT EMPLOYEE IS NOT PAID SPECIALLY; INSTEAD, HE IS GIVEN LEAVE
FROM HIS GOVERNMENT WORK WITH FULL PAY WHILE SERVING ON THE JURY.  FN2
THE LATTER CLASS ARE THUS INDUCED TO JURY SERVICE BY PROTECTION AGAINST
ANY FINANCIAL LOSS, WHILE THE FORMER ARE SUBJECTED TO CONSIDERABLE
DISADVANTAGE. 

THIS CONDITION MAKES IT OBVIOUS THAT, IF JURY SERVICE IS PUT ON
VIRTUALLY A VOLUNTARY BASIS AND QUALIFIED PERSONS ARE ALLOWED TO
DECLINE JURY SERVICE AT THEIR OWN OPTION, THE PANEL WILL BECOME LOADED
WITH GOVERNMENT EMPLOYEES.  IF THIS UNDUE CONCENTRATION OF SUCH JURORS
WERE ACCOMPLISHED BY ANY DEVICE WHICH EXCLUDED NONGOVERNMENT JURORS, IT
UNQUESTIONABLY WOULD BE CONDEMNED NOT ONLY BY REASON OF BUT EVEN
WITHOUT RESORT TO THE DOCTRINE THAT PREVAILED IN BALLARD V. UNITED
STATES, 329 U.S. 187; THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217; AND
GLASSER V. UNITED STATES, 315 U.S. 60. 

IS THE RESULT MORE LAWFUL WHEN IT IS ACCOMPLISHED BY LETTING ONE
CLASS EXCLUDE THEMSELVES, STIMULATED TO DO SO BY THE INCENTIVE OF SUCH
A DUAL SYSTEM OF COMPENSATION? 

OF COURSE, THE DEFENDANT AND THE PROSECUTION EACH HAVE PEREMPTORY
CHALLENGES, TEN IN THIS CASE, WHICH ENABLE EACH WITHOUT ASSIGNING ANY
CAUSE TO EXCUSE THAT NUMBER WHOM THEY DO NOT WISH TO HAVE SIT.  THIS
DEFENDANT USED MANY OF HIS CHALLENGES TO EXCUSE TALESMEN NOT EMPLOYED
BY THE GOVERNMENT AND IT IS HINTED THAT HE MAY HAVE PACKED THIS JURY
AGAINST HIMSELF.  THE LEARNED TRIAL JUDGE MADE NO SUCH SUGGESTION,
HOWEVER, AND HE WOULD BE BETTER ABLE THAN WE TO DETECT SUCH TACTICS. 
HE BLAMED THE SITUATION ON "CHANCE."  BUT THE FICKLE GODDESS IS HARDLY
TO BE BLAMED FOR THE RESULT WHEN IT CAN BE SEEN THAT THE CARDS WERE
STACKED FROM THE BEGINNING.  THIS WAS PLAINLY THE CASE WHEN WE CONTRAST
UNEQUAL ADVANTAGES WHICH THE TWO PARTIES COULD GET FROM THEIR EQUAL
NUMBERS OF CHALLENGES. 

THE GOVERNMENT WAS CONFRONTED BY NO OCCASION TO USE ANY OF ITS
PEREMPTORY CHALLENGES TO GET RID OF ITS ADVERSARY'S EMPLOYEES.  THE
DEFENDANT WAS.  BUT IF THE DEFENDANT SHOULD TRY TO USE HIS CHALLENGES
TO EXCUSE EMPLOYEES OF THE GOVERNMENT, HE WOULD DISMISS ONE ONLY TO
INCUR A PROBABILITY OF GETTING ANOTHER.  IF HE EXHAUSTED HIS CHALLENGES
IN THIS EFFORT, IT WOULD STILL BE FUTILE, FOR NO ONE CLAIMS HE HAD
ENOUGH TO DISPLACE THEM ALL.  IT MIGHT NOT BE WISE TACTICS TO SHOW
SUSPICION OR DISAPPROVAL OF A CLASS SOME OF WHOM WILL HAVE TO SIT
ANYWAY.  MOREOVER, IF HE USED HIS CHALLENGES AS FAR AS THEY WOULD GO TO
DISLODGE GOVERNMENT SERVANTS, IT WOULD LEAVE HIM HELPLESS TO CHALLENGE
ANY OF THE NONGOVERNMENT JURORS, FOR WHICH CHALLENGE HE MIGHT HAVE GOOD
REASON. 

THE DISADVANTAGE OF DEFENDANT AS TO TALESMEN FROM GOVERNMENT RANKS IS
MORE APPARENT BUT NOT MORE PREJUDICIAL THAN WITH TALESMEN FROM OTHER
WALKS OF LIFE.  WHATEVER REASON HE MAY HAVE HAD FOR EXCUSING SUCH A
ONE, THE PRICE HE WOULD PROBABLY HAVE HAD TO PAY FOR USING HIS
CHALLENGE WAS TO HAVE ONE GOVERNMENT EMPLOYEE TAKE ANOTHER'S PLACE. 
THE GOVERNMENT COULD VACATE THE SEAT OF A NONGOVERNMENT TALESMAN WITH
NO SUCH UNWELCOME RESULTS.  THE SHORT OF THE THING IS: IN NO CASE WHERE
THE COURT HAS INTERVENED TO USE ITS SUPERVISORY POWER TO REVISE FEDERAL
JURY SYSTEMS HAS THERE BEEN ANY RESULT SO CONSISTENTLY AND INEVITABLY
PREJUDICIAL TO ONE OF THE LITIGANTS AS HERE, UNDER OUR NOSES.  BALLARD
V. UNITED STATES, 329 U.S. 187; THIEL V. SOUTHERN PACIFIC, 328 U.S.
217; GLASSER V. UNITED STATES, 315 U.S. 60.  AND IN CASES WHERE A
STRONG MINORITY OF THE COURT HAS WANTED TO GO SO FAR AS TO UPSET A
STATE JURY SYSTEM, AS OFFENSIVE TO FUNDAMENTAL CONSIDERATIONS OF
JUSTICE SPELLED OUT FROM THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, THERE HAS BEEN NO SUCH BRAZEN UNFAIRNESS IN ACTUAL
PRACTICE.  MOORE V. NEW YORK, 333 U.S. 565; FAY V. NEW YORK, 332 U.S.
261. 

THE PRECEDENT OF UNITED STATES V. WOOD, 299 U.S. 123, ON WHICH THE
COURT LEANS HEAVILY, IS A WEAK CRUTCH.  THAT DECISION HELD ONLY THAT
THE ABSOLUTE DISQUALIFICATION OF ANY FEDERAL EMPLOYEE, WHICH HAD BEEN
DECLARED IN CRAWFORD V. UNITED STATES, 212 U.S. 183, COULD
CONSTITUTIONALLY BE REMOVED BY THE CONGRESS.  IN THE CASE THE COURT WAS
CONSIDERING ONLY THREE OUT OF THE TWELVE WERE BY CHANCE GOVERNMENT
BENEFICIARIES AND THE COURT WAS NOT CONFRONTED WITH SUCH A SYSTEMATIC
DISTORTION OF THE JURY AS WAS AT WORK HERE.  IT HELD THAT,
INDIVIDUALLY, THEY WERE NOT SUBJECT TO CHALLENGE FOR CAUSE; THAT IS,
THEY WERE NOT EXCUSABLE BY THE COURT MERELY BECAUSE THEY WERE
GOVERNMENT EMPLOYEES.  BUT TO HOLD THAT ONE OR A FEW GOVERNMENT
EMPLOYEES MAY SIT BY CHANCE IS NO PRECEDENT FOR HOLDING THAT THEY MAY
FILL ALL OF THE CHAIRS BY A SYSTEM OF RETIRING EVERYONE ELSE. 
FURTHERMORE, THAT OPINION EMPHASIZED THAT THE PROSECUTION IN THAT CASE
WAS FOR LARCENY FROM A PRIVATE CORPORATION.  THAT WAS NOT AN OFFENSE
AGAINST THE FEDERAL GOVERNMENT AS SUCH, EXCEPT AS IT HAS RESPONSIBILITY
FOR PROSECUTING CRIMES IN THE DISTRICT THAT IN THE STATE WOULD BE A
MATTER OF NO FEDERAL CONCERN OR EVEN JURISDICTION.  BUT THE PROSECUTION
BEFORE US IS NOT FOR AN OFFENSE OF A PRIVATE ASPECT; IT IS AN OFFENSE
AGAINST NO ONE EXCEPT FEDERAL GOVERNMENT POLICY; AND THE SECRETARY OF
THE TREASURY, IN WHOSE OWN OFFICE ONE OF THESE JURORS WAS EMPLOYED, HAS
EXCLUSIVE AND NATIONWIDE RESPONSIBILITY FOR ENFORCEMENT OF THE LAW
INVOLVED. 

IF WE ADMIT EVERY FACT, PREMISE, ARGUMENT AND CONCLUSION STATED IN
THE COURT'S OPINION, IT STILL LEAVES THIS ONE SITUATION UNEXPLAINED AND
UNJUSTIFIED.  IN FEDERAL COURTS, OVER WHICH WE HAVE SUPERVISORY POWER,
SITTING ALMOST WITHIN A STONE'S THROW OF WHERE WE SIT, A SYSTEM IS IN
OPERATION WHICH HAS PRODUCED AND IS LIKELY AGAIN AND AGAIN TO PRODUCE
WHAT DISINTERESTED PERSONS ARE LIKELY TO REGARD AS A PACKED JURY. 
APPROVAL OF IT, AFTER ALL THAT HAS BEEN WRITTEN OF LATE ON THE SUBJECT
OF JURIES, MAKES THESE LOFTY PRONOUNCEMENTS SOUND A LITTLE HOLLOW. 

I WOULD REVERSE THIS RATHER INSIGNIFICANT CONVICTION AND END THIS
SYSTEM BEFORE IT BUILDS UP INTO A SCANDALOUS NECESSITY FOR REVERSAL OF
SOME REALLY SIGNIFICANT CONVICTION. 

FN1  D.C. CODE, TITLE 11, SEC. 1513(1940). 

FN2  D.C. CODE, TITLE 11, SECS. 1421-23(1940). 

MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY
JOIN IN THIS OPINION. 
..END :






















HIROTA V. MACARTHUR, 338 U.S. 197 


ARGUED DECEMBER 16-17, 1948.  - DECIDED DECEMBER 20, 1948.  - CONCURRING
OPINION ANNOUNCED JUNE 27, 1949. 


1.  THE MILITARY TRIBUNAL SET UP IN JAPAN BY GENERAL MACARTHUR AS THE
AGENT OF THE ALLIED POWERS IS NOT A TRIBUNAL OF THE UNITED STATES AND
THE COURTS OF THE UNITED STATES HAVE NO POWER OR AUTHORITY TO REVIEW,
AFFIRM, SET ASIDE, OR ANNUL THE JUDGMENTS AND SENTENCES IMPOSED BY IT
ON THESE PETITIONERS, ALL OF WHOM ARE RESIDENTS AND CITIZENS OF JAPAN. 
P. 198. 

2.  FOR THIS REASON, THEIR MOTIONS FOR LEAVE TO FILE PETITIONS FOR
WRITS OF HABEAS CORPUS ARE DENIED.  P. 198. 

HIROTA V. MACARTHUR, GENERAL OF THE ARMY, ET AL. 

NO. 239, MISC.  MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS
CORPUS* . 

*TOGETHER WITH NO. 240, MISC., DOHIHARA V. MACARTHUR, GENERAL OF THE
ARMY, ET AL. AND NO. 248, MISC., KIDO ET AL. V. MACARTHUR, GENERAL OF
THE ARMY, ET AL., ALSO ON MOTIONS FOR LEAVE TO FILE PETITIONS FOR WRITS
OF HABEAS CORPUS. 

PER CURIAM. 

THE PETITIONERS, ALL RESIDENTS AND CITIZENS OF JAPAN, ARE BEING HELD
IN CUSTODY PURSUANT TO THE JUDGMENT OF A MILITARY TRIBUNAL IN JAPAN. 
TWO OF THE PETITIONERS HAVE BEEN SENTENCED TO DEATH, THE OTHERS TO
TERMS OF IMPRISONMENT.  THEY FILED MOTIONS IN THIS COURT FOR LEAVE TO
FILE PETITIONS FOR HABEAS CORPUS.  WE SET ALL THE MOTIONS FOR HEARING
ON THE QUESTION OF OUR POWER TO GRANT THE RELIEF PRAYED AND THAT ISSUE
HAS NOW BEEN FULLY PRESENTED AND ARGUED. 

WE ARE SATISFIED THAT THE TRIBUNAL SENTENCING THESE PETITIONERS IS
NOT A TRIBUNAL OF THE UNITED STATES.  THE UNITED STATES AND OTHER
ALLIED COUNTRIES CONQUERED AND NOW OCCUPY AND CONTROL JAPAN.  GENERAL
DOUGLAS MACARTHUR HAS BEEN SELECTED AND IS ACTING AS THE SUPREME
COMMANDER FOR THE ALLIED POWERS.  THE MILITARY TRIBUNAL SENTENCING
THESE PETITIONERS HAS BEEN SET UP BY GENERAL MACARTHUR AS THE AGENT OF
THE ALLIED POWERS. 

UNDER THE FOREGOING CIRCUMSTANCES THE COURTS OF THE UNITED STATES
HAVE NO POWER OR AUTHORITY TO REVIEW, TO AFFIRM, SET ASIDE OR ANNUL THE
JUDGMENTS AND SENTENCES IMPOSED ON THESE PETITIONERS AND FOR THIS
REASON THE MOTIONS FOR LEAVE TO FILE PETITIONS FOR WRITS OF HABEAS
CORPUS ARE DENIED. 

MR. JUSTICE MURPHY DISSENTS. 

MR. JUSTICE RUTLEDGE RESERVES DECISION AND THE ANNOUNCEMENT OF HIS
VOTE UNTIL A LATER TIME* . 

*MR. JUSTICE RUTLEDGE DIED SEPTEMBER 10, 1949, WITHOUT HAVING
ANNOUNCED HIS VOTE ON THIS CASE. 

MR. JUSTICE JACKSON TOOK NO PART IN THE FINAL DECISION ON THESE
MOTIONS. 

MR. JUSTICE DOUGLAS, CONCURRING* . 

*THESE MOTIONS WERE ARGUED DECEMBER 16 AND 17, 1948 AND THE OPINION
OF THE COURT HANDED DOWN DECEMBER 20, 1948.  I WAS NOT ABLE WITHIN THAT
SHORT TIME TO REDUCE MY VIEWS TO WRITING.  HENCE I CONCURRED IN THE
RESULT "FOR REASONS TO BE STATED IN AN OPINION." 

(REPORTER'S NOTE:  THIS OPINION WAS ANNOUNCED ON JUNE 27, 1949.) 

THESE CASES PRESENT NEW, IMPORTANT AND DIFFICULT PROBLEMS. 

PETITIONERS ARE CITIZENS OF JAPAN.  THEY WERE ALL HIGH OFFICIALS OF
THE JAPANESE GOVERNMENT OR OFFICERS OF THE JAPANESE ARMY DURING WORLD
WAR II.  THEY ARE HELD IN CUSTODY PURSUANT TO A JUDGMENT OF THE
INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST.  THEY WERE FOUND
GUILTY BY THAT TRIBUNAL OF VARIOUS SO-CALLED WAR CRIMES AGAINST
HUMANITY. 

PETITIONERS AT THE TIME OF ARGUMENT OF THESE CASES WERE CONFINED IN
TOKYO, JAPAN, UNDER THE CUSTODY OF RESPONDENT WALKER, COMMANDING
GENERAL OF THE UNITED STATES EIGHTH ARMY, WHO HELD THEM PURSUANT TO THE
ORDERS OF RESPONDENT MACARTHUR, SUPREME COMMANDER FOR THE ALLIED
POWERS.  OTHER RESPONDENTS ARE THE CHIEF OF STAFF OF THE UNITED STATES
ARMY, THE SECRETARY OF THE DEPARTMENT OF THE ARMY, AND THE SECRETARY OF
DEFENSE. 

FIRST.  THERE IS AN IMPORTANT QUESTION OF JURISDICTION THAT LIES AT
THE THRESHOLD OF THESE CASES.  RESPONDENTS CONTEND THAT THE COURT IS
WITHOUT POWER TO ISSUE A WRIT OF HABEAS CORPUS IN THESE CASES.  IT IS
ARGUED THAT THE COURT HAS NO ORIGINAL JURISDICTION AS DEFINED IN ART.
III, SEC. 2, CL. 2 OF THE CONSTITUTION, FN1  SINCE THESE ARE NOT CASES
AFFECTING AN AMBASSADOR, PUBLIC MINISTER, OR CONSUL; NOR IS A STATE A
PARTY.  AND IT IS URGED THAT APPELLATE JURISDICTION IS ABSENT (1)
BECAUSE MILITARY COMMISSIONS DO NOT EXERCISE JUDICIAL POWER WITHIN THE
MEANING OF ART. III, SEC. 2 OF THE CONSTITUTION AND HENCE ARE NOT
AGENCIES WHOSE JUDGMENTS ARE SUBJECT TO REVIEW BY THE COURT; AND (2) NO
COURT OF THE UNITED STATES TO WHICH THE POTENTIAL APPELLATE
JURISDICTION OF THIS COURT EXTENDS HAS JURISDICTION OVER THIS CAUSE. 

IT IS TO THE LATTER CONTENTION ALONE THAT CONSIDERATION NEED BE
GIVEN.  I THINK IT IS PLAIN THAT A DISTRICT COURT OF THE UNITED STATES
DOES HAVE JURISDICTION TO ENTERTAIN PETITIONS FOR HABEAS CORPUS TO
EXAMINE INTO THE CAUSE OF THE RESTRAINT OF LIBERTY OF THE PETITIONERS. 

THE QUESTION NOW PRESENTED WAS EXPRESSLY RESERVED IN AHRENS V. CLARK,
335 U.S. 188, 192, NOTE 4.  IN THAT CASE ALIENS DETAINED AT ELLIS
ISLAND SOUGHT TO CHALLENGE BY HABEAS CORPUS THE LEGALITY OF THEIR
DETENTION IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.  IT WAS
ARGUED THAT THAT COURT HAD JURISDICTION BECAUSE THE ATTORNEY GENERAL,
WHO WAS RESPONSIBLE FOR THEIR CUSTODY, WAS PRESENT THERE.  WE REJECTED
THAT VIEW, HOLDING THAT IT WAS THE DISTRICT COURT WHERE PETITIONERS
WERE CONFINED THAT HAD JURISDICTION TO ISSUE THE WRIT.  IT IS NOW
ARGUED THAT NO DISTRICT COURT CAN ACT IN THESE CASES BECAUSE IF IN ONE
CASE THEIR JURISDICTION UNDER THE HABEAS CORPUS STATUTE FN2  IS LIMITED
TO INQUIRIES INTO THE CAUSES OF RESTRAINTS OF LIBERTY OF THOSE CONFINED
WITHIN THE TERRITORIAL JURISDICTIONS OF THOSE COURTS, IT IS SO LIMITED
IN ANY OTHER. 

THAT RESULT, HOWEVER, DOES NOT FOLLOW.  IN AHRENS V. CLARK, SUPRA, WE
WERE DEALING WITH THE DISTRIBUTION OF JUDICIAL POWER AMONG THE SEVERAL
DISTRICT COURTS.  THERE WAS AN EXPLICIT LEGISLATIVE HISTORY, INDICATING
DISAPPROVAL OF A PRACTICE OF MOVING PRISONERS FROM ONE DISTRICT TO
ANOTHER IN ORDER TO GRANT THEM THE HEARINGS TO WHICH THEY ARE
ENTITLED.  WE HELD THAT THE COURT AT THE PLACE OF CONFINEMENT WAS THE
COURT TO WHICH APPLICATION MUST BE MADE.  BUT IT DOES NOT FOLLOW THAT,
WHERE THAT PLACE IS NOT WITHIN THE TERRITORIAL JURISDICTION OF ANY
DISTRICT COURT, JUDICIAL POWER TO ISSUE THE WRIT IS RENDERED IMPOTENT. 

HABEAS CORPUS IS AN HISTORIC WRIT AND ONE OF THE BASIC SAFEGUARDS OF
PERSONAL LIBERTY.  SEE BOWEN V. JOHNSTON, 306 U.S. 19, 26.  THERE IS NO
ROOM FOR NIGGARDLY RESTRICTIONS WHEN QUESTIONS RELATING TO ITS
AVAILABILITY ARE RAISED.  THE STATUTES GOVERNING ITS USE MUST BE
GENEROUSLY CONSTRUED IF THE GREAT OFFICE OF THE WRIT IS NOT TO BE
IMPAIRED.  IN AHRENS V. CLARK, SUPRA, DENIAL OF A REMEDY IN ONE
DISTRICT COURT WAS NOT A DENIAL OF A REMEDY IN ALL OF THEM.  THERE WAS
A DISTRICT COURT TO WHICH THOSE PETITIONERS COULD RESORT.  BUT IN THESE
CASES THERE IS NONE IF THE JURISDICTION OF THE DISTRICT COURT IS IN ALL
RESPECTS RESTRICTED TO CASES OF PRISONERS WHO ARE CONFINED WITHIN THEIR
GEOGRAPHICAL BOUNDARIES. 

SUCH A HOLDING WOULD HAVE GRAVE AND ALARMING CONSEQUENCES.  TODAY
JAPANESE WAR LORDS APPEAL TO THE COURT FOR APPLICATION OF AMERICAN
STANDARDS OF JUSTICE.  TOMORROW OR NEXT YEAR AN AMERICAN CITIZEN MAY
STAND CONDEMNED IN GERMANY OR JAPAN BY A MILITARY COURT OR COMMISSION. 
FN3  IF NO UNITED STATES COURT CAN INQUIRE INTO THE LAWFULNESS OF HIS
DETENTION, THE MILITARY HAVE ACQUIRED, CONTRARY TO OUR TRADITIONS (SEE
EX PARTE QUIRIN, 317 U.S. 1; IN RE YAMASHITA, 327 U.S. 1), A NEW AND
ALARMING HOLD ON US. 

I CANNOT AGREE TO SUCH A GRAVE AND STARTLING RESULT.  IT HAS NEVER
BEEN DEEMED ESSENTIAL THAT THE PRISONER IN EVERY CASE BE WITHIN THE
TERRITORIAL LIMITS OF THE DISTRICT WHERE HE SEEKS RELIEF BY WAY OF
HABEAS CORPUS.  IN EX PARTE ENDO, 323 U.S. 283, 304-306, A PRISONER HAD
BEEN REMOVED, PENDING AN APPEAL, FROM THE DISTRICT WHERE THE PETITION
HAD BEEN FILED.  WE HELD THAT THE DISTRICT COURT MIGHT ACT IF THERE WAS
A RESPONDENT WITHIN REACH OF ITS PROCESS WHO HAD CUSTODY OF THE
PRISONER.  THE AIM OF THE STATUTE IS THE PRACTICAL ADMINISTRATION OF
JUSTICE.  THE ALLOCATION OF JURISDICTION AMONG THE DISTRICT COURTS,
RECOGNIZED IN AHRENS V. CLARK, IS A PROBLEM OF JUDICIAL ADMINISTRATION,
NOT A METHOD OF CONTRACTING THE AUTHORITY OF THE COURTS SO AS TO
DELIMIT THEIR POWER TO ISSUE THE HISTORIC WRIT. 

THE PLACE TO TRY THE ISSUES OF THIS CASE IS IN THE DISTRICT WHERE
THERE IS A RESPONDENT WHO IS RESPONSIBLE FOR THE CUSTODY OF
PETITIONERS.  THAT DISTRICT IS OBVIOUSLY THE DISTRICT OF COLUMBIA. 
THAT RESULT WAS REACHED BY THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA IN EISENTRAGER V. FORRESTAL, 84 U.S. APP. D.C. 396, 174 F.2D
961.  IT HELD, IN THE CASE OF A GERMAN NATIONAL CONFINED IN GERMANY IN
THE CUSTODY OF THE UNITED STATES ARMY, THAT THE COURT HAVING
JURISDICTION OVER THOSE WHO HAVE DIRECTIVE POWER OVER THE JAILER
OUTSIDE THE UNITED STATES COULD ISSUE THE WRIT.  IN MY VIEW THAT IS THE
CORRECT RESULT.  FOR WE WOULD HAVE TO CONCLUDE THAT THE UNITED STATES
GENERALS WHO HAVE CUSTODY OF PETITIONERS ARE BIGGER THAN OUR GOVERNMENT
TO HOLD THAT THE RESPONDENT-OFFICIALS OF THE WAR DEPARTMENT HAVE NO
CONTROL OR COMMAND OVER THEM.  THAT RESULT WOULD RAISE GRAVE
CONSTITUTIONAL QUESTIONS, AS EISENTRAGER V. FORRESTAL, SUPRA,
SUGGESTS. 

IT IS THEREFORE CLEAR TO ME THAT THE DISTRICT COURT OF THE DISTRICT
OF COLUMBIA IS THE COURT TO HEAR THESE MOTIONS.  THE APPROPRIATE COURSE
WOULD BE TO REMIT THE PARTIES TO IT, RESERVING ANY FURTHER QUESTIONS
UNTIL THE CASES COME HERE BY CERTIORARI.  BUT THE COURT IS UNWILLING TO
TAKE THAT COURSE, APPARENTLY BECAUSE IT DEEMS THE CASES SO PRESSING AND
THE ISSUES SO UNSUBSTANTIAL THAT THE MOTIONS SHOULD BE SUMMARILY
DISPOSED OF. 

SECOND.  THE COURT IN DENYING LEAVE TO FILE STATES: 

"WE ARE SATISFIED THAT THE TRIBUNAL SENTENCING THESE PETITIONERS IS
NOT A TRIBUNAL OF THE UNITED STATES.  THE UNITED STATES AND OTHER
ALLIED COUNTRIES CONQUERED AND NOW OCCUPY AND CONTROL JAPAN.  GENERAL
DOUGLAS MACARTHUR HAS BEEN SELECTED AND IS ACTING AS THE SUPREME
COMMANDER FOR THE ALLIED POWERS.  THE MILITARY TRIBUNAL SENTENCING
THESE PETITIONERS HAS BEEN SET UP BY GENERAL MACARTHUR AS THE AGENT OF
THE ALLIED POWERS. 

"UNDER THE FOREGOING CIRCUMSTANCES THE COURTS OF THE UNITED STATES
HAVE NO POWER OR AUTHORITY TO REVIEW, TO AFFIRM, SET ASIDE OR ANNUL THE
JUDGMENTS AND SENTENCES IMPOSED ON THESE PETITIONERS....." 

BUT THAT STATEMENT DOES NOT IN MY OPINION ADEQUATELY ANALYZE THE
PROBLEM.  THE FORMULA WHICH IT EVOLVES TO DISPOSE OF THE CASES IS
INDEED POTENTIALLY DANGEROUS.  IT LEAVES PRACTICALLY NO ROOM FOR
JUDICIAL SCRUTINY OF THIS NEW TYPE OF MILITARY TRIBUNAL WHICH IS
EVOLVING.  IT LEAVES THE POWER OF THOSE TRIBUNALS ABSOLUTE.  PRISONERS
HELD UNDER ITS MANDATES MAY HAVE APPEAL TO THE CONSCIENCE OR MERCY OF
AN EXECUTIVE; BUT THEY APPARENTLY HAVE NO APPEAL TO LAW. 

THE FACT THAT THE TRIBUNAL HAS BEEN SET UP THE ALLIED POWERS SHOULD
NOT OF ITSELF PRECLUDE OUR INQUIRY.  OUR INQUIRY IS DIRECTED NOT TO THE
CONDUCT OF THE ALLIED POWERS BUT TO THE CONDUCT OF OUR OWN OFFICIALS. 
OUR WRIT WOULD RUN NOT TO AN OFFICIAL OF AN ALLIED POWER BUT TO OUR OWN
OFFICIAL.  WE WOULD WANT TO KNOW NOT WHAT AUTHORITY OUR ALLIES HAD TO
DO WHAT THEY DID BUT WHAT AUTHORITY OUR OFFICIALS HAD. 

IF AN AMERICAN GENERAL HOLDS A PRISONER, OUR PROCESS CAN REACH HIM
WHEREVER HE IS.  TO THAT EXTENT AT LEAST, THE CONSTITUTION FOLLOWS THE
FLAG.  IT IS NO DEFENSE FOR HIM TO SAY THAT HE ACTS FOR THE ALLIED
POWERS.  HE IS AN AMERICAN CITIZEN WHO IS PERFORMING FUNCTIONS FOR OUR
GOVERNMENT.  IT IS OUR CONSTITUTION WHICH HE SUPPORTS AND DEFENDS.  IF
THERE IS EVASION OR VIOLATION OF ITS OBLIGATIONS, IT IS NO DEFENSE THAT
HE ACTS FOR ANOTHER NATION.  THERE IS AT PRESENT NO GROUP OR
CONFEDERATION TO WHICH AN OFFICIAL OF THIS NATION OWES A HIGHER
OBLIGATION THAN HE OWES TO US. 

I ASSUME THAT WE HAVE NO AUTHORITY TO REVIEW THE JUDGMENT OF AN
INTERNATIONAL TRIBUNAL.  BUT IF AS A RESULT OF UNLAWFUL ACTION, ONE OF
OUR GENERALS HOLDS A PRISONER IN HIS CUSTODY, THE WRIT OF HABEAS CORPUS
CAN EFFECT A RELEASE FROM THAT CUSTODY.  IT IS THE HISTORIC FUNCTION OF
THE WRIT TO EXAMINE INTO THE CAUSE OF RESTRAINT OF LIBERTY.  WE SHOULD
NOT ALLOW THAT INQUIRY TO BE THWARTED MERELY BECAUSE THE JAILER ACTS
NOT ONLY FOR THE UNITED STATES BUT FOR OTHER NATIONS AS WELL. 

LET ME ILLUSTRATE THE GRAVITY AND SERIOUSNESS OF THE CONCLUSION OF
THE COURT. 

(1)  SUPPOSE AN AMERICAN CITIZEN COLLABORATED WITH PETITIONERS IN
PLOTTING A WAR AGAINST THE UNITED STATES.  THE LAWS OF THE UNITED
STATES PROVIDE SEVERE PENALTIES FOR SUCH CONDUCT.  MAY THAT CITIZEN BE
TRIED AND CONVICTED BY AN INTERNATIONAL TRIBUNAL AND HAVE NO ACCESS TO
OUR COURTS TO CHALLENGE THE LEGALITY OF THE ACTION OF OUR
REPRESENTATIVES ON IT?  MAY HE, IN THE FACE OF THE SAFEGUARDS WHICH OUR
CONSTITUTION PROVIDES EVEN FOR TRAITORS, HAVE NO PROTECTION AGAINST
AMERICAN ACTION AGAINST HIM? 

(2)  SUPPOSE AN AMERICAN CITIZEN ON A VISIT TO JAPAN DURING THE
OCCUPATION COMMITS MURDER, EMBEZZLEMENT, OR THE LIKE.  MAY HE BE TRIED
BY AN INTERNATIONAL TRIBUNAL AND HAVE NO RECOURSE TO OUR COURTS TO
CHALLENGE ITS JURISDICTION OVER HIM? 

(3)  WHAT ABOUT ANY OTHER CIVILIAN SO TRIED AND CONVICTED FOR SUCH A
CRIME COMMITTED DURING THE OCCUPATION? 

THESE ARE INCREASINGLY IMPORTANT QUESTIONS AS COLLABORATION AMONG
NATIONS AT THE INTERNATIONAL LEVEL CONTINUES.  THEY POSE QUESTIONS FOR
WHICH THERE IS NO PRECEDENT.  BUT WE SACRIFICE PRINCIPLE WHEN WE STOP
OUR INQUIRY ONCE WE ASCERTAIN THAT THE TRIBUNAL IS INTERNATIONAL. 

I CANNOT BELIEVE THAT WE WOULD ADHERE TO THAT FORMULA IF THESE
PETITIONERS WERE AMERICAN CITIZENS.  I CANNOT BELIEVE WE WOULD ADHERE
TO IT IF THIS TRIBUNAL OR SOME OTHER TRIBUNAL WERE TRYING AMERICAN
CITIZENS FOR OFFENSES COMMITTED EITHER BEFORE OR DURING THE
OCCUPATION.  IN THOSE CASES WE WOULD, I FEEL, LOOK BEYOND THE CHARACTER
OF THE TRIBUNAL TO THE PERSONS BEING TRIED AND THE OFFENSES WITH WHICH
THEY WERE CHARGED.  WE WOULD ASCERTAIN WHETHER, SO FAR AS AMERICAN
PARTICIPATION IS CONCERNED, THERE WAS AUTHORITY TO TRY THE DEFENDANTS
FOR THE PRECISE CRIMES WITH WHICH THEY ARE CHARGED.  THAT IS WHAT WE
SHOULD DO HERE.    (1)  GENERAL DOUGLAS MACARTHUR IS THE SUPREME
COMMANDER FOR THE ALLIED POWERS.  THE POTSDAM DECLARATION (JULY 26,
1945) PROVIDED FOR OCCUPATION OF JAPAN BY THE ALLIES.  THE INSTRUMENT
OF SURRENDER (SEPTEMBER 2, 1945) ACCEPTED THE TERMS OF THE POTSDAM
DECLARATION.  BY THE MOSCOW AGREEMENT (DECEMBER 27, 1945) THE SUPREME
COMMANDER WAS RECOGNIZED AS "THE SOLE EXECUTIVE AUTHORITY FOR THE
ALLIED POWERS IN JAPAN."  IT ALSO ESTABLISHED A FAR EASTERN COMMISSION
COMPOSED OF REPRESENTATIVES OF ELEVEN NATIONS.  IT WAS VESTED WITH
BROAD POWERS (A) TO FORMULATE POLICIES, PRINCIPLES AND STANDARDS BY
WHICH JAPAN WILL FULFILL ITS OBLIGATIONS UNDER THE TERMS OF SURRENDER
AND (B) TO REVIEW DIRECTIVES ISSUED TO THE SUPREME COMMANDER OR ANY
ACTION TAKEN BY HIM INVOLVING POLICY DECISIONS WITHIN ITS
JURISDICTION.  ALL DIRECTIVES EMBODYING POLICY DECISIONS OF THE
COMMISSION ARE TO BE PREPARED BY THE UNITED STATES AND IT TRANSMITS
THEM TO THE SUPREME COMMANDER.  FN4  AND THE COMMISSION IS ENJOINED TO
RESPECT "THE CHAIN OF COMMAND FROM THE UNITED STATES GOVERNMENT TO THE
SUPREME COMMANDER AND THE SUPREME COMMANDER'S COMMAND OF OCCUPATION
FORCES." 

THE WAR CRIMES POLICY OF THE ALLIED POWERS AS RESPECTS JAPAN SEEMS TO
HAVE BEEN FIRST SUGGESTED IN THE CAIRO DECLARATION  FN5  (DECEMBER 1,
1943).  THE POTSDAM DECLARATION PROMISED THAT "STERN JUSTICE" WOULD BE
METED OUT "TO ALL WAR CRIMINALS." 

THE FAR EASTERN COMMISSION ON APRIL 3, 1946, ADOPTED A POLICY
DECISION WHICH DEFINED "WAR CRIMES" AS INCLUDING "PLANNING,
PREPARATION, INITIATION OR WAGING OF A WAR OF AGGRESSION OR A WAR IN
VIOLATION OF INTERNATIONAL TREATIES, AGREEMENTS AND ASSURANCES, OR
PARTICIPATION IN A COMMON PLAN OR CONSPIRACY FOR THE ACCOMPLISHMENT OF
ANY OF THE FOREGOING."  IT PROVIDED THAT THE SUPREME COMMANDER FOR THE
ALLIED POWERS SHOULD HAVE POWER TO APPOINT SPECIAL INTERNATIONAL
MILITARY COURTS TO TRY WAR CRIMINALS.  PRIOR TO THIS TIME THE SUPREME
COMMANDER HAD CONSTITUTED A COURT FOR THAT PURPOSE AND HAD APPOINTED
JUDGES FROM VARIOUS NATIONS TO IT.  ON RECEIPT OF THE DIRECTIVE BASED
ON THE COMMISSION'S WAR CRIMES POLICY DECISION HE PROVIDED A NEW COURT
THE ONE BEFORE WHICH PETITIONERS WERE TRIED.  TO THIS COURT THE
SUPREME COMMANDER APPOINTED FROM NAMES SUBMITTED BY THE RESPECTIVE
NATIONS ELEVEN JUDGES - ONE EACH FROM THE UNITED STATES, CHINA, UNITED
KINGDOM, RUSSIA, AUSTRALIA, CANADA, FRANCE, THE NETHERLANDS, NEW
ZEALAND, INDIA, AND THE PHILIPPINES. 

SO I THINK THERE CAN BE NO SERIOUS DOUBT THAT, THOUGH THE ARRANGEMENT
IS IN MANY RESPECTS AMORPHOUS AND THOUGH THE TRIBUNAL IS DOMINATED BY
AMERICAN INFLUENCE, IT IS NONETHELESS INTERNATIONAL IN CHARACTER.  BUT
IT SHOULD BE NOTED THAT THE CHAIN OF COMMAND FROM THE UNITED STATES TO
THE SUPREME COMMANDER IS UNBROKEN.  IT IS HE WHO HAS CUSTODY OF
PETITIONERS.  IT IS THROUGH THAT CHAIN OF COMMAND THAT THE WRIT OF
HABEAS CORPUS CAN REACH THE SUPREME COMMANDER. 

(2)  THE CONSTITUTION GIVES CONGRESS THE POWER TO DEFINE AND PUNISH
"OFFENCES AGAINST THE LAW OF NATIONS  ...  "  ART. I, SEC. 8, CL. 10. 
IT IS ARGUED THAT CONGRESS HERE HAS NOT MADE AGGRESSIVE WAR A CRIME NOR
PROVIDED INDIVIDUAL PUNISHMENT FOR WAGING IT.  IT IS THEREFORE ARGUED
THAT THESE PETITIONERS CANNOT BE TRIED BY UNITED STATES OFFICIALS FOR
ANY SUCH CRIME.  WE DO NOT NEED TO CONSIDER A CASE WHERE THE DEFINITION
GIVEN BY CONGRESS CONFLICTS WITH WHAT A PRESIDENT DOES.  THERE IS NO
CONFLICT HERE.  THE GRANT OF POWER TO THE CONGRESS DOES NOT NECESSARILY
PRECLUDE EXERCISE OF AUTHORITY BY THE PRESIDENT.  THE CONSTITUTION
MAKES THE PRESIDENT THE "COMMANDER IN CHIEF OF THE ARMY AND NAVY OF THE
UNITED STATES  ...  "  ART. II, SEC. 2, CL. 1.  HIS POWER AS SUCH IS
VASTLY GREATER THAN THAT OF TROOP COMMANDER.  HE NOT ONLY HAS FULL
POWER TO REPEL AND DEFEAT THE ENEMY; HE HAS THE POWER TO OCCUPY THE
CONQUERED COUNTRY (NEW ORLEANS V. STEAMSHIP CO., 20 WALL.  387, 394)
AND TO PUNISH THOSE ENEMIES WHO VIOLATED THE LAW OF WAR.  EX PARTE
QUIRIN, SUPRA, AT 28-29; IN RE YAMASHITA, SUPRA, AT 10-11.  WE NEED NOT
CONSIDER TO WHAT EXTENT, IF ANY, THE PRESIDENT, IN PROVIDING THAT
JUSTICE BE METED OUT TO A DEFEATED ENEMY, WOULD HAVE TO FOLLOW (AS HE
DID IN EX PARTE QUIRIN, SUPRA, AND IN RE YAMASHITA, SUPRA) THE
PROCEDURE THAT CONGRESS HAD PRESCRIBED FOR SUCH CASES.  HERE THE
PRESIDENT DID NOT UTILIZE THE CONVENTIONAL MILITARY TRIBUNALS PROVIDED
FOR BY THE ARTICLES OF WAR.  HE DID NOT ACT ALONE BUT ONLY IN
CONJUNCTION WITH THE ALLIED POWERS.  THIS TRIBUNAL WAS AN INTERNATIONAL
ONE ARRANGED FOR THROUGH NEGOTIATION WITH THE ALLIED POWERS. 

THE PRESIDENT IS THE SOLE ORGAN OF THE UNITED STATES IN THE FIELD OF
FOREIGN RELATIONS.  SEE UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S.
304, 318-321.  AGREEMENTS WHICH HE HAS MADE WITH OUR ALLIES IN
FURTHERANCE OF OUR WAR EFFORTS HAVE BEEN LEGION.  WHETHER THEY ARE WISE
OR UNWISE, NECESSARY OR IMPROVIDENT, ARE POLITICAL QUESTIONS, NOT
JUSTICIABLE ONES.  THAT IS PARTICULARLY TRUE OF QUESTIONS RELATING TO
THE COMMENCEMENT AND CONDUCT OF THE WAR.  AGREEMENT WITH FOREIGN
NATIONS FOR THE PUNISHMENT OF WAR CRIMINALS, INSOFAR AS IT INVOLVES
ALIENS WHO ARE THE OFFICIALS OF THE ENEMY OR MEMBERS OF ITS ARMED
SERVICES, IS A PART OF THE PROSECUTION OF THE WAR.  IT IS A FURTHERANCE
OF THE HOSTILITIES DIRECTED TO A DILUTION OF ENEMY POWER AND INVOLVING
RETRIBUTION FOR WRONGS DONE.  IT FALLS AS CLEARLY IN THE REALM OF
POLITICAL DECISIONS AS ALL OTHER ASPECTS OF MILITARY ALLIANCES IN
FURTHERANCE OF THE COMMON OBJECTIVE OF VICTORY.  CF. GEORGIA V.
STANTON, 6 WALL.  50, 71. 

AFTER THE ESCAPE OF NAPOLEON FROM ELBA WHERE HE HAD VOLUNTARILY
RETIRED, HE WAS BY AGREEMENT AMONG THE POWERS ENTRUSTED TO THE CUSTODY
OF GREAT BRITAIN.  THEN FOLLOWED HIS BANISHMENT TO ST. HELENA.  I HAVE
NO DOUBT THAT OUR PRESIDENT COULD HAVE DONE THE SAME AS RESPECTS THESE
PETITIONERS.  OR HE COULD HAVE MADE ARRANGEMENTS WITH OTHER NATIONS FOR
THEIR CUSTODY AND DETENTION.  WHEN THE PRESIDENT MOVES TO MAKE
ARRANGEMENTS WITH OTHER NATIONS FOR THEIR TRIAL, HE ACTS IN A POLITICAL
ROLE ON A MILITARY MATTER.  HIS DISCRETION CANNOT BE REVIEWED BY THE
JUDICIARY. 

THE POLITICAL NATURE OF THE DECISION WHICH BROUGHT THESE PETITIONERS
BEFORE THE INTERNATIONAL MILITARY TRIBUNAL IS EMPHASIZED BY THE RULINGS
WHICH THAT TRIBUNAL MADE.  THE CHARTER OF THE TRIBUNAL WAS CONSTITUTED
BY AN ORDER OF THE SUPREME COMMANDER.  IT ESTABLISHED THE TRIBUNAL,
DETERMINED ITS PROCEDURE, AND DESCRIBED ITS JURISDICTION.  IT DESCRIBED
THE "CRIMES" THAT CAME WITHIN THE JURISDICTION.  OF THE TRIBUNAL  FN6
AND THE STANDARD OF RESPONSIBILITY OF THE ACCUSED.  FN7 

JUSTICE PAL OF INDIA, WHO DISSENTED FROM THE JUDGMENTS OF CONVICTION,
CLAIMED THAT THE ALLIED POWERS AS VICTORS DID NOT HAVE THE LEGAL RIGHT
UNDER INTERNATIONAL LAW TO TREAT PETITIONERS AS WAR CRIMINALS.  HE
WROTE AT LENGTH, CONTENDING THAT THE PACT OF PARIS,  FN8  46 STAT.
2343, TO WHICH JAPAN WAS A SIGNATORY, DID NOT AFFECT THE PREEXISTING
LEGAL POSITION OF WAR IN INTERNATIONAL LIFE.  FN9  HE REJECTED THE
ARGUMENT THAT INTERNATIONAL CUSTOMARY LAW HAD DEVELOPED UNDER THE PACT,
FN10  OR THAT THERE WAS INDIVIDUAL RESPONSIBILITY FOR THE WAGING OF
AGGRESSIVE WAR, EVEN ASSUMING IT TO BE A CRIME UNDER INTERNATIONAL
LAW.  FN11 

HE CALLED ON THE TRIBUNAL TO RULE ON THESE QUESTIONS.  HE STATED: 

"WE HAVE BEEN SET UP AS AN INTERNATIONAL MILITARY TRIBUNAL.  THE
CLEAR INTENTION IS THAT WE ARE TO BE 'A JUDICIAL TRIBUNAL' AND NOT 'A
MANIFESTATION OF POWER'.  THE INTENTION IS THAT WE ARE TO ACT AS A
COURT OF LAW AND ACT UNDER INTERNATIONAL LAW.  WE ARE TO FIND OUT, BY
THE APPLICATION OF THE APPROPRIATE RULES OF INTERNATIONAL LAW, WHETHER
THE ACTS CONSTITUTE ANY CRIME UNDER THE ALREADY EXISTING LAW, DEHORS
THE DECLARATION, THE AGREEMENT OR, THE CHARTER.  EVEN IF THE CHARTER,
THE AGREEMENT OR THE DECLARATION SCHEDULES THEM AS CRIMES, IT WOULD
ONLY BE THE DECISION OF THE RELEVANT AUTHORITIES THAT THEY ARE CRIMES
UNDER THE ALREADY EXISTING LAW.  BUT THE TRIBUNAL MUST COME TO ITS OWN
DECISION.  IT WAS NEVER INTENDED TO BIND THE TRIBUNAL BY THE DECISION
OF THESE BODIES, FOR OTHERWISE THE TRIBUNAL WILL NOT BE A 'JUDICIAL
TRIBUNAL' BUT A MERE TOOL FOR THE MANIFESTATION OF POWER. 

"THE SO-CALLED TRIAL HELD ACCORDING TO THE DEFINITION OF CRIME NOW
GIVEN BY THE VICTORS OBLITERATES THE CENTURIES OF CIVILIZATION WHICH
STRETCH BETWEEN US AND THE SUMMARY SLAYING OF THE DEFEATED IN A WAR.  A
TRIAL WITH LAW THUS PRESCRIBED WILL ONLY BE A SHAM EMPLOYMENT OF LEGAL
PROCESS FOR THE SATISFACTION OF A THIRST FOR REVENGE.  IT DOES NOT
CORRESPOND TO ANY IDEA OF JUSTICE.  SUCH A TRIAL MAY JUSTLY CREATE THE
FEELING THAT THE SETTING UP OF A TRIBUNAL LIKE THE PRESENT IS MUCH MORE
A POLITICAL THAN A LEGAL AFFAIR, AN ESSENTIALLY POLITICAL OBJECTIVE
HAVING THUS BEEN CLOAKED BY A JURIDICAL APPEARANCE.  FORMALIZED
VENGENCE CAN BRING ONLY AN EPHEMERAL SATISFACTION, WITH EVERY
PROBABILITY OF ULTIMATE REGRET; BUT VINDICATION OF LAW THROUGH GENUINE
LEGAL PROCESS ALONE MAY CONTRIBUTE SUBSTANTIALLY TO THE RE
ESTABLISHMENT OF ORDER AND DECENCY IN INTERNATIONAL RELATIONS." 

BUT THE TRIBUNAL, THOUGH EXPRESSING DISAGREEMENT WITH JUSTICE PAL ON
THE POINT,  FN12  DID NOT RULE ON THE QUESTION.  IT RULED THAT "THE LAW
OF THE CHARTER IS DECISIVE AND BINDING" UPON IT. IT SAID: 

"THIS IS A SPECIAL TRIBUNAL SET UP BY THE SUPREME COMMANDER UNDER
AUTHORITY CONFERRED ON HIM BY THE ALLIED POWERS.  IT DERIVES ITS
JURISDICTION FROM THE CHARTER.  IN THIS TRIAL ITS MEMBERS HAVE NO
JURISDICTION EXCEPT SUCH AS IS TO BE FOUND IN THE CHARTER.  THE ORDER
OF THE SUPREME COMMANDER, WHICH APPOINTED THE MEMBERS OF THE TRIBUNAL,
STATES:  'THE RESPONSIBILITIES, POWERS, AND DUTIES OF THE MEMBERS OF
THE TRIBUNAL ARE SET FORTH IN THE CHARTER THEREOF  ...  '  IN THE
RESULT, THE MEMBERS OF THE TRIBUNAL, BEING OTHERWISE WHOLLY WITHOUT
POWER IN RESPECT TO THE TRIAL OF THE ACCUSED, HAVE BEEN EMPOWERED BY
THE DOCUMENTS, WHICH CONSTITUTED THE TRIBUNAL AND APPOINTED THEM AS
MEMBERS, TO TRY THE ACCUSED BUT SUBJECT ALWAYS TO THE DUTY AND
RESPONSIBILITY OF APPLYING TO THE TRIAL THE LAW SET FORTH IN THE
CHARTER." 

THE PRESIDENT OF THE TRIBUNAL, SIR WILLIAM FLOOD WEBB OF AUSTRALIA,
IN A SEPARATE OPINION STATED: 

"THE CHARTER IS BINDING AS IT IS INTERNATIONAL LAW, THE POTSDAM
DECLARATION AND THE INSTRUMENT OF SURRENDER PUT INTO OPERATION BY THE
MARTIAL LAW OF THE SUPREME COMMANDER OF THE ALLIED POWERS IN OCCUPATION
OF JAPAN. 

"THE SUPREME COMMANDER STATED IN HIS PROCLAMATION OF THE TRIBUNAL AND
CHARTER - THE MARTIAL LAW REFERRED TO - THAT HE ACTED IN ORDER TO
IMPLEMENT THE TERM OF SURRENDER THAT STERN JUSTICE SHOULD BE METED OUT
TO WAR CRIMINALS. 

  .         .         .         .         . 

"UNDER INTERNATIONAL LAW BELLIGERENTS HAVE THE RIGHT TO PUNISH DURING
THE WAR SUCH WAR CRIMINALS AS FALL INTO THEIR HANDS.  THE RIGHT ACCRUES
AFTER OCCUPATION OF THE ENEMY TERRITORY.  AS A CONDITION OF THE
ARMISTICE A VICTORIOUS BELLIGERENT MAY REQUIRE THE DEFEATED STATE TO
HAND OVER PERSONS ACCUSED OF WAR CRIMES.  THE POTSDAM DECLARATION AND
THE INSTRUMENT OF SURRENDER CONTEMPLATE THE EXERCISE OF THIS RIGHT. 
BUT GUILT MUST BE ASCERTAINED BEFORE PUNISHMENT IS IMPOSED; HENCE THE
PROVISION FOR TRIALS. 

"THE OCCUPYING BELLIGERENT MAY SET UP MILITARY COURTS TO TRY PERSONS
ACCUSED OF WAR CRIMES; AND TO ASSURE A FAIR TRIAL MAY PROVIDE AMONG
OTHER THINGS FOR CIVILIAN JUDGES, THE RIGHT OF APPEAL, AND PUBLICITY. 
(OPPENHEIM ON INTERNATIONAL LAW, 6TH EDN.  VOL.  II, P. 456.)"  FN13 

THE CONCLUSION IS THEREFORE PLAIN THAT THE TOKYO TRIBUNAL ACTED AS AN
INSTRUMENT OF MILITARY POWER OF THE EXECUTIVE BRANCH OF GOVERNMENT.  IT
RESPONDED TO THE WILL OF THE SUPREME COMMANDER AS EXPRESSED IN THE
MILITARY ORDER BY WHICH HE CONSTITUTED IT.  IT TOOK ITS LAW FROM ITS
CREATOR AND DID NOT ACT AS A FREE AND INDEPENDENT TRIBUNAL TO ADJUDGE
THE RIGHTS OF PETITIONERS UNDER INTERNATIONAL LAW.  AS JUSTICE PAL
SAID, IT DID NOT THEREFORE SIT AS A JUDICIAL TRIBUNAL.  IT WAS SOLELY
AN INSTRUMENT OF POLITICAL POWER.  INSOFAR AS AMERICAN PARTICIPATION IS
CONCERNED, THERE IS NO CONSTITUTIONAL OBJECTION TO THAT ACTION.  FOR
THE CAPTURE AND CONTROL OF THOSE WHO WERE RESPONSIBLE FOR THE PEARL
HARBOR INCIDENT WAS A POLITICAL QUESTION ON WHICH THE PRESIDENT AS
COMMANDER-IN-CHIEF, AND AS SPOKESMAN FOR THE NATION IN FOREIGN AFFAIRS,
HAD THE FINAL SAY. 

FN1  ARTICLE III, SEC. 2, CL. 2 READS AS FOLLOWS: 

"IN ALL CASES AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS AND
CONSULS, AND THOSE IN WHICH A STATE SHALL BE PARTY, THE SUPREME COURT
SHALL HAVE ORIGINAL JURISDICTION.  IN ALL THE OTHER CASES BEFORE
MENTIONED, THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION, BOTH AS
TO LAW AND FACT, WITH SUCH EXCEPTIONS, AND UNDER SUCH REGULATIONS AS
THE CONGRESS SHALL MAKE." 

FN2  28 U.S.C. SEC. 2241(A) PROVIDES: 

"WRITS OF HABEAS CORPUS MAY BE GRANTED BY THE SUPREME COURT, ANY
JUSTICE THEREOF, THE DISTRICT COURTS AND ANY CIRCUIT JUDGE WITHIN THEIR
RESPECTIVE JURISDICTIONS.  THE ORDER OF A CIRCUIT JUDGE SHALL BE
ENTERED IN THE RECORDS OF THE DISTRICT COURT OF THE DISTRICT WHEREIN
THE RESTRAINT COMPLAINED OF IS HAD." 

FN3  CASES OF THIS SORT ARE BEGINNING TO APPEAR.  IN RE BUSH, 336
U.S. 971, IS SUCH A CASE.  PETITIONER WAS A CIVILIAN EMPLOYEE OF THE
WAR DEPARTMENT FROM FEB. 19, 1946 TO DEC. 28, 1947, AND WAS STATIONED
IN JAPAN FOR MOST OF THAT PERIOD.  HE TERMINATED HIS EMPLOYMENT AND
RETURNED TO THIS COUNTRY.  THEREAFTER, HE WAS EN ROUTE TO SIAM WHEN HIS
PLANE LANDED IN JAPAN.  HE WAS ARRESTED AND TRIED BY A GENERAL PROVOST
COURT SITTING IN JAPAN FOR TRADING AMERICAN GOODS TO A JAPANESE FOR
CERTAIN EMOLUMENTS.  HE WAS CONVICTED AND SENTENCED TO ONE YEAR
IMPRISONMENT AND FINED 75,000 YEN.  ON MAY 9, 1949, WE DENIED HIS
MOTION FOR LEAVE TO FILE A PETITION FOR HABEAS CORPUS "WITHOUT
PREJUDICE TO THE RIGHT TO APPLY TO ANY APPROPRIATE COURT THAT MAY HAVE
JURISDICTION."    FOR A SOMEWHAT COMPARABLE CASE FROM GERMANY SEE BIRD
V. JOHNSON, 336 U.S. 950, WHERE WE DENIED MOTIONS FOR LEAVE TO FILE
PETITIONS FOR WRITS OF HABEAS CORPUS ON APRIL 18, 1949. 

FN4  THE MOSCOW AGREEMENT ALSO PROVIDED:    "THE UNITED STATES
GOVERNMENT MAY ISSUE INTERIM DIRECTIVES TO THE SUPREME COMMANDER
PENDING ACTION BY THE COMMISSION WHENEVER URGENT MATTERS ARISE NOT
COVERED BY POLICIES ALREADY FORMULATED BY THE COMMISSION; PROVIDED THAT
ANY DIRECTIVES DEALING WITH FUNDAMENTAL CHANGES IN THE JAPANESE
CONSTITUTIONAL STRUCTURE OR IN THE REGIME OF CONTROL, OR DEALING WITH A
CHANGE IN THE JAPANESE GOVERNMENT AS A WHOLE WILL BE ISSUED ONLY
FOLLOWING CONSULTATION AND FOLLOWING THE ATTAINMENT OF AGREEMENT IN THE
FAR EASTERN COMMISSION." 

FN5  "THE THREE GREAT ALLIES ARE FIGHTING THIS WAR TO RESTRAIN AND
PUNISH THE AGGRESSION OF JAPAN." 

FN6  ARTICLE 5 PROVIDED: 

"THE TRIBUNAL SHALL HAVE THE POWER TO TRY AND PUNISH FAR EASTERN WAR
CRIMINALS WHO AS INDIVIDUALS OR AS MEMBERS OF ORGANIZATIONS ARE CHARGED
WITH OFFENSES WHICH INCLUDE CRIMES AGAINST PEACE.  THE FOLLOWING ACTS,
OR ANY OF THEM, ARE CRIMES COMING WITHIN THE JURISDICTION OF THE
TRIBUNAL FOR WHICH THERE SHALL BE INDIVIDUAL RESPONSIBILITY: 

"A.  CRIMES AGAINST PEACE:  NAMELY, THE PLANNING, PREPARATION,
INITIATION OR WAGING OF A DECLARED OR UNDECLARED WAR OF AGGRESSION, OR
A WAR IN VIOLATION OF INTERNATIONAL LAW, TREATIES, AGREEMENTS OR
ASSURANCES, OR PARTICIPATION IN A COMMON PLAN OR CONSPIRACY FOR THE
ACCOMPLISHMENT OF ANY OF THE FOREGOING; 

"B.  CONVENTIONAL WAR CRIMES:  NAMELY, VIOLATIONS OF THE LAWS OR
CUSTOMS OF WAR; 

"C.  CRIMES AGAINST HUMANITY:  NAMELY, MURDER, EXTERMINATION,
ENSLAVEMENT, DEPORTATION, AND OTHER INHUMANE ACTS COMMITTED BEFORE OR
DURING THE WAR, OR PERSECUTIONS ON POLITICAL OR RACIAL GROUNDS IN
EXECUTION OF OR IN CONNECTION WITH ANY CRIME WITHIN THE JURISDICTION OF
THE TRIBUNAL, WHETHER OR NOT IN VIOLATION OF THE DOMESTIC LAW OF THE
COUNTRY WHERE PERPETRATED.  LEADERS, ORGANIZERS, INSTIGATORS AND
ACCOMPLICES PARTICIPATING IN THE FORMULATION OR EXECUTION OF A COMMON
PLAN OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING CRIMES ARE
RESPONSIBLE FOR ALL ACTS PERFORMED BY ANY PERSON IN EXECUTION OF SUCH
PLAN." 

PETITIONERS DOHIHARA, HIROTA, KIDO, OKA, SATO, SHIMADA AND TOGO WERE
FOUND GUILTY OF WAGING A WAR OF AGGRESSION AND OF CONSPIRING TO DO SO.
PETITIONERS DOHIHARA AND HIROTA WERE FOUND GUILTY OF CONVENTIONAL WAR
CRIMES AND CRIMES AGAINST HUMANITY. 

FN7  ARTICLE 6 PROVIDED: 

"NEITHER THE OFFICIAL POSITION, AT ANY TIME, OF AN ACCUSED, NOR THE
FACT THAT AN ACCUSED ACTED PURSUANT TO ORDER OF HIS GOVERNMENT OR OF A
SUPERIOR SHALL, OF ITSELF, BE SUFFICIENT TO FREE SUCH ACCUSED FROM
RESPONSIBILITY FOR ANY CRIME WITH WHICH HE IS CHARGED, BUT SUCH
CIRCUMSTANCES MAY BE CONSIDERED IN MITIGATION OF PUNISHMENT IF THE
TRIBUNAL DETERMINES THAT JUSTICE SO REQUIRES." 

FN8  THIS TREATY PROVIDED IN PART: 

"PERSUADED THAT THE TIME HAS COME WHEN A FRANK RENUNCIATION OF WAR AS
AN INSTRUMENT OF NATIONAL POLICY SHOULD BE MADE TO THE END THAT THE
PEACEFUL AND FRIENDLY RELATIONS NOW EXISTING BETWEEN THEIR PEOPLES MAY
BE PERPETUATED; 

     .         .         .         .         .

                              "ARTICLE I 

"THE HIGH CONTRACTING PARTIES SOLEMNLY DECLARE IN THE NAMES OF THEIR
RESPECTIVE PEOPLES THAT THEY CONDEMN RECOURSE TO WAR FOR THE SOLUTION
OF INTERNATIONAL CONTROVERSIES, AND RENOUNCE IT AS AN INSTRUMENT OF
NATIONAL POLICY IN THEIR RELATIONS WITH ONE ANOTHER. 

                             "ARTICLE II 

"THE HIGH CONTRACTING PARTIES AGREE THAT THE SETTLEMENT OR SOLUTION
OF ALL DISPUTES OR CONFLICTS OF WHATEVER NATURE OR OF WHATEVER ORIGIN
THEY MAY BE, WHICH MAY ARISE AMONG THEM, SHALL NEVER BE SOUGHT EXCEPT
BY PACIFIC MEANS." 

SEE MILLER, THE PEACE PACT OF PARIS (1928). 

FN9  FOR DISCUSSIONS PRO AND CON ON THIS ISSUE SEE GLUECK, WAR
CRIMINALS (1944); GLUECK, THE NUREMBERG TRIAL AND AGGRESSIVE WAR
(1946). 

FN10  IN THIS CONNECTION HE SAID: 

"I MAY MENTION HERE IN PASSING THAT WITHIN FOUR YEARS OF THE
CONCLUSION OF THE PACT THERE OCCURRED THREE INSTANCES OF RECOURSE TO
FORCE ON A LARGE SCALE ON THE PART OF THE SIGNATORIES OF THE PACT.  IN
1929 SOVIET RUSSIA CONDUCTED HOSTILITIES AGAINST CHINA IN CONNECTION
WITH THE DISPUTE CONCERNING THE CHINESE EASTERN RAILWAY.  THE
OCCUPATION OF MANCHURIA BY JAPAN IN 1931 AND 1932 FOLLOWED.  THEN THERE
WAS THE INVASION OF THE COLOMBIAN PROVINCE OF LETICIA BY PERU IN 1932. 
THEREAFTER, WE HAD THE INVASION OF ABYSSINIA BY ITALY IN 1935 AND OF
FINLAND BY RUSSIA IN 1939.  OF COURSE THERE WAS ALSO THE INVASION OF
CHINA BY JAPAN IN 1937." 

SOME OF THE PETITIONERS, NOTABLY DOHIHARA, HIROTA, KIDO AND TOGO,
WERE FOUND GUILTY ON CHARGES WHICH INVOLVED WAGING OF AGGRESSIVE WAR
PRIOR TO PEARL HARBOR, E.G., IN CONNECTION WITH THE MANCHURIAN
EPISODE. 

FN11  HE WENT SO FAR AS TO SAY: 

"IN MY VIEW IF THE ALLEGED ACTS DO NOT CONSTITUTE ANY CRIME UNDER THE
EXISTING INTERNATIONAL LAW, THE TRIAL AND PUNISHMENT OF THE AUTHORS
THEREOF WITH A NEW DEFINITION OF CRIME GIVEN BY THE VICTOR WOULD MAKE
IT A 'WAR CRIME' ON HIS PART.  THE PRISONERS ARE TO BE DEALT WITH
ACCORDING TO THE RULES AND REGULATIONS OF INTERNATIONAL LAW AND NOT
ACCORDING TO WHAT THE VICTOR CHOOSES TO NAME AS INTERNATIONAL LAW." 

FN12  IT STATED IN THIS CONNECTION THAT IT WAS IN COMPLETE ACCORD
WITH THE FOLLOWING PASSAGES FROM THE OPINION OF THE NUREMBERG TRIBUNAL,
NAZI CONSPIRACY AND AGGRESSION, OPINION AND JUDGMENT (1947), PP. 48,
50, 53, 49, 53-54: 

"THE CHARTER IS NOT AN ARBITRARY EXERCISE OF POWER ON THE PART OF THE
VICTORIOUS NATIONS, BUT IN THE VIEW OF THE TRIBUNAL, AS WILL BE SHOWN,
IT IS THE EXPRESSION OF INTERNATIONAL LAW EXISTING AT THE TIME OF ITS
CREATION; 

     .         .         .         .         . 

"THE QUESTION IS, WHAT WAS THE LEGAL EFFECT OF THIS PACT?  (PACT OF
PARIS.)  THE NATIONS WHO SIGNED THE PACT OR ADHERED TO IT
UNCONDITIONALLY CONDEMNED RECOURSE TO WAR FOR THE FUTURE AS AN
INSTRUMENT OF POLICY, AND EXPRESSLY RENOUNCED IT.  AFTER THE SIGNING OF
THE PACT, ANY NATION RESORTING TO WAR AS AN INSTRUMENT OF NATIONAL
POLICY BREAKS THE PACT.  IN THE OPINION OF THE TRIBUNAL, THE SOLEMN
RENUNCIATION OF WAR AS AN INSTRUMENT OF NATIONAL POLICY NECESSARILY
INVOLVES THE PROPOSITION THAT SUCH A WAR IS ILLEGAL IN INTERNATIONAL
LAW; AND THAT THOSE WHO PLAN AND WAGE SUCH A WAR, WITH ITS INEVITABLE
AND TERRIBLE CONSEQUENCES, ARE COMMITTING A CRIME IN SO DOING. 

     .         .         .         .         . 

"THE PRINCIPLE OF INTERNATIONAL LAW, WHICH UNDER CERTAIN
CIRCUMSTANCES, PROTECTS THE REPRESENTATIVES OF A STATE, CANNOT BE
APPLIED TO ACTS WHICH ARE CONDEMNED AS CRIMINAL BY INTERNATIONAL LAW. 
THE AUTHORS OF THESE ACTS CANNOT SHELTER THEMSELVES BEHIND THEIR
OFFICIAL POSITION IN ORDER TO BE FREED FROM PUNISHMENT IN APPROPRIATE
PROCEEDINGS. 

.         .         .         .         . 

"  ...  THE MAXIM NULLUM CRIMEN SINE LEGE IS NOT A LIMITATION OF
SOVEREIGNTY, BUT IS IN GENERAL A PRINCIPLE OF JUSTICE.  TO ASSERT THAT
IT IS UNJUST TO PUNISH THOSE WHO IN DEFIANCE OF TREATIES AND ASSURANCES
HAVE ATTACKED NEIGHBORING STATES WITHOUT WARNING IS OBVIOUSLY UNTRUE,
FOR IN SUCH CIRCUMSTANCES THE ATTACKER MUST KNOW THAT HE IS DOING
WRONG, AND SO FAR FROM IT BEING UNJUST TO PUNISH HIM, IT WOULD BE
UNJUST IF HIS WRONG WERE ALLOWED TO GO UNPUNISHED. 

     .         .         .         .         . 

"THE CHARTER SPECIFICALLY PROVIDES IN ARTICLE 8: 

"'THE FACT THAT THE DEFENDANT ACTED PURSUANT TO ORDER OF HIS
GOVERNMENT OR OF A SUPERIOR SHALL NOT FREE HIM FROM RESPONSIBILITY, BUT
MAY BE CONSIDERED IN MITIGATION OF PUNISHMENT.' 

"THE PROVISIONS OF THIS ARTICLE ARE IN CONFORMITY WITH THE LAW OF ALL
NATIONS.  ...  THE TRUE TEST, WHICH IS FOUND IN VARYING DEGREES IN THE
CRIMINAL LAW OF MOST NATIONS, IS NOT THE EXISTENCE OF THE ORDER, BUT
WHETHER MORAL CHOICE WAS IN FACT POSSIBLE." 

FN13  HE WENT ON TO STATE HIS VIEW THAT THE WAGING OF AGGRESSIVE WAR
WAS A CRIME UNDER INTERNATIONAL LAW AND THAT INDIVIDUAL RESPONSIBILITY
ATTACHED THERETO.  JUSTICE JARANILLA OF THE PHILIPPINES FILED A
SEPARATE CONCURRING OPINION TO THE SAME EFFECT.  JUSTICE BERNARD OF
FRANCE, THOUGH DISSENTING FROM THE MAJORITY BECAUSE OF CERTAIN RULINGS
ON VICARIOUS CRIMINAL RESPONSIBILITY AND BECAUSE HE THOUGHT THE TRIAL
WAS NOT FAIR, AGREED THAT THE WAGING OF AGGRESSIVE WAR WAS A CRIME. 
..END :







UPSHAW V. UNITED STATES, 335 U.S. 410 


NO. 98.  ARGUED NOVEMBER 12, 1948.  - DECIDED DECEMBER 13, 1948.  83
U.S. APP. D.C. 207, 168 F.2D 167, REVERSED. 


ARRESTED ON SUSPICION WITHOUT A WARRANT, PETITIONER CONFESSED 30 HOURS
LATER, WHILE BEING HELD WITHOUT HAVING BEEN TAKEN BEFORE A COMMITTING
MAGISTRATE AS REQUIRED BY RULE 5(A) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE.  THE ONLY REASON GIVEN BY THE ARRESTING OFFICER FOR THE
DELAY IN HIS ARRAIGNMENT WAS THAT THERE WAS NOT ENOUGH EVIDENCE TO HOLD
HIM AND THE POLICE WISHED TO QUESTION HIM FURTHER.  AT HIS TRIAL IN A
FEDERAL COURT, THE CONFESSION WAS ADMITTED IN EVIDENCE OVER HIS
OBJECTION AND THE JURY FOUND THAT IT WAS VOLUNTARY.  HELD:  THE
CONFESSION WAS INADMISSIBLE AND A CONVICTION BASED THEREON IS
REVERSED.  MCNABB V. UNITED STATES, 318 U.S. 332, FOLLOWED.  UNITED
STATES V. MITCHELL, 322 U.S. 65, DISTINGUISHED.  PP. 410-414. 

UPSHAW V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PETITIONER WAS CONVICTED OF GRAND LARCENY IN A FEDERAL DISTRICT
COURT.  THE COURT OF APPEALS AFFIRMED.  83 U.S. APP. D.C. 207, 168 F.2D
167.  THIS COURT GRANTED CERTIORARI.  334 U.S. 842.  REVERSED, P. 414. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED OF GRAND LARCENY IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AND SENTENCED TO SERVE
SIXTEEN MONTHS TO FOUR YEARS IN PRISON.  PRE-TRIAL CONFESSIONS OF GUILT
WITHOUT WHICH PETITIONER COULD NOT HAVE BEEN CONVICTED  FN1  WERE
ADMITTED IN EVIDENCE AGAINST HIS OBJECTION THAT THEY HAD BEEN ILLEGALLY
OBTAINED.  THE CONFESSIONS HAD BEEN MADE DURING A 30-HOUR PERIOD WHILE
PETITIONER WAS HELD A PRISONER AFTER THE POLICE HAD ARRESTED HIM ON
SUSPICION AND WITHOUT A WARRANT. 

PETITIONER'S OBJECTION TO THE ADMISSIBILITY OF THE CONFESSIONS RESTED
ON RULE 5(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE AND OUR HOLDING
IN MCNABB V. UNITED STATES, 318 U.S. 332.  RULE 5(A) PROVIDES THAT "AN
OFFICER MAKING AN ARREST  ...  SHALL TAKE THE ARRESTED PERSON WITHOUT
UNNECESSARY DELAY BEFORE THE NEAREST AVAILABLE" COMMITTING MAGISTRATE
AND WHEN THE ARRESTED PERSON APPEARS BEFORE THE MAGISTRATE "A COMPLAINT
SHALL BE FILED FORTHWITH."  PETITIONER CONTENDED THAT THE OFFICERS HAD
VIOLATED THIS RULE IN DETAINING HIM AS THEY DID WITHOUT TAKING HIM
BEFORE A COMMITTING MAGISTRATE.  IN THE MCNABB CASE WE HELD THAT
CONFESSIONS HAD BEEN IMPROPERLY ADMITTED WHERE THEY WERE THE PLAIN
RESULT OF HOLDING AND INTERROGATING PERSONS WITHOUT CARRYING THEM
"FORTHWITH" BEFORE A COMMITTING MAGISTRATE AS THE LAW COMMANDS. 

IN THIS CASE THE DISTRICT COURT THOUGHT THAT THE MCNABB RULING DID
NOT APPLY BECAUSE THE DETENTION OF PETITIONER "WAS NOT UNREASONABLE
UNDER THE CIRCUMSTANCES AS A MATTER OF LAW."  CONSEQUENTLY, THAT COURT
HELD THE CONFESSIONS ADMISSIBLE.  ON APPEAL TO THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA, THE UNITED STATES ATTORNEY AND
HIS ASSISTANTS DETAILED THE CIRCUMSTANCES OF PETITIONER'S ARREST AND
DETENTION AND CONFESSED ERROR.  THEY CONCLUDED FROM THESE DETAILED
CIRCUMSTANCES THAT THE "DELAY" IN CARRYING PETITIONER BEFORE A
COMMITTING MAGISTRATE "WAS UNREASONABLE AND THE PURPOSE OF IT, AS
STATED BY THE OFFICERS THEMSELVES, WAS ONLY TO FURNISH AN OPPORTUNITY
FOR FURTHER INTERROGATION."  UNDER THESE CIRCUMSTANCES, THE DISTRICT
ATTORNEY THOUGHT THAT THE MCNABB RULE MADE THE CONFESSIONS INADMISSIBLE
WITHOUT REGARD TO WHETHER THEY WERE "VOLUNTARY" IN THE LEGAL SENSE. 
THE DELAY IN TAKING PETITIONER BEFORE A JUDICIAL OFFICER WAS THOUGHT,
IN THE WORDS OF THE DISTRICT ATTORNEY, TO HAVE BEEN "FOR PURPOSES
INIMICAL TO THE LETTER AND SPIRIT OF THE RULE REQUIRING PROMPT
ARRAIGNMENT." 

THE COURT OF APPEALS REJECTED THIS CONFESSION OF ERROR, ONE JUDGE
DISSENTING.  83 U.S. APP. D.C. 207, 168 F.2D 167.  IT READ THE MCNABB
CASE AS EXPLAINED IN UNITED STATES V. MITCHELL, 322 U.S. 65, AS HOLDING
THAT "A CONFESSION VOLUNTARILY GIVEN IS ADMISSIBLE IN EVIDENCE" WHILE
CONVERSELY "A CONFESSION INVOLUNTARILY MADE IS INADMISSIBLE."  83 U.S.
APP. D.C. 207, 168 F.2D 167.  THAT COURT THOUGHT THE MCNABB CASE DID NO
MORE THAN EXTEND THE MEANING OF "INVOLUNTARY" CONFESSIONS TO PROSCRIBE
CONFESSIONS INDUCED BY PSYCHOLOGICAL COERCION AS WELL AS THOSE BROUGHT
ABOUT BY PHYSICAL BRUTALITY.  FINDING NO PSYCHOLOGICAL COERCION IN THE
FACTS OF THIS CASE, THE COURT CONCLUDED THAT THE CONFESSIONS WERE NOT
THE "FRUIT OF THE ILLEGAL DETENTION."  THE COURT ALSO LAID STRESS ON
THE FACT THAT THE PETITIONER'S DETENTION UNLIKE MCNABB'S, "WAS NOT
AGGRAVATED BY CONTINUOUS QUESTIONING FOR MANY HOURS BY NUMEROUS
OFFICERS." 

WE HOLD THAT THIS CASE FALLS SQUARELY WITHIN THE MCNABB RULING AND IS
NOT TAKEN OUT OF IT BY WHAT WAS DECIDED IN THE MITCHELL CASE.  IN THE
MCNABB CASE WE HELD THAT THE PLAIN PURPOSE OF THE REQUIREMENT THAT
PRISONERS SHOULD PROMPTLY BE TAKEN BEFORE COMMITTING MAGISTRATES WAS TO
CHECK RESORT BY OFFICERS TO "SECRET INTERROGATION OF PERSONS ACCUSED OF
CRIME."  WE THEN POINTED OUT THE CIRCUMSTANCES UNDER WHICH PETITIONERS
WERE INTERROGATED AND CONFESSED.  THIS WAS DONE TO SHOW THAT THE RECORD
LEFT NO DOUBT THAT THE MCNABBS WERE NOT PROMPTLY TAKEN BEFORE A
JUDICIAL OFFICER AS THE LAW REQUIRED, BUT INSTEAD WERE HELD FOR SECRET
QUESTIONING, AND "THAT THE QUESTIONING OF THE PETITIONERS TOOK PLACE
WHILE THEY WERE IN THE CUSTODY OF THE ARRESTING OFFICERS AND BEFORE ANY
ORDER OF COMMITMENT WAS MADE."  THE MCNABB CONFESSIONS WERE THUS HELD
INADMISSIBLE BECAUSE THE MCNABBS WERE QUESTIONED WHILE HELD IN "PLAIN
DISREGARD OF THE DUTY ENJOINED BY CONGRESS UPON FEDERAL LAW OFFICERS"
PROMPTLY TO TAKE THEM BEFORE A JUDICIAL OFFICER.  IN THE MCNABB CASE
THERE WERE CONFESSIONS "INDUCED BY ILLEGAL DETENTION," UNITED STATES V.
MITCHELL, SUPRA AT 70, A FACT WHICH THIS COURT FOUND DID NOT EXIST IN
THE MITCHELL CASE. 

IN THE MITCHELL CASE ALTHOUGH THE DEFENDANT WAS ILLEGALLY HELD EIGHT
DAYS, THE COURT ACCEPTED THE RECORD AS SHOWING THAT MITCHELL PROMPTLY
AND SPONTANEOUSLY ADMITTED HIS GUILT WITHIN A FEW MINUTES AFTER HIS
ARRIVAL AT THE POLICE STATION.  MITCHELL'S CONFESSIONS THEREFORE WERE
FOUND TO HAVE BEEN MADE BEFORE ANY ILLEGAL DETENTION HAD OCCURRED. 
THIS COURT THEN STATED IN THE MITCHELL OPINION THAT "THE ILLEGALITY OF
MITCHELL'S DETENTION DOES NOT RETROACTIVELY CHANGE THE CIRCUMSTANCES
UNDER WHICH HE MADE THE DISCLOSURES."  THUS THE HOLDING IN THE MITCHELL
CASE WAS ONLY THAT MITCHELL'S SUBSEQUENT ILLEGAL DETENTION DID NOT
RENDER INADMISSIBLE HIS PRIOR CONFESSIONS.  THEY WERE HELD NOT TO
INVOLVE "USE BY THE GOVERNMENT OF THE FRUITS OF WRONGDOING BY ITS
OFFICERS."  THE MITCHELL CASE AT P. 68, HOWEVER, REAFFIRMS THE MCNABB
RULE THAT A CONFESSION IS INADMISSIBLE IF MADE DURING ILLEGAL DETENTION
DUE TO FAILURE PROMPTLY TO CARRY A PRISONER BEFORE A COMMITTING
MAGISTRATE, WHETHER OR NOT THE "CONFESSION IS THE RESULT OF TORTURE,
PHYSICAL OR PSYCHOLOGICAL  ...  " 

IN THIS CASE WE ARE LEFT IN NO DOUBT AS TO WHY THIS PETITIONER WAS
NOT BROUGHT PROMPTLY BEFORE A COMMITTING MAGISTRATE.  THE ARRESTING
OFFICER HIMSELF STATED THAT PETITIONER WAS NOT CARRIED BEFORE A
MAGISTRATE ON FRIDAY OR SATURDAY MORNING AFTER HIS ARREST ON FRIDAY AT
2 A.M., BECAUSE THE OFFICER THOUGHT THERE WAS NOT "A SUFFICIENT CASE"
FOR THE COURT TO HOLD HIM, ADDING THAT EVEN "IF THE POLICE COURT DID
HOLD HIM WE WOULD LOSE CUSTODY OF HIM AND I NO LONGER WOULD BE ABLE TO
QUESTION HIM."  THUS THE ARRESTING OFFICER IN EFFECT CONCEDED THAT THE
CONFESSIONS HERE WERE "THE FRUITS OF WRONGDOING" BY THE POLICE
OFFICERS.  HE CONCEDED MORE:  HE ADMITTED THAT PETITIONER WAS ILLEGALLY
DETAINED FOR AT LEAST THIRTY HOURS FOR THE VERY PURPOSE OF SECURING
THESE CHALLENGED CONFESSIONS.  HE THEREBY REFUTES ANY POSSIBILITY OF AN
ARGUMENT THAT AFTER ARREST HE WAS CARRIED BEFORE A MAGISTRATE "WITHOUT
UNNECESSARY DELAY." 

THE ARGUMENT WAS MADE TO THE TRIAL COURT THAT THIS METHOD OF
ARRESTING, HOLDING, AND QUESTIONING PEOPLE ON MERE SUSPICION WAS IN
ACCORDANCE WITH THE "USUAL POLICE PROCEDURE OF QUESTIONING A SUSPECT
...  "  HOWEVER USUAL THIS PRACTICE, IT IS IN VIOLATION OF LAW, AND
CONFESSIONS THUS OBTAINED ARE INADMISSIBLE UNDER THE MCNABB RULE.  WE
ADHERE TO THAT RULE.  FN2  REVERSED. 

FN1  AFTER THE EVIDENCE WAS ALL IN, THE TRIAL JUDGE STATED THAT
WITHOUT THE CONFESSIONS THERE WAS "NOTHING LEFT IN THE CASE."  THE
TRIAL JUDGE INSTRUCTED THE JURY TO ACQUIT IF THEY FOUND THAT THE
PETITIONER HAD NOT CONFESSED "VOLUNTARILY BUT BECAUSE HE WAS BEATEN." 
ON THIS ISSUE OF PHYSICAL VIOLENCE THE JURY FOUND AGAINST THE
PETITIONER, AND THEREFORE THIS ISSUE IS NOT INVOLVED IN THIS CASE. 

FN2  OUR HOLDING IS NOT PLACED ON CONSTITUTIONAL GROUNDS.  SINCE THE
MCNABB RULE BARS ADMISSION OF CONFESSIONS WE NEED NOT AND DO NOT
CONSIDER WHETHER THEIR ADMISSION WAS A VIOLATION OF ANY OF THE
PROVISIONS OF THE FIFTH AMENDMENT. 

MR. JUSTICE REED, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE JACKSON
AND MR. JUSTICE BURTON JOIN, DISSENTING. 

WHEN NOT INCONSISTENT WITH A STATUTE, OR THE CONSTITUTION, THERE IS
NO DOUBT OF THE POWER OF THIS COURT TO INSTITUTE, ON ITS OWN
INITIATIVE, REFORMS IN THE FEDERAL PRACTICE AS TO THE ADMISSIBILITY OF
EVIDENCE IN CRIMINAL TRIALS IN FEDERAL COURTS.  FN1  THIS POWER OF
REFORM, WHICH EXISTED AT THE TIME, MARCH 1, 1943, MCNABB V. UNITED
STATES, 318 U.S. 332, WAS DECIDED, IS NOT, I BELIEVE, RESTRICTED BY THE
LANGUAGE OF RULE 26 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE,
EFFECTIVE MARCH 21, 1946.  FEDERAL RULE OF CRIMINAL PROCEDURE NO. 59;
91 CONG. REC. 12,545.  THE ADMISSIBILITY OF EVIDENCE, LIKE THE
COMPETENCY OF WITNESSES, IS "GOVERNED BY COMMON LAW PRINCIPLES AS
INTERPRETED AND APPLIED BY THE FEDERAL COURTS IN THE LIGHT OF REASON
AND EXPERIENCE."  WOLFLE V. UNITED STATES, 291 U.S. 7, 12.  FN2  WHILE
JUDICIAL INNOVATIONS EXPLICITLY EXPANDING OR CONTRACTING ADMISSIBILITY
OF EVIDENCE ARE RARE, THERE HAVE BEEN SUFFICIENT OCCASIONS TO ESTABLISH
BY PRECEDENT AND LEGISLATIVE ACCEPTANCE THAT THE POWER EXISTS.  MCNABB
V. UNITED STATES, SUPRA, 341.  FN3 

SUCH POWER SHOULD BE USED TO CHANGE THE ESTABLISHED RULES OF
EVIDENCE, HOWEVER, ONLY WHEN "FUNDAMENTALLY ALTERED CONDITIONS," NOTE
2, SUPRA, CALL FOR SUCH A CHANGE IN THE INTERESTS OF JUSTICE. 
OTHERWISE THE BAD RESULTS FROM A CHANGE OF WELL-ESTABLISHED RULES ARE
QUITE LIKELY TO OUTWEIGH THE GOOD.  THE LACK OF ANY NECESSITY FOR
CHANGING THE RULES OF EVIDENCE TO PROTECT AN ACCUSED LED ME TO DISSENT
IN THE MCNABB CASE, A MURDER CASE WHERE AN ASSUMED FAILURE TO COMMIT
THE PRISONERS APPARENTLY WAS RELIED UPON AS A PARTIAL BASIS FOR DENYING
ADMISSIBILITY TO CERTAIN CONFESSIONS. 

MY OBJECTION TO THIS COURT'S ACTION OF TODAY IN WHAT SEEMS TO ME AN
EXTENSION OF THE SCOPE OF NONADMISSIBILITY OF CONFESSIONS IN THE
FEDERAL COURTS IS NOT TO ITS POWER SO TO ACT BUT TO THE ADVISABILITY OF
SUCH AN ADDITIONAL STEP.  UNLESS CONGRESS OR A MAJORITY OF THIS COURT
MODIFIES THE MCNABB RULE, I FEEL BOUND TO FOLLOW MY UNDERSTANDING OF
ITS MEANING IN SIMILAR CASES THAT MAY ARISE, BUT THAT DUTY DOES NOT
IMPOSE UPON ME THE OBLIGATION TO ACCEPT THIS RULING AS TO UPSHAW WHICH
SEEMS TO ME TO COMPOUND CERTAIN UNFORTUNATE RESULTS OF THE MCNABB
DECISION BY EXTENDING IT TO CIRCUMSTANCES BEYOND THE SCOPE OF THE
MCNABB RULING.  THIS ATTITUDE LEADS ME (I) TO ANALYZE THE MCNABB CASE
AND ITS OFFSPRING, (II) TO POINT OUT WHY I THINK THE PRESENT DECISION
GOES BEYOND THE HOLDING IN MCNABB AND (III) TO POINT OUT WHY MCNABB
SHOULD NOT BE EXTENDED. 

THE JUDICIAL APPROACH TO THE PROBLEM, OF COURSE, MUST BE IN A SPIRIT
OF COOPERATION WITH THE POLICE OFFICIALS IN THE ADMINISTRATION OF
JUSTICE.  THEY ARE DIRECTLY CHARGED WITH THE RESPONSIBILITY FOR THE
MAINTENANCE OF LAW AND ORDER AND ARE UNDER THE SAME OBLIGATION AS THE
JUDICIAL ARM TO DISCHARGE THEIR DUTIES IN A MANNER CONSISTENT WITH THE
CONSTITUTION AND STATUTES.  THE PREVENTION AND PUNISHMENT OF CRIME IS A
DIFFICULT AND DANGEROUS TASK, FOR THE MOST PART PERFORMED BY SECURITY
AND PROSECUTING PERSONNEL IN A SPIRIT OF PUBLIC SERVICE TO THE
COMMUNITY.  ONLY BY THE MAINTENANCE OF ORDER MAY THE RIGHTS OF THE
CRIMINAL AND THE LAW-ABIDING ELEMENTS OF THE POPULATION BE PROTECTED. 
AS HAS BEEN POINTED OUT BY THIS COURT IN THE MCNABB AND MITCHELL CASES,
UNITED STATES V. MITCHELL, 322 U.S. 65, THERE IS NO CONSTITUTIONAL
PROBLEM INVOLVED IN DECIDING WHETHER A VOLUNTARY CONFESSION GIVEN BY A
PRISONER PRIOR TO COMMITMENT BY A MAGISTRATE SHOULD BE ADMITTED IN
EVIDENCE.  A PRISONER'S CONSTITUTIONAL RIGHTS AGAINST SELF
INCRIMINATION OR TO DUE PROCESS ARE PROTECTED BY THE RULE THAT NO
INVOLUNTARY CONFESSION MAY BE ADMITTED.  MCNABB V. UNITED STATES,
SUPRA, PP. 339-40 AND CASES CITED; HALEY V. OHIO, 332 U.S. 596;
MALINSKI V. NEW YORK, 324 U.S. 401; ASHCRAFT V. TENNESSEE, 322 U.S.
143. 

                   I. 

OUR FIRST INQUIRY, THEN, IS AS TO THE LEGAL DOCTRINE BEHIND THE
MCNABB DECISION. 

A. WERE THE MCNABB CONFESSIONS BARRED AS A PUNISHMENT OR PENALTY
AGAINST THE POLICE OFFICERS BECAUSE THEY WERE THOUGHT TO HAVE DISOBEYED
THE COMMAND OF A STATUTE? 

B. WERE THEY BARRED BECAUSE UNLAWFUL IMPRISONMENT IS SO APT TO BE
FOLLOWED BY AN INVOLUNTARY CONFESSION AS TO JUSTIFY THE EXCLUSION OF
ALL CONFESSIONS RECEIVED BEFORE JUDICIAL COMMITMENT AFTER A PRISONER IS
KEPT IN CUSTODY MORE THAN A REASONABLE TIME WITHOUT BEING TAKEN BEFORE
A COMMITTING MAGISTRATE? 

C. WERE THEY BARRED BECAUSE THE PARTICULAR CIRCUMSTANCES UNDER WHICH
THE CONFESSIONS WERE MADE WERE SO LIKELY TO PRODUCE INVOLUNTARY
CONFESSIONS AS TO JUSTIFY EXCLUSION? 

A. AS THE MCNABB DECISION WAS A SUDDEN DEPARTURE FROM THE FORMER
FEDERAL RULE AS TO THE ADMISSIBILITY OF CONFESSIONS  FN4  INITIATED BY
THE COURT, WITHOUT THE BENEFIT OF BRIEF OR ARGUMENT AND WITHOUT
KNOWLEDGE OF THE ACTUAL FACTS AS TO COMMITMENT,  FN5  IT CAN HARDLY BE
EXPECTED THAT IT COULD HAVE THE DESIRABLE EXPLICITNESS OF A TRITE RULE
OF EVIDENCE.  CONSEQUENTLY CONFUSION IMMEDIATELY AROSE AS TO ITS
MEANING.  THE DISSENT INTERPRETED THE OPINION AS A DIRECTION TO EXCLUDE
THE CONFESSIONS "BECAUSE IN ADDITION TO QUESTIONING THE PETITIONERS,
THE ARRESTING OFFICERS FAILED PROMPTLY TO TAKE THEM BEFORE A COMMITTING
MAGISTRATE."  IT CONCLUDED:  "THE OFFICERS OF THE ALCOHOL TAX UNIT
SHOULD NOT BE DISCIPLINED BY OVERTURNING THIS CONVICTION."  MCNABB V.
UNITED STATES, SUPRA, P. 349.  SOME COURTS THOUGHT THAT ANY CONFESSION
OBTAINED BEFORE COMMITMENT WAS INADMISSIBLE.  UNITED STATES V. HOFFMAN,
137 F.2D 416, 421; MITCHELL V. UNITED STATES, 78 U.S. APP. D.C. 171,
172, 138 F.2D 426, 427.  OTHERS HAVE UNDERSTOOD THE CASE TO DETERMINE
ADMISSIBILITY OF CONFESSIONS BY A COERCION TEST.  FN6  VARYING
IMPRESSIONS AS TO THE RULE THAT THE MCNABB CASE ANNOUNCED APPEAR IN THE
CASES.  FN7  THE SPECIAL COMMITTEE ON THE BILL OF RIGHTS OF THE
AMERICAN BAR ASSOCIATION UNDER DATE OF MAY 15, 1944, ADVISED
SUBCOMMITTEE NO. 2 OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES THAT BEFORE THE MCNABB CASE "THERE WAS NO EFFECTIVE
PENALTY IN OPERATION.  ... 

"THEN CAME THE MCNABB CASE WHICH DID IMPOSE A DRASTIC PENALTY.  THE
SEVEN MAJORITY JUSTICES HELD THAT UNLAWFUL DETENTION SHUT OUT THE
CONFESSION.  THE DECISION MADE THE SPEEDY PRODUCTION STATUTES REALLY
MEAN SOMETHING.  THE POLICE WERE NO LONGER LEFT FREE TO ENFORCE THE LAW
BY DISOBEYING THE LAW."  P. V. 

FIVE MEMBERS OF THE SPECIAL COMMITTEE, APPARENTLY UNDER THE
CHAIRMANSHIP OF PROFESSOR ZECHARIAH CHAFEE, JR., ALSO SUBMITTED A
MEMORANDUM WHICH SAID, "THE MCNABB RULE EXCLUDING CONFESSIONS OBTAINED
DURING UNLAWFUL DETENTION IS AN EFFECTIVE PENALTY FOR VIOLATION OF THE
ACTS OF CONGRESS."  P. 19.  IT ADDED: 

"CONGRESS SHOULD BE VERY RELUCTANT TO TAKE AWAY THE ONLY EFFECTIVE
PENALTY NOW EXISTING FOR VIOLATION OF THE FUNDAMENTAL RIGHT TO HAVE THE
CONTINUANCE OF CUSTODY DETERMINED BY A MAGISTRATE AND NOT BY THE
UNCONTROLLED WILL OF THE POLICE, HOWEVER ABLE AND DEVOTED THEY MAY
BE."  P. 25.  FN8 

NOTWITHSTANDING THAT SOME DID GAIN THE IMPRESSION FROM THE MCNABB
CASE THAT IT WAS INTENDED AS A DISCIPLINE OF POLICE OFFICERS FOR THE
VIOLATION OF THE COMMITMENT STATUTES, A READING OF MCNABB AS LATER
EXPLAINED BY UNITED STATES V. MITCHELL, SUPRA, NEGATIVES SUCH A
CONCLUSION. 

IT IS TRUE THAT THERE ARE PHRASES IN THE MCNABB OPINION THAT CONDEMN
THE ASSUMED FAILURE TO TAKE THE ACCUSED PROMPTLY BEFORE A MAGISTRATE. 
FN9  FURTHER BENJAMIN'S CONFESSION WAS BARRED EVEN THOUGH IT WAS GIVEN
WITHIN "FIVE OR SIX HOURS" OF QUESTIONING, AND WITHOUT THE SLIGHTEST
SUGGESTION OF FORCE, AFTER HIS VOLUNTARY SURRENDER BECAUSE HE HAD HEARD
THE OFFICERS WERE LOOKING FOR HIM.  PERHAPS THE STRONGEST INDICATION
THAT THE MCNABB DECISION MAY HAVE BEEN INTENDED AS A PENALTY FOR POLICE
MISCONDUCT OCCURS IN ANOTHER CASE DECIDED THE SAME DAY AS MCNABB,
ANDERSON V. UNITED STATES, 318 U.S. 350.  THERE A MAN WAS ARRESTED
SUNDAY NIGHT AND CONFESSED AFTER TWO HOURS' QUESTIONING ON MONDAY
MORNING.  NEVERTHELESS HIS CONFESSION WAS HELD INADMISSIBLE UNDER
AUTHORITY OF MCNABB.  P. 355. 

HOWEVER, UNITED STATES V. MITCHELL, SUPRA, MADE IT CLEAR THAT THE
PURPOSE OF MCNABB WAS NOT TO ENFORCE A PENALTY FOR POLICE MISCONDUCT. 
FN10  IN THE MITCHELL CASE A SUSPECT WAS ARRESTED AND TAKEN TO THE
POLICE STATION.  HE CONFESSED WITHIN A FEW MINUTES OF HIS ARRIVAL.  HE
WAS ILLEGALLY DETAINED FOR EIGHT DAYS BEFORE BEING TAKEN BEFORE A
COMMITTING MAGISTRATE.  "THE POLICE EXPLANATION OF THIS ILLEGALITY IS
THAT MITCHELL WAS KEPT IN SUCH CUSTODY WITHOUT PROTEST THROUGH A DESIRE
TO AID THE POLICE IN CLEARING UP THIRTY HOUSEBREAKINGS  ...  "  THIS
COURT THEN PRONOUNCED THIS STATEMENT AS TO THE EXCLUSION OF THE
CONFESSIONS AS EVIDENCE, "THESE, WE HAVE SEEN, WERE NOT ELICITED
THROUGH ILLEGALITY.  THEIR ADMISSION, THEREFORE, WOULD NOT BE USE BY
THE GOVERNMENT OF THE FRUITS OF WRONGDOING BY ITS OFFICERS.  BEING
RELEVANT, THEY COULD BE EXCLUDED ONLY AS A PUNITIVE MEASURE AGAINST
UNRELATED WRONGDOING BY THE POLICE.  OUR DUTY IN SHAPING RULES OF
EVIDENCE RELATES TO THE PROPRIETY OF ADMITTING EVIDENCE.  THIS POWER IS
NOT TO BE USED AS AN INDIRECT MODE OF DISCIPLINING MISCONDUCT."  PP. 70
71.  THE MITCHELL EXPLANATION OF MCNABB SEEMS CORRECT.  IT IS NOT THE
FUNCTION OF COURTS TO PROVIDE PENALTIES AND SANCTIONS FOR ACTS
FORBIDDEN BY STATUTES WHERE NEITHER STATUTES NOR THE COMMON LAW NOR
EQUITY PROCEDURE HAVE ESTABLISHED THEM. 

FOR THE ABOVE REASONS, I REACH THE CONCLUSION THAT THE MCNABB CASE
WAS NOT INTENDED AS A PENALTY OR SANCTION FOR VIOLATION OF THE
COMMITMENT STATUTE. 

B. THE COURT BASES ITS DECISION OF TODAY ON THE THEORY THAT "A
CONFESSION IS INADMISSIBLE IF MADE DURING ILLEGAL DETENTION DUE TO
FAILURE PROMPTLY TO CARRY A PRISONER BEFORE A COMMITTING MAGISTRATE,
WHETHER OR NOT THE 'CONFESSION IS THE RESULT OF TORTURE, PHYSICAL OR
PSYCHOLOGICAL ...  '"  THE COURT HOLDS THAT THIS WAS THE MCNABB RULE
AND ADHERES TO IT.  I DO NOT THINK THIS WAS THE MCNABB RULE AND I DO
THINK THE RULE AS NOW STATED IS AN UNWARRANTED EXTENSION OF THE RULE
TAUGHT BY THE MCNABB CASE.  MY REASONS FOLLOW. 

THERE IS NO LEGAL THEORY EXPRESSED IN MCNABB THAT SUPPORTS THE IDEA
THAT EVERY CONFESSION AFTER UNNECESSARY DELAY AND BEFORE COMMITMENT IS
INADMISSIBLE.  THERE ARE A FEW ISOLATED SENTENCES THAT DO LEND CREDENCE
TO SUCH AN EXPLANATION OF THE LEGAL THEORY BEHIND THE CASE, BUT WHEN
READ IN CONTEXT, I THINK IT IS CLEAR THAT THEY DO NOT EXPOUND SUCH A
RULE.  FN11  THE PHYSICAL CONDITIONS OF THE RESTRAINT ARE EMPHASIZED,
PP. 335-38 AND 344-45.  ATTENTION IS CALLED TO THE EXAMINATION, WHEN
STRIPPED, OF ONE MAN.  P. 337.  FN12  THE MITCHELL CASE, SUPRA, P. 67,
REMOVES ALL MY DOUBTS AS TO THE TRUE MCNABB RULE.  IT SAYS:
"INEXCUSABLE DETENTION FOR THE PURPOSE OF ILLEGALLY EXTRACTING EVIDENCE
FROM AN ACCUSED, AND THE SUCCESSFUL EXTRACTION OF SUCH INCULPATORY
STATEMENTS BY CONTINUOUS QUESTIONING FOR MANY HOURS UNDER PSYCHOLOGICAL
PRESSURE, WERE THE DECISIVE FEATURES IN THE MCNABB CASE WHICH LED US TO
RULE THAT A CONVICTION ON SUCH EVIDENCE COULD NOT STAND."  FN13 

DURING DETENTION IN VIOLATION OF THE FEDERAL COMMITMENT STATUTE IS
THE LIKELIHOOD THAT POLICE OFFICIALS WILL USE COERCION FOR THE
EXTRACTION OF AN INVOLUNTARY CONFESSION SO STRONG AS TO JUSTIFY THE
EXCLUSION BY THIS COURT OF ALL CONFESSIONS TO THE POLICE OBTAINED AFTER
THEIR FAILURE TO CONFORM TO THE REQUIREMENT OF PROMPT PRODUCTION OF THE
ACCUSED BEFORE A MAGISTRATE?  I THINK NOT.  IT MUST BE ADMITTED THAT A
PROMPT HEARING GIVES AN ACCUSED AN OPPORTUNITY TO OBTAIN A LAWYER; FN14
TO SECURE FROM HIM ADVICE AS TO MAINTAINING AN ABSOLUTE SILENCE TO ALL
QUESTIONS, NO MATTER HOW APPARENTLY INNOCUOUS; TO GAIN COMPLETE FREEDOM
FROM POLICE INTERROGATION IN ALL BAILABLE OFFENSES N15; AND THAT THESE
PRIVILEGES ARE MORE VALUABLE TO THE ILLITERATE AND INEXPERIENCED THAN
TO THE EDUCATED AND WELL-BRIEFED ACCUSED.  PROPER PROTECTION OF THE
IGNORANT IS OF COURSE DESIRABLE, BUT THE RULE NOW ANNOUNCED FORCES
EXCLUSION OF ALL CONFESSIONS GIVEN DURING ILLEGAL RESTRAINT.  IT WILL
SHIFT THE INQUIRY TO THE LEGALITY OF THE ARREST AND RESTRAINT, RATHER
THAN TO WHETHER THE CONFESSION WAS VOLUNTARY.  SUCH EXCLUSION BECOMES
AUTOMATIC ON PROOF OF DETENTION IN VIOLATION OF THE COMMITMENT STATUTE,
FOLLOWED BY A CONFESSION TO POLICE OFFICIALS BEFORE COMMITMENT.  IT IS
NOW MADE ANALOGOUS TO THE EXCLUSION OF EVIDENCE OBTAINED IN VIOLATION
OF THE BILL OF RIGHTS THROUGH UNREASONABLE SEARCH AND SEIZURE OR
THROUGH COMPULSION OR BY DENIAL OF DUE PROCESS.  I DO NOT THINK THIS IS
THE DOCTRINE OF THE MCNABB CASE OR THAT IT SHOULD NOW BE MADE AN
EXPLICIT RULE OF FEDERAL LAW. 

THE RULE AS TO THE INADMISSIBILITY OF EVIDENCE IN FEDERAL COURTS
OBTAINED IN VIOLATION OF THE BILL OF RIGHTS, FOURTH AND FIFTH
AMENDMENTS IS, IT SEEMS TO ME, INAPPLICABLE AS AN ANALOGY TO A
SITUATION SUCH AS EXISTED IN THE MCNABB CASE AND HERE.  FN16  BY
ASSUMPTION OF THIS COURT, IN THE MCNABB CASE THE MCNABB CONFESSIONS
WERE OBTAINED WITHOUT "DISREGARD OF LIBERTIES DEEMED FUNDAMENTAL BY THE
CONSTITUTION," MCNABB V. UNITED STATES, SUPRA, 339, I.E., WITHOUT
VIOLATION OF THE BILL OF RIGHTS.  I TAKE IT THE SAME ASSUMPTION APPLIES
AS TO UPSHAW.  UNDER THIS ASSUMPTION, THE MCNABB CONFESSIONS WOULD HAVE
BEEN ADMISSIBLE IF THE COURT HAD NOT BELIEVED THERE WAS A FAILURE TO
FOLLOW THE STATUTE ON COMMITMENTS.  CONFESSIONS, OF COURSE, ARE ALSO
INADMISSIBLE WHEN COERCED IN VIOLATION OF CONSTITUTIONAL DUE PROCESS
UNDER THE FOURTEENTH AMENDMENT.  MALINSKI V. NEW YORK, 324 U.S. 401,
404; HALEY V. OHIO, 332 U.S. 596.  WHEN OTHER EVIDENCE IS THE DIRECT
RESULT OF AN UNCONSTITUTIONAL ACT SUCH AS A VIOLATION OF THE FOURTH
AMENDMENT, THIS COURT HAS SAID, IN FEDERAL CASES, THAT TO PERMIT ITS
USE WOULD IMPAIR THE PROTECTION OF THIS MAJOR GUARANTY OF A FREE
COUNTRY.  FN17  WHEN, AS IN THE MCNABB CASE, THERE ARE CONFESSIONS
AFTER FAILURE TO OBSERVE STATUTORY DIRECTIONS NOT SHOWN TO HAVE COERCED
THE CONFESSIONS THE RULE AS TO EVIDENCE EXTRACTED IN DEFIANCE OF THE
CONSTITUTION DOES NOT APPLY.  FN18 

THIS COURT BY DECISION HAS EXCLUDED EVIDENCE OBTAINED BY UNREASONABLE
SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT OR BY COERCION TO A
DEGREE THAT VIOLATES THE FIFTH OR THE FOURTEENTH AMENDMENTS BECAUSE THE
ADMISSION OF SUCH EVIDENCE WOULD IMPERIL THE EFFICACY OF THOSE
CONSTITUTIONAL RIGHTS.  IF CONFESSIONS OBTAINED DURING UNLAWFUL
DETENTION ARE NOT EXCLUDED BY THE FACT OF UNLAWFUL DETENTION ALONE, THE
CONSTITUTIONALLY GUARANTEED RIGHTS OF THE ACCUSED ARE NEVERTHELESS
PROTECTED BY THE RULE THAT NO INVOLUNTARY CONFESSION IS ADMISSIBLE.  IT
IS THEREFORE UNNECESSARY FOR CONSTITUTIONAL REASONS TO EXTEND THIS
PROTECTION TO EVIDENCE OBTAINED THROUGH VIOLATION OF A STATUTE OR A
RULE OF CRIMINAL PROCEDURE BY THOSE TO WHOM THE CONFESSION IS MADE.  IN
CRIMINAL TRIALS, THE METHOD OF OBTAINING EVIDENCE HAS NEVER BEEN A
REASON FOR BARRING ITS USE EXCEPT WHERE CONSTITUTIONAL RIGHTS WERE
VIOLATED.  FN19  THE PROHIBITION OF WIRETAPPING IN SEC. 605 OF THE
FEDERAL COMMUNICATIONS ACT IS NOT THE BASIS FOR THE EXCLUSION IN
PROSECUTIONS OF EVIDENCE SO OBTAINED.  THE EXCLUSION OF SUCH EVIDENCE
IS BASED ON AN EXPLICIT DIRECTION OF THE SECTION THAT INFORMATION SO
OBTAINED SHOULD NOT BE DIVULGED N20.  CONGRESS COULD, OF COURSE, PASS
SUCH A STATUTE TO PROHIBIT THE USE OF A CONFESSION AS EVIDENCE, IF
OBTAINED DURING AN UNLAWFUL DETENTION.  THE RULE OF THE OLMSTEAD CASE,
277 U.S. 438, 466, DERIVED FROM THE COMMON LAW THAT THE ADMISSIBILITY
OF EVIDENCE IS NOT AFFECTED BY CONDUCT OF INVESTIGATORS WHERE THERE IS
NO VIOLATION OF A CONSTITUTIONAL GUARANTY, STANDS UNIMPAIRED. 

IF THIS JUDICIAL RULE OF EXCLUSION OF ALL CONFESSIONS SECURED AFTER
ILLEGAL DETENTION IS ADHERED TO, IT MUST MEAN THAT THIS COURT THINKS
ILLEGAL DETENTION IS SO LIKELY TO RESULT IN "THIRD DEGREE" THAT IT
SHOULD BE OUTLAWED PER SE.  THERE IS A REFERENCE TO "THIRD DEGREE" IN
MCNABB, P. 344, BUT, AS INDICATED ABOVE, P. 425, NO RELIANCE UPON THE
DETENTION AS COERCIVE IN THE DUE PROCESS SENSE.  FN21  IF ILLEGAL
DETENTION, PER SE, IS BELIEVED SUFFICIENTLY LIKELY TO PRODUCE A COERCED
CONFESSION AS TO JUSTIFY EXCLUSION OF SUCH CONFESSIONS AS EVIDENCE, IT
DOES NOT REQUIRE THIS EXTENSION OF THE MCNABB RULE TO MAKE SUCH
EVIDENCE INADMISSIBLE.  A COURT NEVER KNOWS WHETHER A CONFESSION IS OR
IS NOT VOLUNTARY.  IT BARS CONFESSIONS ON UNCONTROVERTED PROOF OF FACTS
WHICH AS A MATTER OF LAW ARE DEEMED SO COERCIVE AS TO BE LIKELY TO
PRODUCE AN INVOLUNTARY CONFESSION.  CHAMBERS V. FLORIDA, 309 U.S. 227,
238-39; MALINSKI V. NEW YORK, 324 U.S. 401, 404.  IF ILLEGAL DETENTION
ALONE WERE DEEMED THAT COERCIVE, THE CONFESSIONS WOULD BE BARRED AS A
MATTER OF DUE PROCESS IN BOTH STATE AND FEDERAL COURTS.  FN22  SO HERE
IF ILLEGAL DETENTION ALONE IS THE DECISIVE FACTOR, THE RULE OF
EXCLUSION SURELY WILL APPLY TO BOTH STATE AND FEDERAL TRIALS AS
VIOLATIVE OF THE DUE PROCESS CLAUSE.  BUT THE MCNABB RULE DOES NOT
APPLY TO TRIALS IN STATE COURTS.  FN23  IT IS BECAUSE ILLEGAL DETENTION
WAS NOT THOUGHT TO BE PER SE COERCIVE THAT IT WAS NECESSARY TO CREATE
THE MCNABB RULE OF EXCLUSION. 

FOR THE FOREGOING REASONS, I CONCLUDE THAT DETENTION ALONE, EVEN FOR
THE PURPOSE OF OBTAINING INFORMATION, SHOULD NOT BE SUFFICIENT TO
JUSTIFY THE EXCLUSION OF A CONFESSION TO POLICE OFFICERS OBTAINED AFTER
UNNECESSARY DELAY AND BEFORE COMMITMENT. 

C. THIS BRINGS ME TO A STATEMENT OF THE TRUE RULE OF THE MCNABB CASE,
AS I UNDERSTAND IT.  THIS RULE IS THAT PURPOSEFUL, UNLAWFUL DETENTION
ILLEGALLY TO EXTRACT EVIDENCE AND THE SUCCESSFUL EXTRACTION OF
CONFESSIONS UNDER PSYCHOLOGICAL PRESSURE, OTHER THAN MERE DETENTION FOR
LIMITED PERIODS, MAKES CONFESSIONS SO OBTAINED INADMISSIBLE.  THIS
STATEMENT IS A PARAPHRASE OF THE MITCHELL INTERPRETATION REFERRED TO IN
THE PRECEDING SUBDIVISION.  IT MEANS THAT PRESSURE SHORT OF COERCION
BUT BEYOND MERE DETENTION MAKES CONFESSIONS INADMISSIBLE.  OBVIOUSLY
THERE IS A WIDE RANGE OF DISCRETION AS TO HOW MUCH PSYCHOLOGICAL
PRESSURE IS NECESSARY.  IF ANY MATERIAL AMOUNT IS SUFFICIENT, THE RULE
DIFFERS LITTLE FROM ONE DENYING ADMISSIBILITY IF OBTAINED DURING
ILLEGAL RESTRAINT.  IF ALMOST COERCION IS REQUIRED, THE RULE WILL
DIFFER LITTLE FROM THAT EXCLUDING AN INVOLUNTARY CONFESSION.  UNDER
THIS INTERPRETATION OF MCNABB, I SUPPOSE, AS IN COERCED CONFESSIONS, IT
SHOULD BE LEFT TO A JURY TO DECIDE WHETHER THERE WAS ENOUGH EVIDENCE OF
PRESSURE WHERE THE ADMITTED FACTS DO NOT SHOW IMPROPER PRESSURE AS A
MATTER OF LAW. 

                            II. 

THE COURT NOW SAYS THAT ILLEGAL DETENTION ALONE IS SUFFICIENT TO BAR
FROM EVIDENCE A CONFESSION TO THE POLICE DURING THAT UNLAWFUL
DETENTION.  AS I THINK THIS IS AN IMPROPER EXTENSION OF THE MCNABB
RULE, I PROCEED TO STATE THE APPLICATION OF THE MCNABB RULE, AS I
UNDERSTAND IT, TO UPSHAW'S SITUATION.  PERHAPS UPSHAW'S ARREST WITHOUT
A WARRANT WAS ALSO WITHOUT REASONABLE CAUSE ON THE PART OF THE
ARRESTING OFFICER TO BELIEVE HE HAD COMMITTED A FELONY.  THIS UNLAWFUL
ARREST IS NOT RELIED UPON IN THE OPINION.  SO FAR AS THE ADMISSIBILITY
OF THE CONFESSION IS CONCERNED, IT MAKES NO DIFFERENCE THAT IT MAY HAVE
BEEN OBTAINED AS THE RESULT OF AN ILLEGAL ARREST OR AN UNLAWFUL
DETENTION.  I THINK THERE WAS LESS PSYCHOLOGICAL PRESSURE UPON UPSHAW
THAN THERE WAS UPON THE MCNABBS.  THAT PRECEDENT, THEREFORE, IF THE
TRUE MCNABB RULE IS PROPERLY STATED IN PART I, SUBDIVISION C, ABOVE,
DOES NOT REQUIRE ME TO DECLARE UPSHAW'S CONFESSION INADMISSIBLE.  IN
THE MCNABBS' CASE, THE FACTS OF THEIR ILLEGAL DETENTION THAT CAUSED
THIS COURT'S ACTION APPEAR FROM THE OPINION AS SET OUT BELOW.  FN24  AS
FOR UPSHAW THE FACTS ARE DETAILED IN THE FOOTNOTE N25.  THE TIME
BETWEEN CONFESSION AND COMMITMENT IS NOT SIGNIFICANT.  UNITED STATES V.
MITCHELL, SUPRA. THE INDICATIONS OF PRESSURE ON THE MCNABBS THAT LEAD
ME TO CONCLUDE THAT THE COURT SHOULD HOLD UPSHAW'S CONFESSION
ADMISSIBLE UNDER MY UNDERSTANDING OF THE MCNABB RULE BEFORE THIS
PRESENT HOLDING ARE THE LACK OF EXPERIENCE OF THE MCNABBS, THE
"BREAKING" OF BENJAMIN BY CONFRONTATION OF CHARGES OF HIS GUILT BY HIS
RELATIVES AND CONFEDERATES, THE GREATER NUMBER OF OFFICERS QUESTIONING
THEM, AND THE LONGER TIME THE MCNABB GROUP WAS INTERROGATED.  FN26

                  III. 

I DO NOT AGREE THAT WE SHOULD NOW EXTEND THE MCNABB RULE BY SAYING
THAT EVERY CONFESSION OBTAINED BY POLICE AFTER UNNECESSARY DELAY IN
ARRAIGNMENT FOR COMMITMENT AND BEFORE MAGISTERIAL COMMITMENT MUST BE
BARRED FROM THE TRIAL.  THOSE MOST CONCERNED WITH A PROPER
ADMINISTRATION OF THE CRIMINAL LAW ARE AGAINST ANY EXTENSION. 

(1)  THE DEPARTURE OF THE MCNABB AND ANDERSON CASES FROM WELL
ESTABLISHED METHODS FOR PROTECTION AGAINST COERCION HAS BEEN CONDEMNED
BY THE HOUSE OF REPRESENTATIVES AND NOT ACTED UPON BY THE SENATE. 
FN27 

(2)  OFFICERS CHARGED WITH ENFORCEMENT OF THE CRIMINAL LAW HAVE
OBJECTED FOR THE REASON THAT FEAR OF THE APPLICATION OF ITS DRASTIC
PENALTIES DETERRED OFFICERS FROM QUESTIONING DURING REASONABLE DELAYS
IN COMMITMENT.  FN28 

(3)  STATE COURTS UNDER SIMILAR LAWS AND CONDITIONS HAVE REFUSED TO
FOLLOW THE MCNABB EXAMPLE.  FN29 

(4)  LAW REVIEW COMMENT GENERALLY CONDEMNS THE RULE.  FN30 

IN THE FEDERAL RULES OF CRIMINAL PROCEDURE, PRELIMINARY DRAFT,
SUBMITTED MAY 3, 1943, TO THIS COURT, THERE WAS INCLUDED A SEC. 5(B)
WHICH PURPORTED TO CODIFY THE MCNABB RULE.  FN31  IN RESPONSE TO
WIDESPREAD OPPOSITION TO SUCH A CODIFICATION,  FN32  THIS SECTION OF
RULE 5 WAS OMITTED FROM THE FINAL DRAFT.  THESE RULES WERE DRAWN BY A
REPRESENTATIVE COMMITTEE OF THE BENCH AND BAR WITH WIDE PARTICIPATION
BEYOND THE MEMBERSHIP BY INTERESTED PARTIES FROM BOTH GROUPS.  THEY
WERE TRANSMITTED ON DECEMBER 26, 1944, BY THIS COURT TO THE ATTORNEY
GENERAL TO BE REPORTED TO CONGRESS, MORE THAN A YEAR AFTER THE MCNABB
CASE AND AFTER THE HEARINGS ON THE HOUSE BILL TO NULLIFY THE MCNABB
RULE.  NEITHER THIS COURT NOR THE CONGRESS RESTORED THE REJECTED
PROPOSAL. 

INSTEAD OF AN EXTENSION OF THE MCNABB RULE, I FEEL THAT IT SHOULD BE
LEFT, AS I THINK IT ORIGINALLY WAS, A RULE THAT BARRED A CONFESSION
EXTRACTED UNDER PSYCHOLOGICAL PRESSURE OF THE DEGREE USED IN THE MCNABB
CASE. 

SUCH CONDEMNATION OF EVEN THE RESTRICTED MCNABB RULE BY THOSE
IMMEDIATELY RESPONSIBLE FOR THE ENACTMENT AND ADMINISTRATION OF OUR
CRIMINAL LAWS SHOULD MAKE THIS COURT, SO FAR REMOVED FROM THE
ACTUALITIES OF CRIME PREVENTION, HESITATE LONG BEFORE PUSHING FARTHER
BY JUDICIAL LEGISLATION ITS CONCEPTION OF THE PROPRIETIES IN CRIMINAL
INVESTIGATION.  IT TAKES THIS STEP IN THE BELIEF THAT THEREBY IT
STRENGTHENS CRIMINAL ADMINISTRATION BY PROTECTING A PRISONER.  A
PRISONER SHOULD HAVE PROTECTION BUT IT IS WELL TO REMEMBER THAT LAW AND
ORDER IS AN ESSENTIAL PREREQUISITE TO THE PROTECTION OF THE SECURITY OF
ALL.  TODAY'S DECISION PUTS ANOTHER WEAPON IN THE HAND OF THE CRIMINAL
WORLD.  APPARENTLY THE COURT INTENDS TO MAKE THE RULE OF COMMITMENT
"WITHOUT UNNECESSARY DELAY"  FN33  AN IRON RULE WITHOUT FLEXIBILITY TO
MEET THE EMERGENCIES OF CONSPIRACIES, SEARCH FOR CONFEDERATES, OR
EXAMINING INTO THE RAMIFICATIONS OF CRIMINALITY.  THE COURT DOES THIS
BY FAILING TO DISTINGUISH BETWEEN NECESSARY AND UNNECESSARY DELAY IN
COMMITMENT.  IT USES WORDS LIKE "FORTHWITH" AND "PROMPTLY" AND THUS
DESTROYS THE LEEWAY GIVEN BY THE RULE TO POLICE INVESTIGATIONS.  ALL, I
THINK, WITHOUT ANY NEED FOR SUCH ACTION SINCE EVERY COERCED CONFESSION
HAS BEEN INADMISSIBLE FOR GENERATIONS.  THE POSITION STATED IN THIS
DISSENT DOES NOT ENVISAGE A SURRENDER TO EVILS IN THE HANDLING OF
CRIMINALS.  IF THERE IS A PREVALENT ABUSE OF THE RIGHT TO QUESTION
PRISONERS, THE SOUNDER REMEDY LIES IN POLICE DISCIPLINE, IN STATUTORY
PUNISHMENT OF OFFENDING OFFICIALS, IN VIGOROUS JUDICIAL PROTECTION
AGAINST UNCONSTITUTIONAL PRESSURES FOR CONFESSIONS, AND IN LEGISLATIVE
ENACTMENTS FOR INQUIRIES INTO CIRCUMSTANCES SURROUNDING CRIMES BY
METHODS THAT PROTECT BOTH THE PUBLIC AND SUSPECTS - FOR EXAMPLE, AN
INQUIRY BEFORE A MAGISTRATE WITH SEALED EVIDENCE. 

I WOULD AFFIRM THIS CONVICTION IN RELIANCE UPON THE VERDICT OF THE
PROPERLY INSTRUCTED JURY THAT THIS WAS A VOLUNTARY CONFESSION. 

FN1  54 STAT. 688, 18 U.S.C. SEC. 687. 

RULES OF CRIMINAL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED
STATES, TOGETHER WITH NOTES TO THE RULES, 79TH CONG., 2D SESS., S. DOC.
NO. 175. 

NO CHANGE WAS MADE IN THE LAW BY P.L. 772, 80TH CONG., EFFECTIVE
SEPTEMBER 1, 1948, SEC. 20, 62 STAT. 683, 862.  18 U.S.C. SEC. 595 IS
NOT IN EFFECT BUT HAS BEEN SUPERSEDED BY RULE 5(A) OF THE RULES OF
CRIMINAL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED STATES: 

"5(A)  APPEARANCE BEFORE THE COMMISSIONER.  AN OFFICER MAKING AN
ARREST UNDER A WARRANT ISSUED UPON A COMPLAINT OR ANY PERSON MAKING AN
ARREST WITHOUT A WARRANT SHALL TAKE THE ARRESTED PERSON WITHOUT
UNNECESSARY DELAY BEFORE THE NEAREST AVAILABLE COMMISSIONER OR BEFORE
ANY OTHER NEARBY OFFICER EMPOWERED TO COMMIT PERSONS CHARGED WITH
OFFENSES AGAINST THE LAWS OF THE UNITED STATES.  WHEN A PERSON ARRESTED
WITHOUT A WARRANT IS BROUGHT BEFORE A COMMISSIONER OR OTHER OFFICER, A
COMPLAINT SHALL BE FILED FORTHWITH." 

FN2  FUNK V. UNITED STATES, 290 U.S. 371, 383: 

"THE FINAL QUESTION TO WHICH WE ARE THUS BROUGHT IS NOT THAT OF THE
POWER OF THE FEDERAL COURTS TO AMEND OR REPEAL ANY GIVEN RULE OR
PRINCIPLE OF THE COMMON LAW, FOR THEY NEITHER HAVE NOR CLAIM THAT
POWER, BUT IT IS THE QUESTION OF THE POWER OF THESE COURTS, IN THE
COMPLETE ABSENCE OF CONGRESSIONAL LEGISLATION ON THE SUBJECT, TO
DECLARE AND EFFECTUATE, UPON COMMON LAW PRINCIPLES, WHAT IS THE PRESENT
RULE UPON A GIVEN SUBJECT IN THE LIGHT OF FUNDAMENTALLY ALTERED
CONDITIONS, WITHOUT REGARD TO WHAT HAS PREVIOUSLY BEEN DECLARED AND
PRACTICED." 

FN3  OF THE CASES CITED, ONLY UNITED STATES V. WOOD, 14 PET. 430, AND
FUNK V. UNITED STATES, 290 U.S. 371, INVOLVE A CHANGE BY THIS COURT OF
A RULE OF EVIDENCE WHICH HAD BECOME FIRMLY ENTRENCHED IN OUR FEDERAL
JURISPRUDENCE.  THE OTHER CASES INVOLVE A CHOICE BETWEEN CONFLICTING
RULES OR THE ESTABLISHMENT OF A RULE WHERE NONE HAD THERETOFORE
EXISTED. 

FN4  318 U.S. 338-39: 

"  ...  RELYING UPON THE GUARANTEES OF THE FIFTH AMENDMENT THAT NO
PERSON '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,' THE PETITIONERS CONTEND THAT THE CONSTITUTION ITSELF
FORBADE THE USE OF THIS EVIDENCE AGAINST THEM.  THE GOVERNMENT COUNTERS
BY URGING THAT THE CONSTITUTION PROSCRIBES ONLY 'INVOLUNTARY'
CONFESSIONS, AND THAT JUDGED BY APPROPRIATE CRITERIA OF 'VOLUNTARINESS'
THE PETITIONERS' ADMISSIONS WERE VOLUNTARY AND HENCE ADMISSIBLE." 

THE COURT WAS ESTABLISHING WHAT IT THOUGHT WERE "CIVILIZED STANDARDS
OF PROCEDURE AND EVIDENCE."  P. 340. 

FN5  AS NO QUESTION WAS RAISED BY THE DEFENDANTS IN THE MCNABB CASE
BECAUSE OF PROLONGED POLICE DETENTION BEFORE COMMITMENT, THE RECORD DID
NOT SHOW WHEN THEY WERE COMMITTED.  DISSENT MCNABB V. UNITED STATES AT
P. 349.  THE COURT ASSUMED THAT DETENTION WITHOUT COMMITMENT LASTED FOR
FREEMAN AND RAYMOND MCNABB FROM BETWEEN ONE AND TWO O'CLOCK THURSDAY
MORNING, WHEN THEY WERE ARRESTED TWELVE MILES FROM CHATTANOOGA, UNTIL
THE COMPLETION OF THE QUESTIONING ABOUT TWO O'CLOCK SATURDAY MORNING,
FORTY-EIGHT HOURS LATER.  ONE CANNOT TELL FROM THE OPINION WHEN FREEMAN
AND RAYMOND CONFESSED OR TO WHAT.  A THIRD MCNABB, BENJAMIN, WAS NOT
TAKEN INTO CUSTODY UNTIL BETWEEN EIGHT AND NINE O'CLOCK FRIDAY
MORNING.  HE CONFESSED AFTER FIVE OR SIX HOURS.  THE COURT ASSUMED THAT
HE HAD NOT BEEN COMMITTED PRIOR TO CONFESSION.  MCNABB V. UNITED
STATES, SUPRA, PP. 334-38. 

SO FAR AS THE RULING IN THE MCNABB CASE IS CONCERNED, THE COURT'S
UNDERSTANDING OF THE FACTS, AS STATED IN THE OPINION, IS THE BASIS FOR
THE DECISION.  APPARENTLY FREEMAN AND RAYMOND WERE BY 10:30 A.M. OF THE
MORNING OF THEIR ARREST COMMITTED FOR OPERATING AN ILLICIT STILL,
ANOTHER CRIME THAN, THOUGH CONNECTED WITH, THE MURDER FOR WHICH THEY
WERE CONVICTED.  BENJAMIN WAS COMMITTED FOR MURDER WITHIN FOUR HOURS OF
HIS SURRENDER.  PETITION FOR REHEARING, PP. 3-5. 

SEE NEW TRIAL, MCNABB V. UNITED STATES, 142 F.2D 904.  THIS
COMMITMENT FOR A DIFFERENT CRIME WAS A SUFFICIENT COMPLIANCE WITH THE
COMMITMENT STATUTE TO JUSTIFY THE ADMISSION OF THE CONFESSIONS IN THE
SECOND MCNABB TRIAL, IN THE VIEW OF THE CIRCUIT COURT OF APPEALS FOR
THE SIXTH CIRCUIT. 

FN6  BRINEGAR V. UNITED STATES, 165 F.2D 512, 515; RUHL V. UNITED
STATES, 148 F.2D 173, 175; PADDY V. UNITED STATES, 143 F.2D 847, 852;
UNITED STATES V. GROTE, 140 F.2D 413, 414-15; UNITED STATES V. KLEE, 50
F.SUPP.  679. 

FN7  THE FOLLOWING STATEMENTS HAVE BEEN MADE CONCERNING MCNABB:  "THE
COURT THEN HELD THE CONFESSIONS OBTAINED BY THIRD DEGREE METHODS WERE
INADMISSIBLE  ...  "  STATE V. BEHLER, 65 IDAHO 464, 469, 146 P.2D 338,
340.  "THE COURTS ARE NOT CONCERNED WITH THE PRACTICES OF THE POLICE
EXCEPT IN SO FAR AS THEY MAY BE ASKED TO USE EVIDENCE THEREBY OBTAINED
AGAINST THE WILL OF THE ACCUSED."  PEOPLE V. FOX, 148 P.2D 424,
431(CALIF.).  "  ...  THE NEW DOCTRINE OF CONSTITUTIONAL RIGHTS UNDER
THE DUE PROCESS CLAUSE ANNOUNCED BY THE SUPREME COURT OF THE UNITED
STATES IN MCNABB V. UNITED STATES  ...  "  THOMPSON V. HARRIS, V.
HARRIS, 107 UTAH 99, 112, 152 P.2D 91, 97.  TO THE SAME EFFECT ARE
CAVAZOS V. STATE, 146 TEX. CR. REP. 144, 149, 172 S.W.2D 348, 351,
PEOPLE V. GOLDBLATT, 383 ILL. 176, 188, 49 N.E.2D 36, 41; ROYSE, J.,
DISSENTING, IN SCOOPMIRE V. TAFLINGER, 114 IND. APP. 419, 434, 52
N.E.2D 728, 733. 

FN8  SEE ALSO THE STATEMENT OF HON. FRANCIS BIDDLE, ATTORNEY GENERAL,
HEARINGS BEFORE SUBCOMMITTEE NO. 2 OF THE COMMITTEE OF THE JUDICIARY,
HOUSE OF REPRESENTATIVES, 78TH CONG., 1ST SESS., ON H.R. 3690, P. 27. 

FN9  E.G.:  "FOR IN THEIR TREATMENT OF THE PETITIONERS THE ARRESTING
OFFICERS ASSUMED FUNCTIONS WHICH CONGRESS HAS EXPLICITLY DENIED THEM. 
THEY SUBJECTED THE ACCUSED TO THE PRESSURES OF A PROCEDURE WHICH IS
WHOLLY INCOMPATIBLE WITH THE VITAL BUT VERY RESTRICTED DUTIES OF THE
INVESTIGATING AND ARRESTING OFFICERS OF THE GOVERNMENT AND WHICH TENDS
TO UNDERMINE THE INTEGRITY OF THE CRIMINAL PROCEEDING."  PP. 341-42. 
"A DEMOCRATIC SOCIETY, IN WHICH RESPECT FOR THE DIGNITY OF ALL MEN IS
CENTRAL, NATURALLY GUARDS AGAINST THE MISUSE OF THE LAW ENFORCEMENT
PROCESS.  ... EXPERIENCE HAS THEREFORE COUNSELED THAT SAFEGUARDS MUST
BE PROVIDED AGAINST THE DANGERS OF THE OVERZEALOUS AS WELL AS THE
DESPOTIC."  P. 343. 

FN10  SEE THE NCNABB RULE TRANSFORMED, 47 COL. L. REV. 1214. 

FN11  CF.:  "FOR IN THEIR TREATMENT OF THE PETITIONERS THE ARRESTING
OFFICERS ASSUMED FUNCTIONS WHICH CONGRESS HAS EXPLICITLY DENIED THEM." 
PP. 341-42.  "PLAINLY, A CONVICTION RESTING ON EVIDENCE SECURED THROUGH
SUCH A FLAGRANT DISREGARD OF THE PROCEDURE WHICH CONGRESS HAS COMMANDED
CANNOT BE ALLOWED TO STAND WITHOUT MAKING THE COURTS THEMSELVES
ACCOMPLICES IN WILLFUL DISOBEDIENCE OF LAW."  P. 345.  "AND THE
EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE HARDLY REQUIRES DISREGARD
OF FAIR PROCEDURES IMPOSED BY LAW."  P. 347.  ON THE OTHER HAND, THERE
ARE REPEATED EXPRESSIONS SUCH AS "THE EVIDENCE ELICITED  ...  IN THE
CIRCUMSTANCES DISCLOSED HERE," P. 341; "EVIDENCE SECURED UNDER THE
CIRCUMSTANCES REVEALED HERE," P. 347, WHICH POINT THE OTHER WAY. 

FN12  APPARENTLY SUCH AN EXAMINATION IS CONSIDERED EFFECTIVE
COERCION.  SEE MALINSKI V. NEW YORK, 324 U.S. 401. 

FN13  SEE ALSO THE STATEMENT IN HALEY V. OHIO, 332 U.S. 596, 606:
"LEGISLATION THROUGHOUT THE COUNTRY REFLECTS A SIMILAR BELIEF THAT
DETENTION FOR PURPOSES OF ELICITING CONFESSIONS THROUGH SECRET,
PERSISTENT, LONG-CONTINUED INTERROGATION VIOLATES SENTIMENTS DEEPLY
EMBEDDED IN THE FEELINGS OF OUR PEOPLE.  SEE MCNABB V. UNITED STATES,
318 U.S. 332, 342-43." 

IN DISCUSSING THE EFFECT OF THE MITCHELL CASE, A NOTE IN 38 JOURNAL
OF CRIMINAL LAW AND CRIMINOLOGY 136, SAYS AT P. 137:  "THERE THE COURT
PHRASED THE RULE OF THE MCNABB CASE TO STAND FOR THE PROPOSITION THAT
THE ILLEGAL DETENTION OF AN ACCUSED PERSON WILL INVALIDATE HIS
CONFESSION ONLY WHEN THE DETENTION ITSELF ACTS AS AN INDUCEMENT IN THE
PROCURING OF THE CONFESSION." 

FN14  RULES OF CRIMINAL PROCEDURE, NOS. 5(B) AND 44. 

FN15  18 U.S.C. SECS. 3041, 3141; RULES OF CRIMINAL PROCEDURE, NO.
46(A)(1). 

FN16  FOURTH AMENDMENT:  "THE RIGHT OF THE PEOPLE TO BE SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE
SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL
ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND
PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR
THINGS TO BE SEIZED." 

FIFTH AMENDMENT:  "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."    SEE WEEKS V.
UNITED STATES, 232 U.S. 383; BOYD V. UNITED STATES, 116 U.S. 616;
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385; GOULED V.
UNITED STATES, 255 U.S. 298; HARRIS V. UNITED STATES, 331 U.S. 145,
150. 

FN17  WEEKS V. UNITED STATES, 232 U.S. 383, 393:  "IF LETTERS AND
PRIVATE DOCUMENTS CAN THUS BE SEIZED AND HELD AND USED IN EVIDENCE
AGAINST A CITIZEN ACCUSED OF AN OFFENSE, THE PROTECTION OF THE FOURTH
AMENDMENT DECLARING HIS RIGHT TO BE SECURE AGAINST SUCH SEARCHES AND
SEIZURES IS OF NO VALUE, AND, SO FAR AS THOSE THUS PLACED ARE
CONCERNED, MIGHT AS WELL BE STRICKEN FROM THE CONSTITUTION.  THE
EFFORTS OF THE COURTS AND THEIR OFFICIALS TO BRING THE GUILTY TO
PUNISHMENT, PRAISEWORTHY AS THEY ARE, ARE NOT TO BE AIDED BY THE
SACRIFICE OF THOSE GREAT PRINCIPLES ESTABLISHED BY YEARS OF ENDEAVOR
AND SUFFERING WHICH HAVE RESULTED IN THEIR EMBODIMENT IN THE
FUNDAMENTAL LAW OF THE LAND." 

FN18  COMPARE THE STATEMENT OF CHIEF JUSTICE TAFT: 

"NOR CAN WE, WITHOUT THE SANCTION OF CONGRESSIONAL ENACTMENT,
SUBSCRIBE TO THE SUGGESTION THAT THE COURTS HAVE A DISCRETION TO
EXCLUDE EVIDENCE, THE ADMISSION OF WHICH IS NOT UNCONSTITUTIONAL,
BECAUSE UNETHICALLY SECURED.  THIS WOULD BE AT VARIANCE WITH THE COMMON
LAW DOCTRINE GENERALLY SUPPORTED BY AUTHORITY.  THERE IS NO CASE THAT
SUSTAINS, NOR ANY RECOGNIZED TEXT BOOK THAT GIVES COLOR TO SUCH A
VIEW.  OUR GENERAL EXPERIENCE SHOWS THAT MUCH EVIDENCE HAS ALWAYS BEEN
RECEIVABLE ALTHOUGH NOT OBTAINED BY CONFORMITY TO THE HIGHEST ETHICS. 
THE HISTORY OF CRIMINAL TRIALS SHOWS NUMEROUS CASES OF PROSECUTIONS OF
OATH-BOUND CONSPIRACIES FOR MURDER, ROBBERY, AND OTHER CRIMES, WHERE
OFFICERS OF THE LAW HAVE DISGUISED THEMSELVES AND JOINED THE
ORGANIZATIONS, TAKEN THE OATHS AND GIVEN THEMSELVES EVERY APPEARANCE OF
ACTIVE MEMBERS ENGAGED IN THE PROMOTION OF CRIME, FOR THE PURPOSE OF
SECURING EVIDENCE.  EVIDENCE SECURED BY SUCH MEANS HAS ALWAYS BEEN
RECEIVED. 

"A STANDARD WHICH WOULD FORBID THE RECEPTION OF EVIDENCE IF OBTAINED
BY OTHER THAN NICE ETHICAL CONDUCT BY GOVERNMENT OFFICIALS WOULD MAKE
SOCIETY SUFFER AND GIVE CRIMINALS GREATER IMMUNITY THAN HAS BEEN KNOWN
HERETOFORE.  IN THE ABSENCE OF CONTROLLING LEGISLATION BY CONGRESS,
THOSE WHO REALIZE THE DIFFICULTIES IN BRINGING OFFENDERS TO JUSTICE MAY
WELL DEEM IT WISE THAT THE EXCLUSION OF EVIDENCE SHOULD BE CONFINED TO
CASES WHERE RIGHTS UNDER THE CONSTITUTION WOULD BE VIOLATED BY
ADMITTING IT."  OLMSTEAD V. UNITED STATES, 277 U.S. 438, 468. 

FN19  E.G., PROCEEDINGS AGAINST BISHOP ATTERBURY, 16 HOW.  ST. TR.
323, 495, 629-30(1723); SYLVESTER THORNTON'S CASE, 1 LEWIN C.C.
49(1824); REX V. DERRINGTON, 2 C. & P. 418(1826); REG. V. GRANATELLI, 7
STATE TR. N.S. 979, 987(1849); HART V. UNITED STATES, 76 U.S. APP. D.C.
193, 130 F.2D 456(C.A.D.C. 1942). 

"IT IS NECESSARY IN THIS CONNECTION TO DISTINGUISH BETWEEN EVIDENCE
ILLEGALLY PROCURED AND EVIDENCE PROCURED BY UNCONSTITUTIONAL SEARCH AND
SEIZURE."  HART V. UNITED STATES, SUPRA, AT P. 459. 

THE ENGLISH EXCEPTION TO THIS RULE FOR CONFESSIONS OBTAINED BY POLICE
QUESTIONING WAS REJECTED BY THIS COURT, AFTER CAREFUL CONSIDERATION, IN
BRAM V. UNITED STATES, 168 U.S. 532, 556-58. 

FN20  NARDONE V. UNITED STATES, 302 U.S. 379, 382; GOLDSTEIN V.
UNITED STATES, 316 U.S. 114, 118. 

FN21  OTHERS HAVE VIEWED THE EXCLUSION OF CONFESSIONS IN THE MCNABB
CASE AS BASED ON THEIR EXTRACTION BY NEAR THIRD-DEGREE MEASURES. 
HEARINGS BEFORE SUBCOMMITTEE NO. 2 OF THE COMMITTEE ON THE JUDICIARY,
HOUSE OF REPRESENTATIVES, 78TH CONG., 1ST SESS., ON H.R. 3690, P. 92: 

"THE MCNABB DECISION DOES NOT EVEN PREVENT THE USE OF THE MAN'S OWN
CONFESSION AGAINST HIM.  WHAT IT DOES DO IS PREVENT THE USE AGAINST HIM
OF A CONFESSION OBTAINED BY THIRD DEGREE MEANS OR BY MEANS AKIN TO
THIRD DEGREE IN THE FORM OF THE SECRET DETENTION AND FAILURE TO BRING
HIM PROMPTLY TO THE COMMITTING OFFICER." 

FN22  CF. HALEY V. OHIO, 332 U.S. 596, 599, WHERE THIS COURT SAID IN
STRONGER LANGUAGE THAN IT HAD EVER USED BEFORE, "IF THE UNDISPUTED
EVIDENCE SUGGESTS THAT FORCE OR COERCION WAS USED TO EXACT THE
CONFESSION, WE WILL NOT PERMIT THE JUDGMENT OF CONVICTION TO STAND,
EVEN THOUGH WITHOUT THE CONFESSION THERE MIGHT HAVE BEEN SUFFICIENT
EVIDENCE FOR SUBMISSION TO THE JURY." 

FN23  TOWNSEND V. BURKE, 334 U.S. 736, 738. 

FN24  318 U.S. AT 334-38: 

"IMMEDIATELY UPON ARREST, FREEMAN, RAYMOND, AND EMUIL WERE TAKEN
DIRECTLY TO THE FEDERAL BUILDING AT CHATTANOOGA.  THEY WERE NOT BROUGHT
BEFORE A UNITED STATES COMMISSIONER OR A JUDGE.  INSTEAD, THEY WERE
PLACED IN A DETENTION ROOM (WHERE THERE WAS NOTHING THEY COULD SIT OR
LIE DOWN ON, EXCEPT THE FLOOR), AND KEPT THERE FOR ABOUT FOURTEEN
HOURS, FROM THREE O'CLOCK THURSDAY MORNING UNTIL FIVE O'CLOCK THAT
AFTERNOON.  THEY WERE GIVEN SOME SANDWICHES.  THEY WERE NOT PERMITTED
TO SEE RELATIVES AND FRIENDS WHO ATTEMPTED TO VISIT THEM.  THEY HAD NO
LAWYER.  THERE IS NO EVIDENCE THAT THEY REQUESTED THE ASSISTANCE OF
COUNSEL, OR THAT THEY WERE TOLD THAT THEY WERE ENTITLED TO SUCH
ASSISTANCE. 

"BARNEY MCNABB, WHO HAD BEEN ARRESTED EARLY THURSDAY MORNING BY THE
LOCAL POLICE, WAS HANDED OVER TO THE FEDERAL AUTHORITIES ABOUT NINE OR
TEN O'CLOCK THAT MORNING.  HE WAS TWENTY-EIGHT YEARS OLD; LIKE THE
OTHER MCNABBS HE HAD SPENT HIS ENTIRE LIFE IN THE SETTLEMENT, HAD NEVER
GONE BEYOND JASPER, AND HIS SCHOOLING STOPPED AT THE THIRD GRADE. 
BARNEY WAS PLACED IN A SEPARATE ROOM IN THE FEDERAL BUILDING WHERE HE
WAS QUESTIONED FOR A SHORT PERIOD.  THE OFFICERS THEN TOOK HIM TO THE
SCENE OF THE KILLING, BROUGHT HIM BACK TO THE FEDERAL BUILDING,
QUESTIONED HIM FURTHER FOR ABOUT AN HOUR, AND FINALLY REMOVED HIM TO
THE COUNTY JAIL THREE BLOCKS AWAY. 

"IN THE MEANTIME, DIRECTION OF THE INVESTIGATION HAD BEEN ASSUMED BY
H.B. TAYLOR, DISTRICT SUPERVISOR OF THE ALCOHOL TAX UNIT, WITH
HEADQUARTERS AT LOUISVILLE, KENTUCKY.  TAYLOR WAS THE GOVERNMENT'S
CHIEF WITNESS ON THE CENTRAL ISSUE OF THE ADMISSIBILITY OF THE
STATEMENTS MADE BY THE MCNABBS.  ARRIVING IN CHATTANOOGA EARLY THURSDAY
MORNING, HE SPENT THE DAY IN STUDY OF THE CASE BEFORE BEGINNING HIS
INTERROGATION OF THE PRISONERS.  FREEMAN, RAYMOND, AND EMUIL, WHO HAD
BEEN TAKEN TO THE COUNTY JAIL ABOUT FIVE O'CLOCK THURSDAY AFTERNOON,
WERE BROUGHT BACK TO THE FEDERAL BUILDING EARLY THAT EVENING. 
ACCORDING TO TAYLOR, HIS QUESTIONING OF THEM BEGAN AT NINE O'CLOCK. 
OTHER OFFICERS SET THE HOUR EARLIER. 

"THROUGHOUT THE QUESTIONING, MOST OF WHICH WAS DONE BY TAYLOR, AT
LEAST SIX OFFICERS WERE PRESENT.  AT NO TIME DURING ITS COURSE WAS A
LAWYER OR ANY RELATIVE OR FRIEND OF THE DEFENDANTS PRESENT.  TAYLOR
BEGAN BY TELLING 'EACH OF THEM BEFORE THEY WERE QUESTIONED THAT WE WERE
GOVERNMENT OFFICERS, WHAT WE WERE INVESTIGATING, AND ADVISED THEM THAT
THEY DID NOT HAVE TO MAKE A STATEMENT, THAT THEY NEED NOT FEAR FORCE,
AND THAT ANY STATEMENT MADE BY THEM WOULD BE USED AGAINST THEM, AND
THAT THEY NEED NOT ANSWER ANY QUESTIONS ASKED UNLESS THEY DESIRED TO DO
SO.' 

"THE MEN WERE QUESTIONED SINGLY AND TOGETHER.  AS DESCRIBED BY ONE OF
THE OFFICERS, 'THEY WOULD BE BROUGHT IN, BE QUESTIONED POSSIBLY AT
VARIOUS TIMES, SOME OF THEM HALF AN HOUR, OR MAYBE AN HOUR, OR MAYBE
TWO HOURS.'  TAYLOR TESTIFIED THAT THE QUESTIONING CONTINUED UNTIL ONE
O'CLOCK IN THE MORNING, WHEN THE DEFENDANTS WERE TAKEN BACK TO THE
COUNTY JAIL. 

"THE QUESTIONING WAS RESUMED FRIDAY MORNING, PROBABLY SOMETIME
BETWEEN NINE AND TEN O'CLOCK.  'THEY WERE BROUGHT DOWN FROM THE JAIL
SEVERAL TIMES, HOW MANY I DON'T KNOW.  THEY WERE QUESTIONED ONE AT A
TIME, AS WE WOULD FINISH ONE HE WOULD BE SENT BACK AND WE WOULD TRY TO
RECONCILE THE FACTS THEY TOLD, CONNECT UP THE STATEMENTS THEY MADE, AND
THEN WE WOULD GET TWO OF THEM TOGETHER.  I THINK AT ONE TIME WE
PROBABLY HAD ALL FIVE TOGETHER TRYING TO RECONCILE THEIR STATEMENTS
... WHEN I KNEW THE TRUTH I TOLD THE DEFENDANTS WHAT I KNEW.  I NEVER
CALLED THEM DAMNED LIARS, BUT I DID SAY THEY WERE LYING TO ME.  ...  IT
WOULD BE IMPOSSIBLE TO TELL ALL THE MOTIONS I MADE WITH MY HANDS DURING
THE TWO DAYS OF QUESTIONING, HOWEVER, I DIDN'T THREATEN ANYONE.  NONE
OF THE OFFICERS WERE PREJUDICED TOWARDS THESE DEFENDANTS NOR BITTER
TOWARD THEM.  WE WERE ONLY TRYING TO FIND OUT WHO KILLED OUR FELLOW
OFFICER.' 

"BENJAMIN MCNABB, THE THIRD OF THE PETITIONERS, CAME TO THE OFFICE OF
THE ALCOHOL TAX UNIT ABOUT EIGHT OR NINE O'CLOCK FRIDAY MORNING AND
VOLUNTARILY SURRENDERED.  BENJAMIN WAS TWENTY YEARS OLD, HAD NEVER BEEN
ARRESTED BEFORE, HAD LIVED IN THE MCNABB SETTLEMENT ALL HIS LIFE, AND
HAD NOT GOT BEYOND THE FOURTH GRADE IN SCHOOL.  HE TOLD THE OFFICERS
THAT HE HAD HEARD THAT THEY WERE LOOKING FOR HIM BUT THAT HE WAS
ENTIRELY INNOCENT OF ANY CONNECTION WITH THE CRIME.  THE OFFICERS MADE
HIM TAKE HIS CLOTHES OFF FOR A FEW MINUTES BECAUSE, SO HE TESTIFIED,
'THEY WANTED TO LOOK AT ME.  THIS SCARED ME PRETTY MUCH.'  HE WAS NOT
TAKEN BEFORE A UNITED STATES COMMISSIONER OR A JUDGE.  INSTEAD, THE
OFFICERS QUESTIONED HIM FOR ABOUT FIVE OR SIX HOURS.  WHEN FINALLY IN
THE AFTERNOON HE WAS CONFRONTED WITH THE STATEMENT THAT THE OTHERS
ACCUSED HIM OF HAVING FIRED BOTH SHOTS, BENJAMIN SAID, 'IF THEY ARE
GOING TO ACCUSE ME OF THAT, I WILL TELL THE WHOLE TRUTH; YOU MAY GET
YOUR PENCIL AND PAPER AND WRITE IT DOWN.'  HE THEN CONFESSED THAT HE
HAD FIRED THE FIRST SHOT, BUT DENIED THAT HE HAD ALSO FIRED THE
SECOND. 

"BECAUSE THERE WERE 'CERTAIN DISCREPANCIES IN THEIR STORIES, AND WE
WERE ANXIOUS TO STRAIGHTEN THEM OUT,' THE DEFENDANTS WERE BROUGHT TO
THE FEDERAL BUILDING FROM THE JAIL BETWEEN NINE AND TEN O'CLOCK FRIDAY
NIGHT.  THEY WERE AGAIN QUESTIONED, SOMETIMES SEPARATELY, SOMETIMES
TOGETHER.  TAYLOR TESTIFIED THAT 'WE HAD FREEMAN MCNABB ON THE NIGHT OF
THE SECOND (FRIDAY) FOR ABOUT THREE AND ONEHALF HOURS.  I DON'T
REMEMBER THE TIME BUT I REMEMBER HIM PARTICULARLY BECAUSE HE CERTAINLY
WAS HARD TO GET ANYTHING OUT OF.  HE WOULD ADMIT HE LIED BEFORE, AND
THEN TELL IT ALL OVER AGAIN.  I KNEW SOME OF THE THINGS ABOUT THE WHOLE
TRUTH AND IT TOOK ABOUT THREE AND ONE-HALF HOURS BEFORE HE WOULD SAY IT
WAS THE TRUTH, AND I FINALLY GOT HIM TO TELL A STORY WHICH HE SAID WAS
TRUE AND WHICH CERTAINLY FIT BETTER WITH THE PHYSICAL FACTS AND
CIRCUMSTANCES THAN ANY OTHER STORY HE HAD TOLD.  IT TOOK ME THREE AND
ONE-HALF HOURS TO GET A STORY THAT WAS SATISFACTORY OR THAT I BELIEVED
WAS NEARER THE TRUTH THAN WHEN WE STARTED.' 

"THE QUESTIONING OF THE DEFENDANTS CONTINUED UNTIL ABOUT TWO O'CLOCK
SATURDAY MORNING, WHEN THE OFFICERS FINALLY 'GOT ALL THE DISCREPANCIES
STRAIGHTENED OUT.'  BENJAMIN DID NOT CHANGE HIS STORY THAT HE HAD FIRED
ONLY THE FIRST SHOT.  FREEMAN AND RAYMOND ADMITTED THAT THEY WERE
PRESENT WHEN THE SHOOTING OCCURRED, BUT DENIED BENJAMIN'S CHARGE THAT
THEY HAD URGED HIM TO SHOOT.  BARNEY AND EMUIL, WHO WERE ACQUITTED AT
THE DIRECTION OF THE TRIAL COURT, MADE NO INCRIMINATING ADMISSIONS." 

IN APPRAISING THE SEVERITY OF THE MCNABB PRESSURE FOR CONFESSIONS IN
COMPARISON WITH THAT EXERTED IN THE UPSHAW DETENTION, IT SHOULD ALSO BE
BORNE IN MIND THAT IN THE ANDERSON CASE, 318 U.S. AT 355, A CONFESSION
WAS EXCLUDED THAT RESULTED FROM TWO HOURS' QUESTIONING.  I HAVE NO
EXPLANATION FOR THIS EXCLUSION.  IF IT WAS INTENDED TO MAKE TWO HOURS'
QUESTIONING A BAR TO A CONFESSION, THE LATER MITCHELL CASE IS
INCONSISTENT WITH SUCH A CONCLUSION.  SEE THE QUOTATION PRECEDING NOTE
13, SUPRA.  THE OPINION DOES NOT RELY UPON IT AND IT SEEMS TO ME
OBVIOUSLY WITHIN PERMISSIBLE LIMITS UNLESS WE ARE TO USE THE PENALTY
THEORY.  SEE P. 421, SUPRA. 

FN25  UPSHAW, A NEGRO MAN ABLE TO READ AND WRITE WHO HAD COMPLETED
ONE YEAR OF HIGH SCHOOL, WAS ARRESTED AT HIS ROOM BY DETECTIVES FURR
AND CULPEPPER ON A CHARGE OF LARCENY OF A WRIST WATCH AT ABOUT 2 A.M.,
FRIDAY, JUNE 6.  HE WAS TAKEN TO NO. 10 PRECINCT AND QUESTIONED FOR
ABOUT 30 MINUTES.  FURR TESTIFIED THAT PETITIONER WAS UNDER THE
INFLUENCE OF ALCOHOL AT THE TIME.  UPSHAW DENIED THIS.  HE WAS COUGHING
SPORADICALLY AT THE TIME OF HIS ARREST AND SUBSEQUENTLY UNTIL HIS
COMMITMENT.  AT APPROXIMATELY 10 A.M., JUNE 6, HE WAS QUESTIONED AGAIN
BY FURR, AT WHICH TIME HE DENIED GUILT.  CULPEPPER QUESTIONED HIM
THROUGH THE BARS IN THE CELL BLOCK AT 11 A.M. AND AGAIN AT 5:30 P.M. ON
JUNE 6.  FURR QUESTIONED HIM AGAIN FOR APPROXIMATELY 30 MINUTES AT 7:30
P.M. ON THE SAME DAY.  AT 9 A.M., JUNE 7, UPSHAW CONFESSED, AND AT 9:30
A.M. HE SIGNED A STATEMENT WHICH HE IDENTIFIED AS HIS STATEMENT AT 2
P.M., JUNE 7.  THUS SOME 31 HOURS INTERVENED BETWEEN THE ARREST AND THE
CONFESSION.  AT 9 P.M. THAT NIGHT UPSHAW WAS TAKEN TO THE HOME OF THE
COMPLAINING WITNESS WHERE HE REPEATED HIS CONFESSION TO HER. 

THE PETITIONER WAS TAKEN BEFORE A MAGISTRATE FOR COMMITMENT ON
MONDAY, JUNE 9.  THE OFFICERS TESTIFIED THAT THEY HAD NOT HAD HIM
COMMITTED SOONER BECAUSE THEY DID NOT HAVE A SUFFICIENT CASE AGAINST
HIM TO CAUSE THE POLICE COURT TO HOLD HIM AND BECAUSE THEY WANTED TO
CONTINUE THEIR INVESTIGATION. 

FN26  SEE 47 COL. L. REV. 1214, 1217, THE MCNABB RULE TRANSFORMED. 

FN27  93 CONG. REC. 1392; H.R. REP. NO. 29, 80TH CONG., 1ST SESS. 

FN28  INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, HEARINGS, SUPRA,
43; NATIONAL SHERIFFS' ASSOCIATION, HEARINGS, SUPRA, 26; ATTORNEY
GENERAL OF THE UNITED STATES, H.R. REP. NO. 29, SUPRA. 

FN29  FRY V. STATE, 78 OKLA. CR. 299, 313, 147 P.2D 803, 810-11;
STATE V. FOLKES, 174 ORE.  568, 588, 150 P.2D 17, 25; STATE V. SMITH,
158 KAN. 645, 651, 149 P.2D 600, 604; PEOPLE V. MALINSKI, 292 N.Y. 360,
370-372, 387, 55 N.E.2D 353, 357, 365; STATE V. COLLETT, 58 N.E.2D 417,
426-27(OHIO); STATE V. NAGEL, 75 N.D. 495, 28 N.W.2D 665, 679; STATE V.
ELLIS, 354 MO. 998, 1005, 193 S.W.2D 31, 34; FINLEY V. STATE, 153 FLA.
394, 14 SO.2D 844; STATE V. BROWNING, 206 ARK. 791, 793-798, 178 S.W.2D
77, 78-80; RUSSELL V. STATE, 196 GA. 275, 285, 26 S.E.2D 528, 534. 
FN30  INBAU, THE CONFESSION DILEMMA IN THE UNITED STATES SUPREME COURT,
43 ILL. L. REV. 442; 42 MICH. L. REV. 679; 56 HARV. L. REV. 1008; 47
COL. L. REV. 1214.  SEE STATEMENT OF SPECIAL COMMITTEE ON THE BILL OF
RIGHTS OF THE AMERICAN BAR ASSOCIATION, P. VI, WHICH ADVOCATES
MAINTENANCE OF MCNABB RULE UNTIL A BETTER SYSTEM FOR DEALING WITH
CONFESSIONS TO POLICE CAN BE DEVISED. 

FN31  "5(B)  EXCLUSION OF STATEMENT SECURED IN VIOLATION OF RULE.  NO
STATEMENT MADE BY A DEFENDANT IN RESPONSE TO INTERROGATION BY AN
OFFICER OR AGENT OF THE GOVERNMENT SHALL BE ADMISSIBLE IN EVIDENCE
AGAINST HIM IF THE INTERROGATION OCCURS WHILE THE DEFENDANT IS HELD IN
CUSTODY IN VIOLATION OF THIS RULE." 

FN32  HOLTZOFF, INSTITUTE ON FEDERAL CRIMINAL RULES, 29 A.B.A.J.
603. 

FN33  RULE 5(A), RULES OF CRIMINAL PROCEDURE.  THE LANGUAGE OF THE
RULE WAS ADOPTED TO ALLOW DESIRABLE FLEXIBILITY IN THE TIME OF
COMMITMENT.  SEE NOTES TO RULES OF CRIMINAL PROCEDURE, AS PREPARED
UNDER THE DIRECTION OF THE ADVISORY COMMITTEE; HEARINGS, SUPRA, PP. 36,
39.  IN MEMORANDUM ON THE DETENTION OF ARRESTED PERSONS, SUPRA, IT IS
STATED AT P. 30 WITH REFERENCE TO THE PHRASE "WITHIN A REASONABLE
TIME":  "THIS PHRASE WOULD HAVE THE ADVANTAGE OF SAVING CONFESSIONS
WHERE THE DELAY IN COMMITTAL WAS BRIEF AND REASONABLY EXPLAINED; HERE
THE EXISTING TENDENCY OF LOWER COURTS TO APPLY THE MCNABB RULE RIGIDLY
IS PRETTY HARSH ON THE GOVERNMENT." 
..END :




















UVEGES V. PENNSYLVANIA, 335 U.S. 437 


NO. 75.  ARGUED NOVEMBER 15-16, 1948.  - DECIDED DECEMBER 13, 1948.  -
161 PA. SUPER.  58, 53 A.2D 984, REVERSED. 


1.  WITHOUT BEING ADVISED OF HIS RIGHT TO COUNSEL OR BEING OFFERED
COUNSEL AT ANY TIME BETWEEN ARREST AND CONVICTION, A 17-YEAR-OLD YOUTH
CHARGED IN A PENNSYLVANIA STATE COURT UNDER FOUR INDICTMENTS WITH FOUR
SEPARATE BURGLARIES, FOR WHICH HE COULD HAVE BEEN GIVEN MAXIMUM
SENTENCES AGGREGATING 80 YEARS, PLEADED GUILTY AND WAS SENTENCED TO
FROM FIVE TO TEN YEARS ON EACH INDICTMENT, THE SENTENCES TO RUN
CONSECUTIVELY.  THE RECORD SHOWED NO ATTEMPT ON THE PART OF THE COURT
TO MAKE HIM UNDERSTAND THE CONSEQUENCES OF HIS PLEA.  HELD:  HE WAS
DENIED DUE PROCESS OF LAW CONTRARY TO THE FOURTEENTH AMENDMENT.  PP.
438-442. 

2.  THE DUE PROCESS CLAUSE OF THE FIFTH OR THE FOURTEENTH AMENDMENT
REQUIRES COUNSEL FOR ALL PERSONS CHARGED WITH SERIOUS CRIMES, WHEN
NECESSARY FOR THEIR ADEQUATE DEFENSE, IN ORDER THAT SUCH PERSONS MAY BE
ADVISED HOW TO CONDUCT THEIR TRIALS.  P. 441. 

3.  THE RECORD BEFORE THIS COURT ADEQUATELY RAISED THE FEDERAL
CONSTITUTIONAL QUESTION AS TO DENIAL OF THE RIGHT TO COUNSEL.  PP. 438
439. 

4.  SINCE IT APPEARS THAT IN PENNSYLVANIA HABEAS CORPUS IS AVAILABLE
TO AN ACCUSED WHOSE CONSTITUTIONAL RIGHT TO COUNSEL HAS BEEN DENIED,
AND SINCE THE STATE DOES NOT SUGGEST THAT IT BARS A REMEDY BY HABEAS
CORPUS IN THE CIRCUMSTANCES OF THIS CASE BECAUSE NO APPEAL WAS TAKEN
FROM THE ORIGINAL CONVICTION, THIS COURT DECIDES THIS CASE ON ITS
MERITS.  P. 440. 

UVEGES V. PENNSYLVANIA. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

WITHOUT A HEARING, A PENNSYLVANIA COURT OF COMMON PLEAS DISMISSED A
PETITION FOR A WRIT OF HABEAS CORPUS TO REVIEW PETITIONER'S CONVICTION,
ON HIS PLEAS OF GUILTY, FOR FOUR SEPARATE BURGLARIES.  THE SUPERIOR
COURT OF PENNSYLVANIA AFFIRMED.  161 PA. SUPER.  58, 53 A.2D 894.  THE
SUPREME COURT OF PENNSYLVANIA DENIED A PETITION FOR ALLOWANCE OF AN
APPEAL.  161 PA. SUPER.  XXV, 53 A.2D 894.  THIS COURT GRANTED
CERTIORARI.  334 U.S. 836.  REVERSED, P. 442. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS HELD BY THE COMMONWEALTH OF PENNSYLVANIA IN THE WESTERN
STATE PENITENTIARY ON SENTENCES TOTALLING A MINIMUM OF TWENTY AND A
MAXIMUM OF FORTY YEARS PRONOUNCED PURSUANT TO HIS PLEAS OF GUILTY TO
FOUR INDICTMENTS CHARGING BURGLARY.  WE GRANTED CERTIORARI TO REVIEW A
DENIAL BY THE SUPREME COURT OF PENNSYLVANIA OF HIS PETITION TO APPEAL
FROM A JUDGMENT OF THE SUPERIOR COURT WHICH AFFIRMED A DISMISSAL OF A
PETITION FOR HABEAS CORPUS IN THE COURT OF COMMON PLEAS OF ALLEGHENY
COUNTY.  PETITIONER CLAIMED IN THE STATE COURTS, AND NOW CLAIMS HERE,
THAT HE WAS DENIED COUNSEL IN THE PROCEEDINGS LEADING TO HIS
CONVICTIONS IN VIOLATION OF HIS RIGHT TO COUNSEL UNDER THE DUE PROCESS
OF LAW CLAUSE OF THE FOURTEENTH AMENDMENT. 

FROM THE PLEADINGS AND DECISIONS OF THE PENNSYLVANIA COURTS,
CERTIFIED TO US AS THE RECORD IN THE SUPREME COURT OF PENNSYLVANIA, AND
WITHOUT RELIANCE UPON ANY ADDITIONAL ALLEGATIONS IN THE PETITION FOR
CERTIORARI, THE FACTS AND ALLEGATIONS AS TO DENIAL OF CONSTITUTIONAL
RIGHTS MAY BE SUMMARIZED AS FOLLOWS:  ON OCTOBER 27, 1938, PETITIONER
UVEGES, A YOUTH SEVENTEEN YEARS OF AGE, WAS FACED WITH FOUR DISTRICT
ATTORNEY'S INDICTMENTS CHARGING FOUR SEPARATE BURGLARIES.  UPON HIS
PLEA OF GUILTY TO THESE INDICTMENTS, UVEGES WAS SENTENCED IN THE COURT
OF OYER AND TERMINER OF ALLEGHENY COUNTY TO FROM FIVE TO TEN YEARS ON
EACH INDICTMENT, THE SENTENCES TO RUN CONSECUTIVELY.  IN HIS PETITION
TO THE COURT OF COMMON PLEAS FOR A WRIT OF HABEAS CORPUS IN 1946,
PETITIONER ALLEGED THAT HE WAS NOT INFORMED OF HIS RIGHT TO COUNSEL NOR
WAS COUNSEL OFFERED HIM AT ANY TIME DURING THE PERIOD BETWEEN ARREST
AND CONVICTION.  HE ALSO ALLEGED THAT "FRIGHTENED BY THREATS OF DIRE
CONSEQUENCES IF HE DARED TO STAND TRIAL, RELATOR PLEADED GUILTY UNDER
THE DIRECTION OF AN ASSISTANT DISTRICT ATTORNEY, WITH THE UNDERSTANDING
THAT A SENTENCE TO HUNTINGTON REFORMATORY WOULD BE IMPOSED."  WE
DISREGARD THIS LAST ALLEGATION BECAUSE IT WAS NOT PRESENTED TO THE
SUPREME COURT OF PENNSYLVANIA IN THE PETITION FOR ALLOWANCE OF APPEAL. 
A RULE TO SHOW CAUSE WHY THE WRIT SHOULD NOT ISSUE WAS GRANTED.  THE
ANSWER DENIED THAT PETITIONER WAS ENTITLED TO COUNSEL BUT DID NOT DENY
THE ALLEGATION OF THREATS BY THE ASSISTANT DISTRICT ATTORNEY.  THE
COURT OF COMMON PLEAS, WITHOUT A HEARING, ENTERED AN ORDER DISMISSING
THE PETITION AND DENYING THE WRIT.  THE SUPERIOR COURT OF PENNSYLVANIA
AFFIRMED, 161 PA. SUPER.  58, 53 A.2D 894, NOTING THAT UVEGES HAD BEEN
ARRESTED ONCE BEFORE FOR BURGLARY AND CONFINED IN A REFORMATORY FOR TEN
MONTHS.  THE STATE SUPREME COURT, ON SEPTEMBER 29, 1947, DENIED A
PETITION FOR ALLOWANCE OF APPEAL WHICH REPEATED THE ALLEGATIONS OF
YOUTH AND DENIAL OF THE RIGHT TO COUNSEL.  161 PA. SUPER.  XXV, 53 A.2D
894.  WE THINK THIS RECORD ADEQUATELY RAISED THE FEDERAL CONSTITUTIONAL
QUESTION AS TO DENIAL OF COUNSEL.  PENNSYLVANIA MAKES NO CONTRARY
CONTENTION.  FN1  WE GRANTED THE MOTION TO PROCEED IN FORMA PAUPERIS
AND THE PETITION FOR A WRIT OF CERTIORARI, 334 U.S. 836, IN ORDER TO
EXAMINE THE IMPORTANT CONSTITUTIONAL QUESTION PRESENTED BY PETITIONER'S
CLAIM OF RIGHT TO COUNSEL.  FN2 

SINCE OUR UNDERSTANDING IS THAT IN PENNSYLVANIA HABEAS CORPUS IS
AVAILABLE TO AN ACCUSED WHOSE CONSTITUTIONAL RIGHT TO COUNSEL HAS BEEN
DENIED,  FN3  AND SINCE RESPONDENT DOES NOT SUGGEST THAT THE STATE BARS
A REMEDY BY HABEAS CORPUS IN THE CIRCUMSTANCES OF THIS CASE BECAUSE NO
APPEAL WAS TAKEN FROM THE ORIGINAL CONVICTION, WE PROCEED TO THE MERITS
OF THIS CONTROVERSY. 

SOME MEMBERS OF THE COURT THINK THAT WHERE SERIOUS OFFENSES ARE
CHARGED, FAILURE OF A COURT TO OFFER COUNSEL IN STATE CRIMINAL TRIALS
DEPRIVES AN ACCUSED OF RIGHTS UNDER THE FOURTEENTH AMENDMENT.  THEY ARE
CONVINCED THAT THE SERVICES OF COUNSEL TO PROTECT THE ACCUSED ARE
GUARANTEED BY THE CONSTITUTION IN EVERY SUCH INSTANCE.  SEE BUTE V.
ILLINOIS, 333 U.S. 640, DISSENT, 677-79.  ONLY WHEN THE ACCUSED REFUSES
COUNSEL WITH AN UNDERSTANDING OF HIS RIGHTS CAN THE COURT DISPENSE WITH
COUNSEL.  FN4  OTHERS OF US THINK THAT WHEN A CRIME SUBJECT TO CAPITAL
PUNISHMENT IS NOT INVOLVED, EACH CASE DEPENDS ON ITS OWN FACTS.  SEE
BETTS V. BRADY, 316 U.S. 455, 462.  WHERE THE GRAVITY OF THE CRIME AND
OTHER FACTORS - SUCH AS THE AGE AND EDUCATION OF THE DEFENDANT,  FN5
THE CONDUCT OF THE COURT OR THE PROSECUTING OFFICIALS,  FN6  AND THE
COMPLICATED NATURE OF THE OFFENSE CHARGED AND THE POSSIBLE DEFENSES
THERETO  FN7  - RENDER CRIMINAL PROCEEDINGS WITHOUT COUNSEL SO APT TO
RESULT IN INJUSTICE AS TO BE FUNDAMENTALLY UNFAIR, THE LATTER GROUP
HOLDS THAT THE ACCUSED MUST HAVE LEGAL ASSISTANCE UNDER THE AMENDMENT
WHETHER HE PLEADS GUILTY OR ELECTS TO STAND TRIAL, WHETHER HE REQUESTS
COUNSEL OR NOT.  ONLY A WAIVER OF COUNSEL, UNDERSTANDINGLY MADE,
JUSTIFIES TRIAL WITHOUT COUNSEL. 

THE PHILOSOPHY BEHIND BOTH OF THESE VIEWS IS THAT THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT OR THE FIFTH AMENDMENT REQUIRES
COUNSEL FOR ALL PERSONS CHARGED WITH SERIOUS CRIMES, WHEN NECESSARY FOR
THEIR ADEQUATE DEFENSE, IN ORDER THAT SUCH PERSONS MAY BE ADVISED HOW
TO CONDUCT THEIR TRIALS.  THE APPLICATION OF THE RULE VARIES AS
INDICATED IN THE PRECEDING PARAGRAPH. 

UNDER EITHER VIEW OF THE REQUIREMENTS OF DUE PROCESS, THE FACTS IN
THIS CASE REQUIRED THE PRESENCE OF COUNSEL AT PETITIONER'S TRIAL.  HE
SHOULD NOT HAVE BEEN PERMITTED TO PLEAD GUILTY WITHOUT AN OFFER OF THE
ADVICE OF COUNSEL IN HIS SITUATION.  IF THE CIRCUMSTANCES ALLEGED IN
HIS PETITION ARE TRUE, THE ACCUSED WAS ENTITLED TO AN ADVISER TO HELP
HIM HANDLE HIS PROBLEMS.  PETITIONER WAS YOUNG AND INEXPERIENCED IN THE
INTRICACIES OF CRIMINAL PROCEDURE WHEN HE PLEADED GUILTY TO CRIMES
WHICH CARRIED A MAXIMUM SENTENCE OF EIGHTY YEARS.  FN8  THERE IS AN
UNDENIED ALLEGATION THAT HE WAS NEVER ADVISED OF HIS RIGHT TO COUNSEL. 
THE RECORD SHOWS NO ATTEMPT ON THE PART OF THE COURT TO MAKE HIM
UNDERSTAND THE CONSEQUENCES OF HIS PLEA.  WHATEVER OUR DECISION MIGHT
HAVE BEEN IF THE TRIAL COURT HAD INFORMED HIM OF HIS RIGHTS AND
CONSCIENTIOUSLY HAD UNDERTAKEN TO PERFORM THE FUNCTIONS ORDINARILY
ENTRUSTED TO COUNSEL, WE CONCLUDE THAT THE OPPORTUNITY TO HAVE COUNSEL
IN THIS CASE WAS A NECESSARY ELEMENT OF A FAIR HEARING.  REVERSED. 

FN1  EXCERPTS FROM THE BRIEF OF THE COMMONWEALTH SHOW ITS ACCEPTANCE
OF THE ACTUAL ISSUE: 

"3.  THE BASIC QUESTION OF THIS CASE IS WHETHER THE PETITIONER WAS
DENIED DUE PROCESS OF LAW BY REASON OF THE FACT THAT THE COMMONWEALTH
OF PENNSYLVANIA DID NOT APPOINT COUNSEL TO REPRESENT HIM IN THE
PROCEEDINGS LEADING TO HIS IMPRISONMENT.  IT IS THE CONTENTION OF THE
RESPONDENT THAT THE FEDERAL CONSTITUTION DID NOT REQUIRE THAT THE STATE
APPOINT COUNSEL TO REPRESENT THIS ACCUSED SINCE 

"(A)  THE REQUIREMENT OF THE 6TH AMENDMENT TO THE FEDERAL
CONSTITUTION THAT THE ACCUSED BE REPRESENTED BY COUNSEL IN ALL CRIMINAL
CASES DOES NOT APPLY TO THE STATES AND 

"(B)  IT IS ONLY IN A CAPITAL CASE OR UNDER OTHER SPECIAL
CIRCUMSTANCES NOT HERE PRESENT THAT A STATE IS REQUIRED BY THE 14TH
AMENDMENT TO THE FEDERAL CONSTITUTION TO APPOINT COUNSEL TO REPRESENT
THE ACCUSED." 

"THE VITAL QUESTION TO BE DECIDED, AND, IN OUR VIEW OF THE CASE THE
ONLY SIGNIFICANT QUESTION, IS WHETHER THE ACCUSED, UNDER SUCH FACTS AS
ARE PROPERLY BEFORE THIS COURT, MUST BE REPRESENTED BY COUNSEL IN ORDER
THAT THE PROCESS LEADING TO HIS CONFINEMENT MAY BE DEEMED DUE
PROCESS." 

FN2  PETITIONER IN HIS PETITION FOR CERTIORARI BASES HIS CLAIM FOR
REVIEW IN PART ON PROCEDURAL IRREGULARITIES ALLEGEDLY IN VIOLATION OF
STATE STATUTES, SUCH AS THE FAILURE OF THE DISTRICT ATTORNEY PERSONALLY
TO SIGN THE INDICTMENTS.  SINCE THESE ALLEGATIONS, EVEN IF TRUE,
PRESENT NO FEDERAL QUESTION, WE HAVE NOT CONSIDERED THEM. 

FN3  SEE COMMONWEALTH EX REL. MCGLINN V. SMITH 344 PA. 41, 47-48, 24
A.2D 1, 4-5; COMMONWEALTH EX REL. PENLAND V. ASHE, 341 PA. 337, 341-42,
19 A.2D 464, 466. 

FN4  SEE RICE V. OLSON, 324 U.S. 786, 788-89; WALKER V. JOHNSTON, 312
U.S. 275, 286; JOHNSON V. ZERBST, 304 U.S. 458, 468. 

FN5  SEE E.G., WADE V. MAYO, 334 U.S. 672, 683-84; DE MEERLEER V.
MICHIGAN, 329 U.S. 663, 664-65; BETTS V. BRADY, SUPRA, AT 472, POWELL
V. ALABAMA, 287 U.S. 45, 51-52, 71. 

FN6  SEE E.G., TOWNSEND V. BURKE, 334 U.S. 736, 739-41; DE MEERLEER
V. MICHIGAN, SUPRA, AT 665; SMITH V. O'GRADY, 312 U.S. 329, 332-33. 

FN7  SEE E.G., RICE V. OLSON, 324 U.S. 786, 789-91. 

FN8  PURDON'S PA. STAT. ANN., TIT. 18, SEC. 4901. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE JACKSON AND MR.
JUSTICE BURTON CONCUR, DISSENTING. 

EXERCISE OF THIS COURT'S JURISDICTION IS PECULIARLY FOR THIS COURT'S
OWN DETERMINATION, AND IS NEITHER TO BE CONCEDED NOR WITHHELD BY
COUNSEL'S ADMISSION.  IN FACT, HOWEVER, PENNSYLVANIA DOES NOT ADMIT
THAT THE ADJUDICATION BY THE SUPREME COURT OF PENNSYLVANIA IS
REVIEWABLE HERE.  IT URGES THAT "UNDER SUCH FACTS AS ARE PROPERLY
BEFORE THIS COURT" PETITIONER'S CLAIM MUST FAIL.  THE CIRCUMSTANCES
UNDER WHICH THIS COURT IS REVERSING THE SUPREME COURT OF PENNSYLVANIA
SHOW SUCH DISREGARD FOR THE DISTRIBUTION OF JUDICIAL POWER BETWEEN THIS
COURT AND THE HIGHEST COURTS OF THE STATES, THAT I AM CONSTRAINED TO
DISSENT. 

AS THE CAPTION ANNOUNCES, THIS CASE WAS BROUGHT HERE BY A WRIT OF
CERTIORARI DIRECTED TO THE SUPREME COURT OF PENNSYLVANIA.  WE ISSUED
THE WRIT SOLELY ON THE BASIS OF ALLEGATIONS IN THE PETITION FOR
CERTIORARI.  IN SUM, THESE WERE THE ALLEGATIONS:  (1) PETITIONER WAS
HELD FOR TWO WEEKS WITHOUT BEING ABLE TO CONSULT FRIENDS OR RELATIVES;
(2) BECAUSE OF HIS YOUTH, HIS IGNORANCE AND THE COMPLEXITY OF THE
CHARGES AGAINST HIM, PETITIONER WAS INCAPABLE OF MEETING THEM
INTELLIGENTLY WITHOUT ASSISTANCE OF COUNSEL; (3) HIS REQUEST FOR LEGAL
AID TO DETERMINE HIS PLEA WAS MET WITH A THREAT OF A SEVERE SENTENCE IF
THE COMMONWEALTH WERE PUT TO THE EXPENSE OF A TRIAL; (4) HE WAS
PROMISED BY THE DISTRICT ATTORNEY A SHORT SENTENCE AT A REFORMATORY FOR
A PLEA OF GUILTY; (5) HE WAS NOT INFORMED OF THE CONSEQUENCES OF A PLEA
OF GUILTY, WAS UNAWARE OF ITS EFFECT, AND INTENDED TO PLEAD GUILTY ONLY
TO ONE OF SEVERAL INDICTMENTS. 

ON THESE ALLEGATIONS, WITHOUT MORE, WE GRANTED THE PETITION FOR
CERTIORARI ON JUNE 7, 1948.  THE RECORD BEFORE THE SUPREME COURT OF
PENNSYLVANIA, ON THE BASIS OF WHICH THAT COURT DENIED THE PETITION FOR
AN APPEAL TO REVIEW THE ORDER OF THE SUPERIOR COURT AFFIRMING THE
REFUSAL OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY TO ISSUE A
WRIT OF HABEAS CORPUS, WAS NOT BEFORE US WHEN WE GRANTED CERTIORARI. 
NOT UNTIL SEPTEMBER 8, 1948, WAS THAT RECORD SENT HERE BY THE SUPREME
COURT OF PENNSYLVANIA; IT WAS LODGED HERE ON SEPTEMBER 20, 1948.  IT
NOW APPEARS THAT THE ALLEGATIONS ON WHICH THIS COURT ISSUED ITS WRIT TO
THE PENNSYLVANIA SUPREME COURT WERE NOT BEFORE THAT COURT IN THE PAPER
IT REQUIRES TO BE FILED TO DETERMINE WHETHER UNDER PENNSYLVANIA LAW AN
APPEAL SHOULD BE ENTERTAINED.  MORE PARTICULARLY, THE FIVE ALLEGATIONS
SUMMARIZED ABOVE HAD NOT BEEN BEFORE THE SUPREME COURT OF PENNSYLVANIA
WHEN IT DENIED AN APPEAL.  APART FROM TWO CLAIMS INVOLVING MATTERS OF
LOCAL PROCEDURE, THE ONLY GROUND ON WHICH APPEAL WAS SOUGHT FROM THE
PENNSYLVANIA SUPERIOR COURT WAS THE BARE CLAIM THAT PETITIONER WAS
DENIED ASSISTANCE OF COUNSEL, UNSUPPORTED BY THOSE CONSIDERATIONS OF
UNFAIRNESS WHICH, UNDER OUR RULINGS, MAKE SUCH DENIAL A DENIAL OF THE
DUE PROCESS GUARANTEED BY THE FOURTEENTH AMENDMENT. 

HAVING GRANTED A REVIEW OF THE ACTION OF THE PENNSYLVANIA SUPREME
COURT ON THE BASIS OF ALLEGATIONS NOT BEFORE THAT COURT, THIS COURT NOW
HOLDS THAT THE SUPREME COURT OF PENNSYLVANIA HAS FLOUTED THE
CONSTITUTION OF THE UNITED STATES.  IT DOES SO DESPITE THE FACT THAT AT
THE BAR OF THIS COURT THE REPRESENTATIVE OF PENNSYLVANIA UNRESERVEDLY
ADMITTED THAT THE WRIT OF HABEAS CORPUS WOULD NOT HAVE BEEN DISMISSED
BY THE COURTS OF PENNSYLVANIA IF THE ALLEGATIONS THAT WERE MADE HERE
HAD BEEN MADE THERE.  WE ARE REVIEWING WHAT THE PENNSYLVANIA SUPREME
COURT DID.  THE ONLY MATTER BEFORE THAT COURT WAS A PETITION FOR AN
ALLOWANCE OF AN APPEAL FROM THE ORDER OF THE SUPERIOR COURT OF
PENNSYLVANIA.  THE ONLY MATTER PROPERLY BEFORE US IS DISALLOWANCE OF
THAT APPEAL.  IF THE SUPREME COURT OF PENNSYLVANIA WAS, AS A MATTER OF
STATE LAW, AUTHORIZED TO DISALLOW THE APPEAL BECAUSE THE CLAIM WAS NOT
FORMULATED WITH ADEQUATE PARTICULARITY, A FEDERAL QUESTION IS WANTING
AND OUR WRIT, BEING WITHOUT PROPER FOUNDATION, SHOULD BE DISMISSED. 
THE FACT THAT ON ADEQUATE ALLEGATIONS IN A NEW PROCEEDING BEFORE AN
APPROPRIATE PENNSYLVANIA COURT THE CLAIM MAY BE SUCCESSFULLY SUSTAINED,
GIVES THIS COURT NO WARRANT FOR ASSUMING THAT THE PROPER ALLEGATIONS
WERE BEFORE THE PENNSYLVANIA SUPREME COURT SO AS TO TRANSMUTE ITS
DENIAL OF AN APPEAL INTO THE DENIAL OF A PROPERLY PRESENTED FEDERAL
CLAIM.    THIS COURT NOW MAKES SUCH AN ASSUMPTION.  IF WE ARE TO DECIDE
A CASE, HOWEVER GRAVE THE ISSUE, ONLY ON WHAT APPEARS ACCORDING TO THE
RECORD, THERE IS NO BASIS FOR FINDING THAT THE SUPREME COURT HAD BEFORE
IT ANYTHING BUT THE PETITION FOR ALLOWANCE OF AN APPEAL.  THIS IS SO
EVEN IF WE ASSUME, ALTHOUGH NOTHING IN THE RECORD AFFORDS US THE RIGHT
TO DO SO,  FN1  THAT THE RECORDS IN THE LOWER COURTS OF PENNSYLVANIA
WERE FILED IN ITS SUPREME COURT BEFORE IT DISALLOWED AN APPEAL. 
APPELLANTS OFTEN DO NOT RAISE ALL THAT THEY URGED IN A LOWER COURT, AND
THEY SOMETIMES RAISE AN ISSUE FOR THE FIRST TIME IN THE APPELLATE
COURT.  IN ANY EVENT, THE PETITION HERE WAS TO REVIEW THE ADJUDICATION
OF THE SUPREME COURT OF PENNSYLVANIA AND OUR WRIT RAN TO THAT COURT. 
THIS IS NOT A CASE WHERE OUR WRIT TURNS OUT TO BE FORMALLY MISDIRECTED
DUE TO THE FACT THAT THE RECORD TO BE SENT UP WAS LODGED, ACCORDING TO
LOCAL PROCEDURE, IN ONE COURT RATHER THAN ANOTHER.  IN SUCH A CASE WHAT
IS REVIEWED HERE, DESPITE THE MISDIRECTION, IS THE SAME RECORD THAT WAS
BEFORE THE STATE COURT WHICH IS TO BE REVIEWED.  THE WRIT RUNS TO THE
OTHER COURT ONLY TO GET THE RECORD HERE.  THIS CASE PRESENTS QUITE A
DIFFERENT SITUATION.  WE CANNOT REVIEW THE JUDGMENT OF THE COURT OF
COMMON PLEAS OF ALLEGHENY COUNTY, OR THAT OF THE SUPERIOR COURT OF
PENNSYLVANIA, BECAUSE NEITHER IS A FINAL JUDGMENT UNDER PENNSYLVANIA
LAW IF EITHER INVOLVED A FEDERAL CONSTITUTIONAL ISSUE.  FOR OUR PURPOSE
OF "FINALITY," SUCH AN ISSUE MUST GO TO THE SUPREME COURT OF
PENNSYLVANIA BECAUSE THAT COURT HAS OBLIGATORY JURISDICTION TO REVIEW
IT.  PA. STAT. ANN., TIT. 17, SEC. 190; COMMONWEALTH V. CAULFIELD, 211
PA. 644; SEE COMMONWEALTH V. GARDNER, 297 PA. 498, 500.  IN BRINGING
HERE FOR REVIEW THE ACTION OF THAT COURT WE MUST BE GOVERNED BY WHAT
WAS BEFORE THAT COURT AND CANNOT RELY ON WHAT WAS NOT BEFORE IT. 

UNLESS WE ARE TO ASSUME THAT THE SUPREME COURT OF PENNSYLVANIA
FLAGRANTLY VIOLATED ITS DUTY UNDER PENNSYLVANIA LAW TO GRANT AN APPEAL
WHERE A VIOLATION OF A RIGHT SECURED BY THE CONSTITUTION OF THE UNITED
STATES IS PROPERLY RAISED, WE MUST ATTRIBUTE TO THAT COURT A NON
CONSTITUTIONAL GROUND IN DENYING AN APPEAL IF IT MAY REASONABLY BE SO
ATTRIBUTED.  IF THAT COURT HAD SAID EXPLICITLY THAT IT REQUIRES A MORE
PARTICULARIZED STATEMENT FOR THE CLAIM THAT THE PETITIONER DID NOT
PLEAD GUILTY WITH FULL UNDERSTANDING OF WHAT HE WAS DOING AND THAT THE
FAILURE TO ASSIGN HIM COUNSEL IN NO WISE HANDICAPPED HIM IN PLEADING TO
THE INDICTMENTS, THIS COURT HARDLY WOULD FIND THAT THE CONSTITUTION OF
THE UNITED STATES PRECLUDES SUCH A STATE REQUIREMENT OF PARTICULARITY
IN AN EFFORT TO SET ASIDE A SENTENCE EIGHT YEARS AFTER IT WAS IMPOSED. 
IF SUCH A DETERMINATION BY THE SUPREME COURT OF PENNSYLVANIA EXPLICITLY
MADE WOULD NOT RAISE A FEDERAL QUESTION, IT DOES NOT RAISE A FEDERAL
QUESTION IF ON THE RECORD WE HAVE A RIGHT TO INFER THAT SUCH WAS THE
IMPLICIT RULING OF THE PENNSYLVANIA COURT.  THAT COURT MAY DISPOSE OF
CASES SUMMARILY AS DOES THIS COURT.  THE RECORD HERE PLAINLY CALLS FOR
THE INFERENCE THAT THE CLAIMS NOW MADE WERE NOT ADEQUATELY PRESENTED IN
THE PAPER UPON WHICH THE SUPREME COURT OF PENNSYLVANIA ACTED.  A
COMPARISON BETWEEN THE STATEMENTS WHICH THE SUPREME COURT OF
PENNSYLVANIA HAD BEFORE IT WHEN IT DENIED THE APPEAL, AND THE
ALLEGATIONS MADE IN THE PETITION BEFORE THIS COURT, ON THE BASIS OF
WHICH WE ISSUED THE WRIT OF CERTIORARI, AFFORDS COMPELLING REASON FOR
ATTRIBUTING THE DISALLOWANCE OF THE APPEAL BY THE PENNSYLVANIA SUPREME
COURT TO ITS FINDING THAT A CLAIM OF LACK OF DUE PROCESS RAISED AFTER
EIGHT YEARS WAS MADE WITHOUT SUFFICIENT PARTICULARITY TO CALL FOR A
TRIAL ON THE MERITS.  A TABULAR VIEW OF THE CLAIMS MADE IN THE FOUR
COURTS BEFORE WHICH THEY WERE PRESSED CLEARLY ESTABLISHES NOT ONLY THAT
WHAT WAS BEFORE THE SUPREME COURT OF PENNSYLVANIA WAS VERY DIFFERENT
FROM WHAT WAS URGED HERE, BUT ALSO DIFFERENT FROM WHAT WAS URGED BEFORE
THE LOWER PENNSYLVANIA COURTS* .  A FINDING THAT A STATE COURT
DISREGARDED THE CONSTITUTION OF THE UNITED STATES SHOULD NOT BE LIKE A
GAME OF BLINDMAN'S BUFF. 

                 *  CLAIMS MADE IN THE VARIOUS COURTS

                           (CHART OMMITTED) 

SINCE THE ACTION OF THE STATE COURT MAY FAIRLY BE SUSTAINED ON THE
STATE GROUND OF FAILURE ADEQUATELY TO PRESENT THE CONSTITUTIONAL CLAIM
SOUGHT TO BE RAISED, WE MUST SO INTERPRET IT. KLINGER V. MISSOURI, 13
WALL.  257, 263; LYNCH V. NEW YORK EX REL. PIERSON, 293 U.S. 52, 54;
SOUTHWESTERN BELL TELEPHONE CO. V. OKLAHOMA, 303 U.S. 206, 212.  OUR
REVIEWING POWER IS OF COURSE NOT TO BE WITHHELD BY EXCOGITATING SOME
FANCIFUL OR RECONDITE DOCTRINE OF LOCAL LAW FOR A STATE COURT
DECISION.  HERE THE STATE GROUND IS FAIRLY OBVIOUS.  TO REJECT IT IS TO
REACH OUT FOR A FEDERAL ISSUE.  THE PENNSYLVANIA COURTS ARE FULLY AWARE
OF THE CIRCUMSTANCES UNDER WHICH INDIGENT DEFENDANTS ARE ENTITLED TO
THE ASSISTANCE OF COUNSEL.  SEE E.G. COMMONWEALTH EX REL. MCGLINN V.
SMITH, 344 PA. 41.  ONLY BY ASSUMING THAT THE SUPREME COURT OF
PENNSYLVANIA WAS HEEDLESS OF ITS DUTY UNDER THE CONSTITUTION CAN WE
ASSUME THAT IT DENIED AN APPEAL IN THIS CASE BECAUSE OF SUCH
HEEDLESSNESS RATHER THAN BECAUSE IT ENFORCED ALLOWABLE REQUIREMENTS BY
PENNSYLVANIA FOR ASSERTING A CONSTITUTIONAL CLAIM. 

SUCH REASONING IS NOT WHAT IS INVIDIOUSLY CALLED LEGALISTIC.  LAW IS
ESSENTIALLY LEGALISTIC IN THE SENSE THAT OBSERVANCE OF WELL-RECOGNIZED
PROCEDURE IS, ON BALANCE, SOCIALLY DESIRABLE.  IN THE WELL-BEING OF A
FEDERALISM LIKE OURS OBSERVANCE OF WHAT ON CASUAL VIEW MAY APPEAR AS A
STERILE TECHNICALITY IS IMPORTANT WHENEVER THIS COURT IS BROUGHT IN
POTENTIAL CONFLICT WITH STATE COURTS.  ESPECIALLY IS IT IMPORTANT AS TO
THOSE VAST REACHES OF THE CRIMINAL LAW WHICH ARE EXCLUSIVELY WITHIN
STATE DOMAIN, AND WHICH ARE THEREFORE NOT SUBJECT TO THE SUPERVISION
WHICH THIS COURT MAY EXERCISE OVER THE LOWER FEDERAL COURTS.  OF COURSE
THIS COURT HAS THE DUTY OF ALERTNESS IN SAFEGUARDING RIGHTS GUARANTEED
BY THE CONSTITUTION OF THE UNITED STATES AGAINST INFRINGEMENT BY THE
STATES EVEN IN THEIR DIFFICULT TASK OF REPRESSING CRIME AND DEALING
WITH TRANSGRESSORS.  AT BEST, HOWEVER, INTERVENTION BY THIS COURT IN
THE CRIMINAL PROCESS OF STATES IS DELICATE BUSINESS.  IT SHOULD NOT BE
INDULGED IN UNLESS NO REASONABLE DOUBT IS LEFT THAT A STATE DENIES, OR
HAS REFUSED TO EXERCISE, MEANS OF CORRECTING A CLAIMED INFRACTION OF
THE UNITED STATES CONSTITUTION. 

INTERVENTION BY THIS COURT IN THE ADMINISTRATION OF THE CRIMINAL
JUSTICE OF A STATE HAS ALL THE DISADVANTAGES OF INTERFERENCE FROM
WITHOUT.  WHATEVER SHORT-CUT TO RELIEF MAY BE HAD IN A PARTICULAR CASE,
IT IS CALCULATED TO BEGET MISUNDERSTANDING AND FRICTION AND TO THAT
EXTENT DETRACTS FROM THOSE IMPONDERABLES WHICH ARE THE ULTIMATE
RELIANCE OF A CIVILIZED SYSTEM OF LAW.  AFTER ALL, THIS IS THE NATION'S
ULTIMATE JUDICIAL TRIBUNAL, NOT A SUPER-LEGAL-AID BUREAU.  IF THE SAME
RELIEF, ALTHOUGH BY A MORE TEDIOUS PROCESS, IS AVAILABLE THROUGH A
STATE'S SELF-CORRECTIVE PROCESS, IT ENLISTS THE UNDERSTANDING AND
SUPPORT OF THE COMMUNITY.  CONSIDERATIONS ROOTED IN PSYCHOLOGICAL AND
SOCIOLOGICAL REASON UNDERLIE THE DUTY OF ABSTENTION BY THIS COURT FROM
UPSETTING CONVICTIONS BY STATE COURTS OR THEIR REFUSAL TO GRANT WRITS
OF HABEAS CORPUS TO THOSE UNDER STATE SENTENCES, WHERE STATE ACTION MAY
FAIRLY BE ATTRIBUTED TO A RULE OF LOCAL PROCEDURE AND IS NOT
EXCLUSIVELY FOUNDED ON DENIAL OF A FEDERAL CLAIM.  WHEN A STATE COURT
EXPLICITLY RESTS ITS DECISION ON A STATE GROUND IT IS EASY SAILING. 
BUT EVEN WHEN A STATE COURT SUMMARILY DISPOSES OF A CASE WITHOUT
SPELLING OUT ITS GROUND, LED TO DO SO, AS IS THIS COURT IN MANY CASES,
BY THE BURDEN OF ITS DOCKET, IT IS OUR DUTY NOT TO ATTRIBUTE TO THE
STATE COURT FLOUTING OF THE UNITED STATES CONSTITUTION BUT TO INFER
REGARD FOR ITS OWN LAW, IF TO THAT LAW MAY REASONABLY BE ATTRIBUTED A
FINDING OF INADEQUACY IN THE MODE OF PRESENTING THE CONSTITUTIONAL
CLAIM FOR WHICH RELIEF IS HERE SOUGHT ON THE MERITS. 

I WOULD DISMISS THE WRIT, LEAVING PETITIONER TO PURSUE IN
PENNSYLVANIA THE CLAIM HE MAKES HERE. 

FN1  THE RELEVANT DOCKET ENTRIES OF THE THREE PENNSYLVANIA COURTS
WHICH CONSIDERED THIS CASE STRONGLY INDICATE THAT ALL PAPERS OTHER THAN
THE PETITION FOR ALLOWANCE OF AN APPEAL WERE IN THE COURT OF COMMON
PLEAS FOR ALLEGHENY COUNTY WHEN THE PENNSYLVANIA SUPREME COURT WAS
DETERMINING THE ALLOWANCE OF AN APPEAL.  THE "DOCKET ENTRIES" IN THE
SUPERIOR COURT OF PENNSYLVANIA RECORD THAT ON JULY 29, 1947, TWELVE
DAYS AFTER THAT COURT AFFIRMED THE ORDER OF THE COURT OF COMMON PLEAS,
THE RECORD OF THE COURT OF COMMON PLEAS, WHICH HAD BEEN FILED IN THE
SUPERIOR COURT, WAS REMITTED TO THE COURT OF COMMON PLEAS.  THE LATTER
COURT'S "APPEARANCE DOCKET ENTRY" SHOWS THAT IT WAS RECEIVED ON THE
SAME DAY.  TWENTY-FOUR DAYS LATER, ON AUGUST 22, 1947, THE PETITIONER
FILED IN THE SUPREME COURT OF PENNSYLVANIA HIS PETITION FOR ALLOWANCE
OF APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT.  THE DOCKET ENTRIES
IN THE SUPREME COURT OF PENNSYLVANIA DO NOT SHOW THAT THE RECORD WHICH
PREVIOUSLY HAD BEEN SENT BACK TO THE COURT OF COMMON PLEAS BY THE
SUPERIOR COURT HAD BEEN FILED IN THAT COURT. 

AFTER THIS COURT ISSUED ITS WRIT ON JUNE 7, 1948, PETITIONER'S
ATTORNEY FILED A "PRAECIPE" WITH THE CLERK OF THE SUPREME COURT OF
PENNSYLVANIA REQUESTING THAT THE PAPERS THAT NOW MAKE UP THE RECORD IN
THIS COURT BE CERTIFIED TO THIS COURT.  ALTHOUGH THIS WAS DONE UNDER
THE CLERK'S SIGNATURE WITH A STATEMENT THAT "THE FOREGOING RECORD  ...
IS A TRUE AND FAITHFUL COPY OF THE RECORD AND PROCEEDINGS OF THE
SUPREME COURT OF PENNSYLVANIA  ...  IN A CERTAIN SUIT THEREIN PENDING
...  " THAT RECORD SHOWS THAT THE SUPREME COURT OF PENNSYLVANIA, AFTER
OUR WRIT OF CERTIORARI HAD BEEN DIRECTED TO IT, HAD TO ISSUE ITS
SUPPLEMENTAL CERTIORARI TO THE COURT OF COMMON PLEAS TO OBTAIN THE
RECORD. 
..END :







MCDONALD V. UNITED STATES, 335 U.S. 451 


NO. 36.  ARGUED OCTOBER 13, 1948.  - DECIDED DECEMBER 13, 1948.  - 83
U.S. APP. D.C. 96, 166 F.2D 957, REVERSED. 


SUSPECTING THAT PETITIONER MCDONALD WAS OPERATING AN ILLEGAL LOTTERY,
POLICE HAD KEPT HIM UNDER SURVEILLANCE FOR TWO MONTHS.  THINKING THAT
THEY DETECTED FROM THE OUTSIDE THE SOUND OF AN ADDING MACHINE, THEY
FORCED THEIR WAY, WITHOUT A WARRANT FOR SEARCH OR ARREST, INTO A
ROOMING HOUSE IN WHICH HE HAD RENTED A ROOM.  THEY PROCEEDED TO HIS
ROOM, LOOKED THROUGH THE TRANSOM, AND OBSERVED PETITIONERS MCDONALD AND
WASHINGTON ENGAGED IN OPERATING A LOTTERY.  DEMANDING AND OBTAINING
ENTRANCE, THEY ARRESTED BOTH PETITIONERS AND SEIZED MACHINES, PAPERS
AND MONEY WHICH WERE IN PLAIN VIEW.  THESE ARTICLES WERE ADMITTED IN
EVIDENCE OVER THE OBJECTION OF PETITIONERS, WHO WERE CONVICTED.  HELD: 

1.  THE SEIZURE WAS IN VIOLATION OF THE FOURTH AMENDMENT, THE SEIZED
ARTICLES WERE NOT ADMISSIBLE IN EVIDENCE AGAINST MCDONALD, AND HIS
CONVICTION CANNOT BE SUSTAINED.  PP. 452-456. 

2.  A SEARCH WITHOUT A WARRANT IS NOT JUSTIFIED UNLESS THE EXIGENCIES
OF THE SITUATION MAKE THAT COURSE IMPERATIVE.  PP. 454-456. 

3.  EVEN IF IT BE ASSUMED THAT WASHINGTON'S CONSTITUTIONAL RIGHTS
WERE NOT INVADED, THE DENIAL OF MCDONALD'S MOTION TO EXCLUDE THE
EVIDENCE WAS, ON THESE FACTS, PREJUDICIAL TO WASHINGTON AS WELL AS TO
MCDONALD.  P. 456. 

MCDONALD ET AL. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. 

PETITIONERS WERE CONVICTED IN A FEDERAL DISTRICT COURT ON EVIDENCE
OBTAINED BY A SEARCH WITHOUT A WARRANT.  THE COURT OF APPEALS
AFFIRMED.  83 U.S. APP. D.C. 96, 166 F.2D 957.  THIS COURT GRANTED
CERTIORARI.  333 U.S. 872.  REVERSED, P. 456. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE CONVICTED IN THE DISTRICT COURT ON EVIDENCE OBTAINED
BY A SEARCH MADE WITHOUT A WARRANT.  THE COURT OF APPEALS AFFIRMED ON A
DIVIDED VOTE.  83 U.S. APP. D.C. 96, 166 F.2D 957.  WE BROUGHT THE CASE
HERE ON CERTIORARI BECAUSE OF DOUBTS WHETHER THAT RESULT SQUARED WITH
JOHNSON V. UNITED STATES, 333 U.S. 10, AND TRUPIANO V. UNITED STATES,
334 U.S. 699. 

PETITIONERS WERE TRIED WITHOUT A JURY IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA ON AN INDICTMENT IN FOUR COUNTS, CHARGING OFFENSES
OF CARRYING ON A LOTTERY KNOWN AS THE NUMBERS GAME IN VIOLATION OF 22
D.C. CODE SECS. 1501, 1502, 1504(1940).  THEY WERE FOUND GUILTY ON ALL
COUNTS. 

PETITIONER MCDONALD, WHO HAD PREVIOUSLY BEEN ARRESTED FOR NUMBERS
OPERATIONS, HAD BEEN UNDER POLICE OBSERVATION FOR SEVERAL MONTHS PRIOR
TO THE ARREST.  DURING THIS PERIOD AND WHILE HE WAS MAINTAINING A HOME
IN THE DISTRICT OF COLUMBIA, HE RENTED A ROOM IN THE RESIDENCE OF A
MRS. TERRY, WHO MAINTAINED A ROOMING HOUSE IN THE DISTRICT.  HIS
COMINGS AND GOINGS AT THIS ADDRESS WERE UNDER SURVEILLANCE BY THE
POLICE FOR ABOUT TWO MONTHS.  THEY HAD OBSERVED HIM ENTER THE ROOMING
HOUSE DURING THE HOURS IN WHICH OPERATIONS AT THE HEADQUARTERS OF THE
NUMBERS GAME ARE CUSTOMARILY CARRIED ON. 

ON THE DAY OF THE ARREST THREE POLICE OFFICERS SURROUNDED THE HOUSE. 
THIS WAS MIDAFTERNOON.  THEY DID NOT HAVE A WARRANT FOR ARREST NOR A
SEARCH WARRANT.  WHILE OUTSIDE THE HOUSE, ONE OF THE OFFICERS THOUGHT
THAT HE HEARD AN ADDING MACHINE.  THESE MACHINES ARE FREQUENTLY USED IN
THE NUMBERS OPERATION.  BELIEVING THAT THE NUMBERS GAME WAS IN PROCESS,
THE OFFICERS SOUGHT ADMISSION TO THE HOUSE. 

ONE OF THEM OPENED A WINDOW LEADING INTO THE LAND-LADY'S ROOM AND
CLIMBED THROUGH.  HE IDENTIFIED HIMSELF TO HER AND ADMITTED THE OTHER
OFFICERS TO THE HOUSE. 

AFTER SEARCHING THE ROOMS ON THE GROUND FLOOR, THEY PROCEEDED TO THE
SECOND FLOOR.  THE DOOR OF AN END BEDROOM WAS CLOSED.  BUT ONE OF THE
OFFICERS STOOD ON A CHAIR AND LOOKED THROUGH THE TRANSOM.  HE OBSERVED
BOTH PETITIONERS IN THE ROOM, AS WELL AS NUMBERS SLIPS, MONEY PILED ON
THE TABLE, AND ADDING MACHINES.  HE YELLED TO MCDONALD TO OPEN THE DOOR
AND MCDONALD DID SO.  BOTH PETITIONERS WERE ARRESTED, AND THE OFFICERS
SEIZED THE MACHINES, A SUITCASE OF PAPERS, AND MONEY.  WHETHER THESE
MACHINES AND PAPERS SHOULD HAVE BEEN SUPPRESSED AS EVIDENCE AND
RETURNED TO PETITIONER MCDONALD IS THE MAJOR QUESTION PRESENTED. 

THE FOURTH AMENDMENT TO THE CONSTITUTION PROVIDES:  "THE RIGHT OF THE
PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS,
AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND
NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR
AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND
THE PERSONS OR THINGS TO BE SEIZED."  THIS GUARANTEE OF PROTECTION
AGAINST UNREASONABLE SEARCHES AND SEIZURES EXTENDS TO THE INNOCENT AND
GUILTY ALIKE.  IT MARKS THE RIGHT OF PRIVACY AS ONE OF THE UNIQUE
VALUES OF OUR CIVILIZATION AND, WITH FEW EXCEPTIONS, STAYS THE HANDS OF
THE POLICE UNLESS THEY HAVE A SEARCH WARRANT ISSUED BY A MAGISTRATE ON
PROBABLE CAUSE SUPPORTED BY OATH OR AFFIRMATION.  AND THE LAW PROVIDES
AS A SANCTION AGAINST THE FLOUTING OF THIS CONSTITUTIONAL SAFEGUARD THE
SUPPRESSION OF EVIDENCE SECURED AS A RESULT OF THE VIOLATION, WHEN IT
IS TENDERED IN A FEDERAL COURT.  WEEKS V. UNITED STATES, 232 U.S. 383. 

THE PROSECUTION SEEKS TO BUILD THE LAWFULNESS OF THE SEARCH ON THE
LAWFULNESS OF THE ARREST AND SO JUSTIFY THE SEARCH AND SEIZURE WITHOUT
A WARRANT.  SEE AGNELLO V. UNITED STATES, 269 U.S. 20, 30; HARRIS V.
UNITED STATES, 331 U.S. 145, 150-151.  THE REASONING RUNS AS FOLLOWS:
ALTHOUGH IT WAS AN INVASION OF PRIVACY FOR THE OFFICERS TO ENTER MRS.
TERRY'S ROOM, THAT WAS A TRESPASS WHICH VIOLATED HER RIGHTS UNDER THE
FOURTH AMENDMENT, NOT MCDONALD'S.  THEREFORE SO FAR AS HE WAS
CONCERNED, THE OFFICERS WERE LAWFULLY WITHIN THE HALLWAY, AS MUCH SO AS
IF MRS. TERRY HAD ADMITTED THEM.  LOOKING OVER THE TRANSOM WAS NOT A
SEARCH, FOR THE EYE CANNOT COMMIT THE TRESPASS CONDEMNED BY THE FOURTH
AMENDMENT.  SINCE THE OFFICERS OBSERVED MCDONALD IN THE ACT OF
COMMITTING AN OFFENSE, THEY WERE UNDER A DUTY THEN AND THERE TO ARREST
HIM.  SEE 4 D.C. CODE SECS. 140, 143(1940).  THE ARREST BEING VALID THE
SEARCH INCIDENT THERETO WAS LAWFUL. 

WE DO NOT STOP TO EXAMINE THAT SYLLOGISM FOR FLAWS.  ASSUMING ITS
CORRECTNESS, WE REJECT THE RESULT. 

THIS IS NOT A CASE WHERE THE OFFICERS, PASSING BY ON THE STREET, HEAR
A SHOT AND A CRY FOR HELP AND DEMAND ENTRANCE IN THE NAME OF THE LAW. 
THEY HAD BEEN FOLLOWING MCDONALD AND KEEPING HIM UNDER SURVEILLANCE FOR
TWO MONTHS AT THIS ROOMING HOUSE.  THE PROSECUTION NOW TELLS US THAT
THE POLICE HAD NO PROBABLE CAUSE FOR OBTAINING A WARRANT UNTIL, SHORTLY
BEFORE THE ARREST, THEY HEARD THE SOUND OF THE ADDING MACHINE COMING
FROM THE ROOMING HOUSE.  AND THERE IS VAGUE AND GENERAL TESTIMONY IN
THE RECORD THAT ON PREVIOUS OCCASIONS THE OFFICERS HAD SOUGHT SEARCH
WARRANTS BUT HAD BEEN DENIED THEM.  BUT THOSE STATEMENTS ALONE DO NOT
LAY THE PROPER FOUNDATION FOR DISPENSING WITH A SEARCH WARRANT. 

WHERE, AS HERE, OFFICERS ARE NOT RESPONDING TO AN EMERGENCY, THERE
MUST BE COMPELLING REASONS TO JUSTIFY THE ABSENCE OF A SEARCH WARRANT. 
A SEARCH WITHOUT A WARRANT DEMANDS EXCEPTIONAL CIRCUMSTANCES, AS WE
HELD IN JOHNSON V. UNITED STATES, SUPRA.  WE WILL NOT ASSUME THAT WHERE
A DEFENDANT HAS BEEN UNDER SURVEILLANCE FOR MONTHS, NO SEARCH WARRANT
COULD HAVE BEEN OBTAINED.  WHAT SHOWING THESE OFFICERS MADE WHEN THEY
APPLIED ON THE EARLIER OCCASIONS, THE DATES OF THESE APPLICATIONS, AND
ALL THE CIRCUMSTANCES BEARING UPON THE NECESSITY TO MAKE THIS SEARCH
WITHOUT A WARRANT ARE ABSENT FROM THIS RECORD.  WE CANNOT ALLOW THE
CONSTITUTIONAL BARRIER THAT PROTECTS THE PRIVACY OF THE INDIVIDUAL TO
BE HURDLED SO EASILY.  MOREOVER, WHEN WE MOVE TO THE SCENE OF THE
CRIME, THE REASON FOR THE ABSENCE OF A SEARCH WARRANT IS EVEN LESS
OBVIOUS.  WHEN THE OFFICERS HEARD THE ADDING MACHINE AND, AT THE
LATEST, WHEN THEY SAW WHAT WAS TRANSPIRING IN THE ROOM, THEY CERTAINLY
HAD ADEQUATE GROUNDS FOR SEEKING A SEARCH WARRANT. 

HERE, AS IN JOHNSON V. UNITED STATES AND TRUPIANO V. UNITED STATES,
THE DEFENDANT WAS NOT FLEEING OR SEEKING TO ESCAPE.  OFFICERS WERE
THERE TO APPREHEND PETITIONERS IN CASE THEY TRIED TO LEAVE.  NOR WAS
THE PROPERTY IN THE PROCESS OF DESTRUCTION NOR AS LIKELY TO BE
DESTROYED AS THE OPIUM PARAPHERNALIA IN THE JOHNSON CASE.  PETITIONERS
WERE BUSILY ENGAGED IN THEIR LOTTERY VENTURE.  NO REASON, EXCEPT
INCONVENIENCE OF THE OFFICERS AND DELAY IN PREPARING PAPERS AND GETTING
BEFORE A MAGISTRATE, APPEARS FOR THE FAILURE TO SEEK A SEARCH WARRANT. 
BUT THOSE REASONS ARE NO JUSTIFICATION FOR BY-PASSING THE
CONSTITUTIONAL REQUIREMENT, AS WE HELD IN JOHNSON V. UNITED STATES,
SUPRA, P. 15. 

WE ARE NOT DEALING WITH FORMALITIES.  THE PRESENCE OF A SEARCH
WARRANT SERVES A HIGH FUNCTION.  ABSENT SOME GRAVE EMERGENCY, THE
FOURTH AMENDMENT HAS INTERPOSED A MAGISTRATE BETWEEN THE CITIZEN AND
THE POLICE.  THIS WAS DONE NOT TO SHIELD CRIMINALS NOR TO MAKE THE HOME
A SAFE HAVEN FOR ILLEGAL ACTIVITIES.  IT WAS DONE SO THAT AN OBJECTIVE
MIND MIGHT WEIGH THE NEED TO INVADE THAT PRIVACY IN ORDER TO ENFORCE
THE LAW.  THE RIGHT OF PRIVACY WAS DEEMED TOO PRECIOUS TO ENTRUST TO
THE DISCRETION OF THOSE WHOSE JOB IS THE DETECTION OF CRIME AND THE
ARREST OF CRIMINALS.  POWER IS A HEADY THING; AND HISTORY SHOWS THAT
THE POLICE ACTING ON THEIR OWN CANNOT BE TRUSTED.  AND SO THE
CONSTITUTION REQUIRES A MAGISTRATE TO PASS ON THE DESIRES OF THE POLICE
BEFORE THEY VIOLATE THE PRIVACY OF THE HOME.  WE CANNOT BE TRUE TO THAT
CONSTITUTIONAL REQUIREMENT AND EXCUSE THE ABSENCE OF A SEARCH WARRANT
WITHOUT A SHOWING BY THOSE WHO SEEK EXEMPTION FROM THE CONSTITUTIONAL
MANDATE THAT THE EXIGENCIES OF THE SITUATION MADE THAT COURSE
IMPERATIVE. 

IT FOLLOWS FROM WHAT WE HAVE SAID THAT MCDONALD'S MOTION FOR
SUPPRESSION OF THE EVIDENCE AND THE RETURN OF THE PROPERTY TO HIM
SHOULD HAVE BEEN GRANTED.  WEEKS V. UNITED STATES, SUPRA; GO-BART
IMPORTING CO. V. UNITED STATES, 282 U.S. 344, 358.  IT WAS, HOWEVER,
DENIED AND THE UNLAWFULLY SEIZED EVIDENCE WAS USED NOT ONLY AGAINST
MCDONALD BUT AGAINST WASHINGTON AS WELL, THE TWO BEING TRIED JOINTLY. 
APART FROM THIS EVIDENCE THERE SEEMS TO HAVE BEEN LITTLE OR NONE
AGAINST WASHINGTON.  EVEN THOUGH WE ASSUME, WITHOUT DECIDING, THAT
WASHINGTON, WHO WAS A GUEST OF MCDONALD, HAD NO RIGHT OF PRIVACY THAT
WAS BROKEN WHEN THE OFFICERS SEARCHED MCDONALD'S ROOM WITHOUT A
WARRANT, WE THINK THAT THE DENIAL OF MCDONALD'S MOTION WAS ERROR THAT
WAS PREJUDICIAL TO WASHINGTON AS WELL.  IN THIS CASE, UNLIKE AGNELLO V.
UNITED STATES, SUPRA, P. 35, THE UNLAWFULLY SEIZED MATERIALS WERE THE
BASIS OF EVIDENCE USED AGAINST THE CODEFENDANT.  IF THE PROPERTY HAD
BEEN RETURNED TO MCDONALD, IT WOULD NOT HAVE BEEN AVAILABLE FOR USE AT
THE TRIAL.  WE CAN ONLY SPECULATE AS TO WHETHER OTHER EVIDENCE WHICH
MIGHT HAVE BEEN USED AGAINST WASHINGTON WOULD HAVE BEEN EQUALLY
PROBATIVE.  REVERSED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT, AND IN THE OPINION
INSOFAR AS IT RELATES TO THE PETITIONER MCDONALD.  WITH RESPECT TO THE
PETITIONER WASHINGTON HE IS OF THE VIEW THAT THE EVIDENCE, HAVING BEEN
ILLEGALLY OBTAINED, WAS INADMISSIBLE.  CF. MALINSKI V. NEW YORK, 324
U.S. 401, OPINION DISSENTING IN PART P. 420 AT PP. 430-432. 

MR. JUSTICE JACKSON, CONCURRING. 

I AGREE WITH THE RESULT AND WITH THE OPINION OF THE COURT.  BUT IT
REJECTS THE SEARCH WHICH TWO COURTS BELOW HAVE SUSTAINED WITHOUT SAYING
WHEREIN IT WAS WRONG.  IT MAY BE HELPFUL TO LOWER COURTS AND TO THE
POLICE THEMSELVES TO STATE WHAT APPEARS TO SOME OF US AS THE REASON
THIS SEARCH IS BAD. 

THE POLICE FOR SEVERAL WEEKS HAD THIS DEFENDANT, MCDONALD, UNDER
SURVEILLANCE.  THE UNITED STATES COMMISSIONER WAS APPROACHED ABOUT A
SEARCH WARRANT BUT, FOR REASONS WHICH DO NOT APPEAR, DECLINED TO ISSUE
IT.  THE ONLY ADDITIONAL INFORMATION WHICH LED THE OFFICERS TO TAKE THE
LAW INTO THEIR OWN HANDS AND MAKE THIS SEARCH WITHOUT A WARRANT WAS
THAT THEY HEARD AN ADDING MACHINE OR A TYPEWRITER - THE WITNESS WAS NOT
SURE WHICH - OPERATING ON THE PREMISES.  CERTAINLY THE SOUND OF AN
ADDING MACHINE OR TYPEWRITER, STANDING ALONE, IS NO INDICATION OF CRIME
AND IT COULD BECOME SIGNIFICANT ONLY WHEN WEIGHED IN CONNECTION WITH
OTHER EVIDENCE.  A MAGISTRATE MIGHT EITHER HAVE ISSUED OR REFUSED A
WARRANT IF REQUEST HAD BEEN MADE. 

HOWEVER, THE OFFICER IN CHARGE OF THE INVESTIGATION TOOK THE MATTER
INTO HIS OWN HANDS.  HE NEITHER HAD NOR SOUGHT A SEARCH WARRANT OR
WARRANT OF ARREST; HE DID NOT THEN HAVE KNOWLEDGE OF A CRIME
SUFFICIENT, EVEN IN HIS OWN OPINION, TO JUSTIFY ARREST, AND HE DID NOT
EVEN KNOW THAT THE SUSPECT, MCDONALD, WAS IN THE ROOMING HOUSE AT THE
TIME.  NEVERTHELESS, HE FORCED OPEN THE WINDOW OF THE LANDLADY'S
BEDROOM AND CLIMBED IN.  HE APPARENTLY WAS IN PLAIN CLOTHES BUT SHOWED
HIS BADGE TO THE FRIGHTENED WOMAN, BRUSHED HER ASIDE AND THEN UNLOCKED
DOORS AND ADMITTED TWO OTHER OFFICERS.  THEY THEN WENT TO THE HALL
OUTSIDE THE ROOM RENTED AND OCCUPIED BY DEFENDANT.  THE OFFICER IN
CHARGE CLIMBED ON A CHAIR AND LOOKED THROUGH A TRANSOM.  SEEING THE
DEFENDANT MCDONALD ENGAGED IN ACTIVITY WHICH HE CONSIDERED TO BE PART
OF THE LOTTERY PROCEDURE, HE ARRESTED HIM AND SEARCHED THE QUARTERS. 
THE GOVERNMENT ARGUED, AND THE COURT BELOW HELD, THAT SINCE THE FORCED
ENTRY INTO THE BUILDING WAS THROUGH THE LANDLADY'S WINDOW, IN A ROOM IN
WHICH THE DEFENDANT AS A TENANT HAD NO RIGHTS, NO OBJECTION TO THIS
MODE OF ENTRY OR TO THE SEARCH THAT FOLLOWED WAS AVAILABLE TO HIM. 

DOUBTLESS A TENANT'S QUARTERS IN A ROOMING OR APARTMENT HOUSE ARE
LEGALLY AS WELL AS PRACTICALLY EXPOSED TO LAWFUL APPROACH BY A GOOD
MANY PERSONS WITHOUT HIS CONSENT OR CONTROL.  HAD THE POLICE BEEN
ADMITTED AS GUESTS OF ANOTHER TENANT OR HAD THE APPROACHES BEEN THROWN
OPEN BY AN OBLIGING LANDLADY OR DOORMAN, THEY WOULD HAVE BEEN LEGALLY
IN THE HALLWAYS.  LIKE ANY OTHER STRANGER, THEY COULD THEN SPY OR
EAVESDROP ON OTHERS WITHOUT BEING TRESPASSERS.  IF THEY PEEPED THROUGH
THE KEYHOLE OR CLIMBED ON A CHAIR OR ON ONE ANOTHER'S SHOULDERS TO LOOK
THROUGH THE TRANSOM, I SHOULD SEE NO GROUNDS ON WHICH THE DEFENDANT
COULD COMPLAIN.  IF IN THIS MANNER THEY, OR ANY PRIVATE CITIZEN, SAW A
CRIME IN THE COURSE OF COMMISSION, AN ARREST WOULD BE PERMISSIBLE. 

BUT IT SEEMS TO ME THAT EACH TENANT OF A BUILDING, WHILE HE HAS NO
RIGHT TO EXCLUDE FROM THE COMMON HALLWAYS THOSE WHO ENTER LAWFULLY,
DOES HAVE A PERSONAL AND CONSTITUTIONALLY PROTECTED INTEREST IN THE
INTEGRITY AND SECURITY OF THE ENTIRE BUILDING AGAINST UNLAWFUL BREAKING
AND ENTRY.  HERE THE POLICE GAINED ACCESS TO THEIR PEEKING POST BY
MEANS THAT WERE NOT MERELY UNAUTHORIZED BUT BY MEANS THAT WERE
FORBIDDEN BY LAW AND DENOUNCED AS CRIMINAL.  IN PRYING UP THE PORCH
WINDOW AND CLIMBING INTO THE LANDLADY'S BEDROOM, THEY WERE GUILTY OF
BREAKING AND ENTERING - A FELONY IN LAW AND A CRIME FAR MORE SERIOUS
THAN THE ONE THEY WERE ENGAGED IN SUPPRESSING.  HAVING FORCED AN ENTRY
WITHOUT EITHER A SEARCH WARRANT OR AN ARREST WARRANT TO JUSTIFY IT, THE
FELONIOUS CHARACTER OF THEIR ENTRY, IT SEEMS TO ME, FOLLOWED EVERY STEP
OF THEIR JOURNEY INSIDE THE HOUSE AND TAINTED ITS FRUITS WITH
ILLEGALITY.  CF. WEEKS V. UNITED STATES, 232 U.S. 383; TAYLOR V. UNITED
STATES, 286 U.S. 1; JOHNSON V. UNITED STATES, 333 U.S. 10. 

EVEN IF ONE WERE TO CONCLUDE THAT URGENT CIRCUMSTANCES MIGHT JUSTIFY
A FORCED ENTRY WITHOUT A WARRANT, NO SUCH EMERGENCY WAS PRESENT IN THIS
CASE.  THIS METHOD OF LAW ENFORCEMENT DISPLAYS A SHOCKING LACK OF ALL
SENSE OF PROPORTION.  WHETHER THERE IS REASONABLE NECESSITY FOR A
SEARCH WITHOUT WAITING TO OBTAIN A WARRANT CERTAINLY DEPENDS SOMEWHAT
UPON THE GRAVITY OF THE OFFENSE THOUGHT TO BE IN PROGRESS AS WELL AS
THE HAZARDS OF THE METHOD OF ATTEMPTING TO REACH IT.  IN THIS CASE THE
POLICE HAD BEEN OVER TWO MONTHS WATCHING THE DEFENDANT MCDONALD.  HIS
CRIMINAL OPERATION, WHILE A SHABBY SWINDLE THAT THE POLICE ARE QUITE
RIGHT IN SUPPRESSING, WAS NOT ONE WHICH ENDANGERED LIFE OR LIMB OR THE
PEACE AND GOOD ORDER OF THE COMMUNITY EVEN IF IT CONTINUED ANOTHER DAY
OR TWO; NEITHER WAS THE RACKET ONE THE DEFENDANT WAS LIKELY TO
ABANDON.  CONDUCT OF THE NUMBERS RACKET IS NOT A SOLITARY VICE,
PRACTICED IN SECRECY AND DISCOVERABLE ONLY BY CRASHING INTO DWELLING
HOUSES.  THE REAL DIFFICULTY IS THAT IT IS SO LITTLE CONDEMNED BY
OTHERWISE LAW-ABIDING PEOPLE THAT IT FLOURISHES WIDELY AND INVOLVES
MULTITUDES OF PEOPLE.  IT IS TO ME A SHOCKING PROPOSITION THAT PRIVATE
HOMES, EVEN QUARTERS IN A TENEMENT, MAY BE INDISCRIMINATELY INVADED AT
THE DISCRETION OF ANY SUSPICIOUS POLICE OFFICER ENGAGED IN FOLLOWING UP
OFFENSES THAT INVOLVE NO VIOLENCE OR THREATS OF IT.  WHILE I SHOULD BE
HUMAN ENOUGH TO APPLY THE LETTER OF THE LAW WITH SOME INDULGENCE TO
OFFICERS ACTING TO DEAL WITH THREATS OR CRIMES OF VIOLENCE WHICH
ENDANGER LIFE OR SECURITY, IT IS NOTABLE THAT FEW OF THE SEARCHES FOUND
BY THIS COURT TO BE UNLAWFUL DEALT WITH THAT CATEGORY OF CRIME.  ALMOST
WITHOUT EXCEPTION, THE OVERZEAL WAS IN SUPPRESSING ACTS NOT MALUM IN SE
BUT ONLY MALUM PROHIBITUM.  FN1  WHILE THE ENTERPRISE OF PARTING FOOLS
FROM THEIR MONEY BY THE "NUMBERS" LOTTERY IS ONE THAT OUGHT TO BE
SUPPRESSED, I DO NOT THINK ITS SUPPRESSION IS MORE IMPORTANT TO SOCIETY
THAN THE SECURITY OF THE PEOPLE AGAINST UNREASONABLE SEARCHES AND
SEIZURES.  WHEN AN OFFICER UNDERTAKES TO ACT AS HIS OWN MAGISTRATE, HE
OUGHT TO BE IN A POSITION TO JUSTIFY IT BY POINTING TO SOME REAL
IMMEDIATE AND SERIOUS CONSEQUENCES IF HE POSTPONED ACTION TO GET A
WARRANT. 

I AM THE LESS RELUCTANT TO REACH THIS CONCLUSION BECAUSE THE METHOD
OF ENFORCING THE LAW EXEMPLIFIED BY THIS SEARCH IS ONE WHICH NOT ONLY
VIOLATES LEGAL RIGHTS OF DEFENDANT BUT IS CERTAIN TO INVOLVE THE POLICE
IN GRAVE TROUBLES IF CONTINUED.  THAT IT DID NOT DO SO ON THIS OCCASION
WAS DUE TO LUCK MORE THAN TO FORESIGHT.  MANY HOMEOWNERS IN THIS CRIME
BESET CITY DOUBTLESS ARE ARMED.  WHEN A WOMAN SEES A STRANGE MAN, IN
PLAIN CLOTHES, PRYING UP HER BEDROOM WINDOW AND CLIMBING IN, HER
NATURAL IMPULSE WOULD BE TO SHOOT.  A PLEA OF JUSTIFIABLE HOMICIDE
MIGHT RESULT AWKWARDLY FOR ENFORCEMENT OFFICERS.  BUT AN OFFICER SEEING
A GUN BEING DRAWN ON HIM MIGHT SHOOT FIRST.  UNDER THE CIRCUMSTANCES OF
THIS CASE, I SHOULD NOT WANT THE TASK OF CONVINCING A JURY THAT IT WAS
NOT MURDER.  I HAVE NO RELUCTANCE IN CONDEMNING AS UNCONSTITUTIONAL A
METHOD OF LAW ENFORCEMENT SO RECKLESS AND SO FRAUGHT WITH DANGER AND
DISCREDIT TO THE LAW ENFORCEMENT AGENCIES THEMSELVES. 

AS TO DEFENDANT WASHINGTON:  HE WAS A GUEST ON THE PREMISES.  HE
COULD HAVE NO IMMUNITY FROM SPYING AND LISTENING BY THOSE RIGHTFULLY IN
THE HOUSE.  BUT EVEN A GUEST MAY EXPECT THE SHELTER OF THE ROOFTREE HE
IS UNDER AGAINST CRIMINAL INTRUSION.  I SHOULD REVERSE AS TO BOTH
DEFENDANTS. 

FN1  FOR EXAMPLE, THE INSTANT CASE INVOLVES A STATUTE FORBIDDING
LOTTERIES IN THE DISTRICT OF COLUMBIA; TRUPIANO V. UNITED STATES, 334
U.S. 699, LIQUOR CONTROL AND REVENUE STATUTES; JOHNSON V. UNITED
STATES, 333 U.S. 10, NARCOTIC CONTROL AND REVENUE STATUTES; NATHANSON
V. UNITED STATES, 290 U.S. 41, LIQUOR CONTROL AND TARIFF STATUTE. 
OTHER CASES INVOLVING LIQUOR CONTROL OR TAXING STATUTES, OR BOTH, ARE
NUMEROUS; SEE, E.G., TAYLOR V. UNITED STATES, 286 U.S. 1; UNITED STATES
V. LEFKOWITZ, 285 U.S. 452; GO-BART IMPORTING CO. V. UNITED STATES, 282
U.S. 344; GAMBINO V. UNITED STATES, 275 U.S. 310; AMOS V. UNITED
STATES, 255 U.S. 313.  AGNELLO V. UNITED STATES, 269 U.S. 20, INVOLVED
COCAINE CONTROL AND TAXING STATUTES; AND WEEKS V. UNITED STATES, 232
U.S. 383, INVOLVED A STATUTE FORBIDDING USE OF THE MAILS TO DISTRIBUTE
LOTTERY TICKETS. 

MR. JUSTICE FRANKFURTER, HAVING JOINED IN THE COURT'S OPINION, ALSO
CONCURS IN THIS OPINION. 

MR. JUSTICE BURTON, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE REED
JOIN, DISSENTING. 

IN OUR OPINION THE JUDGMENT SHOULD HAVE BEEN AFFIRMED.  THIS IS A
CASE OF A LAWFUL ARREST FOLLOWED BY A SEIZURE OF THE INSTRUMENTS OF THE
CRIME WHICH THEN WERE IN PLAIN SIGHT.  THERE WAS NO SEARCH.  THERE IS,
THEREFORE, NO ISSUE AS TO THE NEED FOR A SEARCH WARRANT.  IN REGARD TO
THE ARREST, THE ONLY ISSUE IS AS TO THE NEED FOR A WARRANT OF ARREST TO
MAKE IT LAWFUL.  FOR THE REASONS STATED BELOW, WE BELIEVE THE ARREST
FOR THE CRIME COMMITTED IN THE PRESENCE OF THE OFFICERS WAS CLEARLY
LAWFUL WITHOUT THE ISSUANCE OF A FORMAL WARRANT FOR IT.  AT THE TIME OF
THE RAID, THERE WERE SUFFICIENT GROUNDS TO JUSTIFY THE POLICE IN
SUSPECTING THAT THE UNLAWFUL LOTTERY, WHICH LATER PROVED TO BE IN
OPERATION, WAS IN PROGRESS WITHIN THE BUILDING WHICH HAD BEEN UNDER
SURVEILLANCE.  A "NUMBERS GAME," SUCH AS WAS THERE CONDUCTED, IS A FORM
OF LOTTERY GENERALLY REGARDED AS DETRIMENTAL TO THE COMMUNITIES WHERE
IT FLOURISHES.  IT IS HIGHLY PROFITABLE TO ITS PRINCIPALS AT THE
EXPENSE OF ITS PLAYERS.  YET IT IS SO SIMPLE IN OPERATION THAT ITS
HEADQUARTERS ARE READILY MOVABLE.  ACCORDINGLY, IT REQUIRES SUBSTANTIAL
POLICE EFFORT TO STOP SUCH UNLAWFUL OPERATIONS AT THEIR SOURCE.  IT IS
DIFFICULT TO LOCATE THE PRINCIPALS AND IT IS STILL MORE DIFFICULT TO
SECURE PROOF SUFFICIENT TO CONVICT THEM UNLESS THEY ARE ARRESTED IN THE
MIDST OF ONE OF THE COMPARATIVELY BRIEF PERIODICAL SESSIONS WHEN THE
ESSENTIAL COMPUTATIONS FOR THE OPERATION OF THE LOTTERY ARE BEING
MADE.  SUCH SESSIONS ARE HELD WHEN THE OPERATORS DETERMINE THE DAY'S
WINNERS AND ARRANGE FOR THE DISTRIBUTION AMONG THOSE WINNERS OF THEIR
RESPECTIVE SHARES OF THE CASH WHICH HAS BEEN COLLECTED THROUGH A
NETWORK OF WRITERS, COLLECTORS AND RUNNERS. 

UNDER THE CIRCUMSTANCES, A PROMPT ENTRY BY THE POLICE WAS JUSTIFIED
WHEN THEY REASONABLY SUSPECTED THAT THE CRIME OF OPERATING A NUMBERS
LOTTERY WAS BEING COMMITTED AT THAT MOMENT.  THE PETITIONERS, AS
TENANTS OR OCCUPANTS OF A ROOM, HAD NO RIGHT TO OBJECT TO THE PRESENCE
OF OFFICERS IN THE HALL OF THE ROOMING HOUSE.  THE ACTUAL OBSERVANCE BY
THE POLICE OF THE COMMISSION OF THE SUSPECTED CRIME THEREUPON JUSTIFIED
THEIR IMMEDIATE ARREST OF THOSE ENGAGED IN IT WITHOUT SECURING A
WARRANT FOR SUCH ARREST. 

THIS CASE IS PRIMARILY AN INSTANCE WHERE THE POLICE SUCCEEDED IN
SURPRISING THE PETITIONERS IN THE MIDST OF THE UNLAWFUL OPERATIONS
WHICH THE POLICE SUSPECTED WERE BEING CARRIED ON PERIODICALLY BY
MCDONALD AS A PRINCIPAL OPERATOR AND BY OTHERS AT THE PLACE IN
QUESTION.  IT IS GENERALLY NOT A VIOLATION OF ANY CONSTITUTIONAL
PRIVILEGE OF THE ACCUSED FOR A POLICE OFFICER TO ARREST SUCH ACCUSED
WITHOUT A WARRANT OF ARREST IF THE ARREST IS MADE AT THE VERY MOMENT
WHEN THE ACCUSED IS ENGAGED IN A VIOLATION OF LAW IN THE PRESENCE OF
THE OFFICER.  IT IS GENERALLY NOT A VIOLATION OF ANY CONSTITUTIONAL
PRIVILEGE OF SUCH ACCUSED FOR THE ARRESTING OFFICER THEREUPON TO SEIZE
AT LEAST THE ARTICLES THEN IN PLAIN SIGHT AND WHICH HAVE BEEN SEEN BY
THE OFFICER TO HAVE BEEN USED IN THE COMMISSION OF THE CRIME FOR WHICH
THE ACCUSED IS BEING ARRESTED.  WE SEE NO ADEQUATE REASON FOR A
DISTINCTION IN FAVOR OF THE ACCUSED HERE.  IN THIS CASE THERE WAS NO
SEARCH FOR THE SEIZED PROPERTY BECAUSE ITS PRESENCE WAS OBVIOUS.  ALSO,
THERE WAS NO SEIZURE OF ANYTHING OTHER THAN THE ARTICLES WHICH THE
ARRESTING OFFICER SAW IN USE IN SOME MATERIAL CONNECTION WITH THE CRIME
WHICH THE ACCUSED COMMITTED IN THE OFFICER'S PRESENCE.  IT, THEREFORE,
WAS NOT A VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED TO
PERMIT SUCH SEIZED ARTICLES TO BE PRESENTED IN EVIDENCE IN SECURING
THEIR CONVICTIONS OF THE CRIMES WHICH THEY WERE CHARGED WITH COMMITTING
IN THE PRESENCE OF THE ARRESTING OFFICER. 
..END :





VERMILYA-BROWN CO. V. CONNELL, 335 U.S. 377 


NO. 22.  ARGUED OCTOBER 15, 1948.  - DECIDED DECEMBER 6, 1948.  - 164
F.2D 924, AFFIRMED. 


IF OTHERWISE APPLICABLE, THE FAIR LABOR STANDARDS ACT COVERS EMPLOYEES
OF AMERICAN CONTRACTORS ENGAGED IN THE CONSTRUCTION OF A MILITARY BASE
FOR THE UNITED STATES IN AN AREA IN BERMUDA LEASED BY GREAT BRITAIN TO
THE UNITED STATES FOR 99 YEARS - EVEN THOUGH THE LEASED AREA IS UNDER
THE SOVEREIGNTY OF GREAT BRITAIN AND IS NOT TERRITORY OF THE UNITED
STATES IN A POLITICAL SENSE.  PP. 378-390. 

1.  THE QUESTION WHETHER THE ACT APPLIES IN THIS AREA IS NOT A
POLITICAL QUESTION BEYOND THE COMPETENCE OF COURTS TO DECIDE.  P. 380. 

2.  UNDER THE POWER GRANTED BY THE CONSTITUTION, ART. IV, SEC. 3, CL.
2, TO MAKE "ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY
OR OTHER PROPERTY BELONGING TO THE UNITED STATES," CONGRESS HAS POWER
TO REGULATE LABOR CONTRACTS WHERE THE INCIDENTS REGULATED OCCUR IN
AREAS UNDER THE CONTROL, THOUGH NOT WITHIN THE TERRITORIAL JURISDICTION
OR SOVEREIGNTY, OF THE UNITED STATES.  P. 381. 

3.  UNDER THE TERMS OF THE PARTICULAR LEASE UNDER WHICH THIS AREA WAS
LEASED BY GREAT BRITAIN TO THE UNITED STATES, THE UNITED STATES IS
AUTHORIZED BY THE LESSOR TO PROVIDE FOR MAXIMUM HOURS AND MINIMUM WAGES
FOR EMPLOYERS AND EMPLOYEES WITHIN THE AREA.  PP. 382-383. 

4.  NEITHER THE LACK OF SPECIFIC REFERENCE TO LEASED AREAS IN THE
LEGISLATIVE HISTORY OF THE FAIR LABOR STANDARDS ACT NOR THE FACT THAT
THIS PARTICULAR BERMUDA BASE WAS ACQUIRED AFTER THE PASSAGE OF THE ACT
PREVENTS THE ACT FROM COVERING SUCH AREAS.  PP. 383-385. 

5.  IN THE CIRCUMSTANCES OF THIS CASE AND IN THE LIGHT OF THE BROAD
PURPOSE OF THE ACT, OF THE FACT THAT THE ACT APPLIES TO FAROFF ISLANDS
WHOSE ECONOMY DIFFERS MARKEDLY FROM OUR OWN, AND OF THE FACT THAT
CONGRESS HAS EXTENDED THE COVERAGE OF OTHER ACTS TO SUCH BASES, THE
WORD "POSSESSION," USED BY CONGRESS TO DEFINE THE GEOGRAPHICAL COVERAGE
OF THIS ACT, IS CONSTRUED AS MAKING THE ACT APPLICABLE TO EMPLOYER
EMPLOYEE RELATIONSHIPS IN THE AREA OF FOREIGN TERRITORY ON BERMUDA
UNDER LEASE FOR A MILITARY BASE.  PP. 386-390. 

VERMILYA-BROWN CO., INC. ET AL. V. CONNELL ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

CERTAIN EMPLOYEES OF AMERICAN CONTRACTORS ENGAGED IN THE CONSTRUCTION
OF A MILITARY BASE FOR THE UNITED STATES IN AN AREA ON BERMUDA LEASED
BY GREAT BRITAIN TO THE UNITED STATES SUED FOR OVERTIME PAY UNDER THE
FAIR LABOR STANDARDS ACT, 52 STAT. 1060, 29 U.S.C. SECS. 201 ET SEQ. ON
DEFENDANTS' MOTION FOR A SUMMARY JUDGMENT, THE DISTRICT COURT DISMISSED
THE COMPLAINT ON THE GROUND THAT THE APPLICABILITY OF THE ACT DEPENDED
UPON A POLITICAL QUESTION OUTSIDE OF JUDICIAL POWER.  73 F.SUPP.  860. 
THE COURT OF APPEALS REVERSED.  164 F.2D 924.  THIS COURT GRANTED
CERTIORARI.  333 U.S. 859.  AFFIRMED, P. 390. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE BRINGS BEFORE US FOR REVIEW THE APPLICABILITY OF THE FAIR
LABOR STANDARDS ACT OF 1938, 52 STAT. 1060, TO EMPLOYEES ALLEGEDLY
ENGAGED IN COMMERCE OR THE PRODUCTION OF GOODS FOR COMMERCE ON A
LEASEHOLD OF THE UNITED STATES, LOCATED ON THE CROWN COLONY OF
BERMUDA. 

THE LEASEHOLD, A MILITARY BASE, WAS OBTAINED BY THE UNITED STATES
THROUGH A LEASE EXECUTED BY THE BRITISH GOVERNMENT.  THIS LEASE WAS THE
RESULT OF NEGOTIATIONS ADEQUATELY SUMMARIZED FOR CONSIDERATION BY THE
LETTERS OF THE MARQUESS OF LOTHIAN, THE BRITISH AMBASSADOR TO THE
UNITED STATES, OF DATE SEPTEMBER 2, 1940; THE REPLY OF MR. CORDELL
HULL, THEN OUR SECRETARY OF STATE, OF THE SAME DATE; AND THE AGREEMENT
OF MARCH 27, 1941, BETWEEN THE TWO NATIONS TO FURTHER EFFECTUATE THE
DECLARATIONS OF THE AMBASSADOR IN HIS LETTER.  FN1 

THE FAIR LABOR STANDARDS ACT COVERS COMMERCE "AMONG THE SEVERAL
STATES OR FROM ANY STATE TO ANY PLACE OUTSIDE THEREOF."  STATE MEANS
"ANY STATE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA OR ANY
TERRITORY OR POSSESSION OF THE UNITED STATES."  SEC. 3(B) AND (C) OF
THE ACT. 

CERTAIN EMPLOYEES OF CONTRACTORS WHO HAD CONTRACTS FOR WORK FOR THE
UNITED STATES ON THE BERMUDA BASE BROUGHT THIS SUIT UNDER SEC. 16(B) OF
THE ACT FOR RECOVERY OF UNPAID OVERTIME COMPENSATION AND DAMAGES,
CLAIMED TO BE DUE THEM FOR THE EMPLOYER'S VIOLATION OF SEC. 7,
REQUIRING OVERTIME COMPENSATION.  WE DO NOT ENTER INTO ANY
CONSIDERATION OF THE EMPLOYEES' RIGHT TO RECOVER IF THE FAIR LABOR
STANDARDS ACT IS APPLICABLE TO EMPLOYMENT ON THE BERMUDA BASE, FOR THE
COMPLAINT WAS DISMISSED ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON
THE GROUND THAT THE APPLICABILITY DEPENDED UPON THE "SOVEREIGN
JURISDICTION OF THE UNITED STATES," THAT THE EXECUTIVE AND LEGISLATIVE
BRANCHES OF THE GOVERNMENT HAD INDICATED THAT SUCH LEASED AREAS WERE
NOT UNDER OUR SOVEREIGN JURISDICTION AND THAT THIS WAS A POLITICAL
QUESTION OUTSIDE OF JUDICIAL POWER.  CONNELL V. VERMILYA-BROWN CO., 73
F.SUPP.  860.  THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT, HOLDING THAT THE ACT APPLIED TO THE BERMUDA BASE, REVERSED
THIS JUDGMENT AND REMANDED THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS ON THE MERITS.  164 F.2D 924.  OUR AFFIRMANCE OF THIS
JUDGMENT APPROVES THAT DISPOSITION OF THE APPEAL. 

ON ACCOUNT OF THE OBVIOUS IMPORTANCE OF THE CASE FROM THE STANDPOINT
OF ADMINISTRATION, IN VIEW OF THE NUMBER OF LEASED AREAS OCCUPIED BY
THE UNITED STATES, WE GRANTED CERTIORARI.  333 U.S. 859. 

(1)  WE SHALL CONSIDER FIRST OUR POWER TO EXPLORE THE PROBLEM AS TO
WHETHER THE FAIR LABOR STANDARDS ACT COVERS THIS LEASED AREA.  OR, TO
PHRASE IT DIFFERENTLY, IS THIS A POLITICAL QUESTION BEYOND THE
COMPETENCE OF COURTS TO DECIDE?  CF. COLEMAN V. MILLER, 307 U.S. 433,
450; COLEGROVE V. GREEN, 328 U.S. 549, 552.  THERE IS NOTHING THAT
INDICATES TO US THAT THIS COURT SHOULD REFUSE TO DECIDE A CONTROVERSY
BETWEEN LITIGANTS BECAUSE THE GEOGRAPHICAL COVERAGE OF THIS STATUTE IS
INVOLVED.  RECOGNIZING THAT THE DETERMINATION OF SOVEREIGNTY OVER AN
AREA IS FOR THE LEGISLATIVE AND EXECUTIVE DEPARTMENTS, JONES V. UNITED
STATES, 137 U.S. 202, DOES NOT DEBAR COURTS FROM EXAMINING THE STATUS
RESULTING FROM PRIOR ACTION.  DE LIMA V. BIDWELL, 182 U.S. 1; HOOVEN &
ALLISON CO. V. EVATT, 324 U.S. 652.  WE HAVE NO OCCASION FOR THIS
OPINION TO DIFFER FROM THE VIEW AS TO SOVEREIGNTY EXPRESSED "FOR THE
SECRETARY OF STATE" BY THE LEGAL ADVISER OF THE DEPARTMENT IN HIS
LETTER OF JANUARY 30, 1948, TO THE ATTORNEY GENERAL IN RELATION TO
FURTHER LEGAL STEPS IN THE PRESENT CONTROVERSY AFTER THE JUDGMENT OF
THE COURT OF APPEALS.  IT WAS THERE STATED: 

"THE ARRANGEMENTS UNDER WHICH THE LEASED BASES WERE ACQUIRED FROM
GREAT BRITAIN DID NOT AND WERE NOT INTENDED TO TRANSFER SOVEREIGNTY
OVER THE LEASED AREAS FROM GREAT BRITAIN TO THE UNITED STATES." 

NOTHING IN THIS OPINION IS INTENDED TO INTIMATE THAT WE HAVE ANY
DIFFERENT VIEW FROM THAT EXPRESSED FOR THE SECRETARY OF STATE.  IN THE
LIGHT OF THE STATEMENT OF THE DEPARTMENT OF STATE, WE PREDICATE OUR
VIEWS ON THE ISSUE PRESENTED UPON THE POSTULATE THAT THE LEASED AREA IS
UNDER THE SOVEREIGNTY OF GREAT BRITAIN AND THAT IT IS NOT TERRITORY OF
THE UNITED STATES IN A POLITICAL SENSE, THAT IS, A PART OF ITS NATIONAL
DOMAIN. 

(2)  WE HAVE NO DOUBT THAT CONGRESS HAS POWER, IN CERTAIN SITUATIONS,
TO REGULATE THE ACTIONS OF OUR CITIZENS OUTSIDE THE TERRITORIAL
JURISDICTION OF THE UNITED STATES WHETHER OR NOT THE ACT PUNISHED
OCCURRED WITHIN THE TERRITORY OF A FOREIGN NATION.  THIS WAS
ESTABLISHED AS TO CRIMES DIRECTLY AFFECTING THE GOVERNMENT IN UNITED
STATES V. BOWMAN, 260 U.S. 94.  THIS COURT THERE POINTED OUT, P. 102,
THAT CLEARLY SUCH LEGISLATION CONCERNING OUR CITIZENS COULD NOT OFFEND
THE DIGNITY OR RIGHT OF SOVEREIGNTY OF ANOTHER NATION.  SEE BLACKMER V.
UNITED STATES, 284 U.S. 421, 437; SKIRIOTES V. FLORIDA, 313 U.S. 69,
73, 78.  A FORTIORI CIVIL CONTROLS MAY APPLY, WE THINK, TO LIABILITIES
CREATED BY STATUTORY REGULATION OF LABOR CONTRACTS, EVEN IF ALIENS MAY
BE INVOLVED, WHERE THE INCIDENTS REGULATED OCCUR ON AREAS UNDER THE
CONTROL, THOUGH NOT WITHIN THE TERRITORIAL JURISDICTION OR SOVEREIGNTY,
OF THE NATION ENACTING THE LEGISLATION.  FN2  THIS IS IMPLICITLY
CONCEDED BY ALL PARTIES.  THIS POWER IS PLACED SPECIFICALLY IN CONGRESS
BY VIRTUE OF THE AUTHORIZATION FOR "NEEDFUL RULES AND REGULATIONS
RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED
STATES."  CONSTITUTION, ART. IV, SEC. 3, CL. 2.  FN3  IT DOES NOT
DEPEND UPON SOVEREIGNTY IN THE POLITICAL OR ANY SENSE OVER THE
TERRITORY.  SO THE ADMINISTRATOR OF THE WAGE-HOUR DIVISION HAS ISSUED A
STATEMENT OF GENERAL POLICY OR INTERPRETATION THAT DIRECTS ALL OFFICERS
AND AGENCIES OF HIS DIVISION TO APPLY THIS ACT TO THE CANAL ZONE,
ADMITTEDLY TERRITORY OVER WHICH WE DO NOT HAVE SOVEREIGNTY.  29 C.F.R.,
1947 SUPP., PP. 4392-93. 

(3)  IN THIS VIEW OF THE RELATIONSHIP OF OUR GOVERNMENT TO A LEASED
AREA, THE TERMS OF THIS PARTICULAR LEASE BECOME IMPORTANT.  REFERENCE,
NOTE 1, SUPRA, HAS BEEN MADE TO THE UNITED STATES STATUTES WHERE THE
TITLE DOCUMENTS ARE READILY AVAILABLE.  IT IS UNNECESSARY TO PRINT THEM
HERE IN FULL.  IN THE MARGIN ARE EXTRACTS THAT INDICATE THEIR MEANING
AS TO THE CONTROL INTENDED TO BE GRANTED.  FN4  UNDER THIS AGREEMENT WE
HAVE NO DOUBT THAT THE UNITED STATES IS AUTHORIZED BY THE LESSOR TO
PROVIDE FOR MAXIMUM HOURS AND MINIMUM WAGES FOR EMPLOYERS AND EMPLOYEES
WITHIN THE AREA, AND THE QUESTION OF WHETHER THE FAIR LABOR STANDARDS
ACT APPLIES IS ONE OF STATUTORY CONSTRUCTION, NOT LEGISLATIVE POWER. 

(4)  AT THE TIME OF THE ENACTMENT OF THE ACT, JUNE 25, 1938, THE
UNITED STATES HAD NO LEASED BASE IN BERMUDA.  THIS COUNTRY DID HAVE A
LEASE FROM THE REPUBLIC OF CUBA OF AN AREA AT GUANTANAMO BAY FOR A
COALING OR NAVAL STATION "FOR THE TIME REQUIRED FOR THE PURPOSES OF
COALING AND NAVAL STATIONS."  THE UNITED STATES WAS GRANTED BY THE
CUBAN LEASE SUBSTANTIALLY THE SAME RIGHTS AS IT HAS IN THE BERMUDA
LEASE.  FN5  THE TIME LIMITS OF THE GRANT WERE REDEFINED ON JUNE 9,
1934, AS EXTENDING UNTIL AGREEMENT FOR ABROGATION OR UNILATERAL
ABANDONMENT BY THE UNITED STATES.  A SIMILAR ARRANGEMENT EXISTED IN
REGARD TO THE PANAMA CANAL ZONE.  FN6  FURTHER, IN THE PHILIPPINE
INDEPENDENCE ACTS OF JANUARY 17, 1933, AND MARCH 24, 1934, PROVISIONS
EXISTED LOOKING TOWARD THE RETENTION OF MILITARY AND OTHER BASES IN THE
PHILIPPINE ISLANDS.  47 STAT. 761, SECS. 5 AND 10; 48 STAT. 456, SECS.
5 AND 10.  FN7  A CONVENTION BETWEEN THE GOVERNMENTS OF NICARAGUA AND
THE UNITED STATES OF AMERICA, PROCLAIMED JUNE 24, 1916, 39 STAT. 1661,
GAVE THE UNITED STATES FOR 99 YEARS "SOVEREIGN AUTHORITY" OVER CERTAIN
ISLANDS IN THE CARIBBEAN SEA.  FN8  NONE OF THESE INTERNATIONAL
ARRANGEMENTS WERE DISCUSSED IN REPORTS OR THE DEBATES CONCERNING THE
SCOPE OF THE FAIR LABOR STANDARDS ACT.  AFTER THE PASSAGE OF THE FAIR
LABOR STANDARDS ACT AND DURING WORLD WAR II, A NUMBER OF BASES FOR
MILITARY OPERATIONS WERE LEASED BY THE UNITED STATES NOT ONLY ON
TERRITORY OF THE BRITISH COMMONWEALTH OF NATIONS BUT ON THAT OF OTHER
SOVEREIGNTIES ALSO.  THE PROVISIONS OF THESE LEASES PARALLELED IN MANY
RESPECTS THE BERMUDA LEASE.  FN9 

NEITHER THIS LACK OF SPECIFIC REFERENCE IN THE LEGISLATIVE HISTORY TO
LEASED AREAS, HOWEVER, NOR THE FACT THAT THE PARTICULAR BERMUDA BASE
WAS ACQUIRED AFTER THE PASSAGE OF THE ACT SEEMS TO US DECISIVE OF ITS
COVERAGE.  "THE REACH OF THE ACT IS NOT SUSTAINED OR OPPOSED BY THE
FACT THAT IT IS SOUGHT TO BRING NEW SITUATIONS UNDER ITS TERMS."  FN10
THE SHERMAN ACT OF 1890, A DATE WHEN WE HAD NO INSULAR POSSESSIONS, WAS
HELD BY ITS USE OF THE WORD "TERRITORY" IN ITS SEC. 3 TO BE APPLICABLE
IN PUERTO RICO, A DEPENDENCY ACQUIRED BY THE TREATY OF PARIS IN 1898. 
FN11  THE ANSWER AS TO THE SCOPE OF THE WAGE-HOUR ACT LIES IN THE
PURPOSE OF CONGRESS IN DEFINING ITS REACH. 

(5)  THE POINT OF STATUTORY CONSTRUCTION FOR OUR DETERMINATION IS AS
TO WHETHER THE WORD "POSSESSION," USED BY CONGRESS TO BOUND THE
GEOGRAPHICAL COVERAGE OF THE FAIR LABOR STANDARDS ACT, FIXES THE LIMITS
OF THE ACT'S SCOPE SO AS TO INCLUDE THE BERMUDA BASE.  THE WORD
"POSSESSION" IS NOT A WORD OF ART, DESCRIPTIVE OF A RECOGNIZED
GEOGRAPHICAL OR GOVERNMENTAL ENTITY.  WHAT WAS SAID OF "TERRITORIES" IN
THE SHELL CO. CASE, 302 U.S. 253, AT 258, IS APPLICABLE: 

"WORDS GENERALLY HAVE DIFFERENT SHADES OF MEANING, AND ARE TO BE
CONSTRUED IF REASONABLY POSSIBLE TO EFFECTUATE THE INTENT OF THE
LAWMAKERS; AND THIS MEANING IN PARTICULAR INSTANCES IS TO BE ARRIVED AT
NOT ONLY BY A CONSIDERATION OF THE WORDS THEMSELVES, BUT BY
CONSIDERING, AS WELL, THE CONTEXT, THE PURPOSES OF THE LAW, AND THE
CIRCUMSTANCES UNDER WHICH THE WORDS WERE EMPLOYED." 

THE WORD "POSSESSION" HAS BEEN EMPLOYED IN A NUMBER OF STATUTES BOTH
BEFORE AND SINCE THE FAIR LABOR STANDARDS ACT TO DESCRIBE THE AREAS TO
WHICH VARIOUS CONGRESSIONAL STATUTES APPLY.  FN12  WE DO NOT FIND THAT
THESE EXAMPLES SUFFICIENTLY OUTLINE THE MEANING OF THE WORD TO FURNISH
A DEFINITION THAT WOULD INCLUDE OR EXCLUDE THIS BASE.  WHILE THE
GENERAL PURPOSE OF THE CONGRESS IN THE ENACTMENT OF THE FAIR LABOR
STANDARDS ACT IS CLEAR,  FN13  NO SUCH DEFINITE INDICATION OF THE
PURPOSE TO INCLUDE OR EXCLUDE LEASED AREAS, SUCH AS THE BERMUDA BASE,
IN THE WORD "POSSESSION" APPEARS.  WE CANNOT EVEN SAY, "WE SEE WHAT YOU
ARE DRIVING AT, BUT YOU HAVE NOT SAID IT, AND THEREFORE WE SHALL GO ON
AS BEFORE."  FN14  UNDER SUCH CIRCUMSTANCES, OUR DUTY AS A COURT IS TO
CONSTRUE THE WORD "POSSESSION" AS OUR JUDGMENT INSTRUCTS US THE
LAWMAKERS, WITHIN CONSTITUTIONAL LIMITS, WOULD HAVE DONE HAD THEY ACTED
AT THE TIME OF THE LEGISLATION WITH THE PRESENT SITUATION IN MIND. 

THE WORD "POSSESSION" IN THE ACT INCLUDES FAR-OFF ISLANDS WHOSE
ECONOMY DIFFERS MARKEDLY FROM OUR OWN.  THUS THE EMPLOYEES OF PUERTO
RICO, GUAM, THE GUANO ISLANDS, SAMOA AND THE VIRGIN ISLANDS HAVE THE
PROTECTION OF THE ACT.  SEE 29 C.F.R., 1947 SUPP., 4393.  SINCE DRASTIC
CHANGE IN LOCAL ECONOMY WAS NOT A DETERRENT IN THESE INSTANCES, THERE
IS NO REASON FOR SAYING THAT THE WAGE-HOUR PROVISIONS OF THE ACT WERE
NOT INTENDED TO BRING THESE MINIMUM CHANGES INTO THE LABOR MARKET OF
THE BASES.  FN15  SINCE ITS PASSAGE OF THE ACT, CONGRESS HAS EXTENDED
THE COVERAGE OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT
TO THE BASES ACQUIRED SINCE JANUARY 1, 1940, AND TO GUANTANAMO BAY. 
FN16  WHEN ONE READS THE COMPREHENSIVE DEFINITION OF THE REACH OF THE
FAIR LABOR STANDARDS ACT, IT IS DIFFICULT TO FORMULATE A BOUNDARY TO
ITS COVERAGE SHORT OF AREAS OVER WHICH THE POWER OF CONGRESS EXTENDS,
BY OUR SOVEREIGNTY OR BY VOLUNTARY GRANT OF THE AUTHORITY BY THE
SOVEREIGN LESSOR TO LEGISLATE UPON MAXIMUM HOURS AND MINIMUM WAGES. 
UNDER THE TERMS OF THE LEASE, WE FEEL SURE THAT THE HOUSE OF ASSEMBLY
OF BERMUDA WOULD NOT ALSO UNDERTAKE LEGISLATION SIMILAR TO OUR FAIR
LABOR STANDARDS ACT TO CONTROL LABOR RELATIONS ON THE BASE.  SINCE
CITIZENS OF THIS COUNTRY WOULD BE NUMEROUS AMONG EMPLOYEES ON THE
BASES, THE NATURAL LEGISLATIVE IMPULSE WOULD BE TO GIVE THESE EMPLOYEES
THE SAME PROTECTION THAT WAS GIVEN THOSE SIMILARLY EMPLOYED ON THE
ISLANDS OF THE PACIFIC. 

UNDER SUBDIVISIONS 2 AND 3, SUPRA, WE HAVE POINTED OUT THAT THE POWER
RESTS IN CONGRESS UNDER OUR CONSTITUTION AND THE PROVISIONS OF THE
LEASE TO REGULATE LABOR RELATIONS ON THE BASE.  WE HAVE ALSO POINTED
OUT THAT IT IS A MATTER OF STATUTORY INTERPRETATION AS TO WHETHER OR
NOT STATUTES ARE EFFECTIVE BEYOND THE LIMITS OF NATIONAL SOVEREIGNTY. 
IT DEPENDS UPON THE PURPOSE OF THE STATUTE.  WHERE AS HERE THE PURPOSE
IS TO REGULATE LABOR RELATIONS IN AN AREA VITAL TO OUR NATIONAL LIFE,
IT SEEMS REASONABLE TO INTERPRET ITS PROVISIONS TO HAVE FORCE WHERE THE
NATION HAS SOLE POWER, RATHER THAN TO LIMIT THE COVERAGE TO
SOVEREIGNTY.  SUCH AN INTERPRETATION IS CONSONANT WITH THE
ADMINISTRATOR'S INCLUSION OF THE PANAMA CANAL ZONE WITHIN THE MEANING
OF "POSSESSION."    WE THINK THESE FACTS INDICATE AN INTENTION ON THE
PART OF CONGRESS IN ITS USE OF THE WORD "POSSESSION" TO HAVE THE ACT
APPLY TO EMPLOYER-EMPLOYEE RELATIONSHIPS ON FOREIGN TERRITORY UNDER
LEASE FOR BASES.  SUCH A CONSTRUCTION SEEMS TO US TO CARRY OUT THE
REMEDIAL ENACTMENT IN ACCORD WITH THE PURPOSE OF CONGRESS.  AFFIRMED. 

FN1  55 STAT. 1560, 1572, 1576, 1590. 

THOSE DOCUMENTS ARE PUBLISHED IN DEPARTMENT OF STATE PUBLICATION NO.
1726, EXECUTIVE AGREEMENT SERIES 235. 

FN2  NO DUE PROCESS QUESTION ARISES FROM THIS EXTENSION OF
LEGISLATION OVER SUCH CONTROLLED AREAS SUCH AS WAS CONSIDERED TO BAR
STATE ACTION CONCERNING CONTRACTS MADE AND TO BE PERFORMED BEYOND THE
BOUNDARIES OF A STATE.  CF. HOME INS. CO. V. DICK, 281 U.S. 397, 407,
WITH ALASKA PACKERS ASSN. V. COMM'N, 294 U.S. 532, 541. 

FN3  CF. ASHWANDER V. T.V.A., 297 U.S. 288, 330, ET SEQ. 

FN4  55 STAT. 1560: 

ARTICLE I, "(1)  THE UNITED STATES SHALL HAVE ALL THE RIGHTS, POWER
AND AUTHORITY WITHIN THE LEASED AREAS WHICH ARE NECESSARY FOR THE
ESTABLISHMENT, USE, OPERATION AND DEFENCE THEREOF, OR APPROPRIATE FOR
THEIR CONTROL,  ...  " 

ARTICLE XI, "(4)  IT IS UNDERSTOOD THAT A LEASED AREA IS NOT A PART
OF THE TERRITORY OF THE UNITED STATES FOR THE PURPOSE OF COASTWISE
SHIPPING LAWS SO AS TO EXCLUDE BRITISH VESSELS FROM TRADE BETWEEN THE
UNITED STATES AND THE LEASED AREAS."  P. 1565. 

ARTICLE XIII, "(1)  THE IMMIGRATION LAWS OF THE TERRITORY SHALL NOT
OPERATE OR APPLY SO AS TO PREVENT ADMISSION INTO THE TERRITORY, FOR THE
PURPOSES OF THIS AGREEMENT, OF ANY MEMBER OF THE UNITED STATES FORCES
POSTED TO A LEASED AREA OR ANY PERSON (NOT BEING A NATIONAL OF A POWER
AT WAR WITH HIS MAJESTY THE KING) EMPLOYED BY, OR UNDER A CONTRACT
WITH, THE GOVERNMENT OF THE UNITED STATES IN CONNECTION WITH THE
CONSTRUCTION, MAINTENANCE, OPERATION OR DEFENCE OF THE BASES IN THE
TERRITORY; BUT SUITABLE ARRANGEMENTS WILL BE MADE BY THE UNITED STATES
TO ENABLE SUCH PERSONS TO BE READILY IDENTIFIED AND THEIR STATUS TO BE
ESTABLISHED."  P. 1565. 

ARTICLE XIV, "(1)  NO IMPORT, EXCISE, CONSUMPTION OR OTHER TAX, DUTY
OR IMPOST SHALL BE CHARGED ON - 

 .         .         .         .         . 

"(C)  GOODS CONSIGNED TO THE UNITED STATES AUTHORITIES FOR THE USE OF
INSTITUTIONS UNDER GOVERNMENT CONTROL KNOWN AS POST EXCHANGES, SHIPS'
SERVICE STORES, COMMISSARY STORES OR SERVICE CLUBS, OR FOR SALE THEREAT
TO MEMBERS OF THE UNITED STATES FORCES, OR CIVILIAN EMPLOYEES OF THE
UNITED STATES BEING NATIONALS OF THE UNITED STATES AND EMPLOYED IN
CONNECTION WITH THE BASES, OR MEMBERS OF THEIR FAMILIES RESIDENT WITH
THEM AND NOT ENGAGED IN ANY BUSINESS OR OCCUPATION IN THE TERRITORY;"
P. 1566. 

ARTICLE XXIX, "DURING THE CONTINUANCE OF ANY LEASE, NO LAWS OF THE
TERRITORY WHICH WOULD DEROGATE FROM OR PREJUDICE ANY OF THE RIGHTS
CONFERRED ON THE UNITED STATES BY THE LEASE OR BY THIS AGREEMENT SHALL
BE APPLICABLE WITHIN THE LEASED AREA, SAVE WITH THE CONCURRENCE OF THE
UNITED STATES."  P. 1570. 

THERE ARE ALSO ARTICLES ARRANGING FOR POSTAL FACILITIES AND TAX
EXEMPTIONS. 

FN5  1 MALLOY, TREATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTOCOLS
AND AGREEMENTS (S. DOC. NO. 357, 61ST CONG., 2D SESS.) 359: 

"WHILE ON THE ONE HAND THE UNITED STATES RECOGNIZES THE CONTINUANCE
OF THE ULTIMATE SOVEREIGNTY OF THE REPUBLIC OF CUBA OVER THE ABOVE
DESCRIBED AREAS OF LAND AND WATER, ON THE OTHER HAND THE REPUBLIC
PUBLIC OF CUBA CONSENTS THAT DURING THE PERIOD OF THE OCCUPATION BY THE
UNITED STATES OF SAID AREAS UNDER THE TERMS OF THIS AGREEMENT THE
UNITED STATES SHALL EXERCISE COMPLETE JURISDICTION AND CONTROL OVER AND
WITHIN SAID AREAS WITH THE RIGHT TO ACQUIRE (UNDER CONDITIONS TO BE
HEREAFTER AGREED UPON BY THE TWO GOVERNMENTS) FOR THE PUBLIC PURPOSES
OF THE UNITED STATES ANY LAND OR OTHER PROPERTY THEREIN BY PURCHASE OR
BY EXERCISE OF EMINENT DOMAIN WITH FULL COMPENSATION TO THE OWNERS
THEREOF." 

ID., 361.  SEE JOINT RESOLUTION NO. 24, APRIL 20, 1898, ON THE
RECOGNITION OF THE INDEPENDENCE OF CUBA, 30 STAT. 738; THE ACT OF MARCH
2, 1901, IN FULFILLMENT THEREOF, 31 STAT. 898, ART. VII; TREATY WITH
CUBA PROCLAIMED JUNE 9, 1934, 48 STAT. 1682, 1683, ART. III. 

FN6  ISTHMIAN CANAL CONVENTION, 33 STAT. 2234: 

"THE UNITED STATES OF AMERICA AND THE REPUBLIC OF PANAMA BEING
DESIROUS TO INSURE THE CONSTRUCTION OF A SHIP CANAL ACROSS THE ISTHMUS
OF PANAMA TO CONNECT THE ATLANTIC AND PACIFIC OCEANS, AND THE CONGRESS
OF THE UNITED STATES OF AMERICA HAVING PASSED AN ACT APPROVED JUNE 28,
1902, IN FURTHERANCE OF THAT OBJECT, BY WHICH THE PRESIDENT OF THE
UNITED STATES IS AUTHORIZED TO ACQUIRE WITHIN A REASONABLE TIME THE
CONTROL OF THE NECESSARY TERRITORY OF THE REPUBLIC OF COLOMBIA, AND THE
SOVEREIGNTY OF SUCH TERRITORY BEING ACTUALLY VESTED IN THE REPUBLIC OF
PANAMA, THE HIGH CONTRACTING PARTIES HAVE RESOLVED FOR THAT PURPOSE TO
CONCLUDE A CONVENTION AND HAVE ACCORDINGLY APPOINTED AS THEIR
PLENIPOTENTIARIES,  -". 

ID., 2235:

           "ARTICLE III. 

"THE REPUBLIC OF PANAMA GRANTS TO THE UNITED STATES ALL THE RIGHTS,
POWER AND AUTHORITY WITHIN THE ZONE MENTIONED AND DESCRIBED IN ARTICLE
II OF THIS AGREEMENT AND WITHIN THE LIMITS OF ALL AUXILIARY LANDS AND
WATERS MENTIONED AND DESCRIBED IN SAID ARTICLE II WHICH THE UNITED
STATES WOULD POSSESS AND EXERCISE IF IT WERE THE SOVEREIGN OF THE
TERRITORY WITHIN WHICH SAID LANDS AND WATERS ARE LOCATED TO THE ENTIRE
EXCLUSION OF THE EXERCISE BY THE REPUBLIC OF PANAMA OF ANY SUCH
SOVEREIGN RIGHTS, POWER OR AUTHORITY." 

FN7  THROUGH THE JOINT RESOLUTION OF JUNE 29, 1944, 58 STAT. 625,
THESE PROVISIONS WERE EFFECTUATED IN LEASES FOR 99 YEARS BY AN
AGREEMENT OF MARCH 14, 1947.  61 STAT. 2834, TREATIES AND INTERNATIONAL
ACTS NO. 1611.  THE RIGHTS OF CONTROL OVER THE AREAS OBTAINED BY THE
UNITED STATES FROM THE REPUBLIC OF THE PHILIPPINES ARE QUITE SIMILAR TO
THOSE OBTAINED OVER THE BERMUDA BASE. 

FN8  THE POWER OF CONTROL OVER LEASED AREAS OBTAINED BY THE UNITED
STATES THROUGH THE ABOVE LEASES IS NOT GREATER THAN THAT ORDINARILY
EXERCISED BY SOVEREIGN LESSEES OF FOREIGN TERRITORY.  SEE 34 AMERICAN
JOURNAL OF INTERNATIONAL LAW 703; LAWRENCE, PRINCIPLES OF INTERNATIONAL
LAW (6TH ED., 1915) 175; H.R. DOC. NO. 1, 56TH CONG., 2D SESS., 386;
OPPENHEIM'S INTERNATIONAL LAW (6TH ED. BY LAUTERPACHT, 1947) 412-14. 
OPPENHEIM CONTAINS NUMEROUS ILLUSTRATIONS OF LEASES BY AN OWNER-STATE
TO A FOREIGN POWER.  HIS VIEWS UPON THE LEASES OF THE BASES HEREIN
REFERRED TO CORRESPOND TO THAT OF OUR DEPARTMENT OF STATE AND TO THE
POSTULATE AS TO SOVEREIGNTY STATED IN THIS OPINION. 

FN9  E.G., 55 STAT. 1245, EXECUTIVE AGREEMENT SERIES 204(GREENLAND);
56 STAT. 1621, EXECUTIVE AGREEMENT SERIES 275(LIBERIA). 

FN10  BROWDER V. UNITED STATES, 312 U.S. 335, 339; BARR V. UNITED
STATES, 324 U.S. 83, 90. 

FN11  PUERTO RICO V. SHELL CO., 302 U.S. 253, 257. 

FN12  FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, SEC. 2, 45
U.S.C. SEC. 52(1908)("EVERY COMMON CARRIER BY RAILROAD IN THE
TERRITORIES, THE DISTRICT OF COLUMBIA, THE PANAMA CANAL ZONE, OR OTHER
POSSESSIONS OF THE UNITED STATES  ...  "); 

NEUTRALITY ACT, 40 STAT. 231, SEC. 1, 18 U.S.C. SEC. 39(1917)("THE
TERM 'UNITED STATES'  ... INCLUDES THE CANAL ZONE AND ALL TERRITORY AND
WATERS, CONTINENTAL OR INSULAR, SUBJECT TO THE JURISDICTION OF THE
UNITED STATES."); 

BANK CONSERVATION ACT, 48 STAT. 2, SEC. 202, 12 U.S.C. SEC.
202(1933)("  ...  THE TERM 'STATE' MEANS ANY STATE, TERRITORY, OR
POSSESSION OF THE UNITED STATES, AND THE CANAL ZONE."); 

FEDERAL COMMUNICATIONS ACT, 48 STAT. 1064, 1065, SEC. 3(G), AS
AMENDED, 47 U.S.C. SEC. 153(G)(1934)("'UNITED STATES' MEANS THE SEVERAL
STATES AND TERRITORIES, THE DISTRICT OF COLUMBIA, AND THE POSSESSIONS
OF THE UNITED STATES, BUT DOES NOT INCLUDE THE CANAL ZONE."); 

FOOD, DRUG, AND COSMETIC ACT, 52 STAT. 1040, SEC. 201(A), 21 U.S.C.
SEC. 321(A)(1938)("THE TERM 'TERRITORY' MEANS ANY TERRITORY OR
POSSESSION OF THE UNITED STATES, INCLUDING THE DISTRICT OF COLUMBIA AND
EXCLUDING THE CANAL ZONE."); 

FEDERAL FIREARMS ACT, 52 STAT. 1250, SEC. 1(2), AS AMENDED, 15 U.S.C.
SEC. 901(2)(1938)("THE TERM 'INTERSTATE OR FOREIGN COMMERCE' MEANS
COMMERCE BETWEEN ANY STATE, TERRITORY OR POSSESSION (NOT INCLUDING THE
CANAL ZONE), OR THE DISTRICT OF COLUMBIA, AND ANY PLACE OUTSIDE
THEREOF; ... "); 

INVESTMENT COMPANY ACT, 54 STAT. 795, SEC. 2(A)(37), AS AMENDED, 15
U.S.C. SEC. 80A-2(37)(1940)("'STATE' MEANS ANY STATE OF THE UNITED
STATES, THE DISTRICT OF COLUMBIA, ALASKA, HAWAII, PUERTO RICO, THE
CANAL ZONE, THE VIRGIN ISLANDS, OR ANY OTHER POSSESSION OF THE UNITED
STATES."); 

NATIONALITY ACT, 54 STAT. 1137, SEC. 101(E), 8 U.S.C. SEC.
501(E)(1940)("THE TERM 'OUTLYING POSSESSIONS' MEANS ALL TERRITORY  ...
OVER WHICH THE UNITED STATES EXERCISES RIGHTS OF SOVEREIGNTY, EXCEPT
THE CANAL ZONE."); 

WAR DAMAGE CORPORATION ACT, 56 STAT. 174, 176, SEC. 2, 15 U.S.C. SEC.
606B-2(A)(1942)("SUCH PROTECTION SHALL BE APPLICABLE ONLY (1) TO SUCH
PROPERTY SITUATED IN THE UNITED STATES (INCLUDING THE SEVERAL STATES
AND THE DISTRICT OF COLUMBIA), THE PHILIPPINE ISLANDS, THE CANAL ZONE,
THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES, AND IN SUCH OTHER
PLACES AS MAY BE DETERMINED BY THE PRESIDENT TO BE UNDER THE DOMINION
AND CONTROL OF THE UNITED STATES  ...  "). 

THE WAR DAMAGE CORPORATION ACT AND THE DEFENSE BASE ACT, 56 STAT.
1035, 42 U.S.C. SEC. 1651(1942), INFRA, NOTE 16, USE TERMS DIFFERENT
FROM "POSSESSION" TO DESCRIBE THESE LEASED AREAS.  WHEN THESE ACTS WERE
PASSED, HOWEVER, THE PROBLEMS POSED BY THE BASES WERE SPECIFICALLY
CONSIDERED BY CONGRESS.  HEARINGS ON H.R. 6382, HOUSE OF
REPRESENTATIVES, 77TH CONG., 2D SESS., P. 27; 88 CONG. REC. 1851.  THUS
THEY AFFORD NO TOUCHSTONE AS TO THE MEANING OF THE FAIR LABOR STANDARDS
ACT, WHERE SUCH PROBLEMS WERE NOT SPECIFICALLY CONSIDERED. 

FN13  UNITED STATES V. DARBY, 312 U.S. 100, 115: 

"THE MOTIVE AND PURPOSE OF THE PRESENT REGULATION ARE PLAINLY TO MAKE
EFFECTIVE THE CONGRESSIONAL CONCEPTION OF PUBLIC POLICY THAT INTERSTATE
COMMERCE SHOULD NOT BE MADE THE INSTRUMENT OF COMPETITION IN THE
DISTRIBUTION OF GOODS PRODUCED UNDER SUBSTANDARD LABOR CONDITIONS,
WHICH COMPETITION IS INJURIOUS TO THE COMMERCE AND TO THE STATES FROM
AND TO WHICH THE COMMERCE FLOWS." 

SUBSTANDARD CONDITIONS INCLUDED EXCESSIVE HOURS OF LABOR.  OVERNIGHT
MOTOR CO. V. MISSEL, 316 U.S. 572, 577. 

FN14  JOHNSON V. UNITED STATES, 163 F. 30, 32. 

FN15  WHEN CONGRESS DEALT WITH COVERAGE IN THE NATIONAL LABOR
RELATIONS ACT, ENACTED JULY 5, 1935, 49 STAT. 449, 450, IT USED A
NARROWER DEFINITION OF COMMERCE, ONE RESTRICTED TO STATES AND
TERRITORIES.  THAT HAS BEEN HELD TO COVER PUERTO RICO BUT WE ARE NOT
ADVISED OF ANY APPLICATION TO THE BASES.  CF. LABOR BOARD V. GONZALEZ
PADIN CO., 161 F.2D 353. 

FN16  DEFENSE BASE ACT, 56 STAT. 1035, 42 U.S.C. SEC. 1651(1942). 
THIS ACT EXTENDS THE COVERAGE OF THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT TO "ANY EMPLOYEE ENGAGED IN ANY EMPLOYMENT - 

"(1)  AT ANY MILITARY, AIR, OR NAVAL BASE ACQUIRED AFTER JANUARY 1,
1940, BY THE UNITED STATES FROM ANY FOREIGN GOVERNMENT; OR 

"(2)  UPON ANY LANDS OCCUPIED OR USED BY THE UNITED STATES FOR
MILITARY OR NAVAL PURPOSES IN ANY TERRITORY OR POSSESSION OUTSIDE THE
CONTINENTAL UNITED STATES (INCLUDING ALASKA; THE PHILIPPINE ISLANDS;
THE UNITED STATES NAVAL OPERATING BASE, GUANTANAMO BAY, CUBA; AND THE
CANAL ZONE); ... " 

THIS EXTENSION WAS NECESSARY BECAUSE OF THE PRIOR LIMITED LANGUAGE OF
THE ACT WHICH COVERED INJURIES "OCCURRING UPON THE NAVIGABLE WATERS OF
THE UNITED STATES," THE TERM "UNITED STATES" BEING DEFINED TO MEAN "THE
SEVERAL STATES AND TERRITORIES AND THE DISTRICT OF COLUMBIA, INCLUDING
THE TERRITORIAL WATERS THEREOF."  44 STAT. 1424, 33 U.S.C. SECS. 902,
903. 

IT WILL BE NOTED THAT GUANTANAMO BAY AND THE CANAL ZONE WERE INCLUDED
IN THE LISTS AS "POSSESSIONS." 

MR. JUSTICE JACKSON, DISSENTING. 

THE SERIOUS QUESTION IN THIS CASE IS NOT AS TO THE MEANING OF THE
FAIR LABOR STANDARDS ACT.  IT MEANS JUST WHAT IT SAYS WHEN IT PROVIDES
THAT IT SHALL APPLY IN ANY TERRITORY OR POSSESSION OF THE UNITED STATES
AND I WOULD APPLY IT TO EVERY FOOT OF SOIL THAT, UP TO THE TIME OF THIS
DECISION, HAS BEEN REGARDED AS OUR POSSESSION. 

THE REAL ISSUE HERE, AND IT IS A NOVEL ONE, IS WHETHER THIS COURT
WILL CONSTRUE THE LEASE UNDER WHICH THE UNITED STATES OCCUPIES A
MILITARY BASE IN BERMUDA AS ADDING IT TO OUR POSSESSIONS.  THE LABOR
FOR WHICH OVERTIME UNDER THE ACT IS SOUGHT WAS PERFORMED FOR A
GOVERNMENT CONTRACTOR ON THIS MILITARY BASE.  THE BASE DID NOT EXIST
WHEN THE ACT WAS PASSED AND IT DOES NOT EITHER EXPRESSLY OR IMPLIEDLY
PURPORT TO COVER WORK IN THAT AREA, UNLESS THE WORD "POSSESSION" SHALL
BE CONSTRUED TO INCLUDE THE LEASED LANDS.  WHETHER IT IS APPROPRIATE OR
PERMISSIBLE TO HOLD AS MATTER OF LAW THAT OUR TENURE THERE CONSTITUTES
THE LEASEHOLD AREA A POSSESSION OBVIOUSLY TURNS ON A READING OF THE
LEASE FROM GREAT BRITAIN. 

THE COURT OF APPEALS READ THE LEASE TO GIVE "SWEEPING POWERS" TO THE
UNITED STATES AND DECLARED THAT "THE AREAS ARE SUBJECT TO FULLY AS
COMPLETE CONTROL BY THE UNITED STATES AS OBTAINS IN OTHER AREAS LONG
KNOWN AS 'POSSESSIONS' OF THE UNITED STATES."  IT NAMES AS COMPARABLE
POSSESSIONS ALASKA, HAWAII, PUERTO RICO, GUAM, SAMOAN ISLANDS, VIRGIN
ISLANDS AND THE CANAL ZONE.  THIS COURT SEEMS TO APPROVE THAT PREMISE
BECAUSE IT AFFIRMS, CITING SOME IF NOT ALL OF THE SAME EXAMPLES; BUT IT
ALSO SAYS, "  ...  IT IS DIFFICULT TO FORMULATE A BOUNDARY TO ITS (THE
ACT'S) COVERAGE SHORT OF AREAS OVER WHICH THE POWER OF CONGRESS
EXTENDS,  ...  TO LEGISLATE UPON MAXIMUM HOURS AND MINIMUM WAGES." 
FN1    THUS APPLICATION OF THE ACT TO THE LEASED AREA IS PUT ON TWO
GROUNDS:  FIRST, THAT THE AREA IS A POSSESSION OF THE UNITED STATES;
AND SECOND, SINCE THE ACT APPLIES TO THOSE "ENGAGED IN COMMERCE OR IN
THE PRODUCTION OF GOODS FOR COMMERCE,"  FN2  IT OPERATES WHEREVER
CONGRESS HAS POWER TO ACT WITH RESPECT TO COMMERCE.  PRESUMABLY THE
COURT WILL NOT SHRINK FROM APPLYING THE CONVERSE OF THE LATTER
PROPOSITION; THAT THE ACT DOES NOT APPLY WHERE THIS COUNTRY OR ITS
NATIONALS ARE NOT ENGAGED IN COMMERCE. 

BERMUDA AND LIKE BASES ARE NOT, IN MY OPINION, OUR POSSESSIONS ON A
JURIDICAL AND GEOPOLITICAL FOOTING WITH THE POSSESSIONS ENUMERATED.  I
ALSO BELIEVE THAT THERE IS NOT AND UNDER THE LEASE THERE CAN NOT BE IN
THE LEASED AREA ANY "COMMERCE" SUBJECT TO THE ACT. 

TO CONSIDER THE BASES AS POSSESSIONS IN THAT SENSE IS INCOMPATIBLE
WITH THE SPIRIT OF THE NEGOTIATIONS AND WITH THE LETTER OF THE LEASE BY
WHICH THE BASES WERE ACQUIRED.  IT ENLARGES THE RESPONSIBILITIES WHICH
THE UNITED STATES WAS WILLING TO ACCEPT AND THE PRIVILEGES WHICH GREAT
BRITAIN WAS WILLING TO CONCEDE.  THIS WILL APPEAR FROM THE HISTORY OF
THE TRANSACTION WHOSE MEANING WE INTERPRET. 

WHEN ORGANIZED RESISTANCE IN THE LOW COUNTRIES AND IN FRANCE WENT
DOWN AND THE GERMAN WEHRMACHT STOOD POISED ON EUROPE'S ATLANTIC
SEABOARD, IT WAS SUSPECTED, AS IT SINCE HAS BEEN PROVED, THAT THE
DESIGN FOR CONQUEST EMBRACED SEIZURE OF ATLANTIC ISLANDS AS A PATHWAY
FOR FUTURE OPERATIONS AGAINST THE UNITED STATES.  FN3  DISASTERS ON
LAND AND SEA HAD BROUGHT THREAT OF INVASION OF THE BRITISH ISLES NEARER
TO REALITY THAN AT ANY TIME SINCE THE SPANISH ARMADA.  CONSEQUENTLY,
GREAT BRITAIN COULD DIVERT NO FORCES TO THE DEFENSE OF HER ISLAND
POSSESSIONS IN OUR HEMISPHERE, WHICH AFTER ALL WERE STRATEGIC SPOTS TO
ASSAIL OUR COMMERCE AND STEPPING STONES TO OUR GATEWAYS.  FN4 GREAT
BRITAIN, HOWEVER, DESPERATELY IN NEED OF DESTROYERS TO DEFEND HER
SHORES, INTIMATED A READINESS TO PUT THE UNITED STATES IN A POSITION TO
DEFEND THESE ISLANDS AND THE AMERICAS AS A QUID PRO QUO FOR OVERAGED
AMERICAN DESTROYERS.  FN5 

AMONG THOSE WHO SAW IN THE DEVELOPMENT OF AIR WARFARE A NECESSITY FOR
MOVING OUR AIR DEFENSE OUTPOSTS SEAWARD FROM THE CITIES WHICH DOT OUR
OWN SHORES, AN INFLUENTIAL AND RESPECTED GROUP FAVORED ASKING ENGLAND
TO CEDE HER ISLAND POSSESSIONS IN THIS HEMISPHERE TO US AS AN OUTRIGHT
TRANSFER OF SOVEREIGNTY.  IF THIS CESSION HAD BEEN ASKED AND GRANTED,
THE COURT WOULD NOW RIGHTLY HOLD THE BASES TO BE OUR "POSSESSIONS." 
BUT IT WAS PRESIDENT ROOSEVELT HIMSELF WHO DETERMINED FOR THIS COUNTRY
THAT IT WAS THE PART OF WISDOM NEITHER TO SEEK NOR TO ACCEPT
SOVEREIGNTY OR SUPREME AUTHORITY OVER ANY PART OF THESE ISLANDS.  HE
DECIDED THAT IT WAS IN OUR SELF-INTEREST TO LIMIT THE RESPONSIBILITIES
OF THE UNITED STATES STRICTLY TO ESTABLISHMENT, MAINTENANCE AND
OPERATION OF MILITARY, NAVAL AND AIR INSTALLATIONS.  HIS REASONS HAVE
BEEN PARTIALLY DISCLOSED  FN6  AND ONE OF THEM, APPARENT TO ANYONE EVEN
CASUALLY TRAVELLED IN THOSE ISLANDS, WAS THE GREAT DISPARITY OF SOCIAL,
ECONOMIC AND LABOR CONDITIONS BETWEEN THE ISLANDS AND OUR CONTINENT. 
ALSO HE KNEW FULL WELL THE DIFFERENT CUSTOMS AND INSTITUTIONS
PREVAILING THERE, PARTICULARLY THE RELATIONS BETWEEN THE WHITE, COLORED
AND NATIVE RACES, AND THE DIFFICULTY OF ASSIMILATING THEM INTO THE
AMERICAN PATTERN - A PROSPECT THAT WOULD AROUSE EMOTIONAL TENSIONS IN
THIS COUNTRY AS WELL AS IN THE ISLANDS AND WHICH INDEED CAUSED SOME
ANXIETY EVEN IN WESTMINSTER N7.  THUS IT WAS SETTLED AMERICAN POLICY,
GROUNDED, AS I THINK, ON THE HIGHEST WISDOM, THAT, WHATEVER TECHNICAL
FORM THE TRANSACTION SHOULD TAKE, WE SHOULD ACQUIRE NO SUCH
RESPONSIBILITIES AS WOULD REQUIRE US TO IMPORT TO THOSE ISLANDS OUR
LAWS, INSTITUTIONS AND SOCIAL CONDITIONS BEYOND THE NECESSITIES OF
CONTROLLING A MILITARY BASE AND ITS GARRISON, DEPENDENTS AND INCIDENTAL
PERSONNEL. 

KNOWLEDGE OF THAT POLICY AND PURPOSE GIVES A MEASURE OF THE NOVEL AND
DUBIOUS GROUNDS FOR THE COURT'S PRESENT DETERMINATION TO PUT THESE
BASES UPON THE LEGISLATIVE AND JURIDICAL FOOTING OF "TERRITORIES AND
POSSESSIONS."  IT IS A FIRST STEP IN THE DIRECTION OF THE VERY
IMPRUDENCE THAT WAS SOUGHT TO BE AVOIDED BY THE LIMITED TENURE DEVISED
FOR THE BASES. 

BUT IF AMERICAN INTERESTS NEITHER REQUIRE NOR ADMIT OF THE ASSUMPTION
THAT THE BASES HAVE BECOME OUR POSSESSIONS, THE BOUNDS OF THE GRANT AS
UNDERSTOOD AND EXPRESSED BY GREAT BRITAIN DENY IT WITH EVEN MORE
COMPELLING FORCE.  THE CONFINED CHARACTER OF THE GRANTED PRIVILEGES AND
THEIR INCOMPATIBILITY WITH EITHER SOVEREIGNTY OR PROPRIETORSHIP ON OUR
PART APPEAR FROM THE LETTER OF THE MARQUESS OF LOTHIAN TO SECRETARY
HULL OF SEPTEMBER 2, 1940, WHICH COMMITTED THE UNITED KINGDOM TO GRANT
TO THE UNITED STATES "THE LEASE FOR IMMEDIATE ESTABLISHMENT AND USE OF
NAVAL AND AIR BASES AND FACILITIES FOR ENTRANCE THERETO AND THE
OPERATION AND PROTECTION THEREOF," ON THE GREAT BAY OF BERMUDA.  FN8
ALL OF THE SPECIFIC PROVISIONS OF THE FORMAL LEASE WERE SUBSIDIARY TO
AND WITHIN THIS GENERAL MEASURE OF THE RIGHTS YIELDED.  IT COMPREHENDED
ALL THAT IT WAS INTENDED TO BESTOW AND ALL THAT WE INTENDED TO TAKE. 
ITS DIMENSIONS WERE WELL DEFINED BY MR. STIMSON AS "THE RIGHT TO
FORTIFY AND DEFEND."  FN9 

DETAILS OF THE FORMAL LEASE DO BUT EMPHASIZE THE COMMON PURPOSE OF
GREAT BRITAIN TO SO CONFINE THE CONCESSION AND THAT OF PRESIDENT
ROOSEVELT TO SO CIRCUMSCRIBE OUR RESPONSIBILITIES.  THE LEASEHOLD RIGHT
OF THE UNITED STATES, IN WAR TIME OR EMERGENCY, TO CONDUCT MILITARY
OPERATIONS ON LAND, WATER OR IN THE AIR, WHICH WAS THE HEART OF THE
MATTER FOR US, IS WITHOUT BOUNDS OR RESTRICTIONS EXCEPT FOR A PLEDGE OF
GOOD NEIGHBORLINESS AND FRIENDLY COOPERATION IN THEIR EXERCISE. 

THE LEASEHOLD TERMS, HOWEVER, ARE WELL CHOSEN, CAREFULLY TO DENY
EVERY COMMERCIAL AND POLITICAL RIGHT TO THE UNITED STATES EXCEPT AS
THEY ARE INCIDENTAL AND APPURTENANT TO THIS PRIMARY MILITARY USUFRUCT. 
AMERICAN NATIONALS CANNOT GO THERE FOR ANY PURPOSE OTHER THAN
GOVERNMENTAL EXCEPT IN CONFORMITY TO BERMUDIAN LAWS.  ITS IMMIGRATION
LAWS ARE RELAXED ONLY TO ADMIT "ANY MEMBER OF THE UNITED STATES FORCES
POSTED TO A LEASED AREA" AND "ANY PERSON (NOT BEING A NATIONAL OF A
POWER AT WAR WITH HIS MAJESTY THE KING) EMPLOYED BY, OR UNDER A
CONTRACT WITH, THE GOVERNMENT OF THE UNITED STATES IN CONNECTION WITH
THE CONSTRUCTION, MAINTENANCE, OPERATION OR DEFENCE OF THE BASES." 
EVEN SO, THE LESSEE MUST SUBMIT TO MEASURES TO IDENTIFY SUCH PERSONS
AND TO ESTABLISH THEIR STATUS.  IN WHAT FORMERLY RECOGNIZED POSSESSION
OF THE UNITED STATES MENTIONED BY THE COURT IS AMERICAN CITIZENS'
PRIVILEGE OF INGRESS AND EGRESS, OF TRANSIT AND OF RESIDENCE, SO
LIMITED? 

PRIVATE TRADE AND COMMERCE BY OUR CITIZENS LIKEWISE ARE WHOLLY IN
CONTROL OF THE COLONY AND ARE NO MORE DEPENDENT UPON OUR LAWS THAN IN
ANY OTHER PART OF THE UNITED KINGDOM OR ANY FOREIGN COUNTRY.  BERMUDIAN
CUSTOMS DUTIES ARE WAIVED ONLY ON MATERIAL FOR CONSTRUCTION AND
MAINTENANCE OF OUR BASES, FOR CONSUMPTION BY OUR GARRISONS AND
SUPPORTING PERSONNEL, AND ON THEIR HOUSEHOLD GOODS; AND WE UNDERTAKE TO
PREVENT ABUSE OF THIS CUSTOMS PRIVILEGE AND TO PREVENT RESALE OF SUCH
IMPORTS.  THIS IS NOT GREATER THAN THE IMMUNITY ALLOWED BY EVERY
FOREIGN COUNTRY TO OUR DIPLOMATIC CORPS AND STAFFS, AND THE POWER
RESERVED BY BRITAIN OVER IMPORTS AND CUSTOMS IS WHOLLY INCONSISTENT
WITH THE CONCEPT THAT THESE ARE OUR POSSESSIONS. 

THE LEASE ALSO EXPRESSLY AND UNCONDITIONALLY PROVIDES THAT NO
BUSINESS CAN BE ESTABLISHED IN THE LEASED AREA AND THAT NO PERSON SHALL
HABITUALLY RENDER ANY PROFESSIONAL SERVICES EXCEPT FOR THE GOVERNMENT
AND ITS PERSONNEL.  NO WIRELESS OR SUBMARINE CABLE MAY BE OPERATED
EXCEPT FOR MILITARY PURPOSES.  ARE SUCH STIFLING RESTRAINTS BY ANOTHER
STATE CONSISTENT WITH THE IDEA OF OUR POSSESSION? 

PAYMENT OF LOCAL INCOME AND PROPERTY TAXES ARE ONLY WAIVED AS AGAINST
THOSE IN THE AREA WHEN THEY ARE MEMBERS OF OUR ARMED FORCES, EMPLOYEES
ENGAGED IN OUR WORKS OR CONTRACTORS WITH OUR GOVERNMENT.  IN SHORT, NO
ACTUAL POSSESSION OF THE UNITED STATES USED BY THE COURT AS A STANDARD
OF REFERENCE IS SO INSULATED FROM THE UNITED STATES IN FISCAL, SOCIAL,
ECONOMIC, COMMERCIAL AND POLITICAL AFFAIRS.  IN NONE IS THE COMMERCE
POWER OF CONGRESS SO STRIPPED OF SUBJECT MATTER FOR REGULATION OR OUR
PERMISSIBLE RANGE OF ACTIVITY SO CIRCUMSCRIBED. 

POSSESSIONS SUCH AS PUERTO RICO, GUAM, THE GUANO ISLANDS, SAMOA AND
THE VIRGIN ISLANDS, WHICH THE COURT MENTIONS AS STANDARDS FOR THE
TREATMENT OF BERMUDA, ARE, IN VITAL RESPECTS, AS DIFFERENT FROM IT AS
NIGHT FROM DAY.  NOT ONE OF THEM IS SUBJECT TO EVEN A FRIVOLOUS CLAIM
ADVERSE TO OUR COMPLETE OWNERSHIP.  THEY BELONG TO US OR THEY BELONG TO
NO ONE.  THEY ARE CEDED TERRITORY OVER WHICH UNITED STATES SOVEREIGNTY
IS AS COMPLETE AND AS UNQUESTIONED AS OVER THE DISTRICT OF COLUMBIA AND
THEY ARE SUBJECT TO NO DUAL CONTROL OR DIVIDED ALLEGIANCE.  THEY ARE
INCORPORATED INTO OUR ECONOMY, FREELY TRADING IN OUR MARKETS, AND
"PROTECTED" BY OUR TARIFF WALLS.  THEY ARE INTEGRATED WITH OUR SOCIAL
AND, IN SOME DEGREE AT LEAST, WITH OUR POLITICAL LIFE AS WELL; SOME OF
THEM BEING AUTHORIZED TO SEND DELEGATES TO OUR CONGRESS. 

ON THE OTHER HAND, HOWEVER, BERMUDA NEVER HAS CEASED IN ITS ENTIRETY
TO BE A CROWN COLONY OF GREAT BRITAIN.  SOCIAL, INDUSTRIAL AND LABOR
CONDITIONS PREVAILING AT THE ISLAND BASES ARE SUCH THAT BOTH NATIONS
MADE EVERY EFFORT TO INSULATE THEM FROM THE DAMAGING EFFECTS OF OUR
LIMITED OCCUPATION FOR MILITARY PURPOSES.  IT SEEMS TO ME UNSOUND
POLICY AS WELL AS CAPRICIOUS STATUTORY INTERPRETATION FOR THE COURT
BLINDLY TO MINGLE THEM BY IMPOSING STATUTORY POLICIES THAT WERE NOT
SHAPED WITH THEIR EXISTENCE OR PECULIARITIES IN MIND.  IT MAY BE THAT,
IN SOME MATTERS, THE SAME POLICIES SUITED TO OUR LEGITIMATE POSSESSIONS
WILL ALSO BE CONSIDERED ADAPTABLE TO THE BASES.  BUT IT IS NOT
NECESSARILY OR PRESUMPTIVELY SO, AND WHERE THE BASES ARE TO BE BROUGHT
INTO OUR SCHEME OF THINGS, IT SHOULD BE DELIBERATELY AND CONSCIOUSLY
DONE BY THE CONGRESS, IN PARTICULAR MATTERS AND WITH PARTICULAR REGARD
TO LOCAL CONDITIONS,  FN10  AND PERHAPS AFTER CONSULTATION WITH THE
UNITED KINGDOM OR COLONIAL AUTHORITIES.  WE SHOULD NOT BY THE PROCESS
OF JUDICIAL INTERPRETATION IMPOSE UPON THE BASES NOT ONLY THE POLICIES
OF THE ACT BEFORE US BUT THOSE OF MANY ACTS NOT INVOLVED HERE AND AS TO
WHICH WE ARE EVEN LESS INFORMED.  FN11 

NEITHER SHOULD WE EMBARK UPON A COURSE OF MAKING THE SAME NAKED WORDS
MEAN ONE THING IN ONE ACT AND SOMETHING ELSE IN ANOTHER.  IT CANNOT BE
PRETENDED THAT SUCH AN INTERPRETATION AS THE COURT ANNOUNCES IS IN
RESPONSE TO ANY DEMONSTRABLE INTENTION OF CONGRESS ON THE SUBJECT, FOR
WHEN THIS ACT WAS PASSED THE BERMUDA BASE WAS NOT IN BEING NOR WAS IT
WITHIN THE CONTEMPLATION OF EVEN THE MORE FORESIGHTED. 

IT SHOULD BE ENOUGH TO DISPOSE OF THIS MATTER TO POINT OUT THAT THE
UNITED STATES HAS NO SUPREME AUTHORITY OR SOVEREIGN FUNCTION IN
BERMUDA, WHERE EVERY COMMERCIAL ACTIVITY IS SUBJECT TO CONTROL BY
ANOTHER SOVEREIGN WHICH IS OUR POLITICAL SUPERIOR IN THE ISLAND.  WE
HAVE NO COMMERCIAL RIGHTS IN BERMUDA IN THE SENSE OF PRIVATE ENTERPRISE
SUCH AS CONGRESS BY THIS ACT SOUGHT TO REGULATE.  THE UNITED STATES
CANNOT IN GOOD FAITH CONDUCT OR PERMIT ITS NATIONALS TO ENGAGE IN
INDUSTRY, MANUFACTURE OR TRADE THERE.  IT CANNOT AUTHORIZE THEM TO
CONDUCT COMMERCE THERE OR TO PRODUCE GOODS FOR COMMERCE, WHICH ARE THE
CONDITIONS WHICH THIS ACT ITSELF MAKES NECESSARY TO BRING THE LABOR
STANDARDS ACT INTO PLAY.  TO DO SO WOULD BE A FLAGRANT BREACH OF GOOD
FAITH WITH THE UNITED KINGDOM AND AN OVERREACHING OF THE PEOPLE OF
BERMUDA.  SMALL WONDER THAT THE DEPARTMENT OF STATE FEELS CONSTRAINED
TO INFORM US THAT IT "REGARDS AS UNFORTUNATE" THE CONCLUSION OF THE
COURT BELOW, WHICH IS NOW AFFIRMED, AND ADDS A WARNING THAT ANY HOLDING
THAT THE BASES ARE "POSSESSIONS" OF THE UNITED STATES IN A POLITICAL
SENSE "WOULD NOT IN THE DEPARTMENT'S VIEW BE CALCULATED TO IMPROVE OUR
RELATIONS WITH THAT GOVERNMENT."  FN12 

THE CANAL ZONE HAS BEEN CITED AS A POSSESSION WITH WHICH BERMUDA IS
COMPARABLE.  BUT THE ISTHMIAN CANAL CONVENTION OF 1903, WHICH CEDED THE
CANAL ZONE TO THE UNITED STATES, PROVIDES IN ART. III THAT THE UNITED
STATES IS TO HAVE "ALL THE RIGHTS, POWER AND AUTHORITY WITHIN THE ZONE
...  WHICH THE UNITED STATES WOULD POSSESS AND EXERCISE IF IT WERE THE
SOVEREIGN  ...  TO THE ENTIRE EXCLUSION OF THE EXERCISE BY THE REPUBLIC
OF PANAMA OF ANY SUCH SOVEREIGN RIGHTS, POWER OR AUTHORITY."  FN13  OUR
STATE DEPARTMENT HAS FIRMLY MAINTAINED THAT THIS TREATY CONFERS UPON
THE UNITED STATES COMPLETE POWER OF COMMERCE N14.  TO SUCH AN EXTENT,
INDEED, ARE WE SOVEREIGN IN THE CANAL ZONE THAT PANAMA HAS BEEN GRANTED
SPECIAL COMMERCIAL RIGHTS ONLY BY EXPRESS AND FORMAL CONCESSION,  FN15
AND THIS COURT HAS REVIEWED THE HISTORY OF THE ACQUISITION AND
CONCLUDED THAT THE TITLE OF THE UNITED STATES IS COMPLETE AND PERFECT. 
WILSON V. SHAW, 204 U.S. 24, AT 32, 33. 

BUT THE PANAMA CANAL HISTORY MAY WELL BE EXPLANATORY OF A PARAGRAPH
OF THE BERMUDIAN LEASE FROM GREAT BRITAIN, UPON WHICH THE COURT BELOW
AND RESPONDENT HEAVILY RELY AND WHICH THIS COURT CITES AS ONE OF THE
SIGNIFICANT PROVISIONS.  THIS CLAUSE PROVIDES THAT THE "LEASED AREA IS
NOT A PART OF THE TERRITORY OF THE UNITED STATES FOR THE PURPOSE OF
COASTWISE SHIPPING LAWS SO AS TO EXCLUDE BRITISH VESSELS FROM TRADE
BETWEEN THE UNITED STATES AND THE LEASED AREAS."  FROM THIS PROVISION
IT IS SOUGHT TO DRAW THE CONCLUSION THAT FOR ALL OTHER PURPOSES THE
AREA IS PART OF THE TERRITORY OF THE UNITED STATES.  THE REMAINING
PROVISIONS OF THE IDENTICAL PARAGRAPH ARE SUFFICIENT TO NEGATIVE ANY
IDEA THAT THE TERRITORY BECOMES A UNITED STATES POSSESSION.  FN16  BUT
COASTWISE SHIPPING PRIVILEGES HAD BEEN THE SUBJECT OF FRICTION BETWEEN
THE UNITED STATES AND GREAT BRITAIN OVER THE PANAMA CANAL AND THE PLAIN
PURPORT OF THE ARTICLE IS TO SAY THAT WE DO NOT WANT TO REPEAT THAT
EXPERIENCE.  THE PANAMA CANAL ACT OF 1912, 37 STAT. 560, 562, EXEMPTED
AMERICAN COASTWISE SHIPPING FROM TOLLS, WHICH THE BRITISH GOVERNMENT
REPRESENTED TO BE A VIOLATION OF THE HAY-PAUNCEFOTE TREATY OF 1901 AND
WHICH IT CONSIDERED A COROLLARY OF THE CLAYTON-BULWER TREATY OF 1850. 
PRESIDENT WILSON RECOMMENDED THAT CONGRESS REPEAL THE EXEMPTION
FAVORING AMERICAN COASTWISE SHIPPING AS AGAINST BRITISH SHIPPING  FN17
AND THE ACTION WAS TAKEN ONLY AFTER A BITTER AND EXTENSIVE DEBATE. 
FN18  I THINK THAT THE CLAUSE, INSTEAD OF BEING READ TO CREATE A
POSSESSION OF THE LEASED BASES WOULD, IN THE LIGHT OF OUR TENDENCY TO
FAVOR OUR SHIPPING, BE MORE ACCURATELY READ TO SAY "EVEN FOR THE
PURPOSES OF COASTWISE SHIPPING, THE LEASED AREA SHALL NOT BE CONSIDERED
A POSSESSION." 

GUANTANAMO NAVAL BASE, ALSO REFERRED TO, IS A LEASED BASE IN CUBA
UPON WHICH WE HAVE AGREED THAT "NO PERSON, PARTNERSHIP, OR CORPORATION
SHALL BE PERMITTED TO ESTABLISH OR MAINTAIN A COMMERCIAL, INDUSTRIAL OR
OTHER ENTERPRISE."  BUT GUANTANAMO HAS BEEN RULED BY THE ATTORNEY
GENERAL NOT TO BE A POSSESSION; FN19  IT HAS NOT BEEN LISTED BY THE
STATE DEPARTMENT AS AMONG OUR "NON-SELF-GOVERNING TERRITORIES," N20 AND
THE ADMINISTRATOR OF THE VERY ACT BEFORE US HAS NOT LISTED IT AMONG OUR
POSSESSIONS.  FN21  ITS TREATMENT CONFIRMS OUR VIEW THAT NEITHER IS
BERMUDA A POSSESSION. 

AMONG RESPONSIBLE AGENCIES OF THE UNITED STATES, THIS COURT ALONE
INSISTS THAT THE BERMUDA BASES ARE POSSESSIONS.  THE DEPARTMENT OF
JUSTICE FILES A BRIEF URGING THE COURT AGAINST THIS POSITION; THE
DEPARTMENT OF STATE WARNS OF ITS DANGERS AND HARMFUL EFFECTS UPON OUR
FOREIGN RELATIONS; THE WAGE AND HOUR ADMINISTRATOR RULED
ADMINISTRATIVELY AGAINST COVERAGE IN BERMUDA.  FN22  CONGRESS HAS SHOWN
THAT IT HAS NOT REGARDED THE LEASED AREAS AS "POSSESSIONS."  FN23 

HERETOFORE IT HAS BEEN THOUGHT THAT THE COURT SHOULD FOLLOW RATHER
THAN OVERRULE THE EXECUTIVE DEPARTMENT IN MATTERS OF THIS KIND.  FN24 

WHAT I HAVE SAID DOES NOT REFLECT THE SLIGHTEST DOUBT ABOUT THE POWER
OF CONGRESS TO MAKE GOVERNMENT CONTRACTORS, DOING WORK IN BERMUDA OR
ANYWHERE ELSE IN THE WORLD, WHETHER IN OUR OWN OR IN FOREIGN
POSSESSIONS, PAY TIME-AND-A-HALF FOR OVERTIME OR TO ENFORCE ALMOST ANY
LABOR POLICY UPON THEM.  FN25  THE POWER OF CONGRESS, BY APPROPRIATE
LEGISLATION, TO GOVERN SUCH A RELATIONSHIP IS NOT IMPAIRED IF WE HOLD
THAT THE PLACE WHERE THE CONTRACT IS PERFORMED IS NOT OUR
"POSSESSION."  THE HOLDING THAT IT IS A POSSESSION IS NOT ESSENTIAL TO
ENABLE CONGRESS TO ACT BUT SERVES ONLY THE PURPOSE OF EXPANDING THE
COVERAGE OF THIS ACT TO THE BASES WITHOUT SPECIFIC ACTION BY CONGRESS. 
WE NEED NOT RESORT TO SUCH AN UNWARRANTED AND DISTURBING INTERPRETATION
OF OUR RELATIONS WITH BERMUDA AND THE UNITED KINGDOM IN ORDER TO
PRESERVE THE FULL POWER OF CONGRESS TO EXTEND ALL PROPER PROTECTION TO
THE WAGES AND HOURS OF ALL PERSONNEL AT THE BASE, BECAUSE THEY ARE AND
CAN BE THERE ONLY BY VIRTUE OF GOVERNMENT ASSIGNMENT OR GOVERNMENT
CONTRACTS. 

IN SUMMARY:  CONGRESS MADE THE ACT APPLICABLE IN OUR "POSSESSIONS." 
THERE IS NO INDICATION OR REASON TO BELIEVE THAT, HAD CONGRESS
CONSIDERED THE MATTER, IT WOULD HAVE REGARDED OUR TENURE IN THE BERMUDA
BASE AS CREATING A "POSSESSION," OR WOULD HAVE APPLIED AN ACT
REGULATING PRIVATE EMPLOYMENT TO AN AREA WHERE NO SUCH PRIVATE
ENTERPRISE COULD EXIST.  THERE IS NO INDICATION OF A PURPOSE TO APPLY
THE ACT TO AN EXCLUSIVELY MILITARY OPERATION; INDEED THE ACT INDICATES
THE CONTRARY BY EXEMPTING GOVERNMENT EMPLOYEES FROM ITS OPERATION. 
FN26 

IT WOULD NOT CONCERN THE UNITED KINGDOM, OR THE COLONY OF BERMUDA, IF
THE UNITED STATES SHOULD REQUIRE ITS CONTRACTORS TO PAY OVERTIME, UPON
ANY ASSUMPTIONS WHICH DO NOT IMPLY A POSSESSION ADVERSE TO THEIRS.  BUT
I DO THINK IT WILL CAUSE UNDERSTANDABLE ANXIETY IF THIS COURT DOES IT
BY HOLDING, AS MATTER OF LAW, THAT THE LEASED AREAS ARE POSSESSIONS OF
THE UNITED STATES, LIKE THOSE WE GOVERN TO THE EXCLUSION OF ALL
OTHERS.  SUCH A DECISION BY THIS COURT INITIATES A PHILOSOPHY OF
ANNEXATION AND ESTABLISHES A PSYCHOLOGICAL ACCRETION TO OUR POSSESSIONS
AT THE EXPENSE OF OUR LESSORS, NOT UNLIKELY TO BE RECEIVED IN MORE
CRITICAL QUARTERS ABROAD AS CONFIRMATION OF THE SUSPICION THAT
COMMITMENTS MADE BY OUR EXECUTIVE ARE LIGHTLY REPUDIATED BY ANOTHER
BRANCH OF OUR GOVERNMENT.  IT SHOULD BE THE SCRUPULOUS CONCERN OF EVERY
BRANCH OF OUR GOVERNMENT NOT TO OVERREACH ANY COMMITMENT OR LIMITATION
TO WHICH ANY BRANCH HAS AGREED.  FN27 

I WOULD REVERSE THE JUDGMENT BELOW AND DIRECT DISMISSAL OF THE
COMPLAINT.  FN28 

FN1  THIS IS THE MORE STRIKING BECAUSE IT IS SAID CONCERNING AN ACT
WHICH WE HAVE HELD DOES NOT, EVEN IN CONTINENTAL UNITED STATES,
EXERCISE OR PURPORT TO EXERCISE THE FULL SCOPE OF THE COMMERCE POWER. 
SEE, E.G., MCLEOD V. THRELKELD, 319 U.S. 491, 493; KIRSCHBAUM CO. V.
WALLING, 316 U.S. 517. 

FN2  SECTION 6 OF THE ACT REQUIRES EVERY EMPLOYER (AS DEFINED
THEREIN) TO PAY THE PRESCRIBED RATES TO EACH EMPLOYEE WHO IS "ENGAGED
IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE"; AND SEC. 7
FORBIDS OVERTIME EMPLOYMENT, EXCEPT AT PRESCRIBED RATES, OF ANY
EMPLOYEE WHO IS "ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE."  29 U.S.C. SECS. 206, 207. 

FN3  ON OCTOBER 29, 1940, MAJOR (GENERAL STAFF) FREIHERR VON
FALKENSTEIN, FROM THE FUEHRER'S HEADQUARTERS, WROTE A SECRET "RESUME OF
THE MILITARY QUESTIONS CURRENT HERE."  THE 5TH ITEM THEREOF READS: 

"THE FUEHRER IS AT PRESENT OCCUPIED WITH THE QUESTION OF THE
OCCUPATION OF THE ATLANTIC ISLANDS WITH A VIEW TO THE PROSECUTION OF
WAR AGAINST AMERICA AT A LATER DATE.  DELIBERATIONS ON THIS SUBJECT ARE
BEING EMBARKED UPON HERE.  ESSENTIAL CONDITIONS ARE AT THE PRESENT: 

"A.  NO OTHER OPERATIONAL COMMITMENT, 

"B.  PORTUGUESE NEUTRALITY, 

"C. SUPPORT OF FRANCE AND SPAIN. 

"A BRIEF ASSESSMENT OF THE POSSIBILITY OF SEIZING AND HOLDING AIR
BASES AND OF THE QUESTION OF SUPPLY IS NEEDED FROM THE GAF." 

3 NAZI CONSPIRACY AND AGGRESSION (GPO 1946), P. 289; 3 TRIAL OF MAJOR
WAR CRIMINALS (GPO 1947), P. 389, DOCUMENT NO. 376-PS RECEIVED IN
EVIDENCE DEC. 10, 1945; SEE NAZI CONSPIRACY AND AGGRESSION:  OPINION
AND JUDGMENT (GPO 1947), P. 45. 

FN4  "I UNDERSTAND THAT IN THE VIEW OF THE AMERICAN TECHNICAL
AUTHORITIES MODERN CONDITIONS OF WAR, ESPECIALLY AIR WAR, REQUIRE
FORESTALLING ACTION, IN THIS CASE ESPECIALLY IN ORDER TO PREVENT THE
ACQUISITION BY HITLER OF JUMPING-OFF GROUNDS FROM WHICH IT WOULD BE
POSSIBLE, BOUND BY BOUND, TO COME TO CLOSE QUARTERS WITH THE AMERICAN
CONTINENT."  MR. CHURCHILL TO HOUSE OF COMMONS, JULY 9, 1941. 
CHURCHILL, "THE UNRELENTING STRUGGLE," PP. 175-176. 

FN5  STIMSON, "ON ACTIVE SERVICE IN PEACE AND WAR," VOL. II, PP. 356
358. 

FN6  HULL, "MEMOIRS," P. 834; STIMSON, "ON ACTIVE SERVICE IN PEACE
AND WAR," VOL. II, PP. 356-358. 

THE FORMER POINTS OUT, OF THE PRESIDENT, THAT "HE ALSO KNEW THE
PENURIOUS CONDITION OF THE NATIVE POPULATIONS OF MOST OF THE ISLANDS,
AND CONSEQUENTLY DID NOT WANT TO ASSUME THE BURDEN OF ADMINISTERING
THOSE POPULATIONS.  THEREFORE HE HAD CHANGED, DURING MY ABSENCE FROM
WASHINGTON, FROM HIS ORIGINAL IDEA OF OUTRIGHT PURCHASE OF THE BASES TO
THAT OF NINETY-NINE-YEAR LEASES.  I HAD ORIGINALLY FAVORED OUTRIGHT
CESSION, BUT WAS WILLING TO AGREE TO LEASES INSTEAD."  P. 834. 

FN7  SEE PARLIAMENTARY DEBATES, COMMONS, VOL. 370, P. 255, ET SEQ.,
AND VOL. 376, P. 567, ET SEQ. 

FN8  55 STAT. 1560, 1572; EXECUTIVE AGREEMENT SERIES 235, DEPARTMENT
OF STATE (GPO 1942), PP. 14-15. 

FN9  STIMSON, "ON ACTIVE SERVICE IN PEACE AND WAR," VOL. II, P. 356. 

FN10  THE FOLLOWING STATUTES USE LANGUAGE EXPRESSLY COVERING THE
LEASED BASES OR LANGUAGE WHICH SEEMS TO IMPLY THAT THE STATUTE WILL
REACH AS FAR AS THERE IS POWER TO MAKE IT REACH: 

I. STATUTES WHICH EXPLICITLY COVER THE LEASED BASES: 

55 STAT. 622, AS AMENDED, 42 U.S.C. SEC. 1651(1). 

II.  STATUTES EMPLOYING THE PHRASE "PLACES SUBJECT TO THE
JURISDICTION OF THE UNITED STATES" OR SIMILARLY SWEEPING LANGUAGE: 

38 STAT. 270, AS AMENDED, 12 U.S.C. SEC. 466; 58 STAT. 624, AS
AMENDED, 10 U.S.C. SUPP. I, SEC. 1213; 56 STAT. 176, 15 U.S.C. SEC.
606B-2(A); 61 STAT. 512, 16 U.S.C. SUPP. I, SEC. 776A (C); 40 STAT.
231, 18 U.S.C. SEC. 39; 35 STAT. 1136, 18 U.S.C. SEC. 387; 35 STAT.
1138, AS AMENDED, 18 U.S.C. SEC. 396; 54 STAT. 1134, AS AMENDED, 18
U.S.C. SEC. 396A; 49 STAT. 494, 18 U.S.C. SEC. 396B; 35 STAT. 1148, 18
U.S.C. SEC. 511; 40 STAT. 559, AS AMENDED, 22 U.S.C. SEC. 226; 42 STAT.
361, 22 U.S.C. SEC. 409; 52 STAT. 631, AS AMENDED, 22 U.S.C. SEC.
611(M); 58 STAT. 643, 22 U.S.C. SEC. 701; 32 STAT. 172, AS AMENDED, 46
U.S.C. SEC. 95; REV. STAT. SEC. 4438A, AS AMENDED, 46 U.S.C. SEC. 224A
(6); 35 STAT. 1140, 46 U.S.C. SEC. 1351; 40 STAT. 217, 219, AS AMENDED,
50 U.S.C. SECS. 31, 37; 54 STAT. 1179, 50 U.S.C. APP. SEC. 512; 56
STAT. 177, AS AMENDED, 50 U.S.C. APP. SEC. 633(4), (6); 56 STAT. 185,
50 U.S.C. APP. SEC. 643A; 58 STAT. 624, 50 U.S.C. APP. SEC. 777; 56
STAT. 390, 50 U.S.C. APP. SEC. 781; 60 STAT. 211, 50 U.S.C. APP. SEC.
1828(C). 

FN11 THE FOLLOWING TABULATION OF STATUTES WHOSE COVERAGE PROVISIONS
ARE SO SIMILAR TO THOSE BEING CONSTRUED AS TO EITHER BE GOVERNED BY
TODAY'S DECISION OR TO REQUIRE MOST SOPHISTICATED DISTINCTIONS SHOWS IN
WHAT A NETWORK OF LEGISLATION THE COURT IS ENTANGLING THE BASES: 

I. STATUTES EMPLOYING THE TERM "POSSESSIONS," 

(A)  IN THE PHRASE "STATES, TERRITORIES, AND POSSESSIONS" OR THE
LIKE: 

43 STAT. 1070, AS AMENDED, 2 U.S.C. SEC. 241(I); 42 STAT. 998, 7
U.S.C. SEC. 3; 42 STAT. 159, 7 U.S.C. SEC. 182(6); 49 STAT. 731, 7
U.S.C. SEC. 511(I); 30 STAT. 544, AS AMENDED, 11 U.S.C. SEC. 1(10); 48
STAT. 2, 12 U.S.C. SEC. 202; 39 STAT. 601, AS AMENDED, 61 STAT. 786, 14
U.S.C. SUPP. I, SEC. 29; 55 STAT. 11, 12, AS AMENDED, 14 U.S.C. SUPP.
I, SECS. 302, 307; 48 STAT. 882, AS AMENDED, 15 U.S.C. SEC. 78(C)(16);
54 STAT. 790, 15 U.S.C. SEC. 80A-2(37); 44 STAT. 1406, 15 U.S.C. SEC.
402(C); 44 STAT. 1423, 15 U.S.C. SEC. 431; 47 STAT. 8, AS AMENDED, 61
STAT. 202, 15 U.S.C. SUPP. I, SEC. 607; 61 STAT. 515, 15 U.S.C. SUPP.
I, SEC. 619; 52 STAT. 1250, AS AMENDED, 15 U.S.C. SEC. 901(2); 56 STAT.
1087, 18 U.S.C. SEC. 420G (2); 42 STAT. 1486, 21 U.S.C. SEC. 61(B); 52
STAT. 1041, 21 U.S.C. SEC. 321(B); INT. REV. CODE SECS. 22(B)(4), 251,
252, 1621(A)(8)(B), 813(B); 49 STAT. 1928, 27 U.S.C. SEC. 222(A); 28
U.S.C. SEC. 411(A); 61 STAT. 150, 29 U.S.C. SUPP. I, SEC. 161(2); 61
STAT. 86, 90, 29 U.S.C. SUPP. I, SECS. 252(D), 262(E); 29 U.S.C. APP.
SUPP. I, SEC. 203.7; 55 STAT. 179, 30 U.S.C. SEC. 40; 54 STAT. 1086, 31
U.S.C. SEC. 123; REV. STAT. SEC. 3646, AS AMENDED, 31 U.S.C. SEC.
528(C); 61 STAT. 787, 33 U.S.C. SUPP. I, SECS. 883A, 883B; 44 STAT.
900, AS AMENDED, 39 U.S.C. SEC. 654(C); 49 STAT. 2038, 41 U.S.C. SEC.
39; 58 STAT. 682, AS AMENDED, 42 U.S.C. SEC. 201(G); 49 STAT. 624, AS
AMENDED, 42 U.S.C. SEC. 405(D); 50 STAT. 888, 42 U.S.C. SEC. 1402(12);
60 STAT. 774, 42 U.S.C. SEC. 1818; 35 STAT. 65, 45 U.S.C. SEC. 52; 52
STAT. 1107, AS AMENDED, 45 U.S.C. SEC. 362; 45 STAT. 1492, AS AMENDED,
46 U.S.C. SEC. 85; 49 STAT. 888, 46 U.S.C. SEC. 88; REV. STAT. SEC.
4472, AS AMENDED, 46 U.S.C. SEC. 170; REV. STAT. SEC. 4370, 46 U.S.C.
SEC. 316(A); 41 STAT. 996, AS AMENDED, 46 U.S.C. SEC. 813; 39 STAT.
735, 46 U.S.C. SECS. 819, 823, 826, 829; 40 STAT. 901, AS AMENDED, 46
U.S.C. SEC. 835(A), (D); 41 STAT. 998, 46 U.S.C. SECS. 880, 882, 883;
41 STAT. 1003, 46 U.S.C. SEC. 951; 49 STAT. 2016, 46 U.S.C. SEC.
1244(A), (B); 49 STAT. 1212, 46 U.S.C. SEC. 1312; 48 STAT. 1065, AS
AMENDED, 47 U.S.C. SEC. 153(E), (G); 48 STAT. 1084, 47 U.S.C. SEC.
308(C); 48 STAT. 1087, 47 U.S.C. SEC. 314; 44 STAT. 568, 572, 573, 49
U.S.C. SECS. 171, 176(C), 179; 52 STAT. 977, 979, 980, 984, 998, 49
U.S.C. SECS. 401(3), (21)(B), (29), (30), 425, 486; 40 STAT. 415, AS
AMENDED, 50 U.S.C. APP. SEC. 5; 60 STAT. 50, AS AMENDED, 50 U.S.C. APP.
SEC. 32(A)(2)(B); 54 STAT. 890, AS AMENDED, 50 U.S.C. APP. SEC. 308; 61
STAT. 31, 32, 50 U.S.C. APP. SUPP. I, SECS. 324, 326(A)(2), (3); 54
STAT. 859, AS AMENDED, 50 U.S.C. SUPP. I, SEC. 403(B)(A); 56 STAT. 777,
50 U.S.C. APP. SEC. 574; 59 STAT. 542, 50 U.S.C. APP. SEC. 639A; 56
STAT. 182, AS AMENDED, 50 U.S.C. APP SEC. 640; 55 STAT. 206, 50 U.S.C.
APP. SEC. 702; 56 STAT. 461-62, 50 U.S.C. APP. SECS. 791, 792, 793,
801; 56 STAT. 1041, 50 U.S.C. APP. SEC. 846; 56 STAT. 23, AS AMENDED,
50 U.S.C. APP. SEC. 901; 56 STAT. 245, AS AMENDED, 50 U.S.C. APP. SEC.
1191(I); 57 STAT. 162, AS AMENDED, 50 U.S.C. APP. SEC. 1472(A)(A); 

(B)  QUALIFIED, USUALLY IN A SIMILAR PHRASE, BY THE WORD "ISLAND" OR
"INSULAR": 

54 STAT. 1137, 1139, 8 U.S.C. SECS. 501(E), 604; 59 STAT. 526, AS
AMENDED, 12 U.S.C. SUPP. I, SEC. 635; 38 STAT. 730, 15 U.S.C. SEC. 12;
48 STAT. 74, AS AMENDED, 15 U.S.C. SEC. 77B (6); 61 STAT. 726, 16
U.S.C. SUPP. I, SEC. 758A; 56 STAT. 1046, 21 U.S.C. SEC. 188D; 56 STAT.
1063, 22 U.S.C. SEC. 672(B); INT. REV. CODE SECS. 2563, 2602, 2733(G);
49 STAT. 2011, AS AMENDED, 46 U.S.C. SEC. 1204; 40 STAT. 388, 50 U.S.C.
SEC. 137; 53 STAT. 812, 50 U.S.C. SEC. 98F. 

II.  STATUTES LISTED UNDER HEADING I ABOVE, THE APPLICATION OF WHICH
TO THE LEASED BASES MIGHT CAUSE CONFLICT WITH BERMUDIAN LAW: 

42 STAT. 998, AS AMENDED, 7 U.S.C. SEC. 3(COMMODITY EXCHANGE ACT); 42
STAT. 159, 7 U.S.C. SEC. 182(6)(PACKERS AND STOCKYARDS ACT, 1921); 49
STAT. 731, 7 U.S.C. SEC. 511(I)(TOBACCO INSPECTION ACT); 54 STAT. 1139,
8 U.S.C. SEC. 604(NATIONALITY ACT OF 1940); 59 STAT. 526, AS AMENDED,
12 U.S.C. SUPP. I, SEC. 635(EXPORT-IMPORT BANK ACT OF 1945); 55 STAT.
11, 12, AS AMENDED, 14 U.S.C. SUPP. I, SECS. 302, 307(COAST GUARD
RESERVE ACT); 38 STAT. 730, 15 U.S.C. SEC. 12(CLAYTON ACT); 42 STAT.
1486, 21 U.S.C. SEC. 61(B)(FILLED MILK ACT); 56 STAT. 1063, 22 U.S.C.
SEC. 672(B)(SETTLEMENT OF MEXICAN CLAIMS ACT); INT. REV. CODE SECS.
22(B)(4), 813(B); 29 U.S.C. APP. SUPP. I, SEC. 203.7(RULES AND
REGULATIONS IMPLEMENTING THE NATIONAL LABOR RELATIONS ACT AS AMENDED BY
THE LABOR MANAGEMENT RELATIONS ACT); 49 STAT. 624, AS AMENDED, 42
U.S.C. SEC. 405(D)(SUBPOENA PROVISION OF THE FEDERAL OLD-AGE AND
SURVIVORS INSURANCE BENEFITS ACT); 50 STAT. 888, 42 U.S.C. SEC.
1402(LOW RENT HOUSING ACT); 60 STAT. 774, 42 U.S.C. SEC. 1818(ATOMIC
ENERGY ACT); 35 STAT. 65, 45 U.S.C. SEC. 52(FEDERAL EMPLOYERS'
LIABILITY ACT); 52 STAT. 1107, AS AMENDED, 45 U.S.C. SEC. 362(RAILROAD
UNEMP.  INS.  ACT); REV. STAT. SEC. 4370, AS AMENDED, 46 U.S.C. SEC.
316(A)(ACT FOR THE REGULATION OF VESSELS IN DOMESTIC COMMERCE); 41
STAT. 999, 46 U.S.C. SEC. 883(MERCHANT MARINE ACT, 1920); 49 STAT.
2017, 46 U.S.C. SEC. 1244(A)(MERCHANT MARINE ACT, 1936); 49 STAT. 1212,
46 U.S.C. SEC. 1312(CARRIAGE OF GOODS BY SEA ACT); 48 STAT. 1065, 1084,
1087, AS AMENDED, 47 U.S.C. SECS. 153(E), (G), 308(C), 314
(COMMUNICATIONS ACT OF 1934); 44 STAT. 568, 572, 573, AS AMENDED, 49
U.S.C. SECS. 171, 176(C), 179(B)(AIR COMMERCE ACT OF 1926); 52 STAT.
977, 49 U.S.C. SEC. 401(3), (21)(B), (29), (30)(CIVIL AERONAUTICS ACT);
52 STAT. 998, 49 U.S.C. SEC. 486(SAME); 56 STAT. 182, 50 U.S.C. APP.
SEC. 640(AMENDMENT OF NATIONALITY ACT OF 1940); 55 STAT. 206, 50 U.S.C.
APP. SEC. 702(EXPORTATION RESTRICTION ACT); 56 STAT. 23, AS AMENDED, 50
U.S.C. APP. SEC. 901(EMERGENCY PRICE CONTROL ACT OF 1942). 

FN12  THE STATE DEPARTMENT'S LEGAL ADVISER, IN A LETTER TO THE
ATTORNEY GENERAL DATED JANUARY 30, 1948, WROTE, IN PART, AS FOLLOWS: 

"THE DEPARTMENT REGARDS AS UNFORTUNATE THE CONCLUSION OF THE COURT
(OF APPEALS) THAT THE U.S. EXERCISES AS COMPLETE CONTROL IN THE LEASED
AREAS AS IN OTHER AREAS LONG KNOWN AS 'POSSESSIONS' OF THE U.S., AND
ITS SPECIFIC REFERENCE IN THIS CONNECTION TO THE PHILIPPINE ISLANDS,
SWAINS ISLAND, SAMOA, GUAM AND THE GUANO ISLANDS OVER ALL OF WHICH THE
U.S. EXERCISES SOVEREIGNTY, EXCEPT THE PHILIPPINES OVER WHICH
SOVEREIGNTY WAS EXERCISED UNTIL THEY WERE GIVEN THEIR INDEPENDENCE ON
JULY 4, 1946, AND EXCEPT THE GUANO ISLANDS, OVER WHICH, IN GENERAL, THE
U.S. EXERCISES EXCLUSIVE JURISDICTION AND NO OTHER NATION CLAIMS
SOVEREIGNTY. 

"ANY HOLDING THAT THE BASES OBTAINED FROM THE GOVERNMENT OF GREAT
BRITAIN ON 99 YEAR LEASES ARE 'POSSESSIONS' OF THE UNITED STATES IN A
POLITICAL SENSE WOULD NOT IN THE DEPARTMENT'S VIEW BE CALCULATED TO
IMPROVE OUR RELATIONS WITH THAT GOVERNMENT.  MOREOVER, SUCH A HOLDING
MIGHT VERY WELL BE DETRIMENTAL TO OUR RELATIONS WITH OTHER FOREIGN
COUNTRIES IN WHICH MILITARY BASES ARE NOW HELD OR IN WHICH THEY MIGHT
IN THE FUTURE BE SOUGHT.  ...  " 

FN13  33 STAT. 2234, 2235. 

FN14  SECRETARY HUGHES TO THE PANAMANIAN MINISTER, OCT. 15, 1923, 2
HACKWORTH, DIGEST OF INTERNATIONAL LAW, PP. 801-805. 

FN15  JOINT STATEMENT OF PRESIDENT ROOSEVELT AND PRESIDENT ARIAS,
OCT. 17, 1933, ID., 806 ET SEQ.; GENERAL TREATY AND SUPPLEMENTARY
CONVENTIONS OF MARCH 2, 1936, RATIFIED JULY 26, 1939, 53 STAT. 1807. 

FN16  THE OTHER SUBPARAGRAPHS PROVIDE THAT THE UNITED STATES MUST
CONFORM TO THE LOCAL SYSTEM OF LIGHTS AND OTHER NAVIGATION AIDS, AND
REPORT IN ADVANCE TO LOCAL AUTHORITIES ANY SUCH DEVICES ESTABLISHED OR
CHANGED; THAT THE UNITED STATES IS EXEMPT FROM LOCAL PILOTAGE LAWS;
THAT BRITISH COMMERCIAL VESSELS MAY USE THE LEASED AREAS ON THE SAME
BASIS AS AMERICAN COMMERCIAL VESSELS; AND THAT COMMERCIAL UNITED STATES
AIRCRAFT CANNOT OPERATE FROM THE BASES FOR OTHER THAN MILITARY PURPOSES
EXCEPT BY AGREEMENT WITH THE UNITED KINGDOM. 

FN17  PRESIDENT WILSON, IN A MESSAGE DELIVERED IN PERSON TO THE
CONGRESS (51 CONG. REC. 4313), SAID: 

"WHATEVER MAY BE OUR OWN DIFFERENCES OF OPINION CONCERNING THIS MUCH
DEBATED MEASURE, ITS MEANING IS NOT DEBATED OUTSIDE THE UNITED STATES. 
EVERYWHERE ELSE THE LANGUAGE OF THE TREATY (WITH GREAT BRITAIN) IS
GIVEN BUT ONE INTERPRETATION, AND THAT INTERPRETATION PRECLUDES THE
EXEMPTION I AM ASKING YOU TO REPEAL. 

"WE CONSENTED TO THE TREATY (WITH GREAT BRITAIN); ITS LANGUAGE WE
ACCEPTED, IF WE DID NOT ORIGINATE; AND WE ARE TOO BIG, TOO POWERFUL,
TOO SELF-RESPECTING A NATION TO INTERPRET WITH TOO STRAINED OR REFINED
A READING THE WORDS OF OUR OWN PROMISES JUST BECAUSE WE HAVE POWER
ENOUGH TO GIVE US LEAVE TO READ THEM AS WE PLEASE.  THE LARGE THING TO
DO IS THE ONLY THING THAT WE CAN AFFORD TO DO, A VOLUNTARY WITHDRAWAL
FROM A POSITION EVERYWHERE QUESTIONED AND MISUNDERSTOOD. 

"WE OUGHT TO REVERSE OUR ACTION WITHOUT RAISING THE QUESTION WHETHER
WE WERE RIGHT OR WRONG, AND SO ONCE MORE DESERVE OUR REPUTATION FOR
GENEROSITY AND FOR THE REDEMPTION OF EVERY OBLIGATION WITHOUT QUIBBLE
OR HESITATION. 

"I ASK THIS OF YOU IN SUPPORT OF THE FOREIGN POLICY OF THE
ADMINISTRATION.  I SHALL NOT KNOW HOW TO DEAL WITH OTHER MATTERS OF
EVEN GREATER DELICACY AND NEARER CONSEQUENCE IF YOU DO NOT GRANT IT TO
ME IN UNGRUDGING MEASURE." 

FN18  AFTER HEARINGS, THE HOUSE COMMITTEE RECOMMENDED PASSAGE.  HOUSE
REPORT NO. 362, 63D CONG., 2D SESS.  THREE SEPARATE MINORITY REPORTS,
REFLECTING THE VIEWS OF FOUR COMMITTEE MEMBERS, WERE FILED.  ID.  THE
SENATE COMMITTEE HEARD TESTIMONY COVERING MORE THAN ONE THOUSAND
PAGES.  HEARINGS ON H.R. 14385, SENATE COMMITTEE ON INTEROCEANIC
CANALS, 63D CONG., 2D SESS.  THE ISSUE WAS SO EXPLOSIVE THAT THE
MEASURE WAS REPORTED BACK WITHOUT RECOMMENDATION.  S. REP. NO. 469, 63D
CONG., 2D SESS.  THE MEASURE WAS DEBATED FOR FIVE DAYS IN THE HOUSE, 51
CONG. REC., PT. 6, 5554-5602; 5605-5640; 5677-5767; 5797-5897; 5922
6089, AND MORE THAN A MONTH IN THE SENATE, 51 CONG. REC., PT. 8, 7660
7667; 7723-7727; 8155-8172; 8211-8229; 8277-8284; 51 CONG. REC., PT. 9,
8335-8340; 8428-8446; 8493-8507; 8548-8560; 8638-8642; 8693-8707; 8730
8741; 8803-8824; 8867; 8875-8888; 8941-8956; 9003-9031; 9209-9214; 9215
9243; 9291-9297; 51 CONG. REC., PT. 10, 9355-9365; 9435-9446; 9509
9526; 9626-9631; 9713-9722; 9723-9745; 9784-9788; 9916-9929; 9977
10008; 10041-10086; 10127-10174; 10195-10210; 10211-10248.  SEE ALSO
EXTENSION OF REMARKS AT 51 CONG. REC., PT. 17, PP. 252-253; 253-255;
258-263; 266-270; 279-280; 280; 280-281; 281-282; 282-290; 290-292; 292
294; 295-296; 296-298; 298; 298-299; 299-303; 306-307; 307-309; 309
315; 316-319; 319-324; 324-331; 331-333; 333-334; 334-335; 335; 335
339; 339-340; 352-353; 353-356; 370-372; 418-428; 539-543; 610-617; 644
645; 645-646; 646-647; 650. 

THE REPEALER WAS PASSED AS THE ACT OF JUNE 15, 1914, C. 106, 38 STAT.
385.  SEE ANNOTATIONS IN 48 U.S.C.A. SECS. 1315, 1317. 

FN19  35 OP. ATTY. GEN. 536, 540-541. 

FN20  SEE UNITED NATIONS, NON-SELF-GOVERNING TERRITORIES, SUMMARIES
OF INFORMATION TRANSMITTED TO THE SECRETARY-GENERAL DURING 1946(UN,
1947), P. 101. 

FN21  WAGE & HOUR MANUAL (1942 ED.)  30; 12 FED. REG. 4583-4584; 29
C.F.R. 1947 SUPP., SEC. 776.1. 

FN22  SEE NOTE 21.  SEE ALSO ADMINISTRATOR'S LETTER DATED MAY 22,
1942, STATING THAT THE ACT DOES NOT APPLY TO BASES IN THE "BRITISH WEST
INDIES" AND DEPUTY ADMINISTRATOR'S LETTER DATED SEPTEMBER 24, 1943,
WITH SPECIFIC REFERENCE TO THE LEASED AREA ON TRINIDAD. 

FN23  (A)  IN 1941 CONGRESS SOUGHT TO EXTEND TO THE LEASED BASES THE
PROVISIONS OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT
WHICH COVERED DEATH OR DISABILITY FROM AN INJURY OCCURRING UPON THE
NAVIGABLE WATERS OF THE UNITED STATES.  THE "UNITED STATES" WAS
THEREFORE DEFINED TO MEAN "THE SEVERAL STATES AND TERRITORIES AND THE
DISTRICT OF COLUMBIA, INCLUDING THE TERRITORIAL WATERS THEREOF."  44
STAT. 1424, 33 U.S.C. SEC. 902.  THE AMENDMENT, C. 357, 55 STAT. 622,
MADE THE ACT APPLICABLE TO INJURIES OR DEATH OF COVERED EMPLOYEES AT
ANY MILITARY, AIR OR NAVAL BASE ACQUIRED AFTER JANUARY 1, 1940, BY THE
UNITED STATES FROM ANY FOREIGN GOVERNMENT OR ANY LANDS OCCUPIED OR USED
BY THE UNITED STATES FOR MILITARY OR NAVAL PURPOSES IN ANY TERRITORY OR
POSSESSION OUTSIDE THE CONTINENTAL UNITED STATES, INCLUDING ALASKA,
GUANTANAMO, AND THE PHILIPPINE ISLANDS.  THIS ACT WAS AMENDED IN 1942,
C. 668, 56 STAT. 1028, 1035, AND, AS AMENDED, LISTS SEPARATELY (1)
BASES ACQUIRED FROM FOREIGN GOVERNMENTS AFTER JANUARY 1, 1940, AND (2)
LANDS USED FOR MILITARY OR NAVAL PURPOSES AND ANY TERRITORY OR
POSSESSION, INCLUDING ALASKA, THE PHILIPPINES, GUANTANAMO, AND THE
CANAL ZONE.  IT IS CLEAR THAT IN NEITHER 1941 NOR 1942 DID THE CONGRESS
CONSIDER THAT THE TERM "POSSESSION" ALONE WOULD HAVE EXTENDED COVERAGE
TO THE BASES. 

(B)  THE ACT OF MARCH 27, 1942, C. 198, 56 STAT. 174, DESIGNED TO
EXTEND WAR DAMAGE PROTECTION PROVIDES THAT SUCH PROTECTION SHALL BE
APPLICABLE ONLY (1) TO PROPERTY SITUATED IN THE UNITED STATES
(INCLUDING THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA), THE
PHILIPPINE ISLANDS, THE CANAL ZONE, THE TERRITORIES AND POSSESSIONS OF
THE UNITED STATES, AND IN SUCH OTHER PLACES AS MAY BE DETERMINED BY THE
PRESIDENT TO BE UNDER THE DOMINION AND CONTROL OF THE UNITED STATES. 
THE TERMS OF THIS ACT, AND ITS LEGISLATIVE HISTORY, INDICATE THAT THE
FINAL CLAUSE WAS ADDED TO COVER AREAS SUCH AS THESE BASES.  IF THE
CONGRESS HAD CONSIDERED AREAS OF THIS KIND TO BE "POSSESSIONS" SUCH A
CLAUSE WOULD SCARCELY HAVE BEEN NECESSARY. 

FN24  MORE THAN 100 YEARS AGO, MR. CHIEF JUSTICE MARSHALL, SPEAKING
FOR A UNANIMOUS COURT IN FOSTER V. NEILSON, 2 PET. 253, 307-309, SAID:
"  ...  IN A CONTROVERSY BETWEEN TWO NATIONS CONCERNING NATIONAL
BOUNDARY, IT IS SCARCELY POSSIBLE THAT THE COURTS OF EITHER SHOULD
REFUSE TO ABIDE BY THE MEASURES ADOPTED BY ITS OWN GOVERNMENT.  ...
THE JUDICIARY IS NOT THAT DEPARTMENT OF THE GOVERNMENT, TO WHICH THE
ASSERTION OF ITS INTERESTS AGAINST FOREIGN POWERS IS CONFIDED; AND ITS
DUTY COMMONLY IS TO DECIDE UPON INDIVIDUAL RIGHTS, ACCORDING TO THOSE
PRINCIPLES WHICH THE POLITICAL DEPARTMENTS OF THE NATION HAVE
ESTABLISHED.  IF THE COURSE OF THE NATION HAS BEEN A PLAIN ONE, ITS
COURTS WOULD HESITATE TO PRONOUNCE IT ERRONEOUS.  ... 

"AFTER THESE ACTS OF SOVEREIGN POWER OVER THE TERRITORY IN DISPUTE,
ASSERTING THE AMERICAN CONSTRUCTION OF THE TREATY BY WHICH THE
GOVERNMENT CLAIMS IT, TO MAINTAIN THE OPPOSITE CONSTRUCTION IN ITS OWN
COURTS WOULD CERTAINLY BE AN ANOMALY IN THE HISTORY AND PRACTICE OF
NATIONS.  IF THOSE DEPARTMENTS WHICH ARE ENTRUSTED WITH THE FOREIGN
INTERCOURSE OF THE NATION, WHICH ASSERT AND MAINTAIN ITS INTERESTS
AGAINST FOREIGN POWERS, HAVE UNEQUIVOCALLY ASSERTED ITS RIGHTS OF
DOMINION OVER A COUNTRY OF WHICH IT IS IN POSSESSION, AND WHICH IT
CLAIMS UNDER A TREATY; IF THE LEGISLATURE HAS ACTED ON THE CONSTRUCTION
THUS ASSERTED, IT IS NOT IN ITS OWN COURTS THAT THIS CONSTRUCTION IS TO
BE DENIED.  ...  " 

IN AN EARLIER CASE, THE AMIABLE ISABELLA, 6 WHEAT.  1, 71, MR.
JUSTICE STORY HAD SAID:  "IN THE FIRST PLACE, THIS COURT DOES NOT
POSSESS ANY TREATY-MAKING POWER.  THAT POWER BELONGS BY THE
CONSTITUTION TO ANOTHER DEPARTMENT OF THE GOVERNMENT; AND TO ALTER,
AMEND, OR ADD TO ANY TREATY, BY INSERTING ANY CLAUSE, WHETHER SMALL OR
GREAT, IMPORTANT OR TRIVIAL, WOULD BE ON OUR PART AN USURPATION OF
POWER, AND NOT AN EXERCISE OF JUDICIAL FUNCTIONS.  ...  " 

IF, AS MR. CHIEF JUSTICE MARSHALL STATED, THIS COURT SHOULD NOT, TO
DENY RIGHTS ASSERTED BY THE EXECUTIVE, PLACE A DIFFERENT INTERPRETATION
ON AN AGREEMENT WITH ANOTHER NATION, A FORTIORI, IT SHOULD NOT DO SO IN
ORDER TO ASSERT RIGHTS WHICH NOT ONLY ARE NOT ASSERTED BY OUR EXECUTIVE
OR BY THE CONGRESS, BUT ARE DENIED BY THEM AND BY THE OTHER SOVEREIGN
INVOLVED.  AND, TO ADD, TO THE AGREEMENT UNDER WHICH WE OCCUPY THE
LEASED AREAS, THAT AS A MATTER OF LAW THE BASES HAVE BECOME OUR
POSSESSIONS, IS CERTAINLY MORE THAN A TRIVIAL CHANGE IN THAT AGREEMENT,
IN DIRECT CONTRAVENTION OF THE CAUTION BY MR. JUSTICE STORY. 

FN25  SEE, E.G., THE STATUTES MENTIONED IN NOTE 23. 

FN26  SECTION 3(D) OF THE ACT PROVIDES THAT THE TERM "EMPLOYER" SHALL
NOT INCLUDE THE UNITED STATES.  29 U.S.C. SEC. 203(D). 

FN27  SEE PRESIDENT WILSON'S MESSAGE QUOTED NOTE 17; AND SEE NOTE
24. 

FN28  SINCE THE DISTRICT COURT ENTERED SUMMARY JUDGMENT BEFORE TRIAL
BASED ON A RULING THAT THE LEASED AREA IS NOT A POSSESSION OF THE
UNITED STATES, I ASSUME THAT THIS COURT'S AFFIRMANCE OF THE REVERSAL OF
THAT RULING LEAVES OPEN ON REMAND ALL OTHER QUESTIONS RELEVANT TO
RESPONDENTS' RIGHT OF RECOVERY, SUCH AS WHETHER OR NOT THEY WERE
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE, AS WELL
AS ANY DEFENSES WHICH MAY BE AVAILABLE TO PETITIONER. 

I AM AUTHORIZED TO STATE THAT THE CHIEF JUSTICE, MR. JUSTICE
FRANKFURTER AND MR. JUSTICE BURTON JOIN IN THIS OPINION. 
..END :
























ADKINS V. DUPONT CO., 335 U.S. 331 


NO. 1, MISC.  ARGUED OCTOBER 18, 1948.  - DECIDED NOVEMBER 22, 1948. 


1.  UNDER THE ACT OF JULY 20, 1892, 27 STAT. 252, AS AMENDED, 28
U.S.C. (1946 ED.)  SEC.  832 ET SEQ. (NOW 28 U.S.C. SEC. 1915), AND
RULE 75(M) OF THE FEDERAL RULES OF CIVIL PROCEDURE, A FEDERAL COURT IS
NOT WITHOUT POWER TO PROTECT THE PUBLIC FROM HAVING TO PAY HEAVY COSTS
INCIDENT TO THE INCLUSION OF UNNECESSARY MATTERS IN THE RECORD IN AN IN
FORMA PAUPERIS APPEAL.  P. 337. 

(A)  IT MAY DENY LEAVE TO APPEAL IN FORMA PAUPERIS IF THE APPLICANT
WRONGFULLY PERSISTS IN INCLUDING IN THE RECORD ON APPEAL MASSES OF
MATTER PLAINLY IRRELEVANT TO THE ISSUES RAISED ON APPEAL.  P. 337. 

(B)  UNDER RULE 75(M) OF THE FEDERAL RULES OF CIVIL PROCEDURE, IT MAY
SAVE THE COSTS OF PRINTING BY PROVIDING FOR A TYPEWRITTEN RECORD.  P.
337. 

2.  ON A MOTION IN A FEDERAL DISTRICT COURT TO ALLOW AN APPEAL IN
FORMA PAUPERIS, CLAIMANTS FILED AFFIDAVITS ESTIMATING THAT THE COST OF
PRINTING THE RECORD WOULD BE $4,000 AND STATING THAT EACH OF THEM WAS
UNABLE TO PAY OR GIVE SECURITY FOR THE COSTS.  HELD:  THE COURT WAS
JUSTIFIED IN LOOKING FURTHER TO SEE IF THE COSTS REALLY SHOULD HAVE
BEEN $4,000 AND, IF NOT, IN REQUIRING AFFIDAVITS MADE WITH AN
APPRECIATION OF THE LESSER AMOUNT OF EXPENSE.  PP. 338-339. 

3.  ON A MOTION IN A FEDERAL COURT FOR LEAVE TO APPEAL IN FORMA
PAUPERIS, AN AFFIDAVIT IS SUFFICIENT WHICH STATES THAT AFFIANT CANNOT,
BECAUSE OF POVERTY, "PAY OR GIVE SECURITY FOR COSTS ...  AND STILL BE
ABLE TO PROVIDE" HIMSELF AND DEPENDENTS "WITH THE NECESSITIES OF
LIFE."  ONE NEED NOT BE ABSOLUTELY DESTITUTE TO ENJOY THE BENEFIT OF
THE IN FORMA PAUPERIS STATUTE.  PP. 339-340. 

4.  IN A SUIT IN A FEDERAL DISTRICT COURT, ONE OF SEVERAL CLAIMANTS
CANNOT BE DENIED A RIGHT OF APPEAL IN FORMA PAUPERIS MERELY BECAUSE
OTHER CLAIMANTS WILL NEITHER GIVE SECURITY FOR COSTS NOR SIGN AN
AFFIDAVIT OF POVERTY.  P. 340. 

5.  COUNSEL EMPLOYED ON A CONTINGENT FEE BASIS TO REPRESENT A POOR
PLAINTIFF IN A FEDERAL DISTRICT COURT NEED NOT FILE AFFIDAVITS SHOWING
THAT THEY ARE UNABLE ON ACCOUNT OF POVERTY TO PAY OR GIVE SECURITY FOR
COSTS IN ORDER FOR THEIR CLIENT TO BE ALLOWED TO APPEAL IN FORMA
PAUPERIS.  PP. 340-344. 

ADKINS, ADMINISTRATRIX, V. E. I. DUPONT DE NEMOURS & CO., INC. UNITED
STATES, INTERVENOR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

IN A SUIT FOR OVERTIME PAY UNDER THE FAIR LABOR STANDARDS ACT AND
EXECUTIVE ORDER NO. 9240, AS AMENDED, THE DISTRICT COURT AND THE COURT
OF APPEALS DENIED LEAVE TO APPEAL IN FORMA PAUPERIS.  PLAINTIFF
PETITIONED THIS COURT FOR A WRIT OF CERTIORARI AND MOVED FOR LEAVE TO
PROCEED IN FORMA PAUPERIS.  ON JUNE 1, 1948, THIS COURT ENTERED AN
ORDER ASSIGNING THE MOTION FOR ARGUMENT ON OCTOBER 18, 1948, AND
STATING THAT IT DESIRED "TO HEAR ARGUMENT UPON THE QUESTIONS PRESENTED
BY THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, INCLUDING THE
QUESTION AS TO THE VALIDITY OF A CONTINGENT FEE AGREEMENT IN CONNECTION
WITH A SUIT BROUGHT PURSUANT TO THE FAIR LABOR STANDARDS ACT."  THIS
COURT NOW GRANTS CERTIORARI (P. 336), VACATES THE ORDERS DENYING APPEAL
IN FORMA PAUPERIS, AND REMANDS THE CASE TO THE DISTRICT COURT.  P.
344. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS PRESENTED CHIEFLY INVOLVE THE SCOPE AND APPLICATION OF
THE STATUTE WHICH AUTHORIZES A CITIZEN TO PROSECUTE OR DEFEND ACTIONS
IN FEDERAL COURTS "WITHOUT BEING REQUIRED TO PREPAY FEES OR COSTS OR
FOR THE PRINTING OF THE RECORD IN THE APPELLATE COURT  ...  UPON FILING
IN SAID COURT A STATEMENT UNDER OATH IN WRITING, THAT BECAUSE OF HIS
POVERTY HE IS UNABLE TO PAY THE COSTS OF SAID SUIT OR ACTION OR APPEAL,
OR TO GIVE SECURITY FOR THE SAME,  ...  "  FN1 

THIS ACTION WAS FILED IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA BY P.V. ADKINS.  MR. ADKINS DIED WHILE
THE LITIGATION WAS PENDING AND HIS WIFE HAVING BEEN APPOINTED
ADMINISTRATRIX OF HIS ESTATE WAS SUBSTITUTED AS PLAINTIFF.  THE
ORIGINAL COMPLAINT CLAIMED OVERTIME COMPENSATION, DAMAGES AND
ATTORNEYS' FEES ON BEHALF OF MR. ADKINS AND TWELVE OTHER EMPLOYEES OF
THE RESPONDENT  FN2  "UNDER AND PURSUANT TO THE FAIR LABOR STANDARDS
ACT OF 1938(TITLE 29, U.S.C.A. SECS. 201-219) AND EXECUTIVE ORDER #9240
AS AMENDED (TITLE 40 U.S.C.A. FOLLOWING SEC. 326) ...  "  FN3 

FROM A DISMISSAL OF HER COMPLAINT IN THE DISTRICT COURT AND THE
DENIAL BY THAT COURT OF HER MOTION TO SET THE DISMISSAL ASIDE AND GRANT
A NEW TRIAL, PETITIONER FILED IN THE DISTRICT COURT A MOTION TO APPEAL
TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.  SHE ALSO
FILED A MOTION THAT THE APPEAL BE ALLOWED IN FORMA PAUPERIS.  HER
AFFIDAVIT IN SUPPORT OF THIS MOTION STATED THAT PETITIONER WAS A WIDOW
74 YEARS OF AGE; THE ESTIMATED COSTS OF THE APPEAL RECORD WOULD BE
APPROXIMATELY $4,000; ALL SHE HAD WAS A HOME, INHERITED FROM HER
HUSBAND, APPRAISED AT $3,450; HER ONLY SOURCE OF INCOME WAS RENT FROM
PARTS OF HER HOME; AND WITHOUT SUCH INCOME SHE WOULD NOT BE ABLE TO
PURCHASE THE NECESSITIES OF LIFE.  NO OBJECTION APPEARS TO HAVE BEEN
FILED TO HER MOTION TO APPEAL IN FORMA PAUPERIS, BUT THE MOTION WAS
DENIED BY THE COURT.  APPARENTLY DENIAL WAS FOR TWO REASONS:  (1) SHE
COULD NOT PROCEED IN FORMA PAUPERIS WHERE THERE WERE TWELVE OTHER
CLAIMANTS INVOLVED WHO HAD FILED NO AFFIDAVITS OF POVERTY; (2) THE
COURT ASSUMED THAT PETITIONER'S LAWYERS WERE EMPLOYED ON A CONTINGENT
FEE BASIS, AND WAS OF OPINION THAT SHE THEREFORE COULD NOT APPEAL IN
FORMA PAUPERIS UNLESS THE LAWYERS EITHER PREPAID THE COSTS, GAVE
SECURITY FOR COSTS OR FILED AN AFFIDAVIT OF THEIR POVERTY ALONG WITH
PETITIONER AND ALL OTHER CLAIMANTS. 

PETITIONER THEN FILED AN APPLICATION FOR APPEAL IN FORMA PAUPERIS IN
THE UNITED STATES COURT OF APPEALS.  THIS APPLICATION WAS DENIED.  THE
DENIAL, SO THE RECORD INDICATES, WAS ON THE GROUND THAT TO APPEAL IN
FORMA PAUPERIS, MRS. ADKINS, THE TWELVE EMPLOYEES, AND ALL THE MEMBERS
OF THE LAW FIRM REPRESENTING HER WOULD HAVE TO MAKE AFFIDAVITS OF
POVERTY. 

PETITIONER THEN WENT BACK TO THE DISTRICT COURT.  TEN OF THE TWELVE
EMPLOYEES FILED AFFIDAVITS IN EACH OF WHICH THIS STATEMENT APPEARED:  "
...  BECAUSE OF MY POVERTY I AM UNABLE TO PAY OR GIVE SECURITY FOR THE
COSTS ($4,000) OF SUCH APPEAL AND STILL BE ABLE TO PROVIDE MYSELF AND
MY DEPENDENTS WITH THE NECESSITIES OF LIFE."  AN AFFIDAVIT WITH
IDENTICAL LANGUAGE WAS FILED BY ONE MEMBER OF THE FIRM OF LAWYERS
REPRESENTING PETITIONER.  THE AFFIDAVIT ALSO STATED THAT THE FIRM'S
INTEREST IN ALL FEES FROM THIS LITIGATION HAD BEEN ASSIGNED TO
AFFIANT.  NO AFFIDAVIT OF POVERTY WAS FILED BY THE OTHER MEMBERS OF THE
FIRM.  AN AFFIDAVIT WAS FILED FOR THE FIRM, HOWEVER, STATING A BELIEF
THAT THE CLAIMS WERE MERITORIOUS, THAT APPEAL COSTS HAD BEEN ESTIMATED
AT ABOUT $4,000, AND THAT THE TOTAL LIQUID ASSETS OF THE FIRM DID NOT
EXCEED $2,000.  ONE OF THE TWELVE CLAIMANTS COULD NOT BE LOCATED AND
ONE REFUSED TO SIGN AN AFFIDAVIT OF POVERTY. 

THE DISTRICT JUDGE FOR THE SECOND TIME DENIED THE MOTION TO PERMIT
APPEAL WITHOUT SECURITY FOR COSTS.  HIS GROUNDS SEEM TO HAVE BEEN
THESE.  TWO OF THE CLAIMANTS HAD SIGNED NO AFFIDAVIT OF POVERTY; UNLESS
ALL SIGNED, THERE COULD BE NO IN FORMA PAUPERIS APPEAL.  THE AFFIDAVITS
OF PETITIONER, THE TEN CLAIMANTS, AND THE ATTORNEYS WERE HELD
INSUFFICIENT IN THAT THEY FAILED TO SHOW THE PRECISE FINANCIAL
CONDITION OF AFFIANTS, "WHETHER THEY WERE OR WERE NOT WITHOUT
PROPERTY."  THE JUDGE WAS NOT SURE JUST WHAT AFFIANTS WOULD HAVE TO
SHOW AS TO PROPERTY, BUT FELT THAT EACH SHOULD PROVE A COMPLETE
INABILITY TO PAY AT LEAST A PORTION OF THE COSTS.  ALL INTERESTED IN
THE RECOVERY, HE THOUGHT, INCLUDING THE LAWYERS, "HAVE AT LEAST GOT TO
CHIP IN TO THE EXTENT OF THEIR ABILITY TO PAY; AND WHATEVER THEY HAVE,
THEY HAVE GOT TO PUT IN THE POT FOR THE PURPOSE OF TAKING THE APPEAL." 
THE JUDGE WAS "INCLINED TO BELIEVE BUT NOT SURE" THAT BEFORE MRS.
ADKINS COULD BE PERMITTED TO APPEAL IN FORMA PAUPERIS SHE MUST MORTGAGE
HER HOME AND "CHIP IN" WHAT SHE RECEIVED ON THE MORTGAGE LOAN.  HE
CONSTRUED ALL THE AFFIDAVITS AS SHOWING NO MORE THAN THAT IT WOULD
CONSTITUTE A HARDSHIP TO PAY OR GIVE SECURITY FOR THE PAYMENT OF $4,000
TO MAKE THE RECORD.  THIS STATEMENT AS TO "HARDSHIP" HE THOUGHT DID NOT
MEET THE STATUTORY REQUIREMENT FOR AN AFFIDAVIT OF INABILITY TO PAY OR
SECURE COSTS DUE TO "POVERTY." 

FURTHERMORE, THE JUDGE THOUGHT PETITIONER HAD DESIGNATED MORE FOR THE
RECORD THAN WAS NEEDED TO DECIDE THE DISMISSAL QUESTION RAISED BY THE
APPEAL.  HE THEREFORE BELIEVED THAT A $4,000 RECORD WAS "WHOLLY
UNNECESSARY."  SINCE THE JUDGE BELIEVED HE WAS WITHOUT POWER DIRECTLY
TO LIMIT THE CONTENTS OF THE APPELLATE RECORD, HE FELT "PERSUADED TO BE
MORE TECHNICAL AND MORE STRICT" ON THE TYPE OF IN FORMA PAUPERIS
AFFIDAVITS HE REQUIRED. 

THE COURT OF APPEALS THEREAFTER DENIED A SECOND MOTION OF PETITIONER
TO ACCEPT ITS APPEAL IN FORMA PAUPERIS.  PETITIONER THEN APPLIED TO
THIS COURT FOR CERTIORARI TO REVIEW THE ACTIONS OF THE COURT OF APPEALS
AND OF THE DISTRICT COURT IN DENYING PETITIONER LEAVE TO APPEAL IN
FORMA PAUPERIS.  PETITIONER FURTHER ASKED THE COURT FOR LEAVE TO
PROCEED HERE WITHOUT GIVING SECURITY FOR COSTS.  WE SET THE MOTION DOWN
FOR ARGUMENT.  THE MATTER HAS NOW BEEN SUBMITTED ON BRIEFS AND ORAL
ARGUMENT.  THE AFFIDAVITS OF POVERTY FILED TO PROCEED HERE IN FORMA
PAUPERIS ARE THE SAME AS THE AFFIDAVITS FILED IN THE TWO COURTS BELOW. 

IF THESE AFFIDAVITS ARE THOUGHT TO BE INSUFFICIENT TO SUPPORT HER
MOTION, THE PETITIONER URGES THAT WE GIVE DIRECTIONS CONCERNING
ADDITIONAL REQUIREMENTS.  WHILE FOR OUR PURPOSES THE AFFIDAVITS WOULD
HAVE BEEN MORE ACCEPTABLE HAD THEY MERELY FOLLOWED THE LANGUAGE OF THE
STATUTE, OUR RULES HAVE PROVIDED NO PRECISE REQUIREMENTS.  BUT THE ONLY
QUESTIONS PRESENTED HERE RELATE TO THE SUFFICIENCY OF THESE AFFIDAVITS
IN THE TWO COURTS BELOW.  AND TO REACH THESE QUESTIONS, WHICH ARE
IMPORTANT, WE MUST EITHER ACCEPT THE AFFIDAVITS AS SUFFICIENT OR DELAY
FINAL CONSIDERATION OF THE CASE.  WE ACCEPT THE AFFIDAVITS, GRANT THE
PETITION FOR CERTIORARI, AND THE CASE HAVING BEEN FULLY ARGUED, WE
PROCEED TO PASS ON THE QUESTIONS PRESENTED SO FAR AS NECESSARY.  SEE
STEFFLER V. UNITED STATES, 319 U.S. 38. 

FIRST.  WE DO NOT THINK THE COURT WAS WITHOUT POWER TO PROTECT THE
PUBLIC FROM HAVING TO PAY HEAVY COSTS INCIDENT TO THE INCLUSION OF
"WHOLLY UNNECESSARY" MATTERS IN AN IN FORMA PAUPERIS APPEAL.  SECTIONS
1 AND 4 OF THE STATUTE PROVIDE THAT A COURT MAY EXERCISE A LIMITED
JUDICIAL DISCRETION IN THE GRANT OR DENIAL OF THE RIGHT AND THIS COURT
HAS SO HELD.  KINNEY V. PLYMOUTH ROCK SQUAB CO., 236 U.S. 43, 45, 46. 
RULE 75(M) OF OUR PRESENT RULES OF CIVIL PROCEDURE READS AS FOLLOWS: 

APPEALS IN FORMA PAUPERIS.  UPON LEAVE TO PROCEED IN FORMA PAUPERIS,
THE DISTRICT COURT MAY BY ORDER SPECIFY SOME DIFFERENT AND MORE
ECONOMICAL MANNER BY WHICH THE RECORD ON APPEAL MAY BE PREPARED AND
SETTLED, TO THE END THAT THE APPELLANT MAY BE ENABLED TO PRESENT HIS
CASE TO THE APPELLATE COURT.  (329 U.S. 870.) 

WE KNOW OF FEW MORE APPROPRIATE OCCASIONS FOR USE OF A COURT'S
DISCRETION THAN ONE IN WHICH A LITIGANT, ASKING THAT THE PUBLIC PAY
COSTS OF HIS LITIGATION, EITHER CARELESSLY OR WILFULLY AND STUBBORNLY
ENDEAVORS TO SADDLE THE PUBLIC WITH WHOLLY UNCALLED-FOR EXPENSE.  SO
HERE, THE COURT WAS NOT REQUIRED TO GRANT THE PETITIONER'S MOTION IF
SHE WRONGFULLY PERSISTED IN INCLUDING IN THE APPEAL RECORD MASSES OF
MATTER PLAINLY IRRELEVANT TO THE ISSUES RAISED ON APPEAL.  SEE
ESTABROOK V. KING, 119 F.2D 607, 610.  AND, OF COURSE, UNDER RULE 75(M)
THE COURT MAY SAVE THE COSTS OF PRINTING BY PROVIDING FOR A TYPEWRITTEN
RECORD.  IF EXERCISE OF DISCRETION BY A DISTRICT COURT SHOULD RESULT IN
AN UNFAIR AND INCOMPLETE RECORD TO A LITIGANT'S INJURY, THE COURT'S
ERROR COULD BE REMEDIED.  ITS ACTION WOULD BE SUBJECT TO REVIEW BY THE
APPELLATE COURT.  MOREOVER, IF IN OBEDIENCE TO COURT ORDER A PARTY
SHOULD AGREE TO A RECORD INADEQUATE FOR APPELLATE COURT PURPOSES, THAT
COURT WOULD HAVE POWER, UPON MOTION OR SUA SPONTE, TO REQUIRE ADDITION
OF MATERIAL NECESSARY TO ENABLE THE COURT FAIRLY TO DECIDE THE APPEAL
QUESTIONS PRESENTED.  FN4 

SECOND.  THE STATUTE ALLOWING IN FORMA PAUPERIS APPEALS PROVIDES
LANGUAGE APPROPRIATE FOR INCORPORATION IN AN AFFIDAVIT.  ONE WHO MAKES
THIS AFFIDAVIT EXPOSES HIMSELF "TO THE PAINS OF PERJURY IN A CASE OF
BAD FAITH."  POTHIER V. RODMAN, 261 U.S. 307, 309.  THIS CONSTITUTES A
SANCTION IMPORTANT IN PROTECTION OF THE PUBLIC AGAINST A FALSE OR
FRAUDULENT INVOCATION OF THE STATUTE'S BENEFITS.  FURTHERMORE, THE
STATUTE PROVIDES OTHER SANCTIONS TO PROTECT AGAINST FALSE AFFIDAVITS. 
POVERTY "IF IT BE MADE TO APPEAR THAT THE ALLEGATION OF POVERTY IS
UNTRUE."  AND SEC. 5 PROVIDES ANOTHER SAFEGUARD AGAINST LOSS BY THE
GOVERNMENT DUE TO FALSE AFFIDAVITS IN THAT A COURT IS PERMITTED, IN ITS
DISCRETION, TO RENDER JUDGMENT FOR COSTS "AT THE CONCLUSION OF THE SUIT
AS IN OTHER CASES."  CONSEQUENTLY, WHERE THE AFFIDAVITS ARE WRITTEN IN
THE LANGUAGE OF THE STATUTE IT WOULD SEEM THAT THEY SHOULD ORDINARILY
BE ACCEPTED, FOR TRIAL PURPOSES, PARTICULARLY WHERE UNQUESTIONED AND
WHERE THE JUDGE DOES NOT PERCEIVE A FLAGRANT MISREPRESENTATION. 

HERE, THE AFFIDAVITS WERE NOT COUCHED IN THE LANGUAGE OF THE
STATUTE.  THEY WENT OUTSIDE THAT LANGUAGE.  ESTIMATING THAT THE COSTS
WOULD BE $4,000, EACH AFFIDAVIT STATED THAT THE AFFIANT COULD NOT PAY
OR SECURE $4,000.  IN OTHER WORDS, THE AFFIDAVITS HERE TIED INABILITY
TO PAY TO A FIXED COST OF $4,000.  UNDER THESE CIRCUMSTANCES, WE THINK
THE COURT WAS JUSTIFIED IN LOOKING FURTHER TO SEE IF THE COST REALLY
SHOULD HAVE BEEN $4,000 AND IF NOT, THE JUDGE WAS RIGHT IN REQUIRING
AFFIDAVITS MADE WITH AN APPRECIATION BY AFFIANTS OF THE LESSER AMOUNT
OF EXPENSE TO WHICH THEY MIGHT BE SUBJECTED BY THE APPEAL. 

THIRD.  WE CANNOT AGREE WITH THE COURT BELOW THAT ONE MUST BE
ABSOLUTELY DESTITUTE TO ENJOY THE BENEFIT OF THE STATUTE.  WE THINK AN
AFFIDAVIT IS SUFFICIENT WHICH STATES THAT ONE CANNOT BECAUSE OF HIS
POVERTY "PAY OR GIVE SECURITY FOR THE COSTS  ...  AND STILL BE ABLE TO
PROVIDE" HIMSELF AND DEPENDENTS "WITH THE NECESSITIES OF LIFE."  TO SAY
THAT NO PERSONS ARE ENTITLED TO THE STATUTEHS BENEFITS UNTIL THEY HAVE
SWORN TO CONTRIBUTE TO PAYMENT OF COSTS, THE LAST DOLLAR THEY HAVE OR
CAN GET, AND THUS MAKE THEMSELVES AND THEIR DEPENDENTS WHOLLY
DESTITUTE, WOULD BE TO CONSTRUE THE STATUTE IN A WAY THAT WOULD THROW
ITS BENEFICIARIES INTO THE CATEGORY OF PUBLIC CHARGES.  THE PUBLIC
WOULD NOT BE PROFITED IF RELIEVED OF PAYING COSTS OF A PARTICULAR
LITIGATION ONLY TO HAVE IMPOSED ON IT THE EXPENSE OF SUPPORTING THE
PERSON THEREBY MADE AN OBJECT OF PUBLIC SUPPORT.  NOR DOES THE RESULT
SEEM MORE DESIRABLE IF THE EFFECT OF THIS STATUTORY INTERPRETATION IS
TO FORCE A LITIGANT TO ABANDON WHAT MAY BE A MERITORIOUS CLAIM IN ORDER
TO SPARE HIMSELF COMPLETE DESTITUTION.  WE THINK A CONSTRUCTION OF THE
STATUTE ACHIEVING SUCH CONSEQUENCES IS AN INADMISSIBLE ONE.  SEE CASES
COLLECTED IN 6 A.L.R. 1281-1287 FOR A DISCUSSION AS TO WHETHER A
SHOWING OF COMPLETE DESTITUTION SHOULD BE MADE UNDER THIS AND SIMILAR
STATUTES. 

FOURTH.  WE DO NOT THINK THAT THIS PETITIONER CAN BE DENIED A RIGHT
OF APPEAL UNDER THE STATUTE MERELY BECAUSE OTHER CLAIMANTS WILL NEITHER
GIVE SECURITY FOR COSTS NOR SIGN AN AFFIDAVIT OF POVERTY.  THIS CASE
ILLUSTRATES THAT SUCH A RESTRICTIVE INTERPRETATION OF THIS STATUTE
MIGHT WHOLLY DEPRIVE ONE OF SEVERAL LITIGANTS OF A RIGHT OF APPEAL,
EVEN THOUGH HE HAD A MERITORIOUS CASE AND EVEN THOUGH HIS POVERTY MADE
IT IMPOSSIBLE FOR HIM TO PAY OR GIVE SECURITY FOR COSTS.  SUCH A
DEPRIVATION WOULD FRUSTRATE THE BASIC PURPOSE OF THE STATUTE.  THIS
DOES NOT MEAN THAT ONE OF SEVERAL CLAIMANTS FINANCIALLY ABLE BUT
UNWILLING TO PAY HIS PROPORTIONATE PART OF THE COSTS COULD DEMAND THE
BENEFITS OF AN APPEAL PERFECTED BY ANOTHER CLAIMANT UNDER THE IN FORMA
PAUPERIS STATUTE.  BUT IT DOES MEAN IN THIS CASE THAT THE PETITIONER,
UPON MAKING THE REQUIRED AFFIDAVIT OF POVERTY, WAS ENTITLED TO
APPELLATE REVIEW OF THE ISSUES THE DISTRICT COURT DECIDED AGAINST HER,
WITHOUT REGARD TO WHETHER OTHER CLAIMANTS FILED AN AFFIDAVIT OF
POVERTY, OR PAID OR SECURED THEIR FAIR PART OF THE COSTS. 

FIFTH.  PETITIONER'S APPEAL UNDER THE STATUTE WAS DENIED IN PART
BECAUSE HER ATTORNEYS, THOUGHT BY THE DISTRICT COURT TO HAVE BEEN
EMPLOYED ON A CONTINGENT FEE BASIS, HAD NOT SHOWN TO THE COURT'S
SATISFACTION THAT THEY WERE UNABLE ON ACCOUNT OF POVERTY TO PAY OR GIVE
SECURITY FOR COSTS.  WE THINK THE STATUTE IMPOSES NO SUCH BURDEN ON A
LAWYER WHO IS TO SHARE IN THE RECOVERY THROUGH CONTRACT BY REASON OF
HIS LEGAL SERVICES.  WE ARE AWARE THAT SOME DISTRICT AND CIRCUIT COURTS
OF APPEAL HAVE SO CONSTRUED THE ACT,  FN5  AND THAT SOME HAVE EVEN
ADOPTED RULES WHICH IMPOSE THIS REQUIREMENT ON LAWYERS.  FN6  OTHER
DISTRICT AND CIRCUIT COURTS OF APPEAL HAVE DECLINED TO INTERPRET THE
STATUTE AS IMPOSING SUCH A BURDEN ON LAWYERS WHO REPRESENT LITIGANTS
TOO POOR TO PAY OR SECURE THE COSTS.  FN7 

MANY STATES, APPARENTLY INCLUDING OKLAHOMA WHERE THIS CASE WAS TRIED,
FN8  MAKE IT ILLEGAL FOR LAWYERS TO SIGN A BOND TO SECURE COSTS FOR
THEIR CLIENTS IN ANY CIVIL OR CRIMINAL ACTION.  IT WOULD HAVE BEEN AN
INNOVATION HAD CONGRESS IN THIS STATUTE EXPRESSLY PERMITTED LAWYERS
TRYING CASES IN FEDERAL COURTS TO CONTRACT WITH THEIR CLIENTS TO PAY OR
SECURE COSTS IN THEIR CLIENTS' CASES.  BUT IT WOULD HAVE BEEN A
SURPRISING LEGISLATIVE INNOVATION FOR CONGRESS TO COMMAND THAT LAWYERS
PAY OR SECURE SUCH COSTS.  THAT CONGRESS DID NOT DO THIS SEEMS TO BE
STRONGLY INDICATED BY THE BASIC STATUTE ITSELF. 

SHALL BE DENIED AN OPPORTUNITY TO COMMENCE, PROSECUTE, OR DEFEND AN
ACTION, CIVIL OR CRIMINAL, "IN ANY COURT OF THE UNITED STATES" SOLELY
BECAUSE HIS POVERTY MAKES IT IMPOSSIBLE FOR HIM TO PAY OR SECURE THE
COSTS.  NOT CONTENT WITH THIS SAFEGUARD FOR THE POOR IN FEDERAL COURTS,
CONGRESS IN SEC. 4 OF THE ACT PROVIDED THAT "THE COURT MAY REQUEST ANY
ATTORNEY OF THE COURT TO REPRESENT SUCH POOR PERSON, IF IT DEEMS THE
CAUSE WORTHY OF A TRIAL,  ...  " CERTAINLY A LAWYER APPOINTED UNDER
SEC. 4 COULD NOT BE REQUIRED TO PAY THE COSTS OF AN APPEAL.  NOR COULD
SUCH AN APPOINTED LAWYER HAVE A BURDEN OF THIS KIND CAST UPON HIM IF
CONGRESS HAD REQUIRED PAYMENT OF A FEE FOR APPOINTED COUNSEL IN AN
AMOUNT FIXED AS REASONABLE BY THE COURT, A REQUIREMENT THAT SOME STATE
LAWS HAVE PROVIDED.  FN9 YET, SUCH A "REASONABLE FEE" FIXED BY A COURT
WOULD BE A "CONTINGENT FEE" SHOULD WE ACCEPT RESPONDENT'S ARGUMENT IN
THIS CASE.  FOR RESPONDENT CONTENDS THAT BECAUSE THE FAIR LABOR
STANDARDS ACT AUTHORIZES A COURT TO FIX A REASONABLE FEE FOR ATTORNEYS
PROSECUTING OVERTIME CLAIMS FOR EMPLOYEES, THIS PETITIONER'S LAWYERS
ARE ON A CONTINGENT FEE BASIS.  THEY THEREFORE ACCORDING TO RESPONDENT
HAVE A FINANCIAL INTEREST IN THE RECOVERY.  CONSEQUENTLY, RESPONDENT
ARGUES, PETITIONER MUST ABANDON HER APPEAL AND HER CLAIM UNLESS THESE
LAWYERS PAY COSTS, SECURE THEM, OR MAKE AFFIDAVITS OF POVERTY. 

NO PROOF IS NEEDED THAT IMPOSITION OF SUCH ONEROUS BURDENS ON
EMPLOYEES' LAWYERS WOULD PUT SERIOUS OBSTACLES IN THE WAY OF EMPLOYEES
OBTAINING THE KIND OF LEGAL REPRESENTATION CONGRESS INTENDED TO PROVIDE
FOR THEM IN THE FAIR LABOR STANDARDS ACT.  AND SINCE SEC. 4 OF THE IN
FORMA PAUPERIS STATUTE WAS PLAINLY INTENDED TO ASSURE LEGAL
REPRESENTATION TO THE POOR, IT IS ALSO OBVIOUS THAT THE PURPOSE OF THAT
ACT COULD BE FRUSTRATED IN PART BY CONSTRUING THE STATUTE AS IMPOSING A
GUARANTEE OF APPEAL COSTS ON ALL LAWYERS EMPLOYED TO REPRESENT THE POOR
ON A CONTINGENT BASIS.  FOR IF A PERSON IS TOO POOR TO PAY THE COSTS OF
A SUIT, SOMETIMES VERY SMALL IN AMOUNT, HOW CAN IT BE IMAGINED THAT HE
COULD POSSIBLY PAY A FAIR FEE EXCEPT FROM THE RECOVERY HE OBTAINS? 
FN10 

THE STATUTE HERE UNDER CONSIDERATION IS NOT SUSCEPTIBLE OF A
CONSTRUCTION THAT WOULD IMPOSE MORE BURDENS ON LAWYERS EMPLOYED BY
LITIGANTS UNABLE TO PAY FEES EXCEPT ON A CONTINGENT BASIS, THAN THE
BURDENS IMPOSED ON LAWYERS FOR THOSE LITIGANTS WHO ARE ABLE TO EMPLOY
COUNSEL BY THE YEAR OR BY PAYMENT OF STRAIGHT NONCONTINGENT FEES. 
AFFIDAVITS OF POVERTY SHALL BE ENTITLED TO THE SAME COURT PROCESSES,
HAVE THE SAME RIGHT TO THE ATTENDANCE OF WITNESSES, AND THE SAME
REMEDIES AS ARE PROVIDED BY LAW IN OTHER CASES.  AND AS POINTED OUT,
SEC. 4 OF THE STATUTE MAKES IT ABUNDANTLY CLEAR THAT POOR LITIGANTS
SHALL HAVE THE SAME OPPORTUNITY TO BE REPRESENTED BY COUNSEL AS
LITIGANTS IN MORE FORTUNATE FINANCIAL CIRCUMSTANCES.  THE STATUTORY
CONSTRUCTION URGED BY RESPONDENT HERE WOULD RESULT IN RESTRICTING THE
OPPORTUNITIES OF THE POOR LITIGANT IN GETTING A LAWYER WHO WOULD FOLLOW
HIS CASE THROUGH THE APPELLATE COURTS.  FOR AS WAS SAID BY THE COURT OF
APPEALS IN CLARK V. UNITED STATES, 57 F.2D 214, 216:  "  ...  THE SAME
POVERTY THAT COMPELS A LITIGANT TO AVAIL HIMSELF OF THIS BENEFICENT
STATUTE MAKES IT IMPOSSIBLE FOR HIM TO HIRE COUNSEL.  HE CAN PROCURE
COUNSEL ONLY BY AGREEING THAT OUT OF THE PROCEEDS OF HIS CASE, IF THERE
ARE PROCEEDS, COUNSEL SHALL BE COMPENSATED.  ...  IN PRACTICAL EFFECT
HE A POOR LITIGANT) IS DENIED COUNSEL IF HIS COUNSEL MUST EITHER
HIMSELF GUARANTEE THE COSTS OR FILE AN AFFIDAVIT THAT HE ALSO IS
PENNILESS.  THE STATUTE WAS INTENDED FOR THE BENEFIT OF THOSE TOO POOR
TO PAY OR GIVE SECURITY FOR COSTS, AND IT WAS NOT INTENDED THAT THEY
SHOULD BE COMPELLED TO EMPLOY ONLY PAUPERS TO REPRESENT THEM." 

IT WAS ERROR TO DENY PETITIONERHS MOTION FOR APPEAL UNDER THE STATUTE
ON THE GROUND THAT HER LAWYERS HAD NOT MADE SATISFACTORY AFFIDAVITS OF
POVERTY.  THE STATUTE REQUIRES NO AFFIDAVIT AT ALL FROM THEM AS A
CONDITION OF APPEAL. 

WHAT WE HAVE SAID MAKES IT UNNECESSARY FOR US TO PASS ON THE
CONTENTION OF RESPONDENT THAT AN AGREEMENT FOR A CONTINGENT FEE PAYABLE
OUT OF AN EMPLOYEE'S RECOVERY TO PROSECUTE CLAIMS UNDER THE FAIR LABOR
STANDARDS ACT IS INVALID. 

THE ORDERS DENYING APPEAL IN FORMA PAUPERIS ARE VACATED AND THE CAUSE
IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  27 STAT. 252, AS AMENDED, 36 STAT. 866, 42 STAT. 666, 28 U.S.C.
SEC. 832.  THE SUBSTANCE OF SECS. 1 TO 5 OF THE ORIGINAL STATUTE AS
AMENDED HAS NOW BEEN INCORPORATED IN SECS. (A) TO (E) OF 28 U.S.C. SEC.
1915. 

FN2  SECTION 16(B) OF THE FAIR LABOR STANDARDS ACT, 52 STAT. 1069, 29
U.S.C. SEC. 216(B), AUTHORIZED EMPLOYEES' SUITS BY AGENTS.  HERE THE
AGENT WAS ACTING "FOR A CONSIDERATION CONTINGENT UPON RECOVERY."  AN
AMENDMENT OF THIS SECTION, THE PORTAL-TO-PORTAL ACT, 61 STAT. 84, 29
U.S.C. SUPP. I, SECS. 251-252, LIMITED THE CIRCUMSTANCES UNDER WHICH
SUCH REPRESENTATIVE ACTIONS COULD BE MAINTAINED. 

FN3  EXECUTIVE ORDER NO. 9240, 7 FED. REG. 7159(1942), AS AMENDED, 7
FED. REG. 7419(1942). 

FN4  WE DO NOT MEAN TO INDICATE THAT THE ISSUES SOUGHT TO BE RAISED
BY THIS PETITIONER ON HER APPEAL COULD HAVE BEEN PROPERLY PRESENTED TO
THE COURT OF APPEALS WITH NOTHING OTHER THAN THE VERY LIMITED RECORD
THE TRIAL COURT APPARENTLY THOUGHT WOULD BE ADEQUATE.  THE CASE WAS
DISMISSED BECAUSE THE DISTRICT COURT THOUGHT IT HAD BEEN DEPRIVED OF
JURISDICTION BY THE PORTAL-TO-PORTAL ACT, SUPRA.  THIS ACT PURPORTS TO
DEPRIVE FEDERAL COURTS OF JURISDICTION TO ENFORCE PAYMENT OF OVERTIME
WAGES BASED ON ANY ACTIVITY EXCEPT ONE COMPENSABLE BY EITHER "(1) AN
EXPRESS PROVISION OF A WRITTEN OR NONWRITTEN CONTRACT  ...  OR (2) A
CUSTOM OR PRACTICE IN EFFECT, AT THE TIME OF SUCH ACTIVITY," AT THE
PLACE OF EMPLOYMENT, AND NOT INCONSISTENT WITH A WRITTEN OR NONWRITTEN
CONTRACT GOVERNING SUCH EMPLOYMENT.  PETITIONER HAD CONTENDED THAT
EXAMINATION BY THE COURT OF THE ENTIRE RECORD INCLUDING EVIDENCE
ALREADY TAKEN BY A SPECIAL MASTER WOULD SHOW THAT EMPLOYEES' CLAIMS FOR
COMPENSATION WERE SUPPORTED BY EXPRESS CONTRACTS OR BY CUSTOM.  HE
CONTENDED THAT THE PORTAL-TO-PORTAL ACT WAS THEREFORE INAPPLICABLE
UNDER THE FACTS OF THIS CASE AND THAT CONSEQUENTLY THE DISMISSAL UNDER
THAT ACT WAS ERRONEOUS.  PETITIONER'S APPLICATION TO AMEND HER
COMPLAINT TO CONFORM TO THE EVIDENCE WAS DENIED BY THE COURT.  CF. MATY
V. GRASSELLI CHEMICAL CO., 303 U.S. 197, 200-201; HOINESS V. UNITED
STATES, 335 U.S. 297.  IT WOULD APPEAR THAT THE PETITIONER WAS ENTITLED
TO HAVE A RECORD THAT WAS NOT SO LIMITED AS TO DEPRIVE THE COURT OF
APPEALS OF AN OPPORTUNITY TO REVIEW THESE ISSUES SHE RAISED. 

FN5  UNITED STATES EX REL. RANDOLPH V. ROSS, 298 F. 64; BOLT V.
REYNOLDS METAL CO., 42 F.SUPP.  58; ESQUIBEL V. ATCHISON, T. & S.F.R.
CO., 206 F. 863; FEIL V. WABASH R. CO., 119 F. 490; PHILLIPS V.
LOUISVILLE & N.R. CO., 153 F. 795; THE BELLA, 91 F. 540, 543; BOYLE V.
GREAT NORTHERN R. CO., 63 F. 539; SILVAS V. ARIZONA COPPER CO., 213 F.
504, 507-508. 

FN6  RULE 26(1), RULES OF UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT; RULE 18(2), RULES OF UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT; CHETKOVICH V. UNITED STATES, 47 F.2D 894, BUT SEE
DEADRICH V. UNITED STATES, 67 F.2D 318. 

FN7  QUITTNER V. MOTION PICTURE PRODUCERS AND DISTRIBUTORS OF
AMERICA, 70 F.2D 331; UNITED STATES EX REL. PAYNE V. CALL, 287 F. 520;
JACOBS V. NORTH LOUISIANA & GULF R. CO., 69 F.SUPP.  5; CLARK V. UNITED
STATES, 57 F.2D 214; EVANS V. STIVERS LUMBER CO., 2 F.R.D. 548. 

FN8  SEE OKLA. STAT. TIT. 5, SEC. 11(1941).  SEE ALSO WATKINS V.
SEDBERRY, 261 U.S. 571, 576; PECK V. HEURICH, 167 U.S. 624, 630.  BUT
SEE, RADIN, CONTINGENT FEES IN CALIFORNIA, 28 CALIF. L. REV. 587, 589,
598(1940). 

FN9  CLAY COUNTY V. MCGREGOR, 171 IND. 634, 87 N.E. 1; COUNTY OF DANE
V. SMITH, 13 WIS. 585; RYCE V. MITCHELL COUNTY, 65 IOWA 447, 21 N.W.
771; STATE V. HUDSON, 55 R.I. 141, 143, 179 A. 130, 131. 

FN10  SEE RADIN, CONTINGENT FEES IN CALIFORNIA, SUPRA AT P. 589;
UNITED STATES EX REL. PAYNE V. CALL, 287 F. 520, 522; CLARK V. UNITED
STATES, 57 F.2D 214, 216. 
..END :



KORDEL V. UNITED STATES, 335 U.S. 345 


NO. 30.  ARGUED OCTOBER 14, 1948.  - DECIDED NOVEMBER 22, 1948.  - 164
F.2D 913, AFFIRMED. 


1.  IT IS A VIOLATION OF SEC. 301(A) OF THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT, 52 STAT. 1040, 21 U.S.C. SEC. 331(A), TO SHIP IN
INTERSTATE COMMERCE TO THE SAME CONSIGNEE A DRUG AND ALSO FALSE AND
MISLEADING PAMPHLETS DESIGNED FOR USE IN THE ADVERTISEMENT, SALE AND
USE OF THE DRUG AND CONSTITUTING AN ESSENTIAL SUPPLEMENT TO THE LABEL
ON THE DRUG - EVEN THOUGH THE PAMPHLETS ARE SHIPPED SEPARATELY AND AT A
DIFFERENT TIME.  PP. 346-350. 

(A)  THE PHRASE "ACCOMPANYING SUCH ARTICLE" IN SEC. 201(M), DEFINING
"LABELING," IS NOT RESTRICTED TO LABELS THAT ARE ON OR IN THE ARTICLE
OR PACKAGE THAT IS TRANSPORTED.  PP. 347-350. 

(B)  THAT THE PAMPHLETS ARE SHIPPED PRIOR TO OR SUBSEQUENT TO THE
SHIPMENT OF THE DRUG DOES NOT PREVENT THE DRUG FROM BEING "MISBRANDED"
WHEN INTRODUCED INTO COMMERCE WITHIN THE MEANING OF SEC. 301(A) IN
SPITE OF SEC. 301(K), WHICH FORBIDS MISBRANDING OF A DRUG WHILE IT IS
HELD FOR SALE AFTER SHIPMENT IN INTERSTATE COMMERCE.  PP. 350, 351
352. 

2.  THAT SUCH PAMPHLETS BEAR A SALE PRICE AND ARE OFFERED FOR SALE IS
IMMATERIAL, SINCE THE ACT CANNOT BE CIRCUMVENTED BY THE EASY DEVICE OF
A "SALE" OF THE PAMPHLETS WHERE THEY PERFORM THE FUNCTION OF LABELING. 
P. 350. 

3.  THE FACT THAT, IN THE EVOLUTION OF THE ACT, THE BAN ON FALSE
ADVERTISING WAS ELIMINATED AND ITS CONTROL WAS TRANSFERRED TO THE
FEDERAL TRADE COMMISSION DID NOT ELIMINATE FROM THE ACT ADVERTISING
WHICH PERFORMS THE FUNCTION OF LABELING.  P. 351. 

4.  SINCE THE INFORMATIONS CHARGING VIOLATIONS OF SEC. 301(A) DID NOT
ALLEGE THAT THE ACTS COMMITTED WERE DONE "WITH INTENT TO DEFRAUD," THE
MAXIMUM PENALTY WAS IMPRISONMENT FOR NOT MORE THAN A YEAR, OR A FINE OF
NOT MORE THAN $1,000, OR BOTH.  THEREFORE, PROSECUTION BY INFORMATION
WAS AUTHORIZED BY THE STATUTE AND BY SEC. 7(A) OF THE RULES OF CRIMINAL
PROCEDURE.  P. 348, N. 3. 

KORDEL V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT OF VIOLATING
SEC. 301(A) OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, 52 STAT. 1040,
21 U.S.C. SEC. 331(A).  66 F.SUPP.  538.  THE COURT OF APPEALS
AFFIRMED.  164 F.2D 913.  THIS COURT GRANTED CERTIORARI.  333 U.S.
872.  AFFIRMED, P. 352. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
REED. 

THIS CASE AND UNITED STATES V. URBUTEIT, POST, P. 355, DECIDED THIS
DAY, ARE HERE ON CERTIORARI TO RESOLVE A CONFLICT AMONG THE CIRCUITS IN
THE CONSTRUCTION OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT OF JUNE
25, 1938.  52 STAT. 1040, 21 U.S.C. SEC. 301 ET SEQ. 

KORDEL WAS CHARGED BY INFORMATIONS CONTAINING TWENTY COUNTS OF
INTRODUCING OR DELIVERING FOR INTRODUCTION INTO INTERSTATE COMMERCE
MISBRANDED DRUGS.  HE WAS TRIED WITHOUT A JURY, FOUND GUILTY, AND FINED
TWO HUNDRED DOLLARS ON EACH COUNT.  66 F.SUPP.  538.  THIS JUDGMENT WAS
AFFIRMED ON APPEAL.  164 F.2D 913. 

KORDEL WRITES AND LECTURES ON HEALTH FOODS FROM INFORMATION DERIVED
FROM STUDIES IN PUBLIC AND PRIVATE LIBRARIES.  SINCE 1941 HE HAS BEEN
MARKETING HIS OWN HEALTH FOOD PRODUCTS, WHICH APPEAR TO BE COMPOUNDS OF
VARIOUS VITAMINS, MINERALS AND HERBS.  THE ALLEGED MISBRANDING CONSISTS
OF STATEMENTS IN CIRCULARS OR PAMPHLETS DISTRIBUTED TO CONSUMERS BY THE
VENDORS OF THE PRODUCTS, RELATING TO THEIR EFFICACY.  THE PETITIONER
SUPPLIES THESE PAMPHLETS AS WELL AS THE PRODUCTS TO THE VENDORS.  SOME
OF THE LITERATURE WAS DISPLAYED IN STORES IN WHICH THE PETITIONER'S
PRODUCTS WERE ON SALE.  SOME OF IT WAS GIVEN AWAY WITH THE SALE OF
PRODUCTS; SOME SOLD INDEPENDENTLY OF THE DRUGS; AND SOME MAILED TO
CUSTOMERS BY THE VENDORS. 

IT IS UNDISPUTED THAT PETITIONER SHIPPED OR CAUSED TO BE SHIPPED IN
INTERSTATE COMMERCE BOTH THE DRUGS AND THE LITERATURE.  SEVEN OF THE
COUNTS CHARGED THAT THE DRUGS AND LITERATURE WERE SHIPPED IN THE SAME
CARTONS.  THE LITERATURE INVOLVED IN THE OTHER COUNTS WAS SHIPPED
SEPARATELY FROM THE DRUGS AND AT DIFFERENT TIMES - BOTH BEFORE AND
AFTER THE SHIPMENTS OF THE DRUGS WITH WHICH THEY WERE ASSOCIATED.  THE
QUESTION WHETHER THE SEPARATE SHIPMENT OF THE LITERATURE SAVED THE
DRUGS FROM BEING MISBRANDED WITHIN THE MEANING OF THE ACT PRESENTS THE
MAIN ISSUE IN THE CASE. 

COMMERCE OF ANY DRUG THAT IS ADULTERATED OR MISBRANDED.  FN1  IT IS
MISBRANDED ACCORDING TO SEC. 502(A) IF ITS "LABELING IS FALSE OR
MISLEADING IN ANY PARTICULAR" AND UNLESS THE LABELING BEARS "ADEQUATE
DIRECTIONS FOR USE."  SEC. 502(F).  THE TERM LABELING IS DEFINED IN
SEC. 201(M) TO MEAN "ALL LABELS  FN2  AND OTHER WRITTEN, PRINTED, OR
GRAPHIC MATTER (1) UPON ANY ARTICLE OR ANY OF ITS CONTAINERS OR
WRAPPERS, OR (2) ACCOMPANYING SUCH ARTICLE."  SECTION 303 MAKES THE
VIOLATION OF ANY OF THE PROVISIONS OF SEC. 301 A CRIME.  FN3 

IN THIS CASE THE DRUGS AND THE LITERATURE HAD A COMMON ORIGIN AND A
COMMON DESTINATION.  THE LITERATURE WAS USED IN THE SALE OF THE DRUGS. 
IT EXPLAINED THEIR USES.  NOWHERE ELSE WAS THE PURCHASER ADVISED HOW TO
USE THEM.  IT CONSTITUTED AN ESSENTIAL SUPPLEMENT TO THE LABEL ATTACHED
TO THE PACKAGE.  THUS THE PRODUCTS AND THE LITERATURE WERE
INTERDEPENDENT, AS THE COURT OF APPEALS OBSERVED. 

IT WOULD TAKE AN EXTREMELY NARROW READING OF THE ACT TO HOLD THAT
THESE DRUGS WERE NOT MISBRANDED.  A CRIMINAL LAW IS NOT TO BE READ
EXPANSIVELY TO INCLUDE WHAT IS NOT PLAINLY EMBRACED WITHIN THE LANGUAGE
OF THE STATUTE (UNITED STATES V. RESNICK, 299 U.S. 207; KRAUS & BROS.
V. UNITED STATES, 327 U.S. 614, 621-622), SINCE THE PURPOSE FAIRLY TO
APPRISE MEN OF THE BOUNDARIES OF THE PROHIBITED ACTION WOULD THEN BE
DEFEATED.  UNITED STATES V. SULLIVAN, 332 U.S. 689, 693; WINTERS V. NEW
YORK, 333 U.S. 507.  BUT THERE IS NO CANON AGAINST USING COMMON SENSE
IN READING A CRIMINAL LAW, SO THAT STRAINED AND TECHNICAL CONSTRUCTIONS
DO NOT DEFEAT ITS PURPOSE BY CREATING EXCEPTIONS FROM OR LOOPHOLES IN
IT.  SEE ROSCHEN V. WARD, 279 U.S. 337, 339. 

IT WOULD, INDEED, CREATE AN OBVIOUSLY WIDE LOOPHOLE TO HOLD THAT
THESE DRUGS WOULD BE MISBRANDED IF THE LITERATURE HAD BEEN SHIPPED IN
THE SAME CONTAINER BUT NOT MISBRANDED IF THE LITERATURE LEFT IN THE
NEXT OR IN THE PRECEDING MAIL.  THE HIGH PURPOSE OF THE ACT TO PROTECT
CONSUMERS WHO UNDER PRESENT CONDITIONS ARE LARGELY UNABLE TO PROTECT
THEMSELVES IN THIS FIELD  FN4  WOULD THEN BE EASILY DEFEATED.  THE
ADMINISTRATIVE AGENCY CHARGED WITH ITS ENFORCEMENT  FN5  HAS NOT GIVEN
THE ACT ANY SUCH RESTRICTED CONSTRUCTION.  FN6  THE TEXTUAL STRUCTURE
OF THE ACT IS NOT AGREEABLE TO IT.  ACCORDINGLY, WE CONCLUDE THAT THE
PHRASE "ACCOMPANYING SUCH ARTICLE" IS NOT RESTRICTED TO LABELS THAT ARE
ON OR IN THE ARTICLE OR PACKAGE THAT IS TRANSPORTED. 

THE FIRST CLAUSE OF SEC. 201(M) - ALL LABELS "UPON ANY ARTICLE OR ANY
OF ITS CONTAINERS OR WRAPPERS" - CLEARLY EMBRACES ADVERTISING OR
DESCRIPTIVE MATTER THAT GOES WITH THE PACKAGE IN WHICH THE ARTICLES ARE
TRANSPORTED.  THE SECOND CLAUSE - "ACCOMPANYING SUCH ARTICLE" - HAS NO
SPECIFIC REFERENCE TO PACKAGES, CONTAINERS OR THEIR CONTENTS AS DID A
PREDECESSOR STATUTE.  SEE SEVEN CASES V. UNITED STATES, 239 U.S. 510,
513, 515.  IT PLAINLY INCLUDES WHAT IS CONTAINED WITHIN THE PACKAGE
WHETHER OR NOT IT IS "UPON" THE ARTICLE OR ITS WRAPPER OR CONTAINER. 
BUT THE SECOND CLAUSE DOES NOT SAY "ACCOMPANYING SUCH ARTICLE IN THE
PACKAGE OR CONTAINER," AND WE SEE NO REASON FOR READING THE ADDITIONAL
WORDS INTO THE TEXT. 

ONE ARTICLE OR THING IS ACCOMPANIED BY ANOTHER WHEN IT SUPPLEMENTS OR
EXPLAINS IT, IN THE MANNER THAT A COMMITTEE REPORT OF THE CONGRESS
ACCOMPANIES A BILL.  NO PHYSICAL ATTACHMENT ONE TO THE OTHER IS
NECESSARY.  IT IS THE TEXTUAL RELATIONSHIP THAT IS SIGNIFICANT.  THE
ANALOGY TO THE PRESENT CASE IS OBVIOUS.  WE NEED NOT LABOR THE POINT. 

THE FALSE AND MISLEADING LITERATURE IN THE PRESENT CASE WAS DESIGNED
FOR USE IN THE DISTRIBUTION AND SALE OF THE DRUG, AND IT WAS SO USED. 
THE FACT THAT IT WENT IN A DIFFERENT MAIL WAS WHOLLY IRRELEVANT WHETHER
WE JUDGE THE TRANSACTION BY PURPOSE OR RESULT.  AND TO SAY THAT THE
PRIOR OR SUBSEQUENT SHIPMENT OF THE LITERATURE DISPROVES THAT IT "IS"
MISBRANDED WHEN INTRODUCED INTO COMMERCE WITHIN THE MEANING OF SEC.
301(A), IS TO OVERLOOK THE INTEGRATED NATURE OF THE TRANSACTIONS
ESTABLISHED IN THIS CASE. 

MOREOVER, THE FACT THAT SOME OF THE BOOKLETS CARRIED A SELLING PRICE
IS IMMATERIAL ON THE FACTS SHOWN HERE.  AS STATED BY THE COURT OF
APPEALS, THE BOOKLETS AND DRUGS WERE NONETHELESS INTERDEPENDENT; THEY
WERE PARTS OF AN INTEGRATED DISTRIBUTION PROGRAM.  THE ACT CANNOT BE
CIRCUMVENTED BY THE EASY DEVICE OF A "SALE" OF THE ADVERTISING MATTER
WHERE THE ADVERTISING PERFORMS THE FUNCTION OF LABELING. 

PETITIONER POINTS OUT THAT IN THE EVOLUTION OF THE ACT THE BAN ON
FALSE ADVERTISING WAS ELIMINATED, THE CONTROL OVER IT BEING TRANSFERRED
TO THE FEDERAL TRADE COMMISSION.  52 STAT. 114, 15 U.S.C. SEC. 55(A). 
WE HAVE SEARCHED THE LEGISLATIVE HISTORY IN VAIN, HOWEVER, TO FIND ANY
INDICATION THAT CONGRESS HAD THE PURPOSE TO ELIMINATE FROM THE ACT
ADVERTISING WHICH PERFORMS THE FUNCTION OF LABELING.  EVERY LABELING IS
IN A SENSE AN ADVERTISEMENT.  THE ADVERTISING WHICH WE HAVE HERE
PERFORMS THE SAME FUNCTION AS IT WOULD IF IT WERE ON THE ARTICLE OR ON
THE CONTAINERS OR WRAPPERS.  AS WE HAVE SAID, PHYSICAL ATTACHMENT OR
CONTIGUITY IS UNNECESSARY UNDER SEC. 201(M)(2). 

THERE IS A SUGGESTION THAT THE OFFENSE IN THIS CASE FALLS UNDER SEC.
301(K) OF THE ACT WHICH INCLUDES MISBRANDING OF A DRUG WHILE IT IS HELD
FOR SALE AFTER SHIPMENT IN INTERSTATE COMMERCE.  FN7  SINCE THE
INFORMATIONS CONTAIN NO SUCH CHARGE, IT IS THEREFORE CLAIMED THAT THE
JUDGMENT MUST BE REVERSED.  WE DO NOT AGREE.  SECTION 301(K) HAS A
BROAD SWEEP, NOT RESTRICTED TO THOSE WHO INTRODUCE OR DELIVER FOR
INTRODUCTION DRUGS IN INTERSTATE COMMERCE.  FN8  SEE UNITED STATES V.
SULLIVAN, SUPRA.  NOR IS IT CONFINED TO ADULTERATION OR MISBRANDING AS
IS SEC. 301(A).  ID.  IT IS, HOWEVER, RESTRICTED TO CASES WHERE THE
ARTICLE IS HELD FOR SALE AFTER SHIPMENT IN INTERSTATE COMMERCE; AND,
UNLIKE SEC. 301(A), IT DOES NOT REACH SITUATIONS WHERE THE MANUFACTURER
SELLS DIRECTLY TO THE CONSUMER.  CF. UNITED STATES V. URBUTEIT, SUPRA.
HENCE WE CONCLUDE THAT WE DO NOT DISTURB THE STATUTORY SCHEME WHEN WE
REFUSE TO TAKE FROM SEC. 301(A) WHAT IS FAIRLY INCLUDED IN IT IN ORDER
TO LEAVE THE MATTER WHOLLY TO THE SERVICE OF SEC. 301(K).  THE REACH OF
SEC. 301(A) IS IN THIS RESPECT LONGER.  SUCH A TRANSFER TO SEC. 301(K)
WOULD CREATE A NEW HIATUS IN THE ACT AND THUS DISTURB THE PATTERN WHICH
WE DISCERN IN IT. 

WE HAVE CONSIDERED THE OTHER OBJECTIONS TENDERED BY PETITIONER AND
FIND THEM WITHOUT MERIT.  AFFIRMED. 

FN1  SECTION 301 IN RELEVANT PART READS AS FOLLOWS: 

"THE FOLLOWING ACTS AND THE CAUSING THEREOF ARE HEREBY PROHIBITED: 

"(A)  THE INTRODUCTION OR DELIVERY FOR INTRODUCTION INTO INTERSTATE
COMMERCE OF ANY FOOD, DRUG, DEVICE, OR COSMETIC THAT IS ADULTERATED OR
MISBRANDED. 

"(B)  THE ADULTERATION OR MISBRANDING OF ANY FOOD, DRUG, DEVICE, OR
COSMETIC IN INTERSTATE COMMERCE. 

"(C)  THE RECEIPT IN INTERSTATE COMMERCE OF ANY FOOD, DRUG, DEVICE,
OR COSMETIC THAT IS ADULTERATED OR MISBRANDED, AND THE DELIVERY OR
PROFFERED DELIVERY THEREOF FOR PAY OR OTHERWISE. 

     .         .         .     .         . 

"(K)  THE ALTERATION, MUTILATION, DESTRUCTION, OBLITERATION, OR
REMOVAL OF THE WHOLE OR ANY PART OF THE LABELING OF, OR THE DOING OF
ANY OTHER ACT WITH RESPECT TO, A FOOD, DRUG, DEVICE, OR COSMETIC, IF
SUCH ACT IS DONE WHILE SUCH ARTICLE IS HELD FOR SALE AFTER SHIPMENT IN
INTERSTATE COMMERCE AND RESULTS IN SUCH ARTICLE BEING MISBRANDED." 

FN2  THE TERM LABEL IS DEFINED AS "A DISPLAY OF WRITTEN, PRINTED, OR
GRAPHIC MATTER UPON THE IMMEDIATE CONTAINER OF ANY ARTICLE."  SEC.
201(K). 

FN3  "SEC.  303.  (A)  ANY PERSON WHO VIOLATES ANY OF THE PROVISIONS
OF SECTION 301 SHALL BE GUILTY OF A MISDEMEANOR AND SHALL ON CONVICTION
THEREOF BE SUBJECT TO IMPRISONMENT FOR NOT MORE THAN ONE YEAR, OR A
FINE OF NOT MORE THAN $1,000, OR BOTH SUCH IMPRISONMENT AND FINE; BUT
IF THE VIOLATION IS COMMITTED AFTER A CONVICTION OF SUCH PERSON UNDER
THIS SECTION HAS BECOME FINAL SUCH PERSON SHALL BE SUBJECT TO
IMPRISONMENT FOR NOT MORE THAN THREE YEARS, OR A FINE OF NOT MORE THAN
$10,000, OR BOTH SUCH IMPRISONMENT AND FINE. 

"(B)  NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) OF THIS
301, WITH INTENT TO DEFRAUD OR MISLEAD, THE PENALTY SHALL BE
IMPRISONMENT FOR NOT MORE THAN THREE YEARS, OR A FINE OF NOT MORE THAN
$10,000, OR BOTH SUCH IMPRISONMENT AND FINE." 

THE INFORMATIONS, IN CHARGING VIOLATIONS OF SEC. 301(A), DID NOT
ALLEGE THAT THE ACTS COMMITTED WERE DONE "WITH INTENT TO DEFRAUD." 
HENCE THE MAXIMUM PENALTY WAS IMPRISONMENT FOR NOT MORE THAN A YEAR, OR
A FINE OF NOT MORE THAN $1,000, OR BOTH.  PROSECUTION BY INFORMATION
WAS THEREFORE AUTHORIZED BY THE STATUTE (SEE DUKE V. UNITED STATES, 301
U.S. 492) AND BY RULE 7(A) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 

FN4  SEE UNITED STATES V. DOTTERWEICH, 320 U.S. 277, 280; UNITED
STATES V. SULLIVAN, SUPRA, P. 696. 

FN5  SEE SEC. 701 AND SEC. 201(C); 1940 REORG. PLAN NO. IV, SEC. 12,
54 STAT.  231, 5 U.S.C. SEC. 133(U). 

FN6  THE FEDERAL SECURITY AGENCY BY REGULATION (21 C.F.R. CUM. SUPP.
SEC. 2.2) HAS RULED: 

"LABELING INCLUDES ALL WRITTEN, PRINTED, OR GRAPHIC MATTER
ACCOMPANYING AN ARTICLE AT ANY TIME WHILE SUCH ARTICLE IS IN INTERSTATE
COMMERCE OR HELD FOR SALE AFTER SHIPMENT OR DELIVERY IN INTERSTATE
COMMERCE." 

FN7  SEE NOTE 1, SUPRA. 

FN8 THE PURPOSE OF SEC. 301(K) WAS DESCRIBED IN H.R. REP. NO. 2139,
75TH CONG., 3D SESS. 3(1938), AS FOLLOWS: 

"IN ORDER TO EXTEND THE PROTECTION OF CONSUMERS CONTEMPLATED BY THE
LAW TO THE FULL EXTENT CONSTITUTIONALLY POSSIBLE, PARAGRAPH (K) HAS
BEEN INSERTED PROHIBITING THE CHANGING OF LABELS SO AS TO MISBRAND
ARTICLES HELD FOR SALE AFTER INTERSTATE SHIPMENT." 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
MURPHY AND MR. JUSTICE JACKSON CONCUR, DISSENTING. 

I AGREE WITH THE COURT'S INTERPRETATION OF SEC. 502(A) AND SEC.
201(M) OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT.  THESE SECTIONS
CONSIDERED TOGETHER PROVIDE A DEFINITION FOR THE "MISBRANDING" OF
DRUGS.  I AGREE THAT A DRUG IS MISBRANDED WITHIN THE MEANING OF THE
STATUTE IS FALSE AND MISLEADING WRITTEN, PRINTED, OR GRAPHIC MATTER IS
EITHER PLACED UPON THE DRUG, ITS CONTAINER OR WRAPPERS, OR USED IN THE
SALE OF THE DRUG AS A SUPPLEMENT TO THE PACKAGE LABEL TO ADVISE
CONSUMERS HOW TO USE THE DRUG.  I AGREE THAT FALSE LABELS MAY, WITHIN
THE MEANING OF THE STATUTE, "ACCOMPANY," THAT IS GO ALONG WITH, A DRUG
ON ITS INTERSTATE JOURNEY EVEN THOUGH NOT IN THE SAME CARTON, ON THE
SAME TRAIN, IN THE SAME MAIL, OR DELIVERED FOR SHIPMENT THE SAME DAY. 
BUT THESE AGREEMENTS DO NOT SETTLE ALL THE PROBLEMS IN THIS CASE. 
THE FEDERAL FOOD, DRUG, AND COSMETIC ACT DOES NOT PURPORT TO MAKE ALL
MISBRANDING OF DRUGS WITHIN THE FOREGOING DEFINITION A FEDERAL
OFFENSE.  CONGRESSIONAL POWER TO PASS THE ACT IS BASED UPON THE
COMMERCE CLAUSE.  CONSEQUENTLY MISBRANDING IS ONLY AN OFFENSE IF THE
MISBRANDED DRUGS BEAR THE STATUTORILY DEFINED RELATIONSHIPS TO
INTERSTATE COMMERCE.  FOR ILLUSTRATION, IF A PERSON MISBRANDED A DRUG
WHICH HAD NOT BEEN AND WAS NOT THEREAFTER INTRODUCED INTO INTERSTATE
COMMERCE, THERE WOULD BE NO VIOLATION OF THE FEDERAL ACT, WHATEVER
VIOLATION THERE MIGHT BE OF STATE LAW. 

AS WE POINTED OUT IN UNITED STATES V. SULLIVAN, 332 U.S. 689, THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT CREATES SEVERAL OFFENSES EACH OF
WHICH SEPARATELY DEPENDS UPON THE RELATIONSHIP THE MISBRANDED DRUG THEN
BEARS TO INTERSTATE COMMERCE.  SECTION 301(A) FORBIDS THE "INTRODUCTION
OR DELIVERY FOR INTRODUCTION INTO INTERSTATE COMMERCE" OF MISBRANDED
DRUGS; SEC. 301(B) FORBIDS MISBRANDING WHILE THE DRUGS ARE "IN
INTERSTATE COMMERCE"; SEC. 301(C) PROHIBITS THE "RECEIPT" OF SUCH DRUGS
IN INTERSTATE COMMERCE; AND SEC. 301(K) FORBIDS MISBRANDING WHILE DRUGS
ARE "HELD FOR SALE AFTER SHIPMENT IN INTERSTATE COMMERCE." 

THE TWENTY COUNTS OF THE INFORMATION UPON WHICH THIS PETITIONER'S
CONVICTION RESTS, CHARGE THAT HE HAD INTRODUCED DRUGS INTO INTERSTATE
COMMERCE, AND THAT "WHEN" HE SO INTRODUCED THE DRUGS, THEY WERE
"MISBRANDED  ...  IN THAT  ...  STATEMENTS APPEARING IN  ...  BULLETINS
AND BOOKLETS ACCOMPANYING" THE DRUGS "WERE FALSE AND MISLEADING."  THE
UNDISPUTED EVIDENCE AS TO THIRTEEN OF THESE COUNTS SHOWED THAT WHEN THE
DRUGS WERE "INTRODUCED" INTO INTERSTATE COMMERCE FOR SHIPMENT, THEY
WERE NOT WITHIN ANY FAIR MEANING OF THE WORD "ACCOMPANIED" BY THE
PRINTED MATTER RELIED ON AS "LABELING."  THE EVIDENCE UNDER ONE COUNT
WAS THAT THE DRUGS WERE SHIPPED JULY 10, 1942, WHILE THE BOOKLETS SAID
TO BE "LABELS" WERE SENT A YEAR AND A HALF LATER, JANUARY 18, 1944. 
THUS, EACH OF THESE COUNTS CHARGED A VIOLATION OF THE SEPARATE AND
DISTINCT OFFENSE OF INTRODUCING MISBRANDED DRUGS INTO INTERSTATE
COMMERCE, PROHIBITED BY SEC. 301(A).  THE EVIDENCE PROVES THE OFFENSE,
IF ANY, OF VIOLATION OF SEC. 301(K), WHICH PROHIBITS THE MISBRANDING OF
DRUGS WHILE HELD FOR SALE AFTER AN INTERSTATE SHIPMENT. 

THE COURT'S INTERPRETATION OF SEC. 301(A) SEEMS TO ME TO CREATE A NEW
OFFENSE TO MAKE IT A CRIME TO INTRODUCE DRUGS INTO INTERSTATE COMMERCE
IF THEY SHOULD SUBSEQUENTLY BE MISBRANDED, EVEN SO LONG AS EIGHTEEN
MONTHS LATER WHILE HELD FOR SALE.  THIS JUDICIAL ACTION IS JUSTIFIED IN
PART ON THE GROUND THAT THE OFFENSE CONGRESS CREATED IN SEC. 301(K) FOR
HOLDING MISBRANDED DRUGS FOR SALE AFTER INTERSTATE SHIPMENT MIGHT NOT
REACH ALL SITUATIONS COVERED BY THE CONGRESSIONALLY CREATED OFFENSE
DEFINED BY SEC. 301(A).  IF AS THE COURT BELIEVES, CONGRESS IN SEC.
301(K) HAS LIMITED THE SITUATIONS FOR WHICH IT WILL DIRECT PUNISHMENT
FOR HOLDING MISBRANDED ARTICLES FOR SALE, I CANNOT AGREE THAT WE SHOULD
REWRITE SEC. 301(A) SO AS TO BROADEN ITS COVERAGE.  IF CONGRESS LEFT A
HIATUS, CONGRESS SHOULD FILL IT IF IT SO DESIRES.  WHILE I DO NOT DOUBT
THE WISDOM OF SEPARATING THESE OFFENSES AS CONGRESS HAS HERE DONE, WE
MUST REMEMBER THAT THERE ARE DANGERS IN SPLITTING UP ONE AND THE SAME
TRANSACTION INTO MANY OFFENSES.  SEE BLOCKBURGER V. UNITED STATES, 284
U.S. 299, 304-305. 

THESE ARE SERIOUS OFFENSES.  WHILE PETITIONER WAS FINED ONLY $200 ON
EACH COUNT, OR A TOTAL OF $4,000, THE MAXIMUM ALLOWABLE PUNISHMENT WAS
$1,000 PER COUNT AND IMPRISONMENT FOR ONE YEAR, OR FOR THREE YEARS
UNDER OTHER CIRCUMSTANCES.  SEC. 303(A).  THE APPROACH OF CONGRESS IN
THIS FIELD OF PENAL REGULATION HAS BEEN CAUTIOUS.  THE LANGUAGE USED BY
CONGRESS IN THE PRESENT LAW IN DEFINING NEW OFFENSES HAS BEEN MARKED BY
PRECISION.  I THINK WE SHOULD EXERCISE A SIMILAR CAUTION BEFORE READING
INTO THE "INTRODUCTION INTO INTERSTATE COMMERCE" OFFENSE, CONDUCT WHICH
PATENTLY FITS INTO THE "HELD FOR SALE" OFFENSE. 

I WOULD REVERSE THE JUDGMENT HERE INSOFAR AS IT RESTS ON THE THIRTEEN
COUNTS IN WHICH THE GOVERNMENT CHARGED OFFENSES UNDER SEC. 301(A) AND
FAILED TO PROVE THEM. 
..END :








UNITED STATES V. URBUTEIT, 335 U.S. 355 


NO. 13.  ARGUED OCTOBER 13-14, 1948.  - DECIDED NOVEMBER 22, 1948.  -
164 F.2D 245, REVERSED. 


CERTAIN MACHINES BEARING NO LABELING OTHER THAN NAME AND SERIAL NUMBER
WERE SHIPPED IN INTERSTATE COMMERCE.  SUBSEQUENTLY, BUT AS A PART OF
THE SAME TRANSACTION, THERE WERE SHIPPED TO THE SAME CONSIGNEE CERTAIN
LEAFLETS CONTAINING ALLEGEDLY FALSE AND MISLEADING STATEMENTS RELATIVE
TO THE VALUE OF THE MACHINES IN THE DIAGNOSIS, PREVENTION, TREATMENT
AND CURE OF DISEASE.  THESE LEAFLETS WERE USED BY THE CONSIGNEE IN
EXPLAINING THE USE OF THE MACHINES TO HIS PATIENTS AND IN SELLING SOME
OF THEM TO PATIENTS.  HELD:  THE SEPARATE SHIPMENT OF THE MACHINES AND
LEAFLETS DID NOT PREVENT THE MACHINES FROM BEING SUBJECT TO
CONDEMNATION UNDER SEC. 304(A) OF THE FEDERAL FOOD, DRUG, AND COSMETIC
ACT, 52 STAT. 1044, 21 U.S.C. SEC. 334, AS DEVICES "MISBRANDED WHEN
INTRODUCED INTO" INTERSTATE COMMERCE.  KORDEL V. UNITED STATES, ANTE,
P. 345.  PP. 355-358. 

UNITED STATES V. URBUTEIT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

A FEDERAL DISTRICT COURT ORDERED CERTAIN MACHINES CONDEMNED UNDER
SEC. 304(A) OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, 52 STAT. 1044,
21 U.S.C. SEC. 334.  THE COURT OF APPEALS REVERSED.  164 F.2D 245. 
THIS COURT GRANTED CERTIORARI.  333 U.S. 872.  REVERSED, P. 358. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
REED. 

THE UNITED STATES FILED A LIBEL UNDER THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT (52 STAT. 1044, 21 U.S.C. SEC. 334), SEEKING SEIZURE OF 16
MACHINES LABELED "SINUOTHERMIC."  THE LIBEL ALLEGED THAT THE DEVICE WAS
MISBRANDED WITHIN THE MEANING OF THE ACT (52 STAT. 1050, 21 U.S.C. SEC.
352(A)) IN THAT REPRESENTATIONS IN A LEAFLET ENTITLED "THE ROAD TO
HEALTH" RELATIVE TO THE CURATIVE AND THERAPEUTIC POWERS OF THE DEVICE
IN THE DIAGNOSIS, CURE, MITIGATION, TREATMENT AND PREVENTION OF DISEASE
WERE FALSE AND MISLEADING.  IT CHARGED THAT THE LEAFLET HAD ACCOMPANIED
THE DEVICE IN INTERSTATE COMMERCE. 

RESPONDENT, FRED URBUTEIT, APPEARED AS CLAIMANT OF SEVERAL OF THE
DEVICES.  HE ADMITTED THAT THE DEVICES AND LEAFLETS HAD BEEN SHIPPED IN
INTERSTATE COMMERCE, BUT DENIED THAT THEY WERE SHIPPED TOGETHER OR THAT
THEY WERE RELATED TO EACH OTHER.  HE ALSO DENIED THAT THE STATEMENTS
MADE IN THE LEAFLET WERE FALSE OR MISLEADING.  THE CASE WAS TRIED
WITHOUT A JURY AND THE ARTICLES WERE ORDERED CONDEMNED.  THE JUDGMENT
WAS REVERSED BY THE COURT OF APPEALS.  164 F.2D 245.  THE CASE IS HERE
ON CERTIORARI TO RESOLVE THE CONFLICT BETWEEN IT AND KORDEL V. UNITED
STATES, ANTE, P. 345. 

RESPONDENT URBUTEIT TERMS HIMSELF A NATUROPATHIC PHYSICIAN AND
CONDUCTS THE SINUOTHERMIC INSTITUTE IN TAMPA, FLORIDA.  THE MACHINES
AGAINST WHICH THE LIBEL WAS FILED ARE ELECTRICAL DEVICES ALLEGEDLY
AIDING IN THE DIAGNOSIS AND CURE OF VARIOUS DISEASES AND PHYSICAL
DISORDERS SUCH AS CANCER, DIABETES, TUBERCULOSIS, ARTHRITIS, AND
PARALYSIS.  THE ALLEGED CURES EFFECTED THROUGH ITS USE ARE DESCRIBED IN
THE ALLEGEDLY FALSE AND MISLEADING LEAFLET, "THE ROAD TO HEALTH,"
PUBLISHED BY URBUTEIT AND DISTRIBUTED FOR USE WITH THE MACHINES. 

URBUTEIT SHIPPED FROM FLORIDA A NUMBER OF THESE MACHINES TO ONE
KELSCH, A FORMER PUPIL OF HIS WHO LIVES IN OHIO.  KELSCH USED THESE
MACHINES IN TREATING HIS PATIENTS AND, THOUGH HE DID NOT RECEIVE THEM
AS A MERCHANT, HE SOLD SOME TO PATIENTS.  AS PART OF THIS TRANSACTION
URBUTEIT CONTRACTED TO FURNISH KELSCH WITH A SUPPLY OF LEAFLETS, WHICH
WERE SENT FROM FLORIDA TO OHIO AT A DIFFERENT TIME THAN WHEN THE
MACHINES WERE FORWARDED.  KELSCH USED THE LEAFLETS TO EXPLAIN THE
MACHINES TO HIS PATIENTS. 

THE LEAFLETS SEEM TO HAVE FOLLOWED THE SHIPMENT OF THE MACHINES.  BUT
AS KORDEL V. UNITED STATES HOLDS, THAT IS IMMATERIAL WHERE THE
ADVERTISING MATTER THAT WAS SENT WAS DESIGNED TO SERVE AND DID IN FACT
SERVE THE PURPOSES OF LABELING.  THIS MACHINE BORE ONLY THE WORDS, U.S.
PATENT SINUOTHERMIC TRADE MARK.  IT WAS THE LEAFLETS THAT EXPLAINED THE
USEFULNESS OF THE DEVICE IN THE DIAGNOSIS, TREATMENT, AND CURE OF
VARIOUS DISEASES.  MEASURED BY FUNCTIONAL STANDARDS, AS SEC. 201(M)(2)
OF THE ACT PERMITS, THESE LEAFLETS CONSTITUTED ONE OF THE TYPES OF
LABELING WHICH THE ACT CONDEMNS. 

THE POWER TO CONDEMN IS CONTAINED IN SEC. 304(A) AND IS CONFINED TO
ARTICLES "ADULTERATED OR MISBRANDED WHEN INTRODUCED INTO OR WHILE IN
INTERSTATE COMMERCE."  FN1  WE DO NOT, HOWEVER, READ THAT PROVISION AS
REQUIRING THE ADVERTISING MATTER TO TRAVEL WITH THE MACHINE.  THE
REASONS OF POLICY WHICH ARGUE AGAINST THAT IN THE CASE OF CRIMINAL
PROSECUTIONS UNDER SEC. 303 ARE EQUALLY FORCIBLE WHEN WE COME TO LIBELS
UNDER SEC. 304(A).  MOREOVER, THE COMMON SENSE OF THE MATTER IS TO VIEW
THE INTERSTATE TRANSACTION IN ITS ENTIRETY - THE PURPOSE OF THE
ADVERTISING AND ITS ACTUAL USE.  IN THIS CASE IT IS PLAIN TO US THAT
THE MOVEMENTS OF MACHINES AND LEAFLETS IN INTERSTATE COMMERCE WERE A
SINGLE INTERRELATED ACTIVITY, NOT SEPARATE OR ISOLATED ONES.  THE ACT
IS NOT CONCERNED WITH THE PURIFICATION OF THE STREAM OF COMMERCE IN THE
ABSTRACT.  THE PROBLEM IS A PRACTICAL ONE OF CONSUMER PROTECTION, NOT
DIALECTICS.  THE FACT THAT THE FALSE LITERATURE LEAVES IN A SEPARATE
MAIL DOES NOT SAVE THE ARTICLE FROM BEING MISBRANDED.  WHERE BY
FUNCTIONAL STANDARDS THE TWO TRANSACTIONS ARE INTEGRATED, THE
REQUIREMENTS OF SEC. 304(A) ARE SATISFIED, THOUGH THE MAILINGS OR
SHIPMENTS ARE AT DIFFERENT TIMES. 

THE COURT OF APPEALS HELD THAT CERTAIN EVIDENCE TENDERED BY URBUTEIT
AS TO THE THERAPEUTIC OR CURATIVE VALUE OF THE MACHINES HAD BEEN
ERRONEOUSLY EXCLUDED AT THE TRIAL, A RULING THAT WE ARE NOT INCLINED TO
DISTURB.  PETITIONER CLAIMS, HOWEVER, THAT THE ERROR WAS NOT
PREJUDICIAL.  THE ARGUMENT IS THAT SINCE THE EVIDENCE OF THE FALSE AND
MISLEADING CHARACTER OF THE ADVERTISING AS RESPECTS THE DIAGNOSTIC
CAPABILITIES OF THE MACHINES WAS OVERWHELMING, THAT FALSE
REPRESENTATION WAS ADEQUATE TO SUSTAIN THE CONDEMNATION, THOUGH IT BE
ASSUMED THAT THE THERAPEUTIC PHASE OF THE CASE WAS NOT ESTABLISHED.  WE
DO NOT REACH THAT QUESTION.  SINCE THE CASE MUST BE REMANDED TO THE
COURT OF APPEALS, THAT QUESTION AND ANY OTHERS THAT HAVE SURVIVED WILL
BE OPEN FOR CONSIDERATION BY IT.  REVERSED. 

FN1  THE RELEVANT PORTION OF THIS SECTION READS AS FOLLOWS: 

"ANY ARTICLE OF FOOD, DRUG, DEVICE, OR COSMETIC THAT IS ADULTERATED
OR MISBRANDED WHEN INTRODUCED INTO OR WHILE IN INTERSTATE COMMERCE  ...
SHALL BE LIABLE TO BE PROCEEDED AGAINST WHILE IN INTERSTATE COMMERCE,
OR AT ANY TIME THEREAFTER, ON LIBEL OF INFORMATION AND CONDEMNED IN ANY
DISTRICT COURT OF THE UNITED STATES WITHIN THE JURISDICTION OF WHICH
THE ARTICLE IS FOUND ...  " 

MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE MURPHY, AND
MR. JUSTICE JACKSON DISSENT FOR THE REASONS STATED IN THEIR DISSENT IN
KORDEL V. UNITED STATES, ANTE, P. 345, DECIDED THIS DAY, ALTHOUGH THIS
CASE ARISES UNDER THE LIMITATION OF SEC. 304(A), "WHILE IN INTERSTATE
COMMERCE," WHICH HAS A DIFFERENT SCOPE FROM SEC. 301(K), WHILE "HELD
FOR SALE AFTER SHIPMENT IN INTERSTATE COMMERCE." 
..END :












GRAND RIVER DAM V. GRAND-HYDRO, 335 U.S. 359 


NO. 6.  ARGUED OCTOBER 12-13, 1948.  - DECIDED NOVEMBER 22, 1948.  - 200
OKLA. 157, 201 P.2D 225, AFFIRMED. 


1.  PETITIONER IS A PUBLIC CORPORATION CREATED BY OKLAHOMA TO DEVELOP
AND SELL HYDROELECTRIC POWER.  RESPONDENT IS AN OKLAHOMA PRIVATE
CORPORATION WITH THE USUAL POWERS OF A PUBLIC UTILITY.  IN A
CONDEMNATION PROCEEDING IN AN OKLAHOMA STATE COURT, PETITIONER SOUGHT A
DETERMINATION OF THE AMOUNT OF COMPENSATION TO WHICH RESPONDENT WAS
ENTITLED FOR LAND OF RESPONDENT WHICH WAS APPROPRIATED BY PETITIONER
FOR A HYDROELECTRIC PROJECT ON THE GRAND RIVER IN OKLAHOMA.  PETITIONER
HAD A FEDERAL LICENSE, ISSUED UNDER THE FEDERAL POWER ACT, FOR THE
PROJECT; RESPONDENT DID NOT.  IN THE CONDEMNATION PROCEEDING,
PETITIONER DID NOT RELY ON THE FEDERAL POWER ACT OR ON THE FEDERAL
LICENSE, BUT ONLY ON THE STATE LAW OF CONDEMNATION.  THE STATE SUPREME
COURT DECIDED THAT, IN DETERMINING THE AMOUNT OF COMPENSATION TO WHICH
THE RESPONDENT WAS ENTITLED, THE VALUE OF THE LAND FOR USE AS A POWER
SITE COULD BE TAKEN INTO CONSIDERATION, AND THAT EXPERT TESTIMONY AS TO
THAT VALUE WAS ADMISSIBLE.  HELD:  THE FEDERAL POWER ACT HAS NOT SO FAR
AFFECTED THE USE OR VALUE OF THE LAND FOR POWER SITE PURPOSES AS TO
DEPRIVE IT OF ALL FAIR MARKET VALUE FOR THOSE PURPOSES AND THUS DEPRIVE
THE EVIDENCE OF SUCH VALUE OF ALL PROBATIVE WEIGHT IN THIS CASE.  PP.
361-369, 372-373. 

2.  THE FACT THAT THE STATE COURT PURPORTED TO REST ITS DECISION
LARGELY ON STATE LAW DOES NOT DISPENSE WITH THE NECESSITY OF THIS
COURT'S CONSIDERING THE QUESTION AS TO THE EFFECT OF THE FEDERAL POWER
ACT PRESENTED BY THIS RECORD.  P. 369. 

3. IT IS FOR THIS COURT TO DETERMINE WHETHER QUESTIONS OF FEDERAL LAW
WERE NECESSARILY, ALTHOUGH ONLY IMPLIEDLY, ADJUDICATED BY THE STATE
COURT.  PP. 369-370. 

4.  THE STATE SUPREME COURT'S STATEMENT OF THE OKLAHOMA LAW AS TO THE
PROPER MEASURE OF THE VALUE OF THE LAND IN THE STATE COURT CONDEMNATION
PROCEEDING IS ACCEPTED HERE.  PP. 370-372. 

5.  THE COURT EXPRESSES NO OPINION AS TO WHAT WOULD BE THE
APPROPRIATE MEASURE OF VALUE IN A CONDEMNATION PROCEEDING BROUGHT BY
THE UNITED STATES OR BY ONE OF ITS LICENSEES IN RELIANCE UPON RIGHTS
DERIVED UNDER THE FEDERAL POWER ACT.  P. 373. 

6.  A DIFFERENT RESULT FROM THAT HERE REACHED IS NOT REQUIRED BY
PROVISIONS OF THE FEDERAL POWER ACT RELATING TO THE DETERMINATION OF
THE RATE BASE OF A FEDERAL LICENSEE, NOR BY PROVISIONS OF THE ACT
RELATING TO RECAPTURE OF A PROJECT BY THE UNITED STATES UPON EXPIRATION
OF A FEDERAL LICENSE.  PP. 374-375. 

7.  THERE IS NOTHING IN THE FEDERAL POWER ACT WHICH REQUIRES THAT IT
BE INTERPRETED AS SUPERSEDING THE STATE LAW OF CONDEMNATION AND AS
RESTRICTING THE MEASURE OF VALUATION WHICH LAWFULLY MAY BE USED BY THE
COURTS OF OKLAHOMA IN A CONDEMNATION PROCEEDING FOR THE ACQUISITION OF
LAND FOR POWER SITE PURPOSES BY AN AGENCY OF THAT STATE.  P. 374. 

8. NO OPINION IS EXPRESSED UPON ISSUES WHICH MIGHT ARISE IN THE EVENT
THE FEDERAL POWER COMMISSION PASSES UPON A RATE BASE FOR THE PROJECT OR
THE UNITED STATES PROCEEDS TO RECAPTURE THE PROJECT UPON EXPIRATION OF
THE FEDERAL LICENSE.  PP. 374-375. 

GRAND RIVER DAM AUTHORITY V. GRAND-HYDRO. 

CERTIORARI TO THE SUPREME COURT OF OKLAHOMA.  200 OKLA. 157, 201 P.2D
225, AFFIRMED. 

A CONDEMNATION PROCEEDING INSTITUTED BY PETITIONER IN A STATE COURT
OF OKLAHOMA, TO HAVE DETERMINED THE AMOUNT OF COMPENSATION TO WHICH THE
RESPONDENT WAS ENTITLED FOR LAND APPROPRIATED BY PETITIONER FOR A
HYDROELECTRIC PROJECT, RESULTED IN A VERDICT AND JUDGMENT FOR A
SPECIFIED SUM.  THE STATE SUPREME COURT REVERSED AND REMANDED FOR A NEW
TRIAL.  192 OKLA. 693, 139 P.2D 798.  THE NEW TRIAL RESULTED IN A
VERDICT AND JUDGMENT FOR AN INCREASED AMOUNT.  THE STATE SUPREME COURT
AFFIRMED. 

A CONDEMNATION PROCEEDING INSTITUTED BY PETITIONER IT, 333 U.S. 852. 
AFFIRMED, P. 375. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL QUESTION IN THIS ACTION FOR CONDEMNATION UNDER OKLAHOMA
LAW IS WHETHER THE FEDERAL POWER ACT  FN1  HAD SO FAR AFFECTED THE USE
OR VALUE OF CERTAIN LAND FOR POWER SITE PURPOSES AS TO RENDER
INADMISSIBLE EXPERT TESTIMONY WHICH GAVE RECOGNITION TO THAT LAND'S
AVAILABILITY FOR A POWER SITE.  WE HOLD THAT IT HAD NOT.  WE THUS SEE
NO ADEQUATE REASON TO REVERSE THE SUPREME COURT OF OKLAHOMA WHICH HAD
HELD THAT SUCH TESTIMONY WAS PROPERLY ADMITTED IN A STATE CONDEMNATION
PROCEEDING. 

THIS ACTION WAS BROUGHT BY THE PETITIONER, GRAND RIVER DAM AUTHORITY,
IN THE DISTRICT COURT FOR MAYES COUNTY, OKLAHOMA, TO CONDEMN AND TO
AWARD DAMAGES FOR THE TAKING OF 1,462.48 ACRES OF THAT LAND FROM THE
RESPONDENT, GRAND-HYDRO.  FOUR HUNDRED AND SEVENTEEN OF THESE ACRES
HAVE BEEN USED BY THE PETITIONER AS A SITE FOR ITS HYDROELECTRIC
PROJECT, NEAR PENSACOLA, ON THE GRAND RIVER IN OKLAHOMA.  THE
COMMISSIONERS, APPOINTED BY THE COURT TO ASSESS THE DAMAGES SUSTAINED
BY THE APPROPRIATION OF THESE LANDS, AWARDED THE RESPONDENT
$281,802.74.  EACH PARTY, HOWEVER, OBJECTED AND DEMANDED A JURY TRIAL. 
THAT TRIAL RESULTED IN A VERDICT AND JUDGMENT FOR $136,250.  ON APPEAL,
THE SUPREME COURT OF OKLAHOMA REVERSED THE JUDGMENT AND REMANDED THE
CASE FOR A NEW TRIAL IN CONFORMITY WITH ITS OPINION.  THAT OPINION IS
IMPORTANT IN DETERMINING THE ISSUES BEFORE US. 192 OKLA. 693, 139 P.2D
798.  SIX JUDGES CONCURRED IN THE OPINION, ONE IN THE RESULT AND TWO
DISSENTED. 

IN 1945, THE NEW TRIAL RESULTED IN A VERDICT AND JUDGMENT FOR
$800,000, TOGETHER WITH INTEREST ON $518,197.26 FROM JANUARY 19, 1940,
WHICH WAS THE DATE ON WHICH THE AMOUNT FIXED BY THE COMMISSIONERS HAD
BEEN PAID INTO COURT.  THE SUPREME COURT OF OKLAHOMA AFFIRMED THIS
JUDGMENT, SEVEN TO TWO.  200 OKLA. 157, 201 P.2D 225.  WE DENIED
CERTIORARI, 332 U.S. 841, BUT, ON REHEARING, GRANTED IT, 333 U.S. 852,
BECAUSE OF THE POSSIBLE SIGNIFICANCE OF THE CASE IN RELATION TO THE
FEDERAL POWER ACT.  THE UNITED STATES FILED A BRIEF AS AMICUS CURIAE,
AT EACH STAGE OF THE PROCEEDINGS, SUPPORTING THE CONTENTIONS OF THE
PETITIONER.  FN2 

THE PETITIONER IS A CONSERVATION AND RECLAMATION DISTRICT, CREATED IN
1935 BY THE OKLAHOMA LEGISLATURE.  IT IS A CORPORATE AGENCY OF THE
STATE WITH POWER TO DEVELOP AND SELL WATER POWER AND ELECTRIC ENERGY IN
THE GRAND RIVER BASIN.  FN3  THE RESPONDENT IS A PRIVATE CORPORATION,
ORGANIZED IN 1929 UNDER THE LAWS OF OKLAHOMA.  IT HAS THE USUAL POWERS
OF A PUBLIC UTILITY, INCLUDING THE POWER TO DEVELOP AND USE THE WATERS
OF THE GRAND RIVER, CONSTRUCT DAMS, GENERATE AND DISTRIBUTE ELECTRICITY
AND ACQUIRE BY RIGHT OF EMINENT DOMAIN, PURCHASE OR OTHERWISE, REAL AND
PERSONAL PROPERTY FOR ITS PURPOSES.  THE GRAND RIVER IS TREATED AS A
NONNAVIGABLE STREAM, TRIBUTARY TO THE ARKANSAS RIVER WHICH IS A
NAVIGABLE STREAM. 

LONG PRIOR TO THIS LITIGATION THE RESPONDENT ACQUIRED THE ACREAGE IN
QUESTION FOR USE IN ITS PROPOSED DEVELOPMENT OF HYDROELECTRIC POWER ON
THE GRAND RIVER.  IN 1931, IT OBTAINED FROM THE STATE CONSERVATION
COMMISSION A STATE LICENSE AND PERMIT TO APPROPRIATE THE WATERS OF
GRAND RIVER FOR BENEFICIAL USE, TO CONSTRUCT A DAM ON THAT RIVER, AND
THERE TO DEVELOP HYDROELECTRIC POWER FOR SALE.  FN4  THE RESPONDENT,
HOWEVER, NEVER HAS FILED WITH THE FEDERAL POWER COMMISSION ANY
DECLARATION OF INTENTION OR APPLICATION FOR A FEDERAL LICENSE RELATIVE
TO THIS PROJECT. 

IN FEBRUARY, 1934, THE CITY OF TULSA FILED AN ACTION IN AN OKLAHOMA
COURT AGAINST THE RESPONDENT AND OTHERS SEEKING AN ADJUDICATION OF
CERTAIN WATER RIGHTS IN SPAVINAW CREEK AND IN THE GRAND RIVER NEAR
PENSACOLA.  DURING THE PENDENCY OF THAT ACTION THE OKLAHOMA LEGISLATURE
CREATED THE GRAND RIVER DAM AUTHORITY, PETITIONER HEREIN, AND GRANTED
TO IT EXCLUSIVE AUTHORITY TO DEVELOP THE GRAND RIVER IN THE MANNER
DESCRIBED IN THE ACT.  IN EFFECT, THE PETITIONER THUS ACQUIRED A STATE
PRIORITY OVER THE RESPONDENT, ALTHOUGH THE RESPONDENT HELD TITLE TO
CERTAIN WATER RIGHTS AND TO THE LAND NEEDED FOR THE PROJECT.  THE
PETITIONER THEREUPON WAS MADE A PARTY TO THE TULSA ACTION.  HOWEVER,
BEFORE FILING ITS ANSWER AND CROSSPETITION, THE PETITIONER ENTERED INTO
AN AGREEMENT FOR THE VOLUNTARY ASSIGNMENT TO IT BY THE RESPONDENT OF
THE LATTER'S RIGHTS TO APPROPRIATE CERTAIN RIVER WATERS FOR THE
PROJECT.  FN5  IT LIKEWISE SECURED FROM THE RESPONDENT THE LATTER'S
TITLE TO 45 ACRES ESSENTIAL TO THE DAM SITE.  IN DUE COURSE, JUDGMENT
WAS RENDERED AWARDING TO THE PETITIONER A PRIOR RIGHT TO CONTROL AND
APPROPRIATE THE REQUIRED WATER FROM THE RIVER AND STATING THAT THE
RESPONDENT HAD NO RIGHT THEREIN.  THE PETITIONER SECURED FROM THE
RESPONDENT A VOLUNTARY CONVEYANCE OF TITLE TO TEN ADDITIONAL ACRES AND
ALSO OF CERTAIN RIGHTS OF ENTRY UPON 362 ACRES.  THESE MADE UP THE 417
ACRES REFERRED TO AS THE DAM SITE.  AS LATER FOUND BY THE SUPREME COURT
OF OKLAHOMA - 

"THE CONVEYANCES OF THE LAND WERE MADE ON CONDITION THAT THE
CONSIDERATION WOULD LATER BE DETERMINED BY AGREEMENT OR CONDEMNATION
AND THE ASSIGNMENT WAS ON THE CONDITION PROVIDED FOR THEREIN: 

"'IT IS UNDERSTOOD, HOWEVER, THAT THIS ASSIGNMENT AND CONVEYANCE
SHALL NOT, IN ANY WAY, AFFECT OR IMPAIR THE TITLE OF GRAND-HYDRO TO ANY
LANDS OWNED BY IT, OR ANY INTERESTS THEREIN, AND IF ANY LANDS OR
INTERESTS THEREIN OWNED BY THE SAID GRAND-HYDRO ARE ACQUIRED BY THE
GRAND RIVER DAM AUTHORITY BY PURCHASE OR CONDEMNATION, THE VALUE
THEREOF OR DAMAGE THERETO SHALL BE ASCERTAINED AND DETERMINED AS THOUGH
THIS ASSIGNMENT AND CONVEYANCE HAD NEVER BEEN MADE.'"  GRAND RIVER DAM
AUTHORITY V. GRAND-HYDRO, 200 OKLA. 157, 158, 201 P.2D 225, 227. 

THE PARTIES BEING UNABLE TO AGREE UPON THE PRICE FOR THE LAND, THE
PETITIONER FILED THE PRESENT ACTION IN FEBRUARY, 1939.  THE PETITION
MADE NO REFERENCE TO THE FEDERAL POWER ACT OR TO RIGHTS CLAIMED
THEREUNDER.  THE PETITIONER, ON THE OTHER HAND, BASED ITS CLAIM UPON
THE RIGHT TO ACQUIRE THE LAND BY CONDEMNATION "IN THE MANNER PROVIDED
BY GENERAL LAW WITH RESPECT TO CONDEMNATION" WHICH HAD BEEN GRANTED TO
THE PETITIONER BY THE GRAND RIVER DAM AUTHORITY ACT.  FN6  THE PROJECT
WAS TO BE LOCATED ON THE UPPER REACHES OF THE GRAND (OR NEOSHO) RIVER,
NEAR PENSACOLA, ABOVE THE RIVER'S CONFLUENCE WITH SPAVINAW CREEK.  IN
THE MEANTIME, ON DECEMBER 15, 1937, THE PETITIONER HAD FILED WITH THE
FEDERAL POWER COMMISSION A DECLARATION OF INTENTION UNDER SEC. 23(B) OF
THE FEDERAL POWER ACT.  FN7  IN THAT DECLARATION THE PETITIONER STATED
THAT - 

"THE CONSTRUCTION OF SAID PROJECT WILL PROBABLY NOT AFFECT PRESENT OR
PROSPECTIVE NAVIGATION FOR THE REASON THAT THE GRAND RIVER IS NOT A
NAVIGABLE STREAM IN LAW OR IN FACT, AND THE NAVIGABILITY OF THE
ARKANSAS AND MISSISSIPPI RIVERS WILL NOT BE APPRECIABLY AFFECTED
THEREBY.  THE CONSTRUCTION OF SAID PROJECT WILL NOT AFFECT ANY PUBLIC
LANDS OR RESERVATIONS OF THE UNITED STATES, OR THE INTERESTS OF
INTERSTATE OR FOREIGN COMMERCE." 

IF THE COMMISSION HAD AGREED WITH THE FOREGOING STATEMENT, SEC. 23(B)
WOULD HAVE PERMITTED CONSTRUCTION OF THE DAM MERELY UPON PETITIONER'S
COMPLIANCE WITH STATE LAWS.  HOWEVER, ON FEBRUARY 11, 1938, THE
COMMISSION FOUND THAT - 

"(C)  THE CONSTRUCTION AND OPERATION OF SAID PROJECT AS PROPOSED BY
THE DECLARANT WILL AFFECT NAVIGABLE STAGES OF THE ARKANSAS RIVER, A
NAVIGABLE WATER OF THE UNITED STATES, TO WHICH SAID GRAND RIVER IS
TRIBUTARY; 

"THE COMMISSION THEREFORE FINDS THAT: 

"THE CONSTRUCTION AND OPERATION OF SAID PROJECT IN THE MANNER
PROPOSED BY THE DECLARANT WILL AFFECT THE INTERESTS OF INTERSTATE
COMMERCE." 

THEREUPON, THE PETITIONER SOUGHT AND, ON JULY 26, 1939, SECURED FROM
THE COMMISSION THE FEDERAL LICENSE REQUIRED FOR THE PROJECT AS ONE
AFFECTING NAVIGABLE WATERS AND RESERVATIONS OF THE UNITED STATES.  THE
PETITIONER, HOWEVER, HAS NOT, BY AMENDMENT OR OTHERWISE, BASED ITS
RIGHT OF CONDEMNATION IN THE PRESENT CASE UPON THE FEDERAL POWER ACT OR
UPON ANY FEDERAL LICENSE ISSUED THEREUNDER. 

THIS PROCEEDING WAS BROUGHT IN AN OKLAHOMA COURT, BY A GOVERNMENT
AGENCY OF OKLAHOMA, TO EXERCISE A RIGHT OF CONDEMNATION GRANTED BY
OKLAHOMA.  IT DOES NOT SEEK TO CONDEMN OR TO AWARD DAMAGES FOR WATER
RIGHTS.  IT SEEKS ONLY TO CONDEMN CERTAIN LAND AND TO ASSESS DAMAGES
DUE TO THE TAKING OF THAT LAND.  AT THE ORIGINAL TRIAL, THE COURT
EXCLUDED FROM THE JURY EVIDENCE OF THE VALUE OF THE LAND INSOFAR AS
SUCH EVIDENCE WAS BASED UPON THE AVAILABILITY OF THAT LAND FOR A DAM
SITE.  ON APPEAL, THE SUPREME COURT OF OKLAHOMA HELD THAT SUCH
EXCLUSION CONSTITUTED REVERSIBLE ERROR AND IT REMANDED THE CASE FOR
RETRIAL IN CONFORMITY WITH ITS OPINION.  THAT OPINION STATED THE LAW OF
OKLAHOMA AS FOLLOWS: 

"THE MEASURE OF COMPENSATION IN SUCH CASE IS THE FAIR MARKET OR CASH
VALUE OF THE LAND CONDEMNED.  CITY OF TULSA V. CREEKMORE, 167 OKLA.
298, 29 P.2D 101.  IN THAT CASE THE COURT, SPEAKING OF THE ELEMENTS TO
BE CONSIDERED IN DETERMINING MARKET VALUES, SAID: 

"'IT IS THE MARKET VALUE THAT IS THE TEST AND NOT ITS VALUE FOR SOME
PARTICULAR USE TO WHICH IT MIGHT BE SUBJECTED, ALTHOUGH ITS
ADAPTABILITY TO THIS PARTICULAR USE MAY BE CONSIDERED AS ONE OF THE
FACTORS IN ASCERTAINING THE MARKET VALUE WHEN THEY ENTER INTO AND
AFFECT THE CASH MARKET VALUE OF THE PROPERTY.  REVELL V. CITY OF
MUSKOGEE, 36 OKLA. 529, 129 P. 833; PUBLIC SERVICE CO. V. LEATHERBEE,
311 ILL. 505, 143 N.E. 97.' 

"AND IN THE SYLLABUS BY THE COURT THE FAIR CASH OR MARKET VALUE OF
LAND TAKEN IN EMINENT DOMAIN IS DEFINED AS FOLLOWS: 

"'BY FAIR MARKET VALUE IS MEANT THE AMOUNT OF MONEY WHICH A PURCHASER
WILLING BUT NOT OBLIGED TO BUY THE PROPERTY WOULD PAY TO AN OWNER
WILLING BUT NOT OBLIGED TO SELL IT, TAKING INTO CONSIDERATION ALL USES
TO WHICH THE LAND WAS ADAPTED AND MIGHT IN REASON BE APPLIED.' 

"WITH REFERENCE TO THE QUESTION OF ADAPTABILITY OR AVAILABILITY FOR A
PARTICULAR USE AS AN ELEMENT IN DETERMINING MARKET VALUE, THE COURT
HELD AS FOLLOWS: 

"'IN DETERMINING THE MARKET VALUE OF A PIECE OF REAL ESTATE FOR THE
PURPOSES OF A TAKING BY EMINENT DOMAIN, IT IS NOT MERELY THE VALUE OF
THE PROPERTY FOR THE USE TO WHICH IT HAS BEEN APPLIED BY THE OWNER THAT
SHOULD BE TAKEN INTO CONSIDERATION, BUT THE POSSIBILITY OF ITS USE FOR
ALL PURPOSES, PRESENT AND PROSPECTIVE, FOR WHICH IT IS ADAPTED AND TO
WHICH IT MIGHT IN REASON BE APPLIED, MUST BE CONSIDERED, AND ITS VALUE
FOR THE USE TO WHICH MEN OF PRUDENCE AND WISDOM AND HAVING ADEQUATE
MEANS WOULD DEVOTE THE PROPERTY IF OWNED BY THEM MUST BE TAKEN AS THE
ULTIMATE TEST.' 

"THE ABOVE CASE CONTAINS A REASONABLY CLEAR STATEMENT OF THE LAW
OBTAINING IN THIS STATE AND WHICH MUST BE APPLIED HERE.  THE CONDEMNEE
IS ORDINARILY ENTITLED TO COMPENSATION MEASURED NOT ONLY BY THE VALUE
OF THE LAND FOR THE USE TO WHICH HE HAS APPLIED IT, BUT THE VALUE
THEREOF FOR ALL POSSIBLE PURPOSES, PRESENT AND PROSPECTIVE, TO WHICH HE
OR HIS ORDINARY GRANTEE MIGHT LEGALLY APPLY THE SAME."  GRAND-HYDRO V.
GRAND RIVER DAM AUTHORITY, 192 OKLA. 693, 694, 139 P.2D 798, 800. 

AFTER RETRIAL AND ON A SECOND APPEAL TO IT, THE SUPREME COURT OF
OKLAHOMA REAFFIRMED THE LAW OF THAT STATE IN THE FOLLOWING TERMS, AND
POINTED TO THE FEDERAL QUESTION WHICH THE PETITIONER AND THE UNITED
STATES, AS AMICUS CURIAE, NOW PLACE BEFORE US: 

"IN THIS APPEAL THE NEW OR DIFFERENT FACTS AND ISSUES PRESENTED
CONSIST OF THE COMPETENCY OF THE TESTIMONY, AS PRESENTED IN THE LAST
TRIAL, OF THE EXPERT WITNESSES AS TO THE MARKET VALUE OF THE DAM SITE;
THE SUBMISSION OF SUCH TESTIMONY TO THE JURY UNDER PROPER INSTRUCTIONS;
THE EFFECT OF GRAND-HYDRO'S LACK OF A PERMIT FROM THE FEDERAL POWER
COMMISSION; THE TRIAL COURT'S REFUSAL TO ALLOW COUNSEL TO ARGUE TO THE
JURY THAT THE CONDEMNED LAND HAD NO DAM SITE VALUE BECAUSE OF SUCH
FACT; AND THE ALLOWANCE OF INTEREST. 

     .         .         .         .         . 

"APPELLANT CONTENDS THAT THE PASSAGE OF THE ACT CREATING THE
AUTHORITY WAS, IN EFFECT, A FORFEITURE OF THE GRAND-HYDRO (STATE)
PERMIT AND THEREFORE IT WAS NOT ENTITLED TO RECOVER THE DAM SITE VALUE
OF THE LANDS CONDEMNED.  IF SUCH WAS THE INTENT OF THE LEGISLATURE IN
PASSING THE ACT, IT WAS IN VIOLATION OF THE CONSTITUTION, ART. 2, SEC.
24.  THE STATE CANNOT, THROUGH ITS LAW-MAKING BODY, REMOVE THE
PRINCIPAL VALUE OF PRIVATE PROPERTY AND, THROUGH ITS ESTABLISHED AGENCY
ACQUIRE THE PROPERTY BY CONDEMNATION, BASING THE REIMBURSEMENT TO THE
OWNER ON THE REDUCED VALUE.  IF IT WERE OTHERWISE, IT WOULD BE POSSIBLE
TO CIRCUMVENT THE ABOVE SECTION OF OUR CONSTITUTION.  ...           .
 .         .         .         . 

"THE TESTIMONY OF THE EXPERT WITNESSES AS INTRODUCED WAS, THEREFORE,
COMPETENT TO PROVE THE DAM SITE VALUE OF THE PROPERTY AND WAS IN ACCORD
WITH OUR OPINION ON THE FORMER APPEAL.  ... 

"ALTHOUGH THE AUTHORITY HAD BEEN GRANTED A LICENSE BY THE FEDERAL
POWER COMMISSION GRANTING IT THE EXCLUSIVE RIGHT TO USE THE 417-ACRE
TRACT AS A DAM SITE, IT COULD NOT THEREBY TAKE PRIVATE PROPERTY WITHOUT
JUST COMPENSATION."  GRAND RIVER DAM AUTHORITY V. GRAND-HYDRO, 200
OKLA. 157, 160, 201 P.2D 225, 227, 228.    AS THE QUESTION IS THUS
PRESENTED WHETHER THE FEDERAL POWER ACT HAS SO FAR AFFECTED THE USE OR
VALUE OF THIS LAND FOR POWER SITE PURPOSES AS TO DEPRIVE IT OF ALL FAIR
MARKET VALUE FOR THOSE PURPOSES AND THUS DEPRIVE THE EVIDENCE OF SUCH
VALUE OF ALL PROBATIVE WEIGHT IN THIS CASE, THE FACT THAT THE STATE
COURT PURPORTED TO REST ITS DECISION LARGELY ON STATE LAW DOES NOT
ELIMINATE OUR DUTY TO CONSIDER THE QUESTION TO THE EXTENT THAT IT
ARISES UNDER FEDERAL LAW.  FN8  AGAIN, IT IS SUGGESTED THAT THE FEDERAL
POWER ACT HAS SUPERSEDED THE STATE LAW AND HAS SET UP A NEW STANDARD OF
VALUATION BINDING UPON THE STATE EVEN IN A CONDEMNATION PROCEEDING
UNDER STATE LAW.  IT IS, OF COURSE, FOR US TO EXAMINE WHETHER QUESTIONS
OF FEDERAL LAW WERE NECESSARILY, ALTHOUGH ONLY IMPLIEDLY, ADJUDICATED
BY THE STATE COURT.  WE ACCEPT THE LAW OF OKLAHOMA, SET FORTH IN THE
ABOVE QUOTATIONS, AS STATING THE PROPER MEASURE OF THE VALUE TO BE
GIVEN TO THIS LAND IN THIS STATE PROCEEDING.  THE RESPECTIVE PARTIES
HAVE PUT DIFFERENT INTERPRETATIONS UPON THIS STATEMENT OF THE OKLAHOMA
LAW BUT THE SUPREME COURT OF THAT STATE HAS SETTLED THE ISSUE IN FAVOR
OF THE RESPONDENT'S INTERPRETATION.  THE PETITIONER POINTS TO THE
FOLLOWING STATEMENT OF THE OKLAHOMA COURT: 

"THE CONDEMNEE IS ORDINARILY ENTITLED TO COMPENSATION MEASURED NOT
ONLY BY THE VALUE OF THE LAND FOR THE USE TO WHICH HE HAS APPLIED IT,
BUT THE VALUE THEREOF FOR ALL POSSIBLE PURPOSES, PRESENT AND
PROSPECTIVE, TO WHICH HE OR HIS ORDINARY GRANTEE MIGHT LEGALLY APPLY
THE SAME."  GRAND-HYDRO V. GRAND RIVER DAM AUTHORITY, 192 OKLA. 693,
694, 139 P.2D 798, 800. 

THE PETITIONER THEN ARGUES THAT, BY VIRTUE OF ITS SPECIAL ACT OF
INCORPORATION, IT HOLDS A GRANT FROM OKLAHOMA OF THE EXCLUSIVE RIGHT TO
DEVELOP THIS POWER SITE INSOFAR AS THE STATE IS CONCERNED, AND THAT IT
HOLDS A GRANT FROM THE UNITED STATES OF THE ONLY FEDERAL LICENSE THAT
HAS BEEN ISSUED FOR THE DEVELOPMENT OF THIS SITE.  THE RESPONDENT, ON
THE OTHER HAND, HOLDS NEITHER A STATE PERMIT NOR A FEDERAL LICENSE TO
USE THIS LAND FOR A POWER SITE, ALTHOUGH IT ORIGINALLY ACQUIRED THE
LAND FOR THAT PURPOSE AND LATER CONVEYED IT TO THE PETITIONER FOR THAT
PURPOSE, UNDER AN AGREEMENT WHICH HAS POSTPONED, UNTIL NOW, THE
DETERMINATION OF ITS PURCHASE PRICE.  THE PETITIONER, WITH THE HELP OF
THE RESPONDENT'S CONVEYANCE TO IT OF THIS LAND AND OF THE RESPONDENT'S
ASSIGNMENT TO IT OF CERTAIN WATER RIGHTS, HAS SECURED JUDICIAL
RECOGNITION OF A PRIOR RIGHT IN ITSELF TO APPROPRIATE UNDER STATE LAW
CERTAIN WATER FROM THE RIVER, AND HAS SECURED FROM THE FEDERAL POWER
COMMISSION THE ABOVE-MENTIONED LICENSE REQUIRED UNDER THE FEDERAL POWER
ACT.  THUS EQUIPPED, THE PETITIONER HAS ERECTED ITS DAM ON THE DAM
SITE. 

ACCORDINGLY, IF THE CORRECT INTERPRETATION OF THE LAW OF OKLAHOMA IS
THAT, IN ORDER FOR THE RESPONDENT TO INTRODUCE EVIDENCE OF THE VALUE OF
THE LAND FOR A DAM SITE, THE RESPONDENT MUST SHOW NOT ONLY THAT THE
LAND IS REASONABLY AND LAWFULLY USABLE FOR THAT PURPOSE, BUT ALSO THAT
THE RESPONDENT ITSELF HOLDS A VALID STATE PERMIT OR FEDERAL LICENSE FOR
THE CONSTRUCTION OF THE DAM ON THAT LAND, THEN IT IS CLEAR THAT THE
EVIDENCE WOULD NOT BE ADMISSIBLE.  HOWEVER, THE SUPREME COURT OF
OKLAHOMA HAS SETTLED THIS ISSUE IN FAVOR OF THE RESPONDENT BY HOLDING
THAT SUCH A PERMIT OR LICENSE IS NOT NECESSARY IN ORDER FOR THE
EVIDENCE TO BE CONSIDERED.  AS TO THE STATE PERMIT, IT HAS HELD
EXPRESSLY IN ITS SECOND OPINION, AS QUOTED AT PP. 368-369 OF THIS
OPINION, THAT THE GRAND RIVER DAM AUTHORITY ACT DID NOT DEPRIVE THE
RESPONDENT OF ITS RIGHT TO COMPENSATION FROM THE PETITIONER FOR THE
VALUE OF THE DAM SITE AS SUCH.  IN FACT, THE COURT THERE SAID THAT SUCH
A RESULT WOULD VIOLATE THE CONSTITUTION OF OKLAHOMA.  IN THAT SAME
OPINION, AS QUOTED AT P. 369 OF THIS OPINION, THAT COURT SETTLED THE
ISSUE THAT POSSESSION OF A FEDERAL LICENSE BY THE RESPONDENT WAS NOT
NECESSARY IN ORDER FOR THE RESPONDENT TO INTRODUCE EVIDENCE OF THE
VALUE OF THIS LAND AS A DAM SITE.  THE COURT SO HELD WHEN IT EXPRESSLY
APPROVED THE ACTION OF THE TRIAL COURT IN ADMITTING THE EVIDENCE IN
QUESTION WHEN OFFERED ON BEHALF OF THE RESPONDENT IN THE ABSENCE OF ANY
FEDERAL LICENSE TO THE RESPONDENT AND IN THE FACE OF THE FEDERAL
LICENSE ALREADY ISSUED TO THE PETITIONER. 

THE SUPREME COURT OF OKLAHOMA STANDS SQUARELY UPON THE LAW OF THE
CASE WHICH IT ANNOUNCED UPON THE FIRST APPEAL OF THIS CASE.  ITS
ORIGINAL STATEMENT AS MADE AT THAT TIME AND AS FURTHER INTERPRETED ON
THE SECOND APPEAL HOLDS THAT IT WAS ENOUGH, FOR THE PRESENT PURPOSES,
THAT THE USE OF THE LAND FOR A DAM SITE WAS A REASONABLE AND LAWFUL USE
TO WHICH THE LAND MIGHT BE APPLIED, WITHOUT SHOWING THAT THE RESPONDENT
ITSELF HELD A PERMIT OR LICENSE AUTHORIZING IT TO BUILD THE DAM.  IT
MAY BE SURMISED THAT THE SUPREME COURT OF OKLAHOMA, IN APPROVING THE
ADMISSION OF THE TESTIMONY BY THE TRIAL COURT, ALSO TREATED THE
PETITIONER AS BEING THE RESPONDENT'S "ORDINARY GRANTEE" OF THE TITLE TO
THIS LAND.  IT IS NOT NECESSARY FOR US TO DETERMINE WHETHER THAT COURT
RELIED UPON ONE OR THE OTHER, OR BOTH, OF THESE ALTERNATIVES.  RELIANCE
ON EITHER WOULD MAKE THE DISPUTED EVIDENCE ADMISSIBLE UNDER THE
OKLAHOMA LAW. 

UNDER THIS INTERPRETATION OF THE STATE LAW THE ANSWER TO THE
REMAINING FEDERAL QUESTION IS OBVIOUS.  IT IS CLEAR THAT THE FEDERAL
POWER ACT CANNOT BE SAID TO HAVE SO FAR AFFECTED THE USE OF THIS LAND
FOR A POWER SITE AS TO DESTROY OR OTHERWISE RENDER VALUELESS THE
OWNER'S RIGHT TO USE IT FOR THAT PURPOSE.  THAT ACT MERELY HAS ATTACHED
CONDITIONS TO THE USE OF THE LAND FOR A POWER SITE.  THE ACT SEEKS TO
ENCOURAGE RATHER THAN TO PROHIBIT THE DEVELOPMENT OF POWER SITES.  IT
SEEKS TO PRESERVE OR ENHANCE, NOT TO DESTROY, THEIR VALUE AS SUCH. 
WHILE THE ACT HAS LIMITED THE TIME AND MANNER OF THE USE OF THIS
PARTICULAR LAND FOR A POWER SITE, THE ACT HAS LEFT GREAT BENEFITS
AVAILABLE TO THE OWNER FROM SUCH A USE OF THE LAND.  THE PRESENT LARGE
DEVELOPMENT OF THIS SITE BY THE PETITIONER UNDER A FEDERAL LICENSE IS
CONVINCING PROOF OF THE VALUE AND AVAILABILITY OF THE LAND FOR THAT
PURPOSE. 

IN A VOLUNTARY PURCHASE OF THIS LAND BY THE PETITIONER, AS A WILLING
PURCHASER, FROM THE RESPONDENT, AS A WILLING AND UNOBLIGATED SELLER,
THE VALUE OF IT AS A POWER SITE INEVITABLY WOULD HAVE ENTERED INTO THE
NEGOTIATED PRICE.  THE PETITIONER AND THE RESPONDENT LONG HAVE BEEN
COMPETITORS FOR THE DEVELOPMENT OF THIS SITE FOR POWER PURPOSES.  EACH
WAS GRANTED, BY STATE LAW, A RIGHT TO CONDEMN THE LAND BUT THE
PETITIONER GAINED A PRIORITY OVER THE RESPONDENT BY VIRTUE OF THE GRAND
RIVER DAM AUTHORITY ACT.  THE PETITIONER'S PURCHASE AMOUNTS TO AN
ACQUISITION OF PRIVATE PROPERTY FOR A PUBLIC USE.  THE PETITIONER MAKES
NO CLAIM TO ANY RIGHT TO MAKE USE OF THE NATURAL ASSET OF WATER POWER
IN THE STREAMS OF THE STATE WITHOUT PAYING THE FAIR MARKET VALUE OF THE
LAND OCCUPIED FOR THAT PURPOSE. 

AS BETWEEN THESE TWO CORPORATIONS SEEKING TO DETERMINE THE SALES
PRICE OF THIS LAND, THE FEDERAL POWER ACT PLACED NO LIMITATION UPON
THEIR VOLUNTARY NEGOTIATIONS.  THE PRESENT PROCEEDING IS IN SUBSTANCE A
PART OF THEIR ORIGINAL AGREEMENT FOR THE SALE OF THE LAND BY THE
RESPONDENT TO THE PETITIONER. 

IF EITHER THE UNITED STATES, OR ITS LICENSEE AS SUCH, WERE SEEKING TO
ACQUIRE THIS LAND UNDER THE FEDERAL POWER ACT, IT MIGHT FACE DIFFERENT
CONSIDERATIONS FROM THOSE STATED ABOVE.  THE UNITED STATES ENJOYS
SPECIAL RIGHTS AND POWER IN RELATION TO NAVIGABLE STREAMS AND ALSO TO
STREAMS WHICH AFFECT INTERSTATE COMMERCE.  THE UNITED STATES, HOWEVER,
IS NOT A PARTY TO THE PRESENT CASE.  IT IS NOT ASSERTING ITS RIGHT TO
CONDEMN THIS LAND.  THE PETITIONER, LIKEWISE, IS NOT SEEKING TO ENFORCE
SUCH RIGHTS AS IT MIGHT HAVE TO CONDEMN THIS LAND BY VIRTUE OF ITS
FEDERAL LICENSE.  FN9 ACCORDINGLY, WE EXPRESS NO OPINION UPON WHAT
WOULD BE THE APPROPRIATE MEASURE OF VALUE IN A CONDEMNATION ACTION
BROUGHT BY THE UNITED STATES OR BY ONE OF ITS LICENSEES IN RELIANCE
UPON RIGHTS DERIVED UNDER THE FEDERAL POWER ACT. 

IT HAS BEEN SUGGESTED THAT THE PROVISIONS OF THE FEDERAL POWER ACT
BEARING UPON THE ALLOWANCE OF A VALUATION FOR THE PROJECT AS PART OF
THE RATE BASE OF A FEDERAL LICENSEE MAY BE MATERIAL IN THIS CASE.  FN10
WHATEVER THE RELATION OF THOSE PROVISIONS MAY BE TO THIS PROJECT, IT
IS NOT SUCH AS TO CHANGE THE OKLAHOMA LAW AS TO THE FAIR MARKET VALUE
OF THE LAND BETWEEN THE PARTIES TO THIS CASE.  IT MAY BE THAT, AT SOME
LATER DATE WHEN THE PETITIONER, AS A FEDERAL LICENSEE, SHALL BE READY
TO SELL POWER, THE COMMISSION OR OTHER APPROPRIATE BODY WILL THEN GIVE
CONSIDERATION TO THE VALUE TO BE ALLOWED FOR THIS LAND IN THE
PETITIONER'S RATE BASE.  THERE IS, HOWEVER, NOTHING IN THE FEDERAL
POWER ACT THAT PURPORTS TO PRESCRIBE THE PRICE WHICH A PURCHASER OF
LAND MAY PAY VOLUNTARILY AND IN GOOD FAITH FOR LAND WHICH IT LATER
INCORPORATES INTO A PROJECT.  THERE ALSO IS NOTHING IN THE ACT WHICH
PRESCRIBES THAT THE SELLER, RATHER THAN THE PURCHASER, OR THAT THE
CONDEMNEE, RATHER THAN THE CONDEMNOR, OF LAND ACQUIRED FOR A PROJECT
MUST ABSORB THE REDUCTION, IF ANY, WHICH IS TO BE MADE LATER IN THE
ALLOWANCE OF VALUE FOR THAT LAND IN THE PURCHASER'S RATE BASE AS
COMPARED WITH THE ORIGINAL PRICE PAID FOR IT BY THE PURCHASER IN A
NEGOTIATED PURCHASE OR IN A STATE CONDEMNATION PROCEEDING.  AS TO THE
QUESTION WHETHER THE FEDERAL POWER ACT SHOULD BE INTERPRETED AS
ACTUALLY SUPERSEDING THE STATE LAW OF CONDEMNATION AND AS RESTRICTING
THE MEASURE OF VALUATION WHICH LAWFULLY MAY BE USED BY THE COURTS OF
OKLAHOMA IN A CONDEMNATION ACTION FOR THE ACQUISITION OF LAND FOR POWER
SITE PURPOSES BY AN AGENCY OF THAT STATE, THERE IS NOTHING IN THE
FEDERAL POWER ACT TO INDICATE THAT AN ATTEMPT HAS BEEN MADE BY CONGRESS
TO MAKE SUCH A NATIONWIDE CHANGE IN STATE LAWS.  FN11 

THERE ALSO HAS BEEN A SUGGESTION MADE OF THE POSSIBLE MATERIALITY IN
THIS CASE OF THOSE PROVISIONS OF THE FEDERAL POWER ACT WHICH RELATE TO
THE PRICE TO BE PAID BY THE UNITED STATES IN THE EVENT THAT IT TAKES
OVER THE PROJECT OF A LICENSEE UPON OR AFTER THE EXPIRATION OF A
FEDERAL LICENSE.  FN12  THE ISSUES RAISED BY THAT SUGGESTION ARE
COMPARABLE TO THOSE JUST DISCUSSED IN RELATION TO THE RATE BASE OF A
FEDERAL PROJECT, EXCEPT THAT SUCH A RECAPTURE OF THE PROJECT IS EVEN
MORE REMOTE THAN THE DETERMINATION OF A RATE BASE FOR THE COMPUTATION
OF RATES TO BE CHARGED FOR ITS PRODUCT.  WE ACCORDINGLY EXPRESS NO
OPINION UPON THE ISSUES WHICH MAY ARISE WHEN, AS AND IF THE ABOVE
MENTIONED PROCEEDINGS MAY BE TAKEN. 

FOR THESE REASONS, THE JUDGMENT OF THE SUPREME COURT OF OKLAHOMA IS
AFFIRMED. 

FN1  41 STAT. 1063, AS AMENDED, 49 STAT. 838, 16 U.S.C. SECS. 791A
825R. 

FN2  THE UNITED STATES HAS A FURTHER INTEREST IN THE CASE BECAUSE THE
PETITIONER'S PROJECT HAS BEEN FINANCED LARGELY THROUGH A FEDERAL LOAN
AND GRANT AGREEMENT.  AT THE TIME OF FILING ITS BRIEF IN SUPPORT OF THE
PETITION FOR CERTIORARI, THE GOVERNMENT HELD APPROXIMATELY $14,000,000
OF THE PETITIONER'S REVENUE BONDS.  SEE ALSO, ACT OF JULY 31, 1946, 60
STAT. 743, AS TO THE REFINANCING OF THESE BONDS. 

FN3  GRAND RIVER DAM AUTHORITY ACT, OKLA. SESS. L. 1935, C. 70, ART.
4(SEN.  BILL NO. 395); OKLA. SESS. L. 1936-1937, C. 70, ART. 1(SEN. 
BILL NO. 299), AND ART. 2(HOUSE BILL NO. 3); OKLA. STAT. ANN. TIT. 82,
SECS. 861-881(1938).  THE POWER OF EMINENT DOMAIN IS GRANTED TO THE
PETITIONER BY SEC. 2(F) OF THE ORIGINAL ACT.  "SECTION 2.  POWERS,
RIGHTS AND PRIVILEGES. 

     .         .         .         .         . 

"(F)  TO ACQUIRE BY CONDEMNATION ANY AND ALL PROPERTY OF ANY KIND,
REAL, PERSONAL, OR MIXED, OR ANY INTEREST THEREIN WITHIN OR WITHOUT THE
BOUNDARIES OF THE DISTRICT NECESSARY OR CONVENIENT TO THE EXERCISE OF
THE POWERS, RIGHTS, PRIVILEGES AND FUNCTIONS CONFERRED UPON IT BY THIS
ACT, IN THE MANNER PROVIDED BY GENERAL LAW WITH RESPECT TO
CONDEMNATION;" 

.         .         .         .         . OKLA. SESS. L. 1935, C.
70, ART. 4. 

FN4  OKLA. REV. L. 1910, C. 40; OKLA. SESS. L. 1927, C. 70(HOUSE BILL
NO. 62); OKLA. STAT. ANN. TIT. 82, SECS. 451-510(1938). 

FN5  THIS LOWER COURT PROCEEDING IS THUS DESCRIBED IN GRAND-HYDRO V.
GRAND RIVER DAM AUTHORITY, 192 OKLA. 693, 697-698, 139 P.2D 798, 803
804. 

FN6  SEE NOTE 3, SUPRA. 

FN7  "SEC.  23.  ... 

"(B)  ...  ANY PERSON, ASSOCIATION, CORPORATION, STATE, OR
MUNICIPALITY INTENDING TO CONSTRUCT A DAM OR OTHER PROJECT WORKS
ACROSS, ALONG, OVER, OR IN ANY STREAM OR PART THEREOF, OTHER THAN THOSE
DEFINED HEREIN AS NAVIGABLE WATERS, AND OVER WHICH CONGRESS HAS
JURISDICTION UNDER ITS AUTHORITY TO REGULATE COMMERCE WITH FOREIGN
NATIONS AND AMONG THE SEVERAL STATES SHALL BEFORE SUCH CONSTRUCTION
FILE DECLARATION OF SUCH INTENTION WITH THE COMMISSION, WHEREUPON THE
COMMISSION SHALL CAUSE IMMEDIATE INVESTIGATION OF SUCH PROPOSED
CONSTRUCTION TO BE MADE, AND IF UPON INVESTIGATION IT SHALL FIND THAT
THE INTERESTS OF INTERSTATE OR FOREIGN COMMERCE WOULD BE AFFECTED BY
SUCH PROPOSED CONSTRUCTION, SUCH PERSON, ASSOCIATION, CORPORATION,
STATE, OR MUNICIPALITY SHALL NOT CONSTRUCT, MAINTAIN, OR OPERATE SUCH
DAM OR OTHER PROJECT WORKS UNTIL IT SHALL HAVE APPLIED FOR AND SHALL
HAVE RECEIVED A LICENSE UNDER THE PROVISIONS OF THIS ACT.  IF THE
COMMISSION SHALL NOT SO FIND, AND IF NO PUBLIC LANDS OR RESERVATIONS
ARE AFFECTED, PERMISSION IS HEREBY GRANTED TO CONSTRUCT SUCH DAM OR
OTHER PROJECT WORKS IN SUCH STREAM UPON COMPLIANCE WITH STATE LAWS." 
49 STAT. 846, 16 U.S.C. SEC. 817.    FN8  SEE ENTERPRISE IRRIGATION
DIST. V. FARMERS MUTUAL CANAL CO., 243 U.S. 157, 164; NUTT V. KNUT, 200
U.S. 12, 19; AND UNITED STATES V. BELLINGHAM BAY BOOM CO., 176 U.S.
211, 218.  SEE ALSO, DAVIS V. WECHSLER, 263 U.S. 22, 24-25; AND
AMERICAN RAILWAY EXPRESS CO. V. LEVEE, 263 U.S. 19.    FN9  41 STAT.
1074, 16 U.S.C. SEC. 814. 

FN10  41 STAT. 1073, 16 U.S.C. SECS. 812, 813, AND SEE 41 STAT. 1071,
AS AMENDED, 49 STAT. 844, 16 U.S.C. SEC. 807. 

FN11  EVEN IN A CONDEMNATION ACTION BROUGHT IN A DISTRICT COURT OF
THE UNITED STATES UNDER AUTHORITY OF THE FEDERAL POWER ACT, THE
PRACTICE AND PROCEDURE IS TO CONFORM AS NEARLY AS MAY BE WITH THAT IN
THE COURTS OF THE STATE WHERE THE PROPERTY IS SITUATED.  SEE 41 STAT.
1074, 16 U.S.C. SEC. 814. 

FN12  41 STAT. 1071, AS AMENDED, 49 STAT. 844, 16 U.S.C. SEC. 807. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE MURPHY,
AND MR. JUSTICE RUTLEDGE JOIN, DISSENTING. 

THE RESULT OF THIS DECISION, NO MATTER HOW IT IS RATIONALIZED, IS TO
GIVE THE WATER-POWER VALUE OF THE CURRENT OF A RIVER TO A PRIVATE PARTY
WHO BY REASON OF FEDERAL LAW NEITHER HAS NOR CAN ACQUIRE ANY LAWFUL
CLAIM TO IT.  THE UNITED STATES HAS ASSERTED THROUGH THE FEDERAL POWER
ACT ITS EXCLUSIVE DOMINION AND CONTROL OVER THIS WATER POWER.  FN1
THAT ACT SPECIFIES HOW ONE MAY ACQUIRE A LICENSE TO EXPLOIT IT, SEC.
23(B), AND THE CONDITIONS UNDER WHICH THE LICENSEE MUST OPERATE.  SEE
FIRST IOWA COOP.  V. FEDERAL POWER COMM'N, 328 U.S. 152. 

PETITIONER HAS SUCH A LICENSE.  RESPONDENT HAS NONE AND, FOR REASONS
UNNECESSARY TO RELATE HERE, CONCEDEDLY CANNOT OBTAIN ONE.  RESPONDENT
THEREFORE HAS NO CLAIM TO THE WATER-POWER VALUE WHICH THE LAW CAN
RECOGNIZE, IF THE POLICY OF THE FEDERAL POWER ACT IS TO BE RESPECTED. 
WHEN RESPONDENT'S CLAIM IS RECOGNIZED, THE EFFECT IS TO MAKE PETITIONER
PAY A PRIVATE CLAIMANT FOR A PRIVILEGE WHICH ONLY THE UNITED STATES CAN
GRANT. 

THAT IS THE BALD RESULT WHETHER THE CONDEMNATION TAKES PLACE IN A
STATE OR A FEDERAL COURT.  WHATEVER THE PROCEDURE, THE CONSEQUENCE IS
TO GIVE PRIVATE PARTIES AN ENTRENCHED PROPERTY INTEREST IN THE PUBLIC
DOMAIN, WHICH THE FEDERAL POWER ACT WAS DESIGNED TO DEFEAT. 

THE PUBLIC BURDEN IS THE SAME AND THE IMPAIRMENT OF THE POLICY OF THE
FEDERAL ACT IS IDENTICAL WHETHER THE JUDGMENT IS ENTERED BY A STATE OR
A FEDERAL COURT.  NEVER BEFORE, I BELIEVE, HAS A FEDERAL RIGHT BEEN
ALLOWED LESS PROTECTION IN A STATE COURT THAN IT IS ENTITLED TO RECEIVE
IN THE FEDERAL COURT.  FN2 

FN1  THE EXCLUSIVE CONTROL WHICH THE UNITED STATES HAS IN THE WATER
POWER OF A NAVIGABLE STREAM (UNITED STATES V. CHANDLER-DUNBAR CO., 229
U.S. 53, 69; UNITED STATES V. APPALACHIAN ELECTRIC CO., 311 U.S. 377,
427-428) EXTENDS TO THE WATER POWER OF A NONNAVIGABLE STREAM WHERE
PRIVATE COMMAND OVER IT IS INCONSISTENT WITH THE FEDERAL PROGRAM OF
CONTROL OVER NAVIGATION.  UNITED STATES V. WILLOW RIVER CO., 324 U.S.
499, 509.  FEDERAL REGULATION AND CONTROL HAS THE SAME EFFECT IN EACH
CASE.  OKLAHOMA V. ATKINSON CO., 313 U.S. 508, 525. 

IT HAS BEEN FOUND IN THIS CASE (AND IS UNCHALLENGED HERE) THAT THE
CONSTRUCTION AND OPERATION OF THIS PROJECT WILL AFFECT THE NAVIGABLE
STAGES OF THE ARKANSAS RIVER, A NAVIGABLE WATER OF THE UNITED STATES,
TO WHICH THE GRAND RIVER IS TRIBUTARY.  SEE H.R. DOC. NO. 242, 67TH
CONG., 2D SESS. 123(1921); H.R. DOC. NO. 107, 76TH CONG., 1ST SESS.
6(1939); ACT OF AUGUST 18, 1941, 55 STAT. 645. 

FN2  ARTICLE VI OF THE CONSTITUTION MAKES ACTS OF CONGRESS "THE
SUPREME LAW OF THE LAND" AND DIRECTS THAT "THE JUDGES IN EVERY STATE
SHALL BE BOUND THEREBY." 
..END :
















FORD MOTOR CO. V. UNITED STATES, 335 U.S. 303 


ARGUED OCTOBER 11, 1948.  - DECIDED NOVEMBER 15, 1948.  - 68 F.SUPP. 
825, REVERSED. 


1.  IN A CIVIL ANTITRUST SUIT BY THE UNITED STATES AGAINST FORD AND A
FINANCE COMPANY, A 1938 CONSENT DECREE PROHIBITED AFFILIATION BY FORD
WITH ANY FINANCE COMPANY, BUT PROVIDED THAT THE PROHIBITION WOULD CEASE
IF, BY JANUARY 1, 1941, GENERAL MOTORS WAS NOT SIMILARLY PROHIBITED BY
COURT ORDER.  IN 1940, THE GOVERNMENT BROUGHT AN EQUITY SUIT AGAINST
GENERAL MOTORS SEEKING DIVESTITURE OF ITS AFFILIATED FINANCE COMPANY. 
AFTER SUCCESSIVE EXTENSIONS OF THE PROHIBITION AGAINST FORD, THE
GOVERNMENT MOVED, ON DECEMBER 31, 1945, TO EXTEND THE PROHIBITION TO
JANUARY 1, 1947.  THE SUIT AGAINST GENERAL MOTORS HAS NOT YET BEEN SET
FOR TRIAL.  FORD AND THE FINANCE COMPANY MOVED THAT THE PROHIBITION BE
LIFTED.  THE DISTRICT COURT GRANTED THE GOVERNMENT'S MOTION AND DENIED
DEFENDANTS' MOTION.  HELD: 

(A)  ALTHOUGH THE EXTENSION TO JANUARY 1, 1947, HAS EXPIRED, THE
QUESTION WHETHER THE DISTRICT COURT PROPERLY GRANTED IT IS NOT MOOT,
SINCE THE GOVERNMENT'S MOTION FOR A FURTHER EXTENSION HAS BEEN HELD IN
ABEYANCE PENDING THE OUTCOME OF THESE APPEALS.  P. 313. 

(B)  FORD WAS ENTITLED TO THE LIFTING OF THE PROHIBITION AGAINST
AFFILIATION WITH ANY FINANCE COMPANY, AND THE DISTRICT COURT'S
EXTENSION OF THE PROHIBITION TO JANUARY 1, 1947, WAS IMPROPER. 
CHRYSLER CORP. V. UNITED STATES, 316 U.S. 556, DISTINGUISHED.  PP. 320
322. 

2.  THE CONSENT DECREE ALSO RESTRAINED VARIOUS PRACTICES WHEREBY
DEALERS WERE INFLUENCED TO PATRONIZE THE FINANCE COMPANY, BUT PROVIDED
THAT FORD COULD MOVE FOR MODIFICATION OR SUSPENSION IF SIMILAR
RESTRICTIONS WERE NOT IMPOSED ON GENERAL MOTORS BY COURT ACTION.  IT
ALSO PROVIDED THAT A GENERAL VERDICT OF GUILTY IN A PENDING ANTITRUST
CRIMINAL PROCEEDING AGAINST GENERAL MOTORS WOULD BE DEEMED A
DETERMINATION OF THE ILLEGALITY OF ANY AGREEMENT, ACT OR PRACTICE
"WHICH IS HELD BY THE TRIAL COURT, IN ITS INSTRUCTIONS TO THE JURY, TO
CONSTITUTE A PROPER BASIS FOR THE RETURN OF A GENERAL VERDICT OF
GUILTY."  IN 1939, THE JURY RETURNED A GENERAL VERDICT OF GUILTY
AGAINST GENERAL MOTORS UPON INSTRUCTIONS THAT COERCION OF DEALERS TO
UTILIZE AN AFFILIATED FINANCE COMPANY WAS ILLEGAL BUT THAT MERE
PERSUASION WAS NOT.  FORD AND THE FINANCE COMPANY MOVED TO SUSPEND OR
MODIFY PROVISIONS OF THE DECREE FORBIDDING FORD TO RECOMMEND, ENDORSE,
OR ADVERTISE THE FINANCE COMPANY, TO HAVE AGENTS OF FORD AND OF THE
FINANCE COMPANY PRESENT TOGETHER WITH A DEALER FOR THE PURPOSE OF
INFLUENCING THE DEALER TO PATRONIZE THE FINANCE COMPANY, AND TO
DISCRIMINATE AGAINST OTHER FINANCE COMPANIES.  HELD:  UPON THE BASIS OF
THE TRIAL COURT'S INSTRUCTIONS TO THE JURY IN THE CRIMINAL PROCEEDING
AGAINST GENERAL MOTORS, THE MOTION SHOULD HAVE BEEN GRANTED.  PP. 313
320. 

3.  IN THE PRESENT POSTURE OF THE CASE, THE GOVERNMENT'S CLAIM THAT
THE PRACTICES RESTRAINED BY THE PROVISIONS OF THE DECREE ARE ILLEGAL
UNDER THE SHERMAN LAW, WHICH HAS NEITHER BEEN ADMITTED NOR PROVEN, DOES
NOT JUSTIFY THE REFUSAL OF A COURT OF EQUITY TO SUSPEND OR MODIFY
THEM.  P. 320. 

(A)  APPELLANTS ARE ENTITLED TO INSIST THAT, SO LONG AS INTERDICTION
OF THESE PRACTICES HAS NOT BEEN DECREED AGAINST GENERAL MOTORS, THE
GOVERNMENT BE PUT TO ITS PROOF.  P. 320. 

(B)  LIFTING OF THE RESTRAINTS IMPOSED BY THE CONSENT DECREE WOULD
NOT AFFECT THE LIABILITY OF FORD FOR ANY VIOLATIONS OF THE SHERMAN LAW
THAT THE GOVERNMENT MAY ESTABLISH IN COURT.  P. 320. 

(C)  TO THE EXTENT THAT SUCH RESTRAINTS MAY IN FUTURE BE IMPOSED ON
GENERAL MOTORS, THEY WOULD, BY THE TERMS OF THE CONSENT DECREE, ALSO
BIND FORD.  P. 320. 

FORD MOTOR CO. V. UNITED STATES. 

NO. 1.  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF INDIANA* . 

*TOGETHER WITH NO. 2, COMMERCIAL INVESTMENT TRUST CORP. ET AL. V.
UNITED STATES, ALSO ON APPEAL FROM THE SAME COURT. 

IN AN ANTITRUST SUIT BY THE UNITED STATES AGAINST THE FORD MOTOR
COMPANY AND A FINANCE COMPANY, THE GOVERNMENT MOVED IN THE DISTRICT
COURT FOR A FURTHER EXTENSION OF A PROVISION OF A CONSENT DECREE
PROHIBITING FORD FROM AFFILIATING WITH ANY FINANCE COMPANY.  FORD AND
THE FINANCE COMPANY MOVED FOR A LIFTING OF THE PROHIBITION AND FOR
SUSPENSION OR MODIFICATION OF OTHER PROVISIONS OF THE DECREE.  THE
DISTRICT COURT GRANTED THE GOVERNMENT'S MOTION AND DENIED THE OTHERS. 
68 F.SUPP.  825.  UPON APPEALS TO THIS COURT, REVERSED, P. 322. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE CASES WERE BROUGHT HERE ON APPEAL, PRIOR TO THE REVISION OF
TITLE 28, U.S.C. UNDER WHAT WAS SEC. 345 AND SINCE SEPTEMBER 1 HAS
BECOME SEC. 2101 OF THAT TITLE, TO REVIEW FINAL DECREES OF THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA IN A SUIT IN
EQUITY BROUGHT BY THE UNITED STATES UNDER SEC. 4 OF THE SHERMAN LAW, 26
STAT. 209, AS AMENDED, 36 STAT. 1167, 15 U.S.C. SEC. 4.  THE CASES
PRESENT ANOTHER PHASE OF A MULTIFARIOUS LITIGATION WHICH HAS BEEN
OCCUPYING THE ATTENTION OF THE FEDERAL JUDICIAL SYSTEM FOR MORE THAN A
DECADE.  UNITED STATES V. GENERAL MOTORS CORP., 26 F.SUPP.  353(N.D.
IND.); UNITED STATES V. GENERAL MOTORS CORP., 121 F.2D 376(C.A.7TH
CIR.), CERT. DENIED, 314 U.S. 618, REHEARING DENIED, 314 U.S. 710;
UNITED STATES V. GENERAL MOTORS CORP., 2 F.R.D. 346(N.D. ILL.); UNITED
STATES V. GENERAL MOTORS CORP., 2 F.R.D. 528(N.D. ILL.); CHRYSLER CORP.
V. UNITED STATES, 314 U.S. 583, REHEARING DENIED, 314 U.S. 716;
CHRYSLER CORP. V. UNITED STATES, 316 U.S. 556.  AN ANALYTICAL SUMMARY
OF THIS LITIGATION WILL MAKE CLEAR THE IMMEDIATE ISSUES BEFORE US AND,
INDEED, LARGELY DISPOSE OF THEM. 

ON MAY 27, 1938, INDICTMENTS WERE RETURNED IN THE DISTRICT COURT OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF INDIANA, SOUTH BEND
DIVISION, AGAINST THE THREE LEADING AUTOMOBILE MANUFACTURERS AND THE
COMPANIES WHICH FINANCED THE SALE OF THEIR AUTOMOBILES.  ONE INDICTMENT
WAS AGAINST THE PRESENT APPELLANTS, FORD MOTOR COMPANY, AND COMMERCIAL
INVESTMENT TRUST CORPORATION, COMMERCIAL INVESTMENT TRUST, INC., AND
UNIVERSAL CREDIT CORPORATION, THESE THREE REFERRED TO COLLECTIVELY AS
CIT; ANOTHER AGAINST CHRYSLER CORPORATION AND COMMERCIAL CREDIT
COMPANY; A THIRD AGAINST GENERAL MOTORS CORPORATION AND ITS SUBSIDIARY,
GENERAL MOTORS ACCEPTANCE CORPORATION, TO BE ABBREVIATED AS GMAC.  THE
INDICTMENTS CHARGED THE AUTOMOBILE MANUFACTURERS AND THE JOINTLY NAMED
FINANCE COMPANIES WITH VIOLATIONS OF THE SHERMAN LAW BY INFLUENCING
DEALERS WHO SOLD THE AUTOMOBILES OF THE RESPECTIVE MANUFACTURERS TO
GIVE THE FINANCE COMPANIES THE BUSINESS OF FINANCING THE DEALERS'
WHOLESALE PURCHASES AND RETAIL SALES OF AUTOMOBILES. 

FOLLOWING THESE CHARGES, NEGOTIATIONS WERE SET AFOOT TO SECURE THE
ELIMINATION THROUGH CONSENT DECREES OF THE PRACTICES DESCRIBED IN THE
INDICTMENTS.  AS TO THE FORD AND CHRYSLER GROUPS, THE GOVERNMENT, ON
NOVEMBER 7, 1938, FILED SUITS IN EQUITY AND ARRANGED FOR THE DISMISSAL
OF THEIR INDICTMENTS.  (FOR PRESENT PURPOSES WE ARE NOT FURTHER
CONCERNED WITH CHRYSLER.)  ALTHOUGH FORD AND CIT FORMALLY RESISTED THE
COMPLAINT, DENYING ITS ALLEGATIONS AND PLEADING AFFIRMATIVE DEFENSES,
NEGOTIATIONS FOR A CONSENT DECREE PROCEEDED.  EFFORTS TOWARD AN
AMICABLE SETTLEMENT WITH GENERAL MOTORS AND GMAC FAILED.  THE
GOVERNMENT THEREFORE PRESSED THE CRIMINAL CHARGES AGAINST THEM.  IN
VIEW OF THE COMPETITIVE CONDITIONS IN THE AUTOMOBILE INDUSTRY IT
OBVIOUSLY BECAME OF CRUCIAL IMPORTANCE TO FORD NOT TO CONSENT TO ANY
RESTRAINTS BEYOND THOSE WHICH WOULD FALL UPON GENERAL MOTORS THROUGH
THE CONTINGENCIES OF LITIGATION AGAINST IT.  BUT IT WOULD NOT HAVE BEEN
ENOUGH MERELY TO PROVIDE THAT RESTRAINTS WHICH FORD ACCEPTED SHOULD
EVENTUALLY BE LIFTED TO THE EXTENT NOT IMPOSED UPON GENERAL MOTORS AT
SOME REMOTE TIME DEFINED MERELY BY THE VICISSITUDES OF LITIGATION. 
PROTECTION AGAINST COMPETITIVE DISADVANTAGE, THE APPROPRIATENESS OF
WHICH THE GOVERNMENT RECOGNIZED, REQUIRED A TIME CERTAIN AT THE END OF
WHICH THE RESTRAINTS AGAINST FORD WOULD EXPIRE IF GENERAL MOTORS WERE
STILL FREE OF THEM. 

ACCORDINGLY, THE CONSENT DECREE, ENTERED ON NOVEMBER 15, 1938,
ASSURED FORD ESSENTIAL EQUALITY OF POSITION WITH THE UNCONSENTING
GENERAL MOTORS BY TWO EXPLICIT CONDITIONS.  THEIR TERMS ARE FULLY SET
OUT IN THE MARGIN; FN1  THEIR ESSENCE CAN BE BRIEFLY SUMMARIZED. 
PARAGRAPH 12 FORBIDS FORD FROM ACQUIRING CONTROL OF ANY FINANCE
COMPANY.  AFTER ENUMERATING VARIOUS FORBIDDEN FORMS OF FINANCIAL
INTEREST, THE PARAGRAPH PROVIDES THAT, IF THE GOVERNMENT SHOULD NOT
HAVE OBTAINED A FINAL DECREE AGAINST GENERAL MOTORS BY JANUARY 1, 1941,
REQUIRING IT TO DIVEST ITSELF OF ALL INTEREST IN GMAC, ITS AFFILIATED
FINANCE COMPANY, THE PROHIBITION AGAINST FORD WOULD CEASE.  THE SECOND
EXPRESS CONDITION, DESIGNED TO RELIEVE FROM RESTRAINTS IMPOSED BY
EARLIER PARAGRAPHS IN THE DECREE AGAINST VARIOUS MEANS OF INFLUENCING
DEALERS TO PATRONIZE CIT, IS FOUND IN PARAGRAPH 12A.  THAT PARAGRAPH
ADDRESSED ITSELF TO THE POSSIBLE EVENTUALITIES OF THE CRIMINAL
PROCEEDING AGAINST GENERAL MOTORS AND GMAC:  (1) ITS TERMINATION WITH A
RESULT OTHER THAN A JUDGMENT OF CONVICTION; (2) A GENERAL VERDICT OF
GUILTY; (3) A SPECIAL VERDICT OF GUILTY; (4) A PLEA OF GUILTY OR NOLO
CONTENDERE.  UPON THE FIRST CONTINGENCY ALL RESTRICTIVE TERMS OF THE
DECREE AGAINST FORD WOULD BE SUSPENDED UNTIL SIMILAR RESTRAINTS WERE
IMPOSED UPON GENERAL MOTORS AND GMAC.  THE SECOND WAS TO BE "DEEMED TO
BE A DETERMINATION OF THE ILLEGALITY OF ANY AGREEMENT, ACT OR PRACTICE
OF GENERAL MOTORS CORPORATION WHICH IS HELD BY THE TRIAL COURT, IN ITS
INSTRUCTIONS TO THE JURY, TO CONSTITUTE A PROPER BASIS FOR THE RETURN
OF A GENERAL VERDICT OF GUILTY."  THE THIRD AND FOURTH WERE,
RESPECTIVELY, TO BE DEEMED DETERMINATIONS OF THE ILLEGALITY OF "ANY
AGREEMENT, ACT OR PRACTICE" WHICH WAS THEIR SUBJECT MATTER. 

THESE PROVISIONS FURNISH A LITMUS-PAPER TEST FOR DETERMINING WHAT
RESTRAINTS SURVIVE THE RESULT OF THE PROCEEDING AGAINST GENERAL MOTORS
AND GMAC.  WHAT WAS NOT ILLEGAL FOR GENERAL MOTORS WAS NOT LONGER TO BE
PROHIBITED TO FORD.  THE SWORD OF JUSTICE WAS TO STRIKE BOTH ALIKE. 
PARAGRAPH 12A FURTHER DEFINES HOW AND WHEN THE RESTRAINTS WERE TO BE
RELAXED.  SUB-PARAGRAPH (3) PROVIDES THAT AFTER THE ENTRY OF A DECREE
AGAINST GENERAL MOTORS, OR AFTER THE ENTRY OF A JUDGMENT OF CONVICTION
IN THE PENDING CRIMINAL PROCEEDINGS "OR AFTER JANUARY 1, 1940(WHICHEVER
DATE IS EARLIEST), THE COURT UPON APPLICATION OF ANY RESPONDENT FROM
TIME TO TIME WILL ENTER ORDERS" SUSPENDING ANY RESTRAINT AGAINST IT
(WITH EXCEPTIONS NOT NOW RELEVANT) "TO THE EXTENT THAT IT IS NOT THEN
IMPOSED, AND UNTIL IT SHALL BE IMPOSED, IN SUBSTANTIALLY IDENTICAL
TERMS" UPON GENERAL MOTORS OR GMAC. 

ON NOVEMBER 17, 1939, THE JURY RETURNED A GENERAL VERDICT OF GUILTY
AGAINST GENERAL MOTORS, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
AFFIRMED THE JUDGMENT UPON THAT VERDICT, 121 F.2D 376, AND THIS COURT
DENIED FURTHER REVIEW.  314 U.S. 618; ID. AT 710. 

ON OCTOBER 4, 1940, THE GOVERNMENT FINALLY BROUGHT A SUIT IN EQUITY
AGAINST GENERAL MOTORS SEEKING DIVESTITURE OF ITS CONTROL OF GMAC.  BUT
IT WAS THEN TOO LATE FOR A DECREE TO BE ENTERED BEFORE THE LAPSE OF
FORD'S AGREEMENT NOT TO BECOME AFFILIATED WITH A FINANCE COMPANY.  ON
DECEMBER 21, 1940, THEREFORE, THE GOVERNMENT MADE A MOTION ASKING TO
HAVE PARAGRAPH 12 MODIFIED BY MOVING FORWARD THE DATE WHEN THE
PROHIBITION AGAINST AFFILIATION WOULD EXPIRE IF A DECREE AGAINST
GENERAL MOTORS HAD NOT THEN BEEN ENTERED.  EACH YEAR AFTER THAT, AS THE
NEW DEADLINE CAME NEAR, THE GOVERNMENT MADE A NEW MOTION TO HAVE IT
EXTENDED, AND YEAR AFTER YEAR FORD CONSENTED TO THE EXTENSION.  ON
DECEMBER 31, 1945, THE GOVERNMENT AGAIN MOVED TO HAVE THE PROHIBITION
AGAINST AFFILIATION EXTENDED, THIS TIME TO JANUARY 1, 1947.  FORD NOW
RESISTED THE MOTION, AND ON MAY 4, 1946, BOTH FORD AND CIT FILED
MOTIONS OF THEIR OWN.  THEY ASKED THE DISTRICT COURT TO SUSPEND SUB
PARAGRAPHS (I) AND (K) OF PARAGRAPH 6 AND SUB-PARAGRAPH (D) OF
PARAGRAPH 7 AND TO MODIFY SUB-PARAGRAPH (E) OF PARAGRAPH 6 ON THE
GROUND THAT THE PRACTICES ENJOINED BY THESE PROVISIONS OF THE DECREE
WERE NOT "HELD BY THE TRIAL COURT, IN ITS INSTRUCTIONS TO THE JURY, TO
CONSTITUTE A PROPER BASIS FOR THE RETURN OF A GENERAL VERDICT OF
GUILTY."  FORD ALSO MOVED THAT "AN ORDER BE ENTERED PURSUANT TO
PARAGRAPH 12  ...  THAT NOTHING THEREIN SHALL PRECLUDE THE MANUFACTURER
FROM ACQUIRING AND RETAINING OWNERSHIP OF AND/OR CONTROL OVER OR
INTEREST IN ANY FINANCE COMPANY  ... "  THE DISTRICT COURT DENIED THE
MOTIONS BY FORD AND CIT AND GRANTED THE GOVERNMENT'S MOTION FOR
EXTENSION OF THE PROHIBITION AGAINST AFFILIATION TO JANUARY 1, 1947. 
THE PRESENT APPEALS FOLLOWED.  ALTHOUGH THE PARTICULAR EXTENSION OF
PARAGRAPH 12 APPEALED FROM HAS EXPIRED, THE EQUITY SUIT AGAINST GENERAL
MOTORS HAS NOT YET BEEN SET DOWN FOR TRIAL AND THE GOVERNMENT'S MOTION
FOR A FURTHER EXTENSION HAS BEEN HELD IN ABEYANCE PENDING THE OUTCOME
OF THESE APPEALS.  IT IS NOT A MOOT QUESTION THEREFORE WHETHER THE
DISTRICT COURT PROPERLY GRANTED THE EXTENSION TO JANUARY 1, 1947.  SEE
SOUTHERN PACIFIC CO. V. INTERSTATE COMMERCE COMMISSION, 219 U.S. 433,
452; SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE COMMERCE COMMISSION,
219 U.S. 498, 514-16. 

THE RESTRAINTS IMPOSED AGAINST FORD BY SUB-PARAGRAPHS 6(E), 6(I),
6(K) AND 7(D) MUST SURVIVE THE OUTCOME OF THE CONVICTION AGAINST
GENERAL MOTORS IF THE LANGUAGE OF THE TRIAL JUDGE'S CHARGE TO THE JURY
IN THE CRIMINAL PROSECUTION OF GENERAL MOTORS CAN FAIRLY BE EQUATED
WITH THE LANGUAGE OF THOSE SUB-PARAGRAPHS.  IF, ON THE OTHER HAND, THE
JUDGE'S CHARGE FALLS SHORT OF HOLDING ILLEGAL WHAT THOSE SUB-PARAGRAPHS
PROSCRIBED, APPELLANTS ARE ENTITLED TO A SUSPENSION OF SUB-PARAGRAPHS
6(I), 6(K) AND 6(D) AND A MODIFICATION OF SUB-PARAGRAPH 6(E). 

FIRST, THEN, TO SUMMARIZE THE CONTENTS OF THESE PROVISIONS OF THE
DECREE.  FN2  SUB-PARAGRAPH 6(I) PRECLUDES FORD FROM ARRANGING WITH CIT
OR ANY OTHER FINANCE COMPANY "THAT AN AGENT OF THE MANUFACTURER AND AN
AGENT OF THE FINANCE COMPANY SHALL TOGETHER BE PRESENT WITH ANY DEALER
OR PROSPECTIVE DEALER FOR THE PURPOSE OF INFLUENCING THE DEALER TO
PATRONIZE" THE FINANCE COMPANY.  SUB-PARAGRAPH 6(K) PROVIDES THAT "THE
MANUFACTURER SHALL NOT RECOMMEND, ENDORSE OR ADVERTISE THE RESPONDENT
FINANCE COMPANY OR ANY OTHER FINANCE COMPANY OR COMPANIES TO ANY DEALER
OR TO THE PUBLIC  ...  "  SUB-PARAGRAPH 7(D), THE COUNTERPART OF 6(I),
IS DIRECTED AGAINST CIT. SUB-PARAGRAPH 6(E) RESTRAINS FORD FROM
ESTABLISHING "ANY PRACTICE, PROCEDURE OR PLAN FOR THE RETAIL OR
WHOLESALE FINANCING OF AUTOMOBILES FOR THE PURPOSE OF ENABLING
RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE COMPANY OR COMPANIES TO
ENJOY A COMPETITIVE ADVANTAGE IN OBTAINING THE PATRONAGE OF DEALERS"
NOT EQUALLY AVAILABLE TO ANY OTHER FINANCE COMPANY.  MODIFICATION OF
THIS SUB-PARAGRAPH IS ASKED ONLY TO THE EXTENT NECESSARY TO PERMIT THEM
FREEDOM TO ACT IN A MANNER OTHERWISE PERMISSIBLE, IF SUSPENSION OF SUB
PARAGRAPHS 6(I), 6(K) AND 7(D) IS GRANTED. 

THIS BRINGS US TO THE TRIAL JUDGE'S INSTRUCTIONS, WHICH, INSOFAR AS
RELEVANT, ARE FULLY SET FORTH BELOW.  FN3  THEIR PLAIN EFFECT IS TO
DRAW A LINE BETWEEN SUCH PRACTICES AS CANCELLATION OF A DEALER'S
CONTRACT, OR REFUSAL TO RENEW IT, OR DISCRIMINATION IN THE SHIPMENT OF
AUTOMOBILES, AS A MEANS OF INFLUENCING DEALERS TO USE GMAC, ALL OF
WHICH FALL WITHIN THE COMMON UNDERSTANDING OF "COERCION," AND OTHER
PRACTICES FOR WHICH "PERSUASION," "EXPOSITION" OR "ARGUMENT" ARE FAIR
CHARACTERIZATIONS.  AS A MERE MATTER OF INTERPRETING LANGUAGE, THE
GOVERNMENT HARDLY CHALLENGES THE FITNESS OF THE TERMS "PERSUASION,"
"EXPOSITION" OR "ARGUMENT," WHICH THE JURY WAS CHARGED WERE OPEN TO
GENERAL MOTORS, TO COVER ACTS SUCH AS ARRANGING FOR THE PRESENCE OF
AGENTS OF BOTH FORD AND CIT WITH A VIEW TO PUTTING THE CLAIMS OF CIT TO
A DEALER OR RECOMMENDING, ENDORSING, AND ADVERTISING CIT TO A DEALER. 
BUT ALL THESE ACTS WERE SPECIFICALLY FORBIDDEN FORD BY THE CONSENT
DECREE.  THE GOVERNMENT'S INSISTENCE IS THAT SINCE THE INDICTMENT
CHARGED THAT ADVERTISING, ENDORSEMENT AND RECOMMENDATION VIOLATED THE
SHERMAN LAW AND SINCE EVIDENCE WAS INTRODUCED TO SUPPORT THE CHARGE,
THE JURY MIGHT HAVE FOUND GENERAL MOTORS AND GMAC GUILTY OF "COERCION"
AT LEAST PARTLY ON THE BASIS OF THAT EVIDENCE.  BUT SUB-PARAGRAPH
12(A)(2) WAS NOT DESIGNED TO AUTHORIZE SPECULATIVE RECONSTRUCTION OF
THE JURY'S PROCESS IN REACHING ITS VERDICT.  IT PROVIDED A DEFINITE
STANDARD FOR ASCERTAINING WHAT RULES OF LAW WERE AT A FUTURE DATE TO BE
MADE BINDING ON A COMPETITOR OF FORD.  THE RULES WHICH THE TRIAL JUDGE
FORMULATED AGAINST GENERAL MOTORS WERE THEREAFTER TO BE THE RULES OF
LAW AGAINST FORD.  THE TRIAL JUDGE USED THE WORD "COERCION" TO
SUMMARIZE PRACTICES WHICH, IF THE JURY FOUND THEM TO EXIST, WOULD CALL
FOR A VERDICT AGAINST GENERAL MOTORS.  HE USED THE WORDS "PERSUASION,"
"EXPOSITION" AND "ARGUMENT" TO DESCRIBE CONDUCT WHICH, IN COMMON USAGE,
IS NOT "COERCION" AND THEREFORE WOULD NOT SUPPORT SUCH A VERDICT. 
NOTHING IN OTHER PORTIONS OF THE JUDGE'S CHARGE ERASES OR BLURS THIS
LINE OF DISTINCTION.  THE RESTRAINTS IMPOSED BY THE PARAGRAPHS
APPELLANTS SEEK TO HAVE SUSPENDED ARE PROPERLY DESCRIBED BY THE TERMS
"EXPOSITION," "PERSUASION" AND "ARGUMENT."  SO LONG AS THESE PARAGRAPHS
REMAIN IN EFFECT AND SO LONG AS THERE IS NO COMPARABLE DECREE ENJOINING
THEIR SUBSTANCE AGAINST GENERAL MOTORS AND GMAC, FORD AND CIT CANNOT DO
WITHOUT RISK OF VIOLATING THE CONSENT DECREE THAT WHICH GENERAL MOTORS
AND GMAC ARE FREE TO DO.  ONLY A LAWYER WHO IS OBTUSE OR RECKLESS WOULD
ADVISE FORD AND CIT THAT THEY COULD SUBJECT A DEALER TO "PERSUASION,"
"EXPOSITION" OR "ARGUMENT" WITHOUT THE HAZARD OF CONTEMPT OF THE
PARAGRAPHS UNDER DISCUSSION.  THUS THE CONDITIONS HAVE BEEN FULFILLED
WHICH ENTITLED FORD AND CIT TO SUSPENSION OF THE RESTRAINTS IMPOSED BY
THOSE TERMS OF THE DECREE. 

QUITE APART FROM FORD'S AND CIT'S CONSENT TO FOREGO THE OPPORTUNITIES
OUTLAWED BY SUB-PARAGRAPHS 6(E), (I), (K) AND 7(D), THE GOVERNMENT
URGES THAT A COURT OF EQUITY SHOULD REFUSE TO SUSPEND OR MODIFY THEM BY
CLAIMING THAT THE PRACTICES RESTRAINED BY THOSE PARAGRAPHS ARE IN ANY
EVENT ILLEGAL UNDER THE SHERMAN LAW.  BUT SINCE THIS HAS NEITHER BEEN
ADMITTED NOR PROVEN, AND SINCE ASCERTAINMENT OF ILLEGALITY UNDER THE
SHERMAN LAW NORMALLY DEPENDS ON THE CIRCUMSTANCES OF A PARTICULAR
SITUATION AND THE INFERENCES THEY YIELD, THE APPELLANTS HAVE A RIGHT TO
INSIST THAT, SO LONG AS INTERDICTION OF THESE PRACTICES HAS NOT BEEN
DECREED AGAINST GENERAL MOTORS, THE GOVERNMENT BE PUT TO ITS PROOF. 
THE LIFTING OF THE RESTRAINTS IMPOSED BY THE CONSENT DECREE DOES NOT,
OF COURSE, AFFECT THE LIABILITY OF FORD FOR ANY VIOLATIONS OF THE
SHERMAN LAW THAT THE GOVERNMENT MAY ESTABLISH IN COURT.  MOREOVER, TO
THE EXTENT THAT SUCH RESTRAINTS MAY AT SOME FUTURE DATE BE IMPOSED ON
GENERAL MOTORS, THEY WILL, BY SUB-PARAGRAPH 12A (3), EQUALLY FETTER
FORD. 

THERE REMAINS FOR CONSIDERATION THE QUESTION WHETHER THE DISTRICT
COURT PROPERLY EXTENDED THE PROHIBITION AGAINST AFFILIATION BETWEEN
FORD AND A FINANCE COMPANY.  THIS WAS THE SIXTH TIME THAT THE
GOVERNMENT HAD APPLIED FOR EXTENSION.  THE EQUITY SUIT BEGUN MORE THAN
SIX YEARS EARLIER HAD NOT YET BEEN BROUGHT TO TRIAL.  THE COURT WAS
FACED AT THE SAME TIME WITH A MOTION FOR SUSPENSION OF THE PROHIBITION
AGAINST AFFILIATION WHICH WAS MADE BY APPELLANTS UNDER THE EXPRESS
PROVISION OF PARAGRAPH 12 RESERVING THE RIGHT TO SUCH A MOTION.  THE
COURT DENIED THE APPELLANT'S MOTION AND GRANTED THE GOVERNMENT'S ON THE
GROUND, (1) THAT THE "TIME CLAUSE" OF PARAGRAPH 12 WAS SUBSIDIARY TO
THE "MAIN PURPOSE" OF PARAGRAPH 12 WHICH WAS "TO PROVIDE THAT THE TEST
OF THE PERMANENCY OF THE BAR AGAINST AFFILIATION WAS TO ABIDE THE
OUTCOME OF THE CIVIL ANTITRUST SUIT AGAINST GENERAL MOTORS
CORPORATION," AND (2) "THAT THE PURPOSE AND INTENT OF THE DECREE WILL
BE CARRIED OUT IF FORD MOTOR COMPANY IS GIVEN THE OPPORTUNITY AT ANY
FUTURE TIME TO PROPOSE A PLAN FOR THE ACQUISITION OF A FINANCE COMPANY,
AND TO MAKE A SHOWING THAT SUCH PLAN IS NECESSARY TO PREVENT FORD MOTOR
COMPANY FROM BEING PLACED AT A COMPETITIVE DISADVANTAGE  ...  " 

THE GOVERNMENT SEEKS TO SUPPORT THESE CONCLUSIONS BY INSISTING ON A
MECHANICAL APPLICATION OF THE DECISION IN CHRYSLER CORP. V. UNITED
STATES, 316 U.S. 556, INVOLVING A PARALLED PROHIBITION AGAINST
CHRYSLER.  THE CHRYSLER CASE WAS DECIDED ON JUNE 1, 1942.  IN THE
INTERVENING YEARS THE FACTORS OF THE PROBLEM HAVE DRASTICALLY CHANGED. 
MORE THAN NINE YEARS HAVE ELAPSED SINCE THE CRIMINAL PROSECUTION
AGAINST GENERAL MOTORS WAS CONCLUDED; WHAT WAS AT THE TIME OF THE
CHRYSLER DECISION A TWO-YEAR DELAY IN OBTAINING A CIVIL DECREE AGAINST
GENERAL MOTORS HAS NOW STRETCHED INTO A TEN-YEAR DELAY.  EVEN THEN, SIX
AND A HALF YEARS AGO, THIS COURT CHARACTERIZED THE DISTRICT COURT'S
FINDING THAT THE GOVERNMENT HAD PROCEEDED "DILIGENTLY AND
EXPEDITIOUSLY" AS "MARKEDLY GENEROUS."  316 U.S. AT 563.  AT THAT TIME
THE COURT ALSO FOUND SUPPORT FOR THE DISTRICT COURT IN THE FACT THAT
"THE COMPLETE CESSATION OF THE MANUFACTURE OF NEW AUTOMOBILES AND LIGHT
TRUCKS HAS DRASTICALLY MINIMIZED THE SIGNIFICANCE OF THE COMPETITIVE
FACTOR."  ID. AT 564.  BUT CIRCUMSTANCES THAT WERE FOUND EXTENUATING ON
BEHALF OF THE GOVERNMENT TWO YEARS AFTER THE ENTRY OF THE DECREE ARE
HARDLY COMPELLING TEN YEARS AFTERWARD.  WHILE A SHOWING THAT
CONTINUANCE OF THE BAR AGAINST AFFILIATION WOULD CAUSE COMPETITIVE
DISADVANTAGE MAY NOT, AS A PRACTICAL MATTER, UNREASONABLY HAVE BEEN
CALLED FOR AT A TIME WHEN COMPETITION IN THE INDUSTRY WAS COMPLETELY
SUSPENDED DURING THE INDETERMINATE PERIOD OF WAR, THE RESUMPTION OF
FULL-SCALE COMPETITION MAKES SUCH A SHOWING UNNECESSARY.  AND THIS IS
UNAFFECTED BY THE FACT THAT AUTOMOBILES ARE STILL IN SHORT SUPPLY.  THE
APPELLANTS AGREED FOR A LIMITED TERM TO REFRAIN FROM PURSUING CONDUCT
WHICH, IN THE ABSENCE OF AN ADJUDICATION THAT IT WAS ILLEGAL, THEY WERE
OTHERWISE FREE TO PURSUE AND WHICH GENERAL MOTORS HAS ALWAYS BEEN FREE
TO PURSUE.  THERE HAS BEEN NO SUCH ADJUDICATION AND SUCCESSIVE
EXTENSIONS OF THE TERM HAVE EXPIRED.  THE CRUCIAL FACT NOW IS NOT THE
DEGREE OF ACTUAL DISADVANTAGE BUT THE PERSISTENCE OF AN INEQUALITY
AGAINST WHICH THE APPELLANTS HAD SECURED THE GOVERNMENT'S PROTECTION. 
YET THE GOVERNMENT SEEKS A CHANGE IN THE EXPRESS TERMS OF THE DECREE
WHICH WOULD PERPETUATE THAT INEQUALITY.  THE GOVERNMENT HAS NOT
SUSTAINED THE BURDEN OF SHOWING GOOD CAUSE WHY A COURT OF EQUITY SHOULD
GRANT RELIEF FROM AN UNDERTAKING WELL UNDERSTOOD AND CAREFULLY
FORMULATED.  IF THE GOVERNMENT SEEKS TO OUTLAW POSSIBLE ARRANGEMENTS BY
FORD WITH A FINANCE CORPORATION, IT MUST ESTABLISH ITS CASE IN COURT
AGAINST FORD AS AGAINST GENERAL MOTORS AND NOT DRAW ON A CONSENT WHICH
BY ITS VERY TERMS IS NOT AVAILABLE. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  "12.  THE RESPONDENT FINANCE COMPANY SHALL NOT PAY TO ANY
AUTOMOBILE MANUFACTURING COMPANY AND THE MANUFACTURER SHALL NOT OBTAIN
FROM ANY FINANCE COMPANY ANY MONEY OR OTHER THING OF VALUE AS A BONUS
OR COMMISSION ON ACCOUNT OF RETAIL TIME SALES PAPER ACQUIRED BY THE
FINANCE COMPANY FROM DEALERS OF THE MANUFACTURER.  THE MANUFACTURER
SHALL NOT MAKE ANY LOAN TO OR PURCHASE THE SECURITIES OF RESPONDENT
FINANCE COMPANY OR ANY OTHER FINANCE COMPANY, AND IF IT SHALL PAY ANY
MONEY TO RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE COMPANY WITH
THE PURPOSE OR EFFECT OF INDUCING OR ENABLING SUCH FINANCE COMPANY TO
OFFER TO THE DEALERS OF THE MANUFACTURER A LOWER FINANCE CHARGE THAN IT
WOULD OFFER IN THE ABSENCE OF SUCH PAYMENT, IT SHALL OFFER IN WRITING
TO MAKE, AND IF SUCH OFFER IS ACCEPTED IT SHALL MAKE, PAYMENT UPON
SUBSTANTIALLY SIMILAR BASES, TERMS AND CONDITIONS TO EVERY OTHER
FINANCE COMPANY OFFERING SUCH LOWER FINANCE CHARGE; PROVIDED, HOWEVER,
THAT NOTHING IN THIS PARAGRAPH CONTAINED SHALL BE CONSTRUED TO PROHIBIT
THE MANUFACTURER FROM ACQUIRING NOTES, BONDS, COMMERCIAL PAPER, OR
OTHER EVIDENCE OF INDEBTEDNESS OF RESPONDENT FINANCE COMPANY OR ANY
OTHER FINANCE COMPANY IN THE OPEN MARKET. 

"IT IS AN EXPRESS CONDITION OF THIS DECREE THAT NOTWITHSTANDING THE
PROVISIONS OF THE PRECEDING PARAGRAPH OF THIS PARAGRAPH 12 AND OF ANY
OTHER PROVISIONS OF THIS DECREE, IF AN EFFECTIVE FINAL ORDER OR DECREE
NOT SUBJECT TO FURTHER REVIEW SHALL NOT HAVE BEEN ENTERED ON OR BEFORE
JANUARY 1, 1941, REQUIRING GENERAL MOTORS CORPORATION PERMANENTLY TO
DIVEST ITSELF OF ALL OWNERSHIP AND CONTROL OF GENERAL MOTORS ACCEPTANCE
CORPORATION AND OF ALL INTEREST THEREIN, THEN AND IN THAT EVENT,
NOTHING IN THIS DECREE SHALL PRECLUDE THE MANUFACTURER FROM ACQUIRING
AND RETAINING OWNERSHIP OF AND/OR CONTROL OVER OR INTEREST IN ANY
FINANCE COMPANY, OR FROM DEALING WITH SUCH FINANCE COMPANY AND WITH THE
DEALERS IN THE MANNER PROVIDED IN THIS DECREE OR IN ANY ORDER OF
MODIFICATION OR SUSPENSION THEREOF ENTERED PURSUANT TO PARAGRAPH 12A. 
THE COURT, UPON APPLICATION OF THE RESPONDENTS OR ANY OF THEM, WILL
ENTER AN ORDER OR DECREE TO THAT EFFECT AT THE FOOT OF THIS DECREE, AND
THE RIGHT OF ANY RESPONDENT HEREIN TO MAKE THE APPLICATION AND TO
OBTAIN SUCH ORDER OR DECREE IS EXPRESSLY CONCEDED AND GRANTED. 

"12A.  IT IS A FURTHER EXPRESS CONDITION OF THIS DECREE THAT: 

"(1)  IF THE PROCEEDING NOW PENDING IN THIS COURT AGAINST GENERAL
MOTORS CORPORATION INSTITUTED BY THE FILING OF AN INDICTMENT BY THE
GRAND JURY ON MAY 27, 1938, NO. 1039, OR ANY FURTHER PROCEEDING
INITIATED BY REINDICTMENT OF GENERAL MOTORS CORPORATION FOR THE SAME
ALLEGED ACTS, IS FINALLY TERMINATED IN ANY MANNER OR WITH ANY RESULT
EXCEPT BY A JUDGMENT OF CONVICTION AGAINST GENERAL MOTORS CORPORATION
AND GENERAL MOTORS ACCEPTANCE CORPORATION THEREIN, THEN AND IN THAT
EVENT EVERY PROVISION OF THIS DECREE EXCEPT THOSE CONTAINED IN THIS SUB
PARAGRAPH (1) OF THIS PARAGRAPH 12A OF THIS DECREE, SHALL FORTHWITH
BECOME INOPERATIVE AND BE SUSPENDED, UNTIL SUCH TIME AS RESTRAINTS AND
REQUIREMENTS IN TERMS SUBSTANTIALLY IDENTICAL WITH THOSE IMPOSED HEREIN
SHALL BE IMPOSED UPON GENERAL MOTORS CORPORATION AND GENERAL MOTORS
ACCEPTANCE CORPORATION AND THEIR SUBSIDIARIES EITHER (A) BY CONSENT
DECREE, OR (B) BY FINAL DECREE OF A COURT OF COMPETENT JURISDICTION NOT
SUBJECT TO FURTHER REVIEW, OR (C) BY DECREE OF SUCH COURT WHICH
ALTHOUGH SUBJECT TO FURTHER REVIEW CONTINUES EFFECTIVE.  THE COURT
RESERVES JURISDICTION UPON APPLICATION OF ANY PARTY TO ENTER ORDERS AT
THE FOOT OF THIS DECREE IN ACCORDANCE WITH THE PROVISIONS OF THIS
PARAGRAPH. 

"(2)  A GENERAL VERDICT OF GUILTY RETURNED AGAINST GENERAL MOTORS
CORPORATION IN SAID PROCEEDING, FOLLOWED BY THE ENTRY OF JUDGMENT
THEREON, SHALL BE DEEMED TO BE A DETERMINATION OF THE ILLEGALITY OF ANY
AGREEMENT, ACT OR PRACTICE OF GENERAL MOTORS CORPORATION WHICH IS HELD
BY THE TRIAL COURT, IN ITS INSTRUCTIONS TO THE JURY, TO CONSTITUTE A
PROPER BASIS FOR THE RETURN OF A GENERAL VERDICT OF GUILTY.  A SPECIAL
VERDICT OF GUILTY RETURNED AGAINST GENERAL MOTORS CORPORATION IN SAID
PROCEEDING, FOLLOWED BY THE ENTRY OF JUDGMENT THEREON, SHALL BE DEEMED
TO CONSTITUTE A DETERMINATION OF THE ILLEGALITY OF ANY AGREEMENT, ACT
OR PRACTICE OF GENERAL MOTORS CORPORATION WHICH IS THE SUBJECT OF SUCH
SPECIAL VERDICT OF GUILTY.  A PLEA OF GUILTY OR NOLO CONTENDERE BY
GENERAL MOTORS CORPORATION, FOLLOWED BY THE ENTRY OF JUDGMENT OF
CONVICTION THEREON, SHALL BE DEEMED TO BE A DETERMINATION OF THE
ILLEGALITY OF ANY AGREEMENT, ACT OR PRACTICE WHICH IS THE SUBJECT
MATTER OF SUCH PLEA.  THE DETERMINATION, IN THE MANNER PROVIDED IN THIS
CLAUSE, OF THE ILLEGALITY OF ANY AGREEMENT, ACT OR PRACTICE OF GENERAL
MOTORS CORPORATION SHALL (FOR THE PURPOSES OF CLAUSE (3) OF THIS
PARAGRAPH) BE CONSIDERED AS THE EQUIVALENT OF A DECREE RESTRAINING THE
PERFORMANCE BY GENERAL MOTORS CORPORATION OF SUCH AGREEMENT, ACT OR
PRACTICE, UNLESS OR UNTIL SUCH JUDGMENT IS REVERSED, OR UNLESS SUCH
DETERMINATION IS BASED, IN WHOLE OR IN PART, (A) UPON THE OWNERSHIP BY
GENERAL MOTORS CORPORATION OF GENERAL MOTORS ACCEPTANCE CORPORATION, OR
(B) UPON THE PERFORMANCE BY GENERAL MOTORS CORPORATION OF SUCH
AGREEMENT, ACT OR PRACTICE IN COMBINATION WITH SOME OTHER AGREEMENT,
ACT OR PRACTICE WITH WHICH THE RESPONDENTS ARE NOT CHARGED IN THE
INDICTMENT HERETOFORE FILED AGAINST THEM BY THE GRAND JURY ON MAY 27,
1938, NO. 1041; 

"(3)  AFTER THE ENTRY OF A CONSENT DECREE AGAINST GENERAL MOTORS
CORPORATION, OR AFTER THE ENTRY OF A LITIGATED DECREE, NOT SUBJECT TO
FURTHER REVIEW, AGAINST GENERAL MOTORS CORPORATION BY A COURT OF THE
UNITED STATES OF COMPETENT JURISDICTION, OR AFTER THE ENTRY OF A
JUDGMENT OF CONVICTION AGAINST GENERAL MOTORS CORPORATION IN THE
PROCEEDING HEREINBEFORE REFERRED TO, OR AFTER JANUARY 1, 1940(WHICHEVER
DATE IS EARLIEST), THE COURT UPON APPLICATION OF ANY RESPONDENT FROM
TIME TO TIME WILL ENTER ORDERS: 

"(I)  SUSPENDING EACH OF THE RESTRAINTS AND REQUIREMENTS CONTAINED IN
SUB-PARAGRAPHS (D) TO (F) AND (H) TO (1), INCLUSIVE, OF PARAGRAPH 6 OF
THIS DECREE TO THE EXTENT THAT IT IS NOT THEN IMPOSED, AND UNTIL IT
SHALL BE IMPOSED, IN SUBSTANTIALLY IDENTICAL TERMS, UPON GENERAL MOTORS
CORPORATION AND ITS SUBSIDIARIES, AND SUSPENDING EACH OF THE RESTRAINTS
AND REQUIREMENTS CONTAINED IN SUB-PARAGRAPHS (A), (C) AND (D) OF
PARAGRAPH 7 OF THIS DECREE TO THE EXTENT THAT IT IS NOT IMPOSED AND
UNTIL IT SHALL BE IMPOSED IN SUBSTANTIALLY IDENTICAL TERMS, UPON
GENERAL MOTORS ACCEPTANCE CORPORATION AND ITS SUBSIDIARIES, EITHER (W)
BY CONSENT DECREE, OR (X) BY FINAL DECREE OF A COURT OF COMPETENT
JURISDICTION NOT SUBJECT TO FURTHER REVIEW, OR (Y) BY DECREE OF SUCH
COURT WHICH, ALTHOUGH SUBJECT TO FURTHER REVIEW, CONTINUES EFFECTIVE,
OR (Z) BY THE EQUIVALENT OF SUCH A DECREE AS DEFINED IN CLAUSE (2) OF
THIS PARAGRAPH; PROVIDED, HOWEVER, THAT IF THE PROVISIONS OF A CONSENT
OR LITIGATED DECREE AGAINST GENERAL MOTORS CORPORATION AND ITS
SUBSIDIARIES CORRESPONDING TO SUB-PARAGRAPHS (J) AND (K) OF PARAGRAPH 6
OF THIS DECREE ARE DIFFERENT FROM SAID SUB-PARAGRAPHS OF THIS DECREE,
THEN UPON APPLICATION OF THE RESPONDENTS ANY PROVISION OR PROVISIONS OF
SAID SUB-PARAGRAPHS WILL BE MODIFIED SO AS TO CONFORM TO THE
CORRESPONDING PROVISIONS OF SUCH GENERAL MOTORS CORPORATION DECREE; 

"(II)  SUSPENDING EACH OF THE RESTRAINTS AND REQUIREMENTS CONTAINED
IN THE REMAINING SUB-PARAGRAPHS (A), (B), (C) AND (G) OF PARAGRAPH 6 TO
THE EXTENT THAT IT IS NOT THEN IMPOSED, AND UNTIL IT SHALL BE IMPOSED,
UPON GENERAL MOTORS CORPORATION AND ITS SUBSIDIARIES IN ANY MANNER
SPECIFIED IN THE FOREGOING SUB-CLAUSE (I) OF CLAUSE (3), IF ANY
RESPONDENT SHALL SHOW TO THE SATISFACTION OF THE COURT THAT GENERAL
MOTORS CORPORATION OR ITS SUBSIDIARIES IS PERFORMING ANY AGREEMENT, ACT
OR PRACTICE PROHIBITED TO THE MANUFACTURER BY SAID REMAINING SUB
PARAGRAPHS, AND SUSPENDING EACH OF THE RESTRAINTS AND REQUIREMENTS
CONTAINED IN SUB-PARAGRAPH (B) OF PARAGRAPH 7 OF THIS DECREE TO THE
EXTENT THAT IT IS NOT IMPOSED, AND UNTIL IT SHALL BE IMPOSED, UPON
GENERAL MOTORS ACCEPTANCE CORPORATION AND ITS SUBSIDIARIES IN ANY SAID
MANNER, IF ANY RESPONDENT SHALL SHOW TO THE SATISFACTION OF THE COURT
THAT GENERAL MOTORS ACCEPTANCE CORPORATION IS PERFORMING ANY AGREEMENT,
ACT OR PRACTICE PROHIBITED TO RESPONDENT FINANCE COMPANY BY SAID SUB
PARAGRAPH (B) OF PARAGRAPH    "(III)  SUSPENDING THE RESTRAINTS OF SUB
PARAGRAPH (D) OF PARAGRAPH 7 OF THIS DECREE AS TO RESPONDENT FINANCE
COMPANY, IN THE EVENT THAT THE RESTRAINTS OF SUB-PARAGRAPH (I) OF
PARAGRAPH 6 OF THIS DECREE ARE SUSPENDED AS TO THE MANUFACTURER. 

"(4)  THE RIGHT OF THE RESPONDENTS OR ANY OF THEM TO MAKE ANY
APPLICATION FOR SUSPENSION OF ANY PROVISION OF THIS DECREE IN
ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH AND TO OBTAIN SUCH
RELIEF IS HEREBY EXPRESSLY GRANTED. 

"IN THE EVENT THAT AT ANY TIME PRIOR TO THE DATE WHEN GENERAL MOTORS
CORPORATION HAS PERMANENTLY DIVESTED ITSELF OF ALL OWNERSHIP AND
CONTROL OF AND INTEREST IN GENERAL MOTORS ACCEPTANCE CORPORATION,
GENERAL MOTORS ACCEPTANCE CORPORATION SHALL MAKE AVAILABLE TO DEALERS
OF GENERAL MOTORS CORPORATION IN ANY AREA A FINANCE CHARGE, ON ALL OR
ANY CLASS OF AUTOMOBILES SOLD BY DEALERS OF GENERAL MOTORS CORPORATION,
LESS THAN THE FINANCE CHARGE THEN GENERALLY AVAILABLE TO DEALERS OF THE
MANUFACTURER WITHIN SUCH AREA, NOTHING IN THIS DECREE SHALL PREVENT THE
MANUFACTURER FROM MAKING, AND THE MANUFACTURER MAY MAKE, ADJUSTMENTS,
ALLOWANCES OR PAYMENTS TO OR WITH ALL OF ITS DEALERS IN SUCH AREA WHO
AGREE TO REDUCE TO AN AMOUNT APPROVED BY THE MANUFACTURER (BUT NOT LESS
THAN THAT THEN MADE AVAILABLE BY GENERAL MOTORS ACCEPTANCE CORPORATION)
THE FINANCE CHARGES WHICH SUCH DEALERS OF THE MANUFACTURER IN SUCH AREA
RECEIVE FROM ANY CLASS OF RETAIL PURCHASERS OF AUTOMOBILES, PROVIDED
THAT SUCH ADJUSTMENTS, ALLOWANCES OR PAYMENTS SHALL NOT DISCRIMINATE
AMONG SUCH DEALERS IN SUCH AREA." 

FN2  THEIR FULL TEXT IS AS FOLLOWS: 

"(6.)(E)  EXCEPT AS PROVIDED BY SUB-PARAGRAPHS (J) AND (K) OF THIS
PARAGRAPH 6, 

"(I)  THE MANUFACTURER SHALL NOT ESTABLISH ANY PRACTICE, PROCEDURE OR
PLAN FOR THE RETAIL OR WHOLESALE FINANCING OF AUTOMOBILES FOR THE
PURPOSE OF ENABLING RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE
COMPANY OR COMPANIES TO ENJOY A COMPETITIVE ADVANTAGE IN OBTAINING THE
PATRONAGE OF DEALERS THROUGH ANY SERVICE, FACILITY OR PRIVILEGE
EXTENDED BY THE MANUFACTURER PURSUANT TO SUCH PRACTICE, PROCEDURE OR
PLAN IF SUCH SERVICE, FACILITY OR PRIVILEGE OR A SERVICE, FACILITY OR
PRIVILEGE CORRESPONDING THERETO, IS NOT MADE AVAILABLE UPON ITS WRITTEN
REQUEST TO ANY OTHER FINANCE COMPANY UPON SUBSTANTIALLY SIMILAR TERMS
AND CONDITIONS; AND 

"(II)  SO LONG AS THE MANUFACTURER SHALL CONTINUE TO AFFORD ANY
SERVICE, FACILITY OR PRIVILEGE NOT OTHERWISE SPECIFICALLY REFERRED TO
IN THIS DECREE TO RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE
COMPANY OR COMPANIES, IT SHALL NOT REFUSE TO AFFORD SIMILAR OR
CORRESPONDING SERVICES, FACILITIES OR PRIVILEGES UPON SUBSTANTIALLY
SIMILAR TERMS AND CONDITIONS AND UPON WRITTEN REQUEST TO ANY OTHER
FINANCE COMPANY FOR THE PURPOSE OF GIVING RESPONDENT FINANCE COMPANY OR
ANY OTHER FINANCE COMPANY OR COMPANIES A COMPETITIVE ADVANTAGE IN
OBTAINING THE PATRONAGE OF DEALERS; PROVIDED THAT IT SHALL NOT BE A
VIOLATION OF THIS DECREE FOR THE MANUFACTURER TO AFFORD SUCH SERVICE,
FACILITY OR PRIVILEGE ONLY TO REGISTERED FINANCE COMPANIES AS DEFINED
IN SUB-PARAGRAPH (J) OF THIS PARAGRAPH 6 OR ONLY TO A FINANCE COMPANY
DESIGNATED IN WRITING TO THE MANUFACTURER BY THE DEALER OR PROSPECTIVE
DEALER; 

"THE WRITTEN REQUEST SHALL SPECIFY IN EACH INSTANCE THE PARTICULAR
SERVICE, FACILITY OR PRIVILEGE DESIRED; 

     .         .         .         .         . 

"(6.)(I)  THE MANUFACTURER SHALL NOT, EXCEPT IN EACH INSTANCE UPON
WRITTEN REQUEST OF THE DEALER OR PROSPECTIVE DEALER, ARRANGE OR AGREE
WITH RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE COMPANY THAT AN
AGENT OF THE MANUFACTURER AND AN AGENT OF THE FINANCE COMPANY SHALL
TOGETHER BE PRESENT WITH ANY DEALER OR PROSPECTIVE DEALER FOR THE
PURPOSE OF INFLUENCING THE DEALER TO PATRONIZE RESPONDENT FINANCE
COMPANY OR SUCH OTHER FINANCE COMPANY; PROVIDED, HOWEVER, THAT IT SHALL
NOT BE A VIOLATION OF THIS DECREE FOR THE MANUFACTURER TO ASSIST ANY
DEALER OR PROSPECTIVE DEALER, BECAUSE OF SAID DEALER'S OR PROSPECTIVE
DEALER'S FINANCIAL SITUATION OR REQUIREMENTS, BY JOINT CONFERENCE WITH
HIM AND A REPRESENTATIVE OF A PARTICULAR FINANCE COMPANY, TO OBTAIN
SPECIAL FACILITIES OR SERVICES (SUCH TERM NOT INCLUDING ONLY THE
FINANCING OF THE SHIPMENT OR DELIVERY OF AUTOMOBILES TO SUCH DEALER OR
PROSPECTIVE DEALER AND/OR ONLY THE PURCHASE OR ACQUISITION OF RETAIL
TIME SALES PAPER FROM HIM IN THE REGULAR COURSE OF BUSINESS) FROM THE
PARTICULAR FINANCE COMPANY AND, IN PART CONSIDERATION OF SUCH SPECIAL
FACILITIES OR SERVICES, FOR SUCH DEALER OR PROSPECTIVE DEALER TO
ARRANGE TO DO BUSINESS WITH SUCH FINANCE COMPANY ON AN EXCLUSIVE BASIS
FOR A REASONABLE PERIOD OF TIME AS MAY BE AGREED BETWEEN THEM; 

     .         .   .         .         . 

"(6.)(K)  THE MANUFACTURER SHALL NOT RECOMMEND, ENDORSE OR ADVERTISE
THE RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE COMPANY OR
COMPANIES TO ANY DEALER OR TO THE PUBLIC; PROVIDED, HOWEVER, THAT
NOTHING IN THIS DECREE CONTAINED SHALL PREVENT THE MANUFACTURER IN GOOD
FAITH: 

"(1) FROM ADOPTING FROM TIME TO TIME A PLAN OR PLANS OF FINANCING
RETAIL SALES OF NEW AUTOMOBILES MADE BY THE MANUFACTURER OR FROM TIME
TO TIME WITHDRAWING OR MODIFYING THE SAME; 

"(2)  FROM RECOMMENDING TO ITS DEALERS THE USE OF SUCH PLANS; 

"(3)  FROM ADVERTISING TO THE PUBLIC AND RECOMMENDING THE USE OF SUCH
PLANS. 

     .         .         .         .         . 

"7.  THE RESPONDENT FINANCE COMPANY: 

     .         .      .         .         . 

"(D)  SHALL NOT, EXCEPT UPON WRITTEN REQUEST OF THE DEALER OR
PROSPECTIVE DEALER, ARRANGE OR AGREE WITH THE MANUFACTURER THAT AN
AGENT OF THE MANUFACTURER AND AN AGENT OF RESPONDENT FINANCE COMPANY
SHALL TOGETHER BE PRESENT WITH ANY DEALER OR PROSPECTIVE DEALER FOR THE
PURPOSE OF INFLUENCING THE DEALER OR PROSPECTIVE DEALER TO PATRONIZE
RESPONDENT FINANCE COMPANY; PROVIDED, HOWEVER, THAT IT SHALL NOT BE A
VIOLATION OF THIS DECREE FOR RESPONDENT FINANCE COMPANY BY JOINT
CONFERENCE WITH A DEALER OR PROSPECTIVE DEALER AND A REPRESENTATIVE OF
THE MANUFACTURER TO AGREE TO FURNISH TO SUCH DEALER OR PROSPECTIVE
DEALER, BECAUSE OF HIS FINANCIAL SITUATION OR REQUIREMENTS, SPECIAL
FACILITIES OR SERVICES (SUCH TERM NOT INCLUDING ONLY THE FINANCING OF
THE SHIPMENT OR DELIVERY OF AUTOMOBILES TO SUCH DEALER OR PROSPECTIVE
DEALER AND/OR ONLY THE PURCHASE OR ACQUISITION OF RETAIL TIME SALES
PAPER FROM HIM IN THE REGULAR COURSE OF BUSINESS) AND IN PART
CONSIDERATION OF SUCH SPECIAL FACILITIES OR SERVICES TO ARRANGE FOR THE
DEALER OR PROSPECTIVE DEALER TO DO BUSINESS WITH RESPONDENT FINANCE
COMPANY ON AN EXCLUSIVE BASIS FOR SUCH REASONABLE PERIOD OF TIME AS MAY
BE AGREED BETWEEN THEM." 

FN3  "IT IS NOT UNREASONABLE FOR THE GENERAL MOTORS COMPANY TO HAVE A
FINANCE COMPANY.  IT IS NOT UNREASONABLE FOR THE GENERAL MOTORS COMPANY
TO HAVE CONTRACTS WITH ITS DEALERS FOR A YEAR OR TO HAVE A CANCELLATION
CLAUSE IN THEM.  THEY HAVE A PERFECT RIGHT TO HAVE A FINANCE COMPANY
AND TO RECOMMEND ITS USE.  THEY HAVE A PERFECT RIGHT TO CANCEL A
CONTRACT FROM THEIR DEALER AS LONG AS THEY ARE NOT PERFORMING ANY
UNREASONABLE ACT. 

"THEY HAVE A RIGHT TO DETERMINE WHOM THEY WILL SELL THEIR CARS TO,
AND THEY HAVE A RIGHT TO DETERMINE WHOM THEY WILL NOT SELL THEIR CARS
TO BECAUSE CARS ARE THEIR PRODUCT AND THEY ARE THEIR PROPERTY AND NO
LAW COMPELS THEM TO SELL THEM TO ANY MAN THEY DON'T WANT TO SELL THEM
TO; BUT THAT IS NOT THE CHARGE IN THIS CASE.  THE CHARGE IS NOT THAT BY
HAVING DIFFICULTY IN CONTRACTS IN ITSELF, THESE DEFENDANTS DID ANYTHING
WRONG; IT IS NOT CHARGED HERE THAT TO RECOMMEND THE USE OF GMAC THERE
IS ANYTHING WRONG; IT IS NOT CHARGED HERE THAT CANCELLATION FOR CAUSE
IS ANYTHING WRONGFUL; BUT THE GOVERNMENT'S THEORY IN THIS CASE IS
IRRESPECTIVE OF THESE CONTRACTS AND INDEPENDENT OF THEM AND OUTSIDE OF
THEM THE CONDITIONS HAVE BEEN ASSERTED THAT THEY, UNDER THE DESIGNATION
OF THOSE TO THE GRAND JURORS UNKNOWN, THE ACTIONS HAVE BEEN SUCH THAT
THE POSSIBILITY, THE ABILITY TO CANCEL, THE ABILITY TO REFUSE TO RENEW
A CONTRACT, HAVE BEEN USED AS CLUBS UPON THE DEALERS TO FORCE THEM TO
USE GMAC AND THAT THESE ACTS THAT ARE COMPLAINED OF WERE ACTS THAT WERE
USED TO FORCE THE DEALERS TO USE GMAC, THE GOVERNMENT INSISTS THAT
THESE ACTS INSPIRED BY THAT MOTIVE HAVE BEEN SUCH AS TO RESULT IN
CANCELLATIONS THAT OTHERWISE WOULD NOT HAVE OCCURRED; IN
DISCRIMINATIONS THAT WOULD NOT OTHERWISE HAVE OCCURRED IN THE SHIPMENT
OF CARS IN INTERSTATE COMMERCE AND IN REFUSALS TO RENEW THAT WOULD NOT
OTHERWISE HAVE OCCURRED, AND IN THE USE OF GMAC WHEN IT OTHERWISE WOULD
NOT HAVE BEEN USED. 

"IN OTHER WORDS, THE GOVERNMENT HAS NO RIGHT TO COMPLAIN, AND IT MAY
NOT COMPLAIN OF THE DEFENDANTS' RIGHT TO LIMIT ITS SALES OF CARS TO
PERSONS WHOM IT MAY SELECT, ITS RIGHT TO DETERMINE WHO IT SHALL SELL
TO, ITS RIGHTS TO DETERMINE UPON WHAT TERMS IT WILL SELL, ITS RIGHT TO
PICK ITS OWN DEALERS. 

"IT CAN ONLY COMPLAIN IF THE DEFENDANTS DO SUFFICIENT OF THESE ACTS
CHARGED IN THE INDICTMENT AS CONSTITUTE DURESS UPON THE DEALER TO
ACCOMPLISH A RESULT THAT WOULD HAVE OTHERWISE NOT HAVE BEEN
ACCOMPLISHED, AND TO MAKE A DEALER DO SOMETHING THAT HE WOULD NOT HAVE
DONE OF HIS OWN FREE WILL. 

"THAT, ALMOST, IS THE QUESTION IN THIS CASE - WHETHER THE DEALER
COULD ACT AS A FREE MAN; WHETHER HE COULD ACT OF HIS OWN FREE WILL. 

"THE DEFENDANTS SAY: 

"'WE NEVER IMPOSED ANY RESTRICTIONS UPON THAT FREEDOM OF ACTION.' 

"THE GOVERNMENT SAYS IT DID AND THERE IS THAT QUESTION.  IF IT DID -
IF THE DEFENDANTS DID THAT SORT OF THING - AND IF IT RESULTED IN AN
UNREASONABLE RESTRICTION AND UNREASONABLE RESTRAINT OF INTERSTATE
COMMERCE, THEN YOU WOULD HAVE A RIGHT TO FIND THEM GUILTY. 

"IF THEY DID NOT DO IT, THIS LAWSUIT IS AT AN END, AND THAT IS A
QUESTION WHICH YOU HAVE GOT TO DECIDE. 

"YOU KNOW, YOU HAVE HEARD OF THE TERMS: 

"EXPOSITION; 

"PERSUASION; 

"ARGUMENT; 

"COERCION. 

"THEY ARE DIFFERENT STEPS.  THEY ARE GRADUATED STEPS THAT I SUPPOSE
EVERY SALESMAN GOES THROUGH, EXCEPT PERHAPS THE LAST. 

"IN EXPOSITION ONE MAY EXPOUND THE MERITS OF THAT WHICH HE HAS TO
SELL; HE MAY EXPLAIN ITS NATURE AND BY HIS EXPOSITION MAKE A CLEAR
PICTURE OF WHAT HE HAS. 

"BY PERSUASION HE MAY ENDEAVOR TO PERSUADE THE PERSON TO WHOM HE IS
TALKING TO ACCEPT THAT WHICH HE HAS TO OFFER. 

"THERE IS LITTLE ADVANCEMENT IN HIS FURTHER PROGRESS, TO ARGUE. 

"PERSUASION MEANS SOMETHING SOFTER THAN ARGUMENT, PERHAPS, BUT HE MAY
ARGUE WITH HIM, AND ARGUE WITH HIM THE RESPECTIVE MERITS OF HIS PRODUCT
AND OTHER PRODUCTS BEING OFFERED TO THE PERSON TO WHOM HE MAKES HIS
OFFER. 

"ALL OF THESE ARE PROPER. 

"HE MAY NOT GO BEYOND THAT AND USE SOMETHING THAT IS WITHIN HIS POWER
TO USE AS A CLUB TO COERCE THE PERSON TO ACCEPT THAT WHICH HE HAS TO
OFFER. 

     .         .         .        .         . 

"YOU MUST REMEMBER THAT, AFTER ALL, THIS COERCION, IF YOU FIND THAT
COERCION EXISTS, THEN THE ULTIMATE QUESTION IS; HAS THAT RESULTED IN
UNREASONABLE RESTRAINT OF INTERSTATE COMMERCE?  AND THAT IS A QUESTION
FOR YOU TO DETERMINE FROM ALL OF THE EVIDENCE." 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE BLACK, DISSENTING. 

THE COURT APPEARS TO ACCEPT THE ARGUMENT OF APPELLANTS THAT THIS
CONSENT DECREE MUST BE TREATED AS THOUGH IT WERE A CONTRACT BETWEEN
PRIVATE PERSONS FOR PURCHASE OF AN AUTOMOBILE.  BUT A CONSENT DECREE IS
NOT A CONTRACT.  A CONSENT DECREE IN AN ANTITRUST PROCEEDING LIKE A
DECREE ENTERED AFTER A CONTEST MUST BE TREATED AS A JUDICIAL
DETERMINATION AND ORDER MADE IN THE PUBLIC INTEREST.  UNITED STATES V.
SWIFT & CO., 286 U.S. 106, 114-115.  THAT MEANS, I WOULD SUPPOSE, THAT
BEFORE THE RESTRAINTS IN THIS DECREE ARE LIFTED, A SHOWING SHOULD BE
MADE THAT SUCH ACTION WOULD NOT TEND TO GENERATE FUTURE VIOLATIONS OF
THE ANTITRUST LAWS.  NO SUCH SHOWING HAS BEEN MADE HERE.  AS I SEE THE
CASE, MODIFICATION OF THE DECREE UNDER THE CIRCUMSTANCES SHOWN WILL AID
AND ENCOURAGE DESTRUCTION OF COMPETITION CONTRARY TO LAW.  FOR SO FAR
AS EXISTING EFFECTIVE COURT RESTRAINTS ARE CONCERNED, MODIFICATION WILL
GIVE FORD FREEDOM TO HELP THE APPELLANT FINANCE COMPANIES CRUSH THEIR
COMPETITORS. 

EVEN THOUGH FORD AND COMMERCIAL INVESTMENT TRUST CORPORATION
(C.I.T.)  MADE NO ADMISSION OF THE FACTS CHARGED IN THE ORIGINAL
COMPLAINT, THE UNDENIED ALLEGATIONS OF THE BILL WERE SUFFICIENT TO
SUPPORT THE DECREE'S PROHIBITION AGAINST FUTURE COMPETITION-DESTROYING
PRACTICES.  SWIFT & CO. V. UNITED STATES, 276 U.S. 311, 327.  IN VERY
BRIEF SUMMARY, THOSE FACTS, SO FAR AS RELEVANT TO THE VIEW I TAKE, ARE
THESE; 

AT THE TIME THE DECREES WERE ENTERED, FORD MADE AND SOLD ABOUT 25% OF
ALL CARS IN THE UNITED STATES, CHRYSLER 25% AND GENERAL MOTORS 44%.
FORD AND THE OTHERS SELL TO DEALERS ABOUT FOUR BILLION DOLLARS' WORTH
OF CARS YEARLY, REQUIRING CASH ON DELIVERY.  THE DEALERS THEN SELL TO
RETAIL CUSTOMERS.  ABOUT 60% OF THE RETAIL SALES ARE ON CREDIT. 
DEALERS NOT PERMITTED TO SELL OTHER MAKES OF CARS ARE WHOLLY DEPENDENT
UPON FORD'S, G.M.'S OR CHRYSLER'S FAVORABLE TREATMENT FOR THEIR
BUSINESS LIVES.  THE DEALER AGENCIES ARE FOR ONE YEAR, BUT THE AGENCY
CONTRACTS CAN BE CANCELED ON SHORT NOTICE AND WITHOUT CAUSE.  THE
DEALERS ARE THUS ECONOMIC DEPENDENTS OF THE COMPANY WHOSE CARS THEY
SELL.  WHILE THERE ARE ABOUT 375 INDEPENDENT FINANCE COMPANIES, C.I.T.
AND ITS SUBSIDIARIES, APPELLANTS HERE, PRIOR TO ENTRY OF THIS COURT
DECREE, FURNISHED ABOUT 82% OF THE MONEY FOR FORD DEALER PURCHASES, AND
70% OF THAT FURNISHED FOR FORD RETAIL PURCHASES.  THE FAVORED COMPANIES
GOT THIS MAJOR PERCENTAGE OF FORD CAR LOANS BECAUSE FORD SUPPLIED THEM
WITH OFFICES AT ITS FACTORIES, KEPT THEM INFORMED OF SALES, GAVE MORE
LIBERAL PAYMENT TERMS TO ITS DEALERS WHO DEALT WITH C.I.T., REQUIRED
DEALERS TO KEEP THEIR BOOKS AND RECORDS OPEN SO THAT FORD COULD PREVENT
TRANSACTIONS WITH OTHER FINANCE COMPANIES, SENT FORD FACTORY
REPRESENTATIVES WITH C.I.T. AGENTS TO HELP "PERSUADE" DEALERS TO DO
BUSINESS WITH C.I.T., AND REQUIRED DEALERS WHO HANDLED LOANS THROUGH
OTHERS TO MAKE SATISFACTORY EXPLANATIONS TO FORD. 

THIS FORD FAVORED FINANCE COMPANY, C.I.T., ASKS MODIFICATION.  ONE
REASON SUGGESTED FOR MODIFICATION IS THAT THE C.I.T. GROUP HAS LOST A
PORTION OF FORD FINANCING SINCE THE DECREE SUBJECTED THEM TO
COMPETITION WITH OTHER FINANCE COMPANIES.  THEY COMPLAIN OF THE DECREE
NOT BECAUSE IT STIFLES COMPETITIVE PRACTICE; QUITE THE CONTRARY, THEY
COMPLAIN BECAUSE THE DECREE INFRINGES ON C.I.T.'S MONOPOLISTIC
SANCTUARY. 

IN SUBSTANCE, THE MODIFICATIONS REQUESTED ARE, (1) THAT FORD BE
PERMITTED TO ACQUIRE OWNERSHIP, CONTROL, OR AN INTEREST IN A FINANCE
COMPANY; (2) THAT FORD BE PERMITTED TO ENDORSE, RECOMMEND, OR ADVERTISE
PARTICULAR FINANCE COMPANIES TO ITS DEALERS; (3) THAT FORD BE PERMITTED
TO ARRANGE WITH FINANCE COMPANIES THAT ITS REPRESENTATIVES GO WITH
AGENTS OF THE FAVORED COMPANY TO DEALERS TO "INFLUENCE" THOSE DEALERS
TO NEGOTIATE LOANS FOR THEMSELVES AND RETAIL PURCHASERS ONLY WITH THE
FAVORED COMPANIES.  FREEDOM TO INFLUENCE DEALERS WOULD APPEAR TO OFFER
A PERFECT OPPORTUNITY FOR FORD AND THE FAVORED FINANCE COMPANIES TO
DEPRIVE FORD DEALERS AND RETAIL PURCHASERS OF ALL BENEFITS IN THE WAY
OF LOW INTEREST RATES AND LIBERAL LOAN TERMS THE DEALERS AND RETAILERS
MIGHT OTHERWISE OBTAIN FROM COMPETITION AMONG THE HUNDREDS OF FINANCE
COMPANIES IN THE COUNTRY.  FOR IT IS SURE, IF THE UNDENIED ALLEGATIONS
OF THE COMPLAINT BE ACCEPTED, AS THEY SHOULD BE AT THIS STAGE, THAT THE
ECONOMIC POWER OF FORD OVER ITS DEALERS IS SO GREAT THAT DEALERS WHO
DESPERATELY NEED FORD CARS WILL BE HELPLESS TO RESIST FORD'S
"INFLUENCE" AND "PERSUASION," WHETHER LEGALISTICALLY CALLED "COERCION"
OR NOT.  DUE TO FORD'S POWER, WHAT DEALER COULD AFFORD TO DRAW NICE
DISTINCTIONS BETWEEN "PERSUASION" AND "COERCION"?  I CAN HARDLY BELIEVE
THAT THE SHOWING OF AN AGREEMENT BETWEEN FORD AND C.I.T. TO RETURN TO
THEIR OLD METHODS OF "PERSUASION" WOULD FAIL TO SUPPORT A FINDING OF
UNREASONABLE RESTRAINT OF TRADE. 

IT MUST BE REMEMBERED THAT FORD NEITHER PROMISED, NOR IS IT REQUIRED
BY THIS COURT'S ACTION, TO REFRAIN FROM USING ITS OVERPOWERING
INFLUENCE TO "PERSUADE" ITS DEALERS IN THE SAME OLD WAY.  FORD AND
C.I.T. RELY HERE ON NO SHOWING OF AN INTENT TO ABIDE BY THE ANTITRUST
LAW; THEY RELY ON THE LITERAL LANGUAGE OF WHAT THEY TREAT AS A CONTRACT
WITH GOVERNMENT PROSECUTORS.  BUT GOVERNMENT OFFICERS HAVE NO POWER, BY
CONTRACT OR OTHERWISE, TO PERMIT VIOLATIONS OF THE LAW, EVEN SHOULD
THEY ATTEMPT TO DO SO, WHICH IN THIS CASE I DO NOT THINK THEY DID.  HAD
GENERAL MOTORS BEEN ACQUITTED ON THE CRIMINAL CHARGE OF VIOLATING THE
ANTITRUST LAWS, THERE WOULD BE MERIT IN THE CONTENTION OF FORD THAT
GOVERNMENT OFFICERS SHOULD NOT INSIST ON CONTINUANCE OF THIS INJUNCTION
AGAINST FORD.  GENERAL MOTORS WAS NOT ACQUITTED, BUT WAS CONVICTED
UNDER AN INDICTMENT ALLEGING THE SAME TYPE OF ECONOMIC PRESSURE
PRACTICES ENJOINED BY THIS CONSENT DECREE.  AND THE TRIAL JUDGE CHARGED
THE JURY THAT THEY HAD "A RIGHT TO FIND THESE DEFENDANTS GUILTY" IF
THEY FOUND THAT THE GOVERNMENT HAD "PROVED THE ACTS BEYOND ALL
REASONABLE DOUBT THAT ARE AVERRED IN THIS INDICTMENT."  TRUE THE COURT
CHARGED THE JURY THAT ACTS OF MERE "PERSUASION" WERE NOT ENOUGH, AND
THAT GENERAL MOTORS MUST HAVE USED ITS POWER "AS A CLUB TO COERCE." 
AND THE COURT EXPLAINED DICTIONARY DIFFERENCES IN THE ABSTRACT BETWEEN
"PERSUASION" AND "COERCION."  BUT THE JURY WAS CONSIDERING A CONCRETE
SET OF FACTS IN WHICH THE LANGUAGE USED BY GENERAL MOTORS, IN THE
ABSTRACT, MIGHT ONLY AMOUNT TO "PERSUASION," WHILE THE LANGUAGE PLUS
GENERAL MOTORS' ECONOMIC POWER MIGHT AMOUNT TO "COERCION."  AND THE
JURY'S VERDICT OF GUILTY, VIEWED IN THE LIGHT OF THE COURT'S CHARGE,
MEANS TO ME THAT THE PERSUASION PLUS ECONOMIC POWER CHARGED AND PROVED
IN THE GENERAL MOTORS CASE, WHICH WERE IN SUBSTANCE THE IDENTICAL ACTS
AND PRACTICES CHARGED AND ENJOINED IN THIS CASE, SHOWED USE OF "A CLUB
TO COERCE" IN VIOLATION OF THE ANTITRUST LAWS.  I THEREFORE AGREE WITH
THE FINDING OF THE DISTRICT COURT HERE IN DENYING FORD'S MOTION TO
MODIFY, NAMELY THAT THE AGREEMENTS, ACTS, AND PRACTICES SUCH AS HERE
ENJOINED CONSTITUTED A PROPER BASIS FOR THE GENERAL VERDICT OF GUILTY
IN THE GENERAL MOTORS CASE.  CONSEQUENTLY, I THINK THAT THE GOVERNMENT
HAS FAIRLY MET THE CONSENT DECREE'S CONDITION WITH REFERENCE TO THE
CONVICTION OF GENERAL MOTORS. 

NOR DO I BELIEVE THAT IN THE PRESENT STATE OF THE RECORD THIS COURT
SHOULD LIFT THE BAN AGAINST FORD'S ACQUISITION OF OR AFFILIATION WITH A
FINANCE COMPANY.  THE LAW PROHIBITS ACQUISITION BY ONE CORPORATION OF
THE WHOLE OR ANY PART OF THE STOCK OF "ANOTHER CORPORATION  ...  WHERE
THE EFFECT OF SUCH ACQUISITION MAY BE  ...  TO RESTRAIN  ...  COMMERCE
IN ANY SECTION OR COMMUNITY, OR TEND TO CREATE A MONOPOLY OF ANY LINE
OF COMMERCE."  38 STAT. 731-732, 15 U.S.C. SEC. 18.  THERE CAN BE NO
DOUBT THAT AFFILIATION BETWEEN FORD AND A CERTAIN GROUP OF FINANCE
COMPANIES WILL LESSEN THE OPPORTUNITY OF OTHER FINANCE COMPANIES TO
COMPETE FOR THE AUTOMOBILE LOAN CONTRACTS BOTH OF DEALERS AND RETAIL
PURCHASERS.  AND WHERE THE VOLUME OF BUSINESS AS HERE INVOLVES 25% OF
ALL AUTOMOBILE SALES (AND EVENTUALLY PROBABLY IN EXCESS OF 90%) THE
TENDENCY TO MONOPOLY IS AGGRAVATED. 

FORD RELIES UPON ALLEGATIONS MADE IN ITS MOTION TO MODIFY TO THE
EFFECT THAT IT WILL BE COMPETITIVELY INJURED IF DENIED AN OPPORTUNITY
TO AFFILIATE WITH A FINANCE COMPANY AND TO "PERSUADE" ITS DEALERS TO
BORROW FROM THAT COMPANY ALONE, SO LONG AS GENERAL MOTORS IS ALLOWED TO
"PERSUADE" ITS DEALERS TO BORROW FROM A GENERAL MOTORS AFFILIATE OR
SUBSIDIARY.  BUT FORD HAS NOT PROPOSED TO THE COURT ANY LEGALLY
ALLOWABLE PLAN FOR AFFILIATION, NOR HAS IT SHOWN THE COURT THAT
CONTINUANCE OF THE DECREE WILL CAUSE IT TO SUFFER A COMPETITIVE
DISADVANTAGE IN THE SALE OF CARS.  FAILURE OF PROOF IN THESE TWO
RESPECTS WAS HELD AN ADEQUATE GROUND FOR DENYING A MOTION OF CHRYSLER
CORPORATION TO AMEND A DECREE PRECISELY LIKE THIS ONE.  CHRYSLER CORP.
V. UNITED STATES, 316 U.S. 556, 564.  WE SHOULD TAKE THE SAME ACTION IN
THIS CASE WHERE THE DISTRICT COURT SPECIFICALLY HAS FOUND THAT FORD HAD
FAILED TO PROVE THAT CONTINUANCE OF THE DECREE WOULD SUBJECT FORD TO A
COMPETITIVE DISADVANTAGE.  MOREOVER, IT IS DIFFICULT TO IMAGINE HOW
FORD COULD BE SUFFERING A COMPETITIVE DISADVANTAGE IN THE SALE OF CARS
IN TODAY'S FAMISHED CAR MARKET.  SO FAR AS THIS RECORD SHOWS, FORD
WOULD NOT LOSE THE SALE OF A SINGLE CAR BY LEAVING THIS DECREE AS IT
IS.  AND FORD DOES NOT RELY ON A DESIRE TO MAKE A PROFIT, SECRET OR
OPEN, OUT OF LOANS ITS DEALERS MUST OBTAIN TO PAY FORD OR LOANS RETAIL
PURCHASERS MUST GET TO PAY DEALERS.  IF FORD PROFESSED A DESIRE TO MAKE
LOANS AS A FINANCE COMPANY IN OPEN COMPETITION WITH OTHER FINANCE
COMPANIES, THAT WOULD BE ONE THING.  IT IS QUITE ANOTHER TO ASK A COURT
OF EQUITY TO LIFT ITS BAN IN ORDER THAT FORD MAY DICTATE LOAN TERMS FOR
DEALERS AND RETAIL PURCHASERS AFTER FORD HAS SOLD THE CARS IN THE
MARKET.  THE ONLY COMPETITIVE DISADVANTAGE THAT THIS RECORD REVEALS IS
THAT FROM WHICH FORD DEALERS, FORD RETAIL PURCHASERS, AND INDEPENDENT
LOAN AGENCIES WILL SUFFER WHEN THE MODIFICATION OF THIS DECREE GIVES
FORD AND C.I.T. THE GREEN LIGHT. 

FURTHERMORE, THE COURT'S ACTION HERE MEANS THAT THE CHRYSLER DECREE
MUST BE MODIFIED WITHOUT THE SHOWING THIS COURT REQUIRED IN THE
CHRYSLER CASE.  AND IT MEANS THAT FUTURE DESTRUCTION OF COMPETITION IN
AUTOMOBILE FINANCING BY FORD, CHRYSLER, AND GENERAL MOTORS HAS THE
TACIT APPROVAL OF THIS COURT.  FOR IF FORD SHOULD AFTER TODAY
"AFFILIATE" WITH C.I.T., OR RENEW ITS "PERSUASION" OF DEALERS, COULD IT
BE EXPECTED THAT THIS COURT WOULD THEREAFTER HOLD THESE OTHER COMPANIES
LEGALLY RESPONSIBLE, EVEN IF IT SHOULD BE THOUGHT THAT TODAY'S
PERMITTED CONDUCT RAN AFOUL OF THE ANTITRUST LAW?  IS IT CONCEIVABLE
THAT IF FORD NOW "AFFILIATES" WITH C.I.T., FORD'S "VESTED INTEREST,"
ACQUIRED WITH THIS COURT'S TACIT APPROVAL, WOULD BE TAKEN FROM FORD BY
A FEDERAL COURT? 

MUCH TALK ABOUT REFINED DISTINCTIONS IN THE COURT'S CHARGE IN THE
GENERAL MOTORS CASE CANNOT CREATE DOUBTS AS TO THE EFFECT OF THE
DECISION TODAY.  THE RESULT WILL BE DESTRUCTION OF COMPETITION IN
AUTOMOBILE FINANCING.  HEREAFTER DEALERS AND RETAIL PURCHASERS CANNOT
DEPEND ON COMPETITION TO KEEP INTEREST RATES AT A FAIR LEVEL.  THEIR
SOLE HOPE FOR LOW INTEREST RATES AND LOANS ON LIBERAL TERMS WILL BE THE
SPONTANEOUS GENEROSITY OF FORD, GENERAL MOTORS, AND CHRYSLER.  IT MAY
BE THAT MONOPOLY IN AUTOMOBILE LOANS IS A GOOD THING, BUT THE ANTITRUST
LAWS ASSUME THAT COMPETITION IS BETTER. 

I WOULD AFFIRM THIS JUDGMENT. 

MR. JUSTICE RUTLEDGE CONCURS IN THIS DISSENT. 

MR. JUSTICE DOUGLAS JOINS IN THIS OPINION INSOFAR AS IT PROTESTS
AGAINST LIFTING THE BAN ON FORD'S ACQUISITION OF OR AFFILIATION WITH A
FINANCE COMPANY. 
..END :









ECKENRODE V. PENNSYLVANIA R. CO., 335 U.S. 329 


NO. 28.  ARGUED OCTOBER 22, 1948.  - DECIDED NOVEMBER 15, 1948.  - 164
F.2D 996, AFFIRMED. 


IN A SUIT FOR DAMAGES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT FOR
THE DEATH OF A RAILROAD EMPLOYEE, HELD THAT THERE WAS NO EVIDENCE IN
THE RECORD, NOR ANY INFERENCE WHICH REASONABLY COULD BE DRAWN FROM THE
EVIDENCE, WHEN VIEWED IN A LIGHT MOST FAVORABLE TO PLAINTIFF, WHICH
COULD SUSTAIN A RECOVERY.  P. 330. 

ECKENRODE, ADMINISTRATRIX, V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

IN A SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE DISTRICT
COURT SET ASIDE A VERDICT FOR THE PLAINTIFF AND ENTERED JUDGMENT FOR
THE DEFENDANT.  71 F.SUPP.  764.  THE COURT OF APPEALS AFFIRMED.  164
F.2D 996.  THIS COURT GRANTED CERTIORARI.  333 U.S. 866.  AFFIRMED, P.
330. 

PER CURIAM. 

THIS WAS A SUIT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA IN WHICH THE PETITIONER CLAIMED DAMAGES UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT  FN1  AND THE BOILER INSPECTION
ACT  FN2  FOR THE DEATH OF HER HUSBAND WHILE IN THE RESPONDENT'S EMPLOY
AS A BRAKEMAN. 

IN RESPONSE TO SPECIFIC INTERROGATORIES, THE JURY ABSOLVED THE
RESPONDENT OF LIABILITY UNDER THE BOILER INSPECTION ACT, BUT FOUND THAT
THERE HAD BEEN SUCH NEGLIGENCE AS TO CREATE LIABILITY UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  IT RETURNED A VERDICT FOR PETITIONER. 
JUDGMENT WAS ENTERED UPON THE VERDICT. 

THE RESPONDENT MOVED THE COURT TO SET ASIDE THE VERDICT AND THE
JUDGMENT ENTERED THEREON IN ACCORDANCE WITH ITS MOTION FOR DIRECTED
VERDICT UNDER RULE 50 OF THE FEDERAL RULES OF CIVIL PROCEDURE.  THE
JUDGMENT WAS VACATED; THE VERDICT SET ASIDE, AND JUDGMENT ENTERED IN
FAVOR OF THE RESPONDENT.  THE DISTRICT COURT WAS OF THE OPINION THAT
THERE WAS NO EVIDENCE UPON WHICH A FINDING OF NEGLIGENCE COULD BE
PREDICATED, AND THAT, IN ANY EVENT, THERE WAS NO EVIDENCE OF A CAUSAL
RELATION BETWEEN THE CLAIMED NEGLIGENCE AND THE ACCIDENT.  71 F.SUPP. 
764. 

UPON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT, THE JUDGMENT WAS AFFIRMED.  A REHEARING WAS GRANTED, AND THERE
WAS AN AFFIRMANCE WITH ONE JUDGE DISSENTING.  164 F.2D 996. 

THERE IS A SINGLE QUESTION PRESENTED TO US:  WAS THERE ANY EVIDENCE
IN THE RECORD UPON WHICH THE JURY COULD HAVE FOUND NEGLIGENCE ON THE
PART OF THE RESPONDENT WHICH CONTRIBUTED, IN WHOLE OR IN PART,  FN3  TO
ECKENRODE'S DEATH?  UPON CONSIDERATION OF THE RECORD, THE COURT IS OF
THE OPINION THAT THERE IS NO EVIDENCE, NOR ANY INFERENCE WHICH
REASONABLY MAY BE DRAWN FROM THE EVIDENCE, WHEN VIEWED IN A LIGHT MOST
FAVORABLE TO THE PETITIONER, WHICH CAN SUSTAIN A RECOVERY FOR HER. 

ACCORDINGLY, THE JUDGMENT IS AFFIRMED. 

FN1  35 STAT. 65, 53 STAT. 1404, 45 U.S.C. SEC. 51. 

FN2  36 STAT. 913, AS AMENDED, 45 U.S.C. SEC. 23. 

FN3  45 U.S.C. SEC. 51. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR.
JUSTICE RUTLEDGE DISSENT. 
..END :





MANDEL BROS. V. WALLACE, 335 U.S. 291 


NO. 16.  ARGUED OCTOBER 14, 1948.  - DECIDED NOVEMBER 8, 1948.  - 164
F.2D 861, REVERSED. 


1.  CERTAIN CLAIMS OF WALLACE AND HAND PATENT NO. 2,236,387, FOR AN
IMPROVED COSMETIC PREPARATION TO RETARD OR INHIBIT PERSPIRATION, HELD
INVALID FOR WANT OF INVENTION.  PP. 291-296. 

2.  SINCE THE USE OF UREA AS AN ANTICORROSIVE AGENT IN OTHER COMPOUNDS
WAS ALREADY A MATTER OF PUBLIC KNOWLEDGE, ITS USE IN ANTIPERSPIRANTS TO
REDUCE THE LIKELIHOOD OF SKIN IRRITATION OR GARMENT CORROSION WAS
MERELY THE APPLICATION OF AN OLD PROCESS TO A NEW USE AND WAS NOT
INVENTION.  PP. 293-296. 

MANDEL BROTHERS, INC. V. WALLACE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

IN A PATENT INFRINGEMENT SUIT, THE DISTRICT COURT HELD THE CLAIMS
INVALID FOR WANT OF INVENTION AND DISMISSED THE COMPLAINT.  67 F.SUPP. 
814.  THE COURT OF APPEALS REVERSED.  164 F.2D 861.  THIS COURT GRANTED
CERTIORARI.  333 U.S. 853.  REVERSED, P. 296. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, OWNER OF WALLACE AND HAND PATENT NO. 2,236,387, FILED
A COMPLAINT AGAINST THIS PETITIONER FOR INFRINGEMENT OF CLAIMS 1 TO 6,
8 TO 13, 15 AND 16.  THE DISTRICT COURT HELD THE CLAIMS INVALID FOR
WANT OF PATENTABLE INVENTION AND DISMISSED THE COMPLAINT.  67 F.SUPP. 
814.  THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT HELD
THE CLAIMS VALID AND REVERSED.  164 F.2D 861.  THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT HAD PREVIOUSLY AFFIRMED A DISTRICT
COURT'S INVALIDATION OF THE SAME PATENT.  WALLACE V. F.W. WOOLWORTH
CO., 45 F.SUPP.  465; 133 F.2D 763.  TO RESOLVE THE CONFLICT WE GRANTED
CERTIORARI. 

THE PATENT IS FOR AN "IMPROVED" COSMETIC PREPARATION TO RETARD OR
INHIBIT PERSPIRATION.  PRIOR TO APPLICATION FOR THE PATENT (1938), MANY
ANTIPERSPIRANTS WERE ON THE MARKET CONTAINING ACID SALTS OF A METAL,
USUALLY ALUMINUM CHLORIDE OR ALUMINUM SULFATE.  THE ACIDITY PRODUCED BY
THESE ACID-REACTING SALTS IS AN ASTRINGENT WHICH RETARDS PERSPIRATION. 
BUT, AS STATED IN THE PATENT SPECIFICATIONS, THE ACID SOMETIMES
IRRITATES THE SKIN AND ALSO ROTS CLOTHING TO WHICH THE ACID MAY ADHERE,
PARTICULARLY WHEN THAT CLOTHING IS HEATED BY IRONING.  THUS IN THE OLD
ANTIPERSPIRANTS THE ASTRINGENT QUALITIES OF THE ACID WERE DESIRABLE
BECAUSE ESSENTIAL TO THEIR EFFECTIVENESS IN RETARDING PERSPIRATION; ON
THE OTHER HAND, THE SKIN IRRITATING AND CLOTH CORRODING QUALITIES OF
THE ACID WERE OBVIOUSLY UNDESIRABLE.  THIS WAS THE PROBLEM AS POSED BY
THE PATENT APPLICATION. 

THE PATENT SPECIFICATIONS ASSERTED AND THE DISTRICT COURT FOUND THAT
THOUGH STANDARD ALKALIES WOULD NEUTRALIZE AND THUS REDUCE ACIDITY AND
CONSEQUENT SKIN IRRITATION AND CLOTH CORROSION, THESE ALKALIES WOULD BY
NEUTRALIZING ACIDITY ALSO REDUCE THE ASTRINGENCY ESSENTIAL TO CHECK
PERSPIRATION.  THE CLAIMED DISCOVERY OF THE PATENT IS IN ADDING TO THE
OLD ACID-SALTS COSMETICS CERTAIN TYPES OF THE REACTIVE AMINO CHEMICAL
GROUP, PARTICULARLY UREA.  THIS ADDITION, THE PATENTEES ASSERTED,
RESULTS IN AN IMPROVED COMPOUND WHICH CHECKS PERSPIRATION BUT NEITHER
IRRITATES THE SKIN NOR CORRODES THE CLOTHING. 

THE DISTRICT COURT FOUND THAT THE ADDITION OF UREA TO THE OLDER
PREPARATIONS GREATLY REDUCED WHATEVER LIKELIHOOD THERE HAD BEEN THAT
APPLICATION OF THE PREPARATION WOULD IRRITATE SKIN  FN1 OR CORRODE
GARMENTS.  IT FOUND THAT THE PATENTEES WERE THE FIRST PERSONS TO USE
UREA AS A CORROSION INHIBITING AGENT IN AN ANTIPERSPIRANT.  BUT THE
DISTRICT COURT ALSO FOUND THAT PRIOR TO THE PATENTEES' ALLEGED
DISCOVERY THE USE OF UREA AS AN ANTICORROSIVE AGENT WAS ALREADY A
MATTER OF PUBLIC KNOWLEDGE, AND THAT IT HAD PREVIOUSLY BEEN USED AS A
CORROSION INHIBITOR IN COMPOUNDS OTHER THAN ANTIPERSPIRANTS.  AS A
CONSEQUENCE OF THESE FINDINGS, THE DISTRICT COURT HELD THE PATENT
INVALID.  THE DISTRICT COURT AND THE UNITED STATES COURT OF APPEALS IN
THE CASE OF WALLACE V. F.W. WOOLWORTH CO., SUPRA, HAD HELD THE PATENT
INVALID FOR THE SAME REASON. 

LONG PRIOR TO THIS PATENT, IT WAS GENERALLY RECOGNIZED IN THE
CHEMICAL FIELD THAT UREA WOULD REACT WITH ACIDS, BASES, AND SALTS TO
PRODUCE NEW SUBSTANCES.  UREA HAD BEEN IN GENERAL USE WHEREVER THESE
RESULTS WERE DESIRABLE FOR CHEMICAL STABILIZATIONS.  AND RESPONDENT
CONCEDES THAT BEFORE APPLICATION WAS MADE FOR THIS PATENT IT WAS
COMMONLY KNOWN, AT LEAST BY CHEMISTS, THAT UREA WOULD REACT WITH ACIDS
IN A MANNER WHICH WOULD REDUCE THEIR CORROSIVENESS.  THESE FACTS ARE
MADE CLEAR BY THIS RECORD, BY THE OPINIONS OF THE FOUR COURTS THAT
CONSIDERED THIS PATENT, AND BY THEIR DISCUSSIONS OF THE PRIOR PATENTS
RELIED ON BY THE RESPONDENT HERE. 

PRIOR PATENTS (SCHUPPHAUS, NO. 514,838, AND KOCH NO. 2,011,292) HAD
SUGGESTED USE OF UREA AS A STABILIZER AGAINST DECOMPOSITION OF CHEMICAL
COMBINATIONS INTO DELETERIOUS ACIDIC SUBSTANCES.  IT MAY BE ASSUMED
THAT THESE PATENTS STANDING ALONE WOULD NOT HAVE TAUGHT THESE PATENTEES
TO EXPERIMENT WITH UREA TO SOLVE THEIR COSMETIC PROBLEM.  THEY DO,
HOWEVER, SHOW THE STATE OF THE PRIOR ART AND POINT TO THE POSSIBILITY
OF USING UREA TO INHIBIT UNWANTED DECOMPOSITION OF SUBSTANCES
CONTAINING ACID OR ACID SALTS.  INDEED, KOCH DEALT WITH THE ADDITION OF
UREA TO ALUMINUM SALTS.  AND MISSBACH, IN NO. 2,069,711, PROPOSED TO
PROTECT CLOTHES FROM THE DELETERIOUS EFFECTS OF DRY CLEANING FLUIDS BY
THE USE OF UREA TO PREVENT INJURY DUE TO ACIDIC SUBSTANCES BROUGHT
ABOUT BY ACIDIC REACTIONS OF CARBON TETRACHLORIDE.  HE CLAIMED HIS
INVENTION PROVIDED "AN EFFECTIVE CORROSION INHIBITOR." 

SHIPP PATENT NO. 2,174,534 POINTED OUT THAT "CERTAIN USES OF SULFURIC
ACIDS ON TEXTILES ARE SO ADVANTAGEOUS THAT ENDEAVORS HAVE BEEN MADE TO
SO TREAT TEXTILES WITH SULFURIC ACID AS TO OBTAIN THE DESIRED EFFECTS
BUT TO AVOID THE UNDESIRABLE EFFECTS."  THE UNDESIRABLE RESULT SHIPP
WANTED TO ELIMINATE WAS THE "MARKED DEGRADING OR DISINTEGRATING EFFECT
ON CELLULOSE FIBERS" OF "STRONG SULFURIC ACID."  HE THEREFORE PROPOSED
USE OF AN AGENT "CAPABLE OF INHIBITING OR AT LEAST GREATLY RETARDING
THE NORMAL DEGRADING ACTION OF STRONG SULFURIC ACID UPON CELLULOSE." 
THE "INHIBITING" AGENT THERE PROPOSED WAS UREA OR OTHER MATERIALS SUCH
AS "AN AMIDE ALONE OR AN AMIDE AND AN AMINE ...  "  THE CORROSION
"INHIBITING" AGENTS HERE ARE AMINO GROUPS WHICH INCLUDE UREA. 

RESPONDENT CONTENDS THAT THE SHIPP PATENT IS IRRELEVANT.  HE URGES
THAT THE SHIPP PREPARATION MERELY RETARDS CORROSION ON CLOTH WHEREAS
RESPONDENT'S STOPS CORROSION COMPLETELY.  HE ALSO POINTS OUT THAT SHIPP
DEALT WITH SULFURIC ACID AND NOT AN ACID SALT AS IS INVOLVED IN THIS
PATENT.  HE ARGUES THAT THE TEACHINGS OF THE SHIPP AND OTHER PATENTS
WOULD NOT HAVE LED A CHEMIST SKILLED IN HIS ART TO UNDERTAKE THE
EXPERIMENT WHICH EVENTUATED IN THE SUCCESS OF THESE PATENTEES.  HE
TAKES THIS POSITION BECAUSE IN THE USE OF ALKALIES AND EVEN OF UREA
WITH PLAIN ACIDS, THE ACIDS DID NOT RETAIN THEIR FULL EFFECTIVENESS AS
ANTIPERSPIRANTS.  THE NATURAL CONCLUSION OF A CHEMIST, HE ARGUES, WOULD
HAVE BEEN THAT UREA WOULD RESULT IN THE SAME FAILURE IF COMBINED WITH
THE ACID SALTS INVOLVED IN HIS PATENT.  BUT IT DID NOT.  UREA COMBINED
WITH ACID SALTS BROUGHT ABOUT THE DESIRED RESULT.  THIS RESULT HE
THEREFORE CONTENDS WAS A "PARADOXICAL" ONE, UNPREDICTABLE BY A SKILLED
CHEMIST.  CONSEQUENTLY, HE SAYS, THE DISCOVERY ROSE TO THE LEVEL OF
PATENTABLE INVENTION. 

BUT WE THINK THAT THE STATE OF THE PRIOR ART WAS PLAINLY SUFFICIENT
TO DEMONSTRATE TO ANY SKILLED CHEMIST SEARCHING FOR AN ANTICORROSIVE
AGENT THAT HE SHOULD MAKE THE SIMPLE EXPERIMENT THAT WAS MADE HERE. 
THE PATENTEES KNEW THAT UREA WAS IN GENERAL USE AS A STABILIZING AGENT
WITH ACID AND SALTS.  MOREOVER, THE PATENTEES KNEW THAT STANDARD
ALKALIES HAD BEEN SUCCESSFULLY EMPLOYED IN PRIOR PATENTS FOR THEIR
ANTICORROSIVE EFFECT.  IT IS NOT SURPRISING THEREFORE THAT AFTER
EXPERIMENTING WITH VARIOUS STANDARD ALKALIES IN AN EFFORT TO FIND A
CORROSION INHIBITOR THAT WOULD NOT GREATLY REDUCE ACIDIC ASTRINGENCY,
THE PATENTEES PROMPTLY TURNED TO UREA.  THEIR SUCCESS WAS IMMEDIATE. 

AS THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT POINTED
OUT WHEN THIS PATENT WAS BEFORE IT:  "  ...  SKILLFUL EXPERIMENTS IN A
LABORATORY, IN CASES WHERE THE PRINCIPLES OF THE INVESTIGATIONS ARE
WELL KNOWN, AND THE ACHIEVEMENT OF THE DESIRED END REQUIRES ROUTINE
WORK RATHER THAN IMAGINATION, DO NOT INVOLVE INVENTION."  THESE
ESTABLISHED PRINCIPLES OF LAW WOULD DISPOSE OF THE CASE EXCEPT FOR THE
POSITION TAKEN BY THE UNITED STATES COURT OF APPEALS IN THIS CASE THAT
THE COSMETIC PROBLEM HERE WAS REMOTE AND UNRELATED TO THE PROBLEMS
CONSIDERED IN THE PRIOR ART. FOR THIS REASON THAT COURT HELD THAT
PATENTEES IN THE FIELD OF COSMETICS WERE NOT BOUND BY PRIOR ART
KNOWLEDGE DISCLOSED BY THE SHIPP AND OTHER PATENTS.  THE COURT
THEREFORE CONSIDERED THIS PATENT ALMOST AS THOUGH PATENTEES WERE
WRITING ON A CLEAN SHEET.  ACCORDINGLY IT HELD THAT THE USE OF UREA IN
THE COSMETICS FIELD WITH THE RESULTS HERE OBTAINED WAS PATENTABLE
INVENTION. 

IN THIS THE COURT WAS IN ERROR.  AS WE HAVE POINTED OUT, THE GENERAL
STORE OF CHEMICAL KNOWLEDGE IN 1938 WAS SUCH THAT ANYONE WORKING ON ANY
PROBLEM OF ACIDIC CORROSION AND IRRITATION WOULD NATURALLY AND
SPONTANEOUSLY HAVE TRIED UREA.  ALL THAT THESE PATENTEES DID WAS TO
UTILIZE IN A COSMETIC PREPARATION, PUBLICLY AVAILABLE KNOWLEDGE THAT
UREA WOULD INHIBIT ACIDIC CORROSION.  THE STEP TAKEN BY THE PATENTEES
IN ADVANCE OF PAST KNOWLEDGE WAS TOO SHORT TO AMOUNT TO INVENTION. 
THEY MERELY APPLIED AN OLD PROCESS OF INHIBITION TO A NEW COSMETIC
USE.  THIS IS NOT INVENTION.  DOW CHEMICAL CO. V. HALLIBURTON OIL WELL
CEMENTING CO., 324 U.S. 320, 327.  REVERSED. 

FN1  PETITIONER POINTS OUT THAT THE DISTRICT COURT IN THE WOOLWORTH
CASE FOUND THE EVIDENCE BEFORE IT INADEQUATE TO SHOW THAT THE OLD
PREPARATIONS HAD RESULTED IN SUBSTANTIAL SKIN IRRITATION AND URGES A
LIKE INADEQUACY OF EVIDENCE HERE.  BUT THE DISTRICT COURT HERE FOUND
THAT "THE ASTRINGENT MATERIALS MAY ATTACK THE SKIN OF SENSITIVE
INDIVIDUALS" AND THAT "A RESIDUE OF ACID REMAINED WHICH SOMETIMES
IRRITATED THE SKIN." 

MR. JUSTICE DOUGLAS WOULD REVERSE THE JUDGMENT ON THE AUTHORITY OF
FUNK BROS. SEED CO. V. KALO INOCULANT CO., 333 U.S. 127, 131, WHICH WAS
DECIDED AFTER THE DECISION OF THE COURT OF APPEALS IN THIS CASE. 
..END :




HOINESS V. UNITED STATES, 335 U.S. 297 


NO. 20.  ARGUED OCTOBER 21, 1948.  - DECIDED NOVEMBER 8, 1948.  - 165
F.2D 504, REVERSED. 


1.  A DISTRICT COURT ENTERED AN ORDER DISMISSING A LIBEL AND DIRECTING
THAT COUNSEL FOR RESPONDENTS SUBMIT FINDINGS OF FACT AND CONCLUSIONS OF
LAW.  SUBSEQUENTLY, IT FILED FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND A DECREE DISMISSING THE LIBEL.  LIBELANT APPEALED WITHIN THREE
MONTHS FROM THE DATE OF THE FIRST ORDER AND WHAT HE SOUGHT TO HAVE
REVIEWED WAS PLAIN; BUT HE REFERRED ONLY TO THE SECOND ORDER IN HIS
PETITION FOR APPEAL.  THE COURT OF APPEALS DISMISSED THE APPEAL ON THE
GROUND THAT THE FIRST ORDER WAS THE FINAL ONE AND THAT THE SECOND ORDER
WAS NOT APPEALABLE.  HELD:  IT ERRED IN DOING SO, SINCE THE DEFECT
RESULTING FROM A FAILURE TO REFER TO THE FIRST ORDER WAS OF SUCH A
TECHNICAL NATURE THAT THE COURT OF APPEALS SHOULD HAVE DISREGARDED IT
IN ACCORDANCE WITH THE POLICY EXPRESSED BY CONGRESS IN R.S. SEC. 954,
28 U.S.C. (1946 ED.)  SEC. 777.  PP. 300-301. 

2.  A SEAMAN ON A VESSEL OWNED BY THE UNITED STATES AND OPERATED
UNDER AN AGREEMENT BETWEEN THE WAR SHIPPING ADMINISTRATION AND A
PRIVATE SHIPPING COMPANY WAS INJURED WHILE THE VESSEL WAS DOCKED AT SAN
FRANCISCO AND BROUGHT A LIBEL IN PERSONAM AGAINST THE UNITED STATES
UNDER THE SUITS IN ADMIRALTY ACT.  THE LIBEL DID NOT ALLEGE THAT THE
SEAMAN WAS A RESIDENT OF THE DISTRICT WHERE SUIT WAS BROUGHT NOR THAT
THE VESSEL WAS FOUND THERE AT THE TIME SUIT WAS FILED.  THE UNITED
STATES DID NOT APPEAR SPECIALLY BUT ANSWERED TO THE MERITS.  RAISING
THE QUESTION SUA SPONTE, THE DISTRICT COURT DISMISSED THE LIBEL FOR
WANT OF JURISDICTION.  HELD:  IT ERRED IN DOING SO, SINCE THE
PROVISIONS OF SEC. 2 OF THE SUITS IN ADMIRALTY ACT DIRECTING WHERE
SUITS SHALL BE BROUGHT RELATE NOT TO JURISDICTION BUT TO VENUE, WHICH
WAS WAIVED BY FAILURE TO OBJECT BEFORE PLEADING TO THE MERITS.  PP. 301
302. 

HOINESS V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

A DISTRICT COURT DISMISSED FOR WANT OF JURISDICTION A LIBEL BROUGHT
BY A SEAMAN AGAINST THE UNITED STATES AND OTHERS UNDER THE SUITS IN
ADMIRALTY ACT.  75 F.SUPP.  289.  THE COURT OF APPEALS DISMISSED AN
APPEAL.  165 F.2D 504.  THIS COURT GRANTED CERTIORARI.  333 U.S. 859. 
REVERSED, P. 302. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS A SEAMAN ON THE S.S. ESCANABA VICTORY, A VESSEL OWNED
BY THE UNITED STATES AND OPERATED UNDER AN AGREEMENT BETWEEN THE WAR
SHIPPING ADMINISTRATION  FN1  AND THE AMERICAN-SOUTH AFRICAN LINE,
INC., THE PROVISIONS OF WHICH ARE UNNECESSARY TO RELATE HERE.  HE WAS
INJURED WHILE THE VESSEL WAS DOCKED AT THE PORT OF SAN FRANCISCO,
CALIFORNIA, AND BROUGHT THIS SUIT IN ADMIRALTY AGAINST THE UNITED
STATES  FN2  UNDER THE SUITS IN ADMIRALTY ACT.  FN3  41 STAT. 525, 46
U.S.C. SEC. 742.  THE LIBEL ALLEGED THAT THE UNITED STATES MAINTAINS
OFFICES AND PRINCIPAL PLACES OF BUSINESS IN THE NORTHERN DISTRICT OF
CALIFORNIA WHERE THE SUIT WAS BROUGHT, BUT IT DID NOT ALLEGE THAT
PETITIONER WAS A RESIDENT OF THAT DISTRICT  FN4  NOR THAT THE VESSEL
WAS FOUND THERE AT THE TIME SUIT WAS FILED.  THE UNITED STATES DID NOT
APPEAR SPECIALLY BUT ANSWERED TO THE MERITS, LEAVING ALL QUESTIONS OF
JURISDICTION TO THE COURT.  THE DISTRICT COURT RAISED THE QUESTION OF
JURISDICTION SUA SPONTE AND, BEING OF OPINION THAT JURISDICTION WAS
LACKING, DISMISSED THE LIBEL.  75 F.SUPP.  289. 

ITS OPINION WAS DATED AUGUST 5, 1946, AND ON THE SAME DAY IT ENTERED
AN ORDER READING AS FOLLOWS: 

"IT IS ORDERED: 

"THAT THE LIBEL HEREIN IS DISMISSED FOR LACK OF JURISDICTION, AND
THAT RESPONDENTS HAVE JUDGMENT FOR COSTS. 

"COUNSEL FOR RESPONDENTS WILL SUBMIT FINDINGS OF FACT AND CONCLUSIONS
OF LAW IN ACCORDANCE WITH THE RULES OF COURT AND THE OPINION FILED
HEREWITH." 

ON OCTOBER 14, 1946, IT FILED "FINDINGS OF FACT AND CONCLUSIONS OF
LAW" AND A DECREE.  THE DECREE AFTER FORMAL RECITALS STATED: 

"WHEREFORE, BY REASON OF THE LAW AND THE EVIDENCE AND THE PREMISES,
AND THE FINDINGS OF FACT AND CONCLUSIONS OF LAW, AS AFORESAID, IT IS
ORDERED, ADJUDGED AND DECREED THAT THE ABOVE-ENTITLED COURT HAS NO
JURISDICTION OVER THE SUBJECT MATTER OF THE ACTION, AND THAT THE LIBEL
BE DISMISSED."  ON OCTOBER 18, 1946, PETITIONER FILED A PETITION FOR
APPEAL STATING THAT HE WAS "AGGRIEVED BY THE RULINGS, FINDINGS,
JUDGMENT AND DECREE MADE AND ENTERED HEREIN ON OCTOBER 14, 1946."  THE
APPEAL WAS ALLOWED ON THE SAME DAY. 

THE COURT OF APPEALS BY A DIVIDED VOTE DISMISSED THE APPEAL, HOLDING
THAT THE FIRST ORDER WAS THE FINAL ONE AND THAT THE DECREE OF OCTOBER
14, 1946, WAS NOT APPEALABLE.  165 F.2D 504.  THE CASE IS HERE ON
CERTIORARI. 

I. WE FIND IT UNNECESSARY TO DETERMINE WHETHER THE ORDER OF AUGUST 5
OR THAT OF OCTOBER 14, 1946, WAS THE FINAL DECISION  FN5  FROM WHICH AN
APPEAL COULD BE TAKEN WITHIN THE MEANING OF SEC. 128 OF THE JUDICIAL
CODE, 36 STAT. 1133, 28 U.S.C. (1946 ED.)  SEC.  225; 62 STAT. 929, 28
U.S.C. SEC. 1291.  THE APPEAL WAS TAKEN WITHIN THREE MONTHS OF THE
EARLIER OF THE TWO AND WAS THEREFORE TIMELY.  43 STAT. 940, 28 U.S.C.
(1946 ED.)  SEC.  230.  AND ALTHOUGH THE PETITION FOR APPEAL REFERRED
SOLELY TO THE SECOND ORDER AND NOT TO THE FIRST, THAT DEFECT WAS OF
SUCH A TECHNICAL NATURE THAT THE COURT OF APPEALS SHOULD HAVE
DISREGARDED IT IN ACCORDANCE WITH THE POLICY EXPRESSED BY CONGRESS IN
R.S. SEC. 954, 28 U.S.C. (1946 ED.)  SEC.  777.  FN6 

THE MANDATE OF THAT STATUTE IS FOR A COURT TO DISREGARD NICETIES OF
FORM AND TO GIVE JUDGMENT AS THE RIGHT OF THE CAUSE SHALL APPEAR TO IT.
IT SEEMS TO US HYPERTECHNICAL TO SAY THAT THE APPEAL PAPERS DID NOT
BRING THE SOLE ISSUE OF THE CASE FAIRLY BEFORE THE COURT OF APPEALS. 
THUS THE ASSIGNMENTS OF ERROR FRAMED IN THE APPEAL ATTACKED THE BASIS
OF THE FIRST ORDER AS WELL AS THE SECOND.  WHAT APPELLANT SOUGHT TO
HAVE REVIEWED WAS PLAIN.  THE FAILURE TO USE THE WORDS AUGUST 5, 1946,
IF THAT BE TAKEN AS THE DATE OF THE FINAL DECISION, WAS AS
INSUBSTANTIAL AS A MISSPELLING OF THE WORDS WOULD HAVE BEEN, SINCE THE
WORDS USED IDENTIFIED THE RULINGS WHICH WERE CHALLENGED, AND IN NO WAY
ALTERED THE SCOPE OF REVIEW.  CF. R.F.C. V. PRUDENCE GROUP, 311 U.S.
579, 582; GEORGIA LUMBER CO. V. COMPANIA, 323 U.S. 334, 336. 

II.  THE RULING OF THE DISTRICT COURT THAT THE PROVISIONS OF SEC. 2
OF THE SUITS IN ADMIRALTY ACT, DIRECTING WHERE SUITS SHALL BE BROUGHT,
FN7  WERE JURISDICTIONAL WAS IN OUR VIEW ERRONEOUS.  THOSE PROVISIONS
PROPERLY CONSTRUED RELATE TO VENUE. 

THE SECTION RELATES NOT TO LIBELS IN REM BUT TO LIBELS IN PERSONAM. 
A SIMILAR PROVISION IN SEC. 5 OF THE TUCKER ACT (24 STAT. 506, 28
U.S.C. (1946 ED.)  SEC.  762, 28 U.S.C. SEC. 1402), WAS HELD TO
PRESCRIBE VENUE AND HENCE COULD BE AND WAS WAIVED BY FAILURE TO OBJECT
BEFORE PLEADING TO THE MERITS.  UNITED STATES V. HVOSLEF, 237 U.S. 1,
11-12; THAMES & MERSEY INS. CO. V. UNITED STATES, 237 U.S. 19, 24.  AN
ANALOGOUS PROVISION IN THE JONES ACT, 41 STAT. 1007, 46 U.S.C. SEC.
688, WAS CONSTRUED THE SAME WAY.  PANAMA R. CO. V. JOHNSON, 264 U.S.
375, 384-385.  AND WE RECENTLY INDICATED THAT THAT WAS THE CORRECT
CONSTRUCTION OF COMPARABLE PROVISIONS OF SEC. 2 OF THE PUBLIC VESSELS
ACT, 43 STAT. 1112, 46 U.S.C. SEC. 782(CANADIAN AVIATOR, LTD. V. UNITED
STATES, 324 U.S. 215, 224), AN ACT WHICH IS SIMILIAR IN PURPOSE AND
DESIGN TO THE PRESENT ONE.  SEE AMERICAN STEVEDORES V. PORELLO, 330
U.S. 446, 452-453. 

CONGRESS, BY DESCRIBING THE DISTRICT WHERE THE SUIT WAS TO BE
BROUGHT, WAS NOT INVESTING THE FEDERAL COURTS "WITH A GENERAL
JURISDICTION EXPRESSED IN TERMS APPLICABLE ALIKE TO ALL OF THEM."  SEE
PANAMA R. CO. V. JOHNSON, SUPRA, P. 384.  IT WAS DEALING WITH THE
CONVENIENCE OF THE PARTIES IN SUING OR BEING SUED AT THE DESIGNATED
PLACES.  THE PURPOSE OF THE ACT WAS TO GRANT SEAMEN RELIEF AGAINST THE
UNITED STATES IN ITS OWN COURTS.  THE CONCEPTS OF RESIDENCE AND
PRINCIPAL PLACE OF BUSINESS OBVIOUSLY CAN HAVE NO RELEVANCE WHEN
APPLIED TO THE UNITED STATES.  IT IS UBIQUITOUS THROUGHOUT THE LAND
AND, UNLIKE PRIVATE PARTIES, IS NOT CENTERED AT ONE PARTICULAR PLACE. 
THE RESIDENCE OR PRINCIPAL PLACE OF BUSINESS OF THE LIBELANT AND THE
PLACE WHERE THE VESSEL OR CARGO IS FOUND MAY BE THE BEST MEASURE OF THE
CONVENIENCE OF THE PARTIES.  BUT IF THE UNITED STATES IS WILLING TO
DEFEND IN A DIFFERENT PLACE, WE FIND NOTHING IN THE ACT TO PREVENT IT. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  THE UNITED STATES MARITIME COMMISSION NOW STANDS IN ITS SHOES. 
SEE 60 STAT. 501. 

FN2  OTHER PARTIES WERE ALSO SUED BUT THEY WERE DISMISSED FROM THE
CASE. 

FN3  SECTION 2 OF THAT ACT PROVIDES IN PART: 

"THAT 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 SUCH CORPORATION, AS THE CASE MAY BE,
PROVIDED THAT SUCH VESSEL IS EMPLOYED AS A MERCHANT VESSEL OR IS A TUG
BOAT 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.  ...  UPON APPLICATION OF EITHER PARTY
THE CAUSE MAY, IN THE DISCRETION OF THE COURT, BE TRANSFERRED TO ANY
OTHER DISTRICT COURT OF THE UNITED STATES." 

FN4  THE RECORD SHOWS THE PETITIONER'S RESIDENCE WAS IN OREGON. 

FN5  THIS IS THE KIND OF PROBLEM WHICH COULD BE APPROPRIATELY HANDLED
THROUGH THE RULE MAKING AUTHORITY OF THE COURT OF APPEALS.  CF.
COMMISSIONER V. BEDFORD, 325 U.S. 283, 288. 

FN6  THAT SECTION READS AS FOLLOWS: 

"NO SUMMONS, WRIT, DECLARATION, RETURN, PROCESS, JUDGMENT, OR OTHER
PROCEEDINGS IN CIVIL CAUSES, IN ANY COURT OF THE UNITED STATES, SHALL
BE ABATED, ARRESTED, QUASHED, OR REVERSED FOR ANY DEFECT OR WANT OF
FORM; BUT SUCH COURT SHALL PROCEED AND GIVE JUDGMENT ACCORDING AS THE
RIGHT OF THE CAUSE AND MATTER IN LAW SHALL APPEAR TO IT, WITHOUT
REGARDING ANY SUCH DEFECT, OR WANT OF FORM, EXCEPT THOSE WHICH, IN
CASES OF DEMURRER, THE PARTY DEMURRING SPECIALLY SETS DOWN, TOGETHER
WITH HIS DEMURRER, AS THE CAUSE THEREOF; AND SUCH COURT SHALL AMEND
EVERY SUCH DEFECT AND WANT OF FORM, OTHER THAN THOSE WHICH THE PARTY
DEMURRING SO EXPRESSES; AND MAY AT ANY TIME PERMIT EITHER OF THE
PARTIES TO AMEND ANY DEFECT IN THE PROCESS OR PLEADINGS, UPON SUCH
CONDITIONS AS IT SHALL, IN ITS DISCRETION AND BY ITS RULES,
PRESCRIBE." 

AFTER THE DISMISSAL OF THE APPEAL IN THIS CASE, THE FOREGOING SECTION
WAS REPEALED, EFFECTIVE SEPTEMBER 1, 1948.  62 STAT. 992, SEC. 39.  AND
SEE REVISION OF TITLE 28, U.S. CODE, H. REP. NO. 308, 80TH CONG., 1ST
SESS., P. A 239.  BUT THE POLICY EXPRESSED IN SEC. 954 WAS PRESERVED AS
RESPECTS CASES PENDING AT THE TIME OF THE REPEAL, SINCE THE REPEALING
STATUTE PROVIDES THAT "ANY RIGHTS OR LIABILITIES NOW EXISTING UNDER
SUCH SECTIONS OR PARTS THEREOF SHALL NOT BE AFFECTED BY THIS REPEAL." 
AND SEE RULES 1, 15, 61, AND 81, RULES OF CIVIL PROCEDURE. 

FN7  SEE NOTE 3, SUPRA.
..END :
















MACDOUGALL V. GREEN, 335 U.S. 281 


NO. 348.  ARGUED OCTOBER 18, 1948.  - DECIDED OCTOBER 21, 1948.  - 80
F.SUPP.  725, AFFIRMED. 


THE ILLINOIS ELECTION CODE, ILL. REV. STAT., C. 46, SEC. 10 - 2,
REQUIRES THAT A PETITION TO FORM, AND TO NOMINATE CANDIDATES FOR, A NEW
POLITICAL PARTY BE SIGNED BY AT LEAST 25,000 QUALIFIED VOTERS,
INCLUDING AT LEAST 200 FROM EACH OF AT LEAST 50 OF THE 102 COUNTIES IN
THE STATE.  ALLEGING THAT 52% OF THE STATE'S REGISTERED VOTERS RESIDE
IN COOK COUNTY ALONE, 87% IN THE 49 MOST POPULOUS COUNTIES, AND ONLY
13% IN THE 53 LEAST POPULOUS COUNTIES, APPELLANTS SUED TO ENJOIN
ENFORCEMENT OF THE REQUIREMENT OF AT LEAST 200 SIGNATURES FROM EACH OF
AT LEAST 50 COUNTIES.  HELD:  THIS REQUIREMENT DOES NOT VIOLATE THE DUE
PROCESS, EQUAL-PROTECTION OR PRIVILEGES-AND-IMMUNITIES CLAUSE OF THE
FOURTEENTH AMENDMENT, ART. I, SEC. 2 OR SEC. 4, ART. II, SEC. 1, OR THE
SEVENTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES.  PP.
282-284. 

MACDOUGALL ET AL. V. GREEN, GOVERNOR OF ILLINOIS, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS, EASTERN DIVISION. 

IN A SUIT TO ENJOIN ENFORCEMENT OF ILL. REV. STAT., C. 46, SEC. 10 -
2, THE DISTRICT COURT FOUND WANT OF JURISDICTION AND DENIED THE
INJUNCTION.  80 F.SUPP.  725.  ON APPEAL TO THIS COURT, AFFIRMED, P.
284. 

PER CURIAM. 

THIS ACTION WAS BROUGHT BEFORE A THREE-JUDGE COURT CONVENED IN THE
NORTHERN DISTRICT OF ILLINOIS UNDER 28 U.S.C. SEC. 2281 AND SEC. 2284. 
THE OBJECT OF THE ACTION IS AN INJUNCTION AGAINST THE ENFORCEMENT OF A
PROVISION WHICH, IN 1935, WAS ADDED TO A STATUTE OF ILLINOIS AND WHICH
REQUIRES THAT A PETITION TO FORM AND TO NOMINATE CANDIDATES FOR A NEW
POLITICAL PARTY BE SIGNED BY AT LEAST 25,000 QUALIFIED VOTERS,
"PROVIDED, THAT INCLUDED IN THE AGGREGATE TOTAL OF TWENTY-FIVE THOUSAND
(25,000) SIGNATURES ARE THE SIGNATURES OF TWO HUNDRED (200) QUALIFIED
VOTERS FROM EACH OF AT LEAST FIFTY (50) COUNTIES WITHIN THE STATE." 
ILL. REV. STAT. C. 46, SEC. 10 - 2(1947).  APPELLANTS ARE THE
"PROGRESSIVE PARTY," ITS NOMINEES FOR UNITED STATES SENATOR,
PRESIDENTIAL ELECTORS, AND STATE OFFICES, AND SEVERAL ILLINOIS VOTERS. 
APPELLEES ARE THE GOVERNOR, THE AUDITOR OF PUBLIC ACCOUNTS, AND THE
SECRETARY OF STATE OF ILLINOIS, MEMBERS OF THE BOARDS OF ELECTION
COMMISSIONERS OF VARIOUS CITIES, AND THE COUNTY CLERKS OF VARIOUS
COUNTIES.  THE DISTRICT COURT FOUND WANT OF JURISDICTION AND DENIED THE
INJUNCTION.  80 F.SUPP.  725.  APPELLANTS INVOKE THE JURISDICTION OF
THIS COURT UNDER 28 U.S.C. SEC. 1253. 

THE ACTION ARISES FROM THE FINDING OF THE STATE OFFICERS ELECTORAL
BOARD THAT APPELLANTS HAD NOT OBTAINED THE REQUISITE NUMBER OF
SIGNATURES FROM THE REQUISITE NUMBER OF COUNTIES AND ITS CONSEQUENT
RULING THAT THEIR NOMINATING PETITION WAS "NOT SUFFICIENT IN LAW TO
ENTITLE THE SAID CANDIDATES' NAMES TO APPEAR ON THE BALLOT."  THE
APPELLANTS' CLAIM TO EQUITABLE RELIEF AGAINST THIS RULING IS BASED UPON
THE PECULIAR DISTRIBUTION OF POPULATION AMONG ILLINOIS' 102 COUNTIES. 
THEY ALLEGE THAT 52% OF THE STATE'S REGISTERED VOTERS ARE RESIDENTS OF
COOK COUNTY ALONE, 87% ARE RESIDENTS OF THE 49 MOST POPULOUS COUNTIES,
AND ONLY 13% RESIDE IN THE 53 LEAST POPULOUS COUNTIES.  UNDER THESE
CIRCUMSTANCES, THEY SAY, THE ILLINOIS STATUTE IS SO DISCRIMINATORY IN
ITS APPLICATION AS TO AMOUNT TO A VIOLATION OF THE DUE-PROCESS, EQUAL
PROTECTION, AND PRIVILEGES-AND-IMMUNITIES CLAUSES OF THE FOURTEENTH
AMENDMENT, AS WELL AS ARTICLE I, SECS. 2 AND 4, ARTICLE II, SEC. 1, AND
THE SEVENTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. 

IT IS CLEAR THAT THE REQUIREMENT OF TWO HUNDRED SIGNATURES FROM AT
LEAST FIFTY COUNTIES GIVES TO THE VOTERS OF THE LESS POPULOUS COUNTIES
OF ILLINOIS THE POWER COMPLETELY TO BLOCK THE NOMINATION OF CANDIDATES
WHOSE SUPPORT IS CONFINED TO GEOGRAPHICALLY LIMITED AREAS.  BUT THE
STATE IS ENTITLED TO DEEM THIS POWER NOT DISPROPORTIONATE:  OF 25,000
SIGNATURES REQUIRED, ONLY 9,800, OR 39%, NEED BE DISTRIBUTED; THE
REMAINING 61% MAY BE OBTAINED FROM A SINGLE COUNTY.  AND COOK COUNTY,
THE LARGEST, CONTAINS NOT MORE THAN 52% OF THE STATE'S VOTERS.  IT IS
ALLOWABLE STATE POLICY TO REQUIRE THAT CANDIDATES FOR STATE-WIDE OFFICE
SHOULD HAVE SUPPORT NOT LIMITED TO A CONCENTRATED LOCALITY.  THIS IS
NOT A UNIQUE POLICY.  SEE NEW YORK LAWS 1896, C. 909, SEC. 57, NOW N.Y.
ELEC.  LAW SEC. 137(4); 113 LAWS OF OHIO 349, GEN. CODE SEC. 4785
91(1929), NOW OHIO CODE ANN. (CUM. SUPP. 1947) SEC. 4785-91; MASS.
ACTS, 1943, C. 334, SEC. 2, NOW MASS. ANN. LAWS C. 53, SEC. 6(1945). 
TO ASSUME THAT POLITICAL POWER IS A FUNCTION EXCLUSIVELY OF NUMBERS IS
TO DISREGARD THE PRACTICALITIES OF GOVERNMENT.  THUS, THE CONSTITUTION
PROTECTS THE INTERESTS OF THE SMALLER AGAINST THE GREATER BY GIVING IN
THE SENATE ENTIRELY UNEQUAL REPRESENTATION TO POPULATIONS.  IT WOULD BE
STRANGE INDEED, AND DOCTRINAIRE, FOR THIS COURT, APPLYING SUCH BROAD
CONSTITUTIONAL CONCEPTS AS DUE PROCESS AND EQUAL PROTECTION OF THE
LAWS, TO DENY A STATE THE POWER TO ASSURE A PROPER DIFFUSION OF
POLITICAL INITIATIVE AS BETWEEN ITS THINLY POPULATED COUNTIES AND THOSE
HAVING CONCENTRATED MASSES, IN VIEW OF THE FACT THAT THE LATTER HAVE
PRACTICAL OPPORTUNITIES FOR EXERTING THEIR POLITICAL WEIGHT AT THE
POLLS NOT AVAILABLE TO THE FORMER.  THE CONSTITUTION - A PRACTICAL
INSTRUMENT OF GOVERNMENT - MAKES NO SUCH DEMANDS ON THE STATES. 
COLEGROVE V. GREEN, 328 U.S. 549, AND COLEGROVE V. BARRETT, 330 U.S.
804. 

ON THE RECORD BEFORE US, WE NEED NOT PASS UPON PURELY LOCAL
QUESTIONS, ALSO URGED BY APPELLANTS, HAVING NO FEDERAL CONSTITUTIONAL
ASPECT.  JUDGMENT AFFIRMED. 

MR. JUSTICE RUTLEDGE. 

IN ITS FACTS AND LEGAL ISSUES THIS CASE IS CLOSELY ANALOGOUS TO
COLEGROVE V. GREEN, 328 U.S. 549.  IT PRESENTS SERIOUS CONSTITUTIONAL
QUESTIONS CRUCIAL TO THE VALIDITY OF ILLINOIS ELECTION PROCEDURES AND
THEIR APPLICATION TO THE IMMINENTLY IMPENDING GENERAL ELECTION.  THAT A
BARE MAJORITY OF THIS COURT RESOLVE THEM ONE WAY AND THREE OTHERS HOLD
OPPOSING VIEWS ONLY EMPHASIZES THEIR SUBSTANTIAL CHARACTER AND SUPREME
IMPORTANCE.  THESE QUALITIES ARE NOT DIMINISHED BY THE FACT THAT THE
ATTORNEY GENERAL OF ILLINOIS, APPEARING FOR THE THREE MEMBERS OF THE SO
CALLED "STATE CERTIFYING BOARD,"  FN1  HAS CONCEDED IN HIS BRIEF THE
VALIDITY OF APPELLANTS' POSITION AND AT THE BAR OF THIS COURT HAS
CONFESSED ERROR IN THE DECISION OF THE DISTRICT COURT.  NOR IS IT
INSIGNIFICANT OR IRRELEVANT THAT THE APPLICATION OF THE STATUTORY
PROCEDURES MADE BY THE STATE OFFICIALS IN PRACTICAL EFFECT DENIES TO A
SUBSTANTIAL BODY OF QUALIFIED VOTERS THE RIGHT TO EXERCISE THEIR
SUFFRAGE IN BEHALF OF CANDIDATES OF THEIR CHOICE. 

FORCED BY THE EXIGENCIES OF THEIR SITUATION, APPELLANTS HAVE INVOKED
FEDERAL EQUITY JURISDICTION IN VINDICATION OF THEIR RIGHTS.  THEY SEEK
INJUNCTIVE RELIEF, IN EFFECT, TO COMPEL PLACING THE NAMES OF THEIR
CANDIDATES UPON THE BALLOT FOR THE GENERAL ELECTION TO BE HELD ON
NOVEMBER 2.  FOR PRESENT PURPOSES WE MAY ASSUME THAT APPELLANTS HAVE
ACTED WITH ALL POSSIBLE DISPATCH.  EVEN SO, WE FIND OURSELVES
CONFRONTED ON THE EVE OF THE ELECTION WITH THE ALTERNATIVES OF DENYING
THE RELIEF SOUGHT OR OF DIRECTING THE ISSUANCE OF AN INJUNCTION. 

THIS CHOICE, IN MY OPINION, PRESENTS THE CRUCIAL QUESTION AND THE
ONLY ONE NECESSARILY OR PROPERLY NOW TO BE DECIDED.  BEYOND THE
CONSTITUTIONAL QUESTIONS IT POSES DELICATE PROBLEMS CONCERNING THE
PROPRIETY OF GRANTING THE RELIEF IN THE PREVAILING CIRCUMSTANCES.  EVEN
IF WE ASSUME THAT APPELLANTS' CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED,
THE QUESTIONS ARISE WHETHER, IN THOSE CIRCUMSTANCES, THE EQUITY ARM OF
THE FEDERAL COURTS CAN NOW BE EXTENDED TO GIVE EFFECTIVE RELIEF; AND
WHETHER THE RELIEF, IF GIVEN, MIGHT NOT DO MORE HARM THAN GOOD, MIGHT
NOT INDEED EITHER DISRUPT THE ILLINOIS ELECTION ALTOGETHER OR
DISFRANCHISE MORE PERSONS THAN HAVE BEEN DISFRANCHISED BY THE
APPLICATION OF THE QUESTIONED ILLINOIS PROCEDURES. 

EVERY REASON EXISTING IN COLEGROVE V. GREEN, SUPRA, WHICH SEEMED TO
ME COMPELLING TO REQUIRE THIS COURT TO DECLINE TO EXERCISE ITS EQUITY
JURISDICTION AND TO DECIDE THE CONSTITUTIONAL QUESTIONS IS PRESENT
HERE.  SEE THE OPINION CONCURRING IN THE RESULT, 328 U.S. AT 564. 
INDEED THE CIRCUMSTANCES ARE MORE EXIGENT AND THEREFORE MORE COMPELLING
TO THAT CONCLUSION. 

WE ARE ON THE EVE OF THE NATIONAL ELECTION.  BUT TWELVE DAYS REMAIN. 
NECESSARILY SOME OF THESE WOULD BE CONSUMED IN REMANDING THE CAUSE TO
THE DISTRICT COURT AND IN ITS CONSIDERATION, FORMULATION AND ISSUANCE
OF AN INJUNCTION IN ESSENTIALLY SPECIFIC TERMS.  THE BALLOTS, AS
CERTIFIED BY THE STATE OFFICIALS, ARE IN PROCESS OF PRINTING AND
DISTRIBUTION.  ABSENTEE BALLOTS HAVE BEEN DISTRIBUTED.  ILLINOIS IS ONE
OF THE MORE POPULOUS STATES.  MILLIONS OF BALLOTS WILL BE REQUIRED, NOT
ONLY IN THE STATE BUT IN COOK COUNTY ALONE.  IT IS TRUE THAT, ON THE
SHORT RECORD BEFORE US AND IN THE NECESSARILY BRIEF TIME AVAILABLE FOR
PREPARING BOTH THE RECORD AND THE BRIEFS, APPELLEES WHO OPPOSE GRANTING
THE RELIEF HAVE NOT MADE AN ABSOLUTELY CONCLUSIVE FACTUAL SHOWING THAT
NEW BALLOTS, CONTAINING THE NAMES OF APPELLANTS' CANDIDATES, COULD NOT
POSSIBLY BE PRINTED AND DISTRIBUTED FOR USE AT THE ELECTION.  BUT THEY
SUGGEST WITH GOOD REASON THAT THIS COULD NOT BE DONE.  THE TASK WOULD
BE GIGANTIC.  EVEN WITH THE MOBILIZATION OF EVERY POSSIBLE RESOURCE, IT
IS GRAVELY DOUBTFUL THAT IT COULD BE ACCOMPLISHED.  THE RISK WOULD BE
VERY LARGE THAT IT COULD NOT BE DONE.  EVEN IF IT COULD FOR ALL EXCEPT
ABSENTEE VOTERS, THEY WOULD BE DISFRANCHISED.  ISSUANCE OF THE
INJUNCTION SOUGHT WOULD INVALIDATE THE BALLOTS ALREADY PREPARED,
INCLUDING THE ABSENTEE BALLOTS, AND THOSE NOW IN COURSE OF
PREPARATION. 

THE SUM OF THESE CONSIDERATIONS, WITHOUT REGARD TO OTHERS NOT NOW
NECESSARY TO STATE, FORCES ME TO CONCLUDE THAT THE RELIEF SOUGHT COULD
BE HAD AT THIS LATE STAGE IN THE ELECTORAL PROCESS ONLY AT THE GRAVEST
RISK OF DISRUPTING THAT PROCESS COMPLETELY IN ILLINOIS OR OF
DISFRANCHISING ILLINOIS VOTERS IN PERHAPS MUCH GREATER NUMBERS THAN
THOSE WHOSE INTERESTS APPELLANTS REPRESENT.  THAT IS A RISK WHICH, IN
MY JUDGMENT, FEDERAL COURTS OF EQUITY SHOULD NOT UNDERTAKE AND INDEED
ARE NOT FREE TO UNDERTAKE WITHIN THE HISTORIC LIMITS OF THEIR EQUITY
JURISDICTION. 

ACCORDINGLY, I EXPRESS NO OPINION CONCERNING THE CONSTITUTIONAL AND
OTHER QUESTIONS PRESENTED.  AS IN COLEGROVE V. GREEN, SUPRA, I THINK
THE CASE IS ONE IN WHICH, FOR THE REASONS STATED, THIS COURT MAY
PROPERLY, AND SHOULD, DECLINE TO EXERCISE ITS JURISDICTION IN EQUITY. 
ACCORDINGLY, BUT SOLELY FOR THIS REASON, I AGREE THAT THE JUDGMENT
REFUSING INJUNCTIVE RELIEF SHOULD BE AFFIRMED. 

FN1  THE STATE CERTIFYING BOARD IS COMPOSED OF THE GOVERNOR, THE
AUDITOR OF PUBLIC ACCOUNTS AND THE SECRETARY OF STATE, AND PETITIONS
FOR THE FORMATION OF NEW STATE-WIDE POLITICAL PARTIES ARE FILED WITH
THIS BOARD.  (ILL. REV. STAT. C. 46(1947) SECS. 10 - 2, 10 - 4.)  ON
THE FILING OF TIMELY OBJECTION TO SUCH PETITIONS, THE CERTIFYING BOARD
TRANSMITS THE PETITIONS AND THE OBJECTIONS TO THE STATE OFFICERS
ELECTORAL BOARD, WHICH IS NOT A PARTY TO THIS ACTION.  AFTER PASSING ON
THE OBJECTION, THE STATE OFFICERS ELECTORAL BOARD INFORMS THE STATE
CERTIFYING BOARD OF ITS RULING, AND THE CERTIFYING BOARD IS REQUIRED TO
"ABIDE BY AND COMPLY WITH THE RULING SO MADE TO ALL INTENTS AND
PURPOSES."  (ILL. REV. STAT. C. 46(1947) SEC. 10 - 10.)  WHERE
OBJECTION IS NOT MADE, OR WHERE IT IS MADE AND OVERRULED, THE NEW PARTY
AND THE NAMES OF ITS CANDIDATES ARE CERTIFIED BY THE STATE CERTIFYING
BOARD TO THE SEVERAL COUNTY CLERKS; THE CLERKS OR THE LOCAL BOARDS OF
ELECTION COMMISSIONERS, BOTH GROUPS BEING PARTIES TO THIS ACTION,
THEREUPON ARE REQUIRED TO PRINT BALLOTS CONTAINING THE NAMES OF THE
CANDIDATES THUS CERTIFIED.  (ILL. REV. STAT. C. 46(1947) SEC. 10 -
14.) 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY CONCUR, DISSENTING. 

I THINK THAT THE 1935 AMENDMENT OF THE ILLINOIS ELECTION CODE, ILL.
REV. STAT. C. 46, SEC. 10-2(1947), AS CONSTRUED AND APPLIED IN THIS
CASE, VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT. 

THAT STATUTE REQUIRES THE NOMINATING PETITION OF A NEW POLITICAL
PARTY, WHICH PLACES CANDIDATES ON THE BALLOT FOR THE GENERAL ELECTION,
TO CONTAIN 200 SIGNATURES FROM EACH OF AT LEAST 50 OF THE 102 COUNTIES
IN THE STATE.  THE STATUTE DOES NOT ATTEMPT TO MAKE THE REQUIRED
SIGNATURES PROPORTIONATE TO THE POPULATION OF EACH COUNTY.  ONE EFFECT
OF THIS REQUIREMENT IS THAT THE ELECTORATE IN 49 OF THE COUNTIES WHICH
CONTAIN 87% OF THE REGISTERED VOTERS COULD NOT FORM A NEW POLITICAL
PARTY AND PLACE ITS CANDIDATES ON THE BALLOT.  TWENTY-FIVE THOUSAND OF
THE REMAINING 13% OF REGISTERED VOTERS, HOWEVER, PROPERLY DISTRIBUTED
AMONG THE 53 REMAINING COUNTIES COULD FORM A NEW PARTY TO ELECT
CANDIDATES TO OFFICE.  THAT REGULATION THUS DISCRIMINATES AGAINST THE
RESIDENTS OF THE POPULOUS COUNTIES OF THE STATE IN FAVOR OF RURAL
POLITICAL RIGHTS IS ENTITLED UNDER THE FOURTEENTH AMENDMENT. 

FREE AND HONEST ELECTIONS ARE THE VERY FOUNDATION OF OUR REPUBLICAN
FORM OF GOVERNMENT.  WE ARE DEALING HERE WITH IMPORTANT POLITICAL
RIGHTS OF THE PEOPLE - THE VOTING FOR ELECTORS PROVIDED BY ARTICLE II,
SEC. 1, OF THE CONSTITUTION; THE RIGHT OF THE PEOPLE TO ELECT SENATORS,
GUARANTEED BY THE SEVENTEENTH AMENDMENT; THE RIGHT OF THE PEOPLE TO
CHOOSE THEIR REPRESENTATIVES IN CONGRESS, GUARANTEED BY ARTICLE I, SEC.
2, OF THE CONSTITUTION.  DISCRIMINATION AGAINST ANY GROUP OR CLASS OF
CITIZENS IN THE EXERCISE OF THESE CONSTITUTIONALLY PROTECTED RIGHTS OF
CITIZENSHIP DEPRIVES THE ELECTORAL PROCESS OF INTEGRITY.  THE
PROTECTION WHICH THE CONSTITUTION GIVES VOTING RIGHTS COVERS NOT ONLY
THE GENERAL ELECTION BUT ALSO EXTENDS TO EVERY INTEGRAL PART OF THE
ELECTORAL PROCESS, INCLUDING PRIMARIES.  UNITED STATES V. CLASSIC, 313
U.S. 299; SMITH V. ALLWRIGHT, 321 U.S. 649.  WHEN CANDIDATES ARE CHOSEN
FOR THE GENERAL ELECTION BY A NOMINATING PETITION, THAT PROCEDURE ALSO
BECOMES AN INTEGRAL PART OF THE ELECTORAL PROCESS.  IT IS ENTITLED TO
THE SAME PROTECTION AS THAT WHICH THE FOURTEENTH AMENDMENT GRANTS ANY
OTHER PART.    NONE WOULD DENY THAT A STATE LAW GIVING SOME CITIZENS
TWICE THE VOTE OF OTHER CITIZENS IN EITHER THE PRIMARY OR GENERAL
ELECTION WOULD LACK THAT EQUALITY WHICH THE FOURTEENTH AMENDMENT
GUARANTEES.  SEE NIXON V. HERNDON, 273 U.S. 536.  THE DILUTION OF
POLITICAL RIGHTS MAY BE AS COMPLETE AND EFFECTIVE IF THE SAME
DISCRIMINATION APPEARS IN THE PROCEDURE PRESCRIBED FOR NOMINATING
PETITIONS.  SEE STATE V. JUNKIN, 85 NEB. 1, 122 N.W. 473.  IT WOULD, OF
COURSE, BE PALPABLY DISCRIMINATORY IN VIOLATION OF THE EQUAL PROTECTION
CLAUSE IF THIS LAW WERE AIMED AT THE PROGRESSIVE PARTY IN THE MANNER
THAT THE STATE LAW IN NIXON V. HERNDON, SUPRA, WAS AIMED AT NEGROES. 
BUT THE EFFECT OF A STATE LAW MAY BRING IT UNDER THE CONDEMNATION OF
THE EQUAL PROTECTION CLAUSE HOWEVER INNOCENT ITS PURPOSE.  IT IS
INVALID IF DISCRIMINATION IS APPARENT IN ITS OPERATION.  THE TEST IS
WHETHER IT HAS SOME FOUNDATION IN EXPERIENCE, PRACTICALITY, OR
NECESSITY.  SEE SKINNER V. OKLAHOMA, 316 U.S. 535, 541-542. 

IT IS NOT ENOUGH TO SAY THAT THIS LAW CAN STAND THAT TEST BECAUSE IT
IS DESIGNED TO REQUIRE STATEWIDE SUPPORT FOR THE LAUNCHING OF A NEW
POLITICAL PARTY RATHER THAN SUPPORT FROM A FEW LOCALITIES.  THERE IS NO
ATTEMPT HERE, AS I HAVE SAID, TO MAKE THE REQUIRED SIGNATURES EVEN
APPROXIMATELY PROPORTIONATE TO THE DISTRIBUTION OF VOTERS AMONG THE
VARIOUS COUNTIES OF THE STATE.  NO SUCH PROPORTIONATE ALLOCATION COULD
OF COURSE BE MATHEMATICALLY EXACT.  NOR WOULD IT BE REQUIRED.  BUT
WHEN, AS HERE, THE LAW APPLIES A RIGID, ARBITRARY FORMULA TO SPARSELY
SETTLED COUNTIES AND POPULOUS COUNTIES ALIKE, IT OFFERS NO BASIS
WHATEVER TO JUSTIFY GIVING GREATER WEIGHT TO THE INDIVIDUAL VOTES OF
ONE GROUP OF CITIZENS THAN TO THOSE OF ANOTHER GROUP.  THIS LEGISLATION
THEREFORE HAS THE SAME INHERENT INFIRMITY AS THAT WHICH SOME OF US SAW
IN COLEGROVE V. GREEN, 328 U.S. 549, 569.  THE FACT THAT THE
CONSTITUTION ITSELF SANCTIONS INEQUALITIES IN SOME PHASES OF OUR
POLITICAL SYSTEM N1 DOES NOT JUSTIFY US IN ALLOWING A STATE TO CREATE
ADDITIONAL ONES.  THE THEME OF THE CONSTITUTION IS EQUALITY AMONG
CITIZENS IN THE EXERCISE OF THEIR POLITICAL RIGHTS.  THE NOTION THAT
ONE GROUP CAN BE GRANTED GREATER VOTING STRENGTH THAN ANOTHER IS
HOSTILE TO OUR STANDARDS FOR POPULAR REPRESENTATIVE GOVERNMENT. 

FEDERAL COURTS SHOULD BE MOST HESITANT TO USE THE INJUNCTION IN STATE
ELECTIONS.  SEE WILSON V. NORTH CAROLINA, 169 U.S. 586, 596.  IF
FEDERAL COURTS UNDERTOOK THE ROLE OF SUPERINTENDENCE, DISRUPTION OF THE
WHOLE ELECTORAL PROCESS MIGHT RESULT, AND THE ELECTIVE SYSTEM THAT IS
VITAL TO OUR GOVERNMENT MIGHT BE PARALYZED.  CF. JOHNSON V. STEVENSON,
170 F.2D 108.  THE EQUITY COURT, MOREOVER, MUST ALWAYS BE ALERT IN THE
EXERCISE OF ITS DISCRETION TO MAKE SURE THAT ITS DECREE WILL NOT BE A
FUTILE AND INEFFECTIVE THING.  BUT THE CASE, AS MADE BEFORE US, DOES
NOT INDICATE THAT EITHER OF THOSE CONSIDERATIONS SHOULD DETER US IN
STRIKING DOWN THIS UNCONSTITUTIONAL STATUTE AND IN FREEING THE
IMPENDING ILLINOIS ELECTION OF ITS IMPEDIMENTS.  THE STATE OFFICIALS
WHO ARE RESPONSIBLE FOR THE ELECTION AND WHO AT THIS BAR CONFESSED
ERROR IN THE DECISION OF THE DISTRICT COURT MAKE NO SUCH INTIMATION OR
SUGGESTION.  WE ARE THEREFORE NOT AUTHORIZED TO ASSUME THAT OUR DECREE
WOULD INTERFERE WITH THE ORDERLY PROCESS OF THE ELECTION. 

FN1  THE FEDERALIST NO. 62 EXPLAINED THE EQUALITY OF REPRESENTATION
OF THE STATES IN THE SENATE AS FOLLOWS:  "IF INDEED IT BE RIGHT, THAT
AMONG A PEOPLE THOROUGHLY INCORPORATED INTO ONE NATION, EVERY DISTRICT
OUGHT TO HAVE A PROPORTIONAL SHARE IN THE GOVERNMENT, AND THAT AMONG
INDEPENDENT AND SOVEREIGN STATES, BOUND TOGETHER BY A SIMPLE LEAGUE,
THE PARTIES, HOWEVER UNEQUAL IN SIZE, OUGHT TO HAVE AN EQUAL SHARE IN
THE COMMON COUNCILS, IT DOES NOT APPEAR TO BE WITHOUT SOME REASON THAT
IN A COMPOUND REPUBLIC, PARTAKING BOTH OF THE NATIONAL AND FEDERAL
CHARACTER, THE GOVERNMENT OUGHT TO BE FOUNDED ON A MIXTURE OF THE
PRINCIPLES OF PROPORTIONAL AND EQUAL REPRESENTATION. 

     .         .         .         .         . 

"THE EQUAL VOTE ALLOWED TO EACH STATE IS AT ONCE A CONSTITUTIONAL
RECOGNITION OF THE PORTION OF SOVEREIGNTY REMAINING IN THE INDIVIDUAL
STATES, AND AN INSTRUMENT FOR PRESERVING THAT RESIDUARY SOVEREIGNTY. 
SO FAR THE EQUALITY OUGHT TO BE NO LESS ACCEPTABLE TO THE LARGE THAN TO
THE SMALL STATES; SINCE THEY ARE NOT LESS SOLICITOUS TO GUARD, BY EVERY
POSSIBLE EXPEDIENT, AGAINST AN IMPROPER CONSOLIDATION OF THE STATES
INTO ONE SIMPLE REPUBLIC. 

"ANOTHER ADVANTAGE ACCRUING FROM THIS INGREDIENT IN THE CONSTITUTION
OF THE SENATE IS, THE ADDITIONAL IMPEDIMENT IT MUST PROVE AGAINST
IMPROPER ACTS OF LEGISLATION.  NO LAW OR RESOLUTION CAN NOW BE PASSED
WITHOUT THE CONCURRENCE, FIRST, OF A MAJORITY OF THE PEOPLE, AND THEN,
OF A MAJORITY OF THE STATES." 
..END :

















SHAPIRO V. UNITED STATES, 335 U.S. 1 


NO. 49.  ARGUED OCTOBER 23, 1947.  - DECIDED JUNE 21, 1948.  - 159 F.2D
890, AFFIRMED. 


1.  IN OBEDIENCE TO AN ADMINISTRATIVE SUBPOENA, PETITIONER PRODUCED
SALES RECORDS WHICH HE HAD KEPT AS REQUIRED BY A REGULATION OF THE
PRICE ADMINISTRATOR, BUT CLAIMED CONSTITUTIONAL PRIVILEGE.  IN A
PROSECUTION FOR VIOLATION OF THE EMERGENCY PRICE CONTROL ACT BASED ON
EVIDENCE THUS PRODUCED, HE INTERPOSED A PLEA IN BAR, CLAIMING THAT
UNDER SEC. 202(G) OF THE ACT, WHICH INCORPORATES BY REFERENCE THE
PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF 1893, HIS PRODUCTION OF
THESE RECORDS GAVE HIM IMMUNITY FROM PROSECUTION.  HELD:  THE PLEA IN
BAR WAS PROPERLY OVERRULED BY THE TRIAL COURT.  PP. 3-36. 

2.  THE LANGUAGE OF THE ACT AND ITS LEGISLATIVE HISTORY, VIEWED
AGAINST THE BACKGROUND OF SETTLED JUDICIAL CONSTRUCTION OF THE IMMUNITY
PROVISION, INDICATE THAT CONGRESS REQUIRED RECORDS TO BE KEPT AS A
MEANS OF ENFORCING THE STATUTE AND DID NOT INTEND TO FRUSTRATE THE USE
OF THESE RECORDS FOR ENFORCEMENT ACTION BY GRANTING AN IMMUNITY TO
INDIVIDUALS COMPELLED TO DISCLOSE THEM TO THE ADMINISTRATOR.  PP. 7
32. 

(A)  THE VERY LANGUAGE OF SEC. 202(A) DISCLOSES THAT THE RECORD
KEEPING AND INSPECTION REQUIREMENTS WERE DESIGNED NOT MERELY TO "OBTAIN
INFORMATION" FOR ASSISTANCE IN PRESCRIBING REGULATIONS OR ORDERS UNDER
THE STATUTE, BUT ALSO TO AID IN THEIR ENFORCEMENT.  P. 8. 

(B)  THE LEGISLATIVE HISTORY OF SEC. 202 INDICATES THAT CONGRESS,
WHOSE ATTENTION WAS INVITED BY PROPONENTS OF THE PRICE CONTROL ACT TO
THE VITAL IMPORTANCE OF THE LICENSING, RECORD-KEEPING AND INSPECTION
PROVISIONS IN AIDING EFFECTIVE ENFORCEMENT, DID NOT INTEND SEC. 202(G)
TO PROFFER A "GRATUITY TO CRIME" BY GRANTING IMMUNITY TO CUSTODIANS OF
NON-PRIVILEGED RECORDS.  PP. 8-16. 

(C)  IN VIEW OF THE PREVIOUS CONSTRUCTION GIVEN TO THE COMPULSORY
TESTIMONY ACT OF 1893 BY THIS COURT IN HEIKE V. UNITED STATES, 227 U.S.
131, CONGRESS MUST HAVE INTENDED THE IMMUNITY PROVISO IN THE PRICE
CONTROL ACT TO BE COTERMINOUS WITH WHAT WOULD OTHERWISE HAVE BEEN THE
CONSTITUTIONAL PRIVILEGE OF PETITIONER IN THE CASE AT BAR; AND SINCE HE
COULD ASSERT NO VALID PRIVILEGE AS TO THE REQUIRED RECORDS HERE
INVOLVED, UNDER THE DOCTRINE OF WILSON V. UNITED STATES, 221 U.S. 361,
HE WAS ENTITLED TO NO IMMUNITY UNDER THE STATUTE.  PP. 16-20. 

(D)  THE PRECISE WORDING OF SEC. 202(G) OF THE PRICE CONTROL ACT
INDICATES THAT ITS DRAFTSMEN WENT TO SOME PAINS TO INSURE THAT THE
IMMUNITY PROVIDED FOR WOULD BE CONSTRUED BY THE COURTS AS BEING SO
LIMITED.  PP. 20-22. 

(E)  SINCE THE PRICE CONTROL ACT PROVIDED FOR PRICE REGULATIONS
ENFORCEABLE AGAINST UNINCORPORATED ENTREPRENEURS AS WELL AS CORPORATE
INDUSTRY, IT CANNOT BE ASSUMED THAT CONGRESS INTENDED TO DIFFERENTIATE
SUB SILENTIO, FOR PURPOSES OF THE IMMUNITY PROVISO, BETWEEN RECORDS
REQUIRED TO BE KEPT BY INDIVIDUALS AND THOSE REQUIRED TO BE KEPT BY
CORPORATIONS.  PP. 22-24. 

(F)  SUCH A CONSTRUCTION OF THE IMMUNITY PROVISO DOES NOT RENDER
MEANINGLESS THE PHRASE "ANY REQUIREMENTS" IN THE OPENING CLAUSE OF SEC.
202(G).  PP. 24-29. 

(G)  THE LEGISLATIVE HISTORY OF THE 1893 IMMUNITY PROVISION, WHICH
WAS INCORPORATED INTO THE EMERGENCY PRICE CONTROL ACT, CLEARLY
DISCLOSES THAT THE PROVISION WAS ENACTED MERELY TO PROVIDE AN IMMUNITY
SUFFICIENTLY BROAD TO BE AN ADEQUATE SUBSTITUTE FOR THE CONSTITUTIONAL
PRIVILEGE, IN RESPONSE TO THE RULING BY THIS COURT IN COUNSELMAN V.
HITCHCOCK, 142 U.S. 547.  PP. 28-29. 

(H)  THE CANON OF AVOIDANCE OF CONSTITUTIONAL DOUBTS DOES NOT GOVERN
THE INTERPRETATION OF THE IMMUNITY PROVISION, SINCE ITS APPLICATION TO
THAT CLAUSE WOULD OVERRIDE THE SETTLED JUDICIAL CONSTRUCTION OF SIMILAR
PROVISIONS AND THE LEGISLATIVE HISTORY OF THE COMPULSORY TESTIMONY ACT
OF 1893, AND WOULD FRUSTRATE THE CONGRESSIONAL INTENT MANIFESTED BY THE
LEGISLATIVE HISTORY OF THE EMERGENCY PRICE CONTROL ACT.  PP. 29-35. 

3.  THIS CONSTRUCTION OF SEC. 202(G) OF THE PRICE CONTROL ACT RAISES
NO SERIOUS DOUBTS AS TO ITS CONSTITUTIONALITY.  PP. 32-34. 

(A)  THE PRIVILEGE WHICH EXISTS AS TO PRIVATE PAPERS CANNOT BE
MAINTAINED WHERE THE RECORDS IN QUESTION WERE REQUIRED TO BE MAINTAINED
UNDER APPROPRIATE REGULATION, THEIR RELEVANCE TO THE LAWFUL PURPOSE OF
THE OPA IS UNQUESTIONED, AND THEY RECORD TRANSACTIONS IN WHICH THE
DEALER COULD ENGAGE SOLELY BY VIRTUE OF A LICENSE GRANTED UNDER THE
STATUTE.  PP. 32-35. 

(B)  THE SALES RECORD WHICH PETITIONER WAS REQUIRED TO KEEP AS A
LICENSEE UNDER THE PRICE CONTROL ACT WAS SUCH A RECORD; IT WAS LEGALLY
OBTAINED BY THE ADMINISTRATOR PURSUANT TO THE ACT; AND HENCE IT WAS
AVAILABLE AS EVIDENCE.  PP. 34-35. 

SHAPIRO V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

PETITIONER WAS CONVICTED OF HAVING MADE TIE-IN SALES IN VIOLATION OF
REGULATIONS UNDER THE EMERGENCY PRICE CONTROL ACT, NOTWITHSTANDING A
PLEA IN BAR CLAIMING IMMUNITY FROM PROSECUTION UNDER SEC. 202(G).  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  159 F.2D 890.  THIS COURT GRANTED
CERTIORARI.  331 U.S. 801.  AFFIRMED, P. 36. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS TRIED ON CHARGES OF HAVING MADE TIE-IN SALES IN
VIOLATION OF REGULATIONS UNDER THE EMERGENCY PRICE CONTROL ACT.  FN1  A
PLEA IN BAR, CLAIMING IMMUNITY FROM PROSECUTION BASED ON SEC. 202(G)
FN2  OF THE ACT, WAS OVERRULED BY THE TRIAL JUDGE; JUDGMENT OF
CONVICTION FOLLOWED AND WAS AFFIRMED ON APPEAL.  159 F.2D 890.  A
CONTRARY CONCLUSION WAS REACHED BY THE DISTRICT JUDGE IN UNITED STATES
V. HOFFMAN, POST, P. 77.  BECAUSE THIS CONFLICT INVOLVES AN IMPORTANT
QUESTION OF STATUTORY CONSTRUCTION, THESE CASES WERE BROUGHT HERE AND
HEARD TOGETHER.  ADDITIONAL MINOR CONSIDERATIONS INVOLVED IN THE
HOFFMAN CASE ARE DEALT WITH IN A SEPARATE OPINION. 

THE PETITIONER, A WHOLESALER OF FRUIT AND PRODUCE, ON SEPTEMBER 29,
1944, WAS SERVED WITH A SUBPOENA DUCES TECUM AND AD TESTIFICANDUM,
ISSUED BY THE PRICE ADMINISTRATOR UNDER AUTHORITY OF THE EMERGENCY
PRICE CONTROL ACT.  THE SUBPOENA DIRECTED PETITIONER TO APPEAR BEFORE
DESIGNATED ENFORCEMENT ATTORNEYS OF THE OFFICE OF PRICE ADMINISTRATION
AND TO PRODUCE "ALL DUPLICATE SALES INVOICES, SALES BOOKS, LEDGERS,
INVENTORY RECORDS, CONTRACTS AND RECORDS RELATING TO THE SALE OF ALL
COMMODITIES FROM SEPTEMBER 1, 1944 TO SEPTEMBER 28, 1944."  IN
COMPLIANCE WITH THE SUBPOENA, PETITIONER APPEARED AND, AFTER BEING
SWORN, WAS REQUESTED TO TURN OVER THE SUBPOENAED RECORDS.  PETITIONER'S
COUNSEL INQUIRED WHETHER PETITIONER WAS BEING GRANTED IMMUNITY "AS TO
ANY AND ALL MATTERS FOR INFORMATION OBTAINED AS A RESULT OF THE
INVESTIGATION AND EXAMINATION OF THESE RECORDS."  THE PRESIDING
OFFICIAL STATED THAT THE "WITNESS IS ENTITLED TO WHATEVER IMMUNITY
WHICH FLOWS AS A MATTER OF LAW FROM THE PRODUCTION OF THESE BOOKS AND
RECORDS WHICH ARE REQUIRED TO BE KEPT PURSUANT TO MPRS 271 AND 426." 
FN3  PETITIONER THEREUPON PRODUCED THE RECORDS, BUT CLAIMED
CONSTITUTIONAL PRIVILEGE. 

THE PLEA IN BAR ALLEGED THAT THE NAME OF THE PURCHASER IN THE
TRANSACTIONS INVOLVED IN THE INFORMATION APPEARED IN THE SUBPOENAED
SALES INVOICES AND OTHER SIMILAR DOCUMENTS.  AND IT WAS ALLEGED THAT
THE OFFICE OF PRICE ADMINISTRATION HAD USED THE NAME AND OTHER
UNSPECIFIED LEADS OBTAINED FROM THESE DOCUMENTS TO SEARCH OUT EVIDENCE
OF THE VIOLATIONS, WHICH HAD OCCURRED IN THE PRECEDING YEAR. 

THE CIRCUIT COURT OF APPEALS RULED THAT THE RECORDS WHICH PETITIONER
WAS COMPELLED TO PRODUCE WERE RECORDS REQUIRED TO BE KEPT BY A VALID
REGULATION UNDER THE PRICE CONTROL ACT; THAT THEREBY THEY BECAME PUBLIC
DOCUMENTS, AS TO WHICH NO CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION ATTACHES; THAT ACCORDINGLY THE IMMUNITY OF SEC. 202(G)
DID NOT EXTEND TO THE PRODUCTION OF THESE RECORDS AND THE PLEA IN BAR
WAS PROPERLY OVERRULED BY THE TRIAL COURT.  159 F.2D 890. 

IT SHOULD BE OBSERVED AT THE OUTSET THAT THE DECISION IN THE INSTANT
CASE TURNS ON THE CONSTRUCTION OF A COMPULSORY TESTIMONY-IMMUNITY
PROVISION WHICH INCORPORATES BY REFERENCE THE COMPULSORY TESTIMONY ACT
OF 1893.  THIS PROVISION, IN CONJUNCTION WITH BROAD RECORD-KEEPING
REQUIREMENTS, HAS BEEN INCLUDED NOT MERELY IN A TEMPORARY WARTIME
MEASURE BUT ALSO, IN SUBSTANTIALLY THE SAME TERMS, IN VIRTUALLY ALL OF
THE MAJOR REGULATORY ENACTMENTS OF THE FEDERAL GOVERNMENT.  FN4 

IT IS CONTENDED THAT A BROADER CONSTRUCTION OF THE SCOPE OF THE
IMMUNITY PROVISION THAN THAT APPROVED BY THE CIRCUIT COURT OF APPEALS
WOULD BE MORE CONSISTENT WITH THE CONGRESSIONAL AIM, IN CONFERRING
INVESTIGATORY POWERS UPON THE ADMINISTRATOR, TO SECURE PROMPT
DISCLOSURE OF BOOKS AND RECORDS OF THE PRIVATE ENTERPRISES SUBJECTED TO
OPA REGULATIONS.  IN SUPPORT OF THIS CONTENTION, IT IS URGED THAT THE
LANGUAGE AND LEGISLATIVE HISTORY OF THE ACT INDICATE NOTHING MORE THAN
THAT SEC. 202 WAS INCLUDED FOR THE PURPOSE OF "OBTAINING INFORMATION"
AND THAT NOTHING IN THAT HISTORY THROWS ANY LIGHT UPON THE SCOPE OF THE
IMMUNITY AFFORDED BY SUBSECTION (G).  WE CANNOT AGREE WITH THESE
CONTENTIONS.  FOR, THE LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE
HISTORY, VIEWED AGAINST THE BACKGROUND OF SETTLED JUDICIAL CONSTRUCTION
OF THE IMMUNITY PROVISION, INDICATE THAT CONGRESS REQUIRED RECORDS TO
BE KEPT AS A MEANS OF ENFORCING THE STATUTE AND DID NOT INTEND TO
FRUSTRATE THE USE OF THOSE RECORDS FOR ENFORCEMENT ACTION BY GRANTING
AN IMMUNITY BONUS TO INDIVIDUALS COMPELLED TO DISCLOSE THEIR REQUIRED
RECORDS TO THE ADMINISTRATOR. 

THE VERY LANGUAGE OF SEC. 202(A) DISCLOSES THAT THE RECORD-KEEPING
AND INSPECTION REQUIREMENTS WERE DESIGNED NOT MERELY TO "OBTAIN
INFORMATION" FOR ASSISTANCE IN PRESCRIBING REGULATIONS OR ORDERS UNDER
THE STATUTE, BUT ALSO TO AID "IN THE ADMINISTRATION AND ENFORCEMENT OF
THIS ACT AND REGULATIONS, ORDERS, AND PRICE SCHEDULES THEREUNDER." 
FN5 

THE LEGISLATIVE HISTORY OF SEC. 202 CASTS EVEN STRONGER LIGHT ON THE
MEANING OF THE WORDS USED IN THAT SECTION.  ON JULY 30, 1941, THE
PRESIDENT OF THE UNITED STATES, IN A MESSAGE TO CONGRESS, REQUESTED
PRICE-CONTROL LEGISLATION CONFERRING EFFECTIVE AUTHORITY TO CURB
EVASION AND BOOTLEGGING FN6.  TWO DAYS LATER THE PRICE CONTROL BILL WAS
INTRODUCED IN THE HOUSE BY REPRESENTATIVE STEAGALL, AND REFERRED TO THE
COMMITTEE ON BANKING AND CURRENCY. 

AS INTRODUCED, AND AS REPORTED OUT OF THE COMMITTEE ON NOVEMBER 7,
1941, THE BILL INCLUDED BROAD INVESTIGATORY, RECORD-KEEPING, LICENSING,
AND OTHER ENFORCEMENT POWERS TO BE EXERCISED BY THE ADMINISTRATOR.  FN7
WHILE IT WAS BEFORE THE HOUSE, REPRESENTATIVE WOLCOTT ON NOVEMBER 28,
1941, OFFERED AS A SUBSTITUTE FOR SEC. 201 A SERIES OF AMENDMENTS, ONE
OF WHICH AUTHORIZED THE ADMINISTRATOR "TO SUBPENA DOCUMENTS AND
WITNESSES FOR THE PURPOSE OF OBTAINING INFORMATION IN RESPECT TO THE
ESTABLISHMENT OF PRICE CEILINGS, AND A REVIEW OF PRICE CEILINGS."  FN8
THIS AMENDMENT WAS ADOPTED.  THEREUPON REPRESENTATIVE WOLCOTT MOVED TO
STRIKE OUT AS "REDUNDANT" THE MUCH BROADER AND FAR MORE RIGOROUS
PROVISIONS IN THE BILL (SEC. 202), WHICH AUTHORIZED THE ADMINISTRATOR
TO "REQUIRE THE MAKING AND KEEPING OF RECORDS AND OTHER DOCUMENTS AND
THE MAKING OF REPORTS," AND TO "OBTAIN OR REQUIRE THE FURNISHING OF
SUCH INFORMATION UNDER OATH OR AFFIRMATION OR OTHERWISE, AS HE DEEMS
NECESSARY OR PROPER TO ASSIST HIM IN PRESCRIBING ANY REGULATION OR
ORDER UNDER THIS ACT, AND IN THE ADMINISTRATION AND ENFORCEMENT OF THIS
ACT, AND REGULATIONS AND ORDERS THEREUNDER."  FN9  THIS AMENDMENT TOO
WAS ACCEPTED BY THE HOUSE.  FN10 

IT IS SIGNIFICANT TO NOTE THAT THE SENATE COMMITTEE ON BANKING AND
CURRENCY BEGAN ITS CONSIDERATION OF THE BILL ON DECEMBER 9, 1941, THE
DAY AFTER CONGRESS DECLARED THE EXISTENCE OF A STATE OF WAR BETWEEN
THIS COUNTRY AND THE IMPERIAL GOVERNMENT OF JAPAN.  APPEARING BEFORE
THE SENATE COMMITTEE IN THIS WARTIME SETTING, THE PROPONENTS OF THE
ORIGINAL MEASURE REQUESTED AND SECURED THE RESTORATION OF THE
ENFORCEMENT POWERS WHICH THE HOUSE HAD STRICKEN.  FN11  THEY ASSERTED
THAT A MAJOR ASPECT OF THE INVESTIGATORY POWERS CONTAINED IN THE BILL
AS ORIGINALLY DRAFTED WAS TO ENABLE THE ADMINISTRATOR TO FERRET OUT
VIOLATIONS AND ENFORCE THE LAW AGAINST THE VIOLATORS.  FN12  AND IT WAS
POINTED OUT THAT IN STRIKING DOWN THE AUTHORITY ORIGINALLY GIVEN THE
ADMINISTRATOR IN THE COMMITTEE BILL TO REQUIRE THE MAINTENANCE OF
RECORDS, THE HOUSE HAD SUBSTANTIALLY STRIPPED HIM OF HIS INVESTIGATORY
AND ENFORCEMENT POWERS, 

"BECAUSE NO INVESTIGATORY POWER CAN BE EFFECTIVE WITHOUT THE RIGHT TO
INSIST UPON THE MAINTENANCE OF RECORDS.  BY THE SIMPLE DEVICE OF
FAILING TO KEEP RECORDS OF PERTINENT TRANSACTIONS, OR BY DESTROYING OR
FALSIFYING SUCH RECORDS, A PERSON MAY VIOLATE THE ACT WITH IMPUNITY AND
LITTLE FEAR OF DETECTION.  ESPECIALLY IS THIS TRUE IN THE CASE OF PRICE
CONTROL LEGISLATION, WHICH OPERATES ON MANY DIVERSE INDUSTRIES AND
COMMODITIES, EACH INDUSTRY HAVING ITS OWN TRADE PRACTICES AND METHODS
OF OPERATION. 

"THE HOUSE BILL ALSO DEPRIVES THE ADMINISTRATOR OF THE POWER TO
REQUIRE REPORTS AND TO MAKE INSPECTIONS AND TO COPY DOCUMENTS.  BY THIS
DEPRIVATION THE ADMINISTRATOR'S SUPERVISION OVER THE OPERATION OF THE
ACT IS RENDERED MOST DIFFICULT.  HE HAS NO EXPEDITIOUS WAY OF CHECKING
ON COMPLIANCE.  HE IS LEFT WITHOUT READY POWER TO DISCOVER VIOLATIONS. 

"IT SHOULD NOT BE FORGOTTEN THAT THE STATUTE TO BE ADMINISTERED IS AN
EMERGENCY STATUTE.  TO PUT TEETH INTO THE PRICE CONTROL ACT, IT IS
IMPERATIVE THAT THE ADMINISTRATOR'S INVESTIGATORY POWERS BE STRONG,
CLEAR, AND WELL ADAPTED TO THE OBJECTIVE.  ..."  FN13 

EMPHASIS WAS PLACED ON THE RESTORATION OF LICENSING PROVISIONS, WHICH
THE HOUSE HAD DELETED FROM THE PRICE CONTROL BILL AS ORIGINALLY
DRAFTED.  THE GENERAL COUNSEL FOR THE OPA CONTENDED THAT LICENSING WAS
THE BACKBONE OF ENFORCEMENT OF PRICE SCHEDULES AND REGULATIONS.  FN14
THE WORLD WAR I PROTOTYPE OF THE PRICE CONTROL ACT, THE LEVER ACT, HAD
CONTAINED AUTHORITY FOR THE PRESIDENT TO LICENSE THE DISTRIBUTION OF
ANY NECESSARIES WHENEVER DEEMED ESSENTIAL "IN ORDER TO CARRY INTO
EFFECT ANY OF THE PURPOSES OF THIS ACT  ..."  FN15  IT WAS POINTED OUT
THAT "THE GENERAL LICENSING REGULATIONS PRESCRIBED UNDER THE LEVER ACT,
APPLICABLE TO ALL LICENSEES, REQUIRED THE MAKING OF REPORTS (RULE 1),
THE PERMITTING OF INSPECTION (RULE 2), AND THE KEEPING OF RECORDS (RULE
3)."  FN16  AND IT WAS NOTED THAT LICENSING HAD BEEN EMPLOYED IN
CONNECTION WITH THE FUEL PROVISIONS OF THE ACT "AS A METHOD OF
OBTAINING INFORMATION, OF INSURING UNIVERSAL COMPLIANCE, AND OF
ENFORCING REFUNDS OF OVERCHARGES AND THE PAYMENT OF PENALTY CHARGES TO
WAR CHARITIES."  FN17 BY LICENSING MIDDLEMEN, "VIOLATIONS WERE READILY
DISCOVERED BY EXAMINATION OF THE RECORDS WHICH EACH LICENSEE WAS
REQUIRED TO SUBMIT."  FN18 

WITH THIS BACKGROUND,  FN19  CONGRESS RESTORED LICENSING POWERS TO
THE ADMINISTRATOR IN THE PRICE CONTROL BILL AS ENACTED, SEC. 205, 50
U.S.C. APP. SEC. 925(F), AND PROVIDED FOR THE SUSPENSION BY COURT
ACTION OF THE LICENSE OF ANY PERSON FOUND TO HAVE VIOLATED ANY OF THE
PROVISIONS OF THE LICENSE OR PRICE SCHEDULES OR OTHER REQUIREMENTS. 
NON-RETAIL FRUIT DEALERS, INCLUDING PETITIONER IN THE PRESENT CASE,
WERE LICENSED UNDER SEC. 9A OF MAXIMUM PRICE REGULATION NO. 426, 8 F.R.
16411(1943). 

IT IS DIFFICULT TO BELIEVE THAT CONGRESS, WHOSE ATTENTION WAS INVITED
BY THE PROPONENTS OF THE PRICE CONTROL ACT TO THE VITAL IMPORTANCE OF
THE LICENSING, RECORD-KEEPING AND INSPECTION PROVISIONS IN AIDING
EFFECTIVE ENFORCEMENT OF THE LEVER ACT, COULD POSSIBLY HAVE INTENDED
SEC. 202(G) TO PROFFER A "GRATUITY TO CRIME" BY GRANTING IMMUNITY TO
CUSTODIANS OF NON-PRIVILEGED RECORDS.  NOR IS IT EASY TO CONCEIVE THAT
CONGRESS COULD HAVE INTENDED PRIVATE PRIVILEGE TO ATTACH TO RECORDS
WHOSE KEEPING IT AUTHORIZED THE ADMINISTRATOR TO REQUIRE ON THE EXPRESS
SUPPOSITION THAT IT WAS THEREBY INSERTING "TEETH" INTO THE PRICE
CONTROL ACT SINCE THE ADMINISTRATOR, BY THE USE OF SUCH RECORDS, COULD
READILY DISCOVER VIOLATIONS, CHECK ON COMPLIANCE, AND PREVENT
VIOLATIONS FROM BEING COMMITTED "WITH IMPUNITY." 

IN CONFORMANCE WITH THESE VIEWS, THE BILL AS PASSED BY CONGRESS
EMPOWERED THE ADMINISTRATOR TO REQUIRE THE MAKING AND KEEPING OF
RECORDS BY ALL PERSONS SUBJECT TO THE STATUTE, AND TO COMPEL, BY LEGAL
PROCESS, ORAL TESTIMONY OF WITNESSES AND THE PRODUCTION OF DOCUMENTS
DEEMED NECESSARY IN THE ADMINISTRATION AND ENFORCEMENT OF THE STATUTE
AND REGULATIONS.  IT ALSO INCLUDED THE IMMUNITY PROVISO, SUBSECTION (G)
OF SEC. 202, AS TO WHICH NO SPECIAL ATTENTION SEEMS TO HAVE BEEN PAID
IN THE DEBATES, ALTHOUGH IT WAS UNDOUBTEDLY INCLUDED, AS IT HAD BEEN IN
OTHER STATUTES, AS A "USUAL ADMINISTRATIVE PROVISION,"  FN20  INTENDED
TO FULFILL THE PURPOSE CUSTOMARILY FULFILLED BY SUCH A PROVISION. 

THE INESCAPABLE IMPLICATIONS OF THE LEGISLATIVE HISTORY RELATED ABOVE
CONCERNING THE OTHER SUBSECTIONS OF SEC. 202 WOULD APPEAR TO BE THAT
CONGRESS DID NOT INTEND THE SCOPE OF THE STATUTORY IMMUNITY TO BE SO
BROAD AS TO CONFER A BONUS FOR THE PRODUCTION OF INFORMATION OTHERWISE
OBTAINABLE. 

MOREOVER, THERE IS A PRESUMPTION THAT CONGRESS, IN REENACTING THE
IMMUNITY PROVISION OF THE 1893 ACT, WAS AWARE OF THE SETTLED JUDICIAL
CONSTRUCTION OF THE STATUTORY IMMUNITY.  IN ADOPTING THE LANGUAGE USED
IN THE EARLIER ACT, CONGRESS "MUST BE CONSIDERED TO HAVE ADOPTED ALSO
THE CONSTRUCTION GIVEN BY THIS COURT TO SUCH LANGUAGE, AND MADE IT A
PART OF THE ENACTMENT."  FN21 THAT JUDICIAL CONSTRUCTION IS MADE UP OF
THE DOCTRINES ENUNCIATED BY THIS COURT IN SPELLING OUT THE NON
PRIVILEGED STATUS OF RECORDS VALIDLY REQUIRED BY LAW TO BE KEPT, IN
WILSON V. UNITED STATES, 221 U.S. 361(1911), AND THE INAPPLICABILITY OF
IMMUNITY PROVISIONS TO NON-PRIVILEGED DOCUMENTS, IN HEIKE V. UNITED
STATES, 227 U.S. 131(1913).    IN THE FORMER CASE, WILSON, THE
PRESIDENT OF A CORPORATION, WAS REQUIRED BY SUBPOENA TO PRODUCE THE
CORPORATE BOOKS IN HIS CUSTODY BEFORE A GRAND JURY.  HE APPEARED BEFORE
THE GRAND JURY BUT REFUSED TO DELIVER UP THE RECORDS ON THE GROUND THAT
THEIR CONTENTS WOULD TEND TO INCRIMINATE HIM, AND CLAIMED PRIVILEGE
UNDER THE FIFTH AMENDMENT.  ON REVIEW IN THIS COURT OF THE JUDGMENT
COMMITTING HIM FOR CONTEMPT, WILSON BASED HIS DEFENSE IN PART ON THE
THEORY THAT HE WOULD HAVE BEEN PROTECTED IN HIS CONSTITUTIONAL
PRIVILEGE AGAINST SELF-INCRIMINATION HAD HE BEEN SWORN AS A WITNESS,
AND THAT THE GOVERNMENT'S FAILURE TO PERMIT HIM TO BE SWORN COULD NOT
DEPRIVE HIM OF SUCH PROTECTION.  FN22  THIS ARGUMENT WAS DISPOSED OF BY
THE COURT SIMPLY ON THE GROUND THAT A CORPORATE OFFICER HAS NO SUCH
CONSTITUTIONAL PRIVILEGE AS TO CORPORATE RECORDS IN HIS POSSESSION,
EVEN THOUGH THEY CONTAIN ENTRIES MADE BY HIMSELF WHICH DISCLOSE HIS
CRIME.  MR. JUSTICE HUGHES, ANNOUNCING THE OPINION OF THE COURT, BASED
THE DECISION ON THE REASONING (WHICH THIS COURT RECENTLY CITED WITH
APPROVAL, IN DAVIS V. UNITED STATES, 328 U.S. 582, 589-90(1946)) THAT 

"THE PHYSICAL CUSTODY OF INCRIMINATING DOCUMENTS DOES NOT OF ITSELF
PROTECT THE CUSTODIAN AGAINST THEIR COMPULSORY PRODUCTION.  THE
QUESTION STILL REMAINS WITH RESPECT TO THE NATURE OF THE DOCUMENTS AND
THE CAPACITY IN WHICH THEY ARE HELD.  IT MAY YET APPEAR THAT THEY ARE
OF A CHARACTER WHICH SUBJECTS THEM TO THE SCRUTINY DEMANDED AND THAT
THE CUSTODIAN HAS VOLUNTARILY ASSUMED A DUTY WHICH OVERRIDES HIS CLAIM
OF PRIVILEGE.  ... THE PRINCIPLE APPLIES NOT ONLY TO PUBLIC DOCUMENTS
IN PUBLIC OFFICES, BUT ALSO TO RECORDS REQUIRED BY LAW TO BE KEPT IN
ORDER THAT THERE MAY BE SUITABLE INFORMATION OF TRANSACTIONS WHICH ARE
THE APPROPRIATE SUBJECTS OF GOVERNMENTAL REGULATION AND THE ENFORCEMENT
OF RESTRICTIONS VALIDLY ESTABLISHED.  THERE THE PRIVILEGE, WHICH EXISTS
AS TO PRIVATE PAPERS, CANNOT BE MAINTAINED."  FN23 

AS ILLUSTRATIONS OF DOCUMENTS MEETING THIS "REQUIRED RECORDS" TEST,
THE COURT CITED WITH APPROVAL STATE SUPREME COURT DECISIONS THAT
BUSINESS RECORDS KEPT UNDER REQUIREMENT OF LAW BY PRIVATE INDIVIDUALS
IN UNINCORPORATED ENTERPRISES WERE "'PUBLIC DOCUMENTS, WHICH THE
DEFENDANT WAS REQUIRED TO KEEP, NOT FOR HIS PRIVATE USES, BUT FOR THE
BENEFIT OF THE PUBLIC, AND FOR PUBLIC INSPECTION.'"  FN24  THE NON
CORPORATE RECORDS TREATED AS PUBLIC IN THOSE CASES CONCERNED SUCH
INDIVIDUALS AS DRUGGISTS REQUIRED BY STATUTE TO KEEP A RECORD OF ALL
SALES OF INTOXICATING LIQUORS.  FN25  THE CORPORATE AND NON-CORPORATE
BUSINESSES REQUIRED BY THE PRICE CONTROL ACT TO KEEP RECORDS EMBRACE A
MUCH GREATER NUMBER OF ENTERPRISES THAN THOSE SIMILARLY REGULATED BY
THE STATES AND MUNICIPALITIES.  BUT, SINCE IT IS CONCEDED THAT THE
INCREASED SCOPE OF REGULATION UNDER THE WARTIME MEASURE HERE INVOLVED
DOES NOT RENDER THAT ACT UNCONSTITUTIONAL, THE "REQUIRED RECORDS"
DOCTRINE WHICH THIS COURT APPROVED AS APPLIED TO NON-CORPORATE
BUSINESSMEN IN THE STATE CASES WOULD APPEAR EQUALLY APPLICABLE IN THE
CASE AT BAR. 

IN THE HEIKE CASE, THIS COURT, PER HOLMES, J., LAID DOWN A STANDARD
FOR THE CONSTRUCTION OF STATUTORY IMMUNITY PROVISOS WHICH CLEARLY
REQUIRES AFFIRMANCE OF THE DECISION OF THE CIRCUIT COURT HERE:  "...
THE OBVIOUS PURPOSE OF THE STATUTE IS TO MAKE EVIDENCE AVAILABLE AND
COMPULSORY THAT OTHERWISE COULD NOT BE GOT.  WE SEE NO REASON FOR
SUPPOSING THAT THE ACT OFFERED A GRATUITY TO CRIME.  IT SHOULD BE
CONSTRUED, SO FAR AS ITS WORDS FAIRLY ALLOW THE CONSTRUCTION, AS
COTERMINOUS WITH WHAT OTHERWISE WOULD HAVE BEEN THE PRIVILEGE OF THE
PERSON CONCERNED."  FN26  IN VIEW OF THE CLEAR RATIONALE IN WILSON,
TAKEN TOGETHER WITH THE RULING IN HEIKE AS TO HOW STATUTORY IMMUNITY
PROVISOS SHOULD BE CONSTRUED, THE CONCLUSION SEEMS INEVITABLE THAT
CONGRESS MUST HAVE INTENDED THE IMMUNITY PROVISO IN THE PRICE CONTROL
ACT TO BE COTERMINOUS WITH WHAT WOULD OTHERWISE HAVE BEEN THE
CONSTITUTIONAL PRIVILEGE OF PETITIONER IN THE CASE AT BAR.  SINCE HE
COULD ASSERT NO VALID PRIVILEGE AS TO THE REQUIRED RECORDS HERE IN
QUESTION, HE WAS ENTITLED TO NO IMMUNITY UNDER THE STATUTE THUS
VIEWED. 

THE TRADITIONAL RULE THAT RE-ENACTMENT OF A STATUTE CREATES A
PRESUMPTION OF LEGISLATIVE ADOPTION OF PREVIOUS JUDICIAL CONSTRUCTION
MAY PROPERLY BE APPLIED HERE, SINCE THE COURT IN HEIKE REGARDED THE
1903 IMMUNITY STATUTE THERE CONSTRUED AS IDENTICAL, IN POLICY AND IN
THE SCOPE OF IMMUNITY FURNISHED, WITH THE COMPULSORY TESTIMONY ACT OF
1893, WHICH HAS BEEN RE-ENACTED BY INCORPORATION INTO THE PRICE CONTROL
ACT. 

IN ADDITION, SCRUTINY OF THE PRECISE WORDING OF SEC. 202(G) OF THE
LATTER STATUTE INDICATES THAT THE DRAFTSMEN OF THAT SECTION WENT TO
SOME PAINS TO ENSURE THAT THE IMMUNITY PROVIDED FOR WOULD BE CONSTRUED
BY THE COURTS AS BEING SO LIMITED.  THE CONSTRUCTION ADOPTED IN THE
HEIKE DECISION WAS RENDERED SOMEWHAT DIFFICULT BECAUSE NEITHER THE
COMPULSORY TESTIMONY ACT OF 1893 NOR THE IMMUNITY PROVISO IN THE 1903
ACT MADE ANY EXPLICIT REFERENCE TO THE CONSTITUTIONAL PRIVILEGE AGAINST
SELF-INCRIMINATION, WITH WHOSE SCOPE THE COURT NONETHELESS HELD THE
IMMUNITY TO BE COTERMINOUS.  SECTION 202(G), ON THE OTHER HAND, FOLLOWS
A PATTERN SET BY THE SECURITIES ACT OF 1933 AND EXPRESSLY REFERS TO
THAT PRIVILEGE, THUS APPARENTLY SEEKING TO MAKE IT DOUBLY CERTAIN THAT
THE COURTS WOULD CONSTRUE THE IMMUNITY THERE GRANTED AS NO BROADER THAN
THE PRIVILEGE: 

"NO PERSON SHALL BE EXCUSED FROM COMPLYING WITH ANY REQUIREMENTS
UNDER THIS SECTION BECAUSE OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION,
BUT THE IMMUNITY PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF FEB. 11,
1893  ...  SHALL APPLY WITH RESPECT TO ANY INDIVIDUAL WHO SPECIFICALLY
CLAIMS SUCH PRIVILEGE." 

A COMPARISON OF THE PRECISE WORDING OF SEC. 202(G) WITH THE WORDING
OF IMMUNITY PROVISIONS CONTAINED IN EARLIER STATUTES  FN27  READILY
SUGGESTS ONE FUNCTION INTENDED BY THE DRAFTERS OF SEC. 202(G) TO BE
PERFORMED BY THE ADDITIONAL PHRASES EXPRESSLY REFERRING TO "PRIVILEGE"
VIZ., THAT OF UNDERLINING THE LEGISLATIVE INTENTION OF REQUIRING AN
EXCHANGE OF CONSTITUTIONAL PRIVILEGE FOR IMMUNITY, AN INTENT WHICH THE
COURT HAD PREVIOUSLY THOUGHT DISCERNABLE EVEN IN THE LESS OBVIOUS TERMS
USED BY THE DRAFTERS OF THE EARLIER STATUTES.  THUS THE IMMUNITY
PROVISIONS OF THE COMPULSORY TESTIMONY ACT CAN BE RELIED UPON HERE ONLY
IF THE TWO PREREQUISITES SET FORTH IN SEC. 202(G) ARE SATISFIED:  (1)
THAT THE PERSON SEEKING TO AVAIL HIMSELF OF THE IMMUNITY COULD ACTUALLY
HAVE BEEN EXCUSED, IN THE ABSENCE OF THIS SECTION, FROM COMPLYING WITH
ANY OF ITS REQUIREMENTS BECAUSE OF HIS CONSTITUTIONAL PRIVILEGE AGAINST
SELF-INCRIMINATION, AND (2) THAT THE PERSON SPECIFICALLY CLAIM SUCH
PRIVILEGE.  OBVIOUSLY IF PREREQUISITE (1) IS NOT FULFILLED, THE MERE
FACT THAT THE PERSON SPECIFICALLY CLAIMS A NON-EXISTENT PRIVILEGE WAS
NOT INTENDED BY CONGRESS TO ENTITLE HIM TO THE BENEFIT OF THE
IMMUNITY.  AND THIS IS SO WHETHER THE STATUTE BE CONSTRUED WITH
PARTICULAR REFERENCE TO ITS GRAMMAR, ITS HISTORICAL GENESIS, OR ITS
RATIONAL FUNCTION. 

PETITIONER DOES NOT DENY THAT THE ACTUAL EXISTENCE OF A GENUINE
PRIVILEGE AGAINST SELF-INCRIMINATION IS AN ABSOLUTE PREREQUISITE FOR
THE ATTAINMENT OF IMMUNITY UNDER SEC. 202(G) BY A CORPORATE OFFICER WHO
HAS BEEN COMPELLED BY SUBPOENA TO PRODUCE REQUIRED RECORDS; AND THAT,
UNDER THE HEIKE RULING, THE ASSERTION OF A CLAIM TO SUCH A PRIVILEGE IN
CONNECTION WITH RECORDS WHICH ARE IN FACT NON-PRIVILEGED IS UNAVAILING
TO SECURE IMMUNITY, WHERE THE CLAIMANT IS A CORPORATE OFFICER.  BUT,
WHILE CONCEDING THAT THE STATUTE SHOULD BE SO CONSTRUED WHERE CORPORATE
OFFICIALS ARE CONCERNED, THE PETITIONER NECESSARILY ATTRIBUTES TO
CONGRESS THE PARADOXICAL INTENTION OF AWARDING IMMUNITY IN EXCHANGE FOR
A CLAIM OF PRIVILEGE AS TO RECORDS OF A CLAIMANT ENGAGED IN NON
CORPORATE BUSINESS, THOUGH HIS BUSINESS IS SIMILARLY SUBJECTED TO
GOVERNMENTAL PRICE CONTROL, AND ITS REQUIRED RECORDS ARE, UNDER THE
WILSON RATIONALE, SIMILARLY NON-PRIVILEGED. 

THE IMPLAUSIBILITY OF ANY SUCH INTERPRETATION OF CONGRESSIONAL INTENT
IS HIGHLIGHTED BY THE UNQUESTIONED FACT THAT CONGRESS PROVIDED FOR
PRICE REGULATIONS ENFORCIBLE AGAINST UNINCORPORATED ENTREPRENEURS AS
WELL AS CORPORATE INDUSTRY.  IT IS ALSO UNQUESTIONABLE THAT CONGRESS,
TO ENSURE THAT VIOLATIONS OF THE STATUTE SHOULD NOT GO UNPUNISHED,
REQUIRED RECORDS TO BE KEPT OF ALL RELEVANT BUYING AND SELLING
TRANSACTIONS BY ALL INDIVIDUAL AND CORPORATE BUSINESS SUBJECT TO THE
STATUTE.  IF THESE ASPECTS OF CONGRESSIONAL INTENTION BE CONCEDED, IT
IS MOST DIFFICULT TO COMPREHEND WHY CONGRESS SHOULD BE ASSUMED TO HAVE
DIFFERENTIATED SUB SILENTIO, FOR PURPOSES OF THE IMMUNITY PROVISO,
BETWEEN RECORDS REQUIRED TO BE KEPT BY INDIVIDUALS AND RECORDS REQUIRED
TO BE KEPT BY CORPORATIONS.  SUCH AN ASSUMPTION CARRIES WITH IT THE
INCONGRUOUS RESULT THAT INDIVIDUALS FORCED TO PRODUCE RECORDS REQUIRED
TO BE KEPT FOR THE ADMINISTRATOR'S INSPECTION AND USE IN ENFORCING THE
PRICE REGULATIONS WOULD BE GIVEN A BONUS OF IMMUNITY IF ENGAGED IN NON
CORPORATE BUSINESS, THUS RENDERING THE RECORDS OF NON-CORPORATE
ENTERPRISE VIRTUALLY USELESS FOR ENFORCEMENT PURPOSES,  FN28  WHEREAS
INDIVIDUALS DISCLOSING THE VERY SAME TYPE OF REQUIRED RECORDS BUT
ENGAGED IN CORPORATE ENTERPRISE WOULD NOT BE GIVEN THAT BONUS.  IN
EFFECT, THIS IS TO SAY THAT CONGRESS INTENDED THE IMMUNITY PROVISO TO
FRUSTRATE A MAJOR AIM OF ITS STATUTORY REQUIREMENT OF RECORD-KEEPING
AND RECORD INSPECTION SO FAR AS IT APPLIES TO NON-CORPORATE
BUSINESSMEN, BUT NOT SO FAR AS IT APPLIES TO CORPORATE OFFICERS.  FN29 

IT IS CONTENDED THAT TO CONSTRUE THE IMMUNITY PROVISO AS WE HAVE HERE
IS TO DEVITALIZE, IF NOT RENDER MEANINGLESS, THE PHRASE "ANY
REQUIREMENTS"  FN30  WHICH APPEARS IN THE OPENING CLAUSE OF SEC.
202(G):  "NO PERSON SHALL BE EXCUSED FROM COMPLYING WITH ANY
REQUIREMENTS UNDER THIS SECTION BECAUSE OF HIS PRIVILEGE AGAINST SELF
INCRIMINATION  ..."  IT IS URGED THAT, SINCE SEC. 202 INCLUDES AMONG
ITS REQUIREMENTS THE FURNISHING OF INFORMATION UNDER OATH, THE MAKING
AND KEEPING OF RECORDS AND REPORTS, THE INSPECTION AND COPYING OF
RECORDS AND OTHER DOCUMENTS, AND THE APPEARING AND TESTIFYING OR
PRODUCING OF DOCUMENTS, THE IMMUNITY PROVIDED MUST COVER COMPLIANCE
WITH ANY ONE OF THESE REQUIREMENTS.  THE SHORT ANSWER TO THAT
CONTENTION IS THAT THE IMMUNITY PROVIDED DOES COVER COMPLIANCE WITH ANY
OF THESE REQUIREMENTS AS TO WHICH A PERSON WOULD HAVE BEEN EXCUSED FROM
COMPLIANCE BECAUSE OF HIS PRIVILEGE, WERE IT NOT FOR THE STATUTORY
GRANT OF IMMUNITY IN EXCHANGE FOR SUCH PRIVILEGE.  FN31  THE EXPRESS
LANGUAGE OF THE PROVISO, AS WELL AS ITS HISTORICAL BACKGROUND, READILY
SUGGESTS THIS REASONABLE INTERPRETATION.  EVEN THOSE WHO OPPOSE THIS
INTERPRETATION MUST AND DO CONCEDE THAT CONGRESS HAD NO INTENTION OF
REMOVING THE EXCUSE OF PRIVILEGE WHERE THE PRIVILEGE IS ABSENT FROM THE
OUTSET BECAUSE THE RECORDS WHOSE PRODUCTION IS ORDERED AND CONCERNING
WHICH PRIVILEGE IS ASSERTED ARE CORPORATE RECORDS.  IF THIS CONCESSION
IS MADE, SURELY LOGIC AS WELL AS HISTORY REQUIRES A SIMILAR READING OF
THE PROVISO IN CONNECTION WITH VALIDLY REQUIRED NON-CORPORATE RECORDS,
AS TO WHICH PRIVILEGE IS SIMILARLY ABSENT FROM THE OUTSET. 

IF THE CONTENTION ADVANCED AGAINST OUR INTERPRETATION BE VALID, THE
COURT MUST HAVE ERRED IN ITS CONSTRUCTION OF THE IMMUNITY PROVISO IN
THE HEIKE CASE.  FOR THE 1893 ACT, 49 U.S.C. SEC. 46, WHICH IT WAS IN
EFFECT CONSTRUING, PROVIDES THAT, "NO PERSON SHALL BE EXCUSED FROM
ATTENDING AND TESTIFYING OR FROM PRODUCING BOOKS, PAPERS, TARIFFS,
CONTRACTS, AGREEMENTS, AND DOCUMENTS BEFORE THE INTERSTATE COMMERCE
COMMISSION  ...  FOR THE REASON THAT THE TESTIMONY OR EVIDENCE,
DOCUMENTARY OR OTHERWISE, REQUIRED OF HIM, MAY TEND TO CRIMINATE HIM OR
SUBJECT HIM TO A PENALTY OR FORFEITURE.  BUT NO PERSON SHALL BE
PROSECUTED  ...  FOR OR ON ACCOUNT OF ANY TRANSACTION  ... CONCERNING
WHICH HE MAY TESTIFY, OR PRODUCE EVIDENCE, DOCUMENTARY OR OTHERWISE
..."  THUS THE IMMUNITY PART OF THE 1893 STATUTE EXTENDED TO ANY
DOCUMENTARY AS WELL AS ORAL TESTIMONY CONCERNING WHICH THERE MIGHT BE A
CLAIM OF PRIVILEGE.  AND INCLUDED AMONG THE DOCUMENTS WHICH THE
IMMUNITY-SEEKER MIGHT BE COMPELLED TO PRODUCE WERE RECORDS MAINTAINED
BY COMMON CARRIERS IN COMPLIANCE WITH THE REQUIREMENTS OF THE
INTERSTATE COMMERCE ACT,  FN32  AND HENCE OBVIOUSLY WITHIN THE
DEFINITION OF PUBLIC RECORDS SET FORTH IN THE WILSON AND HEIKE
DECISIONS.  IF THE REASONING ADVANCED AGAINST THE INTERPRETATION OF
SEC. 202(G) WE HAVE PROPOSED WERE VALID, THEN IT MIGHT EQUALLY WELL BE
CONTENDED THAT THE COURT IN THE HEIKE DECISION DEVITALIZED, IF NOT
RENDERED MEANINGLESS THE PHRASE "DOCUMENTARY OR OTHERWISE" IN THE
IMMUNITY SECTION OF THE 1893 ACT. 

ACTUALLY, NEITHER THE INTERPRETATION AS APPLIED IN THE HEIKE DECISION
NOR AS EXPOUNDED HERE RENDERS MEANINGLESS ANY OF THE WORDS IN THE
IMMUNITY PROVISION.  IN EACH CASE, THE IMMUNITY PROVISO IS SET FORTH IN
CONJUNCTION WITH RECORD-KEEPING REQUIREMENTS.  AND IN EACH CASE, WHERE
THE IMMUNITY PROVIDED CONCERNS DOCUMENTS WHOSE PRODUCTION MIGHT
OTHERWISE BE EXCUSED ON THE GROUND OF PRIVILEGE, THE DOCUMENTS REFERRED
TO ARE ALL WRITINGS WHOSE KEEPING AS RECORDS HAS NOT BEEN REQUIRED BY
VALID STATUTE OR REGULATION.  OF COURSE ALL ORAL TESTIMONY BY
INDIVIDUALS CAN PROPERLY BE COMPELLED ONLY BY EXCHANGE OF IMMUNITY FOR
WAIVER OF PRIVILEGE.  FN33 

THE COURT IN THE HEIKE CASE WAS CONFRONTED WITH THE FURTHER
CONTENTION THAT THE 1903 IMMUNITY STATUTE, WHICH WAS IMMEDIATELY BEFORE
IT, HAD BEEN PASSED WHEN "THERE WAS AN IMPERIOUS POPULAR DEMAND THAT
THE INSIDE WORKING OF THE TRUSTS SHOULD BE INVESTIGATED, AND THAT THE
PEOPLE AND CONGRESS CARED SO MUCH TO SECURE THE NECESSARY EVIDENCE THAT
THEY WERE WILLING THAT SOME GUILTY PERSONS SHOULD ESCAPE, AS THAT
REWARD WAS NECESSARY TO THE END."  FN34  IN THE LIGHT OF THE EXPRESS
STATEMENTS IN THE LEGISLATIVE HISTORY OF THE PRICE CONTROL ACT AS TO
THE ENFORCEMENT ROLE OF THE INVESTIGATORY POWERS, SUCH AN ARGUMENT
WOULD HARDLY BE TENABLE IN THE PRESENT CASE.  YET EVEN IN THE HEIKE
CASE WHERE SUCH AN ARGUMENT HAD SOME ELEMENTS OF PLAUSIBILITY, THE
COURT HAD NO DIFFICULTY IN REJECTING IT IN FAVOR OF THE GOVERNMENT'S
CONTENTION THAT "THE STATUTE SHOULD BE LIMITED AS NEARLY AS MAY BE BY
THE BOUNDARIES OF THE CONSTITUTIONAL PRIVILEGE OF WHICH IT TAKES THE
PLACE."  FN35    AS A FINAL ANSWER, AN UNDERSTANDING OF THE 1893
IMMUNITY PROVISION, BASED ON ITS FULL HISTORICAL CONTEXT, SHOULD
SUFFICE TO EXPLAIN THE LIMITED FUNCTION CONTEMPLATED BY CONGRESS IN
INCORPORATING THAT PROVISION INTO THE 1942 STATUTE.  THE 1893 PROVISION
WAS ENACTED MERELY TO PROVIDE AN IMMUNITY SUFFICIENTLY BROAD TO BE AN
ADEQUATE SUBSTITUTE FOR THE CONSTITUTIONAL PRIVILEGE, SINCE PREVIOUS
STATUTORY PROVISION FOR IMMUNITY HAD BEEN FOUND BY THE COURT IN
COUNSELMAN V. HITCHCOCK, 142 U.S. 547(1892), NOT TO BE COEXTENSIVE WITH
THE PRIVILEGE, THUS RENDERING UNCONSTITUTIONAL THE STATUTORY
REQUIREMENTS FOR COMPULSORY PRODUCTION OF PRIVILEGED DOCUMENTS AND ORAL
TESTIMONY.  FN36 

THE SUGGESTION HAS BEEN ADVANCED THAT THE SCOPE OF THE IMMUNITY
INTENDED BY CONGRESS SHOULD BE ASCERTAINED, NOT BY REFERENCE TO THE
JUDICIAL AND LEGISLATIVE HISTORY CONSIDERED ABOVE, BUT BY REFERENCE TO
THE PRINCIPLE EXPOUNDED IN FEDERAL TRADE COMM'N V. AMERICAN TOBACCO
CO., 264 U.S. 298, 307(1924), OF CONSTRUING A BROAD GRANT OF STATUTORY
AUTHORITY SO AS TO AVOID ATTRIBUTING TO CONGRESS "AN INTENT TO DEFY THE
FOURTH AMENDMENT OR EVEN TO COME SO NEAR TO DOING SO AS TO RAISE A
SERIOUS QUESTION OF CONSTITUTIONAL LAW." 

IT IS INTERESTING TO NOTE THAT CONGRESS, IN ENACTING THE PRICE
CONTROL BILL, APPARENTLY DID INTEND TO RELY UPON THE PRINCIPLE OF
AMERICAN TOBACCO IN CIRCUMSTANCES SIMILAR TO THOSE IN WHICH THAT
PRINCIPLE WAS ORIGINALLY APPLIED:  NAMELY, TO INSURE THAT THE POWER OF
INSPECTION OR EXAMINATION WOULD NOT CONFLICT WITH THE PROHIBITION
AGAINST UNREASONABLE SEARCHES AND SEIZURES CONTAINED IN THE FOURTH
AMENDMENT.  SENATOR BROWN, WHO WAS CHAIRMAN OF THE SUB-COMMITTEE ON THE
PRICE CONTROL BILL AND ONE OF THE MANAGERS ON THE PART OF THE SENATE
APPOINTED TO CONFER WITH THE HOUSE MANAGERS ON THE SENATE AMENDMENTS,
EXPRESSLY STATED IT TO BE THE VIEW OF THE CONFEREES THAT SEC. 202(A),
WHICH CONTAINED BROAD AUTHORIZATION TO THE ADMINISTRATOR TO "OBTAIN
SUCH INFORMATION AS HE DEEMS NECESSARY OR PROPER TO ASSIST HIM" IN HIS
STATUTORY DUTIES, WAS INTENDED SOLELY TO EMPOWER THE ADMINISTRATOR TO
"OBTAIN RELEVANT DATA TO ENABLE HIM PROPERLY TO DISCHARGE HIS
FUNCTIONS, PREFERABLY BY REQUIRING THE FURNISHING OF INFORMATION UNDER
OATH OR AFFIRMATION OR OTHERWISE AS HE MAY DETERMINE.  IT IS NOT
INTENDED, NOR IS ANY OTHER PROVISION OF THE ACT INTENDED, TO CONFER ANY
POWER OF INSPECTION OR EXAMINATION WHICH MIGHT CONFLICT WITH THE FOURTH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES.  SEE OPINION OF
JUSTICE HOLMES IN FEDERAL TRADE COMMISSION V. AMERICAN TOBACCO CO., 264
U.S. 298, 307."  FN37 

IT WAS THE ABUSE OF THE SUBPOENA POWER TO OBTAIN IRRELEVANT DATA IN
THE COURSE OF A "FISHING EXPEDITION" WITH WHICH THE COURT WAS CONCERNED
IN THAT CASE.  IT IS CLEAR THAT IF THE ADMINISTRATOR SOUGHT TO OBTAIN
DATA IRRELEVANT TO THE EFFECTIVE ADMINISTRATION OF THE STATUTE AND IF
HIS RIGHT OF ACCESS WAS CHALLENGED ON THE GROUND THAT THE EVIDENCE
SOUGHT WAS "PLAINLY INCOMPETENT OR IRRELEVANT TO ANY LAWFUL PURPOSE"
FN38  OF THE ADMINISTRATOR, THAT OBJECTION COULD SUSTAIN A REFUSAL BY
THE DISTRICT COURT TO ISSUE A SUBPOENA OR OTHER WRIT TO COMPEL
INSPECTION.  BUT THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY THAT
CONGRESS INTENDED THE AMERICAN TOBACCO PRINCIPLE OF CONSTRUCTION TO
GOVERN THE IMMUNITY PROVISO OF SUBSECTION (G), PARTICULARLY SINCE THE
SCOPE OF THAT PROVISO HAD BEEN SO WELL DEMARCATED BY THE COURTS PRIOR
TO ITS 1942 RE-ENACTMENT.  AND IT IS NOT INSIGNIFICANT THAT THE ONE
RULE OF CONSTRUCTION WHICH THIS COURT HAS, IN THE PAST, DIRECTLY AND
EXPRESSLY APPLIED TO THE IMMUNITY PROVISO - THAT "IT SHOULD BE
CONSTRUED, SO FAR AS ITS WORDS FAIRLY ALLOW THE CONSTRUCTION, AS
COTERMINOUS WITH WHAT OTHERWISE WOULD HAVE BEEN THE PRIVILEGE OF THE
PERSON CONCERNED"  FN39  - WAS ENUNCIATED BY MR. JUSTICE HOLMES, WHO
GAVE NO SIGN OF REPUDIATING THAT PRINCIPLE BY HIS SUBSEQUENT STATEMENTS
IN THE AMERICAN TOBACCO CASE. 

EVEN IF THE EVIDENCE OF CONGRESSIONAL INTENT CONTAINED IN THE
LEGISLATIVE HISTORY WERE LESS CLEAR-CUT AND PERSUASIVE, AND
CONSTITUTIONAL DOUBTS MORE SERIOUS THAN THEY APPEAR TO US, WE WOULD
STILL BE UNCONVINCED AS TO THE APPLICABILITY OF THE AMERICAN TOBACCO
STANDARD TO THE CONSTRUCTION OF THE IMMUNITY PROVISO IN RELATION TO
DOCUMENTARY EVIDENCE WHICH IS CLEARLY AND UNDENIABLY RELEVANT, AND THE
RECORDING AND KEEPING OF WHICH THE ADMINISTRATOR HAS PROPERLY REQUIRED
IN ADVANCE.  FOR, IN CONSTRUING STATUTORY IMMUNITIES IN SUCH
CIRCUMSTANCES, WE MUST HEED THE EQUALLY WELL-SETTLED DOCTRINE OF THIS
COURT TO READ A STATUTE, ASSUMING THAT IT IS SUSCEPTIBLE OF EITHER OF
TWO OPPOSED INTERPRETATIONS, IN THE MANNER WHICH EFFECTUATES RATHER
THAN FRUSTRATES THE MAJOR PURPOSE OF THE LEGISLATIVE DRAFTSMEN.  THE
CANON OF AVOIDANCE OF CONSTITUTIONAL DOUBTS MUST, LIKE THE "PLAIN
MEANING" RULE, GIVE WAY WHERE ITS APPLICATION WOULD PRODUCE A FUTILE
RESULT, OR AN UNREASONABLE RESULT "PLAINLY AT VARIANCE WITH THE POLICY
OF THE LEGISLATION AS A WHOLE."  FN40  IN THE PRESENT CASE, NOT MERELY
DOES THE CONSTRUCTION PUT FORWARD BY THE PETITIONER FRUSTRATE THE
CONGRESSIONAL INTENT AS MANIFESTED BY THE LEGISLATIVE HISTORY, BUT IT
ALSO SHUTS OUT THE ILLUMINATION THAT EMANATES FROM KEY WORDS AND
PHRASES IN THE SECTION WHEN CONSIDERED, AS ABOVE, IN THE CONTEXT OF THE
HISTORY OF THE COMPULSORY TESTIMONY ACT OF 1893, AND THE CONSTRUCTION
THAT HAD BEEN PLACED UPON IT AND SIMILAR PROVISOS, PRIOR TO ITS
INCORPORATION INTO THE PRICE CONTROL ACT. 

THERE REMAINS FOR CONSIDERATION ONLY THE QUESTION AS TO WHETHER
SERIOUS DOUBTS OF CONSTITUTIONALITY ARE RAISED IF THE PRICE CONTROL ACT
IS THUS CONSTRUED.  THIS ISSUE WAS NOT DULY RAISED BY PETITIONER, AND
IT BECOMES RELEVANT, IF AT ALL, ONLY BECAUSE SUCH DOUBTS ARE NOW SAID
TO BE PRESENT IF THE IMMUNITY PROVISO IS INTERPRETED AS SET FORTH
ABOVE. 

IT MAY BE ASSUMED AT THE OUTSET THAT THERE ARE LIMITS WHICH THE
GOVERNMENT CANNOT CONSTITUTIONALLY EXCEED IN REQUIRING THE KEEPING OF
RECORDS WHICH MAY BE INSPECTED BY AN ADMINISTRATIVE AGENCY AND MAY BE
USED IN PROSECUTING STATUTORY VIOLATIONS COMMITTED BY THE RECORD-KEEPER
HIMSELF.  BUT NO SERIOUS MISGIVING THAT THOSE BOUNDS HAVE BEEN
OVERSTEPPED WOULD APPEAR TO BE EVOKED WHEN THERE IS A SUFFICIENT
RELATION BETWEEN THE ACTIVITY SOUGHT TO BE REGULATED AND THE PUBLIC
CONCERN SO THAT THE GOVERNMENT CAN CONSTITUTIONALLY REGULATE OR FORBID
THE BASIC ACTIVITY CONCERNED, AND CAN CONSTITUTIONALLY REQUIRE THE
KEEPING OF PARTICULAR RECORDS, SUBJECT TO INSPECTION BY THE
ADMINISTRATOR.  IT IS NOT QUESTIONED HERE THAT CONGRESS HAS
CONSTITUTIONAL AUTHORITY TO PRESCRIBE COMMODITY PRICES AS A WAR
EMERGENCY MEASURE, AND THAT THE LICENSING AND RECORD-KEEPING
REQUIREMENTS OF THE PRICE CONTROL ACT REPRESENT A LEGITIMATE EXERCISE
OF THAT POWER.  FN41  ACCORDINGLY, THE PRINCIPLE ENUNCIATED IN THE
WILSON CASE, AND REAFFIRMED AS RECENTLY AS THE DAVIS CASE, IS CLEARLY
APPLICABLE HERE:  NAMELY, THAT THE PRIVILEGE WHICH EXISTS AS TO PRIVATE
PAPERS CANNOT BE MAINTAINED IN RELATION TO "RECORDS REQUIRED BY LAW TO
BE KEPT IN ORDER THAT THERE MAY BE SUITABLE INFORMATION OF TRANSACTIONS
WHICH ARE THE APPROPRIATE SUBJECTS OF GOVERNMENTAL REGULATION AND THE
ENFORCEMENT OF RESTRICTIONS VALIDLY ESTABLISHED."  FN42 

EVEN THE DISSENTING JUSTICES IN THE DAVIS CASE CONCEDED THAT "THERE
IS AN IMPORTANT DIFFERENCE IN THE CONSTITUTIONAL PROTECTION AFFORDED
THEIR POSSESSORS BETWEEN PAPERS EXCLUSIVELY PRIVATE AND DOCUMENTS
HAVING PUBLIC ASPECTS,"  FN43  A DIFFERENCE WHOSE ESSENCE IS THAT THE
LATTER PAPERS, "ONCE THEY HAVE BEEN LEGALLY OBTAINED, ARE AVAILABLE AS
EVIDENCE."  FN44  IN THE CASE AT BAR, IT CANNOT BE DOUBTED THAT THE
SALES RECORD WHICH PETITIONER WAS REQUIRED TO KEEP AS A LICENSEE UNDER
THE PRICE CONTROL ACT HAS "PUBLIC ASPECTS."  NOR CAN THERE BE ANY DOUBT
THAT WHEN IT WAS OBTAINED BY THE ADMINISTRATOR THROUGH THE USE OF A
SUBPOENA, AS AUTHORIZED SPECIFICALLY BY SEC. 202(B) OF THE STATUTE, IT
WAS "LEGALLY OBTAINED" AND HENCE "AVAILABLE AS EVIDENCE."  FN45 THE
RECORD INVOLVED IN THE CASE AT BAR WAS A SALES RECORD REQUIRED TO BE
MAINTAINED UNDER AN APPROPRIATE REGULATION, ITS RELEVANCE TO THE LAWFUL
PURPOSE OF THE ADMINISTRATOR IS UNQUESTIONED, AND THE TRANSACTION WHICH
IT RECORDED WAS ONE IN WHICH THE PETITIONER COULD LAWFULLY ENGAGE
SOLELY BY VIRTUE OF THE LICENSE GRANTED TO HIM UNDER THE STATUTE. 
FN46 

IN THE VIEW THAT WE HAVE TAKEN OF THE CASE, WE FIND IT UNNECESSARY TO
CONSIDER THE ADDITIONAL CONTENTION BY THE GOVERNMENT THAT, IN ANY
EVENT, NO IMMUNITY ATTACHES TO THE PRODUCTION OF THE BOOKS BY THE
PETITIONER BECAUSE THE CONNECTION BETWEEN THE BOOKS AND THE EVIDENCE
PRODUCED AT THE TRIAL WAS TOO TENUOUS TO JUSTIFY THE CLAIM. 

FOR THE FOREGOING REASONS, THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS IS AFFIRMED. 

FN1  56 STAT. 23, AS AMENDED, 50 U.S.C. APP. SEC. 901. 

FN2  "NO PERSON SHALL BE EXCUSED FROM COMPLYING WITH ANY REQUIREMENTS
UNDER THIS SECTION BECAUSE OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION,
BUT THE IMMUNITY PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF FEBRUARY
11, 1893(U.S.C., 1934 EDITION, TITLE 49, SEC. 46), SHALL APPLY WITH
RESPECT TO ANY INDIVIDUAL WHO SPECIFICALLY CLAIMS SUCH PRIVILEGE."  50
U.S.C. APP. SEC. 922(G). 

THE COMPULSORY TESTIMONY ACT OF 1893 PROVIDES:  "NO PERSON SHALL BE
EXCUSED FROM ATTENDING AND TESTIFYING OR FROM PRODUCING BOOKS, PAPERS,
TARIFFS, CONTRACTS, AGREEMENTS AND DOCUMENTS BEFORE THE INTERSTATE
COMMERCE COMMISSION, OR IN OBEDIENCE TO THE SUBPOENA OF THE COMMISSION
...  ON THE GROUND OR FOR THE REASON THAT THE TESTIMONY OR EVIDENCE,
DOCUMENTARY OR OTHERWISE, REQUIRED OF HIM, MAY TEND TO CRIMINATE HIM OR
SUBJECT HIM TO A PENALTY OR FORFEITURE.  BUT NO PERSON SHALL BE
PROSECUTED OR SUBJECT TO ANY PENALTY OR FORFEITURE FOR OR ON ACCOUNT OF
ANY TRANSACTION, MATTER OR THING, CONCERNING WHICH HE MAY TESTIFY, OR
PRODUCE EVIDENCE, DOCUMENTARY OR OTHERWISE, BEFORE SAID COMMISSION, OR
IN OBEDIENCE TO ITS SUBPOENA  ..." 

FN3  SECTION 14 OF MAXIMUM PRICE REGULATION 426, 8 FED. REG. 9546,
9548-49(1943) PROVIDES: 

"RECORDS.  (A)  EVERY PERSON SUBJECT TO THIS REGULATION SHALL, SO
LONG AS THE EMERGENCY PRICE CONTROL ACT OF 1942, AS AMENDED, REMAINS IN
EFFECT, PRESERVE FOR EXAMINATION BY THE OFFICE OF PRICE ADMINISTRATION
ALL HIS RECORDS, INCLUDING INVOICES, SALES TICKETS, CASH RECEIPTS, OR
OTHER WRITTEN EVIDENCES OF SALE OR DELIVERY WHICH RELATE TO THE PRICES
CHARGED PURSUANT TO THE PROVISIONS OF THIS REGULATION. 

"(B)  EVERY PERSON SUBJECT TO THIS REGULATION SHALL KEEP AND MAKE
AVAILABLE FOR EXAMINATION BY THE OFFICE OF PRICE ADMINISTRATION FOR SO
LONG AS THE EMERGENCY PRICE CONTROL ACT OF 1942, AS AMENDED, REMAINS IN
EFFECT, RECORDS OF THE SAME KIND AS HE HAS CUSTOMARILY KEPT, RELATING
TO THE PRICES WHICH HE CHARGES FOR FRESH FRUITS AND VEGETABLES AFTER
THE EFFECTIVE DATE OF THIS REGULATION AND IN ADDITION AS PRECISELY AS
POSSIBLE, THE BASIS UPON WHICH HE DETERMINED MAXIMUM PRICES FOR THESE
COMMODITIES." 

FN4  SOME OF THE STATUTES WHICH INCLUDE SUCH PROVISIONS, APPLICABLE
TO THE RECORDS OF NON-CORPORATE AS WELL AS CORPORATE BUSINESS
ENTERPRISES, ARE LISTED BELOW: 

SHIPPING ACT, 1916(46 U.S.C. SECS. 826, 827, 814, 817, 820). 

PACKERS AND STOCKYARDS ACT, 1921(7 U.S.C. SECS. 221, 222). 

COMMODITY EXCHANGE ACT OF 1922(7 U.S.C. SECS. 15, 6, 7A). 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930(7 U.S.C. SEC. 499M,
499I). 

COMMUNICATIONS ACT OF 1934(47 U.S.C. SECS. 409, 203, 211, 213(F),
220, 412). 

SECURITIES EXCHANGE ACT OF 1934(15 U.S.C. SECS. 78Q, 78U). 

FEDERAL ALCOHOL ADMINISTRATION ACT, 1935(27 U.S.C. SECS. 202(C),
204(D); 26 U.S.C. SEC. 2857; 15 U.S.C. SECS. 49, 50). 

FEDERAL POWER ACT, 1935(16 U.S.C. SECS. 825(A), 825FG)). 

INDUSTRIAL ALCOHOL ACT OF 1935(26 U.S.C. SECS. 3119, 3121(C)). 

MOTOR CARRIER ACT OF 1935(49 U.S.C. SECS. 305(D), 304(A)(1), 311(D),
317, 318, 320, 322(G)). 

NATIONAL LABOR RELATIONS ACT, 1935(29 U.S.C. SECS. 156, 161). 

SOCIAL SECURITY ACT, 1935(42 U.S.C. SEC. 405(A), (D), (E), (F)). 

MERCHANT MARINE ACT, 1936(46 U.S.C. SECS. 1124, 1211, 1114(B)). 

BITUMINOUS COAL ACT OF 1937(15 U.S.C. (1940 ED.)  SECS.  838, 833(A),
(E), (K), 840(TERMINATED, AS PROVIDED IN SEC. 849)). 

CIVIL AERONAUTICS ACT OF 1938(49 U.S.C. SECS. 644, 483, 487, 492,
622(E) AND (G), 673). 

FAIR LABOR STANDARDS ACT OF 1938(29 U.S.C. SECS. 209, 211; 15 U.S.C.
SECS. 49, 50).  NATURAL GAS ACT, 1938(15 U.S.C. SEC. 717 A, G, M). 

RAILROAD UNEMPLOYMENT INSURANCE ACT, 1938(45 U.S.C. SECS. 362(A),
(B), (C), (L), 359). 

WATER CARRIERS ACT OF 1940(49 U.S.C. SECS. 916, 906, 913, 917(D)). 

FREIGHT FORWARDERS ACT, 1942(49 U.S.C. SECS. 1017(A), (B), (D), 1005,
1012, 1021(D)). 

IN ADDITION TO THE PRICE CONTROL ACT, THE OTHER MAJOR REGULATORY
STATUTES ENACTED IN RESPONSE TO THE RECENT WARTIME EXIGENCIES ALSO
CONTAIN THESE PROVISIONS: 

SECOND WAR POWERS ACT (50 U.S.C. APP. SECS. 633, SUBSECS.  2(A)(3),
(4)). 

STABILIZATION ACT OF 1942(50 U.S.C. APP. SECS. 967(B), 962). 

WAR AND DEFENSE CONTRACT ACTS (50 U.S.C. APP. SEC. 1152(A)(3), (4)). 

WAR LABOR DISPUTES ACT (50 U.S.C. APP. SEC. 1507(A)(3)(B)). 

VERY RECENT REGULATORY STATUTES, WHOSE CONSTRUCTION MAY ALSO BE
AFFECTED OR DETERMINED BY THE RULING OF THE COURT IN THE PRESENT CASE,
INCLUDE:    ATOMIC ENERGY ACT OF 1946(42 U.S.C. SECS. 1812(A)(3),
1810(C)). 

LABOR MANAGEMENT RELATIONS ACT OF 1947, SEC. 101, SUBSECS.  11, 6;
SEC. 207(C), 61 STAT. 136, 150, 140, 155. 

FN5  ITALICS HAVE BEEN ADDED HERE AND IN ALL OTHER QUOTATIONS IN
WHICH THEY APPEAR, UNLESS OTHERWISE NOTED. 

FN6  "...  THE EXISTING AUTHORITY OVER PRICES IS INDIRECT AND
CIRCUMSCRIBED AND OPERATES THROUGH MEASURES WHICH ARE NOT APPROPRIATE
OR APPLICABLE IN ALL CIRCUMSTANCES.  IT HAS FURTHER BEEN WEAKENED BY
THOSE WHO PURPORT TO RECOGNIZE NEED FOR PRICE STABILIZATION YET
CHALLENGE THE EXISTENCE OF ANY EFFECTIVE POWER.  IN SOME CASES,
MOREOVER, THERE HAS BEEN EVASION AND BOOTLEGGING; IN OTHER CASES THE
OFFICE OF PRICE ADMINISTRATION AND CIVILIAN SUPPLY HAS BEEN OPENLY
DEFIED. 

"FACED NOW WITH THE PROSPECT OF INFLATIONARY PRICE ADVANCES,
LEGISLATIVE ACTION CAN NO LONGER PRUDENTLY BE POSTPONED.  OUR NATIONAL
SAFETY DEMANDS THAT WE TAKE STEPS AT ONCE TO EXTEND, CLARIFY, AND
STRENGTHEN THE AUTHORITY OF THE GOVERNMENT TO ACT IN THE INTEREST OF
THE GENERAL WELFARE."  H. DOC. NO. 332, 77TH CONG., 1ST SESS. 3(1941). 

FN7  SEE 87 CONG. REC. 9148(1941) FOR THE PRECISE WORDING OF SEC.
202, WHICH WAS THEN NUMBERED SEC. 211. 

THE FULL TEXT OF SEC. 202 AS ENACTED IS AS FOLLOWS: 

"(A)  THE ADMINISTRATOR IS AUTHORIZED TO MAKE SUCH STUDIES AND
INVESTIGATIONS, TO CONDUCT SUCH HEARINGS, AND TO OBTAIN SUCH
INFORMATION AS HE DEEMS NECESSARY OR PROPER TO ASSIST HIM IN
PRESCRIBING ANY REGULATION OR ORDER UNDER THIS ACT, OR IN THE
ADMINISTRATION AND ENFORCEMENT OF THIS ACT AND REGULATIONS, ORDERS, AND
PRICE SCHEDULES THEREUNDER. 

"(B)  THE ADMINISTRATOR IS FURTHER AUTHORIZED, BY REGULATION OR
ORDER, TO REQUIRE ANY PERSON WHO IS ENGAGED IN THE BUSINESS OF DEALING
WITH ANY COMMODITY, OR WHO RENTS OR OFFERS FOR RENT OR ACTS AS BROKER
OR AGENT FOR THE RENTAL OF ANY HOUSING ACCOMMODATIONS, TO FURNISH ANY
SUCH INFORMATION UNDER OATH OR AFFIRMATION OR OTHERWISE, TO MAKE AND
KEEP RECORDS AND OTHER DOCUMENTS, AND TO MAKE REPORTS, AND HE MAY
REQUIRE ANY SUCH PERSON TO PERMIT THE INSPECTION AND COPYING OF RECORDS
AND OTHER DOCUMENTS, THE INSPECTION OF INVENTORIES, AND THE INSPECTION
OF DEFENSE-AREA HOUSING ACCOMMODATIONS.  THE ADMINISTRATOR MAY
ADMINISTER OATHS AND AFFIRMATIONS AND MAY, WHENEVER NECESSARY, BY
SUBPENA REQUIRE ANY SUCH PERSON TO APPEAR AND TESTIFY OR TO APPEAR AND
PRODUCE DOCUMENTS, OR BOTH, AT ANY DESIGNATED PLACE. 

"(C)  FOR THE PURPOSE OF OBTAINING ANY INFORMATION UNDER SUBSECTION
(A), THE ADMINISTRATOR MAY BY SUBPENA REQUIRE ANY OTHER PERSON TO
APPEAR AND TESTIFY OR TO APPEAR AND PRODUCE DOCUMENTS, OR BOTH, AT ANY
DESIGNATED PLACE. 

"(D)  THE PRODUCTION OF A PERSON'S DOCUMENTS AT ANY PLACE OTHER THAN
HIS PLACE OF BUSINESS SHALL NOT BE REQUIRED UNDER THIS SECTION IN ANY
CASE IN WHICH, PRIOR TO THE RETURN DATE SPECIFIED IN THE SUBPENA ISSUED
WITH RESPECT THERETO, SUCH PERSON EITHER HAS FURNISHED THE
ADMINISTRATOR WITH A COPY OF SUCH DOCUMENTS (CERTIFIED BY SUCH PERSON
UNDER OATH TO BE A TRUE AND CORRECT COPY), OR HAS ENTERED INTO A
STIPULATION WITH THE ADMINISTRATOR AS TO THE INFORMATION CONTAINED IN
SUCH DOCUMENTS. 

"(E)  IN CASE OF CONTUMACY BY, OR REFUSAL TO OBEY A SUBPENA SERVED
UPON, ANY PERSON REFERRED TO IN SUBSECTION (C), THE DISTRICT COURT FOR
ANY DISTRICT IN WHICH SUCH PERSON IS FOUND OR RESIDES OR TRANSACTS
BUSINESS, UPON APPLICATION BY THE ADMINISTRATOR, SHALL HAVE
JURISDICTION TO ISSUE AN ORDER REQUIRING SUCH PERSON TO APPEAR AND GIVE
TESTIMONY OR TO APPEAR AND PRODUCE DOCUMENTS, OR BOTH; AND ANY FAILURE
TO OBEY SUCH ORDER OF THE COURT MAY BE PUNISHED BY SUCH COURT AS A
CONTEMPT THEREOF.  THE PROVISIONS OF THIS SUBSECTION SHALL ALSO APPLY
TO ANY PERSON REFERRED TO IN SUBSECTION (B), AND SHALL BE IN ADDITION
TO THE PROVISIONS OF SECTION 4(A). 

"(F)  WITNESSES SUBPENAED UNDER THIS SECTION SHALL BE PAID THE SAME
FEES AND MILEAGE AS ARE PAID WITNESSES IN THE DISTRICT COURTS OF THE
UNITED STATES. 

"(G)  NO PERSON SHALL BE EXCUSED FROM COMPLYING WITH ANY REQUIREMENTS
UNDER THIS SECTION BECAUSE OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION,
BUT THE IMMUNITY PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF FEBRUARY
11, 1893(U.S.C., 1934 EDITION, TITLE 49, SEC. 46), SHALL APPLY WITH
RESPECT TO ANY INDIVIDUAL WHO SPECIFICALLY CLAIMS SUCH PRIVILEGE. 

"(H)  THE ADMINISTRATOR SHALL NOT PUBLISH OR DISCLOSE ANY INFORMATION
OBTAINED UNDER THIS ACT THAT SUCH ADMINISTRATOR DEEMS CONFIDENTIAL OR
WITH REFERENCE TO WHICH A REQUEST FOR CONFIDENTIAL TREATMENT IS MADE BY
THE PERSON FURNISHING SUCH INFORMATION, UNLESS HE DETERMINES THAT THE
WITHHOLDING THEREOF IS CONTRARY TO THE INTEREST OF THE NATIONAL DEFENSE
AND SECURITY. 

"(I)  ANY PERSON SUBPENAED UNDER THIS SECTION SHALL HAVE THE RIGHT TO
MAKE A RECORD OF HIS TESTIMONY AND TO BE REPRESENTED BY COUNSEL."  56
STAT. 23, 30, AS AMENDED BY SEC. 105 OF THE STABILIZATION EXTENSION ACT
OF 1944, 58 STAT. 632, 637, 50 U.S.C. SEC. 922. 

FN8  87 CONG. REC. AT 9232; SEE ALSO ID. AT 9226. 

FN9  ID. AT 9231. 

FN10  ID. AT 9233. 

FN11  AS POINTED OUT BY THE SENATE COMMITTEE,  "...  IN AMENDING THE
HOUSE BILL, THE COMMITTEE HAS SOUGHT TO STRENGTHEN IT.  THAT BILL, WHEN
WE WERE NOT ACTUALLY AT WAR, MIGHT HAVE SUFFICED.  IF THE AUTHORITY
GRANTED HAD PROVED INADEQUATE, ADDITIONAL POWERS MIGHT HAVE BEEN SOUGHT
AND THERE MIGHT HAVE BEEN TIME TO DO SO.  BUT THE SWIFTLY MOVING PACE
OF WAR, WITH EVIDENCES OF INFLATION ALREADY APPARENT, LEAVES LITTLE
TIME FOR THE LUXURY OF EXPERIMENT.  THE NEED FOR PRICE STABILITY IS
URGENT.  ..."  S.REP.  NO. 931, 77TH CONG., 2D SESS. 3(JAN.  2, 1942). 

FN12  HEARINGS BEFORE THE SENATE COMMITTEE ON BANKING AND CURRENCY ON
H.R. 5990, 77TH CONG., 1ST SESS. 192(1941).  (THE REFERENCE IS
CONTAINED IN A BRIEF FILED WITH THE COMMITTEE BY THE GENERAL COUNSEL OF
THE OFFICE OF PRICE ADMINISTRATION.) 

FN13  ID. AT 193. 

IT IS APPARENTLY CONCEDED THAT THE WRITTEN STATEMENT PRESENTED TO THE
SENATE COMMITTEE BY THE GENERAL COUNSEL OF THE OPA IN ITS HEARINGS SETS
FORTH THE CONSTRUCTION THAT THIS COURT SUSTAINS IN AFFIRMING THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT IN THIS
CASE.  WE MAY ACCORD TO THE CONSTRUCTION EXPOUNDED DURING THE COURSE OF
THE HEARINGS AT LEAST THAT WEIGHT WHICH THIS COURT HAS IN THE PAST
GIVEN TO THE CONTEMPORANEOUS INTERPRETATION OF AN ADMINISTRATIVE AGENCY
AFFECTED BY A STATUTE, ESPECIALLY WHERE IT APPEARS THAT THE AGENCY HAS
ACTIVELY SPONSORED THE PARTICULAR PROVISIONS WHICH IT INTERPRETS.  AND
WE MAY TREAT THOSE CONTEMPORANEOUS EXPRESSIONS OF OPINION AS "HIGHLY
RELEVANT AND MATERIAL EVIDENCE OF THE PROBABLE GENERAL UNDERSTANDING OF
THE TIMES AND OF THE OPINIONS OF MEN WHO PROBABLY WERE ACTIVE IN THE
DRAFTING OF THE STATUTE.  AS SUCH, THEY ARE ENTITLED TO SERIOUS
CONSIDERATION  ..."  WHITE V. WINCHESTER CLUB, 315 U.S. 32, 41(1942). 
SEE ALSO UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534,
549(1940); HASSETT V. WELCH, 303 U.S. 303, 310-311(1938). 

FN14  HEARINGS, SUPRA NOTE 12, AT 181; SEE ALSO ID. AT 154, 179
80(ORAL TESTIMONY), 190-200; 88 CONG. REC. 61, 693-94(1942); S. REP.
NO. 931, 77TH CONG., 2D SESS. 8-9, 19(1942). 

FN15 SECTION 5, 40 STAT. 277(1917).  ALTHOUGH SEC. 4 OF THE LEVER
ACT, MAKING IT UNLAWFUL FOR ANY PERSON TO MAKE ANY "UNJUST OR
UNREASONABLE RATE OR CHARGE" FOR HANDLING OR DEALING IN NECESSARIES,
WAS HELD UNCONSTITUTIONAL BECAUSE OF LACK OF AN ASCERTAINABLE STANDARD
OF GUILT IN UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81(1921), THE
VALIDITY OF THE LICENSING AND RECORD-KEEPING PROVISIONS WAS NOT
CHALLENGED. 

FN16  HEARINGS, SUPRA NOTE 12, AT 183; SEE ALSO ID. AT 154. 

FN17  ID. AT 184. 

THE REPORT OF THE SENATE COMMITTEE, FOLLOWING THESE HEARINGS,
RECOGNIZED THE KEY IMPORTANCE OF LICENSING PROVISIONS FOR EFFECTIVE
ENFORCEMENT OF THE STATUTE, NOTING THAT THE "BROAD LICENSING POWER"
WHICH HAD BEEN GIVEN TO THE FOOD ADMINISTRATOR UNDER THE LEVER ACT "WAS
EXTENSIVELY AND EFFECTIVELY USED."  THE REPORT SPECIFICALLY REFERRED
ALSO TO THE EXPERIENCE OF THE FUEL ADMINISTRATION, WHICH AT FIRST
LACKED THE POWER TO LICENSE, THEN DISCOVERED THE NEED FOR THE POWER,
AND AFTER ACQUIRING IT, SECURED "HIGHLY EFFECTIVE" ENFORCEMENT
RESULTS.  THE REPORT CONCLUDED THAT  "...  WHERE THERE ARE MANY
SELLERS, AS IN RETAILING, FOR EXAMPLE, IT IS IMPOSSIBLE TO DETERMINE
WHO IS SUBJECT TO CONTROL, MUCH LESS ENFORCE PRICE REGULATIONS, WITHOUT
LICENSING.  OF THESE FACTS INDUSTRY IS FULLY AWARE.  LICENSING PROVIDES
A SIMPLE AND DIRECT CONTROL OVER VIOLATORS  ..."  S.REP.  NO. 931, 77TH
CONG., 2D SESS. 8-9. 

SPEAKING CRITICALLY OF THE CONFERENCE REPORT, REPRESENTATIVE GIFFORD,
WHO WAS A MANAGER ON THE PART OF THE HOUSE AND HAD REFUSED TO SIGN THE
REPORT AND THE STATEMENT BY THE MANAGERS, DESCRIBED LICENSING THEN IN
PRACTICE IN CANADA AS A PARALLEL TO THE LICENSING PROPOSED BY THE
AMENDED BILL.  HE CALLED THE ATTENTION OF THE HOUSE TO THE CANADIAN
STATEMENT OF POLICY:  "THESE RESTRICTIONS ARE NOT DESIGNED TO CURTAIL
BUSINESS OPERATIONS IN ANY WAY.  BUT BY PLACING EVERY PERSON WHO IN ANY
WAY HANDLES THE COMMODITIES NAMED IN THE ORDER UNDER LICENSE, THE BOARD
WILL HAVE THE MACHINERY WITH WHICH TO MAKE SPEEDY CHECKS ON AVAILABLE
STOCKS AND TO POLICE MORE EFFECTIVELY ANY PRICE-FIXING ORDER WHICH MAY
BE INSTITUTED."  88 CONG. REC. 672(1942).  (REP. GIFFORD QUOTED THE
STATEMENT FROM "A COMPILED BRIEF ON THE LICENSING METHODS;" IT APPEARS,
TOGETHER WITH OTHER DATA REFERRED TO BY REP. GIFFORD, IN THE SECTION ON
LICENSING METHODS IN THE BRIEF PRESENTED DURING THE SENATE HEARINGS BY
THE GENERAL COUNSEL OF THE OPA, CITED SUPRA NOTE 12, AT P. 188.) 

FN18  HEARINGS, SUPRA NOTE 12, AT 184. 

FN19  IN ASKING UNANIMOUS CONSENT FOR THE COMMITTEE TO FILE ITS
REPORT ON THE NEXT DAY, SENATOR BARKLEY, THE MAJORITY LEADER AND A
MEMBER OF THE COMMITTEE, STATED ON THE FLOOR OF THE SENATE ON JANUARY
2, 1942, THAT THESE "HEARINGS (HELD BEFORE THE SENATE COMMITTEE FROM
DECEMBER 9-17) HAVE BEEN IN PRINT FOR A WEEK OR TWO."  87 CONG. REC.
10142.  THE SENATE VOTE APPROVING THE HOUSE BILL AS AMENDED WAS NOT
TAKEN UNTIL JANUARY 10, MORE THAN TWO WEEKS AFTER THE HEARINGS APPEARED
IN PRINTED FORM.  88 CONG. REC. 242.  THE HOUSE AGREED TO THE
CONFERENCE REPORT ON JANUARY 26.  ID. AT 689.  THE SENATE ACCEPTED THE
CONFERENCE REPORT ON JANUARY 27.  ID. AT 725.  AND THE BILL WAS
APPROVED AND SIGNED BY THE PRESIDENT ON JANUARY 30.  ID. AT 911. 

IT IS ALSO OF SOME INTEREST TO NOTE THE STATEMENT, CONTAINED IN THE
SENATE REPORT ON THE BILL, THAT A SUBCOMMITTEE WHICH HAD BEEN APPOINTED
IMMEDIATELY AFTER THE CONCLUSION OF THE DECEMBER 9-17 HEARINGS
"EXTENSIVELY REVISED AND STRENGTHENED THE HOUSE BILL IN THE LIGHT OF
THE HEARINGS AND THE ONSLAUGHT OF WAR."  S. REP. NO. 931, 77TH CONG.,
2D SESS. 6(JAN.  2, 1942).  WE ASSUME THAT THIS RECORD OF THE SENATE
COMMITTEE PROCEEDINGS MERITS THE SAME PRESUMPTION OF REGULARITY AS THE
RECORD OF A COUNTY CRIMINAL COURT.  CF. FOSTER V. ILLINOIS, 332 U.S.
134, 138(1947). 

FN20  SEE JOINT HEARINGS ON S. 2475 AND H.R. 7200(FAIR LABOR
STANDARDS ACT), 75TH CONG., 1ST SESS. 61(1937). 

FN21  HECHT V. MALLEY, 265 U.S. 144, 153(1924); SEE ALSO MISSOURI V.
ROSS, 299 U.S. 72, 75(1936); SESSIONS V. ROMADKA, 145 U.S. 29,
42(1892). 

FN22  SEE DIGEST OF BRIEF FOR APPELLANT IN WILSON V. UNITED STATES,
55 L. ED. 771, 773(1911). 

FN23  WILSON V. UNITED STATES, 221 U.S. 361, 380(1911).  HOLMES, J.,
IN HEIKE V. UNITED STATES, 227 U.S. 131, 143(1913), EMPHASIZED THAT THE
DECISION IN WILSON WENT "UPON THE ABSENCE OF CONSTITUTIONAL PRIVILEGE,
NOT UPON THE GROUND OF STATUTORY IMMUNITY IN SUCH A CASE." 

FN24  WILSON, SUPRA NOTE 23, AT 381.  IN A LATER DECISION INVOLVING
THE ALLEGED ABILITY OF CORPORATE OFFICERS TO ASSERT CONSTITUTIONAL
PRIVILEGE IN RELATION TO RECORDS REQUIRED TO BE KEPT UNDER A REGULATORY
STATUTE, HUGHES, J., SPEAKING FOR THE COURT, FURTHER SPELLED OUT THE
IMPLICATIONS OF THE WILSON CASE AND OF THE "REQUIRED RECORDS"
DOCTRINE: 

"...  THE TRANSACTIONS TO WHICH THE REQUIRED REPORTS RELATE ARE
CORPORATE TRANSACTIONS SUBJECT TO THE REGULATING POWER OF CONGRESS. 
AND, WITH REGARD TO THE KEEPING OF SUITABLE RECORDS OF CORPORATE
ADMINISTRATION, AND THE MAKING OF REPORTS OF CORPORATE ACTION, WHERE
THESE ARE ORDERED BY THE COMMISSION UNDER THE AUTHORITY OF CONGRESS,
THE OFFICERS OF THE CORPORATION, BY VIRTUE OF THE ASSUMPTION OF THEIR
DUTIES AS SUCH, ARE BOUND BY THE CORPORATE OBLIGATION AND CANNOT CLAIM
A PERSONAL PRIVILEGE IN HOSTILITY TO THE REQUIREMENT."  BALTIMORE &
O.R. CO. V. I.C.C., 221 U.S. 612, 622-23(1911). 

THUS THE SIGNIFICANT ELEMENT IN DETERMINING THE ABSENCE OF
CONSTITUTIONAL PRIVILEGE WAS THE FACT THAT THE RECORDS IN QUESTION HAD
BEEN VALIDLY REQUIRED TO BE KEPT TO ENABLE THE COMMISSION "PROPERLY TO
PERFORM ITS DUTY TO ENFORCE THE LAW."  ID. AT 622.  THE FACT THAT THE
INDIVIDUALS CLAIMING THE PRIVILEGE WERE CORPORATE OFFICERS WAS
SIGNIFICANT ONLY IN THAT THE BUSINESS TRANSACTIONS SUBJECT TO THE
INTERSTATE COMMERCE ACT AND THE RECORDS REQUIRED TO BE KEPT WERE
CORPORATE.  AND, AS CORPORATE OFFICERS, THEY WERE BOUND BY THE
OBLIGATION IMPOSED BY THE STATUTE UPON THEIR CORPORATION TO KEEP THE
RECORD.  IN OTHER WORDS, THEY WERE DEEMED CUSTODIANS OF THE RECORDS FOR
THE INTERSTATE COMMERCE COMMISSION, NOT MERELY FOR THE CORPORATION. 
HAD THE TRANSACTIONS THERE REGULATED, AND THE RECORDS THERE REQUIRED,
CONCERNED AN UNINCORPORATED BUSINESS, JUSTICE HUGHES' RATIONALE
SUSTAINING THE ABSENCE OF CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION WOULD STILL APPLY WITH UNDIMINISHED FORCE. 

THIS DECISION WAS CITED WITH APPROVAL IN UNITED STATES V. DARBY, 312
U.S. 100, 125(1941), IN SUPPORT OF THE COURT'S HOLDING THAT IT IS
CONSTITUTIONAL FOR CONGRESS, AS A MEANS OF ENFORCING THE VALID
REGULATIONS IMPOSED BY THE FAIR LABOR STANDARDS ACT, TO REQUIRE AN
EMPLOYER TO KEEP RECORDS OF WAGES AND HOURS OF HIS EMPLOYEES.  SEE NOTE
42 INFRA.    FN25  OTHER STATE SUPREME COURT DECISIONS, SUBSEQUENT TO
THE WILSON CASE, SIMILARLY TREAT AS NON-PRIVILEGED, RECORDS REQUIRED BY
STATUTE TO BE KEPT BY SUCH INDIVIDUALS AS LICENSED FISH DEALERS,
PALADINI V. SUPERIOR COURT, 178 CAL. 369, 372-74, 173 P. 588,
590(1918); JUNK DEALERS REGULATED BY MUNICIPAL ORDINANCE, ST. LOUIS V.
BASKOVITZ, 273 MO. 543, 201 S.W. 870(1918), OR BY STATUTE, STATE V.
LEGORA, 162 TENN. 122, 127-28, 34 S.W.2D 1056, 1057-58(1931), CF.
ROSENTHAL V. NEW YORK, 226 U.S. 260, 268-69(1912); DEALERS IN RAW FURS,
STATE V. STEIN, 215 MINN. 308, 9 N.W.2D 763(1943); AND LICENSED MONEY
LENDERS, FINANCIAL AID CORP. V. WALLACE, 216 IND. 114, 117-119, 122
124, 23 N.E.2D 472, 474, 476(1939). 

FN26  HEIKE, SUPRA NOTE 23, AT 142. 

FN27  SEE ANALYSIS OF THE EARLIER PROVISOS IN 8 WIGMORE, EVIDENCE,
511 N.9(3D ED. 1940), AND IN THE BRIEF SUBMITTED BY THE GOVERNMENT IN
HEIKE, A DIGEST OF WHICH APPEARS AT 227 U.S. 137.  WHETHER THE STRONGER
WORDING IN THE PRICE CONTROL ACT AND OTHER RECENT ENACTMENTS BE DEEMED
TO INDICATE A "NEW LEGISLATIVE PURPOSE," AS THE MAJORITY OF THE COURT
IN UNITED STATES V. MONIA, 317 U.S. 424(1943), RULED THAT IT DID IN
CONNECTION WITH A PROCEDURAL POINT NOT INVOLVED IN THE PRESENT CASE -
OR BE DEEMED NOTHING MORE THAN "A CAREFUL REPHRASING OF A CONVENTIONAL
STATUTORY PROVISION," AS THE DISSENTERS IN MONIA, SUPRA AT 446,
BELIEVED, THE MORE STRINGENT PHRASING OF THE PRICE CONTROL ACT PROVISO
MUST, IN EITHER VIEW, BE REGARDED AS STRENGTHENING THE APPLICABILITY OF
THE RULE OF CONSTRUCTION OF THE HEIKE CASE. 

THE PRECISE HOLDING IN MONIA WAS THAT A WITNESS BEFORE AN
INVESTIGATORY BODY NEED NOT CLAIM HIS PRIVILEGE AS A PREREQUISITE TO
EARNING IMMUNITY UNDER A PRE-1933 STATUTE WHICH OFFERED IMMUNITY
WITHOUT ANY REFERENCE TO THE NEED FOR MAKING SUCH A CLAIM.  THE
MAJORITY CONSIDERED THE HEIKE DECISION INAPPLICABLE TO MONIA BECAUSE
THE RELEVANT TERMS OF THE IMMUNITY PROVISO INVOLVED IN THE LATTER CASE
WERE SO PLAIN AND SO SHARPLY IN CONTRAST WITH THE WORDING OF THE
ENACTMENTS AFTER 1933, WHICH (INCLUDING THE PRICE CONTROL ACT)
EXPRESSLY REQUIRE THE ASSERTION OF THE CLAIM, THAT CONGRESS COULD NOT
HAVE INTENDED THE PRE-1933 STATUTE TO REQUIRE A WITNESS TO ASSERT HIS
CLAIM.  AND IT WAS EMPHASIZED THAT, TO CONSTRUE CONGRESSIONAL INTENTION
OTHERWISE IN THOSE CIRCUMSTANCES, MIGHT WELL RESULT IN ENTRAPMENT OF
WITNESSES AS TO TESTIMONY CONCEDEDLY PRIVILEGED.  WE DO NOT PERCEIVE
SUCH DISTINGUISHING FACTORS IN THE CASE AT BAR, AND ACCORDINGLY
CONSIDER THE HEIKE RATIONALE FULLY APPLICABLE HERE. 

FN28  SEE JUDGE DELEHANT'S WELL-REASONED DISCUSSION, IN BOWLES V.
MISLE, 64 F.SUPP.  835, 843(1946), OF THE "PUBLIC OR SEMI-PUBLIC"
CHARACTER OF RECORDS KEPT BY A NON-CORPORATE ENTREPRENEUR SUBJECT IN
HIS BUSINESS TO SUCH GOVERNMENTAL REGULATION:  "...  IF THE REGULATING
AUTHORITY MAY BE INTERCEPTED ALTOGETHER AT THE DOOR OF A REGULATED
BUSINESS IN ITS QUEST OF INFORMATION TOUCHING THE OBSERVANCE OF THE LAW
AND APPLICABLE REGULATIONS, ITS MINISTRY MUST BE FRUITLESS.  AND IT CAN
BE NO MORE EFFECTIVE IF, REALISTICALLY VIEWED, THE ADMINISTRATOR'S
EXAMINATION MAY BE MADE ONLY AT A BARGAIN WHICH ABSOLVES THE PROPRIETOR
OF THE BUSINESS FROM THE SANCTIONS, WHETHER CIVIL OR CRIMINAL, BY LAW
PROVIDED FOR SUCH VIOLATIONS OF THE REGULATIONS, AND, THEREFORE, OF THE
LAW AS EXAMINATION MAY DISCLOSE.  ..." 

COMPARE THE DICTUM IN UNITED STATES V. MULLIGAN, 268 F. 893(N.D.N.Y.
1920), THAT RECORDS REQUIRED TO BE KEPT BY AN UNINCORPORATED
BUSINESSMAN UNDER THE LEVER ACT WERE NOT PRIVILEGED, AND THAT
INFORMATION CONTAINED THEREIN WAS AVAILABLE FOR USE IN CRIMINAL
PROSECUTIONS AGAINST THE RECORD-KEEPER HIMSELF.  LIKE THE PRICE CONTROL
ACT, THE LEVER ACT CONTAINED A COMPULSORY TESTIMONY IMMUNITY
PROVISION.  SEC. 25, 40 STAT. 285.  THE MEMORANDUM FILED WITH THE
SENATE COMMITTEE, CITED SUPRA NOTE 12, AT 194, SPECIFICALLY REFERRED TO
THE "WELL-STATED" OPINION IN THE MULLIGAN CASE. 

FN29  THE EXTREME UNLIKELIHOOD THAT SUCH A DISTINCTION, NOT EXPRESSLY
STATED ANYWHERE IN THE ACT, WAS NEVERTHELESS INTENDED BY CONGRESS
BECOMES EVEN MORE APPARENT IN THE LIGHT OF EXPRESS PROVISION IN THE
STATUTE, SEC. 4(A), MAKING IT UNLAWFUL FOR ANY PERSON SUBJECT TO THE
ACT, WHETHER IN CORPORATE OR UNINCORPORATED BUSINESS ENTERPRISE, TO
FAIL TO COMPLY WITH THE RECORD-KEEPING REQUIREMENTS OF SEC. 202(B), AND
MAKING IT UNLAWFUL, SEC. 205(B), FOR ANY SUCH PERSON TO MAKE "ANY
STATEMENT OR ENTRY FALSE IN ANY MATERIAL RESPECT IN ANY DOCUMENT OR
REPORT REQUIRED TO BE KEPT OR FILED" UNDER SEC. 202(B).  EVEN IN THE
ABSENCE OF THE JUDICIAL BACKGROUND HIGHLIGHTED BY THE RATIONALE OF THE
WILSON AND HEIKE DECISIONS, IT WOULD BE DIFFICULT TO IMAGINE THAT
RECORDS PROPERLY REQUIRED TO BE KEPT BY THE GOVERNMENT, FOR GOVERNMENT
USE IN THE ADMINISTRATION OF A REGULATORY STATUTE, WITH PENALTIES OF
FINES AND IMPRISONMENT APPLICABLE AGAINST ANY PERSON SUBJECT TO THE
STATUTE WHO FAILS TO KEEP THOSE RECORDS OR WHO FALSIFIES ENTRIES IN
THEM, COULD STILL BE REGARDED BY CONGRESS OR THE PUBLIC AS PRIVATE
RECORDS CONCERNING WHICH THE RECORDER MAY ASSERT A PRIVILEGE AGAINST
SELF-INCRIMINATION. 

FN30  THE PHRASE "ANY REQUIREMENTS" APPEARS ALSO IN THE IMMUNITY
PROVISION OF THE ATOMIC ENERGY ACT OF 1946, 42 U.S.C. SEC. 1812(A)(3). 
THERE, AS IN THE PRICE CONTROL ACT, SOME OF THE REQUIREMENTS REFERRED
TO WOULD, IN THE ABSENCE OF THE SECTION, BE EXCUSABLE BECAUSE OF
PRIVILEGE - E.G., COMPELLED ORAL TESTIMONY - WHILE OTHER REQUIREMENTS,
INCLUDING THE COMPULSORY PRODUCTION OF RECORDS WHICH HAD BEEN KEPT
PURSUANT TO THE STATUTE (SEC. 1810(C)), WOULD, UNDER THE WILSON
DOCTRINE, HAVE THE SAME NON-PRIVILEGED (AND HENCE NON-IMMUNIZING)
STATUS AS THE SALES RECORD INVOLVED IN THE PRESENT CASE.  COMPARE ALSO
THE PHRASEOLOGY USED IN SUCH STATUTES AS THE WAR AND DEFENSE CONTRACT
ACTS, 50 U.S.C. APP. SEC. 1152(A)(3), (4), AND FREIGHT FORWARDERS ACT
(1942), 49 U.S.C. SEC. 1017(A).  (B), (D). 

FN31  COMPARE THE PARAPHRASE OF SEC. 202(G) CONTAINED IN THE
COMMITTEE REPORTS:  "... ALTHOUGH NO PERSON IS EXCUSED FROM COMPLYING
WITH ANY REQUIREMENT OF THIS SUBSECTION BECAUSE OF HIS PRIVILEGE
AGAINST SELF-INCRIMINATION, THE IMMUNITY PROVISIONS OF THE COMPULSORY
TESTIMONY ACT OF FEBRUARY 11, 1893, ARE MADE APPLICABLE WITH RESPECT TO
ANY INDIVIDUAL WHO SPECIFICALLY CLAIMS SUCH PRIVILEGE."  S. REP. NO.
931, 77TH CONG., 2D SESS. 21; H.R. REP. NO. 1409, 77TH CONG., 1ST SESS.
9.  (HERE, AS ELSEWHERE UNLESS OTHERWISE NOTED.) 

FN32  SECTION 6 OF THE INTERSTATE COMMERCE ACT OF FEB. 4, 1887, C.
104, 24 STAT. 380, REQUIRED EVERY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF THE STATUTE TO FILE WITH THE COMMISSION COPIES OF ITS
SCHEDULES AND TARIFFS OF RATES, FARES, AND CHARGES, AND OF ALL
CONTRACTS AND AGREEMENTS BETWEEN CARRIERS. 

FN33  IT IS FURTHER SUGGESTED THAT THE PRESENCE OF STATUTORY
PROVISIONS FOR CONFIDENTIAL TREATMENT, IN CERTAIN LIMITED RESPECTS, OF
INFORMATION OBTAINED BY THE ADMINISTRATOR IS INCONSISTENT WITH THE
VIEWS OF THIS OPINION.  WE FIND NO SUCH INCONSISTENCY IN THE PRESENCE
OF SECS. 4(C) AND 202(H), THE PROVISIONS WHICH SPECIFY THE TYPES OF
CONFIDENTIAL SAFEGUARDS INTENDED. 

"SECTION 4(C) AFFORDS PROTECTION TO THOSE PERSONS REQUIRED TO
DISCLOSE INFORMATION TO THE ADMINISTRATOR BY MAKING IT UNLAWFUL FOR ANY
OFFICER OR EMPLOYEE OF THE GOVERNMENT, OR FOR ANY ADVISER OR CONSULTANT
TO THE ADMINISTRATOR IN HIS OFFICIAL CAPACITY, TO DISCLOSE OR TO USE
FOR HIS PERSONAL BENEFIT, ANY INFORMATION OBTAINED UNDER THE BILL. 
FURTHER PROVISION FOR CONFIDENTIAL TREATMENT OF SUCH INFORMATION IS
FOUND IN SECTION 202(B)(CHANGED IN CONFERENCE TO SEC. 202(H)).  ...
INFORMATION TO THE ADMINISTRATOR UNDER THE BILL BY DIRECTING THE
ADMINISTRATOR, UPON THE REQUEST OF THE PARTY FURNISHING SUCH
INFORMATION, OR IF HE DEEMS SUCH INFORMATION CONFIDENTIAL, NOT TO
DISCLOSE SUCH INFORMATION UNLESS HE DEEMS THAT THE PUBLIC INTEREST
REQUIRES SUCH DISCLOSURE."  S. REP. NO. 931, 77TH CONG., 2D SESS. 20
21. 

THIS IS SUBSTANTIALLY THE SAME SORT OF CONFIDENTIAL TREATMENT
PROVIDED FOR BY THE HEPBURN ACT OF 1906, 34 STAT. 594, AMENDING THE
INTERSTATE COMMERCE ACT:  "ANY EXAMINER WHO DIVULGES ANY FACT OR
INFORMATION WHICH MAY COME TO HIS KNOWLEDGE DURING THE COURSE OF SUCH
EXAMINATION, EXCEPT IN SO FAR AS HE MAY BE DIRECTED BY THE COMMISSION
OR BY A COURT OR JUDGE THEREOF, SHALL BE SUBJECT, UPON CONVICTION IN
ANY COURT OF THE UNITED STATES OF COMPETENT JURISDICTION, TO A FINE OF
NOT MORE THAN FIVE THOUSAND DOLLARS OR IMPRISONMENT FOR A TERM NOT
EXCEEDING TWO YEARS, OR BOTH."  49 U.S.C. SEC. 20(7)(F).  NUMEROUS
OTHER STATUTES HAVE INCORPORATED ALMOST IDENTICALLY WORDED PROVISIONS. 
SEE E.G., MOTOR CARRIER ACT OF 1935, 49 U.S.C. SEC. 322(D). 

IN STATUTES SUCH AS THESE, WHERE CONGRESS VALIDLY DISTINGUISHES
REQUIRED RECORDS FROM PRIVATE PAPERS, WITH RESPECT TO THE AVAILABILITY
OF THE REQUIRED DOCUMENTS AS EVIDENCE IN CRIMINAL OR OTHER PROCEEDINGS
TO ENFORCE THE STATUTE FOR WHOSE EFFECTUATION THEY ARE KEPT, NOTHING IN
LOGIC NOR HISTORICAL PRACTICE REQUIRES CONGRESS AT THE SAME TIME TO
TREAT THE RECORDS AS PUBLIC IN THE SENSE THAT THEY BE OPEN AT ALL TIMES
TO SCRUTINY BY THE MERELY CURIOUS.  SEE COLEMAN V. UNITED STATES, 153
F.2D 400, 402-04(C.C.A. 6, 1946).  CONGRESS EXPRESSLY FORECLOSED SUCH A
RESULT IN THE EMERGENCY PRICE CONTROL ACT, AND THIS OPINION NEITHER
REQUIRES NOR PERMITS IT. 

FN34  HEIKE, SUPRA NOTE 23, AT 141. 

FN35  ID. AT 141-42.  IT WOULD APPEAR THAT THE PERSUASIVE BRIEF FOR
THE GOVERNMENT IN THIS CASE, PREPARED WITH THE ASSISTANCE OF EMINENT
COUNSEL, CALLED FORTH A HOLMESIAN ECHO. 

FN36  SEE HEIKE, SUPRA NOTE 23, AT 142; BROWN V. WALKER, 161 U.S.
591, 594-5(1896); HALE V. HENKEL, 201 U.S. 43, 67(1906).  SEE ALSO THE
STATEMENT MADE IN THE HOUSE BY REPRESENTATIVE WISE, OF THE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, IN PRESENTING THE BILL WHICH BECAME
THE BASIS OF THE 1893 COMPULSORY TESTIMONY ACT:  "THE WHOLE SCOPE AND
EFFECT OF THE ACT IS SIMPLY TO MEET THE DECISION RENDERED RECENTLY BY
THE SUPREME COURT IN THE CASE KNOWN AS 'THE COUNCILMAN CASE.'"  24
CONG. REC. 503(1893). 

FN37  88 CONG. REC. 700(1942). 

FN38  ENDICOTT JOHNSON CORP. V. PERKINS, 317 U.S. 501, 509(1943). 

FN39  HEIKE, SUPRA NOTE 23, AT 142. 

FN40  UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534,
543(1940); SEE ALSO MISSOURI PACIFIC R. CO. V. BOONE, 270 U.S. 466,
472(1926). 

"A RESTRICTIVE INTERPRETATION SHOULD NOT BE GIVEN A STATUTE MERELY
BECAUSE CONGRESS HAS CHOSEN TO DEPART FROM CUSTOM OR BECAUSE GIVING
EFFECT TO THE EXPRESS LANGUAGE EMPLOYED BY CONGRESS MIGHT REQUIRE A
COURT TO FACE A CONSTITUTIONAL QUESTION."  UNITED STATES V. SULLIVAN,
332 U.S. 689, 693(1948). 

FN41  CF. YAKUS V. UNITED STATES, 321 U.S. 414, 422(1944). 

FN42  DAVIS V. UNITED STATES, 328 U.S. 582, 589-90(1946).  SEE ALSO
UNITED STATES V. DARBY, 312 U.S. 100, 125(1941)("SINCE  ...  CONGRESS
MAY REQUIRE PRODUCTION FOR INTERSTATE COMMERCE TO CONFORM TO THOSE
CONDITIONS (WAGES AND HOURS), IT MAY REQUIRE THE EMPLOYER, AS A MEANS
OF ENFORCING THE VALID LAW, TO KEEP A RECORD SHOWING WHETHER HE HAS IN
FACT COMPLIED WITH IT.  THE REQUIREMENT FOR RECORDS EVEN OF THE
INTRASTATE TRANSACTION IS AN APPROPRIATE MEANS TO THE LEGITIMATE END. 
..."); ARROW DISTILLERIES V. ALEXANDER; 109 F.2D 397, 404-05(1940); DI
SANTO V. UNITED STATES, 93 F.2D 948(1937).  CF. RODGERS V. UNITED
STATES, 138 F.2D 992, 995-96(1943). 

IN BOYD V. UNITED STATES, 116 U.S. 616(1886), THE COURT HELD
UNCONSTITUTIONAL, AS REPUGNANT TO THE FOURTH AND FIFTH AMENDMENTS, AN
1874 REVENUE STATUTE WHICH REQUIRED THE DEFENDANT OR CLAIMANT, ON
MOTION OF THE GOVERNMENT ATTORNEY, TO PRODUCE IN COURT HIS PRIVATE
BOOKS, INVOICES AND PAPERS, OR ELSE THE ALLEGATIONS OF THE GOVERNMENT
WERE TO BE TAKEN AS CONFESSED.  THE DOCUMENT TO WHICH THE STATUTE HAD
BEEN APPLIED IN THAT CASE WAS AN INVOICE, WHICH THE GOVERNMENT, AS WELL
AS THE DEFENDANT, TREATED THROUGHOUT THE TRIAL AND APPELLATE
PROCEEDINGS AS A PRIVATE BUSINESS RECORD.  THE GOVERNMENT DEFENDED THE
CONSTITUTIONALITY OF THE STATUTE THUS APPLIED ON THE GROUND THAT THE
ACTION WAS NOT AGAINST THE CLAIMANTS, BUT WAS MERELY A CIVIL ACTION IN
REM FOR THE FORFEITURE OF MERCHANDISE, IN WHICH ACTION THE CLAIMANTS
HAD VOLUNTARILY INTERVENED.  IT ARGUED THAT IN A FORFEITURE ACTION,
PRIVATE BOOKS AND PAPERS PRODUCED UNDER COMPULSION HAVE NO HIGHER
SANCTITY THAN OTHER PROPERTY, SINCE THE PROVISION IN THE FIFTH
AMENDMENT THAT NO PERSON "SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE
A WITNESS AGAINST HIMSELF" APPLIES ONLY TO CRIMINAL PROCEEDINGS IN
PERSONAM. 

IN REJECTING THE GOVERNMENT'S CONTENTION, THE OPINION OF THE MAJORITY
OF THE COURT PROCEEDED MAINLY UPON A COMPLEX INTERPRETATION OF THE
FOURTH AMENDMENT, TAKEN AS INTERTWINED IN ITS PURPOSE AND HISTORICAL
ORIGINS WITH THE FIFTH AMENDMENT.  UNDER THAT VIEW, "A COMPULSORY
PRODUCTION OF THE PRIVATE BOOKS AND PAPERS OF THE OWNER OF GOODS SOUGHT
TO BE FORFEITED IN SUCH A SUIT (I.E., A SUIT FOR A PENALTY OR
FORFEITURE) IS COMPELLING HIM TO BE A WITNESS AGAINST HIMSELF, WITHIN
THE MEANING OF THE FIFTH AMENDMENT TO THE CONSTITUTION, AND IS THE
EQUIVALENT OF A SEARCH AND SEIZURE - AND AN UNREASONABLE SEARCH AND
SEIZURE - WITHIN THE MEANING OF THE FOURTH AMENDMENT."  ID. AT 634-35;
SEE ALSO ID. AT 621 ET SEQ. IN OTHER WORDS, THE MAJORITY OPINION
CONSTRUED THE PROHIBITION OF THE FOURTH AMENDMENT AS APPLYING IN THE
FOREGOING CIRCUMSTANCES "TO A RETURNABLE WRIT OF SEIZURE DESCRIBING
SPECIFIC DOCUMENTS IN THE POSSESSION OF A SPECIFIC PERSON."  8 WIGMORE,
EVIDENCE 368(3D ED. 1940); SEE HALE V. HENKEL, 201 U.S. 43, 71
72(1906).    HOLDING THIS VIEW OF THE FOURTH AMENDMENT, THE MAJORITY OF
THE COURT NEVERTHELESS CAREFULLY DISTINGUISHED THE "UNREASONABLE SEARCH
AND SEIZURE" EFFECTED BY THE STATUTE BEFORE IT FROM THE "SEARCH AND
SEIZURE" WHICH CONGRESS HAD PROVIDED FOR IN REVENUE ACTS THAT REQUIRED
MANUFACTURERS TO KEEP CERTAIN RECORDS, SUBJECT TO INSPECTION (SEE,
E.G., ACT OF JULY 20, 1868, C. 186, SECS. 19, 45, 15 STAT. 133, 143,
REGULATING DISTILLERS AND RECTIFIERS):  "...  THE SUPERVISION
AUTHORIZED TO BE EXERCISED BY OFFICERS OF THE REVENUE OVER THE
MANUFACTURE OR CUSTODY OF EXCISABLE ARTICLES, AND THE ENTRIES THEREOF
IN BOOKS REQUIRED BY LAW TO BE KEPT FOR THEIR INSPECTION, ARE
NECESSARILY EXCEPTED OUT OF THE CATEGORY OF UNREASONABLE SEARCHES AND
SEIZURES.  ...  BUT, WHEN EXAMINED WITH CARE, IT IS MANIFEST THAT THERE
IS A TOTAL UNLIKENESS OF THESE OFFICIAL ACTS AND PROCEEDINGS TO THAT
WHICH IS NOW UNDER CONSIDERATION.  ..."  ID. AT 623-24. 

FN43  DAVIS, SUPRA NOTE 42, AT 602. 

FN44  IBID. 

FN45  SEE DISSENTING OPINION IN DAVIS, SUPRA NOTE 42, AT 614 N.9. 
SEE ALSO AMATO V. PORTER, 157 F.2D 719(1946); COLEMAN V. UNITED STATES,
153 F.2D 400(1946). 

FN46  SEE ALSO THE RATIONALE SET FORTH IN 8 WIGMORE, EVIDENCE SEC.
2259C (3D ED. 1940), A SECTION WHICH WAS CITED WITH APPROVAL BY THE
OPINION OF THE COURT IN DAVIS, SUPRA NOTE 42, AT 590: 

"THE STATE REQUIRES THE BOOKS TO BE KEPT, BUT IT DOES NOT REQUIRE THE
OFFICER TO COMMIT THE CRIME.  IF IN THE COURSE OF COMMITTING THE CRIME
HE MAKES ENTRIES, THE CRIMINALITY OF THE ENTRIES EXISTS BY HIS OWN
CHOICE AND ELECTION, NOT BY COMPULSION OF LAW.  THE STATE ANNOUNCED ITS
REQUIREMENT TO KEEP THE BOOKS LONG BEFORE THERE WAS ANY CRIME; SO THAT
THE ENTRY WAS MADE BY REASON OF A COMMAND OR COMPULSION WHICH WAS
DIRECTED TO THE CLASS OF ENTRIES IN GENERAL, AND NOT TO THIS SPECIFIC
ACT.  THE DUTY OR COMPULSION TO DISCLOSE THE BOOKS EXISTED GENERICALLY,
AND PRIOR TO THE SPECIFIC ACT; HENCE THE COMPULSION IS NOT DIRECTED TO
THE CRIMINAL ACT, BUT IS INDEPENDENT OF IT, AND CANNOT BE ATTRIBUTED TO
IT.  ...  THE SAME REASONING APPLIES TO RECORDS REQUIRED BY LAW TO BE
KEPT BY A CITIZEN NOT BEING A PUBLIC OFFICIAL, E.G. A DRUGGIST'S REPORT
OF LIQUOR SALES, OR A PAWNBROKER'S RECORD OF PLEDGES.  THE ONLY
DIFFERENCE HERE IS THAT THE DUTY ARISES NOT FROM THE PERSON'S GENERAL
OFFICIAL STATUS, BUT FROM THE SPECIFIC STATUTE LIMITED TO A PARTICULAR
CLASS OF ACTS.  THE DUTY, OR COMPULSION, IS DIRECTED AS BEFORE, TO THE
GENERIC CLASS OF ACTS, NOT TO THE CRIMINAL ACT, AND IS ANTERIOR TO AND
INDEPENDENT OF THE CRIME; THE CRIME BEING DUE TO THE PARTY'S OWN
ELECTION, MADE SUBSEQUENT TO THE ORIGIN OF THE DUTY." 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE COURT THIS DAY DECIDES THAT WHEN CONGRESS PRESCRIBES FOR A
LIMITED GOVERNMENTAL PURPOSE, ENFORCEABLE BY APPROPRIATE SANCTIONS, THE
FORM IN WHICH SOME RECORDS ARE TO BE KEPT, NOT BY CORPORATIONS BUT BY
PRIVATE INDIVIDUALS, IN WHAT IN EVERYDAY LANGUAGE IS A PRIVATE AND NOT
A GOVERNMENTAL BUSINESS, CONGRESS THEREBY TAKES SUCH RECORDS OUT OF THE
PROTECTION OF THE CONSTITUTION AGAINST SELF-INCRIMINATION AND SEARCH
AND SEIZURE.  DECISION OF CONSTITUTIONAL ISSUES IS AT TIMES
UNAVOIDABLE.  BUT IN THIS CASE THE COURT SO DECIDES WHEN IT IS NOT
NECESSARY.  THE COURT MAKES A DRASTIC BREAK WITH THE PAST IN DISREGARD
OF THE SETTLED PRINCIPLE OF CONSTITUTIONAL ADJUDICATION NOT TO PASS ON
A CONSTITUTIONAL ISSUE - AND HERE A GRAVE ONE INVOLVING BASIC CIVIL
LIBERTIES - IF A CONSTRUCTION THAT DOES NO VIOLENCE TO THE ENGLISH
LANGUAGE PERMITS ITS AVOIDANCE.  THIS STATUTE CLEARLY PERMITS IT. FN1
INSTEAD, THE COURT GOES ON THE ASSUMPTION THAT AN IMMUNITY STATUTE MUST
BE EQUATED WITH THE PRIVILEGE, ALTHOUGH ONLY RECENTLY THE COURT
ATTRIBUTED TO CONGRESS A GRATUITOUS GRANT OF IMMUNITY WHERE CONCEDEDLY
THE CONSTITUTION DID NOT REQUIRE IT, UNDER CIRCUMSTANCES FAR LESS
PERSUASIVE THAN THE STATUTORY LANGUAGE AND THE POLICY UNDERLYING IT.
SEE UNITED STATES V. MONIA, 317 U.S. 424. 

INSTEAD OF RESPECTING "SERIOUS DOUBTS OF CONSTITUTIONALITY" BY GIVING
WHAT IS AT THE LEAST AN ALLOWABLE CONSTRUCTION TO THE PRICE CONTROL ACT
WHICH LEGITIMATELY AVOIDS THESE DOUBTS, THE COURT GOES OUT OF ITS WAY
TO MAKE A FARREACHING PRONOUNCEMENT ON A PROVISION OF THE BILL OF
RIGHTS.  IN AN ALMOST CURSORY FASHION, THE COURT NEEDLESSLY DECIDES
THAT ALL RECORDS WHICH CONGRESS MAY REQUIRE INDIVIDUALS TO KEEP IN THE
CONDUCT OF THEIR AFFAIRS, BECAUSE THEY FALL WITHIN SOME REGULATORY
POWER OF GOVERNMENT, BECOME "PUBLIC RECORDS" AND THEREBY, IPSO FACTO,
FALL OUTSIDE THE PROTECTION OF THE FIFTH AMENDMENT THAT NO PERSON
"SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF." 

IN REACHING OUT FOR A CONSTITUTIONAL ADJUDICATION, ESPECIALLY ONE OF
SUCH MOMENT, WHEN A STATUTORY SOLUTION AVOIDING IT LAY READY AT HAND,
THE COURT HAS DISREGARDED ITS CONSTANTLY PROFESSED PRINCIPLE FOR THE
PROPER APPROACH TOWARD CONGRESSIONAL LEGISLATION.  "WHEN THE VALIDITY
OF AN ACT OF THE CONGRESS IS DRAWN IN QUESTION, AND EVEN 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, QUOTED BY MR. JUSTICE BRANDEIS WITH SUPPORTING
CITATIONS IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288,
348, N. 8.  AND SEE, GENERALLY, FOR DUTY TO AVOID CONSTITUTIONAL
ADJUDICATION, RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 568 ET
SEQ. 

DEPARTURE FROM A BASIC CANON OF CONSTITUTIONAL ADJUDICATION IS
SINGULARLY UNCALLED FOR IN A CASE SUCH AS THIS, WHERE THE STATUTE NOT
ONLY PERMITS A CONSTRUCTION AVOIDING CONSTITUTIONAL CONSIDERATIONS BUT
ON FAIR READING REQUIRES IT. 

IN CONFERRING POWERS OF INVESTIGATION UPON THE ADMINISTRATOR,
CONGRESS DESIGNED TO SECURE THE PROMPTEST DISCLOSURE OF THE BOOKS AND
RECORDS OF THE MILLIONS OF PRIVATE ENTERPRISES SUBJECTED TO THE
REGULATIONS OF THE OFFICE OF PRICE ADMINISTRATION.  IT WOULD CONTRADICT
THAT VITAL AIM TO ATTRIBUTE TO CONGRESS THE CONFLICTING PURPOSE OF
HAMPERING THE FREE FLOW OF KNOWLEDGE CONTAINED IN BUSINESSMEN'S BOOKS
BY INVITING CONTROVERSIES REGARDING STILL UNDETERMINED CLAIMS OF
PRIVILEGE UNDER THE FIFTH AMENDMENT, IN THE ABSENCE OF AN EXPRESSION OF
SUCH PURPOSE MADE MUCH MORE MANIFEST THAN THE BROAD LANGUAGE OF SEC.
202(G) WHICH CONFERRED IMMUNITY FOR THE VERY PURPOSE OF AVOIDING SUCH
CONTROVERSIES. 

IT IS A POOR ANSWER TO SAY THAT IF THE STATUTE WERE EVENTUALLY FOUND
TO CONFER IMMUNITY ONLY TO THE EXTENT REQUIRED FOR SUPPLYING AN
EQUIVALENT FOR THE CONSTITUTIONAL PRIVILEGE, ALL RECORDS WOULD TURN OUT
TO BE UNPRIVILEGED OR WOULD FURNISH IMMUNITY, AND IN EITHER CASE REFUTE
ANY EXCUSE FOR WITHHOLDING THEM.  BUSINESSMEN ARE NOT GUIDED BY SUCH
ABSTRACTIONS.  OBEDIENCE IS NOT FREELY GIVEN TO UNCERTAIN LAWS WHEN
THEY INVOLVE SUCH SENSITIVE MATTERS AS OPENING THE BOOKS OF BUSINESS. 
AND SO, BUSINESSMEN WOULD HAVE HAD A STRONG INCENTIVE TO HOLD BACK
THEIR RECORDS, FORCING THE ADMINISTRATOR TO COMPEL PRODUCTION BY
JUDICIAL PROCESS.  APART FROM THE USE OF OPPORTUNITIES FOR OBSTRUCTIVE
TACTICS THAT CAN HARDLY BE CIRCUMVENTED WHEN NEW LEGISLATION IS TESTED,
DELAYS INEVITABLE TO LITIGATION WOULD DAM UP THE FLOW OF NEEDED
INFORMATION.  CONGRESS SOUGHT TO PRODUCE INFORMATION, NOT LITIGATION. 
SEE UNITED STATES V. MONIA, SUPRA, AT P. 428. 

IN THE MONIA CASE THE COURT CONSIDERED THAT THE STATUTE, "IF
INTERPRETED AS THE GOVERNMENT NOW DESIRES, MAY WELL BE A TRAP FOR THE
WITNESS."  ID. AT 430.  WE NEED NOT SPECULATE HERE AS TO POTENTIAL
ENTRAPMENT.  THE RECORD DISCLOSES THAT THE PETITIONER ASKED, THROUGH
HIS ATTORNEY, WHETHER HE WAS "BEING GRANTED IMMUNITY AS TO ANY AND ALL
MATTERS FOR INFORMATION OBTAINED AS A RESULT OF THE INVESTIGATION AND
EXAMINATION OF THESE RECORDS."  ON BEHALF OF THE PRICE ADMINISTRATOR,
THE REPLY WAS "THE WITNESS IS ENTITLED TO WHATEVER IMMUNITY WHICH FLOWS
AS A MATTER OF LAW FROM THE PRODUCTION OF THESE BOOKS AND RECORDS WHICH
ARE REQUIRED TO BE KEPT PURSUANT TO MPRS (MAXIMUM PRICE REGULATIONS)
271 AND 426."  PETITIONER, HIMSELF, THEREUPON SPECIFICALLY CLAIMED
IMMUNITY UNDER THE STATUTE AS WELL AS UNDER THE CONSTITUTION, AND
STATED THAT UNDER "THESE CONDITIONS" HE PRODUCED THE BOOKS AND RECORDS
THAT THE SUBPOENA SOUGHT.  IT SEEMS CLEAR THAT DISCLOSURE WAS HERE
MADE, RECORDS WERE PRODUCED, ON THE PETITIONER'S JUSTIFIABLE BELIEF -
BASED UPON THE ADVICE OF COUNSEL AND ACQUIESCED IN BY THE PRESIDING
OFFICIAL - THAT HE THEREBY SECURED STATUTORY IMMUNITY AND NOT
CONSTITUTIONAL LITIGATION. 

THERE IS NOTHING TO INDICATE THAT IN 1942 CONGRESS LEGISLATED WITH A
VIEW TO LITIGATING THE SCOPE OF THE LIMITATION OF THE FIFTH AMENDMENT
UPON ITS POWERS.  TO ASCERTAIN WHAT CONGRESS MEANT BY SEC. 202(G) WE
WOULD DO WELL TO BEGIN BY CAREFULLY ATTENDING TO WHAT CONGRESS SAID: 

"NO PERSON SHALL BE EXCUSED FROM COMPLYING WITH ANY REQUIREMENTS
UNDER THIS SECTION BECAUSE OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION,
BUT THE IMMUNITY PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF FEBRUARY
11, 1893(U.S.C., 1934 EDITION, TITLE 49, SEC. 46), SHALL APPLY WITH
RESPECT TO ANY INDIVIDUAL WHO SPECIFICALLY CLAIMS SUCH PRIVILEGE."  56
STAT. 23, 30, 50 U.S.C. APP. SEC. 922(G). 

THE TEXT MUST BE PUT INTO ITS CONTEXT, NOT MERELY BECAUSE ONE
PROVISION OF A STATUTE SHOULD NORMALLY BE READ IN RELATION TO ITS
FELLOWS, BUT PARTICULARLY SO HERE BECAUSE CONGRESS EXPLICITLY LINKED
SUBSECTION (G) OF SEC. 202 TO "ANY REQUIREMENTS UNDER THIS SECTION." 
EFFECTIVE PRICE CONTROL DEPENDED ON UNIMPEDED ACCESS TO RELEVANT
INFORMATION.  TO THAT END, SEC. 202 AUTHORIZED THE ADMINISTRATOR TO
IMPOSE THE "REQUIREMENTS" OF THE SECTION, AND THOSE FROM WHOM THEY WERE
EXACTED WERE UNDER DUTY OF COMPLIANCE BY SUBSECTION (E), WHILE
SUBSECTION (G) BARRED ANY EXCUSE FROM COMPLIANCE BY A CLAIM OF
PRIVILEGE AGAINST SELF-CRIMINATION BY THE ASSURANCE OF IMMUNITY FROM
PROSECUTION.  FN2 

SUBSECTIONS (A), (B), (C) AND (E) IMPOSE THESE FOUR REQUIREMENTS:
PERSONS ENGAGED IN THE VAST RANGE OF BUSINESS SUBJECT TO THE ACT MAY BE
REQUIRED TO (1) MAKE AND KEEP RECORDS, (2) MAKE REPORTS AND (3) PERMIT
THE INSPECTION AND COPYING OF RECORDS AND OTHER DOCUMENTS; SUCH PERSONS
AS WELL AS OTHERS MAY BE REQUIRED TO (4) "APPEAR AND TESTIFY OR TO
APPEAR AND PRODUCE DOCUMENTS, OR BOTH, AT ANY DESIGNATED PLACE."  FN3
AN UNCONSTRAINED READING OF SUBSECTION (G) INSURED PROMPT COMPLIANCE
WITH ALL THESE REQUIREMENTS BY REMOVING ANY EXCUSE BASED ON THE
PRIVILEGE AGAINST SELF-CRIMINATION. 

HERE THE ADMINISTRATOR REQUIRED THE PETITIONER TO "KEEP AND MAKE
AVAILABLE FOR EXAMINATION BY THE OFFICE OF PRICE ADMINISTRATION  ...
RECORDS OF THE SAME KIND AS HE HAS CUSTOMARILY KEPT  ..."  SEC. 14(B),
MPR 426, 8 F.R. 9546, 9549.  THE GOVERNMENT CONTENDS THAT BECAUSE THE
RECORDS OF PETITIONER'S OWN BUSINESS, THOSE THAT HE "CUSTOMARILY KEPT,"
WERE REQUIRED TO BE SO KEPT BY THE ADMINISTRATOR, HE WAS COMPELLED TO
DISCLOSE THEIR CONTENTS EVEN THOUGH THEY MAY HAVE INCRIMINATED HIM, AND
THAT HE WAS AFFORDED NO IMMUNITY UNDER SUBSECTION (G) BECAUSE HE WAS
NOT DISCLOSING WHAT WERE REALLY HIS RECORDS.  SURELY THIS IS TO
DEVITALIZE THE PHRASE "ANY REQUIREMENTS UNDER THIS SECTION" IF NOT TO
RENDER IT MEANINGLESS. 

THE COURT SUPPORTS THIS DEVITALIZATION WITH THE "SHORT ANSWER" THAT
THE IMMUNITY PROVIDED DOES COVER COMPLIANCE WITH ANY OF THESE
REQUIREMENTS AS TO WHICH A PERSON WOULD HAVE BEEN EXCUSED FROM
COMPLIANCE BECAUSE OF HIS CONSTITUTIONAL PRIVILEGE.  THE SHORT REPLY IS
THAT, BEARING IN MIND THE COURT'S CONCLUSIONS AS TO THE SCOPE OF THE
CONSTITUTIONAL PRIVILEGE, ONLY THE FOURTH REQUIREMENT APPEARS TO BE
THUS COVERED.  I DO NOT WISH TO LAY TOO MUCH STRESS ON THE COURT'S
SINGULAR INTERPRETATION OF THE PLURAL "REQUIREMENTS."  PLAINLY, THE
COURT CONSTRUES SEC. 202(G) AS ACCORDING IMMUNITY ONLY TO ORAL
TESTIMONY UNDER OATH AND TO THE PRODUCTION OF ANY DOCUMENTS WHICH THE
ADMINISTRATOR DID NOT HAVE THE FORESIGHT TO REQUIRE TO BE KEPT.  FN4 

THE COURT THUS CONSTRUES THE WORDS "COMPLYING WITH ANY REQUIREMENTS
UNDER THIS SECTION" TO READ "APPEARING AND TESTIFYING OR PRODUCING
DOCUMENTS OTHER THAN THOSE REQUIRED TO BE KEPT PURSUANT TO THIS
WHEN MOST SCRUPULOUSLY PURSUED BY JUDGES MAY NOT WHOLLY ESCAPE SOME
RETROSPECTIVE INFUSION SO THAT THE LINE BETWEEN INTERPRETATION AND
SUBSTITUTION IS SOMETIMES THIN.  BUT THERE IS A DIFFERENCE BETWEEN
READING WHAT IS AND REWRITING IT.  THE COURT HERE DOES NOT ADHERE TO
THE TEXT BUT DELETES AND RESHAPES IT.  SUCH LITERARY FREEWHEELING IS
HARDLY JUSTIFIED BY THE ASSUMPTION THAT CONGRESS WOULD HAVE SO
EXPRESSED IT IF IT HAD GIVEN THE MATTER ATTENTIVE CONSIDERATION.  FN5
IN THE MONIA CASE THE COURT, HAVING CONCLUDED THAT A SIMILAR QUESTION
WAS PRESENT, HAD NO DIFFICULTY IN ANSWERING: "IT IS NOT FOR US TO ADD
TO THE LEGISLATION WHAT CONGRESS PRETERMITTED."  317 U.S. AT 430. 

BOTH LOGIC AND AUTHORITY, APART FROM DUE REGARD FOR OUR LIMITED
FUNCTION, DEMONSTRATE THE WISDOM OF RESPECTING THE TEXT.  THE REACH OF
THE IMMUNITY GIVEN BY SEC. 202(G) IS SPELLED OUT IN THE INCORPORATED
TERMS OF THE COMPULSORY TESTIMONY ACT OF 1893.  THESE PROVIDE THAT
WHERE, AS HERE, DOCUMENTARY EVIDENCE IS EXACTED WHICH MAY TEND TO
INCRIMINATE, HE WHO PRODUCES IT SHALL NOT "BE PROSECUTED OR SUBJECTED
TO ANY PENALTY OR FORFEITURE FOR OR ON ACCOUNT OF ANY TRANSACTION,
MATTER OR THING, CONCERNING WHICH HE MAY TESTIFY, OR PRODUCE EVIDENCE,
DOCUMENTARY OR OTHERWISE  ..."  27 STAT. 443, 49 U.S.C. SEC. 46.  THERE
IS OF COURSE NOTHING IN THIS PROVISION TO SUPPORT THE FINESPUN EXEGESIS
WHICH THE COURT PUTS UPON SEC. 202(G).  THE GOVERNMENT ADMITS AS MUCH
BY ACKNOWLEDGING THAT "THE LITERAL LANGUAGE OF THE COMPULSORY TESTIMONY
ACT POSSIBLY MAY BE SO READ" AS TO SUPPORT THE PRESENT CLAIM OF
IMMUNITY.  BUT IT URGES THAT NOTHING IN THE "LANGUAGE OR LEGISLATIVE
HISTORY" OF SEC. 202(G) REQUIRES A BROADER IMMUNITY THAN AN
ADJUDICATION OF THE SCOPE OF THE CONSTITUTIONAL PRIVILEGE WOULD EXACT. 
THE LANGUAGE YIELDS NO SUPPORT FOR THE GOVERNMENT'S SOPHISTICATED
READING ADOPTED BY THE COURT.  NOR IS THERE ANYTHING IN THE LEGISLATIVE
HISTORY TO TRANSMUTE THE CLEAR IMPORT OF SEC. 202 INTO ESOTERIC
SIGNIFICANCE.  SO FAR AS IT BEARS UPON OUR PROBLEM, THE LEGISLATIVE
HISTORY OF THE ACT MERELY SHOWS THAT SEC. 202 IN ITS ENTIRETY WAS
INCLUDED FOR THE PURPOSE OF "OBTAINING INFORMATION."  FN6  NOTHING IN
THAT HISTORY THROWS ANY LIGHT UPON THE SCOPE OF THE IMMUNITY AFFORDED
BY SUBSECTION (G).  FN7  WHAT IS THERE IN THIS SILENCE OF CONGRESS THAT
SPEAKS SO LOUDLY TO THE COURT?  WHAT ARE THE "INESCAPABLE IMPLICATIONS
OF THE LEGISLATIVE HISTORY" THAT COMPELLED ITS EXTRAORDINARY READING OF
THIS STATUTE?  SURELY, THE FACT THAT THE ADMINISTRATOR'S AUTHORITY TO
REQUIRE THE KEEPING OF RECORDS AND THE MAKING OF REPORTS WAS STRICKEN
FROM THE BILL ON ITS ORIGINAL PASSAGE THROUGH THE HOUSE BUT WAS
EVENTUALLY REINSERTED, MERELY INDICATES THAT CONGRESS FINALLY CONCLUDED
THAT OBTAINING INFORMATION WAS NECESSARY FOR EFFECTIVE PRICE
REGULATION.  FN8 

BUT THE COURT READS INTO SEC. 202(G) THE MEANING THAT "THEY" PUT UPON
THE RECORD-KEEPING PROVISIONS THAT CONGRESS THUS REINSERTED INTO THE
BILL.  "THEY," THE "GENERAL COUNSEL FOR THE OPA," APPEARED AND
TESTIFIED ORALLY AT THE SENATE HEARINGS  FN9  AND, IN URGING
RESTORATION OF THE LICENSING (SEC. 205(F)) AND RECORD-KEEPING
PROVISIONS, SECURED PERMISSION TO FILE VARIOUS BRIEFS AND DOCUMENTS
WITH THE COMMITTEE.  FN10  WHILE THERE IS NOTHING IN THE GENERAL
COUNSEL'S ORAL TESTIMONY THAT SHEDS LIGHT UPON OUR PROBLEM, IT DOES
APPEAR FROM ONE OF THE EXHIBITS FILED BY HIM THAT THE COURT HAS
CORRECTLY DETERMINED THE FAR-REACHING CONSTRUCTION THAT HE HAD GIVEN TO
PROVISIONS WHICH THE HOUSE HAD REJECTED AS "REDUNDANT."  FN11  BUT OUR
TASK IS TO DETERMINE, AS BEST WE CAN, WHAT CONGRESS MEANT - NOT WHAT
COUNSEL SPONSORING LEGISLATION, HOWEVER DISINTERESTEDLY, HOPED CONGRESS
WOULD MEAN.  IF COUNSEL'S VIEWS HAD BEEN ORALLY EXPRESSED TO THE
COMMITTEE,  FN12  THE COMMITTEE MIGHT HAVE GIVEN SOME INDICATION OF ITS
VIEWS.  BUT EVEN IF UPON SUCH DISCLOSURE OF COUNSEL'S VIEWS THE
COMMITTEE HAD REMAINED SILENT, THIS WOULD HARDLY HAVE FURNISHED
SUFFICIENT EVIDENCE TO TRANSMUTE THE LANGUAGE THAT CONGRESS ACTUALLY
EMPLOYED TO EXPRESS ITS MEANING INTO SOME OTHER MEANING. 

TO ATTRIBUTE TO CONGRESS FAMILIARITY WITH, LET ALONE ACCEPTANCE OF, A
CONSTRUCTION SOLELY BY REASON OF THE FACT THAT OUR RESEARCH REVEALS ITS
PRESENCE AMONG THE 60,000 WORD MEMORANDUM WHICH THE CHAIRMAN OF THE
SENATE COMMITTEE PERMITTED THE GENERAL COUNSEL OF THE O.P.A. TO FILE,
IS SURELY TO DEFY THE ACTUALITIES OF THE LEGISLATIVE PROCESS.  IS THERE
THE SLENDEREST GROUND FOR ASSUMING THAT MEMBERS OF THE COMMITTEE READ
COUNSEL'S SUBMISSION NOW RELIED UPON BY THE COURT?  THERE IS NOT A
REFERENCE TO THE CONTENTIONS OF THE O.P.A., WHOLLY APART FROM THAT
BRIEF, IN ANY REPORT OF A COMMITTEE OF EITHER HOUSE OR IN ANY UTTERANCE
ON THE FLOOR OF EITHER HOUSE.  FN13  THE FACT OF THE MATTER IS THAT THE
HOUSE HAD PASSED THE MEASURE BEFORE THE BRIEF, IN TYPE SMALLER THAN
THAT OF THE FOOTNOTES IN THIS OPINION, APPEARED IN A VOLUME OF HEARINGS
COMPRISING 560 PAGES (PART OF THE THREE VOLUMES OF HOUSE AND SENATE
HEARINGS CONTAINING 2,865 PAGES).  THE GOVERNMENT, IN SUBMITTING TO US
THE LEGISLATIVE HISTORY OF THE IMMUNITY PROVISION WITH A VIEW TO
SUSTAINING ITS CLAIMS, DID NOT PRETEND THAT THE CONGRESS WAS EITHER
AWARE OF THE BRIEF OR ACCEPTED THE CONSTRUCTION IT PROFFERED.  THE
SUGGESTION THAT MEMBERS OF A CONGRESSIONAL COMMITTEE HAVE READ, AND
PRESUMPTIVELY AGREED WITH, THE VIEWS FOUND IN A MEMORANDUM ALLOWED TO
BE FILED BY A WITNESS AND PRINTED IN APPENDIX FORM IN THE HEARINGS ON A
BILL, LET ALONE THAT BOTH HOUSES IN VOTING FOR A MEASURE ADOPTED SUCH
VIEWS AS THE GLOSS UPON THE LANGUAGE OF THE ACT WHICH IT WOULD NOT
OTHERWISE BEAR, CAN ONLY BE MADE IN A PICKWICKIAN SENSE.  IT IS HARD TO
BELIEVE THAT EVEN THE MOST CONSCIENTIOUS MEMBERS OF THE CONGRESS WOULD
CARE TO BE CHARGED WITH UNDERWRITING VIEWS MERELY BECAUSE THEY WERE
EXPRESSED IN A MEMORANDUM FILED AS WAS THE O.P.A. BRIEF, ON WHICH SO
MUCH RELIANCE IS PLACED IN THE COURT'S OPINION.  IF THE LANGUAGE OF A
STATUTE IS TO BE SUBJECTED TO THE ESOTERIC INTERPRETATIVE PROCESS THAT
THE SUGGESTED USE OF THE O.P.A. BRIEF IMPLIES, SINCE IT IS THE COMMON
PRACTICE TO ALLOW MEMORANDA TO BE SUBMITTED TO A COMMITTEE OF CONGRESS
BY INTERESTS, PUBLIC AND PRIVATE, OFTEN HIGH-MINDED ENOUGH BUT WITH
THEIR OWN AXES TO GRIND, GREAT ENCOURAGEMENT WILL BE GIVEN TO THE
TEMPTATIONS OF ADMINISTRATIVE OFFICIALS AND OTHERS TO PROVIDE SELF
SERVING "PROOF" OF CONGRESSIONAL CONFIRMATION FOR THEIR PRIVATE VIEWS
THROUGH INCORPORATION OF SUCH MATERIALS.  HITHERTO UNSUSPECTED
OPPORTUNITIES FOR ASSURING DESIRED GLOSSES UPON INNOCENT-LOOKING
LEGISLATION WOULD THUS BE AFFORDED. 

WE AGREE WITH THE GOVERNMENT THAT CONGRESS GAVE THE ADMINISTRATOR
BROAD POWERS FOR OBTAINING INFORMATION AS AN AID TO THE ADMINISTRATION
AND ENFORCEMENT  FN14  OF THE ACT, AND THAT "THE IMMUNITY PROVISION OF
UNHAMPERED BY THE ASSERTION OF THE PRIVILEGE AGAINST SELF
INCRIMINATION."  CERTAINLY.  BUT HOW DOES IT FOLLOW THAT CONGRESS
THEREBY INTENDED SUB SILENTIO TO EFFECTUATE THIS BROAD PURPOSE BY
CONFINING THE IMMUNITY ACCORDED WITHIN THE UNDEFINED CONTROVERSIAL
SCOPE OF THE FIFTH AMENDMENT?  ONE WOULD SUPPOSE THAT CONGRESS SECURED
ITS OBJECT, AS THIS COURT HELD IN THE MONIA CASE, BY GIVING IMMUNITY
AND SO TAKING AWAY CONTENTIONS BASED ON THE CONSTITUTIONAL PRIVILEGE. 

PLAINLY, IT WOULD HAVE SUFFICED TO DISPOSE OF THE PRESENT CONTROVERSY
BY HOLDING THAT CONGRESS GRANTED IMMUNITY BY SEC. 202(G) TO PERSONS WHO
PRODUCED THEIR OWN RECORDS, AS WERE THE RECORDS IN THIS CASE, AND NOT
IN THEIR POSSESSION AS CUSTODIANS OF OTHERS, EVEN THOUGH REQUIRED TO BE
KEPT BY SEC. 202.  TO ADAPT THE LANGUAGE OF MR. JUSTICE HOLMES, WORDS
HAVE BEEN STRAINED BY THE COURT MORE THAN THEY SHOULD BE STRAINED IN
ORDER TO REACH A DOUBTFUL CONSTITUTIONAL QUESTION.  SEE BLODGETT V.
HOLDEN, 275 U.S. 142, 148. 

AND SO WE COME TO THE COURT'S FACILE TREATMENT OF THE GRAVE
CONSTITUTIONAL QUESTION BROUGHT INTO ISSUE BY ITS DISPOSITION OF THE
STATUTORY QUESTION.  IN THE INTEREST OF CLARITY IT IS APPROPRIATE TO
NOTE THAT THE BASIC CONSTITUTIONAL QUESTION CONCERNS THE SCOPE OF THE
FIFTH AMENDMENT, NOT THE VALIDITY OF THE PRICE CONTROL ACT.  THE COURT
HAS CONSTRUED THE IMMUNITY AFFORDED BY SEC. 202(G) OF THE ACT AS CO
EXTENSIVE WITH THE SCOPE OF THE CONSTITUTIONAL PRIVILEGE AGAINST SELF
INCRIMINATION.  THUS CONSTRUED, THE SUBSECTION IS OF COURSE VALID,
SINCE, BY HYPOTHESIS, IT AFFORDS A PROTECTION AS BROAD AS THE FIFTH
AMENDMENT.  COUNSELMAN V. HITCHCOCK, 142 U.S. 547; BROWN V. WALKER, 161
U.S. 591.  THE VICE OF THIS CONSTRUCTION - AND THE IMPORTANCE OF THE
POINT WARRANT'S ITS REITERATION - IS PRECISELY THAT IT NECESSITATES
INTERPRETATION OF THE CONSTITUTION INSTEAD OF AVOIDING IT.  FN15  AND
IF THE PRECEDENTS MEAN ANYTHING THIS COURSE WILL BE FOLLOWED IN EVERY
FUTURE CASE INVOLVING A QUESTION OF STATUTORY IMMUNITY. 

THE COURT HARDLY FINDS A PROBLEM IN DISPOSING OF AN ISSUE FAR
REACHING IN ITS IMPLICATIONS, INVOLVING AS THEY DO A DRASTIC CHANGE IN
THE RELATIONS BETWEEN THE INDIVIDUAL AND THE GOVERNMENT AS HITHERTO
CONCEIVED.  THE COURT TREATS THE PROBLEM AS THOUGH IT WERE ALMOST SELF
EVIDENT THAT WHEN RECORDS ARE REQUIRED TO BE KEPT FOR SOME NEEDS OF
GOVERNMENT, OR TO BE KEPT IN A PARTICULAR FORM, THEY ARE LEGALLY
CONSIDERED GOVERNMENTAL RECORDS AND MAY BE DEMANDED AS INSTRUMENTS OF
SELF-CRIMINATION. 

READY-MADE CATCH-PHRASES MAY CONCEAL BUT DO NOT SOLVE SERIOUS
CONSTITUTIONAL PROBLEMS.  "TOO BROADLY GENERALIZED CONCEPTIONS ARE A
CONSTANT SOURCE OF FALLACY."  HOLMES, J., IN LORENZO V. WIRTH, 170
MASS. 596, 600.  HERE THE FALLACY CAN BE TRACED TO THE REPHRASING OF
OUR PROBLEM INTO TERMS "TO WHICH AS LAWYERS THE JUDGES HAVE BECOME
ACCUSTOMED," IBID.; THEN, BY TREATING THE QUESTION AS THOUGH IT WERE
THE REPHRASED ISSUE, THE EASY ANSWER APPEARS AXIOMATIC AND, BECAUSE
FAMILIAR, AUTHORITATIVE.  SUBTLE QUESTION-BEGGING IS NEVERTHELESS
QUESTION-BEGGING.  THUS: RECORDS REQUIRED TO BE KEPT BY LAW ARE PUBLIC
RECORDS; PUBLIC RECORDS ARE NON-PRIVILEGED; REQUIRED RECORDS ARE NON
PRIVILEGED. 

IF RECORDS MERELY BECAUSE REQUIRED TO BE KEPT BY LAW IPSO FACTO
BECOME PUBLIC RECORDS, WE ARE INDEED LIVING IN GLASS HOUSES.  VIRTUALLY
EVERY MAJOR PUBLIC LAW ENACTMENT - TO SAY NOTHING OF STATE AND LOCAL
LEGISLATION - HAS RECORD-KEEPING PROVISIONS.  IN ADDITION TO RECORD
KEEPING REQUIREMENTS, IS THE NETWORK OF PROVISIONS FOR FILING REPORTS. 
EXHAUSTIVE EFFORTS WOULD BE NEEDED TO TRACK DOWN ALL THE STATUTORY
AUTHORITY, LET ALONE THE ADMINISTRATIVE REGULATIONS, FOR RECORD-KEEPING
AND REPORTING REQUIREMENTS.  UNQUESTIONABLY THEY ARE ENORMOUS IN
VOLUME. 

THE CONGRESS BEGAN ITS HISTORY WITH SUCH LEGISLATION.  CHAPTER I OF
THE LAWS OF THE FIRST SESSION OF THE FIRST CONGRESS - "AN ACT TO
REGULATE THE TIME AND MANNER OF ADMINISTERING CERTAIN OATHS" -
CONTAINED A PROVISION REQUIRING THE MAINTENANCE OF RECORDS BY PERSONS
ADMINISTERING OATHS TO STATE OFFICIALS.  1 STAT. 23, 24.  CHAPTER V -
"AN ACT TO REGULATE THE COLLECTION OF THE DUTIES IMPOSED BY LAW ON THE
TONNAGE OF SHIPS OR VESSELS, AND ON GOODS, WARES AND MERCHANDISE
IMPORTED INTO THE UNITED STATES" - CONTAINED A PROVISION REQUIRING AN
IMPORTER TO PRODUCE THE ORIGINAL INVOICE AND TO MAKE A RETURN
CONCERNING THE CONSIGNED GOODS WITH THE COLLECTOR OF THE PORT OF
ARRIVAL.  1 STAT. 29, 39-40. 

EVERY CONGRESS SINCE 1789 HAS ADDED RECORD-KEEPING AND REPORTING
REQUIREMENTS.  INDEED, IT WAS THE PLETHORA OF SUCH PROVISIONS THAT LED
PRESIDENT ROOSEVELT TO ESTABLISH THE CENTRAL STATISTICAL BOARD IN 1933
AND INDUCED THE ENACTMENT, IN 1942, OF THE FEDERAL REPORTS ACT, 56
STAT. 1078.  SEE, GENERALLY, REPORT OF THE CENTRAL STATISTICAL BOARD,
H. DOC. NO. 27, 76TH CONG., 1ST SESS.; CENTRALIZATION AND COORDINATION
OF FEDERAL STATISTICS - REPORT TO THE COMMITTEE ON APPROPRIATIONS OF
THE HOUSE OF REPRESENTATIVES, DECEMBER 4, 1945, 91 CONG. REC. A5419. 
ON APRIL 25, 1939, THE CENTRAL STATISTICAL BOARD REPORTED THAT, "SINCE
THE END OF 1933, THE BOARD HAS REVIEWED IN ADVANCE OF DISSEMINATION
MORE THAN 4,600 QUESTIONNAIRES AND RELATED FORMS AND PLANS PROPOSED FOR
USE BY FEDERAL AGENCIES.  THE RECORDS FOR THE PAST 2 YEARS SHOW THAT
THE BOARD HAS RECEIVED FORMS FROM 52 FEDERAL AGENCIES AND A NUMBER OF
TEMPORARY INTERDEPARTMENTAL COMMITTEES."  SEE HEARINGS BEFORE THE HOUSE
COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS ON H.R. 5917,
76TH CONG., 1ST SESS., AT P. 32.  THE BOARD, ON THE BASIS OF A
COMPREHENSIVE SURVEY OF THE FINANCIAL AND OTHER REPORTS AND RETURNS
MADE TO 88 FEDERAL AGENCIES BY PRIVATE INDIVIDUALS, FARMS, AND BUSINESS
CONCERNS DURING THE FISCAL YEAR ENDING JUNE 30, 1938, INFORMED CONGRESS
AS FOLLOWS: 

"COUNTING BOTH THE ADMINISTRATIVE AND THE NONADMINISTRATIVE REPORTS
AND RETURNS, THE BOARD'S INQUIRY REVEALED THAT SOME 49,000,000 OF THE
TOTAL DURING THE YEAR WERE COLLECTED IN ACCORDANCE WITH STATUTORY
PROVISIONS SPECIFICALLY AUTHORIZING OR DIRECTING THE COLLECTION OF
REPORTS OF THE TYPES CALLED FOR.  APPROXIMATELY 55,000,000 RETURNS WERE
COLLECTED BY AGENCIES IN CONNECTION WITH THEIR PERFORMANCE OF FUNCTIONS
WHICH WERE SPECIFICALLY AUTHORIZED BY STATUTES, ALTHOUGH THE STATUTES
DID NOT SPECIFY THE REPORTS.  IN SUCH CASES THE INFORMATION SOUGHT WAS
OBVIOUSLY NECESSARY IN CARRYING OUT THE REQUIRED FUNCTIONS.  NEARLY
27,000,000 RETURNS WERE COLLECTED BY FEDERAL AGENCIES ON REPORT FORMS
FOR EACH OF WHICH THE LEGAL AUTHORITY WAS TOO GENERAL OR TOO INDEFINITE
TO PERMIT ITS CLEAR DEFINITION.  THE REMAINING 5,000,000 RETURNS WERE
MADE UNDER A VARIETY OF TYPES OF LEGAL AUTHORITIES INCLUDING
AUTHORIZATIONS IMPLIED IN APPROPRIATIONS MADE SPECIFICALLY TO SUPPORT
THE COLLECTION OF THE REPORTS. 

"SOMEWHAT LESS THAN HALF OF THE RETURNS MADE TO FEDERAL AGENCIES ON
ALL FORMS  ...  WERE MANDATORY BY LAW, IN THE SENSE THAT A PENALTY IS
PRESCRIBED IN CASE OF FAILURE OF THE RESPONDENT TO FILE A REQUIRED
REPORT.  SOME OF THESE MANDATORY RETURNS ARE VERY ELABORATE, AND AS A
CONSEQUENCE OVER 60 PERCENT OF THE TOTAL NUMBER OF ANSWERS ON REPORT
FORMS, OTHER THAN APPLICATIONS, WERE IN ACCORDANCE WITH MANDATORY
REQUIREMENTS."  (H. DOC. NO. 27, SUPRA, AT 11-12.) 

I DO NOT INTEND BY THE ABOVE EXPOSITION TO CAST ANY DOUBT UPON THE
CONSTITUTIONALITY OF THE RECORD-KEEPING OR REPORTING PROVISIONS OF THE
EMERGENCY PRICE CONTROL ACT OR, IN GENERAL, UPON THE VAST NUMBER OF
SIMILAR STATUTORY REQUIREMENTS.  SUCH PROVISIONS SERVE IMPORTANT AND
OFTEN INDISPENSABLE PURPOSES.  BUT TODAY'S DECISION CAN HARDLY FAIL TO
HAMPER THOSE WHO MAKE AND THOSE WHO EXECUTE THE LAWS IN SECURING THE
INFORMATION AND DATA NECESSARY FOR THE MOST EFFECTIVE AND INTELLIGENT
CONDUCT OF GOVERNMENT. 

THE UNDERLYING ASSUMPTION OF THE COURT'S OPINION IS THAT ALL RECORDS
WHICH CONGRESS IN THE EXERCISE OF ITS CONSTITUTIONAL POWERS MAY REQUIRE
INDIVIDUALS TO KEEP IN THE CONDUCT OF THEIR AFFAIRS, BECAUSE THOSE
AFFAIRS ALSO HAVE ASPECTS OF PUBLIC INTEREST, BECOME "PUBLIC" RECORDS
IN THE SENSE THAT THEY FALL OUTSIDE THE CONSTITUTIONAL PROTECTION OF
THE FIFTH AMENDMENT.  THE VALIDITY OF SUCH A DOCTRINE LIES IN THE SCOPE
OF ITS IMPLICATIONS.  THE CLAIM TOUCHES RECORDS THAT MAY BE REQUIRED TO
BE KEPT BY FEDERAL REGULATORY LAWS, REVENUE MEASURES, LABOR AND CENSUS
LEGISLATION IN THE CONDUCT OF BUSINESS WHICH THE UNDERSTANDING AND
FEELING OF OUR PEOPLE STILL TREAT AS PRIVATE ENTERPRISE, EVEN THOUGH
ITS RELATIONS TO THE PUBLIC MAY CALL FOR GOVERNMENTAL REGULATION,
INCLUDING THE DUTY TO KEEP DESIGNATED RECORDS.    IF THE RECORDS IN
CONTROVERSY HERE ARE IN FACT PUBLIC, IN THE SENSE OF PUBLICLY OWNED, OR
GOVERNMENTAL, RECORDS, THEIR NON-PRIVILEGED STATUS FOLLOWS.  SEE DAVIS
V. UNITED STATES, 328 U.S. 582, 594, 602(DISSENTING OPINION).  NO ONE
HAS A PRIVATE RIGHT TO KEEP FOR HIS OWN USE THE CONTENTS OF SUCH
RECORDS.  BUT THE NOTION THAT WHENEVER CONGRESS REQUIRES AN INDIVIDUAL
TO KEEP IN A PARTICULAR FORM HIS OWN BOOKS DEALING WITH HIS OWN AFFAIRS
HIS RECORDS CEASE TO BE HIS WHEN HE IS ACCUSED OF CRIME, IS INDEED
STARTLING.    A PUBLIC RECORD IS A PUBLIC RECORD.  IF THE DOCUMENTS IN
CONTROVERSY ARE "PUBLIC RECORDS" AND AS SUCH NON-PRIVILEGED IN A
PROSECUTION UNDER THE PRICE CONTROL ACT, WHY ARE THEY NOT SIMILARLY
PUBLIC AND NON-PRIVILEGED IN ANY SORT OF LEGAL ACTION?  THERE IS
NOTHING IN EITHER THE ACT OR THE COURT'S CONSTRUCTION OF IT TO QUALIFY
THEIR "PUBLIC" NATURE.  IS THERE ANY MAINTAINABLE REASON WHY THE FIFTH
AMENDMENT SHOULD BE A BARRIER TO THEIR UTILIZATION IN A PROSECUTION
UNDER ANY OTHER LAW IF IT IS NO BARRIER HERE?  THESE RECORDS WERE, AS A
MATTER OF FACT, REQUIRED TO BE KEPT (AND HENCE "PUBLIC") QUITE APART
FROM THIS ACT.  SEE INT. REV. CODE SEC. 54(A) AND TREAS. REG. 111, SEC.
29.54-1.  IF AN EXAMINATION OF THE RECORDS OF AN INDIVIDUAL ENGAGED IN
THE PROCESSING AND SALE OF ESSENTIAL COMMODITIES SHOULD DISCLOSE NON
ESSENTIAL PRODUCTION, FOR EXAMPLE, WHY CANNOT THE RECORDS BE UTILIZED
IN PROSECUTIONS FOR VIOLATIONS OF THE PRIORITIES OR SELECTIVE SERVICE
LEGISLATION?  CF. HARRIS V. UNITED STATES, 331 U.S. 145; BUT CF.
TRUPIANO V. UNITED STATES, 334 U.S. 699. 

MOREOVER, THE GOVERNMENT SHOULD BE ABLE TO ENTER A MAN'S HOME TO
EXAMINE OR SEIZE SUCH PUBLIC RECORDS, WITH OR WITHOUT A SEARCH WARRANT,
AT ANY TIME.  IF AN INDIVIDUAL SHOULD KEEP SUCH RECORDS IN HIS HOME, AS
MILLIONS DO, INSTEAD OF IN HIS PLACE OF BUSINESS, WHY IS NOT HIS HOME
FOR SOME PURPOSES AND IN THE SAME TECHNICAL SENSE, A "PUBLIC" LIBRARY? 
COMPARE DAVIS V. UNITED STATES, 328 U.S. 582, AND HARRIS V. UNITED
STATES, SUPRA, WITH THE "WELL-STATED" OPINION IN UNITED STATES V.
MULLIGAN, 268 F. 893; BUT SEE TRUPIANO V. UNITED STATES, SUPRA.  THIS
IS NOT "A PARADE OF HORRIBLES."  IF A MAN'S RECORDS ARE "PUBLIC" SO AS
TO DEPRIVE HIM OF HIS PRIVILEGE AGAINST SELF-CRIMINATION, THEIR
PUBLICNESS INHERES IN THEM FOR MANY OTHER SITUATIONS. 

INDEED, IF THESE RECORDS ARE PUBLIC, I CAN SEE NO REASON WHY THE
PUBLIC SHOULD NOT HAVE THE SAME RIGHT THAT THE GOVERNMENT HAS TO
PERUSE, IF NOT TO USE, THEM.  FOR, PUBLIC RECORDS ARE "OF A PUBLIC
CHARACTER, KEPT FOR PUBLIC PURPOSES, AND SO IMMEDIATELY BEFORE THE EYES
OF THE COMMUNITY THAT INACCURACIES, IF THEY SHOULD EXIST, COULD HARDLY
ESCAPE EXPOSURE."  EVANSTON V. GUNN, 99 U.S. 660, 666.  IT WOULD SEEM
TO FOLLOW, THEREFORE, THAT THESE PUBLIC RECORDS OF PERSONS ENGAGED IN
WHAT TO THE COMMON UNDERSTANDING IS DEEMED PRIVATE ENTERPRISE SHOULD BE
GENERALLY AVAILABLE FOR EXAMINATION AND NOT BARRED BY THE PLEA THAT THE
ENTERPRISE WOULD THEREBY CEASE TO BE PRIVATE. 

CONGRESS WAS GUILTY, PERHAPS, OF NO MORE THAN CURIOUS INCONSISTENCY
WHEN IT PROVIDED IN SEC. 202(H) OF THE ACT FOR THE CONFIDENTIAL
TREATMENT OF THESE "PUBLIC" RECORDS.  FN16  BUT THE SEEMING
INCONSISTENCY GENERALLY APPLIES TO INFORMATION OBTAINED BY THE
GOVERNMENT PURSUANT TO RECORD-KEEPING AND REPORTING REQUIREMENTS.  SEE
H. DOC. NO. 27, SUPRA, AT PP. 26-28; 56 STAT. 1078, 1079; H.R. REP. NO.
1651, 77TH CONG., 2D SESS., AT PP. 4-5; ("WE (THE BUREAU OF THE CENSUS)
DO NOT EVEN SUPPLY THE DEPARTMENT OF JUSTICE OR ANYBODY ELSE WITH THAT
INFORMATION") HEARINGS BEFORE THE HOUSE COMMITTEE ON EXPENDITURES IN
THE EXECUTIVE DEPARTMENTS ON H.R. 7590, 74TH CONG., 1ST SESS., AT P.
63. 

THE FACT OF THE MATTER, THEN, IS THAT RECORDS REQUIRED TO BE KEPT BY
LAW ARE NOT NECESSARILY PUBLIC IN ANY EXCEPT A WORD-PLAYING SENSE.  TO
DETERMINE WHETHER SUCH RECORDS ARE TRULY PUBLIC RECORDS, I.E., ARE
DENUDED OF THEIR ESSENTIALLY PRIVATE SIGNIFICANCES, WE HAVE TO TAKE
INTO ACCOUNT THEIR CUSTODY, THEIR SUBJECT MATTER, AND THE USE SOUGHT TO
BE MADE OF THEM. 

IT IS THE PART OF WISDOM, PARTICULARLY FOR JUDGES, NOT TO BE
VICTIMIZED BY WORDS.  RECORDS MAY BE PUBLIC RECORDS REGARDLESS OF
WHETHER "A STATUTE REQUIRES THEM TO BE KEPT," IF "THEY ARE KEPT IN THE
DISCHARGE OF A PUBLIC DUTY" EITHER BY A PUBLIC OFFICER OR BY PERSONS
ACTING UNDER HIS DIRECTION.  EVANSTON V. GUNN, SUPRA.  CHAPTER I OF THE
FIRST STATUTE PASSED BY CONGRESS, SUPRA, IS AN EXAMPLE OF AN ACT
REQUIRING A PUBLIC RECORD TO BE KEPT. 

RECORDS DO NOT BECOME PUBLIC RECORDS, HOWEVER, MERELY BECAUSE THEY
ARE REQUIRED TO BE KEPT BY LAW.  PRIVATE RECORDS UNDER SUCH
CIRCUMSTANCES CONTINUE TO BE PRIVATE RECORDS.  CHAPTER V OF THE ACTS OF
THE FIRST CONGRESS, SUPRA, IS AN EXAMPLE OF SUCH A PRIVATE RECORD
REQUIRED TO BE KEPT BY LAW. 

IS THERE, THEN, ANY FOUNDATION FOR THE COURT'S ASSUMPTION THAT ALL
RECORDS REQUIRED TO BE KEPT BY LAW ARE PUBLIC AND NOT PRIVILEGED? 
RELIANCE IS PLACED ON LANGUAGE IN WILSON V. UNITED STATES, 221 U.S.
361.  THE HOLDING IN THAT CASE HAS NO REAL BEARING ON OUR PROBLEM. 
WILSON, THE PRESIDENT OF A CORPORATION, IN ANSWER TO A SUBPOENA TO
PRODUCE, REFUSED TO SURRENDER THE CORPORATION'S BOOKS AND RECORDS ON
THE GROUND THAT THEIR CONTENTS WOULD TEND TO INCRIMINATE HIM.  HE
APPEALED TO THIS COURT FROM A JUDGMENT COMMITTING HIM FOR CONTEMPT. 
THE CASE WAS DISPOSED OF ON THE GROUND THAT THE BOOKS WERE THE
CORPORATION'S AND NOT "HIS PRIVATE OR PERSONAL BOOKS," THAT THE
"PHYSICAL CUSTODY OF INCRIMINATING DOCUMENTS DOES NOT OF ITSELF PROTECT
THE CUSTODIAN AGAINST THEIR COMPULSORY PRODUCTION," AND THAT,
THEREFORE, "THE CUSTODIAN HAS NO PRIVILEGE TO REFUSE PRODUCTION
ALTHOUGH THEIR CONTENTS TEND TO CRIMINATE HIM."  221 U.S. AT 378, 380,
382.  THE COURT CONCLUDED AS FOLLOWS: 

"THE ONLY QUESTION WAS WHETHER AS AGAINST THE CORPORATION THE BOOKS
WERE LAWFULLY REQUIRED IN THE ADMINISTRATION OF JUSTICE.  WHEN THE
APPELLANT BECAME PRESIDENT OF THE CORPORATION AND AS SUCH HELD AND USED
ITS BOOKS FOR THE TRANSACTION OF ITS BUSINESS COMMITTED TO HIS CHARGE,
HE WAS AT ALL TIMES SUBJECT TO ITS DIRECTION, AND THE BOOKS
CONTINUOUSLY REMAINED UNDER ITS CONTROL.  IF ANOTHER TOOK HIS PLACE HIS
CUSTODY WOULD YIELD.  HE COULD ASSERT NO PERSONAL RIGHT TO RETAIN THE
CORPORATE BOOKS AGAINST ANY DEMAND OF GOVERNMENT WHICH THE CORPORATION
WAS BOUND TO RECOGNIZE. 

"WE HAVE NOT OVERLOOKED THE EARLY ENGLISH DECISIONS TO WHICH OUR
ATTENTION HAS BEEN CALLED  ... BUT THESE CANNOT BE DEEMED CONTROLLING. 
THE CORPORATE DUTY, AND THE RELATION OF THE APPELLANT AS THE OFFICER OF
THE CORPORATION TO ITS DISCHARGE, ARE TO BE DETERMINED BY OUR LAWS. 
NOTHING MORE IS DEMANDED THAN THAT THE APPELLANT SHOULD PERFORM THE
OBLIGATIONS PERTAINING TO HIS CUSTODY AND SHOULD PRODUCE THE BOOKS
WHICH HE HOLDS IN HIS OFFICIAL CAPACITY IN ACCORDANCE WITH THE
REQUIREMENTS OF THE SUBPOENA.  NONE OF HIS PERSONAL PAPERS ARE SUBJECT
TO INSPECTION UNDER THE WRIT AND HIS ACTION, IN REFUSING TO PERMIT THE
EXAMINATION OF THE CORPORATE BOOKS DEMANDED, FULLY WARRANTED HIS
COMMITMENT FOR CONTEMPT."  (221 U.S. AT 385-86.) 

THE WILSON CASE WAS CORRECTLY DECIDED.  THE COURT'S HOLDING BOILED
DOWN TO THE PROPOSITION THAT "WHAT'S NOT YOURS IS NOT YOURS."  IT GIVES
NO SANCTION FOR THE BOLD PROPOSITION THAT CONGRESS CAN LEGISLATE
PRIVATE PAPERS IN THE HANDS OF THEIR OWNER, AND NOT IN THE HANDS OF A
CUSTODIAN, OUT OF THE PROTECTION AFFORDED BY THE FIFTH AMENDMENT.  EVEN
IF THERE WERE LANGUAGE IN THE WILSON OPINION IN THAT DIRECTION, AN
OBSERVATION TAKEN FROM ITS CONTEXT WOULD SEEM TO BE SCANT JUSTIFICATION
FOR RESOLVING, AND NEEDLESSLY, "A VERY GRAVE QUESTION OF CONSTITUTIONAL
LAW, INVOLVING THE PERSONAL SECURITY, AND PRIVILEGES AND IMMUNITIES OF
THE CITIZEN."  BOYD V. UNITED STATES, 116 U.S. 616, 618. 

THE CONCLUSION REACHED TODAY THAT ALL RECORDS REQUIRED TO BE KEPT BY
LAW ARE PUBLIC RECORDS CANNOT LEAN ON THE WILSON OPINION.  THIS IS THE
LANGUAGE RELIED UPON BY THE COURT: 

"THE PRINCIPLE (THAT A CUSTODIAN HAS NO PRIVILEGE AS TO THE DOCUMENTS
IN HIS CUSTODY) APPLIES NOT ONLY TO PUBLIC DOCUMENTS IN PUBLIC OFFICES,
BUT ALSO TO RECORDS REQUIRED BY LAW TO BE KEPT IN ORDER THAT THERE MAY
BE SUITABLE INFORMATION OF TRANSACTIONS WHICH ARE THE APPROPRIATE
SUBJECTS OF GOVERNMENTAL REGULATION AND THE ENFORCEMENT OF RESTRICTIONS
VALIDLY ESTABLISHED.  THERE THE PRIVILEGE, WHICH EXISTS AS TO PRIVATE
PAPERS, CANNOT BE MAINTAINED."  (221 U.S. AT 380.) 

BUT MR. JUSTICE HUGHES, THE WRITER OF THE WILSON OPINION, WENT ON TO
NOTE THAT "THERE ARE ABUNDANT ILLUSTRATIONS IN THE DECISIONS" OF THIS
PRINCIPLE THAT A CUSTODIAN HAS NO PRIVILEGE AS TO THE DOCUMENTS IN HIS
CUSTODY JUST AS NO ONE HAS A PRIVILEGE AS TO PUBLIC OR OFFICIAL RECORDS
BECAUSE THEY ARE NOT HIS PRIVATE PAPERS.  HE RESORTED TO THESE
ILLUSTRATIONS CONCERNING CUSTODIANS BECAUSE THE DISSENTING OPINION OF
MR. JUSTICE MCKENNA, WHILE ACCEPTING THE PREMISE THAT PUBLIC RECORDS
WERE NOT PRIVILEGED, QUARRELED WITH THE COURT'S HOLDING AS TO THE
ABSENCE OF A CUSTODIAN'S PRIVILEGE CONCERNING NON-PUBLIC RECORDS, AS
FOLLOWS:  "AS THE PRIVILEGE IS A GUARANTY OF PERSONAL LIBERTY IT SHOULD
NOT BE QUALIFIED BY CONSTRUCTION AND A DISTINCTION BASED ON THE
OWNERSHIP OF THE BOOKS DEMANDED AS EVIDENCE IS IMMATERIAL.  SUCH
DISTINCTION HAS NOT BEEN REGARDED EXCEPT IN THE CASE OF PUBLIC RECORDS,
AS WILL BE EXHIBITED BY A REVIEW OF THE AUTHORITIES."  221 U.S. AT
388. 

THE ILLUSTRATIONS UTILIZED BY MR. JUSTICE HUGHES TO MEET THIS
CHALLENGE RAISED BY THE DISSENT STAND FOR THE PROPOSITIONS THAT (A) A
CUSTODIAN HAS NO PRIVILEGE, AND (B) PUBLIC DOCUMENTS AND RECORDS ARE
NON-PRIVILEGED, BUT NOT AT ALL ON ANY NOTION THAT PRIVATE RECORDS
REQUIRED TO BE KEPT BY LAW ARE "PUBLIC" RECORDS.  BEFORE ANALYZING THE
ELEVEN PRECEDENTS OR ILLUSTRATIONS THUS EMPLOYED, IT IS WORTHY OF NOTE
THAT THE ILLUSTRATIONS WERE DERIVED FROM THE GOVERNMENT'S BRIEF.  IT IS
SIGNIFICANT THAT THAT BRIEF, BY SOLICITOR GENERAL FREDERICK W. LEHMANN,
WELL-KNOWN FOR HIS LEARNING, CONTAINED NO REFERENCE TO THE "REQUIRED
RECORDS" DOCTRINE.  ON THE CONTRARY THE GOVERNMENT CITED THESE CASES TO
SUPPORT ITS ARGUMENT THAT:  "THE IMMUNITY GRANTED BY THE CONSTITUTION
IS PURELY PERSONAL."  FN17 

THESE ARE THE "ILLUSTRATIONS IN THE DECISIONS": 

(1)  BRADSHAW V. MURPHY, 7 C. & P. 612, WHERE "IT WAS HELD THAT A
VESTRY CLERK WHO WAS CALLED AS A WITNESS COULD NOT ON THE GROUND THAT
IT MIGHT INCRIMINATE HIMSELF OBJECT TO THE PRODUCTION OF THE VESTRY
BOOKS KEPT UNDER THE STATUTE, 58 GEORGE III, CHAPTER 69, SEC. 2."  (221
U.S. AT 380.) 

COMMENT. - THIS IS AN INSTANCE WHERE RECORDS WERE REQUIRED TO BE KEPT
BY A PUBLIC OFFICER (FOR SUCH, IN ENGLAND, WAS A PARISH VESTRY CLERK). 
CLEARLY THE CLERK HAD NO PRIVILEGE AS TO SUCH RECORDS SINCE (1) THEY
WERE NOT HIS, HE WAS MERELY THEIR CUSTODIAN, AND (2) HE WAS A PUBLIC
OFFICER. 

(2)  STATE V. FARNUM, 73 S.C. 165, WHERE IT WAS HELD THAT THE
DISPENSER OF THE STATE DISPENSARY HAD TO DISCLOSE TO A LEGISLATIVE
COMMITTEE THE OFFICIAL BOOKS OF THAT STATE INSTITUTION. 

COMMENT. - UNDER SOUTH CAROLINA LAW THE DISPENSER WAS AN OFFICER OF
THE STATE; THE BOOKS WERE TRUE PUBLIC RECORDS; HE WAS THEIR CUSTODIAN. 

(3)  STATE V. DONOVAN, 10 N.D. 203, WHERE IT WAS HELD THAT A REGISTER
OF SALES OF INTOXICATING LIQUOR KEPT BY A DRUGGIST PURSUANT TO A
STATUTE PROVIDING THAT SUCH RECORD "SHALL BE OPEN FOR THE INSPECTION OF
THE PUBLIC AT ALL REASONABLE TIMES DURING BUSINESS HOURS, AND ANY
PERSON SO DESIRING MAY TAKE MEMORANDA OR COPIES THEREOF" WAS A PUBLIC
RECORD. 

COMMENT. - THE STATE COURT CONSTRUED THE STATUTE TO MAKE THE DRUGGIST
A PUBLIC OFFICER AND, AS SUCH, THE CUSTODIAN OF THE REGISTER FOR THE
STATE.  THE COURT QUOTED AUTHORITY TO THE EFFECT THAT THE REGISTER WAS
"THE PROPERTY OF THE STATE, AND NOT OF THE CITIZEN, AND IS IN NO SENSE
A PRIVATE MEMORANDUM."  10 N.D. AT 209.  ARE WE TO INFER FROM THE
COURT'S OPINION IN THIS CASE THAT THE BOOKS AND RECORDS PETITIONER
CUSTOMARILY KEPT WERE NOT HIS PROPERTY BUT THAT OF THE UNITED STATES
GOVERNMENT, AND THAT THEY "SHALL BE OPEN FOR THE INSPECTION OF THE
PUBLIC AT ALL REASONABLE TIMES DURING BUSINESS HOURS, AND ANY PERSON SO
DESIRING MAY TAKE MEMORANDA OR COPIES THEREOF"?  IBID. AND CF. EVANSTON
V. GUNN, SUPRA. 

(4)  STATE V. DAVIS, 108 MO. 666, WHERE IT WAS HELD THAT A DRUGGIST
HAD NO PRIVILEGE AS TO THE PRESCRIPTIONS HE FILLED FOR SALES OF
INTOXICATING LIQUOR. 

COMMENT. - HERE THE PRESCRIPTIONS WERE "REQUIRED TO BE KEPT BY LAW"
BUT THEY CONSTITUTED "PUBLIC" RECORDS IN THE PURE WILSON SENSE.  THE
PRESCRIPTIONS BELONGED TO THE PHYSICIANS OR THEIR PATIENTS, "AND THE
DRUGGIST (WAS) MERELY THEIR CUSTODIAN."  108 MO. AT 671. 

(5)  STATE V. DAVIS, 68 W. VA. 142(PRESCRIPTION-KEEPING CASE
VIRTUALLY IDENTICAL WITH STATE V. DAVIS, 108 MO. 666). 

(6)  PEOPLE V. COOMBS, 158 N.Y. 532, WHERE IT WAS HELD THAT A CORONER
HAD NO PRIVILEGE AS TO OFFICIAL INQUEST RECORDS, REQUIRED TO BE FILED
WITH THE COUNTY CLERK, OVER HIS CONTENTION THAT THEY WERE PRIVATE
RECORDS BECAUSE THEY WERE FALSE AND HAD BEEN FOUND IN HIS OWN OFFICE. 

COMMENT. - "THE PAPERS WERE IN A PUBLIC OFFICE, IN THE CUSTODY OF A
CLERK WHO WAS PAID BY THE CITY.  ON THEIR FACE THEY WERE PUBLIC RECORDS
AND INTENDED TO BE USED AS SUCH."  158 N.Y. AT 539. 

(7)  L. & N.R. CO. V. COMMONWEALTH, 51 S.W. (KY.)  167, WHERE IT WAS
HELD THAT A RAILROAD CORPORATION HAD NO PRIVILEGE AS TO A TARIFF
SHEET. 

COMMENT. - THE TARIFF SHEET WAS "REQUIRED BY LAW TO BE PUBLICLY
POSTED AT THE STATION, AND WAS IN FACT SO POSTED."  51 S.W. AT 167. 
PETITIONER IS NOT A RAILROAD CORPORATION AND HIS RECORDS WERE NOT
"PUBLICLY POSTED."    (8)  STATE V. SMITH, 74 IOWA 580, WHERE IT WAS
HELD THAT A PHARMACIST HAD NO PRIVILEGE AS TO THE MONTHLY REPORTS OF
LIQUOR SALES THAT HE HAD MADE TO THE COUNTY AUDITOR PURSUANT TO A
STATUTORY REPORTING REQUIREMENT. 

COMMENT. - THE REPORTS IN THE AUDITOR'S OFFICE WERE "PUBLIC RECORDS
OF THE OFFICE, WHICH ARE OPEN TO THE INSPECTION OF ALL, AND MAY BE USED
IN EVIDENCE IN ALL CASES BETWEEN ALL PARTIES, WHEN COMPETENT, TO
ESTABLISH ANY FACT IN ISSUE FOR JUDICIAL DETERMINATION."  74 IOWA AT
583-84.  PETITIONER'S RECORDS WERE IN HIS POSSESSION AND WERE NOT OPEN
FOR PUBLIC INSPECTION. 

(9)  STATE V. CUMMINS, 76 IOWA 133(SAME AS STATE V. SMITH, SUPRA). 
(10)  PEOPLE V. HENWOOD, 123 MICH. 317(LIQUOR SALES REPORTING
REQUIREMENT HELD VALID). 

(11)  LANGDON V. PEOPLE, 133 ILL. 382, HELD THAT SEIZURE PURSUANT TO
SEARCH WARRANT OF OFFICIAL STATE DOCUMENTS UNLAWFULLY IN APPELLANT'S
POSSESSION CONSTITUTED REASONABLE SEARCH - "THEY WERE NOT PRIVATE
PAPERS."  133 ILL. AT 398. 

IN SUMMARY OF THE AUTHORITIES CITED AS ILLUSTRATIONS OF THE PRINCIPLE
RECOGNIZED AND APPLIED BY THE COURT IN THE WILSON CASE, THEN, IT SHOULD
BE OBVIOUS THAT THEY NEITHER STAND FOR THE PROPOSITION THAT THE FACT
THAT PRIVATE RECORDS ARE REQUIRED TO BE KEPT BY STATUTE MAKES THEM
PUBLIC RECORDS BY OPERATION OF LAW, NOR DID MR. JUSTICE HUGHES
MISCONSTRUE THEM IN REACHING THE DECISION IN THE WILSON CASE. 

WERE THERE ANY DOUBT AS TO THE POINT OF THE ILLUSTRATIONS IN THE
WILSON CASE, SURELY WE COULD SAFELY PERMIT THAT DOUBT TO BE RESOLVED BY
THE WILSON OPINION ITSELF.  AFTER REVIEWING THE ILLUSTRATIVE CASES, MR.
JUSTICE HUGHES OBSERVED: 

"THE FUNDAMENTAL GROUND OF DECISION IN THIS CLASS OF CASES, IS THAT
WHERE, BY VIRTUE OF THEIR CHARACTER AND THE RULES OF LAW APPLICABLE TO
THEM, THE BOOKS AND PAPERS ARE HELD SUBJECT TO EXAMINATION BY THE
DEMANDING AUTHORITY, THE CUSTODIAN HAS NO PRIVILEGE TO REFUSE
PRODUCTION ALTHOUGH THEIR CONTENTS TEND TO CRIMINATE HIM.  IN ASSUMING
THEIR CUSTODY HE HAS ACCEPTED THE INCIDENT OBLIGATION TO PERMIT
INSPECTION."  (221 U.S. 381-82.) 

EVIDENTLY THE DICTUM IN THE WILSON CASE AND THE AUTHORITIES THEREIN
CITED NEED TO BE BOLSTERED FOR THE USE TO WHICH THEY ARE PUT IN THIS
CASE.  WE ARE TOLD THAT "OTHER STATE SUPREME COURT DECISIONS,
SUBSEQUENT TO THE WILSON CASE, SIMILARLY TREAT AS NON-PRIVILEGED,
RECORDS REQUIRED BY STATUTE TO BE KEPT."  THESE ARE THE FIVE INSTANCES
CITED: 

(1)  PALADINI V. SUPERIOR COURT, 178 CAL. 369, WHERE IT WAS HELD THAT
THE STATUTORY PROCEDURE WHEREBY THE STATE MARKET DIRECTOR COULD COMPEL
THE PRODUCTION OF THE SALES RECORDS OF LICENSED FISH DEALERS WAS
VALID. 

COMMENT. - THE COURT DID NOT HOLD THAT THE RECORDS WERE "NON
PRIVILEGED," BUT DISPOSED OF THE CONTENTION THAT THE STATUTE VIOLATED
THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION ON THE GROUND
THAT "THE PROCEEDING BEFORE THE STATE MARKET DIRECTOR IS NOT CRIMINAL
IN ITS NATURE, AND THE ORDER COMPELLING THE PETITIONERS TO PRODUCE
THEIR BOOKS BEFORE THE STATE MARKET DIRECTOR WAS NOT IN VIOLATION OF
THE CONSTITUTIONAL PROVISION WHICH PROHIBITS A COURT OR OFFICER FROM
REQUIRING A DEFENDANT IN A CRIMINAL CASE TO FURNISH EVIDENCE AGAINST
HIMSELF."  178 CAL. AT 373.  THE COURT DID DISPOSE OF THE CONTENTION
THAT THE STATUTE VIOLATED THE FOURTH AMENDMENT OF THE UNITED STATES
CONSTITUTION ON THE GROUND THAT THE RECORDS WERE NOT PRIVATE.  BUT THE
RECORDS HERE WERE PUBLIC RECORDS BECAUSE, SINCE IT WAS CONCEDED THAT
THE FISH BELONGED TO THE STATE, "THEY CONTAIN A RECORD OF THE PURCHASE
AND SALE OF THE PROPERTY OF THE STATE, BY THOSE HAVING A QUALIFIED OR
CONDITIONAL INTEREST THEREIN."  IBID.  THERE IS NO SUGGESTION IN THIS
CASE THAT PETITIONER'S RECORDS WERE PUBLIC RECORDS BECAUSE HIS FRUIT
AND VEGETABLES WERE THE PROPERTY OF THE UNITED STATES GOVERNMENT. 

(2)  ST. LOUIS V. BASKOVITZ, 273 MO. 543, WHERE A MUNICIPAL ORDINANCE
REQUIRING JUNK DEALERS TO KEEP BOOKS OF REGISTRY RECORDING THEIR
PURCHASES AND PROVIDING THAT THE BOOKS BE OPEN FOR INSPECTION AND
EXAMINATION BY THE POLICE OR ANY CITIZEN WAS UPHELD AGAINST THE
CONTENTION THAT IT VIOLATED THE STATE CONSTITUTIONAL PROVISION AGAINST
UNREASONABLE SEARCHES AND SEIZURES FOR PRIVATE PURPOSES. 

COMMENT. - THE CASE WAS DISPOSED OF BY THE COURT'S INTERPRETATION OF
THE WORDS "ANY CITIZEN" AS BEING LIMITED IN MEANING TO "ONE WHOSE
PROPERTY HAS BEEN STOLEN."  273 MO. AT 576.  THE RECORDS HERE WERE
"REQUIRED TO BE KEPT BY STATUTE," IT IS TRUE, BUT THE COURT HAD NO
OCCASION TO, AND DID NOT, GO INTO THE QUESTION AS TO WHETHER THE
RECORDS WERE "NON-PRIVILEGED." 

(3)  STATE V. LEGORA, 162 TENN. 122, WHERE A STATUTE REQUIRING JUNK
DEALERS TO KEEP A RECORD OF THEIR PURCHASES WAS UPHELD. 

COMMENT. - A RECORD WHICH "SHALL AT ALL TIMES BE OPEN TO THE
INSPECTION OF  ...  ANY PERSON WHO MAY DESIRE TO SEE THE SAME," 162
TENN. AT 124, IS, OF COURSE, A "PUBLIC" RECORD.  EVANSTON V. GUNN,
SUPRA; CF. ST. LOUIS V. BASKOVITZ, SUPRA. 

(4)  STATE V. STEIN, 215 MINN. 308, WHERE A STATUTE REQUIRING
LICENSED DEALERS IN RAW FURS TO KEEP RECORDS OF THEIR SALES AND
PURCHASES WAS UPHELD. 

COMMENT. - THE RECORDS HERE WERE PUBLIC RECORDS FOR THE SAME REASON
THAT THE RECORDS INVOLVED IN THE PALADINI CASE WERE PUBLIC RECORDS -
"THE STATE IS THE OWNER, IN TRUST FOR THE PEOPLE, OF ALL WILD
ANIMALS."  215 MINN. AT 311. 

(5)  FINANCIAL AID CORPORATION V. WALLACE, 216 IND. 114, WHERE A
STATUTE REQUIRING LICENSED SMALL LOAN CONCERNS TO KEEP RECORDS AND
PROVIDING FOR THEIR INSPECTION BY THE STATE DEPARTMENT OF FINANCIAL
INSTITUTIONS WAS UPHELD. 

COMMENT. - THE COURT HAD NO OCCASION TO, AND DID NOT, GO INTO THE
QUESTION AS TO WHETHER THE RECORDS WERE EITHER "PUBLIC" OR "NON
PRIVILEGED." 

IT APPEARS TO ME, THEREFORE, THAT THE AUTHORITIES GIVE NO SUPPORT TO
THE BROAD PROPOSITION THAT BECAUSE RECORDS ARE REQUIRED TO BE KEPT BY
LAW THEY ARE PUBLIC RECORDS AND, HENCE, NON-PRIVILEGED.  PRIVATE
RECORDS DO NOT THUS BECOME "PUBLIC" IN ANY CRITICAL OR LEGALLY
SIGNIFICANT SENSE; THEY ARE MERELY THE RECORDS OF AN INDUSTRY OR
BUSINESS REGULATED BY LAW.  NOR DOES THE FACT THAT THE GOVERNMENT
EITHER MAY MAKE, OR HAS MADE, A LICENSE A PREREQUISITE FOR THE DOING OF
BUSINESS MAKE THEM PUBLIC IN ANY ORDINARY USE OF THE TERM.  WHILE
CONGRESS MAY IN TIME OF WAR, OR PERHAPS IN CIRCUMSTANCES OF ECONOMIC
CRISIS, PROVIDE FOR THE LICENSING OF EVERY INDIVIDUAL BUSINESS, SURELY
SUCH LICENSING REQUIREMENTS DO NOT REMOVE THE RECORDS OF A MAN'S
PRIVATE BUSINESS FROM THE PROTECTION AFFORDED BY THE FIFTH AMENDMENT. 
EVEN THE EXERCISE OF THE WAR POWER IS SUBJECT TO THE FIFTH AMENDMENT. 
SEE, E.G., HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146, 155
56.  JUST AS THE LICENSING OF PRIVATE MOTOR VEHICLES DOES NOT MAKE THEM
PUBLIC CARRIERS, THE LICENSING OF A MAN'S PRIVATE BUSINESS, FOR TAX OR
OTHER PURPOSES, DOES NOT UNDER OUR SYSTEM, AT LEAST SO I HAD SUPPOSED,
MAKE HIM A PUBLIC OFFICER. 

DIFFERENT CONSIDERATIONS CONTROL WHERE THE BUSINESS OF AN ENTERPRISE
IS, AS IT WERE, THE PUBLIC'S.  CLEARLY THE RECORDS OF A BUSINESS
LICENSED TO SELL STATE-OWNED PROPERTY ARE PUBLIC RECORDS.  CF., E.G.,
PALADINI V. SUPERIOR COURT, SUPRA; STATE V. STEIN, SUPRA.  AND THE
RECORDS OF A PUBLIC UTILITY, APART FROM THE CONSIDERATIONS RELEVANT TO
CORPORATE ENTERPRISE, MAY SIMILARLY BE TREATED AS PUBLIC RECORDS.  CF.,
E.G., L. & N.R. CO. V. COMMONWEALTH, SUPRA; FINANCIAL AID CORPORATION
V. WALLACE, SUPRA.  THIS HAS BEEN EXTENDED TO THE RECORDS OF
"OCCUPATIONS WHICH ARE MALUM IN SE, OR SO CLOSELY ALLIED THERETO, AS TO
ENDANGER THE PUBLIC HEALTH, MORALS OR SAFETY."  ST. LOUIS V. BASKOVITZ,
SUPRA, AT P. 554; CF., E.G., STATE V. LEGORA, SUPRA; STATE V. DONOVAN,
SUPRA; STATE V. SMITH, SUPRA. 

HERE THE SUBJECT MATTER OF PETITIONER'S BUSINESS WAS NOT SUCH AS TO
RENDER IT PUBLIC.  SURELY, THERE IS NOTHING INHERENTLY DANGEROUS,
IMMORAL, OR UNHEALTHY ABOUT THE SALE OF FRUITS AND VEGETABLES.  NOR WAS
THERE ANYTHING IN HIS POSSESSION OR CONTROL OF THE RECORDS TO CAST A
CLOUD ON HIS TITLE TO THEM.  THEY WERE THE RECORDS THAT HE CUSTOMARILY
KEPT.  I FIND NOTHING IN THE ACT, OR IN THE COURT'S CONSTRUCTION OF THE
ACT, THAT MADE HIM A PUBLIC OFFICER.  HE WAS BEING ADMINISTERED, NOT
ADMINISTERING.  NOR WAS HE IN ANY LEGITIMATE SENSE OF THE WORD A
"CUSTODIAN" OF THE RECORDS.  I SEE NOTHING FRIVOLOUS IN A DISTINCTION
BETWEEN THE RECORDS OF AN "UNINCORPORATED ENTREPRENEUR" AND THOSE OF A
CORPORATION.  ON THE CONTRARY, THAT DISTINCTION WAS DECISIVE OF THE
WILSON HOLDING: 

"BUT THE CORPORATE FORM OF BUSINESS ACTIVITY, WITH ITS CHARTERED
PRIVILEGES, RAISES A DISTINCTION WHEN THE AUTHORITY OF GOVERNMENT
DEMANDS THE EXAMINATION OF BOOKS."  (221 U.S. AT 382.) 

AND THE COURT QUOTED AT LENGTH FROM HALE V. HENKEL, 201 U.S. 43, 74
75: 

"'...  WE ARE OF THE OPINION THAT THERE IS A CLEAR DISTINCTION IN
THIS PARTICULAR BETWEEN AN INDIVIDUAL AND A CORPORATION, AND THAT THE
LATTER HAS NO RIGHT TO REFUSE TO SUBMIT ITS BOOKS AND PAPERS FOR AN
EXAMINATION AT THE SUIT OF THE STATE.  THE INDIVIDUAL MAY STAND UPON
HIS CONSTITUTIONAL RIGHTS AS A CITIZEN.  HE IS ENTITLED TO CARRY ON HIS
PRIVATE BUSINESS IN HIS OWN WAY.  HIS POWER TO CONTRACT IS UNLIMITED. 
HE OWES NO DUTY TO THE STATE OR TO HIS NEIGHBORS TO DIVULGE HIS
BUSINESS, OR TO OPEN HIS DOORS TO AN INVESTIGATION, SO FAR AS IT MAY
TEND TO CRIMINATE HIM.  ... 

"'UPON THE OTHER HAND, THE CORPORATION IS A CREATURE OF THE STATE. 
IT IS PRESUMED TO BE INCORPORATED FOR THE BENEFIT OF THE PUBLIC.  IT
RECEIVES CERTAIN SPECIAL PRIVILEGES AND FRANCHISES ...'"  (221 U.S. AT
383.)  THE DISTINCTION BETWEEN CORPORATE AND INDIVIDUAL ENTERPRISE IS
ONE OF THE DEEPEST IN OUR CONSTITUTIONAL LAW, AS IT IS FOR THE SHAPERS
OF PUBLIC POLICY. 

THE PHRASE "REQUIRED TO BE KEPT BY LAW," THEN, IS NOT A MAGIC PHRASE
BY WHICH THE LEGISLATURE OPENS THE DOOR TO INROADS UPON THE FIFTH
AMENDMENT.  STATUTORY PROVISIONS SIMILAR TO SEC. 202(B) OF THIS ACT,
REQUIRING THE KEEPING OF RECORDS AND MAKING THEM AVAILABLE FOR OFFICIAL
INSPECTION, ARE CONSTITUTIONAL MEANS FOR EFFECTIVE ADMINISTRATION AND
ENFORCEMENT.  FN18  IT FOLLOWS THAT THOSE CHARGED WITH THE
RESPONSIBILITY FOR SUCH ADMINISTRATION AND ENFORCEMENT MAY COMPEL THE
DISCLOSURE OF SUCH RECORDS IN CONFORMITY WITH THE FOURTH AMENDMENT. 
SEE BOYD V. UNITED STATES, SUPRA, AT PP. 623-24.  BUT IT DOES NOT
FOLLOW THAT SUCH DISCLOSURES ARE BEYOND THE SCOPE OF THE PROTECTION
AFFORDED BY THE FIFTH AMENDMENT.  FOR THE COMPULSORY DISCLOSURE OF A
MAN'S "PRIVATE BOOKS AND PAPERS, TO CONVICT HIM OF CRIME, OR TO FORFEIT
HIS PROPERTY, IS CONTRARY TO THE PRINCIPLES OF A FREE GOVERNMENT.  IT
IS ABHORRENT TO THE INSTINCTS OF AN ENGLISHMAN; IT IS ABHORRENT TO THE
INSTINCTS OF AN AMERICAN.  IT MAY SUIT THE PURPOSES OF DESPOTIC POWER;
BUT IT CANNOT ABIDE THE PURE ATMOSPHERE OF POLITICAL LIBERTY AND
PERSONAL FREEDOM."  ID. AT 632. 

THE COURT IN THE BOYD CASE WAS FULLY COGNIZANT OF THE SENSE AND
SIGNIFICANCE OF THE PHRASE "BOOKS REQUIRED BY LAW TO BE KEPT FOR THEIR
INSPECTION."  ID. AT 623-24.  SURELY THE RESULT OF THAT DECISION, IF
NOT THE OPINION ITSELF, SPEAKS LOUDLY AGAINST THE CLAIM THAT MERELY BY
VIRTUE OF A RECORD-KEEPING PROVISION THE CONSTITUTIONAL PRIVILEGE
AGAINST SELF-INCRIMINATION BECOMES INOPERATIVE.  THE DOCUMENT IN
CONTROVERSY IN THE BOYD CASE WAS HISTORICALLY, AND AS A MATTER OF FACT,
MUCH MORE OF A "REQUIRED RECORD" THAN THE BOOKS AND RECORDS THE
PETITIONER HERE "CUSTOMARILY KEPT."  IF THE COURT'S POSITION TODAY IS
CORRECT THE BOYD CASE WAS ERRONEOUSLY DECIDED.  FN19 

IN DISREGARDING THE SPIRIT OF THAT DECISION, THE COURT'S OPINION
DISREGARDS THE CLARION CALL OF THE BOYD CASE:  OBSTA PRINCIPIIS.  FOR,
WHILE IT IS EASY ENOUGH TO SEE THIS AS A PETTY CASE AND WHILE SOME MAY
NOT CONSIDER THE RULE OF LAW TODAY ANNOUNCED TO BE FRAUGHT WITH
UNEXPLORED SIGNIFICANCE FOR THE GREAT PROBLEM OF RECONCILING INDIVIDUAL
FREEDOM WITH GOVERNMENTAL STRENGTH, THE BOYD OPINION ADMONISHES AGAINST
BEING SO LULLED.  "IT MAY BE THAT IT IS THE OBNOXIOUS THING IN ITS
MILDEST AND LEAST REPULSIVE FORM; BUT ILLEGITIMATE AND UNCONSTITUTIONAL
PRACTICES GET THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT
APPROACHES AND SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE.  THIS
CAN ONLY BE OBVIATED BY ADHERING TO THE RULE THAT CONSTITUTIONAL
PROVISIONS FOR THE SECURITY OF PERSON AND PROPERTY SHOULD BE LIBERALLY
CONSTRUED.  A CLOSE AND LITERAL CONSTRUCTION DEPRIVES THEM OF HALF
THEIR EFFICACY, AND LEADS TO GRADUAL DEPRECIATION OF THE RIGHT, AS IF
IT CONSISTED MORE IN SOUND THAN IN SUBSTANCE."  ID. AT 635. 

VIOLATORS SHOULD BE DETECTED, TRIED, CONVICTED, AND PUNISHED - BUT
NOT AT THE COST OF NEEDLESSLY BRINGING INTO QUESTION CONSTITUTIONAL
RIGHTS AND PRIVILEGES.  WHILE LAW ENFORCEMENT OFFICERS MAY FIND THEIR
DUTIES MORE ARDUOUS AND CRIME DETECTION MORE DIFFICULT AS SOCIETY
BECOMES MORE COMPLICATED, THE CONSTITUTIONAL SAFEGUARDS OF THE
INDIVIDUAL WERE NOT DESIGNED FOR SHORT-CUTS IN THE ADMINISTRATION OF
CRIMINAL JUSTICE. 

AND SO I CONCLUDE THAT THE COURT HAS MISCONSTRUED THE FIFTH AMENDMENT
BY NARROWING THE RANGE AND SCOPE OF THE PROTECTION IT WAS INTENDED TO
AFFORD.  THE PRIVILEGE AGAINST SELF-INCRIMINATION IS, AFTER ALL, "AS
BROAD AS THE MISCHIEF AGAINST WHICH IT SEEKS TO GUARD."  COUNSELMAN V.
HITCHCOCK, SUPRA, AT P. 562.  IF CONGRESS BY THE EASY DEVICE OF
REQUIRING A MAN TO KEEP THE PRIVATE PAPERS THAT HE HAS CUSTOMARILY KEPT
CAN RENDER SUCH PAPERS "PUBLIC" AND NON-PRIVILEGED, THERE IS LITTLE
LEFT TO EITHER THE RIGHT OF PRIVACY OR THE CONSTITUTIONAL PRIVILEGE. 

EVEN IF THERE WERE AUTHORITY FOR THE TEMERARIOUS PRONOUNCEMENT IN
TODAY'S OPINION, I WOULD INSIST THAT SUCH AUTHORITY WAS ILL-FOUNDED AND
OUGHT NOT TO BE FOLLOWED.  THERE IS NO SUCH AUTHORITY.  THE COURT'S
OPINION CAN GAIN NO STRENGTH BEYOND ITSELF.  THE PERSUASIVENESS OF ITS
OPINION IS NOT ENHANCED BY THE ENDEAVOR OF THE MAJORITY OF THE COURT,
SO NEEDLESSLY REACHING OUT FOR A CONSTITUTIONAL ISSUE, TO REST ITS
OMINOUS INROADS UPON THE FIFTH AMENDMENT NOT ON THE WISDOM OF THEIR
DETERMINATION BUT ON BLIND RELIANCE UPON NON-PERSUASIVE AUTHORITY. 
FN1  "A DECISION COULD BE MADE EITHER WAY WITHOUT CONTRADICTING THE
EXPRESS WORDS OF THE ACT, OR, POSSIBLY, EVEN ANY VERY CLEAR
IMPLICATION."  HOLMES, C.J., IN HOOPER V. BRADFORD, 178 MASS. 95, 97. 

FN2  THE ENTIRE SEC. 202 OF THE EMERGENCY PRICE CONTROL ACT OF 1942,
AS AMENDED, IS AS FOLLOWS: 

"(A)  THE ADMINISTRATOR IS AUTHORIZED TO MAKE SUCH STUDIES AND
INVESTIGATIONS, TO CONDUCT SUCH HEARINGS, AND TO OBTAIN SUCH
INFORMATION AS HE DEEMS NECESSARY OR PROPER TO ASSIST HIM IN
PRESCRIBING ANY REGULATION OR ORDER UNDER THIS ACT, OR IN THE
ADMINISTRATION AND ENFORCEMENT OF THIS ACT AND REGULATIONS, ORDERS, AND
PRICE SCHEDULES THEREUNDER. 

"(B)  THE ADMINISTRATOR IS FURTHER AUTHORIZED, BY REGULATION OR
ORDER, TO REQUIRE ANY PERSON WHO IS ENGAGED IN THE BUSINESS OF DEALING
WITH ANY COMMODITY, OR WHO RENTS OR OFFERS FOR RENT OR ACTS AS BROKER
OR AGENT FOR THE RENTAL OF ANY HOUSING ACCOMMODATIONS, TO FURNISH ANY
SUCH INFORMATION UNDER OATH OR AFFIRMATION OR OTHERWISE, TO MAKE AND
KEEP RECORDS AND OTHER DOCUMENTS, AND TO MAKE REPORTS, AND HE MAY
REQUIRE ANY SUCH PERSON TO PERMIT THE INSPECTION AND COPYING OF RECORDS
AND OTHER DOCUMENTS, THE INSPECTION OF INVENTORIES, AND THE INSPECTION
OF DEFENSE-AREA HOUSING ACCOMMODATIONS.  THE ADMINISTRATOR MAY
ADMINISTER OATHS AND AFFIRMATIONS AND MAY, WHENEVER NECESSARY, BY
SUBPENA REQUIRE ANY SUCH PERSON TO APPEAR AND TESTIFY OR TO APPEAR AND
PRODUCE DOCUMENTS, OR BOTH, AT ANY DESIGNATED PLACE. 

"(C)  FOR THE PURPOSE OF OBTAINING ANY INFORMATION UNDER SUBSECTION
(A), THE ADMINISTRATOR MAY BY SUBPENA REQUIRE ANY OTHER PERSON TO
APPEAR AND TESTIFY OR TO APPEAR AND PRODUCE DOCUMENTS, OR BOTH, AT ANY
DESIGNATED PLACE. 

"(D)  THE PRODUCTION OF A PERSON'S DOCUMENTS AT ANY PLACE OTHER THAN
HIS PLACE OF BUSINESS SHALL NOT BE REQUIRED UNDER THIS SECTION IN ANY
CASE IN WHICH, PRIOR TO THE RETURN DATE SPECIFIED IN THE SUBPENA ISSUED
WITH RESPECT THERETO, SUCH PERSON EITHER HAS FURNISHED THE
ADMINISTRATOR WITH A COPY OF SUCH DOCUMENTS (CERTIFIED BY SUCH PERSON
UNDER OATH TO BE A TRUE AND CORRECT COPY), OR HAS ENTERED INTO A
STIPULATION WITH THE ADMINISTRATOR AS TO THE INFORMATION CONTAINED IN
SUCH DOCUMENTS. 

"(E)  IN CASE OF CONTUMACY BY, OR REFUSAL TO OBEY A SUBPENA SERVED
UPON, ANY PERSON REFERRED TO IN SUBSECTION (C), THE DISTRICT COURT FOR
ANY DISTRICT IN WHICH SUCH PERSON IS FOUND OR RESIDES OR TRANSACTS
BUSINESS, UPON APPLICATION BY THE ADMINISTRATOR, SHALL HAVE
JURISDICTION TO ISSUE AN ORDER REQUIRING SUCH PERSON TO APPEAR AND GIVE
TESTIMONY OR TO APPEAR AND PRODUCE DOCUMENTS, OR BOTH; AND ANY FAILURE
TO OBEY SUCH ORDER OF THE COURT MAY BE PUNISHED BY SUCH COURT AS A
CONTEMPT THEREOF.  THE PROVISIONS OF THIS SUBSECTION SHALL ALSO APPLY
TO ANY PERSON REFERRED TO IN SUBSECTION (B), AND SHALL BE IN ADDITION
TO THE PROVISIONS OF SECTION 4(A). 

"(F)  WITNESSES SUBPENAED UNDER THIS SECTION SHALL BE PAID THE SAME
FEES AND MILEAGE AS ARE PAID WITNESSES IN THE DISTRICT COURTS OF THE
UNITED STATES. 

"(G)  NO PERSON SHALL BE EXCUSED FROM COMPLYING WITH ANY REQUIREMENTS
UNDER THIS SECTION BECAUSE OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION,
BUT THE IMMUNITY PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF FEBRUARY
11, 1893(U.S.C., 1934 EDITION, TITLE 49, SEC. 46), SHALL APPLY WITH
RESPECT TO ANY INDIVIDUAL WHO SPECIFICALLY CLAIMS SUCH PRIVILEGE. 

"(H)  THE ADMINISTRATOR SHALL NOT PUBLISH OR DISCLOSE ANY INFORMATION
OBTAINED UNDER THIS ACT THAT SUCH ADMINISTRATOR DEEMS CONFIDENTIAL OR
WITH REFERENCE TO WHICH A REQUEST FOR CONFIDENTIAL TREATMENT IS MADE BY
THE PERSON FURNISHING SUCH INFORMATION, UNLESS HE DETERMINES THAT THE
WITHHOLDING THEREOF IS CONTRARY TO THE INTEREST OF THE NATIONAL DEFENSE
AND SECURITY. 

"(I)  ANY PERSON SUBPENAED UNDER THIS SECTION SHALL HAVE THE RIGHT TO
MAKE A RECORD OF HIS TESTIMONY AND TO BE REPRESENTED BY COUNSEL."  56
STAT. 23, 30, AS AMENDED BY SEC. 105 OF THE STABILIZATION EXTENSION ACT
OF 1944, 58 STAT. 632, 637, 50 U.S.C. APP. SEC. 922. 

FN3  TECHNICALLY THERE IS AN ADDITIONAL OR FIFTH REQUIREMENT - TO
FURNISH INFORMATION "UNDER OATH OR AFFIRMATION OR OTHERWISE" - BUT THIS
REQUIREMENT IS REALLY COVERED BY THE OTHER FOUR. 

FN4  THE ADMINISTRATOR REQUIRED THIS PETITIONER TO KEEP "RECORDS OF
THE SAME KIND AS HE HAS CUSTOMARILY KEPT."  SEC. 14(B) OF MAXIMUM PRICE
REGULATION NO. 426, 8 FED. REG. 9546.  AS A PRACTICAL MATTER,
THEREFORE, THE STATUTE AS CONSTRUED BY THE COURT PROVIDES IMMUNITY ONLY
FOR COMPELLED ORAL TESTIMONY. 

FN5  BUT CF. CARROLL, THROUGH THE LOOKING GLASS, C. 6: 

"'THE QUESTION IS,' SAID ALICE, 'WHETHER YOU CAN MAKE WORDS MEAN SO
MANY DIFFERENT THINGS.' 

"'THE QUESTION IS,' SAID HUMPTY DUMPTY, 'WHICH IS TO BE MASTER -
THAT'S ALL.'" 

FN6  SEE H.R. 5479, 77TH CONG., 1ST SESS., AS INTRODUCED ON AUGUST 1,
1941, IN THE HOUSE OF REPRESENTATIVES AND REFERRED TO THE COMMITTEE ON
BANKING AND CURRENCY, AT P. 8; H.R. 5990, 77TH CONG., 1ST SESS., AS
REPORTED OUT BY THE COMMITTEE ON NOVEMBER 7, 1941, AT P. 12(AT THE
CONCLUSION OF THE HEARINGS ON H.R. 5479, THE COMMITTEE DIRECTED ITS
CHAIRMAN TO INTRODUCE THIS NEW BILL REPRESENTING THE OLD BILL AS
AMENDED BY THE COMMITTEE IN EXECUTIVE SESSION; SEE H.R. REP. 1409, 77TH
CONG., 1ST SESS., P. 3); H.R. REP. 1409, SUPRA, AT P. 9; 87 CONG. REC.
9073, 9231; ID. AT 9232(WOLCOTT AMENDMENT TO STRIKE OUT ALL OF SEC. 202
BECAUSE PREVIOUS AMENDMENT OF THE BILL RENDERED THIS SECTION FOR
"OBTAINING INFORMATION" REDUNDANT); ID. AT 9233(WOLCOTT AMENDMENT
ADOPTED BY THE HOUSE); S. REP. NO. 931, 77TH CONG., 2D SESS., P.
21(H.R. 5990, AS PASSED BY THE HOUSE, AMENDED BY REINSTATING SEC. 202
FOR THE PURPOSE OF "OBTAINING INFORMATION"); AND SEE FINALLY THE
CONFERENCE REPORT ACCOMPANYING H.R. 5990, H.R. REP. 1658, 77TH CONG.,
2D SESS., PP. 25-26(AGREEING TO SEC. 202). 

FN7  INDEED, THE ONLY REFERENCE TO THE IMMUNITY PROVISION IN THE
LEGISLATIVE DOCUMENTS, SEE FOOTNOTE 6 SUPRA, CONSISTS MERELY OF
PRACTICALLY VERBATIM REPETITIONS OF THE PROVISION. 

FN8  THE HOUSE ORIGINALLY STRUCK OUT THE ENTIRE SEC. 202 BECAUSE A
PREVIOUSLY ADOPTED AMENDMENT HAD MADE THE SECTION "REDUNDANT."  87
CONG. REC. 9232-9233.  THE PREVIOUSLY ADOPTED AMENDMENT HAD INSERTED A
SEC. 203(A) WHICH SIMPLY PROVIDED THAT: 

"THE ADMINISTRATOR AND THE BOARD OF ADMINISTRATIVE REVIEW OR ANY
MEMBER OR COMMISSIONER THEREOF MAY ADMINISTER OATHS AND AFFIRMATIONS,
MAY REQUIRE BY SUBPENA OR OTHERWISE THE ATTENDANCE AND TESTIMONY OF
WITNESSES AND THE PRODUCTION OF DOCUMENTS AT ANY DESIGNATED PLACE.  NO
PERSON SHALL BE EXCUSED FROM COMPLYING WITH ANY REQUIREMENTS UNDER THIS
IMMUNITY PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF FEBRUARY 11,
1893(U.S.C., 1934 ED., TITLE 49, SEC. 46), SHALL APPLY WITH RESPECT TO
ANY INDIVIDUAL WHO SPECIFICALLY CLAIMS SUCH PRIVILEGE."  ID. AT 9226. 

AS PASSED BY THE HOUSE, THEN, THE BILL WOULD HAVE AUTHORIZED THE
ADMINISTRATOR TO REQUIRE THE PRODUCTION OF THE RECORDS HERE IN ISSUE,
BUT THERE WOULD HAVE BEEN NO QUESTION OF THEIR BEING "PUBLIC" RECORDS,
AND PETITIONER WOULD CLEARLY HAVE BEEN ACCORDED THE IMMUNITY HEREIN
CLAIMED.  THE HOUSE MANAGERS YIELDED AS TO THE RECORD-KEEPING
REQUIREMENTS AND THE REINSTATEMENT OF THE ENTIRE SEC. 202, BUT THERE IS
NO MENTION IN THEIR REPORT OF THE PROVISIONS OF SUBSECTION (G), LET
ALONE ANY INDICATION THAT THERE WAS ANY DIFFERENCE INTENDED IN THE
SCOPE OF THE IMMUNITY ACCORDED BY THE TWO BILLS. 

FN9  HEARINGS BEFORE THE SENATE COMMITTEE ON BANKING AND CURRENCY ON
H.R. 5990, 77TH CONG., 1ST SESS., AT PP. 68-71, 112-23, 144-60, 174-81,
550-53. 

FN10  ID. AT 154, 175, 180-81. 

FN11  SEE FOOTNOTE 8 SUPRA. 

FN12  EVERY REFERENCE IN THE COURT'S OPINION TO P. 181 ET SEQ. OF THE
HEARINGS IS TO THE GENERAL COUNSEL'S BRIEF - AN EXHIBIT - NOT TO ORAL
TESTIMONY. 

FN13  I DO NOT DISPUTE EITHER (A) THAT THE HEARINGS (INCLUDING THE
BRIEF AS AN EXHIBIT THERETO) WERE PRINTED AND AVAILABLE BEFORE THE
SENATE PASSED THE BILL, OR (B) THAT THERE IS A POSSIBILITY THAT A
CURIOUS SENATOR (BUT NOT A REPRESENTATIVE) MIGHT HAVE READ ALL THIS
FINE PRINT.  I MEAN MERELY TO SUGGEST (A) THAT IN VIEW OF THE TIMES,
THE TYPOGRAPHY, AND THE LENGTH OF THE TEXT, THE CHANCES ARE REMOTE, AND
(B) THAT IN VIEW OF THE IMPORTANCE OF THE ISSUE IT IS INDEED A
HAZARDOUS MATTER TO ATTRIBUTE POSITIVE CONGRESSIONAL MEANING TO SUCH AN
IMPROBABLE SOURCE.  WHILE IT MAY BE PRESUMED THAT THE SENATE
SUBCOMMITTEE REVISED THE HOUSE BILL "IN THE LIGHT OF THE HEARINGS," ALL
THAT MEANS IS THAT THEY HEARD WHAT THEY HEARD - IT DOES NOT MEAN THAT
THEY READ EVERYTHING THEY MIGHT HAVE READ.  IT WOULD BE ENOUGH TO
ATTRIBUTE TO A DILIGENT COMMITTEEMAN FAMILIARITY WITH TRANSCRIBED ORAL
TESTIMONY OF SUCH VOLUME AS THAT ON THIS BILL.  BUT CF. ID. AT 15:
"SENATOR BARKLEY.  MR. CHAIRMAN, NONE OF US HAVE READ THE HEARINGS IN
THE HOUSE - OR MAYBE A FEW OF US HAVE"; ID. AT 26:  "SENATOR TAFT.  I
HAVE NOT READ THE HOUSE HEARINGS, I AM ASHAMED TO SAY." 

ON JANUARY 26, 1942, REPRESENTATIVE GIFFORD STATED ON THE FLOOR OF
THE HOUSE: 

"BUT THIS LICENSING BUSINESS, 'COMPULSORY LOYALTY WILL CRACK SOONER
THAN THE GENUINE KIND.'  DURING THE LAST WORLD WAR IT WAS LOYALTY BY
COOPERATION.  THEY HAD LICENSING, YES, ON FOOD PRODUCTS AND ON FUEL,
BUT LITTLE OF ANYTHING ELSE.  IF THE LICENSEE WAS PUNISHED, IT WAS ONLY
A SLAP ON THE WRIST.  IF HE WOULD CONTRIBUTE TO THE RED CROSS HE WAS
FORGIVEN.  I HAVE A COMPILED BRIEF ON THE LICENSING METHODS THAT I
COULD GO INTO AT LENGTH.  AN HOUR WOULD BE NECESSARY TO PROPERLY
DISCUSS IT AND TO RECITE THE EXPERIENCES OF OURS AND OTHER NATIONS. 
CANADA NOW HAS IT. LET ME READ TO YOU THEIR STATEMENT OF POLICY.  THESE
RESTRICTIONS ARE NOT DESIGNED TO CURTAIL BUSINESS OPERATIONS IN ANY
WAY.  BUT BY PLACING EVERY PERSON WHO IN ANY WAY HANDLES THE
COMMODITIES NAMED IN THE ORDER UNDER LICENSE, THE BOARD WILL HAVE THE
MACHINERY WITH WHICH TO MAKE SPEEDY CHECKS ON AVAILABLE STOCKS AND TO
POLICE MORE EFFECTIVELY ANY PRICE-FIXING ORDER WHICH MAY BE
INSTITUTED."  (88 CONG. REC. 672.) 

TO TRACE KNOWLEDGE OF THE O.P.A. BRIEF TO A CONGRESSIONAL READER BY
ASSUMING FROM THIS STATEMENT THAT REPRESENTATIVE GIFFORD, WHO OPPOSED
THE ADOPTION OF THESE PROVISIONS OF THE BILL, WAS SUCH A READER, AND
FROM THAT TO ATTRIBUTE TO CONGRESS KNOWLEDGE OF WHAT WAS IN AN EXHIBIT
TO A COMMITTEE HEARING, IS SO ATTENUATED A PROCESS OF INFERENTIAL
REASONING AS TO DISCREDIT THE WHOLE PARAPHERNALIA OF LEGISLATIVE
HISTORY.  THAT THE CONGRESS ITSELF DOES NOT CARE TO BE CHARGED WITH
KNOWLEDGE OF ALL THE EXTRANEOUS MATTER FOR WHICH EITHER HOUSE HAS
GRANTED LEAVE TO PRINT IN THE RECORD IS APPARENT FROM THE RULES OF THE
JOINT COMMITTEE ON PRINTING PROVIDING THAT "THE SAME SHALL BE PUBLISHED
IN THE APPENDIX" AND "IN 6 1/2-POINT TYPE."  SEE CONG. REC., DEC. 11,
1947, P. A5039.  THERE IS, MOREOVER, LITTLE BASIS FOR CONCLUDING THAT
THE GIFFORD "COMPILED BRIEF" WAS THE O.P.A. BRIEF - DIFFERENT BRIEFS
FREQUENTLY QUOTE FROM THE SAME AUTHORITY.  ON THE CONTRARY, THE O.P.A.
BRIEF HARDLY PRESENTED THE ARGUMENT THAT "COMPULSORY LOYALTY WILL CRACK
SOONER THAN THE GENUINE KIND," NOR DID IT CONTAIN MATERIAL
DEMONSTRATING EITHER THE NARROW SCOPE OR THE WEAKNESSES OF WORLD WAR I
LICENSING. 

FN14  PUTTING THE WORD "ENFORCEMENT" IN SEC. 202(A) IN ITALICS DOES
LITTLE TO SOLVE OUR PROBLEM OF STATUTORY CONSTRUCTION - FOR ENFORCEMENT
MEANS ENFORCEMENT.  THE WORD IS HARDLY ENERVATED BY THE EXTENSION OF
IMMUNITY TO THE PERSON COMPELLED TO DISCLOSE HIS BOOKS AND RECORDS. 
THE INFORMATION THUS OBTAINED MIGHT WELL ASSIST THE ADMINISTRATOR IN
THE ENFORCEMENT OF THE ACT AGAINST THE SUPPLIERS OF, BUYERS FROM, OR
COMPETITORS OF THE OWNER OF THE RECORDS.  AS TO HIS SUPPLIERS, THE
RECORDS WOULD OF COURSE DISCLOSE COMPLIANCE WITH MAXIMUM PRICE
REGULATIONS; AS TO THE BUYERS, MANY REGULATIONS ESTABLISHED MAXIMUM
PRICE ON A COST-PLUS BASIS AND THE INFORMATION OBTAINED WOULD BE
ESSENTIAL TO PROOF OF VIOLATION; AS TO THE COMPETITORS, MANY
REGULATIONS ESTABLISHED MAXIMUM PRICE FOR NEW SELLERS ON THE BASIS OF
THEIR CLOSEST COMPETITORS, AND HERE AGAIN THE INFORMATION OBTAINED
MIGHT WELL BE ESSENTIAL TO THE ENFORCEMENT OF THE ACT. 

FN15  NEEDLESS TO SAY, THE CONSTITUTIONALITY OF THE FIFTH AMENDMENT
IS NOT RAISED. 

FN16  FOR THE TEXT OF SEC. 202(H) SEE NOTE 2 SUPRA.  H.R. 5479 AS
ORIGINALLY INTRODUCED (SEE NOTE 6 SUPRA) WOULD HAVE LEFT IT TO THE
ADMINISTRATOR TO DETERMINE WHETHER THE INFORMATION OBTAINED SHOULD BE
DEEMED CONFIDENTIAL.  THE BILL WAS CHANGED BY THE HOUSE COMMITTEE TO
ITS FINAL FORM WHEREBY THE PERSON FURNISHING THE INFORMATION COULD
REQUEST CONFIDENTIAL TREATMENT SO AS TO GIVE SUCH PERSONS "FURTHER
PROTECTION."  H.R. REP. 1409, 77TH CONG., 1ST SESS., P. 9.  "FURTHER"
MEANT IN ADDITION TO THE STATUTORY IMMUNITY AFFORDED BY SEC. 202(G). 
IBID. 

FN17  SEE SUMMARY OF ARGUMENT FOR THE UNITED STATES, 221 U.S. AT
366.  THE LEHMANN BRIEF DESERVES READING. 

FN18  SEE NOTE 14 SUPRA. 

FN19  THE BOYDS HAD CONTRACTED TO SUPPLY PLATE GLASS TO THE
GOVERNMENT ON A DUTY-FREE PRICE BASIS.  THEY CONTENDED THAT THEY HAD
FULFILLED THIS CONTRACT OUT OF THEIR STOCK ON HAND.  THEY HAD
PREVIOUSLY SECURED A FREE ENTRY OF 29 CASES OF PLATE GLASS AND CLAIMED
THAT THIS SHIPMENT REPLACED IN PART THE GLASS THAT THEY HAD FURNISHED
THE GOVERNMENT; THE GOVERNMENT ASSERTED THAT THAT SHIPMENT CONTAINED
MORE THAN THE AMOUNT OF THE GLASS FURNISHED.  AFTER THE BOYDS HAD
SECURED A FREE PERMIT AND ENTRY OF A SECOND SHIPMENT OF 35 CASES OF
PLATE GLASS, BUT BEFORE DELIVERY TO THEM, THE GOODS WERE SEIZED AND THE
FREE PERMIT WAS REVOKED.  IN THE PROCEEDINGS FOR THE FORFEITURE OF THE
35 CASES, THE GOVERNMENT, PURSUANT TO THE STATUTORY PROCEDURE HELD
UNCONSTITUTIONAL BY THE COURT, SOUGHT AND SECURED PRODUCTION FROM THE
BOYDS OF THE INVOICE COVERING THE FIRST SHIPMENT OF THE 29 CASES.  THIS
INVOICE WAS A "RECORD REQUIRED TO BE KEPT BY STATUTE."  THE ACT OF JULY
31, 1789, REQUIRED THE IMPORTER TO MAKE AN OFFICIAL ENTRY WITH THE
COLLECTOR AT THE PORT OF ARRIVAL AND THERE PRODUCE THE ORIGINAL INVOICE
TO THE COLLECTOR.  1 STAT. 29, 39-40; AS AMENDED BY THE ACT OF AUGUST
4, 1790, 1 STAT. 145, 161-62; AS AMENDED BY THE ACT OF MARCH 2, 1799, 1
STAT. 627, 655-56(INVOICE MUST BE SIGNED BY COLLECTOR; AND SEE FORM OF
OATH REQUIRED TO ACCOMPANY INVOICE); AS AMENDED BY THE ACT OF APRIL 20,
1818, 3 STAT. 433, 434, 436; AS AMENDED BY THE ACT OF MARCH 1, 1823, 3
STAT. 729-30(NO ENTRY WITHOUT INVOICE UNLESS IMPORTER GIVES BOND TO
SECURE PRODUCTION OF INVOICE WITHIN STATED PERIOD), 737(INVOICE,
CERTIFIED WITH COLLECTOR'S OFFICIAL SEAL, CONCLUSIVE EVIDENCE OF VALUE
OF IMPORTED GOODS IN ANY COURT OF THE UNITED STATES); AS AMENDED BY THE
ACT OF AUGUST 30, 1842, 5 STAT. 548, 564-65(COLLECTOR AUTHORIZED TO
EXAMINE ANY IMPORTER AND TO REQUIRE PRODUCTION OF INVOICES); AS AMENDED
BY THE ACT OF MARCH 3, 1863, 12 STAT. 737-38(REQUIRED INVOICES TO BE IN
TRIPLICATE AND INDORSED PRIOR TO SHIPMENT TO THIS COUNTRY BY A CONSULAR
OFFICER WHO "SHALL DELIVER TO THE PERSON PRODUCING THE SAME ONE OF SAID
TRIPLICATES, TO BE USED IN MAKING ENTRY OF SAID GOODS, WARES, OR
MERCHANDISE; SHALL FILE ANOTHER IN HIS OFFICE, TO BE THERE CAREFULLY
PRESERVED; AND SHALL, AS SOON AS PRACTICABLE, TRANSMIT THE REMAINING
ONE TO THE COLLECTOR OF THE PORT OF THE UNITED STATES AT WHICH IT SHALL
BE DECLARED TO BE THE INTENTION TO MAKE ENTRY OF SAID GOODS, WARES, OR
MERCHANDISE"), 740(PENALTY FOR WILFUL DESTRUCTION OR CONCEALMENT OF
INVOICES) AND (DISTRICT JUDGE WHERE IT APPEARS TO HIS SATISFACTION THAT
FRAUD ON REVENUE HAS BEEN COMMITTED OR ATTEMPTED SHALL AUTHORIZE
COLLECTOR TO SEIZE INVOICES); AS AMENDED BY THE ACT OF JUNE 30, 1864,
13 STAT. 202, 217-18(INVOICE MUST BE MADE OUT IN THE WEIGHTS AND
MEASURES OF THE COUNTRY FROM WHICH IMPORTATION MADE); AS AMENDED BY THE
ACT OF JULY 18, 1866, 14 STAT. 178, 187(SEIZURE OF INVOICES); AS
AMENDED BY THE ACT OF MARCH 2, 1867, 14 STAT. 546, 547(SEIZURE OF
INVOICES); AS AMENDED BY THE ACT OF JUNE 22, 1874, 18 STAT. 186,
187(SEC.  5 - SEIZURE OF INVOICES - HELD UNCONSTITUTIONAL IN BOYD
CASE).  FOR ADMINISTRATIVE REQUIREMENTS AS TO FORM, CONTENTS, FILING
AND KEEPING OF INVOICES, IN EFFECT AT TIME OF ENTRY INVOLVED IN BOYD
CASE, SEE GENERAL REGULATIONS UNDER THE CUSTOMS AND NAVIGATION LAWS
(1884) ARTS. 314-34; SEE ALSO ELMES, CUSTOMS (1887) C. VII. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE MURPHY AGREES,
DISSENTING. 

THE PROTECTION AGAINST COMPULSORY SELF-INCRIMINATION, GUARANTEED BY
THE FIFTH AMENDMENT, IS NULLIFIED TO WHATEVER EXTENT THIS COURT HOLDS
THAT CONGRESS MAY REQUIRE A CITIZEN TO KEEP AN ACCOUNT OF HIS DEEDS AND
MISDEEDS AND TURN OVER OR EXHIBIT THE RECORD ON DEMAND OF GOVERNMENT
INSPECTORS, WHO THEN CAN USE IT TO CONVICT HIM.  TODAY'S DECISION
INTRODUCES A PRINCIPLE OF CONSIDERABLE MOMENT.  OF COURSE, IT STRIPS OF
PROTECTION ONLY BUSINESS MEN AND THEIR RECORDS; BUT WE CANNOT TOO OFTEN
REMIND OURSELVES OF THE TENDENCY OF SUCH A PRINCIPLE, ONCE APPROVED, TO
EXPAND ITSELF IN PRACTICE "TO THE LIMITS OF ITS LOGIC."  THAT IT HAS
ALREADY EXPANDED TO COVER A VAST AREA IS APPARENT FROM THE COURT'S
CITATION OF TWENTY-SIX FEDERAL STATUTES THAT PRESENT PARALLELS TO THE
SITUATION HERE UNDER REVIEW.  IT WOULD, NO DOUBT, SIMPLIFY ENFORCEMENT
OF ALL CRIMINAL LAWS IF EACH CITIZEN WERE REQUIRED TO KEEP A DIARY THAT
WOULD SHOW WHERE HE WAS AT ALL TIMES, WITH WHOM HE WAS, AND WHAT HE WAS
UP TO.  THE DECISION OF TODAY, APPLYING THIS RULE NOT MERELY TO RECORDS
SPECIALLY REQUIRED UNDER THE ACT BUT ALSO TO RECORDS "CUSTOMARILY
KEPT," INVITES AND FACILITATES THAT EVENTUALITY. 

THE PRACTICE APPROVED TODAY OBVIOUSLY NARROWS THE PROTECTIONS OF THE
FIFTH AMENDMENT.  WE SHOULD NOT ATTRIBUTE TO CONGRESS SUCH A PURPOSE OR
INTENT UNLESS IT USED LANGUAGE SO MANDATORY AND UNMISTAKABLE THAT IT
LEFT NO ALTERNATIVE, AND CERTAINLY SHOULD NOT BASE THAT INFERENCE ON
"LEGISLATIVE HISTORY" OF SUCH DUBIOUS MEANING AS EXISTS IN THIS CASE. 
CONGRESS, IF WE GIVE ITS LANGUAGE PLAIN AND USUAL MEANING, HAS GUARDED
THE IMMUNITY SO SCRUPULOUSLY AS TO RAISE NO CONSTITUTIONAL QUESTION. 
BUT IF CONGRESS HAD OVERSTEPPED, WE SHOULD HAVE NO HESITATION IN
HOLDING THAT THE GOVERNMENT MUST LOSE SOME CASES RATHER THAN THE PEOPLE
LOSE THEIR IMMUNITIES FROM COMPULSORY SELF-INCRIMINATION.  HOWEVER, IN
THIS CASE, THE PLAIN LANGUAGE OF CONGRESS REQUIRES NO SUCH CHOICE.  IT
DOES REQUIRE, IN MY VIEW, THAT THIS JUDGMENT BE REVERSED. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

WITH RESERVATIONS TO BE NOTED, I AGREE WITH THE VIEWS EXPRESSED BY
MR. JUSTICE JACKSON, AND WITH MR. JUSTICE FRANKFURTER'S CONCLUSIONS
CONCERNING THE EFFECT OF THE IMMUNITY PROVISION, SEC. 202(G) OF THE
EMERGENCY PRICE CONTROL ACT.  FN1 

WITH THEM I CANNOT ACCEPT THE COURT'S CONSTRUCTION OF THAT SECTION
WHICH REDUCES THE STATUTORY IMMUNITY TO THE SCOPE OF THAT AFFORDED BY
THE FIFTH AMENDMENT'S PROHIBITION AGAINST COMPULSORY SELF
INCRIMINATION.  THIS COURT HAS NOT PREVIOUSLY SO DECIDED.  FN2  NOR, IN
MY JUDGMENT, CAN THE PRESENT DECISION BE RECONCILED WITH THE LANGUAGE
OF THE STATUTE OR ITS PURPOSE OBVIOUS ON ITS FACE. 

THAT WORDING COMPELS TESTIMONY AND THE PRODUCTION OF EVIDENCE,
DOCUMENTARY OR OTHERWISE, REGARDLESS OF ANY CLAIM OF CONSTITUTIONAL
IMMUNITY, WHETHER VALID OR NOT.  FN3  BUT TO AVOID THE CONSTITUTIONAL
PROHIBITION AND, IT WOULD SEEM CLEARLY, ALSO ANY DELAY IN SECURING THE
INFORMATION OR EVIDENCE REQUIRED, THE ACT PROMISES IMMUNITY "FOR OR ON
ACCOUNT OF ANY TRANSACTION, MATTER OR THING, CONCERNING WHICH HE MAY
TESTIFY, OR PRODUCE EVIDENCE  ...  IN OBEDIENCE TO" THE SUBPOENA.  FN4 

THE STATUTE THUS CONSISTS OF A COMMAND AND A PROMISE.  IN EXPLICIT
TERMS THE PROMISE IS MADE COEXTENSIVE WITH THE COMMAND.  IT EXPRESSLY
PRECLUDES PROSECUTION, FORFEITURE OR PENALTY "FOR OR ON ACCOUNT OF ANY
TRANSACTION, MATTER OR THING" CONCERNING WHICH EVIDENCE IS PRODUCED IN
COMPLIANCE WITH THE SUBPOENA.  FN5  COMPELLING TESTIMONY AND GIVING
IMMUNITY "FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER OR THING,
CONCERNING WHICH HE MAY TESTIFY" ARE VERY DIFFERENT FROM COMPELLING IT
AND PROMISING THAT, WHEN GIVEN, THE PERSON COMPLYING "SHALL HAVE ONLY
THE IMMUNITY GIVEN BY THE FIFTH AMENDMENT AND NO MORE."  TO CONSTRICT
THE STATUTE'S WORDING SO DRASTICALLY IS NOT SIMPLY TO INTERPRET, IT IS
TO REWRITE THE CONGRESSIONAL LANGUAGE AND, IN MY VIEW, ITS PURPOSE.  IF
CONGRESS HAD INTENDED ONLY SO NARROW A PROTECTION, IT COULD EASILY HAVE
SAID SO WITHOUT ADDING WORDS TO LEAD WITNESSES AND OTHERS TO BELIEVE
MORE WAS GIVEN. 

IT MAY BE, HOWEVER, NOTWITHSTANDING THE BREADTH OF THE PROMISSORY
TERMS, THAT THE STATUTORY IMMUNITY WAS NOT INTENDED TO BE SO BROAD AS
TO COVER SITUATIONS WHERE THE CLAIM OF CONSTITUTIONAL RIGHT PRECLUDED
IS ONLY FRIVOLOUS OR INSUBSTANTIAL OR NOT PUT FORWARD IN GOOD FAITH. 
FN6  AND IF, FOR SUCH A REASON, THE LITERAL BREADTH OF THE WORDING MAY
BE SOMEWHAT CUT DOWN, RESTRICTING THE STATUTE'S IMMUNITY BY EXCLUDING
THOSE SITUATIONS WOULD NEITHER RESTRICT THE EFFECT OF THE STATUTORY
WORDS TO THAT OF THE AMENDMENT ITSELF NOR GIVE THEM THE MISLEADING
CONNOTATION OF THE COURT'S CONSTRUCTION.  SUCH A CONSTRUCTION WOULD NOT
BE DEPARTING WIDELY FROM EITHER THE STATUTE'S TERMS OR THEIR OBVIOUS
PURPOSE TO GIVE IMMUNITY BROADER THAN THE AMENDMENT'S, AND WOULD BE
WELL WITHIN THE BOUNDS OF STATUTORY INTERPRETATION.  ON THE OTHER HAND,
THE COURT'S REDUCTION OF THE STATUTORY WORDING TO EQUIVALENCE IN EFFECT
WITH THE CONSTITUTIONAL IMMUNITY, NEARLY IF NOT QUITE MAKES THAT
WORDING REDUNDANT OR MEANINGLESS; IN ANY EVENT, IT GOES SO FAR IN
REWRITING THE STATUTORY LANGUAGE AS TO AMOUNT TO INVASION OF THE
LEGISLATIVE FUNCTION. 

WHETHER ONE OR THE OTHER OF THE TWO BROADER VIEWS OF THE STATUTE'S
EFFECT IS ACCEPTED, THEREFORE, IT IS NEITHER NECESSARY NOR, I THINK,
REASONABLE OR CONSISTENT WITH THE STATUTORY WORDING AND OBJECT OR WITH
THIS COURT'S FUNCTION AS STRICTLY A JUDICIAL BODY TO GO SO FAR IN
RECONSTRUCTING WHAT CONGRESS HAS DONE, AS I THINK RESULTS FROM REDUCING
THE STATUTORY IMMUNITY TO EQUIVALENCE WITH THE CONSTITUTIONAL ONE. 

SINCE IT IS NOT CONTENDED THAT THERE WAS NOT FULL COMPLIANCE WITH THE
SUBPOENA IN THIS CASE, THAT COMPLIANCE WAS EXCESSIVE IN THE PRESENTLY
MATERIAL PORTIONS OF THE EVIDENCE OR INFORMATION PRODUCED, OR THAT THE
CLAIM OF CONSTITUTIONAL IMMUNITY PRECLUDED WAS FRIVOLOUS, INSUBSTANTIAL
OR NOT MADE IN GOOD FAITH, I THINK THE JUDGMENT SHOULD BE REVERSED BY
APPLYING THE STATUTORY IMMUNITY, WHETHER IN ONE OR THE OTHER OF THE TWO
FORMS WHICH MAY BE APPLIED. 

IN THIS VIEW I AM RELIEVED OF THE NECESSITY OF REACHING THE
CONSTITUTIONAL ISSUE RESULTING FROM THE COURT'S CONSTRUCTION, AND I
EXPRESS NO OPINION UPON IT EXCEPT TO SAY THAT I HAVE SUBSTANTIAL DOUBT
OF THE VALIDITY OF THE COURT'S CONCLUSION AND INDICATE SOME OF THE
REASONS FOR THIS.  I HAVE NONE THAT CONGRESS ITSELF MAY REQUIRE THE
KEEPING AND PRODUCTION OF SPECIFIED RECORDS, WITH APPROPRIATE
LIMITATIONS, IN CONNECTION WITH BUSINESS MATTERS IT IS ENTITLED TO AND
DOES REGULATE.  THAT IS TRUE NOT ONLY OF CORPORATE RECORDS, WILSON V.
UNITED STATES, 221 U.S. 361, BUT ALSO OF INDIVIDUAL BUSINESS RECORDS
UNDER APPROPRIATE SPECIFICATION AND LIMITATIONS, AS THE NUMEROUS
INSTANCES CITED IN MR. JUSTICE FRANKFURTER'S OPINION ILLUSTRATE. 

BUT I SERIOUSLY DOUBT THAT, CONSISTENTLY WITH THE FOURTH AMENDMENT,
AS WELL AS THE PROHIBITION OF THE FIFTH AGAINST COMPULSORY SELF
INCRIMINATION, CONGRESS COULD ENACT A GENERAL LAW REQUIRING ALL
PERSONS, INDIVIDUAL OR CORPORATE, ENGAGED IN BUSINESS SUBJECT TO
CONGRESSIONAL REGULATION TO PRODUCE, EITHER IN EVIDENCE OR FOR AN
ADMINISTRATIVE AGENCY'S OR OFFICIAL'S EXAMINATION, ANY AND ALL RECORDS,
WITHOUT OTHER LIMITATION, KEPT IN CONNECTION WITH THAT BUSINESS.  SUCH
A COMMAND WOULD APPROACH TOO CLOSELY IN EFFECT THE KIND OF GENERAL
WARRANT THE FOURTH AMENDMENT OUTLAWED.  THAT WOULD BE EVEN MORE
OBVIOUSLY TRUE, IF THERE WERE ANY DIFFERENCE, IN CASE CONGRESS SHOULD
DELEGATE TO AN ADMINISTRATIVE OR EXECUTIVE OFFICIAL THE POWER TO IMPOSE
SO BROAD A PROHIBITION. 

THE AUTHORITY HERE CONFERRED UPON THE ADMINISTRATOR BY THE EMERGENCY
PRICE CONTROL ACT, IN REFERENCE TO RECORD-KEEPING AND REQUIRING
PRODUCTION OF RECORDS, CLOSELY APPROACHES SUCH A COMMAND.  CONGRESS
NEITHER ITSELF SPECIFIES THE RECORDS TO BE KEPT AND PRODUCED UPON THE
ADMINISTRATOR'S DEMAND NOR LIMITS HIS POWER TO DESIGNATE THEM BY ANY
RESTRICTION OTHER THAN THAT HE MAY REQUIRE SUCH AS "HE DEEMS NECESSARY
OR PROPER TO ASSIST HIM," SEC. 202(A), (B), (C), IN CARRYING OUT HIS
FUNCTIONS OF INVESTIGATION AND PRESCRIBING REGULATIONS UNDER, AS WELL
AS OF ADMINISTRATION AND ENFORCEMENT OF, THE ACT.  AND AS THE AUTHORITY
TO SPECIFY RECORDS FOR KEEPING AND PRODUCTION WAS CARRIED OUT BY THE
ADMINISTRATOR, THE ONLY LIMITATION IMPOSED WAS THAT THE RECORDS SHOULD
BE SUCH AS HAD BEEN "CUSTOMARILY KEPT."  SEC. 14(B), M.P.R. 426, 8 FED.
REG. 9546, 9549.  SUCH A RESTRICTION IS LITTLE, IF ANY, LESS BROAD THAN
THE ONE CONCERNING WHICH I HAVE INDICATED DOUBT THAT CONGRESS ITSELF
COULD ENACT CONSISTENTLY WITH THE FOURTH AMENDMENT. 

THE AUTHORIZATION THEREFORE IS ONE WHICH RAISES SERIOUS QUESTION
WHETHER, BY REASON OF FAILURE TO MAKE MORE DEFINITE SPECIFICATION OF
THE RECORDS TO BE KEPT AND PRODUCED, THE LEGISLATION AND REGULATIONS
INVOLVED HERE DO NOT EXCEED THE PROHIBITION OF THE FOURTH AMENDMENT
AGAINST GENERAL WARRANTS AND UNREASONABLE SEARCHES AND SEIZURES.  THERE
IS A DIFFERENCE, OF COURSE, AND OFTEN A LARGE ONE, BETWEEN SITUATIONS
WHERE EVIDENCE IS SEARCHED OUT AND SEIZED WITHOUT WARRANT, AND OTHERS
WHERE IT IS REQUIRED TO BE PRODUCED UNDER JUDICIAL SAFEGUARDS.  BUT I
DO NOT UNDERSTAND THAT IN THE LATTER SITUATION ITS PRODUCTION CAN BE
REQUIRED UNDER A WARRANT THAT AMOUNTS TO A GENERAL ONE.  THE FOURTH
AMENDMENT STANDS AS A BARRIER TO JUDICIAL AND LEGISLATIVE AS WELL AS
EXECUTIVE OR ADMINISTRATIVE EXCESSES IN THIS RESPECT. 

ALTHOUGH I SERIOUSLY QUESTION WHETHER THE SUM OF THE STATUTE, AS
CONSTRUED BY THE COURT, THE PERTINENT REGULATIONS, AND THEIR EXECUTION
IN THIS CASE DOES NOT GO BEYOND CONSTITUTIONAL LIMITATIONS IN THE
BREADTH OF THEIR INQUIRY, I EXPRESS NO CONCLUSIVE OPINION CONCERNING
THIS, SINCE FOR ME THE STATUTORY IMMUNITY APPLIES AND IS SUFFICIENT TO
REQUIRE REVERSAL OF PETITIONER'S CONVICTION. 

FN1  56 STAT. 23, 30(SEC.  202(G)), AS AMENDED, 50 U.S.C. APP. SEC.
901, INCORPORATING THE PROVISIONS OF THE COMPULSORY TESTIMONY ACT OF
1893, 27 STAT. 443, 49 U.S.C. SEC. 46, QUOTED IN THE COURT'S OPINION IN
NOTE 2. 

FN2  NEITHER HEIKE V. UNITED STATES, 227 U.S. 131, NOR WILSON V.
UNITED STATES, 221 U.S. 361, PRINCIPALLY RELIED UPON BY THE COURT,
APPROACHED SUCH A RULING. 

THE WILSON CASE DEALT ONLY WITH CORPORATE RECORDS, AND THE CLAIM OF A
CORPORATE OFFICER HAVING THEIR CUSTODY TO CONSTITUTIONAL IMMUNITY
AGAINST BEING REQUIRED TO PRODUCE THEM.  NONE WERE REQUIRED BY LAW TO
BE KEPT, IN THE SENSE THAT ANY FEDERAL LAW REQUIRED THAT THEY BE KEPT
AND PRODUCED FOR REGULATORY PURPOSES.  THE ONLY RULING WAS THAT A
CORPORATE OFFICER HAS NO PERSONAL IMMUNITY AGAINST PRODUCING CORPORATE
RECORDS, WHICH ARE OF COURSE NOT HIS OWN, AND THAT THE CORPORATION HAS
NO IMMUNITY OF ITS OWN UNDER THE FIFTH AMENDMENT'S GUARANTY.  THE
DECISION IS NOT PERTINENT TO THE PRESENTLY TENDERED PROBLEM. 

THE HEIKE DECISION IS EQUALLY NOT APROPOS.  THE EXACT RULING WAS THAT
THE EVIDENCE, FROM THE PRODUCTION OF WHICH THE CLAIMED RIGHT OF
IMMUNITY, CONSTITUTIONAL AS WELL AS STATUTORY, AROSE, "DID NOT CONCERN
ANY MATTER OF THE PRESENT CHARGE.  NOT ONLY WAS THE GENERAL SUBJECT OF
THE FORMER INVESTIGATION WHOLLY DIFFERENT, BUT THE SPECIFIC THINGS
TESTIFIED TO HAD NO CONNECTION WITH THE FACTS NOW IN PROOF MUCH CLOSER
THAN THAT THEY ALL WERE DEALINGS OF THE SAME SUGAR COMPANY."  227 U.S.
131, 143.  THE ACTUAL RULING THEREFORE, APART FROM THE FACT THAT A
CORPORATE OFFICER CLAIMED IMMUNITY IN LARGE PART FOR PRODUCING
CORPORATE RECORDS, SEE ID., 142-143, WAS THAT THE PETITIONER HAD NOT
BROUGHT HIMSELF WITHIN THE SCOPE OF THE STATUTORY AUTHORIZATION,
NAMELY, BECAUSE THE "TRANSACTION, MATTER OR THING" CONCERNING WHICH HE
HAD TESTIFIED HAD NO SUBSTANTIAL CONNECTION WITH THE MATTERS INVOLVED
IN HIS PROSECUTION.  THE DECISION IS AUTHORITY FOR NOTHING MORE THAN
THAT THE IMMUNITY AT THE MOST DOES NOT ATTACH WHEN THE CONSTITUTIONAL
CLAIM PRECLUDED, BUT SAID TO BRING THE STATUTE INTO PLAY, IS
INSUBSTANTIAL.  THE DICTUM STRESSED IN THE COURT'S OPINION THAT THE
STATUTE "SHOULD BE CONSTRUED, SO FAR AS ITS WORDS FAIRLY ALLOW THE
CONSTRUCTION, AS COTERMINOUS WITH" (P. 142) THE CONSTITUTIONAL
IMMUNITY, NOT ONLY WAS UNNECESSARY, BUT AS THE CLAUSE ITSELF EMPHASIZED
EXPLICITLY NEGATIVES EXACT EQUIVALENCE. 

FN3  THE WORDING OF THE COMPULSORY TESTIMONY ACT NEITHER REQUIRES NOR
SUGGESTS THAT THE RIGHT TO THE IMMUNITY GIVEN SHOULD TURN ON THE
VALIDITY OR INVALIDITY OF THE CONSTITUTIONAL CLAIM WHICH IS PRECLUDED. 
BUT AT THE LEAST THE ACT WOULD SEEM CLEARLY TO COVER BOTH VALID AND
SUBSTANTIALLY DOUBTFUL ONES. 

FN4  SEE THE TEXT OF THE COMPULSORY TESTIMONY ACT OF 1893 QUOTED IN
NOTE 2 OF THE COURT'S OPINION. 

FN5  THE EXPRESS LIMITATION OF THE IMMUNITY TO TESTIMONY OR EVIDENCE
PRODUCED IN OBEDIENCE TO THE SUBPOENA EXCLUDES IMMUNITY FOR VOLUNTEERED
TESTIMONY OR EVIDENCE, I.E., SUCH AS IS GIVEN IN EXCESS OF THE
SUBPOENA'S REQUIREMENT.  BUT THE TERMS OF THE STATUTE PURPORT TO
EXCLUDE NO OTHER. 

FN6  CF. HEIKE V. UNITED STATES, 227 U.S. 131.  SEE NOTE 2 SUPRA.
..END :



















UNITED STATES V. HOFFMAN, 335 U.S. 77 


NO. 97.  ARGUED OCTOBER 23, 1947.  - DECIDED JUNE 21, 1948.  - 68
F.SUPP.  53, REVERSED. 


AFTER APPELLEE HAD PRODUCED IN AN ADMINISTRATIVE PROCEEDING RECORDS
KEPT UNDER A REQUIREMENT OF THE PRICE ADMINISTRATOR'S REGULATIONS, THE
PRICE ADMINISTRATOR PETITIONED THE DISTRICT COURT TO INSTITUTE CRIMINAL
CONTEMPT PROCEEDINGS AGAINST HIM FOR VIOLATING AN INJUNCTION AGAINST
SELLING USED CARS AT OVER-CEILING PRICES.  THE COURT APPOINTED THE
UNITED STATES ATTORNEY AND THE O.P.A. DISTRICT ENFORCEMENT ATTORNEY AS
"ATTORNEYS TO PROSECUTE THE CRIMINAL CHARGES  ...  ON BEHALF OF THE
COURT AND OF THE UNITED STATES."  APPELLEE'S MOTION TO DISMISS WAS
GRANTED ON THE GROUND THAT HE WAS ENTITLED UNDER SEC. 202(G) OF THE
EMERGENCY PRICE CONTROL ACT TO IMMUNITY FROM PROSECUTION.  THE
GOVERNMENT APPEALED TO THIS COURT UNDER THE CRIMINAL APPEALS ACT. 
HELD: 

1.  THE UNITED STATES WAS, IN ANY RELEVANT SENSE, A PARTY TO THE
PROCEEDINGS, AND THE APPEAL WAS PROPERLY BROUGHT UNDER THE CRIMINAL
APPEALS ACT.  PP. 78-79. 

2.  APPELLEE WAS NOT ENTITLED TO IMMUNITY UNDER SEC. 202(G) OF THE
PRICE CONTROL ACT AND THE RULE TO SHOW CAUSE SHOULD NOT HAVE BEEN
DISMISSED.  SEE SHAPIRO V. UNITED STATES, ANTE, P. 1.  P. 79. 

UNITED STATES V. HOFFMAN. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

ON FEB. 27, 1946, THE PRICE ADMINISTRATOR FILED A PETITION, IN THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, TO INSTITUTE CRIMINAL
CONTEMPT PROCEEDINGS AGAINST APPELLEE.  THE PETITION CHARGED APPELLEE
WITH HAVING MADE NUMEROUS SALES OF USED CARS AT OVER-CEILING PRICES IN
VIOLATION OF AN INJUNCTION PREVIOUSLY ISSUED BY THE DISTRICT COURT.  A
RULE TO SHOW CAUSE WAS ISSUED, BUT WAS DISMISSED ON MOTION OF THE
APPELLEE, ON THE GROUND THAT HE WAS ENTITLED TO IMMUNITY UNDER SEC.
202(G) OF THE EMERGENCY PRICE CONTROL ACT FROM PROSECUTION FOR THE
TRANSACTIONS UPON WHICH THE PETITION WAS FOUNDED.  68 F.SUPP.  53. 

THE GOVERNMENT BROUGHT THIS APPEAL, UNDER THE PROVISIONS OF THE
CRIMINAL APPEALS ACT,  FN1  TO REVIEW THE DECISION OF THE DISTRICT
COURT.  THE MAIN ISSUE IS THE SAME AS THAT PRESENTED IN THE COMPANION
CASE, SHAPIRO V. UNITED STATES, ANTE, P. 1, BUT TWO ADDITIONAL MINOR
QUESTIONS ARE RAISED: 

1.  APPELLEE URGES THAT THE APPEAL WAS NOT PROPERLY TAKEN BY THE
UNITED STATES BECAUSE THE GOVERNMENT WAS NOT A PARTY TO THE PROCEEDINGS
IN THE DISTRICT COURT.  THE RECORD SHOWS, HOWEVER, THAT THE LITIGATION
WAS INSTITUTED IN THAT COURT BY A PETITION OF THE OPA DISTRICT
ENFORCEMENT ATTORNEY ON BEHALF OF THE PRICE ADMINISTRATOR.  WHEN THE
RULE TO SHOW CAUSE WAS ISSUED, THE COURT APPOINTED THE UNITED STATES
ATTORNEY AND THE OPA DISTRICT ENFORCEMENT ATTORNEY AS "ATTORNEYS TO
PROSECUTE THE CRIMINAL CHARGES CONTAINED IN THE PETITION FILED HEREIN
ON BEHALF OF THE COURT AND OF THE UNITED STATES."  SEE RULE 42(B) OF
THE RULES OF CRIMINAL PROCEDURE, 327 U.S. 865-66.  THUS THE UNITED
STATES WAS, IN ANY RELEVANT SENSE, A PARTY TO THE PROCEEDINGS, AND THE
APPEAL WAS PROPERLY BROUGHT UNDER THE CRIMINAL APPEALS ACT.  SEE UNITED
STATES V. GOLDMAN, 277 U.S. 229, 235(1928); EX PARTE GROSSMAN, 267 U.S.
87, 115 ET SEQ. (1925). 

2.  THE GOVERNMENT MENTIONS A FURTHER CONSIDERATION, NOT INVOLVED IN
THE SHAPIRO CASE.  THE RECORD DOES NOT STATE THAT THE APPELLEE WAS
SWORN AND PRODUCED THE RECORDS UNDER OATH, A CONDITION PRECEDENT TO THE
ATTAINMENT OF IMMUNITY UNDER A 1906 AMENDMENT, 49 U.S.C. SEC. 48, TO
THE COMPULSORY TESTIMONY ACT OF 1893.  IT IS UNNECESSARY TO CONSIDER
THIS CONTENTION BOTH BECAUSE IT DOES NOT APPEAR TO HAVE BEEN DULY
RAISED IN THE COURT BELOW, AND BECAUSE THE GROUNDS CONSIDERED AND THE
VIEWS SET FORTH IN OUR OPINION IN THE SHAPIRO CASE SUFFICE TO DISPOSE
OF THIS APPEAL. 

THE DECISION OF THE DISTRICT COURT IS REVERSED AND THE CASE REMANDED
FOR FURTHER PROCEEDINGS.  REVERSED. 

FN1 34 STAT. 1246, AS AMENDED BY 56 STAT. 271, 18 U.S.C. (SUPP. V,
1946) SEC. 682, AND BY SEC. 238 OF THE JUDICIAL CODE AS AMENDED, 28
U.S.C. SEC. 345. 

MR. JUSTICE FRANKFURTER DISSENTS FOR THE REASONS STATED IN HIS
DISSENTING OPINION IN SHAPIRO V. UNITED STATES, ANTE, P. 36.  MR.
JUSTICE JACKSON AND MR. JUSTICE MURPHY DISSENT FOR THE REASONS STATED
IN MR. JUSTICE JACKSON'S DISSENTING OPINION IN SHAPIRO V. UNITED
STATES, ANTE, P. 70.  MR. JUSTICE RUTLEDGE DISSENTS FOR THE REASONS
STATED IN HIS DISSENTING OPINION IN SHAPIRO V. UNITED STATES, ANTE, P.
71. 
..END :







MEMPHIS GAS CO. V. STONE, 335 U.S. 80 


NO. 94.  ARGUED DECEMBER 8, 1947.  - DECIDED JUNE 21, 1948.  - 201
MISS.  670, 29 SO.2D 268, AFFIRMED. 


PETITIONER, A DELAWARE CORPORATION, OWNS AND OPERATES A NATURAL GAS
PIPELINE FROM LOUISIANA FIELDS TO MEMPHIS, TENNESSEE.  APPROXIMATELY
135 MILES OF THE LINE LIE IN MISSISSIPPI, AND THERE ARE TWO COMPRESSOR
STATIONS IN THAT STATE.  IN ADDITION TO AD VALOREM TAXES, MISSISSIPPI
IMPOSES A "FRANCHISE OR EXCISE" TAX OF $1.50 FOR EACH $1,000 VALUE OF
CAPITAL USED, INVESTED OR EMPLOYED WITHIN THE STATE.  PETITIONER, WHOSE
BUSINESS IN MISSISSIPPI WAS EXCLUSIVELY INTERSTATE, CHALLENGED THE
VALIDITY OF THE LATTER TAX UNDER THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  AS APPLIED TO PETITIONER, THE MISSISSIPPI SUPREME COURT
SUSTAINED THE TAX AS RECOMPENSE TO THE STATE FOR PROTECTION OF "LOCAL
ACTIVITIES IN MAINTAINING, KEEPING IN REPAIR, AND OTHERWISE IN MANNING"
THE 135 MILES OF LINE WITHIN THE STATE.  HELD:  THE JUDGMENT OF THE
STATE SUPREME COURT IS AFFIRMED.  PP. 80-83, 96. 

MEMPHIS NATURAL GAS CO. V. STONE, CHAIRMAN, STATE TAX COMMISSION. 

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI. 

THE VALIDITY UNDER THE FEDERAL CONSTITUTION OF A STATE FRANCHISE TAX
IMPOSED ON PETITIONER WAS SUSTAINED BY THE STATE SUPREME COURT.  201
MISS.  670, 29 SO.2D 268.  THIS COURT GRANTED CERTIORARI.  331 U.S.
802.  AFFIRMED, P. 96. 

MR. JUSTICE REED ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN. 

THE MEMPHIS NATURAL GAS COMPANY IS A DELAWARE CORPORATION WHICH OWNS
AND OPERATES A PIPE LINE FOR THE TRANSPORTATION OF NATURAL GAS.  THE
LINE RUNS FROM THE MONROE GAS FIELD IN THE STATE OF LOUISIANA THROUGH
THE STATES OF ARKANSAS AND MISSISSIPPI TO MEMPHIS AND OTHER POINTS IN
THE STATE OF TENNESSEE.  APPROXIMATELY 135 MILES OF THE PIPE LINE LIE
WITHIN MISSISSIPPI; AT TWO POINTS WITHIN THAT STATE THERE ARE
COMPRESSING STATIONS.  IT IS STIPULATED THAT THE GAS COMPANY HAS NEVER
ENGAGED IN ANY INTRASTATE COMMERCE IN MISSISSIPPI; THAT IT HAS ONLY ONE
CUSTOMER WITHIN THE STATE, THE MISSISSIPPI POWER AND LIGHT COMPANY, TO
WHICH IT SELLS GAS FROM ITS INTERSTATE LINE AT WHOLESALE FROM SEVERAL
DELIVERY POINTS; THAT THE GAS COMPANY HAS NEVER QUALIFIED UNDER THE
LAWS OF MISSISSIPPI TO DO INTRASTATE BUSINESS WITHIN THAT STATE; THAT
IT HAS NO AGENT FOR THE SERVICE OF PROCESS AND THAT IT HAS NO OFFICE
WITHIN THE STATE; AND THAT ITS ONLY EMPLOYEES AND REPRESENTATIVES IN
MISSISSIPPI ARE THOSE NECESSARY TO MAINTAIN THE PIPE LINE AND ITS
AUXILIARY APPURTENANCES. 

THE GAS COMPANY HAS PAID ALL AD VALOREM TAXES ASSESSED AGAINST ITS
PROPERTY IN MISSISSIPPI PURSUANT TO THE STATE LAW.  IN ADDITION TO THE
AD VALOREM TAXES, MISSISSIPPI IMPOSES A "FRANCHISE OR EXCISE TAX" UPON
ALL CORPORATIONS "DOING BUSINESS" WITHIN THE STATE.  FN1  FOR THE
PURPOSE OF THE ACT, "DOING BUSINESS" IS DEFINED "(TO) MEAN AND (TO)
INCLUDE EACH AND EVERY ACT, POWER OR PRIVILEGE EXERCISED OR ENJOYED IN
THIS STATE, AS AN INCIDENT TO, OR BY VIRTUE OF THE POWERS AND
PRIVILEGES ACQUIRED BY THE NATURE OF SUCH ORGANIZATION."  FN2  THE TAX
IS "EQUAL TO $1.50 OF EACH $1,000.00 OR FRACTION THEREOF OF THE VALUE
OF CAPITAL USED, INVESTED OR EMPLOYED" WITHIN THE STATE. 

THE GAS COMPANY FILED A PETITION FOR REVIEW BY THE STATE TAX
COMMISSION OF MISSISSIPPI OF THE FRANCHISE TAX ASSESSED AGAINST IT FOR
THE YEARS 1942, 1943 AND 1944 BY THE STATE TAX COMMISSIONER.  IN THIS
PETITION THE GAS COMPANY ARGUED THAT THE IMPOSITION OF THE TAX BY THE
STATE WAS AN ACT PROHIBITED BY THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  FROM AN ORDER OF THE TAX COMMISSION APPROVING THE ACTION
OF THE COMMISSIONER, THE GAS COMPANY APPEALED TO THE CIRCUIT COURT OF
HINDS COUNTY, MISSISSIPPI.  THAT COURT REVERSED THE TAX COMMISSION, BUT
WAS ITSELF REVERSED BY THE SUPREME COURT OF MISSISSIPPI.  THE SUPREME
COURT SAID THAT MISSISSIPPI HAD MADE "NO ATTEMPT TO TAX INTERSTATE
COMMERCE AS SUCH, BUT THE LEVY IS AN EXACTION WHICH THE STATE REQUIRES
AS A RECOMPENSE FOR ITS PROTECTION OF LAWFUL ACTIVITIES CARRIED ON IN
THIS STATE BY THE CORPORATION, FOREIGN OR DOMESTIC, ACTIVITIES WHICH
ARE INCIDENTAL TO THE POWERS AND PRIVILEGES POSSESSED BY IT BY THE
NATURE OF ITS ORGANIZATION - HERE THE LOCAL ACTIVITIES IN MAINTAINING,
KEEPING IN REPAIR, AND OTHERWISE IN MANNING THE FACILITIES OF THE
SYSTEM THROUGHOUT THE 135 MILES OF ITS LINE IN THIS STATE."  201 MISS. 
670, 674, 29 SO.2D 268, 270.  IT ARGUED THAT THE STATE TAX DID NOT BEAR
DIRECTLY UPON INTERSTATE COMMERCE AND THAT ANY BURDEN IMPOSED UPON THAT
COMMERCE WAS REMOTE AND UNSUBSTANTIAL.  IT CONCLUDED THAT THE LOCAL TAX
WAS NOT UNCONSTITUTIONAL AND ORDERED THAT THE TAXES IN QUESTION, PLUS
PENALTIES, BE PAID BY THE GAS COMPANY.  A PETITION FOR CERTIORARI,
UNDER SEC. 237(B), JUDICIAL CODE, WAS FILED IN THIS COURT BY THE GAS
COMPANY ON MAY 17, 1947.  IT PRESENTED THE QUESTION AS TO WHETHER THE
JUDGMENT VIOLATED THE COMMERCE CLAUSE BY REQUIRING A FOREIGN
UNDOMESTICATED CORPORATION, ENGAGED IN INTERSTATE COMMERCE, TO PAY THE
TAX.  THAT PETITION WAS GRANTED JUNE 16, 1947.  331 U.S. 802. 

THE SUGGESTION IS MADE THAT BY THE STIPULATION OF FACTS IN THE TRIAL
COURT, MISSISSIPPI CONCEDES THE TRUTH OF AN ALLEGATION OF THE
CHALLENGED PETITION BEFORE THE STATE TAX COMMISSION READING AS
FOLLOWS: 

"TO CARRY ON INTERSTATE COMMERCE IS NOT A FRANCHISE OR A PRIVILEGE
GRANTED BY THE STATE; IT IS A RIGHT WHICH EVERY CITIZEN OF THE UNITED
STATES IS ENTITLED TO EXERCISE UNDER THE CONSTITUTION AND LAWS OF THE
UNITED STATES; AND THE ACCESSION AND POSSESSION OF MERE CORPORATE
FACILITIES, AS A MATTER OF CONVENIENCE IN CARRYING ON THEIR BUSINESS,
CANNOT HAVE THE EFFECT OF DEPRIVING IT OF SUCH RIGHT, UNLESS CONGRESS
SHOULD SEE FIT TO INTERPOSE SOME CONTRARY REGULATION.  YOUR PETITIONER
OBTAINS NO PROTECTION FROM THE STATE OF MISSISSIPPI AND ACQUIRES NO
POWERS OR PRIVILEGES IN ITS INTERSTATE ACTIVITY OTHER THAN THE
PROTECTION AFFORDED YOUR PETITIONER BY VIRTUE OF THE PAYMENT OF AN AD
VALOREM TAX ON THE PROPERTY USED BY THE COMPANY WHOLLY IN INTERSTATE
COMMERCE." 

IT IS SAID THAT BECAUSE OF THIS CONCESSION MISSISSIPPI CANNOT EXACT A
TAX FROM PETITIONER AS THE STATE "AFFORDS NOTHING TO THIS PETITIONER
FOR WHICH IT COULD ASK RECOMPENSE BY WAY OF A TAX."  THE PERTINENT PART
OF THE STIPULATION READS:  "THAT ALL OF THE FACTS STATED IN SAID
PETITION ARE TRUE AND NO PROOF OF THE SAME SHALL BE REQUIRED IN THIS
CAUSE."  NO CONTENTION AS TO THE CONCESSION IS PRESENTED TO US BY THE
PETITION FOR CERTIORARI, ASSIGNMENT OF ERRORS OR BRIEF.  PETITIONER'S
CONTENTION IS THAT THE TAX LEVIED AGAINST IT IS INVALID UNDER THE
COMMERCE CLAUSE.  PETITIONER'S FAILURE TO RAISE THE QUESTION ALONE
WOULD JUSTIFY A REFUSAL HERE TO CONSIDER THE CONTENTION.  SEE
CONNECTICUT R. CO. V. PALMER, 305 U.S. 493, 496; KESSLER V. STRECKER,
307 U.S. 22, 34.  THE ANSWER TO THE SUGGESTION, HOWEVER, SEEMS TO US
CLEAR.  THE ARGUMENT IS THAT THE SUPREME COURT OF MISSISSIPPI MUST BE
REVERSED BECAUSE THE TAX BEFORE US "IS A TAX ON THE PRIVILEGE OF
ENGAGING IN THE DOING OF INTERSTATE BUSINESS WITHIN THE STATE, AND SUCH
A TAX IS  ...  INVALID UNDER THE COMMERCE CLAUSE."  THIS CONCLUSION
SEEMS TO BE REACHED BY THE FOLLOWING ANALYSIS.  THE STIPULATION BETWEEN
THE COMPANY AND THE STATE TAX COMMISSION IS READ AS IF THE PHRASE "IN
ITS INTERSTATE ACTIVITY" MODIFIED ONLY THE WORDS "POWERS" AND
"PRIVILEGES" AND NOT THE WORD "PROTECTION."  IF THAT IS A PROPER
CONSTRUCTION OF THIS STIPULATION, THEN THE PARTIES HAVE AGREED THAT THE
COMPANY HAS OBTAINED BY THE TAX "NO PROTECTION FROM THE STATE  ...
OTHER THAN THE PROTECTION AFFORDED ...  BY VIRTUE OF THE PAYMENT OF AN
AD VALOREM TAX  ...  "  THE DISSENT THEN CONCLUDES THAT THE IMPOSITION
OF THE AD VALOREM TAXES "EXHAUSTED" THE STATE'S TAXING POWER AND,
CONSEQUENTLY, THAT THE TAX "IS A TAX ON THE PRIVILEGE OF ENGAGING IN
INTERSTATE BUSINESS" AND, AS SUCH, "INVALID UNDER THE COMMERCE
CLAUSE." 

THE STATE SUPREME COURT CONSTRUED THE TAX AS "AN EXACTION  ...  AS A
RECOMPENSE FOR  ... PROTECTION OF  ...  THE LOCAL ACTIVITIES IN
MAINTAINING, KEEPING IN REPAIR, AND OTHERWISE IN MANNING THE FACILITIES
OF THE SYSTEM THROUGHOUT THE 135 MILES OF ITS LINE IN THIS STATE."  AS
WE ARE BOUND BY THE CONSTRUCTION OF THE STATE STATUTE BY THE STATE
COURT, IT IS IDLE TO SUGGEST THAT THE TAX IS ON "THE PRIVILEGE OF
ENGAGING IN INTERSTATE BUSINESS."  NOR CAN THIS RESULT BE CHANGED BY
THE SUGGESTION THAT THE TAX CANNOT BE ON ANY LOCAL INCIDENTS "BECAUSE
THEY HAVE ALREADY BEEN FULLY TAXED."  THE LOCAL INCIDENTS, SPOKEN OF BY
THE SUPREME COURT OF MISSISSIPPI, WERE NOT THE TAXABLE EVENTS SELECTED
FOR THE IMPOSITION OF THE AD VALOREM TAX.  THESE LOCAL INCIDENTS WERE
THE BASIS FOR THE FRANCHISE OR EXCISE TAX NOW IN CONTROVERSY.  NO
REASON IS PERCEIVED WHY MISSISSIPPI CANNOT EXACT THIS DIFFERENT TAX FOR
THE SAME PROTECTION.  IT IS AS THOUGH THE AD VALOREM RATE HAD BEEN
INCREASED.  THE POWER TO LEVY SUCH A NEW TAX IS NOT AND COULD NOT BE
QUESTIONED EXCEPT AS AN INTERFERENCE WITH COMMERCE.  THE LEGAL QUESTION
REMAINS AS TO WHETHER A STATE CAN EXACT A TAX ON THOSE ACTIVITIES UNDER
THE COMMERCE CLAUSE. 

THE FACTS OF THIS CASE PRESENT AGAIN THE PERENNIAL PROBLEM OF THE
VALIDITY OF A STATE TAX FOR THE PRIVILEGE OF CARRYING ON, WITHIN A
STATE, CERTAIN ACTIVITIES ADMITTEDLY NECESSARY TO MAINTAIN OR OPERATE
THE INTERSTATE BUSINESS OF THE TAXPAYER.  THIS TRANSPORTATION BY PIPE
LINE WITH DELIVERIES WITHIN THE STATE AT WHOLESALE ONLY IS INTERSTATE
BUSINESS.  PANHANDLE EASTERN PIPE LINE CO. V. COMM'N, 332 U.S. 507,
513, AND CASES CITED.  NOTWITHSTANDING THE POWER GRANTED TO CONGRESS BY
THE COMMERCE CLAUSE TO REGULATE THE TAXATION OF INTERSTATE COMMERCE, IF
IT SO DESIRES,  FN3 THAT BODY GENERALLY HAS LEFT THE DETERMINATION TO
THE COURTS OF WHAT STATE TAXES ON OR AFFECTING COMMERCE WERE
PERMISSIBLE AND WHAT IMPERMISSIBLE UNDER THE COMMERCE CLAUSE.  THE
STATES HAVE SOUGHT BY TAXATION TO COLLECT FROM THE INSTRUMENTALITIES OF
COMMERCE COMPENSATION FOR THE PROTECTION AND ADVANTAGES RENDERED TO
COMMERCE BY STATE GOVERNMENTS.  THE FEDERAL COURTS HAVE SOUGHT OVER THE
YEARS TO DETERMINE THE SCOPE OF A STATE'S POWER TO TAX IN THE LIGHT OF
THE COMPETING INTERESTS OF INTERSTATE COMMERCE, AND OF THE STATES, WITH
THEIR POWER TO IMPOSE REASONABLE TAXES UPON INCIDENTS CONNECTED WITH
THAT COMMERCE.  SEE GWIN, WHITE & PRINCE, INC. V. HENNEFORD, 305 U.S.
434, 441.  WE CONTINUE AT THAT TASK, CHARACTERIZED LONG AGO AS AN AREA
OF "NICE DISTINCTIONS."  GALVESTON, HARRISBURG & S.A.R. CO. V. TEXAS,
210 U.S. 217, 225. 

THERE IS NO QUESTION HERE OF DUE PROCESS.  THE GAS COMPANY'S PROPERTY
IS IN THE TAXING STATE WHERE THE TAXABLE INCIDENTS OCCURRED.  MCLEOD V.
DILWORTH CO., 322 U.S. 327, 329.  SEE NIPPERT V. CITY OF RICHMOND, 327
U.S. 416, 423.  NOR IS THE MEASURE USED TO CALCULATE THE AMOUNT OF THE
TAX CHALLENGED.  THAT MEASURE IS $1.50 ON EACH THOUSAND DOLLARS OF
CAPITAL EMPLOYED WITHIN MISSISSIPPI.  SOUTHERN GAS CORP. V. ALABAMA,
301 U.S. 148, 156, THIRD.  THE ATTACK ON THE MISSISSIPPI STATUTE IS
THAT IT VIOLATES THE COMMERCE CLAUSE BY PUTTING A TAX ON THE COMMERCE
ITSELF. 

THE LOCAL INCIDENTS COVERED BY THE DEFINITION OF DOING BUSINESS
HEREINBEFORE SET OUT, SEC. 9312, MISSISSIPPI CODE, SUPRA, WERE SAID BY
THE SUPREME COURT IN THIS CASE TO BE "THE LOCAL ACTIVITIES IN
MAINTAINING, KEEPING IN REPAIR, AND OTHERWISE IN MANNING THE FACILITIES
OF THE SYSTEM" IN MISSISSIPPI.  201 MISS.  670, 674, 29 SO.2D 268,
270.  FN4  THE CASES JUST CITED IN THE NOTE SHOW THAT, FROM THE
VIEWPOINT OF THE COMMERCE CLAUSE, WHERE THE CORPORATIONS CARRY ON A
LOCAL ACTIVITY SUFFICIENTLY SEPARATE FROM THE INTERSTATE COMMERCE,
STATE TAXES MAY BE VALIDLY LAID, EVEN THOUGH THE EXACTION FROM THE
BUSINESS OF THE TAXPAYER IS PRECISELY THE SAME AS THOUGH THE TAX HAD
BEEN LEVIED UPON THE INTERSTATE BUSINESS ITSELF.  FN5  BUT THE CHOICE
OF A LOCAL INCIDENT FOR THE TAX, WITHOUT MORE, IS NOT ENOUGH.  THERE
ARE ALWAYS CONVENIENT LOCAL INCIDENTS IN EVERY INTERSTATE OPERATION. 
NIPPERT V. CITY OF RICHMOND, SUPRA, AT 423.  THE INCIDENT SELECTED
SHOULD BE ONE THAT DOES NOT LEND ITSELF TO REPEATED EXACTIONS IN OTHER
STATES.  OTHERWISE INTRASTATE COMMERCE MAY BE PREFERRED OVER INTERSTATE
COMMERCE.  FN6  AGAIN, WHERE THERE IS A STATE EXACTION FOR SOME
INTRASTATE PRIVILEGE THAT DISCRIMINATES AGAINST INTERSTATE COMMERCE, IT
IS INVALID EVEN THOUGH IT IS SUFFICIENTLY DISCONNECTED FROM THE
COMMERCE TO BE TAXABLE OTHERWISE.  FN7 

THE MISSISSIPPI TAX UNDER CONSIDERATION IS NOT DISCRIMINATORY.  IT IS
LEVIED, IN ADDITION TO AD VALOREM TAXES, ON CORPORATIONS CREATED UNDER
MISSISSIPPI LAWS, THOSE ADMITTED TO DO BUSINESS IN MISSISSIPPI AND
THOSE OPERATING IN THE STATE WITHOUT ANY AUTHORITY FROM THE STATE.  SEE
NOTE 1, SUPRA.  PETITIONER OPERATED LOCAL COMPRESSOR STATIONS.  WE HAVE
HERETOFORE HELD THAT THE GENERATION OF ELECTRIC ENERGY FOR THE
OPERATION OF SUCH STATIONS WAS SUBJECT TO STATE TAXATION WITHOUT
VIOLATION OF THE COMMERCE CLAUSE.  COVERDALE V. ARKANSAS-LOUISIANA PIPE
LINE CO., 303 U.S. 604.  A GLANCE AT THE ACTIVITIES, NAMED ABOVE,
LISTED BY THE SUPREME COURT OF MISSISSIPPI, SHOWS THAT THERE IS NO
POSSIBILITY OF MULTIPLE TAXATION THROUGH THE SAME EXACTIONS BY OTHER
STATES.  THE AMOUNT OF THE TAX IS REASONABLE N8.  IT IS PROPERLY
APPORTIONED TO THE INVESTMENT IN MISSISSIPPI.  FN9 

HOWEVER, A STATE TAX UPON A CORPORATION DOING ONLY AN INTERSTATE
BUSINESS MAY BE INVALID UNDER OUR DECISIONS BECAUSE LEVIED (1) UPON THE
PROVILEGE OF DOING INTERSTATE BUSINESS WITHIN THE STATE, FN10  OR (2)
UPON SOME LOCAL EVENT SO MUCH A PART OF INTERSTATE BUSINESS AS TO BE IN
EFFECT A TAX UPON THE INTERSTATE BUSINESS ITSELF.  FN11  PETITIONER
ASSERTS THAT THE MISSISSIPPI STATUTE SO OFFENDS. 

FIRST.  THIS COURT HAS DRAWN THE DISTINCTION IN THE FIELD OF PIPE
LINE TAXATION BETWEEN STATE STATUTES ON THE PRIVILEGE OF DOING BUSINESS
WHERE ONLY INTERSTATE BUSINESS WAS DONE AND THOSE UPON APPROPRIATE
LOCAL INCIDENTS.  IN OZARK PIPE LINE CORP. V. MONIER, 266 U.S. 555, THE
OZARK PIPE LINE CORPORATION OPERATED AN OIL PIPE LINE FROM OKLAHOMA,
THROUGH MISSOURI TO A POINT IN ILLINOIS.  OIL WAS NEITHER RECEIVED NOR
DELIVERED IN MISSOURI.  THIS WAS INTERSTATE TRANSPORTATION.  INTERSTATE
NATURAL GAS CO. V. POWER COMM'N, 331 U.S. 682, 689, AND CASES CITED AT
NOTE 12.  IT HAD ITS PRINCIPAL OFFICE IN MISSOURI.  IT HAD A LICENSE
FROM MISSOURI AUTHORIZING IT TO ENGAGE "'EXCLUSIVELY IN THE BUSINESS OF
TRANSPORTING CRUDE PETROLEUM BY PIPE LINE.'"  PAGE 561.  THE STATE TAX
WAS AN APPORTIONED FRANCHISE TAX.  FN12  IT WAS CONSTRUED BY THIS COURT
AS A TAX "UPON THE PRIVILEGE OR RIGHT TO DO BUSINESS."  PAGE 562. 
VIRGINIA V. IMPERIAL COAL CO., 293 U.S. 15, 20.  AS SUCH A TAX UPON A
CORPORATION DOING ONLY AN INTERSTATE BUSINESS, IT WAS HELD INVALID
UNDER THE COMMERCE CLAUSE.  FN13    IN STATE TAX COMMISSION V.
INTERSTATE NATURAL GAS CO., 284 U.S. 41, A PIPE LINE RAN FROM
LOUISIANA, THROUGH MISSISSIPPI AND BACK TO LOUISIANA.  TWO LOCAL
MISSISSIPPI DISTRIBUTORS TOOK GAS IN THAT STATE FROM THE RESPONDENT. 
MISSISSIPPI SOUGHT TO TAX THE RESPONDENT UNDER A PRIVILEGE TAX LAW THAT
REQUIRED THE PIPE LINE COMPANY TO GET A LICENSE TO EXERCISE THE
PRIVILEGE DESIRED, THAT IS, TO OPERATE AN INTERSTATE PIPE LINE.  FN14
THIS COURT HELD THAT THE ENTIRE BUSINESS OF THE RESPONDENT WAS
INTERSTATE DESPITE A CLAIMED LOCAL ACTIVITY BY THE REDUCTION OF
PRESSURE TO DELIVER GAS TO THE MISSISSIPPI DISTRIBUTORS.  IT FOLLOWED
THAT THE STATE LICENSE FOR THE PRIVILEGE OF ENGAGING IN THE BUSINESS OF
OPERATING A PIPE LINE WAS AN INVALID BURDEN UNDER THE COMMERCE CLAUSE. 
FN15 

ON THE OTHER HAND, IN INTERSTATE NATURAL GAS CO. V. STONE, 308 U.S.
522, WE AFFIRMED PER CURIAM A JUDGMENT OF THE FIFTH CIRCUIT IN STONE V.
INTERSTATE NATURAL GAS CO., 103 F.2D 544, ON THE AUTHORITY OF SOUTHERN
GAS CORPORATION V. ALABAMA, SUPRA AT 153, 156-57.  THE TAX IN QUESTION
IN THE 308 U.S. CASE WAS EXACTED BY THE SAME MISSISSIPPI STATUTE
EMPLOYED HERE.  THIS DIFFERS FROM THE MISSISSIPPI STATUTE IN THE
INTERSTATE CASE IN 284 U.S. THE INTERSTATE CASE IN 308 U.S. DIFFERED
FROM THIS PRESENT CASE, SO FAR AS IS MATERIAL, ONLY IN THE FACT THAT
THE FOREIGN CORPORATION FILED A COPY OF ITS CHARTER AS A PREREQUISITE
TO DOING BUSINESS IN MISSISSIPPI AND APPOINTED AN AGENT FOR THE SERVICE
OF PROCESS.  THE PAGE REFERENCES IN THE STONE CITATION OF THE SOUTHERN
GAS CASE SHOW THAT THIS COURT CONSIDERED THE MISSISSIPPI TAX IN THE
STONE CASE AS ONE NOT ON BUSINESS BUT "'ON THE PRIVILEGE OF EXERCISING
CORPORATE FUNCTIONS WITHIN THE STATE AND ITS EMPLOYMENT OF ITS CAPITAL
IN (MISSISSIPPI).'"  SOUTHERN GAS CORP. V. ALABAMA, SUPRA, 153.  IN THE
SOUTHERN GAS CASE, PAGE 155, THE COMPANY DID INTRASTATE BUSINESS, BUT
IN THE STONE CASE NO INTRASTATE BUSINESS WAS DONE.  THUS THE LOCAL
EVENT OF QUALIFYING FOR INTRASTATE BUSINESS, WHICH OCCURRED IN BOTH
SOUTHERN GAS AND STONE, BROUGHT A DIFFERENT RESULT FROM THAT IN THE
OZARK CASE AND IN INTERSTATE, 284 U.S., WHERE THE PRIVILEGE OR RIGHT TO
DO INTERSTATE BUSINESS WAS PROTECTED.  MISSISSIPPI THROUGH ITS SUPREME
COURT, HAS DECLARED THAT THERE IS NO ATTEMPT TO TAX THE PRIVILEGE OF
DOING AN INTERSTATE BUSINESS OR TO SECURE ANYTHING FROM THE CORPORATION
BY THIS STATUTE EXCEPT COMPENSATION FOR THE PROTECTION OF THE
ENUMERATED LOCAL ACTIVITIES OF "MAINTAINING, KEEPING IN REPAIR, AND
OTHERWISE IN MANNING THE FACILITIES."  201 MISS.  674, 29 SO.2D 270. 
UNDER SEC. 9314, QUOTED IN NOTE 1, IN THE LIGHT OF THAT STATUTE'S
DEFINITION OF "DOING BUSINESS" SET OUT ON PP. 81-82, SUPRA, THIS IS A
REASONABLE MEANING TO GIVE THE TAXING STATUTE.  WE MUST ACCEPT THE
STATE COURT'S INTERPRETATION.  FN16  WE THEREFORE CONCLUDE THAT THE
MISSISSIPPI TAX HERE INVOLVED IS NOT UPON THE PRIVILEGE OF DOING AN
INTERSTATE BUSINESS. 

SECOND.  WE COME NOW TO THE SECOND QUESTION.  THAT IS WHETHER THE
CHALLENGED EXCISE FOR CARRYING ON WITHIN THE STATE THE AFOREMENTIONED
ACTIVITIES OF MAINTENANCE, REPAIR AND MANNING BY A CORPORATION ENGAGED
SOLELY IN INTERSTATE COMMERCE MAY BE TAXED.  THE ANSWER ON THIS POINT
DEPENDS UPON WHETHER THESE ACTIVITIES ARE SO MUCH A PART OF THE
INTERSTATE BUSINESS AS TO BE UNDER THE PROTECTION OF THE COMMERCE
CLAUSE AS THIS COURT HAS CONSTRUED IT.  FN17  IN THIS CASE THE LOCAL
ACTIVITIES ARE THOSE INVOLVED IN THE MAINTENANCE OF THE PIPE LINE. 
THIS TAX IS NOT AN UNAPPORTIONED TAX ON GROSS RECEIPTS FROM THE
COMMERCE ITSELF.  IT IS MEASURED BY A PROPORTION OF THE CAPITAL
EMPLOYED WITHIN THE STATE.  IT CANNOT BE DUPLICATED IN OTHER STATES. 
COMPARE WESTERN LIVE STOCK V. BUREAU, 303 U.S. 250, 255.  IN OZARK PIPE
LINE V. MONIER, SUPRA, THIS COURT, AT P. 565, SPOKE OF SUCH ACTIVITIES
AS SET OUT BELOW.  FN18  IF IT WAS INTENDED TO SAY THAT SUCH IN-THE
STATE ACTIVITIES AS THERE DESCRIBED COULD NOT BE TAXED, WE DISAGREE
WITH THAT CONCLUSION.  WE ARE INCLINED TO THE VIEW THAT THE FACT THAT
THE TAX THERE UNDER CONSIDERATION WAS CONSIDERED A TAX "UPON THE
PRIVILEGE OR RIGHT TO DO BUSINESS," LED THE COURT TO POINT OUT THAT AS
THE LOCAL ACTIVITIES WERE ESSENTIAL TO THAT BUSINESS, THEY WERE NOT
TAXABLE ACTIVITIES.  THE PIPE LINE ITSELF AND ALL APPURTENANCES ARE
ESSENTIAL, YET AN AD VALOREM TAX CAN BE LAID.  FN19 

IN TAXATION, WE DO NOT HAVE THE PROBLEMS RAISED BY MANY DECISIONS ON
STATE REGULATIONS ALLEGED TO IMPEDE THE FREE FLOW OF COMMERCE WHEN NOT
NATIONALLY UNIFORM.  SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761. 
REGULATIONS MAY BE IMPOSED BY THE STATE ON COMMERCE.  PANHANDLE EASTERN
PIPE LINE CO. V. PUBLIC SERVICE COMM'N, SUPRA; BOB-LO EXCURSION CO. V.
MICHIGAN, 333 U.S. 28.  WHEN STATE TAXATION OF ACTIVITIES OR PROPERTY
WITHIN A STATE IS INVOLVED, DIFFERENT CONSIDERATIONS CONTROL.  IT IS NO
LONGER A QUESTION OF ACTUAL INTERRUPTION OF THE OPERATION OF COMMERCE. 
KELLY V. WASHINGTON, 302 U.S. 1, 14.  RATHER A PROHIBITED TAX EXACTION
IS ONE BEYOND THE POWER OF THE STATE BECAUSE THE TAXABLE EVENT IS
OUTSIDE ITS BOUNDARIES, MCLEOD V. DILWORTH CO., SUPRA, OR FOR A
PRIVILEGE THE STATE CANNOT GRANT.  SEE NOTE 10, SUPRA.  IS IT BAD
BECAUSE A TAX ON THE COMMERCE ITSELF?  WE HAVE SUSTAINED A FEE FOR THE
PRIVILEGE OF USING STATE COURTS, EXACTED BY THE STATE FROM A BUSINESS
LICENSED BY THE UNITED STATES TO HANDLE CUSTOMS CHARGES.  UNION
BROKERAGE CO. V. JENSEN, 322 U.S. 202.  FN20  LIKEWISE A SPECIAL
PRIVILEGE TAX UPON AN INTERSTATE AUTOMOBILE TRANSPORTATION COMPANY FOR
THE USE OF THE STATE ROADS HAS BEEN APPROVED.  AERO MAYFLOWER TRANSIT
CO. V. BOARD OF RAILROAD COMM'RS, 332 U.S. 495. 

THE MISSISSIPPI EXCISE HAS NO MORE EFFECT UPON THE COMMERCE THAN ANY
OF THE INSTANCES JUST RECITED.  THE EVENTS GIVING RISE TO THIS TAX WERE
NO MORE ESSENTIAL TO THE INTERSTATE COMMERCE THAN THOSE JUST MENTIONED
OR AD VALOREM TAXES.  WE THINK THAT THE STATE IS WITHIN ITS
CONSTITUTIONAL RIGHTS IN EXACTING COMPENSATION UNDER THIS STATUTE FOR
THE PROTECTION IT AFFORDS THE ACTIVITIES WITHIN ITS BORDERS.  OF
COURSE, THE INTERSTATE COMMERCE COULD NOT BE CONDUCTED WITHOUT THESE
LOCAL ACTIVITIES.  BUT THAT FACT IS NOT CONCLUSIVE.  THESE ARE EVENTS
APART FROM THE FLOW OF COMMERCE.  THIS IS A TAX ON ACTIVITIES FOR WHICH
THE STATE, NOT THE UNITED STATES, GIVES PROTECTION AND THE STATE IS
ENTITLED TO COMPENSATION WHEN ITS TAX CANNOT BE SAID TO BE AN
UNREASONABLE BURDEN OR A TOLL ON THE INTERSTATE BUSINESS.  AFFIRMED. 

FN1  MISS.  CODE SEC. 9313(1942):  "THERE IS HEREBY IMPOSED  ... A
FRANCHISE OR EXCISE TAX UPON EVERY CORPORATION  ...  NOW EXISTING IN
THIS STATE, OR HEREAFTER ORGANIZED, CREATED OR ESTABLISHED, UNDER AND
BY VIRTUE OF THE LAWS OF THE STATE OF MISSISSIPPI, EQUAL TO $1.50 FOR
EACH $1,000.00 OR FRACTION THEREOF, OF THE VALUE OF THE CAPITAL USED,
INVESTED OR EMPLOYED IN THE EXERCISE OF ANY POWER, PRIVILEGE OR RIGHT
ENJOYED BY SUCH ORGANIZATION WITHIN THIS STATE, EXCEPT AS HEREINAFTER
PROVIDED.  IT BEING THE PURPOSE OF THIS SECTION TO REQUIRE THE PAYMENT
TO THE STATE OF MISSISSIPPI, THIS TAX FOR THE RIGHT GRANTED BY THE LAWS
OF THIS STATE TO EXIST AS SUCH ORGANIZATION, AND ENJOY, UNDER THE
PROTECTION OF THE LAWS OF THIS STATE, THE POWERS, RIGHTS, PRIVILEGES
AND IMMUNITIES DERIVED FROM THE STATE BY THE FORM OF SUCH EXISTENCE." 

SEC. 9314:  "FOR THE YEAR 1940 AND ANNUALLY THEREAFTER, THERE SHALL
BE AND IS HEREBY IMPOSED, LEVIED AND ASSESSED UPON EVERY CORPORATION,
ASSOCIATION OR JOINT STOCK COMPANY, AS HEREINBEFORE DEFINED, ORGANIZED
AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF SOME OTHER STATE,
TERRITORY OR COUNTRY, OR ORGANIZED AND EXISTING WITHOUT ANY SPECIFIC
STATUTORY AUTHORITY, NOW, OR HEREAFTER DOING BUSINESS WITHIN THIS
STATE, AS HEREINBEFORE DEFINED, A FRANCHISE OR EXCISE TAX EQUAL TO
$1.50 OF EACH $1,000.00 OR FRACTION THEREOF OF THE VALUE OF CAPITAL
USED, INVESTED OR EMPLOYED WITHIN THIS STATE, EXCEPT AS HEREINAFTER
PROVIDED.  IT BEING THE PURPOSE OF THIS SECTION TO REQUIRE THE PAYMENT
OF A TAX BY ALL ORGANIZATIONS NOT ORGANIZED UNDER THE LAWS OF THIS
STATE, MEASURED BY THE AMOUNT OF CAPITAL OR ITS EQUIVALENT, FOR WHICH
SUCH ORGANIZATION RECEIVES THE BENEFIT AND PROTECTION OF THE GOVERNMENT
AND LAWS OF THE STATE." 

FN2  MISS.  CODE SEC. 9312(1942). 

FN3  PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408, 429. 

FN4  SUCH LOCAL INCIDENTS FORM A SOUND BASIS FOR TAXATION BY A STATE
OF FOREIGN CORPORATIONS DOING INTERSTATE BUSINESS.  FOR EXAMPLE, WE
HAVE UPHELD STATE TAXES ON SALES AFTER COMPLETION OF THE INTERSTATE
TRANSIT, MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S. 33; ON
PRODUCTION OF ELECTRICITY FOR INTERSTATE COMMERCE, UTAH POWER & L. CO.
V. PFOST, 286 U.S. 165, COMPARE FISHER'S BLEND STATION, INC. V. TAX
COMM'N, 297 U.S. 650, 655; A PRIVILEGE TAX ON THE OPERATION OF MACHINES
FOR THE PRODUCTION OF ELECTRICITY TO DRIVE GAS IN INTERSTATE COMMERCE,
COVERDALE V. ARKANSAS-LOUISIANA PIPE LINE CO., 303 U.S. 604; A USE TAX
ON RAILS SHIPPED INTERSTATE FOR IMMEDIATE INCORPORATION INTO AN
INTERSTATE TRANSPORTATION SYSTEM, SOUTHERN PACIFIC CO. V. GALLAGHER,
306 U.S. 167. 

WE HAVE UPHELD A FRANCHISE TAX ON A FOREIGN CORPORATION AUTHORIZED TO
DO BUSINESS AND MAKING SALES IN A STATE OTHER THAN ITS ACTUAL OR
BUSINESS DOMICILE, FORD MOTOR CO. V. BEAUCHAMP, 308 U.S. 331; A
PRIVILEGE TAX ON A FOREIGN CORPORATION DOING BUSINESS IN THE STATE UPON
A PROPORTION OF PROPERTY IN THE TAXING STATE THAT WAS COMPUTED BY USING
INTERSTATE COMMERCE AS AN ELEMENT, HUMP HAIRPIN CO. V. EMMERSON, 258
U.S. 290; WESTERN CARTRIDGE CO. V. EMMERSON, 281 U.S. 511; AN EXCISE ON
INTRASTATE MANUFACTURING, ADDED TO AN AD VALOREM TAX AND MEASURED BY
SALES, INCLUDING OUT OF STATE, AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S.
459, AND SEE POWELL, 60 HARV. L. REV. 501, 508 AND 727, FREEMAN V.
HEWIT, 329 U.S. 249, 255; A LICENSE FOR STORING GOODS AT REST IN THE
STATE UNDER A TRANSIT PRIVILEGE, INDEPENDENT WAREHOUSES, INC. V.
SCHEELE, 331 U.S. 70. 

FN5  SEE WESTERN LIVE STOCK V. BUREAU, 303 U.S. 250, 254. 

FN6  SEE WESTERN LIVE STOCK V. BUREAU, 303 U.S. 250, 255. 

FN7  SEE BEST & CO. V. MAXWELL, 311 U.S. 454; NIPPERT V. CITY OF
RICHMOND, SUPRA, AT 431-32.  CF. AERO MAYFLOWER TRANSIT CO. V. BOARD OF
RAILROAD COMM'RS, 332 U.S. 495, 501-502. 

FN8  SEE HUMP HAIRPIN CO. V. EMMERSON, 258 U.S. 290, 295, AND WESTERN
CARTRIDGE CO. V. EMMERSON, 281 U.S. 511, 514. 

FN9  SEE SOUTHERN GAS CORP. V. ALABAMA, 301 U.S. 148, 156, THIRD, AND
CASES CITED; INTERNATIONAL HARVESTER CO. V. EVATT, 329 U.S. 416, 422
23; AERO MAYFLOWER TRANSIT CO. V. BOARD OF RAILROAD COMM'RS, 332 U.S.
495, 501-502. 

FN10  THIS COURT HAS HELD MANY TIMES THAT A STATE HAS NO POWER TO
REFUSE OR TAX THE PRIVILEGE OF DOING INTERSTATE BUSINESS.  A FOREIGN
CORPORATION, SEEKING OR REQUIRING NO PRIVILEGE FROM A STATE SUCH AS THE
POWER OF EMINENT DOMAIN, THE RIGHT TO USE PUBLIC WAYS OR BEDS OF
STREAMS, AND WITHOUT FEDERAL CHARTER OR OTHER FEDERAL STATUTORY
PRIVILEGE, CANNOT BE DENIED THE RIGHT TO ENTER A STATE, REMAIN THERE
AND OPERATE A PURELY INTERSTATE BUSINESS WITHOUT A STATE FRANCHISE. 
CRUTCHER V. KENTUCKY, 141 U.S. 47, 56; INTERNATIONAL TEXTBOOK CO. V.
PIGG, 217 U.S. 91, 107(3); DAHNKE-WALKER MILLING CO. V. BONDURANT, 257
U.S. 282.  SEE ALSO CALIFORNIA V. PACIFIC R. CO., 127 U.S. 1; LUXTON V.
NORTH RIVER BRIDGE CO., 153 U.S. 525; COLORADO V. UNITED STATES, 271
U.S. 153, 164; STATE EX REL. BOARD V. STANOLIND PIPE LINE CO., 216 IOWA
436, 445, 249 N.W. 366, 371. 

FN11  FREEMAN V. HEWIT, 329 U.S. 249, "BECAUSE IT TAXES THE VERY
PROCESS OF INTERSTATE COMMERCE" (P. 253), IT IS "A DIRECT IMPOSITION ON
THAT VERY FREEDOM OF COMMERCIAL FLOW WHICH FOR MORE THAN A HUNDRED AND
FIFTY YEARS HAS BEEN THE WARD OF THE COMMERCE CLAUSE" (P. 256); JOSEPH
V. CARTER & WEEKES CO., 330 U.S. 422, "STEVEDORING, WE CONCLUDE, IS
ESSENTIALLY A PART OF THE COMMERCE ITSELF AND THEREFORE A TAX  ...
UPON THE PRIVILEGE OF CONDUCTING THE BUSINESS OF STEVEDORING FOR
INTERSTATE AND FOREIGN COMMERCE, MEASURED BY THOSE GROSS RECEIPTS, IS
INVALID" (P. 433); THIS FOLLOWS "A LINE OF PRECEDENTS OUTLAWING TAXES
ON THE COMMERCE ITSELF" (P. 433).  GALVESTON, HARRISBURG & S.A.R. CO.
V. TEXAS, SUPRA AT 224. 

SEE ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 312, N. 11; SEE COMMENTS
ON AMERICAN MFG. CO. V. ST. LOUIS, N. 4, SUPRA. 

FN12  MO. REV. STAT. SEC. 9836(1919): 

"  ...  EVERY CORPORATION, NOT ORGANIZED UNDER THE LAWS OF THIS
STATE, AND ENGAGED IN BUSINESS IN THIS STATE, SHALL PAY AN ANNUAL
FRANCHISE TAX TO THE STATE OF MISSOURI EQUAL TO ONE-TENTH OF ONE PER
CENT. OF THE PAR VALUE OF ITS CAPITAL STOCK AND SURPLUS EMPLOYED IN
BUSINESS IN THIS STATE ...  " 

FN13  THE OPINION EVOKED A DISSENT BY JUSTICE BRANDEIS WHICH POINTED
OUT THAT:  "THE TAX ASSAILED IS NOT LAID UPON THE OCCUPATION  ...  ";
NOR "UPON THE PRIVILEGE OF DOING BUSINESS."  PP. 567-68.  THE JUSTICE
CONCLUDED THAT "A TAX IS NOT A DIRECT BURDEN MERELY BECAUSE IT IS LAID
UPON AN INDISPENSABLE INSTRUMENTALITY OF SUCH COMMERCE," BUT THAT THE
CONTRARY IS TRUE "WHERE IT IS UPON PROPERTY MOVING IN INTERSTATE
COMMERCE."  P. 569.  COMPARE OZARK WITH ATLANTIC LUMBER CO. V. COMM'R,
298 U.S. 553.    THE OZARK CASE HAS HAD A LONG HISTORY IN THIS COURT. 
SINCE 288 U.S., IT HAS NOT BEEN CITED IN A MANNER PERTINENT TO OUR
PRESENT ISSUE, EXCEPT TO BE DISTINGUISHED, SOMETIMES NARROWLY.  IN
HELSON & RANDOLPH V. KENTUCKY, 279 U.S. 245, 249, AND STATE TAX
COMMISSION V. INTERSTATE NATURAL GAS CO., 284 U.S. 41, 43, IT WAS CITED
WITH APPROVAL FOR THE PROPOSITION THAT A STATE CANNOT LAY A TAX ON THE
OCCUPATION OR THE BUSINESS OF CARRYING ON INTERSTATE COMMERCE.  IN
ANGLO-CHILEAN NITRATE SALES CORP. V. ALABAMA, 288 U.S. 218, OZARK WAS
RELIED UPON TO HOLD UNCONSTITUTIONAL A STATE TAX UPON A CORPORATION
WHICH WAS QUALIFIED TO DO INTRASTATE BUSINESS WITHIN THE STATE BUT
WHICH IN FACT DID ONLY AN INTERSTATE BUSINESS.  CARDOZO, J., JOINED BY
BRANDEIS, J., AND STONE, J., DISSENTED ON THE GROUND THAT THE TAX COULD
BE SUPPORTED AS A TAX LAID UPON THE PRIVILEGE TO DO INTRASTATE
BUSINESS.  OZARK WAS NEXT BEFORE THE COURT IN VIRGINIA V. IMPERIAL COAL
CO., SUPRA, A CASE INVOLVING A TAX ON TANGIBLE AND INTANGIBLE PROPERTY
SITUATED AND USED WITHIN THE STATE TO CARRY ON AN EXCLUSIVELY
INTERSTATE BUSINESS.  IN THAT CASE IT WAS DISTINGUISHED ON THE GROUND
THAT AN AD VALOREM PROPERTY TAX, AND NOT A PRIVILEGE TAX, WAS BEFORE
THE COURT.  IN ATLANTIC LUMBER CO. V. COMM'R, 298 U.S. 553, INVOLVING
AN EXCISE TAX ON CORPORATIONS DOING BUSINESS WITHIN MASSACHUSETTS,
OZARK WAS AGAIN DISTINGUISHED, THIS TIME ON THE GROUND THAT THE LUMBER
CO. WAS ENGAGED IN LOCAL ACTIVITIES WITHIN THE STATE AND, THEREFORE,
THAT THE BURDEN IMPOSED UPON ITS INTERSTATE COMMERCE WAS REMOTE AND
INCIDENTAL.  AGAIN, IN SOUTHERN GAS CORP. V. ALABAMA, 301 U.S. 148,
OZARK WAS FOUND TO BE INAPPOSITE BECAUSE OF FACTUAL DIFFERENCES. 
SOUTHERN GAS RULED UPON THE CONSTITUTIONALITY OF A TAX ASSESSED ON THE
BASIS OF THE SAME TAX THAT WAS BEFORE THIS COURT IN ANGLO-CHILEAN
NITRATE SALES CORP. V. ALABAMA, SUPRA.  THE STATE TAX WAS HELD
CONSTITUTIONAL BY THE SOUTHERN GAS CASE AS A TAX EXACTED FOR THE
PRIVILEGE OF DOING AN INTRASTATE BUSINESS BY A COMPANY IN FACT ENGAGING
IN INTRASTATE BUSINESS IN ALABAMA. 

FN14  MISS.  GEN.  LAWS (1930), C. 88, SEC. 3:  "EVERY PERSON
DESIRING TO ENGAGE IN ANY BUSINESS, OR EXERCISE ANY PRIVILEGE
HEREINAFTER SPECIFIED, SHALL FIRST, BEFORE COMMENCING SAME, APPLY FOR,
PAY FOR, AND PROCURE FROM THE PROPER OFFICER A PRIVILEGE LICENSE
AUTHORIZING HIM TO ENGAGE IN THE BUSINESS, OR EXERCISE THE PRIVILEGE
SPECIFIED THEREIN; AND THE AMOUNT OF TAX SHOWN IN THE FOLLOWING
SCHEDULES IS HEREBY IMPOSED FOR THE PRIVILEGE OF ENGAGING AND/OR
CONTINUING IN THE BUSINESSES SET OUT THEREIN." 

ID., SEC. 163:  "UPON EACH PERSON ENGAGING AND/OR CONTINUING IN THIS
STATE IN THE BUSINESS OF OPERATING A PIPE LINE OR TRANSPORTING IN OR
THROUGH THIS STATE OIL, OR NATURAL, OR ARTIFICIAL GAS, THROUGH PIPES,
AND/OR CONDUITS, A TAX, AS FOLLOWS:  (ON EACH MILE A VARYING TAX THAT
DEPENDED UPON THE DIAMETER OF THE PIPE)." 

FN15  THE SAME RATIONALE HAS LED THIS COURT AT TIMES TO DECLARE
INVALID SIMILAR TAXES ON FOREIGN CORPORATIONS, ADMITTED TO DO BUSINESS
IN A STATE AND DOING ONLY AN INTERSTATE BUSINESS THROUGH ACTIVITIES
WITHIN THE STATE.  THE LEADING DECISIONS SUPPORTING THIS VIEW (CHENEY
BROTHERS CO. V. MASSACHUSETTS, 246 U.S. 147, AND ALPHA PORTLAND CEMENT
CO. V. MASSACHUSETTS, 268 U.S. 203) HAVE BEEN STRICTLY LIMITED. 
ATLANTIC LUMBER CO. V. COMMISSIONER, 298 U.S. 553; CF. SOUTHERN GAS
CORPORATION V. ALABAMA, SUPRA, AT P. 156, AND DISSENT IN ANGLO-CHILEAN
NITRATE SALES CORP. V. ALABAMA, 288 U.S. 218, 229, AT 237.  IN THE
CHENEY CASE AN EXCISE TAX FOR THE PRIVILEGE OF DOING BUSINESS IN
MASSACHUSETTS OF AN UNAPPORTIONED PERCENTAGE OF ITS AUTHORIZED CAPITAL
STOCK (MASS. ACTS, 1909, C. 490, PART III, SEC. 56) WAS INVALIDATED AS
BEING WHOLLY ON INTERSTATE COMMERCE ALTHOUGH IT MAINTAINED "IN BOSTON A
SELLING OFFICE WITH ONE OFFICE SALESMAN AND FOUR OTHER SALESMEN WHO
TRAVEL THROUGH NEW ENGLAND.  THE SALESMEN SOLICIT AND TAKE ORDERS,
SUBJECT TO APPROVAL BY THE HOME OFFICE IN CONNECTICUT, AND IT SHIPS
DIRECTLY TO THE PURCHASERS.  NO STOCK OF GOODS IS KEPT IN THE BOSTON
OFFICE, BUT ONLY SAMPLES USED IN SOLICITING AND TAKING ORDERS.  COPIES
AND RECORDS OF ORDERS ARE RETAINED, BUT NO BOOKKEEPING IS DONE, AND THE
OFFICE MAKES NO COLLECTIONS.  THE SALESMEN AND THE OFFICE RENT ARE PAID
DIRECTLY FROM CONNECTICUT AND THE OTHER EXPENSES OF THE OFFICE ARE PAID
FROM A SMALL DEPOSIT KEPT IN BOSTON FOR THE PURPOSE.  NO OTHER BUSINESS
IS DONE IN THE STATE."  P. 153. 

IN THE ALPHA PORTLAND CASE WHERE, ON THE ASSUMPTION THAT THE TAXPAYER
HAD OBTAINED A RIGHT TO DO BUSINESS IN THE STATE, UNDER SIMILAR
CIRCUMSTANCES AN UNAPPORTIONED EXCISE ON THE PRIVILEGE TO DO BUSINESS
IN MASSACHUSETTS WAS INVALIDATED BECAUSE A BURDEN ON COMMERCE. 

FN16  ST. LOUIS S.W.R. CO. V. ARKANSAS, 235 U.S. 350, 362; SOUTHERN
GAS CORP. V. ALABAMA, SUPRA AT 153, FIRST; SKIRIOTES V. FLORIDA, 313
U.S. 69, 79; CALDAROLA V. ECKERT, 332 U.S. 155, 158. 

FN17  SEE NOTE 11, SUPRA. 

FN18  THIS COURT SAID, 266 U.S. AT 565:  "THE BUSINESS ACTUALLY
CARRIED ON BY APPELLANT WAS EXCLUSIVELY IN INTERSTATE COMMERCE.  THE
MAINTENANCE OF AN OFFICE, THE PURCHASE OF SUPPLIES, EMPLOYMENT OF
LABOR, MAINTENANCE AND OPERATION OF TELEPHONE AND TELEGRAPH LINES AND
AUTOMOBILES, AND APPELLANT'S OTHER ACTS WITHIN THE STATE, WERE ALL
EXCLUSIVELY IN FURTHERANCE OF ITS INTERSTATE BUSINESS; AND THE PROPERTY
ITSELF, HOWEVER EXTENSIVE OR OF WHATEVER CHARACTER, WAS LIKEWISE
DEVOTED ONLY TO THAT END.  THEY WERE THE MEANS AND INSTRUMENTALITIES BY
WHICH THAT BUSINESS WAS DONE AND IN NO PROPER SENSE CONSTITUTED, OR
CONTRIBUTED TO, THE DOING OF A LOCAL BUSINESS."  SEE ALSO HEYMAN V.
HAYS, 236 U.S. 178, 185. 

FN19  CLEVELAND, C., C. & ST. L.R. CO. V. BACKUS, 154 U.S. 439, 445: 

"THE RULE OF PROPERTY TAXATION IS THAT THE VALUE OF THE PROPERTY IS
THE BASIS OF TAXATION.  IT DOES NOT MEAN A TAX UPON THE EARNINGS WHICH
THE PROPERTY MAKES, NOR FOR THE PRIVILEGE OF USING THE PROPERTY, BUT
RESTS SOLELY UPON THE VALUE.  BUT THE VALUE OF PROPERTY RESULTS FROM
THE USE TO WHICH IT IS PUT AND VARIES WITH THE PROFITABLENESS OF THAT
USE, PRESENT AND PROSPECTIVE, ACTUAL AND ANTICIPATED.  THERE IS NO
PECUNIARY VALUE OUTSIDE OF THAT WHICH RESULTS FROM SUCH USE.  THE
AMOUNT AND PROFITABLE CHARACTER OF SUCH USE DETERMINES THE VALUE, AND
IF PROPERTY IS TAXED AT ITS ACTUAL CASH VALUE IT IS TAXED UPON
SOMETHING WHICH IS CREATED BY THE USES TO WHICH IT IS PUT."  SEE ALSO
NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292; ADAMS EXPRESS CO. V.
OHIO, 165 U.S. 194; WESTERN UNION TEL. CO. V. MASSACHUSETTS, 125 U.S.
530. 

FN20  IN THE UNION BROKERAGE CASE WE DEALT NOT WITH AN ANNUAL TAX ON
FRANCHISES OR LICENSES BUT WITH A STATE'S SINGLE EXACTION FROM A
FOREIGN CORPORATION FOR THE RIGHT TO USE THE COURTS OF THE STATE.  THE
COMPANY WAS A CUSTOMHOUSE BROKER ENGAGED WHOLLY IN THUS EARNING FEES BY
"'CHARGES UPON THE COMMERCE ITSELF,'" P. 209.  THERE WERE INCIDENTAL
ACTIVITIES IN THE STATE IN FURTHERANCE OF THIS MAIN PURPOSE, P. 208:
"UNION'S BUSINESS IS LOCALIZED IN MINNESOTA, IT BUYS MATERIALS AND
SERVICES FROM PEOPLE IN THAT STATE, IT ENTERS INTO BUSINESS
RELATIONSHIPS, AS THIS CASE, A SUIT AGAINST ITS FORMER PRESIDENT,
ILLUSTRATES, WHOLLY OUTSIDE OF THE ARRANGEMENTS IT MAKES WITH IMPORTERS
OR EXPORTERS." 

MR. JUSTICE BLACK CONCURS IN THE JUDGMENT. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

IN ACCORDANCE WITH VIEWS WHICH I HAVE HERETOFORE EXPRESSED N1, IT IS
ENOUGH FOR ME TO SUSTAIN THE TAX IMPOSED IN THIS CASE THAT IT IS ONE
CLEARLY WITHIN THE STATE'S POWER TO LAY INSOFAR AS ANY LIMITATION OF
DUE PROCESS OR "JURISDICTION TO TAX" IN THAT SENSE IS CONCERNED; FN2
IT IS NONDISCRIMINATORY, THAT IS, PLACES NO GREATER BURDEN UPON
INTERSTATE COMMERCE THAN THE STATE PLACES UPON COMPETING INTRASTATE
COMMERCE OF LIKE CHARACTER; FN3  IS DULY APPORTIONED, THAT IS, DOES NOT
UNDERTAKE TO TAX ANY INTERSTATE ACTIVITIES CARRIED ON OUTSIDE THE
STATE'S BORDERS; FN4 AND CANNOT BE REPEATED BY ANY OTHER STATE.  FN5 

IN THIS VIEW THE TAX IS NOT DIFFERENT IN ANY SUBSTANTIAL RESPECT, FOR
PURPOSES OF THE COMMERCE CLAUSE'S PROHIBITIVE APPLICATION, FROM THE
APPORTIONED TAX UPON GROSS RECEIPTS FROM INTERSTATE TRANSPORTATION
LEVIED BY NEW YORK AND SUSTAINED BY THE DECISION RECENTLY RENDERED IN
CENTRAL GREYHOUND LINES V. MEALEY, 334 U.S. 653.  FN6  THAT TAX IS
NONETHELESS ONE UPON THE COMMERCE, ALTHOUGH IT IS APPORTIONED.  THE
APPORTIONMENT, HOWEVER, GUARDS IT FROM THE VICE OF TAXING COMMERCE DONE
IN OTHER STATES AND THUS ALSO FROM MULTIPLICATION BY THEM.  FN7  IN MY
VIEW THE SAME CONSEQUENCE FOLLOWS HERE, IN PRACTICAL EFFECT, BOTH FOR
THE BEARING OF THE TAX AND FOR SAVING ITS VALIDITY. 

IT MAY BE THAT FOR THE PURPOSES OF THIS CASE THERE IS LITTLE MORE
THAN A VERBAL DIFFERENCE IN SO REGARDING THE TAX AND IN LOOKING AT IT
AS ONE NOT "UPON" THE COMMERCE, ALTHOUGH AFFECTING IT, BUT AS BEING
LAID UPON "INCIDENTS OF THE COMMERCE" OR "TAXABLE EVENTS" TAKING PLACE
IN MISSISSIPPI WHICH ARE REGARDED AS BEING "SUFFICIENTLY SEPARATE FROM"
THE COMMERCE, WHETHER BY REASON OF THE APPORTIONMENT OR OTHERWISE, TO
SUSTAIN THE TAX.  TO THE EXTENT THAT NO GREATER DIFFERENCE IS PRESENTLY
INVOLVED, I ACCEPT THE COURT'S CONCLUSIONS AND ITS REASONING. 

BUT THE DIFFERENCE CONCEIVABLY MAY BE OF LARGE, INDEED OF
CONTROLLING, IMPORTANCE FOR OTHER CASES.  AND, SO FAR AS THIS MAY BE
TRUE, I AM UNABLE TO REVERT TO RATIONALIZATIONS WHICH MAKE MERELY
VERBAL FORMULAE WITHOUT REFLECTION OF DIFFERENCES IN SUBSTANTIVE
EFFECTS CONTROLLING IN THESE MATTERS. 

THE NEW YORK LEGS OF THE JOURNEY INVOLVED IN THE CENTRAL GREYHOUND
CASE, SUPRA, ARE INTERSTATE COMMERCE, AS MUCH AS THOSE IN NEW JERSEY
AND PENNSYLVANIA.  THEY DO NOT LOSE THAT CHARACTER MERELY BECAUSE AN
APPORTIONED TAX MAY BE LEVIED UPON THE GROSS RECEIPTS FROM THEM.  THE
INCIDENCE OF THAT TAX IS FLATLY ON THE COMMERCE, THOUGH ONLY ON THE
LOCAL PORTION OF IT.  SO HERE I DO NOT THINK THAT THE LOCAL ACTIVITIES
FOR THE PROTECTION OF WHICH THE MISSISSIPPI TAX PURPORTS IN TERMS TO BE
LAID BECOME SEPARATE FROM THE INTERSTATE BUSINESS WHICH PETITIONER
CONDUCTS IN MISSISSIPPI, EITHER BY REASON OF THE APPORTIONMENT OR
OTHERWISE.  BUT THEY ARE INCIDENTS OF CARRYING ON THAT BUSINESS TAKING
PLACE IN MISSISSIPPI AND ONLY THERE, FOR WHICH MISSISSIPPI AFFORDS
PROTECTION RECEIVED FROM NO OTHER STATE OR THE UNITED STATES.  NOR CAN
ANY OTHER STATE GIVE THAT PROTECTION.  FOR THAT PORTION OF THE BUSINESS
AND THE PROTECTION GIVEN IT, I THINK THE STATE IS ENTITLED TO LEVY SUCH
A TAX AS HAS BEEN PLACED HERE.  NOTHING IN THE COMMERCE CLAUSE OR ITS
GREAT PURPOSES FORBIDS SUCH AN EXACTION.  NOR IS THE STATE LIMITED TO A
SINGLE EXACTION FOR DIFFERENT OR INDEED LIKE PROTECTIONS AFFORDED, SO
LONG AS EACH IS SAFEGUARDED AGAINST PROHIBITED EFFECTS UPON COMMERCE,
AS ARE THOSE LAID BY MISSISSIPPI, AND THEIR AGGREGATE CANNOT BE SHOWN
TO CONTRAVENE THE CLAUSE'S PURPOSE. 

ACCORDINGLY, I CONCUR IN THE COURT'S JUDGMENT. 

FN1  SEE MCLEOD V. DILWORTH CO., 322 U.S. 327; GENERAL TRADING CO. V.
TAX COMM'N, ID. 335; HARVESTER CO. V. DEPT. OF TREASURY, ID. 340,
SEPARATE OPINION, ID. 349; FREEMAN V. HEWIT, 329 U.S. 249, CONCURRING
OPINION AT 259. 

FN2  SEE 322 U.S. AT 352, 353; NIPPERT V. RICHMOND, 327 U.S. 416,
423, 424. 

FN3  SEE MISS.  CODE SEC. 9313(1942), IMPOSING A COMPARABLE TAX, OF
IDENTICAL AMOUNT, UPON COMPANIES ORGANIZED UNDER MISSISSIPPI LAWS. 
INTRASTATE BUSINESS DONE IN THE STATE OBVIOUSLY WOULD BE SUBJECT TO ONE
TAX OR THE OTHER, DEPENDING ON WHETHER THE COMPANY DOING IT WERE
ORGANIZED UNDER THE STATE'S LAWS OR THOSE OF ANOTHER STATE. 

FN4  THE STATUTE, MISS.  CODE SECS. 9313 AND 9314(1942), EXPRESSLY
MEASURES AND LIMITS THE TAX BY AN AMOUNT "EQUAL TO $1.50 OF EACH
$1,000.00 OR FRACTION THEREOF OF THE VALUE OF CAPITAL USED, INVESTED OR
EMPLOYED WITHIN THIS STATE  ..." 

FN5  CF. NOTE 4.  APPORTIONMENT IN ITSELF PREVENTS TAXATION OF
EXTRASTATE "EVENTS" OR PORTIONS OF THE BUSINESS DONE, UNLESS THE
APPORTIONMENT IS ITSELF CONSTITUTIONALLY INVALID AS NOT REFLECTING A
SUFFICIENT APPROXIMATION TO WHAT THE STATE MAY BE ENTITLED, ON THE
FACTS, TO TAX.  CF. STONE, C. J., DISSENTING IN NORTHWEST AIRLINES V.
MINNESOTA, 322 U.S. 292, 315-316, AND AUTHORITIES CITED. 

FN6  IT IS, OF COURSE, FOR NEW YORK TO SAY WHETHER ITS TAX WILL BE
APPLIED UPON THE APPORTIONED BASIS PERMITTED BY THE COURT'S OPINION. 
THERE WOULD SEEM TO BE LITTLE DOUBT THAT SUCH AN APPLICATION WILL BE
MADE, IN VIEW OF THE STATE'S ALTERNATIVE ARGUMENT HERE FOR SUSTAINING
THE TAX TO THAT EXTENT IN THE EVENT ITS UNAPPORTIONED APPLICATION
SHOULD BE FOUND INVALID. 

FN7  SEE FREEMAN V. HEWIT, 329 U.S. 249, 266(CONCURRING OPINION) AND
AUTHORITIES CITED. 

THAT THE APPORTIONMENT IN THE ONE CASE IS MADE IN RELATION TO MILEAGE
AND IN THE OTHER TO THE VALUE OF CAPITAL "USED, INVESTED OR EMPLOYED
WITHIN THIS STATE" IS OF NO SIGNIFICANCE, SINCE THE STATES HAVE
CONSIDERABLE LATITUDE IN THE SELECTION OF FAIR METHODS OF MAKING
APPORTIONMENT.  CF. NOTE 5. 

MR. JUSTICE FRANKFURTER, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE
JACKSON, AND MR. JUSTICE BURTON CONCUR, DISSENTING. 

THIS LITIGATION BEGAN BEFORE THE STATE TAX COMMISSION OF MISSISSIPPI
BY A PETITION OF THE MEMPHIS NATURAL GAS COMPANY FOR A REVISION OF THE
FRANCHISE TAX ASSESSED AGAINST THAT COMPANY UNDER THE FRANCHISE TAX LAW
OF MISSISSIPPI.  ON JUDICIAL REVIEW OF THIS ADMINISTRATIVE DENIAL, THE
PARTIES STIPULATED THAT "ALL OF THE FACTS STATED IN SAID PETITION ARE
TRUE AND NO PROOF OF THE SAME SHALL BE REQUIRED IN THIS CAUSE."  FN1
THE DECISION THEREFORE MUST BE BASED ON THE UNDISPUTED ALLEGATIONS OF
THE PETITION. 

PETITIONER, A DELAWARE CORPORATION, OWNS AND OPERATES A PIPELINE FOR
THE TRANSPORTATION OF NATURAL GAS RUNNING FROM THE GAS FIELDS IN
LOUISIANA THROUGH ARKANSAS AND MISSISSIPPI INTO TENNESSEE.  PETITIONER
HAS CONDUCTED NO INTRASTATE BUSINESS WITHIN MISSISSIPPI, NOR IS IT
QUALIFIED TO DO SO.  THE COMPANY PAID MISSISSIPPI AN INCOME TAX "UPON
THAT PART OF ITS NET INCOME FAIRLY ATTRIBUTABLE TO ACTIVITIES IN
MISSISSIPPI."  IT ALSO PAYS AD VALOREM TAXES TO THE SIX COUNTIES
THROUGH WHICH THE MISSISSIPPI PORTION OF ITS INTERSTATE PIPELINE - SOME
135 MILES - RUNS.  THE COUNTIES ARE:  WASHINGTON, BOLIVAR, SUNFLOWER,
COAHOMA, TUNICA, AND DE SOTO.  IT ALSO PAYS AD VALOREM PROPERTY TAXES
TO THE CITIES OF GREENVILLE (WASHINGTON), INDIANOLA (SUNFLOWER), AND
CLARKSDALE (COAHOMA).  IN ADDITION TO THESE INCOME AND LOCAL AD VALOREM
PROPERTY TAXES, NOT HERE QUESTIONED, THE STATE TAX COMMISSION ASSESSED
THE FRANCHISE TAX IN CONTROVERSY.  THIS WAS DONE UNDER AN ENACTMENT OF
1940, WHICH IMPOSED ON ALL FOREIGN CORPORATIONS "DOING BUSINESS WITHIN
THIS STATE"  FN2  A "FRANCHISE OR EXCISE TAX EQUAL TO $1.50 OF EACH
$1,000.00 OR FRACTION THEREOF OF CAPITAL USED, INVESTED OR EMPLOYED
WITHIN THIS STATE  ...  "  CH. 115 OF THE 1940 GENERAL LAWS OF
MISSISSIPPI SEC. 2; MISS.  CODE SEC. 9314(1942).  THE RECORD IS BARREN
OF ANY INDICATION THAT "THE TAXING POWER EXERTED BY THE STATE BEARS
FISCAL RELATION TO PROTECTION, OPPORTUNITIES AND BENEFITS GIVEN BY THE
STATE," WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 444, OTHER THAN
THOSE FOR WHICH THE STATE, THROUGH ITS SUBORDINATE TAXING AUTHORITIES,
HAS ALREADY MADE EXACTION, AS CONTRASTED WITH THOSE WHICH ARE GIVEN NOT
BY THE STATE BUT BY THE UNITED STATES AND FOR WHICH THE STATE MAY NOT
MAKE EXACTION.  CRUTCHER V. KENTUCKY, 141 U.S. 47.  THE RECORD NOT ONLY
MAKES NO SUCH AFFIRMATIVE SHOWING; IT DENIES THE FOUNDATION FOR
SUGGESTING THAT THE STATE HAS GIVEN SOMETHING FOR WHICH IT CAN EXACT A
RETURN.  FOR IT WAS STIPULATED BETWEEN THE COMPANY AND THE STATE TAX
COMMISSION THAT 

"YOUR PETITIONER OBTAINS NO PROTECTION FROM THE STATE OF MISSISSIPPI
AND ACQUIRES NO POWERS OR PRIVILEGES IN ITS INTERSTATE ACTIVITY OTHER
THAN THE PROTECTION AFFORDED YOUR PETITIONER BY VIRTUE OF THE PAYMENT
OF AN AD VALOREM TAX ON THE PROPERTY USED BY THE COMPANY WHOLLY IN
INTERSTATE COMMERCE."  FN3 

EVEN ASSUMING THEREFORE THAT, WHILE MISSISSIPPI CANNOT IMPOSE A TAX
FOR THE PRIVILEGE OF DOING AN EXCLUSIVELY INTERSTATE BUSINESS WITHIN
THE STATE, IT CAN CAST AN AD VALOREM PROPERTY TAX ON THE MISSISSIPPI
PORTION OF THE CORPUS OF ITS INTERSTATE PROPERTY IN A FORM HAVING ALL
THE EARMARKS OF A FRANCHISE TAX, THE ASSESSMENT HERE CHALLENGED ON THE
RECORD BEFORE US CANNOT STAND.  AND FOR A VERY SIMPLE REASON. 

THERE WOULD HARDLY BE DISAGREEMENT, I TAKE IT, THAT ALABAMA COULD NOT
CONSTITUTIONALLY IMPOSE AN AD VALOREM TAX ON THESE 135 MILES OF
PIPELINE IN MISSISSIPPI.  THIS IS SO NOT BECAUSE THE PIPELINE DOES NOT
TRAVERSE ALABAMA - CONCEDEDLY THE ASSAILED TAX CANNOT BE SUSTAINED
MERELY BECAUSE THE PIPELINE TRAVELS THROUGH MISSISSIPPI - BUT BECAUSE
ALABAMA AFFORDS NOTHING TO THIS PETITIONER FOR WHICH IT COULD ASK
RECOMPENSE BY WAY OF A TAX.  WE CANNOT KNOW, UNLESS WE ARE INSTRUCTED,
HOW GOVERNMENTAL POWERS ARE DISTRIBUTED IN MISSISSIPPI AS BETWEEN ITS
STATE AND LOCAL GOVERNMENTS.  AND THE PETITIONER HAS NO PROOF OF ITS
ALLEGATIONS THAT THE NINE COUNTY AND CITY TAXING AUTHORITIES TO WHICH
THE PETITIONER PAYS APPROXIMATELY $85,000 A YEAR IN AD VALOREM TAXES
SUPPLY ALL THE BENEFITS WHICH IT ENJOYS FROM THE STATE AND THAT THE
STATE IN SEEKING TO ENFORCE THE FRANCHISE TAX AGAINST THE PETITIONER IS
ASKING SOMETHING (APPROXIMATELY $3,500 A YEAR) FOR NOTHING.  BUT "NO
PROOF OF THE SAME SHALL BE REQUIRED IN THIS CAUSE," ACCORDING TO THE
STIPULATION BETWEEN THE PARTIES, TO WHICH THE STATE TAX COMMISSION HAS
SET ITS NAME.  SEE H. HACKFELD & CO. V. UNITED STATES, 197 U.S. 442,
446.  IN HOLDING THAT MISSISSIPPI IS "EXACTING COMPENSATION UNDER THIS
STATUTE FOR THE PROTECTION IT AFFORDS THE ACTIVITIES WITHIN ITS
BORDERS" TO THIS PETITIONER THE COURT IS FLYING IN THE FACE OF THE
RECORD.  ON THE BASIS OF THAT RECORD MISSISSIPPI CAN NO MORE EXACT THIS
TAX AGAINST THIS PIPELINE THAN COULD ALABAMA.  FOR WE ARE ALL AGREED
THAT WHERE THE ONLY "LOCAL INCIDENT" IS THE FACT OF INTERSTATE COMMERCE
- THAT THE INTERSTATE PIPELINE GOES THROUGH MISSISSIPPI - THE TAX IS
NECESSARILY A TAX UPON THE PRIVILEGE OF DOING INTERSTATE BUSINESS.  THE
COMMERCE CLAUSE PUT AN END TO THE POWER OF THE STATES TO CHARGE FOR
THAT PRIVILEGE. 

BUT IT IS SUGGESTED THAT WE ARE BARRED FROM REACHING THIS CONCLUSION,
THOUGH THE RECORD COMPELS IT, BECAUSE IT DEALS WITH AN ISSUE NOT BEFORE
US.  LET US SEE.  THE PETITION FOR CERTIORARI PRESENTED THIS QUESTION: 

"ADMITTEDLY PETITIONER IS ENGAGED IN MISSISSIPPI SOLELY IN INTERSTATE
COMMERCE.  IT PAYS TO MISSISSIPPI AD VALOREM AND INCOME TAXES AND THUS
CONTRIBUTES MATERIALLY TO THE COST OF LOCAL GOVERNMENT.  AN
UNDOMESTICATED FOREIGN CORPORATION HAS THE RIGHT TO ENGAGE IN
MISSISSIPPI IN INTERSTATE COMMERCE WITHOUT PAYING FOR THE PRIVILEGE AS
THE PRIVILEGE FLOWS FROM THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION AND MAY NOT BE DIRECTLY BURDENED BY THE IMPOSITION OF A
LOCAL 'FRANCHISE OR EXCISE TAX.'" 

BY THIS STATEMENT THE PETITIONER CLEARLY ASSERTED THAT INSOFAR AS
MISSISSIPPI HAS POWER TO TAX THIS INTERSTATE BUSINESS FOR THE
PROTECTION ACCORDED THE "LOCAL INCIDENTS" OF THAT BUSINESS, THE TAXES
LEVIED BY THE STATE THROUGH ITS LOCAL TAXING AUTHORITIES EXHAUSTED THE
POWER.  TO TAX BEYOND THAT IS A BALD TAX ON THE PRIVILEGE OF DOING
INTERSTATE COMMERCE.  IF WE WERE PRECLUDED FROM DECIDING A CASE
OTHERWISE THAN BY THE PRECISE COURSE OF ARGUMENT PRESENTED BY COUNSEL,
MANY OF OUR OPINIONS WOULD HAVE TO BE DELETED FROM THE UNITED STATES
REPORTS. 

THE COURT HOWEVER ATTEMPTS TO DEAL WITH THE CONTENTION.  AS I
UNDERSTAND THE COURT'S OPINION, IT ARGUES THAT EVEN IF IT BE TRUE THAT
THIS TAX DOES NOT RECOMPENSE THE STATE FOR THE LOCAL PROTECTION
ACCORDED THE PETITIONER'S ACTIVITIES, THIS IS WHOLLY IMMATERIAL AS THE
SUPREME COURT OF MISSISSIPPI HAS GIVEN THE TAX A CONTRARY
INTERPRETATION.  THE OPINION OFFERS THE EXTRAORDINARY SUGGESTION THAT
ALTHOUGH THE STATE TAX COMMISSION ON BEHALF OF THE STATE CONCEDED THAT
THE EXACTION AS A MATTER OF FACT AFFORDED NO PROTECTION, THE STATE
SUPREME COURT MAY DISREGARD SUCH A CONCESSION OF FACT, HAVING ALL THE
FORCE OF PROOF, AND HOLD AS A MATTER OF LAW THAT PROTECTION BEYOND THAT
FOR WHICH TAXES WERE ALREADY IMPOSED WAS ENJOYED BY THE INTERSTATE
BUSINESS. 

IN THE FIRST PLACE THE SUPREME COURT OF MISSISSIPPI PURPORTED TO DO
NO SUCH THING.  ON THE CONTRARY, ITS OPINION CONCLUDED AS FOLLOWS: 

"DOES THE FRANCHISE TAX HERE DEMANDED AMOUNT TO ENOUGH TO HAVE ANY
SUBSTANTIAL EFFECT TO BLOCK OR IMPEDE THE FREE FLOW OF COMMERCE, OR IS
IT AT ALL OUT OF REASONABLE PROPORTION TO THE SERVICES AND PROTECTION
WHICH MUST BE FURNISHED BY THE STATE IN AND ABOUT THE STATED LOCAL
ACTIVITIES?  THE FRANCHISE TAX DEMANDED IS APPROXIMATELY $3,400 PER
ANNUM, WHEREAS THE AD VALOREM TAXES ARE APPROXIMATELY $82,000 A YEAR,
WHENCE THE OBVIOUS ANSWER TO THIS LAST QUESTION MUST BE IN THE
NEGATIVE."  (201 MISS.  670, 676.) 

OF COURSE, A STATE TAX ON INTERSTATE COMMERCE DOES NOT BECOME A VALID
ONE MERELY BECAUSE "IT'S ONLY A LITTLE ONE."  AND EVEN IN THESE DAYS,
AN UNCONSTITUTIONAL EXACTION BY A STATE OF $3,400 IS NOT DE MINIMIS. 

BUT EVEN IF THE STATE COURT'S OPINION WERE SUSCEPTIBLE OF THE
CONSTRUCTION ACCORDED IT BY THIS COURT, ITS IPSE DIXIT IN APPLYING THE
COMMERCE CLAUSE WOULD NOT BE BINDING ON THIS COURT.  OF COURSE THE
CONSTRUCTION OF A STATUTE IS FOR THE STATE COURT.  BUT THE CONSTRUCTION
OF THE STATUTE WHICH THIS COURT NOW ATTRIBUTES TO THE STATE SUPREME
COURT, WHEREBY THE TAX IS IMPOSED NOT FOR ANY "LOCAL INCIDENTS" -
BECAUSE THESE HAVE ALREADY BEEN FULLY TAXED - MAKES CLEAR BEYOND
PERADVENTURE THAT IT IS A TAX ON THE PRIVILEGE OF ENGAGING IN THE DOING
OF INTERSTATE BUSINESS WITHIN THE STATE, AND SUCH A TAX IS, OF COURSE,
INVALID UNDER THE COMMERCE CLAUSE. 

IT IS A NOVEL ABDICATION OF THIS COURT'S FUNCTION THAT WE ARE BOUND
BY A STATE COURT'S VIEWS OF THE CONSTITUTIONAL SIGNIFICANCE OF A STATE
TAX ON INTERSTATE BUSINESS, BUT ARE NOT BOUND BY AN UNAMBIGUOUS
STIPULATION BY THE STATE THAT NO PROTECTION WAS AFFORDED BY THE STATE
TO THE TAXABLE LOCAL INCIDENTS OF THE INTERSTATE BUSINESS BEYOND THAT
FOR WHICH THE STATE, THROUGH ITS LOCAL AGENCIES, HAS ALREADY LEVIED THE
TAX. 

A STATE MAY OF COURSE INCREASE THE RATE OF A PROPERLY APPORTIONED AD
VALOREM TAX OF AN INTERSTATE BUSINESS.  COMPARE WALLACE V. HINES, 253
U.S. 66.  BUT IT CAN DO SO ONLY BY INCREASING THE RATE.  THE MERE FACT
THAT THE SAME NUMBER OF DOLLARS COULD HAVE BEEN EXACTED BY THE STATE IN
A CONSTITUTIONAL WAY CANNOT LEGALIZE EVERY TAX, "AS THOUGH THE AD
VALOREM RATE HAD BEEN INCREASED."  BECAUSE A STATE COULD OBTAIN TWICE
THE AMOUNT OF REVENUE THAT IT GETS FROM AN INTERSTATE BUSINESS BY
INCREASING THE AD VALOREM RATE DOES NOT CONSTITUTIONALLY JUSTIFY A TAX
WHICH, BY VIRTUE OF A STIPULATION HAVING THE FORCE OF TRUTH, IS NOT
REFERABLE TO ANY PROTECTION WHICH THE STATE ACCORDS. 

THESE ARE NOT ABSTRACT OBJECTIONS AGAINST DISREGARDING THE TAX WHICH
THE STATE HAS IN FACT LEVIED AND TREATING IT AS THOUGH IT LEVIED SOME
OTHER TAX.  PRACTICAL CONSIDERATIONS PRECLUDE SUCH A PATENT ENDEAVOR TO
CIRCUMVENT THE RESTRICTIONS THAT THE COMMERCE CLAUSE PLACES UPON THE
TAXING POWERS OF THE STATES.  A STATE LEGISLATURE MAY BE READY TO LEVY
A TAX FOR THE PRIVILEGE OF DOING INTERSTATE BUSINESS WITHIN THE STATE -
AS LEGISLATURES HAVE AGAIN AND AGAIN ATTEMPTED TO DO - AND NOT BE
PREPARED TO INCREASE OUTRIGHT THE AD VALOREM RATE. 

THE SUGGESTION THAT AN OTHERWISE UNCONSTITUTIONAL TAX MAY BE TREATED
"AS THOUGH THE AD VALOREM RATE HAD BEEN INCREASED" IS AN EASY WAY OF
SUSTAINING ALMOST EVERY TAX THAT WOULD OTHERWISE FALL UNDER THE BAN OF
THE COMMERCE CLAUSE BY TRANSMUTING IT INTO AN ASSUMED INCREASE IN THE
RATE OF AN AD VALOREM TAX.  THE SUGGESTION HAS THE MERIT OF
INVENTIVENESS.  IN THE COMPETITION FOR REVENUE AMONG THE STATES, IT IS
AN INVENTIVENESS THAT SUBJECTS THE HITHERTO GREAT BOON OF FREE TRADE
ACROSS STATE LINES TO THE BANE OF MULTITUDINOUS LOCAL TARIFFS. 

THE JUDGMENT SHOULD BE REVERSED. 

FN1  THE SECOND PARAGRAPH OF THE STIPULATION, IN FULL, IS AS FOLLOWS:
"THAT ALL OF THE FACTS STATED IN SAID PETITION ARE TRUE AND NO PROOF
OF THE SAME SHALL BE REQUIRED IN THIS CAUSE.  THE STIPULATION THAT THE
FACTS ARE TRUE SHALL BE LIMITED TO THE FACTS STATED IN THE PETITION AND
THE DEFENDANTS SHALL NOT, BY VIRTUE OF THIS STIPULATION, BE CONSIDERED
OR HELD TO HAVE AGREED WITH ANY OF THE LEGAL PROPOSITIONS AND ARGUMENTS
MADE BY THE MEMPHIS NATURAL GAS COMPANY IN SAID PETITION AS THE PARTIES
RECOGNIZE THAT THESE LEGAL QUESTIONS AND ARGUMENTS ARE FOR
DETERMINATION BY THE COURT." 

FN2  THE STATUTE DEFINED "DOING BUSINESS" TO "MEAN AND INCLUDE EACH
AND EVERY ACT, POWER OR PRIVILEGE EXERCISED OR ENJOYED IN THIS STATE,
AS AN INCIDENT TO, OR BY VIRTUE OF THE POWERS AND PRIVILEGES ACQUIRED
BY THE NATURE OF SUCH ORGANIZATION, WHETHER THE FORM OF EXISTENCE BE
CORPORATE, ASSOCIATE, JOINT STOCK COMPANY OR COMMON LAW TRUST."  MISS. 
CODE SEC. 9312(1942). 

FN3  PARTICULARLY IN THE LIGHT OF THE SUBSTANTIAL TAXES PAID BY THE
PETITIONER FOR SUCH PROTECTION TO THE NINE COUNTY AND CITY TAXING
AUTHORITIES, WHERE NOTHING ELSE APPEARS IN THE RECORD EXCEPT THE
EXACTION, THIS UNCONTROVERTED ALLEGATION MUST CONTROL OVER THE
PRESUMPTIVE INFERENCE THAT MIGHT OTHERWISE BE DRAWN IN FAVOR OF THE
VALIDITY OF THE STATE'S EXACTION.  THIS COURT, AS THE SPECIAL GUARDIAN
OF THE COMMERCE CLAUSE, OUGHT NOT TO INDULGE IN CASUISTIC ASSUMPTIONS
THAT THE ALLEGATIONS LEFT UNCONTROVERTED BY THE STATE DO NOT CORRESPOND
TO THE REALITIES OF THE MISSISSIPPI SITUATION. 
..END :







UNITED STATES V. C.I.O., 335 U.S. 106 


NO. 695.  ARGUED APRIL 28-29, 1948.  - DECIDED JUNE 21, 1948.  - 77
F.SUPP.  355, AFFIRMED. 


A LABOR ORGANIZATION AND ITS PRESIDENT WERE INDICTED FOR VIOLATIONS OF
SEC. 313 OF THE CORRUPT PRACTICES ACT OF 1925, AS AMENDED BY SEC. 304
OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, WHICH PROHIBITS
CONTRIBUTIONS OR EXPENDITURES BY CORPORATIONS AND LABOR ORGANIZATIONS
IN CONNECTION WITH FEDERAL ELECTIONS.  THE INDICTMENT CHARGED THAT THE
LABOR ORGANIZATION MADE, AND ITS PRESIDENT CONSENTED TO, EXPENDITURES
FOR THE PUBLICATION OF A WEEKLY PERIODICAL, IN A CERTAIN ISSUE OF WHICH
APPEARED AN ARTICLE BY ITS PRESIDENT URGING MEMBERS TO VOTE FOR A
PARTICULAR CANDIDATE IN A FORTHCOMING CONGRESSIONAL ELECTION; AND THAT
IT MADE EXPENDITURES FOR THE PUBLICATION AND DISTRIBUTION OF EXTRA
COPIES OF THAT ISSUE IN CONNECTION WITH THE ELECTION; BUT IT DID NOT
CHARGE THAT FREE COPIES WERE DISTRIBUTED TO NONSUBSCRIBERS,
NONPURCHASERS OR PERSONS NOT ENTITLED TO RECEIVE COPIES AS MEMBERS OF
THE UNION.  THE DISTRICT COURT SUSTAINED A MOTION TO DISMISS ON THE
GROUND THAT THE ACT, SO FAR AS IT RELATED TO EXPENDITURES BY LABOR
ORGANIZATIONS IN CONNECTION WITH FEDERAL ELECTIONS, VIOLATED THE FIRST
AMENDMENT OF THE FEDERAL CONSTITUTION.  THE GOVERNMENT APPEALED
DIRECTLY TO THIS COURT UNDER THE CRIMINAL APPEALS ACT.  HELD: 

1.  THE INDICTMENT DOES NOT STATE AN OFFENSE UNDER SEC. 313 OF THE
ACT.  PP. 107-110, 120-124. 

2.  THE INTERPRETATION HERE PLACED ON SEC. 313 IS SUPPORTED BY THE
HISTORY, THE LANGUAGE, AND THE PURPOSE OF THE SECTION, AND BY THE FACT
THAT GRAVE DOUBT AS TO ITS CONSTITUTIONALITY WOULD ARISE WERE IT
CONSTRUED AS APPLICABLE TO THE ACTS CHARGED IN THE INDICTMENT.  PP. 113
122. 

3.  ON REVIEW UNDER THE CRIMINAL APPEALS ACT, THIS COURT IS NOT
REQUIRED TO PASS UPON THE CONSTITUTIONALITY OF SEC. 313 WHEN THE
INDICTMENT DOES NOT STATE AN OFFENSE UNDER IT.  P. 110. 

UNITED STATES V. CONGRESS OF INDUSTRIAL ORGANIZATIONS ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

RESPONDENTS, A LABOR ORGANIZATION AND AN OFFICER THEREOF, WERE
INDICTED FOR VIOLATIONS OF SEC. 313 OF THE CORRUPT PRACTICES ACT, AS
AMENDED BY SEC. 304 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947.  THE
DISTRICT COURT DISMISSED THE INDICTMENT ON THE GROUND OF
UNCONSTITUTIONALITY OF THE CHALLENGED PROVISION OF THE ACT.  77
F.SUPP.  355.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT UNDER THE
CRIMINAL APPEALS ACT.  AFFIRMED ON ANOTHER GROUND, P. 124. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS A PROBLEM AS TO THE CONSTITUTIONALITY OF SEC.
313 OF THE FEDERAL CORRUPT PRACTICES ACT OF 1925, AS AMENDED BY SEC.
304 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947.  SECTION 313 OF THE
FEDERAL CORRUPT PRACTICES ACT NOW READS AS STATED IN THE MARGIN.  FN1 

AN INDICTMENT WAS RETURNED AT THE JANUARY 1948 TERM IN THE DISTRICT
COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA ON TWO COUNTS
CHARGING IN COUNT I THE CONGRESS OF INDUSTRIAL ORGANIZATIONS AND IN
COUNT II ITS PRESIDENT, PHILIP MURRAY, WITH VIOLATION OF SEC. 313 OF
THE FEDERAL CORRUPT PRACTICES ACT BECAUSE OF THE PUBLICATION AND
DISTRIBUTION IN THE DISTRICT OF COLUMBIA OF AN ISSUE, VOL. 10, NO. 28,
UNDER DATE OF JULY 14, 1947, OF "THE CIO NEWS," A WEEKLY PERIODICAL
OWNED AND PUBLISHED BY THE CIO AT THE EXPENSE AND FROM THE FUNDS OF THE
CIO AND WITH THE CONSENT OF ITS PRESIDENT, MR. MURRAY.  THE NUMBER OF
"THE CIO NEWS" IN QUESTION CARRIED UPON ITS FRONT PAGE A STATEMENT BY
MR. MURRAY AS PRESIDENT OF THE CIO, URGING ALL MEMBERS OF THE CIO TO
VOTE FOR JUDGE ED GARMATZ, THEN A CANDIDATE FOR CONGRESS IN MARYLAND AT
A SPECIAL ELECTION TO BE HELD JULY 15, 1947.  THE STATEMENT SAID IT WAS
MADE DESPITE SEC. 313 IN THE BELIEF THAT THE SECTION WAS
UNCONSTITUTIONAL BECAUSE IT ABRIDGED RIGHTS OF FREE SPEECH, FREE PRESS
AND FREE ASSEMBLAGE, GUARANTEED BY THE BILL OF RIGHTS. 

THE DEFENDANTS MOVED TO DISMISS THE INDICTMENT ON THE GROUND THAT
SEC. 313 AS CONSTRUED AND APPLIED AND UPON ITS FACE ABRIDGED AS TO THE
CIO AND ITS MEMBERS AND MR. MURRAY FREEDOM OF SPEECH, PRESS AND
ASSEMBLY AND THE RIGHT TO PETITION THE GOVERNMENT FOR A REDRESS OF
GRIEVANCES IN VIOLATION OF THE CONSTITUTION; THAT THE CLASSIFICATION OF
LABOR ORGANIZATIONS WAS ARBITRARY AND THE PROVISIONS VAGUE IN
CONTRAVENTION OF THE BILL OF RIGHTS; AND THAT THE TERMS OF THE SECTION
WERE AN INVASION OF THE RIGHTS OF DEFENDANTS, PROTECTED BY THE NINTH
AND TENTH AMENDMENTS.  THE DISTRICT COURT SUSTAINED THE MOTION TO
DISMISS ON THE GROUND THAT AS "NO CLEAR AND PRESENT DANGER TO THE
PUBLIC INTEREST CAN BE FOUND IN THE CIRCUMSTANCES SURROUNDING THE
ENACTMENT OF THIS LEGISLATION" THE ASSERTED ABRIDGMENT OF THE FREEDOMS
OF THE FIRST AMENDMENT WAS UNJUSTIFIED.  FN2 77 F.SUPP.  355.  IN THE
ORDER GRANTING THE MOTION TO DISMISS, THE DISTRICT COURT DEFINED ITS
RULING AS FOLLOWS: 

"  ...  THAT THAT PORTION OF SECTION 313 OF THE CORRUPT PRACTICES
ACT, AS AMENDED BY SECTION 304 OF THE LABOR-MANAGEMENT RELATIONS ACT,
1947, WHICH PROHIBITS EXPENDITURES BY ANY LABOR ORGANIZATION IN
CONNECTION WITH ANY ELECTION AT WHICH PRESIDENTIAL AND VICE
PRESIDENTIAL ELECTORS OR A SENATOR OR REPRESENTATIVE IN, OR A DELEGATE
OR RESIDENT COMMISSIONER TO CONGRESS ARE TO BE VOTED FOR, OR IN
CONNECTION WITH ANY PRIMARY ELECTION OR POLITICAL CONVENTION OR CAUCUS
HELD TO SELECT CANDIDATES FOR ANY OF THE FOREGOING OFFICES, IS
UNCONSTITUTIONAL." 

WE ACCEPTED JURISDICTION OF THE GOVERNMENT'S APPEAL UNDER THE
CRIMINAL APPEALS ACT.  18 U.S.C. SEC. 682. 

THE BRIEFS AND ARGUMENTS SUBMITTED TO US SUPPORT AND ATTACK THE
CONSTITUTIONALITY OF SEC. 313 OF THE FEDERAL CORRUPT PRACTICES ACT ON
ITS FACE - AT LEAST SO FAR AS UNCONSTITUTIONALITY IS DECLARED IN THE
ABOVE ORDER.  WE DO NOT ADMIT ANY DUTY IN THIS COURT TO PASS UPON SUCH
A CONTENTION ON AN APPEAL UNDER THE CRIMINAL APPEALS ACT EXCEPT IN
CASES OF LOGICAL NECESSITY.  UNITED STATES V. PETRILLO, 332 U.S. 1. 
ALTHOUGH THE CASE TURNED BELOW ON THE CONSTITUTIONALITY OF THE
PROVISION, THE CRIMINAL APPEALS ACT DOES NOT REQUIRE US TO PASS UPON
THE CONSTITUTIONALITY OF A FEDERAL STATUTE WHERE THE INDICTMENT DOES
NOT STATE AN OFFENSE UNDER ITS TERMS.  UNITED STATES V. L. COHEN
GROCERY CO., 255 U.S. 81, 88, 97.  COMPARE UNITED STATES V. CARBONE,
327 U.S. 633.  OUR FIRST OBLIGATION IS TO DECIDE WHETHER THE INDICTMENT
STATES AN OFFENSE UNDER SEC. 313.  AS WE HEREAFTER CONCLUDE THAT THIS
INDICTMENT DOES NOT CHARGE ACTS EMBRACED WITHIN ITS SCOPE, THIS OPINION
IS LIMITED TO THAT ISSUE. 

INDICTMENT. - THE PRESENTLY ESSENTIAL PARTS OF THE INDICTMENT ARE SET
OUT IN THE MARGIN.  FN3 IT WILL BE NOTED THAT PARAGRAPH (3) DOES NOT
ALLEGE THE SOURCE OF THE CIO FUNDS.  THE PARAGRAPH INDICATES ON ITS
FACE THAT "THE CIO NEWS" WAS A REGULARLY PUBLISHED WEEKLY PERIODICAL OF
WHICH THE CHALLENGED ISSUE WAS VOL. 10, NO. 28.  THE FUNDS USED MAY
HAVE BEEN OBTAINED FROM SUBSCRIPTIONS OF ITS READERS OR FROM PORTIONS
OF CIO MEMBERSHIP DUES, DIRECTLY ALLOCATED BY THE MEMBERS TO PAY FOR
THE "NEWS," OR FROM OTHER GENERAL OR SPECIAL RECEIPTS. 

WE DO NOT READ THE INDICTMENT AS CHARGING AN EXPENDITURE BY THE CIO
IN CIRCULATING FREE COPIES TO NONSUBSCRIBERS, NONPURCHASERS OR AMONG
CITIZENS NOT ENTITLED TO RECEIVE COPIES OF "THE CIO NEWS," AS MEMBERS
OF THE UNION.  THE INDICTMENT, COUNT I, PARAGRAPH (3), CHARGED THE CIO
WITH MAKING EXPENDITURES FROM ITS FUNDS FOR "THE COST OF DISTRIBUTION"
OF THE PAPER, IN PARAGRAPH (6)(A), WITH PAYING APPROXIMATELY $100 FOR
POSTAL CHARGES FOR THE CHALLENGED ISSUE AND "CAUSING SAID ARTICLE TO BE
DISTRIBUTED IN THE THIRD CONGRESSIONAL DISTRICT OF THE STATE OF
MARYLAND AND ELSEWHERE IN CONNECTION WITH THE SPECIAL ELECTION HELD IN
THAT CONGRESSIONAL DISTRICT ON THE FIFTEENTH DAY OF JULY 1947."  IN
PARAGRAPH (6)(B) THERE ARE ALLEGATIONS ABOUT CERTAIN EXTRA COPIES. 
THESE ARE SET OUT IN THE MARGINAL NOTE 3 SUPRA.  THE EXTRAS WE ASSUME
WERE PUBLISHED PURSUANT TO THE ORDER OF MR. MURRAY IN THE ARTICLE.  FN4
WE CONCLUDE THAT THE INDICTMENT CHARGES NOTHING MORE AS TO THE EXTRAS
THAN THAT EXTRA COPIES OF THE "NEWS" WERE PUBLISHED FOR DISTRIBUTION
AND WERE DISTRIBUTED IN REGULAR COURSE TO MEMBERS OR PURCHASERS AND
THAT NO ALLEGATION HAS BEEN MADE OF EXPENDITURES FOR "FREE"
DISTRIBUTION OF THE PAPER TO THOSE NOT REGULARLY ENTITLED TO RECEIVE
IT. 

SCOPE OF SECTION 313.  - THE CONSTRUCTION OF THIS SECTION AS APPLIED
TO THIS INDICTMENT TURNS ON THE RANGE OF THE WORD "EXPENDITURE," ADDED
TO THE SECTION BY SEC. 304 OF THE LABOR MANAGEMENT RELATIONS ACT OF
1947, AS INDICATED IN NOTE 1, SUPRA.  "EXPENDITURE" AS HERE USED IS NOT
A WORD OF ART.  IT HAS NO DEFINITELY DEFINED MEANING AND THE
APPLICABILITY OF THE WORD TO PROHIBITION OF PARTICULAR ACTS MUST BE
DETERMINED FROM THE CIRCUMSTANCES SURROUNDING ITS EMPLOYMENT.  THE
REACH OF ITS MEANING RAISED QUESTIONS DURING CONGRESSIONAL
CONSIDERATION OF THE BILL WHEN IT CONTAINED THE PRESENT TEXT OF THE
A CORPORATELY OWNED NEWSPAPER?  93 CONG. REC. 6438.  COULD
UNINCORPORATED TRADE ASSOCIATIONS MAKE EXPENDITURES?  ID., 6439.  COULD
A UNION-OWNED RADIO STATION GIVE TIME FOR A POLITICAL SPEECH?  ID.,
6439.  WHAT OF COMMENTS BY A RADIO COMMENTATOR?  ID., 6439.  IS IT AN
EXPENDITURE ONLY WHEN A IS RUNNING AGAINST B OR IS FREE, FAVORABLE
PUBLICITY FOR PROSPECTIVE CANDIDATES ILLEGAL?  ID., 6440.  WHAT OF
CORPORATELY OWNED RELIGIOUS PAPERS SUPPORTING A CANDIDATE ON MORAL
GROUNDS?  THE ANTI-SALOON LEAGUE?  ID., 6440. 

THE PURPOSE OF CONGRESS IS A DOMINANT FACTOR IN DETERMINING MEANING. 
FN5  THERE IS NO BETTER KEY TO A DIFFICULT PROBLEM OF STATUTORY
CONSTRUCTION THAN THE LAW FROM WHICH THE CHALLENGED STATUTE EMERGED. 
REMEDIAL LAWS ARE TO BE INTERPRETED IN THE LIGHT OF PREVIOUS EXPERIENCE
AND PRIOR ENACTMENTS.  FN6  NOR, WHERE DOUBT EXISTS, SHOULD WE
DISREGARD INFORMED CONGRESSIONAL DISCUSSION.  FN7 

ACT OF JANUARY 26, 1907, WHICH PROVIDED: 

"THAT IT SHALL BE UNLAWFUL FOR ANY NATIONAL BANK, OR ANY CORPORATION
ORGANIZED BY AUTHORITY OF ANY LAWS OF CONGRESS, TO MAKE A MONEY
CONTRIBUTION IN CONNECTION WITH ANY ELECTION TO ANY POLITICAL OFFICE. 
IT SHALL ALSO BE UNLAWFUL FOR ANY CORPORATION WHATEVER TO MAKE A MONEY
CONTRIBUTION IN CONNECTION WITH ANY ELECTION AT WHICH PRESIDENTIAL AND
VICE-PRESIDENTIAL ELECTORS OR A REPRESENTATIVE IN CONGRESS IS TO BE
VOTED FOR OR ANY ELECTION BY ANY STATE LEGISLATURE OF A UNITED STATES
SENATOR.  ...  "  34 STAT. 864-65. 

THIS LEGISLATION SEEMS TO HAVE BEEN MOTIVATED BY TWO CONSIDERATIONS. 
FIRST, THE NECESSITY FOR DESTROYING THE INFLUENCE OVER ELECTIONS WHICH
CORPORATIONS EXERCISED THROUGH FINANCIAL CONTRIBUTION.  FN8  SECOND,
THE FEELING THAT CORPORATE OFFICIALS HAD NO MORAL RIGHT TO USE
CORPORATE FUNDS FOR CONTRIBUTION TO POLITICAL PARTIES WITHOUT THE
CONSENT OF THE STOCKHOLDERS.  FN9 

THE NEXT IMPORTANT LEGISLATION WAS THE FEDERAL CORRUPT PRACTICES ACT,
1925.  THIS STATUTE WAS THE LEGISLATIVE RESPONSE TO THE DECISION OF
THIS COURT IN NEWBERRY V. UNITED STATES, 256 U.S. 232.  CF. UNITED
STATES V. CLASSIC, 313 U.S. 299.  THE NEWBERRY CASE HELD THAT FEDERAL
LIMITATION UPON EXPENDITURES BY CANDIDATES WAS UNCONSTITUTIONAL AS
APPLIED TO EXPENDITURES MADE IN THE COURSE OF A PRIMARY ELECTION FOR
THE SENATE.  FN10  WHILE THAT CASE DID NOT DIRECTLY CONCERN ITSELF WITH
THE ACT OF 1907, IT WAS WIDELY CONSTRUED TO HAVE INVALIDATED ALL
FEDERAL CORRUPT PRACTICES LEGISLATION RELATING TO NOMINATIONS. 
THEREFORE, THE 1925 ACT REENACTED THE EARLIER PROHIBITIONS AGAINST
CORPORATE CONTRIBUTIONS FOR POLITICAL PURPOSES WITH TWO SIGNIFICANT
CHANGES.  THE PHRASE "MONEY CONTRIBUTION" OF 1907 WAS CHANGED TO READ
"CONTRIBUTION,"  FN11  AND PRIMARIES AND CONVENTIONS WERE EXPRESSLY
EXCLUDED FROM THE SCOPE OF THE LEGISLATION.  FN12 

THE STATUTE IMMEDIATELY PRECEDING SEC. 304 IN TIME WAS THE WAR LABOR
DISPUTES ACT OF 1943.  FN13 THIS ACT EXTENDED, FOR THE DURATION OF THE
WAR,  FN14  THE PROHIBITIONS OF THE ACT OF 1925 TO LABOR
ORGANIZATIONS.  ITS LEGISLATIVE HISTORY INDICATES CONGRESSIONAL BELIEF
THAT LABOR UNIONS SHOULD THEN BE PUT UNDER THE SAME RESTRAINTS AS HAD
BEEN IMPOSED UPON CORPORATIONS.  IT WAS FELT THAT THE INFLUENCE WHICH
LABOR UNIONS EXERCISED OVER ELECTIONS THROUGH MONETARY EXPENDITURES
SHOULD BE MINIMIZED,  FN15  AND THAT IT WAS UNFAIR TO INDIVIDUAL UNION
MEMBERS TO PERMIT THE UNION LEADERSHIP TO MAKE CONTRIBUTIONS FROM
GENERAL UNION FUNDS TO A POLITICAL PARTY WHICH THE INDIVIDUAL MEMBER
MIGHT OPPOSE.  FN16 

WHEN CONGRESS BEGAN TO CONSIDER THE LABOR MANAGEMENT RELATIONS ACT OF
1947 IT HAD AS A GUIDE THE 1944 PRESIDENTIAL ELECTION, AN ELECTION
WHICH HAD BEEN CONDUCTED UNDER THE ABOVE AMENDMENT TO THE ACT OF 1925. 
IN ANALYZING THE EXPERIENCE OF THAT ELECTION, A SERIOUS DEFECT WAS
FOUND IN THE WORDING OF THE ACT OF 1925.  THE DIFFICULTY WAS THAT THE
WORD "CONTRIBUTION" WAS READ NARROWLY BY VARIOUS SPECIAL CONGRESSIONAL
COMMITTEES INVESTIGATING THE 1944 AND 1946 CAMPAIGNS.  FN17  THE
CONCEPT OF "CONTRIBUTION" WAS THOUGHT TO BE CONFINED TO DIRECT GIFTS OR
DIRECT PAYMENTS.  FN18 SINCE IT WAS OBVIOUS THAT THE STATUTE AS
CONSTRUED COULD EASILY BE CIRCUMVENTED THROUGH INDIRECT CONTRIBUTIONS,
SEC. 304 EXTENDED THE PROHIBITION OF SEC. 313 TO "EXPENDITURES."  FN19 

THE LABOR MANAGEMENT RELATIONS ACT OF 1947 WAS THE SUBJECT OF
EXTENSIVE DEBATES IN CONGRESS.  EMBRACING AS IT DID A NUMBER OF
CONTROVERSIAL ISSUES, THE DISCUSSION NECESSARILY COVERED A WIDE RANGE. 
IT IS NOT SURPRISING, THEREFORE, TO FIND CONGRESSIONAL EXPLANATION OF
THE INTENDED SCOPE OF THE SPECIFIC PROVISION OF SEC. 304, IN ISSUE
HERE, SCANTY AND INDECISIVE.  WE FIND, HOWEVER, IN THE SENATE DEBATES
DEFINITE INDICATION THAT CONGRESS DID NOT INTEND TO INCLUDE WITHIN THE
COVERAGE OF THE SECTION AS AN EXPENDITURE THE COSTS OF THE PUBLICATION
DESCRIBED IN THE INDICTMENT.  AS WE HAVE STATED ABOVE, THERE ARE
NUMEROUS SUPPOSITIONAL INSTANCES OF ACTS BY CORPORATIONS OR UNIONS THAT
APPROACH THE BORDER LINE OF THE EXPENDITURES THAT ARE DECLARED UNLAWFUL
BY SEC. 313 OF THE CORRUPT PRACTICES ACT.  AS WE ARE DEALING ON THIS
APPEAL WITH THE SCOPE OF SEC. 313 AS APPLIED TO AN INDICTMENT THAT
CHARGES CERTAIN ALLEGEDLY ILLEGAL ACTS, WE PROPOSE TO CONFINE OUR
EXAMINATION OF LEGISLATIVE HISTORY TO THE STATEMENTS THAT TEND TO SHOW
WHETHER THE CONGRESSIONAL PURPOSE WAS TO FORBID THE CHALLENGED
PUBLICATION.  FOR EXAMPLE, SENATOR TAFT, THE CHAIRMAN OF THE COMMITTEE
ON LABOR AND PUBLIC WELFARE, AND ONE OF THE CONFEREES FOR THE SENATE,
ANSWERED INQUIRIES AS FOLLOWS (93 CONG. REC. 6437, 6438, 6440): 

"MR. BARKLEY.  SUPPOSE THE PARTICULAR PUBLICATION REFERRED TO BY THE
SENATOR FROM FLORIDA IS PUBLISHED AND PAID FOR BY SUBSCRIPTIONS PAID TO
THE PUBLICATION BY THE MEMBERSHIP OF THAT RAILWAY LABOR ORGANIZATION? 
"MR. TAFT.  THAT WILL BE PERFECTLY LAWFUL.  THAT IS THE WAY IT SHOULD
BE DONE. 

"MR. BARKLEY.  AND SUPPOSE IT IS NOT PAID FOR BY UNION FUNDS
COLLECTED FROM THE VARIOUS LABOR UNIONS? 

"MR. TAFT.  THAT WILL BE PERFECTLY PROPER. 

     .    .         .         .         . 

"MR. BARKLEY.  THE SENATOR FROM OHIO REFERRED TO THE LAW PROHIBITING
THE MAKING OF DIRECT OR INDIRECT CONTRIBUTIONS BY CORPORATIONS AS A
JUSTIFICATION FOR MAKING THE SAME PROVISION IN THE CASE OF LABOR
UNIONS.  LET US CONSIDER THE PUBLICATION OF A CORPORATION WHICH, DAY
AFTER DAY, TAKES A POSITION AGAINST ONE CANDIDATE AND IN FAVOR OF
ANOTHER CANDIDATE, AND DOES SO IN ITS EDITORIALS.  THE EDITORIALS
OCCUPY SPACE IN THAT NEWSPAPER OR PUBLICATION, AND THE SPACE COSTS A
CERTAIN AMOUNT OF MONEY.  IS THAT A DIRECT OR AN INDIRECT CONTRIBUTION
TO A CAMPAIGN; AND IF IT IS NEITHER, WHAT IS IT? 

"MR. TAFT.  I WOULD SAY THAT IS THE OPERATION OF THE NEWSPAPER
ITSELF. 

"MR. BARKLEY.  THAT IS TRUE; IT IS THE OPERATION OF THE NEWSPAPER. 
BUT I GATHERED THE IMPRESSION THAT IN REFERRING TO THE PRESENT LAW
PROHIBITING THE MAKING OF CONTRIBUTIONS, DIRECTLY OR INDIRECTLY BY
CORPORATIONS, THE SENATOR INFERRED THAT IF A CORPORATION PUBLISHES A
NEWSPAPER - AS MOST OF THEM DO - AND USES THE EDITORIALS IN THAT
PUBLICATION IN ADVOCACY OF OR OPPOSITION TO ANY CANDIDATE, AT LEAST
THAT IS A DIRECT CONTRIBUTION TO THE CAMPAIGN.  IT COULD NOT BE
ANYTHING ELSE. 

"MR. TAFT.  I DO NOT THINK IT IS EITHER A DIRECT OR AN INDIRECT
CONTRIBUTION.  I DO NOT THINK IT IS AN EXPENDITURE OF THE SORT
PROHIBITED, BECAUSE IT SEEMS TO ME IT IS SIMPLY THE ORDINARY OPERATION
OF THE PARTICULAR CORPORATION'S BUSINESS. 

     .         .         .         .         . 

"MR. BARKLEY.  MR. PRESIDENT, LET ME ASK THE SENATOR THIS QUESTION:
LET US SUPPOSE A LABOR ORGANIZATION PUBLISHES A NEWSPAPER FOR THE
INFORMATION AND BENEFIT OF ITS MEMBERS, AND LET US SUPPOSE THAT IT IS
PUBLISHED REGULARLY, WHETHER DAILY OR WEEKLY OR MONTHLY, AND IS PAID
FOR FROM A FUND CREATED BY THE PAYMENT OF DUES INTO THE ORGANIZATION IT
REPRESENTS.  LET US ASSUME THAT THE NEWSPAPER IS NOT SOLD ON THE
STREETS, AND LET US ASSUME FURTHER THAT A CERTAIN SUBSCRIPTION BY THE
MONTH OR BY THE YEAR IS NOT CHARGED FOR THE NEWSPAPER.  DOES THE
SENATOR FROM OHIO ADVISE US THAT UNDER THIS MEASURE SUCH A NEWSPAPER
COULD NOT TAKE AN EDITORIAL POSITION WITH RESPECT TO ANY CANDIDATE FOR
PUBLIC OFFICE, WITHOUT VIOLATING THIS MEASURE? 

"MR. TAFT.  IF IT IS SUPPORTED BY UNION FUNDS, I DO NOT THINK IT
COULD.  IF THE NEWSPAPER IS PREPARED AND DISTRIBUTED AND CIRCULATED BY
MEANS OF THE EXPENDITURE OF UNION FUNDS, THEN HOW COULD A LINE BE DRAWN
BETWEEN THAT AND POLITICAL LITERATURE OR PAMPHLETS OR PUBLICATIONS OF
THAT NATURE?  IT IS PERFECTLY EASY FOR A LABOR UNION TO PUBLISH
LAWFULLY A BONA FIDE NEWSPAPER AND TO CHARGE SUBSCRIPTIONS FOR THAT
NEWSPAPER, EITHER BY ITSELF OR AS A CORPORATION. 

     .   .         .         .         . 

"MR. BALL.  IN THE CASE OF MOST UNION PAPERS, AS I UNDERSTAND, THE
SUBSCRIPTIONS FROM THE UNION MEMBERS ARE COLLECTED ALONG WITH THE DUES,
BUT THEY ARE AN EARMARKED PORTION OF THE DUES WHICH THE UNION COLLECTS
AND REMITS TO THE PAPER IN THE FORM OF SUBSCRIPTIONS.  I TAKE IT THAT
WOULD BE IN A DIFFERENT CATEGORY FROM THE CASE WHERE THE UNION MAKES A
BLANKET SUBSCRIPTION AND AN APPROPRIATION OUT OF UNION DUES. 

"MR. TAFT.  I THINK IF THE PAPER IS, SO TO SPEAK, A GOING CONCERN, IT
CAN TAKE WHATEVER POSITION IT WANTS TO. 

     .         .         .         .         . 

"MR. MAGNUSON.  TEAMSTERS' UNIONS PUBLISH NEWSPAPERS DEALING WITH
MATTERS IN WHICH SUCH UNIONS ARE INTERESTED.  THE SAME IS TRUE OF MANY
OTHER UNIONS.  IF THE PENDING MEASURE BECOMES A LAW, FROM NOW ON SUCH
UNIONS WILL BE PROHIBITED FROM ADVOCATING IN THEIR NEWSPAPERS THE
SUPPORT OF ANY POLITICAL CANDIDATES. 

"MR. TAFT.  THAT IS CORRECT, UNLESS THEY SELL THE PAPERS THEY PUBLISH
TO THEIR MEMBERS, IF THE MEMBERS DESIRE TO BUY THEM.  IN SUCH A CASE
THERE WOULD BE NO EXPENDITURE FOR SUCH A PURPOSE OF UNION FUNDS. 

     .         .         .         .         . 

"MR. MAGNUSON.  MR. PRESIDENT, IF THE SENATOR WILL YIELD, LET ME ASK
HIM ANOTHER QUESTION.  ALL THE FUNDS OF LABOR UNIONS COME FROM DUES
PAID BY THEIR MEMBERS.  ALL THE ACTIVITIES OF THE UNIONS ARE BASED UPON
EXPENDITURE OF FUNDS PROVIDED BY DUES.  THAT MONEY IS IN THE UNION'S
TREASURY.  IF THE PENDING BILL SHOULD BECOME LAW IT WOULD MEAN THAT ALL
LABOR ORGANS WHICH ARE NOW IN EXISTENCE WOULD, FROM NOW ON, BE
PROHIBITED FROM PARTICIPATING IN A CAMPAIGN, FAVORING A CANDIDATE,
MENTIONING HIS NAME, OR ENDORSING HIM FOR PUBLIC OFFICE? 

"MR. TAFT.  NO; I DO NOT THINK IT MEANS THAT.  THE UNION CAN ISSUE A
NEWSPAPER, AND CAN CHARGE THE MEMBERS FOR THE NEWSPAPER, THAT IS, THE
MEMBERS WHO BUY COPIES OF THE NEWSPAPER, AND THE UNION CAN PUT SUCH
MATTERS IN THE NEWSPAPER IF IT WANTS TO.  THE UNION CAN SEPARATE THE
PAYMENT OF DUES FROM THE PAYMENT FOR A NEWSPAPER IF ITS MEMBERS ARE
WILLING TO DO SO, THAT IS, IF THE MEMBERS ARE WILLING TO SUBSCRIBE TO
THAT KIND OF A NEWSPAPER.  I PRESUME THE MEMBERS WOULD BE WILLING TO DO
SO.  A UNION CAN PUBLISH SUCH A NEWSPAPER, OR UNIONS CAN DO AS WAS DONE
LAST YEAR, ORGANIZE SOMETHING LIKE THE PAC, A POLITICAL ORGANIZATION,
AND RECEIVE DIRECT CONTRIBUTIONS, JUST SO LONG AS MEMBERS OF THE UNION
KNOW WHAT THEY ARE CONTRIBUTING TO, AND THE DUES WHICH THEY PAY INTO
THE UNION TREASURY ARE NOT USED FOR SUCH PURPOSE." 

SENATOR ELLENDER, ALSO ONE OF THE CONFEREES, MADE THIS STATEMENT: 

"MAY I SAY TO THE SENATOR FROM FLORIDA IT IS ONLY IN THE EVENT THAT
UNION FUNDS ARE USED FOR POLITICAL CONTRIBUTIONS THAT A UNION BECOMES
LIABLE.  MR. GREEN CAN TALK ALL HE WANTS TO, IF HE PAYS FOR HIS OWN
TIME OR IF THE MEMBERS OF THE UNION DESIRE TO MAKE INDIVIDUAL
CONTRIBUTIONS FOR SUCH A PURPOSE.  FOR ANOTHER THING, MOST UNIONS
OPERATE AND MANAGE NEWSPAPERS, AND THE MOST OF THEM ARE MAINTAINED BY
ADVERTISEMENTS OR BY SUBSCRIPTIONS FROM MEMBERS OF THE UNION AND FROM
OTHER SOURCES.  THE PROCEEDS FROM SUCH NEWSPAPERS ARE NOT UNION FUNDS. 
IN SUCH CASES THESE NEWSPAPERS CAN PRINT ANYTHING THEY DESIRE, AND THEY
WILL NOT VIOLATE THE LAW, SO LONG AS UNION FUNDS ARE NOT USED TO PAY
FOR THE OPERATION OF THOSE NEWSPAPERS FOR POLITICAL PURPOSES."  93
CONG. REC. 6522. 

APPLICATION. - WITH THIS SUMMARY OF THE DEVELOPMENT OF AND QUOTATION
OF EXCERPTS FROM DISCUSSION IN CONGRESS CONCERNING SEC. 313, WE TURN TO
ITS INTERPRETATION AND A DETERMINATION AS TO WHETHER IT COVERS THE
CIRCUMSTANCES CHARGED IN THE INDICTMENT.  SOME MEMBERS OF THE COURT,
JOINING IN THIS OPINION, DO NOT PLACE THE RELIANCE UPON LEGISLATIVE
HISTORY THAT THIS OPINION EVIDENCES, BUT REACH THE SAME CONCLUSION
WITHOUT CONSIDERATION OF THAT HISTORY.  FROM WHAT WE HAVE PREVIOUSLY
NOTED, IT IS CLEAR THAT CONGRESS WAS KEENLY AWARE OF THE CONSTITUTIONAL
LIMITATIONS ON LEGISLATION AND OF THE DANGER OF THE INVALIDATION BY THE
COURTS OF ANY ENACTMENT THAT THREATENED ABRIDGMENT OF THE FREEDOMS OF
THE FIRST AMENDMENT.  IT DID NOT WANT TO PASS ANY LEGISLATION THAT
WOULD THREATEN INTERFERENCES WITH THE PRIVILEGES OF SPEECH OR PRESS OR
THAT WOULD UNDERTAKE TO SUPERSEDE THE CONSTITUTION.  THE OBLIGATION
RESTS ALSO UPON THIS COURT IN CONSTRUING CONGRESSIONAL ENACTMENTS TO
TAKE CARE TO INTERPRET THEM SO AS TO AVOID A DANGER OF
UNCONSTITUTIONALITY.  FN20 

IF SEC. 313 WERE CONSTRUED TO PROHIBIT THE PUBLICATION, BY
CORPORATIONS AND UNIONS IN THE REGULAR COURSE OF CONDUCTING THEIR
AFFAIRS, OF PERIODICALS ADVISING THEIR MEMBERS, STOCKHOLDERS OR
CUSTOMERS OF DANGER OR ADVANTAGE TO THEIR INTERESTS FROM THE ADOPTION
OF MEASURES, OR THE ELECTION TO OFFICE OF MEN ESPOUSING SUCH MEASURES,
THE GRAVEST DOUBT WOULD ARISE IN OUR MINDS AS TO ITS
CONSTITUTIONALITY.  FN21  IN SO FAR AS SOME OF THE MANY STATEMENTS MADE
ON THE FLOOR OF CONGRESS MAY INDICATE THE THOUGHT, AT THE TIME, BY
CERTAIN MEMBERS OF CONGRESS THAT THE LANGUAGE OF SEC. 313 CARRIED A
RESTRICTIVE MEANING IN CONFLICT WITH THAT WHICH WE HAVE ADOPTED, WE
HOLD THAT THE LANGUAGE ITSELF, COUPLED WITH THE DANGERS OF
UNCONSTITUTIONALITY, SUPPORTS THE INTERPRETATION WHICH WE HAVE PLACED
UPON IT. 

WHEN CONGRESS COUPLED THE WORD "EXPENDITURE" WITH THE WORD
"CONTRIBUTION," IT DID SO BECAUSE THE PRACTICAL OPERATION OF SEC. 313
IN PREVIOUS ELECTIONS SHOWED THE NEED TO STRENGTHEN THE BARS AGAINST
THE MISUSE OF AGGREGATED FUNDS GATHERED INTO THE CONTROL OF A SINGLE
ORGANIZATION FROM MANY INDIVIDUAL SOURCES.  APPARENTLY "EXPENDITURE"
WAS ADDED TO ERADICATE THE DOUBT THAT HAD BEEN RAISED AS TO THE REACH
OF "CONTRIBUTION," NOT TO EXTEND GREATLY THE COVERAGE OF THE SECTION. 
FN22 ONE CAN FIND INDICATIONS IN THE EXCHANGES BETWEEN PARTICIPANTS IN
THE DEBATES THAT INFORMED PROPONENTS AND OPPONENTS THOUGHT THAT SEC.
313 WENT SO FAR AS TO FORBID PERIODICALS IN THE REGULAR COURSE OF
PUBLICATION FROM TAKING PART IN PENDING ELECTIONS WHERE THERE WAS NOT
SEGREGATED SUBSCRIPTION, ADVERTISING OR SALES MONEYS ADEQUATE FOR ITS
SUPPORT.  OF COURSE, A PERIODICAL FINANCED BY A CORPORATION OR LABOR
UNION FOR THE PURPOSE OF ADVOCATING LEGISLATION ADVANTAGEOUS TO THE
SPONSOR OR SUPPORTING CANDIDATES WHOSE VIEWS ARE BELIEVED TO COINCIDE
GENERALLY WITH THOSE DEEMED ADVANTAGEOUS TO SUCH ORGANIZATION IS ON A
DIFFERENT LEVEL FROM NEWSPAPERS DEVOTED SOLELY TO THE DISSEMINATION OF
NEWS BUT THE LINE SEPARATING THE TWO CLASSES IS NOT CLEAR.  IN THE
ABSENCE OF DEFINITE STATUTORY DEMARCATION, THE LOCATION OF THAT LINE
MUST AWAIT THE FULL DEVELOPMENT OF FACTS IN INDIVIDUAL CASES.  IT IS
ONE THING TO SAY THAT TRADE OR LABOR UNION PERIODICALS PUBLISHED
REGULARLY FOR MEMBERS, STOCKHOLDERS OR PURCHASERS ARE ALLOWABLE UNDER
SEC. 313 AND QUITE ANOTHER TO SAY THAT IN CONNECTION WITH AN ELECTION
OCCASIONAL PAMPHLETS OR DODGERS OR FREE COPIES WIDELY SCATTERED ARE
FORBIDDEN.  SENATOR TAFT STATED ON THE SENATE FLOOR THAT FUNDS
VOLUNTARILY CONTRIBUTED FOR ELECTION PURPOSES MIGHT BE USED WITHOUT
VIOLATING THE SECTION AND PAPERS SUPPORTED BY SUBSCRIPTIONS AND SALES
MIGHT LIKEWISE BE PUBLISHED.  FN23  MEMBERS OF UNIONS PAYING DUES AND
STOCKHOLDERS OF CORPORATIONS KNOW OF THE PRACTICE OF THEIR RESPECTIVE
ORGANIZATIONS IN REGULARLY PUBLISHING PERIODICALS.  IT WOULD REQUIRE
EXPLICIT WORDS IN AN ACT TO CONVINCE US THAT CONGRESS INTENDED TO BAR A
TRADE JOURNAL, A HOUSE ORGAN OR A NEWSPAPER, PUBLISHED BY A
CORPORATION, FROM EXPRESSING VIEWS ON CANDIDATES OR POLITICAL PROPOSALS
IN THE REGULAR COURSE OF ITS PUBLICATION.  IT IS UNDULY STRETCHING
LANGUAGE TO SAY THAT THE MEMBERS OR STOCKHOLDERS ARE UNWILLING
PARTICIPANTS IN SUCH NORMAL ORGANIZATIONAL ACTIVITIES, INCLUDING THE
ADVOCACY THEREBY OF GOVERNMENTAL POLICIES AFFECTING THEIR INTERESTS,
AND THE SUPPORT THEREBY OF CANDIDATES THOUGHT TO BE FAVORABLE TO THEIR
INTERESTS. 

IT IS OUR CONCLUSION THAT THIS INDICTMENT CHARGES ONLY THAT THE CIO
AND ITS PRESIDENT PUBLISHED WITH UNION FUNDS A REGULAR PERIODICAL FOR
THE FURTHERANCE OF ITS AIMS, THAT PRESIDENT MURRAY AUTHORIZED THE USE
OF THOSE FUNDS FOR DISTRIBUTION OF THIS ISSUE IN REGULAR COURSE TO
THOSE ACCUSTOMED TO RECEIVE COPIES OF THE PERIODICAL AND THAT THE ISSUE
WITH THE STATEMENT DESCRIBED AT THE BEGINNING OF THIS OPINION VIOLATED
SEC. 313 OF THE CORRUPT PRACTICES ACT. 

WE ARE UNWILLING TO SAY THAT CONGRESS BY ITS PROHIBITION AGAINST
CORPORATIONS OR LABOR ORGANIZATIONS MAKING AN "EXPENDITURE IN
CONNECTION WITH ANY ELECTION" OF CANDIDATES FOR FEDERAL OFFICE INTENDED
TO OUTLAW SUCH A PUBLICATION.  WE DO NOT THINK SEC. 313 REACHES SUCH A
USE OF CORPORATE OR LABOR ORGANIZATION FUNDS.  WE EXPRESS NO OPINION AS
TO THE SCOPE OF THIS SECTION WHERE DIFFERENT CIRCUMSTANCES EXIST AND
NONE UPON THE CONSTITUTIONALITY OF THE SECTION. 

OUR CONCLUSION LEADS US TO AFFIRM THE ORDER OF DISMISSAL UPON THE
GROUND HEREIN ANNOUNCED.  IT IS SO ORDERED. 

FN1  SEC. 304, LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 159,
ENACTED JUNE 23, 1947: 

"'SEC. 313.  IT IS UNLAWFUL FOR ANY NATIONAL BANK, OR ANY CORPORATION
ORGANIZED BY AUTHORITY OF ANY LAW OF CONGRESS, TO MAKE A CONTRIBUTION
OR EXPENDITURE IN CONNECTION WITH ANY ELECTION TO ANY POLITICAL OFFICE,
OR IN CONNECTION WITH ANY PRIMARY ELECTION OR POLITICAL CONVENTION OR
CAUCUS HELD TO SELECT CANDIDATES FOR ANY POLITICAL OFFICE, OR FOR ANY
CORPORATION WHATEVER, OR ANY LABOR ORGANIZATION TO MAKE A CONTRIBUTION
OR EXPENDITURE IN CONNECTION WITH ANY ELECTION AT WHICH PRESIDENTIAL
AND VICE PRESIDENTIAL ELECTORS OR A SENATOR OR REPRESENTATIVE IN, OR A
DELEGATE OR RESIDENT COMMISSIONER TO CONGRESS ARE TO BE VOTED FOR, OR
IN CONNECTION WITH ANY PRIMARY ELECTION OR POLITICAL CONVENTION OR
CAUCUS HELD TO SELECT CANDIDATES FOR ANY OF THE FOREGOING OFFICES, OR
FOR ANY CANDIDATE, POLITICAL COMMITTEE, OR OTHER PERSON TO ACCEPT OR
RECEIVE ANY CONTRIBUTION PROHIBITED BY THIS SECTION.  EVERY CORPORATION
OR LABOR ORGANIZATION WHICH MAKES ANY CONTRIBUTION OR EXPENDITURE IN
VIOLATION OF THIS SECTION SHALL BE FINED NOT MORE THAN $5,000; AND
EVERY OFFICER OR DIRECTOR OF ANY CORPORATION, OR OFFICER OF ANY LABOR
ORGANIZATION, WHO CONSENTS TO ANY CONTRIBUTION OR EXPENDITURE BY THE
CORPORATION OR LABOR ORGANIZATION, AS THE CASE MAY BE, IN VIOLATION OF
THIS SECTION SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED FOR NOT
MORE THAN ONE YEAR, OR BOTH.  FOR THE PURPOSES OF THIS SECTION "LABOR
ORGANIZATION" MEANS ANY ORGANIZATION OF ANY KIND, OR ANY AGENCY OR
EMPLOYEE REPRESENTATION COMMITTEE OR PLAN, IN WHICH EMPLOYEES
PARTICIPATE AND WHICH EXISTS FOR THE PURPOSE, IN WHOLE OR IN PART, OF
DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR DISPUTES, WAGES,
RATES OF PAY, HOURS OF EMPLOYMENT, OR CONDITIONS OF WORK.'"    THE
ADDITIONS OF 1947 ARE ITALICIZED. 

FN2  THORNHILL V. ALABAMA, 310 U.S. 88; WEST VIRGINIA STATE BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624, AND THOMAS V. COLLINS, 323 U.S.
516, WERE CITED. 

FN3  "(3)  THAT AT ALL THE TIMES HEREINAFTER MENTIONED, THE SAID
DEFENDANT CIO OWNED, COMPOSED, EDITED, AND PUBLISHED A WEEKLY
PERIODICAL KNOWN AS 'THE CIO NEWS', AND THE SAID DEFENDANT CIO PAID ALL
OF THE COSTS AND MADE ALL OF THE EXPENDITURES NECESSARY AND INCIDENTAL
TO THE PUBLICATION AND DISTRIBUTION OF SAID PERIODICAL, 'THE CIO NEWS',
FROM THE FUNDS OF THE SAID DEFENDANT CIO, INCLUDING THE SALARIES OF THE
EDITORS AND CONTRIBUTORS AND OTHER WRITERS OF TEXTS SET FORTH IN SAID
PERIODICAL INCLUDING ALSO THE COST OF THE PRINTING OF THE SAID
PERIODICAL AND THE COST OF THE DISTRIBUTION OF THE SAID PERIODICAL, AND
ALL SUCH PAYMENTS AND EXPENDITURES, INCLUDING THOSE REPRESENTING THE
COST AND DISTRIBUTION OF THE ISSUE OF SAID 'THE CIO NEWS' UNDER DATE OF
JULY 14, 1947, AND DESIGNATED AS VOLUME 10, NO. 28, WERE MADE BY SAID
DEFENDANT CIO AT WASHINGTON, IN THE DISTRICT OF COLUMBIA, AND WITHIN
THE JURISDICTION OF THIS COURT." 

(6) "(B)  THAT THE DEFENDANT CIO ALSO CAUSED ONE THOUSAND COPIES OF
THE ISSUE OF THE PUBLICATION, 'THE CIO NEWS', DATED JULY 14, 1947, AND
DESIGNATED AS THE ISSUE KNOWN AS VOLUME 10, NO. 28, TO BE SPECIALLY
MOVED AND TRANSPORTED FROM WASHINGTON, DISTRICT OF COLUMBIA, INTO THE
THIRD CONGRESSIONAL DISTRICT OF THE STATE OF MARYLAND, BY MAILING THE
SAID ONE THOUSAND EXTRA COPIES TO THE REGIONAL CIO DIRECTOR AT
BALTIMORE, MARYLAND, AND CAUSED THE FUNDS OF THE SAID DEFENDANT CIO TO
BE EXPENDED IN PRINTING, PACKAGING AND TRANSPORTATION OF SAID EXTRA
COPIES OF THE PERIODICAL, 'THE CIO NEWS', IN CONNECTION WITH THE
AFORESAID SPECIAL ELECTION." 

FN4  THE DIRECTION WAS IN THIS FORM:  "I THEREFORE HAVE DIRECTED AND
REQUESTED THE EDITOR OF THE CIO NEWS TO PUBLISH THIS STATEMENT,
INCLUDING THE FOLLOWING PARAGRAPHS, AND TO GIVE TO THIS ISSUE OF THE
CIO NEWS PROPER CIRCULATION AMONG THE MEMBERS OF CIO UNIONS IN THE CITY
OF BALTIMORE AND, PARTICULARLY, WITHIN THE CONGRESSIONAL DISTRICT IN
WHICH THIS ELECTION IS SCHEDULED TO TAKE PLACE." 

FN5  UNITED STATES V. KIRBY, 7 WALL.  482, 486-87; HAWAII V.
MANKICHI, 190 U.S. 197, 211; FORT SMITH & WESTERN R. CO. V. MILLS, 253
U.S. 206, 209; UNITED STATES V. KATZ, 271 U.S. 354, 359; UNITED STATES
V. GUARANTY TRUST CO., 280 U.S. 478, 485; KEIFER & KEIFER V. R.F.C.,
306 U.S. 381, 391, N. 4; UNITED STATES V. AMERICAN TRUCKING ASSNS., 310
U.S. 534, 544. 

FN6  BURNET V. HARMEL, 287 U.S. 103, 108; BOSTON SAND CO. V. UNITED
STATES, 278 U.S. 41. 

FN7  HARRISON V. NORTHERN TRUST CO., 317 U.S. 476, 479. 

FN8  SEE 40 CONG. REC. 96; 41 CONG. REC. 22. 

FN9  SEE HEARINGS BEFORE THE HOUSE COMMITTEE ON THE ELECTION OF THE
PRESIDENT, 59TH CONG., 1ST SESS. 76(1906); 40 CONG. REC. 96. 

IN 1909 THE CRIMINAL CODE OF THE UNITED STATES, WHICH CODIFIED,
REVISED AND AMENDED THE PENAL LAWS OF THE COUNTRY, WAS PASSED.  35
STAT. 1088.  THE ACT OF 1907 WAS REENACTED AS SEC. 83.  35 STAT. 1103. 

FN10  36 STAT. 822, AS AMENDED BY 37 STAT. 25. 

FN11  43 STAT. 1074.  "CONTRIBUTION" WAS DEFINED TO INCLUDE "A GIFT,
SUBSCRIPTION, LOAN, ADVANCE, OR DEPOSIT, OF MONEY, OR ANYTHING OF
VALUE, AND INCLUDES A CONTRACT, PROMISE, OR AGREEMENT, WHETHER OR NOT
LEGALLY ENFORCEABLE, TO MAKE A CONTRIBUTION."  43 STAT. 1071. 

FN12  43 STAT. 1070. 

FN13  57 STAT. 167.  "IT IS UNLAWFUL FOR ANY  ...  LABOR ORGANIZATION
TO MAKE A CONTRIBUTION IN CONNECTION WITH ANY ELECTION AT WHICH
PRESIDENTIAL AND VICE PRESIDENTIAL ELECTORS OR A SENATOR OR
REPRESENTATIVE IN, OR A DELEGATE OR RESIDENT COMMISSIONER TO CONGRESS
ARE TO BE VOTED FOR, OR FOR ANY CANDIDATE, POLITICAL COMMITTEE, OR
OTHER PERSON TO ACCEPT OR RECEIVE ANY CONTRIBUTION PROHIBITED BY THIS

FN14  57 STAT. 168.  "EXCEPT AS TO OFFENSES COMMITTED PRIOR TO SUCH
DATE, THE PROVISIONS OF THIS ACT AND THE AMENDMENTS MADE BY THIS ACT
SHALL CEASE TO BE EFFECTIVE AT THE END OF SIX MONTHS FOLLOWING THE
TERMINATION OF HOSTILITIES IN THE PRESENT WAR, AS PROCLAIMED BY THE
PRESIDENT, OR UPON THE DATE (PRIOR TO THE DATE OF SUCH PROCLAMATION) OF
THE PASSAGE OF A CONCURRENT RESOLUTION OF THE TWO HOUSES OF CONGRESS
STATING THAT SUCH PROVISIONS AND AMENDMENTS SHALL CEASE TO BE
EFFECTIVE." 

FN15  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON LABOR ON
H.R. 804, AND H.R. 1483, 78TH CONG., 1ST SESS. 2, 4; S. REP. NO. 101,
79TH CONG., 1ST SESS. 24. 

FN16  SEE HEARINGS ON H.R. 804 AND H.R. 1483, SUPRA, N. 15, 117-18,
133; 89 CONG. REC. 5334, 5792; 93 CONG. REC. 6440. 

FN17  SEE H.R. REP. NO. 2093, 78TH CONG., 2D SESS. 11; S. REP. NO.
101, SUPRA, N. 15, 57-59; H.R. REP. NO. 2739, 79TH CONG., 2D SESS. 39
40; S. REP. NO. 1, PART 2, 80TH CONG., 1ST SESS. 37, 38-39. 

FN18  SEE NOTE 17, SUPRA. 

FN19  THIS POINT WAS REPEATEDLY EMPHASIZED IN THE SENATE DEBATES. 
SEE 93 CONG. REC. 6436-39. 

FN20  UNITED STATES V. DELAWARE & HUDSON CO., 213 U.S. 366, 407-408: 

"IT IS ELEMENTARY WHEN THE CONSTITUTIONALITY OF A STATUTE IS
ASSAILED, IF THE STATUTE BE REASONABLY SUSCEPTIBLE OF TWO
INTERPRETATIONS, BY ONE OF WHICH IT WOULD BE UNCONSTITUTIONAL AND BY
THE OTHER VALID, IT IS OUR PLAIN DUTY TO ADOPT THAT CONSTRUCTION WHICH
WILL SAVE THE STATUTE FROM CONSTITUTIONAL INFIRMITY.  KNIGHTS TEMPLARS
INDEMNITY CO. V. JARMAN, 187 U.S. 197, 205.  AND UNLESS THIS RULE BE
CONSIDERED AS MEANING THAT OUR DUTY IS TO FIRST DECIDE THAT A STATUTE
IS UNCONSTITUTIONAL AND THEN PROCEED TO HOLD THAT SUCH RULING WAS
UNNECESSARY BECAUSE THE STATUTE IS SUSCEPTIBLE OF A MEANING, WHICH
CAUSES IT NOT TO BE REPUGNANT TO THE CONSTITUTION, THE RULE PLAINLY
MUST MEAN THAT WHERE A STATUTE IS SUSCEPTIBLE OF TWO CONSTRUCTIONS, BY
ONE OF WHICH GRAVE AND DOUBTFUL CONSTITUTIONAL QUESTIONS ARISE AND BY
THE OTHER OF WHICH SUCH QUESTIONS ARE AVOIDED, OUR DUTY IS TO ADOPT THE
LATTER.  HARRIMAN V. INTERSTATE COM. COMM., 211 U.S. 407." 

FEDERAL TRADE COMM'N V. AMERICAN TOBACCO CO., 264 U.S. 298, 307;
MISSOURI P.R. CO. V. BOONE, 270 U.S. 466, 471-72; CF. BLODGETT V.
HOLDEN, 275 U.S. 142, 147. 

FN21  COMPARE "FREE DISCUSSION OF THE PROBLEMS OF SOCIETY IS A
CARDINAL PRINCIPLE OF AMERICANISM - A PRINCIPLE WHICH ALL ARE ZEALOUS
TO PRESERVE."  PENNEKAMP V. FLORIDA, 328 U.S. 331, 346. 

"THE CASE CONFRONTS US AGAIN WITH THE DUTY OUR SYSTEM PLACES ON THIS
COURT TO SAY WHERE THE INDIVIDUAL'S FREEDOM ENDS AND THE STATE'S POWER
BEGINS.  CHOICE ON THAT BORDER, NOW AS ALWAYS DELICATE, IS PERHAPS MORE
SO WHERE THE USUAL PRESUMPTION SUPPORTING LEGISLATION IS BALANCED BY
THE PREFERRED PLACE GIVEN IN OUR SCHEME TO THE GREAT, THE INDISPENSABLE
DEMOCRATIC FREEDOMS SECURED BY THE FIRST AMENDMENT."  THOMAS V.
COLLINS, 323 U.S. 516, 529-30. 

"FOR THE FIRST AMENDMENT DOES NOT SPEAK EQUIVOCALLY.  IT PROHIBITS
ANY LAW 'ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS.'  IT MUST BE
TAKEN AS A COMMAND OF THE BROADEST SCOPE THAT EXPLICIT LANGUAGE, READ
IN THE CONTEXT OF A LIBERTY-LOVING SOCIETY, WILL ALLOW."  BRIDGES V.
CALIFORNIA, 314 U.S. 252, 263. 

FN22  93 CONG. REC. 6436, 6437, 6439. 

FN23  SEE 93 CONG. REC. 6437-40. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IN A GOVERNMENT OPERATING UNDER CONSTITUTIONAL LIMITATIONS THERE ARE
OBVIOUS ADVANTAGES IN KNOWING AT ONCE THE LEGAL POWERS OF THE
GOVERNMENT.  THE DESIRE TO SECURE THESE ADVANTAGES EXPLAINS THE STRONG
EFFORTS OF SOME OF THE ABLEST MEMBERS OF THE PHILADELPHIA CONVENTION TO
ASSOCIATE THE JUDICIARY THROUGH A COUNCIL OF REVISION IN THE
LEGISLATIVE PROCESS.  FN1  THE EFFORTS FAILED, BECAUSE THE
DISADVANTAGES OF SUCH A ROLE BY THE JUDICIARY WERE DEEMED GREATER THAN
THE ADVANTAGES.  AND IT CANNOT BE TOO OFTEN RECALLED THAT THE FIRST
CHIEF JUSTICE AND HIS ASSOCIATES FELT CONSTRAINED TO WITHHOLD EVEN FROM
THE FATHER OF HIS COUNTRY ANSWERS TO QUESTIONS REGARDING WHICH
WASHINGTON WAS MOST ANXIOUS TO HAVE ILLUMINATION FROM THE SUPREME
COURT, PERTAINING AS THEY DID TO THE PRESIDENT'S POWERS DURING THE
NAPOLEONIC CONFLICT.  SEE 3 JOHNSTON, CORRESPONDENCE AND PUBLIC PAPERS
OF JOHN JAY (1891) 486-89, AND 10 SPARKS, WRITINGS OF WASHINGTON (1847)
542-45; AND SEE THAYER, LEGAL ESSAYS (1908) 53-54. 

ACCORDINGLY, THE FACT THAT IT WOULD BE CONVENIENT TO THE PARTIES AND
THE PUBLIC TO KNOW PROMPTLY WHETHER A STATUTE IS VALID, HAS NOT
AFFECTED "RIGID INSISTENCE" ON LIMITING ADJUDICATION TO ACTUAL "CASES"
AND "CONTROVERSIES."  TO THAT END THE COURT HAS DEVELOPED "FOR ITS OWN
GOVERNANCE IN THE CASES CONFESSEDLY WITHIN ITS JURISDICTION, A SERIES
OF RULES UNDER WHICH IT HAS AVOIDED PASSING UPON A LARGE PART OF ALL
THE CONSTITUTIONAL QUESTIONS PRESSED UPON IT FOR DECISION."  MR.
JUSTICE BRANDEIS, CONCURRING, IN ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 345, 346.  SEE ALSO, MORE RECENTLY, ALABAMA
STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450; ALMA MOTOR CO. V.
TIMKEN-DETROIT AXLE CO., 329 U.S. 129; UNITED PUBLIC WORKERS OF AMERICA
V. MITCHELL, 330 U.S. 75; RESCUE ARMY V. MUNICIPAL COURT, 331 U.S.
549. 

A CASE OR CONTROVERSY IN THE SENSE OF A LITIGATION RIPE AND RIGHT FOR
CONSTITUTIONAL ADJUDICATION BY THIS COURT IMPLIES A REAL CONTEST - AN
ACTIVE CLASH OF VIEWS, BASED UPON AN ADEQUATE FORMULATION OF ISSUES, SO
AS TO BRING A CHALLENGE TO THAT WHICH CONGRESS HAS ENACTED INESCAPABLY
BEFORE THE COURT.  THE MATTER WAS THUS PUT BY AN AUTHORITATIVE
COMMENTATOR:  "THE DETERMINATION OF CONSTITUTIONAL QUESTIONS HAS BEEN
ASSOCIATED WITH THE STRICTLY JUDICIAL FUNCTION AND SO FAR AS POSSIBLE
HAS BEEN REMOVED FROM THE CONTENTIONS OF POLITICS.  THESE QUESTIONS
HAVE BEEN DECIDED AFTER FULL ARGUMENT IN CONTESTED CASES AND IT IS ONLY
WITH THE LIGHT AFFORDED BY A REAL CONTEST THAT OPINIONS ON QUESTIONS OF
THE HIGHEST IMPORTANCE CAN SAFELY BE RENDERED."  CHARLES EVANS HUGHES,
THE SUPREME COURT OF THE UNITED STATES (1928) 32.  TIME HAS NOT
LESSENED THE FORCE OF THE REASON FOR THIS REQUIREMENT OF ABSTENTION AS
INDICATED BY CHIEF JUSTICE MARSHALL: "NO QUESTIONS CAN BE BROUGHT
BEFORE A JUDICIAL TRIBUNAL OF GREATER DELICACY THAN THOSE WHICH INVOLVE
THE CONSTITUTIONALITY OF A LEGISLATIVE ACT.  IF THEY BECOME
INDISPENSABLY NECESSARY TO THE CASE, THE COURT MUST MEET AND DECIDE
THEM; BUT IF THE CASE MAY BE DETERMINED ON OTHER POINTS, A JUST RESPECT
FOR THE LEGISLATURE REQUIRES, THAT THE OBLIGATION OF ITS LAWS SHOULD
NOT BE UNNECESSARILY AND WANTONLY ASSAILED."  EX PARTE RANDOLPH, 20
FED. CAS. NO. 11,558 AT 254, 2 BROCK.  447, 478-79(C.C.D. VA. 1833). 

IN ORDER THAT A CONTEST MAY FAIRLY INVITE ADJUDICATION IT IS NOT
NECESSARY THAT THE PARTIES SHOULD BE PERSONALLY INIMICAL TO ONE
ANOTHER.  ON THE OTHER HAND, THE FACT THAT THE OUTWARD FORM OF A
LITIGATION HAS NOT BEEN CONTRIVED BY PRE-ARRANGEMENT OF THE PARTIES
DOES NOT PRECLUDE WANT OF A REAL CONTEST WHICH IS ESSENTIAL TO THIS
COURT'S EXERCISE OF ITS FUNCTION, ONE OF "GREAT GRAVITY AND DELICACY,"
IN PASSING UPON THE VALIDITY OF AN ACT OF CONGRESS.  ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, SUPRA, AT 345 AND CASES CITED IN FOOTNOTE
3.  THIS PREREQUISITE MAY BE LACKING THOUGH THERE BE ENTIRE
DISINTERESTEDNESS ON BOTH SIDES IN THEIR DESIRE TO SECURE AT THE
EARLIEST POSSIBLE MOMENT AN ADJUDICATION ON CONSTITUTIONAL POWER.  IT
MAY BE LACKING PRECISELY BECAUSE THE ISSUES WERE FORMULATED SO BROADLY
AS TO BRING GRATUITOUSLY BEFORE THE COURT THAT FOR WHICH THERE IS NO
NECESSITY FOR DECISION, OR BECAUSE THEY INVITE FORMULATION OF A RULE OF
CONSTITUTIONAL LAW BROADER THAN IS REQUIRED BY THE PRECISE FACTS OF THE
SITUATION OR THE TERMS OF THE ASSAILED LEGISLATION.  SEE LIVERPOOL,
N.Y. AND PHILA.  S.S. CO. V. COMMISSIONERS OF EMIGRATION, 113 U.S. 33,
39; SEE ALSO, STATEMENT OF THE UNITED STATES OF AMERICA AS AMICUS
CURIAE, IN BURCO, INC. V. WHITWORTH, 297 U.S. 724; GOVERNMENT'S BRIEF
IN LANDIS V. NORTH AMERICAN CO., 299 U.S. 248. 

WE ARE CONCERNED HERE NOT WITH DEROGATORY IMPLICATIONS OF COLLUSION,
NOR HAVE WE A CASE OF MOOTNESS WITH ITS TECHNICAL MEANING OF A NON
EXISTENT CONTROVERSY.  THE CIRCUMSTANCES BRING THE PRESENT RECORD
WITHIN THOSE CONSIDERATIONS WHICH HAVE LED THIS COURT IN THE PAST "FOR
ITS OWN GOVERNANCE IN THE CASES CONFESSEDLY WITHIN ITS JURISDICTION" TO
AVOID PASSING ON GRAVE CONSTITUTIONAL QUESTIONS BECAUSE THE QUESTIONS
INVOLVING THE POWER OF CONGRESS COME HERE NOT SO SHAPED BY THE RECORD
AND BY THE PROCEEDINGS BELOW AS TO BRING THOSE POWERS BEFORE THIS COURT
AS LEANLY AND AS SHARPLY AS JUDICIAL JUDGMENT UPON AN EXERCISE OF
CONGRESSIONAL POWER REQUIRES. 

THIS CASE IS HERE UNDER THE UNIQUE JURISDICTION OF THE CRIMINAL
APPEALS ACT OF 1907, AS AMENDED, WHEREBY DECISIONS OF DISTRICT COURTS
RAISE ALMOST ABSTRACT QUESTIONS OF LAW REGARDING THE INVALIDITY OR
CONSTRUCTION OF CRIMINAL STATUTES, IN THAT THEY DO NOT COME HERE IN THE
SETTING OF NORMAL ADJUDICATIONS ON THE MERITS OF A CONTROVERSY. 
COMPARE UNITED STATES V. PETRILLO, 332 U.S. 1, WITH THE SUBSEQUENT
ADJUDICATION ON THE MERITS IN UNITED STATES V. PETRILLO, 75 F.SUPP. 
176.  IT IS MOST IMPORTANT THAT SUCH A DECISION RESULT FROM DUE
WEIGHING OF THE CONSIDERATIONS WHICH ALONE CAN JUSTIFY THE INVALIDATION
OF AN ACT OF CONGRESS.  THIS IMPLIES THAT THERE BE PRESENTED TO A
DISTRICT COURT THE MOST EFFECTIVE AND THE LEAST MISAPPREHENDING LEGAL
GROUNDS FOR SUPPORTING WHAT CONGRESS HAS ENACTED, WHILE AT THE SAME
TIME CONSTITUTIONAL ADJUDICATION IS SEDULOUSLY RESISTED BY PRESENTING
TO THE DISTRICT COURT ALTERNATIVE CONSTRUCTIONS OF WHAT CONGRESS HAS
WRITTEN SO AS TO AVOID, IF FAIRLY POSSIBLE, INVALIDATION OF THE
STATUTE.  THE DECISION OF THE DISTRICT COURT IN THIS CASE COMES TO US
WANTING IN BOTH RESPECTS. 

ACCORDING TO THE DISTRICT COURT, THE GOVERNMENT CONCEDED THAT SEC.
304 OF THE TAFT-HARTLEY ACT IS AN ABRIDGMENT OF "RIGHTS GUARANTEED BY
THE FIRST AMENDMENT" BUT CONTENDED THAT "CONGRESS HAS POWER UNDER
ARTICLE I, SECTION 4, OF THE CONSTITUTION TO ABRIDGE FIRST AMENDMENT
RIGHTS IF IT CONSIDERS SUCH A COURSE NECESSARY IN MAINTAINING THE
PURITY AND FREEDOM OF ELECTIONS."  THIS REPRESENTATION OF THE
GOVERNMENT'S ARGUMENT BELOW IS MADE IN THE OPINION OF THE DISTRICT
COURT NOT ONCE, NOT TWICE, BUT THRICE.  FN2  AT THE BAR OF THIS COURT
IT WAS URGED ON BEHALF OF THE GOVERNMENT THAT THE DISTRICT COURT
MISCONCEIVED THE ARGUMENTS OF THE GOVERNMENT, THAT WHAT THE DISTRICT
COURT ATTRIBUTED TO THE GOVERNMENT IS NOT WHAT THE GOVERNMENT ARGUED
BELOW.  BUT ORDINARY ENGLISH WORDS HAVE LOST ALL MEANING IF THE
DISTRICT JUDGE DOES NOT SAY UNEQUIVOCALLY AND THREE TIMES THAT THAT IS
WHAT THE GOVERNMENT HAS ARGUED.  IT CANNOT BE WHISTLED AWAY AS A GAUCHE
MANNER OF SAYING THAT INASMUCH AS UTTERANCE MAY UNDER CERTAIN
CIRCUMSTANCES BE RESTRICTED, SEC. 304 IS NOT IN VIOLATION OF THE FIRST
AMENDMENT.  THAT MAY HAVE BEEN THE ARGUMENT PUT TO THE COURT BELOW, BUT
PLAINLY ENOUGH THAT COURT DID NOT SO UNDERSTAND IT.  WHO IS TO SAY HOW
THE LOWER COURT WOULD HAVE DEALT WITH THE PROBLEM OF CONSTITUTIONALITY
BEFORE IT, IF THE ARGUMENT HAD BEEN PITCHED DIFFERENTLY THAN IN THE WAY
IN WHICH IT REACHED THE COURT, OR IF THE COURT'S MISAPPREHENSION HAD
BEEN CORRECTED?  NO EFFORT WAS MADE, BY THE FAMILIAR PROCESS OF A
PETITION FOR REHEARING OR FOR A CLARIFICATION OF THE COURT'S OPINION,
TO SEE TO IT THAT THE LOWER COURT MANIFESTED AN UNDERSTANDING OF THE
GOVERNMENT'S CONTENTIONS BY NOT ATTRIBUTING AN ERRONEOUS POSITION TO
THE GOVERNMENT.  (SEE, FOR INSTANCE, PETITION FOR REHEARING IN MORGAN
V. UNITED STATES, 304 U.S. 1, 23.) 

AGAIN, THE DEFENDANTS DID NOT URGE BELOW, AS IS ORDINARILY THE WAY OF
DEFENDANTS, A CONSTRUCTION OF THE STATUTE WHICH WOULD AFFORD THEM THE
RIGHTS THEY CLAIM - BUT WOULD SECURE THOSE RIGHTS NOT BY DECLARING AN
ACT OF CONGRESS UNCONSTITUTIONAL BUT BY AN APPROPRIATE RESTRICTION OF
ITS SCOPE.  ON ITS OWN MOTION, THIS COURT NOW GIVES A CONSTRUCTION TO
THE STATUTE WHICH TAKES THE CONDUCT FOR WHICH DEFENDANTS WERE INDICTED
OUT OF THE SCOPE OF THE STATUTE WITHOUT BRINGING THE COURT INTO
CONFLICT WITH CONGRESS.  WHO CAN BE CONFIDENT THAT SUCH A CONSTRUCTION,
WHICH SALVAGES THE STATUTE AND AT THE SAME TIME SAFEGUARDS THE
CONSTITUTIONAL RIGHTS OF THE DEFENDANTS, MIGHT NOT HAVE COMMENDED
ITSELF TO THE DISTRICT COURT AND EVENTUALLY BROUGHT A DIFFERENT CASE,
IF ANY, BEFORE THIS COURT FOR REVIEW? 

I CANNOT ESCAPE THE CONCLUSION THAT IN A NATURAL EAGERNESS TO ELICIT
FROM THIS COURT A DECISION AT THE EARLIEST POSSIBLE MOMENT, EACH SIDE
WAS AT LEAST UNWITTINGLY THE ALLY OF THE OTHER IN BRINGING BEFORE THIS
COURT FAR-REACHING QUESTIONS OF CONSTITUTIONALITY UNDER CIRCUMSTANCES
WHICH ALL THE BEST TEACHINGS OF THIS COURT ADMONISH US NOT TO
ENTERTAIN. 

BUT SINCE MY BRETHREN FIND THAT THE CASE CALLS FOR ADJUDICATION, I
JOIN IN THE COURT'S OPINION.  I DO SO BECAUSE OF ANOTHER RULE OF
CONSTITUTIONAL ADJUDICATION WHICH REQUIRES US TO GIVE A STATUTE AN
ALLOWABLE CONSTRUCTION THAT FAIRLY AVOIDS A CONSTITUTIONAL ISSUE.  SEE
MY DISSENTING OPINION IN SHAPIRO V. UNITED STATES, ANTE, P. 36, DECIDED
THIS DAY. 

FN1 SEE 1 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF
1787(1911) 21, 28, 94, 97 ET SEQ., 105, 107, 109, 110, 111 ET SEQ.,
131, 138, 141, 144-45; 2 ID. 71, 73 ET SEQ., 294-95, 298 ET SEQ. 

FN2  1.  "THE GOVERNMENT CONCEDES THAT RIGHTS GUARANTEED BY THE FIRST
AMENDMENT ARE ABRIDGED BY THE PROHIBITION AGAINST EXPENDITURES BY LABOR
ORGANIZATIONS IN CONNECTION WITH ELECTIONS; BUT IT SAYS THAT CONGRESS
HAS POWER UNDER ARTICLE I, SECTION 4, OF THE CONSTITUTION TO ABRIDGE
FIRST AMENDMENT RIGHTS IF IT CONSIDERS SUCH A COURSE NECESSARY IN
MAINTAINING THE PURITY AND FREEDOM OF ELECTIONS." 

"THUS THE COURT IS CONFRONTED WITH THE NECESSITY OF PASSING ON THE
VALIDITY OF SECTION 304 OF THE ACT, INSOFAR AS IT RELATES TO
EXPENDITURES BY LABOR ORGANIZATIONS IN CONNECTION WITH FEDERAL
ELECTIONS." 

2.  "IT IS INSISTED BY THE GOVERNMENT THAT CONGRESS COULD ABRIDGE THE
FREEDOMS GUARANTEED BY THE FIRST AMENDMENT (WHICH THE GOVERNMENT
CONCEDES WAS DONE HERE) BECAUSE OF ITS CONSTITUTIONAL CONTROL OVER THE
MANNER OF HOLDING ELECTIONS, AND ITS CONSEQUENT POWER TO PREVENT
CORRUPTION THEREIN, AND TO SECURE CLEAN ELECTIONS." 

3.  "IN SUPPORT OF ITS ARGUMENT THAT CONGRESSIONAL CONTROL OVER
ELECTIONS MAY BE EXERCISED IN ABRIDGMENT OF RIGHTS PROTECTED BY THE
FIRST AMENDMENT, THE GOVERNMENT POINTS TO THE CASE OF UNITED PUBLIC
WORKERS V. MITCHELL, 330 U.S. 75." 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS AND MR. JUSTICE MURPHY JOIN, CONCURRING IN THE RESULT. 

IF SEC. 313 AS AMENDED  FN1  CAN BE TAKEN TO COVER THE COSTS OF ANY
POLITICAL PUBLICATION BY A LABOR UNION, I THINK IT COMPREHENDS THE
"EXPENDITURES" MADE IN THIS CASE.  BY READING THEM OUT OF THE SECTION,
IN ORDER NOT TO PASS UPON ITS VALIDITY, THE COURT IN EFFECT ABDICATES
ITS FUNCTION IN THE GUISE OF APPLYING THE POLICY AGAINST DECIDING
QUESTIONS OF CONSTITUTIONALITY UNNECESSARILY.  FN2  I ADHERE TO THAT
POLICY.  BUT I DO NOT THINK IT JUSTIFIES INVASION OF THE LEGISLATIVE
FUNCTION BY REWRITING OR EMASCULATING THE STATUTE.  THIS IN MY JUDGMENT
IS WHAT HAS BEEN DONE IN THIS INSTANCE.  ACCORDINGLY I DISSENT FROM THE
CONSTRUCTION GIVEN TO THE STATUTE AND FROM THE MISAPPLICATION OF THE
POLICY.  I ALSO THINK THE STATUTE PATENTLY INVALID AS APPLIED IN THESE
CIRCUMSTANCES. 

                                  I. 

THE COURT'S INTERPRETATION OF THE SECTION AND THE INDICTMENT ARE NOT
ENTIRELY CLEAR TO ME.  BUT, AS I UNDERSTAND THE RULING, IT IS ONLY THAT
SEC. 313 DOES NOT FORBID LABOR UNIONS TO TAKE PART IN PENDING ELECTIONS
FN3  BY PUBLISHING AND CIRCULATING NEWSPAPERS IN REGULAR COURSE AMONG
THEIR MEMBERSHIP, ALTHOUGH THE COSTS OF PUBLICATION ARE PAID FROM THE
UNION'S GENERAL FUNDS REGARDLESS OF THEIR SOURCE, I.E., WHETHER FROM
SUBSCRIPTIONS, ADVERTISING REVENUES AND RETURNS FROM PER COPY SALES, OR
FROM UNION DUES AND OTHER SOURCES. 

THE LINE OF COVERAGE IS MARKED WITHOUT REFERENCE TO THE SOURCE FROM
WHICH THE UNION DERIVES THE FUNDS SO EXPENDED,  FN4  BUT BY WHETHER
OTHERS THAN MEMBERS OF THE UNION RECEIVE FREE COPIES OF THE
PUBLICATION; AND BY WHETHER THE PUBLICATION IS "IN REGULAR COURSE" OR
ONLY IN CASUAL OR OCCASIONAL DISTRIBUTIONS.  APPARENTLY, IN THE LATTER
EVENT, CIRCULATION LIMITED TO THE MEMBERSHIP WOULD FALL WITHIN THE
PROHIBITION AS WELL AS FREE (AND PERHAPS ALSO PAID) DISTRIBUTION
OUTSIDE THAT CIRCLE. 

THE CONSTRUCTION THEREFORE COMES DOWN TO FINDING THAT CONGRESS DID
NOT INTEND TO FORBID THESE EXPENDITURES, THOUGH MADE FROM UNION FUNDS,
SINCE THEY WERE MADE:  (1) TO SUSTAIN THE PUBLICATION OF THE UNION'S
POLITICAL VIEWS; (2) IN THE REGULAR COURSE OF PUBLISHING AND
DISTRIBUTING A UNION NEWSPAPER; (3) WITH DISTRIBUTION LIMITED
SUBSTANTIALLY  FN5  TO UNION MEMBERS AND NOT INCLUDING OUTSIDERS.  IT
IS BECAUSE APPLYING SEC. 313 TO THIS TYPE OF EXPENDITURE WOULD RAISE
"THE GRAVEST DOUBT" OF THE SECTION'S CONSTITUTIONALITY THAT THE COURT
HOLDS THE SECTION INAPPLICABLE. 

IF SUCH AN INTERPRETATION WERE TENABLY SUPPORTABLE ON ANY OTHER
BASIS, I SHOULD BE IN ACCORD WITH THIS HAPPY SOLUTION.  BUT NEITHER THE
LANGUAGE OF THE SECTION NOR ITS HISTORY AFFORDS SUCH A BASIS, UNLESS
INDEED IT MAY BE THAT THE WORDING IS SO BROAD, COMPREHENSIVE, AND
INDEFINITE THAT ANY POSSIBLE CONSTRUCTION WHICH WOULD APPLY TO A
UNION'S PUBLICATION OF ITS POLITICAL VIEWS WOULD BE SUBJECT TO EQUALLY
GRAVE CONSTITUTIONAL DOUBT, AND THEREFORE WAS NOT INTENDED TO BE
COVERED. 

INDEED, SO FAR AS THE PRESENT OPINION CONCLUDES, THAT MAY BE THE
CASE.  FOR IT DOES NOT HOLD THAT DISTRIBUTION OUTSIDE THE CIRCLE OF
MEMBERSHIP, EVEN IN REGULAR COURSE, IS FORBIDDEN OR, IF SO, THE
PROHIBITION WOULD BE CONSTITUTIONALLY PERMISSIBLE.  NEITHER DOES IT
RULE THAT EITHER CONSEQUENCE WOULD FOLLOW FROM CASUAL OR OCCASIONAL
DISTRIBUTION WITHIN OR WITHOUT THAT CIRCLE.  AT THE MOST IT IS
INDICATED THAT THE SECTION MORE PROBABLY OR POSSIBLY COVERS THOSE
SITUATIONS THAN THE ONE NOW ELIMINATED.  BUT THERE SEEMS TO BE NO
CORRESPONDING INTIMATION THAT THE SECTION WOULD BE VALID IN SUCH
COVERAGE. 

IN FACT THE OPINION POINTS TO NO SITUATION, RELATING TO A UNION'S
EXPRESSION OF POLITICAL VIEWS, WHICH CERTAINLY COULD BE TAKEN AS
INCLUDED AND VALIDLY SO.  THIS, OF COURSE, COMES DOWN TO EXCLUDING THE
PRESENT CIRCUMSTANCES, NOT TO SAVE THE STATUTE BECAUSE THERE ARE OTHER
APPLICATIONS CLEARLY AND VALIDLY COVERED, BUT BECAUSE THERE ARE SUCH
APPLICATIONS WHICH MAY OR MAY NOT BE COVERED AND WHICH, IF COVERED, MAY
BE EQUALLY OR NEARLY AS DOUBTFUL CONSTITUTIONALLY.  SUCH A COURSE OF
CONSTRUCTION, IF FOLLOWED IN EACH INSTANCE OF INDICTMENT ON PARTICULAR
FACTS, WOULD MEAN THAT THE SECTION COULD NOT APPLY IN ANY INSTANCE OF
PUBLICATION, BECAUSE EACH WOULD PRESENT "THE GRAVEST DOUBT" OF
CONSTITUTIONALITY AND THEREFORE WOULD BE EXCLUDED. 

THE LANGUAGE OF SEC. 313, AS AMENDED, IS SWEEPINGLY COMPREHENSIVE. 
INSOFAR AS PRESENTLY PERTINENT IT FORBIDS LABOR UNIONS AS WELL AS
CORPORATIONS "  ...  TO MAKE A CONTRIBUTION OR EXPENDITURE IN
CONNECTION WITH ANY ELECTION AT WHICH  ...  (THE DESIGNATED FEDERAL
OFFICERS)  FN6 ARE TO BE VOTED FOR," INCLUDING PRIMARIES, CONVENTIONS
OR CAUCUSES HELD TO SELECT SUCH CANDIDATES. 

THE CRUCIAL WORDS ARE "EXPENDITURE" AND "IN CONNECTION WITH." 
LITERALLY THEY COVER ANY EXPENDITURE WHATEVER RELATING AT ANY RATE TO A
PENDING ELECTION, AND POSSIBLY TO PROSPECTIVE ELECTIONS OR ELECTIONS
ALREADY HELD.  THE BROAD DICTIONARY MEANING OF THE WORD "EXPENDITURE"
TAKES ADDED COLOR FROM ITS CONTEXT WITH "CONTRIBUTION."  THE
LEGISLATIVE HISTORY IS CLEAR THAT IT WAS ADDED BY THE 1947 AMENDMENT
EXPRESSLY TO COVER SITUATIONS NOT PREVIOUSLY INCLUDED WITHIN THE
ACCEPTED LEGISLATIVE INTERPRETATION OF "CONTRIBUTION."  FN7  THE
COLORATION ADDED IS THEREFORE NOT RESTRICTIVE; IT IS EXPANSIVE.  SEE
NOTE 9.  AND IN THE ABSENCE OF ANY INDICATION OF RESTRICTION, LIGHT ON
THE SCOPE OF COVERAGE CAN BE FOUND ONLY IN THE LEGISLATIVE HISTORY. 

WHEN ONE TURNS TO THAT SOURCE, HE FINDS A VERITABLE FOG OF
CONTRADICTIONS RELATING TO SPECIFIC POSSIBLE APPLICATIONS,  FN8
CONTRADICTIONS NECESSARILY BRED AMONG BOTH PROPONENTS AND OPPONENTS OF
THE AMENDMENT FROM THE BREADTH AND INDEFINITENESS OF THE LITERAL SCOPE
OF THE LANGUAGE USED.  BUT IN ONE IMPORTANT RESPECT THE HISTORY AGAIN
IS CLEAR, NAMELY, THAT THE SPONSORS AND PROPONENTS HAD IN MIND THREE
PRINCIPAL OBJECTIVES. 

THESE WERE:  (1) TO REDUCE WHAT HAD COME TO BE REGARDED IN THE LIGHT
OF RECENT EXPERIENCE AS THE UNDUE AND DISPROPORTIONATE INFLUENCE OF
LABOR UNIONS UPON FEDERAL ELECTIONS; (2) TO PRESERVE THE PURITY OF SUCH
ELECTIONS AND OF OFFICIAL CONDUCT ENSUING FROM THE CHOICES MADE IN THEM
AGAINST THE USE OF AGGREGATED WEALTH BY UNION AS WELL AS CORPORATE
ENTITIES; AND (3) TO PROTECT UNION MEMBERS HOLDING POLITICAL VIEWS
CONTRARY TO THOSE SUPPORTED BY THE UNION FROM USE OF FUNDS CONTRIBUTED
BY THEM TO PROMOTE ACCEPTANCE OF THOSE OPPOSING VIEWS.  FN9  SHORTLY,
THESE OBJECTS MAY BE DESIGNATED AS THE "UNDUE INFLUENCE," "PURITY OF
ELECTIONS," AND "MINORITY PROTECTION" OBJECTIVES.  THEY ARE OBVIOUSLY
INTERRELATED, BUT NOT IDENTICAL.  AND THE DIFFERENCES AS WELL AS THEIR
COMBINATION BECOME IMPORTANT FOR DECIDING THE SCOPE OF THE SECTION'S
COVERAGE AND ITS VALIDITY IN SPECIFIC APPLICATION. 

WITH THOSE OBJECTS IN MIND AS THROWING LIGHT ON THE SECTION'S
COVERAGE UNDER THE BROAD LANGUAGE EMPLOYED, WE TURN TO THE LEGISLATIVE
HISTORY ON THAT SUBJECT.  THE GOVERNMENT CENTERS THE DISCUSSION, BOTH
ON COVERAGE AND ON CONSTITUTIONALITY, AROUND THE "MINORITY PROTECTION"
OBJECTIVE.  AND THE LEGISLATIVE DISCUSSION, TAKING PLACE ALMOST
EXCLUSIVELY IN THE SENATE AND DOMINATED LARGELY BY THE LABOR MANAGEMENT
ACT'S SPONSOR IN THAT BODY, ALSO TOOK THIS PURPOSE AS THE CENTRAL
THEME.  FN10 

THE DISCUSSION RANGED AROUND A GREAT VARIETY OF POSSIBLE SPECIFIC
APPLICATIONS,  FN11  WITH CONCENTRATION UPON BOTH THE SCOPE AND THE
VALIDITY OF THE PROVISION.  THE SENATE SPONSOR RESPONDED TO A FLOOD OF
INQUIRIES WITH CANDOR AND SO FAR AS POSSIBLE WITH PRECISION AND
CERTAINTY CONCERNING PARTICULAR SITUATIONS UNDER HIS VIEW OF THE
EQUALLY CANDID IN STATING DOUBT OR DISABILITY TO GIVE POSITIVE
OPINIONS, AT TIMES IN THE ABSENCE OF FURTHER FACTS.  FN13 

WHAT IS MOST SIGNIFICANT FOR THE QUESTION OF COVERAGE, HOWEVER, AND
FOR THE COURT'S CONSTRUCTION IN THIS CASE, IS THE FACT THAT IN MAKING
HIS RESPONSES TO THE NUMEROUS AND VARIED INQUIRIES HE TESTED COVERAGE
INVARIABLY OR NEARLY SO BY APPLYING THE VERY CRITERION THE COURT NOW
DISCARDS, NAMELY, THE SOURCE OF THE FUNDS RECEIVED AND EXPENDED IN
MAKING THE POLITICAL PUBLICATION. 

THAT IS, IN HIS VIEW THAT THE PRIMARY PURPOSE OF THE AMENDMENT WAS
"MINORITY PROTECTION," THE LINE DRAWN BY THE SECTION WAS BETWEEN
EXPENDITURE OF FUNDS RECEIVED BY THE UNION EXPRESSLY FOR THE PURPOSE OF
THE PUBLICATION AND EARMARKED FOR THAT PURPOSE AND, ON THE OTHER HAND,
EXPENDING FUNDS NOT SO LIMITED BY THE PERSON OR SOURCE SUPPLYING THEM. 
FN14  THERE WAS STRONG OPPOSITION TO THE PROVISION AND SPIRITED
EXCHANGE BETWEEN PROPONENTS AND CRITICS OF THE MEASURE CONCERNING ITS
WISDOM AND ITS CONSTITUTIONALITY.  BUT THERE WAS NO DISAGREEMENT AMONG
THEM THAT THE SPONSOR'S TEST WAS THE INTENDED CRITERION.  INDEED THE
LEGISLATIVE DISCUSSION WAS STATED EXPLICITLY TO BE FOR THE PURPOSE OF
MAKING PLAIN BEYOND ANY QUESTION THAT THIS WAS SO.  FN15  ALTHOUGH
THERE WERE MANY DIFFERENCES OVER WHETHER SPECIFIED TYPES OF ACTIVITY
WOULD FALL UNDER THE CRITERION'S BAN AND DOUBTS CONCERNING OTHERS, THE
PURPOSE SUCCEEDED.  THERE WAS NO DIVERGENCE FROM THE VIEW THAT
POLITICAL COMMENT BY A UNION PAPER OR OTHER INSTRUMENTALITY USING
NONSEGREGATED FUNDS WAS WITHIN THE SECTION'S COVERAGE.  WHEN THIS WAS
THE SOURCE OF THE EXPENDITURE IT VIOLATED THE INTENDED PROHIBITION OF
THE SECTION WHETHER OR NOT THE PUBLICATION WAS IN REGULAR COURSE AND
WHETHER OR NOT IT WENT TO OTHERS THAN MEMBERS AND PERSONS ACCUSTOMED TO
RECEIVE IT.    IF THEREFORE THE SPONSOR'S STEADFAST VIEW CAN HAVE
WEIGHT TO DETERMINE THE COVERAGE OF A STATUTE INDEFINITE IN ITS TERMS,
WRIGHT V. VINTON BRANCH, 300 U.S. 440; UNITED STATES V. DICKERSON, 310
U.S. 554; UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534;
UNITED STATES V. WRIGHTWOOD DAIRY CO., 315 U.S. 110, THIS CASE IS
BROUGHT SQUARELY WITHIN THE PROHIBITION OF SEC. 313.  THIS IS
CONCLUSIVELY ESTABLISHED BY THE EXCERPTS FROM THE LEGISLATIVE
DISCUSSION QUOTED IN THE COURT'S OPINION.  OTHERS TO THE SAME EFFECT
ARE ADDED TO THIS ONE AS AN APPENDIX. 

MOREOVER IN HIS MESSAGE VETOING THE LABOR MANAGEMENT RELATIONS ACT OF
1947 THE PRESIDENT STATED THAT SEC. 313 "WOULD PREVENT THE ORDINARY
UNION NEWSPAPER FROM COMMENTING FAVORABLY OR UNFAVORABLY UPON
CANDIDATES OR ISSUES IN NATIONAL ELECTIONS."  H.R. DOC. NO. 334, 80TH
CONG., 1ST SESS. 9.  IN THE DEBATE PRELIMINARY TO THE OVERRIDING OF THE
VETO, NONE OF THE LEGISLATORS IN CHARGE OF THE MEASURE GAVE ANY
INDICATION THAT THEY DIFFERED WITH THE PRESIDENT'S INTERPRETATION.  NOR
COULD THEY HAVE DIFFERED, FOR THE STATEMENT IN THE VETO MESSAGE GAVE
EFFECT TO THEIR CLEARLY EXPRESSED VIEWS AS TO THE SECTION'S COVERAGE IN
THE SPECIFIC INSTANCE STATED. 

THUS, IN THE FACE OF THE LEGISLATIVE JUDGMENT, REITERATED AFTER VETO,
AND OF THE CHIEF EXECUTIVE'S IN MAKING HIS VETO, THIS COURT SETS ASIDE
THE ONE CLEARLY INTENDED FEATURE OF THE STATUTE APART FROM ITS GENERAL
OBJECTIVES.  I DOUBT THAT UPON ANY MATTER OF CONSTRUCTION THE COURT HAS
HERETOFORE SO FAR PRESUMED TO OVERRIDE THE PLAINLY AND INCONTROVERTIBLY
STATED JUDGMENT OF ALL PARTICIPANTS IN THE LEGISLATIVE PROCESS WITH ITS
OWN TORTUOUSLY FASHIONED VIEW.  THIS IS NOT CONSTRUCTION UNDER THE
DOCTRINE OF STRICT NECESSITY.  IT IS INVASION OF THE LEGISLATIVE
PROCESS BY EMASCULATION OF THE STATUTE.  THE ONLY JUSTIFICATION FOR
THIS IS TO AVOID DECIDING THE QUESTION OF VALIDITY. 

                                 II. 

WE ARE CONCERNED IN THIS CASE WITH THE CONSTITUTIONALITY OF SEC. 313
AS AMENDED ONLY INSOFAR AS IT MAY BE APPLIED IN RESTRICTION OR
ABRIDGMENT OF THE RIGHTS OF FREEDOM OF SPEECH, PRESS AND ASSEMBLY
SECURED BY THE FIRST AMENDMENT.  FN16  OTHER APPLICATIONS ARE NOT IN
QUESTION.  THERE CAN BE LITTLE DOUBT OF CONGRESS' POWER TO REGULATE THE
MAKING OF POLITICAL CONTRIBUTIONS AND EXPENDITURES BY LABOR UNIONS, AS
WELL AS BY OTHER ORGANIZATIONS AND INDIVIDUALS, IN THE INTEREST OF FREE
AND PURE ELECTIONS AND THE PREVENTION OF OFFICIAL CORRUPTION, BY
APPROPRIATE MEASURES NOT TRENCHING ON THOSE BASIC RIGHTS.  BUT WHEN
REGULATION OR PROHIBITION TOUCHES THEM, THIS COURT IS DUTY BOUND TO
EXAMINE THE RESTRICTIONS AND TO DECIDE IN ITS OWN INDEPENDENT JUDGMENT
WHETHER THEY ARE ABRIDGED WITHIN THE AMENDMENT'S MEANING.  FN17  THAT
OFFICE CANNOT BE SURRENDERED TO LEGISLATIVE JUDGMENT, HOWEVER WEIGHTY,
ALTHOUGH SUCH JUDGMENT IS ALWAYS ENTITLED TO RESPECT. 

AS THE COURT HAS DECLARED REPEATEDLY, THAT JUDGMENT DOES NOT BEAR THE
SAME WEIGHT AND IS NOT ENTITLED TO THE SAME PRESUMPTION OF VALIDITY,
WHEN THE LEGISLATION ON ITS FACE OR IN SPECIFIC APPLICATION RESTRICTS
THE RIGHTS OF CONSCIENCE, EXPRESSION AND ASSEMBLY PROTECTED BY THE
AMENDMENT, AS ARE GIVEN TO OTHER REGULATIONS HAVING NO SUCH TENDENCY. 
FN18  THE PRESUMPTION RATHER IS AGAINST THE LEGISLATIVE INTRUSION INTO
THESE DOMAINS.  FOR, WHILE NOT ABSOLUTE, THE ENFORCED SURRENDER OF
THOSE RIGHTS MUST BE JUSTIFIED BY THE EXISTENCE AND IMMEDIATE
IMPENDENCY OF DANGERS TO THE PUBLIC INTEREST WHICH CLEARLY AND NOT
DUBIOUSLY OUTWEIGH THOSE INVOLVED IN THE RESTRICTIONS UPON THE VERY
FOUNDATION OF DEMOCRATIC INSTITUTIONS, GROUNDED AS THOSE INSTITUTIONS
ARE IN THE FREEDOMS OF RELIGION, CONSCIENCE, EXPRESSION AND ASSEMBLY. 
HENCE DOUBTFUL INTRUSIONS CANNOT BE ALLOWED TO STAND CONSISTENTLY WITH
THE AMENDMENT'S COMMAND AND PURPOSE,  FN19  NOR THEREFORE CAN THE USUAL
PRESUMPTIONS OF CONSTITUTIONAL VALIDITY, DERIVING FROM THE WEIGHT OF
LEGISLATIVE OPINION IN OTHER MATTERS MORE LARGELY WITHIN THE
LEGISLATIVE PROVINCE AND SPECIAL COMPETENCE, OBTAIN.  IT IS IN THE
LIGHT AND SPIRIT OF THESE PRINCIPLES THAT THE VALIDITY OF SEC. 313 AS
CLAIMED TO BE APPLICABLE HERE MUST BE DETERMINED. 

AT THE OUTSET THE GOVERNMENT ADMITS THAT SEC. 313, IN PROHIBITING
EXPENDITURES IN CONNECTION WITH ANY FEDERAL ELECTION, DOES "BRING INTO
PLAY" THE RIGHTS OF FREEDOM OF SPEECH, PRESS AND ASSEMBLY.  THIS IS A
NECESSARY CONSEQUENCE OF ITS CONSTRUCTION OF THE SECTION AND THE
PRESENTLY ATTEMPTED APPLICATION.  BUT IT IS CLAIMED NO UNCONSTITUTIONAL
ABRIDGMENT IS INVOLVED.  THIS, BECAUSE IT IS SAID CONGRESS HAS POWER TO
ACT TO PRESERVE THE FREEDOM AND PURITY OF FEDERAL ELECTIONS UNDER ART.
I, SEC. 4, OF THE CONSTITUTION N20, AND OF OFFICIAL ACTION.  THUS IT IS
CLAIMED THE FIRST AMENDMENT'S GUARANTIES ARE BALANCED BY THIS OTHER
CONSTITUTIONAL PROVISION; AND CONGRESS' EXERCISE OF THE AUTHORITY
GRANTED BY IT IS ENTITLED TO THE SAME WEIGHT AND PRESUMPTIVE VALIDITY
IN PLACING LIMITS UPON THE FREEDOMS AS ATTACHES IN THEIR FAVOR IN OTHER
CONNECTIONS.  ACCORDINGLY, THE USUAL PREEMINENCE ACCORDED TO THE FIRST
AMENDMENT LIBERTIES DISAPPEARS, IT IS SAID, AND THE LEGISLATIVE
JUDGMENT, HAVING RATIONAL BASIS IN FACT AND POLICY, BECOMES
CONTROLLING. 

APART FROM THE QUESTION WHETHER THE SAME ARGUMENT MIGHT NOT BE
APPLICABLE TO ALL OTHER POWERS GRANTED TO CONGRESS BY THE CONSTITUTION,
TO DESTROY THE PRINCIPLES STATED FOR SECURING THE PREFERENTIAL STATUS
OF THE FIRST AMENDMENT FREEDOMS, THE ARGUMENT IGNORES OTHER EQUALLY
SETTLED COROLLARY PRINCIPLES.  THESE ARE THAT STATUTES RESTRICTIVE OF
OR PURPORTING TO PLACE LIMITS TO THOSE FREEDOMS MUST BE NARROWLY DRAWN
TO MEET THE PRECISE EVIL THE LEGISLATURE SEEKS TO CURB, CANTWELL V.
CONNECTICUT, 310 U.S. 296; THORNHILL V. ALABAMA, 310 U.S. 88; SCHNEIDER
V. STATE, 308 U.S. 147; DE JONGE V. OREGON, 299 U.S. 353; SAIA V. NEW
YORK, 334 U.S. 558, AND THAT THE CONDUCT PROSCRIBED MUST BE DEFINED
SPECIFICALLY SO THAT THE PERSON OR PERSONS AFFECTED REMAIN SECURE AND
UNRESTRAINED IN THEIR RIGHTS TO ENGAGE IN ACTIVITIES NOT ENCOMPASSED BY
THE LEGISLATION.  BLURRED SIGNPOSTS TO CRIMINALITY WILL NOT SUFFICE TO
CREATE IT.  CANTWELL V. CONNECTICUT, SUPRA; STROMBERG V. CALIFORNIA,
283 U.S. 359; CF. THOMAS V. COLLINS, 323 U.S. 516; WINTERS V. NEW YORK,
333 U.S. 507. 

ITS TERMS AND AS INFUSED WITH MEANING FROM THE LEGISLATIVE HISTORY. 
THIS IS TRUE WHETHER THE SECTION IS CONSIDERED IN RELATION TO ONE OR
ANOTHER OF THE EVILS SAID TO BE ITS TARGETS OR WITH REFERENCE TO ALL OF
THEM TAKEN TOGETHER. 

IF THE EVIL IS TAKEN TO BE THE CORRUPTION OF NATIONAL ELECTIONS AND
FEDERAL OFFICIALS BY THE EXPENDITURE OF LARGE MASSES OF AGGREGATED
WEALTH IN THEIR BEHALF, THE STATUTE IS NEITHER SO PHRASED NOR SO
LIMITED, EVEN IN ITS LEGISLATIVE CONSTRUCTION.  INDEED THE GOVERNMENT
DOES NOT EXPLICITLY ARGUE CORRUPTION PER SE ARISING FROM UNION
EXPENDITURES FOR PUBLICATION IN THE SAME SENSE AS GAVE RISE TO THE
ORIGINAL AND LATER LEGISLATION AGAINST CORPORATE CONTRIBUTIONS DOWN TO
THE WAR LABOR DISPUTES ACT OF 1943.  AND VERY LITTLE IN THE LEGISLATIVE
HISTORY DIRECTLY SUGGESTS THIS EVIL, ALTHOUGH THERE ARE INFERENCES
IMPLICIT IN SOME STATEMENTS THAT IT WAS NOT ENTIRELY OUT OF MIND.  FN21
SO ALSO WITH THE GOVERNMENT'S ARGUMENT.  FN22 

THE GOVERNMENT STRESSES THE "UNDUE INFLUENCE" OF UNIONS IN MAKING
EXPENDITURES BY WAY OF PUBLICATION IN SUPPORT OF OR AGAINST CANDIDATES
AND POLITICAL ISSUES INVOLVED IN THE CAMPAIGN RATHER THAN CORRUPTION IN
THE GROSS SENSE.  IT MAINTAINS THAT LARGE EXPENDITURES BY UNIONS IN
PUBLICIZING THEIR OFFICIAL POLITICAL VIEWS BRING ABOUT AN UNDUE, THAT
IS SUPPOSEDLY A DISPROPORTIONATE, SWAY OF ELECTORAL SENTIMENT AND
OFFICIAL ATTITUDES.  IN SHORT, THE "BLOC" POWER OF UNIONS HAS BECOME
TOO GREAT, IN INFLUENCING BOTH THE ELECTORATE AND PUBLIC OFFICIALS, TO
PERMIT FURTHER EXPENDITURE OF THEIR FUNDS IN DIRECTLY AND OPENLY
PUBLICIZING THEIR POLITICAL VIEWS.  AND THE ASSERTED EVIL IS TO BE
UPROOTED BY PROHIBITION OF UNION EXPENDITURES AS SUCH, NOT BY
REGULATION SPECIFICALLY DRAWN TO MEET IT. 

THERE ARE, OF COURSE, OBVIOUS DIFFERENCES BETWEEN SUCH EVILS AND
THOSE ARISING FROM THE GROSSER FORMS OF ASSISTANCE MORE USUALLY
ASSOCIATED WITH SECRECY, BRIBERY AND CORRUPTION, DIRECT OR SUBTLE.  BUT
IT IS NOT NECESSARY TO STOP TO POINT THESE OUT OR DISCUSS THEM, EXCEPT
TO SAY THAT ANY ASSERTED BENEFICIAL TENDENCY OF RESTRICTIONS UPON
EXPENDITURES FOR PUBLICIZING POLITICAL VIEWS, WHETHER OF A GROUP OR OF
AN INDIVIDUAL, IS CERTAINLY COUNTERBALANCED TO SOME EXTENT BY THE LOSS
FOR DEMOCRATIC PROCESSES RESULTING FROM THE RESTRICTIONS UPON FREE AND
FULL PUBLIC DISCUSSION.  THE CLAIMED EVIL IS NOT ONE UNMIXED WITH
GOOD.  AND ITS SUPPRESSION DESTROYS THE GOOD WITH THE BAD UNLESS
PRECISE MEASURES ARE TAKEN TO PREVENT THIS. 

THE EXPRESSION OF BLOC SENTIMENT IS AND ALWAYS HAS BEEN AN INTEGRAL
PART OF OUR DEMOCRATIC ELECTORAL AND LEGISLATIVE PROCESSES.  THEY COULD
HARDLY GO ON WITHOUT IT.  MOREOVER, TO AN EXTENT NOT NECESSARY NOW TO
ATTEMPT DELIMITING, THAT RIGHT IS SECURED BY THE GUARANTY OF FREEDOM OF
ASSEMBLY, A LIBERTY ESSENTIALLY COORDINATE WITH THE FREEDOMS OF SPEECH,
THE PRESS, AND CONSCIENCE.  CF. BOWE V. SECRETARY OF THE COMMONWEALTH,
320 MASS. 230, 251-252.  IT IS NOT BY ACCIDENT, IT IS BY EXPLICIT
DESIGN, AS WAS SAID IN THOMAS V. COLLINS, SUPRA AT 530, THAT THESE
FREEDOMS ARE COUPLED TOGETHER IN THE FIRST AMENDMENT'S ASSURANCE.  THEY
INVOLVE THE RIGHT TO HEAR AS WELL AS TO SPEAK, AND ANY RESTRICTION UPON
EITHER ATTENUATES BOTH. 

THERE IS THEREFORE AN EFFECT IN RESTRICTING EXPENDITURES FOR THE
PUBLICIZING OF POLITICAL VIEWS NOT INHERENTLY PRESENT IN RESTRICTING
OTHER TYPES OF EXPENDITURE, NAMELY, THAT IT NECESSARILY DEPRIVES THE
ELECTORATE, THE PERSONS ENTITLED TO HEAR, AS WELL AS THE AUTHOR OF THE
UTTERANCE, WHETHER AN INDIVIDUAL OR A GROUP, OF THE ADVANTAGE OF FREE
AND FULL DISCUSSION AND OF THE RIGHT OF FREE ASSEMBLY FOR THAT
PURPOSE. 

THE MOST COMPLETE EXERCISE OF THOSE RIGHTS IS ESSENTIAL TO THE FULL,
FAIR AND UNTRAMMELED OPERATION OF THE ELECTORAL PROCESS.  TO THE EXTENT
THEY ARE CURTAILED THE ELECTORATE IS DEPRIVED OF INFORMATION, KNOWLEDGE
AND OPINION VITAL TO ITS FUNCTION.  TO SAY THAT LABOR UNIONS AS SUCH
HAVE NOTHING OF VALUE TO CONTRIBUTE TO THAT PROCESS AND NO VITAL OR
LEGITIMATE INTEREST IN IT IS TO IGNORE THE OBVIOUS FACTS OF POLITICAL
AND ECONOMIC LIFE AND OF THEIR INCREASING INTERRELATIONSHIP IN MODERN
SOCIETY.  CF. DEMILLE V. AMERICAN FEDERATION OF RADIO ARTISTS, 31
CAL.2D 137.  THAT OSTRICHLIKE CONCEPTION, IF ENFORCED BY LAW, WOULD
DENY THOSE VALUES BOTH TO UNIONS AND THUS TO THAT EXTENT TO THEIR
MEMBERS, AS ALSO TO THE VOTING PUBLIC IN GENERAL.  TO COMPARE
RESTRICTIONS NECESSARILY RESULTING IN THIS LOSS FOR THE PUBLIC GOOD TO
OTHERS NOT CREATING IT IS TO IDENTIFY ESSENTIALLY DIFFERENT THINGS. 
THE CASES ARE NOT IDENTICAL.  THE LOSS INHERENT IN RESTRICTIONS UPON
EXPENDITURES FOR PUBLICIZING VIEWS IS NOT NECESSARILY INVOLVED IN OTHER
EXPENDITURES. 

IT IS THIS VERY DIFFERENCE, OF COURSE, WHICH BRINGS INTO PLAY THE
FIRST AMENDMENT'S PROHIBITIONS AND THE PRINCIPLES GIVING THEM
PRESUMPTIVE WEIGHT AGAINST INTRUSIONS OR ENCROACHMENTS UPON THE AREA
THE AMENDMENT RESERVES AGAINST LEGISLATIVE ANNEXATION.  IT IS THIS
DIFFERENCE, THE VERY FACT THAT THE RESTRICTION SEEKS TO CONTRACT THE
BOUNDARIES OF EXPRESSION AND THE RIGHT TO HEAR PREVIOUSLY CONSIDERED
OPEN, WHICH FORCES UPON ITS AUTHORS THE BURDEN OF JUSTIFYING THE
CONTRACTION BY DEMONSTRATING INDUBITABLE PUBLIC ADVANTAGE ARISING FROM
THE RESTRICTION OUTWEIGHING ALL DISADVANTAGES, THUS REVERSING THE
DIRECTION OF PRESUMPTIVE WEIGHT IN OTHER CASES. 

IF THEREFORE IT IS AN EVIL FOR ORGANIZED GROUPS TO HAVE UNRESTRICTED
FREEDOM TO MAKE EXPENDITURES FOR DIRECTLY AND OPENLY PUBLICIZING THEIR
POLITICAL VIEWS AND INFORMATION SUPPORTING THEM, BUT CF. BOWE V.
SECRETARY OF THE COMMONWEALTH, SUPRA AT 252, IT DOES NOT FOLLOW THAT IT
IS ONE WHICH REQUIRES COMPLETE PROHIBITION OF THE RIGHT.  IBID.  THAT
IS NEITHER CONSISTENT WITH THE AMENDMENT'S SPIRIT AND PURPOSE, IBID.,
NOR ESSENTIAL TO CORRECTION OF THE EVIL, WHETHER IT BE CONSIDERED
CORRUPTIVE INFLUENCE OR MERELY INFLUENCE OF UNDUE OR DISPROPORTIONATE
POLITICAL WEIGHT. 

IT IS NOT NECESSARY NOW TO CONSIDER WHETHER RESTRICTING THE RIGHTS OF
INDIVIDUALS, SINGLY OR IN ORGANIZED RELATIONSHIPS, TO PUBLICIZE THEIR
POLITICAL VIEWS, RIGHTS OFTEN ESSENTIAL TO THEIR SURVIVAL AND ALWAYS TO
THEIR WELL-BEING, CAN BE ACCOMMODATED, IN SOME INSTANCES, WITH THE
AMENDMENT'S PURPOSE OR JUSTIFIED BECAUSE IN LEGISLATIVE JUDGMENT THOSE
PERSONS, UNLESS RESTRICTED, ACQUIRE "UNDUE INFLUENCE" IN THE ELECTORAL
PROCESS.  FOR "UNDUE INFLUENCE" IN THIS CONNECTION MAY REPRESENT NO
MORE THAN CONVINCING WEIGHT OF ARGUMENT FULLY PRESENTED, WHICH IS THE
VERY THING THE AMENDMENT AND THE ELECTORAL PROCESS IT PROTECTS WERE
INTENDED TO BRING OUT.  AND ONE MAY QUESTION HOW FAR LEGISLATORS MAY GO
IN ACCURATELY ASSESSING UNDUE OR DISPROPORTIONATE WEIGHT AS
DISTINGUISHED FROM MAKING SUBSTANTIALLY ACCURATE FINDINGS AND
CONCLUSIONS CONCERNING CORRUPTION. 

BUT EVEN IF THE RIGHT TO SWAY OTHERS BY PERSUASION IS ASSUMED TO BE
SUBJECT TO SOME CURTAILMENT, IN THE INTEREST OF PREVENTING GROSSLY
UNBALANCED PRESENTATIONS, THAT RIGHT CANNOT BE WHOLLY DENIED, BOWE V.
SECRETARY OF THE COMMONWEALTH, SUPRA AT 252; NOR CAN IT BE RESTRICTED
BEYOND WHAT IS REASONABLY AND CLEARLY NECESSARY TO CORRECT AN EVIL SO
GROSS AND IMMEDIATE THAT THE CORRECTION INDUBITABLY OUTWEIGHS THE LOSS
TO THE PUBLIC INTEREST RESULTING FROM THE RESTRICTION.    HERE THE
RESTRICTION IN PRACTICAL EFFECT IS PROHIBITION, NOT REGULATION, WHEN IT
IS CONSIDERED WITH RESPECT TO THE OBJECTS OF SUPPRESSING CORRUPTION AND
"UNDUE INFLUENCE."  IT IS NOT A LIMITATION, IT IS A PROHIBITION UPON
EXPENDITURE OF UNION FUNDS IN CONNECTION WITH A FEDERAL ELECTION. 
UNIONS CAN ACT AND SPEAK TODAY ONLY BY SPENDING MONEY, AS INDEED IS
TRUE OF NEARLY EVERY ORGANIZATION AND EVEN OF INDIVIDUALS IF THEIR
ACTION IS TO BE EFFECTIVE.  AS WAS SAID IN THE COURSE OF THE SENATE
DEBATES, THE INTERDICTION APPLIES TO "A DOLLAR, OR 50 CENTS, OR $500 OR
$1,000."  93 CONG. REC. 6438.  THERE IS NO SHOWING, LEGISLATIVE OR
OTHERWISE, OF CORRUPTION SO WIDESPREAD OR OF "UNDUE INFLUENCE" SO
DOMINATING AS COULD POSSIBLY JUSTIFY SO ABSOLUTE A DENIAL OF THESE
BASIC RIGHTS.  THE STATUTE, WHETHER IN TERMS OR AS GIVEN MEANING BY THE
LEGISLATIVE HISTORY, IS NOT NARROWLY DRAWN TO MEET THE PRECISE EVILS OF
CORRUPTION OR "UNDUE INFLUENCE," IF THESE WERE THE CONTROLLING OBJECTS
OF THE LEGISLATION.  NOR, AS WILL APPEAR, WERE THE RESTRICTIONS
SPECIFICALLY DEFINED, IF THEY CAN BE CONSIDERED TO HAVE BEEN DEFINED AT
ALL, SO AS TO LEAVE THE UNION SECURE AND UNRESTRAINED IN THE RIGHT TO
ENGAGE IN ACTIVITIES WITHIN THE REGION OF THE FIRST AMENDMENT'S
COVERAGE BUT NOT ENCOMPASSED BY THE LEGISLATION. 

AS HAS BEEN STATED, IT WAS THE "MINORITY PROTECTION" IDEA WHICH
BECAME THE DOMINANTLY STRESSED ONE IN THE SENATE DEBATES, ALTHOUGH AT
THE MOST SEC. 313 ON ITS FACE GAVE ONLY SLIGHT SUGGESTION OF THIS
PURPOSE.  NOR WAS THERE INDICATION IN THE SECTION'S TERMS THAT ITS
PROHIBITION TURNS ON THE SOURCE FROM WHICH THE FUNDS EXPENDED WERE
DERIVED.  THE LANGUAGE BEARING ON THIS WAS "EXPENDITURE IN CONNECTION
WITH AN ELECTION" AND NO MORE.  LITERALLY ALL UNION EXPENDITURES IN
THAT CONNECTION WERE OUTLAWED.  THERE IS NOT A WORD TO SUGGEST THAT
UNIONS COULD SPEND THEIR FUNDS IN THAT MANNER IF CONTRIBUTED EXPRESSLY
FOR THE PURPOSE OR DERIVED FROM SUCH SOURCES AS ADVERTISING REVENUES,
SUBSCRIPTIONS, ETC., RECEIVED IN CONNECTION WITH PUBLICATION OF A PAPER
IN REGULAR COURSE OR OTHERWISE.  THE LIMITATION OF THE PROHIBITION TO
FUNDS RECEIVED GENERALLY, I.E., WITHOUT SPECIFIC DESIGNATION FOR USE IN
POLITICAL PUBLICITY, IS ALMOST WHOLLY A CONSTRUCTION OF THE SENATE
SPONSOR, SO FAR AS APPEARS FROM THE LEGISLATIVE HISTORY. 

NOTWITHSTANDING ACCEPTED CANONS OF STATUTORY CONSTRUCTION, IT
CERTAINLY WOULD BE GOING FAR TO EXPECT LAYMEN, OR EVEN LAWYERS, TO READ
A STATUTE SO LACKING IN SPECIFICITY CONCERNING ITS BASIC CRITERION WITH
ANY SEMBLANCE OF UNDERSTANDING OF ITS LIMITATIONS. 

THE LAWYER MIGHT INDEED READ THE CONGRESSIONAL RECORD AND CONCLUDE
THAT THE SOURCE OF THE FUNDS USED WAS THE CRUX.  BUT EVEN HE WOULD BE
LEFT IN BROAD AND DEEP DOUBT WHETHER IT WOULD TURN MULTITUDINOUS
SITUATIONS ONE WAY OR THE OTHER.  IF THE SECTION IS TAKEN NEVERTHELESS
TO HAVE BEEN INTENDED TO DRAW THE SPONSOR'S LINE OF DISTINCTION, THE
RESTRICTION IT MAKES REMAINS A DRASTIC ONE.  THE EFFECT IS NOT MERELY
ONE OF MINORITY PROTECTION.  IT IS ALSO ONE OF MAJORITY PROHIBITION. 
CF. DEMILLE V. AMERICAN FEDERATION OF RADIO ARTISTS, SUPRA.  UNDER THE
BECOME A BULWARK, INDEED PERHAPS THE LEADING CHARACTERISTIC, OF
COLLECTIVE ACTIVITIES IS REJECTED IN FAVOR OF ATOMIZED INDIVIDUAL RULE
AND ACTION IN MATTERS OF POLITICAL ADVOCACY.  IBID.  UNION ACTIVITIES
IN POLITICAL PUBLICITY ARE CONFINED TO THE USE OF FUNDS RECEIVED FROM
MEMBERS WITH THEIR EXPLICIT DESIGNATION GIVEN IN ADVANCE FOR THE
PURPOSE.  FN23  FUNDS SO RECEIVED FROM MEMBERS CAN BE THUS EXPENDED AND
NO OTHERS.  EVEN IF ALL OR THE LARGE MAJORITY OF THE MEMBERS HAD PAID
DUES WITH THE GENERAL UNDERSTANDING THAT THEY OR PORTIONS OF THEM WOULD
BE SO USED, BUT HAD NOT GIVEN EXPLICIT AUTHORIZATION, THE FUNDS COULD
NOT BE SO EMPLOYED.  FN24  AND THIS WOULD BE TRUE EVEN IF ALL OR THE
LARGE MAJORITY WERE IN COMPLETE SYMPATHY WITH THE POLITICAL VIEWS
EXPRESSED BY THE UNION OR ON ITS BEHALF WITH ANY EXPENDITURE OF MONEY,
HOWEVER SMALL. 

IT IS TRUE THAT THE UNION COULD ASK AND IN MANY INSTANCES SECURE THE
REQUIRED EXPLICIT ASSENTS.  IT SEEMS TO BE SUGGESTED THAT THIS MIGHT BE
DONE BY EXPRESSLY DESIGNATING A SPECIFIC PORTION OF THE DUES FOR
POLITICAL USES, POSSIBLY THOUGH NOT AT ALL CLEARLY BY BY-LAW OR
CONSTITUTIONAL PROVISION, POSSIBLY BY EARMARKING UPON STATEMENTS OF
DUES PAYABLE.  BUT IT IS NOT MADE CLEAR WHETHER THE MEMBER COULD REFUSE
TO PAY THE EARMARKED PORTION AND RETAIN MEMBERSHIP OR WOULD HAVE TO PAY
IT TO REMAIN IN THAT STATUS.  IF THE LATTER IS TRUE, THE SECTION
AFFORDS LITTLE REAL "MINORITY PROTECTION"; IF THE FORMER, THE
DISSENTIENT IS GIVEN ALL THE BENEFIT DERIVED FROM THE UNION'S POLITICAL
PUBLICITY WITHOUT HAVING TO PAY ANY PART OF ITS COST.  THIS IS BUT
ANOTHER OF THE IMPORTANT AND HIGHLY DOUBTFUL QUESTIONS RAISED ON THE

THE SECTION DOES NOT MERELY DEPRIVE THE UNION OF THE PRINCIPLE OF
MAJORITY RULE IN POLITICAL EXPRESSION.  FN25  CF. DEMILLE V. AMERICAN
FEDERATION OF RADIO ARTISTS, SUPRA.  IT RESTS UPON THE PRESUMPTION THAT
THE MAJORITY ARE OUT OF ACCORD WITH THEIR ELECTED OFFICIALS IN
POLITICAL VIEWPOINT AND ITS EXPRESSION AND, WHERE THAT PRESUMPTION IS
NOT APPLICABLE, IT CASTS THE BURDEN OF ASCERTAINING MINORITY OR
INDIVIDUAL DISSENT NOT UPON THE DISSENTERS BUT UPON THE UNION AND ITS
OFFICIALS.  THE FORMER SITUATION MAY ARISE, INDEED IN ONE NOTABLE
INSTANCE HAS DONE SO.  BUT THAT INSTANCE HARDLY CAN BE TAKEN TO BE A
NORMAL OR USUAL CASE.  UNIONS TOO MOST OFTEN OPERATE UNDER THE
ELECTORAL PROCESS AND THE PRINCIPLE OF MAJORITY RULE.  NOR IN THE
LATTER SITUATION DOES IT SEEM REASONABLE TO PRESUME DISSENT FROM MERE
ABSENCE OF EXPLICIT ASSENT, ESPECIALLY IN VIEW OF LONG-ESTABLISHED
UNION PRACTICE. 

IF MERELY "MINORITY OR DISSENTER PROTECTION" WERE INTENDED, IT WOULD
BE SUFFICIENT FOR SECURING THIS TO PERMIT THE DISSENTING MEMBERS TO
CARRY THE BURDEN OF MAKING KNOWN THEIR POSITION AND TO RELIEVE THEM OF
ANY DUTY TO PAY DUES OR PORTIONS OF THEM TO BE APPLIED TO THE FORBIDDEN
USES WITHOUT JEOPARDY TO THEIR RIGHTS AS MEMBERS.  THIS WOULD BE
CLEARLY SUFFICIENT, IT WOULD SEEM, TO PROTECT DISSENTING MEMBERS
AGAINST USE OF FUNDS CONTRIBUTED BY THEM FOR PURPOSES THEY DISAPPROVE,
BUT WOULD NOT DEPRIVE THE UNION OF THE RIGHT TO USE THE FUNDS OF
CONCURRING MEMBERS, MORE OFTEN THAN OTHERWISE A MAJORITY, WITHOUT
SECURING THEIR EXPRESS CONSENT IN ADVANCE OF THE USE.  FN26 

AGAIN, IN VIEW OF THESE FACTS, THE SECTION IS MORE BROADLY DRAWN THAN
IS NECESSARY TO REACH THE INTENDED EVIL.  MOREOVER, THIS DEMONSTRATES,
IN MY OPINION, THAT "MINORITY PROTECTION" WAS NOT THE ONLY OR PERHAPS
THE DOMINANT OBJECT OF ITS ENACTMENT.  THAT OBJECT WAS RATHER TO FORCE
UNIONS AS SUCH ENTIRELY OUT OF POLITICAL LIFE AND ACTIVITY, INCLUDING
FOR PRESENTLY PERTINENT PURPOSES THE EXPRESSION OF ORGANIZED VIEWPOINT
CONCERNING MATTERS AFFECTING THEIR VITAL INTERESTS AT THE MOST CRUCIAL
POINT WHERE THE EXPRESSION WOULD BECOME EFFECTIVE.  CF. THOMAS V.
COLLINS, SUPRA AT 536-537; BOARD OF EDUCATION V. BARNETTE, 319 U.S.
624, 642; BRIDGES V. CALIFORNIA, 314 U.S. 252, 269.  AND SO WE COME
BACK TO THE CONJUNCTION OF OBJECTIVES WHICH, TAKEN TOGETHER, ARE
CLAIMED TO SUSTAIN THE SECTION'S VALIDITY. 

IT WOULD BE A VERY GREAT INFRINGEMENT OF INDIVIDUAL AS WELL AS GROUP
FREEDOMS, AFFECTING VAST NUMBERS OF OUR CITIZENS, IF LABOR UNIONS COULD
BE DEPRIVED OF ALL RIGHT OF EXPRESSION UPON PENDING POLITICAL MATTERS
AFFECTING THEIR INTERESTS.  BUT WE NEED NOT NOW DECIDE WHETHER SEC. 313
HAS GONE SO FAR.  FN27 

FOR IF WE ASSUME THAT THE OBJECTS SAID TO HAVE BEEN THE MOTIVATION
FOR ENACTING SEC. 313 CAN SUSTAIN SUBSTANTIAL LIMITATIONS UPON THE
RIGHTS OF FREE EXPRESSION AND ASSEMBLY, THEY CANNOT SUPPORT THE
SWEEPING AND HIGHLY INDEFINITE RESTRICTIONS PLACED UPON THEM, WHETHER
BY THE SECTION AS DRAWN, AS LEGISLATIVELY CONSTRUED, OR AS SOUGHT TO BE
APPLIED.  IT IS DIFFICULT TO CONCEIVE A STATUTE AFFECTING THOSE RIGHTS
MORE LACKING IN PRECISION, MORE BROAD IN THE SCOPE OF DOUBT AND
UNCERTAINTY OF ITS REACH. 

WE HAVE ONLY THE BROAD AND INDEFINITE WORDS "EXPENDITURE IN
CONNECTION WITH ANY ELECTION."  APART FROM THE LITERAL SWEEP OF
"EXPENDITURE" AND THE LARGE AREA OF DOUBT CREATED BY EFFORTS TO CONFINE
IT, WHAT IS "IN CONNECTION WITH"?  FN28  WHAT IS A FORBIDDEN BECAUSE A
POLITICAL COMMENT N29?  WHAT SORTS OF UNION ACTIVITIES OUTSIDE OF
PUBLISHING A NEWSPAPER WITH UNSEGREGATED FUNDS WOULD FALL UNDER THE
BAN?  FN30 

THE CATALOGUE OF DOUBT AND UNCERTAINTY NEED NOT BE EXTENDED. 
THROUGHOUT THE PRECEDING DISCUSSION, BOTH OF COVERAGE AND OF VALIDITY,
INSTANCES HAVE BEEN NOTED WHICH DEMONSTRATE ITS ENCYCLOPEDIC SCOPE. 
THE CASE IS NOT ONE WHERE A HARD CORE OF CERTAIN PROHIBITION HAS BEEN
FORMED, WITH ONLY A FRINGE OF DOUBT NARROW IN SCOPE AT ITS OUTER
BOUNDARY.  INDEED THE DIFFERENCE BETWEEN THE VIEW NOW TAKEN BY THE
COURT AND THAT TAKEN BY THE SENATE AND PRESUMABLY BY THE HOUSE SHOWS
THAT EVEN THE CORE IS SOFT.  TO THE GAMBLES OF THE STATUTE ITSELF ARE
ADDED THOSE OF GUESSING NOT ONLY AT ITS PERIMETER BUT AT ITS VERY
CENTER.  NOR HAVE THESE BEEN LESSENED BY TODAY'S DECISION OTHER THAN BY
ELIMINATING THE ONE APPLICATION THE LEGISLATIVE DISCUSSION HAD SOUGHT
TO MAKE CLEAR. 

VAGUENESS AND UNCERTAINTY SO VAST AND ALL-PERVASIVE SEEKING TO
RESTRICT OR DELIMIT FIRST AMENDMENT FREEDOMS ARE WHOLLY AT WAR WITH THE
LONG-ESTABLISHED CONSTITUTIONAL PRINCIPLES SURROUNDING THEIR
DELIMITATION.  THEY MEASURE UP NEITHER TO THE REQUIREMENT OF NARROW
DRAFTING TO MEET THE PRECISE EVIL SOUGHT TO BE CURBED NOR TO THE ONE
THAT CONDUCT PROSCRIBED MUST BE DEFINED WITH SUFFICIENT SPECIFICITY NOT
TO BLANKET LARGE AREAS OF UNFORBIDDEN CONDUCT WITH DOUBT AND
UNCERTAINTY OF COVERAGE.  IN THIS RESPECT THE AMENDMENT'S POLICY ADDS
ITS OWN FORCE TO THAT OF DUE PROCESS IN THE DEFINITION OF CRIME TO
FORBID SUCH CONSEQUENCES.  CF. WINTERS V. NEW YORK, SUPRA. IF THE
STATUTE OUTLAWS ALL UNION EXPENDITURES FOR EXPRESSION OF POLITICAL
VIEWS, IT IS A BLUDGEON ILL-DESIGNED FOR CURBING THE EVILS SAID TO
JUSTIFY ITS ENACTMENT, WITHOUT ALSO CURBING THE RIGHTS.  IF THE SECTION
DOES LESS, THE EXACT THING FORBIDDEN IS TOO LOOSELY DEFINED AND THE
CONSEQUENT CLOUD CAST OVER THE THINGS NOT PROSCRIBED BUT WITHIN THE
AMENDMENT'S BEARING IS FAR TOO GREAT.  IN THIS ASPECT AND IN VIEW OF
THE CRIMINAL SANCTIONS IMPOSED, THE SECTION SERVES AS A PRIOR RESTRAINT
UPON THE FREEDOMS OF EXPRESSION AND OF ASSEMBLY THE AMENDMENT WAS
DESIGNED TO SECURE.  ONLY A MASTER, IF ANY, COULD WALK THE PERILOUS
WIRE STRUNG BY THE SECTION'S CRITERIA. 

THE FORCE OF THESE CONSIDERATIONS IS VASTLY MULTIPLIED WHEN IT IS
RECALLED THAT, UNLESS THEY WERE EFFECTIVE TO NULLIFY THE SECTION IN ITS
APPLICATION TO PUBLICIZING ACTIVITIES, THE BROADLY PROHIBITIVE AND
BLANKETING CONSEQUENCES WOULD BE APPLICABLE ALSO TO ALL SIMILAR
CORPORATE POLITICAL EXPRESSIONS, POSSIBLY NOT EXCEPTING EVEN THOSE OF
THE REGULARLY CONDUCTED CORPORATE PRESS.  FN31  THIS WOULD BE TRUE, FOR
INSTANCE, IF THE SENATE SPONSOR'S CONTRARY VIEW SHOULD MEET THE SAME
FATE IN THIS COURT THAT HIS VIEW OF THE SECTION'S APPLICATION TO THE
PRESENTLY INVOLVED SITUATION HAS MET.  MOREOVER, IN THE SPONSOR'S VIEW
SPECIAL EDITIONS AND APPARENTLY FREE DISTRIBUTION BY SUCH CORPORATE
PUBLISHERS, CONTAINING POLITICAL ITEMS, WOULD APPEAR TO FALL UNDER THE
BAN. 

THE ARGUMENT FOR APPLYING AND SUSTAINING THE SECTION IN ITS PRESENTLY
ATTEMPTED APPLICATION HAS GONE LARGELY UPON THE ASSUMPTION THAT IT
WOULD BE VALID AS APPLIED TO SIMILAR CORPORATE PUBLICATIONS, EXCEPTING
POSSIBLY THE REGULAR PRESS.  THE ASSUMPTION IS ONE NOT JUSTIFIED BY ANY
DECISION OF THIS COURT, WHICH HAS THE FINAL VOICE IN SUCH MATTERS. 
THERE ARE OF COURSE IMPORTANT LEGAL AND ECONOMIC DIFFERENCES REMAINING
BETWEEN CORPORATIONS AND UNINCORPORATED ASSOCIATIONS, INCLUDING LABOR
UNIONS, WHICH JUSTIFY LARGE DISTINCTIONS BETWEEN THEM IN LEGAL
TREATMENT.  BUT TO WHATEVER EXTENT THIS MAY BE TRUE, IT DOES NOT FOLLOW
THAT THE BROADSIDE AND BLANKETING PROHIBITIONS HERE ATTEMPTED IN
RESTRICTION OF FREEDOM OF EXPRESSION AND ASSEMBLY WOULD BE VALID IN
THEIR CORPORATE APPLICATIONS.  CORPORATIONS HAVE BEEN HELD WITHIN THE
FIRST AMENDMENT'S PROTECTION AGAINST RESTRICTIONS UPON THE CIRCULATION
OF THEIR MEDIA OF EXPRESSION.  GROSJEAN V. AMERICAN PRESS CO., 297 U.S.
233.  IT CANNOT THEREFORE BE TAKEN, MERELY UPON LEGISLATIVE ASSUMPTION,
PRACTICE OR JUDGMENT, THAT RESTRICTIONS UPON FREEDOMS OF EXPRESSION BY
CORPORATIONS ARE VALID.  AGAIN, THOSE MATTERS CANNOT BE SETTLED FINALLY
UNTIL THIS COURT HAS SPOKEN. 

FINALLY, IF SEC. 313 IS TAKEN IN THE COURT'S CONSTRUCTION, IN MY
OPINION ITS CONSTITUTIONALITY STANDS IN NO BETTER CASE.  FOR I KNOW OF
NOTHING IN THE AMENDMENT'S POLICY OR HISTORY WHICH TURNS OR PERMITS
TURNING THE APPLICABILITY OF ITS PROTECTIONS UPON THE DIFFERENCE
BETWEEN REGULAR AND MERELY CASUAL OR OCCASIONAL DISTRIBUTIONS.  INDEED
PAMPHLETEERING WAS A COMMON MODE OF EXERCISING FREEDOM OF THE PRESS
BEFORE AND AT THE TIME OF THE AMENDMENT'S ADOPTION.  IT CANNOT HAVE
BEEN INTENDED TO TOLERATE EXCLUSION OF THIS FORM OF EXERCISING THAT
FREEDOM.  NOR DOES MAKING THE DIFFERENCE BETWEEN DISTRIBUTION TO DUES
PAYING MEMBERS ONLY AND DISTRIBUTION TO OUTSIDERS OR THE PUBLIC,
WHETHER WITH OR WITHOUT PRICE, MAKE A CONSTITUTIONAL DIFFERENCE.  THE
AMENDMENT DID NOT MAKE ITS PROTECTIONS TURN ON WHETHER THE HEARER OR
READER PAYS, OR CAN PAY, FOR THE PUBLICATION OR THE PRIVILEGE OF
HEARING THE ORAL OR WRITTEN PRONOUNCEMENT.  NEITHER FREEDOM OF SPEECH
AND THE PRESS NOR THE RIGHT OF PEACEABLE ASSEMBLY IS RESTRICTED TO
PERSONS WHO CAN AND DO PAY. 

A STATUTE WHICH, IN THE CLAIMED INTEREST OF FREE AND HONEST
ELECTIONS, CURTAILS THE VERY FREEDOMS THAT MAKE POSSIBLE EXERCISE OF
THE FRANCHISE BY AN INFORMED AND THINKING ELECTORATE, AND DOES THIS BY
INDISCRIMINATE BLANKETING OF EVERY EXPENDITURE MADE IN CONNECTION WITH
AN ELECTION, SERVING AS A PRIOR RESTRAINT UPON EXPRESSION NOT IN FACT
FORBIDDEN AS WELL AS UPON WHAT IS, CANNOT BE SQUARED WITH THE FIRST
AMENDMENT.    FN1  SECTION 313 OF THE CORRUPT PRACTICES ACT, AS AMENDED
BY SEC. 304 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, 61 STAT.
159. 

FN2  RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549; ASHWANDER V.
VALLEY AUTHORITY, 297 U.S. 288, CONCURRING OPINION OF MR. JUSTICE
BRANDEIS AT 346-348; FEDERATION OF LABOR V. MCADORY, 325 U.S. 450;
UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75. 

FN3  THE STATUTORY WORDING IS:  "  ...  EXPENDITURE IN CONNECTION
WITH ANY ELECTION AT WHICH PRESIDENTIAL AND VICE PRESIDENTIAL ELECTORS
OR A SENATOR OR REPRESENTATIVE IN, OR A DELEGATE OR RESIDENT
COMMISSIONER TO CONGRESS ARE TO BE VOTED FOR, OR IN CONNECTION WITH ANY
PRIMARY ELECTION OR POLITICAL CONVENTION OR CAUCUS HELD TO SELECT
CANDIDATES FOR ANY OF THE FOREGOING OFFICES  ... " 

FN4  THE INDICTMENT EXPLICITLY CHARGES THAT "THE CIO NEWS" WAS
REGULARLY (WEEKLY) PUBLISHED BY THE C.I.O. AND COSTS OF PUBLICATION AND
DISTRIBUTION, INCLUDING THE ISSUE IN QUESTION, WERE PAID FROM THE
UNION'S FUNDS.  THERE WAS NO ALLEGATION CONCERNING THEIR SOURCE,
WHETHER FROM REVENUES NOT CONNECTED WITH OR EARMARKED FOR RECEIPT OF
THE PAPER OR FROM SOURCES SPECIFICALLY SO CONNECTED.  THE COURT'S
OPINION DOES NOT, NOR COULD IT FAIRLY, ASSUME THAT THE ALLEGATIONS WERE
LIMITED TO EXPENDITURE OF FUNDS DERIVED FROM SUBSCRIPTIONS, ADVERTISING
REVENUES OR RETURNS FROM PER COPY SALES.  THE OPINION EXPLICITLY HOLDS
THAT SOURCE OF THE FUNDS IS IMMATERIAL UNDER SEC. 313 FOR COVERAGE OF
THE TYPE OF PUBLICATION AND CIRCULATION HERE INVOLVED. 

FN5  BY THE OPINION'S PHRASE, "IN REGULAR COURSE TO THOSE ACCUSTOMED
TO RECEIVE COPIES," P. 123, ANTE, ROOM SEEMS TO BE LEFT FOR THE
INFERENCE THAT INSUBSTANTIAL DISTRIBUTION OUTSIDE THE MEMBERSHIP WOULD
NOT TEND TO BRING THE CASE WITHIN THE SECTION'S TERMS. 

FN6  SEE NOTE 3.  THE SECTION AS PRESENTLY EFFECTIVE IS QUOTED IN
FULL AT NOTE 1 OF THE COURT'S OPINION. 

FN7  "CONTRIBUTION" HAD BEEN CONSTRUED BY LEGISLATIVE COMMITTEES
INVESTIGATING CAMPAIGN EXPENDITURES PRIOR TO 1947, SEE NOTES 9 AND 10,
THOUGH NOT ALWAYS UNANIMOUSLY, NOT TO COVER EXPENDITURES MADE BY LABOR
UNIONS IN PUBLISHING THEIR POLITICAL VIEWS DURING CAMPAIGNS OR AT OTHER
TIMES.  SEE H.R. REP. NO. 2093, 78TH CONG., 2D SESS. 10-11; SEN. REP.
NO. 101, 79TH CONG., 1ST SESS. 57-59, 83-84; H.R. REP. NO. 2739, 79TH
CONG., 2D SESS. 39-40, 46; SEN. REP. NO. 1, PART 2, 80TH CONG., 1ST
SESS. 37, 38-39.  IT IS NOT NECESSARY TO SUMMARIZE THE DIFFERING
VIEWPOINTS EXPRESSED IN THE 1947 DEBATES CONCERNING THE VALIDITY OF
THIS CONSTRUCTION.  WHETHER VALID OR NOT WOULD MAKE ONLY THE DIFFERENCE
BETWEEN EXTENDING THE STATUTE'S SCOPE BY ADDING TO ITS TERMS OR BY
"PLUGGING A LOOPHOLE," ALBEIT A LARGE ONE, CREATED BY MISCONSTRUCTION. 
IN EITHER EVENT A LARGE ADDITION TO THE SECTION'S COVERAGE WAS MADE. 
SEE, E.G., 93 CONG. REC. 6438-6440. 

THE FEDERAL CORRUPT PRACTICES ACT OF 1925, 43 STAT. 1070, AMENDED THE
PREEXISTING LEGISLATION FORBIDDING A CORPORATE "MONEY CONTRIBUTION" BY
CHANGING THAT TERM TO "CONTRIBUTION" AND DEFINING THIS TO INCLUDE "A
GIFT, SUBSCRIPTION, LOAN, ADVANCE, OR DEPOSIT, OF MONEY, OR ANYTHING OF
VALUE, AND INCLUDES A CONTRACT, PROMISE, OR AGREEMENT, WHETHER OR NOT
LEGALLY ENFORCEABLE, TO MAKE A CONTRIBUTION  ...  "  SINCE
"EXPENDITURE" WAS INTENDED TO BROADEN "CONTRIBUTION" IN THE 1947
AMENDMENT OF SEC. 313, IT WOULD SEEM THAT ITS SCOPE COULD HARDLY BE
LESS BROAD THAN WAS GIVEN BY THE 1925 ACT'S DEFINITION TO
"CONTRIBUTION," ALTHOUGH THE GOVERNMENT DOES NOT APPEAR TO URGE THAT
"EXPENDITURE" INCORPORATES THAT DEFINITION. 

FN8  SEE 93 CONG. REC. 6436-6441, 6446-6448, AND EXCERPTS QUOTED IN
THE COURT'S OPINION AND THE APPENDIX TO THIS ONE.  CF. ALSO NOTES 11,
12, 13. 

FN9  THESE WERE THE OBJECTS OF THE PROHIBITION AGAINST
"CONTRIBUTIONS" BY LABOR UNIONS, WHICH FIRST APPEARED ON A TEMPORARY
BASIS IN 1943 IN THE WAR LABOR DISPUTES ACT, WHICH BY ITS TERMS WAS TO
EXPIRE SIX MONTHS FOLLOWING THE TERMINATION OF HOSTILITIES.  ACT OF
JUNE 25, 1943, C. 144, SEC. 9, 57 STAT. 167.  SEE HEARINGS BEFORE A
SUBCOMMITTEE OF THE COMMITTEE ON LABOR ON H.R. 804 AND H.R. 1483, 78TH
CONG., 1ST SESS. 2, 4, 117, 118, 133.  CF. 89 CONG. REC. 5328, 5334,
5792.  THE GOVERNMENT'S BRIEF STATES THAT THE LEGISLATIVE HISTORY OF
THE 1943 ACT SHOWS THAT THE PRINCIPAL BASIS OF THE EXTENSION TO LABOR
UNIONS, LIKE THAT OF THE SAME AND EARLIER ACTS APPLYING TO
CORPORATIONS, "WAS THE SECURING OF ELECTIONS IN ACCORDANCE WITH THE
WILL OF THE PEOPLE THROUGH REMOVING DISPROPORTIONATE INFLUENCES EXERTED
BY MEANS OF LARGE AGGREGATIONS OF MONEY." 

SINCE THE 1947 AMENDMENT TO SEC. 313 WAS DESIGNED TO MAKE PERMANENT
THE PROHIBITIONS OF THE 1943 ACT, H.R. REP. NO. 245, 80TH CONG., 1ST
SESS. 46; H.R. REP. NO. 510, 80TH CONG., 1ST SESS. 67-68(CONFERENCE
REPORT TO ACCOMPANY H.R. 3020), AND TO EXPAND THEM BY ADDING
"EXPENDITURES," THE OBJECTS OF THE 1943 ACT NECESSARILY WERE CARRIED
FORWARD INTO THE 1947 AMENDMENT.  IBID.  SEE ALSO 93 CONG. REC. 3428. 

FN10  CONGRESSIONAL COMMITTEES INVESTIGATING CAMPAIGN EXPENDITURES IN
1946 AND 1947 HAD RECOMMENDED THAT "EXPENDITURES" BE ADDED TO THE
PROHIBITION OF SEC. 313.  SEE H.R. REP. NO. 2739, 79TH CONG., 2D SESS.
39-40, 46; SEN. REP. NO. 1, PART 2, 80TH CONG., 1ST SESS. 37, 38-39. 
THE SO-CALLED TAFT-HARTLEY BILL AS INTRODUCED IN THE HOUSE CONTAINED
THE PROHIBITION, H.R. 3020, 80TH CONG., 1ST SESS., SEC. 304, WHILE THE
SENATE VERSION DID NOT.  S. 1126, 80TH CONG., 1ST SESS THERE WAS
APPARENTLY LITTLE DISCUSSION IN EITHER BODY ON THE MATTER UNTIL THE
CONFERENCE REPORT INCORPORATING THE PROVISION WAS MADE.  H.R. REP. NO.
510, 80TH CONG., 1ST SESS.  THEN LENGTHY DISCUSSION ENSUED IN THE
SENATE, FROM WHICH EXCERPTS ARE QUOTED IN THE COURT'S OPINION AND IN
THE APPENDIX TO THIS ONE.  SEE 93 CONG. REC. 6436-6441, 6445-6448, 6522
6524, 6530. 

FN11  SOME OF THE MORE IMPORTANT INSTANCES INCLUDED WHETHER THE
CONNECTION WITH" ELECTIONS BY CORPORATELY OWNED NEWSPAPERS AND
PERIODICALS, IN REGULAR COURSE OF DISTRIBUTION, 93 CONG. REC. 6436, OR
IN SPECIAL EDITIONS, IBID.; BY "HOUSE ORGANS," ID. 6440, OR LIKE
PUBLICATIONS PUT OUT BY CORPORATIONS ENGAGING PRIMARILY IN OTHER
BUSINESS THAN PUBLISHING; BY RELIGIOUS, IBID., AND CHARITABLE
CORPORATIONS; BY ORGANIZATIONS LIKE THE ANTI-SALOON LEAGUE, IBID.; BY
RADIO COMMENTATORS SPONSORED BY COMMERCIAL CORPORATIONS, ID. 6439,
6447; BY TRADE ASSOCIATIONS, SUCH AS THE NATIONAL ASSOCIATION OF
MANUFACTURERS, WHICH RECEIVE FUNDS FROM CONSTITUENT CORPORATIONS, ID.
6438. 

THESE INQUIRIES GENERALLY PROCEEDED WITH ANALOGOUS ONES RELATING TO
COMPARABLE ACTIVITIES OF UNIONS AND COMPARABLE RESPONSES, TOUCHING FOR
EXAMPLE P.A.C. ACTIVITIES; LABOR PUBLICATIONS, REGULAR OR SPECIAL;
SPONSORED BROADCASTS, ETC.  ILLUSTRATIVE RESPONSES ARE SET FORTH IN
NOTE 12. 

FN12  E.G., THE REGULAR CORPORATELY OWNED PRESS WAS CONSIDERED NOT
COVERED AS TO ITS ORDINARY CIRCULATION, BECAUSE "THAT IS THE OPERATION
OF THE NEWSPAPER ITSELF," 93 CONG. REC. 6437.  THE SAME EXEMPTION FROM
COVERAGE, HOWEVER, WAS THOUGHT NOT TO EXTEND TO REGULARLY PUBLISHED
UNION OR LABOR PAPERS, SINCE MEMBERS' DUES COULD NOT BE SO USED WITHOUT
SPECIFIC EARMARKING OR DESIGNATION BY EACH FOR SUCH USE, EVEN THOUGH
FROM PREVIOUS PRACTICE THEY MIGHT KNOW SUCH USE WOULD BE MADE.  ID.
6440.  ON THE OTHER HAND, NEITHER THE REGULAR PRESS, CORPORATELY OWNED,
NOR UNION PAPERS COULD PUBLISH SPECIAL EDITIONS OR DISTRIBUTE THEM WITH
OR WITHOUT CHARGE.  NOR COULD HOUSE ORGANS, UNION OR CORPORATE, COMMENT
POLITICALLY, OR RELIGIOUS ORGANIZATIONS, IF INCORPORATED; NEITHER COULD
ASSOCIATIONS LIKE THE NATIONAL ASSOCIATION OF MANUFACTURERS, WHICH
RECEIVE FUNDS FROM CORPORATIONS AND BY SUCH EXPENDITURES WOULD BE
MAKING "CONTRIBUTIONS" INDIRECTLY.  PROBLEMS INVOLVING ORGANIZATIONS
LIKE THE ANTI-SALOON LEAGUE AND SPONSORED RADIO BROADCASTS, WHETHER BY
UNIONS OR CORPORATIONS, AS WELL AS GUEST APPEARANCES OF CANDIDATES AND
OTHERS SUPPORTING THEM ON SPONSORED RADIO PROGRAMS, RAISED MATTERS OF
GREATER DIFFICULTY.  SEE THE VARIOUS PERTINENT CITATIONS IN NOTE 11. 
CF. NOTES 13 AND 14. 

FN13  THE PROBLEMS RAISED IN CONNECTION WITH RADIO DISCUSSIONS
PRESENTED PARTICULARLY DUBIOUS SITUATIONS, FREQUENTLY ADMITTED TO CALL
FOR FURTHER FACTS, TO PRESENT QUESTIONS OF FACT, AND TO REQUIRE FINE
LINES OF DISTINCTION.  SEE, E.G., 93 CONG. REC. 6439, 6440. 

DIFFICULTY AROSE AND DOUBT WAS EXPRESSED ALSO OVER WHAT WOULD
CONSTITUTE POLITICAL COMMENT, E.G., PUBLISHING AN INCUMBENT CANDIDATE'S
VOTING RECORD, ID. 6438, 6446, 6447, AN INSTANCE IN WHICH THE SENATE
SPONSOR AT FIRST DISAGREED WITH SENATOR BALL, BUT LATER APPARENTLY
THOUGH SOMEWHAT EQUIVOCALLY AGREED WITH HIM THAT PUBLICATION OF THE
RECORD WITHOUT COMMENT FURTHER THAN "MERELY A BARE STATEMENT OF ACTUAL
FACTS AND SIMPLY DIRECT QUOTATIONS OF WHAT THE MAN HAD SAID IN THE
COURSE OF CERTAIN SPEECHES ON CERTAIN SUBJECTS" WOULD NOT BE FORBIDDEN,
ID. 6447; CORPORATE BROADCASTS NOT FOR OR AGAINST A CANDIDATE, BUT FOR
A PARTY OR RELATING TO ISSUES IN THE ELECTION, SAID TO BE "AGAIN, A
QUESTION OF FACT" AND TO DEPEND ON "HOW CLOSE IT IS TO THE ELECTION." 
IBID. THESE INSTANCES ARE ILLUSTRATIVE ONLY, NOT COMPREHENSIVE.  CF.
NOTE 29. 

FN14  THIS RUBRIC TURNED THE ANSWERS TO THE INQUIRIES AND SITUATIONS
MENTIONED IN NOTES 11, 12 AND 13, AS INDEED TO ALL OTHERS.  IF THE
FUNDS USED FOR THE PUBLICATION CAME TO THE CORPORATE OR UNION TREASURY
WITHOUT SECURING THE CONTRIBUTOR'S EXPRESS CONSENT FOR THAT USE, THE
ORGANIZATION COULD NOT SO APPLY THEM; IF SO CONTRIBUTED, THEY COULD BE
THUS EMPLOYED.  EXCEPT IN THE CASE OF THE REGULAR CORPORATE PRESS WHICH
PRESUMABLY WAS NOT COVERED AS TO ORDINARY CIRCULATION, CF. NOTE 12
SUPRA, EXPENDITURE OF ANY CORPORATE OR UNION FUNDS NOT DERIVED FROM
OPERATION OF THE PUBLICATION, E.G., FROM ADVERTISING REVENUES OR
RETURNS FROM PER COPY SALES, OR FUNDS RECEIVED FROM INDIVIDUALS WITHOUT
INDIVIDUAL AND EXPLICIT AUTHORIZATION FOR THE PURPOSE OF THE
PUBLICATION WAS FORBIDDEN. 

FN15  SEE THE APPENDIX TO THIS OPINION, POST, P. 156. 

FN16  SINCE THE STATUTE IN MY JUDGMENT ABRIDGES THOSE FREEDOMS HERE,
IT IS UNNECESSARY TO CONSIDER OTHER GROUNDINGS URGED FOR ITS
INVALIDATION. 

FN17  THOMAS V. COLLINS, 323 U.S. 516, 531; BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624, 639; THORNHILL V. ALABAMA, 310 U.S. 88, 96;
SCHNEIDER V. STATE, 308 U.S. 147, 161. 

FN18  THOMAS V. COLLINS, 323 U.S. 516, 530; THORNHILL V. ALABAMA, 310
U.S. 88, 95; SCHNEIDER V. STATE, 308 U.S. 147, 161; CF. UNITED STATES
V. CAROLENE PRODUCTS CO., 304 U.S. 144, 152, N. 4. 

FN19  THOMAS V. COLLINS, 323 U.S. 516, 530; AND CF. OTHER CASES CITED
IN NOTE 17. 

FN20  "THE TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR SENATORS
AND REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE BY THE
LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR
ALTER SUCH REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING SENATORS." 

SEE ALSO U.S. CONST., ART. I, SEC. 2, CLAUSE 1, SEC. 8, CLAUSE 18. 
CF. AS TO CONGRESS' POWER OVER THE ELECTORAL PROCESS, EX PARTE
YARBROUGH, 110 U.S. 651; UNITED STATES V. CLASSIC, 313 U.S. 299. 

FN21  AS HAS BEEN NOTED, THE SENATE DEBATE WENT LARGELY ON THE
"MINORITY PROTECTION" BASIS OF JUSTIFICATION WITH ONLY INFERENTIAL OR
INCIDENTAL REFERENCE TO CORRUPTING INFLUENCE AND OCCASIONAL SUGGESTIONS
OF "UNDUE INFLUENCE."  SEE, HOWEVER, THE STATEMENTS OF REPRESENTATIVE
HOFFMAN, 93 CONG. REC. 3428, AND OF SENATOR TAFT, ID. 6437. 

FN22  THE BRIEF, HOWEVER, INCLUDES AMONG THE REASONS FOR THE
PROHIBITION OF SEC. 313 "A DISTRUST OF THE USE OF LARGE CONTRIBUTIONS,
NOT BECAUSE THESE PROVE CORRUPTION, BUT BECAUSE THE LARGE SINGLE
CONTRIBUTIONS IMPLY RESULTING OBLIGATIONS AND, THEREFORE, CAN BREED
CORRUPTION"; AND GOES ON TO STATE THAT "THERE IS NO PRACTICAL
DIFFERENCE BETWEEN A CONTRIBUTION AND AN EXPENDITURE SO FAR AS THE
EFFECT OF THE USE OF MONEY FOR CAMPAIGN PURPOSES IS CONCERNED." 

FN23  APPARENTLY THE SENATE SPONSOR CONSIDERED THAT REVENUES DERIVED
FROM THE OPERATION OF UNION NEWSPAPERS, SUCH AS ADVERTISING REVENUES,
ETC., ARE AVAILABLE FOR POLITICAL PUBLICITY, ALTHOUGH THEY ARE UNION
FUNDS IN WHICH POLITICALLY DISSENTIENT MEMBERS HAVE INTERESTS
PROPORTIONALLY WITH CONCURRING ONES AND, IT SEEMS, DO NOT GIVE EXPLICIT
CONSENT TO SUCH USE.  THE SITUATION, LIKE THE CASE OF THE REGULAR
INCORPORATED PRESS, WOULD SEEM TO BE EXCEPTIONAL IN PERMITTING THE
UNION (OR CORPORATION) TO USE ITS OWN FUNDS FOR POLITICAL PUBLICITY. 

FN24  SEE NOTE 12 SUPRA. 

FN25  IT WOULD EVEN SEEM QUESTIONABLE WHETHER UNION FUNDS, NOT
INDIVIDUALLY EARMARKED FOR THE PURPOSE, COULD BE USED FOR CALLING UNION
MEETINGS TO DISCUSS AND DETERMINE OFFICIAL POLITICAL POLICIES OR TO
HEAR CANDIDATES OR OTHERS EXPRESSING THEIR VIEWS ON CAMPAIGN ISSUES. 
CF. NOTE 30 INFRA. 

FN26  THIS DIFFERENCE IS MINIMIZED, THOUGH NOTED, IN THE GOVERNMENT'S
COMPARISON OF SEC. 313 WITH THE BRITISH LEGISLATION AND EXPERIENCE. 
CF. TRADE UNION ACT OF 1913, 2 & 3 GEO. V, C. 30; TRADE DISPUTES AND
TRADE UNIONS ACT OF 1927, 17 & 18 GEO. V, C. 22, REPEALED BY TRADE
DISPUTES AND TRADE UNIONS ACT OF 1946, 9 & 10 GEO. VI, C. 52.  THE
LEGISLATION WAS NOT INTENDED TO PREVENT EXPENDITURES FOR UNION
NEWSPAPERS.  SEE ROTHSCHILD, GOVERNMENT REGULATION OF TRADE UNIONS IN
GREAT BRITAIN:  II, 38 COL. L. REV. 1335, 1364.  AND SEE FURTHER
REGARDING THE BRITISH LEGISLATION'S EFFECT, DEMILLE V. AMERICAN
FEDERATION OF RADIO ARTISTS, 31 CAL.2D 137, 148, DISTINGUISHING
AMALGAMATED SOCIETY OF RAILWAY SERVANTS V. OSBORNE, (1910) A.C. 87. 
FN27  CF.:  "IT IS PERFECTLY CLEAR THAT UNION FUNDS ARE NOT TO BE USED
TO INTERFERE IN POLITICAL CAMPAIGNS AND WITH POLITICAL CANDIDATES,
EITHER IN FAVOR OF ONE CANDIDATE OR AGAINST ANOTHER CANDIDATE."  93
CONG. REC. 6437.  "LABOR UNIONS ARE SUPPOSED TO KEEP OUT OF POLITICS IN
THE SAME WAY THAT CORPORATIONS ARE SUPPOSED TO KEEP OUT OF POLITICS." 
ID. 6440. 

FN28  WHEN DOES THE CONNECTION BEGIN?  OBVIOUSLY NOT WITH THE DATE OF
THE ELECTION, PRIMARY, CONVENTION OR CAUCUS.  HOW LONG BEFOREHAND, WITH
THE ANNOUNCEMENT OF CANDIDACIES OR WITH EARLIER THOUGH NOT ALWAYS
PUBLIC EFFORTS TO INDUCE PERSONS TO RUN?  WHEN DOES THE CONNECTION
END?  WITH THE SELECTION OF CANDIDATES IN THE ONE CASE AND THE ELECTION
OF OFFICERS IN THE OTHER OR DOES IT EXTEND TO ACTIVITIES RELATING TO
THESE EVENTS TAKING PLACE LATER? 

FN29  THE PUBLICATION OF BARE FACTS, E.G., VOTING RECORDS, OF
QUOTATIONS FROM SPEECHES AND ADDRESSES, THEIR REPRODUCTION IN FULL? 
CF. NOTE 13.  AND DOES ACCURACY OR INACCURACY OF THE QUOTATION MAKE THE
DIFFERENCE BETWEEN CRIMINALITY AND LEGALITY?  COULD A PRESIDENT'S
SPEECH IN THE COURSE OF A CAMPAIGN FOR REELECTION BE REPRODUCED IN A
UNION NEWSPAPER PUBLISHED WITH UNSEGREGATED FUNDS, WHETHER DESIGNEDLY
AND CLEARLY POLITICAL OR PURPORTING NOT TO BE SO?  WHERE TO DRAW THE
LINE BETWEEN FACTS AND COMMENT, OR COMMENT AND ADVOCACY OR OPPOSITION? 

FN30  A SUMMARY FROM APPELLEES' BRIEF INDICATES THE SCOPE AND VARIETY
OF QUESTIONS WHICH WOULD ARISE: 

"THIS MEASURE THUS ON ITS FACE WOULD PREVENT A LABOR ORGANIZATION
FROM HOLDING A MEETING FOR THE PURPOSE OF ADVOCATING THE ELECTION OR
DEFEAT OF A PARTICULAR POLITICAL CANDIDATE.  IT WOULD PRECLUDE A LABOR
ORGANIZATION FROM ORGANIZING A PUBLIC GATHERING TO ADVOCATE THE
ELECTION OF A CANDIDATE PLEDGED TO THE DEFEAT OF SUCH A MEASURE AS

"A LABOR ORGANIZATION UNDER THIS STATUTE COULD NOT PLACE AT THE
DISPOSAL OF A CANDIDATE ITS OWN HALL.  IT COULD NOT ENGAGE RADIO TIME
TO DENOUNCE A CANDIDATE WHO HAD IDENTIFIED HIMSELF WITH INTERESTS
FUNDAMENTALLY OPPOSED TO THOSE BASIC TO THE INTERESTS OF THE
DEFENDANTS.  NOR COULD IT PAY THE SALARY OR EXPENSES OF AN INDIVIDUAL
FOR THE PURPOSE OF PERMITTING HIM TO PARTICIPATE IN A POLITICAL
CAMPAIGN. 

"HANDBILLS, PLACARDS OR UNION NEWSPAPERS ADVISING THE UNION
MEMBERSHIP OF THE VOTING RECORDS OF PUBLIC OFFICIALS COULD NOT BE
PUBLISHED OR DISTRIBUTED AT ELECTION TIME TO ADVOCATE EITHER THE
ELECTION OF LABOR'S FRIENDS OR THE DEFEAT OF LABOR'S ENEMIES.  PAID
ADVERTISEMENTS AND RADIO PUBLICATIONS FOR THE SAME PURPOSES WOULD BE
LIKEWISE PROSCRIBED. 

"NO MATTER HOW DANGEROUS THE THREAT PRESENTED BY A CANDIDATE TO THE
FUNDAMENTAL INTERESTS OF A LABOR ORGANIZATION, IT IS POWERLESS UNDER
THIS LAW TO SPEAK AND TO INFORM THE PEOPLE OF ITS VIEWS.  IT COULD NOT
SEND TO A SINGLE MEMBER A PENNY POSTCARD DEALING WITH SUCH A
CANDIDATE.  IT COULD NOT EVEN SEND A DELEGATE OR OBSERVER TO A
POLITICAL CONVENTION. 

"IT COULD OPPOSE BAD LAWS BUT NOT 'IN CONNECTION WITH ANY ELECTION'. 
IT COULD ENDORSE GOOD LAWS BUT AT ALL TIMES BOTH ITS OPPOSITION AND ITS
ENDORSEMENT WOULD BE UNDERTAKEN AT THE PERIL OF CROSSING THE LINE AT
WHICH SUCH OPPOSITION OR ENDORSEMENT OR ADVOCACY COULD BE REGARDED AS
BEING 'IN CONNECTION WITH ANY ELECTION'. 

"MOREOVER, A LABOR ORGANIZATION COULD NOT SPONSOR A PUBLIC MEETING IN
CONNECTION WITH AN ELECTION FOR THE PURPOSE OF HEARING THE VIEWS OF
CANDIDATES OF VARIOUS POLITICAL PARTIES WITH RESPECT TO ISSUES OF
IMPORTANCE TO ITS MEMBERSHIP SINCE SUCH A MEETING WOULD INEVITABLY
REQUIRE EXPENDITURES. 

"THE TRADITIONAL CAMPAIGNS ON THE PART OF LABOR ORGANIZATIONS PRIOR
TO FEDERAL ELECTIONS TO 'GET OUT THE VOTE' WOULD, SINCE THEY REQUIRE
EXPENDITURES, BE PROSCRIBED BY THE STATUTE.  AND THE PUBLICATION OF
VOTING GUIDES AND ANALYSES OF THE VOTING RECORDS OF CANDIDATES WOULD
LIKEWISE BE CONDEMNED." 

FN31  CF. THE PRESIDENT'S VIEW, STATED IN HIS VETO MESSAGE AS
FOLLOWS: 

"FURTHERMORE, THIS PROVISION CAN BE INTERPRETED AS GOING FAR BEYOND
ITS APPARENT OBJECTIVES, AND AS INTERFERING WITH NECESSARY BUSINESS
ACTIVITIES.  IT PROVIDES NO EXEMPTION FOR CORPORATIONS WHOSE BUSINESS
IS THE PUBLICATION OF NEWSPAPERS OR THE OPERATION OF RADIO STATIONS. 
IT MAKES NO DISTINCTIONS BETWEEN EXPENDITURES MADE BY SUCH CORPORATIONS
FOR THE PURPOSE OF INFLUENCING THE RESULTS OF AN ELECTION, AND OTHER
EXPENDITURES MADE BY THEM IN THE NORMAL COURSE OF THEIR BUSINESS 'IN
CONNECTION WITH' AN ELECTION.  THUS IT WOULD RAISE A HOST OF
TROUBLESOME QUESTIONS CONCERNING THE LEGALITY OF MANY PRACTICES
ORDINARILY ENGAGED IN BY NEWSPAPERS AND RADIO STATIONS."  H.R. DOC. NO.
334, 80TH CONG., 1ST SESS. 9-10. 

APPENDIX. 

"MR. PEPPER.  ... 

"I WISH TO ASK THE SENATOR, IF I MAY, THIS QUESTION:  WOULD THE
NEWSPAPER CALLED LABOR, WHICH IS PUBLISHED BY THE RAILWAY LABOR
EXECUTIVES, BE PERMITTED TO PUT OUT A SPECIAL EDITION OF THE PAPER, FOR
EXAMPLE, IN SUPPORT OF PRESIDENT TRUMAN, IF HE SHOULD BE THE DEMOCRATIC
CANDIDATE FOR THE PRESIDENCY NEXT YEAR, AND IN OPPOSITION TO THE
SENATOR FROM OHIO, IF HE SHOULD BE THE REPUBLICAN NOMINEE FOR THE
PRESIDENCY, STATING THAT PRESIDENT TRUMAN WAS A FRIEND OF LABOR AND
THAT THE SENATOR FROM OHIO WAS NOT FRIENDLY TO LABOR?  WOULD THAT BE
CALLED A POLITICAL EXPENDITURE ON THE PART OF THE LABOR ORGANIZATION? 

"MR. TAFT.  IF IT WERE SUPPORTED BY UNION FUNDS CONTRIBUTED BY UNION
MEMBERS AS UNION DUES IT WOULD BE A VIOLATION OF THE LAW, YES.  IT IS
EXACTLY AS IF A RAILROAD ITSELF, USING ITS STOCKHOLDERS' FUNDS,
PUBLISHED SUCH AN ADVERTISEMENT IN THE NEWSPAPER SUPPORTING ONE
CANDIDATE AS AGAINST ANOTHER.  IF THE PAPER CALLED LABOR IS OPERATED
INDEPENDENTLY, IF IT DERIVES ITS MONEY FROM ITS SUBSCRIBERS, THEN OF
COURSE THERE WOULD BE NO VIOLATION.  THE PROHIBITION IS AGAINST A LABOR
ORGANIZATION USING ITS FUNDS EITHER AS A CONTRIBUTION TO A POLITICAL
COMPAIGN OR AS A DIRECT EXPENDITURE OF FUNDS ON ITS OWN BEHALF."  (93
CONG. REC. 6436.) 

     .         .         .    .         . 

"MR. PEPPER.  ...  YET THE SENATOR FROM OHIO SAYS THAT THE NEWSPAPER
LABOR, PUBLISHED BY THE 21 RAILWAY LABOR EXECUTIVES, WOULD NOT BE
PERMITTED TO PUBLISH A STATEMENT SAYING THAT IT SUPPORTED PRESIDENT
TRUMAN AND OPPOSED CANDIDATE TAFT, OR VICE VERSA.  I SAY THAT WOULD BE
A DEPRIVATION OF THE FREEDOM OF THE PRESS. 

"MR. TAFT.  NO; I SAID THAT UNION FUNDS COULD NOT BE USED FOR THAT
PURPOSE.  THEY COULD CONDUCT A NEWSPAPER IF THEY WANTED TO, JUST AS A
CORPORATION CAN CONDUCT A NEWSPAPER.  BUT WHY SHOULD A LABOR
ORGANIZATION BE ABLE TO PUBLISH PAMPHLETS OR SPECIAL NEWSPAPERS AGAINST
ONE CANDIDATE OR IN FAVOR OF ANOTHER CANDIDATE, USING FUNDS WHICH THAT
ORGANIZATION COLLECTED FROM THE UNION MEMBERS?"  (ID. 6436-6437.) 

.         .         .         .         . 

"MR. PEPPER.  MR. PRESIDENT, I CALL THE ATTENTION OF THE SENATOR FROM
OHIO TO THE FOLLOWING PRACTICE OF THE RAILWAY LABOR EXECUTIVES IN THE
PAST:  IF A CERTAIN CANDIDATE WAS UNFRIENDLY TO THE INTERESTS OF LABOR,
THEY WOULD PUBLISH A SPECIAL EDITION OF THEIR PAPER AND WOULD PUT THAT
SPECIAL EDITION INTO CIRCULATION IN THE AREA WHERE THAT CANDIDATE WAS
RUNNING FOR OFFICE, AND WOULD PLACE IT IN THE HANDS OF LABOR-UNION
MEMBERS AND ALSO IN THE HANDS OF THE PUBLIC GENERALLY. 

"MR. TAFT.  THAT IS EXACTLY WHAT THEY SHOULD NOT BE ALLOWED TO DO. 

"MR. PEPPER.  VERY WELL; I WANT IT DEFINITELY UNDERSTOOD THAT THE
SENATOR FROM OHIO INTENDS TO OUTLAW THAT PRIVILEGE ON THE PART OF
LABOR.  NOW THAT I HAVE THAT CLEAR - 

"MR. TAFT.  IT IS PERFECTLY CLEAR.  IT IS PERFECTLY CLEAR THAT UNION
FUNDS ARE NOT TO BE USED TO INTERFERE IN POLITICAL CAMPAIGNS AND WITH
POLITICAL CANDIDATES, EITHER IN FAVOR OF ONE CANDIDATE OR AGAINST
ANOTHER CANDIDATE.  ..."  (ID. 6437.) 

     .         .         .         .         . 

"MR. BARKLEY.  SO IF THERE IS A LABOR ORGANIZATION WHICH IS PUBLISHING
A NEWSPAPER - NOT AS A POLITICAL NEWSPAPER, BUT FOR THE BENEFIT OF ITS
MEMBERS - AND IF THE EXPENSES OF THAT PUBLICATION AND DISTRIBTUION ARE
PAID FROM THE FUNDS RAISED BY MEANS OF THE PAYMENT OF DUES, AND IF ALL
MEMBERS OF THE UNION UNDERSTAND THAT A CERTAIN PORTION OF THEIR DUES
GOES TO THE PUBLICATION OF THAT NEWSPAPER, THEN IN ORDER FOR THAT
NEWSPAPER TO TAKE ANY POSITION WITH RESPECT TO ANY CANDIDATE, IT WOULD
HAVE TO CHARGE A SUBSCRIPTION BY THE MONTH OR BY THE YEAR, IN ORDER
THAT IT MIGHT EXPRESS ITS VIEWS IN THAT RESPECT; IS THAT SO? 

"MR. TAET.  I AM INCLINED TO THINK SO, JUST AS A CORPORATION GETS OUT
REGULAR HOUSE ORGANS TO ITS MEMBERS, AND IF THAT CORPORATION INTERFERES
IN A POLITICAL ELECTION THROUGH ONE OF THOSE HOUSE ORGANS IT VIOLATES
THE CORRUPT PRACTICES ACT.  ..."  (ID. 6437-6438.) 

     .         .         .         .         . 

"MR. MAGNUSON.  IN ORDER TO DETERMINE THE MEANING OF THAT, LET US
ASSUME A CONCRETE EXAMPLE.  THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS
HAVE A NEWSPAPER, WHICH THEY HAVE PUBLISHED FOR MANY YEARS.  IT HAS A
CIRCULATION OF PROBABLY 200,000.  IT IS DISTRIBUTED TO MEMBERS.  ON THE
NEWSSTAND, NO PRICE APPEARS ON IT.  NO ADVERTISEMENTS ARE ACCEPTED. 
UNDER THIS PROHIBITION, WOULD THEY BE PROHIBITED IN THE FUTURE FROM
MENTIONING IN THEIR EDITORIAL COLUMNS, FOR THEIR REGULAR CIRCULATION,
WITHOUT ADDING ANYTHING ADDITIONAL, THE SUPPORT OF A CERTAIN CANDIDATE
OR A CERTAIN POLITICAL PARTY? 

"MR. TAFT.  WE DISCUSSED THAT.  WE DISCUSSED THE QUESTION OF WHETHER
OR NOT THAT NEWSPAPER WAS SUPPORTED IN EFFECT BY CONTRIBUTIONS OF
CORPORATIONS OR LABOR ORGANIZATIONS, OR WAS PAID FOR BY THE PEOPLE WHO
RECEIVED IT.  IF THE LATTER, I DO NOT THINK IT WAS AN EXPENDITURE OF
UNION FUNDS OR CONTRIBUTIONS, BUT IF THE UNION SIMPLY TAKES THE UNION
FUNDS AND PUBLISHES A NEWSPAPER AND USES IT AS A POLITICAL ORGAN IN AN
EFFORT TO ELECT OR TO DEFEAT ONE MAN THAT IS PROHIBITED."  (ID. 6439
6440.) 

     .         .         .         .         . 

"MR. MAGNUSON.  ...  IF THE PENDING BILL SHOULD BECOME LAW IT WOULD
MEAN THAT ALL LABOR ORGANS WHICH ARE NOW IN EXISTENCE WOULD, FROM NOW
ON, BE PROHIBITED FROM PARTICIPATING IN A CAMPAIGN, FAVORING A
CANDIDATE, MENTIONING HIS NAME, OR ENDORSING HIM FOR PUBLIC OFFICE? 

"MR. TAFT.  NO; I DO NOT THINK IT MEANS THAT.  THE UNION CAN ISSUE A
NEWSPAPER, AND CAN CHARGE THE MEMBERS FOR THE NEWSPAPER, THAT IS, THE
MEMBERS WHO BUY COPIES OF THE NEWSPAPER, AND THE UNION CAN PUT SUCH
MATTERS IN THE NEWSPAPER IF IT WANTS TO.  THE UNION CAN SEPARATE THE
PAYMENT OF DUES FROM THE PAYMENT FOR A NEWSPAPER IF ITS MEMBERS ARE
WILLING TO DO SO, THAT IS, IF THE MEMBERS ARE WILLING TO SUBSCRIBE TO
THAT KIND OF A NEWSPAPER.  I PRESUME THE MEMBERS WOULD BE WILLING TO DO
SO.  A UNION CAN PUBLISH SUCH A NEWSPAPER, OR UNIONS CAN DO AS WAS DONE
LAST YEAR, ORGANIZE SOMETHING LIKE THE PAC, A POLITICAL ORGANIZATION,
AND RECEIVE DIRECT CONTRIBUTIONS, JUST SO LONG AS MEMBERS OF THE UNION
KNOW WHAT THEY ARE CONTRIBUTING TO, AND THE DUES WHICH THEY PAY INTO
THE UNION TREASURY ARE NOT USED FOR SUCH PURPOSE."  (ID. 6440.) 
..END :







LUDECKE V. WATKINS, 335 U.S. 160 


NO. 723.  ARGUED MAY 3-4, 1948.  - DECIDED JUNE 21, 1948.  - 163 F.2D
143, AFFIRMED. 


UNDER AUTHORITY OF THE ALIEN ENEMY ACT OF 1798, WHICH EMPOWERS THE
PRESIDENT, WHENEVER THERE IS A "DECLARED WAR" BETWEEN THE UNITED STATES
AND ANY FOREIGN COUNTRY, TO PROVIDE FOR THE REMOVAL OF ALIEN ENEMIES
FROM THE UNITED STATES, THE PRESIDENT, ON JULY 14, 1945, DIRECTED THE
REMOVAL OF ALL ALIEN ENEMIES "DEEMED BY THE ATTORNEY GENERAL TO BE
DANGEROUS" TO THE PUBLIC SAFETY.  THE ATTORNEY GENERAL, ON JANUARY 18,
1946, ORDERED REMOVAL OF PETITIONER, A GERMAN NATIONAL, FROM THE UNITED
STATES.  CHALLENGING THE VALIDITY OF THE REMOVAL ORDER, PETITIONER
INSTITUTED HABEAS CORPUS PROCEEDINGS IN THE FEDERAL DISTRICT COURT TO
SECURE HIS RELEASE FROM DETENTION UNDER THE ORDER.  HELD: 

1. THE ALIEN ENEMY ACT PRECLUDES JUDICIAL REVIEW OF THE REMOVAL
ORDER.  PP. 163-166. 

2.  IN THE CIRCUMSTANCES OF RELATIONS BETWEEN THE UNITED STATES AND
GERMANY, THERE EXISTS A "DECLARED WAR" NOTWITHSTANDING THE CESSATION OF
ACTUAL HOSTILITIES, AND THE ORDER IS ENFORCEABLE.  PP. 166-170. 

3.  THE ALIEN ENEMY ACT, CONSTRUED AS PERMITTING RESORT TO THE COURTS
ONLY TO CHALLENGE ITS VALIDITY AND CONSTRUCTION, AND TO RAISE QUESTIONS
OF THE EXISTENCE OF A "DECLARED WAR" AND OF ALIEN ENEMY STATUS, DOES
NOT VIOLATE THE BILL OF RIGHTS OF THE FEDERAL CONSTITUTION.  PP. 170
171. 

4.  THE FACT THAT HEARINGS ARE UTILIZED BY THE EXECUTIVE TO SECURE AN
INFORMED BASIS FOR THE EXERCISE OF THE SUMMARY POWER CONFERRED BY THE
ACT DOES NOT EMPOWER THE COURTS TO RETRY SUCH HEARINGS, NOR DOES IT
MAKE THE WITHHOLDING OF SUCH POWER FROM THE COURTS A DENIAL OF DUE
PROCESS.  PP. 171-172. 

LUDECKE V. WATKINS, DISTRICT DIRECTOR OF IMMIGRATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

PETITIONER, IN CUSTODY UNDER AN ORDER OF THE ATTORNEY GENERAL FOR HIS
REMOVAL FROM THE UNITED STATES UNDER THE ALIEN ENEMY ACT, APPLIED TO
THE DISTRICT COURT FOR A WRIT OF HABEAS CORPUS FOR RELEASE FROM
DETENTION UNDER THE ORDER.  THE DISTRICT COURT'S DENIAL OF THE WRIT WAS
AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  163 F.2D 143.  THIS COURT
GRANTED CERTIORARI.  333 U.S. 865.  AFFIRMED, P. 173. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE FIFTH CONGRESS COMMITTED TO THE PRESIDENT THESE POWERS: 

"WHENEVER THERE IS A DECLARED WAR BETWEEN THE UNITED STATES AND ANY
FOREIGN NATION OR GOVERNMENT, OR ANY INVASION OR PREDATORY INCURSION IS
PERPETRATED, ATTEMPTED, OR THREATENED AGAINST THE TERRITORY OF THE
UNITED STATES BY ANY FOREIGN NATION OR GOVERNMENT, AND THE PRESIDENT
MAKES PUBLIC PROCLAMATION OF THE EVENT, ALL NATIVES, CITIZENS,
DENIZENS, OR SUBJECTS OF THE HOSTILE NATION OR GOVERNMENT, BEING OF THE
AGE OF FOURTEEN YEARS AND UPWARD, WHO SHALL BE WITHIN THE UNITED STATES
AND NOT ACTUALLY NATURALIZED, SHALL BE LIABLE TO BE APPREHENDED,
RESTRAINED, SECURED, AND REMOVED AS ALIEN ENEMIES.  THE PRESIDENT IS
AUTHORIZED, IN ANY SUCH EVENT, BY HIS PROCLAMATION THEREOF, OR OTHER
PUBLIC ACT, TO DIRECT THE CONDUCT TO BE OBSERVED, ON THE PART OF THE
UNITED STATES, TOWARD THE ALIENS WHO BECOME SO LIABLE; THE MANNER AND
DEGREE OF THE RESTRAINT TO WHICH THEY SHALL BE SUBJECT AND IN WHAT
CASES, AND UPON WHAT SECURITY THEIR RESIDENCE SHALL BE PERMITTED, AND
TO PROVIDE FOR THE REMOVAL OF THOSE WHO, NOT BEING PERMITTED TO RESIDE
WITHIN THE UNITED STATES, REFUSE OR NEGLECT TO DEPART THEREFROM; AND TO
ESTABLISH ANY OTHER REGULATIONS WHICH ARE FOUND NECESSARY IN THE
PREMISES AND FOR THE PUBLIC SAFETY."  (ACT OF JULY 6, 1798, 1 STAT.
577, R.S. SEC. 4067, AS AMENDED, 40 STAT. 531, 50 U.S.C. SEC. 21.) 

THIS ALIEN ENEMY ACT HAS REMAINED THE LAW OF THE LAND, VIRTUALLY
UNCHANGED SINCE 1798.  FN1 THROUGHOUT THESE ONE HUNDRED AND FIFTY YEARS
EXECUTIVE INTERPRETATION AND DECISIONS OF LOWER COURTS HAVE FOUND IN
THE ACT AN AUTHORITY FOR THE PRESIDENT WHICH IS NOW QUESTIONED, AND THE
FURTHER CLAIM IS MADE THAT, IF WHAT THE PRESIDENT DID COMES WITHIN THE
ACT, THE CONGRESS COULD NOT GIVE HIM SUCH POWER.  FN2  OBVIOUSLY THESE
ARE ISSUES WHICH PROPERLY BROUGHT THE CASE HERE.  333 U.S. 865. 

PETITIONER, A GERMAN ALIEN ENEMY,  FN3  WAS ARRESTED ON DECEMBER 8,
1941, AND, AFTER PROCEEDINGS BEFORE AN ALIEN ENEMY HEARING BOARD ON
JANUARY 16, 1942, WAS INTERNED BY ORDER OF THE ATTORNEY GENERAL, DATED
FEBRUARY 9, 1942.  FN4  UNDER AUTHORITY OF THE ACT OF 1798, THE
PRESIDENT, ON JULY 14, 1945, DIRECTED THE REMOVAL FROM THE UNITED
STATES OF ALL ALIEN ENEMIES "WHO SHALL BE DEEMED BY THE ATTORNEY
GENERAL TO BE DANGEROUS TO THE PUBLIC PEACE AND SAFETY OF THE UNITED
STATES."  PROCLAMATION 2655, 10 FED. REG. 8947.  ACCORDINGLY, THE
ATTORNEY GENERAL, ON JANUARY 18, 1946, ORDERED PETITIONER'S REMOVAL. 
FN5  DENIAL OF A WRIT OF HABEAS CORPUS FOR RELEASE FROM DETENTION UNDER
THIS ORDER WAS AFFIRMED BY THE COURT BELOW.  163 F.2D 143. 

AS CONGRESS EXPLICITLY RECOGNIZED IN THE RECENT ADMINISTRATIVE
PROCEDURE ACT, SOME STATUTES "PRECLUDE JUDICIAL REVIEW."  ACT OF JUNE
11, 1946, SEC. 10, 60 STAT. 237, 243.  BARRING QUESTIONS OF
INTERPRETATION AND CONSTITUTIONALITY, THE ALIEN ENEMY ACT OF 1798 IS
SUCH A STATUTE.  ITS TERMS, PURPOSE, AND CONSTRUCTION LEAVE NO DOUBT. 
THE LANGUAGE EMPLOYED BY THE FIFTH CONGRESS COULD HARDLY BE MADE
CLEARER, OR BE RENDERED DOUBTFUL, BY THE INCOMPLETE AND NOT ALWAYS
DEPENDABLE ACCOUNTS WE HAVE OF DEBATES IN THE EARLY YEARS OF CONGRESS. 
FN6  THAT SUCH WAS THE SCOPE OF THE ACT IS ESTABLISHED BY CONTROLLING
CONTEMPORANEOUS CONSTRUCTION.  "THE ACT CONCERNING ALIEN ENEMIES, WHICH
CONFERS ON THE PRESIDENT VERY GREAT DISCRETIONARY POWERS RESPECTING
THEIR PERSONS," MARSHALL, C. J., IN BROWN V. UNITED STATES, 8 CRANCH
110, 126, "APPEARS TO ME TO BE AS UNLIMITED AS THE LEGISLATURE COULD
MAKE IT."  WASHINGTON, J., IN LOCKINGTON V. SMITH, 15 FED. CAS. NO.
8448 AT P. 760.  THE VERY NATURE OF THE PRESIDENT'S POWER TO ORDER THE
REMOVAL OF ALL ENEMY ALIENS REJECTS THE NOTION THAT COURTS MAY PASS
JUDGMENT UPON THE EXERCISE OF HIS DISCRETION.  FN7  THIS VIEW WAS
EXPRESSED BY MR. JUSTICE IREDELL SHORTLY AFTER THE ACT WAS PASSED, CASE
OF FRIES, 9 FED. CAS. NO. 5126, AND EVERY JUDGE BEFORE WHOM THE
QUESTION HAS SINCE COME HAS HELD THAT THE STATUTE BARRED JUDICIAL
REVIEW.  FN8  WE WOULD SO READ THE ACT IF IT CAME BEFORE US WITHOUT THE
IMPRESSIVE GLOSS OF HISTORY. 

THE POWER WITH WHICH CONGRESS VESTED THE PRESIDENT HAD TO BE EXECUTED
BY HIM THROUGH OTHERS.  HE PROVIDED FOR THE REMOVAL OF SUCH ENEMY
ALIENS AS WERE "DEEMED BY THE ATTORNEY GENERAL" TO BE DANGEROUS.  FN9
BUT SUCH A FINDING, AT THE PRESIDENT'S BEHEST, WAS LIKEWISE NOT TO BE
SUBJECTED TO THE SCRUTINY OF COURTS.  FOR ONE THING, REMOVAL WAS
CONTINGENT NOT UPON A FINDING THAT IN FACT AN ALIEN WAS "DANGEROUS." 
THE PRESIDENT WAS CAREFUL TO CALL FOR THE REMOVAL OF ALIENS "DEEMED BY
THE ATTORNEY GENERAL TO BE DANGEROUS."  BUT THE SHORT ANSWER IS THAT
THE ATTORNEY GENERAL WAS THE PRESIDENT'S VOICE AND CONSCIENCE.  A WAR
POWER OF THE PRESIDENT NOT SUBJECT TO JUDICIAL REVIEW IS NOT TRANSMUTED
INTO A JUDICIALLY REVIEWABLE ACTION BECAUSE THE PRESIDENT CHOOSES TO
HAVE THAT POWER EXERCISED WITHIN NARROWER LIMITS THAN CONGRESS
AUTHORIZED. 

AND SO WE REACH THE CLAIM THAT WHILE THE PRESIDENT HAD SUMMARY POWER
UNDER THE ACT, IT DID NOT SURVIVE CESSATION OF ACTUAL HOSTILITIES. 
FN10  THIS CLAIM IN EFFECT NULLIFIES THE POWER TO DEPORT ALIEN ENEMIES,
FOR SUCH DEPORTATIONS ARE HARDLY PRACTICABLE DURING THE PENDENCY OF
WHAT IS COLLOQUIALLY KNOWN AS THE SHOOTING WAR.  FN11  NOR DOES LAW LAG
BEHIND COMMON SENSE.  WAR DOES NOT CEASE WITH A CEASE-FIRE ORDER, AND
POWER TO BE EXERCISED BY THE PRESIDENT SUCH AS THAT CONFERRED BY THE
ACT OF 1798 IS A PROCESS WHICH BEGINS WHEN WAR IS DECLARED BUT IS NOT
EXHAUSTED WHEN THE SHOOTING STOPS.  FN12  SEE UNITED STATES V.
ANDERSON, 9 WALL.  56, 70; THE PROTECTOR, 12 WALL.  700; MCELRATH V.
UNITED STATES, 102 U.S. 426, 438; HAMILTON V. KENTUCKY DISTILLERIES
CO., 251 U.S. 146, 167.  "THE STATE OF WAR" MAY BE TERMINATED BY TREATY
OR LEGISLATION OR PRESIDENTIAL PROCLAMATION.  WHATEVER THE MODE, ITS
TERMINATION IS A POLITICAL ACT.  FN13  IBID.  WHETHER AND WHEN IT WOULD
BE OPEN TO THIS COURT TO FIND THAT A WAR THOUGH MERELY FORMALLY KEPT
ALIVE HAD IN FACT ENDED, IS A QUESTION TOO FRAUGHT WITH GRAVITY EVEN TO
BE ADEQUATELY FORMULATED WHEN NOT COMPELLED.  ONLY A FEW MONTHS AGO THE
COURT REJECTED THE CONTENTION THAT THE STATE OF WAR IN RELATION TO
WHICH THE PRESIDENT HAS EXERCISED THE AUTHORITY NOW CHALLENGED WAS
TERMINATED.  WOODS V. MILLER CO., 333 U.S. 138.  NOTHING THAT HAS
HAPPENED SINCE CALLS FOR A QUALIFICATION OF THAT VIEW.  FN14  IT IS
STILL TRUE, AS WAS SAID IN THE OPINION IN THAT CASE WHICH EYED THE WAR
POWER MOST JEALOUSLY, "WE HAVE ARMIES ABROAD EXERCISING OUR WAR POWER
AND HAVE MADE NO PEACE TERMS WITH OUR ALLIES, NOT TO MENTION OUR
PRINCIPAL ENEMIES."  WOODS V. MILLER CO., SUPRA, AT P. 147(CONCURRING
OPINION).  THE SITUATION TODAY IS STRIKINGLY SIMILAR TO THAT OF 1919,
WHERE THIS COURT OBSERVED:  "IN VIEW OF FACTS OF PUBLIC KNOWLEDGE, SOME
OF WHICH HAVE BEEN REFERRED TO, THAT THE TREATY OF PEACE HAS NOT YET
BEEN CONCLUDED, THAT THE RAILWAYS ARE STILL UNDER NATIONAL CONTROL BY
VIRTUE OF THE WAR POWERS, THAT OTHER WAR ACTIVITIES HAVE NOT BEEN
BROUGHT TO A CLOSE, AND THAT IT CAN NOT EVEN BE SAID THAT THE MAN POWER
OF THE NATION HAS BEEN RESTORED TO A PEACE FOOTING, WE ARE UNABLE TO
CONCLUDE THAT THE ACT HAS CEASED TO BE VALID."  HAMILTON V. KENTUCKY
DISTILLERIES CO., 251 U.S. AT 163. 

THE POLITICAL BRANCH OF THE GOVERNMENT HAS NOT BROUGHT THE WAR WITH
GERMANY TO AN END.  ON THE CONTRARY, IT HAS PROCLAIMED THAT "A STATE OF
WAR STILL EXISTS."  PRESIDENTIAL PROCLAMATION 2714, 12 FED. REG. 1; SEE
WOODS V. MILLER CO., SUPRA, AT P. 140; FLEMING V. MOHAWK WRECKING &
LUMBER CO., 331 U.S. 111, 116.  THE COURT WOULD BE ASSUMING THE
FUNCTIONS OF THE POLITICAL AGENCIES OF THE GOVERNMENT TO YIELD TO THE
SUGGESTION THAT THE UNCONDITIONAL SURRENDER OF GERMANY AND THE
DISINTEGRATION OF THE NAZI REICH HAVE LEFT GERMANY WITHOUT A GOVERNMENT
CAPABLE OF NEGOTIATING A TREATY OF PEACE.  IT IS NOT FOR US TO QUESTION
A BELIEF BY THE PRESIDENT THAT ENEMY ALIENS WHO WERE JUSTIFIABLY DEEMED
FIT SUBJECTS FOR INTERNMENT DURING ACTIVE HOSTILITIES DO NOT LOSE THEIR
POTENCY FOR MISCHIEF DURING THE PERIOD OF CONFUSION AND CONFLICT WHICH
IS CHARACTERISTIC OF A STATE OF WAR EVEN WHEN THE GUNS ARE SILENT BUT
THE PEACE OF PEACE HAS NOT COME.  FN15  THESE ARE MATTERS OF POLITICAL
JUDGMENT FOR WHICH JUDGES HAVE NEITHER TECHNICAL COMPETENCE NOR
OFFICIAL RESPONSIBILITY. 

THIS BRINGS US TO THE FINAL QUESTION.  IS THE STATUTE VALID AS WE
HAVE CONSTRUED IT?  THE SAME CONSIDERATIONS OF REASON, AUTHORITY, AND
HISTORY, THAT LED US TO REJECT READING THE STATUTORY LANGUAGE "DECLARED
WAR"  FN16  TO MEAN "ACTUAL HOSTILITIES," SUPPORT THE VALIDITY OF THE
STATUTE.  THE WAR POWER IS THE WAR POWER.  IF THE WAR, AS WE HAVE HELD,
HAS NOT IN FACT ENDED, SO AS TO JUSTIFY LOCAL RENT CONTROL, A FORTIORI,
IT VALIDLY SUPPORTS THE POWER GIVEN TO THE PRESIDENT BY THE ACT OF 1798
IN RELATION TO ALIEN ENEMIES.  NOR DOES IT REQUIRE PROTRACTED ARGUMENT
TO FIND NO DEFECT IN THE ACT BECAUSE RESORT TO THE COURTS MAY BE HAD
ONLY TO CHALLENGE THE CONSTRUCTION AND VALIDITY OF THE STATUTE AND TO
QUESTION THE EXISTENCE OF THE "DECLARED WAR," AS HAS BEEN DONE IN THIS
CASE.  FN17  THE ACT IS ALMOST AS OLD AS THE CONSTITUTION, AND IT WOULD
SAVOR OF DOCTRINAIRE AUDACITY NOW TO FIND THE STATUTE OFFENSIVE TO SOME
EMANATION OF THE BILL OF RIGHTS.  FN18  THE FACT THAT HEARINGS ARE
UTILIZED BY THE EXECUTIVE TO SECURE AN INFORMED BASIS FOR THE EXERCISE
OF SUMMARY POWER DOES NOT ARGUE THE RIGHT OF COURTS TO RETRY SUCH
HEARINGS, NOR BESPEAK DENIAL OF DUE PROCESS TO WITHHOLD SUCH POWER FROM
THE COURTS. 

SUCH GREAT WAR POWERS MAY BE ABUSED, NO DOUBT, BUT THAT IS A BAD
REASON FOR HAVING JUDGES SUPERVISE THEIR EXERCISE, WHATEVER THE LEGAL
FORMULAS WITHIN WHICH SUCH SUPERVISION WOULD NOMINALLY BE CONFINED.  IN
RELATION TO THE DISTRIBUTION OF CONSTITUTIONAL POWERS AMONG THE THREE
BRANCHES OF THE GOVERNMENT, THE OPTIMISTIC EIGHTEENTH CENTURY LANGUAGE
OF MR. JUSTICE IREDELL, SPEAKING OF THIS VERY ACT, IS STILL PERTINENT: 

"ALL SYSTEMS OF GOVERNMENT SUPPOSE THEY ARE TO BE ADMINISTERED BY MEN
OF COMMON SENSE AND COMMON HONESTY.  IN OUR COUNTRY, AS ALL ULTIMATELY
DEPENDS ON THE VOICE OF THE PEOPLE, THEY HAVE IT IN THEIR POWER, AND IT
IS TO BE PRESUMED THEY GENERALLY WILL CHOOSE MEN OF THIS DESCRIPTION;
BUT IF THEY WILL NOT, THE CASE, TO BE SURE, IS WITHOUT REMEDY.  IF THEY
CHOOSE FOOLS, THEY WILL HAVE FOOLISH LAWS.  IF THEY CHOOSE KNAVES, THEY
WILL HAVE KNAVISH ONES.  BUT THIS CAN NEVER BE THE CASE UNTIL THEY ARE
GENERALLY FOOLS OR KNAVES THEMSELVES, WHICH, THANK GOD, IS NOT LIKELY
EVER TO BECOME THE CHARACTER OF THE AMERICAN PEOPLE."  (CASE OF FRIES,
SUPRA, AT P. 836.) 

ACCORDINGLY, WE HOLD THAT FULL RESPONSIBILITY FOR THE JUST EXERCISE
OF THIS GREAT POWER MAY VALIDLY BE LEFT WHERE THE CONGRESS HAS
CONSTITUTIONALLY PLACED IT - ON THE PRESIDENT OF THE UNITED STATES. 
THE FOUNDERS IN THEIR WISDOM MADE HIM NOT ONLY THE COMMANDER-IN-CHIEF
BUT ALSO THE GUIDING ORGAN IN THE CONDUCT OF OUR FOREIGN AFFAIRS.  HE
WHO WAS ENTRUSTED WITH SUCH VAST POWERS IN RELATION TO THE OUTSIDE
WORLD WAS ALSO ENTRUSTED BY CONGRESS, ALMOST THROUGHOUT THE WHOLE LIFE
OF THE NATION, WITH THE DISPOSITION OF ALIEN ENEMIES DURING A STATE OF
WAR.  SUCH A PAGE OF HISTORY IS WORTH MORE THAN A VOLUME OF RHETORIC. 
FN19  JUDGMENT AFFIRMED AND STAY ORDER ENTERED FEBRUARY 2, 1948,
VACATED. 

FN1  THERE HAVE BEEN A FEW MINOR CHANGES IN WORDING.  WE HAVE DULY
CONSIDERED THESE IN LIGHT OF AN ARGUMENT IN THE BRIEF OF THE AMICI
CURIAE AND DEEM THEM WITHOUT SIGNIFICANCE. 

FN2  WE ARE ADVISED THAT THERE ARE 530 ALIEN ENEMIES, ORDERED TO
DEPART FROM THE UNITED STATES, WHOSE DISPOSITION AWAITS THE OUTCOME OF
THIS CASE. 

FN3  THE DISTRICT COURT FOUND THAT: 

"THE PETITIONER WAS BORN IN BERLIN, GERMANY, ON FEBRUARY 5, 1890.  HE
WAS OUT OF GERMANY FOR MOST OF THE PERIOD OF 1923 TO MARCH 1933.  HE
RETURNED TO GERMANY IN MARCH 1933 AND BECAME A MEMBER OF THE NAZI
PARTY.  LATER HE HAD SOME DISAGREEMENTS WITH OTHER MEMBERS AND AS A
RESULT HE WAS SENT TO A GERMAN CONCENTRATION CAMP, FROM WHICH HE
ESCAPED MARCH 1, 1934, AFTER BEING CONFINED FOR OVER EIGHT MONTHS. 
SOMETIME THEREAFTER HE CAME TO THIS COUNTRY AND PUBLISHED A BOOK, 'I
KNEW HITLER' ('THE STORY OF A NAZI WHO ESCAPED THE BLOOD PURGE' - 'IN
MEMORY OF CAPTAIN ERNST ROEHM AND GREGOR STRASSER AND MANY OTHER NAZIS
WHO WERE BETRAYED, MURDERED, AND TRADUCED IN THEIR GRAVES'), IN 1937. 
HIS PETITION FOR NATURALIZATION AS AN AMERICAN CITIZEN WAS DENIED
DECEMBER 18, 1939." 

THE PETITIONER'S ATTITUDE WAS THUS EXPRESSED IN HIS BRIEF BEFORE THE
DISTRICT COURT:    "FUNDAMENTALLY, IT MATTERS NOT WHERE I LIVE, FOR I
CAN STRIVE TO LIVE THE RIGHT LIFE AND BE OF SERVICE WHERE EVER I AM.
BESIDES, IT MAY WELL BE A BETTER THING TO DO THE BEST I CAN WHILE I CAN
IN THE MIDST OF A DEFEATED PEOPLE SUFFERING IN BODY AND SOUL, THAN TO
BE A FUTILE AND FRUSTRATED SOMETHING IN THE MIDST OF A TRIUMPHANT
PEOPLE BREATHING THE FOUL AIR OF SELF-COMPLACENCY, HYPOCRISY, AND SELF
DECEIT." 

FN4  NO QUESTION HAS BEEN RAISED AS TO THE VALIDITY OF THESE
ADMINISTRATIVE ACTIONS TAKEN PURSUANT TO PRESIDENTIAL PROCLAMATION
2526, DATED DECEMBER 7, 1941, 6 FED. REG. 6321, 6323, ISSUED UNDER THE
AUTHORITY OF THE ALIEN ENEMY ACT.    FN5  THE ORDER RECITED THAT THE
PETITIONER WAS DEEMED DANGEROUS ON THE BASIS OF THE EVIDENCE ADDUCED AT
HEARINGS BEFORE THE ALIEN ENEMY HEARING BOARD ON JANUARY 16, 1942, AND
THE REPATRIATION HEARING BOARD ON DECEMBER 17, 1945.  THE DISTRICT
COURT WHICH EXAMINED THESE PROCEEDINGS FOUND THAT PETITIONER HAD NOTICE
AND A FAIR HEARING AND THAT THE EVIDENCE WAS SUBSTANTIAL.  SEE ALSO
NOTE 8, INFRA. 

FN6  SEE, HOWEVER, UNITED STATES EX REL. KESSLER V. WATKINS, 163 F.2D
140; CITIZENS PROTECTIVE LEAGUE V. CLARK, 81 U.S. APP. D.C. 116, 155
F.2D 290. 

FN7  "SUCH A CONSTRUCTION WOULD, IN MY OPINION, BE AT VARIANCE WITH
THE SPIRIT AS WELL AS WITH THE LETTER OF THE LAW, THE GREAT OBJECT OF
WHICH WAS TO PROVIDE FOR THE PUBLIC SAFETY, BY IMPOSING SUCH RESTRAINTS
UPON ALIEN ENEMIES, AS THE CHIEF EXECUTIVE MAGISTRATE OF THE UNITED
STATES MIGHT THINK NECESSARY, AND OF WHICH HIS PARTICULAR SITUATION
ENABLED HIM BEST TO JUDGE.  ...  I DO NOT FEEL MYSELF AUTHORISED TO
IMPOSE LIMITS TO THE AUTHORITY OF THE EXECUTIVE MAGISTRATE WHICH
CONGRESS, IN THE EXERCISE OF ITS CONSTITUTIONAL POWERS, HAS NOT SEEN
FIT TO IMPOSE.  NOTHING IN SHORT, CAN BE MORE CLEAR TO MY MIND, FROM AN
ATTENTIVE CONSIDERATION OF THE ACT IN ALL ITS PARTS, THAN THAT CONGRESS
INTENDED TO MAKE THE JUDICIARY AUXILIARY TO THE EXECUTIVE, IN EFFECTING
THE GREAT OBJECTS OF THE LAW; AND THAT EACH DEPARTMENT WAS INTENDED TO
ACT INDEPENDENTLY OF THE OTHER, EXCEPT THAT THE FORMER WAS TO MAKE THE
ORDINANCES OF THE LATTER, THE RULE OF ITS DECISIONS."  LOCKINGTON V.
SMITH, SUPRA, AT P. 761. 

FN8  CITIZENS PROTECTIVE LEAGUE V. CLARK, 81 U.S. APP. D.C. 116, 155
F.2D 290; UNITED STATES EX REL. SCHLUETER V. WATKINS, 158 F.2D 853;
UNITED STATES EX REL. HACK V. CLARK, 159 F.2D 552; UNITED STATES EX
REL. KESSLER V. WATKINS, 163 F.2D 140; UNITED STATES EX REL. VON
ASCHEBERG V. WATKINS, 163 F.2D 1021; MINOTTO V. BRADLEY, 252 F. 600;
SEE LOCKINGTON'S CASE, BRIGHTLY (PA.)  269, 280; LOCKINGTON V. SMITH,
15 F. CAS. NO. 8448, AT P. 758; EX PARTE GRABER, 247 F. 882; DE LACEY
V. UNITED STATES, 249 F. 625; EX PARTE FRONKLIN, 253 F. 984; GRAHL V.
UNITED STATES, 261 F. 487; CF. BANNING V. PENROSE, 255 F. 159; EX PARTE
RISSE, 257 F. 102; EX PARTE GILROY, 257 F. 110; UNITED STATES EX REL.
DE CICCO V. LONGO, 46 F.SUPP.  170; UNITED STATES EX REL. SCHWARZKOPF
V. UHL, 137 F.2D 898; UNITED STATES EX REL. D'ESQUIVA V. UHL, 137 F.2D
903; UNITED STATES EX REL. KNAUER V. JORDAN, 158 F.2D 337.  THE ONE
EXCEPTION IS THE INITIAL VIEW TAKEN BY THE DISTRICT COURT IN THIS
CASE.  IT REJECTED THE "CONTENTION THAT THE ONLY QUESTION THAT THE
COURT MAY CONSIDER IN THIS HABEAS CORPUS PROCEEDING IS THE PETITIONER'S
ALIEN ENEMY STATUS, ALTHOUGH THERE ARE CASES WHICH GIVE SUPPORT TO THAT
VIEW," BUT HELD THE PETITIONER HAD HAD A FAIR HEARING BEFORE THE
REPATRIATION BOARD AND THAT THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT
THE ATTORNEY GENERAL'S DETERMINATION THAT PETITIONER WAS "DANGEROUS." 
ON REHEARING, THE COURT NOTED THAT THE SCHLUETER CASE, SUPRA,
FORECLOSED THE ISSUE. 

FN9  IF THE PRESIDENT HAD NOT ADDED THIS EXPRESS QUALIFICATION, BUT
HAD CONFORMED HIS PROCLAMATION TO THE STATUTORY LANGUAGE, PRESUMABLY
THE ATTORNEY GENERAL WOULD NOT HAVE ACTED ARBITRARILY BUT WOULD HAVE
UTILIZED SOME SUCH IMPLIED STANDARD AS "DANGEROUS" IN HIS EXERCISE OF
THE DELEGATED POWER. 

FN10  "THE CESSATION OF HOSTILITIES DOES NOT NECESSARILY END THE WAR
POWER.  IT WAS STATED IN HAMILTON V. KENTUCKY DISTILLERIES & W. CO.,
251 U.S. 146, 161, THAT THE WAR POWER INCLUDES THE POWER 'TO REMEDY THE
EVILS WHICH HAVE ARISEN FROM ITS RISE AND PROGRESS' AND CONTINUES
DURING THAT EMERGENCY.  STEWART V. KAHN, 11 WALL.  493, 507.  WHATEVER
MAY BE THE REACH OF THAT POWER, IT IS PLAINLY ADEQUATE TO DEAL WITH
PROBLEMS OF LAW ENFORCEMENT WHICH ARISE DURING THE PERIOD OF
HOSTILITIES BUT DO NOT CEASE WITH THEM.  NO MORE IS INVOLVED HERE." 
FLEMING V. MOHAWK WRECKING & LUMBER CO., 331 U.S. 111, 116. 

FN11  THE CLAIM IS SAID TO BE SUPPORTED BY THE LEGISLATIVE HISTORY OF
THE ACT.  WE DO NOT BELIEVE THAT THE PARAPHRASED EXPRESSIONS OF A FEW
MEMBERS OF THE FIFTH CONGRESS COULD PROPERLY SANCTION AT THIS LATE DATE
A JUDICIAL READING OF THE STATUTORY PHRASE "DECLARED WAR" TO MEAN
"STATE OF ACTUAL HOSTILITIES."  SEE P. 3, SUPRA.  NOTHING NEEDS TO BE
ADDED TO THE CONSIDERATION WHICH THIS POINT RECEIVED FROM THE COURT
BELOW IN THE KESSLER CASE.  CIRCUIT JUDGE AUGUSTUS HAND, IN THIS CASE
SPEAKING FOR HIMSELF AND CIRCUIT JUDGES L. HAND AND SWAN, SAID: 

"APPELLANTS' COUNSEL ARGUES THAT THE CONGRESSIONAL DEBATES PRECEDING
THE ENACTMENT OF THE ALIEN LAW OF 1798 BY GALLATIN, OTIS AND OTHERS,
SHOW THAT CONGRESS INTENDED THAT 'WAR' AS USED IN THE ALIEN ENEMY ACT
SHOULD BE WAR IN FACT.  WE CANNOT AGREE THAT THE DISCUSSIONS HAD SUCH
AN EFFECT.  GALLATIN ARGUED THAT SECTION 9 OF ART. I OF THE
CONSTITUTION ALLOWING TO THE STATES THE FREE 'MIGRATION OR IMPORTATION'
OF ALIENS UNTIL 1808 MIGHT STAND IN THE WAY OF THE ACT AS PROPOSED IF
IT WAS NOT LIMITED TO A 'STATE OF ACTUAL HOSTILITIES.'  IT HOWEVER WAS
NOT SO LIMITED IN THE TEXT OF THE ACT AND IT IS HARD TO SEE HOW THE
FAILURE TO LIMIT IT IN WORDS INDICATED A DISPOSITION ON THE PART OF
CONGRESS TO LIMIT IT BY IMPLICATION.  OTIS OBJECTED TO LIMITING THE
EXERCISE OF THE POWER TO A STATE OF DECLARED WAR BECAUSE HE THOUGHT
THAT THE PRESIDENT SHOULD HAVE POWER TO DEAL WITH ENEMY ALIENS IN THE
CASE OF HOSTILITIES SHORT OF WAR AND IN CASES WHERE A WAR WAS NOT
DECLARED.  THAT OTIS WISHED TO ADD 'HOSTILITIES' TO THE WORDS 'DECLARED
WAR,' AND FAILED IN HIS ATTEMPT, DOES NOT SHOW THAT CONGRESS MEANT THAT
WHEN WAR WAS DECLARED ACTIVE HOSTILITIES MUST EXIST IN ORDER TO JUSTIFY
THE EXERCISE OF THE POWER.  THE QUESTIONS RAISED WHICH WERE DEALT WITH
IN THE ACT AS FINALLY PASSED WERE NOT HOW LONG THE POWER SHOULD LAST
WHEN PROPERLY INVOKED, BUT THE CONDITIONS UPON WHICH IT MIGHT BE
INVOKED.  THOSE CONDITIONS WERE FULLY MET IN THE PRESENT CASE AND NO
QUESTION IS RAISED BY APPELLANTS' COUNSEL AS TO THE PROPRIETY OF THE
PRESIDENT'S PROCLAMATION OF WAR.  THERE IS NO INDICATION IN THE DEBATES
OR IN THE TERMS OF THE STATUTE THAT THE EXERCISE OF THE POWER, WHEN
PROPERLY INVOKED, SHOULD CEASE UNTIL PEACE WAS MADE, AND PEACE HAS NOT
BEEN MADE IN THE PRESENT CASE.  IF THE CONSTRUCTION OF THE STATUTE
CONTENDED FOR BY APPELLANTS' COUNSEL WERE ADOPTED, THE EXECUTIVE WOULD
BE POWERLESS TO CARRY OUT INTERNMENT OR DEPORTATION WHICH WAS NOT
EXERCISED DURING ACTIVE WAR AND MIGHT BE OBLIGED TO LEAVE THE COUNTRY
UNPROTECTED FROM ALIENS DANGEROUS EITHER BECAUSE OF SECRETS WHICH THEY
POSSESSED OR BECAUSE OF POTENTIAL INIMICAL ACTIVITIES.  IT SEEMS QUITE
NECESSARY TO SUPPOSE THAT THE PRESIDENT COULD NOT CARRY OUT PRIOR TO
THE OFFICIAL TERMINATION OF THE DECLARED STATE OF WAR, DEPORTATIONS
WHICH THE EXECUTIVE REGARDED AS NECESSARY FOR THE SAFETY OF THE COUNTRY
BUT WHICH COULD NOT BE CARRIED OUT DURING ACTIVE WARFARE BECAUSE OF THE
DANGER TO THE ALIENS THEMSELVES OR THE INTERFERENCE WITH THE EFFECTIVE
CONDUCT OF MILITARY OPERATIONS."  (UNITED STATES EX REL. KESSLER V.
WATKINS, 163 F.2D AT 142-43.) 

FN12 IT IS SUGGESTED THAT A JOINT LETTER TO THE CHAIRMAN OF A
CONGRESSIONAL COMMITTEE BY ATTORNEY GENERAL GREGORY AND THE SECRETARY
OF LABOR IN THE WILSON ADMINISTRATION REFLECTS A CONTRARY
INTERPRETATION OF THIS ACT.  BUT, AS THE KESSLER OPINION POINTED OUT:
"THE LETTER OF ATTORNEY GENERAL GREGORY REFERRED TO BY APPELLANTS'
COUNSEL DOES NOT AFFECT OUR CONCLUSIONS.  WHEN HE SAID THAT THERE WAS
NO LAW TO EXCLUDE ALIENS HE WAS, IN OUR OPINION, PLAINLY REFERRING TO
CONDITIONS AFTER THE RATIFICATION OF THE PEACE TREATY, AND NOT TO PRIOR
CONDITIONS."  IBID.  THE TEXT OF THE LETTER (DATED FEB. 5, 1919)
SUPPORTS THAT OBSERVATION:  "THERE IS NO LAW NOW ON THE STATUTE BOOKS
UNDER WHICH THESE PERSONS CAN BE EXCLUDED FROM THE COUNTRY, NOR UNDER
WHICH THEY CAN BE DETAINED IN CUSTODY AFTER THE RATIFICATION OF THE
PEACE TREATY.  UNLESS THE BILL INTRODUCED BY YOU, OR ONE SIMILAR IN
CHARACTER, IS PASSED IT WILL BECOME NECESSARY ON THE RATIFICATION OF
PEACE TO SET FREE ALL OF THESE HIGHLY DANGEROUS PERSONS."  HEARINGS
BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND NATURALIZATION ON H.R.
6750, 66TH CONG., 1ST SESS., 42-43.  AND ATTORNEY GENERAL PALMER MADE
SUBSTANTIALLY THE SAME STATEMENTS TO THE SENATE AND HOUSE COMMITTEES ON
IMMIGRATION.  SEE S. REP. NO. 283, 66TH CONG., 1ST SESS., 2; H.R. REP.
NO. 143, 66TH CONG., 1ST SESS., 2. 

BUT EVEN IF CONTRADICTORY VIEWS WERE EXPRESSED BY ATTORNEY GENERAL
GREGORY, THEY PLAINLY REFLECT POLITICAL EXIGENCIES WHICH FROM TIME TO
TIME GUIDE THE DESIRE OF AN ADMINISTRATION TO SECURE WHAT IN EFFECT IS
CONFIRMING LEGISLATION.  THE CONFUSION OF VIEWS IS STRIKINGLY
MANIFESTED BY ATTORNEY GENERAL GREGORY'S RECOGNITION THAT THE ACT
SURVIVED THE CESSATION OF ACTUAL HOSTILITIES SO AS TO GIVE AUTHORITY TO
APPREHEND, RESTRAIN, AND SECURE ENEMY ALIENS.  SEE, GENERALLY, WORLD
WAR I CASES CITED NOTE 8, SUPRA.  IN ANY EVENT, EVEN IF ONE VIEW
EXPRESSED BY ATTORNEY GENERAL GREGORY, AS AGAINST ANOTHER EXPRESSED BY
HIM, COULD BE CLAIMED TO INDICATE A DEVIATION FROM AN OTHERWISE
UNIFORMLY ACCEPTED CONSTRUCTION OF THE ACT BEFORE US, IT WOULD HARDLY
TOUCH THE TRUE MEANING OF THE STATUTE.  AS AGAINST THE CONFLICTING
VIEWS OF ONE ATTORNEY GENERAL WE HAVE NOT ONLY THE VIEW BUT THE ACTIONS
OF THE PRESENT ATTORNEY GENERAL AND OF THE PRESIDENT AND THEIR
RATIFICATION BY THE PRESENT CONGRESS.  SEE NOTE 19, INFRA. 

FN13  OF COURSE, THERE ARE STATUTES WHICH HAVE PROVISIONS FIXING THE
DATE OF THE EXPIRATION OF THE WAR POWERS THEY CONFER UPON THE
EXECUTIVE.  SEE, E.G., HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S.
146, 167, N. 1(COLLECTION OF STATUTES PROVIDING THAT THE AUTHORITY
TERMINATES UPON RATIFICATION OF TREATY OF PEACE OR BY PRESIDENTIAL
PROCLAMATION).  CONGRESS CAN, OF COURSE, PROVIDE EITHER BY A DAY
CERTAIN OR A DEFINED EVENT FOR THE EXPIRATION OF A STATUTE.  BUT WHEN
THE LIFE OF A STATUTE IS DEFINED BY THE EXISTENCE OF A WAR, CONGRESS
LEAVES THE DETERMINATION OF WHEN A WAR IS CONCLUDED TO THE USUAL
POLITICAL AGENCIES OF THE GOVERNMENT. 

FN14  CF., E.G., THE PRESIDENT'S ADDRESS TO CONGRESS ON MARCH 17,
1948, RECOMMENDING THE ENACTMENT OF THE EUROPEAN RECOVERY PROGRAM,
UNIVERSAL MILITARY TRAINING, AND THE TEMPORARY REENACTMENT OF SELECTIVE
SERVICE LEGISLATION.  H. DOC. NO. 569, 80TH CONG., 2D SESS.  ON MAY 10,
1948, BY EXECUTIVE ORDER 9957, 13 FED. REG. 2503, THE PRESIDENT
EXERCISED HIS AUTHORITY "IN TIME OF WAR,  ...  THROUGH THE SECRETARY OF
WAR, TO TAKE POSSESSION AND ASSUME CONTROL OF ANY SYSTEM OR SYSTEMS OF
TRANSPORTATION  ...  "  (ACT OF AUGUST 29, 1916, 39 STAT. 619, 645, 10
U.S.C. SEC. 1361.) 

FN15  "RAPID CHANGES ARE TAKING PLACE IN EUROPE WHICH AFFECT OUR
FOREIGN POLICY AND OUR NATIONAL SECURITY.  ...  ALMOST 3 YEARS HAVE
ELAPSED SINCE THE END OF THE GREATEST OF ALL WARS, BUT PEACE AND
STABILITY HAVE NOT RETURNED TO THE WORLD."  H. DOC. NO. 569, SUPRA, AT
P. 1. 

FN16  WE SHOULD POINT OUT THAT IT IS CONCEDED THAT A "STATE OF WAR"
WAS "FORMALLY DECLARED" AGAINST GERMANY.  ACT OF DECEMBER 11, 1941, 55
STAT. 796. 

FN17  THE ADDITIONAL QUESTION AS TO WHETHER THE PERSON RESTRAINED IS
IN FACT AN ALIEN ENEMY FOURTEEN YEARS OF AGE OR OLDER MAY ALSO BE
REVIEWED BY THE COURTS.  SEE CASES CITED NOTE 8, SUPRA.  THIS QUESTION
IS NOT RAISED IN THIS CASE. 

FN18  THE FIFTH CONGRESS WAS ALSO RESPONSIBLE FOR "AN ACT CONCERNING
ALIENS," APPROVED JUNE 25, 1798, 1 STAT. 570, AND "AN ACT IN ADDITION
TO THE ACT, ENTITLED 'AN ACT FOR THE PUNISHMENT OF CERTAIN CRIMES
AGAINST THE UNITED STATES,'" APPROVED JULY 14, 1798, 1 STAT. 596, AS
WELL AS THE INSTANT "AN ACT RESPECTING ALIEN ENEMIES," APPROVED JULY 6,
1798.  IT IS SIGNIFICANT THAT WHILE THE FORMER STATUTES - THE ALIEN AND
SEDITION ACTS - WERE VIGOROUSLY AND CONTEMPORANEOUSLY ATTACKED AS
UNCONSTITUTIONAL, THERE WAS NEVER ANY ISSUE RAISED AS TO THE VALIDITY
OF THE ALIEN ENEMY ACT.  JAMES MADISON, IN HIS REPORT ON THE VIRGINIA
RESOLUTIONS, CAREFULLY AND CAUSTICALLY DIFFERENTIATED BETWEEN FRIENDLY
AND ENEMY ALIEN LEGISLATION, AS FOLLOWS:  "THE NEXT OBSERVATION TO BE
MADE IS, THAT MUCH CONFUSION AND FALLACY HAVE BEEN THROWN INTO THE
QUESTION BY BLENDING THE TWO CASES OF ALIENS, MEMBERS OF A HOSTILE
NATION, AND ALIENS, MEMBERS OF FRIENDLY NATIONS.  ...  WITH RESPECT TO
ALIEN ENEMIES, NO DOUBT HAS BEEN INTIMATED AS TO THE FEDERAL AUTHORITY
OVER THEM; THE CONSTITUTION HAVING EXPRESSLY DELEGATED TO CONGRESS THE
POWER TO DECLARE WAR AGAINST ANY NATION, AND, OF COURSE, TO TREAT IT
AND ALL ITS MEMBERS AS ENEMIES."  6 WRITINGS OF JAMES MADISON (HUNT,
EDITOR) 360-61.  SIMILARLY, THOMAS JEFFERSON, THE AUTHOR OF THE
KENTUCKY RESOLUTIONS OF 1798 AND 1799, WAS CAREFUL TO POINT OUT THAT
THE ALIEN ACT UNDER ATTACK WAS THE ONE "WHICH ASSUMES POWERS OVER ALIEN
FRIENDS."  8 WRITINGS OF THOMAS JEFFERSON (FORD, EDITOR) 466.  THERE
WAS NEVER ANY QUESTIONING OF THE ALIEN ENEMY ACT OF 1798 BY EITHER
JEFFERSON OR MADISON NOR DID EITHER EVER SUGGEST ITS REPEAL. 

FN19  IT IS SUGGESTED THAT CONGRESS OUGHT TO DO SOMETHING ABOUT
CORRECTING TODAY'S DECISION.  BUT THE PRESENT CONGRESS HAS APPARENTLY
ANTICIPATED THE DECISION.  IT HAS RECOGNIZED THAT THE PRESIDENT'S
POWERS UNDER THE ALIEN ENEMY ACT OF 1798 WERE NOT TERMINATED BY THE
CESSATION OF ACTUAL HOSTILITIES BY APPROPRIATING FUNDS "  ...  FOR ALL
NECESSARY EXPENSES, INCIDENT TO THE MAINTENANCE, CARE, DETENTION,
SURVEILLANCE, PAROLE, AND TRANSPORTATION OF ALIEN ENEMIES AND THEIR
WIVES AND DEPENDENT CHILDREN, INCLUDING TRANSPORTATION AND OTHER
EXPENSES IN THE RETURN OF SUCH PERSONS TO PLACE OF BONA FIDE RESIDENCE
OR TO SUCH OTHER PLACE AS MAY BE AUTHORIZED BY THE ATTORNEY GENERAL
...  "  61 STAT. 279, 292.  "AND THE APPROPRIATION BY CONGRESS OF FUNDS
FOR THE USE OF SUCH AGENCIES STANDS AS CONFIRMATION AND RATIFICATION OF
THE ACTION OF THE CHIEF EXECUTIVE.  BROOKS V. DEWAR, 313 U.S. 354,
361."  FLEMING V. MOHAWK WRECKING & LUMBER CO., 331 U.S. 111, 116; SEE
ALSO ISBRANDTSEN-MOLLER CO. V. UNITED STATES, 300 U.S. 139. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY
AND MR. JUSTICE RUTLEDGE JOIN, DISSENTING. 

THE PETITION FOR HABEAS CORPUS IN THIS CASE ALLEGED THAT PETITIONER,
A LEGALLY ADMITTED RESIDENT OF THE UNITED STATES, WAS ABOUT TO BE
DEPORTED FROM THIS COUNTRY TO GERMANY AS A "DANGEROUS" ALIEN ENEMY,
WITHOUT HAVING BEEN AFFORDED NOTICE AND A FAIR HEARING TO DETERMINE
WHETHER HE WAS "DANGEROUS."  THE COURT NOW HOLDS, AS THE GOVERNMENT
ARGUED, THAT BECAUSE OF A PRESIDENTIAL PROCLAMATION, PETITIONER CAN BE
DEPORTED BY THE ATTORNEY GENERAL'S ORDER WITHOUT ANY JUDICIAL INQUIRY
WHATEVER INTO THE TRUTH OF HIS ALLEGATIONS.  FN1  THE COURT GOES
FURTHER AND HOLDS, AS I UNDERSTAND ITS OPINION, THAT THE ATTORNEY
GENERAL CAN DEPORT HIM WHETHER HE IS DANGEROUS OR NOT.  THE EFFECT OF
THIS HOLDING IS THAT ANY UNNATURALIZED PERSON, GOOD OR BAD, LOYAL OR
DISLOYAL TO THIS COUNTRY, IF HE WAS A CITIZEN OF GERMANY BEFORE COMING
HERE, CAN BE SUMMARILY SEIZED, INTERNED AND DEPORTED FROM THE UNITED
STATES BY THE ATTORNEY GENERAL, AND THAT NO COURT OF THE UNITED STATES
HAS ANY POWER WHATEVER TO REVIEW, MODIFY, VACATE, REVERSE, OR IN ANY
MANNER AFFECT THE ATTORNEY GENERAL'S DEPORTATION ORDER.  MR. JUSTICE
DOUGLAS HAS GIVEN REASONS IN HIS DISSENTING OPINION WHY HE BELIEVES
THAT DEPORTATION OF ALIENS, WITHOUT NOTICE AND HEARING, WHETHER IN
PEACE OR WAR, WOULD BE A DENIAL OF DUE PROCESS OF LAW.  I AGREE WITH
MR. JUSTICE DOUGLAS FOR MANY OF THE REASONS HE GIVES THAT DEPORTATION
OF PETITIONER WITHOUT A FAIR HEARING AS DETERMINED BY JUDICIAL REVIEW
IS A DENIAL OF DUE PROCESS OF LAW.  FN2  BUT I DO NOT REACH THE
QUESTION OF POWER TO DEPORT ALIENS OF COUNTRIES WITH WHICH WE ARE AT
WAR WHILE WE ARE AT WAR, BECAUSE I THINK THE IDEA THAT WE ARE STILL AT
WAR WITH GERMANY IN THE SENSE CONTEMPLATED BY THE STATUTE CONTROLLING
HERE IS A PURE FICTION.  FURTHERMORE, I THINK THERE IS NO ACT OF
CONGRESS WHICH LENDS THE SLIGHTEST BASIS TO THE CLAIM THAT AFTER
HOSTILITIES WITH A FOREIGN COUNTRY HAVE ENDED THE PRESIDENT OR THE
ATTORNEY GENERAL, ONE OR BOTH, CAN DEPORT ALIENS WITHOUT A FAIR HEARING
REVIEWABLE IN THE COURTS.  ON THE CONTRARY, WHEN THIS VERY QUESTION
CAME BEFORE CONGRESS AFTER WORLD WAR I IN THE INTERVAL BETWEEN THE
ARMISTICE AND THE CONCLUSION OF FORMAL PEACE WITH GERMANY, CONGRESS
UNEQUIVOCALLY REQUIRED THAT ENEMY ALIENS BE GIVEN A FAIR HEARING BEFORE
THEY COULD BE DEPORTED. 

THE COURT RELIES ON THE ALIEN ENEMY ACT OF 1798.  1 STAT. 577, 50
U.S.C. SEC. 21-24.  THAT ACT DID GRANT EXTRAORDINARILY BROAD POWERS TO
THE PRESIDENT TO RESTRAIN AND "TO PROVIDE FOR THE REMOVAL" OF ALIENS
WHO OWE ALLEGIANCE TO A FOREIGN GOVERNMENT, BUT SUCH ACTION IS
AUTHORIZED ONLY "WHENEVER THERE IS A DECLARED WAR BETWEEN THE UNITED
STATES" AND SUCH FOREIGN GOVERNMENT, OR IN THE EVENT THAT FOREIGN
GOVERNMENT ATTEMPTS OR THREATENS THE UNITED STATES WITH "ANY INVASION
OR PREDATORY INCURSION."  THE POWERS GIVEN TO THE PRESIDENT BY THIS
STATUTE, I MAY ASSUME FOR MY PURPOSES, ARE SUFFICIENTLY BROAD TO HAVE
AUTHORIZED THE PRESIDENT ACTING THROUGH THE ATTORNEY GENERAL TO DEPORT
ALIEN GERMANS FROM THIS COUNTRY WHILE THE "DECLARED" SECOND WORLD WAR
WAS ACTUALLY GOING ON, OR WHILE THERE WAS REAL DANGER OF INVASION FROM
GERMANY.  BUT THIS 1798 STATUTE, UNLIKE STATUTES PASSED IN LATER YEARS,
DID NOT EXPRESSLY PRESCRIBE THE EVENTS WHICH WOULD FOR STATUTORY
PURPOSES MARK THE TERMINATION OF THE "DECLARED" WAR OR THREATENED
INVASIONS.  SEE HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146,
165, N. 1.  IN SUCH CASES WE ARE CALLED ON TO INTERPRET A STATUTE AS
BEST WE CAN SO AS TO CARRY OUT THE PURPOSE OF CONGRESS IN CONNECTION
WITH THE PARTICULAR RIGHT THE STATUTE WAS INTENDED TO PROTECT, UNITED
STATES V. ANDERSON, 9 WALL.  56, 69-70; THE PROTECTOR, 12 WALL.  700,
702, OR THE PARTICULAR EVIL THE STATUTE WAS INTENDED TO GUARD AGAINST. 
MCELRATH V. UNITED STATES, 102 U.S. 426, 437, 438.  SEE JUDICIAL
DETERMINATION OF THE END OF THE WAR, 47 COL. L. REV. 255. 

THE 1798 ACT WAS PASSED AT A TIME WHEN THERE WAS WIDESPREAD HOSTILITY
TO FRANCE ON THE PART OF CERTAIN GROUPS IN THE UNITED STATES.  IT WAS
ASSERTED BY MANY THAT FRANCE HAD INFILTRATED THIS COUNTRY WITH SPIES
PREACHING "SUBVERSIVE" IDEAS AND ACTIVITIES.  MR. OTIS, THE CHIEF
CONGRESSIONAL SPOKESMAN FOR THE MEASURE, EXPRESSED HIS FEARS OF "  ...
A BAND OF SPIES  ...  SPREAD THROUGH THE COUNTRY, FROM ONE END OF IT TO
THE OTHER, WHO, IN CASE OF THE INTRODUCTION OF AN ENEMY INTO OUR
COUNTRY" MIGHT JOIN THE ENEMY "IN THEIR ATTACK UPON US, AND IN THEIR
PLUNDER OF OUR PROPERTY  ... "  ANNALS OF CONGRESS, 5TH CONG., 2D SESS.
1791.  CONGRESSIONAL DISCUSSIONS OF THIS PARTICULAR MEASURE APPEAR AT
PP. 1573-1582, 1785-1796, AND 2034-2035, ANNALS OF CONGRESS, 5TH CONG.,
2D SESS.,  FN3  AND SHOW BEYOND ANY REASONABLE DOUBT THAT THE ALIEN
ENEMY ACT OF 1798 WAS INTENDED TO GRANT ITS EXTRAORDINARY POWERS ONLY
TO PREVENT ALIEN ENEMIES RESIDING IN THE UNITED STATES FROM EXTENDING
AID AND COMFORT TO AN ENEMY COUNTRY WHILE DANGERS FROM ACTUAL FIGHTING
HOSTILITIES WERE IMMINENTLY THREATENED.  INDEED, MR. OTIS, WHO WAS MOST
PERSISTENT IN HIS EXPRESSIONS OF ANTI-FRENCH SENTIMENTS AND IN HIS
AGGRESSIVE SPONSORSHIP OF THIS AND ITS COMPANION ALIEN AND SEDITION
ACTS, IS RECORDED AS SAYING "  ...  THAT IN A TIME OF TRANQUILITY, HE
SHOULD NOT DESIRE TO PUT A POWER LIKE THIS INTO THE HANDS OF THE
EXECUTIVE; BUT, IN A TIME OF WAR, THE CITIZENS OF FRANCE OUGHT TO BE
CONSIDERED AND TREATED AND WATCHED IN A VERY DIFFERENT MANNER FROM
CITIZENS OF OUR OWN COUNTRY."  ANNALS OF CONGRESS, 5TH CONG., 2D SESS.
1791.  AND JUST BEFORE THE BILL WAS ORDERED TO BE READ FOR ITS THIRD
TIME, MR. GALLATIN POINTED OUT THAT THE ALIEN ACT HAD ALREADY MADE IT
POSSIBLE FOR THE PRESIDENT TO REMOVE ALL ALIENS, WHETHER FRIENDS OR
ENEMIES; HE INTERPRETED THE MEASURE HERE UNDER CONSIDERATION, AIMED
ONLY AT ALIEN ENEMIES, AS PROVIDING "IN WHAT MANNER THEY MAY BE LAID
UNDER CERTAIN RESTRAINTS BY WAY OF SECURITY."  FOR THIS REASON HE
SUPPORTED THIS BILL.  ANNALS OF CONGRESS, 5TH CONG., 2D SESS. 2035. 

GERMAN ALIENS COULD NOT NOW, IF THEY WOULD, AID THE GERMAN GOVERNMENT
IN WAR HOSTILITIES AGAINST THE UNITED STATES.  FOR AS DECLARED BY THE
UNITED STATES DEPARTMENT OF STATE, JUNE 5, 1945, THE GERMAN ARMED
FORCES ON LAND AND SEA HAD BEEN COMPLETELY SUBJUGATED AND HAD
UNCONDITIONALLY SURRENDERED.  "THERE IS NO CENTRAL GOVERNMENT OR
AUTHORITY IN GERMANY CAPABLE OF ACCEPTING RESPONSIBILITY FOR THE
MAINTENANCE OF ORDER, THE ADMINISTRATION OF THE COUNTRY AND COMPLIANCE
WITH THE REQUIREMENTS OF THE VICTORIOUS POWERS."  AND THE STATE
DEPARTMENT WENT ON TO DECLARE THAT THE UNITED STATES, RUSSIA, GREAT
BRITAIN, AND FRANCE HAD ASSUMED "SUPREME AUTHORITY WITH RESPECT TO
GERMANY, INCLUDING ALL THE POWERS POSSESSED BY THE GERMAN GOVERNMENT,
THE HIGH COMMAND, AND ANY STATE, MUNICIPAL, OR LOCAL GOVERNMENT OR
AUTHORITY."  12 STATE DEPT. BULL.  1051.  AND ON MARCH 17, 1948, THE
PRESIDENT OF THE UNITED STATES TOLD THE CONGRESS THAT "ALMOST 3 YEARS
HAVE ELAPSED SINCE THE END  ...  " OF THE WAR WITH GERMANY.  SEE COURT
OPINION, N. 15. 

OF COURSE IT IS NOTHING BUT A FICTION TO SAY THAT WE ARE NOW AT WAR
WITH GERMANY.  FN4  WHATEVER ELSE THAT FICTION MIGHT SUPPORT, I REFUSE
TO AGREE THAT IT AFFORDS A BASIS FOR TODAY'S HOLDING THAT OUR LAWS
AUTHORIZE THE PEACETIME BANISHMENT OF ANY PERSON ON THE JUDICIALLY
UNREVIEWABLE CONCLUSION OF A SINGLE INDIVIDUAL.  THE 1798 ACT DID NOT
GRANT ITS EXTRAORDINARY AND DANGEROUS POWERS TO BE USED DURING THE
PERIOD OF FICTIONAL WARS.  AS PREVIOUSLY POINTED OUT, EVEN MR. OTIS,
WITH ALL OF HIS FERVENT SUPPORT OF ANTI-FRENCH LEGISLATION, REPUDIATED
THE SUGGESTION THAT THE ACT WOULD VEST THE PRESIDENT WITH SUCH
DANGEROUS POWERS IN PEACETIME.  CONSEQUENTLY, THE COURT TODAY GIVES THE
1798 ACT A FAR BROADER MEANING THAN IT WAS GIVEN BY ONE OF THE MOST
VOCIFEROUS CHAMPIONS OF THE 1798 SERIES OF ANTI-ALIEN AND ANTI-SEDITION
LAWS. 

FURTHERMORE, THE HOLDING TODAY REPRESENTS AN ENTIRELY NEW
INTERPRETATION OF THE 1798 ACT.  FOR NEARLY 150 YEARS AFTER THE 1798
ACT THERE NEVER CAME TO THIS COURT ANY CASE IN WHICH THE GOVERNMENT
ASKED THAT THE ACT BE INTERPRETED SO AS TO ALLOW THE PRESIDENT OR ANY
OTHER PERSON TO DEPORT ALIEN ENEMIES WITHOUT ALLOWING THEM ACCESS TO
THE COURTS.  IN FACT, LESS THAN TWO MONTHS AFTER THE END OF THE ACTUAL
FIGHTING IN THE FIRST WORLD WAR, ATTORNEY GENERAL GREGORY INFORMED THE
CONGRESS THAT, ALTHOUGH THERE WAS POWER TO CONTINUE THE INTERNMENT OF
ALIEN ENEMIES AFTER THE CESSATION OF ACTUAL HOSTILITIES AND UNTIL THE
RATIFICATION OF A PEACE TREATY, STILL THERE WAS NO STATUTE UNDER WHICH
THEY COULD THEN BE DEPORTED.  FN5  FOR THIS REASON THE ATTORNEY GENERAL
REQUESTED CONGRESS TO ENACT NEW LEGISLATION TO AUTHORIZE DEPORTATION OF
ENEMY ALIENS AT THAT TIME.  THE BILL THEREAFTER INTRODUCED WAS ENDORSED
BY BOTH THE ATTORNEY GENERAL AND THE SECRETARY OF LABOR IN A JOINT
LETTER IN WHICH THEY ASKED THAT IT BE GIVEN "IMMEDIATE CONSIDERATION"
IN VIEW OF THE "GRAVITY OF THIS SITUATION."  HEARINGS BEFORE THE HOUSE
COMMITTEE ON IMMIGRATION AND NATURALIZATION ON H.R. 6750, 66TH CONG.,
1ST SESS. 42-43.  SEVERAL MONTHS LATER ATTORNEY GENERAL PALMER
SUBMITTED SUBSTANTIALLY THE SAME STATEMENTS TO THE HOUSE AND SENATE
COMMITTEES ON IMMIGRATION.  H.R. REP. 143, 66TH CONG., 1ST SESS. 2; S.
REP. 283, 66TH CONG., 1ST SESS. 2.  SEE ALSO REPORT OF THE ATTORNEY
GENERAL, 1919, 25-28. 

A BILL TO CARRY OUT THE RECOMMENDATIONS OF THE WILSON ADMINISTRATION
WAS LATER PASSED, 41 STAT. 593(1920), BUT NOT UNTIL IT HAD BEEN AMENDED
ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES TO REQUIRE THAT ALL ALIEN
ENEMIES BE GIVEN A FAIR HEARING BEFORE THEIR DEPORTATION.  58 CONG.
REC. 3366.  THAT A FAIR HEARING WAS THE COMMAND OF CONGRESS IS NOT ONLY
SHOWN BY THE LANGUAGE OF THE ACT BUT BY THE TEXT OF THE CONGRESSIONAL
HEARINGS, BY THE COMMITTEE REPORTS AND BY CONGRESSIONAL DEBATES ON THE
BILL.  IN FACT, THE HOUSE WAS ASSURED BY THE RANKING MEMBER OF THE
COMMITTEE REPORTING THE BILL THAT IN HEARINGS TO DEPORT ALIEN ENEMIES
UNDER THE BILL "A MAN IS ENTITLED TO HAVE COUNSEL PRESENT, ENTITLED TO
SUBPOENA WITNESSES AND SUMMON THEM BEFORE HIM AND HAVE A FULL HEARING,
AT WHICH THE STENOGRAPHER'S MINUTES MUST BE TAKEN."  58 CONG. REC.
3373.  SEE ALSO 3367 AND 3372.  CONGRESS THEREFORE AFTER THE FIGHTING
WAR WAS OVER AUTHORIZED THE DEPORTATION OF INTERNED ALIEN ENEMIES ONLY
IF THEY WERE "GIVEN FULL HEARING, AS IN ALL CASES OF DEPORTATION UNDER
EXISTING LAWS."  H.R. REP. NO. 143, 66TH CONG., 1ST SESS. 2. 

THIS PETITIONER IS IN PRECISELY THE SAME STATUS AS WERE THE INTERNED
ALIEN ENEMIES OF THE FIRST WORLD WAR FOR WHOM CONGRESS SPECIFICALLY
REQUIRED A FAIR HEARING WITH COURT REVIEW AS A PREREQUISITE TO THEIR
DEPORTATION.  YET THE COURT TODAY SANCTIONS A PROCEDURE WHEREBY
PETITIONER IS TO BE DEPORTED WITHOUT ANY DETERMINATION OF HIS CHARGE
THAT HE HAS BEEN DENIED A FAIR HEARING.  THE COURT CAN REACH SUCH A
RESULT ONLY BY REJECTING THE INTERPRETATION OF THE 1798 ACT GIVEN BY
TWO ATTORNEY GENERALS, UPON WHICH CONGRESS ACTED IN 1920.  IT IS HELD
THAT CONGRESS AND THE TWO ATTORNEY GENERALS OF THE WILSON
ADMINISTRATION WERE WRONG IN BELIEVING THAT THE 1798 ACT DID NOT
AUTHORIZE DEPORTATION OF INTERNED ENEMY ALIENS AFTER HOSTILITIES AND
BEFORE A PEACE TREATY.  AND IN MAKING ITS NOVEL INTERPRETATION OF THE
1798 ACT THE COURT TODAY DENIES THIS PETITIONER AND OTHERS THE KIND OF
FAIR HEARING THAT DUE PROCESS OF LAW WAS INTENDED TO GUARANTEE.  SEE
THE JAPANESE IMMIGRANT CASE, 189 U.S. 86, 100-101, READ AND EXPLAINED
ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES AT 58 CONG. REC. 3373,
READ INTO THE HOUSE COMMITTEE HEARINGS, SUPRA AT 19-20, AND QUOTED IN
PART IN NOTE 2 OF MR. JUSTICE DOUGLAS' DISSENTING OPINION. 

THE COURT'S OPINION SEEMS TO FEAR THAT GERMANS IF NOW LEFT IN THE
UNITED STATES MIGHT SOMEHOW HAVE A "POTENCY FOR MISCHIEF" EVEN AFTER
THE COMPLETE SUBJUGATION AND SURRENDER OF GERMANY, AT LEAST SO LONG AS
THE "PEACE OF PEACE HAS NOT COME."  THIS "POTENCY FOR MISCHIEF" CAN OF
COURSE HAVE NO POSSIBLE RELATION TO APPREHENSION OF ANY INVASION BY OR
WAR WITH GERMANY.  THE APPREHENSION MUST THEREFORE BE BASED ON FEAR
THAT GERMANS NOW RESIDING IN THE UNITED STATES MIGHT EMIT IDEAS
DANGEROUS TO THE "PEACE OF PEACE."  BUT THE FIRST AMENDMENT REPRESENTS
THIS NATION'S BELIEF THAT THE SPREAD OF POLITICAL IDEAS MUST NOT BE
SUPPRESSED.  AND THE AVOWED PURPOSE OF THE ALIEN ENEMY ACT WAS NOT TO
STIFLE THE SPREAD OF IDEAS AFTER HOSTILITIES HAD ENDED.  FN6  OTHERS IN
THE SERIES OF ALIEN AND SEDITION ACTS DID PROVIDE FOR PRISON PUNISHMENT
OF PEOPLE WHO HAD OR AT LEAST WHO DARED TO EXPRESS POLITICAL IDEAS. 
FN7  I CANNOT NOW AGREE TO AN INTERPRETATION OF THE ALIEN ENEMY ACT
WHICH GIVES A NEW LIFE TO THE LONG REPUDIATED ANTI-FREE SPEECH AND ANTI
FREE PRESS PHILOSOPHY OF THE 1798 ALIEN AND SEDITION ACTS.  I WOULD NOT
DISINTER THAT PHILOSOPHY WHICH THE PEOPLE HAVE LONG HOPED THOMAS
JEFFERSON HAD PERMANENTLY BURIED WHEN HE PARDONED THE LAST PERSON
CONVICTED FOR VIOLATION OF THE ALIEN AND SEDITION ACTS.    FINALLY, I
WISH TO CALL ATTENTION TO WHAT WAS SAID BY CIRCUIT JUDGE AUGUSTUS HAND
IN THIS CASE SPEAKING FOR HIMSELF AND CIRCUIT JUDGES LEARNED HAND AND
SWAN, BEFORE WHOM PETITIONER ARGUED HIS OWN CAUSE.  BELIEVING THE
DEPORTATION ORDER BEFORE THEM WAS NOT SUBJECT TO JUDICIAL REVIEW, THEY
SAW NO REASON FOR DISCUSSING THE "  ...  NATURE OR WEIGHT OF THE
EVIDENCE BEFORE THE REPATRIATION HEARING BOARD, OR THE FINDING OF THE
ATTORNEY GENERAL  ...  "  BUT THEY ADDED:  "HOWEVER, ON THE FACE OF THE
RECORD IT IS HARD TO SEE WHY THE RELATOR SHOULD NOW BE COMPELLED TO GO
BACK.  OF COURSE THERE MAY BE MUCH NOT DISCLOSED TO JUSTIFY THE STEP;
AND IT IS OF DOUBTFUL PROPRIETY FOR A COURT EVER TO EXPRESS AN OPINION
ON A SUBJECT OVER WHICH IT HAS NO POWER.  THEREFORE, WE SHALL, AND
SHOULD, SAY NO MORE THAN TO SUGGEST THAT JUSTICE MAY PERHAPS BE BETTER
SATISFIED IF A RECONSIDERATION BE GIVEN HIM IN THE LIGHT OF THE CHANGED
CONDITIONS, SINCE THE ORDER OF REMOVAL WAS MADE EIGHTEEN MONTHS AGO." 
163 F.2D AT 144. 

IT IS NOT AMISS, I THINK, TO SUGGEST MY BELIEF THAT BECAUSE OF
TODAY'S OPINION INDIVIDUAL LIBERTY WILL BE LESS SECURE TOMORROW THAN IT
WAS YESTERDAY.  CERTAINLY THE SECURITY OF ALIENS IS LESSENED,
PARTICULARLY IF THEIR IDEAS HAPPEN TO BE OUT OF HARMONY WITH THOSE OF
THE GOVERNMENTAL AUTHORITIES OF A PERIOD.  AND THERE IS REMOVED A
SEGMENT OF JUDICIAL POWER TO PROTECT INDIVIDUAL LIBERTY FROM ARBITRARY
ACTION, AT LEAST UNTIL TODAY'S JUDGMENT IS CORRECTED BY CONGRESS  FN8
OR BY THIS COURT. 

FN1  THE COURT SPECIFICALLY HOLDS THAT THIS PETITIONER IS NOT
ENTITLED TO HAVE THIS COURT OR ANY OTHER COURT DETERMINE WHETHER
PETITIONER HAS HAD A FAIR HEARING.  THE MERITS OF THE ATTORNEY
GENERAL'S ACTION ARE THEREFORE NOT SUBJECT TO CHALLENGE BY THE
PETITIONER.  NEVERTHELESS THE COURT IN NOTE 3 QUOTES OUT OF CONTEXT A
SHORT PARAGRAPH FROM A WRITTEN PROTEST MADE BY PETITIONER AGAINST THE
ATTORNEY GENERAL'S PROCEDURE.  THE ONLY POSSIBLE PURPOSE OF THIS
QUOTATION IS TO INDICATE THAT, ANYHOW, THE PETITIONER OUGHT TO BE
DEPORTED BECAUSE OF HIS VIEWS STATED IN THIS PARAGRAPH OF HIS PROTEST
AGAINST THE ATTORNEY GENERAL'S PROCEDURE.  THIS IS A STRANGE KIND OF
DUE PROCESS.  THE PROTEST POINTED OUT THAT HITLER HAD KEPT PETITIONER
IN A CONCENTRATION CAMP FOR EIGHT MONTHS FOR DISLOYALTY TO THE NAZIS
AND THAT THIS GOVERNMENT HAD THEN KEPT HIM IMPRISONED FOR FOUR YEARS ON
THE CHARGE THAT HE WAS A NAZI.  IMMEDIATELY BEFORE THE PARAGRAPH CITED
IN THE COURT'S OPINION, PETITIONER'S PROTEST CONTAINED THE FOLLOWING
STATEMENT: 

"FAR BE IT FROM ME, HOWEVER, TO THRUST MY GOODWILL UPON ANYBODY AND
INSIST TO STAY ON A COMMUNITY WHOSE PUBLIC SERVANTS OF ILL WILL SEEK TO
REMOVE ME BY PITIFUL PROCEDURES AND ILLEGAL MEANS.  THEREFORE, I
PROPOSE THAT I LEAVE VOLUNTARILY AS A FREE MAN, NOT AS A DANGEROUS
ALIEN DEPORTEE, AT THE EARLIEST OPPORTUNITY PROVIDED I SHALL BE ALLOWED
SIXTY DAYS TO SETTLE MY AFFAIRS BEFORE SAILING DATE."  IS IT DUE
JUDICIAL PROCESS TO REFUSE TO REVIEW THE WHOLE RECORD TO DETERMINE
WHETHER THERE WAS A FAIR HEARING AND YET ATTEMPT TO BOLSTER THE
ATTORNEY GENERAL'S DEPORTATION ORDER BY REFERENCE TO TWO SENTENCES IN A
LONG RECORD? 

FN2  COMPARE EX PARTE ENDO, 323 U.S. 283; KOREMATSU V. UNITED STATES,
323 U.S. 214. 

FN3  IN ADDITION TO THE ABOVE DISCUSSIONS OF THE ALIEN ENEMY ACT,
FREQUENT REFERENCES TO THE ACT WERE MADE IN THE CONGRESSIONAL DEBATES
ON THE ALIEN ACT, 1 STAT. 570, AND THE SEDITION ACT, 1 STAT. 596, BOTH
OF WHICH WERE PASSED WITHIN TWO WEEKS OF THE ADOPTION OF THE ALIEN
ENEMY ACT.  THESE REFERENCES APPEAR IN MANY PLACES IN THE ANNALS OF
CONGRESS, 5TH CONG., 2D SESS.  SEE E.G., 1973-2028. 

FN4  THE COURT CITES WOODS V. MILLER CO., 333 U.S. 138, AS HAVING
HELD THAT THE WAR WITH GERMANY HAS NOT YET TERMINATED.  I FIND NO SUCH
HOLDING IN THE OPINION AND NO LANGUAGE THAT EVEN SUGGESTS SUCH A
HOLDING.  WE THERE DEALT WITH THE CONSTITUTIONAL WAR POWERS OF
CONGRESS, WHETHER ALL THOSE POWERS ARE NECESSARILY NON-EXISTENT WHEN
THERE ARE NO ACTUAL HOSTILITIES.  DECISION OF THAT QUESTION HAS HARDLY
EVEN A REMOTE RELEVANCY TO THE MEANING OF THE 1798 ALIEN ENEMY ACT. 
THE COURT TODAY ALSO SEEKS TO SUPPORT ITS JUDGMENT BY A QUOTATION FROM
A CONCURRING OPINION IN THE WOODS CASE, SUPRA.  BUT THE CONCURRING
OPINION CITED WAS THAT OF A SINGLE MEMBER OF THE COURT. 

FN5  IN A LETTER ADDRESSED TO THE CHAIRMAN OF THE HOUSE COMMITTEE ON
IMMIGRATION AND NATURALIZATION DATED JANUARY 9, 1919, ATTORNEY GENERAL
GREGORY EXPLAINED THAT A NUMBER OF GERMAN SUBJECTS WHO HAD "BEEN
INTERNED PURSUANT TO SECTION 4067 OF THE REVISED STATUTES" (SECTION 1
OF THE ALIEN ENEMY ACT OF 1798) WERE STILL HELD IN CUSTODY.  HE THEN
STATED: 

"THE AUTHORITY GIVEN BY THE PRESIDENT TO REGULATE THE CONDUCT OF
ENEMY ALIENS DURING THE EXISTENCE OF THE WAR, IN MY OPINION, COULD NOT
PROPERLY BE USED AT THIS TIME TO BRING ABOUT THE DEPORTATION OF THESE
ALIENS.  THERE IS NOW, THEREFORE, NO LAW UNDER WHICH THESE PERSONS CAN
BE EXPELLED FROM THE COUNTRY NOR, IF ONCE OUT OF IT, PREVENTED FROM
RETURNING TO THIS COUNTRY.  I HAVE, THEREFORE, CAUSED TO BE PREPARED
THE INCLOSED DRAFT OF A PROPOSED BILL, THE PROVISIONS OF WHICH ARE SELF
EXPLANATORY."  H.R. REP. NO. 1000, 65TH CONG., 3D SESS. 1-2.  THIS
POSITION OF THE ATTORNEY GENERAL THAT THERE THEN WAS NO POWER UNDER
EXISTING LAW TO DEPORT ENEMY ALIENS WAS REITERATED BY REPRESENTATIVES
OF THE ATTORNEY GENERAL IN HEARINGS BEFORE THE HOUSE COMMITTEE ON
IMMIGRATION AND NATURALIZATION ON THE BILL ENACTED INTO LAW.  HEARINGS
ON H.R. 6750, 66TH CONG., 1ST SESS. 3-21.  IN CONFORMITY WITH THIS
INTERPRETATION OF THE 1798 ALIEN ENEMY ACT THE WILSON ADMINISTRATION
DID NOT ATTEMPT TO DEPORT INTERNED ALIEN ENEMIES UNDER THE 1798 ACT
AFTER THE ARMISTICE AND BEFORE CONGRESS BY STATUTE EXPRESSLY AUTHORIZED
SUCH DEPORTATIONS AS REQUESTED BY THE TWO ATTORNEY GENERALS.  REPORT OF
THE ATTORNEY GENERAL 1919, 25-28. 

FN6  AS A JUSTIFICATION FOR ITS INTERPRETATION OF THE 1798 ACT THE
COURT APPEARS TO ADOPT THE REASONS ADVANCED BY THE SECOND CIRCUIT COURT
OF APPEALS IN UNITED STATES EX REL. KESSLER V. WATKINS, 163 F.2D 140,
DECIDED IN 1947.  THAT COURT EMPHASIZED THE DIFFICULTY OF DEPORTATION
OF ALIEN ENEMIES DURING THE TIME OF ACTUAL HOSTILITY "BECAUSE OF THE
DANGER TO THE ALIENS THEMSELVES OR THE INTERFERENCE WITH THE EFFECTIVE
CONDUCT OF MILITARY OPERATIONS."  THIS REASONING WOULD OF COURSE BE
PERSUASIVE IF THE OBJECT OF THE 1798 STATUTE HAD BEEN PUNISHMENT OF THE
ALIEN ENEMIES, BUT THE WHOLE LEGISLATIVE HISTORY SHOWS THAT SUCH WAS
NOT THE PURPOSE OF THE ACT.  HENCE THE ACT CANNOT BE CONSTRUED TO
AUTHORIZE THE DEPORTATION OF AN ENEMY ALIEN AFTER THE WAR IS OVER AS
PUNISHMENT.  FURTHERMORE, THE PURPOSE OF DEPORTATION, SO FAR AS IT WAS
AUTHORIZED (IF AUTHORIZED) UNDER THE 1798 ACT, WAS NOT TO PROTECT THE
UNITED STATES FROM IDEAS OF ALIENS AFTER A WAR OR THREATENED INVASION
BUT TO PROTECT THE UNITED STATES AGAINST SABOTAGE, ETC., DURING A WAR
OR THREATENED INVASION.  NEVERTHELESS, THE CIRCUIT COURT OF APPEALS
THOUGHT THAT WITHOUT ITS INTERPRETATION "THE EXECUTIVE WOULD BE
POWERLESS TO CARRY OUT INTERNMENT OR DEPORTATION WHICH WAS NOT
EXERCISED DURING ACTIVE WAR AND MIGHT BE OBLIGED TO LEAVE THE COUNTRY
UNPROTECTED FROM ALIENS DANGEROUS EITHER BECAUSE OF SECRETS WHICH THEY
POSSESSED OR BECAUSE OF POTENTIAL INIMICAL ACTIVITIES."  BUT AFTER A
WAR IS OVER THE ONLY "INIMICAL ACTIVITIES" WOULD RELATE TO PEACETIME
GOVERNMENTAL MATTERS - NOT THE TYPE OF CONDUCT WHICH CONCERNED THOSE
WHO PASSED THE ALIEN ENEMY ACT.  MOREOVER, IT IS DIFFICULT TO SEE WHY
IT WOULD ENDANGER THIS COUNTRY TO KEEP ALIENS HERE "BECAUSE OF SECRETS
WHICH THEY POSSESS."  AND OF COURSE THE EXECUTIVE IS NOT POWERLESS TO
SEND DANGEROUS ALIENS OUT OF THIS COUNTRY, EVEN IF THE 1798 ACT DOES
NOT AUTHORIZE THEIR DEPORTATION, FOR THERE ARE OTHER STATUTES WHICH
GIVE BROAD POWERS TO DEPORT ALIENS.  THERE IS THIS DISADVANTAGE TO THE
GOVERNMENT, HOWEVER, IN CONNECTION WITH THE OTHER DEPORTATION STATUTES
THEY REQUIRE A HEARING AND THE EXECUTIVE WOULD NOT HAVE ARBITRARY
POWER TO SEND THEM AWAY WITH OR WITHOUT REASONS. 

FN7  SEE BOWERS, JEFFERSON AND HAMILTON, 1925, C. XVI, "HYSTERICS,"
AND C. XVII, "THE REIGN OF TERROR"; 1 MORISON, LIFE OF OTIS, C. VIII,
"A SYSTEM OF TERROR." 

FN8  IT IS SUGGESTED IN THE COURT'S OPINION THAT CONGRESS BY
APPROPRIATING FUNDS IN 1947 TO "RETURN" ALIEN ENEMIES TO THEIR "BONA
FIDE RESIDENCE OR TO SUCH OTHER PLACE AS MAY BE AUTHORIZED BY THE
ATTORNEY GENERAL" HAS ALREADY APPROVED THE ATTORNEY GENERAL'S
INTERPRETATION OF THE 1798 ACT AS AUTHORIZING THE PRESENT DEPORTATION
OF ALIEN ENEMIES WITHOUT AFFORDING THEM A FAIR HEARING.  BUT NO SUCH
STRAINED INFERENCE CAN BE DRAWN.  CONGRESS DID NOT THERE OR ELSEWHERE
EXPRESS A PURPOSE TO DENY THESE ALIENS A FAIR HEARING AFTER THE WAR WAS
OVER.  UNTIL IT DOES SO, I AM UNWILLING TO ATTRIBUTE TO THE CONGRESS
ANY SUCH ATTEMPTED VIOLATION OF THE CONSTITUTIONAL REQUIREMENT FOR DUE
PROCESS OF LAW. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MURPHY AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING. 

I DO NOT AGREE THAT THE SOLE QUESTION OPEN ON HABEAS CORPUS IS
WHETHER THE PETITIONER IS IN FACT AN ALIEN ENEMY.  FN1  THAT
DELIMITATION OF THE HISTORIC WRIT IS A WHOLLY ARBITRARY ONE.  I SEE NO
REASON FOR A MORE NARROW RANGE OF JUDICIAL INQUIRY HERE THAN IN HABEAS
CORPUS ARISING OUT OF ANY OTHER DEPORTATION PROCEEDING. 

IT IS UNDISPUTED THAT IN PEACETIME AN ALIEN IS PROTECTED BY THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  WONG WING V. UNITED STATES, 163
U.S. 228.  FEDERAL COURTS WILL THEN DETERMINE THROUGH HABEAS CORPUS
WHETHER OR NOT A DEPORTATION ORDER IS BASED UPON PROCEDURES AFFORDING
DUE PROCESS OF LAW.  VAJTAUER V. COMMISSIONER, 273 U.S. 103, 106.  IN
DEPORTATION PROCEEDINGS DUE PROCESS REQUIRES REASONABLE NOTICE (TISI V.
TOD, 264 U.S. 131, 134), A FAIR HEARING (BRIDGES V. WIXON, 326 U.S.
135, 156; CHIN YOW V. UNITED STATES, 208 U.S. 8, 12; LOW WAH SUEY V.
BACKUS, 225 U.S. 460), AND AN ORDER SUPPORTED BY SOME EVIDENCE
(VAJTAUER V. COMMISSIONER, SUPRA, P. 106; ZAKONAITE V. WOLF, 226 U.S.
272, 274).  AND SEE KWOCK JAN FAT V. WHITE, 253 U.S. 454. 

THE RULE OF THOSE CASES IS NOT RESTRICTED TO INSTANCES WHERE CONGRESS
ITSELF HAS PROVIDED FOR A HEARING.  THE JAPANESE IMMIGRANT CASE, 189
U.S. 86, DECIDED IN 1903, SO HELD.  THE COURT IN THAT CASE HELD THAT
DUE PROCESS REQUIRED THAT DEPORTATION BE HAD ONLY AFTER NOTICE AND
HEARING EVEN THOUGH THERE, AS HERE, THE STATUTE PRESCRIBED NO SUCH
PROCEDURE BUT ENTRUSTED THE MATTER WHOLLY TO AN EXECUTIVE OFFICER.  FN2
CONSISTENTLY WITH THAT PRINCIPLE WE HELD IN BRIDGES V. WIXON, SUPRA,
THAT A VIOLATION OF THE RULES GOVERNING THE HEARING COULD BE REACHED ON
HABEAS CORPUS, EVEN THOUGH THE RULES WERE PRESCRIBED NOT BY CONGRESS
BUT BY THE ADMINISTRATIVE AGENCY IN CHARGE OF THE DEPORTATION
PROCEEDING.  WE STATED, P. 154: 

"WE ARE DEALING HERE WITH PROCEDURAL REQUIREMENTS PRESCRIBED FOR THE
PROTECTION OF THE ALIEN.  THOUGH DEPORTATION IS NOT TECHNICALLY A
CRIMINAL PROCEEDING, IT VISITS A GREAT HARDSHIP ON THE INDIVIDUAL AND
DEPRIVES HIM OF THE RIGHT TO STAY AND LIVE AND WORK IN THIS LAND OF
FREEDOM.  THAT DEPORTATION IS A PENALTY - AT TIMES A MOST SERIOUS ONE -
CANNOT BE DOUBTED.  METICULOUS CARE MUST BE EXERCISED LEST THE
PROCEDURE BY WHICH HE IS DEPRIVED OF THAT LIBERTY NOT MEET THE
ESSENTIAL STANDARDS OF FAIRNESS." 

THE SAME PRINCIPLES ARE APPLICABLE HERE.  THE PRESIDENT HAS
CLASSIFIED ALIEN ENEMIES BY REGULATIONS OF GENERAL APPLICABILITY AND
HAS AUTHORIZED DEPORTATION ONLY OF THOSE DEEMED DANGEROUS BECAUSE THEY
HAVE ADHERED TO AN ENEMY GOVERNMENT, OR THE PRINCIPLES THEREOF. 
PETITIONER WAS IN FACT GIVEN A HEARING IN 1945 BEFORE THE REPATRIATION
HEARING BOARD IN ADDITION TO ONE IN 1942 BEFORE THE ALIEN ENEMY HEARING
BOARD.  THE ORDER FOR HIS DEPORTATION RECITES THAT "UPON CONSIDERATION
OF THE EVIDENCE PRESENTED" BEFORE THOSE BOARDS, THE ATTORNEY GENERAL,
IN THE WORDS OF THE PROCLAMATION, DEEMS PETITIONER "TO BE DANGEROUS TO
THE PUBLIC PEACE AND SAFETY OF THE UNITED STATES BECAUSE HE HAS ADHERED
TO A GOVERNMENT WITH WHICH THE UNITED STATES IS AT WAR OR TO THE
PRINCIPLE THEREOF."  THOSE FINDINGS AND CONCLUSIONS AND THE PROCEDURE
BY WHICH THEY WERE REACHED MUST CONFORM WITH THE REQUIREMENTS OF DUE
PROCESS.  AND HABEAS CORPUS IS THE TIME-HONORED PROCEDURE TO PUT THEM
TO THE TEST. 

THE INQUIRY IN THIS TYPE OF CASE NEED BE NO GREATER AN INTRUSION IN
THE AFFAIRS OF THE EXECUTIVE BRANCH OF GOVERNMENT THAN INQUIRIES BY
HABEAS CORPUS IN TIMES OF PEACE INTO A DETERMINATION THAT THE ALIEN IS
CONSIDERED TO BE AN "UNDESIRABLE RESIDENT OF THE UNITED STATES."  SEE
MAHLER V. EBY, 264 U.S. 32.  BOTH INVOLVE ONLY A DETERMINATION THAT
PROCEDURAL DUE PROCESS IS SATISFIED, THAT THERE BE A FAIR HEARING, AND
THAT THE ORDER BE BASED UPON SOME EVIDENCE. 

THE NEEDS OF THE HOUR MAY WELL REQUIRE SUMMARY APPREHENSION AND
DETENTION OF ALIEN ENEMIES.  A NATION AT WAR NEED NOT BE DETAINED BY
TIME-CONSUMING PROCEDURES WHILE THE ENEMY BORES FROM WITHIN.  BUT WITH
AN ALIEN ENEMY BEHIND BARS, THAT DANGER HAS PASSED.  IF HE IS TO BE
DEPORTED ONLY AFTER A HEARING, OUR CONSTITUTIONAL REQUIREMENTS ARE THAT
THE HEARING BE A FAIR ONE.  IT IS FOREIGN TO OUR THOUGHT TO DEFEND A
MOCK HEARING ON THE GROUND THAT IN ANY EVENT IT WAS A MERE GRATUITY. 
HEARINGS THAT ARE ARBITRARY AND UNFAIR ARE NO HEARINGS AT ALL UNDER OUR
SYSTEM OF GOVERNMENT.  AGAINST THEM HABEAS CORPUS PROVIDES IN THIS CASE
THE ONLY PROTECTION. 

THE NOTION THAT THE DISCRETION OF ANY OFFICER OF GOVERNMENT CAN
OVERRIDE DUE PROCESS IS FOREIGN TO OUR SYSTEM.  DUE PROCESS DOES NOT
PERISH WHEN WAR COMES.  IT IS WELL ESTABLISHED THAT THE WAR POWER DOES
NOT REMOVE CONSTITUTIONAL LIMITATIONS SAFEGUARDING ESSENTIAL
LIBERTIES.  HOME BLDG. & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 426. 

FN1  SEE UNITED STATES EX REL. SCHLUETER V. WATKINS, 67 F.SUPP.  556,
AFF'D 158 F.2D 853; UNITED STATES V. LONGO, 46 F.SUPP.  170; UNITED
STATES V. UHL, 46 F.SUPP.  688, REV'D ON OTHER GROUNDS, 137 F.2D 858;
EX PARTE GILROY, 257 F. 110; BANNING V. PENROSE, 255 F. 159; EX PARTE
FRONKLIN, 253 F. 984; MINOTTO V. BRADLEY, 252 F. 600.  CF. CITIZENS
PROTECTIVE LEAGUE V. CLARK, 81 U.S. APP. D.C. 116, 155 F.2D 290; DE
LACEY V. UNITED STATES, 249 F. 625.  IN THE SCHLUETER CASE IT WAS HELD
THAT THE CONSTITUTION AND THE STATUTE DO NOT REQUIRE A HEARING AND THUS
AN ALIEN ENEMY CANNOT COMPLAIN OF THE CHARACTER OF THE HEARING HE DID
RECEIVE.  67 F.SUPP.  AT 565.    FN2  THE COURT SAID, 189 U.S. P. 101:
"  ...  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." 
..END :























AHRENS V. CLARK, 335 U.S. 188 


NO. 446.  ARGUED MARCH 29, 1948.  - DECIDED JUNE 21, 1948.  - AFFIRMED. 


1.  A FEDERAL DISTRICT COURT IS WITHOUT JURISDICTION TO ISSUE A WRIT
OF HABEAS CORPUS IF THE PERSON DETAINED IS NOT WITHIN THE TERRITORIAL
JURISDICTION OF THE COURT WHEN THE PETITION IS FILED.  PP. 189-193. 

2.  THE HISTORY OF THE STATUTE (28 U.S.C. SEC. 452) CONFERRING POWER
ON THE DISTRICT COURTS, "WITHIN THEIR RESPECTIVE JURISDICTIONS," TO
GRANT WRITS OF HABEAS CORPUS, INDICATES THAT CONCLUSION.  PP. 191-193. 

3.  CONSIDERATIONS OF POLICY WHICH MIGHT WARRANT GIVING THE DISTRICT
COURTS DISCRETION IN THIS MATTER ARE FOR CONGRESS, NOT THE COURTS.  PP.
192-193. 

4.  THE JURISDICTIONAL REQUIREMENT THAT THE PERSON FOR WHOSE RELIEF A
PETITION FOR A WRIT OF HABEAS CORPUS IS INTENDED MUST BE WITHIN THE
TERRITORIAL JURISDICTION OF THE DISTRICT COURT IS ONE WHICH CONGRESS
HAS IMPOSED ON THE POWER OF THE DISTRICT COURT TO ACT, AND IT MAY NOT
BE WAIVED BY THE PARTIES.  P. 193. 

5.  EX PARTE ENDO, 323 U.S. 283, DISTINGUISHED.  P. 193. 

AHRENS ET AL. V. CLARK, ATTORNEY GENERAL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

THE DISTRICT COURT DISMISSED PETITIONERS' APPLICATIONS FOR WRITS OF
HABEAS CORPUS TO SECURE THEIR RELEASE FROM DETENTION UNDER REMOVAL
ORDERS ISSUED BY THE ATTORNEY GENERAL UNDER A PRESIDENTAL PROCLAMATION
PURSUANT TO THE ALIEN ENEMY ACT.  THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA DISMISSED ON APPEAL.  THIS COURT GRANTED
CERTIORARI.  333 U.S. 826.  AFFIRMED, P. 193. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
REED. 

THE INITIAL QUESTION PRESENTED IN THIS CASE IS THE ONE WE RESERVED IN
EX PARTE ENDO, 323 U.S. 283, 305, VIZ. WHETHER THE PRESENCE WITHIN THE
TERRITORIAL JURISDICTION OF THE DISTRICT COURT OF THE PERSON DETAINED
IS PREREQUISITE TO FILING A PETITION FOR A WRIT OF HABEAS CORPUS. 

PETITIONERS ARE SOME 120 GERMANS WHO ARE BEING HELD AT ELLIS ISLAND,
NEW YORK, FOR DEPORTATION TO GERMANY.  THEIR DEPORTATION HAS BEEN
DIRECTED UNDER REMOVAL ORDERS ISSUED BY THE ATTORNEY GENERAL WHO HAS
FOUND THAT EACH OF THEM IS DANGEROUS TO THE PUBLIC PEACE AND SAFETY OF
THE UNITED STATES BECAUSE HE HAS ADHERED TO A GOVERNMENT WITH WHICH THE
UNITED STATES IS AT WAR OR TO THE PRINCIPLES THEREOF.  THESE REMOVAL
ORDERS WERE ISSUED UNDER PRESIDENTIAL PROCLAMATION 2655 OF JULY 14,
1945(10 FED. REG. 8947) PURSUANT TO THE ALIEN ENEMY ACT OF 1798, R.S.
SEC. 4067, 50 U.S.C. SEC. 21.  THE ORDERS ARE CHALLENGED BY THESE
PETITIONS FOR WRITS OF HABEAS CORPUS ON SEVERAL GROUNDS, THE PRINCIPAL
ONE BEING THAT ALL OF THEM EXCEED THE STATUTORY AUTHORITY IN THAT THEY
WERE ISSUED AFTER ACTUAL HOSTILITIES WITH GERMANY CEASED. 

THE PETITIONS WERE FILED IN THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA AND ALLEGED THAT PETITIONERS WERE CONFINED AT ELLIS ISLAND,
NEW YORK, AND ARE "SUBJECT TO THE CUSTODY AND CONTROL" OF THE ATTORNEY
GENERAL.  RESPONDENT MOVED TO DISMISS BECAUSE, INTER ALIA, PETITIONERS
WERE OUTSIDE THE TERRITORIAL CONFINES OF THE DISTRICT OF COLUMBIA.  THE
COURT OF APPEALS DISMISSED AN APPEAL FROM THE ORDER OF THE DISTRICT
COURT GRANTING THE MOTION. 

THE STATUTE, 28 U.S.C. SEC. 452, PROVIDES: 

"THE SEVERAL JUSTICES OF THE SUPREME COURT AND THE SEVERAL JUDGES OF
THE CIRCUIT COURTS OF APPEAL AND OF THE DISTRICT COURTS, WITHIN THEIR
RESPECTIVE JURISDICTIONS, SHALL HAVE POWER TO GRANT WRITS OF HABEAS
CORPUS FOR THE PURPOSE OF AN INQUIRY INTO THE CAUSE OF RESTRAINT OF
LIBERTY.  A CIRCUIT JUDGE SHALL HAVE THE SAME POWER TO GRANT WRITS OF
HABEAS CORPUS WITHIN HIS CIRCUIT, THAT A DISTRICT JUDGE HAS WITHIN HIS
DISTRICT; AND THE ORDER OF THE CIRCUIT JUDGE SHALL BE ENTERED IN THE
RECORDS OF THE DISTRICT COURT OF THE DISTRICT WHEREIN THE RESTRAINT
COMPLAINED OF IS HAD." 

THE QUESTION AT THE THRESHOLD OF THE CASE IS WHETHER THE WORDS
"WITHIN THEIR RESPECTIVE JURISDICTIONS" LIMIT THE DISTRICT COURTS TO
INQUIRES INTO THE CAUSES OF RESTRAINTS OF LIBERTY OF THOSE CONFINED OR
RESTRAINED WITHIN THE TERRITORIAL JURISDICTIONS OF THOSE COURTS.  THERE
ARE FEW CASES ON ALL FOURS WITH THE PRESENT ONE, THE PRECISE QUESTION
NOT HAVING FREQUENTLY ARISEN IN THE LOWER FEDERAL COURTS.  BUT THE
GENERAL VIEW IS THAT THEIR JURISDICTION IS SO CONFINED.  MCGOWAN V.
MOODY, 22 APP. D.C. 148, 158 ET SEQ.; IN RE BICKLEY, 3 FED. CAS. 332. 
AND SEE IN RE BOLES, 48 F. 75; EX PARTE GOUYET, 175 F. 230, 233; UNITED
STATES V. DAY, 50 F.2D 816, 817; JONES V. BIDDLE, 131 F.2D 853, 854;
UNITED STATES V. SCHLOTFELDT, 136 F.2D 935, 940.  FN1  CF. SANDERS V.
ALLEN, 69 APP. D.C. 307, 100 F.2D 717; TIPPITT V. WOOD, 78 U.S. APP.
D.C. 332, 140 F.2D 689.  THAT IS OUR VIEW. 

WE START FROM THE ACCEPTED PREMISE THAT APART FROM SPECIFIC
EXCEPTIONS CREATED BY CONGRESS THE JURISDICTION OF THE DISTRICT COURTS
IS TERRITORIAL.  SEE GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 467
468, AND CASES CITED.  IT IS NOT SUFFICIENT IN OUR VIEW THAT THE JAILER
OR CUSTODIAN ALONE BE FOUND IN THE JURISDICTION. 

ALTHOUGH THE WRIT IS DIRECTED TO THE PERSON IN WHOSE CUSTODY THE
PARTY IS DETAINED, 28 U.S.C. SEC. 455, THE STATUTORY SCHEME
CONTEMPLATES A PROCEDURE WHICH MAY BRING THE PRISONER BEFORE THE
COURT.  FOR SEC. 458 PROVIDES THAT "THE PERSON MAKING THE RETURN SHALL
AT THE SAME TIME BRING THE BODY OF THE PARTY BEFORE THE JUDGE WHO
GRANTED THE WRIT."  SEE WALKER V. JOHNSTON, 312 U.S. 275.  IT WOULD
TAKE COMPELLING REASONS TO CONCLUDE THAT CONGRESS CONTEMPLATED THE
PRODUCTION OF PRISONERS FROM REMOTE SECTIONS, PERHAPS THOUSANDS OF
MILES FROM THE DISTRICT COURT THAT ISSUED THE WRIT.  THE OPPORTUNITIES
FOR ESCAPE AFFORDED BY TRAVEL, THE COST OF TRANSPORTATION, THE
ADMINISTRATIVE BURDEN OF SUCH AN UNDERTAKING NEGATE SUCH A PURPOSE. 
THESE ARE MATTERS OF POLICY WHICH COUNSEL US TO CONSTRUE THE
JURISDICTIONAL PROVISION OF THE STATUTE IN THE CONVENTIONAL SENSE, EVEN
THOUGH IN SOME SITUATIONS RETURN OF THE PRISONER TO THE COURT WHERE HE
WAS TRIED AND CONVICTED MIGHT SEEM TO OFFER SOME ADVANTAGES. 

THE HISTORY OF THE STATUTE SUPPORTS THIS VIEW.  IT CAME INTO THE LAW
AS THE ACT OF FEBRUARY 5, 1867, 14 STAT. 385.  AND SEE ACT OF AUGUST
29, 1842, 5 STAT. 539.  PRIOR TO THAT DATE IT WAS THE ACCEPTED VIEW
THAT A PRISONER MUST BE WITHIN THE TERRITORIAL JURISDICTION OF THE
DISTRICT COURT IN ORDER TO OBTAIN FROM IT A WRIT OF HABEAS CORPUS.  SEE
EX PARTE GRAHAM, 4 WASH. C.C. 211; FN2  IN RE BICKLEY, 3 FED. CAS.
332.  CF. UNITED STATES V. DAVIS, 5 CRANCH C.C. 622.  THE BILL AS
INTRODUCED IN THE SENATE WAS THOUGHT TO CONTAIN AN INFIRMITY.  THE
OBJECTION WAS MADE ON THE FLOOR THAT IT WOULD PERMIT "A DISTRICT JUDGE
IN FLORIDA TO BRING BEFORE HIM SOME MEN CONVICTED AND SENTENCED AND
HELD UNDER IMPRISONMENT IN THE STATE OF VERMONT OR IN ANY OF THE
FURTHER STATES."  CONG. GLOBE, 39TH CONG., 2D SESS. 730.  AS A RESULT
OF THAT OBJECTION SENATOR TRUMBULL, WHO HAD CHARGE OF THE BILL, OFFERED
AN AMENDMENT WHICH ADDED THE WORDS "WITHIN THEIR RESPECTIVE
JURISDICTIONS."  IBID. AT 790.  THAT AMENDMENT WAS ADOPTED AS A
SATISFACTORY SOLUTION OF THE IMAGINED DIFFICULTY.  FN3  N3.  ID.  THUS
THE VIEW THAT THE JURISDICTION OF THE DISTRICT COURT TO ISSUE THE WRIT
IN CASES SUCH AS THIS  FN4  IS RESTRICTED TO THOSE PETITIONERS WHO ARE
CONFINED OR DETAINED WITHIN THE TERRITORIAL JURISDICTION OF THE COURT
IS SUPPORTED BY THE LANGUAGE OF THE STATUTE, BY CONSIDERATIONS OF
POLICY, AND BY THE LEGISLATIVE HISTORY OF THE ENACTMENT.  WE THEREFORE
DO NOT FEEL FREE TO WEIGH THE POLICY CONSIDERATIONS WHICH ARE ADVANCED
FOR GIVING DISTRICT COURTS DISCRETION IN CASES LIKE THIS.  IF THAT
CONCEPT IS TO BE IMPORTED INTO THIS STATUTE, CONGRESS MUST DO SO. 

RESPONDENT IS WILLING TO WAIVE THE POINT, SO THAT WE MAY MAKE A
DECISION ON THE MERITS.  BUT THE RESTRICTION IS ONE WHICH CONGRESS HAS
PLACED ON THE POWER OF THE DISTRICT COURT TO ACT.  HENCE IT MAY NOT BE
WAIVED BY THE PARTIES.  UNITED STATES V. GRIFFIN, 303 U.S. 226, 229. 

EX PARTE ENDO, SUPRA, P. 305, IS NOT OPPOSED TO THIS VIEW.  IN THAT
CASE PETITIONER AT THE TIME SUIT WAS INSTITUTED WAS WITHIN THE
TERRITORIAL JURISDICTION OF THE HABEAS CORPUS COURT BUT HAD
SUBSEQUENTLY BEEN REMOVED TO A DIFFERENT DISTRICT AND CIRCUIT.  WE
HELD, IN CONFORMITY WITH THE POLICY UNDERLYING RULE 45(1) OF THE COURT,
THAT JURISDICTION OF THE DISTRICT COURT WAS NOT DEFEATED IN THAT
MANNER, NO MATTER HOW PROPER THE MOTIVE BEHIND THE REMOVAL.  WE DECIDED
THAT IN THAT SITUATION THE COURT CAN ACT AS LONG AS IT CAN REACH A
PERSON WHO HAS CUSTODY OF THE PETITIONER. 

SINCE THERE IS A DEFECT IN THE JURISDICTION OF THE DISTRICT COURT
WHICH REMAINS UNCURED, WE DO NOT REACH THE QUESTION WHETHER THE
ATTORNEY GENERAL IS THE PROPER RESPONDENT (SEE SECS. 455 AND 458; WALES
V. WHITNEY, 114 U.S. 564, 574; JONES V. BIDDLE, SUPRA; SANDERS V.
BENNETT, 80 U.S. APP. D.C. 32, 148 F.2D 19) AND, IF NOT, WHETHER THE
OBJECTION MAY BE WAIVED, AS RESPONDENT IS WILLING TO DO.  CF. EX PARTE
ENDO, SUPRA, PP. 305-307.  AFFIRMED. 

FN1  BUT SEE EX PARTE FONG YIM, 134 F. 938; EX PARTE NG QUONG MING,
135 F. 378. 

FN2  THE PRINCIPLE WHICH GOVERNED THE DECISION WAS STATED BY MR.
JUSTICE WASHINGTON AS FOLLOWS, 4 WASH. C.C. PP. 211-212: 

"IT IS ADMITTED THAT THESE COURTS, IN THE EXERCISE OF THEIR COMMON
LAW AND EQUITY JURISDICTION, HAVE NO AUTHORITY, GENERALLY, TO ISSUE
PROCESS INTO ANOTHER DISTRICT, EXCEPT IN CASES WHERE SUCH AUTHORITY HAS
BEEN SPECIALLY BESTOWED BY SOME LAW OF THE UNITED STATES.  THE ABSENCE
OF SUCH A POWER WOULD SEEM NECESSARILY TO RESULT FROM THE ORGANIZATION
OF THE COURT OF THE UNITED STATES, BY WHICH TWO COURTS ARE ALLOTTED TO
EACH OF THE DISTRICTS INTO WHICH THE UNITED STATES ARE DIVIDED, THE ONE
DENOMINATED A DISTRICT, AND THE OTHER A CIRCUIT COURT.  THIS DIVISION
AND APPOINTMENT OF PARTICULAR COURTS FOR EACH DISTRICT, NECESSARILY
CONFINES THE JURISDICTION OF THESE LOCAL TRIBUNALS WITHIN THE LIMITS OF
THE RESPECTIVE DISTRICTS WITHIN WHICH THEY ARE DIRECTED TO BE HOLDEN. 
WERE IT OTHERWISE, AND THE COURT OF ONE DISTRICT COULD SEND COMPULSORY
PROCESS INTO ANY OTHER, SO AS TO DRAW TO ITSELF A JURISDICTION OVER
PERSONS AND THINGS WITHOUT THE LIMITS OF ITS DISTRICT, THERE WOULD
RESULT A CLASHING OF JURISDICTION BETWEEN THE DIFFERENT COURTS NOT
EASILY TO BE ADJUSTED, AND AN OPPRESSION UPON SUITORS TOO INTOLERABLE
TO BE ENDURED." 

FN3  THE STATUTE THEN READ, "THAT THE SEVERAL COURTS OF THE UNITED
STATES, AND THE SEVERAL JUSTICES AND JUDGES OF SUCH COURTS, WITHIN
THEIR RESPECTIVE JURISDICTIONS, IN ADDITION TO THE AUTHORITY ALREADY
CONFERRED BY LAW, SHALL HAVE POWER TO GRANT WRITS OF HABEAS CORPUS IN
ALL CASES WHERE ANY PERSON MAY BE RESTRAINED OF HIS OR HER LIBERTY IN
VIOLATION OF THE CONSTITUTION, OR OF ANY TREATY OR LAW OF THE UNITED
STATES; ...  "  14 STAT. 385. 

FN4  WE NEED NOT DETERMINE THE QUESTION OF WHAT PROCESS, IF ANY, A
PERSON CONFINED IN AN AREA NOT SUBJECT TO THE JURISDICTION OF ANY
DISTRICT COURT MAY EMPLOY TO ASSERT FEDERAL RIGHTS.  CF. EX PARTE BETZ;
EX PARTE DURANT; EX PARTE WILLS; EX PARTE CUTINO; EX PARTE WALCZAK; EX
PARTE MCKINLEY; AND EX PARTE MURPHY, ALL REPORTED TOGETHER.  329 U.S.
672. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY JOIN, DISSENTING. 

THE JURISDICTIONAL TURN THIS CASE HAS TAKEN GIVES IT IMPORTANCE FAR
BEYOND THE SERIOUS QUESTIONS TENDERED ON THE MERITS OF PETITIONERS'
APPLICATION.  THEY ARE ALIEN ENEMIES INTERNED DURING THE WAR AS
DANGEROUS TO THE NATION'S SAFETY.  THEY NOW SEEK TO AVOID DEPORTATION
FROM A COUNTRY WHICH TAKES CARE FOR PERSONAL LIBERTIES, EVEN WHEN ITS
HOSPITALITY MAY BE ABUSED, TO ONE WHICH DENIED ITS OWN CITIZENS SUCH
RIGHTS UNTIL ITS STRUCTURE OF TYRANNY FELL IN RUINS.  WHETHER OR NOT
PETITIONERS HAVE FORFEITED THE RIGHT TO CONTINUED ENJOYMENT OF OUR
INSTITUTIONS AND THE LIFE THEY FOSTER, AND WHETHER THE FORFEITURE HAS
BEEN DECLARED AND CAN NOW BE EXECUTED PURSUANT TO LAWFULLY GRANTED
AUTHORITY, ARE INDEED IMPORTANT QUESTIONS, UPON WHICH THESE PETITIONERS
ARE AS MUCH ENTITLED TO HEARING AND DECISION AS LUDECKE.  CF. LUDECKE
V. WATKINS, ANTE, P. 160, DECIDED TODAY. 

BUT THE COURT, PUTTING THEM ASIDE FOR THESE PETITIONERS, CUTS MUCH
MORE SWEEPINGLY AT THE ROOTS OF INDIVIDUAL FREEDOM BY ITS DECISION UPON
THE JURISDICTIONAL ISSUE THAN COULD ANY DISPOSITION OF THOSE ISSUES. 
THE DECISION ATTENUATES THE PERSONAL SECURITY OF EVERY CITIZEN.  SO
DOES ANY SERIOUS CONTRACTION IN THE AVAILABILITY OF THE WRIT OF HABEAS
CORPUS.  FOR THE FIRST TIME THIS COURT PUTS A NARROW AND RIGID
TERRITORIAL LIMITATION UPON ISSUANCE OF THE WRIT BY THE INFERIOR
FEDERAL COURTS.  HERETOFORE SUCH CONSTRICTIVE FORMULATIONS HAVE BEEN
AVOIDED GENERALLY, EVEN ASSIDUOUSLY, OUT OF REGARD FOR THE WRIT'S GREAT
OFFICE IN THE VINDICATION OF PERSONAL LIBERTY.  SEE, E.G., BOWEN V.
JOHNSTON, 306 U.S. 19, 26-28; EX PARTE ENDO, 323 U.S. 283, 304-307;
PRICE V. JOHNSTON, 334 U.S. 266; WADE V. MAYO, 334 U.S. 672.  FN1 

BUT TODAY'S RULING, DEPARTING FROM THAT POLICY, IS THAT THE WRIT CAN
ISSUE ONLY WHEN THE PLACE OF CONFINEMENT LIES WITHIN THE LIMITS OF THE
COURT'S TERRITORIAL JURISDICTION.  THAT PURELY GEOGRAPHIC FACT AND IT
ALONE DETERMINES THE COURT'S COMPETENCE TO ACT.  AND THIS IS NOT MERELY
AS A MATTER OF VENUE OR OF ACCOMMODATION IN THE EXERCISE OF AUTHORITY
AMONG TRIBUNALS OF COORDINATE POWER, ALLOWING ROOM FOR SOME
ADAPTABILITY TO VARYING CIRCUMSTANCES.  IT IS ONE CRUCIAL BETWEEN
COMPETENCE TO ACT AND TOTAL IMPOTENCE.  ALL OTHER CONSIDERATIONS ARE
PUT TO ONE SIDE.  NEITHER THE JAILER'S PRESENCE AND AMENABILITY TO
PROCESS NOR HIS ABILITY OR EVEN HIS WILLINGNESS TO PRODUCE THE BODY CAN
CURE THE COURT'S BASIC INFIRMITY, IF BY ACCIDENT OR CHOICE THE LOCUS OF
CONFINEMENT HAPPENS TO FALL BEYOND THE PHYSICAL LINE. 

IF THIS IS OR IS TO BECOME THE LAW, THE FULL RAMIFICATIONS OF THE
DECISION ARE DIFFICULT TO FORESEE.  IT WOULD SEEM THAT A GREAT
CONTRACTION OF THE WRIT'S CLASSIC SCOPE AND EXPOSITION HAS TAKEN PLACE,
FN2  AND MUCH OF ITS HISTORIC EFFICACY MAY HAVE BEEN DESTROYED.  FOR
IF ABSENCE OF THE BODY FROM THE JURISDICTION IS ALONE CONCLUSIVE
AGAINST EXISTENCE OF POWER TO ISSUE THE WRIT, WHAT OF THE CASE WHERE
THE PLACE OF IMPRISONMENT, WHETHER BY PRIVATE OR PUBLIC ACTION, IS
UNKNOWN?  WHAT ALSO OF THE SITUATION WHERE THAT PLACE IS LOCATED IN ONE
DISTRICT, BUT THE JAILER IS PRESENT IN AND CAN BE SERVED WITH PROCESS
ONLY IN ANOTHER?  FN3  AND IF THE PLACE OF DETENTION LIES WHOLLY
OUTSIDE THE TERRITORIAL LIMITS OF ANY FEDERAL JURISDICTION, ALTHOUGH
THE PERSON OR PERSONS EXERCISING RESTRAINT ARE CLEARLY WITHIN REACH OF
SUCH AUTHORITY, IS THERE TO BE NO REMEDY, EVEN THOUGH IT IS AMERICAN
CITIZENS WHO ARE WRONGFULLY DEPRIVED OF THEIR LIBERTY AND AMERICANS
ANSWERABLE TO NO OTHER POWER WHO DEPRIVE THEM OF IT, WHETHER PURPORTING
TO ACT OFFICIALLY OR OTHERWISE?  IN ALL THESE CASES MAY THE JAILERS
STAND IN DEFIANCE OF FEDERAL JUDICIAL POWER, AND PLEAD EITHER THE
ACCIDENT OF THE LOCUS OF DETENTION OUTSIDE THE COURT'S TERRITORIAL
LIMITATIONS, OR THEIR OWN ASTUTENESS IN SO SELECTING THE PLACE, TO
NULLIFY JUDICIAL COMPETENCE? 

TO NONE OF THESE QUESTIONS DOES THE COURT GIVE ANSWER, ALTHOUGH IT
PURPORTS TO RESERVE DECISION CONCERNING ONE OF THEM.  YET IN ALL, IF
POWER TO ACT RESTS SOLELY ON THE BODY'S PRESENCE, ITS ABSENCE  FN4
WILL RENDER THE COURT IMPOTENT EVEN THOUGH THE JAILER IS WITHIN GRASP
OF ITS PROCESS FOR COMPELLING PRODUCTION AND, IT MAY BE, BEYOND REACH
OF THE LIKE PROCESS OF ANY OTHER COURT.  FOR UPON THE TEST PRESCRIBED,
THERE MUST BE CONJUNCTION OF THE BODY'S PRESENCE AND THE JAILER'S FOR
THE WRIT TO ISSUE.  ON THE OTHER HAND, IF RELIEF CAN BE GIVEN IN SUCH
CASES, WHERE THE CONJUNCTION DOES NOT EXIST, THEN IT IS NOT TRUE THAT
THE FEDERAL COURTS HAVE BEEN STRIPPED OF POWER TO AFFORD IT ONLY WHEN
THE BODY IS HELD WITHIN THE LIMITS OF THEIR TERRITORIAL JURISDICTIONS,
AND THE COURT'S GROUNDING OF THIS DECISION WOULD SEEM NEITHER NECESSARY
NOR PROPER FOR DISPOSITION OF THE CASE. 

BY THUS ELEVATING THE PLACE OF PHYSICAL CUSTODY TO THE LEVEL OF
EXCLUSIVE JURISDICTIONAL CRITERION, THE COURT GIVES CONTROLLING EFFECT
TO A FACTOR WHICH GENERALLY HAS BEEN REGARDED AS OF LITTLE OR NO
IMPORTANCE FOR JURISDICTIONAL PURPOSES OR FOR THE FUNCTIONING OF THE
WRIT IN ITS GREAT OFFICE AS HISTORICALLY CONCEIVED.  PERHAPS THE
CLASSIC EXPOSITION OF ITS NATURE AND AVAILABILITY, AS ALSO OF THE
CHARACTER OF THE PROCEEDING, IS THAT OF JUDGE COOLEY, QUOTED IN PART
WITH APPROVAL BY OUR OPINION IN EX PARTE ENDO, SUPRA: 

"THE IMPORTANT FACT TO BE OBSERVED IN REGARD TO THE MODE OF PROCEDURE
UPON THIS WRIT IS, THAT IT IS DIRECTED TO, AND SERVED UPON, NOT THE
PERSON CONFINED, BUT HIS JAILER.  IT DOES NOT REACH THE FORMER EXCEPT
THROUGH THE LATTER.  THE OFFICER OR PERSON WHO SERVES IT DOES NOT UNBAR
THE PRISON DOORS, AND SET THE PRISONER FREE, BUT THE COURT RELIEVES HIM
BY COMPELLING THE OPPRESSOR TO RELEASE HIS CONSTRAINT.  THE WHOLE FORCE
OF THE WRIT IS SPENT UPON THE RESPONDENT  ...  THE PLACE OF CONFINEMENT
IS THEREFORE NOT IMPORTANT TO THE RELIEF, IF THE GUILTY PARTY IS WITHIN
REACH OF PROCESS, SO THAT BY THE POWER OF THE COURT HE CAN BE COMPELLED
TO RELEASE HIS GRASP.  THE DIFFICULTY OF AFFORDING REDRESS IS NOT
INCREASED BY THE CONFINEMENT BEING BEYOND THE LIMITS OF THE STATE,
EXCEPT AS GREATER DISTANCE MAY AFFECT IT.  THE IMPORTANT QUESTION IS,
WHERE IS THE POWER OF CONTROL EXERCISED?"  FN5 

IN THIS HISTORIC VIEW THE PROCEEDING IN HABEAS CORPUS IS ANALOGOUS
JURISDICTIONALLY NEITHER TO ONE IN REM OR QUASI IN REM NOR TO THE
ANOMALOUSLY RESTRICTED PERSONAL ACTION, AS DEVELOPED IN THE COMMON LAW,
OF TRESPASS TO REALTY.  FN6  YET THE COURT'S DECISION GIVES TO THIS
PRIME REMEDY FOR INVASION OF PERSONAL LIBERTY AN AVAILABILITY IN THE
INFERIOR FEDERAL COURTS HARDLY GREATER THAN THOSE HIGHLY RESTRICTED
PROCEEDINGS POSSESS, JURISDICTIONALLY SPEAKING, FOR PURPOSES REMEDIAL
OF INJURIES TO PROPERTY.  THOSE COURTS INDEED ARE DEPRIVED OF POWERS IN
HABEAS CORPUS WHICH, AS JUDGE COOLEY POINTED OUT IN RELATION TO STATE
TRIBUNALS,  FN7  THEY MAY CONSTANTLY EXERT WITH EXTRATERRITORIAL
EFFECTS IN THE EXERCISE OF THEIR GENERAL JURISDICTION IN EQUITY. 

THIS EXALTATION OF THE TERRITORIAL ELEMENT IN JURISDICTION, WITH SUCH
CONSTRICTIVE AND POTENTIALLY DESTRUCTIVE CONSEQUENCES, THE COURT MAKES
BY REASON OF ITS CONCEPTION OF THE MEANING OF THE STATUTORY PHRASE,
"WITHIN THEIR RESPECTIVE JURISDICTIONS," 28 U.S.C. SEC. 452; THE
LEGISLATIVE HISTORY OF ITS INSERTION; AND CERTAIN CONSIDERATIONS OF
POLICY, RELATING ESPECIALLY TO THE PRODUCTION OF PERSONS DETAINED BY
FEDERAL PENAL OR OTHER AUTHORITIES IN COURTS DISTANT FROM THE PLACES OF
DETENTION AND THOUGHT TO REQUIRE THE NARROW READING GIVEN.  I DO NOT
THINK THESE CONSIDERATIONS COMPEL SO RIGID A JURISDICTIONAL
SIGNIFICANCE, OR THAT THIS IS NECESSARY TO AVOID THE EVILS THE COURT
THUS SEEKS TO ESCAPE. 

THE JURISDICTIONAL PROBLEM AS PRESENTED BY THE FACTS INVOLVES TWO
QUESTIONS.  THE FIRST, THE COURT DOES NOT REACH.  BUT IT IS ONE I THINK
BASIC TO CONSIDERATION OF THE OTHER, A DIFFERENCE NO DOUBT DUE TO
DIFFERENT EMPHASIS UPON THE TERRITORIAL ELEMENT IN JURISDICTIONAL
MATTERS OF THIS SORT.  THE QUESTION IS WHETHER THE ATTORNEY GENERAL IS
A PROPER PARTY RESPONDENT.  THE ANSWER TURNS ON WHETHER THE PETITIONERS
ARE IN HIS CUSTODY  FN8  AND THUS ARE SUBJECT TO HIS POWER OF
PRODUCTION.  IN MY OPINION THEY ARE. 

THE SAME PRINCIPLE WHICH FORBIDS FORMULATION OF RIGID JURISDICTIONAL
LIMITATIONS UPON THE USE OF THIS PREROGATIVE WRIT IN OTHER RESPECTS,
INCONSISTENT WITH ITS AVAILABILITY FOR PERFORMING ITS OFFICE IN VARYING
CIRCUMSTANCES, FORBIDS LIMITING THOSE WHO MAY BE CALLED UPON TO ANSWER
FOR RESTRAINTS THEY UNLAWFULLY IMPOSE BY TECHNICAL NICETIES OF THE LAW
OF PRINCIPAL AND AGENT, SUPERIOR OR SUBORDINATE IN PUBLIC AUTHORITY, OR
IMMEDIACY OR REMOTENESS OF THE INCIDENCE OF THE AUTHORITY OR POWER TO
RESTRAIN.  JURISDICTIONALLY SPEAKING, IT IS, OR SHOULD BE, ENOUGH THAT
THE RESPONDENT NAMED HAS THE POWER OR ABILITY TO PRODUCE THE BODY WHEN
SO DIRECTED BY THE COURT PURSUANT TO PROCESS LAWFULLY ISSUED AND SERVED
UPON HIM.  FN9 

THERE CAN BE NO QUESTION OF THE ATTORNEY GENERAL'S POWER TO PRODUCE
THE PETITIONERS IN THIS CASE.  FOR HE IS IN COMPLETE CHARGE OF THE
PROCEEDINGS LEADING UP TO THE ORDER DIRECTING THEIR REMOVAL FROM THE
COUNTRY; FN10  INDEED HE CLAIMS TO HAVE COMPLETE DISCRETION TO DECIDE
WHETHER OR NOT REMOVAL SHALL BE DIRECTED.  IN VIEW OF HIS ALL-PERVASIVE
CONTROL OVER THEIR FORTUNES, IT CANNOT BE DOUBTED THAT HE IS A PROPER
PARTY TO RESIST "AN INQUIRY INTO THE CAUSE OF RESTRAINT OF LIBERTY" IN
THEIR CASES.  FN11 

MOREOVER, THERE CAN BE NO DOUBT OF THE ATTORNEY GENERAL'S
AMENABILITY, IN HIS OFFICIAL CAPACITY, TO PROCESS IN THE DISTRICT OF
COLUMBIA SEARCHING HIS OFFICIAL ACTS FOR LAWFUL AUTHORITY,  FN12 NOR
DOES HE CLAIM IMMUNITY IN THIS RESPECT. 

THE CASE THEREFORE IS ONE IN WHICH EVERY REQUISITE OF JURISDICTION,
AS THE WRIT HAS BEEN CONCEIVED HISTORICALLY, IS PRESENT.  THE PERSON
HAVING CUSTODY OF THE BODY HAS NOT ONLY THE ABILITY BUT THE AUTHORITY
TO PRODUCE IT.  HE IS WITHIN REACH OF THE COURT'S PROCESS AND AMENABLE
TO IT FOR THAT PURPOSE.  INDEED IN THIS CASE HE IS WILLING TO RESPOND
AND, TO THAT END, TO WAIVE ANY OBJECTION HE MIGHT BE ENTITLED TO MAKE
TO THE COURT'S EXERCISE OF ITS POWER.  FN13  UNLESS THEREFORE POWER IS
TOTALLY WANTING BY REASON OF PETITIONERS' ABSENCE FROM THE DISTRICT,
THERE IS NO INSUPERABLE OBSTACLE TO ITS EXERCISE IN THIS CASE.  AND AS
TO THIS THE ATTORNEY GENERAL DOES NOT URGE, HE MERELY SUGGESTS, IN VIEW
OF CERTAIN DICTA AND DECISIONS, SEE NOTE 18, THAT THE POWER MAY BE
LACKING FOR THAT REASON. 

IF SO, THIS CAN BE ONLY BECAUSE THE STATUTORY WORDING, "WITHIN THEIR
RESPECTIVE JURISDICTIONS," COMPELS THE COURT'S CONCLUSION.  FN14  THE
LANGUAGE, HOWEVER, DOES NOT EVEN PURPORT TO DEFINE "THEIR RESPECTIVE
JURISDICTIONS" IN TERMS OF WHERE THE BODY RESTRAINED IS HELD.  INDEED,
IT GIVES NO INDICATION THAT ABSENCE OF THE PERSONS DETAINED FROM THE
DISTRICT WHICH HAS PERSONAL JURISDICTION OF THEIR CUSTODIAN CREATES AN
INSUPERABLE JURISDICTIONAL DEFECT, WITH THE NECESSARY CONSEQUENCE THAT
IF HE IS BEYOND REACH OF PROCESS ISSUED BY THE COURTS WHERE THE BODY IS
HELD THERE CAN BE NO REMEDY BY HABEAS CORPUS IN ANY FEDERAL COURT.  ON
THE CONTRARY, THE WORDING OF THE STATUTORY PHRASE IS AS CONSISTENT WITH
REGARDING "THEIR RESPECTIVE JURISDICTIONS" AS ATTACHING WHEN THE COURT
ACQUIRES JURISDICTION OVER THE JAILER BY SERVICE OF PROCESS WITHIN THE
LIMITS OF ITS TERRITORIAL JURISDICTION, EVEN THOUGH THE PLACE OF
DETENTION IS ELSEWHERE, AS IT IS TO INVERT THOSE FACTORS OF TERRITORIAL
LIMITATION IN THE MANNER OF THE COURT'S CONSTRUCTION. 

IT IS TRUE THAT CONGRESS, WHEN IT ADDED THE PHRASE, WAS CONCERNED
WITH THE PROBLEM, OR RATHER THE POSSIBILITY, THAT THE INFERIOR FEDERAL
COURTS MIGHT ABUSE THEIR POWER, IN ISSUING THE WRIT, BY REQUIRING THE
PRODUCTION OF PERSONS DETAINED IN DISTANT PLACES, WITH THE EFFECT OF
MALADJUSTMENT IN THE EXERCISE OF AUTHORITY AS AMONG THE DIFFERENT
FEDERAL COURTS.  BUT IT DOES NOT FOLLOW, AS THE COURT CONCLUDES, THAT
IT SOUGHT TO SOLVE THOSE PROBLEMS IN A MANNER THAT WOULD DEPRIVE ALL
COURTS OF POWER TO ISSUE THE WRIT EXCEPT THOSE SITTING IN THE PLACE OF
DETENTION.  AS WILL APPEAR, CONGRESS WAS DEALING WITH AN EVEN BROADER
POSSIBILITY FOR ABUSE, AND WHILE IT SOUGHT TO LIMIT AUTHORITY TO ISSUE
THE WRIT, THERE IS NOTHING IN THE STATUTORY LANGUAGE, THE LEGISLATIVE
HISTORY, OR THE PROBLEM OF STATUTORY AUTHORIZATION THE AMENDMENT WAS
INTRODUCED TO SOLVE, WHICH SHOWS THAT SO NARROW AND RIGID A RESTRICTION
WAS CONTEMPLATED. 

TO PUT THE MATTER IN PROPER PERSPECTIVE, BEFORE TURNING TO THE
LEGISLATIVE HISTORY AND THE PRECISE PROBLEM WITH WHICH IT WAS
CONCERNED, IT IS IMPORTANT TO EMPHASIZE THAT THE ALTERNATIVE TO THE
COURT'S HOLDING IS NOT THAT PETITIONERS HAVE A RIGHT TO BE HEARD IN A
DISTANT COURT WHENEVER THE ATTORNEY GENERAL MAY THERE BE SERVED. 
RATHER THE ALTERNATIVE IS THAT THEIR ABSENCE FROM THE DISTRICT IS A
CIRCUMSTANCE WHICH NORMALLY WOULD INDUCE THE COURT TO EXERCISE ITS
DISCRETION TO DECLINE JURISDICTION, BUT WHICH MAY BE DISREGARDED IN
EXCEPTIONAL CIRCUMSTANCES IF THE RESPONDENT SO DESIRES OR IF THE COURT
FINDS THAT JUSTICE IN THE PARTICULAR CIRCUMSTANCES SO DEMANDS. 

EVEN THOUGH WE START FROM THE ACCEPTED PREMISE THAT FOR THIS PURPOSE
THE JURISDICTION OF THE DISTRICT COURT IS TERRITORIAL, SEE GEORGIA V.
PENNSYLVANIA R. CO., 324 U.S. 439, 467-468, WE SHOULD ALSO RECALL, AS
HAS ALREADY BEEN STATED, THAT THE ATTORNEY GENERAL IS WITHIN THE
TERRITORIAL JURISDICTION OF THE COURT IN WHICH THESE PROCEEDINGS WERE
INSTITUTED.  IT IS WITHIN HIS POWER TO TERMINATE THE RESTRAINT OF
PETITIONERS' LIBERTY WITHOUT LEAVING THE DISTRICT OF COLUMBIA.  IN THE
SENSE STATED BY JUDGE COOLEY, HIS POWER OF CONTROL IS EXERCISED WITHIN
THAT DISTRICT.  WE HAVE NO PROBLEM OF ISSUING PROCESS TO BE SERVED
OUTSIDE THE DISTRICT OF COLUMBIA SUCH AS MIGHT RESULT IN "A CLASHING OF
JURISDICTION BETWEEN THE DIFFERENT COURTS NOT EASILY TO BE ADJUSTED,
AND AN OPPRESSION UPON SUITORS TOO INTOLERABLE TO BE ENDURED," AND WITH
WHICH ALONE IN MY OPINION THE STATUTORY PHRASE SOUGHT TO DEAL.  FN15 

WHEN THE CASES WHERE BOTH THE CUSTODIAN AND HIS PRISONER ARE OUTSIDE
THE TERRITORIAL JURISDICTION OF THE COURT  FN16  ARE SEPARATED FROM
THOSE WHERE THE CUSTODIAN IS WITHIN THE JURISDICTION THOUGH THE
PRISONER IS ELSEWHERE,  FN17  THE WEIGHT OF AUTHORITY IN THE LOWER
FEDERAL COURTS IS OPPOSED TO THE CONCLUSION REACHED TODAY.  FN18  WITH
THE FORMER CLASS THIS CASE IS NOT CONCERNED.  BUT, FOR REASONS YET TO
BE STATED, IT IS WITH THAT CLASS ALONE, IN MY OPINION, THAT THE PHRASE
"WITHIN THEIR RESPECTIVE JURISDICTIONS" SOUGHT TO DEAL.  MOREOVER,
OTHER AUTHORITIES HAVE GENERALLY TAKEN THE POSITION THAT JURISDICTION
OVER THE CUSTODIAN IS SUFFICIENT REGARDLESS OF THE LOCATION OF THE
PARTY RESTRAINED N19.  IN THE LIGHT OF THIS PREVAILING CONCEPTION OF
THE PROBLEM, WE TURN TO THE COURT'S REASONS FOR DEPARTING FROM IT. 

PRINCIPAL RELIANCE IS PLACED ON THE LEGISLATIVE HISTORY OF THE 1867
AMENDMENT.  BUT THIS HISTORY NEITHER REQUIRES NOR, IN MY OPINION,
JUSTIFIES THE COURT'S VIEW.  IT CONSISTS IN A SHORT STATEMENT BY
SENATOR JOHNSON, FOLLOWED BY BRIEF COLLOQUY, WHICH LED TO INSERTION OF
THE PHRASE.  CONG. GLOBE, 39TH CONG., 2D SESS. 730, 790, 899.  IT SEEMS
QUITE CLEAR THAT HE WAS CONCERNED ABOUT A WHOLLY DIFFERENT PROBLEM,
ARISING FROM THE BILL'S BROAD WORDING BEFORE THE LIMITING PHRASE WAS
INTRODUCED.  FN20  THIS WAS THE POSSIBILITY THAT THE BILL WOULD CONFER
POWER UPON DISTRICT JUDGES TO ISSUE PROCESS AGAINST JAILERS IN REMOTE
DISTRICTS, AND THUS CREATE DEPARTURE FROM THE USUAL RULE, IN HABEAS
CORPUS CASES AS IN OTHERS, THAT PROCESS DOES NOT RUN BEYOND THE
TERRITORIAL JURISDICTION OF THE ISSUING COURT.  THE SENATOR WISHED TO
MAKE SURE THAT THE BILL WOULD NOT HAVE THAT EFFECT.  AND THE UNDERLYING
ASSUMPTION OF THE ENTIRE DISCUSSION WAS THAT, WITHOUT THE LIMITATION
PROPOSED, THE BILL'S UNLIMITED LANGUAGE MIGHT BE TAKEN TO GIVE
AUTHORITY TO DISTRICT COURTS TO ISSUE PROCESS TO RUN THROUGHOUT THE
COUNTRY, COMPARABLE AS WAS SAID TO THAT EXERCISED BY JUSTICES OF THIS
COURT, OR EVEN BEYOND ITS BORDERS,  FN21  AND THUS TO BRING BEFORE THEM
JAILERS WITHOUT REGARD TO DISTANCE. 

IT WAS THIS POSSIBILITY WHICH LED TO THE PROPOSAL AND ACCEPTANCE OF
THE AMENDMENT, NOT THAT A JAILER WITHIN THE COURT'S JURISDICTION, I.E.,
IN REACH OF ITS PROCESS ISSUED AND SERVED WITHIN ITS TERRITORIAL
JURISDICTION, MIGHT DETAIN THE BODY OUTSIDE THOSE LIMITS AND BE
REQUIRED TO BRING IT BEFORE THE COURT WHEN ORDERED.  INDEED THERE IS
NOT A WORD IN THE LEGISLATIVE DISCUSSION ABOUT THE LATTER SITUATION, OR
TO SUGGEST THAT IT WAS THE CAUSE EITHER OF CONCERN OR OF THE
AMENDMENT'S INCLUSION.  NEITHER SENATOR JOHNSON NOR ANYONE ELSE SEEMS
TO HAVE HAD IN MIND THE SITUATION WHERE THE LOCUS OF DETENTION IS IN
ONE JURISDICTION AND THE JAILER IS PRESENT IN ANOTHER, AMENABLE TO ITS
PROCESS.  FN22  IT IS THIS CRUCIAL FACT WHICH THE COURT'S OPINION AND
RULING IGNORE. 

CONFINING THE RUNNING OF THE COURT'S PROCESS TO ITS TERRITORIAL
JURISDICTION IS OF COURSE A VERY DIFFERENT THING FROM CONFINING ITS
JURISDICTION TO CASES IN WHICH THE PRISONER'S BODY IS LOCATED WITHIN
THOSE LIMITS.  MOST IMPORTANTLY, IT IS ONE MUCH LESS DESTRUCTIVE OF THE
WRIT'S EFFICACY IN CASES WHERE IT MAY BE MOST NEEDED, AND OF THE
HISTORIC CONCEPTION OF THE NATURE AND SCOPE OF THE PROCEEDING.  THE
AMENDMENT'S TERMS ARE COMPLETELY SATISFIED, ARE GIVEN THEIR FULL AND
INTENDED EFFECT, IF THEY ARE LIMITED TO THE FORMER OBJECT.  SO TAKEN,
THEY DO NO MORE THAN PREVENT THE SECTION'S OTHERWISE UNLIMITED PHRASING
FROM AUTHORIZING PROCESS TO RUN WITHOUT TERRITORIAL LIMITATION, CF.
GEORGIA V. PENNSYLVANIA R. CO., SUPRA AT 467-468, AND AUTHORITIES
CITED; THEY DO NOT TRENCH UPON THE WRIT'S CLASSIC AVAILABILITY OR ITS
UTILITY AS A PRIME SAFEGUARD OF FREEDOM.  THERE IS NO HINT IN EITHER
THE AMENDMENT'S WORDING OR IN ITS LEGISLATIVE HISTORY THAT IT HAD ANY
SUCH RESTRICTIVE PURPOSE OR EFFECT.  THE ENTIRE MEASURE WAS ADOPTED IN
FACT, NOT TO REDUCE, BUT TO EXPAND THE WRIT'S AVAILABILITY.  FN23 

IN VIEW OF THIS HISTORY AND ITS EFFECT FOR THE STATUTE'S MEANING AND
PURPOSE, THE CONSIDERATIONS OF POLICY AND CONVENIENCE UPON WHICH THE
COURT RELIES TO BOLSTER ITS VIEW CAN HAVE NO PROPER INFLUENCE TO GIVE
THAT VIEW VALIDITY.  INDEED, IF THE LEGISLATIVE HISTORY WERE LESS CLEAR
THAN IT IS AGAINST THE COURT'S CONCEPTION, A DUE AND HITHERTO
TRADITIONAL REGARD FOR THE WRIT'S HIGH OFFICE SHOULD DICTATE RESOLVING
ANY DOUBT, AS BETWEEN THE POSSIBLE CONSTRUCTIONS, AGAINST A
JURISDICTIONAL LIMITATION SO DESTRUCTIVE OF THE WRIT'S AVAILABILITY AND
ADAPTABILITY TO ALL THE VARYING CONDITIONS AND DEVICES BY WHICH LIBERTY
MAY BE UNLAWFULLY RESTRAINED. 

ESPECIALLY IS THIS TRUE SINCE NO SUCH RIGID RESTRICTION IS NECESSARY
TO PROVIDE ADEQUATE SAFEGUARD AGAINST THE EVILS THE COURT ENVISAGES. 
IT SEEMS TO PROCEED UPON THE ASSUMPTION THAT IF JURISDICTION IN THE
DISTRICT OF COLUMBIA WERE ADMITTED, FEDERAL PRISONERS THOUSANDS OF
MILES AWAY WOULD HAVE AN UNQUALIFIED RIGHT TO INVOKE IT. 

ON THE CONTRARY, IF THE ATTORNEY GENERAL SHOULD NOT WAIVE OBJECTION
TO PROCEEDING IN THE DISTRICT OF COLUMBIA AS HE HAS DONE HERE AND THERE
WERE NO COMPELLING REASON FOR OVERRIDING HIS OBJECTION, SUCH AS THE
ABSENCE OF ANY POSSIBLE REMEDY ELSEWHERE, THE COURTS OF THE DISTRICT
CLEARLY WOULD HAVE DISCRETION TO DECLINE THE EXERCISE OF THEIR
JURISDICTION.  INDEED, IN THE VAST MAJORITY OF SUCH CASES, WHERE REMEDY
WOULD BE AVAILABLE IN A MORE CONVENIENT FORUM, IT WOULD BE THEIR DUTY
TO DO SO AND AN ABUSE OF DISCRETION, SUBJECT TO CORRECTION UPON REVIEW,
FOR THEM TO COMPEL THE PETITIONER'S PRODUCTION IN SUCH AN INCONVENIENT
OR OTHERWISE INAPPROPRIATE FORUM.  SEE BEARD V. BENNETT, 114 F.2D 578,
580-581. 

IN THIS VIEW IT WOULD BE ONLY THE EXCEPTIONAL CASE OF DETENTION
OUTSIDE THE DISTRICT AND PURSUANT TO AUTHORITY INDEPENDENT OF ITS
AFFAIRS, WHICH WOULD REQUIRE OR INDEED PERMIT THE EXERCISE OF
JURISDICTION BY ITS COURTS.  ON THE OTHER HAND, IN THE SITUATIONS WHERE
THE DISTRICT HAS A PECULIAR INTEREST THAT ITS COURTS SHALL HAVE POWER
IN SUCH CASES, NAMELY, THOSE AFFECTING ITS PENAL INSTITUTIONS LOCATED
OUTSIDE ITS BORDERS, THEY WOULD NOT BE DEPRIVED OF JURISDICTION, AS THE
PRESENT DECISION CONSISTENTLY APPLIED WOULD SEEM TO NECESSITATE.  FN24 

THE COURT HAS RESERVED DECISION UPON CASES WHERE THE PLACE OF
CONFINEMENT IS NOT WITHIN THE TERRITORIAL JURISDICTION OF ANY COURT. 
FN25  AND IT HAS SOUGHT TO DISTINGUISH EX PARTE ENDO, SUPRA.  I AGREE
THAT THE RESERVATION AND THE DISTINCTION SHOULD BE MADE.  BUT I THINK
THE FACT THEY HAVE BEEN FOUND NECESSARY GOES FAR TO DESTROY THE
VALIDITY OF THE PRESENT DECISION'S GROUNDING. 

CASES OF THE TYPE RESERVED HAVE ARISEN RECENTLY ON APPLICATION FOR
ORIGINAL WRITS OF HABEAS CORPUS BY PETITIONERS DETAINED BY THE MILITARY
AUTHORITIES IN GERMANY AND JAPAN.  EX PARTE BETZ; EX PARTE DURANT; EX
PARTE WILLS; EX PARTE CUTINO; EX PARTE WALCZAK; EX PARTE MCKINLEY; EX
PARTE MURPHY, 329 U.S. 672.  SOME OF THOSE PETITIONERS WERE CITIZENS OF
THE UNITED STATES; SOME WERE CIVILIANS, OTHERS MEMBERS OF THE ARMED
FORCES.  IN SOME INSTANCES THE DETENTION WAS PURSUANT TO SENTENCES
IMPOSED BY MILITARY TRIBUNALS FOR ALLEGED OFFENSES, DEATH BEING THE
PENALTY IN ONE.  IN OTHER CASES THE PETITIONERS CLAIMED TO BE CONFINED
FOR INDEFINITE PERIODS WITHOUT CHARGE AND WITHOUT TRIAL. 

THE JURISDICTIONAL QUESTIONS RAISED BY THOSE PETITIONS ARE OF
PROFOUND IMPORTANCE.  FN26  AND IF ANY OF THE REASONS ADVANCED FOR
TODAY'S DECISION IS DEEMED CONTROLLING, ALL SUCH QUESTIONS WILL BE
RESOLVED IN THE FUTURE AGAINST SUCH PETITIONERS.  PERHAPS WHEN THOSE
CASES ARISE THE COURT WILL IGNORE THE REASONS RELIED ON TODAY, JUST AS
TODAY IT IGNORES THE REASONING RELIED ON IN EX PARTE ENDO.  FOR IF
ABSENCE OF THE BODY DETAINED FROM THE TERRITORIAL JURISDICTION OF THE
COURT HAVING JURISDICTION OF THE JAILER CREATES A TOTAL AND
IRREMEDIABLE VOID IN THE COURT'S CAPACITY TO ACT, WHAT LAWYERS CALL
JURISDICTION IN THE FUNDAMENTAL SENSE, THEN IT IS HARD TO SEE HOW THAT
GAP CAN BE FILLED BY SUCH EXTRANEOUS CONSIDERATIONS AS WHETHER THERE IS
NO OTHER COURT IN THE PLACE OF DETENTION FROM WHICH REMEDY MIGHT BE HAD
AND WHETHER A RULE OF THIS COURT, RULE 45(1), CAN OVERRIDE A BASIC
JURISDICTIONAL LIMITATION CONGRESS HAS IMPOSED. 

IN ANY EVENT, I CANNOT SUBSCRIBE TO THE VIEW THAT CONGRESS HAS LAID
DOWN A JURISDICTIONAL CRITERION SO CAPRICIOUS IN ITS CONSEQUENCES OR SO
DESTRUCTIVE OF THE WRIT'S HISTORIC NATURE, SCOPE AND AVAILABILITY.  AS
WAS STATED AT THE BEGINNING, THE FULL RAMIFICATIONS OF THE DECISION ARE
DIFFICULT TO FORESEE.  IT IS ONE THING TO LAY DOWN A RULE OF DISCRETION
ADEQUATE TO PREVENT FLOODING THE COURTS OF THE DISTRICT OF COLUMBIA
WITH APPLICATIONS FOR HABEAS CORPUS FROM THE COUNTRY AT LARGE.  IT IS
ENTIRELY ANOTHER TO TIE THEIR HANDS, AND THOSE OF ALL OTHER INFERIOR
FEDERAL COURTS, WITH A STRICT JURISDICTIONAL LIMITATION WHICH CAN ONLY
DEFEAT THE WRIT'S EFFICACY IN MANY CASES WHERE IT MAY BE MOST NEEDED. 

NOT THE LEAST IMPORTANT OF THESE MAY BE INSTANCES ARISING IN THE
FUTURE WHERE PERSONS ARE WRONGFULLY DETAINED IN PLACES UNKNOWN TO THOSE
WHO WOULD APPLY FOR HABEAS CORPUS IN THEIR BEHALF.  WITHOUT KNOWING THE
DISTRICT OF CONFINEMENT, A PETITIONER WOULD BE UNABLE TO SUSTAIN THE
BURDEN OF ESTABLISHING JURISDICTION IN ANY COURT IN THE LAND.  SUCH A
SITUATION MIGHT ARISE FROM MILITARY DETENTION, CF. DUNCAN V.
KOHANAMOKU, 327 U.S. 304; EX PARTE MILLIGAN, 4 WALL.  2; IN THE MATTER
OF SAMUEL STACY, 10 JOHNS.  328; OR AS A RESULT OF MASS EVACUATION OF
GROUPS FROM A GIVEN AREA IN TIME OF EMERGENCY WITH CONSEQUENT
DISRUPTION OF THE MEANS OF KEEPING PERSONNEL RECORDS IN ORDER, CF.
HIRABAYASHI V. UNITED STATES, 320 U.S. 81; EX PARTE ENDO, SUPRA; OR
POSSIBLY, THOUGH IT IS TO BE HOPED NOT OFTEN, EVEN FROM WILFUL
MISCONDUCT BY ARBITRARY EXECUTIVE OFFICIALS OVERREACHING THEIR
CONSTITUTIONAL OR STATUTORY AUTHORITY.  THESE DANGERS MAY SEEM UNREAL
IN THE UNITED STATES.  BUT THE EXPERIENCE OF LESS FORTUNATE COUNTRIES
SHOULD SERVE AS A WARNING AGAINST THE UNWARRANTED CURTAILMENT OF THE
JURISDICTION OF OUR COURTS TO PROTECT THE LIBERTY OF THE INDIVIDUAL BY
MEANS OF THE WRIT OF HABEAS CORPUS. 

ACCORDINGLY, I DISSENT FROM THE CONCLUSION AND JUDGMENT OF THE
COURT.  SINCE I THINK THE DISTRICT COURT HAD JURISDICTION AND SINCE
ALSO THE ATTORNEY GENERAL HAS WAIVED ANY OBJECTION TO ITS EXERCISE IN
THIS CASE, FOR REASONS CERTAINLY NOT INADEQUATE, I AM ALSO OF THE VIEW
THAT THE CASE SHOULD BE DECIDED ON THE MERITS. 

FN1  CF. SUNAL V. LARGE, 332 U.S. 174, DISSENTING OPINIONS AT 184,
187. 

FN2  SEE TEXT INFRA AT NOTE 5. 

FN3  CONGRESS HAS NOT GIVEN THE DISTRICT COURT POWER TO DIRECT
SERVICE OF THE WRIT TO BE MADE OUTSIDE THE LIMITS OF THE STATE IN WHICH
THE COURT SITS, SEE UNITED STATES EX REL. CORSETTI V. COMMANDING
OFFICER OF CAMP UPTON, 3 F.R.D. 360, AND IT IS AT LEAST QUESTIONABLE
WHETHER SERVICE ON THE TURNKEY WOULD CONSTITUTE SERVICE ON THE
CUSTODIAN.  SEE UNITED STATES EX REL. GOODMAN V. ROBERTS, 152 F.2D
841. 

FN4  FURTHER QUESTIONS NECESSARILY ARISE CONCERNING MATTERS OF
PLEADING AND PROOF OF PRESENCE NECESSARY TO ESTABLISH THE
JURISDICTION. 

FN5  IN THE MATTER OF SAMUEL W. JACKSON, 15 MICH. 417, 439-440.  SEE
EX PARTE ENDO, 323 U.S. AT 306.  AT A LATER POINT JUDGE COOLEY'S
OPINION CONTINUED:  "THERE IS NO INHERENT DIFFICULTY IN THE CASE; AND
THE COURT OF CHANCERY, IN THE EXERCISE OF ITS POWER TO COMPEL SPECIFIC
PERFORMANCE, FREQUENTLY EXERTS AN AUTHORITY OVER A SUBJECT MATTER IN A
FOREIGN JURISDICTION SIMILAR TO THAT WHICH IS SOUGHT FOR HERE.  I THINK
THE CASE PRESENTED BY THE PETITION IS ONE IN WHICH WE CAN GIVE RELIEF,
AND THE DECISION IN UNITED STATES V. DAVIS, 5 CRANCH.  C.C. 622, IS IN
POINT, AND WILL WARRANT IT.  THERE ARE NO CONFLICTING DECISIONS.  THE
INCIDENTAL REMARKS WHICH HAVE BEEN MADE IN SOME CASES ABOUT THE REMEDY
APPLYING WHERE THE IMPRISONMENT IS WITHIN THE STATE, SEEM TO ME OF NO
SIGNIFICANCE.  IN NONE OF THOSE CASES WAS ATTENTION DIRECTED TO THIS
PARTICULAR POINT  ..."  P. 441. 

SOME OF THE CASES FOLLOWING THIS VIEW ARE EMERSON V. GUTHNER, 107
COLO. 83; CROWELL V. CROWELL, 190 GA. 501; SHAW V. SHAW, 114 S. CAR. 
300; QUEEN V. BARNARDO, 24 Q.B.D. 283; IN RE MATTHEWS, 12 IR. C.L. 233;
AND SEE CASES CITED IN EX PARTE ENDO, 323 U.S. AT 306.  THE SAME
POSITION IS TAKEN IN CHURCH, HABEAS CORPUS (2D ED.)  SEC.  109. 

IN THE ENDO CASE, ALTHOUGH RESERVING THE PRECISE ISSUE NOW DECIDED,
WE SAID:  "THERE ARE EXPRESSIONS IN SOME OF THE CASES WHICH INDICATE
THAT THE PLACE OF CONFINEMENT MUST BE WITHIN THE COURT'S TERRITORIAL
JURISDICTION IN ORDER TO ENABLE IT TO ISSUE THE WRIT.  SEE (CASES CITED
IN NOTE 16 INFRA).  BUT WE ARE OF THE VIEW THAT THE COURT MAY ACT IF
THERE IS A RESPONDENT WITHIN REACH OF ITS PROCESS WHO HAS CUSTODY OF
THE PETITIONER.  AS JUDGE COOLEY STATED IN IN THE MATTER OF SAMUEL W.
JACKSON, 15 MICH. 417, 439-440:"  THEN FOLLOWED THE MATTER QUOTED IN
THE TEXT ENDING WITH THE WORDS, "THE WHOLE FORCE OF THE WRIT IS SPENT
UPON THE RESPONDENT;" TOGETHER WITH CITATION OF OTHER AUTHORITIES TO
SIMILAR EFFECT.  323 U.S. 283, 306. 

FN6  SEE RESTATEMENT, CONFLICT OF LAWS, SEC. 624 SPECIAL NOTE (TENT. 
DRAFT NO. 5, 1929); SEE ALSO PROPOSED FINAL DRAFT NO. 2, QUESTION
SUGGESTED FOR DISCUSSION, SEC. 624; NOTE, 28 KY. L.J. 462. 

FN7  SEE NOTE 5. 

FN8  THE STATUTE PROVIDES THAT THE "WRIT SHALL BE DIRECTED TO THE
PERSON IN WHOSE CUSTODY THE PARTY IS DETAINED."  REV. STAT. SEC. 755,
28 U.S.C. SEC. 455. 

FN9  SEE CASES CITED IN NOTES 5 AND 17. 

FN10  THE EXECUTIVE PROCLAMATION UNDER WHICH THE ATTORNEY GENERAL WAS
ACTING PROVIDES THAT ALL ALIEN ENEMIES "WHO SHALL BE DEEMED BY THE
ATTORNEY GENERAL TO BE DANGEROUS TO THE PUBLIC PEACE AND SAFETY OF THE
UNITED STATES BECAUSE THEY HAVE ADHERED TO THE AFORESAID ENEMY
GOVERNMENTS OR TO THE PRINCIPLES OF GOVERNMENT THEREOF SHALL BE SUBJECT
UPON THE ORDER OF THE ATTORNEY GENERAL TO REMOVAL FROM THE UNITED
STATES AND MAY BE REQUIRED TO DEPART THEREFROM IN ACCORDANCE WITH SUCH
REGULATIONS AS HE MAY PRESCRIBE."  PROCLAMATION 2655, 10 FED. REG.
8947.  THIS PROCLAMATION WAS ISSUED PURSUANT TO THE AUTHORITY CONFERRED
BY THE ALIEN ENEMY ACT OF 1798, 1 STAT. 577. 

FN11  FURTHERMORE, AS THE SOLICITOR GENERAL POINTS OUT IN HIS BRIEF,
THERE IS "NO REASON WHY THE UNITED STATES CANNOT WAIVE THIS PARTICULAR
OBJECTION SINCE IT HAS THE EFFECT MERELY OF PERMITTING SUIT AGAINST ONE
GOVERNMENT OFFICER RATHER THAN ANOTHER." 

FN12  SEE FED. RULES CIV. PROC., 28 U.S.C. FOLLOWING SEC. 723C, RULE
4(F). 

FN13  UPON THE FACTS THE SITUATION IS ONE IN WHICH THE GOVERNMENT
QUITE PROPERLY DESIRES A SPEEDY DETERMINATION UPON THE MERITS, IN ORDER
TO AVOID THE FURTHER DELAY NECESSARILY INCIDENT TO REACHING THEM BY
FURTHER PROCEEDINGS.  WHETHER FROM THE VIEWPOINT OF ESTABLISHING THE
GOVERNMENT'S POWER TO REMOVE THE PETITIONERS OR OF TERMINATING THE
RESTRAINT UPON THEIR LIBERTIES, EXPEDITION OF THE DETERMINATION IS
HIGHLY DESIRABLE. 

FN14  THE 1925 AMENDMENT TO THE STATUTE PROVIDING THAT "THE ORDER OF
THE CIRCUIT JUDGE SHALL BE ENTERED IN THE RECORDS OF THE DISTRICT COURT
OF THE DISTRICT WHEREIN THE RESTRAINT COMPLAINED OF IS HAD" DOES NOT
LIMIT JURISDICTION TO GRANT THE WRIT.  SEE EX PARTE ENDO, 323 U.S. 283,
307, N. 26.  THE PROVISION IS A MERE RECORDING REQUIREMENT APPLICABLE
IN TERMS ONLY TO CIRCUIT JUDGES ACTING INDIVIDUALLY.  APPROPRIATELY IT
DOES NOT APPLY TO COURTS AS DISTINGUISHED FROM JUDGES BECAUSE COURT
ORDERS WOULD BE RECORDED BY ROUTINE PROCEDURE, WHEREAS AN ORDER ISSUED
BY A JUDGE IN VACATION WOULD REQUIRE SPECIAL TREATMENT.  SINCE THE
APPLICATION IN THIS CASE WAS MADE TO A COURT IN SESSION, THE
REQUIREMENT DOES NOT APPLY HERE.  BUT EVEN IF IT DID APPLY, AND EVEN IF
A RECORDING PROVISION ENACTED IN 1925 COULD BE TAKEN TO RELATE BACK TO
THE AMENDMENT OF 1867 TO GIVE MEANING TO THE WORDS "WITHIN THEIR
RESPECTIVE JURISDICTIONS," THE WORDING "THE DISTRICT WHEREIN THE
RESTRAINT COMPLAINED OF IS HAD" COULD BE TAKEN AS READILY TO MEAN
"WHEREIN THE POWER OF CONTROL IS EXERCISED" AS "WHEREIN THE BODY IS
LOCATED."  CF. THE CASES CITED IN NOTES 5 AND 17. 

FN15  SEE EX PARTE GRAHAM, 4 WASH. C.C. 211, 212.  SEE NOTE 2 OF THE
COURT'S OPINION.  IN THAT CASE, AS IN MOST OF THE CASES CITED BY THE
COURT, THE CUSTODIAN AND THE PRISONER WERE BOTH OUTSIDE THE TERRITORIAL
JURISDICTION OF THE COURT.  SEE NOTES 16, 17 AND 18. 

FN16  EX PARTE GRAHAM, 4 WASH. C.C. 211; IN RE BOLES, 48 F. 75; EX
PARTE GOUYET, 175 F. 230; EX PARTE YEE HICK HO, 33 F.2D 360; UNITED
STATES V. DAY, 50 F.2D 816(IN THIS CASE THE CUSTODIAN DID APPEAR IN
COURT, BUT ONLY SPECIALLY TO CHALLENGE ITS JURISDICTION); JONES V.
BIDDLE, 131 F.2D 853; UNITED STATES V. SCHLOTFELDT, 136 F.2D 935. 

FN17  UNITED STATES V. DAVIS, 5 CRANCH C.C. 622; IN RE BICKLEY, 3
FED. CAS. 332, NO. 1,387; MCGOWAN V. MOODY, 22 APP. D.C. 148; EX PARTE
FONG YIM, 134 F. 938; EX PARTE NG QUONG MING, 135 F. 378; SANDERS V.
ALLEN, 69 APP. D.C. 307, 100 F.2D 717.  SEE TIPPITT V. WOOD, 140 F.2D
689; BURNS V. WELCH, 159 F.2D 29.    FN18  OF THE CASES CITED IN NOTE
17 ONLY MCGOWAN V. MOODY AND IN RE BICKLEY ARE IN ACCORD WITH TODAY'S
DECISION.  AND EVEN THOSE TWO CASES ARE DISTINGUISHABLE.  IN MCGOWAN V.
MOODY THE PRINCIPAL GROUND OF DECISION SEEMS TO HAVE BEEN THAT THE
PRISONER WAS NOT IN THE ACTUAL CUSTODY OF THE SECRETARY OF THE NAVY. 
SEE 22 APP. D.C. AT 163-164.  MOREOVER, THE AUTHORITY OF THAT CASE IS
QUESTIONABLE IN VIEW OF LATER DECISIONS BY THE SAME COURT, SEE NOTE 24
INFRA.  ALTHOUGH IN RE BICKLEY DOES REST ON THE GROUND THAT THE COURT
WAS NOT "COMPETENT TO GIVE THE RELIEF ASKED FOR" AND USES THE TERM
"JURISDICTION," IT IS WELL KNOWN THAT AT THAT TIME THE TERM
"JURISDICTION" WAS OFTEN USED IN THE SENSE OF "VENUE," AND SINCE THE
CUSTODIAN DID NOT WAIVE THE DEFECT IT WAS NOT NECESSARY FOR THE COURT
TO REACH THE PRECISE ISSUE ADJUDICATED TODAY.  IN FACT THE OPINION
INTIMATES THAT THE RESULT WOULD HAVE BEEN DIFFERENT IF THE POINT HAD
BEEN "FREELY CONCEDED."  SEE PP. 333-334. 

FN19  SEE NOTE 5. 

FN20  THE BILL, PRIOR TO ADDITION OF THE PHRASE, READ PERTINENTLY AS
FOLLOWS:  "BE IT ENACTED, &C., THAT THE SEVERAL COURTS OF THE UNITED
STATES AND THE SEVERAL JUSTICES AND JUDGES OF SUCH COURTS, IN ADDITION
TO THE AUTHORITY ALREADY CONFERRED BY LAW, SHALL HAVE POWER TO GRANT
WRITS OF HABEAS CORPUS IN ALL CASES WHERE ANY PERSON MAY BE RESTRAINED
OF HIS OR HER LIBERTY IN VIOLATION OF THE CONSTITUTION OR OF ANY TREATY
OR LAW OF THE UNITED STATES  ...  "  CONG. GLOBE, 39TH CONG., 2D SESS.
730. 

FN21  WHEN THE AMENDMENT "WITHIN THEIR RESPECTIVE JURISDICTIONS" WAS
SUGGESTED, SENATOR JOHNSON COMMENTED ON IT AS FOLLOWS:  "THE AMENDMENT
PROPOSED BY THE HONORABLE CHAIRMAN IS ENTIRELY SATISFACTORY TO ME.  I
SUGGESTED THE NECESSITY OF AN AMENDMENT THE OTHER DAY BECAUSE I KNOW
THAT THE LATE CHIEF JUSTICE OF THE UNITED STATES DECIDED THAT UNDER THE
LAWS AS THEY STAND PROCESS ISSUED BY A JUDGE OF THE SUPREME COURT IN
CASES WHERE THOSE JUDGES HAVE A RIGHT TO ISSUE PROCESS EXTENDS ALL OVER
THE UNION.  THAT I AM SATISFIED MIGHT LEAD TO A PRACTICAL EVIL.  THE
AMENDMENT PROPOSED BY THE HONORABLE CHAIRMAN IS ENTIRELY SATISFACTORY
TO ME AND REMOVES THAT DIFFICULTY."  CONG. GLOBE, 39TH CONG., 2D SESS.
790. 

FN22  THE DISCUSSION OF THE AMENDMENT IN THE SENATE WAS LIMITED TO
THE STATEMENTS BY SENATOR JOHNSON, QUOTED IN PART IN NOTE 21, AND THE
REMARKS OF SENATOR TRUMBULL, WHO INTRODUCED THE AMENDMENT AS A RESULT
OF SENATOR JOHNSON'S STATEMENT.  SEE CONG. GLOBE, 39TH CONG., 2D SESS.
730, 790. 

FN23  THE ACT OF 1867 WAS AN IMPORTANT LIBERALIZING MEASURE IN TWO
RESPECTS.  SUBSTANTIVELY, THE STATUTE AUTHORIZED THE ISSUANCE OF THE
WRIT TO RELIEVE ANY DETENTION IN VIOLATION OF THE CONSTITUTION OR LAWS
OF THE UNITED STATES.  PROCEDURALLY, THE REMEDY WAS EXTENDED TO ALL
PERSONS IN STATE AS WELL AS IN FEDERAL CUSTODY.  SEE NOTE, 61 HARV. L.
REV. 657, 659.  "(NO) INDICATION HAS BEEN FOUND OF INTENT TO NARROW THE
ACT  ...  "  IBID., N. 22. 

FN24  THE DISTRICT OF COLUMBIA REFORMATORY IS LOCATED AT LORTON,
VIRGINIA, AND THE DISTRICT WORKHOUSE IS AT OCCOQUAN, VIRGINIA.  PERSONS
ARE CONFINED IN THESE INSTITUTIONS FOR VIOLATIONS OF THE DISTRICT OF
COLUMBIA CODE.  THE OFFICIAL IN CHARGE OF BOTH INSTITUTIONS IS A
RESIDENT OF THE DISTRICT AND MAINTAINS HIS HEADQUARTERS IN THE
DISTRICT.  FOR OBVIOUS ADMINISTRATIVE REASONS, THE COURT OF APPEALS OF
THE DISTRICT OF COLUMBIA HAS THEREFORE HELD THAT APPLICATIONS FOR
HABEAS CORPUS MAY BE FILED IN COURTS OF THE DISTRICT BY INMATES OF
THOSE INSTITUTIONS EVEN THOUGH THEY ARE CONFINED BEYOND ITS TERRITORIAL
JURISDICTION.  SANDERS V. ALLEN, 69 APP. D.C. 307, 100 F.2D 717.  SEE
BURNS V. WELCH, 159 F.2D 29.  UNDER TODAY'S RULING SUCH PETITIONS MUST
HEREAFTER BE FILED IN THE VIRGINIA FEDERAL COURT TO THE INCONVENIENCE
OF THE PARTIES AND OF THE COURT, WHICH MUST TO A CERTAIN EXTENT APPLY
LAW PECULIAR TO THE DISTRICT OF COLUMBIA. 

IT IS OF INTEREST THAT THE COURT OF APPEALS REACHED THIS RESULT IN
THE FACE OF THE APPARENTLY INCONSISTENT EARLIER HOLDING IN MCGOWAN V.
MOODY, 22 APP. D.C. 148.  THAT CASE HAS BEEN EXPLAINED EITHER ON THE
GROUND THAT EVEN THOUGH THE COURT HAD JURISDICTION IT PROPERLY DECLINED
TO EXERCISE IT BECAUSE RELIEF WAS AVAILABLE ELSEWHERE, SEE SANDERS V.
ALLEN, 69 APP. D.C. 307, 309, 100 F.2D 717, 719, BUT CF. NOTE 25 INFRA,
OR, AT LEAST BY IMPLICATION, ON THE GROUND THAT SECRETARY MOODY WAS NOT
A PROPER PARTY RESPONDENT.  SEE SANDERS V. BENNETT, 80 U.S. APP. D.C.
32, 33, 148 F.2D 19, 20, N. 2.  BOTH OF THESE GROUNDS INDICATE THAT THE
COURT OF APPEALS NO LONGER REGARDS MCGOWAN V. MOODY AS AUTHORITY FOR
THE PROPOSITION FOR WHICH THE COURT CITES IT TODAY. 

FN25  THE LOGICAL INCONSISTENCY OF THIS RESERVATION WITH THE DECISION
IS HIGHLIGHTED BY THE CITATION, APPARENTLY WITH APPROVAL, OF MCGOWAN V.
MOODY, 22 APP. D.C. 148, WHERE THE COURT EXPRESSLY ASSUMED THAT IF IT
HAD NO JURISDICTION, THERE WOULD BE NO TRIBUNAL IN WHICH RELIEF MIGHT
BE HAD.  P. 158.  IN THAT CASE THE PETITIONER SOUGHT RELIEF AGAINST THE
SECRETARY OF THE NAVY IN BEHALF OF A MARINE IMPRISONED ON GUAM. 

FN26  SEE WOLFSON, AMERICANS ABROAD AND HABEAS CORPUS, 9 F. BAR J.
142. 
..END :












COMSTOCK V. GROUP OF INVESTORS, 335 U.S. 211 


ARGUED MARCH 9-10, 1948.  - DECIDED JUNE 21, 1948.  - 163 F.2D 350,
AFFIRMED - ID. 358, CERTIORARI DISMISSED. 


AFTER CERTAIN RAILROADS HAD BEEN IN REORGANIZATION UNDER SEC. 77 OF
THE BANKRUPTCY ACT FOR MORE THAN TEN YEARS AND A SECOND PLAN OF
REORGANIZATION HAD BEEN APPROVED BY THE INTERSTATE COMMERCE COMMISSION
AND WAS BEFORE A FEDERAL DISTRICT COURT FOR APPROVAL, PETITIONER, WHO
HAD RECENTLY BOUGHT SECURITIES OF ONE OF THE SUBSIDIARY RAILROADS AT
TEN CENTS ON THE DOLLAR, OBJECTED TO ALLOWANCE OF A PREVIOUSLY
UNCHALLENGED LARGE CLAIM OF THE PARENT RAILROAD AGAINST THAT
SUBSIDIARY.  HE CONTENDED THAT THE PARENT HAD DOMINATED AND CONTROLLED
THE SUBSIDIARY AND HAD MISMANAGED ITS AFFAIRS TO THE DETRIMENT OF THE
SUBSIDIARY AND ITS OTHER CREDITORS AND THAT IT WOULD BE INEQUITABLE TO
ALLOW THE CLAIM.  AFTER FULL HEARING, THE DISTRICT COURT FOUND THAT THE
PARENT HAD DOMINATED AND CONTROLLED THE SUBSIDIARY BUT THAT ITS
ADMINISTRATION OF THE SUBSIDIARY'S AFFAIRS HAD BEEN IN GOOD FAITH AND
TO THE ADVANTAGE OF THE SUBSIDIARY AND ITS OTHER CREDITORS, THAT THE
CLAIM WAS VALID AND SHOULD BE ALLOWED, AND THAT THE REORGANIZATION PLAN
WAS FAIR AND EQUITABLE AND IN ACCORDANCE WITH LAW.  IT ACCORDINGLY
OVERRULED PETITIONER'S OBJECTIONS.  THE CIRCUIT COURT OF APPEALS
CONCURRED FULLY IN THE DISTRICT COURT'S FINDINGS OF FACT AND AFFIRMED
ITS RULING.  HELD: 

1.  IN THE ABSENCE OF A VERY EXCEPTIONAL SHOWING OF ERROR, THE
CONCURRENT FINDINGS OF FACT OF THE TWO COURTS BELOW ARE FINAL IN THIS
COURT.  PP. 213-214. 

2.  IN VIEW OF THE AMOUNT AND POSITION OF THE CLAIM INVOLVED AND THE
FACT THAT THE SUBJECT MATTER OF THE OBJECTIONS WAS SUCH THAT IT WENT
BEYOND PETITIONER'S INDIVIDUAL INTERESTS AND AFFECTED THE FAIRNESS AND
EQUITY OF THE PLAN, THE DISTRICT COURT DID NOT ERR IN ADJUDGING THE
OBJECTIONS ON THEIR MERITS - EVEN THOUGH PETITIONER MAY HAVE BEEN
BARRED BY LACHES AND OTHER EQUITABLE CONSIDERATIONS FROM ASSERTING A
CAUSE OF ACTION IN HIS OWN BEHALF.  PP. 226-227. 

3.  IN VIEW OF THE FUNCTIONS CAST UPON THE BANKRUPTCY COURT IN SUCH
CASES, IT MAY, IN ITS DISCRETION, CONSIDER OBJECTIONS ON THEIR MERITS,
EVEN THOUGH THEY HAVE NOT BEEN PRESENTED TO THE COMMISSION.  P. 227. 

4.  THE COURT SHOULD BE DILIGENT TO PROTECT ITSELF AND THE PUBLIC
FROM APPROVAL OF UNFAIR PLANS, EVEN BY DEFAULT, AND MAY TAKE FOR ITS
OWN USE EVIDENCE NO PARTY WOULD HAVE A RIGHT TO FORCE UPON IT.  PP. 227
228. 

5.  EVEN THOUGH THE PARENT HAD DOMINATED AND CONTROLLED THE
SUBSIDIARY, THE DISTRICT COURT'S ALLOWANCE OF THE CLAIM WAS NOT AN
ERROR OF LAW - IN VIEW OF ITS FINDING THAT THE PARENT'S ADMINISTRATION
OF THE SUBSIDIARY'S AFFAIRS WAS IN GOOD FAITH AND WAS BENEFICIAL AND
ADVANTAGEOUS TO THE SUBSIDIARY AND ITS OTHER CREDITORS.  TAYLOR V.
STANDARD GAS & ELECTRIC CO., 306 U.S. 307, DISTINGUISHED.  PP. 228
231. 

6.  THE CLAIM WAS NOT INVALIDATED OR BARRED BY THE FACT THAT, UNDER
CONTROL OF THE PARENT, DIVIDENDS WERE PAID BY THE SUBSIDIARY AT A TIME
WHEN IT WAS BORROWING MONEY REPRESENTED BY THE CLAIM - IN VIEW OF THE
FINDING BELOW THAT THE DIVIDENDS WERE PAID OUT OF CURRENT EARNINGS OR
SURPLUS, AND NOT IN BAD FAITH OR IN VIOLATION OF LAW OR CONTRACT.  PP.
229-230. 

COMSTOCK V. GROUP OF INSTITUTIONAL INVESTORS ET AL. 

NO. 451.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT* . 

IN A RAILROAD REORGANIZATION PROCEEDING UNDER SEC. 77 OF CO. V. GROUP
OF INSTITUTIONAL INVESTORS ET AL.; NO. 453, THOMPSON, TRUSTEE, V. GROUP
OF INSTITUTIONAL INVESTORS ET AL.; AND NO. 454, COMSTOCK V. THOMPSON,
TRUSTEE, ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

IN A RAILROAD REORGANIZATION PROCEEDING UNDER SEC. 77 OF THE
BANKRUPTCY ACT, THE DISTRICT COURT OVERRULED CERTAIN OBJECTIONS TO A
PLAN OF REORGANIZATION.  64 F.SUPP.  64.  IN NO. 451 THE CIRCUIT COURT
OF APPEALS AFFIRMED.  163 F.2D 350.  IN NOS. 452, 453, 454 THE APPEALS
WERE DISMISSED.  163 F.2D 358.  THIS COURT GRANTED CERTIORARI.  332
U.S. 850.  NO. 451 AFFIRMED; NOS. 452, 453, 454 CERTIORARI DISMISSED,
P. 231. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

SINCE 1933 THE MISSOURI PACIFIC, THE NEW ORLEANS, TEXAS AND MEXICO
RAILWAY CO. AND A NUMBER OF AFFILIATED RAILROAD CORPORATIONS HAVE BEEN
IN REORGANIZATION UNDER THE BANKRUPTCY ACT, 11 U.S.C. SEC. 205.  A
SECOND PLAN OF REORGANIZATION, APPROVED BY THE INTERSTATE COMMERCE
COMMISSION, WAS BEFORE THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
MISSOURI.  COMSTOCK THEN, IN 1944, MADE OBJECTION TO ALLOWANCE OF A
CLAIM OF APPROXIMATELY 10 MILLION DOLLARS BY THE MISSOURI PACIFIC, ONE
DEBTOR CORPORATION, AGAINST ANOTHER, THE NEW ORLEANS, WHICH, DURING THE
10 YEARS OF PROCEEDINGS, HAD BEEN UNCHALLENGED.  THE ISSUES RAISED BY
HIS OBJECTION WERE SEVERED FROM OTHER PROBLEMS OF REORGANIZATION WHICH
DO NOT CONCERN US HERE.  AFTER FULL HEARING THE DISTRICT COURT MADE
FINDINGS AND WROTE AN OPINION, IN RE MISSOURI PACIFIC R. CO., 64
F.SUPP.  64, OVERRULING HIS OBJECTIONS.  THE CIRCUIT COURT OF APPEALS
FOR THE EIGHTH CIRCUIT AFFIRMED.  COMSTOCK V. GROUP OF INSTITUTIONAL
INVESTORS, 163 F.2D 350. 

THE ISSUES OF FACT, CONTESTED IN A LONG HEARING, ARE NOT BEFORE US
FOR REVIEW.  PETITIONER ASSURED US, IN SUPPORT OF THE PETITION FOR
CERTIORARI HERE, THAT "THERE IS NO FACTUAL CONTROVERSY BEFORE THIS
COURT" AND "WE ASSUME THE FINDINGS OF THE DISTRICT COURT.  OUR
CHALLENGE IS DIRECTED ONLY TO THE LEGAL IMPORT OF THESE UNCHALLENGED
FACTS." 

MUCH OF PETITIONER'S ARGUMENT SEEMS TO DEPART FROM THESE ASSUMPTIONS
AND TO INVITE US TO REACH CONCLUSIONS FROM THE VOLUMINOUS RECORD IN THE
CASE, CONTRARY TO THOSE REACHED BY THE TWO COURTS BELOW.  THIS WE
CANNOT DO.  A SEASONED AND WISE RULE OF THIS COURT MAKES CONCURRENT
FINDINGS OF TWO COURTS BELOW FINAL HERE IN THE ABSENCE OF VERY
EXCEPTIONAL SHOWING OF ERROR.  STUART V. HAYDEN, 169 U.S. 1; BRAINARD
V. BUCK, 184 U.S. 99; FIRST NATIONAL BANK V. LITTLEFIELD, 226 U.S. 110;
BAKER V. SCHOFIELD, 243 U.S. 114; SECOND RUSSIAN INSURANCE CO. V.
MILLER, 268 U.S. 552; TEXAS & N.O.R. CO. V. BROTHERHOOD OF CLERKS, 281
U.S. 548; PAGE V. ARKANSAS NATURAL GAS CORP., 286 U.S. 269; PICK MFG.
CO. V. GENERAL MOTORS CORP., 299 U.S. 3; VIRGINIAN R. CO. V. SYSTEM
FEDERATION, 300 U.S. 515; UNITED STATES V. O'DONNELL, 303 U.S. 501;
ANDERSON V. ABBOTT, 321 U.S. 349; ALLEN V. TRUST CO., 326 U.S. 630;
UNITED STATES V. DICKINSON, 331 U.S. 745.  NO SUCH ERROR IS CLAIMED BY
PETITIONER. 

SINCE WE ARE CONCLUDED BY SUCH CONCURRENT FINDINGS, WE CAN DO NO
BETTER THAN TO ADOPT THE STATEMENT OF FACTS MADE IN THE OPINION OF THE
COURT OF APPEALS, ON THE BASIS OF WHICH PETITIONER'S PROPOSITIONS OF
LAW ARE PREDICATED AND MUST BE DECIDED.  THE ESSENTIAL FACTS SO RECITED
ARE: 

"IT APPEARS THAT THE MISSOURI PACIFIC ACQUIRED THE CONTROLLING
INTEREST IN THE CAPITAL STOCK OF THE NEW ORLEANS AT THE END OF 1924 AND
AT TIMES RELEVANT HERE OWNED FROM 58 TO 93 PERCENT OF THE TOTAL
$15,000,000 PAR VALUE OF SUCH STOCK, AND FROM JANUARY 1925, UNTIL
SIMULTANEOUS COMMENCEMENT OF REORGANIZATION PROCEEDINGS IN BANKRUPTCY
OF BOTH CORPORATIONS IN 1933, IT MANAGED THE AFFAIRS OF THE NEW ORLEANS
THROUGH MISSOURI PACIFIC OFFICERS WHO WERE GIVEN CORRESPONDING
POSITIONS IN THE NEW ORLEANS CORPORATION.  AN EXPANSION PROGRAM FOR
BOTH COMPANIES WAS CARRIED ON AND THROUGHOUT THE COURSE OF OPERATIONS
THE MISSOURI PACIFIC MADE ADVANCEMENTS FOR IMPROVEMENTS AND BETTERMENTS
TO THE NEW ORLEANS.  SOME WERE REPAID, BUT IN FEBRUARY 1933, THE NEW
ORLEANS FILED ITS APPLICATION WITH THE INTERSTATE COMMERCE COMMISSION
UNDER SECTION 20A OF THE TRANSPORTATION ACT (49 U.S.C.A. SEC. 20A (2)),
SHOWING THAT IT WAS INDEBTED TO THE MISSOURI PACIFIC FOR AN
ACCUMULATION OF SUCH ADVANCES OVER A PERIOD OF YEARS REMAINING UNPAID
IN THE SUM OF $10,355,226.78, AND THAT IT HAD BEEN REQUESTED BY THE
MISSOURI PACIFIC TO ISSUE DEMAND NOTES THEREFOR IN THE AMOUNT OF
$9,955,226.78 TO THE MISSOURI PACIFIC.  IT HAD PARTIALLY COMPLIED BY
ISSUING ONE SUCH NOTE FOR $400,000.00, AND ONE FOR $2,498,500, AND
AFTER HEARING THE COMMISSION MADE ITS FINDING AS REQUIRED BY THE
STATUTE,  FN1  49 U.S.C.A. SEC. 20A (2), AND AUTHORIZED NEW ORLEANS TO
ISSUE TO THE MISSOURI PACIFIC A NOTE FOR THE REMAINING $7,456,726.78. 
SO THAT AT THE TIME OF THE BANKRUPTCY OF THE NEW ORLEANS ON THE SAME
DATE AS THAT OF THE MISSOURI PACIFIC THE NOTES OF THE NEW ORLEANS TO
THE MISSOURI PACIFIC IN THE SUM OF $10,355,226.78 WERE OUTSTANDING AND
UNPAID.  UNDER AUTHORIZATION OF THE INTERSTATE COMMERCE COMMISSION,
GRANTED AFTER HEARING, THE MISSOURI PACIFIC HAD PLEDGED TWO OF THE
NOTES AGGREGATING $9,955,226.78 AS SECURITY FOR LOANS MADE TO IT BY THE
RECONSTRUCTION FINANCE CORPORATION.  AN ADDITIONAL PLEDGE WAS MADE TO
RAILROAD FINANCE CORPORATION. 

"AFTER APPOINTMENT OF THE TRUSTEES FOR THE RAILROADS AND ON AUGUST
29, 1938, AN OFFICER OF THE MISSOURI PACIFIC FILED CLAIM FOR THAT
COMPANY AGAINST THE NEW ORLEANS FOR THE AMOUNT OF THE NOTES, PLUS AN
ITEM OF ADVANCEMENT OF $210,000.00, AGGREGATING THE AMOUNT OF
$10,565,226.78, DESCRIBING THE CONSIDERATION AS 'CASH ADVANCES FOR
OPERATION, INTEREST PAYMENTS, ETC., AT VARIOUS TIMES FROM MARCH 1929 TO
FEBRUARY 1933, BOTH INCLUSIVE.'  THE ITEMS WHICH MADE UP THE TOTAL
$10,565,226.78 WERE CLEARLY SPECIFIED AND EVIDENCE OF THE VALIDITY OF
THE DEBT AS CONSIDERATION FOR THE NOTES WAS ADDUCED BEFORE THE
COMMISSION AT AN EARLY STAGE OF THESE SECTION 77 PROCEEDINGS, AND THE
OBLIGATION WAS DEEMED TO BE VALID AND AHEAD OF NEW ORLEANS' STOCKHOLDER
INTEREST IN ALL OF THE ACCOUNTINGS, COMPUTATIONS AND ADJUSTMENTS
RESULTING IN THE PLAN OF REORGANIZATION DETERMINED BY THE COMMISSION
AND APPROVED BY THE COURT IN 1940.  IT HAS ALSO BEEN SO CONSIDERED BY
THE COMMISSION IN THE PLAN OF REORGANIZATION BEFORE THE COURT AT THE
TIME OF THE HEARING AND ORDER NOW APPEALED FROM. 

"IT APPEARS THAT IN 1926 THE MISSOURI PACIFIC ISSUED AND CAUSED TO BE
SOLD TO THE PUBLIC ITS 5 1/4% SECURED SERIAL BONDS IN THE AMOUNT OF
$13,156,000, SECURED BY THE PLEDGE OF $1000.00 PAR VALUE OF NEW ORLEANS
CAPITAL STOCK FOR EACH $1000.00 PRINCIPAL AMOUNT OF OUTSTANDING BONDS,
SO THAT THE OFFICERS WHO WERE PUT IN CHARGE OF THE AFFAIRS OF BOTH
CORPORATIONS CAME UNDER FIDUCIARY OBLIGATION TO THE CREDITORS AND THE
STOCKHOLDERS OF EACH COMPANY TO HANDLE HONESTLY THE AFFAIRS OF EACH. 

"COMSTOCK OWNS SOME OF SAID 5 1/4% SECURED SERIAL BONDS SO SECURED BY
THE PLEDGE OF THE NEW ORLEANS CAPITAL STOCK, AND BY VIRTUE OF HIS
OWNERSHIP OF SAID BONDS HE HAS AN INTEREST AS A CREDITOR OF THE
MISSOURI PACIFIC IN THE PAYMENT OF HIS BONDS AND THE INTEREST THEREON,
AND ALSO AN INTEREST IN THE CAPITAL STOCK OF THE NEW ORLEANS PLEDGED TO
SECURE THE BONDS.  ON NOVEMBER 22, 1944, HE FILED HIS OBJECTIONS TO THE
PLAN OF REORGANIZATION AND PLEA FOR EQUITABLE TREATMENT ON THE BASIS OF
THOSE INTERESTS.  CERTAIN OF HIS OBJECTIONS CONTAINED CHARGES OF
MISMANAGEMENT OF THE MISSOURI PACIFIC TO HIS DETRIMENT AS A BONDHOLDING
CREDITOR OF THAT CORPORATION, BUT THE SEPARATELY NUMBERED OBJECTIONS
HERE INVOLVED RELATE TO WRONGS WHICH HE ALLEGES WERE DONE BY THE
MISSOURI PACIFIC TO THE NEW ORLEANS TO THE DETRIMENT OF HIS INTEREST IN
THE PLEDGED STOCK OF THAT COMPANY. 

"BY HIS OBJECTIONS 'NUMBERED 19 AND RELATED OBJECTIONS,' COMSTOCK
CHARGED THAT DURING THE PERIOD WHEN THE AFFAIRS OF THE NEW ORLEANS WERE
CONTROLLED BY ITS MAJORITY STOCKHOLDER THE MISSOURI PACIFIC, BETWEEN
THE END OF 1924 AND THE BANKRUPTCY IN 1933, THE MISSOURI PACIFIC
MANAGEMENT CAUSED THE NEW ORLEANS TO PAY DIVIDENDS ILLEGALLY OUT OF
CAPITAL AND TO IMPROVIDENTLY DECLARE AND PAY DIVIDENDS UNJUSTIFIED BY
THE BUSINESS AND CONDITION OF THE NEW ORLEANS; IMPROPERLY LOANED MONEY
TO IT FOR THE PURPOSE OF ENABLING IT TO PAY DIVIDENDS; INVOLVED IT (THE
NEW ORLEANS) IN EXPANSION AND IMPROPERLY MADE ADVANCEMENTS TO IT AND
CAUSED IT TO ASSUME INDEBTEDNESS GROWING OUT OF EXPANSION; CAUSED IT TO
BE OPERATED WITH UNFAIR ADVANTAGE TO THE MISSOURI PACIFIC AND LOSS TO
ITSELF, AND GENERALLY MISMANAGED IT AND COMMITTED SPOLIATION AND WASTE
OF ITS PROPERTY AND INTERESTS TO THE FINANCIAL DETRIMENT OF THE NEW
ORLEANS AND FOR THE BENEFIT OF THE MISSOURI PACIFIC.  THERE IS ALSO A
CHARGE THAT THE TRUSTEE FOR THE NEW ORLEANS, WHO IS ALSO TRUSTEE FOR
THE MISSOURI PACIFIC, FAILED TO PERFORM HIS DUTIES AS TRUSTEE FOR THE
NEW ORLEANS, TO THE DETRIMENT OF NEW ORLEANS STOCK INTEREST.  ALTHOUGH
AN EXHIBIT 'A' ATTACHED TO THE OBJECTIONS ASSUMED TO SET FORTH DETAILS,
THE CHARGES REMAINED SWEEPING AND GENERAL IN FORM WITH FEW EXCEPTIONS. 
FN2 

"THE OBJECTOR PRAYED THAT THE MISSOURI PACIFIC CLAIM FOR $10,565,227
AND INTEREST AGAINST THE NEW ORLEANS BE DISALLOWED; THAT IT BE
DETERMINED THAT THE NEW ORLEANS WAS NOT INDEBTED TO THE MISSOURI
PACIFIC, AND IN THE ALTERNATIVE, THAT ALL CLAIMS OF THE MISSOURI
PACIFIC AGAINST THE NEW ORLEANS BE SUBORDINATED IN THE REORGANIZATION
TO THE NEW ORLEANS CAPITAL STOCK INTEREST. 

"THE ALLEGATIONS OF BREACHES OF OBLIGATIONS ON THE PART OF THE
MISSOURI PACIFIC WERE TRAVERSED IN PLEADINGS OF OTHER PARTIES IN
INTEREST.  THE MAIN BURDEN OF PRODUCING WITNESSES AND EVIDENCE TO
JUSTIFY THE HANDLING OF THE AFFAIRS OF THE NEW ORLEANS BY THE MISSOURI
PACIFIC DURING THE PERIOD OF MISSOURI PACIFIC MANAGEMENT AND TO PROVE
THE $10,565,226.78 INDEBTEDNESS OF THE NEW ORLEANS TO THE MISSOURI
PACIFIC WAS CARRIED AT THE TRIAL BY THE GROUP OF INSTITUTIONAL
INVESTORS HOLDING FIRST AND REFUNDING MORTGAGE BONDS OF MISSOURI
PACIFIC RAILROAD COMPANY AND THE PROTECTIVE COMMITTEE FOR THE HOLDERS
OF GENERAL MORTGAGE BONDS OF MISSOURI PACIFIC RAILROAD COMPANY.  THEY
RECOGNIZED FULLY THE FIDUCIARY NATURE OF THE OBLIGATION WHICH LAW AND
EQUITY ATTRIBUTED TO THE MISSOURI PACIFIC BY REASON OF ITS PLEDGE OF
THE CAPITAL STOCK OF THE NEW ORLEANS TO SECURE THE 5 1/4% SERIAL BONDS
WHILE THE NEW ORLEANS WAS UNDER ITS MANAGEMENT AS MAJORITY STOCKHOLDER,
AND THAT BY THE TERMS OF THE PLEDGE THE MISSOURI PACIFIC WAS ENTITLED
TO RECEIVE ITSELF ONLY THE DIVIDENDS (LAWFULLY AND PROPERLY DECLARED)
OF THE NEW ORLEANS STOCK AND WAS REQUIRED AS TO THE CORPUS OF SAID
STOCK TO HONESTLY MANAGE THE CORPORATE AFFAIRS AND TO EXERCISE HONEST
JUDGMENT AND GOOD FAITH TO PRESERVE THE STOCK INTEREST INVIOLATE. 

"COMSTOCK DID NOT QUESTION OR DENY THAT THE NEW ORLEANS HAD EXECUTED
ITS NEGOTIABLE PROMISSORY NOTES TO THE MISSOURI PACIFIC WHICH WERE
OUTSTANDING AT THE TIME OF THE TRIAL DRAWING INTEREST, AND CONCEDED
THAT THE RECONSTRUCTION FINANCE CORPORATION AS AN INNOCENT HOLDER
THEREOF IN PLEDGE COULD HOLD THE NEW ORLEANS FOR THEIR FACE AMOUNT AND
INTEREST, BUT HIS CONTENTION WAS THAT BY REASON OF ITS WRONG-DOINGS THE
MISSOURI PACIFIC EITHER HAD NO VALID CLAIM OR THAT SUCH CLAIM AS IT HAD
SHOULD BE SUBORDINATED TO THE CAPITAL STOCK INTEREST.  HE DID NOT
ASSERT OR TENDER EVIDENCE TO SHOW THAT ANY SPECIFIED INDIVIDUALS
WORKING FOR THE NEW ORLEANS OR THE MISSOURI PACIFIC, OR BOTH COMPANIES,
HAD MISAPPROPRIATED OR WRONGFULLY DIVERTED TO THEIR OWN USE ANY OF THE
ASSETS OR BUSINESS OF THE NEW ORLEANS TO THE DETRIMENT OF
STOCKHOLDERS.  HE TENDERED NO EVIDENCE TO SHOW THAT THE PLAN OF
MISSOURI PACIFIC SYSTEM EXPANSION, INCLUDING EXPANSION AND IMPROVEMENT
OF THE NEW ORLEANS, AND FOR THE FINANCING THEREOF, ADOPTED AND CARRIED
THROUGH BY THE MISSOURI PACIFIC, WAS IN ITSELF FRAUDULENT OR RECKLESS
AND IMPROVIDENT.  AS TO THE NEW ORLEANS, THE PLAN CONTEMPLATED THAT THE
MISSOURI PACIFIC WOULD ADVANCE MONEY TO THE NEW ORLEANS FOR BETTERMENTS
AND ADDITIONS ON SHORT TIME LOANS, AND THAT AT INTERVALS WHEN THE
INDEBTEDNESS BECAME OF SUFFICIENT SIZE BOND ISSUES WOULD BE SOLD TO
REFUND IT.  THE WORST OF THE DEPRESSION CAME COINCIDENTALLY WITH THE
TIME WHEN SUCH REFUNDING WAS EXPECTED TO BE MADE AND MADE THE REFUNDING
IMPOSSIBLE. 

"FROM TESTIMONY FRANKLY GIVEN BY HIMSELF, AND ON THE FACE OF THE
RECORD, IT CLEARLY APPEARS AS TO THE CASE COMSTOCK PRESENTED TO THE
COURT ON THE OBJECTIONS HEREIN INVOLVED THAT AFTER THE REPORT OF THE
SENATE SUBCOMMITTEE WHICH CRITICIZED THE MISSOURI PACIFIC MANAGEMENT OF
THE NEW ORLEANS, AND IN 1940, COMSTOCK BOUGHT A FEW OF THE 5 1/4%
SERIAL BONDS AT ABOUT 10 CENTS ON THE DOLLAR AND THEN EMPLOYED AN
ACCOUNTANT TO MAKE STUDIES OF THE ACCOUNTS, RECORDS AND REPORTS OF
MISSOURI PACIFIC MANAGEMENT OF THE NEW ORLEANS AND BASED HIS CHARGES ON
THE ACCOUNTANT'S STUDIES.  HE TENDERED NO EXTRANEOUS OR NEWLY
DISCOVERED EVIDENCE.  AS THE PERIOD OF MISSOURI PACIFIC ALLEGED
MISMANAGEMENT OF THE NEW ORLEANS (1925 TO 1933) HAD EXPIRED MANY YEARS
BEFORE COMSTOCK ACQUIRED HIS INTEREST IN NEW ORLEANS STOCK, A COURT
WOULD NOT ORDINARILY HAVE FELT OBLIGED AT HIS INSTANCE TO TRY THE
MERITS OF CHARGES OF MISMANAGEMENT COMMITTED IN LONG PAST YEARS AND
CLAIMED TO BE PROVABLE BY CONTEMPORANEOUS RECORDS WHICH WERE AT ALL
TIMES ACCESSIBLE.  IT WOULD NOT SANCTION SUCH BUYING INTO A LAWSUIT. 
"BUT HERE THE PLAN FOR MISSOURI PACIFIC REORGANIZATION WAS BEFORE THE
COURT TO BE APPROVED OR DISAPPROVED, ACCORDING TO WHETHER IT WAS OR WAS
NOT FAIR AND EQUITABLE.  THE PROPOSED PLAN INCLUDED AS ONE OF ITS
ESSENTIAL POSTULATES THAT THE NEW ORLEANS WAS INDEBTED TO THE MISSOURI
PACIFIC IN A SUM WHICH WITH ACCUMULATED INTEREST AMOUNTED TO AROUND
EIGHTEEN MILLION DOLLARS.  NO JUDICIAL DETERMINATION UPON THE VALIDITY
OF THE DEBT HAD EVER BEEN MADE IN ANY ADVERSARY PROCEEDINGS THROUGHOUT
THE THIRTEEN YEAR COURSE OF THE SECTION 77 PROCEEDINGS AND BONDS LIKE
COMSTOCK'S ARE OUTSTANDING IN MANY HANDS AGGREGATING SOME $13,500,000. 
ALTHOUGH THE COURT WAS OF OPINION THAT NOT ONLY COMSTOCK BUT ALL OTHER
OWNERS OF THE MISSOURI PACIFIC 5 1/4% SERIAL BONDS SECURED BY NEW
ORLEANS STOCK WHO HAD AT ALL TIMES TRUSTEE REPRESENTATION AND IN GREAT
PART REPRESENTATION BY COUNSEL, HAD BEEN GUILTY OF LACHES IN FAILING
FOR SO MANY YEARS TO ASSERT AND PRESENT PROOF AND TRY OUT BEFORE THE
COMMISSION AND THE COURT THE ALLEGED INVALIDITY OF THE DEBT ALMOST
ENTIRELY EVIDENCED BY THE NOTES,  FN3  IT CONCLUDED THAT JUDICIAL
ADJUDICATION SHOULD BE MADE AS TO THE DEBT AND THAT THE COURT SHOULD,
AND THEREFORE IT DID, HEAR THE EVIDENCE COVERING THE WHOLE PERIOD OF
MANAGEMENT OF THE NEW ORLEANS BY THE MISSOURI PACIFIC, AND IT TRIED OUT
THE WHOLE CASE AND ALL THE CHARGES PRESENTED BY COMSTOCK ON THE
MERITS. 

"THE EXPERT ACCOUNTANT CALLED BY COMSTOCK PRODUCED A LARGE NUMBER OF
EXHIBITS WHICH HE HAD PREPARED FROM THE BOOKS, RECORDS AND REPORTS OF
THE INDIVIDUAL COMPANIES AND EXPLAINED IN CONNECTION WITH THEM THE
INFERENCES HE HAD DRAWN FROM HIS STUDIES AND EXPRESSED HIS OPINIONS
TENDING TO SUPPORT THE COMSTOCK CHARGES.  HE CENTERED HIS ATTACK
LARGELY ON THAT PART OF THE ACCOUNTING SYSTEM OF THE RAILROADS THROUGH
WHICH THE NEW ORLEANS AND ITS FOURTEEN SUBSIDIARY RAILROADS HAD BEEN
TREATED AS A UNIT FOR FINANCING PURPOSES AND THE FINANCIAL CONDITION
INDICATED BY CONSOLIDATED BALANCE SHEETS.  BY DISREGARDING THE SYSTEM
CHARACTER OF ALL THE GULF COAST LINES HELD UNDER NEW ORLEANS OWNERSHIP
HE INFERRED A MUCH LESS FAVORABLE FINANCIAL POSITION FOR THE NEW
ORLEANS THAN WAS SHOWN BY ITS CONSOLIDATED BALANCE SHEETS.  HE HAD NO
PERSONAL KNOWLEDGE OF THE RAILROAD OPERATIONS OR TRANSACTIONS COVERED
BY HIS TESTIMONY. 

"THE GROUP OF INSTITUTIONAL INVESTORS HOLDING FIRST AND REFUNDING
MORTGAGE BONDS OF MISSOURI PACIFIC AND THE PROTECTIVE COMMITTEE FOR THE
HOLDERS OF GENERAL MORTGAGE BONDS OF MISSOURI PACIFIC TO SUSTAIN THE
BURDEN OF MISSOURI PACIFIC DEFENSE CALLED AS THEIR WITNESSES ON THE
TRIAL THE RAILROAD MEN WHO HAD ENGAGED, EACH IN HIS OWN DEPARTMENT, IN
ALL OF THE TRANSACTIONS AND RAILROAD OPERATIONS AND THE RECORDS MADE
THEREOF THROUGHOUT THE PERIOD INVOLVED, AND THEY TESTIFIED OF AND
CONCERNING MATTERS WITH WHICH THEY WERE INTIMATELY FAMILIAR.  ALSO MR.
WILLIAM WYER, WHO AFTER HIS GRADUATION FROM YALE AND MASSACHUSETTS
INSTITUTE OF TECHNOLOGY SERVED IN RAILROAD CONSTRUCTION AND OPERATION
FOR THE GOVERNMENT DURING WORLD WAR I, AND IN U.S. RAILROAD
ADMINISTRATION DURING FEDERAL CONTROL, AND AFTERWARDS IN VARIOUS
POSITIONS IN THE DIVISION OF OPERATIONS, DIVISION OF ACCOUNTS AND
ASSISTANT TO THE COMPTROLLER.  FROM 1920 TO 1927 HE OCCUPIED IMPORTANT
POSITIONS WITH THE SOUTHERN RAILROAD COMPANY AND THE DENVER RIO GRANDE
AND WESTERN, THE LATTER BEING 'FIFTY PERCENT.  OWNED BY THE MISSOURI
PACIFIC SO IT WAS CONSIDERED A PART OF THE MISSOURI PACIFIC SYSTEM.' 
IN FEBRUARY, 1929, HE BECAME ASSISTANT TO THE CHAIRMAN OF THE BOARD OF
DIRECTORS OF THE MISSOURI PACIFIC WHO WAS ALSO CHAIRMAN OF THE BOARD OF
THE NEW ORLEANS, AND LATER IN THE YEAR HE BECAME SECRETARY AND
TREASURER OF THE MISSOURI PACIFIC AND AN OFFICER ON ALL THE
SUBSIDIARIES, EXCEPT AS TO THE TEXAS AND PACIFIC HE WAS SUCH OFFICERS
FOR ONLY SIX YEARS.  HE HANDLED A GREAT MANY OF THE FINANCIAL MATTERS
INVOLVING THE MISSOURI PACIFIC AND THE NEW ORLEANS UNDER THE
SUPERVISION OF THE CHAIRMAN OF THE BOARD OF THE MISSOURI PACIFIC.  IN
1933 HE STARTED STUDIES WHICH HAVE PROVIDED SUBSTANTIALLY ALL OF THE
STUDIES UPON WHICH THE VARIOUS PLANS OF REORGANIZATION HAVE BEEN
BASED.  HE WAS AT THE TIME OF TESTIFYING THE CHIEF EXECUTIVE OFFICER OF
THE CENTRAL RAILROAD OF NEW JERSEY.  HE WAS THOROUGHLY INFORMED AND
CONVERSANT WITH THE MISSOURI PACIFIC POLICIES OF SYSTEM OPERATION AND
OF EXPANDING AND FINANCING, AND WITH THE RAILROAD OPERATIONS AND THE
FINANCIAL TRANSACTIONS UPON WHICH THE VALIDITY OR INVALIDITY OF THE
DEBT IN CONTROVERSY DEPEND, AS WELL AS THE ACCOUNTING AND REPORTING
SYSTEM MAINTAINED FOR DISCLOSING AND REPORTING THEM.  HE HAD AN
IMPORTANT PART IN WHAT WAS DONE, WAS IN TOUCH WITH SUBSTANTIALLY THE
WHOLE COURSE OF THE MANAGEMENT OF THE NEW ORLEANS UNDER ATTACK AND HE
GAVE HIS EXTENSIVE TESTIMONY UPON DIRECT AND CROSS EXAMINATION WITH
OBVIOUS UNDERSTANDING OF ITS RELEVANCY AND IMPORTANCE.  HIS TESTIMONY,
SUPPORTED BY MANY ACCOUNTING AND SUMMARIZING EXHIBITS, WAS TO THE
EFFECT THAT MISSOURI PACIFIC MANAGEMENT OF NEW ORLEANS WAS HONEST AND
WAS BENEFICIAL TO NEW ORLEANS. 

"JUDGE MOORE, PRESIDING AT THE TRIAL, HAS EXERCISED THE JURISDICTION
IN THESE SECTION 77 PROCEEDINGS THROUGH MOST OF THEIR COURSE, AND HIS
QUESTIONS, COMMENTS AND DIRECTIONS REFLECT HIS CLOSE ATTENTION TO AND
UNDERSTANDING OF THE TESTIMONY AND ITS APPLICATION THROUGH THE TRIAL. 
HIS WRITTEN OPINION IS REPORTED 64 F.SUPP.  64.  HIS FINDINGS OF FACTS
AND CONCLUSIONS OF LAW WERE DRAWN WITH CARE AND THOROUGHNESS, AND
APPEAR TO US TO BE RESPONSIVE TO ALL THE ISSUES PRESENTED BY THE
OBJECTIONS HERE INVOLVED AND THE EVIDENCE THAT WAS ADDUCED, AND THE
APPELLANT HAS NOT CALLED OUR ATTENTION TO ANY REFUSAL ON THE PART OF
THE COURT TO MAKE FINDINGS IN RESPECT TO ANY OTHER ISSUES CLAIMED TO
HAVE BEEN PRESENTED.  THE VAST EXTENT OF THE RAILROAD BUSINESS CARRIED
ON BY THE MISSOURI PACIFIC AND THE NEW ORLEANS DURING THE LONG PAST
PERIOD OF ALLEGED MISMANAGEMENT AND THE INTRICATE CORPORATE STRUCTURES
OF THE RAILROADS, INEVITABLY PRESENTED MOST SERIOUS PROBLEMS IN THE
ATTEMPTS OF ACCOUNTANTS TO PICTURE WHAT THEIR COURSE OF OPERATIONS AND
FINANCIAL TRANSACTIONS HAD BEEN.  THE NEW ORLEANS HAD IN SOME RESPECTS
THE CHARACTER OF A HOLDING COMPANY IN THAT IT OPERATED ITSELF ONLY A
SMALL FRACTION (AROUND 11%) OF THE RAILROAD MILEAGE OF ITS RAILROAD
SYSTEM BUT OWNED THE STOCKS AND SECURITIES OF SOME FOURTEEN OTHER
RAILROAD COMPANIES AND WAS THE ONLY ONE OF THE GROUP OF RAILROADS
COMPRISING ITS RAILROAD SYSTEM WHICH HAD ANY RELATIVELY SUBSTANTIAL
AMOUNT OF SECURITIES OUTSTANDING IN THE HANDS OF THE PUBLIC.  FOR
FINANCING PURPOSES THE INDIVIDUAL ROADS IN THE GROUP WERE DEPENDENT
UPON THE NEW ORLEANS WHICH, ACTING FOR THE GROUP IN RESPECT TO
FINANCING, PRESENTED THE NECESSARY UNITARY FUNCTIONING PRINCIPAL. 
THERE WAS FUNDAMENTAL CONTROVERSY AS TO WHAT INFERENCES SHOULD BE DRAWN
FROM THE AVAILABLE ACCOUNTS TO ESTABLISH THE TRUE FINANCIAL CONDITION
OF THE NEW ORLEANS AT DIFFERENT TIMES WITHIN THE PERIOD AND TO
ESTABLISH AND PRESENT THE FINANCIAL RESULTS OF THE RAILROAD OPERATIONS
THAT WERE CARRIED ON.  MR. WYER TESTIFIED THAT THE IDENTIFIED
CONSOLIDATED BALANCE SHEETS COMPILED UNDER DIRECTION OF THE MISSOURI
PACIFIC AND NEW ORLEANS OFFICERS WERE THE SUMMARIZING RECORDS WHICH
WERE SUBMITTED TO THE BOARD OF DIRECTORS TO KEEP ITS MEMBERS INFORMED
IN THE DISCHARGE OF THEIR DUTIES.  IT WAS THROUGH THE USE OF THE
CONSOLIDATED BALANCE SHEETS THAT THE NEW ORLEANS AND ITS AFFILIATED
RAILROADS WERE TREATED AS A UNIT IN THE FINANCING OF THE COMPANIES
THROUGHOUT MISSOURI PACIFIC MANAGEMENT.  THOUGH HE COULD NOT SAY WHAT
WENT ON IN THE MINDS OF OTHERS, HIS TESTIMONY LEAVES NO ROOM TO DOUBT
THAT THE BOARD MEMBERS WELL UNDERSTOOD HOW THE COMPUTATIONS WERE
ARRIVED AT AND THAT THE MEMBERS RELIED ON THEM IN THE USUAL COURSE OF
THE FINANCING OF THE BUSINESS.  HE WAS INTIMATELY FAMILIAR WITH ALL
PHASES OF THE ACCOUNTING IN WHICH THEY CULMINATE, AND ALTHOUGH HE
ADMITTED THAT PERFECTION WAS NEVER ATTAINED, HIS TESTIMONY TOGETHER
WITH THAT OF THE RAILROAD OFFICERS AND EMPLOYEES WHO DID THE WORK,
FULLY JUSTIFIED THE TRIAL COURT'S RELIANCE UPON THE CONSOLIDATED
BALANCE SHEETS IN HIS FINDINGS AND CONCLUSIONS.  BUT THE DISPUTES AND
CONFLICTS OF TESTIMONY IN RESPECT TO THE ACCOUNTS AND THE INFERENCES TO
BE DRAWN WERE ALL ISSUES OF FACT.  THE COURT RECOGNIZED FULLY ALL THE
BURDEN OF OBLIGATION IMPOSED BY LAW UPON THE MISSOURI PACIFIC IN
RESPECT TO ITS MANAGEMENT OF THE NEW ORLEANS AND THAT IF THE COMSTOCK
CHARGES COULD BE PROVED AND THE INDEBTEDNESS IN ISSUE WAS INVALID OR
OUGHT NOT IN EQUITY TO BE ENFORCED AGAINST NEW ORLEANS STOCKHOLDERS,
THE THEN PENDING PLAN OF REORGANIZATION COULD NOT STAND. 

"COMSTOCK'S CONTENTION THAT THE COURT ERRONEOUSLY PUT THE BURDEN OF
PROVING HIS CHARGES ON HIM RATHER THAN REQUIRING THE MISSOURI PACIFIC
TO PROCEED FIRST TO DISPROVE THEM, IS WITHOUT MERIT.  AS THE EXECUTION
OF THE PROMISSORY NOTES WAS ADMITTED AND AT LEAST FORMAL PROOF OF ALL
OF THE ITEMS OF ADVANCEMENTS MAKING UP THE DEBT HAD BEEN IN THE RECORD
OF THE SECTION 77 PROCEEDINGS FOR MANY YEARS BEFORE THE HEARING, THE
COURT REQUIRED ONLY THAT ALL THE RECORDS OF THE TRANSACTIONS THAT WERE
QUESTIONED BE MADE AVAILABLE FOR THE HEARING SO THAT THERE WAS THE
EQUIVALENT OF A FULL DISCLOSURE BY THE MISSOURI PACIFIC BEFORE COMSTOCK
WAS REQUIRED TO PROCEED WITH HIS PROOF OF THE CHARGES.  IN ITS FINDINGS
THE COURT STATED THE FACTS AS IT FOUND THEM TO BE PROVEN BY THE WHOLE
EVIDENCE.  IT FOUND IN DETAIL AND IN EFFECT THAT THE MISSOURI PACIFIC
HAD ADMINISTERED THE AFFAIRS OF THE NEW ORLEANS IN GOOD FAITH TO THE
ADVANTAGE OF THAT COMPANY; HAD MADE THE ADVANCEMENTS TO IT FOR PROPER
PURPOSES; HAD NOT CAUSED DIVIDENDS TO BE PAID OUT OF CAPITAL OR
IMPROVIDENTLY IN BAD FAITH, AND THAT THE ASSERTED INDEBTEDNESS AROSE
FROM ADVANCEMENT MADE BY MISSOURI PACIFIC TO NEW ORLEANS FOR
BETTERMENTS AND ADDITIONS AND WAS VALID AND SHOULD BE ALLOWED IN ITEMS
SPECIFIED, AND THAT THE PLAN OF REORGANIZATION BASED AS IT WAS IN PART
ON RECOGNITION OF THE EXISTENCE OF THE DEBT IN QUESTION, WAS FAIR AND
EQUITABLE AND CONFORMABLE TO THE REQUIREMENTS OF LAW REGARDING THE
PARTICIPATION OF THE VARIOUS CLASSES OF CREDITORS AND STOCKHOLDERS." 

WE ARE CONFRONTED AT THE OUTSET WITH PETITIONER'S DELAY AND CONDUCT
AND ITS EFFECT ON THE DUTY OF THIS COURT AND THAT BELOW TO PASS ON THE
MERITS OF HIS OBJECTIONS.  COMSTOCK, APPARENTLY WITH GENERAL KNOWLEDGE
OF THE CONDUCT HE ALLEGES TO BE A WRONG TOWARD THE SECURITIES WHICH HE
NOW HOLDS, BOUGHT THEM AT ABOUT 10 CENTS ON THE DOLLAR NEARLY SEVEN
YEARS AFTER THE ALLEGED MISCONDUCT HAD ENDED.  THUS, IT WAS NOT
COMSTOCK WHO WAS A VICTIM OF ANY WRONG-DOING BUT THOSE IN WHOSE HANDS
THE SECURITIES DEPRECIATED TO THE LOW POINT AT WHICH COMSTOCK BOUGHT. 
IT IS APPARENT THAT COMSTOCK BOUGHT A GRIEVANCE TO EXPLOIT AND TO REAP
THE ADVANTAGE OF ITS RECTIFICATION.  THOSE WHO REALIZED THE LOSS
THROUGH SALES TO COMSTOCK COULD, IN NO EVENT, BE INDEMNIFIED IN THIS
PROCEEDING.  FROM EVERY VIEWPOINT, THE DELAY IN ASSERTING THESE CLAIMS
IS UNUSUAL.  THE DISTRICT COURT FOUND IT ALSO PREJUDICIAL DUE TO THE
DEATH OF SIX NAMED WITNESSES AND PARTICIPANTS, AMONG OTHERS, WHOSE
TESTIMONY WOULD BE IMPORTANT.  WHILE IT CONSIDERED THE OBJECTIONS
BARRED BY LACHES, IT NONETHELESS ADJUDGED THEIR MERITS. 

WE THINK THAT, IN THE REORGANIZATION PROCEEDING, THE COURTS MAY
ENTERTAIN ON THEIR MERITS OBJECTIONS TO A PLAN EVEN IF MADE BY ONE WHO
MIGHT BE BARRED FROM ASSERTING A CAUSE OF ACTION IN HIS OWN BEHALF, IF
THE SUBJECT-MATTER OF THE OBJECTIONS IS SUCH THAT IT GOES BEYOND THE
OBJECTOR'S INDIVIDUAL INTERESTS AND AFFECTS THE FAIRNESS AND EQUITY OF
THE PLAN.  IN VIEW OF THE AMOUNT AND POSITION OF THE CLAIM INVOLVED, WE
DO NOT DISAGREE WITH THE COURT OF APPEALS THAT SUCH WAS THE CASE HERE. 

IT ALSO IS TRUE, AS THE COURT BELOW INDICATES, THAT THIS OBJECTOR
MADE NO EFFORT TO EXHAUST OR TO AVAIL HIMSELF OF ADMINISTRATIVE
REMEDIES IN SUPPORT OF HIS OBJECTION.  NEITHER THE OBJECTION NOR THE
EVIDENTIARY SUPPORT FOR IT WERE LAID BEFORE THE INTERSTATE COMMERCE
COMMISSION IN ITS HEARINGS ON SUCCESSIVE PLANS OF REORGANIZATION.  THE
REQUIREMENT THAT THE COMMISSION "HOLD PUBLIC HEARINGS, AT WHICH
OPPORTUNITY SHALL BE GIVEN TO ANY INTERESTED PARTY TO BE HEARD, AND
FOLLOWING WHICH THE COMMISSION SHALL RENDER A REPORT" TO THE COURT IS
NOT PROVIDED WITHOUT A PURPOSE AND IS NOT TO BE IGNORED BY PERSONS WITH
CLAIMS OR OBJECTIONS TO BE HEARD.  THIS ISSUE INVOLVED MATTERS WITH
WHICH THE COMMISSION AND ITS STAFF ARE ESPECIALLY QUALIFIED TO DEAL. 
IT HAS HAD NO OPPORTUNITY TO EXPRESS A VIEW ON THIS ISSUE, WHICH WAS
ALLOWED TO GO BY DEFAULT BEFORE IT, AND THE COURTS DO NOT HAVE THE
BENEFIT OF THE COMMISSION'S INFORMED JUDGMENT ON THE MATTER INVOLVED. 
TO BY-PASS THE COMMISSION AND MAKE THE COURT THE ORIGINAL FORUM FOR
SUCH CONTENTIONS IS NOT TO BE ENCOURAGED. 

BUT THE COURT DID NOT REFUSE TO HEAR THE OBJECTIONS ON THEIR MERITS. 
IN VIEW OF THE FUNCTIONS CAST UPON THE COURT IN SUCH CASES, WE CANNOT
SAY THAT IT MAY NOT, IN ITS DISCRETION, CONSIDER OBJECTIONS ON THEIR
MERITS EVEN THOUGH THEY HAVE NOT BEEN PRESENTED TO THE COMMISSION. 
SOME CIRCUMSTANCES MIGHT BE DISCLOSED TO INDICATE A REMAND FOR THEIR
CONSIDERATION BY THE COMMISSION.  THEY MIGHT INDICATE THAT THE COURTS
WOULD WITHHOLD APPROVAL, NOT OUT OF DEFERENCE TO THE OBJECTING PARTIES'
RIGHTS BUT BECAUSE OF THE BROAD RESPONSIBILITY LAID UPON THE COURT FOR
THE EQUITY AND FAIRNESS OF THE PLAN AS A WHOLE.  THE COURT WILL BE
DILIGENT TO PROTECT ITSELF AND THE PUBLIC FROM APPROVAL OF UNFAIR
PLANS, EVEN BY DEFAULT, AND MAY TAKE FOR ITS OWN USE EVIDENCE NO PARTY
WOULD HAVE A RIGHT TO FORCE UPON IT.  THE COURT BELOW EVIDENTLY
CONSIDERED THE CIRCUMSTANCES OF THIS CASE TO WARRANT SUCH INQUIRY INTO
THE MERITS, AND WE DO NOT INQUIRE WHETHER THE DISCRETION WAS WISELY
EXERCISED.    THE CASE ON THE MERITS PRESENTS, AS TO SEVERAL DIFFERENT
AND COMPLICATED TRANSACTIONS, A SINGLE QUESTION OF LAW.  IT IS SAID
THAT OUR DECISION IN TAYLOR V. STANDARD GAS & ELECTRIC CO., 306 U.S.
307, REQUIRES THAT THE CLAIM OF MISSOURI PACIFIC AGAINST THE NEW
ORLEANS BE DISALLOWED AND PETITIONER'S OBJECTIONS SUSTAINED.  IN THAT
CASE THIS COURT REFORMULATED FOR APPLICATION TO REORGANIZATION CASES A
WHOLESOME EQUITY DOCTRINE TO THE EFFECT THAT A CLAIM AGAINST A DEBTOR
SUBSIDIARY BE DISALLOWED OR AT LEAST SUBORDINATED WHEN THE CLAIMANT
CORPORATION HAS WHOLLY DOMINATED AND CONTROLLED THE SUBSIDIARY AND IN
THE TRANSACTIONS CREATING THE DEBT HAS BREACHED ITS FIDUCIARY DUTY AND
ACTED BOTH TO ITS OWN BENEFIT AND TO THE DETRIMENT OF THE DEBTOR.  AS
WE LATER SAID OF THE DECISION, "THIS WAS BASED ON THE EQUITIES OF THE
CASE - THE HISTORY OF SPOLIATION, MISMANAGEMENT, AND FAITHLESS
STEWARDSHIP OF THE AFFAIRS OF THE SUBSIDIARY BY STANDARD TO THE
DETRIMENT OF THE PUBLIC INVESTORS."  PEPPER V. LITTON, 308 U.S. 295,
308. 

PETITIONER ASKS US TO DECLARE THE SAME RESULT IN THIS CASE DESPITE
EXPLICIT AND UNCHALLENGED FINDINGS THAT, IN ITS DEALINGS WITH NEW
ORLEANS DURING THE PERIOD INVOLVED, "THE MISSOURI PACIFIC ACTED IN GOOD
FAITH AND WITH DUE REGARD TO ITS OBLIGATIONS, LEGAL AND EQUITABLE, TO
THE NEW ORLEANS AND ITS SECURITY HOLDERS," THAT THE "EFFECT OF THE
CONTROL BY THE MISSOURI PACIFIC OF THE GULF COAST LINES WAS BENEFICIAL
AND ADVANTAGEOUS TO THE NEW ORLEANS AND THE HOLDERS AND PLEDGEES OF ITS
SECURITIES," THAT ALL DIVIDENDS IN QUESTION "WERE PAID EITHER OUT OF
THE EARNED SURPLUS OF THE NEW ORLEANS AVAILABLE FOR DIVIDENDS OR OUT OF
THE NET INCOME OF THE NEW ORLEANS AFTER PAYMENT OF ALL PRIOR CHARGES
AGAINST INCOME," AND THAT THE SUBORDINATION OF THE CLAIM AS ASKED
"WOULD UNJUSTLY ENRICH THE HOLDERS OF THE CAPITAL STOCK OF THE NEW
ORLEANS AND THE HOLDERS OF THE SECURED SERIAL BONDS," AS WELL AS OTHER
MORE DETAILED FINDINGS TO THE SAME EFFECT. 

IN THE CASE BEFORE US THERE WAS DOMINATION OF THE SUBSIDIARY, A
RELATIONSHIP BETWEEN CORPORATIONS WHICH THE LAW HAS NOT SEEN FIT TO
PROSCRIBE.  BY THE APPLICATION OF LONG-STANDING PRINCIPLES OF EQUITY
THIS COURT FASHIONED THE RULE IN THE TAYLOR CASE TO PREVENT A FIDUCIARY
IN SUCH A POSITION FROM ENRICHING ITSELF BY BREACH OF ITS TRUST.  IT IS
NOT MERE EXISTENCE OF AN OPPORTUNITY TO DO WRONG THAT BRINGS THE RULE
INTO PLAY; IT IS THE UNCONSCIONABLE USE OF THE OPPORTUNITY AFFORDED BY
THE DOMINATION TO ADVANTAGE ITSELF AT THE INJURY OF THE SUBSIDIARY THAT
DEPRIVES THE WRONGDOER OF THE FRUITS OF HIS WRONG.  ON THE FINDINGS IN
THIS CASE, THE CLAIM OF MISSOURI PACIFIC WAS THE OUTGROWTH OF
COMPLICATED BUT LEGITIMATE GOOD FAITH BUSINESS TRANSACTIONS, NEITHER IN
DESIGN OR EFFECT PRODUCING INJURY TO THE PETITIONER OR THE INTERESTS
FOR WHICH HE SPEAKS. 

SPECIAL EMPHASIS HAS BEEN PLACED ON THE FACT THAT UNDER CONTROL OF
THE MISSOURI PACIFIC DIVIDENDS WERE PAID BY THE SUBSIDIARY AT A TIME
WHEN IT WAS BORROWING MONEY REPRESENTED BY THIS CLAIM.  IT IS CLEAR
FROM THE FINDINGS THAT THE DIVIDENDS WERE PAID OUT OF CURRENT EARNINGS
OR SURPLUS, AND NOT IN VIOLATION OF LAW OR CONTRACT.  ONLY IN 1929 DID
NEW ORLEANS EARN CURRENTLY SUFFICIENT TO PAY ITS DIVIDENDS. 
NEVERTHELESS IN ALL THREE YEARS THERE WAS SUFFICIENT EARNED SURPLUS
LEGALLY TO PERMIT DIVIDENDS.  HEAVY INVESTMENTS IN IMPROVEMENTS MAY
REQUIRE BORROWINGS FOR DIVIDENDS; BUT NO LAW OR PUBLIC POLICY REQUIRES
A CORPORATION TO FINANCE CAPITAL ADDITIONS OUT OF EARNINGS OR TO PASS
DIVIDENDS BECAUSE OF LOW CURRENT EARNINGS WHEN PAST EARNINGS ARE
AVAILABLE FOR DIVIDEND PURPOSES.  THESE PAST EARNINGS MAY BE USED TO
COMPENSATE THE CAPITAL THAT PRODUCED THEM, AND CAPITAL ADDITIONS MAY BE
MADE FROM FUNDS BORROWED OR RAISED BY ISSUES OF CAPITAL SECURITIES, SO
LONG AS THE AUTHORIZATIONS REQUIRED IN THE CASE OF RAILROADS ARE
OBTAINED.  NO QUESTION IS RAISED AS TO THE AUTHORITY TO BORROW. 

WHILE THE CONTEMPORANEOUS BORROWING TO PAY FOR CAPITAL ADDITIONS, AND
PAYMENT OF DIVIDENDS, IS NOT IN ITSELF ILLEGAL, IT WOULD, OF COURSE,
COME UNDER THE BAN OF THE TAYLOR DECISION IF IT WERE CARRIED OUT IN
BREACH OF GOOD FAITH FOR THE ADVANTAGE OF THE HOLDING COMPANY TO THE
DETRIMENT OF THE SUBSIDIARY.  BUT THE FINDINGS OF GOOD FAITH, FAIR
DEALING AND FREEDOM FROM FRAUD OR OVERREACHING COVER THE DIVIDEND
POLICY AS WELL AS OTHER QUESTIONED TRANSACTIONS.  SUCH BEING THE FACTS,
THE ALLOWANCE OF THE CLAIM IS NOT ERROR OF LAW. 

THE FINDINGS HERE DO NOT STOP WITH HOLDING THAT THE QUESTIONED
TRANSACTIONS WERE INTENDED TO AND DID BENEFIT THE SYSTEM AS A WHOLE. 
AN OVER-ALL BENEFIT TO THE SYSTEM MIGHT BE ATTAINED AT THE INJURY OF
ONE OF ITS UNITS AND THE SECURITY HOLDERS OF THAT UNIT.  BUT HERE THE
FINDING OF GOOD FAITH AND OF BENEFIT APPLIES TO THE NEW ORLEANS AND ITS
SECURITY HOLDERS AS WELL AS TO THE SYSTEM GENERALLY.  THE FINDING IS
UNEQUIVOCAL THAT THE CONTROL OF MISSOURI PACIFIC NOT ONLY WAS "IN GOOD
FAITH AND WITH DUE REGARD TO ITS OBLIGATIONS, LEGAL AND EQUITABLE, TO
THE NEW ORLEANS AND ITS SECURITY HOLDERS," BUT ALSO THAT ITS CONTROL OF
THE GULF COAST LINES "WAS BENEFICIAL AND ADVANTAGEOUS TO THE NEW
ORLEANS AND THE HOLDERS AND PLEDGEES OF ITS SECURITIES."  THE
CRITICISED TRANSACTIONS ARE THUS NOT ONLY EXONERATED OF EVIL OR ILLEGAL
INTENT BUT ARE ALSO ESTABLISHED AS BENEFICIAL RATHER THAN INJURIOUS TO
THE INTERESTS WHICH NOW CHALLENGE THEM.  THE FINDINGS TO THAT EFFECT
ARE ENTITLED TO SPECIAL WEIGHT WHERE, AS HERE, THEY ARE BASED ON THE
DISTRICT JUDGE'S COMPLETE FAMILIARITY WITH THE CASE.  RECONSTRUCTION
FINANCE CORPORATION V. DENVER & RIO GRANDE WESTERN R. CO., 328 U.S.
495, 533.  AFFIRMED BY THE CIRCUIT COURT OF APPEALS, THEY ARE, UNDER
THE RULE CONCERNING CONCURRENT FINDINGS, AND ON THE BASIS OF OUR GRANT
OF CERTIORARI, CONCLUSIVE IN THIS COURT. 

DISALLOWANCE OF PETITIONER'S OBJECTIONS ON SUCH FINDINGS WAS NOT
ERROR OF LAW.  IN THIS VIEW OF THE CASE WE NEED NOT CONSIDER QUESTIONS
TENDERED AS TO VALIDITY OR EFFECT OF THE ISSUANCE OF NOTES OR OF THEIR
PLEDGE. 

THE JUDGMENT BELOW IN NO. 451 IS AFFIRMED. 

FN"1  '***  THAT THE ISSUE BY THE NEW ORLEANS, TEXAS & MEXICO RAILWAY
COMPANY OF A NOTE OR NOTES IN AN AGGREGATE AMOUNT NOT EXCEEDING
$7,456,726.78, AS AFORESAID, (2) IS FOR A LAWFUL OBJECT WITHIN ITS
CORPORATE PURPOSES, AND COMPATIBLE WITH THE PUBLIC INTEREST, WHICH IS
NECESSARY AND APPROPRIATE FOR AND CONSISTENT WITH THE PROPER
PERFORMANCE BY IT OF SERVICE TO THE PUBLIC AS A COMMON CARRIER, AND
WHICH WILL NOT IMPAIR ITS ABILITY TO PERFORM THAT SERVICE, AND (B) IS
REASONABLY NECESSARY AND APPROPRIATE FOR SUCH PURPOSE.'  NEW ORLEANS,
TEXAS & MEXICO RAILWAY COMPANY NOTES, FINANCE DOCKET NO. 9817; 189 ICC
600, 601, (1933)(R. 20839-20840)." 

FN"2  THE EXHIBIT 'A' ALSO INCLUDED EXCERPTS FROM A REPORT OF A
SUBCOMMITTEE OF THE UNITED STATES SENATE ON THE SUBJECT OF MISSOURI
PACIFIC SYSTEM - INTER COMPANY DIVIDENDS AND ADVANCES, PUBLISHED ABOUT
JULY 29, 1940, WHICH CRITICIZED MISSOURI PACIFIC MANAGEMENT OF THE NEW
ORLEANS." 

FN"3  THERE WAS ALSO AT ALL TIMES A SUBSTANTIAL MINORITY STOCKHOLDING
INTEREST IN THE NEW ORLEANS WITH MEANS TO KEEP INFORMED OF THE AFFAIRS
OF THE REGULATED RAILROAD CORPORATION." 

PETITIONS IN NOS. 452, 453 AND 454 WERE ADDRESSED TO DISMISSALS BY
THE COURT OF APPEALS FROM THE SAME ORDER AS NO. 451 BUT TAKEN IN
DIFFERENT NAMES.  THE PETITIONS WERE FILED AS SAFEGUARDS AGAINST
PROCEDURAL OBJECTIONS TO REVIEW OF THE ORDER.  THE WRITS IN THESE CASES
ARE DISMISSED. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS
AND MR. JUSTICE RUTLEDGE AGREE, DISSENTING. 

THE RULE THAT MAKES CONCURRENT FINDINGS OF FACT BY TWO COURTS BELOW
BINDING ON US IN THE ABSENCE OF SOME VERY EXCEPTIONAL ERROR IS A WISE
ONE.  BUT IT IS NOT A RULE TO BE APPLIED IN A BLIND MANNER SIMPLY
BECAUSE A CASE INVOLVES A COMPLEX FACTUAL SITUATION.  IN MY VIEW, THERE
IS AN EXCEPTIONAL ERROR INVOLVED IN THE CONCLUSIONS REACHED BY THE
DISTRICT COURT AND AFFIRMED BY THE CIRCUIT COURT OF APPEALS, AN ERROR
THAT IS APPARENT ON THE FACE OF THE DISTRICT COURT'S FINDINGS.  AND
SINCE THIS ERROR IS NOT SUFFICIENTLY ILLUMINATED BY THE OPINION OF THE
CIRCUIT COURT OF APPEALS, 163 F.2D 350, AS QUOTED BY THE MAJORITY IN
THIS COURT, I DEEM IT ESSENTIAL TO MAKE AN INDEPENDENT STATEMENT OF THE
RELEVANT FACTS AS FOUND BY THE DISTRICT COURT. 

THIS CASE GROWS OUT OF THE JOINT REORGANIZATION OF THE MISSOURI
PACIFIC RAILROAD COMPANY AND AFFILIATED RAILROAD CORPORATIONS UNDER
SEC. 77 OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 205.  IT INVOLVES A CLAIM
OF $10,565,226.78 FILED BY THE MISSOURI PACIFIC AGAINST ONE OF ITS
SUBSIDIARIES WHICH WAS ALSO UNDERGOING REORGANIZATION AND THE
APPLICATION TO THAT CLAIM OF THE SO-CALLED DEEP ROCK DOCTRINE
ENUNCIATED IN TAYLOR V. STANDARD GAS CO., 306 U.S. 307. 

IT IS UNNECESSARY FOR PRESENT PURPOSES TO DETAIL THE LONG,
COMPLICATED AND STILL UNFINISHED PROCEEDINGS WHICH HAVE MARKED THE
REORGANIZATION OF THE MISSOURI PACIFIC RAILWAY SYSTEM.  THE INSTANT
PROCEEDING IS DIRECTLY RELATED TO A REVISED PLAN OF REORGANIZATION
APPROVED IN 1944 BY THE INTERSTATE COMMERCE COMMISSION.  THE DISTRICT
COURT BELOW THEN HEARD OBJECTIONS TO THE PLAN BY VARIOUS PARTIES IN
INTEREST.  INCLUDED AMONG THEM WAS THE PETITIONER COMSTOCK.  HE STATED
THAT HE OWNED $80,000 PRINCIPAL AMOUNT OF THE 5 1/4% SECURED SERIAL
GOLD BONDS OF THE MISSOURI PACIFIC.  HIS OBJECTIONS WERE FILED ON
BEHALF OF HIMSELF, OF FOURTEEN OTHER PUBLIC INVESTORS HOLDING IN EXCESS
OF $900,000 ADDITIONAL PRINCIPAL AMOUNT OF THESE BONDS, AND OF ALL
OTHER OWNERS AND HOLDERS OF THE BONDS.  A COMMITTEE OF THESE
BONDHOLDERS, REPRESENTING AN ADDITIONAL $315,000 PRINCIPAL AMOUNT OF
THE BONDS, ALSO JOINED IN COMSTOCK'S OBJECTIONS.  OF THE TOTAL
PRINCIPAL AMOUNT OF THESE BONDS PUBLICLY OUTSTANDING, ABOUT 11 1/2%
WERE SPECIFICALLY REPRESENTED BY COMSTOCK. 

COMSTOCK'S OBJECTION NO. 19, WHICH IS OUR SOLE CONCERN, RELATED TO
THE VALIDITY AND PRIORITY OF A $10,565,226.78 CLAIM FILED BY THE
MISSOURI PACIFIC (HEREINAFTER CALLED MOP) AGAINST ITS SUBSIDIARY NEW
ORLEANS, TEXAS AND MEXICO RAILWAY CO. (HEREINAFTER CALLED NOTM) IN THE
JOINT REORGANIZATION PROCEEDINGS.  IT APPEARS THAT MOP HAD ACQUIRED THE
CONTROLLING INTEREST IN NOTM'S COMMON STOCK IN 1924 AND HAD COMPLETELY
DOMINATED AND CONTROLLED NOTM UNTIL THE REORGANIZATION PROCEEDINGS
BEGAN IN 1933.  MOP'S CLAIM AGAINST NOTM WAS BASED UPON "CASH ADVANCES
FOR OPERATION, INTEREST PAYMENTS, ETC. AT VARIOUS TIMES FROM MARCH,
1929 TO FEBRUARY, 1933, BOTH INCLUSIVE."  MOST OF THE NOTM STOCK WHICH
MOP HELD WAS PLEDGED AS SECURITY FOR THE CLASS OF MOP 5 1/4% SECURED
BONDS WHICH COMSTOCK OWNED, THE PLEDGE CONSTITUTING 82% OF THE
OUTSTANDING SHARES OF NOTM'S SOLE CLASS OF STOCK.  MOP SOUGHT TO PUT
ITS CLAIM AGAINST NOTM AHEAD OF THE CLAIMS OF THE HOLDERS OF THESE MOP
BONDS WHO LOOKED TO THE NOTM COMMON STOCK FOR SECURITY.  THE REVISED
PLAN OF REORGANIZATION GAVE EFFECT TO MOP'S DESIRE IN THIS RESPECT. 

A SEPARATE HEARING WAS HELD BY THE DISTRICT COURT ON COMSTOCK'S
OBJECTION NO. 19.  AFTER CAREFULLY CONSIDERING THE VOLUMINOUS AND
COMPLICATED EVIDENCE ADDUCED AT THIS HEARING, THE COURT ENTERED A
SEPARATE ORDER OVERRULING THE OBJECTION AND HOLDING THAT THE
$10,565,226.78 CLAIM SHOULD BE ALLOWED IN FULL; WITH INTEREST, THIS
CLAIM NOW AGGREGATES MORE THAN $18,000,000.  THE COURT FURTHER HELD
THAT THIS CLAIM, SO ALLOWED, WAS ENTITLED TO PRIORITY OVER THE CLAIMS
OF THE PUBLIC INVESTORS HOLDING MOP 5 1/4% SECURED BONDS.  IN ADDITION,
THE COURT FELT THAT OBJECTION NO. 19 WAS NOT TIMELY AND SHOULD BE
BARRED FROM CONSIDERATION UNDER THE DOCTRINE OF LACHES. 

AT THE SAME TIME, THE DISTRICT COURT ENTERED ANOTHER ORDER OVERRULING
THE OTHER OBJECTIONS RAISED BY COMSTOCK AND THE OTHER PARTIES IN
INTEREST AND APPROVING THE REVISED PLAN OF REORGANIZATION.  AN OPINION
WAS THEN FILED DETAILING THE REASONS FOR THE TWO ORDERS.  IN RE
MISSOURI PACIFIC R. CO., 64 F.SUPP.  64.  COMSTOCK APPEALED FROM THE
ORDER DISMISSING HIS OBJECTION NO. 19.  FN1  THE EIGHTH CIRCUIT COURT
OF APPEALS AFFIRMED THE DISTRICT COURT'S ACTION ON THIS OBJECTION,
HOLDING THAT THE FINDINGS OF THAT COURT WERE NOT CLEARLY ERRONEOUS. 
COMSTOCK V. GROUP OF INSTITUTIONAL INVESTORS, 163 F.2D 350.  AT THE
SUGGESTION OF THE INTERSTATE COMMERCE COMMISSION, THE CIRCUIT COURT OF
APPEALS THEN REMANDED THE REVISED PLAN OF REORGANIZATION BACK TO THE
COMMISSION FOR RECONSIDERATION AND REVISION.  WRIGHT V. GROUP OF
INSTITUTIONAL INVESTORS, 163 F.2D 1022.  THE COMMISSION HAS NOT YET
DISPOSED OF THE MATTER. 

                                I. 

FOR SOMEWHAT DIFFERENT REASONS THAN THOSE ADVANCED BY THE COURT, I
AGREE THAT A JUDICIAL CONSIDERATION OF COMSTOCK'S OBJECTION NO. 19 IS
NOT NOW PRECLUDED BY THE DOCTRINE OF LACHES. 

THE JOINT REORGANIZATION PROCEEDINGS COMMENCED IN 1933.  COMSTOCK DID
NOT PURCHASE ANY OF THE MOP 5 1/4% SECURED BONDS UNTIL 1940, SOON AFTER
A SENATE SUBCOMMITTEE INVESTIGATING RAILROADS ISSUED A REPORT
CRITICIZING THE MOP MANAGEMENT OF NOTM.  S. REP. NO. 25, PART 9, 76TH
CONG., 3D SESS.  HE THEN BOUGHT SOME OF THE BONDS AT ABOUT 10 CENTS ON
THE DOLLAR AND EMPLOYED AN ACCOUNTANT TO STUDY THE RELATIONSHIPS
BETWEEN MOP AND NOTM PRIOR TO 1933.  NOT UNTIL 1943 DID COMSTOCK
SUGGEST THAT THERE MIGHT HAVE BEEN SOME IRREGULARITIES ON THE PART OF
MOP.  AND NOT UNTIL NOVEMBER, 1944, WHEN HE FILED HIS OBJECTION NO. 19
TO THE REVISED PLAN OF REORGANIZATION, DID HE REALLY PRESS HIS
ALLEGATIONS.    PRIOR TO COMSTOCK'S OBJECTION, MORE THAN A DECADE OF
THE REORGANIZATION PROCESS HAD PRODUCED NO CHARGE OR REVELATION OF
IMPROPRIETY AS TO MOP'S $10,565,226.78 CLAIM AGAINST NOTM.  NUMEROUS
INVESTIGATIONS AND HEARINGS HAD BEEN HELD DURING THAT LONG PERIOD
CONCERNING THE PRE-REORGANIZATION ADMINISTRATION OF THE AFFAIRS OF MOP
AND ITS SUBSIDIARIES.  THE PUBLIC HOLDERS OF THE MOP 5 1/4% SECURED
BONDS AND OTHER CREDITORS HAD AMPLE OPPORTUNITY TO QUESTION THE
ALLOWANCE OF THE CLAIM.  BUT NO CHARGES WERE MADE UNTIL AFTER COMSTOCK
PURCHASED HIS BONDS AND CONDUCTED HIS OWN INVESTIGATION.  MANY OF THE
EVENTS TO WHICH OBJECTION NO. 19 RELATES TOOK PLACE MORE THAN TWENTY
YEARS AGO; AND SOME OF THE PERSONS WHO HAD PERSONAL KNOWLEDGE OF THOSE
EVENTS AND WHO MIGHT HAVE BEEN ABLE TO TESTIFY IN REGARD THERETO ARE
NOW DEAD. 

I DO NOT BELIEVE, HOWEVER, THAT THE DOCTRINE OF LACHES IS PROPERLY
APPLICABLE TO THE FACTS OF THIS CASE.  THE DISTRICT COURT HAD BEFORE IT
A REVISED PLAN OF REORGANIZATION OF MOP AND ITS SUBSIDIARIES, A PLAN
WHICH RECOGNIZED THAT NOTM WAS INDEBTED TO MOP AND WHICH PERMITTED MOP
TO COLLECT THAT DEBT WITHOUT SUBORDINATION TO OTHER CREDITORS.  THAT
COURT WAS DUTY BOUND TO TEST THIS PORTION OF THE PLAN BY THE FAIR AND
EQUITABLE RULE AND TO APPROVE IT ONLY IF THE RULE WAS FOUND TO BE
SATISFIED.  AMERICAN INS. CO. V. AVON PARK, 311 U.S. 138, 145-146.  THE
COURT'S DUTY WAS NONETHELESS EXISTENT BECAUSE AN ATTACK ON THE MOP
CLAIM CAME LATE IN THE DAY.  COMSTOCK'S OBJECTION SERVED ONLY TO
EMPHASIZE THE CIRCUMSTANCES SURROUNDING THIS INDEBTEDNESS AND TO GIVE
THE COURT AN OPPORTUNITY TO INQUIRE INTO THE MATTER MORE FULLY THAN IT
MIGHT OTHERWISE HAVE DONE.  MOREOVER, THE FACT THAT THIS OBJECTION HAD
NOT PREVIOUSLY BEEN RAISED AND ADJUDICATED IN THE SEC. 77 PROCEEDINGS
ADDED TO THE APPROPRIATENESS OF A JUDICIAL DETERMINATION OF THE
VALIDITY OF THE DEBT AT THIS JUNCTURE.  ONLY BY EXAMINING THE MATTER
NOW COULD THE COURT BE CERTAIN WHETHER THE TREATMENT ACCORDED THE DEBT
BY THE REORGANIZATION PLAN WAS FAIR AND EQUITABLE. 

THE MOTIVES WHICH LED COMSTOCK TO ACQUIRE HIS BOND HOLDINGS AND TO
RAISE HIS OBJECTION NO. 19 ARE NOT PERTINENT TO THE PERFORMANCE OF THE
DISTRICT COURT'S DUTY OF TESTING THE FAIRNESS OF THE REORGANIZATION
PLAN.  NOR IS IT DECISIVE UNDER THESE CIRCUMSTANCES THAT THE OBJECTION
MIGHT HAVE BEEN RAISED EARLIER BY COMSTOCK OR SOME OTHER BONDHOLDER. 
IT IS ENOUGH THAT THE MATTER WAS PRESENTED IN AN APPROPRIATE FASHION AT
A TIME WHEN THE COURT WAS COMPELLED TO PASS JUDGMENT UPON THE
REORGANIZATION PLAN AND AT A TIME WHEN NO PREJUDICIAL CHANGE IN THE
POSITION OF OTHER PARTIES HAD YET OCCURRED. 

IN THIS CONNECTION, IT IS NOTEWORTHY THAT THE INTERSTATE COMMERCE
COMMISSION AT AN EARLY STAGE IN THE SEC. 77 PROCEEDINGS HELD THAT THE
VALIDITY OF THE MOP CLAIM IS A MATTER "FOR LITIGATION IN THE COURTS." 
THUS COMSTOCK WOULD LIKELY HAVE BEEN UNSUCCESSFUL HAD HE ATTEMPTED TO
SECURE A DETERMINATION OF HIS OBJECTION BY THE COMMISSION BEFORE GOING
TO COURT.  THE COURT TODAY, HOWEVER, EXPRESSLY HOLDS THAT THE DEEP ROCK
ISSUES RAISED BY COMSTOCK INVOLVE MATTERS OVER WHICH THE COMMISSION HAS
JURISDICTION AND WITH WHICH IT IS ESPECIALLY QUALIFIED TO DEAL.  SEE
SCHWABACHER V. UNITED STATES, 334 U.S. 182.  ON THIS PHASE OF THE CASE,
I AM IN AGREEMENT WITH THE COURT.  THE COMMISSION SHOULD DETERMINE THE
APPLICABILITY OF THE DEEP ROCK DOCTRINE TO RAILROAD REORGANIZATION
PLANS WHICH IT FORMULATES.  BUT SINCE THE COMMISSION HAD PREVIOUSLY
REFUSED TO ADJUDICATE THE MERITS OF THE MOP CLAIM AND SINCE COMSTOCK'S
OBJECTION HAS BEEN THOROUGHLY AIRED IN THE DISTRICT COURT, IT IS
INAPPROPRIATE TO REMAND THE CASE NOW TO THE COMMISSION FOR AN
EXPRESSION OF ITS VIEWS. 

DESPITE THE CLAIMED DIFFICULTIES DUE TO THE AGE OF THE PERTINENT
EVENTS AND THE DEATH OF SOME OF THE WITNESSES, THE DISTRICT COURT WAS
ABLE TO GIVE A COMPREHENSIVE TREATMENT TO COMSTOCK'S OBJECTION AND TO
RENDER AN INFORMED JUDGMENT ON THE FAIRNESS OF MOP'S CLAIM AGAINST
NOTM.  MANY OF THE ISSUES REVOLVED ABOUT WRITTEN EVIDENCE AND
STATISTICS.  AND THE COURT WAS ABLE TO DRAW UPON ITS INTIMATE KNOWLEDGE
OF THE MOP-NOTM RELATIONSHIPS, KNOWLEDGE GAINED FROM LONG ASSOCIATION
WITH THE REORGANIZATION PROCEEDINGS.  HENCE THE COURT COULD AND DID
PERFORM FULLY ITS FUNCTION AS TO THAT PORTION OF THE REVISED
REORGANIZATION PLAN WITH WHICH OBJECTION NO. 19 WAS CONCERNED. 

IN THIS SITUATION, THE DESIRABILITY AND NECESSITY OF DETERMINING THE
FAIRNESS AND EQUITABLENESS OF MOP'S CLAIM FAR OUTWEIGH ANY POSSIBLE
INCONVENIENCE CAUSED BY THE LATE PRESENTATION OF THE MATTER. 

                       II. 

IN TAYLOR V. STANDARD GAS CO., SUPRA, THIS COURT ESTABLISHED THE
PRINCIPLE THAT WHERE A PARENT CORPORATION HAS NOT ONLY DOMINATED BUT
HAS MISMANAGED A SUBSIDIARY CORPORATION, WHICH IS PRESENTLY IN
BANKRUPTCY OR REORGANIZATION, AND WHERE THE PARENT HAS A CLAIM WHICH IS
INTIMATELY RELATED TO THE MISMANAGEMENT, A COURT MAY REFUSE TO PERMIT
THE PARENT TO ASSERT THE CLAIM AS A CREDITOR EXCEPT IN SUBORDINATION TO
THE CLAIMS OF THE SUBSIDIARY'S OTHER CREDITORS AND PREFERRED
STOCKHOLDERS.  THIS PRINCIPLE, WHICH HAS BECOME KNOWN AS THE DEEP ROCK
DOCTRINE, IS EQUITABLE IN NATURE.  AS EXPLAINED IN PEPPER V. LITTON,
308 U.S. 295, 308, THE DOCTRINE WAS APPLIED IN THE TAYLOR CASE ON THE
BASIS OF "THE EQUITIES OF THE CASE - THE HISTORY OF SPOLIATION,
MISMANAGEMENT, AND FAITHLESS STEWARDSHIP OF THE AFFAIRS OF THE
SUBSIDIARY BY STANDARD TO THE DETRIMENT OF THE PUBLIC INVESTORS." 

THE FULCRUM OF COMSTOCK'S OBJECTION NO. 19 IS THE DEEP ROCK
DOCTRINE.  THE ARGUMENT IS THAT THE ITEMS CONSTITUTING THE
$10,565,276.78 CLAIM FILED BY MOP AGAINST NOTM ARE IMPREGNATED WITH
MOP'S ALLEGED MISMANAGEMENT OF NOTM AND THAT THE CLAIM SHOULD THEREFORE
BE SUBORDINATED TO THE CLAIM OF THE PUBLIC INVESTORS IN THE MOP 5 1/4%
SECURED BONDS, WHO ARE SECURED BY MOP'S PLEDGE OF THE NOTM COMMON
STOCK. 

IT IS NO ANSWER TO COMSTOCK'S CLAIM THAT THE DISTRICT COURT FOUND
THAT THE TRANSACTIONS GIVING RISE TO THE MOP CLAIM WERE CARRIED OUT IN
GOOD FAITH.  THE EQUITIES WHICH FORM THE DEEP ROCK DOCTRINE RELATE NOT
ALONE TO MATTERS OF BAD FAITH.  THEY ARE ALSO CONCERNED WITH THE
ESSENTIAL FAIRNESS AND PROPRIETY OF TRANSACTIONS FROM AN OBJECTIVE
STANDPOINT.  PEPPER V. LITTON, SUPRA, 306.  LIKE NEGLIGENCE, INEQUITY
MAY BE PRESENT WHERE THERE IS THE UTMOST SUBJECTIVE GOOD FAITH.  IF
THERE IS MISMANAGEMENT AND IF THERE IS UNDUE HARM TO THE CREDITORS AND
PREFERRED STOCKHOLDERS OF THE SUBSIDIARY, THE DEEP ROCK DOCTRINE
DICTATES SUBORDINATION OF THE PARENT'S CLAIM.  AND IF THERE BE GOOD
FAITH ON THE PART OF THE PARENT'S OFFICERS, IT HARDLY JUSTIFIES
IGNORING THE INJURY TO THE SUBSIDIARY'S CREDITORS AND STOCKHOLDERS. 
EQUITY LOOKS IN ALL DIRECTIONS.  ONLY IN THAT WAY CAN THE VARIOUS
INTERESTS IN THE CORPORATE COMMUNITY BE ADEQUATELY PROTECTED. 

MOREOVER, THE ISSUES RAISED BY COMSTOCK ARE NOT RESOLVED BY THE
DISTRICT COURT'S FINDING THAT OPERATIONAL BENEFITS ACCRUED TO NOTM AND
ITS SUBSIDIARIES BY VIRTUE OF THE TRANSACTIONS UNDERLYING MOP'S CLAIM. 
THESE TRANSACTIONS WERE UNDOUBTEDLY TIED IN WITH THE EXPANSION PROGRAM
WHICH MOP WAS UNDERTAKING DURING THIS PERIOD.  BUT A BREACH OF
FIDUCIARY OBLIGATIONS IS NOT TO BE CONDONED BY THE PRESENCE OF
ACCOMPANYING BENEFITS WHERE THE SUBSIDIARY'S ASSETS ARE DEPLETED TO THE
INJURY OF THE STOCKHOLDERS AND CREDITORS OF THE SUBSIDIARY. 

NOR DOES THE FACT THAT MOP, THE PARENT, IS INSOLVENT BAR AN
APPLICATION OF THE DEEP ROCK DOCTRINE TO THE FACTS OF THIS CASE.  THE
INSOLVENCY OF THE PARENT AND THE CONSEQUENT EFFECT OF SUBORDINATION
UPON THE PARENT'S INNOCENT CREDITORS ARE CERTAINLY FACTORS TO BE
CONSIDERED.  SEE CONSOLIDATED ROCK CO. V. DUBOIS, 312 U.S. 510, 524;
PRUDENCE CORP. V. GEIST, 316 U.S. 89, 97.  BUT THEY ARE NOT NECESSARILY
DECISIVE IN ALL CASES.  THE EQUITIES OF A PARTICULAR SITUATION MAY TURN
UPON SOMETHING MORE THAN THE SOLVENCY OR INSOLVENCY OF THE PARENT.  IT
MAY WELL BE THAT A BALANCING OF COMPETING EQUITIES REVEALS THAT IT IS
UNJUST TO PERMIT THE ADVANTAGES ARISING FROM THE PARENT'S BREACH OF
FIDUCIARY DUTIES TO ADHERE TO THE BENEFIT OF THE INNOCENT CREDITORS OF
THE INSOLVENT PARENT.  SOME OTHER INNOCENT PARTIES MAY HAVE AN
OVERRIDING INTEREST WHICH JUSTIFIES SUBORDINATION OF THE CLAIM.  OR THE
CLAIM ITSELF MAY BE SO TAINTED WITH INEQUITY AND UNENFORCEABILITY AS TO
REQUIRE SUBORDINATION REGARDLESS OF THE PARENT'S INSOLVENCY.  AND SO
THE DEEP ROCK DOCTRINE IS AS BROAD AND AS NARROW AS THE EQUITIES IN
EACH CASE. 

IN THIS INSTANCE, I BELIEVE THAT THE PUBLIC HOLDERS OF THE MOP 5 1/4%
SECURED BONDS HAVE A SUFFICIENTLY DIRECT AND OVERRIDING INTEREST IN THE
FINANCIAL WELL-BEING OF NOTM TO JUSTIFY SUBORDINATING THE MOP CLAIM
SHOULD IT APPEAR THAT THIS CLAIM IS INTIMATELY ASSOCIATED WITH A BREACH
OF MOP'S FIDUCIARY DUTIES.  MOP SECURED THESE BONDS WITH A PLEDGE OF
THE NOTM COMMON STOCK AND EXPRESSLY UNDERTOOK NOT TO IMPEACH THE
PLEDGE.  ANY WRONGFUL CONDUCT BY MOP WHICH DIMINISHED THE SIZE OF NOTM
ASSETS WOULD IMPAIR THE VALUE OF THE NOTM STOCK.  SUBORDINATION OF THE
CLAIM WOULD THUS TEND TO MAKE THE NOTM STOCK MORE VALUABLE AND TO MAKE
POSSIBLE A REALIZATION OF MOP'S EXPRESS PLEDGE TO ITS BONDHOLDERS. 
TRUE, CREDITORS OF MOP OTHER THAN THE BONDHOLDERS WOULD BE UNABLE TO
BENEFIT FROM WHATEVER COULD BE COLLECTED ON THE CLAIM.  BUT THEY WERE
NOT THE RECIPIENTS OF A PLEDGE OF NOTM STOCK AND THEY LACKED THE
IMMEDIATE INTEREST THAT THE BONDHOLDERS HAD IN A PROPER PERFORMANCE OF
MOP'S FIDUCIARY DUTIES.  THE INDIRECT LOSS THEY WOULD SUFFER BY
SUBORDINATION IS OUTWEIGHED BY THE DIRECT INJURY TO THE BONDHOLDERS AS
A RESULT OF ALLOWING THE CLAIM. 

IT IS THEREFORE ESSENTIAL TO STUDY THE VARIOUS TRANSACTIONS IN DETAIL
TO DETERMINE WHETHER THEY REPRESENT THE TYPE OF MISMANAGEMENT BY A
PARENT WHICH LEADS TO SUBORDINATION OF THE RESULTING CLAIM AGAINST THE
SUBSIDIARY. 

                             III. 

THE DISTRICT COURT FOUND THAT DURING THE PERIOD FROM MARCH, 1929, TO
FEBRUARY, 1933, MOP ADVANCED TO NOTM THE NET SUM, AFTER DEDUCTING
PRINCIPAL PAYMENTS, OF $10,565,226.78 - WHICH CONSTITUTES THE CLAIM IN
ISSUE.  INCLUDED IN THESE ADVANCES WAS THE GREATER PORTION OF THE
$2,795,000 LOANED TO NOTM BETWEEN NOVEMBER 30, 1928, AND NOVEMBER 27,
1931, TO MAKE ADDITIONS AND IMPROVEMENTS TO THE RAILROAD PROPERTIES OF
NOTM AND OTHER RELATED SUBSIDIARIES.  BUT EACH TIME ONE OF THESE
ADVANCES WAS MADE, THERE WAS AN ALMOST SIMULTANEOUS PAYMENT OF A
DIVIDEND BY NOTM ON ITS STOCK, WHICH WAS LARGELY OWNED BY MOP.  THIS
PHENOMENON IS DEMONSTRATED IN THE FOLLOWING TABLE: 

(CHART OMITTED) 

IT IS SAID, HOWEVER, THAT MOP'S ACTION IN MAKING THESE LOANS AND
RECEIVING BACK THE DIVIDENDS FOLLOWED A NATURAL PATTERN OF A COMPANY
DEVOTED TO IMPROVING THE PROPERTIES OF ITS SUBSIDIARIES, THERE BEING
MERELY A "NEAR COINCIDENCE AS TO THE DATES OF CERTAIN DIVIDENDS AND
ADVANCES."  REFERENCE IS MADE IN THIS RESPECT TO THE RELATIONSHIP WHICH
MOP BEARS TO THE VARIOUS COMPANIES IN THE GULF COAST LINES SYSTEM
(HEREINAFTER CALLED GCL).  IN 1924, MOP ACQUIRED A CONTROLLING INTEREST
IN NOTM AND THEREBY INHERITED COMPLETE CONTROL OF THE GCL SYSTEM, THE
RAIL LINES OF WHICH ARE INTERLACED WITH OTHERS IN THE MOP SYSTEM.  NOTM
AT ALL TIMES HAS BEEN PRIMARILY A HOLDING COMPANY OWNING ALL THE STOCKS
AND BONDS OF THE FOURTEEN SUBSIDIARY COMPANIES CONSTITUTING THE GCL
GROUP, NOTM ITSELF OPERATING ONLY ABOUT 11% OF THE TOTAL GCL MILEAGE. 
OF THE GCL OPERATING COMPANIES, THE ST. LOUIS, BROWNSVILLE AND MEXICO
RAILWAY CO. (HEREINAFTER CALLED BROWNSVILLE) IS THE MOST IMPORTANT,
OPERATING ABOUT ONE-THIRD OF THE GCL MILEAGE AND CONTRIBUTING FROM 61%
TO 84% OF THE GROUP'S INCOME DURING THE PERIOD IN QUESTION.  NOTM IS
THE ONLY ONE OF THE GCL GROUP WHICH HAS SECURITIES OUTSTANDING IN THE
HANDS OF THE PUBLIC. 

ACCORDING TO THE DISTRICT COURT FINDINGS, MOP'S POLICY IN ADVANCING
THE $2,795,000 TO NOTM WAS TO REIMBURSE NOTM'S TREASURY FOR ADDITIONS
AND BETTERMENTS TO THE PROPERTIES OF THE GCL SYSTEM.  NOTM ACTED AS
BANKER FOR THAT SYSTEM.  THE GCL SUBSIDIARIES WERE NOT IN A POSITION
FROM 1925 TO 1930 TO FINANCE THEIR OWN IMPROVEMENTS EXCEPT OUT OF
EARNINGS AND BY BORROWING FROM NOTM.  MOST OF THEIR FREIGHT REVENUES
WERE CLEARED THROUGH NOTM; AS THESE ITEMS WERE RECEIVED BY NOTM, THEY
WERE CREDITED AGAINST THE OBLIGATIONS CREATED BY THE LOANS FROM NOTM TO
THE SUBSIDIARIES.  BUT SINCE THE TOTAL REQUIREMENTS OF THE SUBSIDIARIES
FOR OPERATING EXPENSES, DIVIDENDS AND IMPROVEMENTS WERE IN EXCESS OF
THE RECEIPTS, THE UNPAID ACCOUNTS MOUNTED.  FINALLY MOP HAD TO BEGIN
LOANING MONEY TO NOTM TO COVER THESE ACCOUNTS.  IT IS IN THIS WAY THAT
MOP'S ADVANCES ARE SAID TO HAVE BEEN DIRECTED TOWARD THE IMPROVEMENT
PROGRAM OF THE GCL SYSTEM. 

IT IS VIGOROUSLY DENIED THAT THESE MOP ADVANCES WERE IN ANY WAY USED
TO PAY FOR THE ALMOST SIMULTANEOUS DIVIDENDS FROM NOTM TO MOP, SUCH A
CONTENTION BEING TERMED "SUPERFICIAL" AND CONTRARY TO "BASIC PRINCIPLES
OF ACCOUNTING."  IN SUPPORT OF THAT DENIAL, AN ILLUSTRATION IS USED. 
ASSUME THAT NOTM RECEIVES $200,000 CASH FROM NET EARNINGS ON JANUARY
31, WHEN IT IS KNOWN THAT THIS AMOUNT WILL BE NEEDED TO PAY A BILL FOR
A NEW FREIGHT YARD FOR A SUBSIDIARY.  NOTM ALSO KNOWS THAT ON APRIL 1 A
$100,000 CASH DIVIDEND TO MOP WILL BE DUE.  INSTEAD OF BORROWING TO PAY
FOR THE NEW FREIGHT YARD, NOTM USES THE $200,000 CASH FOR THAT
PURPOSE.  THEN, THREE DAYS PRIOR TO THE DIVIDEND DATE, NOTM BORROWS
$100,000 FROM MOP TO REIMBURSE THE NOTM TREASURY IN PART FOR THE
INVESTMENT IN THE NEW FREIGHT YARD.  THIS SAVES NOTM ABOUT TWO MONTHS'
INTEREST ON $100,000 OF THE MONEY SPENT FOR THE FREIGHT YARD.  THE FACT
THAT A $100,000 CASH DIVIDEND IS PAID THREE DAYS AFTER THE $100,000
LOAN IS THOUGHT TO BE A MERE COINCIDENCE, THE DIVIDEND AND THE LOAN
HAVING NO CONNECTION.    BUT IN THIS ILLUSTRATION IT IS OBVIOUS THAT
NOTM HAS INSUFFICIENT CASH TO FINANCE BOTH THE $200,000 FREIGHT YARD
AND THE $100,000 DIVIDEND.  IT HAS TO BORROW MONEY FOR ONE PURPOSE OR
THE OTHER.  BUT TO SAY THAT IT HERE BORROWS $100,000 TO HELP PAY FOR
THE FREIGHT YARD IS UNREALISTIC.  NOTM HAS ENOUGH CASH TO PAY FOR THE
FREIGHT YARD AND IT USES THE CASH JUST FOR THAT PURPOSE.  TWO MONTHS
LATER IT HAS THE CHOICE OF (1) BORROWING $100,000 AND PAYING THE
DIVIDEND, OR (2) NOT BORROWING THE MONEY AND NOT PAYING THE DIVIDEND. 
IT CHOOSES THE FORMER COURSE OF ACTION.  BY SUCH ACTION, NOTM HAS
BORROWED MONEY TO PAY A DIVIDEND.    THE FOREGOING ILLUSTRATION
INDICATES WHAT THE RECORD IN THIS CASE AMPLY DEMONSTRATES - NAMELY,
THAT THE MOP ADVANCES FOUND BY THE DISTRICT COURT TO HAVE BEEN FOR THE
PAYMENT OF GCL IMPROVEMENTS WERE IN REALITY ADVANCES FOR THE PAYMENT OF
DIVIDENDS BY NOTM, DIVIDENDS WHICH FOR THE MOST PART WENT TO MOP. 
CONSIDERED AS A SEPARATE ENTITY, NOTM RARELY HAD ENOUGH INCOME FROM THE
TIME MOP ACQUIRED CONTROL IN 1924 TO THE START OF REORGANIZATION IN
1933 TO PAY THE REGULAR DIVIDENDS; LOANS WERE ESSENTIAL IF MOP WAS TO
CONTINUE TO RECEIVE ITS SHARE OF THESE DIVIDENDS. 

        YEAR                   NET INCOME    DIVIDENDS 

1925.....................      $839,679.00    $1,038,198 

1926.....................     1,393,806.58     1,038,198 

1927.....................       937,098.90     1,038,198 

1928.....................       742,058.00     1,038,198 

1929.....................     1,153,257.54     1,038,198 

1930.....................       854,139.71     1,038,198 

1931.....................    *  399,487.80     1,038,198 

1932.....................     (-951,607.76)         NONE 

*AFTER DEDUCTION OF $3,155,000 FOR THAT PORTION OF THE DIVIDENDS ON
BROWNSVILLE STOCK HELD BY NOTM WHICH WAS UNPAID IN 1931. 

AFTER STUDYING THESE DIVIDENDS FROM NOTM TO MOP, THE SUBCOMMITTEE OF
THE SENATE COMMITTEE ON INTERSTATE COMMERCE INVESTIGATING RAILROADS
(COMPOSED OF SENATORS WHEELER AND TRUMAN) CONCLUDED AS FOLLOWS: 

"THE N.O.T. & M. ITSELF NEVER EARNED ENOUGH TO PAY THESE DIVIDENDS. 
IN NONE OF THE 6 YEARS, 1926 THROUGH 1931, DID THE N.O.T. & M. EARN
MORE THAN $605,000(EXCLUSIVE OF DIVIDENDS FROM ITS SUBSIDIARY, THE ST.
LOUIS, BROWNSVILLE & MEXICO).  IN 3 OF THE 6 YEARS, THE ROAD SHOWED A
DEFICIT AFTER FIXED CHARGES.  FOR THE 6-YEAR PERIOD CONSIDERED AS A
WHOLE ITS STATED NET INCOME TOTALED A BARE $90,000(AS AGAINST DIVIDEND
DECLARATIONS TOTALING $6,300,000). 

"EVEN THE $90,000 NET INCOME FIGURE WAS A CONSIDERABLE
OVERSTATEMENT.  EACH YEAR THE N.O.T. & M. REGULARLY INCLUDED IN ITS
OPERATING EXPENSES A CERTAIN SUM FOR DEPRECIATION OF ITS EQUIPMENT. 
CONSISTENTLY, YEAR AFTER YEAR, THE AMOUNT CHARGED FOR DEPRECIATION WAS
INADEQUATE.  A STATEMENT FROM THE FILES OF THE RAILROAD ITSELF SHOWS
THAT FOR THE PERIOD 1926 THROUGH 1930 THE N.O.T. & M.'S NET INCOME WAS
OVERSTATED (THROUGH UNDERSTATEMENT OF DEPRECIATION) BY MORE THAN
$411,000.  IF THE RAILROAD'S DEPRECIATION HAD BEEN ADEQUATELY CHARGED,
IT WOULD HAVE SHOWN A DEFICIT FOR THE 6 YEARS 1926-1931 OF $321,000
AFTER FIXED CHARGES.  YET DURING THIS PERIOD THE MISSOURI PACIFIC TOOK
$5,580,000 IN DIVIDENDS OUT OF THE N.O.T. & M."  S. REP. NO. 25, PART
9, 76TH CONG., 3D SESS., PP. 2-3. 

THE CONSOLIDATED PICTURE OF NOTM AND ITS GCL SUBSIDIARIES WAS EQUALLY
INDICATIVE OF THE LACK OF AN ABILITY TO PAY DIVIDENDS TO MOP WITHOUT
BORROWING. 

        YEAR                  NET INCOME    DIVIDENDS 

1925.....................       $2,547,633   $1,038,198 

1926.....................        1,783,278    1,038,198 

1927.....................       (-202,438)    1,038,198 

1928.....................          956,433    1,038,198 

1929.....................          845,064    1,038,198 

1930.....................          674,950    1,038,198 

1931.....................     (-1,122,422)    1,038,198 

CARE WAS TAKEN, HOWEVER, TO AVOID THE APPEARANCE OF BORROWING FROM
MOP TO PAY DIVIDENDS TO MOP, A PRACTICE OF DOUBTFUL LEGALITY.  WHENEVER
IT WAS FOUND THAT NOTM HAD INADEQUATE INCOME TO MEET A PROSPECTIVE
DIVIDEND PAYMENT, MOP OFFICERS WOULD DIRECT BROWNSVILLE, NOTM'S
PRINCIPAL SUBSIDIARY, TO TAKE STEPS TO DECLARE A DIVIDEND ON ITS STOCK,
ALL OF WHICH WAS HELD BY NOTM.  USUALLY THIS DIVIDEND WAS THE PRECISE
AMOUNT BY WHICH NOTM LACKED MONEY TO PAY ITS OWN DIVIDEND.  FN2  BUT
BROWNSVILLE INVARIABLY WAS UNABLE TO MAKE A CASH PAYMENT OF ITS
DIVIDENDS TO NOTM AND MANY OF ITS PRE-1931 DIVIDEND DECLARATIONS WERE
CONSIDERED COLLECTED BY NOTM ONLY AT THE EXPENSE OF LEAVING UNPAID
BROWNSVILLE'S DEBTS TO NOTM FOR ESSENTIAL SUPPLIES.  THESE PAPER
DIVIDEND DECLARATIONS WERE CAPPED IN 1931 WHEN BROWNSVILLE WAS ORDERED
TO DECLARE DIVIDENDS TO NOTM OF $4,155,000; IN THAT YEAR BROWNSVILLE
EARNED BUT $398,000.  THE BUREAU OF ACCOUNTS OF THE INTERSTATE COMMERCE
COMMISSION IN 1936 INFORMED NOTM THAT THESE 1931 DIVIDENDS WERE
DECLARED AT A TIME WHEN NOTM WAS AWARE THAT BROWNSVILLE "WAS WITHOUT
FUNDS TO PAY IT, AND EVEN ON THE BASIS OF PAST EXPERIENCE, THE EARNINGS
OF THE COMPANY, HAD BUSINESS CONTINUED GOOD, WOULD NOT HAVE BEEN
ADEQUATE TO MAKE THE PAYMENT UNTIL SOME FUTURE DATE."  THIS FACT
RENDERED THE DIVIDENDS IMPROPER UNDER COMMISSION RULES.  AND WHILE IT
WAS TOO LATE TO CORRECT THE INCOME ACCOUNTS OF NOTM WHICH HAD ALREADY
BEEN CLOSED, NOTM WAS DIRECTED TO WRITE OFF THE UNPAID PORTION OF THE
1931 DIVIDENDS (SOME $1,400,000) THROUGH PROFIT AND LOSS. 

THIS 1931 INCIDENT GREW OUT OF THE FACT THAT NOTM WAS OPERATING THAT
YEAR AT A GREAT LOSS.  IT BEGAN THAT YEAR WITH A PROFIT-AND-LOSS
BALANCE OF ONLY $709,000 AND OPERATED AT A LOSS OF $606,000.  IT ALSO
HAD TO CHARGE OFF $875,000 TO CORRECT ITS FORMER INADEQUATE
DEPRECIATION ACCRUALS.  BY THE END OF 1931, NOTM WOULD HAVE SHOWN A
DEBIT PROFIT-AND-LOSS BALANCE OF $772,000 OR MORE.  MOP, OF COURSE, WAS
DEMANDING PAYMENT OF THE USUAL $1,038,000 DIVIDEND FOR THE YEAR.  "THE
PROBLEM WAS SOLVED AS IT HAD BEEN SOLVED IN PREVIOUS YEARS - BY MILKING
THE BROWNSVILLE.  BUT THIS TIME THE MILKING WOULD HAVE TO BE THOROUGH. 
...  THE SOLUTION FOUND WAS TO CAUSE THE BROWNSVILLE TO DECLARE AN
EXTRAORDINARY DIVIDEND OF $3,500,000 - A DIVIDEND SEVEN TIMES THE PAR
VALUE OF THE STOCK UPON WHICH IT WAS DECLARED.  OTHER BROWNSVILLE
DIVIDENDS TO THE N.O.T. & M. BROUGHT THE TOTAL FOR THE YEAR TO
$4,155,000, ENOUGH TO FILL UP THE N.O.T.M.'S PROFIT-AND-LOSS DEFICIT
AND TO ENABLE THE LATTER TO DECLARE A $1,038,000 DIVIDEND IN FAVOR
CHIEFLY OF THE MISSOURI PACIFIC."  S. REP. NO. 25, PART 9, 76TH CONG.,
3D SESS., P. 10. 

THUS THE BROWNSVILLE DIVIDEND DECLARATIONS GAVE NOTM EARNED SURPLUSES
ON PAPER WITHOUT GIVING IT ANY CASH WITH WHICH TO PAY ITS DIVIDENDS TO
MOP.  DIVIDENDS DECLARED BY BROWNSVILLE WERE ENTERED AS INCOME TO NOTM
EVEN THOUGH THEY WERE NOT PAID.  AN OSTENSIBLE LEGAL BASIS WAS THEREBY
ESTABLISHED FOR A DECLARATION OF DIVIDENDS TO MOP.  NOTM WOULD THEN
BORROW MONEY FROM MOP TO PAY FOR THOSE DIVIDENDS.  THIS AGAIN WAS
LARGELY A PAPER TRANSACTION.  THE EARNED SURPLUS UPON WHICH THE COURT
TODAY PLACES GREAT RELIANCE IN AFFIRMING THE DISTRICT COURT'S FINDINGS
WAS BUT A FIGMENT OF THE MOP IMAGINATION.  "THE INTRICATE ACCOUNTING
DEVICES EVOLVED BY RAILROAD AND HOLDING COMPANY OFFICIALS IN AN ATTEMPT
TO LEGALIZE DIVIDEND PAYMENTS UNJUSTIFIED BY EARNINGS RESULTED, BOTH IN
1930 AND IN 1931, IN THE PAYMENT OF N.O.T. & M. DIVIDENDS OUT OF
CAPITAL, A PROCEDURE DISGUISED IN 1930 BEHIND FAULTY BOOKKEEPING AND IN
1931 BEHIND AN OUT-AND-OUT VIOLATION OF INTERSTATE COMMERCE COMMISSION
ACCOUNTING REGULATIONS."  S. REP. NO. 25, PART 9, 76TH CONG., 3D SESS.,
P. 14. 

BY ADVANCING TO NOTM $2,795,000, MOP RECEIVED BACK $2,654,000 IN
DIVIDENDS WITHIN A FEW DAYS AFTER THE VARIOUS LOANS, MAKING A TOTAL NET
ADVANCE OF $141,000.  MOP'S CASH POSITION WAS UNAFFECTED BY THESE
VARIOUS TRANSACTIONS, THE NOTM DIVIDENDS MERELY GIVING IT A PAPER
PROFIT-AND-LOSS BALANCE OUT OF WHICH TO DECLARE ITS OWN DIVIDENDS. 
HENCE MOP, LIKE NOTM, WAS FORCED TO BORROW MONEY; IT DID SO FROM
OUTSIDE SOURCES.  YET MOP NOW SEEKS TO CLAIM NEARLY ALL OF THE
$2,795,000 PLUS INTEREST, AN AGGREGATE OF ABOUT $4,795,000, FOR
ENGAGING IN THESE BOOKKEEPING TRANSACTIONS AND FOR EXTENDING CREDIT TO
THE EXTENT OF $141,000. 

NOTM'S FISCAL AFFAIRS IN THIS RESPECT HAVE CERTAINLY NOT "BEEN
CONDUCTED WITH AN EYE SINGLE TO ITS OWN INTERESTS" WITHIN THE MEANING
OF THE DEEP ROCK DOCTRINE.  TAYLOR V. STANDARD GAS CO., SUPRA, 323. 
NOR CAN THESE TRANSACTIONS BE SAID TO MEET THE TEST OF "INHERENT
FAIRNESS" AND THE REQUIREMENT OF AN "ARM'S LENGTH BARGAIN," WHICH ARE
ESSENTIAL INGREDIENTS OF THAT DOCTRINE.  PEPPER V. LITTON, SUPRA, 306
307.  HERE, AS IN THE TAYLOR CASE, DIVIDENDS WERE DECLARED IN THE FACE
OF THE FACT THAT NOTM HAD NOT THE CASH AVAILABLE TO PAY THEM AND WAS,
AT THE TIME, BORROWING IN LARGE AMOUNTS FROM MOP.  AND SEE IN RE
COMMONWEALTH LIGHT & POWER CO., 141 F.2D 734, 738.  COMPELLING A
SUBSIDIARY TO PAY DIVIDENDS UNDER THESE CIRCUMSTANCES IS THE TYPE OF
MISMANAGEMENT BY A PARENT WHICH LEADS TO THE SUBORDINATION OF THE
RESULTING INDEBTEDNESS. 

    IV. 

ANOTHER PART OF THE $10,565,226.78 MOP CLAIM RELATED TO AN
INTERCOMPANY ADJUSTMENT OF $1,261,009.84 MADE DURING OCTOBER, 1932, AT
THE HEIGHT OF THE DEPRESSION AND SHORTLY BEFORE THE SEC. 77 PROCEEDINGS
BEGAN. 

THE INTERNATIONAL-GREAT NORTHERN RAILROAD CO. (HEREINAFTER CALLED THE
I-GN) WAS A SUBSIDIARY OF NOTM, ALTHOUGH NOT DEEMED A PART OF THE GCL
SYSTEM.  I-GN HAD ADVANCED CASH OR DELIVERED MATERIALS TO TEN OF NOTM'S
GCL SUBSIDIARIES; AS OF OCTOBER 31, 1932, THESE TEN COMPANIES WERE
INDEBTED TO I-GN IN THE SUM OF $1,261,009.84 ON ACCOUNT OF THESE
TRANSACTIONS.  ON THE SAME DATE, I-GN WAS INDEBTED TO MOP IN AN AMOUNT
IN EXCESS OF $1,261,009.84. 

IT WAS KNOWN AT THIS TIME THAT THE I-GN CLAIMS AGAINST THE NOTM
SUBSIDIARIES WERE PRESENTLY UNCOLLECTIBLE.  IT WAS ALSO APPARENT THAT
NOTM WAS IN BETTER FINANCIAL HEALTH THAN I-GN.  MOP, WHICH WAS THEN IN
NEED OF LOANS FROM OUTSIDE SOURCES, SOUGHT TO IMPROVE ITS OWN FINANCIAL
CONDITION BY SHIFTING DEBTORS.  IT DID THIS BY INCREASING ITS CLAIM
AGAINST NOTM BY $1,261,009.84 AND BY DECREASING ITS CLAIM AGAINST I-GN
BY THAT SAME FIGURE.  TO MAKE THIS BOOKKEEPING SHUFFLE POSSIBLE, I-GN
CREDITED NOTM AND ITS OTHER SUBSIDIARIES WITH THE PAYMENT OF THE
$1,261,009.84 DEBT WHICH THOSE SUBSIDIARIES OWED.  MOP THEN CREDITED I
GN WITH PAYMENT OF A LIKE AMOUNT, CREDITING IT AGAINST I-GN'S DEBT TO
MOP.  NOTM THEREBY FOUND ITSELF OBLIGATED TO PAY MOP AN ADDITIONAL
$1,261,009.84.  APPROPRIATE ENTRIES WERE MADE, OF COURSE, IN THE
JOURNALS OF THE AFFECTED COMPANIES. 

NOTM HAD NOT PREVIOUSLY BEEN LIABLE TO PAY THIS AMOUNT TO MOP; NOR
DID IT RECEIVE ANYTHING OF VALUE FROM MOP IN RETURN FOR ASSUMING THE
DEBT.  YET NO VALID REASON IS SUGGESTED WHY NOTM SHOULD HAVE BEEN
FORCED TO SHOULDER THIS OBLIGATION, THEREBY DECREASING THE ASSETS
AVAILABLE TO ITS CREDITORS AND STOCKHOLDERS.  CERTAINLY IT WAS NOT
ESSENTIAL, AS HAS BEEN CLAIMED, THAT NOTM ACQUIRE THE DEBT TO PROTECT
ITS OWNERSHIP AND CONTROL OF ITS GCL SUBSIDIARIES.  NOTM WAS
INVULNERABLE IN THAT RESPECT, OWNING ALL THE SECURITIES OF THE
SUBSIDIARIES, AND THE ADDITION OF THIS DEBT ADDED NO NEW PROTECTION. 
THE CONTENTION IS ALSO MADE THAT NOTM OWED A FIDUCIARY OBLIGATION TO I
GN, ITS SUBSIDIARY, AND THAT IT WAS NOTM'S DUTY TO RELIEVE I-GN OF ANY
UNCOLLECTIBLE ITEMS OWED BY OTHER NOTM SUBSIDIARIES.  THE FIDUCIARY
OBLIGATION GROWS OUT OF THE FACT THAT NOTM OWNED ALL THE SECURITIES OF
ITS GCL SUBSIDIARIES.  THIS CONTENTION IS CLOSELY ALLIED TO THE THEORY
THAT NOTM AND THE SUBSIDIARIES ARE A SINGLE FINANCIAL ENTITY AND THAT
IT IS IMMATERIAL WHICH COMPANY WITHIN THAT ENTITY IS LIABLE FOR THE
DEBT.  BUT THE CLOSE RELATIONSHIP OF NOTM AND ITS GCL SUBSIDIARIES DOES
NOT LEGITIMATIZE THE INTERCOMPANY ADJUSTMENT FROM AN EQUITABLE POINT OF
VIEW.  IN THIS SITUATION, WE ARE DEALING WITH THE RIGHTS OF CREDITORS
AND STOCKHOLDERS WHO ARE DIRECTLY INTERESTED IN THE FINANCIAL WELL
BEING OF NOTM AS AN ENTERPRISE SEPARATE AND DISTINCT FROM ITS
SUBSIDIARIES.  HENCE IT IS NECESSARY HERE TO RECOGNIZE AND GIVE EFFECT
TO THE CORPORATE DISTINCTIONS BETWEEN NOTM AND ITS GCL SUBSIDIARIES. 

THE RESULTING PICTURE IS ONE OF A BOOKKEEPING WRITE-UP OF NOTM
INDEBTEDNESS AT A TIME WHEN NOTM WAS ON THE THRESHOLD OF
REORGANIZATION.  NOTM RECEIVED NOTHING WHATEVER TO COMPENSATE FOR THE
INCREASE IN ITS DEBT STRUCTURE.  THE INCREASE SERVED ONLY TO ENABLE
MOP, THE PARENT, TO POSSESS WHAT WAS THOUGHT TO BE A MORE FAVORABLE
CREDITOR'S POSITION.  SUCH TREATMENT OF A SUBSIDIARY'S DEBT STRUCTURE
DOES NOT SQUARE WITH A PARENT'S FIDUCIARY POSITION.  A SUBSIDIARY IS
ENTITLED TO BE SADDLED BY A PARENT ONLY WITH THOSE DEBTS WHICH MAY
FAIRLY BE ALLOCATED TO IT, DEBTS WHICH GROW OUT OF LEGITIMATE BUSINESS
TRANSACTIONS.  TO TRANSFER DEBTS PROMISCUOUSLY FROM ONE SUBSIDIARY TO
ANOTHER MERELY TO AUGMENT THE PARENT'S CREDITOR STATUS IS TO INFLICT AN
INJUSTICE UPON THE CREDITORS AND STOCKHOLDERS OF THE SUBSIDIARY TO
WHICH THE DEBT IS SHIFTED.  IT IS A TYPE OF MISMANAGEMENT OF A
SUBSIDIARY WHICH PROPERLY CALLS THE DEEP ROCK DOCTRINE INTO OPERATION,
CAUSING THE SUBORDINATION OF THE PARENT'S CLAIM FOR THE AMOUNT OF THE
TRANSFERRED DEBT. 

                            V. 

THE REMAINDER OF THE $10,565,226.78 CLAIM CONCERNED THE ADVANCES MADE
BY MOP TO NOTM TO ACQUIRE FIVE TEXAS "FEEDER" RAILROAD LINES AT A COST
OF OVER $5,500,000. 

COMSTOCK'S CONTENTION IN THIS RESPECT IS THAT THE ACQUISITION OF
THESE LINES WAS FOR THE SOLE BENEFIT OF MOP AND I-GN, RATHER THAN FOR
NOTM OR THE GCL SYSTEM.  REFERENCE IS MADE TO A STATEMENT OF THE
INTERSTATE COMMERCE COMMISSION THAT THESE "FEEDER" LINES "WERE REALLY
ACQUIRED FOR THE BENEFIT OF THE ENTIRE (MOP) SYSTEM, AND  ...  THEY
HAVE USUALLY BEEN OPERATED AT A DEFICIT SINCE ACQUISITION."  MISSOURI
PACIFIC R. CO. REORGANIZATION, 239 I.C.C. 7, 71.  MOREOVER, SOME OF THE
"FEEDER" LINES ARE SAID NOT TO CONNECT AT ALL WITH THE LINES OF NOTM OR
ITS GCL SUBSIDIARIES.  AND IT IS THOUGHT THAT SOME OF THE MOP ADVANCES
WERE USED TO COVER OPERATING DEFICITS OF THE ACQUIRED PROPERTY.  SUCH
IS THE BASIS OF THE OBJECTION TO THE RECOGNITION OF MOP'S CLAIM AGAINST
NOTM FOR THE COST OF THE "FEEDER" LINES.    THERE IS NOTHING IN THE
RECORD TO SUPPORT AN APPLICATION OF THE DEEP ROCK DOCTRINE TO THIS
ASPECT OF MOP'S CLAIM.  THE USE OF NOTM TO ACQUIRE SUBSIDIARY RAIL
LINES WHICH HAVE SUBSEQUENTLY BEEN OPERATED AT A LOSS DOES NOT
NECESSARILY INDICATE IMPROPER ACTION BY MOP; A MERE MISTAKE IN BUSINESS
JUDGMENT MAY BE ALL THAT WAS INVOLVED.  AND THE FACT THAT THE
ACQUISITION MAY HAVE BEEN PRIMARILY FOR THE BENEFIT OF SOME PART OF THE
MOP SYSTEM OTHER THAN THE GCL COMPANIES DOES NOT NECESSARILY MEAN THAT
THE ACQUISITION WAS OUTSIDE THE LEGITIMATE SCOPE OF THE FUNCTIONS OF
NOTM, A HOLDING COMPANY IN THE MOP SYSTEM. 

INDEED, THE MAIN THRUST OF COMSTOCK'S OBJECTION TO THIS SEGMENT OF
THE MOP CLAIM IS DIRECTED TOWARD THE ENTIRE HISTORY OF MOP'S MANAGEMENT
OF NOTM.  THE THOUGHT IS THAT THE RELATIONSHIP OF THE PARENT AND THE
SUBSIDIARY HAS BEEN SO COMPLEX AND SO SATURATED WITH MISMANAGEMENT AS
TO WARRANT SUBORDINATION OF THE ENTIRE CLAIM OF THE PARENT WITHOUT
BOTHERING TO DIFFERENTIATE BETWEEN PARTICULAR TRANSACTIONS.  SEE TAYLOR
V. STANDARD GAS CO., SUPRA, 323.  BUT THE RECORD DOES NOT SUPPORT SUCH
AN APPROACH TO THE MOP-NOTM RELATIONSHIP.  THERE HAVE BEEN, AS WE HAVE
SEEN, TWO EXAMPLES OF MISMANAGEMENT ON MOP'S PART THAT WARRANT THE
APPLICATION OF THE DEEP ROCK DOCTRINE.  BUT THOSE SITUATIONS ARE
SEPARABLE IN NATURE FROM THE OTHER TRANSACTIONS BETWEEN MOP AND NOTM. 
AND THE DEEP ROCK DOCTRINE IS NOT ONE THAT OPERATES TO BAR AN ENTIRE
PARENTAL CLAIM IF ONLY A SEPARABLE PORTION OF IT IS INEQUITABLE.  IT IS
ONLY WHERE, AS IN THE TAYLOR CASE, THE PARENT-SUBSIDIARY RELATIONSHIP
HAS BEEN SO COMPLEX THAT IT IS IMPOSSIBLE TO RESTORE THE SUBSIDIARY TO
THE POSITION IT WOULD HAVE BEEN IN BUT FOR THE PARENT'S MISMANAGEMENT
THAT THE ENTIRE CLAIM MAY BE SUBORDINATED WITHOUT DISTINGUISHING THE
GOOD TRANSACTIONS FROM THE BAD.  SUCH IS NOT THE SITUATION IN THIS
CASE. 

                  VI. 

FROM THE FINDINGS OF THE DISTRICT COURT AND THE UNCONTESTED FACTS IN
THE RECORD, I CAN ONLY CONCLUDE THAT OF THE $10,565,226.78 MOP CLAIM,
THE PORTION OF THE $2,795,000 RELATING TO DIVIDEND ADVANCES DURING THE
PERIOD IN QUESTION AND THE $1,261,009.84 RELATING TO THE INTERCOMPANY
BOOKKEEPING TRANSACTION SHOULD BE SUBORDINATED TO THE CLAIMS OF THE
PLEDGEES OF NOTM STOCK.  IN HOLDING OTHERWISE, THE DISTRICT COURT
COMMITTED AN ERROR WHICH THIS COURT SHOULD NOT OVERLOOK. 

FN1  THE LEADING PARTY OPPOSING COMSTOCK ON THIS APPEAL WAS THE GROUP
OF INSTITUTIONAL INVESTORS, HOLDING FIRST AND REFUNDING MORTGAGE BONDS
OF MOP.  THIS GROUP REPRESENTED LESS THAN 10% OF SUCH BONDS AND
ADMITTED THAT IT HAD "NO FINANCIAL INTEREST IN THE CONTROVERSY
REVOLVING ABOUT" THE MOP CLAIM, ITS ONLY INTEREST BEING TO EXPEDITE A
REORGANIZATION PLAN THEN UNDER CONSIDERATION.  BUT THIS GROUP OFFERED
THE ONLY EVIDENCE IN THE DISTRICT COURT IN SUPPORT OF THE MOP CLAIM. 
ANOTHER PARTY WAS THE NOTM MORTGAGE AND INCOME BONDHOLDERS COMMITTEE,
WHICH ALSO ADMITTED IT HAD NO DIRECT INTEREST IN THE MOP CLAIM
LITIGATION.  OTHER PARTIES INCLUDED MOP, THE MOP COMMON AND PREFERRED
STOCKHOLDERS COMMITTEES, THE MOP TRUSTEE, ALLEGHANY CORPORATION, AND
CERTAIN GROUPS OF CREDITORS AND INDENTURE TRUSTEES.  THESE PARTIES ARE
NOW RESPONDENTS BEFORE US. 

FN2  THE METHOD BY WHICH MOP WOULD BRING ABOUT THE BROWNSVILLE
DECLARATION OF DIVIDENDS IS SHOWN BY THE FOLLOWING TYPICAL EXCHANGE OF
LETTERS BETWEEN NOTM AND MOP OFFICIALS:

                                      "HOUSTON, JANUARY 10TH, 1931 

"MR. L. W. BALDWIN:  THE NET INCOME OF THE NOT&M FOR THE THREE MONTHS
ENDING NOVEMBER 30TH, 1930, REFLECTS A DEFICIT OF $56,613.10, WHICH IS
$316,188.85 SHORT OF QUARTERLY DIVIDEND REQUIREMENT OF THE NOT&M DUE
DECEMBER 1ST, 1930. 

"I AM ATTACHING HERETO STATEMENT SHOWING RESULT OF OPERATIONS FOR THE
MONTHS OF SEPTEMBER, OCTOBER, AND NOVEMBER 1930. 

"FOLLOWING PAST PRACTICE, WE WILL ARRANGE FOR MR. COLE TO LIST FOR
ACTION AT THE NEXT MEETING OF THE BOARD OF DIRECTORS OF THE STLB&M
(BROWNSVILLE), A RESOLUTION PROVIDING THAT DIVIDEND BE DECLARED OUT OF
THE SURPLUS OF THE STLB&M IN FAVOR OF THE NOT&M.

                                           "H. R. SAFFORD. 

                                           "F." 

THE REPLY TO THE FOREGOING LETTER FOLLOWS:

                            "ST. LOUIS, MO., JANUARY 13, 1931 

"MR. SAFFORD:  REFERRING TO YOUR LETTER OF JANUARY 10TH, FILE 482-2,
WITH REFERENCE TO DECLARING DIVIDEND OUT OF THE SURPLUS OF THE ST.
LOUIS, BROWNSVILLE & MEXICO RAILWAY COMPANY IN FAVOR OF THE NEW
ORLEANS, TEXAS & MEXICO RAILWAY COMPANY. 

                                         "L. W. BALDWIN,

                                          "PER C.D.P." 

"PER C.D.P." 

ON JUNE 17, 1931, BROWNSVILLE DECLARED A DIVIDEND OF $316,188.85, THE
PRECISE AMOUNT OF THE NOTM DEFICIT; THE DIVIDEND WAS DECLARED EFFECTIVE
AS OF NOVEMBER 30, 1930, ONE DAY PRIOR TO THE DIVIDEND DATE FOR NOTM'S
STOCK. 
..END :
























TAYLOR V. ALABAMA, 335 U.S. 252 


NO. 721.  ARGUED APRIL 30 AND MAY 3, 1948.  - DECIDED JUNE 21, 1948.  -
249 ALA. 667, 32 SO.2D 659, AFFIRMED. 


1.  THE ALABAMA PROCEDURE, WHEREBY A TRIAL COURT OF THAT STATE, BY
WRIT OF ERROR CORAM NOBIS, MAY SET ASIDE ITS OWN JUDGMENT IN A CRIMINAL
CASE BECAUSE OF AN ERROR OF FACT NOT APPARENT ON THE COMMON LAW RECORD,
IS A PROCEDURE LONG RECOGNIZED BY THE COMMON LAW AND CONSTITUTES DUE
PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT.  PP. 254, 259-261. 

2.  IN REQUIRING THAT PERMISSION OF THE STATE SUPREME COURT BE
OBTAINED BY PETITIONER BEFORE FILING SUCH A PETITION FOR WRIT OF ERROR
CORAM NOBIS IN A TRIAL COURT, WHERE THE TRIAL COURT'S JUDGMENT ALREADY
HAS BEEN AFFIRMED BY SUCH SUPREME COURT, THE PROCEDURE OF THE STATE IS
IN ACCORDANCE WITH LONG-ESTABLISHED COMMON LAW PRACTICE AND CONSTITUTES
DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT.  PP. 254-255, 261. 

3.  IN A TRIAL IN A STATE COURT OF ALABAMA IN WHICH HE WAS
REPRESENTED BY COMPETENT COUNSEL ACCEPTABLE TO HIM, DID NOT TESTIFY IN
HIS OWN DEFENSE AND MADE NO CLAIM THAT HIS CONFESSIONS AND ADMISSIONS
INTRODUCED IN EVIDENCE WERE COERCED, AND IN WHICH TESTIMONY WAS
INTRODUCED AS TO HIS PREVIOUS STATEMENT THAT HIS CONFESSIONS AND
ADMISSIONS HAD NOT BEEN COERCED, PETITIONER WAS CONVICTED OF RAPE AND
SENTENCED TO DEATH.  ON APPEAL, THE SUPREME COURT OF ALABAMA AFFIRMED. 
THEREAFTER, THROUGH NEW COUNSEL, HE PETITIONED THE SUPREME COURT OF
ALABAMA FOR AN ORDER GRANTING HIM THE RIGHT TO FILE A PETITION IN THE
TRIAL COURT FOR WRIT OF ERROR CORAM NOBIS, CLAIMING THAT THE
CONFESSIONS AND ADMISSIONS USED AGAINST HIM AT THE TRIAL HAD BEEN
COERCED AND THAT, THROUGH FEAR OF FURTHER REPRISALS, HE HAD FALSELY
TOLD HIS OWN TRIAL COUNSEL THE CONTRARY.  AFTER ARGUMENT AND UPON
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THAT IN THE TRIAL COURT
AND THE AFFIDAVITS FILED IN SUPPORT OF AND IN OPPOSITION TO THE
PETITION, BUT WITHOUT ANY STATEMENT FROM PETITIONER'S TRIAL COUNSEL,
THE SUPREME COURT OF ALABAMA FOUND THAT THE AVERMENTS OF THE PETITION
WERE UNREASONABLE, THAT THERE WAS NO PROBABILITY OF TRUTH CONTAINED
THEREIN, AND THAT THE PROPOSED ATTACK UPON THE JUDGMENT WAS NOT
MERITORIOUS.  IT ACCORDINGLY DENIED THE PETITION.  HELD:  IN SO DOING,
IT DID NOT DENY PETITIONER DUE PROCESS OF LAW UNDER THE FOURTEENTH
AMENDMENT.  PP. 261-272. 

(A)  THE ISSUE BEFORE THIS COURT IS LIMITED TO A DETERMINATION OF
WHETHER, UNDER ALL THE CIRCUMSTANCES, THE ACTION OF THE SUPREME COURT
OF ALABAMA IN DENYING PERMISSION FOR THE PETITIONER TO FILE HIS
PETITION NOT MERELY HAD COMMITTED AN ERROR BUT HAD DEPRIVED THE
PETITIONER OF LIFE OR LIBERTY WITHOUT DUE PROCESS OF LAW.  PP. 261
262. 

(B)  IN PASSING UPON THE PETITION, THE SUPREME COURT OF ALABAMA WAS
NOT BOUND TO ACCEPT THE ALLEGATIONS OF THE PETITION AT FACE VALUE. 
THAT COURT WAS CALLED UPON TO DECIDE NOT ONLY WHETHER, IF TRUE, IT
PRESENTED A MERITORIOUS GROUND FOR SETTING ASIDE ITS PREVIOUS JUDGMENT
BUT, IN ITS SUPERVISORY CAPACITY OVER THE ENFORCEMENT OF THE LAW, TO
DETERMINE ALSO THE REASONABLENESS OF THE ALLEGATIONS MADE IN THE
PETITION AND THE PROBABILITY OR IMPROBABILITY OF THEIR TRUTH.  P. 262. 

(C)  THE PETITION AND THE AFFIDAVITS FILED IN ITS SUPPORT MUST BE
TESTED FOR THEIR REASONABLENESS, THE PROBABILITY OF THEIR TRUTH, THE
EFFECTIVENESS OF THE ATTACK THEY MAKE ON THE ORIGINAL JUDGMENT AND
THEIR RELATIONSHIP TO THE GENERAL ENFORCEMENT OF LAW WITH JUSTICE TO
ALL - IN THE LIGHT OF THE ENTIRE RECORD ALREADY MADE IN THE CASE.  PP.
264-265. 

(D)  IN THE LIGHT OF THE ENTIRE RECORD, THE CONSTRUCTION GIVEN TO IT
BY THE SUPREME COURT OF ALABAMA, AND THAT COURT'S FINDING THAT THE
AVERMENTS OF THE PETITION WERE UNREASONABLE, THAT THERE WAS NO
PROBABILITY OF TRUTH CONTAINED THEREIN AND THAT THE PROPOSED ATTACK
UPON THE JUDGMENT WAS NOT MERITORIOUS, AND IN RECOGNITION OF THAT
COURT'S SUPERVISORY CAPACITY OVER THE PROCEDURE IN THE CRIMINAL TRIALS
OF THAT STATE, IT CANNOT BE SAID THAT THE ACTION OF THE SUPREME COURT
OF ALABAMA IN DENYING THE PETITION WAS SUCH AN ARBITRARY ONE AS IN
ITSELF TO AMOUNT TO DEPRIVATION OF DUE PROCESS OF LAW.  PP. 265-272. 

TAYLOR V. ALABAMA. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

AFTER PETITIONER HAD BEEN CONVICTED OF RAPE AND SENTENCED TO DEATH
AND HIS CONVICTION HAD BEEN AFFIRMED BY THE SUPREME COURT OF ALABAMA
(249 ALA. 130, 30 SO.2D 256), HE PETITIONED THE SUPREME COURT OF
ALABAMA FOR PERMISSION TO FILE A PETITION FOR WRIT OF ERROR CORAM NOBIS
IN THE TRIAL COURT, CLAIMING FOR THE FIRST TIME THAT HIS CONFESSIONS
AND ADMISSIONS INTRODUCED IN EVIDENCE AT THE TRIAL HAD BEEN COERCED. 
THE SUPREME COURT OF ALABAMA DENIED THE PETITION.  249 ALA. 667, 32
SO.2D 659.  THIS COURT GRANTED CERTIORARI.  333 U.S. 866.  AFFIRMED, P.
272. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE STATE OF ALABAMA DEPRIVED THE
PETITIONER OF DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT  FN1
TO THE CONSTITUTION OF THE UNITED STATES WHEN THE SUPREME COURT OF THAT
STATE DENIED HIM PERMISSION TO FILE A PETITION FOR WRIT OF ERROR CORAM
NOBIS IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA.  WE HOLD THAT IT
DID NOT.  WE HOLD ALSO THAT THE ALABAMA PROCEDURE, WHEREBY ONE OF ITS
TRIAL COURTS, BY WRIT OF ERROR CORAM NOBIS, MAY SET ASIDE ITS OWN
JUDGMENT IN A CRIMINAL CASE BECAUSE OF AN ERROR OF FACT NOT APPARENT ON
THE COMMON LAW RECORD, IS A PROCEDURE LONG RECOGNIZED BY THE COMMON LAW
AND CONSTITUTES DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT.  WE
HOLD FURTHER THAT THE PROCEDURE OF THAT STATE IS IN ACCORDANCE WITH
LONG-ESTABLISHED COMMON LAW PRACTICE AND CONSTITUTES DUE PROCESS OF LAW
UNDER THE FOURTEENTH AMENDMENT IN REQUIRING THAT THE PERMISSION OF THE
SUPREME COURT OF ALABAMA BE SECURED BY A PETITIONER BEFORE FILING SUCH
A PETITION FOR WRIT OF ERROR CORAM NOBIS, IN A TRIAL COURT OF ALABAMA,
IF IT APPEARS THAT THE TRIAL COURT'S JUDGMENT ALREADY HAS BEEN AFFIRMED
BY SUCH SUPREME COURT. 

OCTOBER 25, 1946, THE PETITIONER, SAMUEL TAYLOR, A NEGRO, RESIDING IN
PRICHARD, MOBILE COUNTY, ALABAMA, AND THEN 19 YEARS OLD, WAS INDICTED
FOR RAPE.  THE ACT FOR WHICH HE WAS INDICTED WAS AN ATTACK MADE IN
PRICHARD, APRIL 12, 1946, ON A WHITE GIRL THEN 14 YEARS OLD.  OCTOBER
26, HENRI M. ALDRIDGE, OF THE MOBILE COUNTY BAR, WAS APPOINTED BY THE
CIRCUIT COURT OF THAT COUNTY TO REPRESENT THE PETITIONER.  HOWEVER,
OCTOBER 28, ON COUNSEL'S OWN MOTION, THIS ORDER WAS SET ASIDE AND,
THROUGHOUT THE TRIAL, HE REPRESENTED THE PETITIONER, EVIDENTLY AS
COUNSEL OF THE PETITIONER'S CHOICE OR OF THAT OF HIS FAMILY.  DECEMBER
30, ON MOTION OF THE CIRCUIT COURT, THE SAME COUNSEL WAS APPOINTED TO
PREPARE AND PROSECUTE THE PETITIONER'S APPEAL TO THE SUPREME COURT OF
ALABAMA.  HE THUS REPRESENTED THE PETITIONER AT LEAST FROM OCTOBER 26,
1946, UNTIL THE DATE OF THE JUDGMENT OF THE SUPREME COURT OF ALABAMA,
APRIL 24, 1947, AND IT IS CLEAR THAT HE RENDERED ADEQUATE AND COMPETENT
SERVICE.  FN2 

THE TRIAL TOOK PLACE IN THE CIRCUIT COURT OF MOBILE COUNTY, NOVEMBER
19, 1946.  AFTER A FULL HEARING IN WHICH THE PETITIONER DID NOT TAKE
THE STAND, THE TRIAL JUDGE SUBMITTED TO THE JURY FOUR ALTERNATIVE FORMS
OF VERDICTS:  "GUILTY OF RAPE AS CHARGED IN THE INDICTMENT, AND FURTHER
FIND HE SHALL SUFFER DEATH BY ELECTROCUTION"; "GUILTY OF RAPE, AS
CHARGED IN THE INDICTMENT, AND FURTHER FIND HE SHALL BE IMPRISONED IN
THE PENITENTIARY FOR - " ("WHATEVER YOU SHOULD DETERMINE, NOT LESS THAN
TEN YEARS UP TO LIFE"); "GUILTY OF CARNAL KNOWLEDGE, AS CHARGED IN THE
INDICTMENT, AND FURTHER FIND HE SHALL BE IMPRISONED IN THE PENITENTIARY
FOR - YEARS" ("WHATEVER YOU SHOULD DETERMINE, NOT LESS THAN TWO NOR
MORE THAN TEN"), AND "NOT GUILTY."  THE JURY RETURNED ITS VERDICT IN
THE FIRST FORM AND THE PETITIONER WAS SENTENCED TO BE ELECTROCUTED
JANUARY 9, 1947, AT THE KILBY PRISON, AT MONTGOMERY, ALABAMA.  NO
MOTION WAS MADE FOR A NEW TRIAL BUT NOTICE OF APPEAL WAS ENTERED AND
THE PETITIONER'S SENTENCE WAS SUSPENDED PENDING THE APPEAL. 

ON APPEAL THE CASE WAS FULLY BRIEFED AND ARGUED, AND, APRIL 24, 1947,
THE JUDGMENT WAS UNANIMOUSLY AFFIRMED.  TAYLOR V. STATE, 249 ALA. 130,
30 SO.2D 256.  FROM A SUBSEQUENT BRIEF OF THE STATE IT APPEARS THAT THE
PETITIONER DID NOT APPLY FOR A REHEARING, THAT HE WAS LATER DENIED
CLEMENCY BY THE GOVERNOR, AND THAT HE WAS GRANTED A REPRIEVE FROM THE
EXECUTION OF THE DEATH SENTENCE UNTIL SEPTEMBER 19, 1947. 

SEPTEMBER 18, 1947, THE PETITIONER, REPRESENTED BY NEW COUNSEL,
INSTITUTED THE PRESENT PROCEEDING IN THE SUPREME COURT OF THE STATE AT
MONTGOMERY.  THIS PROCEEDING IS NUMBERED FIRST DIVISION 308 AND IS
ENTITLED "EX PARTE TAYLOR, IN RE NO. 279 SAMUEL TAYLOR APPELLANT V.
STATE OF ALABAMA, APPELLEE."  IT WAS INITIATED BY A PETITION TO THE
SUPREME COURT OF ALABAMA FOR AN ORDER GRANTING THE PETITIONER THE RIGHT
TO FILE A PETITION IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA, FOR
WRIT OF ERROR CORAM NOBIS.  THE PETITION IN THIS NEW PROCEEDING WAS
SWORN TO BY THE PETITIONER AND SUPPORTED BY THE AFFIDAVITS OF THREE MEN
WHO HAD BEEN IN THE PRICHARD JAIL WITH HIM JUNE 29-JULY 3, 1946.  THIS
PETITION AND THESE AFFIDAVITS EXECUTED IN SEPTEMBER, 1947, PRESENTED
FOR THE FIRST TIME A CHARGE THAT THE PETITIONER'S SEVERAL CONFESSIONS,
HIS IDENTIFICATION OF THE PROSECUTRIX AND THE DEMONSTRATION OF
LOCATIONS WHICH HAD BEEN MADE BY THE PETITIONER AS TO HIS PART IN THE
CRIME, ALL ON JULY 3, 1946, HAD BEEN INDUCED BY PHYSICAL VIOLENCE
ADMINISTERED TO HIM OR THREATS MADE TO HIM IN THE PRICHARD JAIL PRIOR
TO THAT DATE.  THROUGHOUT THE TRIAL UNCONTRADICTED TESTIMONY HAD BEEN
GIVEN REPEATEDLY THAT THE PETITIONER HAD VOLUNTEERED HIS CONFESSIONS
AND THAT HE HAD MADE HIS DISCLOSURES "TO GET IT ALL OFF HIS CHEST." 
THIS ATTITUDE WAS REINFORCED BY THE PETITIONER'S READY AND COMPLETE
DISCLOSURES OF MANY DETAILS OTHERWISE UNAVAILABLE.  IN EACH INSTANCE
THESE WERE CONSISTENT WITH THE OTHER EVIDENCE IN THE CASE AND WERE
DEMONSTRATIVE OF THE UNFAILING TRUTHFULNESS OF THE STATEMENTS MADE BY
THE PETITIONER ON JULY 3.  UNTIL THE FILING OF THIS NEW PROCEEDING, THE
PETITIONER'S STATEMENTS HAD NOT BEEN AT ANY POINT SELF-CONTRADICTORY OR
IN CONFLICT WITH OTHER EVIDENCE.  HIS PRESENT PETITION, ON THE OTHER
HAND, IS IN DIRECT CONFLICT WITH THE STATEMENTS MADE BY HIM TO THE
MAYOR OF PRICHARD AND OTHERS, JULY 3, AND AS TO WHICH THE MAYOR
TESTIFIED AT THE TRIAL, NOVEMBER 19, 1946.  THE PETITIONER NOW ALLEGES
THAT WHEN, APART FROM THE TRIAL, HE "WAS ASKED BY HIS SAID ATTORNEY WHO
REPRESENTED HIM ON THE TRIAL  ...  IF HE WAS MISTREATED OR BEATEN IN
ANY FASHION BY THE LAW ENFORCEMENT OFFICERS IN CONNECTION WITH THE
GIVING OF SAID CONFESSION HE REPLIED IN THE NEGATIVE, BEING UNEDUCATED
AND IGNORANT AS AFORESAID, AND FEARFUL OF FURTHER REPRISALS BY SAID
POLICE OFFICERS."  IT DOES NOT APPEAR THAT HE MADE ANY CONTRARY
DISCLOSURES TO HIS COUNSEL EVEN DURING THE TRIAL OF NOVEMBER 19, 1946,
OR UP TO THE AFFIRMANCE OF THE CASE ON APPEAL, APRIL 24, 1947, ALTHOUGH
THE PETITIONER HAD LONG BEEN OUT OF THE CUSTODY OF THE PRICHARD POLICE
AND WAS AWARE OF THE DILIGENCE WITH WHICH HIS COUNSEL, WITHOUT SUCCESS,
HAD SOUGHT THROUGHOUT THE TRIAL TO UNCOVER POSSIBLE EVIDENCE OF
VIOLENCE OR OTHER COERCION IN CONNECTION WITH THE PETITIONER'S
DISCLOSURES MADE ON JULY 3.  IT IS WORTHY OF NOTICE THAT, PRIOR TO THE
ADMISSION IN EVIDENCE OF EACH STATEMENT OF THE PETITIONER IN THE NATURE
OF A CONFESSION, HIS COUNSEL DILIGENTLY SOUGHT TO INQUIRE INTO ITS
VOLUNTARINESS, AND NEVER SUCCEEDED IN BRINGING OUT EVIDENCE OF ITS
INVOLUNTARY CHARACTER.  THE TRIAL JUDGE IN EACH INSTANCE EXPRESSLY
FOUND THE EVIDENCE TO BE ADMISSIBLE.  THE PETITIONER'S FAILURE TO
CHANGE HIS ORIGINAL STATEMENT TO HIS COUNSEL WOULD OF COURSE BE
CONSISTENT WITH ITS TRUTHFULNESS AND WITH ALL THE EVIDENCE ON RECORD
BEFORE SEPTEMBER 18, 1947. 

AFTER THE FILING OF THE PRESENT PROCEEDING THE SENTENCE OF EXECUTION
OF THE PETITIONER WAS FURTHER SUSPENDED.  SEPTEMBER 25, 1947, THE STATE
OF ALABAMA FILED ITS MOTION TO DISMISS THE NEW PETITION.  IN THAT
MOTION IT CALLED THE ATTENTION OF THE COURT TO THE TESTIMONY IN THE
ORIGINAL PROCEEDING RECENTLY REVIEWED BY THAT COURT AND CONTRADICTORY
TO THE NEW POSITION TAKEN BY THE PETITIONER.  OCTOBER 29, 1947, THE
ISSUE WAS ARGUED AND THE STATE FILED AN AFFIDAVIT ACCOMPANIED BY EIGHT
PHOTOGRAPHS WHICH HAD BEEN TAKEN OF THE PETITIONER AT 5:37 P.M., JULY
3, 1946.  SEVEN OF THESE WERE TAKEN OF HIM IN THE NUDE IMMEDIATELY
AFTER HE HAD MADE HIS SEVERAL CONFESSIONS ON THAT DAY AND IMMEDIATELY
FOLLOWING THE DATES JUNE 29 TO JULY 2, INCLUSIVE, ON WHICH DATES THE
NEW PETITION ALLEGES THAT SEVERE BEATINGS HAD BEEN ADMINISTERED TO
HIM.  FN3  NOVEMBER 13, 1947, THE SUPREME COURT OF ALABAMA, BY A VOTE
OF SIX TO ONE, DENIED THE PETITION.  EX PARTE TAYLOR, 249 ALA. 667, 32
SO.2D 659.  DECEMBER 4 IT DENIED A REHEARING.  MARCH 3, 1948, PETITION
FOR CERTIORARI WAS FILED HERE.  BECAUSE OF THE IMPORTANT RELATION OF
THIS PROCEDURE TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT,
ESPECIALLY IN CAPITAL CASES, WE GRANTED CERTIORARI.  333 U.S. 866. 

THE FIRST QUESTION IS WHETHER THIS ALABAMA PROCEDURE TO SECURE A
REVIEW OF A JUDGMENT IN A CRIMINAL CASE BY WRIT OF ERROR CORAM NOBIS
CONSTITUTES DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT.  IT IS
CLEAR THAT IT DOES.  THIS PROCEDURE TO ENABLE A TRIAL COURT TO CORRECT
ITS OWN JUDGMENT WHEN FOUND BY IT TO HAVE BEEN BASED UPON AN ERROR OF
FACT NOT APPARENT ON THE COMMON LAW RECORD HAS LONG BEEN RECOGNIZED AT
COMMON LAW.  FN4  IT SURVIVES IN VARYING FORMS IN STATE PRACTICE BUT IT
MAY BE THAT IN FEDERAL PRACTICE ITS PURPOSE IS OTHERWISE SERVED.  FN5
THIS COURT HAS HELD EXPRESSLY THAT, IN THE FORM IN WHICH THE PROCEDURE
CAME BEFORE US FROM FLORIDA, IN 1942, IT CONFORMED TO DUE PROCESS OF
LAW UNDER THE FOURTEENTH AMENDMENT.  HYSLER V. FLORIDA, 315 U.S. 411. 
FN6  THE SUPREME COURT OF ALABAMA, AT LEAST SINCE ITS DECISION, IN
1943, IN JOHNSON V. WILLIAMS, 244 ALA. 391, 13 SO.2D 683, HAS FOLLOWED
FLORIDA PRECEDENTS AS TO THIS PROCEDURE, AND THERE IS NO CONTROVERSY
HERE AS TO THE CONFORMITY OF THE PRESENT PROCEDURE WITH THAT OF THOSE
PRECEDENTS.  FN7 

AS DISTINGUISHED FROM THE TRADITIONAL WRIT OF ERROR ENABLING A
SUPERIOR COURT TO REVIEW AN ERROR OF LAW COMMITTED BY A TRIAL COURT,
THE WRIT OF ERROR CORAM NOBIS BRINGS THE ERROR OF FACT DIRECTLY BEFORE
THE TRIAL COURT.  HOWEVER, WHEN THE JUDGMENT OF THE TRIAL COURT ALREADY
HAS BEEN AFFIRMED BY THE JUDGMENT OF A SUPERIOR COURT, THEN THE TRIAL
COURT IS BOUND BY THE MANDATE OF THAT SUPERIOR COURT.  UNDER THOSE
CIRCUMSTANCES, IT IS APPROPRIATE TO REQUIRE A PETITIONER TO SECURE,
FROM THAT SUPERIOR COURT, PERMISSION TO FILE HIS PETITION FOR WRIT OF
ERROR CORAM NOBIS IN THE TRIAL COURT WHERE HE SEEKS AN ORDER SETTING
ASIDE THE JUDGMENT ALREADY AFFIRMED BY THE SUPERIOR COURT.  THIS
ADDITIONAL STEP WAS INCLUDED IN THE FLORIDA PROCEDURE WHICH WAS
FAVORABLY CONSIDERED BY THIS COURT IN HYSLER V. FLORIDA, SUPRA. 

IT IS PRECISELY THIS STEP THAT IS BEFORE US IN THE PRESENT
PROCEEDING.  IT IS THE REFUSAL OF THE SUPREME COURT OF ALABAMA TO GRANT
THIS PERMISSION THAT IS UNDER REVIEW.  ON THIS POINT WE HOLD THAT THE
ALABAMA PROCEDURE, FOLLOWING BOTH THE ANCIENT PRECEDENTS OF THE COMMON
LAW AND THE MORE RECENT PRECEDENTS OF FLORIDA AND OF THIS COURT, DOES
NOT VIOLATE THE DUE PROCESS OF LAW REQUIRED BY THE FOURTEENTH
AMENDMENT. 

WE COME NOW TO THE MERITS OF THIS PARTICULAR CASE.  IT IS CHARGED
THAT THE DENIAL BY THE SUPREME COURT OF ALABAMA OF THE PERMISSION HERE
SOUGHT FROM IT AMOUNTED IN ITSELF TO A DENIAL TO THIS PETITIONER OF THE
DUE PROCESS OF LAW TO WHICH HE WAS ENTITLED UNDER ALL THE CIRCUMSTANCES
OF THIS CASE.  THE PETITIONER, HOWEVER, HAD NO MANDATORY RIGHT TO THE
PERMISSION.  THE ISSUE BEFORE US IS NOT THE ISSUE WHICH WOULD HAVE
FACED THE TRIAL COURT IN THE EVENT THAT THE SUPREME COURT OF ALABAMA
HAD GRANTED PERMISSION TO THE PETITIONER TO FILE HIS PETITION FOR WRIT
OF ERROR CORAM NOBIS IN THAT COURT.  THE PROCEEDING HERE IS NOT EVEN A
REVIEW, DE NOVO, OF THE MERITS OF THE REQUEST MADE TO THE SUPREME COURT
OF ALABAMA.  THE ISSUE BEFORE US IS LIMITED TO A DETERMINATION OF
WHETHER, UNDER ALL THE CIRCUMSTANCES, THE ACTION OF THE SUPREME COURT
OF ALABAMA IN DENYING PERMISSION FOR THE PETITIONER TO FILE HIS
PETITION NOT MERELY HAD COMMITTED ERROR BUT HAD DEPRIVED THE PETITIONER
OF LIFE OR LIBERTY WITHOUT DUE PROCESS OF LAW. 

IN PASSING UPON THIS REQUEST THAT COURT WAS NOT BOUND TO ACCEPT AT
FACE VALUE THE ALLEGATIONS OF THE PETITION.  THE ISSUE WAS NOT
SUBMITTED TO IT AS THOUGH ON A DEMURRER.  THAT COURT WAS CALLED UPON TO
DECIDE NOT ONLY WHETHER THIS NEW PETITION, IF TRUE, PRESENTED A
MERITORIOUS GROUND FOR SETTING ASIDE ITS PREVIOUS JUDGMENT, BUT THAT
COURT, IN ITS SUPERVISORY CAPACITY OVER THE ENFORCEMENT OF THE LAW, WAS
CALLED UPON TO DETERMINE ALSO THE REASONABLENESS OF THE ALLEGATIONS
MADE IN THE PETITION AND THE PROBABILITY OR IMPROBABILITY OF THEIR
TRUTH.  THE STANDARD BY WHICH THE SUPREME COURT OF ALABAMA SEEKS TO
GUIDE ITS DETERMINATION IN SUCH A CASE HAS BEEN STATED BY IT IN JOHNSON
V. WILLIAMS, 244 ALA. 391, 394, 13 SO.2D 683, 686, AS FOLLOWS: 

"WE RECOGNIZE IN THIS STATE, AS DOES THE SUPREME COURT OF FLORIDA
(HYSLER V. STATE, 146 FLA. 593, 1 SO.2D 628), THAT THE COMMON LAW WRIT
OF ERROR CORAM NOBIS IS AVAILABLE  ...  AND IS THE APPROPRIATE REMEDY
TO BE FOLLOWED.  SEE 24 C.J.S., CRIMINAL LAW, SEC. 1606.  THE RULE IN
THAT STATE, WHICH WE THINK IS JUST AND PROPER, AND IS HERE ADOPTED,
CALLS FOR A PETITION TO THIS COURT, WHEN THE JUDGMENT OF CONVICTION HAS
BEEN HERE AFFIRMED, FOR LEAVE TO PETITION THE CIRCUIT COURT WHERE THE
CONVICTION WAS OBTAINED FOR A WRIT OF ERROR CORAM NOBIS TO REVIEW SUCH
JUDGMENT.  SUCH APPLICATION SHOULD MAKE AN ADEQUATE SHOWING OF THE
SUBSTANTIALITY OF THE PETITIONER'S CLAIM TO THE SATISFACTION OF THIS
COURT.  A MERE NAKED ALLEGATION THAT A CONSTITUTIONAL RIGHT HAS BEEN
INVADED WILL NOT SUFFICE.  THE APPLICATION SHOULD MAKE A FULL
DISCLOSURE OF THE SPECIFIC FACTS RELIED UPON, AND NOT MERELY
CONCLUSIONS AS TO THE NATURE AND EFFECT OF SUCH FACTS.  THE PROOF MUST
ENABLE THIS COURT TO 'ASCERTAIN WHETHER UNDER SETTLED PRINCIPLES
PERTAINING TO SUCH WRIT THE FACTS ALLEGED WOULD AFFORD AT LEAST PRIMA
FACIE JUST GROUND FOR AN APPLICATION TO THE LOWER COURT FOR A WRIT OF
ERROR CORAM NOBIS.'  AND IN THE EXERCISE OF OUR DISCRETION IN MATTERS
OF THIS CHARACTER, THIS COURT SHOULD LOOK TO THE REASONABLENESS OF THE
ALLEGATIONS OF THE PETITION AND TO THE EXISTENCE OF THE PROBABILITY OF
THE TRUTH THEREOF.  THE SUPREME COURT OF THE UNITED STATES IN HYSLER V.
STATE OF FLORIDA, 315 U.S. 411, 62 S. CT. 688, 691, 86 L. ED. 932, SAID
THAT 'EACH STATE MAY DECIDE FOR ITSELF WHETHER, AFTER GUILT HAS BEEN
DETERMINED BY THE ORDINARY PROCESSES OF TRIAL AND AFFIRMED ON APPEAL, A
LATER CHALLENGE TO ITS ESSENTIAL JUSTICE MUST COME IN THE FIRST
INSTANCE, OR EVEN IN THE LAST INSTANCE, BEFORE A BENCH OF JUDGES RATHER
THAN BEFORE A JURY', AND THAT THE PROCEDURE OUTLINED ABOVE, WHICH WE
HAVE ADOPTED FROM THE FLORIDA COURT, MEETS THE REQUIREMENTS OF THE DUE
PROCESS CLAUSE OF THE CONSTITUTION." 

IT REMAINS TO APPLY THE TEST TO THIS CASE.  THERE IS A PRESUMPTION OF
VALIDITY ATTACHED TO THE FACTUAL BASIS FOR THE ORIGINAL JUDGMENT WHICH
WAS RENDERED ABOUT 18 MONTHS AGO AFTER A JURY TRIAL.  IT HAS BEEN
AFFIRMED UNANIMOUSLY BY A SUPREME COURT OF SEVEN JUDGES AND, IN THIS
VERY PROCEEDING, THAT COURT REACHED A CONCLUSION, BY A VOTE OF SIX TO
ONE, THAT "THE AVERMENTS OF THE (NEW) PETITION ARE UNREASONABLE AND
THAT THERE IS NO PROBABILITY OF TRUTH CONTAINED THEREIN, AND THAT THE
PROPOSED ATTACK UPON THE JUDGMENT IS NOT MERITORIOUS."  EX PARTE
TAYLOR, SUPRA, PP. 670-671. 

IN REVIEWING THAT CONCLUSION, WE EMPHASIZE THE FOLLOWING
CONSIDERATIONS: 

LIKE EVERY CAPITAL CASE, IT IS ONE OF SERIOUS MOMENT.  IN THE STATE
COURTS AND HERE, CONSIDERATION MUST BE GIVEN TO EACH MATERIAL ISSUE OF
FACT AND LAW.  BOTH OPINIONS HANDED DOWN BY THE SUPREME COURT OF
ALABAMA DISCLOSE AN APPRECIATION BY ITS MEMBERS OF THEIR CONSTITUTIONAL
OBLIGATIONS TO THE PETITIONER, THE STATE AND THE NATION. 

SINCE THE PETITIONER WAS SENTENCED, NOVEMBER 19, 1946, TO PAY THE
PENALTY WHICH THE LAW AND THE JURY HAVE PRESCRIBED FOR THE CRIME OF
WHICH HE WAS THEN CONVICTED, THE EXECUTION OF THE SENTENCE HAS BEEN
SUSPENDED REPEATEDLY IN ORDER THAT THE FULLEST CONSIDERATION MIGHT BE
GIVEN BY APPROPRIATE AUTHORITIES TO EVERY SUBSTANTIAL ARGUMENT
PRESENTED ON HIS BEHALF.  THE SUPREME COURT OF ALABAMA HAS STATED ITS
APPRECIATION OF ITS RESPONSIBILITIES IN THIS CASE AS FOLLOWS: 

"WE ARE FULLY MINDFUL OF PETITIONER'S RIGHTS UNDER THE DUE PROCESS
CLAUSE OF THE FEDERAL CONSTITUTION AND THE RESPONSIBILITY RESTING UPON
THIS COURT IN CASES OF THIS CHARACTER.  WE NOT ONLY ARE MINDFUL OF
RESPONSIBILITY SO FAR AS THIS DEFENDANT IS CONCERNED, BUT ALSO FEEL
LIKE RESPONSIBILITY TO SOCIETY IN THE ENFORCEMENT OF THE CRIMINAL LAWS
OF OUR STATE."  EX PARTE TAYLOR, SUPRA, P. 669. 

IF THE NEW PETITION AND ITS SUPPORTING AFFIDAVITS STOOD ALONE OR HAD
TO BE ACCEPTED AS TRUE, THE ISSUE WOULD BE MATERIALLY DIFFERENT FROM
WHAT IT IS.  THE SUPREME COURT OF ALABAMA, HOWEVER, READ THIS PETITION
AND THESE AFFIDAVITS, AS WE MUST READ THEM, IN CLOSE CONNECTION WITH
THE ENTIRE RECORD ALREADY MADE IN THE CASE.  THEY MUST BE TESTED IN
THAT CONTEXT FOR THEIR REASONABLENESS, THE PROBABILITY OF THEIR TRUTH,
THE EFFECTIVENESS OF THE ATTACK THEY MAKE ON THE ORIGINAL JUDGMENT AND
THEIR RELATIONSHIP TO THE GENERAL ENFORCEMENT OF LAW WITH JUSTICE TO
ALL. 

THE NEW PETITION AND THE AFFIDAVITS HAVE INHERENT ELEMENTS OF
STRENGTH AND WEAKNESS BEARING UPON THEIR CREDIBILITY TO WHICH THE
SUPREME COURT OF ALABAMA WAS ENTITLED TO GIVE CONSIDERATION.  IN
CONTRAST TO THE SITUATION PRESENTED IN MANY OTHER CASES WHERE A
PETITION FOR WRIT OF ERROR CORAM NOBIS HAS BEEN RELIED UPON, THIS
PETITION CONTAINS NO CHARGE THAT THERE WAS ANY FALSE TESTIMONY
PRESENTED AT THE TRIAL (EXCEPT FOR ITS REFERENCE TO TESTIMONY BY
SERGEANT WILKES WHICH REFERENCE THE RECORD SHOWS IS PLAINLY
ERRONEOUS).  THE PETITIONER BASES HIS CLAIMS UPON EVIDENCE NOT
PRESENTED AT THE ORIGINAL TRIAL.  THIS CONSISTS OF EVIDENCE OF COERCION
ALLEGED TO HAVE BEEN APPLIED TO THE PETITIONER BY POLICE OFFICERS AT
TIMES NOT COVERED BY THE TESTIMONY GIVEN AT THE ORIGINAL TRIAL.  ALL OF
THIS ADDITIONAL EVIDENCE, IF TRUE, MUST HAVE BEEN KNOWN TO THE
PETITIONER AT THE TIME OF HIS TRIAL BUT IT IS CLAIMED THAT HE CONCEALED
IT EVEN FROM HIS OWN COUNSEL.  IT IS NEWLY DISCLOSED EVIDENCE, RATHER
THAN NEWLY DISCOVERED EVIDENCE, AND ITS CREDIBILITY IN THE EYES OF THE
SUPREME COURT OF ALABAMA MAY WELL HAVE BEEN AFFECTED BY THAT FACT.  THE
NEW PETITION DOES NOT DENY THE GUILT OF THE PETITIONER OR DENY ANY OF
THE ACTS UPON WHICH HIS CONVICTION WAS BASED.  IT CLAIMS MERELY THAT
THE COERCION APPLIED TO THE PETITIONER WAS SUCH THAT IT WOULD BE A
SUFFICIENT BASIS FOR THE EXCLUSION, FROM A NEW TRIAL, OF THE EVIDENCE
OF CERTAIN CONFESSIONS AND SUBSEQUENT CONDUCT OF THE PETITIONER THAT
WAS USED AGAINST HIM AT THE ORIGINAL TRIAL. 

THE PETITION CONTAINS NO CHARGES THAT THE STATE'S ATTORNEY MADE USE
OF ANY FALSE TESTIMONY OR THAT HE KNEW OF ANY OF THE COERCION RELIED
UPON IN THE NEW PETITION. 

MORE SERIOUS THAN THIS LACK OF COMPELLING FORCE TO THE PETITIONER'S
ATTACK ARE THE FOLLOWING CIRCUMSTANCES WHICH WERE APPROPRIATE FOR
CONSIDERATION BY THE SUPREME COURT OF ALABAMA IN PASSING UPON THE
PROBABLE TRUTH OR FALSITY OF THOSE ALLEGATIONS: 

1.  THE ONLY AFFIDAVITS PRESENTED ARE THOSE OF THE PETITIONER HIMSELF
AND OF THREE PERSONS, EACH OF WHOM WAS AN ASSOCIATE OF THE PETITIONER,
ARRESTED AND DETAINED WITH HIM BY THE PRICHARD POLICE, JUNE 29-JULY 3,
1946, UNDER A CHARGE OF SOME CRIME NOT CONNECTED WITH THE RAPE.  ONE OF
THESE AFFIANTS IS SERVING A TEN-YEAR SENTENCE IN THE KILBY PRISON FOR
ROBBERY.  WITH THE EXCEPTION OF ONE INSTANCE ON JUNE 29, NONE OF THE
THREE ASSOCIATES CLAIMS TO HAVE SEEN THE ALLEGED BEATINGS OF THE
PETITIONER, ALTHOUGH EACH CLAIMS TO HAVE HEARD THE BEATINGS BEING
ADMINISTERED.  THE CHARGES AS TO THE ALLEGED BEATINGS ARE MADE IN SUCH
EXTREME TERMS THAT MARKS OF SUCH BEATINGS, IF THEY ACTUALLY OCCURRED,
PROBABLY WOULD HAVE BEEN EVIDENT ON JULY 3, WHEREAS THE TESTIMONY AT
THE TRIAL AS TO THE PHYSICAL CONDITION OF THE PETITIONER ON THAT DAY IS
TO THE CONTRARY AND THE APPEARANCE OF THE PETITIONER IN THE
PHOTOGRAPHS, TAKEN ON JULY 3, WAS FOUND BY THE SUPREME COURT OF ALABAMA
TO LEND NO SUPPORT TO THESE STATEMENTS IN THE AFFIDAVITS. 

2.  THE PETITION CHARGES SERGEANT C.D. WILKES OF THE PRICHARD POLICE
FORCE WITH PERJURING HIMSELF "BY FALSELY TESTIFYING THAT PETITIONER WAS
NOT SUBJECTED TO ANY MISTREATMENT IN CONNECTION WITH MAKING SAID
CONFESSION."  SERGEANT WILKES, HOWEVER, GAVE NO TESTIMONY ON THAT
SUBJECT.  AT THE TRIAL HE TESTIFIED ONLY AS TO HIS BEING ON DUTY WHEN
THE PETITIONER WAS ARRESTED ON JUNE 29, AS TO THE IDENTIFICATION MADE
OF THE PETITIONER BY THE PROSECUTRIX, AS TO THE FACT THAT HE TALKED
WITH THE PETITIONER AT 9 P.M. ON JULY 2, AND AS TO THE MANNER IN WHICH
THE PETITIONER HAD VOLUNTEERED TO MAKE HIS CONFESSION AT 3 A.M. ON JULY
3.  NOTHING WAS SAID BY SERGEANT WILKES ON DIRECT OR CROSS-EXAMINATION
OR WAS EVEN ASKED OF HIM ON CROSS-EXAMINATION AS TO ANY MISTREATMENT OF
THE PETITIONER OR AS TO ANY SUBJECT AS TO WHICH THERE APPEARS TO BE ANY
CONFLICT OF FACT.  THE RECORD OF THE TRIAL DEMONSTRATES ON ITS FACE
THAT THE CHARGE OF PERJURY IS WITHOUT FOUNDATION. 

3.  IN THE TRIAL RECORD THERE IS NO EVIDENCE, EITHER ON DIRECT OR
CROSS-EXAMINATION OF ANY WITNESS, OF ANY PHYSICAL OR MENTAL COERCION,
OR OF ANY INDUCEMENT OR PROMISE BEARING UPON THE VOLUNTEERED, DETAILED
AND REPEATED CONFESSIONS BY THE PETITIONER OF HIS CONDUCT, THE
IDENTIFICATION OF HIS VICTIM OR HIS DESIGNATION, BY SKETCH AND ON THE
PREMISES, OF THE LOCALITIES OF MATERIAL OCCURRENCES.  ALTHOUGH THE
ALERT AND DILIGENT COUNSEL FOR THE PETITIONER ENDEAVORED AT THE TRIAL
TO TEST ON EACH OCCASION THE VOLUNTARINESS OF EVERY STATEMENT IN THE
NATURE OF A CONFESSION THAT WAS MADE BY THE PETITIONER, HE DID NOT
SUCCEED IN CONVINCING THE COURT THAT ANY OF THEM SHOULD BE EXCLUDED AS
HAVING BEEN INVOLUNTARILY MADE.  HIS EFFORTS RESULTED IN NOTHING MORE
THAN ESTABLISHING THAT MANY WITNESSES HAD LITTLE OR NO KNOWLEDGE AS TO
THE PRESENCE OR ABSENCE OF COERCION DURING EXTENDED PERIODS PRIOR TO
THE PETITIONER'S CONFESSIONS, ALTHOUGH THEY TESTIFIED TO THE
VOLUNTARINESS OF THE CONFESSIONS AT THE TIME THEY WERE MADE AND FOR
VARYING PERIODS PRIOR THERETO.  THE SUPREME COURT OF ALABAMA SAID:
"THE QUESTION OF THE VOLUNTARY CHARACTER OF THE CONFESSION WAS DULY
CONSIDERED AND TREATED IN THE OPINION ON FORMER APPEAL.  NOR DID THE
RECORD CONTAIN THE SLIGHTEST INDICATION THAT THE DEFENDANT, A NEGRO
TWENTY YEARS OF AGE, WAS IGNORANT AND IN ANY MANNER SUBNORMAL."  EX
PARTE TAYLOR, SUPRA, P. 669. 

4.  NO WITNESS TESTIFIED AT THE TRIAL TO HAVING SEEN ANY EVIDENCE OF
PHYSICAL VIOLENCE ON THE BODY OF THE PETITIONER.  G.M. PORTER, THE
MEMBER OF THE PRICHARD POLICE WHO WAS ON DUTY MUCH OF THE TIME AT THE
JAIL AND WHO BROUGHT THE PETITIONER FROM HIS CELL IN ANSWER TO
PETITIONER'S REQUEST ON JULY 3 FOR AN OPPORTUNITY TO MAKE HIS INITIAL
CONFESSION, EXPRESSLY TESTIFIED ON CROSS-EXAMINATION THAT AT THAT TIME
THERE WERE NO SIGNS OF THE PETITIONER HAVING BEEN MISTREATED.  THE
PHOTOGRAPHS TAKEN THAT AFTERNOON ARE DESCRIBED IN THE OPINION OF THE
SUPREME COURT OF ALABAMA AS DISCLOSING "NO INDICATIONS ON THE BODY OF
ANY PHYSICAL VIOLENCE AS SET FORTH IN THE PETITION."  EX PARTE TAYLOR,
SUPRA, P. 669. 

5.  STILL MORE STRIKING ARE THE STATEMENTS MADE BY THE PETITIONER
HIMSELF ON JULY 3.  THESE WERE MADE UNDER CIRCUMSTANCES SO DISARMING
AND SELF-CONFIRMATORY AS TO SUGGEST THE REASONABLENESS OF THEIR
CREDIBILITY BY THE JURY AND LATER BY THE SUPREME COURT ON ITS REVIEW OF
THE RECORD.  WHEN READ IN FULL, THE STATEMENTS OF THE PETITIONER
THROUGHOUT JULY 3 ARE SO FREE IN MANNER, DETAILED IN CONTENT AND
AFFIRMATIVE IN THEIR NATURE THAT THEY CARRY OBVIOUS EARMARKS OF BEING
THE TRUTH.  THE RECORD SHOWS THAT AT 3 A.M. ON JULY 3 THE PETITIONER
CALLED FROM HIS CELL THAT HE WISHED TO TELL "ALL OF IT" AND "GET IT ALL
OFF HIS CHEST."  SHORTLY THEREAFTER, HE TOLD HIS STORY BEFORE THE MAYOR
OF PRICHARD AND OTHERS.  HE REPEATED IT TO STILL OTHERS WHO CAME IN
LATER.  HE VOLUNTEERED FURTHER DETAILS WHILE RIDING IN A CAR TO THE
SCENE OF THE CRIME.  HIS STATEMENTS IN THE CAR WERE THEN AND THERE
WRITTEN DOWN BY AN ASSISTANT COUNTY SOLICITOR, WERE SIGNED BY THE
PETITIONER AND WERE SUPPLEMENTED BY A SKETCH WHICH THE PETITIONER DREW
HIMSELF.  THESE SIGNED STATEMENTS AND THIS SKETCH WERE INTRODUCED IN
EVIDENCE ON CROSS-EXAMINATION OF THE ASSISTANT COUNTY SOLICITOR WHO HAD
BEEN CALLED AS A WITNESS ON BEHALF OF THE PETITIONER.  LATER THAT DAY,
THE PETITIONER MADE A FURTHER DETAILED STATEMENT IN QUESTION AND ANSWER
FORM.  HE PERSONALLY IDENTIFIED THE VICTIM OF HIS CRIME IN THE PRESENCE
OF SEVERAL WITNESSES AND SHE IDENTIFIED HIM.  IN HIS TESTIMONY GIVEN IN
THE PRESENCE OF THE MAYOR, THE PETITIONER STATED UNEQUIVOCALLY THAT HE
HAD NOT BEEN BEATEN OR COERCED.  EXCERPTS FROM THIS TESTIMONY ARE SET
FORTH IN THE MARGIN AS RETOLD BY THE MAYOR AT THE TRIAL.  FN8 

6.  THE PETITION ALLEGES THAT THE PETITIONER FALSELY TOLD HIS OWN
ATTORNEY THAT HE HAD NOT BEEN BEATEN AND THAT HE SO TOLD HIS ATTORNEY
BECAUSE OF FEAR OF FURTHER REPRISALS.  THIS ATTORNEY WAS THE ONE WHO
HAD BEEN APPOINTED BY THE COURT TO DEFEND THE PETITIONER AND LATER
PRIVATELY RETAINED FOR THE PETITIONER.  STILL LATER HE WAS APPOINTED BY
THE COURT TO HANDLE THE CASE ON APPEAL.  THERE IS NOTHING OTHER THAN
THIS PETITION TO SUGGEST THAT THE PETITIONER AT ANY TIME MISLED HIS
ATTORNEY, OR LACKED CONFIDENCE IN HIM, OR HAD REASON TO LACK CONFIDENCE
IN HIM.  BOTH THE RECORD AND THE ATTORNEY'S CONDUCT OF THE TRIAL AND
APPEAL ARE THOROUGHLY CONSISTENT WITH THE PETITIONER'S HAVING TOLD HIS
ATTORNEY THAT HE HAD NOT BEEN BEATEN AND THERE IS NOTHING, OTHER THAN
THE NEW PETITION, TO SHOW THAT SUCH STATEMENT WAS FALSE.  THE TRIAL
TOOK PLACE ON NOVEMBER 19, 1946, AND IN THAT CONNECTION PETITIONER WAS
DETAINED IN THE MOBILE COUNTY JAIL RATHER THAN WITH THE PRICHARD
POLICE.  AFTER HIS CONVICTION THE PETITIONER WAS SENT TO KILBY PRISON
IN MONTGOMERY, OVER 200 MILES AWAY. 

THE SUPREME COURT OF ALABAMA CONCLUDED: 

"THE TRIAL WAS CONDUCTED WITH MUCH CARE.  THERE IS NOTHING IN THE
RECORD ON FORMER APPEAL TO INDICATE THE SLIGHTEST APPEAL TO PREJUDICE,
NOR WAS A SINGLE UNTOWARD INCIDENT RECORDED.  WE THINK IT IS ASKING
ENTIRELY TOO MUCH OF THE COURT TO BELIEVE THAT THIS DEFENDANT, IN THE
SECRECY OF CONSULTATION WITH HIS OWN ABLE COUNSEL, WOULD SAY TO COUNSEL
IN SUBSTANCE THAT THERE WAS NOTHING UPON WHICH TO BASE AN OBJECTION TO
HIS CONFESSIONS, SOLELY BECAUSE HE WAS UNDER FEAR GENERATED BY
TREATMENT WHICH HE CLAIMS WAS ACCORDED HIM ON JULY 3, NEARLY FOUR
MONTHS PREVIOUS."  EX PARTE TAYLOR, SUPRA, P. 670. 

THE PETITIONER'S TRIAL ATTORNEY HAS SUBMITTED NO AFFIDAVIT AND HAS
NOT APPEARED IN THE PRESENT PROCEEDING.    FOR THESE REASONS, WE
CONCLUDE NOT ONLY THAT THE ALABAMA PROCEDURE IS IN ACCORDANCE WITH DUE
PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT, BUT THAT THE DENIAL BY
THE SUPREME COURT OF ALABAMA OF THE PERMISSION THUS SOUGHT BY THE
PETITIONER TO FILE A PETITION FOR WRIT OF ERROR CORAM NOBIS IN THE
CIRCUIT COURT OF MOBILE COUNTY, ALABAMA, WAS NOT, UNDER ALL THE
CIRCUMSTANCES, SUCH AN ARBITRARY ACTION AS IN ITSELF TO AMOUNT TO A
DEPRIVATION OF DUE PROCESS OF LAW. 

THE SUPREME COURT OF ALABAMA WAS ACTING WITHIN ITS CONSTITUTIONAL
AUTHORITY WHEN, IN ITS SUPERVISORY CAPACITY OVER THE PROCEDURE IN THE
CRIMINAL TRIALS OF THAT STATE, IT DENIED TO PETITIONER THE RIGHT TO
FILE THIS PETITION FOR WRIT OF ERROR CORAM NOBIS AND STATED THAT "UPON
DUE CONSIDERATION WE CONCLUDE THAT THE AVERMENTS OF THE PETITION ARE
UNREASONABLE AND THAT THERE IS NO PROBABILITY OF TRUTH CONTAINED
THEREIN, AND THAT THE PROPOSED ATTACK UPON THE JUDGMENT IS NOT
MERITORIOUS."  EX PARTE TAYLOR, SUPRA, PP. 670-671. 

ACCORDINGLY, THE JUDGMENT OF THE SUPREME COURT OF ALABAMA IS
AFFIRMED. 

FN1  "  ...  NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY,
OR PROPERTY, WITHOUT DUE PROCESS OF LAW; ...  "  U.S. CONST. AMEND.
XIV, SEC. 1. 

FN2  THE SUPREME COURT OF ALABAMA, IN THE APPELLATE PROCEEDING, SAID:
"COUNSEL APPOINTED BY THE COURT FOR THE DEFENSE HAS VERY DILIGENTLY
PRESENTED THE QUESTIONS RAISED IN THE RECORD, BOTH BY ORAL ARGUMENT AND
A FULL AND COMPLETE BRIEF."  TAYLOR V. STATE, 249 ALA. 130, 133, 30
SO.2D 256, 258.  IN THE PRESENT PROCEEDING THAT COURT SAID:  "UPON THE
TRIAL OF THIS CAUSE THE PETITION ADMITS THAT THE DEFENDANT WAS
REPRESENTED BY ABLE COUNSEL."  EX PARTE TAYLOR, 249 ALA. 667, 669, AND
SEE P. 670, 32 SO.2D 659, 660, 661. 

FN3  THE STATE IN ITS BRIEF HERE SAYS THAT "IT IS NOT UNUSUAL FOR
PHOTOGRAPHS TO BE TAKEN OF DEFENDANTS IN CHARGES OF THIS NATURE.  IT IS
SOMETIMES ANTICIPATED BY LAW ENFORCEMENT OFFICERS THAT A VOLUNTARY
CONFESSION WILL LATER BE REPUDIATED.  PHOTOGRAPHS HAVE BEEN TAKEN AND
INTRODUCED IN EVIDENCE BEFORE.  JOHNSON V. STATE, 242 ALA. 278(282), 5
SO.2D 632(635)."  AT THE ORIGINAL TRIAL NO REPUDIATION OF THE
CONFESSIONS HAD BEEN MADE AND NO TESTIMONY HAD BEEN INTRODUCED
SUPPORTING ANY CHARGE OF COERCION OF THE PETITIONER BY PHYSICAL
VIOLENCE OR OTHERWISE.  THE PHOTOGRAPHS WERE INTRODUCED IN THE CASE
ONLY AFTER AFFIDAVITS CHARGING COERCIVE PHYSICAL VIOLENCE HAD BEEN
FILED IN THE PRESENT PROCEEDING. 

FN4  "IF  ...  THERE WAS ERROR IN FACT IN THE PROCEEDINGS, NOT ERROR
IN LAW, A WRIT OF ERROR CORAM NOBIS OR CORAM VOBIS MIGHT ISSUE TO THE
TRIAL COURT TO ENABLE IT TO CORRECT THE ERROR.  ... IF THE CAUSE WERE
IN THE K.B. (KING'S BENCH), THE WRIT WOULD BE CORAM NOBIS, BEFORE US,
AS THE RECORD REMAINING IN THE COURT WHERE THE KING IS CONSTRUCTIVELY;
IF IT WERE IN THE COMMON PLEAS, THE WRIT WOULD BE CORAM VOBIS, BEFORE
YOU, SINCE THE RECORD REMAINS THEN BEFORE THE JUSTICES OF THAT COURT." 
COOLEY'S BLACKSTONE'S COMMENTARIES (4TH ED., ANDREWS, 1899), BOOK III,
P.*  406 N. 2. 

SEE ALSO, OPINION BY MR. JUSTICE CLIFFORD, ON CIRCUIT, IN UNITED
STATES V. PLUMER, 27 FED. CAS. 561, 573, NO. 16,056. 

FN5  SEE E.G., HYSLER V. STATE, 146 FLA. 593, 1 SO.2D 628, AFFIRMED,
315 U.S. 411; MCCALL V. STATE, 136 FLA. 349, 186 SO. 802; CHAMBERS V.
STATE, 117 FLA. 642, 158 SO. 153; LAMB V. STATE, 91 FLA. 396, 107 SO.
535; AND SEE AS TO THE FEDERAL PRACTICE, FED. R. CRIM. P., 32, 33, 35
AND 36; REID V. UNITED STATES, 149 F.2D 334(C.C.A.5TH); YOUNG V. UNITED
STATES, 138 F.2D 838(C.C.A.5TH); UNITED STATES V. GARDZIELEWSKI, 135
F.2D 271(C.C.A.7TH); ROBINSON V. JOHNSTON, 118 F.2D 998(C.C.A.9TH);
STRANG V. UNITED STATES, 53 F.2D 820(C.C.A.5TH); UNITED STATES V.
PLUMER, 27 FED. CAS. 561, 571-574, NO. 16,056.  SEE ALSO, UNITED STATES
V. SMITH, 331 U.S. 469, 475-476, N. 4; UNITED STATES V. MAYER, 235 U.S.
55.  CF. UNITED STATES V. NORSTRAND CORP., 168 F.2D 481(C.C.A.2D),
DECIDED MAY 26, 1948; MOORE AND ROGERS, FEDERAL RELIEF FROM CIVIL
JUDGMENTS, 55 YALE L.J. 623, 669-674(1945-1946). 

FN6  "SUCH A STATE PROCEDURE OF COURSE MEETS THE REQUIREMENTS OF THE
DUE PROCESS CLAUSE.  VINDICATION OF CONSTITUTIONAL RIGHTS UNDER THE DUE
PROCESS CLAUSE DOES NOT DEMAND UNIFORMITY OF PROCEDURE BY THE FORTY
EIGHT STATES.  EACH STATE IS FREE TO DEVISE ITS OWN WAY OF SECURING
ESSENTIAL JUSTICE IN THESE SITUATIONS.  THE DUE PROCESS CLAUSE DID NOT
STEREOTYPE THE MEANS FOR ASCERTAINING THE TRUTH OF A CLAIM THAT THAT
WHICH DULY APPEARS AS THE ADMINISTRATION OF INTRINSIC JUSTICE WAS SUCH
MERELY IN FORM, THAT IN FACT IT WAS A PERVERSION OF JUSTICE BY THE LAW
OFFICERS OF THE STATE.  EACH STATE MAY DECIDE FOR ITSELF WHETHER, AFTER
GUILT HAS BEEN DETERMINED BY THE ORDINARY PROCESSES OF TRIAL AND
AFFIRMED ON APPEAL, A LATER CHALLENGE TO ITS ESSENTIAL JUSTICE MUST
COME IN THE FIRST INSTANCE, OR EVEN IN THE LAST INSTANCE, BEFORE A
BENCH OF JUDGES RATHER THAN BEFORE A JURY. 

"FLORIDA THEN HAD AMPLE MACHINERY FOR CORRECTING THE CONSTITUTIONAL
WRONG OF WHICH HYSLER COMPLAINED.  BUT IT REMAINS TO CONSIDER WHETHER
IN REFUSING HIM RELIEF THE SUPREME COURT OF FLORIDA DENIED A PROPER
APPEAL TO ITS CORRECTIVE PROCESS FOR PROTECTING A RIGHT GUARANTEED BY
THE FOURTEENTH AMENDMENT."  HYSLER V. FLORIDA, 315 U.S. 411, 416-417. 

SEE ALSO, BUTE V. ILLINOIS, 333 U.S. 640, 650-654, AS TO THE SCOPE
WHICH STATES ENJOY IN PROVIDING THEIR OWN PROCEDURES WITHIN THE MEANING
OF DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT. 

FN7  SEE ALSO, EX PARTE LEE, 248 ALA. 246, 27 SO.2D 147, CERT.
DENIED, SUB NOM. LEE V. ALABAMA, 329 U.S. 808; EX PARTE BURNS, 247 ALA.
98, 22 SO.2D 517; SMITH V. STATE, 245 ALA. 161, 16 SO.2D 315; REDUS V.
WILLIAMS, 244 ALA. 459, 13 SO.2D 561, CERT. DENIED, 320 U.S. 775; BROWN
V. STATE, 32 ALA. APP. 500, 27 SO.2D 226.  WHILE, FOR REASONS SET FORTH
IN THE RESPECTIVE OPINIONS, THE PETITION FOR WRIT OF ERROR CORAM NOBIS
OR FOR PERMISSION TO FILE SUCH A PETITION HAS BEEN DENIED IN EACH OF
THE FOREGOING CASES IN THE SUPREME COURT OF ALABAMA, NEVERTHELESS, THE
COURT OF APPEALS OF ALABAMA, IN THE LAST CASE CITED, IN 1946, GRANTED
LEAVE FOR A PETITIONER TO PRESENT HIS PETITION FOR WRIT OF ERROR CORAM
NOBIS TO THE CIRCUIT COURT OF RUSSELL COUNTY. 

FN8  GLEN V. DISMUKES, MAYOR OF PRICHARD, ON CROSS-EXAMINATION BY
COUNSEL FOR THE PETITIONER, TESTIFIED AS TO THE APPEARANCE AND CONDUCT
OF THE PETITIONER IMMEDIATELY PRECEDING HIS INITIAL CONFESSION AT ABOUT
3 A.M. JULY 3, AS FOLLOWS: 

"Q.  AND YOU DO NOT KNOW WHETHER, OR NOT, THEY ACTUALLY INFLICTED ANY
VIOLENCE ON HIM BEFORE YOU GOT THERE? 

"A.  HE DIDN'T APPEARED (APPEAR) TO BE FRIGHTENED IN ANY WAY. 

"Q.  BUT YOU DON'T KNOW.  HE DIDN'T APPEAR TO BE FRIGHTENED? 

"A.  NO. 

"Q.  DID HE SEEM TO BE WHOLLY AT EASE? 

"A.  PERFECTLY AT EASE. 

"Q.  I SEE.  YOU CAME IN THERE AT THREE O'CLOCK IN THE MORNING, AND
FOUND THIS NEGRO BOY AND TWO POLICEMEN, AND HE SEEMED TO BE PERFECTLY
AT EASE? 

"A.  YES, SIR. 

"Q.  DIDN'T SEEM TO BE UPSET AT ALL? 

"A.  NOT AT ALL. 

"Q.  DIDN'T APPEAR TO BE NERVOUS? 

"A.  NO. 

"Q.  PERFECTLY FRIENDLY? 

"A.  RATHER PLEASANT. 

"Q.  RATHER PLEASANT, WELL, AND YOU DON'T KNOW WHETHER, OR NOT, AFTER
YOU TALKED TO HIM THAT THEY MADE ANY PROMISES OR THREATS, DO YOU, MR.
DISMUKES? 

"A.  NO, SIR." 

LATER THAT DAY THE MAYOR VISITED THE SCENE OF THE CRIME WITH THE
PETITIONER AND OTHERS AND, AFTER THEIR RETURN TO THE OFFICE OF THE
CHIEF OF POLICE, THE PETITIONER MADE REPLIES TO QUESTIONS ASKED OF HIM
BY THE STATE SOLICITOR.  THESE QUESTIONS AND ANSWERS WERE RECALLED BY
THE MAYOR IN HIS ORAL TESTIMONY AND WERE THUS INTRODUCED AT THE TRIAL. 
SOME OF THIS TESTIMONY OF THE MAYOR IN RESPONSE TO DIRECT EXAMINATION
BY THE STATE SOLICITOR WAS AS FOLLOWS: 

"Q.  NOW, MR. DISMUKES, ON THAT TIME AND PLACE THERE IN THE OFFICE TO
WHICH WE REFERRED, DO YOU RECALL ME ASKING HIM (THE PETITIONER), 'WHEN
WERE YOU ARRESTED ON THIS CHARGE, SAMUEL?', AND HIM ANSWERING, 'I WAS
ARRESTED SATURDAY NIGHT AROUND MIDNIGHT.'  DO YOU RECALL THAT? 

"A.  YES, SIR. 

"Q.  THEN DO YOU RECALL ME ASKING, 'AND YOU HAVE BEEN IN JAIL SINCE
THAT TIME?'  AND HE ANSWERING, 'YES, SIR.' 

"A.  YES, SIR. 

"Q.  DO YOU RECALL ME SAYING, 'NOW, SINCE YOU HAVE BEEN IN JAIL,
SAMUEL, HAVE YOU BEEN PROPERLY TREATED?'  DO YOU RECALL HIM ANSWERING,
'YES, SIR.' 

"A.  YES, SIR. 

"Q.  DO YOU RECALL ME ASKING HIM, 'HAVE ANY OF THE OFFICERS
MISTREATED YOU, OR THREATENED TO BEAT YOU, OR OFFERED YOU ANY REWARD,
TO GET YOU TO TALK?'  AND HIS ANSWER BEING, 'NO, SIR.' 

"A.  THAT IS RIGHT. 

"Q.  DO YOU RECALL ME ASKING HIM, 'HAVE ANY OF THEM BEAT YOU OR
KICKED YOU?'  AND HE ANSWERING, 'NO, SIR.' 

"A.  THAT'S RIGHT. 

"Q.  DO YOU RECALL ME ASKING HIM, 'NOW, A FEW MINUTES AGO WHEN DR.
GRUBBS TOOK PICTURES OF YOU NAKED, WERE THERE ANY MARKS ON YOUR BODY
THAT WERE PUT THERE BY THE POLICE?'  AND HIM ANSWERING, 'NO, SIR.' 

"A.  YES, SIR." 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE DISSENTING OPINION IS WRITTEN AS THOUGH THIS COURT WERE A COURT
OF CRIMINAL APPEALS FOR REVISION OF CONVICTIONS IN THE STATE COURTS. 
IT IS WRITTEN AS THOUGH WE WERE ASKED TO CONSIDER INDEPENDENTLY, AND AS
A REVISORY APPELLATE TRIBUNAL WHICH HAD POWER TO DO SO, WHETHER A
CONVICTION IN THE COURTS OF ALABAMA WAS BASED UPON A COERCED
CONFESSION.  ONE WOULD HARDLY GATHER FROM THE DISSENTING OPINION THAT A
TRIAL WAS HAD IN ALABAMA UNDER THE BEST SAFEGUARDS TO WHICH A DEFENDANT
IN OUR COURTS IS ENTITLED; THAT HE WAS DEFENDED BY COUNSEL CONCEDEDLY
ABLE WHO EXERTED ALL HIS PROFESSIONAL SKILL ON BEHALF OF HIS CLIENT;
THAT THE TRIAL JUDGE GUIDED THE PROCEEDINGS WITH COMPETENCE AND
SCRUPULOSITY; THAT THEN FOLLOWED A CAREFUL REVIEW OF THE TRIAL ON
APPEAL, RESULTING IN AN AFFIRMANCE OF THE JUDGMENT OF CONVICTION BY THE
HIGHEST COURT OF ALABAMA. 

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES REQUIRE STILL
FURTHER PROTECTION.  A STATE MUST FURNISH CORRECTIVE PROCESS TO ENABLE
A CONVICTED PERSON, EVEN AFTER SUCH PROCEEDINGS AS I HAVE OUTLINED, TO
ESTABLISH THAT IN FACT A SENTENCE WAS PROCURED UNDER CIRCUMSTANCES
WHICH OFFEND "THE FUNDAMENTAL CONCEPTIONS OF JUSTICE WHICH LIE AT THE
BASE OF OUR CIVIL AND POLITICAL INSTITUTIONS."  MOONEY V. HOLOHAN, 294
U.S. 103, 112.  SUCH RE-INSURANCE THAT NO ONE IS PUNISHED IN VIOLATION
OF BASIC NOTIONS OF JUSTICE DOES NOT OF COURSE REQUIRE DETERMINATION OF
SUCH A CLAIM BY ANOTHER JURY.  "EACH STATE MAY DECIDE FOR ITSELF
WHETHER, AFTER GUILT HAS BEEN DETERMINED BY THE ORDINARY PROCESSES OF
TRIAL AND AFFIRMED ON APPEAL, A LATER CHALLENGE TO ITS ESSENTIAL
JUSTICE MUST COME IN THE FIRST INSTANCE, OR EVEN IN THE LAST INSTANCE,
BEFORE A BENCH OF JUDGES RATHER THAN BEFORE A JURY."  HYSLER V.
FLORIDA, 315 U.S. 411, 417. 

ALABAMA, IT CANNOT BE DENIED, PROVIDES FOR SUCH CORRECTIVE PROCESS. 
IF ALABAMA CHOSE TO LEAVE THE DETERMINATION OF THE REASONABLENESS OF
SUCH A CLAIM AS IS HERE MADE FINALLY AND ON THE MERITS TO THE SUPREME
COURT OF ALABAMA, OF COURSE WE COULD NOT SAY THAT ALABAMA WAS
DISREGARDFUL OF THE REQUIREMENTS OF DUE PROCESS.  NOR, IN VIEW OF THE
CIRCUMSTANCES OF THIS CASE, COULD WE IN ALL FAIRNESS SAY THAT THE
SUPREME COURT OF ALABAMA COULD NOT HAVE REASONABLY REJECTED THAT CLAIM
MADE AS BELATEDLY AS IT WAS AND HAVING REGARD TO THE HUMAN
PROBABILITIES OF THE SITUATION.  IF THE SUPREME COURT OF ALABAMA COULD,
AS A MATTER OF DUE PROCESS, HAVE REJECTED ON THE MERITS THE CLAIM THAT
THE VERY FOUNDATION OF THE ORIGINAL PROCEEDINGS, RESULTING IN THE
JUDGMENT OF CONVICTION, WAS UNDERMINED BECAUSE OF AN INFRACTION OF THE
UNITED STATES CONSTITUTION, IT WOULD DISREGARD REASON FOR THIS COURT TO
HOLD THAT A CONSCIENTIOUS STATE COURT COULD NOT HAVE CONCLUDED, AS THE
SUPREME COURT OF ALABAMA HAS CONCLUDED, THAT, ON THE TOTALITY OF THE
CIRCUMSTANCES, THE PROBABILITIES WERE SO STRONG AGAINST THE TRUTH OF
THE ALLEGATIONS ON WHICH THE CLAIM WAS BASED THAT IT DID NOT REQUIRE A
HEARING OF WITNESSES TO REJECT IT.  IN REACHING SUCH A CONCLUSION THE
SUPREME COURT OF ALABAMA WAS ENTITLED TO CONSIDER THE CIRCUMSTANCES OF
THE ORIGINAL TRIAL, THE MANNER OF ITS CONDUCT BY THE TRIAL JUDGE, THE
PROFESSIONAL ABILITY WITH WHICH THE DEFENDANT WAS REPRESENTED, THE
BEHAVIOR OF THE ACCUSED THROUGHOUT THE PROCEEDINGS, AND, IN THE LIGHT
OF ALL THESE CIRCUMSTANCES, THE WEIGHT TO BE ATTACHED TO THE AFFIDAVITS
ON WHICH HIS PRESENT PETITION IS BASED. 

FOR ME, THE ESSENCE OF THE DECISION OF THE ALABAMA SUPREME COURT IS
CONTAINED IN THE FOLLOWING SENTENCE:  "WE THINK IT IS ASKING ENTIRELY
TOO MUCH OF THE COURT TO BELIEVE THAT THIS DEFENDANT, IN THE SECRECY OF
CONSULTATION WITH HIS OWN ABLE COUNSEL, WOULD SAY TO COUNSEL IN
SUBSTANCE THAT THERE WAS NOTHING UPON WHICH TO BASE AN OBJECTION TO HIS
CONFESSIONS, SOLELY BECAUSE HE WAS UNDER FEAR GENERATED BY TREATMENT
WHICH HE CLAIMS WAS ACCORDED HIM ON JULY 3, NEARLY FOUR MONTHS
PREVIOUS."  249 ALA. 667, 670.  SINCE I CANNOT DEEM THE REASONING BY
WHICH THIS CONCLUSION WAS REACHED AS UNSUSTAINABLE IN REASON, I AM NOT
ENTITLED TO REJECT IT, AND I THEREFORE AGREE WITH THIS COURT'S
OPINION. 

BUT THIS MERELY CARRIES ME TO SUSTAINING THE JUDGMENT OF THE ALABAMA
SUPREME COURT.  THERE IS NOT NOW BEFORE US ANY RIGHT THAT THE
PETITIONER MAY HAVE UNDER THE JUDICIAL CODE TO BRING AN INDEPENDENT
HABEAS CORPUS PROCEEDING IN THE DISTRICT COURT OF THE UNITED STATES. 
FN1 

FN1  SEE ALSO SEC. 2254 OF THE LEGISLATION REVISING THE JUDICIAL
CODE, H.R. 3214, 80TH CONG., 2D SESS., AS PASSED BY CONGRESS ON JUNE
16, 1948: 

"STATE CUSTODY:  REMEDIES IN STATE COURTS. 

"AN APPLICATION FOR A WRIT OF HABEAS CORPUS IN BEHALF OF A PERSON IN
CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT SHALL NOT BE GRANTED
UNLESS IT APPEARS THAT THE APPLICANT HAS EXHAUSTED THE REMEDIES
AVAILABLE IN THE COURTS OF THE STATE, OR THAT THERE IS EITHER AN
ABSENCE OF AVAILABLE STATE CORRECTIVE PROCESS OR THE EXISTENCE OF
CIRCUMSTANCES RENDERING SUCH PROCESS INEFFECTIVE TO PROTECT THE RIGHTS
OF THE PRISONER.    "AN APPLICANT SHALL NOT BE DEEMED TO HAVE EXHAUSTED
THE REMEDIES AVAILABLE IN THE COURTS OF THE STATE, WITHIN THE MEANING
OF THIS SECTION, IF HE HAS THE RIGHT UNDER THE LAW OF THE STATE TO
RAISE, BY ANY AVAILABLE PROCEDURE, THE QUESTION PRESENTED." 
(CONGRESSIONAL RECORD, JUNE 16, 1948, P. 8676.) 

MR. JUSTICE MURPHY, DISSENTING. 

ONE OF THE FIXED PRINCIPLES OF DUE PROCESS, AS GUARANTEED BY THE
FOURTEENTH AMENDMENT, IS THAT NO CONVICTION IN A STATE COURT IS VALID
WHICH IS BASED IN WHOLE OR IN PART UPON AN INVOLUNTARY CONFESSION.  LEE
V. MISSISSIPPI, 332 U.S. 742, 745.  WHEREVER A CONFESSION IS SHOWN TO
BE THE PRODUCT OF MENTAL OR PHYSICAL COERCION RATHER THAN REASONED AND
VOLUNTARY CHOICE, THE CONVICTION IS VOID.  AND IT IS VOID EVEN THOUGH
THE CONFESSION IS IN FACT TRUE AND EVEN THOUGH THERE IS ADEQUATE
EVIDENCE OTHERWISE TO SUSTAIN THE CONVICTION. 

THIS PRINCIPLE REFLECTS THE COMMON ABHORRENCE OF COMPELLING ANY MAN,
INNOCENT OR GUILTY, TO GIVE TESTIMONY AGAINST HIMSELF IN A CRIMINAL
PROCEEDING.  IT IS A PRINCIPLE WHICH WAS WRITTEN INTO THE CONSTITUTION
BECAUSE OF THE BELIEF THAT TO TORTURE AND COERCE AN INDIVIDUAL INTO
CONFESSING A CRIME, EVEN THOUGH THAT INDIVIDUAL BE GUILTY, IS TO
ENDANGER THE RIGHTS AND LIBERTIES OF ALL PERSONS ACCUSED OF CRIME. 
HISTORY HAS SHOWN THAT ONCE TYRANNICAL METHODS OF LAW ENFORCEMENT ARE
PERMITTED AS TO ONE MAN SUCH METHODS ARE INVARIABLY USED AS TO OTHERS. 
BRUTALITY KNOWS NO DISTINCTION BETWEEN THE INNOCENT AND THE GUILTY. 
AND THOSE WHO SUFFER MOST FROM THESE INQUISITORIAL PROCESSES ARE THE
FRIENDLESS, THE IGNORANT, THE POOR AND THE DESPISED.  CHAMBERS V.
FLORIDA, 309 U.S. 227, 237-238.  TO GUARD AGAINST THIS EVIL, THEREFORE,
THE CONSTITUTION REQUIRES THAT A CONVICTION BE SET ASIDE WHENEVER IT
APPEARS THAT A CONFESSION INTRODUCED AT THE TRIAL IS INVOLUNTARY IN
NATURE. 

THE PROBLEM IN THIS CASE IS WHETHER THE PETITIONER, HAVING BEEN FOUND
GUILTY OF RAPE AND SENTENCED TO DEATH, IS NOW ENTITLED TO A HEARING ON
HIS ALLEGATION THAT THE CONFESSION INTRODUCED AT THE TRIAL WAS OBTAINED
BY COERCIVE METHODS.  THE SUPREME COURT OF ALABAMA REFUSED TO ALLOW A
HEARING ON THE THEORY THAT THE ALLEGATION WAS UNREASONABLE.  IN
AFFIRMING THAT REFUSAL, HOWEVER, THIS COURT RELIES UPON CONSIDERATIONS
WHICH ARE EITHER IRRELEVANT, INCONCLUSIVE OR CONTRARY TO THE
CONSTITUTIONAL PRINCIPLE JUST DISCUSSED: 

(1)  THE COURT EMPHASIZES THAT THE PETITION DOES NOT DENY THE GUILT
OF PETITIONER OR DENY ANY OF THE ACTS UPON WHICH HIS CONVICTION WAS
BASED.  BUT WHETHER PETITIONER BE INNOCENT OR GUILTY HAS NO BEARING
WHATEVER ON THE REASONABLENESS OF THE ALLEGATION THAT THE CONFESSION
WAS COERCED.  EVEN IF WE ASSUME THAT PETITIONER IS GUILTY BEYOND ALL
DOUBT, THE DUE PROCESS CLAUSE STILL INVALIDATES HIS CONVICTION IF IT
WAS OBTAINED THROUGH USE OF A COERCED CONFESSION.  THE THRUST OF THAT
CLAUSE IS DIRECTED TOWARD THE VOLUNTARINESS OF THE CONFESSION, NOT
TOWARD THE INNOCENCE OF THE ACCUSED. 

(2)  SIGNIFICANCE IS GIVEN TO THE FACT THAT THE STATEMENTS MADE BY
PETITIONER AND INTRODUCED AT THE TRIAL AS HIS CONFESSION "ARE SO FREE
IN MANNER, DETAILED IN CONTENT AND AFFIRMATIVE IN THEIR NATURE THAT
THEY CARRY OBVIOUS EARMARKS OF BEING THE TRUTH."  HERE AGAIN THE COURT
MISCONCEIVES THE NATURE AND PURPOSE OF THE CONSTITUTIONAL PRINCIPLE IN
ISSUE.  COERCED CONFESSIONS ARE OUTLAWED BY THE DUE PROCESS CLAUSE
REGARDLESS OF THE TRUTH OR FALSITY OF THEIR CONTENT.  IT IS JUST AS
UNCIVILIZED TO BRUTALIZE AN ACCUSED PERSON INTO TELLING THE TRUTH AS IT
IS TO FORCE HIM TO FABRICATE A CONFESSION.  THE TORTURE AND COERCION
ARE WHAT THE CONSTITUTION CONDEMNS.  HENCE AN ALLEGATION THAT A
CONFESSION IS INVOLUNTARY IS NOT RENDERED UNREASONABLE BECAUSE OF THE
APPARENT TRUTHFULNESS OF THAT CONFESSION. 

(3)  THE COURT REFERS TO THE ABSENCE OF ANY EVIDENCE AT THE ORIGINAL
TRIAL OF ANY PHYSICAL OR MENTAL COERCION OR OF ANY INDUCEMENT OR
PROMISE BEARING UPON THE CONFESSION MADE BY PETITIONER.  BUT BECAUSE HE
ALLEGEDLY WAS STILL SUFFERING FROM THE COERCIVE EFFECTS OF THE
BEATINGS, PETITIONER MADE NO EFFORT AT THE TRIAL TO PROVE THAT HE HAD
BEEN SUBJECT TO UNDUE PRESSURE PRIOR TO 3 A.M., JULY 3, 1946, WHICH IS
THE CRUCIAL PERIOD.  MOST OF THE WITNESSES AT THE TRIAL ADMITTED
IGNORANCE AS TO THE EVENTS OCCURRING BEFORE THAT TIME.  THUS THE PROOF
AT THE TRIAL IS AT LEAST CONSISTENT WITH THE ALLEGATION NOW MADE AND IS
NOT SUCH AS TO RENDER THE ALLEGATION UNREASONABLE. 

(4)  OBJECTION IS MADE THAT THE ONLY AFFIDAVITS SUPPORTING THE
ALLEGATION ARE THOSE OF PETITIONER HIMSELF AND OF THREE PERSONS
ASSOCIATED WITH HIM.  I FAIL TO SEE, HOWEVER, HOW SUCH AN OBJECTION
INDICATES THE UNREASONABLENESS OF THE ALLEGATION.  THE AFFIDAVITS ARE
THOSE OF FOUR NEGROES ARRESTED ON THE STREET AT THE SAME TIME AND
DETAINED ON A ROBBERY CHARGE.  THEIR COMMON ARREST AND DETENTION DO NOT
NECESSARILY RENDER UNTRUSTWORTHY ANY AFFIDAVITS ON THE PART OF
PETITIONER'S THREE COMPANIONS.  A STATEMENT BY A FRIEND OR ASSOCIATE
CAN BE JUST AS PROBATIVE FOR PRESENT PURPOSES AS A STATEMENT BY AN
ENEMY OR A DISINTERESTED PERSON.  IT IS NOT OUR FUNCTION NOW TO WEIGH
THE EFFECT WHICH THE RELATIONSHIPS OF THE FOUR AFFIANTS MAY HAVE ON THE
VERITY OF THEIR STATEMENTS.  SUFFICIENT IT IS THAT THE STATEMENTS ARE
REASONABLE AND PERTINENT ON THEIR FACE.  MOREOVER, THE JAIL SENTENCE
NOW BEING SERVED BY ONE OF THE COMPANIONS DOES NOT, STANDING ALONE,
DESTROY THE FORCE OF HIS AFFIDAVIT UNLESS WE ARE TO INDULGE IN THE
UNREALISTIC ASSUMPTION THAT NOTHING SAID BY A PRISON INMATE IS TO BE
GIVEN CREDENCE.  OVERLOOKED IN THIS RESPECT IS THE FACT THAT TWO OF THE
COMPANIONS ARE NOW FREE INDIVIDUALS WHO PRESUMABLY LACK WHAT THE COURT
FEELS IS THE TAINT OF IMPRISONMENT.  I CAN ONLY CONCLUDE, THEREFORE,
THAT IF THERE IS ANYTHING WRONG WITH THESE AFFIDAVITS IT DOES NOT
APPEAR IN THE BACKGROUND OF THE AFFIANTS. 

(5)  THE COURT OBSERVES THAT, EXCEPT FOR ONE INSTANCE, NONE OF THE
THREE ASSOCIATES CLAIMS TO HAVE SEEN THE ALLEGED BEATINGS OF THE
PETITIONER; ALL THEY DID WAS TO HEAR THE BRUTALITY BEING INFLICTED. 
BUT I HAD NEVER SUPPOSED THAT AN ALLEGATION OF COERCION WAS ANY LESS
REASONABLE BECAUSE THE ALLEGED TORTURE DID NOT TAKE PLACE BEFORE THE
VERY EYES OF DISINTERESTED WITNESSES.  A MOMENT'S REFLECTION WILL
DEMONSTRATE THAT COERCION IS MOST LIKELY TO OCCUR IN SECRET AND TO BE
WITNESSED, IF AT ALL, THROUGH THE EARS OF OTHER INMATES.  WHETHER THERE
IS ANY TRUTH TO THE CLAIMED OVERHEARING, OF COURSE, IS A MATTER FOR THE
TRIER OF FACTS AND DOES NOT AFFECT THE REASONABLENESS OF THE CLAIM
ITSELF. 

(6) THE ALLEGED BEATINGS ARE SAID TO BE SO EXTREME IN NATURE AS TO BE
EVIDENT ON JULY 3, WHEN PHOTOGRAPHS OF THE PETITIONER WERE TAKEN. 
SUFFICE IT TO SAY THAT PHOTOGRAPHS CAN BE MOST DECEIVING, ESPECIALLY
PHOTOGRAPHS OF A PERSON LIKE PETITIONER.  THE SUPREME COURT OF ALABAMA
REALIZED THIS FACT AND PLACED NO PARTICULAR RELIANCE UPON THE
PHOTOGRAPHS; THE DISSENTING JUDGE, HOWEVER, WAS CONVINCED THAT THE
PICTURES DID SHOW NUMEROUS MARKS ON PETITIONER'S BODY.  UNDER THESE
CIRCUMSTANCES, WE SHOULD REFRAIN FROM JUDGING THE REASONABLENESS OF THE
ALLEGATION BY WHAT WE THINK APPEARS IN DECEPTIVE PHOTOGRAPHS. 

(7)  THE STATEMENT THAT SERGEANT WILKES PERJURED HIMSELF AT THE TRIAL
APPARENTLY HAS NO FOUNDATION, AS THE COURT POINTS OUT.  BUT THIS FACTOR
HAS NO PARTICULAR RELEVANCE TO THE REASONABLENESS OF THE CLAIM OF
COERCION.  SUCH AN ERROR SHOULD NOT PREJUDICE PETITIONER'S ENTIRE
ALLEGATION. 

(8)  IT IS SAID THAT THERE IS NOTHING OTHER THAN THE PETITION TO SHOW
THAT PETITIONER CONCEALED THE ALLEGED COERCION FROM HIS ATTORNEY AT THE
TRIAL.  THIS FACT MAY BE CONCEDED, BUT IT HARDLY WARRANTS TREATING THE
CLAIM AS UNREASONABLE.  THE COERCION CONCEIVABLY COULD HAVE BEEN SO
EFFECTIVE AS TO SHUT PETITIONER'S LIPS ALL THROUGH THE TRIAL AND TO
SILENCE HIM EVEN AS TO HIS OWN ATTORNEY.  WE SHOULD NOT CLOSE THE DOOR
TO PROOF OF THAT POSSIBILITY. 

THUS I FIND INADEQUATE THE CONSIDERATIONS RELIED UPON BY THIS COURT
TO AFFIRM THE JUDGMENT BELOW.  PETITIONER HAS MADE AN ALLEGATION OF THE
MOST SERIOUS NATURE, ONE THAT REFLECTS GRAVELY UPON THE LAW ENFORCEMENT
PROCESSES OF ALABAMA.  HE CLAIMS THAT FOR FOUR NIGHTS PRECEDING THE
CONFESSION HE WAS "BRUTALLY BEATEN, KICKED AND BRUISED IN AN EFFORT TO
OBTAIN SAID CONFESSION" AND PUT IN "GREAT FEAR FOR HIS FUTURE SAFETY." 
CF. CHAMBERS V. FLORIDA, SUPRA.  THREE OTHER PERSONS ARE WILLING TO
TESTIFY THAT THEY HEARD BLOWS STRUCK AND HEARD PETITIONER "SCREAM AND
HOLLER MANY TIMES."  A PERUSAL OF THE RECORD REVEALS AN ABSENCE OF ANY
FACTOR THAT WOULD RENDER THIS ALLEGATION COMPLETELY SLEEVELESS.  DOUBTS
MAY REASONABLY EXIST AS TO THE MERITS OF THE ALLEGATION.  BUT THEY ARE
DOUBTS WHICH SHOULD BE RESOLVED AT A FULL HEARING.  THAT IS ALL THAT
PETITIONER NOW ASKS.  AND I BELIEVE THAT A DENIAL OF HIS REQUEST TO
HAVE THE OPPORTUNITY TO PROVE HIS ALLEGATION IS A DENIAL OF DUE PROCESS
OF A MOST FLAGRANT NATURE. 

WE ARE DEALING HERE WITH A MATTER OF LIFE AND DEATH, A MATTER OF
CONSTITUTIONAL IMPORTANCE.  IF IT WERE OUR FUNCTION TO SPECULATE UPON
THE EFFECT PETITIONER'S CONFESSION HAD ON THE JURY'S VERDICT, IT WOULD
SEEM CLEAR THAT THE CONFESSION WAS OF CRUCIAL IMPORTANCE.  THERE WAS
LITTLE ELSE TO SUSTAIN THE VERDICT, THE PROSECUTRIX'S IDENTIFICATION OF
PETITIONER BEING SOMEWHAT WEAKENED BY THE FACT THAT SHE HAD PREVIOUSLY
MADE A POSITIVE AND MISTAKEN IDENTIFICATION OF ANOTHER NEGRO.  AND THE
CONFESSION UNDOUBTEDLY AFFECTED THE JURY'S CHOICE FROM AMONG FOUR
ALTERNATIVE FORMS OF THE GUILTY VERDICT OF THE ONE THAT IMPOSED THE
DEATH SENTENCE.  CF. ANDRES V. UNITED STATES, 333 U.S. 740.  IF THE
CONFESSION WAS IN FACT COERCED, THEREFORE, THE CONVICTION ITSELF WAS
THOROUGHLY IMPREGNATED WITH THE COERCION.  BUT THE DEGREE OF SUCH
IMPREGNATION IS IRRELEVANT UNDER THE DUE PROCESS CLAUSE.  AS WE HAVE
SEEN, IT IS ENOUGH IF A COERCED CONFESSION WAS ACTUALLY INTRODUCED AT
THE TRIAL.  THE CONVICTION THEN BECOMES VOID UNDER WELL ESTABLISHED
RULES.  WHERE THERE IS A REASONABLE POSSIBILITY THAT A CONVICTION IS
VOID FOR THIS REASON, I THINK THAT AN OPPORTUNITY SHOULD BE AFFORDED A
CONDEMNED MAN TO DEMONSTRATE HIS CASE.  PETITIONER'S EXECUTION IS NO
ANSWER TO THE ALLEGATION WHICH HE HAS RAISED. 

FORTUNATELY, THIS COURT HAS NOT YET MADE A FINAL AND CONCLUSIVE
ANSWER TO PETITIONER'S CLAIM.  ALL THAT HAS BEEN DECIDED HERE IS THAT
THE SUPREME COURT OF ALABAMA DID NOT ERR IN DECLINING TO PERMIT HIM TO
FILE A PETITION FOR WRIT OF ERROR CORAM NOBIS IN THE ALABAMA COURTS. 
NOTHING HAS BEEN HELD WHICH PREJUDICES PETITIONER'S RIGHT TO PROCEED BY
WAY OF HABEAS CORPUS IN A FEDERAL DISTRICT COURT, NOW THAT HE HAS
EXHAUSTED HIS STATE REMEDIES.  HE MAY YET OBTAIN THE HEARING WHICH
ALABAMA HAS DENIED HIM. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN THIS DISSENT. 
..END :



UNITED STATES V. ZAZOVE, 334 U.S. 602 


NO. 432.  ARGUED APRIL 19, 1948.  - DECIDED JUNE 14, 1948.  - 162 F.2D
443, REVERSED. 


1.  SECTION 602(H)(2) OF THE NATIONAL SERVICE LIFE INSURANCE ACT OF
1940 PROVIDES THAT INSURANCE PAYABLE TO A BENEFICIARY WHO IS OVER 30 AT
THE TIME OF THE INSURED'S DEATH SHALL BE PAID IN EQUAL MONTHLY
INSTALLMENTS FOR 120 MONTHS CERTAIN, WITH SUCH PAYMENTS CONTINUING
DURING THE REMAINING LIFETIME OF THE BENEFICIARY.  REGULATION 3450 OF
THE VETERANS' ADMINISTRATION, ISSUED AS A CONSTRUCTION OF SEC.
602(H)(2), PROVIDES THAT THE AMOUNT OF THE MONTHLY INSTALLMENTS SO
PAYABLE SHALL BE CALCULATED IN ACCORDANCE WITH A SCHEDULE BASED UPON
THE BENEFICIARY'S AGE AND THE AMERICAN EXPERIENCE TABLE OF MORTALITY. 
THE BENEFICIARY OF A NATIONAL SERVICE LIFE INSURANCE POLICY, WHO WAS
OVER 30 AT THE TIME OF THE INSURED'S DEATH IN 1943, SUED TO OBTAIN
MONTHLY PAYMENTS IN AN AMOUNT WHICH, OVER A PERIOD OF 120 MONTHS, WOULD
EQUAL THE FACE AMOUNT OF THE POLICY PLUS INTEREST.  SHE CONTENDED THAT
REGULATION 3450 WAS NOT A PROPER CONSTRUCTION OF SEC. 602(H)(2).  HELD:
THE REGULATION IS VALID.  PP. 604-624. 

2.  READ IN ITS ENTIRETY AND WITH REGARD TO THE SPECIALIZED,
TECHNICAL SENSE IN WHICH SOME OF ITS WORDING IS GENERALLY EMPLOYED IN
THE INSURANCE FIELD, SEC. 602(H)(2) IS NOT SO CLEAR AND FREE FROM
AMBIGUITY AS TO PRECLUDE THE CONSTRUCTION ADOPTED BY THE VETERANS'
ADMINISTRATION IN REGULATION 3450.  PP. 608-610. 

3.  IN CONSTRUING THE PROVISIONS OF AN ACT OF CONGRESS SETTING UP A
SYSTEM OF NATIONAL LIFE INSURANCE, ONLY THE INTENT OF CONGRESS NEED BE
ASCERTAINED; THE LAYMAN UNDERSTANDING OF THE POLICY HOLDER DOES NOT
HAVE THE RELEVANCE THAT IT HAS IN THE CASE OF AN ORDINARY COMMERCIAL
INSURANCE CONTRACT.  PP. 610-611. 

4.  IT IS NOT ENOUGH, HOWEVER, THAT THE REGULATION IS NOT PLAINLY
INTERDICTED BY THE STATUTE, FOR IN SEC. 608 OF THE ACT, AS AMENDED,
CONGRESS MANIFESTED AN INTENT THAT REGULATIONS OF THE VETERANS'
ADMINISTRATION BE SUBJECTED TO MORE THAN CASUAL JUDICIAL SCRUTINY TO
DETERMINE WHETHER THEY ARE "NOT INCONSISTENT" WITH THE STATUTE, WHETHER
THEY ARE "NECESSARY OR APPROPRIATE" TO CARRY OUT ITS PURPOSES, AND
WHETHER THEY ARE "PROPERLY" ISSUED.  PP. 611-612. 

5.  BUT WHEN THE RESPECTIVE ASSUMPTIONS AND CONSEQUENCES OF EACH OF
THE TWO ALTERNATIVE INTERPRETATIONS OF SEC. 602(H)(2) PRESENTED IN THIS
CASE ARE TESTED AGAINST THE LEGISLATIVE HISTORY AND THE STATUTE VIEWED
IN ITS ENTIRETY, IT IS CLEAR THAT THE ONE INCORPORATED IN REGULATION
3450 IS THAT INTENDED BY CONGRESS.  PP. 612-624. 

(A)  UNDER A CONTRARY INTERPRETATION OF THE STATUTE, A BENEFICIARY
OVER 30 WOULD IN MOST CASES RECEIVE A FAR GREATER AGGREGATE AMOUNT THAN
A BENEFICIARY UNDER 30.  THERE IS NO INDICATION THAT CONGRESS INTENDED
THIS SHARP DISPARITY OF TREATMENT, AND IT DOES NOT RESULT UNDER THE
REGULATION.  PP. 612-616. 

(B)  CONGRESS CONTEMPLATED THAT THE RESERVE FUND TO MEET THE
LIABILITIES OF NATIONAL SERVICE LIFE INSURANCE POLICIES WAS TO BE SELF
SUPPORTING, SUSTAINED BY THE PREMIUMS PAID AND BY THE YIELD OF PREMIUMS
INVESTED, EXCEPT AS TO THOSE EXCEPTIONAL ITEMS OF COST AS TO WHICH THE
STATUTE SPECIFICALLY PROVIDED THAT THE GOVERNMENT WOULD BEAR THE
FINANCIAL BURDEN.  UNDER THE CONSTRUCTION ADVANCED BY THE BENEFICIARY
IN THIS CASE, HOWEVER, THE GOVERNMENT'S TOTAL LIABILITY WOULD BE
INCREASED TO AN EXTENT REQUIRING EITHER SPECIAL CONGRESSIONAL
APPROPRIATIONS OR A SUBSTANTIAL INCREASE IN PREMIUM RATES.  THE STATUTE
NOWHERE SPECIFIES THAT THE GOVERNMENT SHOULD BEAR THIS HUGE COST, NOR
IS THERE ANY BASIS FOR ASSUMING THAT CONGRESS ENVISAGED PREMIUM RATES
HIGH ENOUGH TO MEET AN ADDED LIABILITY OF SUCH PROPORTIONS.  PP. 616
617. 

(C)  THE PRACTICE IN EFFECT UNDER UNITED STATES GOVERNMENT LIFE
INSURANCE FOR WORLD WAR I VETERANS AND THE LONG-ESTABLISHED PRACTICE OF
COMMERCIAL INSURANCE COMPANIES, WHICH MUST BE VIEWED AS PART OF THE
BACKGROUND OF EXPERIENCE WHICH THE DRAFTSMEN OF SEC. 602(H)(2) HAD IN
MIND, BOTH ACCORD WITH THE CONSTRUCTION EMBODIED IN REGULATION 3450. 
PP. 617-619. 

(D)  THE JUXTAPOSITION OF SEC. 602(H)(2) WITH OTHER PROVISIONS
INDICATING THAT ACTUARIAL PRINCIPLES WERE TO BE FOLLOWED IS ALSO
SIGNIFICANT.  P. 620. 

(E)  THE SUBSEQUENT LEGISLATIVE HISTORY OF THE STATUTE CLEARLY
INDICATES CONGRESSIONAL APPROVAL OF THE CONSTRUCTION PUT ON SEC.
602(H)(2) BY REGULATION 3450.  PP. 620-624. 

UNITED STATES V. ZAZOVE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

IN A SUIT BY A BENEFICIARY, THE DISTRICT COURT SUSTAINED THE VALIDITY
OF REGULATION 3450 OF THE VETERANS' ADMINISTRATION AS BEING IN ACCORD
WITH SEC. 602(H)(2) OF THE NATIONAL SERVICE LIFE INSURANCE ACT OF
1940.  THE CIRCUIT COURT OF APPEALS REVERSED.  162 F.2D 443.  THIS
COURT GRANTED CERTIORARI.  332 U.S. 835.  REVERSED, P. 624. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON IN THIS CASE TO DETERMINE WHETHER REGULATION 3450
OF THE VETERANS' ADMINISTRATION  FN1  IS IN ACCORD WITH A PROPER
CONSTRUCTION OF SEC. 602(H)(2) OF THE NATIONAL SERVICE LIFE INSURANCE
ACT OF 1940.  FN2 

RESPONDENT, TILLIE ZAZOVE, WAS DESIGNATED BENEFICIARY IN A $5,000
CONTRACT OF NATIONAL SERVICE LIFE INSURANCE.  THE INSURED DIED IN 1943,
AND THE NAMED BENEFICIARY FILED HER CLAIM FOR THE INSURANCE IN THE
VETERANS' ADMINISTRATION.  UPON DENIAL OF THE CLAIM, SUIT WAS
INSTITUTED IN THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS.  FN3  THE DISTRICT COURT RULED, ON ITS VIEW OF THE FACTS,
THAT MRS. ZAZOVE DID NOT STAND IN LOCO PARENTIS TO THE SOLDIER AND
HENCE WAS NOT ONE OF THE PERSONS WHO COULD BE MADE A BENEFICIARY AS
PROVIDED BY THE STATUTE.  FN4  ON APPEAL, THE CIRCUIT COURT OF APPEALS
FOR THE SEVENTH CIRCUIT RULED TO THE CONTRARY AND REMANDED FOR FURTHER
PROCEEDINGS.  156 F.2D 24. 

THE ISSUE REMAINING FOR DETERMINATION BY THE DISTRICT COURT UPON
REMAND WAS THE VALIDITY OF REGULATION 3450.  IT SUSTAINED THE
REGULATION AS PROPERLY ISSUED PURSUANT TO THE NATIONAL SERVICE LIFE
INSURANCE ACT.  ON A SECOND APPEAL, THE CIRCUIT COURT OF APPEALS, ONE
JUDGE DISSENTING, REVERSED.  162 F.2D 443.  WE GRANTED CERTIORARI TO
REVIEW THE IMPORTANT QUESTION OF STATUTORY CONSTRUCTION INVOLVED.  332
U.S. 835. 

THE BASIC STATUTORY PROVISION INVOLVED IS SEC. 602(H) OF THE NATIONAL
SERVICE LIFE INSURANCE ACT OF 1940, WHICH PROVIDES THAT INSURANCE
ISSUED UNDER THE ACT "SHALL BE PAYABLE IN THE FOLLOWING MANNER: 

"(1)  IF THE BENEFICIARY TO WHOM PAYMENT IS FIRST MADE IS UNDER
THIRTY YEARS OF AGE AT THE TIME OF MATURITY, IN TWO HUNDRED AND FORTY
EQUAL MONTHLY INSTALLMENTS. 

"(2)  IF THE BENEFICIARY TO WHOM PAYMENT IS FIRST MADE IS THIRTY OR
MORE YEARS OF AGE AT THE TIME OF MATURITY, IN EQUAL MONTHLY
INSTALLMENTS FOR ONE HUNDRED AND TWENTY MONTHS CERTAIN, WITH SUCH
PAYMENTS CONTINUING DURING THE REMAINING LIFETIME OF SUCH
BENEFICIARY." 

THE ADMINISTRATOR, ACTING UNDER THE GENERAL RULE-MAKING POWER GIVEN
HIM BY THE ACT,  FN5 PROMULGATED REGULATION 3450(SET FORTH IN THE
MARGIN)  FN6  SHORTLY AFTER THE ENACTMENT OF THE STATUTE, TO PUT SEC.
602(H) INTO OPERATION.  THE REGULATION PROVIDES, FOR BENEFICIARIES
COVERED BY CLAUSE (1), THAT "PAYMENT SHALL BE MADE IN 240 EQUAL MONTHLY
INSTALLMENTS AT THE RATE OF $5.51 FOR EACH $1,000 OF SUCH INSURANCE." 
THE AMOUNT OF THE MONTHLY INSTALLMENT IS SO CALCULATED THAT THE SUM OF
THE 240 INSTALLMENTS EQUALS THE FACE VALUE OF THE INSURANCE PLUS 3%
INTEREST PER ANNUM. 

IT IS THE PROVISION MADE BY THE REGULATION FOR FIRST BENEFICIARIES
COVERED BY CLAUSE (2) THAT IS IN ISSUE, SINCE THE FIRST BENEFICIARY IN
THIS CASE, MRS. ZAZOVE, WAS MORE THAN THIRTY YEARS OLD WHEN THE POLICY
MATURED.  FOR SUCH BENEFICIARIES, WHO ARE TO RECEIVE PAYMENTS FOR LIFE
WITH 120 PAYMENTS CERTAIN, THE REGULATION PROVIDES THAT THE "AMOUNT OF
THE MONTHLY INSTALLMENT FOR EACH $1,000 OF INSURANCE SHALL BE
DETERMINED BY THE AGE OF THE BENEFICIARY AS OF LAST BIRTHDAY AT THE
TIME OF THE DEATH OF THE INSURED, IN ACCORDANCE WITH (A) SCHEDULE BASED
UPON THE AMERICAN EXPERIENCE TABLE OF MORTALITY AND INTEREST AT THE
RATE OF 3 PERCENTUM PER ANNUM  ...  " ACCORDINGLY, THE SIZE OF THE
MONTHLY INSTALLMENT VARIES NOT MERELY WITH THE FACE VALUE OF THE
INSURANCE POLICY BUT ALSO WITH THE AGE OF THE FIRST BENEFICIARY, THE
LATTER FACTOR BEING USED AS THE BASIS OF AN ACTUARIAL COMPUTATION
WHEREBY THE FACE VALUE OF THE POLICY PLUS INTEREST IS EQUALIZED OVER
THE LIFE EXPECTANCY OF THE BENEFICIARY.  UNDER THIS INTERPRETATION OF
SEC. 602(H)(2), THE RESPONDENT, WHO WAS 54 YEARS OF AGE AT THE DEATH OF
THE INSURED, IS ENTITLED TO MONTHLY INSTALLMENTS OF $29.50, AT THE RATE
OF $5.90 FOR EACH $1,000 OF INSURANCE IN WHICH SHE HAD A BENEFICIAL
INTEREST.  THESE INSTALLMENTS ARE TO BE PAID FOR 120 MONTHS CERTAIN,
FN7  AND TO CONTINUE DURING HER REMAINING LIFETIME IF SHE LIVES BEYOND
THAT 10-YEAR PERIOD. 

IN REVERSING THE DISTRICT COURT, THE CIRCUIT COURT OF APPEALS HELD
THIS METHOD OF CALCULATION SET FORTH BY REGULATION 3450 TO BE
INCONSISTENT WITH THE PROVISIONS OF SEC. 602(H)(2).  IT CONSTRUED THE
LATTER PROVISIONS, IN ACCORD WITH THE RESPONDENT'S CONTENTION, AS
PLAINLY REQUIRING THAT THE TOTAL OF THE EQUAL MONTHLY INSTALLMENTS
PAYABLE OVER A PERIOD OF 120 MONTHS CERTAIN SHOULD EQUAL THE FACE VALUE
OF THE INSURANCE, PLUS INTEREST.  UNDER THIS CONSTRUCTION, MRS. ZAZOVE
IS ENTITLED TO RECEIVE $48.08, INSTEAD OF $29.50, AS HER MONTHLY
INSTALLMENT, SO THAT THE TOTAL OF THE 120 PAYMENTS CERTAIN WILL AMOUNT
TO $5,000(PLUS INTEREST), INSTEAD OF $3,450(PLUS INTEREST) AS
DETERMINED BY THE VETERANS' ADMINISTRATION, WITH THE MONTHLY
INSTALLMENTS DUE HER IF SHE SURVIVES THE PERIOD OF GUARANTEED PAYMENTS
CONTINUING AT THE SAME RATE.  TAKING INTO ACCOUNT MRS. ZAZOVE'S LIFE
EXPECTANCY AS ESTIMATED BY THE AMERICAN EXPERIENCE TABLE OF MORTALITY,
THE ACTUAL CASH VALUE OF THIS $5,000 INSURANCE POLICY AT THE TIME OF
THE INSURED'S DEATH WOULD AMOUNT TO $8,145 UNDER RESPONDENT'S
CONSTRUCTION, INSTEAD OF $5,000 AS DETERMINED BY THE REGULATION.  FN8 

IN ARRIVING AT ITS DECISION, THE MAJORITY OF THE CIRCUIT COURT OF
APPEALS REASONED THAT THE TERMS OF SEC. 602(H)(2) ARE CLEAR AND
UNAMBIGUOUS; THAT NOTHING IS SAID IN THE STATUTE ABOUT EQUALIZING THE
SUM OVER THE LIFE EXPECTANCY OF THE BENEFICIARY; AND THAT CONGRESS
UNMISTAKABLY PRESCRIBED PAYMENT OF THE FACE VALUE PLUS INTEREST IN
EQUAL MONTHLY INSTALLMENTS OVER A PERIOD OF 120 MONTHS CERTAIN.  THE
MAJOR DIFFICULTY WITH THIS REASONING LIES IN THE INADEQUATE
CONSIDERATION THAT IT GIVES TO THE FULL EXTENT OF THE PAYMENT PROVIDED
BY SEC. 602(H)(2).  IN EFFECT, THE CIRCUIT COURT OF APPEALS MAJORITY
STOPPED SHORT, IN ITS READING OF THE TERMS FOR PAYMENT OF THE INSURANCE
IN THAT SUBSECTION, AT THE END OF THE PHRASE "IN EQUAL MONTHLY
INSTALLMENTS FOR ONE HUNDRED AND TWENTY MONTHS CERTAIN."  BY STOPPING
SHORT AT THAT PHRASE, THE COURT FAILED TO CONSIDER THE ALTERNATIVE
POSSIBILITY THAT CONGRESS INTENDED THE IMMEDIATELY FOLLOWING PHRASE,
"WITH SUCH PAYMENTS CONTINUING DURING THE REMAINING LIFETIME OF SUCH
BENEFICIARY," TO PROVIDE AN ADDITIONAL AND EQUALLY ESSENTIAL COMPONENT
OF THE STATUTORY EQUIVALENT FOR THE FACE VALUE OF THE INSURANCE. 
ASSUMING THAT THIS ALTERNATIVE CONSTRUCTION OF THE SECTION IS IN FACT
WHAT CONGRESS INTENDED, THE ONLY PROPER INTERPRETATIVE REGULATION WOULD
BE ONE THAT COMPUTED THE VALUE OF THE MONTHLY INSTALLMENTS PAYABLE TO
ANY GIVEN FIRST BENEFICIARY IN SUCH A MANNER THAT THE VALUE OF THE
PAYMENTS TO BE MADE, GIVING DUE WEIGHT TO THE BENEFICIARY'S LIFE
EXPECTANCY AT THE DEATH OF THE INSURED, WOULD BE EQUIVALENT TO THE FACE
VALUE OF THE POLICY, PLUS 3% INTEREST.  REGULATION 3450 IS BASED ON
THAT ASSUMPTION.  IT WAS ONLY BECAUSE THE CIRCUIT COURT OF APPEALS
FAILED TO REGARD THE CONTINUING PAYABILITY OF MONTHLY INSTALLMENTS,
AFTER THE PAYMENT OF THE 120 INSTALLMENTS CERTAIN, AS POSSIBLY
CONSTITUTING A SIGNIFICANT COMPONENT OF THE INSURANCE FOR WHICH THE
SERVICEMAN HAD CONTRACTED, RATHER THAN A SHEER GRATUITY CONFERRED BY
CONGRESS, THAT THE COURT COULD VIEW THE SUBSECTION AS PLAINLY AND
WITHOUT AMBIGUITY REQUIRING THE FACE VALUE OF THE INSURANCE TO BE PAID
BY THE END OF THE 120 MONTHS CERTAIN. 

MOREOVER, THE VERY PRESENCE OF THE TERM "CERTAIN" IN THE PHRASE
"EQUAL MONTHLY INSTALLMENTS FOR ONE HUNDRED AND TWENTY MONTHS CERTAIN"
SUGGESTS A VIEW CONTRARY TO THAT REACHED BY THE COURT BELOW.  IT WILL
BE NOTED THAT WHEN CONGRESS HAD IN MIND, AS IT CLEARLY DID IN THE CASE
OF SEC. 602(H)(1), THAT A FIXED NUMBER OF INSTALLMENTS PROVIDED FOR
SHOULD EQUAL THE FACE VALUE OF THE INSURANCE, THERE WAS NO OCCASION FOR
THE USE OF "CERTAIN" IN DESCRIBING THE INSTALLMENTS TO BE MADE AND,
INDEED, THE TERM IS NOT FOUND IN SEC. 602(H)(1).  WHILE THE INCLUSION
OF THE TERM IN DESCRIBING THE FIXED NUMBER OF INSTALLMENTS TO BE PAID
UNDER SEC. 602(H)(2) MIGHT CONCEIVABLY BE A MERE SUPERFLUITY, ITS
PRESENCE AT LEAST SUGGESTS THE FAR GREATER PROBABILITY THAT IT WAS USED
IN THE SPECIALIZED, TECHNICAL SENSE IN WHICH IT IS GENERALLY EMPLOYED
IN THE INSURANCE FIELD - NAMELY, TO INDICATE A GUARANTY THAT A
DESIGNATED NUMBER OF MONTHLY PAYMENTS SHALL BE FORTHCOMING, WHERE A
POLICY PROVIDES AN OPTION FOR EQUAL MONTHLY INSTALLMENTS CONTINUING
THROUGHOUT THE LIFETIME OF A PAYEE, WITH THE INDIVIDUAL INSTALLMENT
VARYING IN AMOUNT DEPENDING ON THE AGE OF THE BENEFICIARY WHEN THE
POLICY MATURES.  FN9 

HENCE, IN OUR VIEW, A READING OF SEC. 602(H)(2) IN ITS ENTIRETY
SUFFICES TO DEMONSTRATE THAT THE LANGUAGE THERE USED BY CONGRESS IS FAR
FROM BEING SO CLEAR AND SO FREE FROM AMBIGUITY AS TO PRECLUDE THE
CONSTRUCTION ADOPTED BY THE VETERANS' ADMINISTRATION IN REGULATION
3450.  TO THIS EXTENT, WE BELIEVE THE REASONING OF THE CIRCUIT COURT OF
APPEALS WAS IN ERROR.  BUT THAT ALONE WOULD NOT NECESSARILY INVALIDATE
ITS HOLDING SINCE, AS THE GOVERNMENT APPEARS TO CONCEDE, THE TERMS OF
SEC. 602(H)(2) ARE NOT UNAMBIGUOUSLY IN ACCORD WITH THE REGULATION. 
INDEED, IF THE AMBIGUITY INHERENT IN SEC. 602(H)(2) WERE FOUND IN THE
TERMS OF AN ORDINARY COMMERCIAL INSURANCE POLICY, THERE MIGHT WELL BE
SUBSTANTIAL GROUND FOR CONSTRUING IT IN FAVOR OF THE INSURED.  FN10 

THERE IS, OF COURSE, A MARKED DISTINCTION BETWEEN THE CRITERIA FOR
JUDICIAL CONSTRUCTION OF AN ORDINARY COMMERCIAL INSURANCE CONTRACT, AND
CONSTRUCTION OF THE PROVISIONS OF AN ACT OF CONGRESS SETTING UP A
SYSTEM OF NATIONAL LIFE INSURANCE FOR SERVICEMEN TO BE ADMINISTERED BY
A GOVERNMENTAL AGENCY.  THE STATUTORY PROVISIONS, WHERE AMBIGUOUS, ARE
TO BE CONSTRUED LIBERALLY TO EFFECTUATE THE BENEFICIAL PURPOSES THAT
CONGRESS HAD IN MIND.  IN THIS RESPECT, JUDICIAL CONSTRUCTION OF THE
STATUTE MAY APPEAR SIMILAR TO CONSTRUCTION OF A COMMERCIAL POLICY,
WHERE AMBIGUOUS PROVISIONS ARE GENERALLY CONSTRUED IN FAVOR OF THE
INSURED.  IN THE LATTER CASE, CONSTRUCTION FAVORABLE TO THE INSURED
RESTS ON THE THEORY THAT "THE PHRASEOLOGY OF CONTRACTS OF INSURANCE IS
THAT CHOSEN BY THE INSURER AND THE CONTRACT IN FIXED FORM IS TENDERED
TO THE PROSPECTIVE POLICY HOLDER WHO IS OFTEN WITHOUT TECHNICAL
TRAINING, AND WHO RARELY ACCEPTS IT WITH A LAWYER AT HIS ELBOW.  SO IF
ITS LANGUAGE IS REASONABLY OPEN TO TWO CONSTRUCTIONS, THAT MORE
FAVORABLE TO THE INSURED WILL BE ADOPTED  ...  AND UNLESS IT IS OBVIOUS
THAT THE WORDS ARE INTENDED TO BE USED IN THEIR TECHNICAL CONNOTATION
THEY WILL BE GIVEN THE MEANING THAT COMMON SPEECH IMPORTS.  ...  "
FN11  BUT THE STATUTE IS AN EXPRESSION OF LEGISLATIVE INTENT RATHER
THAN THE EMBODIMENT OF AN AGREEMENT BETWEEN CONGRESS AND THE INSURED
PERSON.  ONLY THE INTENT OF CONGRESS, WHICH IN THIS CASE IS THE
INSURER, NEED BE ASCERTAINED TO FIX THE MEANING OF THE STATUTORY TERMS;
THE LAYMAN UNDERSTANDING OF THE POLICY HOLDER DOES NOT HAVE THE
RELEVANCE HERE THAT IT HAS IN THE CONSTRUCTION OF A COMMERCIAL
CONTRACT.  FN12 

ON THE OTHER HAND, WE THINK IT CLEAR THAT AN ADMINISTRATIVE
REGULATION PURPORTING TO CONSTRUE AN AMBIGUOUS SUBSECTION OF THE
NATIONAL LIFE INSURANCE ACT OF 1940 IS NOT AUTOMATICALLY TO BE DEEMED
VALID MERELY BECAUSE NOT PLAINLY INTERDICTED BY THE TERMS OF THE
PARTICULAR PROVISION CONSTRUED.  THE ADMINISTRATOR'S GENERAL RULE
MAKING POWER, WHICH WAS EXERCISED IN ISSUING REGULATION 3450, IS
LIMITED BY THE STATUTE TO "SUCH RULES AND REGULATIONS, NOT INCONSISTENT
WITH THE PROVISIONS OF THIS CHAPTER, AS ARE NECESSARY OR APPROPRIATE TO
CARRY OUT ITS PURPOSES  ...  "  FN13  MOREOVER, A 1946 AMENDMENT TO
SEC. 608, DESIGNED TO ELIMINATE THE FINALITY OF THE DECISIONS OF THE
ADMINISTRATOR ON INSURANCE MATTERS,  FN14  AMENDED THE LAST SENTENCE OF
SEC. 608 TO ADD THE WORDS SET OUT IN ITALICS: 

"EXCEPT IN THE EVENT OF SUIT AS PROVIDED IN SECTION 617 HEREOF, OR
OTHER APPROPRIATE COURT PROCEEDINGS, ALL DECISIONS RENDERED BY THE
ADMINISTRATOR UNDER THE PROVISIONS OF THIS ACT, OR REGULATIONS PROPERLY
ISSUED PURSUANT THERETO, SHALL BE FINAL AND CONCLUSIVE ON ALL QUESTIONS
OF LAW OR FACT, AND NO OTHER OFFICIAL OF THE UNITED STATES, EXCEPT A
JUDGE OR JUDGES OF UNITED STATES COURTS, SHALL HAVE JURISDICTION TO
REVIEW ANY SUCH DECISIONS." 

THE EXTENSION OF PROCEDURES AVAILABLE TO SECURE JUDICIAL REVIEW, THE
INTERPOLATION OF THE WORD "PROPERLY," AND THE ADDITION, PRESUMABLY OUT
OF AN ABUNDANCE OF CAUTION, OF THE TAUTOLOGICAL PHRASE "EXCEPT A JUDGE
OR JUDGES OF UNITED STATES COURTS" ARE INDICATIVE OF CONGRESSIONAL
CONCERN THAT THE REGULATIONS OF THE VETERANS' ADMINISTRATION BE SUBJECT
TO MORE THAN CASUAL JUDICIAL SCRUTINY WHEN THEY ARE BASED UPON A
CONTROVERTED CONSTRUCTION OF THE STATUTE.    ACCORDINGLY, SEC.
602(H)(2) MUST BE READ IN THE FULL CONTEXT OF RELATED SECTIONS OF THE
STATUTE AND OTHER INDICIA OF LEGISLATIVE INTENT BEFORE WE CAN
ADEQUATELY DETERMINE WHETHER THE REGULATION IS "NOT INCONSISTENT" WITH
THE PROVISIONS OF THE ACT AND WHETHER IT IS "NECESSARY OR APPROPRIATE
TO CARRY OUT ITS PURPOSES."  WE TURN THEREFORE FROM NARROW, SEMANTIC
CONSIDERATIONS TO A BROADER CONTEXT IN WHICH THE INTENT OF CONGRESS CAN
BE MORE READILY COMPREHENDED. 

THE PROPER MEANING OF SEC. 602(H)(2) BECOMES APPARENT WHEN THE
RESPECTIVE ASSUMPTIONS AND CONSEQUENCES OF EACH OF THE TWO ALTERNATIVE
INTERPRETATIONS BEFORE US ARE TESTED AGAINST THE LEGISLATIVE HISTORY
AND THE STATUTE VIEWED IN ITS ENTIRETY.  THE CONSTRUCTION ADOPTED BY
THE CIRCUIT COURT OF APPEALS WOULD RESULT IN CONFERRING A FAR GREATER
RETURN TO BENEFICIARIES IN THE GROUP COVERED BY SEC. 602(H)(2), I.E.,
OVER THIRTY AT THE TIME OF THE INSURED'S DEATH, THAN THE RETURN TO
WHICH FIRST BENEFICIARIES COVERED BY SEC. 602(H)(1), I.E., UNDER THIRTY
AT THE INSURED'S DEATH, ARE ENTITLED.  IT IS UNQUESTIONED THAT THE
LATTER GROUP, UNDER THE ORIGINAL STATUTORY PROVISIONS,  FN15  WERE
ENTITLED ONLY TO 240 MONTHLY INSTALLMENTS (I.E., OVER A 20-YEAR PERIOD)
WHICH IN THE AGGREGATE EQUAL THE FACE VALUE PLUS INTEREST, WITH NO
FURTHER INSTALLMENTS PAYABLE THEREAFTER, WHETHER OR NOT THE PAYEE
SURVIVED THAT LIMITED PERIOD.  BUT, UNDER THE RULING OF THE CIRCUIT
COURT OF APPEALS, PAYMENTS IN MANY IF NOT MOST OF THE CASES INVOLVING
THE FORMER GROUP OF BENEFICIARIES WOULD EXCEED THE FACE VALUE OF THE
POLICY SINCE ANY FIRST BENEFICIARY WHO SURVIVED THE 10-YEAR PERIOD OF
SEC. 602(H)(2) WOULD AUTOMATICALLY SECURE MORE THAN THAT AMOUNT.  IN
FACT, THE ACTUAL VALUE OF A POLICY, AT MATURITY, TO A 30-YEAR OLD
BENEFICIARY, UNDER THIS RULING, WOULD BE ALMOST TWO AND A HALF TIMES
ITS FACE AMOUNT,  FN16  WHEREAS THE 29-YEAR OLD BENEFICIARY, PAID IN
ACCORDANCE WITH SEC. 602(H)(1)(WHOSE INTERPRETATION IS NOT OPEN TO
QUESTION), COULD NEVER RECEIVE MORE THAN THE FACE AMOUNT, PLUS
INTEREST.  AND THE AGGREGATE OF GUARANTEED AND CONTINUING PAYMENTS MADE
AT SO HIGH A RATE UNDER SEC. 602(H)(2) WOULD NECESSARILY GREATLY EXCEED
THE TOTAL FACE VALUE OF THE POLICIES ISSUED UNDER THE STATUTE.  FN17 

THIS SHARP DISPARITY BETWEEN THE TWO DIFFERENT GROUPS OF
BENEFICIARIES DOES NOT RESULT UNDER THE REGULATION, SINCE THE AGE OF
THE FIRST BENEFICIARY IS USED BY THE REGULATION AS THE BASIS OF AN
ACTUARIAL CALCULATION PURSUANT TO A FORMULA WHEREBY TOTAL PAYMENTS
UNDER SEC. 602(H)(2) APPROXIMATE THE FACE VALUE OF THE POLICIES, PLUS
INTEREST.  THE EXTENT OF THE DIFFERENCE IN RESULT IS INDICATED BY THE
TABLE, SET FORTH IN THE MARGIN,  FN18  OF COMPARATIVE PRESENT VALUES OF
THE MONTHLY INSTALLMENTS UNDER THE REGULATION AND UNDER THE VIEW OF THE
CIRCUIT COURT OF APPEALS, TAKING INTO ACCOUNT THE BENEFICIARY'S LIFE
EXPECTANCY AS SHOWN BY THE AMERICAN EXPERIENCE TABLE OF MORTALITY. 

THE CIRCUIT COURT THOUGHT IT PROBABLE THAT CONGRESS ORIGINALLY
INTENDED THE HIGHER RATE OF BENEFIT PAYMENTS TO BE RESTRICTED TO THE
BENEFICIARIES COVERED BY SEC. 602(H)(2) BECAUSE THAT GROUP OF PERSONS
OVER 30 AT THE TIME OF THE SERVICEMAN'S DEATH WOULD INCLUDE PARENTS,
WHO WOULD BE AT LEAST MIDDLE-AGED, AND "YOUNG WIDOWS WITH SMALL
CHILDREN WHOSE TEN YEARS OF MONTHLY PAYMENTS WOULD END AT THE MOST
NEEDED TIME."  FN19  THIS WOULD HARDLY SERVE TO EXPLAIN, HOWEVER, WHY
CONGRESS WOULD INTENTIONALLY DISCRIMINATE IN SO SUBSTANTIAL A MANNER
AGAINST A SIMILARLY DESERVING BUT SLIGHTLY YOUNGER WIDOW IN THE UNDER
THIRTY CATEGORY BY FAILING TO EXTEND COMPARABLE BENEFITS TO THE LATTER
GROUP. 

THE DISPARITY IN BENEFITS AVAILABLE UNDER THE RESPONDENT'S VIEW, AS
CONTRASTED WITH THOSE AVAILABLE UNDER THE REGULATION, IS REFLECTED IN A
CORRESPONDINGLY LARGE INCREASE, UNDER THE FORMER VIEW, IN THE TOTAL
LIABILITY FOR BENEFICIAL PAYMENTS.  FN20  THIS GREATLY ENHANCED
LIABILITY COULD BE MET, THEORETICALLY, IN EITHER OF TWO WAYS:  BY
SPECIAL CONGRESSIONAL APPROPRIATIONS, OR BY GREATLY INCREASED PREMIUM
RATES SUBSTANTIALLY ABOVE THOSE WHICH ARE NOW SET BY THE VETERANS'
ADMINISTRATION ON THE ASSUMPTION THAT THE REGULATION IS PROPER. 

THE CIRCUIT COURT OF APPEALS WAS OF THE OPINION THAT CONGRESS
INTENDED THE GOVERNMENT TO BEAR THE BURDEN OF THIS EXTRAORDINARY
LIABILITY.  BY EXPRESS PROVISIONS IN THE 1940 ACT, CONGRESS SPECIFIED
THAT THE UNITED STATES WOULD BEAR THE ADMINISTRATIVE COSTS OF THE
INSURANCE SYSTEM N21, EXCESS MORTALITY AND DISABILITY COST RESULTING
FROM THE EXTRA HAZARDS OF WAR,  FN22  AND THE COST OF REIMBURSING THE
RESERVE FUND FOR WAIVING RECOVERY OF BENEFIT PAYMENTS ERRONEOUSLY MADE
WHERE IT WOULD BE INEQUITABLE TO REQUIRE REPAYMENT.  FN23  CONGRESS
OBVIOUSLY CONTEMPLATED THAT THE RESERVE FUND TO MEET THE LIABILITIES OF
NATIONAL SERVICE LIFE INSURANCE POLICIES WAS TO BE SELF-SUPPORTING,
SUSTAINED BY THE PREMIUMS PAID AND BY THE YIELD OF PREMIUMS INVESTED,
IN ALL RESPECTS ASIDE FROM THOSE EXCEPTIONAL SITUATIONS WHERE THE
STATUTE SPECIFICALLY DESIGNATED THAT THE GOVERNMENT WOULD BEAR THE
FINANCIAL BURDEN.  YET CONGRESS NOWHERE SPECIFIED THAT THE UNITED
STATES WOULD BEAR THE HUGE COST OF THE ENHANCED LIABILITY THAT IT WOULD
NECESSARILY HAVE ANTICIPATED HAD IT IMPRESSED UPON SEC. 602(H)(2) THE
MEANING THAT RESPONDENT FINDS THERE; AND THAT STRIKING OMISSION IS
PERSUASIVE, IN THE ABSENCE OF COGENT CONSIDERATIONS TO THE CONTRARY,
THAT NO GENEROSITY OF THIS MAGNITUDE WAS CONTEMPLATED.  FN24 

NOR CAN IT BE ASSUMED THAT CONGRESS ENVISAGED THE SETTING OF PREMIUM
RATES HIGH ENOUGH TO MEET AN ADDED LIABILITY OF SUCH PROPORTIONS. 
SENATOR HARRISON, WHO WAS IN CHARGE OF THE ORIGINAL BILL, INFORMED THE
SENATE THAT "PREMIUM RATES BASED ON THE AVERAGE AGE - 25 YEARS - WILL
BE 67 CENTS PER THOUSAND PER MONTH."  FN25  SUCH A RATE, THOUGH
ADEQUATE TO COVER PAYMENTS UNDER REGULATION 3450, WOULD BE COMPLETELY
INADEQUATE UNDER THE RESPONDENT'S CONSTRUCTION. 

MOREOVER, WHATEVER AMBIGUITY EXISTS IN THE LANGUAGE OF SEC. 602(H)(2)
IS DISPELLED BY A CONSIDERATION OF THE PRACTICE IN EFFECT UNDER UNITED
STATES GOVERNMENT LIFE INSURANCE, ESTABLISHED FOR WORLD WAR I VETERANS,
AND THE LONG-ESTABLISHED PRACTICE OF COMMERCIAL INSURANCE COMPANIES,
VIEWED AS PART OF THE BACKGROUND OF EXPERIENCE WHICH THE DRAFTSMEN OF
SEC. 602(H)(2) MAY BE ASSUMED TO HAVE HAD IN MIND. 

THE WORLD WAR VETERANS ACT, 1924,  FN26  PROVIDED FOR PAYMENT OF
INSURANCE BENEFITS IN 240 EQUAL MONTHLY INSTALLMENTS, BUT AUTHORIZED
THE VETERANS' ADMINISTRATION (FORMERLY THE VETERANS' BUREAU) TO PROVIDE
IN THE CONTRACT OF INSURANCE "FOR OPTIONAL SETTLEMENTS, TO BE SELECTED
BY THE INSURED, WHEREBY SUCH INSURANCE MAY BE MADE PAYABLE EITHER IN
ONE SUM OR IN INSTALLMENTS FOR THIRTY-SIX MONTHS OR MORE.  ...  "  ONE
OF THE OPTIONS, SET UP BY REGULATION 3068 UNDER THIS STATUTORY
AUTHORIZATION, PROVIDED THAT MONTHLY INSTALLMENTS IN AMOUNTS DESIGNATED
IN AN APPENDED TABLE - THE AMOUNTS BEING GRADUATED, JUST AS IN
REGULATION 3450, WITH THE "AGE OF BENEFICIARY AT TIME OF DEATH OF THE
INSURED" - "WILL BE PAYABLE THROUGHOUT THE LIFETIME OF THE DESIGNATED
BENEFICIARY, BUT IF SUCH DESIGNATED BENEFICIARY DIES BEFORE 240 SUCH
INSTALLMENTS HAVE BEEN PAID, THE REMAINING UNPAID MONTHLY INSTALLMENTS
WILL BE PAYABLE IN ACCORDANCE WITH THE BENEFICIARY PROVISIONS OF THE
POLICY."  FN27 

IT SEEMS APPARENT TO US THAT THE CONGRESSIONAL DRAFTSMEN, IN FRAMING
SEC. 602(H)(2), WERE UNDOUBTEDLY STRIVING TO INCORPORATE INTO THE 1940
ACT A PROVISION MODELED ON THE LIFE-ANNUITY-WITH-240-PAYMENTS-CERTAIN
OPTION SET UP BY REGULATION 3068 UNDER THE WORLD WAR VETERANS ACT OF
1924, DEVIATING MATERIALLY ONLY IN THE NUMBER OF PAYMENTS GUARANTEED. 
TRUE, SEC. 602(H)(2) DOES NOT ITSELF DEFINE EXPRESSLY THE METHOD OF
COMPUTATION TO BE USED BY THE ADMINISTRATOR IN DETERMINING THE SIZE OF
THE MONTHLY INSTALLMENTS IN ANY GIVEN CASE.  BUT, TAKING INTO ACCOUNT
THE FACTORS PREVIOUSLY SET FORTH AND CONSIDERING THEM AGAINST THE
BACKGROUND OF EXPERIENCE UNDER THE 1924 ACT, THE ONLY REASONABLE
CONCLUSION IS THAT CONGRESS INTENDED THE CALCULATION TO BE AN ACTUARIAL
ONE, BASED ON THE AGE OF THE BENEFICIARY.  TO SUBSCRIBE TO THE OPPOSITE
CONCLUSION, WE MUST BELIEVE THAT CONGRESS INTENDED, BY ITS WORDING OF
SEC. 602(H)(2), TO BESTOW UPON BENEFICIARIES OF WORLD WAR II SERVICEMEN
TOTAL PAYMENTS COMPLETELY DISPROPORTIONATE TO THOSE AVAILABLE TO
BENEFICIARIES OF WORLD WAR.  I SERVICEMEN.  TO BELIEVE THAT CONGRESS,
BY THE ENACTMENT OF A SOMEWHAT AMBIGUOUS PROVISION, INTENDED THIS
DISPROPORTIONATE RESULT ALONG WITH THE OTHER DISPARITIES THAT HAVE BEEN
SHOWN TO BE REQUIRED BY THE RESPONDENT'S VIEW, PUTS TOO GREAT A STRAIN
UPON THE IMAGINATION. 

MOREOVER, THE CONGRESSIONAL DRAFTSMEN OF SEC. 602(H)(2), WITH THE
EXAMPLE BEFORE THEM OF THE 1924 ACT AND THE SIMILAR PRACTICE OF
STANDARD COMMERCIAL INSURANCE COMPANIES, UNDOUBTEDLY CONSIDERED THAT
EVEN THE VERY WORDING OF THAT SUBSECTION, WITHOUT MORE, NECESSARILY
IMPLIED THAT THE ADMINISTRATOR WAS TO FOLLOW THE EXISTING PRACTICE IN
CALCULATING THE SIZE OF THE MONTHLY INSTALLMENTS.  AS PREVIOUSLY NOTED,
THE TERM "CERTAIN" APPEARING IN THE PHRASE "EQUAL MONTHLY INSTALLMENTS
FOR ONE HUNDRED AND TWENTY MONTHS CERTAIN" IS A TECHNICAL WORD THAT
CONNOTES, BECAUSE OF THE CONTEXT IN WHICH IT IS COMMONLY USED IN
STANDARD COMMERCIAL POLICIES, AN ACTUARIAL CALCULATION OF THE MONTHLY
INSTALLMENTS PAYABLE. 

FOR EXAMPLE, ONE OF THE STANDARD LIFE INSURANCE POLICIES USED IN 1940
PROVIDED FOR A LIFE INCOME OPTION TO BE "MADE PAYABLE IN EQUAL ANNUAL,
SEMI-ANNUAL, QUARTERLY OR MONTHLY INSTALMENTS FOR TEN OR TWENTY YEARS
CERTAIN, WITH PAYMENTS CONTINUING DURING THE REMAINING LIFETIME OF THE
PERSON UPON WHOSE LIFE THE INCOME DEPENDS  ...  THE FIRST INSTALMENT
WILL BE DUE UPON THE DATE ON WHICH THE OPTION BECOMES OPERATIVE.  THE
AMOUNT OF SUCH INSTALMENTS SHALL BE DETERMINED IN ACCORDANCE WITH THE
TABLE OF INSTALMENTS ON THE FOLLOWING PAGE, WHICH INSTALMENTS INCLUDE
INTEREST AT THE RATE OF 3% PER ANNUM, AND SHALL BE BASED ON THE SEX AND
THE AGE AT BIRTHDAY NEAREST THE DUE DATE OF THE FIRST INSTALMENT, OF
THE PERSON UPON WHOSE LIFE THE INCOME DEPENDS.  ...  "  FN28  ANOTHER
EXAMPLE, CLOSER TO THE CONCISE FORM OF SEC. 602(H)(2), THOUGH USING THE
TERM "FIXED" RATHER THAN "CERTAIN," IS AN OPTION WHICH PROVIDES FOR
"THE PAYMENT OF EQUAL MONTHLY INSTALMENTS IN ACCORDANCE WITH THE TABLE
BELOW (A TABLE WHOSE PAYMENTS ARE GRADUATED IN AMOUNT WITH RESPECT TO
THE "AGE OF PAYEE NEAREST BIRTHDAY AT DATE OF FIRST INSTALMENT"), TO
THE INSURED OR THE BENEFICIARY, AS THE CASE MAY BE, FOR A FIXED PERIOD
OF TEN YEARS AND FOR SO LONG THEREAFTER AS THE PAYEE SHALL SURVIVE, THE
FIRST INSTALMENT BEING PAYABLE IMMEDIATELY."  FN29 

CONGRESS MAY ALSO HAVE ASSUMED THAT ITS INTENT WAS MADE MANIFEST BY
THE JUXTAPOSITION OF SEC. 602(H)(2) WITH OTHER PROVISIONS HAVING
SIMILAR CONNOTATIONS.  SECTION 605(B), FOR EXAMPLE, AUTHORIZES THE
ADMINISTRATOR "TO SET ASIDE OUT OF (THE NATIONAL SERVICE LIFE INSURANCE
FUND) SUCH RESERVE AMOUNTS AS MAY BE REQUIRED UNDER ACCEPTED ACTUARIAL
PRINCIPLES, TO MEET ALL LIABILITIES UNDER SUCH INSURANCE  ...."  AND
SEC. 602(E) PROVIDES THAT THE PREMIUM RATES, ALL "CASH, LOAN, PAID UP,
AND EXTENDED VALUES, AND ALL OTHER CALCULATIONS IN CONNECTION WITH SUCH
INSURANCE, SHALL BE BASED UPON SAID AMERICAN EXPERIENCE TABLE OF
MORTALITY AND INTEREST AT THE RATE OF 3 PER CENTUM PER ANNUM." 

IN ANY EVENT, THE SUBSEQUENT LEGISLATIVE HISTORY OF THE STATUTE
CLEARLY INDICATES CONGRESSIONAL APPROVAL OF THE CONSTRUCTION PUT UPON
SEC. 602(H)(2) BY REGULATION 3450.  A PROPOSED BILL WAS SUGGESTED IN A
LETTER WRITTEN BY THE ADMINISTRATOR OF THE VETERANS' ADMINISTRATION TO
CONGRESS IN JUNE, 1944, TO AMEND SECS. 602(H)(1) AND 602(H)(2) OF THE
1940 ACT BY AUTHORIZING "THE ELECTION OF A REFUND LIFE INCOME IN LIEU
OF THE MODE OF PAYMENTS NOW PROVIDED."  FN30  IN EXPLAINING THE
NECESSITY OF THE AMENDMENT, THE ADMINISTRATOR POINTED OUT THAT IF "A
WIDOW HAVING A MINOR CHILD, WHO IS ENTITLED TO PAYMENTS AS PROVIDED IN
OF INSURANCE, PAYMENTS UNDER THE CONTRACT WILL CEASE AFTER PAYMENT OF
120 INSTALLMENTS HAS BEEN COMPLETED EVEN THOUGH THE TOTAL AMOUNT OF THE
INSTALLMENTS PAID OR PAYABLE IS LESS THAN THE FACE VALUE OF THE POLICY
AND EVEN THOUGH THE CHILD IS TOO YOUNG TO BE CAPABLE OF SELF-SUPPORT AT
THE TIME PAYMENTS EXPIRE.  THE PROPOSED AMENDMENTS WILL AUTHORIZE THE
PAYMENT OF THE FULL FACE VALUE OF THE INSURANCE IN EVERY INSTANCE AND
WILL ALSO INSURE AN INCOME THROUGHOUT THE LIFETIME OF THE FIRST
BENEFICIARY UNDER THE POLICY."  FN31 

IN OTHER WORDS, THE AMENDMENT WAS PROPOSED PARTLY TO EXTEND A LIFE
INCOME OPTION TO BENEFICIARIES COVERED BY SEC. 602(H)(1), WHO
THERETOFORE HAD BEEN ELIGIBLE ONLY FOR THE 240-PAYMENT PLAN, AND PARTLY
TO PROVIDE A SOLUTION FOR THE INEQUITABLE SITUATION PRESENTED IN
CERTAIN CASES COVERED BY THE PROVISIONS OF SEC. 602(H)(2), WHEN THE 120
INSTALLMENTS CERTAIN AMOUNTED TO LESS THAN THE FACE VALUE OF THE POLICY
AND THE FIRST BENEFICIARY DIED BEFORE HAVING RECEIVED AN AMOUNT EQUAL
TO THAT FACE VALUE.  THE INEQUITABLE SITUATION THUS CONSIDERED TO BE
PRESENT UNDER SEC. 602(H)(2) AND SOUGHT TO BE AMELIORATED BY THE
PROPOSED AMENDMENT COULD NOT HAVE EXISTED, OF COURSE, IF THE CIRCUIT
COURT OF APPEALS WERE CORRECT IN THE CONSTRUCTION IT HAS PUT UPON SEC.
602(H)(2). 

THE SENATE COMMITTEE ON FINANCE, IN RECOMMENDING PASSAGE OF THE BILL,
ADOPTED THE ADMINISTRATOR'S LETTER AS EXPLANATORY OF THE VARIOUS
PROVISIONS OF THE BILL  FN32  AND INDICATED THEREBY ITS APPROVAL OF THE
INTERPRETATION EMBODIED IN REGULATION 3450, SINCE OTHERWISE A MAJOR
PURPOSE CLAIMED TO BE EFFECTED BY THE AMENDMENT WOULD HAVE BEEN
COMPLETELY ILLUSORY.  MOREOVER, A TABLE INCLUDED IN THE ADMINISTRATOR'S
LETTER, COMPARING THE AMOUNT OF EACH MONTHLY INSTALLMENT AND THE SUM OF
THE GUARANTEED INSTALLMENTS UNDER THE NEW REFUND LIFE INCOME PLAN AND
UNDER SEC. 602(H)(2), CLEARLY APPRISED CONGRESS OF THE CONSTRUCTION PUT
UPON THE LATTER SECTION BY THE REGULATION.  HENCE, IN ENACTING THE
AMENDMENT  FN33  CONGRESS INDICATED ITS APPROVAL OF THE INTERPRETATION
UPON WHICH THE REGULATION IS BASED.  FN34    SIMILAR RECOGNITION THAT
IN MANY INSTANCES "THE AGGREGATE AMOUNT OF INSURANCE ACTUALLY PAYABLE"
UNDER THE ORIGINAL MODE OF SETTLEMENT PROVIDED BY SEC. 602(H)(2)
"AMOUNTED TO MUCH LESS THAN THE FACE OF THE POLICY" WAS GIVEN BY THE
HOUSE COMMITTEE ON WORLD WAR VETERANS' LEGISLATION, IN RECOMMENDING A
1946 AMENDMENT TO PERMIT POLICIES ON WHICH PAYMENTS HAD BEEN MADE PRIOR
TO THE 1944 ACT TO ELECT THE REFUND LIFE INCOME PLAN.  FN35  THE 1946
BILL ALSO INCLUDED A PROVISION SETTING UP OPTIONAL MODES OF SETTLEMENT
FOR INSURANCE MATURING ON OR AFTER AUGUST 1, 1946, AND THE THIRD OPTION
WAS COUCHED IN LANGUAGE IDENTICAL IN EVERY SIGNIFICANT RESPECT TO THAT
USED IN THE ORIGINAL SEC. 602(H)(2).  FN36  ACCORDINGLY, WHEN CONGRESS
ENACTED THE 1946 BILL, IT IN EFFECT INCORPORATED THE OLD PROVISION OF
SEC. 602(H)(2), WHICH WAS THE BASIS FOR REGULATION 3450, AND IN OUR
VIEW THEREBY ACCEPTED THE CONSTRUCTION EMBODIED IN THAT REGULATION,
WHICH HAD BEEN SO CLEARLY BROUGHT TO ITS ATTENTION ON THIS AND PRIOR
OCCASIONS. 

FURTHER EVIDENCE, WERE ANY NEEDED, THAT CONGRESS ACCEPTED AS ITS OWN
THIS INTERPRETATION OF THE LANGUAGE USED IN SEC. 602(H)(2) IS SUPPLIED
BY THE SIGNIFICANT DISTINCTION MAINTAINED IN THIS REENACTMENT BETWEEN
THE MODE OF PAYMENT ORIGINALLY PROVIDED BY SEC. 602(H)(2) AND THE
REFUND LIFE INCOME PLAN, VIEWED IN THE LIGHT OF THE HOUSE COMMITTEE
REPORT ON THE BILL.  IT IS HARDLY CONCEIVABLE - AND IF CONCEIVABLE,
HARDLY EXPLICABLE - THAT CONGRESS MEANT ONE THING BY THE LANGUAGE IT
USED IN SEC. 602(H)(2) WHEN ENACTING THE ORIGINAL MEASURE IN 1940, AND
ANOTHER, QUITE DIFFERENT THING, WHEN IT REENACTED THAT LANGUAGE IN
1946. 

IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, THE VALIDITY OF
REGULATION 3450 IS SUSTAINED AND THE DECISION OF THE CIRCUIT COURT OF
APPEALS IS REVERSED. 

FN1  6 FED. REG. 1162, 1166, 38 C.F.R. 1941 SUPP. SEC. 10.3450. 

FN2  PART I, TITLE VI OF THE SECOND REVENUE ACT OF 1940, ACT OF OCT.
8, 1940, C. 757, 54 STAT. 974, 1008, 38 U.S.C. SECS. 801, 802(H)(2). 

FN3  PURSUANT TO SEC. 617 OF THE ACT, 38 U.S.C. SEC. 817. 

FN4  SEC. 602(G), 38 U.S.C. SEC. 802(G). 

FN5  SEC. 608, 38 U.S.C. SEC. 808:  "THE ADMINISTRATOR, SUBJECT TO
THE GENERAL DIRECTION OF THE PRESIDENT, SHALL ADMINISTER, EXECUTE AND
ENFORCE THE PROVISIONS OF THIS CHAPTER, SHALL HAVE POWER TO MAKE SUCH
RULES AND REGULATIONS, NOT INCONSISTENT WITH THE PROVISIONS OF THIS
CHAPTER, AS ARE NECESSARY OR APPROPRIATE TO CARRY OUT ITS PURPOSES, AND
SHALL DECIDE ALL QUESTIONS ARISING HEREUNDER.  ...  " 

FN6  "PAYMENT TO FIRST BENEFICIARY.  UPON DUE PROOF OF THE DEATH OF
THE INSURED WHILE A NATIONAL SERVICE LIFE INSURANCE POLICY IS IN FORCE,
THE MONTHLY INSTALLMENTS, WITHOUT INTEREST, WHICH HAVE ACCRUED SINCE
THE DEATH OF THE INSURED (THE FIRST INSTALLMENT BEING DUE ON THE DATE
OF DEATH OF THE INSURED) AND THE MONTHLY INSTALLMENTS WHICH THEREAFTER
BECOME PAYABLE IN ACCORDANCE WITH THE PROVISIONS OF THE POLICY, SHALL
BE PAID TO THE BENEFICIARY OR BENEFICIARIES ENTITLED IN THE FOLLOWING
MANNER: 

"(A)  IF THE BENEFICIARY TO WHOM PAYMENT IS FIRST MADE IS UNDER
THIRTY YEARS OF AGE AT THE TIME OF THE DEATH OF THE INSURED, PAYMENT
SHALL BE MADE IN 240 EQUAL MONTHLY INSTALLMENTS AT THE RATE OF $5.51
FOR EACH $1,000 OF SUCH INSURANCE. 

"(B) IF THE BENEFICIARY TO WHOM PAYMENT IS FIRST MADE IS THIRTY OR
MORE YEARS OF AGE AT THE TIME OF THE DEATH OF THE INSURED, PAYMENT
SHALL BE MADE IN EQUAL MONTHLY INSTALLMENTS FOR 120 MONTHS CERTAIN,
WITH SUCH PAYMENT CONTINUING THROUGHOUT THE REMAINING LIFETIME OF SUCH
BENEFICIARY.  THE AMOUNT OF THE MONTHLY INSTALLMENT FOR EACH $1,000 OF
INSURANCE SHALL BE DETERMINED BY THE AGE OF THE BENEFICIARY AS OF LAST
BIRTHDAY AT THE TIME OF THE DEATH OF THE INSURED, IN ACCORDANCE WITH
THE FOLLOWING SCHEDULE BASED UPON THE AMERICAN EXPERIENCE TABLE OF
MORTALITY AND INTEREST AT THE RATE OF 3 PERCENTUM PER ANNUM:

                            AMOUNT OF 

AGE OF BENEFICIARY AT DATE                      EACH MONTHLY 

OF DEATH OF INSURED                              INSTALLMENT 

30 ................................................... $3.97 

     .      .         .         .         . 

40 ...................................................  4.50 

     .         .        .         .         . 

50 ...................................................  5.39 

     .         .         .         .         . 

54 ...................................................  5.90 

     .         .         .  .         . 

60 ...................................................  6.81 

     .         .         .         .    . 

68 ...................................................  8.19 

     .         .         .         .         . 

70 ...................................................  8.51 

     .         .         .         .         . 

80 ...................................................  9.55 

.         .         .         .         . 

FN7  IF THE FIRST BENEFICIARY FAILS TO SURVIVE THE 10-YEAR PERIOD,
AFTER HAVING RECEIVED AT LEAST ONE INSTALLMENT, "THEREAFTER MONTHLY
INSTALLMENTS IN THE SAME AMOUNT SHALL BE PAID TO THE PERSON OR PERSONS
ENTITLED AS BENEFICIARY UNTIL ALL OF THE INSTALLMENTS CERTAIN SHALL
HAVE BEEN PAID."  REGULATION 3451, 6 FED. REG. 1162, 1166, 38 C.F.R.
CUM. SUPP. SEC. 10.3451. 

FN8  SEE TABLE, INFRA NOTE 18. 

FN9  SEE EXAMPLES, IN THE TEXT INFRA, OF STANDARD USAGE OF THIS TERM
IN COMMERCIAL INSURANCE POLICIES. 

FN10  SEE ASCHENBRENNER V. UNITED STATES FIDELITY & GUARANTY CO., 292
U.S. 80, 84 ET SEQ. (1934); MANUFACTURERS' ACCIDENT INDEMNITY CO. V.
DORGAN, 58 F. 945, 956(1893). 

FN11  ASCHENBRENNER V. UNITED STATES FIDELITY & GUARANTY CO., SUPRA
NOTE 10, AT 84-85. 

FN12  THIS IS NOT, OF COURSE, TO DENY THAT THE STATUTE AND
REGULATIONS ADOPTED PURSUANT TO IT GIVE RISE TO AN OBLIGATION THAT HAS
THE FORCE OF A BINDING CONTRACT WITH THE SERVICEMAN INSURED.  SEE LYNCH
V. UNITED STATES, 292 U.S. 571, 579(1934). 

FN13  SEC. 608, 38 U.S.C. SEC. 808, QUOTED IN PART SUPRA, NOTE 6. 

FN14  S. REP. NO. 1705, 79TH CONG., 2D SESS. 9; H.R. REP. NO. 2002,
79TH CONG., 2D SESS. 10; SEC. 12 OF THE 1946 AMENDMENT, 60 STAT. 781,
788, AMENDING SEC. 608. 

FN15  THE STATUTE WAS AMENDED IN 1946 TO MAKE ALL FUTURE
BENEFICIARIES, REGARDLESS OF AGE, ELIGIBLE FOR THE LIFE ANNUITY WITH
120 GUARANTEED PAYMENTS PREVIOUSLY LIMITED TO THOSE OVER THIRTY.  SEC.
9 OF THE 1946 AMENDMENT, 60 STAT. 781, 785, ADDING SUBSECTION (T)(3) TO
SEC. 602 OF THE 1940 ACT. 

FN16  SEE TABLE, INFRA NOTE 18. 

FN17  IBID. 

AS MENTIONED IN NOTE 15 SUPRA, THE LIFE ANNUITY WITH 120 GUARANTEED
PAYMENTS WAS MADE AVAILABLE IN 1946 TO ALL BENEFICIARIES REGARDLESS OF
AGE.  ACCEPTANCE OF RESPONDENT'S INTERPRETATION WOULD REQUIRE US TO
VIEW CONGRESS AS HAVING OFFERED, IN THE 1946 AMENDMENT, FOUR OPTIONAL
SETTLEMENTS (SEE NOTE 36 INFRA), THREE OF WHICH WOULD BE LIMITED IN
VALUE AT MATURITY TO THE FACE AMOUNT OF THE INSURANCE, WHILE THE FOURTH
OPTION WOULD OFFER A VALUE FAR IN EXCESS OF THE FACE AMOUNT AND WOULD
BE AVAILABLE TO ALL BENEFICIARIES WITHOUT REGARD TO THEIR AGE AT THE
INSURED'S DEATH. 

BY THE CALCULATIONS OF THE AMERICAN EXPERIENCE TABLE, A PERSON HAS TO
BE 68 YEARS OLD BEFORE HIS LIFE EXPECTANCY IS LESS THAN 10 YEARS. 
ACCORDINGLY, IN ALL CASES WHERE THE FIRST BENEFICIARY IS UNDER 68 YEARS
OF AGE AT THE TIME THE INSURED DIES, THE ACTUAL VALUE OF THE POLICY,
THUS COMPUTED, WOULD EXCEED ITS FACE AMOUNT.  THE ADMINISTRATOR
ESTIMATES THAT, ON THE APPROXIMATELY 2.1 BILLION DOLLARS OF DEATH
CLAIMS ALREADY INCURRED AND NOW BEING SETTLED UNDER THE PROVISION FOR
LIFE INCOME WITH INSTALLMENTS GUARANTEED FOR 120 MONTHS, THE ADDITIONAL
LIABILITY THAT WOULD RESULT IF SETTLEMENT WERE REQUIRED TO BE MADE
PURSUANT TO THE CIRCUIT COURT'S HOLDING WOULD AMOUNT TO APPROXIMATELY
1.8 BILLION DOLLARS.  GOVERNMENT'S BRIEF, P. 67.  POTENTIAL LIABILITY
ON THE BILLIONS OF DOLLARS OF INSURANCE NOW IN FORCE AND YET TO MATURE
WOULD SIMILARLY BE VASTLY INCREASED UNDER THIS VIEW. 

THE PRECISE SIZE OF THE LATTER LIABILITY IS OF COURSE PROBLEMATICAL. 
IN A LETTER TO THE SOLICITOR GENERAL, DATED OCTOBER 24, 1947, THE
VETERANS' ADMINISTRATION ESTIMATED THE AMOUNT OF INSURANCE IN FORCE AND
NOT YET MATURED AT 35 BILLION DOLLARS.  ASSUMING THAT ALL OF THAT
INSURANCE WOULD BE HELD TO MATURE AT DEATH AND THAT THE TYPICAL
BENEFICIARY WOULD BE A WOMAN AGED 30 AT THE DEATH OF HER HUSBAND, AND
THAT ALL POLICIES WOULD BE SETTLED UNDER THE LIFE INCOME OPTION WITH
INSTALLMENTS GUARANTEED FOR 120 MONTHS, THE ADMINISTRATOR ESTIMATED
THAT POTENTIAL LIABILITY UNDER RESPONDENT'S VIEW OF THE STATUTE MIGHT
BE ABOUT 97 BILLION DOLLARS, INSTEAD OF 35 BILLION DOLLARS (THE
POTENTIAL LIABILITY UNDER REGULATION 3450) - AN INCREASED FUTURE
LIABILITY OF 62 BILLION DOLLARS.  AND IF 10% OF ALL LAPSED POLICIES
WERE REINSTATED, THE POTENTIAL ADDITIONAL LIABILITY (ON THE BASIS OF
THE ABOVE ASSUMPTIONS) WOULD BE ABOUT 19.7 BILLION DOLLARS. 

WHILE THESE ASSUMPTIONS MAY BE OVERLY FAVORABLE TO THE GOVERNMENT'S
CONTENTIONS AND MAY NOT BE FULLY BORNE OUT BY THE COURSE OF FUTURE
EVENTS, IT IS OBVIOUS - EVEN ALLOWING FOR A WIDE MARGIN OF ERROR - THAT
THE ADDED POTENTIAL LIABILITY UNDER THE HOLDING OF THE CIRCUIT COURT OF
APPEALS MIGHT WELL AMOUNT TO BILLIONS OF DOLLARS. 

FN18

                            PRESENT VALUE       PRESENT VALUE

                            UNDER REGULATION     UNDER C.C.A. 7 

BENEFICIARY'S AGE                   3450      VIEW 

10..........................       $1,000       $2,786 

20..........................        1,000           2,633 

30..........................        1,000              2,421 

40..........................        1,000               2,136 

50..........................        1,000               1,783 

54..........................   1,000               1,629 

60..........................      1,000               1,411 

70..........................        1,000               1,129 

SEE APPENDIX D OF THE GOVERNMENT'S BRIEF FOR THE MATHEMATICAL
FORMULAE USED IN CONSTRUCTING THIS TABLE. 

FN19  TRANSCRIPT OF RECORD, P. 10. 

FN20  UNDER THE RESPONDENT'S VIEW, THIS EXTRAORDINARY PUTATIVE
LIABILITY MUST BE CONSIDERED TO HAVE BEEN TREMENDOUSLY INCREASED BY THE
EXTENSION OF THE SEC. 602(H)(2) METHOD OF PAYMENT TO ALL BENEFICIARIES
BY THE 1946 AMENDMENT WHICH REMOVED THE LIMITING AGE FACTOR.  SEE NOTE
15 SUPRA. 

FN21  SEC. 606, 38 U.S.C. SEC. 806. 

FN22  SEC. 607(A), 38 U.S.C. SEC. 807(A). 

FN23  SEC. 609, 38 U.S.C. SEC. 809.  SUBSEQUENT AMENDMENTS TO THE
1940 ACT ADDED OTHER SPECIFIED COSTS TO BE BORNE BY THE UNITED STATES. 
SEE, E.G., 38 U.S.C. (SUPP. V, 1946) SEC. 802 ET SEQ. 

FN24  CF. THE REASONING OF THE COURT, SPEAKING THROUGH MR. JUSTICE
HOLMES, IN PINE HILL COAL CO. V. UNITED STATES, 259 U.S. 191,
196(1922):  "A LIABILITY IN ANY CASE IS NOT TO BE IMPOSED UPON A
GOVERNMENT WITHOUT CLEAR WORDS.  ...  AND WHERE, AS HERE, THE LIABILITY
WOULD MOUNT TO GREAT SUMS, ONLY THE PLAINEST LANGUAGE COULD WARRANT A
COURT IN TAKING IT TO BE IMPOSED.  ... " 

FN25  86 CONG. REC. 12920(1940). 

FN26  TITLE III, 43 STAT. 607, 624, AS AMENDED, 38 U.S.C. SEC. 512. 

FN27  38 C.F.R. 10.3068. 

FN28  THE HANDY GUIDE TO STANDARD AND SPECIAL CONTRACTS (1940) 294. 

FN29  ID. AT 613. 

A THIRD ILLUSTRATION PROVIDES IN THE FOLLOWING TERMS FOR AN ELECTION
BETWEEN A PLAN SIMILAR TO THAT PROVIDED BY SEC. 602(H)(2) AS CONSTRUED
BY REGULATION 3450, AND THE REFUND LIFE INCOME PLAN PROVIDED BY THE
1944 AMENDMENT TO THE STATUTE (SEE NOTE 33 INFRA):  "THE COMPANY WILL
PAY EQUAL MONTHLY INSTALMENTS DURING THE PAYEE'S REMAINING LIFE, WITH
120 OR 240 INSTALMENTS CERTAIN OR WITH INSTALMENTS CERTAIN UNTIL THE
PROCEEDS ARE REFUNDED, AS MAY BE DESIGNATED IN THE ELECTION OF THE
OPTION, THE AMOUNT OF EACH INSTALMENT TO BE DETERMINED FROM THE TABLE
ENTITLED 'OPTION 4 - LIFE INCOME WITH INSTALMENTS CERTAIN' IN
ACCORDANCE WITH THE SEX OF THE PAYEE AND THE AGE OF THE PAYEE AT THE
PAYEE'S BIRTHDAY NEAREST TO THE DATE WHEN THE PROCEEDS OF THIS POLICY
SHALL BECOME PAYABLE, THE FIRST OF SAID INSTALMENTS TO BE PAYABLE
IMMEDIATELY.  ...  "  HANDY GUIDE, SUPRA NOTE 28, AT 983.  SEE ALSO ID.
AT 1284-85. 

FN30  S. REP. NO. 1105, 78TH CONG., 2D SESS. 2, QUOTING THE
ADMINISTRATOR'S LETTER. 

FN31  ID. 

FN32  ID. AT 1. 

FN33  SECTION 6 OF THE 1944 ACT, 58 STAT. 762, 763, AMENDED SEC.
602(H)(2) BY PROVIDING THAT THE ADMINISTRATOR "MAY INCLUDE A PROVISION
IN THE INSURANCE CONTRACT AUTHORIZING THE INSURED OR THE BENEFICIARY TO
ELECT, IN LIEU OF THIS MODE OF PAYMENT, A REFUND LIFE INCOME IN MONTHLY
INSTALLMENTS PAYABLE FOR SUCH PERIOD CERTAIN AS MAY BE REQUIRED IN
ORDER THAT THE SUM OF THE INSTALLMENTS CERTAIN, INCLUDING A LAST
INSTALLMENT OF SUCH REDUCED AMOUNT AS MAY BE NECESSARY, SHALL EQUAL THE
FACE VALUE OF THE CONTRACT LESS ANY INDEBTEDNESS WITH SUCH PAYMENTS
CONTINUING THROUGHOUT THE LIFETIME OF SUCH BENEFICIARY:  PROVIDED
FURTHER, THAT SUCH OPTIONAL SETTLEMENT SHALL NOT BE AVAILABLE IN ANY
CASE IN WHICH SUCH SETTLEMENT WOULD RESULT IN PAYMENTS OF INSTALLMENTS
OVER A SHORTER PERIOD THAN ONE HUNDRED AND TWENTY MONTHS, NOR IN ANY
CASE IN WHICH PAYMENTS OF INSURANCE INSTALLMENTS HAVE BEEN COMMENCED
PRIOR TO THE DATE OF THIS AMENDATORY ACT."  SECTION 5 OF THE 1944 ACT
ADDED A SIMILAR AMENDMENT TO SEC. 602(H)(1).    FN34  CF. ALEXANDER V.
MAYOR, 5 CRANCH 1, 7-8(1809). 

FN35  H.R. REP. NO. 2002, 79TH CONG., 2D SESS. 5.  THE MEASURE WAS
APPROVED BY CONGRESS, AND SEC. 5(A) OF THE ACT AMENDS SEC. 602(H)(1)
AND (2) AS INDICATED.  60 STAT. 781, 782-3. 

36 SECTION 9 OF THE ACT ADDED TO SEC. 602 A NEW SUBSECTION (T),
READING AS FOLLOWS:  "INSURANCE MATURING ON OR SUBSEQUENT TO THE DATE
OF ENACTMENT OF THE INSURANCE ACT OF 1946 SHALL BE PAYABLE IN
ACCORDANCE WITH THE FOLLOWING OPTIONAL MODES OF SETTLEMENT: 

"(1)  IN ONE SUM. 

"(2)  IN EQUAL MONTHLY INSTALLMENTS OF FROM THIRTY-SIX TO TWO HUNDRED
AND FORTY IN NUMBER, IN MULTIPLES OF TWELVE. 

"(3)  IN EQUAL MONTHLY INSTALLMENTS FOR ONE HUNDRED AND TWENTY MONTHS
CERTAIN WITH SUCH PAYMENTS CONTINUING DURING THE REMAINING LIFETIME OF
THE FIRST BENEFICIARY. 

"(4)  AS A REFUND LIFE INCOME IN MONTHLY INSTALLMENTS PAYABLE FOR
SUCH PERIOD CERTAIN AS MAY BE REQUIRED IN ORDER THAT THE SUM OF THE
INSTALLMENTS CERTAIN, INCLUDING A LAST INSTALLMENT OF SUCH REDUCED
AMOUNT AS MAY BE NECESSARY, SHALL EQUAL THE FACE VALUE OF THE CONTRACT,
LESS ANY INDEBTEDNESS, WITH SUCH PAYMENTS CONTINUING THROUGHOUT THE
LIFETIME OF THE FIRST BENEFICIARY: PROVIDED, THAT SUCH OPTIONAL
SETTLEMENT SHALL NOT BE AVAILABLE IN ANY CASE IN WHICH SUCH SETTLEMENT
WOULD RESULT IN PAYMENTS OF INSTALLMENTS OVER A SHORTER PERIOD THAN ONE
HUNDRED AND TWENTY MONTHS.  ...  "
..END :


















UNITED STATES V. FELIN & CO., 334 U.S. 624 


NO. 17.  ARGUED MAY 7, 1947.  - REARGUED NOVEMBER 18-19, 1947.  -
DECIDED JUNE 14, 1948.  - 107 CT. CL. 155, 67 F.SUPP.  1017, REVERSED. 


WHEN PRICES OF PORK PRODUCTS (BUT NOT LIVE HOGS) WERE FIXED UNDER THE
EMERGENCY PRICE CONTROL ACT, THE GOVERNMENT ORDERED FROM A PACKER A
QUANTITY OF FOUR PARTICULAR PORK PRODUCTS FOR WAR PURPOSES.  THE PACKER
REFUSED DELIVERY AT CEILING PRICES AND THE PRODUCTS WERE SEIZED BY THE
GOVERNMENT.  UNDER A STATUTORY PROCEDURE, AN ADMINISTRATIVE AGENCY
AWARDED COMPENSATION AT CEILING PRICES; THIS WAS REFUSED; AND THE
PACKER WAS PAID HALF THE AMOUNT DUE AT CEILING PRICES ON ACCOUNT.  IN A
SUIT BY THE PACKER FOR "JUST COMPENSATION" UNDER THE FIFTH AMENDMENT,
THE COURT OF CLAIMS FOUND AS A FACT THAT THE REPLACEMENT COST OF THE
SEIZED PRODUCTS AT THE TIME AND PLACE OF THE TAKING WAS SUBSTANTIALLY
IN EXCESS OF THE CEILING PRICES AND AWARDED JUDGMENT FOR THE DIFFERENCE
BETWEEN THE AMOUNT PAID AND WHAT IT FOUND TO BE THE REPLACEMENT VALUE
OF SUCH PRODUCTS.  THE PACKER FAILED TO PROVE THAT IT HAD SUFFERED ANY
ACTUAL LOSS ON THE PARTICULAR PRODUCTS SEIZED.  ON APPEAL TO THIS
COURT, HELD:  JUDGMENT REVERSED WITH DIRECTIONS TO ENTER JUDGMENT FOR
THE UNPAID BALANCE OF THE VALUE OF THE PRODUCTS AT CEILING PRICES, WITH
INTEREST ON THE TOTAL VALUE AT CEILING PRICES FROM THE DATE OF THE
TAKING TO THE DATE OF THE FINAL ADMINISTRATIVE AWARD.  PP. 625-642. 

UNITED STATES V. JOHN J. FELIN & CO., INC. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS AWARDED A PORK PACKER JUDGMENT FOR THE DIFFERENCE
BETWEEN THE AMOUNT PAID (BASED ON O.P.A. CEILING PRICES) FOR CERTAIN
PORK PRODUCTS SEIZED BY THE GOVERNMENT AND THEIR REPLACEMENT VALUE. 
107 CT. CL. 155, 67 F.SUPP.  1017.  THIS COURT GRANTED CERTIORARI.  330
U.S. 814.  REVERSED WITH DIRECTIONS, P. 642. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND
DELIVERED AN OPINION IN WHICH THE CHIEF JUSTICE AND MR. JUSTICE BURTON
CONCURRED. 

THIS IS A CLAIM FOR JUST COMPENSATION, BASED ON THE FIFTH AMENDMENT,
BY A SLAUGHTERER WHOSE MEAT PRODUCTS THE GOVERNMENT REQUISITIONED FOR
WAR PURPOSES.  THE COURT OF CLAIMS AWARDED DAMAGES ABOVE THE MAXIMUM
PRICES FIXED BY THE OFFICE OF PRICE ADMINISTRATION FOR SUCH PRODUCTS
AND MEASURED BY WHAT THAT COURT DEEMED THE REPLACEMENT COST OF THE
REQUISITIONED PROPERTY.  107 CT. CL. 155, 67 F.SUPP.  1017.  THE
IMPLICATIONS OF THIS RULING REACH FAR, AND SO WE BROUGHT THE CASE
HERE.  330 U.S. 814. 

WHILE THE IMMEDIATE FACTS OF THIS CONTROVERSY ARE FEW AND UNDISPUTED,
THEY CAN BE UNDERSTOOD ONLY IN CONNECTION WITH THE RECOGNIZED FACTS IN
THE MEAT INDUSTRY.  OF THESE WE MUST TAKE JUDICIAL NOTICE INASMUCH AS
WE MUST TRANSLATE THE IDIOM OF THE INDUSTRY INTO VERNACULAR ENGLISH. 
ALSO, OF COURSE, WE MUST CONSIDER THE FACTS IN THE CONTEXT OF THE
RATHER INTRICATE SYSTEM OF MEAT PRICE REGULATION BY O.P.A. 

THE RESPONDENT WAS ENGAGED IN THE BUSINESS OF PACKING PORK PRODUCTS
IN PHILADELPHIA.  IT BOUGHT HOGS IN CHICAGO, ST. LOUIS, AND
INDIANAPOLIS AND TRANSPORTED THEM TO PHILADELPHIA WHERE THEY WERE
SLAUGHTERED AND CONVERTED INTO VARIOUS PORK CUTS AND PRODUCTS.  IT SOLD
THESE PRODUCTS TO RETAIL DEALERS IN PHILADELPHIA, AND IT HAD ALSO
SUPPLIED PORK PRODUCTS TO GOVERNMENT AGENCIES. 

ON JANUARY 30, 1942, THE PRESIDENT APPROVED THE EMERGENCY PRICE
CONTROL ACT.  56 STAT. 23, 50 U.S.C. APP. (SUPP. V, 1946) SEC. 901. 
ACCORDINGLY, THE PRICE ADMINISTRATOR, BY A SERIES OF REGULATIONS,
ESTABLISHED MAXIMUM PRICES FOR DRESSED HOGS AND WHOLESALE PORK CUTS. 
REVISED MAXIMUM PRICE REGULATION NO. 148, ISSUED ON OCTOBER 22, 1942,
GOVERNED THE PORK CUTS HERE INVOLVED.  7 FED. REG. 8609, 8948, 9005; 8
FED. REG. 544. 

TO MEET THE FOOD NEEDS ENTAILED BY THE WAR, THE PRESIDENT UNDER THE
AUTHORITY OF THE SECOND WAR POWERS ACT, 56 STAT. 176, 50 U.S.C. (SUPP.
V, 1946) SEC. 633, CREATED THE FOOD DISTRIBUTION ADMINISTRATION, WITH
THE SECRETARY OF AGRICULTURE AS ITS HEAD.  E.O. 9280, 7 FED. REG.
10179.  THIS ADMINISTRATION WAS GIVEN AUTHORITY TO ASSIGN FOOD
PRIORITIES, TO "ALLOCATE" FOOD TO GOVERNMENTAL AGENCIES AND FOR PRIVATE
ACCOUNT, AND TO ASSIST IN CARRYING OUT THE PROGRAM OF THE LEND-LEASE
ACT OF MARCH 11, 1941, 55 STAT. 31.  TO CARRY OUT THE TASK THUS
DELEGATED BY THE PRESIDENT, THE FOOD DISTRIBUTION ADMINISTRATION ISSUED
TO EACH PACKER OPERATING UNDER FEDERAL INSPECTION A PRIORITY ORDER
CALLING FOR DELIVERY OF A PROPORTIONATE PART OF THE TOTAL QUANTITY
NEEDED AT THE PARTICULAR TIME.  FN1  A PACKER'S QUOTA WAS BASED ON THE
RATIO OF MEAT PRODUCED IN HIS PLANT TO THE TOTAL PRODUCTION IN ALL
FEDERALLY INSPECTED PLANTS. 

IN CONFORMITY WITH THIS SYSTEM, THE RESPONDENT, ON FEBRUARY 2, 1943,
WAS REQUESTED TO DELIVER 225,000 POUNDS OF LARD AND PORK PRODUCTS TO
THE FEDERAL SURPLUS COMMODITY CORPORATION FOR DELIVERY UNDER THE LEND
LEASE PROGRAM.  THE RESPONDENT WAS ADVISED THAT THIS ORDER WAS TO BE
FILLED IN PREFERENCE TO ANY OTHER ORDER OR CONTRACT OF LOWER PRIORITY,
AND AT THE APPLICABLE O.P.A. CEILING PRICES.  INSISTING THAT IT COULD
NO LONGER AFFORD TO SELL TO THE GOVERNMENT AT CEILING PRICES,
RESPONDENT REFUSED TO MAKE DELIVERY. 

ON MARCH 1, 1943, THE FOOD DISTRIBUTION ADMINISTRATION, EXERCISING
POWERS NOT QUESTIONED, ISSUED AN ORDER REQUISITIONING THE LARD AND PORK
PRODUCTS IN CONTROVERSY.  FN2  ON MARCH 3, 1943, THE PROPERTY WAS DULY
SEIZED IN RESPONDENT'S PHILADELPHIA PACKING HOUSE.  ON MARCH 24, 1943,
RESPONDENT FILED ITS CLAIM WITH THE ADMINISTRATION FOR "JUST
COMPENSATION" FOR TAKING THIS PROPERTY.  ITS TOTAL CLAIM WAS $55,525,
OF WHICH $16,250 WAS FOR LARD AND $39,275 FOR PORK CUTS.  ON MAY 7,
1943, THE ADMINISTRATION, BY WAY OF PRELIMINARY DETERMINATION OF THE
JUST COMPENSATION FOR THE REQUISITIONED PROPERTY, FIXED THE VALUE OF
THE LARD AT $15,543.78 AND THE PORK CUTS AT $25,112.50.  THESE AMOUNTS
WERE BASED ON THE O.P.A. CEILING PRICES APPLICABLE TO THESE PRODUCTS. 
ON MAY 22, 1943, THE PRELIMINIARY AWARD WAS MADE FINAL.  RESPONDENT
ACCEPTED IN FULL PAYMENT THE AWARD AS TO THE LARD; IT REFUSED TO ACCEPT
THE DETERMINATION AS TO THE PORK CUTS AND, IN ACCORDANCE WITH THE
STATUTORY PROCEDURE IN THE CASE OF REJECTION OF SUCH AN AWARD, WAS PAID
HALF OF IT.  ON JUNE 24, 1943, RESPONDENT INSTITUTED THIS ACTION IN THE
COURT OF CLAIMS TO RECOVER THE ADDITIONAL AMOUNT WHICH WHEN ADDED TO
THE $12,556.25, THE HALF OF THE GOVERNMENT'S VALUATION FOR THOSE CUTS,
WOULD CONSTITUTE "JUST COMPENSATION" FOR WHAT THE GOVERNMENT HAD
TAKEN. 

THE COURT OF CLAIMS REFERRED THE PROCEEDING TO A COMMISSIONER, WHO
TOOK EVIDENCE AND REPORTED TO THE COURT.  UPON THE BASIS OF HIS REPORT
AND THE UNDERLYING EVIDENCE, THE COURT OF CLAIMS FOUND AS A FACT THAT
THE REPLACEMENT COST OF THE REQUISITIONED PORK CUTS AT THE TIME AND
PLACE OF THE TAKING WAS $30,293, AND CONCLUDED, AS A MATTER OF LAW,
THAT SUCH REPLACEMENT COST AND NOT THE MAXIMUM CEILING PRICE WAS THE
PROPER MEASURE OF DAMAGES FOR THE TAKING.  WE HEARD ARGUMENT AT THE
LAST TERM, AND AFTER DUE CONSIDERATION DEEMED IT APPROPRIATE TO ORDER
REARGUMENT AT THIS TERM.  FN3 

AT THE OUTSET IT IS IMPORTANT TO MAKE CLEAR WHAT IT IS WE ARE CALLED
UPON TO DECIDE.  THE CONVENTIONAL CRITERION FOR DETERMINING WHAT IS
"JUST COMPENSATION" FOR PRIVATE PROPERTY TAKEN FOR PUBLIC USE IS WHAT
IT WOULD BRING IN THE FREE, OPEN MARKET.  E.G., OLSON V. UNITED STATES,
292 U.S. 246, 255; BROOKS-SCANLON CORP. V. UNITED STATES, 265 U.S. 106,
123; L. VOGELSTEIN & CO. V. UNITED STATES, 262 U.S. 337, 340.  BUT
THERE MUST BE A MARKET TO MAKE THE CRITERION AVAILABLE.  HERE THERE WAS
A MARKET IN WHICH THE RESPONDENT COULD HAVE SOLD THE PORK CUTS, BUT IT
WAS NOT A FREE AND OPEN MARKET; IT WAS CONTROLLED IN ITS VITAL FEATURE,
SELLING PRICE, BY THE O.P.A.  IT IS THIS FACT THAT CREATES THE PROBLEM
OF THE CASE, ASSUMING THAT THE CASE IS NOT DOGMATICALLY DISPOSED OF BY
HOLDING THAT INASMUCH AS THE MAXIMUM PRICE IS THE ONLY PRICE WHICH
RESPONDENT COULD LEGALLY HAVE GOT FOR ITS GOODS IT IS JUST
COMPENSATION.  WE ARE NOT PASSING ON THE ABSTRACT QUESTION WHETHER A
LAWFULLY ESTABLISHED MAXIMUM PRICE IS THE PROPER MEASURE OF "JUST
COMPENSATION" WHENEVER PROPERTY IS TAKEN FOR PUBLIC USE.  WE ARE
ADJUDICATING ONLY THE PRECISE ISSUES THAT EMERGE FROM THIS CASE. 

THE SECOND WAR POWERS ACT, 1942, UNDER WHICH RESPONDENT'S PROPERTY
WAS AUTHORIZED TO BE TAKEN, RESTRICTED COMPENSATION FOR THE TAKING TO
THAT WHICH THE FIFTH AMENDMENT ENJOINS.  56 STAT. 176, 181.  IN
ENFORCING THIS CONSTITUTIONAL REQUIREMENT "THE QUESTION IS WHAT HAS THE
OWNER LOST, NOT WHAT HAS THE TAKER GAINED."  BOSTON CHAMBER OF COMMERCE
V. BOSTON, 217 U.S. 189, 195; MCGOVERN V. NEW YORK, 229 U.S. 363. 
RESPONDENT'S SOLE CLAIM IS FOR THE PECUNIARY EQUIVALENT OF THE PROPERTY
TAKEN.  THIS IS NOT A SITUATION WHERE CONSEQUENTIAL DAMAGES, IN ANY
APPROPRIATE SENSE OF THE TERM, ARE URGED AS A NECESSARY PART OF JUST
COMPENSATION.  RESPONDENT DOES NOT CLAIM SUCH DAMAGES ON THE THEORY
THAT, IN ORDER TO PROTECT ITS GOOD WILL, IT HAD TO SUPPLY ITS REGULAR
CUSTOMERS AND THAT THIS COMPELLED REPLACEMENT OF THE REQUISITIONED PORK
PRODUCTS BY THE PURCHASE, SLAUGHTER, AND PROCESSING OF LIVE HOGS.  FN4
CF. UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373, 382; UNITED
STATES V. PETTY MOTOR CO., 327 U.S. 372, 377-78; UNITED STATES EX REL.
T.V.A. V. POWELSON, 319 U.S. 266, 281-82.  RESPONDENT CLAIMS THAT
REPLACEMENT COST IS THE PROPER MEASURE OF THE VALUE OF THE PROPERTY
WHEN REQUISITIONED.  THIS ACTION WAS BROUGHT TO RECOVER DAMAGES WHICH
THE RESPONDENT WOULD SUFFER, SO IT MAINTAINS, IF IT ACCEPTED THE
GOVERNMENT'S OFFER OF THE APPLICABLE CEILING PRICES IN SATISFACTION OF
"JUST COMPENSATION."  THE BURDEN THEREFORE RESTS ON THE RESPONDENT TO
PROVE THE DAMAGES IT WOULD SUFFER BY NOT RECEIVING MORE THAN THE
CEILING PRICES.  MARION & RYE VALLEY R. CO. V. UNITED STATES, 270 U.S.
280, 285. 

THE COURT OF CLAIMS FOUND THAT THE PRINCIPAL ITEM IN THE COST OF
PROCESSING RESPONDENT'S PRODUCTS WAS WHAT IT HAD TO PAY FOR LIVE HOGS;
THAT, INASMUCH AS LIVE HOGS WERE NOT THEN COVERED BY PRICE REGULATION,
THE CHICAGO MARKET QUOTATIONS GOVERNED PRICE IN THE PACKING INDUSTRY;
THAT THE CHICAGO AVERAGE LIVE HOG PRICE WAS $15.59 DURING MARCH 1943;
FN5  AND THAT, ON THE BASIS OF THIS PRICE, THE REPLACEMENT COST FOR THE
REQUISITIONED PROPERTY WAS $30,293.  WE ARE OF OPINION THAT IN REACHING
THIS CONCLUSION THE COURT BELOW FAILED TO TAKE INTO ACCOUNT DECISIVE
FACTORS FOR THE PROPER DISPOSITION OF THE ACTION BROUGHT BY THE
RESPONDENT. 

WE ARE DEALING WITH A CLAIM FOR DAMAGES ARISING OUT OF A TRANSACTION
PERTAINING TO A PARTICULAR INDUSTRY, AND THE TRANSACTION CANNOT BE TORN
FROM THE CONTEXT OF THAT INDUSTRY.  IT IS PRACTICALLY A POSTULATE OF
THE SLAUGHTERING INDUSTRY THAT REPLACEMENT COST DOES NOT AFFORD A
RELEVANT BASIS FOR DETERMINING THE TRUE VALUE OF THE INDUSTRY'S
PRODUCTS.  "MANUFACTURING OPERATIONS IN THE MEAT PACKING INDUSTRY DO
NOT CONSIST OF ASSEMBLING RAW MATERIALS FOR THE PURPOSE OF OBTAINING
ONE FINISHED PRODUCT, BUT RATHER OF SEPARATING OR BREAKING DOWN RAW
MATERIALS (CATTLE, ETC.) INTO MANY PARTS, ONE OF WHICH (DRESSED
CARCASS) IS THE MAJOR PRODUCT, AND THE OTHER PARTS OF WHICH ARE FURTHER
PROCESSED INTO NUMEROUS BYPRODUCTS."  KINGAN & CO. V. BOWLES, 144 F.2D
253, 254.  IN CONSEQUENCE, COST IN THE INDUSTRY GENERALLY IS LIKE A
FAGOT THAT CANNOT BE BROKEN UP INTO SIMPLE, ISOLATED PIECES.  SEE
GREER, PACKINGHOUSE ACCOUNTING (PREPARED BY THE COMMITTEE ON ACCOUNTING
OF THE INSTITUTE OF AMERICAN MEAT PACKERS), PASSIM.  "THE ACCOUNTING
PROCEDURE IN THE HOG BUSINESS IS EVEN MORE COMPLICATED THAN THAT OF THE
CATTLE, CALF, OR SHEEP BUSINESS, BECAUSE THE OPERATIONS INVOLVE A
GREATER BREAKING UP OF THE DRESSED CARCASS AND MORE NUMEROUS PROCESSES
EXTENDING OVER CONSIDERABLE PERIODS OF TIME."  ID. AT 33-34.  THE
PROBLEM IS ONE OF "JOINT COST" IN A BUSINESS WHICH "PRODUCES NO SINGLE
MAJOR PRODUCT," ID. AT 213, WITH THE RESULT THAT NO ACCOUNTANT HAS THUS
FAR "BEEN ABLE TO DEVISE A METHOD YIELDING BY-PRODUCT OR JOINT-COST
FIGURES WHICH DOES NOT EMBODY A DOMINANCE OF ARBITRARINESS AND
GUESSWORK."  HAMILTON, COST AS A STANDARD FOR PRICE, 4 LAW AND
CONTEMP.  PROB.  321, 328; CF. GREENBAUM, THE BASIS OF PROPERTY SHALL
BE THE COST OF SUCH PROPERTY: HOW IS COST DEFINED?, 3 TAX L. REV. 351,
356-59. 

IF, AS SUGGESTED IN ARGUMENT, A HOG WERE NOTHING BUT AN ARTICULATED
PORK CHOP, AND THE PROCESSING OF EDIBLE AND INEDIBLE BY-PRODUCTS WERE
NOT CHARACTERISTIC OF THE INDUSTRY, THE PRICE OF A LIVE HOG MIGHT WELL
REPRESENT THE COLLECTIVE COST OF THE DERIVATIVE PORK CUTS.  THE PORK
CHOP, HOWEVER, IS BUT ONE OF THE MANY EDIBLE HOG PRODUCTS.  ACCORDING
TO AN ESTIMATE ABOUT THE TIME OF THE REQUISITIONING OF THESE PORK CUTS,
THERE WERE MORE THAN 200 PORK ITEMS (EXCLUSIVE OF SAUSAGE PRODUCTS) IN
THE MARKET.  SEE SUPPLEMENTARY STATEMENT OF CONSIDERATIONS FOR REVISED
REGULATION NO. 148, PIKE AND FISCHER, 3 OPA FOOD DESK BOOK 46,151. 
"MOST PORK PRODUCTS," THE ADMINISTRATOR FOUND, "ARE CONSUMED IN A CURED
OR PROCESSED STATE.  FRESH PORK PRODUCTS, SUCH AS PORK CHOPS AND FRESH
HAM, REPRESENT NOT OVER 20 PER CENT OF THE VAST QUANTITY OF PORK WHICH
MOVES BY RAIL.  THE REMAINING 80 PER CENT REACHES THE CONSUMER IN A
WIDE VARIETY OF PROCESSED FORMS, INCLUDING DRIED, DRY CURED, SWEET
PICKLED, SMOKED, COOKED, BAKED, AND CANNED."  ID. AT 46,141.  IT
DESERVES NOTING THAT THE REQUISITIONED PRODUCTS IN CONTROVERSY INCLUDED
CURED REGULAR HAMS, CURED CLEAR BELLIES, CURED PICNICS, AND SALTED
FATBACKS. 

THE PETITIONER WAS ALSO ENGAGED IN BY-PRODUCT PROCESSING N6, FOR THE
GOVERNMENT TOOK FROM HIM 100,000 POUNDS OF REFINED PURE LARD.  FOR THE
VALUE OF THE LARD THE RESPONDENT ACCEPTED THE ADMINISTRATIVE AWARD. 
FN7  ADMITTEDLY, PART OF THE COST OF THE LIVE HOG MUST BE CHARGED TO BY
PRODUCTS.  HOWEVER, ANY METHOD OF APPORTIONING THE TOTAL COST TO THE BY
PRODUCTS IS HIGHLY SPECULATIVE.  FN8 

SINCE SO MUCH SPECULATIVE APPROXIMATION AND GUESSWORK ENTERED INTO
THE DETERMINATION OF COST, SELLING PRICE, AND PROFIT, THE INDUSTRY,
NATURALLY ENOUGH, WAS IN ALMOST CONTINUOUS CONTROVERSY WITH THE PRICE
ADMINISTRATOR ABOUT THEM.  THE RESPONDENT WAS PARTY TO THESE
CONTROVERSIES.  ON JULY 17, 1942, IT FILED A PROTEST AGAINST MAXIMUM
PRICE REGULATION NO. 148 WHICH WAS CONSOLIDATED WITH THE PROTEST OF 115
OTHER PORK SLAUGHTERERS AGAINST THIS REGULATION.  ON THE BASIS OF
CALCULATIONS AS TO THE CUT-OUT VALUE OR REPLACEMENT COST OF VARIOUS
PORK CUTS, THE SLAUGHTERERS CONTENDED THAT THE REGULATION DID NOT ALLOW
THEM SUFFICIENT OPERATING MARGIN OVER THE COST OF LIVE HOGS.  IN
REJECTING THE PROTEST, ON APRIL 23, 1943, THE ADMINISTRATOR MADE THIS
RULING:  "THE INTERDEPENDENCE OF ALL PHASES OF THE OPERATIONS OF
PACKING ESTABLISHMENTS MAKES PRECISE EVALUATION OF THE RELATIONSHIP
BETWEEN PRICES ON DRESSED AND PROCESSED MEATS AND LIVE HOG PRICES
IMPOSSIBLE EXCEPT IN TERMS OF THE OVER-ALL FINANCIAL POSITION OF THE
INDUSTRY."  IN THE MATTER OF RAPIDES PACKING CO., PIKE AND FISCHER, 1
OPA OPINIONS AND DECISIONS 243.  THE RESPONDENT, ON MARCH 8, 1943, HAD
ALSO PROTESTED, AGAIN ON THE BASIS OF THE COST OF LIVE HOGS, AGAINST
THE REVISION OF THE REGULATION.  THIS PROTEST WAS CONSOLIDATED WITH
THOSE OF 15 OTHER PORK SLAUGHTERERS AND, SUBSTANTIALLY ON THE GROUND
TAKEN IN THE RAPIDES PACKING CO. CASE, THIS SECOND PROTEST WAS LIKEWISE
REJECTED BY THE ADMINISTRATOR.  IN THE MATTER OF GREENWOOD PACKING
PLANT, PIKE AND FISCHER, 1 OPA OPINIONS AND DECISIONS 296, 299. 

REVIEW BY THE EMERGENCY COURT OF APPEALS WAS NOT SOUGHT,  FN9
ALTHOUGH THE FIRST DENIAL OF RESPONDENT'S CLAIM FOR THE REPLACEMENT
COST OF PORK CUTS, BASED ON LIVE HOG PRICES, CAME SHORTLY AFTER THE
GOVERNMENT'S REQUISITIONING OF THE PRODUCTS AS TO WHICH HE NOW MAKES
THE SAME CONTENTION.  IT IS NOTEWORTHY THAT THE PORK PRICE MARGINS WERE
ALMOST THE ONLY MEAT PRICE MARGINS WHICH WERE NOT CHALLENGED BEFORE THE
EMERGENCY COURT OF APPEALS IN WHAT HAS BEEN CALLED "THE BATTLE OF THE
MEAT REGULATIONS."  SEE HYMAN AND NATHANSON, JUDICIAL REVIEW OF PRICE
CONTROL:  THE BATTLE OF THE MEAT REGULATIONS, 42 ILL. L. REV. 584. 

THE CONSIDERATIONS WHICH UNDERLAY THE ADMINISTRATOR'S MEAT PRICE
DETERMINATIONS ARE MOST PERTINENT TO THE SOLUTION OF OUR IMMEDIATE
PROBLEM.  THE RESULT OF HIS ANALYSIS WAS THAT THE PROFIT-AND-LOSS DATA
ON A SLAUGHTERER'S ENTIRE OPERATIONS WERE THE ONLY DEPENDABLE FIGURES
FROM WHICH THE FAIRNESS OF MEAT PRICES COULD BE DEDUCED.  THE
ADMINISTRATOR POINTED OUT THAT THE INDUSTRY, ON THE BASIS OF ITS
ACCOUNTING FIGURES, HAD HISTORICALLY LOST MONEY ON ITS MEAT SALES. 
FN10  SINCE, HOWEVER, BY TAKING THE BY-PRODUCT SALES INTO FULL ACCOUNT
ITS OPERATIONS AS A WHOLE WERE HIGHLY PROFITABLE, THESE MEAT SALE
LOSSES WERE "MORE IN THE NATURE OF BOOKKEEPING LOSSES WHICH FAILED TO
TAKE FULLY INTO ACCOUNT THE INTEGRATED NATURE OF THE INDUSTRY."  THESE
VIEWS WERE APPROVINGLY QUOTED BY THE EMERGENCY COURT OF APPEALS IN
ARMOUR & CO. V. BOWLES, 148 F.2D 529, 535. 

IN BOTH OF THE CONSOLIDATED PROCEEDINGS TO WHICH THE RESPONDENT WAS A
PARTY, THE ADMINISTRATOR EXPLICITLY REQUESTED TO BE FURNISHED WITH THE
INDUSTRY'S PROFIT-AND-LOSS DATA.  IN THE EARLIER PROCEEDING, NO PROOF
OF LOSS WAS FILED BY ANY OF THE PROTESTANTS.  IN THE MATTER OF RAPIDES
PACKING CO., SUPRA.  IN THE SECOND PROCEEDING THE ADMINISTRATOR MADE
THIS FINDING: 

"THE THREE PROTESTANTS WHO SUBMITTED FURTHER EVIDENCE DID NOT EVEN
THUS SUSTAIN THEIR CLAIMS OF INDIVIDUAL HARDSHIP.  ONE OF THEM SHOWED A
NET PROFIT OF $60,492.44 FOR THE FIVE MONTHS PERIOD ENDING MARCH 27,
1942; ANOTHER A NET PROFIT OF $6,838.00 FOR THE THREE MONTHS PERIOD
ENDING APRIL 1, 1943, AND THE THIRD FAILED TO SUBMIT A PROFIT AND LOSS
STATEMENT AND BALANCE SHEET ALTHOUGH SPECIFICALLY REQUESTED TO DO SO." 
IN THE MATTER OF GREENWOOD PACKING PLANT, SUPRA, AT 297. 

NOT MERELY DOES THE INDUSTRY GENERALLY SEEM TO HAVE PROSPERED UNDER
PRICE CONTROL,  FN11  BUT SO DID THE RESPONDENT  FN12  DESPITE THE FACT
THAT THROUGHOUT THE PERIOD IN CONTROVERSY IT CONTINUED TO BUY LIVE HOGS
AT PREVAILING PRICES AND TO SELL PORK PRODUCTS DERIVED FROM THEM AT THE
AUTHORIZED CEILING PRICES, EVEN WHEN THIS MEANT SELLING ITS PORK
PRODUCTS BELOW THE PRICE THAT THE COURT OF CLAIMS FOUND TO BE THEIR
REPLACEMENT COST VALUE.  FN13 

MOST PERTINENT, THEREFORE, ARE THE PRONOUNCEMENTS OF THE PACKING
INDUSTRY MADE BEFORE THESE MATTERS BECAME EMBROILED IN PRICE-FIXING
LITIGATION.  "THE COST OF A DRESSED HOG CARCASS, OR OF A LOT OF DRESSED
HOG CARCASSES, MAY BE DETERMINED QUITE SATISFACTORILY; BUT WHEN A
CARCASS IS CUT UP INTO ITS VARIOUS MERCHANTABLE PARTS, ALL RECORD OF
COST IS LOST, AS IT IS IMPOSSIBLE TO DETERMINE THE COST OF ANY OF THESE
CUTS."  GREER, PACKINGHOUSE ACCOUNTING (PREPARED BY THE COMMITTEE ON
ACCOUNTING OF THE INSTITUTE OF AMERICAN MEAT PACKERS), P. 246, AND ALSO
PP. 43, 58, 61-62.  SINCE THE "RESULTS FOR THE HOG BUSINESS AS A WHOLE
CAN BE FOUND ONLY BY ADDING THE PROFITS OR LOSSES FOR ALL MERCHANDISING
DEPARTMENTS," ID. AT 218, THE ONLY ACCURATE FORMULA FOR COSTS IN HOG
SLAUGHTERING IS A PROFIT-AND-LOSS STATEMENT FOR THE ENTIRE OPERATIONS. 
ID. AT 43-44. 

IT IS AS OLD AS THE COMMON LAW THAT AN ALLEGATION PURPORTING TO BE
ONE OF FACT BUT CONTRADICTED BY COMMON KNOWLEDGE IS NOT CONFESSED BY A
DEMURRER.  FN14  OF COURSE, FINDINGS OF FACT ARE BINDING ON THIS COURT,
BUT IF THIS COURT HAD TO TREAT AS THE STARTING POINT FOR THE
DETERMINATION OF CONSTITUTIONAL ISSUES A SPURIOUS FINDING OF "FACT"
CONTRADICTED BY AN ADJUDICATED FINDING BETWEEN THE VERY PARTIES TO THE
INSTANT CONTROVERSY, CONSTITUTIONAL ADJUDICATION WOULD BECOME A VERBAL
GAME. 

THERE ARE FACTS AND FACTS, EVEN IN COURT OF CLAIMS' LITIGATION.  IT
IS THE FUNCTION OF THE COURT OF CLAIMS TO MAKE FINDINGS.  BUT WHEN A
JUDGMENT BASED ON SUCH FINDINGS IS HERE BROUGHT IN QUESTION IT IS THE
FUNCTION OF THIS COURT TO ASCERTAIN THE MEANING OF THE FINDINGS IN
ORDER TO DETERMINE THEIR LEGAL SIGNIFICANCE.  THE JUDGMENT OF THE COURT
BELOW THAT "REPLACEMENT COST" IS THE PROPER MEASURE OF JUST
COMPENSATION AND THE MODE BY WHICH IT REACHED THE AMOUNT OF THAT COST
ARE INESCAPABLY ENMESHED IN CONSIDERATIONS THAT ARE CLEARLY FAMILIAR
ISSUES OF LAW AND PARTICULARLY OF CONSTITUTIONAL LAW.  WHERE THE
CONCLUSION IS A "COMPOSITE OF FACT AND LAW," CEDAR RAPIDS GAS LIGHT CO.
V. CEDAR RAPIDS, 223 U.S. 655, 668, THIS COURT MAY CERTAINLY HOLD THAT
AS A MATTER OF LAW THE FINDINGS ARE ERRONEOUS.  SEE, E.G., WASHINGTON
EX REL. OREGON R. & N. CO. V. FAIRCHILD, 224 U.S. 510, 528.  EVEN WHEN
THIS COURT REVIEWS STATE COURT JUDGMENTS INVOLVING CONSTITUTIONAL
ISSUES IT "MUST REVIEW INDEPENDENTLY BOTH THE LEGAL ISSUES AND THOSE
FACTUAL MATTERS WITH WHICH THEY ARE COMMINGLED."  SEE OYAMA V.
CALIFORNIA, 332 U.S. 633, 636(AND THE AUTHORITIES THEREIN CITED). 
SIMILARLY, FINDINGS CONCURRED IN BY TWO COURTS DO NOT CONTROL THE
DECISION HERE WHERE "FACTS AND THEIR CONSTITUTIONAL SIGNIFICANCE ARE
TOO CLOSELY CONNECTED" AND "THE STANDARDS AND THE ULTIMATE CONCLUSION
INVOLVE QUESTIONS OF LAW INSEPARABLE FROM THE PARTICULAR FACTS TO WHICH
THEY ARE APPLIED."  UNITED STATES V. APPALACHIAN ELECTRIC POWER CO.,
311 U.S. 377, 404.  EVEN WHERE THE PARTIES TO THE LITIGATION HAVE
STIPULATED AS TO THE "FACTS," THIS COURT WILL DISREGARD THE
STIPULATION, ACCEPTED AND APPLIED BY THE COURTS BELOW, IF THE
STIPULATION OBVIOUSLY FORECLOSES REAL QUESTIONS OF LAW.  SEE, E.G.,
SWIFT & CO. V. HOCKING VALLEY R. CO., 243 U.S. 281. 

THE PRIOR PROCEEDINGS BETWEEN THE SAME PARTIES, AS TO WHICH WE WOULD
BE BLIND NOT TO TAKE JUDICIAL NOTICE, AS WELL AS THE UNQUESTIONED FACTS
PERTAINING TO THE MEAT INDUSTRY ARE RELEVANT TO INTERPRET THE FINDINGS
OF THE COURT OF CLAIMS.  WE HAVE CONCLUDED THAT HERE "REPLACEMENT COST"
IS A SPURIOUS, I.E. NON-LEGAL, BASIS FOR DETERMINING JUST
COMPENSATION.  IT IS AS THOUGH THE COURT OF CLAIMS HAD BASED ITS
OPINION ON A BALANCE SHEET AND WE HAD TO INTERPRET THE BALANCE SHEET
INTO ACTUALITIES.  AND SO WE HOLD THAT, AS A MATTER OF LAW, THE COURT
BELOW ERRED IN UTILIZING REPLACEMENT COST AS THE BASIS FOR DETERMINING
WHAT CONSTITUTED JUST COMPENSATION. 

WHEN DUE REGARD IS GIVEN TO THE FINDINGS OF THE COURT OF CLAIMS, THEY
FAIL TO ESTABLISH THAT THE COMPENSATION PROFFERED BY THE GOVERNMENT FOR
THE REQUISITIONED PORK CUTS, BASED ON THE MAXIMUM CEILING PRICES, FALLS
SHORT OF "JUST COMPENSATION."  WE ARE THEREFORE NOT CALLED UPON TO
CONSIDER WHETHER AS A MATTER OF CONSTITUTIONAL LAW PRICES FIXED BY THE
GOVERNMENT FOR THE SALE OF COMMODITIES ARE THE MEASURE OF "JUST
COMPENSATION" FOR COMMODITIES SEIZED BY THE GOVERNMENT.  AS THE
CONFLICT OF OPINION HERE INDICATES, THAT IS A DEBATABLE ISSUE WHICH,
SINCE WE CAN, WE MUST AVOID ADJUDICATING.  SEE SPECTOR MOTOR CO. V.
MCLAUGHLIN, 323 U.S. 101, 105. 

THE BURDEN OF PROVING ITS CASE WAS UPON THE RESPONDENT.  THE NATURE
OF THIS BURDEN WAS TO PROVE, IN LIGHT OF THE GOVERNING FACTS OF THE
INDUSTRY, THAT THE ADMINISTRATIVE AWARD FOR THE TAKING OF RESPONDENT'S
PROPERTY WAS LESS THAN JUST COMPENSATION, BASED AS IT WAS ON PRICES
WHICH THE ADMINISTRATOR HAD ESTABLISHED FOR THOSE PRODUCTS AND WHICH
HAD BEEN LEFT UNDISTURBED BY THE PROCESS DEVISED BY CONGRESS FOR
ASSURING THE FAIRNESS OF THESE PRICES.  BY EVIDENCE MERELY OF
BOOKKEEPING LOSSES, RESPONDENT DID NOT CARRY ITS BURDEN OF PROVING
ACTUAL DAMAGE.  JUST COMPENSATION IS A PRACTICAL CONCEPTION, A MATTER
OF FACT AND NOT OF FICTION.  RESPONDENT INTRODUCED NO EVIDENCE, AND THE
COURT OF CLAIMS MADE NO FINDINGS, TO ESTABLISH A LOSS BASED ON ITS
TOTAL OPERATIONS DURING THE PERIOD RELEVANT TO THE SLAUGHTERING OF THE
HOGS FROM WHICH THE REQUISITIONED PRODUCTS WERE PROCESSED.  FN15  ON
THE BASIS OF SUCH FIGURES IT WOULD BE NECESSARY TO DETERMINE BY
REASONABLE ALLOCATIONS THE PORTION OF THE LOSS PROPERLY ATTRIBUTABLE TO
THE GOODS SEIZED BY THE GOVERNMENT.  IN THE PROCEEDINGS BELOW THE
RESPONDENT NEITHER ALLEGED SUCH A LOSS NOT SUBMITTED PROOF IN SUPPORT
OF IT.  SINCE IT HAS NOT MAINTAINED ITS BURDEN OF PROVING THAT THE
CEILING PRICE AWARD ENTAILS DAMAGES, THE JUDGMENT OF THE COURT OF
CLAIMS CANNOT STAND. 

THE JUDGMENT IS REVERSED WITH DIRECTIONS TO THE COURT OF CLAIMS TO
ENTER A JUDGMENT FOR THE RESPONDENT IN AN AMOUNT NOT EXCEEDING
$12,556.25, WITH INTEREST ON THE AMOUNT OF $25,112.50 FROM MARCH 3,
1943, THE DATE OF THE REQUISITION, TO MAY 22, 1943, THE DATE OF THE
FINAL AWARD MADE BY THE DIRECTOR OF THE FOOD DISTRIBUTION
ADMINISTRATION. 

FN1  IN 1943 THERE WERE 308 HOG SLAUGHTERERS WHOSE ESTABLISHMENTS
OPERATED UNDER FEDERAL INSPECTION.  LIVESTOCK, MEATS, AND WOOL MARKET
STATISTICS AND RELATED DATA 1945, COMPILED BY THE LIVESTOCK BRANCH,
PRODUCTION AND MARKETING ADMINISTRATION, UNITED STATES DEPARTMENT OF
AGRICULTURE, P. 31.  IN 1942 THERE HAD BEEN ONLY 218 HOG SLAUGHTERING
ESTABLISHMENTS UNDER FEDERAL INSPECTION, AND IN 1944 THERE WERE 322. 
IBID. 

FN2  THE REQUISITIONED PROPERTY CONSISTED OF THE FOLLOWING: 

40,000 POUNDS CURED REGULAR HAMS, 14 TO 18 LB. RANGE 

40,000 POUNDS CURED CLEAR BELLIES, 10 TO 14 LB. RANGE 

15,000 POUNDS CURED PICNICS, 6 TO 10 LB. RANGE 

30,000 POUNDS SALTED FATBACKS, 8 TO 12 LB. RANGE 

100,000 POUNDS REFINED PURE LARD, 1 LB. PRINTS (30 LBS. TO CARTON) 

FN3  AFTER THE CASE WAS TAKEN UNDER ADVISEMENT, FOLLOWING REARGUMENT,
A MATTER WAS BROUGHT TO OUR ATTENTION WHICH CALLS FOR CONSIDERATION,
HOWEVER SUMMARY.  WE WERE ADVISED THAT ON MARCH 23, 1943, THE
RESPONDENT FILED WITH THE O.P.A. AN "APPLICATION FOR ADJUSTMENT OF
MAXIMUM PRICES FOR COMMODITIES OR SERVICES UNDER GOVERNMENT CONTRACTS
OR SUBCONTRACTS," PURSUANT TO PROCEDURAL REGULATION NO. 6, 7 FED. REG.
5087, AND SUPPLEMENTARY ORDER NO. 9, 7 FED. REG. 5444.  (SEE 7 FED.
REG. 5088 FOR THE FORM OF THE APPLICATION.)  THE PURPOSE OF THESE
REGULATIONS WAS TO AFFORD OPPORTUNITY FOR RELIEF TO SELLERS WHO HAD
MADE, OR PROPOSED TO MAKE, "CONTRACTS OR SUBCONTRACTS" WITH THE
GOVERNMENT.  THIS APPLICATION HAD LAIN DORMANT FROM THE DATE OF ITS
FILING UNTIL DECEMBER 13, 1947, WHEN WE WERE ADVISED BY COUNSEL FOR THE
GOVERNMENT THAT IT WAS NOW IN THE FILES OF THE RECONSTRUCTION FINANCE
CORPORATION, WHICH IS THIRD IN THE CHAIN OF TITLE FROM THE O.P.A.,
THROUGH THE OFFICE OF TEMPORARY CONTROLS, CHARGED WITH THE
ADMINISTRATION OF THESE TWO REGULATIONS.  ON DECEMBER 15, 1947, COUNSEL
FOR THE RESPONDENT ADVISED THE R.F.C. THAT IT WITHDREW THE APPLICATION
INSOFAR AS IT PERTAINED TO THE REQUISITIONED COMMODITIES IN CONTROVERSY
HERE. 

WHILE THE GOVERNMENT DOES NOT SUGGEST THAT THE DORMANCY OF THIS
APPLICATION RENDERS PRESENT PROCEEDINGS, IF NOT MOOT, PREMATURE, SUCH
APPARENTLY IS THE INTIMATION.  IF THE REGULATIONS IN FACT AUTHORIZED
ONE WHO IS NOT A "CONTRACTOR OR SUBCONTRACTOR" IN THE ORDINARY MEANING
OF THOSE TERMS TO OBTAIN SPECIAL ADMINISTRATIVE RELIEF APART FROM THE
STATUTORY SCHEME RELATING TO REQUISITIONED PROPERTY, TECHNICAL ISSUES
WOULD HAVE TO BE FACED WHICH WE NEED NOT PARTICULARIZE.  COUNSEL FOR
THE GOVERNMENT ADVISE US THAT A COUNSEL FOR THE R.F.C. HAS NOW
INTERPRETED THE REGULATIONS NOT ONLY (1) AS APPLICABLE TO REQUISITIONED
COMMODITIES, BUT (2) AS AUTHORIZING RETROACTIVE PRICE ADJUSTMENTS FOR
REQUISITION TRANSACTIONS COMPLETED BEFORE READJUSTMENT IS SOUGHT.  NOT
UNNATURALLY, THE GOVERNMENT STATES THAT THE APPLICABILITY OF THIS
PROCEDURE FOR READJUSTMENT "TO REQUISITIONED COMMODITIES MAY NOT BE
READILY APPARENT FROM ITS TERMS."  WHILE NORMALLY WE ACCEPT THE
CONSTRUCTION PLACED UPON A REGULATION BY THOSE CHARGED WITH ITS
ADMINISTRATION, WE MUST REJECT A CONSTRUCTION THAT IS NOT ONLY AS
UNNATURAL AS WHAT IS NOW PROPOSED BUT COMES TO US POST LITEM MOTAM FIVE
YEARS AFTER THE APPLICATION.  IT SHOULD ALSO BE POINTED OUT THAT THE
CONSTRUCTION NOW PLACED UPON THE REGULATIONS IS NOT MADE BY THE
ADMINISTRATION THAT PROMULGATED IT BUT BY THE SECOND SUCCESSOR AGENCY
FOR LIQUIDATING WHAT IS LEFT OF THIS ADMINISTRATION.  WITH DUE REGARD
FOR THE RESPECT WE OWE TO ADMINISTRATIVE RULINGS IN THEIR NORMAL
SETTING, IT WOULD REQUIRE SUCH A REMAKING OF THE REGULATIONS AS REASON
AND FAIR DEALING HERE REJECT.  THE PROVISIONS FOR READJUSTMENT OF
CONTRACTS RELATE TO A TRANSACTION IN WHICH THE SELLER AND THE
PURCHASING AGENCY OF THE GOVERNMENT WERE IN AGREEMENT AS TO THE
CONTRACT PRICE.  THE PRICE WAS PAID, SUBJECT TO THE APPROVAL OF THE
APPLICATION FOR ADJUSTMENT.  IF SO APPROVED, THE SELLER RETAINED THE
PURCHASE PRICE; IF DISAPPROVED, THE SELLER HAD TO MAKE A REFUND.  SEE
ARMOUR & CO. V. BROWN, 137 F.2D 233, 240.  IN THE CASE OF A
REQUISITIONED COMMODITY, CERTAINLY PRIOR TO THE FILING OF AN
APPLICATION, NO AMOUNT IS AGREED UPON, AND NO PROVISION FOR REFUND HAS
BEEN MADE.  IN SHORT, WE REJECT THIS BELATED AND NOVEL CONSTRUCTION AND
ARE OF THE OPINION THAT THE PENDENCY OF THIS MORIBUND APPLICATION
BEFORE THE R.F.C., NOW WITHDRAWN BY THE RESPONDENT, WAS NO BAR TO THIS
SUIT.    FN4  IF THE RESPONDENT HAD SOLD THE PORK PRODUCTS IN
CONTROVERSY HERE TO ITS REGULAR CUSTOMERS, IT WOULD HAVE DONE SO AT THE
APPLICABLE CEILING PRICES.  IF THE GOVERNMENT HAD THEN REQUISITIONED
THE PROPERTY FROM THESE CUSTOMERS, THERE WOULD HAVE BEEN NO QUESTION
THAT THE CEILING PRICES WOULD HAVE BEEN THE MEASURE OF JUST
COMPENSATION.    FN5  THIS WAS OBVIOUSLY NOT THE COST OF THE HOGS FROM
WHICH THE PORK PRODUCTS REQUISITIONED BY THE ORDER OF MARCH 1, 1943,
WERE PROCESSED.  THE RELEVANT HOGS WERE PURCHASED IN SOME PREVIOUS
MONTH AND AT A LOWER COST.  THE CHICAGO AVERAGE WAS $15.35 IN FEBRUARY
AND $14.78 IN JANUARY, 1943, AND $14.01 IN DECEMBER AND $13.96 IN
NOVEMBER, 1942.  LIVESTOCK, MEATS, AND WOOL MARKET STATISTICS AND
RELATED DATA 1945, COMPILED BY THE LIVESTOCK BRANCH, PRODUCTION AND
MARKETING ADMINISTRATION, UNITED STATES DEPARTMENT OF AGRICULTURE, P.
54.  MOREOVER, THESE WERE THE AVERAGE PRICES FOR AVERAGE WEIGHTS OF
HOGS.  IBID.  THE GOVERNMENT TOOK SPECIFIC PORK PRODUCTS WHICH WERE
PROCESSED FROM HOGS OF A DEFINITE WEIGHT FOR WHICH THE RESPONDENT PAID
SPECIFIC PRICES IN THE CHICAGO, ST. LOUIS, OR INDIANAPOLIS MARKETS. 

FN6  THERE ARE "NUMEROUS BY-PRODUCTS," AND THE COMPUTATION OF THE
VALUES FOR "SUCH BY-PRODUCTS AS CASINGS, GREASE, FERTILIZER, AND HOG
HAIR, IS RATHER COMPLEX."  GREER, PACKINGHOUSE ACCOUNTING (PREPARED BY
THE COMMITTEE ON ACCOUNTING OF THE INSTITUTE OF AMERICAN MEAT
PACKERS)(1929) AT 213 AND 219, RESPECTIVELY; SEE, GENERALLY, CLEMEN, BY
PRODUCTS IN THE PACKING INDUSTRY (1929); MOULTON AND LEWIS, MEAT
THROUGH THE MICROSCOPE (REV. ED. 1940); READINGS ON BY-PRODUCTS OF THE
MEAT PACKING INDUSTRY, COLLECTED BY THE INSTITUTE OF MEAT PACKING,
UNIVERSITY OF CHICAGO (1941); RHOADES, MERCHANDISING PACKINGHOUSE
PRODUCTS, INSTITUTE OF MEAT PACKING, UNIVERSITY OF CHICAGO (1929);
TOLMAN, PACKING-HOUSE INDUSTRIES (1922). 

FN7  SINCE, AS WE HOLD, THE VALUE OF THE INDIVIDUAL PRODUCTS CAN ONLY
BE DETERMINED BY PROPORTIONATE ALLOCATION FROM THE OVER-ALL OPERATIONS,
IT SEEMS TO US THAT RESPONDENT'S ACCEPTANCE OF THE AWARD AS TO THE LARD
WAS HARDLY CONSISTENT WITH ITS REJECTION OF THE AWARD AS TO THE OTHER
PORK PRODUCTS. 

FN8  "ON MUCH OF THE MATERIAL TRANSFERRED (FROM ONE OF THE
SLAUGHTERER'S DEPARTMENTAL ACCOUNTS TO ANOTHER), SUCH AS BLOOD, BONES,
TANKAGE, GLUE STOCK, ETC., THERE IS NO ASCERTAINABLE OUTSIDE MARKET,
AND THE PACKERS MUST PERFORCE PLACE QUITE ARBITRARY VALUATIONS ON THIS
MATERIAL HAVING NO PROBABLE RELATION TO EITHER COST OR MARKET.  AGAIN
CERTAIN PRODUCTS ARE IN THE GREEN STAGE WHEN TRANSFERRED, AND AN
OUTSIDE MARKET ONLY OBTAINS FOR THE FINISHED STAGE, WITH THE RESULT
THAT ARBITRARY DEDUCTIONS MUST BE MADE FROM THE FINISHED MARKET,
ESTIMATED TO ESTABLISH A NONEXISTENT 'GREEN' MARKET.  THE CERTIFICATION
OF INTERNAL TRANSFER PRICES PRESENTS, ACCORDINGLY, AN ALMOST
INTERMINABLE PROBLEM TO ANY OUTSIDE REVIEWING BODY."  REPORT OF THE
FEDERAL TRADE COMMISSION ON THE MEAT-PACKING INDUSTRY (1920), PART V,
56.  THE INDUSTRY'S POSITION AS TO THE UTILIZATION OF SUCH COST
ALLOCATIONS AND THE PRICE ADMINISTRATOR'S OBJECTIONS THERETO ARE QUOTED
FULLY AND DISCUSSED IN ARMOUR & CO. V. BOWLES, 148 F.2D 529, 535-39. 

FN9  IT IS ALSO SIGNIFICANT THAT NONE OF THE OTHER 130 PROTESTANTS
SOUGHT REVIEW IN THE EMERGENCY COURT OF APPEALS.  CF., E.G., KINGAN &
CO. V. BOWLES, 144 F.2D 253, AND ARMOUR & CO. V. BOWLES, 148 F.2D 529,
FOR THAT COURT'S VIEWS ON REPLACEMENT COST AS A BASIS FOR THE
DETERMINATION OF VALUE. 

FN10  "IT IS A NOTABLE FACT, THAT ACCORDING TO THE PRESENT METHOD OF
DEPARTMENTAL ACCOUNTING, THE PACKERS ARE IN THE HABIT OF SHOWING LOW
PROFITS OR EVEN POSITIVE LOSSES IN THE CARCASS-MEAT DEPARTMENTS, WHILE
AT THE SAME TIME EXHIBITING LARGE PROFITS IN THE BY-PRODUCTS OR
'SPECIALTY' DEPARTMENTS, THE CHIEF REASON FOR THIS SOMEWHAT
EXTRAORDINARY STATE OF AFFAIRS BEING FOUND IN THE VALUATIONS PLACED
UPON TRANSFERS."  REPORT OF THE FEDERAL TRADE COMMISSION ON THE MEAT
PACKING INDUSTRY (1920), PART V, 56.  WHILE A GREAT DEAL OF TIME HAS
PASSED SINCE THIS 1920 REPORT, THE PRICE ADMINISTRATOR REACHED THE SAME
CONCLUSIONS IN 1943, AND THE EMERGENCY COURT OF APPEALS QUOTED THE
REPORT MORE FULLY IN 1945.  SEE ARMOUR & CO. V. BOWLES, 148 F.2D AT
537. 

FN11  SEE WAR PROFITS STUDY NO. 14, OFFICE OF RESEARCH, FINANCIAL
ANALYSIS BRANCH, OFFICE OF PRICE ADMINISTRATION, OFFICE OF TEMPORARY
CONTROLS (1947) PP. 17, 45-47, 73-75.  THIS IS A STUDY OF THE PROFITS
OF 520 FOOD PROCESSORS, BUT THE FOREGOING REFERENCES WERE TO THE
SEPARATE TABULATIONS CONCERNING THE 79 MEAT PACKERS INCLUDED IN THE
STUDY.  THE FINANCIAL DATA WAS COMPILED FROM MOODY'S INDUSTRIALS,
STANDARD & POOR'S CORPORATION RECORDS, AND THE OPA FINANCIAL REPORTS
SUBMITTED BY THE PACKERS.  ID. AT 19.  OF THE TOTAL 79 MEAT PACKERS, 54
ARE PROCESSING SLAUGHTERERS, 10 NON-PROCESSING SLAUGHTERERS, AND 15 NON
SLAUGHTERERS.  THE COMPARISON BETWEEN THE 1943 OPERATIONS AND THE BASE
PERIOD (1936-39 AVERAGE) OPERATIONS SHOWS FOR THE 54 PROCESSING
SLAUGHTERERS:  NET SALES:  1943 - $4,575,528,000(AFTER RENEGOTIATION
REFUNDS)/BASE PERIOD - $2,382,211,000; PROFITS BEFORE INCOME TAXES:
1943 - $125,463,000(AFTER RENEGOTIATION REFUNDS)/BASE PERIOD -
$24,415,000; PROFITS AFTER TAXES:  1943 - $50,402,000(AFTER
RENEGOTIATION REFUNDS)/BASE PERIOD - $19,255,000; RETURN ON SALES:
1943 - 2.7%/BASE PERIOD - 1.0%; RETURN ON NET WORTH:  1943 - 19.5%/
BASE PERIOD - 4.1%; RETURN ON INVESTED CAPITAL:  1943 - 16.5%/BASE
PERIOD - 4.1%.  ID. AT 45, 47.  FOR THE 10 NON-PROCESSING SLAUGHTERERS,
THE COMPARISON SHOWS:  NET SALES:  1943 - $62,098,000/BASE PERIOD -
$29,927,000; PROFITS BEFORE INCOME TAXES:  1943 - $1,027,000/BASE
PERIOD - $184,000; PROFITS AFTER TAXES:  1943 - $390,000/BASE PERIOD -
$147,000; RETURN ON SALES:  1943 - 1.7%/BASE PERIOD - .6%; RETURN ON
NET WORTH:  1943 - 28.0%/BASE PERIOD - 6.3%; RETURN ON INVESTED
CAPITAL:  1943 - 25.5%/BASE PERIOD - 5.9%.  IBID. 

FN12  RESPONDENT'S INCOME ACCOUNT FOR THE YEAR ENDING DECEMBER 31,
1943, SHOWS: 

"NET SALES............................  $14,225,056 

COST OF SALES.........................   12,950,785 

SELLING, ETC., EXP....................      869,770 

OPERATING PROFIT......................      404,500 

OTHER INCOME..........................       18,717 

TOTAL INCOME..........................      423,217 

MISC. DEDUCTIONS......................       13,229 

INCOME TAXES..........................      176,619 

NET INCOME............................      233,369 

EARN., PFD.  SHARE.....................               $40.21 

EARN., COM. SHARE.....................                17.97" 

SEE MOODY'S MANUAL OF INVESTMENTS, AMERICAN AND FOREIGN, INDUSTRIAL
SECURITIES, 1944, P. 647.  THE 1943 NET INCOME FIGURE OF $233,369
COMPARED FAVORABLY WITH PRECEDING YEARS:  1942 - $73,292; 1941 -
$150,069; 1940 - $148,164; AND 1939 - D$76,936. 

FN13  THE COURT BELOW FOUND THAT IN ORDER TO PROTECT ITS GOOD WILL
AND KEEP ITS ORGANIZATION INTACT, "THROUGHOUT THE PERIOD MENTIONED
(PRIOR TO AND AFTER THE MARCH 1943 REQUISITION), PLAINTIFF (RESPONDENT)
CONTINUED TO BUY LIVE HOGS AT PREVAILING PRICES AND TO SELL PORK
PRODUCTS DERIVED FROM THEM AT THE CEILING PRICES AUTHORIZED BY
REGULATIONS OF THE OFFICE OF PRICE ADMINISTRATION, EVEN WHEN THE COST
OF LIVE HOGS WAS GREATER THAN THE WHOLESALE PRICES OF THE PRODUCTS
OBTAINED FROM THEM."  67 F.SUPP.  AT 1022. 

FN14  "IF ONE ENTERS MY CLOSE, AND WITH AN IRON SLEDGE AND BAR BREAKS
AND DISPLACES THE STONES ON THE LAND, BEING MY CHATTELS, AND I REQUEST
HIM TO DESIST, AND HE REFUSES, AND THREATENS ME IF I SHALL APPROACH
HIM; AND UPON THIS I, TO PREVENT HIM FROM DOING MORE DAMAGE TO THE
STONES, NOT DARING TO APPROACH HIM, THROW SOME STONES AT HIM MOLLITER
ET MOLLI MANU, AND THEY FALL UPON HIM MOLLITER, STILL THIS IS NOT A
GOOD JUSTIFICATION, FOR THE JUDGES SAY THAT ONE CANNOT THROW STONES
MOLLITER, ALTHOUGH IT WERE CONFESSED BY A DEMURRER  ...  "  COLE V.
MAUNDER, 2 ROLL.  ABR.  548(K.B. 1635)(AS TRANSLATED FROM THE NORMAN
FRENCH IN AMES, CASES ON PLEADING (1875) 2). 

FN15  THE COURT BELOW FOUND THAT THE $25,112.50 AWARD WAS THE
EQUIVALENT OF THE CEILING PRICE OF THE REQUISITIONED PROPERTY WHEN SOLD
AT WHOLESALE IN CARLOAD QUANTITIES AT PHILADELPHIA ON MARCH 3, 1943,
THE DATE THE GOVERNMENT TOOK POSSESSION AND TITLE; THAT THE RESPONDENT
CUSTOMARILY SOLD ITS PRODUCTS AT WHOLESALE BUT IN LOTS OF LESS THAN 500
POUNDS EACH AND THAT IT MADE DELIVERY TO ITS CUSTOMERS BY MEANS OF 57
ROUTE TRUCKS; THAT THE CEILING PRICE IF THE REQUISITIONED PROPERTY HAD
BEEN SOLD IN THIS CUSTOMARY MANNER WOULD HAVE BEEN $26,362.50; THAT THE
DIFFERENCE BETWEEN THE TWO CEILING PRICE FIGURES RESULTED FROM THE $1
PER CWT. DEDUCTION ESTABLISHED BY THE PRICE REGULATION FOR SALES IN
CARLOAD QUANTITIES; AND THAT THE "$1.00 DIFFERENTIAL WAS INTENDED TO
PARTIALLY DEFRAY THE EXPENSE INCURRED FOR DELIVERY AND SALE IN LESS
THAN CARLOAD QUANTITIES."  67 F.SUPP.  AT 1022.  RESPONDENT DID NOT
CHALLENGE THE REASONABLENESS OF THE $1 DIFFERENTIAL IN ITS PETITION
FILED WITH THE COURT BELOW.  RESPONDENT ARGUES HERE, HOWEVER, THAT THE
EFFECT OF THE DIFFERENTIAL IS TO REDUCE THE RETURN IT WOULD HAVE NETTED
IF IT HAD BEEN ALLOWED TO SELL THE REQUISITIONED PRODUCTS IN SMALL
QUANTITIES.  BUT, BEARING IN MIND THAT THIS IS A SUIT FOR ACTUAL
DAMAGES, THE ARGUMENT HAS A FATAL WEAKNESS.  IF THE RESPONDENT HAD SOLD
IN SMALLER QUANTITIES AT THE HIGHER CEILING PRICE AND MADE DELIVERY BY
TRUCK, IT WOULD HAVE INCURRED ALL OF THE EXPENSES THAT MOTIVATED THE
DIFFERENTIAL - INVOICING, BILLING, HANDLING, AND TRANSPORTATION.  NONE
OF THESE EXPENSES WAS INCURRED WHEN THE GOVERNMENT REQUISITIONED THE
PORK PRODUCTS.  THE "LOSS" IN THE GROSS SALES FIGURES WOULD HAVE BEEN
COUNTERBALANCED, TO SOME EXTENT AT LEAST, BY THE ADDITIONAL
EXPENDITURES.  CF. SUPERIOR PACKING CO. V. CLARK, 164 F.2D 343, 347
48.  ALL THIS BEARS ON THE GUIDING CONSIDERATION THAT RECOVERY IN THIS
ACTION MUST BE RELATED TO PROOF OF ACTUAL LOSS. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE MURPHY
JOIN, CONCURRING IN THE JUDGMENT. 

I AGREE WITH THE DISPOSITION OF THIS CASE MADE BY JUSTICE
FRANKFURTER'S OPINION.  HOWEVER, I CANNOT CONCUR IN THE REASONING BY
WHICH THAT RESULT IS REACHED.  THAT OPINION HOLDS THAT THE RESPONDENT
IS NOT ENTITLED TO RECOVER AS "JUST COMPENSATION" ANYTHING IN ADDITION
TO THE CEILING PRICE UNLESS IT CAN "ESTABLISH A LOSS BASED ON ITS TOTAL
OPERATIONS DURING THE PERIOD RELEVANT TO THE SLAUGHTERING OF THE HOGS
FROM WHICH THE REQUISITIONED PRODUCTS WERE PROCESSED" AND "DETERMINE BY
REASONABLE ALLOCATIONS THE PORTION OF THE LOSS PROPERLY ATTRIBUTABLE TO
THE GOODS SEIZED BY THE GOVERNMENT."  WHY A LOSS ON TOTAL OPERATIONS
MUST BE ESTABLISHED IN ORDER TO SHOW THE LOSS ON THE HOG PRODUCTS
REQUISITIONED BY THE GOVERNMENT IS NOT CLEAR TO ME.  IT IS THE MARKET
VALUE OF ANY PRODUCT THAT IS THE BASIS FOR "JUST COMPENSATION."  IF
THERE IS NO REAL MARKET VALUE, COST MAY BE AN ELEMENT IN THE
DETERMINATION OF VALUE.  UNDER THE CIRCUMSTANCES OF THIS CASE, ANY
OTHER VALUE THAN THE CEILING PRICE IS ILLUSORY.  CONSEQUENTLY I BELIEVE
THAT WHENEVER PERISHABLE PROPERTY IS TAKEN FOR PUBLIC USE UNDER
CONTROLLED-MARKET CONDITIONS, THE CONSTITUTIONALLY ESTABLISHED MAXIMUM
PRICE IS THE ONLY PROPER STANDARD OF "JUST COMPENSATION." 

FIVE MEMBERS OF THIS COURT EXPRESS THEIR AGREEMENT THAT REPLACEMENT
COST, IF RELEVANT, HAS BEEN PROPERLY FOUND BY THE COURT OF CLAIMS.  IF
REPLACEMENT COST, DETERMINED BY ANY ACCOUNTING SYSTEM, IS A FACTOR, THE
EVIDENCE ON WHICH THE COURT OF CLAIMS BASED ITS FINDINGS OF THAT COST
IS NOT BEFORE US, AND THEREFORE THOSE FINDINGS CANNOT BE PROPERLY
REGARDED AS UNSATISFACTORY.  EVEN IF WE ASSUME THAT THE EVIDENCE
OFFERED DID NOT PROPERLY ALLOCATE COSTS, THE GOVERNMENT RAISED NO SUCH
ISSUE BY ITS PETITION FOR CERTIORARI OR IN ITS BRIEF.  THE RECORD DOES
SHOW A FINDING OF REPLACEMENT COST BASED UPON SOME EVIDENCE.  IN THE
ABSENCE OF THAT EVIDENCE FROM THE RECORD, IT MUST BE ASSUMED THAT IT
WOULD SUPPORT THE FINDINGS.  IF WE ASSUME THAT REPLACEMENT COST IS
RELEVANT, TO SAY THAT A MANUFACTURER WHO PROVES THAT COST BY THE
RESULTS OF HIS OWN SYSTEM OF COST ACCOUNTING MAY NOT RETAIN HIS AWARD
BECAUSE A MORE ACCURATE ACCOUNTING SYSTEM EXISTS, THOUGH NOT OFFERED IN
EVIDENCE, DISREGARDS THE SALUTARY RULE THAT LITIGANTS IN CIVIL MATTERS
MUST BE ALLOWED TO FRAME THEIR ISSUES AND PROVE THEIR CASES IN TRIAL
COURTS AS EACH DESIRES.  THIS PRINCIPLE INCLUDES THE INTRODUCTION OF
SUCH RELEVANT EVIDENCE AS EACH WISHES TO INTRODUCE.  OFTEN PROOF OF
VALUE OR DAMAGES IS DIFFICULT.  COURTS THEN REACH CONCLUSIONS FROM THE
RELEVANT EVIDENCE PRESENTED.  PALMER V. CONNECTICUT RAILWAY & LIGHTING
CO., 311 U.S. 544; BIGELOW V. RKO RADIO PICTURES, 327 U.S. 251. 
FINDINGS ARE PROPERLY MADE ON THE BASIS OF THE RELEVANT EVIDENCE HEARD
AND ARE NOT SUBJECT TO ATTACK BECAUSE OTHER AVAILABLE EVIDENCE MIGHT
HAVE BEEN PRODUCED.  THE SUGGESTION OF JUSTICE FRANKFURTER'S OPINION AS
TO A BETTER METHOD FOR DETERMINING REPLACEMENT COST IS FUTILE, SINCE IT
FURNISHES A RULE, REJECTED BY THE MAJORITY OF THIS COURT, FOR THE COURT
OF CLAIMS TO USE IN DETERMINING JUST COMPENSATION.  THE APPROVAL OF THE
METHOD OF DETERMINING REPLACEMENT COST USED BY THE COURT OF CLAIMS BY A
MAJORITY OF THIS COURT LOGICALLY REQUIRES A DECISION ON WHETHER OR NOT
THE CEILING PRICE REPRESENTS "JUST COMPENSATION." 

IT MAY BE ASSUMED THAT THE RESPONDENT CANNOT REPLACE THE
REQUISITIONED HOG PRODUCTS AT THE CEILING PRICE.  IF RESPONDENT WAS
IMPELLED TO REPLACE THE REQUISITIONED PRODUCTS IN ITS STOCK, ITS
REASONS FOR SO DOING LAY IN THE REALM OF BUSINESS JUDGMENT.  THERE WAS
NO LEGAL COMPULSION.  IT ACTED TO KEEP ITS LINE OF GOODS COMPLETE, TO
SERVE ITS CUSTOMERS AND TO PRESERVE ITS GOOD WILL.  ANY ADDITIONAL COST
TO THE RESPONDENT CAUSED BY REPLACING THE PRODUCTS WAS A CONSEQUENTIAL
DAMAGE FOR WHICH COMPENSATION IS NOT GIVEN IN FEDERAL CONDEMNATION
PROCEEDINGS.  UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372, 378.  SEE
UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373, 382.    IT HAS
BEEN LONG ESTABLISHED THAT IN A FREE MARKET THE MARKET PRICE IS THE
PROPER CRITERION FOR DETERMINING "JUST COMPENSATION."  OLSON V. UNITED
STATES, 292 U.S. 246, 255; BROOKS-SCANLON CORP. V. UNITED STATES, 265
U.S. 106, 123.  IN VOGELSTEIN & CO. V. UNITED STATES, 262 U.S. 337,
THIS COURT HELD THAT THE PREVAILING PRICE IN A CONTROLLED MARKET WAS
"JUST COMPENSATION."  THE VOGELSTEIN COMPANY WAS A WHOLESALER OF
REFINED COPPER.  BETWEEN SEPTEMBER 28, 1917, AND FEBRUARY 1, 1918, THE
UNITED STATES REQUISITIONED FROM THE COMPANY 12,542,857 POUNDS OF
COPPER FOR WHICH IT PAID 23.5[ PER POUND.  BUT THIS PRICE WAS NOT THE
RESULT OF THE INTERPLAY OF SUPPLY AND DEMAND ON A FREE AND OPEN MARKET;
IT WAS A PRICE FIXED BY AN AGREEMENT MADE BY THE WAR INDUSTRIES BOARD
WITH COPPER PRODUCERS AND APPROVED BY THE PRESIDENT ON SEPTEMBER 21,
1917.  VOGELSTEIN COMPANY, ALTHOUGH NOT A PRODUCER, HAD APPARENTLY
COOPERATED WITH THE PRODUCERS IN THE ESTABLISHMENT AND MAINTENANCE OF
THE 23.5[ PRICE.  THE COMPANY ARGUED THAT IT WAS ENTITLED TO 26.8[ PER
POUND - THE AVERAGE COST TO IT OF THE COPPER REQUISITIONED BY THE
UNITED STATES.  THIS COURT CONCLUDED THAT PAYING THE FIXED 23.5[ WAS
CORRECT.  "THE MARKET PRICE WAS PAID.  THE MARKET VALUE OF THE COPPER
TAKEN AT THE TIME IT WAS TAKEN MEASURES THE OWNER'S COMPENSATION."  262
U.S. AT 340.  CONSEQUENTLY, THE JUDGMENT OF THE COURT OF CLAIMS
DISMISSING THE COMPANY'S PETITION WAS AFFIRMED.  THIS ACCEPTANCE OF THE
FIXED PRICE AS THE MARKET VALUE CLOSELY APPROACHES THE SITUATION NOW
PRESENTED. 

IT WOULD BE ANOMALOUS TO HOLD THAT CONGRESS CAN CONSTITUTIONALLY
REQUIRE PERSONS IN THE POSITION OF THE RESPONDENT TO SELL THEIR
PERISHABLE PROPERTY TO THE GENERAL PUBLIC AT A FIXED PRICE OR NOT TO
SELL TO ANYONE  FN1  AND LATER TO HOLD THAT THE GOVERNMENT MUST PAY A
HIGHER PRICE THAN THE GENERAL PUBLIC WHERE IT REQUISITIONS THE
PERISHABLE PROPERTY BECAUSE OF A REPLACEMENT COST, GREATER THAN THE
FIXED PRICE.  IT IS TRUE THAT THE UNITED STATES BY EXERCISING ITS POWER
OF REQUISITIONING COMPELLED THE RESPONDENT TO SELL TO IT; BUT THE
COMPULSION TO SELL TO THE GENERAL PUBLIC AT CEILING PRICES WAS HARDLY
LESS SEVERE.  THE CHOICE WAS BETWEEN SALES AT THE FIXED PRICE OR, AT
THE BEST, ECONOMIC HIBERNATION AND, AT THE WORST, ECONOMIC EXTINCTION. 
THE TWO SITUATIONS ARE SO PARALLEL THAT THE CONSTITUTIONALLY
ESTABLISHED MAXIMUM PRICE MAY, UNDER THE CIRCUMSTANCES HERE, BE
PROPERLY TAKEN AS THE MEASURE OF "JUST COMPENSATION."  THAT LAWFULLY
FIXED MARKET PRICE DETERMINES WHAT THE PERISHABLE ARTICLE CAN BE SOLD
FOR OR ITS MARKET VALUE IN ANY REAL SENSE.  IT GIVES TO THE CONDEMNEE
ANY PROFIT FOR INCREASED VALUE IN HIS HANDS AND TAKES NOTHING FROM HIM
THAT HE COULD LAWFULLY OBTAIN SINCE CONSEQUENTIAL DAMAGES FOR LOSS OF
GOOD WILL CANNOT BE OBTAINED.  SUCH MAXIMUM PRICE IS "JUST
COMPENSATION."  FN2 

IF THE GOVERNMENT FIXED PRICES WITH THE PREDOMINANT PURPOSE OF
ACQUIRING PROPERTY AFFECTED BY ITS ORDER, A DIFFERENT SITUATION WOULD
BE PRESENTED.  HERE WE HAVE PRICE REGULATION OF MEAT PRODUCTS ON A
NATIONAL SCALE WITH JUDICIAL REVIEW OF THOSE REGULATIONS.  THE
GOVERNMENT SOUGHT FOR ITSELF NO UNIQUE OPPORTUNITY TO PURCHASE. 

THE RESPONDENT, AS JUSTICE FRANKFURTER'S OPINION POINTS OUT, FILED
SEVERAL PROTESTS AGAINST THE MAXIMUM PRICE REGULATIONS CONTROLLING THE
CEILING PRICES OF HOG PRODUCTS.  THESE PROTESTS WERE REJECTED BY THE
ADMINISTRATOR AND REVIEW BY THE EMERGENCY COURT OF APPEALS WAS NOT
SOUGHT.  IT WAS DURING THE COURSE OF THESE PROCEEDINGS THAT EVIDENCE OF
THE PROFIT AND LOSS OF THE INDUSTRY AND OF THE REPLACEMENT COST OF PORK
PRODUCTS COULD PROPERLY BE INTRODUCED.  HOWEVER, ONCE THE MAXIMUM PRICE
HAD BEEN SET AND HAD NOT BEEN SET ASIDE BY DIRECT ATTACK, THAT PRICE
BECAME THE ONLY RELEVANT MEASURE OF JUST COMPENSATION.  WHETHER
NORMALLY ADMISSIBLE OR NOT,  FN3  THE REPLACEMENT COST OF PERISHABLE
ARTICLES THEN SUBJECT TO PRICE CONTROL, BOUGHT TO MAINTAIN THE GOOD
WILL OF A BUSINESS, CANNOT BE AN ELEMENT IN THE DETERMINATION OF VALUE
TO FIX JUST COMPENSATION.  THEREFORE, EVIDENCE OF REPLACEMENT COST IN
CONDEMNATION PROCEEDINGS SUCH AS THAT BEFORE THE COURT TODAY IS
IRRELEVANT AND SHOULD NOT BE ADMITTED. 

FN1  SEE YAKUS V. UNITED STATES, 321 U.S. 414; BOWLES V. WILLINGHAM,
321 U.S. 503. 

FN2  CF. NORTZ V. UNITED STATES, 294 U.S. 317, 328-29. 

FN3  SEE ORGEL, VALUATION UNDER EMINENT DOMAIN (1936) 586. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

SIX MEMBERS OF THE COURT AGREE THAT THE JUDGMENT OF THE COURT OF
CLAIMS MUST BE REVERSED, BUT ARE EQUALLY DIVIDED IN THEIR GROUNDINGS. 
SINCE I AM IN PARTIAL AGREEMENT WITH BOTH GROUPS, I STATE MY OWN
CONCLUSIONS INDEPENDENTLY. 

IT MAY BE, AS MY BROTHER REED AND THOSE WHO JOIN WITH HIM THINK, THAT
THE CEILING PRICE IN A WARTIME CONTROLLED MARKET SHOULD FURNISH THE
MEASURE OF CONSTITUTIONAL JUST COMPENSATION FOR PROPERTY OF A HIGHLY
PERISHABLE NATURE TAKEN.  PERHAPS ALSO THIS VIEW SHOULD BE QUALIFIED
FURTHER, AS BY SOME LIMITATION WHICH WOULD MAKE ADJUSTMENTS BEYOND THAT
PRICE PERMISSIBLE WHEN THE CIRCUMSTANCES OF THE TAKING ARE SUCH THAT
THEY WOULD ENTAIL DESTRUCTION OF PROPERTY VALUES BEYOND THOSE INHERENT
MERELY IN THE PROPERTY WHICH THE GOVERNMENT RECEIVES AND USES.  FN1 

BUT I AM ALSO IN AGREEMENT WITH MY BROTHER FRANKFURTER AND THOSE WHO
CONCUR WITH HIM THAT IT IS NOT NECESSARY TO REACH THESE IMPORTANT
CONSTITUTIONAL ISSUES IN THIS CASE.  FOR I THINK THAT, WITH REFERENCE
TO SUCH PERISHABLE COMMODITIES TAKEN UNDER CIRCUMSTANCES LIKE THESE,
THE LEGAL MARKET OR CEILING PRICE FURNISHES AT LEAST PRESUMPTIVELY THE
MEASURE OF JUST COMPENSATION, AND THAT THIS MEASURE SHOULD APPLY UNLESS
AND UNTIL THE OWNER SUSTAINS THE BURDEN OF PROVING THAT HE HAS
SUSTAINED SOME LOSS FOR WHICH HE IS ENTITLED TO A GREATER AWARD. 

THAT BURDEN, I ALSO AGREE, THE RESPONDENT HAS NOT SUSTAINED IN THIS
CASE.  THE COURT OF CLAIMS AWARDED RESPONDENT ITS "REPLACEMENT COSTS,"
IN THE VIEW THAT "WHEN PROPERTY IS TAKEN THE OWNER MUST BE PUT IN AS
GOOD POSITION PECUNIARILY AS HE WAS IN BEFORE HIS PROPERTY WAS TAKEN." 
FN2 PAYMENT OF THE CEILING PRICE DID NOT DO THIS, SINCE AS THE COURT
POINTED OUT RESPONDENT "FELT OBLIGED TO FURNISH ITS CUSTOMERS A CERTAIN
AMOUNT OF PRODUCTS, ALTHOUGH AT A LOSS, IN ORDER TO RETAIN THEIR GOOD
WILL AND  ...  HOLD ITS ORGANIZATION TOGETHER."  FN3  FOR THIS REASON
IT BECAME NECESSARY FOR RESPONDENT TO GO INTO THE MARKET AND PURCHASE
LIVE HOGS AND PROCESS THEM, PAYING A HIGHER PRICE THAN IT HAD PAID FOR
THE HOGS FROM WHICH THE PRODUCTS TAKEN HAD BEEN PROCESSED.  IN THIS WAY
RESPONDENT INCURRED A LOSS IT WOULD NOT HAVE INCURRED HAD THOSE
PRODUCTS NOT BEEN TAKEN. 

ON THIS BASIS, I AGREE WITH MR. JUSTICE REED THAT THE LOSS IS ONE FOR
CONSEQUENTIAL DAMAGES.  THAT IS, IT IS ONE TO COMPENSATE FOR LOSS
INCURRED TO PRESERVE UNIMPAIRED RESPONDENT'S GOOD WILL, FN4  NOT TO
COMPENSATE FOR ANY VALUE LAWFULLY OBTAINABLE FOR THE ARTICLES THEN OR
PROSPECTIVELY WITHIN ANY REASONABLE FUTURE PERIOD, IN VIEW OF THE
PROPERTY'S PERISHABLE NATURE, FROM OTHER SOURCES. 

BUT RESPONDENT ASSERTS ITS CLAIM TO "REPLACEMENT VALUE" ON A
DIFFERENT THEORETICAL BASIS, I.E., NOT AS COMPENSATION FOR LOSS
INCURRED IN PRESERVING GOOD WILL, BUT AS THE PROPER MEASURE OF THE
VALUE OF THE PROPERTY WHEN REQUISITIONED.  AND IF MARKET PRICE, HERE
CEILING PRICE, IS NOT THE MEASURE OF COMPENSATION, IT IS SAID
"REPLACEMENT COST" FURNISHES THE BEST SUBSTITUTE OR AT ANY RATE AN
APPROPRIATE ELEMENT FOR CONSIDERATION. 

THE DIFFERENCE IN THE PRESENT CIRCUMSTANCES WOULD SEEM TO BE HIGHLY
VERBAL.  FOR IN ANY EVENT THE LOSS WAS ACTUALLY INCURRED FOR THE
PURPOSE OF KEEPING RESPONDENT'S CUSTOMERS SATISFIED AND THUS PRESERVING
ITS GOOD WILL UNIMPAIRED; IN OTHER WORDS, TO PREVENT THE ACCRUAL OF
INJURY CONSEQUENTIAL TO THE TAKING. 

IT IS TRUE THAT IN CIRCUMSTANCES WHERE THERE IS NO MARKET VALUE,
"REPLACEMENT COST" HAS BEEN HELD APPROPRIATE FOR CONSIDERATION IN
REACHING A JUDGMENT CONCERNING THE VALUE WHICH IS JUST COMPENSATION. 
BUT THIS SEEMS TO ME A DIFFERENT THING FROM ALLOWING SUCH PROOF, WHEN
THE LOSS IT REFLECTS HAS BEEN INCURRED SOLELY TO PREVENT CONSEQUENTIAL
INJURY, AND THERE IS A MARKET VALUE PRESUMPTIVELY VALID TO COMPENSATE
FOR ALL LOSSES INCURRED EXCEPT THAT LOSS.  TO ALLOW THAT PROOF IN THESE
CIRCUMSTANCES WOULD BE IN SUBSTANCE IF NOT IN FORM TO PERMIT AN AWARD
FOR ELEMENTS OF CONSEQUENTIAL DAMAGES ENTIRELY OUT OF LINE WITH THE
POLICY OF THIS COURT'S PRIOR DECISIONS CONCERNING COMPENSATION FOR SUCH
INJURIES.  FN5 

THE CONSIDERATIONS SET FORTH BY MY BROTHER FRANKFURTER RESPECTING THE
DIFFICULTIES, INDEED THE NEAR IMPOSSIBILITY, OF PROVING COSTS IN THIS
CASE WOULD SEEM TO SUPPORT THIS CONCLUSION.  ACCORDINGLY, I CONCUR IN
THE JUDGMENT OF THE COURT. 

FN1  IN SOME SITUATIONS THE COURT HAS ALLOWED COMPENSATION FOR THE
DESTRUCTION OF PROPERTY AS BEING EQUIVALENT TO "TAKING" IT, CF., E.G.,
UNITED STATES V. WELCH, 217 U.S. 333; RICHARDS V. WASHINGTON TERMINAL
CO., 233 U.S. 546; UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373,
384; IN OTHERS APPARENTLY WHAT AMOUNTED IN EFFECT TO DESTRUCTION HAS
BEEN REGARDED AS INFLICTION OF CONSEQUENTIAL INJURIES AND THUS AS NOT
COMPENSABLE, CF. E.G., BOTHWELL V. UNITED STATES, 254 U.S. 231;
MITCHELL V. UNITED STATES, 267 U.S. 341. 

FN2  107 CT. CL. 155, 165.  FOR THIS GROUNDING THE COURT RELIED UPON
CITATION OF SEABOARD AIR LINE R. CO. V. UNITED STATES, 261 U.S. 299;
BROOKS-SCANLON CORP. V. UNITED STATES, 265 U.S. 106, 125; UNITED STATES
V. MILLER, 317 U.S. 369, 374; WALKER & CO. V. UNITED STATES, 105 CT.
CL. 553.  THE QUOTED STATEMENT, OF COURSE, TAKEN ABSTRACTLY, IS BROAD
ENOUGH TO PERMIT THE AWARD OF CONSEQUENTIAL DAMAGES, AN EFFECT CONTRARY
TO THIS COURT'S CONSISTENT RULINGS.  SEE THE AUTHORITIES CITED IN NOTE
4. 

FN3  107 CT. CL. 155, 165.  THE RECORD BEFORE US CONTAINS NO PROOF
THAT REPLACING THE REQUISITIONED GOODS WAS ESSENTIAL TO PREVENT
RESPONDENT FROM GOING OUT OF BUSINESS OR THAT THE LOSS OF GOOD WILL
ENTAILED BY THE TAKING, IF NOT REPAIRED BY REPLACEMENT, WOULD HAVE
PREVENTED CONTINUED EMPLOYMENT OF RESPONDENT'S EMPLOYEES OR DISRUPTED
ITS ORGANIZATION. 

FN4  SEE UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372, 378, AND
AUTHORITIES CITED; CF. UNITED STATES V. GENERAL MOTORS CORP., 323 U.S.
373, 383. 

FN5  SEE AUTHORITIES CITED IN NOTE 4. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

IT WOULD APPEAR THAT THIS COURT IN THIS CASE IS EXCEEDING THE
LIMITATION PLACED BY CONGRESS ON ITS REVIEW OF COURT OF CLAIMS
DECISIONS.  28 U.S.C. SEC. 288; 53 STAT. 752.  THE COURT DOES NOT
DECIDE, AS CONGRESS HAS AUTHORIZED IT TO DO, THAT ANY FINDING OF THE
COURT OF CLAIMS IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, OR THAT THE
ULTIMATE FINDINGS LACK SUPPORT IN EVIDENTIARY FINDINGS, OR THAT THERE
HAS BEEN A FAILURE TO MAKE FINDINGS ON THE MATERIAL ISSUES.  INSTEAD,
IN EFFECT IT SETS ASIDE THE JUDGMENT BELOW ON ITS OWN INTERPRETATION OF
"RECOGNIZED FACTS IN THE MEAT INDUSTRY."  OF THESE IT TAKES JUDICIAL
NOTICE ON THE BASIS OF AN ASSORTMENT OF PUBLICATIONS WHICH, WHATEVER
THEIR MERITS IF CALLED TO THE ATTENTION OF THE COURT BELOW, SHOULD NOT
IN THIS COURT OUTWEIGH SPECIFIC FINDINGS OF FACT BY THE COURT OF CLAIMS
BASED ON EVIDENCE BEFORE IT. 

TAKING THE FACTS AS FOUND BY THE COURT OF CLAIMS, THE CASE IS THIS:
CLAIMANT WAS A MEAT PACKER AND AMONG ITS PRODUCTS WERE PORK CHOPS.  THE
GOVERNMENT SET A MAXIMUM PRICE AT WHICH PORK CHOPS COULD BE SOLD.  IT
SET NO MAXIMUM PRICE ON THE TWO PRINCIPAL FACTORS IN THE COST OF PORK
CHOPS, VIZ:  LIVE HOGS AND LABOR.  THE RESULT WAS THAT CLAIMANT'S
UNCONTROLLED COSTS MOUNTED UNTIL, ON WHAT IS FOUND TO BE A FAIR
ALLOCATION OF COSTS BETWEEN CHOPS AND OTHER PRODUCTS OF THE HOG, IT WAS
COSTING MORE TO PRODUCE THE PORK CHOPS THAN THE PRICE FOR WHICH
CLAIMANT WAS PERMITTED TO SELL THEM.  BUT THERE WERE CERTAIN COLLATERAL
BENEFITS DERIVED FROM SUPPLYING OLD PATRONS, EVEN AT A LOSS, TO AVOID
HEAVIER LOSSES FROM SHUTTING DOWN THE BUSINESS AND TO KEEP CUSTOMER
GOOD WILL FOR THE HOPEDFOR DAY OF NORMAL BUSINESS. 

HOWEVER, THE GOVERNMENT DECIDED TO BUY CLAIMANT'S CHOPS.  IT OFFERED
THE MAXIMUM OPA PRICE.  AS THERE WAS NO SUCH COMPENSATING ADVANTAGE TO
THE PACKER IN SELLING ITS CHOICE CUTS TO THE GOVERNMENT AT A LOSS, AS
IN KEEPING ITS BUSINESS GOING WITH ITS GENERAL CUSTOMERS, IT REFUSED
THE OFFER.  THE GOVERNMENT THEN SEIZED ITS PORK CHOPS AND THE COMPANY
NOW CLAIMS THE "JUST COMPENSATION" WHICH THE CONSTITUTION GUARANTEES TO
THOSE WHOSE PRIVATE PROPERTY IS TAKEN FOR PUBLIC USE.  THE GOVERNMENT
CONTENDS, AND THE PRACTICAL EFFECT OF THE COURT'S HOLDING IS, THAT THE
COMPANY CAN RECOVER ONLY THE MAXIMUM PRICE FIXED FOR ITS PRODUCTS BY
THE OFFICE OF PRICE ADMINISTRATION, IN SPITE OF THE FINDING THAT THIS
IS LESS THAN IT COST TO PRODUCE OR TO REPLACE THEM. 

IT IS HARD TO SEE HOW JUST COMPENSATION CAN BE THE LEGAL EQUIVALENT
OF A CONTROLLED PRICE, UNLESS A CONTROLLED PRICE IS ALSO ALWAYS
REQUIRED TO EQUAL JUST COMPENSATION.  IT NEVER HAS BEEN HELD THAT IN
REGULATING A COMMODITY PRICE THE GOVERNMENT IS BOUND TO FIX ONE THAT IS
ADEQUATELY COMPENSATORY IN THE CONSTITUTIONAL SENSE, SO LONG AS THE
OWNER IS FREE TO KEEP HIS PROPERTY OR TO PUT IT ON THE MARKET AS HE
CHOOSES.  IF THE GOVERNMENT WERE REQUIRED TO DO SO, THE TASK OF PRICE
REGULATION WOULD BE CONSIDERABLY, IF NOT DISASTROUSLY, COMPLICATED AND
RETARDED.  IT SEEMS QUITE INDISPENSABLE TO THE GOVERNMENT ITSELF, FOR
THE LONG-RANGE SUCCESS OF PRICE CONTROLS, THAT FIXED PRICES FOR
VOLUNTARY SALES BE NOT IDENTIFIED WITH THE JUST COMPENSATION DUE UNDER
THE CONSTITUTION TO ONE WHO IS COMPELLED TO PART WITH HIS PROPERTY. 
THE WAR DID NOT REPEAL OR SUSPEND THE FIFTH AMENDMENT.  UNITED STATES
V. NEW RIVER COLLIERIES, 262 U.S. 341, 343; UNITED STATES V. COHEN
GROCERY CO., 255 U.S. 81, 88.  BUT IT IS OBVIOUS THAT THE
CONSTITUTIONAL GUARANTY OF JUST COMPENSATION FOR PRIVATE PROPERTY TAKEN
FOR PUBLIC USE BECOMES MEANINGLESS IF THE GOVERNMENT MAY FIRST, UNDER
ITS "WAR POWERS," FIX THE MARKET PRICE AND THEN MAKE ITS CONTROLLED
FIGURE THE MEASURE OF COMPENSATION.  FN1 

IT MUST BE REMEMBERED THAT MARKET PRICE, AS SUCH, IS NOT
CONTROLLING.  THE FIFTH AMENDMENT'S "EXACT LIMITATION ON THE POWER OF
THE GOVERNMENT"  FN2  IS NOT MARKET PRICE - IT IS JUST COMPENSATION. 
THE FORMER IS RELEVANT, AND THIS COURT HAS SO CONSIDERED IT, ONLY
BECAUSE, IN A FREE MARKET, IT IS PERHAPS THE BEST KEY TO VALUE AT THE
TIME OF TAKING.  ORIGINAL COST AND REPLACEMENT COST YIELD TO IT ONLY
BECAUSE OF THAT FACTOR.  BUT HERE, THERE IS NO TRUE MARKET PRICE FN3
TO PROVIDE THE USUALLY ACCEPTED STANDARD OF VALUE.  THE RELEVANCE OF
ORIGINAL COST AND REPLACEMENT COST, EVEN IN THIS SITUATION, CANNOT
SERIOUSLY BE DENIED.  IN THE ABSENCE OF AN OVER-RIDING FREE-MARKET
PRICE, THE COURTS MUST TURN TO THE SOUNDEST STANDARDS OTHERWISE
AVAILABLE. 

WE THINK THE COURT OF CLAIMS MADE NO ERROR OF LAW IN THINKING THAT
THE CONTROLLED MARKET PRICE FOR VOLUNTARY SALES WAS NOT THE MEASURE OF
JUST COMPENSATION FOR THE SEIZED PORK CHOPS.  LIMITING OUR REVIEW TO
THE SCOPE WHICH CONGRESS HAS AUTHORIZED, WE FIND NO ERROR IN ITS
CALCULATION OF JUST COMPENSATION FOR THE PURPOSES OF COMPLYING WITH THE
CONSTITUTIONAL REQUIREMENTS. 

FN1  SUCH A RULE HARDLY SQUARES WITH THE DOCTRINE LAID DOWN BY THIS
COURT MORE THAN FIFTY YEARS AGO THAT "THE COMPENSATION MUST BE A FULL
AND PERFECT EQUIVALENT FOR THE PROPERTY TAKEN," MONONGAHELA NAVIGATION
COMPANY V. UNITED STATES, 148 U.S. 312, 326, OR LATER EXPRESSIONS THAT
"THE OWNER SHALL BE PUT IN AS GOOD POSITION PECUNIARILY AS HE WOULD
HAVE BEEN IF HIS PROPERTY HAD NOT BEEN TAKEN," SEABOARD AIR LINE R. CO.
V. UNITED STATES, 261 U.S. 299, 304; OLSON V. UNITED STATES, 292 U.S.
246; UNITED STATES V. MILLER, 317 U.S. 369. 

FN2  "  ...  IN THIS FIFTH AMENDMENT, THERE IS STATED THE EXACT
LIMITATION ON THE POWER OF THE GOVERNMENT TO TAKE PRIVATE PROPERTY FOR
PUBLIC USES."  MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S.
312, 325. 

FN3  THE PRICE APPROVED AS JUST COMPENSATION IN VOGELSTEIN & CO. V.
UNITED STATES, 262 U.S. 337, WAS FIXED BY AGREEMENT BETWEEN THE
GOVERNMENT AND THE PRODUCERS, REPRESENTED BY A COMMITTEE WHOSE MEMBERS
VOGELSTEIN HAD NOMINATED, AND HELPED TO ELECT, TO REPRESENT THE
INDUSTRY.  THUS THAT PRICE IS NOT COMPARABLE TO THE GOVERNMENTDICTATED
PRICE INVOLVED IN THIS CASE.  IN THE VOGELSTEIN CASE, THIS COURT SAID:
"APPELLANT'S CONTENTION THAT THERE WAS NO MARKET PRICE OTHER THAN THAT
FIXED BY THE FIAT OF THE UNITED STATES IS WITHOUT SUPPORT.   ...  "
262 U.S. 339.  AND, FURTHER, "THE FINDING OF THE COURT OF CLAIMS IS
PLAIN AND CANNOT BE READ AS REFERRING TO A MERE FIAT PRICE."  262 U.S.
340. 
..END :












GREYHOUND LINES V. MEALEY, 334 U.S. 653 


NO. 14.  ARGUED OCTOBER 13, 1947.  - DECIDED JUNE 14, 1948.  - 296 N.Y.
18, 68 N.E.2D 855, REVERSED. 


1.  THE VALIDITY OF A STATE TAX UNDER THE FEDERAL CONSTITUTION WAS
CHALLENGED BEFORE THE STATE TAX COMMISSION OF NEW YORK AND ON REVIEW
BEFORE THE APPELLATE DIVISION OF THE SUPREME COURT.  NOTWITHSTANDING A
CLAIM THAT THE ONLY QUESTION PRESENTED WAS ONE OF STATUTORY
CONSTRUCTION, THE COURT OF APPEALS OF NEW YORK EXPRESSLY SUSTAINED THE
CONSTITUTIONALITY OF THE TAX AND CERTIFIED IN ITS REMITTITUR THAT IT
HAD DONE SO.  ON APPEAL TO THIS COURT, HELD:  THE CONSTITUTIONAL
QUESTION IS PROPERLY BEFORE THIS COURT FOR REVIEW.  PP. 654-655. 

2.  A COMMON CARRIER BY MOTOR VEHICLE CHALLENGED THE VALIDITY UNDER
THE FEDERAL CONSTITUTION OF A NEW YORK TAX ON ITS GROSS RECEIPTS FROM
TRANSPORTATION OF PASSENGERS BETWEEN TWO POINTS IN THE STATE BUT OVER A
ROUTE 42.53% OF WHICH WAS IN NEW JERSEY AND PENNSYLVANIA.  HELD: NEW
YORK MAY CONSTITUTIONALLY TAX GROSS RECEIPTS FROM THE TRANSPORTATION
APPORTIONED AS TO THE MILEAGE WITHIN THE STATE; BUT THE TAX ON GROSS
RECEIPTS FROM THAT PORTION OF THE MILEAGE OUTSIDE THE STATE UNDULY
BURDENS INTERSTATE COMMERCE, IN VIOLATION OF THE COMMERCE CLAUSE OF THE
CONSTITUTION.  PP. 655-664. 

CENTRAL GREYHOUND LINES, INC. V. MEALEY ET AL. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

THE CONSTITUTIONALITY OF A TAX LEVIED BY NEW YORK ON GROSS RECEIPTS
OF A COMMON CARRIER FROM TRANSPORTATION BETWEEN TWO POINTS IN NEW YORK,
BUT LARGELY THROUGH NEW JERSEY AND PENNSYLVANIA, WAS SUSTAINED BY THE
STATE TAX COMMISSION, THE APPELLATE DIVISION OF THE SUPREME COURT OF
NEW YORK (266 APP. DIV. 648, 44 N.Y.S.2D 652), AND THE COURT OF APPEALS
OF NEW YORK (296 N.Y. 18, 68 N.E.2D 855).  ON APPEAL TO THIS COURT,
REVERSED AND REMANDED, P. 664. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING ARISING OUT OF A DETERMINATION BY THE TAX
COMMISSION OF THE STATE OF NEW YORK, SUSTAINED BY THE COURTS OF THE
STATE, WHEREBY SEC. 186-A OF THE NEW YORK TAX LAW WAS CONSTRUED TO
IMPOSE A TAX ON APPELLANT'S GROSS RECEIPTS FROM TRANSPORTATION BETWEEN
POINTS WITHIN THE STATE BUT OVER ROUTES THAT UTILIZE THE HIGHWAYS OF
PENNSYLVANIA AND NEW JERSEY.  THE APPELLANT CONTENDS, AGAINST CONTRARY
CONCLUSIONS BELOW, THAT SINCE THE TAXED TRANSPORTATION WAS INTERSTATE
COMMERCE, NEW YORK MAY NOT CONSTITUTIONALLY TAX THE GROSS RECEIPTS FROM
SUCH TRANSPORTATION.  IN ANY EVENT, IT SUBMITS THAT THE STATE MAY
VALIDLY TAX ONLY SO MUCH OF THESE GROSS RECEIPTS AS ARE ATTRIBUTABLE TO
THE MILEAGE WITHIN THE STATE.  BEFORE DEALING WITH THESE ISSUES, WE
MUST DISPOSE OF AN OBJECTION TO OUR RIGHT TO DEAL WITH THEM. 

THE STATE URGES THAT THE CONSTITUTIONAL CLAIMS HERE PRESSED BY THE
APPELLANT WERE NOT PASSED UPON BY THE NEW YORK COURT OF APPEALS.  THE
RECORD DOES NOT SUSTAIN THIS CHALLENGE TO OUR JURISDICTION.  THE
CONSTITUTIONAL ISSUES WERE UNDENIABLY RAISED BEFORE THE STATE TAX
COMMISSION AND ON REVIEW BEFORE THE APPELLATE DIVISION OF THE SUPREME
COURT, 266 APP. DIV. 648.  THE SUGGESTION THAT THESE ISSUES WERE NOT
BEFORE THE COURT OF APPEALS IS BASED ON ITS STATEMENT THAT THE QUESTION
URGED THERE WAS "NOT ONE OF CONSTITUTIONAL TAXING POWER BUT OF
STATUTORY CONSTRUCTION."  296 N.Y. 18, 24.  BUT THE COURT PROCEEDED TO
PASS UPON THE CONSTITUTIONAL ISSUES AND EXPRESSLY HELD THAT "THERE IS
NO CONSTITUTIONAL OBJECTION TO TAXATION OF THE TOTAL RECEIPTS HERE. 
THIS IS NOT INTERSTATE COMMERCE  ...  "  296 N.Y. AT 25.  ITS AMENDED
REMITTITUR STATED EXPLICITLY THAT A QUESTION ARISING UNDER THE COMMERCE
CLAUSE OF THE CONSTITUTION "WAS PRESENTED AND PASSED UPON," AND THAT IN
SUSTAINING THE TAX THE COURT "HELD THAT THE AFORESAID STATUTE AS SO
CONSTRUED IS NOT REPUGNANT TO THAT PROVISION OF THE FEDERAL
CONSTITUTION."  THIS AMENDMENT WAS NOT A RETROSPECTIVE INJECTION OF A
NON-EXISTENT FEDERAL QUESTION, BUT A FORMAL CERTIFICATION THAT A
FEDERAL CLAIM HAD BEEN PRESENTED AND WAS ADJUDICATED BY THE COURT OF
APPEALS.  IT IS PROPERLY HERE FOR REVIEW.  SEC. 237(A) OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 344(A). 

THIS CASE SERVES TO REMIND ONCE MORE THAT COURTS DO NOT ADJUDICATE
ABSTRACTIONS, SUCH AS, "WHAT IS INTERSTATE COMMERCE?"  ALSO, IT AGAIN
ILLUSTRATES THAT EVEN IF IT BE FOUND THAT CERTAIN TRANSACTIONS IN FACT
CONSTITUTE INTERSTATE COMMERCE, SUCH CONCLUSION DOES NOT ANSWER THE
FURTHER INQUIRY WHETHER A PARTICULAR ASSERTION OF POWER BY A STATE OVER
SUCH TRANSACTIONS OFFENDS THE COMMERCE CLAUSE. 

IT IS TOO LATE IN THE DAY TO DENY THAT TRANSPORTATION WHICH LEAVES A
STATE AND ENTERS ANOTHER STATE IS "COMMERCE   ...  AMONG THE SEVERAL
STATES" SIMPLY BECAUSE THE POINTS FROM AND TO ARE IN THE SAME STATE. 
HANLEY V. KANSAS CITY SOUTHERN R. CO., 187 U.S. 617; WESTERN UNION TEL.
CO. V. SPEIGHT, 254 U.S. 17; MISSOURI PACIFIC R. CO. V. STROUD, 267
U.S. 404.  IN REACHING THE OPPOSITE CONCLUSION THE STATE COURT RELIED
UPON THREE DECISIONS OF THIS COURT:  LEHIGH VALLEY R. CO. V.
PENNSYLVANIA, 145 U.S. 192; EWING V. LEAVENWORTH, 226 U.S. 464; NEW
YORK EX REL. CORNELL STEAMBOAT CO. V. SOHMER, 235 U.S. 549.  THE EWING
CASE WAS BASED ON THE LEHIGH VALLEY CASE; THE CORNELL STEAMBOAT CASE
RELIED ON THE EWING AND THE LEHIGH VALLEY DECISIONS.  THE HOLDING IN
THE LEHIGH VALLEY CASE WAS DEFINED WITH PRECISION BY MR. JUSTICE HOLMES
IN THE HANLEY CASE.  HE ACCOUNTED FOR SOME STATE DECISIONS WHICH
DISREGARDED INTERSTATE COMMERCE AS A MATTER OF FACT, TESTED BY THE
ACTUAL TRANSACTION, AS "MADE SIMPLY OUT OF DEFERENCE TO CONCLUSIONS
DRAWN FROM LEHIGH VALLEY RAILROAD CO. V. PENNSYLVANIA, 145 U.S. 192,
AND WE ARE OF OPINION THAT THEY CARRY THEIR CONCLUSIONS TOO FAR."  HE
POINTED OUT THAT IN THE LEHIGH VALLEY CASE "THE TAX 'WAS DETERMINED IN
RESPECT OF RECEIPTS FOR THE PROPORTION OF THE TRANSPORTATION WITHIN THE
STATE.'  145 U.S. 201.  SUCH A PROPORTIONED TAX HAD BEEN SUSTAINED IN
THE CASE OF COMMERCE ADMITTED TO BE INTERSTATE."  HANLEY V. KANSAS CITY
SOUTHERN R. CO., SUPRA, AT 621.  THIS LIMITED SCOPE OF THE LEHIGH
VALLEY CASE WAS THE BASIS OF DECISION IN UNITED STATES EXPRESS COMPANY
V. MINNESOTA, 223 U.S. 335.  IN THAT CASE, THE MINNESOTA SUPREME COURT
HAD INTERPRETED THE LEHIGH VALLEY DECISION "AS ALLOWING A RECOVERY OF
TAXES UPON THAT PROPORTION OF THE EARNINGS DERIVED FROM THE CARRIAGE
WHOLLY WITHIN THE STATE.  THIS SEEMS TO US THE SAFER RULE, AND AVOIDS
ANY QUESTION OF TAXING INTERSTATE COMMERCE, AND WE ADOPT AND APPLY IT
TO THIS CASE.  NINE PER CENT. OF THE TAXES RECOVERED ON THIS CLASS OF
EARNINGS SHOULD BE DEDUCTED FROM THE AMOUNT OF THE RECOVERY."  114
MINN. 346, 350.  ON WRIT OF ERROR TO THE SUPREME COURT OF MINNESOTA,
THIS COURT UPHELD THE STATE COURT'S APPLICATION OF THE LEHIGH VALLEY
DECISION.  223 U.S. 335, 341-42. 

IN VIEW, HOWEVER, OF SOME CONTRARIETY OF VIEWS TO WHICH THE OPINION
IN THE LEHIGH VALLEY CASE HAS GIVEN RISE, IT CALLS FOR A MORE CANDID
CONSIDERATION THAN MERELY QUOTING PHRASES FROM IT CONGENIAL TO A
PARTICULAR DECISION.  THE LEHIGH VALLEY CASE WAS THIS.  THE LEHIGH
VALLEY RAILROAD COMPANY ATTACKED THE VALIDITY OF A PENNSYLVANIA STATUTE
TAXING THE COMPANY'S GROSS RECEIPTS FROM ITS LINE BETWEEN MAUCH CHUNK,
PENNSYLVANIA, AND PHILLIPSBURG, NEW JERSEY.  THE PENNSYLVANIA RAILROAD
OPERATED A CONNECTING LINE BETWEEN PHILLIPSBURG AND PHILADELPHIA.  THE
LEHIGH AND THE PENNSYLVANIA HAD ARRANGED FOR CONTINUOUS TRANSPORTATION
OF THROUGH PASSENGERS AND FREIGHT BETWEEN MAUCH CHUNK AND
PHILADELPHIA.  THE TRIAL COURT HAD FOUND, AS APPEARS FROM THE RECORD,
THAT THE "TOTAL RECEIPTS FROM THIS TRANSPORTATION, SEVEN PER CENT. OF
WHICH WERE COLLECTED BY THE LEHIGH VALLEY RAILROAD COMPANY AT POINT OF
SHIPMENT AND THE REMAINDER BY THE PENNSYLVANIA RAILROAD COMPANY AT
POINT OF DESTINATION, WERE APPORTIONED BETWEEN THE COMPANIES UPON A
MILEAGE BASIS - THAT IS TO SAY, EACH COMPANY'S SHARE WAS IN THE
PROPORTION THAT THE NUMBER OF MILES CARRIED BY IT BORE TO THE TOTAL
NUMBER OF MILES CARRIED."  IT SUSTAINED THE TAX ON THE GROUND THAT THE
TRANSPORTATION WAS IN SUBSTANCE "PURELY INTERNAL."  THE SUPREME COURT
OF PENNSYLVANIA AFFIRMED ON THE TRIAL COURT'S OPINION.  LEHIGH VALLEY
R. CO. V. COMMONWEALTH, 1 MONAG.  45, 17 ATL. 179. 

WHEN THE CASE GOT HERE, THE LEHIGH VALLEY CONTENDED THAT THE
TRANSPORTATION BETWEEN MAUCH CHUNK AND PHILLIPSBURG CONSTITUTED
INTERSTATE COMMERCE AND THEREFORE BEYOND THE TAXING POWER OF
PENNSYLVANIA, BECAUSE PHILLIPSBURG, WHILE ON THE DELAWARE RIVER BORDER
BETWEEN PENNSYLVANIA AND NEW JERSEY, WAS IN NEW JERSEY AND REACHED BY
THE RAILROAD VIA AN INTERSTATE BRIDGE.  PENNSYLVANIA, ON THE OTHER
HAND, IGNORING THE STRETCH OVER THE INTERSTATE BRIDGE (APPARENTLY ON
THE THEORY OF DE MINIMIS) INSISTED THAT THE GROSS RECEIPTS WERE DEEMED
TO BE "WHOLLY FROM TRAFFIC WITHIN THE STATE" BECAUSE SO TREATED BY THE
RAILROAD ITSELF.  THIS WAS BASED ON THE FACT THAT THE LEHIGH VALLEY AND
THE PENNSYLVANIA RAILROAD HAD APPORTIONED THE RECEIPTS FROM THEIR
THROUGH TRAFFIC, AND THE AMOUNT OF THE GROSS RECEIPTS WHICH
PENNSYLVANIA TAXED WAS THE PROPORTION WHICH THE RAILROADS INTER SE
ATTRIBUTED TO THE LEHIGH VALLEY AS ITS SHARE OF THE EARNINGS WITHIN
PENNSYLVANIA.  THIS FISCAL ARRANGEMENT BETWEEN THE TWO RAILROADS IS THE
EXPLANATION AND JUSTIFICATION FOR THE STATEMENT IN THIS COURT'S OPINION
THAT "THE TAX UNDER CONSIDERATION HERE WAS DETERMINED IN RESPECT OF
RECEIPTS FOR THE PROPORTION OF THE TRANSPORTATION WITHIN THE STATE." 
145 U.S. AT 201.  AND SO, NATURALLY ENOUGH, IN THE HANLEY CASE THE
COURT CALLED THE TAX WHICH HAD BEEN SUSTAINED IN THE LEHIGH VALLEY CASE
"A PROPORTIONED TAX," AND AS SUCH IT "HAD BEEN SUSTAINED IN THE CASE OF
COMMERCE ADMITTED TO BE INTERSTATE."  HANLEY V. KANSAS CITY SOUTHERN R.
CO., SUPRA, AT 621. 

IN SUPPORT OF THE PROPOSITION THAT "A PROPORTIONED TAX HAD BEEN
SUSTAINED IN THE CASE OF COMMERCE ADMITTED TO BE INTERSTATE" THE HANLEY
CASE INVOKED MAINE V. GRAND TRUNK R. CO., 142 U.S. 217.  UNFORTUNATELY,
THE OPINION IN LEHIGH VALLEY DID NOT RELY ON THAT CASE.  IT DID NOT
EVEN MENTION IT.  THIS SILENCE IS EXPLICABLE BY THE FACT THAT ONLY A
FEW MONTHS BEFORE, IN THE SAME TERM, THE COURT HAD SHARPLY DIVIDED ON
THIS VERY ISSUE IN THE GRAND TRUNK CASE.  IN THE LEHIGH VALLEY CASE MR.
CHIEF JUSTICE FULLER SPOKE FOR A UNANIMOUS COURT.  ONE IS ENTITLED TO
INFER THAT SUCH ACCORD WAS OBTAINABLE BY NOT RENEWING THE BATTLE OF THE
GRAND TRUNK CASE.  IT WOULD NOT BE THE FIRST TIME IN THE HISTORY OF
THIS COURT THAT AGREEMENT COULD BE REACHED BY ONE MODE OF REASONING BUT
NOT BY ANOTHER.  MR. JUSTICE BRADLEY AND HIS FELLOW DISSENTERS IN THE
GRAND TRUNK CASE WERE EVIDENTLY CONTENT TO SUSTAIN THE PENNSYLVANIA TAX
AS A TAX ON "DOMESTIC TRANSPORTATION," "INTERNAL INTERCOURSE," IN SHORT
AS NOT "INTERSTATE COMMERCE," FOR THEREBY THEY WOULD NOT BRING INTO
QUESTION THE VIEWS SO VIGOROUSLY EXPRESSED BY THEM A FEW MONTHS
BEFORE. 

IT WAS REASONABLE ENOUGH TO DISREGARD THE SHORT DISTANCE IN WHICH THE
TRANSPORTATION IN THE LEHIGH VALLEY CASE WENT OVER THE INTERSTATE
BRIDGE ON THE DELAWARE RIVER BUT OTHERWISE WAS WHOLLY IN PENNSYLVANIA,
AND TO TREAT IT AS DE MINIMIS WHEN THE RAILROAD'S ACCOUNTING ITSELF
TREATED THE RECEIPTS AS PROPORTIONED.  "REGULATION AND COMMERCE AMONG
THE STATES BOTH ARE PRACTICAL RATHER THAN TECHNICAL CONCEPTIONS, AND,
NATURALLY, THEIR LIMITS MUST BE FIXED BY PRACTICAL LINES."  GALVESTON,
HARRISBURG AND SAN ANTONIO R. CO. V. TEXAS, 210 U.S. 217, 225.  BUT TO
LABEL TRANSPORTATION ACROSS AN INTERSTATE STREAM "LOCAL COMMERCE" FOR
SOME PURPOSES WHEN IT IS "INTERSTATE COMMERCE" IN OTHER RELATIONS, SEE,
E.G., COVINGTON & CINCINNATI BRIDGE CO. V. KENTUCKY, 154 U.S. 204, IS
TO USE LOOSELY TERMS HAVING CONNOTATIONS OF CONSTITUTIONAL
SIGNIFICANCE.  TO CALL COMMERCE IN FACT INTERSTATE "LOCAL COMMERCE"
BECAUSE UNDER A GIVEN SET OF CIRCUMSTANCES, AS IN THE LEHIGH VALLEY
CASE, A PARTICULAR EXERTION OF STATE POWER IS NOT RENDERED INVALID BY
THE COMMERCE CLAUSE IS TO INDULGE IN A FICTION.  ESPECIALLY IN THE
DISPOSITION OF CONSTITUTIONAL ISSUES ARE LEGAL FICTIONS HAZARDOUS,
BECAUSE OF THE RISK OF CONFOUNDING USERS AND NOT MERELY READERS.  THE
KIND OF CONFUSION TO WHICH THE LEHIGH VALLEY OPINION HAS GIVEN RISE
RESULTS FROM EMPLOYING A NEEDLESS FICTION - CALLING COMMERCE LOCAL
WHICH IN FACT IS INTERSTATE - AS A MANNER OF STATING THAT A PARTICULAR
EXERCISE OF STATE POWER IS NOT INVALID EVEN THOUGH IT AFFECTS
INTERSTATE COMMERCE.  THE DIFFICULT TASK OF DETERMINING WHETHER A PHASE
OF COMMERCE, CONCEDEDLY INTERSTATE, IS SUBJECT TO A PARTICULAR
INCIDENCE OF STATE REGULATION, THROUGH TAXATION OR OTHERWISE, IS NOT
LESSENED BY CALLING INTERSTATE COMMERCE LOCAL COMMERCE IN ORDER TO
SUSTAIN ITS LOCAL CONTROL.  TO STATE THIS PERSISTENT AND PROTEAN
PROBLEM OF OUR FEDERALISM IN THE FORM OF A QUESTION-BEGGING FICTION, IS
NOT TO ANSWER IT. 

THIS BRINGS US TO THE FACTS OF THE CASE BEFORE US.  NEW YORK CLAIMS
THE RIGHT TO TAX THE GROSS RECEIPTS FROM TRANSPORTATION WHICH TRAVERSES
NEW JERSEY AND PENNSYLVANIA AS WELL AS NEW YORK.  TO SAY THAT THIS
COMMERCE IS CONFINED TO NEW YORK IS TO INDULGE IN PURE FICTION.  TO DO
SO, DOES NOT ELIMINATE THE RELATION OF PENNSYLVANIA AND NEW JERSEY TO
THE TRANSACTIONS NOR ELIMINATE THE BENEFITS WHICH THOSE TWO STATES
CONFER UPON THE PORTIONS OF THE TRANSPORTATION WITHIN THEIR BORDERS. 
NEITHER THEIR INTERESTS NOR THEIR RESPONSIBILITIES ARE EVAPORATED BY
THE VERBAL DEVICE OF ATTRIBUTING THE ENTIRE TRANSPORTATION TO NEW
YORK.  THERE IS NO SUGGESTION HERE THAT THE INTERSTATE ROUTES WERE
UTILIZED AS A MEANS OF AVOIDING EVEN IN PART NEW YORK'S TAXATION. 
COMPARE, E.G., EICHHOLZ V. PUBLIC SERVICE COMMISSION OF MISSOURI, 306
U.S. 268, AND RYAN V. PENNSYLVANIA PUBLIC UTILITY COMMISSION, 143 PA.
SUPER.  517.  WE ARE NOT DEALING WITH A NECESSARY DEVIATION OR A
CALCULATED DETOUR.  NOR IS NEW YORK SEEKING TO TAX TRANSACTIONS
PHYSICALLY OUTSIDE ITS BORDERS BUT SO TRIFLING IN QUANTITY TO THE NEW
YORK COMMERCE, OF WHICH THEY FORM A PART, AS TO BE CONSTITUTIONALLY
INSIGNIFICANT.  NEW YORK SEEKS TO TAX THE TOTAL RECEIPTS FROM
TRANSPORTATION OF WHICH NEARLY 43% OF THE MILEAGE LAY IN NEW JERSEY AND
PENNSYLVANIA.  TRANSACTIONS WHICH TO SUCH A SUBSTANTIAL EXTENT ACTUALLY
TAKE PLACE IN NEW JERSEY AND PENNSYLVANIA CANNOT BE DEEMED LEGALLY TO
TAKE PLACE IN NEW YORK. 

OF COURSE WE ARE DEALING HERE WITH "INTERSTATE COMMERCE."  OF COURSE
CONGRESS DID NOT EXCEED ITS POWER TO REGULATE SUCH COMMERCE WHEN IN THE
MOTOR CARRIER ACT OF 1935 IT EXPLICITLY INCLUDED COMMERCE SUCH AS THAT
BEFORE US WITHIN THE SCOPE OF THAT ACT: "THE TERM 'INTERSTATE COMMERCE'
MEANS COMMERCE BETWEEN ANY PLACE IN A STATE AND ANY PLACE IN ANOTHER
STATE OR BETWEEN PLACES IN THE SAME STATE THROUGH ANOTHER STATE,
WHETHER SUCH COMMERCE MOVES WHOLLY BY MOTOR VEHICLE OR PARTLY BY MOTOR
VEHICLE AND PARTLY BY RAIL, EXPRESS, OR WATER."  49 STAT. 543, 544, 49
U.S.C. SEC. 303(A)(10).  IN A CASE LIKE THIS NOTHING IS GAINED, AND
CLARITY IS LOST, BY NOT STARTING WITH RECOGNITION OF THE FACT THAT IT
IS INTERSTATE COMMERCE WHICH THE STATE IS SEEKING TO REACH AND CANDIDLY
FACING THE REAL QUESTION WHETHER WHAT THE STATE IS EXACTING IS A
CONSTITUTIONALLY FAIR DEMAND BY THE STATE FOR THAT ASPECT OF THE
INTERSTATE COMMERCE TO WHICH THE STATE BEARS A SPECIAL RELATION.  SEE
UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, AND BOB-LO EXCURSION CO.
V. MICHIGAN, 333 U.S. 28.  SUCH BEING THE REAL ISSUE INEVITABLY "NICE
DISTINCTIONS ARE TO BE EXPECTED."  GALVESTON, HARRISBURG AND SAN
ANTONIO R. CO. V. TEXAS, SUPRA, AT 225.  BUT SUCH DISTINCTIONS WOULD BE
CLEARER AND MORE REASONABLY MADE IF, FOR INSTANCE, A FLAT PRIVILEGE TAX
APPLIED BY A MUNICIPALITY TO AN EXPRESS COMPANY SHIPPING PACKAGES
BETWEEN POINTS WITHIN A STATE, BUT OVER ROUTES WHICH FOR A VERY SHORT
DISTANCE PASS OUT OF THE STATE, HAD BEEN FRANKLY SUSTAINED ON THE
GROUND THAT THE TAX DID NOT BURDEN INTERSTATE COMMERCE IN THE
CONSTITUTIONAL SENSE RATHER THAN ON THE GROUND THAT IT WAS NOT
INTERSTATE COMMERCE.  COMPARE EWING V. LEAVENWORTH, SUPRA, WITH
KIRMEYER V. KANSAS, 236 U.S. 568.  AGAIN, IT WOULD HAVE MADE FOR A LESS
DIALECTICAL, IF NOT MORE COHERENT, DEVELOPMENT OF THE LAW TO SUSTAIN A
NEW YORK GROSS RECEIPTS TAX ON A NEW YORK CORPORATION, ENGAGED IN
TOWING VESSELS BETWEEN PORTS IN THE STATE OF NEW YORK ON THE HUDSON
RIVER TRAVERSING THE NEW JERSEY SIDE BUT NOT TOUCHING ITS SHORE, ON THE
GROUND THAT UPON THE FACTS OF THAT CASE, AND MORE PARTICULARLY NEW
JERSEY'S RELATION TO THE TRANSACTIONS (VERY DIFFERENT FROM THOSE NOW
BEFORE US), NEW YORK WAS NOT BURDENING INTERSTATE COMMERCE, RATHER THAN
TO HOLD THAT "TRANSPORTATION BETWEEN THE PORTS OF THE STATE IS NOT
INTERSTATE COMMERCE, EXCLUDED FROM THE TAXING POWER OF THE STATE,
BECAUSE AS TO A PART OF THE JOURNEY THE COURSE IS OVER THE TERRITORY OF
ANOTHER STATE."  COMPARE NEW YORK EX REL. CORNELL STEAMBOAT CO. V.
SOHMER, SUPRA, AT 560, WITH CORNELL STEAMBOAT CO. V. UNITED STATES, 321
U.S. 634. 

IT IS SIGNIFICANT THAT, SO FAR AS WE ARE ADVISED, NO STATE OTHER THAN
NEW YORK SEEKS TO TAX THE UNAPPORTIONED RECEIPTS FROM TRANSPORTATION
GOING THROUGH MORE THAN ONE STATE, (EXCEPT TO AN EXTENT SO
INSIGNIFICANT AS TO BE DISREGARDED), MERELY BECAUSE SUCH TRANSPORTATION
RETURNS TO THE STATE OF ITS ORIGIN.  IF NEW JERSEY AND PENNSYLVANIA
COULD CLAIM THEIR RIGHT TO MAKE APPROPRIATELY APPORTIONED CLAIMS
AGAINST THAT SUBSTANTIAL PART OF THE BUSINESS OF APPELLANT TO WHICH
THEY AFFORD PROTECTION, WE DO NOT SEE HOW ON PRINCIPLE AND IN PRECEDENT
SUCH A CLAIM COULD BE DENIED.  THIS BEING SO, TO ALLOW NEW YORK TO
IMPOSE A TAX ON THE GROSS RECEIPTS FOR THE ENTIRE MILEAGE - ON THE
57.47% WITHIN NEW YORK AS WELL AS THE 42.53% WITHOUT - WOULD SUBJECT
INTERSTATE COMMERCE TO THE UNFAIR BURDEN OF BEING TAXED AS TO PORTIONS
OF ITS REVENUE BY STATES WHICH GIVE PROTECTION TO THOSE PORTIONS, AS
WELL AS TO A STATE WHICH DOES NOT.  THIS IS NOT TO CONJURE UP REMOTE
POSSIBILITIES.  PENNSYLVANIA'S CLAIM TO TAX A PORTION OF APPELLANT'S
GROSS RECEIPTS FROM THE TRANSPORTATION WHICH NEW YORK HAS TAXED IS NOT
A MATTER OF SPECULATION.  APPARENTLY, PENNSYLVANIA HAS SO TAXED SINCE
1931.  PENN.  LAWS 1931, NO. 255, AS AMENDED BY ACT OF JUNE 5, 1947,
NO. 204.  NEW YORK DOES NOT DENY THAT PENNSYLVANIA IN FACT SO TAXES,
THOUGH THERE IS DISPUTE AS TO THE MEANING OF THE FORMULA BY WHICH SHE
DOES SO.  BUT EVEN IF NEITHER PENNSYLVANIA NOR NEW JERSEY SOUGHT TO TAX
THEIR PROPORTIONATE SHARE OF THE REVENUE FROM THIS TRANSPORTATION, SUCH
ABSTENTION WOULD NOT JUSTIFY THE TAXING BY NEW YORK OF THE ENTIRE
REVENUE.  FREEMAN V. HEWIT, 329 U.S. 249, 256.  BY ITS VERY NATURE AN
UNAPPORTIONED GROSS RECEIPTS TAX MAKES INTERSTATE TRANSPORTATION BEAR
MORE THAN "A FAIR SHARE OF THE COST OF THE LOCAL GOVERNMENT WHOSE
PROTECTION IT ENJOYS."  ID. AT 253.  THE VICE OF SUCH A TAX IS THAT IT
LAYS "A DIRECT BURDEN UPON EVERY TRANSACTION IN (INTERSTATE) COMMERCE
BY WITHHOLDING, FOR THE USE OF THE STATE, A PART OF EVERY DOLLAR
RECEIVED IN SUCH TRANSACTIONS."  CREW LEVICK CO. V. PENNSYLVANIA, 245
U.S. 292, 297; SEE ADAMS MANUFACTURING CO. V. STOREN, 304 U.S. 307,
311; FREEMAN V. HEWIT, SUPRA; JOSEPH V. CARTER AND WEEKES STEVEDORING
CO., 330 U.S. 422. 

HOWEVER, WHILE THE NEW YORK COURTS HAVE CONSTRUED THE STATUTE AS
LEVYING AN UNAPPORTIONED GROSS RECEIPTS TAX ON THIS TRANSACTION, THE
ENTIRE TAX NEED NOT FALL.  THE TAX MAY BE "FAIRLY APPORTIONED" TO THE
"BUSINESS DONE WITHIN THE STATE BY A FAIR METHOD OF APPORTIONMENT." 
WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 255.  THERE IS
NO DISPUTE AS TO FEASIBILITY IN APPORTIONING THIS TAX.  ON THE RECORD
BEFORE US THE TAX MAY CONSTITUTIONALLY BE SUSTAINED ON THE RECEIPTS
FROM THE TRANSPORTATION APPORTIONED AS TO THE MILEAGE WITHIN THE
STATE.  SEE RATTERMAN V. WESTERN UNION TELEGRAPH CO., 127 U.S. 411, 427
28.  THERE IS NO QUESTION AS TO THE FAIRNESS OF THE SUGGESTED METHOD OF
APPORTIONMENT.  COMPARE MAINE V. GRAND TRUNK R. CO., SUPRA, WITH NEW
JERSEY BELL TELEPHONE CO. V. STATE BOARD OF TAXES AND ASSESSMENTS, 280
U.S. 338; CF. WALLACE V. HINES, 253 U.S. 66.  BOTH APPELLANT AND
APPELLEE HAVE INDICATED HERE THAT, AS A MATTER OF CONSTRUCTION, THE
STATUTE UNDER CONSIDERATION PERMITS SUCH APPORTIONMENT, BUT THAT IS A
MATTER FOR THE NEW YORK COURTS TO DETERMINE. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

A PRECISE DELINEATION OF THE CONTROLLING FACTS IS ESSENTIAL TO A
DETERMINATION OF THE CONSTITUTIONAL ISSUE INVOLVED IN THIS APPEAL. 
THAT ISSUE CONCERNS AN ALLEGED CONFLICT BETWEEN THE COMMERCE CLAUSE OF
THE CONSTITUTION OF THE UNITED STATES AND A NEW YORK STATUTE TAXING THE
GROSS INCOME OF UTILITIES DOING BUSINESS WITHIN THAT STATE. 
SPECIFICALLY, THE PROBLEM RELATES TO AN APPLICATION OF THE TAX TO THE
GROSS RECEIPTS FROM BUS TRANSPORTATION ORIGINATING AND TERMINATING IN
NEW YORK BUT PASSING THROUGH PARTS OF NEW JERSEY AND PENNSYLVANIA. 

THE FURNISHING OF UTILITY SERVICES."  IT IMPOSES A TAX "EQUAL TO TWO
PER CENTUM OF ITS GROSS INCOME  ...  UPON EVERY UTILITY DOING BUSINESS
IN THIS STATE  ...  IN ADDITION TO ANY AND ALL OTHER TAXES AND FEES
IMPOSED BY ANY OTHER PROVISION OF LAW FOR THE SAME PERIOD."  N1  THE
WORD "UTILITY" IS DEFINED TO INCLUDE EVERY PERSON "SUBJECT TO THE
SUPERVISION OF EITHER DIVISION OF THE STATE DEPARTMENT OF PUBLIC
SERVICE" FN2  AND THE WORDS "GROSS INCOME" ARE DEFINED TO INCLUDE
"RECEIPTS RECEIVED IN OR BY REASON OF ANY SALE  ...  MADE OR SERVICE
RENDERED FOR ULTIMATE CONSUMPTION OR USE BY THE PURCHASER IN THIS STATE
...  "  FN3 

APPELLANT IS A NEW YORK CORPORATION ENGAGED IN BUSINESS AS A COMMON
CARRIER BY OMNIBUS.  IT OPERATES ITS BUSES BOTH WITHIN AND WITHOUT NEW
YORK AND IS SUBJECT TO THE SUPERVISION OF THE NEW YORK PUBLIC SERVICE
COMMISSION.  HENCE IT IS A UTILITY WITHIN THE MEANING OF SEC. 186-A. 

APPELLANT OPERATES BUSES OVER NUMEROUS ROUTES FROM NEW YORK CITY TO
BUFFALO AND OTHER CITIES IN UPSTATE NEW YORK, ROUTES WHICH CUT ACROSS
ONES POSSIBLE.  THE CONTROVERSY IS CONCERNED ONLY WITH THE TAXATION
UNDER SEC. 186-A OF THAT PART OF APPELLANT'S RECEIPTS DERIVED FROM
CONTINUOUS TRANSPORTATION OF PASSENGERS BETWEEN NEW YORK POINTS OVER
SUCH ROUTES.  APPLICATION OF THE TAX TO THE RECEIPTS FROM
TRANSPORTATION MOVING SOLELY WITHIN NEW YORK IS NOT CONTESTED; AND
RECEIPTS FROM TRANSPORTATION BETWEEN NEW YORK POINTS AND OUT-OF-STATE
POINTS HAVE NOT BEEN TAXED. 

AT THE HEARING BEFORE THE STATE TAX COMMISSION RELATIVE TO THE
CONTESTED TAX, THE PARTIES AGREED THAT THE EVIDENCE WOULD BE LIMITED TO
THE OPERATIONS OVER THESE ROUTES DURING JULY, 1937, AND THAT THE
CONCLUSIONS TO BE DRAWN FROM SUCH EVIDENCE WOULD BE APPLICABLE TO ALL
MONTHS SUBSEQUENT THERETO.  THE EVIDENCE WHICH WAS INTRODUCED REVEALED
THAT 57.47% OF THE TOTAL MILEAGE OF THE JOURNEYS OVER THE ROUTES IN
QUESTION WAS TRAVERSED WITHIN NEW YORK, WHILE 42.53% THEREOF WAS
TRAVERSED WITHIN NEW JERSEY AND PENNSYLVANIA.  ALTHOUGH SOME TRANSFERS
AND STOPOVERS IN NEW JERSEY AND PENNSYLVANIA WERE INDICATED, THERE WAS
NO SHOWING THAT THEY WERE OF A SUBSTANTIAL NUMBER OR THAT THEY WERE OF
SUCH A NATURE AS TO BREAK THE TRANSPORTATION BETWEEN NEW YORK POINTS
INTO TWO UNRELATED TRIPS.  THE LEGAL ISSUES IN THE CASE HAVE BEEN
PREDICATED AT ALL TIMES UPON THE EVIDENCE THAT THERE WAS CONTINUOUS
TRANSPORTATION OF PASSENGERS BETWEEN NEW YORK POINTS ON SINGLE TICKETS
AND UPON THE EVIDENCE AS TO THE PERCENTAGE OF THE MILEAGE TRAVERSED
WITHIN AND WITHOUT NEW YORK. 

THE STATE TAX COMMISSION CONSTRUED SEC. 186-A AS APPLICABLE TO
APPELLANT'S TOTAL RECEIPTS FROM THE TRANSPORTATION IN ISSUE, PRORATION
OF THE RECEIPTS IN ACCORDANCE WITH THE MILEAGE TRAVERSED IN NEW YORK
BEING CONSIDERED UNNECESSARY.  SO CONSTRUED, SEC. 186-A WAS HELD NOT TO
CONFLICT WITH THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  THIS
RULING WAS SUSTAINED BY THE NEW YORK COURTS. 

THE CRUCIAL FACT, FROM THE CONSTITUTIONAL STANDPOINT, IS THE DUAL AND
UNIQUE CHARACTER OF TRANSPORTATION BETWEEN TERMINI IN THE SAME STATE
WHERE THE TERRITORY OF ANOTHER STATE IS TRAVERSED EN ROUTE.  SUCH
TRANSPORTATION HAS BOTH INTERSTATE AND INTRASTATE FEATURES.  FROM THE
STANDPOINT OF PHYSICAL MOVEMENT, THERE IS A CROSSING OF STATE LINES AND
A JOURNEY OVER TERRITORY BELONGING TO MORE STATES THAN ONE - A MOVEMENT
THAT IS UNDENIABLY INTERSTATE.  AT THE SAME TIME, HOWEVER, THE BUSINESS
OF TRANSPORTING PASSENGERS OR FREIGHT BETWEEN POINTS IN THE SAME STATE
IS ESSENTIALLY LOCAL IN CHARACTER DESPITE THE INTERSTATE MOVEMENT.  ALL
OF THE ESSENTIAL ELEMENTS OF THE COMMERCIAL INTERCOURSE REPRESENTED BY
THE CONTINUOUS TRANSPORTATION ARE RESIDENT IN THAT ONE STATE.  THE
PARTIES TO THE TRANSPORTATION CONTRACT, THE MAKING OF THE CONTRACT AND
THE SERVICE WHICH IS THE SUBJECT OF THE CONTRACT ARE IDENTIFIED
PREEMINENTLY WITH THAT STATE.  THE WHOLE PURPOSE OF THE TRANSACTION IS
TO TRANSPORT THE PASSENGERS OR FREIGHT TO A POINT WITHIN THE SAME STATE
AS THE POINT OF ORIGIN.  PASSAGE THROUGH ANOTHER STATE IS A MERE
GEOGRAPHIC INCIDENT IN THE CONSUMMATION OF THIS LOCAL TRANSACTION. 
WHILE THAT PASSAGE MAY HAVE INTERSTATE SIGNIFICANCE FOR OTHER PURPOSES,
IT CANNOT OPERATE BY ITSELF TO MAKE INTERSTATE THE COMMERCIAL
RELATIONSHIP UNDERLYING THE CONTINUOUS TRANSPORTATION. 

AND SO WITHIN THE NARROW COMPASS OF THIS PARTICULAR TYPE OF
TRANSPORTATION IT IS SOMETHING MORE THAN A FICTION TO SAY THAT BOTH
INTERSTATE AND INTRASTATE FEATURES ARE PRESENT.  CF. BOB-LO EXCURSION
CO. V. MICHIGAN, 333 U.S. 28.  IT IS A RECOGNITION OF THE HARD
REALITIES OF THE SITUATION.  IT IS A REALIZATION THAT TRANSPORTING
PERSONS BETWEEN POINTS IN THE SAME STATE IS A BUSINESS LOCAL IN ALL ITS
COMMERCIAL CONNOTATIONS, EVEN THOUGH THERE IS A PHYSICAL MOVEMENT OF AN
INTERSTATE CHARACTER.  DUE RESPECT FOR MR. JUSTICE HOLMES' ADMONITION
THAT COMMERCE AMONG THE STATES IS A PRACTICAL RATHER THAN A TECHNICAL
LEGAL CONCEPTION, SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 398,
FORBIDS AN INDISCRIMINATE APPLICATION OF THE INTERSTATE LABEL SIMPLY
BECAUSE STATE LINES ARE CROSSED IN THE COURSE OF A PARTICULAR
BUSINESS.  WHERE LOCAL ELEMENTS REMAIN INTACT DESPITE THE INTERSTATE
MOVEMENT IT IS OF THE ESSENCE OF PRACTICALITY TO GIVE RECOGNITION TO
THAT FACT.  SUCH IS THE SITUATION IN THIS CASE. 

THIS COURT HAS LONG RECOGNIZED THAT THIS TYPE OF TRANSPORTATION,
UNLIKE OTHER TYPES, IS PHYSICALLY INTERSTATE AND COMMERCIALLY LOCAL. 
AND IT HAS GIVEN LIFE TO THAT DISTINCTION SO THAT THE FEDERAL POWER
OVER INTERSTATE COMMERCE MIGHT REMAIN EFFECTIVE WITHOUT DETRACTING
UNNECESSARILY FROM THE SCOPE OF STATE POWER OVER THOSE ENGAGED IN THIS
NARROW TRANSPORTATION SPHERE.  WHERE THE PROPOSED STATE ACTION IS SUCH
AS TO CREATE AN ACTUAL OR POTENTIAL CONFLICT WITH THE FEDERAL AUTHORITY
ARISING OUT OF THE PHYSICAL MOVEMENT ACROSS STATE LINES, THE COURT HAS
EMPHASIZED THE INTERSTATE ASPECT OF THE TRANSPORTATION IN MAKING THE
FEDERAL POWER SUPREME.  THUS IN HANLEY V. KANSAS CITY SOUTHERN R. CO.,
187 U.S. 617, CONGRESS WAS FOUND TO HAVE THE SOLE POWER TO FIX THE
RATES FOR TRANSPORTATION OF FREIGHT BY RAIL BETWEEN TWO POINTS IN
ARKANSAS OVER A ROUTE PASSING THROUGH A PART OF THE INDIAN TERRITORY;
ARKANSAS WAS ACCORDINGLY PRECLUDED FROM THE EXERCISE OF ITS RATE-MAKING
AUTHORITY IN THIS INSTANCE.  SUCH TRANSPORTATION WAS SAID TO BE
INTERSTATE, STRESS BEING LAID UPON THE PHYSICAL MOVEMENT OF THE FREIGHT
ACROSS AND BEYOND THE ARKANSAS BORDER.  SEE ALSO MISSOURI PACIFIC R.
CO. V. STROUD, 267 U.S. 404; WESTERN UNION TEL. CO. V. SPEIGHT, 254
U.S. 17; COMPARE WILMINGTON TRANSPORTATION CO. V. RAILROAD COMMISSION,
236 U.S. 151. 

BUT WHERE THE IMPACT OF STATE ACTION IS SUCH AS NOT TO ENDANGER OR
EMBARRASS FEDERAL CONTROL OVER INTERSTATE MOVEMENTS, THE COURT HAS
RELIED UPON THE LOCAL ELEMENTS OF THE TRANSPORTATION IN SANCTIONING THE
IMPOSITION OF STATE AUTHORITY.  THIS HAS OCCURRED IN THE SETTING OF
STATE GROSS RECEIPTS TAXES AND CITY LICENSE TAXES LEVIED ON THOSE
ENGAGED IN THE TYPE OF TRANSPORTATION HERE INVOLVED.  LEHIGH VALLEY R.
CO. V. PENNSYLVANIA, 145 U.S. 192; UNITED STATES EXPRESS CO. V.
MINNESOTA, 223 U.S. 335; EWING V. LEAVENWORTH, 226 U.S. 464; CORNELL
STEAMBOAT CO. V. SOHMER, 235 U.S. 549.  IN THOSE CASES THE TAXES WERE
NON-DISCRIMINATORY IN NATURE AND INTERFERED IN NO WAY WITH ANY
REGULATIONS CONGRESS MIGHT WISH TO IMPOSE BY REASON OF THE MOVEMENTS
ACROSS STATE LINES.  THE THRUST OF THE TAXES AFFECTED ONLY THE BUSINESS
OF TRANSPORTING ARTICLES BETWEEN TWO POINTS IN THE SAME STATE AND THE
RECEIPTS DERIVED THEREFROM.  THAT BUSINESS WAS CONSIDERED TO BE OF A
LOCAL VARIETY AND A CLEAR REJECTION WAS MADE OF THE CONTENTION THAT
"THE MERE PASSAGE OVER THE SOIL OF ANOTHER STATE RENDERS THAT BUSINESS
FOREIGN, WHICH IS DOMESTIC."  LEHIGH VALLEY R. CO. V. PENNSYLVANIA,
SUPRA, 202.  AS STATED IN CORNELL STEAMBOAT CO. V. SOHMER, SUPRA, 560,
"BUT TRANSPORTATION BETWEEN THE PORTS OF THE STATE IS NOT INTERSTATE
COMMERCE, EXCLUDED FROM THE TAXING POWER OF THE STATE, BECAUSE AS TO A
PART OF THE JOURNEY THE COURSE IS OVER THE TERRITORY OF ANOTHER
STATE." 

ROOM HAS THUS BEEN MADE IN OUR FEDERAL SYSTEM FOR A REASONABLE
ACCOMMODATION OF THE FEDERAL AND STATE INTERESTS IN REGULATING AND
TAXING THOSE ENGAGED IN THIS UNIQUE TRANSPORTATION.  SEE CORNELL
STEAMBOAT CO. V. UNITED STATES, 321 U.S. 634, 639, NOTE 4.  IT IS AN
ACCOMMODATION DESIGNED TO PROTECT THE NATIONAL INTEREST IN UNIFORM
REGULATION OF INTERSTATE MOVEMENTS AS WELL AS TO SAFEGUARD THE STATES'
LEGITIMATE INTEREST IN PLACING A FAIR SHARE OF THE LOCAL BURDENS ON
THOSE DOING LOCAL BUSINESS.  FN4 

THE PROPER ANSWER TO THE ISSUE IN THIS CASE IS DICTATED IN LARGE PART
BY THE LEHIGH VALLEY LINE OF DECISIONS.  THOSE PRIOR CASES ARE NOT TO
BE DISMISSED AS DIALECTICAL EXERCISES IN THE LAW OF INTERSTATE
COMMERCE.  THEY REPRESENT A REALISTIC APPRECIATION OF THE FACT THAT THE
BUSINESS FROM WHICH THE GROSS RECEIPTS IN ISSUE WERE DERIVED IS LOCAL
IN NATURE.  AND SEC. 186-A OF THE NEW YORK TAX LAW, IN TAXING THOSE
GROSS RECEIPTS, IS CONSISTENT WITH THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  THIS TAX IS GROUNDED ON A BASE DIFFERENT FROM THAT WHICH
JUSTIFIES THE EXERCISE OF FEDERAL POWER, MAKING A CONFLICT BETWEEN
FEDERAL AND STATE AUTHORITY IMPOSSIBLE.  IN EFFECT, SEC. 186-A LEVIES A
NON-DISCRIMINATORY TAX ON ALL COMPANIES FURNISHING CONTINUOUS
TRANSPORTATION SERVICE BETWEEN CITIES IN THAT STATE.  THE TAX IS IN
TERMS OF A PERCENTAGE OF THE GROSS RECEIPTS FROM THAT SERVICE. 
ENGAGING IN SUCH TRANSPORTATION SERVICE IS A LOCAL BUSINESS, EVEN
THOUGH SOME OF THE ROUTES CROSS PARTS OF OTHER STATES.  AND TAXING THE
GROSS RECEIPTS FROM THIS SERVICE IS WELL WITHIN THE CONSTITUTIONAL
POWER OF NEW YORK SO FAR AS THE COMMERCE CLAUSE IS CONCERNED.  FN5 

IN LIGHT OF THE PAST DECISIONS OF THIS COURT, THE ONLY NOVEL QUESTION
HERE PRESENTED IS WHETHER NEW YORK MUST LIMIT ITS TAX TO THAT
PROPORTION OF THE RECEIPTS WHICH CORRESPONDS TO THE PROPORTION OF THE
MILEAGE TRAVERSED WITHIN THAT STATE ON THE TRIPS IN ISSUE, I.E. 57.47%.
LEHIGH VALLEY R. CO. V. PENNSYLVANIA, SUPRA, AND UNITED STATES EXPRESS
CO. V. MINNESOTA, SUPRA, DID NOT INVOLVE THIS QUESTION SINCE THE GROSS
RECEIPTS TAXES HAD THERE BEEN PRORATED BY THE RESPECTIVE STATES BEFORE
REACHING THIS COURT, AND EWING V. LEAVENWORTH, SUPRA, WAS CONCERNED
ONLY WITH A FLAT LICENSE TAX.  WHILE CORNELL STEAMBOAT CO. V. SOHMER,
SUPRA, DID INVOLVE AN UNAPPORTIONED GROSS RECEIPTS TAX, THE FACTS WERE
SUCH AS TO MAKE IT IMPOSSIBLE TO DETERMINE WHAT PROPORTION OF THE
JOURNEYS TOOK PLACE OUTSIDE NEW YORK; THE PRECISE ISSUE WAS THUS
UNRESOLVED. 

THE RULE REQUIRING APPORTIONMENT OF GROSS RECEIPTS TAXES TO THE
ACTIVITIES CARRIED ON WITHIN A STATE IS ONE THAT IS NECESSARILY
PREDICATED UPON THE EXISTENCE OF SOME INTERSTATE ACTIVITIES WHICH THE
COMMERCE CLAUSE PLACES BEYOND THE TAXING POWER OF THE STATE.  SEE
RATTERMAN V. WESTERN UNION TEL. CO., 127 U.S. 411; WISCONSIN & M.R. CO.
V. POWERS, 191 U.S. 379.  IT IS DESIGNED TO PREVENT THE LEVYING OF SUCH
TAXES AS WILL DISCRIMINATE AGAINST OR PROHIBIT THE INTERSTATE
ACTIVITIES OR WILL PLACE THE INTERSTATE COMMERCE AT A DISADVANTAGE
RELATIVE TO LOCAL COMMERCE.  BUT THIS RULE OBVIOUSLY IS INAPPLICABLE
WHERE THE TAX IS NOT LEVIED ON WHAT IS APPROPRIATELY LABELLED
INTERSTATE COMMERCE.  AND AS WE HAVE SEEN, NEW YORK HERE HAS LEVIED A
TAX SOLELY UPON THE LOCAL BUSINESS OF TRANSPORTING PASSENGERS BETWEEN
POINTS IN THAT STATE, WHICH CONSTITUTES THE FURNISHING OF UTILITIES
WITHIN THE MEANING OF THE NEW YORK TAX LAW.  THE FACT THAT 42.53% OF
THE TRANSPORTATION OCCURS OUTSIDE NEW YORK DOES NOT MAKE THAT BUSINESS
ANY LESS LOCAL.  FROM THE COMMERCIAL STANDPOINT, THE OUT-OF-STATE
SEGMENT OF THE JOURNEY RETAINS ITS POSITION AS AN INTEGRAL PART OF THE
CONTINUOUS LOCAL TRANSACTION.  THE PROPORTION OF THE TRANSPORTATION
ACTUALLY TAKING PLACE WITHIN OR WITHOUT NEW YORK THUS HAS NO COMMERCE
CLAUSE SIGNIFICANCE UNDER THESE CIRCUMSTANCES.  INASMUCH AS THE
RESTRICTIVE FORCE OF THE COMMERCE CLAUSE IS NON-EFFECTIVE, NEW YORK IS
ENTITLED TO TAX THE TOTAL GROSS RECEIPTS FROM THIS LOCAL COMMERCE. 

THIS RESULT DOES NOT PERMIT OTHER STATES, WITHIN THE FRAMEWORK OF THE
COMMERCE CLAUSE, TO TAX THE LOCAL BUSINESS OF TRANSPORTING PASSENGERS
BETWEEN NEW YORK POINTS.  WHAT IS LOCAL BUSINESS AS TO NEW YORK IS NOT
LOCAL BUSINESS AS TO NEW JERSEY OR PENNSYLVANIA.  THE ELEMENTS WHICH
JUSTIFY NEW YORK'S UNAPPORTIONED TAX EXIST ONLY IN THAT STATE.  IF NEW
JERSEY OR PENNSYLVANIA WERE TO TAX A PORTION OF APPELLANT'S GROSS
RECEIPTS FROM THE TRANSPORTATION IN ISSUE, SUCH TAX WOULD INVOLVE QUITE
DIFFERENT CONSTITUTIONAL CONSIDERATIONS THAN THOSE WHICH SUSTAIN THE
NEW YORK TAX.  SINCE NEW JERSEY AND PENNSYLVANIA WOULD HAVE AN INTEREST
IN THE SITUATION BECAUSE OF THE PHYSICAL MOVEMENTS OCCURRING WITHIN
THEIR BORDERS, CONCENTRATION WOULD HAVE TO BE PLACED UPON THE
INTERSTATE ASPECT OF THE TRANSPORTATION.  THE PROBLEM WOULD THEN BE
WHETHER THESE STATES COULD CONSTITUTIONALLY TAX THE PORTION OF THE
GROSS RECEIPTS DERIVED FROM THE MILEAGE TRAVERSED THEREIN.  IF SUCH
TAXES WERE SUSTAINED, THE RESULTING MULTIPLE BURDEN ON THE GROSS
RECEIPTS WOULD SIMPLY BE A NATURAL CONSEQUENCE OF CONDUCTING A LOCAL
BUSINESS IN SUCH A MANNER AS TO USE THE FACILITIES OF MORE STATES THAN
ONE.  BUT THAT TYPE OF MULTIPLE BURDEN IS NOT OUTLAWED BY THE COMMERCE
CLAUSE.  NOR DOES THE POSSIBILITY OF SUCH A BURDEN MAKE THE BUSINESS OF
TRANSPORTING PERSONS BETWEEN POINTS IN NEW YORK ANY LESS LOCAL IN
NATURE. 

I WOULD THEREFORE AFFIRM THE JUDGMENT BELOW. 

FN1  NEW YORK TAX LAW, SEC. 186-A, SUBD. 1. 

FN2  NEW YORK TAX LAW, SEC. 186-A, SUBD. 2(A). 

FN3  NEW YORK TAX LAW, SEC. 186-A, SUBD. 2(C). 

FN4  SECTION 303(10) OF PART II OF THE INTERSTATE COMMERCE ACT, 49
U.S.C. SEC. 303(10), DEFINES INTERSTATE COMMERCE, FOR FEDERAL
REGULATORY PURPOSES, TO INCLUDE COMMERCE "BETWEEN PLACES IN THE SAME
STATE THROUGH ANOTHER STATE."  BUT SEC. 302(B) OF THE SAME ACT, 49
U.S.C. SEC. 302(B), STATES THAT NOTHING THEREIN "SHALL BE CONSTRUED TO
AFFECT THE POWERS OF TAXATION OF THE SEVERAL STATES."  THIS IS A
CONGRESSIONAL RECOGNITION OF THE ACCOMMODATION THAT EXISTS IN REGARD TO
THE FEDERAL AND STATE INTERESTS. 

SEE, IN GENERAL, KAUPER, "STATE REGULATION OF INTERSTATE MOTOR
CARRIERS," 31 MICH. L. REV. 1097, 1105-1107; TARNAY, "METHODS FOR
DIFFERENTIATING INTERSTATE TRANSPORTATION FROM INTRASTATE
TRANSPORTATION," 6 GEO. WASH. L. REV. 553, 633-637; GANIT, THE COMMERCE
CLAUSE OF THE UNITED STATES CONSTITUTION, SEC. 62(D), (1932). 

FN5  THE PROPER RESULT IN THIS CASE IS APTLY PARAPHRASED IN LEHIGH
VALLEY R. CO. V. PENNSYLVANIA, 145 U.S. 192, 201-202:  "SO AS TO THE
TRAFFIC OF THE ERIE RAILWAY BETWEEN THE CITIES OF NEW YORK AND BUFFALO,
WE DO NOT UNDERSTAND THAT THAT COMPANY ESCAPES TAXATION IN RESPECT OF
THAT PART OF ITS BUSINESS BECAUSE SOME MILES OF ITS ROAD ARE IN
PENNSYLVANIA, WHILE THE NEW YORK CENTRAL IS TAXED AS TO ITS BUSINESS
BETWEEN THE SAME PLACES, BECAUSE ITS RAILS ARE WHOLLY WITHIN THE STATE
OF NEW YORK." 
..END :












WADE V. MAYO, 334 U.S. 672 


NO. 40.  SUBMITTED OCTOBER 13, 1947.  - RESUBMITTED MARCH 9, 1948.  -
DECIDED JUNE 14, 1948.  - 158 F.2D 614, REVERSED. 


1.  IMPRISONED UNDER A FLORIDA STATE COURT CONVICTION OF A NON-CAPITAL
OFFENSE, PETITIONER SOUGHT RELEASE BY HABEAS CORPUS IN A STATE COURT,
CLAIMING DENIAL OF HIS FEDERAL CONSTITUTIONAL RIGHT TO COUNSEL.  AN
APPEAL FROM A JUDGMENT DENYING RELIEF WAS DISMISSED BY THE STATE
SUPREME COURT ON THE MERITS.  AT THE TIME OF THE STATE SUPREME COURT'S
ACTION, ITS JUDGMENT APPARENTLY COULD HAVE RESTED ON AN ADEQUATE NON
FEDERAL GROUND, BUT IN A LATER CASE THE COURT MADE CLEAR THAT IT HAD
DECIDED THE FEDERAL CONSTITUTIONAL QUESTION.  HELD:  ALTHOUGH
PETITIONER DID NOT SEEK CERTIORARI FROM THIS COURT TO REVIEW THE
JUDGMENT OF THE STATE SUPREME COURT, IT WAS WITHIN THE DISCRETION OF
THE FEDERAL DISTRICT COURT TO ENTERTAIN AN APPLICATION BY PETITIONER
FOR A WRIT OF HABEAS CORPUS AND TO PROCEED TO A DETERMINATION OF
PETITIONER'S FEDERAL CONSTITUTIONAL CLAIM.  PP. 674-682. 

(A)  THE FAILURE OF PETITIONER TO APPEAL FROM THE JUDGMENT OF
CONVICTION DOES NOT BAR RELIEF, SINCE IT APPEARS THAT A DEFENDANT WHO
IS DENIED COUNSEL IN A NON-CAPITAL CASE IN FLORIDA MAY RAISE THE
CONSTITUTIONAL QUESTION EITHER BY APPEAL FROM THE CONVICTION OR BY
HABEAS CORPUS, AND PURSUIT OF ONE OF THE TWO ALTERNATIVE REMEDIES
SATISFIES THE REQUIREMENT OF EXHAUSTION OF STATE REMEDIES.  PP. 677
678. 

(B)  THIS COURT ACCEPTS THE PRONOUNCEMENT BY THE STATE SUPREME COURT
IN A LATER CASE THAT ITS DECISION IN PETITIONER'S HABEAS CORPUS
PROCEEDING RESTED ON THE MERITS OF THE CONSTITUTIONAL QUESTION, AND NOT
ON A RULING THAT A DIRECT APPEAL WAS THE ONLY WAY TO RAISE THE ISSUE. 
PP. 678-679. 

(C)  THE REASONS FOR THE RULE REQUIRING EXHAUSTION OF THE STATE
REMEDY CEASE WHEN THE HIGHEST STATE COURT HAS RENDERED A DECISION ON
THE MERITS OF THE FEDERAL CONSTITUTIONAL CLAIM; THE PROBLEM THEN IS THE
NATURE AND EXTENT OF THE FEDERAL REVIEW OF THE CONSTITUTIONAL ISSUE. 
PP. 679-680. 

(D)  THE FACT THAT A STATE PRISONER DID NOT SEEK REVIEW BY THIS COURT
OF A JUDGMENT OF THE HIGHEST STATE COURT DENYING HIS CLAIM OF FEDERAL
RIGHT MAY BE A RELEVANT CONSIDERATION FOR THE DISTRICT COURT IN
DETERMINING WHETHER TO ENTERTAIN A SUBSEQUENT HABEAS CORPUS PETITION,
BUT IT DOES NOT ABSOLUTELY BAR EXERCISE OF THE DISTRICT COURT'S
DISCRETION TO ENTERTAIN SUCH A PETITION.  P. 680. 

(E)  WHERE IT IS APPARENT OR EVEN POSSIBLE THAT A STATE PRISONER'S
PETITION TO THIS COURT FOR CERTIORARI TO REVIEW A RULING BY THE HIGHEST
STATE COURT ON HIS CLAIM OF FEDERAL RIGHT WOULD BE DENIED BECAUSE THE
JUDGMENT APPEARS TO BE BASED ON AN ADEQUATE NON-FEDERAL GROUND, FAILURE
TO FILE THE PETITION SHOULD NOT PREJUDICE THE RIGHT TO FILE A HABEAS
CORPUS APPLICATION IN A FEDERAL DISTRICT COURT.  PP. 680-681. 

(F)  THE FLEXIBLE NATURE OF THE WRIT OF HABEAS CORPUS COUNSELS
AGAINST ERECTING A RIGID PROCEDURAL RULE THAT HAS THE EFFECT OF
IMPOSING A NEW JURISDICTIONAL LIMITATION ON THE WRIT.  P. 681. 

(G)  WHERE THE MATTER IS OTHERWISE WITHIN THE JURISDICTION OF THE
DISTRICT COURT, IT IS WITHIN THE DISCRETION OF THAT COURT TO WEIGH THE
FAILURE TO SEEK CERTIORARI AGAINST THE MISCARRIAGE OF JUSTICE THAT
MIGHT RESULT FROM A FAILURE TO GRANT RELIEF.  P. 681. 

(H)  THE FEAR THAT THE EXERCISE OF THE DISTRICT COURT'S POWER TO
ENTERTAIN HABEAS CORPUS PETITIONS IN SUCH CIRCUMSTANCES AS THESE MIGHT
GIVE RISE TO FREQUENT INSTANCES OF A SINGLE FEDERAL JUDGE UPSETTING THE
JUDGMENT OF A STATE COURT, OFTEN THE HIGHEST COURT OF THE STATE, IS
WITHOUT FOUNDATION.  PP. 681-682. 

2.  AT THE COMMENCEMENT OF HIS TRIAL IN A FLORIDA STATE COURT FOR THE
NON-CAPITAL OFFENSE OF BREAKING AND ENTERING, PETITIONER, CLAIMING TO
BE WITHOUT FUNDS, REQUESTED THE TRIAL JUDGE TO APPOINT COUNSEL TO
REPRESENT HIM.  THE REQUEST WAS REFUSED, THE TRIAL PROCEEDED, AND
PETITIONER WAS CONVICTED AND SENTENCED TO IMPRISONMENT FOR FIVE YEARS. 
PETITIONER, AFTER EXHAUSTING HIS STATE REMEDY, APPLIED TO THE FEDERAL
DISTRICT COURT FOR HABEAS CORPUS, CLAIMING DENIAL OF HIS FEDERAL
CONSTITUTIONAL RIGHT TO COUNSEL.  THE DISTRICT COURT FOUND THAT, AT THE
TIME OF THE TRIAL IN THE STATE COURT, PETITIONER WAS AN INEXPERIENCED
YOUTH UNFAMILIAR WITH COURT PROCEDURE AND NOT CAPABLE OF ADEQUATELY
REPRESENTING HIMSELF.  THE DISTRICT COURT CONCLUDED THAT THE REFUSAL OF
PETITIONER'S REQUEST THAT COUNSEL BE APPOINTED FOR HIM CONSTITUTED A
DENIAL OF DUE PROCESS, CONTRARY TO THE FOURTEENTH AMENDMENT OF THE
FEDERAL CONSTITUTION.  HELD:  THE FINDINGS AND CONCLUSION OF THE
DISTRICT COURT WERE NOT CLEARLY ERRONEOUS, AND IT WAS ERROR FOR THE
CIRCUIT COURT OF APPEALS TO REVERSE THE DISTRICT COURT'S JUDGMENT.  PP.
682-684. 

(A)  REFUSAL TO APPOINT COUNSEL FOR A DEFENDANT IN A CRIMINAL CASE
WHO, BY REASON OF AGE, IGNORANCE OR MENTAL CAPACITY, IS INCAPABLE OF
ADEQUATELY REPRESENTING HIMSELF, THOUGH THE PROSECUTION BE OF A
RELATIVELY SIMPLE NATURE, IS A DENIAL OF DUE PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT.  P. 684. 

(B)  WHETHER THE FAILURE TO APPOINT COUNSEL IN A NON-CAPITAL CASE IN
A STATE COURT CONSTITUTES A DENIAL OF DUE PROCESS UNDER THE FOURTEENTH
AMENDMENT DOES NOT DEPEND UPON WHETHER THE LAW OF THE STATE REQUIRES
SUCH AN APPOINTMENT.  P. 684. 

WADE V. MAYO, STATE PRISON CUSTODIAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING IN WHICH PETITIONER SOUGHT RELEASE FROM
IMPRISONMENT UNDER A STATE COURT JUDGMENT OF CONVICTION, THE FEDERAL
DISTRICT COURT GRANTED RELIEF ON THE GROUND THAT A FEDERAL
CONSTITUTIONAL RIGHT HAD BEEN DENIED PETITIONER AT HIS TRIAL IN THE
STATE COURT.  THE CIRCUIT COURT OF APPEALS REVERSED.  158 F.2D 614. 
THIS COURT GRANTED CERTIORARI.  331 U.S. 801.  REVERSED, P. 684. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE CENTERS ON TWO ISSUES:  (1) WHETHER IT WAS PROPER FOR A
FEDERAL DISTRICT COURT TO ENTERTAIN A HABEAS CORPUS PETITION FILED BY A
STATE PRISONER WHO, HAVING SECURED A RULING FROM THE HIGHEST STATE
COURT ON HIS FEDERAL CONSTITUTIONAL CLAIM, HAD FAILED TO SEEK A WRIT OF
CERTIORARI IN THIS COURT; (2) WHETHER THE FEDERAL DISTRICT COURT
CORRECTLY HELD THAT THE PRISONER HAD BEEN DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO COUNSEL AT THE TRIAL FOR A NON-CAPITAL STATE
OFFENSE. 

ON FEBRUARY 19, 1945, PETITIONER WADE WAS ARRESTED IN PALM BEACH
COUNTY, FLORIDA, UPON THE CHARGE OF BREAKING AND ENTERING.  HE WAS HELD
IN JAIL UNTIL BROUGHT TO TRIAL BEFORE A JURY ON MARCH 14, 1945, IN THE
CRIMINAL COURT OF RECORD OF PALM BEACH COUNTY.  JUST BEFORE THE TRIAL
STARTED, HE ASKED THE TRIAL JUDGE TO APPOINT COUNSEL TO REPRESENT HIM,
CLAIMING THAT IT WAS FINANCIALLY IMPOSSIBLE TO EMPLOY ONE HIMSELF.  THE
JUDGE REFUSED THE REQUEST AND THE TRIAL PROCEEDED.  THE JURY RETURNED A
VERDICT OF GUILTY ON THE SAME DAY AND WADE WAS IMMEDIATELY SENTENCED TO
SERVE FIVE YEARS IN THE STATE PENITENTIARY. 

WADE THEN OBTAINED THE AID OF COUNSEL.  ON MARCH 16, TWO DAYS AFTER
THE TRIAL AND CONVICTION, THIS COUNSEL FILED A PETITION FOR A WRIT OF
HABEAS CORPUS IN THE CIRCUIT COURT OF PALM BEACH COUNTY.  THE PETITION
CLAIMED THAT THE REFUSAL OF THE JUDGE TO APPOINT COUNSEL FOR WADE AT
THE TRIAL WAS A DENIAL OF THE DUE PROCESS OF LAW GUARANTEED TO HIM BY
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.  THE
WRIT WAS ISSUED, A HEARING WAS HAD, AND THE CIRCUIT COURT THEREUPON
GRANTED THE MOTION OF THE STATE'S ATTORNEY TO QUASH THE WRIT.  THIS
ACTION WAS TAKEN ON THE AUTHORITY OF TWO DECISIONS OF THE SUPREME COURT
OF FLORIDA HOLDING THAT UNDER FLORIDA LAW A TRIAL COURT HAS NO DUTY TO
APPOINT COUNSEL TO REPRESENT THE ACCUSED IN A NON-CAPITAL CASE.  WATSON
V. STATE, 142 FLA. 218, 194 SO. 640; JOHNSON V. STATE, 148 FLA. 510, 4
SO.2D 671. 

WADE'S COUNSEL APPEALED THE DECISION OF THE CIRCUIT COURT TO THE
SUPREME COURT OF FLORIDA.  IN THE LATTER COURT, THE STATE'S ATTORNEY
GENERAL FILED A MOTION TO DISMISS THE APPEAL AS FRIVOLOUS.  TWO POINTS
WERE EMPHASIZED IN THIS MOTION:  (1) WADE HAD NOT APPEALED FROM HIS
CONVICTION OR EVEN FILED A MOTION FOR A NEW TRIAL; (2) THE CIRCUIT
COURT HAD QUASHED THE HABEAS CORPUS WRIT ON THE AUTHORITY OF THE TWO
CASES CITED IN ITS ORDER.  THE SUPREME COURT, UPON CONSIDERATION OF
THIS MOTION, GRANTED THE MOTION AND DISMISSED THE APPEAL.  NO WRITTEN
OPINION WAS FILED AND NO INDICATION WAS GIVEN WHETHER THE APPEAL WAS
DISMISSED FOR ONE OR BOTH OF THE REASONS ADVANCED BY THE ATTORNEY
GENERAL.  THE DATE OF THIS ACTION WAS MAY 14, 1945.  NO ATTEMPT WAS
MADE TO SECURE A WRIT OF CERTIORARI FROM THIS COURT. 

NEARLY A YEAR LATER, ON MAY 8, 1946, A PETITION FOR A WRIT OF HABEAS
CORPUS WAS FILED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA.  THIS PETITION ALLEGED THAT THE REFUSAL TO APPOINT
COUNSEL FOR WADE AT THE TRIAL DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT
TO DUE PROCESS OF LAW.  AND THE PETITION FURTHER STATED THAT THIS POINT
HAD NOT BEEN RAISED BY WAY OF APPEAL FROM THE CONVICTION BECAUSE OF THE
BELIEF THAT THE WATSON AND JOHNSON CASES MADE IT PLAIN THAT THE SUPREME
COURT OF FLORIDA "HAS NO POWER OF REVERSAL OF A CONVICTION BECAUSE
DEFENDANTS WERE NOT REPRESENTED BY COUNSEL, AND FOR THAT REASON FAILED
TO OBTAIN A FAIR TRIAL, EXCEPT IN CAPITAL CASES, AND THIS CASE IS NOT A
CAPITAL CASE."  SUCH WAS THE REASON GIVEN FOR THE BELIEF THAT AN APPEAL
WOULD HAVE BEEN USELESS AND OF NO AVAIL.  BUT THE PETITION POINTED OUT
THAT IN ORDER TO EXHAUST ALL HIS REMEDIES IN THE STATE COURTS BEFORE
APPLYING TO A FEDERAL COURT, WADE HAD PURSUED A WRIT OF HABEAS CORPUS
ALL THE WAY THROUGH THE FLORIDA COURTS. 

THE DISTRICT COURT GRANTED THE WRIT AND A HEARING WAS HELD ON MAY 17,
1946.  BOTH WADE AND THE TRIAL JUDGE TESTIFIED AS TO THE EVENTS
SURROUNDING THE REFUSAL TO APPOINT COUNSEL.  AFTER HEARING THIS
TESTIMONY AND THE ARGUMENT OF COUNSEL, THE DISTRICT COURT CONCLUDED
THAT UNDER THE CIRCUMSTANCES THE DENIAL OF WADE'S REQUEST WAS CONTRARY
TO THE DUE PROCESS GUARANTEED BY THE FOURTEENTH AMENDMENT, THEREBY
RENDERING VOID THE JUDGMENT AND COMMITMENT UNDER WHICH WADE WAS HELD. 
BUT THE FIFTH CIRCUIT COURT OF APPEALS REVERSED, HOLDING THAT THE
FOURTEENTH AMENDMENT DID NOT REQUIRE THE APPOINTMENT OF COUNSEL IN NON
CAPITAL STATE CASES UNLESS THE STATE LAW SO REQUIRED.  158 F.2D 614. 

WE THEN GRANTED CERTIORARI.  AFTER THE CASE HAD BEEN SUBMITTED TO US
ON BRIEFS, WE ORDERED THE CASE RESTORED TO THE DOCKET FOR REARGUMENT ON
TWO POINTS:  "(1) THE PROPRIETY OF THE EXERCISE OF JURISDICTION BY THE
DISTRICT COURT IN THIS CASE WHEN IT APPEARS OF RECORD, IN THE STATE'S
MOTION FOR DISMISSAL OF THE APPEAL ON HABEAS CORPUS, THAT PETITIONER
HAD NOT AVAILED HIMSELF OF THE REMEDY OF APPEAL FROM HIS CONVICTION,
APPARENTLY OPEN AFTER TRIAL THOUGH NOW BARRED BY LIMITATION ...  (2)
WHETHER THE FAILURE OF FLORIDA TO MAKE THIS OBJECTION IN THIS
PROCEEDING AFFECTS THE ABOVE PROBLEM." 

IN OUR VIEW, IT WAS PROPER FOR THE DISTRICT COURT TO ENTERTAIN WADE'S
PETITION FOR A WRIT OF HABEAS CORPUS AND TO PROCEED TO A DETERMINATION
OF THE MERITS OF WADE'S CONSTITUTIONAL CLAIM.  THE CRUCIAL POINT IS
THAT WADE HAS EXHAUSTED ONE OF THE TWO ALTERNATIVE ROUTES OPEN IN THE
FLORIDA COURTS FOR SECURING AN ANSWER TO HIS CONSTITUTIONAL OBJECTION. 
IT NOW APPEARS THAT A DEFENDANT WHO IS DENIED COUNSEL IN A NON-CAPITAL
CASE IN FLORIDA MAY ATTACK THE CONSTITUTIONALITY OF SUCH TREATMENT
EITHER BY THE DIRECT METHOD OF AN APPEAL FROM THE CONVICTION OR BY THE
COLLATERAL METHOD OF HABEAS CORPUS.  SINCE WADE CHOSE THE LATTER
ALTERNATIVE AND PURSUED IT THROUGH TO THE SUPREME COURT OF FLORIDA, HE
HAS DONE ALL THAT COULD BE DONE TO SECURE A DETERMINATION OF HIS CLAIM
BY THE FLORIDA COURTS.  THE FACT THAT HE MIGHT HAVE APPEALED HIS
CONVICTION AND MADE THE SAME CLAIM AND RECEIVED THE SAME ANSWER DOES
NOT DETRACT FROM THE COMPLETENESS WITH WHICH FLORIDA HAS DISPOSED OF
HIS CLAIM ON HABEAS CORPUS.  THE EXHAUSTION OF BUT ONE OF SEVERAL
AVAILABLE ALTERNATIVES IS ALL THAT IS NECESSARY. 

AT THE TIME THE SUPREME COURT OF FLORIDA DISMISSED WADE'S HABEAS
CORPUS APPEAL, HOWEVER, THE PROPRIETY OF THE HABEAS CORPUS METHOD OF
RAISING THE RIGHT OF COUNSEL ISSUE WAS ANYTHING BUT CLEAR.  THE FAILURE
OF THAT COURT TO SPECIFY THE REASON FOR THE DISMISSAL MADE IT POSSIBLE
TO CONSTRUE THE ACTION AS A HOLDING THAT A DIRECT APPEAL FROM THE
CONVICTION WAS THE ONLY REMEDY AVAILABLE TO WADE.  THE ATTORNEY
GENERAL'S MOTION TO DISMISS THE HABEAS CORPUS APPEAL SEEMED TO MAKE
THAT POINT AND THE SUPREME COURT MIGHT HAVE ADOPTED IT AS THE SOLE
GROUND OF DISMISSAL.  HAD THAT BEEN THE SITUATION, THE CASE BEFORE US
WOULD BE IN AN ENTIRELY DIFFERENT POSTURE.  WADE WOULD THEN BE IN THE
POSITION OF SEEKING RELIEF IN A FEDERAL COURT AFTER HAVING CHOSEN TO
FOREGO THE OPPORTUNITY TO SECURE RECOGNITION OF HIS CLAIM BY THE
EXCLUSIVE MODE DESIGNATED BY FLORIDA. 

BUT THE DOUBTS AS TO THE AVAILABILITY OF HABEAS CORPUS IN FLORIDA FOR
THE PURPOSE AT HAND HAVE BEEN DISPELLED BY THE SUBSEQUENT DECISION OF
THE SUPREME COURT OF FLORIDA IN JOHNSON V. MAYO, 158 FLA. 264, 28 SO.2D
585.  THAT CASE WAS A HABEAS CORPUS PROCEEDING IN WHICH THE FLORIDA
COURT PROCEEDED TO PASS UPON THE MERITS OF A CLAIM IDENTICAL WITH THAT
RAISED BY WADE.  IN SO DOING, THE COURT RELIED UPON THE DISPOSITION OF
WADE'S HABEAS CORPUS APPEAL, STATING THAT IT HAD BEEN DISMISSED AS
FRIVOLOUS.  AS THE JOHNSON CASE MAKES CLEAR, WADE'S APPEAL WAS
CONSIDERED FRIVOLOUS BECAUSE THE RIGHT TO COUNSEL IN A NON-CAPITAL CASE
IS COUNTER TO THE SETTLED LAW OF FLORIDA.  REFERENCE WAS MADE IN THE
JOHNSON DECISION TO THE CONTRARY DECISIONS IN OTHER STATES AND TO "THE
RULE IN THE FEDERAL COURTS BUT WE ARE OF THE VIEW THAT THOSE DECISIONS
DO NOT CONTROL IN FLORIDA."  158 FLA. AT 266, 28 SO.2D AT 586. 

THUS THE SUPREME COURT OF FLORIDA ANNOUNCED UNAMBIGUOUSLY LESS THAN A
YEAR AND A HALF AFTER ITS DISMISSAL OF WADE'S APPEAL THAT ITS ACTION
HAD BEEN GROUNDED ON THE MERITS OF THE CONSTITUTIONAL ISSUE TENDERED BY
WADE, RATHER THAN ON A HOLDING THAT A DIRECT APPEAL WAS THE ONLY WAY TO
RAISE THAT ISSUE.  IT IS NOT FOR US TO CONTRADICT THIS CONSTRUCTION BY
THE FLORIDA COURT AND TO ATTRIBUTE THE DISMISSAL OF WADE'S APPEAL TO A
STATE GROUND OF PROCEDURE WHICH IS NEGATIVED BY BOTH THE DECISION AND
THE REASONING IN THE LATER JOHNSON CASE. 

THE ONLY REAL PROBLEM IN THIS CASE CONCERNING THE PROPRIETY OF THE
DISTRICT COURT ENTERTAINING WADE'S PETITION RELATES TO THE EFFECT OF
HIS FAILURE TO SEEK A WRIT OF CERTIORARI FROM THIS COURT FOLLOWING THE
ACTION OF THE SUPREME COURT OF FLORIDA ON HIS HABEAS CORPUS APPEAL.  IT
HAS BEEN SAID THAT "ORDINARILY AN APPLICATION FOR HABEAS CORPUS BY ONE
DETAINED UNDER A STATE COURT JUDGMENT OF CONVICTION FOR CRIME WILL BE
ENTERTAINED BY A FEDERAL COURT ONLY AFTER ALL STATE REMEDIES AVAILABLE,
INCLUDING ALL APPELLATE REMEDIES IN THE STATE COURTS AND IN THIS COURT
BY APPEAL OR WRIT OF CERTIORARI, HAVE BEEN EXHAUSTED."  EX PARTE HAWK,
321 U.S. 114, 116-117.  THE PROBLEM IS TO REEXAMINE THIS STATEMENT IN
THE LIGHT OF THE FACTS OF THIS CASE. 

THE REQUIREMENT THAT STATE REMEDIES BE EXHAUSTED BEFORE RELIEF IS
SOUGHT IN THE FEDERAL COURTS IS GROUNDED PRIMARILY UPON THE RESPECT
WHICH FEDERAL COURTS HAVE FOR THE STATE JUDICIAL PROCESSES AND UPON THE
ADMINISTRATIVE NECESSITIES OF THE FEDERAL JUDICIARY.  STATE COURTS ARE
DUTY BOUND TO GIVE FULL EFFECT TO FEDERAL CONSTITUTIONAL RIGHTS AND IT
CANNOT BE ASSUMED THAT THEY WILL BE DERELICT IN THEIR DUTY.  ONLY AFTER
STATE REMEDIES HAVE BEEN EXHAUSTED WITHOUT THE FEDERAL CLAIM HAVING
BEEN VINDICATED MAY FEDERAL COURTS PROPERLY INTERVENE.  INDEED, ANY
OTHER RULE WOULD VISIT UPON THE FEDERAL COURTS AN IMPOSSIBLE BURDEN,
FORCING THEM TO SUPERVISE THE COUNTLESS STATE CRIMINAL PROCEEDINGS IN
WHICH DEPRIVATIONS OF FEDERAL CONSTITUTIONAL RIGHTS ARE ALLEGED. 

BUT THE REASONS FOR THIS EXHAUSTION PRINCIPLE CEASE AFTER THE HIGHEST
STATE COURT HAS RENDERED A DECISION ON THE MERITS OF THE FEDERAL
CONSTITUTIONAL CLAIM.  THE STATE PROCEDURE HAS THEN ENDED AND THERE IS
NO LONGER ANY DANGER OF A COLLISION BETWEEN FEDERAL AND STATE
AUTHORITY.  THE PROBLEM SHIFTS FROM THE CONSUMMATION OF STATE REMEDIES
TO THE NATURE AND EXTENT OF THE FEDERAL REVIEW OF THE CONSTITUTIONAL
ISSUE.  THE EXERTION OF SUCH REVIEW AT THIS POINT, HOWEVER, IS NOT IN
ANY REAL SENSE A PART OF THE STATE PROCEDURE.  IT IS AN INVOCATION OF
FEDERAL AUTHORITY GROWING OUT OF THE SUPREMACY OF THE FEDERAL
CONSTITUTION AND THE NECESSITY OF GIVING EFFECT TO THAT SUPREMACY IF
THE STATE PROCESSES HAVE FAILED TO DO SO. 

AFTER STATE PROCEDURE HAS BEEN EXHAUSTED, THE CONCERN IS WITH THE
APPROPRIATE FEDERAL FORUM IN WHICH TO PURSUE FURTHER THE CONSTITUTIONAL
CLAIM.  THE CHOICE LIES BETWEEN APPLYING DIRECTLY TO THIS COURT FOR
REVIEW OF THE CONSTITUTIONAL ISSUE BY CERTIORARI OR INSTITUTING AN
ORIGINAL HABEAS CORPUS PROCEEDING IN A FEDERAL DISTRICT COURT. 
CONSIDERATIONS OF PROMPT AND ORDERLY PROCEDURE IN THE FEDERAL COURTS
WILL OFTEN DICTATE THAT DIRECT REVIEW BE SOUGHT FIRST IN THIS COURT. 
AND WHERE A PRISONER HAS NEGLECTED TO SEEK THAT REVIEW, SUCH FAILURE
MAY BE A RELEVANT CONSIDERATION FOR A DISTRICT COURT IN DETERMINING
WHETHER TO ENTERTAIN A SUBSEQUENT HABEAS CORPUS PETITION. 

BUT THE FACTORS WHICH MAKE IT DESIRABLE TO PRESENT THE CONSTITUTIONAL
ISSUE DIRECTLY AND INITIALLY TO THIS COURT DO NOT JUSTIFY A HARD AND
FAST RULE TO THAT EFFECT, ESPECIALLY IN VIEW OF THE VOLUME OF THIS
COURT'S BUSINESS.  WRITS OF CERTIORARI ARE MATTERS OF GRACE.  MATTERS
RELEVANT TO THE EXERCISE OF OUR CERTIORARI DISCRETION FREQUENTLY RESULT
IN DENIALS OF THE WRIT WITHOUT ANY CONSIDERATION OF THE MERITS.  THE
CONSTITUTIONAL ISSUE MAY THUS HAVE NO BEARING UPON THE DENIAL OF THE
WRIT.  WHERE IT IS APPARENT OR EVEN POSSIBLE THAT SUCH WOULD BE THE
DISPOSITION OF A PETITION FOR CERTIORARI FROM THE STATE COURT'S
JUDGMENT, FAILURE TO FILE A PETITION SHOULD NOT PREJUDICE THE RIGHT TO
FILE A HABEAS CORPUS APPLICATION IN A DISTRICT COURT.  GOOD JUDICIAL
ADMINISTRATION IS NOT FURTHERED BY INSISTENCE ON FUTILE PROCEDURE. 

MOREOVER, THE FLEXIBLE NATURE OF THE WRIT OF HABEAS CORPUS COUNSELS
AGAINST ERECTING A RIGID PROCEDURAL RULE THAT HAS THE EFFECT OF
IMPOSING A NEW JURISDICTIONAL LIMITATION ON THE WRIT.  HABEAS CORPUS IS
PRESENTLY AVAILABLE FOR USE BY A DISTRICT COURT WITHIN ITS RECOGNIZED
JURISDICTION WHENEVER NECESSARY TO PREVENT AN UNJUST AND ILLEGAL
DEPRIVATION OF HUMAN LIBERTY.  CF. PRICE V. JOHNSTON, 334 U.S. 266,
283.  WHERE THE MATTER IS OTHERWISE WITHIN THE JURISDICTION OF THE
DISTRICT COURT, IT IS WITHIN THE DISCRETION OF THAT COURT TO WEIGH THE
FAILURE TO SEEK CERTIORARI AGAINST THE MISCARRIAGE OF JUSTICE THAT
MIGHT RESULT FROM A FAILURE TO GRANT RELIEF.  IN SHORT, WE REFUSE TO
CODIFY THE FAILURE TO INVOKE THE DISCRETIONARY CERTIORARI POWERS OF
THIS COURT INTO AN ABSOLUTE DENIAL OF THE DISTRICT COURT'S POWER TO
ENTERTAIN A HABEAS CORPUS APPLICATION.  THE PREVENTION OF UNDUE
RESTRAINTS ON LIBERTY IS MORE IMPORTANT THAN MECHANICAL AND UNREALISTIC
ADMINISTRATION OF THE FEDERAL COURTS.    FEAR HAS SOMETIMES BEEN
EXPRESSED THAT THE EXERCISE OF THE DISTRICT COURT'S POWER TO ENTERTAIN
HABEAS CORPUS PETITIONS UNDER THESE CIRCUMSTANCES MIGHT GIVE RISE TO
FREQUENT INSTANCES OF A SINGLE FEDERAL JUDGE UPSETTING THE JUDGMENT OF
A STATE COURT, OFTEN THE HIGHEST COURT OF THE STATE.  BUT TO RESTRICT
THE WRIT OF HABEAS CORPUS FOR SUCH REASON IS TO LIMIT IT ON THE BASIS
OF A DISCREDITED FEAR.  EXPERIENCE HAS DEMONSTRATED THAT DISTRICT COURT
JUDGES HAVE USED THIS POWER SPARINGLY AND THAT ONLY IN A NEGLIGIBLE
NUMBER OF INSTANCES HAVE CONVICTIONS SUSTAINED BY STATE COURTS BEEN
REVERSED.  STATISTICS COMPILED BY THE ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS SHOW THAT DURING THE FISCAL YEARS OF 1943, 1944
AND 1945 THERE WAS AN AVERAGE OF 451 HABEAS CORPUS PETITIONS FILED EACH
YEAR IN FEDERAL DISTRICT COURTS BY PRISONERS SERVING STATE COURT
SENTENCES; OF THESE PETITIONS, AN AVERAGE OF BUT 6 PER YEAR RESULTED IN
A REVERSAL OF THE CONVICTION AND A RELEASE OF THE PRISONER.  THE
RELEASES THUS CONSTITUTED ONLY 1.3% OF THE TOTAL PETITIONS FILED.  IN
LIGHT OF SUCH FIGURES, IT CANNOT BE SAID THAT FEDERAL JUDGES HAVE
LIGHTLY EXERCISED THEIR POWER TO RELEASE PRISONERS HELD UNDER THE
AUTHORITY OF A STATE.  SEE EX PARTE ROYALL, 117 U.S. 241, 253. 

IN THE INSTANT CASE, WE BELIEVE THAT IT WAS WELL WITHIN THE
DISCRETION OF THE DISTRICT COURT TO CONSIDER WADE'S PETITION FOR A WRIT
OF HABEAS CORPUS.  THE FLORIDA COURTS HAD GIVEN A FULL AND CONCLUSIVE
ANSWER TO HIS CLAIM THAT HE HAD BEEN DENIED HIS CONSTITUTIONAL RIGHT TO
COUNSEL.  NO OTHER REMEDIES WERE AVAILABLE IN FLORIDA.  TRUE, HE DID
NOT SEEK CERTIORARI FOLLOWING THE DISMISSAL OF HIS HABEAS CORPUS APPEAL
BY THE SUPREME COURT OF FLORIDA.  BUT AT THE TIME OF THAT DISMISSAL, IT
WAS EXTREMELY DOUBTFUL, TO SAY THE LEAST, WHETHER THE CONSTITUTIONAL
ISSUE HAD REALLY BEEN DECIDED.  THAT DOUBT WAS SUCH AS TO MAKE IT
REASONABLY CERTAIN THAT THIS COURT WOULD HAVE DENIED CERTIORARI ON THE
THEORY THAT AN ADEQUATE STATE GROUND APPEARED TO UNDERLIE THE
JUDGMENT.  HIS FAILURE TO MAKE THIS FUTILE ATTEMPT TO SECURE CERTIORARI
ACCORDINGLY SHOULD NOT PREJUDICE HIS SUBSEQUENT PETITION FOR HABEAS
CORPUS IN THE DISTRICT COURT.  OTHERWISE HE WOULD BE LEFT COMPLETELY
REMEDILESS, HAVING BEEN UNABLE TO SECURE RELIEF FROM THE FLORIDA COURTS
AND BEING BARRED FROM INVOKING THE AID OF THE FEDERAL COURTS. 

AS TO THE MERITS OF WADE'S CONSTITUTIONAL CLAIM, THE DISTRICT COURT
MADE THE FOLLOWING FINDINGS AFTER A HEARING AT WHICH WADE AND THE TRIAL
JUDGE GAVE TESTIMONY: 

"THE COURT HAS HEARD THE EVIDENCE OF THE RESPECTIVE PARTIES AND THE
ARGUMENT OF THEIR COUNSEL.  IT APPEARS THAT PETITIONER, AT THE TIME OF
HIS TRIAL IN THE CRIMINAL COURT OF RECORD OF PALM BEACH, FLORIDA, WAS
EIGHTEEN YEARS OLD, AND THOUGH NOT WHOLLY A STRANGER TO THE COURT ROOM,
HAVING BEEN CONVICTED OF PRIOR OFFENSES, WAS STILL AN INEXPERIENCED
YOUTH UNFAMILIAR WITH COURT PROCEDURE, AND NOT CAPABLE OF ADEQUATELY
REPRESENTING HIMSELF.  IT IS ADMITTED BY THE JUDGE WHO PRESIDED AT
PETITIONER'S TRIAL ON MARCH 6, 1945 THAT PETITIONER IN OPEN COURT,
BEFORE TRIAL COMMENCED, REQUESTED SAID JUDGE TO APPOINT COUNSEL FOR
HIM, BUT THE REQUEST WAS DENIED AND PETITIONER PLACED ON TRIAL WITHOUT
COUNSEL.  ...  THE DENIAL OF PETITIONER'S REQUEST IN THE CIRCUMSTANCES
HERE INVOLVED CONSTITUTES A DENIAL OF DUE PROCESS, CONTRARY TO THE 14TH
AMENDMENT OF THE FEDERAL CONSTITUTION, WHICH RENDERS VOID THE JUDGMENT
AND COMMITMENT UNDER WHICH PETITIONER IS HELD.  ...  " 

AS THE CIRCUIT COURT OF APPEALS POINTED OUT, THE EVIDENCE AT THE
HEARING BEFORE THE DISTRICT COURT FURTHER SHOWED THAT DURING THE
PROGRESS OF THE TRIAL WADE (A) WAS ADVISED BY THE TRIAL JUDGE OF HIS
RIGHT TO CHALLENGE JURORS AND EXCUSE AS MANY AS SIX WITHOUT REASON, A
RIGHT WHICH HE DID NOT EXERCISE; (B) WAS AFFORDED AN OPPORTUNITY, WHICH
HE ACCEPTED, TO CROSS-EXAMINE STATE WITNESSES; (C) TOOK THE STAND AND
TESTIFIED IN HIS OWN BEHALF; AND (D) WAS OFFERED THE PRIVILEGE OF
ARGUING HIS CASE TO THE JURY BUT DECLINED, AS DID THE PROSECUTING
ATTORNEY. 

WE ARE NOT DISPOSED TO DISAGREE WITH THE FINDINGS AND CONCLUSION OF
THE DISTRICT COURT.  ITS DETERMINATION WAS A PURELY FACTUAL ONE TO THE
EFFECT THAT WADE WAS AN INEXPERIENCED YOUTH INCAPABLE OF ADEQUATELY
REPRESENTING HIMSELF EVEN IN A TRIAL WHICH APPARENTLY INVOLVED NO
COMPLICATED LEGAL QUESTIONS.  THIS IS A JUDGMENT WHICH IS PECULIARLY
WITHIN THE PROVINCE OF THE TRIER OF FACTS, BASED UPON PERSONAL
OBSERVATION OF WADE.  AND WE DO NOT FIND THAT THE DISTRICT COURT'S
DETERMINATION WAS CLEARLY ERRONEOUS. 

THERE ARE SOME INDIVIDUALS WHO, BY REASON OF AGE, IGNORANCE OR MENTAL
CAPACITY, ARE INCAPABLE OF REPRESENTING THEMSELVES ADEQUATELY IN A
PROSECUTION OF A RELATIVELY SIMPLE NATURE.  THIS INCAPACITY IS PURELY
PERSONAL AND CAN BE DETERMINED ONLY BY AN EXAMINATION AND OBSERVATION
OF THE INDIVIDUAL.  WHERE SUCH INCAPACITY IS PRESENT, THE REFUSAL TO
APPOINT COUNSEL IS A DENIAL OF DUE PROCESS OF LAW UNDER THE FOURTEENTH
AMENDMENT. 

THE CIRCUIT COURT OF APPEALS WAS THEREFORE IN ERROR IN REVERSING THE
DISTRICT COURT'S JUDGMENT.  IT WAS ALSO IN ERROR IN ASSUMING THAT THE
FAILURE TO APPOINT COUNSEL IN A NON-CAPITAL CASE IN A STATE COURT IS A
DENIAL OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT ONLY IF THE LAW OF
THE STATE REQUIRES SUCH AN APPOINTMENT.  TO THE EXTENT THAT THERE IS A
CONSTITUTIONAL RIGHT TO COUNSEL IN THIS TYPE OF CASE IT STEMS DIRECTLY
FROM THE FOURTEENTH AMENDMENT AND NOT FROM STATE STATUTES.  BETTS V.
BRADY, 316 U.S. 455, 473.  REVERSED. 

MR. JUSTICE REED, DISSENTING. 

DONALD WADE WAS BROUGHT TO TRIAL MARCH 14, 1945, IN THE CRIMINAL
COURT OF RECORD OF PALM BEACH COUNTY, FLORIDA.  ON THE SAME DAY, AFTER
PROCEEDINGS BEFORE THE PRESIDING JUDGE IN WHICH WADE REPRESENTED
HIMSELF, HE WAS CONVICTED OF THE CRIME OF BREAKING AND ENTERING, AND
SENTENCED TO FIVE YEARS' IMPRISONMENT.  WADE DID NOT APPEAL HIS
CONVICTION, BUT ON MARCH 16, 1945, HAVING OBTAINED THE AID OF COUNSEL,
HE BROUGHT A PETITION FOR A WRIT OF HABEAS CORPUS IN THE CIRCUIT COURT
OF PALM BEACH COUNTY; ON MARCH 22, 1945, THAT COURT QUASHED THE WRIT;
AN APPEAL FROM THE ORDER QUASHING THE WRIT WAS TAKEN TO THE SUPREME
COURT OF FLORIDA AND ON MAY 14, 1945, THAT COURT DISMISSED THE APPEAL
WITHOUT STATING WHETHER IT DISPOSED OF THE CASE ON THE MERITS OR UPON A
PROCEDURAL GROUND.  FN1  HOWEVER, IN A LATER CASE, JOHNSON V. MAYO, 158
FLA. 264, 28 SO.2D 585, THE FLORIDA SUPREME COURT INDICATED THAT ITS
RULING IN THE WADE CASE HAD BEEN UPON THE MERITS.  FOR THE PURPOSES OF
THIS OPINION, I ASSUME THAT THIS DECISION WAS UPON THE MERITS.  WADE
FAILED TO BRING A WRIT OF CERTIORARI TO THIS COURT TO REVIEW THE ACTION
OF THE STATE SUPREME COURT.  ON MAY 8, 1946, A PETITION FOR A WRIT OF
HABEAS CORPUS WAS FILED IN THE FEDERAL DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA.  THE WRIT WAS GRANTED AND A HEARING SET FOR MAY
17, 1946.  AT THE HEARING THE COURT EXAMINED WADE'S CLAIM THAT HE HAD
BEEN DEPRIVED OF HIS CONSTITUTIONAL RIGHTS BY THE FAILURE OF FLORIDA TO
FURNISH HIM WITH COUNSEL.  IT CONCLUDED THAT WADE HAD BEEN DEPRIVED OF
THOSE RIGHTS AND ORDERED THAT HE BE RELEASED FROM THE CUSTODY OF THE
RESPONDENT, MAYO, AND BE REMANDED TO THE CUSTODY OF THE SHERIFF OF PALM
BEACH COUNTY, FLORIDA, TO BE HELD FOR ANY FURTHER PROCEEDINGS WHICH THE
STATE SHOULD TAKE.  ON APPEAL, THE CIRCUIT COURT OF APPEALS FOR THE
FIFTH CIRCUIT REVERSED THE LOWER COURT.  IT HELD THAT THE CONSTITUTION
DOES NOT REQUIRE THAT A STATE FURNISH COUNSEL TO ONE IN THE POSITION OF
WADE.  IT BASED THIS CONCLUSION, WE THINK, FROM EXAMINATION OF ITS
OPINION, ON BETTS V. BRADY, 316 U.S. 455, NOT ON ANY RULING THAT STATE
LAW DETERMINES THE NECESSITY FOR THE APPOINTMENT OF COUNSEL IN STATE
CASES IN ALL NON-CAPITAL PROSECUTIONS.  FN2  WE GRANTED CERTIORARI, 331
U.S. 801; THE CASE WAS SUBMITTED TO US; ON NOVEMBER 10, 1947, WE
ORDERED THE CASE RESTORED TO THE DOCKET FOR REARGUMENT, DIRECTING THAT
COUNSEL DISCUSS THESE QUESTIONS:  "(1) THE PROPRIETY OF THE EXERCISE OF
JURISDICTION BY THE DISTRICT COURT IN THIS CASE WHEN IT APPEARS OF
RECORD, IN THE STATE'S MOTION FOR DISMISSAL OF THE APPEAL ON HABEAS
CORPUS, THAT PETITIONER HAD NOT AVAILED HIMSELF OF THE REMEDY OF APPEAL
FROM HIS CONVICTION, APPARENTLY OPEN AFTER TRIAL THOUGH NOW BARRED BY
LIMITATION  ...  (2) WHETHER THE FAILURE OF FLORIDA TO MAKE THIS
OBJECTION IN THIS PROCEEDING AFFECTS THE ABOVE PROBLEM." 

   I. 

THE FIRST QUESTION IN THIS CASE IS WHETHER WADE'S FAILURE TO BRING A
WRIT OF CERTIORARI TO THIS COURT FROM THE JUDGMENT OF THE FLORIDA
SUPREME COURT IN HIS STATE HABEAS CORPUS PROCEEDING SHOULD AFFECT HIS
EFFORT TO OBTAIN RELEASE THROUGH A FEDERAL WRIT OF HABEAS CORPUS.  OR,
TO REPHRASE THE PROBLEM, SHOULD CERTIORARI TO THIS COURT BE CONSIDERED
A PART OF THE STATE REMEDY FOR PURPOSES OF THE WELL-RECOGNIZED DOCTRINE
OF EXHAUSTION OF STATE REMEDIES?  MOONEY V. HOLOHAN, 294 U.S. 103. 

THIS INQUIRY MAY BE STARTED BY CONSIDERING EX PARTE HAWK, 321 U.S.
114.  THE UNANIMOUS OPINION IN THIS CASE WAS HANDED DOWN JANUARY 31,
1944.  HAWK HAD MADE A MOTION FOR LEAVE TO FILE A WRIT OF HABEAS CORPUS
IN THIS COURT.  HIS APPLICATION WAS DENIED ON THE GROUND THAT HE HAD
FAILED TO EXHAUST THE STATE REMEDIES AVAILABLE TO HIM.  THE OPINION IN
HAWK'S CASE, HOWEVER, HAS BEEN UNDERSTOOD BY THIS AND OTHER COURTS AS
HAVING BEEN DESIGNED TO GIVE DIRECTION FOR PROCEDURE TO FEDERAL COURTS
IN THEIR CONSIDERATION OF APPLICATIONS FOR HABEAS CORPUS BROUGHT BY A
PERSON CONFINED UNDER A STATE CRIMINAL CONVICTION.  FN3  ONE OF THE
RULES WHICH THIS COURT PRESCRIBED GOVERNS THE ISSUE NOW UNDER
CONSIDERATION. 

"ORDINARILY AN APPLICATION FOR HABEAS CORPUS BY ONE DETAINED UNDER A
STATE COURT JUDGMENT OF CONVICTION FOR CRIME WILL BE ENTERTAINED BY A
FEDERAL COURT ONLY AFTER ALL STATE REMEDIES AVAILABLE, INCLUDING ALL
APPELLATE REMEDIES IN THE STATE COURTS AND IN THIS COURT BY APPEAL OR
WRIT OF CERTIORARI, HAVE BEEN EXHAUSTED.  TINSLEY V. ANDERSON, 171 U.S.
101, 104-5; URQUHART V. BROWN, 205 U.S. 179; UNITED STATES EX REL.
KENNEDY V. TYLER, 269 U.S. 13; MOONEY V. HOLOHAN, SUPRA, 115; EX PARTE
ABERNATHY, 320 U.S. 219."  FN4 

AFTER A PERSON, PROTECTED BY THE PRESUMPTION OF INNOCENCE, HAS BEEN
CONVICTED BY A STATE TRIAL COURT AND HIS CONVICTION HAS BEEN SUBJECTED
EITHER TO DIRECT OR COLLATERAL ATTACKS IN THE STATE COURTS,  FN5  WISE
ADMINISTRATION COMMANDS THAT THIS COURT BE ASKED, BY APPEAL OR
CERTIORARI, TO PASS UPON THE FEDERAL CONSTITUTIONAL QUESTIONS PRESENTED
N6.  IT IS ONLY BY SUCH A PROCEDURE THAT THE VALIDITY OF STATE CRIMINAL
CONVICTION CAN BE EXPEDITIOUSLY AND FINALLY ADJUDICATED.  FN7 

THE LOWER FEDERAL COURTS HAVE CONSISTENTLY FOLLOWED THIS RULE OF
PRACTICE.  SOME DISTRICT JUDGES HAVE USED FORM LETTERS WHICH THEY SENT
TO CONVICTS CONFINED IN STATE PRISONS WHO SOUGHT HABEAS CORPUS.  FN8
IN GORDON V. SCUDDER, 163 F.2D 518, THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT APPLIED THE RULE TO A STATE HABEAS CORPUS PROCEEDING
IN WHICH THE HABEAS CORPUS HAD BEEN DENIED WITHOUT OPINION.  ALL OF THE
CIRCUIT COURTS WHICH HAVE CONSIDERED THIS RULE HAVE APPROVED IT.  FN9 

TODAY THE COURT BOTH LIMITS AND CONFUSES THE DOCTRINE OF EXHAUSTION OF
STATE REMEDIES SO CLEARLY EXPOUNDED IN EX PARTE HAWK, SUPRA.  CERTAINTY
IN HABEAS CORPUS PROCEDURE FOR REVIEW OF STATE CONVICTIONS IS ESSENTIAL
SO THAT THE APPLICANT MAY KNOW THE WAY TO TEST THE CONSTITUTIONALITY OF
HIS CONVICTION AND SO THAT THE PUBLIC AND ITS JUDICIAL SYSTEM MAY BE
SPARED UNDUE EXPENSE AND INTERFERENCE FROM A SUCCESSION OF PETITIONS
THAT CANNOT BE CONSIDERED ON THE MERITS BECAUSE OF PROCEDURAL DEFECTS. 
THE SERIOUS AND DIFFICULT PROBLEMS OF HABEAS CORPUS PROCEDURE IN THE
FEDERAL COURTS CANNOT BE SOLVED BY RULES WHICH HAVE AS THEIR VERY CORE
VAGUENESS AND UNCERTAINTY.  FN10  I CONCLUDE THAT CERTIORARI SHOULD BE
CONSIDERED A PART OF THE STATE PROCEDURE FOR PURPOSES OF HABEAS
CORPUS. 

II. 

THE NEXT ISSUE IS THIS.  CAN WADE, HAVING FAILED TO USE A STATE
REMEDY ONCE AVAILABLE  FN11  - APPEAL - AND HAVING FAILED TO TAKE A
WRIT OF CERTIORARI TO THIS COURT FROM THE DENIAL OF HIS STATE HABEAS
CORPUS, WITH NO CONDITIONS EXISTING OR CLAIMED THAT RESTRICTED HIS
ABILITY TO PROCEED IN THE REGULAR COURSE IN THE HANDLING OF HIS CASE
AFTER VERDICT, OBTAIN RELIEF IN A FEDERAL HABEAS CORPUS PROCEEDING FOR
AN ALLEGED DEPRIVATION OF HIS CONSTITUTIONAL RIGHT TO COUNSEL WHEN IT
APPEARS THAT NO STATE REMEDY IN WHICH RELIEF CAN BE OBTAINED IS NOW
AVAILABLE?  FN12 

THE FEDERAL COURTS HAVE THE POWER TO DISCHARGE UPON A WRIT OF HABEAS
CORPUS "A PRISONER  ...  IN CUSTODY IN VIOLATION OF THE CONSTITUTION
...  OF THE UNITED STATES  ...  "  FN13  THIS COURT HELD IN FRANK V.
MANGUM, THAT THIS WRIT IS A PROPER PROCEDURE "TO SAFEGUARD THE LIBERTY
OF ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES AGAINST
INFRINGEMENT THROUGH ANY VIOLATION OF THE CONSTITUTION  ...  "  FN14
THE DISSENT IN THE FRANK CASE AGREED WITH THE COURT'S THEORY OF THE
AVAILABILITY OF HABEAS CORPUS, SAYING AT P. 346:  "BUT HABEAS CORPUS
CUTS THROUGH ALL FORMS AND GOES TO THE VERY TISSUE OF THE STRUCTURE. 
IT COMES IN FROM THE OUTSIDE, NOT IN SUBORDINATION TO THE PROCEEDINGS,
AND ALTHOUGH EVERY FORM MAY HAVE BEEN PRESERVED OPENS THE INQUIRY
WHETHER THEY HAVE BEEN MORE THAN AN EMPTY SHELL."  AS WADE ALLEGED A
DEPRIVATION OF HIS CONSTITUTIONAL RIGHTS, THE DISTRICT COURT HAD
JURISDICTION TO ENTERTAIN THE PETITION FOR THE WRIT OF HABEAS CORPUS. 
HABEAS CORPUS IS, HOWEVER, A DISCRETIONARY WRIT.  FN15  THUS, THE
QUESTION PRESENTED IS THIS: WAS IT PROPER FOR THE DISTRICT COURT TO
EXERCISE ITS JURISDICTION WHEN IT APPEARED OF RECORD THAT WADE HAD NOT
AVAILED HIMSELF OF THE REMEDY OF APPEAL, OPEN AFTER TRIAL THOUGH NOW
BARRED BY LIMITATION, AND HAD FAILED TO EXHAUST, BY WRIT OF CERTIORARI,
THE STATE REMEDY OF HABEAS CORPUS?  AN ANSWER TO THIS PROBLEM CAN BEST
BE DERIVED FROM A CONSIDERATION OF THE NATURE AND FUNCTION OF HABEAS
CORPUS IN A FEDERAL SYSTEM OF GOVERNMENT, THE RELEVANT PRECEDENTS AND
ANALOGIES DRAWN FROM THE DECIDED HABEAS CORPUS CASES, AND THE
RESOLUTION OF SIMILAR QUESTIONS IN RELATED FIELDS. 

STATE JUDICIAL SYSTEMS ARE DESIGNED TO PROVIDE PLACES OF TRIAL FOR
OFFENDERS AGAINST THE CRIMINAL LAWS OF THEIR RESPECTIVE STATES.  STATE
COURTS EQUALLY WITH FEDERAL COURTS ADMINISTER JUSTICE UNDER THE
AUTHORITY AND LIMITATIONS OF THE CONSTITUTION OF THE UNITED STATES, THE
SUPREME LAW OF THE LAND, BINDING THE JUDGES IN EVERY STATE "ANY THING
IN THE CONSTITUTION OR LAWS OF ANY STATE TO THE CONTRARY
NOTWITHSTANDING."  FN16  THUS, WHENEVER A PRISONER BRINGS A PETITION
FOR A WRIT OF HABEAS CORPUS IN THE FEDERAL COURTS CHALLENGING
COLLATERALLY A CONVICTION IN THE STATE COURTS AND ASKING RELEASE FROM
STATE CUSTODY, SERIOUS QUESTIONS OF THE RELATION BETWEEN THE FEDERAL
AND STATE JUDICIAL STRUCTURES ARE RAISED.  "IT IS AN EXCEEDINGLY
DELICATE JURISDICTION GIVEN TO THE FEDERAL COURTS BY WHICH A PERSON
UNDER AN INDICTMENT IN A STATE COURT AND SUBJECT TO ITS LAWS MAY, BY
THE DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT, UPON A WRIT OF
HABEAS CORPUS, BE TAKEN OUT OF THE CUSTODY OF THE OFFICERS OF THE STATE
AND FINALLY DISCHARGED THEREFROM ...  "  FN17  RESPECT FOR THE THEORY
AND PRACTICE OF OUR DUAL SYSTEM OF GOVERNMENT REQUIRES THAT FEDERAL
COURTS INTERVENE BY HABEAS CORPUS IN STATE CRIMINAL PROSECUTIONS ONLY
IN EXCEPTIONAL CIRCUMSTANCES.  THEIR DUTY COMPELS THEM TO ACT WHERE THE
STATE FAILS TO PROVIDE A REMEDY FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS
BUT DUE REGARD FOR A STATE'S SYSTEM OF JUSTICE ADMONISHES FEDERAL
COURTS TO BE CHARY OF ALLOWING THE EXTRAORDINARY WRIT OF HABEAS CORPUS
WHERE THE ACCUSED, WITHOUT EXCUSE, HAS NOT EXHAUSTED THE REMEDIES
OFFERED BY THE STATE TO REDRESS VIOLATIONS OF FEDERAL CONSTITUTIONAL
RIGHTS.  FN18 

THE DESIRABILITY OF DISCRETIONARY LIMITATION OF THE HABEAS CORPUS
POWER OF FEDERAL COURTS IN RESPECT TO STATE CRIMINAL PROSECUTIONS WHICH
INHERES IN THE DUAL SOVEREIGNTIES OF THE FEDERAL SYSTEM IS RE-ENFORCED
BY CONSIDERATIONS OF PRACTICAL ADMINISTRATION:  (1) IT IS NOT TO BE
ASSUMED THAT STATE COURTS DELIBERATELY DENY TO THE INDIVIDUAL HIS
RIGHTS UNDER THE FEDERAL CONSTITUTION; (2) THE NORMAL PATHS OF REVIEW -
APPEAL AND PETITION FOR CERTIORARI - ARE OPEN TO CORRECT FEDERAL
CONSTITUTIONAL ERRORS IN STATE CRIMINAL PROCEEDINGS; (3) EXTRAVAGANT
EXERCISE OF FEDERAL JURISDICTION WOULD FURNISH ANOTHER TECHNIQUE OF
DELAY IN A CRIMINAL SYSTEM WHICH OFTEN PERMITS LONG PERIODS OF TIME TO
ELAPSE BETWEEN SENTENCING AND EXECUTION OF SENTENCE. 

BECAUSE OF THE ABOVE REASONS, THE FEDERAL COURTS EXERCISE THEIR
HABEAS CORPUS JURISDICTION WHERE AN INDIVIDUAL IS IN THE CUSTODY OF A
STATE IN LIMITED TYPES OF SITUATIONS.  FOR EXAMPLE:  (1) WHERE ALL
STATE REMEDIES HAVE BEEN EXHAUSTED; (2) WHERE THE STATE REMEDY IS
SERIOUSLY INADEQUATE N19; AND (3) WHERE A STATE ATTEMPTS TO INTERFERE
IMPROPERLY WITH THE FEDERAL GOVERNMENT. 

THE THIRD CLASS OF CASES REPRESENTS THE LARGEST GROUP OF SITUATIONS
IN WHICH FEDERAL COURTS EXERCISE HABEAS CORPUS JURISDICTION WITHOUT THE
EXHAUSTION OF STATE REMEDIES.  THE CASES OF THIS TYPE WHICH HAVE COME
BEFORE THIS COURT ARE EXAMPLES OF THE USE OF HABEAS CORPUS TO PREVENT
STATE INTERFERENCE WITH THE ADMINISTRATION OF BRANCH OF THE FEDERAL
GOVERNMENT,  FN20  OR WITH A FEDERAL AGENCY,  FN21  OR WITH TREATY
RIGHTS OF THE UNITED STATES.  FN22 

THE SECOND CLASS IS REPRESENTED IN THIS COURT BY ONLY ONE CASE, MOORE
V. DEMPSEY, 261 U.S. 86.  THERE EXHAUSTION OF STATE REMEDIES WAS NOT
REQUIRED.  FN23  "WE ASSUME IN ACCORDANCE WITH THAT CASE (FRANK V.
MANGUM, 237 U.S. 309, 335) THAT THE CORRECTIVE PROCESS SUPPLIED BY THE
STATE MAY BE SO ADEQUATE THAT INTERFERENCE BY HABEAS CORPUS OUGHT NOT
TO BE ALLOWED.  ...  BUT IF THE CASE IS THAT THE WHOLE PROCEEDING IS A
MASK - THAT COUNSEL, JURY AND JUDGE WERE SWEPT TO THE FATAL END BY AN
IRRESISTIBLE WAVE OF PUBLIC PASSION, AND THAT THE STATE COURTS FAILED
TO CORRECT THE WRONG, NEITHER PERFECTION IN THE MACHINERY FOR
CORRECTION NOR THE POSSIBILITY THAT THE TRIAL COURT AND COUNSEL SAW NO
OTHER WAY OF AVOIDING AN IMMEDIATE OUTBREAK OF THE MOB CAN PREVENT THIS
COURT FROM SECURING TO THE PETITIONERS THEIR CONSTITUTIONAL RIGHTS." 
FN24  THAT MOORE'S CASE IS UNIQUE, EMPHASIZES ITS UNUSUAL NATURE; THIS
COURT HAS NOT AGAIN BEEN COMPELLED TO RESORT TO THIS EXTREME PROCEDURE
TO PROTECT CONSTITUTIONAL RIGHTS. 

THE GREATEST NUMBER OF HABEAS CORPUS CASES IN THE FEDERAL COURTS FALL
INTO CLASS ONE.  IN EX PARTE HAWK, SUPRA, WE STATED THE PRINCIPLE WHICH
GOVERNS THESE CASES:  "ORDINARILY AN APPLICATION FOR HABEAS CORPUS BY
ONE DETAINED UNDER A STATE COURT JUDGMENT OF CONVICTION FOR CRIME WILL
BE ENTERTAINED BY A FEDERAL COURT ONLY AFTER ALL STATE REMEDIES
AVAILABLE, INCLUDING ALL APPELLATE REMEDIES IN THE STATE COURTS AND IN
THIS COURT BY APPEAL OR WRIT OF CERTIORARI, HAVE BEEN EXHAUSTED.  ...
"  FN25  LITIGATION OF THIS CATEGORY OFFERS THE BEST EXAMPLE OF THE
GENERAL PRINCIPLE OF FEDERAL-HABEAS-CORPUS RESTRAINT.  THE INSISTENCE
THAT STATE REMEDIES BE EXHAUSTED IS BUT A CONCISE STATEMENT OF THE
PROPOSITION THAT STATE COURTS MUST, IN ALL BUT THE MOST EXCEPTIONAL
CASES, BE THE FORUMS IN WHICH ALL THE PROBLEMS INCIDENT TO A STATE
CRIMINAL PROSECUTION ARE TO BE ANSWERED. 

WHERE A STATE OFFERS AN ADEQUATE REMEDY FOR THE CORRECTION OF ERRORS
IN CRIMINAL TRIALS, THAT REMEDY MUST BE FOLLOWED.  WHERE THERE IS A
DENIAL OF CONSTITUTIONAL RIGHTS BY THE HIGHEST COURT OF A STATE, A
REMEDY EXISTS BY DIRECT REVIEW IN THIS COURT.  FN26  AN ACCUSED SHOULD
NOT BE PERMITTED TO RESERVE GROUNDS FOR A HABEAS CORPUS PETITION IN
FEDERAL COURTS WHICH WOULD HAVE FURNISHED A BASIS FOR A REVIEW IN
REGULAR COURSE IN THE STATE COURT; NOT EVEN WHEN THOSE GROUNDS ARE THAT
THE ACCUSED WAS DENIED A CONSTITUTIONAL RIGHT BY A STATE COURT SUBJECT
TO REVERSAL BY A HIGHER STATE COURT.  FN27  TO PERMIT SUCH TRIFLING
WITH STATE CRIMINAL LAW WOULD DISRUPT ITS EFFICIENT ADMINISTRATION. 
THE FEDERAL COURT'S REFUSAL OF CONSIDERATION DEPENDS ON THE RULE THAT
THE FEDERAL COURTS SHOULD NOT UTILIZE HABEAS CORPUS TO TAKE THE PLACE
OF STATE REMEDIES EXCEPT IN EXTRAORDINARY SITUATIONS WHERE OTHERWISE
THE ACCUSED WOULD BE "REMEDILESS."  FN28  IT IS NOT SEEMLY THAT YEARS
AFTER A CONVICTION, WHEN TIME HAS DULLED MEMORIES, WHEN DEATH HAS
STILLED TONGUES, WHEN RECORDS ARE UNAVAILABLE, CONVICTED FELONS,
UNBURDENED BY ANY HANDICAP TO A NORMAL PRESENTATION OF ANY CLAIM OF
UNFAIRNESS IN THEIR TRIAL, SHOULD BE PERMITTED TO ATTACK THEIR
SENTENCES COLLATERALLY BY HABEAS CORPUS BECAUSE OF ERRORS KNOWN TO THEM
AT THE TIME OF TRIAL.  WHEN IT IS SHOWN BY THE RECORD THAT A PETITIONER
IN A FEDERAL COURT FOR RELIEF FROM A STATE CONVICTION THAT INVOLVES A
DENIAL OF CONSTITUTIONAL RIGHTS HAS WITHOUT ADEQUATE EXCUSE FAILED TO
USE AN AVAILABLE STATE JUDICIAL REMEDY, ALTHOUGH ALL SUCH REMEDIES ARE
NOW BARRED TO HIM BY LIMITATION, I THINK THAT FEDERAL COURTS SHOULD NOT
INTERVENE TO CORRECT THE ERROR. 

IN GOTO V. LANE, 265 U.S. 393, THIS COURT WAS ASKED TO CONSIDER THE
ISSUE OF WHETHER A GROUP OF PRISONERS, CONVICTED OF A CRIME IN THE
TERRITORIAL COURTS OF HAWAII, HAD THE RIGHT TO RAISE IN A HABEAS CORPUS
PROCEEDING BROUGHT IN A FEDERAL DISTRICT COURT ALLEGED DEPRIVATIONS OF
THEIR CONSTITUTIONAL RIGHTS.  THE COURT SAID:  "AND, IF THE PETITIONERS
PERMITTED THE TIME WITHIN WHICH A REVIEW ON WRIT OF ERROR MIGHT BE
OBTAINED TO ELAPSE AND THEREBY LOST THE OPPORTUNITY FOR SUCH A REVIEW,
THAT GAVE NO RIGHT TO RESORT TO HABEAS CORPUS AS A SUBSTITUTE."  FN29
THE COURT FOUND NO REASONS WHICH, IN THE EXERCISE OF A SOUND JUDICIAL
DISCRETION, EXCUSED THE PETITIONERS FROM SEEKING REVIEW BY WRIT OF
ERROR.  CONSEQUENTLY, IT AFFIRMED THE JUDGMENT OF THE DISTRICT COURT
WHICH HAD REFUSED TO ISSUE THE WRIT.  THIS CASE IS A PERSUASIVE
PRECEDENT IN THE SITUATION NOW BEFORE US BECAUSE THE STATE COURTS OF
THE FORTY-EIGHT STATES AND THE TERRITORIAL COURTS OF HAWAII STOOD, IN
1924, IN SIMILAR POSITIONS IN RELATION TO THE FEDERAL JUDICIAL
STRUCTURE.  AS THE SCOPE OF REVIEW OF THIS COURT IN CRIMINAL CASES FROM
STATE COURTS AND HAWAIIAN TERRITORIAL COURTS WAS THEN THE SAME, NO
VALID DISTINCTIONS CAN BE DRAWN BETWEEN GOTO'S CASE AND THE SITUATION
NOW BEFORE US.  FN30 

IT SHOULD NOT BE THOUGHT THAT THE PRACTICE WHICH I WOULD FOLLOW
REPRESENTS THE SOLE INSTANCE IN OUR JURISPRUDENCE OF THE LOSS OF THE
RIGHT TO PRESS CONSTITUTIONAL QUESTIONS BECAUSE OF FAILURE ON THE PART
OF THE INDIVIDUAL TO RAISE THOSE ISSUES PROPERLY OR IN TIME.  THE
PRINCIPLE THAT FEDERAL CONSTITUTIONAL QUESTIONS MUST BE PROPERLY RAISED
IN STATE COURTS BEFORE THEY WILL BE CONSIDERED BY THIS COURT IS TOO
WELL ESTABLISHED TO REQUIRE CITATION.  IN A CASE DECIDED THIS TERM,
PARKER V. ILLINOIS, 333 U.S. 571, PARKER WAS HELD TO HAVE LOST HIS
RIGHT TO RAISE FEDERAL CONSTITUTIONAL QUESTIONS BECAUSE OF STATE
PROCEDURE WHICH REQUIRED THAT THOSE QUESTIONS BE RAISED BY DIRECT
APPEAL TO THE STATE SUPREME COURT.  PARKER APPEALED HIS CASE TO THE
INTERMEDIATE APPELLATE COURT AND, CONSEQUENTLY, LOST ANY CHANCE OF AN
ADJUDICATION BY THIS COURT OF THOSE ISSUES.  FN31

               III. 

IT SEEMS TO ME THAT THE CONSIDERATIONS, ANALOGIES, AND PRECEDENTS
DISCUSSED ABOVE ADMIT OF ONLY ONE ANSWER TO THE BASIC PROBLEM OF THIS
CASE.  THIS PETITIONER HAD COUNSEL IN AMPLE TIME TO PERMIT A PETITION
FOR CERTIORARI TO THIS COURT.  THERE IS NOT A SUGGESTION IN THE RECORD
OF ANY INTERFERENCE, THROUGH HIS OWN DISABILITIES OR OTHERWISE, WITH
PETITIONER'S RIGHT TO SECURE, THROUGH COUNSEL OF HIS OWN CHOICE, REVIEW
OF HIS ALLEGEDLY ERRONEOUS CONVICTION.  FN32  THEREFORE, I THINK THAT
THE DISTRICT COURT TO WHOM THIS PETITION FOR A WRIT OF HABEAS CORPUS
FROM A CONVICTION IN A STATE COURT WAS PRESENTED SHOULD HAVE REFUSED
COGNIZANCE OF THE WRIT, SUA SPONTE, SINCE THE RECORD SHOWED THAT STATE
REMEDIES WERE AVAILABLE  FN33  AFTER THE ALLEGED DENIAL OF
CONSTITUTIONAL RIGHTS AND THAT THE PETITIONER NEGLECTED TO TAKE
ADVANTAGE OF THOSE REMEDIES.  FN34 "AVAILABLE" AS HERE USED CARRIES THE
CONNOTATION OF ABILITY AND OPPORTUNITY TO TAKE ADVANTAGE OF THE STATE
PROCEDURE.  FN35  FLORIDA'S FAILURE TO OBJECT TO CONSIDERATION OF THE
PETITION FOR HABEAS CORPUS BECAUSE CERTIORARI WAS NOT REQUESTED CANNOT
HAVE THE EFFECT OF AUTHORIZING A FEDERAL COURT TO EXAMINE INTO THE
VALIDITY OF THE CONVICTION.  THE REASON FOR NOT ALLOWING HABEAS CORPUS
IN SUCH CASES DOES NOT DEPEND UPON STATE ACQUIESCENCE BUT UPON THE
FEDERAL JUDICIAL POLICY OF NON-INTERFERENCE WITH STATE CRIMINAL
ADMINISTRATION UNLESS THERE HAS BEEN COMPLETE USE AND FINAL EXHAUSTION
OF STATE REMEDIES. 

ON THE HYPOTHESIS THAT THE DECISION OF THE FLORIDA SUPREME COURT
DISMISSING WADE'S APPEAL FROM THE ORDER OF THE CIRCUIT COURT OF PALM
BEACH COUNTY, FLORIDA, WAS ENTERED ON THE GROUND THAT THE REMEDY IN
FLORIDA FOR THE DENIAL OF THE RIGHT TO COUNSEL WAS BY APPEAL INSTEAD OF
HABEAS CORPUS, WADE STANDS IN NO BETTER POSITION.  IF THAT WAS THE REAL
BASIS OF THE DISMISSAL OF THE APPEAL, WADE FAILED TO AVAIL HIMSELF OF
THE REMEDY OF APPEAL THEN OPEN TO HIM IN FLORIDA, THOUGH NOW FORECLOSED
BY LIMITATION.  NO DOUBT HIS COUNSEL BY MOTION COULD HAVE OBTAINED A
RULING FROM THE FLORIDA SUPREME COURT AS TO WHETHER THEIR DISMISSAL WAS
ON A FEDERAL OR STATE GROUND IN VIEW OF THE THEN RULE OF THIS COURT IN
EX PARTE HAWK, SUPRA, AT 117, THAT AN APPLICANT FOR HABEAS CORPUS IN
FEDERAL COURTS MUST EXHAUST STATE REMEDIES INCLUDING APPEAL OR
CERTIORARI TO THIS COURT.  THIS WOULD HAVE PERMITTED WADE TO BRING HIS
CONSTITUTIONAL QUESTION HERE FOR REVIEW UNDER A REGULAR COURSE OF
PROCEDURE.  IF THE FLORIDA SUPREME COURT HAD REFUSED A CLARIFYING
ORDER, THIS COURT WOULD HAVE HAD RESOURCES FOR REACHING A CONCLUSION IN
SUCH A SITUATION.  SEE LOFTUS V. ILLINOIS, 334 U.S. 804.  CONSEQUENTLY,
I THINK THAT THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD BE
AFFIRMED AND THE CASE REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS
THAT THE PETITION FOR HABEAS CORPUS BE DISMISSED. 

FN1  WADE V. KIRK, 155 FLA. 906, 23 SO.2D 163. 

FN2  MAYO V. WADE, 158 F.2D 614. 

FN3  THIS COURT HAS, IN A NUMBER OF INSTANCES, THROUGH ITS CLERK,
DISTRIBUTED THIS OPINION TO STATE PRISONERS SEEKING HABEAS CORPUS
RELIEF IN FEDERAL COURTS. 

POTTER V. DOWD, 146 F.2D 244, 248:  "THE HAWK DECISION IS THE LATEST
OF THE SUPREME COURT ON THE SUBJECT.  IT WAS NO DOUBT INTENDED TO
ENLIGHTEN THE FEDERAL INFERIOR COURTS SO THAT THE RATHER DIFFICULT ROAD
WHICH THEY MUST TRAVEL WILL HAVE FEWER OBSTRUCTIONS.  ALSO, THE CONVICT
WHO BELIEVES HE HAS BEEN DENIED RIGHTS GUARANTEED HIM BY THE FEDERAL
CONSTITUTION WILL FIND THE PROPER JUDICIAL HAVEN HE IS SEEKING." 

FN4  EX PARTE HAWK, SUPRA, AT 116-17. 

FN5  IF A STATE JUDGMENT IS BASED UPON AN ADEQUATE STATE GROUND, A
FAILURE TO REQUEST REVIEW BY THIS COURT DOES NOT PREJUDICE THE
PRISONER.  WHITE V. RAGEN, 324 U.S. 760, 767; HOUSE V. MAYO, 324 U.S.
42, 48. 

FN6  AT PP. 691-692, INFRA, I COMMENT UPON THE DELICATE NATURE OF THE
FEDERAL HABEAS CORPUS JURISDICTION OVER STATE CONVICTIONS.  THOSE
OBSERVATIONS ARE RELEVANT HERE.    FN7  SEE PP. 694-695, INFRA. 

FN8  AN EXAMPLE OF SUCH A LETTER APPEARS IN THE RECORD IN EX PARTE
HANLEY, 322 U.S. 708: 

"YOUR PETITION FOR WRIT OF HABEAS CORPUS HAS BEEN RECEIVED AND
EXAMINED.  FROM SUCH EXAMINATION, IT APPEARS THAT, IF FILED, YOUR
PETITION WOULD HAVE TO BE DISMISSED FOR THE REASON THAT IT DOES NOT
APPEAR THEREFROM THAT YOU HAVE EXHAUSTED YOUR REMEDIES IN THE SUPREME
COURT OF THE UNITED STATES, IN ACCORDANCE WITH THE SUGGESTION CONTAINED
IN A RECENT OPINION OF THE SUPREME COURT OF THE UNITED STATES IN THE
CASE OF EX PARTE HENRY HAWK (FILED JANUARY 31, 1944), WHEREIN THE COURT
SAID:    "'ORDINARILY AN APPLICATION FOR HABEAS CORPUS BY ONE DETAINED
UNDER A STATE COURT JUDGMENT OF CONVICTION FOR CRIME WILL BE
ENTERTAINED BY A FEDERAL COURT ONLY AFTER ALL STATE REMEDIES AVAILABLE,
INCLUDING ALL APPELLATE REMEDIES IN THE STATE COURTS AND IN THIS COURT
BY APPEAL OR WRIT OF CERTIORARI, HAVE BEEN EXHAUSTED." 

ACCORDINGLY, YOUR PETITION HAS NOT BEEN FILED AND IS RETURNED
HEREWITH.  IF, HOWEVER, YOU DESIRE TO MAKE A RECORD IN THIS COURT, YOU
MAY RETURN THE PETITION (REFERRING TO THIS LETTER) WITH THE REQUEST
THAT IT BE FILED, AND IT WILL BE FILED IN THE OFFICE OF THE CLERK OF
THIS COURT. 

"I DO NOT WISH TO BE UNDERSTOOD AS EXPRESSING ANY OPINION ON THE
MERITS OF YOUR CASE." 

FN9  SEE LYON V. HARKNESS, 151 F.2D 731, 733(C.C.A. 1ST); MONSKY V.
WARDEN OF CLINTON STATE PRISON, 163 F.2D 978, 979(C.C.A.2D); 

STONEBREAKER V. SMYTH, 163 F.2D 498, 501-502(C.C.A.4TH); NUSSER V.
ADERHOLD, 164 F.2D 127(C.C.A.5TH); MAKOWSKI V. BENSON, 158 F.2D
158(C.C.A.6TH); ROSS V. NIERSTHEIMER, 159 F.2D 994(C.C.A.7TH); GUY V.
UTECHT, 144 F.2D 913, 915(C.C.A.8TH); GORDON V. SCUDDER, SUPRA
(C.C.A.9TH); HERZOG V. COLPOYS, 79 U.S. APP. D.C. 81, 143 F.2D 137,
138. 

FN10  CF. DISSENT IN MAGGIO V. ZEITZ, 333 U.S. 56, 81. 

FN11  "AN APPEAL  ...  MAY BE TAKEN ONLY WITHIN NINETY DAYS AFTER THE
JUDGMENT OR SENTENCE APPEALED FROM IS ENTERED, EXCEPT THAT AN APPEAL
FROM BOTH JUDGMENT AND SENTENCE MAY BE TAKEN WITHIN NINETY DAYS AFTER
THE SENTENCE IS ENTERED."  24 FLA. STAT. ANN. SEC. 924.09. 

FN12  FLORIDA PROVIDES TWO DEVICES FOR COLLATERAL ATTACK UPON
CRIMINAL CONVICTIONS:  HABEAS CORPUS AND CORAM NOBIS.  WADE HAS TRIED
HABEAS CORPUS AND FAILED.  WADE V. KIRK, 155 FLA. 906, 23 SO.2D 163. 
CORAM NOBIS IS AVAILABLE ONLY TO BRING TO THE ATTENTION OF THE COURT
SPECIFIC FACTS, EXISTING AT THE TIME OF THE TRIAL, BUT NOT SHOWN BY THE
RECORD AND NOT KNOWN BY THE COURT OR BY THE DEFENDANT OR HIS COUNSEL AT
THE TIME OF THE TRIAL.  LAMB V. STATE, 91 FLA. 396, 107 SO. 535.  SEE
HOUSE V. STATE, 130 FLA. 400, 177 SO. 705; CF. HYSLER V. FLORIDA, 315
U.S. 411, 415-16.  THE FACTS UPON WHICH WADE SEEKS RELIEF WERE KNOWN,
DURING THE COURSE OF THE TRIAL, BOTH TO HIMSELF AND TO THE TRIAL
JUDGE. 

FN13  28 U.S.C. SECS. 451-53.  UNDER THE JUDICIARY ACT OF 1789, THE
WRIT COULD NOT ISSUE IF THE PRISONER WAS HELD UNDER FINAL PROCESS BASED
UPON A JUDGMENT OF A COURT OF COMPETENT JURISDICTION.  EX PARTE
WATKINS, 3 PET. 193.  BY THE ACT OF FEBRUARY 5, 1867, CONGRESS EXPANDED
THE POWER OF THE FEDERAL COURTS TO ISSUE THE WRIT IN SITUATIONS IN
WHICH THE FEDERAL CONSTITUTION HAS BEEN VIOLATED.  14 STAT. 385, CH.
28; SEE HAWK V. OLSON, 326 U.S. 271, 274-75; FRANK V. MANGUM, 237U.S.
309, 330-32. 

FN14  FRANK V. MANGUM, 237 U.S. 309, 331. 

FN15  EX PARTE ROYALL, 117 U.S. 241, 250 ET SEQ." IN RE WOOD, 140
U.S. 278, 290; COOK V. HART, 146 U.S. 183, 195; IN RE FREDERICH, 149
U.S. 70, 75; NEW YORK V. ENO, 155 U.S. 89; IN RE LINCOLN, 202 U.S. 178,
181; URQUHART V. BROWN, 205 U.S. 179; SALINGER V. LOISEL, 265 U.S. 224,
231; GOTO V. LANE, 265 U.S. 393, 403; UNITED STATES EX REL. KENNEDY V.
TYLER, 269 U.S. 13, 17; EX PARTE HAWK, 321 U.S. 114. 

FN16  CONST., ART. VI; ROBB V. CONNOLLY, 111 U.S. 624, 637. 

FN17  BAKER V. GRICE, 169 U.S. 284, 291. 

FN18  SEE FRANK V. MANGUM, 237 U.S. 309, 329; EX PARTE ROYALL, 117
U.S. 241, 247-54; MOONEY V. HOLOHAN, SUPRA. 

FN19  SEE EX PARTE HAWK, 321 U.S. 114, 118. 

FN20  IN RE NEAGLE, 135 U.S. 1; HUNTER V. WOOD, 209 U.S.
205(IMPAIRMENT OF THE FUNCTIONS OF THE FEDERAL COURTS); IN RE LONEY,
134 U.S. 372(IMPAIRMENT OF THE FUNCTIONS OF THE LEGISLATIVE AND
JUDICIAL BRANCHES OF THE FEDERAL GOVERNMENT). 

FN21  BOSKE V. COMINGORE, 177 U.S. 459; OHIO V. THOMAS, 173 U.S.
276. 

FN22  WILDENHUS'S CASE, 120 U.S. 1. 

FN23  SEE STATE V. MARTINEAU, 149 ARK. 237, 232 S.W. 609. 

FN24  MOORE V. DEMPSEY, SUPRA, AT 91. 

FN25  EX PARTE HAWK, SUPRA, AT 116-17. 

FN26  POWELL V. ALABAMA, 287 U.S. 45; URQUHART V. BROWN, 205 U.S.
179. 

FN27  ANDREWS V. SWARTZ, 156 U.S. 272, 276; IN RE WOOD, 140 U.S. 278,
289; EX PARTE SPENCER, 228 U.S. 652.  SEE GLASGOW V. MOYER, 225 U.S.
420, 430; WALEY V. JOHNSTON, 316 U.S. 101, 105; SUNAL V. LARGE, 332
U.S. 174.  BOWEN V. JOHNSTON, 306 U.S. 19, 27:  "THE RULE IS NOT ONE
DEFINING POWER BUT ONE WHICH RELATES TO THE APPROPRIATE EXERCISE OF
POWER." 

FN28  EX PARTE HAWK, SUPRA, 117-18.  SEE ADAMS V. MCCANN, 317 U.S.
269, 274; UNITED STATES EX REL. KENNEDY V. TYLER, 269 U.S. 13, 17. 

FN29  GOTO V. LANE, SUPRA, AT 402.  SEE ALSO URQUHART V. BROWN, 205
U.S. 179; RIDDLE V. DYCHE, 262 U.S. 333; CRAIG V. HECHT, 263 U.S. 255,
277. 

FN30  THE ACT OF APRIL 30, 1900, WHICH ESTABLISHED A GOVERNMENT FOR
THE TERRITORY OF HAWAII, PROVIDED THAT:  "THE LAWS OF THE UNITED STATES
RELATING TO APPEALS, WRITS OF ERROR, REMOVAL OF CAUSES, AND OTHER
MATTERS AND PROCEEDINGS AS BETWEEN THE COURTS OF THE UNITED STATES AND
THE COURTS OF THE SEVERAL STATES SHALL GOVERN IN SUCH MATTERS AND
PROCEEDINGS AS BETWEEN THE COURTS OF THE UNITED STATES AND THE COURTS
OF THE TERRITORY OF HAWAII."  31 STAT. 158.  IN 1925, THE CIRCUIT COURT
OF APPEALS FOR THE NINTH CIRCUIT WAS GIVEN POWER TO REVIEW FINAL
DECISIONS FROM THE SUPREME COURT OF HAWAII IN ALL CRIMINAL CASES "  ...
WHEREIN THE CONSTITUTION OR A STATUTE OR TREATY OF THE UNITED STATES
OR ANY AUTHORITY EXERCISED THEREUNDER IS INVOLVED  ...  "  43 STAT.
936.  THIS POWER IS STILL RETAINED AND CASES FROM THE TERRITORIAL
COURTS NOW COME TO THIS COURT ONLY AFTER THEY HAVE BEEN REVIEWED BY THE
NINTH CIRCUIT COURT OF APPEALS.  28 U.S.C. SEC. 225. 

FN31  SEE ALSO CENTRAL UNION CO. V. EDWARDSVILLE, 269 U.S. 190. 

FN32  IN THIS THE CASE DIFFERS FROM WILLIAMS V. KAISER, 323 U.S. 471,
472; TOMKINS V. MISSOURI, 323 U.S. 485, 486; SMITH V. O'GRADY, 312 U.S.
329, 334. 

FN33  A STATE CAN LEAVE A PROCEDURE OPEN THROUGH ITS OWN COURTS BY
WHICH CONSTITUTIONAL QUESTIONS MAY BE RAISED AT ANY TIME.  IF THE STATE
COURT PASSES UPON THE MERITS, THIS COURT CAN REVIEW THE CONSTITUTIONAL
QUESTION UPON APPEAL OR PETITION FOR CERTIORARI.  HERNDON V. LOWRY, 301
U.S. 242, 247.  SEE LOVELADY V. TEXAS, 333 U.S. 867(CERT.  GRANTED),
ID. 333 U.S. 879(DISMISSED), EX PARTE LOVELADY, - TEX. CR. R. - , 207
S.W.2D 396. 

FN34  I WOULD NOT HERE DECIDE WHETHER OR NOT THIS RULE APPLIES TO
CASES WHICH ARE GOVERNED BY THE PRINCIPLE OF MOORE V. DEMPSEY, SUPRA,
OR TO THE SITUATION IN WHICH A STATE ATTEMPTS TO INTERFERE IMPROPERLY
WITH THE FEDERAL GOVERNMENT. 

FN35  FOR EXAMPLE, IF WADE HAD NOT BEEN ABLE TO OBTAIN COUNSEL UNTIL
TOO LATE FOR AN APPEAL, APPEAL WOULD NOT HAVE BEEN A REMEDY "AVAILABLE"
TO HIM.  SEE PRICE V. JOHNSTON, 334 U.S. 266; DE MEERLEER V. MICHIGAN,
329 U.S. 663; DOWNER V. DUNAWAY, 53 F.2D 586, 589-91. 

THE CHIEF JUSTICE, MR. JUSTICE JACKSON AND MR. JUSTICE BURTON JOIN IN
THIS DISSENT. 
..END :







TRUPIANO V. UNITED STATES, 334 U.S. 699 


NO. 427.  ARGUED MARCH 9, 1948.  - DECIDED JUNE 14, 1948.  - 163 F.2D
828, REVERSED. 


FEDERAL AGENTS WHO HAD KNOWN FOR AT LEAST THREE WEEKS THAT A BUILDING
ON A FARM WAS BEING USED FOR ILLICIT DISTILLING MADE A NIGHTTIME RAID
THEREON WITHOUT A WARRANT OF ARREST OR A SEARCH WARRANT.  THEY WERE LED
ONTO THE FARM AND TO THE BUILDING BY THE OWNER, WHO WAS AN INFORMER. 
THROUGH AN OPEN DOOR THEY SAW ONE OF THE PETITIONERS ENGAGED IN ILLICIT
DISTILLING.  AN AGENT ENTERED, ARRESTED HIM, AND SEIZED THE CONTRABAND
APPARATUS AND MATERIAL.  THE OTHER PETITIONERS WERE ARRESTED LATER. 
CHARGED WITH VIOLATIONS OF FEDERAL REVENUE LAWS, THEY MOVED TO SUPPRESS
THE EVIDENCE AS HAVING BEEN OBTAINED IN VIOLATION OF THE FOURTH
AMENDMENT OF THE FEDERAL CONSTITUTION.  HELD: 

1.  THE ARREST WAS LAWFUL AS AN ARREST OF A PERSON WHO WAS COMMITTING
A FELONY IN THE DISCERNIBLE PRESENCE OF A LAW-ENFORCEMENT OFFICER AT A
PLACE WHERE THE OFFICER WAS LAWFULLY PRESENT.  PP. 700-705. 

(A)  THE ABSENCE OF A WARRANT OF ARREST, EVEN THOUGH THERE WAS
SUFFICIENT TIME TO OBTAIN ONE, DOES NOT INVALIDATE AN ARREST UNDER
THESE CIRCUMSTANCES.  P. 705. 

2.  THE SEIZURE OF THE CONTRABAND PROPERTY WAS IN VIOLATION OF THE
FOURTH AMENDMENT AND NOT JUSTIFIED AS INCIDENT TO THE LAWFUL ARREST. 
PP. 705-710. 

(A)  IN THE CIRCUMSTANCES OF THIS CASE, THERE WAS NO EXCUSE FOR
FAILURE TO OBTAIN A SEARCH WARRANT.  PP. 705-706, 708. 

(B)  THE FACT THAT THE PROPERTY ACTUALLY SEIZED WAS CONTRABAND, WHICH
DOUBTLESS WOULD HAVE BEEN DESCRIBED IN A WARRANT HAD ONE ISSUED, DOES
NOT LEGALIZE THE SEIZURE.  P. 707. 

(C) THE PROXIMITY OF THE CONTRABAND PROPERTY TO THE ARRESTED PERSON
AT THE MOMENT OF HIS ARREST WAS A FORTUITOUS CIRCUMSTANCE INADEQUATE TO
LEGALIZE THE SEIZURE.  PP. 707-708. 

(D)  THE PRESENCE OR ABSENCE OF AN ARRESTEE AT THE EXACT TIME AND
PLACE OF A FORESEEABLE AND ANTICIPATED SEIZURE DOES NOT DETERMINE THE
VALIDITY OF THAT SEIZURE IF IT OCCURS WITHOUT A WARRANT.  P. 708. 

(E)  THE MERE FACT THAT THERE IS A VALID ARREST DOES NOT IPSO FACTO
LEGALIZE A SEARCH OR SEIZURE WITHOUT A WARRANT.  P. 708. 

(F)  HARRIS V. UNITED STATES, 331 U.S. 145, DISTINGUISHED; TAYLOR V.
UNITED STATES, 286 U.S. 1, FOLLOWED.  PP. 708-709. 

3.  PETITIONERS WERE ENTITLED TO HAVE THE UNLAWFULLY SEIZED PROPERTY
SUPPRESSED AS EVIDENCE; BUT, SINCE THE PROPERTY WAS CONTRABAND, THEY
WERE NOT ENTITLED TO HAVE IT RETURNED TO THEM.  P. 710. 

TRUPIANO ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

PETITIONERS, CHARGED WITH VIOLATIONS OF FEDERAL REVENUE LAWS, MOVED
TO SUPPRESS CERTAIN EVIDENCE ALLEGED TO HAVE BEEN ILLEGALLY OBTAINED. 
AN ORDER OF THE DISTRICT COURT DENYING THE MOTION, 70 F.SUPP.  764, WAS
AFFIRMED BY THE CIRCUIT COURT OF APPEALS, 163 F.2D 828.  THIS COURT
GRANTED CERTIORARI.  332 U.S. 841.  REVERSED, P. 710. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE ADDS ANOTHER CHAPTER TO THE BODY OF LAW GROWING OUT OF THE
FOURTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.  THAT
AMENDMENT PROVIDES:  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR
PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON
PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY
DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE
SEIZED."  IN OTHER WORDS, THE FOURTH AMENDMENT IS A RECOGNITION OF THE
FACT THAT IN THIS NATION INDIVIDUAL LIBERTY DEPENDS IN LARGE PART UPON
FREEDOM FROM UNREASONABLE INTRUSION BY THOSE IN AUTHORITY.  IT IS THE
DUTY OF THIS COURT TO GIVE EFFECT TO THAT FREEDOM. 

IN JANUARY, 1946, THE PETITIONERS SOUGHT TO LEASE PART OF THE KELL
FARM IN MONMOUTH COUNTY, NEW JERSEY, AND TO ERECT A BUILDING THEREON. 
KELL SUSPECTED THAT THEY INTENDED TO BUILD AND OPERATE AN ILLEGAL
STILL.  HE ACCORDINGLY REPORTED THE MATTER TO THE APPROPRIATE FEDERAL
AUTHORITY, THE ALCOHOL TAX UNIT OF THE BUREAU OF INTERNAL REVENUE.  THE
FEDERAL AGENTS TOLD KELL TO ACCEPT THE PROPOSITION, PROVIDED HE DID
NOTHING TO ENTICE OR ENCOURAGE THE PETITIONERS INTO GOING AHEAD WITH
THEIR PLANS AND PROVIDED HE KEPT THE AGENTS INFORMED OF ALL
DEVELOPMENTS.  NILSEN, ONE OF THE AGENTS, WAS ASSIGNED IN FEBRUARY TO
WORK ON THE FARM IN THE DISGUISE OF A "DUMB FARM HAND" AND TO ACCEPT
WORK AT THE STILL IF PETITIONERS SHOULD OFFER IT. 

TOWARD THE END OF MARCH, 1946, KELL AGREED WITH PETITIONERS TO LET
THEM RENT PART OF HIS FARM FOR $300 A MONTH.  KELL AND NILSEN ASSISTED
PETITIONERS IN THE ERECTION OF THE BUILDING, A ROUGHLY CONSTRUCTED BARN
ABOUT 200 YARDS FROM THE KELL FARMHOUSE.  NILSEN ALSO ASSISTED IN THE
ERECTION OF THE STILL AND THE VATS. 

OPERATION OF THE STILL BEGAN ABOUT MAY 13, 1946.  NILSEN THEREAFTER
WORKED AS "MASH MAN" AT A SALARY OF $100 A WEEK, WHICH HE TURNED OVER
TO THE GOVERNMENT.  DURING THIS PERIOD HE WAS IN CONSTANT COMMUNICATION
WITH HIS FELLOW AGENTS.  BY PREARRANGEMENT, HE WOULD MEET ONE OR MORE
OF THE AGENTS AT VARIOUS PLACES WITHIN A FEW MILES OF THE KELL FARM; AT
THESE MEETINGS "THE CONVERSATION WOULD BE ABOUT THE STILL BUILDING I
HAD ASSISTED IN ERECTING OR ABOUT THE ILLICIT DISTILLERY THAT I WAS
WORKING AT ON THE KELL FARM."  ON MAY 20 HE MET WITH ONE OF HIS
SUPERIOR OFFICERS AND GAVE HIM SAMPLES OF ALCOHOL, SEVERAL SUGAR BAGS,
A YEAST WRAPPER AND AN EMPTY FIVE-GALLON CAN WHICH HAD BEEN TAKEN FROM
THE STILL PREMISES. 

ON MAY 26 NILSEN RECEIVED A TWO-WAY PORTABLE RADIO SET FROM HIS
SUPERIORS.  HE USED THIS SET TO TRANSMIT FREQUENT BULLETINS ON THE
ACTIVITIES OF THE PETITIONERS.  ON THE BASIS OF RADIO INTELLIGENCE
SUPPLIED BY NILSEN, A TRUCKLOAD OF ALCOHOL WAS SEIZED ON MAY 31 ABOUT
AN HOUR AFTER IT HAD LEFT THE FARM. 

AT ABOUT 9 P.M. IN THE EVENING OF JUNE 3, 1946, NILSEN RADIOED HIS
SUPERIOR THAT THE STILL OPERATORS WERE AWAITING THE ARRIVAL OF A LOAD
OF SUGAR AND THAT ALCOHOL WAS TO BE TAKEN FROM THE FARM WHEN THE SUGAR
TRUCK ARRIVED.  NILSEN APPARENTLY KNEW THEN THAT A RAID WAS SCHEDULED
FOR THAT NIGHT, FOR HE TOLD KELL DURING THE EVENING THAT "TONIGHT IS
THE NIGHT."  HE RADIOED AT 11 P.M. THAT THE TRUCK HAD BEEN DELAYED BUT
THAT PETITIONERS ROETT AND ANTONIOLE WERE AT THE STILL. 

THREE FEDERAL AGENTS THEN DROVE TO WITHIN THREE MILES OF THE FARM, AT
WHICH POINT THEY WERE MET BY KELL.  THE REMAINDER OF THE DISTANCE WAS
TRAVERSED IN KELL'S AUTOMOBILE.  THEY ARRIVED AT THE FARM AT ABOUT
11:45 P.M.  THE AGENTS STATED THAT THE ODOR OF FERMENTING MASH AND THE
SOUND OF A GASOLINE MOTOR WERE NOTICEABLE AS THE CAR WAS DRIVEN ONTO
THE FARM PREMISES; THE ODOR BECAME STRONGER AND THE NOISE LOUDER AS
THEY ALIGHTED FROM THE CAR AND APPROACHED THE BUILDING CONTAINING THE
STILL.  VAN DE CAR, ONE OF THE AGENTS, WENT AROUND ONE END OF THE
BUILDING.  LOOKING THROUGH AN OPEN DOOR INTO A DIMLY LIGHTED INTERIOR
HE COULD SEE A STILL COLUMN, A BOILER AND A GASOLINE PUMP IN
OPERATION.  HE ALSO SAW ANTONIOLE BENDING DOWN NEAR THE PUMP.  HE
ENTERED THE BUILDING AND PLACED ANTONIOLE UNDER ARREST.  THEREUPON HE
"SEIZED THE ILLICIT DISTILLERY." 

AFTER THIS ARREST AND SEIZURE, VAN DE CAR LOOKED ABOUT FURTHER AND
OBSERVED A LARGE NUMBER OF FIVE-GALLON CANS WHICH HE LATER FOUND TO
CONTAIN ALCOHOL AND SOME VATS WHICH CONTAINED FERMENTING MASH.  ANOTHER
AGENT, CASEY, TESTIFIED THAT HE COULD SEE SEVERAL OF THESE CANS THROUGH
THE OPEN DOOR BEFORE HE ENTERED; HE SUBSEQUENTLY COUNTED THE CANS AND
FOUND THAT THERE WERE 262 OF THEM.  AFTER HE ENTERED HE SAW THE
REMAINDER OF THE DISTILLERY EQUIPMENT, INCLUDING FOUR LARGE MASH VATS. 
THE THIRD AGENT, GETTEL, PROCEEDED TO A SMALL TRUCK STANDING IN THE
YARD AND "SEARCHED IT THOROUGHLY FOR PAPERS AND THINGS OF AN
EVIDENTIARY NATURE."  IT DOES NOT APPEAR WHETHER HE WAS SUCCESSFUL IN
HIS SEARCH OR WHETHER HE TOOK ANYTHING FROM THE TRUCK. 

A FEW MINUTES LATER ROETT WAS ARRESTED OUTSIDE THE BUILDING. 
PETITIONERS TRUPIANO AND RICCARDELLI APPARENTLY WERE ARRESTED LATER
THAT NIGHT BY OTHER AGENTS, THE PLACE AND THE CIRCUMSTANCES NOT BEING
REVEALED BY THE RECORD BEFORE US.  IN ADDITION, THREE OTHER PERSONS
WERE ARRESTED THAT NIGHT BECAUSE OF THEIR CONNECTIONS WITH THE ILLEGAL
OPERATIONS; ONE OF THEM, WHO WAS UNKNOWN TO NILSEN, WAS ARRESTED WHEN
HE ARRIVED AT THE FARM WITH A TRUCK LOADED WITH COKE. 

THE AGENTS ENGAGED IN THIS RAID WITHOUT SECURING A SEARCH WARRANT OR
WARRANTS OF ARREST.  IT IS UNDENIED THAT THEY HAD MORE THAN ADEQUATE
OPPORTUNITY TO OBTAIN SUCH WARRANTS BEFORE THE RAID OCCURRED, VARIOUS
FEDERAL JUDGES AND COMMISSIONERS BEING READILY AVAILABLE. 

ALL OF THE PERSONS ARRESTED WERE CHARGED WITH VARIOUS VIOLATIONS OF
THE INTERNAL REVENUE CODE ARISING OUT OF THEIR OWNERSHIP AND OPERATION
OF THE DISTILLERY.  PRIOR TO THE RETURN OF AN INDICTMENT AGAINST THEM,
THE FOUR PETITIONERS FILED IN THE DISTRICT COURT FOR THE DISTRICT OF
NEW JERSEY A MOTION ALLEGING THAT THE FEDERAL AGENTS HAD ILLEGALLY
SEIZED "A STILL, ALCOHOL, MASH AND OTHER EQUIPMENT," AND ASKING THAT
"ALL SUCH EVIDENCE" BE EXCLUDED AND SUPPRESSED AT ANY TRIAL AND THAT
"ALL OF THE AFORESAID PROPERTY" BE RETURNED.  THE DISTRICT COURT DENIED
THE MOTION AFTER A HEARING, HOLDING THAT THE SEIZURE WAS REASONABLE AND
HENCE CONSTITUTIONAL.  70 F.SUPP.  764.  THE CIRCUIT COURT OF APPEALS
FOR THE THIRD CIRCUIT AFFIRMED PER CURIAM THE ORDER OF THE DISTRICT
COURT.  163 F.2D 828. 

THUS WE HAVE A CASE WHERE CONTRABAND PROPERTY WAS SEIZED BY FEDERAL
AGENTS WITHOUT A SEARCH WARRANT UNDER CIRCUMSTANCES WHERE SUCH A
WARRANT COULD EASILY HAVE BEEN OBTAINED.  THE GOVERNMENT, HOWEVER,
CLAIMS THAT THE FAILURE TO SECURE THE WARRANT HAS NO EFFECT UPON THE
VALIDITY OF THE SEIZURE.  REFERENCE IS MADE TO THE WELL ESTABLISHED
RIGHT OF LAW ENFORCEMENT OFFICERS TO ARREST WITHOUT A WARRANT FOR A
FELONY COMMITTED IN THEIR PRESENCE, CARROLL V. UNITED STATES, 267 U.S.
132, 156-157, A RIGHT SAID TO BE UNAFFECTED BY THE FACT THAT THERE MAY
HAVE BEEN ADEQUATE TIME TO PROCURE A WARRANT OF ARREST.  SINCE ONE OF
THE PETITIONERS, ANTONIOLE, WAS ARRESTED WHILE ENGAGED IN OPERATING AN
ILLEGAL STILL IN THE PRESENCE OF AGENTS OF THE ALCOHOL TAX UNIT, HIS
ARREST WAS VALID UNDER THIS VIEW EVEN THOUGH IT OCCURRED WITHOUT THE
BENEFIT OF A WARRANT.  AND SINCE THIS ARREST WAS VALID, THE ARGUMENT IS
MADE THAT THE SEIZURE OF THE CONTRABAND OPEN TO VIEW AT THE TIME OF THE
ARREST WAS ALSO LAWFUL.  RELIANCE IS HERE PLACED ON THE LONG LINE OF
CASES RECOGNIZING THAT AN ARRESTING OFFICER MAY LOOK AROUND AT THE TIME
OF THE ARREST AND SEIZE THOSE FRUITS AND EVIDENCES OF CRIME OR THOSE
CONTRABAND ARTICLES WHICH ARE IN PLAIN SIGHT AND IN HIS IMMEDIATE AND
DISCERNIBLE PRESENCE.  WEEKS V. UNITED STATES, 232 U.S. 383, 392;
CARROLL V. UNITED STATES, SUPRA, 158; AGNELLO V. UNITED STATES, 269
U.S. 20, 30; UNITED STATES V. LEE, 274 U.S. 559, 563; MARRON V. UNITED
STATES, 275 U.S. 192, 198-199; GO-BART CO. V. UNITED STATES, 282 U.S.
344, 358; UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 465; HARRIS V.
UNITED STATES, 331 U.S. 145, 150-151. 

WE SUSTAIN THE GOVERNMENT'S CONTENTION THAT THE ARREST OF ANTONIOLE
WAS VALID.  THE FEDERAL AGENTS HAD MORE THAN ADEQUATE CAUSE, BASED UPON
THE INFORMATION SUPPLIED BY NILSEN, TO SUSPECT THAT ANTONIOLE WAS
ENGAGED IN FELONIOUS ACTIVITIES ON THE FARM PREMISES.  ACTING ON THAT
SUSPICION, THE AGENTS WENT TO THE FARM AND ENTERED ONTO THE PREMISES
WITH THE CONSENT OF KELL, THE OWNER.  THERE ANTONIOLE WAS SEEN THROUGH
AN OPEN DOORWAY BY ONE OF THE AGENTS TO BE OPERATING AN ILLEGAL STILL,
AN ACT FELONIOUS IN NATURE.  HIS ARREST WAS THEREFORE VALID ON THE
THEORY THAT HE WAS COMMITTING A FELONY IN THE DISCERNIBLE PRESENCE OF
AN AGENT OF THE ALCOHOL TAX UNIT, A PEACE OFFICER OF THE UNITED
STATES.  THE ABSENCE OF A WARRANT OF ARREST, EVEN THOUGH THERE WAS
SUFFICIENT TIME TO OBTAIN ONE, DOES NOT DESTROY THE VALIDITY OF AN
ARREST UNDER THESE CIRCUMSTANCES.  WARRANTS OF ARREST ARE DESIGNED TO
MEET THE DANGERS OF UNLIMITED AND UNREASONABLE ARRESTS OF PERSONS WHO
ARE NOT AT THE MOMENT COMMITTING ANY CRIME.  THOSE DANGERS, OBVIOUSLY,
ARE NOT PRESENT WHERE A FELONY PLAINLY OCCURS BEFORE THE EYES OF AN
OFFICER OF THE LAW AT A PLACE WHERE HE IS LAWFULLY PRESENT.  COMMON
SENSE THEN DICTATES THAT AN ARREST IN THAT SITUATION IS VALID DESPITE
THE FAILURE TO OBTAIN A WARRANT OF ARREST. 

BUT WE CANNOT AGREE THAT THE SEIZURE OF THE CONTRABAND PROPERTY WAS
MADE IN CONFORMITY WITH THE REQUIREMENTS OF THE FOURTH AMENDMENT.  IT
IS A CARDINAL RULE THAT, IN SEIZING GOODS AND ARTICLES, LAW ENFORCEMENT
AGENTS MUST SECURE AND USE SEARCH WARRANTS WHEREVER REASONABLY
PRACTICABLE.  CARROLL V. UNITED STATES, SUPRA, 156; GO-BART CO. V.
UNITED STATES, SUPRA, 358; TAYLOR V. UNITED STATES, 286 U.S. 1, 6;
JOHNSON V. UNITED STATES, 333 U.S. 10, 14-15.  THIS RULE RESTS UPON THE
DESIRABILITY OF HAVING MAGISTRATES RATHER THAN POLICE OFFICERS
DETERMINE WHEN SEARCHES AND SEIZURES ARE PERMISSIBLE AND WHAT
LIMITATIONS SHOULD BE PLACED UPON SUCH ACTIVITIES.  UNITED STATES V.
LEFKOWITZ, SUPRA, 464.  IN THEIR UNDERSTANDABLE ZEAL TO FERRET OUT
CRIME AND IN THE EXCITEMENT OF THE CAPTURE OF A SUSPECTED PERSON,
OFFICERS ARE LESS LIKELY TO POSSESS THE DETACHMENT AND NEUTRALITY WITH
WHICH THE CONSTITUTIONAL RIGHTS OF THE SUSPECT MUST BE VIEWED.  TO
PROVIDE THE NECESSARY SECURITY AGAINST UNREASONABLE INTRUSIONS UPON THE
PRIVATE LIVES OF INDIVIDUALS, THE FRAMERS OF THE FOURTH AMENDMENT
REQUIRED ADHERENCE TO JUDICIAL PROCESSES WHEREEVER POSSIBLE.  AND
SUBSEQUENT HISTORY HAS CONFIRMED THE WISDOM OF THAT REQUIREMENT. 

THE FACTS OF THIS CASE DO NOT MEASURE UP TO THE FOREGOING STANDARD. 
THE AGENTS OF THE ALCOHOL TAX UNIT KNEW EVERY DETAIL OF THE
CONSTRUCTION AND OPERATION OF THE ILLEGAL DISTILLERY LONG BEFORE THE
RAID WAS MADE.  ONE OF THEM WAS ASSIGNED TO WORK ON THE FARM ALONG WITH
THE ILLICIT OPERATORS, MAKING IT POSSIBLE FOR HIM TO SECURE AND REPORT
THE MINUTEST FACTS.  IN COOPERATION WITH THE FARM OWNER, WHO SERVED AS
AN INFORMER, THIS AGENT WAS IN A POSITION TO SUPPLY INFORMATION WHICH
COULD EASILY HAVE FORMED THE BASIS FOR A DETAILED AND EFFECTIVE SEARCH
WARRANT.  CONCEDEDLY, THERE WAS AN ABUNDANCE OF TIME DURING WHICH SUCH
A WARRANT COULD HAVE BEEN SECURED, EVEN ON THE NIGHT OF THE RAID AFTER
THE ODOR AND NOISE OF THE DISTILLERY CONFIRMED THEIR EXPECTATIONS.  AND
THE PROPERTY WAS NOT OF A TYPE THAT COULD HAVE BEEN DISMANTLED AND
REMOVED BEFORE THE AGENTS HAD TIME TO SECURE A WARRANT; ESPECIALLY IS
THIS SO SINCE ONE OF THEM WAS ON HAND AT ALL TIMES TO REPORT AND GUARD
AGAINST SUCH A MOVE.  SEE UNITED STATES V. KAPLAN, 89 F.2D 869, 871. 

WHAT WAS SAID IN JOHNSON V. UNITED STATES, SUPRA, 15, IS EQUALLY
APPLICABLE HERE:  "NO REASON IS OFFERED FOR NOT OBTAINING A SEARCH
WARRANT EXCEPT THE INCONVENIENCE TO THE OFFICERS AND SOME SLIGHT DELAY
NECESSARY TO PREPARE PAPERS AND PRESENT THE EVIDENCE TO A MAGISTRATE. 
THESE ARE NEVER VERY CONVINCING REASONS AND, IN THESE CIRCUMSTANCES,
CERTAINLY ARE NOT ENOUGH TO BY-PASS THE CONSTITUTIONAL REQUIREMENT. 
...  IF THE OFFICERS IN THIS CASE WERE EXCUSED FROM THE CONSTITUTIONAL
DUTY OF PRESENTING THEIR EVIDENCE TO A MAGISTRATE, IT IS DIFFICULT TO
THINK OF A CASE IN WHICH IT SHOULD BE REQUIRED." 

AND SO WHEN THE AGENTS OF THE ALCOHOL TAX UNIT DECIDED TO DISPENSE
WITH A SEARCH WARRANT AND TO TAKE MATTERS INTO THEIR OWN HANDS, THEY
DID PRECISELY WHAT THE FOURTH AMENDMENT WAS DESIGNED TO OUTLAW. 
UNINHIBITED BY ANY LIMITATIONS THAT MIGHT HAVE BEEN CONTAINED IN A
WARRANT, THEY DESCENDED UPON THE DISTILLERY IN A MIDNIGHT RAID. 
NOTHING CIRCUMSCRIBED THEIR ACTIVITIES ON THAT RAID EXCEPT THEIR OWN
GOOD SENSES, WHICH THE AUTHORS OF THE AMENDMENT DEEMED INSUFFICIENT TO
JUSTIFY A SEARCH OR SEIZURE EXCEPT IN EXCEPTIONAL CIRCUMSTANCES NOT
HERE PRESENT.  THE LIMITLESS POSSIBILITIES AFFORDED BY THE ABSENCE OF A
WARRANT WERE EPITOMIZED BY THE ONE AGENT WHO ADMITTED SEARCHING
"THOROUGHLY" A SMALL TRUCK PARKED IN THE FARMYARD FOR ITEMS OF AN
EVIDENTIARY CHARACTER.  THE FACT THAT THEY ACTUALLY SEIZED ONLY
CONTRABAND PROPERTY, WHICH WOULD DOUBTLESS HAVE BEEN DESCRIBED IN A
WARRANT HAD ONE BEEN ISSUED, DOES NOT DETRACT FROM THE ILLEGALITY OF
THE SEIZURE.  SEE AMOS V. UNITED STATES, 255 U.S. 313; BYARS V. UNITED
STATES, 273 U.S. 28; TAYLOR V. UNITED STATES, SUPRA.    MOREOVER, THE
PROXIMITY OF THE CONTRABAND PROPERTY TO THE PERSON OF ANTONIOLE AT THE
MOMENT OF HIS ARREST WAS A FORTUITOUS CIRCUMSTANCE WHICH WAS INADEQUATE
TO LEGALIZE THE SEIZURE.  AS WE HAVE SEEN, THE EXISTENCE OF THIS
PROPERTY AND THE DESIRABILITY OF SEIZING IT WERE KNOWN TO THE AGENTS
LONG BEFORE THE SEIZURE AND FORMED ONE OF THE MAIN PURPOSES OF THE
RAID.  LIKEWISE, THE ARREST OF ANTONIOLE AND THE OTHER PETITIONERS IN
CONNECTION WITH THE ILLICIT OPERATIONS WAS A FORESEEABLE EVENT
MOTIVATING THE RAID.  BUT THE PRECISE LOCATION OF THE PETITIONERS AT
THE TIME OF THEIR ARREST HAD NO RELATION TO THE FORESEEABILITY OR
NECESSITY OF THE SEIZURE.  THE PRACTICABILITY OF OBTAINING A SEARCH
WARRANT DID NOT TURN UPON WHETHER ANTONIOLE AND THE OTHERS WERE WITHIN
THE DISTILLERY BUILDING WHEN ARRESTED OR UPON WHETHER THEY WERE THEN
ENGAGED IN OPERATING THE ILLICIT EQUIPMENT.  ANTONIOLE JUST HAPPENED TO
BE WORKING AMID THE CONTRABAND SURROUNDINGS AT 11:45 P.M. ON THE NIGHT
IN QUESTION, WHILE THE OTHER THREE PETITIONERS CHANCED TO BE SOME PLACE
ELSE.  BUT ANTONIOLE MIGHT WELL HAVE BEEN OUTSIDE THE BUILDING AT THAT
PARTICULAR TIME.  IF THAT HAD BEEN THE CASE AND HE HAD BEEN ARRESTED IN
THE FARMYARD, THE ENTIRE ARGUMENT ADVANCED BY THE GOVERNMENT IN SUPPORT
OF THE SEIZURE WITHOUT WARRANT WOULD COLLAPSE.  WE DO NOT BELIEVE THAT
THE APPLICABILITY OF THE FOURTH AMENDMENT TO THE FACTS OF THIS CASE
DEPENDS UPON SUCH A FORTUITOUS FACTOR AS THE PRECISE LOCATION OF
ANTONIOLE AT THE TIME OF THE RAID. 

IN OTHER WORDS, THE PRESENCE OR ABSENCE OF AN ARRESTEE AT THE EXACT
TIME AND PLACE OF A FORESEEABLE AND ANTICIPATED SEIZURE DOES NOT
DETERMINE THE VALIDITY OF THAT SEIZURE IF IT OCCURS WITHOUT A WARRANT. 
RATHER THE TEST IS THE APPARENT NEED FOR SUMMARY SEIZURE, A TEST WHICH
CLEARLY IS NOT SATISFIED BY THE FACTS BEFORE US. 

A SEARCH OR SEIZURE WITHOUT A WARRANT AS AN INCIDENT TO A LAWFUL
ARREST HAS ALWAYS BEEN CONSIDERED TO BE A STRICTLY LIMITED RIGHT.  IT
GROWS OUT OF THE INHERENT NECESSITIES OF THE SITUATION AT THE TIME OF
THE ARREST.  BUT THERE MUST BE SOMETHING MORE IN THE WAY OF NECESSITY
THAN MERELY A LAWFUL ARREST.  THE MERE FACT THAT THERE IS A VALID
ARREST DOES NOT IPSO FACTO LEGALIZE A SEARCH OR SEIZURE WITHOUT A
WARRANT.  CARROLL V. UNITED STATES, SUPRA, 158.  OTHERWISE THE
EXCEPTION SWALLOWS THE GENERAL PRINCIPLE, MAKING A SEARCH WARRANT
COMPLETELY UNNECESSARY WHEREVER THERE IS A LAWFUL ARREST.  AND SO THERE
MUST BE SOME OTHER FACTOR IN THE SITUATION THAT WOULD MAKE IT
UNREASONABLE OR IMPRACTICABLE TO REQUIRE THE ARRESTING OFFICER TO EQUIP
HIMSELF WITH A SEARCH WARRANT.  IN THE CASE BEFORE US, HOWEVER, NO
REASON WHATEVER HAS BEEN SHOWN WHY THE ARRESTING OFFICERS COULD NOT
HAVE ARMED THEMSELVES DURING ALL THE WEEKS OF THEIR SURVEILLANCE OF THE
LOCUS WITH A DULY OBTAINED SEARCH WARRANT - NO REASON, THAT IS, EXCEPT
INDIFFERENCE TO THE LEGAL PROCESS FOR SEARCH AND SEIZURE WHICH THE
CONSTITUTION CONTEMPLATED. 

WE DO NOT TAKE OCCASION HERE TO REEXAMINE THE SITUATION INVOLVED IN
HARRIS V. UNITED STATES, SUPRA.  THE INSTANT CASE RELATES ONLY TO THE
SEIZURE OF CONTRABAND THE EXISTENCE AND PRECISE NATURE AND LOCATION OF
WHICH THE LAW ENFORCEMENT OFFICERS WERE AWARE LONG BEFORE MAKING THE
LAWFUL ARREST.  THAT CIRCUMSTANCE WAS WHOLLY LACKING IN THE HARRIS
CASE, WHICH WAS CONCERNED WITH THE PERMISSIBLE SCOPE OF A GENERAL
SEARCH WITHOUT A WARRANT AS AN INCIDENT TO A LAWFUL ARREST.  MOREOVER,
THE HARRIS CASE DEALT WITH THE SEIZURE OF GOVERNMENT PROPERTY WHICH
COULD NOT HAVE BEEN THE SUBJECT OF A PRIOR SEARCH WARRANT, IT HAVING
BEEN FOUND UNEXPECTEDLY DURING THE COURSE OF A SEARCH.  IN CONTRAST,
THE CONTRABAND SEIZED IN THIS CASE COULD EASILY HAVE BEEN SPECIFIED IN
A PRIOR SEARCH WARRANT.  THESE FACTUAL DIFFERENCES MAY OR MAY NOT BE OF
SIGNIFICANCE SO FAR AS GENERAL PRINCIPLES ARE CONCERNED.  BUT THE
DIFFERENCES ARE ENOUGH TO JUSTIFY CONFINING OURSELVES TO THE PRECISE
FACTS OF THIS CASE, LEAVING IT TO ANOTHER DAY TO TEST THE HARRIS
SITUATION BY THE RULE THAT SEARCH WARRANTS ARE TO BE OBTAINED AND USED
WHEREVER REASONABLY PRACTICABLE. 

WHAT WE HAVE HERE IS A SET OF FACTS GOVERNED BY A PRINCIPLE
INDISTINGUISHABLE FROM THAT RECOGNIZED AND APPLIED IN TAYLOR V. UNITED
STATES, SUPRA.  THE COURT THERE HELD THAT THE SEIZURE OF ILLICIT
WHISKEY WAS UNREASONABLE, HOWEVER WELL-GROUNDED THE SUSPICIONS OF THE
FEDERAL AGENTS, WHERE THERE WAS AN ABUNDANT OPPORTUNITY TO OBTAIN A
SEARCH WARRANT AND TO PROCEED IN AN ORDERLY, JUDICIAL WAY.  TRUE, THE
TAYLOR CASE DID NOT INVOLVE A SEIZURE IN CONNECTION WITH AN ARREST. 
AND THE OFFICERS THERE MADE AN UNLAWFUL ENTRY ONTO THE PREMISES.  BUT
THOSE FACTORS HAD NO RELATION TO THE PRACTICABILITY OF OBTAINING A
SEARCH WARRANT BEFORE MAKING THE SEIZURE.  IT WAS THE TIME ELEMENT AND
THE FORESEEABILITY OF THE NEED FOR A SEARCH AND SEIZURE THAT MADE THE
WARRANT ESSENTIAL.  THE TAYLOR CASE ACCORDINGLY MAKES PLAIN THE
ILLEGALITY OF THE SEIZURE IN THE INSTANT PROCEEDING. 

THE FOURTH AMENDMENT WAS DESIGNED TO PROTECT BOTH THE INNOCENT AND
THE GUILTY FROM UNREASONABLE INTRUSIONS UPON THEIR RIGHT OF PRIVACY
WHILE LEAVING ADEQUATE ROOM FOR THE NECESSARY PROCESS OF LAW
ENFORCEMENT.  THE PEOPLE OF THE UNITED STATES INSISTED ON WRITING THE
FOURTH AMENDMENT INTO THE CONSTITUTION BECAUSE SAD EXPERIENCE HAD
TAUGHT THEM THAT THE RIGHT TO SEARCH AND SEIZE SHOULD NOT BE LEFT TO
THE MERE DISCRETION OF THE POLICE, BUT SHOULD AS A MATTER OF PRINCIPLE
BE SUBJECTED TO THE REQUIREMENT OF PREVIOUS JUDICIAL SANCTION WHEREVER
POSSIBLE.  THE EFFECTIVE OPERATION OF GOVERNMENT, HOWEVER, COULD HARDLY
BE EMBARRASSED BY THE REQUIREMENT THAT ARRESTING OFFICERS WHO HAVE
THREE WEEKS OR MORE WITHIN WHICH TO SECURE THE AUTHORIZATION OF
JUDICIAL AUTHORITY FOR MAKING SEARCH AND SEIZURE SHOULD SECURE SUCH
AUTHORITY AND NOT BE LEFT TO THEIR OWN DISCRETION AS TO WHAT IS TO BE
SEARCHED AND WHAT IS TO BE SEIZED.  SUCH A REQUIREMENT PARTAKES OF THE
VERY ESSENCE OF THE ORDERLY AND EFFECTIVE ADMINISTRATION OF THE LAW. 

IT IS A MISTAKE TO ASSUME THAT A SEARCH WARRANT IN THESE
CIRCUMSTANCES WOULD CONTRIBUTE NOTHING TO THE PRESERVATION OF THE
RIGHTS PROTECTED BY THE FOURTH AMENDMENT.  A SEARCH WARRANT MUST
DESCRIBE WITH PARTICULARITY THE PLACE TO BE SEARCHED AND THE THINGS TO
BE SEIZED.  WITHOUT SUCH A WARRANT, HOWEVER, OFFICERS ARE FREE TO
DETERMINE FOR THEMSELVES THE EXTENT OF THEIR SEARCH AND THE PRECISE
OBJECTS TO BE SEIZED.  THIS IS NO SMALL DIFFERENCE.  IT IS A DIFFERENCE
UPON WHICH DEPENDS MUCH OF THE POTENCY OF THE RIGHT OF PRIVACY.  AND IT
IS A DIFFERENCE THAT MUST BE PRESERVED EVEN WHERE CONTRABAND ARTICLES
ARE SEIZED IN CONNECTION WITH A VALID ARREST. 

IT FOLLOWS THAT IT WAS ERROR TO REFUSE PETITIONERS' MOTION TO EXCLUDE
AND SUPPRESS THE PROPERTY WHICH WAS IMPROPERLY SEIZED.  BUT SINCE THIS
PROPERTY WAS CONTRABAND, THEY HAVE NO RIGHT TO HAVE IT RETURNED TO
THEM.  REVERSED. 

MR. CHIEF JUSTICE VINSON, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
REED AND MR. JUSTICE BURTON CONCUR, DISSENTING. 

FEDERAL OFFICERS, FOLLOWING A LAWFUL ARREST, SEIZED CONTRABAND
MATERIALS WHICH WERE BEING EMPLOYED IN OPEN VIEW IN VIOLATION AND
DEFIANCE OF THE LAWS OF THE LAND.  TODAY, THE COURT FOR THE FIRST TIME
HAS BRANDED SUCH A SEIZURE ILLEGAL.  NOTHING IN THE EXPLICIT LANGUAGE
OF THE FOURTH AMENDMENT DICTATES THAT RESULT.  NOR IS THAT HOLDING
SUPPORTED BY ANY DECISION OF THIS COURT. 

THE MATERIAL FACTS ARE NOT IN DISPUTE.  IN JANUARY, 1946, CERTAIN OF
THE PETITIONERS APPROACHED ONE KELL OFFERING TO RENT A PORTION OF THE
LATTER'S FARM ON WHICH A BUILDING WAS TO BE ERECTED.  HIS SUSPICIONS
AROUSED, KELL REPORTED THE MATTER TO AGENTS OF THE ALCOHOL TAX UNIT OF
THE BUREAU OF INTERNAL REVENUE.  HE WAS ADVISED THAT THE OFFER COULD BE
ACCEPTED PROVIDED THAT NOTHING WAS DONE TO ENTICE PETITIONERS INTO
COMPLETION OF THEIR PLANS.  AN AGENT, NILSEN, WAS ASSIGNED TO THE FARM
TO ACT THE PART OF A FARM HAND IN THE EMPLOY OF KELL. 

ULTIMATELY, AN AGREEMENT WAS ENTERED INTO WHEREBY KELL RENTED A
PORTION OF HIS FARM TO PETITIONERS AT $300 A MONTH.  PETITIONERS, WITH
THE ASSISTANCE OF KELL AND NILSEN, CONSTRUCTED A BARN-LIKE STRUCTURE
SOME TWO HUNDRED YARDS FROM THE FARMHOUSE.  A STILL AND VATS WERE
INSTALLED.  AFTER THE STILL BEGAN OPERATION, NILSEN ACTED AS A "MASH
MAN" RECEIVING A SALARY OF $100 A WEEK FROM PETITIONERS.  ALL SUMS
RECEIVED BY NILSEN WERE TURNED OVER TO THE FEDERAL GOVERNMENT. 

THROUGHOUT THIS PERIOD, NILSEN REPORTED REGULARLY TO HIS SUPERIORS. 
AS A RESULT OF THIS INFORMATION, FEDERAL AGENTS ON MAY 31, 1946, SEIZED
A TRUCKLOAD OF ALCOHOL ABOUT AN HOUR AFTER IT HAD LEFT THE KELL FARM. 

THE NIGHT OF JUNE 3, 1946, WAS CHOSEN BY THE AGENTS TO CONDUCT THEIR
RAID.  KELL COOPERATED FULLY WITH THE OFFICERS AND DROVE THREE OF THE
AGENTS TO THE FARM IN HIS OWN CAR.  AS THE CAR ENTERED THE FARM
PREMISES, THE ODOR OF FERMENTING MASH AND THE SOUND OF A GASOLINE MOTOR
BECAME APPARENT.  WHEN THE AGENTS ALIGHTED FROM THE CAR IT WAS OBVIOUS
THAT THE SOUND AND THE ODOR WERE EMANATING FROM THE BUILDING IN WHICH
THE STILL WAS LOCATED.  ONE OF THE AGENTS APPROACHED THE STRUCTURE AND
THROUGH AN OPEN DOOR OBSERVED A STILL AND A BOILER.  HE ALSO SAW THE
PETITIONER ANTONIOLE BENDING OVER A GASOLINE PUMP.  THE AGENT ENTERED
THE BUILDING AND PLACED ANTONIOLE UNDER ARREST ON THE THEORY THAT A
CRIME WAS BEING COMMITTED IN HIS PRESENCE.  SUBSEQUENTLY, THE AGENT
SEIZED THE STILL, MASH VATS CONTAINING FERMENTING MASH, OTHER
DISTILLERY EQUIPMENT, AND 262 FIVE-GALLON CANS CONTAINING ILLICIT
ALCOHOL.  NEITHER THE ARREST NOR THE SEIZURE WAS EFFECTED UNDER THE
AUTHORITY OF A WARRANT.  LATER SIX OTHER PERSONS WERE ARRESTED,
INCLUDING THREE OF THE PETITIONERS IN THIS CASE.  FN1 

THERE CAN BE NO DOUBT THAT THE ACTIVITIES OF PETITIONERS WERE IN
FLAGRANT VIOLATION OF THE LAWS OF THE UNITED STATES.  FN2  IT IS CLEAR,
ALSO, THAT THE MATERIALS SEIZED CONSISTED OF INSTRUMENTALITIES USED BY
PETITIONERS IN THEIR CRIMINAL ENTERPRISE AND CONTRABAND GOODS,
POSSESSION OF WHICH IS A CRIME.  THE MATERIALS AND OBJECTS FALLING INTO
THE CONTROL OF THE FEDERAL AGENTS, THEREFORE, WERE OF THE TYPE PROPERLY
SUBJECT TO LAWFUL SEIZURE.  FN3 

FURTHER, IT IS OBVIOUS THAT ENTRY OF THE FEDERAL AGENTS ONTO THE FARM
PREMISES WAS IN NO SENSE TRESPASSORY OR OTHERWISE ILLEGAL.  AMOS V.
UNITED STATES, 255 U.S. 313(1921); BYARS V. UNITED STATES, 273 U.S.
28(1927).  KELL, THE OWNER OF THE FARM, GAVE HIS ACTIVE CONSENT TO THE
ENTRY.  INDEED, HE VOLUNTARILY DROVE THREE OF THE AGENTS TO THE
PREMISES IN HIS OWN CAR. 

NOR CAN THERE BE DOUBT THAT THE ARREST OF THE PETITIONER ANTONIOLE
WHILE ENGAGED IN THE COMMISSION OF A FELONY IN THE PRESENCE OF THE
AGENT WAS A VALID ARREST.  THE MAJORITY OF THE COURT EXPLICITLY
CONCEDES SUCH TO BE THE FACT.  UNDER THE ENGLISH COMMON LAW, A POLICE
OFFICER HAD POWER WITHOUT A WARRANT TO ARREST PERSONS COMMITTING A
MISDEMEANOR IN THE OFFICER'S PRESENCE AND PERSONS WHOM THE OFFICER HAD
REASONABLE CAUSE TO BELIEVE HAD COMMITTED A FELONY.  THIS RULE, WHICH
HAD ITS ORIGIN IN THE ANCIENT FORMATIVE PERIOD OF THE COMMON LAW, WAS
FIRMLY ESTABLISHED AT THE TIME OF THE ADOPTION OF THE FOURTH
AMENDMENT.  FN4  SINCE THAT TIME IT HAS RECEIVED GENERAL APPLICATION BY
STATE AND FEDERAL COURTS.  FN5  INDEED, THIS COURT HAS HERETOFORE GIVEN
SPECIFIC RECOGNITION TO THE RULE.  CARROLL V. UNITED STATES, 267 U.S.
132, 156-157(1925).  FN6 

THUS, EVEN THOUGH AGENTS CHARGED WITH ENFORCEMENT OF THE LAWS OF THE
UNITED STATES MADE A LAWFUL ENTRY ONTO THE FARM AND DESPITE THE FACT
THAT A VALID ARREST WAS MADE OF A PARTY WHO WAS IN THE ACT OF
COMMITTING A FELONY, THE COURT NOW HOLDS THAT THE ARRESTING OFFICER IN
THE ABSENCE OF A SEARCH WARRANT WAS POWERLESS TO MAKE A VALID SEIZURE
OF CONTRABAND MATERIALS LOCATED IN PLAIN SIGHT IN THE STRUCTURE IN
WHICH THE ARREST TOOK PLACE.  AND THIS DESPITE THE LONG LINE OF
DECISIONS IN THIS COURT RECOGNIZING AS CONSISTENT WITH THE RESTRICTIONS
OF THE FOURTH AMENDMENT THE POWER OF LAW-ENFORCEMENT OFFICERS TO MAKE
REASONABLE SEARCHES AND SEIZURES AS INCIDENTS TO LAWFUL ARRESTS. 

IN AGNELLO V. UNITED STATES, 269 U.S. 20, 30(1925), THIS COURT
STATED:  "THE RIGHT WITHOUT A SEARCH WARRANT CONTEMPORANEOUSLY TO
SEARCH PERSONS LAWFULLY ARRESTED WHILE COMMITTING CRIME AND TO SEARCH
THE PLACE WHERE THE ARREST IS MADE IN ORDER TO FIND AND SEIZE THINGS
CONNECTED WITH THE CRIME  ...  AS WELL AS WEAPONS AND OTHER THINGS TO
EFFECT AN ESCAPE FROM CUSTODY, IS NOT TO BE DOUBTED.  ...  SUCH
SEARCHES AND SEIZURES NATURALLY AND USUALLY APPERTAIN TO AND ATTEND
SUCH ARRESTS."  FN7  AND SEE WEEKS V. UNITED STATES, 232 U.S. 383,
392(1914); CARROLL V. UNITED STATES, SUPRA AT 158; UNITED STATES V.
LEE, 274 U.S. 559, 563(1927); MARRON V. UNITED STATES, 275 U.S. 192,
198-199(1927); GO-BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344,
358(1931); UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 465(1932); HARRIS
V. UNITED STATES, 331 U.S. 145, 150-151, 168, 186(1947). 

THE VALIDITY OF A SEARCH AND SEIZURE AS INCIDENT TO A LAWFUL ARREST
HAS BEEN BASED UPON A RECOGNITION BY THIS COURT THAT WHERE LAW
ENFORCEMENT AGENTS HAVE LAWFULLY GAINED ENTRANCE INTO PREMISES AND HAVE
EXECUTED A VALID ARREST OF THE OCCUPANT, THE VITAL RIGHTS OF PRIVACY
PROTECTED BY THE FOURTH AMENDMENT ARE NOT DENIED BY SEIZURE OF
CONTRABAND MATERIALS AND INSTRUMENTALITIES OF CRIME IN OPEN VIEW OR
SUCH AS MAY BE BROUGHT TO LIGHT BY A REASONABLE SEARCH.  HERE THERE CAN
BE NO OBJECTION TO THE SCOPE OR INTENSITY OF THE SEARCH.  CF. MARRON V.
UNITED STATES, SUPRA; GO-BART IMPORTING CO. V. UNITED STATES, SUPRA;
UNITED STATES V. LEFKOWITZ, SUPRA; HARRIS V. UNITED STATES, SUPRA.  THE
SEIZURE WAS NOT PRECEDED BY AN EXPLORATORY SEARCH.  THE OBJECTS SEIZED
WERE IN PLAIN SIGHT.  TO INSIST UPON THE USE OF A SEARCH WARRANT IN
SITUATIONS WHERE THE ISSUANCE OF SUCH A WARRANT CAN CONTRIBUTE NOTHING
TO THE PRESERVATION OF THE RIGHTS WHICH THE FOURTH AMENDMENT WAS
INTENDED TO PROTECT, SERVES ONLY TO OPEN AN AVENUE OF ESCAPE FOR THOSE
GUILTY OF CRIME AND TO MENACE THE EFFECTIVE OPERATION OF GOVERNMENT
WHICH IS AN ESSENTIAL PRECONDITION TO THE EXISTENCE OF ALL CIVIL
LIBERTIES. 

IN REACHING ITS RESULT THE COURT RELIES ON TAYLOR V. UNITED STATES,
286 U.S. 1(1932).  THERE, FEDERAL AGENTS BROKE INTO A GARAGE AND SEIZED
A QUANTITY OF ILLICIT LIQUOR.  AT THE TIME OF ENTRY, "NO ONE WAS WITHIN
THE PLACE AND THERE WAS NO REASON TO THINK OTHERWISE."  ID. AT 5.  THE
AGENTS ACTED WITHOUT THE AUTHORITY OF A SEARCH WARRANT, NOR, UNLIKE THE
PRESENT CASE, WAS LAWFUL ENTRY INTO THE BUILDING MADE FOR THE PURPOSE
OF EFFECTING A VALID ARREST.  UNDER THESE CIRCUMSTANCES THE COURT RULED
THAT THE SEIZURE WAS UNLAWFUL.  BUT TO APPLY THAT HOLDING IN A
SITUATION LIKE THE PRESENT, WHERE LAW-ENFORCEMENT OFFICERS HAVE ENTERED
A BUILDING TO ARREST A PARTY OPENLY ENGAGED IN THE COMMISSION OF A
FELONY, IS TO DISREGARD THE VERY BASIS UPON WHICH THE TAYLOR CASE WAS
DECIDED. 

WE ARE TOLD, HOWEVER, THAT ALTHOUGH THE PETITIONER ANTONIOLE WAS
ARRESTED WHILE UNDENIABLY ENGAGED IN THE COMMISSION OF A FELONY, HIS
PRESENCE IN THE BUILDING IN WHICH THE CONTRABAND MATERIALS WERE LOCATED
WAS A "FORTUITOUS CIRCUMSTANCE WHICH WAS INADEQUATE TO LEGALIZE THE
SEIZURE."  WE SHOULD SUPPOSE THAT ANY ARREST OF A PARTY ENGAGED IN THE
COMMISSION OF A FELONY IS BASED IN PART UPON AN ELEMENT OF CHANCE. 
CRIMINALS DO NOT NORMALLY CHOOSE TO ENGAGE IN FELONIOUS ENTERPRISES
BEFORE AN AUDIENCE OF POLICE OFFICIALS.  WE MAY WELL ANTICIPATE THE
PERPLEXITY OF OFFICERS ENGAGED IN THE PRACTICAL BUSINESS OF LAW
ENFORCEMENT WHEN CONFRONTED WITH A RULE WHICH MAKES THE VALIDITY OF A
SEIZURE OF CONTRABAND MATERIALS AS AN INCIDENT TO A LAWFUL ARREST
DEPENDENT UPON SUBSEQUENT JUDICIAL JUDGMENT AS TO THE "FORTUITOUS"
CIRCUMSTANCES RELATING TO THE PRESENCE OF THE PARTY ARRESTED ON THE
PREMISES IN WHICH THE ILLEGAL GOODS ARE LOCATED. 

NOR ARE WE FREE TO ASSUME THAT THE AGENTS IN THIS CASE WOULD HAVE
PROCEEDED ILLEGALLY TO SEIZE THE MATERIALS IN THE BARN IN THE ABSENCE
OF THE JUSTIFICATION OF A VALID ARREST.  A LAWFUL SEIZURE IS NOT TO BE
INVALIDATED BY SPECULATIONS AS TO WHAT THE CONDUCT OF THE AGENTS MIGHT
HAVE BEEN HAD A DIFFERENT FACTUAL SITUATION BEEN PRESENTED. 

THE CASE OF JOHNSON V. UNITED STATES, 333 U.S. 10(1948), DOES NOT
SUPPORT THE RESULT WHICH THE COURT HAS REACHED.  FOR THERE THE MAJORITY
OF THE COURT HELD THAT THE ARREST IN QUESTION WAS AN INVALID ONE. 
OBVIOUSLY, A SEARCH AND SEIZURE MAY NOT BE HELD VALID ON THE SOLE
GROUND THAT IT WAS AN INCIDENT TO AN INVALID ARREST.  SUCH IS NOT THE
SITUATION HERE. 

IN CARROLL V. UNITED STATES, SUPRA AT 149, THIS COURT OBSERVED:  "THE
FOURTH AMENDMENT IS TO BE CONSTRUED IN THE LIGHT OF WHAT WAS DEEMED AN
UNREASONABLE SEARCH AND SEIZURE WHEN IT WAS ADOPTED, AND IN A MANNER
WHICH WILL CONSERVE PUBLIC INTERESTS AS WELL AS THE INTERESTS AND
RIGHTS OF INDIVIDUAL CITIZENS."  WE BELIEVE THAT THE RESULT REACHED
TODAY IS NOT CONSISTENT WITH JUDICIAL AUTHORITY AS IT EXISTED BEFORE
THE ADOPTION OF THE FOURTH AMENDMENT NOR AS IT HAS DEVELOPED SINCE THAT
TIME.  NOR DO WE FEEL THAT THE DECISION COMMENDS ITSELF AS ADAPTED TO
CONSERVE VITAL PUBLIC AND INDIVIDUAL INTERESTS.  HERETOFORE IT HAS BEEN
THOUGHT THAT WHERE OFFICERS CHARGED WITH THE RESPONSIBILITY OF
ENFORCEMENT OF THE LAW HAVE LAWFULLY ENTERED PREMISES AND EXECUTED A
VALID ARREST, A REASONABLE ACCOMMODATION OF THE INTERESTS OF SOCIETY
AND THE INDIVIDUAL PERMITS SUCH OFFICIALS TO SEIZE INSTRUMENTALITIES OF
THE CRIME AND CONTRABAND MATERIALS IN OPEN VIEW OF THE ARRESTING
OFFICER.  THE COURT WOULD NOW CONDITION THIS RIGHT OF SEIZURE AFTER A
VALID ARREST UPON AN EX POST FACTO JUDICIAL JUDGMENT OF WHETHER THE
ARRESTING OFFICERS MIGHT HAVE OBTAINED A SEARCH WARRANT.  AT BEST, THE
OPERATION OF THE RULE WHICH THE COURT TODAY ENUNCIATES FOR THE FIRST
TIME MAY BE EXPECTED TO CONFOUND CONFUSION IN A FIELD ALREADY REPLETE
WITH COMPLEXITIES. 

FN1  SUBSEQUENTLY, PETITIONERS MOVED THE DISTRICT COURT TO ORDER THE
RETURN OF THE PROPERTY SEIZED AND TO SUPPRESS ITS USE AS EVIDENCE.  70
F.SUPP.  764(1947).  THE MOTION WAS DENIED.  THE ORDER WAS AFFIRMED BY
THE CIRCUIT COURT OF APPEALS IN A PER CURIAM STATEMENT.  163 F.2D
828(1947). 

FN2  SEE SECS. 2803, 2810, 2812, 2814, 2831, 2833 OF THE INTERNAL
REVENUE CODE. 

FN3  BOYD V. UNITED STATES, 116 U.S. 616, 623, 624(1886); WEEKS V.
UNITED STATES, 232 U.S. 383, 392-393(1914); GOULED V. UNITED STATES,
255 U.S. 298, 309(1921); CARROLL V. UNITED STATES, 267 U.S. 132, 149
150(1925); AGNELLO V. UNITED STATES, 269 U.S. 20, 30(1925); MARRON V.
UNITED STATES, 275 U.S. 192, 199(1927); UNITED STATES V. LEFKOWITZ, 285
U.S. 452, 465-466(1932); HARRIS V. UNITED STATES, 331 U.S. 145,
154(1947). 

FN4  SAMUEL V. PAYNE, 1 DOUG.  K.B. 359(1780); WAKELY V. HART, 6
BINN.  316(1814).  AND SEE 2 HALE, PLEAS OF THE CROWN 85-97; 4
BLACKSTONE, COMMENTARIES 292-293; WILGUS, ARREST WITHOUT A WARRANT, 22
MICH. L. REV. 541, 673. 

FN5  UNITED STATES V. DAISON, 288 F. 199(1923); ROHAN V. SAWIN, 5
CUSH.  281(1850); WADE V. CHAFFEE, 8 R.I. 224(1865). 

FN6  CF. KURTZ V. MOFFITT, 115 U.S. 487, 498-499(1855). 

FN7  AND SEE ID. AT 32, 33. 
..END :






















WEST V. OKLAHOMA TAX COMM'N, 334 U.S. 717 


NO. 489.  ARGUED MARCH 29-30, 1948.  - DECIDED JUNE 14, 1948.  - 200
OKLA. - , 193 P.2D 1017, AFFIRMED. 


1.  AN OKLAHOMA INHERITANCE TAX ON THE TRANSFER OF PROPERTIES HELD IN
TRUST BY THE UNITED STATES FOR THE BENEFIT OF A RESTRICTED OSAGE INDIAN
AND HIS HEIRS, WHICH PROPERTIES HAD NOT BEEN EXEMPTED BY CONGRESS FROM
DIRECT TAXATION, HELD VALID.  PP. 718-728. 

2.  UNITED STATES V. RICKERT, 188 U.S. 432, AND MCCURDY V. UNITED
STATES, 264 U.S. 484, DISTINGUISHED; OKLAHOMA TAX COMM'N V. UNITED
STATES, 319 U.S. 598, FOLLOWED.  PP. 724-727. 

3.  FOR THE PURPOSE OF AN ESTATE TAX, THERE IS NO SUBSTANTIAL
DIFFERENCE BETWEEN RESTRICTED PROPERTY AND TRUST PROPERTY.  P. 726. 

4.  AN INHERITANCE OR ESTATE TAX IS NOT IMPOSED UPON THE PROPERTY OF
WHICH AN ESTATE IS COMPOSED, BUT RATHER UPON THE SHIFTING OF ECONOMIC
BENEFITS AND THE PRIVILEGE OF TRANSMITTING OR RECEIVING SUCH BENEFITS. 
P. 727. 

5.  WHETHER LEGAL TITLE TO THE PROPERTIES COMPOSING AN ESTATE IS IN
THE UNITED STATES OR IN THE DECEDENT AND HIS HEIR IS OF NO CONSEQUENCE
TO THE TAXABILITY OF THE TRANSFER; NOR IS THE FACT THAT PERMITTING THE
IMPOSITION OF THE INHERITANCE TAX ON THE TRANSFER MAY DEPLETE THE TRUST
CORPUS AND CREATE LIEN DIFFICULTIES.  P. 727. 

WEST V. OKLAHOMA TAX COMMISSION. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

FROM AN ORDER OF THE OKLAHOMA TAX COMMISSION IMPOSING AN INHERITANCE
TAX ON THE ESTATE OF A RESTRICTED OSAGE INDIAN, APPELLANT, SOLE HEIR OF
THE DECEDENT, APPEALED.  THE STATE SUPREME COURT AFFIRMED THE ORDER. 
200 OKLA. - , 193 P.2D 1017.  ON APPEAL TO THIS COURT, AFFIRMED, P.
728. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL CONCERNS THE POWER OF THE STATE OF OKLAHOMA TO LEVY AN
INHERITANCE TAX ON THE ESTATE OF A RESTRICTED OSAGE INDIAN. 
SPECIFICALLY, THE PROBLEM IS WHETHER PROPERTY HELD IN TRUST BY THE
UNITED STATES FOR THE BENEFIT OF THE INDIAN MAY BE INCLUDED WITHIN THE
TAXABLE ESTATE. 

CHARLES WEST, JR., WAS A RESTRICTED, FULL-BLOOD, UNALLOTTED, ADULT
OSAGE INDIAN.  HE DIED INTESTATE IN 1940, A RESIDENT OF OKLAHOMA.  NO
CERTIFICATE OF COMPETENCY WAS EVER ISSUED TO HIM.  SURVIVING HIM WAS
HIS MOTHER, APPELLANT HEREIN, WHO IS A RESTRICTED, FULL-BLOOD OSAGE
INDIAN.  THE ENTIRE ESTATE PASSED TO HER AS THE SOLE HEIR AT LAW.  FN1 

THE OKLAHOMA TAX COMMISSION ENTERED AN ORDER LEVYING A TAX ON THE
TRANSFER OF THE NET ESTATE, VALUED AT $111,219.18.  WITH PENALTIES, THE
TOTAL TAX IMPOSED WAS $5,313.35.  APPELLANT MADE TIMELY OBJECTION TO
THE INCLUSION OF CERTAIN ITEMS IN THE TAXABLE ESTATE.  THESE ITEMS
FORMED THE BULK OF THE ESTATE AND HAD BEEN HELD IN TRUST FOR THE
DECEDENT BY THE UNITED STATES, ACTING THROUGH THE SECRETARY OF THE
INTERIOR.  ACT OF JUNE 28, 1906, 34 STAT. 539, AS AMENDED, 41 STAT.
1249, 45 STAT. 1478, 52 STAT. 1034.  THE TRUST PROPERTIES INVOLVED WERE
AS FOLLOWS: 

(1)  ONE AND 915/2520THS OSAGE MINERAL HEADRIGHTS.  THIS ITEM
REPRESENTED THE DECEDENT'S UNDIVIDED INTEREST IN THE OIL, GAS, COAL AND
OTHER MINERALS UNDER THE LANDS IN OSAGE COUNTY, OKLAHOMA, SAID MINERALS
HAVING BEEN RESERVED TO THE USE OF THE OSAGE TRIBE BY THE ACT OF JUNE
28, 1906.  FN2 

(2)  SURPLUS FUNDS IN THE UNITED STATES TREASURY, REPRESENTING
ACCRUALS OF INCOME TO THE DECEDENT FROM THE HEADRIGHTS. 

(3)  STOCKS AND BONDS PURCHASED BY AND IN THE NAME OF THE UNITED
STATES AND HELD FOR THE DECEDENT BY THE SECRETARY OF THE INTERIOR. 
THESE PURCHASES WERE MADE WITH THE SURPLUS FUNDS ACCRUING FROM THE
HEADRIGHTS. 

(4)  TRUST FUNDS IN THE HANDS OF THE TREASURER OF THE UNITED STATES,
REPRESENTING DECEDENT'S SHARE OF THE PROCEEDS OF THE SALE OF THE OSAGE
TRIBE'S LANDS IN KANSAS. 

(5)  PERSONAL PROPERTY PURCHASED WITH SURPLUS FUNDS. 

APPELLANT CLAIMED THAT THESE PROPERTIES WERE IMMUNE FROM STATE
TAXATION BY VIRTUE OF THE RELEVANT PROVISIONS OF THE CONSTITUTION,
TREATIES AND LAWS OF THE UNITED STATES; HENCE THE OKLAHOMA INHERITANCE
AND TRANSFER TAX ACT OF 1939(SECS.  989-989T, TITLE 68, OKLA. STAT.
1941) WHICH AUTHORIZED THE ASSESSMENT ON THE PROPERTIES WAS INVALID IN
THIS RESPECT.  THE OKLAHOMA TAX COMMISSION REJECTED THIS CONTENTION AND
THE SUPREME COURT OF OKLAHOMA AFFIRMED.  200 OKLA. - , 193 P.2D 1017. 

IT IS ESSENTIAL AT THE OUTSET TO UNDERSTAND THE HISTORY AND NATURE OF
THE ARRANGEMENT WHEREBY THE UNITED STATES HOLDS IN TRUST THE PROPERTIES
INVOLVED IN THIS CASE.  SEE COHEN, HANDBOOK OF FEDERAL INDIAN LAW
(1945) 446-455.  IN 1866, THE UNITED STATES AND THE CHEROKEE NATION OF
INDIANS EXECUTED A COMPREHENSIVE TREATY COVERING THEIR VARIOUS
RELATIONSHIPS.  14 STAT. 799.  IT WAS THERE AGREED THAT THE UNITED
STATES MIGHT SETTLE FRIENDLY INDIANS IN CERTAIN AREAS OF CHEROKEE
TERRITORY, INCLUDING WHAT IS NOW OSAGE COUNTY, OKLAHOMA; THESE AREAS
HAD PREVIOUSLY BEEN CONVEYED BY THE UNITED STATES TO THE CHEROKEES. 
THE TREATY FURTHER PROVIDED THAT THE AREAS IN QUESTION WERE TO BE
CONVEYED IN FEE SIMPLE TO THE TRIBES SETTLED BY THE UNITED STATES "TO
BE HELD IN COMMON OR BY THEIR MEMBERS IN SEVERALTY AS THE UNITED STATES
MAY DECIDE." 

THE OSAGE INDIANS SUBSEQUENTLY MOVED TO THE INDIAN TERRITORY AND
SETTLED IN WHAT IS NOW OSAGE COUNTY.  IN 1883, PURSUANT TO THE 1866
TREATY, THE CHEROKEES CONVEYED THIS AREA TO THE UNITED STATES "IN TRUST
NEVERTHELESS AND FOR THE USE AND BENEFIT OF THE SAID OSAGE AND KANSAS
INDIANS."  IT IS SIGNIFICANT THAT FEE SIMPLE TITLE TO THE LAND WAS NOT
CONVEYED AT THIS TIME TO THE OSAGES; INSTEAD, THE UNITED STATES
RECEIVED THAT TITLE AS TRUSTEE FOR THE OSAGES.  NOR WAS ANY DISTINCTION
HERE MADE BETWEEN THE LAND AND THE MINERALS THEREUNDER, LEGAL TITLE TO
BOTH BEING TRANSFERRED TO THE UNITED STATES. 

ON JUNE 28, 1906, THE OSAGE ALLOTMENT ACT, PROVIDING FOR THE
DISTRIBUTION OF OSAGE LANDS AND PROPERTIES, BECAME EFFECTIVE.  34 STAT.
539.  SEE LEVINDALE LEAD CO. V. COLEMAN, 241 U.S. 432.  PROVISION WAS
THERE MADE FOR THE ALLOTMENT TO EACH TRIBAL MEMBER OF A 160-ACRE
HOMESTEAD, PLUS CERTAIN ADDITIONAL SURPLUS LANDS.  THESE ALLOTTED
LANDS, SAID SEC. 7, WERE TO BE SET ASIDE "FOR THE SOLE USE AND BENEFIT
OF THE INDIVIDUAL MEMBERS OF THE TRIBE ENTITLED THERETO, OR TO THEIR
HEIRS, AS HEREIN PROVIDED."  THE HOMESTEAD WAS TO BE INALIENABLE AND
NONTAXABLE FOR 25 YEARS OR DURING THE LIFE OF THE ALLOTTEE.  THE
SURPLUS LANDS, HOWEVER, WERE TO BE INALIENABLE FOR 25 YEARS AND
NONTAXABLE FOR 3 YEARS, EXCEPT THAT THE SECRETARY OF THE INTERIOR MIGHT
ISSUE A CERTIFICATE OF COMPETENCE TO AN ADULT, AUTHORIZING HIM TO SELL
ALL OF HIS SURPLUS LANDS; UPON THE ISSUANCE OF SUCH A CERTIFICATE, OR
UPON THE DEATH OF THE ALLOTTEE, THE SURPLUS LANDS WERE TO BECOME
IMMEDIATELY TAXABLE.  SEC. 2, SEVENTH; CHOTEAU V. BURNET, 283 U.S.
691. 

WERE TO BE RESERVED TO THE OSAGE TRIBE FOR A PERIOD OF 25 YEARS AND
THAT MINERAL LEASES AND ROYALTIES WERE TO BE APPROVED BY THE UNITED
STATES.  SECTION 4 THEN PROVIDED THAT ALL MONEY DUE OR TO BECOME DUE TO
THE TRIBE WAS TO BE HELD IN TRUST BY THE UNITED STATES FOR 25 YEARS;
FN3  BUT THESE FUNDS WERE TO BE SEGREGATED AND CREDITED PRO RATA TO THE
INDIVIDUAL MEMBERS OR THEIR HEIRS, WITH INTEREST ACCRUING AND BEING
PAYABLE QUARTERLY TO THE MEMBERS.  ROYALTIES FROM THE MINERAL LEASES
WERE TO BE PLACED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF
THE TRIBAL MEMBERS AND DISTRIBUTED TO THE INDIVIDUAL MEMBERS IN THE
SAME MANNER AND AT THE SAME TIME AS INTEREST PAYMENTS ON OTHER MONEYS
HELD IN TRUST.  IN THIS CONNECTION, IT SHOULD BE NOTED THAT QUARTERLY
PAYMENTS OF INTEREST AND ROYALTIES BECAME SO LARGE THAT CONGRESS LATER
LIMITED THE AMOUNT OF PAYMENTS THAT COULD BE MADE TO THOSE WITHOUT
CERTIFICATES OF COMPETENCE; PROVISION WAS ALSO MADE FOR INVESTING THE
SURPLUS IN BONDS, STOCKS, ETC.  FN4 

ACCORDING TO SEC. 5 OF THIS 1906 STATUTE, AT THE END OF THE 25-YEAR
TRUST PERIOD "THE LANDS, MINERAL INTERESTS, AND MONEYS, HEREIN PROVIDED
FOR AND HELD IN TRUST BY THE UNITED STATES SHALL BE THE ABSOLUTE
PROPERTY OF THE INDIVIDUAL MEMBERS OF THE OSAGE TRIBE, ACCORDING TO THE
ROLE HEREIN PROVIDED FOR, OR THEIR HEIRS, AS HEREIN PROVIDED, AND DEEDS
TO SAID LANDS SHALL BE ISSUED TO SAID MEMBERS, OR TO THEIR HEIRS, AS
HEREIN PROVIDED, AND SAID MONEYS SHALL BE DISTRIBUTED TO SAID MEMBERS,
OR TO THEIR HEIRS, AS HEREIN PROVIDED, AND SAID MEMBERS SHALL HAVE FULL
CONTROL OF SAID LANDS, MONEYS, AND MINERAL INTERESTS, EXCEPT AS
HEREINBEFORE PROVIDED."  IT WAS ALSO STATED IN SEC. 2, SEVENTH, THAT
THE MINERALS UPON THE ALLOTTED LANDS "SHALL BECOME THE PROPERTY OF THE
INDIVIDUAL OWNER OF SAID LAND" AT THE EXPIRATION OF 25 YEARS, UNLESS
OTHERWISE PROVIDED BY CONGRESS. 

MOREOVER, SEC. 6 PROVIDED THAT THE LANDS, MONEYS AND MINERAL
INTERESTS OF ANY DECEASED MEMBER OF THE OSAGE TRIBE "SHALL DESCEND TO
HIS OR HER LEGAL HEIRS, ACCORDING TO THE LAWS OF THE TERRITORY OF
OKLAHOMA."  CONGRESS SUBSEQUENTLY PROVIDED, IN SEC. 8 OF THE ACT OF
APRIL 18, 1912, 37 STAT. 86, 88, THAT ANY ADULT MEMBER OF THE TRIBE WHO
WAS NOT MENTALLY INCOMPETENT COULD BY WILL DISPOSE OF "ANY OR ALL OF
HIS ESTATE, REAL, PERSONAL, OR MIXED, INCLUDING TRUST FUNDS, FROM WHICH
RESTRICTIONS AS TO ALIENATION HAVE NOT BEEN REMOVED," IN ACCORDANCE
WITH THE LAWS OF THE STATE OF OKLAHOMA.  SUCH WILLS COULD NOT BE
PROBATED, HOWEVER, UNLESS APPROVED BY THE SECRETARY OF THE INTERIOR
BEFORE THE DEATH OF THE TESTATOR. 

THE 25-YEAR TRUST PERIOD ESTABLISHED BY THE 1906 STATUTE HAS BEEN
EXTENDED SEVERAL TIMES BY CONGRESS, FIRST TO 1946(41 STAT. 1249), THEN
TO 1958(45 STAT. 1478), AND FINALLY TO 1984(52 STAT. 1034).  THE LAST
EXTENSION PROVIDED THAT THE "LANDS, MONEYS, AND OTHER PROPERTIES NOW OR
HEREAFTER HELD IN TRUST OR UNDER THE SUPERVISION OF THE UNITED STATES
FOR THE OSAGE TRIBE OF INDIANS, THE MEMBERS THEREOF, OR THEIR HEIRS AND
ASSIGNS, SHALL CONTINUE SUBJECT TO SUCH TRUSTS AND SUPERVISION UNTIL
JANUARY 1, 1984, UNLESS OTHERWISE PROVIDED BY ACT OF CONGRESS." 

APPLICATION OF THE FOREGOING PROVISIONS TO THE ESTATE IN ISSUE
PRODUCES THIS PICTURE: LEGAL TITLE TO THE MINERAL INTERESTS, THE FUNDS
AND THE SECURITIES CONSTITUTING THE CORPUS OF THE TRUST ESTATE IS IN
THE UNITED STATES AS TRUSTEE.  THE UNITED STATES RECEIVED LEGAL TITLE
TO THE MINERAL INTERESTS IN 1883, WHEN IT TOOK WHAT IS NOW OSAGE COUNTY
FROM THE CHEROKEES IN TRUST FOR THE OSAGES; AND THAT TITLE HAS NOT
SUBSEQUENTLY BEEN TRANSFERRED.  LEGAL TITLE TO THE VARIOUS FUNDS AND
SECURITIES ADHERED TO THE UNITED STATES AS THE PERTINENT TRUSTS WERE
ESTABLISHED AND DEVELOPED.  BENEFICIAL TITLE TO THESE PROPERTIES WAS
VESTED IN THE DECEDENT AND IS NOW HELD BY HIS SOLE HEIR, THE
APPELLANT.  THE BENEFICIARY AT ALL TIMES HAS BEEN ENTITLED TO AT LEAST
A LIMITED AMOUNT OF INTEREST AND ROYALTIES ARISING OUT OF THE CORPUS. 
AND THE BENEFICIARY HAS A REVERSIONARY INTEREST IN THE CORPUS, AN
INTEREST THAT WILL MATERIALIZE ONLY WHEN IN THE CORPUS, AN INTEREST
THAT WILL MATERIALIZE ONLY WHEN THE TRUST PERIOD.  BUT UNTIL THAT
PERIOD ENDS, THE BENEFICIARY HAS NO CONTROL OVER THE CORPUS.  SEE GLOBE
INDEMNITY CO. V. BRUCE, 81 F.2D 143, 150. 

SINCE 1819, WHEN MCCULLOCH V. MARYLAND, 4 WHEAT.  316, WAS DECIDED,
IT HAS BEEN ESTABLISHED THAT THE PROPERTY OF THE UNITED STATES IS
IMMUNE FROM ANY FORM OF STATE TAXATION, UNLESS CONGRESS EXPRESSLY
CONSENTS TO THE IMPOSITION OF SUCH LIABILITY.  VAN BROCKLIN V.
TENNESSEE, 117 U.S. 151; UNITED STATES V. ALLEGHENY COUNTY, 322 U.S.
174.  THIS TAX IMMUNITY GROWS OUT OF THE SUPREMACY OF THE FEDERAL
GOVERNMENT AND THE NECESSITY THAT IT BE ABLE TO DEAL WITH ITS OWN
PROPERTY FREE FROM ANY INTERFERENCE OR EMBARRASSMENT THAT STATE
TAXATION MIGHT IMPOSE.  MCCULLOCH V. MARYLAND, SUPRA; WISCONSIN
RAILROAD CO. V. PRICE COUNTY, 133 U.S. 496. 

IN UNITED STATES V. RICKERT, 188 U.S. 432, THE SAME RULE WAS HELD TO
APPLY WHERE THE UNITED STATES HOLDS LEGAL TITLE TO LAND IN TRUST FOR AN
INDIAN OR A TRIBE.  THE UNITED STATES THERE HELD LEGAL TITLE TO CERTAIN
LANDS IN TRUST FOR A BAND OF SIOUX INDIANS WHICH WAS IN ACTUAL
POSSESSION OF THE LANDS.  THIS COURT HELD THAT NEITHER THE LANDS NOR
THE PERMANENT IMPROVEMENTS THEREON WERE SUBJECT TO STATE OR LOCAL AD
VALOREM TAXES.  IT WAS EMPHASIZED THAT THE FEE TITLE REMAINED IN THE
UNITED STATES IN OBVIOUS EXECUTION OF ITS PROTECTIVE POLICY TOWARD ITS
WARDS, THE SIOUX INDIANS.  TO TAX THESE LANDS AND THE IMPROVEMENTS
THEREON, WITHOUT CONGRESSIONAL CONSENT, WOULD BE TO TAX A MEANS
EMPLOYED BY THE GOVERNMENT TO ACCOMPLISH BENEFICENT OBJECTS RELATIVE TO
A DEPENDENT CLASS OF INDIVIDUALS.  MOREOVER, THE UNITED STATES HAD
AGREED TO CONVEY THE LANDS TO THE ALLOTTEES IN FEE AT THE END OF THE
TRUST PERIOD "FREE OF ALL CHARGE OR INCUMBRANCES WHATSOEVER."  IF THE
TAX IN QUESTION WERE ASSESSED AND UNPAID, THE LANDS COULD BE SOLD BY
THE TAX AUTHORITIES.  THE UNITED STATES WOULD THUS BE SO BURDENED THAT
IT COULD NOT DISCHARGE ITS OBLIGATION TO CONVEY UNENCUMBERED LAND
WITHOUT PAYING THE TAXES IMPOSED FROM YEAR TO YEAR. 

FURTHER APPLICATION OF THE TAX IMMUNITY RULE TO LAND HELD IN TRUST BY
THE UNITED STATES FOR THE BENEFIT OF INDIANS WAS MADE IN MCCURDY V.
UNITED STATES, 264 U.S. 484.  THAT CASE INVOLVED SURPLUS LANDS THAT HAD
BEEN ALLOTTED TO MEMBERS OF THE OSAGE TRIBE.  IT WILL BE RECALLED THAT
THE OSAGE ALLOTMENT ACT OF JUNE 28, 1906, HAD MADE THESE SURPLUS LANDS
EXPRESSLY TAXABLE AFTER THREE YEARS OR AT THE DEATH OF THE ALLOTTEE. 
THE ALLOTTEES IN THE MCCURDY CASE DIED WITHIN THE THREE-YEAR PERIOD BUT
BEFORE DEEDS TO THEIR ALLOTTED LANDS HAD BEEN EXECUTED AND DELIVERED TO
THEM.  OKLAHOMA SOUGHT TO PLACE A TAX ON THE LANDS, THE TAXABLE DATE
BEING WITHIN THE THREE-YEAR PERIOD AND BEFORE THE EXECUTION AND
DELIVERY OF THE DEEDS TO THE HEIRS OF THE ALLOTTEES.  THIS COURT HELD
THAT LEGAL TITLE TO THE LANDS IN ISSUE WAS STILL IN THE UNITED STATES
AS TRUSTEE ON THE TAXABLE DATE, TITLE NOT PASSING UNTIL THE EXECUTION
AND DELIVERY OF THE DEEDS.  IN RELIANCE ON THE RICKERT CASE, THE
CONCLUSION WAS REACHED THAT THE LANDS WERE NOT TAXABLE WHILE HELD IN
TRUST BY THE UNITED STATES.  SEE ALSO UNITED STATES V. BOARD OF COMM'RS
OF FREMONT COUNTY, WYO., 145 F.2D 329; UNITED STATES V. THURSTON
COUNTY, 143 F. 287. 

SINCE THE PROPERTY HERE INVOLVED IS ALL HELD IN TRUST BY THE UNITED
STATES FOR THE BENEFIT OF THE DECEDENT AND HIS HEIRS, IT IS THOUGHT TO
BE IMMUNE FROM ANY FORM OF STATE TAXATION UNDER THE DECISIONS IN THE
RICKERT AND MCCURDY CASES.  REFERENCE IS MADE TO CERTAIN PROVISIONS OF
THE OKLAHOMA INHERITANCE AND TRANSFER TAX ACT WHICH INDICATE THAT THE
INHERITANCE TAX IN ISSUE MIGHT HAVE A VERY REAL AND DIRECT EFFECT UPON
THE PROPERTY TO WHICH THE UNITED STATES HOLDS TITLE, AN EFFECT SIMILAR
TO THAT WHICH WAS EMPHASIZED IN THE RICKERT CASE.  THE ACT APPLIES, OF
COURSE, TO THE TRANSFER OF ESTATES HELD IN TRUST.  SEC. 989.  SPECIFIC
PROVISION IS THEN MADE IN SEC. 989I THAT "TAXES LEVIED UNDER THIS ACT
SHALL BE AND REMAIN A LIEN UPON ALL THE PROPERTY TRANSFERRED UNTIL
PAID."  PROVISION IS ALSO MADE FOR THE SALE OF ESTATE PROPERTY IF
NECESSARY TO SATISFY THE TAX.  SECS. 989I AND 989L.  IT IS THEREFORE
POSSIBLE THAT IF THE TAX WERE UNPAID OKLAHOMA MIGHT TRY TO PLACE A LIEN
UPON THE PROPERTY WHICH IS BEING TRANSFERRED, PROPERTY AS TO WHICH THE
UNITED STATES HOLDS LEGAL TITLE.  COMPLICATIONS MIGHT ARISE AS TO THE
VALIDITY OF SUCH A LIEN.  AND THE UNITED STATES WOULD BE BURDENED TO
THE EXTENT OF OPPOSING THE IMPOSITION OF THE LIEN OR SEEING THAT THE
TAX WAS PAID SO AS TO AVOID THE LIEN. 

MOREOVER, INSOFAR AS THE INHERITANCE TAX IS PAID OUT OF THE SURPLUS
AND TRUST FUNDS HELD BY THE UNITED STATES, THERE IS A DEPLETION OF THE
CORPUS TO WHICH THE UNITED STATES HOLDS LEGAL TITLE.  SUCH DEPLETION
MAKES THAT MUCH SMALLER THE ESTATE WHICH THE GOVERNMENT HAS SEEN FIT TO
HOLD IN TRUST FOR THE DECEDENT'S HEIRS.  IF THE ESTATE IS TO BE TAPPED
REPEATEDLY BY OKLAHOMA UNTIL 1984 BY THE DEATHS OF THE VARIOUS HEIRS,
THE RESULT MAY BE A SUBSTANTIAL DECREASE IN THE AMOUNT THEN AVAILABLE
FOR DISTRIBUTION. 

BUT OUR DECISION IN OKLAHOMA TAX COMMISSION V. UNITED STATES, 319 U.S.
598, HAS FORECLOSED AN APPLICATION OF THE RICKERT AND MCCURDY CASES TO
THE ESTATE AND INHERITANCE TAX SITUATION.  AMONG THE PROPERTIES
INVOLVED IN THE OKLAHOMA TAX COMMISSION CASE WERE RESTRICTED CASH AND
SECURITIES, WHICH COULD NOT BE FREELY ALIENATED OR USED BY THE INDIANS
WITHOUT THE APPROVAL OF THE SECRETARY OF THE INTERIOR.  WE HELD THAT
THE RESTRICTION, WITHOUT MORE, WAS NOT THE EQUIVALENT OF A
CONGRESSIONAL GRANT OF ESTATE TAX IMMUNITY FOR THE TRANSFER OF THE CASH
AND SECURITIES.  MOREOVER, EXPRESS REPUDIATION WAS MADE OF THE CONCEPT
THAT THESE RESTRICTED PROPERTIES WERE FEDERAL INSTRUMENTALITIES AND
THEREFORE CONSTITUTIONALLY EXEMPT FROM ESTATE TAX CONSEQUENCES.  SEE
ALSO HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376.  THE VERY
FOUNDATION UPON WHICH THE RICKERT CASE RESTED WAS THUS HELD TO BE
INAPPLICABLE. 

WE FAIL TO SEE ANY SUBSTANTIAL DIFFERENCE FOR ESTATE TAX PURPOSES
BETWEEN RESTRICTED PROPERTY AND TRUST PROPERTY.  THE POWER OF CONGRESS
OVER BOTH TYPES OF PROPERTY IS THE SAME.  BOARD OF COMMISSIONERS V.
SEBER, 318 U.S. 705, 717; UNITED STATES V. RAMSEY, 271 U.S. 467, 471. 
BOTH DEVICES HAVE THE COMMON PURPOSE OF PROTECTING THOSE WHO HAVE BEEN
FOUND BY CONGRESS TO BE UNABLE YET TO ASSUME A FULLY INDEPENDENT STATUS
RELATIVE TO PROPERTY.  THE EFFECT WHICH AN ESTATE OR INHERITANCE TAX
MAY HAVE IS THE SAME IN BOTH INSTANCES; LIENS MAY BE PLACED ON BOTH
RESTRICTED AND TRUST PROPERTIES AND LEAD TO COMPLICATIONS; AND BOTH
TYPES OF PROPERTY MAY OF NECESSITY BE DEPLETED TO ASSURE PAYMENT OF THE
TAX.  THE FACT THAT THE UNITED STATES HOLDS LEGAL TITLE AS TO TRUST
PROPERTY BUT NOT AS TO RESTRICTED PROPERTY AFFORDS NO DISTINGUISHING
CHARACTERISTIC FROM THE STANDPOINT OF AN ESTATE TAX.  IN ADDITION,
CONGRESS HAS GIVEN NO INDICATION WHATEVER THAT TRUST PROPERTIES IN
GENERAL ARE TO BE GIVEN ANY GREATER TAX EXEMPTION THAN RESTRICTED
PROPERTIES.  HENCE THE OKLAHOMA TAX COMMISSION CASE MUST CONTROL OUR
DISPOSITION OF THIS PROCEEDING. 

IMPLICIT IN THIS COURT'S REFUSAL TO APPLY THE RICKERT DOCTRINE TO AN
ESTATE OR INHERITANCE TAX SITUATION IS A RECOGNITION THAT SUCH A TAX
RESTS UPON A BASIS DIFFERENT FROM THAT UNDERLYING A PROPERTY TAX.  AN
INHERITANCE OR ESTATE TAX IS NOT LEVIED ON THE PROPERTY OF WHICH AN
ESTATE IS COMPOSED.  RATHER IT IS IMPOSED UPON THE SHIFTING OF ECONOMIC
BENEFITS AND THE PRIVILEGE OF TRANSMITTING OR RECEIVING SUCH BENEFITS. 
UNITED STATES TRUST CO. V. HELVERING, 307 U.S. 57, 60; WHITNEY V. TAX
COMMISSION, 309 U.S. 530, 538.  IN THIS CASE, FOR EXAMPLE, THE DECEDENT
HAD A VESTED INTEREST IN HIS OSAGE HEADRIGHT; AND HE HAD THE RIGHT TO
RECEIVE THE ANNUAL INCOME FROM THE TRUST PROPERTIES AND TO RECEIVE ALL
THE PROPERTIES AT THE END OF THE TRUST PERIOD.  AT HIS DEATH, THESE
INTERESTS AND RIGHTS PASSED TO HIS HEIR.  IT IS THE TRANSFER OF THESE
INCIDENTS, RATHER THAN THE TRUST PROPERTIES THEMSELVES, THAT IS THE
SUBJECT OF THE INHERITANCE TAX IN QUESTION.  IN THIS SETTING,
REFINEMENTS OF TITLE ARE IMMATERIAL.  WHETHER LEGAL TITLE TO THE
PROPERTIES IS IN THE UNITED STATES OR IN THE DECEDENT AND HIS HEIR IS
OF NO CONSEQUENCE TO THE TAXABILITY OF THE TRANSFER. 

THE RESULT OF PERMITTING THE IMPOSITION OF THE INHERITANCE TAX ON THE
TRANSFER OF TRUST PROPERTIES MAY BE, AS WE HAVE NOTED, TO DEPLETE THE
TRUST CORPUS AND TO CREATE LIEN DIFFICULTIES.  BUT THOSE ARE NORMAL AND
INTENDED CONSEQUENCES OF THE INHERITANCE TAX.  AND UNTIL CONGRESS HAS
IN SOME AFFIRMATIVE WAY INDICATED THAT THESE BURDENS REQUIRE THAT THE
TRANSFER BE IMMUNE FROM THE INHERITANCE TAX LIABILITY, THE OKLAHOMA TAX
COMMISSION CASE PERMITS THAT LIABILITY TO BE IMPOSED.  BUT THAT CASE
ALSO MAKES CLEAR THAT SHOULD ANY OF THE PROPERTIES TRANSFERRED BE
EXEMPTED BY CONGRESS FROM DIRECT TAXATION THEY CANNOT BE INCLUDED IN
THE ESTATE FOR INHERITANCE TAX PURPOSES.  NO SUCH PROPERTIES ARE HERE
INVOLVED, HOWEVER. 

WE HAVE CONSIDERED THE OTHER POINTS RAISED BY THE APPELLANT BUT DEEM
THEM TO BE WITHOUT MERIT.  THE JUDGMENT BELOW IS THEREFORE AFFIRMED. 

FN1  THE DECEDENT WAS ALSO SURVIVED BY A WIDOW.  BUT SHE WAS
PROHIBITED BY LAW FROM INHERITING ANY PART OF THE ESTATE UNLESS SHE WAS
OF INDIAN BLOOD, A MATTER WHICH WAS IN DISPUTE.  A SETTLEMENT WAS
REACHED WHEREBY THE WIDOW RECEIVED A CERTAIN AMOUNT FROM THE ESTATE,
APPARENTLY IN RETURN FOR GIVING UP HER CLAIM AS AN HEIR. 

FN2  AN OSAGE HEADRIGHT HAS BEEN DEFINED BY ONE COURT AS "THE
INTEREST THAT A MEMBER OF THE TRIBE HAS IN THE OSAGE TRIBAL TRUST
ESTATE, AND THE TRUST CONSISTS OF THE OIL, GAS, AND MINERAL RIGHTS, AND
THE FUNDS WHICH WERE PLACED TO THE CREDIT OF THE OSAGE TRIBE, ALL FULLY
SET OUT IN THE ABOVE ACT (ACT OF JUNE 28, 1906, 34 STAT. 539)."  IN RE
DENISON, 38 F.2D 662, 664.  ANOTHER COURT HAS MADE THIS DEFINITION:
"THE RIGHT TO RECEIVE THE TRUST FUNDS AND THE MINERAL INTERESTS AT THE
END OF THE TRUST PERIOD, AND DURING THAT PERIOD TO PARTICIPATE IN THE
DISTRIBUTION OF THE BONUSES AND ROYALTIES ARISING FROM THE MINERAL
ESTATES AND THE INTEREST ON THE TRUST FUNDS, IS AN OSAGE HEADRIGHT." 
GLOBE INDEMNITY CO. V. BRUCE, 81 F.2D 143, 148-149.  HEADRIGHTS ARE NOT
TRANSFERABLE AND DO NOT PASS TO A TRUSTEE IN BANKRUPTCY.  TAYLOR V.
TAYRIEN, 51 F.2D 884; TAYLOR V. JONES, 51 F.2D 892. 

FN3  THE TRUST UNDER WHICH THESE FUNDS WERE TO BE HELD WAS
ESTABLISHED IN 1865 BY TREATY BETWEEN THE UNITED STATES AND THE GREAT
AND LITTLE OSAGE INDIANS, 14 STAT. 687.  BY THE TERMS OF THIS TREATY,
THE PROCEEDS OF THE SALE OF OSAGE LANDS IN KANSAS WERE TO BE PLACED IN
THE UNITED STATES TREASURY TO THE CREDIT OF THE TRIBE.  PROVISIONS FOR
CARRYING OUT THE TERMS OF THIS TREATY WERE MADE BY CONGRESS IN 1880, 21
STAT. 291. 

FN4  BY THE ACT OF MARCH 3, 1921, 41 STAT. 1249, CONGRESS PROVIDED
THAT SO LONG AS THE INCOME SHOULD BE SUFFICIENT THE ADULT OSAGE INDIAN
WITHOUT A CERTIFICATE OF COMPETENCY SHOULD BE PAID $1,000 QUARTERLY. 
SEE ALSO ACT OF FEB. 27, 1925, 43 STAT. 1008.  IN THE ACT OF JUNE 24,
1938, 52 STAT. 1034, IT WAS PROVIDED THAT WHERE THE RESTRICTED OSAGE
HAD SURPLUS FUNDS IN EXCESS OF $10,000 HE WAS TO BE PAID $1,000
QUARTERLY, BUT IF HE HAD SURPLUS FUNDS OF LESS THAN $10,000 HE WAS TO
RECEIVE QUARTERLY ONLY HIS CURRENT INCOME, NOT TO EXCEED $1,000
QUARTERLY. 

THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS
DISSENT. 
..END :


















GRYGER V. BURKE, 334 U.S. 728 


NO. 541.  ARGUED APRIL 29-27, 1948.  - DECIDED JUNE 14, 1948.  -
AFFIRMED. 


PETITIONER WAS CHARGED AND CONVICTED IN A STATE COURT OF PENNSYLVANIA
OF BEING A FOURTH OFFENDER AND SENTENCED TO LIFE IMPRISONMENT.  IN THE
PROCEEDING ON THE FOURTH-OFFENDER CHARGE, THE ONLY QUESTION OF FACT
BEFORE THE COURT WAS WHETHER HE WAS THE SAME PERSON WHO WAS CONVICTED
IN FOUR PREVIOUS CASES, AND THIS HE ADMITTED AND DOES NOT NOW DENY. 
HELD: 

1.  IT IS FOR THE PENNSYLVANIA COURTS TO SAY WHETHER THE SENTENCING
JUDGE MADE AN ERROR IN CONSTRUING THE PENNSYLVANIA HABITUAL CRIMINAL
ACT AS MAKING A LIFE SENTENCE MANDATORY AND NOT DISCRETIONARY; AND AN
ERROR BY A STATE COURT IN CONSTRUING STATE LAW IS NOT A DENIAL OF DUE
PROCESS UNDER THE FEDERAL CONSTITUTION.  P. 731. 

2.  IN THE CIRCUMSTANCES DISCLOSED BY THE RECORD IN THIS CASE, THE
STATE'S FAILURE TO PROVIDE COUNSEL FOR PETITIONER ON HIS PLEA TO THE
FOURTH-OFFENDER CHARGE WAS NOT A DENIAL OF DUE PROCESS.  BUTE V.
ILLINOIS, 333 U.S. 640.  P. 731. 

3.  THE FACT THAT ONE OF THE CONVICTIONS THAT ENTERED INTO THE
CALCULATIONS BY WHICH PETITIONER BECAME A FOURTH OFFENDER OCCURRED
BEFORE THE PENNSYLVANIA HABITUAL CRIMINAL ACT WAS PASSED DOES NOT MAKE
THE ACT INVALIDLY RETROACTIVE OR SUBJECT THE PETITIONER TO DOUBLE
JEOPARDY.  P. 732. 

GRYGER V. BURKE, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

CERTIORARI, 332 U.S. 854, TO REVIEW DENIAL OF WRIT OF HABEAS CORPUS. 
AFFIRMED, P. 732. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE COMMONWEALTH OF PENNSYLVANIA HOLDS THE PETITIONER PRISONER UNDER
A LIFE SENTENCE AS AN HABITUAL CRIMINAL.  HIS CLAIM HERE, PROTESTING
DENIAL BY THE STATE SUPREME COURT OF HIS PETITION FOR A WRIT OF HABEAS
CORPUS, IS THAT THE FEDERAL CONSTITUTION REQUIRES PENNSYLVANIA TO
RELEASE HIM ON DUE PROCESS OF LAW GROUNDS BECAUSE (1) HE WAS SENTENCED
AS A FOURTH OFFENDER WITHOUT COUNSEL OR OFFER OF COUNSEL; (2) ONE OF
THE CONVICTIONS ON WHICH THE SENTENCE IS BASED OCCURRED BEFORE THE
ENACTMENT OF THE PENNSYLVANIA HABITUAL CRIMINAL ACT  FN1  AND THE
STATUTE IS THEREFORE UNCONSTITUTIONALLY RETROACTIVE AND EX POST FACTO;
AND (3) SENTENCING UNDER THIS ACT UNCONSTITUTIONALLY SUBJECTS HIM TO
DOUBLE JEOPARDY. 

AT THE OUTSET, WE FACE THE SUGGESTION THAT THE CASE CANNOT PROPERLY BE
DECIDED ON THE MERITS BY THIS COURT BECAUSE, AS A MATTER OF STATE LAW,
THE ATTACK ON THE LIFE SENTENCE MAY BE PREMATURE SINCE PETITIONER WOULD
BE VALIDLY RESTRAINED ON PRIOR SENTENCES NOT EXPIRING UNTIL AT LEAST
FEBRUARY 1949, EVEN IF THE LIFE SENTENCE WERE TO BE INVALIDATED.  SOME
MEMBERS OF THE COURT PREFER TO AFFIRM THE JUDGMENT ON THAT GROUND. 
HOWEVER, SINCE THE STATE LAW QUESTION IS NOT FREE FROM DIFFICULTY, THE
ISSUE WAS NOT FULLY LITIGATED IN THIS COURT, AND SINCE, ON THE MERITS,
FN2  THE SAME CONCLUSION IS REACHED, WE DISPOSE OF THE CASE IN THAT
MANNER. 

BEGINNING IN 1927, AT THE AGE OF SEVENTEEN, THIS PETITIONER HAS BEEN
ARRESTED EIGHT TIMES FOR CRIMES OF VIOLENCE, FOLLOWED IN EACH INSTANCE
BY PLEA OF GUILTY OR BY CONVICTION.  RESPONDENT STATES, AND PETITIONER
DOES NOT DENY, THAT OF THE LAST 20 YEARS OF HIS LIFE, OVER 13 YEARS
HAVE BEEN SPENT IN JAIL.  A SCHEDULE OF HIS PLEAS OR CONVICTIONS AND
PERTINENT DATA IS APPENDED, POST, P. 732, THOSE IN ITALICS BEING THE
FOUR ON THE BASIS OF WHICH AN INFORMATION WAS FILED CHARGING HIM TO BE
A FOURTH OFFENDER.  BROUGHT INTO COURT ON THAT LIMITED CHARGE, HE
ACKNOWLEDGED HIS IDENTITY AS THE CONVICT IN EACH OF THE PREVIOUS CASES
AND HE WAS GIVEN A LIFE SENTENCE PURSUANT TO THE ACT.  HE WAS WITHOUT
COUNSEL AND IT IS SAID THAT HE WAS NEITHER ADVISED OF HIS RIGHT TO
OBTAIN COUNSEL NOR WAS COUNSEL OFFERED TO HIM.  FN3 

IT RATHER OVERSTRAINS OUR CREDULITY TO BELIEVE THAT ONE WHO HAD BEEN
A DEFENDANT EIGHT TIMES AND FOR WHOM COUNSEL HAD TWICE WAGED DEFENSES,
ALBEIT UNSUCCESSFUL ONES, DID NOT KNOW OF HIS RIGHT TO ENGAGE COUNSEL. 
NO REQUEST TO DO SO APPEARS.  THE ONLY QUESTION OF FACT BEFORE THE
COURT ON THE FOURTH OFFENDER CHARGE WAS WHETHER HE WAS THE SAME PERSON
WHO WAS CONVICTED IN THE FOUR CASES.  THIS HE THEN ADMITTED AND DOES
NOT NOW DENY.  THE ONLY OTHER QUESTION WAS SENTENCE, AND IT DOES NOT
APPEAR THAT ANY INFORMATION HELPFUL TO PETITIONER WAS UNKNOWN TO THE
COURT. 

IT IS SAID THAT THE SENTENCING JUDGE PREJUDICED THE DEFENDANT BY A
MISTAKE IN CONSTRUING THE PENNSYLVANIA HABITUAL CRIMINAL ACT IN THAT HE
REGARDED AS MANDATORY A SENTENCE WHICH IS DISCRETIONARY.  IT IS NEITHER
CLEAR THAT THE SENTENCING COURT SO CONSTRUED THE STATUTE, NOR IF HE DID
THAT WE ARE EMPOWERED TO PRONOUNCE IT AN ERROR OF PENNSYLVANIA LAW.  IT
IS CLEAR THAT THE TRIAL COURT, IN VIEW OF DEFENDANT'S LONG CRIMINAL
RECORD, CONSIDERED HE HAD A DUTY TO IMPOSE THE LIFE SENTENCE AND
REFERRED TO IT AS ONE "REQUIRED BY THE ACT."  BUT THERE IS NOTHING TO
INDICATE THAT HE FELT CONSTRAINED TO IMPOSE THE PENALTY EXCEPT AS THE
FACTS BEFORE HIM WARRANTED IT.  AND IT IN ANY EVENT IS FOR THE
PENNSYLVANIA COURTS TO SAY UNDER ITS LAW WHAT DUTY OR DISCRETION THE
COURT MAY HAVE HAD.  NOTHING IN THE RECORD IMPEACHES THE FAIRNESS AND
TEMPERATENESS WITH WHICH THE TRIAL JUDGE APPROACHED HIS TASK.  HIS
ACTION HAS BEEN AFFIRMED BY THE HIGHEST COURT OF THE COMMONWEALTH.  WE
ARE NOT AT LIBERTY TO CONJECTURE THAT THE TRIAL COURT ACTED UNDER AN
INTERPRETATION OF THE STATE LAW DIFFERENT FROM THAT WHICH WE MIGHT
ADOPT AND THEN SET UP OUR OWN INTERPRETATION AS A BASIS FOR DECLARING
THAT DUE PROCESS HAS BEEN DENIED.  WE CANNOT TREAT A MERE ERROR OF
STATE LAW, IF ONE OCCURRED, AS A DENIAL OF DUE PROCESS; OTHERWISE,
EVERY ERRONEOUS DECISION BY A STATE COURT ON STATE LAW WOULD COME HERE
AS A FEDERAL CONSTITUTIONAL QUESTION. 

WE HAVE JUST CONSIDERED AT LENGTH THE OBLIGATION OF THE STATES TO
PROVIDE COUNSEL TO DEFENDANTS WHO PLEAD GUILTY TO NON-CAPITAL
OFFENSES.  BUTE V. ILLINOIS, 333 U.S. 640.  NOTWITHSTANDING THE
RESOURCEFUL ARGUMENT OF ASSIGNED COUNSEL IN THIS COURT, WE THINK THAT
PRECEDENT SETTLES THE ISSUE HERE, THAT NO EXCEPTIONAL CIRCUMSTANCES ARE
PRESENT AND THAT, UNDER THE CIRCUMSTANCES DISCLOSED BY THE RECORD
BEFORE US, THE STATE'S FAILURE TO PROVIDE COUNSEL FOR THIS PETITIONER
ON HIS PLEA TO THE FOURTH OFFENDER CHARGE DID NOT RENDER HIS CONVICTION
AND SENTENCE INVALID. 

NOR DO WE THINK THE FACT THAT ONE OF THE CONVICTIONS THAT ENTERED
INTO THE CALCULATIONS BY WHICH PETITIONER BECAME A FOURTH OFFENDER
OCCURRED BEFORE THE ACT WAS PASSED, MAKES THE ACT INVALIDLY RETROACTIVE
OR SUBJECTS THE PETITIONER TO DOUBLE JEOPARDY.  THE SENTENCE AS A
FOURTH OFFENDER OR HABITUAL CRIMINAL IS NOT TO BE VIEWED AS EITHER A
NEW JEOPARDY OR ADDITIONAL PENALTY FOR THE EARLIER CRIMES.  IT IS A
STIFFENED PENALTY FOR THE LATEST CRIME, WHICH IS CONSIDERED TO BE AN
AGGRAVATED OFFENSE BECAUSE A REPETITIVE ONE.  CF. MOORE V. MISSOURI,
159 U.S. 673; MCDONALD V. MASSACHUSETTS, 180 U.S. 311; GRAHAM V. WEST
VIRGINIA, 224 U.S. 616; CARLESI V. NEW YORK, 233 U.S. 51; PENNSYLVANIA
EX REL. SULLIVAN V. ASHE, 302 U.S. 51. 

THE JUDGMENT IS AFFIRMED. 

FN1  SEC. 1108 OF THE PENAL CODE OF 1939, 18 PA. STAT. ANN. SEC.
5108. 

FN2  RESPONDENT CONTESTED THE CASE BELOW AND IN THIS COURT ON THE
MERITS.  WE ASSUME THAT THE SUPREME COURT OF PENNSYLVANIA PASSED ON
PETITIONER'S ALLEGATIONS OF DEPRIVATION OF FEDERAL CONSTITUTIONAL
RIGHTS AND THAT THOSE ISSUES ARE THEREFORE OPEN HERE.  HERNDON V.
LOWRY, 301 U.S. 242, 247. 

FN3  THE SUPREME COURT OF PENNSYLVANIA HAS FREQUENTLY HELD THAT THE
STATE CONSTITUTIONAL PROVISION ACCORDING DEFENDANTS THE RIGHT TO BE
HEARD BY COUNSEL DOES NOT REQUIRE APPOINTMENT OF COUNSEL IN NONCAPITAL
CASES.  SEE, FOR EXAMPLE, COMMONWEALTH EX REL. MCGLINN V. SMITH, 344
PA. 41, 24 A.2D 1; COMMONWEALTH EX REL. WITHERS V. ASHE, 350 PA. 493,
39 A.2D 610.  SEE ALSO BETTS V. BRADY, 316 U.S. 455, 465.  THE
PENNSYLVANIA STATUTES REQUIRE ONLY THAT DESTITUTE DEFENDANTS ACCUSED OF
MURDER SHALL BE ASSIGNED COUNSEL.  ACT OF MARCH 22, 1907, 19 PA. STAT.
ANN. SEC. 784. 

       TABLE OF PLEAS AND CONVICTIONS. 

DATE     CHARGE                       PLEA
SENTENCE 

1927---BURGLARY--------------------------GUILTY----------------1
YEAR. 

1928---ASSAULT AND BATTERY; CARRYING     GUILTY----------------1
YEAR. 

     CONCEALED DEADLY WEAPON. 

1929---BURGLARY; BREAKING AND ENTERING   NOT GUILTY-----------
COMMITTED TO REFORMATORY 

     WITH INTENT TO COMMIT A FELONY. 
INDEFINITELY. 

1930---ARMED ROBBERY, ARMED ASSAULT,     GUILTY----------------5 TO
10 YEARS. 

     ENTERING WITH INTENT TO ROB. 

1937---BURGLARY, CARRYING CONCEALED      GUILTY OF RECEIVING   1 1/2
TO 3 YEARS. 

     DEADLY WEAPON.                    STOLEN GOODS, AND

                                       CARRYING CONCEALED

                                       DEADLY WEAPON. 

1943---BURGLARY, RECEIVING STOLEN        GUILTY OF RECEIVING 5 TO 10
YEARS. 

     GOODS - 12 OFFENSES EACH.         STOLEN GOODS. 

1944---BURGLARY--------------------------NOT GUILTY------------5 TO
10 YEARS. 

1944---AGGRAVATED ASSAULT AND BATTERY.   NOT GUILTY-----------
SUSPENDED. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS AND MR. JUSTICE MURPHY JOIN, DISSENTING. 

EVEN UPON THE NARROW VIEW TO WHICH A MAJORITY OF THIS COURT ADHERE
CONCERNING THE SCOPE OF THE RIGHT TO COUNSEL IN CRIMINAL CASES, AS
GUARANTEED BY THE FOURTEENTH AMENDMENT'S REQUIREMENT OF DUE PROCESS OF
LAW, I CANNOT SQUARE THE DECISION IN THIS CASE WITH THAT MADE IN
TOWNSEND V. BURKE, POST, P. 736, DECIDED TODAY. 

THE OPINION IN THAT CASE DECLARES THAT "THE DISADVANTAGE FROM ABSENCE
OF COUNSEL, WHEN AGGRAVATED BY CIRCUMSTANCES SHOWING THAT IT RESULTED
IN THE PRISONER ACTUALLY BEING TAKEN ADVANTAGE OF, OR PREJUDICED, DOES
MAKE OUT A CASE OF VIOLATION OF DUE PROCESS."  IN THIS VIEW THE COURT
FINDS THAT TOWNSEND WAS PREJUDICED BY THE TRIAL COURT'S ACTION IN
SENTENCING HIM ON THE BASIS EITHER OF MISINFORMATION SUBMITTED TO IT
CONCERNING HIS PRIOR CRIMINAL RECORD OR BY ITS MISREADING OF THE RECORD
AND CARELESSNESS IN THAT RESPECT.  ON THE SAME BASIS GRYGER'S SENTENCE
WAS INVALID, ALTHOUGH THE COURT FINDS NO SUCH EXCEPTIONAL CIRCUMSTANCES
HERE INDUCING PREJUDICE AS IT FINDS IN TOWNSEND'S CASE. 

THE RECORD, IN MY JUDGMENT, DOES REVEAL SUCH A CIRCUMSTANCE, ONE
WORKING TO INDUCE PREJUDICE AT EXACTLY THE SAME POINT AS WITH TOWNSEND,
NAMELY, UPON THE CRITICAL QUESTION OF SENTENCE.  SO FAR AS THE RECORD
REVEALS, GRYGER WAS SENTENCED TO LIFE IMPRISONMENT BY A COURT WORKING
UNDER THE MISCONCEPTION THAT A LIFE TERM WAS MANDATORY, NOT
DISCRETIONARY, UNDER THE PENNSYLVANIA HABITUAL CRIMINAL ACT.  FN1 

EXACTLY THE OPPOSITE IS TRUE.  IN EXPLICIT TERMS THE STATUTE PUTS
IMPOSITION OF LIFE IMPRISONMENT UPON FOURTH OFFENDERS "IN THE
DISCRETION OF THE JUDGE."  FN2  MOREOVER, APPEAL OF THE SENTENCE IS
AUTHORIZED "NOT ONLY AS TO ALLEGED LEGAL ERRORS BUT ALSO AS TO THE
JUSTICE THEREOF," WITH THE COSTS OF APPEAL AND REASONABLE COUNSEL FEE
TO BE PAID BY THE COMMONWEALTH.  FN3 

IN SPITE OF HIS DISCRETION AND DUTY TO EXERCISE IT, THE SENTENCING
JUDGE, REMARKING THAT THE ONLY QUESTION WAS WHETHER PETITIONER WAS THE
SAME PERSON WHO HAD SUFFERED THE PRIOR CONVICTIONS, REPEATEDLY SPOKE AS
IF THE LIFE SENTENCE WERE MANDATORY.  THE STATEMENTS QUOTED IN THE
MARGIN ARE TYPICAL.  FN4 

IT IS IMMATERIAL THAT THE SAME SENTENCE MIGHT OR PROBABLY WOULD HAVE
BEEN IMPOSED IN AN EXERCISE OF THE COURT'S DISCRETION.  PETITIONER WAS
ENTITLED TO HAVE SENTENCE PRONOUNCED IN THAT MANNER, NOT AS AN
AUTOMATIC MANDATE OF STATUTE.  THE DENIAL OF THE VERY ESSENCE OF THE
JUDICIAL PROCESS, WHICH IS THE EXERCISE OF DISCRETION WHERE DISCRETION
IS REQUIRED, IS IN ITSELF A DENIAL OF DUE PROCESS, NOT MERELY AN ERROR
OF STATE LAW OF NO CONCERN TO THIS COURT.  AND WE CANNOT SPECULATE
WHETHER THE SAME SENTENCE WOULD HAVE BEEN PRONOUNCED IF THE COURT'S
DISCRETION HAD BEEN EXERCISED. 

MOREOVER, THE COURT'S MISCONCEPTION, TOGETHER WITH THE ABSENCE OF
COUNSEL, DEPRIVED THE PETITIONER OF ANY CHANCE TO BE HEARD ON THE
CRUCIAL QUESTION OF SENTENCE, THE ONLY MATTER LEFT FOR HEARING AND THE
VITAL ONE AFTER HIS PLEA OF GUILTY WAS RECEIVED.  EVEN IF IT COULD BE
ASSUMED, AS THE COURT SAYS, THAT HE KNEW OF HIS RIGHT TO COUNSEL FROM
HIS FREQUENT PRIOR APPEARANCES IN COURT, FN5  STILL IT CANNOT BE
ASSUMED, INDEED THE RECORD SUBSTANTIALLY DISPROVES, THAT HE KNEW THE
EXACT TERMS OF THE HABITUAL CRIMINAL ACT.  FN6  HE THEREFORE, MISLED IT
WOULD SEEM BY THE COURT'S LANGUAGE GIVING NO HINT OF ITS DISCRETIONARY
POWER, MADE NO PLEA IN MITIGATION AND HAD NO REPRESENTATIVE TO CORRECT
THE COURT'S MISCONCEPTION OR TO PRESENT CONSIDERATIONS WHICH MIGHT HAVE
INDUCED A SENTENCE LESS SEVERE THAN THE ONE PRONOUNCED.  TO PARAPHRASE
THE CONCLUDING SENTENCE OF THE OPINION IN THE TOWNSEND CASE, "COUNSEL
MIGHT NOT HAVE CHANGED THE SENTENCE, BUT HE COULD HAVE TAKEN STEPS TO
SEE THAT THE SENTENCE WAS NOT PREDICATED ON MISCONCEPTION OR MISREADING
OF THE CONTROLLING STATUTE, A REQUIREMENT OF FAIR PLAY WHICH ABSENCE OF
COUNSEL WITHHELD FROM THIS PRISONER." 

I FIND IT DIFFICULT TO COMPREHEND THAT THE COURT'S MISREADING OR
MISINFORMATION CONCERNING THE FACTS OF RECORD VITAL TO THE PROPER
EXERCISE OF THE SENTENCING FUNCTION IS PREJUDICIAL AND DEPRIVES THE
DEFENDANT OF DUE PROCESS OF LAW, BUT ITS MISREADING OR MISCONCEPTION OF
THE CONTROLLING STATUTE, IN A MATTER SO VITAL AS IMPOSING MANDATORY
SENTENCE OR EXERCISING DISCRETION CONCERNING IT, HAS NO SUCH EFFECT. 
PERHAPS THE DIFFERENCE SERVES ONLY TO ILLUSTRATE HOW CAPRICIOUS ARE THE
RESULTS WHEN THE RIGHT TO COUNSEL IS MADE TO DEPEND NOT UPON THE
MANDATE OF THE CONSTITUTION, BUT UPON THE VAGARIES OF WHETHER JUDGES,
THE SAME OR DIFFERENT, WILL REGARD THIS INCIDENT OR THAT IN THE COURSE
OF PARTICULAR CRIMINAL PROCEEDINGS AS PREJUDICIAL. 

FN1  PA. STAT. ANN. TIT. 18, SEC. 5108. 

FN2  SECTION 5108(B) PROVIDES THAT WHEN THE PRIOR CONVICTIONS ARE
SHOWN AT THE TRIAL FOR THE FOURTH OFFENSE, THE DEFENDANT "SHALL, UPON
CONVICTION  ...  BE SENTENCED, IN THE DISCRETION OF THE JUDGE TRYING
THE CASE, TO IMPRISONMENT IN A STATE PENITENTIARY FOR THE TERM OF HIS
NATURAL LIFE." 

INSTANT CASE, VIZ, A SEPARATE PROCEEDING ON AN INFORMATION WITHIN TWO
YEARS OF THE FOURTH CONVICTION, PROVIDES THAT "THE COURT MAY SENTENCE
HIM TO IMPRISONMENT FOR LIFE AS PRESCRIBED IN CLAUSE (B) OF THIS
JUDGE HAS BEEN CLEARLY RECOGNIZED BY THE COMMONWEALTH'S HIGHEST COURT. 
COMMONWEALTH EX REL. FOSTER V. ASHE, 336 PA. 238, 240. 

FN3  SEC. 5108(D). 

FN4  "  ...  IT BECOMES MY DUTY, UNDER THE ACT OF ASSEMBLY, TO TREAT
SUCH A CASE, THAT IS TO SAY, WHERE A PERSON HAS BEEN FOUND GUILTY THE
FOURTH TIME OF A FELONY WITHIN A PRESCRIBED PERIOD, TO IMPOSE THE
SENTENCE REQUIRED BY THE ACT." 

"IN OTHER WORDS, THE LAW HAS COME TO THIS VIEWPOINT:  ...  (A FOURTH
OFFENDER) MUST BE REMOVED FROM THE POSSIBILITY OF EVER COMMITTING THE
OFFENSE AGAIN."    FN5  A DUBIOUS ASSUMPTION, IT WOULD SEEM, IN VIEW OF
THE FACT THAT PENNSYLVANIA GENERALLY CONFINES THE RIGHT TO HAVE COUNSEL
IN CRIMINAL TRIALS TO CAPITAL CASES.  SEE, E.G., COMMONWEALTH EX REL.
MCGLINN V. SMITH, 344 PA. 41; COMMONWEALTH EX REL. WITHERS V. ASHE, 350
PA. 493.  PA. STAT. ANN. TIT. 19, SEC. 784.  BUT CF. NOTE 3 AND TEXT. 

FN6  PETITIONER, WHEN SERVED WITH THE INFORMATION CHARGING HIM AS A
FOURTH OFFENDER, WAS CONFINED IN THE PENITENTIARY WITHOUT FINANCIAL
MEANS OF PREPARING A DEFENSE.  HE ALLEGED, WITHOUT CONTRADICTION, THAT
THE PRISON AUTHORITIES REFUSED HIS REQUEST FOR A COPY OF THE HABITUAL
CRIMINAL ACT.  IT IS NO ANSWER, OF COURSE, TO SAY THAT PETITIONER HAD
NO NEED OF THE STATUTE OR OTHER ASSISTANCE BECAUSE OF HIS PREVIOUS
TRIPS THROUGH THE COURTS.  WHATEVER KNOWLEDGE OF COURT PROCEDURES HE
MAY HAVE ACQUIRED, HE WAS UNFAMILIAR WITH THE FOURTH OFFENDER ACT. 

EVEN IF PETITIONER HAD SECURED ACCESS PRIOR TO THE HEARING TO
MATERIALS NEEDED TO PREPARE A DEFENSE, OR HAD BEEN ADEQUATELY INFORMED
BY THE COURT AS TO THE STATUTE'S TERMS AND HIS RIGHTS THEREUNDER, IT IS
HIGHLY UNREALISTIC TO ASSUME THAT PETITIONER WAS CAPABLE OF ADEQUATELY
PRESENTING HIS OWN CASE AT THE HEARING.  THE PLEADINGS WHICH HE FILED
ARE TELLING WITNESS OF HIS LIMITED INTELLIGENCE AND EDUCATION.  AND AT
THE HEARING IT WAS SO OBVIOUS THAT PETITIONER WAS UNABLE TO COMPREHEND
THE ISSUES INVOLVED THAT THE ASSISTANT DISTRICT ATTORNEY REPRESENTING
THE COMMONWEALTH REMARKED, "HE DOESN'T UNDERSTAND." 
..END :















TOWNSEND V. BURKE, 334 U.S. 736 


NO. 542.  ARGUED APRIL 27, 1948.  - DECIDED JUNE 14, 1948.  - REVERSED. 


1.  THAT A DEFENDANT CONVICTED IN A STATE COURT OF A NON-CAPITAL
OFFENSE ON A PLEA OF GUILTY HAD BEEN HELD INCOMMUNICADO FOR A PERIOD OF
40 HOURS BETWEEN HIS ARREST AND HIS PLEA OF GUILTY, HAS NO BEARING ON
THE VALIDITY OF HIS CONVICTION - PARTICULARLY WHEN HE MAKES NO
ALLEGATION THAT THE CIRCUMSTANCES OF HIS DETENTION INDUCED HIS PLEA OF
GUILTY.  PP. 737-738. 

2.  WHERE A DEFENDANT SO CONVICTED WAS NOT REPRESENTED BY COUNSEL AND
IT APPEARS FROM THE RECORD THAT, WHILE THE COURT WAS CONSIDERING THE
SENTENCE TO BE IMPOSED, THE DEFENDANT ACTUALLY WAS PREJUDICED EITHER BY
THE PROSECUTION'S SUBMISSION OF MISINFORMATION REGARDING HIS PRIOR
CRIMINAL RECORD OR BY THE COURT'S CARELESS MISREADING OF THAT RECORD,
HE WAS DENIED DUE PROCESS OF LAW AND THE CONVICTION CANNOT BE
SUSTAINED.  PP. 738-741. 

TOWNSEND V. BURKE, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

CERTIORARI, 332 U.S. 854, TO REVIEW DENIAL OF WRIT OF HABEAS CORPUS
BY THE SUPREME COURT OF PENNSYLVANIA.  REVERSED, P. 741. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE COMMONWEALTH OF PENNSYLVANIA HOLDS PETITIONER PRISONER UNDER TWO
INDETERMINATE SENTENCES, NOT EXCEEDING 10 TO 20 YEARS, UPON A PLEA OF
GUILTY TO BURGLARY AND ROBBERY.  ON REVIEW HERE OF THE STATE SUPREME
COURT'S DENIAL OF HABEAS CORPUS,  FN1  THE PRISONER DEMANDS A DISCHARGE
BY THIS COURT ON FEDERAL CONSTITUTIONAL GROUNDS. 

PETITIONER, WHILE A FUGITIVE, WAS INDICTED ON JUNE 1, 1945, FOR
BURGLARY AND ARMED ROBBERY.  FOUR OF HIS ALLEGED ACCOMPLICES HAD BEEN
ARRESTED ON MAY 18, 1945, AND SIGNED A JOINT CONFESSION, WHILE A FIFTH
HAD BEEN ARRESTED ON MAY 21, 1945, AND HAD ALSO CONFESSED.  PETITIONER
WAS ARRESTED ON JUNE 3, 1945, AND CONFESSED ON JUNE 4.  ON JUNE 5,
AFTER PLEADING GUILTY TO TWO CHARGES OF ROBBERY AND TWO CHARGES OF
BURGLARY AND NOT GUILTY TO OTHER CHARGES, HE WAS SENTENCED. 

PETITIONER NOW ALLEGES VIOLATION OF HIS CONSTITUTIONAL RIGHTS IN
THAT, EXCEPT FOR A TEN-MINUTE CONVERSATION WITH HIS WIFE, HE WAS HELD
INCOMMUNICADO FOR A PERIOD OF 40 HOURS BETWEEN HIS ARREST AND HIS PLEA
OF GUILTY.  HE DOES NOT ALLEGE THAT HE WAS BEATEN, MISUSED, THREATENED
OR INTIMIDATED, BUT ONLY THAT HE WAS HELD FOR THAT PERIOD AND WAS
SEVERAL TIMES INTERROGATED.  HE DOES NOT ALLEGE THAT THE QUESTIONING
WAS CONTINUOUS OR THAT IT HAD ANY COERCIVE EFFECT. 

THE PLEA FOR RELIEF BECAUSE HE WAS DETAINED, AS HE CLAIMS, UNLAWFULLY
IS BASED ON MCNABB V. UNITED STATES, 318 U.S. 332.  BUT THE RULE THERE
APPLIED WAS ONE AGAINST USE OF CONFESSIONS OBTAINED DURING ILLEGAL
DETENTION AND IT WAS LIMITED TO FEDERAL COURTS, TO WHICH IT WAS APPLIED
BY VIRTUE OF OUR SUPERVISORY POWER.  IN THIS PRESENT CASE NO CONFESSION
WAS USED BECAUSE THE PLEA OF GUILTY IN OPEN COURT DISPENSED WITH PROOF
OF THE CRIME.  HENCE, LAWFULNESS OF THE DETENTION IS NOT A FACTOR IN
DETERMINING ADMISSIBILITY OF ANY CONFESSION AND IF HE WERE TEMPORARILY
DETAINED ILLEGALLY, IT WOULD HAVE NO BEARING ON THE VALIDITY OF HIS
PRESENT CONFINEMENT BASED ON HIS PLEA OF GUILTY, PARTICULARLY SINCE HE
MAKES NO ALLEGATION THAT IT INDUCED THE PLEA. 

PETITIONER ALSO RELIES ON HALEY V. OHIO, 332 U.S. 596, IN WHICH THIS
COURT REVERSED A STATE COURT MURDER CONVICTION BECAUSE IT WAS BELIEVED
TO HAVE BEEN BASED ON A CONFESSION WRUNG FROM AN UNCOUNSELED 15-YEAR
OLD BOY HELD INCOMMUNICADO DURING QUESTIONING BY RELAYS OF POLICE FOR
SEVERAL HOURS LATE AT NIGHT.  EVEN ASIDE FROM THE DIFFERING FACTS, THAT
CASE PROVIDES NO PRECEDENT FOR RELIEF TO THIS PRISONER SINCE, AS HAS
BEEN SAID, NO CONFESSION WAS USED AGAINST HIM, AND HE DOES NOT ALLEGE
THAT HIS PLEAS OF GUILTY RESULTED FROM HIS ALLEGEDLY ILLEGAL
DETENTION. 

PETITIONER ALSO SAYS THAT WHEN HE WAS BROUGHT INTO COURT TO PLEAD, HE
WAS NOT REPRESENTED BY COUNSEL, OFFERED ASSIGNMENT OF COUNSEL, ADVISED
OF HIS RIGHT TO COUNSEL OR INSTRUCTED WITH PARTICULARITY AS TO THE
NATURE OF THE CRIMES WITH WHICH HE WAS CHARGED.  THIS, HE SAYS, UNDER
THE CIRCUMSTANCES DEPRIVED HIS CONVICTION AND SENTENCE OF
CONSTITUTIONAL VALIDITY BY REASON OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  FN2 

ONLY RECENTLY A MAJORITY OF THIS COURT REAFFIRMED THAT THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT PROHIBIT A STATE
FROM ACCEPTING A PLEA OF GUILTY IN A NON-CAPITAL CASE FROM AN
UNCOUNSELED DEFENDANT.  BUTE V. ILLINOIS, 333 U.S. 640.  IN THAT, AND
IN EARLIER CASES, WE HAVE INDICATED, HOWEVER, THAT THE DISADVANTAGE
FROM ABSENCE OF COUNSEL, WHEN AGGRAVATED BY CIRCUMSTANCES SHOWING THAT
IT RESULTED IN THE PRISONER ACTUALLY BEING TAKEN ADVANTAGE OF, OR
PREJUDICED, DOES MAKE OUT A CASE OF VIOLATION OF DUE PROCESS. 

THE PROCEEDINGS AS TO THIS PETITIONER, FOLLOWING HIS PLEA OF GUILTY,
CONSISTED OF A RECITAL BY AN OFFICER OF DETAILS OF THE CRIMES TO WHICH
PETITIONER AND OTHERS HAD PLEADED GUILTY AND OF THE FOLLOWING ACTION BY
THE COURT: 

"BY THE COURT (ADDRESSING TOWNSEND): 

"Q.  TOWNSEND, HOW OLD ARE YOU? 

"A.  29. 

"Q. YOU HAVE BEEN HERE BEFORE, HAVEN'T YOU? 

"A.  YES, SIR. 

"Q.  1933, LARCENY OF AUTOMOBILE.  1934, LARCENY OF PRODUCE.  1930,
LARCENY OF BICYCLE.  1931, ENTERING TO STEAL AND LARCENY.  1938,
ENTERING TO STEAL AND LARCENY IN DOYLESTOWN.  WERE YOU TRIED UP THERE? 
NO, NO. ARRESTED IN DOYLESTOWN.  THAT WAS UP ON GERMANTOWN AVENUE,
WASN'T IT?  YOU ROBBED A PAINT STORE. 

"A.  NO. THAT WAS MY BROTHER. 

"Q.  YOU WERE TRIED FOR IT, WEREN'T YOU? 

"A.  YES, BUT I WAS NOT GUILTY. 

"Q.  AND 1945, THIS.  1936, ENTERING TO STEAL AND LARCENY, 1350 RIDGE
AVENUE.  IS THAT YOUR BROTHER TOO? 

"A.  NO. 

"Q.  1937, RECEIVING STOLEN GOODS, A SAXOPHONE.  WHAT DID YOU WANT
WITH A SAXOPHONE?  DIDN'T HOPE TO PLAY IN THE PRISON BAND THEN, DID
YOU? 

"THE COURT:  TEN TO TWENTY IN THE PENITENTIARY." 

THE TRIAL COURT'S FACETIOUSNESS CASTS A SOMEWHAT SOMBER REFLECTION ON
THE FAIRNESS OF THE PROCEEDING WHEN WE LEARN FROM THE RECORD THAT
ACTUALLY THE CHARGE OF RECEIVING THE STOLEN SAXOPHONE HAD BEEN
DISMISSED AND THE PRISONER DISCHARGED BY THE MAGISTRATE.  BUT IT SAVORS
OF FOUL PLAY OR OF CARELESSNESS WHEN WE FIND FROM THE RECORD THAT, ON
TWO OTHERS OF THE CHARGES WHICH THE COURT RECITED AGAINST THE
DEFENDANT, HE HAD ALSO BEEN FOUND NOT GUILTY.  BOTH THE 1933 CHARGE OF
LARCENY OF AN AUTOMOBILE, AND THE 1938 CHARGE OF ENTRY TO STEAL AND
LARCENY, RESULTED IN HIS DISCHARGE AFTER HE WAS ADJUDGED NOT GUILTY. 
WE ARE NOT AT LIBERTY TO ASSUME THAT ITEMS GIVEN SUCH EMPHASIS BY THE
SENTENCING COURT DID NOT INFLUENCE THE SENTENCE WHICH THE PRISONER IS
NOW SERVING. 

WE BELIEVE THAT ON THE RECORD BEFORE US, IT IS EVIDENT THAT THIS
UNCOUNSELED DEFENDANT WAS EITHER OVERREACHED BY THE PROSECUTION'S
SUBMISSION OF MISINFORMATION TO THE COURT OR WAS PREJUDICED BY THE
COURT'S OWN MISREADING OF THE RECORD.  COUNSEL, HAD ANY BEEN PRESENT,
WOULD HAVE BEEN UNDER A DUTY TO PREVENT THE COURT FROM PROCEEDING ON
SUCH FALSE ASSUMPTIONS AND PERHAPS UNDER A DUTY TO SEEK REMEDY
ELSEWHERE IF THEY PERSISTED.  CONSEQUENTLY, ON THIS RECORD WE CONCLUDE
THAT, WHILE DISADVANTAGED BY LACK OF COUNSEL, THIS PRISONER WAS
SENTENCED ON THE BASIS OF ASSUMPTIONS CONCERNING HIS CRIMINAL RECORD
WHICH WERE MATERIALLY UNTRUE.  SUCH A RESULT, WHETHER CAUSED BY
CARELESSNESS OR DESIGN, IS INCONSISTENT WITH DUE PROCESS OF LAW, AND
SUCH A CONVICTION CANNOT STAND. 

WE WOULD MAKE CLEAR THAT WE ARE NOT REACHING THIS RESULT BECAUSE OF
PETITIONER'S ALLEGATION THAT HIS SENTENCE WAS UNDULY SEVERE.  THE
SENTENCE BEING WITHIN THE LIMITS SET BY THE STATUTE, ITS SEVERITY WOULD
NOT BE GROUNDS FOR RELIEF HERE EVEN ON DIRECT REVIEW OF THE CONVICTION,
MUCH LESS ON REVIEW OF THE STATE COURT'S DENIAL OF HABEAS CORPUS.  IT
IS NOT THE DURATION OR SEVERITY OF THIS SENTENCE THAT RENDERS IT
CONSTITUTIONALLY INVALID; IT IS THE CARELESS OR DESIGNED PRONOUNCEMENT
OF SENTENCE ON A FOUNDATION SO EXTENSIVELY AND MATERIALLY FALSE, WHICH
THE PRISONER HAD NO OPPORTUNITY TO CORRECT BY THE SERVICES WHICH
COUNSEL WOULD PROVIDE, THAT RENDERS THE PROCEEDINGS LACKING IN DUE
PROCESS. 

NOR DO WE MEAN THAT MERE ERROR IN RESOLVING A QUESTION OF FACT ON A
PLEA OF GUILTY BY AN UNCOUNSELED DEFENDANT IN A NON-CAPITAL CASE WOULD
NECESSARILY INDICATE A WANT OF DUE PROCESS OF LAW.  FAIR PROSECUTORS
AND CONSCIENTIOUS JUDGES SOMETIMES ARE MISINFORMED OR DRAW INFERENCES
FROM CONFLICTING EVIDENCE WITH WHICH WE WOULD NOT AGREE.  BUT EVEN AN
ERRONEOUS JUDGMENT, BASED ON A SCRUPULOUS AND DILIGENT SEARCH FOR
TRUTH, MAY BE DUE PROCESS OF LAW. 

IN THIS CASE, COUNSEL MIGHT NOT HAVE CHANGED THE SENTENCE, BUT HE
COULD HAVE TAKEN STEPS TO SEE THAT THE CONVICTION AND SENTENCE WERE NOT
PREDICATED ON MISINFORMATION OR MISREADING OF COURT RECORDS, A
REQUIREMENT OF FAIR PLAY WHICH ABSENCE OF COUNSEL WITHHELD FROM THIS
PRISONER.  REVERSED. 

FN1  RESPONDENT RAISED NO PROCEDURAL OR JURISDICTIONAL ISSUES IN THIS
COURT OR IN THE STATE SUPREME COURT.  SINCE PETITIONER HAS THROUGHOUT
BASED HIS CLAIM FOR RELIEF SOLELY ON ALLEGED DEPRIVATION OF FEDERAL
CONSTITUTIONAL RIGHTS, WE ASSUME THAT THOSE QUESTIONS WERE CONSIDERED
BY THE SUPREME COURT OF PENNSYLVANIA AND ARE THEREFORE OPEN HERE. 
HERNDON V. LOWRY, 301 U.S. 242, 247. 

FN2  THE SUPREME COURT OF PENNSYLVANIA HAS FREQUENTLY HELD THAT THE
STATE CONSTITUTIONAL PROVISION ACCORDING DEFENDANTS THE RIGHT TO BE
HEARD BY COUNSEL DOES NOT REQUIRE APPOINTMENT OF COUNSEL IN NON-CAPITAL
CASES.  SEE, FOR EXAMPLE, COMMONWEALTH EX REL. MCGLINN V. SMITH, 344
PA. 41, 24 A.2D 1; COMMONWEALTH EX REL. WITHERS V. ASHE, 350 PA. 493,
39 A.2D 610.  SEE ALSO BETTS V. BRADY, 316 U.S. 455, 465.  THE
PENNSYLVANIA STATUTES REQUIRE ONLY THAT DESTITUTE DEFENDANTS ACCUSED OF
MURDER SHALL BE ASSIGNED COUNSEL.  ACT OF MARCH 22, 1907, 19 PA. STAT.
ANN. SEC. 784. 

THE CHIEF JUSTICE, MR. JUSTICE REED, AND MR. JUSTICE BURTON DISSENT. 

..END :







LICHTER V. UNITED STATES, 334 U.S. 742 


ARGUED NOVEMBER 20-21, 1947.  - DECIDED JUNE 14, 1948.  - 160 F.2D 329
159 F.2D 73-160 F.2D 103, AFFIRMED. 


1.  THE RENEGOTIATION ACT IS CONSTITUTIONAL ON ITS FACE AS AUTHORITY
FOR THE RECOVERY BY THE UNITED STATES OF "EXCESSIVE PROFITS" (LESS TAX
CREDITS) REALIZED BY PRIVATE PARTIES IN THE CIRCUMSTANCES OF THESE
CASES ON SUBCONTRACTS FOR WAR GOODS IN TIME OF WAR WITH CONTRACTORS WHO
WERE ALSO PRIVATE PARTIES - EVEN IN THE ABSENCE OF CONTRACTUAL
PROVISIONS FOR THE RENEGOTIATION OF SUCH PROFITS AND EVEN AS APPLIED TO
CONTRACTS ENTERED INTO PRIOR TO THE ENACTMENT OF THE ACT, PROVIDED
FINAL PAYMENTS HAD NOT BEEN MADE PURSUANT TO SUCH CONTRACTS PRIOR TO
THE DATE OF ENACTMENT OF THE ORIGINAL ACT.  PP. 746, 753-793. 

2.  THE POWER OF CONGRESS TO AUTHORIZE THE RECOVERY OF SUCH EXCESSIVE
PROFITS IS INCLUDED IN THE BROAD SCOPE OF THE WAR POWERS EXPRESSLY
GRANTED TO CONGRESS BY THE CONSTITUTION.  PP. 753-772. 

(A) IN TIME OF WAR, CONGRESS UNQUESTIONABLY HAS THE FUNDAMENTAL POWER
TO CONSCRIPT MEN AND TO REQUISITION PROPERTIES NECESSARY AND PROPER TO
ENABLE IT TO RAISE AND SUPPORT ARMIES.  PP. 756, 765. 

(B)  THE RENEGOTIATION ACT WAS A LAW "NECESSARY AND PROPER" FOR
CARRYING INTO EXECUTION THE WAR POWERS OF CONGRESS AND ESPECIALLY ITS
POWER TO RAISE AND SUPPORT ARMIES.  PP. 757-765. 

(C)  NOT ONLY WAS IT "NECESSARY AND PROPER" FOR CONGRESS TO PROVIDE
FOR THE PRODUCTION OF WAR SUPPLIES IN THE SUCCESSFUL CONDUCT OF THE
WAR, BUT IT WAS WELL WITHIN THE OUTER LIMITS OF THE CONSTITUTIONAL
DISCRETION OF CONGRESS AND THE PRESIDENT TO DO SO UNDER THE TERMS OF
THE RENEGOTIATION ACT IN A MANNER DESIGNED TO ELIMINATE EXCESSIVE
PRIVATE PROFITS.  SEE UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S.
289, 305.  PP. 763-765, 769. 

(D)  THE PLAN FOR RENEGOTIATION OF PROFITS REALIZED BY PRIVATE
PARTIES ON CONTRACTS FOR PRODUCTION OF WAR GOODS - CHOSEN BY CONGRESS
AS AN ALTERNATIVE TO MOBILIZATION OF THE PRODUCTIVE CAPACITY OF THE
NATION INTO A GOVERNMENTAL UNIT ON THE TOTALITARIAN MODEL - SYMBOLIZED
A FREE PEOPLE UNITED IN REACHING UNEQUALLED PRODUCTIVE CAPACITY AND YET
RETAINING THE MAXIMUM OF INDIVIDUAL FREEDOM CONSISTENT WITH A GENERAL
MOBILIZATION OF EFFORT.  PP. 765-772. 

3.  THE AUTHORITY GRANTED FOR ADMINISTRATIVE DETERMINATION OF THE
AMOUNT OF "EXCESSIVE PROFITS," IF ANY, REALIZED ON WAR SUBCONTRACTS WAS
A CONSTITUTIONAL DEFINITION OF ADMINISTRATIVE AUTHORITY AND NOT AN
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER.  PP. 774-787. 

(A)  A CONSTITUTIONAL POWER IMPLIES A POWER OF DELEGATION OF
AUTHORITY UNDER IT SUFFICIENT TO EFFECT ITS PURPOSES.  PP. 778-783. 

(B)  THE ADMINISTRATIVE PRACTICES DEVELOPED UNDER THE ACT
DEMONSTRATED THE DEFINITIVE ADEQUACY OF THE TERM "EXCESSIVE PROFITS" AS
USED IN THE ACT.  P. 783. 

(C)  IN THE LIGHT OF THE PURPOSE OF THE ACT AND ITS FACTUAL
BACKGROUND, THE STATUTORY TERM "EXCESSIVE PROFITS" WAS A SUFFICIENT
EXPRESSION OF LEGISLATIVE POLICY AND STANDARDS TO RENDER IT
CONSTITUTIONAL.  PP. 783-786. 

(D)  THE METHODS PRESCRIBED AND THE LIMITATIONS IMPOSED BY CONGRESS
ON THE CONTEMPLATED ADMINISTRATIVE ACTION HELP TO SUSTAIN ITS
CONSTITUTIONALITY.  PP. 786-787. 

4.  THE WAR POWERS OF CONGRESS AND THE PRESIDENT ARE ONLY THOSE WHICH
ARE TO BE DERIVED FROM THE CONSTITUTION, BUT THE PRIMARY IMPLICATION OF
A WAR POWER IS THAT IT SHALL BE AN EFFECTIVE POWER TO WAGE WAR
SUCCESSFULLY.  P. 782. 

5.  WHILE THE CONSTITUTIONAL STRUCTURE AND CONTROLS OF OUR GOVERNMENT
ARE OUR GUIDES EQUALLY IN WAR AND IN PEACE, THEY MUST BE READ WITH THE
REALISTIC PURPOSES OF THE ENTIRE INSTRUMENT FULLY IN MIND.  P. 782. 

6.  IT IS NOT NECESSARY THAT CONGRESS SUPPLY ADMINISTRATIVE OFFICIALS
WITH A SPECIFIC FORMULA FOR THEIR GUIDANCE IN A FIELD WHERE FLEXIBILITY
AND THE ADAPTATION OF THE CONGRESSIONAL POLICY TO INFINITELY VARIABLE
CONDITIONS CONSTITUTE THE ESSENCE OF THE PROGRAM.  P. 785. 

7.  THE COLLECTION OF RENEGOTIATED EXCESSIVE PROFITS ON A WAR
SUBCONTRACT IS NOT IN THE NATURE OF A PENALTY AND IS NOT A DEPRIVATION
OF A SUBCONTRACTOR OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW IN
VIOLATION OF THE FIFTH AMENDMENT.  PP. 787-788. 

8.  THE GOVERNMENT WAS ENTITLED TO RECOVER EXCESSIVE PROFITS (LESS
TAX CREDITS) FROM EACH OF THE SUBCONTRACTORS IN THESE CASES, WHETHER
THEY AROSE FROM CONTRACTS MADE BEFORE OR AFTER THE PASSAGE OF THE ACT,
PROVIDED FINAL PAYMENTS HAD NOT BEEN MADE PURSUANT TO SUCH CONTRACTS
PRIOR TO THE DATE OF THE ORIGINAL ACT - EVEN THOUGH THEY AROSE OUT OF
CONTRACTS BETWEEN PRIVATE PARTIES AND NOT OUT OF CONTRACTS MADE
DIRECTLY WITH THE GOVERNMENT ITSELF.  PP. 747-753, 788-789. 

9.  IN A SUIT BY THE GOVERNMENT UNDER THE ACT TO RECOVER EXCESSIVE
PROFITS ADMINISTRATIVELY DETERMINED TO HAVE BEEN REALIZED BY
SUBCONTRACTORS UNDER WAR CONTRACTS IN THE CIRCUMSTANCES OF THESE CASES,
SUBCONTRACTORS WHO FAILED TO MAKE TIMELY APPLICATION TO THE TAX COURT
FOR REDETERMINATION OF THE AMOUNT OF SUCH EXCESSIVE PROFITS DO NOT HAVE
THE RIGHT TO RAISE QUESTIONS AS TO THE COVERAGE OF THE ACT, AS TO THE
AMOUNT OF EXCESSIVE PROFITS ADJUDGED TO BE DUE FROM THEM, OR AS TO
OTHER COMPARABLE ISSUES WHICH MIGHT HAVE BEEN PRESENTED BY THEM TO THE
TAX COURT UPON A TIMELY PETITION FOR A REDETERMINATION.  PP. 753-754,
789-793. 

(A)  THE STATUTE AND THE COURSE OF ACTION TAKEN AFFORDED PROCEDURAL
DUE PROCESS TO THE SUBCONTRACTORS IN THESE CASES.  P. 791. 

(B)  THE STATUTORY PROVISION FOR A PETITION TO THE TAX COURT WAS NOT,
IN ANY OF THESE CASES, AN OPTIONAL OR ALTERNATIVE PROCEDURE; IT
PROVIDED THE ONLY PROCEDURE TO SECURE A REDETERMINATION OF THE
EXCESSIVE PROFITS WHICH HAD BEEN ADMINISTRATIVELY DETERMINED TO EXIST. 
P. 792. 

(C)  FAILURE OF THE SUBCONTRACTORS IN THESE CASES TO EXHAUST THAT
PROCEDURE HAS LEFT THEM NO RIGHT TO PRESENT SUCH ISSUES IN THIS COURT. 
P. 792. 

LICHTER ET AL., DOING BUSINESS AS SOUTHERN FIREPROOFING CO., V. UNITED
STATES. 

NO. 105.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT* . 

*TOGETHER WITH NO. 74, POWNALL ET AL. V. UNITED STATES, ON CERTIORARI
TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT; AND NO. 95,
ALEXANDER WOOL COMBING CO. V. UNITED STATES, ON CERTIORARI TO THE
CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT, ARGUED NOVEMBER 21,
1947. 

THE CASES ARE STATED CONCISELY IN THE OPINION WITH CITATIONS TO THE
DECISIONS BELOW, PP. 746-753.  AFFIRMED, P. 793. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE RENEGOTIATION ACT,  FN1  IN TIME OF CRISIS, PRESENTED TO THIS
NATION A NEW LEGISLATIVE SOLUTION OF A MAJOR PHASE OF THE PROBLEM OF
NATIONAL DEFENSE AGAINST WORLD-WIDE AGGRESSION.  THROUGH ITS
CONTRIBUTION TO OUR PRODUCTION PROGRAM IT SOUGHT TO ENABLE US TO TAKE
THE LEADING PART IN WINNING WORLD WAR II ON AN UNPRECEDENTED SCALE OF
TOTAL GLOBAL WARFARE WITHOUT ABANDONING OUR TRADITIONAL FAITH IN AND
RELIANCE UPON PRIVATE ENTERPRISE AND INDIVIDUAL INITIATIVE DEVOTED TO
THE PUBLIC WELFARE. 

IN EACH OF THE THREE CASES BEFORE US THE PRINCIPAL ISSUE IS THE
CONSTITUTIONALITY, ON ITS FACE, OF THE RENEGOTIATION ACT INSOFAR AS IT
IS AUTHORITY FOR THE RECOVERY OF THE EXCESSIVE PROFITS SOUGHT TO BE
RECOVERED BY THE UNITED STATES FROM THE RESPECTIVE PETITIONERS.  IN
EACH CASE THE SECONDARY ISSUE IS WHETHER THE FAILURE OF THE RESPECTIVE
PETITIONERS TO PETITION THE TAX COURT FOR A REDETERMINATION OF THE
AMOUNT, IF ANY, OF THEIR EXCESSIVE PROFITS EXCLUDES FROM CONSIDERATION
HERE THE COVERAGE OF THE ACT, THE AMOUNT OF THE PROFITS AND OTHER
COMPARABLE ISSUES WHICH COULD HAVE BEEN PRESENTED TO THE TAX COURT.  IN
EACH OF THESE CASES THE DISTRICT COURT HAS HELD THAT THE ACT WAS
CONSTITUTIONAL AND THAT, BY FAILURE TO PETITION THE TAX COURT FOR THEIR
REDETERMINATION, THE EXISTING ORDERS HAVE BECOME FINAL AS CLAIMED BY
THE GOVERNMENT.  EACH CIRCUIT COURT OF APPEALS HAS AFFIRMED,
UNANIMOUSLY, THE JUDGMENT APPEALED TO IT.  WE AGREE WITH THE COURTS
BELOW. 

IN EACH OF THESE CASES THE UNITED STATES OBTAINED A JUDGMENT FOR A
SUM ALLEGED TO BE OWED TO IT PURSUANT TO A DETERMINATION OF EXCESSIVE
PROFITS UNDER THE RENEGOTIATION ACT.  THE DETERMINATIONS OF EXCESSIVE
PROFITS IN THE RESPECTIVE CASES WERE MADE BY THE UNDER SECRETARY OF WAR
OR BY THE WAR CONTRACTS PRICE ADJUSTMENT BOARD AFTER THE REVENUE ACT OF
1943 HAD BEEN APPROVED, FEBRUARY 25, 1944.  THAT ACT CONTAINED, IN ITS
TITLE VII, THE SO-CALLED SECOND RENEGOTIATION ACT WHICH INCLUDED
PROVISIONS FOR THE FILING WITH THE TAX COURT OF PETITIONS FOR THE
REDETERMINATIONS OF EXCESS PROFITS.  NONE OF THESE PETITIONERS,
HOWEVER, FILED SUCH A PETITION WITH THE TAX COURT.  ON THE OTHER HAND,
THE RESPECTIVE PETITIONERS HAVE RELIED UPON THEIR CLAIMS THAT, AS A
MATTER OF LAW, THE RENEGOTIATION ACT IS UNCONSTITUTIONAL ON ITS FACE
INSOFAR AS IT PURPORTS TO AUTHORIZE THE JUDGMENTS WHICH HAVE BEEN TAKEN
AGAINST THE RESPECTIVE PETITIONERS.  THE PETITIONERS CONTEND ALSO THAT
THEIR FAILURES TO FILE PETITIONS WITH THE TAX COURT HAVE NOT FORECLOSED
THEIR RESPECTIVE RIGHTS TO CONTEST HERE THE COVERAGE OF THE ACT, THE
AMOUNT OF THE EXCESS PROFITS FOUND AGAINST THEM AND OTHER COMPARABLE
ISSUES WHICH THEY MIGHT HAVE PRESENTED TO THE TAX COURT. 

            NO. 105(THE LICHTER CASE). 

IN MAY, 1945, THE UNITED STATES FILED ITS COMPLAINT IN THE DISTRICT
COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO AGAINST
THE PETITIONERS, JACOB LICHTER AND JENNIE L. LICHTER, ENGAGED IN THE
CONSTRUCTION BUSINESS IN CINCINNATI, OHIO, UNDER THE NAME OF THE
SOUTHERN FIREPROOFING COMPANY, A COPARTNERSHIP.  THE COMPLAINT WAS
FOUNDED UPON THE DETERMINATION BY THE UNDER SECRETARY OF WAR, DATED
OCTOBER 20, 1944, THAT $70,000 OF THE PROFITS REALIZED BY PETITIONERS
DURING THE CALENDAR YEAR 1942 FROM NINE SUBCONTRACTS, EXECUTED IN 1942
FOR A TOTAL PRICE OF $710,224.16, WERE, UNDER THE RENEGOTIATION ACT,
EXCESSIVE PROFITS.  THE COMPLAINT SHOWED THAT THE PETITIONERS WERE
ENTITLED TO A TAX CREDIT OF $42,980.61 AGAINST SUCH EXCESSIVE PROFITS. 
IT ALLEGED, MOREOVER, THAT THE PETITIONERS HAD NOT, WITHIN THE REQUIRED
PERIOD, PETITIONED THE TAX COURT FOR A REDETERMINATION OF THE ORDER IN
QUESTION AND HAD NOT PAID OR OTHERWISE ELIMINATED THE AMOUNT OF
$27,019.39 THUS DUE TO THE UNITED STATES. 

THE PETITIONERS ADMITTED THAT THE UNDER SECRETARY HAD MADE THE
DETERMINATION AS ALLEGED; THAT IF HIS ORDER WERE VALID THE PETITIONERS
WERE ENTITLED TO THE TAX CREDIT SPECIFIED; AND THAT THEY HAD NOT PAID
THE SUM DEMANDED NOR HAD THEY FILED A PETITION WITH THE TAX COURT FOR A
REDETERMINATION OF THE EXCESSIVE PROFITS, IF ANY.  THEY PUT IN ISSUE,
ON SPECIFICALLY STATED GROUNDS, THE CONSTITUTIONALITY OF THE
RENEGOTIATION ACT INSOFAR AS IT MIGHT BE AUTHORITY FOR THE RECOVERY OF
THE PROFITS SOUGHT TO BE RECOVERED, AND THEY PUT IN ISSUE THE
APPLICABILITY TO THEM OF ANY REQUIREMENT THAT THEY SEEK IN THE TAX
COURT A REDETERMINATION OF THE PROFITS WHICH THEY HAD BEEN ORDERED TO
REPAY TO THE UNITED STATES.  THEY ALLEGED ALSO THAT:  OF THE NINE
SUBCONTRACTS WHICH WERE MADE THE BASIS OF RENEGOTIATION, ALL WERE
EXECUTED DURING THE CALENDAR YEAR 1942; FOUR WERE EXECUTED BEFORE APRIL
28, 1942, THE DATE OF THE ORIGINAL RENEGOTIATION ACT; NONE CONTAINED
CLAUSES PERMITTING OR REQUIRING THEIR RENEGOTIATION; ONLY TWO OF THEM
WERE FOR AMOUNTS IN EXCESS OF $100,000 EACH; THESE TWO WERE AMONG THOSE
WHICH HAD BEEN EXECUTED BEFORE APRIL 28, 1942; AND NO EXCESSIVE PROFITS
HAD BEEN IN FACT EARNED BY THE PETITIONERS DURING 1942.  FINALLY THEY
ALLEGED THAT THE SEVERAL CONTRACTS REFERRED TO WERE SUBCONTRACTS
ENTERED INTO UNDER PRIME CONTRACTS WHICH HAD BEEN AWARDED BY A
DEPARTMENT OF THE GOVERNMENT AS THE RESULT OF COMPETITIVE BIDDING FOR
THE CONSTRUCTION OF BUILDINGS AND FACILITIES AND THE SUBCONTRACTS
THEMSELVES HAD BEEN OBTAINED BY PETITIONERS AFTER FURTHER COMPETITIVE
BIDDING.  FOR THESE AND OTHER REASONS STATED IN THE ANSWER THE
CONTRACTS WERE CLAIMED TO BE EXEMPT FROM RENEGOTIATION. 

THE UNITED STATES MOVED FOR JUDGMENT ON THE PLEADINGS AND, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT.  AFFIDAVITS WERE FILED IN SUPPORT OF
THOSE MOTIONS.  THESE INCLUDED PARTICULARLY THE COMPREHENSIVE
AFFIDAVITS OF ROBERT P. PATTERSON, THEN UNDER SECRETARY OF WAR, AND OF
H. STRUVE HENSEL, THEN ASSISTANT SECRETARY OF THE NAVY.  THESE
AFFIDAVITS SET FORTH THE GENERAL BACKGROUND OF THE RENEGOTIATION ACT
AND THE BASIS FOR CLAIMING THAT THE RENEGOTIATION OF WAR CONTRACTS WAS
NECESSARY IN ORDER TO SUSTAIN THIS NATION'S SHARE OF THE BURDEN OF
WINNING WORLD WAR II. COUNTERPARTS OF THESE TWO AFFIDAVITS WERE FILED
IN EACH OF THE OTHER CASES BEFORE US.  THE PETITIONERS, ON THE OTHER
HAND, MOVED TO DISMISS THE COMPLAINT ON THE GROUNDS THAT IT FAILED TO
STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED AND THAT THE PROFITS
IN QUESTION WERE EXEMPT FROM THE ACT. 

THE DISTRICT COURT MADE FINDINGS OF FACT SUBSTANTIALLY AS STATED IN
THE COMPLAINT AND ADMITTED IN THE ANSWER.  IT CONCLUDED THAT THERE WAS
NO GENUINE ISSUE AS TO ANY MATERIAL FACT AND THAT THE UNITED STATES WAS
ENTITLED TO JUDGMENT AS A MATTER OF LAW FOR $27,019.39, WITH INTEREST
AT SIX PERCENT PER ANNUM FROM NOVEMBER 6, 1944.  68 F.SUPP.  19.  THE
CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED THE JUDGMENT. 
IT HELD EXPRESSLY THAT THE RENEGOTIATION ACT WAS VALID ON ITS FACE AND
THAT THE PETITIONERS, BY REASON OF THEIR FAILURE TO PETITION THE TAX
COURT FOR A REDETERMINATION OF THE AMOUNT OF THE EXCESSIVE PROFITS, IF
ANY, WERE BARRED FROM MAKING THEIR OTHER ATTACKS ON THE SECRETARY'S
DETERMINATION OF SUCH EXCESSIVE PROFITS.  160 F.2D 329.  BECAUSE OF THE
BASIC SIGNIFICANCE OF THE CONSTITUTIONAL QUESTIONS INVOLVED WE GRANTED
CERTIORARI.  331 U.S. 802. 

                      NO. 74(THE POWNALL CASE). 

IN SEPTEMBER, 1945, THE UNITED STATES FILED ITS COMPLAINT IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
CALIFORNIA AGAINST THE PETITIONERS, A.V. POWNALL, GRACE M. POWNALL, AND
HENES-MORGAN MACHINERY COMPANY, LIMITED, A CALIFORNIA CORPORATION, ALL
THREE DOING BUSINESS IN LOS ANGELES, CALIFORNIA, AS COPARTNERS UNDER
THE NAME OF GENERAL PRODUCTS COMPANY.  THE RECORD INDICATES THAT THEY
WERE THERE ENGAGED IN THE PRODUCTION OF PRECISION PARTS, MACHINERY AND
TOOLS FOR USE BY WAR CONTRACTORS.  THE COMPLAINT WAS FOUNDED UPON A
DETERMINATION MADE BY THE UNDER SECRETARY OF WAR, ON BEHALF OF THE WAR
CONTRACTS PRICE ADJUSTMENT BOARD, DATED DECEMBER 27, 1944, TO THE
EFFECT THAT $628,373.14 OF THE PROFITS REALIZED BY PETITIONERS DURING
THE CALENDAR YEAR 1943 ON THEIR CONTRACTS AND SUBCONTRACTS, SUBJECT TO
RENEGOTIATION PURSUANT TO THE RENEGOTIATION ACT, WERE EXCESSIVE
PROFITS.  THE COMPLAINT SHOWED THAT THE PETITIONERS WERE ENTITLED TO A
TAX CREDIT OF $514,663.95 AGAINST SUCH PROFITS.  IT ALLEGED, MOREOVER,
THAT THE PETITIONERS HAD NOT, WITHIN THE REQUIRED PERIOD, PETITIONED
THE TAX COURT FOR A REDETERMINATION OF THE ORDER IN QUESTION AND HAD
NOT PAID THE SUM OF $113,709.19 THUS CLAIMED BY THE UNITED STATES.  THE
PETITIONERS ADMITTED THAT THE UNDER SECRETARY HAD MADE THE
DETERMINATION AS ALLEGED; THAT THE BOARD HAD ADOPTED HIS ORDER; THAT
THE APPROPRIATE TAX CREDIT WAS AS ALLEGED; THAT NO PETITION FOR
REDETERMINATION HAD BEEN FILED WITH THE TAX COURT; THAT THE TIME FOR
FILING HAD EXPIRED; AND THAT NO PAYMENT OF THE AMOUNT CLAIMED HAD BEEN
MADE.  THE PETITIONERS ALLEGED, HOWEVER, THAT THE RENEGOTIATION ACT WAS
INVALID ON ITS FACE ON NUMEROUS SPECIFICALLY STATED CONSTITUTIONAL
GROUNDS; THAT THE UNDER SECRETARY'S ORDER WAS INVALID IN THAT IT WAS
BASED ON UNDISCLOSED DATA AND CONTAINED NO FINDINGS; AND THAT NO SINGLE
CONTRACT UNDER CONSIDERATION EXCEEDED IN AMOUNT THE SUM OF $99,000. 

THE UNITED STATES MOVED FOR JUDGMENT ON THE PLEADINGS AND, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT.  THE PETITIONERS DID THE SAME. 
UNDER THE STIPULATIONS OF THE PARTIES THERE WERE NO DISPUTED ISSUES OF
FACT AND THE ONLY QUESTIONS LEFT FOR DECISION WERE THOSE AS TO THE
CONSTITUTIONAL VALIDITY OF THE ACT AND AS TO ITS INTERPRETATION IF
FOUND TO BE VALID. 

THE DISTRICT COURT DENIED THE MOTIONS OF BOTH PARTIES.  HOWEVER,
RULING ON THE MERITS OF THE CAUSE THUS BEFORE IT, IT FOUND THE FACTS TO
BE SUBSTANTIALLY AS ALLEGED IN THE COMPLAINT AND AS STIPULATED.  IT
HELD THE ACT TO BE VALID ON ITS FACE AND HELD THE UNAPPEALED
DETERMINATION OF EXCESSIVE PROFITS TO BE FINAL.  IT RENDERED JUDGMENT
FOR THE UNITED STATES FOR $121,043.39, EVIDENTLY REPRESENTING
$113,709.19, WITH INTEREST AT SIX PERCENT PER ANNUM FROM MARCH 13,
1945.  65 F.SUPP.  147, AND SEE FINDINGS OF FACT, CONCLUSIONS OF LAW
AND JUDGMENT OF THE COURT.  THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT AFFIRMED THE JUDGMENT.  IT FOLLOWED ITS EARLIER DECISION IN
SPAULDING V. DOUGLAS AIRCRAFT CO., 154 F.2D 419, IN UPHOLDING THE
CONSTITUTIONALITY OF THE ACT AND EXPRESSLY HOLDING THAT THE
PETITIONERS, BY NOT HAVING PETITIONED THE TAX COURT FOR RELIEF, HAD
FAILED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES.  ACCORDINGLY, IT HELD
THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION TO CONSIDER THE
PETITIONERS' CONTENTIONS AS TO THE COVERAGE OF THE ACT.  159 F.2D 73. 
WE GRANTED CERTIORARI.  331 U.S. 802. 

                     NO. 95(THE ALEXANDER CASE). 

IN AUGUST, 1945, THE UNITED STATES FILED ITS COMPLAINT IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS
AGAINST THE PETITIONER, ALEXANDER WOOL COMBING COMPANY, A MASSACHUSETTS
CORPORATION DOING BUSINESS AT LOWELL, MASSACHUSETTS, AND THERE ENGAGED
IN THE BUSINESS OF SCOURING WOOL AND COMBING IT INTO TOPS AND NOILS FOR
COMMISSIONS PAID TO IT BY THE OWNERS OF THE WOOL.  THE COMPLAINT WAS
FOUNDED UPON TWO DETERMINATIONS BY THE UNDER SECRETARY OF WAR, BOTH
DATED SEPTEMBER 6, 1944.  ONE DETERMINED THAT $22,500 OF THE PROFITS
REALIZED BY THE PETITIONER DURING ITS FISCAL YEAR ENDED JUNE 30, 1942,
AND THE OTHER THAT $45,000 OF THE PROFITS REALIZED BY THE PETITIONER
DURING ITS FISCAL YEAR ENDED JUNE 30, 1943, UNDER ITS CONTRACTS AND
SUBCONTRACTS WHICH WERE ALLEGED TO BE SUBJECT TO THE PROVISIONS OF THE
RENEGOTIATION ACT, WERE EXCESSIVE.  THE COMPLAINT SHOWED THAT THE
PETITIONER WAS ENTITLED TO A TAX CREDIT OF $15,020.80 AGAINST SUCH
EXCESSIVE PROFITS FOR THE FISCAL YEAR ENDED JUNE 30, 1942, AND OF
$36,596.42 AGAINST THOSE FOR THE FISCAL YEAR ENDED JUNE 30, 1943.  THE
COMPLAINT ALLEGED, MOREOVER, THAT THE PETITIONER HAD NOT, WITHIN THE
REQUIRED PERIODS, PETITIONED THE TAX COURT FOR A REDETERMINATION OF
EITHER OF THE ORDERS IN QUESTION; THAT THE RESPECTIVE PERIODS FOR
FILING SUCH PETITIONS HAD EXPIRED; AND THAT THE PETITIONER HAD NOT
PAID, OR OTHERWISE ELIMINATED, THE AMOUNT OF $15,882.78 THUS DUE TO THE
UNITED STATES.  THE PETITIONER ADMITTED THE FACTUAL ALLEGATIONS OF THE
COMPLAINT BUT DENIED THAT ANY AMOUNT WAS OWING TO THE UNITED STATES. 
IT CLAIMED THAT THE DETERMINATIONS MADE BY THE UNDER SECRETARY WERE
VOID BECAUSE MADE WITHOUT DUE PROCESS OF LAW AND WERE UNENFORCIBLE AS
TO THE PETITIONER BECAUSE, AS APPLIED TO IT, THEY WERE UNCONSTITUTIONAL
FOR SEVERAL SPECIFICALLY STATED REASONS.    THE UNITED STATES MOVED FOR
JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, FOR SUMMARY
JUDGMENT.  IN SUPPORT OF THESE MOTIONS THE ABOVE-MENTIONED AFFIDAVITS
OF ROBERT P. PATTERSON, UNDER SECRETARY OF WAR, AND OF H. STRUVE
HENSEL, ASSISTANT SECRETARY OF THE NAVY, AND SEVERAL OTHERS WERE
FILED.  EVIDENCE BOTH ORAL AND IN AFFIDAVIT FORM WAS SUBMITTED IN
OPPOSITION.  THE DISTRICT COURT STATED IN ITS OPINION, 66 F.SUPP.  389,
391, THAT THE PETITIONER "HAD NO DIRECT CONTRACTS WITH ANY DEPARTMENT
OR AGENCY OF THE UNITED STATES.  IT COMBED WOOL FOR DIFFERENT PRIVATE
COMPANIES.  IT KNEW THAT SOME OF THE WOOL IT COMBED FOR THE COMPANIES
WAS DESTINED FOR USE IN GOVERNMENT CONTRACTS, BUT IT WAS AND IS
IGNORANT AS TO THE DESTINATION OF OTHER WOOL."  THAT COURT,
NEVERTHELESS, RENDERED JUDGMENT IN FAVOR OF THE UNITED STATES, FOR
$15,882.78, WITH INTEREST AT SIX PERCENT PER ANNUM FROM SEPTEMBER 6,
1944.  IT HELD THAT THE WAR POWERS OF CONGRESS WERE SUFFICIENT TO
ENABLE IT TO AUTHORIZE THE RECAPTURE OF EXCESSIVE PROFITS SUCH AS
THESE; THAT THE STANDARD OF "EXCESSIVE PROFITS" WAS SUFFICIENT TO
SATISFY THE CONSTITUTIONAL LIMITATIONS ON THE POWER OF CONGRESS TO
DELEGATE AUTHORITY; THAT ANY DEFECTS IN THE DEPARTMENTAL PROCEEDINGS
WERE IMMATERIAL IN VIEW OF THE OPPORTUNITY AFFORDED THE PETITIONER FOR
A TRIAL DE NOVO AND FOR A REDETERMINATION OF EXCESSIVE PROFITS, IF ANY,
IN THE TAX COURT; AND THAT PETITIONER'S DEFENSES ON THE GROUND OF LACK
OF COVERAGE OR OF RETROACTIVITY OF THE APPLICATION OF THE RENEGOTIATION
ACT TO THE PETITIONER WERE LOST TO IT BY ITS FAILURE TO SEEK RELIEF
FROM THE TAX COURT.  THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT
SAID, PER CURIAM:  "WE THINK THE COURT BELOW ADEQUATELY COVERED ALL THE
ISSUES IN THIS CASE AND WE AFFIRM ITS JUDGMENT UPON THE GROUNDS AND FOR
THE REASONS SET FORTH IN ITS OPINION  ...  "  160 F.2D 103.  FN2  WE
GRANTED CERTIORARI.  331 U.S. 802. 

                           THE BACKGROUND. 

WE HAVE TWO MAIN ISSUES BEFORE US:  (1) THE CONSTITUTIONALITY OF THE
RENEGOTIATION ACT ON ITS FACE AND (2) THE FINALITY OF THE DETERMINATION
OF THE EXCESSIVE PROFITS MADE UNDER IT IN THE ABSENCE OF A PETITION
FILED WITH THE TAX COURT WITHIN THE REQUIRED TIME, SEEKING A
REDETERMINATION OF THOSE PROFITS.  IN THE LICHTER CASE WE HAVE ISSUES
AS TO PROFITS MADE IN THE CALENDAR YEAR 1942, IN THE POWNALL CASE AS TO
PROFITS MADE IN THE CALENDAR YEAR 1943, AND IN THE ALEXANDER CASE AS TO
CERTAIN PROFITS MADE IN THE FISCAL YEAR ENDED JUNE 30, 1942, AND AS TO
OTHER PROFITS MADE IN THE FISCAL YEAR ENDED JUNE 30, 1943.  IN EACH
CASE WE UPHOLD THE CONSTITUTIONALITY OF THE ACT AS PROVIDING THE
NECESSARY AUTHORIZATION FOR THE JUDGMENTS RENDERED.  WE ALSO ACCEPT THE
FINALITY GIVEN BY THE COURTS BELOW TO THE ADMINISTRATIVE DETERMINATIONS
MADE OF THE EXCESSIVE PROFITS, ALTHOUGH THE STATUTORY SITUATION AS A
BASIS FOR THE FINALITY OF SUCH DETERMINATIONS IS NOT PRECISELY THE SAME
IN EACH CASE.  BY REASON OF THE FINALITY THUS ATTACHED TO THE
DETERMINATIONS MADE AS TO EXCESSIVE PROFITS IN THESE CASES, WE DO NOT
PASS UPON THE ISSUES ATTEMPTED TO BE RAISED HERE AS TO THE COVERAGE OF
THE ACT, THE AMOUNT OF THE PROFITS, OR OTHER MATTERS WHICH THE
PETITIONERS MIGHT HAVE PRESENTED TO THE TAX COURT BUT DID NOT. 

IN PROCEDURE WHICH AFFECTS PROPERTY RIGHTS AS DIRECTLY AND
SUBSTANTIALLY AS THAT AUTHORIZED BY THE RENEGOTIATION ACT, THE
GOVERNMENTAL ACTION AUTHORIZED, ALTHOUGH RESTING ON VALID
CONSTITUTIONAL GROUNDS, IS CAPABLE OF GROSS ABUSE.  THE VERY FINALITY
OF THE ADMINISTRATIVE DETERMINATIONS HERE UPHELD EMPHASIZES THE
SERIOUSNESS OF THE INJUSTICES WHICH CAN RESULT FROM THE ABUSE OF THE
LARGE POWERS VESTED IN THE ADMINISTRATIVE OFFICIALS.  WE DO NOT
MINIMIZE THE SERIOUSNESS OF COMPLAINTS WHICH THUS MAY BE CUT OFF
WITHOUT RELIEF IN THE NAME OF THE NECESSITIES OF WAR AND FOR THE SAKE
OF THE DEFENSE OF THE NATION WHEN ITS SURVIVAL IS AT STAKE.  WE RE
EMPHASIZE THAT, UNDER THESE CONDITIONS, THERE IS GREAT NEED BOTH FOR
ADEQUATE CHANNELS OF PROCEDURAL DUE PROCESS AND FOR CAREFUL CONFORMITY
TO THOSE CHANNELS.  IN TOTAL WAR IT IS NECESSARY THAT A CIVILIAN MAKE
SACRIFICES OF HIS PROPERTY AND PROFITS WITH AT LEAST THE SAME FORTITUDE
AS THAT WITH WHICH A DRAFTED SOLDIER MAKES HIS TRADITIONAL SACRIFICES
OF COMFORT, SECURITY AND LIFE ITSELF.  WITHIN PROCEDURE THUS AUTHORIZED
BY THE CONSTITUTION, THE CONGRESS AND THE ADMINISTRATION, AND HERE
AFFIRMED, RESULTING INJUSTICES CAN AND SHOULD BE CAREFULLY EXAMINED AND
AS FAR AS POSSIBLE RELIEVED.  IN WAR BOTH THE RAISING AND THE SUPPORT
OF THE ARMED FORCES ARE ESSENTIAL.  BOTH REQUIRE MOBILIZATION AND
CONTROL UNDER THE AUTHORITY OF CONGRESS.  BOTH ARE ENTITLED ALSO TO
SUCH POSTWAR RELIEF AS MAY BE AUTHORIZED BY CONGRESS. 

THE RENEGOTIATION ACT WAS DEVELOPED AS A MAJOR WARTIME POLICY OF
CONGRESS COMPARABLE TO THAT OF THE SELECTIVE SERVICE ACT.  THE
AUTHORITY OF CONGRESS TO AUTHORIZE EACH OF THEM SPRANG FROM ITS WAR
POWERS.  EACH WAS A PART OF A NATIONAL POLICY ADOPTED IN TIME OF CRISIS
IN THE CONDUCT OF TOTAL GLOBAL WARFARE BY A NATION DEDICATED TO THE
PRESERVATION, PRACTICE AND DEVELOPMENT OF THE MAXIMUM MEASURE OF
INDIVIDUAL FREEDOM CONSISTENT WITH THE UNITY OF EFFORT ESSENTIAL TO
SUCCESS. 

WITH THE ADVENT OF SUCH WARFARE, MOBILIZED PROPERTY IN THE FORM OF
EQUIPMENT AND SUPPLIES BECAME AS ESSENTIAL AS MOBILIZED MANPOWER. 
MOBILIZATION OF EFFORT EXTENDED NOT ONLY TO THE UNIFORMED ARMED
SERVICES BUT TO THE ENTIRE POPULATION.  BOTH ACTS WERE A FORM OF
MOBILIZATION.  THE LANGUAGE OF THE CONSTITUTION AUTHORIZING SUCH
MEASURES IS BROAD RATHER THAN RESTRICTIVE.  IT SAYS "THE CONGRESS SHALL
HAVE POWER  ...  TO RAISE AND SUPPORT ARMIES, BUT NO APPROPRIATION OF
MONEY TO THAT USE SHALL BE FOR A LONGER TERM THAN TWO YEARS; ...  "
ART. I, SEC. 8, CL. 12.  FN3  THIS PLACES EMPHASIS UPON THE SUPPORTING
AS WELL AS UPON THE RAISING OF ARMIES.  THE POWER OF CONGRESS AS TO
BOTH IS INESCAPABLY EXPRESS, NOT MERELY IMPLIED.  THE CONSCRIPTION OF
MANPOWER IS A MORE VITAL INTERFERENCE WITH THE LIFE, LIBERTY AND
PROPERTY OF THE INDIVIDUAL THAN IS THE CONSCRIPTION OF HIS PROPERTY OR
HIS PROFITS OR ANY SUBSTITUTE FOR SUCH CONSCRIPTION OF THEM.  FOR HIS
HAZARDOUS, FULL-TIME SERVICE IN THE ARMED FORCES A SOLDIER IS PAID
WHATEVER THE GOVERNMENT DEEMS TO BE A FAIR BUT MODEST COMPENSATION. 
COMPARATIVELY SPEAKING, THE MANUFACTURER OF WAR GOODS UNDERGOES NO SUCH
HAZARD TO HIS PERSONAL SAFETY AS DOES A FRONT-LINE SOLDIER AND YET THE
RENEGOTIATION ACT GIVES HIM FAR BETTER ASSURANCE OF A REASONABLE RETURN
FOR HIS WARTIME SERVICES THAN THE SELECTIVE SERVICE ACT AND ALL ITS
RELATED LEGISLATION GIVE TO THE MEN IN THE ARMED FORCES.  THE
CONSTITUTIONALITY OF THE CONSCRIPTION OF MANPOWER FOR MILITARY SERVICE
IS BEYOND QUESTION.  THE CONSTITUTIONAL POWER OF CONGRESS TO SUPPORT
THE ARMED FORCES WITH EQUIPMENT AND SUPPLIES IS NO LESS CLEAR AND
SWEEPING.  FN4  IT IS VALID, A FORTIORI. 

IN VIEW OF THIS POWER "TO RAISE AND SUPPORT ARMIES,  ...  " AND THE
POWER GRANTED IN THE SAME ARTICLE OF THE CONSTITUTION "TO MAKE ALL LAWS
WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE
FOREGOING POWERS,  ...  " THE ONLY QUESTION REMAINING IS WHETHER THE
RENEGOTIATION ACT WAS A LAW "NECESSARY AND PROPER FOR CARRYING INTO
EXECUTION" THE WAR POWERS OF CONGRESS AND ESPECIALLY ITS POWER TO
SUPPORT ARMIES. 

IT IS IMPOSSIBLE HERE TO PICTURE ADEQUATELY ALL THAT MIGHT HAVE BEEN
"NECESSARY AND PROPER" IN 1942-1944 TO MEET THE UNPRECEDENTED
RESPONSIBILITY FACING CONGRESS IN THIS FIELD.  WE DO, HOWEVER, CATCH A
GLIMPSE OF IT IN AUTHORITATIVE, CONTEMPORANEOUS DESCRIPTIONS OF THE
SITUATION.  ACCORDINGLY, WE HAVE SET FORTH IN THE MARGIN EXCERPTS FROM
THE MESSAGE OF THE PRESIDENT TO THE CONGRESS UPON THE STATE OF THE
UNION, JANUARY 6, 1942,  FN5  FROM A REPORT OF THE SPECIAL COMMITTEE OF
THE SENATE INVESTIGATING THE NATIONAL DEFENSE PROGRAM UNDER THE
CHAIRMANSHIP OF SENATOR HARRY S. TRUMAN, OF MISSOURI, MARCH 30, 1943,
FN6  AND FROM THE AFFIDAVIT OF ROBERT P. PATTERSON, UNDER SECRETARY OF
WAR, DATED AUGUST 3, 1945,  FN7  IN THE FORM FILED IN EACH OF THE THREE
CASES BEFORE US. 

THE ABOVE-MENTIONED EXCERPTS DESCRIBE A DEMAND FOR PRODUCTION OF WAR
SUPPLIES IN PROPORTIONS PREVIOUSLY UNIMAGINED.  THEY CALL FOR
PRODUCTION IN A VOLUME NEVER BEFORE APPROXIMATED AND AT AN UNDREAMED OF
SPEED.  THE RESULTS AMPLY DEMONSTRATED THE INFINITE VALUE OF THAT
PRODUCTION IN WINNING THE WAR.  IT PROVED TO BE A SINE QUA NON
CONDITION OF THE SURVIVAL OF THE NATION.  NOT ONLY WAS IT "NECESSARY
AND PROPER" FOR CONGRESS TO PROVIDE FOR SUCH PRODUCTION IN THE
SUCCESSFUL CONDUCT OF THE WAR, BUT IT WAS WELL WITHIN THE OUTER LIMITS
OF THE CONSTITUTIONAL DISCRETION OF CONGRESS AND THE PRESIDENT TO DO SO
UNDER THE TERMS OF THE RENEGOTIATION ACT.  ACCORDINGLY, THE QUESTION
BEFORE US AS TO THE CONSTITUTIONALITY OF THE RENEGOTIATION ACT IS NOT
THAT OF THE POWER OF THE GOVERNMENT TO RENEGOTIATE AND RECAPTURE WAR
PROFITS.  THE ONLY QUESTIONS ARE WHETHER THE PARTICULAR METHOD OF
RENEGOTIATION AND THE ADMINISTRATIVE PROCEDURE PRESCRIBED CONFORMED TO
THE CONSTITUTIONAL LIMITATIONS UNDER WHICH CONGRESS WAS PERMITTED TO
EXERCISE ITS BASIC POWERS. 

OUR FIRST QUESTION RELATES TO THE METHOD OF ADJUSTING NET
COMPENSATION FOR WAR SERVICES THROUGH THE COMPULSORY "RENEGOTIATION" OF
PROFITS UNDER EXISTING CONTRACTS BETWEEN PRIVATE PARTIES, INCLUDING
RECOURSE TO UNILATERAL ORDERS FOR PAYMENTS INTO THE TREASURY OF THE
UNITED STATES OF SUCH PORTIONS OF THOSE PROFITS AS WERE DETERMINED BY
THE ADMINISTRATIVE OFFICIALS OF THAT GOVERNMENT TO BE "EXCESSIVE
PROFITS."  THERE WERE ADDED THE LIMITATIONS THAT THE CONTRACTS WERE FOR
WAR GOODS IN TIME OF WAR, THE ULTIMATE PAYMENT FOR WHICH WAS, IN ANY
EVENT, TO COME FROM THE GOVERNMENT AND THAT, AT THE TIME OF THIS
IMPINGEMENT OF THE RENEGOTIATION ACT UPON THEM, THE CONTRACTS MUST NOT
HAVE BEEN COMPLETED TO THE EXTENT THAT FINAL PAYMENTS HAD BEEN MADE ON
THEM. 

ONE APPROACH TO THE QUESTION OF THE CONSTITUTIONAL POWER OF CONGRESS
OVER THE PROFITS ON THESE CONTRACTS IS TO RECOGNIZE THAT CONGRESS, IN
TIME OF WAR, UNQUESTIONABLY HAS THE FUNDAMENTAL POWER, PREVIOUSLY
DISCUSSED, TO CONSCRIPT MEN AND TO REQUISITION THE PROPERTIES NECESSARY
AND PROPER TO ENABLE IT TO RAISE AND SUPPORT ITS ARMIES.  CONGRESS
FURTHERMORE HAS A PRIMARY OBLIGATION TO BRING ABOUT WHATEVER PRODUCTION
OF WAR EQUIPMENT AND SUPPLIES SHALL BE NECESSARY TO WIN A WAR.  GIVEN
THIS MISSION, CONGRESS THEN HAD TO CHOOSE BETWEEN POSSIBLE ALTERNATIVES
FOR ITS PERFORMANCE.  IN THE LIGHT OF THE COMPELLING NECESSITY FOR THE
IMMEDIATE PRODUCTION OF VAST QUANTITIES OF WAR GOODS, THE FIRST
ALTERNATIVE, ALL TOO CLEARLY EVIDENT TO THE WORLD, WAS THAT WHICH
CONGRESS DID NOT CHOOSE, NAMELY, THAT OF MOBILIZING THE PRODUCTIVE
CAPACITY OF THE NATION INTO A GOVERNMENTAL UNIT ON THE TOTALITARIAN
MODEL.  THIS WOULD HAVE MEANT THE CONSCRIPTION OF PROPERTY AND OF
WORKMEN.  IT WOULD HAVE MEANT THE RAISING OF SUPPLIES FOR THE ARMIES IN
MUCH THE SAME MANNER AS THAT IN WHICH CONGRESS RAISED THE MANPOWER FOR
SUCH ARMIES.  ALREADY THE NATION HAD SOME UNITS OF PRODUCTION OF
MILITARY SUPPLIES IN THE FORM OF ARSENALS, NAVY YARDS, AND IN THE
INCREASING NUMBER OF GOVERNMENTALLY OWNED, IF NOT OPERATED, WAR
MATERIAL PLANTS.  THE PRODUCTION OF THE ATOMIC BOMBS WAS ONE EXAMPLE OF
A WAR INDUSTRY OWNED AND OPERATED EXCLUSIVELY BY THE GOVERNMENT.  FACED
WITH THIS IRONICAL ALTERNATIVE OF CONVERTING THE NATION IN EFFECT INTO
A TOTALITARIAN STATE IN ORDER TO PRESERVE ITSELF FROM TOTALITARIAN
DOMINATION, THAT ALTERNATIVE WAS STEADFASTLY REJECTED.  THE PLAN FOR
RENEGOTIATION OF PROFITS WHICH WAS CHOSEN IN ITS PLACE BY CONGRESS
APPEARS IN ITS TRUE LIGHT AS THE VERY SYMBOL OF A FREE PEOPLE UNITED IN
REACHING UNEQUALLED PRODUCTIVE CAPACITY AND YET RETAINING THE MAXIMUM
OF INDIVIDUAL FREEDOM CONSISTENT WITH A GENERAL MOBILIZATION OF
EFFORT. 

SOMEWHAT CRUDE IN ITS INITIAL STATUTORY SIMPLICITY, THE RENEGOTIATION
ACT DEVELOPED RAPIDLY AS THE DEMAND FOR WAR PRODUCTION INCREASED BEYOND
PRECEDENT.  FIRST APPROVED APRIL 28, 1942, LESS THAN FIVE MONTHS AFTER
OUR DECLARATION OF WAR, THE ACT WAS ADJUSTED AND STRENGTHENED IN ITS
EFFECTIVENESS AND FAIRNESS BY THE NUMEROUS AMENDMENTS MADE TO IT.  FN8
THE NATION PREVIOUSLY HAD EXPERIENCED DIFFERENT, BUT FUNDAMENTALLY
COMPARABLE, FEDERAL REGULATION OF CIVILIAN LIBERTY AND PROPERTY IN
PROPORTION TO THE INCREASING DEMANDS OF MODERN WARFARE.  FN9 

THE DEMANDS FOR WAR EQUIPMENT AND SUPPLIES WERE SO GREAT IN VOLUME,
WERE FOR SUCH NEW TYPES OF PRODUCTS, WERE SUBJECT TO SO MANY CHANGES IN
SPECIFICATIONS AND WERE SUBJECT TO SUCH PRESSING DEMANDS FOR DELIVERY
THAT ACCURATE ADVANCE ESTIMATES OF COST WERE OUT OF THE QUESTION. 
LAYING ASIDE AS UNDESIRABLE THE COMPLETE GOVERNMENTAL OWNERSHIP AND
OPERATION OF THE PRODUCTION OF WAR GOODS OF ALL KINDS, MANY ALTERNATIVE
SOLUTIONS WERE ATTEMPTED.  OFTEN THESE CALLED FOR CAPITAL EXPENDITURES
BY THE GOVERNMENT IN BUILDING NEW PLANT FACILITIES.  ADHERING, HOWEVER,
TO THE POLICY OF PRIVATE OPERATION OF THESE FACILITIES, CONGRESS AND
THE ADMINISTRATION SOUGHT TO PROMOTE A POLICY OF WIDE DISTRIBUTION OF
PRIME CONTRACTS AND SUBCONTRACTS, EVEN TO COMPARATIVELY HIGH COST
MARGINAL PRODUCERS OF UNFAMILIAR PRODUCTS.  CONGRESS SOUGHT TO DO
EVERYTHING POSSIBLE TO RETAIN AND ENCOURAGE INDIVIDUAL INITIATIVE IN
THE WORLD-WIDE RACE FOR THE LARGEST AND QUICKEST PRODUCTION OF THE BEST
EQUIPMENT AND SUPPLIES.  IT CLUNG TO ITS FAITH IN PRIVATE ENTERPRISE. 
THE PROBLEM WAS TO FIND A FAIR MEANS OF COMPENSATION FOR THE SERVICES
RENDERED AND THE GOODS PURCHASED.  CONTRACTS WERE AWARDED BY
NEGOTIATION WHEREVER COMPETITIVE BIDDING NO LONGER WAS PRACTICABLE. 
CONTRACTS WERE LET AT COST-PLUS-A-FIXED-FEE.  ESCALATOR CLAUSES WERE
INSERTED.  PRICE CEILINGS WERE ESTABLISHED.  A FLAT PERCENTAGE LIMIT ON
THE PROFITS IN CERTAIN LINES OF PRODUCTION WAS TRIED.  EXCESS PROFITS
TAXES WERE IMPOSED.  APPEALS WERE MADE FOR VOLUNTARY REFUNDS OF
EXCESSIVE PROFITS.  HOWEVER, EXPERIENCE WITH THESE ALTERNATIVES
CONVINCED THE GOVERNMENT THAT CONTRACTS AT FIXED INITIAL PRICES STILL
PROVIDED THE BEST INCENTIVE TO PRODUCTION.  FN10    ON FEBRUARY 16,
1942, THIS COURT IN UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S.
289, POINTED TO THE POSSIBILITY OF LEGISLATIVE RELIEF.  IT SAID (P.
309): 

"THE PROBLEM OF WAR PROFITS IS NOT NEW.  IN THIS COUNTRY, EVERY WAR
WE HAVE ENGAGED IN HAS PROVIDED OPPORTUNITIES FOR PROFITEERING AND THEY
HAVE BEEN TOO OFTEN SCANDALOUSLY SEIZED.  SEE HEARINGS BEFORE THE HOUSE
COMMITTEE ON MILITARY AFFAIRS ON H.R. 3 AND H.R. 5293, 74TH CONG., 1ST
SESS., 590-598.  TO MEET THIS RECURRENT EVIL, CONGRESS HAS AT TIMES
TAKEN VARIOUS MEASURES.  IT HAS AUTHORIZED PRICE FIXING.  IT HAS PLACED
A FIXED LIMIT ON PROFITS, OR HAS RECAPTURED HIGH PROFITS THROUGH
TAXATION.  IT HAS EXPRESSLY RESERVED FOR THE GOVERNMENT THE RIGHT TO
CANCEL CONTRACTS AFTER THEY HAVE BEEN MADE.  PURSUANT TO CONGRESSIONAL
AUTHORITY, THE GOVERNMENT HAS REQUISITIONED EXISTING PRODUCTION
FACILITIES OR ITSELF BUILT AND OPERATED NEW ONES TO PROVIDE NEEDED WAR
MATERIALS.  IT MAY BE THAT ONE OR SOME OR ALL OF THESE MEASURES SHOULD
BE UTILIZED MORE COMPREHENSIVELY, OR THAT STILL OTHER MEASURES MUST BE
DEVISED.  BUT IF THE EXECUTIVE IS IN NEED OF ADDITIONAL LAWS BY WHICH
TO PROTECT THE NATION AGAINST WAR PROFITEERING, THE CONSTITUTION HAS
GIVEN TO CONGRESS, NOT TO THIS COURT, THE POWER TO MAKE THEM." 

FINALLY THE COMPULSORY RENEGOTIATION OF CONTRACTS WAS AUTHORIZED. 
THE PROCEDURE OUTLINED IN THE ORIGINAL RENEGOTIATION ACT, APRIL 28,
1942, WAS RAPIDLY PERFECTED.  AS IT DEVELOPED IT REQUIRED ADVANCE
CONSENTS TO SUCH RENEGOTIATION TO BE WRITTEN INTO THE RESPECTIVE
CONTRACTS AND SUBCONTRACTS FOR WAR GOODS PRIOR TO THEIR AWARD AND
FINALLY IT MADE EXPRESS PROVISION FOR A REDETERMINATION OF THE
EXCESSIVE PROFITS, IN A PROCEEDING DE NOVO BEFORE THE TAX COURT,
WHEREVER A WAR GOODS CONTRACTOR OR SUBCONTRACTOR WAS AGGRIEVED BY THE
ADMINISTRATIVE ORDER.  THROUGHOUT THESE DEVELOPMENTS EXTENDED
CONGRESSIONAL AND PUBLIC CONSIDERATION WAS GIVEN TO THE ISSUES
PRESENTED.  FN11 

THE PLAN PROVED ITSELF READILY ADAPTABLE TO THE NEEDS OF THE TIME. 
IT CALLED FOR INITIAL CONTRACT ESTIMATES BASED UPON THE BEST AVAILABLE
INFORMATION AT THE TIME OF ENTERING INTO THE CONTRACTS.  PRODUCTION
PROCEEDED AT ONCE ON THE BASIS OF THOSE ESTIMATES.  MANY FACTORS WERE
INCAPABLE OF EXACT ADVANCE DETERMINATION.  THE FINAL NET COMPENSATION,
HOWEVER, RESULTED FROM A RENEGOTIATION MADE AFTER BOTH PARTIES HAD HAD
THE BENEFIT OF ACTUAL EXPERIENCE UNDER THE CONTRACT.  THIS
DETERMINATION OF THE ALLOWABLE PROFIT WAS GUIDED BY MANY RELEVANT
FACTORS.  A LIST OF COMMONLY RELEVANT FACTORS WAS PRESENTED IN AN EARLY
ADMINISTRATIVE DIRECTIVE.  LATER SUCH A LIST WAS ENACTED INTO THE
STATUTE.  EACH ADMINISTRATIVE DETERMINATION WAS MADE SUBJECT TO A
REDETERMINATION IN A PROCEEDING DE NOVO IN THE TAX COURT PROVIDED A
TIMELY PETITION FOR IT WAS FILED BY THE AGGRIEVED CONTRACTOR OR
SUBCONTRACTOR.  THE ACT ALWAYS HAS BEEN LIMITED IN DURATION TO A PERIOD
DURING AND SHORTLY FOLLOWING THE WAR.  IN MOST INSTANCES THE ACT HAS
RESULTED IN A DISPOSITION OF CASES BY AGREEMENTS REACHED BETWEEN THE
PARTIES.  FN12  THE CONTROVERSIES WHICH HAVE SURVIVED TO THIS DAY ARE,
IN LARGE MEASURE, NOT THOSE DEALING WITH THE CONSTITUTIONALITY OF THE
GENERAL EFFECT OF THE PLAN OR EVEN WITH THE FINALITY OF REDETERMINATION
UNDER THE PRESCRIBED ADMINISTRATIVE PROCEDURE, BUT ARE THOSE ARISING
OUT OF AN ALLEGED ABUSE OF DISCRETION IN ITS ADMINISTRATION. 

          THE RENEGOTIATION ACT. 

WHILE THERE HAVE BEEN SIX LEGISLATIVE STEPS  FN13  IN THE DEVELOPMENT
OF THE RENEGOTIATION ACT, THE PORTIONS OF IT THAT ARE ESPECIALLY
MATERIAL HERE CONSIST OF CERTAIN LANGUAGE IN THE SO-CALLED ORIGINAL
RENEGOTIATION ACT CONTAINED IN SEC. 403 OF THE SIXTH SUPPLEMENTAL
DEFENSE APPROPRIATIONS ACT, APPROVED APRIL 28, 1942; FN14  IN THE
AMENDMENTS MADE BY THE REVENUE ACT OF 1942, OCTOBER 21, 1942; FN15  AND
ITS FURTHER AMENDMENT AND SUBSTANTIAL EXPANSION BY SEC. 701(B) OF THE
REVENUE ACT OF 1943, FEBRUARY 25, 1944.  FN16  IN THAT FORM IT IS
SOMETIMES CALLED THE SECOND RENEGOTIATION ACT, BUT THE ENTIRE SEC. 403,
BOTH IN ITS ORIGINAL AND AMENDED FORMS MAY BE PROPERLY CITED AS THE
"RENEGOTIATION ACT."  FN17  IN THE PROCEEDINGS LEADING UP TO THE
ENACTMENT OF THE ORIGINAL RENEGOTIATION ACT, AN ALTERNATIVE IN THE FORM
OF A RIGID LIMITATION OF PROFITS WAS REJECTED IN FAVOR OF THE MORE
FLEXIBLE DEFINITION EMBODIED IN THE TERM "EXCESSIVE PROFITS."  FN18 THE
WAR DEPARTMENT DIRECTIVE OF AUGUST 10, 1942, ENTITLED "PRINCIPLES,
POLICY AND PROCEDURE TO BE FOLLOWED IN RENEGOTIATION" PROMPTLY STATED
THE FACTORS TO BE STRESSED IN DETERMINING EXCESSIVE PROFITS.  THIS
DIRECTIVE WAS INTRODUCED IN THE HEARINGS HELD BY THE FINANCE COMMITTEE
OF THE SENATE IN SEPTEMBER  FN19  AND THUS WAS BEFORE THE SENATE AT THE
TIME OF THE PASSAGE OF THE ABOVE-MENTIONED REVENUE ACT OF 1942, OCTOBER
21, 1942, WHICH MADE IMPORTANT AMENDMENTS IN THE RENEGOTIATION ACT. 

THE "JOINT STATEMENT BY THE WAR, NAVY, AND TREASURY DEPARTMENTS AND
THE MARITIME COMMISSION - PURPOSES, PRINCIPLES, POLICIES, AND
INTERPRETATIONS" DEALING WITH THE RENEGOTIATION ACT WAS ISSUED MARCH
31, 1943.  THIS WAS CONSIDERED AT THE HEARINGS BEFORE THE HOUSE
COMMITTEE ON NAVAL AFFAIRS, 78TH CONG., 1ST SESS., VOL. 2, PP. 469, ET
SEQ., 1025-1039, ESPECIALLY 1028-1029(1943).  FINALLY THE ABOVE
MENTIONED REVENUE ACT OF 1943, 58 STAT. 21, ON FEBRUARY 25, 1944,
LARGELY INCORPORATED THESE VIEWS IN SEC. 403(A)(4)(A),  FN20 THUS
INDICATING CONGRESSIONAL APPROVAL OF THIS ADMINISTRATIVE PRACTICE AND
FURTHER ASSURING CONTINUITY OF IT DURING THE BALANCE OF THE LIFE OF THE
ACT. 

                   DELEGATION OF AUTHORITY UNDER THE

                          RENEGOTIATION ACT. 

THE PETITIONERS CONTEND THAT THE RENEGOTIATION ACT UNCONSTITUTIONALLY
ATTEMPTED TO DELEGATE LEGISLATIVE POWER TO ADMINISTRATIVE OFFICIALS. 
THE UNITED STATES DOES NOT CONTEST THE RIGHT OF THE COURTS TO DECIDE
THE ISSUES AS TO THE VALIDITY OF THE ACT ON ITS FACE IN THE PRESENT
CASES, EACH OF WHICH WAS INSTITUTED AFTER THE PETITIONERS' RESPECTIVE
RIGHTS TO A TAX COURT REDETERMINATION HAD BEEN FORFEITED.  WE FIND NO
REASON FOR NOT REACHING HERE THE CONSTITUTIONALITY OF THE ACT.  CF.
AIRCRAFT & DIESEL CORP. V. HIRSCH, 331 U.S. 752; WADE V. STIMSON, 331
U.S. 793; MACAULEY V. WATERMAN S.S. CORP., 327 U.S. 540; YAKUS V.
UNITED STATES, 321 U.S. 414. 

THE CONSTITUTIONAL ARGUMENT IS BASED UPON THE CLAIM THAT THE
DELEGATION OF AUTHORITY CONTAINED IN THE ACT CARRIED WITH IT TOO SLIGHT
A DEFINITION OF LEGISLATIVE POLICY AND STANDARDS.  ACCORDINGLY, IT IS
CONTENDED THAT THE RESULTING DETERMINATION OF EXCESSIVE PROFITS WHICH
WERE CLAIMED BY THE UNITED STATES AMOUNTED TO AN UNCONSTITUTIONAL
EXERCISE OF LEGISLATIVE POWER BY AN ADMINISTRATIVE OFFICIAL INSTEAD OF
A MERE EXERCISE OF ADMINISTRATIVE DISCRETION UNDER VALID LEGISLATIVE
AUTHORITY.  WE HOLD THAT THE AUTHORIZATION WAS CONSTITUTIONAL. 
CERTAINLY AS SPELLED OUT IN SEC. 403(A)(4)(A)  FN21  OF THE SECOND
RENEGOTIATION ACT WITH RESPECT TO FISCAL YEARS ENDING AFTER JUNE 30,
1943, THERE CAN BE NO OBJECTION ON THIS GROUND.  THIS QUESTION,
THEREFORE, RELATES TO THE DELEGATION OF AUTHORITY AS MADE BY THE ACT
BEFORE THE EFFECTIVE DATE OF THE SECOND RENEGOTIATION ACT.  THE
ARGUMENT ON THIS QUESTION IS LIMITED TO THE LICHTER AND ALEXANDER
CASES, INASMUCH AS THE EXCESSIVE PROFITS DETERMINED TO EXIST IN THE
POWNALL CASE WERE SO FOUND BY THE WAR CONTRACTS PRICE ADJUSTMENT BOARD
UNDER THE SECOND RENEGOTIATION ACT. 

                     1.  THE STATUTORY LANGUAGE. 

THE ORIGINAL RENEGOTIATION ACT,  FN22  APPROVED APRIL 28, 1942,
PROVIDED IN SEC. 403(B), (C), (D) AND (E) FOR THE RENEGOTIATION OF ALL
CONTRACTS AND SUBCONTRACTS THEREAFTER MADE AND ALSO OF ALL CONTRACTS
AND SUBCONTRACTS THERETOFORE MADE BY THE WAR DEPARTMENT, THE NAVY
DEPARTMENT OR THE MARITIME COMMISSION, WHETHER OR NOT SUCH CONTRACTS OR
SUBCONTRACTS CONTAINED A RENEGOTIATION OR RECAPTURE CLAUSE, PROVIDED
THE FINAL PAYMENT PURSUANT THERETO HAD NOT BEEN MADE PRIOR TO APRIL 28,
1942.  THE RENEGOTIATION WAS TO BE DONE BY THE SECRETARY OF THE
DEPARTMENT CONCERNED.  FOR THIS PURPOSE THE CHAIRMAN OF THE MARITIME
COMMISSION WAS INCLUDED IN THE TERM "SECRETARY."  THE SERVICES OF THE
BUREAU OF INTERNAL REVENUE WERE MADE AVAILABLE UPON THE REQUEST OF EACH
SECRETARY, SUBJECT TO THE CONSENT OF THE SECRETARY OF THE TREASURY, FOR
THE PURPOSES OF MAKING EXAMINATIONS AND DETERMINATIONS WITH RESPECT TO
PROFITS UNDER THE SECTION.  THE SECRETARY OF EACH DEPARTMENT WAS
AUTHORIZED AND DIRECTED, WHENEVER IN HIS OPINION EXCESSIVE PROFITS HAD
BEEN REALIZED OR WERE LIKELY TO BE REALIZED FROM ANY CONTRACT WITH SUCH
DEPARTMENT OR FROM ANY SUBCONTRACT THEREUNDER, TO REQUIRE THE
CONTRACTOR OR SUBCONTRACTOR TO RENEGOTIATE THE CONTRACT PRICE.  IN CASE
ANY AMOUNT OF THE CONTRACT PRICE WAS FOUND AS A RESULT OF SUCH
RENEGOTIATION TO REPRESENT "EXCESSIVE PROFITS" WHICH HAD BEEN PAID TO
THE CONTRACTOR OR SUBCONTRACTOR, THE SECRETARY WAS AUTHORIZED TO
RECOVER THEM. 

THERE WAS NO EXPRESS DEFINITION OF THE TERM "EXCESSIVE PROFITS" IN
THE ORIGINAL RENEGOTIATION ACT.  HOWEVER, IN ITS SEC. 403(B),  FN23
THERE WAS A RELEVANT STATEMENT IN CONNECTION WITH THE RENEGOTIATION
CLAUSES REQUIRED TO BE INSERTED IN FUTURE CONTRACTS AND SUBCONTRACTS
FOR AN AMOUNT IN EXCESS OF $100,000 EACH.  THE SECRETARY WAS REQUIRED
TO INSERT IN SUCH CONTRACTS, THEREAFTER MADE BY HIS DEPARTMENT, "A
PROVISION FOR THE RENEGOTIATION OF THE CONTRACT PRICE AT A PERIOD OR
PERIODS WHEN, IN THE JUDGMENT OF THE SECRETARY, THE PROFITS CAN BE
DETERMINED WITH REASONABLE CERTAINTY; ...  "  CONTRACTORS WERE ALSO TO
BE REQUIRED TO INSERT A LIKE PROVISION IN THEIR SUBCONTRACTS.  THIS
STATEMENT INDICATED A RELATIONSHIP BETWEEN CURRENT "EXCESSIVE PROFITS"
AND THOSE WHICH LATER MIGHT BE DETERMINED WITH "REASONABLE CERTAINTY." 

ALSO, IN SEC. 403(D)  FN24  IT WAS PROVIDED THAT, IN RENEGOTIATING A
CONTRACT PRICE OR DETERMINING EXCESSIVE PROFITS, THE SECRETARIES OF THE
RESPECTIVE DEPARTMENTS SHOULD NOT MAKE ALLOWANCES "FOR ANY SALARIES,
BONUSES, OR OTHER COMPENSATION PAID BY A CONTRACTOR TO ITS OFFICERS OR
EMPLOYEES IN EXCESS OF A REASONABLE AMOUNT,  ...  " NOR "FOR ANY
EXCESSIVE RESERVES SET UP BY THE CONTRACTOR OR FOR ANY COSTS INCURRED
BY THE CONTRACTOR WHICH ARE EXCESSIVE AND UNREASONABLE." 

THE AMENDMENTS MADE TO THIS SECTION BY THE REVENUE ACT OF 1942,  FN25
APPROVED OCTOBER 21, 1942, WERE MADE EFFECTIVE AS OF APRIL 28, 1942. 
AT THE TIME THEY WERE APPROVED, CONGRESS HAD KNOWLEDGE OF THE WAR
DEPARTMENT DIRECTIVE OF AUGUST 10, 1942,  FN26  WHICH HAD BEEN PUT INTO
EFFECT STRESSING CERTAIN FACTORS WHICH THE SECRETARY EMPHASIZED IN
DETERMINING EXCESSIVE PROFITS.  WHILE CONGRESS THEN MADE SEVERAL
AMENDMENTS TO SEC. 403, THOSE AMENDMENTS DID NOT ALTER THE EFFECT OF
SUCH DIRECTIVE IN THIS PARTICULAR.  AMONG THE AMENDMENTS THAT WERE THEN
ADDED THERE WAS THE FOLLOWING PURPORTED DEFINITION OF "EXCESSIVE
PROFITS":  "THE TERM 'EXCESSIVE PROFITS' MEANS ANY AMOUNT OF A CONTRACT
OR SUBCONTRACT PRICE WHICH IS FOUND AS A RESULT OF RENEGOTIATION TO
REPRESENT EXCESSIVE PROFITS."  IN THE LIGHT OF THE EXISTING
ADMINISTRATIVE PRACTICES THIS AT LEAST EXPRESSED A CONGRESSIONAL
SATISFACTION WITH THE EXISTING SPECIFICITY OF THE ACT.  THE AMENDMENT
MADE TO SEC. 403(C)(3)  FN27  REQUIRED THE RECOGNITION OF EXCLUSIONS
AND DEDUCTIONS OF THE CHARACTER AFFORDED BY CERTAIN PROVISIONS OF THE
INTERNAL REVENUE CODE.  THE AMENDMENT TO SEC. 403(C)(5) FN28  PROVIDED
ALSO THAT THE SECRETARIES, BY JOINT REGULATION, MIGHT PRESCRIBE THE
FORM AND DETAIL IN WHICH CERTAIN DATA MIGHT BE FILED BY CONTRACTORS AND
SUBCONTRACTORS BEARING UPON THEIR PROFITS UNDER THEIR CONTRACTS.  THIS
MATERIAL CONCERNED "STATEMENTS OF ACTUAL COSTS OF PRODUCTION" AND
"OTHER FINANCIAL STATEMENTS FOR ANY PRIOR FISCAL YEAR OR YEARS."  UNDER
SOME CIRCUMSTANCES, IN THE ABSENCE OF A NOTICE FROM THE SECRETARY AND
IN THE ABSENCE OF THE COMMENCEMENT OF RENEGOTIATIONS, IT WAS PROVIDED
THAT "THE CONTRACTOR OR SUBCONTRACTOR SHALL NOT THEREAFTER BE REQUIRED
TO RENEGOTIATE TO ELIMINATE EXCESSIVE PROFITS REALIZED FROM ANY SUCH
CONTRACT OR SUBCONTRACT DURING SUCH FISCAL YEAR OR YEARS AND ANY
LIABILITIES OF THE CONTRACTOR OR SUBCONTRACTOR FOR EXCESSIVE PROFITS
REALIZED DURING SUCH PERIOD SHALL BE THEREBY DISCHARGED."  A NEW
SUBSECTION (I)  FN29  WAS ADDED CONTAINING NEW EXCEPTIONS AND
EXEMPTIONS FROM THE ACT.  THE "JOINT STATEMENT BY THE WAR, NAVY, AND
TREASURY DEPARTMENT AND THE MARITIME COMMISSION - PURPOSES, PRINCIPLES,
POLICIES, AND INTERPRETATIONS" ISSUED MARCH 31, 1943,  FN30  SIMILARLY
CONTRIBUTED DEFINITENESS TO THE CURRENT ADMINISTRATIVE PRACTICE. 

           2.  THE VALIDITY OF THE DELEGATION OF AUTHORITY. 

IT IS IN THE LIGHT OF THESE STATUTORY PROVISIONS AND ADMINISTRATIVE
PRACTICES THAT WE MUST DETERMINE WHETHER THE RENEGOTIATION ACT MADE AN
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER.  ON THE BASIS OF (A)
THE NATURE OF THE PARTICULAR CONSTITUTIONAL POWERS BEING EMPLOYED, (B)
THE CURRENT ADMINISTRATIVE PRACTICES LATER INCORPORATED INTO THE ACT
AND (C) THE ADEQUACY OF THE STATUTORY TERM "EXCESSIVE PROFITS" AS USED
IN THIS CONTEXT, WE HOLD THAT THE AUTHORITY GRANTED WAS A LAWFUL
DELEGATION OF ADMINISTRATIVE AUTHORITY AND NOT AN UNCONSTITUTIONAL
DELEGATION OF LEGISLATIVE POWER. 

(A)  A CONSTITUTIONAL POWER IMPLIES A POWER OF DELEGATION OF
AUTHORITY UNDER IT SUFFICIENT TO EFFECT ITS PURPOSES.  - THIS POWER IS
ESPECIALLY SIGNIFICANT IN CONNECTION WITH CONSTITUTIONAL WAR POWERS
UNDER WHICH THE EXERCISE OF BROAD DISCRETION AS TO METHODS TO BE
EMPLOYED MAY BE ESSENTIAL TO AN EFFECTIVE USE OF ITS WAR POWERS BY
CONGRESS.  THE DEGREE TO WHICH CONGRESS MUST SPECIFY ITS POLICIES AND
STANDARDS IN ORDER THAT THE ADMINISTRATIVE AUTHORITY GRANTED MAY NOT BE
AN UNCONSTITUTIONAL DELEGATION OF ITS OWN LEGISLATIVE POWER IS NOT
CAPABLE OF PRECISE DEFINITION.  IN PEACE OR IN WAR IT IS ESSENTIAL THAT
THE CONSTITUTION BE SCRUPULOUSLY OBEYED,  FN31  AND PARTICULARLY THAT
THE RESPECTIVE BRANCHES OF THE GOVERNMENT KEEP WITHIN THE POWERS
ASSIGNED TO EACH BY THE CONSTITUTION.  ON THE OTHER HAND, IT IS OF THE
HIGHEST IMPORTANCE THAT THE FUNDAMENTAL PURPOSES OF THE CONSTITUTION BE
KEPT IN MIND AND GIVEN EFFECT IN ORDER THAT, THROUGH THE CONSTITUTION,
THE PEOPLE OF THE UNITED STATES MAY IN TIME OF WAR AS IN PEACE BRING TO
THE SUPPORT OF THOSE PURPOSES THE FULL FORCE OF THEIR UNITED ACTION. 
IN TIME OF CRISIS NOTHING COULD BE MORE TRAGIC AND LESS EXPRESSIVE OF
THE INTENT OF THE PEOPLE THAN SO TO CONSTRUE THEIR CONSTITUTION THAT BY
ITS OWN TERMS IT WOULD SUBSTANTIALLY HINDER RATHER THAN HELP THEM IN
DEFENDING THEIR NATIONAL SAFETY. 

IN AN ADDRESS BY HONORABLE CHARLES E. HUGHES, OF NEW YORK, ON "WAR
POWERS UNDER THE CONSTITUTION," SEPTEMBER 5, 1917, 42 A.B.A. REP. 232,
238-239, 247-248, HE SAID: 

"THE POWER TO WAGE WAR IS THE POWER TO WAGE WAR SUCCESSFULLY.  THE
FRAMERS OF THE CONSTITUTION WERE UNDER NO ILLUSIONS AS TO WAR.  THEY
HAD EMERGED FROM A LONG STRUGGLE WHICH HAD TAUGHT THEM THE WEAKNESS OF
A MERE CONFEDERATION, AND THEY HAD NO HOPE THAT THEY COULD HOLD WHAT
THEY HAD WON SAVE AS THEY ESTABLISHED A UNION WHICH COULD FIGHT WITH
THE STRENGTH OF ONE PEOPLE UNDER ONE GOVERNMENT ENTRUSTED WITH THE
COMMON DEFENCE.  IN EQUIPPING THE NATIONAL GOVERNMENT WITH THE NEEDED
AUTHORITY IN WAR, THEY TOLERATED NO LIMITATIONS INCONSISTENT WITH THAT
OBJECT, AS THEY REALIZED THAT THE VERY EXISTENCE OF THE NATION MIGHT BE
AT STAKE AND THAT EVERY RESOURCE OF THE PEOPLE MUST BE AT COMMAND. 
... 

     .         .         .  .         . 

"THE EXTRAORDINARY CIRCUMSTANCES OF WAR MAY BRING PARTICULAR
(BUSINESSES) AND ENTERPRISES CLEARLY INTO THE CATEGORY OF THOSE WHICH
ARE AFFECTED WITH A PUBLIC INTEREST AND WHICH DEMAND IMMEDIATE AND
THOROUGHGOING PUBLIC REGULATION.  THE PRODUCTION AND DISTRIBUTION OF
FOODSTUFFS, ARTICLES OF PRIME NECESSITY, THOSE WHICH HAVE DIRECT
RELATION TO MILITARY EFFICIENCY, THOSE WHICH ARE ABSOLUTELY REQUIRED
FOR THE SUPPORT OF THE PEOPLE DURING THE STRESS OF CONFLICT, ARE
PLAINLY OF THIS SORT.  REASONABLE REGULATIONS TO SAFEGUARD THE
RESOURCES UPON WHICH WE DEPEND FOR MILITARY SUCCESS MUST BE REGARDED AS
BEING WITHIN THE POWERS CONFIDED TO CONGRESS TO ENABLE IT TO PROSECUTE
A SUCCESSFUL WAR. 

"IN THE WORDS OF THE SUPREME COURT:  'IT IS ALSO SETTLED BEYOND
DISPUTE THAT THE CONSTITUTION IS NOT SELF-DESTRUCTIVE.  IN OTHER WORDS,
THAT THE POWER WHICH IT CONFERS ON THE ONE HAND IT DOES NOT IMMEDIATELY
TAKE AWAY ON THE OTHER.  ...  '  FN32  THIS WAS SAID IN RELATION TO THE
TAXING POWER.  HAVING BEEN GRANTED IN EXPRESS TERMS, THE COURT HELD IT
HAD NOT BEEN TAKEN AWAY BY THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  AS THE SUPREME COURT PUT IT IN ANOTHER CASE:  'THE
CONSTITUTION DOES NOT CONFLICT WITH ITSELF BY CONFERRING UPON THE ONE
HAND A TAXING POWER AND TAKING THE SAME POWER AWAY ON THE OTHER BY THE
LIMITATIONS OF THE DUE PROCESS CLAUSE.'  FN33 

"SIMILARLY, IT MAY BE SAID THAT THE POWER HAS BEEN EXPRESSLY GIVEN TO
CONGRESS TO PROSECUTE WAR, AND TO PASS ALL LAWS WHICH SHALL BE
NECESSARY AND PROPER FOR CARRYING THAT POWER INTO EXECUTION.  THAT
POWER EXPLICITLY CONFERRED AND ABSOLUTELY ESSENTIAL TO THE SAFETY OF
THE NATION IS NOT DESTROYED OR IMPAIRED BY ANY LATER PROVISION OF THE
CONSTITUTION OR BY ANY ONE OF THE AMENDMENTS.  THESE MAY ALL BE
CONSTRUED SO AS TO AVOID MAKING THE CONSTITUTION SELF-DESTRUCTIVE, SO
AS TO PRESERVE THE RIGHTS OF THE CITIZEN FROM UNWARRANTABLE ATTACK,
WHILE ASSURING BEYOND ALL HAZARD THE COMMON DEFENCE AND THE PERPETUITY
OF OUR LIBERTIES.  THESE REST UPON THE PRESERVATION OF THE NATION. 

"IT HAS BEEN SAID THAT THE CONSTITUTION MARCHES.  THAT IS, THERE ARE
CONSTANTLY NEW APPLICATIONS OF UNCHANGED POWERS, AND IT IS ASCERTAINED
THAT IN NOVEL AND COMPLEX SITUATIONS, THE OLD GRANTS CONTAIN, IN THEIR
GENERAL WORDS AND TRUE SIGNIFICANCE, NEEDED AND ADEQUATE AUTHORITY. 
SO, ALSO, WE HAVE A FIGHTING CONSTITUTION.  WE CANNOT AT THIS TIME FAIL
TO APPRECIATE THE WISDOM OF THE FATHERS, AS UNDER THIS CHARTER, ONE
HUNDRED AND THIRTY YEARS OLD - THE CONSTITUTION OF WASHINGTON - THE
PEOPLE OF THE UNITED STATES FIGHT WITH THE POWER OF UNITY,  - AS WE
FIGHT FOR THE FREEDOM OF OUR CHILDREN AND THAT HEREAFTER THE SWORD OF
AUTOCRATS MAY NEVER THREATEN THE WORLD." 

THE WAR POWERS OF CONGRESS AND THE PRESIDENT ARE ONLY THOSE WHICH ARE
TO BE DERIVED FROM THE CONSTITUTION BUT, IN THE LIGHT OF THE LANGUAGE
JUST QUOTED, THE PRIMARY IMPLICATION OF A WAR POWER IS THAT IT SHALL BE
AN EFFECTIVE POWER TO WAGE THE WAR SUCCESSFULLY.  THUS, WHILE THE
CONSTITUTIONAL STRUCTURE AND CONTROLS OF OUR GOVERNMENT ARE OUR GUIDES
EQUALLY IN WAR AND IN PEACE, THEY MUST BE READ WITH THE REALISTIC
PURPOSES OF THE ENTIRE INSTRUMENT FULLY IN MIND.  FN34 

IN 1942, IN THE EARLY STAGES OF TOTAL GLOBAL WARFARE, THE EXERCISE OF
A WAR POWER SUCH AS THE POWER "TO RAISE AND SUPPORT ARMIES,  ...  " AND
"TO PROVIDE AND MAINTAIN A NAVY; ...  ," CALLED FOR THE PRODUCTION BY
US OF WAR GOODS IN UNPRECEDENTED VOLUME WITH THE UTMOST SPEED, COMBINED
WITH FLEXIBILITY OF CONTROL OVER THE PRODUCT AND WITH A HIGH DEGREE OF
INITIATIVE ON THE PART OF THE PRODUCERS.  FACED WITH THE NEED TO
EXERCISE THAT POWER, THE QUESTION WAS WHETHER IT WAS BEYOND THE
CONSTITUTIONAL POWER OF CONGRESS TO DELEGATE TO THE HIGH OFFICIALS
NAMED THEREIN THE DISCRETION CONTAINED IN THE ORIGINAL RENEGOTIATION
ACT OF APRIL 28, 1942, AND THE AMENDMENTS OF OCTOBER 21, 1942.  WE
BELIEVE THAT THE ADMINISTRATIVE AUTHORITY THERE GRANTED WAS WELL WITHIN
THE CONSTITUTIONAL WAR POWERS THEN BEING PUT TO THEIR PREDESTINED
USES. 

(B)  THE ADMINISTRATIVE PRACTICES DEVELOPED UNDER THE RENEGOTIATION
ACT DEMONSTRATED THE DEFINITIVE ADEQUACY OF THE TERM "EXCESSIVE
PROFITS" AS USED IN THE ACT.  - THE ADMINISTRATIVE PRACTICES CURRENTLY
DEVELOPED UNDER THE ACT IN INTERPRETING THE TERM "EXCESSIVE PROFITS"
APPEAR TO HAVE COME WELL WITHIN THE SCOPE OF THE CONGRESSIONAL POLICY. 
WE HAVE REFERRED ABOVE TO THE WAR DEPARTMENT DIRECTIVE OF AUGUST 10,
1942,  FN35  AND TO THE JOINT DEPARTMENTAL STATEMENT OF MARCH 31, 1943,
FN36  BOTH OF WHICH WERE PLACED BEFORE APPROPRIATE CONGRESSIONAL
COMMITTEES.  THESE CLEARLY STATED PRACTICES ARE EVIDENCE OF A CURRENT
CORRECT UNDERSTANDING OF THE CONGRESSIONAL INTENT.  THIS APPEARS FROM
THE FACT THAT THE CONGRESSIONAL ACTION OF OCTOBER 21, 1942, MADE
EFFECTIVE AS OF APRIL 28, 1942, WAS TAKEN IN THE LIGHT OF THE ABOVE
MENTIONED DIRECTIVE AND WITHOUT RESTRICTING ITS EFFECT.  FURTHERMORE,
THE CONGRESSIONAL ACTION TAKEN FEBRUARY 25, 1944, AND MADE EFFECTIVE
FOR THE FISCAL YEARS ENDING AFTER JUNE 30, 1943, SUBSTANTIALLY
INCORPORATED INTO THE STATUTE THE ADMINISTRATIVE PRACTICE SHOWN IN THE
JOINT DEPARTMENTAL STATEMENT OF MARCH 31, 1943.  IT THUS BECAME AN
EXPRESS CONGRESSIONAL DEFINITION OF THE FACTORS APPROPRIATE FOR
CONSIDERATION IN DETERMINING EXCESSIVE PROFITS, WHEREAS BEFORE IT WAS
AN ADMINISTRATIVE INTERPRETATION OF "EXCESSIVE PROFITS" TO THE SAME
EFFECT. 

(C)  THE STATUTORY TERM "EXCESSIVE PROFITS," IN ITS CONTEXT, WAS A
SUFFICIENT EXPRESSION OF LEGISLATIVE POLICY AND STANDARDS TO RENDER IT
CONSTITUTIONAL.  - THE FACT THAT THIS TERM LATER WAS FURTHER DEFINED
BOTH BY ADMINISTRATIVE ACTION AND BY STATUTORY AMENDMENT INDICATES THE
PROBABLE DESIRABILITY OF SUCH ADDED DEFINITION, BUT IT DOES NOT
DEMONSTRATE THAT SUCH FURTHER DEFINITION WAS A CONSTITUTIONAL NECESSITY
ESSENTIAL TO THE VALIDITY OF THE ORIGINAL EXERCISE BY CONGRESS OF ITS
WAR POWERS IN INITIATING A NEW SOLUTION OF AN UNPRECEDENTED PROBLEM. 
THE FACT THAT THE CONGRESSIONAL DEFINITION CONFIRMED THE ADMINISTRATIVE
PRACTICE WHICH ALREADY WAS IN EFFECT UNDER THE ORIGINAL STATUTORY
LANGUAGE TENDS TO SHOW THAT A STATUTORY DEFINITION WAS NOT NECESSARY IN
ORDER TO GIVE EFFECT TO THE CONGRESSIONAL INTENT. 

IN 1942 THE IMPOSITION OF EXCESS PROFITS TAXES WAS A PROCEDURE
ALREADY FAMILIAR TO CONGRESS, BOTH AS AN EMERGENCY PROCEDURE TO RAISE
FUNDS FOR EXTRAORDINARY WARTIME EXPENDITURES, AND AS ONE TO MEET THE
NEEDS OF PEACE.  THE RECAPTURE OF EXCESS INCOME AS APPLIED BY CONGRESS
TO THE RAILROADS HAD BEEN UPHELD BY THIS COURT IN 1924.  DAYTON-GOOSE
CREEK R. CO. V. UNITED STATES, 263 U.S. 456.  THE OPINIONS OF THIS
COURT IN YAKUS V. UNITED STATES, 321 U.S. 414; SCHECHTER POULTRY CORP.
V. UNITED STATES, 295 U.S. 495, 529-542; AND PANAMA REFINING CO. V.
RYAN, 293 U.S. 388, 413-433, ARE NOT IN CONFLICT WITH OUR PRESENT
POSITION. 

THE POLICY AND PURPOSE OF CONGRESS IN CHOOSING THE RENEGOTIATION OF
PROFITS AS AN ALTERNATIVE TO COST-PLUS CONTRACTS, TO FLAT PERCENTAGE
LIMITATIONS OF PROFITS, AND TO 100% EXCESS PROFITS TAXES WAS AN ATTEMPT
TO DETERMINE A FAIR RETURN ON WAR CONTRACTS, UNDER CONDITIONS WHERE
ACTUAL EXPERIENCE ALONE COULD DISCLOSE WHAT WAS FAIR AND WHEN THE
PRIMARY NATIONAL NEED WAS FOR THE IMMEDIATE PRODUCTION OF UNPRECEDENTED
QUANTITIES OF NEW PRODUCTS.  THE ACTION OF CONGRESS WAS AN EXPRESSION
OF ITS WELLCONSIDERED JUDGMENT AS TO THE DEGREE OF ADMINISTRATIVE
AUTHORITY WHICH IT WAS NECESSARY TO GRANT IN ORDER TO EFFECTUATE ITS
POLICY.  THIS ACTION OF CONGRESS CAME WITHIN THE SCOPE OF ITS
DISCRETION AS DESCRIBED BY CHIEF JUSTICE HUGHES IN PANAMA REFINING CO.
V. RYAN, SUPRA, AT P. 421: 

"UNDOUBTEDLY LEGISLATION MUST OFTEN BE ADAPTED TO COMPLEX CONDITIONS
INVOLVING A HOST OF DETAILS WITH WHICH THE NATIONAL LEGISLATURE CANNOT
DEAL DIRECTLY.  THE CONSTITUTION HAS NEVER BEEN REGARDED AS DENYING TO
THE CONGRESS THE NECESSARY RESOURCES OF FLEXIBILITY AND PRACTICALITY,
WHICH WILL ENABLE IT TO PERFORM ITS FUNCTION IN LAYING DOWN POLICIES
AND ESTABLISHING STANDARDS, WHILE LEAVING TO SELECTED INSTRUMENTALITIES
THE MAKING OF SUBORDINATE RULES WITHIN PRESCRIBED LIMITS AND THE
DETERMINATION OF FACTS TO WHICH THE POLICY AS DECLARED BY THE
LEGISLATURE IS TO APPLY.  WITHOUT CAPACITY TO GIVE AUTHORIZATIONS OF
THAT SORT WE SHOULD HAVE THE ANOMALY OF A LEGISLATIVE POWER WHICH IN
MANY CIRCUMSTANCES CALLING FOR ITS EXERTION WOULD BE BUT A FUTILITY." 

IT IS NOT NECESSARY THAT CONGRESS SUPPLY ADMINISTRATIVE OFFICIALS
WITH A SPECIFIC FORMULA FOR THEIR GUIDANCE IN A FIELD WHERE FLEXIBILITY
AND THE ADAPTATION OF THE CONGRESSIONAL POLICY TO INFINITELY VARIABLE
CONDITIONS CONSTITUTE THE ESSENCE OF THE PROGRAM.  "IF CONGRESS SHALL
LAY DOWN BY LEGISLATIVE ACT AN INTELLIGIBLE PRINCIPLE  ...  SUCH
LEGISLATIVE ACTION IS NOT A FORBIDDEN DELEGATION OF LEGISLATIVE
POWER."  HAMPTON CO. V. UNITED STATES, 276 U.S. 394, 409.  STANDARDS
PRESCRIBED BY CONGRESS ARE TO BE READ IN THE LIGHT OF THE CONDITIONS TO
WHICH THEY ARE TO BE APPLIED.  "THEY DERIVE MUCH MEANINGFUL CONTENT
FROM THE PURPOSE OF THE ACT, ITS FACTUAL BACKGROUND AND THE STATUTORY
CONTEXT IN WHICH THEY APPEAR."  AMERICAN POWER & LIGHT CO. V. S.E.C.,
329 U.S. 90, 104.  THE PURPOSE OF THE RENEGOTIATION ACT AND ITS FACTUAL
BACKGROUND ESTABLISH A SUFFICIENT MEANING FOR "EXCESSIVE PROFITS" AS
THOSE WORDS ARE USED IN PRACTICE.  FN37  THE WORD "EXCESSIVE" APPEARS
TWICE IN THE EIGHTH AMENDMENT TO THE CONSTITUTION:  "EXCESSIVE BAIL
SHALL NOT BE REQUIRED, NOR EXCESSIVE FINES IMPOSED,  ...  "  IN THE
ORIGINAL RENEGOTIATION ACT, SEC. 403(D), FN38  THERE WERE EXPRESSLY
DISALLOWED TO THE CONTRACTOR IN DETERMINING HIS PROFITS "COMPENSATION
PAID BY A CONTRACTOR TO ITS OFFICERS OR EMPLOYEES IN EXCESS OF A
REASONABLE AMOUNT,  ...  " AND "ANY COSTS INCURRED BY THE CONTRACTOR
WHICH ARE EXCESSIVE AND UNREASONABLE."  "EXCESSIVE PROFITS ARE THOSE IN
EXCESS OF REASONABLE PROFITS."  SPAULDING V. DOUGLAS AIRCRAFT CO., 154
F.2D 419, 423. 

THE FOLLOWING, SOMEWHAT COMPARABLE, LEGISLATIVE SPECIFICATIONS ARE
AMONG THOSE WHICH HAVE BEEN HELD TO STATE A SUFFICIENTLY DEFINITE
STANDARD FOR ADMINISTRATIVE ACTION: 

"JUST AND REASONABLE" RATES FOR SALES OF NATURAL GAS, FEDERAL POWER
COMM'N V. HOPE GAS CO., 320 U.S. 591, 600-601; "PUBLIC INTEREST,
CONVENIENCE, OR NECESSITY" IN ESTABLISHING RULES AND REGULATIONS UNDER
THE FEDERAL COMMUNICATIONS ACT, NATIONAL BROADCASTING CO. V. UNITED
STATES, 319 U.S. 190, 225-226; PRICES YIELDING A "FAIR RETURN" OR THE
"FAIR VALUE" OF PROPERTY, SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381,
397-398; "UNFAIR METHODS OF COMPETITION" DISTINCT FROM OFFENSES DEFINED
UNDER THE COMMON LAW, FEDERAL TRADE COMM'N V. KEPPEL & BRO., 291 U.S.
304, 311-312, 314; "JUST AND REASONABLE" RATES FOR THE SERVICES OF
COMMISSION MEN, TAGG BROS. & MOORHEAD V. UNITED STATES, 280 U.S. 420,
431; AND "FAIR AND REASONABLE" RENT FOR PREMISES, WITH FINAL
DETERMINATION IN THE COURTS, LEVY LEASING CO. V. SIEGEL, 258 U.S. 242,
243, 248-250. 

          3.  METHODS PRESCRIBED AND LIMITATIONS IMPOSED ON THE

                     ADMINISTRATION. 

THE METHODS PRESCRIBED AND THE LIMITATIONS IMPOSED BY CONGRESS UPON
THE CONTEMPLATED ADMINISTRATIVE ACTION ARE HELPFUL.  THE ACT IS
CONFINED TO THE DURATION OF THE WAR OR TO A SHORT TIME THEREAFTER. 
RENEGOTIATION, FROM THE BEGINNING, HAS BEEN CONFINED TO THE ELIMINATION
OF EXCESSIVE PROFITS FROM CONTRACTS AND SUBCONTRACTS WITH CERTAIN
GOVERNMENTAL DEPARTMENTS DIRECTLY RELATED TO THE CONDUCT OF THE WAR. 
BY SUBSEQUENT AMENDMENTS THE SCOPE OF THE ACT WAS LIMITED BY FURTHER
EXPRESS EXCEPTIONS AND EXEMPTIONS.  THE ADMINISTRATIVE OFFICIALS TO
WHOM AUTHORITY WAS GRANTED WERE CLEARLY SPECIFIED AND WERE ALL
OFFICIALS OF HIGH GOVERNMENTAL RESPONSIBILITY.  EACH WAS REQUIRED TO
ACT WHENEVER HE FOUND EXCESSIVE PROFITS EXISTED UNDER THE CONDITIONS
DEFINED.  THE PROVISIONS FOR A REDETERMINATION OF EXCESS PROFITS BY THE
TAX COURT DE NOVO ARE DISCUSSED LATER.  THEY LIKEWISE IMPOSED IMPORTANT
LIMITATIONS ON THE ALLOWABLE RECOVERIES. 

ACCORDINGLY, WE HOLD THAT THE DELEGATION OF AUTHORITY HERE IN ISSUE,
UNDER THE RENEGOTIATION ACT IN ITS SEVERAL FORMS, WAS A CONSTITUTIONAL
DEFINITION OF ADMINISTRATIVE AUTHORITY AND NOT AN UNCONSTITUTIONAL
DELEGATION OF LEGISLATIVE POWER. 

          THE RENEGOTIATION OF WAR CONTRACTS WAS NOT A TAKING

           OF PRIVATE PROPERTY FOR PUBLIC USE. 

THE RECOVERY BY THE GOVERNMENT OF EXCESSIVE PROFITS RECEIVED OR
RECEIVABLE UPON WAR CONTRACTS IS IN THE NATURE OF THE REGULATION OF
MAXIMUM PRICES UNDER WAR CONTRACTS OR THE COLLECTION OF EXCESS PROFITS
TAXES, RATHER THAN THE REQUISITIONING OR CONDEMNATION OF PRIVATE
PROPERTY FOR PUBLIC USE.  ONE OF THE PRIMARY PURPOSES OF THE
RENEGOTIATION PLAN FOR REDETERMINING THE ALLOWABLE PROFIT ON CONTRACTS
FOR THE PRODUCTION OF WAR GOODS BY PRIVATE PERSONS WAS THE AVOIDANCE OF
REQUISITIONING OR CONDEMNATION PROCEEDINGS LEADING TO GOVERNMENTAL
OWNERSHIP AND OPERATION OF THE PLANTS PRODUCING WAR MATERIALS.  A
REFUND TO THE GOVERNMENT OF EXCESSIVE EARNINGS OF RAILROAD CARRIERS
UNDER THE RECAPTURE PROVISIONS OF SEC. 15A OF THE TRANSPORTATION ACT OF
1920, 41 STAT. 488, HAS BEEN SUSTAINED BY THIS COURT.  DAYTON-GOOSE
CREEK R. CO. V. UNITED STATES, 263 U.S. 456.  THE COLLECTION OF
RENEGOTIATED EXCESSIVE PROFITS ON A WAR SUBCONTRACT ALSO IS NOT IN THE
NATURE OF A PENALTY AND IS NOT A DEPRIVATION OF A SUBCONTRACTOR OF HIS
PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH
AMENDMENT. 

          THE RENEGOTIATION ACT, INCLUDING ITS AMENDMENTS,

            HAS BEEN PROPERLY APPLIED TO CONTRACTS ENTERED

                 INTO BEFORE ITS AND THEIR RESPECTIVE

                           ENACTMENTS. 

THE EXCESSIVE PROFITS CLAIMED BY THE GOVERNMENT IN THESE CASES AROSE
OUT OF CONTRACTS BETWEEN THE RESPECTIVE PETITIONERS AND OTHER PRIVATE
PARTIES.  NONE AROSE OUT OF CONTRACTS MADE DIRECTLY WITH THE GOVERNMENT
ITSELF.  ALL THE CONTRACTS, HOWEVER, RELATED TO SUBJECT MATTER WITHIN
THE MEANING OF THE RENEGOTIATION ACT IN ITS RESPECTIVE STAGES.  THE
CONTRACTS ALL WERE OF THE TYPE WHICH CAME TO BE KNOWN, UNDER THE ACT,
AS SUBCONTRACTS.  ALL, EXCEPT FOUR IN THE LICHTER CASE, WERE ENTERED
INTO AFTER THE ENACTMENT OF THE ORIGINAL RENEGOTIATION ACT, APRIL 28,
1942, AND ON THOSE FOUR, THE FINAL PAYMENT HAD NOT BEEN MADE BY THAT
DATE.  WE THEREFORE DO NOT HAVE BEFORE US AN ISSUE AS TO THE RECOVERY
OF EXCESSIVE PROFITS ON ANY CONTRACT MADE DIRECTLY WITH THE GOVERNMENT
NOR ON ANY SUBCONTRACT UPON WHICH FINAL PAYMENT HAD BEEN MADE BEFORE
APRIL 28, 1942, ALTHOUGH RELATING TO WAR GOODS MADE OR SERVICES
PERFORMED AFTER THE DECLARATION OF WAR, DECEMBER 8, 1941.  CONGRESS
LIMITED THE RENEGOTIATION ACT TO FUTURE CONTRACTS AND TO CONTRACTS
ALREADY EXISTING BUT PURSUANT TO WHICH FINAL PAYMENTS HAD NOT BEEN MADE
PRIOR TO THE DATE OF ENACTMENT OF THE ORIGINAL ACT.  THESE INCLUDED
CONTRACTS MADE DIRECTLY WITH THE GOVERNMENT AND ALSO SUBCONTRACTS SUCH
AS THOSE HERE INVOLVED. 

WE UPHOLD THE RIGHT OF THE GOVERNMENT TO RECOVER EXCESSIVE PROFITS ON
EACH OF THE CONTRACTS BEFORE US.  THIS RIGHT EXISTS AS TO SUCH
EXCESSIVE PROFITS WHETHER THEY AROSE FROM CONTRACTS MADE BEFORE OR
AFTER THE PASSAGE OF THE ACT.  A CONTRACT IS EQUALLY A WAR CONTRACT IN
EITHER EVENT AND, IF UNCOMPLETED TO THE EXTENT THAT THE FINAL PAYMENT
HAS NOT YET BEEN MADE, THE RECOVERY OF EXCESSIVE PROFITS DERIVED FROM
IT MAY BE AUTHORIZED AS HAS BEEN DONE HERE. 

WHILE THE ORIGINAL RENEGOTIATION ACT MAY NOT HAVE EXPRESSLY DEFINED
SOME OF THE CONTRACTS BEFORE US AS SUBCONTRACTS, THE ACT OF OCTOBER 21,
1942, IN ITS AMENDMENTS EFFECTIVE AS OF APRIL 28, 1942, DID SO.
ACCORDINGLY, THE CONTRACTS ENTERED INTO BETWEEN PRIVATE PARTIES IN THE
ALEXANDER CASE BETWEEN APRIL 28, 1942, AND OCTOBER 21, 1942, COME
WITHIN THE SCOPE OF THE RENEGOTIATION ACT. 

                        THE TAX COURT REMEDY. 

BEFORE THE AMENDMENTS INCORPORATED IN IT ON FEBRUARY 25, 1944, BY THE
REVENUE ACT OF 1943(THE SO-CALLED SECOND RENEGOTIATION ACT) THE
ORIGINAL RENEGOTIATION ACT, AS THERETOFORE AMENDED, DID NOT PROVIDE
EXPRESSLY FOR A REVIEW OR REDETERMINATION OF THE INITIAL DETERMINATION
OF THE EXCESS PROFITS AUTHORIZED TO BE MADE BY THE RESPECTIVE
SECRETARIES.  THE 1944 AMENDMENTS ADDED NOT MERELY AN EXPRESS STATEMENT
OF FACTORS TO BE TAKEN INTO CONSIDERATION IN DETERMINING EXCESSIVE
PROFITS (SEC. 403(A)(4)(A)),  FN39  BUT ALSO CREATED A WAR CONTRACTS
PRICE ADJUSTMENT BOARD (SEC. 403(D)(1))  FN40  TO MAKE SUCH
DETERMINATIONS IN THE FUTURE.  ALSO, IT PROVIDED EXPRESSLY FOR
PETITIONS TO BE FILED WITH THE TAX COURT TO SECURE REDETERMINATIONS OF
THE ORDERS OF SUCH BOARD.  (SEC. 403(E)(1).)  FN41  IT EXPRESSLY STATED
THAT "A PROCEEDING BEFORE THE TAX COURT TO FINALLY DETERMINE THE
AMOUNT, IF ANY, OF EXCESSIVE PROFITS SHALL NOT BE TREATED AS A
PROCEEDING TO REVIEW THE DETERMINATION OF THE BOARD, BUT SHALL BE
TREATED AS A PROCEEDING DE NOVO."  (SEC. 403(E)(1).)  IT PROVIDED ALSO
THAT "IN THE ABSENCE OF THE FILING OF A PETITION WITH THE TAX COURT OF
THE UNITED STATES UNDER THE PROVISIONS OF AND WITHIN THE TIME LIMIT
PRESCRIBED IN SUBSECTION (E)(1), SUCH ORDER (OF THE BOARD) SHALL BE
FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO REVIEW OR
REDETERMINATION BY ANY COURT OR OTHER AGENCY."  (SEC. 403(C)(1).)  FN42
ALL OF THE DETERMINATIONS IN THE CASES BEFORE US WERE MADE AFTER
FEBRUARY 25, 1944, AND THOSE IN THE POWNALL CASE WERE MADE ON BEHALF OF
THE BOARD.  THE ABOVE PROCEDURE UNDER SEC. 403(E)(1) ACCORDINGLY WAS
OPEN TO THE PETITIONERS IN THE POWNALL CASE BUT THEY DID NOT FILE A
PETITION WITH THE TAX COURT. 

IN ADDITION TO THE ABOVE PROCEDURES AFFECTING FUTURE DETERMINATIONS
OF EXCESSIVE PROFITS TO BE MADE BY THE BOARD, THE SECOND RENEGOTIATION
ACT ALSO MADE EXPRESS PROVISIONS, IN SEC. 403(E)(2), FN43  FOR A
REDETERMINATION BY THE TAX COURT OF EXCESSIVE PROFITS DETERMINED TO
EXIST BY THE RESPECTIVE SECRETARIES.  THESE PROVISIONS APPLIED FIRST TO
ANY DETERMINATIONS MADE BY A SECRETARY PRIOR TO FEBRUARY 25, 1944, WITH
RESPECT TO A FISCAL YEAR ENDING BEFORE JULY 1, 1943.  IN THOSE
INSTANCES A PETITION FOR REDETERMINATION BY THE TAX COURT WAS PERMITTED
TO BE FILED WITHIN 90 DAYS AFTER FEBRUARY 25, 1944.  WE HAVE NO SUCH
CASE BEFORE US.  THESE PROVISIONS APPLIED ALSO TO ANY DETERMINATION
MADE BY A SECRETARY AFTER FEBRUARY 25, 1944, WITH RESPECT TO A FISCAL
YEAR ENDING BEFORE JULY 1, 1943.  IN THAT EVENT, A PETITION FOR
REDETERMINATION BY THE TAX COURT WAS PERMITTED TO BE FILED WITHIN 90
DAYS AFTER THE DATE OF THE REDETERMINATION.  WE HAVE SUCH SITUATIONS IN
THE LICHTER AND ALEXANDER CASES. 

NO PETITIONS WERE FILED WITH THE TAX COURT IN ANY OF THE CASES BEFORE
US, AND THE TIME FOR DOING SO HAS EXPIRED.  ACCORDINGLY, HERE, AS IN
AIRCRAFT & DIESEL CORP. V. HIRSCH, 331 U.S. 752, 771, WE DO NOT HAVE
BEFORE US, AND WE DO NOT EXPRESS AN OPINION UPON, THE FINALITY WHICH
WOULD HAVE ATTACHED TO A REDETERMINATION BY THE TAX COURT IF SUCH A
REDETERMINATION HAD BEEN SOUGHT AND MADE.  WE HAVE ONLY THE SITUATIONS
PRESENTED BY THE RESPECTIVE FAILURES OF THE PETITIONERS TO RESORT TO
THE TAX COURT IN THE FACE OF THE EXPRESS STATUTORY PROVISIONS MADE FOR
SUCH ADMINISTRATIVE RELIEF. 

AS TO THE EFFECT OF THE STATUTE AND OF THE COURSE OF ACTION TAKEN, WE
HOLD THAT THE STATUTE DID AFFORD PROCEDURAL DUE PROCESS TO THE
RESPECTIVE PETITIONERS BUT THAT NONE OF THEM MADE USE OF THE PROCEDURE
SO PROVIDED FOR THEM.  CONSISTENT WITH THE PRIMARY NEED FOR SPEED AND
DEFINITENESS IN THESE MATTERS, THE ORIGINAL ADMINISTRATIVE
DETERMINATIONS BY THE RESPECTIVE SECRETARIES OR BY THE BOARD WERE
INTENDED PRIMARILY AS RENEGOTIATIONS IN THE COURSE OF WHICH THE
INTERESTED PARTIES WERE TO HAVE AN OPPORTUNITY TO REACH AN AGREEMENT
WITH THE GOVERNMENT OR IN CONNECTION WITH WHICH THE GOVERNMENT, IN THE
ABSENCE OF SUCH AN AGREEMENT, MIGHT ANNOUNCE ITS UNILATERAL
DETERMINATION OF THE AMOUNT OF EXCESSIVE PROFIT CLAIMED BY THE UNITED
STATES.  THIS INITIAL PROCEEDING WAS NOT REQUIRED TO BE A FORMAL
PROCEEDING PRODUCING A RECORD FOR REVIEW BY SOME OTHER AUTHORITY.  IN
LIEU OF SUCH A PROCEDURE FOR REVIEW, THE SECOND RENEGOTIATION ACT
PROVIDED AN ADEQUATE OPPORTUNITY FOR A REDETERMINATION OF THE EXCESSIVE
PROFITS, IF ANY, DE NOVO BY THE TAX COURT.  "THE DEMANDS OF DUE PROCESS
DO NOT REQUIRE A HEARING, AT THE INITIAL STAGE OR AT ANY PARTICULAR
POINT OR AT MORE THAN ONE POINT IN AN ADMINISTRATIVE PROCEEDING SO LONG
AS THE REQUISITE HEARING IS HELD BEFORE THE FINAL ORDER BECOMES
EFFECTIVE."  OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126, 152-153. 

WE UPHOLD THE DECISIONS BELOW AND THE CONTENTIONS OF THE GOVERNMENT
TO THE EFFECT THAT THE STATUTORY PROVISION THUS MADE FOR A PETITION TO
THE TAX COURT WAS NOT, IN ANY CASE BEFORE US, AN OPTIONAL OR
ALTERNATIVE PROCEDURE.  IT PROVIDED THE ONE AND ONLY PROCEDURE TO
SECURE A REDETERMINATION OF THE EXCESSIVE PROFITS WHICH HAD BEEN
DETERMINED TO EXIST BY THE ORDERS OF THE RESPECTIVE SECRETARIES OR OF
THE BOARD IN THE CASES BEFORE US.  FAILURE OF THE RESPECTIVE
PETITIONERS TO EXHAUST THAT PROCEDURE HAS LEFT THEM WITH NO RIGHT TO
PRESENT HERE ISSUES SUCH AS THOSE AS TO COVERAGE AND THE AMOUNT OF
PROFITS WHICH MIGHT HAVE BEEN PRESENTED THERE.  ACCORDINGLY, THERE IS
EXCLUDED FROM OUR CONSIDERATION IN THIS PROCEEDING THE CONTENTION IN
THE LICHTER CASE THAT THE PETITIONERS' SUBCONTRACTS WERE EXEMPT FROM
RENEGOTIATION ON THE GROUND THAT THEY WERE SUBCONTRACTS UNDER PRIME
CONTRACTS WITH A DEPARTMENT OF THE GOVERNMENT AND HAD BEEN AWARDED TO
THEM AS THE RESULT OF COMPETITIVE BIDDING FOR THE CONSTRUCTION OF
BUILDINGS AND FACILITIES.  THERE IS EXCLUDED ALSO, FOR EXAMPLE, THE
CONTENTION IN THE POWNALL CASE THAT PETITIONERS' CONTRACTS WHICH WERE
FOR AMOUNTS UNDER $100,000 EACH WERE NOT SUBJECT TO RENEGOTIATION. 
LIKEWISE, IN THE ALEXANDER CASE, THERE IS EXCLUDED THE PETITIONER'S
CONTENTION THAT IT HAD NOT MADE EXCESSIVE PROFITS WITHIN THE MEANING OF
THE STATUTE AND THAT ITS CONTRACTS FOR PROCESSING WOOL WERE NOT
"SUBCONTRACTS" WITHIN THE MEANING OF THE ORIGINAL RENEGOTIATION ACT. 

FOR THESE REASONS, WE UPHOLD THE CONSTITUTIONALITY OF THE
RENEGOTIATION ACT ON ITS FACE AS AUTHORITY FOR THE RECOVERY OF
EXCESSIVE PROFITS AS ORDERED IN THE THREE RESPECTIVE CASES BEFORE US,
AND WE HOLD THAT THE RESPECTIVE PETITIONERS DO NOT HAVE THE RIGHT TO
PRESENT QUESTIONS AS TO THE COVERAGE OF THAT ACT, AS TO THE AMOUNT OF
EXCESSIVE PROFITS ADJUDGED TO BE DUE FROM THEM OR AS TO OTHER
COMPARABLE ISSUES WHICH MIGHT HAVE BEEN PRESENTED BY THEM TO THE TAX
COURT UPON A TIMELY PETITION TO THAT COURT FOR A REDETERMINATION OF
EXCESSIVE PROFITS, IF ANY. 

ACCORDINGLY, IN EACH OF THE CASES BEFORE US, THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  THE RENEGOTIATION ACT, INCLUDING ITS AMENDMENTS, IS HERE TREATED
AS CONSISTING OF: 

I. SECTION 403, SIXTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION
ACT, 1942, APPROVED APRIL 28, 1942, C. 247, 56 STAT. 226, 245-246. 
SOMETIMES THIS IS CALLED THE ORIGINAL OR FIRST RENEGOTIATION ACT.  FOR
RELEVANT EXCERPTS FROM ITS TEXT SEE APPENDIX I, INFRA, P. 793. 

II.  TITLE VIII, RENEGOTIATION OF WAR CONTRACTS, REVENUE ACT OF 1942,
APPROVED OCTOBER 21, 1942, C. 619, 56 STAT. 798, 982-985, 26 U.S.C.A
IINTERNAL REVENUE ACTS BEGINNING 1940, REVENUE ACT OF 1942, SEC. 801,
P. 376.  FOR RELEVANT EXCERPTS FROM ITS TEXT SEE APPENDIX II, INFRA, P.
795. 

III.  SECTION 1, MILITARY APPROPRIATION ACT, 1944, APPROVED JULY 1,
1943, C. 185, 57 STAT. 347-348. 

IV.  AN ACT TO PREVENT THE PAYMENT OF EXCESSIVE FEES OR COMPENSATION
IN CONNECTION WITH THE NEGOTIATION OF WAR CONTRACTS, APPROVED JULY 14,
1943, C. 239, 57 STAT. 564-565. 

V. TITLE VII, RENEGOTIATION OF WAR CONTRACTS, AND TITLE VIII,
REPRICING OF WAR CONTRACTS, REVENUE ACT OF 1943, PASSED NOTWITHSTANDING
THE OBJECTIONS OF THE PRESIDENT, FEBRUARY 25, 1944, C. 63, 58 STAT. 21,
78-93, 50 U.S.C. (SUPP. V, 1946) SECS. 1191, 1192; ALSO 26 U.S.C.A.
INTERNAL REVENUE ACTS BEGINNING 1940, REVENUE ACT OF 1943, SECS. 701
AND 801, PP. 491 AND 508.  FOR RELEVANT EXCERPTS FROM ITS TEXT SEE
APPENDIX III, INFRA, P. 798.  SOMETIMES THIS IS CALLED THE SECOND
RENEGOTIATION ACT.  SECTION 701(B), OF THE FOREGOING CHAPTER 63, ADDED
TO SEC. 403 OF THE SIXTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION
ACT, 1942, A FINAL SUBSECTION AS FOLLOWS:  "(1) THIS SECTION MAY BE
CITED AS THE 'RENEGOTIATION ACT'."  58 STAT. 90.  SECTION 701(D) ALSO
PROVIDED THAT THIS SUBSECTION (L) OF SEC. 403, AND CERTAIN OTHERS,
"SHALL BE EFFECTIVE AS IF SUCH AMENDMENTS AND SUBSECTIONS HAD BEEN A
PART OF SECTION 403 OF SUCH ACT ON THE DATE OF ITS ENACTMENT."  58
STAT. 92.    VI.  AN ACT TO EXTEND THROUGH DECEMBER 31, 1945, THE
TERMINATION DATE UNDER THE RENEGOTIATION ACT, APPROVED JUNE 30, 1945,
C. 210, 59 STAT. 294-295, 50 U.S.C. (SUPP. V, 1946) SEC. 1191. 

FN2  IN ADDITION TO THE OPINIONS OF THE CIRCUIT COURTS OF APPEALS AND
DISTRICT COURTS CITED IN THE TEXT, SEE RING CONSTRUCTION CORP. V.
SECRETARY OF WAR, 8 T.C. 1070; COHEN V. SECRETARY OF WAR, 7 T.C. 1002;
STEIN BROS. MFG. CO. V. SECRETARY OF WAR, 7 T.C. 863.  FOR DISCUSSIONS
OF THE RENEGOTIATION ACT BY THIS COURT, STOPPING SHORT OF PASSING UPON
ITS CONSTITUTIONALITY, SEE AIRCRAFT & DIESEL CORP. V. HIRSCH, 331 U.S.
752; AND MACAULEY V. WATERMAN S.S. CORP., 327 U.S. 540. 

FN3  AMONG THE MANY OTHER PROVISIONS IMPLEMENTING THE CONGRESS AND
THE PRESIDENT WITH POWERS TO MEET THE VARIED DEMANDS OF WAR, THE
FOLLOWING OBVIOUSLY COMMAND ATTENTION:  "WE THE PEOPLE OF THE UNITED
STATES, IN ORDER TO FORM A MORE PERFECT UNION,  ...  PROVIDE FOR THE
COMMON DEFENCE,... AND SECURE THE BLESSINGS OF LIBERTY TO OURSELVES AND
OUR POSTERITY, DO ORDAIN AND ESTABLISH THIS CONSTITUTION FOR THE UNITED
STATES OF AMERICA."  U.S. CONST. PREAMBLE. 

"THE CONGRESS SHALL HAVE POWER TO LAY AND COLLECT TAXES, DUTIES,
IMPOSTS AND EXCISES, TO PAY THE DEBTS AND PROVIDE FOR THE COMMON
DEFENCE AND GENERAL WELFARE OF THE UNITED STATES;... 

 .         .         .         .         . 

"TO DECLARE WAR,... 

     .         .         .         .         . 

"TO PROVIDE AND MAINTAIN A NAVY; 

     .         .   .         .         . 

"TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING
INTO EXECUTION THE FOREGOING POWERS,  ...."  ID. ART. I, SEC. 8. 

"THE PRESIDENT SHALL BE COMMANDER IN CHIEF OF THE ARMY AND NAVY OF
THE UNITED STATES,...."  ID. ART. II, SEC. 2, CL. 1. 

MADISON SAID IN THE FEDERALIST, NUMBER XLI, - GENERAL VIEW OF THE
POWERS CONFERRED BY THE CONSTITUTION:  "SECURITY AGAINST FOREIGN DANGER
IS ONE OF THE PRIMITIVE OBJECTS OF CIVIL SOCIETY.  IT IS AN AVOWED AND
ESSENTIAL OBJECT OF THE AMERICAN UNION.  THE POWERS REQUISITE FOR
ATTAINING IT MUST BE EFFECTUALLY CONFIDED TO THE FEDERAL COUNCILS." 

HAMILTON SAID IN THE FEDERALIST, NUMBER XXIII, - THE NECESSITY OF A
GOVERNMENT AS ENERGETIC AS THE ONE PROPOSED TO THE PRESERVATION OF THE
UNION: 

"THE CIRCUMSTANCES THAT ENDANGER THE SAFETY OF NATIONS ARE INFINITE,
AND FOR THIS REASON NO CONSTITUTIONAL SHACKLES CAN WISELY BE IMPOSED ON
THE POWER TO WHICH THE CARE OF IT IS COMMITTED.  THIS POWER OUGHT TO BE
CO-EXTENSIVE WITH ALL THE POSSIBLE COMBINATIONS OF SUCH CIRCUMSTANCES;
AND OUGHT TO BE UNDER THE DIRECTION OF THE SAME COUNCILS WHICH ARE
APPOINTED TO PRESIDE OVER THE COMMON DEFENCE." 

FN4  "THE CONSTITUTION GRANTS TO CONGRESS POWER 'TO RAISE AND SUPPORT
ARMIES,' 'TO PROVIDE AND MAINTAIN A NAVY,' AND TO MAKE ALL LAWS
NECESSARY AND PROPER TO CARRY THESE POWERS INTO EXECUTION.  UNDER THIS
AUTHORITY CONGRESS CAN DRAFT MEN FOR BATTLE SERVICE.  SELECTIVE DRAFT
LAW CASES, 245 U.S. 366.  ITS POWER TO DRAFT BUSINESS ORGANIZATIONS TO
SUPPORT THE FIGHTING MEN WHO RISK THEIR LIVES CAN BE NO LESS."  UNITED
STATES V. BETHLEHEM STEEL CORP., 315 U.S. 289, 305. 

IN WRITING OF THE POWER OF CONGRESS TO PASS A CONSCRIPTION ACT,
PRESIDENT LINCOLN SAID, WITH CHARACTERISTIC CLEARNESS: 

"WHETHER A POWER CAN BE IMPLIED WHEN IT IS NOT EXPRESSED HAS OFTEN
BEEN THE SUBJECT OF CONTROVERSY; BUT THIS IS THE FIRST CASE IN WHICH
THE DEGREE OF EFFRONTERY HAS BEEN VENTURED UPON OF DENYING A POWER
WHICH IS PLAINLY AND DISTINCTLY WRITTEN DOWN IN THE CONSTITUTION.  THE
CONSTITUTION DECLARES THAT 'THE CONGRESS SHALL HAVE POWER  ...  TO
RAISE AND SUPPORT ARMIES; BUT NO APPROPRIATION OF MONEY TO THAT USE
SHALL BE FOR A LONGER TERM THAN TWO YEARS.'  THE WHOLE SCOPE OF THE
CONSCRIPTION ACT IS 'TO RAISE AND SUPPORT ARMIES.'  THERE IS NOTHING
ELSE IN IT.... 

"...  DO YOU ADMIT THAT THE POWER IS GIVEN TO RAISE AND SUPPORT
ARMIES, AND YET INSIST THAT BY THIS ACT CONGRESS HAS NOT EXERCISED THE
POWER IN A CONSTITUTIONAL MODE?  - HAS NOT DONE THE THING IN THE RIGHT
WAY?  WHO IS TO JUDGE OF THIS?  THE CONSTITUTION GIVES CONGRESS THE
POWER, BUT IT DOES NOT PRESCRIBE THE MODE, OR EXPRESSLY DECLARE WHO
SHALL PRESCRIBE IT.  IN SUCH CASE CONGRESS MUST PRESCRIBE THE MODE, OR
RELINQUISH THE POWER.  THERE IS NO ALTERNATIVE....  THE POWER IS GIVEN
FULLY, COMPLETELY, UNCONDITIONALLY.  IT IS NOT A POWER TO RAISE ARMIES
IF STATE AUTHORITIES CONSENT; NOR IF THE MEN TO COMPOSE THE ARMIES ARE
ENTIRELY WILLING; BUT IT IS A POWER TO RAISE AND SUPPORT ARMIES GIVEN
TO CONGRESS BY THE CONSTITUTION, WITHOUT AN 'IF.'"  9 NICOLAY AND HAY,
WORKS OF ABRAHAM LINCOLN 75-77(1894). 

THE FOREGOING QUOTATION IS FROM AN OPINION BY PRESIDENT LINCOLN,
WHICH WAS NOT ACTUALLY ISSUED OR PUBLISHED BY HIM BUT WHICH WAS QUOTED
TO THE ABOVE EXTENT BY HONORABLE CHARLES EVANS HUGHES, OF NEW YORK, IN
HIS ADDRESS ON "WAR POWERS UNDER THE CONSTITUTION" BEFORE THE AMERICAN
BAR ASSOCIATION, SEPTEMBER 5, 1917, 42 A.B.A. REP. 232, 234-235. 

THE DRAFT WAS PUT IN FORCE BOTH BY THE UNION AND BY THE CONFEDERACY
DURING THE CIVIL WAR AND ITS VALIDITY WAS SUSTAINED BY THE COURTS IN
BOTH NORTH AND SOUTH.  "THE POWER OF COERCING THE CITIZEN TO RENDER
MILITARY SERVICE, IS INDEED A TRANSCENDENT POWER, IN THE HANDS OF ANY
GOVERNMENT; BUT SO FAR FROM BEING INCONSISTENT WITH LIBERTY, IT IS
ESSENTIAL TO ITS PRESERVATION."  BURROUGHS V. PEYTON, 16 GRATT.  470,
473.  SEE CASES CITED IN 42 A.B.A. REP. 234 N. 1, AND SEE SELECTIVE
DRAFT LAW CASES, 245 U.S. 366; JACOBSON V. MASSACHUSETTS, 197 U.S. 11,
29; IN RE GRIMLEY, 137 U.S. 147, 153. 

FN5  "OUR OWN OBJECTIVES ARE CLEAR; THE OBJECTIVE OF SMASHING THE
MILITARISM IMPOSED BY WAR LORDS UPON THEIR ENSLAVED PEOPLES; THE
OBJECTIVE OF LIBERATING THE SUBJUGATED NATIONS; THE OBJECTIVE OF
ESTABLISHING AND SECURING FREEDOM OF SPEECH, FREEDOM OF RELIGION,
FREEDOM FROM WANT, AND FREEDOM FROM FEAR EVERYWHERE IN THE WORLD. 

"WE SHALL NOT STOP SHORT OF THESE OBJECTIVES; NOR SHALL WE BE
SATISFIED MERELY TO GAIN THEM AND CALL IT A DAY.  I KNOW THAT I SPEAK
FOR THE AMERICAN PEOPLE - AND I HAVE GOOD REASON TO BELIEVE I SPEAK
ALSO FOR ALL THE OTHER PEOPLES WHO FIGHT WITH US - WHEN I SAY THAT THIS
TIME WE ARE DETERMINED NOT ONLY TO WIN THE WAR, BUT ALSO TO MAINTAIN
THE SECURITY OF THE PEACE WHICH WILL FOLLOW. 

"BUT MODERN METHODS OF WARFARE MAKE IT A TASK, NOT ONLY OF SHOOTING
AND FIGHTING, BUT AN EVEN MORE URGENT ONE OF WORKING AND PRODUCING. 

"VICTORY REQUIRES THE ACTUAL WEAPONS OF WAR AND THE MEANS OF
TRANSPORTING THEM TO A DOZEN POINTS OF COMBAT. 

"IT WILL NOT BE SUFFICIENT FOR US AND THE OTHER UNITED NATIONS TO
PRODUCE A SLIGHTLY SUPERIOR SUPPLY OF MUNITIONS TO THAT OF GERMANY,
JAPAN, ITALY, AND THE STOLEN INDUSTRIES IN THE COUNTRIES WHICH THEY
HAVE OVERRUN. 

"THE SUPERIORITY OF THE UNITED NATIONS IN MUNITIONS AND SHIPS MUST BE
OVERWHELMING - SO OVERWHELMING THAT THE AXIS NATIONS CAN NEVER HOPE TO
CATCH UP WITH IT.  IN ORDER TO ATTAIN THIS OVERWHELMING SUPERIORITY THE
UNITED STATES MUST BUILD PLANES AND TANKS AND GUNS AND SHIPS TO THE
UTMOST LIMIT OF OUR NATIONAL CAPACITY.  WE HAVE THE ABILITY AND
CAPACITY TO PRODUCE ARMS NOT ONLY FOR OUR OWN FORCES BUT ALSO FOR THE
ARMIES, NAVIES, AND AIR FORCES FIGHTING ON OUR SIDE. 

"AND OUR OVERWHELMING SUPERIORITY OF ARMAMENT MUST BE ADEQUATE TO PUT
WEAPONS OF WAR AT THE PROPER TIME INTO THE HANDS OF THOSE MEN IN THE
CONQUERED NATIONS, WHO STAND READY TO SEIZE THE FIRST OPPORTUNITY TO
REVOLT AGAINST THEIR GERMAN AND JAPANESE OPPRESSORS, AND AGAINST THE
TRAITORS IN THEIR OWN RANKS, KNOWN BY THE ALREADY INFAMOUS NAME OF
'QUISLINGS.'  AS WE GET GUNS TO THE PATRIOTS IN THOSE LANDS, THEY TOO
WILL FIRE SHOTS HEARD 'ROUND THE WORLD. 

"THIS PRODUCTION OF OURS IN THE UNITED STATES MUST BE RAISED FAR
ABOVE ITS PRESENT LEVELS, EVEN THOUGH IT WILL MEAN THE DISLOCATION OF
THE LIVES AND OCCUPATIONS OF MILLIONS OF OUR OWN PEOPLE.  WE MUST RAISE
OUR SIGHTS ALL ALONG THE PRODUCTION LINE.  LET NO MAN SAY IT CANNOT BE
DONE.  IT MUST BE DONE - AND WE HAVE UNDERTAKEN TO DO IT. 

"I HAVE JUST SENT A LETTER OF DIRECTIVE TO THE APPROPRIATE
DEPARTMENTS AND AGENCIES OF OUR GOVERNMENT, ORDERING THAT IMMEDIATE
STEPS BE TAKEN: 

"1.  TO INCREASE OUR PRODUCTION RATE OF AIRPLANES SO RAPIDLY THAT IN
THIS YEAR, 1942, WE SHALL PRODUCE 60,000 PLANES, 10,000 MORE THAN THE
GOAL SET A YEAR AND A HALF AGO.  THIS INCLUDES 45,000 COMBAT PLANES -
BOMBERS, DIVE-BOMBERS, PUSUIT PLANES.  THE RATE OF INCREASE WILL BE
CONTINUED, SO THAT NEXT YEAR, 1943, WE SHALL PRODUCE 125,000 AIRPLANES,
INCLUDING 100,000 COMBAT PLANES. 

"2.  TO INCREASE OUR PRODUCTION RATE OF TANKS SO RAPIDLY THAT IN THIS
YEAR, 1942, WE SHALL PRODUCE 45,000 TANKS; AND TO CONTINUE THAT
INCREASE SO THAT NEXT YEAR, 1943, WE SHALL PRODUCE 75,000 TANKS. 

"3.  TO INCREASE OUR PRODUCTION RATE OF ANTIAIRCRAFT GUNS SO RAPIDLY
THAT IN THIS YEAR, 1942, WE SHALL PRODUCE 20,000 OF THEM; AND TO
CONTINUE THAT INCREASE SO THAT NEXT YEAR, 1943, WE SHALL PRODUCE 35,000
ANTIAIRCRAFT GUNS. 

"4.  TO INCREASE OUR PRODUCTION RATE OF MERCHANT SHIPS SO RAPIDLY
THAT IN THIS YEAR, 1942, WE SHALL BUILD 8,000,000 DEADWEIGHT TONS AS
COMPARED WITH A 1941 PRODUCTION OF 1,100,000.  WE SHALL CONTINUE THAT
INCREASE SO THAT NEXT YEAR, 1943, WE SHALL BUILD 10,000,000 TONS. 

"THESE FIGURES AND SIMILAR FIGURES FOR A MULTITUDE OF OTHER
IMPLEMENTS OF WAR WILL GIVE THE JAPANESE AND NAZIS A LITTLE IDEA OF
JUST WHAT THEY ACCOMPLISHED IN THE ATTACK ON PEARL HARBOR. 

"OUR TASK IS HARD - OUR TASK IS UNPRECEDENTED - AND THE TIME IS
SHORT.  WE MUST STRAIN EVERY EXISTING ARMAMENT-PRODUCING FACILITY TO
THE UTMOST.  WE MUST CONVERT EVERY AVAILABLE PLANT AND TOOL TO WAR
PRODUCTION.  THAT GOES ALL THE WAY FROM THE GREATEST PLANTS TO THE
SMALLEST - FROM THE HUGE AUTOMOBILE INDUSTRY TO THE VILLAGE MACHINE
SHOP. 

"PRODUCTION FOR WAR IS BASED ON MEN AND WOMEN - THE HUMAN HANDS AND
BRAINS WHICH COLLECTIVELY WE CALL LABOR.  OUR WORKERS STAND READY TO
WORK LONG HOURS; TO TURN OUT MORE IN A DAY'S WORK; TO KEEP THE WHEELS
TURNING AND THE FIRES BURNING 24 HOURS A DAY, AND 7 DAYS A WEEK.  THEY
REALIZE WELL THAT ON THE SPEED AND EFFICIENCY OF THEIR WORK DEPEND THE
LIVES OF THEIR SONS AND THEIR BROTHERS ON THE FIGHTING FRONTS. 

"PRODUCTION FOR WAR IS BASED ON METALS AND RAW MATERIALS - STEEL,
COPPER, RUBBER, ALUMINUM, ZINC, TIN.  GREATER AND GREATER QUANTITIES OF
THEM WILL HAVE TO BE DIVERTED TO WAR PURPOSES.  CIVILIAN USE OF THEM
WILL HAVE TO BE CUT FURTHER AND STILL FURTHER - AND, IN MANY CASES,
COMPLETELY ELIMINATED. 

"WAR COSTS MONEY.  SO FAR, WE HAVE HARDLY EVEN BEGUN TO PAY FOR IT.
WE HAVE DEVOTED ONLY 15 PERCENT OF OUR NATIONAL INCOME TO NATIONAL
DEFENSE.  AS WILL APPEAR IN MY BUDGET MESSAGE TOMORROW, OUR WAR PROGRAM
FOR THE COMING FISCAL YEAR WILL COST $56,000,000,000 OR, IN OTHER
WORDS, MORE THAN ONE-HALF OF THE ESTIMATED ANNUAL NATIONAL INCOME. 
THIS MEANS TAXES AND BONDS AND BONDS AND TAXES.  IT MEANS CUTTING
LUXURIES AND OTHER NONESSENTIALS.  IN A WORD, IT MEANS AN ALL-OUT WAR
BY INDIVIDUAL EFFORT AND FAMILY EFFORT IN A UNITED COUNTRY. 

"ONLY THIS ALL-OUT SCALE OF PRODUCTION WILL HASTEN THE ULTIMATE ALL
OUT VICTORY.  SPEED WILL COUNT.  LOST GROUND CAN ALWAYS BE REGAINED -
LOST TIME NEVER.  SPEED WILL SAVE LIVES; SPEED WILL SAVE THIS NATION
WHICH IS IN PERIL; SPEED WILL SAVE OUR FREEDOM AND CIVILIZATION - AND
SLOWNESS HAS NEVER BEEN AN AMERICAN CHARACTERISTIC."  88 CONG. REC. 32,
33-34(1942). 

FN6  "EVER SINCE THE BEGINNING OF THE LAST WAR THERE HAS BEEN A
CONSTANT EFFORT TO FIND AN EFFECTIVE METHOD OF CONTROLLING WAR PROFITS
WITHOUT IMPEDING WAR PRODUCTION.  THE RENEGOTIATION LAW IS THE LATEST
PRODUCT OF SUCH EFFORTS.  TO OBTAIN SPEED WE HAVE HAD TO USE
CONTRACTING METHODS THAT WOULD NEVER HAVE BEEN TOLERATED IN PEACETIME. 
WE GRANTED COST-PLUS-FIXED-FEE CONTRACTS WHERE THE SPECIFICATIONS WERE
NOT KNOWN OR HAD TO BE SUBJECT TO NUMEROUS CHANGES OR WHERE THERE WAS
NO TIME TO PREPARE DETAILED SPECIFICATIONS.  WE ALSO GRANTED LUMP-SUM
CONTRACTS FOR MANY ITEMS WHICH HAD NEVER BEFORE BEEN MADE IN QUANTITY
AND FOR WHICH ESTIMATES OF COST WERE MERE GUESSES.  THIS WAS
PARTICULARLY TRUE OF THE BILLIONS OF DOLLARS OF WAR CONTRACTS WHICH
WERE HASTILY 'SHOVELED' OUT EARLY IN JANUARY 1942. 

"IS THE RENEGOTIATION LAW A NECESSARY AND DESIRABLE METHOD OF
COUNTERACTING THE WASTEFUL EFFECTS OF SUCH NECESSARY PRACTICES IN EARLY
WARTIME PROCUREMENT?  IS IT BEING ADMINISTERED IN SUCH A WAY AS TO GIVE
EFFECT TO THE STATUTORY INTENT?  WHAT CHANGES, IF ANY, ARE NEEDED? 

"AS TO THE NECESSITY AND DESIRABILITY OF THE RENEGOTIATION LAW: 

"(1)  BECAUSE OF THE WARTIME NEED FOR RAPID PROCUREMENT OF MATERIALS
OF WAR, NEW MATERIALS WITH WHICH THERE HAS BEEN NO PREVIOUS
MANUFACTURING EXPERIENCE AND OTHER ARTICLES PREVIOUSLY MANUFACTURED
ONLY IN RELATIVELY SMALL QUANTITIES, SOME PROCEDURE FOR SUBSEQUENT
PRICE ADJUSTMENT IS NECESSARY AND DESIRABLE IF EXCESSIVE WAR PROFITS
AND COSTS ARE TO BE AVOIDED. 

"(2)  TAXES ALONE WILL NOT DO THE JOB BECAUSE (A) HIGHER CORPORATE
TAX RATES ARE LIKELY TO ENCOURAGE HIGHER COSTS AND DISCOURAGE
ECONOMICAL PRODUCTION; (B) NO SCHEME OF TAXATION HAS BEEN DEVISED WHICH
IS SUFFICIENTLY FLEXIBLE TO PROVIDE AN INCENTIVE FOR EFFICIENT LOW-COST
PRODUCTION; (C) A PROFIT PERCENTAGE WHICH WOULD FAIRLY REWARD ONE WAR
CONTRACTOR WITH ONE TYPE OF FINANCIAL STRUCTURE WOULD BANKRUPT A SECOND
CONTRACTOR WITH A DIFFERENT FINANCIAL SET-UP, AND WOULD PROVIDE
INORDINATELY EXCESSIVE PROFITS FOR A THIRD CONTRACTOR WITH A STILL
DIFFERENT FINANCIAL PROBLEM.    "(3)  WAR CONTRACTORS IN MOST CASES CAN
PROTECT THEMSELVES AGAINST LOSS BY ESCALATOR CLAUSES AND OTHER CONTRACT
PROVISIONS FOR CONTINGENCIES.  THE PEOPLE CAN OBTAIN PROTECTION IN MANY
CASES ONLY THROUGH SOME PROCEDURE SUCH AS RENEGOTIATION. 

"(4)  EXPERIENCE HAS SHOWN 'COST-PLUS' CONTRACTS TO BE WORSE THAN
WORTHLESS IN THE EFFORT TO PREVENT EXCESSIVE COSTS.  THEY STRONGLY TEND
TO INCREASE COSTS INSTEAD OF THE REVERSE. 

"THE ADMINISTRATION OF THE RENEGOTIATION LAW DURING THE FIRST 10
MONTHS OF ITS EXISTENCE HAS BEEN CHARACTERIZED BY TWO SIGNIFICANT
ACCOMPLISHMENTS:    "(1)  THE ASSEMBLY IN GOVERNMENT OF AN UNUSUAL
GROUP OF ABLE, CONSCIENTIOUS, AND PATRIOTIC LAWYERS, ACCOUNTANTS, AND
BUSINESSMEN AS ADMINISTRATORS OF RENEGOTIATION; 

"(2)  THE GRADUAL EDUCATION OF WAR CONTRACTORS AS TO THE REASONS FOR
AND IMPORTANCE OF THEIR ADOPTING A POLICY OF TAILORING THEIR OWN
PROFITS TO LEVELS WHICH, IN THEIR OWN SPECIAL SITUATIONS, ARE FAIR BOTH
TO THEM AND TO THE GOVERNMENT. 

"ON THE OTHER HAND, THE ADMINISTRATION OF THE RENEGOTIATION LAW AND
THE LAW ITSELF ARE PROPERLY SUBJECT TO CERTAIN CONSTRUCTIVE
CRITICISMS: 

"(1)  SUBSTANTIAL VARIATIONS IN ADMINISTRATIVE POLICY AND ATTITUDE
STILL EXIST AMONG THE FOUR DEPARTMENTS CHARGED WITH RESPONSIBILITY FOR
RENEGOTIATION, ALTHOUGH THIS CONDITION HAS BEEN NOTICEABLY IMPROVED IN
RECENT WEEKS.  THE EXISTENCE OF SUCH A CONDITION HAS CREATED WHOLLY
UNNECESSARY CONFUSION, UNCERTAINTY, AND MISUNDERSTANDING AMONG
CONTRACTORS. 

"(2)  RESULTS OF NAVY RENEGOTIATIONS TO DATE JUSTIFY AN INFERENCE
THAT IN ITS EARLY PROCEEDINGS THE NAVY PRICE ADJUSTMENT BOARD MAY HAVE
BEEN TOO STRONGLY INFLUENCED BY A DESIRE TO ACHIEVE THE SAME KIND OF
MATHEMATICAL EXACTNESS WHICH RESULTS FROM A COST-PLUS-A-PERCENTAGE-OF
COST CONTRACT, A RESULT WHICH IS INCONSISTENT WITH THE FLEXIBILITY
WHICH WAS THE BASIC PURPOSE OF THE RENEGOTIATION LAW. 

"(3)  ARMY ADMINISTRATION HAS BEEN RENDERED UNNECESSARILY CUMBERSOME
BY USE OF MILITARY CHANNELS IN THE HANDLING OF AN ESSENTIALLY BUSINESS
AND FINANCIAL ENTERPRISE. 

"(4)  THE PRINCIPLES AND RESULTS OF RENEGOTIATION HAVE BEEN SHROUDED
WITH ENTIRELY TOO MUCH SECRECY NOT ONLY AS TO THE PUBLIC BUT AS TO THE
RENEGOTIATORS THEMSELVES, CAUSING MANY WAR CONTRACTORS TO BE DISTRACTED
BY WHOLLY UNWARRANTED BUT NEVERTHELESS NATURAL FEARS OF THE UNKNOWN. 

"(5)  IN SOME CASES THE COST AUDITS INCIDENT TO RENEGOTIATION AND
TAXATION HAVE BEEN UNNECESSARILY DUPLICATORY. 

"(6)  IT IS IMPOSSIBLE TO RECOVER EVERY LAST DOLLAR OF EXCESSIVE WAR
PROFITS WITHOUT UNNECESSARILY INTERFERING WITH WAR PRODUCTION, AND
OVERZEALOUS ADMINISTRATION OF THE VAST POWERS DELEGATED BY THIS LAW
COULD BE SERIOUSLY DETRIMENTAL TO WAR PROCUREMENT."  S, REP. NO. 10,
PART 5, 78TH CONG., 1ST SESS. 1-3(1943). 

FN7  "5.  THE NECESSARY RESULT OF THIS COMBINATION OF CIRCUMSTANCES
IS THAT THE WAR PROCURING AGENCIES CANNOT USE NORMAL METHODS OF
PROCUREMENT.  THE PRESSING NEED FOR SPEED REQUIRES THE ABANDONMENT OF
DRAWN-OUT NEGOTIATION AND THE CAREFUL SURVEYS OF ALL RELEVANT FACTORS
WHICH SOUND PURCHASING WOULD OTHERWISE REQUIRE.  COMPETITION
NECESSARILY WANES AND NO LONGER OFFERS AN ADEQUATE GUIDE TO THE PRICES
WHICH SHOULD BE PAID.  ABOVE ALL, THE FORECASTING OF COSTS OF
PRODUCTION BECOMES, IN LARGE MEASURE, A MATTER OF INFORMED GUESSING
RATHER THAN OF REAL COST ANALYSIS.  THIS IS TRUE IN THE CASE OF NEW
PRODUCTS, NEW PLANTS, AND NEW PRODUCERS; IT IS LIKEWISE TRUE, THOUGH
PERHAPS IN LESSER DEGREE, WHEREVER THE QUANTITIES TO BE MANUFACTURED
ARE SHARPLY INCREASED OVER PRE-WAR AMOUNTS.  ACCORDINGLY, ADVANCE
PRICES QUOTED IN GOOD FAITH BY MANUFACTURERS IN A LARGE NUMBER OF CASES
HAVE LITTLE RELATION TO COSTS ACTUALLY EXPERIENCED IN THE COURSE OF
PRODUCTION.  FURTHERMORE, MANY MANUFACTURERS FEEL UNABLE TO QUOTE FIRM
PRICES WITHOUT INCLUDING RESERVES TO COVER MANY CONTINGENCIES THE
OCCURRENCE OF WHICH MIGHT SKYROCKET THEIR COSTS, AND SO OVERTURN ALL
THEIR ESTIMATES. 

"6.  THESE WERE THE CONDITIONS OF WARTIME PROCUREMENT, AFTER DECEMBER
7, 1941, AND THE WAR DEPARTMENT HAD TO FORCE ITS PROCUREMENT ACTIVITIES
INTO THEIR MOLD.  EFFORTS WERE MADE, OF COURSE, TO DEVELOP CONTRACTUAL
DEVICES WHICH WOULD MINIMIZE THE PARAMOUNT DIFFICULTY IN ESTIMATING
PRODUCTION COSTS.  THE COST-PLUS-FIXED-FEE CONTRACT WAS USED WHERE
UNAVOIDABLE, BUT THIS FORM HAS THE DISADVANTAGE OF REMOVING FINANCIAL
INCENTIVES TO EFFICIENCY AND OF IMPOSING A HEAVY BURDEN OF AUDITING
UPON THE GOVERNMENT AND THE CONTRACTOR.  ESCALATOR CLAUSES, PERMITTING
PRICES TO BE ADJUSTED ACCORDING TO FLUCTUATIONS IN INDICES OF LABOR AND
MATERIAL COSTS, WERE ALSO USED BUT PROVED UNWORKABLE.  LETTERS OF
INTENT, UNDER WHICH MANUFACTURE WAS COMMENCED PRIOR TO THE NEGOTIATION
OF A FORMAL CONTRACT, HELPED TO SPEED PRODUCTION, BUT COULD NOT, OF
COURSE, SOLVE THE ULTIMATE PROBLEM OF DECREASING COSTS AND PREVENTING
EXCESSIVE PROFITS. 

"7.  SHORTLY AFTER THE DECLARATIONS OF WAR, BOTH THE LEGISLATIVE AND
THE EXECUTIVE BRANCHES OF THE GOVERNMENT REALIZED THAT EXCESSIVE
WARTIME PROFITS WERE CERTAIN TO ACCURE UNLESS COUNTER MEASURES WERE
TAKEN.  THE EVIL EFFECT OF SUCH WARTIME EXCESSIVE PROFIT ON THE MORALE
OF THE FIGHTING FORCES AND THE CIVILIAN POPULATION, AS WELL AS THE
UNNECESSARY FINANCIAL BURDEN UPON THE GOVERNMENT, COULD NOT BE
IGNORED.  THE EXAMPLE OF THE LAST WAR WAS STILL FRESH.  MANY WAR
CONTRACTORS REALIZED THE DANGERS AND INEQUITIES RESULTING FROM SUCH
EXCESSIVE PROFIT, AND SOME OF THEM MADE REFUNDS OF EXCESSIVE PROFITS OR
VOLUNTARILY REDUCED THEIR PRICES.  IN THE SPRING OF 1942, THE WAR
DEPARTMENT DEVELOPED COST ANALYSIS UNITS TO CHECK, SO FAR AS
PRACTICABLE, ON PRODUCTION COSTS, AND SET UP A PRICE ADJUSTMENT BOARD
TO NEGOTIATE WITH CONTRACTORS FOR VOLUNTARY PRICE REDUCTIONS AND
REFUNDS OF PAST PAYMENTS.  TENTATIVE POLICIES AS TO WHAT PROFITS WERE
EXCESSIVE WERE ESTABLISHED AND MEETINGS WITH CONTRACTORS HAD.  AT THE
SAME TIME, THERE CAME INTO USE CONTRACT CLAUSES PROVIDING FOR THE
RENEGOTIATION OR REDETERMINATION OF CONTRACT PRICES AFTER AN INITIAL
PERIOD OF PRODUCTION HAD LAID A BASIS FOR THE PROPER ESTIMATION OF
COSTS.  WE HOPED THAT THESE MEANS WOULD KEEP INCENTIVES TO EFFICIENCY
ALIVE AND AT THE SAME TIME WOULD TEND TO ELIMINATE UNDUE PROFITS SUCH
AS WERE THEN COMING TO LIGHT. 

"8.  THE CONGRESS APPARENTLY FELT, HOWEVER, THAT THESE CONTRACTUAL
MEASURES, RESTING AS THEY DID UPON THE VOLUNTARY COOPERATION OF A
RELATIVELY SMALL NUMBER OF WAR CONTRACTORS, DID NOT PROVIDE ENOUGH
CERTAINTY THAT EXCESSIVE PROFITS WOULD BE ELIMINATED.  THE VINSON
TRAMMEL ACT, LIMITING PROFITS ON AIRCRAFT AND SHIP CONSTRUCTION, HAD
BEEN REPEALED IN 1940, BUT AN EFFORT WAS MADE TO REVIVE IT.  IN MARCH,
1942, THE WAR DEPARTMENT AND THE WAR PRODUCTION BOARD OPPOSED SUCH
LEGISLATION ON THE GROUND THAT A FLAT PERCENTAGE PROFIT LIMITATION
WOULD IMPEDE PRODUCTION AND WOULD BE UNFAIR TO MANY CONTRACTORS AND TOO
GENEROUS TO OTHERS.  AFTER THE CASE AMENDMENT IMPOSING SUCH A FLAT
PERCENTAGE LIMITATION ON PROFITS FROM WAR CONTRACTS HAD BEEN ADOPTED BY
THE HOUSE OF REPRESENTATIVES LATE IN MARCH, 1942, THE ARMED SERVICES
AND THE WAR PRODUCTION BOARD OFFERED A SUBSTITUTE PROPOSAL GIVING
STATUTORY AUTHORITY TO THE PROCESS OF VOLUNTARY RENEGOTIATION WHICH HAD
BEEN DEVELOPING.  CONGRESS ADOPTED THE PRINCIPLE OF RENEGOTIATION WITH
WHICH THE ARMED SERVICES WERE IN ACCORD (RATHER THAN THE PRINCIPLE OF A
FLAT PERCENTAGE LIMITATION OF PROFITS), AND IT ALSO ENDOWED THE
PROCURING AGENCIES WITH POWER TO DETERMINE EXCESSIVE PROFITS WHEN NO
BILATERAL AGREEMENT COULD BE REACHED WITH THE CONTRACTOR.  I BELIEVE
THAT THIS ADDITION BY THE CONGRESS OF THE POWER OF UNILATERAL ACTION
WAS A WISE AND A NECESSARY ONE, AND THAT WITHOUT IT RENEGOTIATION WOULD
NOT HAVE ACCOMPLISHED ANYTHING LIKE THE RESULTS THAT HAVE BEEN
ACHIEVED. 

     .         .      .         .         . 

"12....  SOME CONCEPTION OF THE VAST SCOPE OF THE PROCUREMENT
ACTIVITY OF THE ARMED SERVICES AFTER THE ATTACK ON PEARL HARBOR CAN BE
GAINED FROM THE FACT THAT THE TOTAL EXPENDITURES OF THE WAR AND NAVY
DEPARTMENTS FOR THE ONE FISCAL YEAR ENDING JUNE 30,
1942($22,905,000,000) CONSIDERABLY EXCEEDED THE TOTAL MILITARY AND
NAVAL EXPENDITURES OF THE GOVERNMENT FROM 1789 THROUGH THE END OF WORLD
WAR I."  AFFIDAVIT OF ROBERT P. PATTERSON, UNDER SECRETARY OF WAR,
SWORN TO AUGUST 3, 1945. 

FN8  SEE NOTE 1, SUPRA. 

FN9  MCKINLEY V. UNITED STATES, 249 U.S. 397(REGULATIONS OF LOCAL
ACTIVITIES NEAR FEDERAL MILITARY STATIONS); NORTHERN PACIFIC R. CO. V.
NORTH DAKOTA, 250 U.S. 135(SEIZURE AND OPERATION OF RAILROADS);
HAMILTON V. KENTUCKY DISTILLERIES AND W. CO., 251 U.S. 146(LOCAL LIQUOR
TRAFFIC); CENTRAL UNION TRUST CO. V. GARVAN, 254 U.S. 554(SEIZURE OF
ENEMY PROPERTY); HIRABAYASHI V. UNITED STATES, 320 U.S. 81(CURFEW
REGULATIONS); YAKUS V. UNITED STATES, 321 U.S. 414(EMERGENCY PRICE
CONTROL ACT); BOWLES V. WILLINGHAM, 321 U.S. 503(RENT CONTROL); AND
KOREMATSU V. UNITED STATES, 323 U.S. 214(EXCLUSION OF CIVILIANS FROM
WEST COAST MILITARY AREA). 

IN HIRABAYASHI V. UNITED STATES, SUPRA, THIS COURT SAID (P. 93): 

"THE WAR POWER OF THE NATIONAL GOVERNMENT IS 'THE POWER TO WAGE WAR
SUCCESSFULLY.'  SEE CHARLES EVANS HUGHES, WAR POWERS UNDER THE
CONSTITUTION, 42 A.B.A. REP. 232, 238.  IT EXTENDS TO EVERY MATTER AND
ACTIVITY SO RELATED TO WAR AS SUBSTANTIALLY TO AFFECT ITS CONDUCT AND
PROGRESS.  THE POWER IS NOT RESTRICTED TO THE WINNING OF VICTORIES IN
THE FIELD AND THE REPULSE OF ENEMY FORCES....  SINCE THE CONSTITUTION
COMMITS TO THE EXECUTIVE AND TO CONGRESS THE EXERCISE OF THE WAR POWER
IN ALL THE VICISSITUDES AND CONDITIONS OF WARFARE, IT HAS NECESSARILY
GIVEN THEM WIDE SCOPE FOR THE EXERCISE OF JUDGMENT AND DISCRETION IN
DETERMINING THE NATURE AND EXTENT OF THE THREATENED INJURY OR DANGER
AND IN THE SELECTION OF THE MEANS FOR RESISTING IT....  WHERE, AS THEY
DID HERE, THE CONDITIONS CALL FOR THE EXERCISE OF JUDGMENT AND
DISCRETION AND FOR THE CHOICE OF MEANS BY THOSE BRANCHES OF THE
GOVERNMENT ON WHICH THE CONSTITUTION HAS PLACED THE RESPONSIBILITY OF
WAR-MAKING, IT IS NOT FOR ANY COURT TO SIT IN REVIEW OF THE WISDOM OF
THEIR ACTION OR SUBSTITUTE ITS JUDGMENT FOR THEIRS." 

FN10  "20.  AT THE BEGINNING OF THE LIMITED EMERGENCY IN 1939, THE
ONLY APPLICABLE STATUTORY LIMITS ON PROFITS FROM THE SALE OF MILITARY
OR NAVAL SUPPLIES WERE CONTAINED IN THE VINSON-TRAMMEL ACT OF MARCH 27,
1934, AS AMENDED (RELATING TO NAVAL VESSELS) AND THE MERCHANT MARINE
ACT OF 1936, AS AMENDED (RELATING TO CONSTRUCTION OF MERCHANT SHIPS). 
THE ACT OF APRIL 3, 1939, EXTENDED PERCENTAGE PROFIT LIMITATION TO
COVER ARMY AIRCRAFT CONTRACTS.  THE PERCENTAGE OF PROFIT ALLOWED TO
CONTRACTORS WAS LOWERED TO APPROXIMATELY 8% BY THE ACT OF JUNE 28,
1940, BUT THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT,
1941, ENACTED SEPTEMBER 9, 1940, PROVIDED THAT AS TO AIRCRAFT THE OLD
LIMITATION OF 12% WAS TO PREVAIL. 

"21....  ACCORDINGLY, THE SECOND REVENUE ACT OF 1940, CONTAINING THE
EXCESS PROFITS TAX, SUSPENDED THE PROFIT LIMITATION STATUTES APPLICABLE
TO ARMY AND NAVY CONTRACTS ENTERED INTO AFTER DECEMBER 31, 1939, OR
UNCOMPLETED ON THAT DATE BY CONTRACTORS AND SUBCONTRACTORS SUBJECT TO
THE NEW EXCESS PROFITS TAX.  THEREAFTER, UNTIL THE PASSAGE OF THE SIXTH
SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT OF 1942, THE ONLY
STATUTORY PROVISIONS CONCERNING WAR OR DEFENSE CONTRACTS WERE THOSE OF
THE EXCESS PROFITS TAX."  AFFIDAVIT OF ROBERT P. PATTERSON, UNDER
SECRETARY OF WAR, SWORN TO AUGUST 3, 1945. 

AND SEE HENSEL AND MCCLUNG, PROFIT LIMITATION CONTROLS PRIOR TO THE
PRESENT WAR, 10 LAW & CONTEMP.  PROB.  187(1943-1944). 

FN11  THE FOLLOWING SIGNIFICANT CONGRESSIONAL HEARINGS WERE PUBLICLY
HELD: 

HEARINGS BEFORE THE SENATE COMMITTEE ON FINANCE ON SEC. 403 OF PUB.
L. NO. 528, 77TH CONG., 2D SESS. (SEPTEMBER 22 AND 23, 1942); 

HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON FINANCE ON
SEC. 403 OF PUB. L. NO. 528, 77TH CONG., 2D SESS. (SEPTEMBER 29 AND 30,
1942); 

HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
APPROPRIATIONS ON MIL. EST.  APP.  BILL FOR 1944, 78TH CONG., 1ST SESS.
483-518, 571-580(JUNE 10, 1943); 

HEARINGS BEFORE THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON
APPROPRIATIONS ON H.R. 2996(MIL.  EST.  APP. BILL FOR 1944), 78TH
CONG., 1ST SESS. 22, 30-33, 125-138, 150-151(1943); 

HEARINGS BEFORE THE HOUSE COMMITTEE ON NAVAL AFFAIRS, PURSUANT TO
H.R. RES. 30, VOL. 2, 78TH CONG., 1ST SESS. (JUNE 10-30, 1943); 

HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS ON H.R. 2324,
2698 AND 3015(RENEGOTIATION OF WAR CONTRACTS), 78TH CONG., 1ST SESS.
(SEPTEMBER 9-23, 1943); 

HEARINGS BEFORE THE SENATE COMMITTEE ON FINANCE ON H.R. 3687(REVENUE
ACT OF 1943), 78TH CONG., 1ST SESS. 49, 388-392, 402-424, 443-452, 465,
469, 598-601, 620-629, 669-684, 690-696, 925-926, 987-1111, 1121
1132(NOVEMBER 29-DECEMBER 15, 1943); 

HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS ON H.R.
2628(EXTENSION OF TERMINATION DATE OF RENEGOTIATION ACT), 79TH CONG.,
1ST SESS. (APRIL 12-16, 1945). 

IN ADDITION, PRIVATE HEARINGS AND INTERVIEWS APPEAR TO HAVE BEEN HAD
BY CONGRESSIONAL COMMITTEES. 

THE FOLLOWING MAJOR REPORTS ON THE OPERATION OF THE RENEGOTIATION ACT
WERE ISSUED BY CONGRESSIONAL COMMITTEES: 

H.R. REP. NO. 733, 78TH CONG., 1ST SESS. (OCTOBER 7, 1943).  REPORT
OF THE COMMITTEE ON NAVAL AFFAIRS, PURSUANT TO H.R. RES.
30(RENEGOTIATION OF WAR CONTRACTS); 

SEN. REP. NO. 10, PART 5, 78TH CONG., 1ST SESS. (MARCH 60, 1943). 
ADDITIONAL REPORT OF THE SPECIAL SENATE COMMITTEE INVESTIGATING THE
NATIONAL DEFENSE PROGRAM (RENEGOTIATION OF WAR CONTRACTS);    SEN. REP.
NO. 10, PART 16, 78TH CONG., 2D SESS. 40-64, 192-199(MARCH 4, 1944). 
ADDITIONAL REPORT OF THE SPECIAL SENATE COMMITTEE INVESTIGATING THE
NATIONAL DEFENSE PROGRAM (THIRD ANNUAL REPORT); 

H.R. REP. NO. 871, 78TH CONG., 1ST SESS. 75-90(NOVEMBER 18, 1943), ON
H.R. 3687(REVENUE BILL OF 1943); 

SEN. REP. NO. 627, 78TH CONG., 1ST SESS. 98-119(DECEMBER 22, 1943),
ON H.R. 3687(REVENUE BILL OF 1943); 

H.R. REP. NO. 1079, 78TH CONG., 2D SESS. 34-39, 76-88(FEBRUARY 4,
1944), ON H.R. 3687(CONFERENCE REPORT ON REVENUE ACT OF 1943). 

SEE ALSO: 

RENEGOTIATION OF WAR CONTRACTS - LAW, DEBATES AND OTHER LEGISLATIVE
MATERIALS - COMPILED FOR THE USE OF THE HOUSE COMMITTEE ON WAYS AND
MEANS, 78TH CONG., 1ST SESS. (1943); 

DATA ON RENEGOTIATION OF CONTRACTS, SENATE COMMITTEE ON FINANCE
(DECEMBER 9, 1943). 

FN12  IN ITS BRIEF FILED JOINTLY IN THE PRESENT CASES THE GOVERNMENT
HAS SUBMITTED THE FOLLOWING STATEMENT AS TO THE RESULTS OF
RENEGOTIATION: 

"11.  THE RESULTS OF RENEGOTIATION:  WE ARE ADVISED BY THE WAR
CONTRACTS PRICE ADJUSTMENT BOARD THAT AS OF JUNE 30, 1947, 118,101
CONTRACTORS HAD BEEN ASSIGNED FOR RENEGOTIATION WITH RESPECT TO 1942
THROUGH 1946 FISCAL YEARS, AND CONTRACTS AGGREGATING OVER
$190,000,000,000(EXCLUDING CONTRACTORS ELIMINATED BECAUSE OF EXEMPTIONS
OR NON-COVERAGE) WERE SUBJECTED TO RENEGOTIATION.  OF THE TOTAL
ASSIGNMENTS, 115,535(OR 97.8%) WERE COMPLETED AS OF JUNE 30, 1947.  OUT
OF THE 115,535 COMPLETED ASSIGNMENTS, 85,037(OR 73.6%) RESULTED IN
CANCELLATIONS OR CLEARANCES INDICATING THAT NO EXCESSIVE PROFITS HAD
BEEN MADE OR THAT THE CONTRACTOR WAS FOUND TO BE EXEMPT FROM
RENEGOTIATION; 28,889(OR 25%) RESULTED IN BILATERAL REFUND AGREEMENTS
BETWEEN THE GOVERNMENT AND THE CONTRACTOR; 1,609(OR 1.4%) RESULTED IN
UNILATERAL DETERMINATIONS BY THE DEPARTMENTS OR THE WAR CONTRACTS PRICE
ADJUSTMENT BOARD.  OF THE 30,498 ASSIGNMENTS INVOLVING DETERMINATIONS
OF EXCESSIVE PROFITS, 1,609(OR 5.28%) WERE UNILATERAL DETERMINATIONS
AND 28,889(OR 94.72%) WERE BILATERAL. 

"ALSO AS OF JUNE 30, 1947, THE GROSS RECOVERIES THROUGH RENEGOTIATION
AMOUNTED TO SOME $10,434,637,000, AND THE ESTIMATED NET RECOVERY (AFTER
DEDUCTION OF THE FEDERAL TAX CREDIT ALLOWED CONTRACTORS ON
RENEGOTIATION REFUNDS) AMOUNTED TO $3,130,391,000.  OF THE TOTAL GROSS
RECOVERIES OF $10,434,637,000, SOME $895,493,000(OR 8.58%) WERE
INVOLVED IN UNILATERAL DETERMINATIONS AND THE REST WERE RECOVERED BY
VOLUNTARY AGREEMENT." 

FN13  SEE NOTE 1, SUPRA. 

FN14  FOR RELEVANT EXCERPTS FROM ITS TEXT, SEE APPENDIX I, INFRA, P.
793. 

FN15  FOR RELEVANT EXCERPTS FROM ITS TEXT, SEE APPENDIX II, INFRA, P.
795. 

FN16  FOR RELEVANT EXCERPTS FROM ITS TEXT, SEE APPENDIX III, INFRA,
P. 798. 

FN17  SEE SEC. 403(L) IN NOTE 1, SUPRA. 

FN18  IN THE HOUSE OF REPRESENTATIVES, THE CASE AMENDMENT, PROVIDING
IN EFFECT A LIMITATION OF 6% ON WAR PROFITS WAS ADOPTED WITHOUT
DEBATE.  88 CONG. REC. 3139-3140(1942).  BEFORE THE SENATE SUBCOMMITTEE
ON APPROPRIATIONS STRONG OBJECTION WAS MADE TO THIS PROVISION BY THE
REPRESENTATIVES OF THE GOVERNMENT AND ITS OMISSION WAS RECOMMENDED BY
THE SENATE COMMITTEE ON APPROPRIATIONS.  AFTER AMPLE CONSIDERATION IT
WAS OMITTED IN THE ACT AS PASSED.  88 CONG. REC. 3378-3405; 3582-3599;
3647-3662; 3666(1942), AND SEE H.R. REP. NO. 2030, 77TH CONG., 2D SESS.
8-10(1942). 

FN19  HEARINGS BEFORE THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON
FINANCE ON PUB. L. NO. 528, 77TH CONG., 2D SESS. 16-28(SEPTEMBER 29,
1942). 

FN20  SEE APPENDIX III, INFRA, P. 798. 

FN21  SEE APPENDIX III, INFRA, P. 798. 

FN22  SEE APPENDIX I, INFRA, P. 793. 

FN23  SEE APPENDIX I, INFRA, P. 793. 

FN24  SEE APPENDIX I, INFRA, P. 794. 

FN25  SEE APPENDIX II, INFRA, P. 795. 

FN26  PUBLISHED AS PART OF THE MATERIAL SUBMITTED BY UNDER SECRETARY
OF WAR ROBERT P. PATTERSON AT THE HEARINGS ON THE RENEGOTIATION OF
CONTRACTS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON FINANCE ON
SEC. 403 OF PUB. L. NO. 528, 77TH CONG., 2D SESS. 28, 34-43(SEPTEMBER
29, 1942). 

FN27  SEE APPENDIX II, INFRA, P. 796. 

FN28  SEE APPENDIX II, INFRA, P. 797. 

FN29  SEE APPENDIX II, INFRA, P. 798. 

FN30  SEE HEARINGS BEFORE THE HOUSE COMMITTEE ON NAVAL AFFAIRS, 78TH
CONG., 1ST SESS., VOL. 2, PP. 469, ET SEQ., 1025-1039, ESPECIALLY 1028
1029(1943). 

FN31  "THE QUESTION REMAINS:  WHAT MAY BE DEEMED TO BE THE FORCE AND
EFFECT IN TIME OF WAR OF THE RESTRICTIVE PROVISIONS CONTAINED IN THE
CONSTITUTION WITH RESPECT TO THE EXERCISE OF FEDERAL AUTHORITY?  IT IS
MANIFEST, AT ONCE, THAT THE GREAT ORGANS OF THE NATIONAL GOVERNMENT
RETAIN AND PERFORM THEIR FUNCTIONS AS THE CONSTITUTION PRESCRIBES. 
SENATORS AND REPRESENTATIVES ARE QUALIFIED AND CHOSEN AS PROVIDED IN
THE CONSTITUTION AND THE LEGISLATIVE POWER VESTED IN THE CONGRESS MUST
BE EXERCISED IN THE REQUIRED MANNER.  THE PRESIDENT IS STILL THE
CONSTITUTIONAL EXECUTIVE, ELECTED IN THE MANNER PROVIDED AND SUBJECT TO
THE RESTRAINTS IMPOSED UPON HIS OFFICE.  THE JUDICIAL POWER OF THE
UNITED STATES CONTINUES TO BE VESTED IN ONE SUPREME COURT AND SUCH
INFERIOR COURTS AS CONGRESS HAS ORDAINED.  AGAIN, APART FROM THE
PROVISIONS FIXING THE FRAMEWORK OF THE GOVERNMENT, THERE ARE
LIMITATIONS WHICH BY REASON OF THEIR EXPRESS TERMS OR BY NECESSARY
IMPLICATION MUST BE REGARDED AS APPLICABLE AS WELL IN WAR AS IN PEACE. 
THUS ONE OF THE EXPRESSED OBJECTS OF THE POWER GRANTED TO CONGRESS 'TO
LAY AND COLLECT TAXES, DUTIES, IMPOSTS, AND EXCISES' IS TO 'PROVIDE FOR
THE COMMON DEFENCE,' AND IT CANNOT BE DOUBTED THAT TAXES LAID FOR THIS
PURPOSE, THAT IS, TO SUPPORT THE ARMY AND NAVY AND TO PROVIDE THE MEANS
FOR MILITARY OPERATIONS, MUST BE LAID SUBJECT TO THE CONSTITUTIONAL
RESTRICTIONS."  ADDRESS BY HONORABLE CHARLES E. HUGHES, OF NEW YORK, ON
"WAR POWERS UNDER THE CONSTITUTION," SEPTEMBER 5, 1917, 42 A.B.A. REP.
232, 241-242. 

FN32  BILLINGS V. UNITED STATES, 232 U.S. 261, 282. 

FN33  BRUSHABER V. UNION PACIFIC R. CO., 240 U.S. 1, 24. 

FN34  "WE THE PEOPLE OF THE UNITED STATES, IN ORDER TO FORM A MORE
PERFECT UNION, ESTABLISH JUSTICE, INSURE DOMESTIC TRANQUILITY, PROVIDE
FOR THE COMMON DEFENCE, PROMOTE THE GENERAL WELFARE, AND SECURE THE
BLESSINGS OF LIBERTY TO OURSELVES AND OUR POSTERITY, DO ORDAIN AND
ESTABLISH THIS CONSTITUTION FOR THE UNITED STATES OF AMERICA."  U.S.
CONST. PREAMBLE. 

FN35  SEE NOTES 19 AND 26, SUPRA. 

FN36  SEE NOTE 30, SUPRA. 

FN37  EXCESSIVE MEANS:  "CHARACTERIZED BY, OR EXHIBITING, EXCESS; AS:
A EXCEEDING WHAT IS USUAL OR PROPER; OVERMUCH.  B GREATER THAN THE
USUAL AMOUNT OR DEGREE; EXCEPTIONAL; VERY GREAT."  WEBSTER'S NEW
INTERNATIONAL DICTIONARY, 2D ED. (1938). 

FN38  SEE APPENDIX I, INFRA, P. 794. 

FN39  SEE APPENDIX III, INFRA, P. 799. 

FN40  SEE APPENDIX III, INFRA, P. 801. 

FN41  SEE APPENDIX III, INFRA, P. 801. 

FN42  SEE APPENDIX III, INFRA, P. 800. 

FN43  SEE APPENDIX III, INFRA, P. 801. 

MR. JUSTICE MURPHY CONCURS IN THE RESULT IN THESE CASES. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT IN THE POWNALL CASE, BUT
DISSENTS IN THE LICHTER AND ALEXANDER CASES. 

                              APPENDIX. 

                                  I. 

EXCERPTS FROM THE SO-CALLED ORIGINAL OR FIRST RENEGOTIATION ACT, SEC.
403, SIXTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1942,
APPROVED APRIL 28, 1942, C. 247, 56 STAT. 226, 245-246. 

"(A) ...  FOR THE PURPOSES OF SUBSECTIONS (D) AND (E) OF THIS
'CONTRACTOR' INCLUDES A SUBCONTRACTOR. 

"(B)  THE SECRETARY OF EACH DEPARTMENT IS AUTHORIZED AND DIRECTED TO
INSERT IN ANY CONTRACT FOR AN AMOUNT IN EXCESS OF $100,000 HEREAFTER
MADE BY SUCH DEPARTMENT (1) A PROVISION FOR THE RENEGOTIATION OF THE
CONTRACT PRICE AT A PERIOD OR PERIODS WHEN, IN THE JUDGMENT OF THE
SECRETARY, THE PROFITS CAN BE DETERMINED WITH REASONABLE CERTAINTY; (2)
A PROVISION FOR THE RETENTION BY THE UNITED STATES OR THE REPAYMENT TO
THE UNITED STATES OF (A) ANY AMOUNT OF THE CONTRACT PRICE WHICH IS
FOUND AS A RESULT OF SUCH RENEGOTIATION TO REPRESENT EXCESSIVE PROFITS
AND (B) AN AMOUNT OF THE CONTRACT PRICE EQUAL TO THE AMOUNT OF THE
REDUCTION IN THE CONTRACT PRICE OF ANY SUBCONTRACT UNDER SUCH CONTRACT
PURSUANT TO THE RENEGOTIATION OF SUCH SUBCONTRACT AS PROVIDED IN CLAUSE
(3) OF THIS SUBSECTION; AND (3) A PROVISION REQUIRING THE CONTRACTOR TO
INSERT IN EACH SUBCONTRACT FOR AN AMOUNT IN EXCESS OF $100,000 MADE BY
HIM UNDER SUCH CONTRACT (A) A PROVISION FOR THE RENEGOTIATION BY SUCH
SECRETARY AND THE SUBCONTRACTOR OF THE CONTRACT PRICE OF THE
SUBCONTRACT AT A PERIOD OR PERIODS WHEN, IN THE JUDGMENT OF THE
SECRETARY, THE PROFITS CAN BE DETERMINED WITH REASONABLE CERTAINTY, (B)
A PROVISION FOR THE RETENTION BY THE UNITED STATES OR THE REPAYMENT TO
THE UNITED STATES OF ANY AMOUNT OF THE CONTRACT PRICE OF THE
SUBCONTRACT WHICH IS FOUND AS A RESULT OF SUCH RENEGOTIATION, TO
REPRESENT EXCESSIVE PROFITS, AND (C) A PROVISION FOR RELIEVING THE
CONTRACTOR FROM ANY LIABILITY TO THE SUBCONTRACTOR ON ACCOUNT OF ANY
AMOUNT SO RETAINED BY OR REPAID TO THE UNITED STATES. 

"(C)  THE SECRETARY OF EACH DEPARTMENT IS AUTHORIZED AND DIRECTED,
WHENEVER IN HIS OPINION EXCESSIVE PROFITS HAVE BEEN REALIZED, OR ARE
LIKELY TO BE REALIZED, FROM ANY CONTRACT WITH SUCH DEPARTMENT OR FROM
ANY SUBCONTRACT THEREUNDER, (1) TO REQUIRE THE CONTRACTOR OR
SUBCONTRACTOR TO RENEGOTIATE THE CONTRACT PRICE, (2) TO WITHHOLD FROM
THE CONTRACTOR OR SUBCONTRACTOR ANY AMOUNT OF THE CONTRACT PRICE WHICH
IS FOUND AS A RESULT OF SUCH RENEGOTIATION TO REPRESENT EXCESSIVE
PROFITS, AND (3) IN CASE ANY AMOUNT OF THE CONTRACT PRICE FOUND AS A
RESULT OF SUCH RENEGOTIATION TO REPRESENT EXCESSIVE PROFITS SHALL HAVE
BEEN PAID TO THE CONTRACTOR OR SUBCONTRACTOR, TO RECOVER SUCH AMOUNT
FROM SUCH CONTRACTOR OR SUBCONTRACTOR.  SUCH CONTRACTOR OR
SUBCONTRACTOR SHALL BE DEEMED TO BE INDEBTED TO THE UNITED STATES FOR
ANY AMOUNT WHICH SUCH SECRETARY IS AUTHORIZED TO RECOVER FROM SUCH
CONTRACTOR OR SUBCONTRACTOR UNDER THIS SUBSECTION, AND SUCH SECRETARY
MAY BRING ACTIONS IN THE APPROPRIATE COURTS OF THE UNITED STATES TO
RECOVER SUCH AMOUNT ON BEHALF OF THE UNITED STATES.  ALL AMOUNTS
RECOVERED UNDER THIS SUBSECTION SHALL BE COVERED INTO THE TREASURY AS
MISCELLANEOUS RECEIPTS.  THIS SUBSECTION SHALL BE APPLICABLE TO ALL
CONTRACTS AND SUBCONTRACTS HEREAFTER MADE AND TO ALL CONTRACTS AND
SUBCONTRACTS HERETOFORE MADE, WHETHER OR NOT SUCH CONTRACTS OR
SUBCONTRACTS CONTAIN A RENEGOTIATION OR RECAPTURE CLAUSE, PROVIDED THAT
FINAL PAYMENT PURSUANT TO SUCH CONTRACT OR SUBCONTRACT HAS NOT BEEN
MADE PRIOR TO THE DATE OF ENACTMENT OF THIS ACT. 

"(D)  IN RENEGOTIATING A CONTRACT PRICE OR DETERMINING EXCESSIVE
PROFITS FOR THE PURPOSES OF THIS SECTION, THE SECRETARIES OF THE
RESPECTIVE DEPARTMENTS SHALL NOT MAKE ANY ALLOWANCE FOR ANY SALARIES,
BONUSES, OR OTHER COMPENSATION PAID BY A CONTRACTOR TO ITS OFFICERS OR
EMPLOYEES IN EXCESS OF A REASONABLE AMOUNT, NOR SHALL THEY MAKE
ALLOWANCE FOR ANY EXCESSIVE RESERVES SET UP BY THE CONTRACTOR OR FOR
ANY COSTS INCURRED BY THE CONTRACTOR WHICH ARE EXCESSIVE AND
UNREASONABLE.  FOR THE PURPOSE OF ASCERTAINING WHETHER SUCH
UNREASONABLE COMPENSATION HAS BEEN OR IS BEING PAID, OR WHETHER SUCH
EXCESSIVE RESERVES HAVE BEEN OR ARE BEING SET UP, OR WHETHER ANY
EXCESSIVE AND UNREASONABLE COSTS HAVE BEEN OR ARE BEING INCURRED, EACH
SUCH SECRETARY SHALL HAVE THE SAME POWERS WITH RESPECT TO ANY SUCH
CONTRACTOR THAT AN AGENCY DESIGNATED BY THE PRESIDENT TO EXERCISE THE
POWERS CONFERRED BY TITLE XIII OF THE SECOND WAR POWERS ACT, 1942, HAS
WITH RESPECT TO ANY CONTRACTOR TO WHOM SUCH TITLE IS APPLICABLE.  ... 

"(E)  IN ADDITION TO THE POWERS CONFERRED BY EXISTING LAW, THE
SECRETARY OF EACH DEPARTMENT SHALL HAVE THE RIGHT TO DEMAND OF ANY
CONTRACTOR WHO HOLDS CONTRACTS WITH RESPECT TO WHICH THE PROVISIONS OF
THIS SECTION ARE APPLICABLE IN AN AGGREGATE AMOUNT IN EXCESS OF
$100,000, STATEMENTS OF ACTUAL COSTS OF PRODUCTION AND SUCH OTHER
FINANCIAL STATEMENTS, AT SUCH TIMES AND IN SUCH FORM AND DETAIL, AS
SUCH SECRETARY MAY REQUIRE.  ...  " 

    .         .         .         .         . 

56 STAT. 245. 

                                 II. 

EXCERPTS FROM TITLE VIII, RENEGOTIATION OF WAR CONTRACTS, REVENUE ACT
OF 1942, APPROVED OCTOBER 21, 1942, C. 619, 56 STAT. 798, 982-985, 26
U.S.C.A. INTERNAL REVENUE ACTS BEGINNING 1940, REVENUE ACT OF 1942,
SEC. 801, P. 376. 

PARTICULARS, ALL EFFECTIVE AS OF APRIL 28, 1942.  AMONG THE AMENDMENTS
WERE CERTAIN ADDITIONS OR CHANGES CONTAINED IN SEC. 403(A), SEC. 403(C)
AND SEC. 403(I) AND READING AS FOLLOWS: 

"SEC. 801.  RENEGOTIATION OF WAR CONTRACTS. 

"(A)  SUBSECTIONS (A), (B), AND (C) OF SECTION 403 OF THE SIXTH
SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT (PUBLIC 528, 77TH
CONG., 2D SESS.), ARE AMENDED TO READ AS FOLLOWS: 

"SEC. 403.  (A)  FOR THE PURPOSES OF THIS SECTION - 

     .         .         .         .         . 

"(4)  THE TERM 'EXCESSIVE PROFITS' MEANS ANY AMOUNT OF A CONTRACT OR
SUBCONTRACT PRICE WHICH IS FOUND AS A RESULT OF RENEGOTIATION TO
REPRESENT EXCESSIVE PROFITS. 

"(5)  THE TERM 'SUBCONTRACT' MEANS ANY PURCHASE ORDER OR AGREEMENT TO
PERFORM ALL OR ANY PART OF THE WORK, OR TO MAKE OR FURNISH ANY ARTICLE,
REQUIRED FOR THE PERFORMANCE OF ANOTHER CONTRACT OR SUBCONTRACT.  THE
TERM 'ARTICLE' INCLUDES ANY MATERIAL, PART, ASSEMBLY, MACHINERY,
EQUIPMENT, OR OTHER PERSONAL PROPERTY.    "FOR THE PURPOSES OF
SUBSECTIONS (D) AND (E) OF THIS SECTION, THE TERM 'CONTRACT' INCLUDES A
SUBCONTRACT AND THE TERM 'CONTRACTOR' INCLUDES A SUBCONTRACTOR. 

     .         .  .         .         . 

"(C)(1)  WHENEVER, IN THE OPINION OF THE SECRETARY OF A DEPARTMENT,
THE PROFITS REALIZED OR LIKELY TO BE REALIZED FROM ANY CONTRACT WITH
SUCH DEPARTMENT, OR FROM ANY SUBCONTRACT THEREUNDER WHETHER OR NOT MADE
BY THE CONTRACTOR, MAY BE EXCESSIVE, THE SECRETARY IS AUTHORIZED AND
DIRECTED TO REQUIRE THE CONTRACTOR OR SUBCONTRACTOR TO RENEGOTIATE THE
CONTRACT PRICE.  WHEN THE CONTRACTOR OR SUBCONTRACTOR HOLDS TWO OR MORE
CONTRACTS OR SUBCONTRACTS THE SECRETARY IN HIS DISCRETION, MAY
RENEGOTIATE TO ELIMINATE EXCESSIVE PROFITS ON SOME OR ALL OF SUCH
CONTRACTS AND SUBCONTRACTS AS A GROUP WITHOUT SEPARATELY RENEGOTIATING
THE CONTRACT PRICE OF EACH CONTRACT OR SUBCONTRACT. 

"(2)  UPON RENEGOTIATION, THE SECRETARY IS AUTHORIZED AND DIRECTED TO
ELIMINATE ANY EXCESSIVE PROFITS UNDER SUCH CONTRACT OR SUBCONTRACT (I)
BY REDUCTIONS IN THE CONTRACT PRICE OF THE CONTRACT OR SUBCONTRACT, OR
BY OTHER REVISION IN ITS TERMS; OR (II) BY WITHHOLDING, FROM AMOUNTS
OTHERWISE DUE TO THE CONTRACTOR OR SUBCONTRACTOR, ANY AMOUNT OF SUCH
EXCESSIVE PROFITS; OR (III) BY DIRECTING A CONTRACTOR TO WITHHOLD FOR
THE ACCOUNT OF THE UNITED STATES, FROM AMOUNTS OTHERWISE DUE TO THE
SUBCONTRACTOR, ANY AMOUNT OF SUCH EXCESSIVE PROFITS UNDER THE
SUBCONTRACT; OR (IV) BY RECOVERY FROM THE CONTRACTOR OR SUBCONTRACTOR,
THROUGH REPAYMENT, CREDIT OR SUIT, OF ANY AMOUNT OF SUCH EXCESSIVE
PROFITS ACTUALLY PAID TO HIM; OR (V) BY ANY COMBINATION OF THESE
METHODS, AS THE SECRETARY DEEMS DESIRABLE.  THE SECRETARY MAY BRING
ACTIONS ON BEHALF OF THE UNITED STATES IN THE APPROPRIATE COURTS OF THE
UNITED STATES TO RECOVER FROM SUCH CONTRACTOR OR SUBCONTRACTOR, ANY
AMOUNT OF SUCH EXCESSIVE PROFITS ACTUALLY PAID TO HIM AND NOT WITHHELD
OR ELIMINATED BY SOME OTHER METHOD UNDER THIS SUBSECTION.  THE SURETY
UNDER A CONTRACT OR SUBCONTRACT SHALL NOT BE LIABLE FOR THE REPAYMENT
OF ANY EXCESSIVE PROFITS THEREON.  ALL MONEY RECOVERED BY WAY OF
REPAYMENT OR SUIT UNDER THIS SUBSECTION SHALL BE COVERED INTO THE
TREASURY AS MISCELLANEOUS RECEIPTS. 

"(3)  IN DETERMINING THE EXCESSIVENESS OF PROFITS REALIZED OR LIKELY
TO BE REALIZED FROM ANY CONTRACT OR SUBCONTRACT, THE SECRETARY SHALL
RECOGNIZE THE PROPERLY APPLICABLE EXCLUSIONS AND DEDUCTIONS OF THE
CHARACTER WHICH THE CONTRACTOR OR SUBCONTRACTOR IS ALLOWED UNDER
CHAPTER 1 AND CHAPTER 2E OF THE INTERNAL REVENUE CODE.  IN DETERMINING
THE AMOUNT OF ANY EXCESSIVE PROFITS TO BE ELIMINATED HEREUNDER THE
SECRETARY SHALL ALLOW THE CONTRACTOR OR SUBCONTRACTOR CREDIT FOR
FEDERAL INCOME AND EXCESS PROFITS TAXES AS PROVIDED IN SECTION 3806 OF
THE INTERNAL REVENUE CODE. 

"(4)  UPON RENEGOTIATION PURSUANT TO THIS SECTION, THE SECRETARY MAY
MAKE SUCH FINAL OR OTHER AGREEMENTS WITH A CONTRACTOR OR SUBCONTRACTOR
FOR THE ELIMINATION OF EXCESSIVE PROFITS AND FOR THE DISCHARGE OF ANY
LIABILITY FOR EXCESSIVE PROFITS UNDER THIS SECTION, AS THE SECRETARY
DEEMS DESIRABLE.  SUCH AGREEMENTS MAY COVER SUCH PAST AND FUTURE PERIOD
OR PERIODS, MAY APPLY TO SUCH CONTRACT OR CONTRACTS OF THE CONTRACTOR
OR SUBCONTRACTOR, AND MAY CONTAIN SUCH TERMS AND CONDITIONS, AS THE
SECRETARY DEEMS ADVISABLE.  ... 

"(5)  ANY CONTRACTOR OR SUBCONTRACTOR WHO HOLDS CONTRACTS OR
SUBCONTRACTS, TO WHICH THE PROVISIONS OF THIS SECTION ARE APPLICABLE,
MAY FILE WITH THE SECRETARIES OF ALL THE DEPARTMENTS CONCERNED
STATEMENTS OF ACTUAL COSTS OF PRODUCTION AND SUCH OTHER FINANCIAL
STATEMENTS FOR ANY PRIOR FISCAL YEAR OR YEARS OF SUCH CONTRACTOR OR
SUBCONTRACTOR, IN SUCH FORM AND DETAIL, AS THE SECRETARIES SHALL
PRESCRIBE BY JOINT REGULATION.  WITHIN ONE YEAR AFTER THE FILING OF
SUCH STATEMENTS, OR WITHIN SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY
SUCH JOINT REGULATION, THE SECRETARY OF A DEPARTMENT MAY GIVE THE
CONTRACTOR OR SUBCONTRACTOR WRITTEN NOTICE, IN FORM AND MANNER TO BE
PRESCRIBED IN SUCH JOINT REGULATION, THAT THE SECRETARY IS OF THE
OPINION THAT THE PROFITS REALIZED FROM SOME OR ALL OF SUCH CONTRACTS OR
SUBCONTRACTS MAY BE EXCESSIVE, AND FIXING A DATE AND PLACE FOR AN
INITIAL CONFERENCE TO BE HELD WITHIN SIXTY DAYS THEREAFTER.  IF SUCH
NOTICE IS NOT GIVEN AND RENEGOTIATION COMMENCED BY THE SECRETARY WITHIN
SUCH SIXTY DAYS THE CONTRACTOR OR SUBCONTRACTOR SHALL NOT THEREAFTER BE
REQUIRED TO RENEGOTIATE TO ELIMINATE EXCESSIVE PROFITS REALIZED FROM
ANY SUCH CONTRACT OR SUBCONTRACT DURING SUCH FISCAL YEAR OR YEARS AND
ANY LIABILITIES OF THE CONTRACTOR OR SUBCONTRACTOR FOR EXCESSIVE
PROFITS REALIZED DURING SUCH PERIOD SHALL BE THEREBY DISCHARGED. 

"(6)  THIS SUBSECTION (C) SHALL BE APPLICABLE TO ALL CONTRACTS AND
SUBCONTRACTS HEREAFTER MADE AND TO ALL CONTRACTS AND SUBCONTRACTS
HERETOFORE MADE, WHETHER OR NOT SUCH CONTRACTS OR SUBCONTRACTS CONTAIN
A RENEGOTIATION OR RECAPTURE CLAUSE, UNLESS (I) FINAL PAYMENT PURSUANT
TO SUCH CONTRACT OR SUBCONTRACT WAS MADE PRIOR TO APRIL 28, 1942,  ...
" 

     .         .         .         .         . 

"(C)  (SEC. 801.)  SECTION 403 OF THE SIXTH SUPPLEMENTAL NATIONAL
DEFENSE APPROPRIATION ACT (PUBLIC 528, 77TH CONG., 2D SESS.), IS
AMENDED BY ADDING AT THE END THEREOF THE FOLLOWING SUBSECTIONS: 

"(I)  ... 

     .         .         .         .     . 

"(2)  THE SECRETARY OF A DEPARTMENT IS AUTHORIZED, IN HIS DISCRETION,
TO EXEMPT FROM SOME OR ALL OF THE PROVISIONS OF THIS SECTION - 

"(I)  ANY CONTRACT OR SUBCONTRACT TO BE PERFORMED OUTSIDE OF THE
TERRITORIAL LIMITS OF THE CONTINENTAL UNITED STATES OR IN ALASKA; 

"(II)  ANY CONTRACTS OR SUBCONTRACTS UNDER WHICH, IN THE OPINION OF
THE SECRETARY, THE PROFITS CAN BE DETERMINED WITH REASONABLE CERTAINTY
WHEN THE CONTRACT PRICE IS ESTABLISHED, SUCH AS CERTAIN CLASSES OF
AGREEMENTS FOR PERSONAL SERVICES, FOR THE PURCHASE OF REAL PROPERTY,
PERISHABLE GOODS, OR COMMODITIES THE MINIMUM PRICE FOR THE SALE OF
WHICH HAS BEEN FIXED BY A PUBLIC REGULATORY BODY, OF LEASES AND LICENSE
AGREEMENTS, AND OF AGREEMENTS WHERE THE PERIOD OF PERFORMANCE UNDER
SUCH CONTRACT OR SUBCONTRACT WILL NOT BE IN EXCESS OF THIRTY DAYS; AND 

"(III)  A PORTION OF ANY CONTRACT OR SUBCONTRACT OR PERFORMANCE
THEREUNDER DURING A SPECIFIED PERIOD OR PERIODS, IF IN THE OPINION OF
THE SECRETARY, THE PROVISIONS OF THE CONTRACT ARE OTHERWISE ADEQUATE TO
PREVENT EXCESSIVE PROFITS. 

"THE SECRETARY MAY SO EXEMPT CONTRACTS AND SUBCONTRACTS BOTH
INDIVIDUALLY AND BY GENERAL CLASSES OR TYPES." 

     .         .         .         .         . 

56 STAT. 982. 

                               III. 

EXCERPTS FROM THE SO-CALLED SECOND RENEGOTIATION ACT, TITLE VII,
RENEGOTIATION OF WAR CONTRACTS, PASSED NOTWITHSTANDING THE OBJECTIONS
OF THE PRESIDENT, FEBRUARY 25, 1944, C. 63, 58 STAT. 21, 78-92, 50
U.S.C. (SUPP. V, 1946) SEC. 1191; ALSO 26 U.S.C.A. INTERNAL REVENUE
ACTS BEGINNING 1940, REVENUE ACT OF 1943, SEC. 701, P. 491. 

WHILE SEC. 403 OF THE SIXTH SUPPLEMENTAL NATIONAL DEFENSE
APPROPRIATION ACT, 1942, AS EXPANDED BY SEC. 701(B) OF THE REVENUE ACT,
1943, IS TOO LONG FOR REPRODUCTION HERE, THE FOLLOWING EXCERPTS FROM IT
ARE ESPECIALLY RELEVANT:  SEC. 403(A)(4)(A); SEC. 403(C)(1); SEC.
403(D)(1); SEC. 403(D)(4); SEC. 403(E)(1); SEC. 403(E)(2); SEC. 403(1);
SEE ALSO, SEC. 701(D) OF THE REVENUE ACT OF 1943: 

"SEC. 701.  RENEGOTIATION OF WAR CONTRACTS. 

    .         .         .         .         . 

"(B)  RENEGOTIATION OF WAR CONTRACTS.  - SECTION 403, AS AMENDED, OF
THE SIXTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1942, IS
AMENDED TO READ AS FOLLOWS: 

"SEC. 403.  (A)  FOR THE PURPOSES OF THIS SECTION - 

     .         .         . .         . 

"(4)(A)  THE TERM 'EXCESSIVE PROFITS' MEANS THE PORTION OF THE
PROFITS DERIVED FROM CONTRACTS WITH THE DEPARTMENTS AND SUBCONTRACTS
WHICH IS DETERMINED IN ACCORDANCE WITH THIS SECTION TO BE EXCESSIVE. 
IN DETERMINING EXCESSIVE PROFITS THERE SHALL BE TAKEN INTO
CONSIDERATION THE FOLLOWING FACTORS: 

"(I)  EFFICIENCY OF CONTRACTOR, WITH PARTICULAR REGARD TO ATTAINMENT
OF QUANTITY AND QUALITY PRODUCTION, REDUCTION OF COSTS AND ECONOMY IN
THE USE OF MATERIALS, FACILITIES, AND MANPOWER; 

"(II)  REASONABLENESS OF COSTS AND PROFITS, WITH PARTICULAR REGARD TO
VOLUME OF PRODUCTION, NORMAL PRE-WAR EARNINGS, AND COMPARISON OF WAR
AND PEACETIME PRODUCTS; 

"(III)  AMOUNT AND SOURCE OF PUBLIC AND PRIVATE CAPITAL EMPLOYED AND
NET WORTH; 

"(IV)  EXTENT OF RISK ASSUMED, INCLUDING THE RISK INCIDENT TO
REASONABLE PRICING POLICIES; 

"(V)  NATURE AND EXTENT OF CONTRIBUTION TO THE WAR EFFORT, INCLUDING
INVENTIVE AND DEVELOPMENTAL CONTRIBUTION AND COOPERATION WITH THE
GOVERNMENT AND OTHER CONTRACTORS IN SUPPLYING TECHNICAL ASSISTANCE; 

"(VI)  CHARACTER OF BUSINESS, INCLUDING COMPLEXITY OF MANUFACTURING
TECHNIQUE, CHARACTER AND EXTENT OF SUBCONTRACTING, AND RATE OF TURN
OVER; 

"(VII)  SUCH OTHER FACTORS THE CONSIDERATION OF WHICH THE PUBLIC
INTEREST AND FAIR AND EQUITABLE DEALING MAY REQUIRE, WHICH FACTORS
SHALL BE PUBLISHED IN THE REGULATIONS OF THE BOARD FROM TIME TO TIME AS
ADOPTED. 

     .         .    .         .         . 

"(C)(1)  WHENEVER, IN THE OPINION OF THE BOARD, THE AMOUNTS RECEIVED
OR ACCRUED UNDER CONTRACTS WITH THE DEPARTMENTS AND SUBCONTRACTS MAY
REFLECT EXCESSIVE PROFITS, THE BOARD SHALL GIVE TO THE CONTRACTOR OR
SUBCONTRACTOR, AS THE CASE MAY BE, REASONABLE NOTICE OF THE TIME AND
PLACE OF A CONFERENCE TO BE HELD WITH RESPECT THERETO.  THE MAILING OF
SUCH NOTICE BY REGISTERED MAIL TO THE CONTRACTOR OR SUBCONTRACTOR SHALL
CONSTITUTE THE COMMENCEMENT OF THE RENEGOTIATION PROCEEDING.  AT THE
CONFERENCE, WHICH MAY BE ADJOURNED FROM TIME TO TIME, THE BOARD SHALL
ENDEAVOR TO MAKE A FINAL OR OTHER AGREEMENT WITH THE CONTRACTOR OR
SUBCONTRACTOR WITH RESPECT TO THE ELIMINATION OF EXCESSIVE PROFITS
RECEIVED OR ACCRUED, AND WITH RESPECT TO SUCH OTHER MATTERS RELATING
THERETO AS THE BOARD DEEMS ADVISABLE.  ANY SUCH AGREEMENT, IF MADE,
MAY, WITH THE CONSENT OF THE CONTRACTOR OR SUBCONTRACTOR, ALSO INCLUDE
PROVISIONS WITH RESPECT TO THE ELIMINATION OF EXCESSIVE PROFITS LIKELY
TO BE RECEIVED OR ACCRUED.  IF THE BOARD DOES NOT MAKE AN AGREEMENT
WITH RESPECT TO THE ELIMINATION OF EXCESSIVE PROFITS RECEIVED OR
ACCRUED, IT SHALL ISSUE AND ENTER AN ORDER DETERMINING THE AMOUNT, IF
ANY, OF SUCH EXCESSIVE PROFITS, AND FORTHWITH GIVE NOTICE THEREOF BY
REGISTERED MAIL TO THE CONTRACTOR OR SUBCONTRACTOR.  IN THE ABSENCE OF
THE FILING OF A PETITION WITH THE TAX COURT OF THE UNITED STATES UNDER
THE PROVISIONS OF AND WITHIN THE TIME LIMIT PRESCRIBED IN SUBSECTION
(E)(1), SUCH ORDER SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE
SUBJECT TO REVIEW OR REDETERMINATION BY ANY COURT OR OTHER AGENCY.  THE
BOARD SHALL EXERCISE ITS POWERS WITH RESPECT TO THE AGGREGATE OF THE
AMOUNTS RECEIVED OR ACCRUED DURING THE FISCAL YEAR (OR SUCH OTHER
PERIOD AS MAY BE FIXED BY MUTUAL AGREEMENT) BY A CONTRACTOR OR
SUBCONTRACTOR UNDER CONTRACTS WITH THE DEPARTMENTS AND SUBCONTRACTS,
AND NOT SEPARATELY WITH RESPECT TO AMOUNTS RECEIVED OR ACCRUED UNDER
SEPARATE CONTRACTS WITH THE DEPARTMENTS OR SUBCONTRACTS, EXCEPT THAT
THE BOARD MAY EXERCISE SUCH POWERS SEPARATELY WITH RESPECT TO AMOUNTS
RECEIVED OR ACCRUED BY THE CONTRACTOR OR SUBCONTRACTOR UNDER ANY ONE OR
MORE SEPARATE CONTRACTS WITH THE DEPARTMENTS OR SUBCONTRACTS AT THE
REQUEST OF THE CONTRACTOR OR SUBCONTRACTOR.  WHENEVER THE BOARD MAKES A
DETERMINATION WITH RESPECT TO THE AMOUNT OF EXCESSIVE PROFITS, WHETHER
SUCH DETERMINATION IS MADE BY ORDER OR IS EMBODIED IN AN AGREEMENT WITH
THE CONTRACTOR OR SUBCONTRACTOR, IT SHALL, AT THE REQUEST OF THE
CONTRACTOR OR SUBCONTRACTOR, AS THE CASE MAY BE, PREPARE AND FURNISH
SUCH CONTRACTOR OR SUBCONTRACTOR WITH A STATEMENT OF SUCH
DETERMINATION, OF THE FACTS USED AS A BASIS THEREFOR, AND OF ITS
REASONS FOR SUCH DETERMINATION.  SUCH STATEMENT SHALL NOT BE USED IN
THE TAX COURT OF THE UNITED STATES AS PROOF OF THE FACTS OR CONCLUSIONS
STATED THEREIN. 

     .         .         .         .         . 

"(D)(1)  THERE IS HEREBY CREATED A WAR CONTRACTS PRICE ADJUSTMENT
BOARD (IN THIS SECTION CALLED THE 'BOARD'), WHICH SHALL CONSIST OF SIX
MEMBERS.  ... 

     .        .         .         .         . 

"(4)  THE BOARD MAY DELEGATE IN WHOLE OR IN PART ANY POWER, FUNCTION,
OR DUTY TO THE SECRETARY OF A DEPARTMENT, AND ANY POWER, FUNCTION, OR
DUTY SO DELEGATED MAY BE DELEGATED IN WHOLE OR IN PART BY THE SECRETARY
TO SUCH OFFICERS OR AGENCIES OF THE UNITED STATES AS HE MAY DESIGNATE,
AND HE MAY AUTHORIZE SUCCESSIVE REDELEGATIONS OF SUCH POWERS,
FUNCTIONS, AND DUTIES. 

     .         .  .         .         . 

"(E)(1)  ANY CONTRACTOR OR SUBCONTRACTOR AGGRIEVED BY AN ORDER OF THE
BOARD DETERMINING THE AMOUNT OF EXCESSIVE PROFITS RECEIVED OR ACCRUED
BY SUCH CONTRACTOR OR SUBCONTRACTOR MAY, WITHIN NINETY DAYS (NOT
COUNTING SUNDAY OR A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA AS THE
LAST DAY) AFTER THE MAILING OF THE NOTICE OF SUCH ORDER UNDER
SUBSECTION (C)(1), FILE A PETITION WITH THE TAX COURT OF THE UNITED
STATES FOR A REDETERMINATION THEREOF.  UPON SUCH FILING SUCH COURT
SHALL HAVE EXCLUSIVE JURISDICTION, BY ORDER, TO FINALLY DETERMINE THE
AMOUNT, IF ANY, OF SUCH EXCESSIVE PROFITS RECEIVED OR ACCRUED BY THE
CONTRACTOR OR SUBCONTRACTOR, AND SUCH DETERMINATION SHALL NOT BE
REVIEWED OR REDETERMINED BY ANY COURT OR AGENCY.  THE COURT MAY
DETERMINE AS THE AMOUNT OF EXCESSIVE PROFITS AN AMOUNT EITHER LESS
THAN, EQUAL TO, OR GREATER THAN THAT DETERMINED BY THE BOARD.  A
PROCEEDING BEFORE THE TAX COURT TO FINALLY DETERMINE THE AMOUNT, IF
ANY, OF EXCESSIVE PROFITS SHALL NOT BE TREATED AS A PROCEEDING TO
REVIEW THE DETERMINATION OF THE BOARD, BUT SHALL BE TREATED AS A
PROCEEDING DE NOVO.  ...    "(2)  ANY CONTRACTOR OR SUBCONTRACTOR  ...
AGGRIEVED BY A DETERMINATION OF THE SECRETARY MADE PRIOR TO THE DATE OF
THE ENACTMENT OF THE REVENUE ACT OF 1943, WITH RESPECT TO A FISCAL YEAR
ENDING BEFORE JULY 1, 1943, AS TO THE EXISTENCE OF EXCESSIVE PROFITS,
WHICH IS NOT EMBODIED IN AN AGREEMENT WITH THE CONTRACTOR OR
SUBCONTRACTOR, MAY, WITHIN NINETY DAYS (NOT COUNTING SUNDAY OR A LEGAL
HOLIDAY IN THE DISTRICT OF COLUMBIA AS THE LAST DAY) AFTER THE DATE OF
THE ENACTMENT OF THE REVENUE ACT OF 1943, FILE A PETITION WITH THE TAX
COURT OF THE UNITED STATES FOR A REDETERMINATION THEREOF, AND ANY SUCH
CONTRACTOR OR SUBCONTRACTOR AGGRIEVED BY A DETERMINATION OF THE
SECRETARY MADE ON OR AFTER THE DATE OF THE ENACTMENT OF THE REVENUE ACT
OF 1943, WITH RESPECT TO ANY SUCH FISCAL YEAR, AS TO THE EXISTENCE OF
EXCESSIVE PROFITS, WHICH IS NOT EMBODIED IN AN AGREEMENT WITH THE
CONTRACTOR OR SUBCONTRACTOR, MAY, WITHIN NINETY DAYS (NOT COUNTING
SUNDAY OR A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA AS THE LAST DAY)
AFTER THE DATE OF SUCH DETERMINATION, FILE A PETITION WITH THE TAX
COURT OF THE UNITED STATES FOR A REDETERMINATION THEREOF.  UPON SUCH
FILING SUCH COURT SHALL HAVE THE SAME JURISDICTION, POWERS, AND DUTIES,
AND THE PROCEEDING SHALL BE SUBJECT TO THE SAME PROVISIONS, AS IN THE
CASE OF A PETITION FILED WITH THE COURT UNDER PARAGRAPH (1), EXCEPT
THAT THE AMENDMENTS MADE TO THIS SECTION BY THE REVENUE ACT OF 1943
WHICH ARE NOT MADE APPLICABLE AS OF APRIL 28, 1942, OR TO FISCAL YEARS
ENDING BEFORE JULY 1, 1943, SHALL NOT APPLY. 

 .         .         .         .         . 

"(L)  THIS SECTION MAY BE CITED AS THE 'RENEGOTIATION ACT'." 

     .       .         .         .         . 

"(D)  (SEC. 701.)  EFFECTIVE DATE.  - THE AMENDMENTS MADE BY
SUBSECTION (B) SHALL BE EFFECTIVE ONLY WITH RESPECT TO THE FISCAL YEARS
ENDING AFTER JUNE 30, 1943, EXCEPT THAT (1) THE AMENDMENTS INSERTING
SUBSECTIONS (A)(4)(C), (A)(4)(D), (I)(1)(C), (I)(1)(D), (I)(1)(F),
(I)(3), AND (1) IN SECTION 403 OF THE SIXTH SUPPLEMENTAL NATIONAL
DEFENSE APPROPRIATION ACT, 1942, SHALL BE EFFECTIVE AS IF SUCH
AMENDMENTS AND SUBSECTIONS HAD BEEN A PART OF SECTION 403 OF SUCH ACT
ON THE DATE OF ITS ENACTMENT, AND (2) THE AMENDMENTS ADDING SUBSECTION
(D) AND (E)(2) TO SECTION 403 OF SUCH ACT SHALL BE EFFECTIVE FROM THE
DATE OF THE ENACTMENT OF THIS ACT."  58 STAT. 78. 

MR. JUSTICE DOUGLAS DISSENTING IN PART. 

THE BUSINESS INVOLVED IN THE LICHTER CASE RELATES TO PROFITS REALIZED
DURING THE FISCAL YEAR ENDING DECEMBER 31, 1942.  AS TO THE AMOUNTS
OWED UNDER THESE CONTRACTS, PETITIONERS ARE ENTITLED TO A HEARING IN
THE DISTRICT COURT.  FOR CONGRESS DID NOT REQUIRE THAT CLASS OF
CONTRACTS TO BE TAKEN TO THE TAX COURT.  I THINK A CLOSE READING OF THE
STATUTES, CONTAINED IN APPENDIX III TO THE COURT'S OPINION, WILL BEAR
ME OUT. 

THEY MAY BE REVIEWED BY THE TAX COURT.  AND SEC. 403(C)(1) PROVIDES
THAT IN THE ABSENCE OF THE FILING OF SUCH A PETITION WITH THE TAX
COURT, THE ORDERS OF THE BOARD "SHALL BE FINAL AND CONCLUSIVE." 

BUT WE ARE CONCERNED HERE NOT WITH ORDERS OF THE BOARD BUT WITH AN
ORDER OF THE SECRETARY.  SECTION 403(E)(2) PROVIDES THAT THOSE ORDERS,
TOO, MAY BE TAKEN TO THE TAX COURT.  BUT SEC. 403(E)(2) BY ITS TERMS
MAKES INAPPLICABLE THOSE PROVISIONS OF THE 1943 AMENDMENT WHICH ARE NOT
MADE APPLICABLE AS OF APRIL 28, 1942, OR TO THE FISCAL YEARS ENDING
BEFORE JULY 1, 1943.  THUS, SEC. 403(C)(6) LIMITS SUBSECTION (C) "TO
ALL CONTRACTS AND SUBCONTRACTS, TO THE EXTENT OF AMOUNTS RECEIVED OR
ACCRUED THEREUNDER IN ANY FISCAL YEAR ENDING AFTER JUNE 30, 1943,
WHETHER SUCH CONTRACTS OR SUBCONTRACTS WERE MADE ON, PRIOR TO, OR AFTER
THE DATE OF THE ENACTMENT OF THE REVENUE ACT OF 1943."  HENCE IT IS
CLEAR THAT THE PROVISION OF SEC. 403(C)(1) WHICH MAKES THE ORDERS OF
THE BOARD FINAL AND CONCLUSIVE IN ABSENCE OF THE FILING OF A PETITION
WITH THE TAX COURT IS NOT APPLICABLE HERE.  ORDERS OF THE SECRETARY, AT
LEAST AS RESPECTS 1942 BUSINESS, ARE THEREFORE TREATED DIFFERENTLY THAN
ORDERS OF THE BOARD.  I CONCLUDE THAT THE PURPOSE WAS TO LEAVE
CONTRACTS AND CONTRACTORS WHO FELL IN THAT CATEGORY WITH THE RIGHT OF
ACCESS TO THE COURTS WHICH THEY HAD ENJOYED PRIOR TO THE REVENUE ACT OF
1943.  IN THOSE CASES JURISDICTION OF THE TAX COURT MAY BE INVOKED AT
THE OPTION OF THE PETITIONERS. 

MACAULEY V. WATERMAN S.S. CORP., 327 U.S. 540, IS NOT OPPOSED TO THIS
CONCLUSION.  FOR THAT CASE INVOLVED AN ORDER OF THE BOARD.  WADE V.
STIMSON, 331 U.S. 793, INVOLVED AN ORDER OF THE SECRETARY AND RELATED
TO 1942 BUSINESS.  BUT THE QUESTION IN ISSUE HERE WAS NOT RAISED THERE,
AS IT IS NOT IN ALEXANDER WOOL COMBING CO. V. UNITED STATES, DECIDED
THIS DAY. 
..END :























LOFTUS V. ILLINOIS, 334 U.S. 804 


NO. 59.  ARGUED APRIL 26, 1948.  - DECIDED JUNE 14, 1948. 


IN THE CIRCUMSTANCES OF THIS CASE, THE CAUSE IS CONTINUED FOR AN
APPROPRIATE PERIOD TO ENABLE THIS COURT TO BE ADVISED WITHOUT AMBIGUITY
WHETHER THE STATE SUPREME COURT INTENDED TO REST ITS JUDGMENT HEREIN ON
AN ADEQUATE INDEPENDENT STATE GROUND OR WHETHER DECISION OF THE CLAIM
OF DENIAL OF FEDERAL CONSTITUTIONAL RIGHT WAS NECESSARY TO THE JUDGMENT
RENDERED.  PP. 804-806. 

LOFTUS V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

PETITIONER, BY AN ORIGINAL WRIT OF ERROR IN THE STATE SUPREME COURT,
CHALLENGED THE VALIDITY OF FOUR JUDGMENTS OF CONVICTION IN A CIRCUIT
COURT OF THE STATE.  THE STATE SUPREME COURT AFFIRMED THE JUDGMENTS. 
395 ILL. 479, 70 N.E.2D 573.  THIS COURT GRANTED CERTIORARI.  333 U.S.
831.  CAUSE CONTINUED, PP. 805-806. 

PER CURIAM. 

BY WAY OF AN ORIGINAL WRIT OF ERROR IN THE SUPREME COURT OF ILLINOIS,
PETITIONER CHALLENGED THE VALIDITY OF FOUR CONVICTIONS IN A CIRCUIT
COURT OF THAT STATE.  THE ILLINOIS SUPREME COURT AFFIRMED THE
JUDGMENTS, 395 ILL. 479, 70 N.E.2D 573.  WE BROUGHT THE CASE HERE, 333
U.S. 831, BECAUSE OF A SERIOUS CLAIM THAT PETITIONER WAS DENIED THE
ASSISTANCE OF COUNSEL UNDER CIRCUMSTANCES WHICH CONSTITUTE A DISREGARD
OF THE SAFEGUARDS TO WHICH HE WAS ENTITLED UNDER THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT. 

THE ILLINOIS SUPREME COURT DISPOSED OF THIS CLAIM ON THE BASIS OF THE
REQUIREMENTS OF ILLINOIS LAW.  IF THE ILLINOIS DECISION WAS AN
ADJUDICATION OF THE RIGHTS TO WHICH THE PETITIONER WAS ENTITLED UNDER
THE DUE PROCESS CLAUSE, WE WOULD BE CONSTRAINED TO HOLD THAT HE HAD
BROUGHT HIMSELF WITHIN OUR GOVERNING DECISIONS.  IN HIS ORAL ARGUMENT
HERE, HOWEVER, THE ATTORNEY GENERAL OF THE STATE INSISTED THAT THE
CIRCUMSTANCES ON WHICH PETITIONER RELIES IN CLAIMING DENIAL OF A RIGHT
UNDER THE UNITED STATES CONSTITUTION WERE NOT PROPERLY BEFORE THE
SUPREME COURT OF ILLINOIS ON THE ILLINOIS WRIT OF ERROR, BUT MUST BE
PURSUED IN ILLINOIS BY HABEAS CORPUS.  THE ATTORNEY GENERAL RELIES FOR
HIS VIEW OF THE LOCAL LAW UPON TWO RECENT OPINIONS OF THE ILLINOIS
SUPREME COURT, PEOPLE V. WILSON, 399 ILL. 437, 78 N.E.2D 514, AND
PEOPLE V. SHOFFNER, 400 ILL. 174, 79 N.E.2D 200.  BOTH THESE OPINIONS
CERTAINLY RECOGNIZE THAT THE RIGHT TO COUNSEL OF INDIGENT ACCUSED MAY,
UNDER RELEVANT CIRCUMSTANCES, BE PART OF THE DUE PROCESS WHICH THE
FOURTEENTH AMENDMENT GUARANTEES. 

IF, AS A MATTER OF LOCAL PROCEDURE, ILLINOIS CHOOSES TO ALLOW A
FEDERAL RIGHT, SUCH AS THE PRESENT RECORD PRESENTS, TO BE VINDICATED BY
HABEAS CORPUS IN ITS ILLINOIS SCOPE, BUT DOES NOT MAKE AVAILABLE THE
ILLINOIS WRIT OF ERROR, THAT IS FOR ILLINOIS TO SAY AND NOT FOR US TO
DENY. 

EVEN THOUGH OUR READING OF THE RECORD AND OF ILLINOIS LAW MIGHT GIVE
US A DIFFERENT UNDERSTANDING, WE HAVE HAD TOO GREAT DIFFICULTY IN
ASCERTAINING WHAT IS THE APPROPRIATE ILLINOIS PROCEDURE FOR RAISING
CLAIMS OF INFRINGEMENT OF FEDERAL RIGHTS TO REJECT THE ATTORNEY
GENERAL'S SUBMISSION REGARDING ILLINOIS PROCEDURAL LAW.  SEE, E.G.,
MARINO V. RAGEN, 332 U.S. 561.  IF THE ATTORNEY GENERAL IS CORRECT AND
PETITIONER SOUGHT TO RAISE EVEN A VALID FEDERAL CLAIM BY WAY OF AN
UNAVAILABLE ILLINOIS REMEDY, WE HAVE OF COURSE A JUDGMENT THAT RESTS ON
A NON-FEDERAL GROUND, CALLING FOR DISMISSAL OF OUR WRIT.  IN THIS STATE
OF UNCERTAINTY, WE FOLLOW OUR PRECEDENT IN HERB V. PITCAIRN, 324 U.S.
117.  SEE ALSO PHYLE V. DUFFY, 334 U.S. 431. 

ACCORDINGLY, WE SHALL CONTINUE THIS CAUSE FOR AN APPROPRIATE PERIOD
TO ENABLE US TO BE ADVISED WITHOUT AMBIGUITY WHETHER THE ILLINOIS
SUPREME COURT INTENDED TO REST THE JUDGMENT HEREIN ON AN ADEQUATE
INDEPENDENT STATE GROUND OR WHETHER DECISION OF THE CLAIM UNDER THE
FOURTEENTH AMENDMENT WAS NECESSARY TO THE JUDGMENT RENDERED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE OPINION THAT THE
JUDGMENT SHOULD BE REVERSED. 
..END :




















HEDGEBETH V. NORTH CAROLINA, 334 U.S. 806 


NO. 674.  ARGUED APRIL 27, 1948.  - DECIDED JUNE 14, 1948.  - 228 N.C.
259, 45 S.E.2D 563, CERTIORARI DISMISSED. 


1.  THE STATE SUPREME COURT HAVING AFFIRMED DISMISSAL OF A HABEAS
CORPUS PROCEEDING INVOLVING A CLAIM OF FEDERAL CONSTITUTIONAL RIGHT ON
THE GROUND THAT THE FULL RECORD WAS NOT BEFORE IT, THE WRIT OF
CERTIORARI GRANTED TO REVIEW THAT JUDGMENT IS DISMISSED BECAUSE THE
JUDGMENT CAN REST ON AN ADEQUATE NON-FEDERAL GROUND.  P. 807. 

2.  A STATE PRISONER'S RIGHTS UNDER THE FEDERAL CONSTITUTION MUST BE
PURSUED IN ACCORDANCE WITH THE STATE PROCEDURE OR, IN DEFAULT OF RELIEF
BY AVAILABLE STATE PROCEDURE, BY A NEW CLAIM OF DENIAL OF FEDERAL RIGHT
FOR WANT OF SUCH RELIEF.  P. 807. 

HEDGEBETH V. NORTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

PETITIONER SUED IN A STATE COURT FOR HABEAS CORPUS TO SECURE RELEASE
FROM IMPRISONMENT UNDER A CONVICTION ALLEGED TO HAVE DENIED HIS FEDERAL
CONSTITUTIONAL RIGHTS.  A JUDGMENT DISMISSING THE WRIT WAS AFFIRMED BY
THE STATE SUPREME COURT.  228 N.C. 259, 45 S.E.2D 563.  THIS COURT
GRANTED CERTIORARI.  333 U.S. 854.  DISMISSED, P. 807. 

PER CURIAM. 

AFTER A CONVICTION FOR ROBBERY, PETITIONER SUED OUT A WRIT OF HABEAS
CORPUS IN A SUPERIOR COURT OF NORTH CAROLINA CLAIMING THAT THE SENTENCE
HE IS SERVING INVOLVED A DENIAL OF HIS RIGHTS UNDER THE FOURTEENTH
AMENDMENT.  THE WRIT WAS DISMISSED AND THE DISMISSAL AFFIRMED BY THE
SUPREME COURT OF NORTH CAROLINA.  228 N.C. 259, 45 S.E.2D 563.  IF
PETITIONER'S ALLEGATIONS, WITH SUPPORTING AFFIDAVITS, IN THE HABEAS
CORPUS PROCEEDINGS CONTROLLED THE ISSUE BEFORE US, THEY WOULD ESTABLISH
CIRCUMSTANCES THAT MAKE THE RIGHT TO ASSISTANCE OF COUNSEL AN
INGREDIENT OF THE DUE PROCESS CLAUSE.  WHILE THE SUPREME COURT OF NORTH
CAROLINA RECOGNIZED THE RIGHT OF AN ACCUSED TO THE BENEFIT OF COUNSEL
UNDER APPROPRIATE CIRCUMSTANCES, IT HELD THAT IN THE PROCEEDINGS ON THE
HABEAS CORPUS THE TRIAL COURT HAD BEFORE IT NOT MERELY THE PETITIONER'S
ALLEGATIONS BUT "THE ORAL TESTIMONY OF THE SHERIFF, WHICH WAS NOT SENT
UP."  IN SHORT, THERE WAS BEFORE THE NORTH CAROLINA SUPREME COURT ONLY
A PARTIAL RECORD OF THE PROCEEDINGS IN THE SUPERIOR COURT.  IN
REVIEWING A JUDGMENT OF A STATE COURT, WE ARE BOUND BY THE RECORD ON
WHICH THAT JUDGMENT WAS BASED.  SINCE THE NORTH CAROLINA SUPREME COURT
WENT ON THE GROUND THAT IT DID NOT HAVE THE FULL RECORD BEFORE IT, WE
ARE CONSTRAINED TO DISMISS THIS WRIT BECAUSE THE JUDGMENT BELOW CAN
REST ON A NON-FEDERAL GROUND.  PETITIONER'S RIGHTS UNDER THE FEDERAL
CONSTITUTION MUST BE PURSUED ACCORDING TO THE PROCEDURAL REQUIREMENTS
OF NORTH CAROLINA OR, IN DEFAULT OF RELIEF BY AVAILABLE NORTH CAROLINA
PROCEEDINGS, BY A NEW CLAIM OF DENIAL OF DUE PROCESS FOR WANT OF SUCH
RELIEF.  FOSTER V. ILLINOIS, 332 U.S. 134, 139. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE ARE OF THE OPINION THAT
THE JUDGMENT SHOULD BE REVERSED. 
..END :


















SHERRER V. SHERRER, 334 U.S. 343 


NO. 36.  ARGUED OCTOBER 13-14, 1947.  - DECIDED JUNE 7, 1948.  - 320
MASS. 351, 69 N.E.2D 801, REVERSED. 


A WIFE WENT FROM HER MASSACHUSETTS HOME TO FLORIDA AND SUED FOR
DIVORCE IN A COURT OF THAT STATE A FEW DAYS AFTER THE EXPIRATION OF THE
90-DAY PERIOD OF RESIDENCE REQUIRED BY FLORIDA LAW.  HER HUSBAND
APPEARED GENERALLY AND DENIED ALL THE ALLEGATIONS IN THE COMPLAINT,
INCLUDING THAT OF THE WIFE'S FLORIDA RESIDENCE.  AT THE HEARING, THE
WIFE INTRODUCED EVIDENCE TO ESTABLISH HER FLORIDA RESIDENCE, AND THE
HUSBAND, THOUGH PRESENT IN PERSON AND BY COUNSEL, DID NOT CROSS-EXAMINE
OR PROFFER EVIDENCE IN REBUTTAL.  THE COURT FOUND THAT THE WIFE WAS A
BONA FIDE RESIDENT OF FLORIDA AND GRANTED HER A DIVORCE.  THE HUSBAND
DID NOT APPEAL.  THE WIFE MARRIED AGAIN AND SUBSEQUENTLY RETURNED TO
MASSACHUSETTS.  HER FORMER HUSBAND THEN INSTITUTED PROCEEDINGS THERE
COLLATERALLY ATTACKING THE FLORIDA DECREE.  ALTHOUGH THERE WAS NO
INDICATION THAT THE DECREE WOULD HAVE BEEN SUBJECT TO SUCH AN ATTACK
UNDER FLORIDA LAW, THE MASSACHUSETTS COURT FOUND THAT THE WIFE WAS
NEVER DOMICILED IN FLORIDA AND HELD THE DIVORCE VOID.  HELD:  THE
MASSACHUSETTS JUDGMENT DENIED FULL FAITH AND CREDIT TO THE FLORIDA
JUDGMENT, CONTRARY TO ART. IV, SEC. 1 OF THE CONSTITUTION AND THE ACT
OF MAY 26, 1790, 28 U.S.C. SEC. 687.  PP. 344-356. 

(A)  THE HUSBAND HAD HIS DAY IN COURT IN FLORIDA WITH RESPECT TO
EVERY ISSUE INVOLVED IN THE LITIGATION, AND THERE IS NOTHING IN THE
CONCEPT OF DUE PROCESS WHICH DEMANDS THAT HE BE GIVEN A SECOND
OPPORTUNITY TO LITIGATE THE EXISTENCE OF THE JURISDICTIONAL FACTS.  P.
348. 

(B)  THE REQUIREMENTS OF FULL FAITH AND CREDIT BAR A DEFENDANT FROM
COLLATERALLY ATTACKING A DIVORCE DECREE ON JURISDICTIONAL GROUNDS IN
THE COURTS OF A SISTER STATE WHERE THERE HAS BEEN PARTICIPATION BY THE
DEFENDANT IN THE DIVORCE PROCEEDINGS, WHERE THE DEFENDANT HAS BEEN
ACCORDED FULL OPPORTUNITY TO CONTEST THE JURISDICTIONAL ISSUES, AND
WHERE THE DECREE IS NOT SUSCEPTIBLE TO SUCH COLLATERAL ATTACK IN THE
COURTS OF THE STATE WHICH RENDERED THE DECREE.  DAVIS V. DAVIS, 305
U.S. 32, FOLLOWED.  WILLIAMS V. NORTH CAROLINA, 325 U.S. 226,
DISTINGUISHED.  PP. 348-352. 

(C)  INSOFAR AS THE RULE OF ANDREWS V. ANDREWS, 188 U.S. 14, MAY BE
SAID TO BE INCONSISTENT WITH THE JUDGMENT HEREIN ANNOUNCED, IT MUST BE
REGARDED AS HAVING BEEN SUPERSEDED BY SUBSEQUENT DECISIONS OF THIS
COURT.  PP. 352-353. 

(D)  IF THE APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE TO CASES
OF THIS NATURE REQUIRES THAT LOCAL POLICY BE SUBORDINATED, THAT IS A
PART OF THE PRICE OF OUR FEDERAL SYSTEM.  THAT VITAL INTERESTS ARE
INVOLVED IN DIVORCE LITIGATION MAKES IT A MATTER OF GREATER RATHER THAN
LESSER IMPORTANCE THAT UNDER THE CIRCUMSTANCES OF THIS CASE THE
LITIGATION END IN THE COURTS OF THE STATE IN WHICH THE DECREE WAS
RENDERED.  PP. 354-356. 

SHERRER V. SHERRER. 

CERTIORARI TO THE PROBATE COURT FOR BERKSHIRE COUNTY, MASSACHUSETTS. 

AFTER A WIFE HAD OBTAINED A DIVORCE IN FLORIDA, AND HAD RETURNED TO
HER FORMER HOME IN MASSACHUSETTS, A PROBATE COURT IN MASSACHUSETTS
FOUND THAT SHE WAS NEVER DOMICILED IN FLORIDA AND HELD THE DIVORCE
VOID.  THE SUPREME JUDICIAL COURT OF MASSACHUSETTS AFFIRMED.  320 MASS.
351, 69 N.E.2D 801.  THIS COURT GRANTED CERTIORARI.  330 U.S. 814. 
REVERSED, P. 356. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE AND IN COE V. COE, POST, P. 378,
TO CONSIDER THE CONTENTION OF PETITIONERS THAT MASSACHUSETTS HAS FAILED
TO ACCORD FULL FAITH AND CREDIT TO DECREES OF DIVORCE RENDERED BY
COURTS OF SISTER STATES.  FN1 

PETITIONER MARGARET E. SHERRER AND THE RESPONDENT, EDWARD C. SHERRER,
WERE MARRIED IN NEW JERSEY IN 1930, AND FROM 1932 UNTIL APRIL 3, 1944,
LIVED TOGETHER IN MONTEREY, MASSACHUSETTS.  FOLLOWING A LONG PERIOD OF
MARITAL DISCORD, PETITIONER, ACCOMPANIED BY THE TWO CHILDREN OF THE
MARRIAGE, LEFT MASSACHUSETTS ON THE LATTER DATE, OSTENSIBLY FOR THE
PURPOSE OF SPENDING A VACATION IN THE STATE OF FLORIDA.  SHORTLY AFTER
HER ARRIVAL IN FLORIDA, HOWEVER, PETITIONER INFORMED HER HUSBAND THAT
SHE DID NOT INTEND TO RETURN TO HIM.  PETITIONER OBTAINED HOUSING
ACCOMMODATIONS IN FLORIDA, PLACED HER OLDER CHILD IN SCHOOL, AND
SECURED EMPLOYMENT FOR HERSELF. 

ON JULY 6, 1944, A BILL OF COMPLAINT FOR DIVORCE WAS FILED AT
PETITIONER'S DIRECTION IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL
CIRCUIT OF THE STATE OF FLORIDA.  FN2  THE BILL ALLEGED EXTREME CRUELTY
AS GROUNDS FOR DIVORCE AND ALSO ALLEGED THAT PETITIONER WAS A "BONA
FIDE LEGAL RESIDENT OF THE STATE OF FLORIDA."  FN3  THE RESPONDENT
RECEIVED NOTICE BY MAIL OF THE PENDENCY OF THE DIVORCE PROCEEDINGS.  HE
RETAINED FLORIDA COUNSEL WHO ENTERED A GENERAL APPEARANCE AND FILED AN
ANSWER DENYING THE ALLEGATIONS OF PETITIONER'S COMPLAINT, INCLUDING THE
ALLEGATION AS TO PETITIONER'S FLORIDA RESIDENCE.  FN4 

ON NOVEMBER 14, 1944, HEARINGS WERE HELD IN THE DIVORCE PROCEEDINGS. 
RESPONDENT APPEARED PERSONALLY TO TESTIFY WITH RESPECT TO A STIPULATION
ENTERED INTO BY THE PARTIES RELATING TO THE CUSTODY OF THE CHILDREN. 
FN5  THROUGHOUT THE ENTIRE PROCEEDINGS RESPONDENT WAS REPRESENTED BY
COUNSEL.  FN6  PETITIONER INTRODUCED EVIDENCE TO ESTABLISH HER FLORIDA
RESIDENCE AND TESTIFIED GENERALLY TO THE ALLEGATIONS OF HER COMPLAINT. 
COUNSEL FOR RESPONDENT FAILED TO CROSS-EXAMINE OR TO INTRODUCE EVIDENCE
IN REBUTTAL. 

THE FLORIDA COURT ON NOVEMBER 29, 1944, ENTERED A DECREE OF DIVORCE
AFTER SPECIFICALLY FINDING THAT PETITIONER "IS A BONA FIDE RESIDENT OF
THE STATE OF FLORIDA, AND THAT THIS COURT HAS JURISDICTION OF THE
PARTIES AND THE SUBJECT MATTER IN SAID CAUSE; ...  "  RESPONDENT FAILED
TO CHALLENGE THE DECREE BY APPEAL TO THE FLORIDA SUPREME COURT.  FN7 

ON DECEMBER 1, 1944, PETITIONER WAS MARRIED IN FLORIDA TO ONE HENRY
A. PHELPS, WHOM PETITIONER HAD KNOWN WHILE BOTH WERE RESIDING IN
MASSACHUSETTS AND WHO HAD COME TO FLORIDA SHORTLY AFTER PETITIONER'S
ARRIVAL IN THAT STATE.  PHELPS AND PETITIONER LIVED TOGETHER AS HUSBAND
AND WIFE IN FLORIDA, WHERE THEY WERE BOTH EMPLOYED, UNTIL FEBRUARY 5,
1945, WHEN THEY RETURNED TO MASSACHUSETTS. 

IN JUNE, 1945, RESPONDENT INSTITUTED AN ACTION IN THE PROBATE COURT
OF BERKSHIRE COUNTY, MASSACHUSETTS, WHICH HAS GIVEN RISE TO THE ISSUES
OF THIS CASE.  RESPONDENT ALLEGED THAT HE IS THE LAWFUL HUSBAND OF
PETITIONER, THAT THE FLORIDA DECREE OF DIVORCE IS INVALID, AND THAT
PETITIONER'S SUBSEQUENT MARRIAGE IS VOID.  RESPONDENT PRAYED THAT HE
MIGHT BE PERMITTED TO CONVEY HIS REAL ESTATE AS IF HE WERE SOLE AND
THAT THE COURT DECLARE THAT HE WAS LIVING APART FROM HIS WIFE FOR
JUSTIFIABLE CAUSE.  FN8  PETITIONER JOINED ISSUE ON RESPONDENT'S
ALLEGATIONS. 

IN THE PROCEEDINGS WHICH FOLLOWED, PETITIONER GAVE TESTIMONY IN
DEFENSE OF THE VALIDITY OF THE FLORIDA DIVORCE DECREE.  FN9  THE
PROBATE COURT, HOWEVER, RESOLVED THE ISSUES OF FACT ADVERSELY TO
PETITIONER'S CONTENTIONS, FOUND THAT SHE WAS NEVER DOMICILED IN
FLORIDA, AND GRANTED RESPONDENT THE RELIEF HE HAD REQUESTED.  THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS AFFIRMED THE DECREE ON THE
GROUNDS THAT IT WAS SUPPORTED BY THE EVIDENCE AND THAT THE REQUIREMENTS
OF FULL FAITH AND CREDIT DID NOT PRECLUDE THE MASSACHUSETTS COURTS FROM
REEXAMINING THE FINDING OF DOMICILE MADE BY THE FLORIDA COURT.  FN10 

AT THE OUTSET, IT SHOULD BE OBSERVED THAT THE PROCEEDINGS IN THE
FLORIDA COURT PRIOR TO THE ENTRY OF THE DECREE OF DIVORCE WERE IN NO
WAY INCONSISTENT WITH THE REQUIREMENTS OF PROCEDURAL DUE PROCESS.  WE
DO NOT UNDERSTAND RESPONDENT TO URGE THE CONTRARY.  THE RESPONDENT
PERSONALLY APPEARED IN THE FLORIDA PROCEEDINGS.  THROUGH HIS ATTORNEY
HE FILED PLEADINGS DENYING THE SUBSTANTIAL ALLEGATIONS OF PETITIONER'S
COMPLAINT.  IT IS NOT SUGGESTED THAT HIS RIGHTS TO INTRODUCE EVIDENCE
AND OTHERWISE TO CONDUCT HIS DEFENSE WERE IN ANY DEGREE IMPAIRED; NOR
IS IT SUGGESTED THAT THERE WAS NOT AVAILABLE TO HIM THE RIGHT TO SEEK
REVIEW OF THE DECREE BY APPEAL TO THE FLORIDA SUPREME COURT.  IT IS
CLEAR THAT RESPONDENT WAS AFFORDED HIS DAY IN COURT WITH RESPECT TO
EVERY ISSUE INVOLVED IN THE LITIGATION, INCLUDING THE JURISDICTIONAL
ISSUE OF PETITIONER'S DOMICILE.  UNDER SUCH CIRCUMSTANCES, THERE IS
NOTHING IN THE CONCEPT OF DUE PROCESS WHICH DEMANDS THAT A DEFENDANT BE
AFFORDED A SECOND OPPORTUNITY TO LITIGATE THE EXISTENCE OF
JURISDICTIONAL FACTS.  CHICAGO LIFE INSURANCE CO. V. CHERRY, 244 U.S.
25(1917); BALDWIN V. IOWA TRAVELING MEN'S ASSN., 283 U.S. 522(1931). 

IT SHOULD ALSO BE OBSERVED THAT THERE HAS BEEN NO SUGGESTION THAT
UNDER THE LAW OF FLORIDA, THE DECREE OF DIVORCE IN QUESTION IS IN ANY
RESPECT INVALID OR COULD SUCCESSFULLY BE SUBJECTED TO THE TYPE OF
ATTACK PERMITTED BY THE MASSACHUSETTS COURT.  THE IMPLICIT ASSUMPTION
UNDERLYING THE POSITION TAKEN BY RESPONDENT AND THE MASSACHUSETTS COURT
IS THAT THIS CASE INVOLVES A DECREE OF DIVORCE VALID AND FINAL IN THE
STATE WHICH RENDERED IT; AND WE SO ASSUME.  FN11 

THAT THE JURISDICTION OF THE FLORIDA COURT TO ENTER A VALID DECREE OF
DIVORCE WAS DEPENDENT UPON PETITIONER'S DOMICILE IN THAT STATE IS NOT
DISPUTED.  FN12  THIS REQUIREMENT WAS RECOGNIZED BY THE FLORIDA COURT
WHICH RENDERED THE DIVORCE DECREE, AND THE PRINCIPLE HAS BEEN GIVEN
FREQUENT APPLICATION IN DECISIONS OF THE STATE SUPREME COURT.  FN13
BUT WHETHER OR NOT PETITIONER WAS DOMICILED IN FLORIDA AT THE TIME THE
DIVORCE WAS GRANTED WAS A MATTER TO BE RESOLVED BY JUDICIAL
DETERMINATION.  HERE, UNLIKE THE SITUATION PRESENTED IN WILLIAMS V.
NORTH CAROLINA, 325 U.S. 226(1945), THE FINDING OF THE REQUISITE
JURISDICTIONAL FACTS WAS MADE IN PROCEEDINGS IN WHICH THE DEFENDANT
APPEARED AND PARTICIPATED.  THE QUESTION WITH WHICH WE ARE CONFRONTED,
THEREFORE, IS WHETHER SUCH A FINDING MADE UNDER THE CIRCUMSTANCES
PRESENTED BY THIS CASE MAY, CONSISTENT WITH THE REQUIREMENTS OF FULL
FAITH AND CREDIT, BE SUBJECTED TO COLLATERAL ATTACK IN THE COURTS OF A
SISTER STATE IN A SUIT BROUGHT BY THE DEFENDANT IN THE ORIGINAL
PROCEEDINGS. 

THE QUESTION OF WHAT EFFECT IS TO BE GIVEN TO AN ADJUDICATION BY A
COURT THAT IT POSSESSES REQUISITE JURISDICTION IN A CASE, WHERE THE
JUDGMENT OF THAT COURT IS SUBSEQUENTLY SUBJECTED TO COLLATERAL ATTACK
ON JURISDICTIONAL GROUNDS, HAS BEEN GIVEN FREQUENT CONSIDERATION BY
THIS COURT OVER A PERIOD OF MANY YEARS.  INSOFAR AS CASES ORIGINATING
IN THE FEDERAL COURTS ARE CONCERNED, THE RULE HAS EVOLVED THAT THE
DOCTRINE OF RES JUDICATA APPLIES TO ADJUDICATIONS RELATING EITHER TO
JURISDICTION OF THE PERSON OR OF THE SUBJECT MATTER WHERE SUCH
ADJUDICATIONS HAVE BEEN MADE IN PROCEEDINGS IN WHICH THOSE QUESTIONS
WERE IN ISSUE AND IN WHICH THE PARTIES WERE GIVEN FULL OPPORTUNITY TO
LITIGATE.  FN14  THE REASONS FOR THIS DOCTRINE HAVE FREQUENTLY BEEN
STATED.  THUS IN STOLL V. GOTTLIEB, 305 U.S. 165, 172(1938), IT WAS
SAID:  "COURTS TO DETERMINE THE RIGHTS OF PARTIES ARE AN INTEGRAL PART
OF OUR SYSTEM OF GOVERNMENT.  IT IS JUST AS IMPORTANT THAT THERE SHOULD
BE A PLACE TO END AS THAT THERE SHOULD BE A PLACE TO BEGIN LITIGATION. 
AFTER A PARTY HAS HIS DAY IN COURT, WITH OPPORTUNITY TO PRESENT HIS
EVIDENCE AND HIS VIEW OF THE LAW, A COLLATERAL ATTACK UPON THE DECISION
AS TO JURISDICTION THERE RENDERED MERELY RETRIES THE ISSUE PREVIOUSLY
DETERMINED.  THERE IS NO REASON TO EXPECT THAT THE SECOND DECISION WILL
BE MORE SATISFACTORY THAN THE FIRST." 

THIS COURT HAS ALSO HELD THAT THE DOCTRINE OF RES JUDICATA MUST BE
APPLIED TO QUESTIONS OF JURISDICTION IN CASES ARISING IN STATE COURTS
INVOLVING THE APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE WHERE,
UNDER THE LAW OF THE STATE IN WHICH THE ORIGINAL JUDGMENT WAS RENDERED,
SUCH ADJUDICATIONS ARE NOT SUSCEPTIBLE TO COLLATERAL ATTACK.  FN15 

IN DAVIS V. DAVIS, 305 U.S. 32(1938), THE COURTS OF THE DISTRICT OF
COLUMBIA HAD REFUSED TO GIVE EFFECT TO A DECREE OF ABSOLUTE DIVORCE
RENDERED IN VIRGINIA, ON THE GROUND THAT THE VIRGINIA COURT HAD LACKED
JURISDICTION DESPITE THE FACT THAT THE DEFENDANT HAD APPEARED IN THE
VIRGINIA PROCEEDINGS AND HAD FULLY LITIGATED THE ISSUE OF THE
PLAINTIFF'S DOMICILE.  THIS COURT HELD THAT IN FAILING TO GIVE
RECOGNITION TO THE VIRGINIA DECREE, THE COURTS OF THE DISTRICT HAD
FAILED TO ACCORD THE FULL FAITH AND CREDIT REQUIRED BY THE
CONSTITUTION.  DURING THE COURSE OF THE OPINION, THIS COURT STATED:
"AS TO PETITIONER'S DOMICIL FOR DIVORCE AND HIS STANDING TO INVOKE
JURISDICTION OF THE VIRGINIA COURT, ITS FINDING THAT HE WAS A BONA FIDE
RESIDENT OF THAT STATE FOR THE REQUIRED TIME IS BINDING UPON RESPONDENT
IN THE COURTS OF THE DISTRICT.  SHE MAY NOT SAY THAT HE WAS NOT
ENTITLED TO SUE FOR DIVORCE IN THE STATE COURT, FOR SHE APPEARED THERE
AND BY PLEA PUT IN ISSUE HIS ALLEGATION AS TO DOMICIL, INTRODUCED
EVIDENCE TO SHOW IT FALSE, TOOK EXCEPTIONS TO THE COMMISSIONER'S
REPORT, AND SOUGHT TO HAVE THE COURT SUSTAIN THEM AND UPHOLD HER PLEA. 
PLAINLY, THE DETERMINATION OF THE DECREE UPON THAT POINT IS EFFECTIVE
FOR ALL PURPOSES IN THIS LITIGATION."  FN16 

WE BELIEVE THAT THE DECISION OF THIS COURT IN THE DAVIS CASE AND
THOSE IN RELATED SITUATIONS FN17  ARE CLEARLY INDICATIVE OF THE RESULT
TO BE REACHED HERE.  THOSE CASES STAND FOR THE PROPOSITION THAT THE
REQUIREMENTS OF FULL FAITH AND CREDIT BAR A DEFENDANT FROM COLLATERALLY
ATTACKING A DIVORCE DECREE ON JURISDICTIONAL GROUNDS IN THE COURTS OF A
SISTER STATE WHERE THERE HAS BEEN PARTICIPATION BY THE DEFENDANT IN THE
DIVORCE PROCEEDINGS, WHERE THE DEFENDANT HAS BEEN ACCORDED FULL
OPPORTUNITY TO CONTEST THE JURISDICTIONAL ISSUES, AND WHERE THE DECREE
IS NOT SUSCEPTIBLE TO SUCH COLLATERAL ATTACK IN THE COURTS OF THE STATE
WHICH RENDERED THE DECREE.  FN18 

APPLYING THESE PRINCIPLES TO THIS CASE, WE HOLD THAT THE
MASSACHUSETTS COURTS ERRED IN PERMITTING THE FLORIDA DIVORCE DECREE TO
BE SUBJECTED TO ATTACK ON THE GROUND THAT PETITIONER WAS NOT DOMICILED
IN FLORIDA AT THE TIME THE DECREE WAS ENTERED.  RESPONDENT PARTICIPATED
IN THE FLORIDA PROCEEDINGS BY ENTERING A GENERAL APPEARANCE, FILING
PLEADINGS PLACING IN ISSUE THE VERY MATTERS HE SOUGHT SUBSEQUENTLY TO
CONTEST IN THE MASSACHUSETTS COURTS, PERSONALLY APPEARING BEFORE THE
FLORIDA COURT AND GIVING TESTIMONY IN THE CASE, AND BY RETAINING
ATTORNEYS WHO REPRESENTED HIM THROUGHOUT THE ENTIRE PROCEEDINGS.  IT
HAS NOT BEEN CONTENDED THAT RESPONDENT WAS GIVEN LESS THAN A FULL
OPPORTUNITY TO CONTEST THE ISSUE OF PETITIONER'S DOMICILE OR ANY OTHER
ISSUE RELEVANT TO THE LITIGATION.  THERE IS NOTHING TO INDICATE THAT
THE FLORIDA COURT WOULD NOT HAVE EVALUATED FAIRLY AND IN GOOD FAITH ALL
RELEVANT EVIDENCE SUBMITTED TO IT.  RESPONDENT DOES NOT EVEN CONTEND
THAT ON THE BASIS OF THE EVIDENCE INTRODUCED IN THE FLORIDA
PROCEEDINGS, THAT COURT REACHED AN ERRONEOUS RESULT ON THE ISSUE OF
PETITIONER'S DOMICILE.  IF RESPONDENT FAILED TO TAKE ADVANTAGE OF THE
OPPORTUNITIES AFFORDED HIM, THE RESPONSIBILITY IS HIS OWN.  WE DO NOT
BELIEVE THAT THE DERELICTION OF A DEFENDANT UNDER SUCH CIRCUMSTANCES
SHOULD BE PERMITTED TO PROVIDE A BASIS FOR SUBSEQUENT ATTACK IN THE
COURTS OF A SISTER STATE ON A DECREE VALID IN THE STATE IN WHICH IT WAS
RENDERED. 

IT IS SUGGESTED, HOWEVER, THAT ANDREWS V. ANDREWS, 188 U.S. 14(1903),
MILITATES AGAINST THE RESULT WE HAVE REACHED.  IN THAT CASE A HUSBAND,
WHO HAD BEEN DOMICILED IN MASSACHUSETTS, INSTITUTED DIVORCE PROCEEDINGS
IN A SOUTH DAKOTA COURT AFTER HAVING SATISFIED THE RESIDENCE
REQUIREMENTS OF THAT STATE.  THE WIFE APPEARED BY COUNSEL AND FILED
PLEADINGS CHALLENGING THE HUSBAND'S SOUTH DAKOTA DOMICILE.  BEFORE THE
DECREE OF DIVORCE WAS GRANTED, HOWEVER, THE WIFE, PURSUANT TO A CONSENT
AGREEMENT BETWEEN THE PARTIES, WITHDREW HER APPEARANCE FROM THE
PROCEEDINGS.  FOLLOWING THE ENTRY OF THE DECREE, THE HUSBAND RETURNED
TO MASSACHUSETTS AND SUBSEQUENTLY REMARRIED.  AFTER HIS DEATH A CONTEST
DEVELOPED BETWEEN HIS FIRST AND SECOND WIVES AS TO THE ADMINISTRATION
OF THE HUSBAND'S ESTATE.  THE MASSACHUSETTS COURT CONCLUDED THAT THE
SOUTH DAKOTA DECREE OF DIVORCE WAS VOID ON THE GROUND THAT THE HUSBAND
HAD NOT BEEN DOMICILED IN THAT STATE AND THAT, UNDER THE APPLICABLE
STATUTES OF MASSACHUSETTS, THE MASSACHUSETTS COURTS WERE NOT REQUIRED
TO GIVE RECOGNITION TO SUCH A DECREE.  THIS COURT AFFIRMED ON WRIT OF
ERROR BY A DIVIDED VOTE.  FN19    ON ITS FACTS, THE ANDREWS CASE
PRESENTS VARIATIONS FROM THE PRESENT SITUATION.  FN20  BUT INSOFAR AS
THE RULE OF THAT CASE MAY BE SAID TO BE INCONSISTENT WITH THE JUDGMENT
HEREIN ANNOUNCED, IT MUST BE REGARDED AS HAVING BEEN SUPERSEDED BY
SUBSEQUENT DECISIONS OF THIS COURT.  THE ANDREWS CASE WAS DECIDED PRIOR
TO THE CONSIDERABLE MODERN DEVELOPMENT OF THE LAW WITH RESPECT TO
FINALITY OF JURISDICTIONAL FINDINGS.  FN21  ONE OF THE DECISIONS UPON
WHICH THE MAJORITY OF THE COURT IN THAT CASE PLACED PRIMARY RELIANCE,
WISCONSIN V. PELICAN INSURANCE CO., 127 U.S. 265(1888), WAS, INSOFAR AS
PERTINENT, OVERRULED IN MILWAUKEE COUNTY V. WHITE CO., 296 U.S.
268(1935).  THE ANDREWS CASE, THEREFORE, MAY NOT BE REGARDED AS
DETERMINATIVE OF THE ISSUES BEFORE US. 

IT IS URGED FURTHER, HOWEVER, THAT BECAUSE WE ARE DEALING WITH
LITIGATION INVOLVING THE DISSOLUTION OF THE MARITAL RELATION, A
DIFFERENT RESULT IS DEMANDED FROM THAT WHICH MIGHT PROPERLY BE REACHED
IF THIS CASE WERE CONCERNED WITH OTHER TYPES OF LITIGATION.  IT IS
POINTED OUT THAT UNDER THE CONSTITUTION THE REGULATION AND CONTROL OF
MARITAL AND FAMILY RELATIONSHIPS ARE RESERVED TO THE STATES.  IT IS
URGED, AND PROPERLY SO, THAT THE REGULATION OF THE INCIDENTS OF THE
MARITAL RELATION INVOLVES THE EXERCISE BY THE STATES OF POWERS OF THE
MOST VITAL IMPORTANCE.  FINALLY, IT IS CONTENDED THAT A RECOGNITION OF
THE IMPORTANCE TO THE STATES OF SUCH POWERS DEMANDS THAT THE
REQUIREMENTS OF FULL FAITH AND CREDIT BE VIEWED IN SUCH A LIGHT AS TO
PERMIT AN ATTACK UPON A DIVORCE DECREE GRANTED BY A COURT OF A SISTER
STATE UNDER THE CIRCUMSTANCES OF THIS CASE EVEN WHERE THE ATTACK IS
INITIATED IN A SUIT BROUGHT BY THE DEFENDANT IN THE ORIGINAL
PROCEEDINGS.  FN22 

BUT THE RECOGNITION OF THE IMPORTANCE OF A STATE'S POWER TO DETERMINE
THE INCIDENTS OF BASIC SOCIAL RELATIONSHIPS INTO WHICH ITS
DOMICILIARIES ENTER DOES NOT RESOLVE THE ISSUES OF THIS CASE.  THIS IS
NOT A SITUATION IN WHICH A STATE HAS MERELY SOUGHT TO EXERT SUCH POWER
OVER A DOMICILIARY.  THIS IS, RATHER, A CASE INVOLVING INCONSISTENT
ASSERTIONS OF POWER BY COURTS OF TWO STATES OF THE FEDERAL UNION AND
THUS PRESENTS CONSIDERATIONS WHICH GO BEYOND THE INTERESTS OF LOCAL
POLICY, HOWEVER VITAL.  IN RESOLVING THE ISSUES HERE PRESENTED, WE DO
NOT CONCEIVE IT TO BE A PART OF OUR FUNCTION TO WEIGH THE RELATIVE
MERITS OF THE POLICIES OF FLORIDA AND MASSACHUSETTS WITH RESPECT TO
DIVORCE AND RELATED MATTERS.  NOR DO WE UNDERSTAND THE DECISIONS OF
THIS COURT TO SUPPORT THE PROPOSITION THAT THE OBLIGATION IMPOSED BY
ARTICLE IV, SEC. 1 OF THE CONSTITUTION AND THE ACT OF CONGRESS PASSED
THEREUNDER AMOUNTS TO SOMETHING LESS THAN THE DUTY TO ACCORD FULL FAITH
AND CREDIT TO DECREES OF DIVORCE ENTERED BY COURTS OF SISTER STATES. 
FN23  THE FULL FAITH AND CREDIT CLAUSE IS ONE OF THE PROVISIONS
INCORPORATED INTO THE CONSTITUTION BY ITS FRAMERS FOR THE PURPOSE OF
TRANSFORMING AN AGGREGATION OF INDEPENDENT, SOVEREIGN STATES INTO A
NATION.  FN24  IF IN ITS APPLICATION LOCAL POLICY MUST AT TIMES BE
REQUIRED TO GIVE WAY, SUCH "IS PART OF THE PRICE OF OUR FEDERAL
SYSTEM."  WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 302(1942).  FN25 

THIS IS NOT TO SAY THAT IN NO CASE MAY AN AREA BE RECOGNIZED IN WHICH
REASONABLE ACCOMMODATIONS OF INTEREST MAY PROPERLY BE MADE.  BUT AS
THIS COURT HAS HERETOFORE MADE CLEAR, THAT AREA IS OF LIMITED EXTENT. 
FN26  WE BELIEVE THAT IN PERMITTING AN ATTACK ON THE FLORIDA DIVORCE
DECREE WHICH AGAIN PUT IN ISSUE PETITIONER'S FLORIDA DOMICILE AND IN
REFUSING TO RECOGNIZE THE VALIDITY OF THAT DECREE, THE MASSACHUSETTS
COURTS HAVE ASSERTED A POWER WHICH CANNOT BE RECONCILED WITH THE
REQUIREMENTS OF DUE FAITH AND CREDIT.  WE BELIEVE THAT ASSURANCES THAT
SUCH A POWER WILL BE EXERCISED SPARINGLY AND WISELY RENDER IT NO LESS
REPUGNANT TO THE CONSTITUTIONAL COMMANDS. 

IT IS ONE THING TO RECOGNIZE AS PERMISSIBLE THE JUDICIAL
REEXAMINATION OF FINDINGS OF JURISDICTIONAL FACT WHERE SUCH FINDINGS
HAVE BEEN MADE BY A COURT OF A SISTER STATE WHICH HAS ENTERED A DIVORCE
DECREE IN EX PARTE PROCEEDINGS.  FN27  IT IS QUITE ANOTHER THING TO
HOLD THAT THE VITAL RIGHTS AND INTERESTS INVOLVED IN DIVORCE LITIGATION
MAY BE HELD IN SUSPENSE PENDING THE SCRUTINY BY COURTS OF SISTER STATES
OF FINDINGS OF JURISDICTIONAL FACT MADE BY A COMPETENT COURT IN
PROCEEDINGS CONDUCTED IN A MANNER CONSISTENT WITH THE HIGHEST
REQUIREMENTS OF DUE PROCESS AND IN WHICH THE DEFENDANT HAS
PARTICIPATED.  WE DO NOT CONCEIVE IT TO BE IN ACCORD WITH THE PURPOSES
OF THE FULL FAITH AND CREDIT REQUIREMENT TO HOLD THAT A JUDGMENT
RENDERED UNDER THE CIRCUMSTANCES OF THIS CASE MAY BE REQUIRED TO RUN
THE GANTLET OF SUCH COLLATERAL ATTACK IN THE COURTS OF SISTER STATES
BEFORE ITS VALIDITY OUTSIDE OF THE STATE WHICH RENDERED IT IS
ESTABLISHED OR REJECTED.  THAT VITAL INTERESTS ARE INVOLVED IN DIVORCE
LITIGATION INDICATES TO US THAT IT IS A MATTER OF GREATER RATHER THAN
LESSER IMPORTANCE THAT THERE SHOULD BE A PLACE TO END SUCH LITIGATION. 
FN28 AND WHERE A DECREE OF DIVORCE IS RENDERED BY A COMPETENT COURT
UNDER THE CIRCUMSTANCES OF THIS CASE, THE OBLIGATION OF FULL FAITH AND
CREDIT REQUIRES THAT SUCH LITIGATION SHOULD END IN THE COURTS OF THE
STATE IN WHICH THE JUDGMENT WAS RENDERED.  REVERSED. 

FN1  U.S. CONST. ART. IV, SEC. 1, PROVIDES:  "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." 

THE ACT OF MAY 26, 1790, 1 STAT. 122, AS AMENDED, R.S. SEC. 905, 28
U.S.C. SEC. 687, PROVIDES IN PART:  "  ...  AND THE SAID RECORDS AND
JUDICIAL PROCEEDINGS  ...  SHALL HAVE SUCH FAITH AND CREDIT GIVEN TO
THEM IN EVERY COURT WITHIN THE UNITED STATES AS THEY HAVE BY LAW OR
USAGE IN THE COURTS OF THE STATE FROM WHICH THEY ARE TAKEN." 

FN2  BY STATUTE, THE CIRCUIT COURTS, AS COURTS OF EQUITY, HAVE
JURISDICTION OF DIVORCE CAUSES.  FLORIDA STAT. ANN. SEC. 65.01. 
MELOCHE V. MELOCHE, 101 FLA. 659, 662, 133 SO. 339, 340(1931). 

FN3  SECTION 65.02 OF FLORIDA STAT. ANN. PROVIDES:  "IN ORDER TO
OBTAIN A DIVORCE THE COMPLAINANT MUST HAVE RESIDED NINETY DAYS IN THE
STATE OF FLORIDA BEFORE THE FILING OF THE BILL OF COMPLAINT."  THE
FLORIDA COURTS HAVE CONSTRUED THE STATUTORY REQUIREMENT OF RESIDENCE TO
BE THAT OF DOMICILE.  RESPONDENT DOES NOT CONTEND NOR DO WE FIND ANY
EVIDENCE THAT THE REQUIREMENTS OF "DOMICILE" AS DEFINED BY THE FLORIDA
CASES ARE OTHER THAN THOSE GENERALLY APPLIED OR DIFFER FROM THE TESTS
EMPLOYED BY THE MASSACHUSETTS COURTS.  WADE V. WADE, 93 FLA. 1004, 113
SO. 374(1927); EVANS V. EVANS, 141 FLA. 860, 194 SO. 215(1940); FOWLER
V. FOWLER, 156 FLA. 316, 22 SO.2D 817(1945). 

FN4  THE FIRST ALLEGATION OF RESPONDENT'S ANSWER STATED:  "THAT THE
PLAINTIFF IS NOT A BONA-FIDE LEGAL RESIDENT OF THE STATE OF FLORIDA AND
HAS NOT BEEN SUCH CONTINUOUSLY FOR MORE THAN THE NINETY DAYS
IMMEDIATELY PRECEDING THE FILING OF THE BILL OF COMPLAINT.  THAT ON OR
ABOUT APRIL 3, 1944, WHILE THE PARTIES WERE LIVING TOGETHER AS
RESIDENTS OF MONTEREY, MASSACHUSETTS, THE PLAINTIFF CAME TO FLORIDA
WITH THE CHILDREN OF THE PARTIES FOR A VISIT AND WITHOUT ANY EXPRESSED
INTENTION OF ESTABLISHING A SEPARATE RESIDENCE FROM THE DEFENDANT AND
HAS REMAINED IN FLORIDA EVER SINCE, BUT WITHOUT ANY INTENTION OF
BECOMING A BONA-FIDE RESIDENT OF FLORIDA." 

FN5  THE AGREEMENT PROVIDED THAT RESPONDENT SHOULD HAVE CUSTODY OF
THE CHILDREN DURING THE SCHOOL TERM OF EACH YEAR AND THAT PETITIONER
SHOULD BE GIVEN CUSTODY THROUGHOUT THE REST OF THE YEAR, SUBJECT TO THE
RIGHT OF BOTH PARENTS TO VISIT AT REASONABLE TIMES.  BEFORE THE FINAL
DECREE OF DIVORCE WAS ENTERED, RESPONDENT RETURNED TO MASSACHUSETTS
ACCOMPANIED BY THE TWO CHILDREN. 

FN6  IT IS SAID THAT THROUGHOUT MOST OF THE PROCEEDINGS RESPONDENT
DID NOT APPEAR IN THE COURTROOM BUT REMAINED "IN A SIDE ROOM." 

FN7  APPEALS LIE TO THE FLORIDA SUPREME COURT FROM FINAL DECREES OF
DIVORCE.  FLA. CONST. ART. V, SEC. 5.  AND SEE E.G., HOMAN V. HOMAN,
144 FLA. 371, 198 SO. 20(1940). 

FN8  THE ACTION WAS BROUGHT PURSUANT TO THE PROVISIONS OF MASS. GEN.
LAWS (TER.  ED.)  C. 209, SEC. 36. 

FN9  PETITIONER TESTIFIED THAT FOR MANY YEARS PRIOR TO HER DEPARTURE
FOR FLORIDA, RESPONDENT HAD MADE FREQUENT ALLUSIONS TO THE FACT THAT
PETITIONER'S MOTHER HAD BEEN COMMITTED TO A MENTAL INSTITUTION AND HAD
SUGGESTED THAT PETITIONER WAS REVEALING THE SAME TRAITS OF MENTAL
INSTABILITY.  PETITIONER TESTIFIED THAT AS A RESULT OF THESE REMARKS
AND OTHER ACTS OF CRUELTY, HER HEALTH HAD BEEN UNDERMINED AND THAT IT
HAD THEREFORE BECOME NECESSARY FOR HER TO LEAVE RESPONDENT.  IN ORDER
TO INSURE HER DEPARTURE, SHE HAD REPRESENTED THAT HER STAY IN FLORIDA
WAS TO BE ONLY TEMPORARY, BUT FROM THE OUTSET SHE HAD IN FACT INTENDED
NOT TO RETURN.  PETITIONER TESTIFIED FURTHER THAT BOTH BEFORE AND AFTER
THE FLORIDA DECREE OF DIVORCE HAD BEEN ENTERED, SHE HAD INTENDED TO
RESIDE PERMANENTLY IN FLORIDA AND THAT SHE AND PHELPS HAD RETURNED TO
MASSACHUSETTS ONLY AFTER RECEIVING A LETTER STATING THAT PHELPS' FATHER
WAS IN POOR HEALTH. 

FN10  320 MASS. 351, 69 N.E.2D 801(1946). 

FN11  SEE WILLIAMS V. NORTH CAROLINA, 325 U.S. 226, 233-234(1945);
CF. TREINIES V. SUNSHINE MINING CO., 308 U.S. 66, 78, NOTE 26(1939). 
NO FLORIDA CASE HAS BEEN CALLED TO OUR ATTENTION INVOLVING A COLLATERAL
ATTACK ON A DIVORCE DECREE QUESTIONING THE DOMICILE OF THE PARTIES, AND
HENCE THE JURISDICTION OF THE COURT WHICH ENTERED THE DECREE, WHERE
BOTH PARTIES APPEARED IN THE DIVORCE PROCEEDINGS.  SEE GENERALLY
EVERETTE V. PETTEWAY, 131 FLA. 516, 528-529, 179 SO. 666, 671
672(1938); STATE EX REL. GOODRICH CO. V. TRAMMELL, 140 FLA. 500, 505,
192 SO. 175, 177(1939).  BUT CF. CHISHOLM V. CHISHOLM, 98 FLA. 1196,
125 SO. 694(1929); DYE V. DOLBECK, 114 FLA. 866, 154 SO. 847(1934),
INVOLVING ATTACKS ON JURISDICTIONAL FINDINGS MADE IN EX PARTE DIVORCE
PROCEEDINGS. 

FN12  BELL V. BELL, 181 U.S. 175(1901). 

FN13  SEE NOTE 3 SUPRA. 

FN14  BALDWIN V. IOWA STATE TRAVELING MEN'S ASSOCIATION, 283 U.S.
522(1931): STOLL V. GOTTLIEB, 305 U.S. 165(1938); CHICOT COUNTY
DRAINAGE DISTRICT V. BAXTER STATE BANK, 308 U.S. 371(1940); SUNSHINE
ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381(1940); JACKSON V. IRVING
TRUST CO., 311 U.S. 494(1941).  AND SEE FORSYTH V. HAMMOND, 166 U.S.
506(1897); HEISER V. WOODRUFF, 327 U.S. 726(1946). 

FN15  AMERICAN SURETY CO. V. BALDWIN, 287 U.S. 156(1932); TREINIES V.
SUNSHINE MINING CO., 308 U.S. 66(1939).  AND SEE CHICAGO LIFE INSURANCE
CO. V. CHERRY, 244 U.S. 25(1917). 

FN16  DAVIS V. DAVIS, 305 U.S. 32, 40(1938).  AND SEE STOLL V.
GOTTLIEB, 305 U.S. 165, 172, NOTE 13(1938). 

FN17  SEE CASES DISCUSSED SUPRA. 

FN18  WE, OF COURSE, INTIMATE NO OPINION AS TO THE SCOPE OF
CONGRESSIONAL POWER TO LEGISLATE UNDER ARTICLE IV, SEC. 1 OF THE
CONSTITUTION.  SEE NOTE 1 SUPRA. 

FN19  JUSTICES BREWER, SHIRAS, AND PECKHAM DISSENTED.  MR. JUSTICE
HOLMES TOOK NO PART IN THE CASE. 

FN20  THUS, IN THE ANDREWS CASE, BEFORE THE DIVORCE DECREE WAS
ENTERED BY THE SOUTH DAKOTA COURT, THE DEFENDANT WITHDREW HER
APPEARANCE IN ACCORDANCE WITH A CONSENT AGREEMENT. 

FN21  SEE NOTE 14 SUPRA. 

FN22  BUT CF. WILLIAMS V. NORTH CAROLINA, 325 U.S. 226, 230(1945). 

FN23  DAVIS V. DAVIS, 305 U.S. 32, 40(1938); WILLIAMS V. NORTH
CAROLINA, 317 U.S. 287, 294(1942). 

FN24  MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268, 276-277(1935);
MAGNOLIA PETROLEUM CO. V. HUNT, 320 U.S. 430, 439(1943). 

FN25  BUT WE MAY WELL DOUBT THAT THE JUDGMENT WHICH WE HEREIN
ANNOUNCE WILL AMOUNT TO SUBSTANTIAL INTERFERENCE WITH STATE POLICY WITH
RESPECT TO DIVORCE.  MANY STATES WHICH HAVE HAD OCCASION TO CONSIDER
THE MATTER HAVE ALREADY RECOGNIZED THE IMPROPRIETY OF PERMITTING A
COLLATERAL ATTACK ON AN OUT-OF-STATE DIVORCE DECREE WHERE THE DEFENDANT
APPEARED AND PARTICIPATED IN THE DIVORCE PROCEEDINGS.  SEE, E.G.,
NORRIS V. NORRIS, 200 MINN. 246, 273 N.W. 708(1937); MILLER V. MILLER,
65 N.Y.S.2D 696(1946), AFFIRMED 271 APP. DIV. 974, 67 N.Y.S.2D
379(1947); COLE V. COLE, 96 N.J. EQ. 206, 124 A. 359(1924). 

FN26  BRODERICK V. ROSNER, 294 U.S. 629, 642(1935); WILLIAMS V. NORTH
CAROLINA, 317 U.S. 287, 294-295(1942). 

FN27  WILLIAMS V. NORTH CAROLINA, 325 U.S. 226(1945). 

FN28  CF. STOLL V. GOTTLIEB, 305 U.S. 165, 172(1938). 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE MURPHY CONCURS,
DISSENTING* . 

*(THIS IS ALSO A DISSENT TO COE V. COE, POST, P. 378.) 

WHAT MR. JUSTICE HOLMES SAID OF THE ILL-STARRED HADDOCK V. HADDOCK
MAY EQUALLY BE SAID HERE:  "I DO NOT SUPPOSE THAT CIVILIZATION WILL
COME TO AN END WHICHEVER WAY THIS CASE IS DECIDED."  201 U.S. 562,
628.  BUT, BELIEVING AS I DO THAT THE DECISION JUST ANNOUNCED IS
CALCULATED, HOWEVER UNWITTINGLY, TO PROMOTE PERJURY WITHOUT OTHERWISE
APPRECIABLY AFFECTING THE EXISTING DISHARMONIES AMONG THE FORTY-EIGHT
STATES IN RELATION TO DIVORCE, I DEEM IT APPROPRIATE TO STATE MY
VIEWS. 

NOT ONLY IS TODAY'S DECISION FRAUGHT WITH THE LIKELIHOOD OF UNTOWARD
CONSEQUENCES.  IT DISREGARDS A LAW THAT FOR A CENTURY HAS EXPRESSED THE
SOCIAL POLICY OF MASSACHUSETTS, AND LATTERLY OF OTHER STATES, IN A
DOMAIN WHICH UNDER OUR CONSTITUTION IS PECULIARLY THE CONCERN OF THE
STATES AND NOT OF THE NATION. 

IF ALL THAT WERE NECESSARY IN ORDER TO DECIDE THE VALIDITY IN ONE
STATE OF A DIVORCE GRANTED IN ANOTHER WAS TO READ THE FULL FAITH AND
CREDIT CLAUSE OF THE CONSTITUTION, GENERATIONS OF JUDGES WOULD NOT HAVE
FOUND THE PROBLEM SO TROUBLESOME AS THEY HAVE, NOR WOULD A DIVIDED
COURT HAVE SUCCESSIVELY PRONOUNCED A SERIES OF DISCORDANT DECISIONS. 
"FULL FAITH AND CREDIT" MUST BE GIVEN TO A JUDGMENT OF A SISTER STATE. 
BUT A "JUDGMENT" IMPLIES THE POWER OF THE STATE TO DEAL WITH THE
SUBJECT-MATTER IN CONTROVERSY.  A STATE COURT WHICH HAS ENTERED WHAT
PROFESSES TO BE A JUDGMENT MUST HAVE HAD SOMETHING ON WHICH TO ACT. 
THAT SOMETHING IS WHAT IS CONVEYED BY THE WORD "JURISDICTION," AND,
WHEN IT COMES TO DISSOLVING A MARRIAGE STATUS, THROUGHOUT THE ENGLISH
SPEAKING WORLD THE BASIS OF POWER TO ACT IS DOMICILE.  WHETHER OR NOT
IN A PARTICULAR SITUATION A PERSON IS DOMICILED IN A GIVEN STATE
DEPENDS ON CIRCUMSTANCES, AND CIRCUMSTANCES HAVE MYRIAD DIVERSITIES. 
BUT THERE IS A CONSENSUS OF OPINION AMONG ENGLISH-SPEAKING COURTS THE
WORLD OVER THAT DOMICILE REQUIRES SOME SENSE OF PERMANENCE OF
CONNECTION BETWEEN THE INDIVIDUAL WHO CLAIMS IT AND THE STATE WHICH HE
ASKS TO RECOGNIZE IT. 

IT WOULD CERTAINLY HAVE BEEN EASIER IF FROM THE BEGINNING THE FULL
FAITH AND CREDIT CLAUSE HAD BEEN CONSTRUED TO MEAN THAT THE ASSUMPTION
OF JURISDICTION BY THE COURTS OF A STATE WOULD BE CONCLUSIVE, SO THAT
EVERY OTHER STATE WOULD HAVE TO RESPECT IT.  BUT SUCH CERTAINLY HAS NOT
BEEN THE LAW SINCE 1873.  THOMPSON V. WHITMAN, 18 WALL.  457.  NOR WAS
IT THE LAW WHEN THIS COURT LAST CONSIDERED THE DIVORCE PROBLEM, IN
1945.  WILLIAMS V. NORTH CAROLINA, 325 U.S. 226.  A STATE THAT IS ASKED
TO ENFORCE THE ACTION OF ANOTHER STATE MAY APPROPRIATELY ASCERTAIN
WHETHER THAT OTHER STATE HAD POWER TO DO WHAT IT PURPORTED TO DO.  AND
IF THE ENFORCING STATE HAS AN INTEREST UNDER OUR CONSTITUTION IN REGARD
TO THE SUBJECT-MATTER THAT IS VITAL AND INTIMATE, IT SHOULD NOT BE
WITHIN THE POWER OF PRIVATE PARTIES TO FORECLOSE THAT INTEREST BY THEIR
PRIVATE ARRANGEMENT.  ANDREWS V. ANDREWS, 188 U.S. 14; CF. FALL V.
EASTIN, 215 U.S. 1; ALASKA PACKERS ASSOCIATION V. INDUSTRIAL ACCIDENT
COMMISSION, 294 U.S. 532. 

IF THE MARRIAGE CONTRACT WERE NO DIFFERENT FROM A CONTRACT TO SELL AN
AUTOMOBILE, THE PARTIES THERETO MIGHT WELL BE PERMITTED TO BARGAIN AWAY
ALL INTERESTS INVOLVED, IN OR OUT OF COURT.  BUT THE STATE HAS AN
INTEREST IN THE FAMILY RELATIONS OF ITS CITIZENS VASTLY DIFFERENT FROM
THE INTEREST IT HAS IN AN ORDINARY COMMERCIAL TRANSACTION.  THAT
INTEREST CANNOT BE BARTERED OR BARGAINED AWAY BY THE IMMEDIATE PARTIES
TO THE CONTROVERSY BY A DEFAULT OR AN ARRANGED CONTEST IN A PROCEEDING
FOR DIVORCE IN A STATE TO WHICH THE PARTIES ARE STRANGERS.  THEREFORE,
THE CONSTITUTIONAL POWER OF A STATE TO DETERMINE THE MARRIAGE STATUS OF
TWO OF ITS CITIZENS SHOULD NOT BE DEEMED FORECLOSED BY A PROCEEDING
BETWEEN THE PARTIES IN ANOTHER STATE, EVEN THOUGH IN OTHER TYPES OF
CONTROVERSY CONSIDERATIONS MAKING IT DESIRABLE TO PUT AN END TO
LITIGATION MIGHT FORECLOSE THE PARTIES THEMSELVES FROM REOPENING THE
DISPUTE.  FN1  I CANNOT AGREE THAT THE CONSTITUTION FORBIDS A STATE
FROM INSISTING THAT IT IS NOT BOUND BY ANY SUCH PROCEEDINGS IN A
DISTANT STATE WANTING IN THE POWER THAT DOMICILE ALONE GIVES, AND THAT
ITS COURTS NEED NOT HONOR SUCH AN INTRINSICALLY SHAM PROCEEDING, NO
MATTER WHO BRINGS THE ISSUE TO THEIR ATTENTION. 

THAT SOCIETY HAS A VITAL INTEREST IN THE DOMESTIC RELATIONS OF ITS
MEMBERS WILL BE ALMOST IMPATIENTLY CONCEDED N2.  BUT IT IS NOT ENOUGH
TO PAY LIP-SERVICE TO THE COMMONPLACE AS AN ABSTRACTION.  ITS
IMPLICATIONS MUST BE RESPECTED.  THEY DEFINE OUR PROBLEMS.  NOWHERE IN
THE UNITED STATES, NOT EVEN IN THE STATES WHICH GRANT DIVORCES MOST
FREELY, MAY A HUSBAND AND WIFE RESCIND THEIR MARRIAGE AT WILL AS THEY
MIGHT A COMMERCIAL CONTRACT.  EVEN IF ONE THOUGHT THAT SUCH A VIEW OF
THE INSTITUTION OF MARRIAGE WAS SOCIALLY DESIRABLE, IT COULD SCARCELY
BE HELD THAT SUCH A PERSONAL VIEW WAS INCORPORATED INTO THE
CONSTITUTION OR INTO THE LAW FOR THE ENFORCEMENT OF THE FULL FAITH AND
CREDIT CLAUSE, ENACTED BY THE FIRST CONGRESS.  1 STAT. 122, 28 U.S.C.
SEC. 687.  THAT WHEN THE CONSTITUTION WAS ORDAINED DIVORCE WAS A MATTER
OF THE DEEPEST PUBLIC CONCERN, RATHER THAN DEEMED A PERSONAL DISPUTE
BETWEEN PRIVATE PARTIES, IS SHOWN BY THE FACT THAT IT COULD BE SECURED
ALMOST EXCLUSIVELY ONLY BY SPECIAL ENACTMENTS OF THE SEVERAL
LEGISLATURES AND NOT THROUGH LITIGATION IN COURT.  SEE IRELAND AND
GALINDEZ, DIVORCE IN THE AMERICAS (1947) P. 1. 

AS A CONTRACT, THE MARRIAGE CONTRACT IS UNIQUE IN THE LAW.  TO
ASSIMILATE IT TO AN ORDINARY PRIVATE CONTRACT CAN ONLY MISLEAD.  SEE
MAYNARD V. HILL, 125 U.S. 190, 210-14; RESTATEMENT OF THE LAW,
CONTRACTS, SECS. 584, 586; CF. DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT. 
518, 627-29.  THE PARTIES TO A MARRIAGE DO NOT COMPREHEND BETWEEN THEM
ALL THE INTERESTS THAT THE RELATION CONTAINS.  SOCIETY SANCTIONS THE
INSTITUTION AND CREATES AND ENFORCES ITS BENEFITS AND DUTIES.  AS A
MATTER OF LAW, SOCIETY IS REPRESENTED BY THE PERMANENT HOME STATE OF
THE PARTIES, IN OTHER WORDS, THAT OF THEIR DOMICILE.  IN THESE CASES
THAT STATE WAS MASSACHUSETTS. 

MASSACHUSETTS HAS SEEN FIT TO SUBJECT ITS CITIZENS TO THE FOLLOWING
LAW: 

"A DIVORCE DECREED IN ANOTHER JURISDICTION ACCORDING TO THE LAWS
THEREOF BY A COURT HAVING JURISDICTION OF THE CAUSE AND OF BOTH THE
PARTIES SHALL BE VALID AND EFFECTUAL IN THIS COMMONWEALTH; BUT IF AN
INHABITANT OF THIS COMMONWEALTH GOES INTO ANOTHER JURISDICTION TO
OBTAIN A DIVORCE FOR A CAUSE OCCURRING HERE WHILE THE PARTIES RESIDED
HERE, OR FOR A CAUSE WHICH WOULD NOT AUTHORIZE A DIVORCE BY THE LAWS OF
THIS COMMONWEALTH, A DIVORCE SO OBTAINED SHALL BE OF NO FORCE OR EFFECT
IN THIS COMMONWEALTH."  MASS. GEN. LAWS C. 208, SEC. 39(1932). 

THIS STATUTE, IN SUBSTANCE,  FN3  WAS FIRST ENACTED IN 1835, AND EVEN
THEN MERELY FORMALIZED A PRIOR RULE OF JUDICIAL ORIGIN.  CF. HANOVER V.
TURNER, 14 MASS. 227; REPORT OF THE COMMISSIONERS APPOINTED TO REVISE
THE GENERAL STATUTES OF THE COMMONWEALTH, PT. II, P. 123; 2 KENT,
COMMENTARIES, LECT.  27,*  108-*109.  THE UNIFORM ANNULMENT OF
MARRIAGES AND DIVORCE ACT,  FN4 PASSED BY DELAWARE N5, NEW JERSEY,  FN6
AND WISCONSIN,  FN7  IS ALMOST IDENTICAL, AS IS A MAINE STATUTE  FN8
ON THE SAME SUBJECT. 

MASSACHUSETTS SAYS THROUGH THIS STATUTE THAT A PERSON WHO ENJOYS ITS
OTHER INSTITUTIONS BUT IS IRKED BY ITS LAWS CONCERNING THE SEVERANCE OF
THE MARRIAGE TIE, MUST EITHER MOVE HIS HOME TO SOME OTHER STATE WITH
MORE CONGENIAL LAWS, OR REMAIN AND ABIDE BY THE LAWS OF MASSACHUSETTS. 
HE CANNOT PLAY DUCKS AND DRAKES WITH THE STATE, BY LEAVING IT JUST LONG
ENOUGH TO TAKE ADVANTAGE OF A PROCEEDING ELSEWHERE, DEVISED IN THE
INTERESTS OF A QUICK DIVORCE, INTENDING ALL THE TIME TO RETAIN
MASSACHUSETTS AS HIS HOME, AND THEN RETURN THERE, RESUME TAKING
ADVANTAGE OF SUCH OF ITS INSTITUTIONS AS HE FINDS CONGENIAL BUT ASSERT
HIS FREEDOM FROM THE RESTRAINTS OF ITS POLICIES CONCERNING SEVERANCE OF
THE MARRIAGE TIE.  MASSACHUSETTS HAS A RIGHT TO DEFINE THE TERMS ON
WHICH IT WILL GRANT DIVORCES, AND TO REFUSE TO RECOGNIZE DIVORCES
GRANTED BY OTHER STATES TO PARTIES WHO AT THE TIME ARE STILL
MASSACHUSETTS DOMICILIARIES.  HAS IT NOT ALSO THE RIGHT TO FRUSTRATE
EVASION OF ITS POLICIES BY THOSE OF ITS PERMANENT RESIDENTS WHO LEAVE
THE STATE TO CHANGE THEIR SPOUSES RATHER THAN TO CHANGE THEIR HOMES,
MERELY BECAUSE THEY GO THROUGH A LUKEWARM OR FEIGNED CONTEST OVER
JURISDICTION? 

THE NUB OF THE WILLIAMS DECISION WAS THAT THE STATE OF DOMICILE HAS
AN INDEPENDENT INTEREST IN THE MARITAL STATUS OF ITS CITIZENS THAT
NEITHER THEY NOR ANY OTHER STATE WITH WHICH THEY MAY HAVE A TRANSITORY
CONNECTION MAY ABROGATE AGAINST ITS WILL.  ITS INTEREST IS NOT LESS
BECAUSE BOTH PARTIES TO THE MARITAL RELATIONSHIP INSTEAD OF ONE SOUGHT
TO EVADE ITS LAWS.  IN THE WILLIAMS CASE, IT WAS NOT THE INTEREST OF
MRS. WILLIAMS, OR THAT OF MR. HENDRYX, THAT NORTH CAROLINA ASSERTED. 
IT WAS THE INTEREST OF THE PEOPLE OF NORTH CAROLINA.  THE SAME IS TRUE
HERE OF THE INTEREST OF MASSACHUSETTS.  FN9  WHILE THE STATE'S INTEREST
MAY BE EXPRESSED IN CRIMINAL PROSECUTIONS, WITH ITSELF FORMALLY A PARTY
AS IN THE WILLIAMS CASE, THE STATE ALSO EXPRESSES ITS SOVEREIGN POWER
WHEN IT SPEAKS THROUGH ITS COURTS IN A CIVIL LITIGATION BETWEEN PRIVATE
PARTIES.  CF. SHELLEY V. KRAEMER, 334 U.S. 1. 

SURELY THERE IS INVOLVED HERE AN EXERCISE BY MASSACHUSETTS OF ITS
POLICY CONCERNING THE TERMINATION OF MARRIAGE BY ITS OWN CITIZENS.  THE
FRAMERS LEFT THAT POWER OVER DOMESTIC RELATIONS IN THE SEVERAL STATES,
AND EVERY EFFORT TO WITHDRAW IT FROM THE STATES WITHIN THE PAST SIXTY
YEARS HAS FAILED.  FN10  AN AMERICAN CITIZEN MAY CHANGE HIS DOMICILE
FROM ONE STATE TO ANOTHER.  AND SO, A STATE MUST RESPECT ANOTHER
STATE'S VALID DIVORCE DECREE EVEN THOUGH IT CONCERNS ITS FORMER
CITIZENS.  BUT THE REAL QUESTION HERE IS WHETHER THE FULL FAITH AND
CREDIT CLAUSE CAN BE USED AS A LIMITATION ON THE POWER OF A STATE OVER
ITS CITIZENS WHO DO NOT CHANGE THEIR DOMICILE, WHO DO NOT REMOVE TO
ANOTHER STATE, BUT WHO LEAVE THE STATE ONLY LONG ENOUGH TO ESCAPE THE
RIGORS OF ITS LAWS, OBTAIN A DIVORCE, AND THEN SCURRY BACK.  TO HOLD
THAT THIS MASSACHUSETTS STATUTE CONTRAVENES THE FULL FAITH AND CREDIT
CLAUSE IS TO SAY THAT THAT STATE HAS SO SLIGHT A CONCERN IN THE
CONTINUANCE OR TERMINATION OF THE MARITAL RELATIONSHIPS OF ITS
DOMICILIARIES THAT ITS INTEREST MAY BE FORECLOSED BY AN ARRANGED
LITIGATION BETWEEN THE PARTIES IN WHICH IT WAS NOT REPRESENTED.  FN11 

TODAY'S DECISION MAY STIR HOPE OF CONTRIBUTING TOWARD GREATER
CERTAINTY OF STATUS OF THOSE DIVORCED.  BUT WHEN PEOPLE CHOOSE TO AVAIL
THEMSELVES OF LAWS LAXER THAN THOSE OF THE STATE IN WHICH THEY
PERMANENTLY ABIDE, AND WHERE, BARRING ONLY THE INTERLUDE NECESSARY TO
GET A DIVORCE, THEY CHOOSE TO CONTINUE TO ABIDE, DOUBTS AND CONFLICTS
ARE INEVITABLE, SO LONG AS THE DIVORCE LAWS OF THE FORTY-EIGHT STATES
REMAIN DIVERSE, AND SO LONG AS WE RESPECT THE LAW THAT A JUDGMENT
WITHOUT JURISDICTIONAL FOUNDATION IS NOT CONSTITUTIONALLY ENTITLED TO
RECOGNITION EVERYWHERE.  THESE ARE DIFFICULTIES, AS THIS COURT HAS
OFTEN REMINDED, INHERENT IN OUR FEDERAL SYSTEM, IN WHICH GOVERNMENTAL
POWER OVER DOMESTIC RELATIONS IS NOT GIVEN TO THE CENTRAL GOVERNMENT. 
UNIFORMITY REGARDING DIVORCE IS NOT WITHIN THE POWER OF THIS COURT TO
ACHIEVE SO LONG AS "THE DOMESTIC RELATIONS OF HUSBAND AND WIFE  ...
WERE MATTERS RESERVED TO THE STATES."  OHIO EX REL. POPOVICI V. AGLER,
280 U.S. 379, 384; IN RE BURRUS, 136 U.S. 586, 593-94.  FN12  AND SO
LONG AS THE CONGRESS HAS NOT EXERCISED ITS POWERS UNDER THE FULL FAITH
AND CREDIT CLAUSE TO MEET THE SPECIAL PROBLEMS RAISED BY DIVORCE
DECREES, THIS COURT CANNOT THROUGH ITS ADJUDICATIONS ACHIEVE THE RESULT
SOUGHT TO BE ACCOMPLISHED BY A LONG TRAIN OF ABORTIVE EFFORTS AT
LEGISLATIVE AND CONSTITUTIONAL REFORM.  FN13  TO ATTEMPT TO SHAPE
POLICY SO AS TO AVOID DISHARMONIES IN OUR DIVORCE LAWS WAS NOT A POWER
ENTRUSTED TO US, NOR IS THE JUDICIARY COMPETENT TO EXERCISE IT.  COURTS
ARE NOT EQUIPPED TO PURSUE THE PATHS FOR DISCOVERING WISE POLICY.  A
COURT IS CONFINED WITHIN THE BOUNDS OF A PARTICULAR RECORD, AND IT
CANNOT EVEN SHAPE THE RECORD.  ONLY FRAGMENTS OF A SOCIAL PROBLEM ARE
SEEN THROUGH THE NARROW WINDOWS OF A LITIGATION.  HAD WE INNATE OR
ACQUIRED UNDERSTANDING OF A SOCIAL PROBLEM IN ITS ENTIRETY, WE WOULD
NOT HAVE AT OUR DISPOSAL ADEQUATE MEANS FOR CONSTRUCTIVE SOLUTION.  THE
ANSWER TO SO TANGLED A PROBLEM AS THAT OF OUR CONFLICTING DIVORCE LAWS
IS NOT TO BE ACHIEVED BY THE SIMPLE JUDICIAL RESOURCES OF EITHER/OR -
THIS DECREE IS GOOD AND MUST BE RESPECTED, THAT ONE IS BAD AND MAY BE
DISREGARDED.  WE CANNOT DRAW ON THE AVAILABLE POWER FOR SOCIAL
INVENTION AFFORDED BY THE CONSTITUTION FOR DEALING ADEQUATELY WITH THE
PROBLEM, BECAUSE THE POWER BELONGS TO THE CONGRESS AND NOT TO THE
COURT.  THE ONLY WAY IN WHICH THIS COURT CAN ACHIEVE UNIFORMITY, IN THE
ABSENCE OF CONGRESSIONAL ACTION OR CONSTITUTIONAL AMENDMENT, IS BY
PERMITTING THE STATES WITH THE LAXEST DIVORCE LAWS TO IMPOSE THEIR
POLICIES UPON ALL OTHER STATES.  WE CANNOT AS JUDGES BE IGNORANT OF
THAT WHICH IS COMMON KNOWLEDGE TO ALL MEN.  WE CANNOT CLOSE OUR EYES TO
THE FACT THAT CERTAIN STATES MAKE AN INDUSTRY OF THEIR EASY DIVORCE
LAWS, AND ENCOURAGE INHABITANTS OF OTHER STATES TO OBTAIN "QUICKIE"
DIVORCES WHICH THEIR HOME STATES DENY THEM.  FN14 TO PERMIT SUCH STATES
TO BIND ALL OTHERS TO THEIR DECREES WOULD ENDOW WITH CONSTITUTIONAL
SANCTITY A GRESHAM'S LAW OF DOMESTIC RELATIONS. 

FORTUNATELY, TODAY'S DECISION DOES NOT GO THAT FAR.  BUT ITS
PRACTICAL RESULT WILL BE TO OFFER NEW INDUCEMENTS FOR CONDUCT BY
PARTIES AND COUNSEL, WHICH, IN ANY OTHER TYPE OF LITIGATION, WOULD BE
REGARDED AS PERJURY, BUT WHICH IS NOT SO REGARDED WHERE DIVORCE IS
INVOLVED BECAUSE LADIES AND GENTLEMEN INDULGE IN IT.  BUT IF THE
DOCTRINE OF RES JUDICATA AS TO JURISDICTIONAL FACTS IN CONTROVERSIES
INVOLVING EXCLUSIVELY PRIVATE INTERESTS AS INFUSED INTO THE FULL FAITH
AND CREDIT CLAUSE IS APPLIED TO DIVORCE DECREES SO AS TO FORECLOSE
SUBSEQUENT INQUIRY INTO JURISDICTION, THERE IS NEITHER LOGIC NOR REASON
NOR PRACTICAL DESIRABILITY IN NOT TAKING THE ENTIRE DOCTRINE OVER.  RES
JUDICATA FORECLOSES RELITIGATION IF THERE HAS BEEN AN OPPORTUNITY TO
LITIGATE ONCE, WHETHER OR NOT IT HAS BEEN AVAILED OF, OR CARRIED AS FAR
AS POSSIBLE.  CROMWELL V. COUNTY OF SAC, 94 U.S. 351; CHICOT COUNTY
DRAINAGE DISTRICT V. BAXTER STATE BANK, 308 U.S. 371.  FN15  AND IT
APPLIES TO QUESTIONS OF JURISDICTION OF SUBJECT MATTER AS WELL AS TO
THAT OF PERSONS.  STOLL V. GOTTLIEB, 305 U.S. 165; TREINIES V. SUNSHINE
MINING CO., 308 U.S. 66.  WHY SHOULD IT NOT APPLY WHERE THERE HAS BEEN
A WASTED OPPORTUNITY TO LITIGATE, BUT SHOULD APPLY WHERE THE FORM OF A
CONTEST HAS BEEN GONE THROUGH?  FN16  OR IF MORE THAN FORM IS REQUIRED,
HOW MUCH OF A CONTEST MUST IT BE?  MUST THE CONTEST BE BELLICOSE OR MAY
IT BE PACIFIC?  MUST IT BE FIERCE OR MAY IT BE TEPID?  MUST THERE BE A
CLOUD OF WITNESSES TO NEGATIVE THE TESTIMONY OF THE PLAINTIFF, OR MAY A
SINGLE DOUBTER BE ENOUGH?  CERTAINLY IF THE CONSIDERATIONS THAT
ESTABLISH RES JUDICATA AS BETWEEN PRIVATE LITIGANTS IN THE ORDINARY
SITUATIONS APPLY TO THE VALIDITY OF A DIVORCE AGAINST THE PUBLIC POLICY
OF THE STATE OF DOMICILE, IT CANNOT MAKE A RATIONAL DIFFERENCE THAT THE
QUESTION OF DOMICILE IS CONTESTED WITH BAD FEELING RATHER THAN AMICABLY
ADJUSTED.  THE ESSENCE OF THE MATTER IS THAT THROUGH THE DEVICE OF A
CONSENT DECREE A POLICY OF VITAL CONCERN TO STATES SHOULD NOT BE
ALLOWED TO BE DEFIED WITH THE SANCTION OF THIS COURT.  IF PERCHANCE THE
COURT LEAVES OPEN THE RIGHT OF A STATE TO PROVE FRAUD IN THE ORDINARY
SENSE - NAMELY, THAT A MOCK CONTEST WAS WON BY PREARRANGEMENT - THE
CLAIM FALLS THAT TODAY'S DECISION WILL SUBSTANTIALLY RESTRICT THE AREA
OF UNCERTAINTY AS TO THE VALIDITY OF DIVORCES.  IF THE COURT SEEKS TO
AVOID THIS RESULT BY HOLDING THAT A PARTY TO A FEIGNED LEGAL CONTEST
CANNOT QUESTION IN HIS HOME STATE THE GOOD FAITH BEHIND AN ADJUDICATION
OF DOMICILE IN ANOTHER STATE, SUCH HOLDING IS BOUND TO ENCOURAGE FRAUD
AND COLLUSION STILL FURTHER. 

IN CONSIDERING WHETHER THE IMPORTANCE OF THE ASSERTED UNCERTAINTIES
OF MARITAL STATUS UNDER EXISTING LAW IS SUFFICIENT TO JUSTIFY THIS
RESULT, IT IS IMPORTANT TO THINK QUANTITATIVELY, NOT DRAMATICALLY.  ONE
WOULD SUPPOSE THAT THE DIVERSITY IN THE DIVORCE LAWS OF THE FORTY-EIGHT
STATES, AND THE UNWILLINGNESS OF MOST OF THEM TO ALLOW THE FEW WHICH
MAKE AN INDUSTRY OUT OF GRANTING DIVORCE TO IMPOSE THEIR POLICIES UPON
THE OTHERS, UNDERMINES THE STRUCTURE OF THE FAMILY AND RENDERS INSECURE
ALL MARRIAGES OF PREVIOUSLY DIVORCED PERSONS IN THE UNITED STATES.  THE
PROPORTION OF DIVORCED PEOPLE WHO HAVE CAUSE TO WORRY IS SMALL INDEED. 
THOSE WHO WERE DIVORCED AT HOME HAVE NO PROBLEM.  THOSE WHOSE DESIRE TO
BE RID OF A SPOUSE COINCIDED WITH AN UNRELATED SHIFT OF DOMICILE WILL
HARDLY BE SUSPECT WHERE, AS IS USUALLY TRUE, THE STATE TO WHICH THEY
MOVED DID NOT AFFORD EASY DIVORCES OR REQUIRED A LONG RESIDENCE
PERIOD.  ACTUALLY, THERE ARE BUT FIVE STATES, ARKANSAS, FLORIDA, IDAHO,
NEVADA, AND WYOMING, IN WHICH DIVORCES MAY BE EASILY OBTAINED ON LESS
THAN ONE YEAR'S RESIDENCE.  FN17  INDOVINA AND DALTON, STATUTES OF ALL
STATES AND TERRITORIES WITH ANNOTATIONS ON MARRIAGE-ANNULMENT-DIVORCE
(SANTA MONICA, 1945).  THESE FIVE STATES ACCOUNTED FOR ONLY 24,370
DIVORCES IN 1940, BUT 9% OF THE NATIONAL TOTAL.  DEPT. OF COMMERCE,
STATISTICAL ABSTRACT OF THE UNITED STATES (1946) P. 94.  THE NUMBER OF
DIVORCES GRANTED IN ARKANSAS, IDAHO, AND WYOMING IS SMALL ENOUGH TO
INDICATE THE NORMAL INCIDENCE OF DIVORCE AMONG THEIR PERMANENT
POPULATION, WITH ONLY FEW TRANSIENTS TAKING ADVANTAGE OF THEIR DIVORCE
LAWS.  NEVADA AND FLORIDA THUS ATTRACT VIRTUALLY ALL THE NON-RESIDENT
DIVORCE BUSINESS.  YET, BETWEEN THEM, ONLY 16,375 DIVORCES WERE GRANTED
IN 1940, 6% OF THE TOTAL.  IBID.  SOME OF THESE PEOPLE WERE UNDOUBTEDLY
PERMANENTLY SETTLED IN THOSE STATES, AND HAVE NOTHING TO FEAR.  OTHERS
MAY HAVE MOVED TO THOSE STATES, INTENDING TO MAKE THEIR PERMANENT HOMES
THERE, AND HAVE SINCE REMAINED.  THEY WERE AMPLY PROTECTED BY THE FULL
FAITH AND CREDIT CLAUSE EVEN BEFORE TODAY'S DECISION.  THE ONLY PERSONS
AT ALL INSECURE ARE THAT SMALL MINORITY WHO TEMPORARILY LEFT THEIR HOME
STATES FOR A STATE - ONE OF THE FEW - OFFERING QUICK AND EASY DIVORCE,
OBTAINED ONE, AND DEPARTED.  IS THEIR SECURITY SO IMPORTANT TO THE
NATION THAT WE MUST SAFEGUARD IT EVEN AT THE PRICE OF DEPRIVING THE
GREAT MAJORITY OF STATES WHICH DO NOT OFFER BARGAIN-COUNTER DIVORCES OF
THE RIGHT TO DETERMINE THE LAWS OF DOMESTIC RELATIONS APPLICABLE TO
THEIR CITIZENS? 

EVEN TO A BELIEVER IN THE DESIRABILITY OF EASIER DIVORCE - AN ISSUE
THAT IS NOT OUR CONCERN - THIS DECISION SHOULD BRING LITTLE SOLACE.  IT
OFFERS A WAY OUT ONLY TO THAT SMALL PORTION OF THOSE UNHAPPILY MARRIED
WHO ARE SUFFICIENTLY WEALTHY TO BE ABLE TO AFFORD A TRIP TO NEVADA OR
FLORIDA, AND A SIX-WEEK OR THREE-MONTH STAY THERE.  FN18 

OF COURSE, MASSACHUSETTS MAY NOT DETERMINE THE QUESTION OF DOMICILE
IN DISREGARD OF WHAT HER SISTER STATES HAVE FOUND.  A TRIAL DE NOVO OF
THIS ISSUE WOULD NOT SATISFY THE REQUIREMENTS WHICH WE LAID DOWN IN THE
SECOND WILLIAMS CASE, 325 U.S. AT 236.  NOR CAN MASSACHUSETTS MAKE
FINDINGS ON THIS ISSUE WHICH PRECLUDE REEXAMINATION BY THIS COURT, NOR
MAY IT, THROUGH PREJUDICE IN FAVOR OF ITS OWN POLICIES, STRAIN THE
FACTS TO FIND CONTINUANCE OF THE TIE BETWEEN THE PARTIES AND ITSELF. 
BUT THE RECORDS IN THESE CASES DO NOT JUSTIFY THE CONCLUSION THAT
MASSACHUSETTS HAS BEEN REMISS IN ITS DUTY OF RESPECT.  IT IS TRUE THAT
ITS COURTS DID NOT EMPLOY A FORMAL LEGAL JARGON AND SAY THAT THERE WAS
A PRESUMPTION IN FAVOR OF THE FINDINGS OF FLORIDA OR NEVADA AND THAT
THIS PRESUMPTION HAD BEEN OVERCOME BY THE EVIDENCE.  BUT THE
CONSTITUTION DEMANDS COMPLIANCE, NOT A FORM OF WORDS.  TO ASCERTAIN
WHETHER IN FACT THERE IS A REAL BASIS FOR SAYING THAT MASSACHUSETTS DID
NOT ACCORD PROPER RECOGNITION TO NEVADA'S AND FLORIDA'S FINDINGS, WE
MUST TURN TO THE RECORDS AND DISCOVER FOR OURSELVES JUST HOW MUCH
WARRANT THERE WAS FOR THEIR FINDINGS OF DOMICILE. 

THE PETITIONER AND RESPONDENT IN SHERRER V. SHERRER WERE MARRIED IN
NEW JERSEY IN 1930, AND MOVED TO MONTEREY, MASSACHUSETTS, IN 1932,
WHERE THEY LIVED TOGETHER UNTIL 1944.  THEY HAD TWO CHILDREN.  THERE
WAS EVIDENCE THAT THEIR RELATIONSHIP BECAME LESS THAN HARMONIOUS
TOWARDS THE END OF THIS PERIOD, THAT MRS. SHERRER WAS TROUBLED BY A
SINUS INFECTION AND HAD BEEN ADVISED BY A PHYSICIAN TO GO TO FLORIDA,
AND THAT SHE CONSULTED A MASSACHUSETTS ATTORNEY ABOUT DIVORCE BEFORE
LEAVING.  IN MARCH, 1944, SHE TOLD SHERRER THAT SHE WISHED TO TAKE A
TRIP TO FLORIDA FOR A MONTH'S REST AND WANTED TO TAKE THE CHILDREN
ALONG.  SHE LATER TESTIFIED THAT SHE HAD INTENDED EVEN THEN TO GO TO
FLORIDA TO STAY, BUT HAD LIED IN ORDER TO OBTAIN HER HUSBAND'S
CONSENT.  HIS CONSENT AND THE NECESSARY FUNDS WERE FORTHCOMING.  ON
APRIL 3, 1944, MRS. SHERRER AND THE CHILDREN LEFT FOR FLORIDA, TAKING
ALONG A SUITCASE AND A SMALL BAG, BUT LEAVING BEHIND A TRUNK, SOME
HOUSEDRESSES, AND MUCH OF THE CHILDREN'S CLOTHING.  THEY ARRIVED THE
FOLLOWING DAY.  SHE RENTED AN APARTMENT IN ST. PETERSBURG, WHICH THEY
OCCUPIED FOR ABOUT THREE WEEKS, THEN MOVED INTO A FURNISHED COTTAGE AND
LATER INTO ANOTHER FURNISHED COTTAGE. 

ABOUT A WEEK AFTER MRS. SHERRER'S DEPARTURE, ONE PHELPS, WHO HAD
PREVIOUSLY BEEN AT LEAST AN ACQUAINTANCE OF HERS, KNOWING THAT SHE HAD
GONE TO ST. PETERSBURG, WENT THERE, MET HER SOON AFTER, AND SAW HER
FREQUENTLY.  ON APRIL 20, SHE WROTE TO HER HUSBAND THAT SHE DID NOT
CARE TO GO BACK TO HIM, AND RETURNED THE MONEY FOR TRAIN FARE WHICH HE
HAD SENT.  SHE SENT HER OLDER DAUGHTER TO SCHOOL AND TOOK A JOB AS A
WAITRESS.  PHELPS FOUND EMPLOYMENT IN A LUMBER YARD. 

FLORIDA LAW PERMITS INSTITUTION OF PROCEEDINGS FOR DIVORCE AFTER
NINETY DAYS' BONA FIDE RESIDENCE IN THE STATE.  ON JULY 6, NINETY-THREE
DAYS AFTER HER ARRIVAL IN THE STATE, MRS. SHERRER CONSULTED A FLORIDA
ATTORNEY, HAD THE NECESSARY PAPERS DRAWN UP, AND FILED A LIBEL FOR
DIVORCE THE SAME DAY.  SHERRER, RECEIVING NOTICE BY MAIL, RETAINED
FLORIDA COUNSEL, WHO ENTERED A GENERAL APPEARANCE AND FILED AN ANSWER,
WHICH DENIED MRS. SHERRER'S ALLEGATIONS AS TO RESIDENCE.  THE CASE WAS
SET FOR HEARING ON NOVEMBER 14.  ON NOVEMBER 9, SHERRER ARRIVED ON THE
SCENE.  HE AND HIS WIFE ENTERED INTO A STIPULATION, SUBJECT TO THE
APPROVAL OF THE COURT, PROVIDING FOR CUSTODY OF THE CHILDREN IN HIM
DURING THE SCHOOL YEAR AND IN HER DURING SUMMER VACATIONS.  AT THE
HEARING, SHERRER'S ATTORNEY WAS PRESENT, AND SHERRER REMAINED IN A SIDE
ROOM.  THE ATTORNEY DID NOT CROSS-EXAMINE MRS. SHERRER OR OFFER
EVIDENCE AS TO EITHER JURISDICTION OR THE MERITS, OTHER THAN THE
STIPULATION REGARDING CUSTODY OF THE CHILDREN.  SHERRER WAS CALLED INTO
THE COURTROOM AND QUESTIONED AS TO HIS ABILITY TO LOOK AFTER THE
CHILDREN DURING THE SCHOOL YEAR.  THE HEARING WAS CLOSED, THE DECREE
BEING HELD UP PENDING FILING OF A DEPOSITION BY MRS. SHERRER.  ON
NOVEMBER 19, SHERRER RETURNED TO MASSACHUSETTS WITH THE CHILDREN.  ON
NOVEMBER 29, THE DEPOSITION WAS FILED AND THE DECREE ENTERED.  ON
DECEMBER 1, THE PETITIONER MARRIED PHELPS AND THE COUPLE TOOK UP
RESIDENCE IN THE COTTAGE WHICH SHE AND THE CHILDREN HAD PREVIOUSLY
OCCUPIED. 

THERE THEY REMAINED UNTIL EARLY IN FEBRUARY, 1945, WHEN THEY RETURNED
TO MASSACHUSETTS, STAYING FOR A FEW DAYS AT WESTFIELD AND THEN
RETURNING TO MONTEREY.  PHELPS' FATHER LIVED IN WESTFIELD, AND PHELPS
TESTIFIED THAT HIS FATHER'S CRITICAL ILLNESS OCCASIONED THEIR RETURN. 
A FEW DAYS LATER, PHELPS WAS SERVED WITH PAPERS IN A $15,000 ALIENATION
OF AFFECTIONS ACTION BROUGHT BY SHERRER.  HE TESTIFIED THAT THE
PENDENCY OF THIS ACTION WAS THE REASON FOR HIS REMAINING IN
MASSACHUSETTS EVEN AFTER HIS FATHER'S HEALTH HAD BECOME LESS CRITICAL. 
THE TRIAL WAS SET MANY MONTHS AHEAD, BUT PHELPS AND THE PETITIONER DID
NOT RETURN TO FLORIDA.  RENT ON THE FLORIDA COTTAGE FOR A MONTH
FOLLOWING THEIR DEPARTURE WAS PAID, BUT THIS MAY HAVE BEEN REQUIRED, AS
IT WAS PAID ON A MONTHLY BASIS.  SOME PERSONAL BELONGINGS WERE LEFT
BEHIND THERE.  LATER, THE LANDLORD WAS INFORMED THAT PHELPS AND THE
PETITIONER WOULD NOT CONTINUE RENTING THE COTTAGE, AND STILL LATER THEY
ASKED THAT THEIR BELONGINGS BE SENT TO MONTEREY. 

SHERRER HAD MEANWHILE MOVED OUT OF THE HOUSE WHICH HE AND THE
PETITIONER HAD FORMERLY LIVED IN, WHICH THEY OWNED TOGETHER.  PHELPS
AND THE PETITIONER MOVED IN, AND DID NOT RETURN TO FLORIDA.  ON JUNE
28, 1945, A PETITION WAS FILED BY SHERRER IN THE BERKSHIRE COUNTY
PROBATE COURT FOR A DECREE SETTING FORTH THAT HIS WIFE HAD DESERTED HIM
AND THAT HE WAS LIVING APART FROM HER FOR JUSTIFIABLE CAUSE.  A STATUTE
PROVIDED THAT SUCH A DECREE WOULD EMPOWER A HUSBAND TO CONVEY REALTY
FREE OF DOWER RIGHTS.  MASS. GEN. LAWS C. 209, SEC. 36(1932).  THE
PROBATE COURT FOUND THAT MRS. SHERRER HAD NOT GONE TO FLORIDA TO MAKE
IT HER PERMANENT HOME BUT WITH THE INTENTION OF MEETING PHELPS,
DIVORCING SHERRER, MARRYING PHELPS, AND RETURNING TO MASSACHUSETTS. 
THESE FINDINGS WERE UPHELD BY THE SUPREME JUDICIAL COURT OF THE STATE. 

THE PARTIES IN COE V. COE WERE MARRIED IN 1934 IN NEW YORK CITY. 
UNTIL 1939, THEY SPENT A LARGE PART OF EACH YEAR IN TRAVEL, BUT HAD
ONLY ONE HOME, OWNED BY COE, IN WORCESTER, MASSACHUSETTS.  COE ALSO
OWNED OTHER LAND, MAINTAINED BANK ACCOUNTS, PAID TAXES, REGISTERED HIS
AUTOMOBILE, ETC., ALL IN WORCESTER. 

BEGINNING IN 1940, COE ALSO MAINTAINED AN APARTMENT IN NEW YORK CITY,
WHERE MUCH OF HIS BUSINESS WAS CONDUCTED.  HE USUALLY LIVED THERE
DURING THE WEEK, RETURNING TO WORCESTER ON WEEK ENDS.  IN NEW YORK CITY
THERE ALSO LIVED ONE DAWN ALLEN, HIS SECRETARY AND FRIEND.  HIS
RELATIONS WITH MRS. COE DETERIORATED.  IT APPEARS THAT DURING THIS
PERIOD AS WELL, HIS PRINCIPAL DOMICILE WAS IN WORCESTER.  HIS OWN
TESTIMONY AS TO WHERE HE INTENDED TO MAKE HIS HOME AT THIS TIME WAS
CONTRADICTORY.  HE KEPT BANK ACCOUNTS AND MOST OF HIS FUNDS IN NEW YORK
AND DID JURY DUTY THERE.  HE USED HIS WORCESTER ADDRESS IN
CORRESPONDENCE AND WHEN INCORPORATING A PERSONAL CORPORATION.  FN19
THE TRIAL JUDGE FOUND THAT HIS DOMICILE REMAINED IN WORCESTER. 

IN JANUARY, 1942, MRS. COE FILED A PETITION FOR SEPARATE SUPPORT IN
THE WORCESTER COUNTY PROBATE COURT.  COE CROSS-PETITIONED FOR DIVORCE. 
ON MARCH 25, COE'S PETITION WAS DISMISSED, AND MRS. COE'S GRANTED; SHE
WAS AWARDED $35 PER WEEK.  SHE APPEALED, COMPLAINING OF THE AMOUNT. 
WHILE THE APPEAL WAS PENDING, COE LEFT WORCESTER FOR NEW YORK, AND
ACCOMPANIED BY DAWN ALLEN AND HER MOTHER, LEFT NEW YORK ON MAY 31, FOR
RENO, NEVADA, ARRIVING THERE ON JUNE 10.  HE LIVED AT THE DEL MONTE
RANCH.  HE TESTIFIED THAT HE WENT THERE TO RELIEVE HIS ASTHMA AND
BECAUSE OF NEVADA'S LIBERAL TAX LAWS.  HE ALSO GAVE CONFLICTING
TESTIMONY AS TO WHETHER HE WENT THERE IN ORDER TO GET A DIVORCE.  ON
JUNE 11, HE CONSULTED A LAWYER FOR WHOM HIS WORCESTER ATTORNEY HAD
PREPARED A DIVORCE MEMORANDUM.  HE OPENED A BANK ACCOUNT AND RENTED A
SAFE-DEPOSIT BOX, REGISTERED HIS AUTOMOBILE AND TOOK OUT A DRIVER'S
LICENSE, ALL IN NEVADA.  HE DID NOT SEVER HIS OTHER TIES WITH NEW YORK
OR MASSACHUSETTS. 

NEVADA LAW PERMITS INSTITUTION OF PROCEEDINGS FOR DIVORCE AFTER SIX
WEEKS' RESIDENCE.  FORTY-SEVEN DAYS AFTER HIS ARRIVAL IN THE STATE, COE
FILED A COMPLAINT FOR DIVORCE, ALLEGING SIX WEEKS' BONA FIDE
RESIDENCE.  NOTICE WAS MAILED TO MRS. COE, WHO FOLLOWED TO RENO,
ENGAGED AN ATTORNEY, AND DEMURRED TO THE COMPLAINT.  SUBSEQUENTLY,
HOWEVER, SHE AND COE ENTERED INTO A WRITTEN AGREEMENT, PROVIDING FOR A
LUMP SUM PAYMENT TO MRS. COE OF $7,500, AND $35 PER WEEK.  ON SEPTEMBER
19, SHE FILED AN ANSWER IN WHICH SHE ADMITTED COE'S RESIDENCE AS
ALLEGED IN HIS COMPLAINT, AND A CROSS-COMPLAINT.  ON THE SAME DAY, A
DIVORCE WAS GRANTED TO MRS. COE, AND THE COURT ADOPTED THE AGREEMENT. 
ALSO ON THE SAME DAY, COE MARRIED DAWN ALLEN.  TWO DAYS LATER THEY LEFT
RENO, RETURNED TO NEW YORK, WHERE COE GAVE UP HIS APARTMENT, AND
RETURNED TO WORCESTER ON OCTOBER 1, RESIDING AT A HOUSE OWNED BY HIM
THERE. 

ON FEBRUARY 25, 1943, THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
AFFIRMED THE SEPARATE MAINTENANCE DECREE OF THE WORCESTER COUNTY
PROBATE COURT.  COE MADE NO PAYMENTS TO THE RESPONDENT UNDER EITHER
THAT DECREE OR THAT OF THE NEVADA COURT, OTHER THAN THE $7,500 LUMP
SUM.  ON MAY 22, 1943, RESPONDENT FILED A PETITION IN THE PROBATE COURT
TO HAVE HIM CITED FOR CONTEMPT.  COE PETITIONED TO HAVE THE DECREE
REVOKED BECAUSE OF THE SUPERVENING NEVADA DIVORCE DECREE. 

WHILE THIS WAS PENDING, COE AND DAWN SPENT A PART OF THE SUMMER OF
1943 AT THE DEL MONTE RANCH, NEAR RENO, TO CONFER WITH COE'S NEVADA
DIVORCE LAWYER AND TO NEGOTIATE FOR THE PURCHASE OF THE RANCH. 
APPARENTLY, THE PURCHASE WAS NOT MADE.  WITH THE EXCEPTION OF THIS
PERIOD, HE AND DAWN HAVE RESIDED AT WORCESTER CONTINUOUSLY SINCE THEIR
MARRIAGE.  COE KEPT HIS BANK ACCOUNTS AND POST-OFFICE BOX THERE, AND
PAID HIS POLL TAX AND OTHER LOCAL TAXES.  IN FEBRUARY, 1944, HE
PURCHASED A MORE EXPENSIVE HOUSE, INTO WHICH THEY MOVED.  IN VARIOUS
FORMAL PAPERS, HE NOTED WORCESTER AS HIS RESIDENCE.    ON OCTOBER 21,
1943, THE PROBATE COURT, ON THE BASIS OF THE NEVADA DIVORCE, REVOKED
ITS SEPARATE MAINTENANCE DECREE.  THE RESPONDENT'S PROFFER OF EVIDENCE
TO SHOW LACK OF JURISDICTION IN THE NEVADA COURT WAS REJECTED.  THIS
RULING WAS REVERSED BY THE SUPREME JUDICIAL COURT, WHICH SENT THE CASE
BACK TO ALLOW EVIDENCE CONTRADICTING THE NEVADA FINDING OF DOMICILE. 
ON REMAND, SUCH EVIDENCE WAS TAKEN, THE GIST OF WHICH HAS BEEN
SUMMARIZED.  THE PROBATE COURT FOUND THAT THE PARTIES HAD BEEN
DOMICILED IN MASSACHUSETTS THROUGHOUT, AND THAT COE'S TRIP TO NEVADA
WAS MADE IN ORDER TO OBTAIN A DIVORCE AND NOT TO CHANGE HIS DOMICILE. 
THESE FINDINGS WERE UPHELD BY THE SUPREME JUDICIAL COURT. 

CONCEDING THAT MATTERS OF CREDIBILITY WERE FOR THE TRIERS OF FACT,
THE EVIDENCE APPEARS TO ME TO HAVE BEEN AMPLE TO JUSTIFY THE FINDINGS
THAT WERE MADE, EVEN GIVING EVERY WEIGHT TO THE CONTRARY NEVADA AND
FLORIDA DETERMINATIONS AND TREATING THE BURDEN ON THE PARTY
CONTRADICTING THOSE DETERMINATIONS AS MOST HEAVY.  JUDGES, AS WELL AS
JURORS, NATURALLY ENOUGH MAY DIFFER AS TO THE MEANING OF TESTIMONY AND
THE WEIGHT TO BE GIVEN EVIDENCE.  I WOULD NOT DEEM IT PROFITABLE TO
DISSENT ON SUCH AN ISSUE TOUCHING THE UNIQUE CIRCUMSTANCES OF A
PARTICULAR CASE.  MY DISAGREEMENT WITH THE DECISION OF THE COURT IS NOT
AS TO THE WEIGHT OF THE EVIDENCE, BUT CONCERNS WHAT I TAKE TO BE ITS
HOLDING, THAT THE OPPORTUNITY OF THE PARTIES TO LITIGATE THE QUESTION
OF JURISDICTION IN NEVADA AND FLORIDA FORECLOSED MASSACHUSETTS FROM
RAISING THE QUESTION LATER.  IF THE COURT HAD MERELY HELD THAT THE
EVIDENCE WAS NOT SUFFICIENT TO JUSTIFY MASSACHUSETTS' FINDINGS,
CONTRARY TO WHAT WAS RECITED IN THE DECREES OF NEVADA AND FLORIDA, OR,
AS AN ADDED ASSURANCE THAT OBLIGATIONS OF RECOGNITION BE HONORED, HAD
REQUIRED OF THE MASSACHUSETTS COURT EXPLICIT AVOWAL OF THE PRESUMPTION
IN FAVOR OF THE FLORIDA AND NEVADA DECREES, I SHOULD HAVE REMAINED
SILENT.  BUT THE CRUX OF TODAY'S DECISION IS THAT REGARDLESS OF HOW
OVERWHELMING THE EVIDENCE MAY HAVE BEEN THAT THE ASSERTED DOMICILE IN
THE STATE OFFERING BARGAIN-COUNTER DIVORCES WAS A SHAM, THE HOME STATE
OF THE PARTIES IS NOT PERMITTED TO QUESTION THE MATTER IF THE FORM OF A
CONTROVERSY HAS BEEN GONE THROUGH.  TO SUCH A PROPOSITION I CANNOT
ASSENT.  DECISIONS OF THIS COURT THAT HAVE NOT STOOD THE TEST OF TIME
HAVE BEEN DUE NOT TO WANT OF FORESIGHT BY THE PRESCIENT FRAMERS OF THE
CONSTITUTION, BUT TO MISCONCEPTIONS REGARDING ITS REQUIREMENTS.  I
CANNOT BRING MYSELF TO BELIEVE THAT THE FULL FAITH AND CREDIT CLAUSE
GAVE TO THE FEW STATES WHICH OFFER BARGAIN-COUNTER DIVORCES
CONSTITUTIONAL POWER TO CONTROL THE SOCIAL POLICY GOVERNING DOMESTIC
RELATIONS OF THE MANY STATES WHICH DO NOT. 

FN1  NOR DO I REGARD DAVIS V. DAVIS, 305 U.S. 32, AS CONTRARY
AUTHORITY.  THAT CASE DID NOT DEPEND FOR ITS RESULT ON THE FACT THAT
THERE HAD BEEN AN ADJUDICATION OF THE JURISDICTION OF THE COURT
RENDERING THE DIVORCE ENFORCED, INASMUCH AS THIS COURT FOUND THAT THE
STATE GRANTING THE DIVORCE WAS IN FACT THAT OF THE DOMICILE.  305 U.S.
AT 41.  MOREOVER THIS COURT'S CITATION THEREIN OF ANDREWS V. ANDREWS,
SUPRA, INDICATES AN ABSENCE OF INTENTION TO OVERRULE THE HOLDING OF
THAT CASE THAT OPPORTUNITY TO LITIGATE THE ISSUE OF DOMICILE DOES NOT
FORECLOSE INQUIRY AS TO THE TRUE FACTS.  ANDREWS V. ANDREWS HAS SINCE
BEEN CITED WITH RESPECT, AS RECENTLY AS WILLIAMS V. NORTH CAROLINA, 317
U.S. 287, 309, 320, N. 7, AND 325 U.S. 226, 229, 240, 242. 

FN2  COMPARE THE ENGLISH LAWS PROVIDING FOR A KING'S PROCTOR TO
REPRESENT THE INTERESTS OF THE CROWN IN DIVORCE PROCEEDINGS.  SECTIONS
5-7, MATRIMONIAL CAUSES ACT, 1860, 23 & 24 VICT., C. 144; SEC. 1,
MATRIMONIAL CAUSES ACT.  1873, 36 & 37 VICT., C. 31; SEC. 181, THE
SUPREME COURT OF JUDICATURE (CONSOLIDATION) ACT, 1925, 15 & 16 GEO. 5,
C. 49, 9 HALSBURY'S STATUTES OF ENGLAND 393-94. 

FN3  REV. L. 1835, C. 76: 

SEC. 39.  "WHEN ANY INHABITANT OF THIS STATE SHALL GO INTO ANY OTHER
STATE OR COUNTRY, IN ORDER TO OBTAIN A DIVORCE FOR ANY CAUSE, WHICH HAD
OCCURRED HERE, AND WHILST THE PARTIES RESIDED HERE, OR FOR ANY CAUSE,
WHICH WOULD NOT AUTHORIZE A DIVORCE, BY THE LAWS OF THIS STATE, A
DIVORCE SO OBTAINED SHALL BE OF NO FORCE OR EFFECT IN THIS STATE." 

SEC. 40.  "IN ALL OTHER CASES, A DIVORCE DECREED IN ANY OTHER STATE
OR COUNTRY, ACCORDING TO THE LAW OF THE PLACE, BY A COURT HAVING
JURISDICTION OF THE CAUSE AND OF BOTH OF THE PARTIES, SHALL BE VALID
AND EFFECTUAL IN THIS STATE." 

FN4  SEE NOTE 13, INFRA. 

FN5  DEL. REV. CODE, C. 86, SEC. 29(1935). 

FN6  N.J. STAT. ANN. SEC. 2:50:35(1939). 

FN7  WIS. STAT. SEC. 247.21(1945). 

FN8  ME. REV. STAT., C. 73, SEC. 12(1930). 

FN9  THE RESULT OF THE ASSERTION OF THE STATE'S INTEREST MAY BE A
WINDFALL TO A PARTY WHO HAS SOUGHT TO BARGAIN HIS OR HER RIGHTS AWAY
AND NOW SEEKS TO RENEGE ON THE AGREEMENT.  THIS FACT, HOWEVER, SHOULD
SCARCELY BE ALLOWED TO STAND IN THE WAY OF THE ASSERTION BY THE STATE
OF ITS PARAMOUNT CONCERN IN THE MATTER.  SUCH AN UNEXPECTED WINDFALL TO
A PARTY, WHO BY ETHICAL STANDARDS MAY BE REGARDED AS UNDESERVING, IS A
FREQUENT CONSEQUENCE OF FINDINGS OF LACK OF JURISDICTION.  SEE HOLMES,
C.J., IN ANDREWS V. ANDREWS, 176 MASS. 92, 96. 

FN10  SEE NOTE 13, INFRA. 

FN11  TODAY'S DECISION WOULD ALSO SEEM TO RENDER INVALID, UNDER THE
FULL FAITH AND CREDIT CLAUSE, A LARGE PROPORTION OF THE COMMONLY
ENCOUNTERED INJUNCTIONS AGAINST A DOMICILIARY PROSECUTING AN OUT-OF
STATE DIVORCE ACTION.  CF. KEMPSON V. KEMPSON, 58 N.J. EQ. 94, 61 N.J.
EQ. 303, 63 N.J. EQ. 783; POUND, THE PROGRESS OF THE LAW - EQUITY, 33
HARV. L. REV. 420, 425-28; JACOBS, THE UTILITY OF INJUNCTIONS AND
DECLARATORY JUDGMENTS IN MIGRATORY DIVORCE, 2 LAW & CONTEMP.  PROB. 
370; NOTE, 13 BKLYN.  L. REV. 148.  SINCE NO STATE MAY ENJOIN ITS
INHABITANTS FROM CHANGING THEIR DOMICILES IN ORDER TO PROCURE DIVORCES,
IT WOULD SEEM THAT HENCEFORTH A RECITAL OF DOMICILE IN THE OUT-OF-STATE
DIVORCE DECREE WILL RENDER THE INJUNCTION RETROACTIVELY INVALID IF
THERE HAS BEEN ANY SEMBLANCE OF A CONTEST IN THE DIVORCE PROCEEDING. 

FN12  THE MASSACHUSETTS LAW IS SURELY LEGISLATION WITHIN THE FIELD
REGULATING THE DOMESTIC RELATIONS OF HUSBAND AND WIFE, AND, AS SUCH,
WITHIN THE SCOPE OF "MATTERS RESERVED TO THE STATES."  IT CAN SCARCELY
BE DOUBTED THAT IF A CONSTITUTIONAL AMENDMENT WITHDREW THIS FIELD FROM
THE STATES AND GAVE IT TO THE FEDERAL GOVERNMENT, AN ACT OF CONGRESS,
MAKING THE SAME PROVISION SUBSTANTIVELY AS DID MASSACHUSETTS, REGARDING
DIVORCES GRANTED IN COUNTRIES OTHER THAN THE UNITED STATES TO CITIZENS
OF THIS COUNTRY, WOULD BE HELD CONSTITUTIONAL.  SUCH A LAW IS NOT LESS
A LAW CONCERNING "THE DOMESTIC RELATIONS OF HUSBAND AND WIFE," EVEN
THOUGH INCIDENTALLY IT MAY AFFECT THE FORCE TO BE GIVEN TO WHAT APPEARS
TO BE A JUDGMENT OF A SISTER STATE. 

FN13  THREE MODES OF ACHIEVING UNIFORMITY HAVE BEEN ATTEMPTED -
ADOPTION OF A CONSTITUTIONAL AMENDMENT AUTHORIZING FEDERAL DOMESTIC
RELATIONS LEGISLATION; CONGRESSIONAL ACTION IMPLEMENTING THE FULL FAITH
AND CREDIT CLAUSE; AND UNIFORM STATE LEGISLATION.  SUCH ATTEMPTS WERE
ORIGINALLY FOSTERED BY THOSE WHO SOUGHT LEGISLATION RENDERING DIVORCE
UNIFORMLY DIFFICULT TO OBTAIN.  SEE LICHTENBERGER, DIVORCE (1931) PP.
187 ET SEQ.; CAVERS, FOREWORD, 2 LAW & CONTEMP.  PROB.  289. 

THE FIRST EFFORT TO AMEND THE CONSTITUTION TO EMPOWER CONGRESS TO
ENACT DOMESTIC RELATIONS LEGISLATION UNIFORM THROUGHOUT THE NATION WAS
MADE IN 1884.  SINCE THEN AT LEAST SEVENTY SIMILAR AMENDMENTS HAVE BEEN
PROPOSED.  AMES, THE PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE
UNITED STATES DURING THE FIRST CENTURY OF ITS HISTORY, (1896) ANN. REP.
AMERICAN HISTORICAL ASS'N, REPRINTED AS H.R. DOC. NO. 353, 54TH CONG.,
2D SESS., PT. 2, P. 190; SEN. DOC. NO. 93, 69TH CONG., 1ST SESS.;
"PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES
INTRODUCED IN CONGRESS FROM THE 69TH CONGRESS, 2D SESSION THROUGH THE
78TH CONGRESS, DECEMBER 6, 1926, TO DECEMBER 19, 1944" (U.S. GOVT.
PRINTING OFFICE, 1946).  NONE HAS BEEN FAVORABLY ACTED UPON.  SEE,
E.G., H.R. REP. NO. 1290, 52ND CONG., 1ST SESS., P. 2, IN WHICH THE
MAJORITY OF THE HOUSE JUDICIARY COMMITTEE, REPORTING ADVERSELY ON SUCH
A PROPOSED AMENDMENT, POINTED OUT THAT CONGRESS MIGHT ACHIEVE A MEASURE
OF UNIFORMITY THROUGH EXERCISE OF ITS EXISTING POWERS TO IMPLEMENT THE
FULL FAITH AND CREDIT CLAUSE. 

SUGGESTIONS THAT SUCH A STATUTE BE ENACTED BY CONGRESS HAVE NOT BEEN
LACKING.  SEE, E.G., 52 REP. A.B.A. 292, 319; CORWIN, THE "FULL FAITH
AND CREDIT" CLAUSE, 81 U. OF PA. L. REV. 371, 388; CF. MR. JUSTICE
STONE, DISSENTING, IN YARBOROUGH V. YARBOROUGH, 290 U.S. 202, 215, N.
2; JACKSON, FULL FAITH AND CREDIT - THE LAWYER'S CLAUSE OF THE
CONSTITUTION, 45 COL. L. REV. 1, 21.  AND SENATOR MCCARRAN OF NEVADA IS
CURRENTLY SEEKING TO HAVE SUCH LEGISLATION ADOPTED.  SEE S. 1960, 80TH
CONG., 2D SESS. 

THE MOST VIGOROUS EFFORTS, HOWEVER, HAVE BEEN MADE IN THE DIRECTION
OF SECURING UNIFORM STATE LEGISLATION.  PRESIDENT THEODORE ROOSEVELT,
IN CALLING ON CONGRESS TO PROVIDE FOR COMPILATION OF MARRIAGE AND
DIVORCE STATISTICS, INCLUDED A SUGGESTION OF COOPERATION AMONG THE
STATES IN ENACTING UNIFORM LAWS.  15 RICHARDSON, MESSAGES AND PAPERS OF
THE PRESIDENTS 6942.  ON THE INITIATIVE OF THE GOVERNOR OF
PENNSYLVANIA, A NATIONAL CONGRESS ON UNIFORM DIVORCE LAWS, IN WHICH
FORTY-TWO STATES WERE REPRESENTED, WAS CALLED IN 1906.  THIS CONGRESS
RESOLVED THAT A CONSTITUTIONAL AMENDMENT WAS NOT FEASIBLE AND DRAFTED
RESOLUTIONS CONCERNING UNIFORM STATE LEGISLATION.  LICHTENBERGER,
SUPRA, 191-96.  SEE ALSO PROCEEDINGS, NATIONAL CONGRESS ON UNIFORM
DIVORCE LAWS (1906) PASSIM; PROCEEDINGS 2D MEETING OF THE GOVERNORS OF
THE STATES OF THE UNION (1910) PP. 185-98.  IT IS INTERESTING TO NOTE
THAT EVEN THESE PROPONENTS OF UNIFORMITY ADVOCATED THAT EACH STATE
"ADOPT A STATUTE EMBODYING THE PRINCIPLE CONTAINED IN" THE VERY
MASSACHUSETTS STATUTE NOW HELD UNCONSTITUTIONAL BY THE COURT PERHAPS IN
THE INTERESTS OF UNIFORMITY.  LICHTENBERGER, SUPRA, AT 194. 

THE BILL PREPARED BY THE CONGRESS WAS ALSO APPROVED BY THE
COMMISSIONERS ON UNIFORM STATE LAWS (PROCEEDINGS, 17TH ANN. CONF.,
COMMISSIONERS ON UNIFORM STATE LAWS (1907) PP. 120 ET SEQ.) BUT WAS
ADOPTED BY ONLY THREE STATES.  SEE PP. 360-361, SUPRA.  THE
COMMISSIONERS EVENTUALLY DECIDED THAT NO UNIFORM LAW ESTABLISHING
SUBSTANTIVE GROUNDS FOR DIVORCE COULD SUCCEED, AND REPLACED THIS
PROPOSAL WITH THE UNIFORM DIVORCE JURISDICTION ACT, WHICH WOULD HAVE
ACCORDED RECOGNITION TO A WIDER RANGE OF DECREES THAN WERE PROTECTED BY
HADDOCK V. HADDOCK, 201 U.S. 562, THEN IN FORCE.  (1930) HANDBOOK OF
THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, PP. 498
502.  THIS ACT HAS BEEN ADOPTED ONLY BY VERMONT, L. 1931, NO. 45, AND
WAS REPEALED TWO YEARS LATER.  L. 1933, NO. 38. 

MEANWHILE, OTHER ORGANIZATIONS HAVE NOT GIVEN UP THE ATTEMPT TO HAVE
ENACTED UNIFORM DIVORCE LAWS, ALTHOUGH IN RECENT YEARS THE OBJECTIVE
HAS USUALLY BEEN UNIFORMLY LIBERAL RATHER THAN UNIFORMLY REPRESSIVE
LEGISLATION.  SEE, E.G., WOMAN'S HOME COMPANION, DEC., 1947, P. 32. 

EVEN IN THE INTERNATIONAL FIELD, ATTEMPTS TO AVOID CONFLICTS AS TO
THE EXTRATERRITORIAL VALIDITY OF DIVORCES HAVE BEEN MADE.  SEE, E.G.,
CONVENTION TO REGULATE CONFLICTS OF LAWS AND OF JURISDICTION IN MATTERS
OF DIVORCE AND SEPARATION, THE HAGUE, JUNE 12, 1902. 

FN14  SEE THE INTERESTING ACCOUNT OF NEVADA'S DIVORCE MILL, WRITTEN
BY TWO MEMBERS OF THE NEVADA BAR, INGRAM AND BALLARD, THE BUSINESS OF
MIGRATORY DIVORCE IN NEVADA, 2 LAW & CONTEMP.  PROB.  302; CF.
BERGESON, THE DIVORCE MILL ADVERTISES, ID. AT 348. 

FN15  QUAERE, WHETHER TODAY'S DECISION APPLIES TO EX PARTE NEVADA
DECREES BY DEFAULT, WHERE THE DEFENDANT LATER FILES A GENERAL
APPEARANCE AND THE RECORD IS MADE TO SHOW JURISDICTION NUNC PRO TUNC. 
NEV. COMP. LAWS (1931-1941 SUPP.) SEC. 9488. 

FN16  IT IS BY NO MEANS CLEAR THAT THE ISSUE BEFORE THE MASSACHUSETTS
COURTS IN EITHER OF THESE CASES WAS OR COULD HAVE BEEN LITIGATED IN
FLORIDA OR NEVADA.  ALL THAT THE FLORIDA OR NEVADA COURTS COULD HAVE
DETERMINED WAS WHETHER THE JURISDICTIONAL REQUISITES OF STATE LAW AND
OF THE DUE PROCESS CLAUSE OF THE CONSTITUTION WERE MET.  AND IF A
DIRECT ATTACK ON THESE DECREES HAD BEEN MADE IN THIS COURT, ALL THAT WE
COULD HAVE DECIDED WOULD HAVE BEEN THE DUE PROCESS POINT.  A DIVORCE
MAY SATISFY DUE PROCESS REQUIREMENTS, AND BE VALID WHERE RENDERED, AND
STILL LACK THE JURISDICTIONAL REQUISITES FOR FULL FAITH AND CREDIT TO
BE MANDATORY.  COMPARE WILLIAMS V. NORTH CAROLINA, 317 U.S. 287,
307(CONCURRING OPINION), WITH WILLIAMS V. NORTH CAROLINA, 325 U.S.
226.  THIS IS TRUE EVEN THOUGH THE FLORIDA AND NEVADA COURTS APPEAR TO
CHARACTERIZE THE JURISDICTIONAL PREREQUISITES UNDER THEIR RESPECTIVE
LAWS AS DOMICILE, WADE V. WADE, 93 FLA. 1004, 1007; LATTERNER V.
LATTERNER, 51 NEV. 285; SINCE WE MAY BE UNWILLING TO APPLY AS LOOSE A
TEST OF "DOMICILE," IN DETERMINING WHETHER EXTRASTATE ENFORCEMENT IS
MANDATORY, AS THOSE STATES MIGHT PROPERLY CHOOSE TO USE IN DETERMINING
WHAT DIVORCES MIGHT BE GRANTED AND EFFECTIVE WITHIN THEIR OWN BORDERS. 
THUS, AT NO POINT IN THE PROCEEDINGS IN FLORIDA OR NEVADA IN THE
INSTANT CASES WAS THERE AN OPPORTUNITY TO LITIGATE WHETHER MRS. SHERRER
OR MR. COE HAD ACQUIRED FLORIDA OR NEVADA DOMICILE, RESPECTIVELY,
SUFFICIENT TO ENTITLE THEIR DIVORCES TO EXTRATERRITORIAL RECOGNITION. 

FN17  NORTH CAROLINA APPEARS TO BE THE ONLY OTHER STATE ALLOWING
DIVORCE ON LESS THAN A YEAR'S RESIDENCE, BUT IT DOES NOT ALLOW DIVORCE
FOR MANY OF THE USUAL CAUSES.  THE WILLIAMS CASES ATTEST THAT ITS LAWS
ARE NOT LAX.    FN18  THE EASIER IT IS MADE FOR THOSE WHO THROUGH
AFFLUENCE ARE ABLE TO EXERCISE DISPROPORTIONATELY LARGE INFLUENCE ON
LEGISLATION, TO OBTAIN MIGRATORY DIVORCES, THE LESS LIKELY IT IS THAT
THE DIVORCE LAWS OF THEIR HOME STATES WILL BE LIBERALIZED, INSOFAR AS
THAT IS DEEMED DESIRABLE, SO AS TO AFFECT ALL.  SEE GROVES, MIGRATORY
DIVORCES, 2 LAW & CONTEMP.  PROB.  293, 298.  FOR COMPARABLE INSTANCES,
IN THE PAST, OF DISCRIMINATION AGAINST THE POOR IN THE ACTUAL
APPLICATION OF DIVORCE LAWS, CF. DICKENS, HARD TIMES, C. 11; HANKINS,
DIVORCE, 5 ENCYC.  SOC.  SCI. 177, 179. 

FN19  FOR PURPOSES OF STATE TAXATION, HE MIGHT WELL HAVE BEEN
REGARDED AS DOMICILED IN EITHER STATE.  CF. WORCESTER COUNTY TRUST CO.
V. RILEY, 302 U.S. 292; TEXAS V. FLORIDA, 306 U.S. 398. 
..END :





COE V. COE, 334 U.S. 378 


NO. 37.  ARGUED OCTOBER 14, 1947.  - DECIDED JUNE 7, 1948.  - 320 MASS.
295, 69 N.E.2D 793, REVERSED. 


IN A SUIT BETWEEN RESIDENTS OF THE STATE, A MASSACHUSETTS COURT
GRANTED A WIFE SEPARATE SUPPORT AND DENIED HER HUSBAND A DIVORCE.  THE
HUSBAND WENT TO NEVADA AND SUED FOR DIVORCE THERE AS SOON AS HE HAD
BEEN THERE THE SIX WEEKS REQUIRED BY NEVADA LAW.  THE WIFE APPEARED
PERSONALLY AND BY COUNSEL, FILED A CROSS-COMPLAINT FOR DIVORCE,
ADMITTED THE HUSBAND'S NEVADA RESIDENCE, AND PARTICIPATED PERSONALLY IN
THE PROCEEDINGS.  AFTER FULL OPPORTUNITY TO TRY THE JURISDICTIONAL
ISSUES, THE NEVADA COURT FOUND THAT IT HAD JURISDICTION AND GRANTED THE
WIFE A DIVORCE, WHICH WAS VALID AND FINAL UNDER NEVADA LAW.  THE
HUSBAND THEN MARRIED AGAIN AND RETURNED TO MASSACHUSETTS, WHEREUPON HIS
EX-WIFE PETITIONED THE MASSACHUSETTS COURT TO ADJUDGE HIM IN CONTEMPT
FOR FAILING TO MAKE PAYMENTS FOR HER SEPARATE SUPPORT UNDER ITS EARLIER
DECREE.  SHE ALSO MOVED THAT THE SUPPORT DECREE BE MODIFIED SO AS TO
AWARD HER A LARGER ALLOWANCE.  THE HUSBAND DEFENDED ON THE GROUND OF
THE NEVADA DIVORCE.  THE MASSACHUSETTS COURT HELD THE NEVADA DIVORCE
VOID FOR WANT OF JURISDICTION AND INCREASED THE FIRST WIFE'S ALLOWANCE
FOR SEPARATE SUPPORT.  ITS OPINION CONTAINED NO INTIMATION THAT, UNDER
STATE LAW, THE DECREE FOR SEPARATE SUPPORT WOULD SURVIVE IF THE NEVADA
DIVORCE WERE VALID.  HELD:  BY SUBJECTING THE NEVADA DECREE TO
COLLATERAL ATTACK, THE MASSACHUSETTS COURT DENIED IT FULL FAITH AND
CREDIT CONTRARY TO ART. IV, SEC. 1 OF THE CONSTITUTION AND THE ACT OF
MAY 26, 1790, 28 U.S.C. SEC. 687.  SEE SHERRER V. SHERRER, ANTE, P.
343.  PP. 379-384. 

COE V. COE. 

CERTIORARI TO THE PROBATE COURT FOR WORCESTER COUNTY, MASSACHUSETTS. 

A MASSACHUSETTS PROBATE COURT DENIED A DIVORCE TO A RESIDENT OF THAT
STATE AND GRANTED SEPARATE SUPPORT TO HIS WIFE.  THE SUPREME JUDICIAL
COURT OF MASSACHUSETTS AFFIRMED.  313 MASS. 232, 46 N.E.2D 1017.  HE
WENT TO NEVADA AND SUED FOR A DIVORCE.  HIS WIFE APPEARED PERSONALLY
AND FILED A CROSS-COMPLAINT.  THE NEVADA COURT FOUND THAT IT HAD
JURISDICTION AND GRANTED THE WIFE A DIVORCE.  UPON THE HUSBAND'S RETURN
TO MASSACHUSETTS, THE WIFE PETITIONED THE PROBATE COURT THERE TO
ADJUDGE HIM IN CONTEMPT FOR FAILURE TO MAKE PAYMENTS FOR HER SUPPORT
UNDER ITS EARLIER DECREE.  SHE ALSO MOVED FOR AN INCREASE IN HER
ALLOWANCE UNDER THE SUPPORT DECREE.  UPON PROOF OF THE NEVADA DIVORCE,
THE PROBATE COURT DISMISSED THE PETITION.  THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS REVERSED.  316 MASS. 423, 55 N.E.2D 702.  AFTER
HEARINGS ON THE ISSUE OF DOMICILE, THE PROBATE COURT HELD THE NEVADA
DIVORCE VOID FOR WANT OF JURISDICTION AND INCREASED THE WIFE'S
ALLOWANCE FOR SUPPORT.  THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
AFFIRMED.  320 MASS. 295, 69 N.E.2D 793.  THIS COURT GRANTED
CERTIORARI.  330 U.S. 814.  REVERSED, P. 384. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS IS THE COMPANION CASE TO SHERRER V. SHERRER, ANTE, P. 343.  WE
GRANTED CERTIORARI TO CONSIDER THE CONTENTION OF PETITIONER THAT THE
COURTS OF MASSACHUSETTS HAVE FAILED TO ACCORD FULL FAITH AND CREDIT TO
A DECREE OF DIVORCE RENDERED BY A COURT OF THE STATE OF NEVADA. 

PETITIONER, MARTIN V.B. COE, AND THE RESPONDENT, KATHERINE C. COE,
WERE MARRIED IN NEW YORK IN 1934, AND THEREAFTER RESIDED AS HUSBAND AND
WIFE IN WORCESTER, MASSACHUSETTS.  FN1  DISCORD DEVELOPED BETWEEN THE
PARTIES, AND ON JANUARY 13, 1942, RESPONDENT FILED A PETITION FOR
SEPARATE SUPPORT IN THE PROBATE COURT FOR THE COUNTY OF WORCESTER. 
PETITIONER ANSWERED AND FILED A LIBEL FOR DIVORCE.  FOLLOWING A
HEARING, THE PETITION FOR SEPARATE SUPPORT WAS GRANTED AND THE LIBEL
FOR DIVORCE WAS DISMISSED.  FN2  THE DECREE OF THE PROBATE COURT WAS
AFFIRMED BY THE SUPREME JUDICIAL COURT OF MASSACHUSETTS ON FEBRUARY 23,
1943.  FN3 

PETITIONER LEFT WORCESTER IN MAY, 1942, AND ARRIVED IN RENO, NEVADA,
ON JUNE 10, ACCOMPANIED BY HIS SECRETARY, ONE DAWN ALLEN, AND HER
MOTHER.  ON JULY 24, 1942, PETITIONER, THROUGH HIS ATTORNEY, INSTITUTED
DIVORCE PROCEEDINGS BY FILING A COMPLAINT IN THE FIRST JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA.  THE COMPLAINT ALLEGED THAT
PETITIONER WAS A BONA FIDE RESIDENT OF THE STATE OF NEVADA  FN4  AND
CHARGED RESPONDENT WITH DESERTION AND EXTREME CRUELTY.  RESPONDENT
RECEIVED NOTICE OF THE PROCEEDINGS WHILE IN MASSACHUSETTS.  SHE ARRIVED
IN NEVADA IN AUGUST, 1942, AND THEREAFTER, THROUGH ATTORNEYS, FILED AN
ANSWER TO PETITIONER'S COMPLAINT TOGETHER WITH A CROSS-COMPLAINT FOR
DIVORCE ALLEGING EXTREME CRUELTY ON THE PART OF PETITIONER AS GROUNDS
FOR HER SUIT.  RESPONDENT'S ANSWER ADMITTED AS TRUE THE ALLEGATIONS OF
PETITIONER'S COMPLAINT RELATING TO PETITIONER'S NEVADA RESIDENCE. 

AT THE HEARING IN THE DIVORCE PROCEEDINGS, PETITIONER AND RESPONDENT
APPEARED PERSONALLY.  BOTH PARTIES WERE REPRESENTED BY COUNSEL. 
PETITIONER TESTIFIED THAT HE HAD COME TO NEVADA WITH THE INTENTION OF
MAKING THAT STATE HIS HOME AND THAT SUCH WAS HIS PRESENT INTENTION. 
RESPONDENT GAVE TESTIMONY WITH RESPECT TO SPECIFIC ACTS OF CRUELTY, BUT
RAISED NO QUESTION IN RELATION TO PETITIONER'S DOMICILE.  ON SEPTEMBER
19, 1942, THE NEVADA COURT, AFTER FINDING THAT IT HAD "JURISDICTION OF
THE PLAINTIFF AND DEFENDANT AND OF THE SUBJECT MATTER INVOLVED,"  FN5
ENTERED A DECREE GRANTING RESPONDENT A DIVORCE AS PRAYED FOR IN HER
CROSS-COMPLAINT.  FN6  NEITHER PARTY CHALLENGED THE DECREE BY APPEAL TO
THE NEVADA SUPREME COURT.  FN7 

FOLLOWING THE ENTRY OF THE DIVORCE DECREE, PETITIONER AND DAWN ALLEN
WERE MARRIED IN NEVADA.  SHORTLY THEREAFTER, THEY RETURNED TO
WORCESTER, MASSACHUSETTS, AS HUSBAND AND WIFE.  IN MAY OR JUNE, 1943,
THEY LEFT MASSACHUSETTS FOR NEVADA WHERE THEY REMAINED UNTIL AUGUST OF
THAT YEAR. 

ON MAY 22, 1943, RESPONDENT FILED A PETITION IN THE PROBATE COURT FOR
THE COUNTY OF WORCESTER, PRAYING THAT PETITIONER BE ADJUDGED IN
CONTEMPT OF COURT FOR FAILING TO ABIDE BY THE TERMS OF THE DECREE FOR
SEPARATE SUPPORT WHICH HAD BEEN ENTERED BY THE MASSACHUSETTS COURT IN
THE PREVIOUS YEAR.  FN8 SUBSEQUENTLY, RESPONDENT ALSO MOVED THAT THE
DECREE FOR SEPARATE SUPPORT BE MODIFIED SO AS TO AWARD HER A LARGER
ALLOWANCE.  PETITIONER IN HIS ANSWER DENIED THAT THE DECREE FOR
SEPARATE SUPPORT WAS STILL IN EFFECT AND SET UP THE NEVADA DIVORCE
DECREE AS A BAR TO RESPONDENT'S ACTION. 

IN THE HEARINGS WHICH FOLLOWED, PETITIONER INTRODUCED IN EVIDENCE AN
EXEMPLIFIED COPY OF THE NEVADA COURT PROCEEDING.  THE PRESIDING JUDGE
REFUSED TO ALLOW THE INTRODUCTION OF EVIDENCE PLACING IN ISSUE
PETITIONER'S NEVADA DOMICILE AND THEREBY THE JURISDICTION OF THE NEVADA
COURT, ON THE GROUND THAT PERMITTING SUCH COLLATERAL ATTACK WAS NOT
CONSISTENT WITH THE REQUIREMENTS OF FULL FAITH AND CREDIT. 
PETITIONER'S MOTION TO DISMISS THE ACTION WAS, ACCORDINGLY, ALLOWED. 

THE SUPREME JUDICIAL COURT OF MASSACHUSETTS REVERSED ON APPEAL,
HOLDING THAT THE PROBATE COURT HAD ERRED IN EXCLUDING THE EVIDENCE
PLACING IN ISSUE PETITIONER'S NEVADA DOMICILE AND THE JURISDICTION OF
THE NEVADA COURT.  FN9  IN CONFORMITY WITH THAT JUDGMENT, THE PROBATE
COURT HELD AN EXTENDED HEARING ON THOSE QUESTIONS.  FN10  THE COURT
CONCLUDED THAT PETITIONER WENT TO NEVADA TO SEEK A DIVORCE; THAT
NEITHER PETITIONER NOR RESPONDENT HAD A BONA FIDE RESIDENCE IN THAT
STATE; THAT THE NEVADA COURT DID NOT HAVE JURISDICTION OF EITHER PARTY;
AND THAT THE DIVORCE WAS IN VIOLATION OF THE PROVISIONS OF THE
APPLICABLE MASSACHUSETTS STATUTE.  FN11  THE PROBATE COURT DISMISSED
PETITIONER'S MOTION FOR REVOCATION OF THE DECREE FOR SEPARATE SUPPORT
AND MODIFIED THAT DECREE SO AS TO AWARD RESPONDENT A SUBSTANTIALLY
LARGER ALLOWANCE.  ON APPEAL, THE SUPREME JUDICIAL COURT AFFIRMED THE
ORDER OF THE PROBATE COURT DISMISSING PETITIONER'S MOTION TO REVOKE THE
DECREE FOR SEPARATE SUPPORT, ON THE GROUND THAT THE EVIDENCE SUPPORTED
THE CONCLUSION THAT PETITIONER WAS NEVER DOMICILED IN NEVADA AND THAT
THE NEVADA COURTS LACKED JURISDICTION TO ENTER THE DECREE OF DIVORCE. 
THE ORDER OF THE PROBATE COURT MODIFYING THE DECREE FOR SEPARATE
SUPPORT WAS REVERSED, APPARENTLY FOR FURTHER HEARINGS ON PETITIONER'S
FINANCIAL CONDITION.  FN12  THERE IS NO SUGGESTION IN THE OPINION OF
THE SUPREME JUDICIAL COURT THAT PETITIONER, UNDER STATE LAW, COULD BE
HELD TO THE OBLIGATIONS IMPOSED BY THE DECREE FOR SEPARATE SUPPORT IF
IT BE CONCEDED THAT THE NEVADA DECREE OF DIVORCE IS VALID.  FN13 

IT IS CLEAR THAT THE DECREE OF DIVORCE IN QUESTION IS VALID AND FINAL
IN THE STATE IN WHICH IT WAS RENDERED AND, UNDER THE LAW OF NEVADA, MAY
NOT BE SUBJECTED TO THE COLLATERAL ATTACK PERMITTED IN THIS CASE IN THE
MASSACHUSETTS COURTS.  FN14  RESPONDENT DOES NOT URGE THE CONTRARY. 

NOR HAS IT BEEN SUGGESTED THAT THE PROCEEDINGS BEFORE THE NEVADA
COURT WERE IN ANY DEGREE VIOLATIVE OF THE REQUIREMENTS OF PROCEDURAL
DUE PROCESS OR THAT RESPONDENT WAS DENIED A FULL OPPORTUNITY TO CONTEST
THE ISSUE OF PETITIONER'S NEVADA DOMICILE. 

IT IS ABUNDANTLY CLEAR THAT RESPONDENT PARTICIPATED IN THE NEVADA
DIVORCE PROCEEDINGS.  SHE APPEARED PERSONALLY AND GAVE TESTIMONY AT THE
HEARING.  THROUGH HER ATTORNEYS SHE FILED PLEADINGS IN ANSWER TO
PETITIONER'S COMPLAINT AND SUCCESSFULLY INVOKED THE JURISDICTION OF THE
NEVADA COURT TO OBTAIN THE DECREE OF DIVORCE WHICH SHE SUBSEQUENTLY
SUBJECTED TO ATTACK AS INVALID IN THE MASSACHUSETTS COURTS. 

THUS, HERE, AS IN THE SHERRER CASE, THE DECREE OF DIVORCE IS ONE
WHICH WAS ENTERED AFTER PROCEEDINGS IN WHICH THERE WAS PARTICIPATION BY
BOTH PLAINTIFF AND DEFENDANT AND IN WHICH BOTH PARTIES WERE GIVEN FULL
OPPORTUNITY TO CONTEST THE JURISDICTIONAL ISSUES.  IT IS A DECREE NOT
SUSCEPTIBLE TO COLLATERAL ATTACK IN THE COURTS OF THE STATE IN WHICH IT
WAS RENDERED.  IN THE SHERRER CASE, WE CONCLUDED THAT THE REQUIREMENTS
OF FULL FAITH AND CREDIT PRECLUDE THE COURTS OF A SISTER STATE FROM
SUBJECTING SUCH A DECREE TO COLLATERAL ATTACK BY READJUDICATING THE
EXISTENCE OF JURISDICTIONAL FACTS.  THAT PRINCIPLE IS NO LESS
APPLICABLE WHERE, AS HERE, THE PARTY INITIATING THE COLLATERAL ATTACK
IS THE PARTY IN WHOSE FAVOR THE DECREE WAS ENTERED.  FOR REASONS STATED
AT LENGTH IN THE SHERRER CASE, WE HOLD THAT THE MASSACHUSETTS COURTS
ERRED IN PERMITTING THE NEVADA DIVORCE DECREE TO BE SUBJECTED TO ATTACK
ON THE GROUND THAT PETITIONER WAS NOT DOMICILED IN NEVADA AT THE TIME
THE DECREE WAS ENTERED.  REVERSED. 

FN1  IT APPEARS THAT AFTER OCTOBER, 1940, PETITIONER MAINTAINED AN
APARTMENT IN NEW YORK CITY.  THE MASSACHUSETTS COURTS FOUND THAT
PETITIONER DID NOT THEREBY LOSE HIS MASSACHUSETTS DOMICILE. 

FN2  BY THE TERMS OF THE DECREE OF SEPARATE SUPPORT ENTERED ON MARCH
25, 1942, PETITIONER WAS ORDERED TO PAY TO RESPONDENT THE SUM OF $35
EACH WEEK. 

FN3  313 MASS. 232, 46 N.E.2D 1017(1943). 

FN4  THE FIRST ALLEGATION OF PETITIONER'S COMPLAINT STATED:  "THAT
PLAINTIFF FOR MORE THAN SIX WEEKS LAST PAST AND IMMEDIATELY PRECEDING
THE FILING OF THIS COMPLAINT HAS BEEN CONTINUOUSLY AND NOW IS, A BONA
FIDE RESIDENT OF, AND DURING ALL OF SAID PERIOD OF TIME, HAS HAD AND
NOW HAS HIS RESIDENCE WITHIN THE STATE OF NEVADA, AND HAS BEEN
PHYSICALLY, CORPORALLY AND ACTUALLY PRESENT IN SAID STATE DURING ALL OF
THE AFORESAID PERIOD OF TIME." 

FN5  THE NEVADA COURTS RECOGNIZE DOMICILE OF ONE OF THE PARTIES AS A
PREREQUISITE TO DIVORCE JURISDICTION, LATTERNER V. LATTERNER, 51 NEV.
285, 274 P. 194(1929).  POWER TO DECREE DIVORCES IN APPROPRIATE CASES
IS CONFERRED UPON THE DISTRICT COURTS BY NEVADA STATUTE.  NEV. COMP.
LAWS, SEC. 9460. 

FN6  INCORPORATED INTO THE DECREE WAS A WRITTEN AGREEMENT WHEREBY
PETITIONER WAS TO PAY RESPONDENT THE SUM OF $7,500 PLUS $35 PER WEEK SO
LONG AS SHE SHOULD REMAIN SINGLE.  PURSUANT TO THIS AGREEMENT,
PETITIONER PAID THE SUM OF $7,500 AT THE TIME THE DECREE WAS ENTERED. 

FN7  APPEALS LIE TO THE NEVADA SUPREME COURT IN DIVORCE CASES.  SEE,
E.G., AFRIAT V. AFRIAT, 61 NEV. 321, 117 P.2D 83(1941). 

FN8  APPARENTLY UPON ADVICE OF COUNSEL, PETITIONER HAD FAILED TO PAY
ANY OF THE WEEKLY INSTALLMENTS REQUIRED UNDER THE DECREE FOR SEPARATE
SUPPORT OR UNDER THE AGREEMENT INCORPORATED INTO THE DIVORCE DECREE
AFTER THE DATE OF THE DIVORCE DECREE. 

FN9  316 MASS. 423, 55 N.E.2D 702(1944). 

FN10  PETITIONER TESTIFIED THAT SINCE HIS ARRIVAL IN NEVADA IN JUNE,
1942, HE HAD BEEN DOMICILED IN THAT STATE.  HE STATED THAT HE WENT TO
NEVADA TO HELP HIS ASTHMA AND TO TAKE ADVANTAGE OF THE LIBERAL TAX LAWS
AND THAT HE INTENDED TO RESIDE IN NEVADA WHETHER OR NOT HE OBTAINED A
DIVORCE.  HE TESTIFIED FURTHER THAT FOLLOWING HIS MARRIAGE WITH DAWN
ALLEN, HE WENT TO WORCESTER, MASSACHUSETTS, FOR THE PURPOSE OF
DISPOSING OF TWO HOUSES WHICH HE OWNED.  HE SUBSEQUENTLY RETURNED TO
NEVADA IN MAY, 1943.  PETITIONER STATED THAT SHORTLY AFTER HIS RETURN
TO NEVADA, HE LEARNED THAT RESPONDENT HAD INSTITUTED CONTEMPT
PROCEEDINGS IN THE MASSACHUSETTS PROBATE COURT AND UPON ADVICE OF
COUNSEL WENT TO MASSACHUSETTS IN AUGUST, 1943, TO DEFEND THE ACTION. 

FN11  MASS. GEN. LAWS (TER.  ED.), C. 208, SEC. 39, PROVIDES:  "A
DIVORCE DECREED IN ANOTHER JURISDICTION ACCORDING TO THE LAWS THEREOF
BY A COURT HAVING JURISDICTION OF THE CAUSE AND OF BOTH THE PARTIES
SHALL BE VALID AND EFFECTUAL IN THIS COMMONWEALTH; BUT IF AN INHABITANT
OF THIS COMMONWEALTH GOES INTO ANOTHER JURISDICTION TO OBTAIN A DIVORCE
FOR A CAUSE OCCURRING HERE WHILE THE PARTIES RESIDED HERE, OR FOR A
CAUSE WHICH WOULD NOT AUTHORIZE A DIVORCE BY THE LAWS OF THIS
COMMONWEALTH, A DIVORCE SO OBTAINED SHALL BE OF NO FORCE OR EFFECT IN
THIS COMMONWEALTH." 

FN12  320 MASS. 295, 69 N.E.2D 793(1946). 

FN13  SEE ROSA V. ROSA, 296 MASS. 271, 5 N.E.2D 417(1936); COHEN V.
COHEN, 319 MASS. 31, 64 N.E.2D 689(1946).  CF. ESTIN V. ESTIN, POST, P.
541; KREIGER V. KREIGER, POST, P. 555. 

FN14  CONFER V. DISTRICT COURT, 49 NEV. 18, 234 P. 688, 236 P.
1097(1925).  AND SEE CHAMBLIN V. CHAMBLIN, 55 NEV. 146, 27 P.2D
1061(1934); CALVERT V. CALVERT, 61 NEV. 168, 122 P.2D 426(1942). 
..END :



TOOMER V. WITSELL, 334 U.S. 385 


NO. 415.  ARGUED JANUARY 13-14, 1948.  - DECIDED JUNE 7, 1948.  - 73
F.SUPP.  371, AFFIRMED IN PART AND REVERSED IN PART. 


FISHERMEN WHO WERE CITIZENS AND RESIDENTS OF GEORGIA, AND AN
INCORPORATED FISH DEALERS' ASSOCIATION, SUED IN A FEDERAL COURT IN
SOUTH CAROLINA TO ENJOIN STATE OFFICIALS FROM ENFORCING STATUTES OF
THAT STATE REGULATING COMMERCIAL SHRIMP FISHING IN THE THREE-MILE
MARITIME BELT OFF THE COAST, CHALLENGING THE STATUTES AS VIOLATIVE OF
THE FEDERAL CONSTITUTION.  HELD: 

1.  SINCE THE RECORD DOES NOT SHOW THAT ENFORCEMENT OF THE STATUTES
WOULD IRREPARABLY INJURE THE ASSOCIATION OF FISH DEALERS, THE
ASSOCIATION HAS NO STANDING TO ASK A FEDERAL COURT TO ENJOIN THEIR
ENFORCEMENT.  P. 391. 

2.  SINCE THE STATE LAW PERMITS ANY TAXPAYER WHO BELIEVES A TAX
ILLEGAL TO PAY IT UNDER PROTEST AND SUE IN A STATE COURT TO RECOVER THE
AMOUNT SO PAID, AND SINCE THE INDIVIDUAL PLAINTIFFS MADE NO SHOWING
THAT THEY COULD NOT UTILIZE THAT PROCEDURE TO RAISE THEIR
CONSTITUTIONAL OBJECTIONS TO A STATUTE IMPOSING UPON NON-RESIDENTS AN
INCOME TAX ON PROFITS FROM OPERATIONS IN THE STATE, IT CANNOT BE SAID
THAT THEY ARE WITHOUT AN ADEQUATE REMEDY AT LAW; AND EQUITABLE RELIEF
WAS PROPERLY DENIED AS TO THAT STATUTE.  PP. 391-392. 

3.  SINCE DEFIANCE OF OTHER STATUTES DEFENDANTS WERE ATTEMPTING TO
ENFORCE WOULD INVOLVE RISKS OF HEAVY FINES AND LONG IMPRISONMENT, AND
SINCE COMPLIANCE WITH THEM OR WITHDRAWAL FROM FURTHER FISHING UNTIL A
TEST CASE COULD BE LITIGATED TO A FINAL CONCLUSION WOULD RESULT IN
SUBSTANTIAL FINANCIAL LOSSES FOR WHICH NO COMPENSATION COULD BE
OBTAINED UNDER THE LAWS OF THE STATE, THE INDIVIDUAL PLAINTIFFS
SUFFICIENTLY SHOWED THE IMMINENCE OF IRREPARABLE INJURY FOR WHICH THERE
WAS NO PLAIN, ADEQUATE AND COMPLETE REMEDY AT LAW; AND, IF THOSE
STATUTES WERE UNCONSTITUTIONAL, EQUITABLE RELIEF AGAINST THEIR
ENFORCEMENT WAS APPROPRIATE.  PP. 391-392. 

4.  SINCE THE FACT THAT SOME OF THE INDIVIDUAL PLAINTIFFS HAD
PREVIOUSLY BEEN CONVICTED OF SHRIMPING OUT OF SEASON AND IN INLAND
WATERS HAD NO RELATION TO THE CONSTITUTIONALITY OF THE CHALLENGED
STATUTES, THIS MISCONDUCT DID NOT CALL FOR APPLICATION OF THE CLEAN
HANDS MAXIM.  P. 393. 

5.  SINCE THE PRESENT CASE EVINCES NO CONFLICT BETWEEN SOUTH
CAROLINA'S REGULATORY SCHEME AND ANY ASSERTION OF FEDERAL POWER, THE
STATE HAS SUFFICIENT INTERESTS IN THE SHRIMP FISHERY WITHIN THREE MILES
OF ITS COAST SO THAT IT MAY EXERCISE ITS POLICE POWER TO PROTECT AND
REGULATE THAT FISHERY - WITHIN THE CONFINES OF GENERALLY APPLICABLE
CONSTITUTIONAL LIMITATIONS.  PP. 393-394. 

6.  SECTION 3374, S.C. CODE, WHICH IMPOSES A TAX OF 1/8[ A POUND ON
GREEN SHRIMP TAKEN IN THE MARITIME BELT, DOES NOT TAX IMPORTS OR UNDULY
BURDEN INTERSTATE COMMERCE IN VIOLATION OF ART. I, SECS. 8 AND 10, OF
THE CONSTITUTION.  PP. 394-395. 

7.  SECTION 3379, S.C. CODE, REQUIRING NON-RESIDENTS OF SOUTH
CAROLINA TO PAY A LICENSE FEE OF $2,500 FOR EACH SHRIMP BOAT AND
RESIDENTS TO PAY A FEE OF ONLY $25, VIOLATES THE PRIVILEGES AND
IMMUNITIES CLAUSE OF ART. IV, SEC. 2, OF THE CONSTITUTION.  PP. 395
403. 

(A)  THE PRIVILEGES AND IMMUNITIES CLAUSE WAS INTENDED TO OUTLAW
CLASSIFICATIONS BASED ON THE FACT OF NON-CITIZENSHIP UNLESS THERE IS
SOMETHING TO INDICATE THAT NON-CITIZENS CONSTITUTE A PECULIAR SOURCE OF
THE EVIL AT WHICH THE STATUTE IS AIMED; AND IN THIS CASE THERE IS NO
CONVINCING SHOWING OF A REASONABLE RELATIONSHIP BETWEEN THE ALLEGED
DANGER TO THE SHRIMP SUPPLY REPRESENTED BY NON-CITIZENS, AS A CLASS,
AND THE SEVERE DISCRIMINATION PRACTICED UPON THEM.  PP. 396-399. 

(B)  COMMERCIAL SHRIMPING IN THE MARGINAL SEA, LIKE OTHER COMMON
CALLINGS, IS WITHIN THE PURVIEW OF THE PRIVILEGES AND IMMUNITIES
CLAUSE.  MCCREADY V. VIRGINIA, 94 U.S. 391, DISTINGUISHED.  PP. 399
403. 

8.  SECTION 3414, S.C. CODE, WHICH REQUIRES THAT OWNERS OF SHRIMP
BOATS FISHING IN THE MARITIME BELT OFF SOUTH CAROLINA DOCK AT A SOUTH
CAROLINA PORT AND UNLOAD, PACK, AND STAMP THEIR CATCH (WITH A TAX
STAMP) BEFORE "SHIPPING OR TRANSPORTING IT TO ANOTHER STATE," BURDENS
INTERSTATE COMMERCE IN SHRIMP IN VIOLATION OF THE COMMERCE CLAUSE OF
ART. I, SEC. 8, OF THE CONSTITUTION.  GEER V. CONNECTICUT, 161 U.S.
519, DISTINGUISHED.  PP. 403-407. 

TOOMER ET AL. V. WITSELL ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF SOUTH CAROLINA. 

A FEDERAL DISTRICT COURT DENIED AN INJUNCTION AGAINST THE ENFORCEMENT
OF CERTAIN ALLEGEDLY UNCONSTITUTIONAL SOUTH CAROLINA STATUTES GOVERNING
COMMERCIAL SHRIMP FISHING IN THE THREE-MILE MARITIME BELT OFF THE COAST
OF THAT STATE.  73 F.SUPP.  371.  ON DIRECT APPEAL TO THIS COURT,
AFFIRMED IN PART AND REVERSED IN PART, P. 407. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT TO ENJOIN AS UNCONSTITUTIONAL THE ENFORCEMENT OF
SEVERAL SOUTH CAROLINA STATUTES GOVERNING COMMERCIAL SHRIMP FISHING IN
THE THREE-MILE MARITIME BELT OFF THE COAST OF THAT STATE.  APPELLANTS,
WHO INITIATED THE ACTION, ARE FIVE INDIVIDUAL FISHERMEN, ALL CITIZENS
AND RESIDENTS OF GEORGIA, AND A NON-PROFIT FISH DEALERS' ORGANIZATION
INCORPORATED IN FLORIDA.  APPELLEES ARE SOUTH CAROLINA OFFICIALS
CHARGED WITH ENFORCEMENT OF THE STATUTES. 

THE THREE-JUDGE FEDERAL DISTRICT COURT WHICH WAS CONVENED TO HEAR THE
CASE  FN1  UPHELD THE STATUTES, DENIED AN INJUNCTION AND DISMISSED THE
SUIT.  FN2  ON DIRECT APPEAL FROM THAT JUDGMENT FN3  WE NOTED PROBABLE
JURISDICTION. 

THE FISHERY WHICH SOUTH CAROLINA ATTEMPTS TO REGULATE BY THE STATUTES
IN QUESTION IS PART OF A LARGER SHRIMP FISHERY EXTENDING FROM NORTH
CAROLINA TO FLORIDA.  FN4 MOST OF THE SHRIMP IN THIS AREA ARE OF A
MIGRATORY TYPE, SWIMMING SOUTH IN THE LATE SUMMER AND FALL AND
RETURNING NORTHWARD IN THE SPRING.  SINCE THERE IS NO FEDERAL
REGULATION OF THE FISHERY, THE FOUR STATES MOST INTIMATELY CONCERNED
HAVE GONE THEIR SEPARATE WAYS IN DEVISING CONSERVATION AND OTHER
REGULATORY MEASURES.  WHILE ACTION BY THE STATES HAS FOLLOWED SOMEWHAT
PARALLEL LINES, EFFORTS TO SECURE UNIFORMITY THROUGHOUT THE FISHERY
HAVE BY AND LARGE BEEN FRUITLESS.  FN5  BECAUSE OF THE INTEGRAL NATURE
OF THE FISHERY, MANY COMMERCIAL SHRIMPERS, INCLUDING THE APPELLANTS,
WOULD LIKE TO START TRAWLING OFF THE CAROLINAS IN THE SUMMER AND THEN
FOLLOW THE SHRIMP DOWN THE COAST TO FLORIDA.  EACH STATE HAS BEEN
DESIROUS OF SECURING FOR ITS RESIDENTS THE OPPORTUNITY TO SHRIMP IN
THIS WAY, BUT SOME HAVE APPARENTLY BEEN MORE CONCERNED WITH CHANNELING
TO THEIR OWN RESIDENTS THE BUSINESS DERIVED FROM LOCAL WATERS. 
RESTRICTIONS ON NON-RESIDENT FISHING IN THE MARGINAL SEA, AND EVEN
PROHIBITIONS AGAINST IT, HAVE NOW INVITED RETALIATION TO THE POINT THAT
THE FISHERY IS EFFECTIVELY PARTITIONED AT THE STATE LINES; BILATERAL
BARGAINING ON AN OFFICIAL LEVEL HAS COME TO BE THE ONLY METHOD WHEREBY
ANY ONE OF THE STATES CAN OBTAIN FOR ITS CITIZENS THE RIGHT TO SHRIMP
IN WATERS ADJACENT TO THE OTHER STATES.  FN6 

SOUTH CAROLINA FORBIDS TRAWLING FOR SHRIMP IN THE STATE'S INLAND
WATERS,  FN7  WHICH ARE THE HABITAT OF THE YOUNG SHRIMP FOR THE FIRST
FEW MONTHS OF THEIR LIFE.  IT ALSO PROVIDES FOR A CLOSED SEASON IN THE
THREE-MILE MARITIME BELT DURING THE SPAWNING SEASON, FROM MARCH 1 TO
JULY 1.  FN8 THE VALIDITY OF THESE REGULATIONS IS NOT QUESTIONED. 

THE STATUTES APPELLANTS CHALLENGE RELATE TO SHRIMPING DURING THE OPEN
SEASON IN THE THREE-MILE BELT:  SECTION 3300 OF THE SOUTH CAROLINA CODE
PROVIDES THAT THE WATERS IN THAT AREA SHALL BE "A COMMON FOR THE PEOPLE
OF THE STATE FOR THE TAKING OF FISH."  FN9  SECTION 3374 IMPOSES A TAX
OF 1/8[ A POUND ON GREEN, OR RAW, SHRIMP TAKEN IN THOSE WATERS.  FN10
$25 FOR EACH SHRIMP BOAT OWNED BY A RESIDENT, AND OF $2,500 FOR EACH
ONE OWNED BY A NON-RESIDENT.  FN11  ANOTHER STATUTE, NOT INTEGRATED IN
THE CODE, CONDITIONS THE ISSUANCE OF NON-RESIDENT LICENSES FOR 1948 AND
THE YEARS THEREAFTER ON SUBMISSION OF PROOF THAT THE APPLICANTS HAVE
PAID SOUTH CAROLINA INCOME TAXES ON ALL PROFITS FROM OPERATIONS IN THAT
STATE DURING THE PRECEDING YEAR.  FN12  AND SEC. 3414 REQUIRES THAT ALL
BOATS LICENSED TO TRAWL FOR SHRIMP IN THE STATE'S WATERS DOCK AT A
SOUTH CAROLINA PORT AND UNLOAD, PACK, AND STAMP THEIR CATCH "BEFORE
SHIPPING OR TRANSPORTING IT TO ANOTHER STATE OR THE WATERS THEREOF." 
FN13 VIOLATION OF THE FISHING LAWS ENTAILS SUSPENSION OF THE VIOLATOR'S
LICENSE AS WELL AS A MAXIMUM OF A $1,000 FINE, IMPRISONMENT FOR A YEAR,
OR A COMBINATION OF A $500 FINE AND A YEAR'S IMPRISONMENT.  FN14 

FIRST.  WE ARE CONFRONTED AT THE OUTSET WITH APPELLEES' CONTENTION,
REJECTED BY THE DISTRICT COURT, THAT INJUNCTIVE RELIEF IS INAPPROPRIATE
IN THIS CASE, REGARDLESS OF THE VALIDITY OF THE CHALLENGED STATUTES,
SINCE APPELLANTS FAILED TO SHOW THE IMMINENCE OF IRREPARABLE INJURY AND
DID NOT COME INTO COURT WITH CLEAN HANDS. 

AS TO THE CORPORATE APPELLANT, WE AGREE WITH THE APPELLEES THAT THERE
HAS BEEN NO SHOWING THAT ENFORCEMENT OF THE STATUTES WOULD WORK AN
IRREPARABLE INJURY.  THE RECORD SHOWS ONLY THAT THE CORPORATION IS AN
ASSOCIATION OF FISH DEALERS AND THAT IT OPERATES NO FISHING BOATS. 
INDEED, NEITHER THE RECORD NOR THE APPELLANTS' BRIEF SHEDS ANY LIGHT ON
HOW THE STATUTES AFFECT THE CORPORATION, LET ALONE HOW THEIR
ENFORCEMENT WILL CAUSE IT IRREPARABLE INJURY.  UNDER SUCH
CIRCUMSTANCES, THE CORPORATION HAS NO STANDING TO ASK A FEDERAL COURT
TO TAKE THE EXTRAORDINARY STEP OF RESTRAINING ENFORCEMENT OF THE STATE
STATUTES.  THE REMAINDER OF THIS OPINION WILL THEREFORE BE ADDRESSED TO
THE INDIVIDUAL APPELLANTS' CASE. 

AS TO THEM, IT IS AGREED THAT THE APPELLEES WERE ATTEMPTING TO
ENFORCE THE STATUTES.  IT IS ALSO CLEAR THAT COMPLIANCE WITH ANY BUT
THE INCOME TAX STATUTE WOULD HAVE REQUIRED PAYMENT OF LARGE SUMS OF
MONEY FOR WHICH SOUTH CAROLINA PROVIDES NO MEANS OF RECOVERY, THAT
DEFIANCE WOULD HAVE CARRIED WITH IT THE RISK OF HEAVY FINES AND LONG
IMPRISONMENT, AND THAT WITHDRAWAL FROM FURTHER FISHING UNTIL A TEST
CASE HAD BEEN TAKEN THROUGH THE SOUTH CAROLINA COURTS AND PERHAPS TO
THIS COURT WOULD HAVE RESULTED IN A SUBSTANTIAL LOSS OF BUSINESS FOR
WHICH NO COMPENSATION COULD BE OBTAINED.  EXCEPT AS TO THE INCOME TAX
STATUTE, WE CONCLUDE THAT APPELLANTS SUFFICIENTLY SHOWED THE IMMINENCE
OF IRREPARABLE INJURY FOR WHICH THERE WAS NO PLAIN, ADEQUATE AND
COMPLETE REMEDY AT LAW.  FN15 

APPELLANTS' POSITION ON THE INCOME TAX STATUTE  FN16  IS THAT IT IS
UNCONSTITUTIONAL FOR SOUTH CAROLINA TO REQUIRE GEORGIA RESIDENTS TO PAY
SOUTH CAROLINA INCOME TAXES ON PROFITS MADE FROM OPERATIONS IN SOUTH
CAROLINA WATERS.  ANOTHER SOUTH CAROLINA STATUTE, HOWEVER, PERMITS ANY
TAXPAYER WHO BELIEVES A TAX TO BE "ILLEGAL FOR ANY CAUSE" TO PAY THE
TAX UNDER PROTEST AND THEN SUE IN A STATE COURT TO RECOVER THE AMOUNTS
SO PAID.  FN17  IN THE ABSENCE OF ANY SHOWING BY APPELLANTS THAT THEY
COULD NOT TAKE ADVANTAGE OF THIS PROCEDURE TO RAISE THEIR
CONSTITUTIONAL OBJECTIONS TO THE TAX, WE CANNOT SAY THAT THEY DO NOT
HAVE AN ADEQUATE REMEDY AT LAW. 

SOME OF THE INDIVIDUAL APPELLANTS HAD PREVIOUSLY BEEN CONVICTED OF
SHRIMPING OUT OF SEASON AND IN INLAND WATERS.  THE DISTRICT COURT HELD
THAT THIS PREVIOUS MISCONDUCT, NOT HAVING ANY RELATION TO THE
CONSTITUTIONALITY OF THE CHALLENGED STATUTES, DID NOT CALL FOR
APPLICATION OF THE CLEAN HANDS MAXIM.  WE AGREE. 

SECOND.  THE APPELLANTS TOO PRESS A CONTENTION WHICH, IF CORRECT,
WOULD DISPOSE OF THE CASE.  THEY URGE THAT SOUTH CAROLINA HAS NO
JURISDICTION OVER COASTAL WATERS BEYOND THE LOW-WATER MARK.  IN THE
COURT BELOW UNITED STATES V. CALIFORNIA, 332 U.S. 19(1947), WAS RELIED
UPON FOR THIS PROPOSITION.  HERE APPELLANTS SEEM TO CONCEDE, AND
CORRECTLY SO, THAT SUCH IS NEITHER THE HOLDING NOR THE IMPLICATION OF
THAT CASE; FOR IN DECIDING THAT THE UNITED STATES, WHERE IT ASSERTED
ITS CLAIM, HAD PARAMOUNT RIGHTS IN THE THREE-MILE BELT, THE COURT
POINTEDLY QUOTED AND SUPPLIED EMPHASIS TO A STATEMENT IN SKIRIOTES V.
FLORIDA, 313 U.S. 69, 75(1941), THAT "IT IS ALSO CLEAR THAT FLORIDA HAS
AN INTEREST IN THE PROPER MAINTENANCE OF THE SPONGE FISHERY AND THAT
THE (STATE) STATUTE SO FAR AS APPLIED TO CONDUCT WITHIN THE TERRITORIAL
WATERS OF FLORIDA, IN THE ABSENCE OF CONFLICTING FEDERAL LEGISLATION,
IS WITHIN THE POLICE POWER OF THE STATE."  FN18 

SINCE THE PRESENT CASE EVINCES NO CONFLICT BETWEEN SOUTH CAROLINA'S
REGULATORY SCHEME AND ANY ASSERTION OF FEDERAL POWER, THE DISTRICT
COURT PROPERLY CONCLUDED THAT THE STATE HAS SUFFICIENT INTERESTS IN THE
SHRIMP FISHERY WITHIN THREE MILES OF ITS COAST SO THAT IT MAY EXERCISE
ITS POLICE POWER TO PROTECT AND REGULATE THAT FISHERY.  FN19 

IT DOES NOT FOLLOW FROM THE EXISTENCE OF POWER TO REGULATE, HOWEVER,
THAT SUCH POWER NEED NOT BE EXERCISED WITHIN THE CONFINES OF GENERALLY
APPLICABLE CONSTITUTIONAL LIMITATIONS.  IN THE VIEW WE TAKE, THE HEART
OF THIS CASE IS WHETHER SOUTH CAROLINA'S ADMITTED POWER HAS BEEN SO
EXERCISED.  WE NOW PROCEED TO VARIOUS ASPECTS OF THAT PROBLEM. 

THIRD.  APPELLANTS CONTEND THAT SEC. 3374,  FN20  WHICH IMPOSES A TAX
OF 1/8[ A POUND ON GREEN SHRIMP TAKEN IN THE MARITIME BELT, TAXES
IMPORTS AND UNDULY BURDENS INTERSTATE COMMERCE IN VIOLATION OF SECS. 8
AND 10 OF ART. I OF THE CONSTITUTION.  WE AGREE WITH THE COURT BELOW
THAT THERE IS NO MERIT IN THIS POSITION. 

SINCE SOUTH CAROLINA HAS POWER TO REGULATE FISHING IN THE THREE-MILE
BELT, AT LEAST WHERE THE FEDERAL GOVERNMENT HAS MADE NO CONFLICTING
ASSERTION OF POWER, FISH CAUGHT IN THAT BELT CANNOT BE CONSIDERED
"IMPORTS" IN A REALISTIC SENSE OF THE WORD.  APPELLANTS URGE, HOWEVER,
THAT THE TAX IS IMPOSED ON SHRIMP CAUGHT OUTSIDE, AS WELL AS WITHIN,
THE THREE-MILE LIMIT.  ON ITS FACE THE STATUTE HAS NO SUCH EFFECT, AND
APPELLANTS CALL OUR ATTENTION TO NO SOUTH CAROLINA DECISION SO
INTERPRETING IT.  SINCE WE DO NOT HAVE THE BENEFIT OF INTERPRETATION BY
THE STATE COURTS AND SINCE THIS SUIT FOR AN INJUNCTION DOES NOT PRESENT
A CONCRETE FACTUAL SITUATION INVOLVING THE APPLICATION OF THE STATUTE
TO SHRIMPING BEYOND THE IMAGINARY THREE-MILE LINE, IT IS INAPPROPRIATE
FOR US TO RULE IN THE ABSTRACT ON THE EXTENT OF THE STATE'S POWER TO
TAX IN THIS REGARD.  FN21 

NOR DOES THE STATUTE VIOLATE THE COMMERCE CLAUSE.  IT DOES NOT
DISCRIMINATE AGAINST INTERSTATE COMMERCE IN SHRIMP, AND THE TAXABLE
EVENT, THE TAKING OF SHRIMP, OCCURS BEFORE THE SHRIMP CAN BE SAID TO
HAVE ENTERED THE FLOW OF INTERSTATE COMMERCE.  FN22 

FOURTH.  APPELLANTS' MOST VIGOROUS ATTACK IS DIRECTED AT SEC. 3379
FN23  WHICH, AS AMENDED IN 1947, REQUIRES NON-RESIDENTS OF SOUTH
CAROLINA TO PAY LICENSE FEES ONE HUNDRED TIMES AS GREAT AS THOSE WHICH
RESIDENTS MUST PAY.  THE PURPOSE AND EFFECT OF THIS STATUTE, THEY
CONTEND, IS NOT TO CONSERVE SHRIMP, BUT TO EXCLUDE NON-RESIDENTS AND
THEREBY CREATE A COMMERCIAL MONOPOLY FOR SOUTH CAROLINA RESIDENTS.  AS
SUCH, THE STATUTE IS SAID TO VIOLATE THE PRIVILEGES AND IMMUNITIES
CLAUSE OF ART. IV, SEC. 2, OF THE CONSTITUTION AND THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT. 

ARTICLE IV, SEC. 2, SO FAR AS RELEVANT, READS AS FOLLOWS: 

"THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL PRIVILEGES AND
IMMUNITIES OF CITIZENS IN THE SEVERAL STATES." 

THE PRIMARY PURPOSE OF THIS CLAUSE, LIKE THE CLAUSES BETWEEN WHICH IT
IS LOCATED - THOSE RELATING TO FULL FAITH AND CREDIT AND TO INTERSTATE
EXTRADITION OF FUGITIVES FROM JUSTICE - WAS TO HELP FUSE INTO ONE
NATION A COLLECTION OF INDEPENDENT, SOVEREIGN STATES.  IT WAS DESIGNED
TO INSURE TO A CITIZEN OF STATE A WHO VENTURES INTO STATE B THE SAME
PRIVILEGES WHICH THE CITIZENS OF STATE B ENJOY.  FN24  FOR PROTECTION
OF SUCH EQUALITY THE CITIZEN OF STATE A WAS NOT TO BE RESTRICTED TO THE
UNCERTAIN REMEDIES AFFORDED BY DIPLOMATIC PROCESSES AND OFFICIAL
RETALIATION.  FN25  "INDEED, WITHOUT SOME PROVISION OF THE KIND
REMOVING FROM THE CITIZENS OF EACH STATE THE DISABILITIES OF ALIENAGE
IN THE OTHER STATES, AND GIVING THEM EQUALITY OF PRIVILEGE WITH
CITIZENS OF THOSE STATES, THE REPUBLIC WOULD HAVE CONSTITUTED LITTLE
MORE THAN A LEAGUE OF STATES; IT WOULD NOT HAVE CONSTITUTED THE UNION
WHICH NOW EXISTS."  PAUL V. VIRGINIA, 8 WALL.  168, 180(1868). 

IN LINE WITH THIS UNDERLYING PURPOSE, IT WAS LONG AGO DECIDED THAT
ONE OF THE PRIVILEGES WHICH THE CLAUSE GUARANTEES TO CITIZENS OF STATE
A IS THAT OF DOING BUSINESS IN STATE B ON TERMS OF SUBSTANTIAL EQUALITY
WITH THE CITIZENS OF THAT STATE.  FN26 

LIKE MANY OTHER CONSTITUTIONAL PROVISIONS, THE PRIVILEGES AND
IMMUNITIES CLAUSE IS NOT AN ABSOLUTE.  IT DOES BAR DISCRIMINATION
AGAINST CITIZENS OF OTHER STATES WHERE THERE IS NO SUBSTANTIAL REASON
FOR THE DISCRIMINATION BEYOND THE MERE FACT THAT THEY ARE CITIZENS OF
OTHER STATES.  BUT IT DOES NOT PRECLUDE DISPARITY OF TREATMENT IN THE
MANY SITUATIONS WHERE THERE ARE PERFECTLY VALID INDEPENDENT REASONS FOR
IT.  THUS THE INQUIRY IN EACH CASE MUST BE CONCERNED WITH WHETHER SUCH
REASONS DO EXIST AND WHETHER THE DEGREE OF DISCRIMINATION BEARS A CLOSE
RELATION TO THEM.  FN27  THE INQUIRY MUST ALSO, OF COURSE, BE CONDUCTED
WITH DUE REGARD FOR THE PRINCIPLE THAT THE STATES SHOULD HAVE
CONSIDERABLE LEEWAY IN ANALYZING LOCAL EVILS AND IN PRESCRIBING
APPROPRIATE CURES. 

WITH THESE FACTORS IN MIND, WE TURN TO A CONSIDERATION OF THE
CONSTITUTIONALITY OF SEC. 3379. 

BY THAT STATUTE SOUTH CAROLINA PLAINLY AND FRANKLY DISCRIMINATES
AGAINST NON-RESIDENTS, AND THE RECORD LEAVES LITTLE DOUBT BUT WHAT THE
DISCRIMINATION IS SO GREAT THAT ITS PRACTICAL EFFECT IS VIRTUALLY
EXCLUSIONARY.  FN28  THIS THE APPELLEES DO NOT SERIOUSLY DISPUTE.  NOR
DO THEY ARGUE THAT SINCE THE STATUTE IS COUCHED IN TERMS OF RESIDENCE
IT IS OUTSIDE THE SCOPE OF THE PRIVILEGES AND IMMUNITIES CLAUSE, WHICH
SPEAKS OF CITIZENS.  SUCH AN ARGUMENT, WE AGREE, WOULD BE WITHOUT FORCE
IN THIS CASE.  FN29    AS JUSTIFICATION FOR THE STATUTE, APPELLEES URGE
THAT THE STATE'S OBVIOUS PURPOSE WAS TO CONSERVE ITS SHRIMP SUPPLY, AND
THEY SUGGEST THAT IT WAS DESIGNED TO HEAD OFF AN IMPENDING THREAT OF
EXCESSIVE TRAWLING.  THE RECORD CASTS SOME DOUBT ON THESE STATEMENTS. 
FN30  BUT IN ANY EVENT, APPELLEES' ARGUMENT ASSUMES THAT ANY MEANS
ADOPTED TO ATTAIN VALID OBJECTIVES NECESSARILY SQUARES WITH THE
PRIVILEGES AND IMMUNITIES CLAUSE.  IT OVERLOOKS THE PURPOSE OF THAT
CLAUSE, WHICH, AS INDICATED ABOVE, IS TO OUTLAW CLASSIFICATIONS BASED
ON THE FACT OF NON-CITIZENSHIP UNLESS THERE IS SOMETHING TO INDICATE
THAT NON-CITIZENS CONSTITUTE A PECULIAR SOURCE OF THE EVIL AT WHICH THE
STATUTE IS AIMED. 

IN THIS CONNECTION APPELLEES MENTION, WITHOUT FURTHER ELUCIDATION,
THE FISHING METHODS USED BY NON-RESIDENTS, THE SIZE OF THEIR BOATS, AND
THE ALLEGEDLY GREATER COST OF ENFORCING THE LAWS AGAINST THEM.  ONE
STATEMENT IN THE APPELLEES' BRIEF MIGHT ALSO BE CONSTRUED TO MEAN THAT
THE STATE'S CONSERVATION PROGRAM FOR SHRIMP REQUIRES EXPENDITURE OF
FUNDS BEYOND THOSE COLLECTED IN LICENSE FEES - FUNDS TO WHICH RESIDENTS
AND NOT NON-RESIDENTS CONTRIBUTE.  NOTHING IN THE RECORD INDICATES THAT
NON-RESIDENTS USE LARGER BOATS OR DIFFERENT FISHING METHODS THAN
RESIDENTS, THAT THE COST OF ENFORCING THE LAWS AGAINST THEM IS
APPRECIABLY GREATER, OR THAT ANY SUBSTANTIAL AMOUNT OF THE STATE'S
GENERAL FUNDS IS DEVOTED TO SHRIMP CONSERVATION.  BUT ASSUMING SUCH
WERE THE FACTS, THEY WOULD NOT NECESSARILY SUPPORT A REMEDY SO DRASTIC
AS TO BE A NEAR EQUIVALENT OF TOTAL EXCLUSION.  THE STATE IS NOT
WITHOUT POWER, FOR EXAMPLE, TO RESTRICT THE TYPE OF EQUIPMENT USED IN
ITS FISHERIES,  FN31  TO GRADUATE LICENSE FEES ACCORDING TO THE SIZE OF
THE BOATS,  FN32  OR EVEN TO CHARGE NON-RESIDENTS A DIFFERENTIAL WHICH
WOULD MERELY COMPENSATE THE STATE FOR ANY ADDED ENFORCEMENT BURDEN THEY
MAY IMPOSE OR FOR ANY CONSERVATION EXPENDITURES FROM TAXES WHICH ONLY
RESIDENTS PAY.  WE WOULD BE CLOSING OUR EYES TO REALITY, WE BELIEVE, IF
WE CONCLUDED THAT THERE WAS A REASONABLE RELATIONSHIP BETWEEN THE
DANGER REPRESENTED BY NON-CITIZENS, AS A CLASS, AND THE SEVERE
DISCRIMINATION PRACTICED UPON THEM. 

THUS, SEC. 3379 MUST BE HELD UNCONSTITUTIONAL UNLESS COMMERCIAL
SHRIMP FISHING IN THE MARITIME BELT FALLS WITHIN SOME UNEXPRESSED
EXCEPTION TO THE PRIVILEGES AND IMMUNITIES CLAUSE. 

APPELLEES STRENUOUSLY URGE THAT THERE IS SUCH AN EXCEPTION.  THEIR
ARGUMENT RUNS AS FOLLOWS: EVER SINCE ROMAN TIMES, ANIMALS FERAE
NATURAE, NOT HAVING BEEN REDUCED TO INDIVIDUAL POSSESSION AND
OWNERSHIP, HAVE BEEN CONSIDERED AS RES NULLIUS OR PART OF THE "NEGATIVE
COMMUNITY OF INTERESTS" AND HENCE SUBJECT TO CONTROL BY THE SOVEREIGN
OR OTHER GOVERNMENTAL AUTHORITY.  MORE RECENTLY THIS THOUGHT HAS BEEN
EXPRESSED BY SAYING THAT FISH AND GAME ARE THE COMMON PROPERTY OF ALL
CITIZENS OF THE GOVERNMENTAL UNIT AND THAT THE GOVERNMENT, AS A SORT OF
TRUSTEE, EXERCISES THIS "OWNERSHIP" FOR THE BENEFIT OF ITS CITIZENS. 
IN THE CASE OF FISH, IT HAS ALSO BEEN CONSIDERED THAT EACH GOVERNMENT
"OWNED" BOTH THE BEDS OF ITS LAKES, STREAMS, AND TIDEWATERS AND THE
WATERS THEMSELVES; HENCE IT MUST ALSO "OWN" THE FISH WITHIN THOSE
WATERS.  EACH GOVERNMENT MAY, THE ARGUMENT CONTINUES, REGULATE THE
CORPUS OF THE TRUST IN THE WAY BEST SUITED TO THE INTERESTS OF THE
BENEFICIAL OWNERS, ITS CITIZENS, AND MAY DISCRIMINATE AS IT SEES FIT
AGAINST PERSONS LACKING ANY BENEFICIAL INTEREST.  FINALLY, IT IS SAID
THAT THIS SPECIAL PROPERTY INTEREST, WHICH NATIONS AND SIMILAR
GOVERNMENTAL BODIES HAVE TRADITIONALLY HAD, IN THIS COUNTRY VESTED IN
THE COLONIAL GOVERNMENTS AND PASSED TO THE INDIVIDUAL STATES. 

LANGUAGE FREQUENTLY REPEATED BY THIS COURT APPEARS TO LEND SOME
SUPPORT TO THIS ANALYSIS.  FN33 BUT IN ONLY ONE CASE, MCCREADY V.
VIRGINIA, 94 U.S. 391(1876), HAS THE COURT ACTUALLY UPHELD STATE ACTION
DISCRIMINATING AGAINST COMMERCIAL FISHING OR HUNTING BY CITIZENS OF
OTHER STATES WHERE THERE WERE ADVANCED NO PERSUASIVE INDEPENDENT
REASONS JUSTIFYING THE DISCRIMINATION.  FN34  IN THAT CASE THE COURT
SANCTIONED A VIRGINIA STATUTE APPLIED SO AS TO PROHIBIT CITIZENS OF
OTHER STATES, BUT NOT VIRGINIA CITIZENS, FROM PLANTING OYSTERS IN THE
TIDAL WATERS OF THE WARE RIVER.  THE RIGHT OF VIRGINIANS IN VIRGINIA
WATERS, THE COURT SAID, WAS "A PROPERTY RIGHT, AND NOT A MERE PRIVILEGE
OR IMMUNITY OF CITIZENSHIP."  AND AN ANALOGY WAS DRAWN BETWEEN PLANTING
OYSTERS IN A RIVER BED AND PLANTING CORN IN STATE-OWNED LAND. 

IT WILL BE NOTED THAT THERE ARE AT LEAST TWO FACTUAL DISTINCTIONS
BETWEEN THE PRESENT CASE AND THE MCCREADY CASE.  FIRST, THE MCCREADY
CASE RELATED TO FISH WHICH WOULD REMAIN IN VIRGINIA UNTIL REMOVED BY
MAN.  THE PRESENT CASE, ON THE OTHER HAND, DEALS WITH FREE-SWIMMING
FISH WHICH MIGRATE THROUGH THE WATERS OF SEVERAL STATES AND ARE OFF THE
COAST OF SOUTH CAROLINA ONLY TEMPORARILY.  SECONDLY, THE MCCREADY CASE
INVOLVED REGULATION OF FISHING IN INLAND WATERS, WHEREAS THE STATUTE
NOW QUESTIONED IS DIRECTED AT REGULATION OF SHRIMPING IN THE MARGINAL
SEA. 

THUS WE HAVE, ON THE ONE HAND, A SINGLE PRECEDENT WHICH MIGHT BE
TAKEN AS READING AN EXCEPTION INTO THE PRIVILEGES AND IMMUNITIES CLAUSE
AND, ON THE OTHER, A CASE WHICH DOES NOT FALL DIRECTLY WITHIN THAT
EXCEPTION.  VIEWED IN THIS LIGHT, THE QUESTION BEFORE US COMES DOWN TO
WHETHER THE REASONS WHICH EVOKED THE EXCEPTION CALL FOR ITS EXTENSION
TO A CASE INVOLVING THE FACTUAL DISTINCTIONS HERE PRESENTED. 

HOWEVER SATISFACTORILY THE OWNERSHIP THEORY EXPLAINS THE MCCREADY
CASE, THE VERY FACTORS WHICH MAKE THE PRESENT CASE DISTINGUISHABLE
RENDER THAT THEORY BUT A WEAK PROP FOR THE SOUTH CAROLINA STATUTE. 
THAT THE SHRIMP ARE MIGRATORY MAKES APPOSITE MR. JUSTICE HOLMES'
STATEMENT IN MISSOURI V. HOLLAND, 252 U.S. 416, 434(1920), THAT "TO PUT
THE CLAIM OF THE STATE UPON TITLE IS TO LEAN UPON A SLENDER REED.  WILD
BIRDS ARE NOT IN THE POSSESSION OF ANYONE; AND POSSESSION IS THE
BEGINNING OF OWNERSHIP."  INDEED, ONLY FIFTEEN YEARS AFTER THE MCCREADY
DECISION, A UNANIMOUS COURT INDICATED THAT THE RULE OF THAT CASE MIGHT
NOT APPLY TO FREE-SWIMMING FISH.  FN35  THE FACT THAT IT IS ACTIVITY IN
THE THREE-MILE BELT WHICH THE SOUTH CAROLINA STATUTE REGULATES IS OF
EQUAL RELEVANCE IN CONSIDERING THE APPLICABILITY OF THE OWNERSHIP
DOCTRINE.  WHILE UNITED STATES V. CALIFORNIA, 332 U.S. 19(1947), AS
INDICATED ABOVE, DOES NOT PRECLUDE ALL STATE REGULATION OF ACTIVITY IN
THE MARGINAL SEA, THE CASE DOES HOLD THAT NEITHER THE THIRTEEN ORIGINAL
COLONIES NOR THEIR SUCCESSOR STATES SEPARATELY ACQUIRED "OWNERSHIP" OF
THE THREE-MILE BELT.  FN36 

THE WHOLE OWNERSHIP THEORY, IN FACT, IS NOW GENERALLY REGARDED AS BUT
A FICTION EXPRESSIVE IN LEGAL SHORTHAND OF THE IMPORTANCE TO ITS PEOPLE
THAT A STATE HAVE POWER TO PRESERVE AND REGULATE THE EXPLOITATION OF AN
IMPORTANT RESOURCE.  FN37  AND THERE IS NO NECESSARY CONFLICT BETWEEN
THAT VITAL POLICY CONSIDERATION AND THE CONSTITUTIONAL COMMAND THAT THE
STATE EXERCISE THAT POWER, LIKE ITS OTHER POWERS, SO AS NOT TO
DISCRIMINATE WITHOUT REASON AGAINST CITIZENS OF OTHER STATES. 

THESE CONSIDERATIONS LEAD US TO THE CONCLUSION THAT THE MCCREADY
EXCEPTION TO THE PRIVILEGES AND IMMUNITIES CLAUSE, IF SUCH IT BE,
SHOULD NOT BE EXPANDED TO COVER THIS CASE. 

THUS WE HOLD THAT COMMERCIAL SHRIMPING IN THE MARGINAL SEA, LIKE
OTHER COMMON CALLINGS, IS WITHIN THE PURVIEW OF THE PRIVILEGES AND
IMMUNITIES CLAUSE.  AND SINCE WE HAVE PREVIOUSLY CONCLUDED THAT THE
REASONS ADVANCED IN SUPPORT OF THE STATUTE DO NOT BEAR A REASONABLE
RELATIONSHIP TO THE HIGH DEGREE OF DISCRIMINATION PRACTICED UPON
CITIZENS OF OTHER STATES, IT FOLLOWS THAT SEC. 3379 VIOLATES ART. IV,
SEC. 2, OF THE CONSTITUTION. 

APPELLANTS MAINTAIN THAT BY A PARITY OF REASONING THE STATUTE ALSO
CONTRAVENES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
THAT MAY WELL BE TRUE, BUT WE DO NOT PASS ON THIS ARGUMENT SINCE IT IS
UNNECESSARY TO DISPOSITION OF THE PRESENT CASE. 

FIFTH.  APPELLANTS CONTEND THAT SEC. 3414,  FN38  WHICH REQUIRES THAT
OWNERS OF SHRIMP BOATS FISHING IN THE MARITIME BELT OFF SOUTH CAROLINA
DOCK AT A SOUTH CAROLINA PORT AND UNLOAD, PACK, AND STAMP THEIR CATCH
(WITH A TAX STAMP) BEFORE "SHIPPING OR TRANSPORTING IT TO ANOTHER
STATE," BURDENS INTERSTATE COMMERCE IN SHRIMP IN VIOLATION OF ART. I,
SEC. 8, OF THE CONSTITUTION. 

THE RECORD SHOWS THAT A HIGH PROPORTION OF THE SHRIMP CAUGHT IN THE
WATERS ALONG THE SOUTH CAROLINA COAST, BOTH BY APPELLANTS AND BY
OTHERS, IS SHIPPED IN INTERSTATE COMMERCE.  THERE WAS ALSO
UNCONTRADICTED EVIDENCE THAT APPELLANTS' COSTS WOULD BE MATERIALLY
INCREASED BY THE NECESSITY OF HAVING THEIR SHRIMP UNLOADED AND PACKED
IN SOUTH CAROLINA PORTS RATHER THAN AT THEIR HOME BASES IN GEORGIA
WHERE THEY MAINTAIN THEIR OWN DOCKING, WAREHOUSING, REFRIGERATION AND
PACKING FACILITIES.  IN ADDITION, AN INEVITABLE CONCOMITANT OF A
STATUTE REQUIRING THAT WORK BE DONE IN SOUTH CAROLINA, EVEN THOUGH THAT
BE ECONOMICALLY DISADVANTAGEOUS TO THE FISHERMEN, IS TO DIVERT TO SOUTH
CAROLINA EMPLOYMENT AND BUSINESS WHICH MIGHT OTHERWISE GO TO GEORGIA;
THE NECESSARY TENDENCY OF THE STATUTE IS TO IMPOSE AN ARTIFICIAL
RIGIDITY ON THE ECONOMIC PATTERN OF THE INDUSTRY. 

APPELLEES DO NOT CONTEST THE FACT THAT THE STATUTE THEREBY BURDENS,
TO SOME EXTENT AT LEAST, INTERSTATE COMMERCE IN SHRIMP CAUGHT IN WATERS
OFF THE SOUTH CAROLINA COAST.  AGAIN, HOWEVER, THEY RELY ON THE FACT
THAT THE COMMERCE AFFECTED IS IN FISH RATHER THAN SOME OTHER
COMMODITY.  THEY URGE THAT SOUTH CAROLINA, BECAUSE OF ITS OWNERSHIP OF
THE SHRIMP, COULD CONSTITUTIONALLY PROHIBIT ALL SHIPMENTS TO OTHER
STATES.  IT FOLLOWS, THEY IMPLY, THAT THE STATE COULD IMPOSE LESSER
RESTRICTIONS, SUCH AS THOSE HERE AT ISSUE, ON OUT-OF-STATE SHIPMENTS. 

THERE IS CONSIDERABLE AUTHORITY, STARTING WITH GEER V. CONNECTICUT,
161 U.S. 519(1896), TO SUPPORT THE CONTENTION THAT A STATE MAY CONFINE
THE CONSUMPTION OF ITS FISH AND GAME WHOLLY WITHIN THE STATE'S LIMITS. 
WE NEED NOT PAUSE TO CONSIDER WHETHER THIS POWER EXTENDS TO FREE
SWIMMING FISH IN THE THREE-MILE BELT, FOR EVEN AS APPLIED TO FISH TAKEN
IN INLAND WATERS IT HAS BEEN HELD THAT WHERE A STATE DID NOT EXERCISE
ITS FULL POWER, BUT ON THE CONTRARY PERMITTED SHIPMENTS TO OTHER
STATES, IT COULD NOT AT THE SAME TIME CONDITION SUCH SHIPMENTS SO AS TO
BURDEN INTERSTATE COMMERCE.  IN FOSTER PACKING CO. V. HAYDEL, 278 U.S.
1(1928), THE COURT HELD IT WAS AN ABUSE OF DISCRETION FOR A DISTRICT
COURT NOT TO ENTER AN ORDER TEMPORARILY ENJOINING, AS AN
UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE, ENFORCEMENT OF A
LOUISIANA STATUTE WHICH PERMITTED THE SHIPMENT OF SHRIMP FROM LOUISIANA
TO OTHER STATES ONLY IF THE HEADS AND HULLS HAD PREVIOUSLY BEEN
REMOVED.  IN DISTINGUISHING THE GEER CASE, THE FOLLOWING COMMENT WAS
MADE: 

"AS THE REPRESENTATIVE OF ITS PEOPLE, THE STATE MIGHT HAVE RETAINED
THE SHRIMP FOR CONSUMPTION AND USE THEREIN.  ...  BUT BY PERMITTING ITS
SHRIMP TO BE TAKEN AND ALL THE PRODUCTS THEREOF TO BE SHIPPED AND SOLD
IN INTERSTATE COMMERCE, THE STATE NECESSARILY RELEASES ITS HOLD AND, AS
TO THE SHRIMP SO TAKEN, DEFINITELY TERMINATES ITS CONTROL.  CLEARLY
SUCH AUTHORIZATION AND THE TAKING IN PURSUANCE THEREOF PUT AN END TO
THE TRUST UPON WHICH THE STATE IS DEEMED TO OWN OR CONTROL THE SHRIMP
FOR THE BENEFIT OF ITS PEOPLE.  AND THOSE TAKING THE SHRIMP UNDER THE
AUTHORITY OF THE ACT NECESSARILY THEREBY BECOME ENTITLED TO THE RIGHTS
OF PRIVATE OWNERSHIP AND THE PROTECTION OF THE COMMERCE CLAUSE."  FN39 

IN JOHNSON V. HAYDEL, 278 U.S. 16(1928), THE SAME CONCLUSION WAS
REACHED, ON THE BASIS OF THE FOSTER PACKING CO. CASE, AS TO A SIMILAR
STATUTE RELATING TO OYSTERS. 

SIMILARLY IN THE PRESENT CASE, SOUTH CAROLINA HAS NOT ATTEMPTED TO
RETAIN FOR THE USE OF ITS OWN PEOPLE THE SHRIMP CAUGHT IN THE MARGINAL
SEA.  INDEED, THE STATE HAS BEEN EAGER TO STIMULATE INTERSTATE
SHIPMENTS AND SALES AS A MEANS OF INCREASING THE EMPLOYMENT AND INCOME
OF ITS SHRIMP INDUSTRY.  FN40  THUS EVEN IF WE ASSUME THAT SOUTH
CAROLINA COULD RETAIN FOR LOCAL CONSUMPTION SHRIMP CAUGHT IN THE
MARITIME BELT TO THE SAME EXTENT AS IF THEY WERE TAKEN IN INLAND
WATERS, THE GEER CASE WOULD NOT SUPPORT SEC. 3414. 

IN UPHOLDING THIS STATUTE, THE COURT BELOW ADDUCED A REASON NOT
ADVANCED BY APPELLEES, THAT THE REQUIREMENTS AS TO DOCKING, UNLOADING,
PACKING, AND AFFIXING A TAX STAMP WERE A PROPER MEANS OF INSURING
COLLECTION OF THE 1/8[ A POUND TAX.  FN41  BUT THE IMPORTANCE OF HAVING
COMMERCE BETWEEN THE FORTY-EIGHT STATES FLOW UNIMPEDED BY LOCAL
BARRIERS PERSUADES US THAT STATE RESTRICTIONS INIMICAL TO THE COMMERCE
CLAUSE SHOULD NOT BE APPROVED SIMPLY BECAUSE THEY FACILITATE IN SOME
MEASURE ENFORCEMENT OF A VALID TAX. 

THUS WE HOLD THAT SEC. 3414 VIOLATES THE COMMERCE CLAUSE OF ART. I,
SEC. 8 OF THE CONSTITUTION. 

TO SUM UP, WE HOLD THAT THE DISTRICT COURT HAD JURISDICTION TO
ENTERTAIN THE ATTACKS PRESSED BY THE INDIVIDUAL APPELLANTS, BUT NOT THE
CORPORATE APPELLANT, ON ALL THE STATUTES SAVE THE ONE RELATING TO
INCOME TAXES; THAT SOUTH CAROLINA HAS POWER, IN THE ABSENCE OF A
CONFLICTING FEDERAL CLAIM, TO REGULATE FISHING IN THE MARGINAL SEA; AND
THAT IN SEC. 3374 OF THE SOUTH CAROLINA CODE, THOUGH NOT IN SECS. 3379
AND 3414, THE STATE HAS EXERCISED THAT POWER IN A MANNER CONSISTENT
WITH RESTRAINTS WHICH THE CONSTITUTION IMPOSES UPON THE STATES.  THE
DISTRICT COURT'S JUDGMENT REFUSING EQUITABLE RELIEF IS AFFIRMED WITH
RESPECT TO SEC. 3374 AND THE INCOME TAX STATUTE AND REVERSED WITH
RESPECT TO SECS. 3379 AND 3414.  AFFIRMED IN PART AND REVERSED IN
PART.    FN1  THE COURT WAS CONVENED PURSUANT TO SEC. 266 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 380. 

FN2  73 F.SUPP.  371(1947). 

FN3  THE APPEAL IS AUTHORIZED BY SEC. 266 OF THE JUDICIAL CODE, 28
U.S.C. SEC. 380. 

FN4  SEE JOHNSON AND LINDNER, SHRIMP INDUSTRY OF THE SOUTH ATLANTIC
AND GULF STATES (U.S. DEPT. OF COMMERCE, BUREAU OF FISHERIES
INVESTIGATIONAL REP. NO. 21, 1934); ANNUAL REP. OF S.C. STATE BOARD OF
FISHERIES (1946). 

FN5  AT LEAST THREE OF THE STATES (FLORIDA, GEORGIA, AND SOUTH
CAROLINA) BELONG TO THE ATLANTIC STATES MARINE FISHERIES COMMISSION,
ONE OF THE PRINCIPAL AIMS OF WHICH IS TO SECURE THE ENACTMENT OF
UNIFORM FISHERIES LAWS.  THE COMMISSION WAS ESTABLISHED PURSUANT TO AN
INTERSTATE COMPACT WHICH HAS BEEN RATIFIED BY AT LEAST THIRTEEN EASTERN
STATES.  ITS DUTIES, HOWEVER, ARE LARGELY CONSULTIVE AND ADVISORY, AND
TO DATE ITS EFFORTS HAVE PRODUCED LITTLE IN THE WAY OF CONCRETE RESULTS
INSOFAR AS THE SOUTH ATLANTIC SHRIMP FISHERY IS CONCERNED.  SEE 56
STAT. 267(1942); FLA. STAT. ANN. SEC. 374.43(SUPP.  1946); GA. CODE
ANN. SEC. 45-1001 ET SEQ. (SUPP. 1947); S.C. CODE ANN. (1944 SUPP.)
SEC. 1776-1; ANNUAL REP. OF THE S.C. STATE BOARD OF FISHERIES (1943);
ID. (1944); ID. (1945); ID. (1946). 

FN6  SEE FLA. STAT. ANN. SEC. 374.14(3)(SUPP.  1946), AS AMENDED BY
1947 GEN. LAWS OF FLA., ACT 163; GA. CODE ANN. SECS. 45-216, 45
217(1937); N.C. GEN. STAT. ANN. SEC. 113-238, AS AMENDED 1947 SESSION
LAWS OF N.C., C. 256; S.C. ACTS OF 1947, ACT 281, SECS. 1, 2, 5.  SEE
ALSO STATEMENTS BY THE S.C. STATE PLANNING BOARD THAT "IN REVISING
THESE (SHRIMP) LAWS  ...  NON-RESIDENT LICENSES (SHOULD BE) PLACED ON A
PAR OR RECIPROCAL BASIS WITH THOSE OF OTHER STATES IN THE SOUTH
ATLANTIC GROUP" AND "UNDER EXISTING REGULATIONS OUR FISHERMEN ARE
DISCRIMINATED AGAINST."  S.C. STATE PLANNING BOARD BULL.  NO. 14, P.
59(1944). 

FN7  S.C. CODE ANN. SEC. 3410(SUPP.  1944). 

FN8  S.C. CODE ANN. SEC. 3408. 

FN9  "THE WATERS AND BOTTOMS OF THE BAYS, RIVERS, CREEKS AND MARSHES
WITHIN THE STATE OR WITHIN THREE MILES OF ANY POINT ALONG LOW WATER
MARK ON THE COAST THEREOF, NOT HERETOFORE CONVEYED BY GRANT FROM THE
LEGISLATURE OR LAWFUL COMPACT WITH THE STATE, SHALL CONTINUE AND REMAIN
AS A COMMON FOR THE PEOPLE OF THE STATE FOR THE TAKING OF FISH  ...  " 

FN10  "THE FOLLOWING FISHERIES' TAX IS HEREBY IMPOSED UPON ALL FISH
OR FISHERIES PRODUCTS TAKEN OR CANNED, SHUCKED OR SHIPPED FOR MARKET,
TO-WIT  ...  ON EACH POUND OF GREEN SHRIMP, ONE-EIGHTH OF ONE CENT.
...  " 

FN11  PRIOR TO 1947 THERE WAS IMPOSED ON RESIDENT AND NON-RESIDENT
SHRIMPERS ALIKE A BOAT TAX OF $1.50 PER TON; A PERSONAL LICENSE TAX OF
$5; AND A TAX OF $5 FOR EACH SHRIMP TRAWL NET.  S.C. CODE ANN. SECS.
3375, 3376, 3379.  THESE TAXES, WITH THE POSSIBLE EXCEPTION OF SEC.
3375 IMPOSING A BOAT TAX GRADUATED BY TONNAGE, APPARENTLY REMAIN IN
EFFECT AND, IN ADDITION, SEC. 3379 WAS AMENDED AS FOLLOWS: 

"  ...  ALL OWNERS OF SHRIMP BOATS, WHO ARE RESIDENTS OF THE STATE OF
SOUTH CAROLINA SHALL TAKE OUT A LICENSE FOR EACH BOAT OWNED BY HIM, AND
SAID LICENSE SHALL BE TWENTY-FIVE ($25.00) DOLLARS PER YEAR, AND ALL
OWNERS OF SHRIMP BOATS WHO ARE NON-RESIDENTS OF THE STATE OF SOUTH
CAROLINA, AND WHO HAVE HAD ONE OR MORE BOATS LICENSED IN SOUTH CAROLINA
DURING EACH OF THE PAST THREE YEARS, SHALL TAKE OUT A LICENSE FOR EACH
BOAT OWNED BY HIM AND SAID LICENSE SHALL BE ONE HUNDRED AND FIFTY
($150.00) DOLLARS PER YEAR, AND ALL OWNERS OF SHRIMP BOATS WHO ARE NON
RESIDENTS OF THE STATE OF SOUTH CAROLINA AND WHO HAVE NOT HAD ONE OR
MORE BOATS LICENSED DURING EACH OF THE PAST THREE YEARS, SHALL TAKE OUT
A LICENSE FOR EACH BOAT OWNED BY HIM AND SAID LICENSE SHALL BE TWO
THOUSAND FIVE HUNDRED ($2,500.00) DOLLARS PER YEAR."  S.C. ACTS OF
1947, ACT 281, SEC. 1. 

THE APPELLANTS CANNOT QUALIFY FOR $150 LICENSES AND HENCE ARE SUBJECT
TO THE $2,500 PROVISION.  AS INTRODUCED IN THE LEGISLATURE AND PASSED
BY THE SOUTH CAROLINA HOUSE OF REPRESENTATIVES, THE BILL TO AMEND SEC.
3379 DID NOT CONTAIN THE $150 PROVISION.  THAT PROVISION WAS INSERTED
BY AMENDMENT IN THE SENATE AT THE INSTANCE OF A SENATOR FROM BEAUFORT
COUNTY, WHICH IS THE COASTAL COUNTY ADJOINING GEORGIA.  SEE HOUSE BILL
555; SENATE BILL 576; SENATE JOURNAL NO. 69, MAY 9, 1947, PP. 53-5;
CHARLESTON NEWS AND COURIER, MAY 17, 1947, P. 1, COLS.  2-3. 

OTHER PARTS OF THE SAME 1947 STATUTE, NOT ATTACKED IN THIS CASE,
LIMIT TO 100 THE NUMBER OF NON-RESIDENT BOATS WHICH MAY BE LICENSED AND
FORBID ALTOGETHER THE ISSUANCE OF LICENSES, EVEN ON PAYMENT OF THE
$2,500 FEE, TO RESIDENTS OF STATES WHICH DO NOT GRANT LICENSES TO FISH
IN THEIR WATERS TO SOUTH CAROLINA RESIDENTS AT THE SAME OR A LOWER
FEE.  ID. SECS. 2, 5. 

FN12  "THE BOARD OF FISHERIES, BEFORE ISSUING ANY NON-RESIDENT
LICENSES IN THE YEAR 1948 AND THEREAFTER, SHALL REQUIRE PROOF THAT THE
OWNER OF THE NON-RESIDENT BOAT HAS PAID ALL INCOME TAXES DUE TO THE
STATE OF SOUTH CAROLINA FOR PROFITS MADE FROM OPERATIONS IN SOUTH
CAROLINA DURING THE PRECEDING YEAR."  ID. SEC. 3. 

FN13  "ALL BOATS LICENSED BY THIS STATE TO TRAWL FOR SHRIMP IN THE
WATERS OF THE STATE OF SOUTH CAROLINA SHALL LAND OR DOCK AT SOME POINT
IN SOUTH CAROLINA, AND SHALL UNLOAD THEIR CATCH OF SHRIMP, AND PACK AND
PROPERLY STAMP THE SAME BEFORE SHIPPING OR TRANSPORTING IT TO ANOTHER
STATE OR THE WATERS THEREOF.  ...  "  THE STAMPING REFERS TO TAX
STAMPS. 

FN14  S.C. ACTS OF 1947, ACT 281, SEC. 4; S.C. CODE ANN. SECS. 3407,
3414. 

FN15  APPELLEES STRESS AMERICAN FEDERATION OF LABOR V. WATSON, 327
U.S. 582(1946).  WE THINK THE DOCTRINE OF THAT CASE APPLICABLE TO ONE
OF THE ARGUMENTS MADE AGAINST SEC. 3374, SUPRA NOTE 10.  SEE THE THIRD
DIVISION OF THIS OPINION, INFRA P. 394.  AS TO ALL THE OTHER STATUTES
EXCEPT THAT RELATING TO STATE INCOME TAXES, HOWEVER, WE AGREE WITH THE
DISTRICT COURT THAT THERE IS NEITHER NEED FOR INTERPRETATION OF THE
STATUTES NOR ANY OTHER SPECIAL CIRCUMSTANCE REQUIRING THE FEDERAL COURT
TO STAY ACTION PENDING PROCEEDINGS IN THE STATE COURTS. 

FN16  SEE NOTE 12 SUPRA. 

FN17  S.C. CODE ANN. SEC. 2469.  THIS SECTION PROVIDES THAT A
TAXPAYER MAY INSTITUTE SUIT TO RECOVER THE AMOUNTS PAID WITHIN THIRTY
DAYS OF THE PAYMENT UNDER PROTEST.  SEE ARGENT LUMBER CO. V. QUERY, 178
S.C. 1, 5, 182 S.E. 93, 94(1935). 

FN18  332 U.S. 19, 38(1947). 

FN19  APPELLANTS ALSO CONTEND THAT UNTIL 1924 SOUTH CAROLINA HAD
ITSELF LIMITED ITS BOUNDARIES BY THE LOW-WATER MARK AND HAD ASSERTED NO
POWER OVER THE MARITIME BELT.  BUT, AS THE DISTRICT COURT HELD, THE
STATUTE CITED BY APPELLANTS NEED NOT BE GIVEN THE EFFECT WHICH THEY
WOULD ATTRIBUTE TO IT, AND EVEN IF IT WERE SO CONSTRUED, IT DID NOT
IMPOSE A CONSTITUTIONAL LIMIT ON THE POWER OF FUTURE LEGISLATURES. 

FN20  SEE NOTE 10 SUPRA. 

FN21  SEE AMERICAN FEDERATION OF LABOR V. WATSON, 327 U.S. 582(1946);
CF. RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549(1947). 

FN22  SEE HOPE NATURAL GAS CO. V. HALL, 274 U.S. 284(1927); LACOSTE
V. DEPT. OF CONSERVATION, 263 U.S. 545(1924); OLIVER IRON CO. V. LORD,
262 U.S. 172(1923); HEISLER V. THOMAS COLLIERY CO., 260 U.S. 245(1922);
COE V. ERROL, 116 U.S. 517(1886). 

FN23  SEE NOTE 11 SUPRA. 

FN24  SEE PAUL V. VIRGINIA, 8 WALL.  168, 180-81(1868); TRAVIS V.
YALE & TOWNE MFG. CO., 252 U.S. 60, 78(1920). 

FN25  TRAVIS V. YALE & TOWNE MFG. CO., SUPRA NOTE 24, AT 82. 

FN26  WARD V. MARYLAND, 12 WALL.  418(1870); SEE ALSO CHALKER V.
BIRMINGHAM & N.W.R. CO., 249 U.S. 522(1919); SHAFFER V. CARTER, 252
U.S. 37, 52-53(1920). 

FN27  SEE TRAVIS V. YALE & TOWNE MFG. CO., 252 U.S. 60, 79(1920). 

FN28  THE PARTIES STIPULATED THAT IN 1946, THE YEAR BEFORE NON
RESIDENTS HAD TO PAY HIGHER FEES THAN RESIDENTS, 100 NON-RESIDENT BOATS
WERE LICENSED AND THAT IN 1947 ONLY 15 SUCH BOATS WERE LICENSED.  EVEN
THOSE 15 WERE PRESUMABLY OWNED BY PERSONS WHO HAD FISHED IN SOUTH
CAROLINA WATERS THE THREE PRECEDING YEARS AND WERE THUS ELIGIBLE FOR
$150 LICENSES, SINCE THE APPELLEES CONCEDED ON ORAL ARGUMENT HERE THAT
NO $2,500 LICENSES HAD BEEN TAKEN OUT.  SEE NOTE 11 SUPRA. 

FN29  SEE BLAKE V. MCCLUNG, 172 U.S. 239, 247(1898); CHALKER V.
BIRMINGHAM & N.W.R. CO., 249 U.S. 522(1919); TRAVIS V. YALE & TOWNE
MFG. CO., 252 U.S. 60, 79(1920). 

FN30  IT IS RELEVANT TO NOTE THAT THE STATUTE IMPOSES NO LIMITATION
ON THE NUMBER OF RESIDENT BOATS WHICH MAY BE LICENSED, AND IT WAS
STIPULATED THAT WHILE THE NUMBER OF NON-RESIDENT BOATS FELL FROM 100 TO
15 BETWEEN 1946 AND 1947, THE TOTAL NUMBER OF BOATS LICENSED INCREASED
DURING THAT TIME FROM 254 TO 271. 

THE REPORTS OF THE STATE BOARD OF FISHERIES FOR SEVERAL YEARS BACK,
WHILE EXPRESSING SOLICITUDE AS TO THE NEED FOR CONSERVATION MEASURES,
REVEAL EQUAL CONCERN WITH METHODS FOR INCREASING THE MARKET FOR SHRIMP
BY ADVERTISING, AIR SHIPMENTS, ETC. - AND CONTAIN FREQUENT REFERENCES
TO THE ECONOMIC IMPORTANCE OF THE SHRIMP INDUSTRY TO THE STATE.  THE
1945 REPORT, FOR EXAMPLE, SAID THAT "THE SHRIMP BUSINESS IN OUR STATE
IS QUITE AN INDUSTRY, IT EMPLOYS NUMBERS OF MEN AND BOAT CREWS SPEND
LARGE SUMS OF MONEY ON REPAIRS, GASOLINE, OIL AND FOOD BESIDES THE
MONEY THAT IS SPENT BY THE INDIVIDUALS PERSONALLY."  IN CONNECTION WITH
THE POSSIBILITY OF AIR SHIPMENTS TO LARGE CONSUMING CENTERS SUCH AS NEW
YORK, THE SAME REPORT SAID THAT AIR TRANSPORTATION "SHOULD INCREASE THE
CONSUMPTION OF SAME (I.E., SEAFOODS) IN LARGE QUANTITIES; IT WILL ALSO
CREATE A MUCH GREATER DEMAND FOR SHRIMP AND SEAFOODS ALL OVER THE
UNIVERSE, AND IT WILL PLACE THEM IN SECTIONS WHERE THEY ARE VERY SELDOM
CONSUMED WITH THE RESULT THAT MANY MORE PEOPLE WILL GET SOLD ON THE
IDEA OF EATING SAME."  AND THE 1946 REPORT'S SECTION ON SHRIMP
CONCLUDED WITH THE STATEMENT THAT "TO BE ABLE TO MAKE THIS REPORT IS
CERTAINLY A PLEASURE TO THE STATE BOARD OF FISHERIES AS WE ARE ABLE TO
SHOW THAT THE CATCH OF SHRIMP THIS SEASON WAS NEARLY TWICE AS LARGE AS
IN THE PREVIOUS YEAR." 

FN31  SEE FLA. STAT. ANN. SEC. 374.14(5)(SUPP.  1946); 1947 GEN. LAWS
OF FLA., ACT 654; GA. CODE ANN. SEC. 45-109(1937); JOHNSON AND LINDNER,
SHRIMP INDUSTRY OF THE SOUTH ATLANTIC AND GULF STATES (U.S. DEPT. OF
COMMERCE, BUREAU OF FISHERIES INVESTIGATIONAL REP. NO. 21, 1934) 62
63. 

FN32  SOUTH CAROLINA HAS ITSELF IMPOSED SUCH A GRADUATED TAX IN YEARS
PAST.  S.C. CODE ANN. SEC. 3375(1942).  SEE ALSO GA. CODE ANN. SEC. 45
210(1937); N.C. GEN. STAT. ANN. SEC. 113-165(SUPP.  1945). 

FN33  THE MOST EXTENDED EXPOSITION APPEARS IN THE MAJORITY OPINION IN
GEER V. CONNECTICUT, 161 U.S. 519(1896). 

FN34  APPELLEES RELY ALSO UPON PATSONE V. PENNSYLVANIA, 232 U.S.
138(1914), AND HAAVIK V. ALASKA PACKERS ASSN., 263 U.S. 510(1924).  THE
PATSONE CASE INVOLVED A 1909 PENNSYLVANIA STATUTE FORBIDDING RESIDENT
ALIENS TO KILL GAME OR TO POSSESS FIREARMS USEFUL FOR THAT PURPOSE.  ON
THE RECORD BEFORE IT, THE COURT CONCLUDED THAT IT COULD NOT SAY THAT
THE PENNSYLVANIA LEGISLATURE WAS NOT WARRANTED IN ASSUMING THAT
RESIDENT ALIENS WERE AT THAT TIME "THE PECULIAR SOURCE OF THE EVIL THAT
IT DESIRED TO PREVENT."  THE STATUTE WAS THEREFORE HELD NOT TO VIOLATE
THE FOURTEENTH AMENDMENT.  BUT THE THEORY OF THE CASE WAS THAT THERE
WAS A SUBSTANTIAL REASON FOR THE DISCRIMINATION BEYOND THE MERE FACT OF
ALIENAGE.  THE HAAVIK CASE INVOLVED THE VALIDITY, UNDER AN ACT OF
CONGRESS, OF AN ALASKAN STATUTE IMPOSING ON NON-RESIDENTS, BUT NOT
RESIDENTS, A $5 FISHING LICENSE FEE.  IN UPHOLDING THE STATUTE THE
COURT POINTED OUT THAT "WE ARE NOT HERE CONCERNED WITH TAXATION BY A
STATE."  AND IN CONSIDERING THE POWER OF CONGRESS TO AUTHORIZE SUCH A
TAX, IT WAS ADDED THAT THE FEE WAS A REASONABLE CONTRIBUTION TOWARD THE
PROTECTION WHICH THE LOCAL GOVERNMENT AFFORDED TO NON-RESIDENTS. 

FN35  MANCHESTER V. MASSACHUSETTS, 139 U.S. 240, 265(1891).  IN THAT
CASE APPELLANT, A CITIZEN OF RHODE ISLAND, WAS CONVICTED OF VIOLATING A
MASSACHUSETTS STATUTE WHICH REGULATED FISHING IN BUZZARDS BAY.  THE
COURT UPHELD MASSACHUSETTS' POWER TO ENACT THE REGULATION, BUT POINTED
OUT THAT THE STATUTE "MAKES NO DISCRIMINATION IN FAVOR OF CITIZENS OF
MASSACHUSETTS AND AGAINST CITIZENS OF OTHER STATES."  IBID. 

FN36  332 U.S. 19, 31. 

FN37  SEE, E.G., POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW, 197
202.  THE FICTION APPARENTLY GAINED CURRENCY PARTLY AS A RESULT OF
CONFUSION BETWEEN THE ROMAN TERM IMPERIUM, OR GOVERNMENTAL POWER TO
REGULATE, AND DOMINIUM, OR OWNERSHIP.  POWER OVER FISH AND GAME WAS, IN
ORIGIN, IMPERIUM.  IBID. 

FN38  SEE NOTE 13 SUPRA. 

FN39  278 U.S. 1, 13. 

FN40  SEE NOTE 30 SUPRA.  THE DISTRICT COURT THOUGHT THAT THE FOSTER
PACKING CO. AND JOHNSON CASES HAD BEEN RENDERED INAPPLICABLE TO THIS
CASE BY BAYSIDE FISH FLOUR CO. V. GENTRY, 297 U.S. 422(1936).  THE
CALIFORNIA STATUTE WHICH THE COURT UPHELD IN THAT CASE, HOWEVER, WAS OF
A FAR DIFFERENT TYPE THAN THE ONE WITH WHICH WE ARE NOW DEALING.  THE
STATUTE IN EFFECT LIMITED THE NUMBER OF FISH WHICH COULD BE REDUCED TO
FISH FLOUR AS APART FROM THOSE PROCESSED OR SOLD IN OTHER FORMS.  IN
REJECTING THE APPELLANT'S ARGUMENT THAT THE STATUTE UNCONSTITUTIONALLY
BURDENED INTERSTATE COMMERCE, THE COURT SAID THAT "IT IN NO WAY LIMITS
OR REGULATES  ...  THE MOVEMENT OF THE SARDINES FROM OUTSIDE INTO THE
STATE, OR THE MOVEMENT OF THE MANUFACTURED PRODUCT FROM THE STATE TO
THE OUTSIDE.  THE ACT REGULATES ONLY THE MANUFACTURE WITHIN THE STATE. 
ITS DIRECT OPERATION, INTENDED AND ACTUAL, IS WHOLLY LOCAL."  297 U.S.
422, 425-26. 

FN41  THE DISTRICT COURT ALSO SAID THAT THE REQUIREMENTS OF SEC. 3414
WERE A REASONABLE MEANS OF MAINTAINING THE GOOD REPUTATION OF PRODUCTS
ORIGINATING IN SOUTH CAROLINA.  BUT THE APPELLEES DO NOT PRETEND THAT
THE STATUTE RESULTS IN BETTER PRESERVATION OF THE SHRIMP IN HEALTHFUL
FORM.  MOREOVER, SINCE SHRIMP CAUGHT OFF THE SHORES OF SOUTH CAROLINA
ARE INDISTINGUISHABLE FROM THOSE TAKEN OFF THE SHORES OF NEIGHBORING
STATES, PURCHASERS WOULD HAVE NO REASON TO SUPPOSE THAT SHRIMP PACKED
IN GEORGIA, IF INFERIOR, WERE PRODUCTS OF SOUTH CAROLINA.    MR.
JUSTICE BLACK CONCURS IN THE JUDGMENT OF THE COURT AND ALL OF THE
OPINION EXCEPT PART FIFTH. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE JACKSON JOINS, CONCURRING. 

BARRING THE PORTION ENTITLED FOURTH, I JOIN THE COURT'S OPINION. 
WHILE I AGREE THAT SOUTH CAROLINA HAS EXCEEDED HER POWER TO CONTROL
FISHERIES WITHIN HER WATERS, I REST THE INVALIDITY OF HER ATTEMPT TO DO
SO ON THE COMMERCE CLAUSE.  THE COURT REACHES THIS RESULT BY WHAT I
DEEM TO BE A MISAPPLICATION OF THE PRIVILEGES-AND-IMMUNITIES CLAUSE OF
ART. IV, SEC. 2, OF THE CONSTITUTION. 

TO REGARD ANY LIMITATION UPON THE PRIVILEGES-AND-IMMUNITIES CLAUSE AS
"SOME UNEXPRESSED EXCEPTION" AND NOT GIVE ANY CLUE TO THE BASIS ON
WHICH SUCH AN "EXCEPTION" MAY BE IMPLIED IS TO LEAVE THE MATTER TOO
MUCH AT LARGE.  IT DEALS WITH THE CONSTITUTION AS THOUGH ITS VARIOUS
CLAUSES WERE DISCRETE AND NOT A COHERENT SCHEME FOR GOVERNMENT. 
SPECIFICALLY, THE PRIVILEGES-AND-IMMUNITIES CLAUSE, LIKE THE CONTRACT
CLAUSE, MUST BE PUT "IN ITS PROPER PERSPECTIVE IN OUR CONSTITUTIONAL
FRAMEWORK."  EAST NEW YORK SAVINGS BANK V. HAHN, 326 U.S. 230, 232. 

LIKE OTHER PROVISIONS OF THE CONSTITUTION, THE CLAUSE WHEREBY "THE
CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL PRIVILEGES AND
IMMUNITIES OF CITIZENS IN THE SEVERAL STATES" MUST BE READ IN
CONJUNCTION WITH THE TENTH AMENDMENT TO THE CONSTITUTION.  THIS CLAUSE
PRESUPPOSES THE CONTINUED RETENTION BY THE STATES OF POWERS THAT
HISTORICALLY BELONGED TO THE STATES, AND WERE NOT EXPLICITLY GIVEN TO
THE CENTRAL GOVERNMENT OR WITHDRAWN FROM THE STATES.  I THINK IT IS
FAIR TO SUMMARIZE THE DECISIONS WHICH HAVE APPLIED ART. IV, SEC. 2, BY
SAYING THAT THEY BAR A STATE FROM PENALIZING THE CITIZENS OF OTHER
STATES BY SUBJECTING THEM TO HEAVIER TAXATION MERELY BECAUSE THEY ARE
SUCH CITIZENS OR BY DISCRIMINATING AGAINST CITIZENS OF OTHER STATES IN
THE PURSUIT OF ORDINARY LIVELIHOODS IN COMPETITION WITH LOCAL
CITIZENS.  IT IS NOT CONCEIVABLE THAT THE FRAMERS OF THE CONSTITUTION
MEANT TO OBLITERATE ALL SPECIAL RELATIONS BETWEEN A STATE AND ITS
CITIZENS.  THIS CLAUSE DOES NOT TOUCH THE RIGHT OF A STATE TO CONSERVE
OR UTILIZE ITS RESOURCES ON BEHALF OF ITS OWN CITIZENS, PROVIDED IT
USES THESE RESOURCES WITHIN THE STATE AND DOES NOT ATTEMPT A CONTROL OF
THE RESOURCES AS PART OF A REGULATION OF COMMERCE BETWEEN THE STATES. 
A STATE MAY CARE FOR ITS OWN IN UTILIZING THE BOUNTIES OF NATURE WITHIN
HER BORDERS BECAUSE IT HAS TECHNICAL OWNERSHIP OF SUCH BOUNTIES OR,
WHEN OWNERSHIP IS IN NO ONE, BECAUSE THE STATE MAY FOR THE COMMON GOOD
EXERCISE ALL THE AUTHORITY THAT TECHNICAL OWNERSHIP ORDINARILY
CONFERS. 

WHEN THE CONSTITUTION WAS ADOPTED, SUCH, NO DOUBT, WAS THE COMMON
UNDERSTANDING REGARDING THE POWER OF STATES OVER THEIR FISHERIES, AND
IT IS THIS COMMON UNDERSTANDING THAT WAS REFLECTED IN MCCREADY V.
VIRGINIA, 94 U.S. 391.  THE MCCREADY CASE IS NOT AN ISOLATED DECISION
TO BE LOOKED AT ASKANCE.  IT IS THE SYMBOL OF ONE OF THE WEIGHTIEST
DOCTRINES IN OUR LAW.  IT EXPRESSED THE MOMENTUM OF LEGAL HISTORY THAT
PRECEDED IT, AND AROUND IT IN TURN HAS CLUSTERED A VOLUMINOUS BODY OF
RULINGS.  NOT ONLY HAS A HOST OF STATE CASES APPLIED THE MCCREADY
DOCTRINE AS TO THE POWER OF STATES TO CONTROL THEIR GAME AND FISHERIES
FOR THE BENEFIT OF THEIR OWN CITIZENS, BUT IN OUR OWN DAY THIS COURT
FORMULATED THE AMPLITUDE OF THE MCCREADY DOCTRINE BY REFERRING TO "THE
REGULATION OR DISTRIBUTION OF THE PUBLIC DOMAIN, OR OF THE COMMON
PROPERTY OR RESOURCES OF THE PEOPLE OF THE STATE, THE ENJOYMENT OF
WHICH MAY BE LIMITED TO ITS CITIZENS AS AGAINST BOTH ALIENS AND THE
CITIZENS OF OTHER STATES."  TRUAX V. RAICH, 239 U.S. 33, 39-40. 

BUT A STATE CANNOT PROJECT ITS POWERS OVER ITS OWN RESOURCES BY
SEEKING TO CONTROL THE CHANNELS OF COMMERCE AMONG THE STATES.  IT IS
ONE THING TO SAY THAT A FOOD SUPPLY THAT MAY BE REDUCED TO CONTROL BY A
STATE FOR FEEDING ITS OWN PEOPLE SHOULD BE ONLY LOCALLY CONSUMED.  THE
STATE HAS THAT POWER AND THE PRIVILEGES-AND-IMMUNITIES CLAUSE IS NO
RESTRICTION UPON ITS EXERCISE.  IT IS A WHOLLY DIFFERENT THING FOR THE
STATE TO PROVIDE THAT ONLY ITS CITIZENS SHALL BE ENGAGED IN COMMERCE
AMONG THE STATES, EVEN THOUGH BASED ON A LOCALLY AVAILABLE FOOD
SUPPLY.  THAT IS NOT THE EXERCISE OF THE BASIC RIGHT OF A STATE TO FEED
AND MAINTAIN AND GIVE ENJOYMENT TO ITS OWN PEOPLE.  WHEN A STATE
REGULATES THE SENDING OF PRODUCTS ACROSS STATE LINES WE HAVE COMMERCE
AMONG THE STATES AS TO WHICH STATE INTERVENTION IS SUBORDINATE TO THE
COMMERCE CLAUSE.  THAT IS THE NUB OF THE DECISION IN FOSTER-FOUNTAIN
PACKING CO. V. HAYDEL, 278 U.S. 1.  SOUTH CAROLINA HAS ATTEMPTED SUCH
REGULATION OF COMMERCE IN SHRIMP AMONG THE STATES.  IN DOING SO SHE HAS
EXCEEDED THE RESTRICTIONS OF THE COMMERCE CLAUSE. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I AGREE WITH THE RESULT AND THE COURT'S OPINION, SUBJECT TO ONE
INTERPRETATION OR QUALIFICATION OF THE OPINION'S FIFTH PART. 

THE REQUIREMENT THAT OWNERS OF BOATS FISHING IN THE MARITIME BELT
DOCK AT A SOUTH CAROLINA PORT, UNLOAD, PACK, AND STAMP THEIR CATCH (FOR
TAX PURPOSES), BEFORE "SHIPPING OR TRANSPORTING IT TO ANOTHER STATE,"
IS NOT MERELY A REGULATION OF COMMERCE BURDENING IT IN THE SENSE OF
MATERIALLY INCREASING THE SHIPPER'S COSTS.  MANY VALID REGULATIONS OF
COMMERCE DO THIS.  THE REGULATION IN QUESTION GOES FARTHER.  IT IS
AIMED IN TERMS DIRECTLY AT INTERSTATE COMMERCE ALONE, AND THUS WOULD
SEEM TO BE DISCRIMINATORY IN INTENT AND EFFECT UPON THAT COMMERCE. 
MOREOVER, IN MY OPINION, IT IS OF SUCH A CHARACTER THAT, IF APPLIED,
FOR ALL PRACTICAL PURPOSES IT WOULD BLOCK THE COMMERCE. 

SINCE IT WAS EXACTLY THAT SORT OF STATE REGULATION THE COMMERCE
CLAUSE WAS DESIGNED TO STRIKE DOWN, I AGREE THAT THIS ONE CANNOT
STAND.  THE SAME CONSIDERATIONS I ALSO THINK WOULD BE APPLICABLE TO
NULLIFY THE LICENSE FEES LEVIED AGAINST NONRESIDENTS, SINCE UPON THE
RECORD THEIR TRANSPORTATION OF CATCHES WOULD SEEM TO BE EXCLUSIVELY IN
INTERSTATE COMMERCE, OR PRACTICALLY SO.
..END :




TAKAHASHI V. FISH COMM'N, 334 U.S. 410 


NO. 533.  ARGUED APRIL 21-22, 1948.  - DECIDED JUNE 7, 1948.  - 30
CAL.2D 719, 185 P.2D 805, REVERSED. 


1.  A CALIFORNIA STATUTE BARRING ISSUANCE OF COMMERCIAL FISHING
LICENSES TO PERSONS "INELIGIBLE TO CITIZENSHIP," WHICH CLASSIFICATION
INCLUDED RESIDENT ALIEN JAPANESE AND PRECLUDED SUCH A ONE FROM EARNING
HIS LIVING AS A COMMERCIAL FISHERMAN IN THE OCEAN WATERS OFF THE COAST
OF THE STATE, HELD INVALID UNDER THE FEDERAL CONSTITUTION AND LAWS. 
PP. 412-422. 

2.  FOR PURPOSES OF DECISION BY THIS COURT, IT MAY BE ASSUMED THAT
THE OBJECT OF THE STATUTE WAS TO CONSERVE FISH IN THE COASTAL WATERS OF
THE STATE, OR TO PROTECT CITIZENS OF THE STATE ENGAGED IN COMMERCIAL
FISHING FROM THE COMPETITION OF JAPANESE ALIENS, OR BOTH.  P. 418. 

3.  THAT THE UNITED STATES REGULATES IMMIGRATION AND NATURALIZATION
IN PART ON THE BASIS OF RACE AND COLOR CLASSIFICATIONS DOES NOT
AUTHORIZE ADOPTION BY A STATE OF SUCH CLASSIFICATIONS TO PREVENT
LAWFULLY ADMITTED ALIENS WITHIN ITS BORDERS FROM EARNING A LIVELIHOOD
BY MEANS OPEN TO ALL OTHER INHABITANTS.  PP. 418-420. 

4.  THE FOURTEENTH AMENDMENT AND FEDERAL LAWS, 8 U.S.C. SEC. 41,
EMBODY A GENERAL POLICY THAT ALL PERSONS LAWFULLY IN THIS COUNTRY SHALL
ABIDE "IN ANY STATE" ON AN EQUALITY OF LEGAL PRIVILEGES WITH ALL
CITIZENS UNDER NON-DISCRIMINATORY LAWS.  PP. 419-420. 

5.  WHATEVER MAY BE THE INTEREST OF THE STATE OR ITS CITIZENS IN THE
FISH IN THE 3-MILE BELT OFFSHORE, THAT INTEREST DOES NOT JUSTIFY THE
STATE IN EXCLUDING ANY OR ALL ALIENS WHO ARE LAWFUL RESIDENTS OF THE
STATE FROM MAKING A LIVING BY FISHING IN THE OCEAN OFF ITS SHORES WHILE
PERMITTING ALL OTHER PERSONS TO DO SO.  PP. 420-421. 

6.  ASSUMING THEIR CONTINUED VALIDITY, CASES SUSTAINING STATE LAWS
BARRING LAND OWNERSHIP BY ALIENS INELIGIBLE TO CITIZENSHIP, WHICH
RESTED ON GROUNDS PECULIAR TO REAL PROPERTY, CAN NOT BE EXTENDED TO
CONTROL THE DECISION IN THIS CASE.  P. 422. 

TAKAHASHI V. FISH AND GAME COMMISSION ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

PETITIONER BROUGHT AN ACTION IN A STATE COURT FOR MANDAMUS TO COMPEL
ISSUANCE TO HIM OF A COMMERCIAL FISHING LICENSE.  A JUDGMENT GRANTING
THE WRIT WAS REVERSED BY THE STATE SUPREME COURT, 30 CAL.2D 719, 185
P.2D 805.  THIS COURT GRANTED CERTIORARI.  333 U.S. 853.  REVERSED, P.
422. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, TORAO TAKAHASHI, BORN IN JAPAN, CAME TO THIS COUNTRY
AND BECAME A RESIDENT OF CALIFORNIA IN 1907.  FEDERAL LAWS, BASED ON
DISTINCTIONS OF "COLOR AND RACE," TOYOTA V. UNITED STATES, 268 U.S.
402, 411-412, HAVE PERMITTED JAPANESE AND CERTAIN OTHER NON-WHITE
RACIAL GROUPS TO ENTER AND RESIDE IN THE COUNTRY, BUT HAVE MADE THEM
INELIGIBLE FOR UNITED STATES CITIZENSHIP N1.  THE QUESTION PRESENTED IS
WHETHER CALIFORNIA CAN, CONSISTENTLY WITH THE FEDERAL CONSTITUTION AND
LAWS PASSED PURSUANT TO IT, USE THIS FEDERALLY CREATED RACIAL
INELIGIBILITY FOR CITIZENSHIP AS A BASIS FOR BARRING TAKAHASHI FROM
EARNING HIS LIVING AS A COMMERCIAL FISHERMAN IN THE OCEAN WATERS OFF
THE COAST OF CALIFORNIA. 

PRIOR TO 1943 CALIFORNIA ISSUED COMMERCIAL FISHING LICENSES TO ALL
QUALIFIED PERSONS WITHOUT REGARD TO ALIENAGE OR INELIGIBILITY TO
CITIZENSHIP.  FROM 1915 TO 1942 TAKAHASHI, UNDER ANNUAL COMMERCIAL
FISHING LICENSES ISSUED BY THE STATE, FISHED IN OCEAN WATERS OFF THE
CALIFORNIA COAST, APPARENTLY BOTH WITHIN AND WITHOUT THE THREE-MILE
COASTAL BELT, AND BROUGHT HIS FRESH FISH ASHORE FOR SALE.  IN 1942,
WHILE THIS COUNTRY WAS AT WAR WITH JAPAN, TAKAHASHI AND OTHER
CALIFORNIA RESIDENTS OF JAPANESE ANCESTRY WERE EVACUATED FROM THE STATE
UNDER MILITARY ORDERS.  SEE KOREMATSU V. UNITED STATES, 323 U.S. 214. 
IN 1943, DURING THE PERIOD OF WAR AND EVACUATION, AN AMENDMENT TO THE
CALIFORNIA FISH AND GAME CODE WAS ADOPTED PROHIBITING ISSUANCE OF A
LICENSE TO ANY "ALIEN JAPANESE."  CAL. STATS. 1943, CH. 1100.  IN 1945,
THE STATE CODE WAS AGAIN AMENDED BY STRIKING THE 1943 PROVISION FOR
FEAR THAT IT MIGHT BE "DECLARED UNCONSTITUTIONAL" BECAUSE DIRECTED ONLY
"AGAINST ALIEN JAPANESE"; FN2  THE NEW AMENDMENT BANNED ISSUANCE OF
LICENSES TO ANY "PERSON INELIGIBLE TO CITIZENSHIP," WHICH
CLASSIFICATION INCLUDED JAPANESE.  CAL. STATS. 1945, CH. 181.  FN3
BECAUSE OF THIS STATE PROVISION BARRING ISSUANCE OF COMMERCIAL FISHING
LICENSES TO PERSONS INELIGIBLE FOR CITIZENSHIP UNDER FEDERAL LAW,
TAKAHASHI, WHO MET ALL OTHER STATE REQUIREMENTS, WAS DENIED A LICENSE
BY THE CALIFORNIA FISH AND GAME COMMISSION UPON HIS RETURN TO
CALIFORNIA IN 1945. 

TAKAHASHI BROUGHT THIS ACTION FOR MANDAMUS IN THE SUPERIOR COURT OF
LOS ANGELES COUNTY, CALIFORNIA, TO COMPEL THE COMMISSION TO ISSUE A
LICENSE TO HIM.  THAT COURT GRANTED THE PETITION FOR MANDAMUS.  IT HELD
THAT LAWFUL ALIEN INHABITANTS OF CALIFORNIA, DESPITE THEIR
INELIGIBILITY TO CITIZENSHIP, WERE ENTITLED TO ENGAGE IN THE VOCATION
OF COMMERCIAL FISHING ON THE HIGH SEAS BEYOND THE THREE-MILE BELT ON
THE SAME TERMS AS OTHER LAWFUL STATE INHABITANTS, AND THAT THE
CALIFORNIA CODE PROVISION DENYING THEM THIS RIGHT VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THE STATE SUPREME
COURT, THREE JUDGES DISSENTING, REVERSED, HOLDING THAT CALIFORNIA HAD A
PROPRIETARY INTEREST IN FISH IN THE OCEAN WATERS WITHIN THREE MILES OF
THE SHORE, AND THAT THIS INTEREST JUSTIFIED THE STATE IN BARRING ALL
ALIENS IN GENERAL AND ALIENS INELIGIBLE TO CITIZENSHIP IN PARTICULAR
FROM CATCHING FISH WITHIN OR WITHOUT THE THREE-MILE COASTAL BELT AND
BRINGING THEM TO CALIFORNIA FOR COMMERCIAL PURPOSES.  30 CAL.2D 719,
185 P.2D 805.  FN4  TO REVIEW THIS QUESTION OF IMPORTANCE IN THE FIELDS
OF FEDERAL-STATE RELATIONSHIPS AND OF CONSTITUTIONALLY PROTECTED
INDIVIDUAL EQUALITY AND LIBERTY, WE GRANTED CERTIORARI. 

WE MAY WELL BEGIN OUR CONSIDERATION OF THE PRINCIPLES TO BE APPLIED
IN THIS CASE BY A SUMMARY OF THIS COURT'S HOLDING IN TRUAX V. RAICH,
239 U.S. 33, NOT DEEMED CONTROLLING BY THE MAJORITY OF THE CALIFORNIA
SUPREME COURT, BUT REGARDED BY THE DISSENTERS AS REQUIRING THE
INVALIDATION OF THE CALIFORNIA LAW.  THAT CASE INVOLVED AN ATTACK UPON
AN ARIZONA LAW WHICH REQUIRED ALL ARIZONA EMPLOYERS OF MORE THAN FIVE
WORKERS TO HIRE NOT LESS THAN EIGHTY (80) PER CENT QUALIFIED ELECTORS
OR NATIVE-BORN CITIZENS OF THE UNITED STATES.  RAICH, AN ALIEN WHO
WORKED AS A COOK IN A RESTAURANT WHICH HAD MORE THAN FIVE EMPLOYEES,
WAS ABOUT TO LOSE HIS JOB SOLELY BECAUSE OF THE STATE LAW'S COERCIVE
EFFECT ON THE RESTAURANT OWNER.  THIS COURT, IN UPHOLDING RAICH'S
CONTENTION THAT THE ARIZONA LAW WAS INVALID, DECLARED THAT RAICH,
HAVING BEEN LAWFULLY ADMITTED INTO THE COUNTRY UNDER FEDERAL LAW, HAD A
FEDERAL PRIVILEGE TO ENTER AND ABIDE IN "ANY STATE IN THE UNION" AND
THEREAFTER UNDER THE FOURTEENTH AMENDMENT TO ENJOY THE EQUAL PROTECTION
OF THE LAWS OF THE STATE IN WHICH HE ABIDED; THAT THIS PRIVILEGE TO
ENTER IN AND ABIDE IN ANY STATE CARRIED WITH IT THE "RIGHT TO WORK FOR
A LIVING IN THE COMMON OCCUPATIONS OF THE COMMUNITY," A DENIAL OF WHICH
RIGHT WOULD MAKE OF THE AMENDMENT "A BARREN FORM OF WORDS."  IN ANSWER
TO A CONTENTION THAT ARIZONA'S RESTRICTION UPON THE EMPLOYMENT OF
ALIENS WAS "REASONABLE" AND THEREFORE PERMISSIBLE, THIS COURT
DECLARED: 

"IT MUST ALSO BE SAID THAT REASONABLE CLASSIFICATION IMPLIES ACTION
CONSISTENT WITH THE LEGITIMATE INTERESTS OF THE STATE, AND IT WILL NOT
BE DISPUTED THAT THESE CANNOT BE SO BROADLY CONCEIVED AS TO BRING THEM
INTO HOSTILITY TO EXCLUSIVE FEDERAL POWER.  THE AUTHORITY TO CONTROL
IMMIGRATION - TO ADMIT OR EXCLUDE ALIENS - IS VESTED SOLELY IN THE
FEDERAL GOVERNMENT.  FONG YUE TING V. UNITED STATES, 149 U.S. 698,
713.  THE ASSERTION OF AN AUTHORITY TO DENY TO ALIENS THE OPPORTUNITY
OF EARNING A LIVELIHOOD WHEN LAWFULLY ADMITTED TO THE STATE WOULD BE
TANTAMOUNT TO THE ASSERTION OF THE RIGHT TO DENY THEM ENTRANCE AND
ABODE, FOR IN ORDINARY CASES THEY CANNOT LIVE WHERE THEY CANNOT WORK. 
AND, IF SUCH A POLICY WERE PERMISSIBLE, THE PRACTICAL RESULT WOULD BE
THAT THOSE LAWFULLY ADMITTED TO THE COUNTRY UNDER THE AUTHORITY OF THE
ACTS OF CONGRESS, INSTEAD OF ENJOYING IN A SUBSTANTIAL SENSE AND IN
THEIR FULL SCOPE THE PRIVILEGES CONFERRED BY THE ADMISSION, WOULD BE
SEGREGATED IN SUCH OF THE STATES AS CHOSE TO OFFER HOSPITALITY."  TRUAX
V. RAICH, SUPRA AT 42. 

HAD THE TRUAX DECISION SAID NOTHING FURTHER THAN WHAT IS QUOTED
ABOVE, ITS REASONING, IF FOLLOWED, WOULD SEEM TO REQUIRE INVALIDATION
OF THIS CALIFORNIA CODE PROVISION BARRING ALIENS FROM THE OCCUPATION OF
FISHING AS INCONSISTENT WITH FEDERAL LAW, WHICH IS CONSTITUTIONALLY
DECLARED TO BE "THE SUPREME LAW OF THE LAND."  HOWEVER, THE COURT THERE
WENT ON TO NOTE THAT IT HAD ON OCCASION SUSTAINED STATE LEGISLATION
THAT DID NOT APPLY ALIKE TO CITIZENS AND NON-CITIZENS, THE GROUND FOR
THE DISTINCTION BEING THAT SUCH LAWS WERE NECESSARY TO PROTECT SPECIAL
INTERESTS EITHER OF THE STATE OR OF ITS CITIZENS AS SUCH.  THE TRUAX
OPINION POINTED OUT THAT THE ARIZONA LAW, AIMED AS IT WAS AGAINST
EMPLOYMENT OF ALIENS IN ALL VOCATIONS, FAILED TO SHOW A "SPECIAL PUBLIC
INTEREST WITH RESPECT TO ANY PARTICULAR BUSINESS  ...  THAT COULD
POSSIBLY BE DEEMED TO SUPPORT THE ENACTMENT."  THE COURT NOTED THAT IT
HAD PREVIOUSLY UPHELD VARIOUS STATE LAWS WHICH RESTRICTED THE PRIVILEGE
OF PLANTING OYSTERS IN THE TIDEWATER RIVERS OF A STATE TO CITIZENS OF
THAT STATE, AND WHICH DENIED TO ALIENS WITHIN A STATE THE PRIVILEGE OF
POSSESSING A RIFLE AND OF SHOOTING GAME WITHIN THAT STATE; IT ALSO
REFERRED TO DECISIONS RECOGNIZING A STATE'S BROAD POWERS, IN THE
ABSENCE OF OVERRIDING TREATIES, TO RESTRICT THE DEVOLUTION OF REAL
PROPERTY TO NON-ALIENS.  FN5 

CALIFORNIA NOW URGES, AND THE STATE SUPREME COURT HELD, THAT THE
CALIFORNIA FISHING PROVISION HERE CHALLENGED FALLS WITHIN THE RATIONALE
OF THE "SPECIAL PUBLIC INTEREST" CASES DISTINGUISHED IN THE TRUAX
OPINION, AND THUS THAT THE STATE'S BAN UPON COMMERCIAL FISHING BY
ALIENS INELIGIBLE TO CITIZENSHIP IS VALID.  THE CONTENTION IS THIS:
CALIFORNIA OWNS THE FISH WITHIN THREE MILES OF ITS COAST AS A TRUSTEE
FOR ALL CALIFORNIA CITIZENS AS DISTINGUISHED FROM ITS NON-CITIZEN
INHABITANTS; AS SUCH TRUSTEE-OWNER, IT HAS COMPLETE POWER TO BAR ANY OR
ALL ALIENS FROM FISHING IN THE THREE-MILE BELT AS A MEANS OF CONSERVING
THE SUPPLY OF FISH; SINCE MIGRATORY FISH CAUGHT WHILE SWIMMING IN THE
THREE-MILE BELT ARE INDISTINGUISHABLE FROM THOSE CAUGHT WHILE SWIMMING
IN THE ADJACENT HIGH SEAS, THE STATE, IN ORDER TO ENFORCE ITS THREE
MILE CONTROL, CAN ALSO REGULATE THE CATCHING AND DELIVERY TO ITS COAST
OF FISH CAUGHT BEYOND THE THREE-MILE BELT UNDER THIS COURT'S DECISION
IN BAYSIDE FISH CO. V. GENTRY, 297 U.S. 422.  ITS LAW DENYING FISHING
LICENSES TO ALIENS INELIGIBLE FOR CITIZENSHIP, SO THE STATE'S
CONTENTION GOES, TENDS TO REDUCE THE NUMBER OF COMMERCIAL FISHERMEN AND
THEREFORE IS A PROPER FISH CONSERVATION MEASURE; IN THE EXERCISE OF ITS
POWER TO DECIDE WHAT GROUPS WILL BE DENIED LICENSES, THE STATE HAS A
RIGHT, IF NOT A DUTY, TO BAR FIRST OF ALL ALIENS, WHO HAVE NO COMMUNITY
INTEREST IN THE FISH OWNED BY THE STATE.  FINALLY, THE LEGISLATURE'S
DENIAL OF LICENSES TO THOSE ALIENS WHO ARE "INELIGIBLE TO CITIZENSHIP"
IS DEFENDED AS A REASONABLE CLASSIFICATION, ON THE GROUND THAT
CALIFORNIA HAS SIMPLY FOLLOWED THE FEDERAL GOVERNMENT'S LEAD IN
ADOPTING THAT CLASSIFICATION FROM THE NATURALIZATION LAWS. 

FIRST.  THE STATE'S CONTENTION THAT ITS LAW WAS PASSED SOLELY AS A
FISH CONSERVATION MEASURE IS VIGOROUSLY DENIED.  THE PETITIONER ARGUES
THAT IT WAS THE OUTGROWTH OF RACIAL ANTAGONISM DIRECTED SOLELY AGAINST
THE JAPANESE, AND THAT FOR THIS REASON ALONE IT CANNOT STAND.  SEE
KOREMATSU V. UNITED STATES, SUPRA AT 216; KOTCH V. BOARD OF RIVER PILOT
COMM'RS, 330 U.S. 552, 556; YICK WO V. HOPKINS, 118 U.S. 356; IN RE AH
CHONG, 2 F. 733, 737.  WE FIND IT UNNECESSARY TO RESOLVE THIS
CONTROVERSY CONCERNING THE MOTIVES THAT PROMPTED ENACTMENT OF THE
LEGISLATION.  ACCORDINGLY, FOR PURPOSES OF OUR DECISION WE MAY ASSUME
THAT THE CODE PROVISION WAS PASSED TO CONSERVE FISH IN THE CALIFORNIA
COASTAL WATERS, OR TO PROTECT CALIFORNIA CITIZENS ENGAGED IN COMMERCIAL
FISHING FROM COMPETITION BY JAPANESE ALIENS, OR FOR BOTH REASONS. 

SECOND.  IT DOES NOT FOLLOW, AS CALIFORNIA SEEMS TO ARGUE, THAT
BECAUSE THE UNITED STATES REGULATES IMMIGRATION AND NATURALIZATION IN
PART ON THE BASIS OF RACE AND COLOR CLASSIFICATIONS, A STATE CAN ADOPT
ONE OR MORE OF THE SAME CLASSIFICATIONS TO PREVENT LAWFULLY ADMITTED
ALIENS WITHIN ITS BORDERS FROM EARNING A LIVING IN THE SAME WAY THAT
OTHER STATE INHABITANTS EARN THEIR LIVING.  THE FEDERAL GOVERNMENT HAS
BROAD CONSTITUTIONAL POWERS IN DETERMINING WHAT ALIENS SHALL BE
ADMITTED TO THE UNITED STATES, THE PERIOD THEY MAY REMAIN, REGULATION
OF THEIR CONDUCT BEFORE NATURALIZATION, AND THE TERMS AND CONDITIONS OF
THEIR NATURALIZATION.  SEE HINES V. DAVIDOWITZ, 312 U.S. 52, 66.  UNDER
THE CONSTITUTION THE STATES ARE GRANTED NO SUCH POWERS; THEY CAN
NEITHER ADD TO NOR TAKE FROM THE CONDITIONS LAWFULLY IMPOSED BY
CONGRESS UPON ADMISSION, NATURALIZATION AND RESIDENCE OF ALIENS IN THE
UNITED STATES OR THE SEVERAL STATES.  STATE LAWS WHICH IMPOSE
DISCRIMINATORY BURDENS UPON THE ENTRANCE OR RESIDENCE OF ALIENS
LAWFULLY WITHIN THE UNITED STATES CONFLICT WITH THIS CONSTITUTIONALLY
DERIVED FEDERAL POWER TO REGULATE IMMIGRATION, AND HAVE ACCORDINGLY
BEEN HELD INVALID.  FN6  MOREOVER, CONGRESS, IN THE ENACTMENT OF A
COMPREHENSIVE LEGISLATIVE PLAN FOR THE NATION-WIDE CONTROL AND
REGULATION OF IMMIGRATION AND NATURALIZATION, HAS BROADLY PROVIDED: 

"ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES SHALL HAVE
THE SAME RIGHT IN EVERY STATE AND TERRITORY TO MAKE AND ENFORCE
CONTRACTS, TO SUE, BE PARTIES, GIVE EVIDENCE, AND TO THE FULL AND EQUAL
BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE SECURITY OF PERSONS AND
PROPERTY AS IS ENJOYED BY WHITE CITIZENS, AND SHALL BE SUBJECT TO LIKE
PUNISHMENT, PAINS, PENALTIES, TAXES, LICENSES, AND EXACTIONS OF EVERY
KIND, AND TO NO OTHER."  16 STAT. 140, 144, 8 U.S.C. SEC. 41. 

THE PROTECTION OF THIS SECTION HAS BEEN HELD TO EXTEND TO ALIENS AS
WELL AS TO CITIZENS.  FN7 CONSEQUENTLY THE SECTION AND THE FOURTEENTH
AMENDMENT ON WHICH IT RESTS IN PART PROTECT "ALL PERSONS" AGAINST STATE
LEGISLATION BEARING UNEQUALLY UPON THEM EITHER BECAUSE OF ALIENAGE OR
COLOR.  SEE HURD V. HODGE, 334 U.S. 24.  THE FOURTEENTH AMENDMENT AND
THE LAWS ADOPTED UNDER ITS AUTHORITY THUS EMBODY A GENERAL POLICY THAT
ALL PERSONS LAWFULLY IN THIS COUNTRY SHALL ABIDE "IN ANY STATE" ON AN
EQUALITY OF LEGAL PRIVILEGES WITH ALL CITIZENS UNDER NON-DISCRIMINATORY
LAWS. 

ALL OF THE FOREGOING EMPHASIZES THE TENUOUSNESS OF THE STATE'S CLAIM
THAT IT HAS POWER TO SINGLE OUT AND BAN ITS LAWFUL ALIEN INHABITANTS,
AND PARTICULARLY CERTAIN RACIAL AND COLOR GROUPS WITHIN THIS CLASS OF
INHABITANTS, FROM FOLLOWING A VOCATION SIMPLY BECAUSE CONGRESS HAS PUT
SOME SUCH GROUPS IN SPECIAL CLASSIFICATIONS IN EXERCISE OF ITS BROAD
AND WHOLLY DISTINGUISHABLE POWERS OVER IMMIGRATION AND NATURALIZATION. 
THE STATE'S LAW HERE CANNOT BE SUPPORTED IN THE EMPLOYMENT OF THIS
LEGISLATIVE AUTHORITY BECAUSE OF POLICIES ADOPTED BY CONGRESS IN THE
EXERCISE OF ITS POWER TO TREAT SEPARATELY AND DIFFERENTLY WITH ALIENS
FROM COUNTRIES COMPOSED OF PEOPLES OF MANY DIVERSE CULTURES, RACES, AND
COLORS.  FOR THESE REASONS THE POWER OF A STATE TO APPLY ITS LAWS
EXCLUSIVELY TO ITS ALIEN INHABITANTS AS A CLASS IS CONFINED WITHIN
NARROW LIMITS.    THIRD.  WE ARE UNABLE TO FIND THAT THE "SPECIAL
PUBLIC INTEREST" ON WHICH CALIFORNIA RELIES PROVIDES SUPPORT FOR THIS
STATE BAN ON TAKAHASHI'S COMMERCIAL FISHING.  AS BEFORE POINTED OUT,
CALIFORNIA'S CLAIM OF "SPECIAL PUBLIC INTEREST" IS THAT ITS CITIZENS
ARE THE COLLECTIVE OWNERS OF FISH SWIMMING IN THE THREE-MILE BELT.  IT
IS TRUE THAT THIS COURT DID LONG AGO SAY THAT THE CITIZENS OF A STATE
COLLECTIVELY OWN "THE TIDE-WATERS  ...  AND THE FISH IN THEM, SO FAR AS
THEY ARE CAPABLE OF OWNERSHIP WHILE RUNNING."  MCCREADY V. VIRGINIA, 94
U.S. 391, 394.  CF. UNITED STATES V. CALIFORNIA, 332 U.S. 19, 38;
TOOMER V. WITSELL, ANTE, P. 385.  THE MCCREADY CASE UPHELD A VIRGINIA
LAW WHICH PROHIBITED CITIZENS OF OTHER STATES FROM PLANTING OYSTERS IN
A VIRGINIA TIDEWATER RIVER.  THOUGH THE MCCREADY CASE HAS BEEN OFTEN
DISTINGUISHED, ITS RATIONALE HAS BEEN RELIED ON IN OTHER CASES,
INCLUDING GEER V. CONNECTICUT, 161 U.S. 519.  THAT DECISION, WHERE ONLY
THE COMMERCE CLAUSE WAS INVOLVED, SUSTAINED A STATE LAW THAT, IN ORDER
TO RESTRICT THE USE OF GAME TO THE PEOPLE OF THE STATE, PROHIBITED THE
OUT-OF-STATE TRANSPORTATION OF GAME KILLED WITHIN THE STATE.  ON THE
OTHER HAND, WHERE LOUISIANA LAWS DECLARED THAT THE STATE OWNED ALL
SHRIMP WITHIN THE WATERS OF THE STATE, BUT PERMITTED ULTIMATE SALE AND
SHIPMENT OF SHRIMP FOR CONSUMPTION OUTSIDE THAT STATE'S BOUNDARIES,
LOUISIANA WAS DENIED POWER UNDER THE COMMERCE CLAUSE TO REQUIRE THE
LOCAL PROCESSING OF SHRIMP TAKEN FROM LOUISIANA MARSHES AS A
PREREQUISITE TO OUT-OF-STATE TRANSPORTATION.  FOSTER PACKING CO. V.
HAYDEL, 278 U.S. 1.  IN THE ABSENCE OF OVERRIDING FEDERAL TREATIES,
THIS COURT SUSTAINED A STATE LAW BARRING ALIENS FROM HUNTING WILD GAME
IN THE INTEREST OF CONSERVING GAME FOR CITIZENS OF THE STATE AGAINST
DUE PROCESS AND EQUAL PROTECTION CHALLENGES.  PATSONE V. PENNSYLVANIA,
232 U.S. 138.  LATER, HOWEVER, THE FEDERAL MIGRATORY BIRD TREATY ACT OF
1918, 40 STAT. 755, WAS SUSTAINED AS WITHIN FEDERAL POWER DESPITE THE
CLAIM OF MISSOURI OF OWNERSHIP OF BIRDS WITHIN ITS BOUNDARIES BASED ON
PRIOR STATEMENTS AS TO STATE OWNERSHIP OF GAME AND FISH IN THE GEER
CASE.  MISSOURI V. HOLLAND, 252 U.S. 416.  THE COURT WAS OF OPINION
THAT "TO PUT THE CLAIM OF THE STATE UPON TITLE IS TO LEAN UPON A
SLENDER REED."  P. 434.  WE THINK THAT SAME STATEMENT IS EQUALLY
APPLICABLE HERE.  TO WHATEVER EXTENT THE FISH IN THE THREE-MILE BELT
OFF CALIFORNIA MAY BE "CAPABLE OF OWNERSHIP" BY CALIFORNIA, WE THINK
THAT "OWNERSHIP" IS INADEQUATE TO JUSTIFY CALIFORNIA IN EXCLUDING ANY
OR ALL ALIENS WHO ARE LAWFUL RESIDENTS OF THE STATE FROM MAKING A
LIVING BY FISHING IN THE OCEAN OFF ITS SHORES WHILE PERMITTING ALL
OTHERS TO DO SO. 

THIS LEAVES FOR CONSIDERATION THE ARGUMENT THAT THIS LAW SHOULD BE
UPHELD ON AUTHORITY OF THOSE CASES WHICH HAVE SUSTAINED STATE LAWS
BARRING ALIENS INELIGIBLE TO CITIZENSHIP FROM LAND OWNERSHIP.  FN8
ASSUMING THE CONTINUED VALIDITY OF THOSE CASES,  FN9  WE THINK THEY
COULD NOT IN ANY EVENT BE CONTROLLING HERE.  THEY RESTED SOLELY UPON
THE POWER OF STATES TO CONTROL THE DEVOLUTION AND OWNERSHIP OF LAND
WITHIN THEIR BORDERS, A POWER LONG EXERCISED AND SUPPORTED ON REASONS
PECULIAR TO REAL PROPERTY.  THEY CANNOT BE EXTENDED TO COVER THIS
CASE. 

THE JUDGMENT IS REVERSED AND REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  THE COMPREHENSIVE LAWS ADOPTED BY CONGRESS REGULATING THE
IMMIGRATION AND NATURALIZATION OF ALIENS ARE INCLUDED IN TITLE 8 OF THE
U.S. CODE; FOR CODIFICATION OF LAWS GOVERNING RACIAL AND COLOR
PREREQUISITES OF ALIENS TO CITIZENSHIP SEE 8 U.S.C. SEC. 703.  AN ACT
ADOPTED BY THE FIRST CONGRESS IN 1790 MADE "FREE WHITE PERSONS" ONLY
ELIGIBLE FOR CITIZENSHIP.  1 STAT. 103.  LATER ACTS HAVE EXTENDED
ELIGIBILITY OF ALIENS TO CITIZENSHIP TO THE FOLLOWING GROUPS:  IN 1870,
"ALIENS OF AFRICAN NATIVITY AND  ...  PERSONS OF AFRICAN DESCENT," 16
STAT. 254, 256; IN 1940, "DESCENDANTS OF RACES INDIGENOUS TO THE
WESTERN HEMISPHERE," 54 STAT. 1137, 1140; IN 1943, "CHINESE PERSONS OR
PERSONS OF CHINESE DESCENT," 57 STAT. 600, 601; AND IN 1946, FILIPINOS
AND "PERSONS OF RACES INDIGENOUS TO INDIA," 60 STAT. 416.  WHILE IT IS
NOT WHOLLY CLEAR WHAT RACIAL GROUPS OTHER THAN JAPANESE ARE NOW
INELIGIBLE TO CITIZENSHIP, IT IS CLEAR THAT JAPANESE ARE AMONG THE FEW
GROUPS STILL NOT ELIGIBLE, SEE OYAMA V. CALIFORNIA, 332 U.S. 633, 635,
N. 3, AND THAT, ACCORDING TO THE 1940 CENSUS, JAPANESE ALIENS
CONSTITUTED THE GREAT MAJORITY OF ALIENS LIVING IN THE UNITED STATES
THEN INELIGIBLE FOR CITIZENSHIP.  SEE CONCURRING OPINION OF MR. JUSTICE
MURPHY IN OYAMA V. CALIFORNIA, SUPRA AT 650, 665, 666, NN. 20 AND 22. 

FN2  REPORT OF THE CALIFORNIA SENATE FACT-FINDING COMMITTEE ON
JAPANESE RESETTLEMENT, MAY 1, 1945, PP. 5-6. 

FN3  AS AMENDED THE CODE SECTION NOW READS:  "PERSONS REQUIRED TO
PROCURE LICENSE:  TO WHOM ISSUABLE.  EVERY PERSON WHO USES OR OPERATES
OR ASSISTS IN USING OR OPERATING ANY BOAT, NET, TRAP, LINE, OR OTHER
APPLIANCE TO TAKE FISH, MOLLUSKS OR CRUSTACEANS FOR PROFIT, OR WHO
BRINGS OR CAUSES FISH, MOLLUSKS OR CRUSTACEANS TO BE BROUGHT ASHORE AT
ANY POINT IN THE STATE FOR THE PURPOSE OF SELLING THE SAME IN A FRESH
STATE, SHALL PROCURE A COMMERCIAL FISHING LICENSE. 

"A COMMERCIAL FISHING LICENSE MAY BE ISSUED TO ANY PERSON OTHER THAN
A PERSON INELIGIBLE TO CITIZENSHIP.  A COMMERCIAL FISHING LICENSE MAY
BE ISSUED TO A CORPORATION ONLY IF SAID CORPORATION IS AUTHORIZED TO DO
BUSINESS IN THIS STATE, IF NONE OF THE OFFICERS OR DIRECTORS THEREOF
ARE PERSONS INELIGIBLE TO CITIZENSHIP, AND IF LESS THAN THE MAJORITY OF
EACH CLASS OF STOCKHOLDERS THEREOF ARE PERSONS INELIGIBLE TO
CITIZENSHIP."  CAL. FISH AND GAME CODE SEC. 990.  IN 1947 THE CODE WAS
AMENDED TO PERMIT "ANY PERSON, NOT A CITIZEN OF THE UNITED STATES," TO
OBTAIN HUNTING AND SPORT FISHING LICENSES, BOTH OF WHICH HAD BEEN
DENIED TO "ALIEN JAPANESE" AND TO PERSONS "INELIGIBLE TO CITIZENSHIP"
UNDER THE 1943 AND 1945 AMENDMENTS.  CAL. STATS. 1947, C. 1329; CAL.
FISH AND GAME CODE SECS. 427, 428. 

FN4  THE SUPERIOR COURT FIRST ORDERED ISSUANCE OF A COMMERCIAL
FISHING LICENSE AUTHORIZING TAKAHASHI TO BRING ASHORE "CATCHES OF FISH
FROM THE WATERS OF THE HIGH SEAS BEYOND THE STATE'S TERRITORIAL
JURISDICTION."  AFTER APPEAL TO THE STATE SUPREME COURT BY THE STATE
COMMISSION THE SUPERIOR COURT AMENDED ITS JUDGMENTS SO AS TO ORDER A
COMMERCIAL LICENSE AUTHORIZING TAKAHASHI TO BRING IN CATCHES OF FISH
TAKEN FROM THE THREE-MILE OCEAN BELT ADJACENT TO THE CALIFORNIA COAST
AS WELL AS FROM THE HIGH SEAS.  THE STATE SUPREME COURT HELD THAT THE
SUPERIOR COURT WAS WITHOUT JURISDICTION TO AMEND ITS JUDGMENT AFTER
APPEAL AND ACCORDINGLY TREATED THE AMENDED JUDGMENT AS VOID. 
CALIFORNIA ARGUES HERE THAT ITS STATE FISH AND GAME COMMISSION IS
AUTHORIZED BY STATUTE TO ISSUE ONLY ONE TYPE OF COMMERCIAL FISHING
LICENSE, NAMELY, ONE PERMITTING OCEAN FISH TO BE BROUGHT ASHORE WHETHER
CAUGHT WITHIN OR WITHOUT THE THREE-MILE BELT, THAT THE SUPERIOR COURT'S
FIRST JUDGMENT ORDERING ISSUANCE OF A LICENSE LIMITED TO CATCHES OF
HIGH SEAS FISH DIRECTED THE COMMISSION TO DO SOMETHING IT WAS WITHOUT
AUTHORITY TO DO, AND THAT ON THIS GROUND WE SHOULD AFFIRM THE STATE
COURT'S DENIAL OF THE REQUESTED LICENSE.  THE STATE SUPREME COURT DID
NOT, HOWEVER, DECIDE THE CASE ON THAT GROUND, BUT RULED AGAINST
PETITIONER ON THE GROUND THAT THE CHALLENGED CODE PROVISION WAS VALID
UNDER THE FEDERAL CONSTITUTION AND THAT THE COMMISSION'S REFUSAL TO
GRANT A LICENSE WAS REQUIRED BY ITS TERMS.  SINCE THE STATE COURT OF
LAST RESORT RELIED SOLELY UPON FEDERAL GROUNDS FOR ITS DECISION, WE MAY
PROPERLY REVIEW ITS ACTION HERE. 

FN5  THE OPINION CITED THE FOLLOWING CASES: MCCREADY V. VIRGINIA, 94
U.S. 391; PATSONE V. PENNSYLVANIA, 232 U.S. 138; HAUENSTEIN V. LYNHAM,
100 U.S. 483; AND BLYTHE V. HINCKLEY, 180 U.S. 333. 

FN6  TRUAX V. RAICH, SUPRA; CHY LUNG V. FREEMAN, 92 U.S. 275, 280;
SEE HINES V. DAVIDOWITZ, SUPRA AT 65-68. 

FN7  YICK WO V. HOPKINS, SUPRA AT 369; UNITED STATES V. WONG KIM ARK,
169 U.S. 649, 696; IN RE TIBURCIO PARROTT, 1 F. 481, 508-509; FRASER V.
MCCONWAY & TORLEY CO., 82 F. 257. 

FN8  TERRACE V. THOMPSON, 263 U.S. 197; PORTERFIELD V. WEBB, 263 U.S.
225; WEBB V. O'BRIEN, 263 U.S. 313; FRICK V. WEBB, 263 U.S. 326. 

FN9  SEE OYAMA V. CALIFORNIA, 332 U.S. 633, 646, 649, 672. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE RUTLEDGE AGREES,
CONCURRING. 

THE OPINION OF THE COURT, IN WHICH I JOIN, ADEQUATELY EXPRESSES MY
VIEWS AS TO ALL BUT ONE IMPORTANT ASPECT OF THIS CASE.  THAT ASPECT
RELATES TO THE FACT THAT SEC. 990 OF THE CALIFORNIA FISH AND GAME CODE,
BARRING THOSE INELIGIBLE TO CITIZENSHIP FROM SECURING COMMERCIAL
FISHING LICENSES, IS THE DIRECT OUTGROWTH OF ANTAGONISM TOWARD PERSONS
OF JAPANESE ANCESTRY.  EVEN THE MOST CURSORY EXAMINATION OF THE
BACKGROUND OF THE STATUTE DEMONSTRATES THAT IT WAS DESIGNED SOLELY TO
DISCRIMINATE AGAINST SUCH PERSONS IN A MANNER INCONSISTENT WITH THE
CONCEPT OF EQUAL PROTECTION OF THE LAWS.  LEGISLATION OF THAT TYPE IS
NOT ENTITLED TO WEAR THE CLOAK OF CONSTITUTIONALITY. 

THE STATUTE IN QUESTION IS BUT ONE MORE MANIFESTATION OF THE ANTI
JAPANESE FEVER WHICH HAS BEEN EVIDENT IN CALIFORNIA IN VARYING DEGREES
SINCE THE TURN OF THE CENTURY.  SEE CONCURRING OPINION IN OYAMA V.
CALIFORNIA, 332 U.S. 633, 650, AND DISSENTING OPINION IN KOREMATSU V.
UNITED STATES, 323 U.S. 214, 233.  THAT FEVER, OF COURSE, IS TRACEABLE
TO THE REFUSAL OR THE INABILITY OF CERTAIN GROUPS TO ADJUST THEMSELVES
ECONOMICALLY AND SOCIALLY RELATIVE TO RESIDENTS OF JAPANESE ANCESTRY. 
FOR SOME YEARS PRIOR TO THE JAPANESE ATTACK ON PEARL HARBOR, THESE
PROTAGONISTS OF INTOLERANCE HAD BEEN LEVELING UNFOUNDED ACCUSATIONS AND
INNUENDOES AGAINST JAPANESE FISHING CREWS OPERATING OFF THE COAST OF
CALIFORNIA.  THESE FISHERMEN NUMBERED ABOUT A THOUSAND AND MOST OF THEM
HAD LONG RESIDED IN THAT STATE.  IT WAS CLAIMED THAT THEY WERE ENGAGED
NOT ONLY IN FISHING BUT IN ESPIONAGE AND OTHER ILLICIT ACTIVITIES ON
BEHALF OF THE JAPANESE GOVERNMENT.  AS WAR WITH JAPAN APPROACHED AND
FINALLY BECAME A REALITY, THESE CHARGES WERE REPEATED WITH INCREASING
VIGOR.  YET FULL INVESTIGATIONS BY APPROPRIATE AUTHORITIES FAILED TO
REVEAL ANY COMPETENT SUPPORTING EVIDENCE; NOT EVEN ONE JAPANESE
FISHERMAN WAS ARRESTED FOR ALLEGED ESPIONAGE.  SUCH BASELESS
ACCUSATIONS CAN ONLY BE VIEWED AS AN INTEGRAL PART OF THE LONG CAMPAIGN
TO UNDERMINE THE REPUTATION OF PERSONS OF JAPANESE BACKGROUND AND TO
DISCOURAGE THEIR RESIDENCE IN CALIFORNIA.  SEE MCWILLIAMS, PREJUDICE
(1944), CH. VII. 

MORE SPECIFICALLY, THESE ACCUSATIONS WERE USED TO SECURE THE PASSAGE
OF DISCRIMINATORY FISHING LEGISLATION.  BUT SUCH LEGISLATION WAS NOT
IMMEDIATELY FORTHCOMING.  THE CONTINUED PRESENCE IN CALIFORNIA OF THE
JAPANESE FISHERMEN WITHOUT THE OCCURRENCE OF ANY UNTOWARD INCIDENTS ON
THEIR PART SERVED FOR A TIME AS ADEQUATE AND LIVING REFUTATION OF THE
PROPAGANDA.  THEN CAME THE EVACUATION OF ALL PERSONS OF JAPANESE
ANCESTRY FROM THE WEST COAST.  SEE KOREMATSU V. UNITED STATES, SUPRA.
ONCE EVACUATION WAS ACHIEVED, AN INTENSIVE CAMPAIGN WAS BEGUN TO
PREVENT THE RETURN TO CALIFORNIA OF THE EVACUEES.  ALL OF THE OLD
CHARGES, INCLUDING THE ONES RELATING TO THE FISHERMEN, WERE REFURBISHED
AND AUGMENTED.  THIS TIME THE JAPANESE WERE ABSENT AND WERE UNABLE TO
PROVIDE EFFECTIVE OPPOSITION.  THE WINDS OF RACIAL ANIMOSITY BLEW
UNABATED. 

DURING THE HEIGHT OF THIS RACIAL STORM IN 1943, NUMEROUS ANTI
JAPANESE BILLS WERE CONSIDERED BY THE CALIFORNIA LEGISLATORS.  SEVERAL
AMENDMENTS TO THE ALIEN LAND LAW WERE ENACTED.  AND SEC. 990 OF THE
FISH AND GAME CODE WAS ALTERED TO PROVIDE THAT "A COMMERCIAL FISHING
LICENSE MAY BE ISSUED TO ANY PERSON OTHER THAN AN ALIEN JAPANESE."  NO
PRETENSE WAS MADE THAT THIS ALTERATION WAS IN THE INTERESTS OF
CONSERVATION.  IT WAS MADE AT A TIME WHEN ALL ALIEN JAPANESE WERE
EXCLUDED FROM CALIFORNIA, WITH NO IMMEDIATE RETURN INDICATED; THUS THE
BANNING OF FISHING LICENSES FOR THEM COULD HAVE NO EARLY EFFECT UPON
THE CONSERVATION OF FISH.  MOREOVER, THE PERIOD DURING WHICH THIS
AMENDMENT WAS PASSED WAS ONE IN WHICH BOTH FEDERAL AND STATE
AUTHORITIES WERE DOING THEIR UTMOST TO ENCOURAGE GREATER FOOD
PRODUCTION FOR WARTIME PURPOSES.  THE MAIN DESIRE AT THIS TIME WAS TO
INCREASE RATHER THAN TO DECREASE THE CATCH OF FISH.  CERTAINLY THE
CONTEMPORANEOUS BULLETINS AND REPORTS OF THE BUREAU OF MARINE FISHERIES
OF CALIFORNIA DID NOT INDICATE THE EXISTENCE OF ANY CONSERVATION
PROBLEM DUE TO AN EXCESS NUMBER OF FISHERMEN.  SEE THIRTY-EIGHTH
BIENNIAL REPORT (JULY 1, 1944), PP. 33-36; FISH BULLETIN NO. 58, FOR
THE YEAR 1940; FISH BULLETIN NO. 59, FOR THE YEARS 1941 AND 1942. 

THESE CIRCUMSTANCES ONLY CONFIRM THE OBVIOUS FACT THAT THE 1943
AMENDMENT TO SEC. 990 WAS INTENDED TO DISCOURAGE THE RETURN TO
CALIFORNIA OF JAPANESE ALIENS.  BY TAKING AWAY THEIR COMMERCIAL FISHING
RIGHTS, THE LIVES OF THOSE ALIENS WHO PLIED THE FISHERMAN'S TRADE WOULD
BE MADE MORE DIFFICULT AND UNREMUNERATIVE.  AND THE NON-JAPANESE
FISHERMEN WOULD THEREBY BE FREE FROM THE COMPETITION AFFORDED BY THESE
ALIENS.  THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT,
HOWEVER, DOES NOT PERMIT A STATE TO DISCRIMINATE AGAINST RESIDENT
ALIENS IN SUCH A FASHION, WHETHER THE PURPOSE BE TO GIVE EFFECT TO
RACIAL ANIMOSITY OR TO PROTECT THE COMPETITIVE INTERESTS OF OTHER
RESIDENTS. 

THE 1945 AMENDMENT TO SEC. 990 WHICH IS NOW BEFORE US STANDS IN NO
BETTER POSITION THAN THE 1943 AMENDMENT.  THIS LATER ALTERATION
ELIMINATED THE REFERENCE TO "ALIEN JAPANESE" AND SUBSTITUTED THEREFOR
"A PERSON INELIGIBLE TO CITZENSHIP."  ADOPTION OF THIS CHANGE ALSO
OCCURRED DURING A PERIOD WHEN ANTI-JAPANESE AGITATION IN CALIFORNIA HAD
REACHED ONE OF ITS PERIODIC PEAKS.  THE ANNOUNCEMENT OF THE END OF THE
JAPANESE EXCLUSION ORDERS, PLUS THIS COURT'S DECISION IN EX PARTE ENDO,
323 U.S. 283, MADE THE RETURN TO CALIFORNIA OF MANY OF THE EVACUEES A
REASONABLE CERTAINTY.  THE PREJUDICES, THE ANTAGONISMS AND THE HATREDS
WERE ONCE AGAIN AROUSED, PUNCTUATED THIS TIME BY NUMEROUS ACTS OF
VIOLENCE AGAINST THE RETURNING JAPANESE AMERICANS.  ANOTHER WAVE OF
ANTI-JAPANESE PROPOSALS MARKED THE 1945 LEGISLATIVE SESSION.  IT WAS IN
THIS SETTING THAT THE AMENDMENT TO SEC. 990 WAS PROPOSED AND ENACTED IN
1945.    IT IS OF INTEREST AND SIGNIFICANCE THAT THE AMENDMENT IN
QUESTION WAS PROPOSED BY A LEGISLATIVE COMMITTEE DEVOTED TO JAPANESE
RESETTLEMENT PROBLEMS, NOT BY A COMMITTEE CONCERNED WITH THE
CONSERVATION OF FISH.  THE SENATE FACT-FINDING COMMITTEE ON JAPANESE
RESETTLEMENT ISSUED A REPORT ON MAY 1, 1945.  THIS REPORT DEALT WITH
SUCH MATTERS AS THE ALIEN LAND LAW, THE JAPANESE LANGUAGE SCHOOLS, DUAL
CITIZENSHIP AND THE TULE LAKE RIOT.  AND UNDER THE HEADING "JAPANESE
FISHING BOATS" (PP. 5-6) APPEARED THIS EXPLANATION OF THE PROPOSED
AMENDMENT TO SEC. 990: 

"THE COMMITTEE GAVE LITTLE CONSIDERATION TO THE PROBLEMS OF THE USE
OF FISHING VESSELS ON OUR COAST OWNED AND OPERATED BY JAPANESE, SINCE
THIS MATTER SEEMS TO HAVE PREVIOUSLY BEEN COVERED BY LEGISLATION.  THE
COMMITTEE, HOWEVER, FEELS THAT THERE IS DANGER OF THE PRESENT STATUTE
BEING DECLARED UNCONSTITUTIONAL, ON THE GROUNDS OF DISCRIMINATION,
SINCE IT IS DIRECTED AGAINST ALIEN JAPANESE.  IT IS BELIEVED THAT THIS
LEGAL QUESTION CAN PROBABLY BE ELIMINATED BY AN AMENDMENT WHICH HAS
BEEN PROPOSED TO THE BILL WHICH WOULD MAKE IT APPLY TO ANY ALIEN WHO IS
INELIGIBLE TO CITIZENSHIP.  THE COMMITTEE HAS INTRODUCED SENATE BILL
413 TO MAKE THIS CHANGE IN THE STATUTE." 

NOT A WORD WAS SAID IN THIS REPORT REGARDING THE NEED FOR THE
CONSERVATION OF FISH OR THE NECESSITY OF LIMITING THE NUMBER OF
FISHERMEN.  THE OBVIOUS THOUGHT BEHIND THE AMENDMENT WAS TO ATTEMPT TO
LEGALIZE THE DISCRIMINATION AGAINST JAPANESE ALIEN FISHERMEN BY
DROPPING THE SPECIFIC REFERENCE TO THEM. 

THE PROPOSED REVISION WAS ADOPTED.  THE TRIAL COURT BELOW CORRECTLY
DESCRIBED THE SITUATION AS FOLLOWS:  "AS IT WAS COMMONLY KNOWN TO THE
LEGISLATORS OF 1945 THAT JAPANESE WERE THE ONLY ALIENS INELIGIBLE TO
CITIZENSHIP WHO ENGAGED IN COMMERCIAL FISHING IN OCEAN WATERS BORDERING
ON CALIFORNIA, AND AS THE COURT MUST TAKE JUDICIAL NOTICE OF THE SAME
FACT, IT BECOMES MANIFEST THAT IN ENACTING THE PRESENT VERSION OF
JAPANESE FROM THOSE ENTITLED TO A COMMERCIAL FISHING LICENSE BY MEANS
OF DESCRIPTION RATHER THAN BY NAME.  TO ALL INTENTS AND PURPOSES AND IN
EFFECT THE PROVISION IN THE 1943 AND 1945 AMENDMENTS ARE THE SAME, THE
THIN VEIL USED TO CONCEAL A PURPOSE BEING TOO TRANSPARENT.  UNDER EACH
AND BOTH, ALIEN JAPANESE ARE DENIED A RIGHT TO A LICENSE TO CATCH FISH
ON THE HIGH SEAS FOR PROFIT, AND TO BRING THEM TO SHORE FOR THE PURPOSE
OF SELLING THE SAME IN A FRESH STATE  ...  THIS DISCRIMINATION
CONSTITUTES AN UNEQUAL EXACTION AND A GREATER BURDEN UPON THE PERSONS
OF THE CLASS NAMED THAN THAT IMPOSED UPON OTHERS IN THE SAME CALLING
AND UNDER THE SAME CONDITIONS, AND AMOUNTS TO PROHIBITION.  THIS
DISCRIMINATION, PATENTLY HOSTILE, IS NOT BASED UPON A REASONABLE GROUND
OF CLASSIFICATION AND, TO THAT EXTENT, THE SECTION IS IN VIOLATION OF
STATES,  ...  " 

WE SHOULD NOT BLINK AT THE FACT THAT SEC. 990, AS NOW WRITTEN, IS A
DISCRIMINATORY PIECE OF LEGISLATION HAVING NO RELATION WHATEVER TO ANY
CONSTITUTIONALLY COGNIZABLE INTEREST OF CALIFORNIA.  IT WAS DRAWN
AGAINST A BACKGROUND OF RACIAL AND ECONOMIC TENSION.  IT IS DIRECTED IN
SPIRIT AND IN EFFECT SOLELY AGAINST ALIENS OF JAPANESE BIRTH.  IT
DENIES THEM COMMERCIAL FISHING RIGHTS NOT BECAUSE THEY THREATEN THE
SUCCESS OF ANY CONSERVATION PROGRAM, NOT BECAUSE THEIR FISHING
ACTIVITIES CONSTITUTE A CLEAR AND PRESENT DANGER TO THE WELFARE OF
CALIFORNIA OR OF THE NATION, BUT ONLY BECAUSE THEY ARE OF JAPANESE
STOCK, A STOCK WHICH HAS HAD THE MISFORTUNE TO AROUSE ANTAGONISM AMONG
CERTAIN POWERFUL INTERESTS.  WE NEED BUT UNBUTTON THE SEEMINGLY
INNOCENT WORDS OF SEC. 990 TO DISCOVER BENEATH THEM THE VERY NEGATION
OF ALL THE IDEALS OF THE EQUAL PROTECTION CLAUSE.  NO MORE IS NECESSARY
TO WARRANT A REVERSAL OF THE JUDGMENT BELOW. 

MR. JUSTICE REED, DISSENTING. 

THE REASONS WHICH LEAD ME TO CONCLUDE THAT THE JUDGMENT OF THE
SUPREME COURT OF CALIFORNIA SHOULD BE AFFIRMED MAY BE BRIEFLY STATED. 
AS FISHING RIGHTS HAVE BEEN TREATED TRADITIONALLY AS A NATURAL
RESOURCE, IN THE ABSENCE OF FEDERAL REGULATION, CALIFORNIA AS A
SOVEREIGN STATE HAS POWER TO REGULATE THE TAKING AND HANDLING OF FISH
IN THE WATERS BORDERING ITS SHORES.  FN1  IT IS, I THINK, ONE OF THE
NATURAL RESOURCES OF THE STATE THAT MAY BE PRESERVED FROM EXPLOITATION
BY ALIENS.  FN2  THE GROUND FOR THIS POWER IN THE ABSENCE OF ANY
EXERCISE OF FEDERAL AUTHORITY IS CALIFORNIA'S AUTHORITY OVER ITS
FISHERIES. 

THE RIGHT TO FISH IS ANALOGOUS TO THE RIGHT TO OWN LAND, A PRIVILEGE
WHICH A STATE MAY DENY TO ALIENS AS TO LAND WITHIN ITS BORDERS. 
TERRACE V. THOMPSON, 263 U.S. 197.  FN3  IT IS CLOSELY AKIN TO THE
RIGHT TO HUNT, A PRIVILEGE FROM WHICH A STATE MAY BAR ALIENS, IF
REASONABLY DEEMED ADVANTAGEOUS TO ITS CITIZENS.  FN4  A STATE'S POWER
HAS EVEN BEEN HELD TO EXTEND TO THE EXCLUSION OF ALIENS FROM THE
OPERATION OF POOL AND BILLIARD HALLS WHEN A CITY DEEMED THEM NOT AS
WELL QUALIFIED AS CITIZENS FOR THE CONDUCT OF A BUSINESS THOUGHT TO
HAVE HARMFUL TENDENCIES.  CLARKE V. DECKEBACH, 274 U.S. 392.  FN5 

THE FEDERAL GOVERNMENT HAS NOT PURSUED A POLICY OF EQUAL TREATMENT OF
ALIENS AND CITIZENS.  CITIZENS HAVE RIGHTS SUPERIOR TO THOSE OF ALIENS
IN THE OWNERSHIP OF LAND AND IN EXPLOITING NATURAL RESOURCES.  FN6
PERHAPS CONGRESS AS A MATTER OF IMMIGRATION POLICY MAY REQUIRE THAT
STATES OPEN EVERY DOOR OF OPPORTUNITY IN AMERICA TO ALL RESIDENT
ALIENS, BUT UNTIL CONGRESS SO DETERMINES AS TO FISHERIES, I DO NOT FEEL
THAT THE JUDICIAL ARM OF THE GOVERNMENT SHOULD REQUIRE THE STATES TO
ADMIT ALL ALIENS TO THIS PRIVILEGE. 

CERTAINLY TRUAX V. RAICH, 239 U.S. 33, UPON WHICH THE MAJORITY
OPINION APPEARS TO RELY IN HOLDING THAT THE CALIFORNIA STATUTE DENIES
EQUAL PROTECTION IN ATTEMPTING TO CLASSIFY ALIENS BY PUTTING
RESTRICTIONS ON THEIR RIGHT TO LAND FISH, IS NOT AN AUTHORITY FOR SUCH
A DECISION.  THE POWER OF A STATE TO DISCRIMINATE AGAINST ALIENS ON
PUBLIC WORKS AND THE EXPLOITATION OF NATURAL RESOURCES WAS RECOGNIZED
IN THAT CASE.  FN7  AND, AT THE VERY TIME THAT IT WAS UNDER
CONSIDERATION, THIS COURT ALSO HAD BEFORE IT HEIM V. MCCALL, 239 U.S.
175.  FN8  IN THAT CASE, HEIM ATTACKED THE CONSTITUTIONALITY OF A NEW
YORK STATUTE WHICH PROVIDED THAT "IN THE CONSTRUCTION OF PUBLIC WORKS
BY THE STATE OR A MUNICIPALITY, OR BY PERSONS CONTRACTING WITH THE
STATE OR SUCH MUNICIPALITY, ONLY CITIZENS OF THE UNITED STATES SHALL BE
EMPLOYED; AND IN ALL CASES WHERE LABORERS ARE EMPLOYED ON ANY SUCH
PUBLIC WORKS, PREFERENCE SHALL BE GIVEN CITIZENS OF THE STATE OF NEW
YORK."  FN9  A UNANIMOUS COURT HELD THAT THE STATUTE, WHICH WAS
ATTACKED ON THE GROUND THAT IT DENIED ALIENS THEIR RIGHTS UNDER THE
PRIVILEGES AND IMMUNITIES, DUE PROCESS, AND EQUAL PROTECTION CLAUSES OF
THE CONSTITUTION, WAS A CONSTITUTIONAL EXERCISE OF STATE POWER AS
APPLIED TO THE CONSTRUCTION OF NEW YORK CITY SUBWAYS BY PRIVATE
CONTRACTORS.  FN10  THE CONSTITUTION THAT PERMITS THE BAR OF ALIENS
FROM PUBLIC WORKS SURELY MUST PERMIT THEIR BAR FROM STATE FISHING
RIGHTS.  A STATE HAS POWER TO EXCLUDE FROM ENJOYMENT OF ITS NATURAL
RESOURCES THOSE WHO ARE UNWILLING OR UNABLE TO BECOME CITIZENS. 

IF ALIENS, AS I THINK THEY CAN, MAY BE EXCLUDED BY A STATE FROM
FISHING PRIVILEGES, I SEE NO REASON WHY THE CLASSIFICATION ESTABLISHED
BY CALIFORNIA EXCLUDING ONLY ALIENS INELIGIBLE TO CITIZENSHIP IS
PROHIBITED BY THE CONSTITUTION.  TERRACE V. THOMPSON, 263 U.S. 197,
220.  WHATEVER WE MAY THINK OF THE WISDOM OF CALIFORNIA'S STATUTE, WE
SHOULD INTERVENE ONLY WHEN WE CONCLUDE THE STATE STATUTE PASSES
CONSTITUTIONAL LIMITS. 

FN1  BAYSIDE FISH FLOUR CO. V. GENTRY, 297 U.S. 422, 425. 

THE STATUTE, SEE NOTE 3 OF THE COURT'S OPINION FOR THE TEXT, SEEMS
OBVIOUSLY TO CAST NO BURDEN ON COMMERCE. 

A WASHINGTON STATUTE SIMILAR TO THE ONE NOW BEFORE US WAS CONSIDERED
IN LUBETICH V. POLLOCK, 6 F.2D 237. 

FN2  EVEN CITIZENS OF OTHER STATES HAVE BEEN EXCLUDED BY A STATE FROM
SUCH OPPORTUNITIES.  MCCREADY V. VIRGINIA, 94 U.S. 391(PLANTING OYSTER
BEDS).  FISHING LICENSES DISCRIMINATING BETWEEN RESIDENTS AND NON
RESIDENTS ARE PERMISSIBLE.  HAAVIK V. ALASKA PACKERS ASSN., 263 U.S.
510. 

FN3  THE RIGHT OF AN ALIEN TO OWN LAND IS CONTROLLED BY THE LAW OF
THE STATE IN WHICH THE LAND IS LOCATED.  SUCH WAS THE RULE OF THE
COMMON LAW.  COLLINGWOOD V. PACE, 1 VENT.  413, 86 ENG. REP. 262.  THAT
HAS LONG BEEN THE LAW OF NATIONS, 2 VATTEL, LAW OF NATIONS (1883) C. 8,
SEC. 114, AND HAS BEEN ACCEPTED IN THIS COUNTRY.  CHIRAC V. CHIRAC, 2
WHEAT.  259; LEVY V. M'CARTEE, 6 PET. 102, 113; HAUENSTEIN V. LYNHAM,
100 U.S. 483; BLYTHE V. HINCKLEY, 180 U.S. 333, 341.  WHETHER THE
PHILOSOPHICAL BASIS OF THAT POWER, OR THE POWER OVER FISH AND GAME, IS
A THEORY OF OWNERSHIP OR TRUSTEESHIP FOR ITS CITIZENS OR RESIDENTS OR
CONSERVATION OF NATURAL RESOURCES OR PROTECTION OF ITS LAND OR COASTS
IS NOT MATERIAL.  THE RIGHT TO CONTROL THE OWNERSHIP OF LAND RESTS IN
SOVEREIGN GOVERNMENTS AND, IN THE UNITED STATES, IT RESTS WITH THE
INDIVIDUAL STATES IN THE ABSENCE OF FEDERAL ACTION BY TREATY OR
OTHERWISE. 

FN4  PATSONE V. PENNSYLVANIA, 232 U.S. 138.  IN EXPRESSING THE
CONCLUSION OF THE COURT, MR. JUSTICE HOLMES PHRASED THE RULE AS
FOLLOWS, PP. 145-46:  "IT IS TO BE REMEMBERED THAT THE SUBJECT OF THIS
WHOLE DISCUSSION IS WILD GAME, WHICH THE STATE MAY PRESERVE FOR ITS OWN
CITIZENS IF IT PLEASES." 

FN5  IN THAT CASE A UNANIMOUS COURT, SPEAKING THROUGH MR. JUSTICE
STONE, SAID, P. 396: 

"THE OBJECTIONS TO THE CONSTITUTIONALITY OF THE ORDINANCE ARE NOT
PERSUASIVE.  ALTHOUGH THE FOURTEENTH AMENDMENT HAS BEEN HELD TO
PROHIBIT PLAINLY IRRATIONAL DISCRIMINATION AGAINST ALIENS, ...  IT DOES
NOT FOLLOW THAT ALIEN RACE AND ALLEGIANCE MAY NOT BEAR IN SOME
INSTANCES SUCH A RELATION TO A LEGITIMATE OBJECT OF LEGISLATION AS TO
BE MADE THE BASIS OF A PERMITTED CLASSIFICATION." 

FN6  THE UNITED STATES LIMITS THE RIGHTS OF ALIENS AS COMPARED WITH
CITIZENS IN LAND OWNERSHIP IN ITS TERRITORIES, 8 U.S.C. SECS. 71-86; IN
DISPOSITION OF MINERAL LANDS, 30 U.S.C. SEC. 181; OF PUBLIC LANDS, 43
U.S.C. SEC. 161; IN ENGAGING IN COASTWISE TRADE, 46 U.S.C. SECS. 11,
13; IN OPERATING AIRCRAFT, 49 U.S.C. SECS. 176(C), 521. 

IT WAS DEEMED NECESSARY TO LIMIT THE BENEFITS OF THE EMERGENCY RELIEF
APPROPRIATION ACT OF 1938 TO ALIENS WHO HAD "FILED A DECLARATION OF
INTENTION TO BECOME AN AMERICAN CITIZEN  ...  "  52 STAT. 809, 813. 

FN7  239 U.S. 33, 39-40:  "THE DISCRIMINATION DEFINED BY THE ACT DOES
NOT PERTAIN TO THE REGULATION OR DISTRIBUTION OF THE PUBLIC DOMAIN, OR
OF THE COMMON PROPERTY OR RESOURCES OF THE PEOPLE OF THE STATE, THE
ENJOYMENT OF WHICH MAY BE LIMITED TO ITS CITIZENS AS AGAINST BOTH
ALIENS AND THE CITIZENS OF OTHER STATES.  ...  THE CASE NOW PRESENTED
IS NOT WITHIN THESE DECISIONS, OR WITHIN THOSE RELATING TO THE
DEVOLUTION OF REAL PROPERTY  ...  ; AND IT SHOULD BE ADDED THAT THE ACT
IS NOT LIMITED TO PERSONS WHO ARE ENGAGED ON PUBLIC WORK OR RECEIVE THE
BENEFIT OF PUBLIC MONEYS.  THE DISCRIMINATION HERE INVOLVED IS IMPOSED
UPON THE CONDUCT OF ORDINARY PRIVATE ENTERPRISE." 

FN8  TRUAX V. RAICH, SUPRA, WAS ARGUED OCTOBER 15, 1915, AND DECIDED
NOVEMBER 1, 1915; HEIM V. MCCALL, SUPRA, WAS ARGUED OCTOBER 12, 1915,
AND DECIDED NOVEMBER 29, 1915. 

FN9  239 U.S. 175, 176-77. 

FN10  THE PROBLEM OF NATURAL RESOURCES WAS NOT DIRECTLY DISCUSSED IN
THE OPINION.  BUT IT IS CLEAR THAT THE COURT WAS NOT UNAWARE OF THE
RELATION OF ITS DECISION TO THE NATURAL RESOURCES CASES.  SEE 239 U.S.
175, 194.  THE FACT THAT THIS CASE WAS BEFORE THE COURT AT THE SAME
TIME AS TRUAX V. RAICH, PROBABLY EXPLAINS THE CAREFUL RESERVATION OF
THE NATURAL RESOURCES AND PUBLIC WORKS PROBLEMS IN THAT CASE.  SEE 239
U.S. 33, 39-40. 

MR. JUSTICE JACKSON JOINS IN THIS DISSENT. 
..END :











PHYLE V. DUFFY, 334 U.S. 431 


NO. 655.  ARGUED APRIL 20-21, 1948.  - DECIDED JUNE 7, 1948.  - 30
CAL.2D 838, 186 P.2D 134, CERTIORARI DISMISSED. 


PETITIONER WAS CONVICTED OF MURDER, SENTENCED TO DEATH, AND IMPRISONED
PENDING EXECUTION.  IN COMPLIANCE WITH A CALIFORNIA STATUTE FORBIDDING
THE EXECUTION OF AN INSANE PERSON AND PRESCRIBING A PROCEDURE FOR
OBTAINING A JUDICIAL DETERMINATION OF A PRISONER'S SANITY (TO BE
INITIATED BY THE WARDEN IF "THERE IS GOOD REASON TO BELIEVE" THAT HE
HAS BECOME INSANE), PETITIONER WAS ADJUDGED INSANE AND TAKEN TO A STATE
HOSPITAL.  THEREAFTER, WITHOUT NOTICE OR HEARING, THE MEDICAL
SUPERINTENDENT OF THE HOSPITAL CERTIFIED THAT PETITIONER'S REASON HAD
BEEN RESTORED; AND HE WAS RETURNED TO PRISON AND A NEW DATE WAS SET FOR
HIS EXECUTION.  HE INSTITUTED A HABEAS CORPUS PROCEEDING IN THE STATE
SUPREME COURT; BUT THAT COURT DENIED RELIEF.  HELD:  SINCE THE JUDGMENT
DENYING HABEAS CORPUS MAY REST ON THE ADEQUATE NON-FEDERAL GROUND THAT
PETITIONER HAD PURSUED THE WRONG STATE REMEDY, IT IS NOT APPROPRIATE
FOR THIS COURT AT THIS TIME TO PASS ON THE FEDERAL CONSTITUTIONAL
QUESTIONS PRESENTED.  PP. 432-444. 

(A)  IT APPEARS THAT THERE IS A STATE REMEDY BY MANDAMUS AVAILABLE TO
PETITIONER UNDER WHICH HE CAN INVOKE JUDICIAL ACTION TO COMPEL THE
WARDEN TO AGAIN INITIATE JUDICIAL PROCEEDINGS TO DETERMINE PETITIONER'S
SANITY AND THAT IN SUCH MANDAMUS PROCEEDING THE COURT WILL HEAR AND
CONSIDER EVIDENCE TO DETERMINE WHETHER THERE IS "REASON TO BELIEVE"
THAT PETITIONER IN INSANE.  PP. 440-442. 

(B)  NOBLES V. GEORGIA, 168 U.S. 398, DISTINGUISHED.  PP. 437-439. 

(C)  A DECLARATION BY THE ATTORNEY GENERAL OF CALIFORNIA THAT
PETITIONER HAS NOT AVAILED HIMSELF OF THE APPROPRIATE STATE REMEDY IS
ENTITLED TO GREAT WEIGHT, IN THE ABSENCE OF CONTROLLING STATE STATUTES
AND COURT DECISIONS.  P. 441. 

(D)  ALTHOUGH MANDAMUS MIGHT NOT BE AVAILABLE UNDER CALIFORNIA LAW IF
THERE WERE ANOTHER REMEDY, SO FAR AS HERE APPEARS, AND IN THE LIGHT OF
THE DECISION OF THE STATE SUPREME COURT, MANDAMUS TO COMPEL ACTION BY
THE WARDEN IS THE ONLY REMEDY AVAILABLE TO THE PETITIONER.  P. 442. 

(E)  THIS COURT CAN NOT SAY AT THIS TIME THAT THE REMEDY BY MANDAMUS
AVAILABLE TO PETITIONER UNDER CALIFORNIA LAW WILL BE LESS THAN A
SUBSTANTIAL EQUIVALENT OF ONE WHEREBY HE COULD APPLY DIRECTLY TO A
COURT FOR A FULL HEARING.  PP. 442-444. 

PHYLE V. DUFFY, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

IN A HABEAS CORPUS PROCEEDING INSTITUTED BY PETITIONER IN THE SUPREME
COURT OF CALIFORNIA, THAT COURT DENIED RELIEF.  30 CAL.2D 838, 186 P.2D
134.  THIS COURT GRANTED CERTIORARI.  333 U.S. 841.  CERTIORARI
DISMISSED, P. 444. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER IS UNDER SENTENCE OF DEATH FOR MURDER IN THE FIRST
DEGREE IMPOSED BY A CALIFORNIA SUPERIOR COURT AND AFFIRMED BY THE STATE
SUPREME COURT.  28 CAL.2D 671, 171 P.2D 428.  THE VALIDITY OF THAT
SENTENCE IS NOT HERE CHALLENGED.  FN1  BUT SEC. 1367 OF THE CALIFORNIA
PENAL CODE PROVIDES THAT "A PERSON CANNOT BE TRIED, ADJUDGED TO
PUNISHMENT, OR PUNISHED FOR A PUBLIC OFFENSE, WHILE HE IS INSANE." 
THUS IF PETITIONER IS INSANE, CALIFORNIA LAW PROHIBITS HIS EXECUTION
UNDER THE DEATH SENTENCE WHICH HE RECEIVED.  THE LEGAL QUESTIONS HERE
PRESENTED RELATE TO THE PROCEDURES ADOPTED BY CALIFORNIA TO DETERMINE
WHETHER PETITIONER IS SANE OR INSANE AS A MATTER OF FACT. 

IT IS PETITIONER'S CONTENTION THAT, THOUGH HAVING BEEN PRONOUNCED
INSANE IN A JUDICIAL PROCEEDING AFTER HIS CONVICTION, AND THOUGH HE IN
FACT IS STILL INSANE, HE IS ABOUT TO BE EXECUTED BECAUSE A STATE
DOCTOR, ACTING UNDER AUTHORITY OF STATE STATUTES, HAS DECLARED HIM
RESTORED TO SANITY.  THE DOCTOR REACHED HIS DETERMINATION WITHOUT
NOTICE OR HEARINGS, AND WITHOUT ANY OPPORTUNITY ON PETITIONER'S PART TO
OBTAIN AN ORIGINAL COURT HEARING AND ADJUDICATION OF HIS SANITY, OR
EVEN TO OBTAIN A COURT REVIEW OF THE DOCTOR'S CONCLUSION THAT HE IS
SANE.  THIS PROCEDURE IT IS ARGUED CONSTITUTES A DENIAL TO PETITIONER
OF THAT DUE PROCESS OF LAW GUARANTEED HIM BY THE FOURTEENTH AMENDMENT. 

THIS CONTENTION WAS URGED UPON THE CALIFORNIA SUPREME COURT IN HABEAS
CORPUS PROCEEDINGS THERE INSTITUTED.  THAT COURT ENTERTAINED AND
CONSIDERED THE PETITION, BUT, WITH TWO JUDGES DISSENTING, DENIED
RELIEF, SUSTAINING THE VALIDITY OF THE POWER OF THE STATE'S EXECUTIVE
AGENTS TO FOLLOW THE PRESCRIBED STATUTORY PROCEDURES.  30 CAL.2D 838,
186 P.2D 134.  WE GRANTED CERTIORARI BECAUSE OF THE SERIOUS NATURE OF
THE DUE PROCESS CONTENTIONS PRESENTED IN THE PETITION.  333 U.S. 841. 
HERE THE CALIFORNIA ATTORNEY GENERAL, WHILE SUPPORTING THE STATE
SUPREME COURT'S DENIAL OF HABEAS CORPUS, ASSERTS THAT CALIFORNIA
AFFORDS PETITIONER AN ADEQUATE JUDICIAL REMEDY BY WAY OF MANDAMUS, A
PROCEDURE WHICH HAS NOT YET BEEN SOUGHT BY PETITIONER. 

THE CALIFORNIA PROCEDURE MAY PERHAPS BE BETTER UNDERSTOOD BY
EXPLAINING THE APPLICATION OF THE CONTROLLING CALIFORNIA STATUTES TO
PETITIONER'S CASE.  WHILE HE WAS IN PRISON AWAITING EXECUTION OF THE
DEATH SENTENCE A QUESTION AROSE CONCERNING THE PETITIONER'S SANITY AT
THAT TIME.  SECTION 3701 OF THE STATE PENAL CODE  FN2  PRESCRIBES THAT
IF "THERE IS GOOD REASON TO BELIEVE" THAT A DEFENDANT UNDER SENTENCE OF
DEATH "HAS BECOME INSANE, THE WARDEN MUST CALL SUCH FACT TO THE
ATTENTION OF THE DISTRICT ATTORNEY."  IT IS THE DISTRICT ATTORNEY'S
"DUTY" IMMEDIATELY TO INSTITUTE PROCEEDINGS IN AN APPROPRIATE TRIAL
COURT TO DETERMINE THE SANITY OF THE DEFENDANT, AND THE COURT "MUST AT
ONCE" SUMMON A JURY OF TWELVE TO "HEAR SUCH INQUIRY."  IN PETITIONER'S
CASE THIS PRESCRIBED COURSE WAS FOLLOWED, A JUDICIAL HEARING WAS HELD
AS PROVIDED BY SEC. 3702,  FN3 AND PETITIONER WAS ADJUDGED INSANE.  IN
ACCORDANCE WITH SEC. 3703  FN4  THE COURT THEN ORDERED THAT PETITIONER
"BE TAKEN TO A STATE HOSPITAL FOR THE INSANE AND BE THERE KEPT IN SAFE
CONFINEMENT UNTIL HIS REASON IS RESTORED."  IT WILL BE NOTED THAT THE
PETITIONER OBTAINED A JUDICIAL HEARING AS TO SANITY ONLY BECAUSE THE
WARDEN INSTITUTED PROCEEDINGS AFTER DETERMINING THAT THERE WAS "GOOD
REASON TO BELIEVE" THAT THE PETITIONER WAS INSANE.  THUS, THE
OPPORTUNITY FOR A PERSON UNDER SENTENCE OF DEATH TO HAVE A HEARING
BEFORE JUDGE AND JURY ON THE QUESTION OF HIS SANITY DEPENDS IN THE
FIRST INSTANCE SOLELY ON THE WARDEN. 

AFTER ADJUDICATION OF INSANITY THE PETITIONER WAS TAKEN TO A STATE
HOSPITAL FOR THE INSANE IN COMPLIANCE WITH THE TRIAL COURT'S ORDER OF
COMMITMENT.  IN ACCORDANCE WITH SEC. 3704  FN5  THE WARDEN THEN
SUSPENDED THE DEATH SENTENCE AND DELIVERED CERTIFIED COPIES OF THE
COURT'S ORDER TO THE GOVERNOR AND TO THE MEDICAL SUPERINTENDENT OF THE
STATE HOSPITAL TO WHICH PETITIONER WAS SENT.  AS SEC. 3704 PROVIDES,
THE SUPERINTENDENT WAS DIRECTED THAT WHEN PETITIONER "RECOVERS HIS
REASON," THE SUPERINTENDENT "MUST CERTIFY THAT FACT" TO THE GOVERNOR,
WHO IS THEN REQUIRED TO ISSUE TO THE WARDEN HIS WARRANT APPOINTING A
DAY FOR THE EXECUTION OF THE JUDGMENT.  THE WARDEN THEN RETURNS THE
DEFENDANT TO THE STATE PRISON PENDING THE EXECUTION OF THE JUDGMENT. 
THIS COURSE WAS FOLLOWED WITH REFERENCE TO THE PETITIONER.  EIGHTEEN
DAYS AFTER HIS ADMISSION TO THE STATE HOSPITAL THE MEDICAL
SUPERINTENDENT CERTIFIED TO THE GOVERNOR THAT THE PETITIONER WAS THEN
SANE.  HE WAS RETURNED TO THE CUSTODY OF THE PRISON WARDEN, AND THE
GOVERNOR SET A NEW DATE FOR HIS EXECUTION. 

THE MEDICAL SUPERINTENDENT'S DETERMINATION OF PETITIONER'S SANITY WAS
BASED ON HIS OWN EX PARTE INVESTIGATION, NO NOTICE OR HEARINGS HAVING
BEEN AFFORDED PETITIONER OR ANY PERSON ON HIS BEHALF.  IT IS THUS CLEAR
THAT THE CALIFORNIA STATUTORY SCHEME HERE CHALLENGED PROVIDES NEITHER
AN ADMINISTRATIVE NOR A JUDICIAL HEARING AS A PREREQUISITE TO A
DETERMINATION THAT A CONDEMNED DEFENDANT JUDICIALLY ADJUDICATED TO BE
INSANE HAS BEEN RESTORED TO SANITY; ONE MAN IN AN EX PARTE
INVESTIGATION DECIDES THE QUESTION UPON WHICH HANGS THE DEFENDANT'S
LIFE, IN THE ABSENCE OF A LATER REQUEST BY THE PRISON WARDEN FOR A
JUDICIAL HEARING ON THE GROUND THAT THERE IS THEN "REASON TO BELIEVE"
THE DEFENDANT HAS BECOME INSANE. 

THE HOLDING OF THE STATE SUPREME COURT IN THE HABEAS CORPUS
PROCEEDING WAS: 

"THERE IS NO AUTHORITY  ...  FOR THE PROPOSITION THAT DEFENDANT HAS A
RIGHT TO HABEAS CORPUS OR OTHER JUDICIAL PROCEEDING TO DETERMINE THE
QUESTION OF HIS SANITY AFTER HIS RELEASE FROM THE STATE HOSPITAL.  IN
FACT, SECTION 3700 OF THE PENAL CODE  FN6  EXPRESSLY PROHIBITS SUCH A
PROCEEDING.  ONCE THE SUPERINTENDENT CERTIFIES THAT DEFENDANT IS SANE,
HE IS REMANDED TO THE CUSTODY OF THE WARDEN FOR EXECUTION AND 'NO
JUDGE, COURT OR OTHER OFFICER OTHER THAN THE GOVERNOR' CAN THEN SUSPEND
THE EXECUTION OF THE JUDGMENT, 'EXCEPT THE WARDEN OF THE STATE PRISON
TO WHOM HE IS DELIVERED.  ...  '"  IN RE PHYLE, 30 CAL.2D AT 842-843,
186 P.2D AT 137. 

FOR THE STATEMENTS IN ITS OPINION THAT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT CONFERRED NO RIGHT ON A CONDEMNED DEFENDANT TO ANY
KIND OF JUDICIAL ADJUDICATION OR REVIEW ON THE QUESTION OF SANITY, THE
STATE SUPREME COURT PRIMARILY RELIED ON NOBLES V. GEORGIA, 168 U.S.
398.  WE DO NOT THINK THAT EITHER THE ACTUAL HOLDING OR WHAT WAS SAID
IN THE OPINION IN THAT CASE WOULD NECESSARILY REQUIRE A REJECTION OF
THE CONTENTIONS MADE HERE AGAINST THE CALIFORNIA PROCEDURES. 

THE GEORGIA LAW UNDER SCRUTINY IN THE NOBLES CASE PROVIDED THAT THE
SANITY OF A PERSON PREVIOUSLY CONDEMNED TO DEATH SHOULD BE DETERMINED
BY A TRIBUNAL FORMED IN THE FOLLOWING MANNER: "THE SHERIFF OF THE
COUNTY, WITH THE CONCURRENCE AND ASSISTANCE OF THE ORDINARY THEREOF,
SHALL SUMMON A JURY OF TWELVE MEN TO INQUIRE INTO SUCH INSANITY  ...  "
IF THIS TRIBUNAL FOUND INSANITY THE SHERIFF WAS REQUIRED TO SUSPEND
EXECUTION OF SENTENCE AND REPORT HIS ACTION TO THE PRESIDING JUDGE. 
RESTORATION OF SANITY SO AS TO JUSTIFY EXECUTION WAS TO BE DETERMINED
BY THE PRESIDING JUDGE "BY INQUISITION OR OTHERWISE."  THUS "THE ONLY
QUESTION" IN THE NOBLES CASE, AS THE COURT THERE SAID, WAS "WHETHER
...  IN ORDER TO CONSTITUTE DUE PROCESS OF LAW" THE QUESTION OF
INSANITY OF A CONDEMNED DEFENDANT MUST "BE TRIED BY A JURY IN A
JUDICIAL PROCEEDING SURROUNDED BY ALL THE SAFEGUARDS AND REQUIREMENTS
OF A COMMON LAW JURY TRIAL, AND EVEN ALTHOUGH BY THE STATE LAW FULL AND
ADEQUATE ADMINISTRATIVE AND QUASI JUDICIAL PROCESS IS CREATED FOR THE
PURPOSE OF INVESTIGATING THE SUGGESTION."  P. 405.  THIS AGENCY FOR A
HEARING TO INQUIRE INTO THE PRISONER'S SANITY, COMPOSED AS IT WAS OF
SHERIFF, COUNTY JUDGE AND JURY, WAS REFERRED TO AS AN "APT AND SPECIAL
TRIBUNAL."  THERE IS PROVISION IN THE CALIFORNIA STATUTES FOR A HEARING
BEFORE A JUDGE AND JURY WHEN, BUT ONLY WHEN, THE WARDEN IS OF OPINION
THAT THERE "IS REASON TO BELIEVE" A DEFENDANT IS INSANE. 

THE NOBLES CASE DOES STAND FOR THE PROPOSITION THAT A CONDEMNED
DEFENDANT HAS NO "ABSOLUTE RIGHT" TO A HEARING ON THE QUESTION OF HIS
SANITY ON HIS MERE "SUGGESTION."  SUCH AN ABSOLUTE RIGHT, THIS COURT
THOUGHT, WOULD MAKE THE PUNISHMENT OF A DEFENDANT "DEPEND SOLELY UPON
HIS FECUNDITY IN MAKING SUGGESTION AFTER SUGGESTION OF INSANITY, TO BE
FOLLOWED BY TRIAL UPON TRIAL."  P. 406.  FOR THIS REASON, THE COURT IN
THE NOBLES OPINION CITED AND QUOTED FROM LEGAL COMMENTATORS AND FROM
JUDICIAL OPINIONS WHICH EMPHASIZED, AS THE OPINION IN THE NOBLES CASE
ITSELF EMPHASIZED, THE IMPORTANCE OF LEAVING TO THE "DISCRETION OF A
JUDGE" THE MOST APPROPRIATE PROCEDURE FOR DETERMINING THE SANITY OF A
DEFENDANT ALREADY SENTENCED TO DEATH.  IT WAS IN THIS CONNECTION THAT
THE COURT MADE THE STATEMENT IN THE NOBLES CASE UPON WHICH THE
CALIFORNIA SUPREME COURT PARTICULARLY RELIED, THAT "THE MANNER IN WHICH
SUCH QUESTION SHOULD BE DETERMINED WAS PURELY A MATTER OF LEGISLATIVE
REGULATION." 

READING THIS STATEMENT IN ITS CONTEXT AND IN RELATION TO THE GEORGIA
PROCEDURE, WE DO NOT UNDERSTAND THAT THE COURT IN THE NOBLES CASE
PASSED UPON THE QUESTION HERE URGED:  WHETHER A STATE WHICH BARS THE
EXECUTION OF INSANE PERSONS CAN SUBMIT TO A SINGLE INDIVIDUAL THIS
QUESTION, CRUCIAL TO LIFE, TO BE DECIDED BY THAT INDIVIDUAL EX PARTE,
WITH OR WITHOUT NOTICE AND HEARINGS AS THE INDIVIDUAL MAY CHOOSE, AND
WITHOUT ANY JUDICIAL SUPERVISION, CONTROL OR REVIEW WHATEVER.  THE
NOBLES CASE WE DO UNDERSTAND TO BE AN AUTHORITY FOR THE PRINCIPLE THAT
A CONDEMNED DEFENDANT CANNOT AUTOMATICALLY BLOCK EXECUTION BY
SUGGESTIONS OF INSANITY, AND THAT A STATE TRIBUNAL, PARTICULARLY A
JUDGE, MUST BE LEFT FREE TO EXERCISE A REASONABLE DISCRETION IN
DETERMINING WHETHER THE FACTS WARRANT A FULL INQUIRY AND HEARING UPON
THE SANITY OF A PERSON SENTENCED TO DEATH.  FN7 

WHAT HAS BEEN SAID PREVIOUSLY INDICATES THE GRAVITY OF THE QUESTIONS
HERE RAISED UNDER THE DUE PROCESS CLAUSE AS HERETOFORE CONSTRUED BY
THIS COURT, BOTH THE CONTENTION THAT EXECUTION OF AN INSANE MAN IS
OFFENSIVE TO THE FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE WHICH
LIE AT THE BASE OF ALL OUR CIVIL AND POLITICAL INSTITUTIONS, ADAMSON V.
CALIFORNIA, 332 U.S. 46; CARTER V. ILLINOIS, 329 U.S. 173, AND THE
DIFFERENT CONTENTION THAT LIFE SHALL NOT BE TAKEN BY A STATE AS THE
RESULT OF THE UNREVIEWABLE EX PARTE DETERMINATION OF A CRUCIAL FACT
MADE BY A SINGLE EXECUTIVE OFFICER.  SEE NG FUNG HO V. WHITE, 259 U.S.
276.  FN8  IT IS NOT APPROPRIATE FOR US TO PASS ON SUCH CONSTITUTIONAL
QUESTIONS IN THIS HABEAS CORPUS CASE IF, AS THE CALIFORNIA ATTORNEY
GENERAL CONTENDS, THERE IS A STATE REMEDY BY MANDAMUS AVAILABLE TO
PETITIONER UNDER WHICH HE CAN INVOKE JUDICIAL ACTION TO COMPEL THE
WARDEN TO INITIATE JUDICIAL PROCEEDINGS, AND IN WHICH MANDAMUS
PROCEEDINGS THE COURT WILL HEAR AND CONSIDER EVIDENCE TO DETERMINE
WHETHER THERE IS "REASON TO BELIEVE" THAT THE PETITIONER IS INSANE. 
NEW YORK EX REL. WHITMAN V. WILSON, WARDEN, 318 U.S. 688; WOODS V.
NIERSTHEIMER, 328 U.S. 211; CARTER V. ILLINOIS, 329 U.S. 173.  SEE ALSO
SIMON V. CRAFT, 182 U.S. 427, 437. 

THE STATE SUPREME COURT IN DENYING HABEAS CORPUS SAID THAT THE STATE
STATUTES MADE "NO PROVISION FOR A JUDICIAL DETERMINATION OF THE
QUESTION OF THE SANITY OF A DEFENDANT DELIVERED TO THE WARDEN OF A
STATE PRISON FOR EXECUTION EXCEPT AS SET FORTH IN" SEC. 3701.  THAT IS
THE SECTION WHICH REQUIRES A JUDICIAL INQUIRY WITH A COURT AND JURY
ONLY WHEN AND IF THE WARDEN CERTIFIES THAT "THERE IS GOOD REASON TO
BELIEVE" THAT A PERSON SENTENCED TO DEATH HAS "BECOME INSANE."  BUT IT
DOES NOT NECESSARILY FOLLOW FROM THE FACT THAT PETITIONER CANNOT OBTAIN
A FULL-FLEDGED JUDICIAL HEARING AS TO SANITY ON HIS OWN MOTION MADE
DIRECTLY TO A STATE COURT THAT HE IS WITHOUT SOME OTHER ADEQUATE STATE
REMEDY.  AND THE STATE ATTORNEY GENERAL ASSERTS HERE THAT THE
PETITIONER DOES HAVE AN "AMPLE REMEDY, IF THE FACTS SUPPORT HIM, BY
APPLICATION TO THE CALIFORNIA COURTS FOR A WRIT OF MANDAMUS" TO COMPEL
THE WARDEN TO INSTITUTE PROCEEDINGS UNDER SEC. 3701. 

THUS WE HAVE AN UNEQUIVOCAL DECLARATION BY THE STATE ATTORNEY GENERAL
THAT PETITIONER HAS NOT ATTEMPTED TO TAKE ADVANTAGE OF AN AVAILABLE
STATE REMEDY.  THE ATTORNEY GENERAL IS THE HIGHEST NON-JUDICIAL LEGAL
OFFICER OF CALIFORNIA, AND IS PARTICULARLY CHARGED WITH THE DUTY OF
SUPERVISING ADMINISTRATION OF THE CRIMINAL LAWS.  FN9  HIS STATEMENT ON
THIS QUESTION IS ENTITLED TO GREAT WEIGHT IN THE ABSENCE OF CONTROLLING
STATE STATUTES AND COURT DECISIONS.  FN10  NOR IS THERE ANYTHING IN THE
STATE SUPREME COURT'S OPINION IN THIS CASE THAT NEED BE CONSIDERED IN
CONFLICT WITH THE ATTORNEY GENERAL'S OPINION.  WHILE THAT COURT HELD
THAT THERE WAS NO STATUTORY PROVISION FOR PETITIONER TO OBTAIN A SANITY
HEARING EXCEPT THROUGH ACTION BY THE WARDEN AS PRESCRIBED IN SEC. 3701,
IT DID NOT HOLD OR EVEN CONSIDER WHETHER THERE WAS JUDICIAL POWER UNDER
STATE LAW TO COMPEL THE WARDEN TO DO HIS DUTY UNDER SEC. 3701.  IT DID
DECLARE, CLEARLY AND EMPHATICALLY, THAT THE STATUTE IMPOSED A MANDATORY
OBLIGATION ON THE WARDEN TO INITIATE JUDICIAL PROCEEDINGS IF THERE WAS
GOOD REASON TO BELIEVE A CONDEMNED DEFENDANT INSANE, AN OBLIGATION THAT
CONTINUED TO REST UPON THE WARDEN EVEN AFTER CERTIFICATION OF
RESTORATION TO SANITY BY THE MEDICAL SUPERINTENDENT.  THE SUPREME COURT
ALSO DECLARED THAT THIS DUTY WOULD CONTINUE UP TO THE VERY TIME OF
EXECUTION.  FAILURE OF THE WARDEN TO PERFORM THIS OBLIGATION, SO THE
COURT SAID, WOULD BE A "VIOLATION OF ...  SECTION 1367," WHICH SECTION
PROHIBITS EXECUTION OF AN INSANE MAN.  IN VIEW OF THIS MANDATORY
OBLIGATION UPON THE WARDEN TO INITIATE PROCEEDINGS IF "THERE IS GOOD
REASON TO BELIEVE" A DEFENDANT SENTENCED TO DEATH IS INSANE, IT WOULD
BE SOMEWHAT ANOMALOUS, TO SAY THE LEAST, IF CALIFORNIA COURTS WERE
WHOLLY WITHOUT POWER TO CORRECT AN EXECUTIVE AGENT'S ABUSE OF AUTHORITY
IN A MATTER OF SUCH GREAT SIGNIFICANCE AS THE EXECUTION OF INSANE
PERSONS. 

THE JURISDICTION OF CALIFORNIA COURTS TO ISSUE MANDAMUS HAS ITS
SOURCE IN ART. VI, SECS. 4, 4B, 5 OF THE STATE CONSTITUTION.  THE WRIT
CAN ISSUE TO ANY INFERIOR TRIBUNAL OR PERSON TO COMPEL AN ACT WHICH THE
LAW SPECIFICALLY ENJOINS.  CODE OF CIVIL PROCEDURE OF CALIFORNIA, SEC.
1085.  IT HAS BEEN HELD THAT THE WRIT MAY ISSUE AGAINST THE SECRETARY
OF STATE, HUTCHINSON V. BROWN, 122 CAL. 189, 54 P. 738, OR EVEN AGAINST
THE GOVERNOR.  ELLIOTT V. PARDEE, GOVERNOR, 149 CAL. 516, 520, 86 P.
1087, 1089. 

PETITIONER CONTENDS, HOWEVER, THAT MANDAMUS WOULD NOT BE AVAILABLE
UNDER CALIFORNIA LAW IF THERE IS ANOTHER ADEQUATE REMEDY, SEE KAHN V.
SMITH, 23 CAL.2D 12, 142 P.2D 13, THAT HERE HABEAS CORPUS IS AVAILABLE,
AND HENCE MANDAMUS IS NOT.  THIS CONTENTION IS FULLY ANSWERED BY THE
STATE SUPREME COURT'S OPINION IN THIS CASE, HOLDING THAT NEITHER HABEAS
CORPUS NOR ANY OTHER REMEDY IS AVAILABLE TO TEST SANITY OF A CONDEMNED
DEFENDANT, EXCEPT THAT REMEDY UNDER SEC. 3701 WHICH ONLY THE WARDEN CAN
INSTITUTE.  HENCE, SO FAR AS IT HERE APPEARS, MANDAMUS TO COMPEL ACTION
BY THE WARDEN IS THE ONLY AVAILABLE REMEDY. 

PETITIONER CONTENDS THAT THIS REMEDY IS INADEQUATE BECAUSE UNDER
CALIFORNIA LAW NO RELIEF COULD BE HOPED FOR IN A MANDAMUS PROCEEDING
WITHOUT A SHOWING THAT THE WARDEN'S NON-ACTION WAS ARBITRARY AND
CAPRICIOUS.  WE CANNOT KNOW, OF COURSE, JUST WHAT PRECISE STANDARDS THE
STATE SUPREME COURT MAY HOLD MUST BE MET BY PETITIONER IN ORDER TO
OBTAIN THE JUDICIAL INQUIRY PROVIDED IN SEC. 3701.  WE ARE PERSUADED BY
THE ATTORNEY GENERAL'S STATEMENTS AND BRIEF, AND BY THE STATE
CONSTITUTION, STATE STATUTES, AND STATE DECISIONS TO WHICH HE REFERRED,
THAT MANDAMUS IS PROBABLY AVAILABLE, AND THAT IN A MANDAMUS PROCEEDING
SOME ISSUES OF FACT CONCERNING PETITIONER'S SANITY CAN BE DRAWN BY THE
PARTIES, RESOLVED BY THE COURTS, AND PROVIDE SUPPORT FOR RELIEF. 
DIFFERENT LANGUAGE HAS BEEN USED IN DIFFERENT OPINIONS CONCERNING THE
CONDITIONS UPON WHICH THE WRIT WILL ISSUE IN CALIFORNIA.  ALTHOUGH IT
HAS BEEN SAID THAT GENERALLY THE WRIT WILL ISSUE ONLY TO CORRECT AN
ABUSE OF DISCRETION, BANK OF ITALY V. JOHNSON, 200 CAL. 1, 31-33, 251
P. 784, 795-796 AND CASES CITED, IT HAS ALSO BEEN POINTED OUT THAT IN
SOME CIRCUMSTANCES WRITS CAN ISSUE TO COMPEL ACTION IN A PARTICULAR
WAY.  WOOD V. STROTHER, 76 CAL. 545, 549, 18 P. 766, 769; LANDSBOROUGH
V. KELLY, 1 CAL.2D 739, 744, 37 P.2D 93, 95. 

IN CONSIDERING WHAT THE ISSUES MAY BE IN A MANDAMUS PROCEEDING, IT
MUST BE BORNE IN MIND THAT THE WARDEN IS UNDER A MANDATORY DUTY TO
INITIATE JUDICIAL PROCEEDINGS, NOT WHEN A DEFENDANT IS INSANE, BUT WHEN
"THERE IS GOOD REASON TO BELIEVE" HE IS INSANE.  WE CANNOT SAY AT THIS
TIME THAT CALIFORNIA'S REMEDY BY MANDAMUS WILL BE LESS THAN A
SUBSTANTIAL EQUIVALENT  FN11  OF ONE WHICH AUTHORIZED HIM TO APPLY
DIRECTLY TO A COURT FOR A FULL HEARING.  FOR THIS COURT HELD IN NOBLES
V. GEORGIA, SUPRA, THAT IN THE ABSENCE OF SUFFICIENT REASONS FOR
HOLDING A FULL HEARING INTO THE SANITY OF A DEFENDANT SENTENCED TO
DEATH, A STATE JUDGE MAY DENY SUCH A HEARING CONSISTENTLY WITH DUE
PROCESS.  AS PREVIOUSLY POINTED OUT, THE DECISION IN THE NOBLES CASE
EMPHASIZED THAT DUE PROCESS OF LAW HAD NEVER NECESSARILY ENVISIONED A
FULL COURT HEARING EVERY TIME THE INSANITY OF A CONDEMNED DEFENDANT WAS
SUGGESTED.  APPLICATIONS FOR INQUIRIES INTO SANITY MADE BY A DEFENDANT
SENTENCED TO DEATH, UNSUPPORTED BY FACTS, AND BUTTRESSED BY NO GOOD
REASONS FOR BELIEVING THAT THE DEFENDANT HAS LOST HIS SANITY, CANNOT,
WITH ANY APPROPRIATE REGARD FOR SOCIETY AND FOR THE JUDICIAL PROCESS,
CALL FOR THE DELAYS IN EXECUTION INCIDENT TO FULL JUDICIAL INQUIRY. 
AND A COURT CAN JUST AS SATISFACTORILY DETERMINE BY MANDAMUS AS BY
DIRECT APPLICATION WHETHER THERE ARE GOOD REASONS TO HAVE A FULL
FLEDGED JUDICIAL INQUIRY INTO A DEFENDANT'S SANITY. 

IN THIS SITUATION WE FIND NO FEDERAL CONSTITUTIONAL QUESTION
PRESENTED WHICH IS RIPE FOR DECISION HERE.  SO HERE, AS IN WOODS V.
NIERSTHEIMER, SUPRA, BEING UNABLE TO SAY THAT THE JUDGMENT DENYING
HABEAS CORPUS MAY NOT REST ON AN ADEQUATE NON-FEDERAL GROUND, THE WRIT
OF CERTIORARI DISMISSED. 

FN1  THE OPINION OF THE STATE SUPREME COURT AFFIRMING PETITIONER'S
SENTENCE SHOWS:  UPON ARRAIGNMENT IN THE SUPERIOR COURT COUNSEL WAS
APPOINTED FOR PETITIONER AT HIS REQUEST.  HIS PLEAS WERE "NOT GUILTY"
AND "NOT GUILTY BY REASON OF INSANITY."  LATER PETITIONER INFORMED HIS
COUNSEL THAT HE WISHED TO WITHDRAW THESE PLEAS AND ENTER A PLEA OF
GUILTY.  THE TRIAL JUDGE THEN EXAMINED PETITIONER AT LENGTH, SATISFIED
HIMSELF THAT THE CHANGE OF PLEA WAS VOLUNTARILY ENTERED BY PETITIONER
WITH FULL KNOWLEDGE OF HIS LEGAL RIGHTS, AND THEN ACCEPTED IT.
EVIDENCE WAS THEN TAKEN BY THE COURT TO DETERMINE THE DEGREE OF THE
MURDER AND TO FIX THE PUNISHMENT.  TWO PHYSICIANS APPOINTED BY THE
COURT TESTIFIED THAT IN THEIR JUDGMENT PETITIONER WAS SANE.  OTHER
WITNESSES TESTIFIED TO THE FACTS OF THE CRIME.  THE MURDER WAS
COMMITTED BY PETITIONER WHILE HE WAS IN THE ACT OF PERPETRATING A
ROBBERY.  DURING THE ENTIRE PROCEEDINGS, SO THE STATE SUPREME COURT
FOUND FROM THE RECORD, THE APPOINTED COUNSEL PARTICIPATED AND
REPRESENTED PETITIONER "WITH FIDELITY AND PROFICIENCY."  PEOPLE V.
PHYLE, 28 CAL.2D 671, 171 P.2D 428. 

FN2  "3701.  INSANITY OF DEFENDANT, HOW DETERMINED.  IF, AFTER HIS
DELIVERY TO THE WARDEN FOR EXECUTION, THERE IS GOOD REASON TO BELIEVE
THAT A DEFENDANT, UNDER JUDGMENT OF DEATH, HAS BECOME INSANE, THE
WARDEN MUST CALL SUCH FACT TO THE ATTENTION OF THE DISTRICT ATTORNEY OF
THE COUNTY IN WHICH THE PRISON IS SITUATED, WHOSE DUTY IT IS TO
IMMEDIATELY FILE IN THE SUPERIOR COURT OF SUCH COUNTY A PETITION,
STATING THE CONVICTION AND JUDGMENT, AND THE FACT THAT THE DEFENDANT IS
BELIEVED TO BE INSANE, AND ASKING THAT THE QUESTION OF HIS SANITY BE
INQUIRED INTO.  THEREUPON THE COURT MUST AT ONCE CAUSE TO BE SUMMONED
AND IMPANELED, FROM THE REGULAR JURY LIST OF THE COUNTY, A JURY OF
TWELVE PERSONS TO HEAR SUCH INQUIRY." 

FN3  "3702.  DUTY OF DISTRICT ATTORNEY UPON HEARING.  THE DISTRICT
ATTORNEY MUST ATTEND THE HEARING, AND MAY PRODUCE WITNESSES BEFORE THE
JURY, FOR WHICH PURPOSE HE MAY ISSUE PROCESS IN THE SAME MANNER AS FOR
WITNESSES TO ATTEND BEFORE THE GRAND JURY, AND DISOBEDIENCE THERETO MAY
BE PUNISHED IN LIKE MANNER AS DISOBEDIENCE TO PROCESS ISSUED BY THE
COURT." 

FN4  "3703.  CONVICT FOUND INSANE.  THE VERDICT OF THE JURY MUST BE
ENTERED UPON THE MINUTES, AND THEREUPON THE COURT MUST MAKE AND CAUSE
TO BE ENTERED AN ORDER RECITING THE FACT OF SUCH INQUIRY AND THE RESULT
THEREOF, AND WHEN IT IS FOUND THAT THE DEFENDANT IS INSANE, THE ORDER
MUST DIRECT THAT HE BE TAKEN TO A STATE HOSPITAL FOR THE INSANE, AND
THERE KEPT IN SAFE CONFINEMENT UNTIL HIS REASON IS RESTORED." 

FN5  "3704.  CONVICT FOUND SANE:  DUTIES OF WARDEN.  IF IT IS FOUND
THAT THE DEFENDANT IS SANE, THE WARDEN MUST PROCEED TO EXECUTE THE
JUDGMENT AS SPECIFIED IN THE WARRANT; IF IT IS FOUND THAT THE DEFENDANT
IS INSANE, THE WARDEN MUST SUSPEND THE EXECUTION AND TRANSMIT A
CERTIFIED COPY OF THE ORDER MENTIONED IN THE LAST SECTION TO THE
GOVERNOR AND DELIVER THE DEFENDANT, TOGETHER WITH A CERTIFIED COPY OF
SUCH ORDER, TO THE MEDICAL SUPERINTENDENT OF THE HOSPITAL NAMED IN SUCH
ORDER.  WHEN THE DEFENDANT RECOVERS HIS REASON, THE SUPERINTENDENT OF
SUCH HOSPITAL MUST CERTIFY THAT FACT TO THE GOVERNOR, WHO MUST
THEREUPON ISSUE TO THE WARDEN HIS WARRANT APPOINTING A DAY FOR THE
EXECUTION OF THE JUDGMENT, AND THE WARDEN SHALL THEREUPON RETURN THE
DEFENDANT TO THE STATE PRISON PENDING THE EXECUTION OF THE JUDGMENT." 

FN6  "3700.  GOVERNOR MAY SUSPEND.  NO JUDGE, COURT, OR OFFICER,
OTHER THAN THE GOVERNOR, CAN SUSPEND THE EXECUTION OF A JUDGMENT OF
DEATH, EXCEPT THE WARDEN OF THE STATE PRISON TO WHOM HE IS DELIVERED
FOR EXECUTION, AS PROVIDED IN THE SIX SUCCEEDING SECTIONS, UNLESS AS
APPEAL IS TAKEN. 

FN7  SEE CASES COLLECTED IN 49 A.L.R. 804, ET SEQ. 

FN8  SEE ALSO YICK WO V. HOPKINS, 118 U.S. 356, 369-370; REGAL DRUG
CORP. V. WARDELL, 260 U.S. 386, 392; DUNCAN V. KAHANAMOKU, 327 U.S.
304, 322; DENT V. WEST VIRGINIA, 129 U.S. 114, 123-124; BROWN V. NEW
JERSEY, 175 U.S. 172, 176; ST. JOSEPH STOCK YARDS CO. V. UNITED STATES,
298 U.S. 38, 49-54, AND CONCURRING OPINION, BRANDEIS, J., AT 76-78. 
CF. UNITED STATES V. JU TOY, 198 U.S. 253, 263; SIMON V. CRAFT, 182
U.S. 427, 436. 

FN9  CALIFORNIA GOVERNMENT CODE SECS. 12510-12512, 12519, 12550
12553. 

FN10  SEE UNION INS. CO. V. HOGE, 21 HOW.  35, 66; FOX V. STANDARD
OIL CO., 294 U.S. 87, 96; DRISCOLL V. EDISON CO., 307 U.S. 104, 115. 

FN11  SEE EDISON CO. V. LABOR BOARD, 305 U.S. 197, 234; OPP COTTON
MILLS, INC. V. ADMINISTRATOR, 312 U.S. 126, 152-153. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE
MURPHY, AND MR. JUSTICE RUTLEDGE JOIN, CONCURRING. 

WHERE LIFE IS AT STAKE ONE CANNOT BE TOO CAREFUL.  I'S HAD BETTER BE
DOTTED AND T'S CROSSED.  AND SO I DEEM IT PROPER TO STATE MY
UNDERSTANDING OF THE OPINION OF THE COURT, ON THE BASIS OF WHICH I
CONCUR IN IT. 

WE GRANTED CERTIORARI TO REVIEW A DECISION OF THE SUPREME COURT OF
CALIFORNIA WHICH DISMISSED HABEAS CORPUS PROCEEDINGS BROUGHT IN THAT
COURT.  WE DID SO ON THE ASSUMPTION THAT THE CASE RAISED QUESTIONS
UNDER THE FOURTEENTH AMENDMENT - MORE PARTICULARLY, WHETHER AN
UNREVIEWABLE DETERMINATION BY THE SUPERINTENDENT OF A STATE HOSPITAL,
THAT ONE CONVICTED OF MURDER AND FOUND TO HAVE BECOME INSANE AFTER
CONVICTION HAD BEEN RESTORED TO SANITY AND THEREFORE WAS SUBJECT TO
EXECUTION, WAS CONSISTENT WITH THE DUE PROCESS WHICH THE FOURTEENTH
AMENDMENT SECURES.  THE COURT NOW FINDS THAT ALL THAT THE CALIFORNIA
SUPREME COURT DID WAS TO HOLD THAT AS A MATTER OF CALIFORNIA PROCEDURE
THE PETITIONER'S CLAIM COULD NOT BE PASSED ON BY THE DIRECT REMEDY OF
HABEAS CORPUS, BUT THAT THERE IS AVAILABLE A SPECIAL LOCAL REMEDY,
LABELED MANDAMUS, WHEREBY THE PETITIONER CAN JUDICIALLY TEST HIS
PRESENT SANITY.  IN SHORT, THE COURT DISMISSES THE WRIT OF CERTIORARI
BECAUSE THE DECISION OF THE COURT BELOW RESTS ON A PURELY STATE GROUND
IN THAT THERE IS A STATE REMEDY AVAILABLE, WHICH HAS NOT BEEN PURSUED,
BY MEANS OF WHICH HE CAN SECURE THE RIGHTS HE CLAIMS UNDER THE UNITED
STATES CONSTITUTION. 

OF COURSE I RECOGNIZE THE WEIGHT TO BE ATTACHED TO THE ATTORNEY
GENERAL'S VIEWS REGARDING THE LAW OF CALIFORNIA.  BUT THE CONTROLLING
VOICE ON CALIFORNIA LAW IS THAT OF THE SUPREME COURT OF CALIFORNIA. 
WHATEVER MAY BE THE ELEGANCIES OF PROCEDURE BY WHICH THE MATTER IS TO
BE DETERMINED, OUR DECISION DECLINING TO CONSIDER THE GRAVE
CONSTITUTIONAL ISSUES WHICH WE THOUGHT WE HAD BEFORE US, IS CONTINGENT
UPON A DETERMINATION BY THE SUPREME COURT OF CALIFORNIA THAT THE LAW OF
THAT STATE IS WHAT OUR DECISION PRESUPPOSES IT TO BE, NAMELY, THAT
CALIFORNIA BY A REMEDY WHICH CALIFORNIA CHOOSES TO CALL MANDAMUS
ENABLES THE PRESENT PETITIONER TO SECURE A JUDICIAL DETERMINATION OF
HIS PRESENT SANITY.  THIS MEANS, OF COURSE, NOT THE VERY RESTRICTED
SCOPE OF RELIEF WHICH IS NORMALLY ASSOCIATED WITH THE TRADITIONAL
REMEDY OF MANDAMUS.  IT PRESUPPOSES THAT CALIFORNIA AFFORDS PETITIONER
THE MEANS OF CHALLENGING IN A SUBSTANTIAL WAY THE EX PARTE FINDING OF
THE SUPERINTENDENT OF THE STATE HOSPITAL FOR THE INSANE AND ENABLES HIM
TO SECURE JUDICIAL DETERMINATION OF THE CLAIMS HE HAS MADE IN HIS
PETITION FOR HABEAS CORPUS WHICH, SO THE COURT NOW HOLDS, IS NOT THE
PROPER WAY TO PROCEED. 

UPON THIS VIEW I CONCUR IN THE DECISION AND OPINION OF THE COURT. 
..END :















BAY RIDGE CO. V. AARON, 334 U.S. 446 


ARGUED JANUARY 12, 1948.  - DECIDED JUNE 7, 1948.  - 162 F.2D 665,
MODIFIED AND AFFIRMED. 


A COLLECTIVE BARGAINING AGREEMENT BETWEEN A LONGSHOREMEN'S UNION AND
EMPLOYERS, AFFECTING EMPLOYMENT IN INTERSTATE AND FOREIGN COMMERCE,
PROVIDED FOR "STRAIGHT TIME" HOURLY RATES FOR WORK DONE DURING CERTAIN
DAYTIME HOURS ON WEEKDAYS AND "OVERTIME RATES," APPROXIMATELY 150% OF
"STRAIGHT TIME" RATES, FOR WORK DONE DURING ALL OTHER HOURS AND ON
SUNDAYS AND HOLIDAYS.  IT MADE NO PROVISION FOR A DIFFERENTIAL IN PAY
FOR WORK IN EXCESS OF 40 HOURS PER WEEK.  LONGSHOREMEN WORK IRREGULAR
HOURS AND FREQUENTLY WORK FOR SEVERAL DIFFERENT EMPLOYERS DURING A
SINGLE WEEK.  RESPONDENT LONGSHOREMEN, SOME OF WHOM HAD WORKED ONLY
OUTSIDE "STRAIGHT TIME" PERIODS AND HAD BEEN PAID "OVERTIME RATES,"
SUED TO RECOVER ADDITIONAL OVERTIME COMPENSATION ALLEGEDLY DUE THEM
UNDER THE FAIR LABOR STANDARDS ACT FOR WORK IN EXCESS OF 40 HOURS PER
WEEK.  HELD: 

1.  THE "STRAIGHT TIME" RATE PROVIDED FOR BY THE AGREEMENT DOES NOT
CONSTITUTE THE "REGULAR RATE" WHICH SEC. 7(A) OF THE FAIR LABOR
STANDARDS ACT REQUIRES TO BE USED IN COMPUTING THE STATUTORY MINIMUM
PAYMENT ("NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE") FOR
WORK IN EXCESS OF 40 HOURS.  PP. 459-477. 

2.  WALLING V. BELO CORP., 316 U.S. 624, DISTINGUISHED.  PP. 462
463. 

3.  CONTRACT DECLARATIONS, EVEN THOUGH THE RESULT OF COLLECTIVE
BARGAINING, ARE NOT CONCLUSIVE AS TO WHAT IS THE "REGULAR RATE" WITHIN
THE MEANING OF SEC. 7(A).  PP. 463-464. 

4.  DETERMINATION OF THE "REGULAR RATE" FOR EACH INDIVIDUAL MUST BE
DRAWN FROM WHAT HAPPENS UNDER THE EMPLOYMENT CONTRACT.  P. 464. 

5.  THE "REGULAR RATE" IS TO BE FOUND BY DIVIDING THE NUMBER OF HOURS
WORKED INTO THE TOTAL WEEKLY COMPENSATION RECEIVED, LESS THE AMOUNT OF
ANY "OVERTIME PREMIUM."  PP. 464-465. 

6.  "OVERTIME PREMIUM," DEDUCTIBLE FROM TOTAL COMPENSATION RECEIVED
IN COMPUTING THE "REGULAR RATE," IS ANY ADDITIONAL SUM RECEIVED BY AN
EMPLOYEE FOR WORK BECAUSE OF PREVIOUS WORK FOR A SPECIFIED NUMBER OF
HOURS IN THE WORKWEEK OR WORKDAY, WHETHER THE HOURS ARE SPECIFIED BY
CONTRACT OR STATUTE.  PP. 450, N. 3, 465-471. 

7.  WHERE AN EMPLOYEE RECEIVES A HIGHER WAGE OR RATE BECAUSE OF
UNDESIRABLE HOURS OR DISAGREEABLE WORK, SUCH WAGE REPRESENTS A SHIFT
DIFFERENTIAL RATHER THAN AN OVERTIME PREMIUM, AND MUST ENTER INTO THE
DETERMINATION OF THE "REGULAR RATE" OF PAY.  THE EXTRA PAY PROVIDED IN
"OVERTIME" RATES UNDER THE AGREEMENT IN THIS CASE REPRESENTS A SHIFT
DIFFERENTIAL AND NOT AN OVERTIME PREMIUM.  PP. 466-471. 

8.  THE FACT THAT THE CONTRACT "OVERTIME" RATES WERE DESIGNED TO
CONCENTRATE THE WORK OF THE LONGSHOREMEN IN THE STRAIGHT TIME HOURS IS
IRRELEVANT TO THE DETERMINATION OF THE RESPONDENTS' "REGULAR RATE" OF
PAY.  P. 470. 

9.  THE PURPOSE OF THE OVERTIME COMPENSATION REQUIREMENT OF SEC. 7(A)
IS NOT ONLY TO SPREAD EMPLOYMENT BUT ALSO TO COMPENSATE AN EMPLOYEE IN
A SPECIFIC MANNER FOR THE STRAIN OF WORKING LONGER THAN 40 HOURS.  P.
470. 

10.  IT IS UNNECESSARY IN THIS CASE TO DETERMINE WHAT WERE
RESPONDENTS'"REGULAR WORKING HOURS," SINCE REGULAR WORKING HOURS UNDER
A CONTRACT, EVEN FOR AN INDIVIDUAL, HAVE NO SIGNIFICANCE IN DETERMINING
THE RATE OF PAY UNDER THE STATUTE.  PP. 471-474. 

11.  SINCE THE SO-CALLED "OVERTIME" RATES PAID UNDER THE CONTRACT IN
THIS CASE ACTUALLY REPRESENTED A SHIFT DIFFERENTIAL AND HAD NO RELATION
TO THE NUMBER OF HOURS PREVIOUSLY WORKED DURING THE WEEK, THEIR PAYMENT
DID NOT MEET THE REQUIREMENTS OF SEC. 7 OF THE FAIR LABOR STANDARDS
ACT.  PP. 474-476. 

12.  EACH RESPONDENT IS ENTITLED TO RECEIVE COMPENSATION FOR HIS
HOURS WORKED IN EXCESS OF 40 AT 1 1/2 TIMES HIS REGULAR RATE, COMPUTED
AS THE WEIGHTED AVERAGE OF THE RATES WORKED DURING THE WEEK.  P. 476. 

13.  IN COMPUTING THE AMOUNT TO BE PAID, THE EMPLOYER MAY CREDIT
AGAINST THE OBLIGATION TO PAY STATUTORY EXCESS COMPENSATION THE AMOUNT
ALREADY PAID TO EACH RESPONDENT WHICH IS ALLOCABLE TO WORK IN THOSE
EXCESS HOURS.  THE PRECISE METHOD OF COMPUTING THIS CREDIT AND FINDING
THE EXACT AMOUNT DUE RESPONDENTS IS LEFT TO THE DISTRICT COURT ON
REMAND.  PP. 476-477. 

14.  ON REMAND, THE DISTRICT COURT MAY CONSIDER ANY DEFENSE WHICH THE
EMPLOYERS MAY HAVE UNDER THE PORTAL-TO-PORTAL ACT, AND MAY ALLOW ANY
AMENDMENTS TO THE COMPLAINT OR ANSWER OR ANY FURTHER EVIDENCE WHICH THE
COURT MAY DEEM JUST.  P. 477. 

BAY RIDGE OPERATING CO., INC. V. AARON ET AL. 

NO. 366.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT* . 

*TOGETHER WITH NO. 367, HURON STEVEDORING CORP. V. BLUE ET AL., ALSO
ON CERTIORARI TO THE SAME COURT. 

RESPONDENTS SUED PETITIONERS TO RECOVER UNPAID OVERTIME COMPENSATION
ALLEGEDLY DUE UNDER THE FAIR LABOR STANDARDS ACT.  TO THE EXTENT THAT
THE JUDGMENT OF THE DISTRICT COURT WAS ADVERSE, 69 F.SUPP.  956,
RESPONDENTS APPEALED AND THE CIRCUIT COURT OF APPEALS REVERSED.  162
F.2D 665.  THIS COURT GRANTED CERTIORARI.  332 U.S. 814.  MODIFIED AND
AFFIRMED, P. 477. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT ANOTHER ASPECT OF THE PERPLEXING PROBLEM OF WHAT
CONSTITUTES THE REGULAR RATE OF PAY WHICH THE FAIR LABOR STANDARDS ACT
REQUIRES TO BE USED IN COMPUTING THE PROPER PAYMENT FOR WORK IN EXCESS
OF FORTY HOURS.  THE APPLICABLE PROVISIONS READ AS FOLLOWS: 

"SEC. 7.  (A)  NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED IN
THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR
IN THE PRODUCTION OF GOODS FOR COMMERCE - 

     .       .         .         .         . 

(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, 

UNLESS SUCH EMPLOYEE RECEIVES COMPENSATION FOR HIS EMPLOYMENT IN
EXCESS OF THE HOURS ABOVE SPECIFIED AT A RATE NOT LESS THAN ONE AND ONE
HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED."  FN1 

THE PROBLEM POSED IS THE METHOD OF COMPUTING THE REGULAR RATE OF PAY
FOR LONGSHOREMEN WHO WORK IN FOREIGN AND INTERSTATE COMMERCE VARYING
AND IRREGULAR HOURS THROUGHOUT THE WORKWEEK UNDER A COLLECTIVE
BARGAINING AGREEMENT FOR HANDLING CARGO WHICH PROVIDES CONTRACT
STRAIGHT TIME HOURLY RATES FOR WORK DONE WITHIN A PRESCRIBED 44-HOUR
TIME SCHEDULE AND CONTRACT OVERTIME RATES FOR ALL WORK DONE OUTSIDE THE
STRAIGHT TIME HOURS.  FN2 

THESE TWO SUITS WERE BROUGHT AS CLASS ACTIONS ON BEHALF OF ALL
LONGSHOREMEN EMPLOYED BY TWO STEVEDORING COMPANIES, BAY RIDGE OPERATING
CO., AND HURON STEVEDORING CORP., TO RECOVER UNPAID STATUTORY EXCESS
COMPENSATION  FN3  IN ACCORDANCE WITH SEC. 16(B) OF THE FAIR LABOR
STANDARDS ACT.  FN4  BY STIPULATION THE CLAIMS OF TEN SPECIFIC
LONGSHOREMEN IN EACH CASE WERE SEVERED AND THE TWO SUITS WERE
CONSOLIDATED FOR TRIAL, LEAVING THE CLAIMS OF THE OTHER PLAINTIFFS
PENDING ON THE DOCKET.  THE CLAIMS OF THE PLAINTIFFS HERE ARE FOR THE
PERIOD OCTOBER 1, 1943, TO SEPTEMBER 30, 1945. 

THE TERMS OF EMPLOYMENT FOR THE RESPONDENTS, LONGSHOREMEN WORKING IN
THE PORT OF NEW YORK, WERE FIXED FOR THE PERIOD IN QUESTION BY THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE INTERNATIONAL LONGSHOREMENS
ASSOCIATION AND THE NEW YORK SHIPPING ASSOCIATION TOGETHER WITH CERTAIN
STEAMSHIP AND STEVEDORE COMPANIES.  IT WAS APPLICABLE TO THE TWO
PETITIONERS.  THE AGREEMENT ESTABLISHED A "BASIC WORKING DAY" OF EIGHT
HOURS AND A "BASIC WORKING WEEK," THAT IS, WORKWEEK, OF FORTY-FOUR
HOURS; HOURLY RATES FOR DIFFERENT TYPES OF CARGO WERE SPECIFIED FOR
WORK BETWEEN 8 A.M. AND 12 NOON AND BETWEEN 1 P.M. AND 5 P.M. DURING
FIVE WORKING DAYS OF THE WEEK, MONDAY THROUGH FRIDAY, AND FROM 8 A.M.
TO 12 NOON ON SATURDAY, AND A DIFFERENT SCHEDULE OF RATES FOR WORK
DURING ALL OTHER HOURS IN THE WORKWEEK.  THE FIRST SCHEDULE WAS CALLED
"STRAIGHT TIME" RATES, AND THE SECOND SCHEDULE WAS ENTITLED "OVERTIME"
RATES.  THIS OPINION DESIGNATES THESE RATES AS CONTRACT STRAIGHT TIME
AND CONTRACT OVERTIME.  FOR FOUR TYPES OF CARGO THE OVERTIME RATES WERE
EXACTLY ONE AND A HALF TIMES THE STRAIGHT TIME RATES; FOR FOUR OTHER
TYPES THE OVERTIME RATES WERE SLIGHTLY LESS THAN ONE AND A HALF TIMES
THE STRAIGHT TIME RATES.  THE CONTRACT STRAIGHT TIME RATES RANGED FROM
$1.25 TO $2.50 AN HOUR.  THE CONTRACT OVERTIME RATES WERE PAID FOR ALL
WORK ON SUNDAYS AND LEGAL HOLIDAYS.  THE CONTRACT PROVIDED FOR NO
DIFFERENTIAL FOR WORK IN EXCESS OF FORTY HOURS IN A WEEK.  FN5 

RESPONDENTS CLAIM THAT THEIR REGULAR RATE OF PAY UNDER THE CONTRACT
FOR ANY WORKWEEK, WITHIN THE MEANING OF SEC. 7(A), IS THE AVERAGE
HOURLY RATE COMPUTED BY DIVIDING THE TOTAL NUMBER OF HOURS WORKED IN
ANY WORKWEEK FOR ANY SINGLE EMPLOYER INTO THE TOTAL COMPENSATION
RECEIVED FROM THAT EMPLOYER DURING THAT WEEK; AND THAT IN THOSE
WORKWEEKS WEEKS IN WHICH THEY WORKED MORE THAN FORTY HOURS FOR ANY ONE
EMPLOYER THEY WERE ENTITLED BY SEC. 7(A) TO STATUTORY EXCESS
COMPENSATION FOR ALL SUCH EXCESS HOURS COMPUTED ON THE BASIS OF THAT
RATE.  THE PETITIONERS CLAIM THAT THE STRAIGHT TIME RATES ARE THE
REGULAR RATES, AND THAT THEY HAVE, THEREFORE, WITH MINOR EXCEPTIONS NOT
PRESENTED BY THIS REVIEW, COMPLIED WITH THE REQUIREMENTS OF SEC. 7(A). 
THAT IS, NO RATES EXCEPT STRAIGHT TIME RATES ARE TO BE TAKEN INTO
CONSIDERATION IN COMPUTING THE REGULAR RATE.  THE PETITIONERS CONTEND
THAT THE CONTRACT OVERTIME RATES WERE INTENDED TO COVER ANY EARNED
STATUTORY EXCESS COMPENSATION AND DID COVER IT BECAUSE THEY WERE
SUBSTANTIALLY IN AN AMOUNT OF ONE AND ONE-HALF TIMES THE STRAIGHT TIME
RATES.  THE DISTRICT COURT HELD THAT THE CONTRACT STRAIGHT TIME RATES
WERE THE REGULAR RATES BUT THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT HELD OTHERWISE.  FN6 

THROUGHOUT ALL THESE PROCEEDINGS THE PETITIONERS HAVE BEEN
REPRESENTED BY THE DEPARTMENT OF JUSTICE, SINCE THE UNITED STATES UNDER
ITS COST-PLUS CONTRACTS WITH THE PETITIONERS IS THE REAL PARTY IN
INTEREST.  SUBSTANTIALLY ALL STEVEDORING DURING THE WAR YEARS WAS
PERFORMED FOR THE ACCOUNT OF THE UNITED STATES.  THE SOLICITOR GENERAL
NOTES THAT PRIOR TO THE DECISION IN THE CIRCUIT COURT OF APPEALS, 118
SUITS HAD BEEN INSTITUTED ON BEHALF OF LONGSHOREMEN, AND SINCE THAT
TIME APPROXIMATELY 100 NEW COMPLAINTS HAVE BEEN FILED.  CONTRACTS OF
THE SAME GENERAL TYPE ARE SAID TO HAVE BEEN IN EFFECT IN ALL OUR
MARITIME AREAS.  WITNESSES TESTIFYING BEFORE THE WAGES AND HOURS
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON EDUCATION AND LABOR STATED THAT
LIABILITY OF THE GOVERNMENT UNDER SUCH SUITS WOULD BE LARGE.  FN7  THE
WAGE AND HOUR ADMINISTRATOR HAS NOT FILED A BRIEF IN THE PROCEEDINGS,
BUT THE SOLICITOR GENERAL HAS ADVISED US THAT THE ADMINISTRATOR OF THE
WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR "BELIEVES THAT PROPER
CONSIDERATION WAS GIVEN BY THE COURT BELOW TO HIS INTERPRETATION OF
IS CORRECT."  THE ADMINISTRATOR AND THE SOLICITOR OF THE DEPARTMENT OF
LABOR TESTIFIED AT LENGTH BEFORE THE HOUSE COMMITTEE AS TO THEIR VIEWS
ON THE ISSUES PRESENTED BY THESE CASES.  FN8  AMICUS BRIEFS HAVE BEEN
FILED BY THE INTERNATIONAL LONGSHOREMENS ASSOCIATION, THE NATIONAL
ASSOCIATION OF MANUFACTURERS, AND THE WATERFRONT EMPLOYERS ASSOCIATION
OF THE PACIFIC COAST, ALL URGING THAT THE DECISION BELOW BE REVERSED. 

IN ORDER TO FIX THE LEGAL ISSUES IN THEIR FACTUAL SETTING, WE
SUMMARIZE THE FINDINGS OF FACT MADE BY THE DISTRICT COURT WHICH WERE
ACCEPTED BY THE CIRCUIT COURT OF APPEALS AND ARE NOT CHALLENGED HERE. 
MOST OF THESE FINDINGS REFERRED TO IN THIS OPINION WILL BE FOUND IN THE
APPENDIX AT 162 F.2D 670.  EMPLOYMENT IN THE LONGSHORE INDUSTRY HAS
ALWAYS BEEN CASUAL IN NATURE.  THE AMOUNT OF WORK AVAILABLE DEPENDS ON
THE NUMBER OF SHIPS IN PORT AND THEIR LENGTH OF STAY AND IS
CONSEQUENTLY HIGHLY VARIABLE AND UNPREDICTABLE, FROM DAY TO DAY, WEEK
TO WEEK, AND SEASON TO SEASON.  LONGSHOREMEN ARE HIRED FOR A SPECIFIC
JOB AT THE "SHAPE,"  FN9  WHICH IS NORMALLY HELD THREE TIMES A DAY AT
EACH PIER WHERE WORK IS AVAILABLE.  THE HIRING STEVEDORE SELECTS THE
MEN HE DESIRES FROM THE LONGSHOREMEN WHO ARE PRESENT AT THE "SHAPE"; IN
SOME INSTANCES A GROUP OF LONGSHOREMEN ARE HIRED TOGETHER AS A GANG. 
THE WORK MAY LAST ONLY FOR A FEW HOURS OR FOR AS LONG AS A WEEK. 
ALTHOUGH SOME WORK IS CARRIED ON AT ALL HOURS, THE STEVEDORING
COMPANIES, SINCE OPERATIONS ARE THEN CARRIED ON AT LESS COST, ATTEMPT
TO DO AS MUCH WORK AS POSSIBLE DURING THE STRAIGHT TIME HOURS. 

THE COURT FURTHER FOUND THAT THE RATE FOR NIGHT WORK AND HOLIDAY WORK
HAD BEEN HIGHER THAN THE RATE FOR DAY WORK SINCE AT LEAST AS FAR BACK
AS 1887, AND THAT SINCE 1916, WHEN THE FIRST AGREEMENT WAS MADE WITH
THE INTERNATIONAL LONGSHOREMENS ASSOCIATION, THE DIFFERENTIAL HAD BEEN
APPROXIMATELY 50%.  JOSEPH B. RYAN, PRESIDENT OF THE ASSOCIATION,
TESTIFIED THAT THE DIFFERENTIAL WAS DESIGNED TO SHORTEN THE TOTAL
NUMBER OF HOURS WORKED AND TO CONFINE THE WORK AS FAR AS POSSIBLE
WITHIN THE SCHEDULED FORTY-FOUR HOURS.  DESPITE THE DIFFERENTIAL, MANY
LONGSHOREMEN WERE UNWILLING TO WORK AT NIGHT.  ALTHOUGH SOME LONGSHORE
WORK WAS REQUIRED AT ALL HOURS, EXCEPT SATURDAY NIGHT, THE DISTRICT
COURT FOUND THAT THE DIFFERENTIAL HAD BEEN RESPONSIBLE FOR THE HIGH
DEGREE OF CONCENTRATION OF LONGSHORE WORK TO THE CONTRACT STRAIGHT TIME
HOURS. 

THE GOVERNMENT INTRODUCED ELABORATE STATISTICAL STUDIES TO SHOW THE
DISTRIBUTION OF WORK AS BETWEEN THE CONTRACT STRAIGHT TIME AND CONTRACT
OVERTIME HOURS.  FROM 1932 TO 1937, 80% OF THE TOTAL HOURS WORKED WERE
WITHIN THE CONTRACT STRAIGHT TIME HOURS AND ONLY 2 1/2% OF THE TOTAL
MANHOURS WERE PERFORMED BY MEN WORKING BETWEEN 5 P.M. AND 8 A.M.
(EXCLUSIVE OF SUNDAYS AND HOLIDAYS) WHO HAD WORKED NO STRAIGHT TIME
HOURS EARLIER THAT DAY.  DURING THE WAR, THE PROPORTION OF WORK IN
CONTRACT OVERTIME HOURS WAS CONSIDERABLY HIGHER BECAUSE OF THE GREATER
VOLUME OF CARGO HANDLED; 55% OF THE TOTAL HOURS FELL WITHIN THE
CONTRACT STRAIGHT TIME HOURS, AND THE RATIO OF WORK IN CONTRACT
OVERTIME HOURS BY MEN WHO HAD NOT PREVIOUSLY WORKED IN THE CONTRACT
STRAIGHT TIME HOURS WAS CORRESPONDINGLY HIGHER.  THE RESPONDENTS'
EMPLOYMENT WAS HIGHLY IRREGULAR; IN MANY WEEKS THE RESPONDENTS DID NOT
WORK AT ALL, AND IN WEEKS IN WHICH THEY DID WORK THEIR HOURS OF
EMPLOYMENT VARIED OVER A WIDE RANGE.  THE TRIAL COURT CONCLUDED THAT
THE "BASIC WORKING DAY" AND "BASIC WORKING WEEK,"  FN10  MEANING BY
THESE PHRASES THE CONTRACT STRAIGHT TIME HOURS, WERE NOT THE PERIODS
"NORMALLY, REGULARLY OR USUALLY" WORKED BY THE RESPONDENTS.  FINDING
45. 

IN GIVING JUDGMENT FOR THE PETITIONERS, THE TRIAL COURT PLACED
EMPHASIS ON THE FACT THAT THE RATES IN QUESTION WERE ARRIVED AT THROUGH
BONA FIDE COLLECTIVE BARGAINING, AND WERE MORE FAVORABLE TO THE
LONGSHOREMEN THAN THE STATUTORY MANDATE REQUIRED.  THAT IS, THAT RATES
AS HIGH AS CONTRACT STRAIGHT TIME RATES PLUS STATUTORY EXCESS
COMPENSATION WERE PAID TO ALL WORKERS FOR ALL WORK IN CONTRACT OVERTIME
HOURS WHETHER REQUIRED BY SEC. 7(A) OR NOT.  THE DISTRICT COURT OPINION
REFERRED TO JOSEPH B. RYAN'S STATEMENT THAT THE INTERNATIONAL
LONGSHOREMENS ASSOCIATION WAS OPPOSED TO THE SUIT "AS IT MIGHT WIPE OUT
ALL OF THE GAINS WE HAD MADE FOR OUR MEN OVER A PERIOD OF 25 YEARS." 
FN11  IT REJECTED RESPONDENTS' ALTERNATIVE CONTENTIONS THAT THE REGULAR
RATE WAS TO BE DETERMINED BY THE AVERAGE RATE DURING THE FIRST FORTY
HOURS OR BY THE AVERAGE RATE FOR ALL HOURS WORKED.  IT NOTED THAT SHIFT
DIFFERENTIALS WERE USUALLY FIVE OR TEN CENTS AN HOUR AND SELDOM
EXCEEDED FIFTEEN CENTS AND WERE NOT DESIGNED TO DETER THE EMPLOYER FROM
WORKING EMPLOYEES DURING THE PERIOD FOR WHICH THE DIFFERENTIAL WAS
PAID; IN THE PRESENT CASE THE TRIAL JUDGE FOUND THAT THE 50%
DIFFERENTIAL WAS DESIGNED TO DETER AND ACTUALLY DID DETER WORK OUTSIDE
CONTRACT STRAIGHT TIME HOURS.  ACCORDINGLY THE TRIAL COURT CONCLUDED
THAT THE "COLLECTIVELY BARGAINED AGREEMENT ESTABLISHED A REGULAR RATE"
UNDER THE FAIR LABOR STANDARDS ACT - THE CONTRACT STRAIGHT TIME RATE. 
69 F.SUPP.  956, 961. 

THE CIRCUIT COURT OF APPEALS HELD THAT THE REGULAR RATE MUST BE
DETERMINED AS AN "ACTUAL FACT" AND COULD NOT BE ARRANGED THROUGH A
COLLECTIVE BARGAINING AGREEMENT, CITING 149 MADISON AVE. CORP. V.
ASSELTA, 331 U.S. 199.  THAT COURT THEREFORE CONCLUDED THAT ON THE
BASIS OF THE FINDINGS BELOW THE REGULAR RATE MUST BE COMPUTED BY
DIVIDING THE TOTAL NUMBER OF HOURS WORKED INTO THE TOTAL COMPENSATION
RECEIVED.  THE COURT REJECTED THE CONTENTION THAT THE REGULAR RATE WAS
THE AVERAGE RATE FOR THE FIRST FORTY HOURS OF WORK, CITING WALLING V.
HALLIBURTON OIL WELL CEMENTING CO., 331 U.S. 17.  THE JUDGMENT OF THE
DISTRICT COURT WAS REVERSED WITH DIRECTIONS TO DETERMINE THE AMOUNTS
DUE PLAINTIFFS IN THE LIGHT OF THE PORTAL-TO-PORTAL ACT OF 1947, 61
STAT. 84.  NO DETERMINATION OF THE SCOPE OR VALIDITY OF THAT ACT WAS
ATTEMPTED AS THOSE MATTERS HAD NOT BEEN ARGUED.  162 F.2D 665, 673. 

ON ACCOUNT OF THE IMPORTANCE OF THE METHOD OF COMPUTING THE REGULAR
RATE OF PAY IN EMPLOYMENT CONTRACTS PROVIDING FOR EXTRA PAY, WE GRANTED
CERTIORARI.  FN12  332 U.S. 814. 

THE GOVERNMENT ADOPTS THE VIEW OF THE DISTRICT COURT THAT THE
CONTRACT STRAIGHT TIME RATES CONSTITUTED THE REGULAR RATES WITHIN THE
MEANING OF SEC. 7(A) OF THE FAIR LABOR STANDARDS ACT.  THE GOVERNMENT
ACCEPTS, TOO, THE REASONING OF THE DISTRICT COURT THAT THE CONTRACT
OVERTIME RATES, AS THEY WERE COERCIVE IN THE SENSE THAT THEY WERE
INTENDED TO EXERT PRESSURE ON EMPLOYERS TO CARRY ON THEIR ACTIVITIES IN
THE STRAIGHT TIME HOURS, WERE NOT REGULAR RATES AND COULD BE CREDITED
AGAINST REQUIRED STATUTORY EXCESS COMPENSATION IN THE AMOUNT THAT THE
CONTRACT OVERTIME RATES EXCEEDED THE CONTRACT STRAIGHT TIME RATES.  THE
GOVERNMENT ARGUES IN THE ALTERNATIVE THAT THE "NORMAL, NON-OVERTIME
WORKWEEK," SAID TO BE THE HOURS CONTROLLING THE REGULAR RATE OF PAY, IS
TO BE DETERMINED BY REFERENCE TO PEACETIME CONDITIONS, RATHER THAN THE
ABNORMAL WARTIME CONDITIONS, AND THAT THE STATISTICAL STUDIES SHOW THAT
THE WORK OF LONGSHOREMEN IS SUFFICIENTLY CONCENTRATED WITHIN THE
SCHEDULED HOURS TO COMPEL THE FINDING THAT THE CONTRACT STRAIGHT TIME
HOURS ARE THE REGULAR WORKING HOURS.  THE GOVERNMENT URGES ALSO THAT
THE CONTRACT, AS THUS INTERPRETED, ACCORDS WITH CONGRESSIONAL PURPOSES
IN ENACTING THE FAIR LABOR STANDARDS ACT.  IT IS SAID TO REDUCE WORKING
HOURS AND SPREAD EMPLOYMENT AND TO PRESERVE THE INTEGRITY OF COLLECTIVE
BARGAINING.    WE AGREE WITH THE CONCLUSION REACHED BY THE CIRCUIT
COURT OF APPEALS.  LATER IN THIS OPINION, PP. 465-471, WE SET OUT OUR
REASONS FOR CONCLUDING THAT THE EXTRA PAY FOR CONTRACT OVERTIME HOURS
IS NOT AN OVERTIME PREMIUM.  WHERE THERE ARE NO OVERTIME PREMIUM
PAYMENTS THE RULE FOR DETERMINING THE REGULAR RATE OF PAY IS TO DIVIDE
THE WAGES ACTUALLY PAID BY THE HOURS ACTUALLY WORKED IN ANY WORKWEEK
AND ADJUDGE ADDITIONAL PAYMENT TO EACH INDIVIDUAL ON THAT BASIS FOR
TIME IN EXCESS OF FORTY HOURS WORKED FOR A SINGLE EMPLOYER.  ANY
STATUTORY EXCESS COMPENSATION SO FOUND IS OF COURSE SUBJECT TO
ENLARGEMENT UNDER THE PROVISIONS OF SEC. 16(B).  COMPARE SEC. 11 OF
PORTAL-TO-PORTAL ACT OF 1947.  THIS DETERMINATION, WE THINK, ACCORDS
WITH THE STATUTE AND THE TERMS OF THE CONTRACT. 

(1)  THE STATUTE, SEC. 7(A), EXPRESSES THE INTENTION OF CONGRESS "TO
REQUIRE EXTRA PAY FOR OVERTIME WORK BY THOSE COVERED BY THE ACT EVEN
THOUGH THEIR HOURLY WAGES EXCEEDED THE STATUTORY MINIMUM."  THE PURPOSE
WAS TO COMPENSATE THOSE WHO LABORED IN EXCESS OF THE STATUTORY MAXIMUM
NUMBER OF HOURS FOR THE WEAR AND TEAR OF EXTRA WORK AND TO SPREAD
EMPLOYMENT THROUGH INDUCING EMPLOYERS TO SHORTEN HOURS BECAUSE OF THE
PRESSURE OF EXTRA COST.  FN13  THE STATUTE BY ITS TERMS PROTECTS THE
GROUP OF EMPLOYEES BY PROTECTING EACH INDIVIDUAL EMPLOYEE FROM OVERLY
LONG HOURS.  SO ALTHOUGH ONLY ONE OF A THOUSAND WORKS MORE THAN FORTY
HOURS, THAT ONE IS ENTITLED TO STATUTORY EXCESS COMPENSATION.  THAT
EXCESS COMPENSATION IS FIXED BY SEC. 7(A) "AT ONE AND ONE-HALF TIMES
THE REGULAR RATE AT WHICH HE IS EMPLOYED."  THE REGULAR RATE OF PAY OF
THE RESPONDENTS UNDER THIS CONTRACT MUST THEREFORE BE FOUND. 

THE STATUTE CONTAINS NO DEFINITION OF REGULAR RATE OF PAY AND NO RULE
FOR ITS DETERMINATION.  CONTRACTS FOR PAY TAKE MANY FORMS.  THE RATE OF
PAY MAY BE BY THE HOUR, BY PIECEWORK, BY THE WEEK, MONTH OR YEAR, AND
WITH OR WITHOUT A GUARANTEE THAT EARNINGS FOR A PERIOD OF TIME SHALL BE
AT LEAST A STATED SUM.  THE REGULAR RATE MAY VARY FROM WEEK TO WEEK. 
OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, 580; WALLING V. BELO
CORP., 316 U.S. 624, 632.  THE EMPLOYEE'S HOURS MAY BE REGULAR OR
IRREGULAR.  FROM ALL SUCH WAGES THE REGULAR HOURLY RATE MUST BE
EXTRACTED.  AS NO AUTHORITY WAS GIVEN ANY AGENCY TO ESTABLISH
REGULATIONS, COURTS MUST APPLY THE STATUTE TO THIS SITUATION WITHOUT
THE BENEFIT OF BINDING INTERPRETATIONS WITHIN THE SCOPE OF THE ACT BY
AN ADMINISTRATIVE AGENCY.  FN14 

EVERY CONTRACT OF EMPLOYMENT, WRITTEN OR ORAL, EXPLICITLY OR
IMPLICITLY INCLUDES A REGULAR RATE OF PAY FOR THE PERSON EMPLOYED. 
WALLING V. BELO CORP., SUPRA, 631; WALLING V. HALLIBURTON OIL WELL
CEMENTING CO., SUPRA.  WE HAVE SAID THAT "THE WORDS 'REGULAR RATE'  ...
OBVIOUSLY MEAN THE HOURLY RATE ACTUALLY PAID FOR THE NORMAL, NON
OVERTIME WORKWEEK."  WALLING V. HELMERICH & PAYNE, 323 U.S. 37, 40. 
SEE UNITED STATES V. ROSENWASSER, 323 U.S. 360, 363.  "WAGE DIVIDED BY
HOURS EQUALS REGULAR RATE."  OVERNIGHT MOTOR CO. V. MISSEL, SUPRA,
580.  "THE REGULAR RATE BY ITS VERY NATURE MUST REFLECT ALL PAYMENTS
WHICH THE PARTIES HAVE AGREED SHALL BE RECEIVED REGULARLY DURING THE
WORKWEEK, EXCLUSIVE OF OVERTIME PAYMENTS.  IT IS NOT AN ARBITRARY LABEL
CHOSEN BY THE PARTIES; IT IS AN ACTUAL FACT.  ONCE THE PARTIES HAVE
DECIDED UPON THE AMOUNT OF WAGES AND THE MODE OF PAYMENT THE
DETERMINATION OF THE REGULAR RATE BECOMES A MATTER OF MATHEMATICAL
COMPUTATION, THE RESULT OF WHICH IS UNAFFECTED BY ANY DESIGNATION OF A
CONTRARY 'REGULAR RATE' IN THE WAGE CONTRACTS."  WALLING V. YOUNGERMAN
REYNOLDS HARDWOOD CO., 325 U.S. 419, 424-25.  THE RESULT IS AN "ACTUAL
FACT."  149 MADISON AVE. CORP. V. ASSELTA, SUPRA, 204. 

IN DEALING WITH SUCH A COMPLEX SITUATION AS WAGES THROUGHOUT NATIONAL
INDUSTRY, CONGRESS NECESSARILY HAD TO RELY UPON JUDICIAL OR
ADMINISTRATIVE APPLICATION OF ITS STANDARDS IN APPLYING SANCTIONS TO
INDIVIDUAL SITUATIONS.  THESE STANDARDS HAD TO BE EXPRESSED IN WORDS OF
GENERALITY.  THE POSSIBLE CONTRACT VARIATIONS WERE UNFORESEEABLE.  IN
WALLING V. BELO CORP., SUPRA, 634, THIS COURT REFRAINED FROM RIGIDLY
DEFINING "REGULAR RATE" IN A GUARANTEED WEEKLY WAGE CONTRACT THAT MET
THE STATUTORY REQUIREMENTS OF SEC. 7(A) FOR MINIMUM COMPENSATION.  IN
THE BELO CASE THE CONTRACT CALLED FOR A REGULAR OR BASIC RATE OF PAY
ABOVE THE STATUTORY MINIMUM AND A GUARANTEED WEEKLY WAGE OF 60 TIMES
THAT AMOUNT.  AS THE HOURLY RATE WAS KEPT LOW IN RELATION TO THE
GUARANTEED WAGE, STATUTORY OVERTIME PLUS THE CONTRACT HOURLY RATE DID
NOT AMOUNT TO THE GUARANTEED WEEKLY WAGE UNTIL AFTER 54 1/2 HOURS WERE
WORKED.  P. 628.  WE REFUSED TO REQUIRE DIVISION OF THE WEEKLY WAGE
ACTUALLY PAID BY THE HOURS ACTUALLY WORKED TO FIND THE "REGULAR RATE"
OF PAY AND LEFT ITS DETERMINATION TO AGREEMENT OF THE PARTIES.  WHERE
THE SAME TYPE OF GUARANTEED WEEKLY WAGES WERE INVOLVED, WE HAVE
REAFFIRMED THAT DECISION AS A NARROW PRECEDENT PRINCIPALLY BECAUSE OF
PUBLIC RELIANCE UPON AND CONGRESSIONAL ACCEPTANCE OF THE RULE THERE
ANNOUNCED.  WALLING V. HALLIBURTON CO., SUPRA.  ASIDE FROM THIS
LIMITATION OF BELO, THE CASE ITSELF IS NOT A PRECEDENT FOR THESE CASES
AS IN BELO THE STATUTORY REQUIREMENTS OF MINIMUM WAGES AND STATUTORY
EXCESS COMPENSATION WERE PROVIDED BY THE BELO CONTRACT.  IN THESE
PRESENT CASES NO PROVISION HAS BEEN MADE FOR ANY STATUTORY EXCESS
COMPENSATION AND NONE CAN BE EARNED BY ANY RESPONDENT BASED ON THE
CONTRACT OVERTIME PAY.  OUR ASSENT TO THE BELO DECISION, MOREOVER, DOES
NOT IMPLY THAT MERE WORDS IN A CONTRACT CAN FIX THE REGULAR RATE.  FN15
THAT WOULD NOT BE THE MAINTENANCE OF A FLEXIBLE DEFINITION OF REGULAR
RATE BUT A REFUSAL TO APPLY A STATUTORY REQUIREMENT FOR PROTECTING
WORKERS AGAINST EXCESSIVE HOURS.  THE RESULTS ON THE INDIVIDUAL OF THE
OPERATIONS UNDER THE CONTRACT MUST BE TESTED BY THE STATUTE.  FN16  AS
CONGRESS LEFT THE REGULAR RATE OF PAY UNDEFINED, WE FEEL SURE THE
PURPOSE WAS TO REQUIRE JUDICIAL DETERMINATION AS TO WHETHER IN FACT AN
EMPLOYEE RECEIVES THE FULL STATUTORY EXCESS COMPENSATION, RATHER THAN
TO IMPOSE A RULE THAT IN THE ABSENCE OF FRAUD OR CLEAR EVASION
EMPLOYERS AND EMPLOYEES MIGHT FIX A REGULAR RATE WITHOUT REGARD TO
HOURS WORKED OR SUMS ACTUALLY RECEIVED AS PAY. 

FURTHER, WE REJECT THE ARGUMENT THAT UNDER THE STATUTE AN AGREEMENT
REACHED OR ADMINISTERED THROUGH COLLECTIVE BARGAINING IS MORE
PERSUASIVE IN DEFINING REGULAR RATE THAN INDIVIDUAL CONTRACTS. 
ALTHOUGH OUR PUBLIC POLICY RECOGNIZES THE EFFECTIVENESS OF COLLECTIVE
BARGAINING AND ENCOURAGES ITS USE,  FN17  NOTHING TO OUR KNOWLEDGE IN
ANY ACT AUTHORIZES US TO GIVE DECISIVE WEIGHT TO CONTRACT DECLARATIONS
AS TO THE REGULAR RATE BECAUSE THEY ARE THE RESULT OF COLLECTIVE
BARGAINING.  149 MADISON AVE. CORP. V. ASSELTA, SUPRA, 202 AND 204;
WALLING V. HARNISCHFEGER CORP., 325 U.S. 427, 432.  FN18  A VIGOROUS
ARGUMENT IS PRESENTED FOR PETITIONERS BY THE INTERNATIONAL
LONGSHOREMENS ASSOCIATION THAT A COLLECTIVELY OBTAINED AND ADMINISTERED
AGREEMENT SHOULD BE EFFECTIVE IN DETERMINING THE REGULAR RATE OF PAY
FN19  BUT WE THINK THE WORDS OF AND PRACTICES UNDER THE CONTRACT ARE
THE DETERMINATIVE FACTORS IN FINDING THE REGULAR RATE FOR EACH
INDIVIDUAL. 

AS THE REGULAR RATE OF PAY CANNOT BE LEFT TO A DECLARATION BY THE
PARTIES AS TO WHAT IS TO BE TREATED AS THE REGULAR RATE FOR AN
EMPLOYEE, IT MUST BE DRAWN FROM WHAT HAPPENS UNDER THE EMPLOYMENT
CONTRACT.  WE THINK THE MOST REASONABLE CONCLUSION IS THAT CONGRESS
INTENDED THE REGULAR RATE OF PAY TO BE FOUND BY DIVIDING THE WEEKLY
COMPENSATION BY THE HOURS WORKED UNLESS THE COMPENSATION PAID TO THE
EMPLOYEE CONTAINS SOME AMOUNT THAT REPRESENTS AN OVERTIME PREMIUM.  IF
SUCH OVERTIME PREMIUM IS INCLUDED IN THE WEEKLY PAY CHECK THAT MUST BE
DEDUCTED BEFORE THE DIVISION.  THIS DEDUCTION OF OVERTIME PREMIUM FROM
THE PAY FOR THE WORKWEEK RESULTS FROM THE LANGUAGE OF THE STATUTE. 
WHEN THE STATUTE SAYS THAT THE EMPLOYEE SHALL RECEIVE FOR HIS EXCESS
HOURS ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED,
IT IS CLEAR TO US THAT CONGRESS INTENDED TO EXCLUDE OVERTIME PREMIUM
PAYMENTS FROM THE COMPUTATION OF THE REGULAR RATE OF PAY.  TO PERMIT
OVERTIME PREMIUM TO ENTER INTO THE COMPUTATION OF THE REGULAR RATE
WOULD BE TO ALLOW OVERTIME PREMIUM ON OVERTIME PREMIUM - A PYRAMIDING
THAT CONGRESS COULD NOT HAVE INTENDED.  IN ORDER TO AVOID A SIMILAR
DOUBLE PAYMENT, WE THINK THAT ANY OVERTIME PREMIUM PAID, EVEN IF FOR
WORK DURING THE FIRST FORTY HOURS OF THE WORKWEEK, MAY BE CREDITED
AGAINST ANY OBLIGATION TO PAY STATUTORY EXCESS COMPENSATION.  THESE
CONCLUSIONS ACCORD WITH THOSE OF THE ADMINISTRATOR.  FN20 

THE DEFINITION OF OVERTIME PREMIUM THUS BECOMES CRUCIAL IN
DETERMINING THE REGULAR RATE OF PAY.  WE NEED NOT PAUSE TO
DIFFERENTIATE THE SITUATIONS THAT HAVE BEEN DESCRIBED BY THE WORD
"OVERTIME."  FN21  SOMETIMES IT IS USED TO DENOTE WORK AFTER REGULAR
HOURS, SOMETIMES WORK AFTER HOURS FIXED BY CONTRACT AT LESS THAN THE
STATUTORY MAXIMUM HOURS AND SOMETIMES HOURS OUTSIDE OF A SPECIFIED
CLOCK PATTERN WITHOUT REGARD TO WHETHER PREVIOUS WORK HAS BEEN DONE,
E.G., WORK ON SUNDAYS OR HOLIDAYS.  IT IS NOT A WORD OF ART. SEE
PREMIUM PAY PROVISIONS IN SELECTED UNION AGREEMENTS, MONTHLY LABOR
REVIEW, U.S. DEPARTMENT OF LABOR, OCTOBER 1947, VOL. 65, NO. 4. 
OVERTIME PREMIUM HAS BEEN USED IN THIS OPINION AS DEFINED IN NOTE 3. 
IT IS THAT EXTRA PAY FOR WORK BECAUSE OF PREVIOUS WORK FOR A SPECIFIED
NUMBER OF HOURS IN THE WORKWEEK OR WORKDAY.  IT IS EXTRA PAY OF THAT
KIND WHICH WE THINK THAT CONGRESS INTENDED SHOULD BE EXCLUDED FROM
COMPUTATION OF REGULAR PAY.  OTHERWISE THE PURPOSE OF THE STATUTE TO
REQUIRE PAYMENT TO AN EMPLOYEE FOR EXCESS HOURS IS EXPANDED
EXTRAVAGANTLY BY COMPUTING REGULAR RATE OF PAY UPON A PAYMENT ALREADY
MADE FOR THE SAME PURPOSE FOR WHICH SEC. 7(A) REQUIRES EXTRA PAY, TO
WIT, EXTRA PAY BECAUSE OF EXCESS WORKING HOURS.  ACCORDINGLY, STATUTORY
EXCESS COMPENSATION PAID FOR WORK IN EXCESS OF FORTY HOURS SHOULD NOT
BE USED TO FIGURE THE REGULAR RATE.  NEITHER SHOULD SIMILAR CONTRACT
EXCESS COMPENSATION FOR WORK BECAUSE OF PRIOR WORK BE USED IN SUCH A
CALCULATION.  EXTRA PAY BY CONTRACT BECAUSE OF LONGER HOURS THAN THE
STANDARD FIXED BY THE CONTRACT FOR THE DAY OR WEEK HAS THE SAME PURPOSE
AS STATUTORY EXCESS COMPENSATION AND MUST LIKEWISE BE EXCLUDED.  FN22
UNDER THE DEFINITION, A MERE HIGHER RATE PAID AS A JOB DIFFERENTIAL OR
AS A SHIFT DIFFERENTIAL, OR FOR SUNDAY OR HOLIDAY WORK, IS NOT AN
OVERTIME PREMIUM.  IT IS IMMATERIAL IN DETERMINING THE CHARACTER OF THE
EXTRA PAY THAT AN EMPLOYEE ACTUALLY HAS WORKED AT A LOWER RATE EARLIER
IN THE WORKWEEK PRIOR TO THE RECEIPT OF THE HIGHER RATE.  THE HIGHER
RATE MUST BE PAID BECAUSE OF THE HOURS PREVIOUSLY WORKED FOR THE EXTRA
PAY TO BE AN OVERTIME PREMIUM. 

THE TRIAL COURT REFUSED TO ACCEPT THE RESPONDENTS' CONTENTION THAT
THE CONTRACT OVERTIME RATE WAS A SHIFT DIFFERENTIAL, PARTLY BECAUSE IT
WAS FELT THAT SUCH A HOLDING WOULD HAVE A DISRUPTIVE EFFECT ON NATIONAL
ECONOMY.  69 F.SUPP.  958-59.  WE USE AS EXAMPLES THREE ILLUSTRATIONS
EMPLOYED BY THE DISTRICT COURT TO ILLUSTRATE ITS UNDERSTANDING OF THE
EFFECT OF RESPONDENTS' CONTENTIONS TO EMPLOYMENT SITUATIONS.  THAT
COURT THOUGHT THESE ILLUSTRATIONS INDICATED ADDITIONAL LIABILITY FROM
THE EMPLOYER UNDER SEC. 7(A).  FN23  WE DO NOT AGREE.  OUR CONCLUSIONS
AS TO THE TRIAL COURT'S ILLUSTRATIONS VARY FROM THOSE OF THE TRIAL
COURT BECAUSE THAT COURT DID NOT DEDUCT OVERTIME PREMIUMS, AS WE HAVE
DEFINED THEM, ACTUALLY PAID FROM THE WEEKLY WAGE BEFORE DIVIDING BY THE
HOURS WORKED.  SEE QUOTATION FROM WALLING V. YOUNGERMAN-REYNOLDS
HARDWOOD CO., SUPRA, AT P. 461 OF THIS OPINION.  (1) THE EMPLOYMENT
CONTRACT CALLS FOR AN OVERTIME PREMIUM FOR WORK BEYOND THIRTY-SIX
HOURS.  SUCH EXTRA PAY SHOULD NOT BE INCLUDED AS WEEKLY WAGES IN ANY
COMPUTATION OF THE REGULAR RATE AT WHICH A MAN WORKS.  FN24  (2) A
CONTRACT PROVIDES FOR PAYMENT OF TIME AND A HALF FOR WORK IN EXCESS OF
EIGHT HOURS IN A SINGLE WORKDAY.  AN EMPLOYEE WHO WORKS FIVE TEN-HOUR
DAYS WOULD HAVE NO CLAIM FOR STATUTORY EXCESS COMPENSATION IF PAID THE
AMOUNT DUE BY THE CONTRACT.  FN25  OR (3) A CONTRACT PROVIDES FOR A
RATE OF $1 AN HOUR FOR THE FIRST 40 HOURS AND $1.50 FOR ALL EXCESS
HOURS; AN EMPLOYEE WORKS 48 HOURS AND RECEIVES $52.  TO FIND HIS
REGULAR RATE OF PAY, THE OVERTIME PREMIUM OF $4 SHOULD BE DEDUCTED AND
THE RESULTING SUM DIVIDED BY 48 HOURS.  FN26  ON THE OTHER HAND, A MAN
MIGHT BE EMPLOYED AS A NIGHT WATCHMAN ON AN EIGHT-HOUR SHIFT AT TIME
AND A HALF THE WAGE RATE OF DAY WATCHMEN.  THIS WOULD BE EXTRA PAY FOR
UNDESIRABLE HOURS.  IT IS A SHIFT DIFFERENTIAL.  IT WOULD NOT BE
OVERTIME PREMIUM PAY BUT WOULD BE INCLUDED IN THE COMPUTATION FOR
DETERMINING OVERTIME PREMIUM FOR ANY EXCESS HOURS.  FN27 

WHERE AN EMPLOYEE RECEIVES A HIGHER WAGE OR RATE BECAUSE OF
UNDESIRABLE HOURS OR DISAGREEABLE WORK, SUCH WAGE REPRESENTS A SHIFT
DIFFERENTIAL OR HIGHER WAGES BECAUSE OF THE CHARACTER OF WORK DONE OR
THE TIME AT WHICH HE IS REQUIRED TO LABOR RATHER THAN AN OVERTIME
PREMIUM.  FN28  SUCH PAYMENTS ENTER INTO THE DETERMINATION OF THE
REGULAR RATE OF PAY.  SEE CABUNAC V. NATIONAL TERMINALS CORP., 139 F.2D
853.    THE TRIAL COURT SEEMED TO ASSUME THAT IF THE CONTRACT OVERTIME
RATE WERE A SHIFT DIFFERENTIAL, THE EMPLOYEE WHO WORKED ON A HIGHER
PAID SHIFT WOULD BE ENTITLED TO HAVE HIS HIGHER SHIFT RATES ENTER INTO
THE COMPUTATION OF REGULAR RATE OF PAY.  ONE OF THE REASONS FOR NOT
ALLOWING THE CONTRACT OVERTIME RATES IN THE COMPUTATION OF REGULAR RATE
OF PAY WAS THAT IT THOUGHT THE GREAT DIFFERENCE BETWEEN THE CONTRACT
STRAIGHT TIME AND CONTRACT OVERTIME RATES SHOWED THAT THE PREMIUM PAID
BY CONTRACT WAS NOT A SHIFT DIFFERENTIAL BUT A TRUE OVERTIME PREMIUM. 
IN THIS WE THINK THE TRIAL COURT ERRED.  THE SIZE OF THE SHIFT
DIFFERENTIAL CANNOT CHANGE THE FACT THAT LARGE WAGES WERE PAID FOR WORK
IN UNDESIRABLE HOURS.  IT IS LIKE A DIFFERENTIAL FOR DANGEROUS WORK. 
THIS CONTRACT CALLED FOR $2.50 STRAIGHT TIME HOURLY RATE FOR HANDLING
EXPLOSIVES.  THE STATUTORY EXCESS COMPENSATION WOULD, OF COURSE, BE
$3.75 PER HOUR.  IF AN EMPLOYEE RECEIVES FROM HIS EMPLOYER A HIGH
HOURLY RATE OF PAY FOR HARD OR DISAGREEABLE DUTY, HE IS ENTITLED TO THE
STATUTORY EXCESS COMPENSATION FIGURED ON HIS ACTUAL PAY. 

NOR DO WE FIND THE DISTRICT COURT'S RELIANCE UPON THE FACT THAT THE
OVERTIME RATES WERE EMPLOYED IN ORDER TO CONCENTRATE THE WORK OF THE
LONGSHOREMEN IN THE STRAIGHT TIME HOURS RELEVANT TO A DETERMINATION OF
THE RESPONDENTS' RATE OF PAY.  THE DISTRICT COURT THOUGHT THE
CONCENTRATION WAS SIGNIFICANT.  IT DID NOT TEST WHETHER THE CONTRACT
OVERTIME RATES CONTAINED OVERTIME PREMIUM PAYMENTS BY CONSIDERING
WHETHER THE EMPLOYEE ACTUALLY RECEIVED EXTRA COMPENSATION FOR EXCESS
HOURS.  WE ACCEPT THE DISTRICT COURT'S HOLDING THAT THIS CONCENTRATION
WAS AN INTENDED EFFECT OF THE OVERTIME RATES AND THAT THE HIGHER RATES
DID CONTRIBUTE TO THE CONCENTRATION OF THE WORK IN THE STRAIGHT TIME
HOURS AS SET OUT IN A PRECEDING PARAGRAPH OF THIS OPINION.  P. 456
SUPRA.  SUCH A CONCENTRATION TENDS, IN SOME RESPECTS, TO THE EMPLOYMENT
OF MORE MEN, AS THERE IS PRESSURE FOR MORE WORK TO BE DONE IN THE
STRAIGHT TIME HOURS.  OVERNIGHT MOTOR CO. V. MISSEL, SUPRA, 578. 
HOWEVER, THE PRESSURE OF THE CONTRACT OVERTIME WAGES IS NOT SOLELY
TOWARD A SPREAD OF EMPLOYMENT.  SINCE WORK IS IN FACT DONE OUTSIDE
STRAIGHT TIME HOURS, THE EMPLOYER CAN USE MEN WHO HAVE PREVIOUSLY
WORKED IN STRAIGHT TIME HOURS IN CONTRACT OVERTIME HOURS WITHOUT
ADDITIONAL COST. 

BUT SPREAD OF EMPLOYMENT IS NOT THE SOLE PURPOSE OF THE FORTY-HOUR
MAXIMUM PROVISION OF SEC. 7(A).  ITS PURPOSE IS ALSO TO COMPENSATE AN
EMPLOYEE IN A SPECIFIC MANNER FOR THE STRAIN OF WORKING LONGER THAN
FORTY HOURS.  OVERNIGHT MOTOR CO. V. MISSEL, SUPRA, 578.  THE STATUTE
COMMANDS THAT AN EMPLOYEE RECEIVE TIME AND ONE-HALF HIS REGULAR RATE OF
PAY FOR STATUTORY EXCESS COMPENSATION.  THE CONTRACT HERE IN QUESTION
FAILS TO GIVE THAT COMPENSATION TO AN EMPLOYEE WHO WORKS ALL OR PART OF
HIS TIME IN THE LESS DESIRABLE CONTRACT OVERTIME HOURS.  LOOKED AT FROM
THE INDIVIDUAL STANDPOINT OF RESPONDENTS, THE CONCENTRATION OF WORK
DOES NOT HAVE ANY EFFECT UPON THEIR REGULAR RATE OF PAY.  BECAUSE OF
THIS DEFECT, THE CONCENTRATION OF WORK BROUGHT ABOUT BY THE CONTRACT
HAS NO EFFECT IN THE DETERMINATION OF THE REGULAR RATE OF PAY.  AS WE
INDICATED AT THE BEGINNING OF THIS SUBDIVISION (1), A MAJOR PURPOSE OF
THE STATUTE WAS TO COMPENSATE AN EMPLOYEE BY EXTRA PAY FOR WORK DONE IN
EXCESS OF THE STATUTORY MAXIMUM HOURS.  THUS THE BURDENS OF OVERLY LONG
HOURS ARE BALANCED BY THE PAY OF TIME AND A HALF FOR THE EXCESS HOURS. 

WE THEREFORE HOLD THAT OVERTIME PREMIUM, DEDUCTIBLE FROM EXTRA PAY TO
FIND THE REGULAR RATE OF PAY, IS ANY ADDITIONAL SUM RECEIVED BY AN
EMPLOYEE FOR WORK BECAUSE OF PREVIOUS WORK FOR A SPECIFIED NUMBER OF
HOURS IN THE WORKWEEK OR WORKDAY WHETHER THE HOURS ARE SPECIFIED BY
CONTRACT OR STATUTE.  FN29 

(2)  SINCE UNDER INTERPRETATIVE BULLETIN NO. 4, SEC. 69, THE
ADMINISTRATOR REFERS TO REGULAR WORKING HOURS AS IMPORTANT IN
CALCULATING THE REGULAR RATE OF PAY UNDER SEC. 7(A) OF THE ACT, A WORD
MUST BE SAID AS TO REGULAR WORKING HOURS IN THIS CASE.  FN30  "REGULAR
WORKING HOURS" APPARENTLY HAS NOT BEEN DEFINED BY THE ADMINISTRATOR. 
HE COULD HARDLY HAVE INTENDED IN SEC. 69 TO EMPLOY THE STATUTORY
MAXIMUM HOURS AS SYNONOMOUS WITH REGULAR WORKING HOURS AS THERE IS NO
PROHIBITION ON REGULAR WORKING HOURS THAT ARE LONGER THAN THE STATUTORY
MAXIMUM.  HIS ILLUSTRATIONS, NUMBERS 2 AND 3, SHOW THAT OVERTIME
PREMIUMS MAY BE EARNED WITHIN THE FIRST 40 HOURS OF A WORKWEEK.  THE
STATUTORY MAXIMUM HOURS ARE SIGNIFICANT ONLY AS REQUIRING OVERTIME
PREMIUM PAY.  AN EMPLOYER MAY INCREASE PAY OR DECREASE HOURS FREE AS TO
THOSE STEPS FROM STATUTORY REGULATION.  SEE ARTICLE IN MONTHLY LABOR
REVIEW, SUPRA.  THE TRIAL COURT POINTED OUT THAT "THE IDENTIFYING MARK
OF THE CASE AT BAR IS THE ABSENCE OF ANY NORM, ANY REGULARITY.  BOTH
PARTIES HAVE EMPHASIZED THE CASUAL, IRREGULAR CHARACTER OF THE
EMPLOYMENT."  69 F.SUPP.  959-60.  THE TRIAL COURT, AS WE HAVE
HERETOFORE STATED, PP. 456-457, ALSO FOUND THAT THE "BASIC WORKING
DAY," DEFINED BY SEC. 2(A) OF THE AGREEMENT SET FORTH IN NOTE 5, SUPRA,
WAS NOT THE DAY NORMALLY, REGULARLY OR USUALLY WORKED BY RESPONDENTS. 
INDEED THE CONTRACT, SEC. 1, REQUIRED THESE ROUND-THE-CLOCK IRREGULAR
HOURS FROM SOME INDIVIDUALS.  WE CALL ATTENTION TO THE PROBLEM ONLY TO
LAY IT ASIDE AS INAPPLICABLE IN THIS CASE. 

HOWEVER, THE GOVERNMENT CONTENDS IN THIS CASE THAT REGULAR WORKING
HOURS ARE IMPORTANT, THAT THE CONTRACT FIXED REGULAR WORKING HOURS AS
THE STRAIGHT TIME HOURS AND THAT AS AN ACTUAL FACT AS SHOWN BY THE
STATISTICS OF CONCENTRATION OF WORK IN STRAIGHT TIME HOURS, P. 456,
SUPRA, THE STRAIGHT TIME HOURS WERE THE REGULAR WORKING HOURS OF ALL
LONGSHOREMEN.  THE GOVERNMENT CONCLUDES FROM THIS THAT THE CONTRACT
STRAIGHT TIME PAY IS THE REGULAR RATE OF PAY AND THE CONTRACT OVERTIME
PAY INCLUDES A TRUE OVERTIME PREMIUM.  WE MAY BE MISTAKEN IN THUS
LIMITING THE GOVERNMENT'S ARGUMENT ON THIS POINT.  IF THE GOVERNMENT
MEANS THAT ANY EXTRA PAY TO AN EMPLOYEE FOR WORK OUTSIDE REGULAR
WORKING HOURS OF THE GROUP OF EMPLOYEES IS TO BE EXCLUDED FROM THE
COMPUTATION OF THE REGULAR RATE, WE DO NOT THINK THAT CONTENTION
SOUND.  THE DEFECT IN THIS ARGUMENT, HOWEVER THE GOVERNMENT'S POSITION
IS CONSTRUED, IS THAT IT TREATS OF THE ENTIRE GROUP OF LONGSHOREMEN
INSTEAD OF THE INDIVIDUAL WORKMEN, RESPONDENTS HERE.  THE STRAIGHT TIME
HOURS CAN BE THE REGULAR WORKING HOURS ONLY TO THOSE WHO WORK IN THOSE
HOURS.  THE WORK SCHEDULE OF OTHER INDIVIDUALS IN THE SAME GENERAL
EMPLOYMENT IS OF NO IMPORTANCE IN DETERMINING REGULAR WORKING HOURS OF
A SINGLE INDIVIDUAL.  AS A MATTER OF FACT, REGULAR WORKING HOURS UNDER
A CONTRACT, EVEN FOR AN INDIVIDUAL, HAS NO SIGNIFICANCE IN DETERMINING
THE RATE OF PAY UNDER THE STATUTE.  IT IS NOT IMPORTANT WHETHER PAY IS
EARNED FOR WORK OUTSIDE OF REGULAR WORKING HOURS.  THE TIME WHEN WORK
IS DONE DOES NOT CONTROL WHETHER OR NOT ALL OR A PART OF THE PAY FOR
THAT WORK IS TO BE CONSIDERED AS A PART OF THE REGULAR PAY. 

WE THINK, THEREFORE, THAT THIS CASE PRESENTS NO PROBLEMS THAT INVOLVE
DETERMINATION OF THE REGULAR HOURS OF WORK.  AS AN EMPLOYMENT CONTRACT
FOR IRREGULAR HOURS THE RULE OF DIVIDING THE WEEKLY WAGE BY THE NUMBER
OF HOURS WORKED TO FIND THE REGULAR RATE OF PAY WOULD APPLY.  CF.
OVERNIGHT MOTOR CO. V. MISSEL, SUPRA, AT 580. 

(3)  THE CONTRACT WAS INTERPRETED BY THE SHIPPING ASSOCIATION AND THE
LONGSHOREMENS ASSOCIATION AS PROVIDING THAT THE CONTRACT STRAIGHT TIME
WAS THE REGULAR RATE.  THE PARTIES TO THE CONTRACT INDICATED BY THEIR
CONDUCT THAT THE CONTRACT OVERTIME WAS THE STATUTORY EXCESS
COMPENSATION OR AN OVERTIME PREMIUM.  FINDING 43, 162 F.2D AT 672; SEE
NOTE 33, INFRA.  FN31  APPARENTLY NO DISPUTE OR CONTROVERSY AROSE OVER
THIS INTERPRETATION ALTHOUGH THE CONTRACT, SEC. 19, MADE PROVISION FOR
THE RESOLUTION OF SUCH DISAGREEMENTS.  THE TRIAL COURT DETERMINED THAT
THE STRAIGHT TIME HOURLY RATE WAS THE REGULAR RATE AT WHICH RESPONDENTS
WERE EMPLOYED.  FN32  THIS CONSTRUCTION BY THE PARTIES AND THE COURT'S
CONCLUSION, SUPPORTED BY EVIDENCE, LEADS US TO CONSIDER THIS AGREEMENT
AS THOUGH THERE WAS A PARAGRAPH WHICH READ TO THE EFFECT THAT THE
STRAIGHT TIME RATE IS THE REGULAR RATE OF PAY.  WE SHOULD ALSO CONSIDER
THAT THE CONTRACT PROVIDED THAT THE CONTRACT OVERTIME RATES WERE
INTENDED TO PROVIDE ANY STATUTORY EXCESS COMPENSATION, WHEN MEN WORKED
MORE THAN FORTY HOURS EXCEPT IN THOSE SITUATIONS WHERE THE ENTIRE TIME,
INCLUDING THE EXCESS, WAS IN THE STRAIGHT TIME HOURS.  FN33  THIS OF
COURSE DOES NOT MEAN THAT RESPONDENTS HERE WERE FAMILIAR WITH THESE
PURPOSES OF THE AGREEMENT.  SO FAR AS THE RECORD SHOWS, THEY WORKED FOR
THE PAY PROMISED UNDER THE WORDS OF THE CONTRACT.  IT SHOWS NOTHING
MORE ON THIS POINT. 

UNDER THE CONTRACT WE ARE EXAMINING, THE RESPONDENTS' WORK IN
OVERTIME HOURS WAS PERFORMED WITHOUT ANY RELATION AS TO WHETHER THEY
HAD OR HAD NOT WORKED BEFORE.  UNDER OUR VIEW OF SEC. 7(A)'S
REQUIREMENTS THEIR HIGH PAY WAS NOT BECAUSE THEY HAD PREVIOUSLY WORKED
BUT BECAUSE OF THE DISAGREEABLE HOURS THEY WERE CALLED TO LABOR OR
BECAUSE THE CONTRACTING PARTIES WISHED TO COMPRESS THE REGULAR WORKING
DAYS INTO THE STRAIGHT TIME HOURS AS MUCH AS POSSIBLE.  AS HERETOFORE
POINTED OUT, WE NEED NOT DETERMINE WHAT WERE THE REGULAR WORKING HOURS
OF THESE RESPONDENTS.  IF IT WERE IMPORTANT, THE TRIAL COURT DETERMINED
THAT THEIR REGULAR WORKING HOURS WERE NOT THE STRAIGHT TIME HOURS. 
THEY WORKED AT IRREGULAR TIMES.  FINDING 45, 162 F.2D AT 673.  THE
RECORD SHOWS THAT ALL RESPONDENTS WORKED 5,201 STRAIGHT TIME HOURS AND
20,771 OVERTIME HOURS.  FOUR OF THE TWENTY RESPONDENTS WORKED NO
STRAIGHT TIME HOURS.  FIVE OTHERS WORKED LESS THAN 100 STRAIGHT TIME
HOURS.  THREE WORKED MORE STRAIGHT TIME THAN OVERTIME.  THE RECORD DOES
NOT SHOW THE HOURS THESE RESPONDENTS WORKED FOR OTHER EMPLOYERS.  THAT
FACT IS IMMATERIAL IN THIS CASE AS RESPONDENTS SEEK RECOVERY ONLY FROM
PETITIONER EMPLOYERS.  THESE ROUND-THE-CLOCK HOURS WERE IN STRICT
ACCORDANCE WITH THE CONTRACT WHICH ALLOWED THE LONGSHOREMENS
ASSOCIATION TO FURNISH ALL MEN NEEDED AND CALLED FOR THE MEN TO "WORK
ANY NIGHT OF THE WEEK, OR ON SUNDAYS, HOLIDAYS, OR SATURDAY AFTERNOONS,
WHEN REQUIRED."  SECS. 1 AND 2; SEE NOTE 5.  MEN WHO WORKED CONTRACT
OVERTIME HOURS WERE ENTITLED TO CONTRACT OVERTIME PAY.  THEY WERE GIVEN
NO OVERTIME PREMIUM PAY BECAUSE OF LONG HOURS.  IT IS IMMATERIAL THAT
HIS REGULAR RATE MAY GREATLY EXCEED THE STATUTORY MINIMUM RATE.  THIS
CONTRACT OVERTIME RATE, THEREFORE, DID NOT MEET THE EXCESS PAY
REQUIREMENTS OF SEC. 7. 

IN FINDING THE STATUTORY EXCESS COMPENSATION DUE RESPONDENTS, THE
TRIAL COURT MUST DETERMINE THE METHOD OF COMPUTATION.  EACH RESPONDENT
IS ENTITLED TO RECEIVE COMPENSATION FOR HIS HOURS WORKED IN EXCESS OF
FORTY AT ONE AND A HALF TIMES HIS REGULAR RATE, COMPUTED AS THE
WEIGHTED AVERAGE OF THE RATES WORKED DURING THE WEEK.  IN COMPUTING THE
AMOUNT TO BE PAID, THE PETITIONERS MAY CREDIT AGAINST THE OBLIGATION TO
PAY STATUTORY EXCESS COMPENSATION THE AMOUNT ALREADY PAID TO EACH
RESPONDENT WHICH IS ALLOCABLE TO WORK IN THOSE EXCESS HOURS.  THE
PRECISE METHOD FOR COMPUTING THIS CREDIT PRESENTS THE DIFFICULTY. 
ACCORDING TO THE ADMINISTRATOR'S INTERPRETATION, AN EMPLOYER MAY CREDIT
HIMSELF WITH AN AMOUNT EQUAL TO THE NUMBER OF HOURS WORKED IN EXCESS OF
FORTY MULTIPLIED BY THE REGULAR RATE OF PAY FOR THE ENTIRE WEEK RATHER
THAN AN AMOUNT EQUAL TO THE NUMBER OF HOURS WORKED IN EXCESS OF FORTY
MULTIPLIED BY THE AVERAGE RATE OF PAY FOR THOSE EXCESS HOURS.  FN34
UNDER THAT FORMULA EACH RESPONDENT IS ENTITLED, AS STATUTORY EXCESS
COMPENSATION, TO AN ADDITIONAL SUM EQUAL TO THE NUMBER OF HOURS WORKED
FOR ONE EMPLOYER IN A WORKWEEK IN EXCESS OF FORTY, MULTIPLIED BY ONE
HALF THE REGULAR RATE OF PAY.  ON THE RECORD BEFORE US, THAT
INTERPRETATION SEEMS TO BE A REASONABLE ONE; WE LEAVE A FINAL
DETERMINATION OF THE POINT TO THE DISTRICT COURT ON FURTHER
PROCEEDINGS. 

THE CIRCUIT COURT ORDERED THE CASE REMANDED TO THE DISTRICT COURT FOR
DETERMINATION OF THE AMOUNTS DUE RESPONDENTS IN ACCORDANCE WITH ITS
OPINION.  BY A FURTHER ORDER, IT ALLOWED THE DISTRICT COURT TO CONSIDER
ANY MATTERS PRESENTED TO IT BY PETITIONERS AS A DEFENSE IN WHOLE OR IN
PART UNDER THE PORTAL-TO-PORTAL ACT.  WE MODIFY THESE ORDERS SO AS TO
PERMIT THE DISTRICT COURT TO ALLOW ANY AMENDMENTS TO THE COMPLAINT OR
ANSWER OR ANY FURTHER EVIDENCE THAT THE DISTRICT COURT MAY CONSIDER
JUST. 

AS SO MODIFIED THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS
AFFIRMED. 

FN1  52 STAT. 1060, 1063, APPROVED JUNE 25, 1938; SEC. 7(A) TOOK
EFFECT 120 DAYS LATER, SEC. 7(D).  NO PROBLEM AS TO THE LENGTH OF TIME
ANY EMPLOYEE WORKED IS PRESENTED.  SEE TENNESSEE COAL CO. V. MUSCODA
LOCAL, 321 U.S. 590; ANDERSON V. MT. CLEMENS POTTERY CO., 328 U.S.
680.  PORTAL-TO-PORTAL ACT OF 1947, 61 STAT. 84. 

FN2  THE USE OF THE WORD "OVERTIME" IN THE CONTRACT DOES NOT DECIDE
THIS CASE.  THE PROBLEM FOR SOLUTION IS WHETHER RATES DESCRIBED AS
"OVERTIME" BY THE CONTRACT ACTUALLY ARE SUCH RATES AS SEC. 7(A)
PROVIDES FOR STATUTORY EXCESS HOURS. 

AS WILL HEREAFTER APPEAR, WE CONSIDER THE CONTRACT AS INTENDING TO
PROVIDE STATUTORY EXCESS COMPENSATION AND OVERTIME PREMIUM. 
CONSEQUENTLY, WE ACCEPT THE WORD "OVERTIME" USED IN THE CONTRACT TO
DESCRIBE ONE WAGE SCALE AS HAVING BEEN INTENDED BY THE PARTIES TO THE
CONTRACT TO SATISFY FULLY THE REQUIREMENTS OF SEC. 7(A). 

FN3  THE FOLLOWING PHRASES ARE USED IN THIS OPINION WITH THE
FOLLOWING MEANING.  THESE DEFINITIONS DO NOT APPLY TO QUOTATIONS. 

EXTRA PAY.  - ANY INCREASED DIFFERENTIAL FROM A LOWER PAY SCALE FOR
WORK AFTER A CERTAIN NUMBER OF HOURS IN A WORKDAY OR WORKWEEK OR FOR
WORK AT SPECIFIED HOURS. 

OVERTIME PREMIUM.  - EXTRA PAY FOR WORK BECAUSE OF PREVIOUS WORK FOR
A SPECIFIED NUMBER OF HOURS IN THE WORKWEEK OR WORKDAY WHETHER THE
HOURS ARE SPECIFIED BY CONTRACT OR STATUTE.    STATUTORY EXCESS
COMPENSATION.  - ADDITIONAL COMPENSATION REQUIRED TO BE PAID BY SEC.
7(A), F.L.S.A. 

REGULAR RATE OF PAY.  - TOTAL COMPENSATION FOR HOURS WORKED DURING
ANY WORKWEEK LESS OVERTIME PREMIUM DIVIDED BY TOTAL NUMBER OF HOURS
WORKED. 

THE FOLLOWING DEFINITIONS APPLY TO THE CIRCUMSTANCES OF THIS CONTRACT
ONLY: 

CONTRACT STRAIGHT TIME.  - COMPENSATION PAID UNDER THE LONGSHORING
CONTRACT FOR WORK DURING THE HOURS DEFINED IN PAR. 3(A) OF THE
CONTRACT, AS FOLLOWS:  8 A.M. TO 12 NOON AND FROM 1 P.M. TO 5 P.M.,
MONDAY TO FRIDAY, INCLUSIVE, AND FROM 8 A.M. TO 12 NOON SATURDAY. 
CONTRACT OVERTIME.  - ADDITIONAL COMPENSATION WHICH THE CONTRACT
REQUIRES SHALL BE PAID FOR WORK ON LEGAL HOLIDAYS AND FOR WORK AT HOURS
OTHER THAN THOSE SPECIFIED IN PAR. 3(A). 

FN4  52 STAT. 1069, SEC. 16: 

"(B)  ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 6 OR
AFFECTED IN THE AMOUNT OF THEIR UNPAID MINIMUM WAGES, OR THEIR UNPAID
OVERTIME COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL EQUAL
AMOUNT AS LIQUIDATED DAMAGES.  ...  THE COURT IN SUCH ACTION SHALL, IN
ADDITION TO ANY JUDGMENT AWARDED TO THE PLAINTIFF OR PLAINTIFFS, ALLOW
A REASONABLE ATTORNEY'S FEE TO BE PAID BY THE DEFENDANT, AND COSTS OF
THE ACTION." 

FN5  THE AGREEMENT CONTAINS THE FOLLOWING PROVISIONS WITH RESPECT TO
THE HOURS OF WORK AND SCALE OF WAGES:

                     I. GENERAL CARGO AGREEMENT. 

"1.  MEMBERS OF THE PARTY OF THE SECOND PART SHALL HAVE ALL OF THE
WORK PERTAINING TO THE RIGGING UP OF SHIPS AND THE COALING OF SAME, AND
THE DISCHARGING AND LOADING OF ALL CARGOES INCLUDING MAIL, SHIPS'
STORES AND BAGGAGE.  WHEN THE PARTY OF THE SECOND PART CANNOT FURNISH A
SUFFICIENT NUMBER OF MEN TO PERFORM THE WORK IN A SATISFACTORY MANNER,
THEN THE PARTY OF THE FIRST PART MAY EMPLOY SUCH OTHER MEN AS ARE
AVAILABLE. 

"2. (A)  THE BASIC WORKING DAY SHALL CONSIST OF 8 HOURS, AND THE
BASIC WORKING WEEK SHALL CONSIST OF 44 HOURS.  MEN SHALL WORK ANY NIGHT
OF THE WEEK, OR ON SUNDAYS, HOLIDAYS, OR SATURDAY AFTERNOONS, WHEN
REQUIRED.  ON SATURDAY NIGHT, WORK SHALL BE PERFORMED ONLY TO FINISH A
SHIP FOR SAILING ON SUNDAY, OR TO HANDLE MAIL OR BAGGAGE. 

"(B)  MEAL HOURS SHALL BE FROM 6 A.M. TO 7 A.M., FROM 12 NOON TO 1
P.M., FROM 6 P.M. TO 7 P.M., AND FROM 12 MIDNIGHT TO 1 A.M. 

     . .         .         .         . 

"(C)  LEGAL HOLIDAYS SHALL BE:  NEW YEAR'S DAY, LINCOLN'S BIRTHDAY,
WASHINGTON'S BIRTHDAY, GOOD FRIDAY ON THE NEW JERSEY SHORE, DECORATION
DAY, FOURTH OF JULY, LABOR DAY, COLUMBUS DAY, ELECTION DAY, ARMISTICE
DAY, THANKSGIVING, CHRISTMAS, AND SUCH OTHER NATIONAL OR STATE HOLIDAYS
AS MAY BE PROCLAIMED BY EXECUTIVE AUTHORITY. 

     .      .         .         .         . 

"3. (A)  STRAIGHT TIME RATE SHALL BE PAID FOR ANY WORK PERFORMED FROM
8 A.M. TO 12 NOON AND FROM 1 P.M. TO 5 P.M., MONDAY TO FRIDAY,
INCLUSIVE, AND FROM 8 A.M. TO 12 NOON SATURDAY. 

"(B)  ALL OTHER TIME, INCLUDING MEAL HOURS AND THE LEGAL HOLIDAYS
SPECIFIED HEREIN, SHALL BE CONSIDERED OVERTIME AND SHALL BE PAID FOR AT
THE OVERTIME RATE. 

"(C)  THE FULL MEAL HOUR RATE SHALL BE PAID IF ANY PART OF THE MEAL
HOUR IS WORKED AND SHALL CONTINUE TO APPLY UNTIL THE MEN ARE RELIEVED. 

"4.  WAGE SCALE:  THE WAGE SCALE SHALL BE AS FOLLOWS:

          STRAIGHT

                 TIME       OVERTIME

                                  HOURLY       HOURLY

                                                    RATE      RATE 

"(A)  GENERAL CARGO OF EVERY DESCRIPTION, INCLUDING 

     BARREL OIL WHEN PART OF GENERAL CARGO, 

AND ALL GENERAL CARGO HANDLED IN REFRIGERATOR 

     SPACE WITH THE TEMPERATURE ABOVE 

     FREEZING ......................................   $1.25
$1.87 1/2" 

EXTRA RATES ARE PAID FOR SPECIAL TYPES OF CARGO. 

  FOR EXAMPLE: 

"(D)  WET HIDES, CREOSOTED POLES, CREOSOTED TIES, 

     CREOSTED SHINGLES AND SODA ASH IN BAGS ........   $1.40
$2.02 1/2" 

FN6  ADDISON V. HURON STEVEDORING CORP., 69 F.SUPP.  956; AARON V.
BAY RIDGE OPERATING CO., 162 F.2D 665. 

FN7 MR. WALTER E. MALONEY, REPRESENTING THE NATIONAL FEDERATION OF
AMERICAN SHIPPING, TESTIFIED THAT LIABILITY TO THE GOVERNMENT ON
STEVEDORING CONTRACTS MIGHT RUN AS HIGH AS $260,000,000, ALTHOUGH HE
ADMITTED THAT THE AMOUNT OF LIABILITY WAS "ALMOST IMPOSSIBLE TO
CALCULATE."  HEARINGS BEFORE SUBCOMMITTEE NO. 4 OF THE HOUSE COMMITTEE
ON EDUCATION AND LABOR, 80TH CONG., 1ST SESS., PP. 1198-1205. 
COMMITTEE MEMBERS REFERRED TO THE AMOUNTS IN QUESTION AS $236,000,000,
$340,000,000, AND $300,000,000.  HEARINGS, SUPRA, PP. 1203, 2283,
2469.  THE BASIS FOR SUCH FIGURES DOES NOT APPEAR.  NOR IS IT MADE
CLEAR WHETHER THE PORTAL-TO-PORTAL ACT WAS IN MIND.  61 STAT. 84, 88,
89, PT. IV, SECS. 9 AND 11. 

THE INTERNATIONAL LONGSHOREMENS ASSOCIATION CLAIMS TO HAVE
APPROXIMATELY 80,000 MEMBERS IN UNITED STATES AND CANADA.  THIRTY
THOUSAND ARE SAID TO WORK IN THE PORT OF NEW YORK, AND THE TERMS
ADOPTED IN THE NEW YORK CONTRACT ARE GENERALLY FOLLOWED IN OTHER
PORTS.  THE WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST
STATES THAT 20,000 STEVEDORES ARE COVERED BY 21 COLLECTIVE BARGAINING
CONTRACTS, OF WHICH 3 ARE WITH THE INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION.  THE CURRENT NEW YORK CONTRACT WITH THE I.L.A.
AND THE 21 AGREEMENTS BETWEEN THE PACIFIC ASSOCIATION AND THE I.L.A.
AND I.L.W.U. ARE SAID TO CONTAIN CLAUSES PERMITTING CANCELLATION IF THE
COURTS SUSTAIN THE CLAIMS OF PLAINTIFFS IN THIS SUIT. 

FN8  HEARINGS, SUPRA, NOTE 7, 2467-2471; 2474-2482; 2736-2762. 

FN9  THE TRIAL COURT GAVE THE FOLLOWING EXPLANATION OF THE "SHAPE,"
FINDING 16: 

"AT THREE STATED HOURS DURING THE DAY, NAMELY AT 7.55 A.M., 12.55
P.M. AND 6.55 P.M., MEN SEEKING EMPLOYMENT GATHER IN A GROUP OR
SEMICIRCLE, CONSTITUTING THE 'SHAPE,' AT THE HEAD OF A PIER WHERE WORK
IS AVAILABLE.  THE FOREMAN STEVEDORE THEN SELECTS FROM THE 'SHAPE' SUCH
MEN AS HE DESIRES TO HIRE, TO WORK UNTIL 'KNOCKED OFF,' THAT IS, TOLD
TO QUIT.  THE SELECTION OF A MAN FROM THE SHAPE CARRIES WITH IT NO
OBLIGATION ON THE PART OF THE EMPLOYER CONCERNING ANY SPECIFIED LENGTH
OF EMPLOYMENT, EXCEPT FOR WORK REQUIREMENTS OF THE COLLECTIVE AGREEMENT
RELATING TO MINIMUM HOURS UNDER SPECIFIED CONDITIONS.  THE DURATION OF
EMPLOYMENT DEPENDS ENTIRELY UPON THE DETERMINATION OF THE STEVEDORE OR
THE STEAMSHIP COMPANY." 

FN10  THE TRIAL COURT FOUND, FINDING 13, THAT "THE WORK WEEK
COMMENCED ON MONDAY AT 7 A.M., AND ENDED THE FOLLOWING MONDAY AT 7
A.M."  THE 44-HOUR WEEK HAD BEEN IN THE CONTRACTS BETWEEN THE SHIPPING
ASSOCIATION AND THE LONGSHOREMENS ASSOCIATION PRIOR TO THE FAIR LABOR
STANDARDS ACT.  NO ADJUSTMENT OF THE BASIC WORKWEEK WAS MADE IN THE
CONTRACT WHEN THE 42- AND 40-HOUR PROVISIONS OF SEC. 7(A) BECAME
EFFECTIVE. 

FN11  MR. RYAN EXPLAINED THE ASSOCIATION OBJECTIVE AS FOLLOWS:  "OUR
OBJECTIVE WAS TO DE-CASUALIZE LONGSHORE WORK AS MUCH AS POSSIBLE, TO
HAVE THE WORK DONE IN THE DAYTIME AS MUCH AS POSSIBLE, AND MAKE IT AS
EXPENSIVE FOR THE EMPLOYERS AS POSSIBLE ON SUNDAY.  BEFORE THERE WAS
ANY UNION WE HAD DOUBLE TIME FOR SUNDAY.  WE WANTED TO WORK IN THE
DAYTIME.  WE FIGURED WE ONLY LIVE ONCE.  WE WANT THE DAYTIME WHEN EVERY
MAN WHO WANTS TO WORK WANTS IT DONE IN THE DAYTIME AND NOT DURING
OVERTIME.  THE EMPLOYERS WOULD SAY IT CANNOT BE DONE IN THE STEAMSHIP
INDUSTRY.  I THINK WE HAVE PROVEN FOR THEM THAT AFTER 30 YEARS OF
NEGOTIATING MANY OF THE THINGS THEY SAID COULD NOT BE DONE IN THE
INDUSTRY, WHEN THEY FOUND IT TOO EXPENSIVE TO DO IT IN ANY OTHER WAY,
HAVE BEEN DONE. 

"Q.  DO THE MEN OBJECT TO WORKING OUTSIDE OF A NORMAL DAY?  A.
ABSOLUTELY." 

FURTHERMORE, AS THE LONGSHOREMENS ASSOCIATION'S PRIMARY INTEREST IS
AS STATED ABOVE BY MR. RYAN, IT FEARS THE EFFECT ON THEIR EMPLOYMENT
CONTRACT OF A HOLDING THAT THE CONTRACT OVERTIME RATE MUST BE USED IN
THE DETERMINATION OF STATUTORY EXCESS COMPENSATION.  THE SHIPPING
ASSOCIATION MIGHT INSIST ON A REDUCTION OF THE CONTRACT OVERTIME RATE,
IF PAYMENT OF THAT RATE WERE NOT TO BE TREATED AS A SATISFACTION OF THE
STATUTORY REQUIREMENTS. 

FN12  SEE NOTE 7, SUPRA. 

FN13  OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, 577, 578; WALLING
V. HELMERICH & PAYNE, 323 U.S. 37, 40; BROOKLYN BANK V. O'NEIL, 324
U.S. 697, 706; JEWELL RIDGE CORP. V. LOCAL, 325 U.S. 161, 167. 

FN14  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 523; SEE SEC. 9, PART
IV, PORTAL-TO-PORTAL ACT, 61 STAT. 84, 88. 

FN15  149 MADISON AVE. CORP. V. ASSELTA, SUPRA, P. 204:  "THE CRUCIAL
QUESTIONS IN THIS CASE, HOWEVER, ARE WHETHER THE HOURLY RATE DERIVED
FROM THE FORMULA HERE PRESENTED WAS, IN FACT, THE 'REGULAR RATE' OF PAY
WITHIN THE STATUTORY MEANING AND WHETHER THE WAGE AGREEMENT UNDER
CONSIDERATION, IN FACT, MADE ADEQUATE PROVISION FOR OVERTIME
COMPENSATION."  WALLING V. HARNISCHFEGER CORP., 325 U.S. 427, 432. 

FN16  WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO., SUPRA, 424;
WALLING V. HARNISCHFEGER CORP., SUPRA, 430. 

FN17  NATIONAL LABOR RELATIONS ACT, 49 STAT. 449; LABOR MANAGEMENT
RELATIONS ACT OF 1947, 61 STAT. 136; NORRIS-LAGUARDIA ACT, 47 STAT. 70,
SEC. 2; PORTAL-TO-PORTAL ACT OF 1947, 61 STAT. 84, SEC. 1. 

FN18  THE CONTENTION, HOWEVER, FOUND FAVOR WITH THE DISTRICT COURT:
"SUCH CATASTROPHIC RESULTS ARE INEVITABLE ONCE WE ACCEPT PLAINTIFFS'
UNDERLYING PREMISE - THAT IN DETERMINING THE 'REGULAR RATE' INTENDED BY
CONGRESS, WE MUST CLOSE OUR EYES TO THE CONTRACT IN GOOD FAITH
NEGOTIATED BETWEEN EMPLOYER AND EMPLOYEES AND LOOK ONLY TO THE ACTUAL
WORK PATTERN.  UPON SUCH A PREMISE, GENUINE COLLECTIVE BARGAINING
CANNOT LIVE."  69 F.SUPP.  956, 959. 

FN19 "COLLECTIVE BARGAINING, TO BE EFFECTIVE, MUST NECESSARILY DEAL
WITH LARGE GROUPS - WITH ALL THE WORKERS IN THE INDUSTRY, OR ITS
SUBDIVISION, ON WHOSE BEHALF THE BARGAINING IS BEING CONDUCTED.  AND
WHEN, AS IN THE I.L.A., SUCH COLLECTIVE AGREEMENTS ARE SUBMITTED TO A
VOTE OF THE MEMBERSHIP AFFECTED, AND THAT APPROVAL OF THE BARGAIN THUS
ARRIVED AT IS VOTED, IT WOULD MAKE OF COLLECTIVE BARGAINING A MOCKERY
IF SOME OF THEM COULD SEEK SPECIAL TERMS, BECAUSE, FOR A SHORT PERIOD
OF TIME, THEIR WORK EXPERIENCE HAS VARIED IN SOME DEGREE FROM THAT OF
THEIR FELLOW WORKERS." 

FN20  SEE NOTE 30 AND WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO.,
SUPRA, 424-25. 

FN21  CF. FINDING 28(A):  "PRIOR TO THE FAIR LABOR STANDARDS ACT, THE
WORD OVERTIME HAD A GENERALLY ACCEPTED MEANING IN AMERICAN INDUSTRY,
NAMELY, EXCESS TIME, TO WHICH A PENALTY RATE OF COMPENSATION WAS
APPLIED TO DISCOURAGE SUCH WORK.  THE IDEA OF EXCESSIVITY, HOWEVER, WAS
NOT AN INDISPENSABLE ELEMENT OF THE CONCEPT OF OVERTIME AS UNDERSTOOD. 
OVERTIME WAS ALSO UNDERSTOOD TO COVER HOURS OUTSIDE OF A SPECIFIED
CLOCK PATTERN." 

FN22  THE HOLDING IN WALLING V. HELMERICH & PAYNE, SUPRA, IS NOT TO
THE CONTRARY OF THIS POSITION.  THE FACTS OF THAT CASE INDICATED A
PALPABLE EVASION OF THE STATUTORY PURPOSES.  SEE 69 F.SUPP.  AT P. 958,
NOTE 1. 

NOR IS THE DECISION IN 149 MADISON AVE. CORP. V. ASSELTA, SUPRA,
OPPOSED TO THIS POSITION.  IN THAT CASE WEEKLY WAGE CONTRACTS CALLING
FOR A WORKWEEK OF 46 AND 54 HOURS PROVIDED THE FOLLOWING FORMULA FOR
DETERMINING THE REGULAR HOURLY RATE OF PAY:  "'THE HOURLY RATES FOR
THOSE REGULARLY EMPLOYED MORE THAN FORTY (40) HOURS PER WEEK SHALL BE
DETERMINED BY DIVIDING THEIR WEEKLY EARNINGS BY THE NUMBER OF HOURS
EMPLOYED PLUS ONE-HALF THE NUMBER OF HOURS ACTUALLY EMPLOYED IN EXCESS
OF FORTY (40) HOURS.'"  331 U.S. AT 202.  UNDER THAT METHOD OF
COMPUTATION AN EMPLOYEE WHO WORKED 46 HOURS RECEIVED A SUM EQUAL TO
WHAT HE WOULD HAVE RECEIVED IF HE HAD BEEN PAID FOR 40 HOURS' WORK AT
THE FORMULA HOURLY RATE AND 6 HOURS OF WORK AT ONE AND A HALF TIMES THE
FORMULA RATE.  AS SO CONSTRUED, THE EXTRA PAY FOR WORK IN EXCESS OF 40
HOURS WOULD BE AN OVERTIME PREMIUM WHICH COULD BE EXCLUDED FROM THE
COMPUTATION OF THE REGULAR RATE, AND THE REGULAR RATE WOULD BE THE
FORMULA RATE.  THE COURT DID NOT REACH THE QUESTION OF THE LEGALITY OF
THAT METHOD OF COMPUTATION AS IT HELD THAT SINCE THE FORMULA RATE WAS
NOT CONSISTENTLY EMPLOYED IN DETERMINING COMPENSATION, THE FORMULA RATE
COULD NOT BE CONSIDERED THE REGULAR RATE FOR THOSE WHO WORKED MORE THAN
40 HOURS.  ACCORDINGLY THE REGULAR RATE WAS HELD TO BE THE AVERAGE OF
ALL WAGES ACTUALLY PAID DURING THE ENTIRE WEEK.  SEE ASSELTA V. 149
MADISON AVE. CORP., 156 F.2D 139, 141. 

FN23  THE OPINION STATED: 

"THIS CONTROVERSY REQUIRES FOR ITS RESOLUTION A DELICATE ADJUSTMENT
TO ACCOMMODATE THE HARMONIOUS APPLICATION OF THREE NATIONAL POLICIES. 
A HEAVY HANDED MESHING OF THESE THREE POLICIES WITH THE INDUSTRIAL
MACHINE WHICH FAILS TO MINIMIZE THE FRICTION AT THEIR POINTS OF CONTACT
CAN GENERATE ENOUGH HEAT TO IMPAIR ONE OR MORE OF THE POLICIES OR
SEVERELY INJURE THE MACHINE ITSELF. 

"IN CHRONOLOGICAL ORDER WE HAVE (1) THE NATIONAL LABOR RELATIONS ACT,
JULY 5, 1935, 49 STAT. 449,  ...  TO ENCOURAGE THE PRACTICE OF
COLLECTIVE BARGAINING; (2) THE FAIR LABOR STANDARDS ACT, JUNE 25, 1938,
52 STAT. 1060,  ...  TO CORRECT AND ELIMINATE THE LABOR CONDITIONS
DETRIMENTAL TO THE MAINTENANCE OF THE MINIMUM STANDARD OF LIVING
NECESSARY FOR HEALTH, EFFICIENCY AND GENERAL WELL BEING OF WORKERS; (3)
THE NATIONAL NEED DURING THE WAR FOR THE MAXIMUM OF PRODUCTION AS
ILLUSTRATED BY EXECUTIVE ORDER 9301, FEBRUARY 9, 1943, 8 FED. REG.
1825, ESTABLISHING THE 48 HOUR WEEK FOR THE DURATION OF THE WAR."  69
F.SUPP.  956, 958. 

FN24  36 HOURS X $1   14 HOURS X $1.50   TOTAL WAGES $57.  REGULAR
RATE   $57, LESS OVERTIME PREMIUM OF $7,/50 HOURS   $1 PER HOUR. 
FN25  5 DAYS X 8 HOURS AT $1 PER HOUR   5 DAYS X 2 HOURS AT $1.50 PER
HOUR   $55 TOTAL WAGE.  REGULAR RATE   $55 - $5/50   $1 PER HOUR. 

FN26  EXECUTIVE ORDER 9301, ISSUED FEBRUARY 9, 1943, 8 FED. REG.
1825, PROVIDED THAT ALL GOVERNMENT CONTRACTORS SHOULD WORK THEIR
EMPLOYEES AT LEAST 48 HOURS PER WEEK.  THE ORDER PROVIDED THAT IT
SHOULD NOT BE CONSTRUED AS SUPERSEDING THE PROVISIONS OF ANY INDIVIDUAL
OR COLLECTIVE BARGAINING AGREEMENT WITH RESPECT TO RATES OF PAY FOR
HOURS WORKED IN EXCESS OF THE AGREED OR CUSTOMARY WORKWEEK, NOR AS
SUSPENDING OR MODIFYING ANY PROVISION OF THE FAIR LABOR STANDARDS ACT
OR ANY OTHER LAW RELATING TO THE PAYMENT OF WAGES OR OVERTIME. 

FN27  FOR EXAMPLE, DAYTIME WATCHMAN'S PAY, $.60 PER HOUR.  NIGHTTIME
WATCHMAN'S PAY $.90 PER HOUR, EIGHT-HOUR, SEVEN-DAY SHIFT.  SIXTEEN
HOURS WOULD BE COMPENSATED FOR AT EXCESS TIME RATES.  THE WATCHMAN'S
PAY WOULD BE 56 X $.90   $50.40.  HIS STATUTORY EXCESS PAY 16 X $.45
$7.20; TOTAL $57.60.  HIS REGULAR RATE IS ($57.60-$7.20)/56 OR $.90 PER
HOUR. 

COMPARE LEGAL FIELD LETTER 109, OFFICE OF THE SOLICITOR, DEPARTMENT
OF LABOR, JULY 31, 1946, 1947 WAGE-HOUR MAN.  66, IN WHICH THE CHIEF OF
THE WAGE-HOUR SECTION CHARACTERIZES A PARTICULAR 50% DIFFERENTIAL AS A
SHIFT DIFFERENTIAL. 

FN28  THIS IS WELL BROUGHT OUT BY A CASE SIMILAR IN CHARACTER TO THIS
LITIGATION.  FERRER V. WATERMAN S.S. CORP., 70 F.SUPP.  1.  THERE THE
WAGE SCHEDULE WAS AS FOLLOWS, P. 3:

                     GENERAL CARGO 

FROM        TO                       WORK DAYS     HOLIDAYS 

7 A.M.      12 M.D. ................      $0.55        $0.77 

12 M.D. 1 P.M. .................       0.90         1.00 

1 P.M.   4 P.M. .................       0.55         0.77 

4 P.M.     6 P.M. .................       0.77         0.84 

6 P.M.      7 P.M. .................       0.90         1.20 

7 P.M.      11 P.M. ................       0.77         0.84 

11 P.M.     12 M.N. ................       0.90         1.25 

12 M.N.     6 A.M. .................       0.84         1.02 

6 A.M.      7 A.M. .................       1.30         1.40 

FN29  WE AVOID ANY EXTENDED DISCUSSION OF RESPONDENTS' SUGGESTION
THAT THE PROPER WAY TO DETERMINE THE REGULAR RATE IS TO DIVIDE THE
WAGES RECEIVED DURING THE FIRST FORTY HOURS OF WORK IN A WEEK BY 40. 
THE QUOTIENT, IT IS SUGGESTED, WOULD BE THE REGULAR RATE.  ONE FAULT OF
THAT METHOD, WE THINK, IS THAT SUCH WAGES MIGHT CONTAIN OVERTIME
PREMIUM PAYMENTS; FOR EXAMPLE, A CONTRACT WHICH FIXED A RATE FOR 36
HOURS AND A HIGHER RATE FOR SUBSEQUENT HOURS.  ANOTHER OBJECTION IS
THAT SUCH A METHOD OF COMPUTATION WOULD GIVE AN IMPROPERLY WEIGHTED
AVERAGE FOR THE RATE OF PAY FOR THE ENTIRE WEEK; AN EMPLOYEE WHO
PERFORMED MORE HIGHLY SKILLED OR UNPLEASANT WORK AFTER 40 HOURS OF WORK
WOULD NOT RECEIVE THE PROPER AMOUNT OF STATUTORY EXCESS COMPENSATION IF
THE REGULAR RATE WERE COMPUTED ONLY ON THE BASIS OF THE FIRST 40
HOURS.  THE STATEMENT AS TO STATUTORY EXCESS HOURS IN WALLING V.
YOUNGERMAN-REYNOLDS HARDWOOD CO., 325 U.S. 419, 423, WAS MADE AS TO A
SITUATION WHERE THIS COURT CONCLUDED THE DUAL PAY PLAN OF THE CASE WAS
"WHOLLY UNREALISTIC AND ARTIFICIAL  ...  SO AS TO NEGATE THE STATUTORY
PURPOSES."  323 U.S. 42.  THE PROBLEM WE ARE HERE CONSIDERING WAS NOT
AT ISSUE. 

FN30  THE QUESTION IS SUFFICIENTLY SHOWN BY THIS EXCERPT:  "EXTRA
COMPENSATION PAID FOR OVERTIME WORK, EVEN IF REQUIRED TO BE PAID BY A
UNION AGREEMENT OR OTHER AGREEMENT BETWEEN THE EMPLOYER AND HIS
EMPLOYEES NEED NOT BE INCLUDED IN DETERMINING THE EMPLOYEE'S REGULAR
HOURLY RATE OF PAY (SEE PAR. 13 OF THIS BULLETIN).  FURTHERMORE, IN
DETERMINING WHETHER HE HAS MET THE OVERTIME REQUIREMENTS OF SECTION 7
THE EMPLOYER MAY PROPERLY CONSIDER AS OVERTIME COMPENSATION PAID BY HIM
FOR THE PURPOSE OF SATISFYING THESE REQUIREMENTS, ONLY THE EXTRA AMOUNT
OF COMPENSATION - OVER AND ABOVE STRAIGHT TIME - PAID BY HIM AS
COMPENSATION FOR OVERTIME WORK - THAT IS, FOR HOURS WORKED OUTSIDE THE
NORMAL OR REGULAR WORKING HOURS - REGARDLESS OF WHETHER HE IS REQUIRED
TO PAY SUCH COMPENSATION BY A UNION OR OTHER AGREEMENT." 
INTERPRETATIVE BULLETIN NO. 4, UNITED STATES DEPARTMENT OF LABOR, WAGE
AND HOUR DIVISION, OFFICE OF THE ADMINISTRATOR, REVISED NOVEMBER 1940. 

FN31  AS A MATTER OF FACT, IN HALF OF THE CARGO CLASSIFICATIONS THE
OVERTIME RATE WAS A FEW CENTS LESS PER HOUR THAN TIME AND A HALF THE
STRAIGHT TIME RATES. 

FN32  CONCLUSION OF LAW NO. 3:  "THE 'STRAIGHT TIME HOURLY RATE' SET
FORTH IN EACH SUBDIVISION OF PARAGRAPH 4 OF THE COLLECTIVE AGREEMENT,
AS STATED IN FINDING OF FACT NO. 9, CONSTITUTED THE REGULAR RATE AT
WHICH PLAINTIFFS WERE EMPLOYED WHEN HANDLING THE STATED KIND OF
CARGO." 

FN33  IT IS CLEAR UNDER THE APPLICABLE SECTION OF THE AGREEMENT, SEC.
2(A), NOTE 5 ABOVE, THAT A MAN COULD WORK ALL HIS TIME WHOLLY IN
CONTRACT OVERTIME HOURS.  AN EMPLOYEE RECEIVED OVERTIME PREMIUM FOR
WORK DONE IN WHAT THE TRIAL COURT CONSIDERED TO BE THE BASIC WORKWEEK. 
FINDING 43(A): "IF, AND ONLY IF, A LONGSHOREMAN WORKED MORE THAN 40
HOURS BETWEEN 8 A.M. AND 12 NOON, AND 1 P.M. AND 5 P.M. ON MONDAYS TO
FRIDAYS, INCLUSIVE, AND BETWEEN 8 A.M. AND 12 NOON ON SATURDAY OF THAT
WORKWEEK, NONE OF THESE DAYS BEING A HOLIDAY, HE WAS PAID AN ADDITIONAL
SUM FOR WORK ON SATURDAY MORNING IN EXCESS OF 40 HOURS - NAMELY 62 1/2
CENTS PER HOUR,  ...  " 

FN34  SEE INTERPRETATIVE BULLETIN NO. 4, SEC. 14.  THE ADMINISTRATOR
ILLUSTRATES HIS POSITION WITH THE FOLLOWING EXAMPLE:  AN EMPLOYEE WORKS
30 HOURS A WEEK AT AN OCCUPATION PAYING 40 CENTS AN HOUR AND 20 HOURS
IN THE SAME WEEK AT AN OCCUPATION PAYING 50 CENTS AN HOUR.  THE
EMPLOYEE'S REGULAR RATE OF PAY IS 44 CENTS AN HOUR (30 HOURS X 40 CENTS
20 HOURS X 50 CENTS/50 HOURS), AND HE IS ENTITLED TO RECEIVE $2.20 IN
ADDITION TO THE $22 HE HAS ALREADY RECEIVED, EQUAL TO THE NUMBER OF
OVERTIME HOURS (10) MULTIPLED BY ONE-HALF THE REGULAR RATE OF PAY (22
CENTS). 

IF IT WERE HELD THAT AN EMPLOYER, UNDER THE CONTRACT WE ARE HERE
CONSIDERING, COULD CREDIT HIMSELF ONLY WITH THE WAGES ACTUALLY PAID
DURING THE HOURS FOLLOWING THE FIRST 40, AN EMPLOYEE WHO PERFORMED 40
HOURS OF CONTRACT OVERTIME WORK EARLY IN THE WEEK AND 10 HOURS OF
STRAIGHT TIME AFTER THE FIRST 40 HOURS WOULD RECEIVE A LARGER AWARD
THAN AN EMPLOYEE WHO FIRST WORKED 10 STRAIGHT TIME HOURS AND THEN
WORKED 40 CONTRACT OVERTIME HOURS.  SUCH A VARIATION IN THE AMOUNT OF
STATUTORY EXCESS COMPENSATION WOULD NOT BE IN ACCORD WITH THE STATUTORY
PURPOSE. 

COMPARE, HOWEVER, RELEASES 1913 AND 1913(A) ISSUED BY THE
ADMINISTRATOR ON DECEMBER 1, 1942 AND JANUARY 5, 1943, WHICH PROVIDE
THAT AN EMPLOYER MAY IF HE SO ELECTS COMPUTE THE REGULAR RATE ON THE
BASIS OF THE NUMBER OF HOURS WORKED IN EXCESS OF 40.  IF THAT METHOD OF
COMPUTATION OF THE REGULAR RATE IS FOLLOWED, AN EMPLOYER COULD CREDIT
HIMSELF WITH THE WAGES ACTUALLY PAID DURING THE HOURS IN EXCESS OF 40. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE JACKSON AND MR.
JUSTICE BURTON CONCUR, DISSENTING. 

NO TIME IS A GOOD TIME NEEDLESSLY TO SAP THE PRINCIPLE OF COLLECTIVE
BARGAINING OR TO DISTURB HARMONIOUS AND FRUITFUL RELATIONS BETWEEN
EMPLOYERS AND EMPLOYEES BROUGHT ABOUT BY COLLECTIVE BARGAINING.  THE
JUDGMENT OF CONGRESS UPON ANOTHER DOCTRINAIRE CONSTRUCTION BY THIS
COURT OF THE FAIR LABOR STANDARDS ACT OUGHT TO ADMONISH AGAINST AN
APPLICATION OF THAT ACT IN DISREGARD OF INDUSTRIAL REALITIES.  PROMPTLY
AFTER THE EIGHTIETH CONGRESS CONVENED, CONGRESS PROCEEDED TO UNDO THE
DISASTROUS DECISIONS OF THIS COURT IN THE SO-CALLED PORTAL-TO-PORTAL
CASES.  WITHIN LESS THAN A YEAR OF THE DECISION IN ANDERSON V. MT.
CLEMENS POTTERY CO., 328 U.S. 680, BOTH HOUSES, BY OVERWHELMING VOTES
THAT CUT ACROSS PARTY LINES, PASSED, AND THE PRESIDENT SIGNED, THE
PORTAL-TO-PORTAL ACT OF 1947.  WHAT IS MOST PERTINENT TO THE IMMEDIATE
PROBLEM BEFORE US IS THE FACT THAT BECAUSE THE FAIR LABOR STANDARDS ACT
HAD BEEN "INTERPRETED JUDICIALLY IN DISREGARD OF LONG-ESTABLISHED
CUSTOMS, PRACTICES, AND CONTRACTS BETWEEN EMPLOYERS AND EMPLOYEES,"
CONGRESS HAD TO UNDO SUCH JUDICIAL MISCONSTRUCTION BECAUSE IT FOUND
THAT "VOLUNTARY COLLECTIVE BARGAINING WOULD BE INTERFERED WITH AND
INDUSTRIAL DISPUTES BETWEEN EMPLOYEES AND EMPLOYERS AND BETWEEN
EMPLOYEES AND EMPLOYEES WOULD BE CREATED."  FN1  BECAUSE THE PRESENT
DECISION IS HEEDLESS OF A LONG-STANDING AND SOCIALLY DESIRABLE
COLLECTIVE AGREEMENT AND IS CALCULATED TO FOSTER DISPUTES IN AN
INDUSTRY WHICH HAS BEEN HAPPILY AT PEACE FOR MORE THAN THIRTY YEARS, I
DEEM IT NECESSARY TO SET FORTH THE GROUNDS OF MY DISSENT. 

THE COURT'S OPINION IS WRITTEN QUITE IN THE ABSTRACT.  IT TREATS THE
WORDS OF THE FAIR LABOR STANDARDS ACT AS THOUGH THEY WERE PARTS OF A
CROSS-WORD PUZZLE.  THEY ARE, OF COURSE, THE MEANS BY WHICH CONGRESS
SOUGHT TO ELIMINATE SPECIFIC INDUSTRIAL ABUSES.  THE COURT DEALS WITH
THESE WORDS OF CONGRESS AS THOUGH THEY WERE UNRELATED TO THE FACTS OF
INDUSTRIAL LIFE, PARTICULARLY THE FACTS PERTAINING TO THE
LONGSHOREMEN'S INDUSTRY IN NEW YORK.  THE COURT'S OPINION COULD EQUALLY
WELL HAVE BEEN WRITTEN HAD THE HISTORY OF THAT INDUSTRY UP TO 1916 NOT
BEEN AN ANARCHIC EXPLOITATION OF THE NECESSITIES OF CASUAL LABOR FOR
WANT OF A STRONG UNION TO SECURE THROUGH EQUALITY OF BARGAINING POWER
FAIR TERMS OF EMPLOYMENT.  SEE, E.G., BARNES, THE LONGSHOREMEN (1915),
PASSIM.  THROUGH SUCH BARGAINING POWER THE AGREEMENT WAS SECURED WHICH
THE COURT NOW UPSETS.  THROUGH THIS AGREEMENT, THE RIGHTS AND DUTIES OF
THE INDUSTRY - THE MEMBERS OF THE UNION ON THE ONE HAND AND THE
EMPLOYERS ON THE OTHER HAND - WERE DEFINED, AND THE INTERESTS OF THE
MEN, THE EMPLOYERS, AND, NOT LEAST, THE COMMUNITY WERE TO BE ADJUSTED
IN A RATIONAL AND CIVILIZED WAY.  ON BEHALF OF A FEW DISSIDENT MEMBERS
OF THE UNION, BUT AGAINST THE PROTESTS OF THE UNION AND OF THE
EMPLOYERS AND OF THE GOVERNMENT, THE COURT DISLOCATES THIS ARRANGEMENT
AND IT DOES SO BY WHAT IT CONCEIVES TO BE THE COMPULSIONS OF SEC. 7(A)
OF THE FAIR LABOR STANDARDS ACT.  FN2  THIS IS TO ATTRIBUTE DESTRUCTIVE
POTENCY TO TWO SIMPLE ENGLISH WORDS - "REGULAR RATE" - FAR BEYOND WHAT
THEY DESERVE. 

EMPLOYMENT OF LONGSHOREMEN HAS TRADITIONALLY BEEN PRECARIOUS BECAUSE
DEPENDENT ON WEATHER, TRADE CONDITIONS, AND OTHER UNPREDICTABLES. 
DECASUALIZATION OF THEIR WORK HAS BEEN THEIR PRIME OBJECTIVE FOR AT
LEAST SIXTY YEARS.  THEY HAVE SOUGHT TO ACHIEVE THIS RESULT BY INDUCING
CONCENTRATION OF WORK DURING WEEKDAY DAYTIME HOURS. 

ONE OF THE STRONGEST INFLUENCES TO THIS END IS TO MAKE IT
ECONOMICALLY DESIRABLE.  AND SO THE UNION HAS SOUGHT AND ACHIEVED AN
ADDITION TO THE BASIC - THE REGULAR - RATE SUFFICIENTLY HIGH TO DETER
EMPLOYERS FROM ASSIGNING WORK OUTSIDE OF DEFINED PERIODS, EXCEPT IN
EMERGENCIES.  SINCE 1916, WHEN THE INTERNATIONAL LONGSHOREMENS
ASSOCIATION MADE ITS FIRST COLLECTIVE AGREEMENT WITH WATERFRONT
EMPLOYERS IN NEW YORK, A 50% PREMIUM ON NIGHT AND WEEKEND WORK HAS
GENERALLY PREVAILED.  IN THE INDUSTRY, THIS HAS BEEN COLLOQUIALLY
CALLED "OVERTIME" PAY. 

LONGSHOREMEN DO NOT USUALLY WORK CONTINUOUSLY FOR ONE EMPLOYER, BUT
SHIFT FROM ONE TO ANOTHER, WHEREVER EMPLOYMENT CAN BE FOUND.  THE FAIR
LABOR STANDARDS ACT DOES NOT ENTITLE AN EMPLOYEE WHO WORKS A TOTAL OF
OVER FORTY HOURS PER WEEK FOR SEVERAL EMPLOYERS, BUT NOT MORE THAN
FORTY HOURS FOR ANY ONE OF THEM, TO ANY OVERTIME PAY.  IN VIEW OF THE
PECULIARITIES OF THIS INDUSTRY, THEREFORE, THE ONLY EFFECTIVE WAY OF
PROMOTING THE AIM OF THE FAIR LABOR STANDARDS ACT, TO DETER A LONG
WORKWEEK, IS THAT DEVISED BY THE COLLECTIVE AGREEMENT, NAMELY, TO LIMIT
TO APPROXIMATELY THE STATUTORY MAXIMUM OF HOURS THE TOTAL LENGTH OF THE
PERIODS IN THE WEEK FOR WHICH ADDITIONAL PAY AMOUNTING TO OVERTIME
RATES NEED NOT BE PAID, REGARDLESS OF THE EMPLOYER FOR WHOM THE WORK IS
DONE. 

DURING THE PERIOD (1943-45) IN CONTROVERSY, THE WAGE RATES WERE
GOVERNED BY THE 1943 GENERAL CARGO AGREEMENT BETWEEN THE INTERNATIONAL
LONGSHOREMENS ASSOCIATION AND THE EMPLOYERS AT THE PORT OF NEW YORK. 
UNDER ITS TERMS, THE "BASIC WORKING WEEK," FOR WHICH "STRAIGHT TIME"
HOURLY RATES WERE PAID, INCLUDED THE HOURS OF 8 A.M. TO NOON, AND 1
P.M. TO 5 P.M., MONDAY THROUGH FRIDAY, AND 8 A.M. TO NOON ON SATURDAY. 
FN3  "OVERTIME" RATES, FOR "ALL OTHER TIME," WERE IN ALMOST ALL
INSTANCES  FN4  150% OF THE "STRAIGHT TIME" RATES.  THE 1943 AGREEMENT
EMBODIED THE PRACTICE OF THE INDUSTRY SINCE 1916, WHEREBY APPROXIMATELY
150% OF "STRAIGHT TIME" RATES WAS PAID FOR NIGHT AND WEEKEND WORK. 
THROUGH THE YEARS, WITH SUCCESSIVE RENEWALS OF AGREEMENTS BETWEEN THE
INTERNATIONAL LONGSHOREMENS ASSOCIATION AND THE EMPLOYERS, THE RATES OF
PAY HAVE RISEN AND THE LENGTH OF THE "BASIC WORKING WEEK" HAS
DECREASED.  THE RESPONDENTS, MEMBERS OF THE INTERNATIONAL LONGSHOREMENS
ASSOCIATION, DID A LARGE PART OF THEIR WORK FOR THE PETITIONERS OUTSIDE
OF THE ENUMERATED "STRAIGHT TIME" HOURS.  IN ACCORDANCE WITH THE
COLLECTIVE AGREEMENT, THEY RECEIVED, FOR WHATEVER WORK THEY DID DURING
THE "BASIC WORKING WEEK," "STRAIGHT TIME" PAY, AND FOR WORK AT ALL
OTHER TIMES, "OVERTIME" PAY, DRAWING SUCH "OVERTIME" PAY REGARDLESS OF
WHETHER SUCH WORK WAS OR WAS NOT PART OF THEIR FIRST FORTY HOURS OF
WORK IN THE WEEK.  FN5  THEY INSTITUTED THIS ACTION, FOR DOUBLE DAMAGES
UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT, 52 STAT. 1060, 1069,
29 U.S.C. SEC. 216(B), ASSERTING THAT NIGHT AND WEEKEND WORK HAD BEEN
SO FREQUENT AN INCIDENT OF THEIR EMPLOYMENT THAT THE CONTRACTUAL
"STRAIGHT TIME" PAY COULD NOT BE DEEMED THEIR "REGULAR RATE" OF PAY,
UNDER SEC. 7(A), BUT THAT THEIR "REGULAR RATE" WAS THE AVERAGE OF WHAT
THEY RECEIVED FOR ALL THEIR WORK FOR ANY ONE EMPLOYER, "STRAIGHT TIME"
AND "OVERTIME" TOGETHER.  ON THIS THEORY, REJECTED BY THE UNION, THE
EMPLOYERS, AND THE GOVERNMENT, BUT NOW ACCEPTED BY THE COURT, ALL WORK
BEYOND FORTY HOURS PER WEEK FOR ANY ONE EMPLOYER SHOULD HAVE BEEN PAID
FOR AT ONE AND ONE-HALF TIMES THIS AVERAGE.    THE STATUTORY PHRASE
"REGULAR RATE" IS NOT A TECHNICAL TERM.  THIRTEEN EXPRESSIONS USED IN
THE FAIR LABOR STANDARDS ACT WERE DEFINED BY CONGRESS IN SEC. 3. 
"REGULAR RATE" WAS LEFT UNDEFINED.  THE LEGISLATIVE HISTORY OF THE
PHRASE REVEALS ONLY THAT IT REPLACED "AGREED WAGE" IN AN EARLIER DRAFT,
BUT THERE IS NO INDICATION THAT THIS MODIFICATION HAD SIGNIFICANCE. 
NOR IS THERE ANY INDICATION THAT IN THE FIELD OF LABOR RELATIONS,
"REGULAR RATE" WAS A TECHNICAL TERM MEANING THE ARITHMETIC AVERAGE OF
WAGES IN ANY ONE WEEK.  IF ORDINARY ENGLISH WORDS ARE NOT LEGISLATIVELY
DEFINED, THEY MAY RIGHTLY BE USED BY THE PARTIES TO WHOM THEY ARE
ADDRESSED TO MEAN WHAT THE PARTIES THROUGH LONG USAGE HAVE UNDERSTOOD
THEM TO MEAN, WHEN THE WORDS CAN BEAR SUCH MEANING WITHOUT DOING
VIOLENCE TO ENGLISH SPEECH.  THE "REGULAR RATE" CAN THEREFORE BE
ESTABLISHED BY THE PARTIES TO A LABOR AGREEMENT, PROVIDED ONLY THAT THE
RATE SO ESTABLISHED TRULY REFLECTS THE NATURE OF THE AGREEMENT AND IS
NOT A SUBTERFUGE TO CIRCUMVENT THE POLICY OF THE STATUTE.  WALLING V.
YOUNGERMAN-REYNOLDS HARDWOOD CO., 325 U.S. 419, 424.  THUS THE PROBLEM
BEFORE US IS WHETHER THE DESIGNATION OF "STRAIGHT TIME RATES" FOR THE
"BASIC WORKING WEEK" IN THE LONGSHOREMEN'S COLLECTIVE AGREEMENT WAS AN
HONEST REFLECTION OF THE DISTINCTIVE CONDITIONS OF THIS INDUSTRY. 

WE ARE NOT CONCERNED WITH AN ABSTRACT "REGULAR RATE" OF PAY, FOR
INDUSTRY IS NOT.  THE "REGULAR RATE" IN A GIVEN INDUSTRY MUST BE
INTERPRETED IN THE LIGHT OF THE CUSTOMS AND PRACTICES OF THAT
INDUSTRY.  THE DISTINCTIVE CONDITIONS OF THE LONGSHOREMEN'S TRADE,
WHERE EMPLOYEES FREQUENTLY WORK DURING ONE WEEK FOR SEVERAL DIFFERENT
EMPLOYERS, ARE REFLECTED IN THE PROVISIONS WHICH THE INDUSTRY HAS MADE
IN DETERMINING RATES OF COMPENSATION.  THESE PROVISIONS WERE DESIGNED
TO SECURE FOR LONGSHOREMEN PROTECTION NOT ONLY FROM HARMFUL PRACTICES
COMMON TO MANY INDUSTRIES AND DEALT WITH SPECIFICALLY BY THE STATUTE,
BUT ALSO FROM THOSE PECULIAR TO THE LONGSHOREMEN'S INDUSTRY, REQUIRING
SPECIAL TREATMENT. 

THE RESPONDENTS' WAGES, AS PART OF A COMPREHENSIVE ARRANGEMENT FOR
THE BETTERMENT OF THE LONGSHOREMEN'S TRADE - ALSO COVERING HEALTH AND
SANITARY PROVISIONS, MINIMUM NUMBER OF MEN IN A GANG DOING SPECIFIED
TYPES OF WORK, "SHAPING TIME," MINIMUM HOURS OF EMPLOYMENT FOR THOSE
CHOSEN AT A "SHAPE," ARBITRATION, ETC. - WERE DETERMINED BY A
COLLECTIVE AGREEMENT ENTERED INTO BETWEEN THE UNION AND THE EMPLOYERS. 
THE FAIR LABOR STANDARDS ACT WAS "INTENDED TO AID AND NOT SUPPLANT THE
EFFORTS OF AMERICAN WORKERS TO IMPROVE THEIR OWN POSITION BY SELF
ORGANIZATION AND COLLECTIVE BARGAINING."  H.R. REP. NO. 1452, 75TH
CONG., 1ST SESS., P. 9.  "THE RIGHT OF INDIVIDUAL OR COLLECTIVE
EMPLOYEES TO BARGAIN WITH THEIR EMPLOYERS CONCERNING WAGES AND HOURS IS
RECOGNIZED AND ENCOURAGED BY THIS BILL.  IT IS NOT INTENDED THAT THIS
LAW SHALL INVADE THE RIGHT OF EMPLOYER AND EMPLOYEE TO FIX THEIR OWN
CONTRACTS OF EMPLOYMENT, WHEREVER THERE CAN BE ANY REAL, GENUINE
BARGAINING BETWEEN THEM.  IT IS ONLY THOSE LOWWAGE AND LONG-WORKING
HOUR INDUSTRIAL WORKERS, WHO ARE THE HELPLESS VICTIMS OF THEIR OWN
BARGAINING WEAKNESS, THAT THIS BILL SEEKS TO ASSIST TO OBTAIN A MINIMUM
WAGE."  SEN. REP. NO. 884, 75TH CONG., 1ST SESS., PP. 3-4.  FN6  SUCH
ASSURANCES WERE NECESSARY TO ALLAY THE TRADITIONAL HOSTILITY OF
ORGANIZED LABOR TO LEGISLATIVE WAGE-FIXING.  THE COURT NOW HOLDS
UNLAWFUL A COLLECTIVE AGREEMENT ENTERED INTO BY A STRONG UNION,
GOVERNING THE WIDE RANGE OF THE LONGSHOREMEN'S EMPLOYMENT
RELATIONSHIPS, AND ESPECIALLY DESIGNED TO RESTRICT THE HOURS OF WORK
AND TO REQUIRE THE SAME PREMIUM AS THAT GIVEN BY THE STATUTE FOR WORK
DONE OUTSIDE OF NORMAL HOURS BUT WITHIN THE STATUTORY LIMIT.  THE COURT
SUBSTITUTES AN ARRANGEMENT REJECTED BOTH BY THE UNION AND THE EMPLOYERS
AS INIMICAL TO THE NEEDS OF THEIR INDUSTRY AND SUBVERSIVE OF THE
PROCESS OF COLLECTIVE BARGAINING UNDER WHICH THE INDUSTRY HAS BEEN
CARRIED ON.  BUT, WE ARE TOLD, THESE UNTOWARD CONSEQUENCES ARE
COMPELLED BY A MERE READING OF WHAT CONGRESS HAS WRITTEN. 

ON THE QUESTION YOU ASK DEPENDS THE ANSWER YOU GET.  IF THE PROBLEM
IS CONCEIVED OF MERELY AS A MATTER OF ARITHMETIC YOU GET AN
ARITHMETICAL ANSWER.  IF THE PROBLEM IS PUT IN THE CONTEXT OF THE
INDUSTRY TO WHICH IT RELATES, AND MEANING IS DERIVED FROM AN
UNDERSTANDING OF THE PROBLEMS OF THE INDUSTRIAL COMMUNITY OF WHICH THIS
IS JUST ONE ASPECT, A TOTALLY DIFFERENT SET OF CONSIDERATIONS MUST BE
RESPECTED.  THE DEFENDANTS DERIVED THEIR RIGHTS FROM THE ENTIRE
AGREEMENT AND NOT FROM A PART MUTILATED BY ISOLATION.  IF THE PARTIES
HAD WRITTEN OUT WITH UNAMBIGUOUS EXPLICITNESS THAT THE EXTRA WAGE IN
THE SCHEDULED PERIODS IS TO BE DEEMED A DETERRENT AGAINST WORK DURING
THOSE PERIODS AND IS NOT TO BE DEEMED A BASIS FOR CALCULATING TIME AND
A HALF AFTER THE FORTY HOURS, I CANNOT BELIEVE THAT THIS COURT WOULD
SAY THAT SUCH AN AGREEMENT, MADE IN PALPABLE GOOD FAITH, IS OUTLAWED BY
THE FAIR LABOR STANDARDS ACT. 

HOW IS COMPENSATION FOR SERVICES ABOVE THE LIMITS SET BY THE ACT TO
BE RECKONED?  THE STANDARD FOR COMPENSATION COULD BE DETERMINED (1) BY
SPECIFIC STATUTORY TERMS; (2) BY COLLECTIVE AGREEMENT; OR (3) BY
JUDICIAL CONSTRUCTION IN DEFAULT OF EITHER. 

CONGRESS COULD HAVE LAID DOWN A HARD AND FAST RULE, COULD HAVE
EXPRESSED A PURELY ARITHMETIC FORMULA.  IT COULD HAVE SAID THAT THE
RATE ON WHICH TIME AND A HALF IS TO BE RECKONED IS TO BE FOUND BY
DIVIDING THE TOTAL WAGE BY THE HOURS WORKED.  IT WOULD NOT EVEN HAVE
BEEN NECESSARY TO SPELL ALL THIS OUT.  CONGRESS COULD HAVE CONVEYED ITS
THOUGHT BY USING THE PHRASE "AVERAGE" INSTEAD OF "REGULAR."  AND WHERE
WE HAVE NOTHING ELSE TO GO ON, EXCEPT THE TOTAL WAGE AND THE HOURS, IT
IS REASONABLE ENOUGH THUS TO ASCERTAIN THE REGULAR RATE.  BUT WHEN
PARTIES TO A COMPLICATED INDUSTRIAL AGREEMENT, WITH FULL UNDERSTANDING
OF DETAILS NOT PECULIARLY WITHIN THE COMPETENCE OF JUDGES, INDICATE
WHAT THE REGULAR RATE IS FOR PURPOSES OF CONTINGENCIES AND ADJUSTMENTS
SATISFIED OTHERWISE THAN BY A PURELY ARITHMETIC DETERMINATION OF THE
RATE OF WAGES, NOTHING IN THE HISTORY OF THE LAW OR ITS LANGUAGE
PRECLUDES SUCH DESIRABLE CONSENSUAL ARRANGEMENTS, PROVIDED, OF COURSE,
THAT THE PARTIES DEAL AT ARM'S LENGTH, AND THAT THE DEFINED "REGULAR"
RATE IS NOT AN ARTIFICE FOR CIRCUMVENTING THE PLAIN COMMANDS OF THE
LAW.  SUCH AN ARTIFICE WOULD OBVIOUSLY NOT BE USED IN A CONTRACT MADE
BY WORKERS IN THEIR OWN INTERESTS REPRESENTED BY A UNION STRONG ENOUGH
TO PURSUE THOSE INTERESTS.  REGULARITY IN THIS CONTEXT IMPLIES OF
COURSE A CONTROLLING NORM FOR DETERMINING WAGES WHICH, THOUGH AGREED
UPON BETWEEN THE PARTIES, IS CONSISTENT WITH, AND NOT HOSTILE TO, THE
UNDERLYING AIMS OF THE OVERTIME PROVISION OF THE FAIR LABOR STANDARDS
ACT.  DISCOURAGEMENT OF OVERWORK AND OF UNDEREMPLOYMENT EMPLOYMENT ARE
THE AIMS.  THE LONGSHOREMEN'S COLLECTIVE AGREEMENT SERVES THE SAME
PURPOSE AS DOES THE STATUTE. 

THE FAIR LABOR STANDARDS ACT IS NOT A LEGISLATIVE CODE FOR THE
GOVERNMENT OF INDUSTRY.  IT SETS A FEW MINIMUM STANDARDS, LEAVING THE
MAIN FEATURES IN THE EMPLOYMENT RELATION FOR VOLUNTARY ARRANGEMENT
BETWEEN THE PARTIES.  WHERE STRONG UNIONS EXIST, RELATIVELY LITTLE OF
THE EMPLOYMENT RELATION WAS TO BE ENFORCED BY LAW.  MOST OF IT WAS LEFT
TO BE REGULATED BY FREE CHOICE AND USAGE AS EXPRESSED AND UNDERSTOOD BY
THE UNIONS AND EMPLOYERS.  CONGRESS DID NOT PROVIDE FOR INCREASE IN
BASIC RATES EXCEPT TO THE LIMITED EXTENT OF ESTABLISHING MINIMUM
WAGES.  THE INCLUSION OF SUCH MINIMUM WAGES IS IN ITSELF A RECOGNITION
BY CONGRESS OF THE DISTINCTION BETWEEN WHAT IT SOUGHT TO CHANGE AND
WHAT IT SOUGHT TO USE ONLY AS THE BASIS FOR THE COMPUTATION OF AN
OVERTIME PERCENTAGE. 

THE CLAIM OF THE FEW MEMBERS IN OPPOSITION TO THE UNION IS PREDICATED
UPON AN AMOUNT SUPERADDED FOR REASONS PECULIAR TO THE STEVEDORING
INDUSTRY TO THE WAGE WHICH THE PARTIES TO THE AGREEMENT IN PERFECT GOOD
FAITH ESTABLISHED AS THE REGULAR RATE.  THE UNION MEMBERS SECURED THIS
EXTRA WAGE AS PART OF THE ENTIRE SCHEME OF THE COLLECTIVE AGREEMENT. 
FN7  THIS PREMIUM IS NOT TO BE DETACHED FROM THE SCHEME AS THOUGH IT
WERE A RATE FIXED BY LAW AS A BASIS FOR CALCULATING THE STATUTE'S
NARROWLY LIMITED OVERTIME PROVISION.  SO LONG AS ITS MINIMUM WAGE
PROVISIONS WERE COMPLIED WITH, THE STATUTE DID NOT SEEK TO CHANGE THE
TRUE BASIC OR "REGULAR" RATE OF PAY IN ANY INDUSTRY, FROM WHICH RATE
ALL STATUTORY OVERTIME IS TO BE COMPUTED.  THERE IS NO JUSTIFICATION
FOR INTERPRETING THE STATUTORY TERM AS INCLUDING ELEMENTS CLEARLY
UNDERSTOOD IN THE INDUSTRY TO BE AS FOREIGN TO THE "REGULAR RATE" AS
ANY STRICTLY OVERTIME RATES.  HERE THE EXTRA WAGE IS THE INDUSTRY'S
OVERTIME RATE FOR WORK WHICH MIGHT NOT BE WITHIN THE OVERTIME PERIOD OF
THE FAIR LABOR STANDARDS ACT, BUT WAS WITHIN THE SCHEDULE OF THE
COLLECTIVE AGREEMENT FOR EXTRA WAGES, NOT BECAUSE THE WORK WAS OVERTIME
IN THE ORDINARY INDUSTRIAL SENSE BUT BECAUSE IT WAS AT PERIODS DURING
WHICH ALL WORK WAS SOUGHT TO BE DISCOURAGED BY MAKING IT COSTLY. 
BECAUSE THE UNION SECURED FOR ITS MEN AN EXTRA WAGE EVEN FOR NOT MORE
THAN FORTY WORKING HOURS, THE SCOPE OF THE FAIR LABOR STANDARDS ACT AS
TO OVERTIME IS NOT ENLARGED.  ONLY FOR A WORK-WEEK LONGER THAN FORTY
HOURS IS AN EMPLOYEE TO BE PAID ONE AND A HALF TIMES "THE REGULAR
RATE," AND NOTHING IN THE ACT PRECLUDES AGREEMENT BETWEEN THE PARTIES
AS TO WHAT THE REGULAR RATE SHOULD BE, PROVIDED SUCH AGREEMENT IS
REACHED IN GOOD FAITH AND AS A FAIR BARGAIN.  THE PRESUPPOSITION OF THE
ACT WAS THAT VOLUNTARY ARRANGEMENTS THROUGH COLLECTIVE BARGAINING
SHOULD COVER AN AREA MUCH WIDER, AND ECONOMICALLY MORE ADVANTAGEOUS,
THAN THE MINIMUM STANDARDS FIXED BY THE ACT.  THE TRADITIONAL PROCESS
OF COLLECTIVE BARGAINING WAS NOT TO BE DISTURBED WHERE IT EXISTED.  IT
WAS TO BE EXTENDED BY ADVANCING THE ECONOMIC POSITION OF WORKERS IN NON
UNIONIZED INDUSTRIES AND IN INDUSTRIES WHERE UNIONS WERE WEAK, BY
FURTHERING EQUALITY IN BARGAINING POWER.  IT CERTAINLY WAS NOT THE
PURPOSE OF THE ACT TO PERMIT THE WEAKENING OF A STRONG UNION BY
EVISCERATING JUDICIAL CONSTRUCTION OF THE TERMS OF A COLLECTIVE
AGREEMENT CONTRARY TO THE MEANING UNDER WHICH THE INDUSTRY HAD LONG
BEEN OPERATING AND FOR WHICH THE UNION IS EARNESTLY CONTENDING. 

THERE CAN BE NO QUARREL WITH THE GENERALITY THAT MERELY BECAUSE THE
CONDITIONS OF EMPLOYMENT ARE ARRIVED AT THROUGH COLLECTIVE BARGAINING
AN ARRANGEMENT WHICH VIOLATES THE STATUTE NEED NOT BE UPHELD.  BUT THIS
DOES NOT MEAN THAT IN DETERMINING WHETHER THE CONTRACTUAL DESIGNATION
OF CERTAIN HOURS AS "BASIC" IS HONEST AND FAIR, WE CANNOT CONSIDER THE
FACT THAT THE CONTRACT WAS ONE ENTERED INTO BY A POWERFUL UNION,
FAMILIAR WITH THE NEEDS OF ITS MEMBERS AND THE PECULIAR CONDITIONS OF
THE INDUSTRY, AND FULLY EQUIPPED TO SAFEGUARD ITS MEMBERSHIP.  TO VIEW
SUCH A CONTRACT WITH A HOSTILE EYE IS SCARCELY TO CARRY OUT THE PURPOSE
OF CONGRESS IN ENACTING THE FAIR LABOR STANDARDS ACT. 

THIS COURT HAS SUSTAINED THE POWER OF "EMPLOYER AND EMPLOYEE  ...  TO
ESTABLISH (THE) REGULAR RATE AT ANY POINT AND IN ANY MANNER THEY SEE
FIT," WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO., 325 U.S. 419, 424,
PROVIDED THAT THE REGULAR RATE IS NOT COMPUTED "IN A WHOLLY UNREALISTIC
AND ARTIFICIAL MANNER SO AS TO NEGATE THE STATUTORY PURPOSES."  WALLING
V. HELMERICH & PAYNE, 323 U.S. 37, 42.  IF WE WERE CONFRONTED WITH AN
AGREEMENT WHICH DID NOT REFLECT THE TRUE PRACTICE IN THE INDUSTRY, IF
DESPITE THE DESIGNATION OF CERTAIN HOURS AS "BASIC" AND OTHERS AS
"OVERTIME," THE DISTINCTION WAS NOT ACTUALLY OBSERVED, BUT WORK WAS
DONE AT ALL TIMES INDISCRIMINATELY, SO THAT WHAT THE CONTRACT
DESIGNATED AS "OVERTIME" PAY WAS IN REALITY A "SHIFT DIFFERENTIAL,"
DESIGNED TO INDUCE EMPLOYEES TO WORK AT LESS PLEASANT HOURS, RATHER
THAN TO DETER EMPLOYERS FROM CARRYING ON AT SUCH HOURS, THE LABELS
ATTACHED BY THE PARTIES TO THE VARIOUS PERIODS OF WORK WOULD NOT BE
ALLOWED TO CONCEAL THE TRUE FACTS.  WE HAVE AGAIN AND AGAIN PIERCED
THROUGH SUCH DECEPTIVE FORMS.  SEE, E.G., WALLING V. HELMERICH & PAYNE,
323 U.S. 37; WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO., 325 U.S. 419;
WALLING V. HARNISCHFEGER CORP., 325 U.S. 427; 149 MADISON AVE. CORP. V.
ASSELTA, 331 U.S. 199.  BUT HERE THERE IS NO SUGGESTION THAT THE
AGREEMENT MISLABELED THE TRUE CIRCUMSTANCES OF THE EMPLOYMENT
RELATIONSHIP.  AND IT IS SIGNIFICANT THAT IN NO CASE IN WHICH WE FOUND
THAT THE TERMS USED HAD DISTORTED THE TRUE FACTS DID A UNION WHICH HAD
MADE THE CONTRACT APPEAR TO DEFEND IT. 

THE FACT THAT SOME WORK WAS DONE AT ODD HOURS DOES NOT MISREPRESENT
THE REGULAR SITUATION, PROVIDED THAT SUCH WORK WAS EXCEPTIONAL AND WAS
RESTRICTED IN FREQUENCY BY THE OVERTIME PROVISIONS OF THE AGREEMENT, SO
THAT WHAT THE AGREEMENT TREATED AS REGULAR AND WHAT AS EXCEPTIONAL WERE
TRULY JUST THAT.  WE TURN THEN TO THE ACTUAL EXPERIENCE, IN
REPRESENTATIVE PERIODS, OF THE PORT OF NEW YORK LONGSHOREMEN.  THE
STIPULATIONS, EXHIBITS, AND FINDINGS OF THE DISTRICT COURT, ALL
DEMONSTRATE THE EXCEPTIONAL NATURE OF "OVERTIME" WORK.  FN8  IT IS ALSO
APPARENT THAT SUCH NIGHT WORK AS WAS DONE WAS USUALLY DONE IN ADDITION
TO, RATHER THAN INSTEAD OF, DAYTIME WORK.  THE INCREASED COMPENSATION
FOR SUCH WORK THEREFORE SERVED PRINCIPALLY TO ACHIEVE THE SAME RESULT
AS DID THE STATUTE - NAMELY, TO AFFORD A HIGHER RATE OF COMPENSATION
FOR LONG HOURS.  IN PEACETIME, NIGHT WORK WAS EXTREMELY RARE FOR ANYONE
AS A RECURRING EXPERIENCE, AND EVEN DURING THE EXIGENCIES OF WAR ONLY A
SMALL MINORITY WAS PRINCIPALLY SO OCCUPIED. 

THE ACCURACY OF THE DESIGNATION OF ONE PERIOD OR AMOUNT OF WORK AS
"BASIC" IS NOT CONTRADICTED BY THE FACT THAT SOME WORK MAY HAVE BEEN
DONE AT OTHER TIMES AS WELL.  THE VERY REFERENCE IN ANY COLLECTIVE
AGREEMENT TO OVERTIME PAY FOR UNUSUAL HOURS IMPLIES THAT SOME SUCH WORK
IS ANTICIPATED.  A PROTECTIVE TARIFF NEED NOT BE SO HIGH AS TO EXCLUDE
EVERY LAST ITEM.  THE STATISTICS IN THE MARGIN AMPLY JUSTIFY THE TRIAL
JUDGE'S CONCLUSION THAT THE DESIGNATIONS IN THE COLLECTIVE AGREEMENT
WERE NOT UNREAL OR ARTIFICIAL WHEN THE AGREEMENT WAS ENTERED INTO, AND
DID NOT BECOME SO EVEN AT THE HEIGHT OF THE ABNORMAL WARTIME EFFORT. 
OF COURSE, EVEN IF MOST OF THE WORK OF LONGSHOREMEN WAS PERFORMED
DURING "STRAIGHT TIME" HOURS, IF THE 50% INCREMENT FOR WORK AT OTHER
TIMES WAS NOT A TRUE OVERTIME PAYMENT, BUT A SHIFT DIFFERENTIAL, THIS
HIGHER RATE OF PAY WOULD HAVE TO BE TAKEN INTO ACCOUNT IN ESTABLISHING
THE "REGULAR RATE" OF THE RESPONDENTS.  BUT THE DISTRICT COURT FOUND
THAT THIS PREMIUM CONSTITUTED TRUE OVERTIME.  AS THAT COURT STATED
(FINDING 28), A SHIFT DIFFERENTIAL 

"IS AN AMOUNT ADDED TO THE NORMAL RATE OF COMPENSATION, WHICH IS
LARGE ENOUGH TO ATTRACT WORKERS TO WORK DURING WHAT ARE REGARDED AS
LESS DESIRABLE HOURS OF THE DAY, AND YET NOT SO LARGE AS TO INHIBIT AN
EMPLOYER FROM THE USE OF MULTIPLE SHIFTS," 

WHILE A TRUE OVERTIME PREMIUM 

"IS AN ADDITION TO THE NORMAL RATE OF COMPENSATION, DESIGNED TO
INHIBIT OR DISCOURAGE AN EMPLOYER FROM USING HIS EMPLOYEES BEYOND A
SPECIFIED NUMBER OF HOURS DURING THE WEEK OR DURING CERTAIN SPECIFIED
HOURS OF THE DAY.  A SAFE GUIDE FOR DISTINGUISHING BETWEEN THE SHIFT
DIFFERENTIAL AND THE OVERTIME PREMIUM IS BY THE DEGREE OF SPREAD
BETWEEN THE NORMAL RATE AND THE PENALTY RATE.  WHEREAS A SHIFT
DIFFERENTIAL IS USUALLY 5 OR 10 CENTS PER HOUR, THE OVERTIME PREMIUM IS
GENERALLY 50 PER CENT OF THE NORMAL RATE."  THESE FINDINGS OF THE
DISTRICT COURT ARE AMPLY SUPPORTED BY THE TESTIMONY AND BY INDUSTRIAL
STATISTICS.  SEE 65 MONTHLY LABOR REVIEW 183-85; WAGE STRUCTURE:
MACHINERY (BUREAU OF LABOR STATISTICS 1945) P. 21; ID. (1946) P. 38;
WAGE STRUCTURE:  FOUNDRIES (BUREAU OF LABOR STATISTICS 1945) TABLES 32,
33; ID. (1946) PP. 44-45.  AND COMPARE THE DIRECTIVES OF THE ECONOMIC
STABILIZATION DIRECTOR DATED MARCH 8, 1945, AND APRIL 24, 1945,
LIMITING THE SHIFT DIFFERENTIALS WHICH THE NATIONAL WAR LABOR BOARD
COULD APPROVE TO FOUR CENTS PER HOUR FOR THE SECOND SHIFT AND SIX OR
EIGHT CENTS PER HOUR FOR THE THIRD.  CCH LABOR LAW SERVICE, VOL. 1A,
PP10,034.11, 10,462.  APPLYING THE TEST BASED ON FINDING 28, AND
FINDING ALSO THAT THE DIFFERENTIAL HAD IN FACT SERVED TO DETER NIGHT
AND WEEK-END WORK, THE DISTRICT COURT HELD THAT THE FIFTY PER CENT
INCREMENT WAS TRUE OVERTIME AND NOT A SHIFT DIFFERENTIAL. 

THE COURT PURPORTS TO ACCEPT THE FINDINGS OF THE DISTRICT COURT, AND
YET IT CONCLUDES THAT THE DISTRICT COURT ERRED IN FINDING THAT THE
FIFTY PER CENT WAS BY WAY OF OVERTIME AND NOT A SHIFT DIFFERENTIAL. 
THE DISTRICT COURT, TO BE SURE, DID NOT EXPLICITLY STATE THAT THE
PREMIUM WAS NOT A SHIFT DIFFERENTIAL IN ONE OF ITS FORMAL FINDINGS OF
FACT.  IT DID SO STATE, HOWEVER, IN ITS OPINION AND THIS CONCLUSION
DEPENDED ON THE STATEMENTS QUOTED ABOVE FROM FINDING 28 AS TO THE
CHARACTERISTICS INDICATIVE OF TRUE OVERTIME AND SHIFT DIFFERENTIALS.  I
FAIL TO SEE HOW THIS COURT CAN ACCEPT FINDING 28 AND REJECT THE
CONCLUSION THAT THE CONTRACTUAL "OVERTIME" WAS NOT A SHIFT
DIFFERENTIAL. 

FINDINGS OF LOWER COURTS ARE TO BE DISREGARDED ONLY IF NOT
SUBSTANTIATED BY THE EVIDENCE.  HERE, THE EVIDENCE SUPPORTING THE
FINDING WAS IMPRESSIVE, AND YET THE COURT STRAINS TO OVERTURN IT TO
REACH A RESULT NOT URGED AS SOCIALLY DESIRABLE BUT ONLY AS DEMANDED BY
LEGAL DIALECTIC.  FN9 

THE COURT HOLDS THAT EVEN IF THE COLLECTIVE AGREEMENT ACCURATELY
DESIGNATED THE REGULAR AND OVERTIME WORK OF THE GENERALITY OF
LONGSHOREMEN, IT CANNOT APPLY TO THE RESPONDENTS, BECAUSE OF THEIR
PARTICULAR WORKING HOURS FOR A STRETCH OF THE WARTIME PERIOD HERE IN
CONTROVERSY.  THIS CONTENTION EXPRESSES AN ATTITUDE TOWARD THE PROCESS
OF COLLECTIVE BARGAINING WHICH, IF ACCEPTED, WOULD UNDERMINE ITS
EFFICACY.  IT SUBJECTS THE COLLECTIVE AGREEMENT TO THE HAZARDS OF SELF
SERVING INDIVIDUALISM, WHICH MUST INEVITABLY WEAKEN THE FORCE OF SUCH
AGREEMENTS FOR IMPROVING THE CONDITIONS OF LABOR AND FORWARDING
INDUSTRIAL PEACE.  HERE, THE VERY INCREASED RATES OF PAY WHICH THE
RESPONDENTS RECEIVED FOR EXCEPTIONAL NIGHT AND WEEKEND WORK WAS THE
RESULT OF THE CONTRACT WHICH THEY NOW SEEK TO DISAVOW. 

COLLECTIVE BARGAINING BETWEEN POWERFUL COMBINATIONS OF EMPLOYERS AND
EMPLOYEES IN AN ENTIRE INDUSTRY, EACH GROUP CONSCIOUS OF WHAT IT SEEKS
AND HAVING NOT MERELY RESPONSIBILITY FOR ITS MEMBERSHIP BUT RESOURCEFUL
EXPERIENCE IN DISCHARGING IT, IS A FORM OF INDUSTRIAL GOVERNMENT
WHEREBY SELF-IMPOSED LAW SUPPLANTS FORCE.  CF. FEIS, THE SETTLEMENT OF
WAGE DISPUTES (1921) C. II.  THIS IS AN ACCURATE DESCRIPTION OF THE
PROCESS BY WHICH THE STEVEDORING INDUSTRY HAS SERVED THE GREATEST PORT
IN THE UNITED STATES.  YET THE COURT REJECTS THE MEANING WHICH THE
PARTIES TO THE AGREEMENT HAVE GIVEN IT AND SAYS IT MEANS WHAT THE
PARTIES REJECT.  OFTEN, TOO OFTEN, INDUSTRIAL STRIFE IS ENGENDERED BY
CONFLICTING VIEWS BETWEEN EMPLOYERS AND EMPLOYEES AS TO THE MEANING OF
A COLLECTIVE AGREEMENT.  HERE THE INDUSTRY AS AN ENTIRETY - THE UNION
AND THE EMPLOYERS' ASSOCIATION - IS IN COMPLETE ACCORD ON THE MEANING
OF THE TERMS UNDER WHICH THE INDUSTRY HAS LIVED FOR THIRTY YEARS AND
UNDER WHICH ALONE, THE PARTIES TO THE AGREEMENT INSIST, THEY CAN
CONTINUE TO LIVE PEACEFULLY.  BUT A FEW MEMBERS OF THE UNION ASSERT AN
INTEREST DIFFERENT FROM THAT OF THEIR FELLOWS - SOME THIRTY THOUSAND -
AND URGE THEIR PRIVATE MEANING EVEN THOUGH THIS CARRIES POTENTIAL
DISLOCATION TO THE VERY AGREEMENT TO WHICH THEY APPEAL FOR THEIR
RIGHTS.  UNLESS IT BE JUDICIALLY ESTABLISHED THAT UNION OFFICERS DO NOT
KNOW THEIR RESPONSIBILITY OR HAVE BETRAYED IT, SO THAT WHAT APPEARS TO
BE A CONTRACT ON BEHALF OF THEIR MEN IS MERE PRETENSE IN THAT IT DOES
NOT EXPRESS THE TRUE INTERESTS OF THE UNION AS AN ENTIRETY, THIS COURT
HAD BETTER LET THE UNION SPEAK FOR ITS MEMBERS AND REPRESENT THEIR
WELFARE, INSTEAD OF RECONSTRUCTING, AND THEREBY JEOPARDIZING,
ARRANGEMENTS UNDER WHICH THE UNION HAS LIVED AND THRIVED AND BY WHICH
IT WISHES TO ABIDE.  FN10 

COLLECTIVE AGREEMENTS PLAY TOO VALUABLE A PART IN THE GOVERNMENT OF
INDUSTRIAL RELATIONSHIPS TO BE CAST ASIDE AT THE WHIM OF A FEW UNION
MEMBERS WHO SEEK TO RETAIN THEIR BENEFITS BUT WISH TO DISAVOW WHAT THEY
REGARD AS THEIR BURDENS.  UNLESS THE COLLECTIVE AGREEMENT IS HELD TO
DETERMINE THE INCIDENTS OF THE EMPLOYMENT OF THE ENTIRETY FOR WHOM IT
WAS SECURED, IT CEASES TO PLAY ITS GREAT ROLE AS AN INSTRUMENT OF
INDUSTRIAL DEMOCRACY.  CF. RICE, COLLECTIVE LABOR AGREEMENTS IN
AMERICAN LAW, 44 HARV. L. REV. 572; WOLF, THE ENFORCEMENT OF COLLECTIVE
LABOR AGREEMENTS:  A PROPOSAL, 5 LAW & CONTEMP.  PROB.  273; HAMILTON,
COLLECTIVE BARGAINING, 3 ENCYC.  SOC.  SCI. 628, 630. 

BUT FURTHERMORE, AS I READ THE COURT'S OPINION, IT IS NOT LIMITED IN
APPLICATION TO THOSE EMPLOYEES MOST OR ALL OF WHOSE WORK WAS DONE AT
NIGHT, BUT EXTENDS EQUALLY TO THOSE WHO WORKED CHIEFLY DURING THE
"BASIC WORKING WEEK," BUT ALSO DID A FEW HOURS OF WORK AT OTHER TIMES. 
EVEN WHERE A LONGSHOREMAN WORKED PRECISELY FORTY HOURS OF "STRAIGHT
TIME," FOLLOWED BY A FEW HOURS OF "OVERTIME" IN THE SAME WEEK, PAYMENT
OF THE APPROPRIATE WAGES AS DETERMINED BY THE COLLECTIVE AGREEMENT
WOULD NOT SATISFY THE COURT'S TEST THAT ONLY SUCH EXTRA PAY AS IS GIVEN
"FOR WORK BECAUSE OF PREVIOUS WORK FOR A SPECIFIED NUMBER OF HOURS IN
THE WORKWEEK OR WORKDAY" CAN BE REGARDED AS TRUE OVERTIME PAY.  TO
REQUIRE SPECIFICATION IN AN INDUSTRY WHERE THE ONLY THING CERTAIN IS
UNCERTAINTY IS TO COMMAND THE IMPOSSIBLE.  THERE IS NO JUSTIFICATION
FOR SUCH A TEST IN THE STATUTE, ITS HISTORY, INDUSTRIAL PRACTICE,
JUDICIAL DECISION, OR ADMINISTRATIVE INTERPRETATIONS.  FN12 

IN SHORT, THIS IS NOT A DECISION THAT WHERE THE PREDOMINANT WORK OF
AN EMPLOYEE IS PAID FOR AT "OVERTIME" RATES, SUCH RATES ENTER INTO
COMPUTATION OF THE "REGULAR RATE," BUT RATHER THAT WHERE THE CONDITIONS
IN AN INDUSTRY ARE SUCH THAT THE NUMBER OF "STRAIGHT TIME" HOURS CANNOT
BE PRECISELY PREDICTED IN ADVANCE, AN ARRANGEMENT FOR TIME AND A HALF
FOR ALL OTHER HOURS CANNOT BE LEGAL, REGARDLESS OF HOW UNUSUAL WORK
OUTSIDE OF THE "STRAIGHT TIME" HOURS MAY BE. 

BUT WHETHER OR NOT THE COURT MEANS TO GO AS FAR AS IT SEEMS TO GO,
AND EVEN IF ITS HOLDING IS LATER LIMITED TO THE NARROW SITUATION NOW
BEFORE US, I CANNOT AGREE WITH ITS CONCLUSION.  IT SEEMS TO ME THAT THE
"REGULAR RATE" OF PAY FOR PORT OF NEW YORK LONGSHOREMEN WAS THE
"STRAIGHT TIME" SCALE PROVIDED FOR BY THE UNION CONTRACT, AND THAT THIS
WAS TRUE FOR THE WHOLE UNION, INCLUDING THE INDIVIDUAL RESPONDENTS. 
FAR FROM RECEIVING LESS OVERTIME THAN THE STATUTE REQUIRED, THE
RESPONDENTS WERE, THROUGH THE AGREEMENT, THE RECIPIENTS OF MUCH MORE. 
TO CALL THEIR DEMAND ONE FOR "OVERTIME PYRAMIDED ON OVERTIME" IS NOT TO
USE A CLEVER CATCHPHRASE, BUT TO DESCRIBE FAIRLY THE TRUE NATURE OF
THEIR CLAIM. 

I WOULD REINSTATE THE JUDGMENTS OF THE DISTRICT COURT. 

FN1  SECTION 1(A), PORTAL-TO-PORTAL ACT OF 1947, 61 STAT. 84, 29
U.S.C. SEC. 251(A). 

FN2  "NO EMPLOYER SHALL  ...  EMPLOY ANY OF HIS EMPLOYEES  ...  FOR A
WORKWEEK LONGER THAN FORTY HOURS  ...  UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF (FORTY HOURS) AT A RATE
NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE IS
EMPLOYED."  52 STAT. 1060, 1063, 29 U.S.C. SEC. 207(A). 

FN3  "2(A)  THE BASIC WORKING DAY SHALL CONSIST OF 8 HOURS, AND THE
BASIC WORKING WEEK SHALL CONSIST OF 44 HOURS.  MEN SHALL WORK ANY NIGHT
OF THE WEEK, OR ON SUNDAYS, HOLIDAYS, OR SATURDAY AFTERNOONS, WHEN
REQUIRED.  ON SATURDAY NIGHT, WORK SHALL BE PERFORMED ONLY TO FINISH A
SHIP FOR SAILING ON SUNDAY, OR TO HANDLE MAIL OR BAGGAGE. 

"(B)  MEAL HOURS SHALL BE FROM 6 A.M. TO 7 A.M., FROM 12 NOON TO 1
P.M., FROM 6 P.M. TO 7 P.M., AND FROM 12 MIDNIGHT TO 1 A.M. 

     .         .         .         .         . 

"3(A)  STRAIGHT TIME RATE SHALL BE PAID FOR ANY WORK PERFORMED FROM 8
A.M. TO 12 NOON AND FROM 1 P.M. TO 5 P.M., MONDAY TO FRIDAY, INCLUSIVE,
AND FROM 8 A.M. TO 12 NOON SATURDAY. 

"(B)  ALL OTHER TIME, INCLUDING MEAL HOURS AND THE LEGAL HOLIDAYS
SPECIFIED HEREIN, SHALL BE CONSIDERED OVERTIME AND SHALL BE PAID FOR AT
THE OVERTIME RATE. 

"(C)  THE FULL MEAL HOUR RATE SHALL BE PAID IF ANY PART OF THE MEAL
HOUR IS WORKED AND SHALL CONTINUE TO APPLY UNTIL THE MEN ARE RELIEVED. 
...  " 

FN4  FOR PURPOSES OF THIS CASE, THE "OVERTIME" RATE MAY BE REGARDED
AS 150% OF "STRAIGHT TIME" IN ALL INSTANCES, SINCE THE DISTRICT COURT
ALLOWED THE RESPONDENTS TO RECOVER FOR THOSE FEW INSTANCES WHERE THE
"OVERTIME" WAS SLIGHTLY LESS, AND THIS PORTION OF ITS JUDGMENT WAS NOT
APPEALED. 

FN5  ON THE OTHER HAND, ALTHOUGH THE CONTRACT DID NOT SO SPECIFY, IN
THE UNUSUAL SITUATION OF A LONGSHOREMAN WORKING OVER FORTY HOURS OF
"STRAIGHT TIME" FOR ONE EMPLOYER IN ONE WEEK, HE WAS PAID TIME AND A
HALF FOR THE EXCESS.  WHERE THIS HAD NOT BEEN DONE, THE DISTRICT COURT
ALLOWED APPROPRIATE RECOVERY, AND THIS WAS NOT APPEALED. 

FN6  SIMILAR INTENTIONS WERE EXPRESSED AGAIN AND AGAIN IN THE
COMMITTEE HEARINGS AND ON THE FLOOR OF BOTH HOUSES OF CONGRESS BY THE
SPOKESMEN OF THE ADMINISTRATION AND CONGRESSIONAL COMMITTEE MEMBERS. 
SEE THE JOINT HEARINGS BEFORE THE SENATE COMMITTEE ON LABOR AND
EDUCATION AND THE HOUSE COMMITTEE ON LABOR, 75TH CONG., 1ST SESS., PP.
46-47(ASST.  ATTY.  GEN. JACKSON); ID. PP. 181-83(SECY.  PERKINS AND
SEN. WALSH); 81 CONG. REC. 7650, 7651, 7808(SEN.  BLACK); 7652, 7799,
7800, 7885-86, 7937(SEN.  WALSH); 7813(SEN.  PEPPER); 82 CONG. REC.
1390(REP.  NORTON); 1395(REP.  RANDOLPH); 83 CONG. REC. 7291(REP. 
ALLEN); 7310(REP.  FITZGERALD); 9258(REP.  RANDOLPH). 

FN7  CF. LORD STOWELL, IN THE NEPTUNE, 1 HAGG.  ADM.*  227,*  232:  "
...  THE NATURAL AND LEGAL PARENTS OF WAGES ARE THE MARINER'S
CONTRACT, AND THE PERFORMANCE OF THE SERVICE COVENANTED THEREIN; THEY
IN FACT GENERATE THE TITLE TO WAGES." 

FN8  THE FOLLOWING FIGURES WERE EITHER STIPULATED BY THE PARTIES,
FOUND AS FACTS BY THE DISTRICT COURT AND CONCURRED IN BY THE CIRCUIT
COURT OF APPEALS AND THIS COURT, OR COMPUTED FROM SUCH STATISTICS:

                        OCT. 24, 1938

                        1932-37   (EFFECTIVE DATE  APR. 1, 1944
MAR. 

                                            AVERAGE     OF FLSA) TO
   31, 1945

                               AUG. 31, 1939   (HEIGHT OF WARTIME

(EVE OF WAR)        ACTIVITY) 

WORK PERFORMED DURING STRAIGHT TIME HOURS----  79.93%       75.03%
    54.5% 

NIGHT WORK-----------------------------------  15.13%       17.89%
   20.5% 

WEEKEND WORK---------------------------------   4.94%        7.08%
    25.0% 

TOTAL NIGHT WORK BY MEN WHO HAD WORKED 

DURING SAME DAY -----------------------------   13.2%       23.29%
    44.5% 

DITTO BY THOSE WHO HAD NOT-------------------  86.8%        76.71%
   55.5% 

TOTAL MAN-HOURS, CONSISTING OF NIGHT WORK BY 

THOSE WHO HAD NOT WORKED DURING SAME DAY-----   2.57%      4.17%
  11.1% 

CONCENTRATION OF MAN-HOURS, STRAIGHT TIME 

OVER OVERTIME-------------------------------- 11.22         8.47
   3.38 

FN9  THAT THE HOURS DESIGNATED BY THE AGREEMENT AS "OVERTIME" WERE
REGARDED BY THE UNION AS EXCESSIVE HOURS, RATHER THAN MERELY AS
UNPLEASANT HOURS, MAY ALSO BE DEDUCED FROM THE FACT THAT THEY INCLUDED
MUCH WEEKDAY TIME IN WHICH THERE WAS AMPLE DAYLIGHT DURING A LARGE PART
OF THE YEAR, AND WERE NOT CONFINED TO NIGHTS AND WEEKENDS.  ANOTHER
INDICATION OF THE SAME THING IS THE FACT THAT THE HISTORY OF THE UNION
AGREEMENTS FOR NEW YORK LONGSHOREMEN REVEALS A SUCCESSION OF REDUCTIONS
OF THE TOTAL NUMBER OF "STRAIGHT TIME" HOURS PARALLEL TO THE REDUCTION
OF THE USUAL WEEKLY WORKING HOURS DURING THE SAME PERIOD THROUGHOUT
AMERICAN INDUSTRY.    FN10  OF COURSE, IF IT CAN BE SHOWN THAT
PARTICULAR EMPLOYEES - FOR REASONS OF COLOR, LACK OF SENIORITY, OR
ANYTHING ELSE - WERE NOT FAIRLY OR PROPERLY REPRESENTED IN THE
COLLECTIVE BARGAINING AGREEMENT, AND WERE DISCRIMINATED AGAINST AND
FORCED INTO A LESS DESIRABLE CLASS OF WORK, NOT BECAUSE OF ACCIDENT OR
THEIR OWN DESIRE BUT BECAUSE OF THE DELIBERATE POLICY OF THE EMPLOYERS,
THE UNION, OR BOTH, WE CANNOT TREAT THE AGREEMENT MADE FOR THE
GENERALITY OF LONGSHOREMEN AS BINDING UPON THEM AS WELL.  SEE STEELE V.
LOUISVILLE & N.R. CO., 323 U.S. 192; TUNSTALL V. BROTHERHOOD OF
LOCOMOTIVE FIREMEN AND ENGINEMEN, 323 U.S. 210.  THE RESPONDENTS' CLAIM
WAS NOT BASED UPON ANY SUCH ALLEGATION. 

FN12  THE INTERPRETATIONS OF THE WAGE-HOUR ADMINISTRATOR PERTINENT TO
THIS CASE ARE CONFLICTING AND INCONCLUSIVE.  CITATION OF THE MOST
RELEVANT SHOULD SUFFICE.  CF. SECS. 69, 70, INTERPRETATIVE BULLETIN NO.
4, WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR. 
..END :






















UNITED STATES V. STEEL CO., 334 U.S. 495 


NO. 461.  ARGUED APRIL 29-30, 1948.  - DECIDED JUNE 7, 1948.  - 74
F.SUPP.  671, AFFIRMED. 


1.  THE UNITED STATES SUED UNDER SEC. 4 OF THE SHERMAN ACT TO ENJOIN
THE ACQUISITION BY UNITED STATES STEEL CORPORATION OF THE ASSETS OF
CONSOLIDATED STEEL CORPORATION, LARGEST INDEPENDENT STEEL FABRICATOR ON
THE WEST COAST, AS A VIOLATION OF SECS. 1 AND 2 OF THE ACT.  THE GIST
OF THE COMPLAINT WAS (1) THAT THE ACQUISITION WOULD BE IN RESTRAINT OF
TRADE, BECAUSE ALL MANUFACTURERS OTHER THAN UNITED STATES STEEL WOULD
BE EXCLUDED FROM THE BUSINESS OF SUPPLYING CONSOLIDATED'S REQUIREMENTS
OF ROLLED STEEL PRODUCTS, AND BECAUSE EXISTING COMPETITION BETWEEN
CONSOLIDATED AND UNITED STATES STEEL IN THE SALE OF STRUCTURAL
FABRICATED PRODUCTS AND PIPE WOULD BE ELIMINATED; AND (2) THAT THE
PROPOSED ACQUISITION, IN THE LIGHT OF PREVIOUS ACQUISITIONS BY UNITED
STATES STEEL, WAS AN ATTEMPT TO MONOPOLIZE THE PRODUCTION AND SALE OF
FABRICATED STEEL PRODUCTS IN THE CONSOLIDATED MARKET AREA.  HELD:  THE
PROPOSED ACQUISITION WOULD NOT VIOLATE SEC. 1 OR SEC. 2 OF THE SHERMAN
ACT.  PP. 507-508, 519-534. 

(A)  THE ACQUISITION DOES NOT UNREASONABLY RESTRICT THE OPPORTUNITIES
OF COMPETITOR PRODUCERS OF ROLLED STEEL TO MARKET THEIR PRODUCT.  PP.
519-527. 

(B)  THERE WAS NO SPECIFIC INTENT IN THIS CASE TO ACCOMPLISH AN
UNREASONABLE RESTRAINT OF INTERSTATE COMMERCE.  UNITED STATES V. YELLOW
CAB CO., 332 U.S. 218, DISTINGUISHED.  PP. 520-527. 

(C)  IT IS NOT PROVED IN THIS CASE THAT THE ELIMINATION OF
COMPETITION BETWEEN CONSOLIDATED AND THE STRUCTURAL FABRICATING
SUBSIDIARIES OF UNITED STATES STEEL CONSTITUTES AN UNREASONABLE
RESTRAINT OF TRADE.  P. 529. 

(D)  THE ELIMINATION OF COMPETITION BETWEEN CONSOLIDATED AND NATIONAL
TUBE (A UNITED STATES STEEL SUBSIDIARY) DOES NOT CONSTITUTE AN
UNREASONABLE RESTRAINT OF TRADE IN PIPE, IN VIEW INTER ALIA OF THE
LIMITED EXTENT OF THE COMPETITION BETWEEN THEM IN THIS FIELD.  PP. 530
531. 

(E)  IN THE LIGHT OF PREVIOUS ACQUISITIONS BY UNITED STATES STEEL,
INCLUDING THAT OF THE GOVERNMENT-OWNED PLANT AT GENEVA, UTAH, THE
ACQUISITION OF CONSOLIDATED DOES NOT DEMONSTRATE THE EXISTENCE OF A
SPECIFIC INTENT TO MONOPOLIZE, BUT REFLECTS RATHER A NORMAL BUSINESS
PURPOSE.  PP. 531-533. 

(F)  CONSIDERING THE VARIOUS OBJECTIONS IN THE AGGREGATE AND IN THE
LIGHT OF THE CHARGE OF INTENT TO MONOPOLIZE, THE ACQUISITION DOES NOT
VIOLATE THE PUBLIC POLICY MANIFESTED IN THE SHERMAN ACT.  PP. 533-534. 

2.  THE SHERMAN ACT IS NOT LIMITED TO ELIMINATING RESTRAINTS WHOSE
EFFECTS ARE NATION-WIDE; BUT, WHERE THE RELEVANT COMPETITIVE MARKET
COVERS A LESSER AREA, THE ACT MAY BE INVOKED TO PREVENT UNREASONABLE
RESTRAINTS IN THAT AREA.  P. 519. 

3.  WITHDRAWAL OF CONSOLIDATED AS A CONSUMER OF ROLLED STEEL PRODUCTS
MADE BY OTHER PRODUCERS DOES NOT CONSTITUTE AN UNREASONABLE RESTRAINT. 
PP. 520-523. 

4.  VERTICAL INTEGRATION IS NOT ILLEGAL PER SE.  ITS LEGALITY IS TO
BE DETERMINED BY, INTER ALIA, (1) CHARACTERIZING THE NATURE OF THE
MARKET TO BE SERVED AND THE LEVERAGE ON THE MARKET WHICH THE PARTICULAR
VERTICAL INTEGRATION CREATES, AND (2) THE PURPOSE OR INTENT WITH WHICH
THE COMBINATION WAS CONCEIVED.  UNITED STATES V. PARAMOUNT PICTURES,
334 U.S. 131, AND UNITED STATES V. GRIFFITH, 334 U.S. 100, FOLLOWED. 
PP. 524-527. 

5.  THERE IS NO DECLARED PUBLIC POLICY WHICH FORBIDS, PER SE, AN
EXPANSION OF FACILITIES OF AN EXISTING COMPANY TO MEET THE NEEDS OF NEW
MARKETS OF A COMMUNITY, WHETHER THAT COMMUNITY IS NATION-WIDE OR
SMALLER IN AREA.  P. 526. 

6.  THE SAME TESTS WHICH MEASURE THE LEGALITY OF VERTICAL INTEGRATION
BY ACQUISITION ARE APPLICABLE TO THE ACQUISITION OF COMPETITORS IN
IDENTICAL OR SIMILAR LINES OF MERCHANDISE.  IT IS FIRST NECESSARY TO
DELIMIT THE MARKET IN WHICH THE CONCERNS COMPETE AND THEN DETERMINE THE
EXTENT TO WHICH THE CONCERNS ARE IN COMPETITION IN THAT MARKET.  IF
SUCH ACQUISITION RESULTS IN OR IS AIMED AT UNREASONABLE RESTRAINT, THEN
THE PURCHASE IS FORBIDDEN BY THE SHERMAN ACT.  P. 527. 

7.  IN DETERMINING WHAT CONSTITUTES UNREASONABLE RESTRAINT, DOLLAR
VOLUME IN ITSELF IS NOT OF COMPELLING SIGNIFICANCE.  CONSIDERATION MUST
ALSO BE GIVEN TO THE PERCENTAGE OF BUSINESS CONTROLLED, THE STRENGTH OF
THE REMAINING COMPETITION, WHETHER THE ACTION SPRINGS FROM BUSINESS
REQUIREMENTS OR PURPOSE TO MONOPOLIZE, THE PROBABLE DEVELOPMENT OF THE
INDUSTRY, CONSUMER DEMANDS, AND OTHER CHARACTERISTICS OF THE MARKET. 
THE RELATIVE EFFECT OF PERCENTAGE COMMAND OF A MARKET VARIES WITH THE
SETTING IN WHICH THAT FACTOR IS PLACED.  PP. 527-528. 

8.  EVEN THOUGH A RESTRAINT OF TRADE BE REASONABLE AND NOT UNLAWFUL
UNDER SEC. 1 OF THE SHERMAN ACT, IT MAY NEVERTHELESS CONSTITUTE AN
ATTEMPT TO MONOPOLIZE IN VIOLATION OF SEC. 2 IF A SPECIFIC INTENT TO
MONOPOLIZE BE SHOWN.  PP. 531-532. 

UNITED STATES V. COLUMBIA STEEL CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF DELAWARE. 

THE UNITED STATES BROUGHT A SUIT UNDER SEC. 4 OF THE SHERMAN ACT TO
ENJOIN, AS A VIOLATION OF SECS. 1 AND 2 OF THE ACT, THE ACQUISITION OF
THE CONSOLIDATED STEEL CORPORATION BY THE UNITED STATES STEEL
CORPORATION.  AFTER A HEARING ON THE MERITS, THE DISTRICT COURT DENIED
THE RELIEF PRAYED IN THE COMPLAINT.  74 F.SUPP.  671.  A DIRECT APPEAL
WAS TAKEN TO THIS COURT UNDER THE EXPEDITING ACT.  AFFIRMED, P. 534. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BRINGS THIS SUIT UNDER SEC. 4 OF THE SHERMAN ACT TO
ENJOIN UNITED STATES STEEL CORPORATION AND ITS SUBSIDIARIES FROM
PURCHASING THE ASSETS OF THE LARGEST INDEPENDENT STEEL FABRICATOR ON
THE WEST COAST ON THE GROUND THAT SUCH ACQUISITION WOULD VIOLATE SECS.
1 AND 2 OF THE SHERMAN ACT.  FN1  THE COMPLAINT, FILED ON FEBRUARY 24,
1947, CHARGED THAT IF THE CONTRACT OF SALE BETWEEN UNITED STATES STEEL
AND CONSOLIDATED STEEL CORPORATION WERE CARRIED OUT, COMPETITION IN THE
SALE OF ROLLED STEEL PRODUCTS AND IN FABRICATED STEEL PRODUCTS WOULD BE
RESTRAINED, AND THAT THE CONTRACT INDICATED AN EFFORT ON THE PART OF
UNITED STATES STEEL TO ATTEMPT TO MONOPOLIZE THE MARKET IN FABRICATED
STEEL PRODUCTS.  AFTER A TRIAL BEFORE A SINGLE JUDGE IN THE DISTRICT
COURT, JUDGMENT WAS ENTERED IN FAVOR OF THE DEFENDANTS, AND THE
GOVERNMENT BROUGHT THE CASE HERE BY DIRECT APPEAL.  32 STAT. 823, 15
U.S.C. SEC. 29. 

THE UNDERLYING FACTS IN THE CASE ARE SET FORTH IN THE FINDINGS OF THE
TRIAL COURT, AND WITH A FEW EXCEPTIONS THOSE FINDINGS ARE NOT DISPUTED
BY THE GOVERNMENT.  WE RELY CHIEFLY ON THE FINDINGS TO INDICATE THE
NATURE OF THE COMMERCE HERE IN QUESTION AND THE EXTENT TO WHICH
COMPETITION WOULD BE AFFECTED BY THE CHALLENGED CONTRACT. 

THE STEEL PRODUCTION INVOLVED IN THIS CASE MAY BE SPOKEN OF AS BEING
DIVIDED INTO TWO STAGES: THE PRODUCTION OF ROLLED STEEL PRODUCTS AND
THEIR FABRICATION INTO FINISHED STEEL PRODUCTS.  ROLLED STEEL PRODUCTS
CONSIST OF STEEL PLATES, SHAPES, SHEETS, BARS, AND OTHER UNFINISHED
STEEL PRODUCTS AND ARE IN TURN MADE FROM INGOTS BY MEANS OF ROLLING
MILLS.  THE STEEL FABRICATION INVOLVED HEREIN MAY ALSO BE DIVIDED INTO
STRUCTURAL FABRICATION AND PLATE FABRICATION.  FABRICATED STRUCTURAL
STEEL PRODUCTS CONSIST OF BUILDING FRAMEWORK, BRIDGES, TRANSMISSION
TOWERS, AND SIMILAR PERMANENT STRUCTURES, AND ARE MADE PRIMARILY FROM
ROLLED STEEL SHAPES, ALTHOUGH PLATES AND OTHER ROLLED STEEL PRODUCTS
MAY ALSO BE EMPLOYED.  FABRICATED PLATE PRODUCTS, ON THE OTHER HAND,
CONSIST OF PRESSURE VESSELS, TANKS, WELDED PIPE, AND SIMILAR PRODUCTS
MADE PRINCIPALLY FROM ROLLED STEEL PLATES, ALTHOUGH SHAPES AND BARS ARE
ALSO OCCASIONALLY USED.  BOTH PLATE AND STRUCTURAL FABRICATED PRODUCTS
ARE MADE TO SPECIFICATIONS FOR A PARTICULAR PURPOSE; FABRICATED
PRODUCTS DO NOT INCLUDE STANDARD PRODUCTS MADE BY REPETITIVE PROCESSES
IN THE MANUFACTURE OF GENERAL STEEL MERCHANDISE SUCH AS WIRE, NAILS,
BOLTS, AND WINDOW FRAMES.  THE MANUFACTURE OF SUCH STANDARDIZED
FINISHED PRODUCTS IS NOT INVOLVED IN THIS CASE.  THE FACILITIES
REQUIRED FOR STRUCTURAL FABRICATION ARE QUITE DIFFERENT FROM THOSE
REQUIRED FOR PLATE FABRICATION; THE FORMER REQUIRE EQUIPMENT FOR
SHEARING, PUNCHING, DRILLING, ASSEMBLING, AND RIVETING OR WELDING
STRUCTURAL SHAPES WHEREAS THE LATTER REQUIRE EQUIPMENT FOR BENDING,
ROLLING, CUTTING, AND FORMING THE PLATES WHICH GO INTO THE FINISHED
PRODUCT. 

THE COMPLAINT LISTS FOUR DEFENDANTS:  COLUMBIA STEEL COMPANY,
CONSOLIDATED STEEL CORPORATION, UNITED STATES STEEL CORPORATION, AND
UNITED STATES STEEL CORPORATION OF DELAWARE.  UNITED STATES STEEL AND
ITS SUBSIDIARIES ENGAGE IN THE BUSINESS OF PRODUCING ROLLED STEEL
PRODUCTS AND IN STRUCTURAL FABRICATION, BUT DO NO PLATE FABRICATION
WORK.  CONSOLIDATED STEEL, THE SALE OF WHOSE ASSETS THE GOVERNMENT
SEEKS TO ENJOIN, IS ENGAGED ONLY IN STRUCTURAL FABRICATION AND PLATE
FABRICATION.  UNITED STATES STEEL WITH ITS SUBSIDIARIES IS THE LARGEST
PRODUCER OF ROLLED STEEL PRODUCTS IN THE UNITED STATES, WITH A TOTAL
INVESTMENT OF MORE THAN A BILLION AND A HALF DOLLARS.  DURING THE TEN
YEAR PERIOD 1937-1946 UNITED STATES STEEL PRODUCED ALMOST EXACTLY A
THIRD OF ALL ROLLED STEEL PRODUCTS PRODUCED IN THE UNITED STATES, AND
AVERAGE SALES FOR THAT PERIOD WERE NEARLY A BILLION AND A HALF
DOLLARS.  IN THE FIVE-YEAR PERIOD 1937-1941, AVERAGE SALES WERE A
LITTLE OVER A BILLION DOLLARS.  CONSOLIDATED, BY CONTRAST, HAD PLANTS
WHOSE DEPRECIATED VALUE WAS LESS THAN TEN MILLION DOLLARS.  DURING THE
FIVE-YEAR PERIOD 1937-1941, CONSOLIDATED HAD AVERAGE SALES OF ONLY
TWENTY MILLION DOLLARS, AND THE UNITED STATES STEEL COMMITTEE WHICH
NEGOTIATED THE TERMS OF THE PURCHASE OF CONSOLIDATED ESTIMATED THAT
CONSOLIDATED'S SALES IN THE FUTURE WOULD RUN TO TWENTY-TWO MILLION
DOLLARS ANNUALLY AND AGREED WITH CONSOLIDATED ON A PURCHASE PRICE OF
SLIGHTLY IN EXCESS OF EIGHT MILLION DOLLARS.  DURING THE WAR
CONSOLIDATED PRODUCTED OVER A BILLION AND A HALF DOLLARS WORTH OF SHIPS
WITH GOVERNMENT-FURNISHED FACILITIES.  CONSOLIDATED NO LONGER POSSESSES
ANY FACILITIES FOR BUILDING SHIPS.  FN2 

COLUMBIA STEEL, A WHOLLY-OWNED SUBSIDIARY OF UNITED STATES STEEL, HAS
BEEN THE LARGEST ROLLED STEEL PRODUCER IN THE PACIFIC COAST AREA SINCE
1930, WITH PLANTS IN UTAH AND CALIFORNIA, AND HAS ALSO SERVED AS
SELLING AGENT FOR OTHER ROLLED STEEL SUBSIDIARIES OF UNITED STATES
STEEL, AND FOR TWO SUBSIDIARIES OF THAT COMPANY ENGAGED IN STRUCTURAL
FABRICATION, THE AMERICAN BRIDGE COMPANY AT PITTSBURGH AND THE VIRGINIA
BRIDGE COMPANY AT ROANOKE, VIRGINIA, THOUGH NEITHER IT NOR ANY OTHER
SUBSIDIARY OF UNITED STATES STEEL IN THE CONSOLIDATED MARKET AREA WAS A
FABRICATOR OF ANY KIND.  NATIONAL TUBE COMPANY, ANOTHER UNITED STATES
STEEL SUBSIDIARY, SELLS PIPE AND TUBING.  CONSOLIDATED HAS STRUCTURAL
FABRICATING PLANTS NEAR LOS ANGELES AND AT ORANGE, TEXAS, AND PLATE
FABRICATING FACILITIES IN CALIFORNIA AND ARIZONA.  CONSOLIDATED HAS
SOLD ITS PRODUCTS DURING THE PAST TEN YEARS IN ELEVEN STATES, REFERRED
TO HEREAFTER AS THE CONSOLIDATED MARKET:  ARIZONA, CALIFORNIA, IDAHO,
LOUISIANA, MONTANA, NEVADA, NEW MEXICO, OREGON, TEXAS, UTAH AND
WASHINGTON.  IT IS THAT MARKET WHICH THE GOVERNMENT VIEWS AS
SIGNIFICANT IN DETERMINING THE EXTENT OF COMPETITION BETWEEN UNITED
STATES STEEL AND CONSOLIDATED.  IT IS NOT THE USUAL PACIFIC AND
MOUNTAIN STATES GROUPS EMPLOYED BY THE CENSUS.  FN3  UNITED STATES
STEEL CORPORATION OF DELAWARE IS A SUBSIDIARY OF UNITED STATES STEEL
WHICH RENDERS TECHNICAL ASSISTANCE TO OTHER SUBSIDIARIES ENGAGED IN
STEEL PRODUCTION. 

ROLLED STEEL PRODUCTS HAVE TRADITIONALLY BEEN SOLD ON A BASING POINT
SYSTEM.  FN4  PRIOR TO WORLD WAR II ROLLED STEEL WAS SOLD ON THE WEST
COAST AT A PRICE COMPUTED ON THE BASIS OF EASTERN BASING POINTS, EVEN
THOUGH BOTH UNITED STATES STEEL AND BETHLEHEM STEEL PRODUCED ROLLED
STEEL PRODUCTS IN CALIFORNIA.  FABRICATORS SUCH AS CONSOLIDATED THUS
DID NOT GET THE FULL BENEFIT OF THEIR PROXIMITY TO THE WESTERN MARKET. 
THE COMPETITIVE DISADVANTAGES UNDER WHICH WESTERN FABRICATORS WORKED IS
ILLUSTRATED BY THE FACT THAT UNITED STATES STEEL HAS BEEN THE LARGEST
SELLER OF FABRICATED STRUCTURAL STEEL IN THE CONSOLIDATED MARKET, EVEN
THOUGH IT HAS NO FABRICATING PLANTS IN THE AREA.  DURING THE TEN-YEAR
PERIOD ENDING IN 1946, 100 DIFFERENT CONCERNS BID SUCCESSFULLY IN
COMPETITION WITH UNITED STATES STEEL FOR THE SALE OF FABRICATED
STRUCTURAL PRODUCTS IN THE CONSOLIDATED MARKET; 50 OF THOSE CONCERNS
ARE LOCATED OUTSIDE THE AREA.  UNITED STATES STEEL'S PRINCIPAL
COMPETITOR AS MEASURED ON A NATIONAL BASIS, BETHLEHEM STEEL, DOES HAVE
FABRICATING FACILITIES IN CALIFORNIA, HOWEVER, AND PRIOR TO WORLD WAR
II UNITED STATES STEEL HAD PREPARED PLANS FOR THE ERECTION OF
FABRICATING FACILITIES IN CALIFORNIA.  THE WAR MADE IT NECESSARY TO
POSTPONE THE PLANS.  THIS USE OF EASTERN BASING POINTS MAKES PAST
FIGURES ON ROLLED STEEL PRODUCT SALES FROM PRODUCERS IN THE
CONSOLIDATED MARKET UNRELIABLE IN DETERMINING EFFECTIVE COMPETITION FOR
THE FUTURE SALES OF ROLLED STEEL IN THAT MARKET.  UNITED STATES STEEL
NOW USES GENEVA AS A BASING POINT. 

THE URGENT WARTIME DEMAND FOR STEEL PROMPTED THE GOVERNMENT TO
CONSTRUCT NEW ROLLED STEEL PLANTS IN THE WEST.  THE LARGEST OF THESE
PLANTS WAS ERECTED AT GENEVA, UTAH, AT A COST OF NEARLY $200,000,000,
AND WAS DESIGNED, CONSTRUCTED, AND OPERATED BY UNITED STATES STEEL FOR
THE ACCOUNT OF THE GOVERNMENT.  THE PLANT HAD AN ANNUAL CAPACITY OF
MORE THAN 1,200,000 TONS OF INGOTS, WHICH IN TURN COULD BE EMPLOYED TO
MAKE 700,000 TONS OF PLATES AND 250,000 TONS OF SHAPES.  ANOTHER LARGE
PLANT WAS ERECTED BY THE GOVERNMENT AT FONTANA, CALIFORNIA.  THIS IS
NOW OPERATED THROUGH ARRANGEMENTS OF PRIVATE PARTIES WITH THE
GOVERNMENT.  IN JANUARY 1945 UNITED STATES STEEL CONSIDERED THE
ACQUISITION OF THE GENEVA PLANT, BUT BECAUSE OF THE SPECULATIVE NATURE
OF THE VENTURE AND ATTACKS BY PEOPLE WITHIN AND WITHOUT THE GOVERNMENT,
UNITED STATES STEEL DECIDED NOT TO SUBMIT A BID AND NOTIFIED THE
DEFENSE PLANT CORPORATION TO THAT EFFECT ON AUGUST 8, 1945.  SHORTLY
THEREAFTER THE SURPLUS PROPERTY ADMINISTRATOR WROTE TO BENJAMIN F.
FAIRLESS, PRESIDENT OF UNITED STATES STEEL, ADVISING HIM THAT A BID BY
UNITED STATES STEEL WOULD BE WELCOMED.  ON MAY 1, 1946, UNITED STATES
STEEL SUBMITTED A BID FOR THE GENEVA PLANT OF $47,500,000.  THE TERMS
OF THE BID PROVIDED THAT UNITED STATES STEEL WOULD SPEND NOT LESS THAN
$18,000,000 OF ITS OWN FUNDS TO ERECT ADDITIONAL FACILITIES AT GENEVA,
AND $25,000,000 TO ERECT A COLD-REDUCTION MILL AT PITTSBURG,
CALIFORNIA, TO CONSUME 386,000 TONS OF HOT ROLLED COILS PRODUCED AT
GENEVA.  FN5  THE BID ESTIMATED THAT A SUFFICIENT MARKET COULD BE FOUND
TO ABSORB AN ANNUAL PRODUCTION RANGING FROM 456,000 TO 600,000 TONS. 
THE BID STIPULATED THAT GENEVA PRODUCTS WOULD BE SOLD WITH GENEVA AS A
BASING POINT.  THIS WOULD OFFER POSSIBILITIES FOR A REDUCTION IN THE
PRICE OF ROLLED STEEL PRODUCTS TO WEST COAST PURCHASERS AND THEIR
CUSTOMERS.  THE VARIATION BETWEEN 456,000 AND 600,000 TONS DEPENDED ON
THE CONSUMPTION OF ROLLED STEEL PRODUCTS BY USERS OTHER THAN UNITED
STATES STEEL'S NEW PITTSBURG PLANT.  THE BID NOTED THAT ADDITIONAL
STEEL CONSUMING MANUFACTURING PLANTS MIGHT BE LOCATED IN THE WEST WHICH
WOULD PROVIDE A MARKET FOR ADDITIONAL ROLLED STEEL PRODUCTS.  APART
FROM THE COLD-REDUCTION MILL TO BE ERECTED AT PITTSBURG, THE BID WAS
SILENT AS TO THE ACQUISITION OF FABRICATING FACILITIES BY UNITED STATES
STEEL TO PROVIDE A MARKET FOR GENEVA PRODUCTS. 

ON MAY 23, 1946, THE WAR ASSETS ADMINISTRATION ANNOUNCED THAT THE BID
OF UNITED STATES STEEL WAS ACCEPTED.  AN ACCOMPANYING MEMORANDUM
DISCUSSED IN DETAIL THE SIX BIDS WHICH HAD BEEN RECEIVED, AND CONCLUDED
THAT UNITED STATES STEEL'S BID WAS THE MOST ADVANTAGEOUS.  THE OTHER
BIDS WERE FOUND UNACCEPTABLE FOR A NUMBER OF REASON; EITHER THE BIDDER
COULD OFFER NO ASSURANCE OF HIS FINANCIAL RESPONSIBILITY OR HIS ABILITY
TO OPERATE THE PLANT, OR THE PRICE OFFERED WAS TOO LOW, OR THE BIDDER
REQUESTED THE GOVERNMENT TO LEND THE BIDDER LARGE SUMS FOR THE ERECTION
OF ADDITIONAL FACILITIES OR TO ERECT SUCH FACILITIES AT GOVERNMENT
EXPENSE.  FN6  THE MEMORANDUM NOTED THAT THE SUCCESSFUL BID WOULD
"FOSTER THE DEVELOPMENT IN THE WEST OF NEW INDEPENDENT ENTERPRISE" BY
ENCOURAGING THE LOCATION OF STEEL-CONSUMING MANUFACTURING PLANTS IN THE
WESTERN STATES. 

ON JUNE 17, 1946, THE ATTORNEY GENERAL ADVISED THE WAR ASSETS
ADMINISTRATION THAT THE PROPOSED SALE DID NOT IN HIS OPINION CONSTITUTE
A VIOLATION OF THE ANTITRUST LAWS, AND THE SALE WAS CONSUMMATED TWO
DAYS THEREAFTER.  THE OPINION OF THE ATTORNEY GENERAL WAS REQUESTED IN
ACCORDANCE WITH SEC. 20 OF THE SURPLUS PROPERTY ACT OF 1944, 58 STAT.
765, 775, WHICH REQUIRES SUCH PROCEDURE WHEN GOVERNMENT PLANTS COSTING
MORE THAN $1,000,000 ARE BEING SOLD.  THAT SECTION PROVIDES THAT
NOTHING IN THE SURPLUS PROPERTY ACT "SHALL IMPAIR, AMEND, OR MODIFY THE
ANTITRUST LAWS OR LIMIT AND PREVENT THEIR APPLICATION TO PERSONS" WHO
BUY PROPERTY UNDER THE ACT.  THE ATTORNEY GENERAL NOTED THAT THE INGOT
CAPACITY OF UNITED STATES STEEL HAD DECLINED FROM 35.3% OF THE TOTAL
NATIONAL CAPACITY IN 1939 TO 31.4% IN 1946, AND THAT IF THE GENEVA
PLANT WERE ACQUIRED, THE PERCENTAGE WOULD BE INCREASED TO 32.7%.
CONSIDERING ONLY THE PACIFIC COAST AND MOUNTAIN STATES, THE ACQUISITION
OF GENEVA, THE ATTORNEY GENERAL SAID, WOULD INCREASE UNITED STATES
STEEL'S PERCENTAGE OF CAPACITY IN THAT AREA FROM 17.3% TO 39%.  UNITED
STATES STEEL, HOWEVER, ESTIMATED THAT ON ACQUISITION OF GENEVA IT WOULD
HAVE 51% OF INGOT CAPACITY IN THE PACIFIC COAST AREA.  ON THE BASIS OF
THESE FIGURES CONSTRUED IN THE LIGHT OF UNITED STATES V. ALUMINUM CO.
OF AMERICA, 148 F.2D 416, AND AMERICAN TOBACCO CO. V. UNITED STATES,
328 U.S. 781, THE ATTORNEY GENERAL CONCLUDED THAT THE PROPOSED SALE, AS
SUCH, WOULD NOT VIOLATE THE ANTITRUST LAWS.  THE LETTER ADDED THAT NO
OPINION WAS EXPRESSED AS TO THE LEGALITY OF ANY ACTS OR PRACTICES IN
WHICH UNITED STATES STEEL MIGHT HAVE ENGAGED OR IN WHICH IT MIGHT
ENGAGE IN THE FUTURE.  SEE FOR A COMPARABLE SITUATION UNITED STATES V.
UNITED STATES STEEL CORP., 251 U.S. 417, 446.    PRIOR TO THE SALE OF
THE GENEVA PLANT, ALDEN G. ROACH, PRESIDENT OF CONSOLIDATED, APPROACHED
FAIRLESS OF UNITED STATES STEEL AND INDICATED THAT HE WOULD LIKE TO
SELL THE BUSINESS OF CONSOLIDATED.  ROACH ALSO HAD CONVERSATIONS WITH
REPRESENTATIVES OF BETHLEHEM AND KAISER WITH REGARD TO THE SAME END. 
ROACH MENTIONED THE SUBJECT AGAIN TO FAIRLESS IN FEBRUARY OR MARCH OF
1946, AND FAIRLESS REPLIED THAT UNITED STATES STEEL WAS RESTUDYING ITS
DECISION NOT TO BID ON THE GENEVA PLANT, AND DID NOT WANT TO DISCUSS
THE PURCHASE OF CONSOLIDATED UNTIL THE GENEVA ISSUE WAS DECIDED.  AFTER
THE SALE OF GENEVA WAS EFFECTED IN JUNE, FAIRLESS SPOKE AGAIN WITH
ROACH AND ARRANGED TO HAVE A COMMITTEE FROM UNITED STATES STEEL MAKE AN
INVESTIGATION OF THE CONSOLIDATED PLANTS IN AUGUST.  THE COMMITTEE
REPORTED THAT IT WOULD COST $14,000,000 AND TAKE THREE YEARS TO
CONSTRUCT PLANTS EQUIVALENT TO THOSE OWNED BY CONSOLIDATED, AND THAT
THE CONSOLIDATED PROPERTIES HAD A DEPRECIATED VALUE OF $9,800,000. 
AFTER FURTHER NEGOTIATIONS THE PARTIES AGREED ON A PRICE OF
APPROXIMATELY $8,250,000, AND A PURCHASE AGREEMENT WAS EXECUTED ON
DECEMBER 14 ACCORDING TO WHICH COLUMBIA AGREED TO BUY THE PHYSICAL
ASSETS OF CONSOLIDATED AND FOUR SUBSIDIARIES.  FAIRLESS TESTIFIED ON
THE WITNESS STAND THAT UNITED STATES STEEL'S PURPOSE IN PURCHASING
CONSOLIDATED WAS TO ASSURE A MARKET FOR PLATES AND SHAPES PRODUCED AT
GENEVA, AND ROACH TESTIFIED THAT CONSOLIDATED'S PURPOSE WAS TO WITHDRAW
THE STOCKHOLDERS' EQUITY FROM THE FABRICATION BUSINESS WITH ITS
CYCLICAL FLUCTUATIONS AT A TIME WHEN A FAVORABLE PRICE COULD BE
REALIZED. 

 I. 

THE THEORY OF THE UNITED STATES IN BRINGING THIS SUIT IS THAT THE
ACQUISITION OF CONSOLIDATED CONSTITUTES AN ILLEGAL RESTRAINT OF
INTERSTATE COMMERCE BECAUSE ALL MANUFACTURERS EXCEPT UNITED STATES
STEEL WILL BE EXCLUDED FROM THE BUSINESS OF SUPPLYING CONSOLIDATED'S
REQUIREMENTS OF ROLLED STEEL PRODUCTS, AND BECAUSE COMPETITION NOW
EXISTING BETWEEN CONSOLIDATED AND UNITED STATES STEEL IN THE SALE OF
STRUCTURAL FABRICATED PRODUCTS AND PIPE WILL BE ELIMINATED.  IN
ADDITION, THE GOVERNMENT ALLEGES THAT THE ACQUISITION OF CONSOLIDATED,
VIEWED IN THE LIGHT OF THE PREVIOUS SERIES OF ACQUISITIONS BY UNITED
STATES STEEL, CONSTITUTES AN ATTEMPT TO MONOPOLIZE THE PRODUCTION AND
SALE OF FABRICATED STEEL PRODUCTS IN THE CONSOLIDATED MARKET.  THE
APPELLEES CONTEND THAT THE AMOUNT OF COMPETITION WHICH WILL BE
ELIMINATED IS SO INSIGNIFICANT THAT THE RESTRAINT EFFECTED IS A
REASONABLE RESTRAINT NOT AN ATTEMPT TO MONOPOLIZE AND NOT PROHIBITED BY
THE SHERMAN ACT.  FN7 ON THE RECORD BEFORE US AND IN AGREEMENT WITH THE
TRIAL COURT WE CONCLUDE THAT THE GOVERNMENT HAS FAILED TO PROVE ITS
CONTENTION THAT THE ACQUISITION OF CONSOLIDATED WOULD UNREASONABLY
LESSEN COMPETITION IN THE THREE RESPECTS CHARGED, AND THEREFORE THE
PROPOSED CONTRACT IS NOT FORBIDDEN BY SEC. 1 OF THE SHERMAN ACT.  WE
FURTHER HOLD THAT THE GOVERNMENT HAS FAILED TO PROVE AN ATTEMPT TO
MONOPOLIZE IN VIOLATION OF SEC. 2. 

WE TURN FIRST TO THE CHARGE THAT THE PROPOSED PURCHASE WILL LESSEN
COMPETITION BY EXCLUDING PRODUCERS OF ROLLED STEEL PRODUCTS OTHER THAN
UNITED STATES STEEL FROM SUPPLYING THE REQUIREMENTS OF CONSOLIDATED. 
OVER THE TEN-YEAR PERIOD FROM 1937 TO 1946 CONSOLIDATED PURCHASED OVER
TWO MILLION TONS OF ROLLED STEEL PRODUCTS, INCLUDING THE ABNORMALLY
HIGH WARTIME REQUIREMENTS.  WHATEVER AMOUNT OF ROLLED STEEL PRODUCTS
CONSOLIDATED USES IN THE FUTURE WILL BE SUPPLIED INSOFAR AS POSSIBLE
FROM OTHER SUBSIDIARIES OF UNITED STATES STEEL, AND OTHER PRODUCERS OF
ROLLED STEEL PRODUCTS WILL LOSE CONSOLIDATED AS A PROSPECTIVE
CUSTOMER. 

THE PARTIES ARE IN SHARP DISPUTE AS TO THE SIZE AND NATURE OF THE
MARKET FOR ROLLED STEEL PRODUCTS WITH WHICH CONSOLIDATED'S CONSUMPTION
IS TO BE COMPARED.  THE APPELLEES ARGUE THAT ROLLED STEEL PRODUCTS ARE
SOLD ON A NATIONAL SCALE, AND THAT FOR THE MAJOR PRODUCERS THE ENTIRE
UNITED STATES SHOULD BE REGARDED AS THE MARKET.  VIEWED FROM THIS
STANDPOINT, CONSOLIDATED'S REQUIREMENTS ARE AN INSIGNIFICANT FRACTION
OF THE TOTAL MARKET, LESS THAN 1/2 OF 1%.  THE GOVERNMENT ARGUES THAT
THE MARKET MUST BE MORE NARROWLY DRAWN, AND THAT THE RELEVANT MARKET TO
BE CONSIDERED IS THE ELEVEN-STATE AREA IN WHICH CONSOLIDATED SELLS ITS
PRODUCTS, AND FURTHER THAT IN THAT AREA BY CONSIDERING ONLY THE
CONSUMPTION OF STRUCTURAL AND PLATE FABRICATORS A VIOLATION OF THE
SHERMAN ACT HAS BEEN ESTABLISHED.  IF ALL SALES OF ROLLED STEEL
PRODUCTS IN THE CONSOLIDATED MARKET ARE CONSIDERED, CONSOLIDATED'S
PURCHASES OF TWO MILLION TONS REPRESENT A LITTLE MORE THAN 3% OF THE
TOTAL OF 60 MILLION TONS.  THE FIGURE IS NOT APPRECIABLY DIFFERENT IF
THE FIVE-YEAR PERIOD 1937-41 OR 1946 ALONE IS USED AS THE MEASURING
PERIOD.  FN8  IF THE COMPARABLE MARKET IS CONSTRUED EVEN MORE NARROWLY,
AND IS RESTRICTED TO THE CONSUMPTION OF PLATES AND SHAPES IN THE
CONSOLIDATED MARKET, FIGURES FOR 1937 INDICATE THAT CONSOLIDATED'S
CONSUMPTION OF PLATES AND SHAPES WAS 13% OF THE TOTAL.  DATA ARE
OFFERED BY THE GOVERNMENT FOR 1946 WHICH ARE TOO UNCERTAIN TO FURNISH A
RELIABLE GUIDE.  FN9 

THE GOVERNMENT REALIZES THE FORCE OF APPELLEES' ARGUMENT THAT ROLLED
STEEL PRODUCTS ARE SOLD ON A NATIONAL SCALE, AND ATTEMPTS TO
DEMONSTRATE THAT DURING THE NON-WAR YEARS 80% OF CONSOLIDATED'S
REQUIREMENTS WERE PRODUCED ON THE WEST COAST; CONSOLIDATED RESORTS TO
DATA NOT IN THE RECORD TO DEMONSTRATE THAT IN FACT ONLY 26% OF
CONSOLIDATED'S ROLLED STEEL PURCHASES WERE PRODUCED IN PLANTS LOCATED
IN THE CONSOLIDATED MARKET AREA.  FN10  WHETHER WE ACCEPT THE
GOVERNMENT'S OR CONSOLIDATED'S FIGURES, HOWEVER, THEY ARE OF LITTLE
VALUE IN DETERMINING THE EXTENT TO WHICH WEST COAST FABRICATORS WILL
PURCHASE ROLLED STEEL PRODUCTS IN THE EASTERN MARKET IN THE FUTURE,
SINCE THE CONSTRUCTION OF NEW PLANTS AT GENEVA AND FONTANA AND THE
CREATION OF NEW BASING POINTS ON THE WEST COAST WILL PRESUMABLY GIVE
WEST COAST ROLLED STEEL PRODUCERS A FAR LARGER SHARE OF THE WEST COAST
FABRICATING MARKET THAN BEFORE THE WAR. 

ANOTHER DIFFICULTY IS THAT THE RECORD FURNISHES LITTLE INDICATION AS
TO THE PROPRIETY OF CONSIDERING PLATES AND SHAPES AS A MARKET DISTINCT
FROM OTHER ROLLED STEEL PRODUCTS.  IF ROLLED STEEL PRODUCERS CAN MAKE
OTHER PRODUCTS AS EASILY AS PLATES AND SHAPES, THEN THE EFFECT OF THE
REMOVAL OF CONSOLIDATED'S DEMAND FOR PLATES AND SHAPES MUST BE MEASURED
NOT AGAINST THE MARKET FOR PLATES AND SHAPES ALONE, BUT FOR ALL
COMPARABLE ROLLED PRODUCTS.  THE RECORD SUGGESTS, BUT DOES NOT
CONCLUSIVELY INDICATE, THAT ROLLED STEEL PRODUCERS CAN MAKE OTHER
PRODUCTS INTERCHANGEABLY WITH SHAPES AND PLATES, AND THAT THEREFORE WE
SHOULD NOT MEASURE THE POTENTIAL INJURY TO COMPETITION BY CONSIDERING
THE TOTAL DEMAND FOR SHAPES AND PLATES ALONE, BUT RATHER COMPARE
CONSOLIDATED'S DEMAND FOR ROLLED STEEL PRODUCTS WITH THE DEMAND FOR ALL
COMPARABLE ROLLED STEEL PRODUCTS IN THE CONSOLIDATED MARKETING AREA. 

WE READ THE RECORD AS SHOWING THAT THE TRIAL COURT DID NOT ACCEPT THE
THEORY THAT THE COMPARABLE MARKET WAS RESTRICTED TO THE DEMAND FOR
PLATES AND SHAPES IN THE CONSOLIDATED AREA, BUT DID ACCEPT THE
GOVERNMENT'S THEORY THAT THE MARKET WAS TO BE RESTRICTED TO THE TOTAL
DEMAND FOR ROLLED STEEL PRODUCTS IN THE ELEVEN-STATE AREA.  ON THAT
BASIS THE TRIAL COURT FOUND THAT THE STEEL REQUIREMENTS OF CONSOLIDATED
REPRESENTED "A SMALL PART" OF THE CONSUMPTION IN THE CONSOLIDATED AREA,
THAT CONSOLIDATED WAS NOT A "SUBSTANTIAL MARKET" FOR ROLLED STEEL
PRODUCERS SELLING IN COMPETITION WITH UNITED STATES STEEL, AND THAT THE
ACQUISITION OF CONSOLIDATED WOULD NOT INJURE ANY COMPETITOR OF UNITED
STATES STEEL ENGAGED IN THE PRODUCTION AND SALE OF ROLLED STEEL
PRODUCTS IN THE CONSOLIDATED MARKET OR ELSEWHERE.  WE RECOGNIZE THE
DIFFICULTY OF LAYING DOWN A RULE AS TO WHAT AREAS OR PRODUCTS ARE
COMPETITIVE, ONE WITH ANOTHER.  IN THIS CASE AND ON THIS RECORD WE HAVE
CIRCUMSTANCES THAT STRONGLY INDICATE TO US THAT ROLLED STEEL PRODUCTION
AND CONSUMPTION IN THE CONSOLIDATED MARKETING AREA IS THE COMPETITIVE
AREA AND PRODUCT FOR CONSIDERATION. 

IN ANALYZING THE INJURY TO COMPETITION RESULTING FROM THE WITHDRAWAL
OF CONSOLIDATED AS A PURCHASER OF ROLLED STEEL PRODUCTS, WE HAVE BEEN
CONSIDERING THE ACQUISITION OF CONSOLIDATED AS A STEP IN THE VERTICAL
INTEGRATION OF UNITED STATES STEEL.  REGARDED AS A SELLER OF FABRICATED
STEEL PRODUCTS RATHER THAN AS A PURCHASER OF ROLLED STEEL PRODUCTS,
HOWEVER, THE ACQUISITION OF CONSOLIDATED MAY BE REGARDED AS A STEP IN
HORIZONTAL INTEGRATION AS WELL, SINCE UNITED STATES STEEL WILL BROADEN
ITS FACILITIES FOR STEEL FABRICATION THROUGH THE PURCHASE OF
CONSOLIDATED.  IN DETERMINING THE EXTENT OF COMPETITION BETWEEN
CONSOLIDATED AND THE TWO STRUCTURAL FABRICATION SUBSIDIARIES OF UNITED
STATES STEEL IN THE SALE OF FABRICATED STEEL PRODUCTS, WE MUST AGAIN
DETERMINE THE SIZE OF THE MARKET IN WHICH THE TWO COMPANIES MAY BE SAID
TO COMPETE.  THE PARTIES AGREE THAT UNITED STATES STEEL DOES NO PLATE
FABRICATION, AND THAT COMPETITION IS RESTRICTED TO FABRICATING
STRUCTURAL STEEL PRODUCTS AND PIPE.  CONSOLIDATED MAKES PIPE BY BENDING
AND WELDING PLATES, WHEREAS NATIONAL TUBE, A UNITED STATES STEEL
SUBSIDIARY, MAKES SEAMLESS PIPE THROUGH A PROCESS WHICH THE PARTIES
AGREE DOES NOT FALL UNDER THE HEADING OF STEEL FABRICATION. 

WE TURN FIRST TO THE FIELD OF FABRICATED STRUCTURAL STEEL PRODUCTS. 
AS IN THE CASE OF ROLLED STEEL, THE APPELLEES CLAIM THAT STRUCTURAL
FABRICATORS SELL ON A NATIONAL SCALE, AND THAT CONSOLIDATED'S
PRODUCTION MUST BE MEASURED AGAINST ALL STRUCTURAL FABRICATORS.  AN
INDEX OF THE POSITION OF CONSOLIDATED AS A STRUCTURAL FABRICATOR IS
SHOWN BY ITS BOOKINGS FOR THE PERIOD 1937-1942, AS REPORTED BY THE
AMERICAN INSTITUTE OF STEEL CONSTRUCTION.  DURING THAT PERIOD TOTAL
BOOKINGS IN THE ENTIRE COUNTRY WERE NEARLY 10,000,000 TONS, OF WHICH
CONSOLIDATED'S SHARE WAS ONLY 84,533 TONS.  THE GOVERNMENT ARGUES THAT
COMPETITION IS TO BE MEASURED WITH REFERENCE TO THE ELEVEN-STATE AREA
IN WHICH CONSOLIDATED SELLS ITS PRODUCTS.  VIEWED ON THAT BASIS, TOTAL
BOOKINGS FOR THE LIMITED AREA FOR THE SIX-YEAR PERIOD WERE 1,665,698,
OF WHICH UNITED STATES STEEL'S SHARE WAS 17% AND CONSOLIDATED'S 5%.
THE GOVERNMENT CLAIMS THAT CONSOLIDATED HAS BECOME A MORE IMPORTANT
FACTOR SINCE THAT PERIOD, AND ALLEGES THAT BOOKINGS FOR 1946 IN THE
CONSOLIDATED MARKET WERE DIVIDED AMONG 90 FABRICATORS, OF WHICH UNITED
STATES STEEL HAD 13% AND CONSOLIDATED AND BETHLEHEM STEEL EACH HAD 11%.
THE NEXT LARGEST STRUCTURAL FABRICATORS HAD 9%, 6% AND 3% OF THE
TOTAL.  FN11  ALTHOUGH THE APPELLEES CHALLENGE THE ACCURACY OF THE
GOVERNMENT'S 1946 FIGURES, AND THE DISTRICT COURT MADE NO REFERENCE TO
THEM IN THE FINDINGS, WE ACCEPT THEM AS SUFFICIENTLY RELIABLE FOR OUR
PRESENT PURPOSE.  THE FIGURES ON WHICH THE GOVERNMENT RELIES
DEMONSTRATE THAT AT LEAST IN THE PAST COMPETITION IN STRUCTURAL STEEL
PRODUCTS HAS BEEN CONDUCTED ON A NATIONAL SCALE.  FIVE OUT OF THE TEN
STRUCTURAL FABRICATORS HAVING THE LARGEST SALES IN THE CONSOLIDATED
MARKET PERFORM THEIR FABRICATION OPERATIONS OUTSIDE THE AREA, INCLUDING
UNITED STATES STEEL AND BETHLEHEM STEEL.  PURCHASERS OF FABRICATED
STRUCTURAL PRODUCTS HAVE BEEN ABLE TO SECURE BIDS FROM FABRICATORS
THROUGHOUT THE COUNTRY, AND THEREFORE STATISTICS SHOWING THE SHARE OF
UNITED STATES STEEL AND CONSOLIDATED IN THE TOTAL CONSUMPTION OF
FABRICATED STRUCTURAL PRODUCTS IN ANY PRESCRIBED AREA ARE OF LITTLE
PROBATIVE VALUE IN ASCERTAINING THE EXTENT TO WHICH CONSUMERS OF THESE
PRODUCTS WOULD BE INJURED THROUGH ELIMINATION OF COMPETITION BETWEEN
THE TWO COMPANIES. 

AS IN THE CASE OF ROLLED STEEL PRODUCTS, HOWEVER, WARTIME
DEVELOPMENTS HAVE MADE PREWAR STATISTICS OF LITTLE RELEVANCE.  THE
APPELLEES URGE THREE REASONS WHY EASTERN FABRICATORS WILL BE AT A
COMPETITIVE DISADVANTAGE WITH WESTERN FABRICATORS FOR THE WESTERN
MARKET:  THE AVAILABILITY OF ROLLED STEEL PRODUCTS FROM THE GENEVA
PLANT AND OTHER WEST COAST PLANTS AT A LOWER PRICE, THE INCREASE IN
COMMERCIAL FREIGHT RATES ON FABRICATED PRODUCTS, AND THE ABOLITION OF
LAND GRANT RATES.  THE INCREASE IN FREIGHT RATES HAS MADE IT LESS
PROFITABLE FOR EASTERN FABRICATORS TO SELL IN THE WEST, AND THE
ELIMINATION OF LAND GRANT RATES ON GOVERNMENT SHIPMENTS HAS MADE IT
LESS PROFITABLE FOR EASTERN FABRICATORS TO SELL TO GOVERNMENT AGENCIES
IN THE WEST.  WHATEVER COMPETITION MAY HAVE EXISTED IN THE PAST BETWEEN
CONSOLIDATED AND THE TWO BRIDGE COMPANY SUBSIDIARIES OF UNITED STATES
STEEL, THE APPELLEES URGE, WILL EXIST TO A MUCH LESSER EXTENT IN THE
FUTURE.  FN12  CONSEQUENTLY, EVEN THOUGH THE GOVERNMENT MAY BE CORRECT
IN CLAIMING THAT THE ELEVEN-STATE AREA IS THE PROPER MARKET FOR
MEASURING COMPETITION WITH CONSOLIDATED, THE GOVERNMENT MAY NOT AT THE
SAME TIME CLAIM THAT PREWAR STATISTICS AS TO UNITED STATES STEEL'S
SHARE OF THAT MARKET ARE OF MAJOR SIGNIFICANCE. 

APART FROM THE QUESTION OF THE GEOGRAPHICAL SIZE OF THE MARKET, THE
APPELLEES URGE THAT THE BOOKINGS FOR FABRICATED STRUCTURAL STEEL
PRODUCTS ARE OF LITTLE SIGNIFICANCE BECAUSE CONSOLIDATED AND UNITED
STATES STEEL MAKE DIFFERENT TYPES OF STRUCTURAL STEEL PRODUCTS.  IN
VIEW OF THE FACT THAT STRUCTURAL STEEL JOBS ARE FABRICATED ON AN
INDIVIDUAL BASIS, IT IS DIFFICULT TO COMPARE THE OUTPUT OF UNITED
STATES STEEL WITH THAT OF CONSOLIDATED, BUT THE APPELLEES ARGUE THAT IN
GENERAL CONSOLIDATED DOES ONLY LIGHT AND MEDIUM FABRICATION, WHEREAS
UNITED STATES STEEL DOES HEAVY FABRICATION.  THE APPELLEES SUPPORT
THEIR ARGUMENT WITH AN ELABORATE STATISTICAL ANALYSIS OF BIDS BY THE
TWO COMPANIES.  THOSE FIGURES SHOW THAT CONSOLIDATED AND UNITED STATES
STEEL SUBMITTED BIDS FOR THE SAME PROJECT IN A VERY SMALL NUMBER OF
INSTANCES.  FN13  SUCH FIGURES ARE NOT CONCLUSIVE OF LACK OF
COMPETITION; THE GOVERNMENT SUGGESTS THAT KNOWLEDGE THAT ONE PARTY HAS
SUBMITTED A BID MAY DISCOURAGE OTHERS FROM BIDDING.  THE GOVERNMENT HAS
INTRODUCED VERY LITTLE EVIDENCE, HOWEVER, TO SHOW THAT IN FACT THE
TYPES OF STRUCTURAL STEEL PRODUCTS SOLD BY CONSOLIDATED ARE SIMILAR TO
THOSE SOLD BY UNITED STATES STEEL.  THE APPELLEES FURTHER URGE THAT
ONLY A SMALL PROPORTION OF CONSOLIDATED'S BUSINESS FELL IN THE CATEGORY
OF STRUCTURAL STEEL PRODUCTS, AND THAT AS TO PLATE FABRICATION AND
MISCELLANEOUS WORK THERE WAS NO COMPETITION WITH UNITED STATES STEEL
WHATSOEVER.  THE TRIAL COURT FOUND ON THIS ISSUE THAT 16% OF
CONSOLIDATED'S BUSINESS WAS IN STRUCTURAL STEEL PRODUCTS AND 70% IN
PLATE FABRICATION.  ON THE BASIS OF THE STATISTICS HERE SUMMARIZED, THE
TRIAL COURT FOUND THAT COMPETITION BETWEEN THE TWO COMPANIES IN THE
MANUFACTURE AND SALE OF FABRICATED STRUCTURAL STEEL PRODUCTS WAS NOT
SUBSTANTIAL. 

THE GOVERNMENT ALSO ARGUES THAT COMPETITION WILL BE ELIMINATED
BETWEEN CONSOLIDATED AND NATIONAL TUBE IN THE SALE OF PIPE.  IN THIS
FIELD WE HAVE NO DIFFICULTY IN DETERMINING THE GEOGRAPHICAL SCOPE OF
THE MARKET TO BE CONSIDERED IN DETERMINING THE EXTENT OF COMPETITION,
SINCE THE GOVERNMENT CLAIMS THAT CONSOLIDATED AND NATIONAL TUBE COMPETE
ON A NATION-WIDE SCALE IN THE FIELD OF LARGE DIAMETER PIPE FOR OIL AND
GAS PIPELINES.  OTHER TYPES OF PIPE MADE BY THE TWO CONCERNS ARE
APPARENTLY NOT COMPETITIVE AS THE GOVERNMENT DOES NOT CONTEST THIS
ASSERTION OF THE APPELLEES.  FN14  CONSOLIDATED IN THE PAST HAS
SPECIALIZED IN COMPARATIVELY LIGHT WALLED PIPE FOR LOW PRESSURE
PURPOSES, SUCH AS IRRIGATION AND WATER TRANSMISSION, WHEREAS NATIONAL
TUBE HAS MADE A HEAVY WALLED PIPE FOR HIGH PRESSURE PURPOSES WHICH IS
USED CHIEFLY IN THE OIL AND GAS INDUSTRY.  NATIONAL TUBE PIPE IS
SUBSTANTIALLY CHEAPER TO PRODUCE.  THE RECORD DOES SHOW, HOWEVER, THAT
IN THE LAST FEW YEARS CONSOLIDATED HAS SUPPLIED LARGE DIAMETER PIPE FOR
OIL AND GAS PIPELINES ON AT LEAST FOUR OCCASIONS IN THREE OF WHICH
NATIONAL TUBE ALSO SUPPLIED PART OF THE PIPE REQUIREMENTS.  FN15
ALTHOUGH THE RECORD DOES NOT SHOW THE EXTENT OF CONSOLIDATED'S BUSINESS
IN THIS FIELD, ONE OF THE WITNESSES ESTIMATED THAT CONSOLIDATED'S
CONTRACT TO FURNISH 90% OF THE PIPE FOR THE TRANS-ARABIAN PIPELINE
WOULD RUN TO ALMOST $30,000,000.  THE APPELLEES SEEK TO MINIMIZE THE
IMPORTANCE OF COMPETITION IN THIS FIELD BY POINTING OUT THAT THE PIPE
TO BE USED FOR THE TRANS-ARABIAN PIPELINE IS 30 AND 31 INCHES IN
DIAMETER, WHICH IS TOO LARGE A SIZE TO BE MADE BY THE SEAMLESS PROCESS
EMPLOYED BY NATIONAL TUBE.  THE RECORD IS BARREN ON THE COMPARATIVE
PRODUCTION BETWEEN CONSOLIDATED AND ITS COMPETITORS, OTHER THAN UNITED
STATES STEEL, IN THE MANUFACTURE OF LARGE PIPE.  THE RECORD DOES SHOW
THAT OTHER MAJOR COMPANIES, NOT CONNECTED WITH ANY OF THE PARTIES TO
THIS PROCEEDING, DO MANUFACTURE WELDED AND SEAMLESS PIPE.  FN16  THE
APPELLEES FURTHER CLAIM THAT UNDER NORMAL CIRCUMSTANCES CONSOLIDATED
AND NATIONAL TUBE WOULD NOT COMPETE IN THIS FIELD BECAUSE CONSOLIDATED
PIPE SELLS FOR $30 A TON MORE THAN NATIONAL TUBE PIPE, AND THAT
CONSOLIDATED IS ABLE TO SELL ITS PIPE ONLY BECAUSE OF THE INABILITY OF
NATIONAL TUBE AND OTHER CONCERNS TO TAKE ON ADDITIONAL ORDERS.  THE
GOVERNMENT ARGUES IN REPLY THAT CONSOLIDATED MAY BE ABLE TO REDUCE ITS
COSTS OF PRODUCTION IF A SUFFICIENTLY LARGE VOLUME OF ORDERS IS
OBTAINED, BUT NO EVIDENCE IS ADDUCED TO SUPPORT SUCH A CONCLUSION. 

THE OPINION OF THE TRIAL COURT SUMMARIZED THE FACTS OUTLINED ABOVE,
AND CONCLUDED THAT THERE WAS NO SUBSTANTIAL COMPETITION BETWEEN
NATIONAL TUBE AND CONSOLIDATED IN THE SALE OF PIPE; ONE OF THE FINDINGS
WENT EVEN FURTHER, STATING THAT THE TWO COMPANIES "DO NOT COMPETE" IN
THE SALE OF THEIR PIPE PRODUCTS. 

THE TRIAL COURT ALSO CONCLUDED THAT THE GOVERNMENT HAD FAILED TO
PROVE THAT UNITED STATES STEEL HAD ATTEMPTED TO MONOPOLIZE THE BUSINESS
OF FABRICATING STEEL PRODUCTS IN THE CONSOLIDATED MARKET IN VIOLATION
OF SEC. 2.  THE TRIAL JUDGE APPARENTLY WAS OF THE OPINION THAT SINCE
THE PURCHASE OF CONSOLIDATED DID NOT CONSTITUTE A VIOLATION OF SEC. 1,
IT COULD NOT CONSTITUTE A VIOLATION OF SEC. 2, SINCE EVERY ATTEMPT TO
MONOPOLIZE MUST ALSO CONSTITUTE AN ILLEGAL RESTRAINT.  IN HIS FINDINGS
THE TRIAL JUDGE CONCLUDED THAT THE PURCHASE AGREEMENT WAS ENTERED INTO
"FOR SOUND BUSINESS REASONS" AND WITH NO INTENT TO MONOPOLIZE THE
PRODUCTION AND SALE OF FABRICATED STEEL PRODUCTS. 

                                 II. 

IN SUPPORT OF ITS POSITION THAT THE PROPOSED CONTRACT VIOLATES SEC. 1
OF THE SHERMAN ACT, THE GOVERNMENT URGES THAT ALL THE LEGAL CONCLUSIONS
OF THE DISTRICT COURT WERE ERRONEOUS.  IT IS ARGUED THAT, WITHOUT
REGARD TO THE PERCENTAGES OF CONSUMPTION OF ROLLED STEEL PRODUCTS BY
CONSOLIDATED JUST CONSIDERED, THE ACQUISITION BY UNITED STATES STEEL OF
CONSOLIDATED VIOLATES THE SHERMAN ACT.  SUCH AN ARRANGEMENT, IT IS
CLAIMED, EXCLUDES OTHER PRODUCERS OF ROLLED STEEL PRODUCTS FROM THE
CONSOLIDATED MARKET AND CONSTITUTES AN ILLEGAL RESTRAINT PER SE TO
WHICH THE RULE OF REASON IS INAPPLICABLE.  OR, PHRASING THE ARGUMENT
DIFFERENTLY, THE GOVERNMENT'S CONTENTION SEEMS TO BE THAT THE
ACQUISITION OF FACILITIES WHICH PROVIDE A CONTROLLED MARKET FOR THE
OUTPUT OF THE GENEVA PLANT IS A PROCESS OF VERTICAL INTEGRATION AND
INVALID PER SE UNDER THE SHERMAN ACT.  THE ACQUISITION OF CONSOLIDATED,
IT IS POINTED OUT, WOULD ALSO ELIMINATE COMPETITION BETWEEN
CONSOLIDATED AND THE SUBSIDIARIES OF UNITED STATES STEEL IN THE SALE OF
STRUCTURAL STEEL PRODUCTS AND PIPE PRODUCTS, AND WOULD ELIMINATE
POTENTIAL COMPETITION FROM CONSOLIDATED IN THE SALE OF OTHER STEEL
PRODUCTS.  WE ALSO NOTE THAT THE ACQUISITION OF CONSOLIDATED WILL BRING
UNITED STATES STEEL FOR THE FIRST TIME INTO THE FIELD OF PLATE
FABRICATION. 

A. WE FIRST LAY TO ONE SIDE A POSSIBLE OBJECTION TO MEASURING THE
INJURY TO COMPETITION BY REFERENCE TO A MARKET WHICH IS LESS THAN
NATION-WIDE IN AREA.  THE SHERMAN ACT IS NOT LIMITED TO ELIMINATING
RESTRAINTS WHOSE EFFECTS COVER THE ENTIRE UNITED STATES; WE HAVE
CONSISTENTLY HELD THAT WHERE THE RELEVANT COMPETITIVE MARKET COVERS
ONLY A SMALL AREA THE SHERMAN ACT MAY BE INVOKED TO PREVENT
UNREASONABLE RESTRAINTS WITHIN THAT AREA.  IN UNITED STATES V. YELLOW
CAB CO., 332 U.S. 218, WE SUSTAINED THE VALIDITY OF A COMPLAINT WHICH
ALLEGED THAT THE DEFENDANTS HAD MONOPOLIZED THE CAB OPERATING BUSINESS
IN FOUR LARGE CITIES.  FN17  IT IS THE VOLUME IN THE AREA WHICH THE
ALLEGED RESTRAINTS AFFECT THAT IS IMPORTANT.  IN UNITED STATES V.
GRIFFITH, 334 U.S. 100, WE FOUND RESTRAINT OF TRADE BY A CHAIN OF
MOTION PICTURE EXHIBITORS COVERING A SMALL AREA.  ALTHOUGH OUR PREVIOUS
DISCUSSION HAS INDICATED THE DIFFICULTIES IN ACCEPTING THE ELEVEN-STATE
AREA IN WHICH CONSOLIDATED SELLS ITS PRODUCTS AS THE RELEVANT
COMPETITIVE MARKET, WE ACCEPT FOR THE PURPOSES OF DECISION THE
GOVERNMENT'S ARGUMENT THAT THIS AREA IS THE ONE TO BE CONSIDERED IN
MEASURING THE EFFECT ON COMPETITION OF THE WITHDRAWAL OF CONSOLIDATED
AS A MARKET FOR OTHER ROLLED STEEL PRODUCERS AND OF THE BRINGING
TOGETHER UNDER COMMON CONTROL OF CONSOLIDATED AND THE FABRICATING
SUBSIDIARIES OF UNITED STATES STEEL. 

B. THE GOVERNMENT RELIES HEAVILY ON UNITED STATES V. YELLOW CAB CO.,
SUPRA, TO SUPPORT ITS ARGUMENT THAT THE WITHDRAWAL OF CONSOLIDATED AS A
POSSIBLE CONSUMER FOR THE GOODS OF OTHER ROLLED STEEL PRODUCERS
CONSTITUTES AN ILLEGAL RESTRAINT.  THE COMPLAINT IN THE YELLOW CAB CASE
CHARGED THAT THERE WAS A PLAN, AN INTENT, TO MONOPOLIZE THE CAB
BUSINESS, FROM MANUFACTURE THROUGH OPERATION IN THE FOUR LARGE CITIES,
BY ACQUIRING CAB OPERATING COMPANIES OR INTERESTS THEREIN; TYING THOSE
COMPANIES INTO A CAB MANUFACTURING COMPANY AND REQUIRING THE OPERATING
COMPANIES TO PURCHASE THEIR CABS FROM THE MANUFACTURER AT A PRICE ABOVE
THE PREVAILING MARKET.  THERE WAS NO ALLEGATION THAT THE VOLUME OF CAB
PRODUCTION WHICH WAS THUS EXCLUDED AS A MARKET FOR RIVAL CAB
MANUFACTURERS WAS A SUBSTANTIAL PROPORTION OF THE TOTAL VOLUME OF CABS
PRODUCED, AND THE GOVERNMENT CONCLUDES THAT THE CASE STANDS FOR THE
PROPOSITION THAT IT IS ILLEGAL PER SE FOR A MANUFACTURER TO PREEMPT ANY
MARKET FOR HIS GOODS THROUGH VERTICAL INTEGRATION PROVIDED THAT AN
"APPRECIABLE" AMOUNT OF INTERSTATE COMMERCE IS INVOLVED.  FN18 

WE DO NOT CONSTRUE OUR HOLDING IN THE YELLOW CAB CASE TO MAKE ILLEGAL
THE ACQUISITION BY UNITED STATES STEEL OF THIS OUTLET FOR ITS ROLLED
STEEL WITHOUT CONSIDERATION OF ITS EFFECT ON THE OPPORTUNITIES OF OTHER
COMPETITOR PRODUCERS TO MARKET THEIR ROLLED STEEL.  FN19  IN DISCUSSING
THE CHARGE IN THE YELLOW CAB CASE, WE SAID THAT THE FACT THAT THE
CONSPIRATORS WERE INTEGRATED DID NOT INSULATE THEM FROM THE ACT, NOT
THAT CORPORATE INTEGRATION VIOLATED THE ACT.  IN THE COMPLAINT THE
GOVERNMENT CHARGED THAT THE DEFENDANTS HAD COMBINED AND CONSPIRED TO
EFFECT THE RESTRAINTS IN QUESTION WITH THE INTENT AND PURPOSE OF
MONOPOLIZING THE CAB BUSINESS IN CERTAIN CITIES, AND ON MOTION TO
DISMISS THAT ALLEGATION WAS ACCEPTED AS TRUE.  WHERE A COMPLAINT
CHARGES SUCH AN UNREASONABLE RESTRAINT AS THE FACTS OF THE YELLOW CAB
CASE SHOW, THE AMOUNT OF INTERSTATE TRADE AFFECTED IS IMMATERIAL IN
DETERMINING WHETHER A VIOLATION OF THE SHERMAN ACT HAS BEEN CHARGED.  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.  FOR EXAMPLE, WHERE A COMPLAINT CHARGES THAT
THE DEFENDANTS HAVE ENGAGED IN PRICE FIXING,  FN20  OR HAVE CONCERTEDLY
REFUSED TO DEAL WITH NON-MEMBERS OF AN ASSOCIATION N21, OR HAVE
LICENSED A PATENTED DEVICE ON CONDITION THAT UNPATENTED MATERIALS BE
EMPLOYED IN CONJUNCTION WITH THE PATENTED DEVICE,  FN22 THEN THE AMOUNT
OF COMMERCE INVOLVED IS IMMATERIAL BECAUSE SUCH RESTRAINTS ARE ILLEGAL
PER SE.  NOTHING IN THE YELLOW CAB CASE SUPPORTS THE THEORY THAT ALL
EXCLUSIVE DEALING ARRANGEMENTS ARE ILLEGAL PER SE. 

A SUBSIDIARY WILL IN ALL PROBABILITY DEAL ONLY WITH ITS PARENT FOR
GOODS THE PARENT CAN FURNISH.  THAT FACT, HOWEVER, DOES NOT MAKE THE
ACQUISITION INVALID.  WHEN OTHER ELEMENTS OF SHERMAN ACT VIOLATIONS ARE
PRESENT, THE FACT OF CORPORATE RELATIONSHIP IS MATERIAL AND CAN BE
CONSIDERED IN THE DETERMINATION OF WHETHER RESTRAINT OR ATTEMPT TO
RESTRAIN EXISTS.  THAT THIS IS THE TEACHING OF THE YELLOW CAB CASE IS
INDICATED BY THE FOLLOWING QUOTATION: 

"AND SO IN THIS CASE, THE COMMON OWNERSHIP AND CONTROL OF THE VARIOUS
CORPORATE APPELLEES ARE IMPOTENT TO LIBERATE THE ALLEGED COMBINATION
AND CONSPIRACY FROM THE IMPACT OF THE ACT.  THE COMPLAINT CHARGES THAT
THE RESTRAINT OF INTERSTATE TRADE WAS NOT ONLY EFFECTED BY THE
COMBINATION OF THE APPELLEES BUT WAS THE PRIMARY OBJECT OF THE
COMBINATION.  THE THEORY OF THE COMPLAINT, TO BORROW LANGUAGE FROM
UNITED STATES V. READING CO., 253 U.S. 26, 57, IS THAT 'DOMINATING
POWER' OVER THE CAB OPERATING COMPANIES 'WAS NOT OBTAINED BY NORMAL
EXPANSION TO MEET THE DEMANDS OF A BUSINESS GROWING AS A RESULT OF
SUPERIOR AND ENTERPRISING MANAGEMENT, BUT BY DELIBERATE, CALCULATED
PURCHASE FOR CONTROL.'  IF THAT THEORY IS BORNE OUT IN THIS CASE BY THE
EVIDENCE, COUPLED WITH PROOF OF AN UNDUE RESTRAINT OF INTERSTATE TRADE,
A PLAIN VIOLATION OF THE ACT HAS OCCURRED."  332 U.S. AT 227-28. 

THAT VIEW IS IN ACCORD WITH PREVIOUS DECISIONS OF THE COURT.  FN23 

THE LEGALITY OF THE ACQUISITION BY UNITED STATES STEEL OF A MARKET
OUTLET FOR ITS ROLLED STEEL THROUGH THE PURCHASE OF THE MANUFACTURING
FACILITIES OF CONSOLIDATED DEPENDS NOT MERELY UPON THE FACT OF THAT
ACQUIRED CONTROL BUT ALSO UPON MANY OTHER FACTORS.  EXCLUSIVE DEALINGS
FOR ROLLED STEEL BETWEEN CONSOLIDATED AND UNITED STATES STEEL, BROUGHT
ABOUT BY VERTICAL INTEGRATION OR OTHERWISE, ARE NOT ILLEGAL, AT ANY
RATE UNTIL THE EFFECT OF SUCH CONTROL IS TO UNREASONABLY RESTRICT THE
OPPORTUNITIES OF COMPETITORS TO MARKET THEIR PRODUCT. 

IN UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131, WE WERE
PRESENTED WITH A SITUATION IN WHICH THE GOVERNMENT CHARGED THAT
VERTICAL INTEGRATION WAS ILLEGAL UNDER THE SHERMAN ACT.  WE HELD THAT
CONTROL BY THE MAJOR PRODUCER-DISTRIBUTORS OVER NEARLY THREE-QUARTERS
OF THE FIRST-RUN THEATERS IN CITIES WITH POPULATION OVER 100,000 WAS
NOT OF ITSELF ILLEGAL, AND WE REMANDED THE CASE TO THE DISTRICT COURT
FOR FURTHER FINDINGS.  IN OUTLINING THE FACTORS WHICH WE CONSIDERED TO
BE SIGNIFICANT IN DETERMINING THE LEGALITY OF VERTICAL INTEGRATION, WE
EMPHASIZED THE IMPORTANCE OF CHARACTERIZING THE NATURE OF THE MARKET TO
BE SERVED, AND THE LEVERAGE ON THE MARKET WHICH THE PARTICULAR VERTICAL
INTEGRATION CREATES OR MAKES POSSIBLE.  A SECOND TEST WHICH WE
CONSIDERED IMPORTANT IN THE PARAMOUNT CASE WAS THE PURPOSE OR INTENT
WITH WHICH THE COMBINATION WAS CONCEIVED.  WHEN A COMBINATION THROUGH
ITS ACTUAL OPERATION RESULTS IN AN UNREASONABLE RESTRAINT, INTENT OR
PURPOSE MAY BE INFERRED; EVEN THOUGH NO UNREASONABLE RESTRAINT MAY BE
ACHIEVED, NEVERTHELESS A FINDING OF SPECIFIC INTENT TO ACCOMPLISH SUCH
AN UNREASONABLE RESTRAINT MAY RENDER THE ACTOR LIABLE UNDER THE SHERMAN
ACT.  COMPARE UNITED STATES V. GRIFFITH, 334 U.S. 100, 105.  FN24 

IT SEEMS CLEAR TO US THAT VERTICAL INTEGRATION, AS SUCH WITHOUT MORE,
CANNOT BE HELD VIOLATIVE OF THE SHERMAN ACT.  IT IS AN INDEFINITE TERM
WITHOUT EXPLICIT MEANING.  EVEN IN THE IRON INDUSTRY, WHERE COULD A
LINE BE DRAWN - AT THE END OF MINING THE ORE, THE PRODUCTION OF THE PIG
IRON OR STEEL INGOTS, WHEN THE ROLLING MILL OPERATION IS COMPLETED,
FABRICATION ON ORDER OR AT SOME STAGE OF MANUFACTURE INTO STANDARD
MERCHANDISE?  NO ANSWER WOULD BE POSSIBLE AND THEREFORE THE EXTENT OF
PERMISSIBLE INTEGRATION MUST BE GOVERNED, AS OTHER FACTORS IN SHERMAN
ACT VIOLATIONS, BY THE OTHER CIRCUMSTANCES OF INDIVIDUAL CASES. 
TECHNOLOGICAL ADVANCES MAY EASILY REQUIRE A BASIC INDUSTRY PLANT TO
EXPAND ITS PROCESSES INTO SEMI-FINISHED OR FINISHED GOODS SO AS TO
PRODUCE DESIRED ARTICLES IN GREATER VOLUME AND WITH LESS EXPENSE.    IT
IS NOT FOR COURTS TO DETERMINE THE COURSE OF THE NATION'S ECONOMIC
DEVELOPMENT.  ECONOMISTS MAY RECOMMEND, THE LEGISLATIVE AND EXECUTIVE
BRANCHES MAY CHART LEGAL COURSES BY WHICH THE COMPETITIVE FORCES OF
BUSINESS CAN SEEK TO REDUCE COSTS AND INCREASE PRODUCTION SO THAT A
HIGHER STANDARD OF LIVING MAY BE AVAILABLE TO ALL.  THE EVILS AND
DANGERS OF MONOPOLY AND ATTEMPTS TO MONOPOLIZE THAT GROW OUT OF SIZE
AND EFFORTS TO ELIMINATE OTHERS FROM MARKETS, LARGE OR SMALL, HAVE
CAUSED CONGRESS AND THE EXECUTIVE TO REGULATE COMMERCE AND TRADE IN
MANY RESPECTS.  BUT NO DIRECTION HAS APPEARED OF A PUBLIC POLICY THAT
FORBIDS, PER SE, AN EXPANSION OF FACILITIES OF AN EXISTING COMPANY TO
MEET THE NEEDS OF NEW MARKETS OF A COMMUNITY, WHETHER THAT COMMUNITY IS
NATION-WIDE OR COUNTY-WIDE.  ON THE OTHER HAND, THE COURTS HAVE BEEN
GIVEN BY CONGRESS WIDE POWERS IN MONOPOLY REGULATION.  THE VERY
BROADNESS OF TERMS SUCH AS RESTRAINT OF TRADE, SUBSTANTIAL COMPETITION
AND PURPOSE TO MONOPOLIZE HAVE PLACED UPON COURTS THE RESPONSIBILITY TO
APPLY THE SHERMAN ACT SO AS TO AVOID THE EVILS AT WHICH CONGRESS
AIMED.  THE BASIC INDUSTRIES, WITH FEW EXCEPTIONS, DO NOT APPROACH IN
AMERICA A CARTELIZED FORM.  IF BUSINESSES ARE TO BE FORBIDDEN FROM
ENTERING INTO DIFFERENT STAGES OF PRODUCTION THAT ORDER MUST COME FROM
CONGRESS, NOT THE COURTS. 

APPLYING THE STANDARDS LAID DOWN IN THE PARAMOUNT CASE, WE CONCLUDE
THAT THE SO-CALLED VERTICAL INTEGRATION RESULTING FROM THE ACQUISITION
OF CONSOLIDATED DOES NOT UNREASONABLY RESTRICT THE OPPORTUNITIES OF THE
COMPETITOR PRODUCERS OF ROLLED STEEL TO MARKET THEIR PRODUCT.  WE
ACCEPT AS THE RELEVANT COMPETITIVE MARKET THE TOTAL DEMAND FOR ROLLED
STEEL PRODUCTS IN THE ELEVEN-STATE AREA; OVER THE PAST TEN YEARS
CONSOLIDATED HAS ACCOUNTED FOR ONLY 3% OF THAT DEMAND, AND IF
EXPECTATIONS AS TO THE DEVELOPMENT OF THE WESTERN STEEL INDUSTRY ARE
REALIZED, CONSOLIDATED'S PROPORTION MAY BE EXPECTED TO BE LOWER THAN
THAT FIGURE IN THE FUTURE.  NOR CAN WE FIND A SPECIFIC INTENT IN THE
PRESENT CASE TO ACCOMPLISH AN UNREASONABLE RESTRAINT, FOR REASONS WHICH
WE DISCUSS UNDER HEADING III OF THIS OPINION. 

C. WE TURN NOW TO A DISCUSSION OF THE SIGNIFICANCE, AS TO POSSIBLE
VIOLATION OF THE SHERMAN ACT, OF THE FACT THAT CONSOLIDATED HAS BEEN A
COMPETITOR OF UNITED STATES STEEL IN STRUCTURAL STEEL FABRICATION AND
IN THE MANUFACTURE OF PIPE.  THE SAME TESTS WHICH MEASURE THE LEGALITY
OF VERTICAL INTEGRATION BY ACQUISITION ARE ALSO APPLICABLE TO THE
ACQUISITION OF COMPETITORS IN IDENTICAL OR SIMILAR LINES OF
MERCHANDISE.  IT IS FIRST NECESSARY TO DELIMIT THE MARKET IN WHICH THE
CONCERNS COMPETE AND THEN DETERMINE THE EXTENT TO WHICH THE CONCERNS
ARE IN COMPETITION IN THAT MARKET.  IF SUCH ACQUISITION RESULTS IN OR
IS AIMED AT UNREASONABLE RESTRAINT, THEN THE PURCHASE IS FORBIDDEN BY
THE SHERMAN ACT.  IN DETERMINING WHAT CONSTITUTES UNREASONABLE
RESTRAINT, WE DO NOT THINK THE DOLLAR VOLUME IS IN ITSELF OF COMPELLING
SIGNIFICANCE; WE LOOK RATHER TO THE PERCENTAGE OF BUSINESS CONTROLLED,
THE STRENGTH OF THE REMAINING COMPETITION, WHETHER THE ACTION SPRINGS
FROM BUSINESS REQUIREMENTS OR PURPOSE TO MONOPOLIZE, THE PROBABLE
DEVELOPMENT OF THE INDUSTRY, CONSUMER DEMANDS, AND OTHER
CHARACTERISTICS OF THE MARKET.  WE DO NOT UNDERTAKE TO PRESCRIBE ANY
SET OF PERCENTAGE FIGURES BY WHICH TO MEASURE THE REASONABLENESS OF A
CORPORATION'S ENLARGEMENT OF ITS ACTIVITIES BY THE PURCHASE OF THE
ASSETS OF A COMPETITOR.  FN25  THE RELATIVE EFFECT OF PERCENTAGE
COMMAND OF A MARKET VARIES WITH THE SETTING IN WHICH THAT FACTOR IS
PLACED. 

THE UNITED STATES MAKES THE POINT THAT THE ACQUISITION OF
CONSOLIDATED WOULD PRECLUDE AND RESTRAIN SUBSTANTIAL POTENTIAL
COMPETITION IN THE PRODUCTION AND SALE OF OTHER STEEL PRODUCTS THAN
FABRICATED STRUCTURAL STEEL AND PIPE.  FORCE IS ADDED TO THIS
CONTENTION BY THE FACT, ADVERTED TO ABOVE AT PAGES 500 AND 512, THAT
UNITED STATES STEEL DOES NO PLATE FABRICATION WHILE CONSOLIDATED DOES. 
BY PLATE FABRICATION CONSOLIDATED PRODUCES MANY ARTICLES NOT NOW
PRODUCED BY UNITED STATES STEEL.  WE MENTION, AS EXAMPLES, BOILERS, GAS
TANKS, SMOKE STACKS, STORAGE TANKS AND BARGES.  ATTENTION IS ALSO
CALLED TO THE WAR ACTIVITIES OF CONSOLIDATED IN STEEL SHIPBUILDING AS
INDICATIVE OF ITS POTENTIALITIES AS A COMPETITOR.  WE HAVE NOTED, PP.
500-501, SUPRA, THAT THIS CONSTRUCTION WAS UNDER GOVERNMENT DIRECTION
AND FINANCING.  WE AGREE THAT ANY ACQUISITION OF FABRICATING EQUIPMENT
ELIMINATES SOME POTENTIAL COMPETITION FROM ANYONE WHO MIGHT OWN OR
ACQUIRE SUCH FACILITIES.  WE AGREE, TOO, WITH THE GOVERNMENT'S POSITION
THAT POTENTIAL COMPETITION FROM PRODUCERS OF PRESENTLY NON-COMPETITIVE
ARTICLES AS WELL AS THE POSSIBILITY THAT ACQUIRED FACILITIES MAY BE
USED IN THE FUTURE FOR THE PRODUCTION OF NEW ARTICLES IN COMPETITION
WITH OTHERS MAY BE TAKEN INTO CONSIDERATION IN WEIGHING THE EFFECT OF
ANY ACQUISITION OF ASSETS ON RESTRAINT OF TRADE.  FN26 

THE GOVERNMENT'S ARGUMENT, HOWEVER, TAKES US INTO HIGHLY SPECULATIVE
SITUATIONS.  STEEL SHIP CONSTRUCTION FOR WAR PURPOSES WAS AN ENTERPRISE
UNDERTAKEN AT GOVERNMENT EXPENSE.  WE KNOW OF NOTHING FROM THE RECORD
THAT WOULD LEAD CONSOLIDATED OR UNITED STATES STEEL TO BRANCH OUT INTO
THE PEACE-TIME STEEL SHIP INDUSTRY AT THEIR OWN RISK.  THE NECESSARY
YARDS HAVE BEEN SOLD.  IT IS TRUE THAT UNITED STATES STEEL MIGHT GO
INTO PLATE FABRICATION.  THE RECORD SHOWS NOTHING AS TO PRODUCTION OR
DEMAND IN THE CONSOLIDATED TRADE AREA FOR PLATE FABRICATED ARTICLES. 
NOTHING APPEARS AS TO THE NUMBER OF PRODUCERS OF SUCH GOODS IN THAT
TERRITORY.  WHAT WE HAVE SAID IN OTHER PLACES IN THIS OPINION AS TO THE
GROWING STEEL INDUSTRY IN THIS AREA IS PERTINENT HERE.  EASTERN
FABRICATORS WILL FIND IT DIFFICULT TO MEET COMPETITION FROM WESTERN
FABRICATORS IN THE WESTERN MARKET.  CHEAPER WESTERN ROLLED STEEL AND
FREIGHT RATES ARE A HANDICAP TO EASTERN FABRICATORS.  LOOKING AT THE
SITUATION HERE PRESENTED, WE ARE UNWILLING TO HOLD THAT POSSIBILITIES
OF INTERFERENCE WITH FUTURE COMPETITION ARE SERIOUS ENOUGH TO JUSTIFY
US IN DECLARING THAT THIS CONTRACT WILL BRING ABOUT UNLAWFUL
RESTRAINT. 

WE CONCLUDE THAT IN THIS CASE THE GOVERNMENT HAS FAILED TO PROVE THAT
THE ELIMINATION OF COMPETITION BETWEEN CONSOLIDATED AND THE STRUCTURAL
FABRICATING SUBSIDIARIES OF UNITED STATES STEEL CONSTITUTES AN
UNREASONABLE RESTRAINT.  IF WE MAKE THE DOUBTFUL ASSUMPTION THAT UNITED
STATES STEEL COULD BE EXPECTED IN THE FUTURE TO SELL 13% OF THE TOTAL
OF STRUCTURAL STEEL PRODUCTS IN THE CONSOLIDATED TRADE AREA AND THAT
CONSOLIDATED COULD BE EXPECTED TO SELL 11%, WE CONCLUDE THAT WHERE WE
HAVE THE PRESENT UNUSUAL CONDITIONS OF THE WESTERN STEEL INDUSTRY AND
IN VIEW OF THE FACTS OF THIS CASE AS DEVELOPED AT PAGES 512 TO 516, OF
THIS OPINION, IT CAN NOT BE SAID THERE WOULD BE AN UNREASONABLE
RESTRAINT OF TRADE.  TO HOLD THIS DOES NOT IMPLY THAT ADDITIONAL
ACQUISITIONS OF FABRICATING FACILITIES FOR STRUCTURAL STEEL WOULD NOT
BECOME MONOPOLISTIC.  NOTWITHSTANDING SOME DIFFERENCES AS TO THE
BUSINESS OF CONSOLIDATED AND UNITED STATES STEEL IN RESPECT TO THE
CHARACTER OF STRUCTURAL STEEL PRODUCTS FABRICATED BY EACH, THERE IS
COMPETITION BETWEEN THE TWO FOR BOTH LIGHT AND HEAVY WORK.  THE WESTERN
STEEL INDUSTRY IS DEVELOPING.  FONTANA AND GENEVA AS WELL AS OTHER
PRODUCERS ARE MAKING AVAILABLE FOR FABRICATORS LARGER SUPPLIES OF
ROLLED STEEL SO THAT THE WEST IS BECOMING LESS DEPENDENT ON EASTERN
SUPPLIERS.  WE ARE OF THE OPINION, MOREOVER, IN VIEW OF THE NUMBER OF
WEST COAST FABRICATORS (SEE PP. 502-503) AND THE ABILITY OF OUT-OF-THE
AREA FABRICATORS TO COMPETE BECAUSE OF THE SPECIALIZED CHARACTER OF
STRUCTURAL STEEL PRODUCTION IN REGARD TO ORDERS AND DESIGNS, THAT THIS
ACQUISITION IS PERMISSIBLE. 

WE LIKEWISE CONCLUDE THAT THE ELIMINATION OF COMPETITION BETWEEN
CONSOLIDATED AND NATIONAL TUBE (A UNITED STATES STEEL SUBSIDIARY) DOES
NOT CONSTITUTE AN UNREASONABLE RESTRAINT.  COMPETITION AT THE TIME OF
THE CONTRACT WAS RESTRICTED TO THE SALE OF LARGE DIAMETER PIPE FOR OIL
AND GAS PIPELINES, SEE PAGES 516 TO 518, SUPRA, AND THE ONLY INDICATION
IN THE RECORD THAT COMPETITION IN PIPE WOULD EXIST IN A BROADER FIELD
IN THE FUTURE IS CONTAINED IN THE SUGGESTION, WITHOUT PROOF OR
SPECIFICATION, THAT CONSOLIDATED THROUGH TECHNOLOGICAL ADVANCES OR
BUSINESS EXPANSION, MIGHT PRODUCE A WIDER RANGE OF PIPE SIZES AND
TYPES.  THIS IS NOT ENOUGH TO PERSUADE US THAT THE PURCHASE WILL UNDULY
RESTRAIN TRADE IN PIPE.  THE RECORD DOES SHOW THAT IN THREE INSTANCES
CONSOLIDATED AND NATIONAL TUBE EACH SUPPLIED PIPE FOR A NEW PIPELINE. 
IT IS CLEAR THAT THESE LINE PIPE CONTRACTS WERE OBTAINED BY
CONSOLIDATED IN A SELLER'S MARKET.  WE ARE GIVEN NOTHING AS TO THE
NATIONAL PRODUCTION OF OIL AND GAS TRUNKLINE PIPE OR THE RELATION OF
THE PIPE SOLD BY CONSOLIDATED AND NATIONAL TUBE TO THIS PRODUCTION. 
THE GOVERNMENT DOES NOT CONTEST APPELLEES' STATEMENT THAT CONSOLIDATED
PIPE FOR THIS PURPOSE IS SUBSTANTIALLY MORE EXPENSIVE THAN SEAMLESS
PIPE, AND IN THE ABSENCE OF A SHOWING THAT WELDED PIPE HAS ADVANTAGES
OVER SEAMLESS PIPE TO COMPENSATE FOR THE INCREASED COST OR THAT
CONSOLIDATED'S PRODUCTION COSTS MAY BE EXPECTED TO DECLINE WITH AN
INCREASE IN VOLUME, IT DOES NOT SEEM TO US THAT IT HAS BEEN SHOWN THAT
COMPETITION IN THIS FIELD BETWEEN THE PARTIES TO THIS CONTRACT IS SO
SUBSTANTIAL THAT ITS ELIMINATION UNDER THESE CIRCUMSTANCES CONSTITUTES
AN UNREASONABLE RESTRAINT. 

THE GOVERNMENT CITES FOUR ANTITRUST CASES INVOLVING RAILROADS TO
SUPPORT ITS ARGUMENT THAT CONTROL BY ONE COMPETITOR OVER ANOTHER
VIOLATES THE SHERMAN ACT, EVEN THOUGH THE PERCENTAGE OF BUSINESS FOR
WHICH THEY COMPETE MAY BE SMALL.  FN27  THE APPELLEES CITE CASES FROM
THIS COURT AND LOWER COURTS IN WHICH ACQUISITION BY ONE COMPETITOR OF
ANOTHER WAS HELD NOT TO VIOLATE THE ANTITRUST LAWS.  FN28  WE DO NOT
STOP TO EXAMINE THOSE CASES TO DETERMINE WHETHER WE WOULD NOW APPROVE
EITHER THEIR LANGUAGE OR THEIR HOLDINGS.  THE FACTUAL SITUATION IN ALL
THOSE CASES IS SO DISSIMILAR FROM THAT PRESENTED HERE THAT THEY FURNISH
LITTLE GUIDANCE IN DETERMINING WHETHER THE COMPETITION WHICH WILL BE
ELIMINATED THROUGH THE PURCHASE OF CONSOLIDATED IS SUFFICIENT TO
WARRANT INJUNCTIVE RELIEF REQUESTED BY THE GOVERNMENT.  FN29

                                 III. 

WE TURN LAST TO THE ALLEGATION OF THE GOVERNMENT THAT UNITED STATES
STEEL HAS ATTEMPTED TO MONOPOLIZE THE PRODUCTION AND SALE OF FABRICATED
STEEL PRODUCTS IN THE CONSOLIDATED MARKET.  WE THINK THAT THE TRIAL
COURT APPLIED TOO NARROW A TEST TO THIS CHARGE; EVEN THOUGH THE
RESTRAINT EFFECTED MAY BE REASONABLE UNDER SEC. 1, IT MAY CONSTITUTE AN
ATTEMPT TO MONOPOLIZE FORBIDDEN BY SEC. 2 IF A SPECIFIC INTENT TO
MONOPOLIZE MAY BE SHOWN.  FN30  TO SHOW THAT SPECIFIC INTENT, THE
GOVERNMENT RECITES THE LONG HISTORY OF ACQUISITIONS OF UNITED STATES
STEEL, AND ARGUES THAT THE PRESENT ACQUISITION WHEN VIEWED IN THE LIGHT
OF THAT HISTORY DEMONSTRATES THE EXISTENCE OF A SPECIFIC INTENT TO
MONOPOLIZE.  ALTHOUGH THIS COURT HELD IN 1920  FN31  THAT UNITED STATES
STEEL HAD NOT VIOLATED SEC. 2 THROUGH THE ACQUISITION OF 180 FORMERLY
INDEPENDENT CONCERNS, WE MAY LOOK TO THOSE ACQUISITIONS AS WELL AS TO
THE EIGHT ACQUISITIONS FROM 1924 TO 1943 TO DETERMINE THE INTENT OF
UNITED STATES STEEL IN ACQUIRING CONSOLIDATED. 

WE LOOK NOT ONLY TO THOSE ACQUISITIONS, HOWEVER, BUT ALSO TO THE
LATEST ACQUISITION - THE GOVERNMENT-OWNED PLANT AT GENEVA.  WE THINK
THAT LAST ACQUISITION IS OF SIGNIFICANCE IN ASCERTAINING THE INTENT OF
UNITED STATES STEEL IN ACQUIRING CONSOLIDATED.  FN32  THE BID OF UNITED
STATES STEEL FOR THE GENEVA PLANT EMPHASIZED THE IMPORTANCE OF ERECTING
FINISHING FACILITIES TO ASSURE A MARKET FOR GENEVA'S PRODUCTION, AND WE
THINK IT A FACT OF WEIGHT THAT MANY OF THE OTHER BIDS WERE CONDITIONED
UPON THE GOVERNMENT LENDING MONEY OR MAKING GRANTS FOR ERECTING SUCH
FACILITIES AT NO COST TO THE BIDDER.  NO OBJECTION WAS INTERPOSED WHEN
UNITED STATES STEEL INDICATED THAT IT PROPOSED TO SPEND $25,000,000 TO
ERECT A COLD REDUCTION MILL AT PITTSBURG, AND IT IS DOUBTFUL WHETHER
OBJECTIONS COULD BE RAISED IF UNITED STATES STEEL PROPOSED TO BUILD
INSTEAD OF TO BUY FROM A COMPETITOR FABRICATING FACILITIES SIMILAR TO
THOSE POSSESSED BY CONSOLIDATED.  THE REASONS GIVEN BY CONSOLIDATED AND
UNITED STATES STEEL FOR THE PURCHASE AND SALE OF THE ASSETS HERE
INVOLVED SEEM NOT TO INVOLVE ANY ACTION CONDEMNED BY THE SHERMAN ACT. 
GRANTING THAT THE SALE WILL TO SOME EXTENT AFFECT COMPETITION, THE
ACQUISITION OF A FIRM OUTLET TO ABSORB A PORTION OF GENEVA'S ROLLED
STEEL PRODUCTION SEEMS TO REFLECT A NORMAL BUSINESS PURPOSE RATHER THAN
A SCHEME TO CIRCUMVENT THE LAW.  UNITED STATES STEEL, DESPITE ITS LARGE
SALES, MANY ACQUISITIONS AND LEADING POSITION IN THE INDUSTRY, HAS
DECLINED IN THE PROPORTION OF ROLLED STEEL PRODUCTS IT MANUFACTURES IN
COMPARISON WITH ITS EARLY DAYS.  IN 1901 IT PRODUCED 50.1%; IN 1911,
45.7%; IN 1946, 30.4%.  FN33  FOR THE PERIOD 1937-1946, IT PRODUCED
33.2%.  FN34  ITS SIZE IS IMPRESSIVE.  SIZE HAS SIGNIFICANCE ALSO IN AN
APPRAISAL OF ALLEGED VIOLATIONS OF THE SHERMAN ACT.  BUT THE STEEL
INDUSTRY IS ALSO OF IMPRESSIVE SIZE AND THE WELCOME WESTWARD EXTENSION
OF THAT INDUSTRY REQUIRES THAT THE EXISTING COMPANIES GO INTO
PRODUCTION THERE OR ABANDON THAT MARKET TO OTHER ORGANIZATIONS. 

WE HAVE DEALT WITH THE OBJECTIONS TO THIS PURCHASE BECAUSE OF THE
EXCLUSION OF OTHER ROLLED STEEL PRODUCERS FROM SUPPLYING CONSOLIDATED'S
DEMAND FOR THAT PRODUCT AND BECAUSE OF THE ALLEGED RESTRAINT OF TRADE
INVOLVED IN THE EXTENSION OF UNITED STATES STEEL'S FABRICATING AND PIPE
COMMERCE.  IT HAS BEEN NECESSARY TO TREAT THESE ARGUMENTS SEPARATELY SO
AS TO ISOLATE THE FACTS AND FIGURES WHICH CONVINCE US THAT THESE
OBJECTIONS DO NOT RISE TO THE LEVEL OF PROVING A VIOLATION OF LAW.  IT
ONLY NEED BE ADDED THAT WE HAVE ALSO CONSIDERED THE VARIOUS ITEMS OF
OBJECTION IN THE AGGREGATE AND IN THE LIGHT OF THE CHARGE OF INTENT TO
MONOPOLIZE.  BUT EVEN FROM THAT POINT OF VIEW, THE GOVERNMENT HAS NOT
PERSUADED US THAT THE PROPOSED CONTRACT VIOLATES OUR PUBLIC POLICY AS
STATED IN THE SHERMAN ACT.    THE JUDGMENT OF THE DISTRICT COURT IS
AFFIRMED. 

FN1  SECTIONS 1, 2 AND 4, 15 U.S.C., READ, SO FAR AS APPLICABLE, AS
FOLLOWS: 

SEC. 1.  "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 HEREBY DECLARED TO BE
ILLEGAL:  ...  EVERY PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN
ANY COMBINATION OR CONSPIRACY DECLARED BY SECTIONS 1-7 OF THIS TITLE TO
BE ILLEGAL SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND, ON CONVICTION
THEREOF, SHALL BE PUNISHED BY FINE NOT EXCEEDING $5,000, OR BY
IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY BOTH SAID PUNISHMENTS, IN
THE DISCRETION OF THE COURT." 

SEC. 2.  "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, AND,
ON CONVICTION THEREOF, SHALL BE PUNISHED BY FINE NOT EXCEEDING $5,000,
OR BY IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY BOTH SAID PUNISHMENTS,
IN THE DISCRETION OF THE COURT." 

SEC. 4.  "THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE
INVESTED WITH JURISDICTION TO PREVENT AND RESTRAIN VIOLATIONS OF
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.  ...  " 

FN2  AN UNCONTESTED STATEMENT OF CONSOLIDATED'S SHIP BUILDING
ACTIVITIES DURING THE WAR YEARS APPEARS IN CONSOLIDATED'S BRIEF: 

"DURING THE WAR YEARS, ACTING UNDER GOVERNMENT SPONSORSHIP,
CONSOLIDATED CONSTRUCTED SHIPS FOR DEFENSE AND WAR PURPOSES FOR VARIOUS
GOVERNMENT PROCUREMENT AGENCIES BUT IT IS NO LONGER ENGAGED IN THIS
FIELD.  CONSOLIDATED'S WAR WORK WAS CONFINED TO SHIP AND ORDNANCE
CONSTRUCTION WITH GOVERNMENT FURNISHED FACILITIES, ALL OF WHICH HAVE
NOW BEEN ABANDONED.  CONSOLIDATED SHIPYARDS, INC., A CONSOLIDATED
SUBSIDIARY OPERATING A SMALL BOAT YARD, HAS DISPOSED OF ITS PLANT TO A
GROUP OF REAL ESTATE SPECULATORS.  THERE IS, THEREFORE, NO COMPETITION
BETWEEN U.S. STEEL AND CONSOLIDATED IN THE SHIPBUILDING BUSINESS." 

FN3  LOUISIANA AND TEXAS, WHICH ARE INCLUDED IN THE CONSOLIDATED
MARKET, ARE NOT LISTED IN THE CENSUS GROUPING, WHEREAS COLORADO AND
WYOMING, WHICH ARE LISTED IN THE CENSUS, ARE EXCLUDED FROM THE
CONSOLIDATED MARKET.  SIXTEENTH CENSUS OF THE UNITED STATES, 1940,
AREAS OF THE UNITED STATES 1940, BUREAU OF THE CENSUS, P. 3. 

FN4  IN 1924 THE FEDERAL TRADE COMMISSION ENTERED AN ORDER WHICH
CONCLUDED THAT UNITED STATES STEEL HAD VIOLATED SEC. 2 OF THE CLAYTON
ACT AND SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT BY ITS SO-CALLED
"PITTSBURGH PLUS" METHOD OF PRICING, ACCORDING TO WHICH ALL ROLLED
STEEL PRODUCTS WERE SOLD AT A DELIVERED PRICE INCLUDING FREIGHT FROM
PITTSBURGH TO THE DESTINATION, REGARDLESS OF THE ACTUAL POINT OF
SHIPMENT.  MATTER OF UNITED STATES STEEL CORP., 8 F.T.C. 1.  UNITED
STATES STEEL WAS ORDERED TO CEASE AND DESIST FROM SELLING ITS PRODUCTS
ON THAT BASIS, OR FROM EMPLOYING ANY BASING POINT OTHER THAN THE POINT
OF MANUFACTURE OR SHIPMENT.  IN 1938 UNITED STATES STEEL FILED A
PETITION TO REVIEW THAT ORDER IN THE THIRD CIRCUIT COURT OF APPEALS
ADMITTING THAT UNITED STATES STEEL HAD NEVER COMPLIED WITH THE LATTER
PART OF THE ORDER.  NO DECISION HAS YET BEEN REACHED IN THAT
PROCEEDING. 

FN5  COLD ROLLING IS THE NAME GIVEN TO THE PROCESS OF ROLLING STEEL
PRODUCTS AT TEMPERATURES RANGING FROM 50 DEGREE F. TO 240 DEGREE F.
COILS WHICH HAVE BEEN PRODUCED BY THE HOT ROLLING PROCESS ARE FED INTO
A COLD-REDUCTION MILL AND ROLLED INTO STRIP AND SHEETS WHICH ARE OF
MUCH HIGHER QUALITY THAN HOT ROLLED STRIP AND SHEETS.  SEE CAMP AND
FRANCIS, THE MAKING, SHAPING AND TREATING OF STEEL (5TH ED., 1940), PP.
1227-1245. 

FN6  THE BID OF COLORADO FUEL & IRON CORP. PROPOSED THAT THE
GOVERNMENT SPEND $47,935,000 FOR THE ERECTION OF ADDITIONAL FACILITIES,
INCLUDING OVER $25,000,000 FOR THE ERECTION OF A SHEET AND TIN-PLATE
MILL.  THE BID OF PACIFIC-AMERICAN STEEL IRON CORP. PROPOSED THAT THE
GOVERNMENT LEND THE BIDDER $25,000,000 FOR THE ERECTION OF A TIN-PLATE
MILL.  THE BID OF RILEY STEEL CO. PROPOSED THAT THE GOVERNMENT LEND THE
BIDDER $28,844,000 FOR THE CONSTRUCTION OF A SHEET MILL, TUBE MILL, AND
ADDITIONS TO THE STRUCTURAL MILL. 

FN7  THIS WAS NOT A PURCHASE OF STOCK OF A COMPETING COMPANY.  SEE
SEC. 7, CLAYTON ACT, 38 STAT. 730, 731; FEDERAL TRADE COMM'N V. WESTERN
MEAT CO., 272 U.S. 554.  IT MUST BE ASSUMED, HOWEVER, THAT THE PUBLIC
POLICY ANNOUNCED BY SEC. 7 OF THE CLAYTON ACT IS TO BE TAKEN INTO
CONSIDERATION IN DETERMINING WHETHER ACQUISITION OF ASSETS OF
CONSOLIDATED BY UNITED STATES STEEL WITH THE SAME ECONOMIC RESULTS AS
THE PURCHASE OF THE STOCK VIOLATES THE PROHIBITIONS OF THE SHERMAN ACT
AGAINST UNREASONABLE RESTRAINTS.  SEE HANDLER, INDUSTRIAL MERGERS AND
THE ANTI-TRUST LAWS, 32 COL. L. REV. 179, 266. 

IN 1941 THE TEMPORARY NATIONAL ECONOMIC COMMITTEE PROPOSED THAT SEC.
7 BE AMENDED TO APPLY TO ACQUISITION OF ASSETS AND TO REQUIRE PRIOR
APPROVAL BY THE FEDERAL TRADE COMMISSION.  SEE COMMENT, 57 YALE L.J.
613, FOR A DESCRIPTION OF THE BILLS WHICH HAVE BEEN INTRODUCED BEFORE
CONGRESS TO CARRY OUT THESE RECOMMENDATIONS. 

FN8  THE FOLLOWING TABLE WAS ACCEPTED BY THE TRIAL COURT AS CORRECT:

                        U.S. STEEL     ESTIMATED      U.S. STEEL

          INDUSTRY     SUBSIDIARIES   CONSUMPTION  SUBSIDIARIES
CONSOLIDATED'S

         PRODUCTION PRODUCTION    ALL ROLLED      SHIPMENT OF
PURCHASES

YEAR    ALL ROLLED     ALL ROLLED       STEEL        ALL ROLLED
 ALL

            STEEL         STEEL       PRODUCTS 11        STEEL
ROLLED STEEL

           PRODUCTS       PRODUCTS       STATES      PRODUCTION
INTO

                PRODUCTS

           THE 11 STATES 

1937------  38,345,158    14,097,666     4,362,900       1,556,085
103,286 

1938------  21,356,398     7,315,506     2,670,000       1,046,287
   44,050 

1939------  34,955,175    11,707,251     3,630,000       1,434,383
   69,862 

1940------ 45,965,971     15,013,749     4,337,990       1,686,129
  117,644 

1941------  60,942,979    20,416,604     6,008,757       2,441,840
  163,428 

1942------  60,591,052    20,615,137     8,489,204       3,181,358
339,711 

1943------  62,210,261    20,147,616    10,124,831       3,706,886
  404,180 

1944------  63,250,519    21,052,179     9,587,503       3,495,231
  390,532 

1945------  56,602,322    18,410,264     7,232,590    2,378,112
225,273 

1946------  48,993,777    15,181,719     6,000,000       1,810,982
  178,669

    ------------- ----------------------------   ----------------
--------------- 

TOTAL----- 493,213,612   163,957,691    62,443,775      22,737,293
2,036,635 

FN9  THE GOVERNMENT NOTES THAT UNITED STATES STEEL IN ITS BID FOR THE
GENEVA PLANT ESTIMATED THAT THE POSTWAR MARKET IN SEVEN WESTERN STATES
WOULD BE 227,000 TONS OF PLATES AND 213,000 TONS OF SHAPES PER YEAR,
AND COMPARES WITH THESE FIGURES THE 1946 PURCHASES OF CONSOLIDATED OF
107,128 TONS OF PLATES AND 43,770 TONS OF SHAPES.  APART FROM THE FACT
THAT THE FIGURES FOR ESTIMATED CONSUMPTION INCLUDED ONLY SEVEN STATES
AS AGAINST ELEVEN IN THE CONSOLIDATED MARKET, CONSOLIDATED'S PURCHASES
IN 1946 WERE PRINCIPALLY DEVOTED TO FINISHING UP WAR CONTRACTS.  THE
FIGURES FOR ESTIMATED CONSUMPTION WERE BASED ON THE ASSUMPTION THAT THE
LEVEL OF ACTIVITY WOULD BE CONSIDERABLY LOWER THAN DURING THE WAR. 

FN10  THE TABLE FROM WHICH THE GOVERNMENT DERIVES THIS FIGURE OF 80%
IS INCONCLUSIVE.  IT REFERS TO "PURCHASES FROM WEST COAST PRODUCERS"
AND DOES NOT INDICATE WHETHER THE PRODUCERS THEMSELVES PRODUCED THE
ROLLED STEEL PRODUCTS OR WERE ACTING AS AGENTS OF EASTERN PRODUCERS. 
THERE IS NO CHALLENGE TO CONSOLIDATED'S STATEMENT THAT DURING THE YEARS
1937-41 AND 1946 DELIVERIES TO IT FROM THE ROLLED STEEL PRODUCTION OF
THE WEST COAST TOTALED 208,093 TONS AS AGAINST 495,848 TONS FROM
EASTERN PRODUCERS. 

FN11  10 LARGEST STRUCTURAL STEEL FABRICATORS IN THE 11 WESTERN
STATES, 1946. 

              COMPANY         LOCATION             BOOKINGS
PERCENT

                                                      (NET TONS)
OF TOTAL 

ALL COMPANIES----------------------------------------------------
336,717       100.0 

UNITED STATES STEEL CORP----------------PITTSBURGH, PA-----------
44,083        12.9 

CONSOLIDATED STEEL CORP-----------------LOS ANGELES, CALIF-------
36,142        10.6 

BETHLEHEM STEEL CO----------------------BETHLEHEM, PA------------
36,047        10.6 

MOSHER STEEL CO-------------------------HOUSTON, TEX-------------
29,814         8.7 

CHICAGO BRIDGE & IRON CO----------------CHICAGO, ILL-------------
21,588         6.3 

ISAACSON IRON WORKS---------------------SEATTLE, WASH------------
10,656         3.1 

KANSAS CITY STRUCTURAL CO---------------KANSAS CITY, KANS--------
10,051         2.9 

MIDWEST STEEL & IRON WORKS CO-----------DENVER, COLO-------------
9,306         2.7 

NORTHWEST STEEL ROLLING MILLS, INC------SEATTLE, WASH------------
9,000         2.6 

STRUCTURAL STEEL & FORGE CO-------------SALT LAKE CITY, UTAH-----
8,300         2.4

                                             ----------------------
-

   TOTAL 10 COMPANIES------------------------------------------
214,987        63.0

   REMAINING 80 COMPANIES--------------------------------------
121,730   37.0 

THE TABLE QUOTED INCLUDES A CORRECTION AS TO CONSOLIDATED'S BOOKINGS
WHICH WAS MADE AFTER THE EXHIBIT WAS INTRODUCED. 

FN12  THE TRIAL COURT FOUND THAT THE FABRICATING SUBSIDIARIES OF
UNITED STATES STEEL WOULD BE ELIMINATED FROM THE WEST COAST MARKET IN
THE FUTURE EXCEPT FOR SPECIALIZED PRODUCTS WHICH THEY ARE EQUIPPED TO
FABRICATE ECONOMICALLY AND WHICH SELL AT HIGHER PRICES PER TON OF
PRODUCT. 

SINCE THE RECORD WAS MADE UP IN THIS CASE, UNITED STATES STEEL HAS
ANNOUNCED THAT THE MILL PRICE FOR GENEVA STEEL PRODUCTS HAS BEEN
REDUCED $3 PER TON, EFFECTIVE MAY 1, 1948.  THAT AMOUNT REPRESENTED THE
PREVIOUSLY EXISTING MILL PRICE DIFFERENTIAL OF GENEVA STEEL PRODUCTS
OVER PRODUCTS PRODUCED AT PITTSBURGH, CHICAGO, GARY, AND BIRMINGHAM. 
U.S. STEEL QUARTERLY, VOL. 2, NO. 2, MAY 1948, P. 6. 

FN13  DURING THE TEN-YEAR PERIOD ENDING IN 1946 UNITED STATES STEEL
BID ON 2,409 JOBS IN THE CONSOLIDATED AREA AND WAS SUCCESSFUL IN 839. 
CONSOLIDATED BID ON 6,377 JOBS AND WAS SUCCESSFUL IN 2,390.  THERE WERE
ONLY 166 JOBS, HOWEVER, ON WHICH BOTH COMPANIES BID.  FORTY OF THESE
JOBS ON WHICH BOTH COMPANIES BID WERE AWARDED TO UNITED STATES STEEL,
35 WERE AWARDED TO CONSOLIDATED, AND 91 WERE AWARDED TO COMPETITORS. 
REDUCING THESE FIGURES TO A TONNAGE BASIS, UNITED STATES STEEL WAS
AWARDED BIDS COVERING 499,605 TONS OUT OF A TOTAL TONNAGE ON WHICH BIDS
WERE SUBMITTED OF 1,273,152 TONS.  CONSOLIDATED BID ON JOBS INVOLVING
578,847 TONS AND WAS AWARDED 157,997 TONS.  THE TONNAGE INVOLVED IN THE
166 COMMON BIDS WAS 122,353 TONS, OF WHICH UNITED STATES STEEL'S SHARE
WAS 38,920, CONSOLIDATED'S 24,162, AND OTHER COMPETITORS 59,271. 

THE ABOVE FIGURES INDICATE THAT CONSOLIDATED CUSTOMARILY BID ON
LIGHTER TYPES OF WORK; THE AVERAGE TONNAGE FOR CONSOLIDATED'S BIDS WAS
90 TONS, WHEREAS THE AVERAGE TONNAGE FOR UNITED STATES STEEL WAS 528
TONS.  THE 166 JOBS ON WHICH BOTH COMPANIES SUBMITTED BIDS WERE
CONSIDERABLY LARGER IN VOLUME, AVERAGING 737 TONS. 

FN14  THE FOLLOWING EXTRACT FROM THE RECORD SUMMARIZES THE EVIDENCE
ON THIS QUESTION: 

"A.  THE TYPE OF PIPE MADE BY CONSOLIDATED IS ELECTRIC WELD PIPE
KNOWN AS FUSION WELD OR ARC WELD PIPE IN SIZES FROM 4-INCH UP TO SAY 30
INCH.  WE DON'T MAKE ANY ELECTRIC WELD PIPE.  THE PIPE THAT
CONSOLIDATED MAKE OTHER THAN THE PIPE LARGER THAN 26-INCH IS MADE
PRIMARILY FOR AND SOLD TO THE WATER WORKS INDUSTRY, AND OUR PIPE IS
SOLD PRIMARILY TO THE OIL AND GAS INDUSTRY.  WE DON'T MAKE THE SAME
TYPE OF PIPE, AND THE SIZES WHICH WE MANUFACTURE AND THE GAGES AND THE
LENGTHS ARE IN GENERAL QUITE DIFFERENT FROM THOSE MADE BY CONSOLIDATED
STEEL.  THEY ONLY OVERLAP AT A VERY SMALL PART OF THE FIELD INSOFAR AS
THE PHYSICAL DIMENSIONS OF THE PIPE ARE CONCERNED. 

"Q.  YOU HAVE SPOKEN OF PIPE MADE BY CONSOLIDATED FOR WATER
CONVEYANCE.  ARE THOSE WHAT HAVE BEEN REFERRED TO AS PENSTOCKS? 

"A.  NO, SIR.  WELL, YES, TO A CERTAIN EXTENT PENSTOCKS, AND MANY
OTHER TYPES OF LOW-PRESSURE WATER PIPE.  IT IS TRUE THAT PENSTOCKS ARE
INCLUDED IN THAT AS FAR AS CONSOLIDATED IS CONCERNED.  NATIONAL TUBE
COMPANY DO NOT MAKE ANY PENSTOCK PIPE.  THEY HAVE NOT MADE ANY FOR TEN
YEARS. 

"Q.  AND NONE OF WHAT YOU TERM LIGHT-PRESSURE PIPE? 

"A.  WE DON'T COMPETE WITH THAT.  WE MAKE HIGH-PRESSURE PIPE ONLY." 

FN15  ROACH TESTIFIED THAT THE FIRST ORDER WHICH CONSOLIDATED HAD
FILLED FOR SUCH PIPE WAS FOR THE SOUTHERN COUNTIES AND SOUTHERN
CALIFORNIA GAS LINE, BUT HE DID NOT INDICATE THE SIZE OR DATE OF THE
ORDER.  THE PRESIDENT OF NATIONAL TUBE TESTIFIED THAT CONSOLIDATED
CONTRACTED IN 1946 TO FURNISH 100 MILES OF 26-INCH PIPE FOR THE EL PASO
NATURAL GAS CO., NATIONAL TUBE CONTRACTED TO SUPPLY 230 MILES, AND A
THIRD COMPETITOR 400 MILES.  THE SAME WITNESS ALSO TESTIFIED THAT
NATIONAL TUBE CONTRACTED IN 1946 TO SUPPLY A SMALL AMOUNT OF 24-INCH
PIPE TO THE PACIFIC GAS AND ELECTRIC CO., AND THAT CONSOLIDATED IN 1947
ALSO AGREED TO FURNISH A QUANTITY OF PIPE FOR THE SAME PIPELINE.  AS OF
NOVEMBER 30, 1946, CONSOLIDATED HAD UNFILLED ORDERS FOR "HEAVY PIPE" OF
$9,830,079, A FIGURE WHICH DOES NOT INCLUDE THE PACIFIC GAS AND
ELECTRIC OR TRANS-ARABIAN ORDER. 

FN16  E.G., REPUBLIC STEEL CORP., A.O. SMITH CORP., YOUNGSTOWN SHEET
AND TUBE CO. THERE ARE OTHER PRODUCERS IN THE WEST. 

FN17  332 U.S. AT 226: 

"LIKEWISE IRRELEVANT IS THE IMPORTANCE OF THE INTERSTATE COMMERCE
AFFECTED IN RELATION TO THE ENTIRE AMOUNT OF THAT TYPE OF COMMERCE IN
THE UNITED STATES.  THE SHERMAN ACT IS CONCERNED WITH MORE THAN THE
LARGE, NATION-WIDE OBSTACLES IN THE CHANNELS OF INTERSTATE TRADE.  IT
IS DESIGNED TO SWEEP AWAY ALL APPRECIABLE OBSTRUCTIONS SO THAT THE
STATUTORY POLICY OF FREE TRADE MIGHT BE EFFECTIVELY ACHIEVED.  AS THIS
COURT STATED IN INDIANA FARMER'S GUIDE CO. V. PRAIRIE FARMER CO., 293
U.S. 268, 279, 'THE PROVISIONS OF SECS. 1 AND 2 HAVE BOTH A
GEOGRAPHICAL AND DISTRIBUTIVE SIGNIFICANCE AND APPLY TO ANY PART OF THE
UNITED STATES AS DISTINGUISHED FROM THE WHOLE AND TO ANY PART OF THE
CLASSES OF THINGS FORMING A PART OF INTERSTATE COMMERCE.'  IT FOLLOWS
THAT THE COMPLAINT IN THIS CASE IS NOT DEFECTIVE FOR FAILURE TO ALLEGE
THAT CCM HAS A MONOPOLY WITH REFERENCE TO THE TOTAL NUMBER OF TAXICABS
MANUFACTURED AND SOLD IN THE UNITED STATES.  ITS RELATIVE POSITION IN
THE FIELD OF CAB PRODUCTION HAS NO NECESSARY RELATION TO THE ABILITY OF
THE APPELLEES TO CONSPIRE TO MONOPOLIZE OR RESTRAIN, IN VIOLATION OF
THE ACT, AN APPRECIABLE SEGMENT OF INTERSTATE CAB SALES.  AN ALLEGATION
THAT SUCH A SEGMENT HAS BEEN OR MAY BE MONOPOLIZED OR RESTRAINED IS
SUFFICIENT." 

FN18  THE GOVERNMENT RELIES PARTICULARLY ON THE FOLLOWING EXCERPT,
332 U.S. AT 226-27: 

"NOR CAN IT BE DOUBTED THAT COMBINATIONS AND CONSPIRACIES OF THE TYPE
ALLEGED IN THIS CASE FALL WITHIN THE BAN OF THE SHERMAN ACT.  BY
EXCLUDING ALL CAB MANUFACTURERS OTHER THAN CCM FROM THAT PART OF THE
MARKET REPRESENTED BY THE CAB OPERATING COMPANIES UNDER THEIR CONTROL,
THE APPELLEES EFFECTIVELY LIMIT THE OUTLETS THROUGH WHICH CABS MAY BE
SOLD IN INTERSTATE COMMERCE.  LIMITATIONS OF THAT NATURE HAVE BEEN
CONDEMNED TIME AND AGAIN AS VIOLATIVE OF THE ACT.  ...  IN ADDITION, BY
PREVENTING THE CAB OPERATING COMPANIES UNDER THEIR CONTROL FROM
PURCHASING CABS FROM MANUFACTURERS OTHER THAN CCM, THE APPELLEES DENY
THOSE COMPANIES THE OPPORTUNITY TO PURCHASE CABS IN A FREE, COMPETITIVE
MARKET.  THE SHERMAN ACT HAS NEVER BEEN THOUGHT TO SANCTION SUCH A
CONSPIRACY TO RESTRAIN THE FREE PURCHASE OF GOODS IN INTERSTATE
COMMERCE." 

FN19 THE GENERAL LANGUAGE OF SECS. 1 AND 2 OF THE SHERMAN ACT HAS
BEEN CONSTRUED AS PROHIBITING ONLY UNREASONABLE RESTRAINTS, NOT ALL
POSSIBLE RESTRAINTS OF TRADE.  STANDARD OIL CO. V. UNITED STATES, 221
U.S. 1.  IN THIS IT DIFFERS SOMEWHAT FROM THE MORE SPECIFIC LANGUAGE OF
THE CLAYTON ACT, 38 STAT. 730, OR THE FEDERAL TRADE COMMISSION ACT, 38
STAT. 717.  SEE FEDERAL TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37,
46, AND STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346,
356. 

FN20  UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150. 

FN21  ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1; EASTERN STATES
RETAIL LUMBER DEALERS' ASSOCIATION V. UNITED STATES, 234 U.S. 600;
MONTAGUE & CO. V. LOWRY, 193 U.S. 38.  SEE FASHION ORIGINATORS' GUILD
V. FEDERAL TRADE COMM'N, 312 U.S. 457. 

FN22  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392. 

FN23  COMPARE OUR STATEMENT IN UNITED STATES V. PARAMOUNT PICTURES,
334 U.S. 131, 173-174: 

"EXPLORATION OF THESE PHASES OF THE CASES WOULD NOT BE NECESSARY IF,
AS THE DEPARTMENT OF JUSTICE ARGUES, VERTICAL INTEGRATION OF PRODUCING,
DISTRIBUTING AND EXHIBITING MOTION PICTURES IS ILLEGAL PER SE.  BUT THE
MAJORITY OF THE COURT DOES NOT TAKE THAT VIEW.  IN THE OPINION OF THE
MAJORITY THE LEGALITY OF VERTICAL INTEGRATION UNDER THE SHERMAN ACT
TURNS ON (1) THE PURPOSE OR INTENT WITH WHICH IT WAS CONCEIVED, OR (2)
THE POWER IT CREATES AND THE ATTENDANT PURPOSE OR INTENT.  FIRST, IT
RUNS AFOUL OF THE SHERMAN ACT IF IT WAS A CALCULATED SCHEME TO GAIN
CONTROL OVER AN APPRECIABLE SEGMENT OF THE MARKET AND TO RESTRAIN OR
SUPPRESS COMPETITION, RATHER THAN AN EXPANSION TO MEET LEGITIMATE
BUSINESS NEEDS." 

THE LEGALITY OF CONTRACTUAL ARRANGEMENTS FOR EXCLUSIVE DEALING WAS
SUSTAINED IN UNITED STATES V. BAUSCH & LOMB CO., 321 U.S. 707, 728-29. 
COMPARE FEDERAL TRADE COMM'N V. CURTIS PUBLISHING CO., 260 U.S. 568. 

FN24  ID., PP. 106-107: 

"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 SEC. 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 SEC. 1.  FOR THOSE
THINGS WHICH ARE CONDEMNED BY SEC. 2 ARE IN LARGE MEASURE MERELY THE
END PRODUCTS OF CONDUCT WHICH VIOLATES SEC. 1.  STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, 61.  BUT THAT IS NOT ALWAYS TRUE.  SECTION 1
COVERS CONTRACTS, COMBINATIONS, OR CONSPIRACIES IN RESTRAINT OF TRADE. 
MONOPOLIZE BUT ALSO MAKES IT A CRIME FOR ANY PERSON TO MONOPOLIZE OR TO
ATTEMPT TO MONOPOLIZE ANY PART OF INTERSTATE OR FOREIGN TRADE OR
COMMERCE.  SO IT IS THAT MONOPOLY POWER, WHETHER LAWFULLY OR UNLAWFULLY
ACQUIRED, MAY ITSELF CONSTITUTE AN EVIL AND STAND CONDEMNED UNDER SEC.
2 EVEN THOUGH IT REMAINS UNEXERCISED.  FOR SEC. 2 OF THE ACT IS AIMED,
INTER ALIA, AT THE ACQUISITION OR RETENTION OF EFFECTIVE MARKET
CONTROL.  SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416,
428, 429.  HENCE THE EXISTENCE OF POWER 'TO EXCLUDE COMPETITION WHEN IT
IS DESIRED TO DO SO' IS ITSELF A VIOLATION OF SEC. 2, PROVIDED IT IS
COUPLED WITH THE PURPOSE OR INTENT TO EXERCISE THAT POWER.  AMERICAN
TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 809, 811, 814."    FN25
COMPARE UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 424;
HANDLER, SUPRA, NOTE 7, TABLES, P. 245.  SEE ALSO ROSTOW, THE NEW
SHERMAN ACT:  A POSITIVE INSTRUMENT OF PROGRESS, 14 U. OF CHICAGO L.
REV. 567, 575-86. 

FN26  UNITED STATES V. SOUTHERN PACIFIC CO., 259 U.S. 214; UNITED
STATES V. READING CO., 253 U.S. 26. 

FN27  UNITED STATES V. SOUTHERN PACIFIC CO., 259 U.S. 214; UNITED
STATES V. UNION PACIFIC R. CO., 226 U.S. 61; UNITED STATES V. READING
CO., 253 U.S. 26; NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S.
197. 

FN28  INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, 280 U.S. 291;
UNITED STATES V. UNITED STATES STEEL CORP., 251 U.S. 417; UNITED STATES
V. UNITED SHOE MACHINERY CO., 247 U.S. 32; UNITED STATES V. STANDARD
OIL CO. OF NEW JERSEY, 47 F.2D 288; UNITED STATES V. REPUBLIC STEEL
CORP., 11 F.SUPP.  117. 

FN29  SEE HANDLER, SUPRA, NOTE 7, AT 269-71. 

FN30  UNITED STATES V. GRIFFITH, SUPRA, NOTE 24. 

FN31  UNITED STATES V. UNITED STATES STEEL CORP., 251 U.S. 417. 

FN32  ID., AT 446. 

FN33  THE FIGURES FOR 1901 AND 1911 ARE TAKEN FROM UNITED STATES V.
UNITED STATES STEEL CORP., 223 FED. 55, 67. 

FN34  THE RECORD INCLUDES AN UNCHALLENGED TABLE SHOWING THE
PROPORTION OF TOTAL NATIONAL PRODUCTION OF STEEL INGOTS AND STEEL FOR
CASTING ATTRIBUTABLE TO UNITED STATES STEEL FROM 1901 THROUGH 1946.  IT
IS TAKEN FROM THE STATISTICAL REPORTS OF THE AMERICAN IRON AND STEEL
INSTITUTE AND UNITED STATES STEEL.  IT MAY BE SUMMARIZED BY SAYING IT
SHOWS AN IRREGULAR REDUCTION FROM OVER 60% TO LESS THAN 33-1 3%. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE MURPHY,
AND MR. JUSTICE RUTLEDGE CONCUR, DISSENTING. 

THIS IS THE MOST IMPORTANT ANTITRUST CASE WHICH HAS BEEN BEFORE THE
COURT IN YEARS.  IT IS IMPORTANT BECAUSE IT REVEALS THE WAY OF GROWTH
OF MONOPOLY POWER - THE PRECISE PHENOMENON AT WHICH THE SHERMAN ACT WAS
AIMED.  HERE WE HAVE THE PATTERN OF THE EVOLUTION OF THE GREAT TRUSTS. 
LITTLE, INDEPENDENT UNITS ARE GOBBLED UP BY BIGGER ONES.  AT TIMES THE
INDEPENDENT IS DRIVEN TO THE WALL AND SURRENDERS.  AT OTHER TIMES ANY
NUMBER OF "SOUND BUSINESS REASONS" APPEAR WHY THE SALE TO OR MERGER
WITH THE TRUST SHOULD BE MADE.  FN1  IF THE ACQUISITION WERE THE RESULT
OF PREDATORY PRACTICES OR RESTRAINTS OF TRADE, THE TRUST COULD BE
REQUIRED TO DISGORGE.  SCHINE CHAIN THEATRES, INC. V. UNITED STATES,
334 U.S. 110.  BUT THE IMPACT ON FUTURE COMPETITION AND ON THE ECONOMY
IS THE SAME THOUGH THE TRUST WAS BUILT IN MORE GENTLEMANLY WAYS. 

WE HAVE HERE THE PROBLEM OF BIGNESS.  ITS LESSON SHOULD BY NOW HAVE
BEEN BURNED INTO OUR MEMORY BY BRANDEIS.  THE CURSE OF BIGNESS SHOWS
HOW SIZE CAN BECOME A MENACE - BOTH INDUSTRIAL AND SOCIAL.  IT CAN BE
AN INDUSTRIAL MENACE BECAUSE IT CREATES GROSS INEQUALITIES AGAINST
EXISTING OR PUTATIVE COMPETITORS.  IT CAN BE A SOCIAL MENACE - BECAUSE
OF ITS CONTROL OF PRICES.  FN2  CONTROL OF PRICES IN THE STEEL INDUSTRY
IS POWERFUL LEVERAGE ON OUR ECONOMY.  FOR THE PRICE OF STEEL DETERMINES
THE PRICE OF HUNDREDS OF OTHER ARTICLES.  OUR PRICE LEVEL DETERMINES IN
LARGE MEASURE WHETHER WE HAVE PROSPERITY OR DEPRESSION - AN ECONOMY OF
ABUNDANCE OR SCARCITY.  SIZE IN STEEL SHOULD THEREFORE BE JEALOUSLY
WATCHED.  FN3  IN FINAL ANALYSIS, SIZE IN STEEL IS THE MEASURE OF THE
POWER OF A HANDFUL OF MEN OVER OUR ECONOMY.  THAT POWER CAN BE UTILIZED
WITH LIGHTNING SPEED.  IT CAN BE BENIGN OR IT CAN BE DANGEROUS.  THE
PHILOSOPHY OF THE SHERMAN ACT IS THAT IT SHOULD NOT EXIST.  FOR ALL
POWER TENDS TO DEVELOP INTO A GOVERNMENT IN ITSELF.  POWER THAT
CONTROLS THE ECONOMY SHOULD BE IN THE HANDS OF ELECTED REPRESENTATIVES
OF THE PEOPLE, NOT IN THE HANDS OF AN INDUSTRIAL OLIGARCHY.  INDUSTRIAL
POWER SHOULD BE DECENTRALIZED.  IT SHOULD BE SCATTERED INTO MANY HANDS
SO THAT THE FORTUNES OF THE PEOPLE WILL NOT BE DEPENDENT ON THE WHIM OR
CAPRICE, THE POLITICAL PREJUDICES, THE EMOTIONAL STABILITY OF A FEW
SELF-APPOINTED MEN.  THE FACT THAT THEY ARE NOT VICIOUS MEN BUT
RESPECTABLE AND SOCIAL-MINDED IS IRRELEVANT.  THAT IS THE PHILOSOPHY
AND THE COMMAND OF THE SHERMAN ACT.  IT IS FOUNDED ON A THEORY OF
HOSTILITY TO THE CONCENTRATION IN PRIVATE HANDS OF POWER SO GREAT THAT
ONLY A GOVERNMENT OF THE PEOPLE SHOULD HAVE IT. 

THE COURT FORGOT THIS LESSON IN UNITED STATES V. UNITED STATES STEEL
CORP., 251 U.S. 417, AND IN UNITED STATES V. INTERNATIONAL HARVESTER
CO., 274 U.S. 693.  THE COURT TODAY FORGETS IT WHEN IT ALLOWS UNITED
STATES STEEL TO WRAP ITS TENTACLES TIGHTER AROUND THE STEEL INDUSTRY OF
THE WEST. 

THIS ACQUISITION CAN BE DRESSED UP (PERHAPS LEGITIMATELY) IN TERMS OF
AN EXPANSION TO MEET THE DEMANDS OF A BUSINESS WHICH IS GROWING AS A
RESULT OF SUPERIOR AND ENTERPRISING MANAGEMENT.  FN4 BUT THE TEST UNDER
THE SHERMAN ACT STRIKES DEEPER.  HOWEVER THE ACQUISITION MAY BE
RATIONALIZED, THE EFFECT IS PLAIN.  IT IS A PURCHASE FOR CONTROL, A
PURCHASE FOR CONTROL OF A MARKET FOR WHICH UNITED STATES STEEL HAS IN
THE PAST HAD TO COMPETE BUT WHICH IT NO LONGER WANTS LEFT TO THE
UNCERTAINTIES THAT COMPETITION IN THE WEST MAY ENGENDER.  THIS IN
EFFECT IT CONCEDES.  IT STATES THAT ITS PURPOSE IN ACQUIRING
CONSOLIDATED IS TO INSURE ITSELF OF A MARKET FOR PART OF GENEVA'S
PRODUCTION OF ROLLED STEEL PRODUCTS WHEN DEMAND FALLS OFF. 

BUT COMPETITION IS NEVER MORE IRREVOCABLY ELIMINATED THAN BY BUYING
THE CUSTOMER FOR WHOSE BUSINESS THE INDUSTRY HAS BEEN COMPETING.  THE
BUSINESS OF CONSOLIDATED AMOUNTS TO AROUND $22,000,000 ANNUALLY.  THE
COMPETITIVE PURCHASES BY CONSOLIDATED ARE OVER $5,000,000 A YEAR.  I DO
NOT SEE HOW IT IS POSSIBLE TO SAY THAT $5,000,000 OF COMMERCE IS
IMMATERIAL.  IT PLAINLY IS NOT DE MINIMIS.  AND IT IS THE CHARACTER OF
THE RESTRAINT WHICH SEC. 1 OF THE ACT BRANDS AS ILLEGAL, NOT THE AMOUNT
OF COMMERCE AFFECTED.  MONTAGUE & CO. V. LOWRY, 193 U.S. 38; UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 225, N. 59; UNITED
STATES V. YELLOW CAB CO., 332 U.S. 218, 225.  AT LEAST IT CAN BE SAID
HERE, AS IT WAS IN INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392, 396, THAT THE VOLUME OF BUSINESS RESTRAINED BY THIS CONTRACT IS
NOT INSIGNIFICANT OR INSUBSTANTIAL.  UNITED STATES STEEL DOES NOT
CONSIDER IT INSIGNIFICANT, FOR THE AIM OF THIS WELL-CONCEIVED PROJECT
IS TO MONOPOLIZE IT.  IF IT IS NOT INSUBSTANTIAL AS A MARKET FOR UNITED
STATES STEEL, IT CERTAINLY IS NOT FROM THE POINT OF VIEW OF THE
STRUGGLING WESTERN UNITS OF THE STEEL INDUSTRY. 

IT IS UNREALISTIC TO MEASURE CONSOLIDATED'S PART OF THE MARKET BY
DETERMINING ITS PROPORTION OF THE NATIONAL MARKET.  THERE IS NO
SAFEGUARDING OF COMPETITION IN THE THEORY THAT THE BIGGER THE NATIONAL
MARKET THE LESS PROTECTION WILL BE GIVEN THOSE SELLING TO THE SMALLER
COMPONENTS THEREOF.  THAT THEORY WOULD ALLOW A PRODUCER TO ABSORB
OUTLETS UPON WHICH SMALL ENTERPRISES WITH RESTRICTED MARKETING
FACILITIES DEPEND.  THOSE OUTLETS, THOUGH STATISTICALLY UNIMPORTANT
FROM THE POINT OF VIEW OF THE NATIONAL MARKET, COULD BE A MATTER OF
LIFE AND DEATH TO SMALL, LOCAL ENTERPRISES. 

THE LARGEST MARKET WHICH MUST BE TAKEN FOR COMPARISON IS THE MARKET
ACTUALLY REACHED BY THE COMPANY WHICH IS BEING ABSORBED.  IN THIS CASE
CONSOLIDATED'S PURCHASES OF ROLLED STEEL PRODUCTS ARE A LITTLE OVER 3
PER CENT OF THAT MARKET.  BY NO STANDARD - UNITED STATES STEEL'S OR ITS
WESTERN COMPETITORS - CAN THAT PERCENTAGE BE DEEMED IMMATERIAL.  YET
CONSIDERATION OF THE CASE FROM THAT VIEWPOINT PUTS THE PUBLIC INTEREST
PHASE OF THE ACQUISITION IN THE LEAST FAVORABLE LIGHT.  A SURER TEST OF
THE IMPACT OF THE ACQUISITION ON COMPETITION IS TO BE DETERMINED NOT
ONLY BY CONSIDERATION OF THE ACTUAL MARKETS REACHED BY CONSOLIDATED BUT
ALSO BY THE ACTUAL PURCHASES WHICH IT MAKES.  ITS PURCHASES WERE
PREDOMINANTLY OF PLATES AND SHAPES - 76 PER CENT FROM 1937-1941.  THIS
WAS IN 1937 13 PER CENT OF THE TOTAL IN THE CONSOLIDATED MARKET.  THAT
COMPARISON IS REJECTED BY THE COURT OR AT LEAST DISCOUNTED ON THE
THEORY THAT COMPETITORS PRESENTLY SELLING TO CONSOLIDATED CAN PROBABLY
CONVERT FROM PLATES AND SHAPES TO OTHER FORMS OF ROLLED STEEL
PRODUCTS.  BUT A SURER TEST OF THE EFFECT ON COMPETITION IS THE ACTUAL
BUSINESS OF WHICH COMPETITORS WILL BE DEPRIVED.  WE DO NOT KNOW WHETHER
THEY CAN BE SUFFICIENTLY RESOURCEFUL TO RECOVER FROM THIS STRENGTHENING
OF THE HOLD WHICH THIS GIANT OF THE INDUSTRY NOW HAS ON THEIR MARKETS. 
IT WOULD BE MORE IN KEEPING WITH THE SPIRIT OF THE SHERMAN ACT TO GIVE
THE BENEFITS OF ANY DOUBTS TO THE STRUGGLING COMPETITORS. 

IT IS, OF COURSE, IMMATERIAL THAT A PURPOSE OR INTENT TO ACHIEVE THE
RESULT MAY NOT HAVE BEEN PRESENT.  THE HOLDING OF THE CASES FROM UNITED
STATES V. PATTEN, 226 U.S. 525, 543, TO UNITED STATES V. GRIFFITH, 334
U.S. 100, IS THAT THE REQUISITE PURPOSE OR INTENT IS PRESENT IF
MONOPOLY OR RESTRAINT OF TRADE RESULTS AS A DIRECT AND NECESSARY
CONSEQUENCE OF WHAT WAS DONE.  WE NEED NOT HOLD THAT VERTICAL
INTEGRATION IS PER SE UNLAWFUL IN ORDER TO STRIKE DOWN WHAT IS
ACCOMPLISHED HERE.  THE CONSEQUENCE OF THE DELIBERATE, CALCULATED
PURCHASE FOR PURPOSE OF CONTROL OVER THIS SUBSTANTIAL SHARE OF THE
MARKET CAN NO MORE BE AVOIDED HERE THAN IT WAS IN UNITED STATES V.
READING CO., 253 U.S. 26, 57, AND IN UNITED STATES V. YELLOW CAB CO.,
SUPRA.  I DO NOT STOP TO CONSIDER THE EFFECT OF THE ACQUISITION ON
COMPETITION IN THE SALE OF FABRICATED STEEL PRODUCTS.  THE MONOPOLY OF
THIS SUBSTANTIAL MARKET FOR ROLLED STEEL PRODUCTS IS IN ITSELF AN
UNREASONABLE RESTRAINT OF TRADE UNDER SEC. 1 OF THE ACT. 

THE RESULT MIGHT WELL BE DIFFERENT IF CONSOLIDATED WERE MERGING WITH
OR BEING ACQUIRED BY AN INDEPENDENT WEST COAST PRODUCER FOR THE PURPOSE
OF DEVELOPING AN INTEGRATED OPERATION.  THE PURCHASE MIGHT THEN BE PART
OF AN INTENSELY PRACTICAL PLAN TO PUT TOGETHER AN INDEPENDENT WESTERN
UNIT OF THE INDUSTRY WITH SUFFICIENT RESOURCES AND STRENGTH TO COMPETE
WITH THE GIANTS OF THE INDUSTRY.  APPROVAL OF THIS ACQUISITION WORKS IN
PRECISELY THE OPPOSITE DIRECTION.  IT MAKES DIM THE PROSPECTS THAT THE
WESTERN STEEL INDUSTRY WILL BE FREE FROM THE CONTROL OF THE EASTERN
GIANTS.  UNITED STATES STEEL, NOW THAT IT OWNS THE GENEVA PLANT, HAS
OVER 51 PER CENT OF THE ROLLED STEEL OR INGOT CAPACITY OF THE PACIFIC
COAST AREA.  THIS ACQUISITION GIVES IT UNQUESTIONED DOMINATION THERE
AND PROTECTS IT AGAINST GROWTH OF THE INDEPENDENTS IN THAT DEVELOPING
REGION.  THAT ALONE IS SUFFICIENT TO CONDEMN THE PURCHASE.  ITS SERIOUS
IMPACT ON COMPETITION AND THE ECONOMY IS EMPHASIZED WHEN IT IS RECALLED
THAT UNITED STATES STEEL HAS ONE-THIRD OF THE ROLLED STEEL PRODUCTION
OF THE ENTIRE COUNTRY.  FN5  THE LEAST I CAN SAY IS THAT A COMPANY THAT
HAS THAT TREMENDOUS LEVERAGE ON OUR ECONOMY IS BIG ENOUGH.  FN6 

FN1  THE MOST FREQUENT REASONS GIVEN FOR MERGERS ARE THAT THEY
PREVENT WASTE AND PROMOTE EFFICIENCY, REDUCE OVERHEAD, DILUTE SALES AND
ADVERTISING COSTS, SPREAD RISKS, ETC.  COMPARE, NEW MERGERS, NEW
MOTIVES, BUSINESS WEEK, NOV. 10, 1945, P. 68; GROWTH OF BUSINESS UNITS:
EFFECT OF WAR AND SHORTAGES, UNITED STATES NEWS, MAY 10, 1946, P. 48. 
BUT THAT THESE ADVANTAGES ARE LARGELY ILLUSORY HAS LONG BEEN
RECOGNIZED.  SEE, E.G., RELATIVE EFFICIENCY OF LARGE, MEDIUM-SIZED, AND
SMALL BUSINESS (TNEC MONOGRAPH 13, 1941) PP. 111, 128, 132, 398.  THE
THEORY WAS NEVER MORE FORCEFULLY EXPLODED THAN BY BRANDEIS IN THE CURSE
OF BIGNESS: 

"THE ONLY ARGUMENT THAT HAS BEEN SERIOUSLY ADVANCED IN FAVOR OF
PRIVATE MONOPOLY IS THAT COMPETITION INVOLVES WASTE, WHILE THE MONOPOLY
PREVENTS WASTE AND LEADS TO EFFICIENCY.  THIS ARGUMENT IS ESSENTIALLY
UNSOUND.  THE WASTES OF COMPETITION ARE NEGLIGIBLE.  THE ECONOMIES OF
MONOPOLY ARE SUPERFICIAL AND DELUSIVE.  THE EFFICIENCY OF MONOPOLY IS
AT THE BEST TEMPORARY. 

"UNDOUBTEDLY COMPETITION INVOLVES WASTE.  WHAT HUMAN ACTIVITY DOES
NOT?  THE WASTES OF DEMOCRACY ARE AMONG THE GREATEST OBVIOUS WASTES,
BUT WE HAVE COMPENSATIONS IN DEMOCRACY WHICH FAR OUTWEIGH THAT WASTE
AND MAKE IT MORE EFFICIENT THAN ABSOLUTISM.  SO IT IS WITH
COMPETITION.  THE WASTE IS RELATIVELY INSIGNIFICANT.  THERE ARE WASTES
OF COMPETITION WHICH DO NOT DEVELOP, BUT KILL.  THESE THE LAW CAN AND
SHOULD ELIMINATE, BY REGULATING COMPETITION. 

"IT IS TRUE THAT THE UNIT IN BUSINESS MAY BE TOO SMALL TO BE
EFFICIENT.  IT IS ALSO TRUE THAT THE UNIT MAY BE TOO LARGE TO BE
EFFICIENT, AND THIS IS NO UNCOMMON INCIDENT OF MONOPOLY."  P. 105. 

"  ...  NO MONOPOLY IN PRIVATE INDUSTRY IN AMERICA HAS YET BEEN
ATTAINED BY EFFICIENCY ALONE.  NO BUSINESS HAS BEEN SO SUPERIOR TO ITS
COMPETITORS IN THE PROCESSES OF MANUFACTURE OR OF DISTRIBUTION AS TO
ENABLE IT TO CONTROL THE MARKET SOLELY BY REASON OF ITS SUPERIORITY." 
P. 114-15. 

"THE STEEL TRUST, WHILE APPARENTLY FREE FROM THE COARSER FORMS OF
SUPPRESSING COMPETITION, ACQUIRED CONTROL OF THE MARKET NOT THROUGH
GREATER EFFICIENCY, BUT BY BUYING UP EXISTING PLANTS AND PARTICULARLY
ORE SUPPLIES AT FABULOUS PRICES, AND BY CONTROLLING STRATEGIC
TRANSPORTATION SYSTEMS."  P. 115. 

"BUT THE EFFICIENCY OF MONOPOLIES, EVEN IF ESTABLISHED, WOULD NOT
JUSTIFY THEIR EXISTENCE UNLESS THE COMMUNITY SHOULD REAP BENEFIT FROM
THE EFFICIENCY; EXPERIENCE TEACHES US THAT WHENEVER TRUSTS HAVE
DEVELOPED EFFICIENCY, THEIR FRUITS HAVE BEEN ABSORBED ALMOST WHOLLY BY
THE TRUSTS THEMSELVES.  FROM SUCH EFFICIENCY AS THEY HAVE DEVELOPED THE
COMMUNITY HAS GAINED SUBSTANTIALLY NOTHING.  FOR INSTANCE:   ...  THE
STEEL TRUST, A CORPORATION OF REPUTED EFFICIENCY.  THE HIGH PRICES
MAINTAINED BY IT IN THE INDUSTRY ARE MATTERS OF COMMON KNOWLEDGE.  IN
LESS THAN TEN YEARS IT ACCUMULATED FOR ITS SHAREHOLDERS OR PAID OUT AS
DIVIDENDS ON STOCK REPRESENTING MERELY WATER, OVER $650,000,000."  PP.
120-121.    FN2  SEE RELATIVE EFFICIENCY OF LARGE, MEDIUM-SIZED, AND
SMALL BUSINESS (TNEC MONOGRAPH 13, 1941) P. 132.    FN3  IN 1911 WHEN
THE ORIGINAL ANTITRUST SUIT AGAINST UNITED STATES STEEL WAS INSTITUTED,
THE COMPANY HAD ALREADY ABSORBED 180 FORMERLY INDEPENDENT CONCERNS. 
SEE UNITED STATES V. UNITED STATES STEEL CORP., 223 F. 55, 162.  SINCE
THEN IT HAS ABSORBED AT LEAST 8 ADDITIONAL INDEPENDENT COMPANIES,
INCLUDING COLUMBIA WHICH PRIOR TO 1930 WAS OPERATED BY AN INDEPENDENT
PRODUCER AND MAINTAINED THE ONLY INTEGRATED STEEL OPERATION WEST OF THE
ROCKIES. 

FN4 SEE NOTE 1, SUPRA. 

FN5  SEE NOTE 8 OF THE COURT'S OPINION. 

FN6  "UNITED STATES STEEL IS THE GIANT OF THE INDUSTRY.  ITS
MANUFACTURING CAPACITY IS 'GREATER THAN THAT OF ALL GERMAN PRODUCERS
COMBINED.  IT IS MORE THAN TWICE THAT OF THE ENTIRE BRITISH STEEL
INDUSTRY AND MORE THAN TWICE THAT OF ALL THE FRENCH MILLS COMBINED.' 
IN ADDITION TO ITS FACILITIES FOR PRODUCING PIG IRON, STEEL INGOTS, AND
ALL FORMS OF FINISHED AND SEMIFINISHED STEEL PRODUCTS, THE CORPORATION
OWNED AND OPERATED THROUGH SOME 150 SUBSIDIARIES, IN 1937, NEARLY 2,000
OIL AND NATURAL GAS WELLS, 89 IRON ORE MINES, 79 COAL MINES, SOME 40
LIMESTONE, DOLOMITE, CEMENT ROCK, AND CLAY QUARRIES, A NUMBER OF GYPSUM
AND FLUORSPAR MINES, 2 ZINC MINES, A MANGANESE ORE MINE IN BRAZIL, OVER
5,000 COKING OVENS, SEVERAL WATER-SUPPLY SYSTEMS WITH RESERVOIRS,
FILTRATION PLANTS, AND PUMPING STATIONS, OVER 100 OCEAN, LAKE, AND
RIVER STEAMERS, 500 BARGES AND TUGS, RAILROADS, FIRE BRICK PLANTS, AND
MILLS PRODUCING 12,000,000 BARRELS OF CEMENT.  BY VIRTUE OF ITS
TREMENDOUS SIZE AND ITS HIGH DEGREE OF INTEGRATION, THE CORPORATION IS
IN A POSITION TO DOMINATE THE FIELD."  WILCOX, COMPETITION AND MONOPOLY
IN AMERICAN INDUSTRY (TNEC MONOGRAPH 21, 1940) P. 120. 
..END :























ESTIN V. ESTIN, 334 U.S. 541 


NO. 139.  ARGUED FEBRUARY 2-3, 1948.  - DECIDED JUNE 7, 1948.  - 296
N.Y. 308, 73 N.E.2D 113, AFFIRMED. 


WHILE BOTH SPOUSES WERE DOMICILED IN NEW YORK, A WIFE OBTAINED A
DECREE OF SEPARATION AND ALIMONY THERE.  LATER THE HUSBAND OBTAINED A
NEVADA DIVORCE IN A PROCEEDING IN WHICH THE WIFE WAS NOTIFIED
CONSTRUCTIVELY AND ENTERED NO APPEARANCE.  HE STOPPED PAYING ALIMONY
AND THE WIFE SUED IN NEW YORK FOR THE AMOUNT IN ARREARS.  THE HUSBAND
APPEARED AND DEFENDED ON THE GROUND OF THE NEVADA DIVORCE.  THE NEW
YORK COURT SUSTAINED THE VALIDITY OF THE DIVORCE, BUT GRANTED THE WIFE
JUDGMENT FOR THE ARREARS OF ALIMONY.  THE HIGHEST COURT OF NEW YORK
AFFIRMED.  HELD:  THE NEW YORK JUDGMENT DID NOT DENY FULL FAITH AND
CREDIT TO THE NEVADA DECREE.  PP. 542-549. 

(A)  NOTWITHSTANDING ANY EARLIER HOLDINGS IN NEW YORK TO THE
CONTRARY, THE HOLDING OF THE HIGHEST COURT OF NEW YORK THAT THE AWARD
OF ALIMONY SURVIVED THE DIVORCE UNDER NEW YORK LAW, IS BINDING ON THIS
COURT - UNLESS IT CONFLICTS WITH THE FULL FAITH AND CREDIT CLAUSE.  P.
544. 

(B)  THE FACT THAT THE MARITAL CAPACITY WAS CHANGED DOES NOT MEAN
THAT EVERY OTHER LEGAL INCIDENCE OF THE MARRIAGE WAS NECESSARILY
AFFECTED.  PP. 544-545. 

(C)  THAT THE REQUIREMENTS OF FULL FAITH AND CREDIT ARE EXACTING, SO
FAR AS JUDGMENTS ARE CONCERNED, DOES NOT MEAN 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.  PP. 545-546. 

(D)  NEVADA COULD NOT ADJUDICATE RIGHTS OF THE WIFE UNDER THE NEW
YORK JUDGMENT WHEN SHE WAS NOT PERSONALLY SERVED AND DID NOT APPEAR IN
THE NEVADA PROCEEDING.  PP. 546-549. 

(E)  SINCE NEVADA HAD NO POWER TO ADJUDICATE THE WIFE'S RIGHTS IN THE
NEW YORK JUDGMENT, NEW YORK NEED NOT GIVE FULL FAITH AND CREDIT TO THAT
PHASE OF NEVADA'S JUDGMENT.  P. 549. 

ESTIN V. ESTIN. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

NOTWITHSTANDING A DIVORCE OBTAINED BY A HUSBAND IN NEVADA, A NEW YORK
COURT GAVE THE WIFE A JUDGMENT FOR ARREARS OF ALIMONY AWARDED UNDER AN
EARLIER DECREE GRANTED WHILE BOTH SPOUSES WERE DOMICILED IN NEW YORK. 
63 N.Y.S.2D 476.  THE APPELLATE DIVISION AND THE COURT OF APPEALS
AFFIRMED.  271 APP. DIV. 829, 66 N.Y.S.2D 421; 296 N.Y. 308, 73 N.E.2D
113.  THIS COURT GRANTED CERTIORARI.  332 U.S. 840.  AFFIRMED, P. 549. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
REED. 

THIS CASE, HERE ON CERTIORARI TO THE COURT OF APPEALS OF NEW YORK,
PRESENTS AN IMPORTANT QUESTION UNDER THE FULL FAITH AND CREDIT CLAUSE
OF THE CONSTITUTION.  FN1  ARTICLE IV, SEC. 1.  IT IS WHETHER A NEW
YORK DECREE AWARDING RESPONDENT $180 PER MONTH FOR HER MAINTENANCE AND
SUPPORT IN A SEPARATION PROCEEDING SURVIVED A NEVADA DIVORCE DECREE
WHICH SUBSEQUENTLY WAS GRANTED PETITIONER. 

THE PARTIES WERE MARRIED IN 1937 AND LIVED TOGETHER IN NEW YORK UNTIL
1942 WHEN THE HUSBAND LEFT THE WIFE.  THERE WAS NO ISSUE OF THE
MARRIAGE.  IN 1943 SHE BROUGHT AN ACTION AGAINST HIM FOR A SEPARATION. 
HE ENTERED A GENERAL APPEARANCE.  THE COURT, FINDING THAT HE HAD
ABANDONED HER, GRANTED HER A DECREE OF SEPARATION AND AWARDED HER $180
PER MONTH AS PERMANENT ALIMONY.  IN JANUARY 1944 HE WENT TO NEVADA
WHERE IN 1945 HE INSTITUTED AN ACTION FOR DIVORCE.  SHE WAS NOTIFIED OF
THE ACTION BY CONSTRUCTIVE SERVICE BUT ENTERED NO APPEARANCE IN IT.  IN
MAY, 1945, THE NEVADA COURT, FINDING THAT PETITIONER HAD BEEN A BONA
FIDE RESIDENT OF NEVADA SINCE JANUARY 30, 1944, GRANTED HIM AN ABSOLUTE
DIVORCE "ON THE GROUND OF THREE YEARS CONTINUAL SEPARATION, WITHOUT
COHABITATION."  THE NEVADA DECREE MADE NO PROVISION FOR ALIMONY, THOUGH
THE NEVADA COURT HAD BEEN ADVISED OF THE NEW YORK DECREE. 

PRIOR TO THAT TIME PETITIONER HAD MADE PAYMENTS OF ALIMONY UNDER THE
NEW YORK DECREE.  AFTER ENTRY OF THE NEVADA DECREE HE CEASED PAYING. 
THEREUPON RESPONDENT SUED IN NEW YORK FOR A SUPPLEMENTARY JUDGMENT FOR
THE AMOUNT OF THE ARREARS.  PETITIONER APPEARED IN THE ACTION AND MOVED
TO ELIMINATE THE ALIMONY PROVISIONS OF THE SEPARATION DECREE BY REASON
OF THE NEVADA DECREE.  THE SUPREME COURT DENIED THE MOTION AND GRANTED
RESPONDENT JUDGMENT FOR THE ARREARS.  63 N.Y.S.2D 476.  THE JUDGMENT
WAS AFFIRMED BY THE APPELLATE DIVISION, 271 APP. DIV. 829, 66 N.Y.S.2D
421, AND THEN BY THE COURT OF APPEALS.  296 N.Y. 308, 73 N.E.2D 113. 

WE HELD IN WILLIAMS V. NORTH CAROLINA, 317 U.S. 287; 325 U.S. 226,
(1) THAT A DIVORCE DECREE GRANTED BY A STATE TO ONE OF ITS
DOMICILIARIES IS ENTITLED TO FULL FAITH AND CREDIT IN A BIGAMY
PROSECUTION BROUGHT IN ANOTHER STATE, EVEN THOUGH THE OTHER SPOUSE WAS
GIVEN NOTICE OF THE DIVORCE PROCEEDING ONLY THROUGH CONSTRUCTIVE
SERVICE; AND (2) THAT WHILE THE FINDING OF DOMICILE BY THE COURT THAT
GRANTED THE DECREE IS ENTITLED TO PRIMA FACIE WEIGHT, IT IS NOT
CONCLUSIVE IN A SISTER STATE BUT MIGHT BE RELITIGATED THERE.  AND SEE
ESENWEIN V. ESENWEIN, 325 U.S. 279.  THE LATTER COURSE WAS FOLLOWED IN
THIS CASE, AS A CONSEQUENCE OF WHICH THE SUPREME COURT OF NEW YORK
FOUND, IN ACCORD WITH THE NEVADA COURT, THAT PETITIONER "IS NOW AND
SINCE JANUARY, 1944, HAS BEEN A BONA FIDE RESIDENT OF THE STATE OF
NEVADA." 

PETITIONER'S ARGUMENT THEREFORE IS THAT THE TAIL MUST GO WITH THE
HIDE - THAT SINCE BY THE NEVADA DECREE, RECOGNIZED IN NEW YORK, HE AND
RESPONDENT ARE NO LONGER HUSBAND AND WIFE, NO LEGAL INCIDENCE OF THE
MARRIAGE REMAINS.  WE ARE GIVEN A DETAILED ANALYSIS OF NEW YORK LAW TO
SHOW THAT THE NEW YORK COURTS HAVE NO POWER EITHER BY STATUTE OR BY
COMMON LAW TO COMPEL A MAN TO SUPPORT HIS EX-WIFE, THAT ALIMONY IS
PAYABLE ONLY SO LONG AS THE RELATION OF HUSBAND AND WIFE EXISTS, AND
THAT IN NEW YORK, AS IN SOME OTHER STATES, SEE ESENWEIN V. ESENWEIN,
SUPRA, P. 280, A SUPPORT ORDER DOES NOT SURVIVE DIVORCE. 

THE DIFFICULTY WITH THAT ARGUMENT IS THAT THE HIGHEST COURT IN NEW
YORK HAS HELD IN THIS CASE THAT A SUPPORT ORDER CAN SURVIVE DIVORCE AND
THAT THIS ONE HAS SURVIVED PETITIONER'S DIVORCE.  THAT CONCLUSION IS
BINDING ON US, EXCEPT AS IT CONFLICTS WITH THE FULL FAITH AND CREDIT
CLAUSE.  IT IS NOT FOR US TO SAY WHETHER THAT RULING SQUARES WITH WHAT
THE NEW YORK COURTS SAID ON EARLIER OCCASIONS.  IT IS ENOUGH THAT NEW
YORK TODAY SAYS THAT SUCH IS HER POLICY.  THE ONLY QUESTION FOR US IS
WHETHER NEW YORK IS POWERLESS TO MAKE SUCH A RULING IN VIEW OF THE
NEVADA DECREE. 

WE CAN PUT TO ONE SIDE THE CASE WHERE THE WIFE WAS PERSONALLY SERVED
OR WHERE SHE APPEARED IN THE DIVORCE PROCEEDINGS.  CF. YARBOROUGH V.
YARBOROUGH, 290 U.S. 202; DAVIS V. DAVIS, 305 U.S. 32; SHERRER V.
SHERRER, ANTE, P. 343; COE V. COE, ANTE, P. 378.  THE ONLY SERVICE ON
HER IN THIS CASE WAS BY PUBLICATION AND SHE MADE NO APPEARANCE IN THE
NEVADA PROCEEDING.  THE REQUIREMENTS OF PROCEDURAL DUE PROCESS WERE
SATISFIED AND THE DOMICILE OF THE HUSBAND IN NEVADA WAS FOUNDATION FOR
A DECREE EFFECTING A CHANGE IN THE MARITAL CAPACITY OF BOTH PARTIES IN
ALL THE OTHER STATES OF THE UNION, AS WELL AS IN NEVADA.  WILLIAMS V.
NORTH CAROLINA, 317 U.S. 287.  BUT THE FACT THAT MARITAL CAPACITY WAS
CHANGED DOES NOT MEAN THAT EVERY OTHER LEGAL INCIDENCE OF THE MARRIAGE
WAS NECESSARILY AFFECTED. 

ALTHOUGH THE POINT WAS NOT ADJUDICATED IN BARBER V. BARBER, 21 HOW. 
582, 588, THE COURT IN THAT CASE RECOGNIZED THAT WHILE A DIVORCE DECREE
OBTAINED IN WISCONSIN BY A HUSBAND FROM HIS ABSENT WIFE MIGHT DISSOLVE
THE VINCULUM OF THE MARRIAGE, IT DID NOT MEAN THAT HE WAS FREED FROM
PAYMENT OF ALIMONY UNDER AN EARLIER SEPARATION DECREE GRANTED BY NEW
YORK.  AN ABSOLUTIST MIGHT QUARREL WITH THE RESULT AND DEMAND A RULE
THAT ONCE A DIVORCE IS GRANTED, THE WHOLE OF THE MARRIAGE RELATION IS
DISSOLVED, LEAVING NO ROOTS OR TENDRILS OF ANY KIND.  BUT THERE ARE FEW
AREAS OF THE LAW IN BLACK AND WHITE.  THE GREYS ARE DOMINANT AND EVEN
AMONG THEM THE SHADES ARE INNUMERABLE.  FOR THE ETERNAL PROBLEM OF THE
LAW IS ONE OF MAKING ACCOMMODATIONS BETWEEN CONFLICTING INTERESTS. 
THIS IS WHY MOST LEGAL PROBLEMS END AS QUESTIONS OF DEGREE.  THAT IS
TRUE OF THE PRESENT PROBLEM UNDER THE FULL FAITH AND CREDIT CLAUSE. 
FN2  THE QUESTION INVOLVES IMPORTANT CONSIDERATIONS BOTH OF LAW AND OF
POLICY WHICH IT IS ESSENTIAL TO STATE. 

THE SITUATIONS WHERE A JUDGMENT OF ONE STATE HAS BEEN DENIED FULL
FAITH AND CREDIT IN ANOTHER STATE, BECAUSE ITS ENFORCEMENT WOULD
CONTRAVENE THE LATTER'S POLICY, HAVE BEEN FEW AND FAR BETWEEN.  SEE
WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 294-295; MAGNOLIA PETROLEUM
CO. V. HUNT, 320 U.S. 430, 438-439, AND CASES CITED; SHERRER V.
SHERRER, SUPRA.  THE FULL FAITH AND CREDIT CLAUSE IS NOT TO BE APPLIED,
ACCORDION-LIKE, TO ACCOMMODATE OUR PERSONAL PREDILECTIONS.  IT
SUBSTITUTED A COMMAND FOR THE EARLIER PRINCIPLES OF COMITY AND THUS
BASICALLY ALTERED THE STATUS OF THE STATES AS INDEPENDENT SOVEREIGNS. 
WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 301-302; SHERRER V. SHERRER,
SUPRA.  IT ORDERED SUBMISSION BY ONE STATE EVEN TO HOSTILE POLICIES
REFLECTED IN THE JUDGMENT OF ANOTHER STATE, BECAUSE THE PRACTICAL
OPERATION OF THE FEDERAL SYSTEM, WHICH THE CONSTITUTION DESIGNED,
DEMANDED IT.  THE FACT THAT THE REQUIREMENTS OF FULL FAITH AND CREDIT,
SO FAR AS JUDGMENTS ARE CONCERNED,  FN3  ARE EXACTING, IF NOT
INEXORABLE (SHERRER V. SHERRER, SUPRA), 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.  FN4 

MARITAL STATUS INVOLVES THE REGULARITY AND INTEGRITY OF THE MARRIAGE
RELATION.  IT AFFECTS THE LEGITIMACY OF THE OFFSPRING OF MARRIAGE.  IT
IS THE BASIS OF CRIMINAL LAWS, AS THE BIGAMY PROSECUTION IN WILLIAMS V.
NORTH CAROLINA DRAMATICALLY ILLUSTRATES.  THE STATE HAS A CONSIDERABLE
INTEREST IN PREVENTING BIGAMOUS MARRIAGES AND IN PROTECTING THE
OFFSPRING OF MARRIAGES FROM BEING BASTARDIZED.  THE INTEREST OF THE
STATE EXTENDS TO ITS DOMICILIARIES.  THE STATE SHOULD HAVE THE POWER TO
GUARD ITS INTEREST IN THEM BY CHANGING OR ALTERING THEIR MARITAL STATUS
AND BY PROTECTING THEM IN THAT CHANGED STATUS THROUGHOUT THE FARTHEST
REACHES OF THE NATION.  FOR A PERSON DOMICILED IN ONE STATE SHOULD NOT
BE ALLOWED TO SUFFER THE PENALTIES OF BIGAMY FOR LIVING OUTSIDE THE
STATE WITH THE ONLY ONE WHICH THE STATE OF HIS DOMICILE RECOGNIZES AS
HIS LAWFUL WIFE.  AND CHILDREN BORN OF THE ONLY MARRIAGE WHICH IS
LAWFUL IN THE STATE OF HIS DOMICILE SHOULD NOT CARRY THE STIGMA OF
BASTARDY WHEN THEY MOVE ELSEWHERE.  THESE ARE MATTERS OF LEGITIMATE
CONCERN TO THE STATE OF THE DOMICILE.  THEY ENTITLE THE STATE OF THE
DOMICILE TO BRING IN THE ABSENT SPOUSE THROUGH CONSTRUCTIVE SERVICE. 
IN NO OTHER WAY COULD THE STATE OF THE DOMICILE HAVE AND MAINTAIN
EFFECTIVE CONTROL OF THE MARITAL STATUS OF ITS DOMICILIARIES. 

THOSE ARE THE CONSIDERATIONS THAT HAVE LONG PERMITTED THE STATE OF
THE MATRIMONIAL DOMICILE TO CHANGE THE MARITAL STATUS OF THE PARTIES BY
AN EX PARTE DIVORCE PROCEEDING, THOMPSON V. THOMPSON, 226 U.S. 551,
CONSIDERATIONS WHICH IN THE WILLIAMS CASES WE THOUGHT WERE EQUALLY
APPLICABLE TO ANY STATE IN WHICH ONE SPOUSE HAD ESTABLISHED A BONA FIDE
DOMICILE.  SEE 317 U.S. PP. 300-301.  BUT THOSE CONSIDERATIONS HAVE
LITTLE RELEVANCY HERE.  IN THIS CASE NEW YORK EVINCED A CONCERN WITH
THIS BROKEN MARRIAGE WHEN BOTH PARTIES WERE DOMICILED IN NEW YORK AND
BEFORE NEVADA HAD ANY CONCERN WITH IT.  NEW YORK WAS RIGHTLY CONCERNED
LEST THE ABANDONED SPOUSE BE LEFT IMPOVERISHED AND PERHAPS BECOME A
PUBLIC CHARGE.  THE PROBLEM OF HER LIVELIHOOD AND SUPPORT IS PLAINLY A
MATTER IN WHICH HER COMMUNITY HAD A LEGITIMATE INTEREST.  THE NEW YORK
COURT, HAVING JURISDICTION OVER BOTH PARTIES, UNDERTOOK TO PROTECT HER
BY GRANTING HER A JUDGMENT OF PERMANENT ALIMONY.  NEVADA, HOWEVER,
APPARENTLY FOLLOWS LOWS THE RULE THAT DISSOLUTION OF THE MARRIAGE PUTS
AN END TO A SUPPORT ORDER.  SEE HERRICK V. HERRICK, 55 NEV. 59, 68, 25
P.2D 378, 380.  BUT THE QUESTION IS WHETHER NEVADA COULD UNDER ANY
CIRCUMSTANCES ADJUDICATE RIGHTS OF RESPONDENT UNDER THE NEW YORK
JUDGMENT WHEN SHE WAS NOT PERSONALLY SERVED OR DID NOT APPEAR IN THE
PROCEEDING. 

BASSETT V. BASSETT, 141 F.2D 954, HELD THAT NEVADA COULD NOT.  FN5
WE AGREE WITH THAT VIEW. 

THE NEW YORK JUDGMENT IS A PROPERTY INTEREST OF RESPONDENT, CREATED
BY NEW YORK IN A PROCEEDING IN WHICH BOTH PARTIES WERE PRESENT.  IT
IMPOSED OBLIGATIONS ON PETITIONER AND GRANTED RIGHTS TO RESPONDENT. 
THE PROPERTY INTEREST WHICH IT CREATED WAS AN INTANGIBLE, JURISDICTION
OVER WHICH CANNOT BE EXERTED THROUGH CONTROL OVER A PHYSICAL THING. 
JURISDICTION OVER AN INTANGIBLE CAN INDEED ONLY ARISE FROM CONTROL OR
POWER OVER THE PERSONS WHOSE RELATIONSHIPS ARE THE SOURCE OF THE RIGHTS
AND OBLIGATIONS.  CF. CURRY V. MCCANLESS, 307 U.S. 357, 366. 

JURISDICTION OVER A DEBTOR IS SUFFICIENT TO GIVE THE STATE OF HIS
DOMICILE SOME CONTROL OVER THE DEBT WHICH HE OWES.  IT CAN, FOR
EXAMPLE, LEVY A TAX ON ITS TRANSFER BY WILL (BLACKSTONE V. MILLER, 188
U.S. 189; STATE TAX COMM'N V. ALDRICH, 316 U.S. 174, 176-177),
APPROPRIATE IT THROUGH GARNISHMENT OR ATTACHMENT (CHICAGO, R.I. & P.R.
CO. V. STURM, 174 U.S. 710; SEE HARRIS V. BALK, 198 U.S. 215), COLLECT
IT AND ADMINISTER IT FOR THE BENEFIT OF CREDITORS.  CLARK V. WILLIARD,
294 U.S. 211; FISCHER V. AMERICAN UNITED INS. CO., 314 U.S. 549, 553. 
BUT WE ARE AWARE OF NO POWER WHICH THE STATE OF DOMICILE OF THE DEBTOR
HAS TO DETERMINE THE PERSONAL RIGHTS OF THE CREDITOR IN THE INTANGIBLE
UNLESS THE CREDITOR HAS BEEN PERSONALLY SERVED OR APPEARS IN THE
PROCEEDING.  THE EXISTENCE OF ANY SUCH POWER HAS BEEN REPEATEDLY
DENIED.  PENNOYER V. NEFF, 95 U.S. 714; HART V. SANSOM, 110 U.S. 151;
NEW YORK LIFE INS. CO. V. DUNLEVY, 241 U.S. 518. 

WE KNOW OF NO SOURCE OF POWER WHICH WOULD TAKE THE PRESENT CASE OUT
OF THAT CATEGORY.  THE NEVADA DECREE THAT IS SAID TO WIPE OUT
RESPONDENT'S CLAIM FOR ALIMONY UNDER THE NEW YORK JUDGMENT IS NOTHING
LESS THAN AN ATTEMPT BY NEVADA TO RESTRAIN RESPONDENT FROM ASSERTING
HER CLAIM UNDER THAT JUDGMENT.  THAT IS AN ATTEMPT TO EXERCISE AN IN
PERSONAM JURISDICTION OVER A PERSON NOT BEFORE THE COURT.  THAT MAY NOT
BE DONE.  SINCE NEVADA HAD NO POWER TO ADJUDICATE RESPONDENT'S RIGHTS
IN THE NEW YORK JUDGMENT, NEW YORK NEED NOT GIVE FULL FAITH AND CREDIT
TO THAT PHASE OF NEVADA'S JUDGMENT.  A JUDGMENT OF A COURT HAVING NO
JURISDICTION TO RENDER IT IS NOT ENTITLED TO THE FULL FAITH AND CREDIT
WHICH THE CONSTITUTION AND STATUTE OF THE UNITED STATES DEMAND. 
HANSBERRY V. LEE, 311 U.S. 32, 40-41; WILLIAMS V. NORTH CAROLINA, 325
U.S. 226, 229, AND CASES CITED. 

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.  IT ACCOMMODATES
THE INTERESTS OF BOTH NEVADA AND NEW YORK IN THIS BROKEN MARRIAGE BY
RESTRICTING EACH STATE TO THE MATTERS OF HER DOMINANT CONCERN. 

SINCE NEVADA HAD NO JURISDICTION TO ALTER RESPONDENT'S RIGHTS IN THE
NEW YORK JUDGMENT, WE DO NOT REACH THE FURTHER QUESTION WHETHER IN ANY
EVENT THAT JUDGMENT WOULD BE ENTITLED TO FULL FAITH AND CREDIT IN
NEVADA.  SEE SISTARE V. SISTARE, 218 U.S. 1; BARBER V. BARBER, 323 U.S.
77; GRIFFIN V. GRIFFIN, 327 U.S. 220.  AND IT WILL BE TIME ENOUGH TO
CONSIDER THE EFFECT OF ANY DISCRIMINATION SHOWN TO OUT-OF-STATE EX
PARTE DIVORCES WHEN A STATE MAKES THAT ITS POLICY.  AFFIRMED.    FN1
THAT CLAUSE DIRECTS THAT "FULL FAITH AND CREDIT SHALL BE GIVEN IN EACH
STATE TO THE PUBLIC ACTS, RECORDS, AND JUDICIAL PROCEEDINGS OF EVERY
OTHER STATE" AND PROVIDES THAT "CONGRESS MAY BY GENERAL LAWS PRESCRIBE
THE MANNER IN WHICH SUCH ACTS, RECORDS AND PROCEEDINGS SHALL BE PROVED,
AND THE EFFECT THEREOF."  BY THE ACT OF MAY 26, 1790, C. 11, 1 STAT.
122, AS AMENDED, 28 U.S.C. SEC. 687, CONGRESS PROVIDED THAT THE
"RECORDS AND JUDICIAL PROCEEDINGS" OF THE COURTS OF ANY STATE "SHALL
HAVE SUCH FAITH AND CREDIT GIVEN TO THEM IN EVERY COURT WITHIN THE
UNITED STATES, AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE STATE
FROM WHICH THEY ARE TAKEN." 

FN2  SEE BINGHAM, IN THE MATTER OF HADDOCK V. HADDOCK, 21 CORN.  L.
QUART.  393; RADIN, THE AUTHENTICATED FULL FAITH AND CREDIT CLAUSE, 39
ILL. L. REV. 1; HOLT, THE BONES OF HADDOCK V. HADDOCK, 41 MICH. L. REV.
1013, 1034; BARNHARD, HADDOCK REVERSED - HARBINGER OF THE DIVISIBLE
DIVORCE, 31 GEO. L.J. 210; COOK, IS HADDOCK V. HADDOCK OVERRULED, 18
IND. L.J. 165. 

FN3  AS RESPECTS STATUTES, SEE THE DISCUSSION IN WILLIAMS V. NORTH
CAROLINA, 317 U.S. 287, 295-296. 

FN4  THE CASE IS UNLIKE THOMPSON V. THOMPSON, 226 U.S. 551, WHERE THE
WIFE BY HER CONDUCT FORFEITED HER RIGHT TO ALIMONY UNDER THE LAWS OF
THE STATE OF THE MATRIMONIAL DOMICILE WHERE HER HUSBAND OBTAINED THE
DIVORCE, AND HENCE COULD NOT RETAIN A JUDGMENT FOR MAINTENANCE
SUBSEQUENTLY OBTAINED IN ANOTHER JURISDICTION. 

FN5  AND SEE MILLER V. MILLER, 200 IOWA 1193, 206 N.W. 262. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE COURT'S OPINION APPEARS TO REST ON THREE INDEPENDENT GROUNDS: 

(1)  NEW YORK MAY, CONSISTENTLY WITH THE FULL FAITH AND CREDIT
CLAUSE, HOLD THAT A PRIOR SEPARATE MAINTENANCE DECREE OF ONE OF ITS
COURTS SURVIVES A DECREE OF DIVORCE WITHIN THE SCOPE OF ENFORCEABILITY
OF THE RULE IN WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, WHETHER SUCH
DIVORCE IS GRANTED IN NEW YORK OR BY A SISTER STATE; 

(2)  BY VIRTUE OF ITS INTEREST IN PREVENTING ITS CITIZENS FROM
BECOMING PUBLIC CHARGES, NEW YORK MAY CONSTITUTIONALLY PROVIDE THAT A
DOMESTIC SEPARATE MAINTENANCE DECREE SURVIVES A SISTER-STATE DIVORCE
DECREE WHICH MUST BE RESPECTED IN NEW YORK UNDER THE RULE IN THE FIRST
WILLIAMS CASE, SUPRA; 

(3)  A SEPARATE MAINTENANCE DECREE CREATES AN OBLIGATION WHICH MAY
NOT, CONSISTENTLY WITH DUE PROCESS, BE EXTINGUISHED BY A COURT LACKING
PERSONAL JURISDICTION OF THE OBLIGEE, THOUGH POSSESSED OF JURISDICTION
TO TERMINATE HER MARITAL STATUS, AND ANY JUDGMENT PURPORTING TO DO SO
IS NOT ENTITLED TO EXTRA-STATE RECOGNITION. 

TO THE FIRST OF THESE GROUNDS I ASSENT, AND IF SUCH IS THE LAW OF NEW
YORK I AGREE THAT THE DECISION OF THE NEW YORK COURT OF APPEALS IN THIS
CASE MUST BE UPHELD.  IT IS FOR NEW YORK TO DECIDE WHETHER ITS DECREES
FOR SEPARATE MAINTENANCE SURVIVE DIVORCE OR TERMINATE WITH IT,
PROVIDED, OF COURSE, THAT ITS DECISION IS NOT A MERE ATTEMPT TO DEFEAT
A FEDERAL RIGHT, GIVEN BY THE FULL FAITH AND CREDIT CLAUSE, UNDER THE
GUISE OF A DETERMINATION OF STATE LAW.  CF. DAVIS V. WECHSLER, 263 U.S.
22, 24-25. 

THE SECOND GROUND PRESENTS DIFFICULTIES.  I CANNOT AGREE THAT NEW
YORK'S INTEREST IN ITS RESIDENTS WOULD JUSTIFY NEW YORK IN GIVING LESS
EFFECT TO AN ENFORCEABLE NEVADA DIVORCE GRANTED TO ONE DOMICILED IN
NEVADA, AGAINST A SPOUSE NOT PERSONALLY SERVED, THAN IT WOULD GIVE TO A
VALID NEW YORK DIVORCE SIMILARLY OBTAINED.  AS TO THIS, I AGREE WITH
THE VIEWS OF MY BROTHER JACKSON.  IF, ON THE OTHER HAND, NEW YORK DOES
NOT SO DISCRIMINATE AGAINST ENFORCEABLE "EX PARTE" DIVORCE DECREES
GRANTED BY A SISTER STATE, NO PROBLEM UNDER THE FULL FAITH AND CREDIT
CLAUSE ARISES. 

FURTHERMORE, IF THE RESPONDENT HAD OBTAINED HER SEPARATE MAINTENANCE
DECREE IN PENNSYLVANIA - WHICH TREATS SUCH DECREES AS TERMINATED BY ANY
VALID DIVORCE, SEE ESENWEIN V. ESENWEIN, 325 U.S. 279 - AND HAD
SUBSEQUENTLY MOVED TO NEW YORK AND THERE BROUGHT A SUIT BASED ON THE
PENNSYLVANIA DECREE, IT IS CLEAR THAT NEW YORK'S INTEREST IN PREVENTING
THE RESPONDENT FROM BECOMING A PUBLIC CHARGE WOULD NOT JUSTIFY REFUSAL
TO TREAT THE SEPARATE MAINTENANCE DECREE AS HAVING BEEN TERMINATED. 
NEW YORK WOULD BE REQUIRED TO REFER TO THE LAW OF PENNSYLVANIA TO
DETERMINE WHETHER THE MAINTENANCE DECREE OF THAT COMMONWEALTH HAD
SURVIVED THE NEVADA DIVORCE, AND, FINDING THAT IT HAD NOT, THE NEW YORK
COURTS COULD NOT ENFORCE IT. 

MY DIFFICULTY WITH THE THIRD GROUND OF THE COURT'S OPINION IS THAT
NEVADA DID NOT PURPORT, SO FAR AS THE RECORD DISCLOSES, TO RULE ON THE
SURVIVAL OF THE NEW YORK SEPARATE MAINTENANCE DECREE.  NEVADA MERELY
ESTABLISHED A CHANGE IN STATUS.  IT WAS FOR NEW YORK TO DETERMINE THE
EFFECT, WITH REFERENCE TO ITS OWN LAW, OF THAT CHANGE IN STATUS.  IF IT
WAS THE LAW OF NEW YORK THAT DIVORCE PUT AN END TO ITS SEPARATE
MAINTENANCE DECREE, THE RESPONDENT'S DECREE WOULD HAVE BEEN TERMINATED
NOT BY THE NEVADA DIVORCE BUT BY THE CONSEQUENCES, UNDER THE NEW YORK
LAW, OF A CHANGE IN STATUS, EVEN THOUGH BROUGHT ABOUT BY NEVADA. 
SIMILARLY, NEVADA COULD NOT ADJUDICATE RIGHTS IN NEW YORK REALTY, BUT,
IF NEW YORK LAW PROVIDED FOR DOWER, A NEVADA DIVORCE MIGHT OR MIGHT NOT
TERMINATE A DOWER INTEREST IN NEW YORK REALTY DEPENDING ON WHETHER OR
NOT NEW YORK TREATED DOWER RIGHTS AS EXTINGUISHED BY DIVORCE. 

IF THE NEVADA DECREE, INSOFAR AS IT AFFECTED THE NEW YORK SEPARATE
MAINTENANCE DECREE, WERE VIOLATIVE OF DUE PROCESS, NEW YORK OF COURSE
WOULD NOT HAVE TO GIVE EFFECT TO IT.  IT COULD NOT DO SO EVEN IF IT
WISHED.  IF THE NEVADA DECREE INVOLVED A VIOLATION OF DUE PROCESS,
THERE IS AN END OF THE MATTER AND OTHER COMPLICATED ISSUES NEED NOT BE
CONSIDERED.  IT WOULD NOT MATTER WHETHER NEW YORK HAD A SPECIAL
INTEREST IN PREVENTING ITS RESIDENTS FROM BECOMING PUBLIC CHARGES, OR
WHETHER NEW YORK TREATED MAINTENANCE DECREES AS SURVIVING A VALID
DIVORCE. 

ACCORDINGLY, THE CRUCIAL ISSUE, AS I SEE IT, IS WHETHER NEW YORK HAS
HELD THAT NO "EX PARTE" DIVORCE DECREE COULD TERMINATE A PRIOR NEW YORK
SEPARATE MAINTENANCE DECREE, OR WHETHER IT HAS DECIDED MERELY THAT NO
"EX PARTE" DIVORCE DECREE OF ANOTHER STATE COULD.  THE OPINION OF THE
COURT OF APPEALS LEAVES THIS CRUCIAL ISSUE IN DOUBT.  THE PRIOR
DECISIONS OF THE NEW YORK COURTS DO NOT DISPEL MY DOUBTS.  NEITHER DO
THE CASES CITED IN THE COURT OF APPEALS' OPINION, WHICH, WITH THE
EXCEPTION OF WAGSTER V. WAGSTER, 193 ARK. 902, DO NOT INVOLVE "EX
PARTE" DOMESTIC DIVORCES.  NEW YORK MAY LEGITIMATELY DECLINE TO ALLOW
ANY "EX PARTE" DIVORCE TO DISSOLVE ITS PRIOR SEPARATE MAINTENANCE
DECREE, BUT IT MAY NOT, CONSISTENTLY WITH WILLIAMS V. NORTH CAROLINA,
317 U.S. 287, DISCRIMINATE AGAINST A NEVADA DECREE GRANTED TO ONE THERE
DOMICILED, AND AFFORD IT LESS EFFECT THAN IT GIVES TO A DECREE OF ITS
OWN WITH SIMILAR JURISDICTIONAL FOUNDATION.  I CANNOT BE SURE WHICH IT
HAS DONE. 

I AM REINFORCED IN THESE VIEWS BY MR. JUSTICE JACKSON'S DISSENT.  AS
A NEW YORK LAWYER AND THE JUSTICE ASSIGNED TO THE SECOND CIRCUIT, HE IS
PRESUMABLY NOT WITHOUT KNOWLEDGE OF NEW YORK LAW.  THE COURT'S OPINION
IS WRITTEN IN A SPIRIT OF CERTITUDE THAT THE NEW YORK LAW IS CONTRARY
TO THAT WHICH MR. JUSTICE JACKSON ASSUMES IT TO BE.  THUS, ON THE ISSUE
THAT I DEEM DECISIVE OF THE QUESTION WHETHER NEW YORK HAS GIVEN FULL
FAITH AND CREDIT TO THE NEVADA DECREE - NAMELY, WHETHER UNDER NEW
YORK'S LAW DIVORCE DECREES BASED ON PUBLICATION TERMINATE SUPPORT - HER
LAW HAS THUS FAR NOT SPOKEN WITH ASCERTAINABLE CLARITY.  I WOULD
THEREFORE REMAND THE CASE TO THE NEW YORK COURT OF APPEALS FOR
CLARIFICATION OF ITS RATIONALE.  "  ...  IT IS  ...  IMPORTANT THAT
AMBIGUOUS OR OBSCURE ADJUDICATIONS BY STATE COURTS DO NOT STAND AS
BARRIERS TO A DETERMINATION BY THIS COURT OF THE VALIDITY UNDER THE
FEDERAL CONSTITUTION OF STATE ACTION.  INTELLIGENT EXERCISE OF OUR
APPELLATE POWERS COMPELS US TO ASK FOR THE ELIMINATION OF THE
OBSCURITIES AND AMBIGUITIES FROM THE OPINIONS IN SUCH CASES." 
MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551, 557. 

MR. JUSTICE JACKSON, DISSENTING. 

IF THERE IS ONE THING THAT THE PEOPLE ARE ENTITLED TO EXPECT FROM
THEIR LAWMAKERS, IT IS RULES OF LAW THAT WILL ENABLE INDIVIDUALS TO
TELL WHETHER THEY ARE MARRIED AND, IF SO, TO WHOM.  TODAY MANY PEOPLE
WHO HAVE SIMPLY LIVED IN MORE THAN ONE STATE DO NOT KNOW, AND THE MOST
LEARNED LAWYER CANNOT ADVISE THEM WITH ANY CONFIDENCE.  THE
UNCERTAINTIES THAT RESULT ARE NOT MERELY TECHNICAL, NOR ARE THEY
TRIVIAL; THEY AFFECT FUNDAMENTAL RIGHTS AND RELATIONS SUCH AS THE
LAWFULNESS OF THEIR COHABITATION, THEIR CHILDREN'S LEGITIMACY, THEIR
TITLE TO PROPERTY, AND EVEN WHETHER THEY ARE LAW-ABIDING PERSONS OR
CRIMINALS.  IN A SOCIETY AS MOBILE AND NOMADIC AS OURS, SUCH
UNCERTAINTIES AFFECT LARGE NUMBERS OF PEOPLE AND CREATE A SOCIAL
PROBLEM OF SOME MAGNITUDE.  IT IS THEREFORE IMPORTANT THAT, WHATEVER WE
DO, WE SHALL NOT ADD TO THE CONFUSION.  I THINK THAT THIS DECISION DOES
JUST THAT. 

THESE PARTIES LIVED TOGETHER IN NEW YORK STATE DURING THEIR ENTIRE
MARRIED LIFE.  COURTS OF THAT STATE GRANTED JUDGMENT OF SEPARATION,
WITH AWARD OF ALIMONY TO THE WIFE, IN OCTOBER 1943.  THREE MONTHS LATER
THE HUSBAND JOURNEYED TO NEVADA AND IN THREE MORE MONTHS BEGAN A
DIVORCE ACTION.  NO PROCESS WAS SERVED ON THE WIFE IN NEVADA; SHE WAS
PUT ON NOTICE ONLY BY CONSTRUCTIVE SERVICE THROUGH PUBLICATION IN NEW
YORK.  NOTIFIED THUS OF WHAT WAS GOING ON, SHE WAS PUT TO THIS CHOICE:
TO GO TO NEVADA AND FIGHT A BATTLE, HOPELESS UNDER NEVADA LAWS, TO KEEP
HER NEW YORK JUDGMENT, OR TO DO NOTHING.  SHE DID NOTHING, AND THE
NEVADA COURT GRANTED THE HUSBAND A DIVORCE WITHOUT REQUIRING PAYMENT OF
ALIMONY. 

NOW THE QUESTION IS WHETHER THE NEW YORK JUDGMENT OF SEPARATION OR
THE NEVADA JUDGMENT OF DIVORCE CONTROLS THE PRESENT OBLIGATION TO PAY
ALIMONY.  THE NEW YORK JUDGMENT OF SEPARATION IS BASED ON THE PREMISE
THAT THE PARTIES REMAIN HUSBAND AND WIFE, THOUGH ESTRANGED, AND HENCE
THE OBLIGATION OF SUPPORT, INCIDENT TO MARRIAGE, CONTINUES.  THE NEVADA
DECREE IS BASED ON THE CONTRARY PREMISE THAT THE MARRIAGE NO LONGER
EXISTS AND SO OBLIGATIONS DEPENDENT ON IT HAVE CEASED. 

THE COURT REACHES THE SOLOMON-LIKE CONCLUSION THAT THE NEVADA DECREE
IS HALF GOOD AND HALF BAD UNDER THE FULL FAITH AND CREDIT CLAUSE.  IT
IS GOOD TO FREE THE HUSBAND FROM THE MARRIAGE; IT IS NOT GOOD TO FREE
HIM FROM ITS INCIDENTAL OBLIGATIONS.  ASSUMING THE JUDGMENT TO BE ONE
WHICH THE CONSTITUTION REQUIRES TO BE RECOGNIZED AT ALL, I DO NOT SEE
HOW WE CAN SQUARE THIS DECISION WITH THE COMMAND THAT IT BE GIVEN FULL
FAITH AND CREDIT.  FOR REASONS WHICH I STATED IN DISSENTING IN WILLIAMS
V. NORTH CAROLINA, 317 U.S. 287, I WOULD NOT GIVE STANDING UNDER THE
CLAUSE TO CONSTRUCTIVE SERVICE DIVORCES OBTAINED ON SHORT RESIDENCE. 
BUT IF WE ARE TO HOLD THIS DIVORCE GOOD, I DO NOT SEE HOW IT CAN BE
LESS GOOD THAN A DIVORCE WOULD BE IF RENDERED BY THE COURTS OF NEW
YORK. 

AS I UNDERSTAND NEW YORK LAW, IF, AFTER A DECREE OF SEPARATION AND
ALIMONY, THE HUSBAND HAD OBTAINED A NEW YORK DIVORCE AGAINST HIS WIFE,
IT WOULD TERMINATE HER RIGHT TO ALIMONY.  IF THE NEVADA JUDGMENT IS TO
HAVE FULL FAITH AND CREDIT, I THINK IT MUST HAVE THE SAME EFFECT THAT A
SIMILAR NEW YORK DECREE WOULD HAVE.  I DO NOT SEE HOW WE CAN HOLD THAT
IT MUST BE ACCEPTED FOR SOME PURPOSES AND NOT FOR OTHERS, THAT HE IS
FREE OF HIS FORMER MARRIAGE BUT STILL MAY BE JAILED, AS HE MAY IN NEW
YORK, FOR NOT PAYING THE MAINTENANCE OF A WOMAN WHOM THE COURT IS
COMPELLED TO CONSIDER AS NO LONGER HIS WIFE. 
..END :







KREIGER V. KREIGER, 334 U.S. 555 


NO. 371.  ARGUED FEBRUARY 2-3, 1948.  - DECIDED JUNE 7, 1948.  - 297
N.Y. 530, 74 N.E.2D 468, AFFIRMED. 


WHILE BOTH SPOUSES WERE DOMICILED IN NEW YORK, A WIFE OBTAINED A
DECREE OF SEPARATION AND ALIMONY THERE.  LATER THE HUSBAND OBTAINED A
NEVADA DIVORCE IN A PROCEEDING IN WHICH THE WIFE WAS NOTIFIED
CONSTRUCTIVELY AND ENTERED NO APPEARANCE.  HE STOPPED PAYING ALIMONY
AND THE WIFE SUED IN NEW YORK FOR THE AMOUNT IN ARREARS.  THE HUSBAND
APPEARED AND DEFENDED ON THE GROUND OF THE NEVADA DIVORCE.  THE NEW
YORK COURT GRANTED THE WIFE JUDGMENT FOR THE ARREARS OF ALIMONY.  THE
HIGHEST COURT OF NEW YORK AFFIRMED.  HELD:  THE NEW YORK JUDGMENT DID
NOT DENY FULL FAITH AND CREDIT TO THE NEVADA DECREE, SINCE NEVADA HAD
NO POWER TO ADJUDICATE THE WIFE'S RIGHTS IN THE NEW YORK DECREE OF
ALIMONY.  SEE ESTIN V. ESTIN, ANTE, P. 541.  PP. 556-557. 

KREIGER V. KREIGER. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

NOTWITHSTANDING A DIVORCE OBTAINED BY A HUSBAND IN NEVADA, A NEW YORK
COURT GAVE THE WIFE A JUDGMENT FOR ARREARS OF ALIMONY AWARDED UNDER AN
EARLIER DECREE GRANTED WHILE BOTH SPOUSES WERE DOMICILED IN NEW YORK. 
THE APPELLATE DIVISION AFFIRMED.  271 N.Y. APP. DIV. 872, 66 N.Y.S.2D
798.  THE COURT OF APPEALS AFFIRMED.  297 N.Y. 530, 74 N.E.2D 468. 
THIS COURT GRANTED CERTIORARI.  332 U.S. 829.  AFFIRMED, P. 557. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
REED. 

THIS IS A COMPANION CASE TO ESTIN V. ESTIN, ANTE, P. 541, ALSO HERE
ON CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

THE PARTIES WERE MARRIED IN NEW YORK IN 1933 AND LIVED THERE TOGETHER
UNTIL THEIR SEPARATION IN 1935.  IN 1940 RESPONDENT OBTAINED A DECREE
OF SEPARATION IN NEW YORK ON GROUNDS OF ABANDONMENT.  PETITIONER
APPEARED IN THE ACTION; AND RESPONDENT WAS AWARDED $60 A WEEK ALIMONY
FOR THE SUPPORT OF HERSELF AND THEIR ONLY CHILD, WHOSE CUSTODY SHE WAS
GIVEN. 

PETITIONER THEREAFTER WENT TO NEVADA WHERE HE CONTINUES TO RESIDE. 
HE INSTITUTED DIVORCE PROCEEDINGS IN THAT STATE IN THE FALL OF 1944. 
CONSTRUCTIVE SERVICE WAS MADE ON RESPONDENT WHO MADE NO APPEARANCE IN
THE NEVADA PROCEEDINGS.  WHILE THEY WERE PENDING, RESPONDENT OBTAINED
AN ORDER IN NEW YORK PURPORTING TO ENJOIN PETITIONER FROM SEEKING A
DIVORCE AND FROM REMARRYING.  PETITIONER WAS NEITHER SERVED WITH
PROCESS IN NEW YORK NOR ENTERED AN APPEARANCE IN THE LATTER
PROCEEDING.  THE NEVADA COURT, WITH KNOWLEDGE OF THE INJUNCTION AND THE
NEW YORK JUDGMENT FOR ALIMONY, AWARDED PETITIONER AN ABSOLUTE DIVORCE
ON GROUNDS OF THREE CONSECUTIVE YEARS OF SEPARATION WITHOUT
COHABITATION.  THE JUDGMENT MADE NO PROVISION FOR ALIMONY.  IT DID
PROVIDE THAT PETITIONER WAS TO SUPPORT, MAINTAIN AND EDUCATE THE CHILD,
WHOSE CUSTODY IT PURPORTED TO GRANT HIM, AND AS TO WHICH JURISDICTION
WAS RESERVED.  PETITIONER THEREAFTER TENDERED $50 A MONTH FOR THE
SUPPORT OF THE CHILD BUT CEASED MAKING PAYMENTS UNDER THE NEW YORK
DECREE. 

RESPONDENT THEREUPON BROUGHT SUIT ON THE NEW YORK JUDGMENT IN A
FEDERAL DISTRICT COURT IN NEVADA.  WITHOUT WAITING THE OUTCOME OF THAT
LITIGATION SHE OBTAINED A JUDGMENT IN NEW YORK FOR THE AMOUNT OF THE
ARREARS, PETITIONER APPEARING AND UNSUCCESSFULLY PLEADING HIS NEVADA
DIVORCE AS A DEFENSE.  THE JUDGMENT WAS AFFIRMED BY THE APPELLATE
DIVISION, TWO JUDGES DISSENTING.  271 N.Y. APP. DIV. 872, 66 N.Y.S.2D
798.  THE COURT OF APPEALS AFFIRMED WITHOUT OPINION, 297 N.Y. 530, 74
N.E.2D 468, BUT STATED IN ITS REMITTITUR THAT ITS ACTION WAS BASED UPON
ESTIN V. ESTIN, 296 N.Y. 308, 73 N.E.2D 113.  RESPONDENT DOES NOT
ATTACK THE BONA FIDES OF PETITIONER'S NEVADA DOMICILE. 

FOR THE REASONS STATED IN ESTIN V. ESTIN, ANTE, P. 541, WE HOLD THAT
NEVADA HAD NO POWER TO ADJUDICATE RESPONDENT'S RIGHTS IN THE NEW YORK
JUDGMENT AND THUS NEW YORK WAS NOT REQUIRED TO BOW TO THAT PROVISION OF
THE NEVADA DECREE.  IT IS THEREFORE UNNECESSARY TO PASS UPON NEW YORK'S
ATTEMPT TO ENJOIN PETITIONER FROM SECURING A DIVORCE OR TO REACH THE
QUESTION WHETHER THE NEW YORK JUDGMENT WAS ENTITLED TO FULL FAITH AND
CREDIT IN THE NEVADA PROCEEDINGS.  NO ISSUE AS TO THE CUSTODY OF THE
CHILD WAS RAISED EITHER IN THE COURT BELOW OR IN THIS COURT.  THE
JUDGMENT IS AFFIRMED. 

MR. JUSTICE FRANKFURTER DISSENTS FOR THE REASONS STATED IN HIS
DISSENTING OPINION IN ESTIN V. ESTIN, ANTE, P. 549. 

MR. JUSTICE JACKSON DISSENTS FOR THE REASONS SET FORTH IN HIS OPINION
IN ESTIN V. ESTIN, ANTE, P. 553. 
..END :











SAIA V. NEW YORK, 334 U.S. 558 


NO. 504.  ARGUED MARCH 30, 1948.  - DECIDED JUNE 7, 1948.  - 297 N.Y.
659, 76 N.E.2D 323, REVERSED. 


A CITY ORDINANCE FORBIDDING THE USE OF SOUND AMPLIFICATION DEVICES IN
PUBLIC PLACES EXCEPT WITH THE PERMISSION OF THE CHIEF OF POLICE AND
PRESCRIBING NO STANDARDS FOR THE EXERCISE OF HIS DISCRETION IS
UNCONSTITUTIONAL ON ITS FACE, SINCE IT ESTABLISHES A PREVIOUS RESTRAINT
ON THE RIGHT OF FREE SPEECH IN VIOLATION OF THE FIRST AMENDMENT, MADE
APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.  PP. 558-562. 

SAIA V. NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

APPELLANT WAS CONVICTED OF VIOLATING A CITY ORDINANCE FORBIDDING THE
USE OF SOUND AMPLIFICATION DEVICES EXCEPT WITH THE PERMISSION OF THE
CHIEF OF POLICE.  THE COUNTY COURT AND THE NEW YORK COURT OF APPEALS
AFFIRMED.  297 N.Y. 659, 76 N.E.2D 323.  ON APPEAL TO THIS COURT,
REVERSED, P. 562. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BLACK. 

THIS CASE PRESENTS THE QUESTION OF THE VALIDITY UNDER THE FOURTEENTH
AMENDMENT OF A PENAL ORDINANCE OF THE CITY OF LOCKPORT, NEW YORK, WHICH
FORBIDS THE USE OF SOUND AMPLIFICATION DEVICES EXCEPT WITH PERMISSION
OF THE CHIEF OF POLICE.  FN1 

APPELLANT IS A MINISTER OF THE RELIGIOUS SECT KNOWN AS JEHOVAH'S
WITNESSES.  HE OBTAINED FROM THE CHIEF OF POLICE PERMISSION TO USE
SOUND EQUIPMENT, MOUNTED ATOP HIS CAR, TO AMPLIFY LECTURES ON RELIGIOUS
SUBJECTS.  THE LECTURES WERE GIVEN AT A FIXED PLACE IN A PUBLIC PARK ON
DESIGNATED SUNDAYS.  WHEN THIS PERMIT EXPIRED, HE APPLIED FOR ANOTHER
ONE BUT WAS REFUSED ON THE GROUND THAT COMPLAINTS HAD BEEN MADE. 
APPELLANT NEVERTHELESS USED HIS EQUIPMENT AS PLANNED ON FOUR OCCASIONS,
BUT WITHOUT A PERMIT.  HE WAS TRIED IN POLICE COURT FOR VIOLATIONS OF
THE ORDINANCE.  IT WAS UNDISPUTED THAT HE USED HIS EQUIPMENT TO AMPLIFY
SPEECHES IN THE PARK AND THAT THEY WERE ON RELIGIOUS SUBJECTS.  SOME
WITNESSES TESTIFIED THAT THEY WERE ANNOYED BY THE SOUND, THOUGH NOT BY
THE CONTENT OF THE ADDRESSES; OTHERS WERE NOT DISTURBED BY EITHER.  THE
COURT UPHELD THE ORDINANCE AGAINST THE CONTENTION THAT IT VIOLATED
APPELLANT'S RIGHTS OF FREEDOM OF SPEECH, ASSEMBLY, AND WORSHIP UNDER
THE FEDERAL CONSTITUTION.  FINES AND JAIL SENTENCES WERE IMPOSED.  HIS
CONVICTIONS WERE AFFIRMED WITHOUT OPINION BY THE COUNTY COURT FOR
NIAGARA COUNTY AND BY THE NEW YORK COURT OF APPEALS, 297 N.Y. 659, 76
N.E.2D 323.  THE CASE IS HERE ON APPEAL. 

WE HOLD THAT SEC. 3 OF THIS ORDINANCE IS UNCONSTITUTIONAL ON ITS
FACE, FOR IT ESTABLISHES A PREVIOUS RESTRAINT ON THE RIGHT OF FREE
SPEECH IN VIOLATION OF THE FIRST AMENDMENT WHICH IS PROTECTED BY THE
FOURTEENTH AMENDMENT AGAINST STATE ACTION.  TO USE A LOUD-SPEAKER OR
AMPLIFIER ONE HAS TO GET A PERMIT FROM THE CHIEF OF POLICE.  THERE ARE
NO STANDARDS PRESCRIBED FOR THE EXERCISE OF HIS DISCRETION.  THE
STATUTE IS NOT NARROWLY DRAWN TO REGULATE THE HOURS OR PLACES OF USE OF
LOUD-SPEAKERS, OR THE VOLUME OF SOUND (THE DECIBELS) TO WHICH THEY MUST
BE ADJUSTED.  THE ORDINANCE THEREFORE HAS ALL THE VICES OF THE ONES
WHICH WE STRUCK DOWN IN CANTWELL V. CONNECTICUT, 310 U.S. 296; LOVELL
V. GRIFFIN, 303 U.S. 444; AND HAGUE V. C.I.O., 307 U.S. 496. 

IN THE CANTWELL CASE A LICENSE HAD TO BE OBTAINED IN ORDER TO
DISTRIBUTE RELIGIOUS LITERATURE.  WHAT WAS RELIGIOUS WAS LEFT TO THE
DISCRETION OF A PUBLIC OFFICIAL.  WE HELD THAT JUDICIAL REVIEW TO
RECTIFY ABUSES IN THE LICENSING SYSTEM DID NOT SAVE THE ORDINANCE FROM
CONDEMNATION ON THE GROUNDS OF PREVIOUS RESTRAINT.  LOVELL V. GRIFFIN,
SUPRA, HELD VOID ON ITS FACE AN ORDINANCE REQUIRING A LICENSE FOR THE
DISTRIBUTION OF LITERATURE.  THAT ORDINANCE, LIKE THE PRESENT ONE, WAS
DRESSED IN THE GARB OF THE CONTROL OF A "NUISANCE."  BUT THE COURT MADE
SHORT SHRIFT OF THE ARGUMENT, SAYING THAT APPROVAL OF THE LICENSING
SYSTEM WOULD INSTITUTE CENSORSHIP "IN ITS BALDEST FORM."  IN HAGUE V.
C.I.O., SUPRA, WE STRUCK DOWN A CITY ORDINANCE WHICH REQUIRED A LICENSE
FROM A LOCAL OFFICIAL FOR A PUBLIC ASSEMBLY ON THE STREETS OR HIGHWAYS
OR IN THE PUBLIC PARKS OR PUBLIC BUILDINGS.  THE OFFICIAL WAS EMPOWERED
TO REFUSE THE PERMIT IF IN HIS OPINION THE REFUSAL WOULD PREVENT
"RIOTS, DISTURBANCES OR DISORDERLY ASSEMBLAGE."  WE HELD THAT THE
ORDINANCE WAS VOID ON ITS FACE BECAUSE IT COULD BE MADE "THE INSTRUMENT
OF ARBITRARY SUPPRESSION OF FREE EXPRESSION OF VIEWS ON NATIONAL
AFFAIRS."  307 U.S. P. 516. 

THE PRESENT ORDINANCE HAS THE SAME DEFECTS.  THE RIGHT TO BE HEARD IS
PLACED IN THE UNCONTROLLED DISCRETION OF THE CHIEF OF POLICE.  HE
STANDS ATHWART THE CHANNELS OF COMMUNICATION AS AN OBSTRUCTION WHICH
CAN BE REMOVED ONLY AFTER CRIMINAL TRIAL AND CONVICTION AND LENGTHY
APPEAL.  A MORE EFFECTIVE PREVIOUS RESTRAINT IS DIFFICULT TO IMAGINE. 
UNLESS WE ARE TO RETREAT FROM THE FIRM POSITIONS WE HAVE TAKEN IN THE
PAST, WE MUST GIVE FREEDOM OF SPEECH IN THIS CASE THE SAME PREFERRED
TREATMENT THAT WE GAVE FREEDOM OF RELIGION IN THE CANTWELL CASE,
FREEDOM OF THE PRESS IN THE GRIFFIN CASE, AND FREEDOM OF SPEECH AND
ASSEMBLY IN THE HAGUE CASE.  FN2 

LOUD-SPEAKERS ARE TODAY INDISPENSABLE INSTRUMENTS OF EFFECTIVE PUBLIC
SPEECH.  THE SOUND TRUCK HAS BECOME AN ACCEPTED METHOD OF POLITICAL
CAMPAIGNING.  IT IS THE WAY PEOPLE ARE REACHED.  MUST A CANDIDATE FOR
GOVERNOR OR THE CONGRESS DEPEND ON THE WHIM OR CAPRICE OF THE CHIEF OF
POLICE IN ORDER TO USE HIS SOUND TRUCK FOR CAMPAIGNING?  MUST HE PROVE
TO THE SATISFACTION OF THAT OFFICIAL THAT HIS NOISE WILL NOT BE
ANNOYING TO PEOPLE? 

THE PRESENT ORDINANCE WOULD BE A DANGEROUS WEAPON IF IT WERE ALLOWED
TO GET A HOLD ON OUR PUBLIC LIFE.  NOISE CAN BE REGULATED BY REGULATING
DECIBELS.  THE HOURS AND PLACE OF PUBLIC DISCUSSION CAN BE CONTROLLED. 
BUT TO ALLOW THE POLICE TO BAR THE USE OF LOUD-SPEAKERS BECAUSE THEIR
USE CAN BE ABUSED IS LIKE BARRING RADIO RECEIVERS BECAUSE THEY TOO MAKE
A NOISE.  THE POLICE NEED NOT BE GIVEN THE POWER TO DENY A MAN THE USE
OF HIS RADIO IN ORDER TO PROTECT A NEIGHBOR AGAINST SLEEPLESS NIGHTS. 
THE SAME IS TRUE HERE. 

ANY ABUSES WHICH LOUD-SPEAKERS CREATE CAN BE CONTROLLED BY NARROWLY
DRAWN STATUTES.  WHEN A CITY ALLOWS AN OFFICIAL TO BAN THEM IN HIS
UNCONTROLLED DISCRETION, IT SANCTIONS A DEVICE FOR SUPPRESSION OF FREE
COMMUNICATION OF IDEAS.  IN THIS CASE A PERMIT IS DENIED BECAUSE SOME
PERSONS WERE SAID TO HAVE FOUND THE SOUND ANNOYING.  IN THE NEXT ONE A
PERMIT MAY BE DENIED BECAUSE SOME PEOPLE FIND THE IDEAS ANNOYING. 
ANNOYANCE AT IDEAS CAN BE CLOAKED IN ANNOYANCE AT SOUND.  THE POWER OF
CENSORSHIP INHERENT IN THIS TYPE OF ORDINANCE REVEALS ITS VICE. 

COURTS MUST BALANCE THE VARIOUS COMMUNITY INTERESTS IN PASSING ON THE
CONSTITUTIONALITY OF LOCAL REGULATIONS OF THE CHARACTER INVOLVED HERE. 
BUT IN THAT PROCESS THEY SHOULD BE MINDFUL TO KEEP THE FREEDOMS OF THE
FIRST AMENDMENT IN A PREFERRED POSITION.  SEE MARSH V. ALABAMA, 326
U.S. 501, 509.  REVERSED. 

FN1  THE ORDINANCE, INSOFAR AS PERTINENT, READS AS FOLLOWS: 

"SECTION 2.  RADIO DEVICES, ETC.  IT SHALL BE UNLAWFUL FOR ANY PERSON
TO MAINTAIN AND OPERATE IN ANY BUILDING, OR ON ANY PREMISES OR ON ANY
AUTOMOBILE, MOTOR TRUCK OR OTHER MOTOR VEHICLE, ANY RADIO DEVICE,
MECHANICAL DEVICE, OR LOUD SPEAKER OR ANY DEVICE OF ANY KIND WHEREBY
THE SOUND THEREFROM IS CAST DIRECTLY UPON THE STREETS AND PUBLIC PLACES
AND WHERE SUCH DEVICE IS MAINTAINED FOR ADVERTISING PURPOSES OR FOR THE
PURPOSE OF ATTRACTING THE ATTENTION OF THE PASSING PUBLIC, OR WHICH IS
SO PLACED AND OPERATED THAT THE SOUNDS COMING THEREFROM CAN BE HEARD TO
THE ANNOYANCE OR INCONVENIENCE OF TRAVELERS UPON ANY STREET OR PUBLIC
PLACES OR OF PERSONS IN NEIGHBORING PREMISES. 

"SECTION 3.  EXCEPTION.  PUBLIC DISSEMINATION, THROUGH RADIO
LOUDSPEAKERS, OF ITEMS OF NEWS AND MATTERS OF PUBLIC CONCERN AND
ATHLETIC ACTIVITIES SHALL NOT BE DEEMED A VIOLATION OF THIS SECTION
PROVIDED THAT THE SAME BE DONE UNDER PERMISSION OBTAINED FROM THE CHIEF
OF POLICE." 

APPELLANT'S CONDUCT WAS REGARDED THROUGHOUT AS FALLING WITHIN THE
TYPES OF ACTIVITY ENUMERATED IN SEC. 3.  WE TAKE THE ORDINANCE AS
CONSTRUED BY THE STATE COURTS. 

FN2  COX V. NEW HAMPSHIRE, 312 U.S. 569, 577-578, DID NOT DEPART FROM
THE RULE OF THESE EARLIER CASES BUT RE-EMPHASIZED THE VICE OF THE TYPE
OF ORDINANCE WE HAVE HERE.  DAVIS V. MASSACHUSETTS, 167 U.S. 43, WAS
DISTINGUISHED IN THE HAGUE CASE, 307 U.S. PP. 514-516, WHICH LIKEWISE
INVOLVED AN ORDINANCE REGULATING THE USE OF PUBLIC STREETS AND PARKS. 
IT WAS THERE SAID, "WE HAVE NO OCCASION TO DETERMINE WHETHER, ON THE
FACTS DISCLOSED, THE DAVIS CASE WAS RIGHTLY DECIDED, BUT WE CANNOT
AGREE THAT IT RULES THE INSTANT CASE.  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." 

WE ADHERE TO THAT VIEW.  THOUGH THE STATEMENT WAS THAT OF ONLY THREE
JUSTICES, IT PLAINLY INDICATED THE ROUTE THE MAJORITY FOLLOWED, WHO ON
THE MERITS DID NOT CONSIDER THE DAVIS CASE TO BE CONTROLLING. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE
BURTON CONCUR, DISSENTING. 

THE APPELLANT'S LOUD-SPEAKERS BLARED FORTH IN A SMALL PARK IN A SMALL
CITY.  FN1  THE PARK WAS ABOUT 1,600 FEET LONG AND FROM 250 TO 400 FEET
WIDE.  IT WAS USED PRIMARILY FOR RECREATION, CONTAINING BENCHES, PICNIC
AND ATHLETIC FACILITIES, AND A CHILDREN'S WADING POOL AND PLAYGROUND. 
ESTIMATES OF THE RANGE OF THE SOUND EQUIPMENT VARIED FROM ABOUT 200 TO
600 FEET.  THE ATTENTION OF A LARGE FRACTION OF THE AREA OF THE PARK
WAS THUS COMMANDED. 

THE NATIVE POWER OF HUMAN SPEECH CAN INTERFERE LITTLE WITH THE SELF
PROTECTION OF THOSE WHO DO NOT WISH TO LISTEN.  THEY MAY EASILY MOVE
BEYOND EARSHOT, JUST AS THOSE WHO DO NOT CHOOSE TO READ NEED NOT HAVE
THEIR ATTENTION BLUDGEONED BY UNDESIRED READING MATTER.  AND SO
UTTERANCES BY SPEECH OR PEN CAN NEITHER BE FORBIDDEN NOR LICENSED, SAVE
IN THE FAMILIAR CLASSES OF EXCEPTIONAL SITUATIONS.  LOVELL V. GRIFFIN,
303 U.S. 444; HAGUE V. C.I.O., 307 U.S. 496; SCHNEIDER V. IRVINGTON,
308 U.S. 147; CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568.  BUT MODERN
DEVICES FOR AMPLIFYING THE RANGE AND VOLUME OF THE VOICE, OR ITS
RECORDING, AFFORD EASY, TOO EASY, OPPORTUNITIES FOR AURAL AGGRESSION. 
IF UNCONTROLLED, THE RESULT IS INTRUSION INTO CHERISHED PRIVACY.  THE
REFRESHMENT OF MERE SILENCE, OR MEDITATION, OR QUIET CONVERSATION, MAY
BE DISTURBED OR PRECLUDED BY NOISE BEYOND ONE'S PERSONAL CONTROL. 

MUNICIPALITIES HAVE CONSCIENTIOUSLY SOUGHT TO DEAL WITH THE NEW
PROBLEMS TO WHICH SOUND EQUIPMENT HAS GIVEN RISE AND HAVE DEVISED
VARIOUS METHODS OF CONTROL TO MAKE CITY LIFE ENDURABLE.  SEE MCINTIRE
AND RHYNE, RADIO AND MUNICIPAL REGULATIONS (NATIONAL INSTITUTE OF
MUNICIPAL LAW OFFICERS, REPORT NO. 62, 1940) PP. 28 ET SEQ. SURELY
THERE IS NOT A CONSTITUTIONAL RIGHT TO FORCE UNWILLING PEOPLE TO
LISTEN.  CF. OTTO, SPEECH AND FREEDOM OF SPEECH, IN FREEDOM AND
EXPERIENCE (EDITED BY HOOK AND KONVITZ, 1947) 78, 83 ET SEQ. AND SO I
CANNOT AGREE THAT WE MUST DENY THE RIGHT OF A STATE TO CONTROL THESE
BROADCASTING DEVICES SO AS TO SAFEGUARD THE RIGHTS OF OTHERS NOT TO BE
ASSAILED BY INTRUSIVE NOISE BUT TO BE FREE TO PUT THEIR FREEDOM OF MIND
AND ATTENTION TO USES OF THEIR OWN CHOICE. 

COMING TO THE FACTS OF THE IMMEDIATE SITUATION, I CANNOT SAY THAT IT
WAS BEYOND CONSTITUTIONAL LIMITS TO REFUSE A LICENSE TO THE APPELLANT
FOR THE TIME AND PLACE REQUESTED.  THE STATE WAS ENTITLED TO AUTHORIZE
THE LOCAL AUTHORITIES OF LOCKPORT TO DETERMINE THAT THE WELL-BEING OF
THOSE OF ITS INHABITANTS WHO SOUGHT QUIET AND OTHER PLEASURES THAT A
PARK AFFORDS, OUTWEIGHED THE APPELLANT'S RIGHT TO FORCE HIS MESSAGE
UPON THEM.  NOR DID IT EXCEED THE BOUNDS OF REASON FOR THE CHIEF OF
POLICE TO BASE HIS DECISION REFUSING A LICENSE UPON THE FACT THAT THE
MANNER IN WHICH THE LICENSE HAD BEEN USED IN THE PAST WAS DESTRUCTIVE
OF THE ENJOYMENT OF THE PARK BY THOSE FOR WHOM IT WAS MAINTAINED.  THAT
PEOPLE COMPLAINED ABOUT AN ANNOYANCE WOULD SEEM TO BE A PRETTY SOLID
BASIS IN EXPERIENCE FOR NOT SANCTIONING ITS CONTINUANCE. 

VERY DIFFERENT CONSIDERATIONS COME INTO PLAY WHEN THE FREE EXERCISE
OF RELIGION IS SUBJECTED TO A LICENSING SYSTEM WHEREBY A MINOR OFFICIAL
DETERMINES WHETHER A CAUSE IS RELIGIOUS.  THIS WAS THE PROBLEM
PRESENTED BY CANTWELL V. CONNECTICUT, 310 U.S. 296, AND OF COURSE WE
HELD THAT "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."  310 U.S. AT 305.  TO DETERMINE WHETHER A CAUSE IS, OR
IS NOT, "RELIGIOUS" OPENS UP TOO WIDE A FIELD OF PERSONAL JUDGMENT TO
BE LEFT TO THE MERE DISCRETION OF AN OFFICIAL.  AS TO THE ALLOWABLE
RANGE OF JUDGMENT REGARDING THE SCOPE OF "RELIGION," SEE JUDGE AUGUSTUS
N. HAND IN UNITED STATES V. KAUTEN, 133 F.2D 703, 708.  THE MATTER
BEFORE US IS OF QUITE A DIFFERENT ORDER.  IT IS NOT UNCONSTITUTIONAL
FOR A STATE TO VEST IN A PUBLIC OFFICIAL THE DETERMINATION OF WHAT IS
IN EFFECT A NUISANCE MERELY BECAUSE SUCH AUTHORITY MAY BE OUTRAGEOUSLY
MISUSED BY TRYING TO STIFLE THE EXPRESSION OF SOME UNDESIRED OPINION
UNDER THE MERETRICIOUS CLOAK OF A NUISANCE.  JUDICIAL REMEDIES ARE
AVAILABLE FOR SUCH ABUSE OF AUTHORITY, AND COURTS, INCLUDING THIS
COURT, EXIST TO ENFORCE SUCH REMEDIES.    EVEN THE POWER TO LIMIT THE
ABUSE OF SOUND EQUIPMENT MAY NOT BE EXERCISED WITH A PARTIALITY
UNRELATED TO THE NUISANCE.  BUT THERE IS HERE NO SHOWING OF EITHER
ARBITRARY ACTION OR DISCRIMINATION.  THERE IS NO BASIS FOR FINDING THAT
NOISEMAKERS SIMILAR TO APPELLANT WOULD HAVE OBTAINED A LICENSE FOR THE
TIME AND PLACE REQUESTED.  REFERENCE IS FOUND IN THE TESTIMONY TO THE
USE OF LOUD-SPEAKERS FOR LUTHERAN SERVICES IN A NEARBY BALLFIELD.  BUT
THE BALLFIELD WAS OUTSIDE THE PARK IN WHICH APPELLANT BLARED TO HIS
AUDIENCE, AND THERE IS NOTHING IN THE RECORD TO SHOW THAT THE LUTHERANS
COULD HAVE USED THEIR AMPLIFYING EQUIPMENT WITHIN THE PARK, OR THAT THE
APPELLANT WOULD HAVE BEEN DENIED PERMISSION TO USE SUCH EQUIPMENT IN
THE BALLFIELD.  SEE LEHON V. ATLANTA, 242 U.S. 53.  STATE ACTION CANNOT
BE FOUND HYPOTHETICALLY UNCONSTITUTIONAL.  NEW YORK EX REL. HATCH V.
REARDON, 204 U.S. 152. 

THE MEN WHOSE LABORS BROUGHT FORTH THE CONSTITUTION OF THE UNITED
STATES HAD THE STREET OUTSIDE INDEPENDENCE HALL COVERED WITH EARTH SO
THAT THEIR DELIBERATIONS MIGHT NOT BE DISTURBED BY PASSING TRAFFIC. 
OUR DEMOCRACY PRESUPPOSES THE DELIBERATIVE PROCESS AS A CONDITION OF
THOUGHT AND OF RESPONSIBLE CHOICE BY THE ELECTORATE.  TO THE FOUNDING
FATHERS IT WOULD HARDLY SEEM A PROOF OF PROGRESS IN THE DEVELOPMENT OF
OUR DEMOCRACY THAT THE BLARE OF SOUND TRUCKS MUST BE TREATED AS A
NECESSARY MEDIUM IN THE DELIBERATIVE PROCESS.  IN ANY EVENT, IT WOULD
STARTLE THEM TO LEARN THAT THE MANNER AND EXTENT OF THE CONTROL OF THE
BLARE OF THE SOUND TRUCKS BY THE STATES OF THE UNION, WHEN SUCH CONTROL
IS NOT ARBITRARILY AND DISCRIMINATORILY EXERCISED, MUST SATISFY WHAT
THIS COURT THINKS IS THE DESIRABLE SCOPE AND MANNER OF EXERCISING SUCH
CONTROL. 

WE ARE DEALING WITH NEW TECHNOLOGICAL DEVICES AND WITH ATTEMPTS TO
CONTROL THEM IN ORDER TO GAIN THEIR BENEFITS WHILE MAINTAINING THE
PRECIOUS FREEDOM OF PRIVACY.  THESE ATTEMPTS, BEING EXPERIMENTAL, ARE
BOUND TO BE TENTATIVE, AND THE VIEWS I HAVE EXPRESSED ARE DIRECTED
TOWARDS THE CIRCUMSTANCES OF THE IMMEDIATE CASE.  SUFFICE IT TO SAY
THAT THE LIMITATIONS BY NEW YORK UPON THE EXERCISE OF APPELLANT'S
RIGHTS OF UTTERANCE DID NOT IN MY VIEW EXCEED THE ACCOMMODATION BETWEEN
THE CONFLICTING INTERESTS WHICH THE STATE WAS HERE ENTITLED TO MAKE IN
VIEW OF TIME AND PLACE AND CIRCUMSTANCES.  SEE COX V. NEW HAMPSHIRE,
312 U.S. 569. 

FN1  THE LAST CENSUS GAVE THE POPULATION OF LOCKPORT AS 24,379. 

MR. JUSTICE JACKSON, DISSENTING. 

I DISSENT FROM THIS DECISION, WHICH SEEMS TO ME NEITHER JUDICIOUS NOR
SOUND AND TO ENDANGER THE GREAT RIGHT OF FREE SPEECH BY MAKING IT
RIDICULOUS AND OBNOXIOUS, MORE THAN THE ORDINANCE IN QUESTION MENACES
FREE SPEECH BY REGULATING USE OF LOUD-SPEAKERS.  LET US STATE SOME
FACTS WHICH THE COURT OMITS: 

THE CITY OF LOCKPORT, NEW YORK, OWNS AND MAINTAINS A PUBLIC PARK OF
SOME 28 ACRES DEDICATED BY DEED TO "PARK PURPOSES EXCLUSIVELY."  THE
SCENE OF ACTION IN THIS CASE IS AN AREA THEREIN SET APART FOR THE
PEOPLE'S RECREATION.  THE CITY HAS PROVIDED IT WITH TABLES, BENCHES,
AND FIREPLACES FOR PICNIC PARTIES, A PLAYGROUND AND WADING POOL FOR
CHILDREN, AND FACILITIES FOR SUCH GAMES AS HORSESHOE PITCHING, BOWLING
AND BASEBALL. 

THE APPELLANT, ONE OF JEHOVAH'S WITNESSES, CONTENDS, AND THE COURT
HOLDS, THAT WITHOUT THE PERMISSION REQUIRED BY CITY ORDINANCE HE MAY
SET UP A SOUND TRUCK SO AS TO FLOOD THIS AREA WITH AMPLIFIED LECTURES
ON RELIGIOUS SUBJECTS.  IT MUST BE REMEMBERED THAT HE DEMANDS EVEN MORE
THAN THE RIGHT TO SPEAK AND HOLD A MEETING IN THIS AREA WHICH IS
RESERVED FOR OTHER AND QUITE INCONSISTENT PURPOSES.  HE LOCATED HIS
CAR, ON WHICH LOUD-SPEAKERS WERE MOUNTED, EITHER IN THE PARK ITSELF,
NOT OPEN TO VEHICLES, OR IN THE STREET CLOSE BY.  THE MICROPHONE FOR
THE SPEAKER WAS LOCATED SOME LITTLE DISTANCE FROM THE CAR AND IN THE
PARK, AND ELECTRIC WIRES WERE STRUNG, IN ONE OR MORE INSTANCES
APPARENTLY ACROSS THE SIDEWALK, FROM THE ONE TO THE OTHER.  SO THAT
WHAT THE COURT IS HOLDING, IS THAT THE CONSTITUTION OF THE UNITED
STATES FORBIDS A CITY TO REQUIRE A PERMIT FOR A PRIVATE PERSON TO
ERECT, IN ITS STREETS, PARKS AND PUBLIC PLACES, A TEMPORARY PUBLIC
ADDRESS SYSTEM, WHICH CERTAINLY HAS POTENTIALITIES OF ANNOYANCE AND
EVEN INJURY TO PARK PATRONS IF CARELESSLY HANDLED.  IT WAS FOR SETTING
UP THIS SYSTEM OF MICROPHONE, WIRES AND SOUND TRUCK WITHOUT A PERMIT,
THAT THIS APPELLANT WAS CONVICTED - IT WAS NOT FOR SPEAKING. 

IT IS ASTONISHING NEWS TO ME IF THE CONSTITUTION PROHIBITS A
MUNICIPALITY FROM POLICING, CONTROLLING OR FORBIDDING ERECTION OF SUCH
EQUIPMENT BY A PRIVATE PARTY IN A PUBLIC PARK.  CERTAINLY PRECAUTIONS
AGAINST ANNOYANCE OR INJURY FROM OPERATION OF SUCH DEVICES ARE NOT ONLY
APPROPRIATE, BUT I SHOULD THINK A DUTY OF THE CITY IN SUPERVISING SUCH
PUBLIC PREMISES.  AND A VERY APPROPRIATE MEANS TO SUPERVISION IS A
PERMIT WHICH WILL INFORM THE CITY'S POLICE OFFICERS OF THE TIME AND
PLACE WHEN SUCH APPARATUS IS TO BE INSTALLED IN THE PARK.  I THINK IT
IS A STARTLING PERVERSION OF THE CONSTITUTION TO SAY THAT IT WRESTS
AWAY FROM THE STATES AND THEIR SUBDIVISIONS ALL CONTROL OF THE PUBLIC
PROPERTY SO THAT THEY CANNOT REGULATE OR PROHIBIT THE IRRESPONSIBLE
INTRODUCTION OF CONTRIVANCES OF THIS SORT INTO PUBLIC PLACES. 

THE COURT, HOWEVER, IGNORES THE ASPECTS OF THE MATTER THAT GROW OUT
OF SETTING UP THE SYSTEM OF AMPLIFYING APPLIANCES, WIRES AND
MICROPHONES ON PUBLIC PROPERTY, WHICH DISTINGUISH IT FROM THE CASES
CITED AS AUTHORITY.  IT TREATS THE ISSUE ONLY AS ONE OF FREE SPEECH. 
TO MY MIND THIS IS NOT A FREE SPEECH ISSUE.  FN1  LOCKPORT HAS IN NO
WAY DENIED OR RESTRICTED THE FREE USE, EVEN IN ITS PARK, OF ALL OF THE
FACILITIES FOR SPEECH WITH WHICH NATURE HAS ENDOWED THE APPELLANT.  IT
HAS NOT EVEN INTERFERED WITH HIS INVITING AN ASSEMBLAGE IN A PARK SPACE
NOT SET ASIDE FOR THAT PURPOSE.  FN2  BUT CAN IT BE THAT SOCIETY HAS NO
CONTROL OF APPARATUS WHICH, WHEN PUT TO UNREGULATED PROSELYTING,
PROPAGANDA AND COMMERCIAL USES, CAN RENDER LIFE UNBEARABLE?  IT IS
INTIMATED THAT THE CITY CAN CONTROL THE DECIBELS; IF SO, WHY MAY IT NOT
PRESCRIBE ZERO DECIBELS AS APPROPRIATE TO SOME PLACES?  IT SEEMS TO ME
THAT SOCIETY HAS THE RIGHT TO CONTROL, AS TO PLACE, TIME AND VOLUME,
THE USE OF LOUD-SPEAKING DEVICES FOR ANY PURPOSE, PROVIDED ITS
REGULATIONS ARE NOT UNDULY ARBITRARY, CAPRICIOUS OR DISCRIMINATORY. 

BUT THE COURT POINTS OUT THAT PROPAGATION OF HIS RELIGION IS THE
AVOWED AND ONLY PURPOSE OF APPELLANT AND HOLDS THAT LOCKPORT CANNOT
STOP THE USE OF LOUD-SPEAKER SYSTEMS ON ITS PUBLIC PROPERTY FOR THAT
PURPOSE.  IF IT IS TO BE TREATED AS A CASE MERELY OF RELIGIOUS
TEACHING, I STILL COULD NOT AGREE WITH THE DECISION.  ONLY A FEW WEEKS
AGO WE HELD THAT THE CONSTITUTION PROHIBITS A STATE OR MUNICIPALITY
FROM USING TAX-SUPPORTED PROPERTY "TO AID RELIGIOUS GROUPS TO SPREAD
THEIR FAITH."  MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203.  TODAY WE
SAY IT COMPELS THEM TO LET IT BE USED FOR THAT PURPOSE.  IN THE ONE
CASE THE PUBLIC PROPERTY WAS APPROPRIATED TO SCHOOL USES; TODAY IT IS
PUBLIC PROPERTY APPROPRIATED AND EQUIPPED FOR RECREATIONAL PURPOSES.  I
THINK LOCKPORT HAD THE RIGHT TO ALLOCATE ITS PUBLIC PROPERTY TO THOSE
PURPOSES AND TO KEEP OUT OF IT INSTALLATIONS OF DEVICES WHICH WOULD
FLOOD THE AREA WITH RELIGIOUS APPEALS OBNOXIOUS TO MANY AND THEREBY
DEPRIVE THE PUBLIC OF THE ENJOYMENT OF THE PROPERTY FOR THE PURPOSES
FOR WHICH IT WAS PROPERLY SET ASIDE.  AND I CANNOT SEE HOW WE CAN READ
THE CONSTITUTION ONE DAY TO FORBID AND THE NEXT DAY TO COMPEL USE OF
PUBLIC TAX-SUPPORTED PROPERTY TO HELP A RELIGIOUS SECT SPREAD ITS
FAITH. 

THERE IS NOT THE SLIGHTEST EVIDENCE OF DISCRIMINATION OR PREJUDICE
AGAINST THE APPELLANT BECAUSE OF HIS RELIGION OR HIS IDEAS.  THIS SAME
APPELLANT, NOT A RESIDENT OF LOCKPORT BUT OF BUFFALO, BY THE WAY, WAS
GRANTED A PERMIT BY THE CHIEF OF POLICE AND USED THIS PARK FOR FOUR
SUCCESSIVE SUNDAYS DURING THE SAME SUMMER IN QUESTION.  WHAT HAS BEEN
REFUSED IS HIS APPLICATION FOR A SECOND SERIES OF FOUR MORE USES OF THE
PARK.  LOCKPORT IS IN A CLIMATE WHICH HAS ONLY ABOUT THREE MONTHS OF
WEATHER ADAPTABLE FOR PARK USE.  THERE ARE 256 RECOGNIZED RELIGIOUS
DENOMINATIONS IN THE UNITED STATES AND, EVEN IF THE LOCKPORT POPULACE
SUPPORTS ONLY A FEW OF THESE, IT IS APPARENT THAT JEHOVAH'S WITNESSES
WERE GRANTED MORE THAN THEIR SHARE OF THE SUNDAY TIME AVAILABLE ON ANY
FAIR ALLOCATION OF IT AMONG DENOMINATIONS. 

THERE IS NO EVIDENCE THAT ANY OTHER DENOMINATION HAS EVER BEEN
PERMITTED TO HOLD MEETINGS OR, FOR THAT MATTER, HAS EVER SOUGHT TO HOLD
THEM IN THE RECREATION AREA.  IT APPEARS THAT ON ONE OF THE SUNDAYS IN
QUESTION THE LUTHERANS WERE USING THE BALL PARK.  THIS ALSO APPEARS TO
BE PUBLIC PROPERTY.  IT IS EQUIPPED WITH INSTALLED LOUD-SPEAKERS, A
GRANDSTAND AND BLEACHERS, AND SURROUNDED BY A FENCE SIX FEET HIGH. 
THERE IS NO INDICATION THAT THESE FACILITIES WOULD NOT BE GRANTED TO
JEHOVAH'S WITNESSES ON THE SAME TERMS AS TO THE LUTHERANS.  IT IS
EVIDENT, HOWEVER, THAT JEHOVAH'S WITNESSES DID NOT WANT AN ENCLOSED
SPOT TO WHICH THOSE WHO WANTED TO HEAR THEIR MESSAGE COULD RESORT. 
APPELLANT WANTED TO THRUST THEIR MESSAGE UPON PEOPLE WHO WERE IN THE
PARK FOR RECREATION, A TYPE OF CONDUCT WHICH INVADES OTHER PERSONS'
PRIVACY AND, IF IT HAS NO OTHER CONTROL, MAY LEAD TO RIOTS AND
DISORDER. 

THE COURT EXPRESSES GREAT CONCERN LEST THE LOUD-SPEAKERS OF POLITICAL
CANDIDATES BE CONTROLLED IF JEHOVAH'S WITNESSES CAN BE.  THAT DOES NOT
WORRY ME.  EVEN POLITICAL CANDIDATES OUGHT NOT TO BE ALLOWED
IRRESPONSIBLY TO SET UP SOUND EQUIPMENT IN ALL SORTS OF PUBLIC PLACES,
AND FEW OF THEM WOULD REGARD IT AS TACTFUL CAMPAIGNING TO THRUST
THEMSELVES UPON PICNICKING FAMILIES WHO DO NOT WANT TO HEAR THEIR
MESSAGE.  I THINK THE COURT IS OVERCONCERNED ABOUT DANGER TO POLITICAL
CANDIDACIES AND I WOULD DEAL WITH THAT PROBLEM WHEN, AND IF, IT
ARISES. 

BUT IT IS SAID THE STATE OR MUNICIPALITY MAY NOT DELEGATE SUCH
AUTHORITY TO A CHIEF OF POLICE.  I AM UNABLE TO SEE WHY A STATE OR CITY
MAY NOT JUDGE FOR ITSELF WHETHER A POLICE CHIEF IS THE APPROPRIATE
AUTHORITY TO CONTROL PERMITS FOR SETTING UP SOUND-AMPLIFYING
APPARATUS.  COX V. NEW HAMPSHIRE, 312 U.S. 569.  IT ALSO IS SUGGESTED
THAT THE CITY FATHERS HAVE NOT GIVEN SUFFICIENT GUIDANCE TO HIS
DISCRETION.  BUT I DID NOT SUPPOSE OUR FUNCTION WAS THAT OF A COUNCIL
OF REVISION.  THE ISSUE BEFORE US IS WHETHER WHAT HAS BEEN DONE HAS
DEPRIVED THIS APPELLANT OF A CONSTITUTIONAL RIGHT.  IT IS THE LAW AS
APPLIED THAT WE REVIEW, NOT THE ABSTRACT, ACADEMIC QUESTIONS WHICH IT
MIGHT RAISE IN SOME MORE DOUBTFUL CASE. 

I DISAGREE ENTIRELY WITH THE IDEA THAT "COURTS MUST BALANCE THE
VARIOUS COMMUNITY INTERESTS IN PASSING ON THE CONSTITUTIONALITY OF
LOCAL REGULATIONS OF THE CHARACTER INVOLVED HERE."  IT IS FOR THE LOCAL
COMMUNITIES TO BALANCE THEIR OWN INTERESTS - THAT IS POLITICS - AND
WHAT COURTS SHOULD KEEP OUT OF.  OUR ONLY FUNCTION IS TO APPLY
CONSTITUTIONAL LIMITATIONS. 

I CAN ONLY REPEAT THE WORDS OF MR. JUSTICE HOLMES, DISREGARDED IN HIS
TIME AND EVEN LESS HEEDED NOW: 

"I HAVE NOT YET ADEQUATELY EXPRESSED THE MORE THAN ANXIETY THAT I
FEEL AT THE EVER INCREASING SCOPE GIVEN TO THE FOURTEENTH AMENDMENT IN
CUTTING DOWN WHAT I BELIEVE TO BE THE CONSTITUTIONAL RIGHTS OF THE
STATES.  AS THE DECISIONS NOW STAND, I SEE HARDLY ANY LIMIT BUT THE SKY
TO THE INVALIDATING OF THOSE RIGHTS IF THEY HAPPEN TO STRIKE A MAJORITY
OF THIS COURT AS FOR ANY REASON UNDESIRABLE.  I CANNOT BELIEVE THAT THE
AMENDMENT WAS INTENDED TO GIVE US CARTE BLANCHE TO EMBODY OUR ECONOMIC
OR MORAL BELIEFS IN ITS PROHIBITIONS."  FN3 

AND EVEN IF THIS WERE A CIVIL LIBERTIES CASE, I SHOULD AGREE WITH
CHIEF JUSTICE HUGHES, WRITING FOR A UNANIMOUS COURT: 

"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."  FN4 

THE JUDGMENT OF THE COURT OF APPEALS OF NEW YORK SHOULD BE AFFIRMED. 

FN1  MORE THAN FIFTY YEARS AGO THIS COURT IN DAVIS V. MASSACHUSETTS,
167 U.S. 43, AFFIRMED A STATE COURT DECISION (162 MASS. 510) WRITTEN BY
MR. JUSTICE HOLMES AND HOLDING CONSTITUTIONAL AN ORDINANCE PROVIDING
THAT "NO PERSON SHALL, IN OR UPON ANY OF THE PUBLIC GROUNDS, MAKE ANY
PUBLIC ADDRESS  ...  EXCEPT IN ACCORDANCE WITH A PERMIT FROM THE
MAYOR."  MR. JUSTICE HOLMES HAD POINTED OUT THAT THE ATTACK ON THE
ORDINANCE'S CONSTITUTIONALITY "ASSUMES THAT THE ORDINANCE IS DIRECTED
AGAINST FREE SPEECH GENERALLY,  ...  WHEREAS IN FACT IT IS DIRECTED
TOWARD THE MODES IN WHICH BOSTON COMMON MAY BE USED."  THAT CASE,
DIRECTLY IN POINT HERE, AND APPROVING A REGULATION OF THE RIGHT OF
SPEECH ITSELF, CERTAINLY CONTROLS THIS ONE, WHICH INVOLVES ONLY
REGULATION OF THE USE OF AMPLIFYING DEVICES, AND, AS APPLIED TO THIS
APPELLANT, FORBADE ONLY UNAUTHORIZED USE IN A PARK DEDICATED
EXCLUSIVELY TO PARK PURPOSES.  MOREOVER, THE DAVIS CASE APPROVED THE
REQUIREMENT THAT A PERMIT BE OBTAINED FROM A CITY OFFICIAL BEFORE "ANY
PUBLIC ADDRESS" COULD BE MADE "IN OR UPON ANY OF THE PUBLIC GROUNDS." 

THE DAVIS CASE WAS NOT OVERRULED IN THE CASES CITED BY THE COURT. 
AND ALL OF THOSE CASES WERE CONSIDERED AND DISTINGUISHED IN COX V. NEW
HAMPSHIRE, 312 U.S. 569, WRITTEN BY MR. CHIEF JUSTICE HUGHES FOR A
UNANIMOUS COURT, AND WHICH APPROVED REGULATION AND LICENSING OF PARADES
AND PROCESSIONS IN PUBLIC STREETS EVEN FOR ADMITTEDLY RELIGIOUS
PURPOSES.    THE CASE OF HAGUE V. C.I.O., 307 U.S. 496, CANNOT PROPERLY
BE QUOTED IN THIS CONNECTION, FOR NO OPINION THEREIN WAS ADHERED TO BY
A MAJORITY OF THE COURT.  THE QUOTATION IN THE COURT'S OPINION TODAY
HAD THE SUPPORT OF ONLY TWO JUSTICES, WITH A POSSIBLE THIRD.  THE
FAILURE OF SIX OR SEVEN JUSTICES TO SUBSCRIBE TO THOSE VIEWS WOULD SEEM
TO FATALLY IMPAIR THE STANDING OF THAT QUOTATION AS AN AUTHORITY. 

FN2  NOTHING IN THE ORDINANCE INTERFERES WITH FREEDOM OF RELIGION,
FREEDOM OF ASSEMBLY OR FREEDOM OF THE PRESS.  INDEED, THE EFFECT OF
SEC. 3, WHICH THE COURT SUMMARILY STRIKES DOWN AS VOID ON ITS FACE, IS
TO AUTHORIZE THE CHIEF OF POLICE TO PERMIT USE OF "RADIO DEVICES,
MECHANICAL DEVICES, OR LOUD SPEAKERS" WHERE THE SUBJECT MATTER IS "NEWS
AND MATTERS OF PUBLIC CONCERN AND ATHLETIC ACTIVITIES," EVEN THOUGH
"THE SOUND THEREFROM IS CAST DIRECTLY UPON THE STREETS AND PUBLIC
PLACES" AND "THE SOUNDS COMING THEREFROM CAN BE HEARD TO THE ANNOYANCE
OR INCONVENIENCE OF THE TRAVELERS UPON ANY STREET OR PUBLIC PLACES OR
OF PERSONS IN NEIGHBORING PREMISES," WHICH WOULD, WITHOUT SEC. 3, BE
BARRED BY SEC. 2. 

FN3  BALDWIN V. MISSOURI, 281 U.S. 586, 595. 

FN4  COX V. NEW HAMPSHIRE, 312 U.S. 569, 574. 
..END :
























UNITED STATES V. NAT. CITY LINES, 334 U.S. 573 


NO. 544.  ARGUED APRIL 28, 1948.  - DECIDED JUNE 7, 1948.  - 7 F.R.D.
456, REVERSED. 


1.  WHERE A CIVIL PROCEEDING AGAINST A CORPORATION UNDER THE ANTITRUST
LAWS IS BROUGHT IN ANY FEDERAL JUDICIAL DISTRICT OF THOSE WHEREIN SUCH
A SUIT IS AUTHORIZED TO BE BROUGHT BY SEC. 12 OF THE CLAYTON ACT, THE
FEDERAL DISTRICT COURT IS WITHOUT POWER TO DECLINE TO EXERCISE ITS
JURISDICTION BY APPLYING THE DOCTRINE OF FORUM NON CONVENIENS.  PP. 574
597. 

2.  THE LEGISLATIVE HISTORY OF SEC. 12 OF THE CLAYTON ACT CLEARLY
ESTABLISHES THAT CONGRESS INTENDED TO LEAVE NO ROOM FOR JUDICIAL
DISCRETION TO APPLY THE DOCTRINE OF FORUM NON CONVENIENS TO DEPRIVE THE
PLAINTIFF OF THE CHOICE OF FORUM GIVEN BY THE SECTION.  PP. 582-588. 

3.  IT BEING CLEAR THAT THE PURPOSE OF CONGRESS WAS TO CONFER UPON
THE PLAINTIFF IN CIVIL ANTITRUST PROCEEDINGS AGAINST CORPORATIONS THE
RIGHT OF CHOICE AMONG THE SPECIFIED VENUES, CONSIDERATIONS OF POLICY
WHICH MIGHT OTHERWISE JUSTIFY THE EXERCISE OF JUDICIAL DISCRETION IN
THE MATTER BECOME IRRELEVANT.  PP. 588-589. 

4.  THE FACT THAT, PURSUANT TO RULE 21(B) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, A CRIMINAL PROSECUTION UNDER THE ANTITRUST LAWS
AGAINST THE SAME CORPORATE DEFENDANTS HAS BEEN TRANSFERRED TO ANOTHER
DISTRICT FROM THAT IN WHICH THE CIVIL PROCEEDING WAS BROUGHT, DOES NOT
JUSTIFY DISMISSAL OF THE CIVIL PROCEEDING BY APPLYING THE DOCTRINE OF
FORUM NON CONVENIENS.  PP. 593-596. 

5.  WHEN CONGRESS HAS VESTED COURTS WITH JURISDICTION TO HEAR AND
DETERMINE CAUSES AND HAS GIVEN COMPLAINING LITIGANTS THE RIGHT OF
CHOICE AMONG THEM, INCONSISTENT WITH THE EXERCISE OF DISCRETIONARY
JUDICIAL POWER TO DEFEAT THE CHOICE MADE, THE DOCTRINE OF FORUM NON
CONVENIENS CAN HAVE NO EFFECT.  PP. 596-597. 

6.  WHETHER A STATUTE HAS CONFERRED UPON A PLAINTIFF A RIGHT OF
CHOICE OF VENUE IS TO BE DECIDED, UPON CONSIDERATION OF ALL THE
RELEVANT MATERIALS, BY WHETHER THE LEGISLATIVE PURPOSE AND THE EFFECT
OF THE LANGUAGE USED TO ACHIEVE IT WERE TO VEST THE POWER OF CHOICE IN
THE PLAINTIFF OR TO CONFER POWER UPON THE COURTS TO QUALIFY HIS
SELECTION.  P. 597. 

UNITED STATES V. NATIONAL CITY LINES, INC. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

THE UNITED STATES BROUGHT A CIVIL PROCEEDING AGAINST CORPORATE
DEFENDANTS TO ENJOIN ALLEGED VIOLATIONS OF THE ANTITRUST LAWS.  THE
DISTRICT COURT DISMISSED THE COMPLAINT UPON THE GROUND OF FORUM NON
CONVENIENS.  7 F.R.D. 456.  A DIRECT APPEAL WAS TAKEN TO THIS COURT
UNDER THE EXPEDITING ACT.  REVERSED, P. 597. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

IN UNITED STATES V. SCOPHONY CORP., 333 U.S. 795, WE RECENTLY
CONSIDERED THE MEANING AND EFFECT OF SEC. 12 OF THE CLAYTON ACT,  FN1
PROVIDING FOR VENUE AND SERVICE OF PROCESS IN CIVIL ANTITRUST
PROCEEDINGS AGAINST PRIVATE CORPORATIONS.  THIS CASE BRINGS BEFORE US
ANOTHER PHASE OF THE SECTION'S EFFECT IN LIKE PROCEEDINGS.  THE
PRINCIPAL QUESTION, AND THE ONLY ONE WE FIND IT NECESSARY TO CONSIDER,
IS WHETHER THE CHOICE OF FORUMS GIVEN TO THE PLAINTIFF BY SEC. 12 IS
SUBJECT TO QUALIFICATION BY JUDICIAL APPLICATION OF THE DOCTRINE OF
FORUM NON CONVENIENS. 

THE SUIT WAS BROUGHT BY THE UNITED STATES AGAINST NINE CORPORATIONS
FN2  FOR ALLEGED VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN ACT.  26
STAT. 209, 15 U.S.C. SECS. 1, 2.  THE BASIC CHARGE IS THAT THE
APPELLEES CONSPIRED TO ACQUIRE CONTROL OF LOCAL TRANSPORTATION
COMPANIES IN NUMEROUS CITIES LOCATED IN WIDELY DIFFERENT PARTS OF THE
UNITED STATES,  FN3  AND TO RESTRAIN AND MONOPOLIZE INTERSTATE COMMERCE
IN MOTORBUSSES, PETROLEUM SUPPLIES, TIRES AND TUBES SOLD TO THOSE
COMPANIES, CONTRARY TO THE ACT'S PROHIBITIONS N4.  INJUNCTIVE AND OTHER
RELIEF OF AN EQUITABLE NATURE WAS SOUGHT.  FN5 

THE APPELLEES FILED VARIOUS MOTIONS, INCLUDING THE ONE INVOLVED IN
THIS APPEAL.  IT SOUGHT DISMISSAL OF THE COMPLAINT ON THE GROUND THAT
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA WAS NOT A
CONVENIENT FORUM FOR THE TRIAL.  THIS MOTION WAS SUPPORTED BY A SHOWING
NOT ONLY OF INCONVENIENCE TO THE DEFENDANTS OF TRIAL IN THE CALIFORNIA
DISTRICT, BUT ALSO THAT THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION (CHICAGO), WOULD BE THE MOST CONVENIENT
FORUM FOR THEM.  THE SHOWING WAS BY AFFIDAVITS, EXECUTED BY OFFICERS,
ATTORNEYS AND EMPLOYEES OF THE CORPORATE DEFENDANTS.  FN6
COUNTERAFFIDAVITS WERE FILED IN OPPOSITION ON BEHALF OF THE
GOVERNMENT.  FN7 

AFTER ORAL ARGUMENT, THE DISTRICT COURT FILED FINDINGS OF FACT AND
CONCLUSIONS OF LAW TOGETHER WITH A WRITTEN OPINION, SUBSTANTIALLY
ACCEPTING APPELLEES' SHOWING AND SUSTAINING THE MOTION.  7 F.R.D. 456. 
ACCORDINGLY IT ENTERED JUDGMENT DISMISSING THE COMPLAINT, BUT WITHOUT
PREJUDICE TO THE INSTITUTION OF A SIMILAR SUIT AGAINST THE NAMED
DEFENDANTS "IN A MORE APPROPRIATE AND CONVENIENT FORUM."  THIS DECISION
IS BROUGHT TO US FOR REVIEW ON DIRECT APPEAL PURSUANT TO THE STATUTES
APPLICABLE IN SUCH CASES.  FN8 

IT IS NOT DISPUTED THAT THE DISTRICT COURT HAS JURISDICTION IN THE
BASIC SENSE OF POWER TO HEAR AND DETERMINE THE CAUSE OR THAT IT HAS
VENUE WITHIN THE PROVISIONS OF SEC. 12.  FN9  NOR CAN IT BE QUESTIONED
THAT ANY OF THE DEFENDANTS CAN BE BROUGHT PERSONALLY WITHIN THAT
COURT'S JURISDICTION BY SERVICE OF PROCESS MADE IN ACCORDANCE WITH THE
PROVISIONS OF EITHER SEC. 12, OR THOSE OF SEC. 5 OF THE SHERMAN ACT. 
FN10  THE ONLY QUESTION PRESENTED CONCERNING THE COURT'S POWER IS
WHETHER, HAVING JURISDICTION AND VENUE OF THE CAUSE AND PERSONAL
JURISDICTION OF THE DEFENDANTS, THE COURT ALSO WAS AUTHORIZED TO
DECLINE TO EXERCISE ITS JURISDICTION UPON FINDING, WITHOUT ABUSE OF
DISCRETION, THAT THE FORUM WAS NOT A CONVENIENT ONE WITHIN THE SCOPE OF
THE NON-STATUTORY DOCTRINE COMMONLY, THOUGH NOT TOO ACCURATELY, LABELED
FORUM NON CONVENIENS. 

IT WOULD SERVE NO USEFUL PURPOSE TO REVIEW IN DETAIL THE REASONING OR
THE AUTHORITIES UPON WHICH THE DISTRICT COURT RULED THE DOCTRINE
APPLICABLE IN SUCH CASES AS THIS, OR THEREFORE THE FURTHER GROUNDINGS
UPON WHICH IT PROCEEDED IN HOLDING THE FORUM INCONVENIENT.  FOR THE
VIEW HAS PREVAILED WITHOUT QUALIFICATION DURING THE LIFE OF SEC. 12,
THIRTY-FOUR YEARS, THAT THE CHOICE OF VENUES EXPRESSLY GIVEN TO THE
PLAINTIFF IS NOT TO BE QUALIFIED BY ANY POWER OF A COURT HAVING VENUE
UNDER ANY OF THE SECTION'S ALTERNATIVES TO DECLINE TO EXERCISE THE
JURISDICTION CONFERRED.  NONE OF THE DECISIONS ON WHICH THE DISTRICT
COURT RELIED SUGGESTED, MUCH LESS DECIDED, THAT SUCH A POWER EXISTS. 
THIS THEREFORE IS A CASE OF FIRST IMPRESSION, SEEKING DEPARTURE FROM
LONG-ESTABLISHED PRACTICE.  MOREOVER, THE ANALOGIES DRAWN FROM OTHER
TYPES OF CASES IN WHICH THE DOCTRINE HAS BEEN APPLIED  FN11  CANNOT
SURVIVE IN THE FACE OF THE SECTION'S EXPLICIT TERMS AND THE PATENT
INTENT OF CONGRESS IN ENACTING IT. 

IN THE SCOPHONY CASE WE GAVE ATTENTION TO THE HISTORY OF SEC. 12,
WHICH AS THERE RELATED IS AS PERTINENT TO THE QUESTION NOW PRESENTED AS
IT WAS TO THE ISSUES THEN UNDER CONSIDERATION.  FN12 REFERENCE TO THE
SCOPHONY OPINION, PART I, 333 U.S. AT 802-810, WILL AVOID THE NECESSITY
FOR REPEATING THE HISTORY HERE IN EXTENSO.  BUT ITS PRESENT
APPLICABILITY WILL BE ACCENTUATED BY RECALLING THAT WE REAFFIRMED THE
RULING IN EASTMAN CO. V. SOUTHERN PHOTO CO., 273 U.S. 359, NAMELY, THAT
SEC. 12 OF THE CLAYTON ACT HAD ENLARGED THE VENUE PROVISION OF SEC. 7
OF THE SHERMAN ACT, WITH THE INTENT AND EFFECT TO GIVE THE PLAINTIFF
THE RIGHT TO BRING ANTITRUST PROCEEDINGS NOT ONLY IN THE DISTRICTS
WHERE THE CORPORATE DEFENDANT "RESIDES OR IS FOUND," AS SEC. 7 HAD
AUTHORIZED, BUT ALSO "IN ANY DISTRICT WHEREIN IT  ...  TRANSACTS
BUSINESS."  FN13 

IN THE EASTMAN CASE, AS THE SCOPHONY OPINION EMPHASIZED, THE COURT
HAD REJECTED THE ARGUMENT THAT THE ADDITION OF "OR TRANSACTS BUSINESS"
WAS NO MORE THAN A REDUNDANT REFORMULATION OF "IS FOUND"; INSTEAD IT
GAVE THE ADDED WORDS BROADER AND LESS TECHNICAL MEANING THAN "IS FOUND"
HAD ACQUIRED UNDER PRIOR DECISIONS.  FN14  THIS WAS DONE, AS THE
EASTMAN OPINION STATED, BECAUSE ACCEPTING THE CONTRARY VIEW WOULD HAVE
RENDERED THE ADDITION MEANINGLESS AND DEFEATED THE PLAIN REMEDIAL
PURPOSE OF SEC. 12.  273 U.S. AT 373.  THAT SECTION, THE COURT HELD,
SUPPLEMENTED "THE REMEDIAL PROVISION OF THE ANTI-TRUST ACT FOR THE
REDRESS OF INJURIES RESULTING FROM ILLEGAL RESTRAINTS UPON INTERSTATE
TRADE, BY RELIEVING THE INJURED PERSON FROM THE NECESSITY OF RESORTING
FOR THE REDRESS OF WRONGS COMMITTED BY A NON-RESIDENT CORPORATION, TO A
DISTRICT, HOWEVER DISTANT, IN WHICH IT RESIDES OR MAY BE 'FOUND' -
OFTEN AN INSUPERABLE OBSTACLE - AND ENABLING HIM TO INSTITUTE THE SUIT
IN A DISTRICT, FREQUENTLY THAT OF HIS OWN RESIDENCE, IN WHICH THE
CORPORATION IN FACT TRANSACTS BUSINESS, AND BRING IT BEFORE THE COURT
BY THE SERVICE OF PROCESS IN A DISTRICT IN WHICH IT RESIDES OR MAY BE
'FOUND.'"  273 U.S. AT 373-374. 

THE SCOPHONY OPINION REAFFIRMED THIS VIEW:  "THUS, BY SUBSTITUTING
PRACTICAL, BUSINESS CONCEPTIONS FOR THE PREVIOUS HAIR-SPLITTING LEGAL
TECHNICALITIES ENCRUSTED UPON THE 'FOUND'-'PRESENT'-'CARRYING-ON
BUSINESS' SEQUENCE, THE COURT YIELDED TO AND MADE EFFECTIVE CONGRESS'
REMEDIAL PURPOSE.  THEREBY IT RELIEVED PERSONS INJURED THROUGH
CORPORATE VIOLATIONS OF THE ANTITRUST LAWS FROM THE 'OFTEN INSUPERABLE
OBSTACLE' OF RESORTING TO DISTANT FORUMS FOR REDRESS OF WRONGS DONE IN
THE PLACES OF THEIR BUSINESS OR RESIDENCE.  A FOREIGN CORPORATION NO
LONGER COULD COME TO A DISTRICT, PERPETRATE THERE THE INJURIES
OUTLAWED, AND THEN BY RETREATING OR EVEN WITHOUT RETREATING TO ITS
HEADQUARTERS DEFEAT OR DELAY THE RETRIBUTION DUE."  333 U.S. AT 808. 

THESE CONCLUSIONS CONCERNING THE SECTION'S INTENT AND EFFECT ARE
ALTOGETHER INCONSISTENT WITH ANY IDEA THAT THE DEFENDANT CORPORATION
CAN DEFEAT THE PLAINTIFF'S CHOICE OF VENUE AS GIVEN, BY ASKING FOR AND
SECURING DISMISSAL OF THE SUIT, EITHER ON THE GROUND THAT THE VENUE
SELECTED WITHIN THE STATUTORY LIMITS IS INCONVENIENT FOR THE DEFENDANT
OR THAT ANOTHER AUTHORIZED VENUE IS MORE CONVENIENT FOR IT. 

NO SUCH DISCRETIONARY POWER HAD BEEN EXERCISED BY ANY COURT DURING
THE TWENTY YEARS OF THE SHERMAN ACT'S APPLICATION PRIOR TO THE
ENACTMENT OF SEC. 12, UNDER THE NARROWER RANGE OF CHOICE AFFORDED BY
SEC. 7.  NONE HAD BEEN SUGGESTED, AND UNIFORM PRACTICE HAD ESTABLISHED
THAT THE PLAINTIFF'S CHOICE WAS CONCLUSIVE, AS WAS TRUE LATER UNDER
SEC. 12 UNTIL THE DEVIATION IN THIS CASE. 

WHEN THEREFORE CONGRESS CAME TO FACE THE PROBLEM OF MAKING THE
NATION'S ANTITRUST POLICY MORE EFFECTIVE THROUGH THE CLAYTON ACT'S
PROVISIONS, THAT BODY WAS NOT CONFRONTED WITH ANY PROBLEM OF ABUSE BY
PLAINTIFFS IN SELECTING VENUE FOR ANTITRUST SUITS; NOR WAS IT CONCERNED
WITH ANY QUESTION OF PROVIDING MEANS BY WHICH THE DEFENDANTS IN SUCH
SUITS MIGHT DEFEAT THE PLAINTIFF'S CHOICE TO SERVE THEIR OWN
CONVENIENCE.  CONGRESS' CONCERN WAS QUITE THE OPPOSITE.  IT WAS TO
PROVIDE BROADER AND MORE EFFECTIVE RELIEF, BOTH SUBSTANTIVELY AND
PROCEDURALLY, FOR PERSONS INJURED BY VIOLATIONS OF ITS ANTITRUST
POLICY.  FN15  INSOFAR AS CONVENIENCE IN BRINGING SUIT AND CONDUCTING
TRIAL WAS INVOLVED, THE PURPOSE WAS TO MAKE THESE LESS INCONVENIENT FOR
PLAINTIFFS OR, AS WAS SAID IN THE EASTMAN OPINION, TO REMOVE THE "OFTEN
INSUPERABLE OBSTACLE" THROWN IN THEIR WAY BY THE EXISTING VENUE
RESTRICTIONS. 

TO HAVE BROADENED THE CHOICE OF VENUE FOR THE REASONS WHICH BROUGHT
ABOUT THAT ACTION, ONLY TO HAVE IT NARROWED AGAIN BY APPLICATION OF THE
VAGUE AND DISCRETIONARY POWER  FN16  COMPREHENDED BY FORUM NON
CONVENIENS, WOULD HAVE BEEN INCONGRUOUS, TO SAY THE LEAST.  IN MAKING
THE CHANGE CONGRESS DID NOT AUTHORIZE PLAINTIFFS TO INSTITUTE CIVIL
ANTITRUST SUITS IN THE NEWLY SPECIFIED DISTRICTS, MERELY IN ORDER TO
HAVE THEM TRANSFERRED BACK FOR TRIAL TO ONE OF THE DISTRICTS
COMPREHENDED BY SEC. 7.  IT INTENDED TRIAL TO TAKE PLACE IN THE
DISTRICT SPECIFIED BY THE STATUTE AND SELECTED BY THE PLAINTIFF.  FN17 

THIS CONCLUSION IS SUPPORTED AS STRONGLY BY THE HISTORY OF THE
LEGISLATIVE PROCEEDINGS RELATING TO THE ENACTMENT OF SEC. 12 AS BY THE
FOREGOING JUDICIAL CONSTRUCTIONS.  SECTION 7 OF THE SHERMAN ACT HAD
LIMITED VENUE, AS WE HAVE NOTED, TO DISTRICTS IN WHICH THE DEFENDANT
"RESIDES OR IS FOUND."  AS ORIGINALLY INTRODUCED IN THE HOUSE, TWO
FN18  PERPETUATED THOSE PROVISIONS.  FN19  DURING DISCUSSION ON THE
FLOOR, HOWEVER, VARIOUS REPRESENTATIVES DEMANDED BROADER CHOICE OF
VENUE FOR PLAINTIFFS.  THE DEMAND RELATED TO BOTH SECTIONS, AND THE
DISCUSSION WENT FORWARD NOW WITH REFERENCE TO ONE, NOW THE OTHER, NOW
BOTH. 

THE BASIC AIM OF THE ADVOCATES OF CHANGE WAS TO GIVE THE PLAINTIFF
THE RIGHT TO BRING SUIT AND HAVE IT TRIED IN THE DISTRICT WHERE THE
DEFENDANT HAD COMMITTED VIOLATIONS OF THE ACT AND INFLICTED THE
FORBIDDEN INJURIES.  FN20  AT FIRST THEY WERE NOT MUCH CONCERNED WITH
THE EXACT FORMULATION OF THE LANGUAGE TO ACCOMPLISH THIS, SEVERAL
FORMULAS BEING PROPOSED FROM TIME TO TIME.  FN21  BUT THEY WERE
CONVINCED THAT RESTRICTING THE CHOICE OF VENUE TO DISTRICTS IN WHICH
THE DEFENDANT "RESIDES OR IS FOUND" WAS NOT ADEQUATE TO ASSURE THAT THE
SUIT COULD BE BROUGHT WHERE THE CAUSE OF ACTION AROSE, AND THEREFORE
INSISTED ON CHANGE IN ORDER TO ASSURE THAT RESULT.  FN22 

THE COMMITTEE SPONSORING THE BILL HAD NO OBJECTION TO THIS PURPOSE;
INDEED ITS MEMBERS EXPRESSLY APPROVED IT.  FN23  BUT AT FIRST THEY
OPPOSED ANY AMENDMENT, BECAUSE THEY THOUGHT THE OBJECT FULLY ACHIEVED
BY THE WORDS "IS FOUND."  FN24  OVER THIS DIFFERENCE THE DISCUSSION
WENT FORWARD, AS WELL AS OVER VARIOUS FORMULATIONS OF THE PROPOSED
ADDITION.  SOME WERE BROADER THAN WAS NECESSARY TO ACHIEVE THE PRIMARY
AIM.  FN25  INDEED SOME WERE SO BROAD THAT COMMITTEE MEMBERS THOUGHT
THEIR INCLUSION WOULD JEOPARDIZE PASSAGE OF THE ENTIRE BILL.  FN26 

TO AVOID THIS RESULT AND TO SATISFY THOSE WHO INSISTED ON AMENDMENT,
THE COMMITTEE YIELDED AND PROPOSED A SUBSTITUTE AMENDMENT FOR ONE OF
THOSE OFFERED FROM THE FLOOR RELATING TO SEC. 4.  THE COMMITTEE
SUBSTITUTE ADDED THE WORDS "OR HAS AN AGENT" AFTER "IS FOUND" IN THE
ORIGINAL COMMITTEE VERSION.  51 CONG. REC. 9466.  THIS AMENDMENT PASSED
THE HOUSE AND LATER THE SENATE UNCHANGED.  ID. 9467.  SECTION 4 THUS
BECAME LAW IN ITS PRESENT FORM, FOR THE LIMITED CLASS OF CASES COVERED
BY ITS TERMS.  CF. NOTE 18. 

SINCE HOWEVER THE AMENDMENT AFFECTED ONLY SEC. 4, THE PROBLEM
CONCERNING SEC. 12 REMAINED UNRESOLVED.  SUGGESTIONS THEREFORE WERE
MADE AT ONCE FOR AMENDING SEC. 12 TO BRING IT INTO CONFORMITY WITH SEC.
4.  ID. 9467, 9607.  ALTHOUGH OTHER PROPOSALS WERE AGAIN PUT FORWARD,
ID. 9607, THE CONFORMING AMENDMENT WAS ADOPTED BY THE HOUSE.  IBID. 

AFTER THE BILL PASSED THE HOUSE, IT WAS REFERRED TO THE SENATE
COMMITTEE ON THE JUDICIARY.  THAT COMMITTEE REPORTED IT OUT WITH SEC.
12 ALTERED BY THE SUBSTITUTION OF "OR TRANSACTS BUSINESS" IN PLACE OF
"OR HAS AN AGENT," BUT LEAVING THE LATTER CLAUSE IN SEC. 4 UNTOUCHED. 
FN27  THE SENATE COMMITTEE REPORTS AND THE DEBATES IN THAT BODY THROW
LITTLE LIGHT UPON THE REASONS UNDERLYING THE COMMITTEE'S ALTERATION OF
SEC. 12 AND ITS FAILURE TO ALTER SEC. 4 SO AS TO MAKE THEM UNIFORM,
EXCEPT FOR THE GENERAL STATEMENT THAT SEC. 12 AS REPORTED "CONCERNS THE
VENUE OR THE PLACE WHERE SUITS TO ENFORCE THE ANTITRUST LAWS AGAINST
CORPORATIONS MAY BE BROUGHT AND LIBERALIZES THE SHERMAN LAW TO SOME
EXTENT UPON THIS SUBJECT."  FN28  THE BILL FINALLY PASSED THE SENATE
WITH SEC. 12 SUBSTANTIALLY AS IT WAS REPORTED BY THE COMMITTEE ON THE
JUDICIARY,  FN29  AND WENT TO CONFERENCE IN THAT FORM.  IN CONFERENCE
THE SENATE VERSION OF SEC. 12 PREVAILED OVER THAT OF THE HOUSE, AND THE
BILL WAS SO ENACTED.  FN30    THE SHORT OUTCOME WAS THAT CONGRESS
EXPANDED THE VENUE PROVISIONS OF THE SHERMAN ACT, SEC. 7, IN TWO WAYS,
VIZ:  (1) BY ADDING TO "RESIDES OR IS FOUND," IN SEC. 4 OF THE CLAYTON
ACT, THE WORDS "OR HAS AN AGENT"; (2) IN SEC. 12 BY ADDING "OR
TRANSACTS BUSINESS."  THUS STRICT UNIFORMITY IN THE TWO SECTIONS' VENUE
PROVISIONS WAS NOT ACHIEVED.  BUT WHATEVER THEIR DIFFERENCES MAY BE,
EACH ADDITION WAS DESIGNED TO AID PLAINTIFFS BY GIVING THEM A WIDER
CHOICE OF VENUES, AND THEREBY TO SECURE A MORE EFFECTIVE, BECAUSE MORE
CONVENIENT, ENFORCEMENT OF ANTITRUST PROHIBITIONS. 

MOREOVER THE DISCUSSIONS IN CONGRESS, PARTICULARLY IN THE HOUSE,
DISCLOSE ON OTHER THOUGHT THAN THAT THE CHOICE OF FORUMS WAS GIVEN AS A
MATTER OF RIGHT, NOT AS ONE LIMITED BY JUDICIAL DISCRETION.  THERE WAS,
IN FACT, COMMON AGREEMENT UPON THIS AMONG BOTH THE ADVOCATES AND THE
OPPONENTS OF AMENDMENT.  FN31  NO ONE SUGGESTED THAT THE COURTS WOULD
HAVE DISCRETIONARY POWER TO DECLINE TO EXERCISE THE JURISDICTION
CONFERRED.  BUT SINCE IT WAS UNIVERSALLY AGREED THAT THE CHOICE OF
VENUE, TO WHATEVER EXTENT IT MIGHT BE CONFERRED, WAS TO BE GIVEN AS A
MATTER OF RIGHT, SEVERAL OF THE BROADER AMENDMENTS WERE OPPOSED AND
DEFEATED AS GOING TOO FAR.  FN32 

CONGRESS THEREFORE WAS NOT INDIFFERENT TO POSSIBILITIES OF ABUSE
INVOLVED IN THE VARIOUS PROPOSALS FOR CHANGE.  EXACTLY THE OPPOSITE WAS
TRUE.  FOR THE BROADER PROPOSALS WERE NOT REJECTED BECAUSE THEY GAVE
THE PLAINTIFF THE CHOICE.  THEY WERE REJECTED BECAUSE THE CHOICE GIVEN
WAS TOO WIDE, GIVING PLAINTIFFS THE POWER TO BRING SUIT AND FORCE TRIAL
IN DISTRICTS FAR REMOVED FROM THE PLACES WHERE THE COMPANY WAS
INCORPORATED, HAD ITS HEADQUARTERS, OR CARRIED ON ITS BUSINESS.  IN
ADOPTING SEC. 12 CONGRESS WAS NOT WILLING TO GIVE PLAINTIFFS FREE REIN
TO HAUL DEFENDANTS HITHER AND YOU AT THEIR CAPRICE.  51 CONG. REC.
9466, 9467.  BUT NEITHER WAS IT WILLING TO ALLOW DEFENDANTS TO HAMPER
OR DEFEAT EFFECTIVE ENFORCEMENT BY CLAIMING IMMUNITY TO SUIT IN THE
DISTRICTS WHERE BY A COURSE OF CONDUCT THEY HAD VIOLATED THE ACT WITH
THE RESULTING OUTLAWED CONSEQUENCES.  IN FRAMING SEC. 12 TO INCLUDE
THOSE DISTRICTS AT THE PLAINTIFFS' ELECTION, CONGRESS THUS HAD IN MIND
NOT ONLY THEIR CONVENIENCE BUT ALSO THE DEFENDANT COMPANY'S
INCONVENIENCE, AND FIXED THE LIMITS WITHIN WHICH EACH COULD CLAIM
ADVANTAGE IN VENUE AND BEYOND WHICH NEITHER COULD SEEK IT. MOREOVER, IN
SEC. 12, THOUGH NOT IN SEC. 4, THE RIGHT OF CHOICE CONFERRED WAS GIVEN
DESIGNEDLY TO THE GOVERNMENT AS WELL AS TO PRIVATE SUITORS.  FN33 

IN THE FACE OF THIS HISTORY WE CANNOT SAY THAT ROOM WAS LEFT FOR
JUDICIAL DISCRETION TO APPLY THE DOCTRINE OF FORUM NON CONVENIENS SO AS
TO DEPRIVE THE PLAINTIFF OF THE CHOICE GIVEN BY THE SECTION.  THAT
RESULT, AS OTHER COURTS HAVE CONCLUDED, WOULD BE UTTERLY INCONSISTENT
WITH THE PURPOSE OF CONGRESS IN CONFERRING THE BROADER RANGE OF
CHOICE.  TIVOLI REALTY V. INTERSTATE CIRCUIT, 167 F.2D 155; FERGUSON V.
FORD MOTOR CO., 77 F.SUPP.  425. 

IN THIS VIEW OF CONGRESS' ACTION, NUMEROUS CONSIDERATIONS OF POLICY
URGED BY THE APPELLEES AS SUPPORTING THE DISCRETIONARY POWER'S
EXISTENCE AND APPLICABILITY BECOME IRRELEVANT.  CONGRESS' MANDATE
REGARDING VENUE AND THE EXERCISE OF JURISDICTION IS BINDING UPON THE
FEDERAL COURTS.  CONST. ART. III, SEC. 2.  OUR GENERAL POWER TO
SUPERVISE THE ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS, CF.
MCNABB V. UNITED STATES, 318 U.S. 332, DOES NOT EXTEND TO DISREGARDING
A VALIDLY ENACTED AND APPLICABLE STATUTE OR PERMITTING DEPARTURE FROM
IT, EVEN IN SUCH MATTERS AS VENUE. 

IT IS TRUE THAT THE APPELLEES MADE A STRONG SHOWING OF INCONVENIENCE,
ALBEIT BY INTERESTED PERSONS, WHEN THAT MATTER IS CONSIDERED ON THEIR
PRESENTATION ALONE.  ON THE OTHER HAND, THE GOVERNMENT ADVANCED STRONG
REASONS, APART FROM THE QUESTION OF POWER, FOR NOT APPLYING THE
DOCTRINE.  FN34  BUT IN THE VIEW WE TAKE OF SEC. 12, WE NEED NOT
CONSIDER WHETHER THE APPELLEES' SHOWING ON THE FACTS SUFFICIENTLY
OUTWEIGHED THAT OF THE GOVERNMENT TO JUSTIFY DISMISSAL.  FN35 

TWO IMPORTANT POLICY CONSIDERATIONS WERE ADVANCED BY THE GOVERNMENT,
HOWEVER, WHICH NOT ONLY BEAR STRONGLY UPON THAT QUESTION BUT AFFECT THE
QUESTION OF POWER, IF CONGRESS HAD NOT CONCLUDED IT.  THE FIRST IS THAT
PERMITTING THE APPLICATION OF FORUM NON CONVENIENS TO ANTITRUST CASES
INEVITABLY WOULD LENGTHEN LITIGATION ALREADY OVEREXTENDED IN THE TIME
REQUIRED FOR ITS FINAL DISPOSITION, AND THUS WOULD VIOLATE CONGRESS'
DECLARED POLICY OF EXPEDITING THIS TYPE OF LITIGATION.  FN36 

THE ARGUMENT HAS MERIT TO SUPPORT THE CONCLUSION WE HAVE REACHED UPON
THE STATUTE.  ANTITRUST SUITS, EVEN WITH ALL THE EXPEDITION AFFORDED
THEM, ARE NOTORIOUSLY THOUGH OFTEN PERHAPS UNAVOIDABLY LONG DRAWN OUT. 
THE MORE COMPLEX AND IMPORTANT CASES SELDOM REQUIRE LESS THAN THREE TO
FIVE YEARS TO CONCLUDE,  FN37  EXCEPT POSSIBLY WHERE CONSENT DECREES
ARE ENTERED.  OFTEN THE TIME NECESSARY OR TAKEN IS MUCH LONGER.  TO
INJECT INTO THIS OVERLENGTHENED PROCEDURE WHAT WOULD AMOUNT TO AN
ADDITIONAL PRELIMINARY TRIAL AND REVIEW UPON THE CONVENIENCE OF THE
FORUM COULD NOT BUT ADD APPROXIMATELY ANOTHER YEAR OR LONGER TO THE
TIME ESSENTIAL FOR DISPOSING OF THE CASES, INDEED FOR REACHING THE
MERITS.  FN38  ALTHOUGH SOME INSTANCES OF INCONVENIENCE TO DEFENDANTS
WILL ARISE FROM THE ABSENCE OF DISCRETIONARY POWER, THAT WILL BE
UNAVOIDABLY TRUE IN ALMOST ANY EVENT.  AND IT MAY WELL BE DOUBTED THAT
THE SUM TOTAL OF INCONVENIENCE AND INJUSTICE RESULTING WILL BE AS GREAT
AS WOULD FOLLOW, FOR BOTH PRIVATE PLAINTIFFS AND THE PUBLIC, FROM
ALLOWING THE INESCAPABLE DELAY INCIDENT TO THE EXERCISE OF SUCH A
DISCRETIONARY POWER.  FOR ONCE THE POWER WERE FOUND TO EXIST, IT IS
MORE THAN LIKELY THAT INJECTION OF THE ISSUE WOULD BECOME A COMMON
INCIDENT OF ANTITRUST SUITS, AND CREATE THE DISADVANTAGE OF DELAY FOR
ALL CONCERNED. 

THIS CONSIDERATION IS REINFORCED BY ANOTHER, NAMELY, THE DIFFICULTY
OF APPLYING THE DOCTRINE IN CASES SUCH AS THIS, IN WHICH THE VIOLATIONS
CHARGED ARE NATIONWIDE OR NEARLY SO IN SCOPE AND EFFECT, AND THE
DEFENDANTS ARE NUMEROUS COMPANIES WIDELY SCATTERED IN THE LOCATION OF
THEIR PLACES OF INCORPORATION, PRINCIPAL OFFICES, AND PLACES OF
CARRYING ON BUSINESS AND PARTICIPATING IN THE SCHEME.  IN SUCH A CASE
DISMISSAL IN ONE AUTHORIZED DISTRICT CANNOT REINSTATE OR TRANSFER THE
CAUSE TO ANOTHER.  NOR CAN THE COURT, WITHIN THE LIMITS OF THE
DOCTRINE, SPECIFY THE DISTRICT IN WHICH THE CASE SHALL BE REINSTITUTED
AND TRIED.  IT CAN ONLY TERMINATE THE PENDING PROCEEDING, AS WAS DONE
HERE, WITHOUT PREJUDICE TO COMMENCEMENT OF A LIKE SUIT "IN A MORE
APPROPRIATE OR CONVENIENT FORUM," WITH WHATEVER CONSEQUENCES MAY FOLLOW
FROM HAVING TO BEGIN ALL OVER AGAIN. 

FURTHER, WHEN THAT IS DONE, THE RESULT WELL MAY BE IN SOME INSTANCES
TO HAVE THE ACTION COMMENCED AGAIN, ONLY TO PRECIPITATE THE SAME ISSUE
AND CONSEQUENT DELAY IN THE SECOND FORUM.  CONCEIVABLY THIS COULD OCCUR
FROM FORUM TO FORUM IN SUCCESSION, DEPENDING UPON THE NUMBER OF
CORPORATIONS NAMED AS DEFENDANTS AND THE VARIETY, PROXIMITY, AND DEGREE
OF CONCENTRATION OF THE LOCATIONS OF THEIR PRINCIPAL OFFICES, PLACES OF
BUSINESS, AND THE RELATIVE ADVANTAGES OF OTHER AVAILABLE FORUMS FOR THE
VARIOUSLY SITUATED DEFENDANTS.  ACCORDINGLY, IN AN UNKNOWN NUMBER OF
SUCH CASES THE PRACTICAL RESULT WELL MIGHT BE TO ESTABLISH A MERRY-GO
ROUND OF LITIGATION UPON THE ISSUE, WHICH COULD BE USED TO DEFER
INDEFINITELY CONSIDERATION OF THE MERITS.  THE VERY POSSIBILITY OF SUCH
A TACTIC WOULD GREATLY HAMPER THE INSTITUTION AS WELL AS THE CONCLUSION
OF ANTITRUST PROCEEDINGS.  INDEED, FOR CASES OF THIS COMPLEX TYPE, THE
UNCERTAINTY CONCERNING THE OUTCOME OF AN EFFORT TO APPLY THE DOCTRINE
MIGHT GO FAR TOWARD DEFEATING THE ACT'S EFFECTIVE APPLICATION TO THE
MOST SERIOUS AND WIDESPREAD OFFENSES AND OFFENDERS.  FN39 

FURTHER, EVEN IF IT IS TAKEN THAT THE APPELLEES' ACTIVITIES
CONSTITUTING THE CORE OF THE VIOLATIONS CHARGED WERE AS FULLY
CONCENTRATED IN OR NEAR THE ILLINOIS DISTRICT AS APPELLEES CLAIM, SUCH
A CONCENTRATION MIGHT OR MIGHT NOT EXIST IN OTHER LIKE PROCEEDINGS. 
AND IN THE LATTER EVENT THE PROBLEM OF SELECTING THE APPROPRIATE FORUM
WELL MIGHT BECOME A HIGHLY UNCERTAIN AND DIFFICULT ONE.  FN40 

THE APPELLEES ALSO STRONGLY URGE TWO OTHER CONSIDERATIONS WHICH
DESERVE MENTION.  ONE IS THAT A CRIMINAL PROSECUTION AGAINST THE
APPELLEES (TOGETHER WITH SEVEN INDIVIDUALS, OFFICERS OF SOME OF THEM),
PENDING IN THE CALIFORNIA DISTRICT SIMULTANEOUSLY WITH THIS CAUSE AND
GROWING OUT OF SUBSTANTIALLY THE SAME TRANSACTIONS, HAD BEEN
TRANSFERRED TO THE ILLINOIS DISTRICT SHORTLY BEFORE THE DISTRICT COURT
ENTERED ITS JUDGMENT OF DISMISSAL.  FN41  THE TRANSFER WAS ORDERED
PURSUANT TO RULE 21(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 
FN42  THAT ACTION WAS TAKEN AFTER THE DISTRICT COURT HAD MADE FINDINGS
OF FACT AND CONCLUSIONS OF LAW FOUNDED UPON AND SUBSTANTIALLY ADOPTING
THE APPELLEES' SHOWING, WHICH WAS PRACTICALLY IDENTICAL WITH THEIR
SHOWING IN THIS CASE.  CONSEQUENTLY, AS THE CASES NOW STAND, THE
CRIMINAL CAUSE IS TO BE TRIED IN THE ILLINOIS DISTRICT WHILE THIS CIVIL
SUIT FOUNDED UPON PRACTICALLY THE SAME TRANSACTIONS AND AFFECTING THE
SAME CORPORATE DEFENDANTS IS TO BE TRIED IN THE CALIFORNIA DISTRICT. 

GREAT EMPHASIS IS PLACED UPON THIS AS AN IMPELLING REASON FOR HOLDING
FORUM NON CONVENIENS APPLICABLE HERE, AND THEN SUSTAINING THE ORDER OF
DISMISSAL UNDER THAT DOCTRINE AND THE DISTRICT COURT'S FINDINGS.  BUT,
FOR THE REASONS ABOVE STATED, WE THINK THE MATTER HAS BEEN CONCLUDED BY
THE TERMS AND INTENT OF SEC. 12.  MOREOVER, IT IS AT LEAST DOUBTFUL
WHETHER THE GOVERNMENT HAD A RIGHT TO APPEAL FROM THE ORDER OF TRANSFER
IN THE CRIMINAL CASE.  FN43  IN ANY EVENT, THE VALIDITY OF THAT ORDER
IS NOT BEFORE US.  WE THEREFORE EXPRESS NO OPINION UPON EITHER OF THOSE
QUESTIONS.  BUT THE FACT THAT WE CANNOT DO SO GOES FAR TO NULLIFY THE
EFFECT OF APPELLEE'S ARGUMENT OF HARDSHIP ARISING FROM THE TRANSFER. 
FOR THAT ARGUMENT COMES DOWN, IN THE PECULIAR CIRCUMSTANCES, TO ONE
THAT BECAUSE THE DISTRICT COURT ON APPELLEES' APPLICATION HAS
TRANSFERRED THE CRIMINAL CAUSE BY A DUBIOUSLY REVIEWABLE ORDER,
PERFORCE OF THAT ACTION IT SHOULD ALSO DISMISS THIS CIVIL CAUSE AND WE
SHOULD SUSTAIN THE DISMISSAL. 

IN PRACTICAL EFFECT THE OUTCOME OF ACCEPTING SUCH AN ARGUMENT AS
GROUND FOR SUSTAINING BOTH THE POWER AND THE DISMISSAL WOULD BE TO MAKE
RULE 21(B) CONTROLLING IN CIVIL AS WELL AS CRIMINAL CASES INVOLVING THE
SAME TRANSACTIONS AND PARTIES, THUS OVERRIDING SEC. 12, AND AT THE SAME
TIME DEPRIVING THE PLAINTIFF IN THE CIVIL CAUSE OF ANYTHING MORE THAN
PERFUNCTORY REVIEW OF THE DISTRICT COURT'S ORDER OF DISMISSAL.  FN44 

HARDLY CAN IT BE TAKEN THAT RULE 21(B) WAS INTENDED SO TO OVERRIDE
THE PROVISIONS OF SEC. 12, TO CONFER POWER ON THE DISTRICT COURTS TO DO
SO, OR TO NULLIFY THE PLAINTIFF'S RIGHT OF APPEAL FROM AN ORDER
DEPRIVING IT OF THE STATUTORY PRIVILEGE OF CHOOSING THE VENUE.  YET
THESE WOULD BE THE PRACTICAL RESULTS, IF THE CONSIDERATION THAT THE
COURT HAS ORDERED TRANSFER OF THE CRIMINAL CASE IS TO BE CONTROLLING OR
HIGHLY INFLUENTIAL, AS IT UNDOUBTEDLY WOULD BE IN MOST CASES, IN
APPLYING THE DOCTRINE OF FORUM NON CONVENIENS IN THE CIVIL CAUSE.  IF
MATTERS OF POLICY WERE MATERIAL, THESE POSSIBLE CONSEQUENCES WOULD ADD
FORCE TO THE VIEW THAT THE DOCTRINE IS NOT APPLICABLE. 

MOREOVER, IF THE TRANSFER SHOULD RESULT IN HARDSHIP TO THE APPELLEES,
FN45  INSOFAR AS THE HARDSHIP ARISES FROM THAT CAUSE IT IS ONE WHICH
WAS AVOIDABLE BY THEM AND WILL BE INCURRED AS A RESULT OF THEIR OWN
ACTION IN APPLYING FOR IT.  THAT THEY HAVE VOLUNTARILY INCURRED IT IS
NO GOOD REASON FOR DEPRIVING THE PLAINTIFF OF ITS STATUTORY RIGHT OF
CHOICE UNDER THE TERMS AND POLICY OF SEC. 12 IN THE ENTIRELY DISTINCT
CIVIL SUIT. 

FINALLY, BOTH APPELLEES AND THE DISTRICT COURT HAVE PLACED MUCH
EMPHASIS UPON THIS COURT'S RECENT DECISIONS APPLYING THE DOCTRINE OF
FORUM NON CONVENIENS AND IN SOME INSTANCES EXTENDING THE SCOPE OF ITS
APPLICATION.  FN46  WHATEVER MAY BE THE SCOPE OF ITS PREVIOUS
APPLICATION OR OF ITS APPROPRIATE EXTENSION, THE DOCTRINE IS NOT A
PRINCIPLE OF UNIVERSAL APPLICABILITY, AS THOSE DECISIONS UNIFORMLY
RECOGNIZE.  AT LEAST ONE INVARIABLE, LIMITING PRINCIPLE MAY BE STATED. 
IT IS THAT WHENEVER CONGRESS HAS VESTED COURTS WITH JURISDICTION TO
HEAR AND DETERMINE CAUSES AND HAS INVESTED COMPLAINING LITIGANTS WITH A
RIGHT OF CHOICE AMONG THEM WHICH IS INCONSISTENT WITH THE EXERCISE BY
THOSE COURTS OF DISCRETIONARY POWER TO DEFEAT THE CHOICE SO MADE, THE
DOCTRINE CAN HAVE NO EFFECT.  BALTIMORE & O.R. CO. V. KEPNER, 314 U.S.
44; MILES V. ILLINOIS CENTRAL R. CO., 315 U.S. 698.  THE QUESTION
WHETHER SUCH A RIGHT HAS BEEN GIVEN IS USUALLY THE CRUX OF THE
PROBLEM.  IT IS ONE NOT TO BE ANSWERED BY SUCH INDECISIVE INQUIRIES AS
WHETHER THE VENUE OR JURISDICTIONAL STATUTE IS LABELED A "SPECIAL" OR A
"GENERAL" ONE.  NOR IS IT TO BE DETERMINED MERELY BY THE COURT'S VIEW
THAT APPLICABILITY OF THE DOCTRINE WOULD SERVE THE ENDS OF JUSTICE IN
THE PARTICULAR CASE.  IT IS RATHER TO BE DECIDED, UPON CONSIDERATION OF
ALL THE RELEVANT MATERIALS, BY WHETHER THE LEGISLATIVE PURPOSE AND THE
EFFECT OF THE LANGUAGE USED TO ACHIEVE IT WERE TO VEST THE POWER OF
CHOICE IN THE PLAINTIFF OR TO CONFER POWER UPON THE COURTS TO QUALIFY
HIS SELECTION.    THIS IS A CASE IN WHICH THE PERTINENT FACTORS MAKE
CLEAR THAT THE COURTS WERE GIVEN NO SUCH POWER.  ACCORDINGLY THE
JUDGMENT IS REVERSED. 

FN1  "SEC.  12.  THAT ANY SUIT, ACTION, OR PROCEEDING UNDER THE
ANTITRUST LAWS AGAINST A CORPORATION MAY BE BROUGHT NOT ONLY IN THE
JUDICIAL DISTRICT WHEREOF IT IS AN INHABITANT, BUT ALSO IN ANY DISTRICT
WHEREIN IT MAY BE FOUND OR TRANSACTS BUSINESS; AND ALL PROCESS IN SUCH
CASES MAY BE SERVED IN THE DISTRICT OF WHICH IT IS AN INHABITANT, OR
WHEREVER IT MAY BE FOUND."  38 STAT. 736, 15 U.S.C. SEC. 22.    FN2
THESE, WITH THE STATES OF THEIR INCORPORATION AND THEIR PRINCIPAL
PLACES OF BUSINESS, ARE AS FOLLOWS:

      STATE OF       PRINCIPAL PLACE OF

          CORPORATION              INCORPORATION          BUSINESS 

NATIONAL CITY LINES, INC.         DELAWARE          CHICAGO 

AMERICAN CITY LINES, INC.                 "                   " 

PACIFIC CITY LINES, INC.                  "         OAKLAND, CALIF. 

STANDARD OIL CO. OF CALIFORNIA             "         SAN FRANCISCO 

FEDERAL ENGINEERING CORP.         CALIFORNIA                " 

PHILLIPS PETROLEUM CO.            DELAWARE          BARTLESVILLE,
OKLA. 

GENERAL MOTORS CORP. 

FIRESTONE TIRE & RUBBER CO.       OHIO              AKRON, OHIO 

MACK MANUFACTURING CORP.          DELAWARE          NEW YORK 

FN3  FORTY-FOUR CITIES IN SIXTEEN STATES ARE INCLUDED.  THE STATES
ARE AS WIDELY SCATTERED AS CALIFORNIA, FLORIDA, MARYLAND, MICHIGAN,
NEBRASKA, TEXAS AND WASHINGTON.  THE LARGER LOCAL TRANSPORTATION
SYSTEMS INCLUDE THOSE OF BALTIMORE, ST. LOUIS, SALT LAKE CITY, LOS
ANGELES AND OAKLAND.  THE LARGEST CONCENTRATIONS OF SMALLER SYSTEMS ARE
IN ILLINOIS, WITH ELEVEN CITIES; CALIFORNIA WITH NINE (EXCLUDING LOS
ANGELES); AND MICHIGAN WITH FOUR.  THE LOCAL OPERATING COMPANIES WERE
NOT NAMED AS PARTIES DEFENDANT. 

FN4  THE APPELLEE COMPANIES FALL INTO TWO GROUPS.  THE LARGEST, WHICH
MAY BE CALLED THE SUPPLIER GROUP, INCLUDES THE SIX LAST NAMED IN NOTE 2
ABOVE.  EXCEPT FEDERAL, THEY ARE ENGAGED IN PRODUCING AND DISTRIBUTING
THE COMMODITIES PURCHASED BY THE LOCAL OPERATING COMPANIES, THE SALE OF
WHICH IS CHARGED TO BE MONOPOLIZED AND RESTRAINED.  FEDERAL IS A WHOLLY
OWNED SUBSIDIARY OF STANDARD, ENGAGED IN MANAGING INVESTMENTS FOR
STANDARD. 

THE OTHER GROUP, INCLUDING THE FIRST THREE COMPANIES LISTED IN NOTE
2, IS COLLECTIVELY CALLED CITY LINES.  NATIONAL IS A HOLDING COMPANY
WITH OPERATIONS DIRECTED FROM CHICAGO.  AMERICAN AND PACIFIC ARE ITS
SUBSIDIARIES.  THE THREE OWN, CONTROL OR HAVE SUBSTANTIAL INTERESTS IN
THE OPERATING COMPANIES. 

THE COMPLAINT CHARGES THAT THE SUPPLIER APPELLEES FURNISH CAPITAL TO
CITY LINES FOR ACQUIRING CONTROL OF THE LOCAL OPERATING SYSTEMS, UPON
THE UNDERSTANDING THAT CITY LINES CAUSE ALL REQUIREMENTS OF THE LOCAL
SYSTEMS IN BUSSES, PETROLEUM PRODUCTS, TIRES AND TUBES TO BE PURCHASED
FROM THE SUPPLIER APPELLEES AND NO OTHER SELLERS. 

FN5  THE PRAYER OF THE COMPLAINT SOUGHT COMPLETE DIVESTITURE OF THE
SUPPLIER APPELLEES' FINANCIAL INTERESTS IN CITY LINES; PARTIAL
DIVESTITURE OF CITY LINES' INTERESTS IN LOCAL TRANSPORTATION COMPANIES;
VOIDING OF EXISTING CONTRACTS BETWEEN THE SUPPLIER APPELLEES AND CITY
LINES; AND AN INJUNCTION AGAINST PURCHASES FROM THOSE SUPPLIERS BY CITY
LINES OR THEIR OPERATING COMPANIES, EXCEPT IN ACCORDANCE WITH A
COMPETITIVE BIDDING PLAN TO BE INCLUDED IN THE DECREE. 

FN6  IN HIGHLY ATTENUATED SUMMARY THE SHOWING WAS THAT THE
TRANSACTIONS CREATING THE CORE OF THE CHARGED CONSPIRACY TOOK PLACE
CHIEFLY IN OR NEAR CHICAGO; APPELLEES' CHIEF WITNESSES AND DOCUMENTARY
EVIDENCE ARE LOCATED THERE; THEIR TRANSPORTATION TO LOS ANGELES AND
EXTENDED PRESENCE THERE WILL CAUSE GREAT HARDSHIP; NO DEFENDANT
"RESIDES" OR HAS ITS PRINCIPAL OFFICE OR PLACE OF BUSINESS IN THE
CALIFORNIA DISTRICT (CF. NOTE 2); AND TWO TRIALS IN DISTANT CITIES, SEE
TEXT INFRA AT NOTE 41, WILL GREATLY MAGNIFY THE HARDSHIP.  SEE 7 F.R.D.
456, 465. 

FN7  THE GOVERNMENT STRESSES THAT THREE OF THE FIVE SUPPLIER
DEFENDANTS TRANSACT BUSINESS AND ARE "FOUND," CF. NOTE 1, IN THE
CALIFORNIA DISTRICT; THE VOLUME OF SALES ALLEGEDLY RESTRAINED IS MUCH
GREATER ON THE PACIFIC COAST THAN ELSEWHERE; SUBSTANTIAL PORTIONS OF
THE EVIDENCE, ORAL AND DOCUMENTARY, WILL BE PRODUCED FROM CALIFORNIA,
ETC. CF. 7 F.R.D. 456, 465. 

FN8  32 STAT. 823, 36 STAT. 1167, 15 U.S.C. SEC. 29; 43 STAT. 938, 28
U.S.C. SEC. 345. 

FN9  IT IS CONCEDED THAT THREE OF THE DEFENDANTS, STANDARD, GENERAL
MOTORS, AND FIRESTONE, TRANSACT BUSINESS WITHIN THE SOUTHERN DISTRICT
OF CALIFORNIA.  THE OTHERS APPARENTLY WERE SERVED EITHER PURSUANT TO
THE CONCLUDING CLAUSE OF SEC. 12 OR PURSUANT TO SEC. 5 OF THE SHERMAN
ACT.  SEE NOTE 10 INFRA. 

FN10  "SEC 5.  WHENEVER IT SHALL APPEAR TO THE COURT BEFORE WHICH ANY
PROCEEDING UNDER SECTION FOUR OF THIS ACT MAY BE PENDING, THAT THE ENDS
OF JUSTICE REQUIRE THAT OTHER PARTIES SHOULD BE BROUGHT BEFORE THE
COURT, THE COURT MAY CAUSE THEM TO BE SUMMONED, WHETHER THEY RESIDE IN
THE DISTRICT IN WHICH THE COURT IS HELD OR NOT; AND SUBPOENAS TO THAT
END MAY BE SERVED IN ANY DISTRICT BY THE MARSHAL THEREOF."  26 STAT.
210, 15 U.S.C. SEC. 5.  SECTION 4 OF THE SHERMAN ACT (I.E., "THIS ACT")
REFERS SPECIFICALLY TO CIVIL ACTIONS BROUGHT BY THE GOVERNMENT.  CF.
EASTMAN CO. V. SOUTHERN PHOTO CO., 273 U.S. 359, 374. 

FN11  SEE NOTE 46 INFRA. 

FN12  IN THE SCOPHONY CASE WE WERE CONCERNED, NOT AS HERE WITH ANY
QUESTION OF DISCRETION TO DECLINE THE EXERCISE OF JURISDICTION, BUT IN
PRESENTLY PERTINENT PART WITH THE TESTS OF VENUE PRESCRIBED BY THE
SO AS TO ESTABLISH VENUE IN THE DISTRICT OF SUIT. 

FN13  SEE NOTE 1. 

FN14  SEE UNITED STATES V. SCOPHONY CORP., 333 U.S. 795, PART I AT
802-810. 

FN15  THE CLAYTON ACT HARDLY CAN BE REGARDED AS A STATUTE FOR THE
RELIEF OF CORPORATE DEFENDANTS IN ANTITRUST PROCEEDINGS FROM EITHER
PROCEDURAL OR SUBSTANTIVE ABUSES.  SEE LEVY, THE CLAYTON LAW - AN
IMPERFECT SUPPLEMENT TO THE SHERMAN LAW, 3 VA. L. REV. 411. 

FN16  "WISELY, IT HAS NOT BEEN ATTEMPTED TO CATALOGUE THE
CIRCUMSTANCES WHICH WILL JUSTIFY OR REQUIRE EITHER GRANT OR DENIAL OF
REMEDY.  THE DOCTRINE LEAVES MUCH TO THE DISCRETION OF THE COURT TO
WHICH PLAINTIFF RESORTS, AND EXPERIENCE HAS NOT SHOWN A JUDICIAL
TENDENCY TO RENOUNCE ONE'S OWN JURISDICTION SO STRONG AS TO RESULT IN
MANY ABUSES. 

"IF THE COMBINATION AND WEIGHT OF FACTORS REQUISITE TO GIVEN RESULTS
ARE DIFFICULT TO FORECAST OR STATE, THOSE TO BE CONSIDERED ARE NOT
DIFFICULT TO NAME.  AN INTEREST TO BE CONSIDERED, AND THE ONE LIKELY TO
BE MOST PRESSED, IS THE PRIVATE INTEREST OF THE LITIGANT.  ...  THE
COURT WILL WEIGH RELATIVE ADVANTAGES AND OBSTACLES TO FAIR TRIAL." 
GULF OIL CORP. V. GILBERT, 330 U.S. 501, 508. 

FN17  THE EASTMAN OPINION REFERRED TO THE DISADVANTAGES SUFFERED BY
PLAINTIFFS UNDER SEC. 7 OF THE SHERMAN ACT WHO WERE INJURED WHERE THEY
RESIDED OR CONDUCTED THEIR BUSINESS, ONLY TO BE FORCED TO SEEK OUT THE
WRONGDOING COMPANY IN A DISTANT FORUM TO SECURE VENUE AND SERVICE OF
PROCESS, AND THEREFORE ALSO TO TRANSPORT WITNESSES AND INCUR OTHER
DISADVANTAGES IN TRIAL.  273 U.S. 359, 373-374.  LIKEWISE THE
LEGISLATIVE DISCUSSIONS HEREINAFTER CITED UNIFORMLY TREAT THE PROBLEM
AS ONE INVOLVING BOTH INSTITUTING THE SUIT AND TRYING IT.  THERE IS NO
HINT THAT IT WAS CONTEMPLATED THE TWO PHASES OF THE LITIGATION MIGHT BE
SEPARATED AND CONDUCTED IN DIFFERENT PLACES.  SEE, E.G., NOTES 31 AND
32 INFRA. 

FN18  SECTION 12 BEGAN AS SEC. 10, BECAME SEC. 11 IN THE SENATE, AND
FINALLY SEC. 12 IN CONFERENCE.  SIMILARLY, SEC. 4 BEGAN AS SEC. 5,
CHANGED FIRST TO SEC. 3, AND FINALLY TO SEC. 4.  SECTION 4 PROVIDES FOR
RECOVERY OF TREBLE DAMAGES IN PRIVATE ANTITRUST PROCEEDINGS AND ITS
VENUE PROVISIONS APPLY IN TERMS ONLY TO SUCH SUITS.  SECTION 12 APPLIES
TO "ANY SUIT, ACTION, OR PROCEEDING UNDER THE ANTITRUST LAWS AGAINST A
CORPORATION."  THIS LITERALLY IS BROAD ENOUGH TO INCLUDE THE SUITS
COMPREHENDED BY SEC. 4. 

FN19  THE ORIGINAL WORDING OF THE TWO SECTIONS IN RESPECT TO VENUE
WAS SLIGHTLY DIFFERENT BUT THE SUBSTANCE WAS IDENTICAL, BOTH FOLLOWING
THE PREEXISTING PROVISIONS OF SEC. 7 OF THE SHERMAN ACT. 

FN20  E.G., REPRESENTATIVE DICKINSON URGED THAT THE LANGUAGE "BE
EXTENDED SUFFICIENTLY TO REACH EVERY CONTINGENCY, SO THAT THESE
CONCERNS MAY BE SUED IN THAT JURISDICTION WHERE THEY COMMIT THE WRONG,
WHERE THE ACTS COMPLAINED OF MAY BE COMMITTED, WHERE THE OFFICERS,
AGENTS, OR EMPLOYEES, ACTING FOR THEIR MASTER CORPORATION, MAY BE FOUND
SETTING ASIDE THE LAW, AND WHERE THE WITNESSES ARE EASILY OBTAINABLE
...  "  51 CONG. REC. 9190.  LATER HE STATED THAT HE WANTED TO "GIVE
THE WIDEST LIBERTY OF BRINGING SUITS WHERE THE DAMAGE IS DONE AND WHERE
THE ACTION AROSE."  51 CONG. REC. 9417. 

REPRESENTATIVE SUMNERS SPOKE TO THE SAME EFFECT:  "MR. CHAIRMAN, I
BELIEVE THIS MATTER OF VENUE IS ONE OF THE MOST IMPORTANT CONNECTED
WITH THE WHOLE SUBJECT OF ANTITRUST LEGISLATION.  ...  THE PHILOSOPHY
OF LEGISLATION WITH REGARD TO THIS SUBJECT SHOULD GIVE THE VENUE AT THE
PLACE WHEREIN THE CAUSE OF ACTION ARISES."  ID. 9467.  SEE ALSO ID.
9414, 9415, 9608. 

FN21  "WHY NOT AT THE END OF THE SECTION, AFTER THE WORD 'FOUND,' ADD
OTHER WORDS, SUCH AS 'DOING BUSINESS, OR VIOLATING THE PROVISIONS OF
THIS LAW, OR WHEREVER IT MAY DO BUSINESS OR WHERE ITS AGENTS, OFFICERS,
OR EMPLOYEES MAY BE FOUND,' OR OTHER APPROPRIATE LANGUAGE.  A DOZEN
SUGGESTIONS MAY BE MADE IN THE WAY OF AMENDMENT."  ID. 9190.  SEE ALSO
ID. 9414-9417, 9466, 9607, 9663, 9682. 

FN22  "MR. SCOTT.  WHAT IS THE GENTLEMAN'S UNDERSTANDING OF THE WORD
'FOUND'; WHAT IS ITS IMPORT AS USED IN THIS SECTION? 

"MR. DICKINSON.  I UNDERSTAND THAT THERE IS SOME DECISION BY SOME
COURT THAT I AM NOT VERY FAMILIAR WITH THAT MAY POSSIBLE COVER THE VERY
THOUGHT SUGGESTED BY MY PROPOSED AMENDMENT.  I DO NOT BELIEVE THAT IT
MEETS THE SITUATION, AND IF THERE BE ANY DOUBT ABOUT IT, IN ORDER THAT
THE GOVERNMENT MAY PROSECUTE SUCCESSFULLY AND INSTITUTE SUITS AND
ACTIONS AND HAVE TRIALS THE LANGUAGE OUGHT TO BE CLEAR AND DEFINITE,
AND SO PLAIN THAT HE WHO RUNS MAY READ, SO THAT THERE CAN NOT BE TWO
CONSTRUCTIONS."  ID. 9415. 

"MR. CULLOP.  MAY I SUGGEST  ...  THAT EVERY SUIT WHICH HAS ARISEN
UNDER THE SHERMAN ANTITRUST LAW HAS BEEN BROUGHT AT THE HOME OF THE
CORPORATION ITSELF, OR AT ITS PRINCIPAL PLACE OF BUSINESS, AND
THEREFORE THERE WAS NO OCCASION TO CONSTRUE THIS LANGUAGE, 'IS FOUND,'
WHICH IS AMBIGUOUS AND UNCERTAIN.  IF YOU ARE TO CONSTRUE 'IS FOUND,'
YOU WILL HAVE TO CONSTRUE THAT AS THE PLACE OF THE RESIDENCE OF THE
CORPORATION, BECAUSE IT IS NOT MIGRATORY.  YOU CAN NOT GET SERVICE UPON
SOME PERSON TRAVELING THROUGHOUT THE COUNTRY AND HOLD YOUR JURISDICTION
THROUGHOUT THAT TERRITORY. 

"MR. CARLIN.  WHY SHOULD NOT THE SUIT BE BROUGHT IN THE HABITAT OF
THE CORPORATION?  WE HAVE BEEN SUCCESSFUL SO FAR IN THAT MATTER. 

"MR. CULLOP.  IN THIS CASE FOR THE VERY BEST REASON, I THINK.  THE
GENTLEMAN FROM VIRGINIA (MR. CARLIN) NOW HAS DISCLOSED THE PURPOSE OF
THIS LANGUAGE, AND THAT IS WHY I AM COMBATING IT, AND FOR THE BEST OF
REASONS, I THINK.  I DO NOT WANT TO MAKE A RESIDENT OF CALIFORNIA COME
TO TRENTON, N.J., TO BRING A SUIT FOR VIOLATION OF THIS LAW, BUT I WANT
HIM TO SUE AT HOME IN THE JURISDICTION WHERE THE CAUSE OF ACTION
AROSE."  ID. 9416.  SEE ALSO ID. 9466-9467, 9607-9608, 9663-9664. 

FN23  E.G., REPRESENTATIVE FLOYD STATED THAT THE PROVISIONS WERE
DESIGNED "TO GIVE THE GOVERNMENT THE WIDEST POSSIBLE SCOPE IN GETTING
SERVICE IN THESE CASES, AND THE PROVISION IS RIGHT AS IT IS WRITTEN AND
OUGHT NOT TO BE CHANGED."  ID. 9416. 

FN24  "MR. FLOYD.  ...  THE VERY BROADEST LANGUAGE THAT CAN BE USED
IN A STATUTE OF THIS KIND CONFERRING JURISDICTION IS TO GIVE THE
JURISDICTION WHERE THE CORPORATION RESIDES OR IS FOUND."  ID. 9415. 
AND "I THINK THE PROVISIONS RELATING TO SERVICE PROPERLY DRAFTED AS
THEY APPEAR IN THE BILL, AND THAT THE PROPOSED AMENDMENT AND OTHERS
SUGGESTED IN THE DEBATE WOULD NARROW THE SCOPE OF THE PROVISIONS AS
DRAWN."  ID. 9417.  AND SEE ID. 9608. 

FN25  SEE, E.G., REPRESENTATIVE CULLOP'S SUGGESTION TO CONFER
JURISDICTION ON STATE COURTS WITHOUT A RIGHT OF REMOVAL TO THE FEDERAL
COURTS.  ID. 9662-9664. 

FN26  IN OPPOSING THE SUGGESTION TO CONFER JURISDICTION ON THE STATE
COURTS, REPRESENTATIVE FLOYD ARGUED, INTER ALIA, THAT "ANY FRIEND OF
THIS LEGISLATION, AS I AM SURE THE GENTLEMAN FROM INDIANA
(REPRESENTATIVE CULLOP) IS, OUGHT NOT TO AID THOSE WHO ARE FIGHTING
THIS LEGISLATION - THE TRUSTS AND THE COMBINES OF THIS COUNTRY - BY
LOADING IT DOWN WITH QUESTIONABLE AMENDMENTS THAT WILL TEND TO DEFEAT
IT AND DESTROY IT IN THE END."  ID. 9663. 

FN27  IN PLACE OF THE HOUSE AMENDMENT TO SEC. 12 OF "OR HAS AN
AGENT," THE SENATE COMMITTEE SUBSTITUTED THIS LANGUAGE:  "OR TRANSACTS
ANY BUSINESS; AND ALL PROCESS IN SUCH CASES MAY BE SERVED IN THE
DISTRICT OF WHICH IT IS AN INHABITANT, OR WHEREVER IT MAY BE FOUND." 
SEN. REP. NO. 698, 63D CONG., 2D SESS. 73. 

FN28  51 CONG. REC. 14214.  SEE ID. 14596, 15943, 16048-16052. 

FN29  AN AMENDMENT PROVIDING FOR STOCKHOLDER SUITS AGAINST OFFICERS
OF A CORPORATION VIOLATING THE ANTITRUST LAWS WAS ADDED BY THE SENATE
BUT DELETED IN CONFERENCE.  SEE THE REFERENCES CITED IN NOTE 28. 

FN30  SEN. DOC. NO. 583, 63D CONG., 2D SESS. 9.  SEN. DOC. NO. 584,
63D CONG., 2D SESS. 18. 

FN31  SEE NOTES 25, 26.  THE FOLLOWING ARE EXAMPLES OF THE DISCUSSION
ON THE PLAINTIFF'S RIGHT TO CHOOSE:  "MR. DICKINSON.  ...  I DO NOT ASK
TO STRIKE OUT ANY LANGUAGE OF THE COMMITTEE, BUT SIMPLY TO ADD TO IT,
TO MAKE CLEAR AND DEFINITE AND CERTAIN SO THAT ANY PERSON AND ANY
CORPORATION MAY BE SUED NOT ONLY WHERE IT HAS ITS RESIDENCE AS A
CORPORATION OR INDIVIDUAL, BUT THAT IT CAN BE SUED WHEREVER IT IS FOUND
DOING BUSINESS AND THE CAUSE OF ACTION MAY ARISE.    "MR. STEPHENS OF
TEXAS.  ...  I THOROUGHLY AGREE  ...  "  51 CONG. REC. 9414. 

"I WILL SAY TO MY FRIEND FROM WISCONSIN (MR. STAFFORD) THAT WE ARE
LIBERALIZING THE PROCEDURE IN THE COURTS IN ORDER TO GIVE THE
INDIVIDUAL WHO IS DAMAGED THE RIGHT TO GET HIS DAMAGES ANYWHERE -
ANYWHERE YOU CAN CATCH THE OFFENDER, AS IS SUGGESTED BY A FRIEND
SITTING NEAR BY."  THE QUOTED LANGUAGE IS THAT OF REPRESENTATIVE WEBB. 
51 CONG. REC. 16274.  SEE ID. 9467, 9607; ALSO NOTE 32.    FN32  MR.
SCOTT.  I COULD NOT CONCEIVE THAT ANYTHING WOULD DEPRIVE THE PLAINTIFF
OF HIS RIGHT TO CHOOSE THE PLACE OF TRIAL IF HE SO DESIRED, EITHER IN
THE DISTRICT WHERE FOUND OR WHERE THE CORPORATION RESIDES."  ID. 9417. 

"MR. SCOTT.  ...  THE AMENDMENT ENLARGES THE PRESENT INTERPRETATION
OF THE WORD 'FOUND' AS APPLIED TO THE CORPORATE JURISDICTION, AND
PERMITS SUIT TO BE BROUGHT, WITH ABSOLUTE DISCRETION ON THE PART OF THE
PLAINTIFF, IN ANY DISTRICT IN WHICH THE DEFENDANT MAY HAVE AN AGENT,
WITHOUT DEFINING THE CHARACTER OF THAT AGENT."  ID. 9467. 

FN33  REPRESENTATIVE FLOYD REMARKED THAT THE COMMITTEE "LANGUAGE WAS
USED TO MAKE THIS SECTION CONFORM TO THE EXISTING LAW AND ENABLE HIM
(THE ATTORNEY GENERAL) TO HAVE GREATER LIBERTY IN BRINGING THESE
SUITS."  ID. 9415.  AND SEE NOTE 23 SUPRA. 

FN34  SEE NOTES 6 AND 7. 

FN35 IT SHOULD BE NOTED, HOWEVER, THAT "THE MERE BALANCE OF
CONVENIENCE" IN FAVOR OF DEFENDANTS WOULD BE INSUFFICIENT TO JUSTIFY
APPLICATION OF THE DOCTRINE OF FORUM NON CONVENIENS.  THIS HAS BEEN
TRUE SINCE THE EARLIEST SCOTTISH AND ENGLISH CASES APPLYING THE
DOCTRINE, ALTHOUGH THE TEST HAS BEEN VARIOUSLY FORMULATED.  FOR
EXAMPLE, DISMISSAL HAS BEEN AUTHORIZED IF SUIT IS "VEXATIOUS AND
OPPRESSIVE AND AN ABUSE OF THE PROCESS OF THE COURT," OR "ONLY BROUGHT
TO ANNOY THE DEFENDANT."  SEE BRAUCHER, THE INCONVENIENT FEDERAL FORUM,
60 HARV. L. REV. 908, 909-911.  CF. ALSO NOTE 16 SUPRA. 

FN36  CONGRESS HAS PROVIDED THAT THE TRIAL OF THESE ACTIONS MAY, UPON
REQUEST OF THE ATTORNEY GENERAL, "BE GIVEN PRECEDENCE OVER OTHERS AND
IN EVERY WAY EXPEDITED, AND BE ASSIGNED FOR HEARING AT THE EARLIEST
PRACTICABLE DAY  ...  "  32 STAT. 823, 15 U.S.C. SEC. 28.  THE POLICY
OF EXPEDITING FINAL DECISION OF THESE CASES IS FURTHER IMPLEMENTED BY
AUTHORIZING DIRECT APPEALS TO THIS COURT.  32 STAT. 823, 15 U.S.C. SEC.
29. 

FN37  SEE, E.G., SCHINE THEATRES V. UNITED STATES, 334 U.S. 110;
UNITED STATES V. GRIFFITH, 334 U.S. 100, WHICH WERE INSTITUTED IN 1939
AND HAVE RECENTLY BEEN REMANDED FOR FURTHER PROCEEDINGS IN THE TRIAL
COURTS.  AND THE EASTMAN CASE, 273 U.S. 359, THOUGH BEGUN IN 1915, WAS
NOT DECIDED BY THIS COURT UNTIL 1927. 

FN38  IN THIS CASE, ALTHOUGH THE PROCEEDINGS HAVE ADVANCED WITHOUT
UNWARRANTED DELAY AT ANY ONE STAGE, MORE THAN A YEAR HAS BEEN CONSUMED
SOLELY ON THE ISSUE OF FORUM NON CONVENIENS.  THE COMPLAINT WAS FILED
ON APRIL 10, 1947.  MOTIONS TO DISMISS, SUPPORTED BY AFFIDAVITS TO SHOW
INCONVENIENCE, WERE FILED IN AUGUST AND SEPTEMBER.  THE TRIAL COURT
MADE FINDINGS AND ENTERED JUDGMENT OF DISMISSAL ON OCTOBER 15 AND
ALLOWED AN APPEAL ON DECEMBER 3.  THE GOVERNMENT FILED ITS STATEMENT AS
TO JURISDICTION IN THIS COURT ON JANUARY 20, 1948; WE NOTED PROBABLE
JURISDICTION ON FEBRUARY 9, HEARD ORAL ARGUMENT ON APRIL 28, AND TODAY
WE RESOLVE THE ISSUE.  BUT FOR THE INTERVENTION OF THE MOTIONS, THE
CONSEQUENT DISMISSAL AND APPEAL, THE CASE WITH APPROPRIATE EXPEDITION
MIGHT NOW BE WELL ON THE WAY TO FINAL DECISION ON THE MERITS. 

FN39  IN THIS CASE THESE POSSIBILITIES HAVE BEEN DISCOUNTED, LARGELY
UPON THE BASIS THAT THE APPELLEES HAD JOINED IN STIPULATING THAT ALL
REGARDED THE ILLINOIS FORUM "AS THE PROPER FORUM FOR THE ABOVE ACTION"
AND THAT, IN CASE OF DISMISSAL IN THE CALIFORNIA DISTRICT AND FILING OF
A LIKE SUIT IN THE ILLINOIS DISTRICT, THE DEFENDANTS WOULD NOT MOVE FOR
DISMISSAL OF THE NEW SUIT ON THE GROUND OF FORUM NON CONVENIENS.  THE
STIPULATION PERHAPS WOULD BE EFFECTIVE IN THIS CASE TO AVOID THE
COMPLEXITIES OF REPEATED MOTIONS IF SUIT WERE REINSTITUTED IN CHICAGO,
BUT NOT IF THE GOVERNMENT SHOULD SELECT ANY OF THE OTHER VENUES OPEN TO
IT UNDER SEC. 12. 

IN ANY EVENT, THE STIPULATION IS WHOLLY IRRELEVANT TO ANY QUESTION OF
THE GENERAL EFFECT OF THE DOCTRINE'S APPLICABILITY UPON ANTITRUST
PROCEEDINGS.  FOR ONCE THAT WERE ESTABLISHED, NO DEFENDANT OR GROUP OF
DEFENDANTS IN SUBSEQUENT CASES WOULD BE BOUND, OR PERHAPS LIKELY, TO
EXECUTE SUCH A STIPULATION. 

FN40  AS THE GOVERNMENT POINTS OUT, IN PRACTICALLY ALL OF THE MORE
COMPLEX TYPES OF ANTITRUST PROCEEDINGS, THE PRINCIPAL DEFENDANTS ARE
CORPORATIONS DOING A MULTISTATE BUSINESS, AND THE COMBINATION OR
CONSPIRACY CHARGED SELDOM HAS A DEFINED LOCUS.  IN SUCH SITUATIONS, IT
IS GENERALLY TRUE THAT, WHATEVER THE FORUM CHOSEN BY THE PLAINTIFF, IT
WILL BE INCONVENIENT FOR SOME OF THE DEFENDANTS AND OFTEN FOR MOST OF
THEM.  WHEN THERE IS SUCH DIFFUSION OF POSSIBLE VENUE, THAT FACT OF
COURSE WOULD BE BASIS FOR DECLINING TO APPLY THE DOCTRINE OF FORUM NON
CONVENIENS, EVEN IF APPLICABLE.  IT IS ALSO REASON FOR DECLINING TO
ACCEPT THE VIEW THAT THE DOCTRINE WAS INTENDED TO BE APPLICABLE. 

THUS, IN THIS CASE, ALL BUT TWO OF THE APPELLEES WERE INCORPORATED
AND HENCE "RESIDE" IN DELAWARE.  NONE ARE INCORPORATED IN ILLINOIS, AND
ONLY TWO HAVE THEIR PRINCIPAL PLACES OF BUSINESS OR HEADQUARTERS IN
CHICAGO.  THE INVARIABLE PRACTICE FOR FIFTY-FOUR YEARS, FIRST UNDER
SEC. 7, THEN UNDER SEC. 12, HAS BEEN THAT SUIT MAY BE MAINTAINED AND
TRIAL HAD AT THE PLAINTIFF'S ELECTION WHERE THE CORPORATION "RESIDES"
OR WHERE IT "IS FOUND."  BUT IF THIS SUIT HAD BEEN BROUGHT IN DELAWARE
OR AT ANY OF THE PRINCIPAL PLACES OF BUSINESS EXCEPT CHICAGO, UNDER THE
APPLICATION OF FORUM NON CONVENIENS MADE HERE THE TRIAL COULD NOT HAVE
PROCEEDED IN ANY OF THOSE OTHER PLACES.  CF. TIVOLI REALTY V.
INTERSTATE CIRCUIT, 167 F.2D 155.  THE STATUTE, SEC. 12, DOES NOT
REQUIRE TRIAL TO BE HAD WHERE THE AGREEMENT IN CONSPIRACY TAKES PLACE. 
LOCUS OF COMING TO AGREEMENT IS NOT THE GIST OF THE OFFENSES
PROSCRIBED. 

FN41 THE INDICTMENT WAS RETURNED ON APRIL 9, 1947; ON AUGUST 14,
1947, DEFENDANTS' MOTION TO TRANSFER THE CAUSE WAS GRANTED.  THE CIVIL
COMPLAINT WAS FILED ON APRIL 10, 1947, AND DISMISSED ON OCTOBER 15,
1947. 

FN42  RULE 21(B) PROVIDES:  "OFFENSE COMMITTED IN TWO OR MORE
DISTRICTS OR DIVISIONS.  THE COURT UPON MOTION OF THE DEFENDANT SHALL
TRANSFER THE PROCEEDING AS TO HIM TO ANOTHER DISTRICT OR DIVISION, IF
IT APPEARS FROM THE INDICTMENT OR INFORMATION OR FROM A BILL OF
PARTICULARS THAT THE OFFENSE WAS COMMITTED IN MORE THAN ONE DISTRICT OR
DIVISION AND IF THE COURT IS SATISFIED THAT IN THE INTEREST OF JUSTICE
THE PROCEEDING SHOULD BE TRANSFERRED TO ANOTHER DISTRICT OR DIVISION IN
WHICH THE COMMISSION OF THE OFFENSE IS CHARGED."  CF. NOTE 43 AND
TEXT.  IN ADDITION TO THE QUESTIONS THERE RESERVED, WE EXPRESS NO
OPINION ON WHETHER RULE 21(B) APPLIES TO CRIMINAL ANTITRUST
PROSECUTIONS. 

THE FEDERAL RULES OF CRIMINAL PROCEDURE BECAME EFFECTIVE MARCH 21,
1946.  IT WOULD BE STRETCHING VERY FAR THE IDEA OF UTILIZING
LEGISLATIVE HISTORY, IF CRIMINAL RULES ADOPTED TWENTY-TWO YEARS AFTER A
CIVIL STATUTE WAS ENACTED WERE GIVEN ANY SIGNIFICANCE UPON THE MEANING
OR EFFECT OF THE STATUTE. 

FN43  THE PRECISE POINT APPARENTLY HAS NOT ARISEN SINCE THE ADOPTION
OF RULE 21(B), BUT THERE WOULD SEEM TO BE NO STATUTORY BASIS FOR APPEAL
FROM AN ORDER OF THIS TYPE.  SEE 18 U.S.C. SEC. 682.  SEE ALSO SEMEL V.
UNITED STATES, 158 F.2D 231, 232. 

FN44  ALL THAT DEFENDANTS WOULD HAVE TO DO, IN ANY PRACTICAL SENSE,
IN ORDER TO SECURE DISMISSAL, WOULD BE TO CONVINCE THE DISTRICT COURT
THAT TRANSFER OF THE CRIMINAL CAUSE SHOULD BE MADE, AND THEN
DEMONSTRATE THE SELF-EVIDENT FACT THAT TRIAL OF THE TWO CAUSES IN
DIFFERENT DISTRICTS WOULD BE INCONVENIENT. 

FN45  IN VIEW OF OUR DECISION IN THIS CIVIL CASE, THERE WOULD BE
NOTHING TO PREVENT APPELLEES FROM MAKING A MOTION UNDER RULE 21(B) OF
THE CRIMINAL RULES TO HAVE THE CRIMINAL CAUSE RETRANSFERRED TO THE
SOUTHERN DISTRICT OF CALIFORNIA, IF IN THE CHANGED OUTLOOK ARISING FROM
THIS DECISION THAT SHOULD BE THEIR PLEASURE. 

THE GOVERNMENT ARGUES FURTHER THAT AS A PRACTICAL MATTER THERE IS
LITTLE LIKELIHOOD THAT APPELLEES WILL BE FORCED TO DEFEND BOTH
ACTIONS.  FOR ITS DISTINCTLY FOOTNOTE VALUE WE QUOTE FROM ITS BRIEF: 

"WHEN THE GOVERNMENT BELIEVES THAT THERE HAS BEEN A VIOLATION OF THE
SHERMAN ACT, IT SOMETIMES SEEKS CORRECTIVE RELIEF BY WAY OF A CIVIL
SUIT FILED AFTER, OR SIMULTANEOUSLY WITH, THE RETURN OF A CRIMINAL
INDICTMENT, BUT WHEN COMPANION PROCEEDINGS ARE THUS INSTITUTED IT IS
ONLY RARELY THAT BOTH ARE ULTIMATELY BROUGHT TO TRIAL.  IF IT IS HELD
ON THE PRESENT APPEAL THAT DISMISSAL OF THE CIVIL COMPLAINT WAS
ERRONEOUS, THE GOVERNMENT WILL NOT SEEK TO BRING THE CRIMINAL AND THE
CIVIL CASES TO TRIAL SIMULTANEOUSLY AND, IN ANY EVENT, IT IS HIGHLY
UNLIKELY THAT IT WILL BE FOUND NECESSARY TO BRING BOTH CASES TO TRIAL. 

"IF THE GOVERNMENT OBTAINS A DECREE IN A CIVIL SUIT, THE DEFENDANTS
IN A RELATED CRIMINAL CASE USUALLY FILE PLEAS OF NOLO CONTENDERE.  IF
THE CRIMINAL CASE IS TRIED FIRST AND VERDICTS OF GUILTY ARE RETURNED,
THERE IS NOTHING LEFT FOR TRIAL IN THE CIVIL CASE EXCEPT THE QUESTION
OF RELIEF (LOCAL 167 V. UNITED STATES, 291 U.S. 293, 298-299), AND THE
PARTIES ARE CUSTOMARILY ABLE TO REACH AN AGREEMENT ON THIS QUESTION AND
DISPOSE OF THE CIVIL CASE BY THE ENTRY OF A CONSENT DECREE." 

FN46  GULF OIL CORP. V. GILBERT, 330 U.S. 501; KOSTER V. LUMBERMENS
MUTUAL CO., 330 U.S. 518.  SEE ALSO BALTIMORE & OHIO R. CO. V. KEPNER,
314 U.S. 44; MILES V. ILLINOIS CENTRAL R. CO., 315 U.S. 698; WILLIAMS
V. GREEN BAY & W.R. CO., 326 U.S. 549. 

MR. JUSTICE JACKSON, CONCURRING. 

I AGREE WITH THE CONCLUSION OF THE COURT BUT ARRIVE AT IT BY A
SHORTER AND DIFFERENT ROUTE. 

WE HAVE JUST HAD OCCASION TO REVIEW AND TO DECIDE, BY A DIVIDED COURT,
CASES INVOLVING THE DOCTRINE OF FORUM NON CONVENIENS.  GULF OIL CORP.
V. GILBERT, 330 U.S. 501; KOSTER V. LUMBERMENS MUTUAL CASUALTY CO., 330
U.S. 518.  WE THERE HELD THAT, IN CASES WHERE THE PLAINTIFF WAS IN
COURT IN AN ORDINARY CIVIL SUIT ONLY BY REASON OF THE VENUE STATUTES
THAT APPLY GENERALLY, THE COURT COULD EXERCISE DISCRETION IN DISMISSING
COMPLAINTS TO PREVENT IMPOSITION ON ITS JURISDICTION IF THE
CIRCUMSTANCES OF THE PARTICULAR CASE SHOWED AN ABUSE OF THE OPTION
VESTED IN PLAINTIFF BY THE GENERAL VENUE STATUTES.  BUT WE ALSO POINTED
OUT THAT, WHERE THE CHOICE OF FORUM WAS AUTHORIZED BY A SPECIAL VENUE
STATUTE, THIS DISCRETION TO DISMISS WOULD NOT BE IMPLIED.  THE
DISTINCTIONS THERE MADE BETWEEN GENERAL AND SPECIAL VENUE STATUTES MAY
HAVE BEEN OVERLY SIMPLE FROM THE VIEWPOINT OF THE DIALECTICIAN.  BUT AS
WORKING TOOLS OF EVERYDAY CRAFTSMEN THEY DO SERVE TO POINT OUT A
DIFFERENCE THAT I THINK GOVERNS HERE. 

CONGRESS MADE SOME RATHER UNUSUAL PROVISIONS AS TO VENUE IN ANTITRUST
CASES.  HAD IT STOPPED THERE, IT MIGHT HAVE BEEN PERMISSIBLE FOR THE
COURTS TO DEVISE THEIR OWN LIMITATIONS TO PREVENT ABUSE OF THEIR
PROCESS.  BUT CONGRESS DID NOT STOP THERE.  NOT ONLY ONCE BUT THREE
TIMES IT HAS ENACTED ALMOST IDENTICAL PROVISIONS WHICH CHECK ANY ABUSE
OR OPPRESSION FROM COMPELLING DEFENDANTS TO DEFEND IN PLACES REMOTE
FROM THEIR HABITAT.  15 U.S.C. SEC. 5(1890), 15 U.S.C. SEC. 10(1894),
15 U.S.C. SEC. 25(1914). 

THE SCHEME OF THE STATUTES, AS I SEE IT, IS THAT THE ATTORNEY GENERAL
MAY LAY THE VENUE IN ANY DISTRICT WHERE HE MAY PROPERLY SERVE ONE OR
MORE OF HIS DEFENDANTS.  HE MAY GO AHEAD WITH HIS ACTION AGAINST THEM,
WHETHER HE IS ALLOWED TO BRING IN OTHERS OR NOT.  BEFORE HE CAN BRING
IN OTHER PARTIES THAN THOSE PROPERLY SERVED IN THE DISTRICT, I.E.,
THOSE "INHABITANT," "TRANSACTING BUSINESS," OR "FOUND" THERE, IT MUST
BE MADE TO APPEAR TO THE COURT THAT THE ENDS OF JUSTICE REQUIRE THAT
THEY BE BROUGHT BEFORE THE COURT, IN WHICH CASE THEY MAY BE SUMMONED
FROM ANY DISTRICT. 

CONGRESS HAS HERE PROVIDED A PRACTICE BY WHICH ANY DEFENDANT, WHO HAS
NOT SUBJECTED HIMSELF TO SUIT IN THE DISTRICT, MAY OBTAIN THE SAME
PROTECTIONS WHICH THE FORUM NON CONVENIENS DOCTRINE WOULD AFFORD. 

IN THIS CASE, THE DEFENDANTS, WHO MIGHT BE ENTITLED TO URGE THE
DOCTRINE, HAVE NOT RESISTED OR CONTESTED THE ORDER BRINGING THEM INTO
THE SUIT.  IT WAS BY SO DOING THAT THEY COULD HAVE SHOWN THAT THE ENDS
OF JUSTICE WOULD NOT BE SERVED BY SUCH ACTION.  INSTEAD, THEY DESIRE TO
SUBMIT TO BEING BROUGHT IN AND THEN USE THEIR POSITION TO THROW THE
WHOLE CASE OUT.  THIS, I THINK, CANNOT BE DONE. 

THE SPECIAL PROVISION CONGRESS HAS MADE, BOTH TO ESTABLISH VENUE AND
TO PROTECT AGAINST ITS ABUSE, WHETHER THE EXACT EQUIVALENT OF FORUM NON
CONVENIENS OR NOT, SEEMS TO ME TO PRECLUDE ITS APPLICATION BY THE
COURTS TO THIS CLASS OF CASES. 

FOR THIS REASON I CONCUR IN THE RESULT. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THIS IS AN EQUITY SUIT FOR VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN
LAW BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA.  THE SAME DEFENDANTS WERE INDICTED IN THE SAME
COURT FOR THE SAME TRANSACTIONS UNDER THE CRIMINAL PROVISIONS OF THE
SHERMAN LAW.  THAT COURT TRANSFERRED THE CRIMINAL PROCEEDINGS FROM THE
SOUTHERN DISTRICT OF CALIFORNIA TO THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS BECAUSE IT WAS "IN THE INTEREST OF JUSTICE" TO
ORDER THE TRANSFER.  IN DOING SO, THE COURT BELOW WAS OBEDIENT TO RULE
21(B)  FN1  OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, FORMULATED BY
THIS COURT AND HAVING THE FORCE OF LAW.  327 U.S. 823 ET SEQ. WITH
CONVINCING PARTICULARITY THE DISTRICT COURT SET FORTH ITS REASONS FOR
MAKING THIS TRANSFER.  FN2  AFTER THE TRANSFER OF THE CRIMINAL CASE,
THE COURT GRANTED THE MOTION NOW BEFORE US, DISMISSING THE EQUITY SUIT
"IN THE INTEREST OF JUSTICE, JUST AS THE SAME FACTS IN THE COMPANION
CRIMINAL PROSECUTION REQUIRED ITS TRANSFER TO ANOTHER DISTRICT."  7
F.R.D. 456, 465.    IS IT NOT INCONGRUOUS THAT THAT WHICH "THE INTEREST
OF JUSTICE" DEMANDED IN THE CRIMINAL PROSECUTION IS BEYOND THE POWER OF
A COURT IN A CIVIL SUIT AGAINST THE SAME DEFENDANTS ON THE SAME
TRANSACTIONS?  FN3 

OF COURSE CONGRESS MAY LEAVE NO CHOICE TO A COURT TO ENTERTAIN A SUIT
EVEN THOUGH IT IS VEXATIOUS AND OPPRESSIVE FOR THE PLAINTIFF TO CHOOSE
THE PARTICULAR DISTRICT IN WHICH HE PURSUES HIS CLAIM.  BUT SUCH
LIMITATION UPON THE POWER OF COURTS TO ADMINISTER JUSTICE OUGHT NOT TO
BE LIGHTLY DRAWN FROM LANGUAGE MERELY CONFERRING JURISDICTION.  THE
MANNER IN WHICH JURISDICTIONAL PROVISIONS ARE APPROPRIATELY TO BE READ
IS ILLUSTRATED BY OUR DECISION IN MASSACHUSETTS V. MISSOURI, 308 U.S.
1, WHERE THIS COURT RECOGNIZED "CONSIDERATIONS OF CONVENIENCE,
EFFICIENCY AND JUSTICE" EVEN WHEN A STATE INVOKED THE COURT'S ORIGINAL
JURISDICTION IN WHAT WAS CONCEDEDLY A JUSTICIABLE CONTROVERSY.  308
U.S. AT 19.  I DO NOT FIND IN THE SCHEME OF THE ANTI-TRUST ACTS AND OF
THEIR RELEVANT LEGISLATIVE HISTORY THE DUTY TO EXERCISE JURISDICTION SO
IMPERATIVE AS TO PRECLUDE JUDICIAL DISCRETION IN REFUSING TO ENTERTAIN
A SUIT WHERE "THE INTEREST OF JUSTICE" COMMANDS IT. 

DEFENDANTS IN AN ANTI-TRUST SUIT MAY NO DOUBT ATTEMPT TO RESORT TO
DELAYING TACTICS BY MOTIONS CLAIMING UNFAIRNESS OF A PARTICULAR FORUM. 
NEITHER MUST WE BE INDIFFERENT TO THE POTENTIALITIES OF UNFAIRNESS IN
GIVING THE GOVERNMENT A WHOLLY FREE HAND IN SELECTING ITS FORUM SO LONG
AS TECHNICAL REQUIREMENTS OF VENUE ARE MET.  SEE, E.G., THE RAILWAY
SHOPMEN'S STRIKE CASE (UNITED STATES V. RAILWAY EMPLOYEES), 283 F.
479.  ALL PARTIES TO A LITIGATION TEND TO BECOME PARTISANS, AND
CONFIDENCE IN THE FAIR ADMINISTRATION OF JUSTICE HAD BETTER BE RESTED
ON EXACTING STANDARDS IN THE QUALITY OF THE FEDERAL JUDICIARY.  FEDERAL
JUDGES OUGHT TO BE OF A CALIBRE TO BE ABLE TO THWART OBSTRUCTIVE
TACTICS BY DEFENDANTS AND NOT BE DENIED ALL POWER TO CHECK ATTEMPTED
UNFAIRNESS BY A TOO ZEALOUS GOVERNMENT. 

I FIND NOTHING IN THE ANTI-TRUST ACTS COMPARABLE TO THE
CONSIDERATIONS WHICH LED THIS COURT TO CONCLUDE THAT THE PROVISIONS OF
THE FEDERAL EMPLOYERS' LIABILITY ACT WERE DESIGNED TO GIVE RAILROAD
EMPLOYEES A PRIVILEGED POSITION IN BRINGING SUITS UNDER THAT ACT.  SEE,
ESPECIALLY, CONCURRING OPINION IN MILES V. ILLINOIS CENT. R. CO., 315
U.S. 698, 705. 

I AM OF OPINION THAT THE DISTRICT COURT HAD POWER TO ENTERTAIN THE
MOTION ON THE BASIS OF WHICH IT ENTERED THE JUDGMENT. 

FN1 "THE COURT UPON MOTION OF THE DEFENDANT SHALL TRANSFER THE
PROCEEDING AS TO HIM TO ANOTHER DISTRICT OR DIVISION, IF IT APPEARS
FROM THE INDICTMENT OR INFORMATION OR FROM A BILL OF PARTICULARS THAT
THE OFFENSE WAS COMMITTED IN MORE THAN ONE DISTRICT OR DIVISION AND IF
THE COURT IS SATISFIED THAT IN THE INTEREST OF JUSTICE THE PROCEEDING
SHOULD BE TRANSFERRED TO ANOTHER DISTRICT OR DIVISION IN WHICH THE
COMMISSION OF THE OFFENSE IS CHARGED." 

FN2  "I DO NOT QUESTION THE MOTIVE OF THE GOVERNMENT IN INSTITUTING
THE PROSECUTION IN THIS DISTRICT. 

"BUT I AM SATISFIED THAT A TRIAL HERE WOULD IMPOSE UNNECESSARY
HARDSHIPS ON THE DEFENDANTS AND ENTAIL UNJUSTIFIABLE EXPENSE WHICH IT
IS THE OBJECT OF THE NEW RULES OF CRIMINAL PROCEDURE, AND ESPECIALLY OF
THE RULE UNDER DISCUSSION, TO AVOID.  ALTOGETHER THE FACTS SPELL OUT
THE VEXATIOUSNESS AND OPPRESSIVENESS WHICH THE SUPREME COURT HAS WARNED
US TO ESCHEW IN MATTERS OF THIS CHARACTER."  7 F.R.D. 393, 402-403. 

FN3  CF. L. HAND, J., IN UNITED STATES V. ALUMINUM CO. OF AMERICA,
148 F.2D 416, 429:  "IN UNITED STATES V. HUTCHESON, 312 U.S. 219, 61 S.
CT. 463, 85 L. ED. 788, A LATER STATUTE IN PARI MATERIA WAS CONSIDERED
TO THROW A CROSS LIGHT UPON THE ANTI-TRUST ACTS, ILLUMINATING ENOUGH
EVEN TO OVERRIDE AN EARLIER RULING OF THE COURT." 

MR. JUSTICE BURTON JOINS THIS DISSENT. 
..END :














PATERNO V. LYONS, 334 U.S. 314 


NO. 583.  ARGUED APRIL 28, 1948.  - DECIDED JUNE 1, 1948.  - 297 N.Y.
617, 75 N.E.2D 630, AFFIRMED. 


INDICTED IN A NEW YORK STATE COURT FOR RECEIVING STOLEN PROPERTY,
PETITIONER WAS PERMITTED TO PLEAD GUILTY TO ATTEMPTED GRAND LARCENY
SECOND DEGREE, A LESSER OFFENSE NOT CHARGED IN THE INDICTMENT.  HE
FAILED TO AVAIL HIMSELF, WITHIN THE TIME PRESCRIBED, OF STATE LAW
REMEDIES FOR CHALLENGING THE VALIDITY OF THE CONVICTION UNDER STATE
LAW.  LATER HE WAS CONVICTED FOR ANOTHER OFFENSE AND SENTENCED AS A
SECOND OFFENDER.  THEREAFTER HE ATTACKED THE VALIDITY OF THE FIRST
CONVICTION UNDER STATE AND FEDERAL LAW.  UPON REVIEW HERE OF A JUDGMENT
DENYING RELIEF, HELD: 

1.  THE DECISION OF THE HIGHEST COURT OF THE STATE THAT ACCEPTANCE OF
THE PLEA OF GUILTY TO THE LESSER OFFENSE DID NOT DEPRIVE PETITIONER OF
HIS RIGHT UNDER THE STATE CONSTITUTION TO BE PROSECUTED FOR AN INFAMOUS
CRIME ONLY UPON A GRAND JURY INDICTMENT WAS BINDING HERE.  PP. 318
319. 

2.  THE REMEDIES PROVIDED BY STATE LAW FOR CHALLENGING THE VALIDITY
OF THE CONVICTION UNDER STATE LAW (VIZ., MOTION TO WITHDRAW PLEA OF
GUILTY, MOTION IN ARREST OF JUDGMENT, OR DIRECT APPEAL) WERE ADEQUATE
FROM THE STANDPOINT OF THE DUE PROCESS OF LAW GUARANTEED BY THE
FOURTEENTH AMENDMENT, AT LEAST IN THE ABSENCE OF ANY SHOWING THAT
PETITIONER WAS WITHOUT OPPORTUNITY EFFECTIVELY TO TAKE ADVANTAGE OF
SUCH REMEDIES.  P. 319. 

3.  IN VIEW OF THE RELATIONSHIP OF THE TWO OFFENSES UNDER THE STATE
STATUTES, THE INDICTMENT CHARGING ONLY RECEIVING STOLEN PROPERTY
AFFORDED PETITIONER REASONABLE NOTICE AND INFORMATION OF THE LESSER
OFFENSE TO WHICH HE PLEADED GUILTY; AND HE WAS NOT IN THIS RESPECT
DENIED DUE PROCESS OF LAW.  PP. 319-322. 

PATERNO V. LYONS, COMMISSIONER OF CORRECTION. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

A COUNTY COURT OF NEW YORK ADJUDGED INVALID A CONVICTION OF
PETITIONER UPON A PLEA OF GUILTY IN A CRIMINAL PROSECUTION, 187 MISC.
56, 60 N.Y.S.2D 813, BUT WAS PREVENTED FROM VACATING THE JUDGMENT BY A
WRIT OF PROHIBITION ISSUED UPON THE APPLICATION OF THE STATE.  272 APP.
DIV. 120, 69 N.Y.S. 715.  THE COURT OF APPEALS AFFIRMED.  297 N.Y. 617,
75 N.E.2D 630.  THIS COURT GRANTED CERTIORARI.  333 U.S. 831. 
AFFIRMED, P. 322. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

OCTOBER 30, 1936, THE PETITIONER WAS INDICTED IN THE COUNTY COURT OF
ERIE COUNTY, NEW YORK, ON A CHARGE OF 

"BUYING, RECEIVING, CONCEALING AND WITHHOLDING PROPERTY, KNOWING THE
SAME TO HAVE BEEN STOLEN OR APPROPRIATED WRONGFULLY IN SUCH MANNER AS
TO CONSTITUTE LARCENY, CONTRARY TO THE PENAL LAW, SECTION 1308, IN THAT
HE, THE SAID JOSEPH PATERNO ON OR ABOUT THE 5TH DAY OF OCTOBER, 1936,
AT THE CITY OF TONAWANDA, IN THIS COUNTY, FELONIOUSLY BROUGHT N,
RECEIVED, CONCEALED AND WITHHELD PROPERTY STOLEN FROM CHARLES M. ROSEN,
DOING BUSINESS UNDER THE ASSUMED NAME AND STYLE OF ARCADE JEWELRY
SHOP." 

THE PUNISHMENTS PROVIDED FOR THIS OFFENSE AND FOR LARCENY ARE
SUBSTANTIALLY THE SAME.  BOTH MAY, ACCORDING TO CIRCUMSTANCES, RANGE UP
TO TEN YEARS AT HARD LABOR.  FN1  NOVEMBER 10, 1936, PETITIONER
APPEARED IN COURT WITH COUNSEL, PLEADED NOT GUILTY TO THE INDICTMENT,
AND WAS RELEASED ON A BOND OF $2500.  FIVE MONTHS LATER, ON APRIL 14,
1937, HE AGAIN APPEARED IN ERIE COUNTY COURT AND UPON AGREEMENT WITH
THE DISTRICT ATTORNEY WAS "PERMITTED TO PLEAD GUILTY TO THE REDUCED
CHARGE OF ATTEMPTED GRAND LARCENY 2ND DEGREE."  UNDER NEW YORK LAW THE
PUNISHMENT FOR SUCH AN ATTEMPT CAN BE NO MORE THAN HALF THE PUNISHMENT
PROVIDED FOR THE OFFENSE ATTEMPTED.  FN2  THE SENTENCE, NOT IMPOSED
UNTIL JULY 16, THREE MONTHS AFTER THE PLEA OF GUILTY, WAS FOR FIFTEEN
MONTHS MINIMUM AND THIRTY MONTHS MAXIMUM AT HARD LABOR.  THIS SENTENCE
WAS SUSPENDED AND PETITIONER WAS PLACED ON PROBATION WITH A REQUIREMENT
THAT HE "MAKE RESTITUTION $75.00 CASH BALANCE AS DETERMINED BY
PROBATION DEPT." 

ALTHOUGH DISCHARGED FROM PROBATION DECEMBER 1, 1938, PETITIONER ON
DECEMBER 27, 1945, MADE A MOTION IN THE NATURE OF CORAM NOBIS IN THE
ERIE COUNTY COURT ASKING THAT COURT TO VACATE AND SET ASIDE ITS FORMER
CONVICTION OF PETITIONER, PERMIT WITHDRAWAL OF THE PLEA OF GUILTY, AND
FOR LEAVE TO PLEAD DE NOVO.  THERE WAS A SPECIAL REASON WHY PETITIONER
WISHED TO VACATE THIS JUDGMENT LONG AFTER THE PROBATIONARY RESTRAINTS
OF THE SENTENCE HAD BEEN LIFTED.  IN THE MEANTIME HE HAD PLEADED GUILTY
IN THE CHAUTAUQUA COUNTY COURT, NEW YORK, TO THE CRIME OF ROBBERY
SECOND DEGREE UNDER AN INDICTMENT CHARGING HIM WITH ROBBERY FIRST
DEGREE.  IN ACCORDANCE WITH THE REQUIREMENTS OF THE NEW YORK SECOND
FELONY OFFENDER LAW  FN3  THE CHAUTAUQUA COUNTY JUDGE HAD SENTENCED
PETITIONER TO 15 TO 30 YEARS AT HARD LABOR, PROOF HAVING BEEN MADE
BEFORE HIM OF PETITIONER'S PRIOR ERIE COUNTY CONVICTION FOR ATTEMPTED
GRAND LARCENY SECOND DEGREE. 

THE GROUNDS OF THE MOTION IN THE NATURE OF CORAM NOBIS WERE THAT THE
ERIE COUNTY COURT HAD EXCEEDED ITS POWER IN ACCEPTING HIS PLEA OF
GUILTY TO THE OFFENSE OF ATTEMPTED GRAND LARCENY SECOND DEGREE UNDER
THE INDICTMENT WHICH CHARGED HIM WITH THE OFFENSE OF RECEIVING,
CONCEALING, AND WITHHOLDING PROPERTY KNOWING IT TO HAVE BEEN STOLEN. 
HE ALLEGED THAT JUDGMENT OF CONVICTION IN A CASE INITIATED BY AN
INDICTMENT WHICH DID NOT INCLUDE THE CHARGE TO WHICH HE HAD PLEADED
GUILTY DENIED HIM HIS RIGHT UNDER ART. 1, SEC. 6 OF THE NEW YORK
CONSTITUTION TO BE PROSECUTED FOR AN INFAMOUS CRIME ONLY ON INDICTMENT
OF A GRAND JURY,  FN4  AND ALSO DENIED HIM DUE PROCESS OF LAW
GUARANTEED BY THE FOURTEENTH AMENDMENT.  FN5  THE JUDGE OF THE ERIE
COUNTY COURT WAS OF OPINION THAT ACCEPTANCE OF THE PLEA OF GUILTY TO
THE LESSER OFFENSE DEPRIVED HIM OF RIGHTS GUARANTEED BY THE NEW YORK
CONSTITUTION AND THAT THEREFORE HIS CONVICTION WAS WITHOUT DUE PROCESS
OF LAW.  187 MISC. 56, 60 N.Y.S.2D 813.  THAT JUDGE WAS PREVENTED FROM
VACATING THE JUDGMENT, HOWEVER, BY A WRIT OF PROHIBITION ISSUED UPON
THE APPLICATION OF THE STATE BY THE SUPREME COURT OF ERIE COUNTY.  THAT
COURT HELD THAT PATERNO HAD "BEEN DENIED NO CONSTITUTIONAL OR LEGAL
RIGHT."  THE FOURTH DEPARTMENT OF THE SUPREME COURT, APPELLATE
DIVISION, AFFIRMED, 272 APP. DIV. 120, 69 N.Y.S.2D 715, STATING THAT
ACCEPTANCE OF PATERNO'S PLEA TO THE LESSER OFFENSE MIGHT HAVE BEEN AN
ERROR OF LAW WHICH WOULD HAVE JUSTIFIED RELIEF BY MOTION IN ARREST OF
JUDGMENT OR BY APPEAL AS OF RIGHT; BUT THAT PETITIONER, HAVING DECLINED
TO AVAIL HIMSELF OF THESE REMEDIES WITHIN THE STATUTORY PERIOD, COULD
NOT LATER RAISE THE QUESTION.  FN6  IT FAILED TO ACCEPT PATERNO'S CLAIM
THAT THE CIRCUMSTANCES UNDER WHICH HIS PLEA WAS ENTERED DEPRIVED HIM OF
DUE PROCESS OF LAW.  THE NEW YORK COURT OF APPEALS AFFIRMED WITHOUT
OPINION.  297 N.Y. 617, 75 N.E.2D 630.  WE GRANTED CERTIORARI.  333
U.S. 831. 

IT IS AGAIN CONTENDED HERE THAT ACCEPTANCE OF PETITIONER'S PLEA OF
GUILTY TO ATTEMPTED GRAND LARCENY SECOND DEGREE UNDER AN INDICTMENT
WHICH CHARGED THAT HE HAD BOUGHT, RECEIVED, CONCEALED, AND WITHHELD
STOLEN PROPERTY DEPRIVED HIM OF HIS RIGHT UNDER THE NEW YORK
CONSTITUTION TO BE PROSECUTED FOR AN INFAMOUS CRIME ONLY ON A GRAND
JURY INDICTMENT AND THAT CONSEQUENTLY THE ERIE COUNTY JUDGMENT OF
CONVICTION IS A NULLITY.  BUT THIS CONTENTION AS TO NEW YORK LAW HAS
PREVIOUSLY BEEN REJECTED BY THE STATE'S HIGHEST COURT, IN PEOPLE EX
REL. WACHOWICZ V. MARTIN, 293 N.Y. 361, 57 N.E.2D 53, AND WAS AGAIN
REJECTED BY THE NEW YORK COURTS IN THIS CASE.  THEIR DECISION ON SUCH A
STATE QUESTION IS FINAL HERE.  IN RE DUNCAN, 139 U.S. 449, 462; WEST V.
LOUISIANA, 194 U.S. 258, 261. 

PETITIONER NEXT ARGUES THAT THE STATE HAS FAILED TO SUPPLY HIM AN
AVAILABLE REMEDY TO ATTACK THE JUDGMENT AGAINST HIM AND THAT SUCH A
FAILURE DENIES HIM DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH
AMENDMENT.  SEE MOONEY V. HOLOHAN, 294 U.S. 103, 113.  BUT THIS
CONTENTION FALLS WITH ITS PREMISE.  PETITIONER, WITHIN THE PERIODS
PRESCRIBED BY NEW YORK STATUTES, COULD HAVE CHALLENGED ANY ALLEGED
ERRORS OF STATE LAW EITHER BY FILING A MOTION TO WITHDRAW HIS PLEA OF
GUILTY, OR A MOTION IN ARREST OF JUDGMENT, OR BY TAKING A DIRECT APPEAL
FROM THE ORIGINAL JUDGMENT.  FN7  CERTAINLY IN THE ABSENCE OF ANY
SHOWING THAT PETITIONER WAS WITHOUT AN OPPORTUNITY EFFECTIVELY TO TAKE
ADVANTAGE OF THESE CORRECTIVE REMEDIES TO CHALLENGE PURELY STATE
QUESTIONS SUCH REMEDIES ARE ADEQUATE FROM A DUE PROCESS STANDPOINT. 
SEE PARKER V. ILLINOIS, 333 U.S. 571; AMERICAN SURETY CO. V. BALDWIN,
287 U.S. 156, 169, AND CASES CITED N. 6. 

PETITIONER FURTHER CHALLENGES THE JUDGMENT AS A DENIAL OF DUE PROCESS
UPON THE GROUND THAT THE INDICTMENT CHARGED HIM WITH ONE OFFENSE AND
THAT THE JUDGMENT WAS BASED ON A PLEA OF GUILTY TO AN ENTIRELY SEPARATE
OFFENSE.  THIS CHALLENGE AGAIN BASICALLY RESTS ON THE ALLEGATION THAT
UNDER NEW YORK LAW AN INDICTMENT FOR RECEIVING STOLEN PROPERTY DOES NOT
NECESSARILY INCLUDE A CHARGE OF AN ATTEMPT TO STEAL THE PROPERTY. 
PETITIONER'S MOTION TO VACATE ON SUCH A FEDERAL CONSTITUTIONAL GROUND
APPEARS TO BE AN AVAILABLE PROCEDURE UNDER NEW YORK LAW,  FN8  AND THE
COURTS BELOW SO ASSUMED.  DETERMINATION OF THIS FEDERAL DUE PROCESS
QUESTION DOES NOT DEPEND UPON WHETHER AS A MATTER OF NEW YORK LAW THE
ERIE COUNTY JUDGE ERRED IN PERMITTING PETITIONER TO PLEAD GUILTY.  FN9
THE QUESTION TURNS RATHER UPON WHETHER THE PETITIONER UNDER THE
CIRCUMSTANCES HERE DISCLOSED WAS GIVEN REASONABLE NOTICE AND
INFORMATION OF THE SPECIFIC CHARGE AGAINST HIM AND A FAIR HEARING IN
OPEN COURT.  IN RE OLIVER, 333 U.S. 257, 273, 278; COLE V. ARKANSAS,
333 U.S. 196, 201.  WE AGREE WITH THE NEW YORK COURTS THAT THIS
PETITIONER HAD SUCH NOTICE AND INFORMATION.  THE FAIRNESS OF THE
HEARING AFFORDED PETITIONER IS NOT CHALLENGED. 

THERE IS CLOSE KINSHIP BETWEEN THE OFFENSE OF LARCENY AND THAT OF
RECEIVING STOLEN PROPERTY KNOWING THAT IT WAS STOLEN.  WHEN RELATED TO
THE SAME STOLEN GOODS, AS HERE, THE TWO CRIMES CERTAINLY MAY FAIRLY BE
SAID TO BE "CONNECTED WITH THE SAME TRANSACTION" AS THE NEW YORK COURT
OF APPEALS NOTED IN THE WACHOWICZ CASE.  293 N.Y. AT 367, 57 N.E.2D AT
56.  A PERSON COMMITS LARCENY UNDER NEW YORK LAW IF HE "UNLAWFULLY
OBTAINS OR APPROPRIATES" AN ARTICLE, N.Y. PENAL LAW SEC. 1294; HE
VIOLATES THE RECEIVING OF STOLEN PROPERTY STATUTE IF HE "IN ANY WAY
...  CONCEALS, WITHHOLDS, OR AIDS IN CONCEALING OR WITHHOLDING  ...
PROPERTY, KNOWING THE SAME TO HAVE BEEN STOLEN, OR APPROPRIATED
WRONGFULLY IN SUCH A MANNER AS TO CONSTITUTE LARCENY," N.Y. PENAL LAW
SEC. 1308.  THE OVERLAPPING NATURE OF THE TWO OFFENSES IS FURTHER
EMPHASIZED BY THE DEFINITION OF LARCENY IN SEC. 1290, WHICH INCLUDES
CONDUCT WHEREBY ANY PERSON WHO "WITH THE INTENT TO DEPRIVE OR DEFRAUD
ANOTHER OF THE USE AND BENEFIT OF PROPERTY, OR TO APPROPRIATE THE SAME
TO THE USE OF  ... ANY OTHER PERSON OTHER THAN THE TRUE OWNER,
WRONGFULLY TAKES, OBTAINS OR WITHHOLDS (ANY PROPERTY) BY ANY MEANS
WHATEVER, FROM THE POSSESSION OF THE TRUE OWNER OR OF ANY OTHER PERSON
...  " 

IT WOULD BE EXALTATION OF TECHNICAL PRECISION TO AN UNWARRANTED
DEGREE TO SAY THAT THE INDICTMENT HERE DID NOT INFORM PETITIONER THAT
HE WAS CHARGED WITH SUBSTANTIAL ELEMENTS OF THE CRIME OF LARCENY
THEREBY ENABLING HIM, AS A MEANS OF CUTTING HIS SENTENCE IN HALF, TO
AGREE TO PLEAD GUILTY TO AN ATTEMPTED LARCENY.  PROCEDURAL REQUIREMENTS
ARE ESSENTIAL CONSTITUTIONAL SAFEGUARDS IN OUR SYSTEM OF CRIMINAL LAW. 
THESE SAFEGUARDS SHOULD CONSTANTLY AND VIGILANTLY BE OBSERVED TO AFFORD
THOSE ACCUSED OF CRIME EVERY FAIR OPPORTUNITY TO DEFEND THEMSELVES. 
THIS PETITIONER HAD SUCH OPPORTUNITY.  MONTHS AFTER HIS FIRST
APPEARANCE IN COURT HE CAME BACK AND PLEADED GUILTY TO AN ATTEMPT
WRONGFULLY TO "WITHHOLD" THE VERY PROPERTY OF ANOTHER WHICH THE
INDICTMENT HAD ORIGINALLY CHARGED HIM WITH WRONGFULLY "WITHHOLDING." 
FN10  IT WOULD BE A STRAINED INTERPRETATION OF PETITIONER'S
CONSTITUTIONAL RIGHTS TO HOLD THAT UNDER THESE CIRCUMSTANCES HE WAS NOT
GIVEN SUFFICIENT NOTICE OF THE CHARGE AGAINST HIM TO AFFORD A BASIS FOR
AN INTELLIGENT DECISION TO PLEAD GUILTY TO A RELATED BUT LESSER OFFENSE
THAN THAT SPECIFICALLY DESCRIBED IN THE INDICTMENT.  THE DUE PROCESS
CLAUSE OF THE FEDERAL CONSTITUTION REQUIRES NO SUCH HOLDING. 
AFFIRMED. 

FN1  N.Y. PENAL LAW SECS. 1294, 1297, 1308. 

FN2  N.Y. PENAL LAW SEC. 261.  MAXIMUM PUNISHMENT FOR GRAND LARCENY
SECOND DEGREE IS 5 YEARS.  N.Y. PENAL LAW SEC. 1297.  THE DISTRICT
ATTORNEY EXPLAINED HIS REASONS FOR THE AGREEMENT IN THESE WORDS:  "ONLY
A VERY SMALL PORTION OF THE STOLEN PROPERTY WAS RECOVERED AND THAT WAS
FOUND IN THE POSSESSION OF SEVERAL ADMITTED INMATES OF A DISORDERLY
HOUSE WHO ARE OF NECESSITY THE CHIEF WITNESSES FOR THE PEOPLE IN THIS
CASE.  FOR THESE REASONS AND BECAUSE OF THE CHARACTER OF THESE
WITNESSES, IT IS RECOMMENDED THAT THE DEFENDANT BE PERMITTED TO PLEAD
GUILTY TO THE REDUCED CHARGE OF ATTEMPTED GRAND LARCENY 2ND DEGREE." 

FN3  N.Y. PENAL LAW SEC. 1941. 

FN4  "NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL OR OTHERWISE
INFAMOUS CRIME  ...  UNLESS ON INDICTMENT OF A GRAND JURY  ...  "  N.Y.
CONST., ART. 1, SEC. 6. 

FN5  THESE QUESTIONS HAD PREVIOUSLY BEEN RAISED BY PETITIONER IN
OTHER NEW YORK COURTS WITHOUT SUCCESS.  IN 1943 HE HAD MOVED THE
CHAUTAUQUA COUNTY COURT TO VACATE ITS JUDGMENT, UNDER WHICH HE HAD BEEN
SENTENCED AS A SECOND FELONY OFFENDER.  THAT COURT HELD IT WAS WITHOUT
POWER TO PASS UPON THE VALIDITY OF THE ERIE COUNTY JUDGMENT AND
DISMISSED HIS MOTION.  PEOPLE V. PATERNO, 182 MISC. 491, 50 N.Y.S.2D
713.  IN ANOTHER PROCEEDING THE APPELLATE DIVISION OF THE NEW YORK
SUPREME COURT, RELYING ON PEOPLE EX REL. WACHOWICZ V. MARTIN, 293 N.Y.
361, 57 N.E.2D 53, HELD THAT HABEAS CORPUS WAS NOT AVAILABLE TO OBTAIN
VACATION OF THE JUDGMENT, AND THAT THE ONLY WAY TO RAISE A QUESTION AS
TO WHETHER A PLEA OF GUILTY TO ATTEMPTED LARCENY COULD BE ACCEPTED
UNDER AN INDICTMENT SUCH AS THAT AGAINST PATERNO WAS BY APPEAL OR
MOTION IN ARREST OF JUDGMENT.  PEOPLE EX REL. PATERNO V. MARTIN, 268
APP. DIV. 956, 51 N.Y.S.2D 679. 

FN6  THE STATE ARGUES HERE THAT WHILE PETITIONER HAD A RIGHT TO
APPEAL AND CHALLENGE ACCEPTANCE OF THE PLEA OF GUILTY UNDER THE
CIRCUMSTANCES SHOWN, NEITHER PEOPLE EX REL. WACHOWICZ V. MARTIN, 293
N.Y. 361, 57 N.E.2D 53, NOR ANY OTHER NEW YORK COURT OF APPEALS CASE
HAS SQUARELY HELD THAT THE TRIAL COURT'S ACTION WOULD HAVE CONSTITUTED
REVERSIBLE ERROR. 

FN7  N.Y. CODE CRIM. PROC. SECS. 337, 467, 469, 517, 519-521; N.Y.
LAWS 1946, C. 942; N.Y. LAWS 1947, C. 706; MATTER OF HOGAN V. COURT OF
GENERAL SESSIONS, 296 N.Y. 1, 68 N.E.2D 849; MATTER OF HOGAN V. N.Y.
SUPREME COURT, 295 N.Y. 92, 65 N.E.2D 181; PEOPLE EX REL. WACHOWICZ V.
MARTIN, 293 N.Y. 361, 57 N.E.2D 53; PEOPLE V. GERSEWITZ, 294 N.Y. 163,
61 N.E.2D 427; MATTER OF MORHOUS V. N.Y. SUPREME COURT, 293 N.Y. 131,
56 N.E.2D 79; MATTER OF LYONS V. GOLDSTEIN, 290 N.Y. 19, 47 N.E.2D 425;
SEE CANIZIO V. NEW YORK, 327 U.S. 82, 84-85.    FN8  SEE CASES CITED
NOTE 7; FULD, THE WRIT OF ERROR CORAM NOBIS, 117 N.Y.L.J. 2212, 2230,
2248. 

FN9  SEE CALDWELL V. TEXAS, 137 U.S. 692, 698; IN RE CONVERSE, 137
U.S. 624, 631; LEEPER V. TEXAS, 139 U.S. 462, 468; DAVIS V. TEXAS, 139
U.S. 651; HOWARD V. KENTUCKY, 200 U.S. 164, 173. 

FN10  THE APPELLATE DIVISION'S OPINION IN THIS CASE SAID:  "IT IS
TRUE THAT THE CRIME OF ATTEMPTED GRAND LARCENY, SECOND DEGREE IS NOT
NECESSARILY INCLUDED UNDER A CHARGE OF CRIMINALLY RECEIVING STOLEN
PROPERTY (THE THEN INDICTMENT AGAINST PATERNO)(PEOPLE EX REL. WACHOWICZ
V. MARTIN, 293 N.Y. 361, SUPRA) BUT ONE CAN CONCEIVE A SET OF FACTS
UNDER WHICH ONE GUILTY OF CRIMINALLY RECEIVING STOLEN PROPERTY COULD BE
GUILTY OF LARCENY IN UNLAWFULLY WITHHOLDING THE STOLEN PROPERTY FROM
THE OWNER THEREOF.  (PENAL LAW, SEC. 1290; SEE PEOPLE V. VITOLO, 271
APP. DIV. 959; 136 A.L.R. 1091; AND 2 WHARTON ON CRIMINAL LAW, SECS.
1122, 1168.)"  272 APP. DIV. AT 126, 69 N.Y.S.2D AT 719. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE NEW YORK CONSTITUTION REQUIRES THAT PROSECUTION FOR AN "INFAMOUS
CRIME" BE UPON INDICTMENT BY GRAND JURY.  THE NEW YORK COURT OF APPEALS
HAS HELD THAT THIS CONSTITUTIONAL REQUIREMENT DOES NOT NULLIFY THE
ACCEPTANCE BY A TRIAL COURT OF A PLEA OF GUILTY TO THE OFFENSE OF
ATTEMPTED GRAND LARCENY, SECOND DEGREE, UPON AN INDICTMENT FOR
KNOWINGLY RECEIVING STOLEN GOODS.  SINCE, SO FAR AS THE UNITED STATES
CONSTITUTION IS CONCERNED, THE STATES MAY DISPENSE WITH ACCUSATIONS BY
GRAND JURIES, IT IS FOR NEW YORK AND NOT FOR US TO DECIDE WHEN THE
PROCEDURAL REQUIREMENTS OF NEW YORK LAW, NOT TOUCHING THOSE FUNDAMENTAL
SAFEGUARDS WHICH THE UNITED STATES CONSTITUTION PROTECTS, ARE
SATISFIED.  WHAT IS HERE CHALLENGED IS NEW YORK'S DETERMINATION THAT
THE KNOWING RECEIPT OF STOLEN GOODS IS SUFFICIENTLY RELATED TO LARCENY
SO AS TO PERMIT ACCEPTANCE OF A PLEA OF GUILTY OF THE LATTER ON THE
ASSUMPTION THAT AN INDICTMENT FOR ONE AFFORDS ADEQUATE NOTICE OF THE
OTHER.  SURELY THIS DOES NOT RISE TO THE DIGNITY OF A SUBSTANTIAL
FEDERAL QUESTION.  IN THE EARLY DAYS OF THE FOURTEENTH AMENDMENT, THIS
COURT DEEMED IT APPROPRIATE TO REMIND THAT THAT AMENDMENT HAD NOT MADE
THIS COURT AN APPELLATE TRIBUNAL TO SUPERVISE THE ADMINISTRATION OF THE
CRIMINAL LAW OF THE STATES.  IT IS NOT IRRELEVANT TO RECALL THIS
ADMONITION. 

THUS, I AGREE WITH THE COURT'S OPINION, BUT DRAW FROM IT THE
CONCLUSION THAT THE WRIT OF CERTIORARI SHOULD BE DISMISSED FOR WANT OF
A SUBSTANTIAL FEDERAL QUESTION. 
..END :












HILTON V. SULLIVAN, 334 U.S. 323 


NO. 560.  ARGUED APRIL 21, 1948.  - DECIDED JUNE 1, 1948.  - 83 U.S.
APP. D.C. - , 165 F.2D 251, AFFIRMED. 


REGULATIONS OF THE CIVIL SERVICE COMMISSION APPLICABLE TO REDUCTIONS
IN FORCE OF EMPLOYEES OF THE FEDERAL GOVERNMENT PRESCRIBED THE
FOLLOWING ORDER OF PRIORITY FOR RETENTION OF "PERMANENT EMPLOYEES":
(1) A-1 PLUS, WORLD WAR II VETERANS FOR A ONE-YEAR PERIOD AFTER RETURN
TO DUTY; (2) A-1, VETERAN'S PREFERENCE EMPLOYEES WITH EFFICIENCY
RATINGS OF "GOOD" OR BETTER; (3) A-2, EMPLOYEES WITHOUT VETERAN'S
PREFERENCE WITH EFFICIENCY RATINGS OF "GOOD" OR BETTER.  UNDER THE
REGULATIONS, EVERY MEMBER OF GROUPS A-1 PLUS AND A-1 WAS ENTITLED TO BE
RETAINED IN PREFERENCE TO THOSE IN GROUP A-2, WITHOUT REGARD TO LENGTH
OF SERVICE.  PETITIONER WAS CLASSIFIED IN GROUP A-2 AND WAS NOTIFIED OF
A ONE-YEAR FURLOUGH.  HE SUED FOR A DECLARATORY JUDGMENT, PRAYING THAT
THE COMMISSION'S A-1 PLUS AND A-1 CLASSIFICATIONS BE DECLARED VOID,
THAT HE BE RESTORED TO HIS POSITION, AND THAT THE COMMISSION BE
REQUIRED TO RESCIND THE REGULATIONS AND PROMULGATE NEW ONES IN
ACCORDANCE WITH LAW.  HELD: 

1.  IN THE CIRCUMSTANCES OF THIS CASE, PETITIONER IS ENTITLED TO
CHALLENGE THE VALIDITY OF THE A-1 PLUS AS WELL AS THE A-1
CLASSIFICATION.  PP. 325-328. 

2.  THE A-1 PLUS CLASSIFICATION IS AUTHORIZED BY SEC. 8 OF THE
SELECTIVE TRAINING AND SERVICE ACT OF 1940.  PP. 328-333. 

(A)  THE MANDATORY REQUIREMENT OF SEC. 8(B)(A) OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940 THAT THE GOVERNMENT REHIRE ITS
RETURNING VETERAN EMPLOYEES IS NOT QUALIFIED, AS IN THE CASE OF PRIVATE
EMPLOYERS UNDER SEC. 8(B)(B), WHEN "THE EMPLOYER'S CIRCUMSTANCES HAVE
SO CHANGED AS TO MAKE IT IMPOSSIBLE OR UNREASONABLE TO DO SO."  PP. 328
330, 331. 

(B)  TRAILMOBILE CO. V. WHIRLS, 331 U.S. 40, AND FISHGOLD V. SULLIVAN
DRYDOCK & REPAIR CO., 328 U.S. 275, DISTINGUISHED.  PP. 330-333. 

(C)  THE PROHIBITION OF SEC. 8(C) OF THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940 AGAINST "DISCHARGE" OF A REEMPLOYED WAR VETERAN
MUST BE READ IN LIGHT OF THE DIFFERENT REEMPLOYMENT OBLIGATIONS IMPOSED
ON PRIVATE EMPLOYERS AND ON THE FEDERAL GOVERNMENT.  P. 331. 

(D)  SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944 DID NOT SO
AMEND SEC. 8 OF THE SELECTIVE TRAINING AND SERVICE ACT AS TO CONFER
UPON PETITIONER RETENTION RIGHTS BASED UPON HIS LENGTH OF SERVICE.  P.
332. 

(E)  A ONE-YEAR FURLOUGH, APPLIED TO VETERANS, WOULD BE A "DISCHARGE"
WITHIN THE MEANING OF SEC. 8(C) OF THE SELECTIVE TRAINING AND SERVICE
ACT.  P. 333. 

3.  THE A-1 CLASSIFICATION, WHICH GIVES ALL PERMANENT EMPLOYEE
"VETERANS WITH 'GOOD' OR HIGHER EFFICIENCY RATINGS" RETENTION
PREFERENCES OVER ALL NONVETERANS, EVEN OVER NONVETERANS WITH HIGHER
EFFICIENCY RATINGS AND LONGER GOVERNMENT SERVICE, IS AUTHORIZED BY SEC.
12 OF THE VETERANS' PREFERENCE ACT OF 1944, IN VIEW OF THAT SECTION'S
LEGISLATIVE HISTORY.  PP. 333-339. 

(A)  THE "DUE EFFECT" REQUIRED BY THE FIRST CLAUSE OF SEC. 12 IS
GIVEN TO LENGTH OF SERVICE BY ITS CONSIDERATION IN THE DETERMINATION OF
RETENTION PREFERENCES AS BETWEEN VETERAN AND VETERAN AND AS BETWEEN
NONVETERAN AND NONVETERAN.  PP. 335-336. 

(B)  THE QUESTION OF THE WISDOM OF THE POLICY EMBODIED IN A
CONGRESSIONAL ENACTMENT IS NOT FOR THIS COURT TO DETERMINE.  P. 339. 

HILTON V. SULLIVAN, SECRETARY OF THE NAVY, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

IN A DECLARATORY JUDGMENT ACTION BY PETITIONER AGAINST THE SECRETARY
OF THE NAVY AND THE MEMBERS OF THE CIVIL SERVICE COMMISSION TO
ESTABLISH HIS EMPLOYMENT STATUS, THE DISTRICT COURT GRANTED THE
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT.  THE COURT OF APPEALS
AFFIRMED.  83 U.S. APP. D.C. - , 165 F.2D 251.  THIS COURT GRANTED
CERTIORARI.  333 U.S. 841.  AFFIRMED, P. 339. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS CONCERNING THE RELATIVE RIGHTS OF WAR
VETERAN AND NONVETERAN EMPLOYEES TO RETENTION IN GOVERNMENT SERVICE
WHEN A PROGRAM OF REDUCTION IN THE NUMBER OF GOVERNMENT CIVILIAN
EMPLOYEES MAKES IT NECESSARY FOR SOME TO BE CHOSEN FOR DISCHARGE.  THE
ACUTE POINT OF CONTROVERSY IS THIS:  IN THE TREATMENT OF PERMANENT
TENURE CIVIL SERVICE EMPLOYEES, SHOULD QUALIFIED HONORABLY DISCHARGED
WAR VETERANS, MERELY BECAUSE THEY ARE SUCH, BE RETAINED IN PREFERENCE
TO NONVETERANS, EVEN THOUGH THOSE NONVETERANS HAVE SERVED THE
GOVERNMENT A SUBSTANTIALLY LONGER TIME THAN THE VETERANS.  THE
QUESTIONS DEPEND UPON WHETHER CERTAIN REGULATIONS PROMULGATED BY THE
CIVIL SERVICE COMMISSION ARE VALID UNDER A PROPER INTERPRETATION OF
CONTROLLING STATUTES. 

THE PETITIONER WAS FOR TWELVE YEARS, FROM 1934 TO 1946, A DULY
APPOINTED PERMANENT STATUS CIVIL SERVICE EMPLOYEE WORKING IN THE
CHARLESTON NAVY YARD.  HIS WORK WAS OF SUCH HIGH QUALITY AS TO EARN HIM
AN EFFICIENCY RATING OF "EXCELLENT."  BY SUCCESSIVE PROMOTIONS, HE
ARRIVED AT THE RESPONSIBLE POSITION OF LEADINGMAN SHIPFITTER AT A BASIC
WAGE OF $12.08 PER DAY.  JANUARY 7, 1946, SHORTLY AFTER THE POST
HOSTILITY REDUCTION OF GOVERNMENTAL EMPLOYEES BEGAN, PETITIONER WAS
DEMOTED TO A POSITION PAYING $10.08 PER DAY AS PART OF A REDUCTION IN
FORCE.  THIS DEMOTION APPARENTLY WAS DUE IN PART TO THE FACT THAT HE
DID NOT HAVE A VETERAN'S PREFERENCE.  OCTOBER 7, 1946, PETITIONER WAS
NOTIFIED THAT DUE TO CURTAILMENT OF WORK AND FUNDS IT WAS NECESSARY TO
ELIMINATE CERTAIN POSITIONS IN HIS COMPETITIVE LEVEL AND THAT IN
ACCORDANCE WITH CIVIL SERVICE REGULATIONS HIS NAME HAD BEEN REACHED FOR
ACTION.  HE WAS TOLD THAT, IF HE APPROVED, HE WAS THEN TO BE PLACED IN
A ONE-YEAR "FURLOUGH STATUS" RATHER THAN ABSOLUTELY SEPARATED FROM
SERVICE BECAUSE IT WAS HOPED THAT CONDITIONS MIGHT JUSTIFY HIS RECALL
TO DUTY WITHIN THE YEAR.  HE WAS ALSO INFORMED THAT HIS "ACTIVE
SERVICE" HAD ALREADY BEEN TERMINATED AND THAT UNLESS SOONER RECALLED TO
DUTY HE WOULD BE SEPARATED FOR REDUCTION IN FORCE AT THE END OF HIS ONE
YEAR FURLOUGH PERIOD. 

THE CIVIL SERVICE REGULATIONS SAID TO REQUIRE TERMINATION OF
PETITIONER'S ACTIVE SERVICE DIVIDE GOVERNMENT EMPLOYEES INTO THREE MAIN
GROUPS - A, B, AND C. GROUP A, WHICH HAS THE HIGHEST PRIORITY FOR
RETENTION, IS COMPOSED OF "PERMANENT EMPLOYEES"; GROUPS B AND C ARE
COMPOSED OF EMPLOYEES WITH LIMITED TENURES OF EMPLOYMENT.  GROUP A IS
DIVIDED INTO FIVE SUBGROUPS, THE FIRST THREE OF WHICH ARE OF PARTICULAR
IMPORTANCE HERE.  THESE THREE SUBGROUPS ARE: 

SUBGROUP A-1 PLUS, (VETERANS OF WORLD WAR II) FOR A ONE-YEAR PERIOD
AFTER RETURN TO DUTY; 

SUBGROUP A-1, VETERANS' PREFERENCE EMPLOYEES WITH "GOOD" (OR HIGHER)
EFFICIENCY RATINGS; 

SUBGROUP A-2, EMPLOYEES WITHOUT VETERANS' PREFERENCE WITH "GOOD" (OR
HIGHER) EFFICIENCY RATINGS.  FN1 

THE RESULT OF THESE COMMISSION GROUPINGS IS THAT A-1 PLUS VETERANS
HAVE THE HIGHEST RETENTION PRIORITY; A-1 THE SECOND; AND A-2, IN WHICH,
NOT HAVING A VETERAN'S PREFERENCE, PETITIONER IS CLASSIFIED, HAS THE
THIRD.  THUS IF THESE REGULATIONS ARE VALID, EVERY MEMBER OF BOTH
SUBGROUP A-1 PLUS AND SUBGROUP A-1 MUST BE RETAINED IN PREFERENCE TO
PETITIONER. 

AFTER RECEIVING NOTICE OF HIS ONE-YEAR FURLOUGH, PETITIONER FILED
THIS COMPLAINT IN DISTRICT COURT FOR DECLARATORY JUDGMENT, MANDAMUS,
AND OTHER RELIEF.  THE DEFENDANTS WERE THE SECRETARY OF THE NAVY AND
THE MEMBERS OF THE CIVIL SERVICE COMMISSION.  THE COMPLAINT CHARGED
THAT PETITIONER'S DEMOTION AND FURLOUGH WERE THE RESULT OF THE
COMMISSION'S REGULATIONS WHICH PRESCRIBED RETENTION PRIORITIES FOR
VETERANS' PREFERENCE EMPLOYEES IN A-1 PLUS AND A-1 OVER ALL NONVETERAN
EMPLOYEES WITHOUT REGARD TO THE LONGER PERIODS OF SERVICE OF SOME OF
THE NONVETERAN EMPLOYEES, INCLUDING PETITIONER.  THE FAILURE OF THE
COMMISSION TO CONSIDER RELATIVE LENGTH OF SERVICE IN ESTABLISHING THESE
RETENTION PRIORITIES WAS CHARGED TO BE "UNREASONABLE, ARBITRARY, AND
CAPRICIOUS, WITHOUT STATUTORY WARRANT, AND CONTRARY TO THE EXPRESS
PROVISIONS" OF APPLICABLE STATUTES.  THE PETITIONER'S PRAYER WAS THAT
THE COMMISSION'S A-1 PLUS AND A-1 CLASSIFICATIONS BE DECLARED VOID,
THAT THE SECRETARY OF THE NAVY BE COMPELLED TO RESTORE HIM TO HIS
ORIGINAL POSITION AS LEADINGMAN SHIPFITTER, THAT THE COMMISSION BE
REQUIRED TO RESCIND THE REGULATIONS AND PROMULGATE NEW ONES IN
ACCORDANCE WITH LAW, AND THAT "SUCH OTHER AND FURTHER RELIEF AS IS
JUST" BE GRANTED HIM.  AFTER ANSWER AND CERTAIN STIPULATIONS OF FACT,
BOTH PARTIES MOVED FOR SUMMARY JUDGMENT AND THE GOVERNMENT'S MOTION WAS
GRANTED.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA AFFIRMED. 
83 U.S. APP. D.C. - , 165 F.2D 251.  IMPORTANCE OF THE QUESTIONS RAISED
PROMPTED US TO GRANT CERTIORARI.  333 U.S. 841. 

FIRST.  WHILE ADMITTING PETITIONER'S RIGHT TO CHALLENGE THE VALIDITY
OF SUBGROUP A-1 IN THIS ACTION, THE GOVERNMENT CONTENDS THAT HE CANNOT
CHALLENGE A-1 PLUS.  THE PREMISE OF THIS ARGUMENT IS THAT, EVEN IF A-1
PLUS WERE INVALID, THE VETERANS GROUPED IN IT WOULD FALL WITHIN
SUBGROUP A-1.  WE FIND NO ADEQUATE SUPPORT FOR THIS PREMISE IN THE
RECORD.  VETERANS IN SUBGROUP A-1 PLUS COULD NOT QUALIFY FOR A-1 UNLESS
THEY HAD EFFICIENCY RATINGS OF "GOOD" OR BETTER.  BUT THE LANGUAGE
DEFINING A-1 PLUS INCLUDES VETERANS OF ALL RATINGS, EVEN BELOW "GOOD." 
AND WHEN THE SUMMARY JUDGMENT IN THIS CASE WAS RENDERED, 61 OF THE 118
VETERANS COMPRISING A-1 PLUS HAD NOT BEEN RATED AT ALL.  TRUE, THE
GOVERNMENT ASSERTS THAT 60 OF THESE VETERANS HAVE NOW BEEN RATED "GOOD"
AND THE SIXTY-FIRST MEMBER HAS RESIGNED.  BUT THE POTENTIAL MEMBERSHIP
OF SUBGROUP A-1 PLUS IS NOT LIMITED TO THOSE VETERANS WHO WERE IN IT
WHEN THE CASE WAS TRIED.  THE CLASSIFICATION PROVIDES FOR A CONTINUING
STATUS OF PREFERENCE OF ONE YEAR FOR ALL RETURNING VETERANS WHO LEFT
GOVERNMENT EMPLOYMENT FOR WAR DUTY.  THERE IS NO INDICATION THAT
ADDITIONAL WAR VETERANS QUALIFIED FOR CLASSIFICATION UNDER A-1 PLUS
WILL NOT RETURN TO CHARLESTON NAVY YARD AND RECLAIM SHIPFITTER JOBS IN
PREFERENCE TO OTHERWISE QUALIFIED NONVETERAN EMPLOYEES.  AND THE
GOVERNMENT DOES NOT CLAIM THAT THIS CLASSIFICATION HAS BEEN REPEALED OR
ALTERED SO THAT IN THE FUTURE IT CAN INCLUDE ONLY THOSE VETERANS WHO
HAVE AN EFFICIENCY RATING OF "GOOD" OR HIGHER.  UNDER THESE
CIRCUMSTANCES WE ARE UNABLE TO SAY THAT ALL MEMBERS OF A-1 PLUS COULD
QUALIFY OR WILL BE ABLE TO QUALIFY AS MEMBERS OF A-1.  THEREFORE WE
CANNOT ACCEPT THE GOVERNMENT'S CONTENTION THAT PETITIONER'S LIKELIHOOD
OF INJURY FROM A-1 PLUS IS TOO REMOTE TO JUSTIFY HIS ATTACK ON IT.  IF
INVALID, THERE IS AS MUCH REASON FOR HIS RIGHT TO CHALLENGE THIS
SUBGROUP AS FOR HIS RIGHT TO CHALLENGE SUBGROUP A-1. 

SECOND.  THE GOVERNMENT FINDS SUPPORT FOR SUBGROUP A-1 PLUS IN SEC. 8
OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, 890,
50 U.S.C. SEC. 308.  THAT SECTION PROVIDES REEMPLOYMENT RIGHTS TO ANY
PERSON WHO UNDER THAT ACT LEFT A POSITION OTHER THAN A TEMPORARY ONE IN
ORDER TO PERFORM TRAINING AND SERVICE IN THE ARMED FORCES AND WHO
SATISFACTORILY COMPLETED HIS TRAINING.  IT FURTHER REQUIRES THAT UPON
APPROPRIATE APPLICATION AFTER RELEASE FROM TRAINING, SUCH PERSON, IF
STILL QUALIFIED TO PERFORM THE DUTIES OF HIS OLD JOB AND "IF SUCH
POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT,  ...  SHALL
BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY,
STATUS, AND PAY."  SECTION 8(C) ALSO PROVIDES THAT A PERSON SO RESTORED
TO HIS OLD POSITION "SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT
CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION." 

THERE APPEARS TO BE LITTLE ROOM FOR CONTENTION THAT THERE IS
AMBIGUITY IN THE LANGUAGE THAT CONGRESS SELECTED TO EXPRESS ITS PURPOSE
TO REQUIRE THE RESTORATION OF A FORMER GOVERNMENT EMPLOYEE WHO ENTERED
THE ARMED FORCES TO HIS OLD POSITION AND TO GIVE HIM THE RIGHT TO
RETENTION FOR A YEAR.  THE LANGUAGE IS THAT SUCH AN EMPLOYEE "SHALL BE
RESTORED" TO HIS POSITION OR TO ONE LIKE IT, SUPPLEMENTED BY LANGUAGE
THAT HE "SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE
WITHIN ONE YEAR AFTER SUCH RESTORATION."  WE HAVE EXAMINED THE
LEGISLATIVE HISTORY OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940
AND FIND NOTHING WHATEVER WHICH FAINTLY SUGGESTS THAT CONGRESS INTENDED
ITS LANGUAGE TO BE LESS MANDATORY THAN IMPLIED BY THE WORDS IT USED. 
THE COMMAND IN SEC. 8(B)(A) THAT THE FEDERAL GOVERNMENT REHIRE ITS
RETURNING VETERAN EMPLOYEES CONTRASTED SHARPLY WITH THE REQUIREMENT IN
SEC. 8(B)(B) THAT A PRIVATE EMPLOYER NEED NOT REEMPLOY SUCH A VETERAN
WHEN "THE EMPLOYER'S CIRCUMSTANCES HAVE SO CHANGED AS TO MAKE IT
IMPOSSIBLE OR UNREASONABLE TO DO SO."  THIS DIFFERENCE WAS NOTED BY THE
CONGRESSIONAL SPONSORS OF THE 1940 ACT, WHO THOUGHT THAT THE FEDERAL
GOVERNMENT SHOULD SET AN EXAMPLE TO PRIVATE INDUSTRY BY PROVIDING JOBS
FOR ALL RETURNING VETERAN EMPLOYEES.  FN2  CONGRESS, HAVING THUS
PROVIDED THAT THE VETERAN WHO LEFT A GOVERNMENT JOB MUST BE REEMPLOYED,
ALSO REQUIRED HIS RETENTION BY DECLARING THAT HE SHOULD NOT BE
DISCHARGED WITHIN A YEAR WITHOUT CAUSE. 

PETITIONER CONTENDS, HOWEVER, THAT THIS COURT'S INTERPRETATIONS OF
SEC. 8(B)(B) AND SEC. 8(C) IN TRAILMOBILE CO. V. WHIRLS, 331 U.S. 40,
AND IN FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. 275,
REQUIRE A HOLDING THAT THE REGULATIONS ESTABLISHING A-1 PLUS ARE
INVALID.  THE TRAILMOBILE CASE DEALT ONLY WITH THE OBLIGATIONS OF A
PRIVATE EMPLOYER TO VETERANS AFTER THE FIRST YEAR OF THEIR RETURN TO
HIS EMPLOYMENT, AND OUR HOLDING THERE IS OF NO RELEVANCE HERE.  IN THE
OTHER CASE, FISHGOLD, FOLLOWING HIS DISCHARGE FROM THE ARMED FORCES,
HAD BEEN RESTORED TO HIS OLD POSITION BY HIS FORMER PRIVATE EMPLOYER. 
WITHIN ONE YEAR THEREAFTER TEMPORARY LAYOFFS BECAME NECESSARY ON EACH
OF NINE DAYS.  FISHGOLD WAS LAID OFF WHILE NONVETERANS WITH LONGER
SERVICE WERE CONTINUOUSLY KEPT AT WORK IN ACCORDANCE WITH A COLLECTIVE
BARGAINING AGREEMENT WHICH REQUIRED THAT "DECREASES" IN THE WORKING
FORCE BE BASED PRIMARILY UPON "LENGTH OF SERVICE."  THIS COURT HELD
THAT SINCE FISHGOLD'S LAYOFFS WERE TEMPORARY, HE STILL RETAINED AN
EMPLOYMENT RELATIONSHIP, AND THUS HAD NOT BEEN "DISCHARGED" WITHIN THE
MEANING OF SEC. 8(C).  THE STATUTE WAS HELD NOT TO REQUIRE THAT WHEN
SLACK WORK COMPELLED A PRIVATE EMPLOYER TO LAY OFF SOME WORKERS
TEMPORARILY A VETERAN RESTORED TO HIS JOB BE GIVEN CONTINUOUS WORK FOR
ONE YEAR AFTER HIS REINSTATEMENT IN PREFERENCE TO OTHER NONVETERAN
EMPLOYEES WHO UNDER THE TERMS OF COMPANY EMPLOYER-EMPLOYEE CONTRACT
WERE ENTITLED TO SUCH WORK BY REASON OF THEIR GREATER "LENGTH OF
SERVICE." 

THERE ARE SEVERAL REASONS WHY WE CANNOT ACCEPT PETITIONER'S ARGUMENT
THAT THE FISHGOLD CASE REQUIRES THE INVALIDATION OF THE A-1 PLUS
CLASSIFICATION.  IN THE FIRST PLACE, WE ARE HERE CONCERNED WITH THE ONE
YEAR RETENTION RIGHTS OF VETERANS RESTORED UNDER SEC. 8(B)(A) TO THEIR
OLD JOBS WITH THE FEDERAL GOVERNMENT, NOT, AS IN THE FISHGOLD CASE,
WITH THE RIGHTS OF VETERANS RESTORED TO JOBS IN PRIVATE INDUSTRY UNDER
SEC. 8(B)(B).  WE HAVE PREVIOUSLY POINTED OUT THAT CONGRESS IN SEC.
8(B)(A) IMPOSED A MANDATORY AND UNCONDITIONAL REEMPLOYMENT OBLIGATION
UPON THE FEDERAL GOVERNMENT; IN OTHER WORDS THE SECTION GUARANTEED THAT
A RETURNING VETERAN WOULD GET BACK HIS JOB WITH THE GOVERNMENT.  BUT
SEC. 8(B)(B) IMPOSED NO SUCH UNCONDITIONAL GUARANTEE THAT A RETURNING
VETERAN WOULD BE REEMPLOYED BY HIS FORMER PRIVATE EMPLOYER.  FOR THAT
SUBSECTION DOES NOT REQUIRE RESTORATION OF RETURNING VETERANS TO THEIR
FORMER PRIVATE JOBS "IF THE EMPLOYER'S CIRCUMSTANCES HAVE SO CHANGED AS
TO MAKE IT UNREASONABLE OR IMPOSSIBLE" TO REHIRE HIM. 

THUS CONGRESS, EVIDENTLY CONSIDERING THAT THERE WERE SIGNIFICANT
DIFFERENCES IN INDUSTRIAL AND GOVERNMENTAL EMPLOYMENT PRACTICES AND
POTENTIALITIES, IMPOSED OBLIGATIONS TO REHIRE RETURNING VETERANS OF A
MARKEDLY DIFFERENT NATURE UPON GOVERNMENT AND PRIVATE EMPLOYERS.  IT
DID NOT DEFINE THE "UNREASONABLE OR IMPOSSIBLE" CIRCUMSTANCES THAT
MIGHT RELIEVE A PRIVATE EMPLOYER OF THE DUTY TO REHIRE VETERANS, NOR
NEED WE ATTEMPT TO DO SO NOW.  BUT IT IS PLAIN THAT SUCH CIRCUMSTANCES
MIGHT CONCEIVABLY BE SUCH AS SERIOUSLY TO AFFECT, NOT ONLY THE
REASONABLENESS AND POSSIBILITY OF REHIRING, BUT ALSO THE REASONABLENESS
AND POSSIBILITY OF RETAINING HIM FOR A FULL YEAR'S CONTINUOUS WORK. 
FOR THIS REASON, AMONG OTHERS, INTERPRETATION OF SEC. 8(C)'S
PROHIBITION AGAINST DISCHARGE OF A RETURNING VETERAN MUST BE MADE IN
LIGHT OF WHETHER HE RETURNS TO A GOVERNMENT-GUARANTEED OR TO A PRIVATE
NON-GUARANTEED JOB.  THEREFORE SEC. 8(C)'S PROHIBITION AGAINST
"DISCHARGE" BY A PRIVATE EMPLOYER CANNOT BE ACCEPTED AS DETERMINATIVE
OF THE SCOPE OF THE CONGRESSIONAL PROHIBITION AGAINST "DISCHARGE" BY
THE GOVERNMENT.    THE FOREGOING DISTINCTION IS ILLUSTRATED BY THE FACT
THAT CIVIL SERVICE WORKERS, UNLIKE THE PRIVATE EMPLOYEES IN THE
FISHGOLD CASE, ARE NOT CONFRONTED BY A SITUATION IN WHICH THEIR
EMPLOYER, THE GOVERNMENT, HAS AN OUTSTANDING CONTRACT WITH THEM
PROVIDING THAT THEY SHALL BE RETAINED IN SERVICE IN PROPORTION TO THEIR
"LENGTH OF SERVICE" AS REDUCTIONS IN FORCE BECOME NECESSARY.  WHATEVER
SENIORITY RIGHTS GOVERNMENT EMPLOYEES HAVE WHEN DISCHARGES OR
REDUCTIONS IN FORCE ARE MADE DEPEND ENTIRELY UPON CONGRESSIONAL ACTS
AND REGULATIONS ISSUED IN HARMONY WITH THEM.  SEE 37 STAT. 555, 5
U.S.C. SEC. 652.  WE HAVE DISCOVERED NO ACTS OR REGULATIONS WHICH CAN
BE CONSTRUED TO RECOGNIZE A NONVETERAN'S LENGTH OF GOVERNMENT SERVICE
AS A FACTOR SUFFICIENT TO OVERRIDE THE REQUIREMENT OF SEC. 8(B)(A) AND
SEC. 8(C) THAT A VETERAN MUST BE RESTORED TO HIS OLD JOB WITH THE
FEDERAL GOVERNMENT AND CANNOT BE DISCHARGED THEREFROM WITHOUT CAUSE FOR
ONE YEAR.  THUS, UNLIKE THE EMPLOYEES IN THE FISHGOLD CASE WHOSE
PRIVATE-EMPLOYMENT CONTRACT-DERIVED SENIORITY PREVENTED THEIR BEING
LAID OFF, PETITIONER HAS NO COMPARABLE STATUTORILY DERIVED SENIORITY
RIGHTS TO HIS JOB WITH THE GOVERNMENT.  PETITIONER ARGUES, HOWEVER,
THAT SEC. 12 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, 5
U.S.C. SEC. 861, IN EFFECT AMENDED SEC. 8 AND CONFERRED RETENTION
RIGHTS UPON HIM BASED UPON HIS LENGTH OF SERVICE.  FOR THE REASONS WE
GIVE BELOW IN DISCUSSING THE VALIDITY OF SUBGROUP A-1, WE THINK THIS
CONTENTION IS WITHOUT MERIT. 

FINALLY, THE FISHGOLD DECISION HELD ONLY THAT A TEMPORARY LAYOFF DID
NOT VIOLATE A VETERAN'S RIGHT UNDER SEC. 8(C) NOT TO BE DISCHARGED
WITHOUT CAUSE FOR ONE YEAR AFTER HE HAD BEEN RESTORED TO HIS OLD JOB. 
HERE THE PETITIONER ASSERTS THAT THE STATUTORY ONE-YEAR PROHIBITION
AGAINST DISCHARGE CONFERS UPON A REEMPLOYED VETERAN NO SECURITY FROM A
FURLOUGH FOR ONE YEAR WITHOUT PAY, THAT SUCH A FURLOUGH IS NOT A
"DISCHARGE" WITHIN THE MEANING OF SEC. 8(C).  THE COMMISSION HAS HERE
TREATED A FURLOUGH OF MORE THAN THIRTY DAYS AS THE EQUIVALENT OF A
DISCHARGE.  THIS IS IN ACCORDANCE WITH PRIOR GOVERNMENTAL PRACTICE
WHICH HAS CONSIDERED THAT THE FURLOUGH OF A VETERAN WITH MILITARY
PREFERENCE VIOLATES REGULATIONS PROVIDING THAT HE SHALL NOT BE
"DISCHARGED OR DROPPED" WHEN "REDUCTIONS IN FORCE ARE BEING MADE."  FN3
MOREOVER, SEC. 14 OF THE VETERANS' PREFERENCE ACT, WHICH SAFEGUARDS
PREFERENCE ELIGIBLES AGAINST ADMINISTRATIVE DENIAL OF THEIR PREFERENCE
RIGHTS, SPECIFICALLY PLACES FURLOUGHS AND SUSPENSIONS FOR MORE THAN
THIRTY DAYS WITHOUT PAY ON THE SAME BASIS AS DISCHARGES.  THUS, THE
COMMON MEANING OF FURLOUGH IN GOVERNMENTAL PRACTICE IS NOT THE SAME AS
THAT WHICH THE COURT IN THE FISHGOLD CASE FOUND TO BE THE MEANING OF
"LAYOFFS" AND "FURLOUGHS" IN "INDUSTRIAL PARLANCE."  TO GIVE THIS ONE
YEAR "FURLOUGH" ANY LESS MEANING THAN THE STATUTORY WORD "DISCHARGE"
WOULD RESULT IN DEPRIVING GOVERNMENT EMPLOYEE VETERANS OF THE ENTIRE
CONGRESSIONAL GUARANTEE OF A YEAR'S RETENTION IN THEIR OLD JOBS.  WE
HOLD THAT THE FURLOUGH, IF APPLIED TO VETERANS, WOULD BE A "DISCHARGE"
WITHIN THE MEANING OF SEC. 8(C).  CONSEQUENTLY, THE COMMISSION ACTED
WITHIN ITS STATUTORY DUTY BY PROVIDING VETERANS A PREFERENCE AGAINST
SUCH REMOVALS BY ESTABLISHING SUBGROUP A-1 PLUS. 

THIRD.  PETITIONER STRONGLY URGES INVALIDITY OF SUBGROUP A-1, WHICH
GIVES ALL PERMANENT EMPLOYEE "VETERANS WITH 'GOOD' OR HIGHER EFFICIENCY
RATINGS" RETENTION PREFERENCES OVER ALL NONVETERANS, EVEN OVER
NONVETERANS WITH HIGHER EFFICIENCY RATINGS AND LONGER GOVERNMENT
SERVICE.  WHILE CONCEDING THAT UNDER SOME LIMITED CIRCUMSTANCES
VETERANS WITH "GOOD OR HIGHER RATINGS" ARE GRANTED PREFERENCE BY SEC.
12 OF THE VETERANS' PREFERENCE ACT OF 1944, PETITIONER ARGUES THAT THE
VETERANS OVER NONVETERANS WHICH FAILS TO GIVE SUBSTANTIAL WEIGHT TO A
NONVETERAN'S LONGER GOVERNMENT SERVICE.  THE GOVERNMENT URGES THAT THE
THE REQUIRED EFFICIENCY RATINGS WITHOUT REGARD TO THE FACT THAT
NONVETERANS MAY HAVE HAD LONGER GOVERNMENT SERVICE.  AN ALTERNATIVE
ARGUMENT IS THAT, WHETHER ABSOLUTELY REQUIRED OR NOT, THE COMMISSION'S
SUBGROUPING IS WELL WITHIN THE POWER TO PROMULGATE "RULES AND
REGULATIONS" SPECIFICALLY AUTHORIZED BY SEC. 12.  THE QUESTION
PRESENTED IS THEREFORE ONE OF INTERPRETATION OF THE RELEVANT LANGUAGE
OF SEC. 12. 

THE PART OF THE SECTION ON WHICH PETITIONER PARTICULARLY RELIES
READS: 

"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  ...  " 

PETITIONER INTERPRETS THIS PORTION OF SEC. 12 AS A CONGRESSIONAL
COMMAND THAT THE COMMISSION MUST INVARIABLY GIVE "DUE EFFECT" TO LENGTH
OF SERVICE IN DETERMINING WHAT EMPLOYEES, WHETHER VETERANS OR
NONVETERANS, SHALL FIRST BE DISCHARGED IN A REDUCTION-OF-FORCE
PROGRAM.  IN EFFECT HE ARGUES THAT THE ABOVE LANGUAGE PROVIDES NO OTHER
"MILITARY PREFERENCE" IN CIVIL SERVICE FOR A VETERAN EMPLOYEE OVER A
NONVETERAN WITH GREATER "LENGTH OF SERVICE" THAN THAT DEFINED IN THE
ABOVE PROVISO, NAMELY, THAT THE LENGTH OF A VETERAN'S ARMY SERVICE
SHALL BE CREDITED IN COMPUTING THE LENGTH OF HIS TOTAL GOVERNMENT
SERVICE. 

THE PART OF SEC. 12 ON WHICH THE GOVERNMENT SUPPORTS THE COMMISSION'S
RECOGNITION OF A VETERAN'S ABSOLUTE RETENTION PREFERENCE WITHOUT REGARD
TO COMPARATIVE LENGTH OF SERVICE OF VETERANS AND NONVETERANS FOLLOWS
IMMEDIATELY AFTER THAT SECTION'S LANGUAGE ON WHICH PETITIONER RELIES,
AND READS: 

" ...  PROVIDED FURTHER, THAT PREFERENCE EMPLOYEES WHOSE EFFICIENCY
RATINGS ARE 'GOOD' OR BETTER SHALL BE RETAINED IN PREFERENCE TO ALL
OTHER COMPETING EMPLOYEES AND THAT PREFERENCE EMPLOYEES WHOSE
EFFICIENCY RATINGS ARE BELOW 'GOOD' SHALL BE RETAINED IN PREFERENCE TO
COMPETING NONPREFERENCE EMPLOYEES WHO HAVE EQUAL OR LOWER EFFICIENCY
RATINGS  ...  " 

THE GOVERNMENT INTERPRETS THIS PROVISO AS A SPECIAL WITHDRAWAL OF THE
PROVISO-DEFINED CLASSES OF VETERANS FROM THE GENERAL TERMS OF THE FIRST
CLAUSE OF SEC. 12 RELATING TO "LENGTH OF SERVICE."  IT VIEWS THIS
PROVISO AS THE CONGRESSIONAL CREATION OF CLASSES OF
VETERANS'"PREFERENCE EMPLOYEES" FN4  WHO "SHALL," IF THEY HAVE THE
DEFINED EFFICIENCY RATINGS, "BE RETAINED IN PREFERENCE TO ALL OTHER
COMPETING EMPLOYEES" WITHOUT REGARD TO LENGTH OF SERVICE AS BETWEEN
VETERANS AND NONVETERANS.  THUS, UNDER THE GOVERNMENT'S INTERPRETATION,
LENGTH OF SERVICE WOULD BE GIVEN THE "DUE EFFECT" REQUIRED BY THE FIRST
CLAUSE OF SEC. 12 BY ITS CONSIDERATION IN THE DETERMINATION OF
RETENTION PREFERENCES AS BETWEEN VETERAN AND VETERAN AND AS BETWEEN
NONVETERAN AND NONVETERAN.  THIS INTERPRETATION OF THE PROVISO AND THE
THEM, IS PLAINLY CALLED FOR BY THE LANGUAGE, AND HARMONIZES THIS
PORTION OF THE ACT WITH ALL ITS OTHER PARTS AND WITH THE ACT'S BROAD
PURPOSES.  THE INTERPRETATION IS COMPELLED, SO THE GOVERNMENT ARGUES,
BY THE ACT'S LEGISLATIVE HISTORY, PARTICULARLY WHEN THE PROVISO AND
PRECEDING CLAUSES IN THE SECTION ARE VIEWED IN THE LIGHT OF A LONG
SERIES OF PRIOR CONGRESSIONAL ENACTMENTS AND AUTHORIZED EXECUTIVE
ORDERS GRANTING PREFERENCES IN GOVERNMENT EMPLOYMENT TO VETERANS AND
THEIR CLOSE RELATIVES.  WE AGREE WITH THE GOVERNMENT THAT IN THE LIGHT
OF THE FOREGOING FACTORS NO OTHER INTERPRETATION OF THE PERTINENT PARTS
OF THE SECTION CAN FAIRLY BE REACHED. 

IN 1876, SEVENTY-TWO YEARS AGO, CONGRESS PASSED A LAW WHICH REQUIRED
ANY EXECUTIVE DEPARTMENT WHEN MAKING "ANY REDUCTION OF FORCE" TO
"RETAIN THOSE PERSONS WHO MAY BE EQUALLY QUALIFIED WHO HAVE BEEN
HONORABLY DISCHARGED FROM THE MILITARY OR NAVAL SERVICE OF THE UNITED
STATES, AND THE WIDOWS AND ORPHANS OF DECEASED SOLDIERS AND SAILORS." 
19 STAT. 143, 169; 5 U.S.C. SEC. 37.  FN5 IN 1912 CONGRESS GREATLY
STRENGTHENED THE OLD 1876 POLICY BY PROVIDING THAT "IN THE EVENT OF
REDUCTIONS BEING MADE IN THE FORCE IN ANY OF THE EXECUTIVE DEPARTMENTS
NO HONORABLY DISCHARGED SOLDIER OR SAILOR WHOSE RECORD IN SAID
DEPARTMENT IS RATED GOOD SHALL BE DISCHARGED OR DROPPED, OR REDUCED IN
RANK OR SALARY."  37 STAT. 360, 413.  FN6  THERE IS NOTHING AMBIGUOUS
ABOUT THIS 1912 PROVISION.  IT WAS AN ABSOLUTE COMMAND THAT NO
GOVERNMENTAL DEPARTMENT SHOULD DISCHARGE, DROP, OR REDUCE IN RANK ANY
HONORABLY DISCHARGED VETERAN GOVERNMENT EMPLOYEE WITH A RATING OF
"GOOD."  LENGTH OF SERVICE IN NO WAY QUALIFIED THE PREFERENCE GIVEN THE
VETERAN.  AND SUBSEQUENT EXECUTIVE ORDERS NOT ONLY RECOGNIZED THIS
PROVISION AS GIVING VETERANS AN ABSOLUTE PREFERENCE,  FN7  BUT ALSO
EXTENDED THE PREFERENCE TO VETERANS IN THE FIELD SERVICE  FN8  AND TO
POSITIONS NOT UNDER CIVIL SERVICE.  FN9 

EXECUTIVE ORDER 4240 OF JUNE 4, 1925, AS AMENDED BY EXECUTIVE ORDER
5068 OF MARCH 2, 1929, PROVIDED, AS DOES SUBGROUP A-1 HERE, AN ABSOLUTE
RETENTION PREFERENCE FOR VETERANS OVER NONVETERANS WHERE THE VETERANS'
EFFICIENCY RATINGS WERE "GOOD," AND A SIMILAR ABSOLUTE PREFERENCE OVER
NONVETERANS WHOSE RATINGS WERE LESS THAN GOOD IF THE VETERANS' RATINGS
WERE EQUAL TO THOSE OF THE NONVETERANS.  AND AT THE TIME OF PASSAGE OF
THE VETERANS' PREFERENCE ACT OF 1944, THERE WERE 1943 CIVIL SERVICE
REGULATIONS OUTSTANDING  FN10  WHICH GRANTED VETERANS WITH PERMANENT
TENURE AND WITH A RATING OF "GOOD" OR HIGHER, PRECISELY THE SAME
ABSOLUTE RETENTION PREFERENCE OVER NONVETERANS WHICH IS NOW AFFORDED BY
SUBGROUP A-1, HERE ATTACKED AS INVALID.  CONSEQUENTLY, A HOLDING THAT
VETERANS WITH A RATING OF "GOOD" NO LONGER HAVE A RETENTION PREFERENCE
OVER NONVETERANS WITH LONGER SERVICE, WOULD MEAN THAT PASSAGE OF THE
VETERANS' PREFERENCE ACT IN 1944 NARROWED THE LONG-EXISTING SCOPE OF
VETERANS' PREFERENCES IN CASE OF REDUCTION IN FORCE OF GOVERNMENT
PERSONNEL.  THE PURPOSE OF THAT ACT'S SPONSORS AND OF CONGRESS IN
PASSING IT APPEARS TO HAVE BEEN PRECISELY THE OPPOSITE - TO BROADEN
RATHER THAN NARROW THE PREFERENCE. 

THE SENATE CIVIL SERVICE COMMITTEE WAS TOLD BY THE CONGRESSIONAL
SPONSOR OF THE MEASURE THAT "THIS BILL TAKES AWAY NO EXISTING VETERANS'
PREFERENCE, EITHER BY STATUTE OR EXECUTIVE ORDER, BUT IT DOES
STRENGTHEN, BROADEN, AND IMPLEMENTS THE VETERANS' PREFERENCE POLICY
HERETOFORE IN EFFECT," AND THAT IT WOULD "GIVE LEGISLATIVE SANCTION TO
EXISTING VETERANS' PREFERENCE, TO THE RULES AND REGULATIONS IN THE
EXECUTIVE BRANCH OF THE GOVERNMENT  ...  "  FN11  A MEMBER OF THE CIVIL
SERVICE COMMISSION IN EXPLAINING THE BILL TO THE SENATE COMMITTEE
CALLED THE PROVISO HERE INVOLVED THE "HEART OF THE SECTION,"  FN12  AND
STATED THAT IT WAS "SUBSTANTIALLY THE SAME" AS THE 1912 ACT, FN13
WHICH, AS BEFORE POINTED OUT, PROVIDED FOR AN ABSOLUTE VETERANS'
RETENTION PREFERENCE WITHOUT REGARD TO LENGTH OF SERVICE.  FN14  AND IN
EXPLAINING THE BILL ON THE FLOOR OF THE HOUSE, THE SPONSOR AND ACTIVE
PROPONENTS OF THE MEASURE EXPLAINED IT AS STRENGTHENING AND BROADENING
VETERANS' PREFERENCES THEN EMBODIED IN STATUTES AND EXECUTIVE ORDERS. 
FN15 

NOT ONLY DID THE FRIENDS OF THE VETERANS' PREFERENCE ACT EXPLAIN TO
THE SENATE COMMITTEE ON CIVIL SERVICE AND TO THE CONGRESS THE BROAD
PREFERENCES THE ACT WOULD GRANT.  HOSTILE WITNESSES GRAPHICALLY POINTED
OUT TO THE SENATE COMMITTEE WHAT THEY DEEMED WOULD BE THE UNFAIRNESS OF
THE ACT'S EFFECT IF PASSED AS WRITTEN.  ONE SUCH WITNESS REPRESENTING
THE CIVIL SERVICE REFORM LEAGUE SAID:  "I THINK YOU OUGHT TO GIVE
CONSIDERATION TO  ... RETENTION OF VETERANS IN CIVIL SERVICE REGARDLESS
OF LENGTH OF SERVICE.  I DO NOT THINK IT IS FAIR, A VETERAN BE RETAINED
IN SERVICE WHO HAS BEEN IN THE SERVICE 6 MONTHS AS AGAINST A PERSON WHO
HAS BEEN IN THE SERVICE 25 YEARS.  I BELIEVE SOME DISTINCTION MIGHT BE
MADE, OTHERWISE YOU WOULD DO A GRAVE INJUSTICE TO THOSE PEOPLE WHO HAVE
LONG YEARS OF SERVICE IN CIVIL SERVICE."  FN16  AND ANOTHER WITNESS
AGAINST THE BILL POINTED OUT THAT UNDER IT NONVETERANS WOULD "BE THE
FIRST TO BE LAID OFF AND THE LAST TO BE TAKEN ON."  FN17 

THUS CONGRESS PASSED THE BILL WITH FULL KNOWLEDGE THAT THE LONG
STANDING ABSOLUTE RETENTION PREFERENCES OF VETERANS WOULD BE EMBODIED
IN THE ACT.  PETITIONER MAKES AN APPEALING ARGUMENT AGAINST THIS
POLICY.  BUT IT IS A POLICY ADOPTED BY CONGRESS, AND OUR RESPONSIBILITY
IS TO INTERPRET THE ACT, NOT TO OVERRULE THE CONGRESSIONAL POLICY. 
FN18  AFFIRMED. 

FN1  THE REMAINING TWO SUBGROUPS OF A, NOT INVOLVED HERE, ARE: 

SUBGROUP A-3, VETERANS WITH EFFICIENCY RATINGS LOWER THAN "GOOD." 

SUBGROUP A-4, NONVETERANS WITH EFFICIENCY RATINGS LOWER THAN "GOOD." 
5 CODE FED. REG. (SUPP. 1945) SEC. 12.303, NOW FOUND IN 5 CODE FED.
REG. (SUPP. 1947) SEC. 20.3(A). 

FN2  HEARINGS BEFORE HOUSE COMMITTEE ON MILITARY AFFAIRS ON H.R.
10132, 76TH CONG., 3D SESS. 80-82, 118, 235; 86 CONG. REC. 11697. 

FN3  SEE 40 OPS.  ATTY.  GEN., NO. 115(SEPT.  20, 1946), P. 7,
REFERRING TO OPINION, ATTORNEY GENERAL MITCHELL IN 1929, INTERPRETING
EXECUTIVE ORDER 5068, MARCH 2, 1929.  THE SUBSTANCE OF THAT ORDER IS
SET OUT IN THIS OPINION AT P. 337. 

FN4  THE ACT NOT ONLY PROVIDES PREFERENCES FOR VETERANS BUT UNDER
CERTAIN CIRCUMSTANCES GRANTS PREFERENCES TO VETERANS' WIVES, WIDOWS AND
MOTHERS.  SEC. 2, 5 U.S.C. SEC. 851, AS AMENDED BY 62 STAT. 3.  SEE
H.R. REP. NO. 1289, 78TH CONG., 2D SESS. 3. 

FN5  DISABLED VETERANS HAD BEEN GRANTED EMPLOYMENT PREFERENCES IN
1865.  13 STAT. 571.  THIS STATUTORY POLICY WAS EXPRESSLY PRESERVED BY
SEC. 7 OF THE CIVIL SERVICE ACT OF 1883, 22 STAT. 403, 406, 5 U.S.C.
SEC. 638, WAS CARRIED FORWARD IN OTHER ACTS, AND HAS BEEN REPEATED IN A
MOST COMPREHENSIVE MANNER IN SEC. 2 OF THE VETERANS' PREFERENCE ACT OF
1944.    FN6  IT IS OF INTEREST THAT THIS LEGISLATIVE EXPRESSION, LIKE
THE ONE BEFORE US, WAS A PROVISO IN A SECTION, AND THAT THE SECTION AS
A WHOLE HAD TO DO WITH THE MANNER IN WHICH THE CIVIL SERVICE COMMISSION
SHOULD PROVIDE FOR EFFICIENCY RATINGS IN RELATION TO PROMOTIONS,
DEMOTIONS AND DISMISSALS OF CIVIL SERVICE EMPLOYEES. 

FN7  SEC. 7, EXECUTIVE ORDER 3567, OCTOBER 24, 1921.    FN8
EXECUTIVE ORDER 3801, MARCH 3, 1923. 

FN9  DEPARTMENTAL CIRCULAR 146, U.S. CIVIL SERVICE COMM'N, OCTOBER
22, 1936. 

FN10  5 CODE FED. REG. (SUPP. 1943) SECS. 12.301-12.313.  THESE
REGULATIONS, LIKE THOSE ATTACKED HERE, SEPARATED ALL CIVIL SERVICE
EMPLOYEES INTO DIFFERENT CATEGORIES ACCORDING TO THEIR TENURE, WITH
PERMANENT EMPLOYEES HAVING THE HIGHEST RETENTION STATUS.  THUS ALL
PERMANENT EMPLOYEES, REGARDLESS OF VETERANS' PREFERENCE AND OF
EFFICIENCY RATING, ENJOYED PRIORITY OVER ALL EMPLOYEES WITH LIMITED
TENURES. 

FN11  HEARINGS BEFORE SENATE COMMITTEE ON CIVIL SERVICE ON S. 1762
AND H.R. 4115, 78TH CONG., 2D SESS. 8-9. 

FN12  ID. AT 29. 

FN13  ID. AT 27, 29. 

FN14  THREE VETERANS' ORGANIZATIONS COLLABORATED WITH THE LEGISLATIVE
SPONSORS IN DRAFTING THE ACT.  HEARINGS BEFORE SENATE COMMITTEE ON
CIVIL SERVICE ON S. 1762 AND H.R. 4115, 78TH CONG., 2D SESS. 8.  A
REPRESENTATIVE OF ONE OF THESE ORGANIZATIONS STATED TO THE COMMITTEE:
"THIS MEASURE GIVES TO HONORABLY DISCHARGED VETERANS OF WORLD WAR I AND
WORLD WAR II, THEIR WIDOWS, AND THE WIVES OF DISABLED VETERANS WHO
THEMSELVES ARE NOT QUALIFIED, PREFERENCE IN EMPLOYMENT WHERE FEDERAL
FUNDS ARE DISBURSED.  IT PROVIDES, BY LAW, A DEFINITE PREFERENCE BOTH
IN APPOINTMENT AND RETENTION IN FEDERAL POSITIONS.  WHILE SUCH A
PREFERENCE IN MANY INSTANCES NOW EXISTS BY VIRTUE OF EXECUTIVE ORDERS
AND CIVIL SERVICE COMMISSION REGULATIONS, THIS BILL GIVES SUCH
PREFERENCE A PERMANENT STANDING THAT CANNOT BE CHANGED EXCEPT BY
CONGRESSIONAL ACTION.  THE BILL, LIKEWISE, DOES NOT TAKE AWAY FROM THE
VETERAN ANY RIGHTS PREVIOUSLY GRANTED UNDER ANY EXISTING LAW, EXECUTIVE
ORDER, CIVIL-SERVICE RULE, OR REGULATION OF ANY DEPARTMENT OF THE
GOVERNMENT, BUT PRESCRIBES BY LAW ADDITIONAL PREFERENCES AND CONFIRMS
MANY NOW EXISTING BY REGULATION."  ID. AT 41-42. 

FN15  90 CONG. REC. 3502, 3503, 3505. 

FN16  HEARINGS BEFORE SENATE COMMITTEE ON CIVIL SERVICE ON S. 1762
AND H.R. 4115, 78TH CONG., 2D SESS. 33-34. 

FN17  ID. AT 63, 65. 

FN18  IT IS WORTHY OF NOTE, HOWEVER, THAT CONGRESS, IN RECOGNITION OF
HARDSHIPS RESULTING FROM REPLACEMENT OF OLDER GOVERNMENT EMPLOYEES BY
VETERANS, HAS PASSED ACTS WHICH GRANT SPECIAL PENSIONS TO EMPLOYEES
OVER 55 YEARS OF AGE WHO HAVE WORKED FOR THE GOVERNMENT FOR 25 YEARS OR
MORE AND WHO HAVE BEEN INVOLUNTARILY SEPARATED FROM THE SERVICE IN
REDUCTIONS IN FORCE.  60 STAT. 939, 5 U.S.C. SEC. 691E; 62 STAT. 48. 
SEE 92 CONG. REC. 9201-9202, H.R. REP. NO. 2443, 79TH CONG., 2D SESS.
1; S. REP. NO. 1678, 79TH CONG., 2D SESS. 1-2. 

MR. JUSTICE REED, CONCURRING. 

I AGREE WITH THE CONCLUSION REACHED BY THE COURT IN THIS CASE.  MY
DISAGREEMENT WITH THE OPINION IS LIMITED TO THAT PORTION OF SUBDIVISION
SECOND WHICH INDICATES THAT THE RIGHTS OF A VETERAN AS TO DISCHARGE
AFTER RESTORATION TO EMPLOYMENT BY THE UNITED STATES DIFFER FROM THE
CORRESPONDING RIGHTS OF A VETERAN RESTORED TO EMPLOYMENT BY A PRIVATE
EMPLOYER. 

THE RIGHTS TO RETENTION OF EMPLOYMENT OF BOTH VETERANS ARE GOVERNED
BY THE SAME SUBSECTION 8(C).  54 STAT. 890, 50 U.S.C. SEC. 308. 
FOR ALL EMPLOYEES WHETHER THEY ARE REEMPLOYED BY THE UNITED STATES OR
BY PRIVATE EMPLOYERS. 

NOTHING HAS COME TO MY ATTENTION THAT INDICATES TO ME A CONGRESSIONAL
PURPOSE TO GRANT TO ONE MORE RIGHTS AS TO CONTINUITY OF EMPLOYMENT THAN
TO THE OTHER.  THE LEGISLATION AS TO BOTH DEPENDED UPON THE SAME
CONSTITUTIONAL AUTHORITY - THE WAR POWER.  I CAN SEE NO REASON TO
ATTRIBUTE TO CONGRESS AN INTENTION TO GUARANTEE PUBLIC EMPLOYMENT TO A
RETURNING VETERAN REGARDLESS OF THE NEEDS OF THE PUBLIC SERVICE OR TO
DISCRIMINATE BETWEEN EQUALLY DESERVING VETERANS.  COMPARE FISHGOLD V.
SULLIVAN DRY DOCK & REPAIR CORP., 328 U.S. 275. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON JOIN IN THIS
OPINION. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I CONCUR IN THE RESULT.  BUT I DO SO WITHOUT EXPRESSING OPINION
CONCERNING THE VALIDITY OF SUBGROUP A-1 PLUS OF THE REGULATIONS.  THAT
CLASSIFICATION, AS I UNDERSTAND IT AND THE COURT'S CONSTRUCTION OF IT,
GIVES PREFERENCE FOR RETENTION FOR ONE YEAR IN GOVERNMENTAL WORK TO
VETERANS OF WORLD WAR II OVER ALL OTHERS, INCLUDING VETERANS OF WORLD
WAR I, REGARDLESS OF EFFICIENCY AND LENGTH OF SERVICE WHETHER OF THE
RESTORED VETERAN OR OF HIS COMPETITORS.  IT MAY BE THAT UPON THE SUM OF
THE LEGISLATION CONGRESS INTENDED TO GIVE SO BROAD A PRIORITY TO
RETURNING MEMBERS OF THE MILITARY SERVICES.  BUT IF SO, IT IS THE ONE
INSTANCE IN WHICH BOTH EFFICIENCY AND LENGTH OF SERVICE HAVE BEEN
ABSOLUTELY DISREGARDED.  AND IT IS AT LEAST POSSIBLE, I THINK, TO READ
THE COMPLEX SERIES OF STATUTES BEARING ON THE PROBLEM AS NOT HAVING
BEEN INTENDED TO GO SO FAR. 

BUT I DO NOT REACH THAT QUESTION, BECAUSE SUBGROUP A-1 DOES TAKE
ACCOUNT OF EFFICIENCY.  IT GIVES PREFERENCE TO VETERANS UNLESS THEIR
EFFICIENCY RATING IS LESS THAN "GOOD."  NO SPECIFIC MENTION OF LENGTH
OF SERVICE IS MADE.  BUT WHILE A CLASSIFICATION WHICH IGNORES ALL
CONSIDERATIONS BOTH OF EFFICIENCY AND OF LENGTH OF SERVICE MIGHT BE
FOUND UNAUTHORIZED UNDER THE STATUTORY SCHEME,  FN1  ONE WHICH TAKES
DUE ACCOUNT OF EFFICIENCY, WHICH IS NOT WHOLLY UNRELATED TO LENGTH OF
SERVICE, WELL MIGHT BE SUSTAINED.  AND IN THAT EVENT THE COMMISSION'S
JUDGMENT THAT VETERANS WITH EFFICIENCY RATINGS OF "GOOD" OR BETTER
SHOULD BE PREFERRED TO ALL OTHERS COULD HARDLY BE CALLED ARBITRARY OR
IN EXCESS OF THE AUTHORITY CONFERRED.  FN2 

IT IS TRUE THAT WHEN PETITIONER WAS SEPARATED FROM SERVICE THERE WERE
SOME 61 VETERANS CLASSIFIED A-1 PLUS, WITHOUT EFFICIENCY RATINGS AND IN
PRIORITY TO HIMSELF.  FN3  BUT WE ARE INFORMED, AND IT IS NOT DISPUTED,
FN4  THAT 60 OF THESE MEN NOW HAVE RECEIVED EFFICIENCY RATINGS OF
"GOOD," AND THEREFORE FALL INTO GROUP A-1 IN ANY EVENT.  THE OTHER OF
THE 61 HAS RESIGNED.  HENCE WE ARE TOLD, AND THIS ALSO IS NOT DISPUTED,
THAT ANY ORDER OF THE DISTRICT COURT PURPORTING TO REQUIRE PETITIONER'S
RESTORATION WOULD MEAN THAT HE IS ENTITLED TO DISPLACE ONE OF THOSE
VETERANS. 

SINCE IN MY VIEW REGULATION A-1 IS VALID, REGARDLESS OF WHETHER A-1
PLUS SHOULD STAND, AND SINCE ON THE FACTS NOW BEFORE US REGULATION A-1
IS SUFFICIENT TO EXCLUDE PETITIONER FROM RESTORATION AT THIS TIME, I DO
NOT THINK HE HAS MADE A SUFFICIENT SHOWING TO CALL FORTH THE EXERCISE
OF OUR DISCRETIONARY POWER IN THIS PROCEEDING TO REQUIRE THE COMMISSION
TO REFORMULATE THE REGULATIONS.  UPON THE SHOWING MADE THE CASE IS NOT
ONE APPROPRIATE, IN MY JUDGMENT, FOR APPLICATION OF THE DISCRETIONARY
REMEDY OF A DECLARATORY JUDGMENT. 

FN1  DEPENDING UPON WHETHER SEC. 8 OF THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940, 54 STAT. 890, 50 U.S.C. APP. SEC. 308, REQUIRING
RESTORATION TO EMPLOYMENT AND FORBIDDING DISCHARGE WITHOUT CAUSE FOR
ONE YEAR, HAS BEEN QUALIFIED BY THE LATER ENACTMENT OF SEC. 12 OF THE
VETERANS' PREFERENCE ACT, 58 STAT. 390, 5 U.S.C. (SUPP. V, 1946) SEC.
861, QUOTED IN THE COURT'S OPINION, PARTICULARLY THE SECOND PROVISO. 
SEE NOTE 2. 

FN2  THE SECOND PROVISO, CF. NOTE 1, SPECIFIES THAT PREFERENCE
EMPLOYEES (I.E., VETERANS) WITH EFFICIENCY RATINGS OF "GOOD" OR BETTER
SHALL BE RETAINED IN PREFERENCE TO "ALL OTHER COMPETING EMPLOYEES," A
DESIGNATION CERTAINLY OF THE MOST COMPREHENSIVE SCOPE.  THE VERY TERMS
OF THE SECTION APPEAR THUS TO PLACE MUCH GREATER STRESS UPON EFFICIENCY
RATINGS THAN UPON LENGTH OF SERVICE. 

FN3  THE PRACTICE IN RELATION TO THESE POSITIONS HAS BEEN TO WITHHOLD
EFFICIENCY RATINGS, IN THIS CASE, FOR A PERIOD OF SIX MONTHS, AND THEN
TO AWARD THEM ON THE BASIS OF ACTUAL PERFORMANCE. 

FN4  ORDINARILY, OF COURSE, RIGHTS ARE TO BE DETERMINED AS OF THE
TIME THE INTERESTS INVOLVED ARE ADVERSELY AFFECTED.  BUT IT WOULD SEEM
HARDLY CONSISTENT WITH THE LEGISLATIVE SCHEME THAT EMPLOYEES WITH
DEFERRED STATUS COULD DEFEAT THE USE OF A REASONABLE PERIOD TO
DETERMINE THE VETERAN'S EFFICIENCY RATING BY ACTUAL PERFORMANCE.  IN
ANY EVENT, THE DISCRETIONARY DECLARATORY JUDGMENT REMEDY SHOULD NOT BE
APPLIED TO OUST PREFERENCE EMPLOYEES ENTITLED TO PRIORITY OVER OTHERS,
EVEN THOUGH THEIR STATUS AS PREFERENCE EMPLOYEES IS ESTABLISHED AFTER
TRIAL BUT BEFORE FINAL DISPOSITION OF THE CAUSE ON APPELLATE REVIEW. 
..END :








UNITED STATES V. DISTRICT COURT, 334 U.S. 258 


NO. 527.  ARGUED APRIL 19-20, 1948.  - DECIDED MAY 24, 1948.  - 164 F.2D
159, REVERSED. 


AFTER A CIRCUIT COURT OF APPEALS HAS HEARD AND DETERMINED AN APPEAL IN
AN ANTITRUST CASE CERTIFIED TO IT BY THIS COURT UNDER THE ACT OF JUNE
9, 1944(BECAUSE OF WANT AT THE TIME OF A QUORUM OF JUSTICES OF THIS
COURT QUALIFIED TO PARTICIPATE IN THE CONSIDERATION OF THE CASE), THE
CIRCUIT COURT OF APPEALS HAS JURISDICTION TO ISSUE A WRIT OF MANDAMUS
TO COMPEL THE DISTRICT COURT TO COMPLY WITH ITS MANDATE - EVEN THOUGH
THE TERM DURING WHICH THE CIRCUIT COURT OF APPEALS ISSUED ITS MANDATE
TO THE DISTRICT COURT HAS EXPIRED AND EVEN THOUGH IT BE ASSUMED
ARGUENDO THAT ALL FURTHER APPEALS IN THE CASE WOULD COME TO THIS
COURT.  PP. 259-265. 

(A)  THE BROAD POWER CONFERRED UPON THE FEDERAL COURTS BY SEC. 262 OF
THE JUDICIAL CODE INCLUDES THE POWER TO ISSUE A WRIT OF MANDAMUS EITHER
IN EXERCISE OF APPELLATE JURISDICTION OR IN AID OF APPELLATE
JURISDICTION.  P. 263. 

(B)  THE FACT THAT MANDAMUS IS CLOSELY CONNECTED WITH THE APPELLATE
POWER DOES NOT NECESSARILY MEAN THAT THE POWER TO ISSUE IT IS ABSENT
WHERE THERE IS NO EXISTING OR FUTURE, BUT ONLY A PAST, APPELLATE
JURISDICTION TO WHICH IT CAN RELATE.  P. 263. 

(C)  A HIGH FUNCTION OF MANDAMUS IS TO KEEP A LOWER TRIBUNAL FROM
INTERPOSING UNAUTHORIZED OBSTRUCTIONS TO ENFORCEMENT OF A JUDGMENT OF A
HIGHER COURT.  P. 264. 

(D)  THE ACT OF JUNE 9, 1944, GAVE THE CIRCUIT COURT OF APPEALS THE
FULL AMPLITUDE OF JUDICIAL POWER TO DEAL WITH A CAUSE CERTIFIED TO IT
THEREUNDER - EVEN THOUGH IT BE ASSUMED ARGUENDO THAT ANY FURTHER
APPEALS IN THE CASE WOULD COME TO THIS COURT.  PP. 264-265. 

UNITED STATES V. UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

THE CIRCUIT COURT OF APPEALS DISMISSED A PETITION FOR A WRIT OF
MANDAMUS TO REQUIRE THE DISTRICT COURT TO VACATE A PORTION OF ITS
JUDGMENT IN AN ANTITRUST CASE CERTIFIED BY THIS COURT TO THE CIRCUIT
COURT OF APPEALS UNDER THE ACT OF JUNE 9, 1944, 58 STAT. 272, AND
REMANDED BY THE LATTER TO THE DISTRICT COURT.  164 F.2D 159.  THIS
COURT GRANTED CERTIORARI, 333 U.S. 841.  REVERSED, P. 265. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT A PROCEEDING AGAINST THE ALUMINUM COMPANY
OF AMERICA (ALCOA) AND OTHERS TO PREVENT AND RESTRAIN CERTAIN
VIOLATIONS OF THE SHERMAN ACT.  26 STAT. 209, AS AMENDED, 15 U.S.C.
SECS. 1, 2, 4.  AFTER TRIAL THE DISTRICT COURT DISMISSED THE
COMPLAINT.  44 F.SUPP.  97.  THE CASE CAME HERE BY APPEAL, AFTER WHICH
WE ASCERTAINED THAT DUE TO THE DISQUALIFICATION OF FOUR JUSTICES TO SIT
IN THE CASE, WE WERE WITHOUT A QUORUM.  ACCORDINGLY, WE TRANSFERRED THE
CASE TO A SPECIAL DOCKET AND POSTPONED FURTHER PROCEEDINGS IN IT UNTIL
SUCH TIME AS THERE WAS A QUORUM OF JUSTICES QUALIFIED TO SIT IN IT.
320 U.S. 708.  THEREAFTER CONGRESS AMENDED THE STATUTE WHICH PROVIDES
FOR A DIRECT APPEAL TO THIS COURT FROM THE DISTRICT COURT IN ANTITRUST
CASES.  THE ACT OF JUNE 9, 1944, C. 239, 58 STAT. 272, 15 U.S.C. (SUPP.
V, 1946) SEC. 29, PASSED TO MEET THE CONTINGENCY OF THE LACK OF A
QUORUM HERE, PROVIDES:  FN1 

"IN EVERY SUIT IN EQUITY BROUGHT IN ANY DISTRICT COURT OF THE UNITED
STATES UNDER ANY OF SAID ACTS, WHEREIN THE UNITED STATES IS
COMPLAINANT, AN APPEAL FROM THE FINAL DECREE OF THE DISTRICT COURT WILL
LIE ONLY TO THE SUPREME COURT AND MUST BE TAKEN WITHIN SIXTY DAYS FROM
THE ENTRY THEREOF:  PROVIDED, HOWEVER, THAT IF, UPON ANY SUCH APPEAL,
IT SHALL BE FOUND THAT, BY REASON OF DISQUALIFICATION, THERE SHALL NOT
BE A QUORUM OF JUSTICES OF THE SUPREME COURT QUALIFIED TO PARTICIPATE
IN THE CONSIDERATION OF THE CASE ON THE MERITS, THEN, IN LIEU OF A
DECISION BY THE SUPREME COURT, THE CASE SHALL BE IMMEDIATELY CERTIFIED
BY THE SUPREME COURT TO THE CIRCUIT COURT OF APPEALS OF THE CIRCUIT IN
WHICH IS LOCATED THE DISTRICT IN WHICH THE SUIT WAS BROUGHT WHICH COURT
SHALL THEREUPON HAVE JURISDICTION TO HEAR AND DETERMINE THE APPEAL IN
SUCH CASE, AND IT SHALL BE THE DUTY OF THE SENIOR CIRCUIT JUDGE OF SAID
CIRCUIT COURT OF APPEALS, QUALIFIED TO PARTICIPATE IN THE CONSIDERATION
OF THE CASE ON THE MERITS, TO DESIGNATE IMMEDIATELY THREE CIRCUIT
JUDGES OF SAID COURT, ONE OF WHOM SHALL BE HIMSELF AND THE OTHER TWO OF
WHOM SHALL BE THE TWO CIRCUIT JUDGES NEXT IN ORDER OF SENIORITY TO
HIMSELF, TO HEAR AND DETERMINE THE APPEAL IN SUCH CASE AND IT SHALL BE
THE DUTY OF THE COURT, SO COMPRISED, TO ASSIGN THE CASE FOR ARGUMENT AT
THE EARLIEST PRACTICABLE DATE AND TO HEAR AND DETERMINE THE SAME, AND
THE DECISION OF THE THREE CIRCUIT JUDGES SO DESIGNATED, OR OF A
MAJORITY IN NUMBER THEREOF, SHALL BE FINAL AND THERE SHALL BE NO REVIEW
OF SUCH DECISION BY APPEAL OR CERTIORARI OR OTHERWISE. 

"IF, BY REASON OF DISQUALIFICATION, DEATH OR OTHERWISE, ANY OF SAID
THREE CIRCUIT JUDGES SHALL BE UNABLE TO PARTICIPATE IN THE DECISION OF
SAID CASE, ANY SUCH VACANCY OR VACANCIES SHALL BE FILLED BY THE SENIOR
CIRCUIT JUDGE BY DESIGNATING ONE OR MORE OTHER CIRCUIT JUDGES OF THE
SAID CIRCUIT NEXT IN ORDER OF SENIORITY AND, IF THERE BE NONE SUCH
AVAILABLE, HE SHALL FILL ANY SUCH VACANCY OR VACANCIES BY DESIGNATING
ONE OR MORE CIRCUIT JUDGES FROM ANOTHER CIRCUIT OR CIRCUITS,
DESIGNATING, IN EACH CASE, THE OLDEST AVAILABLE CIRCUIT JUDGE, IN ORDER
OF SENIORITY, IN THE CIRCUIT FROM WHICH HE IS SELECTED, SUCH
DESIGNATION TO BE ONLY WITH THE CONSENT OF THE SENIOR CIRCUIT JUDGE OF
ANY SUCH OTHER CIRCUIT. 

"THIS ACT SHALL APPLY TO EVERY CASE PENDING BEFORE THE SUPREME COURT
OF THE UNITED STATES ON THE DATE OF ITS ENACTMENT." 

THEREUPON WE CERTIFIED THE CAUSE TO THE CIRCUIT COURT OF APPEALS FOR
THE SECOND CIRCUIT.  322 U.S. 716.  THAT COURT HEARD THE CASE,
SUSTAINED CHARGES OF MONOPOLY AGAINST ALCOA, REVERSED THE JUDGMENT OF
DISMISSAL, AND REMANDED THE CAUSE FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH ITS OPINION.  148 F.2D 416.  IT LEFT OPEN THE
QUESTION OF THE REMEDIES TO BE APPLIED.  NEARLY FIVE YEARS HAD PASSED
SINCE THE EVIDENCE WAS CLOSED, WAR HAD INTERVENED, NEW PLANTS HAD BEEN
CONSTRUCTED BY THE GOVERNMENT, AND THEIR DISPOSITION UNDER THE SURPLUS
PROPERTY ACT OF 1944, 58 STAT. 765, 50 U.S.C.A. SEC. 1611, WOULD AFFECT
THE COMPETITIVE SITUATION IN THE INGOT MARKET.  PETITIONER HAD ASKED
FOR ALCOA'S DISSOLUTION.  BUT THAT QUESTION WAS DEFERRED UNTIL ALCOA'S
POSITION IN THE INDUSTRY AFTER THE WAR WAS KNOWN.  148 F.2D PP. 445
447. 

ON REMAND OF THE CAUSE THE DISTRICT COURT ENTERED ITS JUDGMENT ON THE
MANDATE ON APRIL 23, 1946.  IT ENJOINED CERTAIN PRACTICES AND RETAINED
JURISDICTION OF THE CAUSE UNTIL AFTER THE SURPLUS PROPERTY
ADMINISTRATOR SHALL HAVE PROPOSED A PLAN FOR DISPOSITION OF THE
GOVERNMENT-OWNED ALUMINUM PLANTS OR FACILITIES, IN ORDER THAT THE
ATTORNEY GENERAL MIGHT INSTITUTE PROCEEDINGS FOR THE DISSOLUTION OR
PARTIAL DISSOLUTION OF ALCOA OR FOR THE ENFORCEMENT OF SUCH PLAN IF IT
WILL ESTABLISH COMPETITIVE CONDITIONS IN THE INDUSTRY OR FOR SUCH OTHER
RELIEF AS WILL ESTABLISH THEM; "AND FOR THE PURPOSE OF ENABLING
ALUMINUM COMPANY TO APPLY TO THIS COURT FOR A DETERMINATION OF THE
QUESTION WHETHER IT STILL HAS A MONOPOLY OF THE ALUMINUM INGOT MARKET
IN THE UNITED STATES." 

PURSUANT TO THE QUOTED PROVISION ALCOA FILED A PETITION IN THE
DISTRICT COURT PRAYING THAT A FINAL JUDGMENT BE ENTERED ADJUDICATING
THAT IT NO LONGER HAS A MONOPOLY OF THE ALUMINUM INGOT MARKET IN THE
UNITED STATES AND THAT AS A CONSEQUENCE COMPETITIVE CONDITIONS IN THE
INDUSTRY HAVE BEEN RESTORED.  THE MOTION OF THE UNITED STATES TO
DISMISS THE PETITION WAS DENIED AND THE QUESTION WHETHER ALCOA STILL
HAD A MONOPOLY WAS SET FOR TRIAL.  THE UNITED STATES THEREUPON FILED A
PETITION FOR A WRIT OF MANDAMUS IN THE CIRCUIT COURT OF APPEALS TO
REQUIRE THE DISTRICT JUDGE TO VACATE SO MUCH OF ITS JUDGMENT OF APRIL
23, 1946, AS RESERVED JURISDICTION TO ENABLE ALCOA TO APPLY FOR A
DETERMINATION WHETHER IT STILL HAS A MONOPOLY, AND TO DISMISS THE
PETITION OF ALCOA. 

THE CIRCUIT COURT OF APPEALS DISMISSED THE PETITION FOR MANDAMUS. 
164 F.2D 159.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED TO SETTLE THE IMPORTANT QUESTION UNDER THE ACT. 

THE CIRCUIT COURT OF APPEALS CONCLUDED THAT ITS POWER TO ISSUE THE
WRIT OF MANDAMUS EXISTS ONLY AS AN INCIDENT TO ITS JURISDICTION TO
ENTERTAIN AN APPEAL FROM A JUDGMENT OF THE DISTRICT COURT.  IT READ THE
ACT OF JUNE 9, 1944, AS CONFINING ITS JURISDICTION TO THE DETERMINATION
OF THE APPEAL WHICH IT HAD HEARD UNDER OUR CERTIFICATE.  MOREOVER,
CONTROL OVER ITS MANDATE ENDED WITH THE END OF THE TERM DURING WHICH
THE MANDATE WENT DOWN.  FN2  THE COURT THEREFORE CONCLUDED THAT IT HAD
NO POWER TO ISSUE THE WRIT. 

WE PUT TO ONE SIDE THE QUESTION WHETHER ANOTHER APPEAL IN THE CASE
WOULD BE DECIDED BY THE CIRCUIT COURT OF APPEALS OR BY THIS COURT, NOW
THAT THERE IS A QUORUM OF JUSTICES QUALIFIED TO SIT IN IT.  NO MATTER
HOW THAT QUESTION WERE RESOLVED, IT IS OUR OPINION THAT THE CIRCUIT
COURT OF APPEALS HAS JURISDICTION IN THIS MANDAMUS PROCEEDING. 

THE FEDERAL COURTS "SHALL HAVE POWER TO ISSUE ALL WRITS NOT
SPECIFICALLY PROVIDED FOR BY STATUTE, WHICH MAY BE NECESSARY FOR THE
EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND AGREEABLE TO THE USAGES
AND PRINCIPLES OF LAW."  IT WAS EARLY RECOGNIZED THAT THE POWER TO
ISSUE A MANDAMUS EXTENDED TO CASES WHERE ITS ISSUANCE WAS EITHER AN
EXERCISE OF APPELLATE JURISDICTION OR IN AID OF APPELLATE
JURISDICTION.  SEE MARBURY V. MADISON, 1 CRANCH 137, 175; EX PARTE
CRANE, 5 PET. 190.  THAT POWER PROTECTS THE APPELLATE JURISDICTION
WHICH MIGHT BE OTHERWISE DEFEATED AND EXTENDS TO SUPPORT AN ULTIMATE
POWER OF REVIEW, THOUGH IT NOT BE IMMEDIATELY AND DIRECTLY INVOLVED. 
MCCLELLAN V. CARLAND, 217 U.S. 268.  EX PARTE UNITED STATES, 287 U.S.
241, 246.  IN THAT CATEGORY WILL OFTEN FALL CASES INVOLVING ISSUANCE OF
MANDAMUS REQUIRING THE LOWER COURT TO ENFORCE THE JUDGMENT OF THE
APPELLATE COURT.  DELAWARE, L. & W.R. CO. V. RELLSTAB, 276 U.S. 1, 5. 

BUT THE FACT THAT MANDAMUS IS CLOSELY CONNECTED WITH THE APPELLATE
POWER DOES NOT NECESSARILY MEAN THAT THE POWER TO ISSUE IT IS ABSENT
WHERE THERE IS NO EXISTING OR FUTURE APPELLATE JURISDICTION TO WHICH IT
CAN RELATE.  CF. CHICKAMING V. CARPENTER, 106 U.S. 663, 665.  IN RE
WASHINGTON & GEORGETOWN R. CO., 140 U.S. 91, IS A CASE IN POINT.  THE
LOWER COURT IN VIOLATION OF THE MANDATE OF THIS COURT ALLOWED INTEREST
ON A JUDGMENT.  THE AMOUNT OF THE INTEREST WAS TOO SMALL TO BE THE
SUBJECT OF A WRIT OF ERROR FROM THIS COURT.  IT WAS HELD THAT MANDAMUS
WAS THE PROPER REMEDY TO ENFORCE COMPLIANCE WITH THE MANDATE.  AND SEE
CITY BANK V. HUNTER, 152 U.S. 512, 515.  IT IS, INDEED, A HIGH FUNCTION
OF MANDAMUS TO KEEP A LOWER TRIBUNAL FROM INTERPOSING UNAUTHORIZED
OBSTRUCTIONS TO ENFORCEMENT OF A JUDGMENT OF A HIGHER COURT.  DELAWARE,
L. & W.R. CO. V. RELLSTAB, SUPRA.  THAT FUNCTION MAY BE AS IMPORTANT IN
PROTECTING A PAST EXERCISE OF JURISDICTION AS IN SAFEGUARDING A PRESENT
OR FUTURE ONE.  WHEN CONGRESS AUTHORIZED "THE CASE" TO BE CERTIFIED TO
THE CIRCUIT COURT OF APPEALS, IT EXCEPTED NONE OF THE POWERS OF THAT
COURT WHICH MIGHT BE BROUGHT TO BEAR ON THE LITIGATION.  THOSE POWERS
INCLUDE THE POWER TO ISSUE MANDAMUS TO PROTECT THE MANDATE OF THE
CIRCUIT COURT OF APPEALS, EVEN THOUGH WE ASSUME ARGUENDO THAT ALL
FURTHER APPEALS IN THE CASE WOULD COME HERE. 

THE CIRCUIT COURT OF APPEALS SEEMS TO HAVE BEEN INFLUENCED TO THE
OTHER VIEW BY THE FEELING THAT THE QUESTION PRESENTED BY THE MANDAMUS
CUTS SO WIDE A SWATHE IN THE LITIGATION THAT IT SHOULD HOLD ITS HAND. 
ITS POSITION WAS THAT THE ISSUE RAISED BY THE PETITION FOR MANDAMUS HAD
AN IMPORTANT RELATION TO THE RESERVED PROBLEM OF DISSOLUTION, THAT THE
JUDGMENT ON DISSOLUTION WOULD IN ITS VIEW EVENTUALLY COME HERE ON
APPEAL, THAT ANY RULING BY IT ON THE MANDAMUS WOULD THEREFORE LIMIT OUR
FREEDOM TO DEAL WITH THE DISSOLUTION ISSUE AS, IF, AND WHEN IT GOT
HERE. 

THOSE CONSIDERATIONS MAY BE OF LARGE IMPORTANCE IN THE TOTALITY OF
THIS PROCEEDING, ONCE WE ACCEPT THE PREMISE OF THE CIRCUIT COURT OF
APPEALS THAT IT WILL HAVE NOTHING TO DO WITH ANY OTHER APPEALS IN THE
CASE.  BUT THEY DO NOT SEEM TO US GERMANE TO THE QUESTION WHETHER THE
CIRCUIT COURT OF APPEALS HAS THE POWER TO ENFORCE OBEDIENCE TO ITS
MANDATE.  WE THINK THE ACT OF JUNE 9, 1944, GAVE THE CIRCUIT COURT OF
APPEALS THE FULL AMPLITUDE OF JUDICIAL POWER TO DEAL WITH THE CAUSE
WHICH WE CERTIFIED.  THAT POWER DOES NOT CONTRACT WITH THE IMPORTANCE
OR GRAVITY OF THE QUESTION PRESENTED.  THE POWER TO COMPEL OBEDIENCE
WITH THE MANDATE TURNS ON WHETHER THE LOWER COURT HAS OBSTRUCTED
ENFORCEMENT OF IT, NOT ON THE COLLATERAL REPERCUSSIONS WHICH
ENFORCEMENT MAY ENTAIL.  REVERSED. 

FN1  SEE H.R. REP. NO. 1317, 78TH CONG., 2D SESS.; SEN. REP. NO. 890,
78TH CONG., 2D SESS. 

FN2  THE TERM OF COURT IN WHICH THE MANDATE ISSUED EXPIRED SEPTEMBER
30, 1945, ON WHICH DAY THE COURT LOST POWER TO CHANGE IT EXCEPT AS TO
MATTERS OF FORM.  SEE FAIRMONT CREAMERY CO. V. MINNESOTA, 275 U.S. 70. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

WHEN THIS CASE ORIGINALLY CAME HERE BY APPEAL, AN EXTRAORDINARILY
RARE, IF NOT UNIQUE, SITUATION IN THE HISTORY OF THE COURT PRECLUDED
ITS CONSIDERATION FOR WANT OF A QUALIFIED QUORUM.  THE IMPASSE WAS MET
BY THE SPECIAL JURISDICTIONAL ACT OF JUNE 9, 1944, 58 STAT. 272, 15
U.S.C. SEC. 29.  FOR REASONS THAT SEEM TO ME TOO OBVIOUS TO NEED
SPELLING OUT, THAT ACT SHOULD BE INTERPRETED AS TRANSFERRING TO THE
CIRCUIT COURT OF APPEALS THE CASE AND NOT MERELY A STAGE IN ITS
DISPOSITION IF THE CONGRESSIONAL LANGUAGE REASONABLY PERMITS THE ACT TO
BE SO READ.  SINCE IT CAN BE SO READ I DO SO READ IT AND CONCLUDE THAT
THE WHOLE APPELLATE PROCESS IN THIS CASE WAS VESTED IN THE CIRCUIT
COURT OF APPEALS, REGARDLESS OF THE PIECEMEAL EXERCISE OF THAT
PROCESS.  I FIND SUCH A CONSTRUCTION OF THE ACT OF JUNE 9, 1944, FREER
FROM DIFFICULTIES THAN SOME OF THE TECHNICAL QUESTIONS PERTAINING TO
MANDAMUS THAT ARISE ON THE VIEW TAKEN BY THE COURT. 
..END :























PRICE V. JOHNSTON, 334 U.S. 266 


NO. 111.  ARGUED DECEMBER 16, 1947.  - DECIDED MAY 24, 1948.  - 159 F.2D
234 AND 161 F.2D 705, REVERSED. 


1.  UNDER SEC. 262 OF THE JUDICIAL CODE, A CIRCUIT COURT OF APPEALS
HAS POWER, EXERCISABLE IN THE SOUND DISCRETION OF THE COURT, TO ISSUE
AN ORDER, IN THE NATURE OF A WRIT OF HABEAS CORPUS, COMMANDING THAT A
PRISONER BE BROUGHT BEFORE THE COURT FOR THE PURPOSE OF ARGUING HIS OWN
APPEAL IN A CASE INVOLVING HIS LIFE OR LIBERTY.  PP. 278-286. 

(A)  AN ORDER REQUIRING THE PRESENCE OF A PRISONER BEFORE A CIRCUIT
COURT OF APPEALS TO ARGUE HIS OWN APPEAL IS ONE IN THE NATURE OF A WRIT
OF HABEAS CORPUS; AND, AS SUCH, CLEARLY FALLS WITHIN THE SCOPE OF SEC.
262.  P. 279. 

(B)  SUCH AN ORDER SATISFIES THE BASIC REQUIREMENT OF SEC. 262 THAT
IT BE NECESSARY TO THE COMPLETE EXERCISE BY THE COURT OF AN APPELLATE
JURISDICTION ALREADY EXISTING.  P. 279. 

(C)  A WRIT OF HABEAS CORPUS OF THIS NATURE IS NOT LIMITED TO
CIRCUMSTANCES WHERE "NECESSARY" IN THE SENSE THAT THE COURT COULD NOT
OTHERWISE PHYSICALLY DISCHARGE ITS APPELLATE DUTIES, BUT IS AVAILABLE
IN THOSE EXCEPTIONAL CASES WHERE ITS USE AS AN AID TO AN APPEAL OVER
WHICH THE COURT HAS JURISDICTION MAY FAIRLY BE SAID TO BE REASONABLY
NECESSARY IN THE INTEREST OF JUSTICE.  P. 279. 

(D)  SINCE ORDINARILY A COURT CAN NOT DESIGNATE COUNSEL FOR A
PRISONER WHO HAS NO LAWYER AND WHO DESIRES THAT NONE BE APPOINTED TO
REPRESENT HIM, AN ARRANGEMENT IN SUCH CASE FOR THE PRISONER'S PRESENCE
AND PARTICIPATION AT THE ORAL ARGUMENT CAN BE SAID TO BE "REASONABLY
NECESSARY IN THE INTEREST OF JUSTICE."  P. 280. 

(E)  THE FORMS OF THE HABEAS CORPUS WRIT AUTHORIZED BY SEC. 262 ARE
NOT ONLY THOSE WHICH WERE RECOGNIZED IN THIS COUNTRY IN 1789, WHEN THE
ORIGINAL JUDICIARY ACT CONTAINING THE SUBSTANCE OF THIS SECTION CAME
INTO EXISTENCE.  P. 282. 

(F)  WHERE PRODUCTION OF A PRISONER BEFORE AN APPELLATE COURT IS
ESSENTIAL TO PROPER DISPOSITION OF THE CASE ON APPEAL, ISSUANCE OF A
WRIT OF HABEAS CORPUS FOR THAT PURPOSE IS "AGREEABLE TO THE USAGES AND
PRINCIPLES OF LAW" WITHIN THE MEANING OF SEC. 262.  PP. 281-284. 

2.  THE POWER TO ISSUE SUCH A WRIT IS DISCRETIONARY; AND THIS
DISCRETION IS TO BE EXERCISED WITH THE BEST INTERESTS OF BOTH THE
PRISONER AND THE GOVERNMENT IN MIND.  P. 284. 

3.  THE RIGHT GIVEN BY SEC. 272 OF THE JUDICIAL CODE TO PARTIES IN
ALL THE COURTS OF THE UNITED STATES TO "PLEAD AND MANAGE THEIR CAUSES
PERSONALLY" IS NOT UNQUALIFIED AS TO PRISONERS DESIRING TO CONDUCT
THEIR OWN ORAL ARGUMENTS IN APPELLATE COURTS AND MAY BE CIRCUMSCRIBED
AS TO THEM WHERE REASONABLE NECESSITY SO DICTATES.  PP. 285-286. 

4.  AFTER THREE UNSUCCESSFUL ATTEMPTS BY HABEAS CORPUS PROCEEDINGS TO
SECURE RELEASE FROM ALLEGEDLY UNLAWFUL IMPRISONMENT, PETITIONER
INSTITUTED A FOURTH PROCEEDING, ALLEGING FOR THE FIRST TIME THAT THE
PROSECUTION HAD KNOWINGLY USED FALSE TESTIMONY TO OBTAIN HIS
CONVICTION.  WITHOUT DENYING THIS ALLEGATION OR QUESTIONING ITS
SUFFICIENCY, THE GOVERNMENT ASKED THAT THE FOURTH PETITION BE DENIED,
APPARENTLY ON THE GROUND THAT THE ISSUES RAISED WERE KNOWN TO THE
PETITIONER WHEN HE FILED THE EARLIER PETITIONS AND THAT THE FOURTH
PETITION WAS AN ABUSE OF THE WRIT OF HABEAS CORPUS.  WITHOUT A HEARING
AND WITHOUT STATING ANY REASONS FOR ITS ACTION, THE DISTRICT COURT
DISMISSED THE FOURTH PETITION.  HELD: IT ERRED IN SO DOING AND THE
CAUSE IS REMANDED TO IT FOR FURTHER PROCEEDINGS.  PP. 269-278, 286
294. 

(A)  SINCE THE THREE PRIOR APPLICATIONS DID NOT RAISE THE ISSUE AS TO
THE PROSECUTION KNOWINGLY USING FALSE TESTIMONY TO OBTAIN PETITIONER'S
CONVICTION, THE THREE PRIOR REFUSALS TO DISCHARGE PETITIONER CAN HAVE
NO BEARING OR WEIGHT ON THE DISPOSITION TO BE MADE OF THE NEW MATTER
RAISED IN THE FOURTH PETITION.  SALINGER V. LOISEL, 265 U.S. 224, AND
WONG DOO V. UNITED STATES, 265 U.S. 239, DISTINGUISHED.  PP. 287-290. 

(B)  ALTHOUGH THE RECORD IN THE PROCEEDING UPON PETITIONER'S FIRST
PETITION FOR HABEAS CORPUS INDICATES THAT PETITIONER THEN HAD KNOWLEDGE
OF THE FACTS WHICH FORM THE BASIS, AT LEAST IN PART, OF THE DUE PROCESS
ALLEGATION MADE IN THE FOURTH PETITION, IT CAN NOT BE ASSUMED THAT
PETITIONER HAS ACQUIRED NO NEW OR ADDITIONAL INFORMATION, SINCE THE
TIME OF THE FIRST PROCEEDING, THAT MIGHT INDICATE FRAUDULENT CONDUCT ON
THE PART OF THE PROSECUTING ATTORNEYS.  P. 290. 

(C)  WHETHER PETITIONER DOES OR DOES NOT HAVE ANY NEW INFORMATION IS
A MATTER WHICH SHOULD BE DETERMINED IN THE FIRST INSTANCE BY THE
DISTRICT COURT, AND ON WHICH PETITIONER IS ENTITLED TO BE HEARD EITHER
AT A HEARING OR THROUGH AN AMENDMENT OR ELABORATION OF HIS PLEADINGS. 
P. 291. 

(D)  ASSUMING THAT PETITIONER DID HAVE PRIOR KNOWLEDGE OF ALL THE
FACTS UPON WHICH THE ALLEGATION IN QUESTION IS BASED, IT DOES NOT
NECESSARILY FOLLOW THAT THE FOURTH PETITION SHOULD BE DISMISSED, SINCE
HE MAY HAVE EXCUSE FOR FAILURE PREVIOUSLY TO ASSERT HIS RIGHTS.  P.
291. 

(E)  THE BURDEN WAS NOT ON THE PETITIONER TO ALLEGE AFFIRMATIVELY IN
THE FIRST INSTANCE THAT HE HAD ACQUIRED NEW INFORMATION OR THAT HE HAD
ADEQUATE REASONS FOR NOT RAISING SOONER THE ISSUE OF THE KNOWING USE OF
FALSE TESTIMONY.  IT WAS ENOUGH IF HE PRESENTED AN ALLEGATION AND
SUPPORTING FACTS WHICH, IF BORNE OUT BY PROOF, WOULD ENTITLE HIM TO
RELIEF.  PP. 291-292. 

(F)  THERE CAN NOT BE IMPOSED ON UNLEARNED PRISONERS WHO ACT AS THEIR
OWN COUNSEL IN HABEAS CORPUS PROCEEDINGS THE SAME HIGH STANDARDS OF THE
LEGAL ART WHICH MAY BE DEMANDED OF MEMBERS OF THE LEGAL PROFESSION,
ESPECIALLY WHERE THE IMPOSITION OF SUCH STANDARDS WOULD HAVE A
RETROACTIVE AND PREJUDICIAL EFFECT ON THE PRISONER'S INARTISTICALLY
DRAWN PETITION.  P. 292. 

(G)  IF THE GOVERNMENT CHOOSES NOT TO DENY THE ALLEGATION OR TO
QUESTION ITS SUFFICIENCY AND DESIRES INSTEAD TO CLAIM THAT THE PRISONER
HAD ABUSED THE WRIT OF HABEAS CORPUS, IT RESTS WITH THE GOVERNMENT TO
MAKE THAT CLAIM WITH CLARITY AND PARTICULARITY IN ITS RETURN TO THE
ORDER TO SHOW CAUSE.  P. 292. 

(H)  ONCE A PARTICULAR ABUSE OF THE WRIT HAS BEEN ALLEGED, THE
PRISONER HAS THE BURDEN OF ANSWERING THAT ALLEGATION AND OF PROVING
THAT HE HAS NOT ABUSED THE WRIT; AND IF THE ANSWER IS INADEQUATE, THE
COURT MAY DISMISS THE PETITION WITHOUT FURTHER PROCEEDINGS.  P. 292. 

(I)  IF THERE IS A SUBSTANTIAL CONFLICT, A HEARING MAY BE NECESSARY
TO DETERMINE THE FACTS, AND APPROPRIATE FINDINGS AND CONCLUSIONS OF LAW
CAN THEN BE MADE.  IN THIS WAY AN ADEQUATE RECORD MAY BE ESTABLISHED SO
THAT APPELLATE COURTS CAN DETERMINE THE PRECISE BASIS OF THE DISTRICT
COURT'S ACTION, AND THE PRISONER IS GIVEN A FAIRER OPPORTUNITY TO MEET
ALL POSSIBLE OBJECTIONS TO THE FILING OF HIS PETITION.  P. 292. 

(J)  THE PROCEDURE FOLLOWED IN THE DISTRICT COURT IN THE INSTANT
PROCEEDING PRECLUDED A PROPER DEVELOPMENT OF THE ISSUE OF THE ALLEGEDLY
ABUSIVE USE OF THE HABEAS CORPUS WRIT AND DID NOT GIVE PETITIONER A
FAIR OPPORTUNITY TO MEET THIS IMPORTANT ISSUE.  P. 293. 

PRICE V. JOHNSTON, WARDEN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PETITIONER'S FOURTH PETITION FOR A WRIT OF HABEAS CORPUS WAS DENIED
BY THE DISTRICT COURT.  ON APPEAL, THE CIRCUIT COURT OF APPEALS EN BANC
DENIED PETITIONER'S MOTION FOR AN ORDER DIRECTING HIS APPEARANCE FOR
THE PURPOSE OF ORALLY ARGUING HIS CASE, 159 F.2D 234, AND AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT, 161 F.2D 705.  THIS COURT GRANTED
CERTIORARI.  331 U.S. 804.  REVERSED AND REMANDED, P. 294. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE WRIT OF HABEAS CORPUS HAS PLAYED A GREAT ROLE IN THE HISTORY OF
HUMAN FREEDOM.  IT HAS BEEN THE JUDICIAL METHOD OF LIFTING UNDUE
RESTRAINTS UPON PERSONAL LIBERTY.  BUT IN RECENT YEARS THE INCREASED
USE OF THIS WRIT, ESPECIALLY IN FEDERAL COURTS, HAS CREATED MANY
PROCEDURAL PROBLEMS WHICH ARE NOT EASY OF SOLUTION.  THIS CASE INVOLVES
SOME OF THOSE PROBLEMS.  BECAUSE OF THE IMPORTANCE OF THE WRIT AND THE
NECESSITY THAT IT NOT LOSE ITS EFFECTIVENESS IN A PROCEDURAL MORASS, WE
HAVE DEEMED IT WISE TO DEAL WITH THIS CASE AT LENGTH AND TO SET FORTH
FULLY AND EXPLICITLY THE ANSWERS TO THE MATTERS AT ISSUE. 

IN 1938, PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT IN
MICHIGAN UNDER A FOUR-COUNT INDICTMENT CHARGING VIOLATIONS OF THE
FEDERAL BANK ROBBERY STATUTE.  FN1  HE WAS SENTENCED TO IMPRISONMENT
FOR 65 YEARS AND WAS COMMITTED TO THE UNITED STATES PENITENTIARY AT
ALCATRAZ, CALIFORNIA.  HIS EFFORTS TO PROSECUTE AN APPEAL FROM HIS
CONVICTION PROVED FUTILE.  FN2 

SINCE HIS CONFINEMENT AT ALCATRAZ, PETITIONER HAS MADE FOUR SEPARATE
APPLICATIONS FOR WRITS OF HABEAS CORPUS IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.  THE INSTANT PROCEEDING
INVOLVES THE FOURTH OF THESE APPLICATIONS.  INASMUCH AS THE PROBLEMS IN
THIS CASE CAN BEST BE UNDERSTOOD IN LIGHT OF THE ISSUES RAISED IN THE
EARLIER PROCEEDINGS, IT BECOMES NECESSARY TO EXAMINE THE VARIOUS
APPLICATIONS IN SOME DETAIL. 

1.  THE FIRST APPLICATION WAS PREPARED AND FILED IN 1940 BY
PETITIONER, WHO IS NOT A LAWYER.  HE SOUGHT RELEASE MAINLY ON THE
GROUNDS THAT CERTAIN EVIDENCE USED AGAINST HIM AT THE TRIAL HAD BEEN
OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT AND THAT THE TRIAL JUDGE
HAD IMPROPERLY REFUSED TO DISQUALIFY HIMSELF UPON THE FILING OF AN
AFFIDAVIT OF PREJUDICE.  IT IS IMPORTANT TO NOTE THAT THIS APPLICATION
DID NOT ALLEGE THAT THE CONVICTION RESULTED FROM THE PROSECUTION'S
KNOWING USE OF FALSE TESTIMONY.  THE DISTRICT COURT ISSUED AN ORDER TO
SHOW CAUSE, A RETURN WAS MADE, AND THE PETITIONER THEN FILED A TRAVERSE
IN THE FORM OF A "MOTION TO OVERRULE RESPONDENT'S RETURN AND ISSUE
WRIT."  THIS MOTION LIKEWISE FAILED TO AVER THE KNOWING USE OF FALSE
TESTIMONY.  BUT IT DID CALL THE COURT'S ATTENTION TO "TWO DIFFERENT
STATEMENTS" MADE AT THE TRIAL BY THE PROSECUTION'S CHIEF WITNESS, FRED
T. DONNER, AND TO THE "METHODS  ...  USED TO OBTAIN" THIS CHANGE IN
TESTIMONY.  FN3  THERE WAS NO INDICATION GIVEN AS TO WHAT THOSE
"METHODS" WERE.  DONNER'S TESTIMONY AT THE TRIAL WAS ATTACHED AS AN
EXHIBIT, TESTIMONY WHICH REVEALED THAT DONNER HAD GONE TO THE OFFICE OF
THE DISTRICT ATTORNEY AND TALKED TO HIM AND HIS ASSISTANT DURING THE
INTERVAL BETWEEN THE ALLEGEDLY CONFLICTING STATEMENTS.  FN4 

THE DISTRICT COURT THEN APPOINTED COUNSEL FOR PETITIONER AT HIS
REQUEST.  SEVERAL MONTHS LATER, WHEN THE MATTER CAME ON FOR
DETERMINATION, THE COURT ENTERED AN ORDER DENYING THE APPLICATION FOR A
WRIT OF HABEAS CORPUS AND DISMISSING THE PETITION.  NO HEARING WAS
HELD, THE ORDER BEING ENTERED SOLELY ON THE BASIS OF THE PLEADINGS. 
AND NO FINDINGS OF FACT OR CONCLUSIONS OF LAW WERE MADE.  NOR WAS AN
OPINION WRITTEN.  PETITIONER THEREAFTER PROCEEDED PRO SE.  AMONG HIS
VARIOUS LEGAL MANEUVERS, HE MOVED FOR A REHEARING.  HE STATED, AS
GROUNDS FOR THE MOTION, THAT THE COURT ERRED IN REFUSING TO ALLOW HIM
TO APPEAR AND TESTIFY PERSONALLY BEFORE ENTERING THE ORDER AND THAT THE
COURT-APPOINTED ATTORNEY "BLOCKED YOUR PETITIONER FROM FILING AN
AMENDED PETITION TO INCLUDE ADDITIONAL POINTS SO THAT THEY COULD BE
REVIEWED ON APPEAL."  THIS MOTION WAS DENIED. 

PETITIONER PREPARED HIS OWN APPEAL TO THE CIRCUIT COURT OF APPEALS. 
AMONG THE POINTS UPON WHICH HE STATED HE INTENDED TO RELY WAS THE CLAIM
THAT HE HAD BEEN DENIED "A FAIR AND IMPARTIAL TRIAL" BY DONNER'S CHANGE
IN TESTIMONY AFTER TALKING WITH THE DISTRICT ATTORNEY.  BUT THE CIRCUIT
COURT OF APPEALS, IN AFFIRMING THE DISTRICT COURT'S DISPOSITION OF THE
HABEAS CORPUS PETITION, MADE NO REFERENCE TO THIS POINT; ITS OPINION
WAS DEVOTED EXCLUSIVELY TO THE MATTERS RAISED IN THE ORIGINAL
PETITION.  PRICE V. JOHNSTON, 125 F.2D 806. 

INCLUDED IN THE NUMEROUS CLAIMS IN HIS ATTEMPT TO SECURE A WRIT OF
CERTIORARI IN THIS COURT WAS THE REITERATION THAT DONNER'S CHANGE IN
TESTIMONY DEPRIVED HIM OF A FAIR AND IMPARTIAL TRIAL.  ACCORDING TO HIS
WRITTEN ARGUMENT, "IF THIS WAS NOT PERJURED IT WAS BASE CONTRADICTORY
EVIDENCE FOR AFTER THIS WITNESS HAD COMPLETED ALL HIS EVIDENCE HE WAS
THEN TAKEN INTO THE PRIVATE CHAMBERS OF THE UNITED STATES ATTORNEY  ...
AND THERE WAS INSTRUCTED AS TO WHAT TO SAY, FOR HE CAME FROM SAID
OFFICE AND WAS RECALLED TO THE STAND AT THIS SECOND SETTING HE REBUTTED
ALL HIS PRIOR TESTIMONY.  THIS MUST BE EITHER CLASSED AS A CONSPIRACY
FORCING A WITNESS TO CHANGE HIS TESTIMONY EITHER OF WHICH SURELY WOULD
NOT BE GIVING THE APPELLANT THE FAIR AND IMPARTIAL TRIAL TO WHICH HE IS
ENTITLED."  THE GOVERNMENT'S MEMORANDUM IN OPPOSITION DEALT WITH THIS
CONTENTION IN A FOOTNOTE.  IT WAS THERE SAID THAT PETITIONER'S CLAIM
"IS REFUTED BY THE EXCERPT FROM THE TRANSCRIPT OF THE PROCEEDINGS AT
THE TRIAL INTRODUCED AS PART OF PETITIONER'S PLEADINGS.  ...  THE
WITNESS DID NOT REBUT HIS PRIOR TESTIMONY BUT MERELY SUPPLEMENTED IT
WITH A FEW MORE DETAILS AND HE AFFIRMATIVELY STATED THAT HIS DISCUSSION
WITH THE PROSECUTOR DID NOT ASSIST HIM IN HIS SUBSEQUENT TESTIMONY." 
THIS COURT DENIED THE PETITION FOR A WRIT OF CERTIORARI.  PRICE V.
JOHNSTON, 316 U.S. 677; REHEARING DENIED, 316 U.S. 712. 

2.  IN 1942, SEVERAL MONTHS AFTER THE FOREGOING ACTION BY THIS COURT,
PETITIONER PREPARED AND FILED IN THE DISTRICT COURT A SECOND PETITION
FOR A WRIT OF HABEAS CORPUS.  IN THIS PETITION HE SOUGHT RELEASE ON THE
SAME GROUNDS SET FORTH IN HIS FIRST PETITION AS WELL AS ON TWO
PRINCIPAL ADDITIONAL GROUNDS.  THE TWO NEW CLAIMS WERE THAT
PETITIONER'S COUNSEL HAD BEEN ABSENT FROM THE COURTROOM DURING AN
IMPORTANT PART OF THE TRIAL AND THAT PETITIONER HAD NOT HAD COUNSEL AT
THE PRELIMINARY HEARING BEFORE THE UNITED STATES COMMISSIONER.  THE
PETITION, AS AMENDED, CONTAINED NO ALLEGATION THAT FALSE TESTIMONY HAD
BEEN KNOWINGLY USED AT THE TRIAL; NOR DID IT REFER IN ANY WAY TO
DONNER'S ALLEGEDLY INCONSISTENT TESTIMONY.  MOREOVER, NO MENTION OF
SUCH MATTERS WAS MADE BY PETITIONER IN HIS TESTIMONY AT THE HEARING ON
THE WRIT OF HABEAS CORPUS.  FN5 

THE DISTRICT COURT, AT THE CLOSE OF THE HEARING, DISCHARGED THE WRIT. 
ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE SUBSEQUENTLY ENTERED
AND WERE SILENT AS TO ANY QUESTION RELATING TO THE KNOWING USE OF FALSE
TESTIMONY.  THE DISTRICT COURT'S ACTION WAS AFFIRMED ON APPEAL, THE
OPINION OF THE CIRCUIT COURT OF APPEALS BEING DEVOTED TO THE MATTERS
DECIDED BY THE DISTRICT COURT.  PRICE V. JOHNSTON, 144 F.2D 260.  THIS
COURT THEN DENIED A PETITION FOR CERTIORARI, A PETITION WHICH PRESENTED
NO ISSUES DIFFERING FROM THOSE RAISED IN THE LOWER COURTS.  PRICE V.
JOHNSTON, 323 U.S. 789; REHEARING DENIED, 323 U.S. 819. 

3.  PETITIONER'S THIRD PETITION FOR A WRIT OF HABEAS CORPUS WAS
DENIED BY THE DISTRICT COURT ON AUGUST 22, 1945.  THIS DENIAL WAS BASED
ON THE GROUND THAT THE ISSUES RAISED WERE KNOWN TO PETITIONER WHEN HE
FILED THE EARLIER PETITIONS, MAKING THE THIRD PETITION AN ABUSIVE USE
OF THE WRIT OF HABEAS CORPUS.  PRICE V. JOHNSTON, 61 F.SUPP.  995.  FN6
LEAVE TO APPEAL WAS DENIED.  IT IS NOT EVIDENT, HOWEVER, WHAT THE
ISSUES WERE THAT PETITIONER DID RAISE IN THIS PROCEEDING. 

4.  ON JANUARY 2, 1946, PETITIONER FILED HIS FOURTH APPLICATION FOR A
WRIT OF HABEAS CORPUS.  HE ALLEGED THAT HE HAD BEEN DENIED A FAIR AND
IMPARTIAL TRIAL IN THAT, ON THE TRIAL FOR BANK ROBBERY, THE JURY WAS
CONFUSED BY THE PRESENTATION OF EVIDENCE TO SHOW PERJURY BEFORE A
NOTARY PUBLIC, THAT THE COURT WAS NOT JUSTIFIED IN IMPOSING A GENERAL
SENTENCE ON THE FOUR COUNTS OF THE INDICTMENT, AND THAT THE FOURTH
COUNT DID NOT ALLEGE AN OFFENSE.  AFTER AN ORDER TO SHOW CAUSE WAS
ISSUED, PETITIONER AMENDED HIS PETITION TO ALLEGE "THAT THE GOVERNMENT
KNOWINGLY EMPLOYED FALSE TESTIMONY ON THE TRIAL, TO OBTAIN THE
CONVICTION." 

THE RESPONDENT WARDEN, THROUGH THE UNITED STATES ATTORNEY, THEREUPON
FILED HIS RETURN TO THE ORDER TO SHOW CAUSE.  THIS RETURN DID NOT DENY
THE ALLEGATION THAT THE GOVERNMENT KNOWINGLY EMPLOYED FALSE TESTIMONY
AT THE TRIAL.  NOR DID IT QUESTION THE SUFFICIENCY OF THE ALLEGATION OR
THE ABSENCE OF SUPPORTING FACTS.  IT SIMPLY INCORPORATED BY REFERENCE
THE ENTIRE RECORD IN THE THREE PRIOR HABEAS CORPUS PROCEEDINGS AND
ASKED THAT THE FOURTH PETITION BE DENIED ON THE BASIS OF THE DISTRICT
COURT'S OPINION DENYING THE THIRD APPLICATION.  FN7  PETITIONER'S
TRAVERSE STATED THAT THE EARLIER PETITIONS DID NOT CONTAIN SOME OF THE
POINTS PRESENTED IN THE FOURTH PETITION.  IT REPEATED THE ALLEGATIONS
IN THE ORIGINAL PETITION, THOUGH IT MERELY INCORPORATED BY REFERENCE
THE ALLEGATION OF THE AMENDED PETITION THAT THE PROSECUTOR KNOWINGLY
USED FALSE TESTIMONY. 

THE DISTRICT COURT DENIED THE FOURTH PETITION WITHOUT A HEARING AND
WITHOUT OPINION.  IT IS DIFFICULT TO DISCOVER FROM SUCH ACTION THE
PRECISE BASIS OF THE DISTRICT COURT'S DISMISSAL OF THE ALLEGATION IN
QUESTION.  BUT BECAUSE OF THE NATURE OF THE WARDEN'S RETURN, WE SUSPECT
THAT THE COURT THOUGHT THAT THE MATTER WAS KNOWN TO PETITIONER AT THE
TIME OF FILING THE FIRST PETITION AND SHOULD HAVE BEEN URGED AT THAT
TIME.  THERE IS NOTHING WHATEVER TO INDICATE THAT THE DISMISSAL STEMMED
FROM THE COURT'S BELIEF THAT THE ALLEGATION WAS INSUFFICIENT ON ITS
FACE OR THAT IT WAS OBVIOUSLY WITHOUT MERIT. 

ON APPEAL, A PANEL OF THE NINTH CIRCUIT COURT OF APPEALS ORDERED UP
THE ORIGINAL FILES IN PETITIONER'S THREE PREVIOUS APPLICATIONS AND
DIRECTED THAT PETITIONER BE BROUGHT BEFORE THE COURT FOR THE ARGUMENT
OF HIS APPEAL.  AFTER THE ARGUMENT, THE SUBMISSION OF THE CAUSE WAS SET
ASIDE AND THE CASE WAS ASSIGNED FOR HEARING BEFORE THE COURT EN BANC. 
PETITIONER THEN MOVED THE COURT EN BANC FOR AN ORDER DIRECTING HIS
APPEARANCE FOR THE REARGUMENT.  THIS MOTION WAS DENIED ON JANUARY 6,
1947.  IN ITS WRITTEN OPINION, A MAJORITY OF THE COURT HELD THAT
CIRCUIT COURTS OF APPEALS ARE WITHOUT POWER TO ORDER THE PRODUCTION OF
A PRISONER FOR THE ARGUMENT OF HIS APPEAL IN PERSON.  ONE JUDGE
EXPRESSED THE VIEW THAT THE COURT HAD SUCH POWER, BUT CONCURRED IN THE
DENIAL OF THE MOTION AS A MATTER OF DISCRETION.  TWO JUDGES DISSENTED,
STATING THAT THERE WAS POWER TO GRANT THE REQUESTED RELIEF; BUT THEY
DID NOT REACH THE QUESTION OF THE PROPRIETY OF EXERCISING THAT POWER IN
THIS CASE.  159 F.2D 234. 

THE APPEAL WAS THEN CONSIDERED ON THE MERITS ON BRIEFS FILED BY
PETITIONER AND RESPONDENT  FN8 AND ON ORAL ARGUMENT BY AN ASSISTANT
UNITED STATES ATTORNEY.  PETITIONER WAS UNREPRESENTED AT THE ORAL
ARGUMENT.  ON MAY 5, 1947, THE ORDER OF THE DISTRICT COURT DENYING THE
FOURTH PETITION WITHOUT A HEARING WAS AFFIRMED, TWO JUDGES DISSENTING
IN SEPARATE OPINIONS.  161 F.2D 705. 

THE MAJORITY OPINION OF THE CIRCUIT COURT OF APPEALS POINTED OUT
THAT, BY AMENDING HIS FOURTH PETITION TO ALLEGE "THAT THE GOVERNMENT
KNOWINGLY EMPLOYED FALSE TESTIMONY ON THE TRIAL, TO OBTAIN CONVICTION,"
PETITIONER HAD INTERPOSED A WHOLLY NEW GROUND FOR DISCHARGE.  BUT THE
SPECIFIC CIRCUMSTANCES OF THIS CLAIM HAD NOT BEEN DEVELOPED IN THE
DISTRICT COURT.  THE OPINION ACCORDINGLY TREATED THE ALLEGATION AS
THOUGH IT HAD INCORPORATED PETITIONER'S EXPLANATORY STATEMENT IN HIS
APPELLATE BRIEF THAT THE UNITED STATES ATTORNEY, IN THE COURSE OF THE
TRIAL, "DID TAKE THE ONE AND ONLY WITNESS, DONNER, THAT TESTIFIED THAT
THERE HAD BEEN A CRIME COMMITTED, FROM THE WITNESS STAND AFTER HE HAD
TESTIFIED THAT HE COULD NOT SEE ANY GUNS OR PISTOLS DURING THE ROBBERY,
TO THE DISTRICT ATTORNEY'S OFFICE, AND TALKED ABOUT THE EVIDENCE AND
PUT THE WITNESS DONNER BACK ON THE WITNESS STAND TO TESTIFY THAT HE DID
SEE THE PISTOLS, AND DESCRIBED THEM, WHEN HE COULD NOT DO SO AT
FIRST." 

SO CONSTRUING THE ALLEGATION, THE COURT THEN SAID:  "THE RECORDS IN
THESE SEVERAL PROCEEDINGS DISCLOSE THAT THROUGHOUT HIS TRIAL APPELLANT
WAS REPRESENTED BY COUNSEL OF HIS OWN CHOOSING.  AND SINCE HE WAS
HIMSELF PRESENT AT ALL TIMES HE COULD HARDLY HAVE BEEN UNAWARE OF THE
DESCRIBED INCIDENT OR OF ITS IMPLICATIONS, NOR DOES HE MAKE ANY SUCH
CLAIM.  ON THE FACE OF HIS SHOWING IT IS APPARENT HE KNEW AS MUCH ABOUT
THE MISCONDUCT AT THE TIME IT IS SAID TO HAVE OCCURRED AS HE KNOWS
NOW.  YET NO REASON OR EXCUSE IS ATTEMPTED TO BE ADVANCED FOR HIS
FAILURE TO SET IT UP IN ONE OR THE OTHER OF HIS PRIOR PETITIONS."  161
F.2D AT 706-707.  AND IT WAS FURTHER STATED THAT "WHERE THERE HAVE BEEN
REPEATED PETITIONS WITH AN APPARENT HUSBANDING OF GROUNDS THE ONUS MAY
PROPERLY BE CAST ON THE APPLICANT OF SATISFYING THE COURT THAT AN
ABUSIVE USE IS NOT BEING MADE OF THE WRIT."  ID., AT 707.  SINCE
PETITIONER HAD GIVEN NO VALID EXCUSE FOR FAILING TO PRESENT EARLIER THE
ALLEGATION IN QUESTION, THE CONCLUSION WAS REACHED THAT THE DISTRICT
COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE FOURTH PETITION
WITHOUT A HEARING.  REFERENCE WAS MADE IN THIS RESPECT TO SALINGER V.
LOISEL, 265 U.S. 224, AND WONG DOO V. UNITED STATES, 265 U.S. 239. 
WE ISSUED A WRIT OF CERTIORARI TO REVIEW THE IMPORTANT ISSUES THUS
RAISED IN THE TWO OPINIONS OF THE CIRCUIT COURT OF APPEALS.  AND ON
PETITIONER'S MOTION, WE APPOINTED A MEMBER OF THE BAR OF THIS COURT TO
SERVE AS HIS COUNSEL BEFORE US.

                        I. 

WE HOLD THAT POWER IS RESIDENT IN A CIRCUIT COURT OF APPEALS TO
COMMAND THAT A PRISONER BE BROUGHT BEFORE IT SO THAT HE MAY ARGUE HIS
OWN APPEAL IN A CASE INVOLVING HIS LIFE OR LIBERTY.  THAT POWER, WHICH
MAY BE EXERCISED AT THE SOUND DISCRETION OF THE COURT, GROWS OUT OF THE
PORTION OF SEC. 262 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 377, WHICH
PROVIDES THAT "THE SUPREME COURT, THE CIRCUIT COURTS OF APPEALS, AND
THE DISTRICT COURTS SHALL HAVE POWER TO ISSUE ALL WRITS NOT
SPECIFICALLY PROVIDED FOR BY STATUTE, WHICH MAY BE NECESSARY FOR THE
EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND AGREEABLE TO THE USAGES
AND PRINCIPLES OF LAW." 

AN ORDER REQUIRING THE PRESENCE OF A PRISONER BEFORE A CIRCUIT COURT
OF APPEALS TO ARGUE HIS OWN APPEAL IS ONE IN THE NATURE OF A WRIT OF
HABEAS CORPUS.  AS SUCH, IT CLEARLY FALLS WITHIN THE SCOPE OF SEC.
262.  BASIC TO THE POWER OF A CIRCUIT COURT OF APPEALS TO ISSUE A WRIT
OF HABEAS CORPUS UNDER THAT SECTION, OF COURSE, IS THE PENDENCY OF A
PROCEEDING OF AN APPELLATE NATURE TO WHICH THE CONTEMPLATED WRIT IS
AUXILIARY.  WHITNEY V. DICK, 202 U.S. 132.  THE WRIT CANNOT BE ISSUED
BY THAT COURT AS AN INDEPENDENT AND ORIGINAL PROCEEDING; IT CAN ONLY
ISSUE WHERE IT MAY BE NECESSARY TO THE COMPLETE EXERCISE OF AN
APPELLATE JURISDICTION ALREADY EXISTING.  SINCE THE OCCASION FOR
DEMANDING THE PRESENCE OF A PRISONER AT AN ORAL ARGUMENT WOULD ARISE
ONLY WHERE THERE WAS AN APPEAL ALREADY PENDING BEFORE THE COURT, A WRIT
COMPELLING HIS PRESENCE SATISFIES THIS BASIC REQUIREMENT OF SEC. 262. 

MOREOVER, A WRIT OF HABEAS CORPUS OF THIS NATURE CAN ON OCCASION BE
"NECESSARY" FOR THE EXERCISE OF APPELLATE JURISDICTION SO AS TO BE
AUTHORIZED BY SEC. 262.  WE HAVE REFUSED TO INTERPRET THAT SECTION TO
MEAN THAT A CIRCUIT COURT OF APPEALS CAN ISSUE A HABEAS CORPUS WRIT
ONLY IF "NECESSARY" IN THE SENSE THAT THE COURT COULD NOT OTHERWISE
PHYSICALLY DISCHARGE ITS APPELLATE DUTIES.  ADAMS V. UNITED STATES EX
REL. MCCANN, 317 U.S. 269, 273.  RATHER, SEC. 262 HAS BEEN READ SO THAT
THE WRIT MAY BE ISSUED WHERE ITS USE IS CALCULATED, IN THE SOUND
JUDGMENT OF THE CIRCUIT COURT OF APPEALS, TO ACHIEVE THE ENDS OF
JUSTICE ENTRUSTED TO IT.  IN OTHER WORDS, THE WRIT IS AVAILABLE IN
THOSE EXCEPTIONAL CASES "WHERE, BECAUSE OF SPECIAL CIRCUMSTANCES, ITS
USE AS AN AID TO AN APPEAL OVER WHICH THE COURT HAS JURISDICTION MAY
FAIRLY BE SAID TO BE REASONABLY NECESSARY IN THE INTEREST OF JUSTICE." 
ID., AT 274. 

EXCEPTIONAL SITUATIONS MAY ARISE WHERE A CIRCUIT COURT OF APPEALS
MIGHT FAIRLY CONCLUDE THAT ORAL ARGUMENT BY A PRISONER IN PERSON IS
"REASONABLY NECESSARY IN THE INTEREST OF JUSTICE."  TRUE, AN APPEAL CAN
ALWAYS BE SUBMITTED ON WRITTEN BRIEFS.  BUT ORAL ARGUMENT, WHILE NOT
INDISPENSABLE, IS FREQUENTLY IF NOT USUALLY DESIRED BY THE PARTIES. 
AND THERE ARE OCCASIONS WHEN A COURT DEEMS IT ESSENTIAL THAT ORAL
ARGUMENT BE HAD; INDEED, A COURT ORDER OR REQUEST TO THAT EFFECT MAY BE
NECESSARY WHERE THE PARTIES HAVE PREVIOUSLY INDICATED A WILLINGNESS TO
FOREGO THE PRIVILEGE.  IN SUCH SITUATIONS WHERE ORAL ARGUMENT IS SLATED
TO TAKE PLACE, FAIRNESS AND ORDERLY APPELLATE PROCEDURE DEMAND THAT
BOTH PARTIES BE ACCORDED AN EQUAL OPPORTUNITY TO PARTICIPATE IN THE
ARGUMENT EITHER THROUGH COUNSEL OR IN PERSON.  THE DIFFICULTY, OF
COURSE, ARISES WHEN ONE OF THE PARTIES IS A PRISONER WHO HAS NO LAWYER
AND WHO DESIRES THAT NONE BE APPOINTED TO REPRESENT HIM, BEING OF THE
BELIEF THAT THE CASE IS OF SUCH A NATURE THAT ONLY HE HIMSELF CAN
ADEQUATELY DISCUSS THE FACTS AND ISSUES.  SINCE ORDINARILY THE COURT
CANNOT DESIGNATE COUNSEL FOR THE PRISONER WITHOUT HIS CONSENT, AN
ARRANGEMENT THAT IS MADE FOR HIS PRESENCE AND PARTICIPATION AT THE ORAL
ARGUMENT CAN BE SAID TO BE "REASONABLY NECESSARY IN THE INTEREST OF
JUSTICE."  OTHERWISE THE COURT LOSES THE BENEFITS OF LISTENING TO HIS
CONTENTIONS, HEARING ONLY THE ARGUMENTS OF GOVERNMENT COUNSEL. 
CONCEIVABLY, THE PRISONER'S CASE MIGHT BE UNDULY PREJUDICED BY SUCH A
ONE-SIDED DEBATE.  THAT THE ARGUMENT ORALLY ADVANCED BY THE PRISONER
MAY IN FACT BE LESS THAN ENLIGHTENING TO THE COURT DOES NOT DETRACT
FROM THE FAIRNESS OR THE JUSTNESS OF GIVING HIM THE OPPORTUNITY TO
APPEAR AND ARGUE.  THUS IF A CIRCUIT COURT OF APPEALS IS SATISFIED IN
OTHER RESPECTS THAT THE PRISONER SHOULD BE PRODUCED AT THE ARGUMENT, A
WRIT DESIGNED TO EFFECTUATE THAT PRODUCTION IS PLAINLY "NECESSARY"
WITHIN THE CONTEMPLATION OF SEC. 262. 

IT REMAINS TO BE SEEN WHETHER A WRIT OF HABEAS CORPUS FOR THE PURPOSE
UNDER CONSIDERATION IS "AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW,"
AS THAT PHRASE IS USED IN SEC. 262.  AT COMMON LAW THERE WERE SEVERAL
VARIANTS OF THE WRIT OF HABEAS CORPUS.  SEE 3 BLACKSTONE'S
COMMENTARIES* 129-132; EX PARTE BOLLMAN, 4 CRANCH 75, 97-98.  FN9  NONE
OF THEM, HOWEVER, SEEMS TO HAVE BEEN DEVISED FOR THE PARTICULAR PURPOSE
OF PRODUCING A PRISONER TO ARGUE HIS OWN APPEAL.  NOR DOES IT APPEAR
THAT THE COURTS OF ENGLAND HAVE USED OR DEVELOPED THE HABEAS CORPUS
WRIT FOR THIS PURPOSE.  FN10 

HOWEVER, WE DO NOT CONCEIVE THAT A CIRCUIT COURT OF APPEALS, IN
ISSUING A WRIT OF HABEAS CORPUS UNDER SEC. 262 OF THE JUDICIAL CODE, IS
NECESSARILY CONFINED TO THE PRECISE FORMS OF THAT WRIT IN VOGUE AT THE
COMMON LAW OR IN THE ENGLISH JUDICIAL SYSTEM.  SECTION 262 SAYS THAT
THE WRIT MUST BE AGREEABLE TO THE USAGES AND PRINCIPLES OF "LAW," A
TERM WHICH IS UNLIMITED BY THE COMMON LAW OR THE ENGLISH LAW.  AND
SINCE "LAW" IS NOT A STATIC CONCEPT, BUT EXPANDS AND DEVELOPS AS NEW
PROBLEMS ARISE, WE DO NOT BELIEVE THAT THE FORMS OF THE HABEAS CORPUS
WRIT AUTHORIZED BY SEC. 262 ARE ONLY THOSE RECOGNIZED IN THIS COUNTRY
IN 1789, WHEN THE ORIGINAL JUDICIARY ACT CONTAINING THE SUBSTANCE OF
THIS SECTION CAME INTO EXISTENCE.  IN SHORT, WE DO NOT READ SEC. 262 AS
AN OSSIFICATION OF THE PRACTICE AND PROCEDURE OF MORE THAN A CENTURY
AND A HALF AGO.  RATHER IT IS A LEGISLATIVELY APPROVED SOURCE OF
PROCEDURAL INSTRUMENTS DESIGNED TO ACHIEVE "THE RATIONAL ENDS OF LAW." 
ADAMS V. UNITED STATES EX REL. MCCANN, SUPRA, 273. 

WE ACCORDINGLY LOOK TO THE USAGES AND PRINCIPLES WHICH HAVE ATTACHED
THEMSELVES TO THE WRIT OF HABEAS CORPUS DOWN THROUGH THE YEARS TO THE
PRESENT TIME.  THE HISTORIC AND GREAT USAGE OF THE WRIT, REGARDLESS OF
ITS PARTICULAR FORM, IS TO PRODUCE THE BODY OF A PERSON BEFORE A COURT
FOR WHATEVER PURPOSE MIGHT BE ESSENTIAL TO THE PROPER DISPOSITION OF A
CAUSE.  THE MOST IMPORTANT RESULT OF SUCH USAGE HAS BEEN TO AFFORD A
SWIFT AND IMPERATIVE REMEDY IN ALL CASES OF ILLEGAL RESTRAINT UPON
PERSONAL LIBERTY.  WITH THAT USAGE, A WRIT FOR THE PURPOSE UNDER
CONSIDERATION IS ENTIRELY AGREEABLE AND CONSISTENT.  TO ORDER THE
PRODUCTION OF A PRISONER BEFORE AN APPELLATE COURT TO ARGUE HIS OWN
APPEAL IN A CASE IN WHICH HE ALLEGES THAT HE IS ILLEGALLY IMPRISONED IS
TO PERFORM AN ACT WHICH IS INTIMATELY AND NECESSARILY RELATED TO THE
PRESENTATION OF THE MERITS OF THE PRISONER'S COMPLAINT, A PRESENTATION
WHICH IS ESSENTIAL IF RELIEF FROM THE ALLEGEDLY ILLEGAL IMPRISONMENT IS
TO BE SECURED.  SUCH PRODUCTION, AS WE HAVE SEEN, MAY IN SOME
CIRCUMSTANCES BE ESSENTIAL TO THE PROPER DISPOSITION OF THE CASE ON
APPEAL.  WHERE THAT IS THE CASE, A WRIT IN THE NATURE OF HABEAS CORPUS
TO ACHIEVE THAT PRODUCTION IS AGREEABLE TO THE USAGES OF LAW. 

MOREOVER, THE PRINCIPLE HAS DEVELOPED THAT THE WRIT OF HABEAS CORPUS
SHOULD BE LEFT SUFFICIENTLY ELASTIC SO THAT A COURT MAY, IN THE
EXERCISE OF ITS PROPER JURISDICTION, DEAL EFFECTIVELY WITH ANY AND ALL
FORMS OF ILLEGAL RESTRAINT.  THE RIGIDITY WHICH IS APPROPRIATE TO
ORDINARY JURISDICTIONAL DOCTRINES HAS NOT BEEN APPLIED TO THIS WRIT. 
THE FLUIDITY OF THE WRIT IS ESPECIALLY DESIRABLE IN THE SETTING OF A
STATUTE WHERE CONGRESS HAS GIVEN CIRCUIT COURTS OF APPEALS THE POWER TO
ISSUE THE WRIT IN AID OF THEIR APPELLATE JURISDICTION WHEREVER
"REASONABLY NECESSARY IN THE INTEREST OF JUSTICE."  THE ORDINARY FORMS
AND PURPOSES OF THE WRIT MAY OFTEN HAVE LITTLE RELATION TO THE
NECESSITIES OF THE APPELLATE JURISDICTION OF THOSE COURTS.  JUSTICE MAY
ON OCCASION REQUIRE THE USE OF A VARIATION OR A MODIFICATION OF AN
ESTABLISHED WRIT.  IT THUS BECOMES ESSENTIAL NOT TO LIMIT APPELLATE
COURTS TO THE ORDINARY FORMS AND PURPOSES OF LEGAL PROCESS.  CONGRESS
HAS SAID AS MUCH BY THE VERY BREADTH OF ITS LANGUAGE IN SEC. 262.  IT
FOLLOWS THAT WE SHOULD NOT WRITE IN LIMITATIONS WHICH CONGRESS DID NOT
SEE FIT TO MAKE. 

FORMULATION OF THE LIMITATIONS OF SEC. 262 WHICH DO EXIST MUST AWAIT
THE NECESSITIES OF APPELLATE JURISDICTION IN PARTICULAR CASES.  IT IS
ENOUGH FOR THE PRESENT TO NOTE THAT WHERE THOSE NECESSITIES ARE SUCH AS
TO REQUIRE THE PRESENCE OF A PRISONER TO ARGUE HIS OWN APPEAL, THE
ISSUANCE OF A WRIT OF HABEAS CORPUS FOR THAT PURPOSE IS "AGREEABLE TO
THE USAGES AND PRINCIPLES OF LAW" SO AS TO BE SANCTIONED BY SEC. 262. 
ONLY IN THAT WAY CAN WE GIVE SUBSTANCE IN THIS CASE TO OUR PREVIOUS
STATEMENT THAT "DRY FORMALISM SHOULD NOT STERILIZE PROCEDURAL RESOURCES
WHICH CONGRESS HAS MADE AVAILABLE TO THE FEDERAL COURTS."  ADAMS V.
UNITED STATES EX REL. MCCANN, SUPRA, 274. 

WE THEREFORE CONCLUDE THAT CIRCUIT COURTS OF APPEALS DO HAVE THE
POWER UNDER SEC. 262 OF THE JUDICIAL CODE TO ISSUE AN ORDER IN THE
NATURE OF A WRIT OF HABEAS CORPUS COMMANDING THAT A PRISONER BE BROUGHT
TO THE COURTROOM TO ARGUE HIS OWN APPEAL.  THAT POWER HAS HERETOFORE
BEEN ASSUMED.  SCHWAB V. BERGGREN, 143 U.S. 442, 449; AND SEE GOLDSMITH
V. SANFORD, 132 F.2D 126, 127; DONNELLY V. STATE, 26 N.J. LAW 463, 472,
AFFIRMED, 26 N.J. LAW 601.  WE NOW TRANSLATE THAT ASSUMPTION INTO AN
EXPLICIT HOLDING. 

IN SO DECIDING, HOWEVER, WE EMPHASIZE THAT THE POWER OF A CIRCUIT
COURT OF APPEALS TO ISSUE SUCH A WRIT IS DISCRETIONARY.  AND THIS
DISCRETION IS TO BE EXERCISED WITH THE BEST INTERESTS OF BOTH THE
PRISONER AND THE GOVERNMENT IN MIND.  IF IT IS APPARENT THAT THE
REQUEST OF THE PRISONER TO ARGUE PERSONALLY REFLECTS SOMETHING MORE
THAN A MERE DESIRE TO BE FREED TEMPORARILY FROM THE CONFINES OF THE
PRISON,  FN11  THAT HE IS CAPABLE OF CONDUCTING AN INTELLIGENT AND
RESPONSIBLE ARGUMENT, AND THAT HIS PRESENCE IN THE COURTROOM MAY BE
SECURED WITHOUT UNDUE INCONVENIENCE OR DANGER, THE COURT WOULD BE
JUSTIFIED IN ISSUING THE WRIT.  BUT IF ANY OF THOSE FACTORS WERE FOUND
TO BE NEGATIVE, THE COURT MIGHT WELL DECLINE TO ORDER THE PRISONER TO
BE PRODUCED.  SECTION 262, IN OTHER WORDS, DOES NOT JUSTIFY AN
INDISCRIMINATE OPENING OF THE PRISON GATES TO ALLOW ALL THOSE WHO SO
DESIRE TO ARGUE THEIR OWN APPEALS. 

THE DISCRETIONARY NATURE OF THE POWER IN QUESTION GROWS OUT OF THE
FACT THAT A PRISONER HAS NO ABSOLUTE RIGHT TO ARGUE HIS OWN APPEAL OR
EVEN TO BE PRESENT AT THE PROCEEDINGS IN AN APPELLATE COURT.  SCHWAB V.
BERGGREN, SUPRA.  THE ABSENCE OF THAT RIGHT IS IN SHARP CONTRAST TO HIS
CONSTITUTIONAL PREROGATIVE OF BEING PRESENT IN PERSON AT EACH
SIGNIFICANT STAGE OF A FELONY PROSECUTION,  FN12  SEE HOPT V. UTAH, 110
U.S. 574, AND SNYDER V. MASSACHUSETTS, 291 U.S. 97, AND TO HIS
RECOGNIZED PRIVILEGE OF CONDUCTING HIS OWN DEFENSE AT THE TRIAL. 
LAWFUL INCARCERATION BRINGS ABOUT THE NECESSARY WITHDRAWAL OR
LIMITATION OF MANY PRIVILEGES AND RIGHTS, A RETRACTION JUSTIFIED BY THE
CONSIDERATIONS UNDERLYING OUR PENAL SYSTEM.  AMONG THOSE SO LIMITED IS
THE OTHERWISE UNQUALIFIED RIGHT GIVEN BY SEC. 272 OF THE JUDICIAL CODE,
28 U.S.C. SEC. 394, TO PARTIES IN ALL THE COURTS OF THE UNITED STATES
TO "PLEAD AND MANAGE THEIR OWN CAUSES PERSONALLY."  TO THE EXTENT THAT
THIS SECTION PERMITS PARTIES TO CONDUCT THEIR OWN ORAL ARGUMENTS BEFORE
APPELLATE COURTS, IT MUST BE MODIFIED IN ITS APPLICATION TO PRISONERS. 
ORAL ARGUMENT ON APPEAL IS NOT AN ESSENTIAL INGREDIENT OF DUE PROCESS
AND IT MAY BE CIRCUMSCRIBED AS TO PRISONERS WHERE REASONABLE NECESSITY
SO DICTATES. 

A PRISONER'S RIGHT TO PARTICIPATE IN ORAL ARGUMENT ON APPEAL IS
ACCORDINGLY TO BE DETERMINED BY THE EXERCISE OF THE DISCRETIONARY POWER
OF THE CIRCUIT COURT OF APPEALS UNDER SEC. 262.  THE COURT BELOW ERRED
IN HOLDING THAT NO SUCH POWER EXISTED.  BUT SINCE THE CASE MUST GO BACK
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS, IT IS UNNECESSARY HERE
TO REMAND THE CASE TO THE CIRCUIT COURT OF APPEALS TO EXERCISE THE
DISCRETIONARY POWER WHICH RIGHTFULLY BELONGS TO IT.

                                 II. 

WE HOLD THAT PETITIONER'S FOURTH PETITION FOR A WRIT OF HABEAS
CORPUS, ALLEGING THE KNOWING USE OF FALSE TESTIMONY TO OBTAIN HIS
CONVICTION, WAS IMPROPERLY DISMISSED BY THE DISTRICT COURT. 

THE GOVERNMENT ARGUES BEFORE US THAT THE ALLEGATION IN QUESTION, AS
PRESENTED TO THE DISTRICT COURT, IS A MERE ALLEGATION OF LAW
UNSUPPORTED BY REFERENCE TO ANY SPECIFIC FACTS.  AS SUCH, THE
ALLEGATION IS SAID TO BE FATALLY DEFICIENT AND TO WARRANT SUMMARY
DENIAL.  REFERENCE IS MADE IN THIS RESPECT TO CUDDY, PETITIONER, 131
U.S. 280, 286; KOHL V. LEHLBACK, 160 U.S. 293, 299; UNITED STATES V. JU
TOY, 198 U.S. 253, 261; COLLINS V. MCDONALD, 258 U.S. 416, 420-421;
HODGE V. HUFF, 78 U.S. APP. D.C. 329, 331, 140 F.2D 686, 688; AND LONG
V. BENSON, 140 F.2D 195, 196.    BUT THIS PROPOSITION WAS APPARENTLY
NOT PRESENTED TO OR PASSED UPON BY THE DISTRICT COURT; NOR WAS IT
DETERMINED BY THE CIRCUIT COURT OF APPEALS.  THE SOLE COMPLAINT MADE BY
THE GOVERNMENT IN THE LOWER COURTS, AND THE MAIN ONE RAISED BEFORE US,
RELATES TO PETITIONER'S ALLEGED ABUSE OF THE WRIT OF HABEAS CORPUS.  A
CONSIDERATION OF THAT FACTOR IS PRELIMINARY AS WELL AS COLLATERAL TO A
DECISION AS TO THE SUFFICIENCY OR MERITS OF THE ALLEGATION ITSELF.  WE
ACCORDINGLY ADDRESS OURSELVES SOLELY TO THE ALLEGED ABUSE OF THE WRIT,
LEAVING THE GOVERNMENT FREE TO PRESS ITS OBJECTIONS TO THE ADEQUACY OF
THE ALLEGATION AFTER THE PROCEEDINGS ARE RENEWED BEFORE THE DISTRICT
COURT.    THE CIRCUIT COURT OF APPEALS, AS WE HAVE NOTED, TREATED THE
BARE ALLEGATION OF THE KNOWING USE OF FALSE TESTIMONY AS HAVING
INCORPORATED THE EXPLANATORY STATEMENT IN PETITIONER'S APPELLATE
BRIEF.  WHETHER SUCH AN EXPANDED ALLEGATION STATES A SUFFICIENTLY
SPECIFIC VIOLATION OF DUE PROCESS WITHIN THE MEANING OF MOONEY V.
HOLOHAN, 294 U.S. 103, IS A QUESTION WHICH WE NEED NOT NOW ANSWER.  NOR
IS IT NECESSARY HERE TO DECIDE THE PROPRIETY OF TREATING A STATEMENT IN
AN APPELLATE BRIEF AS AN AMPLIFICATION OF AN ALLEGATION IN THE TRIAL
COURT, A PRACTICE TO WHICH THE GOVERNMENT MAKES OBJECTION. 

BUT IN DEALING WITH THE ALLEGED ABUSE OF THE WRIT OF HABEAS CORPUS,
WE FIND IT UNDENIED THAT THE EXPLANATORY STATEMENT ILLUMINATES THE
ALLEGATION MADE IN THE DISTRICT COURT.  THE STATEMENT MAKES CLEAR THE
INCIDENT TO WHICH PETITIONER HAD REFERENCE WHEN HE ALLEGED THE KNOWING
USE OF FALSE TESTIMONY.  IN OTHER WORDS, THE ESSENCE OF PETITIONER'S
CHARGE IS THAT THE PROSECUTION BROUGHT UNDUE PRESSURE TO BEAR ON THE
GOVERNMENT'S CHIEF WITNESS, DONNER, TO CHANGE HIS TESTIMONY AND THAT
THIS ALTERED TESTIMONY WAS KNOWINGLY USED TO OBTAIN PETITIONER'S
CONVICTION.  CF. PYLE V. KANSAS, 317 U.S. 213, 215-216.  THE ISSUE NOW
IS WHETHER PETITIONER HAS SO ABUSED THE WRIT OF HABEAS CORPUS AS TO BAR
A CONSIDERATION OF THIS ALLEGATION, WHETHER IT BE GENERAL OR SPECIFIC
IN FORM OR WHETHER IT BE SUPPORTED OR UNSUPPORTED BY FACTUAL
REFERENCES. 

FROM THE FACTS WHICH WE HAVE PREVIOUSLY DETAILED IT IS EVIDENT THAT
THIS ALLEGATION WAS NOT PROPERLY RAISED PRIOR TO THE AMENDMENT OF THE
FOURTH PETITION.  NONE OF THE THREE PRIOR PETITIONS HAD MADE THIS
POINT.  IN THE FIRST PROCEEDING, IT IS TRUE, PETITIONER'S TRAVERSE TO
THE WARDEN'S RETURN CALLED THE COURT'S ATTENTION TO THE DIFFERING
STATEMENTS ALLEGEDLY MADE BY DONNER AND CLAIMED THAT CERTAIN UNDEFINED
"METHODS" HAD BEEN USED TO OBTAIN THE CHANGE IN TESTIMONY.  PETITIONER
WAS APPARENTLY TRYING TO RAISE THE DUE PROCESS ISSUE FORMULATED IN
MOONEY V. HOLOHAN, SUPRA.  BUT HIS EFFORT WAS WITHOUT SUCCESS.  A MERE
CLAIM THAT A WITNESS GAVE INCONSISTENT TESTIMONY IS NOT ENOUGH TO
CHARGE THE PROSECUTION'S KNOWING USE OF FALSE TESTIMONY; IT MAY WELL BE
THAT THE WITNESS' SUBSEQUENT STATEMENTS WERE TRUE, IN WHICH EVENT THE
CLAIM OF INCONSISTENCY IS NOT A CONSTITUTIONAL OBJECTION.  SINCE THIS
DUE PROCESS ISSUE WAS NOT PROPERLY RAISED, WE CANNOT ASSUME THAT THE
DISTRICT COURT'S ACTION IN DISMISSING THE FIRST PETITION ON THE
PLEADINGS WAS A DETERMINATION AGAINST PETITIONER ON THE MERITS OF THE
ISSUE. 

FURTHER ELABORATION OF THE DONNER INCIDENT WAS MADE BY PETITIONER IN
THE COURSE OF SEEKING REVIEW OF THE DISTRICT COURT'S ACTION ON THE
FIRST PETITION.  BOTH IN THE CIRCUIT COURT OF APPEALS AND IN THIS COURT
HE CLAIMED THAT HE HAD BEEN DENIED A FAIR AND IMPARTIAL TRIAL BY
DONNER'S ALLEGED SHIFT IN TESTIMONY; AND IN THIS COURT HE STATED THAT
THERE HAD BEEN A CONSPIRACY TO FORCE DONNER TO CHANGE HIS STORY.  IT IS
NOTEWORTHY THAT THE GOVERNMENT DID NOT SEE FIT TO DENY OR CONTROVERT
PETITIONER'S CLAIM UNTIL THE CASE REACHED THIS COURT.  WE NEED NOT
DECIDE WHETHER THE DUE PROCESS ISSUE WAS PROPERLY RAISED IN THE REVIEW
PROCEEDINGS, INASMUCH AS PETITIONER'S FAILURE TO MAKE A PROPER
ALLEGATION IN THAT RESPECT IN THE DISTRICT COURT FORECLOSED ANY
DETERMINATION OF THE MATTER.  AND AS WE HAVE NOTED, THE SECOND AND
THIRD PETITIONS FOR HABEAS CORPUS WERE COMPLETELY SILENT AS TO THIS DUE
PROCESS ISSUE. 

THERE HAS THUS BEEN NO PROPER OCCASION PRIOR TO THE FOURTH PROCEEDING
FOR A HEARING AND DETERMINATION BY THE DISTRICT COURT AS TO THE
ALLEGATION THAT THE PROSECUTION KNOWINGLY USED FALSE TESTIMONY TO
OBTAIN A CONVICTION.  THAT FACT RENDERS INAPPLICABLE SALINGER V.
LOISEL, 265 U.S. 224, UPON WHICH RELIANCE WAS PLACED BY THE CIRCUIT
COURT OF APPEALS.  IT WAS THERE HELD THAT, WHILE HABEAS CORPUS
PROCEEDINGS ARE FREE FROM THE RES JUDICATA PRINCIPLE, A PRIOR REFUSAL
TO DISCHARGE THE PRISONER IS NOT WITHOUT BEARING OR WEIGHT WHEN A LATER
HABEAS CORPUS APPLICATION RAISING THE SAME ISSUES IS CONSIDERED.  BUT
HERE THE THREE PRIOR APPLICATIONS DID NOT RAISE THE ISSUE NOW UNDER
CONSIDERATION AND THE THREE PRIOR REFUSALS TO DISCHARGE PETITIONER CAN
HAVE NO BEARING OR WEIGHT ON THE DISPOSITION TO BE MADE OF THE NEW
MATTER RAISED IN THE FOURTH PETITION.  WALEY V. JOHNSTON, 316 U.S.
101. 

LIKEWISE IRRELEVANT TO THE INSTANT PROCEEDING IS WONG DOO V. UNITED
STATES, 265 U.S. 239.  IN THAT CASE, THE PETITIONER SET FORTH TWO
GROUNDS FOR DISCHARGE IN HIS FIRST PETITION.  AT THE HEARING, HE
OFFERED NO PROOF IN SUPPORT OF THE SECOND GROUND.  THE PETITION WAS
DISMISSED ON THE THEORY THAT THE FIRST GROUND WAS NOT GOOD IN LAW.  A
SUBSEQUENT HABEAS CORPUS PETITION RELIED ENTIRELY ON THE SECOND GROUND
ALLEGED IN THE FIRST PETITION.  THIS COURT HELD THAT THE PETITIONER HAD
HAD FULL OPPORTUNITY TO OFFER PROOF AS TO THE SECOND POINT AT THE
HEARING ON THE FIRST PETITION, PROOF WHICH WAS ACCESSIBLE AT ALL
TIMES.  IF HE WAS INTENDING TO RELY ON THAT GROUND, GOOD FAITH REQUIRED
THAT HE PRODUCE HIS PROOF AT THE FIRST HEARING.  "TO RESERVE THE PROOF
FOR USE IN ATTEMPTING TO SUPPORT A LATER PETITION, IF THE FIRST FAILED,
WAS TO MAKE AN ABUSIVE USE OF THE WRIT OF HABEAS CORPUS.  NO REASON FOR
NOT PRESENTING THE PROOF AT THE OUTSET IS OFFERED."  265 U.S. AT 241. 

THE WONG DOO CASE THUS INVOLVED A SITUATION WHERE ONE HAS PROPERLY
RAISED AN ISSUE IN AN EARLIER PETITION, HAS RECEIVED A FULL OPPORTUNITY
AT A HEARING TO PRESENT EVIDENCE ON THE POINT, AND HAS REFUSED TO AVAIL
ONESELF OF THAT OPPORTUNITY.  THE DISTINGUISHING FEATURES IN THE
INSTANT CASE ARE OBVIOUS. 

THERE IS ONE FACTOR IN THIS CASE THAT MIGHT BE THOUGHT TO JUSTIFY THE
DISMISSAL OF THE FOURTH PETITION AS AN ABUSIVE USE OF THE HABEAS CORPUS
WRIT.  THAT FACTOR IS THAT PETITIONER HAD PRIOR KNOWLEDGE OF THE DONNER
INCIDENT WHICH FORMS THE BASIS, AT LEAST IN PART, OF THE DUE PROCESS
ALLEGATION NOW BEING MADE.  THE RECORD IN THE FIRST PROCEEDING SHOWS
THAT PETITIONER'S OWN LAWYER ELICITED THE INFORMATION FROM DONNER THAT
HE HAD TALKED WITH THE PROSECUTING LAWYERS DURING THE INTERLUDE BETWEEN
THE ALLEGEDLY CONFLICTING STATEMENTS.  AND PETITIONER MADE REFERENCE TO
THAT INFORMATION DURING THE COURSE OF THE FIRST HABEAS CORPUS
PROCEEDING IN THE MANNER HERETOFORE DESCRIBED.  PETITIONER NOW UTILIZES
THAT SAME INFORMATION IN ALLEGING THAT THE PROSECUTION MADE A KNOWING
USE OF FALSE TESTIMONY. 

IN THE FIRST PLACE, HOWEVER, WE CANNOT ASSUME THAT PETITIONER HAS
ACQUIRED NO NEW OR ADDITIONAL INFORMATION SINCE THE TIME OF THE TRIAL
OR THE FIRST HABEAS CORPUS PROCEEDING THAT MIGHT INDICATE FRAUDULENT
CONDUCT ON THE PART OF THE PROSECUTING ATTORNEYS.  AS JUDGE DENMAN
STATED IN HIS DISSENTING OPINION BELOW, 161 F.2D AT 708-709:  "THE
GRAVAMEN OF THE MISCONDUCT CHARGED IS NOT THE FACT THAT THE WITNESS
CHANGED HIS TESTIMONY BUT THAT THE PROSECUTING ATTORNEY KNOWINGLY
CAUSED THE WITNESS TO GIVE THE FALSE TESTIMONY.  ALL THE ACCUSED AND
HIS ATTORNEY KNEW AT THE TRIAL WAS THAT THE SINGLE PROSECUTING WITNESS
CHANGED HIS TESTIMONY.  OBVIOUSLY THIS IN ITSELF DOES NOT WARRANT A
CHARGE OF FRAUD.  THAT IT WAS FRAUDULENTLY DONE BY PERSUASION OF THE
PROSECUTING ATTORNEY COULD ONLY HAVE BEEN LEARNED AFTER CONVICTION AND
AFTER THE CONVICTED MAN WAS IN THE PENITENTIARY." 

WHETHER PETITIONER DOES OR DOES NOT HAVE ANY NEW INFORMATION IS A
MATTER UNREVEALED BY ANYTHING BEFORE US OR BEFORE THE CIRCUIT COURT OF
APPEALS.  IT IS A MATTER WHICH SHOULD BE DETERMINED IN THE FIRST
INSTANCE BY THE DISTRICT COURT.  AND IT IS ONE ON WHICH PETITIONER IS
ENTITLED TO BE HEARD EITHER AT A HEARING OR THROUGH AN AMENDMENT OR
ELABORATION OF HIS PLEADINGS.  APPELLATE COURTS CANNOT MAKE FACTUAL
DETERMINATIONS WHICH MAY BE DECISIVE OF VITAL RIGHTS WHERE THE CRUCIAL
FACTS HAVE NOT BEEN DEVELOPED.  CF. KENNEDY V. SILAS MASON CO., 334
U.S. 249. 

IN THE SECOND PLACE, EVEN IF IT IS FOUND THAT PETITIONER DID HAVE
PRIOR KNOWLEDGE OF ALL THE FACTS CONCERNING THE ALLEGATION IN QUESTION,
IT DOES NOT NECESSARILY FOLLOW THAT THE FOURTH PETITION SHOULD BE
DISMISSED WITHOUT FURTHER OPPORTUNITY TO AMEND THE PLEADINGS OR WITHOUT
HOLDING A HEARING.  IF CALLED UPON, PETITIONER MAY BE ABLE TO PRESENT
ADEQUATE REASONS FOR NOT MAKING THE ALLEGATION EARLIER, REASONS WHICH
MAKE IT FAIR AND JUST FOR THE TRIAL COURT TO OVERLOOK THE DELAY.  THE
PRIMARY PURPOSE OF A HABEAS CORPUS PROCEEDING IS TO MAKE CERTAIN THAT A
MAN IS NOT UNJUSTLY IMPRISONED.  AND IF FOR SOME JUSTIFIABLE REASON HE
WAS PREVIOUSLY UNABLE TO ASSERT HIS RIGHTS OR WAS UNAWARE OF THE
SIGNIFICANCE OF RELEVANT FACTS, IT IS NEITHER NECESSARY NOR REASONABLE
TO DENY HIM ALL OPPORTUNITY OF OBTAINING JUDICIAL RELIEF. 

MOREOVER, WE DO NOT BELIEVE THAT THE BURDEN WAS ON THE PETITIONER OF
AFFIRMATIVELY ALLEGING IN THE FIRST INSTANCE THAT HE HAD ACQUIRED NEW
INFORMATION OR THAT HE HAD ADEQUATE REASONS FOR NOT RAISING SOONER THE
ISSUE OF THE KNOWING USE OF FALSE TESTIMONY.  IT WAS ENOUGH IF HE
PRESENTED AN ALLEGATION AND SUPPORTING FACTS WHICH, IF BORNE OUT BY
PROOF, WOULD ENTITLE HIM TO RELIEF.  PRISONERS ARE OFTEN UNLEARNED IN
THE LAW AND UNFAMILIAR WITH THE COMPLICATED RULES OF PLEADING.  SINCE
THEY ACT SO OFTEN AS THEIR OWN COUNSEL IN HABEAS CORPUS PROCEEDINGS, WE
CANNOT IMPOSE ON THEM THE SAME HIGH STANDARDS OF THE LEGAL ART WHICH WE
MIGHT PLACE ON THE MEMBERS OF THE LEGAL PROFESSION.  ESPECIALLY IS THIS
TRUE IN A CASE LIKE THIS WHERE THE IMPOSITION OF THOSE STANDARDS WOULD
HAVE A RETROACTIVE AND PREJUDICIAL EFFECT ON THE PRISONER'S
INARTISTICALLY DRAWN PETITION.  CF. HOLIDAY V. JOHNSTON, 313 U.S. 342,
350; PYLE V. KANSAS, SUPRA, 216; TOMKINS V. MISSOURI, 323 U.S. 485,
487; RICE V. OLSON, 324 U.S. 786, 791-792. 

AND SO IF THE GOVERNMENT CHOOSES NOT TO DENY THE ALLEGATION OR TO
QUESTION ITS SUFFICIENCY AND DESIRES INSTEAD TO CLAIM THAT THE PRISONER
HAS ABUSED THE WRIT OF HABEAS CORPUS, IT RESTS WITH THE GOVERNMENT TO
MAKE THAT CLAIM WITH CLARITY AND PARTICULARITY IN ITS RETURN TO THE
ORDER TO SHOW CAUSE.  THAT IS NOT AN INTOLERABLE BURDEN.  THE
GOVERNMENT IS USUALLY WELL ACQUAINTED WITH THE FACTS THAT ARE NECESSARY
TO MAKE SUCH A CLAIM.  ONCE A PARTICULAR ABUSE HAS BEEN ALLEGED, THE
PRISONER HAS THE BURDEN OF ANSWERING THAT ALLEGATION AND OF PROVING
THAT HE HAS NOT ABUSED THE WRIT.  IF THE ANSWER IS INADEQUATE, THE
COURT MAY DISMISS THE PETITION WITHOUT FURTHER PROCEEDINGS.  BUT IF
THERE IS A SUBSTANTIAL CONFLICT, A HEARING MAY BE NECESSARY TO
DETERMINE THE ACTUAL FACTS.  APPROPRIATE FINDINGS AND CONCLUSIONS OF
LAW CAN THEN BE MADE.  IN THIS WAY AN ADEQUATE RECORD MAY BE
ESTABLISHED SO THAT APPELLATE COURTS CAN DETERMINE THE PRECISE BASIS OF
THE DISTRICT COURT'S ACTION, WHICH IS OFTEN SHROUDED IN AMBIGUITY WHERE
A PETITION IS DISMISSED WITHOUT AN EXPRESSED REASON.  AND THE PRISONER
IS GIVEN A FAIRER OPPORTUNITY TO MEET ALL POSSIBLE OBJECTIONS TO THE
FILING OF HIS PETITION. 

IT IS OBVIOUS THAT THE PROCEDURE FOLLOWED IN THE DISTRICT COURT IN
THE INSTANT PROCEEDING PRECLUDED A PROPER DEVELOPMENT OF THE ISSUE OF
THE ALLEGEDLY ABUSIVE USE OF THE HABEAS CORPUS WRIT.  THE GOVERNMENT'S
RESPONSE TO THE ORDER TO SHOW CAUSE WAS TOO INDEFINITE AND VAGUE TO
GIVE PETITIONER A FAIR OPPORTUNITY TO MEET THIS IMPORTANT ISSUE. 
MERELY QUOTING THE COURT'S OPINION IN THE THIRD HABEAS CORPUS
PROCEEDING WAS NOT ENOUGH TO REQUIRE PETITIONER TO EXPLAIN HIS REASONS
FOR FAILING TO PRESENT EARLIER HIS ALLEGATION AS TO THE KNOWING USE OF
FALSE TESTIMONY.  AND THE COURT EITHER FAILED OR WAS UNABLE TO
DELINEATE THE ISSUE BY MAKING SPECIFIC FINDINGS AND CONCLUSIONS OF LAW
OR BY EXPLAINING ITS VIEW OF THE MATTER IN A WRITTEN OPINION. 

WE ARE NOT UNAWARE OF THE MANY PROBLEMS CAUSED BY THE NUMEROUS AND
SUCCESSIVE HABEAS CORPUS PETITIONS FILED BY PRISONERS.  FN13  BUT THE
ANSWER IS NOT TO BE FOUND IN REPEATED DENIALS OF PETITIONS WITHOUT
LEAVE TO AMEND OR WITHOUT THE PRISONERS HAVING AN OPPORTUNITY TO DEFEND
AGAINST THEIR ALLEGED ABUSES OF THE WRIT.  THAT ONLY ENCOURAGES THE
FILING OF MORE FUTILE PETITIONS.  THE VERY LEAST THAT CAN AND SHOULD BE
DONE IS TO MAKE HABEAS CORPUS PROCEEDINGS IN DISTRICT COURTS MORE
MEANINGFUL AND DECISIVE, MAKING CLEAR JUST WHAT ISSUES ARE DETERMINED
AND FOR WHAT REASONS. 

TO THAT END, WE REVERSE THE JUDGMENT BELOW AND REMAND THE INSTANT
CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.  WE DO NOT HOLD THAT THE DISTRICT COURT, ON REMAND, MUST GRANT
THE FOURTH HABEAS CORPUS PETITION IF IT IS UNSUPPORTED AND
UNSUBSTANTIATED; NOR DO WE HOLD THAT A HEARING MUST NOW BE HELD ON THE
MERITS OF THE ALLEGATION IN QUESTION.  RATHER THE CASE MUST BE
DEVELOPED FURTHER IN LIGHT OF THE PRINCIPLES DISCUSSED HEREIN.  THE
GOVERNMENT IS FREE TO AMEND ITS RETURN TO BRING INTO FOCUS WHATEVER
ABUSE OF THE WRIT OF HABEAS CORPUS IT THINKS PETITIONER HAS COMMITTED. 
AND THE PETITIONER IS FREE TO ANSWER SUCH CHARGE AS MAY BE MADE IN THAT
RESPECT, THE BURDEN BEING ON HIM TO SHOW THAT HE IS ENTITLED AT THIS
LATE DATE TO MAKE THE ALLEGATION AS TO THE KNOWING USE OF FALSE
TESTIMONY.  THE DISTRICT COURT MAY THEN DISPOSE OF THE MATTER ON THE
PLEADINGS OR ORDER THAT A HEARING BE HAD TO DEVELOP THE FACTS.  IF THE
COURT EVENTUALLY DETERMINES THAT PETITIONER HAS NOT ABUSED THE WRIT,
THE ALLEGATION OF THE KNOWING USE OF FALSE TESTIMONY SHOULD BE DECIDED
AS TO ITS SUFFICIENCY AND ITS MERITS.  BUT IN ANY EVENT THE COURT
SHOULD MAKE EXPLICIT ITS DETERMINATION OF THE PRELIMINARY PROBLEM OF
THE ABUSIVE USE OF THE WRIT.  REVERSED AND REMANDED.    FN1  12 U.S.C.
SECS. 588B AND 588C.  PETITIONER WAS CHARGED WITH HAVING (1) ENTERED A
FEDERALLY INSURED BANK WITH INTENT TO ROB, (2) ROBBED THE BANK BY
PUTTING AN EMPLOYEE IN FEAR, (3) JEOPARDIZED THE LIVES OF A BANK
EMPLOYEE AND OTHERS BY THE USE OF A DANGEROUS WEAPON, AND (4) KIDNAPPED
A BANK EMPLOYEE IN THE COURSE OF SUCH OFFENSE.  PETITIONER WAS FOUND
GUILTY AS CHARGED.    FN2  HIS PETITION TO THE SIXTH CIRCUIT COURT OF
APPEALS FOR A WRIT OF MANDAMUS TO REQUIRE THE TRIAL JUDGE TO ENTER A
DECISION ON HIS APPLICATION FOR AN APPEAL WAS DENIED BECAUSE "NO
APPLICATION FOR APPEAL IS PENDING BEFORE RESPONDENT OR IN THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN."  PRICE V.
MOINET, 116 F.2D 500.  HIS PETITION IN THIS COURT FOR A WRIT OF
CERTIORARI WAS DENIED BECAUSE FILED OUT OF TIME, 311 U.S. 703;
REHEARING DENIED, 311 U.S. 729.  PETITIONER ACTED AS HIS OWN COUNSEL IN
THESE UNSUCCESSFUL MANEUVERS. 

FN3  POINT V OF PETITIONER'S MOTION STATED:  "BECAUSE THE RESPONDENT
SHOWS FALSELY ON THE AFFIDAVIT BY ASSISTANT UNITED STATES ATTORNEY JOHN
W. BABCOCK, RESPONDENT'S EXHIBIT 'A', WHERE HE STATES THAT THERE WAS NO
DETERMINATION OF ANY ONE IN SAID OFFICE OF THE UNITED STATES ATTORNEY
TO HAVE HIM CONVICTED FALSELY.  PETITIONER CALLS THE ATTENTION OF THIS
HONORABLE COURT TO THE TESTIMONY OF TRANSCRIPT OF RECORD AT PAGE 35
SECOND PART.  RECROSS EXAMINATION OF THE ONE AND ONLY WITNESS THAT THE
GOVERNMENT PRODUCED TO TESTIFY THAT THERE HAD BEEN A CRIME COMMITTED AS
CHARGED IN INDICTMENT #24629.  PETITIONER'S EXHIBIT 'A', TESTIMONY
GIVEN BY FRED T. DONNER, AND IT WILL SHOW JUST WHAT METHODS WAS USED TO
OBTAIN TWO DIFFERENT STATEMENTS FROM THIS WITNESS." 

FN4  THIS TESTIMONY WAS BROUGHT OUT ON RECROSS EXAMINATION OF DONNER
BY ONE OF PETITIONER'S ATTORNEYS.  PART OF THIS COLLOQUY WAS AS
FOLLOWS: 

"Q.  WITNESS, PERHAPS I MISUNDERSTOOD YOUR TESTIMONY THIS MORNING. 
DID I UNDERSTAND YOU CORRECTLY TO SAY THAT LAST NIGHT AFTER YOU LEFT
HERE, YOU WENT UP TO THE DEPARTMENT OF JUSTICE, OR THE DISTRICT
ATTORNEY'S OFFICE, AND YOU DISCUSSED YOUR TESTIMONY? 

"A.  YES, SIR. 

"Q.  AND WHOM DID YOU DISCUSS IT WITH? 

"A.  WITH THE DISTRICT ATTORNEY, AND THE ASSISTANT. 

"Q.  AND AFTER THAT DISCUSSION, YOU REMEMBERED SOME THINGS THAT YOU
HAVE TESTIFIED TO THIS MORNING? 

"A.  I REMEMBERED THEM YESTERDAY, BUT I JUST - I WAS NERVOUS AND
FORGOT THEM. 

     .         .         .         .         . 

"Q.  WELL, MY RECOLLECTION AND YOURS PERHAPS DO NOT AGREE ON IT, BUT
THE STATEMENTS THAT YOU MADE YESTERDAY WERE ALL TRUE TO THE BEST OF
YOUR RECOLLECTION, WERE THEY NOT? 

"A.  YES, SIR. 

"Q.  AND YOUR CONVERSATIONS LAST NIGHT AFTER YOU LEFT THE COURT
DIDN'T ASSIST YOU IN GIVING ANY TESTIMONY, DID THEY? 

"A.  NO, IT DID NOT, ONLY THAT I HAD AN OPPORTUNITY, I WANTED AN
OPPORTUNITY TO BRING OUT SOMETHING THAT I HADN'T SAID. 

"Q.  DID IT REFRESH YOUR RECOLLECTION? 

"A.  NO, IT JUST - THERE WERE JUST SOME THINGS I DIDN'T TELL IN MY
STORY, THAT IS ALL." 

FN5  THE LAWYER WHO HAD REPRESENTED PETITIONER IN CONNECTION WITH THE
FIRST APPLICATION WITHDREW AND ANOTHER WAS APPOINTED IN HIS PLACE BY
THE DISTRICT COURT TO SERVE PETITIONER IN THE SECOND PROCEEDING.  THIS
LAWYER FILED AN AMENDED PETITION FOR THE WRIT OF HABEAS CORPUS.  THE
WRIT ISSUED, THERE WAS A HEARING AT WHICH PETITIONER'S COUNSEL WAS
PRESENT, A FURTHER AMENDMENT OF THE PETITION WAS ALLOWED, AND TESTIMONY
WAS TAKEN.  PETITIONER GAVE EVIDENCE ON HIS OWN BEHALF AT THIS
HEARING.  IN PROSECUTING HIS APPEAL FROM THE DISTRICT COURT'S ACTION,
PETITIONER ONCE MORE ACTED PRO SE. 

FN6  THE DISTRICT COURT'S OPINION, AFTER BRIEFLY STATING THE
BACKGROUND OF THE CASE, READS AS FOLLOWS: 

"PETITIONER ALLEGES 'THAT THE QUESTIONS NOW RAISED WAS NOT RAISED IN
THE PRIOR PETITIONS NO. 23268-W AND 10.671.R.'  HOWEVER, THESE MATTERS
WERE KNOWN TO PETITIONER WHEN HE FILED THE PETITIONS IN 23268-W AND
23721-R.  IF PETITIONER INTENDED TO RELY ON THESE MATTERS HE SHOULD
HAVE URGED THEM IN 23268-W.  'TO RESERVE THEM FOR USE IN A LATER
PROCEEDING "WAS TO MAKE AN ABUSIVE USE OF THE WRIT OF HABEAS CORPUS."' 
SWIHART V. JOHNSTON, 9 CIR., 1945, 150 F.2D 721. 

"SINCE UPON THE FACE OF THE PETITION PETITIONER IS NOT ENTITLED TO
THE WRIT, WALKER V. JOHNSTON, 312 U.S. 275, 284  ...  THE PETITION FOR
WRIT OF HABEAS CORPUS IS DENIED." 

FN7  THE GOVERNMENT'S MEMORANDUM OF POINTS AND AUTHORITIES, FILED
WITH THE RETURN, MERELY QUOTED THE DISTRICT COURT'S OPINION DENYING THE
THIRD PETITION FOR A WRIT OF HABEAS CORPUS, PRICE V. JOHNSTON, 61
F.SUPP.  995(SEE FOOTNOTE 6, SUPRA).  THE MEMORANDUM THEN CONCLUDED:
"RESPONDENT, IN RELIANCE ON THE DECISION OF JUDGE ST. SURE AND THE
AUTHORITIES WHICH HE CITES, RESPECTFULLY URGES THAT THE PETITION FOR
WRIT OF HABEAS CORPUS SHOULD BE DENIED AND THE ORDER TO SHOW CAUSE,
HERETOFORE ISSUED, DISCHARGED." 

FN8  THE GOVERNMENT'S BRIEF IN THE CIRCUIT COURT OF APPEALS AGAIN WAS
DEVOTED SOLELY TO A QUOTATION OF THE DISTRICT COURT'S OPINION DENYING
THE THIRD PETITION.  SEE FOOTNOTE 7, SUPRA.  IT CONCLUDED WITH THE
FOLLOWING STATEMENT:  "APPELLEE IS IN ACCORD WITH THE REASONING OF
JUDGE ST. SURE AND THE AUTHORITIES CITED IN HIS MEMORANDUM AND ORDER
DENYING APPELLANT'S THIRD APPLICATION FOR A WRIT OF HABEAS CORPUS, AND
HEREBY ADOPTS THEM IN TOTO AS HIS ARGUMENT ON THIS APPEAL TO SUSTAIN
THE COURT BELOW IN ITS DECISION DENYING APPELLANT'S FOURTH APPLICATION
FOR A WRIT OF HABEAS CORPUS IN OUR CASE AT BAR." 

FN9  BLACKSTONE DESCRIBES THE FOLLOWING COMMON LAW VERSIONS OF THE
HABEAS CORPUS WRIT: 

(1)  HABEAS CORPUS AD RESPONDENDUM.  ISSUED "WHEN A MAN HATH A CAUSE
OF ACTION AGAINST ONE WHO IS CONFINED BY THE PROCESS OF SOME INFERIOR
COURT; IN ORDER TO REMOVE THE PRISONER, AND CHARGE HIM WITH THIS NEW
ACTION IN THE COURT ABOVE." 

(2)  HABEAS CORPUS AD SATISFACIENDUM.  ISSUED "WHEN A PRISONER HATH
HAD JUDGMENT AGAINST HIM IN AN ACTION, AND THE PLAINTIFF IS DESIROUS TO
BRING HIM UP TO SOME SUPERIOR COURT TO CHARGE HIM WITH PROCESS OF
EXECUTION." 

(3)  HABEAS CORPUS AD PROSEQUENDUM, TESTIFICANDUM, DELIBERANDUM, ETC.
ISSUED "WHEN IT IS NECESSARY TO REMOVE A PRISONER, IN ORDER TO
PROSECUTE OR BEAR TESTIMONY IN ANY COURT, OR TO BE TRIED IN THE PROPER
JURISDICTION WHEREIN THE FACT WAS COMMITTED." 

(4)  HABEAS CORPUS AD FACIENDUM ET RECIPIENDUM.  THIS "ISSUES OUT OF
ANY OF THE COURTS OF WESTMINSTER HALL, WHEN A PERSON IS SUED IN SOME
INFERIOR JURISDICTION, AND IS DESIROUS TO REMOVE THE ACTION INTO THE
SUPERIOR COURT; COMMANDING THE INFERIOR JUDGES TO PRODUCE THE BODY OF
THE DEFENDANT, TOGETHER WITH THE DAY AND CAUSE OF HIS CAPTION AND
DETAINER, (WHENCE THE WRIT IS FREQUENTLY DENOMINATED AN HABEAS CORPUS
CUM CAUSA,) TO DO AND RECEIVE WHATSOEVER THE KING'S COURT SHALL
CONSIDER IN THAT BEHALF." 

(5)  HABEAS CORPUS AD SUBJICIENDUM.  THE "GREAT AND EFFICACIOUS
WRIT," WHICH IS "DIRECTED TO THE PERSON DETAINING ANOTHER, AND
COMMANDING HIM TO PRODUCE THE BODY OF THE PRISONER, WITH THE DAY AND
CAUSE OF HIS CAPTION AND DETENTION, AD FACIENDUM, SUBJICIENDUM, ET
RECIPIENDUM, TO DO, SUBMIT TO, AND RECEIVE WHATSOEVER THE JUDGE OR
COURT AWARDING SUCH WRIT SHALL CONSIDER IN THAT BEHALF." 

CHIEF JUSTICE MARSHALL EXAMINES THE FIRST FOUR OF THESE WRITS IN
THEIR RELATION TO THE AMERICAN JUDICIAL SYSTEM IN EX PARTE BOLLMAN, 4
CRANCH 75, 97-98. 

FN10  THE COURTS OF ENGLAND HAVE LONG CONSIDERED THEMSELVES POWERLESS
TO ISSUE A HABEAS CORPUS WRIT TO ENABLE A PRISONER TO DEFEND HIMSELF IN
ANOTHER PROCEEDING OR TO ARGUE MOTIONS IN THE TRIAL COURT.  BENNS V.
MOSLEY, 2 C.B. (N.S.)  116; WELDON V. NEAL, 15 Q.B.D. 471.  SEE ALSO
ATTORNEY GENERAL V. HUNT, 9 PRICE 147; FORD V. NASSAU, 9 M. & W. 793;
REX V. PARKYNS, 3 B. & ALD.  679; ATTORNEY GENERAL V. CLEAVE, 2 DOWL. 
P.C. 668; EX PARTE COBBETT, 3 H. & N. 155; CLARK V. SMITH, 3 C.B. 982. 
BUT THE SPECIFIC PROBLEM OF WHETHER A PRISONER CAN BE PRODUCED TO ARGUE
IN PERSON HIS OWN APPEAL UNDER CIRCUMSTANCES LIKE THOSE PRESENT IN THE
INSTANT CASE DOES NOT APPEAR TO HAVE A PRECISE ANSWER IN ENGLISH LAW. 

FN11  THE CIRCUIT COURT OF APPEALS BELOW FELT THAT THE PRODUCTION OF
PRISONERS TO ARGUE THEIR OWN APPEALS MIGHT LEAD TO "THE WIDESPREAD
ABUSE OF THE WRIT  ...  , NOT TO MENTION THE ITEMS OF FRUITLESS BURDEN
AND EXPENSE.  TO THE LEGITIMATE HOPE OF RELEASE BY LEGAL MEANS WOULD BE
ADDED INDUCEMENTS NOT SO LEGITIMATE; FOR TEMPORARY RELIEF FROM PRISON
CONFINEMENT IS ALWAYS AN ALLURING PROSPECT, AND TO THE HARDENED
CRIMINAL THE POSSIBILITY OF ESCAPE LURKS IN EVERY EXCURSION BEYOND
PRISON WALLS."  159 F.2D AT 237. 

FN12  BUT SEE BELL V. UNITED STATES, 129 F.2D 290; BARBER V. UNITED
STATES, 142 F.2D 805. 

FN13  SEE DISCUSSIONS IN DORSEY V. GILL, 80 U.S. APP. D.C. 9, 148
F.2D 857; GOODMAN, "USE AND ABUSE OF THE WRIT OF HABEAS CORPUS," 7
F.R.D. 313; NOTE, 61 HARV. L. REV. 657. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

I AGREE WITH THE VIEWS OF MR. JUSTICE JACKSON THAT, IN THE LIGHT OF
ALL THE LONG-DRAWN-OUT PRIOR PROCEEDINGS, THE TWO LOWER COURTS
JUSTIFIABLY FOUND THE FOURTH PETITION FOR HABEAS CORPUS IN THIS CASE
WITHOUT MERIT ON ITS FACE.  IT IS NOT TOO MUCH TO ASK THE PETITIONER TO
STATE, HOWEVER INFORMALLY, THAT HIS FOURTH PETITION IS BASED ON NEWLY
DISCOVERED MATTER, OR, IN ANY EVENT, ON A CLAIM THAT HE COULD NOT
FAIRLY HAVE BEEN ASKED TO BRING TO THE COURT'S ATTENTION IN HIS THREE
PRIOR PETITIONS.  SUCH A REQUIREMENT CERTAINLY DOES NOT NARROW THE
BROAD PROTECTION WHICH THE WRIT OF HABEAS CORPUS SERVES.  I ALSO AGREE
WITH HIS GENERAL ATTITUDE AGAINST A PRISONER BEING BROUGHT FROM
ALCATRAZ - OR ANY OTHER FEDERAL PRISON - TO ARGUE HIS OWN CASE ON
APPEAL.  MY DIFFERENCE WITH HIM IS THAT I WOULD NOT BOLT THE DOOR TO
SUCH AN UNDESIRABLE PRACTICE, AS A MATTER OF LAW, BUT MERELY LEAVE IT
AS A RIGOROUS RULE OF PRACTICE.  THE POWER TO DEPART FROM THIS RULE
OUGHT NOT TO BE WHOLLY FORECLOSED, EVEN THOUGH OPPORTUNITY FOR ITS
EXERCISE IS LEFT FOR CONTINGENCIES NOT EASILY FORESEEABLE. 

THE OFFICE OF THE WRIT OF HABEAS CORPUS PRECLUDES DEFINITIVE
FORMULATION OF ITS LIMITATIONS PRECISELY BECAUSE IT IS THE PREROGATIVE
WRIT AVAILABLE FOR VINDICATING LIBERTIES.  SEE SUNAL V. LARGE, 332 U.S.
174, 184, 187.  THEREFORE, I WOULD NOT PRECLUDE THE USE OF THE WRIT TO
BRING A CONVICT BEFORE A CIRCUIT COURT OF APPEALS WHERE CIRCUMSTANCES
IN THE INTERESTS OF JUSTICE MAKE HIS PRESENCE COMPELLING.  SEE ADAMS V.
UNITED STATES EX REL. MCCANN, 317 U.S. 269, 272-75.  IT IS A VERY
DIFFERENT THING TO JUDGE THE USE OF THE WRIT FOR THE PURPOSE OF HAVING
AN INCARCERATED PETITIONER ARGUE HIS OWN CASE ON APPEAL BY THE ORDINARY
STANDARDS OF JUDICIAL DISCRETION.  TO ACKNOWLEDGE SUCH POWER IN THE
CIRCUIT COURTS OF APPEALS IMPLIES TOO BROAD AN AUTHORITY, IN THAT THE
ABUSE OF ITS EXERCISE IN GRANTING THE WRIT IS TOO NARROW A BASIS FOR
REVIEW.  A GENERAL RULE SHOULD PRECLUDE THE USE OF THE WRIT FOR THE
PURPOSE OF TAKING A PRISONER OUT OF CONFINEMENT MERELY TO ARGUE HIS OWN
CASE ON APPEAL FROM DISMISSAL OF A PETITION FOR HABEAS CORPUS AFTER
CONVICTION.  EVERY LEGITIMATE RIGHT OF SUCH A PRISONER CAN BE
SAFEGUARDED BY MEANS MUCH MORE CONSONANT WITH THE FAIR AND SEEMLY AND
WISE ADMINISTRATION OF JUSTICE. 

THE CHIEF JUSTICE AND MR. JUSTICE REED JOIN IN THIS DISSENT. 

MR. JUSTICE JACKSON, DISSENTING. 

I CANNOT AGREE THAT THE DISTRICT COURT ERRED IN DISMISSING THIS
UNSUPPORTED AND UNSUBSTANTIATED FOURTH HABEAS CORPUS PETITION, WHETHER
HIS ACTION IN SO DOING WAS BASED ON ITS OBVIOUS LACK OF MERIT OR ON THE
PRISONER'S ABUSE OF THE WRIT.  NOR CAN I AGREE THAT APPEARANCE OF A
PRISONER MERELY TO ARGUE HIS CASE IS "NECESSARY FOR THE EXERCISE" OF
THE JURISDICTION OF THE COURT OF APPEALS AND "AGREEABLE TO THE USAGES
AND PRINCIPLES OF LAW" AS IS REQUIRED BY SEC. 262 OF THE JUDICIAL CODE,
28 U.S.C. SEC. 377. 

THIS CASE IS TYPICAL OF MANY BASED ON REPEATED HABEAS CORPUS
PETITIONS BY THE SAME PRISONER.  FN1  THIS PETITIONER IS SERVING A LONG
TERM FOR ARMED BANK ROBBERY.  CONFINEMENT IS NEITHER ENJOYABLE NOR
PROFITABLE.  AND IT IS SAFE TO ASSUME THAT IT NEITHER GIVES RISE TO NEW
SCRUPLES NOR MAGNIFIES OLD ONES WHICH WOULD HANDICAP PETITIONER'S
PREPARATION OF ONE HABEAS CORPUS APPLICATION AFTER ANOTHER.  IF THE
TRIAL COURT RULES ONE SET OF ALLEGATIONS DEFICIENT, CONCOCTION OF
ANOTHER SET MAY BRING SUCCESS.  UNDER THIS DECISION, FAILURE TO ALLEGE
THE MOST OBVIOUS GROUNDS IN EARLIER APPLICATIONS, OR TO SUPPORT THEM
WITH FACTS IN A LATER PETITION, IS NOT FATAL.  THE NUMBER OF TIMES THE
GOVERNMENT MUST RE-TRY THE CASE DEPENDS ONLY ON THE PRISONER'S
INGENUITY, INDUSTRY AND IMAGINATION.  THIS PRISONER, IN HIS FOURTH
PETITION IN EIGHT YEARS, HAS NOW GOTTEN AROUND TO CHARGING THAT, AT HIS
TRIAL IN 1938, THE GOVERNMENT KNOWINGLY EMPLOYED FALSE TESTIMONY TO
OBTAIN THE CONVICTION.  THIS ISSUE SUBSTANTIALLY INVOLVES A RETRIAL OF
THE ORIGINAL CONVICTION AFTER MORE THAN TEN YEARS HAVE PASSED BY,
MEMORIES ARE BLURRED, EVIDENCE IS LOST, AND PARTIES DISPERSED.  THE
PETITION IS UNACCOMPANIED BY ANY PARTICULARS SUPPORTING THIS MOST
SERIOUS CHARGE AGAINST THE COURT AND RESPONSIBLE OFFICERS OF THE LAW. 
THE PRISONER, OF COURSE, HAS NOTHING TO LOSE IN ANY EVENT.  PERJURY HAS
FEW TERRORS FOR A MAN ALREADY SENTENCED TO 65 YEARS' IMPRISONMENT FOR A
CRIME OF VIOLENCE.  EVEN SUCH HONOR AS EXISTS AMONG THIEVES IS NOT TOO
PRECIOUS TO BE SACRIFICED FOR A CHANCE AT LIBERTY.  CONSEQUENTLY, HIS
VARYING ALLEGATIONS CAN RUN THE GAMUT OF ALL THOSE PERPETUATED IN THE
PAGES OF THE UNITED STATES REPORTS.    THE COURT NOW HOLDS THAT SUCH
IRRESPONSIBLE, GENERAL, UNSUPPORTED AND BELATED ACCUSATIONS MUST BE
TRIED OUT; FURTHER, THE DISTRICT JUDGE ERRED IN THAT HE DID NOT REQUEST
THE PERENNIAL PETITIONER TO FILL IN DETAILS, THE ABSENCE OF WHICH,
UNDER ESTABLISHED RULES, JUSTIFIED HIS DISMISSAL OF THE PETITION
ACTUALLY FILED.  I THINK THAT THE GOVERNMENT SHOULD NOT BE REQUIRED TO
GO TO TRIAL (OR RATHER, RETRIAL) ON A CASE OF THIS KIND, UNLESS THE
PETITIONER, WITHOUT PROMPTING OR SOLICITATION BY THE COURT, ALLEGES
WITH PARTICULARITY CONDUCT WHICH WOULD BE SUFFICIENT, IF PROVED, TO
ENTITLE HIM TO RELEASE.  IF HE DOES NOT HAVE SUCH FACTS, HE IS DOOMED
ULTIMATELY TO FAIL; IF HE DOES HAVE THEM, HE SHOULD NOT BE PERMITTED TO
FORCE THE COURT AND THE GOVERNMENT INTO FURTHER LITIGATION UNTIL HE HAS
DISCLOSED THEM.  AND CERTAINLY IT IS NOT TOO MUCH TO REQUIRE THAT ON A
FOURTH PETITION, EIGHT YEARS AFTER CONVICTION, THE PETITIONER MUST ALSO
SET FORTH FACTS WHICH WILL EXCUSE HIS FAILURE TO RAISE HIS QUESTION IN
EARLIER PETITIONS INSTEAD OF AT A PERIOD SO REMOTE FROM HIS TRIAL. 

MOREOVER, IF ANY ONE OF PETITIONER'S APPLICATIONS AND ACCOMPANYING
FACTS CONVINCE THE TRIAL JUDGE THAT A HEARING ON THE MERITS IS
JUSTIFIED, THE PRISONER'S PRESENCE IN THE TRIAL COURT, TO TESTIFY, MAY
FAIRLY BE SAID TO BE NECESSARY.  THE PROCEDURE FOR BRINGING HIM BEFORE
THAT COURT TO GIVE HIS EVIDENCE IS OF ANCIENT ORIGIN.  BUT IT IS
ANOTHER AND QUITE DIFFERENT MATTER TO SAY THAT A LAYMAN'S PRESENCE,
SOLELY TO TAKE PART IN A LEGAL ARGUMENT ON A SETTLED RECORD, IS
NECESSARY FOR THE EXERCISE OF THE JURISDICTION OF THE APPELLATE COURT. 
THE ONLY SUGGESTED AUTHORITY FOR SO ORDERING A JAILER TO FETCH A
PRISONER TO ARGUE HIS OWN APPEAL IS SEC. 262 OF THE JUDICIAL CODE, 28
U.S.C. SEC. 377, WHICH PROVIDES THAT "THE SUPREME COURT, THE CIRCUIT
COURTS OF APPEALS, AND THE DISTRICT COURTS SHALL HAVE POWER TO ISSUE
ALL WRITS NOT SPECIFICALLY PROVIDED FOR BY STATUTE," AND IF THE STATUTE
STOPPED HERE, THE COURT MIGHT HAVE SOME BASIS FOR ITS ACTION.  BUT THE
RESPECTIVE JURISDICTIONS, AND AGREEABLE TO THE USAGES AND PRINCIPLES OF
LAW." 

EVEN IF THE COURT OF APPEALS, OR THIS COURT, BELIEVED THAT THE FORMER
SHOULD HAVE THE POWER TO SUMMON PRISONERS FOR ARGUMENT OF THEIR
APPEALS, THAT IS NOT THE ISSUE.  THE ISSUE IS, CAN THE REQUIREMENTS OF
THE STATUTE BE MET?  IS THE PRISONER'S PRESENCE MERELY TO ARGUE HIS
CASE "NECESSARY FOR THE EXERCISE" OF THE APPELLATE COURT'S
JURISDICTION?  I THINK IT IS FAR-FETCHED TO SO HOLD.  FN2  SUCH COURTS
MAY, AND USUALLY DO, APPOINT COUNSEL FOR A PRISONER WHO CANNOT OBTAIN
ONE FOR HIMSELF.  IF THERE IS MORE THAT THE DEFENDANT HIMSELF WANTS TO
PRESENT, IT CAN ALWAYS BE DONE IN WRITING.  MANY CASES ARE DECIDED IN
APPELLATE COURTS SOLELY ON WRITTEN BRIEFS.  BUT THE COURT FEARS THAT
SOME PRISONERS LIKE THIS ONE MAY NOT ONLY REFUSE COUNSEL BUT ALSO WISH
NOT TO REST ON A WRITTEN BRIEF.  UNDER THE STATUTE HOWEVER, IT IS NOT
THE CONVENIENCE OR THE EGOTISM OF THE PRISONER THAT CONFERS POWER TO
GRANT A WRIT - IT IS THE NECESSITY OF THE WRIT FOR THE EXERCISE OF THE
COURT'S JURISDICTION.  IT IS DIFFICULT FOR ME TO BELIEVE THAT
PRISONERS, WHOM THE COURT SO OFTEN FORGIVES FOR VIOLATING ALL RULES OF
PLEADING AND PROCEDURE ON THE GROUND OF LAY IGNORANCE, CAN BE A
NECESSARY SOURCE OF LIGHT AND LEADING TO AN APPELLATE COURT.  THE
ABSENCE OF SUCH A NECESSITY IS, I SUPPOSE, THE REASON WHY NO SUCH WRIT
HAS BEEN KNOWN TO THE LAW UNTIL TODAY'S REVELATION, AND WHY THE STATUTE
DOES NOT ALLOW IT.  BUT THE COURT BY THIS DECISION MAKES IT PROPER FOR
ANY PRISONER, WHOSE APPEAL FROM EITHER CONVICTION OR DENIAL OF ANY ONE
OF HIS MULTITUDINOUS PETITIONS FOR HABEAS CORPUS IS BEFORE THE COURT OF
APPEALS, TO INSIST THAT HE BE TRANSPORTED TO THAT COURT TO ARGUE THE
CASE AND TO DEMAND A RULING BY THE COURT ON THAT ISSUE AS WELL AS ON
THE MERITS.  THIS SEEMS TO OPEN THE GATE TO NEW AND FRUITLESS
LITIGATION. 

ADMITTEDLY, THE STATUTE'S SECOND REQUIREMENT, VIZ:  THAT THE WRIT BE
"AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW," CANNOT BE MET.  IT IS
APPARENT THAT THE LATTER CLAUSE IS A LIMITATION ON THE EARLIER SWEEPING
GRANT OF POWER.  EX PARTE BOLLMAN AND SWARTWOUT, 4 CRANCH 75, 99.  THE
CIRCUIT COURTS OF APPEALS ARE STATUTORY COURTS AND MUST LOOK TO A
STATUTORY BASIS FOR ANY JURISDICTION THEY EXERCISE.  BUT IN THIS CASE
THE COURT IS AUTHORIZING A COMPLETE OVERRIDING OF THE LIMITATION
CONGRESS HAS SEEN FIT TO IMPOSE.  THE COURT'S OPINION POINTS OUT THAT
EMPLOYMENT OF THE WRIT OF HABEAS CORPUS FOR THIS PURPOSE HAS NEVER BEEN
A USAGE OR PRINCIPLE OF THE COMMON LAW.  NO STATUTORY OR DECISIONAL
FN3  BASIS FOR SUCH A USAGE OR PRINCIPLE IS CITED.  YET, IGNORING THE
LIMITATIONS OF THIS VERY STATUTE, THE COURT CONCLUDES THAT THE WRIT CAN
JUST BE ISSUED ANYWAY.  I CANNOT SUBSCRIBE TO THIS SORT OF STATUTORY
"CONSTRUCTION." 

THIS IS ONE OF A LINE OF CASES BY WHICH THERE IS BEING PUT INTO THE
HANDS OF THE CONVICT POPULATION OF THE COUNTRY NEW AND UNPRECEDENTED
OPPORTUNITIES TO RE-TRY THEIR CASES, OR TO TRY THE PROSECUTING ATTORNEY
OR THEIR OWN COUNSEL, AND KEEP THE GOVERNMENT AND THE COURTS LITIGATING
THEIR CASES UNTIL THEIR SENTENCES EXPIRE OR ONE OF THEIR MYRIAD CLAIMS
STRIKES A RESPONSIVE CHORD OR THE PRISONERS MAKE THE BEST OF INCREASED
OPPORTUNITIES TO ESCAPE.  I THINK THIS COURT, BY INFLATING THE GREAT
AND BENEFICENT WRIT OF LIBERTY BEYOND A SOUND BASIS, IS BRINGING ABOUT
ITS EVENTUAL DEPRECIATION.  FN4 

FN1  PETITIONER WAS CONVICTED OF ARMED BANK ROBBERY IN APRIL, 1938. 
AFTER THAT DATE, AND PRIOR TO THE FILING OF THIS CURRENT HABEAS CORPUS
PETITION, HE TOOK THE FOLLOWING STEPS SEEKING HIS LIBERTY: 

1.  IN 1940, PETITIONED THE COURT OF APPEALS FOR MANDAMUS TO FORCE
THE TRIAL JUDGE TO ACT ON AN APPLICATION FOR APPEAL; THAT COURT FOUND
NO SUCH APPLICATION WAS THEN PENDING AND DENIED THE PETITION; THIS
COURT DENIED CERTIORARI, 311 U.S. 703, AND A REHEARING, 311 U.S. 729. 

2.  IN 1940, FILED AN APPLICATION FOR HABEAS CORPUS.  AFTER ARGUMENT
BY COURT-APPOINTED COUNSEL, THE APPLICATION WAS DISMISSED.  THE COURT
OF APPEALS AFFIRMED, 125 F.2D 806; THIS COURT DENIED CERTIORARI, 316
U.S. 677, AND DENIED REHEARING, 316 U.S. 712, THE LATTER DECISION BEING
ANNOUNCED JUNE 1, 1942. 

3.  ON SEPTEMBER 24, 1942, FILED ANOTHER HABEAS CORPUS PETITION. 
AFTER HEARING, PARTICIPATED IN BY COURT-APPOINTED COUNSEL, THE PETITION
WAS DISMISSED.  THE COURT OF APPEALS AFFIRMED, 144 F.2D 260; THIS COURT
DENIED CERTIORARI, 323 U.S. 789, AND DENIED REHEARING, 323 U.S. 819,
THE LATTER DECISION BEING ANNOUNCED ON JANUARY 29, 1945. 

4.  PRIOR TO AUGUST 22, 1945, FILED THIRD HABEAS CORPUS PETITION,
WHICH WAS DENIED ON THAT DATE, 61 F.SUPP.  995. 

THE CURRENT PETITION WAS FILED IN JANUARY, 1946. 

FN2  IT IS A VERY DIFFERENT THING TO FIND THE PRESENCE OF THE
PRISONER "NECESSARY" UNDER SUCH CIRCUMSTANCES AS IN ADAMS V. U.S. EX
REL. MCCANN, 317 U.S. 269, 274, WHERE THIS COURT EXPLAINED THE
NECESSITY AS FOLLOWS: 

"THE CIRCUMSTANCES THAT MOVED THE COURT BELOW TO THE EXERCISE OF ITS
JURISDICTION WERE THE PECULIAR DIFFICULTIES INVOLVED IN PREPARING A
BILL OF EXCEPTIONS.  THE STENOGRAPHIC MINUTES HAD NEVER BEEN TYPED. 
THE RELATOR CLAIMED THAT HE WAS WITHOUT FUNDS.  SINCE HE WAS UNABLE TO
RAISE THE BAIL FIXED BY THE TRIAL JUDGE, HE HAD BEEN IN CUSTODY SINCE
SENTENCE AND THEREFORE HAD NO OPPORTUNITY TO PREPARE A BILL OF
EXCEPTIONS.  THE COURT DOUBTED 'WHETHER ANY (BILL) CAN EVER BE MADE UP
ON WHICH THE APPEAL CAN BE HEARD  ...  IN THE PARTICULAR CIRCUMSTANCES
OF THE CASE AT BAR, IT SEEMS TO US THAT THE WRIT IS "NECESSARY TO THE
COMPLETE EXERCISE" OF OUR APPELLATE JURISDICTION BECAUSE  ...  THERE IS
A DANGER THAT IT CANNOT BE OTHERWISE EXERCISED AT ALL AND A CERTAINTY
THAT IT MUST IN ANY EVENT BE A GOOD DEAL HAMPERED.'" 

FN3  THE COURT SAYS THAT IT "TRANSLATES" THE "ASSUMPTION," FOUND IN
ONE DECISION OF THIS COURT, ONE OF A COURT OF APPEALS, AND ONE OF A
STATE COURT, INTO A SPECIFIC HOLDING THAT THE CIRCUIT COURTS OF APPEALS
DO HAVE THIS POWER.  THE DICTUM IN SCHWAB V. BERGGREN, 143 U.S. 442,
449 IS MERELY THIS:  "  ...  BUT NEITHER REASON NOR PUBLIC POLICY
REQUIRE THAT HE SHALL BE PERSONALLY PRESENT PENDING PROCEEDINGS IN AN
APPELLATE COURT WHOSE ONLY FUNCTION IS TO DETERMINE WHETHER, IN THE
TRANSCRIPT SUBMITTED TO THEM, THERE APPEARS ANY ERROR OF LAW TO THE
PREJUDICE OF THE ACCUSED; ESPECIALLY, WHERE, AS IN THIS CASE, HE HAD
COUNSEL TO REPRESENT HIM IN THE COURT OF REVIEW.  WE DO NOT MEAN TO SAY
THAT THE APPELLATE COURT MAY NOT, UNDER SOME CIRCUMSTANCES, REQUIRE HIS
PERSONAL PRESENCE; BUT ONLY THAT HIS PRESENCE IS NOT ESSENTIAL TO ITS
JURISDICTION TO PROCEED WITH THE CASE."  IN GOLDSMITH V. SANFORD, 132
F.2D 126, CERT. DEN.  318 U.S. 762, REHEARING DENIED 318 U.S. 799, THE
COURT SAID:  "  ...  WE KNOW OF NO PRECEDENT FOR TAKING A PRISONER FROM
THE PENITENTIARY THAT HE MIGHT BE PRESENT TO ARGUE IN PERSON HIS APPEAL
FROM AN ADVERSE JUDGMENT ON HABEAS CORPUS.  ...  IF THERE BE POWER TO
ORDER THE REMOVAL WHICH WAS REQUESTED, DISCRETION WAS WELL EXERCISED IN
REFUSING IT."  IN DONNELLY V. STATE, 26 N.J. LAW 463, AFFIRMED, 26 N.J.
LAW 601, WHICH COULD HARDLY BE EVEN PERSUASIVE HERE, THE COURT HELD
THAT THE PRISONER'S PRESENCE WAS NOT NECESSARY FOR JURISDICTION, NOR
WAS IT REQUIRED AS A TECHNICAL NECESSITY OR A MATTER OF RIGHT. 

THE "TRANSLATION" OF THESE "ASSUMPTIONS" INTO A HOLDING INVOLVES,
UNDER THIS STATUTE, A DECISION THAT THESE THREE ISOLATED STATEMENTS
REPRESENT THE "USAGES AND PRINCIPLES OF LAW."  THOSE TERMS HAVE BEEN IN
THE STATUTE SINCE THE ORIGINAL JUDICIARY ACT OF 1789, AND THE COURT
ADMITS THERE WAS NO SUCH USAGE OR PRINCIPLE PRIOR TO THAT TIME.  THESE
THREE LATER CASES ARE THEREFORE THE ONLY SHADOW OF A BASIS FOR HOLDING
THAT A WRIT SUCH AS THE COURT NOW DIRECTS MEETS THE REQUIREMENTS OF THE
STATUTE.  TO CONSIDER SUCH UNAUTHORITATIVE SOURCES AS A PRECEDENT ON
THIS POINT WOULD BE BAD ENOUGH - BUT TO ENLARGE THEM TO A USAGE OR
PRINCIPLE OF LAW IS EVEN LESS WARRANTED.  RELIANCE ON THESE ISOLATED
PRONOUNCEMENTS, WHICH, EITHER INDIVIDUALLY OR COLLECTIVELY, ARE FAR
FROM BEING AUTHORITY ON THIS POINT, SEEMS CLOSE TO CREATING PRECEDENTS
OUT OF THIN AIR. 

FN4  SUCH DEPRECIATION HAS ALREADY SET IN.  SEE GOODMAN, "USE AND
ABUSE OF THE WRIT OF HABEAS CORPUS," 7 F.R.D. 313, STATING, AT PAGE
315, THAT FROM JUNE 1937 TO JUNE 1947 6 PRISONERS IN ALCATRAZ FILED A
TOTAL OF 68 PETITIONS, WHILE 57 OTHERS FILED 183 PETITIONS.  SEE ALSO
DORSEY V. GILL, 80 U.S. APP. D.C. 9, 148 F.2D 857, STATING (862-863)
THAT IN ONE FIVE-YEAR PERIOD ONE PRISONER FILED 50 PETITIONS IN THE
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA; FOUR OTHERS FILED 27, 24,
22 AND 20, RESPECTIVELY; AND 119 PRISONERS FILED 597 PETITIONS, AN
AVERAGE OF 5 EACH. 
..END :







HUNTER V. MARTIN, 334 U.S. 302 


NO. 643.  ARGUED APRIL 22, 1948.  - DECIDED MAY 24, 1948.  - 165 F.2D
215, REVERSED. 


A STATE PRISONER SENTENCED BY A FEDERAL COURT TO IMPRISONMENT FOR TEN
YEARS BEGINNING "AT THE EXPIRATION OF THE SENTENCE NOW BEING SERVED" IN
THE STATE PRISON, WHO IS PAROLED FROM THE STATE PRISON BEFORE
EXPIRATION OF THE STATE SENTENCE AND SURRENDERED BY STATE AUTHORITIES
TO FEDERAL CUSTODY, MUST BEGIN SERVING HIS FEDERAL SENTENCE IMMEDIATELY
AND IS NOT ENTITLED TO TEMPORARY FREEDOM PENDING EXPIRATION OF THE FULL
TERM OF THE STATE SENTENCE.  PP. 302-304. 

HUNTER, WARDEN, V. MARTIN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING, A DISTRICT COURT DISCHARGED THE WRIT
AND REMANDED A FEDERAL PRISONER TO CUSTODY.  THE CIRCUIT COURT OF
APPEALS REVERSED WITHOUT OPINION.  165 F.2D 215.  THIS COURT GRANTED
CERTIORARI.  333 U.S. 854.  REVERSED, P. 304. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS HELD PRISONER IN THE UNITED STATES PENITENTIARY AT
LEAVENWORTH, KANSAS.  HE PLEADED GUILTY TO CHARGES OF FORGING AND
UTTERING UNITED STATES TREASURY CHECKS.  HE WAS SENTENCED TO
IMPRISONMENT FOR TEN YEARS ON EACH COUNT, TO RUN CONCURRENTLY, AND THE
JUDGMENT PROVIDED THAT SENTENCE SHOULD "BEGIN TO RUN AT THE EXPIRATION
OF THE SENTENCE NOW BEING SERVED IN THE MISSOURI STATE PENITENTIARY." 
PETITIONER WAS RETURNED TO THE MISSOURI AUTHORITIES TO RESUME THE
SERVICE OF A STATE SENTENCE OF THREE YEARS FOR AUTOMOBILE THEFT.  ON
MAY 13, 1947, BEFORE EXPIRATION OF SUCH PERIOD, HE WAS PAROLED BY THE
STATE AND DELIVERED TO THE FEDERAL AUTHORITIES, BY WHOM HE HAS SINCE
BEEN HELD.  HE CONTENDS THAT THE FEDERAL SENTENCE DOES NOT BEGIN UNTIL
THE FULL TERM OF THE STATE SENTENCE HAS EXPIRED AND THAT, FOR THE
PERIOD OF PAROLE, HE IS ENTITLED TO FREEDOM.  THE ISSUE AS TO WHETHER
SUCH WORDING OF A FEDERAL SENTENCE ENTITLES THE PRISONER UNDER SUCH
CIRCUMSTANCES TO TEMPORARY FREEDOM IS ONE ON WHICH CIRCUIT COURTS OF
APPEALS ARE IN CONFLICT.  COMPARE UNITED STATES EX REL. LOMBARDO V.
MCDONNELL, 153 F.2D 919; JOHNSTON V. WRIGHT, 137 F.2D 914; KIRK V.
SQUIER, 150 F.2D 3; MARTIN V. HUNTER, 165 F.2D 215.  WE BROUGHT THE
CASE HERE ON CERTIORARI, 333 U.S. 854, TO RESOLVE THE CONFLICT. 

WE THINK IT CLEAR THAT THE PURPOSE OF THE CLAUSE DEFERRING
COMMENCEMENT OF SERVICE OF THE FEDERAL SENTENCE WAS TO PREVENT CONFLICT
BETWEEN THE STATE AND FEDERAL GOVERNMENTS.  THE PRESENT FEDERAL
IMPRISONMENT AVOIDS SUCH CONFLICT AND ACHIEVES THAT PURPOSE.  MISSOURI
AUTHORITIES HAVE RELEASED PETITIONER FROM THEIR CUSTODY AND SURRENDERED
HIM FOR THE APPARENT PURPOSE OF SERVING HIS FEDERAL SENTENCE AND HAVE
RESERVED CONTROL OVER HIM AS A PAROLEE ONLY IN EVENT HE IS NOT KEPT IN
PRISON DURING THE PERIOD OF THE FEDERAL SENTENCE.  FOR ALL PRACTICAL
PURPOSES CONTEMPLATED BY THE JUDGMENT, THE STATE SENTENCE HAS EXPIRED -
AT LEAST INSOFAR AS IT WAS AN OBSTACLE TO SERVICE OF THE FEDERAL
SENTENCE. 

TO HOLD OTHERWISE WOULD MEAN THAT A MAN ALREADY FINALLY ADJUDGED
GUILTY OF A SERIOUS FEDERAL CRIME AND SENTENCED TO TEN YEARS
IMPRISONMENT WOULD BE LEFT AT LARGE AND FREE OF ALL RESTRAINT FOR AN
INTERLUDE BETWEEN RELEASE FROM THE STATE PRISON AND COMMENCEMENT OF THE
FEDERAL TERM.  WE DO NOT THINK SUCH A RESULT IS REQUIRED OR INTENDED
UNDER THE STATUTE, 18 U.S.C. SEC. 709A,  FN1  OR UNDER THE TERMS OF THE
SENTENCE AS IMPOSED. 

THE DISTRICT COURT, AFTER FULL HEARING, DISMISSED THE WRIT OF HABEAS
CORPUS AND REMANDED PETITIONER TO CUSTODY TO SERVE HIS SENTENCE.  WE
THINK THIS WAS A CORRECT DISPOSITION OF THE MATTER.  THE CIRCUIT COURT
OF APPEALS' DECISION TO THE CONTRARY IS ERROR.  JUDGMENT REVERSED. 

FN1  THE ACT OF JUNE 29, 1932, C. 310, SEC. 1, 47 STAT. 381. 
..END :



BRIGGS V. PENNSYLVANIA R. CO., 334 U.S. 304 


NO. 530.  ARGUED MARCH 30, 1948.  - DECIDED MAY 24, 1948.  - 164 F.2D
21, AFFIRMED. 


1.  IN A CIVIL SUIT IN A FEDERAL DISTRICT COURT, THE JURY RENDERED A
VERDICT FOR PLAINTIFF; BUT THE COURT DISMISSED THE COMPLAINT FOR LACK
OF JURISDICTION.  THE CIRCUIT COURT OF APPEALS REVERSED AND DIRECTED
THAT JUDGMENT BE ENTERED ON THE VERDICT FOR PLAINTIFF; BUT ITS MANDATE
MADE NO PROVISION FOR INTEREST.  HELD:  IN ENTERING JUDGMENT UNDER THE
MANDATE, THE DISTRICT COURT MAY NOT ADD INTEREST FROM THE DATE OF THE
VERDICT TO THE DATE OF JUDGMENT.  PP. 305-307. 

2.  THE RULE THAT AN INFERIOR COURT HAS NO POWER OR AUTHORITY TO
DEVIATE FROM A MANDATE ISSUED BY AN APPELLATE COURT INTERDICTS
ALLOWANCE OF INTEREST NOT PROVIDED FOR IN THE MANDATE.  P. 306. 

BRIGGS, ADMINISTRATRIX, V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

IN A SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE JURY
RETURNED A VERDICT FOR THE PLAINTIFF BUT THE DISTRICT COURT DISMISSED
THE COMPLAINT FOR LACK OF JURISDICTION.  THE CIRCUIT COURT OF APPEALS
REVERSED, 153 F.2D 841, AND DIRECTED THAT JUDGMENT BE ENTERED ON THE
VERDICT.  THE DISTRICT COURT ENTERED JUDGMENT FOR THE AMOUNT OF THE
VERDICT PLUS INTEREST FROM THE DATE THEREOF TO THE DATE OF JUDGMENT. 
THE CIRCUIT COURT OF APPEALS MODIFIED THE JUDGMENT TO EXCLUDE THE
INTEREST.  164 F.2D 21.  THIS COURT GRANTED CERTIORARI.  333 U.S. 836. 
AFFIRMED, P. 307. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE FIRST PRESENTS THE QUESTION WHETHER A PLAINTIFF RECOVERING
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SEC. 51, IS
ENTITLED TO HAVE INTEREST ON THE VERDICT FOR THE INTERVAL BETWEEN ITS
RETURN AND THE ENTRY OF JUDGMENT, WHERE THE CIRCUIT COURT OF APPEALS'
MANDATE WHICH AUTHORIZED THE JUDGMENT CONTAINS NO DIRECTION TO ADD
INTEREST AND IS NEVER AMENDED TO DO SO. 

THE JURY RETURNED A VERDICT OF $42,500.  THE DISTRICT COURT THEN
GRANTED A MOTION, AS TO WHICH DECISION HAD BEEN RESERVED DURING THE
TRIAL, TO DISMISS THE COMPLAINT FOR LACK OF JURISDICTION, AND THE
JUDGMENT ENTERED WAS THEREFORE ONE OF DISMISSAL.  HOWEVER, THE CIRCUIT
COURT OF APPEALS REVERSED, 153 F.2D 841, AND DIRECTED THAT JUDGMENT BE
ENTERED ON THE VERDICT FOR PLAINTIFF.  WHEN THE DISTRICT COURT ENTERED
JUDGMENT, IT ADDED TO THE VERDICT INTEREST FROM THE DATE THEREOF TO THE
DATE OF JUDGMENT.  THE MANDATE OF THE CIRCUIT COURT OF APPEALS HAD MADE
NO PROVISION FOR INTEREST.  NO MOTION TO RECALL AND AMEND THE MANDATE
HAD BEEN MADE AND THE TERM AT WHICH IT WAS HANDED DOWN HAD EXPIRED. 
MOTION TO RESETTLE SO AS TO EXCLUDE THE INTEREST WAS DENIED BY THE
DISTRICT COURT.  THE CIRCUIT COURT OF APPEALS HAS MODIFIED THE JUDGMENT
TO EXCLUDE THE INTEREST IN QUESTION AND TO CONFORM TO ITS MANDATE, 164
F.2D 21, AND THE CASE IS HERE ON CERTIORARI, 333 U.S. 836. 

IN ITS EARLIEST DAYS THIS COURT CONSISTENTLY HELD THAT AN INFERIOR
COURT HAS NO POWER OR AUTHORITY TO DEVIATE FROM THE MANDATE ISSUED BY
AN APPELLATE COURT.  HIMELY V. ROSE, 5 CRANCH 313; THE SANTA MARIA, 10
WHEAT.  431; BOYCE'S EXECUTORS V. GRUNDY, 9 PET. 275; EX PARTE SIBBALD
V. UNITED STATES, 12 PET. 488.  THE RULE OF THESE CASES HAS BEEN
UNIFORMLY FOLLOWED IN LATER DAYS; SEE, FOR EXAMPLE, IN RE WASHINGTON &
GEORGETOWN R. CO., 140 U.S. 91; EX PARTE UNION STEAMBOAT COMPANY, 178
U.S. 317; KANSAS CITY SOUTHERN R. CO. V. GUARDIAN TRUST CO., 281 U.S.
1.  CHIEF JUSTICE MARSHALL APPLIED THE RULE TO INTERDICT ALLOWANCE OF
INTEREST NOT PROVIDED FOR IN THE MANDATE, HIMELY V. ROSE, 5 CRANCH 313;
MR. JUSTICE STORY EXPLAINED AND AFFIRMED THE DOCTRINE, THE SANTA MARIA,
10 WHEAT.  431; BOYCE'S EXECUTORS V. GRUNDY, 9 PET. 275.  WE DO NOT SEE
HOW IT CAN BE QUESTIONED AT THIS TIME.  IT IS CLEAR THAT THE INTEREST
WAS IN EXCESS OF THE TERMS OF THE MANDATE AND HENCE WAS WRONGLY
INCLUDED IN THE DISTRICT COURT'S JUDGMENT AND RIGHTLY STRICKEN OUT BY
THE CIRCUIT COURT OF APPEALS.  THE LATTER COURT'S MANDATE MADE NO
PROVISION FOR SUCH INTEREST AND THE TRIAL COURT HAD NO POWER TO ENTER
JUDGMENT FOR AN AMOUNT DIFFERENT THAN DIRECTED.  IF ANY ENLARGEMENT OF
THAT AMOUNT WERE POSSIBLE, IT COULD BE DONE ONLY BY AMENDMENT OF THE
MANDATE.  BUT NO MOVE TO DO THIS WAS MADE DURING THE TERM AT WHICH IT
WENT DOWN.  WHILE POWER TO ACT ON ITS MANDATE AFTER THE TERM EXPIRES
SURVIVES TO PROTECT THE INTEGRITY OF THE COURT'S OWN PROCESSES, HAZEL
ATLAS GLASS CO. V. HARTFORD CO., 322 U.S. 238, IT HAS NOT BEEN HELD TO
SURVIVE FOR THE CONVENIENCE OF LITIGANTS.  FAIRMONT CREAMERY CO. V.
MINNESOTA, 275 U.S. 70. 

THE PLAINTIFF HAS AT NO TIME MOVED TO AMEND THE MANDATE WHICH IS THE
BASIS OF THE JUDGMENT.  THAT IT MADE NO PROVISION FOR INTEREST WAS
APPARENT ON ITS FACE.  PLAINTIFF ACCEPTED ITS ADVANTAGES AND BRINGS HER
CASE TO THIS COURT, NOT ON THE PROPOSITION THAT AMENDMENT OF THE
MANDATE HAS BEEN IMPROPERLY REFUSED, BUT ON THE GROUND THAT THE MANDATE
SHOULD BE DISREGARDED.  SUCH A POSITION CANNOT BE SUSTAINED.  HENCE THE
QUESTION WHETHER INTEREST MIGHT, ON PROPER APPLICATION, HAVE BEEN
ALLOWED, IS NOT REACHED.  FN1  IN RE WASHINGTON & GEORGETOWN R. CO.,
140 U.S. 91.  FN2 AFFIRMED. 

FN1  COMPARE LOUISIANA & ARKANSAS R. CO. V. PRATT, 142 F.2D 847, WITH
BRIGGS V. PENNSYLVANIA R. CO., 164 F.2D 21. 

FN2  "WE DO NOT CONSIDER THE QUESTION AS TO WHETHER INTEREST WAS
ALLOWABLE BY LAW, OR RULE, OR STATUTE, ON THE ORIGINAL JUDGMENT OF THE
SPECIAL TERM, OR WHETHER IT WOULD HAVE BEEN PROPER FOR THE SPECIAL
TERM, IN RENDERING THE JUDGMENT, OR OTHERWISE, TO HAVE ALLOWED INTEREST
UPON IT, OR WHETHER IT WOULD HAVE BEEN PROPER FOR THE GENERAL TERM TO
DO SO; BUT WE RENDER OUR DECISION SOLELY UPON THE POINT THAT, AS
NEITHER THE SPECIAL TERM NOR THE GENERAL TERM ALLOWED INTEREST ON THE
JUDGMENT, AND AS THIS COURT AWARDED NO INTEREST IN ITS JUDGMENT OF
AFFIRMANCE, ALL THAT THE GENERAL TERM COULD DO, AFTER THE MANDATE OF
THIS COURT WENT DOWN, WAS TO ENTER A JUDGMENT CARRYING OUT THE MANDATE
ACCORDING TO ITS TERMS, AND SIMPLY AFFIRMING THE PRIOR JUDGMENT OF THE
GENERAL TERM, AND DIRECTING EXECUTION OF THE JUDGMENT OF THE SPECIAL
TERM  ...  WITH COSTS, AND WITHOUT INTEREST  ...  "  140 U.S. 91 AT
97. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS AND MR. JUSTICE MURPHY JOIN, DISSENTING. 

WE GRANTED CERTIORARI TO RESOLVE A CONFLICT BETWEEN THE DECISION OF
THE CIRCUIT COURT OF APPEALS, 164 F.2D 21, AND ONE RENDERED BY THE LIKE
COURT FOR THE FIFTH CIRCUIT IN LOUISIANA & ARKANSAS R. CO. V. PRATT,
142 F.2D 847. 

IN EACH CASE THE JURY RETURNED A VERDICT FOR THE PLAINTIFF, BUT THE
TRIAL COURT NEVERTHELESS GAVE JUDGMENT FOR THE DEFENDANT AS A MATTER OF
LAW; FN1  UPON APPEAL THAT JUDGMENT WAS REVERSED; AND THE CAUSE WAS
REMANDED WITH DIRECTIONS TO ENTER JUDGMENT ON THE VERDICT.  IN BOTH
CASES THE APPELLATE COURTS' MANDATES WERE SILENT CONCERNING INTEREST,
BUT THE TRIAL COURTS INCLUDED IN THE JUDGMENTS INTEREST FROM THE DATE
OF THE VERDICT, NOT MERELY FROM THE TIME WHEN JUDGMENT WAS ENTERED
FOLLOWING RECEIPT OF THE APPELLATE COURTS' MANDATES.  FN2  IN THE PRATT
CASE THIS ACTION OF THE TRIAL COURT WAS SUSTAINED AS CONFORMING TO THE
MANDATE; IN THIS CASE THE TRIAL COURT'S LIKE ACTION WAS REVERSED AS
BEING IN EXCESS OF AND, TO THAT EXTENT, CONTRARY TO THE MANDATE. 

THE TWO CASES THUS PRESENT SQUARELY CONFLICTING DECISIONS ON TWO
QUESTIONS:  (1) WHETHER THE APPELLATE COURT'S MANDATE INCLUDES THE
INTEREST PROVIDED BY 28 U.S.C. SEC. 811,  FN3  ALTHOUGH THE MANDATE
MAKES NO EXPLICIT MENTION OF INTEREST; (2) WHETHER, IF SO, THE INTEREST
ALLOWED BY THE SECTION PROPERLY RUNS FROM THE DATE OF THE VERDICT  FN4
OR ONLY FROM THE TIME OF ENTERING JUDGMENT AFTER RECEIPT OF THE
APPELLATE COURT'S MANDATE.  BOTH QUESTIONS ARE NECESSARILY INVOLVED ON
PETITIONER'S PRESENTATION AND SHOULD NOW BE DECIDED. 

THIS COURT, HOWEVER, DECLINES TO ANSWER THE SECOND QUESTION, BECAUSE
IT DETERMINES THE FIRST IN RESPONDENT'S FAVOR, ACCEPTING, ERRONEOUSLY I
THINK, THE DECISION OF THE CIRCUIT COURT OF APPEALS IN THIS PHASE OF
THE CASE.  FN5  THAT COURT CONSTRUED ITS MANDATE AS NOT INCLUDING
INTEREST.  THIS WAS ON THE BASIS THAT THE MANDATE WAS SILENT CONCERNING
INTEREST, MENTIONING EXPRESSLY ONLY THE PRINCIPAL SUM AWARDED BY THE
VERDICT.  IN SUCH A CASE THE COURT SAID, "THE DISTRICT COURT IS WITHOUT
POWER TO ENTER JUDGMENT FOR A DIFFERENT SUM."  FN6  HENCE, IT WAS HELD,
THE MANDATE WAS VIOLATED WHEN INTEREST WAS ADDED TO THAT SUM.  164 F.2D
AT 23.  AND EVEN UPON THE ASSUMPTION THAT THE MANDATE MIGHT HAVE BEEN
AMENDED TO INCLUDE INTEREST BY TIMELY APPLICATION FOR THAT PURPOSE,
THIS COULD NOT BE DONE AFTER EXPIRATION OF THE TERM AT WHICH THE
JUDGMENT WAS RENDERED, AS PETITIONER SOUGHT TO HAVE DONE.  FN7  IBID. 

IT IS THIS TREATMENT OF THE COURT'S MANDATE, NOW ACCEPTED BY THIS
COURT AND FORMING THE BASIS FOR ITS DISPOSITION OF THE CASE WITHOUT
REACHING THE QUESTION CERTIORARI WAS GRANTED TO REVIEW, FROM WHICH I
DISSENT.  IT CONFUSES SETTLED LINES OF DISTINCTION BETWEEN DIFFERENT
STATUTES AND OF DECISIONS RELATING TO THEM.  I THINK THESE WERE
CORRECTLY DRAWN AND OUGHT TO BE MAINTAINED.  IF THAT WERE DONE, WE
WOULD BE FORCED TO REACH AND DECIDE THE QUESTION NOW AVOIDED CONCERNING
THE EFFECT OF SEC. 811. 

ORDINARILY IT IS FOR THE COURT ISSUING A MANDATE TO DETERMINE ITS
SCOPE AND EFFECT, AND OTHER COURTS ARE BOUND BY ITS DETERMINATION.  BUT
THIS IS NOT ALWAYS SO.  IF IT WERE TRUE, FOR EXAMPLE, THAT THE SILENCE
OF A MANDATE OR A JUDGMENT REGARDING INTEREST INVARIABLY PRECLUDED ITS
RECOVERY, THE COURT'S DECISION AND THAT OF THE CIRCUIT COURT OF APPEALS
WOULD BE CORRECT.  BUT AN EXPLICIT PROVISION FOR INTEREST IS NOT ALWAYS
NECESSARY TO ITS INCLUSION, WHETHER IN A JUDGMENT OR A MANDATE.  IN
SOME INSTANCES INTEREST ATTACHES AS A MATTER OF LAW, EVEN THOUGH THE
MANDATE OR JUDGMENT IS WHOLLY SILENT REGARDING IT.  IN OTHERS EXPLICIT
MENTION IS NECESSARY TO ITS INCLUSION.  BLAIR V. DURHAM, 139 F.2D 260,
AND AUTHORITIES CITED. 

WHERE THE CLAIM FOR INTEREST RESTS UPON STATUTE, WHETHER THE ONE OR
THE OTHER EFFECT RESULTS DEPENDS UPON THE TERMS AND EFFECT OF THE
PARTICULAR STATUTE ON WHICH THE CLAIM IS FOUNDED.  BECAUSE NOT ALL
STATUTES ARE ALIKE IN THIS RESPECT, THE TERMS AND INTENT OF EACH MUST
BE EXAMINED, WHEN PUT IN QUESTION, TO ASCERTAIN WHETHER THE INTEREST
ALLOWED ATTACHES TO THE JUDGMENT OR THE MANDATE BY OPERATION OF LAW OR
ONLY UPON EXPLICIT JUDICIAL DIRECTION.  USUALLY THIS IS RESOLVED BY
DETERMINING WHETHER THE INTEREST ALLOWED IS TO BE GIVEN IN THE COURT'S
DISCRETION OR AS A MATTER OF RIGHT.  BLAIR V. DURHAM, SUPRA. 

AS THE BLAIR OPINION POINTS OUT, ORDINARILY THERE IS NO OCCASION TO
MENTION STATUTORY INTEREST EXPRESSLY, SINCE IT ATTACHES AS A LEGAL
INCIDENT FROM THE STATUTE ALLOWING IT.  FN8  ON THE OTHER HAND, IT HAS
OFTEN BEEN DECLARED THAT INTEREST IS NOT ALLOWED ON JUDGMENTS AFFIRMED
BY THIS COURT OR THE CIRCUIT COURTS OF APPEALS UNLESS SO ORDERED
EXPRESSLY.  FN9  THE BLAIR OPINION, HOWEVER, FURTHER NOTES THAT ALL THE
CASES SO DECLARING ARE FOUNDED UPON ANOTHER STATUTE THAN THE ONE
INVOLVED HERE, NAMELY, 28 U.S.C. SEC. 878.  FN10  AND, IT MAY BE ADDED,
THE DECISIONS RELIED UPON BY THIS COURT AND BY THE CIRCUIT COURT OF
APPEALS IN THIS PHASE OF THE CASE PRESENTLY BEFORE US INVOLVED EITHER
SEC. 878 OR THE ALLOWANCE OF OTHER RELIEF NOT BASED ON SEC. 811.  FN11 

IT BECOMES IMPORTANT THEREFORE TO ASCERTAIN WHETHER THE TWO STATUTES,
SECS. 811 AND 878, ARE ALIKE IN THEIR EFFECTS AS REQUIRING OR NOT
REQUIRING EXPLICIT MENTION OF THE INTEREST PROVIDED FOR IN ORDER FOR IT
TO BE INCLUDED IN A JUDGMENT OR MANDATE.  THE TWO SECTIONS ARE VERY
DIFFERENT IN THEIR TERMS.  SECTION 878 AUTHORIZES THE FEDERAL APPELLATE
COURTS TO AWARD DAMAGES FOR DELAY, FN12  AND IN TERMS MAKES THE AWARD
DISCRETIONARY WITH THE REVIEWING COURT.  SCHELL V. COCHRAN, 107 U.S.
625.  IT IS IN CONNECTION WITH SUCH AWARDS, AS HAS BEEN STATED, THAT
THE REPEATED DECISIONS NOW APPLIED TO PETITIONER'S CLAIM, GROUNDED
SOLELY ON SEC. 811, HAVE HELD THAT INTEREST IS TO BE DEEMED DENIED
UNLESS EXPLICITLY MENTIONED IN THE MANDATE.  FN13 

ON THE OTHER HAND, SEC. 811 IS VERY DIFFERENT.  NOTHING IN ITS TERMS
PERMITS AN IMPLICATION THAT THE AWARD OF INTEREST IS TO BE MADE AS A
MATTER OF JUDICIAL DISCRETION.  THE LANGUAGE IS MANDATORY.  FN14  THE
COMPARISON WITH THAT OF SEC. 878, GIVES THE INTEREST IT ENCOMPASSES AS
A MATTER OF RIGHT.  UNITED STATES V. VERDIER, 164 U.S. 213.  THIS IS SO
WHETHER THAT INTEREST BEGINS TO RUN AS OF ONE DATE OR ANOTHER. 
WHATEVER INTEREST THE SECTION ALLOWS ATTACHES AS AN INCIDENT FLOWING
FROM THE STATUTE AND IS DEPENDENT IN NO WAY UPON JUDICIAL DISCRETION OR
UPON JUDICIAL INADVERTENCE IN FAILING TO MENTION IT.  THIS WAS THE
EFFECT OF THE DECISIONS IN THE PRATT AND BLAIR CASES, AS WELL AS UNITED
STATES V. VERDIER, SUPRA. 

THE COURT'S DECISION IGNORES THESE VITAL DIFFERENCES IN THE STATUTES,
THEIR TERMS AND EFFECTS.  CONSEQUENTLY IT MISAPPLIES THE DECISIONS
RELATING TO SEC. 878 AND OTHER SITUATIONS WHERE THE RELIEF SOUGHT WAS
DISCRETIONARY, TO THIS CLAIM ARISING ONLY UNDER SEC. 811.  THE SAME
THING HAPPENED IN THE CIRCUIT COURT OF APPEALS.  HOWEVER, THE TWO
MANDATE'S FAILURE TO MENTION INTEREST EXCLUDED IT, THAT THERE CAN BE NO
JUSTIFICATION FOR CONFUSING OR IDENTIFYING THEM IN THIS RESPECT.  THE
DECISIONS CONSTRUING SEC. 878 ARE NEITHER CONTROLLING NOR PERTINENT TO
THAT PROBLEM WHEN IT ARISES UNDER SEC. 811. 

PETITIONER'S ONLY CLAIM IS UNDER THE LATTER SECTION.  HE SEEKS AS OF
RIGHT INTEREST GIVEN BY SEC. 811 AND ATTACHING TO THE JUDGMENT ENTERED
IN HIS FAVOR REGARDLESS OF THE MANDATE'S OMISSION TO MENTION INTEREST. 
THIS CLAIM IN MY OPINION IS WELL GROUNDED, TO WHATEVER EXTENT SEC. 811
ALLOWS INTEREST.  TO THAT EXTENT INTEREST ATTACHES AND WAS MEANT TO
ATTACH BY OPERATION OF LAW, AND REGARDLESS OF THE MANDATE'S
SPECIFICITY, TO THE JUDGMENT RENDERED FOR THE PLAINTIFF.  THE EXTENT TO
WHICH THE SECTION GIVES INTEREST IS, OF COURSE, A DISTINCT QUESTION,
DEPENDING IN THIS CASE ON WHETHER THE SECTION CONTEMPLATES THAT THE
INTEREST SHALL BEGIN TO RUN AT ONE DATE OR ANOTHER.    SINCE THE COURT
DOES NOT DECIDE THAT QUESTION, I RESERVE DECISION UPON IT.  BUT I
DISSENT FROM THE REFUSAL TO DECIDE IT NOW.  THE QUESTION IS OF
CONSIDERABLE IMPORTANCE FOR THE PROPER AND UNIFORM ADMINISTRATION OF
THE STATUTE; IT IS NOT ENTIRELY WITHOUT DIFFICULTY; FN15  AND THE
UNCERTAINTY AS WELL AS THE CONFLICT OF DECISION SHOULD BE ENDED.  THERE
IS NO GOOD REASON FOR PERMITTING THEIR INDEFINITE CONTINUANCE, TO THE
PERPLEXITY OF COURTS AND COUNSEL, AND TO AN ASSURED IF UNPREDICTABLE
AMOUNT OF INJUSTICE TO LITIGANTS. 

FN1  IN THIS CASE THE COMPLAINT WAS DISMISSED ON THE GROUND THAT THE
PLAINTIFF ADMINISTRATRIX LACKED CAPACITY TO BRING THE ACTION; IN THE
PRATT CASE THE TRIAL COURT FOUND THE VERDICT INCONSISTENT WITH ANSWERS
GIVEN TO SPECIAL INTERROGATORIES, AND THEREFORE GAVE JUDGMENT FOR THE
DEFENDANT. 

FN2  IN THE PRATT CASE THE DISTRICT COURT ALLOWED INTEREST NOT ONLY
FROM THE DATE OF THE VERDICT BUT ALSO FROM THE DATE OF JUDICIAL
DEMAND.  THIS WAS MODIFIED ON APPEAL TO ALLOW INTEREST ONLY FROM THE
DATE OF VERDICT.  142 F.2D 847. 

FN3  THE SECTION IS AS FOLLOWS:  "INTEREST SHALL BE ALLOWED ON ALL
JUDGMENTS IN CIVIL CAUSES, RECOVERED IN A DISTRICT COURT, AND MAY BE
LEVIED BY THE MARSHAL UNDER PROCESS OF EXECUTION ISSUED THEREON, IN ALL
CASES WHERE, BY THE LAW OF THE STATE IN WHICH SUCH COURT IS HELD,
INTEREST MAY BE LEVIED UNDER PROCESS OF EXECUTION ON JUDGMENTS
RECOVERED IN THE COURTS OF SUCH STATE; AND IT SHALL BE CALCULATED FROM
THE DATE OF THE JUDGMENT, AT SUCH RATE AS IS ALLOWED BY LAW ON
JUDGMENTS RECOVERED IN THE COURTS OF SUCH STATE."  REV. STAT. SEC. 966,
28 U.S.C. SEC. 811. 

FN4  ALTHOUGH SEC. 811 REQUIRES CALCULATION OF INTEREST "FROM THE
DATE OF THE JUDGMENT," THE CLAIM IS THAT, IN CIRCUMSTANCES LIKE THESE,
THE WORDS "THE JUDGMENT" SHOULD BE TAKEN TO SPECIFY NOT THE TIME OF
ENTERING JUDGMENT AFTER APPEAL AND ISSUANCE OF MANDATE FOLLOWING
REVERSAL, BUT THE TIME WHEN JUDGMENT PROPERLY WOULD HAVE BEEN ENTERED
BUT FOR THE DELAY CAUSED BY THE DEFENDANT'S RESISTANCE TO THE
PLAINTIFF'S RIGHTFUL CLAIM AS ESTABLISHED ON APPEAL.  CF. FED. RULES
CIV. PROC., RULE 58.  PETITIONER FIXES THIS TIME AS THE DATE OF THE
VERDICT.  IT IS NOT NECESSARY NOW TO CONSIDER WHETHER, IF PETITIONER'S
BROAD CONTENTION WERE ACCEPTED, THE PROPER DATE WOULD BE THAT OF THE
VERDICT OR THAT ON WHICH THE TRIAL COURT CONCLUDED ITS CONSIDERATION OF
THE CASE AND ENTERED THE ORIGINAL JUDGMENT FOR THE DEFENDANT. 

FN5  THE CIRCUIT COURT OF APPEALS NOT ONLY RESTED UPON ITS
CONSTRUCTION OF ITS MANDATE AND THE VIEW THAT IT COULD NOT BE ALTERED
AFTER THE TERM, BUT ALSO DECIDED THE QUESTION CONCERNING PETITIONER'S
RIGHT TO INTEREST UNDER SEC. 811 ADVERSELY TO HIS CLAIM THAT IT BEGINS
TO RUN PRIOR TO THE DATE OF THE TRIAL COURT'S ENTRY OF JUDGMENT AFTER
REMAND.  TO WHAT EXTENT THIS RULING INFLUENCED THE DECISION AS TO THE
MANDATE'S EFFECT IS NOT CLEAR. 

FN6  CITING IN RE WASHINGTON & GEORGETOWN R. CO., 140 U.S. 91;
THORNTON V. CARTER, 109 F.2D 316.  SEE TEXT INFRA AT NOTE 11. 

FN7  IN THE PRATT CASE THE TERM OF COURT AT WHICH THE ORIGINAL
MANDATE OF THE CIRCUIT COURT OF APPEALS HAD BEEN HANDED DOWN HAD
SIMILARLY EXPIRED. 

FN8  MASSACHUSETTS BENEFIT ASSN. V. MILES, 137 U.S. 689. 

FN9  SEE THE CASES CITED IN NOTE 10. 

FN10  139 F.2D 260, 261.  THE AUTHORITIES CITED WERE IN RE WASHINGTON
& GEORGETOWN R. CO., 140 U.S. 91; BOYCE'S EXECUTORS V. GRUNDY, 9 PET.
275; DE WITT V. UNITED STATES, 298 F. 182; GREEN V. CHICAGO, S. & C.R.
CO., 49 F. 907; HAGERMAN V. MORAN, 75 F. 97. 

FN11  NONE OF THE CASES ON WHICH THIS COURT BASES ITS DECISION
INVOLVES SEC. 811.  THEY INVOLVE EITHER SEC. 878(BOYCE'S EXECUTORS V.
GRUNDY, 9 PET. 275; IN RE WASHINGTON & GEORGETOWN R. CO., 140 U.S. 91,
WHICH THE MAJORITY EMPHASIZE BY QUOTATION); THE ALLOWANCE OF INTEREST
IN THE ABSENCE OF STATUTE AS, E.G., WHERE GOODS ARE ILLEGALLY SEIZED
AND DETAINED (HIMELY V. ROSE, 5 CRANCH 313; THE SANTA MARIA, 10 WHEAT. 
431); OR THE GRANTING OF RELIEF, OTHER THAN INTEREST, BEYOND THAT
DECREED IN THE MANDATE (EX PARTE SIBBALD V. UNITED STATES, 12 PET. 488;
EX PARTE THE UNION STEAMBOAT COMPANY, 178 U.S. 317; KANSAS CITY SO. R.
CO. V. GUARDIAN TRUST CO., 281 U.S. 1). 

OF THE CASES CITED BY THE CIRCUIT COURT OF APPEALS, SEE NOTE 6, IN RE
WASHINGTON & GEORGETOWN R. CO., SUPRA, IS A SEC. 878 CASE, AND THORNTON
V. CARTER, 109 F.2D 316, DOES NOT TURN ON SEC. 811. 

THUS, NONE OF THE AUTHORITIES RELIED ON GOVERNS THE QUESTION
PRESENTED HERE, VIZ., WHETHER UNDER SEC. 811 THE MANDATE OF THE
REVIEWING COURT EXCLUDED INTEREST AND WAS VIOLATED BY ITS ADDITION. 

FN12  THE SECTION IS AS FOLLOWS:  "WHERE, UPON A WRIT OF ERROR,
JUDGMENT IS AFFIRMED IN THE SUPREME COURT OR A CIRCUIT COURT OF
APPEALS, THE COURT SHALL ADJUDGE TO THE RESPONDENTS IN ERROR JUST
DAMAGES FOR HIS DELAY, AND SINGLE OR DOUBLE COSTS, AT ITS DISCRETION." 
REV. STAT. SEC. 1010, 28 U.S.C. SEC. 878. 

FN13 SEE THE AUTHORITIES CITED IN NOTE 10; SEE ALSO NOTE 11. 

FN14  "INTEREST SHALL BE ALLOWED ON ALL JUDGMENTS IN CIVIL CAUSES,
RECOVERED IN A DISTRICT COURT, AND MAY BE LEVIED  ...  "; "IT SHALL BE
CALCULATED  ...."  SEE NOTE 3. 

FN15  CF. NOTE 4.  THE MATTER IS SOMEWHAT COMPLICATED BY THE ANOMALY
WHICH WOULD RESULT FROM A DECISION THAT, WHILE SEC. 878 PROVIDES FOR
ALLOWANCE OF INTEREST AS DAMAGES FOR DELAY WHEN A DECISION IS AFFIRMED,
NEITHER THAT SECTION NOR SEC. 811 EXPLICITLY PROVIDES ANY SUCH
INDEMNITY WHEN A JUDGMENT FOR THE DEFENDANT IS REVERSED WITH DIRECTIONS
TO ENTER JUDGMENT FOR THE PLAINTIFF; AND BY THE CONSIDERATIONS,
OBVIOUSLY RELEVANT ON THE FACE OF SEC. 811, SEE NOTE 3, RELATIVE TO
SECURING UNIFORMITY IN THE ALLOWANCE OF INTEREST AS BETWEEN THE FEDERAL
COURTS AND COURTS OF THE STATE IN WHICH THE FEDERAL COURT SITS.  CF.
MASSACHUSETTS BENEFIT ASSN. V. MILES, 137 U.S. 689; CF. ALSO ERIE R.
CO. V. TOMPKINS, 304 U.S. 64. 
..END :









KENNEDY V. SILAS MASON CO., 334 U.S. 249 


NO. 590.  ARGUED APRIL 20, 1948.  - DECIDED MAY 17, 1948.  - 164 F.2D
1016, JUDGMENTS VACATED AND CAUSE REMANDED. 


PETITIONERS, WHO WORKED IN A GOVERNMENT-OWNED PLANT IN WHICH
RESPONDENT PRODUCED MUNITIONS UNDER A COST-PLUS-FIXED-FEE CONTRACT WITH
THE WAR DEPARTMENT, SUED RESPONDENT FOR OVERTIME COMPENSATION UNDER THE
FAIR LABOR STANDARDS ACT.  THE DISTRICT COURT'S SUMMARY JUDGMENT FOR
RESPONDENT WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  AMONG OTHER
ISSUES INVOLVED WERE WHETHER PETITIONERS WERE EMPLOYEES OF THE
GOVERNMENT OR OF THE PRIVATE CONTRACTOR AND WHETHER MUNITIONS PRODUCED
FOR SHIPMENT ACROSS STATE LINES ARE PRODUCED FOR "COMMERCE" AND ARE
"GOODS" WITHIN THE MEANING OF THE ACT.  SUBSTANTIAL CLAIMS OF THE
PETITIONERS WOULD BE DENIED OR LARGE SUMS ADDED TO THE COST OF THE WAR
BY THE ANSWERS TO THE QUESTIONS RAISED, AND MANY OTHER CASES WOULD BE
GOVERNED BY THE DECISION.  ALSO, CERTAIN CONTENTIONS WERE MADE IN THIS
COURT WHICH WERE NOT MADE IN THE COURTS BELOW; AND AN ADEQUATE
CONSIDERATION OF THE PROBLEM WOULD REQUIRE CONSIDERATION OF THREE
DIFFERENT ACTS OF CONGRESS, TWO OF WHICH WERE NOT PROPERLY BEFORE THIS
COURT ON THE RECORD IN THIS CASE.  HELD:  WITHOUT INTIMATING ANY
CONCLUSION ON THE MERITS, THE JUDGMENTS ARE VACATED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT FOR RECONSIDERATION AND AMPLIFICATION OF
THE RECORD IN THE LIGHT OF THIS COURT'S OPINION AND OF PRESENT
CONTENTIONS.  PP. 251-257. 

(A)  THE HEARING OF CONTENTIONS AS TO DISPUTED FACTS, THE SORTING OF
DOCUMENTS TO SELECT RELEVANT PROVISIONS, ASCERTAIN THEIR ULTIMATE FORM
AND MEANING, THE PRACTICAL CONSTRUCTION PUT ON THEM BY THE PARTIES, AND
REDUCTION OF A MASS OF CONFLICTING CONTENTIONS AS TO FACT AND INFERENCE
FROM FACTS, IS A TASK PRIMARILY FOR A TRIAL COURT INSTEAD OF THIS
COURT.  P. 256. 

(B) SUMMARY PROCEDURES UNDER RULE 56 OF THE FEDERAL RULES OF CIVIL
PROCEDURE, HOWEVER SALUTARY WHERE ISSUES ARE CLEAR-CUT AND SIMPLE,
PRESENT A TREACHEROUS RECORD FOR DECIDING ISSUES OF FAR-FLUNG IMPORT,
ON WHICH THIS COURT SHOULD DRAW INFERENCES WITH CAUTION FROM
COMPLICATED COURSES OF LEGISLATION, CONTRACTING AND PRACTICE.  PP. 256
257. 

(C)  AS A MATTER OF GOOD JUDICIAL ADMINISTRATION, THIS COURT WILL NOT
ATTEMPT TO DECIDE THESE FAR-REACHING ISSUES ON SUCH A RECORD PRESENTING
AN INDEFINITE FACTUAL FOUNDATION AND INVOLVING SUCH A WELTER OF NEW
CONTENTIONS AND STATUTORY PROVISIONS, BUT WILL AWAIT THE PRESENTATION
OF THESE ISSUES ON A RECORD CONTAINING A MORE SOLID BASIS OF FINDINGS
BASED ON LITIGATION OR ON A COMPREHENSIVE STATEMENT OF AGREED FACTS. 
P. 257. 

KENNEDY ET AL. V. SILAS MASON CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

IN AN ACTION BY PETITIONERS TO RECOVER OVERTIME COMPENSATION CLAIMED
UNDER THE FAIR LABOR STANDARDS ACT, THE DISTRICT COURT FIRST DENIED, 68
F.SUPP.  576, BUT LATER GRANTED, 70 F.SUPP.  929, SUMMARY JUDGMENT FOR
RESPONDENT.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  164 F.2D 1016. 
THIS COURT GRANTED CERTIORARI.  333 U.S. 841.  JUDGMENTS VACATED AND
CAUSE REMANDED, P. 257. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES QUESTIONS AS TO THE APPLICATION OF THE OVERTIME
PROVISIONS OF THE FAIR LABOR STANDARDS ACT  FN1  TO CERTAIN PERSONS WHO
WORKED IN A GOVERNMENT-OWNED PLANT IN WHICH RESPONDENT PRODUCED
MUNITIONS UNDER A COST-PLUS-FIXED-FEE CONTRACT WITH THE WAR
DEPARTMENT.  IT INVOLVES SUCH SUBSIDIARY ISSUES AS WHETHER THE
PLAINTIFFS WERE EMPLOYEES OF THE GOVERNMENT OR OF THE PRIVATE
CONTRACTOR, WHETHER MUNITIONS PRODUCED FOR SHIPMENT ACROSS STATE LINES
IN WAR USE ARE PRODUCED FOR "COMMERCE"  FN2  AND WHETHER THEY ARE
"GOODS"  FN3  WITHIN THE MEANING OF THE ACT.  SUBSTANTIAL CLAIMS OF
PETITIONERS MAY BE DENIED OR LARGE SUMS ADDED TO THE COST OF THE WAR BY
THE ANSWERS TO THESE QUESTIONS, AND MANY CASES OTHER THAN THIS WILL BE
CONTROLLED BY ITS DECISION. 

THE MANNER IN WHICH THE CASE HAS THUS FAR DEVELOPED RAISES THE
QUESTION WHETHER AS A MATTER OF GOOD JUDICIAL ADMINISTRATION THIS COURT
SHOULD ATTEMPT TO DECIDE THESE FAR-REACHING ISSUES ON THIS RECORD. 

NO ONE QUESTIONS THAT, TAKING ITS ALLEGATIONS AT THEIR FACE VALUE,
THE COMPLAINT IN THIS CASE STATES A CAUSE OF ACTION UNDER THE FAIR
LABOR STANDARDS ACT.  SUMMARY JUDGMENT HAS GONE AGAINST THE PLAINTIFFS
BECAUSE, BY AFFIDAVIT AND EXHIBITS, THE ALLEGATIONS HAVE BEEN FOUND
UNSUSTAINABLE.  THE DEFENDANT FILED A MOTION FOR SUMMARY JUDGMENT UNDER
RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE  FN4  "ON THE GROUND
THAT DEFENDANT IS ENTITLED TO A JUDGMENT AS A MATTER OF LAW."  THE
MOTION, SO FAR AS THE FAIR LABOR STANDARDS ACT WAS CONCERNED, WAS BASED
ON AN AFFIDAVIT "WHICH STATES FACTS SHOWING THAT AS A MATTER OF LAW
NEITHER COMPLAINANTS NOR DEFENDANT WERE COVERED" BY THE ACT IN THAT
NEITHER "WERE ENGAGED IN COMMERCE, OR IN THE PRODUCTION OF GOODS FOR
COMMERCE."  MADE PART OF THE AFFIDAVIT BY REFERENCE WERE DEFENDANT'S
CONSTRUCTION AND OPERATION CONTRACT WITH THE GOVERNMENT AND SOME 22
SUPPLEMENTS OR CHANGE ORDERS COVERING NEARLY 200 PAGES OF THE RECORD. 
THE COMPLAINANTS THEN FILED A SUPPLEMENTAL COMPLAINT WHICH ADDED BY
REFERENCE ALL REGULATIONS AND INTERPRETATIVE BULLETINS OF THE
DEPARTMENT OF LABOR AND ADMINISTRATOR OF THE FAIR LABOR STANDARDS ACT
CLARIFYING AND EXPLAINING IT.  AND, AS AGAINST DEFENDANT'S AFFIDAVIT
AND EXHIBITS, THE PLAINTIFFS, AS RECITED IN THE DISTRICT COURT'S
OPINION, OFFERED BY REFERENCE AFFIDAVITS OF THREE FORMER EMPLOYEES OF
THE CONTRACTOR SHOWING THE CUSTOMS OF PAYMENT AND OPERATION AS BEARING
ON THE ISSUE OF WHETHER THEY WERE GOVERNMENT EMPLOYEES OR THOSE OF THE
PRIVATE CONTRACTOR.  THE AFFIDAVITS DO NOT APPEAR IN THE RECORD, BUT
PARTS DEEMED RELEVANT ARE SET OUT IN THE COURT'S OPINION. 

ON THIS BASIS THE DISTRICT COURT FIRST DENIED SUMMARY JUDGMENT.  68
F.SUPP.  576.  IT WAS OF THE VIEW THAT THE PLAINTIFFS, WHATEVER THE
FORMS OF THE TRANSACTION, WERE IN REALITY EMPLOYED BY THE GOVERNMENT
AND, HENCE, THE FAIR LABOR STANDARDS ACT BY ITS OWN TERMS DID NOT COVER
THEM.  BUT IT HELD THAT THEY WERE COVERED BY SEC. 4(B) OF THE ACT OF
JULY 2, 1940,  FN5  AND WERE ENTITLED TO RECOVER OVERTIME UNDER IT. 

ON REHEARING, THE COURT CONCLUDED, HOWEVER, THAT NO REMEDY UNDER THIS
LATTER ACT WAS AVAILABLE TO THEM IN THIS ACTION AS IT WAS NOT PLEADED. 
ACCORDINGLY, IT GRANTED SUMMARY JUDGMENT AGAINST THEM.  70 F.SUPP. 
929.  THE CIRCUIT COURT OF APPEALS, FIFTH CIRCUIT, SITTING EN BANC
AFFIRMED.  164 F.2D 1016.  IT HELD THAT THE PLAINTIFFS WERE IN
SUBSTANCE EMPLOYEES OF THE UNITED STATES, THAT MUNITIONS WERE NOT A
PART OF COMMERCE WITHIN THE MEANING OF THE ACT, AND THAT IN ANY EVENT
MUNITIONS WERE NOT "GOODS" WITHIN THE MEANING OF THE ACT.  ONE JUDGE,
CONCURRING, DID NOT PASS ON THE QUESTION WHETHER PETITIONERS WERE
EMPLOYEES OF THE GOVERNMENT BUT HELD ONLY THAT MUNITIONS WERE PRODUCED
FOR WAR, NOT FOR COMMERCE.  ONE JUDGE DISSENTED ON THE GROUND THAT THE
WHOLE SYSTEM "WAS DESIGNED AND OPERATED SO THAT THE UNITED STATES
SHOULD NOT BE THE EMPLOYER" AND CONSIDERED THAT MUNITIONS PRODUCED FOR
TRANSPORTATION TO A PLACE OUTSIDE OF THE STATE WERE PRODUCED FOR
COMMERCE AND THOSE ENGAGED THEREIN WERE SUBJECT TO THE ACT.  THE CASE
IS HERE ON CERTIORARI, 333 U.S. 841. 

THE SILAS MASON COMPANY, IN A SENSE, IS NO MORE THAN A NOMINAL
DEFENDANT, FOR IT IS ENTITLED TO REIMBURSEMENT FROM THE GOVERNMENT. 
THE GOVERNMENT, THE ULTIMATE PARTY IN INTEREST, APPEARS THROUGH THE
DEPARTMENT OF JUSTICE IN SUPPORT OF THE STATUTORY BASIS FOR THE CLAIMS
AGAINST ITSELF.  BUT IT ADVISES US THAT "THE DEPARTMENT OF THE ARMY IS
OF THE VIEW THAT RESPONDENT'S POSITION HAS MERIT FOR THE REASONS SET
FORTH IN THE BRIEF FILED BY RESPONDENT.  THE ARMY IS CONCERNED WITH THE
GREAT COST TO WHICH THE GOVERNMENT WILL BE SUBJECTED IF THE NUMEROUS
SUITS AKIN TO THIS ARE LOST, OR EVEN IF IT MUST BEAR THE COST OF
DEFENDING THEM.  FURTHERMORE, THE ARMY BELIEVES THAT THE CLASSES OF
EMPLOYEES INVOLVED IN THESE CASES WERE WELL PAID, THAT THEY ACCEPTED
THEIR COMPENSATION WITHOUT COMPLAINT OR EXPECTATION OF RECEIVING MORE
UNTIL THIS LITIGATION WAS COMMENCED SOMETIME AFTER THE TERMINATION OF
THEIR EMPLOYMENT, AND THAT ACCORDINGLY THERE IS LITTLE EQUITY IN THE
EMPLOYEES' PRESENT POSITION." 

THREE ACTS OF CONGRESS REQUIRE CONSIDERATION.  THE PLAINTIFFS AND THE
GOVERNMENT SAY THE FAIR LABOR STANDARDS ACT IS CONTROLLING.  THE
DEFENDANT, THE DEPARTMENT OF THE ARMY, WHICH HANDLED THE TRANSACTION,
AND THE DISTRICT COURT CONSIDER THAT THE ACT OF JULY 2, 1940, CONTROLS
THE LIABILITY.  BUT THE TRIAL COURT HELD IT CANNOT BE THE BASIS OF
ADJUDICATION OF PLAINTIFFS' CLAIMS BECAUSE NO SUCH ISSUE WAS PLEADED
AND THAT HOLDING HAS BECOME THE LAW OF THE CASE SINCE THERE HAS BEEN NO
APPEAL.  THE PLAINTIFFS PLEADED THEIR CAUSE OF ACTION ALSO UNDER THE
WALSH-HEALEY PUBLIC CONTRACTS ACT,  FN6  BUT IT WAS HELD UNAVAILABLE TO
THEM BELOW AND THEIR PETITION FOR CERTIORARI TO THIS COURT RAISES NO
QUESTION AS TO THAT ACT AND ACQUIESCES IN DROPPING IT FROM OUR
CONSIDERATION. 

ON THE QUESTION AS TO WHO WAS THE EMPLOYER, ON WHICH THIS CASE WAS
DECIDED BELOW, THE COMPLAINT MAKES A CLEAR, FACTUAL AND SIMPLE
ALLEGATION.  IT SAYS THAT THESE PLAINTIFFS WERE EMPLOYED BY THE
CORPORATE DEFENDANT ITSELF.  THIS ALLEGATION HAS BEEN OVERBORNE BY
INTERPRETING THE TERMS OF THE CONTRACTS BETWEEN THAT ALLEGED EMPLOYER
AND A THIRD PARTY, THAT IS, THE GOVERNMENT, WHICH TERMS MAY OR MAY NOT
HAVE BEEN KNOWN TO THE EMPLOYEES.  THERE IS SUBSTANTIAL CONTROVERSY AS
TO THE WAY THOSE TWO PARTIES, THE GOVERNMENT AND DEFENDANT IN ACTUAL
PRACTICE, CONSTRUED THEIR CONTRACTS, BOTH SIDES OF THE CONTROVERSY
BEING BASED ON EVENTS OF WHICH WE ARE ASKED TO TAKE JUDICIAL NOTICE OR
TO SPELL OUT FROM CONTRACTS WITHOUT THE TESTS WHICH TRIAL AFFORDS.  THE
PLAINTIFFS IN TURN SEEK TO COUNTERACT WHATEVER INFERENCES MAY BE DRAWN
FROM THE DEFENDANT'S VERSION OF DEALINGS BETWEEN DEFENDANT AND THE
GOVERNMENT BY CONTRARY INFERENCES FROM DEALINGS BETWEEN EMPLOYEES AND
THE DEFENDANT.  BUT THEY DO NOT PROVE PLAINTIFFS' OWN DEALINGS, WHICH
ARE NOT IN THE RECORD, BUT OFFER AFFIDAVITS WHICH RELATE SPECIFICALLY
TO "LABORERS AND MECHANICS" WHILE PLAINTIFFS WERE INSPECTORS AND
FOREMEN, A DIFFERENCE THAT MAY BE MATERIAL.  INSOFAR AS THE ALLEGATIONS
OF THE COMPLAINT ARE IMPEACHED BY THE COURSE OF DEALING BETWEEN
DEFENDANT AND THE GOVERNMENT, THEY ARE NOT SUPPORTED BY ANY COURSE OF
DEALING TO WHICH THESE PLAINTIFFS WERE PARTIES.  WHAT THEY WERE PAID
AND ON WHAT BASIS, WHETHER THEY HAVE ALREADY BEEN PAID FOR OVERTIME ON
THE THEORY THAT ONE OF THE OTHER ACTS APPLIES, WE DO NOT KNOW. 

DEFENDANT'S PRESENT POSITION, WHICH, FOR ALL WE KNOW, MAY OR MAY NOT
BE SHARED BY THE DEPARTMENT OF THE ARMY, IS THAT WE DO NOT NEED TO
SETTLE THE QUESTION AS TO WHETHER DEFENDANT OR THE GOVERNMENT WAS THE
ACTUAL EMPLOYER, THAT THE EFFECT OF THE WAR-TIME LEGISLATION WAS TO SET
UP A WHOLLY NEW SYSTEM OF WAR PRODUCTION, WHICH WAS NEITHER PRIVATE
ENTERPRISE NOR GOVERNMENT OPERATION, BUT AN AMALGAMATION OF THE TWO,
WHICH ALSO PRESCRIBED A COMPLETE SYSTEM OF LABOR RELATION BY STATUTE
WHICH SUPERSEDES AND PRECLUDES OPERATION OF THE FAIR LABOR STANDARDS
ACT.  BUT THIS BROAD CONTENTION SEEMS NOT TO HAVE BEEN SUBMITTED TO
EITHER COURT BELOW, IS NOT CONSISTENT WITH THE THEORETICAL BASIS OF
THEIR DECISIONS AND APPEARS FULLY PRESENTED FOR THE FIRST TIME IN THE
REPLY BRIEF IN THIS COURT. 

THE SHORT OF THE MATTER IS THAT WE HAVE AN EXTREMELY IMPORTANT
QUESTION, PROBABLY AFFECTING ALL COST-PLUS-FIXED-FEE WAR CONTRACTORS
AND MANY OF THEIR EMPLOYEES IMMEDIATELY, AND ULTIMATELY AFFECTING BY A
VAST SUM THE COST OF FIGHTING THE WAR.  NO CONCLUSION IN SUCH A CASE
SHOULD PRUDENTLY BE RESTED ON AN INDEFINITE FACTUAL FOUNDATION.  THE
CASE, WHICH COUNSEL HAVE DESCRIBED AS A CONSTANTLY EXPANDING ONE, COMES
TO US ALMOST IN THE STATUS IN WHICH IT SHOULD COME TO A TRIAL COURT. 
IN ADDITION TO THE WELTER OF NEW CONTENTIONS AND STATUTORY PROVISIONS
WE MUST PICK OUR WAY AMONG OVER A SCORE OF TECHNICAL CONTRACTS, EACH
AMENDING SOME EARLIER ONE, WITHOUT FULL BACKGROUND KNOWLEDGE OF THE
DEALINGS OF THE PARTIES.  THE HEARING OF CONTENTIONS AS TO DISPUTED
FACTS, THE SORTING OF DOCUMENTS TO SELECT RELEVANT PROVISIONS,
ASCERTAIN THEIR ULTIMATE FORM AND MEANING IN THE CASE, THE PRACTICAL
CONSTRUCTION PUT ON THEM BY THE PARTIES AND REDUCTION OF THE MASS OF
CONFLICTING CONTENTIONS AS TO FACT AND INFERENCE FROM FACTS, IS A TASK
PRIMARILY FOR A COURT OF ONE JUDGE, NOT FOR A COURT OF NINE. 

WE DO NOT HOLD THAT IN THE FORM THE CONTROVERSY TOOK IN THE DISTRICT
COURT THAT TRIBUNAL LACKED POWER OR JUSTIFICATION FOR APPLYING THE
SUMMARY JUDGMENT PROCEDURE.  BUT SUMMARY PROCEDURES, HOWEVER SALUTARY
WHERE ISSUES ARE CLEAR-CUT AND SIMPLE,  FN7  PRESENT A TREACHEROUS
RECORD FOR DECIDING ISSUES OF FAR-FLUNG IMPORT, ON WHICH THIS COURT
SHOULD DRAW INFERENCES WITH CAUTION FROM COMPLICATED COURSES OF
LEGISLATION, CONTRACTING AND PRACTICE. 

WE CONSIDER IT THE PART OF GOOD JUDICIAL ADMINISTRATION TO WITHHOLD
DECISION OF THE ULTIMATE QUESTIONS INVOLVED IN THIS CASE UNTIL THIS OR
ANOTHER RECORD SHALL PRESENT A MORE SOLID BASIS OF FINDINGS BASED ON
LITIGATION OR ON A COMPREHENSIVE STATEMENT OF AGREED FACTS.  WHILE WE
MIGHT BE ABLE, ON THE PRESENT RECORD, TO REACH A CONCLUSION THAT WOULD
DECIDE THE CASE, IT MIGHT WELL BE FOUND LATER TO BE LACKING IN THE
THOROUGHNESS THAT SHOULD PRECEDE JUDGMENT OF THIS IMPORTANCE AND WHICH
IT IS THE PURPOSE OF THE JUDICIAL PROCESS TO PROVIDE. 

WITHOUT INTIMATING ANY CONCLUSION ON THE MERITS, WE VACATE THE
JUDGMENTS BELOW AND REMAND THE CASE TO THE DISTRICT COURT FOR
RECONSIDERATION AND AMPLIFICATION OF THE RECORD IN THE LIGHT OF THIS
OPINION AND OF PRESENT CONTENTIONS.  JUDGMENTS VACATED. 

FN1  ACT OF JUNE 25, 1938, C. 676, 52 STAT. 1060, 29 U.S.C. SEC.
201. 

FN2 THE ACT DEFINES COMMERCE AS FOLLOWS:  "'COMMERCE' MEANS TRADE,
COMMERCE, TRANSPORTATION, TRANSMISSION, OR COMMUNICATION AMONG THE
SEVERAL STATES OR FROM ANY STATE TO ANY PLACE OUTSIDE THEREOF." 

FN3  THE ACT DEFINES GOODS AS FOLLOWS:  "'GOODS' MEANS GOODS
(INCLUDING SHIPS AND MARINE EQUIPMENT), WARES, PRODUCTS, COMMODITIES,
MERCHANDISE, OR ARTICLES OR SUBJECTS OF COMMERCE OF ANY CHARACTER, OR
ANY PART OR INGREDIENT THEREOF, BUT DOES NOT INCLUDE GOODS AFTER THEIR
DELIVERY INTO THE ACTUAL PHYSICAL POSSESSION OF THE ULTIMATE CONSUMER
THEREOF OTHER THAN A PRODUCER, MANUFACTURER, OR PROCESSOR THEREOF." 

FN4  RULE 56 PROVIDES THAT THE TRIAL COURT MAY AWARD SUMMARY JUDGMENT
AFTER MOTION, NOTICE AND HEARING, PROVIDED THE PLEADINGS, DEPOSITIONS,
ADMISSIONS AND AFFIDAVITS ON FILE SHOW THAT THERE IS NO GENUINE ISSUE
AS TO ANY MATERIAL FACT AND THAT THE MOVING PARTY IS ENTITLED TO
JUDGMENT AS A MATTER OF LAW. 

FN5  ACT OF JULY 2, 1940, C. 508, 54 STAT. 712. 

FN6  ACT OF JUNE 30, 1936, C. 881, 49 STAT. 2036, 41 U.S.C. SEC. 35. 

FN7  RULE 56 REQUIRES THAT SUMMARY JUDGMENT SHALL BE RENDERED IF
"THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT  ...  "  SEE NOTE
4. 

MR. JUSTICE BLACK THINKS THE JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 
..END :








WOODS V. HILLS, 334 U.S. 210 


NO. 437.  ARGUED JANUARY 14, 1948.  - DECIDED MAY 10, 1948. 


UNDER SEC. 205 OF THE EMERGENCY PRICE CONTROL ACT, THE ADMINISTRATOR
BROUGHT AN ACTION BASED ON AN ALLEGED OVERCHARGE OF RENT.  THE ISSUE,
BY STIPULATION OF THE PARTIES, WAS THE VALIDITY OF THE SECOND OF TWO
ORDERS OF THE RENT DIRECTOR REDUCING MAXIMUM RENTS ON PROPERTY OF THE
DEFENDANT.  THE DISTRICT COURT ENTERED JUDGMENT FOR THE DEFENDANT IN
1946.  AN APPEAL BY THE ADMINISTRATOR WAS NOT SUBMITTED IN THE CIRCUIT
COURT OF APPEALS UNTIL SEPTEMBER 10, 1947, AND THE EMERGENCY PRICE
CONTROL ACT EXPIRED BY ITS TERMS ON JUNE 30, 1947.  HELD: 

1.  SECTION 204(D) OF THE EMERGENCY PRICE CONTROL ACT PRECLUDED THE
DISTRICT COURT IN 1946 FROM DETERMINING THE VALIDITY OF THE INDIVIDUAL
RENT ORDER, EVEN THOUGH THE DEFENSE TO THE ACTION BROUGHT THERE WAS
BASED ON THE ALLEGED INVALIDITY OF THE ORDER, SINCE EXCLUSIVE
JURISDICTION TO PASS ON THE VALIDITY OF A REGULATION OR AN ORDER ISSUED
BY THE ADMINISTRATOR WAS VESTED IN THE EMERGENCY COURT OF APPEALS AND
IN THIS COURT UPON REVIEW OF JUDGMENTS AND ORDERS OF THE EMERGENCY
COURT.  PP. 211-214. 

2.  ON REMAND, THE DISTRICT COURT WILL NOT HAVE JURISDICTION TO
DETERMINE THE VALIDITY OF THE SECOND RENT ORDER AND SHOULD NOT BE
DIRECTED BY THE CIRCUIT COURT OF APPEALS TO PASS ON THE VALIDITY OF THE
ORDER.  PP. 211-212, 218. 

3.  SINCE RESPONSIBILITY FOR FUNCTIONS WITH RESPECT TO RENT CONTROL
WAS TRANSFERRED BY EXECUTIVE ORDER 9841 TO THE HOUSING EXPEDITER RATHER
THAN TO THE DEPARTMENT OF COMMERCE, THE NECESSARY EFFECT OF THE
AMENDMENT OF SEC. 204(E) OF THE EMERGENCY PRICE CONTROL ACT BY THE
SUPPLEMENTAL APPROPRIATION ACT OF JULY 30, 1947, WAS TO ABROGATE THE
STATUTORY RIGHT THE DEFENDANT IN THE PRESENT CASE PREVIOUSLY HAD TO
APPLY TO THE DISTRICT COURT FOR LEAVE TO FILE A COMPLAINT IN THE
EMERGENCY COURT OF APPEALS, WHEREFORE THE LATTER COURT NO LONGER HAS
JURISDICTION PURSUANT TO SEC. 204(E) OVER ANY COMPLAINT WHICH DEFENDANT
MAY DESIRE TO FILE WITH IT TO CONTEST THE VALIDITY OF THE SECOND RENT
ORDER.  PP. 215-216. 

4.  UNDER SEC. 1(B) OF THE EMERGENCY PRICE CONTROL ACT, THE EMERGENCY
COURT OF APPEALS STILL HAS JURISDICTION TO REVIEW RENT ORDERS ISSUED
UNDER THE PRICE CONTROL ACT, THROUGH THE PROTEST AND COMPLAINT
PROCEDURE PRESCRIBED BY SECS. 203(A) AND 204(A) AS AMENDED, ALTHOUGH A
1947 AMENDMENT EXPRESSLY RECOGNIZES THE RIGHT OF THE UNITED STATES OR
ANY OFFICER THEREOF TO DISMISS ANY PROTEST UNDER SEC. 203 ON THE GROUND
OF LACHES.  PP. 216-218. 

WOODS, HOUSING EXPEDITER, V. HILLS. 

ON CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

UPON AN APPEAL FROM A JUDGMENT OF THE DISTRICT COURT FOR THE
DEFENDANT IN AN ACTION BY THE TEMPORARY CONTROLS ADMINISTRATOR
(SUCCEEDED BY THE HOUSING EXPEDITER) UNDER SEC. 205 OF THE EMERGENCY
PRICE CONTROL ACT BASED ON AN ALLEGED OVERCHARGE OF RENT, THE CIRCUIT
COURT OF APPEALS CERTIFIED QUESTIONS TO THIS COURT WHICH ARE HERE
ANSWERED, PP. 212-213, 218. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE, THE COURT OF APPEALS FOR THE TENTH CIRCUIT HAS
CERTIFIED QUESTIONS OF LAW CONCERNING WHICH IT ASKS INSTRUCTIONS FOR
THE PROPER DECISION OF THE CAUSE PENDING IN THAT COURT.  JUDICIAL CODE,
SEC. 239; 28 U.S.C. SEC. 346. 

THE CERTIFICATE STATES THAT THIS IS AN ACTION BROUGHT BY THE
ADMINISTRATOR FOR TREBLE DAMAGES AND FOR AN INJUNCTION UNDER SEC. 205
OF THE EMERGENCY PRICE CONTROL ACT  FN1  AND UNDER THE RENT REGULATION
FOR HOUSING.  FN2  HILLS, THE DEFENDANT BELOW, REMODELED APARTMENTS
LOCATED IN A DEFENSE RENTAL AREA, SUBJECT TO THE RENT REGULATIONS, AND
DULY REGISTERED THEM.  THEREAFTER, ON DECEMBER 17, 1943, THE MAXIMUM
RENTS WERE REDUCED BY THE AREA RENT DIRECTOR PURSUANT TO SEC. 5(C) OF
THE REGULATION; AND ON MARCH 7, 1945, THE RENT DIRECTOR ISSUED AN ORDER
FURTHER REDUCING THE MAXIMUM RENTS. 

ON TRIAL IN THE DISTRICT COURT WITHOUT A JURY, THE PARTIES STIPULATED
THAT THE ONLY ISSUE WAS THE VALIDITY OF THE SECOND ORDER.  THE DISTRICT
COURT ENTERED JUDGMENT FOR THE DEFENDANT ON OCTOBER 29, 1946, HOLDING
THAT THE BURDEN WAS ON THE ADMINISTRATOR TO ESTABLISH THE VALIDITY OF
THE SECOND ORDER AND THAT HE HAD FAILED TO INTRODUCE PROOF ESTABLISHING
ITS VALIDITY. 

AT THE TIME THE DISTRICT COURT ENTERED ITS JUDGMENT, EXCLUSIVE
JURISDICTION TO PASS ON THE VALIDITY OF A REGULATION OR ORDER ISSUED BY
THE ADMINISTRATOR WAS VESTED IN THE EMERGENCY COURT OF APPEALS AND IN
THIS COURT UPON REVIEW OF JUDGMENTS AND ORDERS OF THE EMERGENCY COURT. 
SEC. 204(D), 50 U.S.C.A. APP. SEC. 924(D).  HOWEVER, THE APPEAL BY THE
ADMINISTRATOR FROM THE JUDGMENT OF THE DISTRICT COURT WAS NOT SUBMITTED
IN THE CIRCUIT COURT OF APPEALS UNTIL SEPTEMBER 10, 1947, AND THE
EMERGENCY PRICE CONTROL ACT EXPIRED BY ITS TERMS ON JUNE 30, 1947. 
SEC. 1(B), 50 U.S.C.A. APP. SEC. 901(B). 

THE QUESTIONS CERTIFIED ARE AS FOLLOWS: 

"(1)  ON REMAND, WILL THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT OF KANSAS, FIRST DIVISION, HAVE JURISDICTION TO DETERMINE THE
VALIDITY OF THE SECOND RENT ORDER AND SHOULD WE DIRECT THE DISTRICT
COURT TO PASS ON THE VALIDITY OF SUCH RENT ORDER? 

"(2)  IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE, DOES THE
EMERGENCY COURT OF APPEALS STILL HAVE JURISDICTION TO DETERMINE THE
VALIDITY OF THE SECOND RENT ORDER? 

"(3)  IF THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE, AND THIS
COURT REMANDS THE CAUSE WITH DIRECTIONS TO ENTER JUDGMENT AS PRAYED FOR
AGAINST HILLS, MAY HILLS, UNDER SEC. 204(E) OF THE EMERGENCY PRICE
CONTROL ACT OF 1942, AS AMENDED (50 U.S.C.A. APP., SEC. 924(E)), APPLY
TO THE DISTRICT COURT FOR LEAVE TO FILE IN THE EMERGENCY COURT OF
APPEALS A COMPLAINT AGAINST THE ADMINISTRATOR, SETTING FORTH OBJECTIONS
TO THE VALIDITY OF THE SECOND RENT ORDER, AND, UPON PROPER PETITION AND
SHOWING, OBTAIN THE RELIEF PROVIDED FOR IN SEC. 204(E), AND SHOULD WE
SO DIRECT ON REMAND?" 

THERE CAN BE NO DOUBT THAT THE EXCLUSIVE JURISDICTION CONFERRED ON
THE EMERGENCY COURT OF APPEALS BY SEC. 204(D)  FN3 PRECLUDED THE
DISTRICT COURT IN 1946 FROM DETERMINING THE VALIDITY OF THE INDIVIDUAL
RENT ORDER EVEN THOUGH THE DEFENSE TO THE ACTION BROUGHT THERE WAS
BASED ON THE ALLEGED INVALIDITY OF THE ORDER.  FN4 

THE EMERGENCY PRICE CONTROL ACT WAS TO TERMINATE ON JUNE 30, 1947. 
OFFENSES COMMITTED, OR RIGHTS OR LIABILITIES INCURRED, PRIOR TO SUCH
TERMINATION DATE, THE PROVISIONS OF THIS ACT AND SUCH REGULATIONS,
ORDERS, PRICE SCHEDULES, AND REQUIREMENTS SHALL BE TREATED AS STILL
REMAINING IN FORCE FOR THE PURPOSE OF SUSTAINING ANY PROPER SUIT,
ACTION, OR PROSECUTION WITH RESPECT TO ANY SUCH RIGHT, LIABILITY, OR
OFFENSE."  56 STAT. 24.  SINCE THE OFFENSE COMPLAINED OF IN THE CASE AT
BAR OCCURRED BEFORE THE TERMINATION DATE, SEC. 1(B) WOULD APPLY AND THE
EMERGENCY COURT OF APPEALS WOULD STILL HAVE EXCLUSIVE JURISDICTION TO
PASS ON THE VALIDITY OF THE SECOND RENT ORDER, IF ADDITIONAL
PREREQUISITES SET FORTH IN SEC. 204(E)(1) OF THE STATUTE WERE
SATISFIED.  FN5 

JURISDICTION OF THE EMERGENCY COURT OF APPEALS OVER ANY COMPLAINT
ARISES, PURSUANT TO SEC. 204(E)(1), WHEN THE COURT IN WHICH A CIVIL OR
CRIMINAL ENFORCEMENT PROCEEDING IS PENDING HAS GRANTED THE DEFENDANT
LEAVE TO FILE IN THE EMERGENCY COURT OF APPEALS A COMPLAINT SETTING
FORTH OBJECTIONS TO THE VALIDITY OF ANY PROVISION WHICH THE DEFENDANT
IS ALLEGED TO HAVE VIOLATED, AND THE DEFENDANT HAS DULY FILED SUCH A
COMPLAINT.  PRIOR TO A 1947 AMENDMENT, SEC. 204(E)(1) PROVIDED THAT
"WITHIN THIRTY DAYS AFTER ARRAIGNMENT, OR SUCH ADDITIONAL TIME AS THE
COURT MAY ALLOW FOR GOOD CAUSE SHOWN, IN ANY CRIMINAL PROCEEDING, AND
WITHIN FIVE DAYS AFTER JUDGMENT IN ANY CIVIL OR CRIMINAL PROCEEDING,
BROUGHT PURSUANT TO SECTION 205 OF THIS ACT OR SECTION 37 OF THE
CRIMINAL CODE, INVOLVING ALLEGED VIOLATION OF ANY PROVISION OF ANY
REGULATION OR ORDER ISSUED UNDER SECTION 2 OR OF ANY PRICE SCHEDULE
EFFECTIVE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 206, THE
DEFENDANT MAY APPLY TO THE COURT IN WHICH THE PROCEEDING IS PENDING FOR
LEAVE TO FILE IN THE EMERGENCY COURT OF APPEALS A COMPLAINT AGAINST THE
ADMINISTRATOR SETTING FORTH OBJECTIONS TO THE VALIDITY OF ANY PROVISION
WHICH THE DEFENDANT IS ALLEGED TO HAVE VIOLATED OR CONSPIRED TO
VIOLATE.  THE COURT IN WHICH THE PROCEEDING IS PENDING SHALL GRANT SUCH
LEAVE WITH RESPECT TO ANY OBJECTION WHICH IT FINDS IS MADE IN GOOD
FAITH AND WITH RESPECT TO WHICH IT FINDS THERE IS REASONABLE AND
SUBSTANTIAL EXCUSE FOR THE DEFENDANT'S FAILURE TO PRESENT SUCH
OBJECTION IN A PROTEST FILED IN ACCORDANCE WITH SECTION 203(A).  FN6
UPON THE FILING OF A COMPLAINT PURSUANT TO AND WITHIN THIRTY DAYS FROM
THE GRANTING OF SUCH LEAVE, THE EMERGENCY COURT OF APPEALS SHALL HAVE
JURISDICTION TO ENJOIN OR SET ASIDE IN WHOLE OR IN PART THE PROVISION
OF THE REGULATION, ORDER, OR PRICE SCHEDULE COMPLAINED OF OR TO DISMISS
THE COMPLAINT.  ...  "  59 STAT. 308. 

HOWEVER, THE SUPPLEMENTAL APPROPRIATION ACT, 1948, APPROVED JULY 30,
1947, AMENDED SEC. 204(E) BY STRIKING OUT THE FIRST SENTENCE OF THE
FOREGOING PROVISION AND SUBSTITUTING THE FOLLOWING: "WITHIN SIXTY DAYS
AFTER THE DATE OF ENACTMENT OF THIS AMENDMENT, OR WITHIN SIXTY DAYS
AFTER ARRAIGNMENT IN ANY CRIMINAL PROCEEDINGS AND WITHIN SIXTY DAYS
AFTER COMMENCEMENT OF ANY CIVIL PROCEEDINGS BROUGHT PURSUANT TO SECTION
205 OF THIS ACT OR SECTION 37 OF THE CRIMINAL CODE, INVOLVING ALLEGED
VIOLATION OF ANY PROVISION OF ANY REGULATION OR ORDER ISSUED UNDER
ACCORDANCE WITH THE PROVISIONS OF SECTION 206 WITH RESPECT TO WHICH
RESPONSIBILITY WAS TRANSFERRED TO THE DEPARTMENT OF COMMERCE BY
EXECUTIVE ORDER 9841,  FN7  THE DEFENDANT MAY APPLY TO THE COURT IN
WHICH THE PROCEEDING IS PENDING FOR LEAVE TO FILE IN THE EMERGENCY
COURT OF APPEALS A COMPLAINT AGAINST THE ADMINISTRATOR SETTING FORTH
OBJECTIONS TO THE VALIDITY OF ANY PROVISION WHICH THE DEFENDANT IS
ALLEGED TO HAVE VIOLATED OR CONSPIRED TO VIOLATE."  61 STAT. 619. 

SINCE RESPONSIBILITY FOR FUNCTIONS WITH RESPECT TO RENT CONTROL WAS
TRANSFERRED BY EXECUTIVE ORDER 9841 TO THE HOUSING EXPEDITER RATHER
THAN TO THE DEPARTMENT OF COMMERCE, THE NECESSARY EFFECT OF THE
FOREGOING AMENDMENT IS TO ELIMINATE ENTIRELY THE STATUTORY RIGHT THE
DEFENDANT IN THE PRESENT CASE PREVIOUSLY HAD TO APPLY TO THE DISTRICT
COURT FOR LEAVE TO FILE A COMPLAINT IN THE EMERGENCY COURT OF APPEALS. 
AS A COROLLARY, THE LATTER COURT CAN NO LONGER ACQUIRE JURISDICTION
PURSUANT TO SEC. 204(E) OVER ANY COMPLAINT WHICH DEFENDANT MAY DESIRE
TO FILE WITH IT TO CONTEST THE VALIDITY OF THE SECOND RENT ORDER. 

WE MAY NOW CONSIDER WHAT EFFECT THE 1947 AMENDMENT, THUS VIEWED, HAS
UPON THE "EXCLUSIVE JURISDICTION" PROVISION IN SEC. 204(D), WHICH WAS
PRESERVED BY THE SAVING CLAUSE OF SEC. 1(B).  IF ELIMINATION OF THE
COMPLAINT PROCEDURE OF SEC. 204(E) AS A REMEDY FOR THOSE SEEKING TO
CHALLENGE RENT ORDERS MEANT THE ELIMINATION OF ALL PROVISION FOR REVIEW
BY THE EMERGENCY COURT OF APPEALS, IT MIGHT BE ARGUED THAT PRESERVATION
OF THE BAN IMPOSED BY SEC. 204(D) ON DISTRICT COURT ADJUDICATION OF THE
VALIDITY OF RENT ORDERS WOULD BE A DENIAL OF DUE PROCESS TO A DEFENDANT
CHARGED WITH A VIOLATION OF AN ORDER. 

HOWEVER, THE 1947 AMENDMENT LEFT UNIMPAIRED THE PROVISION IN SEC.
203(A) FOR REVIEW OF RENT ORDERS BY FILING PROTESTS WITH THE
ADMINISTRATOR (I.E., THE HOUSING EXPEDITER, AS TRANSFEREE OF THE
ADMINISTRATOR'S RENT CONTROL FUNCTIONS).  A DENIAL OF SUCH A PROTEST
MAY BE REVIEWED IN THE EMERGENCY COURT OF APPEALS BY FILING A COMPLAINT
PURSUANT TO SEC. 204(A).  PRIOR TO AN AMENDMENT ADDED BY THE
STABILIZATION EXTENSION ACT OF 1944, PROTESTS COULD BE FILED UNDER SEC.
203(A) ONLY WITHIN A PERIOD OF SIXTY DAYS AFTER THE ISSUANCE OF THE
REGULATION OR ORDER SOUGHT TO BE CHALLENGED.  UNDER THE 1944 AMENDMENT,
WHICH IS PRESERVED UNCHANGED FOR RENT ORDERS, THIS PERIOD WAS EXTENDED
SO THAT PROTESTS CAN BE FILED "AT ANY TIME AFTER THE ISSUANCE" OF THE
REGULATION OR ORDER, ALTHOUGH THE 1947 AMENDMENT EXPRESSLY TAKES
COGNIZANCE OF THE RIGHT OF THE UNITED STATES OR ANY OFFICER THEREOF TO
DISMISS ANY PROTEST UNDER SEC. 203 ON THE GROUND OF LACHES.  FN8 

THUS, IT APPEARS THAT THE EMERGENCY COURT OF APPEALS MAY STILL BE
ABLE TO ACQUIRE JURISDICTION TO REVIEW RENT ORDERS, ISSUED UNDER THE
PRICE CONTROL ACT, BY MEANS OF THE PROTEST AND COMPLAINT PROCEDURE OF
SECS. 203(A) AND 204(A).  ACCORDINGLY, THE EXCLUSIVE JURISDICTION
PROVISION IN SEC. 204(D) IS NOT A MEANINGLESS ANOMALY SO FAR AS REVIEW
OF RENT CONTROL ORDERS IS CONCERNED, AND IT REMAINS AS SUBSTANTIAL A
BARRIER TO REVIEW OF THE SECOND RENT ORDER BY THE DISTRICT COURT AS IT
WAS HELD TO BE IN YAKUS V. UNITED STATES, 321 U.S. 414(1944).  THERE
THIS COURT RULED THAT DEFENDANTS COULD NOT ATTACK THE VALIDITY OF PRICE
REGULATIONS IN A PROSECUTION IN A DISTRICT COURT EVEN THOUGH THE
EMERGENCY PRICE CONTROL ACT AS THEN DRAWN MADE NO PROVISION FOR REVIEW
BY THE COMPLAINT PROCEDURE LATER SET UP UNDER SEC. 204(E)(AND NOW
ABANDONED SO FAR AS RENT ORDERS ARE CONCERNED).  THE ONLY JUDICIAL
REVIEW THEN AVAILABLE REQUIRED AS A PRELIMINARY THE FILING OF A PROTEST
TO THE ADMINISTRATOR UNDER SEC. 203(A) WITHIN SIXTY DAYS AFTER THE
PROMULGATION OF THE ORDER OR REGULATION.  THAT STATUTORY REVIEW
PROCEDURE, WHOSE CONSTITUTIONALITY WAS UPHELD IN THE YAKUS CASE, IS
STILL PRESERVED TO DEFENDANTS CHARGED WITH VIOLATIONS OF RENT ORDERS
ISSUED UNDER THE EMERGENCY PRICE CONTROL ACT OF 1942.  FN9  IF
ANYTHING, THE JUDICIAL REVIEW STILL AVAILABLE TO SUCH DEFENDANTS IS
EVEN BROADER THAN THE PROCEDURE SUSTAINED IN THE YAKUS CASE, SINCE THE
SIXTY-DAY LIMITATION ON THE FILING OF PROTESTS NO LONGER APPLIES TO
RENT ORDERS. 

IN VIEW OF THE FOREGOING, WE ANSWER QUESTION (1) IN THE NEGATIVE.  IN
ANSWER TO QUESTION (2), THE EMERGENCY COURT OF APPEALS NO LONGER HAS
JURISDICTION PURSUANT TO SEC. 204(E) TO DETERMINE THE VALIDITY OF THE
SECOND RENT ORDER. 

FN1  AS AMENDED, 50 U.S.C.A. APP. SECS. 901, 925. 

FN2  AS AMENDED, 8 FED. REG. 7322. 

FN3  "  ...  THE EMERGENCY COURT OF APPEALS, AND THE SUPREME COURT
UPON REVIEW OF JUDGMENTS AND ORDERS OF THE EMERGENCY COURT OF APPEALS,
SHALL HAVE EXCLUSIVE JURISDICTION TO DETERMINE THE VALIDITY OF ANY
REGULATION OR ORDER ISSUED UNDER SECTION 2, OF ANY PRICE SCHEDULE
EFFECTIVE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 206, AND OF ANY
PROVISION OF ANY SUCH REGULATION, ORDER, OR PRICE SCHEDULE.  EXCEPT AS
PROVIDED IN THIS SECTION, NO COURT, FEDERAL, STATE, OR TERRITORIAL,
SHALL HAVE JURISDICTION OR POWER TO CONSIDER THE VALIDITY OF ANY SUCH
REGULATION, ORDER, OR PRICE SCHEDULE, OR TO STAY, RESTRAIN, ENJOIN, OR
SET ASIDE, IN WHOLE OR IN PART, ANY PROVISIONS OF THIS ACT AUTHORIZING
THE ISSUANCE OF SUCH REGULATIONS OR ORDERS, OR MAKING EFFECTIVE ANY
SUCH PRICE SCHEDULE, OR ANY PROVISION OF ANY SUCH REGULATION, ORDER, OR
PRICE SCHEDULE, OR TO RESTRAIN OR ENJOIN THE ENFORCEMENT OF ANY SUCH
PROVISION."  56 STAT. 33. 

FN4  SEE BOWLES V. WILLINGHAM, 321 U.S. 503, 510-511, 521(1944);
YAKUS V. UNITED STATES, 321 U.S. 414(1944). 

FN5  CF. 150 EAST 47TH STREET CORP. V. PORTER, 156 F.2D 541(E.C.A.,
1946).  MOREOVER, THE TERMS OF A 1947 AMENDMENT, DISCUSSED INFRA, PP.
215-217, CLEARLY SHOW CONGRESSIONAL RECOGNITION THAT THIS EXCLUSIVE
JURISDICTION CONTINUED AFTER THE TERMINATION DATE. 

FN6  SECTION 203(A) PROVIDES INTER ALIA FOR THE FILING OF PROTESTS TO
RENT ORDERS ISSUED BY THE ADMINISTRATOR AT ANY TIME AFTER ISSUANCE. 
THE DENIAL BY THE ADMINISTRATOR OF SUCH A PROTEST IS REVIEWABLE BY A
COMPLAINT FILED IN THE EMERGENCY COURT OF APPEALS PURSUANT TO SEC.
204(A).    FN7  12 FED. REG. 2645. 

FN8  "  ...  NOTHING HEREIN SHALL BE CONSTRUED AS IN ANY WAY
AFFECTING THE RIGHT OF THE UNITED STATES OR ANY OFFICER THEREOF TO
DISMISS ANY PROTEST UNDER SECTION 203 OF THE EMERGENCY PRICE CONTROL
ACT OF 1942, AS AMENDED, OR DEFEND AGAINST ANY COMPLAINT UNDER SECTION
204(E) OF SUCH ACT ON THE GROUND OF LACHES."  61 STAT. 619. 

FN9  OF COURSE THE DISTRICT COURT CAN WITHHOLD JUDGMENT SO THAT IT
MAY GIVE EFFECT TO ANY DETERMINATION BY THE HOUSING EXPEDITER OR THE
EMERGENCY COURT OF APPEALS THAT MIGHT RESULT FROM THE DEFENDANT'S
PURSUIT OF THIS REMEDY. 
..END :






MANDEVILLE FARMS V. SUGAR CO., 334 U.S. 219 


NO. 75.  ARGUED NOVEMBER 19, 1947.  - DECIDED MAY 10, 1948.-  159 F.2D
71, REVERSED. 


GROWERS OF SUGAR BEETS BROUGHT AN ACTION UNDER THE SHERMAN ANTI-TRUST
ACT, AGAINST A DEFENDANT WHO REFINED BEET SUGAR AND DISTRIBUTED IT IN
INTERSTATE COMMERCE, FOR TRIPLE THE AMOUNT OF DAMAGES SUSTAINED BY
REASON OF AN ALLEGED VIOLATION OF THE ACT.  THE AMENDED BILL OF
COMPLAINT ALLEGED, INTER ALIA, THAT THE DEFENDANT HAD CONSPIRED WITH
OTHER REFINERS TO FIX UNIFORM PRICES TO BE PAID TO GROWERS FOR SUGAR
BEETS GROWN IN NORTHERN CALIFORNIA; THAT THE REFINERS HAD A MONOPOLY OF
THE SEED SUPPLY AND THE ONLY PRACTICAL MARKET FOR BEETS GROWN IN THE
AREA; AND THAT, AS A CONSEQUENCE OF THE CONSPIRACY AND THE PRICE-FIXING
FORMULA, THE COMPLAINANTS RECEIVED LESS FOR THEIR BEETS.  OTHER
ALLEGATIONS SHOWED THE UNIQUE CHARACTER OF THE SUGAR BEET INDUSTRY IN
THE AREA; THE DOMINANT POSITION OF THE REFINERS IN THE INDUSTRY; AND
THE EFFECTS OF THE CONSPIRACY ON INTERSTATE COMMERCE.  ON APPEAL FROM A
JUDGMENT DISMISSING THE COMPLAINT, HELD: 

1.  THE AMENDED COMPLAINT STATED A CAUSE OF ACTION UNDER THE ACT. 
PP. 221-246. 

2.  A RESTRAINT OF THE TYPE FORBIDDEN BY THE ACT, THOUGH ARISING IN
INTRASTATE COMMERCE, FALLS WITHIN THE ACT'S PROHIBITION IF ITS ACTUAL
OR THREATENED EFFECT ON INTERSTATE COMMERCE IS SUFFICIENTLY
SUBSTANTIAL.  PP. 227-235. 

3.  THE REFINERS' CONSPIRACY WAS OF THE TYPE FORBIDDEN, EVEN THOUGH
THE PRICE-FIXING WAS BY PURCHASERS AND THOUGH THE CLAIMANTS OF TREBLE
DAMAGES ARE SELLERS INSTEAD OF CUSTOMERS OR CONSUMERS.  P. 235. 

4.  MONOPOLIZATION OF LOCAL BUSINESS, WHEN ACHIEVED BY RESTRAINING
INTERSTATE COMMERCE, IS VIOLATIVE OF THE SHERMAN ACT.  PP. 235-236. 

5.  THE CONSPIRACY BEING SHOWN TO AFFECT INTERSTATE COMMERCE
ADVERSELY TO CONGRESS' POLICY, THE AMOUNT OF THE NATION'S SUGAR
INDUSTRY WHICH THE REFINERS CONTROL IS IRRELEVANT, SO LONG AS CONTROL
IS EXERCISED EFFECTIVELY IN THE AREA INVOLVED.  P. 236. 

6.  MERE CHANGE IN THE FORM OF A COMMODITY OR EVEN COMPLETE CHANGE IN
ESSENTIAL QUALITY BY INTERMEDIATE REFINING OR PROCESSING DOES NOT
DEFEAT APPLICATION OF THE SHERMAN ACT TO PRACTICES OCCURRING EITHER
DURING THOSE PROCESSES OR BEFORE THEY BEGIN, WHEN THEY HAVE THE EFFECTS
FORBIDDEN BY THE ACT.  P. 238. 

7.  THE MERE FACT THAT THE PRICE-FIXING IN THIS CASE RELATED DIRECTLY
TO THE BEETS DID NOT SEVER OR RENDER INSUBSTANTIAL ITS EFFECT
SUBSEQUENTLY IN THE SALE OF SUGAR.  P. 238. 

8.  IN AN INTEGRATED INDUSTRY SUCH AS THIS, STABILIZATION OF PRICES
PAID FOR THE ONLY RAW MATERIAL INEVITABLY TENDS TOWARD REDUCING
COMPETITION IN THE DISTRIBUTION OF THE FINISHED PRODUCT.  P. 241. 

9.  THE INTERDEPENDENCE AND INEXTRICABLE RELATIONSHIP BETWEEN THE
INTERSTATE AND THE INTRASTATE EFFECTS OF THE COMBINATION AND MONOPOLY
ARE INDICATED BY THE PROVISION OF THE UNIFORM PRICE AGREEMENT WHICH
TIES IN THE PRICE PAID FOR BEETS WITH THE PRICE RECEIVED FOR SUGAR. 
PP. 241-242. 

10.  THE MONOPOLISTIC EFFECTS OF THE REFINERS' AGREEMENT TO PAY
UNIFORM PRICES FOR BEETS, IN THE CIRCUMSTANCES OF THIS CASE, NOT ONLY
DEPRIVED THE GROWERS OF ANY COMPETITIVE OPPORTUNITY FOR DISPOSING OF
THEIR CROPS, BUT ALSO TENDED TO INCREASE CONTROL OVER THE QUANTITY OF
SUGAR SOLD INTERSTATE; AND THROUGH THE TIE-IN PROVISION INTERLACED
THOSE INTERSTATE EFFECTS WITH THE PRICE PAID FOR THE BEETS.  P. 242. 

11.  THE FACT THAT SOME GROWERS, THOUGH NOT THE COMPLAINANTS, MAY
HAVE BEEN BENEFITED RATHER THAN HARMED DOES NOT RENDER THE COMBINATION
LEGAL OR IMMUNE TO LIABILITY FOR VIOLATING THE ACT.  PP. 242-243. 

12. BOTH PUBLIC AND PRIVATE INJURY ARE INDICATED IN THIS CASE, FOR IN
ADDITION TO THE RESTRAINTS PUT UPON THE PUBLIC INTEREST IN THE
INTERSTATE SALE OF SUGAR, ENHANCING THE REFINERS' CONTROLS, THERE ARE
SPECIAL INJURIES AFFECTING THE GROWERS.  P. 243. 

13.  THE AMENDMENT OF THE COMPLAINT IN THIS CASE SO AS TO ELIMINATE
THE WORDS "SUGAR AND SUGAR BEETS" FROM ONE OF THE ALLEGATIONS THAT THE
REFINERS HAD CONSPIRED TO "MONOPOLIZE AND RESTRAIN TRADE" WHILE LEAVING
IN MANY OTHER ALLEGATIONS TO THE SAME EFFECT, DID NOT ELIMINATE, NOR
CONSTITUTE A DISAVOWAL, DISCLAIMER OR WAIVER BY THE COMPLAINANTS OF,
THE CHARGE OF RESTRAINT OF TRADE IN SUGAR, THE ONLY INTERSTATE
COMMODITY.  PP. 244-246. 

MANDEVILLE ISLAND FARMS, INC. ET AL. V. AMERICAN CRYSTAL SUGAR CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PETITIONERS' AMENDED COMPLAINT IN AN ACTION AGAINST RESPONDENT TO
RECOVER TRIPLE DAMAGES UNDER THE SHERMAN ACT WAS DISMISSED BY THE
DISTRICT COURT.  64 F.SUPP.  265.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  159 F.2D 71.  THIS COURT GRANTED CERTIORARI.  331 U.S. 800. 
REVERSED AND REMANDED, P. 246. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE ACTION IS FOR TREBLE DAMAGES INCURRED BY VIRTUE OF ALLEGED
VIOLATION OF THE SHERMAN ACT, SECS. 1 AND 2.  26 STAT. 209, 38 STAT.
731, 15 U.S.C. SECS. 1, 2, 7, 15.  THE CASE COMES HERE ON CERTIORARI,
331 U.S. 800, FROM AFFIRMANCE BY THE CIRCUIT COURT OF APPEALS, 159 F.2D
71, OF A JUDGMENT OF THE DISTRICT COURT, 64 F.SUPP.  265.  THAT
JUDGMENT DISMISSED THE AMENDED COMPLAINT AS INSUFFICIENT TO STATE A
CAUSE OF ACTION ARISING UNDER THE ACT.  IN THIS POSTURE OF THE CASE,
THE LEGAL ISSUES ARE TO BE DETERMINED UPON THE ALLEGATIONS OF THE
AMENDED COMPLAINT.  FN1 

THE MAIN QUESTION IS WHETHER, IN THE CIRCUMSTANCES PLEADED,
CALIFORNIA SUGAR REFINERS WHO SELL SUGAR IN INTERSTATE COMMERCE MAY
AGREE AMONG THEMSELVES TO PAY A UNIFORM PRICE FOR SUGAR BEETS GROWN IN
CALIFORNIA WITHOUT INCURRING LIABILITY TO THE LOCAL BEETGROWERS UNDER
THE ACT.  NARROWLY THE QUESTION IS WHETHER THE REFINERS' AGREEMENT
TOGETHER WITH THE ALLEGATIONS MADE CONCERNING ITS EFFECTS SHOWS A
CONSPIRACY TO MONOPOLIZE AND TO RESTRAIN INTERSTATE TRADE AND COMMERCE
OR ONE THUS AFFECTING ONLY PURELY LOCAL TRADE AND COMMERCE. 

THE MATERIAL FACTS PLEADED, WHICH STAND ADMITTED AS IF THEY HAD BEEN
PROVED FOR THE PURPOSES OF THIS PROCEEDING, MAY BE SUMMARIZED AS
FOLLOWS:  PETITIONERS' FARMS ARE LOCATED IN NORTHERN CALIFORNIA, WITHIN
THE AREA LYING NORTH OF THE THIRTY-SIXTH PARALLEL.  THE ONLY PRACTICAL
MARKET AVAILABLE TO BEET GROWERS IN THAT AREA WAS SALE TO ONE OF THREE
REFINERS.  FN2  RESPONDENT WAS ONE OF THESE.  EACH SEASON GROWERS
CONTRACT WITH ONE OF THE REFINERS TO GROW BEETS AND TO SELL THEIR
ENTIRE CROPS TO THE REFINER UNDER STANDARD FORM CONTRACTS DRAWN BY IT.
SINCE PRIOR TO 1939 PETITIONERS HAVE THUS CONTRACTED WITH RESPONDENT. 

THE REFINERS CONTROL THE SUPPLY OF SUGAR BEET SEED.  BOTH BY VIRTUE
OF THIS FACT AND BY THE TERMS OF THE CONTRACTS, THE FARMERS ARE
REQUIRED TO BUY SEED FROM THE REFINER.  THE SEED CAN BE PLANTED ONLY ON
LAND SPECIFICALLY COVERED BY THE CONTRACT.  ANY EXCESS MUST BE RETURNED
TO THE REFINER IN GOOD ORDER AT THE END OF THE PLANTING SEASON. 

THE STANDARD CONTRACT GIVES THE REFINER THE RIGHT TO SUPERVISE THE
PLANTING, CULTIVATION, IRRIGATION AND HARVESTING OF THE BEETS,
INCLUDING THE RIGHT TO ASCERTAIN QUALITY DURING GROWING AND HARVESTING
SEASONS BY SAMPLING AND POLARIZING.  BEFORE DELIVERING BEETS TO THE
COMPANY, THE FARMERS MUST MAKE PRELIMINARY PREPARATIONS FOR PROCESSING
THEM INTO RAW SUGAR.  FN3  THE REFINER HAS THE OPTION TO REJECT BEETS
IF THE CONTRACT CONDITIONS ARE NOT COMPLIED WITH AND IF THE BEETS ARE
NOT SUITABLE IN ITS JUDGMENT FOR THE MANUFACTURE OF SUGAR. 

PRIOR TO 1939 THE CONTRACT FIXED THE GROWER'S PRICE BY A FORMULA
COMBINING TWO VARIABLES, A PERCENTAGE OF THE REFINER'S NET RETURNS PER
HUNDRED POUNDS FROM SALES OF SUGAR AND THE SUGAR CONTENT OF THE
INDIVIDUAL GROWER'S BEETS DETERMINED ACCORDING TO THE REFINER'S TEST. 
FN4 

SOMETIME BEFORE THE 1939 SEASON THE THREE REFINERS ENTERED INTO AN
AGREEMENT TO PAY UNIFORM PRICES FOR SUGAR BEETS.  THE MECHANICS OF THE
PRICE-FIXING ARRANGEMENT WERE SIMPLE.  THE REFINERS ADOPTED IDENTICAL
FORM CONTRACTS AND BEGAN TO COMPUTE BEET PRICES ON THE BASIS OF THE
AVERAGE NET RETURNS OF ALL THREE RATHER THAN THE SEPARATE RETURNS OF
THE PURCHASING REFINER.  INEVITABLY ALL WOULD PAY THE SAME PRICE FOR
BEETS OF THE SAME QUALITY. 

SINCE THE REFINERS CONTROLLED THE SEED SUPPLY AND THE ONLY PRACTICAL
MARKET FOR BEETS GROWN IN NORTHERN CALIFORNIA, WHEN THE NEW CONTRACTS
WERE OFFERED TO THE FARMERS, THEY HAD THE CHOICE OF EITHER SIGNING OR
ABANDONING SUGAR BEET FARMING.  PETITIONERS ACCORDINGLY CONTRACTED WITH
RESPONDENT UNDER THIS PLAN DURING THE 1939, 1940 AND 1941 SEASONS.  THE
PLAN WAS DISCONTINUED AFTER THE 1941 SEASON.  BECAUSE BEET PRICES WERE
DETERMINED FOR THE THREE SEASONS WITH REFERENCE TO THE COMBINED RETURNS
OF THE THREE REFINERS, THE PRICES RECEIVED BY PETITIONERS FOR THOSE
SEASONS WERE LOWER THAN IF RESPONDENT, THE MOST EFFICIENT OF THE THREE,
HAD BASED ITS PRICES ON ITS SEPARATE RETURNS. 

THE FOREGOING ALLEGATIONS SET FORTH THE ESSENTIAL FEATURES OF THE
CONTRACTUAL ARRANGEMENTS BETWEEN THE REFINERS AND THE GROWERS AND OF
THE AGREEMENT AMONG THE REFINERS THEMSELVES.  OTHER ALLEGATIONS WERE
MADE TO COMPLETE THE SHOWING OF VIOLATION AND INJURY.  THEY RELATE
SPECIFICALLY TO THE PECULIARLY INTEGRATED CHARACTER OF THE INDUSTRY,
EFFECTS OF THE ARRANGEMENTS UPON INTERSTATE COMMERCE, AND THE RELATION
BETWEEN THE VIOLATIONS CHARGED AND THE INJURIES SUFFERED BY
PETITIONERS. 

WITH REFERENCE TO THE INDUSTRY IN GENERAL, IT WAS STATED THAT SUGAR
BEETS WERE GROWN DURING THE SEASONS 1938 TO 1942 ON LARGE ACREAGES NOT
ONLY IN NORTHERN CALIFORNIA BUT ALSO IN UTAH, COLORADO, MICHIGAN,
IDAHO, ILLINOIS AND OTHER STATES.  THE CROPS SO GROWN, WHEN HARVESTED,
WERE NOT "SOLD IN CENTRAL MARKETS AS WERE POTATOES, ONIONS, CORN,
GRAIN, FRUIT AND BERRIES, BUT WERE PRODUCED BY GROWERS UNDER CONTRACT
WITH MANUFACTURERS OR PROCESSORS AND IMMEDIATELY UPON BEING HARVESTED
WERE DELIVERED TO THESE MANUFACTURERS AND TAKEN TO THEIR BEET SUGAR
REFINERIES WHERE THE SUGAR BEETS WERE MANUFACTURED BY AN ELABORATE
PROCESS INTO RAW SUGAR BY THE SAID MANUFACTURERS, WHO THEREAFTER SOLD
THE RESULTING SUGAR IN INTERSTATE COMMERCE."  THEN FOLLOW THE
ALLEGATIONS SUMMARIZED ABOVE IN NOTE 2 CONCERNING THE BULKY AND
SEMIPERISHABLE NATURE OF SUGAR BEETS, THE IMPOSSIBILITY OF TRANSPORTING
THEM OVER LONG DISTANCES OR OF STORING THEM CHEAPLY OR SAFELY, THEIR
RAPID DETERIORATION WHEN RIPE, AND THE NECESSITY FOR PROMPT HARVESTING
AND MARKETING.  THESE ALLEGATIONS MUST BE TAKEN AS INTENDED AND
EFFECTIVE TO PUT THE AGREEMENTS COMPLAINED OF IN THE GENERAL SETTING OF
THE INDUSTRY'S UNIQUE STRUCTURE AND SPECIAL MODE OF OPERATION. 

THE SPECIFIC ALLEGATION IS ADDED THAT THE SUGAR MANUFACTURED BY
RESPONDENT AND THE OTHER NORTHERN CALIFORNIA REFINERS FROM BEETS GROWN
IN THE REGION "WAS, DURING ALL OF SAID PERIOD (1938 TO 1942), SOLD IN
INTERSTATE COMMERCE THROUGHOUT THE UNITED STATES." 

BY WAY OF LEGAL AS WELL AS ULTIMATE FACTUAL CONCLUSIONS THE AMENDED
COMPLAINT CHARGED THAT RESPONDENT HAD UNLAWFULLY CONSPIRED WITH THE
OTHER NORTHERN CALIFORNIA REFINERS TO "MONOPOLIZE AND RESTRAIN TRADE
AND COMMERCE  FN5  AMONG THE SEVERAL STATES AND TO UNLAWFULLY FIX
PRICES TO BE PAID THE GROWERS  ...  ALL IN VIOLATION OF THE ANTI-TRUST
LAWS  ...  "; AND THAT EACH REFINER NO LONGER COMPETED AGAINST THE
OTHERS AS TO THE PRICE TO BE PAID THE GROWERS, BUT PAID THE SAME PRICE
ON THE AGREED UNIFORM BASIS OF AVERAGE NET RETURNS. 

THERE WERE FURTHER CHARGES THAT PRIOR TO 1939 THE NORTHERN CALIFORNIA
REFINERS HAD "COMPETED IN INTERSTATE COMMERCE WITH EACH OTHER AS TO THE
PERFORMANCE, ABILITY AND EFFICIENCY OF THEIR MANUFACTURING, SALES AND
EXECUTIVE DEPARTMENTS, AND EACH STROVE TO INCREASE SALES RETURN AND
DECREASE EXPENSES," WITH THE RESULT THAT FOR 1938 RESPONDENT SECURED
SUBSTANTIALLY GREATER "NET GROSS RECEIPTS OF SALES OF SUGAR" THAN THE
OTHER REFINERS.  THESE IN TURN WERE REFLECTED IN THE PAYMENT OF 29 1/2
TO 52 1/2 CENTS PER TON MORE TO PETITIONERS AND OTHER GROWERS DEALING
WITH RESPONDENT THAN WAS PAID BY THE OTHER REFINERS TO THEIR GROWERS. 

HOWEVER, FOR THE SEASONS 1939, 1940 AND 1941, UNDER THE NEW UNIFORM
CONTRACTS AND PRICES, "THERE WAS NO LONGER ANY SUCH COMPETITION  ...  "
INSTEAD IT WAS ALLEGED UPON INFORMATION AND BELIEF THAT, AS A RESULT
OF THE ALLEGED CONSPIRACY, RESPONDENT DID NOT CONDUCT ITS INTERSTATE
OPERATIONS AS CAREFULLY AND EFFICIENTLY AS PREVIOUSLY OR "AS IT WOULD
HAVE HAD SAID CONSPIRACY NOT EXISTED."  IN CONSEQUENCE, RESPONDENT
RECEIVED LESS IN SALES RETURNS FOR RAW SUGAR AND INCURRED GREATER
EXPENSES THAN IF COMPETITION HAD BEEN FREE, AND PETITIONERS "DID NOT
RECEIVE THE REASONABLE VALUE OF THEIR SUGAR BEETS." 

FURTHER CHARGES WERE THAT AS "A DIRECT, EXPECTED AND PLANNED RESULT
OF SAID CONSPIRACY, THE FREE AND NATURAL FLOW OF COMMERCE IN INTERSTATE
TRADE WAS INTENTIONALLY HINDERED AND OBSTRUCTED," SO THAT INSTEAD OF
THE REFINERS "PRODUCING AND SELLING RAW SUGAR IN INTERSTATE COMMERCE
...  IN COMPETITION WITH EACH OTHER  ...  THEY BECAME ILLEGALLY
ASSOCIATED IN A COMMON PLAN WHEREIN THEY POOLED THEIR RECEIPTS AND
EXPENSES AND FRUSTRATED THE FREE ENTERPRISE SYSTEM  ...  "; ALL
INCENTIVE TO EFFICIENCY, ECONOMY AND INDIVIDUAL ENTERPRISE DISAPPEARED;
AND THE REFINERS OPERATED, "IN SO FAR AS THE GROWERS WERE CONCERNED,"
AS IF THEY WERE ONE CORPORATION OWNING AND CONTROLLING ALL FACTORIES IN
THE AREA, BUT WITH THREE COMPLETELY SEPARATED OVERHEADS AND WITH NONE
OF THE EFFICIENCY THAT CONSOLIDATION INTO ONE CORPORATION MIGHT BRING. 
FN6 

WE ARE NOT CONCERNED PRESENTLY WITH THE ALLEGATIONS RELATING TO THE
INJURIES AND AMOUNTS OF DAMAGES INFLICTED UPON PETITIONERS,  FN7 EXCEPT
TO SAY THAT THEY ARE SUFFICIENT TO PRESENT THOSE QUESTIONS FOR SUPPORT
BY PROOF, IF THE ALLEGATIONS MADE TO SHOW A CAUSE OF ACTION ARISING
UNDER THE STATUTE ARE SUFFICIENT FOR THAT PURPOSE. 

IN OUR JUDGMENT THE AMENDED COMPLAINT STATES A CAUSE OF ACTION
ARISING UNDER THE SHERMAN ACT, SECS. 1 AND 2, AND THE COMPLAINT WAS
IMPROPERLY DISMISSED. 

             I. 

BROADLY PETITIONERS REGARD THE ENTIRE SEQUENCE OF GROWING THE BEETS,
REFINING THEM INTO SUGAR AND DISTRIBUTING IT, UNDER THE ARRANGEMENTS
SET FORTH, AS A CHAIN OF EVENTS SO INTEGRATED AND TAKING PLACE IN
INTERSTATE COMMERCE OR IN SUCH CLOSE AND INTIMATE CONNECTION WITH IT
THAT, FOR PURPOSES OF APPLYING THE SHERMAN ACT, THE COMPLETE SEQUENCE
IS AN ENTIRETY AND NO PART OF IT CAN BE SEGREGATED FROM THE REMAINDER
SO AS TO PUT IT BEYOND THE STATUTE'S GRASP. 

RESPONDENT, ON THE CONTRARY, BROADLY SEVERS THE PHASE OR PHASES OF
GROWING AND SELLING BEETS FROM THE LATER ONES OF REFINING THEM AND OF
MARKETING THE SUGAR.  THE INITIAL GROWING PROCESS TOGETHER WITH SALE OF
THE BEETS, AND IT WOULD SEEM ALSO THE INTERMEDIATE STAGE OF REFINING,
ARE TAKEN TO BE "PURELY LOCAL," SINCE ALL OCCURRED ENTIRELY WITHIN
CALIFORNIA; THEREFORE WERE WHOLLY INTRASTATE EVENTS; AND CONSEQUENTLY
WERE BEYOND THE SHERMAN ACT'S REACH. 

CONNECTED WITH THIS SEVERANCE IS THE ASSERTION THAT THE COMPLAINT
ALLEGES NO MONOPOLISTIC OR RESTRICTIVE EFFECTS UPON INTERSTATE
COMMERCE, BUT ONLY SUCH EFFECTS IN THE INTRASTATE PHASES OF THE
INDUSTRY. 

MUCH STRESS IS LAID UPON THE SO-CALLED INTERRUPTION OF THE SEQUENCE
AT THE REFINING STAGE.  PRIOR TO THE INTERRUPTION ONLY BEETS ARE
INVOLVED, AFTERWARD ONLY SUGAR.  SINCE THE TWO COMMODITIES ARE
DIFFERENT AND ALL THAT AFFECTS THE BEETS TAKES PLACE IN CALIFORNIA,
INCLUDING THE RESTRAINTS ALLEGED UPON THEIR SALE, THE TRADE AND
COMMERCE IN BEETS IS WHOLLY DISTINCT FROM THAT IN SUGAR AND IS ENTIRELY
LOCAL, AS ARE THEREFORE THE RESTRAINT AND MONOPOLIZATION OF THAT
TRADE.  ADMITTEDLY ONCE THE BEETS ARE CONVERTED INTO SUGAR AND THE
SUGAR STARTS ON ITS INTERSTATE JOURNEY TO THE TABLES OF THE NATION,
INTERSTATE COMMERCE BECOMES INVOLVED.  BUT ONLY THEN IS IT AFFECTED,
AND NOTHING OCCURRING BEFORE THE JOURNEY BEGINS OR AT ANY RATE BEFORE
THE BEETS BECOME SUGAR SUBSTANTIALLY AFFECTS OR, FOR PURPOSES OF THE
STATUTE'S APPLICATION, HAS RELEVANCE TO THAT COMMERCE. 

THUS SUGAR TOGETHER WITH ITS INTERSTATE SALE AND TRANSPORTATION IS
ABSOLUTELY DIVORCED FROM SUGAR BEETS, THEIR PRODUCTION, SALE AND
DELIVERY TO THE REFINER.  MANUFACTURE BREAKS THE RELATIONSHIP AND WITH
IT ALL CONSEQUENCES GROWING OUT OF THE RESTRAINTS FOR THE INTERSTATE
PROCESSES AND THE PURPOSES OF THE STATUTE.  IN OTHER WORDS, SINCE THE
RESTRAINTS PRECEDE THE INTERSTATE MARKETING OF THE SUGAR AND
IMMEDIATELY AFFECT ONLY THE LOCAL MARKETING OF THE BEETS, THEY HAVE NO
RESTRICTIVE EFFECT UPON THE TRADE AND COMMERCE IN SUGAR. 

THIS VERY NEARLY DENIES THAT SUGAR BEETS CONTAIN SUGAR.  IT CERTAINLY
DENIES THAT THE PRICE OF BEETS AND RESTRICTIONS UPON IT HAVE ANY
SUBSTANTIAL RELATION IN FACT OR IN LEGAL SIGNIFICANCE FOR THE STATUTE'S
PURPOSES TO THE PRICE OF SUGAR SOLD INTERSTATE, WHEN THE RESTRICTIONS
TAKE PLACE WITHIN THE CONFINES OF A SINGLE STATE AND BEFORE THE
INTERSTATE MARKETING PROCESS BEGINS. 

   II. 

THE BROAD FORM OF RESPONDENT'S ARGUMENT CANNOT BE ACCEPTED.  IT IS A
REVERSION TO CONCEPTIONS FORMERLY HELD BUT NO LONGER EFFECTIVE TO
RESTRICT EITHER CONGRESS' POWER, WICKARD V. FILBURN, 317 U.S. 111, OR
THE SCOPE OF THE SHERMAN ACT'S COVERAGE.  THE ARTIFICIAL AND MECHANICAL
SEPARATION OF "PRODUCTION" AND "MANUFACTURING" FROM "COMMERCE," WITHOUT
REGARD TO THEIR ECONOMIC CONTINUITY, THE EFFECTS OF THE FORMER TWO UPON
THE LATTER, AND THE VARYING METHODS BY WHICH THE SEVERAL PROCESSES ARE
ORGANIZED, RELATED AND CARRIED ON IN DIFFERENT INDUSTRIES OR INDEED
WITHIN A SINGLE INDUSTRY, NO LONGER SUFFICES TO PUT EITHER PRODUCTION
OR MANUFACTURING AND REFINING PROCESSES BEYOND REACH OF CONGRESS'
AUTHORITY OR OF THE STATUTE.    IT IS TRUE THAT THE FIRST DECISION
UNDER THE SHERMAN ACT APPLIED THOSE MECHANICAL DISTINCTIONS WITH
SUBSTANTIALLY NULLIFYING EFFECTS FOR COVERAGE BOTH OF THE POWER AND OF
THE ACT.  UNITED STATES V. E.C. KNIGHT CO., 156 U.S. 1.  LIKE THIS ONE,
THAT CASE INVOLVED THE REFINING AND INTERSTATE DISTRIBUTION OF SUGAR. 
BUT BECAUSE THE REFINING WAS DONE WHOLLY WITHIN A SINGLE STATE, THE
CASE WAS HELD TO BE ONE INVOLVING "PRIMARILY" ONLY "PRODUCTION" OR
"MANUFACTURING," ALTHOUGH THE VAST PART OF THE SUGAR PRODUCED WAS SOLD
AND SHIPPED INTERSTATE,  FN8  AND THIS WAS THE MAIN END OF THE
ENTERPRISE.  THE INTERSTATE DISTRIBUTING PHASE, HOWEVER, WAS REGARDED
AS BEING ONLY "INCIDENTALLY," "INDIRECTLY," OR "REMOTELY" INVOLVED; AND
TO BE "INCIDENTAL," "INDIRECT," OR "REMOTE" WAS TO BE, UNDER THE
PREVAILING CLIMATE, BEYOND CONGRESS' POWER TO REGULATE, AND HENCE
OUTSIDE THE SCOPE OF THE SHERMAN ACT.  SEE WICKARD V. FILBURN, SUPRA,
AT 119 ET SEQ. 

THE KNIGHT DECISION MADE THE STATUTE A DEAD LETTER FOR MORE THAN A
DECADE AND, HAD ITS FULL FORCE REMAINED UNMODIFIED, THE ACT TODAY WOULD
BE A WEAK INSTRUMENT, AS WOULD ALSO THE POWER OF CONGRESS, TO REACH
EVILS IN ALL THE VAST OPERATIONS OF OUR GIGANTIC NATIONAL INDUSTRIAL
SYSTEM ANTECEDENT TO INTERSTATE SALE AND TRANSPORTATION OF MANUFACTURED
PRODUCTS.  INDEED, IT AND SUCCEEDING DECISIONS, EMBRACING THE SAME
ARTIFICIALLY DRAWN LINES, PRODUCED A SERIES OF CONSEQUENCES FOR THE
EXERCISE OF NATIONAL POWER OVER INDUSTRY CONDUCTED ON A NATIONAL SCALE
WHICH THE EVOLVING NATURE OF OUR INDUSTRIALISM FOREDOOMED TO REVERSAL. 
FN9 

WE DO NOT STOP TO REVIEW AGAIN IN DETAIL THE FAMILIAR STORY OF THE
PROGRESSION OF DECISION TO THAT END, PERHAPS NOT TOLD ELSEWHERE MORE
SUCCINCTLY OR PERTINENTLY THAN IN WICKARD V. FILBURN, SUPRA.  FN10
SUFFICE IT TO SAY THAT AFTER COMING BACK TO LIFE AGAIN IN THE NORTHERN
SECURITIES CASE, 193 U.S. 197, FOR MATTERS OF TRANSPORTATION, THE
SHERMAN ACT HAD A SECOND REBIRTH IN 1911 WITH THE DECISIONS IN STANDARD
OIL CO. V. UNITED STATES, 221 U.S. 1, AND UNITED STATES V. AMERICAN
TOBACCO CO., 221 U.S. 106.  CF. UNITED STATES V. SOUTH-EASTERN
UNDERWRITERS ASSN., 322 U.S. 533, 553 ET SEQ. 

NOT THEREAFTER COULD IT BE FORETOLD WITH ASSURANCE THAT APPLICATION
OF THE LABELS OF "PRODUCTION" AND "MANUFACTURE," "INCIDENTAL" AND
"INDIRECT," WOULD THROW PROTECTIVE COVERING OVER THOSE PROCESSES
AGAINST THE ACT'S CONSEQUENCES.  VERY SOON ALSO CAME THE SHREVEPORT
RATE CASES, 234 U.S. 342, AGAIN IN THE FIELD OF TRANSPORTATION, BUT
INEVITABLY TO ADD FORCE AND SCOPE TO THE STANDARD OIL AND AMERICAN
TOBACCO RULINGS THAT MANUFACTURING COMPANIES LAY WITHIN THE REACH OF
THE POWER AND OF THE STATUTE, DERIVING NO IMMUNITY FOR THEIR CONDUCT
VIOLATIVE OF THE PROHIBITIONS MERELY FROM THE FACT OF ENGAGING IN THAT
CHARACTER OF ACTIVITY. 

WITH EXTENSION OF THE SHREVEPORT INFLUENCE TO GENERAL APPLICATION,
FN11  IT WAS NECESSARY NO LONGER TO SEARCH FOR SOME SHARP POINT OR LINE
WHERE INTERSTATE COMMERCE ENDS AND INTRASTATE COMMERCE BEGINS, IN ORDER
TO DECIDE WHETHER CONGRESS' COMMANDS WERE EFFECTIVE.  FOR THE ESSENCE
OF THE AFFECTATION DOCTRINE WAS THAT THE EXACT LOCATION OF THIS LINE
MADE NO DIFFERENCE, IF THE FORBIDDEN EFFECTS FLOWED ACROSS IT TO THE
INJURY OF INTERSTATE COMMERCE OR TO THE HINDRANCE OR DEFEAT OF
CONGRESSIONAL POLICY REGARDING IT. 

THE FORMULATION OF THE SHREVEPORT DOCTRINE WAS A GREAT TURNING POINT
IN THE CONSTRUCTION OF THE COMMERCE CLAUSE, COMPARABLE IN THIS RESPECT
TO THE LANDMARK OF COOLEY V. BOARD OF WARDENS, 12 HOW.  299.  FOR,
WHILE THE LATTER GAVE PLAY FOR STATE POWER TO WORK IN THE FIELD OF
COMMERCE, THE FORMER BROKE BONDS CONFINING CONGRESS' POWER AND MADE IT
AN EFFECTIVE INSTRUMENT FOR FULFILLING ITS PURPOSE.  THE SHREVEPORT
DOCTRINE CUT CONGRESS LOOSE FROM THE HALTERING LABELS OF "PRODUCTION"
AND "MANUFACTURING" AND GAVE IT REIN TO REACH THOSE PROCESSES WHEN THEY
WERE USED TO DEFY ITS PURPOSES REGARDING INTERSTATE TRADE AND
COMMERCE.  IN DOING SO THE DECISION SUBSTITUTED JUDGMENT AS TO
PRACTICAL IMPEDING EFFECTS UPON THAT COMMERCE FOR RUBRICS CONCERNING
ITS BOUNDARIES AS THE BASIC CRITERION OF EFFECTIVE CONGRESSIONAL
ACTION. 

THE TRANSITION, HOWEVER, WAS NEITHER SMOOTH NOR IMMEDIATELY COMPLETE,
PARTICULARLY FOR APPLYING THE SHERMAN ACT.  THE OLD IDEAS PERSISTED IN
SPECIFIC APPLICATIONS AS LATE AS THE 1930'S.  BUT AFTER THE HISTORIC
DECISIONS OF 1911, AND EVEN MORE FOLLOWING THE SHREVEPORT DECISION, A
CONSTANTLY GROWING NUMBER OF OTHERS REJECTED THE IDEA THAT PRODUCTION
AND MANUFACTURING ARE "PURELY LOCAL" AND HENCE BEYOND THE ACT'S
COMPASS, SIMPLY BECAUSE THOSE PHASES OF A COMBINATION RESTRAINING OR
MONOPOLIZING TRADE WERE CARRIED ON WITHIN THE CONFINES OF A SINGLE
STATE OR, OF COURSE, OF SEVERAL STATES.  FN12  THE STRUGGLE FOR
SUPREMACY BETWEEN THE CONFLICTING APPROACHES WAS LONG CONTINUED.  BUT
MORE AND MORE UNTIL THE CLIMAX CAME IN THE LATE 1930'S, THIS COURT
REFUSED TO DECIDE THOSE ISSUES OF POWER AND COVERAGE MERELY BY ASKING
WHETHER THE RESTRAINTS OR MONOPOLISTIC PRACTICES, SHOWN TO HAVE THE
FORBIDDEN EFFECTS ON COMMERCE, TOOK PLACE IN A PHASE OR PHASES OF THE
TOTAL ECONOMIC PROCESS WHICH, APART FROM OTHER PHASES AND FROM THE
OUTLAWED EFFECTS, OCCURRED ONLY IN INTRASTATE ACTIVITIES.  FN13 

IN VIEW OF THIS EVOLUTION, THE INQUIRY WHETHER THE RESTRAINT OCCURS
IN ONE PHASE OR ANOTHER, INTERSTATE OR INTRASTATE, OF THE TOTAL
ECONOMIC PROCESS IS NOW MERELY A PRELIMINARY STEP, EXCEPT FOR THOSE
SITUATIONS IN WHICH NO ASPECT OF OR SUBSTANTIAL EFFECT UPON INTERSTATE
COMMERCE CAN BE FOUND IN THE SUM OF THE FACTS PRESENTED.  FN14  FOR,
GIVEN A RESTRAINT OF THE TYPE FORBIDDEN BY THE ACT, THOUGH ARISING IN
THE COURSE OF INTRASTATE OR LOCAL ACTIVITIES, AND A SHOWING OF ACTUAL
OR THREATENED EFFECT UPON INTERSTATE COMMERCE, THE VITAL QUESTION
BECOMES WHETHER THE EFFECT IS SUFFICIENTLY SUBSTANTIAL AND ADVERSE TO
CONGRESS' PARAMOUNT POLICY DECLARED IN THE ACT'S TERMS TO CONSTITUTE A
FORBIDDEN CONSEQUENCE.  IF SO, THE RESTRAINT MUST FALL, AND THE
INJURIES IT INFLICTS UPON OTHERS BECOME REMEDIABLE UNDER THE ACT'S
PRESCRIBED METHODS, INCLUDING THE TREBLE DAMAGE PROVISION. 

THE SHREVEPORT DOCTRINE DID NOT CONTEMPLATE THAT RESTRAINTS OR
BURDENS BECOME OR REMAIN IMMUNE MERELY BECAUSE THEY TAKE PLACE AS
EVENTS PRIOR TO THE POINT IN TIME WHEN INTERSTATE COMMERCE BEGINS. 
EXACTLY THE CONTRARY IS COMPREHENDED, FOR IT IS THE EFFECT UPON THAT
COMMERCE, NOT THE MOMENT WHEN ITS CAUSE ARISES, WHICH THE DOCTRINE WAS
FASHIONED TO REACH. 

OBVIOUSLY THEREFORE THE CRITERIA RESPONDENT WOULD HAVE US FOLLOW
FURNISH NO BASIS FOR REACHING THE RESULT IT SEEKS.  ONLY BY RETURNING
TO THE KNIGHT APPROACH, AND SEVERING THE INTRASTATE EVENTS RELATING TO
THE BEETS, INCLUDING THE PRICE RESTRAINTS, FROM THE LATER EVENTS
RELATING TO THE SUGAR, INCLUDING ITS INTERSTATE SALE, COULD WE CONCLUDE
THERE WERE NO FORBIDDEN RESTRAINTS OR PRACTICES TOUCHING INTERSTATE
COMMERCE HERE.  AT THIS LATE DAY WE ARE NOT WILLING TO TAKE THAT LONG
BACKWARD STEP. 

                                 III. 

WE TURN THEN TO CONSIDER THE QUESTIONS POSED UPON THE AMENDED
COMPLAINT THAT ARE RELEVANT UNDER THE PRESENTLY CONTROLLING CRITERIA. 
THESE ARE WHETHER THE ALLEGATIONS DISCLOSE A RESTRAINT AND MONOPOLISTIC
PRACTICES OF THE TYPES OUTLAWED BY THE SHERMAN ACT; WHETHER, IF SO,
THOSE ACTS ARE SHOWN TO PRODUCE THE FORBIDDEN EFFECTS UPON COMMERCE;
AND WHETHER THE EFFECTS CREATE INJURY FOR WHICH RECOVERY OF TREBLE
DAMAGES BY THE PETITIONERS IS AUTHORIZED. 

IT IS CLEAR THAT THE AGREEMENT IS THE SORT OF COMBINATION CONDEMNED
BY THE ACT,  FN15  EVEN THOUGH THE PRICE-FIXING WAS BY PURCHASERS,
FN16  AND THE PERSONS SPECIALLY INJURED UNDER THE TREBLE DAMAGE CLAIM
ARE SELLERS, NOT CUSTOMERS OR CONSUMERS N17.  AND EVEN IF IT IS ASSUMED
THAT THE FINAL AIM OF THE CONSPIRACY WAS CONTROL OF THE LOCAL SUGAR
BEET MARKET, IT DOES NOT FOLLOW THAT IT IS OUTSIDE THE SCOPE OF THE
SHERMAN ACT.  FOR MONOPOLIZATION OF LOCAL BUSINESS, WHEN ACHIEVED BY
RESTRAINING INTERSTATE COMMERCE, IS CONDEMNED BY THE ACT.  STEVENS CO.
V. FOSTER & KLEISER, 311 U.S. 255, 261.  AND A CONSPIRACY WITH THE
ULTIMATE OBJECT OF FIXING LOCAL RETAIL PRICES IS WITHIN THE ACT, IF THE
MEANS ADOPTED FOR ITS ACCOMPLISHMENT REACH BEYOND THE BOUNDARIES OF ONE
STATE.  UNITED STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293. 

THE STATUTE DOES NOT CONFINE ITS PROTECTION TO CONSUMERS, OR TO
PURCHASERS, OR TO COMPETITORS, OR TO SELLERS.  NOR DOES IT IMMUNIZE THE
OUTLAWED ACTS BECAUSE THEY ARE DONE BY ANY OF THESE.  CF. UNITED STATES
V. SOCONY-VACUUM OIL CO., 310 U.S. 150; AMERICAN TOBACCO CO. V. UNITED
STATES, 328 U.S. 781.  THE ACT IS COMPREHENSIVE IN ITS TERMS AND
COVERAGE, PROTECTING ALL WHO ARE MADE VICTIMS OF THE FORBIDDEN
PRACTICES BY WHOMEVER THEY MAY BE PERPETRATED.  CF. UNITED STATES V.
SOUTH-EASTERN UNDERWRITERS ASSN., SUPRA, AT 553. 

NOR IS THE AMOUNT OF THE NATION'S SUGAR INDUSTRY WHICH THE CALIFORNIA
REFINERS CONTROL RELEVANT, SO LONG AS CONTROL IS EXERCISED EFFECTIVELY
IN THE AREA CONCERNED, INDIANA FARMER'S GUIDE V. PRAIRIE FARMER, 293
U.S. 268, 279, UNITED STATES V. YELLOW CAB CO., 332 U.S. 218, 225, THE
CONSPIRACY BEING SHOWN TO AFFECT INTERSTATE COMMERCE ADVERSELY TO
CONGRESS' POLICY.  CONGRESS' POWER TO KEEP THE INTERSTATE MARKET FREE
OF GOODS PRODUCED UNDER CONDITIONS INIMICAL TO THE GENERAL WELFARE,
UNITED STATES V. DARBY, 312 U.S. 100, 115, MAY BE EXERCISED IN
INDIVIDUAL CASES WITHOUT SHOWING ANY SPECIFIC EFFECT UPON INTERSTATE
COMMERCE, UNITED STATES V. WALSH, 331 U.S. 432, 437-438; IT IS ENOUGH
THAT THE INDIVIDUAL ACTIVITY WHEN MULTIPLIED INTO A GENERAL PRACTICE IS
SUBJECT TO FEDERAL CONTROL, WICKARD V. FILBURN, SUPRA, OR THAT IT
CONTAINS A THREAT TO THE INTERSTATE ECONOMY THAT REQUIRES PREVENTIVE
REGULATION.  CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197, 221
222. 

MOREOVER, AS WE SAID IN THE FRANKFORT DISTILLERIES CASE, " ...  THERE
IS AN OBVIOUS DISTINCTION TO BE DRAWN BETWEEN A COURSE OF CONDUCT
WHOLLY WITHIN A STATE AND CONDUCT WHICH IS AN INSEPARABLE ELEMENT OF A
LARGER PROGRAM DEPENDENT FOR ITS SUCCESS UPON ACTIVITY WHICH AFFECTS
COMMERCE BETWEEN THE STATES."  324 U.S. 293, 297.  THAT STATEMENT IS AS
TRUE OF THE SITUATION NOW PRESENTED AS OF THE ONE THEN BEFORE US,
ALTHOUGH INSTEAD OF RESTRAINING TRADE IN ORDER TO CONTROL A LOCAL
MARKET PETITIONERS CONTROL A LOCAL MARKET IN WHICH THEY PURCHASE.  FOR
THIS IS NOT A CASE INVOLVING ONLY "A COURSE OF CONDUCT WHOLLY WITHIN A
STATE"; IT IS RATHER ONE INVOLVING "CONDUCT WHICH IS AN INSEPARABLE
ELEMENT OF A LARGER PROGRAM DEPENDENT FOR ITS SUCCESS UPON ACTIVITY
WHICH AFFECTS COMMERCE BETWEEN THE STATES," AND IN SUCH A CASE IT IS
NOT MATERIAL THAT THE SOURCE OF THE FORBIDDEN EFFECTS UPON THAT
COMMERCE ARISES IN ONE PHASE OR ANOTHER OF THAT PROGRAM. 

IN VIEW OF ALL THIS, IT IS DIFFICULT TO UNDERSTAND RESPONDENT'S
ARGUMENT THAT THE COMPLAINT DOES NOT ALLEGE THAT THE CONSPIRACY HAD ANY
EFFECT ON INTERSTATE COMMERCE, EXCEPT ON THE BASIS OF THE DISCARDED
CRITERIA DISCUSSED IN PART II ABOVE.  THE CONTENTION IGNORES SPECIFIC
ALLEGATIONS WHICH WE HAVE SET FORTH.  BUT APART FROM THAT FACT IT RESTS
ONLY ON A SINGLE GROUNDING, WHICH IN THE CIRCUMSTANCES OF THIS CASE IS
LITTLE, IF ANY, MORE THAN A DIFFERENT PHRASING OF THE CRITERIA
SUPPLANTED BY THE SHREVEPORT APPROACH. 

THIS IS THAT THE CHANGE UNDERGONE IN THE MANUFACTURING STAGE WHEN THE
BEETS ARE CONVERTED INTO SUGAR MAKES THE CASE DIFFERENT, FOR THE
SHERMAN ACT'S OBJECTS, THAN IT WOULD BE IF THE IDENTICAL COMMODITY WERE
CONCERNED FROM THE PLANTING STAGE THROUGH THE PHASE OF INTERSTATE
DISTRIBUTION, E.G., IF THE COMMODITY WERE WHEAT, AS WAS TRUE IN WICKARD
V. FILBURN, SUPRA, OR RAISINS PURCHASED BY PACKERS FROM GROWERS AND
SHIPPED INTERSTATE AFTER PACKING, CF. PARKER V. BROWN, 317 U.S. 341,
350. 

WE DO NOT STOP TO CONSIDER SPECIFIC AND VARIED SITUATIONS IN WHICH A
CHANGE OF FORM AMOUNTING TO ONE IN THE ESSENTIAL CHARACTER OF THE
COMMODITY TAKES PLACE BY MANUFACTURING OR PROCESSING INTERMEDIATE THE
STAGES OF PRODUCING AND DISPOSING OF THE RAW MATERIAL INTRASTATE AND
LATER INTERSTATE DISTRIBUTION OF THE FINISHED PRODUCT; OR THE EFFECTS,
IF ANY, OF SUCH A CHANGE IN PARTICULAR SITUATIONS UNLIKE THE ONE NOW
PRESENTED.  FN18  FOR MERE CHANGE IN THE FORM OF THE COMMODITY OR EVEN
COMPLETE CHANGE IN ESSENTIAL QUALITY BY INTERMEDIATE REFINING,
PROCESSING OR MANUFACTURING DOES NOT DEFEAT APPLICATION OF THE STATUTE
TO PRACTICES OCCURRING EITHER DURING THOSE PROCESSES OR BEFORE THEY
BEGIN, WHEN THEY HAVE THE EFFECTS FORBIDDEN BY THE ACT.  FN19 AGAIN, AS
WE HAVE SAID, THE VITAL THING IS THE EFFECT ON COMMERCE, NOT THE
PRECISE POINT AT WHICH THE RESTRAINT OCCURS OR BEGINS TO TAKE EFFECT IN
A SCHEME AS CLOSELY KNIT AS THIS IN ALL PHASES OF THE INDUSTRY.  HENCE
IN THIS CASE THE MERE FACT THAT THE PRICE FIXING RELATED DIRECTLY TO
THE BEETS DID NOT SEVER OR RENDER INSUBSTANTIAL ITS EFFECT SUBSEQUENTLY
IN THE SALE OF SUGAR. 

INDEED THAT SEVERANCE WOULD NOT NECESSARILY TAKE PLACE IF THE
MANUFACTURING STAGE HAD PRODUCED A MUCH GREATER CHANGE IN COMMODITIES
THAN WAS EFFECTED HERE.  BUT UNDER THE FACTS CHARACTERIZING THIS
INDUSTRY'S OPERATION AND THE TIGHTENING OF CONTROLS IN THIS PRODUCING
AREA BY THE NEW AGREEMENTS AND UNDERSTANDINGS, THERE CAN BE NO QUESTION
THAT THEIR RESTRICTIVE CONSEQUENCES WERE PROJECTED SUBSTANTIALLY INTO
THE INTERSTATE DISTRIBUTION OF THE SUGAR, AS THE AMENDED COMPLAINT
REPEATEDLY ALLEGES.  INDEED THEY PERMEATED THE ENTIRE STRUCTURE OF THE
INDUSTRY IN ALL ITS PHASES, INTRASTATE AND INTERSTATE.    WE DEAL HERE,
AS PETITIONERS SAY, WITH AN INDUSTRY TIGHTLY INTERWOVEN FROM SALE OF
THE SEED THROUGH ALL THE INTERMEDIATE STAGES TO AND INCLUDING
INTERSTATE SALE AND DISTRIBUTION OF THE SUGAR.  IN THE MIDDLE OF ALL
THESE PROCESSES AND DOMINATING ALL OF THEM STAND THE REFINERS.  THEY
CONTROL THE SUPPLY AND PRICE OF SEED, THE QUANTITY SOLD AND THE VOLUME
OF LAND PLANTED, THE PROCESSES OF CULTIVATION AND HARVESTING, THE
QUANTITY OF BEETS PURCHASED AND REJECTED, THE REFINING, AND THE
DISTRIBUTION OF SUGAR BOTH INTERSTATE AND LOCAL. 

SOME OF THESE CONTROLS HAVE BEEN BUILT UP BY TAKING ADVANTAGE OF THE
OPPORTUNITIES AFFORDED BY THE INDUSTRY'S UNIQUE CHARACTER, BOTH NATURAL
AND IN ITS GENERAL PATTERN AND HABITS OF ORGANIZATION; FN20  OTHERS BY
UTILIZING THE KEY POSITIONS THESE ADVANTAGES GIVE THE REFINERS TO PUT
CONTRACTUAL RESTRAINTS UPON THE GROWERS BY THEIR SEPARATE ACTIONS; FN21
AND STILL GREATER ONES BY THE REFINERS' ABILITY, BY VIRTUE OF THEIR
CENTRAL AND DOMINATING PLACE THUS ACHIEVED, TO AGREE AMONG THEMSELVES
UPON FURTHER RESTRICTIONS. 

EVEN WITHOUT THE UNIFORM PRICE PROVISION AND WITH FULL COMPETITION
AMONG THE THREE REFINERS, THEIR POSITION IS A DOMINATING ONE.  THE
GROWERS' ONLY COMPETITIVE OUTLET IS THE ONE WHICH EXISTS WHEN THE
REFINERS COMPETE AMONG THEMSELVES.  THERE IS NO OTHER MARKET.  THE
FARMERS' ONLY ALTERNATIVE TO DEALING WITH ONE OF THE THREE REFINERS IS
TO STOP GROWING BEETS.  THEY CAN NEITHER PLANT NOR SELL EXCEPT AT THE
REFINERS' PLEASURE AND ON THEIR TERMS.  THE REFINERS THUS EFFECTIVELY
CONTROL THE QUANTITY OF BEETS GROWN, HARVESTED AND MARKETED, AND
CONSEQUENTLY OF SUGAR SOLD FROM THE AREA IN INTERSTATE COMMERCE, EVEN
WHEN THEY COMPETE WITH EACH OTHER.  THEY DOMINATE THE ENTIRE INDUSTRY. 
AND THEIR DOMINANT POSITION, TOGETHER WITH THE OBSTACLES CREATED BY THE
NECESSITY FOR LARGE CAPITAL INVESTMENT AND THE TIME REQUIRED TO MAKE IT
PRODUCTIVE, MAKES OUTLET THROUGH NEW COMPETITION PRACTICALLY
IMPOSSIBLE.  UPON THE ALLEGATIONS, IT IS ABSOLUTELY SO FOR ANY SINGLE
GROWING SEASON.  A TIGHTER OR MORE ALL-INCLUSIVE MONOPOLISTIC POSITION
HARDLY CAN BE CONCEIVED. 

WHEN THEREFORE THE REFINERS CEASE ENTIRELY TO COMPETE WITH EACH OTHER
IN ALL STAGES OF THE INDUSTRY PRIOR TO MARKETING THE SUGAR, THE LAST
VESTIGE OF LOCAL COMPETITION IS REMOVED AND WITH IT THE ONLY
COMPETITIVE OPPORTUNITY FOR THE GROWER TO MARKET HIS PRODUCT.  MOREOVER
IT IS INCONCEIVABLE THAT THE MONOPOLY SO CREATED WILL HAVE NO EFFECTS
FOR THE LESSENING OF COMPETITION IN THE LATER INTERSTATE PHASES OF THE
OVER-ALL ACTIVITY OR THAT THE EFFECTS IN THOSE PHASES WILL HAVE NO
REPERCUSSIONS UPON THE PRIOR ONES, INCLUDING THE PRICE RECEIVED BY THE
GROWERS. 

THERE WERE INDEED TWO DISTINCT EFFECTS FLOWING FROM THE AGREEMENT FOR
PAYING UNIFORM GROWERS' PRICES, ONE IMMEDIATELY UPON THE PRICE RECEIVED
BY THE GROWER RENDERING IT DEVOID OF ALL COMPETITIVE INFLUENCE IN
AMOUNT; THE OTHER, THE NECESSARY AND INEVITABLE EFFECT OF THAT
AGREEMENT, IN THE SETTING OF THE INDUSTRY AS A WHOLE, TO REDUCE
COMPETITION IN THE INTERSTATE DISTRIBUTION OF SUGAR. 

THE IDEA THAT STABILIZATION OF PRICES PAID FOR THE ONLY RAW MATERIAL
CONSUMED IN AN INDUSTRY HAS NO INFLUENCE TOWARD REDUCING COMPETITION IN
THE DISTRIBUTION OF THE FINISHED PRODUCT, IN AN INTEGRATED INDUSTRY
SUCH AS THIS, IS IMPOSSIBLE TO ACCEPT.  BY THEIR AGREEMENT THE
COMBINATION OF REFINERS ACQUIRED NOT ONLY A MONOPOLY OF THE RAW
MATERIAL BUT ALSO AND THEREBY CONTROL OF THE QUANTITY OF SUGAR
MANUFACTURED, SOLD AND SHIPPED INTERSTATE FROM THE NORTHERN CALIFORNIA
PRODUCING AREA.  IN SUBSTANCE AND ROUGHLY, IF NOT PRECISELY, THEY
ALLOCATED AMONG THEMSELVES THE MARKET FOR CALIFORNIA BEETS
SUBSTANTIALLY UPON THE BASIS OF QUOTAS COMPETITIVELY ESTABLISHED AMONG
THEM AT THE TIME THE UNIFORM PRICE ARRANGEMENT WAS AGREED UPON.  IT IS
HARDLY LIKELY THAT ANY REFINER WOULD HAVE ENTERED INTO AN AGREEMENT
WITH ITS ONLY COMPETITORS, THE EFFECT OF WHICH WOULD HAVE BEEN TO DRIVE
AWAY ITS GROWERS, OR THEREFORE THAT MANY OF THE LATTER WOULD HAVE GOOD
REASON TO SHIFT THEIR DEALINGS WITHIN THE CLOSED CIRCLE.  THUS CONTROL
OF QUANTITY IN THE INTERSTATE MARKET WAS ENHANCED. 

THIS EFFECT WAS FURTHER MAGNIFIED BY THE FACT THAT THE WIDELY
SCATTERED LOCATION OF SUGAR BEET GROWING REGIONS AND THEIR DIFFERENT
ACCESSIBILITIES TO MARKET  FN22  GIVE THE REFINERS OF EACH REGION
CERTAINLY SOME ADVANTAGE OVER GROWERS AND REFINERS IN OTHER REGIONS,
AND UNDOUBTEDLY LARGE ONES OVER THOSE MOST DISTANT FROM THE SEGMENT OF
THE INTERSTATE MARKET SERVED BY REASON OF BEING NEAREST TO HAND. 

FINALLY, THE INTERDEPENDENCE AND INEXTRICABLE RELATIONSHIP BETWEEN
THE INTERSTATE AND THE INTRASTATE EFFECTS OF THE COMBINATION AND
MONOPOLY ARE SHOWN PERHAPS MOST CLEARLY BY THE PROVISION OF THE UNIFORM
PRICE AGREEMENT WHICH TIES IN THE PRICE PAID FOR BEETS WITH THE PRICE
RECEIVED FOR SUGAR.  THE PERCENTAGE FACTOR OF INTERSTATE RECEIPTS FROM
SUGAR WHICH THE GROWER'S CONTRACT SPECIFIES SHALL ENTER HIS PRICE FOR
BEETS MAKES THAT PRICE DEPENDENT UPON THE PRICE OF SUGAR SOLD
INTERSTATE.  THE UNIFORM AGREEMENT'S EFFECT, WHEN ADDED TO THIS, IS TO
DEPRIVE THE GROWER OF THE ADVANTAGE OF THE INDIVIDUAL EFFICIENCY OF THE
REFINER WITH WHICH HE DEALS, IN THIS CASE THE MOST EFFICIENT OF THE
THREE, AND OF THE PRICE THAT REFINER RECEIVES.  IT IS ALSO TO REFLECT
IN THE GROWER'S PRICE THE CONSEQUENCES OF THE COMBINATION'S EFFECTS FOR
REDUCING COMPETITION AMONG THE REFINERS IN THE INTERSTATE DISTRIBUTION
OF SUGAR. 

IN SUM, THE RESTRAINT AND ITS MONOPOLISTIC EFFECTS WERE REFLECTED
THROUGHOUT EACH STAGE OF THE INDUSTRY, PERMEATING ITS ENTIRE
STRUCTURE.  THIS WAS THE NECESSARY AND INEVITABLE EFFECT OF THE
AGREEMENT AMONG THE REFINERS TO PAY UNIFORM PRICES FOR BEETS, IN THE
CIRCUMSTANCES OF THIS CASE.  THOSE MONOPOLISTIC EFFECTS NOT ONLY
DEPRIVED THE BEET GROWERS OF ANY COMPETITIVE OPPORTUNITY FOR DISPOSING
OF THEIR CROPS BY THE IMMEDIATE OPERATION OF THE UNIFORM PRICE
PROVISION; THEY ALSO TENDED TO INCREASE CONTROL OVER THE QUANTITY OF
SUGAR SOLD INTERSTATE; AND FINALLY BY THE TIE-IN PROVISION THEY
INTERLACED THOSE INTERSTATE EFFECTS WITH THE PRICE PAID FOR THE BEETS. 

THESE RESTRICTIVE AND MONOPOLISTIC EFFECTS, RESULTING NECESSARILY
FROM THE PRACTICES ALLEGEDLY INTENDED TO PRODUCE THEM, FALL SQUARELY
WITHIN THE SHERMAN ACT'S PROHIBITIONS, CREATING THE VERY INJURIES THEY
WERE DESIGNED TO PREVENT, BOTH TO THE PUBLIC AND TO PRIVATE
INDIVIDUALS. 

IT DOES NOT MATTER, CONTRARY TO RESPONDENT'S VIEW, THAT THE GROWERS
CONTRACTING WITH THE OTHER TWO REFINERS MAY HAVE BEEN BENEFITED, RATHER
THAN HARMED, BY THE COMBINATION'S EFFECTS, EVEN IF THAT RESULT IS
ASSUMED TO HAVE FOLLOWED.  IT IS ENOUGH THAT THESE PETITIONERS HAVE
SUFFERED THE INJURIES FOR WHICH THE STATUTORY REMEDY IS AFFORDED.  FOR
THE TEST OF THE LEGALITY AND IMMUNITY OF SUCH A COMBINATION, IN VIEW OF
THE STATUTE'S POLICY, IS NOT THAT SOME OTHERS THAN THE MEMBERS OF THE
COMBINATION HAVE PROFITED BY ITS OPERATION.  IT IS RATHER WHETHER THE
STATUTE'S POLICY HAS BEEN VIOLATED IN A MANNER TO PRODUCE THE GENERAL
CONSEQUENCES IT FORBIDS FOR THE PUBLIC AND THE SPECIAL CONSEQUENCES FOR
PARTICULAR INDIVIDUALS ESSENTIAL TO THE RECOVERY OF TREBLE DAMAGES. 
BOTH TYPES OF INJURY ARE PRESENT IN THIS CASE, FOR IN ADDITION TO THE
RESTRAINTS PUT UPON THE PUBLIC INTEREST IN THE INTERSTATE SALE OF
SUGAR, ENHANCING THE REFINER'S CONTROLS, THERE ARE SPECIAL INJURIES
AFFECTING THE PETITIONERS RESULTING FROM THOSE EFFECTS AS WELL AS FROM
THE IMMEDIATE OPERATION OF THE UNIFORM PRICE ARRANGEMENT ITSELF. 

THE FACT THAT THAT ARRANGEMENT IS THE SOURCE OF BOTH EFFECTS CANNOT
BE TAKEN TO MEAN THAT NEITHER IS OUTLAWED BY THE STATUTE, IN VIEW OF
THEIR INTERDEPENDENCE AND THE COMPLETELY UNIFIED AND COMPREHENSIVE
NATURE OF THE SCHEME AS RESPECTS ITS INTERSTATE AND INTRASTATE PHASES. 
THE POLICY OF THE ACT IS COMPETITION.  IT CANNOT BE FLOUTED, AS HAS
BEEN DONE HERE, BY ARTIFICIAL NOMENCLATURAL SEVERANCE OF THE PLAN'S
FORBIDDEN EFFECTS, ANY MORE THAN BY SUCH A SEGMENTATION OF THE
INTEGRATED INDUSTRY INTO LEGALLY UNRELATED PHASES.  NOR CAN THE
SEVERANCE BE MADE IN SUCH A CASE MERELY BY VIRTUE OF THE FACT THAT A
REFINING OR MANUFACTURING PROCESS CONSTITUTES AN INTERMEDIATE STAGE IN
THE WHOLE. 

TO COMPARE AN INDUSTRY SO COMPLETELY INTERLOCKED IN ALL ITS STAGES,
BY ALL-INCLUSIVE CONTRACT AS WELL AS BY INDUSTRIAL STRUCTURE AND
ORGANIZATION, WITH ONE LIKE PRODUCING, PROCESSING, AND MARKETING
FRUITS, VEGETABLES, CORN, OR OTHER PRODUCTS, SUSCEPTIBLE OF VARIOUS
USES AND UNDER CONDITIONS AFFORDING VARIED OUTLETS FOR MARKET, BOTH
LOCAL AND INTERSTATE, IN THE RAW OR REFINED STATE, IN WHICH NEITHER
SUCH A CONTRACTUAL NOR SUCH AN INDUSTRIAL INTEGRATION EXISTS, IS TO
IGNORE THE FACTS OF INDUSTRIAL LIFE.  SO IS IT ALSO TO MAKE CONCLUSIVE
COMPARISONS WITH OTHER INDUSTRIES IN WHICH THE MANUFACTURING PROCESS
REQUIRES AND HAS AVAILABLE A GREATER VARIETY OF RAW MATERIALS FOR
MAKING THE FINISHED PRODUCT, AND INVOLVES A LONGER AND MORE EXTENSIVE
PROCESS OF CHANGE, THAN DOES EXTRACTING THE SUGAR CONTENT OF BEETS TO
MAKE RAW SUGAR. 

WE DEAL WITH THE FACTS BEFORE US.  WITH RESPECT TO OTHERS WHICH MAY
BE SIGNIFICANTLY DIFFERENT, FOR PURPOSES OF VIOLATING THE STATUTE'S
TERMS AND POLICY, WE AWAIT ANOTHER DAY.  FN23

                      IV. 

LITTLE MORE REMAINS TO BE SAID CONCERNING THE AMENDED COMPLAINT.  THE
ALLEGATIONS COMPREHEND ALL THAT WE HAVE SET FORTH.  WE DO NOT STOP TO
RESTATE THEM, LEAVING THEIR SUBSTANCE AT THIS POINT FOR REFERENCE TO
THE SUMMARY MADE AT THE BEGINNING OF THIS OPINION. 

RESPONDENT HAS PRESENTED ITS ARGUMENT AS IF THE AMENDED COMPLAINT
OMITTED ALL REFERENCE TO RESTRAINT OR EFFECTS UPON INTERSTATE TRADE IN
SUGAR AND CONFINED THESE ALLEGATIONS TO THE TRADE IN BEETS.  IT IS TRUE
THAT AT THE HEARING WHICH FOLLOWED FILING OF THE AMENDED COMPLAINT,
PETITIONERS AT ONE POINT, APPARENTLY IN RESPONSE TO SOME INTIMATION
FROM THE COURT, ELIMINATED THE WORDS "SUGAR AND SUGAR BEETS" FROM ONE
OF THE ALLEGATIONS THAT THE REFINERS HAD CONSPIRED TO "MONOPOLIZE AND
RESTRAIN TRADE AND COMMERCE AMONG THE SEVERAL STATES  ...  "  FN24 

RESPONDENT TAKES THIS ELISION AS EFFECTIVE TO CONSTITUTE AN EXPRESS
DISAVOWAL BY PETITIONERS OF ANY CHARGE OF RESTRAINT OF TRADE IN SUGAR,
THE ONLY INTERSTATE COMMODITY.  THE AMENDMENT DID NOT ELIMINATE OR
AFFECT NUMEROUS OTHER ALLEGATIONS WHICH IN EFFECT REPEATED THE CHARGE
IN VARIOUS FORMS AND WITH REFERENCE TO VARIOUS SPECIFIC EFFECTS UPON
INTERSTATE AS WELL AS LOCAL PHASES OF THE COMMERCE.  SOME OF THESE
EXPLICITLY SPECIFIED TRADE OR COMMERCE IN SUGAR,  FN25  OTHERS
DESIGNATED THE TRADE AFFECTED AS INTERSTATE, WHICH ON THE FACTS COULD
MEAN ONLY SUGAR.  MOREOVER, PETITIONERS DENY THE DISAVOWAL, BOTH IN
INTENT AND IN EFFECT.  THEY SAY THE ELISION WAS INSUBSTANTIAL, SINCE IN
THE CLAUSE FROM WHICH IT WAS MADE THE ALLEGATION OF CONSPIRACY TO
MONOPOLIZE AND RESTRAIN INTERSTATE COMMERCE REMAINED, AND THE ONLY
INTERSTATE TRADE WAS IN SUGAR.  WE THINK THE AMENDMENT, FOR WHATEVER
REASON MADE, WAS NOT EFFECTIVE TO CONSTITUTE A DISAVOWAL, DISCLAIMER OR
WAIVER. 

THE ALLEGATIONS ARE COMPREHENSIVE AND, FOR THE GREATER PART, SPECIFIC
CONCERNING BOTH THE RESTRAINTS AND THEIR EFFECTS.  THEY CLEARLY STATE A
CAUSE OF ACTION UNDER THE SHERMAN ACT. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED, AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1 THE ORIGINAL COMPLAINT CONTAINED THREE COUNTS, THE FIRST ALLEGING
VIOLATIONS OF THE SHERMAN ACT AND THE SECOND AND THIRD CHARGING BREACH
OF CONTRACTS MADE IN 1940 AND 1941 RESPECTIVELY.  IN ORDER TO EXPEDITE
DECISION AND REVIEW UPON THE SHERMAN ACT CONTENTION, BY STIPULATION THE
AMENDED COMPLAINT WAS FILED SETTING FORTH, WITH AN AMENDMENT TO BE
NOTED, SEE NOTE 5, ONLY THE ALLEGATIONS OF THE SHERMAN ACT COUNT.  THE
STIPULATION PROVIDED FOR FOLLOWING THIS COURSE WITHOUT PREJUDICE TO
FURTHER ASSERTION BY PETITIONERS OF RIGHTS UNDER THE TWO CONTRACT
COUNTS WITHIN A SPECIFIED PERIOD FOLLOWING FINAL DETERMINATION OF THE
SHERMAN ACT ISSUES. 

FN2  IT WAS ALLEGED THAT THE BEETS, WHEN HARVESTED, ARE "BULKY AND
SEMI-PERISHABLE AND INCAPABLE OF BEING TRANSPORTED OVER LONG DISTANCES
OR OF BEING STORED CHEAPLY OR SAFELY FOR ANY EXTENDED PERIOD.  ...
WHEN RIPE, DETERIORATED RAPIDLY IF KEPT IN THE GROUND AND NOT
HARVESTED, AND IT WAS NECESSARY TO HARVEST THEM PROMPTLY WHEN
MATURED." 

THERE WERE ALSO ALLEGATIONS THAT INITIAL OUTLAY, ANNUAL UPKEEP AND
OPERATING EXPENSES, AND TIME REQUIRED FOR ERECTING AND EQUIPPING A
REFINERY, WERE SO GREAT THAT NO COMPETITION FROM ANY NEW REFINERY COULD
BE EXPECTED SHORT OF TWO YEARS AT BEST; THAT THE THREE REFINERS HAD A
MONOPOLY IN THE AREA OF THE SUPPLY OF SEEDS AND OF REFINING; AND THAT
NO GROWER IN THE REGION COULD SELL BEETS AT A PROFIT EXCEPT TO ONE OF
THE THREE REFINERS. 

FN3  THESE INCLUDE CUTTING OFF THE BEET TOPS, TRIMMING THE CROWNS IN
A SPECIFIED WAY, AND REMOVING ALL FOREIGN SUBSTANCES LIKELY TO
INTERFERE WITH FACTORY WORK. 

FN4  NET RETURNS FROM SUGAR SALES WERE MEASURED BY GROSS SALES PRICE
LESS SELLING EXPENSES DIRECTLY APPLICABLE TO SUGAR.  MONTHLY
SETTLEMENTS WERE MADE FOR BEETS DELIVERED DURING THE PRECEDING MONTH ON
THE ESTIMATED NET RETURNS OF THE REFINER.  BUT FINAL SETTLEMENT HAD TO
BE DEFERRED UNTIL THE END OF THE SEASON WHEN NET RETURNS COULD BE
ACCURATELY DETERMINED. 

FN5  AT THIS POINT THE WORDS "IN SUGAR AND SUGAR BEETS" APPEARED IN
THE ORIGINAL COMPLAINT.  THEY WERE STRICKEN FROM THE AMENDED COMPLAINT
BY PETITIONERS' COUNSEL PRIOR TO DISMISSAL OF THAT COMPLAINT.  CF. NOTE
1.  THIS CHANGE HOWEVER DID NOT AFFECT NUMEROUS OTHER ALLEGATIONS
REMAINING IN THE AMENDED COMPLAINT CONCERNING THE COMBINATION'S
RESTRICTIVE AND MONOPOLISTIC EFFECTS UPON INTERSTATE TRADE IN SUGAR. 
SEE NOTE 6 AND TEXT; ALSO NOTE 24 AND TEXT PART IV INFRA.    FN6
PARAGRAPH XIX OF THE AMENDED COMPLAINT SUMMARIZED PETITIONERS'
CONCLUSIONS AS FOLLOWS:  "BY REASON OF THE FOREGOING ACTS OF THE
DEFENDANT AND ITS SAID CONSPIRATORS, INTERSTATE COMMERCE IN SUGAR WAS
ILLEGALLY RESTRAINED, COMPETITION THEREIN WAS NOT ONLY SUBSTANTIALLY
LESSENED BUT WAS DESTROYED, THE PRICE OF SUGAR BEETS WAS ILLEGALLY
FIXED, AND AN ILLEGAL MONOPOLY WAS ESTABLISHED, ALL IN VIOLATION OF THE
ANTI-TRUST LAWS OF THE UNITED STATES, TO THE DAMAGE OF PLAINTIFFS AS
AFORESAID."  CF. NOTES 5 AND 24. 

FN7  IT IS NOT CLEAR WHETHER DAMAGES WERE TO BE MEASURED BY THE
DIFFERENCE BETWEEN THE PRICES ACTUALLY PAID AND THOSE THAT WOULD HAVE
BEEN PAID IF BASED ON RESPONDENT'S SEPARATE RETURNS, OR BY THE
DIFFERENCE BETWEEN THE PRICES PAID AND THE PRICES SET BY THE SECRETARY
OF AGRICULTURE, PURSUANT TO THE SUGAR ACT OF 1937, 50 STAT. 910, 7
U.S.C. SEC. 1131(D); SEE 5 FED. REG. 5231.  BUT THAT IS AN ISSUE THAT
NEED NOT CONCERN US NOW.  PETITIONER MANDEVILLE ISLAND FARMS PRAYED
JUDGMENT FOR $315,043.80; PETITIONER ZUCKERMAN FOR $112,192.14. 

FN8  IT HAS BEEN PREVIOUSLY NOTED HERE THAT THE COURT APPLIED THESE
LABELS AS A HERITAGE FROM PRIOR DECISIONS UNDER THE COMMERCE CLAUSE,
DEALING NOT AS THE KNIGHT CASE WITH AN ACT OR ACTS OF CONGRESS, BUT
WITH THE VALIDITY OF STATE STATUTES, WICKARD V. FILBURN, 317 U.S. 111,
121; UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533,
543-545, AN APPROACH REFLECTING MARSHALL'S IDEA OF THE MUTUAL
EXCLUSIVENESS OF STATE AND NATIONAL POWER IN THIS AREA AND IGNORING THE
LATER EVOLUTION OF DIFFERENT CONCEPTIONS IN COOLEY V. BOARD OF WARDENS,
12 HOW.  299.  SEE PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408, 412
427. 

FN9  COMPARE, E.G., UNITED STATES V. E.C. KNIGHT CO., 156 U.S. 1,
WITH STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, AND UNITED STATES
V. AMERICAN TOBACCO CO., 221 U.S. 106; HAMMER V. DAGENHART, 247 U.S.
251, WITH UNITED STATES V. DARBY, 312 U.S. 100; CARTER V. CARTER COAL
CO., 298 U.S. 238, WITH SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381;
UNITED STATES V. CHICAGO, ETC., R. CO., 282 U.S. 311, AND RAILROAD
RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330, WITH UNITED STATES V.
LOWDEN, 308 U.S. 225; HOPKINS V. UNITED STATES, 171 U.S. 578, WITH
STAFFORD V. WALLACE, 258 U.S. 495; EMPLOYERS' LIABILITY CASES, 207 U.S.
463, 498, WITH VIRGINIAN R. CO. V. FEDERATION, 300 U.S. 515, 557, AND
WEISS V. UNITED STATES, 308 U.S. 321; NEW YORK LIFE INSURANCE CO. V.
DEER LODGE COUNTY, 231 U.S. 495 AND AUTHORITIES CITED, WITH UNITED
STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533, AND
PRUDENTIAL INSURANCE CO. V. BENJAMIN, 328 U.S. 408. 

FN10  SEE PARTICULARLY THE DISCUSSION IN 317 U.S. AT 119-120.  SEE
ALSO PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408; UNITED STATES V.
SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533; LABOR BOARD V. JONES &
LAUGHLIN, 301 U.S. 1; UNITED STATES V. DARBY, 312 U.S. 100; UNITED
STATES V. WRIGHTWOOD DAIRY CO., 315 U.S. 110; STERN, THE COMMERCE
CLAUSE AND THE NATIONAL ECONOMY, 1933-1946, 59 HARV. L. REV. 645, 883. 

THE FILBURN CASE DEALT WITH THE SECOND AGRICULTURAL ADJUSTMENT ACT
AND THE POWER OF CONGRESS TO ENACT IT.  BUT, REFERRING TO THE FIRST
INTERSTATE COMMERCE ACT AND THE SHERMAN ACT, THE COURT IN THE FILBURN
CASE (PP. 121-122) SAID THAT THOSE STATUTES "USHERED IN NEW PHASES OF
ADJUDICATION" REQUIRING A DIFFERENT APPROACH TO INTERPRETATION OF THE
COMMERCE CLAUSE, ALTHOUGH "WHEN IT FIRST DEALT WITH THIS NEW
LEGISLATION, THE COURT ADHERED TO ITS EARLIER PRONOUNCEMENTS, AND
ALLOWED BUT LITTLE SCOPE TO THE POWER OF CONGRESS."  FOR THE LATTER
STATEMENT THE KNIGHT CASE WAS CITED AS THE PRINCIPAL EXAMPLE. 

FN11  THE DOCTRINE ENCOMPASSED FUNDAMENTALLY NOT MERELY AN EXPANDING
FACTOR IN FEDERAL POWER OVER TRANSPORTATION.  IT WAS RATHER AN INTEGER
IN THE SUM OF POWER OVER COMMERCE, OF WHICH AUTHORITY OVER
TRANSPORTATION WAS BUT A PART.  THE "AFFECTATION" APPROACH WAS ACTUALLY
A REVIVAL OF MARSHALL'S "NECESSARY AND PROPER" DOCTRINE, CF. WICKARD V.
FILBURN, 317 U.S. 111, 120, 122, BUT UNQUALIFIED BY HIS IDEA OF MUTUAL
EXCLUSIVENESS, SEE NOTE 8.  ONCE APPLIED TO TRANSPORTATION AND THE
INTERSTATE COMMERCE ACTS, IT WAS INEVITABLE THAT THE APPROACH WOULD BE
EXTENDED TO THE PRODUCTIVE AND INDUSTRIAL PHASES OF THE NATIONAL
ECONOMY AND THE STATUTES REGULATING THEM, INCLUDING THE SHERMAN ACT. 
TIME AND EVENTS WERE DISCLOSING EVER MORE CLEARLY THE IMPACT OF THEIR
EFFECTS UPON INTERSTATE TRADE AND COMMERCE.  AND THIS WAS POSING THE
SAME NECESSITY FOR REGULATION AS IN THE FIELD OF TRANSPORTATION, IN
ORDER TO PROTECT AND PRESERVE THE NATIONAL COMMERCE AND CARRY OUT
CONGRESS' POLICY REGARDING IT. 

FN12  UNITED STATES V. READING CO., 253 U.S. 26; UNITED STATES V.
KEYSTONE WATCH CASE CO., 218 F. 502; PENNSYLVANIA SUGAR REFINING CO. V.
AMERICAN SUGAR REFINING CO., 166 F. 254; UNITED STATES V. E.I. DU PONT
DE NEMOURS & CO., 188 F. 127.  SEE MR. JUSTICE HOLMES DISSENTING IN
HAMMER V. DAGENHART, 247 U.S. 251, 279. 

FN13  MONTAGUE & CO. V. LOWRY, 193 U.S. 38; SWIFT & CO. V. UNITED
STATES, 196 U.S. 375; UNITED STATES V. PATTEN, 226 U.S. 525; BINDERUP
V. PATHE EXCHANGE, 263 U.S. 291; FEDERAL TRADE COMMISSION V. PACIFIC
PAPER ASSN., 273 U.S. 52; STEVENS CO. V. FOSTER & KLEISER CO., 311 U.S.
255; BIGELOW V. RKO RADIO PICTURES, 327 U.S. 251. 

FN14  IN UNITED STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293, 297,
WE SAID:  "IT IS TRUE THAT THIS COURT HAS ON OCCASION DETERMINED THAT
LOCAL CONDUCT COULD BE INSULATED FROM THE OPERATION OF THE ANTI-TRUST
LAWS ON THE BASIS OF THE PURELY LOCAL AIMS OF A COMBINATION, INSOFAR AS
THOSE AIMS WERE NOT MOTIVATED BY THE PURPOSE OF RESTRAINING COMMERCE,
AND WHERE THE MEANS USED TO ACHIEVE THE PURPOSE DID NOT DIRECTLY TOUCH
UPON INTERSTATE COMMERCE."  THE DECISIONS CITED WERE INDUSTRIAL
ASSOCIATION OF SAN FRANCISCO V. UNITED STATES, 268 U.S. 64; LEVERING &
GARRIGUES CO. V. MORRIN, 289 U.S. 103; UNITED LEATHER WORKERS V.
HERKERT & MEISEL TRUNK CO., 265 U.S. 457; CF. LOCAL 167 V. UNITED
STATES, 291 U.S. 293, 297, AND UNITED STATES V. HUTCHESON, 312 U.S.
219. 

FN15  UNITED STATES V. FRANKFORT DISTILLERIES, 324 U.S. 293, AND
AUTHORITIES CITED. 

FN16  CF. UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150;
AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781; UNITED STATES V.
PATTEN, 226 U.S. 525; SWIFT & CO. V. UNITED STATES, 196 U.S. 375.  EACH
CASE INVOLVED OUTLAWED PRACTICES BY PERSONS WHO WERE BOTH PURCHASERS
AND SELLERS, AND FORBIDDEN EFFECTS UPON SELLERS AS WELL AS PURCHASERS
AND CONSUMERS. 

FN17  SEE NOTE 16. 

FN18  COMPARE ARKADELPHIA MILLING CO. V. ST. LOUIS SOUTHWESTERN R.
CO., 249 U.S. 134, WITH CLOVERLEAF BUTTER CO. V. PATTERSON, 315 U.S.
148. 

FN19  SWIFT & CO. V. UNITED STATES, 196 U.S. 375; AMERICAN TOBACCO
CO. V. UNITED STATES, 328 U.S. 781; UNITED STATES V. ALUMINUM CO. OF
AMERICA, 148 F.2D 416. 

FN20  THE NATURAL FACTORS INCLUDE THE PECULIAR NATURE OF THE CROP IN
ITS LIMITATION TO A SINGLE PRIMARY AND COMMERCIALLY PROFITABLE USE, THE
NECESSITY FOR IMMEDIATE AND NEARBY MARKETING TO FOLLOW DIRECTLY UPON
HARVESTING, AND THE WELL-KNOWN FACT THAT SUGAR BEETS ARE GROWN ONLY IN
WIDELY SCATTERED REGIONS SPECIALLY ADAPTED TO THE CROP IN SOIL, CLIMATE
AND AVAILABILITY OF WATER IN LARGE QUANTITIES DURING THE GROWING
SEASON. 

FN21  RESULTING IN LARGE PART FROM THE NATURAL LIMITATIONS STATED IN
NOTE 20 AND THE FACT THAT EXTRACTING THE SUGAR CONTENT FROM THE BEETS
IS AN ELABORATE AND TECHNICAL PROCESS, IS THE FURTHER IMPORTANT FACT
THAT THE PROCESSING CANNOT BE DONE BY THE GROWERS INDIVIDUALLY OR EVEN
IN SMALL COOPERATIVE GROUPS, BUT REQUIRES SPECIALIZED AND LARGESCALE
BUSINESS ORGANIZATION, EQUIPMENT AND INVESTMENT.  ALL THESE FACTORS AND
PERHAPS OTHERS COMBINE TO MAKE THE REFINING STAGE OF THE INDUSTRY A
SPECIALIZED MANUFACTURING ONE TO BE CARRIED ON SEPARATELY FROM GROWING,
TO ESTABLISH THE REFINERS' KEY PLACE IN THE ENTIRE INDUSTRY, AND THUS
TO LEAVE THE GROWERS COMPLETELY AT THE REFINERS' MERCY FOR THE
PROFITABLE PRODUCTION OF BEETS EXCEPT AS THE LATTER MAY COMPETE AMONG
THEMSELVES. 

FN22 SEE NOTE 20. 

FN23  IT IS SUGGESTED THAT PARKER V. BROWN, 317 U.S. 341, IS
INCONSISTENT WITH OUR CONCLUSION HERE.  THE COURT THERE HELD FIRST THAT
THE SHERMAN ACT DID NOT APPLY BECAUSE THE PROGRAM WAS SPONSORED BY THE
STATE OF CALIFORNIA.  CONTRARY TO THE PRESENT SUGGESTION, THE OPINION
ASSUMES THAT THE RELATION BETWEEN THE INTRASTATE AND THE INTERSTATE
COMMERCE IN RAISINS WAS SUFFICIENT TO JUSTIFY FEDERAL REGULATION, IF
THE STATE-SPONSORED PROGRAM OF PRORATING HAD BEEN "ORGANIZED AND MADE
EFFECTIVE SOLELY BY VIRTUE OF A CONTRACT, COMBINATION OR CONSPIRACY OF
PRIVATE PERSONS, INDIVIDUAL OR CORPORATE."  317 U.S. AT 350.  THE CASE
THEREFORE CONTAINS NO SUGGESTION, ON THE FACTS OR ON THE LAW, CONTRARY
TO THE RESULT NOW REACHED. 

FN24  SEE NOTE 5.  BY WAY OF EXPLAINING THE DELETION, THE RECORD
CONTAINS ONLY THE STATEMENT OF THE STIPULATION, CF. NOTE 1, THAT THE
AMENDED COMPLAINT ELIMINATED "WHAT THE COURT CONSIDERED AN AMBIGUITY IN
THE (ORIGINAL) COMPLAINT."  WITH NO FURTHER SUPPORT FROM THE RECORD, IT
HAS BEEN ASSUMED THAT THE AMBIGUITY SO ELIDED WAS THE REFERENCE TO
RESTRAINT OF INTERSTATE TRADE IN SUGAR AND HENCE THE PETITIONERS IN
MAKING IT STATED THEMSELVES OUT OF COURT. 

APART FROM THE FACT THAT THE ELISION DID NOT AFFECT NUMEROUS OTHER
LIKE ALLEGATIONS, SEE NOTE 6 AND TEXT, THE DELETION INCLUDED THE
SPECIFICATIONS OF BOTH "SUGAR AND SUGAR BEETS."  FROM THIS THE LITERAL
INFERENCE, IF ANY OF THE SORT COULD BE MADE, WOULD BE THAT THE ELISION
WAS INTENDED TO WITHDRAW ALL CHARGES OF MONOPOLY OR RESTRAINT OF TRADE,
WHETHER IN SUGAR OR IN BEETS, AND THUS TO CONCEDE THERE WAS NO CASE
UNDER THE SHERMAN ACT, A CONCLUSION OBVIOUSLY AT WAR WITH THE REMAINING
ALLEGATIONS OF RESTRAINT OF TRADE IN BOTH SUGAR AND SUGAR BEETS. 

BUT, IF ANY DIFFERENCE BETWEEN THE TWO COULD BE ASSUMED AS HAVING
BEEN INTENDED, IT IS MUCH MORE LIKELY THAT THE SUPPOSED AMBIGUITY
DELETED AROSE FROM THE REFERENCE TO INTERSTATE TRADE IN BEETS, SINCE
THE ALLEGATION AS A WHOLE REFERRED ONLY TO "INTERSTATE TRADE AND
COMMERCE" AND ON THE FACTS PLEADED THE ONLY TRADE IN BEETS WAS
INTRASTATE (CONSIDERED APART, AS RESPONDENT WOULD DO, FROM ITS RELATION
TO AND EFFECTS UPON THE TRADE IN SUGAR). 

IN ANY EVENT THE CASE IS TO BE DECIDED UPON THE SUM OF THE
ALLEGATIONS OF THE AMENDED COMPLAINT, NOT UPON CONJECTURE AS TO WHY A
PARTICULAR AND, WE THINK, IMMATERIAL AMENDMENT OF ONE ALLEGATION WAS
MADE.  INDEED THE ENTIRE ALLEGATION COULD HAVE BEEN ELIDED WITHOUT
AFFECTING THE SUBSTANCE OR VALIDITY OF THE REMAINDER OF THE AMENDED
COMPLAINT TO STATE A CAUSE OF ACTION UNDER THE SHERMAN ACT.  THERE WAS
MORE THAN ENOUGH WITHOUT IT. 

FN25  E.G., IN THE ALLEGATION QUOTED IN NOTE 6, AS WELL AS OTHERS SET
FORTH IN THE TEXT PRECEDING THAT NOTE. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
DISSENTING. 

IT APPEARS TO ME THAT THE COURT'S OPINION IS BASED ON ASSUMPTIONS OF
FACT WHICH THE PETITIONER DISCLAIMED IN THE COURT BELOW.  THESE
ASSUMPTIONS ARE PERMISSIBLE INFERENCES FROM THE AMENDED COMPLAINT ONLY
IF WE DISREGARD THE WAY IN WHICH THE AMENDMENTS CAME ABOUT. 

ON HEARING, THE TRIAL JUDGE APPARENTLY CONSIDERED THAT A CAUSE OF
ACTION WOULD BE STATED ONLY IF THE COMPLAINT ALLEGED THAT THE GROWING
CONTRACTS AFFECTED THE PRICE OF SUGAR IN INTERSTATE COMMERCE.  BUT THE
CONTRACTS ACCOMPANYING THE PLEADINGS INDICATED THAT THE EFFECTS RAN IN
THE OTHER DIRECTION.  THE MARKET PRICE OF INTERSTATE SUGAR WAS THE BASE
ON WHICH THE PRICE OF BEETS WAS TO BE FIGURED.  THE LATTER PRICE WAS
DERIVED FROM THE INCOME WHICH RESPONDENT AND OTHERS RECEIVED FROM SUGAR
SOLD IN THE OPEN MARKET OVER THE PERIOD OF A YEAR.  THE TRIAL JUDGE
THEREFORE SUGGESTED THAT THE REFERENCES TO RESTRAINT OF TRADE IN SUGAR
IN INTERSTATE COMMERCE CREATED AN AMBIGUITY IN THE COMPLAINT. 
ACCORDINGLY, THE PLAINTIFF, AT THE SUGGESTION OF THE COURT AND FOR THE
SPECIFIC PURPOSE OF THIS APPEAL, FILED AN AMENDED COMPLAINT WHICH
COMPLETELY ELIMINATED THE CHARGE THAT THE AGREEMENTS COMPLAINED OF
AFFECTED THE PRICE OF SUGAR IN INTERSTATE COMMERCE, AND ELIMINATED THE
TWO OTHER COUNTS "TO ENABLE THE COURT HEREIN TO PASS UPON THE
SUFFICIENCY OF THE FIRST COUNT ON ITS MERITS AND, FURTHER, TO MAKE
POSSIBLE A SPEEDY AND INEXPENSIVE REVIEW BY APPEAL IF THE COURT HELD
THAT THE FIRST COUNT WAS INSUFFICIENT."  FN1  THE DISTRICT COURT THEN
HELD THAT SINCE NO BEETS WHATEVER MOVED IN INTERSTATE COMMERCE AND
SINCE THERE WAS NO CHARGE IN THE AMENDED COMPLAINT THAT THE COST OR
QUALITY OF THE PRODUCT WHICH DID MOVE IN INTERSTATE COMMERCE WAS IN ANY
WAY AFFECTED, NO CAUSE OF ACTION WAS STATED.  THE APPEAL WAS TAKEN AND
THE CIRCUIT COURT OF APPEALS AFFIRMED. 

THIS COURT, HOWEVER, DECIDES THE CASE AS THOUGH THE ORIGINAL
COMPLAINT AS IT RELATED TO SUGAR HAD NOT ONLY REMAINED UNCHANGED BUT
HAD BEEN PROVED BY EVIDENCE.  DESPITE THE DELETION FROM THE COMPLAINT
OF THE ALLEGATION CONCERNING THE PRICE OF SUGAR, THE COURT ASSUMES,
WITHOUT ALLEGATION OR EVIDENCE, THAT THE PRICE OF SUGAR IS AFFECTED AND
ON THAT BASIS BUILDS ITS THESIS THAT THE SHERMAN ACT HAS BEEN
VIOLATED.  I THINK IN FAIRNESS TO THE LITIGANTS AND THE DISTRICT COURT,
THE PETITIONER'S CASE SHOULD BE DISPOSED OF HERE ON THE SAME BASIS ON
WHICH IT WAS PLEADED TO THE COURTS BELOW. 

ON THE PROCEEDINGS IN THE COURTS BELOW, I WOULD AFFIRM THE JUDGMENT
OF THE DISTRICT COURT. 

FN1  THE FULL TEXT OF THE STIPULATION AND ORDER WHICH WAS EXECUTED BY
COUNSEL FOR BOTH PARTIES, AND BY THE DISTRICT JUDGE, IS AS FOLLOWS: 

"WHEREAS, IN ORAL ARGUMENT ON NOVEMBER 13, 1945, ON THE MOTION OF
DEFENDANT TO DISMISS, ETC., HON. BEN HARRISON, THE UNITED STATES
DISTRICT JUDGE BEFORE WHOM SAID MATTER WAS ARGUED, STATEDFROM THE BENCH
TO COUNSEL HEREIN THAT HE FELT THAT THE FIRST CAUSE OF ACTION, IF
SUPPLEMENTED BY COPIES OF THE CONTRACTS ATTACHED TO THE DEFENDANT'S
MOTION TO DISMISS, WOULD NOT STATE FACTS SUFFICIENT TO CONSTITUTE A
CAUSE OF ACTION, AND SUGGESTED THAT IT WOULD BE A TREMENDOUS SAVING OF
TIME AND EXPENSE IF THE COMPLAINT WERE AMENDED (A) BY SETTING FORTH
COPIES OF THE AGREEMENTS INVOLVED IN THE FIRST COUNT, (B) BY
ELIMINATING WHAT THE COURT CONSIDERED AN AMBIGUITY IN THE COMPLAINT,
AND (C) BY THE PARTIES ENTERING INTO A STIPULATION TO ELIMINATE FROM
THE PLEADINGS, FOR THE PURPOSE OF THE APPEAL ONLY AND WITHOUT PREJUDICE
TO THE RIGHTS OF THE PLAINTIFFS, THE SECOND AND THIRD CAUSES OF ACTION,
SO AS TO ENABLE THE COURT HEREIN TO PASS UPON THE SUFFICIENCY OF THE
FIRST COUNT ON ITS MERITS AND, FURTHER, TO MAKE POSSIBLE A SPEEDY AND
INEXPENSIVE REVIEW BY APPEAL IF THE COURT HELD THAT THE FIRST COUNT WAS
INSUFFICIENT; 

"NOW, WHEREFORE, THE PARTIES STIPULATE, WITHOUT PLAINTIFFS' WAIVING
THEIR RIGHTS UNDER THE SECOND AND THIRD COUNTS AND WITHOUT PREJUDICE TO
ANY OF PLAINTIFFS' RIGHTS THEREUNDER, AS FOLLOWS, TO-WIT: 

"1.  PLAINTIFFS WILL FILE AN AMENDED COMPLAINT HEREIN, ATTACHING
COPIES OF THE FORMS OF CONTRACT IN USE IN 1938, 1939, 1940 AND 1941,
AND OMITTING THE SECOND AND THIRD COUNTS. 

"2.  SAID OMISSION OF THE SAID SECOND AND THIRD COUNTS SHALL BE
WITHOUT PREJUDICE TO ANY OF THE RIGHTS OF THE PLAINTIFFS AS TO ANY
CAUSE OR CAUSES OF ACTION INCLUDED OR INCLUDIBLE THEREIN BY AMENDMENT,
AND SHALL NOT BE A RETRAXIT OR A DISMISSAL WITH PREJUDICE. 

"3.  DEFENDANT HEREIN WAIVES, FOR THE PERIOD OF TIME HEREINAFTER SET
FORTH, ANY AND ALL STATUTES OF LIMITATIONS NOW OR HEREAFTER APPLICABLE
TO THE SECOND OR THIRD CAUSES OF ACTION OR ANY MATTERS THEREIN SET
FORTH OR INCLUDIBLE THEREIN BY AMENDMENT, AND WAIVES THE DEFENSE OF
LACHES AS TO THE SECOND AND THIRD CAUSES OF ACTION OR ANY MATTERS
THEREIN SET FORTH OR INCLUDIBLE THEREIN BY AMENDMENT. 

"4.  PLAINTIFFS MAY, AT ANY TIME PRIOR TO SIX MONTHS AFTER THE
DECISION ON APPEAL AS TO THE SUFFICIENCY OF THE FIRST COUNT HAS BECOME
FINAL, EITHER AMEND THE AMENDED COMPLAINT HEREIN BY REALLEGING SAID
SECOND AND THIRD COUNTS OR ANY PORTION OF EITHER, OR, AT ANY TIME
DURING SAID PERIOD, FILE A SEPARATE ACTION OR ACTIONS SETTING FORTH
SAID SECOND AND THIRD COUNTS OR ANY PORTION OF EITHER, ALL WITH THE
SAME FORCE AND EFFECT AS IF SAID SECOND AND THIRD COUNTS WERE
CONTINUOUSLY INCLUDED HEREIN AS SECOND AND THIRD COUNTS FROM THE DATE
OF THE COMMENCEMENT OF THIS ACTION. 

"5.  THE WAIVER OF THE STATUTE OF LIMITATIONS AND OF THE DEFENSE OF
LACHES HEREIN SET FORTH, AND THE STIPULATION PERMITTING THE AMENDMENT
OF THE AMENDED COMPLAINT OR THE FILING OF A SEPARATE ACTION OR ACTIONS
HEREINABOVE SET FORTH, SHALL CONTINUE UNTIL SIX MONTHS AFTER THE
DETERMINATION ON APPEAL AS TO THE SUFFICIENCY OF THE FIRST COUNT HAS
BECOME FINAL." 
..END :









SHELLEY V. KRAEMER, 334 U.S. 1 


ARGUED JANUARY 15-16, 1948.  - DECIDED MAY 3, 1948.  - 355 MO. 814, 198
S.W.2D 679, AND 316 MICH. 614, 25 N.W.2D 638, REVERSED. 


PRIVATE AGREEMENTS TO EXCLUDE PERSONS OF DESIGNATED RACE OR COLOR FROM
THE USE OR OCCUPANCY OF REAL ESTATE FOR RESIDENTIAL PURPOSES DO NOT
VIOLATE THE FOURTEENTH AMENDMENT; BUT IT IS VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT FOR STATE COURTS TO
ENFORCE THEM.  CORRIGAN V. BUCKLEY, 271 U.S. 323, DISTINGUISHED.  PP. 8
23. 

(A)  SUCH PRIVATE AGREEMENTS STANDING ALONE DO NOT VIOLATE ANY RIGHTS
GUARANTEED BY THE FOURTEENTH AMENDMENT.  PP. 12-13. 

(B)  THE ACTIONS OF STATE COURTS AND JUDICIAL OFFICERS IN THEIR
OFFICIAL CAPACITIES ARE ACTIONS OF THE STATES WITHIN THE MEANING OF THE
FOURTEENTH AMENDMENT.  PP. 14-18. 

(C)  IN GRANTING JUDICIAL ENFORCEMENT OF SUCH PRIVATE AGREEMENTS IN
THESE CASES, THE STATES ACTED TO DENY PETITIONERS THE EQUAL PROTECTION
OF THE LAWS, CONTRARY TO THE FOURTEENTH AMENDMENT.  PP. 18-23. 

(D)  THE FACT THAT STATE COURTS STAND READY TO ENFORCE RESTRICTIVE
COVENANTS EXCLUDING WHITE PERSONS FROM THE OWNERSHIP OR OCCUPANCY OF
PROPERTY COVERED BY THEM DOES NOT PREVENT THE ENFORCEMENT OF COVENANTS
EXCLUDING COLORED PERSONS FROM CONSTITUTING A DENIAL OF EQUAL
PROTECTION OF THE LAWS, SINCE THE RIGHTS CREATED BY SEC. 1 OF THE
FOURTEENTH AMENDMENT ARE GUARANTEED TO THE INDIVIDUAL.  PP. 21-22. 

(E)  DENIAL OF ACCESS TO THE COURTS TO ENFORCE SUCH RESTRICTIVE
COVENANTS DOES NOT DENY EQUAL PROTECTION OF THE LAWS TO THE PARTIES TO
SUCH AGREEMENTS.  P. 22. 

SHELLEY ET UX. V. KRAEMER ET UX. 

NO. 72.  CERTIORARI TO THE SUPREME COURT OF MISSOURI.* 

*TOGETHER WITH NO. 87, MCGHEE ET UX. V. SIPES ET AL., ON CERTIORARI
TO THE SUPREME COURT OF MICHIGAN. 

NO. 72.  THE SUPREME COURT OF MISSOURI REVERSED A JUDGMENT OF A STATE
TRIAL COURT DENYING ENFORCEMENT OF A PRIVATE AGREEMENT RESTRICTING THE
USE OR OCCUPANCY OF CERTAIN REAL ESTATE TO PERSONS OF THE CAUCASIAN
RACE.  355 MO. 814, 198 S.W.2D 679.  THIS COURT GRANTED CERTIORARI. 
331 U.S. 803.  REVERSED, P. 23. 

NO. 87.  THE SUPREME COURT OF MICHIGAN AFFIRMED A JUDGMENT OF A STATE
TRIAL COURT ENJOINING VIOLATION OF A PRIVATE AGREEMENT RESTRICTING THE
USE OR OCCUPANCY OF CERTAIN REAL ESTATE TO PERSONS OF THE CAUCASIAN
RACE.  316 MICH. 614, 25 N.W.2D 638.  THIS COURT GRANTED CERTIORARI. 
331 U.S. 804.  REVERSED, P. 23. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT FOR OUR CONSIDERATION QUESTIONS RELATING TO THE
VALIDITY OF COURT ENFORCEMENT OF PRIVATE AGREEMENTS, GENERALLY
DESCRIBED AS RESTRICTIVE COVENANTS, WHICH HAVE AS THEIR PURPOSE THE
EXCLUSION OF PERSONS OF DESIGNATED RACE OR COLOR FROM THE OWNERSHIP OR
OCCUPANCY OF REAL PROPERTY.  BASIC CONSTITUTIONAL ISSUES OF OBVIOUS
IMPORTANCE HAVE BEEN RAISED. 

THE FIRST OF THESE CASES COMES TO THIS COURT ON CERTIORARI TO THE
SUPREME COURT OF MISSOURI.  ON FEBRUARY 16, 1911, THIRTY OUT OF A TOTAL
OF THIRTY-NINE OWNERS OF PROPERTY FRONTING BOTH SIDES OF LABADIE AVENUE
BETWEEN TAYLOR AVENUE AND CORA AVENUE IN THE CITY OF ST. LOUIS, SIGNED
AN AGREEMENT, WHICH WAS SUBSEQUENTLY RECORDED, PROVIDING IN PART: 

"  ...  THE SAID PROPERTY IS HEREBY RESTRICTED TO THE USE AND
OCCUPANCY FOR THE TERM OF FIFTY (50) YEARS FROM THIS DATE, SO THAT IT
SHALL BE A CONDITION ALL THE TIME AND WHETHER RECITED AND REFERRED TO
AS N NOT IN SUBSEQUENT CONVEYANCES AND SHALL ATTACH TO THE LAND AS A
CONDITION PRECEDENT TO THE SALE OF THE SAME, THAT HEREAFTER NO PART OF
SAID PROPERTY OR ANY PORTION THEREOF SHALL BE, FOR SAID TERM OF FIFTY
YEARS, OCCUPIED BY ANY PERSON NOT OF THE CAUCASIAN RACE, IT BEING
INTENDED HEREBY TO RESTRICT THE USE OF SAID PROPERTY FOR SAID PERIOD OF
TIME AGAINST THE OCCUPANCY AS OWNERS OR TENANTS OF ANY PORTION OF SAID
PROPERTY FOR RESIDENT OR OTHER PURPOSE BY PEOPLE OF THE NEGRO OR
MONGOLIAN RACE." 

THE ENTIRE DISTRICT DESCRIBED IN THE AGREEMENT INCLUDED FIFTY-SEVEN
PARCELS OF LAND.  THE THIRTY OWNERS WHO SIGNED THE AGREEMENT HELD TITLE
TO FORTY-SEVEN PARCELS, INCLUDING THE PARTICULAR PARCEL INVOLVED IN
THIS CASE.  AT THE TIME THE AGREEMENT WAS SIGNED, FIVE OF THE PARCELS
IN THE DISTRICT WERE OWNED BY NEGROES.  ONE OF THOSE HAD BEEN OCCUPIED
BY NEGRO FAMILIES SINCE 1882, NEARLY THIRTY YEARS BEFORE THE
RESTRICTIVE AGREEMENT WAS EXECUTED.  THE TRIAL COURT FOUND THAT OWNERS
OF SEVEN OUT OF NINE HOMES ON THE SOUTH SIDE OF LABADIE AVENUE, WITHIN
THE RESTRICTED DISTRICT AND "IN THE IMMEDIATE VICINITY" OF THE PREMISES
IN QUESTION, HAD FAILED TO SIGN THE RESTRICTIVE AGREEMENT IN 1911.  AT
THE TIME THIS ACTION WAS BROUGHT, FOUR OF THE PREMISES WERE OCCUPIED BY
NEGROES, AND HAD BEEN SO OCCUPIED FOR PERIODS RANGING FROM TWENTY-THREE
TO SIXTY-THREE YEARS.  A FIFTH PARCEL HAD BEEN OCCUPIED BY NEGROES
UNTIL A YEAR BEFORE THIS SUIT WAS INSTITUTED. 

ON AUGUST 11, 1945, PURSUANT TO A CONTRACT OF SALE, PETITIONERS
SHELLEY, WHO ARE NEGROES, FOR VALUABLE CONSIDERATION RECEIVED FROM ONE
FITZGERALD A WARRANTY DEED TO THE PARCEL IN QUESTION.  FN1  THE TRIAL
COURT FOUND THAT PETITIONERS HAD NO ACTUAL KNOWLEDGE OF THE RESTRICTIVE
AGREEMENT AT THE TIME OF THE PURCHASE. 

ON OCTOBER 9, 1945, RESPONDENTS, AS OWNERS OF OTHER PROPERTY SUBJECT
TO THE TERMS OF THE RESTRICTIVE COVENANT, BROUGHT SUIT IN THE CIRCUIT
COURT OF THE CITY OF ST. LOUIS PRAYING THAT PETITIONERS SHELLEY BE
RESTRAINED FROM TAKING POSSESSION OF THE PROPERTY AND THAT JUDGMENT BE
ENTERED DIVESTING TITLE OUT OF PETITIONERS SHELLEY AND REVESTING TITLE
IN THE IMMEDIATE GRANTOR OR IN SUCH OTHER PERSON AS THE COURT SHOULD
DIRECT.  THE TRIAL COURT DENIED THE REQUESTED RELIEF ON THE GROUND THAT
THE RESTRICTIVE AGREEMENT, UPON WHICH RESPONDENTS BASED THEIR ACTION,
HAD NEVER BECOME FINAL AND COMPLETE BECAUSE IT WAS THE INTENTION OF THE
PARTIES TO THAT AGREEMENT THAT IT WAS NOT TO BECOME EFFECTIVE UNTIL
SIGNED BY ALL PROPERTY OWNERS IN THE DISTRICT, AND SIGNATURES OF ALL
THE OWNERS HAD NEVER BEEN OBTAINED. 

THE SUPREME COURT OF MISSOURI SITTING EN BANC REVERSED AND DIRECTED
THE TRIAL COURT TO GRANT THE RELIEF FOR WHICH RESPONDENTS HAD PRAYED. 
THAT COURT HELD THE AGREEMENT EFFECTIVE AND CONCLUDED THAT ENFORCEMENT
OF ITS PROVISIONS VIOLATED NO RIGHTS GUARANTEED TO PETITIONERS BY THE
FEDERAL CONSTITUTION.  FN2  AT THE TIME THE COURT RENDERED ITS
DECISION, PETITIONERS WERE OCCUPYING THE PROPERTY IN QUESTION. 

THE SECOND OF THE CASES UNDER CONSIDERATION COMES TO THIS COURT FROM
THE SUPREME COURT OF MICHIGAN.  THE CIRCUMSTANCES PRESENTED DO NOT
DIFFER MATERIALLY FROM THE MISSOURI CASE.  IN JUNE, 1934, ONE FERGUSON
AND HIS WIFE, WHO THEN OWNED THE PROPERTY LOCATED IN THE CITY OF
DETROIT WHICH IS INVOLVED IN THIS CASE, EXECUTED A CONTRACT PROVIDING
IN PART: 

"THIS PROPERTY SHALL NOT BE USED OR OCCUPIED BY ANY PERSON OR PERSONS
EXCEPT THOSE OF THE CAUCASIAN RACE. 

"IT IS FURTHER AGREED THAT THIS RESTRICTION SHALL NOT BE EFFECTIVE
UNLESS AT LEAST EIGHTY PERCENT OF THE PROPERTY FRONTING ON BOTH SIDES
OF THE STREET IN THE BLOCK WHERE OUR LAND IS LOCATED IS SUBJECTED TO
THIS OR A SIMILAR RESTRICTION." 

THE AGREEMENT PROVIDED THAT THE RESTRICTIONS WERE TO REMAIN IN EFFECT
UNTIL JANUARY 1, 1960.  THE CONTRACT WAS SUBSEQUENTLY RECORDED; AND
SIMILAR AGREEMENTS WERE EXECUTED WITH RESPECT TO EIGHTY PERCENT OF THE
LOTS IN THE BLOCK IN WHICH THE PROPERTY IN QUESTION IS SITUATED. 

BY DEED DATED NOVEMBER 30, 1944, PETITIONERS, WHO WERE FOUND BY THE
TRIAL COURT TO BE NEGROES, ACQUIRED TITLE TO THE PROPERTY AND THEREUPON
ENTERED INTO ITS OCCUPANCY.  ON JANUARY 30, 1945, RESPONDENTS, AS
OWNERS OF PROPERTY SUBJECT TO THE TERMS OF THE RESTRICTIVE AGREEMENT,
BROUGHT SUIT AGAINST PETITIONERS IN THE CIRCUIT COURT OF WAYNE COUNTY. 
AFTER A HEARING, THE COURT ENTERED A DECREE DIRECTING PETITIONERS TO
MOVE FROM THE PROPERTY WITHIN NINETY DAYS.  PETITIONERS WERE FURTHER
ENJOINED AND RESTRAINED FROM USING OR OCCUPYING THE PREMISES IN THE
FUTURE.  ON APPEAL, THE SUPREME COURT OF MICHIGAN AFFIRMED, DECIDING
ADVERSELY TO PETITIONERS' CONTENTIONS THAT THEY HAD BEEN DENIED RIGHTS
PROTECTED BY THE FOURTEENTH AMENDMENT.  FN3 

PETITIONERS HAVE PLACED PRIMARY RELIANCE ON THEIR CONTENTIONS, FIRST
RAISED IN THE STATE COURTS, THAT JUDICIAL ENFORCEMENT OF THE
RESTRICTIVE AGREEMENTS IN THESE CASES HAS VIOLATED RIGHTS GUARANTEED TO
PETITIONERS BY THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION AND
ACTS OF CONGRESS PASSED PURSUANT TO THAT AMENDMENT.  FN4  SPECIFICALLY,
PETITIONERS URGE THAT THEY HAVE BEEN DENIED THE EQUAL PROTECTION OF THE
LAWS, DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW, AND HAVE BEEN
DENIED PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES.  WE
PASS TO A CONSIDERATION OF THOSE ISSUES. 

  I. 

WHETHER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
INHIBITS JUDICIAL ENFORCEMENT BY STATE COURTS OF RESTRICTIVE COVENANTS
BASED ON RACE OR COLOR IS A QUESTION WHICH THIS COURT HAS NOT
HERETOFORE BEEN CALLED UPON TO CONSIDER.  ONLY TWO CASES HAVE BEEN
DECIDED BY THIS COURT WHICH IN ANY WAY HAVE INVOLVED THE ENFORCEMENT OF
SUCH AGREEMENTS.  THE FIRST OF THESE WAS THE CASE OF CORRIGAN V.
BUCKLEY, 271 U.S. 323(1926).  THERE, SUIT WAS BROUGHT IN THE COURTS OF
THE DISTRICT OF COLUMBIA TO ENJOIN A THREATENED VIOLATION OF CERTAIN
RESTRICTIVE COVENANTS RELATING TO LANDS SITUATED IN THE CITY OF
WASHINGTON.  RELIEF WAS GRANTED, AND THE CASE WAS BROUGHT HERE ON
APPEAL.  IT IS APPARENT THAT THAT CASE, WHICH HAD ORIGINATED IN THE
FEDERAL COURTS AND INVOLVED THE ENFORCEMENT OF COVENANTS ON LAND
LOCATED IN THE DISTRICT OF COLUMBIA, COULD PRESENT NO ISSUES UNDER THE
FOURTEENTH AMENDMENT; FOR THAT AMENDMENT BY ITS TERMS APPLIES ONLY TO
THE STATES.  NOR WAS THE QUESTION OF THE VALIDITY OF COURT ENFORCEMENT
OF THE RESTRICTIVE COVENANTS UNDER THE FIFTH AMENDMENT PROPERLY BEFORE
THE COURT, AS THE OPINION OF THIS COURT SPECIFICALLY RECOGNIZES.  FN5
THE ONLY CONSTITUTIONAL ISSUE WHICH THE APPELLANTS HAD RAISED IN THE
LOWER COURTS, AND HENCE THE ONLY CONSTITUTIONAL ISSUE BEFORE THIS COURT
ON APPEAL, WAS THE VALIDITY OF THE COVENANT AGREEMENTS AS SUCH.  THIS
COURT CONCLUDED THAT SINCE THE INHIBITIONS OF THE CONSTITUTIONAL
PROVISIONS INVOKED APPLY ONLY TO GOVERNMENTAL ACTION, AS CONTRASTED TO
ACTION OF PRIVATE INDIVIDUALS, THERE WAS NO SHOWING THAT THE COVENANTS,
WHICH WERE SIMPLY AGREEMENTS BETWEEN PRIVATE PROPERTY OWNERS, WERE
INVALID.  ACCORDINGLY, THE APPEAL WAS DISMISSED FOR WANT OF A
SUBSTANTIAL QUESTION.  NOTHING IN THE OPINION OF THIS COURT, THEREFORE,
MAY PROPERLY BE REGARDED AS AN ADJUDICATION ON THE MERITS OF THE
CONSTITUTIONAL ISSUES PRESENTED BY THESE CASES, WHICH RAISE THE
QUESTION OF THE VALIDITY, NOT OF THE PRIVATE AGREEMENTS AS SUCH, BUT OF
THE JUDICIAL ENFORCEMENT OF THOSE AGREEMENTS. 

THE SECOND OF THE CASES INVOLVING RACIAL RESTRICTIVE COVENANTS WAS
HANSBERRY V. LEE, 311 U.S. 32(1940).  IN THAT CASE, PETITIONERS, WHITE
PROPERTY OWNERS, WERE ENJOINED BY THE STATE COURTS FROM VIOLATING THE
TERMS OF A RESTRICTIVE AGREEMENT.  THE STATE SUPREME COURT HAD HELD
PETITIONERS BOUND BY AN EARLIER JUDICIAL DETERMINATION, IN LITIGATION
IN WHICH PETITIONERS WERE NOT PARTIES, UPHOLDING THE VALIDITY OF THE
RESTRICTIVE AGREEMENT, ALTHOUGH, IN FACT, THE AGREEMENT HAD NOT BEEN
SIGNED BY THE NUMBER OF OWNERS NECESSARY TO MAKE IT EFFECTIVE UNDER
STATE LAW.  THIS COURT REVERSED THE JUDGMENT OF THE STATE SUPREME COURT
UPON THE GROUND THAT PETITIONERS HAD BEEN DENIED DUE PROCESS OF LAW IN
BEING HELD ESTOPPED TO CHALLENGE THE VALIDITY OF THE AGREEMENT ON THE
THEORY, ACCEPTED BY THE STATE COURT, THAT THE EARLIER LITIGATION, IN
WHICH PETITIONERS DID NOT PARTICIPATE, WAS IN THE NATURE OF A CLASS
SUIT.  IN ARRIVING AT ITS RESULT, THIS COURT DID NOT REACH THE ISSUES
PRESENTED BY THE CASES NOW UNDER CONSIDERATION. 

IT IS WELL, AT THE OUTSET, TO SCRUTINIZE THE TERMS OF THE RESTRICTIVE
AGREEMENTS INVOLVED IN THESE CASES.  IN THE MISSOURI CASE, THE COVENANT
DECLARES THAT NO PART OF THE AFFECTED PROPERTY SHALL BE "OCCUPIED BY
ANY PERSON NOT OF THE CAUCASIAN RACE, IT BEING INTENDED HEREBY TO
RESTRICT THE USE OF SAID PROPERTY  ...  AGAINST THE OCCUPANCY AS OWNERS
OR TENANTS OF ANY PORTION OF SAID PROPERTY FOR RESIDENT OR OTHER
PURPOSE BY PEOPLE OF THE NEGRO OR MONGOLIAN RACE."  NOT ONLY DOES THE
RESTRICTION SEEK TO PROSCRIBE USE AND OCCUPANCY OF THE AFFECTED
PROPERTIES BY MEMBERS OF THE EXCLUDED CLASS, BUT AS CONTRUED BY THE
MISSOURI COURTS, THE AGREEMENTS REQUIRES THAT TITLE OF ANY PERSON WHO
USES HIS PROPERTY IN VIOLATION OF THE RESTRICTION SHALL BE DIVESTED. 
THE RESTRICTION OF THE COVENANT IN THE MICHIGAN CASE SEEKS TO BAR
OCCUPANCY BY PERSONS OF THE EXCLUDED CLASS.  IT PROVIDES THAT "THIS
PROPERTY SHALL NOT BE USED OR OCCUPIED BY ANY PERSON OR PERSONS EXCEPT
THOSE OF THE CAUCASIAN RACE." 

IT SHOULD BE OBSERVED THAT THESE COVENANTS DO NOT SEEK TO PROSCRIBE
ANY PARTICULAR USE OF THE AFFECTED PROPERTIES.  USE OF THE PROPERTIES
FOR RESIDENTIAL OCCUPANCY, AS SUCH, IS NOT FORBIDDEN.  THE RESTRICTIONS
OF THESE AGREEMENTS, RATHER, ARE DIRECTED TOWARD A DESIGNATED CLASS OF
PERSONS AND SEEK TO DETERMINE WHO MAY AND WHO MAY NOT OWN OR MAKE USE
OF THE PROPERTIES FOR RESIDENTIAL PURPOSES.  THE EXCLUDED CLASS IS
DEFINED WHOLLY IN TERMS OF RACE OR COLOR; "SIMPLY THAT AND NOTHING
MORE."  FN6 

IT CANNOT BE DOUBTED THAT AMONG THE CIVIL RIGHTS INTENDED TO BE
PROTECTED FROM DISCRIMINATORY STATE ACTION BY THE FOURTEENTH AMENDMENT
ARE THE RIGHTS TO ACQUIRE, ENJOY, OWN AND DISPOSE OF PROPERTY. 
EQUALITY IN THE ENJOYMENT OF PROPERTY RIGHTS WAS REGARDED BY THE
FRAMERS OF THAT AMENDMENT AS AN ESSENTIAL PRE-CONDITION TO THE
REALIZATION OF OTHER BASIC CIVIL RIGHTS AND LIBERTIES WHICH THE
AMENDMENT WAS INTENDED TO GUARANTEE.  FN7  THUS, SEC. 1978 OF THE
REVISED STATUTES, DERIVED FROM SEC. 1 OF THE CIVIL RIGHTS ACT OF 1866
WHICH WAS ENACTED BY CONGRESS WHILE THE FOURTEENTH AMENDMENT WAS ALSO
UNDER CONSIDERATION,  FN8  PROVIDES: 

"ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT, IN
EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS THEREOF TO
INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL
PROPERTY."  FN9 

THIS COURT HAS GIVEN SPECIFIC RECOGNITION TO THE SAME PRINCIPLE. 
BUCHANAN V. WARLEY, 245 U.S. 60(1917). 

IT IS LIKEWISE CLEAR THAT RESTRICTIONS ON THE RIGHT OF OCCUPANCY OF
THE SORT SOUGHT TO BE CREATED BY THE PRIVATE AGREEMENTS IN THESE CASES
COULD NOT BE SQUARED WITH THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT
IF IMPOSED BY STATE STATUTE OR LOCAL ORDINANCE.  WE DO NOT UNDERSTAND
RESPONDENTS TO URGE THE CONTRARY.  IN THE CASE OF BUCHANAN V. WARLEY,
SUPRA, A UNANIMOUS COURT DECLARED UNCONSTITUTIONAL THE PROVISIONS OF A
CITY ORDINANCE WHICH DENIED TO COLORED PERSONS THE RIGHT TO OCCUPY
HOUSES IN BLOCKS IN WHICH THE GREATER NUMBER OF HOUSES WERE OCCUPIED BY
WHITE PERSONS, AND IMPOSED SIMILAR RESTRICTIONS ON WHITE PERSONS WITH
RESPECT TO BLOCKS IN WHICH THE GREATER NUMBER OF HOUSES WERE OCCUPIED
BY COLORED PERSONS.  DURING THE COURSE OF THE OPINION IN THAT CASE,
THIS COURT STATED:  "THE FOURTEENTH AMENDMENT AND THESE STATUTES
ENACTED IN FURTHERANCE OF ITS PURPOSE OPERATE TO QUALIFY AND ENTITLE A
COLORED MAN TO ACQUIRE PROPERTY WITHOUT STATE LEGISLATION
DISCRIMINATING AGAINST HIM SOLELY BECAUSE OF COLOR."  FN10    IN HARMON
V. TYLER, 273 U.S. 668(1927), A UNANIMOUS COURT, ON THE AUTHORITY OF
BUCHANAN V. WARLEY, SUPRA, DECLARED INVALID AN ORDINANCE WHICH FORBADE
ANY NEGRO TO ESTABLISH A HOME ON ANY PROPERTY IN A WHITE COMMUNITY OR
ANY WHITE PERSON TO ESTABLISH A HOME IN A NEGRO COMMUNITY, "EXCEPT ON
THE WRITTEN CONSENT OF A MAJORITY OF THE PERSONS OF THE OPPOSITE RACE
INHABITING SUCH COMMUNITY OR PORTION OF THE CITY TO BE AFFECTED." 

THE PRECISE QUESTION BEFORE THIS COURT IN BOTH THE BUCHANAN AND
HARMON CASES INVOLVED THE RIGHTS OF WHITE SELLERS TO DISPOSE OF THEIR
PROPERTIES FREE FROM RESTRICTIONS AS TO POTENTIAL PURCHASERS BASED ON
CONSIDERATIONS OF RACE OR COLOR.  BUT THAT SUCH LEGISLATION IS ALSO
OFFENSIVE TO THE RIGHTS OF THOSE DESIRING TO ACQUIRE AND OCCUPY
PROPERTY AND BARRED ON GROUNDS OF RACE OR COLOR IS CLEAR, NOT ONLY FROM
THE LANGUAGE OF THE OPINION IN BUCHANAN V. WARLEY, SUPRA, BUT FROM THIS
COURT'S DISPOSITION OF THE CASE OF RICHMOND V. DEANS, 281 U.S.
704(1930).  THERE, A NEGRO, BARRED FROM THE OCCUPANCY OF CERTAIN
PROPERTY BY THE TERMS OF AN ORDINANCE SIMILAR TO THAT IN THE BUCHANAN
CASE, SOUGHT INJUNCTIVE RELIEF IN THE FEDERAL COURTS TO ENJOIN THE
ENFORCEMENT OF THE ORDINANCE ON THE GROUNDS THAT ITS PROVISIONS
VIOLATED THE TERMS OF THE FOURTEENTH AMENDMENT.  SUCH RELIEF WAS
GRANTED, AND THIS COURT AFFIRMED, FINDING THE CITATION OF BUCHANAN V.
WARLEY, SUPRA, AND HARMON V. TYLER, SUPRA, SUFFICIENT TO SUPPORT ITS
JUDGMENT.  FN11 

BUT THE PRESENT CASES, UNLIKE THOSE JUST DISCUSSED, DO NOT INVOLVE
ACTION BY STATE LEGISLATURES OR CITY COUNCILS.  HERE THE PARTICULAR
PATTERNS OF DISCRIMINATION AND THE AREAS IN WHICH THE RESTRICTIONS ARE
TO OPERATE, ARE DETERMINED, IN THE FIRST INSTANCE, BY THE TERMS OF
AGREEMENTS AMONG PRIVATE INDIVIDUALS.  PARTICIPATION OF THE STATE
CONSISTS IN THE ENFORCEMENT OF THE RESTRICTIONS SO DEFINED.  THE
CRUCIAL ISSUE WITH WHICH WE ARE HERE CONFRONTED IS WHETHER THIS
DISTINCTION REMOVES THESE CASES FROM THE OPERATION OF THE PROHIBITORY
PROVISIONS OF THE FOURTEENTH AMENDMENT. 

SINCE THE DECISION OF THIS COURT IN THE CIVIL RIGHTS CASES, 109 U.S.
3(1883), 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.  FN12 

WE CONCLUDE, THEREFORE, THAT THE RESTRICTIVE AGREEMENTS STANDING
ALONE CANNOT BE REGARDED AS VIOLATIVE 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.  CF. CORRIGAN
V. BUCKLEY, SUPRA. 

BUT HERE THERE WAS MORE.  THESE ARE CASES IN WHICH THE PURPOSES OF
THE AGREEMENTS WERE SECURED ONLY BY JUDICIAL ENFORCEMENT BY STATE
COURTS OF THE RESTRICTIVE TERMS OF THE AGREEMENTS.  THE RESPONDENTS
URGE THAT JUDICIAL ENFORCEMENT OF PRIVATE AGREEMENTS DOES NOT AMOUNT TO
STATE ACTION; OR, IN ANY EVENT, THE PARTICIPATION OF THE STATE IS SO
ATTENUATED IN CHARACTER AS NOT TO AMOUNT TO STATE ACTION WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT.  FINALLY, IT IS SUGGESTED, EVEN IF
THE STATES IN THESE CASES MAY BE DEEMED TO HAVE ACTED IN THE
CONSTITUTIONAL SENSE, THEIR ACTION DID NOT DEPRIVE PETITIONERS OF
RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT.  WE MOVE TO A
CONSIDERATION OF THESE MATTERS. 

                           II. 

THAT THE ACTION OF STATE COURTS AND JUDICIAL OFFICERS IN THEIR
OFFICIAL CAPACITIES IS TO BE REGARDED AS ACTION OF THE STATE WITHIN THE
MEANING OF THE FOURTEENTH AMENDMENT, IS A PROPOSITION WHICH HAS LONG
BEEN ESTABLISHED BY DECISIONS OF THIS COURT.  THAT PRINCIPLE WAS GIVEN
EXPRESSION IN THE EARLIEST CASES INVOLVING THE CONSTRUCTION OF THE
TERMS OF THE FOURTEENTH AMENDMENT.  THUS, IN VIRGINIA V. RIVES, 100
U.S. 313, 318(1880), THIS COURT STATED:  "IT IS DOUBTLESS TRUE THAT A
STATE MAY ACT THROUGH DIFFERENT AGENCIES,  - EITHER BY ITS LEGISLATIVE,
ITS EXECUTIVE, OR ITS JUDICIAL AUTHORITIES; AND THE PROHIBITIONS OF THE
AMENDMENT EXTEND TO ALL ACTION OF THE STATE DENYING EQUAL PROTECTION OF
THE LAWS, WHETHER IT BE ACTION BY ONE OF THESE AGENCIES OR BY
ANOTHER."  IN EX PARTE VIGINIA, 100 U.S. 339, 347(1880), THE COURT
OBSERVED:  "A STATE ACTS BY ITS LEGISLATIVE, ITS EXECUTIVE, OR ITS
JUDICIAL AUTHORITIES.  IT CAN ACT IN NO OTHER WAY."  IN THE CIVIL
RIGHTS CASES, 109 U.S. 3, 11, 17(1883), THIS COURT POINTED OUT THAT THE
AMENDMENT MAKES VOID "STATE ACTION OF EVERY KIND" WHICH IS INCONSISTENT
WITH THE GUARANTIES THEREIN CONTAINED, AND EXTENDS TO MANIFESTATIONS OF
"STATE AUTHORITY IN THE SHAPE OF LAWS, CUSTOMS, OR JUDICIAL OR
EXECUTIVE PROCEEDINGS."  LANGUAGE TO LIKE EFFECT IS EMPLOYED NO LESS
THAN EIGHTEEN TIMES DURING THE COURSE OF THAT OPINION.  FN13 

SIMILAR EXPRESSIONS, GIVING SPECIFIC RECOGNITION TO THE FACT THAT
JUDICIAL ACTION IS TO BE REGARDED AS ACTION OF THE STATE FOR THE
PURPOSES OF THE FOURTEENTH AMENDMENT, ARE TO BE FOUND IN NUMEROUS CASES
WHICH HAVE BEEN MORE RECENTLY DECIDED.  IN TWINING V. NEW JERSEY, 211
U.S. 78, 90-91(1908), THE COURT SAID:  "THE JUDICIAL ACT OF THE HIGHEST
COURT OF THE STATE, IN AUTHORITATIVELY CONSTRUING AND ENFORCING ITS
LAWS, IS THE ACT OF THE STATE."  IN BRINKERHOFF-FARIS TRUST & SAVINGS
CO. V. HILL, 281 U.S. 673, 680(1930), THE COURT, THROUGH MR. JUSTICE
BRANDEIS, STATED:  "THE FEDERAL GUARANTY OF DUE PROCESS EXTENDS TO
STATE ACTION THROUGH ITS JUDICIAL AS WELL AS THROUGH ITS LEGISLATIVE,
EXECUTIVE OR ADMINISTRATIVE BRANCH OF GOVERNMENT."  FURTHER EXAMPLES OF
SUCH DECLARATIONS IN THE OPINIONS OF THIS COURT ARE NOT LACKING.  FN14 

ONE OF THE EARLIEST APPLICATIONS OF THE PROHIBITIONS CONTAINED IN THE
FOURTEENTH AMENDMENT TO ACTION OF STATE JUDICIAL OFFICIALS OCCURRED IN
CASES IN WHICH NEGROES HAD BEEN EXCLUDED FROM JURY SERVICE IN CRIMINAL
PROSECUTIONS BY REASON OF THEIR RACE OR COLOR.  THESE CASES
DEMONSTRATE, ALSO, THE EARLY RECOGNITION BY THIS COURT THAT STATE
ACTION IN VIOLATION OF THE AMENDMENT'S PROVISIONS IS EQUALLY REPUGNANT
TO THE CONSTITUTIONAL COMMANDS WHETHER DIRECTED BY STATE STATUTE OR
TAKEN BY A JUDICIAL OFFICIAL IN THE ABSENCE OF STATUTE.  THUS, IN
STRAUDER V. WEST VIRGINIA, 100 U.S. 303(1880), THIS COURT DECLARED
INVALID A STATE STATUTE RESTRICTING JURY SERVICE TO WHITE PERSONS AS
AMOUNTING TO A DENIAL OF THE EQUAL PROTECTION OF THE LAWS TO THE
COLORED DEFENDANT IN THAT CASE.  IN THE SAME VOLUME OF THE REPORTS, THE
COURT IN EX PARTE VIRGINIA, SUPRA, HELD THAT A SIMILAR DISCRIMINATION
IMPOSED BY THE ACTION OF A STATE JUDGE DENIED RIGHTS PROTECTED BY THE
AMENDMENT, DESPITE THE FACT THAT THE LANGUAGE OF THE STATE STATUTE
RELATING TO JURY SERVICE CONTAINED NO SUCH RESTRICTIONS. 

THE ACTION OF STATE COURTS IN IMPOSING PENALTIES OR DEPRIVING PARTIES
OF OTHER SUBSTANTIVE RIGHTS WITHOUT PROVIDING ADEQUATE NOTICE AND
OPPORTUNITY TO DEFEND, HAS, OF COURSE, LONG BEEN REGARDED AS A DENIAL
OF THE DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT. 
BRINKERHOFF-FARIS TRUST & SAVINGS CO. V. HILL, SUPRA.  CF. PENNOYER V.
NEFF, 95 U.S. 714(1878).  FN15 

IN NUMEROUS CASES, THIS COURT HAS REVERSED CRIMINAL CONVICTIONS IN
STATE COURTS FOR FAILURE OF THOSE COURTS TO PROVIDE THE ESSENTIAL
INGREDIENTS OF A FAIR HEARING.  THUS IT HAS BEEN HELD THAT CONVICTIONS
OBTAINED IN STATE COURTS UNDER THE DOMINATION OF A MOB ARE VOID.  MOORE
V. DEMPSEY, 261 U.S. 86(1923).  AND SEE FRANK V. MANGUM, 237 U.S.
309(1915).  CONVICTIONS OBTAINED BY COERCED CONFESSIONS,  FN16  BY THE
USE OF PERJURED TESTIMONY KNOWN BY THE PROSECUTION TO BE SUCH,  FN17 OR
WITHOUT THE EFFECTIVE ASSISTANCE OF COUNSEL,  FN18  HAVE ALSO BEEN HELD
TO BE EXERTIONS OF STATE AUTHORITY IN CONFLICT WITH THE FUNDAMENTAL
RIGHTS PROTECTED BY THE FOURTEENTH AMENDMENT. 

BUT THE EXAMPLES OF STATE JUDICIAL ACTION WHICH HAVE BEEN HELD BY
THIS COURT TO VIOLATE THE AMENDMENT'S COMMANDS ARE NOT RESTRICTED TO
SITUATIONS IN WHICH THE JUDICIAL PROCEEDINGS WERE FOUND IN SOME MANNER
TO BE PROCEDURALLY UNFAIR.  IT HAS BEEN RECOGNIZED THAT THE ACTION OF
STATE COURTS IN ENFORCING A SUBSTANTIVE COMMON-LAW RULE FORMULATED BY
THOSE COURTS, MAY RESULT IN THE DENIAL OF RIGHTS GUARANTEED BY THE
FOURTEENTH AMENDMENT, EVEN THOUGH THE JUDICIAL PROCEEDINGS IN SUCH
CASES MAY HAVE BEEN IN COMPLETE ACCORD WITH THE MOST RIGOROUS
CONCEPTIONS OF PROCEDURAL DUE PROCESS.  FN9  THUS, IN AMERICAN
FEDERATION OF LABOR V. SWING, 312 U.S. 321(1941), ENFORCEMENT BY STATE
COURTS OF THE COMMON-LAW POLICY OF THE STATE, WHICH RESULTED IN THE
RESTRAINING OF PEACEFUL PICKETING, WAS HELD TO BE STATE ACTION OF THE
SORT PROHIBITED BY THE AMENDMENT'S GUARANTIES OF FREEDOM OF
DISCUSSION.  FN20  IN CANTWELL V. CONNECTICUT, 310 U.S. 296(1940), A
CONVICTION IN A STATE COURT OF THE COMMON-LAW CRIME OF BREACH OF THE
PEACE WAS, UNDER THE CIRCUMSTANCES OF THE CASE, FOUND TO BE A VIOLATION
OF THE AMENDMENT'S COMMANDS RELATING TO FREEDOM OF RELIGION.  IN
BRIDGES V. CALIFORNIA, 314 U.S. 252(1941), ENFORCEMENT OF THE STATE'S
COMMON-LAW RULE RELATING TO CONTEMPTS BY PUBLICATION WAS HELD TO BE
STATE ACTION INCONSISTENT WITH THE PROHIBITIONS OF THE FOURTEENTH
AMENDMENT.  FN21  AND CF. CHICAGO, BURLINGTON AND QUINCY R. CO. V.
CHICAGO, 166 U.S. 226(1897). 

THE SHORT OF THE MATTER IS THAT FROM THE TIME OF THE ADOPTION OF THE
FOURTEENTH AMENDMENT UNTIL THE PRESENT, IT HAS BEEN THE CONSISTENT
RULING OF THIS COURT THAT THE ACTION OF THE STATES TO WHICH THE
AMENDMENT HAS REFERENCE INCLUDES ACTION OF STATE COURTS AND STATE
JUDICIAL OFFICIALS.  ALTHOUGH, IN CONSTRUING THE TERMS OF THE
FOURTEENTH AMENDMENT, DIFFERENCES HAVE FROM TIME TO TIME BEEN EXPRESSED
AS TO WHETHER PARTICULAR TYPES OF STATE ACTION MAY BE SAID TO OFFEND
THE AMENDMENT'S PROHIBITORY PROVISIONS, IT HAS NEVER BEEN SUGGESTED
THAT STATE COURT ACTION IS IMMUNIZED FROM THE OPERATION OF THOSE
PROVISIONS SIMPLY BECAUSE THE ACT IS THAT OF THE JUDICIAL BRANCH OF THE
STATE GOVERNMENT. 

            III. 

AGAINST THIS BACKGROUND OF JUDICIAL CONSTRUCTION, EXTENDING OVER A
PERIOD OF SOME THREE-QUARTERS OF A CENTURY, WE ARE CALLED UPON TO
CONSIDER WHETHER ENFORCEMENT BY STATE COURTS OF THE RESTRICTIVE
AGREEMENTS IN THESE CASES MAY BE DEEMED TO BE THE ACTS OF THOSE STATES;
AND, IF SO, WHETHER THAT ACTION HAS DENIED THESE PETITIONERS THE EQUAL
PROTECTION OF THE LAWS WHICH THE AMENDMENT WAS INTENDED TO INSURE. 

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.  THE DIFFERENCE BETWEEN JUDICIAL
ENFORCEMENT AND NON-ENFORCEMENT OF THE RESTRICTIVE COVENANTS IS THE
DIFFERENCE TO PETITIONERS BETWEEN BEING DENIED RIGHTS OF PROPERTY
AVAILABLE TO OTHER MEMBERS OF THE COMMUNITY AND BEING ACCORDED FULL
ENJOYMENT OF THOSE RIGHTS ON AN EQUAL FOOTING. 

THE ENFORCEMENT OF THE RESTRICTIVE AGREEMENTS BY THE STATE COURTS IN
THESE CASES WAS DIRECTED PURSUANT TO THE COMMON-LAW POLICY OF THE
STATES AS FORMULATED BY THOSE COURTS IN EARLIER DECISIONS.  FN22  IN
THE MISSOURI CASE, ENFORCEMENT OF THE COVENANT WAS DIRECTED IN THE
FIRST INSTANCE BY THE HIGHEST COURT OF THE STATE AFTER THE TRIAL COURT
HAD DETERMINED THE AGREEMENT TO BE INVALID FOR WANT OF THE REQUISITE
NUMBER OF SIGNATURES.  IN THE MICHIGAN CASE, THE ORDER OF ENFORCEMENT
BY THE TRIAL COURT WAS AFFIRMED BY THE HIGHEST STATE COURT.  FN23  THE
JUDICIAL ACTION IN EACH CASE BEARS THE CLEAR AND UNMISTAKABLE
IMPRIMATUR OF THE STATE.  WE HAVE NOTED THAT PREVIOUS DECISIONS OF THIS
COURT HAVE ESTABLISHED THE PROPOSITION THAT JUDICIAL ACTION IS NOT
IMMUNIZED FROM THE OPERATION OF THE FOURTEENTH AMENDMENT SIMPLY BECAUSE
IT IS TAKEN PURSUANT TO THE STATE'S COMMON-LAW POLICY.  FN24  NOR IS
THE AMENDMENT INEFFECTIVE SIMPLY BECAUSE THE PARTICULAR PATTERN OF
DISCRIMINATION, WHICH THE STATE HAS ENFORCED, WAS DEFINED INITIALLY BY
THE TERMS OF A PRIVATE AGREEMENT.  STATE ACTION, AS THAT PHRASE IS
UNDERSTOOD FOR THE PURPOSES OF THE FOURTEENTH AMENDMENT, REFERS TO
EXERTIONS OF STATE POWER IN ALL FORMS.  AND WHEN THE EFFECT OF THAT
ACTION IS TO DENY RIGHTS SUBJECT TO THE PROTECTION OF THE FOURTEENTH
AMENDMENT, IT IS THE OBLIGATION OF THIS COURT TO ENFORCE THE
CONSTITUTIONAL COMMANDS.    WE HOLD THAT IN GRANTING JUDICIAL
ENFORCEMENT OF THE RESTRICTIVE AGREEMENTS IN THESE CASES, THE STATES
HAVE DENIED PETITIONERS THE EQUAL PROTECTION OF THE LAWS AND THAT,
THEREFORE, THE ACTION OF THE STATE COURTS CANNOT STAND.  WE HAVE NOTED
THAT FREEDOM FROM DISCRIMINATION BY THE STATES IN THE ENJOYMENT OF
PROPERTY RIGHTS WAS AMONG THE BASIC OBJECTIVES SOUGHT TO BE EFFECTUATED
BY THE FRAMERS OF THE FOURTEENTH AMENDMENT.  THAT SUCH DISCRIMINATION
HAS OCCURRED IN THESE CASES IS CLEAR.  BECAUSE OF THE RACE OR COLOR OF
THESE PETITIONERS THEY HAVE BEEN DENIED RIGHTS OF OWNERSHIP OR
OCCUPANCY ENJOYED AS A MATTER OF COURSE BY OTHER CITIZENS OF DIFFERENT
RACE OR COLOR.  FN25  THE FOURTEENTH AMENDMENT DECLARES "THAT ALL
PERSONS, WHETHER COLORED OR WHITE, SHALL STAND EQUAL BEFORE THE LAWS OF
THE STATES, AND, IN REGARD TO THE COLORED RACE, FOR WHOSE PROTECTION
THE AMENDMENT WAS PRIMARILY DESIGNED, THAT NO DISCRIMINATION SHALL BE
MADE AGAINST THEM BY LAW BECAUSE OF THEIR COLOR."  FN26  STRAUDER V.
WEST VIRGINIA, SUPRA AT 307.  ONLY RECENTLY THIS COURT HAD OCCASION TO
DECLARE THAT A STATE LAW WHICH DENIED EQUAL ENJOYMENT OF PROPERTY
RIGHTS TO A DESIGNATED CLASS OF CITIZENS OF SPECIFIED RACE AND
ANCESTRY, WAS NOT A LEGITIMATE EXERCISE OF THE STATE'S POLICE POWER BUT
VIOLATED THE GUARANTY OF THE EQUAL PROTECTION OF THE LAWS.  OYAMA V.
CALIFORNIA, 332 U.S. 633(1948).  NOR MAY THE DISCRIMINATIONS IMPOSED BY
THE STATE COURTS IN THESE CASES BE JUSTIFIED AS PROPER EXERTIONS OF
STATE POLICE POWER.  FN27  CF. BUCHANAN V. WARLEY, SUPRA. 

RESPONDENTS URGE, HOWEVER, THAT SINCE THE STATE COURTS STAND READY TO
ENFORCE RESTRICTIVE COVENANTS EXCLUDING WHITE PERSONS FROM THE
OWNERSHIP OR OCCUPANCY OF PROPERTY COVERED BY SUCH AGREEMENTS,
ENFORCEMENT OF COVENANTS EXCLUDING COLORED PERSONS MAY NOT BE DEEMED A
DENIAL OF EQUAL PROTECTION OF THE LAWS TO THE COLORED PERSONS WHO ARE
THEREBY AFFECTED.  FN28  THIS CONTENTION DOES NOT BEAR SCRUTINY.  THE
PARTIES HAVE DIRECTED OUR ATTENTION TO NO CASE IN WHICH A COURT, STATE
OR FEDERAL, HAS BEEN CALLED UPON TO ENFORCE A COVENANT EXCLUDING
MEMBERS OF THE WHITE MAJORITY FROM OWNERSHIP OR OCCUPANCY OF REAL
PROPERTY ON GROUNDS OF RACE OR COLOR.  BUT THERE ARE MORE FUNDAMENTAL
CONSIDERATIONS.  THE RIGHTS CREATED BY THE FIRST SECTION OF THE
FOURTEENTH AMENDMENT ARE, BY ITS TERMS, GUARANTEED TO THE INDIVIDUAL. 
THE RIGHTS ESTABLISHED ARE PERSONAL RIGHTS.  FN29  IT IS, THEREFORE, NO
ANSWER TO THESE PETITIONERS TO SAY THAT THE COURTS MAY ALSO BE INDUCED
TO DENY WHITE PERSONS RIGHTS OF OWNERSHIP AND OCCUPANCY ON GROUNDS OF
RACE OR COLOR.  EQUAL PROTECTION OF THE LAWS IS NOT ACHIEVED THROUGH
INDISCRIMINATE IMPOSITION OF INEQUALITIES. 

NOR DO WE FIND MERIT IN THE SUGGESTION THAT PROPERTY OWNERS WHO ARE
PARTIES TO THESE AGREEMENTS ARE DENIED EQUAL PROTECTION OF THE LAWS IF
DENIED ACCESS TO THE COURTS TO ENFORCE THE TERMS OF RESTRICTIVE
COVENANTS AND TO ASSERT PROPERTY RIGHTS WHICH THE STATE COURTS HAVE
HELD TO BE CREATED BY SUCH AGREEMENTS.  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.  AND
IT WOULD APPEAR BEYOND QUESTION THAT THE POWER OF THE STATE TO CREATE
AND ENFORCE PROPERTY INTERESTS MUST BE EXERCISED WITHIN THE BOUNDARIES
DEFINED BY THE FOURTEENTH AMENDMENT.  CF. MARSH V. ALABAMA, 326 U.S.
501(1946). 

THE PROBLEM OF DEFINING THE SCOPE OF THE RESTRICTIONS WHICH THE
FEDERAL CONSTITUTION IMPOSES UPON EXERTIONS OF POWER BY THE STATES HAS
GIVEN RISE TO MANY OF THE MOST PERSISTENT AND FUNDAMENTAL ISSUES WHICH
THIS COURT HAS BEEN CALLED UPON TO CONSIDER.  THAT PROBLEM WAS FOREMOST
IN THE MINDS OF THE FRAMERS OF THE CONSTITUTION, AND, SINCE THAT EARLY
DAY, HAS ARISEN IN A MULTITUDE OF FORMS.  THE TASK OF DETERMINING
WHETHER THE ACTION OF A STATE OFFENDS CONSTITUTIONAL PROVISIONS IS ONE
WHICH MAY NOT BE UNDERTAKEN LIGHTLY.  WHERE, HOWEVER, IT IS CLEAR THAT
THE ACTION OF THE STATE VIOLATES THE TERMS OF THE FUNDAMENTAL CHARTER,
IT IS THE OBLIGATION OF THIS COURT SO TO DECLARE. 

THE HISTORICAL CONTEXT IN WHICH THE FOURTEENTH AMENDMENT BECAME A
PART OF THE CONSTITUTION SHOULD NOT BE FORGOTTEN.  WHATEVER ELSE THE
FRAMERS SOUGHT TO ACHIEVE, IT IS CLEAR THAT THE MATTER OF PRIMARY
CONCERN WAS THE ESTABLISHMENT OF EQUALITY IN THE ENJOYMENT OF BASIC
CIVIL AND POLITICAL RIGHTS AND THE PRESERVATION OF THOSE RIGHTS FROM
DISCRIMINATORY ACTION ON THE PART OF THE STATES BASED ON CONSIDERATIONS
OF RACE OR COLOR.  SEVENTY-FIVE YEARS AGO THIS COURT ANNOUNCED THAT THE
PROVISIONS OF THE AMENDMENT ARE TO BE CONSTRUED WITH THIS FUNDAMENTAL
PURPOSE IN MIND.  FN30  UPON FULL CONSIDERATION, WE HAVE CONCLUDED THAT
IN THESE CASES THE STATES HAVE ACTED TO DENY PETITIONERS THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT.  HAVING
SO DECIDED, WE FIND IT UNNECESSARY TO CONSIDER WHETHER PETITIONERS HAVE
ALSO BEEN DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW OR DENIED
PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES. 

FOR THE REASONS STATED, THE JUDGMENT OF THE SUPREME COURT OF MISSOURI
AND THE JUDGMENT OF THE SUPREME COURT OF MICHIGAN MUST BE REVERSED. 
REVERSED. 

FN1  THE TRIAL COURT FOUND THAT TITLE TO THE PROPERTY WHICH
PETITIONERS SHELLEY SOUGHT TO PURCHASE WAS HELD BY ONE BISHOP, A REAL
ESTATE DEALER, WHO PLACED THE PROPERTY IN THE NAME OF JOSEPHINE
FITZGERALD.  BISHOP, WHO ACTED AS AGENT FOR PETITIONERS IN THE
PURCHASE, CONCEALED THE FACT OF HIS OWNERSHIP. 

FN2  KRAEMER V. SHELLEY, 355 MO. 814, 198 S.W.2D 679(1946). 

FN3  SIPES V. MCGHEE, 316 MICH. 614, 25 N.W.2D 638(1947). 

FN4  THE FIRST SECTION OF THE FOURTEENTH AMENDMENT PROVIDES:  "ALL
PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND SUBJECT TO THE
JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE
STATE WHEREIN THEY RESIDE.  NO STATE SHALL MAKE OR ENFORCE ANY LAW
WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE
UNITED STATES; NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY,
OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS." 

FN5  CORRIGAN V. BUCKLEY, 271 U.S. 323, 330-331(1926). 

FN6  BUCHANAN V. WARLEY, 245 U.S. 60, 73(1917). 

FN7  SLAUGHTER-HOUSE CASES, 16 WALL.  36, 70, 81(1873).  SEE FLACK,
THE ADOPTION OF THE FOURTEENTH AMENDMENT. 

FN8  IN OYAMA V. CALIFORNIA, 332 U.S. 633, 640(1948) THE SECTION OF
THE CIVIL RIGHTS ACT HEREIN CONSIDERED IS DESCRIBED AS THE FEDERAL
STATUTE, "ENACTED BEFORE THE FOURTEENTH AMENDMENT BUT VINDICATED BY
IT."  THE CIVIL RIGHTS ACT OF 1866 WAS REENACTED IN SEC. 18 OF THE ACT
OF MAY 31, 1870, SUBSEQUENT TO THE ADOPTION OF THE FOURTEENTH
AMENDMENT.  16 STAT. 144. 

FN9  14 STAT. 27, 8 U.S.C. SEC. 42. 

FN10  BUCHANAN V. WARLEY, 245 U.S. 60, 79(1917). 

FN11  COURTS OF GEORGIA, MARYLAND, NORTH CAROLINA, OKLAHOMA, TEXAS,
AND VIRGINIA HAVE ALSO DECLARED SIMILAR STATUTES INVALID AS BEING IN
CONTRAVENTION OF THE FOURTEENTH AMENDMENT.  GLOVER V. ATLANTA, 148 GA.
285, 96 S.E. 562(1918); JACKSON V. STATE, 132 MD. 311, 103 A.
910(1918); CLINARD V. WINSTON-SALEM, 217 N.C. 119, 6 S.E.2D 867(1940);
ALLEN V. OKLAHOMA CITY, 175 OKLA. 421, 52 P.2D 1054(1936); LIBERTY
ANNEX CORP. V. DALLAS, 289 S.W. 1067(TEX.  CIV.  APP. 1927); IRVINE V.
CLIFTON FORGE, 124 VA. 781, 97 S.E. 310(1918). 

FN12  AND SEE UNITED STATES V. HARRIS, 106 U.S. 629(1883); UNITED
STATES V. CRUIKSHANK, 92 U.S. 542(1876). 

FN13  AMONG THE PHRASES APPEARING IN THE OPINION ARE THE FOLLOWING:
"THE OPERATION OF STATE LAWS, AND THE ACTION OF STATE OFFICERS
EXECUTIVE OR JUDICIAL"; "STATE LAWS AND STATE PROCEEDINGS"; "STATE LAW
...  OR SOME STATE ACTION THROUGH ITS OFFICERS OR AGENTS"; "STATE LAWS
AND ACTS DONE UNDER STATE AUTHORITY"; "STATE LAWS, OR STATE ACTION OF
SOME KIND"; "SUCH LAWS AS THE STATES MAY ADOPT OR ENFORCE"; "SUCH ACTS
AND PROCEEDINGS AS THE STATES MAY COMMIT OR TAKE"; "STATE LEGISLATION
OR ACTION"; "STATE LAW OR STATE AUTHORITY." 

FN14  NEAL V. DELAWARE, 103 U.S. 370, 397(1881); SCOTT V. MCNEAL, 154
U.S. 34, 45(1894): CHICAGO, BURLINGTON AND QUINCY R. CO. V. CHICAGO,
166 U.S. 226, 233-235(1897): HOVEY V. ELLIOTT, 167 U.S. 409, 417
418(1897); CARTER V. TEXAS, 177 U.S. 442, 447(1900); MARTIN V. TEXAS,
200 U.S. 316, 319(1906); RAYMOND V. CHICAGO UNION TRACTION CO., 207
U.S. 20, 35-36(1907); HOME TELEPHONE AND TELEGRAPH CO. V. LOS ANGELES,
227 U.S. 278, 286-287(1913); PRUDENTIAL INSURANCE CO. V. CHEEK, 259
U.S. 530, 548(1922); AMERICAN RAILWAY EXPRESS CO. V. KENTUCKY, 273 U.S.
269, 274(1927); MOONEY V. HOLOHAN, 294 U.S. 103, 112-113(1935);
HANSBERRY V. LEE, 311 U.S. 32, 41(1940). 

FN15  AND SEE STANDARD OIL CO. V. MISSOURI, 224 U.S. 270, 281
282(1912); HANSBERRY V. LEE, 311 U.S. 32(1940). 

FN16  BROWN V. MISSISSIPPI, 297 U.S. 278(1936); CHAMBERS V. FLORIDA,
309 U.S. 227(1940); ASHCRAFT V. TENNESSEE, 322 U.S. 143(1944); LEE V.
MISSISSIPPI, 332 U.S. 742(1948). 

FN17  SEE MOONEY V. HOLOHAN, 294 U.S. 103(1935); PYLE V. KANSAS, 317
U.S. 213(1942). 

FN18  POWELL V. ALABAMA, 287 U.S. 45(1932); WILLIAMS V. KAISER, 323
U.S. 471(1945); TOMKINS V. MISSOURI, 323 U.S. 485(1945); DE MEERLEER V.
MICHIGAN, 329 U.S. 663(1947). 

FN19  IN APPLYING THE RULE OF ERIE R. CO. V. TOMPKINS, 304 U.S.
64(1938), IT IS CLEAR THAT THE COMMON-LAW RULES ENUNCIATED BY STATE
COURTS IN JUDICIAL OPINIONS ARE TO BE REGARDED AS A PART OF THE LAW OF
THE STATE. 

FN20  AND SEE BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769(1942);
CAFETERIA EMPLOYEES UNION V. ANGELOS, 320 U.S. 293(1943). 

FN21  AND SEE PENNEKAMP V. FLORIDA, 328 U.S. 331(1946); CRAIG V.
HARNEY, 331 U.S. 367(1947). 

FN22  SEE SWAIN V. MAXWELL, 355 MO. 448, 196 S.W.2D 780(1946);
KOEHLER V. ROWLAND, 275 MO. 573, 205 S.W. 217(1918).  SEE ALSO PARMALEE
V. MORRIS, 218 MICH. 625, 188 N.W. 330(1922).  CF. PORTER V. BARRETT,
233 MICH. 373, 206 N.W. 532(1925). 

FN23  CF. HOME TELEPHONE AND TELEGRAPH CO. V. LOS ANGELES, 227 U.S.
278(1913); RAYMOND V. CHICAGO UNION TRACTION CO., 207 U.S. 20(1907). 

FN24  BRIDGES V. CALIFORNIA, 314 U.S. 252(1941); AMERICAN FEDERATION
OF LABOR V. SWING, 312 U.S. 321(1941). 

FN25  SEE YICK WO V. HOPKINS, 118 U.S. 356(1886); STRAUDER V. WEST
VIRGINIA, 100 U.S. 303(1880); TRUAX V. RAICH, 239 U.S. 33(1915). 

FN26  RESTRICTIVE AGREEMENTS OF THE SORT INVOLVED IN THESE CASES HAVE
BEEN USED TO EXCLUDE OTHER THAN NEGROES FROM THE OWNERSHIP OR OCCUPANCY
OF REAL PROPERTY.  WE ARE INFORMED THAT SUCH AGREEMENTS HAVE BEEN
DIRECTED AGAINST INDIANS, JEWS, CHINESE, JAPANESE, MEXICANS, HAWAIIANS,
PUERTO RICANS, AND FILIPINOS, AMONG OTHERS. 

FN27  SEE BRIDGES V. CALIFORNIA, 314 U.S. 252, 261(1941); CANTWELL V.
CONNECTICUT, 310 U.S. 296, 307-308(1940). 

FN28  IT SHOULD BE OBSERVED THAT THE RESTRICTIONS RELATING TO
RESIDENTIAL OCCUPANCY CONTAINED IN ORDINANCES INVOLVED IN THE BUCHANAN,
HARMON AND DEANS CASES, CITED SUPRA, AND DECLARED BY THIS COURT TO BE
INCONSISTENT WITH THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT, APPLIED
EQUALLY TO WHITE PERSONS AND NEGROES. 

FN29  MCCABE V. ATCHISON, TOPEKA & SANTA FE R. CO., 235 U.S. 151, 161
162(1914); MISSOURI EX REL. GAINES V. CANADA, 305 U.S. 337(1938); OYAMA
V. CALIFORNIA, 332 U.S. 633(1948). 

FN30  SLAUGHTER-HOUSE CASES, 16 WALL.  36, 81(1873); STRAUDER V. WEST
VIRGINIA, 100 U.S. 303(1880).  SEE FLACK, THE ADOPTION OF THE
FOURTEENTH AMENDMENT. 

MR. JUSTICE REED, MR. JUSTICE JACKSON, AND MR. JUSTICE RUTLEDGE TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THESE CASES. 
..END :




HURD V. HODGE, 334 U.S. 24 


ARGUED JANUARY 15-16, 1948.  - DECIDED MAY 3, 1948.  - 82 U.S. APP. D.C.
180, 162 F.2D 233, REVERSED. 


1.  COVENANTS INCORPORATED IN PRIVATE CONVEYANCES OF REAL ESTATE IN
THE DISTRICT OF COLUMBIA WHICH FORBID THE RENTAL, LEASE, SALE, TRANSFER
OR CONVEYANCE OF THE LAND TO ANY NEGRO ARE VALID; BUT THEIR ENFORCEMENT
BY THE COURTS OF THE DISTRICT OF COLUMBIA IS PROHIBITED BY R.S. SEC.
1978 GUARANTEEING TO ALL CITIZENS OF THE UNITED STATES EQUAL RIGHTS TO
INHERIT, PURCHASE, LEASE, SELL, HOLD AND CONVEY REAL AND PERSONAL
PROPERTY.  PP. 30-34. 

(A)  THE DISTRICT OF COLUMBIA IS INCLUDED IN THE PHRASE "EVERY STATE
AND TERRITORY," AS USED IN R.S. SEC. 1978.  P. 31. 

(B)  CONGRESS HAS THE CONSTITUTIONAL POWER TO ENACT SUCH LEGISLATION
FOR THE DISTRICT OF COLUMBIA.  P. 31. 

(C)  THE ACTION TOWARD WHICH R.S. SEC. 1978 IS DIRECTED IS
GOVERNMENTAL ACTION; AND IT DOES NOT INVALIDATE PRIVATE AGREEMENTS, SO
LONG AS THEIR PURPOSE IS ACHIEVED THROUGH VOLUNTARY ADHERENCE TO THEIR
TERMS.  P. 31. 

(D)  JUDICIAL ENFORCEMENT OF SUCH DISCRIMINATORY COVENANTS IS
PROHIBITED BY R.S. SEC. 1978, WHICH IS DERIVED FROM THE CIVIL RIGHTS
ACT AND CLOSELY RELATED TO THE FOURTEENTH AMENDMENT.  PP. 31-34. 

2.  THE POWER OF THE FEDERAL COURTS TO ENFORCE THE TERMS OF PRIVATE
AGREEMENTS IS AT ALL TIMES EXERCISED SUBJECT TO THE RESTRICTIONS AND
LIMITATIONS OF THE PUBLIC POLICY OF THE UNITED STATES AS MANIFESTED IN
THE CONSTITUTION, TREATIES, FEDERAL STATUTES, AND APPLICABLE LEGAL
PRECEDENTS.  PP. 34-35. 

3.  EVEN IN THE ABSENCE OF A STATUTE SUCH AS R.S. SEC. 1978, 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 BY THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 34-36. 

HURD ET UX. V. HODGE ET AL. 

NO. 290.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA* . 

*TOGETHER WITH NO. 291, URCIOLO ET AL. V. HODGE ET AL., ALSO ON
CERTIORARI TO THE SAME COURT. 

THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
AFFIRMED A JUDGMENT OF THE DISTRICT COURT DECREEING ENFORCEMENT OF A
COVENANT INCORPORATED IN CONVEYANCES OF LAND AND FORBIDDING ITS RENTAL,
LEASE, SALE, TRANSFER OR CONVEYANCE TO ANY NEGRO.  82 U.S. APP. DC.
180, 162 F.2D 233.  THIS COURT GRANTED CERTIORARI.  332 U.S. 789. 
REVERSED, P. 36. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO SHELLEY V. KRAEMER AND MCGHEE V. SIPES,
ANTE, P. 1, AND COME TO THIS COURT ON CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

IN 1906, TWENTY OF THIRTY-ONE LOTS IN THE 100 BLOCK OF BRYANT STREET,
NORTHWEST, IN THE CITY OF WASHINGTON, WERE SOLD SUBJECT TO THE
FOLLOWING COVENANT: 

"  ... THAT SAID LOT SHALL NEVER BE RENTED, LEASED, SOLD, TRANSFERRED
OR CONVEYED UNTO ANY NEGRO OR COLORED PERSON, UNDER A PENALTY OF TWO
THOUSAND DOLLARS ($2,000), WHICH SHALL BE A LIEN AGAINST SAID
PROPERTY." 

THE COVENANT IMPOSES NO TIME LIMITATION ON THE RESTRICTION. 

PRIOR TO THE SALES WHICH GAVE RISE TO THESE CASES, THE TWENTY LOTS
WHICH ARE SUBJECT TO THE COVENANTS WERE AT ALL TIMES OWNED AND OCCUPIED
BY WHITE PERSONS, EXCEPT FOR A BRIEF PERIOD WHEN THREE OF THE HOUSES
WERE OCCUPIED BY NEGROES WHO WERE EVENTUALLY INDUCED TO MOVE WITHOUT
LEGAL ACTION.  THE REMAINING ELEVEN LOTS IN THE SAME BLOCK,  FN1
HOWEVER, ARE NOT SUBJECT TO A RESTRICTIVE AGREEMENT AND, AS FOUND BY
THE DISTRICT COURT, WERE OCCUPIED BY NEGROES FOR THE TWENTY YEARS PRIOR
TO THE INSTITUTION OF THIS LITIGATION. 

THESE CASES INVOLVE SEVEN OF THE TWENTY LOTS WHICH ARE SUBJECT TO THE
TERMS OF THE RESTRICTIVE COVENANTS.  IN NO. 290, PETITIONERS HURD,
FOUND BY THE TRIAL COURT TO BE NEGROES,  FN2  PURCHASED ONE OF THE
RESTRICTED PROPERTIES FROM THE WHITE OWNERS.  IN NO. 291, PETITIONER
URCIOLO, A WHITE REAL ESTATE DEALER, SOLD AND CONVEYED THREE OF THE
RESTRICTED PROPERTIES TO THE NEGRO PETITIONERS ROWE, SAVAGE, AND
STEWART.  PETITIONER URCIOLO ALSO OWNS THREE OTHER LOTS IN THE BLOCK
SUBJECT TO THE COVENANTS.  IN BOTH CASES, THE NEGRO PETITIONERS ARE
PRESENTLY OCCUPYING AS HOMES THE RESPECTIVE PROPERTIES WHICH HAVE BEEN
CONVEYED TO THEM. 

SUITS WERE INSTITUTED IN THE DISTRICT COURT BY RESPONDENTS, WHO OWN
OTHER PROPERTY IN THE BLOCK SUBJECT TO THE TERMS OF THE COVENANTS,
PRAYING FOR INJUNCTIVE RELIEF TO ENFORCE THE TERMS OF THE RESTRICTIVE
AGREEMENT.  THE CASES WERE CONSOLIDATED FOR TRIAL, AND AFTER A HEARING,
THE COURT ENTERED A JUDGMENT DECLARING NULL AND VOID THE DEEDS OF THE
NEGRO PETITIONERS; ENJOINING PETITIONER URCIOLO AND ONE RYAN, THE WHITE
PROPERTY OWNERS WHO HAD SOLD THE HOUSES TO THE NEGRO PETITIONERS, FROM
LEASING, SELLING OR CONVEYING THE PROPERTIES TO ANY NEGRO OR COLORED
PERSON; ENJOINING THE NEGRO PETITIONERS FROM LEASING OR CONVEYING THE
PROPERTIES AND DIRECTING THOSE PETITIONERS "TO REMOVE THEMSELVES AND
ALL OF THEIR PERSONAL BELONGINGS" FROM THE PREMISES WITHIN SIXTY DAYS. 

THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, WITH
ONE JUSTICE DISSENTING, AFFIRMED THE JUDGMENT OF THE DISTRICT COURT. 
FN3  THE MAJORITY OF THE COURT WAS OF THE OPINION THAT THE ACTION OF
THE DISTRICT COURT WAS CONSISTENT WITH EARLIER DECISIONS OF THE COURT
OF APPEALS AND THAT THOSE DECISIONS SHOULD BE HELD DETERMINATIVE IN
THESE CASES. 

PETITIONERS HAVE ATTACKED THE JUDICIAL ENFORCEMENT OF THE RESTRICTIVE
COVENANTS IN THESE CASES ON A WIDE VARIETY OF GROUNDS.  PRIMARY
RELIANCE, HOWEVER, IS PLACED ON THE CONTENTION THAT SUCH GOVERNMENTAL
ACTION ON THE PART OF THE COURTS OF THE DISTRICT OF COLUMBIA IS
FORBIDDEN BY THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT OF THE
FEDERAL CONSTITUTION.  FN4 

WHETHER JUDICIAL ENFORCEMENT OF RACIAL RESTRICTIVE AGREEMENTS BY THE
FEDERAL COURTS OF THE DISTRICT OF COLUMBIA VIOLATES THE FIFTH AMENDMENT
HAS NEVER BEEN ADJUDICATED BY THIS COURT.  IN CORRIGAN V. BUCKLEY, 271
U.S. 323(1926), AN APPEAL WAS TAKEN TO THIS COURT FROM A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA WHICH
HAD AFFIRMED AN ORDER OF THE LOWER COURT GRANTING ENFORCEMENT TO A
RESTRICTIVE COVENANT.  BUT AS WAS POINTED OUT IN OUR OPINION IN SHELLEY
V. KRAEMER, SUPRA, THE ONLY CONSTITUTIONAL ISSUE WHICH HAD BEEN RAISED
IN THE LOWER COURTS IN THE CORRIGAN CASE, AND, CONSEQUENTLY, THE ONLY
CONSTITUTIONAL QUESTION BEFORE THIS COURT ON APPEAL, RELATED TO THE
VALIDITY OF THE PRIVATE AGREEMENTS AS SUCH.  NOTHING IN THE OPINION OF
THIS COURT IN THAT CASE, THEREFORE, MAY PROPERLY BE REGARDED AS AN
ADJUDICATION OF THE ISSUE PRESENTED BY PETITIONERS IN THIS CASE WHICH
CONCERNS, NOT THE VALIDITY OF THE RESTRICTIVE AGREEMENTS STANDING
ALONE, BUT THE VALIDITY OF COURT ENFORCEMENT OF THE RESTRICTIVE
COVENANTS UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  FN5
SEE SHELLEY V. KRAEMER, SUPRA AT P. 8. 

THIS COURT HAS DECLARED INVALID MUNICIPAL ORDINANCES RESTRICTING
OCCUPANCY IN DESIGNATED AREAS TO PERSONS OF SPECIFIED RACE AND COLOR AS
DENYING RIGHTS OF WHITE SELLERS AND NEGRO PURCHASERS OF PROPERTY,
GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
BUCHANAN V. WARLEY, 245 U.S. 60(1917); HARMON V. TYLER, 273 U.S.
668(1927); RICHMOND V. DEANS, 281 U.S. 704(1930).  PETITIONERS URGE
THAT JUDICIAL ENFORCEMENT OF THE RESTRICTIVE COVENANTS BY COURTS OF THE
DISTRICT OF COLUMBIA SHOULD LIKEWISE BE HELD TO DENY RIGHTS OF WHITE
SELLERS AND NEGRO PURCHASERS OF PROPERTY, GUARANTEED BY THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT.  PETITIONERS POINT OUT THAT THIS COURT
IN HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 100(1943), REACHED ITS
DECISION IN A CASE IN WHICH ISSUES UNDER THE FIFTH AMENDMENT WERE
PRESENTED, ON THE ASSUMPTION THAT "RACIAL DISCRIMINATIONS ARE IN MOST
CIRCUMSTANCES IRRELEVANT AND THEREFORE PROHIBITED  ...  "  AND SEE
KOREMATSU V. UNITED STATES, 323 U.S. 214, 216(1944). 

UPON FULL CONSIDERATION, HOWEVER, WE HAVE FOUND IT UNNECESSARY TO
RESOLVE THE CONSTITUTIONAL ISSUE WHICH PETITIONERS ADVANCE; FOR WE HAVE
CONCLUDED THAT JUDICIAL ENFORCEMENT OF RESTRICTIVE COVENANTS BY THE
COURTS OF THE DISTRICT OF COLUMBIA IS IMPROPER FOR OTHER REASONS
HEREINAFTER STATED.  FN6 

CIVIL RIGHTS ACT OF 1866,  FN7 PROVIDES: 

"ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT, IN
EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS THEREOF TO
INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL
PROPERTY."  FN8 

ALL THE PETITIONERS IN THESE CASES, AS FOUND BY THE DISTRICT COURT,
ARE CITIZENS OF THE UNITED STATES.  WE HAVE NO DOUBT THAT, FOR THE
PURPOSES OF THIS SECTION, THE DISTRICT OF COLUMBIA IS INCLUDED WITHIN
THE PHRASE "EVERY STATE AND TERRITORY."  FN9 NOR CAN THERE BE DOUBT OF
THE CONSTITUTIONAL POWER OF CONGRESS TO ENACT SUCH LEGISLATION WITH
REFERENCE TO THE DISTRICT OF COLUMBIA.  FN10 

WE MAY START WITH THE PROPOSITION THAT THE STATUTE DOES NOT
INVALIDATE PRIVATE RESTRICTIVE AGREEMENTS SO LONG AS THE PURPOSES OF
THOSE AGREEMENTS ARE ACHIEVED BY THE PARTIES THROUGH VOLUNTARY
ADHERENCE TO THE TERMS.  THE ACTION TOWARD WHICH THE PROVISIONS OF THE
STATUTE UNDER CONSIDERATION IS DIRECTED IS GOVERNMENTAL ACTION.  SUCH
WAS THE HOLDING OF CORRIGAN V. BUCKLEY, SUPRA. 

IN CONSIDERING WHETHER JUDICIAL ENFORCEMENT OF RESTRICTIVE COVENANTS
IS THE KIND OF GOVERNMENTAL ACTION WHICH THE FIRST SECTION OF THE CIVIL
RIGHTS ACT OF 1866 WAS INTENDED TO PROHIBIT, REFERENCE MUST BE MADE TO
THE SCOPE AND PURPOSES OF THE FOURTEENTH AMENDMENT; FOR THAT STATUTE
AND THE AMENDMENT WERE CLOSELY RELATED BOTH IN INCEPTION AND IN THE
OBJECTIVES WHICH CONGRESS SOUGHT TO ACHIEVE. 

BOTH THE CIVIL RIGHTS ACT OF 1866 AND THE JOINT RESOLUTION WHICH WAS
LATER ADOPTED AS THE FOURTEENTH AMENDMENT WERE PASSED IN THE FIRST
SESSION OF THE THIRTY-NINTH CONGRESS.  FN11 FREQUENT REFERENCES TO THE
CIVIL RIGHTS ACT ARE TO BE FOUND IN THE RECORD OF THE LEGISLATIVE
DEBATES ON THE ADOPTION OF THE AMENDMENT.  FN12  IT IS CLEAR THAT IN
MANY SIGNIFICANT RESPECTS THE STATUTE AND THE AMENDMENT WERE
EXPRESSIONS OF THE SAME GENERAL CONGRESSIONAL POLICY.  INDEED, AS THE
LEGISLATIVE DEBATES REVEAL, ONE OF THE PRIMARY PURPOSES OF MANY MEMBERS
OF CONGRESS IN SUPPORTING THE ADOPTION OF THE FOURTEENTH AMENDMENT WAS
TO INCORPORATE THE GUARANTIES OF THE CIVIL RIGHTS ACT OF 1866 IN THE
ORGANIC LAW OF THE LAND.  FN13  OTHERS SUPPORTED THE ADOPTION OF THE
AMENDMENT IN ORDER TO ELIMINATE DOUBT AS TO THE CONSTITUTIONAL VALIDITY
OF THE CIVIL RIGHTS ACT AS APPLIED TO THE STATES.  FN14 

THE CLOSE RELATIONSHIP BETWEEN SEC. 1 OF THE CIVIL RIGHTS ACT AND THE
FOURTEENTH AMENDMENT WAS GIVEN SPECIFIC RECOGNITION BY THIS COURT IN
BUCHANAN V. WARLEY, SUPRA AT 79.  THERE, THE COURT OBSERVED THAT, NOT
ONLY THROUGH THE OPERATION OF THE FOURTEENTH AMENDMENT, BUT ALSO BY
VIRTUE OF THE "STATUTES ENACTED IN FURTHERANCE OF ITS PURPOSE,"
INCLUDING THE PROVISIONS HERE CONSIDERED, A COLORED MAN IS GRANTED THE
RIGHT TO ACQUIRE PROPERTY FREE FROM INTERFERENCE BY DISCRIMINATORY
STATE LEGISLATION.  IN SHELLEY V. KRAEMER, SUPRA, WE HAVE HELD THAT THE
FOURTEENTH AMENDMENT ALSO FORBIDS SUCH DISCRIMINATION WHERE IMPOSED BY
STATE COURTS IN THE ENFORCEMENT OF RESTRICTIVE COVENANTS.  THAT HOLDING
IS CLEARLY INDICATIVE OF THE CONSTRUCTION TO BE GIVEN TO THE RELEVANT
PROVISIONS OF THE CIVIL RIGHTS ACT IN THEIR APPLICATION TO THE COURTS
OF THE DISTRICT OF COLUMBIA. 

MOREOVER, THE EXPLICIT LANGUAGE EMPLOYED BY CONGRESS TO EFFECTUATE
ITS PURPOSES LEAVES NO DOUBT THAT JUDICIAL ENFORCEMENT OF THE
RESTRICTIVE COVENANTS BY THE COURTS OF THE DISTRICT OF COLUMBIA IS
PROHIBITED BY THE CIVIL RIGHTS ACT.  THAT STATUTE, BY ITS TERMS,
REQUIRES THAT ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME
RIGHT "AS IS ENJOYED BY WHITE CITIZENS  ...  TO INHERIT, PURCHASE,
LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL PROPERTY."  THAT THE
NEGRO PETITIONERS HAVE BEEN DENIED THAT RIGHT BY VIRTUE OF THE ACTION
OF THE FEDERAL COURTS OF THE DISTRICT IS CLEAR.  THE NEGRO PETITIONERS
ENTERED INTO CONTRACTS OF SALE WITH WILLING SELLERS FOR THE PURCHASE OF
PROPERTIES UPON WHICH THEY DESIRED TO ESTABLISH HOMES.  SOLELY BECAUSE
OF THEIR RACE AND COLOR THEY ARE CONFRONTED WITH ORDERS OF COURT
DIVESTING THEIR TITLES IN THE PROPERTIES AND ORDERING THAT THE PREMISES
BE VACATED.  WHITE SELLERS, ONE OF WHOM IS A PETITIONER HERE, HAVE BEEN
ENJOINED FROM SELLING THE PROPERTIES TO ANY NEGRO OR COLORED PERSON. 
UNDER SUCH CIRCUMSTANCES, TO SUGGEST THAT THE NEGRO PETITIONERS HAVE
BEEN ACCORDED THE SAME RIGHTS AS WHITE CITIZENS TO PURCHASE, HOLD, AND
CONVEY REAL PROPERTY IS TO REJECT THE PLAIN MEANING OF LANGUAGE.  WE
HOLD THAT THE ACTION OF THE DISTRICT COURT DIRECTED AGAINST THE NEGRO
PURCHASERS AND THE WHITE SELLERS DENIES RIGHTS INTENDED BY CONGRESS TO
BE PROTECTED BY THE CIVIL RIGHTS ACT AND THAT, CONSEQUENTLY, THE ACTION
CANNOT STAND. 

BUT EVEN IN THE ABSENCE OF THE STATUTE, THERE ARE OTHER
CONSIDERATIONS WHICH WOULD INDICATE THAT ENFORCEMENT OF RESTRICTIVE
COVENANTS IN THESE CASES IS JUDICIAL ACTION CONTRARY TO THE PUBLIC
POLICY OF THE UNITED STATES,  FN15  AND AS SUCH SHOULD BE CORRECTED BY
THIS COURT IN THE EXERCISE OF ITS SUPERVISORY POWERS OVER THE COURTS OF
THE DISTRICT OF COLUMBIA.  FN16  THE POWER OF THE FEDERAL COURTS TO
ENFORCE THE TERMS OF PRIVATE AGREEMENTS IS AT ALL TIMES EXERCISED
SUBJECT TO THE RESTRICTIONS AND LIMITATIONS OF THE PUBLIC POLICY OF THE
UNITED STATES AS MANIFESTED IN THE CONSTITUTION, TREATIES, FEDERAL
STATUTES, AND APPLICABLE LEGAL PRECEDENTS.  FN17  WHERE THE ENFORCEMENT
OF PRIVATE AGREEMENTS WOULD BE VIOLATIVE OF THAT POLICY, IT IS THE
OBLIGATION OF COURTS TO REFRAIN FROM SUCH EXERTIONS OF JUDICIAL POWER. 
FN18 

WE ARE HERE CONCERNED WITH ACTION OF FEDERAL COURTS OF SUCH A NATURE
THAT IF TAKEN BY THE COURTS OF A STATE WOULD VIOLATE THE PROHIBITORY
PROVISIONS OF THE FOURTEENTH AMENDMENT.  SHELLEY V. KRAEMER, SUPRA.  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.  FN19  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.  REVERSED. 

FN1  ALL OF THE RESIDENTIAL PROPERTY IN THE BLOCK IS ON THE SOUTH
SIDE OF THE STREET, THE NORTHERN SIDE OF THE STREET PROVIDING A
BOUNDARY FOR A PUBLIC PARK. 

FN2  PETITIONER JAMES M. HURD MAINTAINED THAT HE IS NOT A NEGRO BUT A
MOHAWK INDIAN. 

FN3  82 U.S. APP. D.C. 180, 162 F.2D 233(1947).    FN4  OTHER
CONTENTIONS MADE BY PETITIONERS INCLUDE THE FOLLOWING:  JUDICIAL
ENFORCEMENT OF THE COVENANTS IS CONTRARY TO SEC. 1978 OF THE REVISED
STATUTES, DERIVED FROM THE CIVIL RIGHTS ACT OF 1866, AND TO TREATY
OBLIGATIONS OF THE UNITED STATES CONTAINED IN THE UNITED NATIONS'
CHARTER; ENFORCEMENT OF THE COVENANTS IS CONTRARY TO THE PUBLIC POLICY;
ENFORCEMENT OF THE COVENANTS IS INEQUITABLE. 

FN5  PRIOR TO THE PRESENT LITIGATION, THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA HAD CONSIDERED CASES INVOLVING
ENFORCEMENT OF RACIAL RESTRICTIVE AGREEMENTS ON AT LEAST EIGHT
OCCASIONS.  CORRIGAN V. BUCKLEY, 55 APP. D.C. 30, 299 F. 899(1924);
TORREY V. WOLFES, 56 APP. D.C. 4, 6 F.2D 702(1925); RUSSELL V. WALLACE,
58 APP. D.C. 357, 30 F.2D 981(1929); CORNISH V. O'DONOGHUE, 58 APP.
D.C. 359, 30 F.2D 983(1929); GRADY V. GARLAND, 67 APP. D.C. 73, 89 F.2D
817(1937); HUNDLEY V. GOREWITZ, 77 U.S. APP. D.C. 48, 132 F.2D
23(1942); MAYS V. BURGESS, 79 U.S. APP. D.C. 343, 147 F.2D 869(1945);
MAYS V. BURGESS, 80 U.S. APP. D.C. 236, 152 F.2D 123(1945). 

IN CORRIGAN V. BUCKLEY, SUPRA, THE FIRST OF THE CASES DECIDED BY THE
UNITED STATES COURT OF APPEALS AND RELIED ON IN MOST OF THE SUBSEQUENT
DECISIONS, THE OPINION OF THE COURT CONTAINS NO CONSIDERATION OF THE
SPECIFIC ISSUES PRESENTED TO THIS COURT IN THESE CASES.  AN APPEAL FROM
THE DECISION IN CORRIGAN V. BUCKLEY WAS DISMISSED BY THIS COURT.  271
U.S. 323(1926).  SEE DISCUSSION SUPRA.  IN HUNDLEY V. GOREWITZ, SUPRA,
THE UNITED STATES COURT OF APPEALS REFUSED ENFORCEMENT OF A RESTRICTIVE
AGREEMENT WHERE CHANGES IN THE CHARACTER OF THE NEIGHBORHOOD WOULD HAVE
RENDERED ENFORCEMENT INEQUITABLE. 

FN6  IT IS A WELL-ESTABLISHED PRINCIPLE THAT THIS COURT WILL NOT
DECIDE CONSTITUTIONAL QUESTIONS WHERE OTHER GROUNDS ARE AVAILABLE AND
DISPOSITIVE OF THE ISSUES OF THE CASE.  RECENT EXPRESSIONS OF THAT
POLICY ARE TO BE FOUND IN ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE CO.,
329 U.S. 129(1946); RESCUE ARMY V. MUNICIPAL COURT, 331 U.S.
549(1947). 

FN7  14 STAT. 27.  SECTION 1 OF THE ACT PROVIDED:  " ...  THAT ALL
PERSONS BORN IN THE UNITED STATES AND NOT SUBJECT TO ANY FOREIGN POWER,
EXCLUDING INDIANS NOT TAXED, ARE HEREBY DECLARED TO BE CITIZENS OF THE
UNITED STATES; AND SUCH CITIZENS, OF EVERY RACE AND COLOR, WITHOUT
REGARD TO ANY PREVIOUS CONDITION OF SLAVERY OR INVOLUNTARY SERVITUDE,
EXCEPT AS A PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY
CONVICTED, SHALL HAVE THE SAME RIGHT, IN EVERY STATE AND TERRITORY IN
THE UNITED STATES, TO MAKE AND ENFORCE CONTRACTS, TO SUE, BE PARTIES,
AND GIVE EVIDENCE, TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY
REAL AND PERSONAL PROPERTY, AND TO FULL AND EQUAL BENEFIT OF ALL LAWS
AND PROCEEDINGS FOR THE SECURITY OF PERSON AND PROPERTY, AS IS ENJOYED
BY WHITE CITIZENS, AND SHALL BE SUBJECT TO LIKE PUNISHMENT, PAINS, AND
PENALTIES, AND TO NONE OTHER, ANY LAW, STATUTE, ORDINANCE, REGULATION,
OR CUSTOM, TO THE CONTRARY NOTWITHSTANDING." 

THE CIVIL RIGHTS ACT OF 1866 WAS REENACTED IN SEC. 18 OF THE ACT OF
MAY 31, 1870, 16 STAT. 144, PASSED SUBSEQUENT TO THE ADOPTION OF THE
FOURTEENTH AMENDMENT.  SECTION 1977 OF THE REVISED STATUTES (8 U.S.C.
SEC. 41), DERIVED FROM SEC. 16 OF THE ACT OF 1870, WHICH IN TURN WAS
PATTERNED AFTER SEC. 1 OF THE CIVIL RIGHTS ACT OF 1866, PROVIDES:  "ALL
PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES SHALL HAVE THE
SAME RIGHT IN EVERY STATE AND TERRITORY TO MAKE AND ENFORCE CONTRACTS,
TO SUE, BE PARTIES, GIVE EVIDENCE, AND TO THE FULL AND EQUAL BENEFIT OF
ALL LAWS AND PROCEEDINGS FOR THE SECURITY OF PERSONS AND PROPERTY AS IS
ENJOYED BY WHITE CITIZENS, AND SHALL BE SUBJECT TO LIKE PUNISHMENT,
PAINS, PENALTIES, TAXES, LICENSES, AND EXACTIONS OF EVERY KIND, AND TO
NO OTHER." 

FN8  8 U.S.C. SEC. 42. 

FN9  CF. TALBOTT V. SILVER BOW COUNTY, 139 U.S. 438, 444(1891). 

FN10  SEE KELLER V. POTOMAC ELECTRIC POWER CO., 261 U.S. 428, 442
443(1923). 

FN11  THE CIVIL RIGHTS ACT OF 1866 BECAME LAW ON APRIL 9, 1866.  THE
JOINT RESOLUTION SUBMITTING THE FOURTEENTH AMENDMENT TO THE STATES
PASSED THE HOUSE OF REPRESENTATIVES ON JUNE 13, 1866, HAVING PREVIOUSLY
PASSED THE SENATE ON JUNE 8.  CONG. GLOBE, 39TH CONG., 1ST SESS. 3148
3149, 3042. 

FN12  SEE, E.G., CONG. GLOBE, 39TH CONG., 1ST SESS. 2459, 2461, 2462,
2465, 2467, 2498, 2506, 2511, 2538, 2896, 2961, 3035. 

FN13  THUS, MR. THAYER OF PENNSYLVANIA, SPEAKING IN THE HOUSE OF
REPRESENTATIVES, STATED:  "AS I UNDERSTAND IT, IT IS BUT INCORPORATING
IN THE CONSTITUTION OF THE UNITED STATES THE PRINCIPLE OF THE CIVIL
RIGHTS BILL WHICH HAS LATELY BECOME A LAW,  ...  IN ORDER  ...  THAT
THAT PROVISION SO NECESSARY FOR THE EQUAL ADMINISTRATION OF THE LAW, SO
JUST IN ITS OPERATION, SO NECESSARY FOR THE PROTECTION OF THE
FUNDAMENTAL RIGHTS OF CITIZENSHIP, SHALL BE FOREVER INCORPORATED IN THE
CONSTITUTION OF THE UNITED STATES."  CONG. GLOBE, 39TH CONG., 1ST SESS.
2465.  AND NOTE THE REMARKS OF MR. STEVENS OF PENNSYLVANIA IN REPORTING
TO THE HOUSE THE JOINT RESOLUTION WHICH WAS SUBSEQUENTLY ADOPTED AS THE
FOURTEENTH AMENDMENT.  ID. AT 2459.  SEE ALSO ID. AT 2462, 2896, 2961. 
THAT SUCH WAS UNDERSTOOD TO BE A PRIMARY PURPOSE OF THE AMENDMENT IS
MADE CLEAR NOT ONLY FROM STATEMENTS OF THE PROPONENTS OF THE AMENDMENT
BUT OF ITS OPPONENTS.  ID. AT 2467, 2538.  SEE FLACK, THE ADOPTION OF
THE FOURTEENTH AMENDMENT 94-96. 

FN14  NO DOUBTS WERE EXPRESSED AS TO THE CONSTITUTIONALITY OF THE
CIVIL RIGHTS ACT IN ITS APPLICATION TO THE DISTRICT OF COLUMBIA. 
SENATOR POLAND OF VERMONT STATED:  "IT CERTAINLY SEEMS DESIRABLE THAT
NO DOUBT SHOULD BE LEFT EXISTING AS TO THE POWER OF CONGRESS TO ENFORCE
PRINCIPLES LYING AT THE VERY FOUNDATION OF ALL REPUBLICAN GOVERNMENT IF
THEY BE DENIED OR VIOLATED BY THE STATES, AND I CANNOT DOUBT BUT THAT
EVERY SENATOR WILL REJOICE IN AIDING TO REMOVE ALL DOUBT UPON THIS
POWER OF CONGRESS."  CONG. GLOBE, 39TH CONG., 1ST SESS. 2961.  SEE ALSO
ID. AT 2461, 2498, 2506, 2511, 2896, 3035. 

FN15  SEE UNITED STATES V. HUTCHESON, 312 U.S. 219, 235(1941);
JOHNSON V. UNITED STATES, 163 F. 30, 32(1908). 

FN16  SECTION 240(A) OF THE JUDICIAL CODE, 43 STAT. 938, 28 U.S.C.
SEC. 347(A), PROVIDES:  "IN ANY CASE, CIVIL OR CRIMINAL, IN A CIRCUIT
COURT OF APPEALS, OR IN THE COURT OF APPEALS OF THE DISTRICT OF
COLUMBIA, IT SHALL BE COMPETENT FOR THE SUPREME COURT OF THE UNITED
STATES, UPON THE PETITION OF ANY PARTY THERETO, WHETHER GOVERNMENT OR
OTHER LITIGANT, TO REQUIRE BY CERTIORARI, EITHER BEFORE OR AFTER A
JUDGMENT OR DECREE BY SUCH LOWER COURT, THAT THE CAUSE BE CERTIFIED TO
THE SUPREME COURT FOR DETERMINATION BY IT WITH THE SAME POWER AND
AUTHORITY, AND WITH LIKE EFFECT, AS IF THE CAUSE HAD BEEN BROUGHT THERE
BY UNRESTRICTED WRIT OF ERROR OR APPEAL." 

FN17  MUSCHANY V. UNITED STATES, 324 U.S. 49, 66(1945).  AND SEE
LICENSE TAX CASES, 5 WALL.  462, 469(1867). 

FN18  CF. KENNETT V. CHAMBERS, 14 HOW.  38(1852); TOOL CO. V. NORRIS,
2 WALL.  45(1865); SPROTT V. UNITED STATES, 20 WALL.  459(1874); TRIST
V. CHILD, 21 WALL.  441(1875); OSCANYAN V. ARMS CO., 103 U.S.
261(1881); BURT V. UNION CENTRAL LIFE INSURANCE CO., 187 U.S.
362(1902); SAGE V. HAMPE, 235 U.S. 99(1914).  AND SEE BEASLEY V. TEXAS
& PACIFIC R. CO., 191 U.S. 492(1903). 

FN19  CF. GANDOLFO V. HARTMAN, 49 F. 181, 183(1892). 

MR. JUSTICE REED, MR. JUSTICE JACKSON, AND MR. JUSTICE RUTLEDGE TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IN THESE CASES, THE PLAINTIFFS ASK EQUITY TO ENJOIN WHITE PROPERTY
OWNERS WHO ARE DESIROUS OF SELLING THEIR HOUSES TO NEGRO BUYERS SIMPLY
BECAUSE THE HOUSES WERE SUBJECT TO AN ORIGINAL AGREEMENT NOT TO HAVE
THEM PASS INTO NEGRO OWNERSHIP.  EQUITY IS ROOTED IN CONSCIENCE.  AN
INJUNCTION IS, AS IT ALWAYS HAS BEEN, "AN EXTRAORDINARY REMEDIAL
PROCESS WHICH IS GRANTED, NOT AS A MATTER OF RIGHT BUT IN THE EXERCISE
OF A SOUND JUDICIAL DISCRETION."  MORRISON V. WORK, 266 U.S. 481, 490. 
IN GOOD CONSCIENCE, IT CANNOT BE "THE EXERCISE OF A SOUND JUDICIAL
DISCRETION" BY A FEDERAL COURT TO GRANT THE RELIEF HERE ASKED FOR WHEN
THE AUTHORIZATION OF SUCH AN INJUNCTION BY THE STATES OF THE UNION
VIOLATES THE CONSTITUTION - AND VIOLATES IT, NOT FOR ANY NARROW
TECHNICAL REASON, BUT FOR CONSIDERATIONS THAT TOUCH RIGHTS SO BASIC TO
OUR SOCIETY THAT, AFTER THE CIVIL WAR, THEIR PROTECTION AGAINST
INVASION BY THE STATES WAS SAFEGUARDED BY THE CONSTITUTION.  THIS IS TO
ME A SUFFICIENT AND CONCLUSIVE GROUND FOR REACHING THE COURT'S RESULT. 

..END :























TRADE COMM'N V. MORTON SALT CO., 334 U.S. 37 


NO. 464.  ARGUED MARCH 10, 1948.  - DECIDED MAY 3, 1948.  - 162 F.2D
949, REVERSED. 


RESPONDENT SELLS TABLE SALT IN INTERSTATE COMMERCE TO WHOLESALERS AND
RETAILERS ON A QUANTITY DISCOUNT BASIS.  THE FEDERAL TRADE COMMISSION,
AFTER A HEARING, FOUND THAT RESPONDENT HAD DISCRIMINATED IN PRICE
BETWEEN DIFFERENT PURCHASERS OF LIKE GRADES AND QUALITIES, IN VIOLATION
OF SEC. 2 OF THE CLAYTON ACT AS AMENDED BY THE ROBINSON-PATMAN ACT, AND
ISSUED A CEASE-AND-DESIST ORDER.  HELD: 

1.  RESPONDENT'S QUANTITY DISCOUNTS DISCRIMINATE IN PRICE WITHIN THE
MEANING OF THE ACT, AND ARE PROHIBITED WHERE THEY HAVE THE PROSCRIBED
EFFECT ON COMPETITION.  PP. 42-44. 

2.  THE LEGISLATIVE HISTORY OF THE ROBINSON-PATMAN ACT SHOWS THAT
CONGRESS CONSIDERED IT TO BE AN EVIL THAT A LARGE BUYER COULD SECURE A
COMPETITIVE ADVANTAGE OVER A SMALL BUYER SOLELY BECAUSE OF THE FORMER'S
QUANTITY PURCHASING POWER; AND THE ACT WAS PASSED TO DEPRIVE A LARGE
BUYER OF SUCH ADVANTAGES EXCEPT TO THE EXTENT THAT A LOWER PRICE COULD
BE JUSTIFIED BY REASON OF A SELLER'S DIMINISHED COSTS DUE TO QUANTITY
PRODUCTION, DELIVERY OR SALE, OR BY REASON OF THE SELLER'S GOOD FAITH
EFFORT TO MEET THE EQUALLY LOW PRICE OF A COMPETITOR.  PP. 43-44. 

3.  UNDER THE ACT THE BURDEN IS UPON THE SELLER TO PROVE THAT ITS
QUANTITY DISCOUNT DIFFERENTIALS WERE JUSTIFIED BY COST SAVINGS; TO
ESTABLISH THE EXISTENCE OF A "DISCRIMINATION IN PRICE" IN A CASE
INVOLVING COMPETITIVE INJURY BETWEEN A SELLER'S CUSTOMERS, THE
COMMISSION NEED ONLY PROVE THAT THE SELLER HAS CHARGED ONE PURCHASER A
HIGHER PRICE FOR LIKE GOODS THAN HE HAS CHARGED ONE OR MORE OF THE
PURCHASER'S COMPETITORS.  PP. 44-45. 

4.  THE ACT DOES NOT REQUIRE THAT THE DISCRIMINATIONS MUST IN FACT
HAVE HARMED COMPETITION, BUT ONLY THAT THERE IS A REASONABLE
POSSIBILITY THEY MAY HAVE THAT EFFECT.  P. 46. 

5.  THE COMMISSION'S FINDING THAT THE COMPETITIVE OPPORTUNITIES OF
CERTAIN MERCHANTS WERE INJURED WHEN THEY HAD TO PAY RESPONDENT
SUBSTANTIALLY MORE FOR THEIR GOODS THAN THEIR COMPETITORS HAD TO PAY
CONSTITUTES A SUFFICIENT SHOWING OF INJURY TO COMPETITION.  PP. 46-47. 

6.  THE COMMISSION'S FINDINGS OF INJURY TO COMPETITION WERE
ADEQUATELY SUPPORTED BY THE EVIDENCE.  PP. 47-51. 

(A)  THE EVIDENCE THAT RESPONDENT'S QUANTITY DISCOUNTS RESULTED IN
PRICE DIFFERENTIALS BETWEEN COMPETING PURCHASERS SUFFICIENT IN AMOUNT
TO INFLUENCE THEIR RESALE PRICE WAS IN ITSELF ADEQUATE TO SUPPORT THE
FINDINGS THAT THE EFFECT OF SUCH PRICE DISCRIMINATIONS "MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION  ...  AND TO INJURE, DESTROY, AND
PREVENT COMPETITION."  P. 47. 

(B) THE EVIDENCE WAS ADEQUATE TO SUPPORT THE COMMISSION'S FINDINGS OF
REASONABLY POSSIBLE INJURY TO COMPETITION FROM RESPONDENT'S PRICE
DIFFERENTIALS BETWEEN COMPETING CARLOAD AND LESS-THAN-CARLOAD
PURCHASERS.  SUCH DISCOUNTS, LIKE ALL OTHERS, CAN BE JUSTIFIED BY A
SELLER WHO PROVES THAT THE FULL AMOUNT OF THE DISCOUNT IS BASED ON HIS
ACTUAL SAVINGS IN COST; BUT HERE THE RESPONDENT FAILED TO MAKE SUCH
PROOF.  PP. 47-48. 

(C)  THE FACT THAT RESPONDENT'S LESS-THAN-CARLOAD SALES ARE VERY
SMALL IN COMPARISON WITH THE TOTAL VOLUME OF ITS BUSINESS, AND THE FACT
THAT SALT IS A SMALL ITEM IN MOST WHOLESALE AND RETAIL BUSINESSES AND
IN CONSUMERS' BUDGETS, DO NOT REQUIRE REJECTION OF THE COMMISSION'S
FINDING THAT THE EFFECT OF THE CARLOAD DISCRIMINATION MAY SUBSTANTIALLY
LESSEN COMPETITION AND MAY INJURE COMPETITION BETWEEN PURCHASERS WHO
ARE GRANTED AND THOSE WHO ARE DENIED THIS DISCRIMINATORY DISCOUNT.  PP.
48-50. 

(D)  THE POSSIBILITY THAT ENFORCEMENT OF THE COMMISSION'S ORDER MIGHT
LEAD RESPONDENT TO INCREASE PRICES TO ITS CARLOAD PURCHASERS CANNOT
JUSTIFY REFUSAL OF THE REVIEWING COURT TO DECREE ENFORCEMENT.  P. 50. 

(E)  IT IS SELF-EVIDENT THAT THERE IS A "REASONABLE POSSIBILITY" THAT
COMPETITION MAY BE ADVERSELY AFFECTED BY A PRACTICE WHEREBY
MANUFACTURERS AND PRODUCERS SELL THEIR GOODS TO SOME CUSTOMERS
SUBSTANTIALLY CHEAPER THAN THEY SELL LIKE GOODS TO COMPETITORS OF SUCH
CUSTOMERS.  P. 50. 

7.  WITH THE EXCEPTION OF CERTAIN PROVISOS WHICH THIS COURT REJECTS,
THE CEASE-AND-DESIST ORDER OF THE COMMISSION IS SUSTAINED.  PP. 51-55. 

(A)  THE COMMISSION'S ORDER, SO FAR AS HERE APPROVED, IS SPECIFICALLY
AIMED AT THE PRICING PRACTICES FOUND UNLAWFUL, AND IS NEITHER TOO BROAD
NOR CONTRARY TO THE PRINCIPLE OF LABOR BOARD V. EXPRESS PUBLISHING CO.,
312 U.S. 426.  PP. 51-52. 

(B)  PROVISIONS OF THE ORDER WHICH FORBID RESPONDENT FROM SELLING ITS
PRODUCT, REGARDLESS OF QUANTITIES, TO SOME WHOLESALERS AND RETAILERS AT
A PRICE DIFFERENT FROM THAT WHICH IT CHARGED COMPETING WHOLESALERS AND
RETAILERS FOR THE SAME GRADE, ARE HERE APPROVED.  PP. 52-53. 

(C)  PROVISOS PERMITTING 5-CENTS-PER-CASE DIFFERENTIALS IF THEY DO
NOT "TEND TO LESSEN, INJURE, OR DESTROY COMPETITION" ARE HERE REJECTED
BECAUSE THE QUALIFYING CLAUSE TENDS TO SHIFT TO THE COURTS A
RESPONSIBILITY IN ENFORCEMENT PROCEEDINGS WHICH CONGRESS HAS PRIMARILY
ENTRUSTED TO THE COMMISSION.  PP. 53-55. 

(D)  SECTION 2(A) OF THE ACT AUTHORIZES A PROVISION OF THE ORDER
FORBIDDING SALES BY RESPONDENT TO ANY RETAILER AT PRICES LOWER THAN
THOSE CHARGED WHOLESALERS WHOSE CUSTOMERS COMPETE WITH SUCH RETAILER. 
P. 55. 

8.  ON REMAND OF THE CAUSE, THE COMMISSION SHOULD HAVE AN OPPORTUNITY
TO RECONSIDER THE PROVISOS IN ITS ORDER WHICH PERMIT 5-CENTS-PER-CASE
DIFFERENTIALS IN THE LIGHT OF THIS COURT'S REJECTION OF THE QUALIFYING
CLAUSES, AND TO REFASHION THESE PROVISOS AS MAY BE DEEMED NECESSARY. 
P. 55. 

FEDERAL TRADE COMMISSION V. MORTON SALT CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

A CEASE-AND-DESIST ORDER ISSUED BY THE FEDERAL TRADE COMMISSION IN A
PROCEEDING AGAINST RESPONDENT UNDER THE AMENDED CLAYTON ACT, TO
TERMINATE ALLEGED UNLAWFUL PRICE DISCRIMINATIONS, 39 F.T.C. 35, WAS SET
ASIDE BY THE CIRCUIT COURT OF APPEALS.  162 F.2D 949.  THIS COURT
GRANTED CERTIORARI.  332 U.S. 850.  REVERSED AND REMANDED, P. 55. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL TRADE COMMISSION, AFTER A HEARING, FOUND THAT THE
RESPONDENT, WHICH MANUFACTURES AND SELLS TABLE SALT IN INTERSTATE
COMMERCE, HAD DISCRIMINATED IN PRICE BETWEEN DIFFERENT PURCHASERS OF
LIKE GRADES AND QUALITIES, AND CONCLUDED THAT SUCH DISCRIMINATIONS WERE
IN VIOLATION OF SEC. 2 OF THE CLAYTON ACT, 38 STAT. 730, AS AMENDED BY
THE ROBINSON-PATMAN ACT, 49 STAT. 1526, 15 U.S.C. SEC. 13.  FN1  IT
ACCORDINGLY ISSUED A CEASE AND DESIST ORDER.  39 F.T.C. 35.  FN2  UPON
PETITION OF THE RESPONDENT THE CIRCUIT COURT OF APPEALS, WITH ONE JUDGE
DISSENTING, SET ASIDE THE COMMISSION'S FINDINGS AND ORDER, DIRECTED THE
COMMISSION TO DISMISS ITS COMPLAINT AGAINST RESPONDENT, AND DENIED A
CROSS PETITION OF THE COMMISSION FOR ENFORCEMENT OF ITS ORDER.  162
F.2D 949.  THE COURT'S JUDGMENT RESTED ON ITS CONSTRUCTION OF THE ACT,
ITS HOLDING THAT CRUCIAL FINDINGS OF THE COMMISSION WERE EITHER NOT
SUPPORTED BY EVIDENCE OR WERE CONTRARY TO THE EVIDENCE, AND ITS
CONCLUSION THAT THE COMMISSION'S ORDER WAS TOO BROAD.  SINCE QUESTIONS
OF IMPORTANCE IN THE CONSTRUCTION AND ADMINISTRATION OF THE ACT WERE
PRESENTED, WE GRANTED CERTIORARI.  332 U.S. 850.  DISPOSITION OF THESE
QUESTIONS REQUIRES ONLY A BRIEF NARRATION OF THE FACTS. 

RESPONDENT MANUFACTURES SEVERAL DIFFERENT BRANDS OF TABLE SALT  FN3
AND SELLS THEM DIRECTLY TO (1) WHOLESALERS OR JOBBERS, WHO IN TURN
RESELL TO THE RETAIL TRADE, AND (2) LARGE RETAILERS, INCLUDING CHAIN
STORE RETAILERS.  RESPONDENT SELLS ITS FINEST BRAND OF TABLE SALT,
KNOWN AS BLUE LABEL, ON WHAT IT TERMS A STANDARD QUANTITY DISCOUNT
SYSTEM AVAILABLE TO ALL CUSTOMERS.  UNDER THIS SYSTEM THE PURCHASERS
PAY A DELIVERED PRICE AND THE COST TO BOTH WHOLESALE AND RETAIL
PURCHASERS OF THIS BRAND DIFFERS ACCORDING TO THE QUANTITIES BOUGHT. 
THESE PRICES ARE AS FOLLOWS, AFTER MAKING ALLOWANCE FOR REBATES AND
DISCOUNTS:

                                            PER CASE 

LESS-THAN-CARLOAD PURCHASES.................................
$1.60 

CARLOAD PURCHASES...........................................
1.50 

5,000-CASE PURCHASES IN ANY CONSECUTIVE 12 MONTHS...........
1.40 

50,000-CASE PURCHASES IN ANY CONSECUTIVE 12 MONTHS..........
1.35 

ONLY FIVE COMPANIES HAVE EVER BOUGHT SUFFICIENT QUANTITIES OF
RESPONDENT'S SALT TO OBTAIN THE $1.35 PER CASE PRICE.  THESE COMPANIES
COULD BUY IN SUCH QUANTITIES BECAUSE THEY OPERATE LARGE CHAINS OF
RETAIL STORES IN VARIOUS PARTS OF THE COUNTRY.  FN4  AS A RESULT OF
THIS LOW PRICE THESE FIVE COMPANIES HAVE BEEN ABLE TO SELL BLUE LABEL
SALT AT RETAIL CHEAPER THAN WHOLESALE PURCHASERS FROM RESPONDENT COULD
REASONABLY SELL THE SAME BRAND OF SALT TO INDEPENDENTLY OPERATED RETAIL
STORES, MANY OF WHOM COMPETED WITH THE LOCAL OUTLETS OF THE FIVE CHAIN
STORES. 

RESPONDENT'S TABLE SALTS, OTHER THAN BLUE LABEL, ARE ALSO SOLD UNDER
A QUANTITY DISCOUNT SYSTEM DIFFERING SLIGHTLY FROM THAT USED IN SELLING
BLUE LABEL.  SALES OF THESE OTHER BRANDS IN LESS-THAN-CARLOAD LOTS ARE
MADE AT LIST PRICE PLUS FREIGHT FROM PLANT TO DESTINATION.  CARLOAD
PURCHASERS ARE GRANTED APPROXIMATELY A 5 PER CENT DISCOUNT;
APPROXIMATELY A 10 PER CENT DISCOUNT IS GRANTED TO PURCHASERS WHO BUY
AS MUCH AS $50,000 WORTH OF ALL BRANDS OF SALT IN ANY CONSECUTIVE
TWELVE-MONTH PERIOD.  RESPONDENT'S QUANTITY DISCOUNTS ON BLUE LABEL AND
ON OTHER TABLE SALTS WERE ENJOYED BY CERTAIN WHOLESALERS AND RETAILERS
WHO COMPETED WITH OTHER WHOLESALERS AND RETAILERS TO WHOM THESE
DISCOUNTS WERE REFUSED. 

IN ADDITION TO THESE STANDARD QUANTITY DISCOUNTS, SPECIAL ALLOWANCES
WERE GRANTED CERTAIN FAVORED CUSTOMERS WHO COMPETED WITH OTHER
CUSTOMERS TO WHOM THEY WERE DENIED.  FN5 

FIRST.  RESPONDENT'S BASIC CONTENTION, WHICH IT ARGUES THIS CASE
HINGES UPON, IS THAT ITS "STANDARD QUANTITY DISCOUNTS, AVAILABLE TO ALL
ON EQUAL TERMS, AS CONTRASTED, FOR EXAMPLE, TO HIDDEN OR SPECIAL
REBATES, ALLOWANCES, PRICES OR DISCOUNTS, ARE NOT DISCRIMINATORY WITHIN
THE MEANING OF THE ROBINSON-PATMAN ACT."  THEORETICALLY, THESE
DISCOUNTS ARE EQUALLY AVAILABLE TO ALL, BUT FUNCTIONALLY THEY ARE NOT. 
FOR AS THE RECORD INDICATES (IF REFERENCE TO IT ON THIS POINT WERE
NECESSARY) NO SINGLE INDEPENDENT RETAIL GROCERY STORE, AND PROBABLY NO
SINGLE WHOLESALER, BOUGHT AS MANY AS 50,000 CASES OR AS MUCH AS $50,000
WORTH OF TABLE SALT IN ONE YEAR.  FURTHERMORE, THE RECORD SHOWS THAT,
WHILE CERTAIN PURCHASERS WERE ENJOYING ONE OR MORE OF RESPONDENT'S
STANDARD QUANTITY DISCOUNTS, SOME OF THEIR COMPETITORS MADE PURCHASES
IN SUCH SMALL QUANTITIES THAT THEY COULD NOT QUALIFY FOR ANY OF
RESPONDENT'S DISCOUNTS, EVEN THOSE BASED ON CARLOAD SHIPMENTS.  THE
LEGISLATIVE HISTORY OF THE ROBINSON-PATMAN ACT MAKES IT ABUNDANTLY
CLEAR THAT CONGRESS CONSIDERED IT TO BE AN EVIL THAT A LARGE BUYER
COULD SECURE A COMPETITIVE ADVANTAGE OVER A SMALL BUYER SOLELY BECAUSE
OF THE LARGE BUYER'S QUANTITY PURCHASING ABILITY.  THE ROBINSON-PATMAN
ACT WAS PASSED TO DEPRIVE A LARGE BUYER OF SUCH ADVANTAGES EXCEPT TO
THE EXTENT THAT A LOWER PRICE COULD BE JUSTIFIED BY REASON OF A
SELLER'S DIMINISHED COSTS DUE TO QUANTITY MANUFACTURE, DELIVERY OR
SALE, OR BY REASON OF THE SELLER'S GOOD FAITH EFFORT TO MEET A
COMPETITOR'S EQUALLY LOW PRICE. 

NOTHING CONTAINED IN IT SHOULD PREVENT "DISCRIMINATION IN PRICE  ...
ON ACCOUNT OF DIFFERENCES IN THE GRADE, QUALITY, OR QUANTITY OF THE
COMMODITY SOLD, OR THAT MAKES ONLY DUE ALLOWANCE FOR DIFFERENCE IN THE
COST OF SELLING OR TRANSPORTATION ...  "  THAT SECTION HAS BEEN
CONSTRUED AS PERMITTING QUANTITY DISCOUNTS, SUCH AS THOSE HERE, WITHOUT
REGARD TO THE AMOUNT OF THE SELLER'S ACTUAL SAVINGS IN COST
ATTRIBUTABLE TO QUANTITY SALES OR QUANTITY DELIVERIES.  GOODYEAR TIRE &
RUBBER CO. V. FEDERAL TRADE COMM'N, 101 F.2D 620.  THE HOUSE COMMITTEE
REPORT ON THE ROBINSON-PATMAN ACT CONSIDERED THAT THE CLAYTON ACT'S
PROVISO ALLOWING QUANTITY DISCOUNTS SO WEAKENED SEC. 2 "AS TO RENDER IT
INADEQUATE, IF NOT ALMOST A NULLITY."  FN6  THE COMMITTEE CONSIDERED
THE PRESENT ROBINSON-PATMAN AMENDMENT TO SEC. 2 "OF GREAT IMPORTANCE." 
ITS PURPOSE WAS TO LIMIT "THE USE OF QUANTITY PRICE DIFFERENTIALS TO
THE SPHERE OF ACTUAL COST DIFFERENCES.  OTHERWISE," THE REPORT
CONTINUED, "SUCH DIFFERENTIALS WOULD BECOME INSTRUMENTS OF FAVOR AND
PRIVILEGE AND WEAPONS OF COMPETITIVE OPPRESSION."  FN7  THE SENATE
COMMITTEE REPORTING THE BILL EMPHASIZED THE SAME PURPOSE,  FN8  AS DID
THE CONGRESSMAN IN CHARGE OF THE CONFERENCE REPORT WHEN EXPLAINING IT
TO THE HOUSE JUST BEFORE FINAL PASSAGE.  FN9  AND IT WAS IN FURTHERANCE
OF THIS AVOWED PURPOSE - TO PROTECT COMPETITION FROM ALL PRICE
DIFFERENTIALS EXCEPT THOSE BASED IN FULL ON COST SAVINGS - THAT SEC.
2(A) OF THE AMENDMENT 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 FOREGOING REFERENCES, WITHOUT REGARD TO OTHERS WHICH COULD BE
MENTIONED, ESTABLISH THAT RESPONDENT'S STANDARD QUANTITY DISCOUNTS ARE
DISCRIMINATORY WITHIN THE MEANING OF THE ACT, AND ARE PROHIBITED BY IT
WHENEVER THEY HAVE THE DEFINED EFFECT ON COMPETITION.  SEE FEDERAL
TRADE COMM'N V. STALEY CO., 324 U.S. 746, 751. 

SECOND.  THE GOVERNMENT INTERPRETS THE OPINION OF THE CIRCUIT COURT
OF APPEALS AS HAVING HELD THAT IN ORDER TO ESTABLISH "DISCRIMINATION IN
PRICE" UNDER THE ACT THE BURDEN RESTED ON THE COMMISSION TO PROVE THAT
RESPONDENT'S QUANTITY DISCOUNT DIFFERENTIALS WERE NOT JUSTIFIED BY ITS
COST SAVINGS.  FN10  RESPONDENT DOES NOT SO UNDERSTAND THE COURT OF
APPEALS DECISION, AND FURTHERMORE ADMITS THAT NO SUCH BURDEN RESTS ON
THE COMMISSION.  WE AGREE THAT IT DOES NOT.  FIRST, THE GENERAL RULE OF
STATUTORY CONSTRUCTION THAT THE BURDEN OF PROVING JUSTIFICATION OR
EXEMPTION UNDER A SPECIAL EXCEPTION TO THE PROHIBITIONS OF A STATUTE
GENERALLY RESTS ON ONE WHO CLAIMS ITS BENEFITS,  FN11  REQUIRES THAT
RESPONDENT UNDERTAKE THIS PROOF UNDER THE PROVISO OF SEC. 2(A). 
SECONDLY, SEC. 2(B) OF THE ACT SPECIFICALLY IMPOSES THE BURDEN OF
SHOWING JUSTIFICATION UPON ONE WHO IS SHOWN TO HAVE DISCRIMINATED IN
PRICES.  AND THE SENATE COMMITTEE REPORT ON THE BILL EXPLAINED THAT THE
PROVISOS OF SEC. 2(A) THROW "UPON ANY WHO CLAIM THE BENEFIT OF THOSE
EXCEPTIONS THE BURDEN OF SHOWING THAT THEIR CASE FALLS WITHIN THEM." 
FN12  WE THINK THAT THE LANGUAGE OF THE ACT, AND THE LEGISLATIVE
HISTORY JUST CITED, SHOW THAT CONGRESS MEANT BY USING THE WORDS
"DISCRIMINATION IN PRICE" IN SEC. 2 THAT IN A CASE INVOLVING
COMPETITIVE INJURY BETWEEN A SELLER'S CUSTOMERS THE COMMISSION NEED
ONLY PROVE THAT A SELLER HAD CHARGED ONE PURCHASER A HIGHER PRICE FOR
LIKE GOODS THAN HE HAD CHARGED ONE OR MORE OF THE PURCHASER'S
COMPETITORS.  FN13 THIS CONSTRUCTION IS CONSISTENT WITH THE FIRST
SENTENCE OF SEC. 2(A) IN WHICH IT IS MADE UNLAWFUL "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  ...  AND WHERE THE EFFECT OF SUCH
DISCRIMINATION MAY BE  ...  TO INJURE, DESTROY, OR PREVENT COMPETITION
WITH ANY PERSON WHO EITHER GRANTS OR KNOWINGLY RECEIVES THE BENEFIT OF
SUCH DISCRIMINATION, OR WITH CUSTOMERS OF EITHER OF THEM:  ...  " 

THIRD.  IT IS ARGUED THAT THE FINDINGS FAIL TO SHOW THAT RESPONDENT'S
DISCRIMINATORY DISCOUNTS HAD IN FACT CAUSED INJURY TO COMPETITION. 
THERE ARE SPECIFIC FINDINGS THAT SUCH INJURIES HAD RESULTED FROM
RESPONDENT'S DISCOUNTS, ALTHOUGH THE STATUTE DOES NOT REQUIRE THE
COMMISSION TO FIND THAT INJURY HAS ACTUALLY RESULTED.  THE STATUTE
REQUIRES NO MORE THAN THAT THE EFFECT OF THE PROHIBITED PRICE
DISCRIMINATIONS "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION  ...  OR TO
INJURE, DESTROY, OR PREVENT COMPETITION."  AFTER A CAREFUL
CONSIDERATION OF THIS PROVISION OF THE ROBINSON-PATMAN ACT, WE HAVE
SAID THAT "THE STATUTE DOES NOT REQUIRE THAT THE DISCRIMINATIONS MUST
IN FACT HAVE HARMED COMPETITION, BUT ONLY THAT THERE IS A REASONABLE
POSSIBILITY THAT THEY 'MAY' HAVE SUCH AN EFFECT."  CORN PRODUCTS CO. V.
FEDERAL TRADE COMM'N, 324 U.S. 726, 742.  FN14  HERE THE COMMISSION
FOUND WHAT WOULD APPEAR TO BE OBVIOUS, THAT THE COMPETITIVE
OPPORTUNITIES OF CERTAIN MERCHANTS WERE INJURED WHEN THEY HAD TO PAY
RESPONDENT SUBSTANTIALLY MORE FOR THEIR GOODS THAN THEIR COMPETITORS
HAD TO PAY.  THE FINDINGS ARE ADEQUATE. 

FOURTH.  IT IS URGED THAT THE EVIDENCE IS INADEQUATE TO SUPPORT THE
COMMISSION'S FINDINGS OF INJURY TO COMPETITION.  FN15  AS WE HAVE
POINTED OUT, HOWEVER, THE COMMISSION IS AUTHORIZED BY THE ACT TO BAR
DISCRIMINATORY PRICES UPON THE "REASONABLE POSSIBILITY" THAT DIFFERENT
PRICES FOR LIKE GOODS TO COMPETING PURCHASERS MAY HAVE THE DEFINED
EFFECT ON COMPETITION.  FN16  THAT RESPONDENT'S QUANTITY DISCOUNTS DID
RESULT IN PRICE DIFFERENTIALS BETWEEN COMPETING PURCHASERS SUFFICIENT
IN AMOUNT TO INFLUENCE THEIR RESALE PRICES OF SALT WAS SHOWN BY
EVIDENCE.  THIS SHOWING IN ITSELF IS ADEQUATE TO SUPPORT THE
COMMISSION'S APPROPRIATE FINDINGS THAT THE EFFECT OF SUCH PRICE
DISCRIMINATIONS "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION  ...  AND
TO INJURE, DESTROY, AND PREVENT COMPETITION." 

THE ADEQUACY OF THE EVIDENCE TO SUPPORT THE COMMISSION'S FINDINGS OF
REASONABLY POSSIBLE INJURY TO COMPETITION FROM RESPONDENT'S PRICE
DIFFERENTIALS BETWEEN COMPETING CARLOAD AND LESS-THAN-CARLOAD
PURCHASERS IS SINGLED OUT FOR SPECIAL ATTACKS HERE.  IT IS SUGGESTED
THAT IN CONSIDERING THE ADEQUACY OF THE EVIDENCE TO SHOW INJURY TO
COMPETITION RESPONDENT'S CARLOAD DISCOUNTS AND ITS OTHER QUANTITY
DISCOUNTS SHOULD NOT BE TREATED ALIKE.  THE ARGUMENT IS THAT THERE IS
AN OBVIOUS SAVING TO A SELLER WHO DELIVERS GOODS IN CARLOAD LOTS. 
ASSUMING THIS TO BE TRUE, THAT FACT WOULD NOT TEND TO DISPROVE INJURY
TO THE MERCHANT COMPELLED TO PAY THE LESS-THAN-CARLOAD PRICE.  FOR A
TEN-CENT CARLOAD PRICE DIFFERENTIAL AGAINST A MERCHANT WOULD INJURE HIM
COMPETITIVELY JUST AS MUCH AS A TEN-CENT DIFFERENTIAL UNDER ANY OTHER
NAME.  HOWEVER RELEVANT THE SEPARATE CARLOAD ARGUMENT MIGHT BE TO THE
QUESTION OF JUSTIFYING A DIFFERENTIAL BY COST SAVINGS, IT HAS NO
RELEVANCY IN DETERMINING WHETHER THE DIFFERENTIAL WORKS AN INJURY TO A
COMPETITOR.  SINCE CONGRESS HAS NOT SEEN FIT TO GIVE CARLOAD DISCOUNTS
ANY FAVORED CLASSIFICATION WE CANNOT DO SO.  SUCH DISCOUNTS, LIKE ALL
OTHERS, CAN BE JUSTIFIED BY A SELLER WHO PROVES THAT THE FULL AMOUNT OF
THE DISCOUNT IS BASED ON HIS ACTUAL SAVINGS IN COST.  THE TROUBLE WITH
THIS PHASE OF RESPONDENT'S CASE IS THAT IT HAS THUS FAR FAILED TO MAKE
SUCH PROOF.    IT IS ALSO ARGUED THAT RESPONDENT'S LESS-THAN-CARLOAD
SALES ARE VERY SMALL IN COMPARISON WITH THE TOTAL VOLUME OF ITS
BUSINESS  FN17  AND FOR THAT REASON WE SHOULD REJECT THE COMMISSION'S
FINDING THAT THE EFFECT OF THE CARLOAD DISCRIMINATION MAY SUBSTANTIALLY
LESSEN COMPETITION AND MAY INJURE COMPETITION BETWEEN PURCHASERS WHO
ARE GRANTED AND THOSE WHO ARE DENIED THIS DISCRIMINATORY DISCOUNT.  TO
SUPPORT THIS ARGUMENT, REFERENCE IS MADE TO THE FACT THAT SALT IS A
SMALL ITEM IN MOST WHOLESALE AND RETAIL BUSINESSES AND IN CONSUMERS'
BUDGETS.  FOR SEVERAL REASONS WE CANNOT ACCEPT THIS CONTENTION. 
THERE ARE MANY ARTICLES IN A GROCERY STORE THAT, CONSIDERED SEPARATELY,
ARE COMPARATIVELY SMALL PARTS OF A MERCHANT'S STOCK.  CONGRESS INTENDED
TO PROTECT A MERCHANT FROM COMPETITIVE INJURY ATTRIBUTABLE TO
DISCRIMINATORY PRICES ON ANY OR ALL GOODS SOLD IN INTERSTATE COMMERCE,
WHETHER THE PARTICULAR GOODS CONSTITUTED A MAJOR OR MINOR PORTION OF
HIS STOCK.  SINCE A GROCERY STORE CONSISTS OF MANY COMPARATIVELY SMALL
ARTICLES, THERE IS NO POSSIBLE WAY EFFECTIVELY TO PROTECT A GROCER FROM
DISCRIMINATORY PRICES EXCEPT BY APPLYING THE PROHIBITIONS OF THE ACT TO
EACH INDIVIDUAL ARTICLE IN THE STORE. 

FURTHERMORE, IN ENACTING THE ROBINSON-PATMAN ACT, CONGRESS WAS
ESPECIALLY CONCERNED WITH PROTECTING SMALL BUSINESSES WHICH WERE UNABLE
TO BUY IN QUANTITIES, SUCH AS THE MERCHANTS HERE WHO PURCHASED IN LESS
THAN-CARLOAD LOTS.  TO THIS END IT UNDERTOOK TO STRENGTHEN THIS VERY
PHASE OF THE OLD CLAYTON ACT.  THE COMMITTEE REPORTS ON THE ROBINSON
PATMAN ACT EMPHASIZED A BELIEF THAT SEC. 2 OF THE CLAYTON ACT HAD "BEEN
TOO RESTRICTIVE, IN REQUIRING A SHOWING OF GENERAL INJURY TO
COMPETITIVE CONDITIONS  ...  "  THE NEW PROVISION, HERE CONTROLLING,
WAS INTENDED TO JUSTIFY A FINDING OF INJURY TO COMPETITION BY A SHOWING
OF "INJURY TO THE COMPETITOR VICTIMIZED BY THE DISCRIMINATION."  N18
SINCE THERE WAS EVIDENCE SUFFICIENT TO SHOW THAT THE LESS-THAN-CARLOAD
PURCHASERS MIGHT HAVE BEEN HANDICAPPED IN COMPETING WITH THE MORE
FAVORED CARLOAD PURCHASERS BY THE DIFFERENTIAL IN PRICE ESTABLISHED BY
RESPONDENT, THE COMMISSION WAS JUSTIFIED IN FINDING THAT COMPETITION
MIGHT HAVE THEREBY BEEN SUBSTANTIALLY LESSENED OR HAVE BEEN INJURED
WITHIN THE MEANING OF THE ACT. 

APPREHENSION IS EXPRESSED IN THIS COURT THAT ENFORCEMENT OF THE
COMMISSION'S ORDER AGAINST RESPONDENT'S CONTINUED VIOLATIONS OF THE
ROBINSON-PATMAN ACT MIGHT LEAD RESPONDENT TO RAISE TABLE SALT PRICES TO
ITS CARLOAD PURCHASERS.  SUCH A CONCEIVABLE, THOUGH, WE THINK, HIGHLY
IMPROBABLE, CONTINGENCY, COULD AFFORD US NO REASON FOR UPSETTING THE
COMMISSION'S FINDINGS AND DECLINING TO DIRECT COMPLIANCE WITH A STATUTE
PASSED BY CONGRESS. 

THE COMMISSION HERE WENT MUCH FURTHER IN RECEIVING EVIDENCE THAN THE
STATUTE REQUIRES.  IT HEARD TESTIMONY FROM MANY WITNESSES IN VARIOUS
PARTS OF THE COUNTRY TO SHOW THAT THEY HAD SUFFERED ACTUAL FINANCIAL
LOSSES ON ACCOUNT OF RESPONDENT'S DISCRIMINATORY PRICES.  EXPERTS WERE
OFFERED TO PROVE THE TENDENCY OF INJURY FROM SUCH PRICES.  THE EVIDENCE
COVERS ABOUT TWO THOUSAND PAGES, LARGELY DEVOTED TO THIS SINGLE ISSUE -
INJURY TO COMPETITION.  IT WOULD GREATLY HANDICAP EFFECTIVE ENFORCEMENT
OF THE ACT TO REQUIRE TESTIMONY TO SHOW THAT WHICH WE BELIEVE TO BE
SELF-EVIDENT, NAMELY, THAT THERE IS A "REASONABLE POSSIBILITY" THAT
COMPETITION MAY BE ADVERSELY AFFECTED BY A PRACTICE UNDER WHICH
MANUFACTURERS AND PRODUCERS SELL THEIR GOODS TO SOME CUSTOMERS
SUBSTANTIALLY CHEAPER THAN THEY SELL LIKE GOODS TO THE COMPETITORS OF
THESE CUSTOMERS.  THIS SHOWING IN ITSELF IS SUFFICIENT TO JUSTIFY OUR
CONCLUSION THAT THE COMMISSION'S FINDINGS OF INJURY TO COMPETITION WERE
ADEQUATELY SUPPORTED BY EVIDENCE. 

FIFTH.  THE CIRCUIT COURT OF APPEALS HELD, AND RESPONDENT HERE
CONTENDS, THAT THE ORDER WAS TOO SWEEPING, THAT IT REQUIRED THE
RESPONDENT TO "CONDUCT ITS BUSINESS GENERALLY AT ITS PERIL," AND THAT
THE COMMISSION HAD EXCEEDED ITS JURISDICTION IN ENTERING SUCH AN
ORDER.  FN19  RELIANCE FOR THIS CONTENTION CHIEFLY RESTS ON LABOR BOARD
V. EXPRESS PUBLISHING CO., 312 U.S. 426.  THAT CASE HELD THAT THE LABOR
BOARD COULD NOT BROADLY ENJOIN VIOLATIONS OF ALL THE PROVISIONS OF THE
STATUTE MERELY BECAUSE A SINGLE VIOLATION OF ONE OF THE ACT'S MANY
PROVISIONS HAD BEEN FOUND.  ID. AT 435-436.  BUT IT ALSO POINTED OUT
THAT THE LABOR BOARD, "HAVING FOUND THE ACTS WHICH CONSTITUTE THE
UNFAIR LABOR PRACTICE  ...  IS FREE TO RESTRAIN THE PRACTICE AND OTHER
LIKE OR RELATED UNLAWFUL ACTS."  IT THERE POINTED OUT THAT THIS COURT
HAD APPLIED A SIMILAR RULE TO A FEDERAL TRADE COMMISSION ORDER IN
FEDERAL TRADE COMM'N V. BEECH-NUT CO., 257 U.S. 441, 455.  IN THE
LATTER CASE THE COURT NOT ONLY APPROVED RESTRAINT OF THE UNLAWFUL PRICE
FIXING PRACTICES FOUND, BUT "ANY OTHER EQUIVALENT COOPERATIVE MEANS OF
ACCOMPLISHING THE MAINTENANCE OF PRICES FIXED BY THE COMPANY."  SEE
ALSO MAY DEP'T STORES CO. V. LABOR BOARD, 326 U.S. 376, 392-393.  WE
THINK THE COMMISSION'S ORDER HERE, SAVE FOR THE PROVISOS IN (A) AND (B)
LATER CONSIDERED, IS SPECIFICALLY AIMED AT THE PRICING PRACTICES FOUND
UNLAWFUL, AND THEREFORE DOES NOT RUN COUNTER TO THE HOLDING IN THE
EXPRESS PUBLISHING CO. CASE.  CERTAINLY THE ORDER IN ITS RELATION TO
THE CIRCUMSTANCES OF THIS CASE IS ONLY DESIGNED "TO PREVENT VIOLATIONS,
THE THREAT OF WHICH IN THE FUTURE IS INDICATED BECAUSE OF THEIR
SIMILARITY OR RELATION TO THOSE UNLAWFUL ACTS WHICH THE BOARD
(COMMISSION) HAS FOUND TO HAVE BEEN COMMITTED BY THE  ...  (RESPONDENT)
IN THE PAST."  LABOR BOARD V. EXPRESS PUBLISHING CO., SUPRA, 436-437. 

THE SPECIFIC RESTRAINTS OF PARAGRAPHS (A) AND (B) OF THE ORDER ARE
IDENTICAL, EXCEPT THAT ONE APPLIES TO PRICES RESPONDENT CHARGES
WHOLESALERS AND THE OTHER TO PRICES CHARGED RETAILERS.  IT IS SEEN THAT
THE FIRST PART OF THESE PARAGRAPHS, PRECEDING THE PROVISOS, WOULD
ABSOLUTELY BAR RESPONDENT FROM SELLING ITS TABLE SALT, REGARDLESS OF
QUANTITIES, TO SOME WHOLESALERS AND RETAILERS AT PRICES DIFFERENT FROM
THAT WHICH IT CHARGED COMPETING WHOLESALERS AND RETAILERS FOR THE SAME
GRADE OF SALT.  THE COMMISSION HAD FOUND THAT RESPONDENT HAD BEEN
CONTINUOUSLY ENGAGED IN SUCH DISCRIMINATIONS THROUGH THE USE OF
DISCOUNTS, REBATES AND ALLOWANCES.  IT HAD FURTHER FOUND THAT
RESPONDENT HAD FAILED TO SHOW JUSTIFICATION FOR THESE DIFFERENCES BY
REASON OF A CORRESPONDING DIFFERENCE IN ITS COSTS.  THUS THE RESTRAINTS
IMPOSED BY THE COMMISSION UPON RESPONDENT ARE CONCERNED WITH THE
PRECISE UNLAWFUL PRACTICES IN WHICH IT WAS FOUND TO HAVE ENGAGED FOR A
NUMBER OF YEARS.  TRUE, THE COMMISSION DID NOT MERELY PROHIBIT FUTURE
DISCOUNTS, REBATES, AND ALLOWANCES IN THE EXACT MATHEMATICAL
PERCENTAGES PREVIOUSLY UTILIZED BY RESPONDENT.  HAD THE ORDER DONE NO
MORE THAN THAT, RESPONDENT COULD HAVE CONTINUED SUBSTANTIALLY THE SAME
UNLAWFUL PRACTICES DESPITE THE ORDER BY SIMPLY ALTERING THE DISCOUNT
PERCENTAGES AND THE QUANTITIES OF SALT TO WHICH THE PERCENTAGES
APPLIED.  PARAGRAPHS (A) AND (B) UP TO THE LANGUAGE OF THE PROVISOS ARE
APPROVED. 

THE PROVISOS IN (A) AND (B) PRESENT A MORE DIFFICULT PROBLEM.  THEY
READ:  "PROVIDED, HOWEVER, THAT THIS SHALL NOT PREVENT PRICE
DIFFERENCES OF LESS THAN FIVE CENTS PER CASE WHICH DO NOT TEND TO
LESSEN, INJURE, OR DESTROY COMPETITION AMONG SUCH WHOLESALERS
(RETAILERS)."  THE FIRST CLAUSE OF THE PROVISOS, BUT FOR THE SECOND
QUALIFYING CLAUSE, WOULD UNEQUIVOCALLY PERMIT RESPONDENT TO MAINTAIN
PRICE DIFFERENTIALS OF LESS THAN FIVE CENTS AS BETWEEN COMPETING
WHOLESALERS AND AS BETWEEN COMPETING RETAILERS.  FN20  THIS CLAUSE
WOULD APPEAR TO BENEFIT RESPONDENT, AND NO CHALLENGE TO IT, STANDING
ALONE, IS HERE RAISED.  BUT RESPONDENT SERIOUSLY OBJECTS TO THE SECOND
CLAUSE OF THE PROVISO WHICH QUALIFIES THE PERMISSIVE LESS-THAN-FIVE
CENT DIFFERENTIALS PROVIDED IN THE FIRST CLAUSE.  THAT QUALIFICATION
PERMITS SUCH DIFFERENTIALS ONLY IF THEY DO "NOT TEND TO LESSEN, INJURE,
OR DESTROY COMPETITION."  RESPONDENT POINTS OUT THAT WHERE A
DIFFERENTIAL TENDS IN NO WAY TO INJURE COMPETITION, THE ACT PERMITS IT.
"THE COMMISSION," SO RESPONDENT URGES, "MUST EITHER FIND AND RULE THAT
A GIVEN DIFFERENTIAL INJURES COMPETITION, AND THEN PROHIBIT IT, OR IT
MUST LEAVE THAT DIFFERENTIAL ENTIRELY ALONE."  WHETHER, AND UNDER WHAT
CIRCUMSTANCES, IF ANY, THE COMMISSION MIGHT PROHIBIT DIFFERENTIALS
WHICH DO NOT OF THEMSELVES TEND TO INJURE COMPETITION, WE NEED NOT
DECIDE, FOR THE COMMISSION HAS NOT IN EITHER (A) OR (B) TAKEN ACTION
WHICH FORBIDS SUCH NONINJURIOUS DIFFERENTIALS.  BUT OTHER OBJECTIONS
RAISED TO THE QUALIFYING CLAUSES REQUIRE CONSIDERATION. 

ONE OF THE REASONS FOR ENTRUSTING ENFORCEMENT OF THIS ACT PRIMARILY
TO THE COMMISSION, A BODY OF EXPERTS, WAS TO AUTHORIZE IT TO HEAR
EVIDENCE AS TO GIVEN DIFFERENTIAL PRACTICES AND TO MAKE FINDINGS
CONCERNING POSSIBLE INJURY TO COMPETITION.  SUCH FINDINGS ARE TO FORM
THE BASIS FOR CEASE AND DESIST ORDERS DEFINITELY RESTRAINING THE
PARTICULAR DISCRIMINATORY PRACTICES WHICH MAY TEND TO INJURE
COMPETITION WITHOUT JUSTIFICATION.  THE EFFECTIVE ADMINISTRATION OF THE
ACT, INSOFAR AS THE ACT ENTRUSTS ADMINISTRATION TO THE COMMISSION,
WOULD BE GREATLY IMPAIRED IF, WITHOUT COMPELLING REASONS NOT HERE
PRESENT, THE COMMISSION'S CEASE AND DESIST ORDERS DID NO MORE THAN
SHIFT TO THE COURTS IN SUBSEQUENT CONTEMPT PROCEEDINGS FOR THEIR
VIOLATION THE VERY FACT QUESTIONS OF INJURY TO COMPETITION, ETC., WHICH
THE ACT REQUIRES THE COMMISSION TO DETERMINE AS THE BASIS FOR ITS
ORDER.  THE ENFORCEMENT RESPONSIBILITY OF THE COURTS, ONCE A COMMISSION
ORDER HAS BECOME FINAL EITHER BY LAPSE OF TIME OR BY COURT APPROVAL, 15
U.S.C. SECS. 21, 45, IS TO ADJUDICATE QUESTIONS CONCERNING THE ORDER'S
VIOLATION, NOT QUESTIONS OF FACT WHICH SUPPORT THAT VALID ORDER. 

WHETHER ON THIS RECORD THE COMMISSION WAS COMPELLED TO EXEMPT CERTAIN
DIFFERENTIALS OF LESS THAN FIVE CENTS WE DO NOT DECIDE.  BUT ONCE THE
COMMISSION EXEMPTED THE DIFFERENTIALS IN QUESTION FROM ITS ORDER, WE
ARE CONSTRAINED TO HOLD THAT AS TO THOSE DIFFERENTIALS IT COULD NOT
THEN SHIFT TO THE COURTS A RESPONSIBILITY IN ENFORCEMENT PROCEEDINGS OF
TRYING ISSUES OF POSSIBLE INJURY TO COMPETITION, ISSUES WHICH CONGRESS
HAS PRIMARILY ENTRUSTED TO THE COMMISSION. 

THIS LEAVES FOR CONSIDERATION THE OBJECTION TO PARAGRAPH (C) OF THE
ORDER WHICH READS:  "BY SELLING SUCH PRODUCTS TO ANY RETAILER AT PRICES
LOWER THAN PRICES CHARGED WHOLESALERS WHOSE CUSTOMERS COMPETE WITH SUCH
RETAILER."  THE ONLY CRITICISM HERE URGED TO (C) IS THAT IT BARS
RESPONDENT FROM SELLING TO A RETAILER AT A PRICE LOWER THAN THAT
CHARGED A WHOLESALER WHOSE CUSTOMERS COMPETE WITH THE RETAILER. 
DISCRIMINATORY PRICES WHICH TEND TO LESSEN OR INJURE COMPETITION WITH
"ANY PERSON WHO EITHER GRANTS OR KNOWINGLY RECEIVES THE BENEFIT OF SUCH
DISCRIMINATION, OR WITH CUSTOMERS OF EITHER OF THEM."  THIS PROVISION
PLAINLY SUPPORTS PARAGRAPH (C) OF THE ORDER. 

WE SUSTAIN THE COMMISSION'S ORDER WITH THE EXCEPTION OF THE PROVISOS
IN PARAGRAPHS (A) AND (B) PREVIOUSLY SET OUT.  SINCE THE QUALIFYING
CLAUSES CONSTITUTE AN IMPORTANT LIMITATION TO THE PROVISOS, WE THINK
THE COMMISSION SHOULD HAVE AN OPPORTUNITY TO RECONSIDER THE ENTIRE
PROVISOS IN LIGHT OF OUR REJECTION OF THE QUALIFYING CLAUSES, AND TO
REFASHION THESE PROVISOS AS MAY BE DEEMED NECESSARY.  THIS THE
COMMISSION MAY DO UPON THE PRESENT EVIDENCE AND FINDINGS OR IT MAY HEAR
OTHER EVIDENCE AND MAKE OTHER FINDINGS ON THIS PHASE OF THE CASE,
SHOULD IT CONCLUDE TO DO SO.  SEE FEDERAL TRADE COMM'N V. ROYAL MILLING
CO., 288 U.S. 212, 218. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
PROCEEDINGS ARE REMANDED TO THAT COURT TO BE DISPOSED OF IN CONFORMITY
WITH THIS OPINION.  REVERSED. 

FN1  SECTION 2(A) PROVIDES IN PART:  "IT SHALL BE UNLAWFUL FOR ANY
PERSON ENGAGED IN COMMERCE, IN THE COURSE OF SUCH COMMERCE, EITHER
DIRECTLY OR INDIRECTLY, TO DISCRIMINATE IN PRICE BETWEEN DIFFERENT
PURCHASERS OF COMMODITIES OF LIKE GRADE AND QUALITY, WHERE EITHER OR
ANY OF THE PURCHASES INVOLVED IN SUCH DISCRIMINATION ARE IN COMMERCE,
WHERE SUCH COMMODITIES ARE SOLD FOR USE, CONSUMPTION, OR RESALE WITHIN
THE UNITED STATES OR ANY TERRITORY THEREOF OR THE DISTRICT OF COLUMBIA
OR ANY INSULAR POSSESSION OR OTHER PLACE UNDER THE JURISDICTION OF THE
UNITED STATES, AND WHERE THE EFFECT OF SUCH DISCRIMINATION MAY BE
SUBSTANTIALLY TO LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY
LINE OF COMMERCE, OR TO INJURE, DESTROY, OR PREVENT COMPETITION WITH
ANY PERSON WHO EITHER GRANTS OR KNOWINGLY RECEIVES THE BENEFIT OF SUCH
DISCRIMINATION, OR WITH CUSTOMERS OF EITHER OF THEM  ...  " 

FN2  THE ORIGINAL FINDINGS AND ORDER WERE MODIFIED BY THE COMMISSION
ON ITS OWN MOTION.  THE CONTROVERSY HERE DEALS ONLY WITH THE FINDINGS
AND ORDER AS MODIFIED. 

FN3  RESPONDENT ALSO PRODUCES AND SELLS OTHER KINDS OF SALT, BUT THE
TRADE PRACTICES HERE INVOLVED ONLY RELATE TO TABLE SALT. 

FN4  THESE CHAIN STORES ARE AMERICAN STORES COMPANY, NATIONAL TEA
COMPANY, KROGER GROCERY CO., SAFEWAY STORES, INC., AND GREAT ATLANTIC &
PACIFIC TEA COMPANY. 

FN5  ONE SUCH CUSTOMER, A WHOLESALER, RECEIVED A SPECIAL DISCOUNT OF
7 1/2 CENTS PER CASE ON PURCHASES OF CARLOAD LOTS OF BLUE LABEL SALT. 
RESPONDENT SOLD TO THIS WHOLESALER AT $1.42 1/2 PER CASE, ALTHOUGH
COMPETING WHOLESALERS WERE REQUIRED TO PAY $1.50 PER CASE ON CARLOAD
LOTS.  THE CIRCUIT COURT OF APPEALS HELD THAT FINDINGS OF THE
COMMISSION ON THESE SPECIAL ALLOWANCES WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE, THAT THEY WERE NOT MAINTAINED TO MEET LOWER PRICES OF
RESPONDENT'S COMPETITORS, AND THAT THE ALLOWANCES WERE DISCRIMINATORY. 
IT NEVERTHELESS SET THE FINDINGS ASIDE ON THE GROUND THAT THE
COMMISSION'S FINDING OF INJURY TO COMPETITION FROM THE DISCRIMINATIONS
ENGAGED IN BY RESPONDENT WAS TOO GENERAL AND HAD LITTLE EVIDENCE TO
SUPPORT IT. WE THINK THE FINDING AND SUPPORTING EVIDENCE OF INJURY TO
COMPETITION ON ACCOUNT OF THESE SPECIAL ALLOWANCES ARE SIMILAR TO THE
FINDING AND EVIDENCE WITH REFERENCE TO THE QUANTITY DISCOUNT SYSTEM AND
NEED NOT BE SEPARATELY TREATED.    FN6  H.R. REP. NO. 2287, 74TH CONG.,
2D SESS. 7. 

FN7  ID. AT 9. 

FN8  SEN. REP. NO. 1502, 74TH CONG., 2D SESS. 4-6. 

FN9  80 CONG. REC. 9417.    FN10  SEE 42 ILL. L. REV. 556-561; 15 U.
OF CHI.  L. REV. 384-391; 60 HARV. L. REV. 1167-1169. 

FN11  JAVIERRE V. CENTRAL ALTAGRACIA, 217 U.S. 502, 507-508 AND CASES
CITED. 

FN12  SEN. REP. NO. 1502, 74TH CONG., 2D SESS. 3.  SEE ALSO 80 CONG.
REC. 3599, 8241, 9418. 

FN13  SEE MOSS, INC. V. FEDERAL TRADE COMM'N, 148 F.2D 378, 379,
HOLDING THAT PROOF OF A PRICE DIFFERENTIAL IN ITSELF CONSTITUTED
"DISCRIMINATION IN PRICE," WHERE THE COMPETITIVE INJURY IN QUESTION WAS
BETWEEN SELLERS.  SEE ALSO FEDERAL TRADE COMM'N V. CEMENT INSTITUTE,
333 U.S. 683, 721-726. 

FN14  THIS LANGUAGE IS TO BE READ ALSO IN THE LIGHT OF THE FOLLOWING
STATEMENT IN THE SAME CASE, DISCUSSING THE MEANING OF SEC. 2(A), AS
CONTAINED IN THE ROBINSON-PATMAN ACT, IN RELATION TO SEC. 3 OF THE
CLAYTON ACT: 

"IT IS TO BE OBSERVED THAT SEC. 2(A) DOES NOT REQUIRE A FINDING THAT
THE DISCRIMINATIONS IN PRICE HAVE IN FACT HAD AN ADVERSE EFFECT ON
COMPETITION.  THE STATUTE IS DESIGNED TO REACH SUCH DISCRIMINATIONS 'IN
THEIR INCIPIENCY,' BEFORE THE HARM TO COMPETITION IS EFFECTED.  IT IS
ENOUGH THAT THEY 'MAY' HAVE THE PRESCRIBED EFFECT.  CF. STANDARD
FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346, 356-357.  BUT AS WAS
HELD IN THE STANDARD FASHION CASE, SUPRA, WITH RESPECT TO THE LIKE
PROVISIONS OF SEC. 3 OF THE CLAYTON ACT, PROHIBITING TYING CLAUSE
AGREEMENTS, THE EFFECT OF WHICH 'MAY BE TO SUBSTANTIALLY LESSEN
COMPETITION,' THE USE OF THE WORD 'MAY' WAS NOT TO PROHIBIT
DISCRIMINATIONS HAVING 'THE MERE POSSIBILITY' OF THOSE CONSEQUENCES,
BUT TO REACH THOSE WHICH WOULD PROBABLY HAVE THE DEFINED EFFECT ON
COMPETITION."  324 U.S. AT 738; SEE ALSO UNITED STATES V. LEXINGTON
MILL CO., 232 U.S. 399, 411. 

THE COMMITTEE REPORTS AND CONGRESSIONAL DEBATE ON THIS PROVISION OF
THE ROBINSON-PATMAN ACT INDICATE THAT IT WAS INTENDED TO HAVE A BROADER
SCOPE THAN THE CORRESPONDING PROVISION OF THE OLD CLAYTON ACT.  SEE
NOTE 18 INFRA. 

FN15  AFTER DISCUSSING ALL OF RESPONDENT'S DISCRIMINATIONS, THE
COMMISSION STATED:  "THE COMMISSION FINDS THAT THE EFFECT OF THE
DISCRIMINATIONS IN PRICE, INCLUDING DISCOUNTS, REBATES, AND ALLOWANCES,
GENERALLY AND SPECIFICALLY DESCRIBED HEREIN MAY BE SUBSTANTIALLY TO
LESSEN COMPETITION IN THE LINE OF COMMERCE IN WHICH THE PURCHASER
RECEIVING THE BENEFIT OF SAID DISCRIMINATORY PRICE IS ENGAGED AND TO
INJURE, DESTROY, AND PREVENT COMPETITION BETWEEN THOSE PURCHASERS
RECEIVING THE BENEFIT OF SAID DISCRIMINATORY PRICES, DISCOUNTS,
REBATES, AND ALLOWANCES AND THOSE TO WHOM THEY ARE DENIED." 

FN16  THE STATUTE OUTLAWS ANY DISCRIMINATION THE EFFECT OF WHICH "MAY
BE SUBSTANTIALLY TO LESSEN COMPETITION  ...  OR TO INJURE  ...
COMPETITION WITH ANY PERSON WHO EITHER GRANTS OR KNOWINGLY RECEIVES THE
BENEFIT OF SUCH DISCRIMINATION, OR WITH CUSTOMERS OF EITHER OF THEM:
...  " 

FN17  RESPONDENT INTRODUCED TESTIMONY AND EXHIBITS INTENDED TO SHOW
THAT ONLY ONE-TENTH OF ONE PER CENT OF ITS SALES WERE MADE AT LESS-THAN
CARLOAD PRICES.  IT APPEARS THAT THIS FIGURE RELATES ONLY TO A SINGLE
ONE-YEAR PERIOD AND WAS OBTAINED BY LUMPING TOGETHER STATISTICS ON
RESPONDENT'S SALES OF TABLE SALT ALONG WITH THOSE ON SALES OF ITS OTHER
PRODUCTS, SUCH AS SALT TABLETS, COARSE ROCK SALT, AND SAL SODA.  SINCE
THIS PROCEEDING IS CONCERNED ONLY WITH DISCOUNTS ON TABLE SALTS, THESE
FIGURES ARE OF DUBIOUS VALUE.  FURTHERMORE, THEY ARE LIMITED TO SALES
IN RESPONDENT'S CHICAGO AREA, WHEREAS RESPONDENT CARRIED ON A NATION
WIDE BUSINESS. 

FN18  IN EXPLAINING THIS CLAUSE OF THE PROPOSED ROBINSON-PATMAN ACT,
THE SENATE JUDICIARY COMMITTEE SAID: 

"THIS CLAUSE REPRESENTS A RECOMMENDED ADDITION TO THE BILL AS
REFERRED TO YOUR COMMITTEE.  IT TENDS TO EXCLUDE FROM THE BILL
OTHERWISE HARMLESS VIOLATIONS OF ITS LETTER, BUT ACCOMPLISHES A
SUBSTANTIAL BROADENING OF A SIMILAR CLAUSE NOW CONTAINED IN SECTION 2
OF THE CLAYTON ACT.  THE LATTER HAS IN PRACTICE BEEN TOO RESTRICTIVE,
IN REQUIRING A SHOWING OF GENERAL INJURY TO COMPETITIVE CONDITIONS IN
THE LINE OF COMMERCE CONCERNED; WHEREAS THE MORE IMMEDIATELY IMPORTANT
CONCERN IS IN INJURY TO THE COMPETITOR VICTIMIZED BY THE
DISCRIMINATION.  ONLY THROUGH SUCH INJURIES, IN FACT, CAN THE LARGER
GENERAL INJURY RESULT, AND TO CATCH THE WEED IN THE SEED WILL KEEP IT
FROM COMING TO FLOWER."  S. REP. NO. 1502, 74TH CONG., 2D SESS. 4.  SEE
ALSO H.R. REP. NO. 2287, 74TH CONG., 2D SESS. 8; 80 CONG. REC. 9417. 

FN19  THE PROHIBITING PARAGRAPHS OF THE ORDER WERE: 

"(A)  BY SELLING SUCH PRODUCTS TO SOME WHOLESALERS THEREOF AT PRICES
DIFFERENT FROM THE PRICES CHARGED OTHER WHOLESALERS WHO IN FACT COMPETE
IN THE SALE AND DISTRIBUTION OF SUCH PRODUCTS; PROVIDED, HOWEVER, THAT
THIS SHALL NOT PREVENT PRICE DIFFERENCES OF LESS THAN FIVE CENTS PER
CASE WHICH DO NOT TEND TO LESSEN, INJURE, OR DESTROY COMPETITION AMONG
SUCH WHOLESALERS. 

"(B)  BY SELLING SUCH PRODUCTS TO SOME RETAILERS THEREOF AT PRICES
DIFFERENT FROM THE PRICES CHARGED OTHER RETAILERS WHO IN FACT COMPETE
IN THE SALE AND DISTRIBUTION OF SUCH PRODUCTS; PROVIDED, HOWEVER, THAT
THIS SHALL NOT PREVENT PRICE DIFFERENCES OF LESS THAN FIVE CENTS PER
CASE WHICH DO NOT TEND TO LESSEN, INJURE, OR DESTROY COMPETITION AMONG
SUCH RETAILERS. 

"(C)  BY SELLING SUCH PRODUCTS TO ANY RETAILER AT PRICES LOWER THAN
PRICES CHARGED WHOLESALERS WHOSE CUSTOMERS COMPETE WITH SUCH RETAILER. 

"FOR THE PURPOSES OF COMPARISON, THE TERM 'PRICE' AS USED IN THIS
ORDER TAKES INTO ACCOUNT DISCOUNTS, REBATES, ALLOWANCES, AND OTHER
TERMS AND CONDITIONS OF SALE." 

FN20  THE ONLY FINDING OF THE COMMISSION SPECIFICALLY RELATING TO
FIVE-CENT DIFFERENTIALS WAS: "SALT IS A STAPLE COMMODITY WITH A MEDIUM
TURNOVER AND IS GENERALLY SOLD BY WHOLESALERS TO THEIR RETAIL CUSTOMERS
ON A LOWER MARGIN OF PROFIT THAN THAT RECEIVED ON OTHER COMMODITIES. 
CONSEQUENTLY, THE PRICE AT WHICH THE WHOLESALER OFFERS HIS TABLE SALT
IS USUALLY CONTROLLING, AND A DIFFERENCE OF FIVE CENTS PER CASE MAY
RESULT IN THE LOSS OF A SALE TO A CUSTOMER, NOT ONLY OF THE SALT
INVOLVED BUT OF OTHER COMMODITIES AS WELL, THE ORDER FOR WHICH MIGHT BE
PLACED WITH THE SALE PURCHASE." 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
DISSENTING IN PART. 

WHILE I AGREE WITH MUCH OF THE COURT'S OPINION, I CANNOT ACCEPT ITS
MOST SIGNIFICANT FEATURE, WHICH IS A NEW INTERPRETATION OF THE ROBINSON
PATMAN ACT THAT WILL SANCTION PROHIBITION OF ANY DISCOUNTS IF "THERE IS
A REASONABLE POSSIBILITY THAT THEY 'MAY' HAVE" THE EFFECT TO WIT:  TO
LESSEN, INJURE, DESTROY OR PREVENT COMPETITION.  I THINK THE LAW AS
WRITTEN BY THE CONGRESS AND AS ALWAYS INTERPRETED BY THIS COURT
REQUIRES THAT THE RECORD SHOW A REASONABLE PROBABILITY OF THAT EFFECT. 
THE DIFFERENCE, AS EVERY LAWYER KNOWS, IS NOT UNIMPORTANT AND IN MANY
CASES WOULD BE DECISIVE. 

THE LAW RARELY AUTHORIZES JUDGMENTS ON PROOF OF MERE POSSIBILITIES. 
AFTER CAREFUL CONSIDERATION THIS COURT HAS, AT LEAST THREE TIMES AND AS
LATE AS 1945, REFUSED TO INTERPRET THESE LAWS AS DOING SO.  IN 1922, IN
STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346, AT 356, A
UNANIMOUS COURT, CONSTRUING LIKE LANGUAGE IN SEC. 3 OF THE CLAYTON ACT,
SAID:  "BUT WE DO NOT THINK THAT THE PURPOSE IN USING THE WORD 'MAY'
WAS TO PROHIBIT THE MERE POSSIBILITY OF THE CONSEQUENCES DESCRIBED.  IT
WAS INTENDED TO PREVENT SUCH AGREEMENTS AS WOULD UNDER THE
CIRCUMSTANCES DISCLOSED PROBABLY LESSEN COMPETITION, OR CREATE AN
ACTUAL TENDENCY TO MONOPOLY." 

IN 1930, IN INTERNATIONAL SHOE COMPANY V. FEDERAL TRADE COMMISSION,
280 U.S. 291, THE COURT SAID (AT P. 298) WITH RESPECT TO IDENTICAL
LANGUAGE IN SEC. 7 OF THE CLAYTON ACT:  "  ... THE ACT DEALS ONLY WITH
SUCH ACQUISITIONS AS PROBABLY WILL RESULT IN LESSENING COMPETITION TO A
SUBSTANTIAL DEGREE, STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258
U.S. 346, 357  ...  "  AND MR. JUSTICE STONE WROTE FOR THE DISSENTING
JUSTICES (280 U.S. 306):  "NOR AM I ABLE TO SAY THAT THE MCELWAIN
COMPANY  ... WAS THEN IN SUCH FINANCIAL STRAITS AS TO PRECLUDE THE
REASONABLE INFERENCE BY THE COMMISSION THAT ITS BUSINESS  ...  WOULD
PROBABLY CONTINUE TO COMPETE WITH THAT OF PETITIONER.  SEE STANDARD
FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346, 356-357." 

WITH THESE INTERPRETATIONS ON OUR BOOKS THE ROBINSON-PATMAN ACT WAS
PASSED. 

WHEN THE LATTER ACT CAME BEFORE THIS COURT IN 1945, THIS SAME
QUESTION WAS CAREFULLY CONSIDERED AND CHIEF JUSTICE STONE, WITH THE
CONCURRENCE OF ALL BUT TWO MEMBERS OF THE COURT AND WITH NO
DISAGREEMENT NOTED ON THIS POINT, WROTE: 

"IT IS TO BE OBSERVED THAT SEC. 2(A) DOES NOT REQUIRE A FINDING THAT
THE DISCRIMINATIONS IN PRICE HAVE IN FACT HAD AN ADVERSE EFFECT ON
COMPETITION.  THE STATUTE IS DESIGNED TO REACH SUCH DISCRIMINATIONS 'IN
THEIR INCIPIENCY,' BEFORE THE HARM TO COMPETITION IS EFFECTED.  IT IS
ENOUGH THAT THEY 'MAY' HAVE THE PRESCRIBED EFFECT.  CF. STANDARD
FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346, 356-357.  BUT AS WAS
HELD IN THE STANDARD FASHION CASE, SUPRA, WITH RESPECT TO THE LIKE
PROVISIONS OF SEC. 3 OF THE CLAYTON ACT, PROHIBITING TYING CLAUSE
AGREEMENTS, THE EFFECT OF WHICH 'MAY BE TO SUBSTANTIALLY LESSEN
COMPETITION,' THE USE OF THE WORD 'MAY' WAS NOT TO PROHIBIT
DISCRIMINATIONS HAVING 'THE MERE POSSIBILITY' OF THOSE CONSEQUENCES,
BUT TO REACH THOSE WHICH WOULD PROBABLY HAVE THE DEFINED EFFECT ON
COMPETITION."  CORN PRODUCTS COMPANY V. FEDERAL TRADE COMMISSION, 324
U.S. 726, 738. 

IT IS TRUE THAT LATER (324 U.S. AT 742) THE OPINION USES THE LANGUAGE
AS TO POSSIBILITY OF INJURY NOW QUOTED IN PART  FN1  BY THE COURT AS
THE HOLDING OF THAT CASE.  BUT THE PHRASE APPEARS IN SUCH FORM AND
CONTEXT AND IS SO IRRECONCILABLE WITH THE EARLIER CAREFUL AND COMPLETE
STATEMENT, SET OUT ABOVE, THAT THE INCONSISTENCY MUST APPEAR TO A FAIR
READER AS ONE OF THOSE INADVERTENCIES INTO WHICH THE MOST CAREFUL
JUDGES SOMETIMES FALL.  IT IS THE ONLY AUTHORITY FOR MAKING A THRICE
REJECTED RULE OF INTERPRETATION A PREVAILING ONE.  I KNOW OF NO OTHER
INSTANCE IN WHICH THIS COURT HAS EVER HELD THAT ADMINISTRATIVE ORDERS
APPLYING DRASTIC REGULATION OF BUSINESS PRACTICES MAY HANG ON SO
SLENDER A THREAD OF INFERENCE. 

THE COURT USES OVERTONES OF HOSTILITY TO ALL QUANTITY DISCOUNTS,
WHICH I DO NOT FIND IN THE ACT, BUT THEY ARE TRANSLATED INTO A RULE
WHICH IS FATAL TO ANY DISCOUNT THE COMMISSION SEES FIT TO ATTACK.  TO
SAY IT IS THE LAW THAT THE COMMISSION MAY STRIKE DOWN ANY DISCOUNT
"UPON THE 'REASONABLE POSSIBILITY' THAT DIFFERENT PRICES FOR LIKE GOODS
TO COMPETING PURCHASERS MAY" SUBSTANTIALLY INJURE COMPETITION, COUPLED
WITH THE ALMOST ABSOLUTE SUBSERVIENCE OF JUDICIAL JUDGMENT TO
ADMINISTRATIVE EXPERIENCE, CF. SECURITIES & EXCHANGE COMMISSION V.
CHENERY CORP., 332 U.S. 194, MEANS THAT JUDICIAL REVIEW IS A WORD OF
PROMISE TO THE EAR TO BE BROKEN TO THE HOPE.  THE LAW OF THIS CASE, IN
A NUTSHELL, IS THAT NO QUANTITY DISCOUNT IS VALID IF THE COMMISSION
CHOOSES TO SAY IT IS NOT.  THAT IS NOT THE LAW WHICH CONGRESS ENACTED
AND WHICH THIS COURT HAS UNIFORMLY STATED UNTIL TODAY. 

THE ROBINSON-PATMAN ACT ITSELF, INSOFAR AS IT RELATES TO QUANTITY
DISCOUNTS, SEEMS TO ME, ON ITS FACE AND IN LIGHT OF ITS HISTORY, TO
STRIVE FOR TWO RESULTS, BOTH OF WHICH SHOULD BE KEPT IN MIND WHEN
INTERPRETING IT. 

ON THE ONE HAND, IT RECOGNIZES THAT THE QUANTITY DISCOUNT MAY BE
UTILIZED ARBITRARILY AND WITHOUT JUSTIFICATION IN SAVINGS EFFECTED BY
QUANTITY SALES, TO GIVE A DISCRIMINATORY ADVANTAGE TO LARGE BUYERS OVER
SMALL ONES.  THIS EVIL IT WOULD PROHIBIT.  ON THE OTHER HAND, IT
RECOGNIZES THAT A BUSINESS PRACTICE SO OLD AND GENERAL IS NOT WITHOUT
SOME BASIS IN REASON, THAT MUCH THAT WE CALL OUR STANDARD OF LIVING IS
DUE TO THE WIDE AVAILABILITY OF LOW-PRICED GOODS, MADE POSSIBLE BY MASS
PRODUCTION AND QUANTITY DISTRIBUTION, AND HENCE THAT WHATEVER ECONOMIES
RESULT FROM QUANTITY TRANSACTIONS MAY, AND INDEED SHOULD, BE PASSED
DOWN THE LINE TO THE CONSUMER.  I THINK THE COURT'S DISPOSITION OF THIS
CASE PRETTY MUCH SANCTIONS AN OBLITERATION OF THE DIFFERENCE BETWEEN
DISCOUNTS WHICH THE ACT WOULD FOSTER AND THOSE IT WOULD CONDEMN. 

IT WILL ILLUSTRATE MY POINT TO DISCUSS ONLY TWO OF THE DISCOUNTS
INVOLVED - TWO WHICH THE COMMISSION AND THE COURT LUMP TOGETHER AND
TREAT EXACTLY ALIKE, BUT WHICH TO ME REQUIRE UNDER THE FACTS OF THIS
CASE QUITE DIFFERENT INFERENCES AS TO THEIR EFFECT ON COMPETITION. 

IN ADDITION TO A GENERAL TEN-CENT PER CASE CARLOAD LOT DISCOUNT,
THERE IS WHAT WE MAY CALL A QUOTA DISCOUNT, BY WHICH CUSTOMERS WHO
PURCHASE 5,000 OR MORE CASES IN A TWELVE-MONTH PERIOD GET A FURTHER
REBATE OF 10 CENTS PER CASE, WHILE THOSE WHO PURCHASE 50,000 OR MORE
CASES IN SUCH PERIODS GET AN ADDITIONAL 5 CENTS PER CASE.  THE
APPLICATION OF THIS SCHEDULE TO DISTRIBUTION OF THE TABLE SALT INVOLVED
IS SUBSTANTIALLY ILLUSTRATED BY ONE OF THE COMPANY'S EXHIBITS, FROM
WHICH WE FIND:

NUMBER       DISCOUNT 

CASES PURCHASED           CUSTOMERS       PER CASE 

1-500 ..................      3,643       0 

501-4,999 ..............        343              0 

5,000-10,000 ...........         35            .10    10,000-49,999
..........         14            .10 

50,000 AND OVER ........          5            .15 

IT THUS APPEARS THAT OUT OF APPROXIMATELY 4,000 CUSTOMERS ONLY 54
RECEIVE EITHER OF THESE TWO QUOTA DISCOUNTS IN PRACTICE, AND THE LARGER
ONE IS AVAILABLE TO ONLY FOUR OR FIVE MAJOR CHAIN STORE ORGANIZATIONS. 
THE QUOTA DISCOUNTS ALLOWED A CUSTOMER ARE NOT RELATED TO ANY APPARENT
DIFFERENCE IN HANDLING COSTS BUT ARE BASED SOLELY ON THE VOLUME OF HIS
PURCHASES, WHICH IN TURN DEPENDS LARGELY ON THE VOLUME OF HIS SALES,
AND THESE IN TURN ARE SURELY INFLUENCED BY HIS LOWERED COSTS WHICH HE
CAN REFLECT IN HIS RETAIL PRICES.    I AGREE THAT THESE FACTS WARRANT A
PRIMA FACIE INFERENCE OF DISCRIMINATION AND SUSTAIN A FINDING OF
DISCRIMINATION UNLESS THE COMPANY, WHICH BEST KNOWS WHY AND HOW THESE
DISCOUNTS ARE ARRIVED AT AND WHICH POSSESSES ALL THE DATA AS TO COSTS,
COMES FORWARD WITH A JUSTIFICATION.  I AGREE, TOO, THAT THE RESULTS OF
THIS SYSTEM ON RESPONDENT'S CUSTOMER LIST IS ENOUGH TO WARRANT THE
INFERENCE THAT THE EFFECTS "MAY BE SUBSTANTIALLY TO LESSEN COMPETITION
OR TEND TO CREATE A MONOPOLY." 

EVEN APPLYING THE STRICTER TEST OF PROBABILITY, I THINK THE INFERENCE
OF ADVERSE EFFECT ON COMPETITION IS WARRANTED BY THE FACTS AS TO THE
QUOTA DISCOUNTS.  IT IS NOT MERELY PROBABLE BUT I THINK IT IS ALMOST
INEVITABLE THAT THE FURTHER TEN-CENT OR FIFTEEN-CENT PER CASE
DIFFERENTIAL IN NET PRICE OF SALT BETWEEN THE LARGE NUMBER OF SMALL
MERCHANTS AND THE SMALL NUMBER OF VERY LARGE MERCHANTS, ACCELERATES THE
TREND OF THE FORMER TOWARDS EXTINCTION AND OF THE LATTER TOWARDS
MONOPOLY. 

HOWEVER, A VERY DIFFERENT PROBLEM IS PRESENTED BY THE DIFFERENTIAL OF
10 CENTS PER CASE WHEN DELIVERED IN CARLOAD LOTS.  THIS CARLOAD PRICE
APPLIES TO VARIOUS SMALL PURCHASERS WHO POOL THEIR ORDERS TO MAKE A
CARLOAD SHIPMENT AND TO ALL WHO PICK UP THEIR ORDERS, NO MATTER HOW
SMALL, AT THE COMPANY WAREHOUSES WHICH ARE MAINTAINED IN TEN CITIES. 
THE EVIDENCE IS THAT LESS THAN 1/10 OF 1% OF THE RESPONDENT'S TOTAL
SALT BUSINESS FAIL TO GET THE BENEFIT OF THIS CARLOAD-LOT DISCOUNT. 

IT DOES NOT SEEM TO ME THAT ONE CAN FAIRLY DRAW THE INFERENCE THAT
COMPETITION PROBABLY IS AFFECTED BY THE CARLOAD-LOT DISCOUNT.  INDEED,
THE DISCOUNT IS SO SMALL IN PROPORTION TO PRICE, SALT IS SO SMALL AN
ITEM IN WHOLESALE OR RETAIL BUSINESS AND IN THE CONSUMER'S BUDGET THAT
I SHOULD THINK IT FARFETCHED EVEN TO FIND IT REASONABLY POSSIBLE THAT
COMPETITION WOULD BE SUBSTANTIALLY AFFECTED.  HENCE, THE DISCOUNT,
WHETHER MORE OR LESS THAN THE EXACT SAVINGS IN HANDLING, WOULD NOT FALL
UNDER CONDEMNATION OF THE STATUTE.  THE INCIDENCE OF THIS DISCOUNT ON
CUSTOMERS IS NOT ARBITRARILY DETERMINED BY THE VOLUME OF THEIR BUSINESS
BUT DEPENDS UPON AN OBVIOUS DIFFERENCE IN HANDLING AND DELIVERY COSTS. 

THE COMMISSION HAS FORBIDDEN RESPONDENT TO CONTINUE THIS CARLOAD-LOT
DIFFERENTIAL.  THE COMMISSION HAS NO POWER TO PRESCRIBE PRICES, SO THAT
IT CAN ORDER ONLY THAT THE DIFFERENTIAL BE ELIMINATED.  UNLESS
COMPETITIVE CONDITIONS MAKE IT IMPOSSIBLE, THE RESPONDENT'S SELF
INTEREST WOULD DICTATE THAT IT ABOLISH THE DISCOUNT AND MAINTAIN THE
HIGHER BASE PRICE, RATHER THAN MAKE THE DISCOUNT UNIVERSALLY
APPLICABLE.  THE RESULT WOULD BE TO RAISE THE PRICE OF SALT 10 CENTS
PER CASE TO 99.9% OF RESPONDENT'S CUSTOMERS BECAUSE 1/10 OF 1% WERE NOT
IN A POSITION TO ACCEPT CARLOAD SHIPMENTS.  THIS IS A QUITE DIFFERENT
EFFECT THAN THE ELIMINATION OF THE QUOTA DISCOUNT. 

IT SEEMS TO ME THAT A DISCOUNT WHICH GIVES A LOWERED COST TO SO LARGE
A PROPORTION OF RESPONDENT'S CUSTOMERS AND IS WITHHELD ONLY FROM THOSE
WHOSE CONDITIONS OF DELIVERY OBVIOUSLY IMPOSE GREATER HANDLING COSTS,
DOES NOT PERMIT THE SAME INFERENCES OF EFFECT ON COMPETITION AS THE
QUOTA DISCOUNTS WHICH REDUCE COSTS TO THE FEW ONLY AND THAT ON A BASIS
WHICH ULTIMATELY IS THEIR SIZE. 

THE TWO TYPES OF DISCOUNT INVOLVED HERE SEEM TO ME TO FALL UNDER
DIFFERENT PURPOSES OF THE ACT AND TO REQUIRE DIFFERENT CONCLUSIONS OF
FACT AS TO EFFECT ON COMPETITION.  ACCORDINGLY, I SHOULD SUSTAIN THE
COURT BELOW INSOFAR AS IT SETS ASIDE THE CEASE AND DESIST ORDER AS TO
CARLOAD-LOT DISCOUNTS. 

FN1  THE FULL TEXT OF THE LATER REFERENCE, QUOTED IN PART BY THE
COURT, IS:  "AS WE HAVE SAID, THE STATUTE DOES NOT REQUIRE THAT THE
DISCRIMINATIONS MUST IN FACT HAVE HARMED COMPETITION, BUT ONLY THAT
THERE IS A REASONABLE POSSIBILITY THAT THEY 'MAY' HAVE SUCH AN EFFECT. 
WE THINK THAT IT WAS PERMISSIBLE FOR THE COMMISSION TO INFER THAT THESE
DISCRIMINATORY ALLOWANCES WERE A SUBSTANTIAL THREAT TO COMPETITION." 

IT SEEMS OBVIOUS THAT THE COURT'S "AS WE HAVE SAID" REFERS TO THE
EARLIER STATEMENT THAT THE TEST IS "PROBABILITY" WHICH IS QUOTED IN
FULL ABOVE, PARTICULARLY IN THE ABSENCE OF ANY OTHER CITATION OR
REFERENCE. 
..END :



















REPUBLIC GAS CO. V. OKLAHOMA, 334 U.S. 62 


NO. 134.  ARGUED JANUARY 6, 1948.  - DECIDED MAY 3, 1948.  - 198 OKLA.
350, 180 P.2D 1009, APPEAL DISMISSED. 


ONE OF TWO PRODUCERS OF NATURAL GAS IN THE SAME OKLAHOMA FIELD WAS
ORDERED BY THE STATE COMMISSION TO TAKE GAS "RATABLY" FROM, AND TO
CONNECT ITS PIPELINE WITH THE WELL OF, THE OTHER, ON TERMS AND
CONDITIONS TO BE AGREED UPON BY THE PARTIES OR TO BE FIXED BY THE
COMMISSION IF THE PARTIES WERE UNABLE TO AGREE.  THE VALIDITY UNDER THE
FEDERAL CONSTITUTION OF THE ORDER AND OF THE STATE LAW WHICH AUTHORIZED
IT WERE SUSTAINED BY THE STATE SUPREME COURT, WHICH INTERPRETED THE
ORDER AS GIVING THE RESPONDENT THE CHOICE OF TAKING AND PAYING FOR THE
GAS, MARKETING THE GAS AND ACCOUNTING THEREFOR, OR SHUTTING DOWN ITS
OWN WELLS.  HELD:  THE JUDGMENT OF THE STATE SUPREME COURT WAS NOT
"FINAL" WITHIN THE MEANING OF SEC. 237 OF THE JUDICIAL CODE, AND THIS
COURT IS THEREFORE WITHOUT JURISDICTION OF AN APPEAL THEREFROM.  PP. 62
72. 

REPUBLIC NATURAL GAS CO. V. OKLAHOMA ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

AN ORDER OF THE STATE CORPORATION COMMISSION OF OKLAHOMA, DIRECTING
THE APPELLANT TO TAKE GAS RATABLY FROM ANOTHER PRODUCER IN THE SAME
FIELD, WAS SUSTAINED BY THE STATE SUPREME COURT.  198 OKLA. 350, 180
P.2D 1009.  AN APPEAL TO THIS COURT IS HERE DISMISSED FOR THE WANT OF A
"FINAL" JUDGMENT, P. 72. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A DECISION OF THE SUPREME COURT OF OKLAHOMA,
ARISING FROM AN ORDER OF THE STATE CORPORATION COMMISSION WHICH
CONCERNED THE CORRELATIVE RIGHTS OF OWNERS OF NATURAL GAS DRAWN FROM A
COMMON SOURCE. 

SINCE 1913, OKLAHOMA HAS REGULATED THE EXTRACTION OF NATURAL GAS,
PARTLY TO PREVENT WASTE AND PARTLY TO AVOID EXCESSIVE DRAINAGE AS
BETWEEN PRODUCERS SHARING THE SAME POOL.  THE LEGISLATION PROVIDED THAT
OWNERS MIGHT TAKE FROM A COMMON SOURCE AMOUNTS OF GAS PROPORTIONATE TO
THE NATURAL FLOW OF THEIR RESPECTIVE WELLS, BUT NOT MORE THAN 25% OF
THAT NATURAL FLOW WITHOUT THE CONSENT OF THE CORPORATION COMMISSION;
THAT ANY PERSON TAKING GAS AWAY FROM A GAS FIELD, EXCEPT FOR CERTAIN
SPECIFIED PURPOSES, "SHALL TAKE RATABLY FROM EACH OWNER OF THE GAS IN
PROPORTION TO HIS INTEREST IN SAID GAS"; AND THAT SUCH RATABLE TAKING
WAS TO BE UPON TERMS AGREED UPON BY THE VARIOUS WELL OWNERS, OR, IN THE
EVENT OF FAILURE TO AGREE, UPON TERMS FIXED BY THE CORPORATION
COMMISSION.  FN1 

THE HUGOTON GAS FIELD IS ONE OF THE LARGEST IN THE UNITED STATES,
COVERING A VAST AREA IN SEVERAL STATES, INCLUDING OKLAHOMA.  IT WAS
DISCOVERED IN 1924 OR 1925, BUT THE OKLAHOMA PORTION WAS NOT DEVELOPED
UNTIL 1937.  REPUBLIC, A DELAWARE CORPORATION, OBTAINED PERMISSION TO
DO BUSINESS IN OKLAHOMA IN 1938, PURCHASED GAS LEASES IN THIS FIELD AND
DRILLED WELLS, REMOVING THE GAS IN ITS OWN PIPELINES.  IN 1944, THE
PEERLESS OIL AND GAS COMPANY COMPLETED A WELL IN A PORTION OF THE GAS
FIELD OTHERWISE TAPPED ONLY BY REPUBLIC.  IT HAD NO MARKET FOR THE GAS
OBTAINED FROM THIS WELL, NOR MEANS OF TRANSPORTING SUCH GAS TO ANY
MARKET.  IT OFFERED TO SELL THE GAS TO REPUBLIC, WHICH REFUSED IT.
PEERLESS THEN APPLIED TO THE CORPORATION COMMISSION FOR AN ORDER
REQUIRING REPUBLIC TO TAKE SUCH GAS FROM IT "RATABLY" - THAT IS, TO
TAKE THE SAME PROPORTION OF THE NATURAL FLOW OF PEERLESS' WELL AS
REPUBLIC TOOK OF THE NATURAL FLOW OF ITS OWN WELLS.  AFTER A HEARING,
THE COMMISSION FOUND THAT THE PRODUCTION OF NATURAL GAS IN THE HUGOTON
FIELD WAS IN EXCESS OF THE MARKET DEMAND; THAT REPUBLIC HAD QUALIFIED
TO DO BUSINESS IN OKLAHOMA WITH FULL KNOWLEDGE OF THE EXISTING
LEGISLATION REQUIRING THE RATABLE TAKING OF NATURAL GAS; AND THAT
REPUBLIC WAS TAKING MORE THAN ITS RATABLE SHARE OF GAS FROM THAT
PORTION OF THE FIELD TAPPED BOTH BY ITS WELLS AND THAT BELONGING TO
PEERLESS, THEREBY DRAINING GAS AWAY FROM PEERLESS' TRACT AND, IN
EFFECT, TAKING PROPERTY BELONGING TO PEERLESS.  THE COMMISSION ORDERED
REPUBLIC: 

"1.  ...  TO TAKE GAS RATABLY FROM APPLICANT'S (PEERLESS') WELL  ...
, AND TO MAKE NECESSARY CONNECTION AS SOON AS APPLICANT LAYS A LINE
CONNECTING SAID WELL WITH RESPONDENT'S (REPUBLIC'S) LINE, AND TO
CONTINUE TO DO SO UNTIL THE FURTHER ORDER OF THIS COMMISSION; PROVIDED
THAT, APPLICANT SHALL LAY ITS LINE FROM ITS WELL TO THE LINES OF
RESPONDENT AT SOME POINT DESIGNATED BY THE RESPONDENT, BUT IN SAID
DRILLED; AND SAID RESPONDENT IS REQUIRED TO MAKE SAID DESIGNATION
IMMEDIATELY AND WITHOUT UNREASONABLE DELAY, AND IN EVENT OF FAILURE OF
RESPONDENT SO TO DO, RESPONDENT SHALL NO LONGER BE PERMITTED TO PRODUCE
ANY OF ITS WELLS LOCATED IN THE HUGOTON OKLAHOMA GAS FIELD. 

"2.  THE TERMS AND CONDITIONS OF SUCH TAKING OF NATURAL GAS BY
REPUBLIC NATURAL GAS COMPANY FROM SAID PEERLESS OIL AND GAS COMPANY'S
WELL SHALL BE DETERMINED AND AGREE UPON BY AND BETWEEN APPLICANT AND
RESPONDENT; AND IN THE EVENT SAID PARTIES ARE UNABLE TO AGREE,
APPLICANT AND RESPONDENT ARE HEREBY GRANTED THE RIGHT TO MAKE FURTHER
APPLICATION TO THE COMMISSION FOR AN ORDER FIXING SUCH TERMS AND
CONDITIONS; AND THE COMMISSION RETAINS JURISDICTION HEREOF FOR SAID
PURPOSE." 

ON APPEAL, THE OKLAHOMA SUPREME COURT AFFIRMED, HOLDING THAT REPUBLIC
HAVING BEEN GIVEN LEAVE TO ENTER THE STATE ON THE BASIS OF THE
LEGISLATION GOVERNING NATURAL GAS PRODUCTION, MIGHT NOT CHALLENGE ITS
VALIDITY, AND THAT NEITHER THE ORDER NOR THE LEGISLATION ON WHICH IT IS
BASED RUNS COUNTER TO ASSERTED CONSTITUTIONAL RIGHTS.  198 OKLA. 350. 
THE COURT INTERPRETED THE COMMISSION'S ORDER AS GIVING REPUBLIC "A
CHOICE BETWEEN TAKING THE GAS FROM PEERLESS AND PAYING THEREFOR DIRECT,
OR MARKETING THE GAS AND ACCOUNTING TO PEERLESS THEREFOR, OR TO SHUT IN
ITS OWN PRODUCTION FROM THE SAME COMMON SOURCE OF SUPPLY."  198 OKLA.
AT 356.  INVOKING BOTH THE DUE PROCESS AND THE EQUAL PROTECTION CLAUSES
OF THE FOURTEENTH AMENDMENT, REPUBLIC APPEALED TO THIS COURT. 

THIS CASE RAISES THORNY QUESTIONS CONCERNING THE REGULATION OF
FUGACIOUS MINERALS, OF MOMENT BOTH TO STATES WHOSE ECONOMY IS
ESPECIALLY INVOLVED AND TO THE PRIVATE ENTERPRISES WHICH DEVELOP THESE
NATURAL RESOURCES.  CF. THOMPSON V. CONSOLIDATED GAS UTILITIES CORP.,
300 U.S. 55; RAILROAD COMMISSION V. ROWAN & NICHOLS OIL CO., 310 U.S.
573, 311 U.S. 570.  BEFORE REACHING THESE CONSTITUTIONAL ISSUES, WE
MUST DETERMINE WHETHER OR NOT WE HAVE JURISDICTION TO DO SO. 

EVER SINCE 1789, CONGRESS HAS GRANTED THIS COURT THE POWER OF REVIEW
IN STATE LITIGATION ONLY AFTER "THE HIGHEST COURT OF A STATE IN WHICH A
DECISION IN A SUIT COULD BE HAD" HAS RENDERED A "FINAL JUDGMENT OR
DECREE."  SEC. 237 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 344, REPHRASING
SEC. 25 OF THE ACT OF SEPTEMBER 24, 1789, 1 STAT. 73, 85.  DESIGNED TO
AVOID THE EVILS OF PIECEMEAL REVIEW, THIS REFLECTS A MARKED
CHARACTERISTIC OF THE FEDERAL JUDICIAL SYSTEM, UNLIKE THAT OF SOME OF
THE STATES.  THIS PREREQUISITE FOR THE EXERCISE OF THE APPELLATE POWERS
OF THIS COURT IS ESPECIALLY PERTINENT WHEN A CONSTITUTIONAL BARRIER IS
ASSERTED AGAINST A STATE COURT'S DECISION ON MATTERS PECULIARLY OF
LOCAL CONCERN.  CLOSE OBSERVANCE OF THIS LIMITATION UPON THE COURT IS
NOT REGARD FOR A STRANGLING TECHNICALITY.  HISTORY BEARS AMPLE
TESTIMONY THAT IT IS AN IMPORTANT FACTOR IN SECURING HARMONIOUS STATE
FEDERAL RELATIONS. 

NO SELF-ENFORCING FORMULA DEFINING WHEN A JUDGMENT IS "FINAL" CAN BE
DEVISED.  TESTS HAVE BEEN INDICATED WHICH ARE HELPFUL IN GIVING
DIRECTION AND EMPHASIS TO DECISION FROM CASE TO CASE.  THUS, THE
REQUIREMENT OF FINALITY HAS NOT BEEN MET MERELY BECAUSE THE MAJOR
ISSUES IN A CASE HAVE BEEN DECIDED AND ONLY A FEW LOOSE ENDS REMAIN TO
BE TIED UP - FOR EXAMPLE, WHERE LIABILITY HAS BEEN DETERMINED AND ALL
THAT NEEDS TO BE ADJUDICATED IS THE AMOUNT OF DAMAGES.  BRUCE V. TOBIN,
245 U.S. 18; MARTINEZ V. INTERNATIONAL BANKING CORP., 220 U.S. 214,
223; MISSISSIPPI CENTRAL R. CO. V. SMITH, 295 U.S. 718.  ON THE OTHER
HAND, IF NOTHING MORE THAN A MINISTERIAL ACT REMAINS TO BE DONE, SUCH
AS THE ENTRY OF A JUDGMENT UPON A MANDATE, THE DECREE IS REGARDED AS
CONCLUDING THE CASE AND IS IMMEDIATELY REVIEWABLE.  BOARD OF
COMMISSIONERS V. LUCAS, 93 U.S. 108; MOWER V. FLETCHER, 114 U.S. 127. 

THERE HAVE BEEN INSTANCES WHERE THE COURT HAS ENTERTAINED AN APPEAL
OF AN ORDER THAT OTHERWISE MIGHT BE DEEMED INTERLOCUTORY, BECAUSE THE
CONTROVERSY HAD PROCEEDED TO A POINT WHERE A LOSING PARTY WOULD BE
IRREPARABLY INJURED IF REVIEW WERE UNAVAILING.  CF. CLARK V. WILLIARD,
294 U.S. 211; GUMBEL V. PITKIN, 113 U.S. 545; AND COMPARE FORGAY V.
CONRAD, 6 HOW.  201, 204, WITH BARNARD V. GIBSON, 7 HOW.  650, 657. 
FOR RELATED REASONS, AN ORDER DECREEING IMMEDIATE TRANSFER OF
POSSESSION OF PHYSICAL PROPERTY IS FINAL FOR PURPOSES OF REVIEW EVEN
THOUGH AN ACCOUNTING FOR PROFITS IS TO FOLLOW.  IN SUCH CASES THE
ACCOUNTING IS DEEMED A SEVERED CONTROVERSY AND NOT PART OF THE MAIN
CASE.  FORGAY V. CONRAD, SUPRA; CARONDELET CANAL CO. V. LOUISIANA, 233
U.S. 362; RADIO STATION WOW V. JOHNSON, 326 U.S. 120.  BUT A DECISION
THAT A TAKING BY EMINENT DOMAIN IS FOR A PUBLIC USE, WHERE THE AMOUNT
OF COMPENSATION HAS NOT BEEN DETERMINED, IS NOT DEEMED FINAL, CERTAINLY
WHERE THE PROPERTY WILL NOT CHANGE HANDS UNTIL AFTER THE AWARD OF
COMPENSATION.  GRAYS HARBOR LOGGING CO. V. COATS-FORDNEY CO., 243 U.S.
251; CF. LUXTON V. NORTH RIVER BRIDGE CO., 147 U.S. 337; CATLIN V.
UNITED STATES, 324 U.S. 229.  FN2  ONE THING IS CLEAR.  THE
CONSIDERATIONS THAT DETERMINE FINALITY ARE NOT ABSTRACTIONS BUT HAVE
REFERENCE TO VERY REAL INTERESTS - NOT MERELY THOSE OF THE IMMEDIATE
PARTIES BUT, MORE PARTICULARLY, THOSE THAT PERTAIN TO THE SMOOTH
FUNCTIONING OF OUR JUDICIAL SYSTEM. 

ON WHICH SIDE OF THE LINE, HOWEVER FAINT AND FALTERING AT TIMES,
DIVIDING JUDGMENTS THAT WERE DEEMED "FINAL" FROM THOSE FOUND NOT TO BE
SO, DOES THE JUDGMENT BEFORE US FALL?  THE ORDER OF THE OKLAHOMA
CORPORATION COMMISSION, AS AFFIRMED BELOW, TERMINATES SOME BUT NOT ALL
ISSUES IN THIS PROCEEDING.  REPUBLIC IS REQUIRED TO TAKE RATABLY FROM
PEERLESS, BUT IT MAY DO SO IN ANY ONE OF THREE WAYS.  IF, AS IS MOST
PROBABLE, REPUBLIC WOULD CHOOSE NOT TO CLOSE DOWN ITS OWN WELLS, UNDER
THE COMMISSION'S ORDER IT MUST ALLOW PEERLESS TO CONNECT ITS WELL TO
REPUBLIC'S PIPELINE.  BUT THERE HAS BEEN LEFT OPEN FOR LATER
DETERMINATION, IN EVENT OF FAILURE TO REACH AGREEMENT, THE TERMS UPON
WHICH REPUBLIC MUST TAKE THE GAS, THE RATES WHICH IT MUST PAY ON
PURCHASE, OR MAY CHARGE IF IT SELLS AS AGENT OF PEERLESS.  DOES EITHER
ITS ALTERNATIVE CHARACTER, OR THE FACT THAT IT LEAVES MATTERS STILL
OPEN FOR DETERMINATION, SO QUALIFY THE ORDER AS TO MAKE IT SHORT OF
"FINAL" FOR PRESENT REVIEW? 

WE TURN FIRST TO THE LATTER POINT.  CERTAINLY WHAT REMAINS TO BE DONE
CANNOT BE CHARACTERIZED AS MERELY "MINISTERIAL."  WHETHER OR NOT THE
AMOUNT OF GAS TO BE TAKEN BY REPUBLIC FROM PEERLESS CAN BE ASCERTAINED
THROUGH APPLICATION OF A FORMULA, THE DETERMINATION OF THE PRICE TO BE
PAID FOR THE GAS IF PURCHASED, OR THE FEES TO BE PAID TO REPUBLIC FOR
MARKETING IT IF SOLD ON BEHALF OF PEERLESS, CLEARLY REQUIRES THE
EXERCISE OF JUDGMENT.  FN3  NOR IS THERE ANY IMMEDIATE THREAT OF
IRREPARABLE DAMAGE TO REPUBLIC, RENDERING POSTPONED REVIEW SO ILLUSORY
AS TO MAKE THE DECREE "FINAL" NOW OR NEVER.  THE COMMISSION'S ORDER
REQUIRES REPUBLIC TO DESIGNATE A POINT ON ITS PIPELINE AT WHICH
PEERLESS MIGHT ATTACH A LINE, AND AFTER PEERLESS HAD DONE SO TO CONNECT
IT IMMEDIATELY.  BUT IT DOES NOT APPEAR THAT THE ORDER REQUIRES
REPUBLIC TO COMMENCE TAKING PEERLESS' GAS BEFORE THE TERMS OF TAKING
HAVE EITHER BEEN AGREED UPON OR ORDERED BY THE COMMISSION.  NOR DOES IT
APPEAR THAT REPUBLIC WOULD HAVE TO BEAR THE EXPENSE OF CONNECTING THE
PIPELINE, NOR THAT SUCH EXPENSE WOULD BE SUBSTANTIAL.  INDEED, THE
INCURRING OF SOME LOSS, BEFORE A PROCESS PRELIMINARY TO REVIEW HERE IS
EXHAUSTED, IS NOT IN ITSELF SUFFICIENT TO AUTHORIZE OUR INTERVENTION. 
CF. MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, 50-52.  BUT
EVEN IF THE COMMISSION'S ORDER WERE CONSTRUED TO REQUIRE REPUBLIC TO
TAKE AND DISPOSE OF PEERLESS' GAS IMMEDIATELY - AND WE ARE NOT SO
ADVISED BY THE STATE COURT - THERE IS NO GROUND FOR ASSUMING THAT ANY
LOSS THAT REPUBLIC MIGHT INCUR COULD NOT BE RECOVERED SHOULD THE
COMPLETED DIRECTION OF THE OKLAHOMA COMMISSION, ON AFFIRMANCE BY THAT
STATE'S SUPREME COURT, ULTIMATELY BE FOUND TO BE UNCONSTITUTIONAL. 
MERELY BECAUSE A PARTY TO A LITIGATION MAY BE TEMPORARILY OUT OF
POCKET, IS NOT SUFFICIENT TO WARRANT IMMEDIATE REVIEW OF AN INCOMPLETE
STATE JUDGMENT.  APPELLANT, OF COURSE, HAS THE BURDEN OF AFFIRMATIVELY
ESTABLISHING THIS COURT'S JURISDICTION.  MEMPHIS NATURAL GAS CO. V.
BEELER, 315 U.S. 649, 651.  THE POLICY AGAINST PREMATURE CONSTITUTIONAL
ADJUDICATIONS DEMANDS THAT ANY DOUBTS IN MAINTAINING THIS BURDEN BE
RESOLVED AGAINST JURISDICTION.  SEE CITATION OF CASES IN THE CONCURRING
OPINION OF MR. JUSTICE BRANDEIS IN ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 341, 345, 348. 

THE CONDEMNATION PRECEDENTS ATTRACT THIS CASE MORE PERSUASIVELY THAN
DO THE ACCOUNTING CASES.  WHERE IT IS CLAIMED THAT A DECREE
TRANSFERRING PROPERTY OVERRIDES AN ASSERTED FEDERAL RIGHT, AS IN FORGAY
V. CONRAD, SUPRA, AND RADIO STATION WOW V. JOHNSON, SUPRA, NO
DISPOSITION OF THE SUBSEQUENT ACCOUNTING PROCEEDING CAN POSSIBLY MAKE
UP FOR THE DEFEATED PARTY'S LOSS, SINCE THE PARTY WHO HAS LOST THE
PROPERTY MUST ALSO PAY TO HIS OPPONENT WHAT THE ACCOUNTING DECREES. 
HENCE HIS DESIRE TO APPEAL THE ISSUE OF THE RIGHT TO THE PROPERTY WILL
ALMOST CERTAINLY PERSIST.  ON THE OTHER HAND, IN AN EMINENT DOMAIN
CASE, AS IN A CASE LIKE THIS, THE FATE OF THE WHOLE LITIGATION MAY WELL
BE AFFECTED BY THE FATE OF THE UNRESOLVED CONTINGENCIES OF THE
LITIGATION.  AN ADEQUATE AWARD IN AN EMINENT DOMAIN CASE OR A
PROFITABLE RATE IN THE CASE BEFORE US MIGHT WELL SATISFY THE LOSING
PARTY TO ACQUIESCE IN THE DISPOSITION OF THE EARLIER ISSUE.  IT IS OF
COURSE NOT OUR PROVINCE TO DISCOURAGE APPEALS.  BUT FOR THE SOUNDEST OF
REASONS WE OUGHT NOT TO PASS ON CONSTITUTIONAL ISSUES BEFORE THEY HAVE
REACHED A DEFINITIVE STOP.  ANOTHER SIMILARITY BETWEEN THIS CASE AND
THE CONDEMNATION CASES CALLS FOR ABSTENTION UNTIL WHAT IS ORGANICALLY
ONE LITIGATION HAS BEEN CONCLUDED IN THE STATE.  IT IS THAT THE MATTERS
LEFT OPEN MAY GENERATE ADDITIONAL FEDERAL QUESTIONS.  THIS BRINGS INTO
VIVID RELEVANCE THE POLICY AGAINST FRAGMENTARY REVIEW.  IN ACCOUNTING
CASES, THAT WHICH STILL REMAINS TO BE LITIGATED CAN SCARCELY GIVE RISE
TO NEW FEDERAL QUESTIONS.  THE POLICY AGAINST FRAGMENTARY REVIEW HAS
THEREFORE LITTLE BEARING.  BUT CONTESTS OVER VALUATION IN EMINENT
DOMAIN CASES, AS PRICE-FIXING IN THIS TYPE OF CASE, ARE INHERENTLY
PROVOCATIVE OF CONSTITUTIONAL CLAIMS.  THIS POTENTIALITY OF ADDITIONAL
FEDERAL QUESTIONS ARISING OUT OF THE SAME CONTROVERSY HAS LED THIS
COURT TO FIND WANT OF THE NECESSARY FINALITY OF ADJUDICATED
CONSTITUTIONAL ISSUES IN CONDEMNATION DECREES BEFORE VALUATION HAS BEEN
MADE.  LIKE CONSIDERATIONS ARE RELEVANT HERE. 

IN SHORT, THE GUIDING CONSIDERATIONS FOR DETERMINING WHETHER THE
DECREE OF THE COURT BELOW POSSESSES REQUISITE FINALITY LEAD TO THE
CONCLUSION THAT THIS CASE MUST AWAIT ITS CULMINATION IN THE JUDICIAL
PROCESS OF THE STATE BEFORE WE CAN ASSUME JURISDICTION.  "ONLY ONE
BRANCH OF THE CASE HAS BEEN FINALLY DISPOSED OF BELOW, THEREFORE NONE
OF IT IS RIPE FOR REVIEW BY THIS COURT."  COLLINS V. MILLER, 252 U.S.
364, 371.  THIS MAKES IT UNNECESSARY TO CONSIDER WHETHER THE MERE FACT
THAT THE DECREE GAVE ALTERNATIVE COMMANDS PRECLUDED IT FROM BEING
FINAL.  CF. PADUCAH V. EAST TENNESSEE TEL. CO., 229 U.S. 476; JONES'S
ADM'R V. CRAIG, 127 U.S. 213; NOTE, 48 HARV. L. REV. 302, 305-306. 
SINCE THE JUDGMENT NOW APPEALED FROM LACKS THE NECESSARY FINALITY, WE
CANNOT CONSIDER THE MERITS.  ALL OF REPUBLIC'S CONSTITUTIONAL
OBJECTIONS ARE OF COURSE SAVED.  APPEAL DISMISSED. 

FN1  L. 1913, C. 198, SECS. 1-3(OKLA.  STAT.  (1941) TIT. 52, SECS.
231-33): 

"SECTION 1.  ALL NATURAL GAS UNDER THE SURFACE OF ANY LAND IN THIS
STATE IS HEREBY DECLARED TO BE AND IS THE PROPERTY OF THE OWNERS, OR
GAS LESSEES, OF THE SURFACE UNDER WHICH GAS IS LOCATED IN ITS ORIGINAL
STATE. 

"SECTION 2.  ANY OWNER, OR OIL AND GAS LESSEE, OF THE SURFACE, HAVING
THE RIGHT TO DRILL FOR GAS SHALL HAVE THE RIGHT TO SINK A WELL TO THE
NATURAL GAS UNDERNEATH THE SAME AND TO TAKE GAS THEREFROM UNTIL THE GAS
UNDER SUCH SURFACE IS EXHAUSTED.  IN CASE OTHER PARTIES, HAVING THE
RIGHT TO DRILL INTO THE COMMON RESERVOIR OF GAS, DRILL A WELL OR WELLS
INTO THE SAME, THEN THE AMOUNT OF GAS EACH OWNER MAY TAKE THEREFROM
SHALL BE PROPORTIONATE TO THE NATURAL FLOW OF HIS WELL OR WELLS TO THE
NATURAL FLOW OF THE WELL OR WELLS OF SUCH OTHER OWNERS OF THE SAME
COMMON SOURCE OF SUPPLY OF GAS, SUCH NATURAL FLOW TO BE DETERMINED BY
ANY STANDARD MEASUREMENT AT THE BEGINNING OF EACH CALENDAR MONTH;
PROVIDED, THAT NOT MORE THAN TWENTY-FIVE PER CENT OF THE NATURAL FLOW
OF ANY WELL SHALL BE TAKEN, UNLESS FOR GOOD CAUSE SHOWN, AND UPON
NOTICE AND HEARING THE CORPORATION COMMISSION MAY, BY PROPER ORDER,
PERMIT THE TAKING OF A GREATER AMOUNT.  THE DRILLING OF A GAS WELL OR
WELLS BY ANY OWNER OR LESSEE OF THE SURFACE SHALL BE REGARDED AS
REDUCING TO POSSESSION HIS SHARE OF SUCH GAS AS IS SHOWN BY HIS WELL. 

"SECTION 3.  ANY PERSON, FIRM OR CORPORATION, TAKING GAS FROM A GAS
FIELD, EXCEPT FOR PURPOSES OF DEVELOPING A GAS OR OIL FIELD, AND
OPERATING OIL WELLS, AND FOR THE PURPOSE OF HIS OWN DOMESTIC USE, SHALL
TAKE RATABLY FROM EACH OWNER OF THE GAS IN PROPORTION TO HIS INTEREST
IN SAID GAS, UPON SUCH TERMS AS MAY BE AGREED UPON BETWEEN SAID OWNERS
AND THE PARTY TAKING SUCH, OR IN CASE THEY CANNOT AGREE AT SUCH A PRICE
AND UPON SUCH TERMS AS MAY BE FIXED BY THE CORPORATION COMMISSION AFTER
NOTICE AND HEARING; PROVIDED, THAT EACH OWNER SHALL BE REQUIRED TO
DELIVER HIS GAS TO A COMMON POINT OF DELIVERY ON OR ADJACENT TO THE
SURFACE OVERLYING SUCH GAS." 

SEE ALSO L. 1915, C. 197, SECS. 4, 5(OKLA.  STAT.  (1941) TIT. 52,
SECS. 239, 240): 

"SECTION 4.  THAT WHENEVER THE FULL PRODUCTION FROM ANY COMMON SOURCE
OF SUPPLY OF NATURAL GAS IN THIS STATE IS IN EXCESS OF THE MARKET
DEMANDS, THEN ANY PERSON, FIRM OR CORPORATION, HAVING THE RIGHT TO
DRILL INTO AND PRODUCE GAS FROM ANY SUCH COMMON SOURCE OF SUPPLY, MAY
TAKE THEREFROM ONLY SUCH PROPORTION OF THE NATURAL GAS THAT MAY BE
MARKETED WITHOUT WASTE, AS THE NATURAL FLOW OF THE WELL OR WELLS OWNED
OR CONTROLLED BY ANY SUCH PERSON, FIRM OR CORPORATION BEARS TO THE
TOTAL NATURAL FLOW OF SUCH COMMON SOURCE OF SUPPLY HAVING DUE REGARD TO
THE ACREAGE DRAINED BY EACH WELL, SO AS TO PREVENT ANY SUCH PERSON,
FIRM OR CORPORATION SECURING ANY UNFAIR PROPORTION OF THE GAS
THEREFROM; PROVIDED, THAT THE CORPORATION COMMISSION MAY BY PROPER
ORDER, PERMIT THE TAKING OF A GREATER AMOUNT WHENEVER IT SHALL DEEM
SUCH TAKING REASONABLE OR EQUITABLE.  THE SAID COMMISSION IS AUTHORIZED
AND DIRECTED TO PRESCRIBE RULES AND REGULATIONS FOR THE DETERMINATION
OF THE NATURAL FLOW OF ANY SUCH WELL OR WELLS, AND TO REGULATE THE
TAKING OF NATURAL GAS FROM ANY OR ALL SUCH COMMON SOURCES OF SUPPLY
WITHIN THE STATE, SO AS TO PREVENT WASTE, PROTECT THE INTERESTS OF THE
PUBLIC, AND OF ALL THOSE HAVING A RIGHT TO PRODUCE THEREFROM, AND TO
PREVENT UNREASONABLE DISCRIMINATION IN FAVOR OF ANY ONE SUCH COMMON
SOURCE OF SUPPLY AS AGAINST ANOTHER. 

"SECTION 5.  THAT EVERY PERSON, FIRM OR CORPORATION, NOW OR HEREAFTER
ENGAGED IN THE BUSINESS OF PURCHASING AND SELLING NATURAL GAS IN THIS
STATE, SHALL BE A COMMON PURCHASER THEREOF, AND SHALL PURCHASE ALL OF
THE NATURAL GAS WHICH MAY BE OFFERED FOR SALE, AND WHICH MAY REASONABLY
BE REACHED BY ITS TRUNK LINES, OR GATHERING LINES WITHOUT
DISCRIMINATION IN FAVOR OF ONE PRODUCER AS AGAINST ANOTHER, OR IN FAVOR
OF ANY ONE SOURCE OF SUPPLY AS AGAINST ANOTHER SAVE AS AUTHORIZED BY
THE CORPORATION COMMISSION AFTER DUE NOTICE AND HEARING; BUT IF ANY
SUCH PERSON, FIRM OR CORPORATION, SHALL BE UNABLE TO PURCHASE ALL THE
GAS SO OFFERED, THEN IT SHALL PURCHASE NATURAL GAS FROM EACH PRODUCER
RATABLY.  IT SHALL BE UNLAWFUL FOR ANY SUCH COMMON PURCHASER TO
DISCRIMINATE BETWEEN LIKE GRADES AND PRESSURES OF NATURAL GAS, OR IN
FAVOR OF ITS OWN PRODUCTION, OR OF PRODUCTION IN WHICH IT MAY BE
DIRECTLY OR INDIRECTLY INTERESTED, EITHER IN WHOLE OR IN PART, BUT FOR
THE PURPOSE OF PRORATING THE NATURAL GAS TO BE MARKETED, SUCH
PRODUCTION SHALL BE TREATED IN LIKE MANNER AS THAT OF ANY OTHER
PRODUCER OR PERSON, AND SHALL BE TAKEN ONLY IN THE RATABLE PROPORTION
THAT SUCH PRODUCTION BEARS TO THE TOTAL PRODUCTION AVAILABLE FOR
MARKETING.  THE CORPORATION COMMISSION SHALL HAVE AUTHORITY TO MAKE
REGULATIONS FOR THE DELIVERY, METERING AND EQUITABLE PURCHASING AND
TAKING OF ALL SUCH GAS AND SHALL HAVE AUTHORITY TO RELIEVE ANY SUCH
COMMON PURCHASER, AFTER DUE NOTICE AND HEARING, FROM THE DUTY OF
PURCHASING GAS OF AN INFERIOR QUALITY OR GRADE." 

FN2  IN THE CATLIN CASE OUR DECISION WAS BASED ON THE GENERAL RULE
THAT CONDEMNATION ORDERS PRIOR TO DETERMINATION OF JUST COMPENSATION
ARE NOT APPEALABLE.  THE WARTIME STATUTES THERE INVOLVED WERE URGED BY
THE CLAIMANTS AS A REASON FOR NOT APPLYING THE GENERAL RULE.  WE
REJECTED THIS CONTENTION. 

FN3  THIS CASE IS UNLIKE THOSE IN WHICH A RATE HAD BEEN FIXED,
SUBJECT TO A CONTINUING JURISDICTION TO MODIFY IT LATER.  CF. MARKET
STREET R. CO. V. RAILROAD COMMISSION, 324 U.S. 548; ST. LOUIS, IRON
MOUNTAIN & SOUTHERN R. CO. V. SOUTHERN EXPRESS CO., 108 U.S. 24.  HERE,
NO RATES HAVE BEEN SET, AND THEIR FUTURE ESTABLISHMENT HAS BEEN LEFT
OPEN. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE JUDGMENT OF THE OKLAHOMA COURT IS NOT "FINAL" MERELY BECAUSE IT
ESTABLISHES THAT REPUBLIC HAS NO RIGHT TO DRAIN AWAY THE PEERLESS GAS
WITHOUT PAYING FOR IT.  I THINK IT WOULD BE CONCEDED THAT, EVEN SO, THE
JUDGMENT WOULD NOT BE "FINAL" IF IT OFFERED APPELLANT THREE ALTERNATIVE
WAYS TO COMPLY AND THERE WERE DOUBTS AS TO THE CONSTITUTIONALITY OF ANY
ONE OF THEM.  THEN WE WOULD WAIT TO SEE WHICH OF THE ALTERNATIVES WAS
ULTIMATELY SELECTED OR IMPOSED BEFORE REVIEWING THE CONSTITUTIONALITY
OF ANY OF THEM.  BUT THERE WOULD BE NO MORE REASON TO DEFER DECISION ON
THE MERITS IN THAT CASE THAN IN THIS.  FOR THE CONSTITUTIONAL QUESTIONS
WOULD BE ISOLATED IN EACH AND WE WOULD BE AS UNCERTAIN IN ONE AS IN THE
OTHER WHICH OF THE ALTERNATIVES WOULD ACTUALLY APPLY TO APPELLANT.  AND
THE PRINCIPLE SEEMS TO ME TO BE THE SAME EVEN WHEN A MAJORITY OF US
WOULD SUSTAIN THE ORDER WHATEVER ALTERNATIVE WAS CHOSEN AS ITS
SANCTION. 

THERE IS, OF COURSE, IN THE ONE CASE THE CHANCE OF SAVING THE ORDER
ONLY IF ONE REMEDY RATHER THAN ANOTHER IS CHOSEN, WHILE IN THE OTHER
THE ORDER WOULD SURVIVE WHICHEVER WAS CHOSEN.  BUT IN EACH WE WOULD BE
GIVING NEEDLESS CONSTITUTIONAL DISSERTATIONS ON SOME POINTS.  THAT IS
NONETHELESS TRUE IN A CASE WHERE THE CONSTITUTIONAL QUESTIONS SEEM TO A
MAJORITY OF US SIMPLE, UNCOMPLICATED AND OF NO GREAT DIGNITY.  FOR THE
SINGLE CONSTITUTIONAL QUESTION NECESSARY FOR DECISION WILL NOT BE
ISOLATED UNTIL THE PRECISE PINCH OF THE ORDER ON THE APPELLANT IS
KNOWN.  IT WILL NOT BE KNOWN IN THE PRESENT CASE AT LEAST UNTIL
APPELLANT ELECTS OR IS REQUIRED (1) TO SHUT DOWN, (2) TO BECOME A
CARRIER OF THE PEERLESS GAS, OR (3) TO PURCHASE IT. 

THE LEGAL, AS WELL AS THE ECONOMIC, RELATIONSHIP WHICH REPUBLIC WILL
BEAR TO PEERLESS WILL VARY AS ONE OR ANOTHER CHOICE IS MADE.  TO MAKE
REPUBLIC A "CARRIER" IS TO SUBMIT IT TO DIFFERENT BUSINESS RISKS THAN
TO MAKE IT A "PURCHASER."  THE FACT THAT EACH WOULD RAISE ONLY
QUESTIONS OF "DUE PROCESS" UNDER THE FOURTEENTH AMENDMENT DOES NOT MEAN
THAT THE QUESTIONS ARE IDENTICAL.  EVEN WHEN REASONABLENESS IS THE
TEST, JUDGES HAVE DEVELOPED GREAT CONTRARIETY OF OPINIONS.  THE POINT
IS THAT TODAY THE VARIABLES ARE PRESENTED ONLY IN THE ABSTRACT. 
TOMORROW THE FACTS WILL BE KNOWN, WHEN THE PRECISE IMPACT OF THE ORDER
ON APPELLANT WILL BE DETERMINED.  THUS TO ME THE POLICY AGAINST
PREMATURE CONSTITUTIONAL ADJUDICATION PRECLUDES US FROM SAYING THE
JUDGMENT IN THE PRESENT CASE IS "FINAL." 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
MURPHY, AND MR. JUSTICE BURTON JOIN, DISSENTING. 

I THINK THE OKLAHOMA SUPREME COURT'S JUDGMENT IS FINAL FOR THE
PURPOSES OF SEC. 237 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 344, THAT THE
STATE COMMISSION'S ORDER IS VALID, AND THAT DEFERRING DECISION ON THE
MERITS TO SOME INDEFINITE FUTURE TIME WILL ONLY PROLONG AN ALREADY
LENGTHY LITIGATION UNNECESSARILY AND WITH POSSIBLE IRREPARABLE HARM TO
ONE PARTY OR THE OTHER. 

APPELLANT, REPUBLIC NATURAL GAS COMPANY, HAS OPERATED GAS WELLS IN
THE HUGOTON GAS FIELD FOR MANY YEARS.  IT WAS THE FIRST MAJOR PRODUCER
TO EXPLOIT THE OKLAHOMA PORTION OF THE FIELD,  FN1 HAVING CONSTRUCTED
ITS OWN GATHERING SYSTEM AND PIPE LINES EXTENDING FROM OKLAHOMA INTO
KANSAS.  WITH ONLY MINOR EXCEPTIONS REPUBLIC HAS NEVER CARRIED ANY BUT
ITS OWN GAS IN ITS PIPE LINES.  FN2 198 OKLA. AT 352. 

IN 1944 APPELLEE, PEERLESS COMPANY, COMPLETED ITS ONLY WELL IN
OKLAHOMA, IN THE HUGOTON FIELD.  THIS WELL IS NOT CONNECTED TO ANY PIPE
LINE.  IT THEREFORE PRESENTLY LIES DORMANT.  SURROUNDING REPUBLIC WELLS
DRILLED INTO THE SAME RESERVOIR CONCEDEDLY ARE DRAINING GAS CONSTANTLY
FROM UNDER THE PEERLESS LAND.  FN3  EXCEPT FOR THE PART OF REPUBLIC'S
GATHERING SYSTEM WHICH RUNS ACROSS THE PEERLESS LAND, NO MARKET OUTLET
THAT WOULD TAKE SUFFICIENT GAS TO JUSTIFY PRODUCTION OF THE PEERLESS
WELL IS CLOSE ENOUGH TO MAKE IT FINANCIALLY PRACTICAL FOR PEERLESS TO
CONSTRUCT ITS OWN PIPE LINE.  IT IS UNDISPUTED THAT THE ONLY FEASIBLE
METHOD OF PRODUCING THE WELL IS TO REQUIRE REPUBLIC TO TAKE PEERLESS
GAS INTO ITS GATHERING SYSTEM.  FN4 

FOR THIS REASON PEERLESS APPLIED TO THE OKLAHOMA CORPORATE COMMISSION
FOR AN ORDER COMPELLING REPUBLIC TO CONNECT ITS PIPE LINE TO THE
PEERLESS WELL AND TO PURCHASE GAS FROM PEERLESS AT A PRICE TO BE FIXED
BY THE COMMISSION.  AFTER HEARING, THE COMMISSION CONCLUDED THAT THE
APPLICABLE OKLAHOMA STATUTES  FN5  REQUIRED IT TO ENFORCE RATABLE
TAKING AND RATABLE PRODUCTION OF GAS AS BETWEEN REPUBLIC AND PEERLESS. 

THE COMMISSION RECOGNIZED ALTERNATIVE METHODS OF PROTECTING PEERLESS
FROM LOSS DUE TO DRAINAGE, FIRST BY ORDERING ALL WELLS IN THE AREA TO
SHUT DOWN COMPLETELY, AND SECOND BY ORDERING REPUBLIC TO PURCHASE FROM
PEERLESS.  SINCE THE FIRST METHOD WAS CONSIDERED HARSH, THE SECOND WAS
PREFERRED.  ACCORDINGLY THE COMMISSION ISSUED AN ORDER REQUIRING
REPUBLIC TO TAKE GAS RATABLY FROM THE PEERLESS WELL AS SOON AS THE
NECESSARY CONNECTION COULD BE MADE, ALLOWING IT, HOWEVER, THE
ALTERNATIVE OF CLOSING DOWN ALL OF ITS WELLS IN THE OKLAHOMA PORTION OF
THE FIELD IF IT PREFERRED THIS TO TAKING THE PEERLESS GAS.  THE TERMS
AND CONDITIONS OF THE TAKING WERE TO BE DETERMINED BY THE PARTIES; BUT,
IN THE EVENT OF FAILURE TO AGREE, THEY WERE "GRANTED THE RIGHT TO MAKE
FURTHER APPLICATION TO THE COMMISSION FOR AN ORDER FIXING SUCH TERMS
AND CONDITIONS  ...  "  FN6  THE TAKING, HOWEVER, WAS NOT TO AWAIT THIS
AGREEMENT OR FURTHER ORDER; IT WAS TO BEGIN AT ONCE.  FN7 

AFFIRMING THE ORDER, THE SUPREME COURT OF OKLAHOMA CONSTRUED THE STATE
STATUTES TO AUTHORIZE THE ADMINISTRATIVE ACTION.  198 OKLA. 350.  THE
CASE THUS PRESENTS ON THE MERITS THE QUESTION WHETHER A STATE, AS A
MEANS OF ADJUSTING PRIVATE CORRELATIVE RIGHTS IN A COMMON RESERVOIR,
HAS THE POWER IN SUCH CIRCUMSTANCES AS THESE TO COMPEL ONE PRIVATE
PRODUCER TO SHARE HIS MARKET WITH ANOTHER, WHEN OTHERWISE HIS
PRODUCTION WOULD DRAIN OFF THAT OTHER'S RATABLE SHARE OF THE GAS IN
PLACE AND THUS APPROPRIATE IT TO HIMSELF. 

                                  I. 

THE MAJORITY CONSIDER THAT THE PROCEEDINGS IN THE STATE TRIBUNALS
HAVE NOT TERMINATED IN A FINAL JUDGMENT FROM WHICH APPEAL TO THIS COURT
LIES, AND THEREFORE REFUSE TO ADJUDICATE THIS QUESTION. 

IN THE STRICTEST SENSE THE STATE PROCEEDINGS WILL NOT BE COMPLETED
UNTIL THE PARTIES HAVE AGREED UPON THE TERMS AND CONDITIONS OF
REPUBLIC'S TAKING OF GAS FROM PEERLESS OR, IF THEY DO NOT AGREE, UNTIL
THE COMMISSION HAS ISSUED AN ADDITIONAL ORDER FIXING THOSE TERMS. 
SINCE IT IS NOT CERTAIN THAT THE PARTIES WILL AGREE, THE POSSIBILITY
REMAINS THAT A FURTHER ORDER MAY BE REQUIRED BEFORE ALL PHASES OF THE
CONTROVERSY ARE DISPOSED OF.  IT IS THIS POSSIBILITY, AS I THINK A
REMOTE ONE, WHICH FURNISHES ONE OF THE GROUNDS FOR CONCLUDING THAT THE
OKLAHOMA COURT'S JUDGMENT IS NOT FINAL WITHIN THE MEANING AND POLICY OF
SEC. 237.    THE FACT THAT ALL PHASES OF THE LITIGATION ARE NOT
CONCLUDED DOES NOT NECESSARILY DEFEAT OUR JURISDICTION.  THIS IS TRUE,
ALTHOUGH AS RECENTLY AS GOSPEL ARMY V. LOS ANGELES, 331 U.S. 543, WE
REITERATED THAT, FOR A JUDGMENT TO BE FINAL AND REVIEWABLE UNDER SEC.
237, "IT MUST END THE LITIGATION BY FULLY DETERMINING THE RIGHTS OF THE
PARTIES, SO THAT NOTHING REMAINS TO BE DONE BY THE TRIAL COURT 'EXCEPT
THE MINISTERIAL ACT OF ENTERING THE JUDGMENT WHICH THE APPELLATE COURT
...  DIRECTED.'"  331 U.S. AT 546.  THIS IS THE GENERAL RULE, GROUNDED
IN A VARIETY OF CONSIDERATIONS REFLECTED IN THE STATUTORY COMMAND  FN8
AND COMING DOWN TO THE SUM THAT, IN EXERCISING THE JURISDICTION
CONFERRED BY SEC. 237, THIS COURT IS NOT TO BE CONCERNED WITH REVIEWING
INCONCLUSIVE, PIECEMEAL, OR REPETITIOUS DETERMINATIONS.  THE GOSPEL
ARMY CASE REPRESENTS A TYPICAL INSTANCE FOR APPLYING THE TERMS AND THE
POLICY OF SEC. 237.  FN9  BUT NOT EVERY DECISION BY A STATE COURT OF
LAST RESORT LEAVING THE CONTROVERSY OPEN TO FURTHER PROCEEDINGS AND
ORDERS IS EITHER INCONCLUSIVE OF THE ISSUES OR PREMATURE FOR PURPOSES
OF REVIEW UNDER SEC. 237.  THIS APPEARS MOST RECENTLY FROM THE DECISION
IN RADIO STATION WOW V. JOHNSON, 326 U.S. 120, WHICH APPLIED A SETTLED
LINE OF AUTHORITIES TO THAT EFFECT.  CF. RICHFIELD OIL CORP. V. STATE
BOARD, 329 U.S. 69. 

IN SUCH CASES THE FORMULATION OF THE TEST OF FINALITY MADE IN THE
GOSPEL ARMY AND LIKE DECISIONS HAS NOT BEEN FOLLOWED.  INSTEAD THAT
QUESTION, IN THE SPECIAL CIRCUMSTANCES, HAS BEEN TREATED AS POSING
ESSENTIALLY A PRACTICAL PROBLEM, NOT ONE TO BE DETERMINED EITHER BY THE
LABEL ATTACHED TO THE STATE COURT JUDGMENT BY LOCAL LAW, RICHFIELD OIL
CORP. V. STATE BOARD, SUPRA, OR BY THE MERELY MECHANICAL INQUIRY
WHETHER SOME FURTHER ORDER OR PROCEEDING BEYOND "THE MINISTERIAL ACT OF
ENTERING THE JUDGMENT" MAY BE HAD OR NECESSARY AFTER OUR DECISION IS
RENDERED.  RADIO STATION WOW V. JOHNSON, SUPRA AT 125. 

THE WOW OPINION NOTED THAT THE TYPICAL CASE FOR APPLYING THE BROADER,
LESS MECHANICAL APPROACH TO THE QUESTION OF FINALITY HAD INVOLVED
JUDGMENTS DIRECTING THE IMMEDIATE DELIVERY OF PROPERTY, TO BE FOLLOWED
BY AN ACCOUNTING DECREED IN THE SAME ORDER.  IT STATED, WITH REFERENCE
TO THESE AND LIKE SITUATIONS:  "IN EFFECT, SUCH A CONTROVERSY IS A
MULTIPLE LITIGATION ALLOWING REVIEW OF THE ADJUDICATION WHICH IS
CONCLUDED BECAUSE IT IS INDEPENDENT OF, AND UNAFFECTED BY, ANOTHER
LITIGATION WITH WHICH IT HAPPENS TO BE ENTANGLED."  326 U.S. AT 126. 
ACCORDINGLY, SINCE THE TWO PHASES OF THE CONTROVERSY WERE SEPARATE AND
DISTINCT, WE EXERCISED OUR JURISDICTION TO DETERMINE THE FEDERAL
QUESTIONS INVOLVED IN THE PHASE CONCLUDED BY THE STATE COURT'S
DECISION.  THIS WAS DONE, ALTHOUGH THE JUDGMENT REQUIRED FURTHER AND
POSSIBLY EXTENSIVE JUDICIAL PROCEEDINGS BEFORE THE OTHER AND SEPARABLE
PHASE OF THE ACCOUNTING COULD REACH A FINAL DETERMINATION N10.  THOSE
FURTHER PROCEEDINGS INVOLVED VERY MUCH MORE THAN "MINISTERIAL ACTS";
INDEED THE DETERMINATION OF A COMPLICATED ACCOUNTING REQUIRES THE
HIGHEST ORDER OF JUDICIAL DISCRETION. 

NOTWITHSTANDING THIS AND DESPITE THE WANT OF STRICT FINALITY,
JURISDICTION WAS SUSTAINED BECAUSE A NUMBER OF FACTORS WERE FELT TO
REQUIRE THAT ACTION IN ORDER TO GIVE EFFECT TO THE POLICY OF SEC. 237
PROVIDING FOR REVIEW, RATHER THAN TO A MERELY MECHANICAL APPLICATION OF
ITS TERMS FOR DENYING REVIEW. 

THERE WAS NOTHING TENTATIVE OR INCONCLUSIVE ABOUT THE NEBRASKA
COURT'S JUDGMENT FOR IMMEDIATE DELIVERY OF THE PROPERTY.  NOR WAS IT
NECESSARY TO EXECUTION OF THAT PHASE OF THE JUDGMENT TO HAVE
CONTEMPORANEOUS CONCLUSION OF THE ACCOUNTING PHASE.  EXCEPT FOR THE
LATTER, THE JUDGMENT WAS RIPE FOR REVIEW.  INDEED IMMEDIATE EXECUTION
WITHOUT REVIEW OF THE FEDERAL QUESTIONS AFFECTING THE DELIVERY PHASE
UNTIL AFTER THE ACCOUNTING HAD BEEN COMPLETED, OFFERED THE POSSIBILITY
OF IRREPARABLE HARM TO ONE OR POSSIBLY BOTH OF THE PARTIES.  THIS
FACTOR OBVIOUSLY TENDED TO MAKE LATER FULL REVIEW PARTLY OR WHOLLY
FUTILE.  MOREOVER, UNTIL THE DELIVERY PHASE HAD BEEN SETTLED, IT COULD
NOT BE KNOWN WHETHER THE ACCOUNTING WOULD BE NECESSARY, FOR THAT NEED
WAS CONSEQUENTIALLY INCIDENT TO AND DEPENDENT UPON DETERMINATION OF THE
CORE OF THE LITIGATION, WHICH WAS THE RIGHT TO DELIVERY. 

IN THESE CIRCUMSTANCES IT WAS RIGHTLY CONSIDERED MORE CONSISTENT WITH
THE INTENT AND PURPOSE OF SEC. 237 TO ALLOW IMMEDIATE REVIEW,
NOTWITHSTANDING THE POSSIBILITY OF A LATER FURTHER REVIEW IN THE
ACCOUNTING PHASE, THAN TO DENY REVIEW WITH THE CHANCE THAT A LATER ONE
MIGHT NOT FULLY SAVE THE PARTIES' RIGHTS.  THE SECTION'S POLICY TO
FURNISH FULL, ADEQUATE AND PROMPT REVIEW OUTWEIGHED ANY DESIGN TO
SECURE ABSOLUTE AND LITERAL "FINALITY." 

IN ALL THESE RESPECTS THIS CASE PRESENTS A PARALLEL TO THE WOW CASE
TOO CLOSE, IN MY OPINION, FOR DISTINGUISHING BETWEEN THEM.  REPUBLIC IS
NOT DIRECTED TO NEGOTIATE TERMS AND ON COMPLETING THE NEGOTIATION TO
MAKE ITS FACILITIES AVAILABLE TO PEERLESS.  IT IS ORDERED TO MAKE A
CONNECTION WITH PEERLESS AND TO BEGIN CARRYING GAS AT ONCE.  THAT PHASE
OF THE ORDER, LIKE THE DELIVERY PHASE IN THE ACCOUNTING CASES, DOES NOT
AWAIT THE FIXING OF THE TERMS WHETHER BY AGREEMENT OR BY FURTHER
ORDER.  FN11  IT IS A PRESENT OBLIGATION, EFFECTIVE IMMEDIATELY AND
WITHOUT QUALIFICATION.  FN12 SEE KNOX LOAN ASSN. V. PHILLIPS, 300 U.S.
194, 198. 

MOREOVER THERE IS NOTHING TENTATIVE OR INCONCLUSIVE ABOUT THIS PHASE
OF THE ORDER OR THE STATE JUDGMENT SUSTAINING IT.  THAT PHASE NOT ONLY
IS SEPARABLE FROM THE MATTER OF FIXING THE TERMS; LIKE THE ORDER FOR
DELIVERY IN THE WOW CASE, IT IS THE MAIN CORE OF THE CONTROVERSY TO
WHICH THE ASPECT OF FIXING TERMS IS BOTH CONSEQUENTIAL AND INCIDENTAL. 
THE WOW ORDER REQUIRED IMMEDIATE DELIVERY OF PROPERTY, WITH CONSEQUENT
POSSIBILITY OF IRREPARABLE HARM.  HERE THE ORDER REQUIRED IMMEDIATE
ACCEPTANCE OF DELIVERY, WITH SIMILAR POSSIBILITY OF INJURY FOR ONE
PARTY OR THE OTHER.  FN13 

NEITHER IS THERE GREATER LIKELIHOOD OF PIECEMEAL CONSIDERATION OF
CONSTITUTIONAL AND OTHER QUESTIONS THAN IN THE WOW CASE.  CF. 326 U.S.
AT 127.  THE MATTER OF FIXING TERMS HERE HARDLY CAN BE MORE DIFFICULT
PRACTICALLY OR MORE COMPLEX LEGALLY THAN MAKING THE ACCOUNTING IN THE
WOW CASE.  FN14  IT IS HARD ALSO TO SEE HOW ONE WOULD BE EITHER MORE OR
LESS LIKELY TO THROW UP NEW CONSTITUTIONAL ISSUES THAN THE OTHER.  NOR
CAN THE WOW CASE BE TAKEN TO RULE THAT THIS COURT COULD NOT OR WOULD
NOT CONSIDER CONSTITUTIONAL ISSUES ARISING ON THE ACCOUNTING PHASE,
UNLIKELY THOUGH THE NECESSITY FOR ITS DOING SO MAY HAVE BEEN.  THERE IS
THUS A SUBSTANTIALLY COMPLETE PARALLEL BETWEEN THE SITUATION NOW
PRESENTED AND THAT IN THE WOW LINE OF CASES. 

IN ONE RESPECT THIS CASE IS STRONGER FOR FINDING APPEALABLE
FINALITY.  FOR HERE NO FURTHER ORDER MAY BE NECESSARY OR MADE, SINCE
PRESENT RESOLUTION OF THE BASIC CONSTITUTIONAL PROBLEM IN ALL
PROBABILITY WILL END THE ENTIRE CONTROVERSY.  THAT CERTAINLY WOULD BE
THE RESULT IF THE DECISION SHOULD GO AGAINST PEERLESS OR IF REPUBLIC
SHOULD ELECT TO SHUT DOWN PRODUCTION.  AND IF THE DECISION SHOULD BE IN
PEERLESS' FAVOR, IT IS HARDLY LIKELY THAT THE PARTIES WILL BE UNABLE TO
AGREE UPON TERMS SINCE, IN CASE OF FAILURE TO AGREE, THE COMMISSION
WILL PRESCRIBE THEM.  FN15 THE CASE INDEED IS NOT BASICALLY A
CONTROVERSY OVER TERMS AT ALL.  THEY PRESENT ONLY A CONTINGENT,
COLLATERAL MATTER.  WHAT IS FUNDAMENTALLY AT STAKE IS THE RIGHT OF
REPUBLIC TO TAKE THE GAS FROM BENEATH PEERLESS' LAND AND MARKET IT
WITHOUT PAYING PEERLESS FOR IT.  ONCE THAT QUESTION IS FINALLY
DETERMINED, AS IT CAN BE ONLY BY THIS COURT'S DECISION OF THE
CONSTITUTIONAL QUESTION, THE NEED FOR A FURTHER ORDER WILL BECOME
HIGHLY IMPROBABLE. 

THIS CASE THEREFORE IS ONE IN WHICH THE NEED FOR FURTHER PROCEEDINGS
MAY NEVER ARISE AND ALMOST CERTAINLY WOULD NOT DO SO IF THE
CONSTITUTIONAL QUESTION WERE NOW DETERMINED.  INDEED, IN A CLOSER
FACTUAL APPLICATION THAN THE WOW CASE, IT PRESENTS IN THE
JURISDICTIONAL ASPECT AN ALMOST EXACT PARALLEL TO THE ORDER REVIEWED IN
PIERCE OIL CORP. V. PHOENIX REFINING CO., 259 U.S. 125, WHERE THE
OKLAHOMA COMMISSION REQUIRED THE APPELLANT TO CARRY OIL FOR THE
APPELLEE AT UNSPECIFIED RATES.  CF. GULF REFINING CO. V. UNITED STATES,
269 U.S. 125; CLARK V. WILLIARD, 292 U.S. 112. 

THE PARALLEL TO THE WOW LINE OF DECISIONS, HOWEVER, IS PUT ASIDE AND
THIS CASE IS DECIDED BY ANALOGY TO CONDEMNATION CASES, PARTICULARLY
GRAYS HARBOR LOGGING CO. V. COATS-FORDNEY CO., 243 U.S. 251.  THE
ANALOGY IS INAPPOSITE.  IT IS TRUE THAT IN SUCH CASES THIS COURT
GENERALLY, THOUGH NOT UNIFORMLY,  FN6  HAS HELD THAT THE TRIAL COURT
JUDGMENT IS NOT FINAL UNTIL AFTER THE AWARD OF COMPENSATION IS MADE. 
THE DECISIONS WERE PROPERLY RENDERED, BUT FOR REASONS NOT APPLICABLE
HERE.  IN THE GRAYS HARBOR CASE THE STATE CONSTITUTION AND CONTROLLING
LEGISLATION PROHIBITED THE TRANSFER OF THE CONDEMNED PROPERTY UNTIL
AFTER THE COMPENSATION HAD BEEN DETERMINED AND PAID.  THUS THE ISSUE OF
THE RIGHT TO TAKE WAS NECESSARILY DEPENDENT FOR FINAL RESOLUTION ON THE
DETERMINATION OF THE AMOUNT OF COMPENSATION.  FN17  THE CONTROVERSY WAS
NOT SEPARABLE INTO DISTINCT PHASES AS IN THE WOW CASE AND HERE.  243
U.S. AT 256.  FN18  NOR HAD THE STATE JUDGMENT ALREADY AFFECTED THE
APPELLANT'S PROPERTY RIGHTS, AS WAS TRUE IN THE WOW CASE AND IS TRUE
HERE. 

IN CATLIN V. UNITED STATES, 324 U.S. 229, THE QUESTION OF THE RIGHT
TO TAKE WAS SETTLED CONCLUSIVELY BELOW BEFORE THE AWARD OF DAMAGES WAS
FIXED.  BUT THERE TO HAVE PERMITTED AN APPEAL FROM THE ORDER
TRANSFERRING POSSESSION WOULD HAVE PRODUCED DELAYS INCONSISTENT WITH
THE OVERRIDING PURPOSE AND POLICY OF THE WAR PURPOSES AND DECLARATION
OF TAKING ACTS.  26 STAT. 316, AS AMENDED BY 40 STAT. 241, 518; 46
STAT. 1421.  324 U.S. AT 235, 238, 240.  HERE THE CONVERSE IS TRUE, FOR
TO REFUSE TO PASS ON THE MERITS CAN SERVE ONLY TO PROLONG THE
LITIGATION WITHOUT COMPENSATING ADVANTAGE FOR THE POLICY OF SEC. 237 OR
OTHER ENACTMENT.  THERE IS NO OVERRIDING POLICY OF INDEPENDENT
LEGISLATION, COMPARABLE TO THAT OF THE WAR PURPOSES AND DECLARATION OF
TAKING ACTS, DICTATING DENIAL OR DEFERRING OF REVIEW. 

THE ASSERTED ANALOGY TO THE GRAYS HARBOR, CATLIN AND LUXTON (SEE NOTE
17) CASES THEREFORE DOES NOT HOLD FOR THE ENTIRELY DIFFERENT SITUATIONS
NOW PRESENTED.  IN THEM EITHER THERE WAS NO SEPARABLE PHASE OF THE
LITIGATION; OR STATUTORY POLICY INDEPENDENT OF SEC. 237 OR OTHER LIKE
REQUIREMENT OF FINALITY FORBADE REVIEW BEFORE ULTIMATE DISPOSITION OF
EVERY PHASE OF THE LITIGATION IN THE STATE OR INFERIOR FEDERAL COURTS. 
THE CONDEMNATION CASES THEREFORE, THOUGH GENERALLY UNIFORM IN DENYING
REVIEW OF ORDERS FOR CONDEMNATION PRIOR TO AWARD OF DAMAGES, ARE NOT
UNIFORM IN RESTING THIS RESULT WHOLLY ON THE REQUIREMENT OF "FINALITY"
MADE BY SEC. 237 AND LIKE PROVISIONS FOR REVIEW, BUT FREQUENTLY REST ON
OTHER AND INDEPENDENT GROUNDS PERTINENT TO THE APPLICATION OF THOSE
PROVISIONS. 

THE "PENUMBRAL AREA" OF APPEALABLE FINALITY, SEE 326 U.S. AT 124, MAY
NOT BE SWEEPING IN ITS SCOPE.  IT IS NEVERTHELESS ONE ESSENTIAL TO
PREVENT THE LETTER OF THE SECTION FROM OVERRIDING ITS REASON.  FOR THIS
PURPOSE IT WOULD SEEM TO COMPREHEND ANY SITUATION PRESENTING SEPARABLE
PHASES OF LITIGATION, ONE INVOLVING THE CORE OR CRUX OF THE CONTROVERSY
BETWEEN THE PARTIES, THE OTHER COLLATERAL MATTERS DEPENDENT FOR THE
NECESSITY OF THEIR CONSIDERATION AND DECISION UPON FINAL AND
UNQUALIFIED DISPOSITION OF THE HUB OF THE DISPUTE.  IF A MERELY
MECHANICAL APPLICATION OF SEC. 237 IS TO BE AVOIDED, IT CANNOT BE TAKEN
THAT THE PRACTICAL APPROACH OF THE WOW LINE OF DECISIONS MUST BE
LIMITED EXCLUSIVELY TO CASES WHERE AN ACCOUNTING IS ORDERED TO FOLLOW
DELIVERY OF PROPERTY DECREED AT THE SAME TIME.  THE REASON OF THE
EXCEPTION, INDEED OF SEC. 237 ITSELF, IS NOT SO LIMITED.  BECAUSE THE
DELIVERY AND ACCOUNTING CASES ARE NOT THE ONLY ONES PRESENTING SUCH
PROBLEMS, JUDGMENT MUST BE GIVEN SOME PLAY IN OTHER SITUATIONS AS WELL
TO DECIDE WHETHER THE VICES EXCLUDED BY THE POLICIES UNDERLYING SEC.
237 ARE PRESENT, AS THEY MAY BE OR NOT ACCORDING TO THE CHARACTER AND
EFFECTS OF THE PARTICULAR DETERMINATION SOUGHT TO BE REVIEWED. 

FINALLY, IT HARDLY CAN BE THAT MERELY THE ALTERNATIVE CHARACTER OF
THE ORDER PER SE DEPRIVES IT OF FINALITY, REGARDLESS OF WHETHER ANY OF
THE ALTERNATIVES PRESENTS A SUBSTANTIAL FEDERAL QUESTION.  BECAUSE
REPUBLIC IS ALLOWED TO CHOOSE BETWEEN SHUTTING DOWN ITS WELLS AND
CARRYING OR PURCHASING THE PEERLESS GAS, IT SEEMS TO BE THOUGHT THAT
THE ORDER LACKS FINALITY UNTIL THAT CHOICE IS MADE, EVEN THOUGH WHEN
MADE EITHER COURSE WOULD BE CLEARLY WITHIN THE STATE'S POWER TO
REQUIRE. 

THE ARGUMENT WOULD HAVE MORE FORCE IF THE DIFFERENCE BETWEEN THE
ALTERNATIVES WERE GREAT ENOUGH TO MAKE IT LIKELY THAT CONTRARY RESULTS
MIGHT BE REACHED ON THE DIFFERENT ALTERNATIVES.  BUT WHERE AS HERE THE
DIFFERENCE EMPHASIZED, E.G., IS MERELY BETWEEN THE PASSAGE OF TITLE
BEFORE AND AFTER THE CARRIAGE, IT IS HARD TO SEE HOW THERE COULD BE
MORE DIFFICULTY WITH ONE ALTERNATIVE THAN WITH THE OTHER.  SEE PART II;
ALSO PART IV.  SO MINOR A DISTINCTION HARDLY FURNISHES A SUBSTANTIAL
BASIS FOR CONTRARIETY OF JUDICIAL OPINION ON DUE PROCESS QUESTIONS. 
NOR IS IT SUGGESTED THAT ALLOWING THE CHOICE BETWEEN EITHER OF THOSE
TWO COURSES AND SHUTTING DOWN PRESENTS GREATER DIFFICULTY.  GIVEN
CONSTITUTIONALITY OF ALL ALTERNATIVES, IT NO MORE TRANSCENDS STATE
POWER TO PERMIT THE PARTY AFFECTED TO SELECT THE COURSE LEAST ONEROUS
THAN TO REQUIRE HIM TO FOLLOW THE ONE MOST BURDENSOME.  IT IS EQUALLY
HARD TO SEE HOW GIVING THE CHOICE DESTROYS THE ORDER'S FINALITY, UNLESS
AGAIN A WHOLLY MECHANICAL CONCEPTION OF THAT TERM AS USED IN SEC. 237
IS TO CONTROL.    THE SECTION'S POLICY IS AGAINST HYPOTHETICAL,
PREMATURE AND PIECEMEAL CONSTITUTIONAL DECISION, NOT AGAINST A CHOICE
OF ALTERNATIVES PRESENTING NO SUCH PROBLEM.  HERE THE QUESTION IS
WHETHER OKLAHOMA CAN OFFER REPUBLIC THE CHOICE OF SHUTTING DOWN
PRODUCTION OR TAKING AND PAYING FOR THE PEERLESS GAS.  EITHER COURSE
WILL PROTECT THE LATTER'S RIGHTS AGAINST DRAINAGE BY REPUBLIC.  EITHER
STANDING ALONE IN THE ORDER'S TERMS WOULD NOT AFFECT FINALITY. 
NEITHER, MERELY UPON THE PREMISE THAT ALTERNATIVE CHARACTER PER SE
DESTROYS FINALITY, PRESENTS A DOUBTFUL QUESTION OF CONSTITUTIONALITY. 
AND FINALLY THE ALTERNATIVE OF SHUTTING DOWN, REALISTICALLY CONSIDERED,
IS MORE NEARLY SANCTION THAN ALTERNATIVE MODE OF COMPLIANCE.  FN19 

IN SUCH CIRCUMSTANCES TO SAY THAT COUPLING THE TWO COURSES
ALTERNATIVELY DEPRIVES THE ORDER OF FINALITY SEEMS TO ME TO BE GIVING
TO THE TERMS OF SEC. 237 A MECHANICAL APPLICATION OUT OF HARMONY WITH
THE SECTION'S POLICY, JUST AS DOES REFUSING TO DECIDE THE CASE BEFORE
IT IS KNOWN WHETHER A FURTHER ORDER MAY BE NECESSARY FOR FIXING THE
PRICE OF THE PEERLESS GAS.  SUCH A VIEW CAN ONLY HANDICAP
ADMINISTRATIVE ACTION EITHER BY FORCING ORDERS TO SPECIFY A SINGLE
COURSE OF COMPLIANCE WHEN ALTERNATIVES MAY BE MUCH MORE DESIRABLE, OR
BY DELAYING REVIEW AND THUS EFFECTIVE ADMINISTRATIVE ACTION UNTIL ONE
OR PERHAPS ALL OF THE ALTERNATIVES IN TURN ARE TRIED OUT FIRST IN
ELECTION AND THEN IN REVIEW.  A DECISION NOW WOULD SETTLE EVERY
SUBSTANTIAL PENDING PHASE OF THE CONTROVERSY.  AT THE MOST BUT A MINOR
CONSEQUENTIAL AND SEPARABLE ASPECT WOULD REMAIN FOR REMOTELY POSSIBLE
FURTHER ACTION IN THE STATE TRIBUNALS.  IT IS TO THE INTEREST OF BOTH
PARTIES, AND THE STATE AUTHORITIES AS WELL, THAT THEIR RIGHTS BE
DETERMINED AND THE CONTROVERSY BE ENDED.  AND ON THE FACTS THE QUESTION
OF JURISDICTION IS CLOSELY RELATED TO THE MERITS. 

IN VIEW OF ALL THESE CONSIDERATIONS, TO DENY THE PARTIES OUR JUDGMENT
NOW IS TO MAKE A FETISH OF TECHNICAL FINALITY WITHOUT SECURING ANY OF
THE SUBSTANTIAL ADVANTAGES FOR CONSTITUTIONAL ADJUDICATION WHICH SEC.
237, IN THE LIGHT OF ITS UNDERLYING POLICIES, WAS DESIGNED TO ATTAIN. 
INSTEAD THAT SECTION BECOMES AN INSTRUMENT OF SHEER DELAY FOR THE
PERFORMANCE OF OUR FUNCTION, FOR EXECUTING THOSE OF STATE AGENCIES, AND
FOR SETTLING PARTIES' RIGHTS.  THE SECTION HAS NO SUCH OFFICE.  BY
DECLARING NOW THAT THE STATE MAY FOLLOW EITHER OF TWO CLEARLY
PERMISSIBLE COURSES AND ALLOW THOSE WITH WHOM IT DEALS TO CHOOSE
BETWEEN THEM, WE WOULD NOT SPEAK HYPOTHETICALLY OR PREMATURELY OR
VIOLATE ANY OTHER POLICY UNDERLYING SEC. 237. 

                                 II. 

BEYOND THE MATTER OF JURISDICTION, THERE IS IN THIS CASE NO SUCH
QUESTION CONCERNING ITS EXERCISE AS AROSE IN RESCUE ARMY V. MUNICIPAL
COURT, 331 U.S. 549.  THE CONSTITUTIONAL ISSUES ARE NOT SPECULATIVE,
PREMATURE OR PRESENTED ABSTRACTLY EN MASSE.  THE "ALTERNATIVE
CHARACTER" OF THE STATE JUDGMENT DOES NOT PREVENT THE FEDERAL QUESTIONS
FROM BEING SUFFICIENTLY PRECISE AND CONCRETE FOR PURPOSES OF DECISION
HERE, ALTHOUGH VARIOUS AMBIGUITIES HAVE BEEN SUGGESTED. 

THUS IT IS SAID THAT WE CANNOT TELL WHETHER THE ORDER COMPELS
REPUBLIC TO SHARE ITS MARKET OR MERELY REQUIRES IT TO CARRY GAS TO A
MARKET WHICH PEERLESS MUST OBTAIN FOR ITSELF.  CF. THOMPSON V.
CONSOLIDATED GAS CO., 300 U.S. 55.  THE ORDER HERE IS NOT SUBJECT TO
SUCH AN AMBIGUITY.  IT IN TERMS COMMANDS REPUBLIC TO TAKE PEERLESS GAS
AND TO PAY FOR IT.  FN20 

IT IS ALSO SUGGESTED THAT WE CANNOT TELL WHETHER REPUBLIC WILL HAVE
TO PURCHASE GAS FROM PEERLESS OR JUST TRANSPORT THE GAS TO MARKET AND
ACCOUNT FOR THE PROFITS.  BUT WHETHER LEGAL TITLE PASSES AT ONE END OF
THE REPUBLIC LINE OR AT THE OTHER IS, AS WE HAVE NOTED, WHOLLY
IMMATERIAL AS A MATTER OF CONSTITUTIONAL LAW.  CF. THE PIPE LINE CASES,
234 U.S. 548.  IN EITHER EVENT UNDER THE ORDER AND JUDGMENT REPUBLIC
MUST TAKE PEERLESS GAS INTO ITS SYSTEM, MUST PAY FOR IT AND, UNLESS ITS
MARKET SHOULD EXPAND SUDDENLY FAR BEYOND PRESENT EXPECTATIONS, MUST
THEREFORE SHARE ITS MARKET WITH PEERLESS. 

IT IS SAID FURTHER THAT WE CANNOT BE SURE WHETHER THE COMMISSION
INTENDS TO MAKE REPUBLIC ACT AS A COMMON CARRIER.  THE ONLY BASIS FOR
THIS DOUBT IS THE FACT THAT THE COMMISSION'S FINDINGS STATE THAT
REPUBLIC IS A COMMON CARRIER AND COMMON PURCHASER.  BUT THE STATE
SUPREME COURT UPHELD THE ORDER ON THE ASSUMPTION THAT THOSE FINDINGS
WERE INCORRECT.  THE JUSTIFICATION FOR REQUIRING REPUBLIC TO CARRY
PEERLESS GAS IS BASED PRIMARILY ON THE FACT OF DRAINAGE CAUSED BY
REPUBLIC'S PRODUCTION. 

III. 

IT HAS BEEN NOTED PREVIOUSLY THAT THE QUESTION ON THE MERITS IS NOT
UNRELATED TO THE ISSUE OF FINALITY.  TO IT, ACCORDINGLY, ATTENTION IS
NOW DIRECTED.  THE REAL FIGHT, AS HAS BEEN STATED, IS OVER THE RIGHT OF
REPUBLIC TO DRAIN AWAY THE PEERLESS GAS WITHOUT PAYING FOR IT.  THE
QUESTION AS CAST IN LEGAL TERMS IS WHETHER THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT DENY OKLAHOMA THE POWER
TO GIVE ONE PRIVATE PRODUCER FROM A COMMON POOL THE OPTION TO SHUT DOWN
PRODUCTION ALTOGETHER OR TO PURCHASE GAS FROM ANOTHER FOR THE PURPOSE
OF ADJUSTING THEIR CORRELATIVE RIGHTS IN THE POOL, WHEN THAT IS THE
ONLY PRACTICAL OR FEASIBLE ALTERNATIVE CONSISTENT WITH PRODUCTION BY
BOTH TO PROTECT THE LATTER FROM DRAINAGE BY THE FORMER. 

REPUBLIC DENIES THE STATE'S POWER TO DO THIS.  ITS BASIC POSITION IS
THAT IT HAS A FEDERAL CONSTITUTIONAL RIGHT TO DRAIN OFF ALL THE GAS IN
THE FIELD, UNLESS OTHER OWNERS OF PRODUCING RIGHTS CAN SUPPLY THEIR OWN
FACILITIES FOR MARKETING THEIR PRODUCTION, REGARDLESS OF VARYING
CONDITIONS IN DIFFERENT COMPETITIVE SITUATIONS AND REGARDLESS OF ALL
CONSEQUENT PRACTICAL CONSIDERATIONS AFFECTING FEASIBILITY OF FURNISHING
SUCH FACILITIES. 

REPUBLIC HAS NO SUCH RIGHT.  THE CONSTITUTION DID NOT IMPRESS UPON
THE STATES IN A RIGID MOLD EITHER THE COMMON-LAW FEUDAL SYSTEM OF LAND
TENURES OR ANY OF THE MODIFIED AND VARIANT FORMS OF TENURE PREVAILING
IN THE STATES IN 1789.  RATHER IT LEFT THEM FREE TO DEVISE AND
ESTABLISH THEIR OWN SYSTEMS OF PROPERTY LAW ADAPTED TO THEIR VARYING
LOCAL CONDITIONS AND TO THE PECULIAR NEEDS AND DESIRES OF THEIR
INHABITANTS.  THE ORIGINAL CONSTITUTION PLACED NO EXPLICIT LIMITATION
UPON THE POWERS OF THE STATES IN THIS RESPECT.  FN21  NOT UNTIL THE
FOURTEENTH AMENDMENT WAS RATIFIED, NEARLY EIGHT DECADES LATER, WAS ONE
INTRODUCED. 

THE FOURTEENTH AMENDMENT WAS NOT DESIGNED TO NULLIFY STATE POWER TO
CREATE INSTITUTIONS OF PROPERTY IN ACCORD WITH LOCAL NEEDS AND
POLICIES.  WHETHER OR NOT IT WAS INTENDED TO SECURE SUBSTANTIVE
INDIVIDUAL RIGHTS AS WELL AS PROCEDURAL ONES,  FN22  IT WAS NOT A
STRAIT JACKET IMMOBILIZING STATE POWER TO CHANGE OR ALTER INSTITUTIONS
OF PROPERTY IN THE PUBLIC INTEREST.  FN23 ALMOST INNUMERABLE DECISIONS
HAVE DEMONSTRATED THIS, EVEN THOUGH THE AMENDMENT HAS BEEN EFFECTIVE TO
CREATE SUBSTANTIAL LIMITATIONS UPON THE METHODS BY WHICH THE CHANGES
DEEMED NECESSARY MAY BE MADE. 

THE BASIC QUESTION HERE IS REALLY ONE OF SUBSTANTIVE DUE PROCESS.  IT
RELATES PRIMARILY TO WHETHER OKLAHOMA CAN CURTAIL THE UNQUALIFIED RIGHT
OF CAPTURE WHICH APPELLANT CONCEIVES IT ACQUIRED BY VIRTUE OF AND AS AN
UNALTERABLE INCIDENT TO ITS ACQUISITION OF SURFACE RIGHTS INCLUDING THE
RIGHT TO DRILL FOR GAS.  FOR, IN DENYING THAT THE STATE CAN ENFORCE THE
ONLY FEASIBLE METHOD OF LIMITATION CONSISTENT WITH PRODUCTION BY
PEERLESS, REPUBLIC IN EFFECT IS SAYING THAT THE STATE CANNOT RESTRICT
ITS RIGHT TO TAKE ALL GAS IN THE COMMON RESERVOIR, INCLUDING ALL THAT
CAN BE DRAINED FROM BENEATH PEERLESS' LEASE AND THE LANDS OF OTHER
OWNERS SIMILARLY SITUATED.  THIS IS, FOR THE PARTICULAR CIRCUMSTANCES,
A DENIAL OF THE STATE'S POWER TO PROTECT CORRELATIVE RIGHTS IN THE
FIELD OR TO REGULATE APPELLANT'S TAKING IN THE INTEREST OF OTHERS
HAVING EQUAL RIGHTS PROPORTIONATE TO THEIR SURFACE HOLDINGS.  FOR,
THOUGH REPUBLIC CONCEDES IT IS BOUND BY OKLAHOMA'S STATUTORY
REQUIREMENT OF PRO RATA PRODUCTION, THAT REQUIREMENT BECOMES MERELY A
TIME FACTOR AFFECTING THE RATE AND LENGTH OF THE PERIOD OF REPUBLIC'S
DRAINAGE, NOT THE TOTAL QUANTITY EVENTUALLY TO BE TAKEN, IF REPUBLIC
CAN DEFY THE COMMISSION'S ORDER AND THUS LEAVE PEERLESS IN ITS PRESENT
HELPLESS CONDITION. 

THE CONTENTION IS BOLD AND FAR REACHING, MORE ESPECIALLY WHEN ACCOUNT
IS TAKEN OF THE NATURE OF THE INDUSTRY.  NATURAL GAS IN PLACE IS
VOLATILE AND FUGITIVE, ONCE A SINGLE OUTLET IS OPENED.  WHEN EXTRACTED
IT CANNOT BE STORED IN QUANTITY, BUT MUST BE MARKETED ULTIMATELY AT
BURNER TIPS IN THE TIME NECESSARY FOR CONVEYANCE TO THEM FROM THE WELL
MOUTH.  THE COMPETITIVE STRUGGLE FOR THE INDUSTRY'S REWARDS IS
PARTICULARLY INTENSE IN THE INITIAL STAGE OF DEVELOPING A FIELD.  BY
THE INDUSTRY'S VERY NATURE LARGE OUTLAYS OF CAPITAL ARE REQUIRED FOR
SUCCESSFUL CONTINUING PRODUCTION AND MARKETING.  ALL THOSE FACTORS
HOWEVER TEND TOWARD MONOPOLY ONCE SUCCESS HAS BEEN ACHIEVED IN A
PARTICULAR FIELD. 

THESE PECULIAR QUALITIES, MOREOVER, HAVE BEEN REFLECTED IN THE LEGAL
RIGHTS RELATING TO THE OWNERSHIP OF GAS IN PLACE, AS WELL AS ITS
EXTRACTION.  THEY HAVE BEEN ADAPTED TO ITS NATURE AND TO THAT OF THE
COMPETITIVE STRUGGLE REGARDING IT.  ONLY A SPECIALIST IN THIS BRANCH OF
THE LAW, WHICH VARIES FROM STATE TO STATE, CAN UNDERTAKE TO SAY WITH
ANY RELIABLE DEGREE OF PRECISION WHAT RIGHTS MAY BE IN PARTICULAR
SITUATIONS.  THESE DIFFICULTIES, INTENSIFIED BY THE COMPETITIVE
STRUGGLE FOR THE PRODUCT AND THE INADEQUACY OF COMMON-LAW IDEAS TO
CONTROL IT, HAVE FORCED BOTH THE STATES AND THE FEDERAL GOVERNMENT TO
ADOPT EXTENSIVE REGULATORY MEASURES IN RECENT YEARS.  THIS HAS BEEN
NECESSARY BOTH TO CONSERVE THE PUBLIC INTEREST IN THIS RAPIDLY
DEPLETING NATURAL RESOURCE  FN24 AND TO SECURE FAIR ADJUSTMENT OF
PRIVATE RIGHTS IN THE INDUSTRY.  RATHER THAN BEING A SACRED,
UNTOUCHABLE ENCLAVE OF THE COMMON LAW, THE FIELD BY ITS VERY NATURE
LENDS ITSELF ESPECIALLY TO GOVERNMENTAL INTERVENTION FOR SUCH
PURPOSES.  IN THIS RESPECT IT IS HARDLY COMPARABLE TO SITUATIONS
COMPREHENDING ONLY CONVENTIONAL MANUFACTURERS AND MERCHANTS OF
CONSUMABLE GOODS. 

IN ACCORDANCE WITH OKLAHOMA'S LAW, APPELLANT DOES NOT ASSERT TITLE TO
THE GAS IN PLACE.  IT ASSERTS ONLY THE RIGHT TO CAPTURE WHAT IT CAN
PRODUCE.  BUT THAT RIGHT, UNQUALIFIED, WOULD INCLUDE THE RIGHT TO TAKE
GAS FROM BENEATH OTHERS' LANDS.  SO TAKEN, IT DEFIES THEIR RIGHTS TO A
PROPORTIONATE SHARE AND THE STATE'S POWER TO SECURE THEM, IF FOR
REASONS RENDERING MARKETING THROUGH THEIR OWN FACILITIES UNFEASIBLE
THEY CANNOT JOIN IN THE UNRESTRAINED COMPETITIVE DRAINING. 

SO FAR AS THE FEDERAL CONSTITUTION IS CONCERNED, THERE IS NO SUCH
UNRESTRICTED FEE SIMPLE IN THE RIGHT TO DRAIN GAS FROM BENEATH AN
ADJACENT OWNER'S LAND.  IT IS FAR TOO LATE, IF IT EVER WAS OTHERWISE,
TO URGE THAT THE STATES ARE IMPOTENT TO RESTRICT THIS UNFETTERED RACE
OR TO PUT IT UPON TERMS OF PROPORTIONATE EQUALITY BY WHATEVER MEASURES
MAY BE REASONABLY NECESSARY TO THAT END.  INDEED OUR CONSTITUTIONAL
HISTORY IS REPLETE WITH INSTANCES WHERE THE STATES HAVE ALTERED AND
RESTRICTED SCHEMES OF PROPERTY RIGHTS IN RESPONSE TO THE PUBLIC
INTEREST AND THE STATES' LOCAL NEEDS.  IN SOME CASES THIS HAS GONE TO
THE EXTENT OF ABOLISHING BASIC COMMON-LAW CONCEPTIONS ENTIRELY AND
SUBSTITUTING NEW ONES INDIGENOUS TO THEIR AREAS AND THE PROBLEMS THEY
PRESENT.  PERHAPS THE MOST EXTENSIVE AND OBVIOUS ILLUSTRATIONS ARE TO
BE FOUND IN THE SYSTEMS DEVELOPED IN OUR ARID AND MOUNTAINOUS WESTERN
STATES FOR GOVERNING RIGHTS IN THE WATERS OF FLOWING STREAMS AND MINING
RIGHTS IN RESPECT TO PRECIOUS METALS.  FN25  OTHERS ARE NOT LACKING. 
FN26 

IT HARDLY CAN BE MAINTAINED THAT THE CREATION AND CONTROL OF RIGHTS
RESPECTING THE OWNERSHIP, EXTRACTION AND MARKETING OF NATURAL GAS ARE
LESS BROADLY SUBJECT TO STATE CONTROL THAN THOSE RELATING TO WATERS FOR
IRRIGATION AND OTHER USES OR TO THE EXTRACTION OF PRECIOUS METALS IN
THE REGIONS WHERE THOSE MATTERS HAVE CALLED INTO PLAY THE STATES'
AUTHORITY TO ACT IN THE MANNER BEST SUITED TO LOCAL CONDITIONS AND THE
NEEDS OF THEIR INHABITANTS.  THE SIMILARITIES OF THE SITUATIONS AND THE
PROBLEMS, FOR PURPOSES OF CONSTITUTIONALITY IN THE EXERCISE OF THOSE
POWERS, ARE SO OBVIOUS THEY DO NOT NEED TO BE SPECIFIED. 

HISTORICALLY, THE STATES' FREEDOM TO EXERCISE BROAD POWERS IN
DEFINING AND REGULATING RIGHTS OF OWNERSHIP AND PRODUCTION OF NATURAL
GAS HAS BEEN RECOGNIZED ALMOST AS LONG AND QUITE AS COMPLETELY AS THEIR
SIMILAR FREEDOMS TO ACT IN RELATION TO WATER RIGHTS AND MINING RIGHTS. 
IN A LINE OF CASES BEGINNING A HALF CENTURY AGO WITH OHIO OIL CO. V.
INDIANA, 177 U.S. 190, THIS COURT HAS UPHELD VARIOUS TYPES OF STATE
REGULATORY SCHEMES DESIGNED TO PREVENT WASTE AND TO PROTECT THE
"COEQUAL RIGHTS" OF THE SEVERAL OWNERS OF A COMMON SOURCE OF SUPPLY. 
FN27  THESE CASES CLEARLY RECOGNIZE THAT THE STATE REGULATION MAY BE
JUSTIFIED ON ALTERNATIVE GROUNDS, EITHER TO PREVENT WASTE OR TO ADJUST
PRIVATE CORRELATIVE RIGHTS.  FN28 

IT IS TRUE, AS APPELLANT POINTS OUT, THAT NONE OF THOSE CASES
PRESENTED THE SPECIFIC ISSUE OF WHETHER THE STATE MAY ADJUST
CORRELATIVE RIGHTS INDEPENDENTLY OF A CONSERVATION PROGRAM.  BUT IT IS
NOT TRUE THAT THIS POWER IS MERELY INCIDENTAL TO THE FUNDAMENTAL RIGHT
OF THE STATE TO PRESERVE ITS NATURAL RESOURCES.  IN FACT, IF ONE POWER
WERE INCIDENTAL TO THE OTHER, THE OHIO OIL CASE WOULD SUPPORT THE VIEW
THAT WASTE PREVENTION IS JUSTIFIABLE BECAUSE IT SERVES "THE PURPOSE OF
PROTECTING ALL THE COLLECTIVE OWNERS  ...  "  177 U.S. AT 210.  FN29
MOREOVER, IT IS SIGNIFICANT THAT THE OPINION IN BANDINI PETROLEUM CO.
V. SUPERIOR COURT SPECIFICALLY STATES THAT THE CALIFORNIA REGULATION IS
VALID ON ITS FACE, EVEN IF VIEWED AS A MEASURE DESIGNED PURELY FOR THE
PROTECTION OF CORRELATIVE RIGHTS.  284 U.S. 8, 22.  FN30    OKLAHOMA'S
POWER TO REGULATE CORRELATIVE RIGHTS IN THE HUGOTON FIELD THEREFORE
DOES NOT STEM FROM HER INTEREST MERELY IN THE PRESERVATION OF NATURAL
RESOURCES.  IT STEMS RATHER FROM THE BASIC AIM AND AUTHORITY OF ANY
GOVERNMENT WHICH SEEKS TO PROTECT THE RIGHTS OF ITS CITIZENS AND TO
SECURE A JUST ACCOMMODATION OF THEM WHEN THEY CLASH.  FN31  THAT
AUTHORITY IS CONSTANTLY EXERCISED IN OUR SYSTEM IN RELATION TO OTHER
TYPES OF PROPERTY.  FN32  IN VIEW OF THIS FACT AND OF WHAT HAS BEEN
SAID CONCERNING CONDITIONS IN THIS INDUSTRY, IT WOULD BE INCONGRUOUS
FOR US TO HOLD THAT OIL AND GAS LAW IS THE ONE PHASE OF PROPERTY LAW
THAT CANNOT BE MODIFIED EXCEPT FOR CONSERVATION PURPOSES.  ESPECIALLY
IN THE LIGHT OF ITS ORIGIN AND DEVELOPMENT IN A LAISSEZ FAIRE
ATMOSPHERE APPROPRIATE FOR FOSTERING INTENSE COMPETITIVE EXPANSIONS,
SEE MERRILL, THE EVOLUTION OF OIL AND GAS LAW, 13 MISS.  L.J. 281, THE
STATES SHOULD BE ALLOWED CERTAINLY NOT LESS FREEDOM TO EVOLVE NEW
PROPERTY RULES TO KEEP PACE WITH CHANGING INDUSTRIAL CONDITIONS THAN
THEY POSSESS IN NEARLY EVERY OTHER BRANCH OF THE LAW.  FN33  HERE AS
ELSEWHERE, IN CONSIDERING THE PROPER SCOPE FOR STATE EXPERIMENTATION,
IT IS IMPORTANT THAT WE INDULGE EVERY REASONABLE PRESUMPTION IN FAVOR
OF THE STATES' ACTION.  THEY SHOULD BE FREE TO IMPROVE THEIR REGULATORY
TECHNIQUES AS SCIENTIFIC KNOWLEDGE ADVANCES, FOR HERE TOO
EXPERIMENTATION IS THE LIFEBLOOD OF PROGRESS.  SEE MR. JUSTICE BRANDEIS
DISSENTING IN NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262, 280. 

                                 IV. 

THE REMAINING NARROW ISSUE IS WHETHER THE MOST PRACTICAL METHOD OF
ACHIEVING A FAIR ACCOMMODATION OF THE CORRELATIVE RIGHTS OF THE PARTIES
IS INVALID BECAUSE REPUBLIC IS REQUIRED TO TAKE AND TO PAY FOR GAS THAT
IT DOES NOT WANT - AT LEAST DOES NOT WANT IF IT MUST PAY FOR IT. 

APPELLANT RELIES HEAVILY ON THOMPSON V. CONSOLIDATED GAS CO., 300
U.S. 55, WHERE THIS COURT INVALIDATED AN ORDER LIMITING RESPONDENT'S
PRODUCTION SO SEVERELY THAT IT WOULD HAVE HAD TO PURCHASE GAS FROM
UNCONNECTED WELLS IN ITS VICINITY IN ORDER TO SATISFY ITS COMMITMENTS. 
THUS THE NECESSARY EFFECT OF THAT ORDER WAS COMPARABLE TO THE EFFECT OF
THE ORDER UNDER REVIEW HERE. 

BUT THERE IS A CRUCIAL DIFFERENCE BETWEEN THE CASES.  IN DECIDING THE
THOMPSON CASE THE COURT EXPLICITLY ASSUMED THAT THE ORDER COULD BE
UPHELD IF REASONABLY DESIGNED EITHER TO PREVENT WASTE OR "TO PREVENT
UNDUE DRAINAGE OF GAS FROM THE RESERVES OF WELL OWNERS LACKING PIPE
LINE CONNECTIONS."  FN34  BECAUSE OF A GEOLOGICAL ANOMALY THERE WAS A
GENERAL DRAINAGE IN THE GAS FIELD AWAY FROM THE CONNECTED WELLS TOWARD
THE UNCONNECTED WELLS, 300 U.S. AT 71-73, SO THAT THE PRODUCING WELLS,
RATHER THAN DRAINING GAS AWAY FROM THE DORMANT WELLS, WOULD ONLY REDUCE
THEIR OWN LOSS BY PRODUCING AS MUCH AS POSSIBLE.  THEREFORE THE
LIMITATION ON THEIR PRODUCTION COULD NOT BE JUSTIFIED, SINCE IT WAS
NEITHER FOR THE PURPOSE OF PREVENTING WASTE NOR A REASONABLE REGULATION
OF CORRELATIVE RIGHTS.  INSTEAD OF PROTECTING ONE PARTY FROM LOSS, IT
OPERATED TO AGGRAVATE THE EFFECT OF THE DRAINAGE AWAY FROM THE OWNERS
OF CONNECTED WELLS.  THEY SUFFERED, NOT ONLY BY AN INCREASED DRAINAGE
LOSS, BUT ALSO BY THE CONSEQUENCE THAT THEY WERE FORCED TO SHARE THEIR
FACILITIES AND MARKET WITH THE VERY PARTIES WHO PROFITED BY THEIR
LOSS.  THE COURT HELD THAT SUCH AN ORDER REQUIRING ONE COMPANY TO SHARE
ITS MARKET WITH ANOTHER WAS UNCONSTITUTIONAL INASMUCH AS IT WAS NOT
JUSTIFIED EITHER AS A CONSERVATION MEASURE OR AS A REASONABLE
ADJUSTMENT OF CORRELATIVE RIGHTS.  THE LATTER JUSTIFICATION IS PRESENT
IN THIS CASE. 

THE FACT THAT REPUBLIC IS COMPELLED EITHER TO PURCHASE PEERLESS' GAS
OR TO CARRY IT TO MARKET AND ACCOUNT FOR THE PROFITS DOES NOT MAKE THE
REGULATION UNREASONABLE.  IF THAT WERE THE SOLE CAUSE FOR COMPLAINT,
THE STATE COULD TAKE THE MORE DRASTIC STEP OF REQUIRING ALL THE WELL
OWNERS TO SHUT DOWN COMPLETELY UNTIL ALL WERE ABLE TO PRODUCE ON A
RATABLE BASIS OR CAME TO SOME AGREEMENT EFFECTIVE TO MAKE THIS
POSSIBLE.  IT IS CLEARLY WITHIN THE STATE'S POWER TO REQUIRE REPUBLIC
TO COMPENSATE PEERLESS FOR THE GAS DRAINED FROM UNDER THE PEERLESS
LAND.  PATTERSON V. STANOLIND CO., 305 U.S. 376.  HERE, INSTEAD OF
REQUIRING REPUBLIC TO MAKE A CASH PAYMENT BASED ON THE ESTIMATED AMOUNT
OF DRAINAGE, THE COMMISSION HAS SELECTED WHAT IS UNQUESTIONABLY A MORE
ACCURATE METHOD OF ADJUSTING THE CORRELATIVE RIGHTS.  EVEN IF IT COULD
BE ASSUMED THAT THIS METHOD IMPOSED A SOMEWHAT HEAVIER BURDEN ON
REPUBLIC THAN POSSIBLE ALTERNATIVES, IT DOES NOT FOLLOW THAT THE METHOD
SELECTED BY THE COMMISSION IS UNCONSTITUTIONAL.  FOR WE HAVE CONSTANTLY
RECOGNIZED THE PROPRIETY OF ALLOWING WIDE DISCRETION TO THE
ADMINISTRATIVE AGENCIES WHO ARE BEST QUALIFIED TO SELECT THE MOST
REASONABLE SOLUTIONS TO THE THORNY PROBLEMS THAT ACCOMPANY REGULATION
IN THIS HIGHLY TECHNICAL FIELD.  RAILROAD COMMISSION V. ROWAN & NICHOLS
OIL CO., 310 U.S. 573.  KEEPING IN MIND THE FACT THAT PROPERTY LAW IS
PECULIARLY A MATTER OF LOCAL CONCERN, THE SPECIAL DIFFICULTY OF
DEFINING AND REGULATING PROPERTY RIGHTS IN NATURAL GAS, THE RESPECT DUE
TO EXPERTS IN THIS FIELD, AND THE RATHER UNUSUAL FACTS THIS RECORD
PRESENTS, I CANNOT SAY THAT THE STATE IS WITHOUT POWER TO ENTER THIS
ORDER. 

IT IS SUGGESTED THAT THE ORDER, SINCE IT INCLUDES THE REQUIREMENT OF
PURCHASE AND NOT MERELY OF TRANSPORTATION AND ACCOUNTING FOR PROFITS,
BECOMES INVALID BECAUSE IT SHIFTS FROM PEERLESS TO REPUBLIC THE
BUSINESS RISK INCIDENT TO OWNERSHIP AND SALE OF THE GAS.  POSSIBLY THIS
MIGHT FURNISH A MORE SERIOUS BASIS FOR OBJECTION IN MATERIALLY
DIFFERENT CIRCUMSTANCES.  BUT, APART FROM WHAT HAS ALREADY BEEN SAID,
IN THOSE NOW PRESENTED I CONCEIVE NO SUBSTANTIALLY GREATER HARM TO BE
POSSIBLE, FROM THE ORDER'S OPERATION, THAN DEPRIVING REPUBLIC OF THE
RIGHT TO DRAIN GAS FROM BENEATH PEERLESS' LEASE WITHOUT LIABILITY TO
PAY FOR THE GAS SO DRAINED. 

THIS ASSUMES THAT IF THE PARTIES SHOULD BE UNABLE TO AGREE UPON TERMS
THE COMMISSION WILL FIX THEM IN A MANNER TAKING DUE ACCOUNT OF
PREVAILING MARKET CONDITIONS RELEVANT TO THE PRICE TO BE PAID, AS WELL
AS REASONABLE COMPENSATION FOR THE USE OF REPUBLIC'S FACILITIES.  WITH
THOSE LIMITATIONS PROPERLY APPLIED, IT IS HARD TO SEE WHAT GREAT
BUSINESS RISK WILL BE SHIFTED TO REPUBLIC.  FOR, AS WE HAVE ALREADY
NOTED, THE COMMODITY IS ONE NOT SUBJECT TO STORAGE, MUST BE SOLD AS
SOON AS IT IS TRANSPORTED TO THE POINT OF CONSUMPTION, AND THEREFORE
CANNOT BE SUBJECT TO POSSIBLE WIDE FLUCTUATION IN SELLING PRICE BETWEEN
THE TIMES OF PURCHASE AND SALE BY REPUBLIC. 

THE FACTS HERE, IT SEEMS TO ME, JUSTIFY THE COMMISSION'S ACTION. 
WHETHER OTHERS MATERIALLY DIFFERENT MAY DO SO SHOULD BE LEFT TO BE
CONSIDERED WHEN THEY ARISE. 

I WOULD AFFIRM THE JUDGMENT OF THE SUPREME COURT OF OKLAHOMA. 

FN1  REPUBLIC HAS 92 WELLS IN KANSAS AND 38 IN OKLAHOMA. 

FN2  THE OKLAHOMA SUPREME COURT FOUND IT UNNECESSARY TO CONSIDER
WHETHER REPUBLIC WAS EITHER A COMMON CARRIER OR A COMMON PURCHASER OF
GAS.  198 OKLA. AT 353.  THE TERM "COMMON PURCHASER" IS EXPLAINED IN
OKLA. STAT., TIT. 52, SEC. 240. 

FN3  APPELLANT CONCEDES THAT THE "OPERATION OF THE REPUBLIC WELLS IS
DRAINING GAS FROM UNDER THE DORMANT PEERLESS WELL."  THE FINDINGS OF
THE COMMISSION STATE:  "(D)  REPUBLIC  ...  IS TAKING AND WILL CONTINUE
TO TAKE MORE THAN ITS PROPORTIONATE PART OF THE NATURAL GAS IN SAID
FIELD UNLESS REQUIRED TO TAKE RATABLY FROM SAID WELL OF PEERLESS  ... 

"(E)  REPUBLIC  ...  IS DRAINING GAS FROM UNDERNEATH SAID SECTION 14
INTO WHICH SAID PEERLESS OIL AND GAS COMPANY'S WELL HAS BEEN DRILLED,
AND WILL CONTINUE TO DRAIN GAS FROM UNDERNEATH SAID SECTION 14 UNTIL
ALL THE GAS THEREUNDER HAS BEEN DRAINED AND PEERLESS  ...  WILL BE
PREVENTED FROM TAKING ITS PROPORTIONATE SHARE OF THE NATURAL GAS IN THE
FIELD UNLESS REPUBLIC  ...  IS REQUIRED TO TAKE GAS RATABLY FROM
(PEERLESS)." 

FN4  THE REPORT OF THE COMMISSION STATES:  "IT IS EVIDENT FROM ALL
THE FACTS AND CIRCUMSTANCES IN THIS CASE THAT IF THE PEERLESS COMPANY
IS TO BE ALLOWED TO PRODUCE GAS FROM ITS WELL, THIS GAS MUST BE BY IT
TRANSPORTED FIFTEEN TO THIRTY MILES, UNLESS SAID GAS IS TRANSPORTED OR
DISPOSED OF BY THE REPUBLIC NATURAL GAS COMPANY. 

"IT WOULD BE IMPRACTICAL FROM A FINANCIAL STANDPOINT TO CONSTRUCT A
PIPELINE TO ANY CITY OR OTHER MARKET OUTLET THAT WOULD TAKE SUFFICIENT
GAS TO JUSTIFY THE PRODUCTION OF THIS WELL; AND IT WOULD BE IMPOSSIBLE
TO ECONOMICALLY OPERATE THE WELL UNDER PRESENT CONDITIONS EXISTING IN
THAT FIELD UNLESS THE GAS IS TAKEN INTO THE PIPELINE OF THE REPUBLIC
NATURAL GAS COMPANY." 

FN5  OKLA. STAT., TIT. 52, SECS. 232, 233, 239, 240, 243. 

FN6  THE ORDER REQUIRED REPUBLIC "1.  ...  TO TAKE GAS RATABLY FROM
(PEERLESS) AND TO MAKE NECESSARY CONNECTION AS SOON AS APPLICANT LAYS A
LINE CONNECTING SAID WELL WITH RESPONDENT'S LINE, AND TO CONTINUE TO DO
SO UNTIL THE FURTHER ORDER OF THIS COMMISSION; PROVIDED THAT, APPLICANT
SHALL LAY ITS LINE FROM ITS WELL TO THE LINES OF RESPONDENT AT SOME
POINT DESIGNATED BY THE RESPONDENT, BUT IN SAID SECTION 14 IN WHICH
SAID WELL OF PEERLESS  ...  HAS BEEN DRILLED; AND SAID RESPONDENT IS
REQUIRED TO MAKE SAID DESIGNATION IMMEDIATELY AND WITHOUT UNREASONABLE
DELAY, AND IN EVENT OF FAILURE OF RESPONDENT SO TO DO, RESPONDENT SHALL
NO LONGER BE PERMITTED TO PRODUCE ANY OF ITS WELLS LOCATED IN THE
HUGOTON OKLAHOMA GAS FIELD. 

"2.  THE TERMS AND CONDITIONS OF SUCH TAKING OF NATURAL GAS BY
(REPUBLIC) FROM (PEERLESS) SHALL BE DETERMINED AND AGREED UPON BY AND
BETWEEN APPLICANT AND RESPONDENT; AND IN THE EVENT SAID PARTIES ARE
UNABLE TO AGREE, APPLICANT AND RESPONDENT ARE HEREBY GRANTED THE RIGHT
TO MAKE FURTHER APPLICATION TO THE COMMISSION FOR AN ORDER FIXING SUCH
TERMS AND CONDITIONS; AND THE COMMISSION RETAINS JURISDICTION HEREOF
FOR SAID PURPOSE." 

FN7  SEE NOTE 6.  THE ORDER'S LANGUAGE LEAVES NO ROOM FOR THE
INFERENCE, WHICH APPEARS TO BE INJECTED HERE, THAT THE TAKING WAS NOT
REQUIRED TO BEGIN UNTIL THE TERMS HAD BEEN AGREED UPON OR DETERMINED BY
FURTHER ORDER. 

FN8  SOME OF THE CONSIDERATIONS ARE ENUMERATED IN RADIO STATION WOW
V. JOHNSON, 326 U.S. 120, 123-124. 

FN9  UNDER CALIFORNIA PROCEDURE THE STATE SUPREME COURT'S UNQUALIFIED
ORDER FOR REVERSAL WAS "EFFECTIVE TO REMAND THE CASE 'FOR A NEW TRIAL
AND (PLACE) THE PARTIES IN THE SAME POSITION AS IF THE CASE HAD NEVER
BEEN TRIED.'"  331 U.S. AT 546 AND AUTHORITIES CITED.  THE EFFECT WAS
THUS TO LEAVE ALL ISSUES INCONCLUSIVELY DETERMINED PENDING FURTHER
PROCEEDINGS IN THE TRIAL COURT. 

FN10  THE TWO PRIOR DECISIONS DEEMED DECISIVE AGAINST MECHANICAL
DETERMINATION OF FINALITY IN SUCH SITUATIONS WERE FORGAY V. CONRAD, 6
HOW.  201, AND CARONDELET CANAL CO. V. LOUISIANA, 233 U.S. 362, THE
FORMER OF WHICH WE NOTED HAD "STOOD ON OUR BOOKS FOR NEARLY A HUNDRED
YEARS IN AN OPINION CARRYING THE AUTHORITY, ESPECIALLY WEIGHTY IN SUCH
MATTERS, OF CHIEF JUSTICE TANEY."  326 U.S. 120, 125. 

FN11  SEE NOTES 6, 7 SUPRA AND TEXT. 

FN12  IN THE REMOTE EVENT THAT REPUBLIC SHOULD ELECT TO SHUT DOWN
PRODUCTION, THERE WOULD BE NO NEED FOR A FURTHER ORDER OR AGREEMENT OF
THE PARTIES, AND THE PRESENTLY ERECTED OBSTACLE TO FINALITY WOULD BE
COMPLETELY REMOVED. 

FN13  TO PERMIT REPUBLIC TO CONTINUE DRAINAGE FROM BENEATH PEERLESS'
LAND FOR THE INDEFINITE PERIOD REQUIRED FOR SENDING THE CASE BACK TO
THE OKLAHOMA TRIBUNALS AND THEN BRINGING IT BACK HERE A SECOND TIME
WILL BE TO DEPRIVE PEERLESS OF THAT GAS UNLESS THE STATE LAW ALLOWS
COMPENSATION FOR SUCH CONTINUED TAKING FROM THE DATE OF THE PRESENT
ORDER.  IT IS AT LEAST HIGHLY DOUBTFUL THAT THE STATE LAW ALLOWS SUCH A
REMEDY, EVEN IF THE ORDER IS EVENTUALLY HELD VALID. 

ON THE OTHER HAND, IF THE ORDER SHOULD BE INVALIDATED ON THE DEFERRED
REVIEW, REPUBLIC WILL HAVE BEEN PUT TO FURTHER AND UNNECESSARY DELAY,
UNCERTAINTY AND EXPENSE IN ASCERTAINING ITS RIGHTS, MERELY TO SECURE A
DETERMINATION WHICH CANNOT POSSIBLY AFFECT THEM.  IF THIS MAY NOT BE
IRREPARABLE INJURY, IT CERTAINLY IS NOT THE POLICY OF SEC. 237. 

FN14  IN VIEW OF MARKETING CONDITIONS IN THIS INDUSTRY, NO SUCH
PROBLEM OF VALUATION OR OF REACHING AGREEMENT UPON IT WOULD BE
PRESENTED AS, FOR INSTANCE, IN THE CASE OF SEEKING TO PLACE A VALUE
UPON REAL ESTATE TAKEN BY CONDEMNATION FOR PUBLIC USE OR VALUATION OF
PROPERTY FOR RATE-MAKING PURPOSES.  THE IDEA THAT DETERMINING THE VALUE
OF THE GAS TAKEN HERE WOULD PRESENT ALL THE DIFFICULTIES OF VALUING A
RAILROAD FOR RATE-MAKING PURPOSES BLOWS THE MATTER UP BEYOND ALL THE
PRACTICALITIES OF THE SITUATION. 

FN15  SEE NOTE 14. 

FN16  WHEELING & BELMONT BRIDGE CO. V. WHEELING BRIDGE CO., 138 U.S.
287. 

FN17  THE SAME WAS SAID TO BE TRUE OF LUXTON V. NORTH RIVER BRIDGE
CO., 147 U.S. 337.  SEE ID. 341. 

FN18  MOREOVER, UNDER STATE PRACTICE REVIEW OF THE CONDEMNATION ORDER
BY THE STATE SUPREME COURT WAS BY CERTIORARI, NOT BY APPEAL WHICH LAY
ONLY FROM THE ORDER FIXING DAMAGES.  AS A MATTER OF STATE LAW,
THEREFORE, THE JUDGMENT ON THE CONDEMNATION ORDER WAS INTERLOCUTORY. 
SEE, HOWEVER, AS TO THIS CATLIN V. UNITED STATES, 324 U.S. 229, 234;
LUXTON V. NORTH RIVER BRIDGE CO., 147 U.S. 337. 

FN19  CF. WABASH AND ERIE CANAL V. BEERS, 1 BLACK 54; MILWAUKEE AND
MINNESOTA R. CO. V. SOUTTER, 2 WALL.  440. 

CONTROL OF PRODUCTION, OF COURSE, IS THE CORE OF STATE CONSERVATION
PROGRAMS.  IN CHAMPLIN RFG.  CO. V. COMM'N, 286 U.S. 210, PRORATION
ORDERS LIMITING PRODUCTION OF OIL WELLS TO AS LITTLE AS SIX PER CENT OF
CAPACITY WERE SUSTAINED.  SEE P. 229.  CF. WALLS V. MIDLAND CARBON CO.,
254 U.S. 300; LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61.  THE
POWER OF A STATE TO PROTECT CORRELATIVE RIGHTS HARDLY CAN BE REGARDED
AS FURNISHING A LESS SOLID BASIS FOR CONTROL OF PRODUCTION THAN THE
POWER TO PREVENT WASTE.  SEE NOTE 29 AND TEXT INFRA.    FN20  IN ITS
REPORT THE COMMISSION CONCLUDED THAT REPUBLIC SHOULD BE REQUIRED TO "
...  ALLOW THE PEERLESS GAS TO ENTER THE REPUBLIC PIPELINE, AND PAY THE
PEERLESS COMPANY FOR THE GAS."  THE ORDER ITSELF IN UNQUALIFIED TERMS
DIRECTS REPUBLIC "TO TAKE GAS RATABLY FROM (PEERLESS)  ...  AS SOON AS
APPLICANT LAYS A LINE CONNECTING SAID WELL WITH RESPONDENT'S LINE  ...
"  SEE NOTES 6, 7. 

SINCE NEITHER THE COMMISSION'S REPORT NOR THE STATE SUPREME COURT'S
OPINION SUGGESTS THAT THE COMMAND WAS QUALIFIED BY THE CONDITION THAT
PEERLESS OBTAIN ITS OWN MARKET, WE NEED NOT READ SUCH A CONDITION INTO
THE ORDER.  THE COMMISSION REPORT STATES THAT "REPUBLIC OFFERS TO
TRANSPORT THE PEERLESS GAS IF MARKET CAN BE OBTAINED BY (PEERLESS)  ...
" 

FN21  THE NEAREST APPROXIMATIONS PERHAPS WERE IN THE PROHIBITIONS
AGAINST STATE LEGISLATION IMPAIRING THE OBLIGATION OF CONTRACTS AND
AGAINST EX POST FACTO LEGISLATION BEFORE THE LATTER WAS LIMITED TO
CRIMINAL AND PENAL CONSEQUENCES.  CALDER V. BULL, 3 DALL.  386.  SEE
HALE, THE SUPREME COURT AND THE CONTRACT CLAUSE, 57 HARV. L. REV. 512,
621, 852. 

FN22  SEE MR. JUSTICE BLACK DISSENTING IN MCCART V. INDIANAPOLIS
WATER CO., 302 U.S. 419, 423; BOUDIN, TRUTH AND FICTION ABOUT THE
FOURTEENTH AMENDMENT, 16 N.Y.U.L.Q. REV. 19. 

FN23  IT IS PRECISELY IN CASES WHERE THE AMENDMENT HAS BEEN MADE THUS
EFFECTIVE, OFTEN BY GIVING EXPANSIVE SCOPE TO THE IDEA OF "PROPERTY,"
THAT ITS INTERPRETATIONS HAVE FAILED TO WITHSTAND THE TEST OF TIME. 
COMPARE RIBNIK V. MCBRIDE, 277 U.S. 350, WITH OLSEN V. NEBRASKA, 313
U.S. 236; ADAIR V. UNITED STATES, 208 U.S. 161, AND COPPAGE V. KANSAS,
236 U.S. 1, WITH PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 187;
LOCHNER V. NEW YORK, 198 U.S. 45, AND ADKINS V. CHILDREN'S HOSPITAL,
261 U.S. 525, WITH WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379. 

FN24  CF. POWER COMM'N V. HOPE GAS CO., 320 U.S. 591, DISSENTING
OPINION OF MR. JUSTICE JACKSON AT 628. 

FN25  SEE CLARK V. NASH, 198 U.S. 361; FALLBROOK IRRIGATION DISTRICT
V. BRADLEY, 164 U.S. 112; KANSAS V. COLORADO, 206 U.S. 46, 93-94;
UNITED STATES V. RIO GRANDE DAM & IRRIGATION CO., 174 U.S. 690, 702
703; STRICKLEY V. HIGHLAND BOY GOLD MINING CO., 200 U.S. 527; PARLEY'S
PARK SILVER MINING CO. V. KERR, 130 U.S. 256; BUTTE CITY WATER CO. V.
BAKER, 196 U.S. 119; KENDALL V. SAN JUAN SILVER MINING CO., 144 U.S.
658; CLASON V. MATKO, 223 U.S. 646. 

FN26  HEAD V. AMOSKEAG MFG. CO., 113 U.S. 9; WURTS V. HOAGLAND, 114
U.S. 606; BACON V. WALKER, 204 U.S. 311; CF. FERRY V. SPOKANE, P. &
S.R. CO., 258 U.S. 314; CAMPBELL V. CALIFORNIA, 200 U.S. 87. 

FN27  OHIO OIL CO. V. INDIANA, 177 U.S. 190; LINDSLEY V. NATURAL
CARBONIC GAS CO., 220 U.S. 61; WALLS V. MIDLAND CARBON CO., 254 U.S.
300; BANDINI PETROLEUM CO. V. SUPERIOR COURT, 284 U.S. 8; CHAMPLIN
REFINING CO. V. CORPORATION COMMISSION, 286 U.S. 210; HUNTER CO. V.
MCHUGH, 320 U.S. 222. 

FN28  SEE HARDWICKE, THE RULE OF CAPTURE, 13 TEX. L. REV. 391, 414
422; MARSHALL AND MEYERS, LEGAL PLANNING OF PETROLEUM PRODUCTION, 41
YALE L.J. 33, 48-52; ELY, THE CONSERVATION OF OIL, 51 HARV. L. REV.
1209, 1222-1225; FORD, CONTROLLING THE PRODUCTION OF OIL, 30 MICH. L.
REV. 1170, 1181, 1192. 

FN29  INDEPENDENTLY OF ANY STATUTE, SEVERAL STATES HAVE GRANTED
EQUITABLE RELIEF AGAINST WASTE IN ORDER TO PROTECT THE CORRELATIVE
RIGHTS OF COMMON OWNERS OF A RESERVOIR OF GAS OR OIL.  LOUISVILLE GAS
CO. V. KENTUCKY HEATING CO., 117 KY. 71; MANUFACTURERS GAS AND OIL CO.
V. INDIANA NATURAL GAS AND OIL CO., 155 IND. 461, 474-475; ROSS V.
DAMM, 278 MICH. 388; HIGGINS OIL & FUEL CO. V. GUARANTY OIL CO., 145
LA. 233; ATKINSON V. VIRGINIA OIL & GAS CO., 72 W. VA. 707. 

FN30  THE SUPREME COURT OF TEXAS HAS RECENTLY UPHELD ADMINISTRATIVE
ACTION DESIGNED SOLELY TO PROTECT CORRELATIVE RIGHTS.  CORZELIUS V.
HARRELL, 143 TEX. 509.  NOTE, 24 TEX. L. REV. 97. 

FN31  OKLAHOMA CAN PREVENT AGENTS OF REPUBLIC FROM GOING ON PEERLESS'
LAND BY FORCE OF ARMS AND THERE DRILLING A WELL AND STEALING GAS.  THE
STATE'S POWER TO PREVENT LARCENY AND TRESPASS AND TO ENJOIN ANY USE OF
PROPERTY THAT CREATES A NUISANCE FOR A NEIGHBORING PROPERTY OWNER ALSO
JUSTIFIES THE REGULATION OF COMMON PROPERTY FOR THE MUTUAL ADVANTAGE OF
ITS SEVERAL OWNERS.  HEAD V. AMOSKEAG MFG. CO., 113 U.S. 9; BACON V.
WALKER, 204 U.S. 311. 

UNDER CERTAIN CIRCUMSTANCES A STATE MAY COMPEL ONE INDIVIDUAL TO
SURRENDER PRIVATE PROPERTY SOLELY TO ENABLE ANOTHER TO EXPLOIT THE
POTENTIAL RESOURCES OF HIS PRIVATE PROPERTY.  THUS IN CLARK V. NASH,
198 U.S. 361, THE PLAINTIFF'S LAND COULD BE MADE PRODUCTIVE ONLY BY
ENLARGING AN IRRIGATION DITCH ACROSS DEFENDANT'S LAND, AND IN STRICKLEY
V. HIGHLAND BOY GOLD MINING COMPANY, 200 U.S. 527, THE MINING COMPANY
COULD DELIVER ITS ORE TO MARKET ONLY BY CONSTRUCTING AN AERIAL BUCKET
LINE ACROSS DEFENDANT'S LAND.  HERE PEERLESS CAN EXPLOIT ITS PROPERTY
ONLY IF REPUBLIC IS COMPELLED TO TAKE ITS GAS TO MARKET.  MOREOVER,
UNTIL PEERLESS IS ABLE TO PRODUCE THE GAS UNDER ITS LAND, THIS GAS WILL
CONTINUE TO BE WITHDRAWN BY REPUBLIC.  IN EFFECT REPUBLIC IS NOW
EXPLOITING PEERLESS' PROPERTY. 

FN32  E.G., HEAD V. AMOSKEAG MFG. CO., 113 U.S. 9; WURTS V. HOAGLAND,
114 U.S. 606; FALLBROOK IRRIGATION DISTRICT V. BRADLEY, 164 U.S. 112;
BACON V. WALKER, 204 U.S. 311; PLYMOUTH COAL CO. V. PENNSYLVANIA, 232
U.S. 531; JACKMAN V. ROSENBAUM CO., 260 U.S. 22. 

FN33  "IT IS SUBMITTED THAT THROUGH THE JUDICIAL AND LEGISLATIVE
PROCESSES CORRELATIVE RIGHT-DUTY RELATIONS AGAINST INJURY AND NON
COMPENSATED AND PREVENTABLE DRAINAGE DO EXIST, BUT THE DIFFICULTY OF
FINDING AND PROVING THE FACTS IN A PARTICULAR SITUATION IS SUCH THAT
THE USUAL REMEDIES OF DAMAGES AND INJUNCTION MIGHT NOT BE PRACTICABLE. 
IT SEEMS MORE ADVISABLE THAT LEGISLATURES ENACT STATUTES EXPRESSLY
DECLARING THE EXISTENCE OF THESE CORRELATIVE RIGHT-DUTY RELATIONS IN
LANDOWNERS, APART FROM PUBLIC RIGHTS AGAINST WASTE, AND AUTHORIZE AN
ADMINISTRATIVE AGENCY, AFTER A FINDING OF FACTS, TO PROMULGATE RULES
AND REGULATIONS FOR THEIR PROTECTION AND AUTHORIZE THE COMMISSION OR
PRIVATE OWNERS TO ENFORCE SUCH RULES AND REGULATIONS THROUGH ACTIONS IN
THE COURTS."  SUMMERS, LEGAL RIGHTS AGAINST DRAINAGE OF OIL AND GAS, 18
TEX. L. REV. 27, 47. 

FN34  300 U.S. AT 76-77.  THIS ASSUMPTION IS REPEATED SEVERAL TIMES
IN THE OPINION.  SEE 300 U.S. AT 58, 67, 69 AND 72-73. 
..END :













UNITED STATES V. GRIFFITH, 334 U.S. 100 


NO. 64.  ARGUED DECEMBER 15, 1947.  - DECIDED MAY 3, 1948.  - 68
F.SUPP.  180, REVERSED. 


1.  EVEN IN THE ABSENCE OF A SPECIFIC INTENT TO RESTRAIN OR MONOPOLIZE
TRADE, IT IS VIOLATIVE OF SECS. 1 AND 2 OF THE SHERMAN ACT FOR FOUR
AFFILIATED CORPORATIONS OPERATING MOTION PICTURE THEATRES IN NUMEROUS
TOWNS IN THREE STATES AND HAVING NO COMPETITORS IN SOME OF THESE TOWNS
TO USE THE BUYING POWER OF THE ENTIRE CIRCUIT TO OBTAIN EXCLUSIVE
PRIVILEGES FROM FILM DISTRIBUTORS WHICH PREVENT COMPETITORS FROM
OBTAINING ENOUGH FIRST- OR SECOND-RUN FILMS TO OPERATE SUCCESSFULLY. 
PP. 101-110. 

(A)  IT IS NOT ALWAYS NECESSARY TO FIND A SPECIFIC INTENT TO RESTRAIN
TRADE OR TO BUILD A MONOPOLY IN ORDER TO FIND THAT SECS. 1 AND 2 OF THE
SHERMAN ACT HAVE BEEN VIOLATED.  IT IS SUFFICIENT THAT A RESTRAINT OF
TRADE OR MONOPOLY RESULTS AS THE CONSEQUENCE OF THE DEFENDANTS' CONDUCT
OR BUSINESS ARRANGEMENTS.  P. 105. 

(B)  SPECIFIC INTENT IN THE SENSE IN WHICH THE COMMON LAW USED THE
TERM IS NECESSARY ONLY WHERE THE ACTS FALL SHORT OF THE RESULTS
PROHIBITED BY THE SHERMAN ACT.  P. 105. 

(C)  THE USE OF MONOPOLY POWER, HOWEVER LAWFULLY ACQUIRED, TO
FORECLOSE COMPETITION, TO GAIN A COMPETITIVE ADVANTAGE, OR TO DESTROY A
COMPETITOR, IS UNLAWFUL.  PP. 106-107. 

(D)  IT IS UNLAWFUL FOR THE OPERATOR OF A CIRCUIT OF MOTION PICTURE
THEATRES TO USE HIS MONOPOLY IN TOWNS IN WHICH HE HAS NO COMPETITORS TO
OBTAIN EXCLUSIVE RIGHTS TO FILMS FOR TOWNS IN WHICH HE HAS
COMPETITORS.  PP. 107-109. 

(E)  THE EXHIBITORS IN THIS CASE HAVING COMBINED WITH EACH OTHER AND
WITH THE DISTRIBUTORS TO OBTAIN MONOPOLY RIGHTS, HAD FORMED A
CONSPIRACY IN VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN ACT.  P. 109. 

2.  THE DISTRICT COURT HAVING ERRONEOUSLY DISMISSED THE COMPLAINT IN
THIS CASE WITHOUT MAKING ADEQUATE FINDINGS AS TO THE EFFECT OF THE
PRACTICES FOUND BY THIS COURT TO BE UNLAWFUL, THE CASE IS REMANDED TO
THE DISTRICT COURT FOR FURTHER FINDINGS AND THE FASHIONING OF A DECREE
WHICH WILL UNDO AS NEAR AS MAY BE THE WRONGS THAT WERE DONE AND PREVENT
THEIR RECURRENCE IN THE FUTURE.  PP. 109-110. 

UNITED STATES V. GRIFFITH ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF OKLAHOMA. 

IN A SUIT BY THE UNITED STATES TO RESTRAIN VIOLATIONS OF SECS. 1 AND
2 OF THE SHERMAN ACT, THE DISTRICT COURT FOUND THAT THERE WAS NO
VIOLATION OF THE ACT AND DISMISSED THE COMPLAINT ON THE MERITS.  68
F.SUPP.  180.  ON APPEAL TO THIS COURT, REVERSED AND REMANDED, P. 110. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT BY THE UNITED STATES IN THE DISTRICT COURT TO
PREVENT AND RESTRAIN APPELLEES FROM VIOLATING SECS. 1 AND 2 OF THE
SHERMAN ACT.  26 STAT. 209, AS AMENDED, 50 STAT. 693, 15 U.S.C. SECS.
1, 2.  THE DISTRICT COURT, FINDING THERE WAS NO VIOLATION OF THE ACT IN
ANY OF THE RESPECTS CHARGED IN THE COMPLAINT, DISMISSED THE COMPLAINT
ON THE MERITS.  68 F.SUPP.  180.  THE CASE IS HERE BY APPEAL UNDER SEC.
2 OF THE EXPEDITING ACT OF FEBRUARY 11, 1903, 32 STAT. 823, AS AMENDED,
15 U.S.C. SEC. 29, AND SEC. 238 OF THE JUDICIAL CODE, AS AMENDED BY THE
ACT OF FEBRUARY 13, 1925, 43 STAT. 936, 938, 28 U.S.C. SEC. 345. 

THE APPELLEES ARE FOUR AFFILIATED CORPORATIONS AND TWO INDIVIDUALS
WHO ARE ASSOCIATED WITH THEM AS STOCKHOLDERS AND OFFICERS.  FN1  THE
CORPORATIONS OPERATE (OR OWN STOCK IN CORPORATIONS WHICH OPERATE)
MOVING PICTURE THEATRES IN OKLAHOMA, TEXAS, AND NEW MEXICO.  WITH MINOR
EXCEPTIONS, THE THEATRES WHICH EACH CORPORATION OWNS DO NOT COMPETE
WITH THOSE OF ITS AFFILIATES BUT ARE IN SEPARATE TOWNS.  IN APRIL,
1939, WHEN THE COMPLAINT WAS FILED, THE CORPORATE APPELLEES HAD
INTERESTS IN THEATRES IN 85 TOWNS.  IN 32 OF THOSE TOWNS THERE WERE
COMPETING THEATRES.  FIFTY-THREE OF THE TOWNS (62 PER CENT) WERE CLOSED
TOWNS, I.E. TOWNS IN WHICH THERE WERE NO COMPETING THEATRES.  FIVE
YEARS EARLIER THE CORPORATE APPELLEES HAD THEATRES IN APPROXIMATELY 37
TOWNS, 18 OF WHICH WERE COMPETITIVE AND 19 OF WHICH (51 PER CENT) WERE
CLOSED.  IT WAS DURING THAT FIVE-YEAR PERIOD THAT THE ACTS AND
PRACTICES OCCURRED WHICH, ACCORDING TO THE ALLEGATIONS OF THE
COMPLAINT, CONSTITUTE VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT. 

PRIOR TO THE 1938-1939 SEASON THESE EXHIBITORS USED A COMMON AGENT TO
NEGOTIATE WITH THE DISTRIBUTORS FOR FILMS FOR THE ENTIRE CIRCUIT.  FN2
BEGINNING WITH THE 1938-1939 SEASON ONE AGENT NEGOTIATED FOR THE
CIRCUIT REPRESENTED BY TWO OF THE CORPORATE APPELLEES, AND ANOTHER
AGENT NEGOTIATED FOR THE CIRCUIT REPRESENTED BY THE OTHER TWO CORPORATE
APPELLEES.  A MASTER AGREEMENT WAS USUALLY EXECUTED WITH EACH
DISTRIBUTOR COVERING FILMS TO BE RELEASED BY THE DISTRIBUTOR DURING AN
ENTIRE SEASON.  FN3  THERE WERE VARIATIONS AMONG THE MASTER
AGREEMENTS.  BUT IN THE MAIN THEY PROVIDED AS FOLLOWS:  (A)  THEY
LUMPED TOGETHER TOWNS IN WHICH THE APPELLEES HAD NO COMPETITION AND
TOWNS IN WHICH THERE WERE COMPETING THEATRES.  (B)  THEY GENERALLY
LICENSED THE FIRST-RUN EXHIBITION IN PRACTICALLY ALL OF THE THEATRES IN
WHICH APPELLEES HAD A SUBSTANTIAL INTEREST OF SUBSTANTIALLY ALL OF THE
FILMS TO BE RELEASED BY THE DISTRIBUTOR DURING THE PERIOD OF A YEAR. 
FN4 (C)  THEY SPECIFIED THE TOWNS FOR WHICH SECOND RUNS WERE LICENSED
FOR EXHIBITION BY APPELLEES, THE SECOND-RUN RENTAL SOMETIMES BEING
INCLUDED IN THE FIRST-RUN RENTAL.  (D)  THE RENTAL SPECIFIED OFTEN WAS
THE TOTAL MINIMUM REQUIRED TO BE PAID (IN EQUAL WEEKLY OR QUARTERLY
INSTALLMENTS) BY THE CIRCUIT AS A WHOLE FOR USE OF THE FILMS THROUGHOUT
THE CIRCUIT, THE APPELLEES SUBSEQUENTLY ALLOCATING THE RENTAL AMONG THE
THEATRES WHERE THE FILMS WERE EXHIBITED.  (E)  FILMS COULD BE PLAYED
OUT OF THE ORDER OF THEIR RELEASE, SO THAT A SPECIFIED FILM NEED NOT BE
PLAYED IN A PARTICULAR THEATRE AT ANY SPECIFIED TIME.  FN5 

THE COMPLAINT CHARGED THAT CERTAIN EXCLUSIVE PRIVILEGES WHICH THESE
AGREEMENTS GRANTED THE APPELLEE EXHIBITORS OVER THEIR COMPETITORS
UNREASONABLY RESTRAINED COMPETITION BY PREVENTING THEIR COMPETITORS
FROM OBTAINING ENOUGH FIRST- OR SECOND-RUN FILMS FROM THE DISTRIBUTORS
FN6  TO OPERATE SUCCESSFULLY.  THE EXCLUSIVE PRIVILEGES CHARGED AS
VIOLATIONS WERE PREEMPTION IN THE SELECTION OF FILMS AND THE RECEIPT OF
CLEARANCES OVER COMPETING THEATRES.  IT ALSO CHARGED THAT THE USE OF
THE BUYING POWER OF THE ENTIRE CIRCUIT IN ACQUIRING THOSE EXCLUSIVE
PRIVILEGES VIOLATED THE ACT. 

THE DISTRICT COURT FOUND NO CONSPIRACY BETWEEN THE APPELLEE EXHIBITORS
OR BETWEEN THEM AND THE DISTRIBUTORS, WHICH VIOLATED THE ACT.  IT FOUND
THAT THE AGREEMENTS UNDER WHICH FILMS WERE DISTRIBUTED WERE NOT IN
RESTRAINT OF TRADE; THAT THE APPELLEES DID NOT MONOPOLIZE OR ATTEMPT TO
MONOPOLIZE THE LICENSING OR SUPPLY OF FILM FOR FIRST RUN OR FOR ANY
SUBSEQUENT RUN; THAT THE APPELLEES DID NOT CONSPIRE TO COMPEL THE
DISTRIBUTORS TO GRANT THEM THE EXCLUSIVE PRIVILEGE OF SELECTING FILMS
BEFORE THE FILMS WERE MADE AVAILABLE TO ANY COMPETING EXHIBITOR; THAT
THERE WAS NO AGREEMENT BETWEEN DEFENDANTS AND DISTRIBUTORS GRANTING
DEFENDANTS UNREASONABLE CLEARANCES; THAT THE APPELLEES DID NOT COMPEL
OR ATTEMPT TO COMPEL DISTRIBUTORS TO GRANT THEM PRIVILEGES NOT GRANTED
THEIR COMPETITORS OR WHICH GAVE THEM ANY SUBSTANTIAL ADVANTAGE OVER
THEIR COMPETITORS; AND THAT APPELLEES DID NOT CONDITION THE LICENSING
OF FILMS IN ANY COMPETITIVE SITUATION ON THE LICENSING OF SUCH FILMS IN
A NON-COMPETITIVE SITUATION, OR VICE VERSA. 

THE APPELLANT INTRODUCED EVIDENCE DESIGNED TO SHOW THE EFFECT OF THE
MASTER AGREEMENTS IN SOME TWENTY-ODD COMPETITIVE SITUATIONS.  THE
DISTRICT COURT MADE DETAILED FINDINGS ON THIS PHASE OF THE CASE TO THE
EFFECT THAT DIFFICULTIES WHICH COMPETITORS HAD IN GETTING DESIRABLE
FILMS AFTER APPELLEE EXHIBITORS ENTERED THEIR TOWNS, THE INROADS
APPELLEES MADE ON THE BUSINESS OF COMPETITORS, AND THE PURCHASES BY
APPELLEES OF THEIR COMPETITORS WERE NOT THE RESULT OF THREATS OR
COERCION NOR THE RESULT OF AN UNLAWFUL CONSPIRACY, BUT SOLELY THE
CONSEQUENCE OF LAWFUL COMPETITIVE PRACTICES. 

IN UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, A GROUP OF
AFFILIATED EXHIBITORS, SUCH AS WE HAVE IN THE PRESENT CASE, WERE FOUND
TO HAVE VIOLATED SECS. 1 AND 2 OF THE SHERMAN ACT BY THE POOLING OF
THEIR BUYING POWER AND THE NEGOTIATION OF MASTER AGREEMENTS SIMILAR TO
THOSE WE HAVE HERE.  A DIFFERENCE BETWEEN THAT CASE AND THE PRESENT
ONE, WHICH THE DISTRICT COURT DEEMED TO BE VITAL, WAS THAT IN THE
FORMER THE BUYING POWER WAS USED FOR THE AVOWED PURPOSE OF ELIMINATING
COMPETITION AND OF ACQUIRING A MONOPOLY OF THEATRES IN THE SEVERAL
TOWNS, WHILE NO SUCH PURPOSE WAS FOUND TO EXIST HERE.  TO BE MORE
SPECIFIC, THE DEFENDANTS IN THE FORMER CASE THROUGH THE POOLING OF
THEIR BUYING POWER INCREASED THEIR LEVERAGE OVER THEIR COMPETITIVE
SITUATIONS BY INSISTING THAT THEY BE GIVEN MONOPOLY RIGHTS IN TOWNS
WHERE THEY HAD COMPETITION, ELSE THEY WOULD GIVE A DISTRIBUTOR NO
BUSINESS IN THEIR CLOSED TOWNS. 

IT IS, HOWEVER, NOT ALWAYS NECESSARY TO FIND A SPECIFIC INTENT TO
RESTRAIN TRADE OR TO BUILD A MONOPOLY IN ORDER TO FIND THAT THE ANTI
TRUST LAWS HAVE BEEN VIOLATED.  IT IS SUFFICIENT THAT A RESTRAINT OF
TRADE OR MONOPOLY RESULTS AS THE CONSEQUENCE OF A DEFENDANT'S CONDUCT
OR BUSINESS ARRANGEMENTS.  UNITED STATES V. PATTEN, 226 U.S. 525, 543;
UNITED STATES V. MASONITE CORP., 316 U.S. 265, 275.  TO REQUIRE A
GREATER SHOWING WOULD CRIPPLE THE ACT.  AS STATED IN UNITED STATES V.
ALUMINUM CO. OF AMERICA, 148 F.2D 416, 432, "NO MONOPOLIST MONOPOLIZES
UNCONSCIOUS OF WHAT HE IS DOING."  SPECIFIC INTENT IN THE SENSE IN
WHICH THE COMMON LAW USED THE TERM IS NECESSARY ONLY WHERE THE ACTS
FALL SHORT OF THE RESULTS CONDEMNED BY THE ACT.  THE CLASSICAL
STATEMENT IS THAT OF MR. JUSTICE HOLMES SPEAKING FOR THE COURT IN SWIFT
& CO. V. UNITED STATES, 196 U.S. 375, 396: 

"WHERE ACTS ARE NOT SUFFICIENT IN THEMSELVES TO PRODUCE A RESULT
WHICH THE LAW SEEKS TO PREVENT - FOR INSTANCE, THE MONOPOLY - BUT
REQUIRE FURTHER ACTS IN ADDITION TO THE MERE FORCES OF NATURE TO BRING
THAT RESULT TO PASS, AN INTENT TO BRING IT TO PASS IS NECESSARY IN
ORDER TO PRODUCE A DANGEROUS PROBABILITY THAT IT WILL HAPPEN. 
COMMONWEALTH V. PEASLEE, 177 MASSACHUSETTS, 267, 272.  BUT WHEN THAT
INTENT AND THE CONSEQUENT DANGEROUS PROBABILITY EXIST, THIS STATUTE,
LIKE MANY OTHERS AND LIKE THE COMMON LAW IN SOME CASES, DIRECTS ITSELF
AGAINST THAT DANGEROUS PROBABILITY AS WELL AS AGAINST THE COMPLETED
RESULT." 

AND SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, SUPRA, PP. 431
432.  AND SO, EVEN IF WE ACCEPT THE DISTRICT COURT'S FINDINGS THAT
APPELLEES HAD NO INTENT OR PURPOSE UNREASONABLY TO RESTRAIN TRADE OR TO
MONOPOLIZE, WE ARE LEFT WITH THE QUESTION WHETHER A NECESSARY AND
DIRECT RESULT OF THE MASTER AGREEMENTS WAS THE RESTRAINING OR
MONOPOLIZING OF TRADE WITHIN THE MEANING OF THE SHERMAN ACT. 

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 SEC. 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 SEC. 1.  FOR THOSE
THINGS WHICH ARE CONDEMNED BY SEC. 2 ARE IN LARGE MEASURE MERELY THE
END PRODUCTS OF CONDUCT WHICH VIOLATES SEC. 1.  STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, 61.  BUT THAT IS NOT ALWAYS TRUE.  SECTION 1
COVERS CONTRACTS, COMBINATIONS, OR CONSPIRACIES IN RESTRAINT OF TRADE. 
FN7  SECTION 2 IS NOT RESTRICTED TO CONSPIRACIES OR COMBINATIONS TO
MONOPOLIZE  FN8  BUT ALSO MAKES IT A CRIME FOR ANY PERSON TO MONOPOLIZE
OR TO ATTEMPT TO MONOPOLIZE ANY PART OF INTERSTATE OR FOREIGN TRADE OR
COMMERCE.  SO IT IS THAT MONOPOLY POWER, WHETHER LAWFULLY OR UNLAWFULLY
ACQUIRED, MAY ITSELF CONSTITUTE AN EVIL AND STAND CONDEMNED UNDER SEC.
2 EVEN THOUGH IT REMAINS UNEXERCISED.  FN9  FOR SEC. 2 OF THE ACT IS
AIMED, INTER ALIA, AT THE ACQUISITION OR RETENTION OF EFFECTIVE MARKET
CONTROL.  SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416,
428, 429.  HENCE THE EXISTENCE OF POWER "TO EXCLUDE COMPETITION WHEN IT
IS DESIRED TO DO SO" IS ITSELF A VIOLATION OF SEC. 2, PROVIDED IT IS
COUPLED WITH THE PURPOSE OR INTENT TO EXERCISE THAT POWER.  AMERICAN
TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 809, 811, 814.  IT IS
INDEED "UNREASONABLE, PER SE, TO FORECLOSE COMPETITORS FROM ANY
SUBSTANTIAL MARKET."  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392, 396.  THE ANTI-TRUST LAWS ARE AS MUCH VIOLATED BY THE PREVENTION
OF COMPETITION AS BY ITS DESTRUCTION.  UNITED STATES V. ALUMINUM CO. OF
AMERICA, SUPRA.  IT FOLLOWS A FORTIORI THAT THE USE OF MONOPOLY POWER,
HOWEVER LAWFULLY ACQUIRED, TO FORECLOSE COMPETITION, TO GAIN A
COMPETITIVE ADVANTAGE, OR TO DESTROY A COMPETITOR, IS UNLAWFUL. 

A MAN WITH A MONOPOLY OF THEATRES IN ANY ONE TOWN COMMANDS THE
ENTRANCE FOR ALL FILMS INTO THAT AREA.  IF HE USES THAT STRATEGIC
POSITION TO ACQUIRE EXCLUSIVE PRIVILEGES IN A CITY WHERE HE HAS
COMPETITORS, HE IS EMPLOYING HIS MONOPOLY POWER AS A TRADE WEAPON
AGAINST HIS COMPETITORS.  IT MAY BE A FEEBLE, INEFFECTIVE WEAPON WHERE
HE HAS ONLY ONE CLOSED OR MONOPOLY TOWN.  BUT AS THOSE TOWNS INCREASE
IN NUMBER THROUGHOUT A REGION, HIS MONOPOLY POWER IN THEM MAY BE USED
WITH CRUSHING EFFECT ON COMPETITORS IN OTHER PLACES.  FN10  HE NEED NOT
BE AS CRASS AS THE EXHIBITORS IN UNITED STATES V. CRESCENT AMUSEMENT
CO., SUPRA, IN ORDER TO MAKE HIS MONOPOLY POWER EFFECTIVE IN HIS
COMPETITIVE SITUATIONS.  THOUGH HE MAKES NO THREAT TO WITHHOLD THE
BUSINESS OF HIS CLOSED OR MONOPOLY TOWNS UNLESS THE DISTRIBUTORS GIVE
HIM THE EXCLUSIVE FILM RIGHTS IN THE TOWNS WHERE HE HAS COMPETITORS,
THE EFFECT IS LIKELY TO BE THE SAME WHERE THE TWO ARE JOINED.  WHEN THE
BUYING POWER OF THE ENTIRE CIRCUIT IS USED TO NEGOTIATE FILMS FOR HIS
COMPETITIVE AS WELL AS HIS CLOSED TOWNS, HE IS USING MONOPOLY POWER TO
EXPAND HIS EMPIRE.  AND EVEN IF WE ASSUME THAT A SPECIFIC INTENT TO
ACCOMPLISH THAT RESULT IS ABSENT, HE IS CHARGEABLE IN LEGAL
CONTEMPLATION WITH THAT PURPOSE SINCE THE END RESULT IS THE NECESSARY
AND DIRECT CONSEQUENCE OF WHAT HE DID.  UNITED STATES V. PATTEN, SUPRA,
P. 543. 

THE CONSEQUENCE OF SUCH A USE OF MONOPOLY POWER IS THAT FILMS ARE
LICENSED ON A NON-COMPETITIVE BASIS IN WHAT WOULD OTHERWISE BE
COMPETITIVE SITUATIONS.  THAT IS THE EFFECT WHETHER ONE EXHIBITOR MAKES
THE BARGAIN WITH THE DISTRIBUTOR OR WHETHER TWO OR MORE EXHIBITORS LUMP
TOGETHER THEIR BUYING POWER, AS APPELLEES DID HERE.  IT IS IN EITHER
CASE A MISUSE OF MONOPOLY POWER UNDER THE SHERMAN ACT.  IF MONOPOLY
POWER CAN BE USED TO BEGET MONOPOLY, THE ACT BECOMES A FEEBLE
INSTRUMENT INDEED.  LARGE-SCALE BUYING IS NOT, OF COURSE, UNLAWFUL PER
SE.  IT MAY YIELD PRICE OR OTHER LAWFUL ADVANTAGES TO THE BUYER.  IT
MAY NOT, HOWEVER, BE USED TO MONOPOLIZE OR TO ATTEMPT TO MONOPOLIZE
INTERSTATE TRADE OR COMMERCE.  NOR, AS WE HOLD IN UNITED STATES V.
PARAMOUNT PICTURES, INC., POST, P. 131, MAY IT BE USED TO STIFLE
COMPETITION BY DENYING COMPETITORS LESS FAVORABLY SITUATED ACCESS TO
THE MARKET. 

APPELLEES WERE CONCEDEDLY USING THEIR CIRCUIT BUYING POWER TO OBTAIN
FILMS.  THEIR CLOSED TOWNS WERE LINKED WITH THEIR COMPETITIVE TOWNS. 
NO EFFORT OF CONCEALMENT WAS MADE AS EVIDENCED BY THE FACT THAT THE
RENTAL SPECIFIED WAS AT TIMES THE TOTAL MINIMUM AMOUNT REQUIRED TO BE
PAID BY THE CIRCUIT AS A WHOLE.  MONOPOLY RIGHTS IN THE FORM OF CERTAIN
EXCLUSIVE PRIVILEGES WERE BARGAINED FOR AND OBTAINED.  THESE EXCLUSIVE
PRIVILEGES, BEING ACQUIRED BY THE USE OF MONOPOLY POWER, WERE
UNLAWFULLY ACQUIRED.  THE APPELLEES, HAVING COMBINED WITH EACH OTHER
AND WITH THE DISTRIBUTORS TO OBTAIN THOSE MONOPOLY RIGHTS, FORMED A
CONSPIRACY IN VIOLATION OF SECS. 1 AND 2 OF THE ACT.  IT IS PLAIN FROM
THE COURSE OF BUSINESS THAT THE COMMERCE AFFECTED WAS INTERSTATE. 
UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA, PP. 180, 183-184. 
WHAT EFFECT THESE PRACTICES ACTUALLY HAD ON THE COMPETITORS OF APPELLEE
EXHIBITORS OR ON THE GROWTH OF THE GRIFFITH CIRCUIT WE DO NOT KNOW. 
THE DISTRICT COURT, HAVING STARTED WITH THE ASSUMPTION THAT THE USE OF
CIRCUIT BUYING POWER WAS WHOLLY LAWFUL, NATURALLY ATTRIBUTED NO EVIL TO
IT AND THUS TREATED THE MASTER AGREEMENTS AS LEGITIMATE WEAPONS OF
COMPETITION.  SINCE IT FOUND THAT NO COMPETITORS WERE DRIVEN OUT OF
BUSINESS, OR ACQUIRED BY APPELLEES, OR IMPEDED IN THEIR BUSINESS BY
THREATS OR COERCION, IT CONCLUDED THAT APPELLEES HAD NOT VIOLATED THE
SHERMAN ACT IN ANY OF THE WAYS CHARGED IN THE COMPLAINT.  THESE
FINDINGS ARE PLAINLY INADEQUATE IF WE START, AS WE MUST, FROM THE
PREMISE THAT THE CIRCUIT BUYING POWER WAS UNLAWFULLY EMPLOYED.  ON THE
RECORD AS WE READ IT, IT CANNOT BE DOUBTED THAT THE MONOPOLY POWER OF
APPELLEES HAD SOME EFFECT ON THEIR COMPETITORS AND ON THE GROWTH OF THE
GRIFFITH CIRCUIT.  ITS EXTENT MUST BE DETERMINED ON A REMAND OF THE
CAUSE.  WE REMIT TO THE DISTRICT COURT NOT ONLY THAT PROBLEM BUT ALSO
THE FASHIONING OF A DECREE WHICH WILL UNDO AS NEAR AS MAY BE THE WRONGS
THAT WERE DONE AND PREVENT THEIR RECURRENCE IN THE FUTURE.  SEE UNITED
STATES V. CRESCENT AMUSEMENT CO., SUPRA, PP. 189-190; SCHINE CHAIN
THEATRES V. UNITED STATES, POST, P. 110; UNITED STATES V. PARAMOUNT
PICTURES, INC., POST, P. 131.  REVERSED. 

FN1  GRIFFITH AMUSEMENT CO., CONSOLIDATED THEATRES, INC., R.E.
GRIFFITH THEATRES, INC., WESTEX THEATRES, INC., H.J. GRIFFITH, AND L.C.
GRIFFITH.  R. E. GRIFFITH, A BROTHER OF H. J. AND L. C. GRIFFITH, WAS A
DEFENDANT, BUT DIED WHILE THE SUIT WAS PENDING IN THE DISTRICT COURT
AND THE ACTION WAS NOT REVIVED AGAINST HIS ESTATE OR PERSONAL
REPRESENTATIVE. 

FN2  THE CIRCUIT INCLUDES THE FOUR CORPORATE APPELLEES AND THEIR
AFFILIATED EXHIBITORS.  WHEN LESS THAN THE FULL OWNERSHIP OF A THEATRE
WAS ACQUIRED, THE CONTRACT WOULD PROVIDE THAT THE BUYING AND BOOKING OF
FILMS WAS EXCLUSIVELY IN THE HANDS OF THE GRIFFITH INTERESTS. 

FN3  THE AGREEMENT NEGOTIATED BY THE COMMON AGENT WOULD BE EXECUTED
BETWEEN A DISTRIBUTOR AND EACH OF THE CORPORATE APPELLEES OR BETWEEN A
DISTRIBUTOR AND AN INDIVIDUAL EXHIBITOR. 

FN4  THERE WERE A FEW FRANCHISE AGREEMENTS COVERING FILMS TO BE
RELEASED BY A DISTRIBUTOR DURING A TERM OF YEARS, USUALLY FOR THREE
YEARS AND IN ONE INSTANCE FOR FIVE YEARS. 

THE THEATRES OF APPELLEES IN OKLAHOMA CITY WERE SECOND, NOT FIRST,
RUN THEATRES. 

FN5  THE PRIVILEGE WAS FREQUENTLY CONDITIONED ON THE PLAYING OF, OR
PAYING FOR, A DESIGNATED QUANTITY OF THE FILM OBLIGATION DURING STATED
PORTIONS OF THE SEASON. 

FN6  THOSE ARE THE EIGHT MAJOR FILM DISTRIBUTORS WHO ORIGINALLY WERE
DEFENDANTS.  THE CHARGE THAT THESE DISTRIBUTORS CONSPIRED WITH EACH
OTHER WAS ELIMINATED FROM THE COMPLAINT AND THEY WERE DISMISSED AS
DEFENDANTS BY STIPULATION OR ON MOTION OF APPELLANT.  BUT THE CHARGE
THAT EACH OF THE DISTRIBUTORS HAD CONSPIRED WITH THE APPELLEE
EXHIBITORS WAS RETAINED. 

FN7  SECTION 1 PROVIDES:  "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 HEREBY DECLARED
TO BE ILLEGAL.  ...  " 

FN8  SECTION 2 PROVIDES:  "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  ...  " 

FN9  SO ALSO A CONSPIRACY TO MONOPOLIZE VIOLATES SEC. 2 EVEN THOUGH
MONOPOLY POWER WAS NEVER ACQUIRED.  AMERICAN TOBACCO CO. V. UNITED
STATES, 328 U.S. 781, 789. 

FN10  IT WAS SAID IN UNITED STATES V. UNITED STATES STEEL CORP., 251
U.S. 417, 451, THAT MERE SIZE IS NOT OUTLAWED BY SEC. 2.  BUT SIZE IS
OF COURSE AN EARMARK OF MONOPOLY POWER.  MOREOVER, AS STATED BY JUSTICE
CARDOZO, SPEAKING FOR THE COURT IN UNITED STATES V. SWIFT & CO., 286
U.S. 106, 116, "SIZE CARRIES WITH IT AN OPPORTUNITY FOR ABUSE THAT IS
NOT TO BE IGNORED WHEN THE OPPORTUNITY IS PROVED TO HAVE BEEN UTILIZED
IN THE PAST." 

MR. JUSTICE FRANKFURTER DISSENTS, SUBSTANTIALLY FOR THE REASONS SET
FORTH IN THE OPINION OF THE DISTRICT COURT, 68 F.SUPP.  180. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :








SCHINE THEATRES V. UNITED STATES, 334 U.S. 110 


NO. 10.  ARGUED DECEMBER 15, 1947.  - DECIDED MAY 3, 1948.  - 63
F.SUPP.  229, AFFIRMED IN PART AND REVERSED IN PART. 


THE UNITED STATES SUED TO RESTRAIN VIOLATIONS OF SECS. 1 AND 2 OF THE
SHERMAN ACT BY A PARENT CORPORATION, THREE OF ITS OFFICERS AND
DIRECTORS AND FIVE OF ITS SUBSIDIARIES, WHICH OWNED OR HAD A FINANCIAL
INTEREST IN A LARGE CHAIN OF MOTION PICTURE THEATRES LOCATED IN SIX
STATES.  THE DISTRICT COURT FOUND THAT THEY HAD USED THE COMBINED
BUYING POWER OF THE ENTIRE CIRCUIT TO NEGOTIATE MASTER AGREEMENTS WITH
THE MAJOR FILM DISTRIBUTORS, WHICH HAD THE EFFECT OF DEPRIVING
COMPETITORS OF FIRST- AND SECOND-RUN FILMS; OBTAINED FROM THE
DISTRIBUTORS UNREASONABLE "CLEARANCES," LONG-TERM AGREEMENTS FOR
RENTALS OF FILMS AND OTHER CONCESSIONS WHICH GAVE THEM UNREASONABLE
ADVANTAGES OVER COMPETITORS; THREATENED TO BUILD THEATRES OR TO OPEN
CLOSED THEATRES IN ORDER TO STOP OR PREVENT COMPETITION; CUT ADMISSION
PRICES; OBTAINED FROM COMPETITORS WHOM THEY BOUGHT OUT AGREEMENTS NOT
TO COMPETE FOR LONG TERMS OF YEARS, WHICH SOMETIMES EXTENDED TO TOWNS
OTHER THAN THOSE IN WHICH THE PURCHASED THEATRES OPERATED; AND THUS
CONSPIRED WITH EACH OTHER AND WITH THE EIGHT MAJOR FILM DISTRIBUTORS TO
VIOLATE SECS. 1 AND 2 OF THE SHERMAN ACT.  THE DISTRICT COURT ENJOINED
THESE PRACTICES AND ORDERED DEFENDANTS TO DIVEST THEMSELVES OF CERTAIN
THEATRES.  DEFENDANTS APPEALED.  HELD: 

1.  IN NEGOTIATING FOR FILMS, THE COMBINING OF THEATRES IN TOWNS IN
WHICH THE CIRCUIT HAD A MONOPOLY WITH THOSE IN TOWNS IN WHICH IT HAD
COMPETITORS WAS A RESTRAINT OF TRADE AND A USE OF MONOPOLY POWER IN
VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN ACT.  UNITED STATES V.
GRIFFITH, ANTE, P. 100.  P. 116. 

2.  THE CONCERTED ACTION OF THE PARENT COMPANY, ITS SUBSIDIARIES, AND
CERTAIN OF THE PARENT COMPANY'S OFFICERS AND DIRECTORS IN THAT ENDEAVOR
WAS A CONSPIRACY WHICH WAS NOT IMMUNIZED BY REASON OF THE FACT THAT THE
MEMBERS WERE CLOSELY AFFILIATED RATHER THAN INDEPENDENT.  P. 116. 

3.  THE NEGOTIATIONS WHICH APPELLANTS HAD WITH THE DISTRIBUTORS AND
WHICH RESULTED IN THE EXECUTION OF MASTER AGREEMENTS BETWEEN THE
DISTRIBUTORS AND EXHIBITORS BROUGHT THE DISTRIBUTORS INTO THE UNLAWFUL
COMBINATION WITH THE DEFENDANTS.  P. 116. 

4.  A CONSPIRACY BETWEEN THE EXHIBITORS AND EACH OF THE NAMED
DISTRIBUTORS HAVING BEEN ESTABLISHED BY INDEPENDENT EVIDENCE, INTER
OFFICE LETTERS AND MEMORANDA BETWEEN OFFICIALS OF THE DISTRIBUTORS WERE
ADMISSIBLE IN EVIDENCE AGAINST ALL CONSPIRATORS AS DECLARATIONS OF SOME
OF THE ASSOCIATES, SO FAR AS THEY WERE IN FURTHERANCE OF THE UNLAWFUL
PROJECT.  PP. 116-117. 

5.  DETAILED CHALLENGES TO CERTAIN FINDINGS ON WHICH THE DISTRICT
COURT BASED ITS HOLDING THAT APPELLANTS HAD VIOLATED THE ACT ARE
EXAMINED AND THE FINDINGS ARE SUSTAINED (PP. 117-124), EXCEPT IN THE
FOLLOWING RESPECTS: 

(A)  THE FINDING THAT APPELLANTS OBTAINED FILM-RENTAL CONCESSIONS NOT
MADE AVAILABLE TO INDEPENDENT OPERATORS IS NOT INTELLIGIBLE AND IS SET
ASIDE, IN ORDER THAT IT MAY BE CLARIFIED ON REMAND OF THE CAUSE.  P.
120. 

(B)  A BARE FINDING THAT APPELLANTS AT TIMES CUT ADMISSION PRICES
WITHOUT A SHOWING THAT SUCH ACTION WAS IN PURPOSE OR EFFECT EMPLOYED AS
AN INSTRUMENT OF MONOPOLY POWER IS NOT ADEQUATE TO SUPPORT AN
INJUNCTION AGAINST PRICE CUTTING.  PP. 120-121. 

(C)  THE FINDINGS AS TO "UNREASONABLE CLEARANCES" ARE SET ASIDE, IN
ORDER THAT THE DISTRICT COURT MAY MAKE FURTHER FINDINGS WHICH REFLECT
AN APPRAISAL OF THE COMPLEX FACTORS BEARING ON THE QUESTION OF
REASONABLENESS.  SEE UNITED STATES V. PARAMOUNT PICTURES, INC., POST,
P. 131.  PP. 121-124. 

6.  DETAILED OBJECTIONS TO THOSE PARTS OF THE DECREE WHICH ENJOINED
APPELLANTS FROM SPECIFIED ACTS OR PRACTICES ARE CONSIDERED AND THE
DECREE IS SUSTAINED (PP. 125-126), EXCEPT IN THE FOLLOWING RESPECTS: 

(A)  TO THE EXTENT THAT PROVISIONS OF THE DECREE ARE DIRECTED TO
PRACTICES REFLECTED IN FINDINGS SET ASIDE BY THIS COURT, THEY MUST BE
RE-EXAMINED BY THE DISTRICT COURT ON REMAND OF THE CAUSE.  P. 125. 

(B)  THE GENERAL INJUNCTION AGAINST "MONOPOLIZING" FIRST- AND SECOND
RUN FILMS IS SET ASIDE, SINCE THE PRECISE PRACTICES FOUND TO HAVE
VIOLATED THE ACT SHOULD BE SPECIFICALLY ENJOINED.  PP. 125-126. 

7.  THE PROVISIONS OF THE DECREE WHICH REQUIRE APPELLANTS TO DIVEST
THEMSELVES OF CERTAIN THEATRES ARE SET ASIDE SO THAT THE DISTRICT COURT
CAN MAKE THE FINDINGS NECESSARY FOR AN APPROPRIATE DECREE.  PP. 126
130. 

(A)  IN THIS TYPE OF CASE, AN INJUNCTION AGAINST FUTURE VIOLATIONS IS
NOT ADEQUATE TO PROTECT THE PUBLIC INTEREST, AND DIVESTITURE OR
DISSOLUTION IS AN ESSENTIAL FEATURE OF THE DECREE.  P. 128. 

(B)  DIVESTITURE OR DISSOLUTION MUST TAKE ACCOUNT OF THE PRESENT AND
FUTURE CONDITIONS OF THE PARTICULAR INDUSTRY AS WELL AS PAST
VIOLATIONS.  P. 128. 

(C)  IT SERVES SEVERAL FUNCTIONS:  (1) IT PUTS AN END TO THE
COMBINATION OR CONSPIRACY WHEN THAT IS ITSELF THE VIOLATION; (2) IT
DEPRIVES THE DEFENDANTS OF THE BENEFITS OF THEIR CONSPIRACY; AND (3) IT
IS DESIGNED TO BREAK UP OR RENDER IMPOTENT THE MONOPOLY POWER WHICH
VIOLATES THE ACT.  PP. 128-129. 

(D)  IN APPLYING THIS REMEDY, IT IS ESSENTIAL FOR THE DISTRICT COURT
TO DETERMINE WHAT WERE THE FRUITS OF THE UNLAWFUL CONSPIRACY AND TO
CONSIDER WHAT IS THE BEST WAY OF REQUIRING APPELLANTS TO SURRENDER
THEM.  P. 129. 

(E)  EVEN AFTER APPELLANTS ARE DEPRIVED OF THE FRUITS OF THEIR
CONSPIRACY, IT WILL BE NECESSARY FOR THE DISTRICT COURT TO CONSIDER
WHETHER APPELLANTS' THEATRE CIRCUIT WILL STILL CONSTITUTE A MONOPOLY
POWER OF THE KIND WHICH THE ACT CONDEMNS, IN SPITE OF THE RESTRICTIVE
PROVISIONS OF THE DECREE.  PP. 129-130. 

8.  THE PROVISIONS OF THE DECREE PROVIDING FOR THE DISSOLUTION OF THE
POOLING AGREEMENTS, THE PROHIBITION AGAINST BUYING OR BOOKING FILMS FOR
THEATRES IN WHICH APPELLANTS HAVE NO FINANCIAL INTEREST, AND THE
RESTRICTION ON FUTURE ACQUISITIONS OF THEATRES, ARE APPROVED.  PP. 127
130. 

SCHINE CHAIN THEATRES, INC. ET AL. V. UNITED STATES. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF NEW YORK. 

IN A SUIT BY THE UNITED STATES TO RESTRAIN VIOLATIONS OF SECS. 1 AND
2 OF THE SHERMAN ACT BY A LARGE CHAIN OF MOTION PICTURE EXHIBITORS, THE
DISTRICT COURT ENTERED A DECREE ENJOINING CERTAIN PRACTICES AND
REQUIRING THE CHAIN TO DIVEST ITSELF OF CERTAIN THEATRES.  63 F.SUPP. 
229.  ON APPEAL TO THIS COURT, AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED, P. 130. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO NO. 64, UNITED STATES V. GRIFFITH, ANTE,
P. 100, AND IS HERE BY WAY OF APPEAL FROM THE DISTRICT COURT.  THE
APPELLANTS, WHO WERE DEFENDANTS BELOW, ARE A PARENT COMPANY, THREE OF
ITS OFFICERS AND DIRECTORS, AND FIVE OF ITS WHOLLY OWNED SUBSIDIARIES -
TO WHOM WE REFER COLLECTIVELY AS SCHINE.  AS OF MAY 19, 1942, SCHINE
OWNED OR HAD A FINANCIAL INTEREST IN A CHAIN OF APPROXIMATELY 148
MOTION PICTURE THEATRES  FN1  LOCATED IN 76 TOWNS IN 6 STATES,  FN2 THE
GREATER PORTION BEING 78 THEATRES IN 41 TOWNS IN NEW YORK AND 36
THEATRES IN 17 TOWNS IN OHIO.  OF THE 76 TOWNS, 60 WERE CLOSED TOWNS,
I.E., PLACES WHERE SCHINE HAD THE ONLY THEATRE OR ALL THE THEATRES IN
TOWN.  FN3  THIS CHAIN WAS ACQUIRED BEGINNING IN 1920 AND IS THE
LARGEST INDEPENDENT THEATRE CIRCUIT IN THE COUNTRY.  SINCE 1931 SCHINE
ACQUIRED 118 THEATRES.  SINCE 1928 THE CLOSED TOWNS INCREASED BY 56. 
IN 1941 THERE WERE ONLY THREE TOWNS IN WHICH SCHINE'S COMPETITORS WERE
PLAYING MAJOR FILM PRODUCTS. 

THE UNITED STATES SUED TO PREVENT AND RESTRAIN APPELLANTS FROM
VIOLATING SECS. 1 AND 2 OF THE SHERMAN ACT.  26 STAT. 209, 50 STAT.
693, 15 U.S.C. SECS. 1, 2.  THE COMPLAINT CHARGED THAT THE SCHINE
INTERESTS BY POOLING THEIR ENTIRE CIRCUIT BUYING POWER IN THE
NEGOTIATION OF FILMS FROM THE DISTRIBUTORS SO AS TO COMBINE ITS CLOSED
AND OPEN TOWNS GOT ADVANTAGES FOR ITSELF AND IMPOSED RESTRICTIONS ON
ITS COMPETITORS WHICH OTHERWISE WOULD NOT HAVE BEEN POSSIBLE.  IT
CHARGED THAT THE DISTRIBUTORS GRANTED CERTAIN FAVORS TO SCHINE WHICH
WERE WITHHELD FROM SCHINE'S COMPETITORS, E.G., GIVING SCHINE THE FIRST
RUN, REFUSING AT TIMES SECOND RUNS TO SCHINE'S COMPETITORS, CHARGING
SCHINE WITH LOWER RENTALS THAN IT CHARGED OTHERS, LICENSING TO SCHINE
FILMS IN EXCESS OF SCHINE'S REASONABLE REQUIREMENTS. 

THE COMPLAINT ALSO CHARGED THAT SCHINE HAD FORCED OR ATTEMPTED TO
FORCE COMPETITORS OUT OF BUSINESS AND WHERE COMPETITORS WOULD NOT SELL
OUT TO SCHINE HAD THREATENED TO BUILD OR HAD BUILT AN OPPOSITION
THEATRE, HAD THREATENED TO DEPRIVE OR HAD DEPRIVED COMPETITORS OF A
DESIRABLE FILM OR RUN, HAD CUT ADMISSION PRICES, AND HAD ENGAGED IN
OTHER UNFAIR PRACTICES.  IN THESE AND OTHER WAYS IT WAS CHARGED THAT
SCHINE HAD USED ITS CIRCUIT BUYING POWER TO MAINTAIN ITS MONOPOLY AND
TO RESTRAIN TRADE.  THE CONSPIRACY CHARGED WAS BETWEEN THE SCHINE
DEFENDANTS THEMSELVES AND BETWEEN THEM AND THE DISTRIBUTORS. 

THE DISTRICT COURT FOUND THAT THE APPELLANTS HAD CONSPIRED WITH EACH
OTHER AND WITH THE EIGHT MAJOR FILM DISTRIBUTORS N4 TO VIOLATE SEC. 1
AND SEC. 2 OF THE SHERMAN ACT.  ITS FINDINGS MAY BE SUMMARIZED AS
FOLLOWS: 

THE ENTIRE CIRCUIT BUYING POWER WAS UTILIZED TO NEGOTIATE FILMS FOR
ALL THE THEATRES FROM THE DISTRIBUTORS, THE NEGOTIATIONS ENDING IN
MASTER AGREEMENTS BETWEEN A DISTRIBUTOR AND THE EXHIBITOR.  THIS LARGE
BUYING POWER  FN5  GAVE SCHINE THE "OPPORTUNITY TO EXERT PRESSURE ON
THE DISTRIBUTORS TO OBTAIN PREFERENCES."  MOREOVER, SCHINE BY COMBINING
ITS CLOSED AND OPEN TOWNS IN ITS NEGOTIATIONS FOR FILMS WAS ABLE "TO
DICTATE TERMS TO THE DISTRIBUTORS."  SCHINE BOUGHT FILMS FOR SOME
THEATRES IN WHICH IT HAD NO FINANCIAL INTEREST (BUT AS RESPECTS MOST OF
WHICH IT HAD AN OPTION TO PURCHASE).  IT ALSO PERFORMED THE SERVICE
(UNDER SO-CALLED POOLING AGREEMENTS) FOR GROUPS OF THEATRES IN WHICH IT
AND OTHERS WERE INTERESTED.  THROUGH THE USE OF SUCH BUYING POWER
SCHINE ARBITRARILY DEPRIVED COMPETITORS OF FIRST- AND SECOND-RUN
PICTURES, WAS ABLE IN MANY TOWNS TO SECURE UNREASONABLE CLEARANCES  FN6
YEAR AFTER YEAR OF FROM 90 TO 180 DAYS, OBTAINED LONG-TERM AGREEMENTS
FOR RENTAL OF FILM (FRANCHISES) WHICH GAVE IT PREFERENCES NOT GIVEN
INDEPENDENT OPERATORS,  FN7  AND RECEIVED MORE ADVANTAGEOUS CONCESSIONS
FROM THE DISTRIBUTORS RESPECTING ADMISSION PRICES THAN COMPETITORS WERE
ABLE TO GET.  SCHINE MADE THREATS TO BUILD OR TO OPEN CLOSED THEATRES
IN ORDER TO FORCE SALES OF THEATRES IN VARIOUS TOWNS OR TO PREVENT
ENTRY BY AN INDEPENDENT OPERATOR.  SCHINE CUT ADMISSION PRICES.  SCHINE
OBTAINED FROM COMPETITORS WHOM IT BOUGHT OUT AGREEMENTS NOT TO COMPETE
FOR LONG TERMS OF YEARS WHICH AGREEMENTS AT TIMES EXTENDED TO OTHER
TOWNS AS WELL.  SCHINE OBTAINED FILM-RENTAL CONCESSIONS NOT MADE
AVAILABLE TO INDEPENDENTS.  THE DISTRICT COURT ENTERED A DECREE
ENJOINING THESE PRACTICES AND REQUIRING A DIVESTITURE BY SCHINE OF
VARIOUS OF ITS THEATRES.  63 F.SUPP.  229. 

FIRST.  FOR THE REASONS STATED IN UNITED STATES V. GRIFFITH, ANTE, P.
100, THE COMBINING OF THE OPEN AND CLOSED TOWNS FOR THE NEGOTIATION OF
FILMS FOR THE CIRCUIT WAS A RESTRAINT OF TRADE AND THE USE OF MONOPOLY
POWER IN VIOLATION OF SEC. 1 AND SEC. 2 OF THE ACT.  THE CONCERTED
ACTION OF THE PARENT COMPANY, ITS SUBSIDIARIES, AND THE NAMED OFFICERS
AND DIRECTORS IN THAT ENDEAVOR WAS A CONSPIRACY WHICH WAS NOT IMMUNIZED
BY REASON OF THE FACT THAT THE MEMBERS WERE CLOSELY AFFILIATED RATHER
THAN INDEPENDENT.  SEE UNITED STATES V. YELLOW CAB CO., 332 U.S. 218,
227; UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173.  THE
NEGOTIATIONS WHICH SCHINE HAD WITH THE DISTRIBUTORS RESULTED IN THE
EXECUTION OF MASTER AGREEMENTS BETWEEN THE DISTRIBUTORS AND
EXHIBITORS.  THIS BROUGHT THE DISTRIBUTORS INTO UNLAWFUL COMBINATIONS
WITH THE SCHINE DEFENDANTS.  SEE UNITED STATES V. PARAMOUNT PICTURES,
INC., POST, P. 131.  THE COURSE OF BUSINESS MAKES PLAIN THAT THE
COMMERCE AFFECTED WAS INTERSTATE.  UNITED STATES V. CRESCENT AMUSEMENT
CO., SUPRA, PP. 180, 183-184. 

SECOND.  APPELLANTS OBJECT TO ADMISSION IN EVIDENCE OF NUMEROUS INTER
OFFICE COMMUNICATIONS BETWEEN OFFICIALS OF THE DISTRIBUTORS WITH WHOM
SCHINE DEALT.  THE DISTRICT COURT PLACED CONSIDERABLE RELIANCE ON THEM
IN MAKING ITS FINDINGS.  WE WILL ADVERT LATER TO THE USE OF THESE
DOCUMENTS TO PROVE THE UNREASONABLENESS OF CLEARANCES.  IT IS
SUFFICIENT AT THIS POINT TO SAY THAT SINCE A CONSPIRACY BETWEEN SCHINE
AND EACH OF THE NAMED DISTRIBUTORS WAS ESTABLISHED BY INDEPENDENT
EVIDENCE, THESE INTER-OFFICE LETTERS AND MEMORANDA WERE ADMISSIBLE
AGAINST ALL CONSPIRATORS AS DECLARATIONS OF SOME OF THE ASSOCIATES SO
FAR AS THEY WERE IN FURTHERANCE OF THE UNLAWFUL PROJECT.  HITCHMAN COAL
& COKE CO. V. MITCHELL, 245 U.S. 229, 249; UNITED STATES V. CRESCENT
AMUSEMENT CO., SUPRA, P. 184; UNITED STATES V. GYPSUM CO., 333 U.S.
364, 393. 

THIRD.  APPELLANTS MAKE DETAILED CHALLENGES TO MANY OF THE OTHER
FINDINGS OF THE DISTRICT COURT ON WHICH IT BASED ITS HOLDINGS THAT
APPELLANTS VIOLATED THE ACT. 

(1)  THEY VIGOROUSLY ATTACK THE FINDINGS THAT SCHINE ARBITRARILY
DEPRIVED INDEPENDENTS OF FIRST- AND SECOND-RUN PICTURES.  THEIR CHIEF
CONTENTION IS THAT THERE IS NO SUPPORT FOR THE FINDING OF ARBITRARY
ACTION ON THE PART OF SCHINE, THAT SCHINE DID NOT BUY PICTURES BEYOND
ITS NEEDS IN ORDER TO KEEP THEM AWAY FROM ITS COMPETITORS, THAT ANY
SUCCESSFUL PURCHASER OF A FIRST- OR SECOND-RUN PICTURE HAS AN EXCLUSIVE
PRIVILEGE THAT NECESSARILY DEPRIVES COMPETITORS OF THE FILM FOR THE
PERIOD OF THE RUN, AND THAT ANY ADVANTAGE WHICH SCHINE OBTAINED IN THIS
REGARD WAS THE RESULT OF THE OPERATION OF FORCES OF COMPETITION. 

AS WE READ THE EVIDENCE UNDERLYING THIS FINDING, IT WAS THE USE OF
SCHINE'S MONOPOLY POWER - REPRESENTED BY COMBINING THE BUYING POWER OF
THE OPEN AND CLOSED TOWNS - WHICH ENABLED IT TO OBTAIN THAT WHICH ITS
COMPETITORS COULD NOT OBTAIN.  DEPRIVATION OF COMPETITORS OF FIRST- AND
SECOND-RUN PICTURES IN THAT WAY WAS INDEED ARBITRARY IN THE SENSE THAT
IT WAS THE PRODUCT OF MONOPOLY POWER, NOT OF COMPETITIVE FORCES.  THAT
IS THE CONSTRUCTION WE GIVE THE FINDING OF THE DISTRICT COURT; AND AS
SO CONSTRUED IT IS SUPPORTED BY SUBSTANTIAL EVIDENCE.  THERE MAY BE
EXCEPTIONS IN THE CASE OF SOME SUBSIDIARY FINDINGS.  BUT WE DO NOT STOP
TO RELATE THEM.  FOR EVEN IF WE LAY THEM ASIDE AS CLEARLY ERRONEOUS FOR
LACK OF SUPPORT IN THE EVIDENCE, THE CONCLUSION IS IRRESISTIBLE THAT
SCHINE SO USED ITS MONOPOLY POWER TO GAIN ADVANTAGES AND PREFERENCES
WHICH, ON A PURELY COMPETITIVE BASIS, IT COULD NOT HAVE ACHIEVED. 

(2)  DEFENSE OF THE LONG-TERM FILM-RENTAL AGREEMENTS - THE FRANCHISES
- IS MADE ON THE GROUND THAT THEY WERE ACCEPTED METHODS OF DOING
BUSINESS IN THE INDUSTRY,  FN8  THAT THEY WERE FAVORED BY DISTRIBUTORS
AS DEVICES TO STABILIZE THEIR END OF THE BUSINESS AND TO SAVE EXPENSE,
AND THAT THEY WERE NOT CHOSEN BY SCHINE AS INSTRUMENTS TO SUPPRESS
COMPETITION.  BUT IT SEEMS TO US APPARENT THAT THEIR USE SERVED TO
INTENSIFY THE IMPACT OF SCHINE'S MONOPOLY POWER ON ITS COMPETITORS. 
FOR WHEN SCHINE'S BUYING POWER WAS USED TO ACQUIRE FILMS PRODUCED BY A
DISTRIBUTOR FOR TWO OR THREE YEARS RATHER THAN FOR ONE YEAR ALONE, IT
PLAINLY STRENGTHENED THROUGH THE EXERCISE OF MONOPOLY POWER SUCH
DOMINANT POSITION AS SCHINE HAD OVER EACH OF ITS COMPETITORS. 

APPELLANTS ALSO CHALLENGE THE FINDING THAT SCHINE OBTAINED
PREFERENCES THROUGH THE FRANCHISES, IN ADDITION TO LONG-TERM SUPPLIES
OF PICTURES, WHICH WERE NOT GRANTED INDEPENDENT OPERATORS.  ONE OF
THESE PREFERENCES WAS FOUND TO BE THE UNFAIR AND INEQUITABLE CLEARANCE
PROVISIONS; ANOTHER, SPECIAL FILM-RENTAL CONCESSIONS.  WE WILL CONSIDER
THESE LATER.  THE OTHER ASPECTS OF THE FINDINGS WE DO NOT STOP TO
ANALYZE.  FOR THE FRANCHISE AGREEMENTS AS EMPLOYED BY SCHINE ARE
UNREASONABLE RESTRAINTS OF TRADE FOR THE REASONS STATED; AND THEY MUST
BE PERMANENTLY ENJOINED, EVEN THOUGH WE ASSUME THEIR COLLATERAL ASPECTS
ARE NOT ACCURATELY DESCRIBED BY THE DISTRICT COURT AND SO MAY NOT BE
CONDEMNED. 

(3)  APPELLANTS CHALLENGE THE FINDING THAT SCHINE MADE THREATS TO
BUILD THEATRES OR TO OPEN CLOSED ONES IN ORDER TO FORCE SALES OF
THEATRES IN VARIOUS TOWNS OR TO PREVENT ENTRY BY AN INDEPENDENT
OPERATOR.  THERE ARE INACCURACIES IN SOME OF THE SUBSIDIARY FINDINGS. 
THERE ARE EPISODES WHICH ARE SUSCEPTIBLE OF TWO INTERPRETATIONS, ONE
WHOLLY INNOCENT AND THE OTHER UNLAWFUL.  THERE ARE STILL OTHER EPISODES
WHICH HAVE THE UNMISTAKABLE EARMARKS OF THE USE OF MONOPOLY POWER WITH
INTENT TO EXPAND AN EMPIRE AND TO RESTRAIN COMPETITION.  ON THE WHOLE
WE THINK THE DISTRICT COURT WAS JUSTIFIED IN DRAWING THE INFERENCE OF
UNLAWFUL PURPOSE FROM THE AMBIGUOUS EPISODES AND THAT THOSE COUPLED
WITH THE OTHERS ARE ADEQUATE TO SUPPORT THESE FINDINGS OF THE DISTRICT
COURT. 

(4)  WE REACH THE SAME RESULT AS RESPECTS THE AGREEMENTS NOT TO
COMPETE WHICH SCHINE EXACTED FROM COMPETITORS WHOM IT BOUGHT OUT.  IT
IS NOT ENOUGH THAT THE AGREEMENTS MAY BE VALID UNDER LOCAL LAW.  EVEN
AN OTHERWISE LAWFUL DEVICE MAY BE USED AS A WEAPON IN RESTRAINT OF
TRADE OR IN AN EFFORT TO MONOPOLIZE A PART OF TRADE OR COMMERCE. 
AGREEMENTS NOT TO COMPETE HAVE AT TIMES BEEN USED FOR THAT UNLAWFUL
PURPOSE.  SEE UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 174;
UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA, P. 181.  IF WE HAD HERE
ONLY AGREEMENTS NOT TO COMPETE, THE INFERENCES DRAWN BY THE DISTRICT
COURT MIGHT NOT BE WARRANTED.  BUT IN THE SETTING OF THIS RECORD, AND
AGAINST THE BACKGROUND OF SCHINE'S OTHER MONOPOLISTIC PRACTICES, IT
SEEMS TO US THAT THE DISTRICT COURT MIGHT INFER THAT THE REQUISITE
PURPOSE WAS PRESENT AND THAT THESE AGREEMENTS WERE ADDITIONAL WEAPONS
IN SCHINE'S ARSENAL OF POWER THROUGH THE USE OF WHICH ITS MONOPOLY WAS
SOUGHT TO BE EXTENDED. 

(5)  THE FINDING THAT SCHINE OBTAINED FILM-RENTAL CONCESSIONS NOT
MADE AVAILABLE TO INDEPENDENT OPERATORS IS NOT INTELLIGIBLE TO US.  FOR
THE DISTRICT COURT WENT ON TO STATE THAT "THESE PROVISIONS WERE ALSO IN
CONTRACTS WITH INDEPENDENTS."  HOW THOSE CONCESSIONS CONSTITUTE A
RESTRAINT OF TRADE IS THEREFORE NOT APPARENT.  WE SET ASIDE THIS
FINDING SO THAT IT MAY BE CLARIFIED ON REMAND OF THE CAUSE. 

(6)  THERE IS CHALLENGE TO THE FINDINGS THAT SCHINE'S RENTAL
AGREEMENTS CONTAINED MINIMUM ADMISSION PRICES, OR MINIMUM ADMISSION
PRICES LOWER THAN THOSE TO BE CHARGED BY THE INDEPENDENT OPERATORS FOR
SUBSEQUENT RUNS, OR RELIEVED SCHINE OF REQUIREMENTS FOR MINIMUM
ADMISSION PRICES THOUGH IMPOSING THEM ON ITS COMPETITORS.  THERE IS
EVIDENCE TO SUPPORT THE FINDINGS THAT MINIMUM PRICES WERE FIXED.  IT IS
WELL SETTLED THAT THE FIXING OF MINIMUM PRICES, LIKE OTHER TYPES OF
PRICE FIXING, IS UNLAWFUL PER SE.  UNITED STATES V. SOCONY-VACUUM OIL
CO., 310 U.S. 150.  THE FINDINGS THAT SCHINE WAS EITHER GRANTED MINIMUM
ADMISSION PRICES MORE FAVORABLE THAN THOSE REQUIRED OF ITS COMPETITORS,
OR THAT SCHINE, UNLIKE ITS COMPETITORS, WAS RELIEVED OF ALL
REQUIREMENTS FOR MINIMUM PRICES, ARE ALSO SUPPORTED BY EVIDENCE.  IT IS
SAID THAT THESE PROVISIONS OF THE AGREEMENTS WERE NOT ADHERED TO.  BUT
SINCE THEY DID EXIST, IT IS NOT FOR US TO SPECULATE AS TO WHAT FORCE OR
SANCTION THEY MAY HAVE HAD.    (7)  THERE IS ALSO CHALLENGE TO THE
FINDING THAT SCHINE CUT ADMISSION PRICES.  THIS SEEMS UNCONTROVERTED. 
BUT PRICE CUTTING WITHOUT MORE IS NOT A VIOLATION OF THE SHERMAN ACT. 
IT IS INDEED A COMPETITIVE PRACTICE WHICH THIS RECORD SHOWS TO HAVE
BEEN COMMON IN THE INDUSTRY.  IT MAY BE USED IN VIOLATION OF THE ACT. 
THUS IT MAY BE THE INSTRUMENT OF MONOPOLY POWER TO ELIMINATE
COMPETITORS OR TO BRING THEM TO THEIR KNEES.  BUT SINCE IT IS NOT
UNLAWFUL PER SE, FACTS AND CIRCUMSTANCES MUST BE ADDUCED TO SHOW THAT
IT WAS IN PURPOSE OR EFFECT EMPLOYED AS AN INSTRUMENT OF MONOPOLY
POWER.  HERE THERE IS NOTHING EXCEPT A BARE FINDING THAT AT TIMES
SCHINE CUT ADMISSION PRICES.  THAT FINDING IS NOT SUFFICIENTLY
DISCRIMINATING TO WITHSTAND ANALYSIS AND IS NOT ADEQUATE TO SUPPORT AN
INJUNCTION AGAINST PRICE CUTTING. 

(8)  THE FINDING AS TO UNREASONABLE CLEARANCES PRESENTS RATHER LARGE
ISSUES.  WE HAVE ELABORATED THE POINT IN UNITED STATES V. PARAMOUNT
PICTURES, INC., POST, P. 131, AND NEED NOT REPEAT WHAT IS SAID THERE. 
CLEARANCE IS AN AGREEMENT BY A DISTRIBUTOR NOT TO EXHIBIT A FILM NOR TO
LICENSE OTHERS TO DO SO WITHIN A GIVEN AREA AND FOR A STATED PERIOD
AFTER THE LAST DATE OF THE SHOWING OF THE FILM BY THE LICENSEE WITH
WHOM THE AGREEMENT IS MADE.  FN9  IT IS, IN OTHER WORDS, AN AGREEMENT
BY A DISTRIBUTOR TO LICENSE FILMS ONLY FOR SPECIFIED SUCCESSIVE DATES. 
IT IS IN PART DESIGNED TO PROTECT THE VALUE OF THE LICENSE WHICH IS
GRANTED.  WHILE IT THUS PROTECTS THE INCOME OF THE FIRST EXHIBITOR,
THERE IS NO CONTENTION THAT CLEARANCE AGREEMENTS ARE PER SE UNLAWFUL
RESTRAINTS ON COMPETITION BY REASON OF THE EFFECT THEY MAY HAVE ON
ADMISSION PRICES OR OTHERWISE.  ALL THE DISTRICT COURT PURPORTED TO
CONDEMN, AND ALL THE APPELLEE MAINTAINS IS UNLAWFUL, ARE "UNREASONABLE
CLEARANCES."  IF REASONABLENESS IS THE TEST, THE FACTORS WHICH BEAR ON
IT WOULD APPEAR TO BE NUMEROUS.  FN10  THE FINDINGS AND OPINION OF THE
DISTRICT COURT, HOWEVER, DO NOT GREATLY ILLUMINATE THE PROBLEM.  WHAT
STANDARDS OR CRITERIA OF UNREASONABLENESS WERE APPLIED DOES NOT CLEARLY
APPEAR.  THERE ARE, HOWEVER, IN SOME OF THE SUBSIDIARY FINDINGS IN THIS
CASE A FEW CLUES AS TO THE BASIS USED BY THE DISTRICT COURT IN
CLASSIFYING CLEARANCES AS UNREASONABLE.  THUS IT SAID THAT SCHINE GOT
SOME CLEARANCES "OVER TOWNS IN WHICH SCHINE DID NOT OPERATE."  BUT THAT
IS IRRELEVANT TO THE PROBLEM OF REASONABLENESS OF CLEARANCES, SINCE BY
DEFINITION CLEARANCES RUN TO BOTH THEATRES AND TOWNS NOT OWNED BY HIM
WHO HAS THE CLEARANCE. 

THE DISTRICT COURT ALSO FOUND THAT CLEARANCES "WERE GIVEN OVER TOWNS
OVER WHICH THERE HAD BEEN NO PREVIOUS CLEARANCE."  BUT THAT WITHOUT
MORE WOULD NOT MAKE A CLEARANCE "UNREASONABLE."  THE DISTRICT COURT
FOUND THAT SCHINE GOT CLEARANCES OVER "SOME TOWNS DISTANT FROM 10 TO
UPWARDS OF 20 MILES" AND THAT CLEARANCES WERE ALSO OBTAINED OVER
"OUTSIDE TOWNS OF COMPARABLY SMALL POPULATION, DISTANT SO FAR THAT NO
CLEARANCE IS JUSTIFIED."  IF THE BASIS FOR THESE FINDINGS IS THAT THE
TOWNS WERE IN DIFFERENT COMPETITIVE AREAS, IT WOULD COME CLOSEST TO
REVEALING THE STANDARD USED BY THE DISTRICT COURT IN DETERMINING
WHETHER THE CLEARANCES WERE OR WERE NOT REASONABLE, UNLESS POSSIBLY IT
BE THE FINDING THAT IN A FEW INSTANCES SCHINE GOT CLEARANCES OVER TOWNS
WHERE THERE WERE NO THEATRES. 

THE DISTRICT COURT CITES INSTANCES OF CLEARANCES WHICH IN ITS VIEW
WERE ILLEGAL BECAUSE UNREASONABLE AS TO TIME.  BUT SOME OF THESE TURN
OUT TO BE SITUATIONS WHERE CLEARANCES WERE GRANTED OVER TOWNS WHERE
SCHINE HAD THE ONLY THEATRE IN TOWN.  SO PERHAPS THE DISTRICT COURT
USED AS A BASIS FOR SOME OF ITS FINDINGS OF UNREASONABLE CLEARANCES THE
ABSENCE OF ANY COMPETITION BETWEEN THE THEATRES IN QUESTION.  BUT AS TO
THAT WE CAN ONLY GUESS IN EACH CASE AND THEN WONDER WHETHER OUR GUESS
WAS CORRECT, BECAUSE APPELLEE SUGGESTS THAT ONE VICE OF SCHINE'S
CLEARANCES WAS THAT THEY RAN NOT TO SPECIFIED THEATRES BUT TO SPECIFIED
TOWNS.  WE ARE, HOWEVER, LEFT SOMEWHAT IN THE DARK WHETHER THE DISTRICT
COURT FOLLOWED THAT THEORY OR MADE THE REASONABLENESS OF CLEARANCES
TURN ON WHETHER OR NOT THE THEATRES AFFECTED WERE IN DIFFERENT
COMPETITIVE AREAS. 

APPELLEE ALSO SUGGESTS THAT PROOF OF THE UNREASONABLENESS OF SCHINE'S
CLEARANCES IS THAT THEIR PERIODS WERE ALMOST UNIFORMLY THE SAME EVEN
THOUGH THERE WERE WIDE VARIATIONS IN THE CONDITION AND SIZE OF THEATRES
AND OF THE TYPE OF PICTURES PLAYED IN THE VARIOUS THEATRES.  BUT WE ARE
GIVEN NO CLUE IN THE FINDINGS WHETHER THAT WAS THE VIEW OF THE DISTRICT
COURT.  ON ITS FACE IT SEEMS MORE LIKE AN ATTEMPT OF THE APPELLEE TO
SHOW WHAT FINDINGS COULD HAVE BEEN MADE ON THE BASIS OF THE RECORD HAD
SOME DISCRIMINATION BEEN MADE IN APPRAISING THE EVIDENCE. 

APPELLEE SEEMS TO ARGUE THAT STANDARDS OF REASONABLENESS CAN BE
DISPENSED WITH BY REASON OF STATEMENTS IN THE INTER-OFFICE MEMORANDA OF
THE DISTRIBUTORS THAT MANY OF SCHINE'S CLEARANCES WERE "UNREASONABLE." 
ON THE MATTER OF CLEARANCES, HOWEVER, THE INTERESTS OF DISTRIBUTORS AND
EXHIBITORS ARE NOT NECESSARILY IDENTICAL.  FOR THE SELF-INTEREST OF
EXHIBITORS WHICH WOULD CALL FOR LONG CLEARANCES WOULD MILITATE AGAINST
THE BEST INTERESTS OF DISTRIBUTORS.  FN11  SO IT IS NOT CLEAR THAT
THESE DECLARATIONS CAN PROPERLY BE SAID TO FALL WITHIN THE SCOPE OF THE
UNLAWFUL PROJECT WHICH THE TWO GROUPS WERE SPONSORING.  CF. PINKERTON
V. UNITED STATES, 328 U.S. 640, 647-648.  BUT HOWEVER THAT MAY BE,
THESE STATEMENTS DO NOT ADVANCE US VERY FAR WITH THE PROBLEM BECAUSE
THEY TOO FAIL TO GIVE SPECIFIC CONTENT TO THE CONCEPT OF UNREASONABLE
AS APPLIED TO CLEARANCES. 

AS A LAST RESORT APPELLEE SEEKS TO SUSTAIN THESE FINDINGS ON THE
GROUND THAT SCHINE GOT AT LEAST SOME OF ITS CLEARANCES BY REFUSING TO
MAKE ANY DEAL FOR THE CIRCUIT UNLESS ITS TERMS WERE MET.  BUT ANY
CLEARANCE SO OBTAINED, THOUGH OTHERWISE REASONABLE, WOULD BE UNLAWFUL,
FOR IT WOULD BE THE PRODUCT OF THE EXERCISE OF MONOPOLY POWER.  IT IS
EVIDENT, HOWEVER, THAT THAT WAS NOT THE THEORY ADOPTED BY THE DISTRICT
COURT FOR IT DID NOT LOOK TO SEE WHAT CLEARANCES HAD BEEN OBTAINED IN
THAT MANNER. 

THE SHORT OF THE MATTER IS THAT SINCE WE DO NOT KNOW FOR CERTAIN WHAT
THE FINDINGS OF THE DISTRICT COURT ON CLEARANCES MEAN, THEY MUST BE SET
ASIDE.  IN DOING SO WE OF COURSE DO NOT INTIMATE HERE, ANY MORE THAN WE
DO IN CASE OF THE OTHER FINDINGS WE HAVE SET ASIDE IN THE CASE, THAT
THE RECORD WOULD NOT SUSTAIN FINDINGS ADVERSE TO SCHINE.  WE ONLY HOLD
THAT BEFORE WE CAN PASS ON THE QUESTIONS TENDERED, FINDINGS ON
CLEARANCES MUST BE MADE WHICH REFLECT AN APPRAISAL OF THE COMPLEX OF
FACTORS BEARING ON THIS QUESTION OF REASONABLENESS.  THAT IS A FUNCTION
OF THE DISTRICT COURT. 

FOURTH.  THE DECREE ENTERED BY THE DISTRICT COURT ENJOINS APPELLANTS
FROM SPECIFIED ACTS OR PRACTICES.  FN12  TO THE EXTENT THAT THESE
PROVISIONS ARE DIRECTED TO PRACTICES REFLECTED IN FINDINGS WHICH WE SET
ASIDE, THEY MUST BE RE-EXAMINED BY THE DISTRICT COURT ON REMAND OF THE
CASE. 

APPELLANTS OBJECT TO THE GENERALITY OF THE INJUNCTION AGAINST
"MONOPOLIZING" FIRST- AND SECOND-RUN FILMS.  FN13  THE STATUTORY
REQUIREMENT IS THAT THESE INJUNCTIONS "SHALL BE SPECIFIC IN TERMS, AND
SHALL DESCRIBE IN REASONABLE DETAIL, AND NOT BY REFERENCE TO THE BILL
OF COMPLAINT OR OTHER DOCUMENT, THE ACT OR ACTS SOUGHT TO BE
RESTRAINED."  38 STAT. 738, 28 U.S.C. SEC. 383.  AND SEE FED. R. CIV.
P., 65(D).  WE NEED NOT DETERMINE WHETHER THE PROVISION IN QUESTION IF
READ, AS IT MUST BE, IN LIGHT OF THE OTHER PARAGRAPHS OF THE DECREE
(SWIFT & CO. V. UNITED STATES, 276 U.S. 311, 328) WOULD PASS MUSTER. 
FOR WE THINK THE PUBLIC INTEREST REQUIRES THAT A MORE SPECIFIC DECREE
BE ENTERED ON THIS PHASE OF THE CASE.  THE PRECISE PRACTICES FOUND TO
HAVE VIOLATED THE ACT SHOULD BE SPECIFICALLY ENJOINED. 

WE HAVE CONSIDERED THE OBJECTIONS TO THE OTHER PARTS OF THE
INJUNCTION (APART FROM PROVISIONS AS TO DIVESTITURE WHICH WE DISCUSS
LATER) AND FIND THEM WITHOUT MERIT. 

FIFTH.  THE DISTRICT COURT INCLUDED IN ITS DECREE A DIVESTITURE
PROVISION ADJUDGING THAT APPELLANT COMPANIES BE "DISSOLVED, REALIGNED,
OR REORGANIZED IN THEIR OWNERSHIP AND CONTROL SO THAT FAIR COMPETITION
BETWEEN THEM AND OTHER THEATRES MAY BE RESTORED AND THEREAFTER
MAINTAINED."  THE PARTIES SUBSEQUENTLY SUBMITTED VARIOUS PLANS AND
AFTER HEARINGS THE ONE SUBMITTED BY THE DEPARTMENT OF JUSTICE WAS
APPROVED WITH MODIFICATIONS.  THE PLAN DOES NOT PROVIDE FOR THE
DISSOLUTION OF THE SCHINE CIRCUIT THROUGH THE SEPARATION OF THE SEVERAL
AFFILIATED CORPORATIONS AS WAS DONE IN UNITED STATES V. CRESCENT
AMUSEMENT CO., SUPRA, PP. 188-189.  IT KEEPS THE CIRCUIT INTACT IN THAT
SENSE BUT REQUIRES SCHINE TO SELL CERTAIN THEATRES.  THE PLAN REQUIRES
SCHINE TO SELL ITS INTEREST IN ALL BUT ONE THEATRE OF ITS SELECTION IN
EACH OF 33 TOWNS, ALL BUT TWO IN EACH OF FOUR LARGER TOWNS, AND TWO OF
FOUR THEATRES IN ROCHESTER, NEW YORK.  FN14  SCHINE IS TO BE DIVESTED
OF MORE THAN 50 OF ITS THEATRES.  THE TOWNS AFFECTED ARE OVER 40 OUT OF
THE 70-ODD IN WHICH SCHINE IS OPERATING.  FN15  THE ONE-THEATRE TOWNS
OF SCHINE ARE UNAFFECTED. 

THE DECREE ALSO DISSOLVES THE POOLING AGREEMENTS.  A TRUSTEE IS
APPOINTED TO MAKE THE SALES WHICH ARE ORDERED.  SCHINE IS PROHIBITED
FROM ACQUIRING ANY FINANCIAL INTEREST IN ADDITIONAL THEATRES "EXCEPT
AFTER AN AFFIRMATIVE SHOWING THAT SUCH ACQUISITION WILL NOT
UNREASONABLY RESTRAIN COMPETITION."  SCHINE IS ORDERED NOT TO BUY OR
BOOK FILMS FOR ANY THEATRE OTHER THAN THOSE IN WHICH IT OWNS A
FINANCIAL INTEREST.  THE DISTRICT COURT CONCLUDED THAT THIS PROGRAM OF
DIVESTITURE WAS NECESSARY IN ORDER TO RESTORE "FREE ENTERPRISE AND OPEN
COMPETITION AMONGST ALL BRANCHES OF THE MOTION PICTURE INDUSTRY." 

AS WE HAVE NOTED, THE DISTRICT COURT DID NOT FOLLOW THE PROCEDURE OF
UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA, AND ORDER THE
DISSOLUTION OF THE COMBINATION OF THE AFFILIATED CORPORATIONS.  SCHINE
PRESENTED SUCH A PLAN AND IT WAS REJECTED.  THAT PLAN CONTEMPLATED THE
DIVISION OF THE SCHINE THEATRES AMONG THREE SEPARATE CORPORATIONS, WITH
MEMBERS OF THE SCHINE FAMILY OWNING EACH CORPORATION.  THE DISTRICT
COURT REJECTED THAT PLAN BECAUSE IT DID NOT FURNISH SUCH SEPARATION OF
OWNERSHIP AS WOULD ASSURE DISCONTINUANCE OF THE PRACTICES WHICH HAD
CONSTITUTED VIOLATIONS OF THE ACT.  THE DISTRICT COURT DID NOT PURSUE
FURTHER THE PROSPECT OF DISMEMBERMENT OF THE SCHINE CIRCUIT THROUGH
SEPARATION OF THE THEATRES INTO GEOGRAPHICAL GROUPINGS UNDER SEPARATE
AND UNAFFILIATED OWNERSHIPS.  NOR DO THE FINDINGS REFLECT AN INQUIRY TO
DETERMINE WHAT THEATRES HAD BEEN ACQUIRED BY SCHINE THROUGH METHODS
WHICH VIOLATE THE ACT.  SO FAR AS THE FINDINGS REVEAL, THE THEATRES
WHICH ARE ORDERED DIVESTED MAY BE PROPERTIES WHICH IN WHOLE OR IN PART
WERE LAWFULLY ACQUIRED; AND THEATRES WHICH SCHINE IS PERMITTED TO
RETAIN MAY, SO FAR AS THE FINDINGS REVEAL, BE ONES WHICH IT OBTAINED AS
THE RESULT OF TACTICS VIOLATING THE ACT. 

IN THIS TYPE OF CASE WE START FROM THE PREMISE THAT AN INJUNCTION
AGAINST FUTURE VIOLATIONS IS NOT ADEQUATE TO PROTECT THE PUBLIC
INTEREST.  IF ALL THAT WAS DONE WAS TO FORBID A REPETITION OF THE
ILLEGAL CONDUCT, THOSE WHO HAD UNLAWFULLY BUILT THEIR EMPIRES COULD
PRESERVE THEM INTACT.  THEY COULD RETAIN THE FULL DIVIDENDS OF THEIR
MONOPOLISTIC PRACTICES AND PROFIT FROM THE UNLAWFUL RESTRAINTS OF TRADE
WHICH THEY HAD INFLICTED ON COMPETITORS.  SUCH A COURSE WOULD MAKE
ENFORCEMENT OF THE ACT A FUTILE THING UNLESS PERCHANCE THE UNITED
STATES MOVED IN AT THE INCIPIENT STAGES OF THE UNLAWFUL PROJECT.  FOR
THESE REASONS DIVESTITURE OR DISSOLUTION IS AN ESSENTIAL FEATURE OF
THESE DECREES.  SEE UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA, P.
189, AND CASES CITED. 

TO REQUIRE DIVESTITURE OF THEATRES UNLAWFULLY ACQUIRED IS NOT TO ADD
TO THE PENALTIES THAT CONGRESS HAS PROVIDED IN THE ANTITRUST LAWS. 
LIKE RESTITUTION IT MERELY DEPRIVES A DEFENDANT OF THE GAINS FROM HIS
WRONGFUL CONDUCT.  IT IS AN EQUITABLE REMEDY DESIGNED IN THE PUBLIC
INTEREST TO UNDO WHAT COULD HAVE BEEN PREVENTED HAD THE DEFENDANTS NOT
OUTDISTANCED THE GOVERNMENT IN THEIR UNLAWFUL PROJECT.  NOR IS UNITED
STATES V. NATIONAL LEAD CO., 332 U.S. 319, 351-353, OPPOSED TO THIS
VIEW.  FOR IN THAT CASE THERE WAS NO SHOWING THAT THE PLANTS SOUGHT TO
BE DIVESTED WERE EITHER UNLAWFULLY ACQUIRED OR USED IN A MANNER
VIOLATIVE OF THE ANTITRUST LAWS. 

DIVESTITURE OR DISSOLUTION MUST TAKE ACCOUNT OF THE PRESENT AND
FUTURE CONDITIONS IN THE PARTICULAR INDUSTRY AS WELL AS PAST
VIOLATIONS.  IT SERVES SEVERAL FUNCTIONS:  (1)  IT PUTS AN END TO THE
COMBINATION OR CONSPIRACY WHEN THAT IS ITSELF THE VIOLATION.  (2)  IT
DEPRIVES THE ANTITRUST DEFENDANTS OF THE BENEFITS OF THEIR CONSPIRACY. 
(3)  IT IS DESIGNED TO BREAK UP OR RENDER IMPOTENT THE MONOPOLY POWER
WHICH VIOLATES THE ACT.  SEE UNITED STATES V. CRESCENT AMUSEMENT CO.,
SUPRA, PP. 188-190; UNITED STATES V. GRIFFITH, ANTE, P. 100. 

THE LAST TWO PHASES OF THIS PROBLEM ARE THE ONES PRESENTED IN THIS
CASE.  BUT THE DISTRICT COURT PURPORTED TO DEAL WITH ONLY ONE OF THEM. 
IT DID NOT DETERMINE WHAT DIVIDENDS SCHINE HAD OBTAINED FROM THE
CONSPIRACY.  IN UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA, PP.
181, 189, SOME OF THE AFFILIATED CORPORATIONS THROUGH WHICH THAT EMPIRE
WAS BUILT WERE PRODUCTS OF THE CONSPIRACY.  HENCE THAT FACT WITHOUT
MORE JUSTIFIED THE DIRECTION IN THE DECREE TO UNSCRAMBLE THEM.  THERE
ARE NO FINDINGS WHICH WOULD WARRANT SUCH A COURSE IN THIS CASE.  BUT AN
EVEN MORE DIRECT METHOD OF CAUSING APPELLANTS TO SURRENDER THE GAINS
FROM THEIR CONSPIRACY IS TO REQUIRE THEM TO DISPOSE OF THEATRES
OBTAINED BY PRACTICES WHICH VIOLATE THE ANTITRUST ACTS.  WE DO NOT KNOW
WHAT FINDINGS ON THAT SCORE WOULD BE SUPPORTED BY THE RECORD, FOR THE
DISTRICT COURT DID NOT ADDRESS ITSELF TO THE PROBLEM.  THE UPSHOT OF
THE MATTER IS THAT THE FINDINGS DO NOT REVEAL WHAT THE REWARDS OF THE
CONSPIRACY WERE; AND CONSEQUENTLY THE COURT DID NOT CONSIDER WHAT WOULD
BE THE PREFERABLE WAY OF CAUSING APPELLANTS TO SURRENDER THEM.  THE
CASE MUST THEREFORE BE REMANDED SO THAT THE DISTRICT COURT MAY MAKE
APPROPRIATE FINDINGS ON THIS PHASE OF THE CASE.    WHILE SUCH AN
INQUIRY IS THE STARTING POINT FOR DETERMINING TO WHAT EXTENT
DIVESTITURE SHOULD BE ORDERED, THE MATTER DOES NOT END THERE.  FOR IT
MAY BE THAT EVEN AFTER APPELLANTS ARE DEPRIVED OF THE FRUITS OF THEIR
CONSPIRACY, THE SCHINE CIRCUIT MIGHT STILL CONSTITUTE A MONOPOLY POWER
OF THE KIND WHICH THE ACT CONDEMNS (SEE AMERICAN TOBACCO CO. V. UNITED
STATES, 328 U.S. 781, 809, 811), IN SPITE OF THE RESTRICTIVE PROVISIONS
OF THE DECREE.  MONOPOLY POWER IS NOT CONDEMNED BY THE ACT ONLY WHEN IT
WAS UNLAWFULLY OBTAINED.  THE MERE EXISTENCE OF THE POWER TO
MONOPOLIZE, TOGETHER WITH THE PURPOSE OR INTENT TO DO SO, CONSTITUTES
AN EVIL AT WHICH THE ACT IS AIMED.  UNITED STATES V. GRIFFITH, ANTE, P.
100; UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 432.  BUT
WHETHER THAT CONDITION WILL OBTAIN IN THIS CASE MUST AWAIT THE FINDINGS
ON THE OTHER PHASE OF THE CASE. 

WE ACCORDINGLY SET ASIDE THE DIVESTITURE PROVISIONS OF THE DECREE SO
THAT THE DISTRICT COURT CAN MAKE THE FINDINGS NECESSARY FOR AN
APPROPRIATE DECREE.  WE APPROVE THE DISSOLUTION OF THE POOLING
AGREEMENTS, THE PROHIBITION AGAINST BUYING OR BOOKING FILMS FOR
THEATRES IN WHICH SCHINE HAS NO FINANCIAL INTEREST, AND THE RESTRICTION
ON FUTURE ACQUISITIONS OF THEATRES.  SEE UNITED STATES V. CRESCENT
AMUSEMENT CO., SUPRA, PP. 185-187.  WE DO NOT REACH THE QUESTION OF THE
APPOINTMENT OF A TRUSTEE TO SELL THEATRES AS THAT MERELY IMPLEMENTS THE
DIVESTITURE PROVISIONS WHICH MUST BE RECONSIDERED BY THE DISTRICT
COURT. 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED IN PART AND REVERSED
IN PART AND THE CAUSE IS REMANDED TO IT FOR PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  SO ORDERED. 

FN1  THESE FIGURES DO NOT INCLUDE 18 WHICH WERE CLOSED AND HAD BEEN
OR WERE BEING CONVERTED TO OTHER USES. 

FN2  NEW YORK (78), OHIO (36), KENTUCKY (18), MARYLAND (12), DELAWARE
(2), VIRGINIA (2). 

FN3  SCHINE HAD THE ONLY THEATRE IN EACH OF 21 TOWNS, BOTH THEATRES
IN 21 TOWNS THAT HAD TWO EACH, ALL THEATRES IN 16 TOWNS THAT HAD THREE
EACH, AND ALL THEATRES IN ONE TOWN THAT HAD SIX THEATRES AND IN ANOTHER
THAT HAD FOUR THEATRES. 

OF THESE THEATRES APPROXIMATELY 87 PER CENT ARE LOCATED IN CITIES OR
VILLAGES WITH POPULATIONS UNDER 25,000 AND 60 PER CENT IN CITIES OR
VILLAGES WITH POPULATIONS UNDER 10,000. 

FN4  FOX, LOEW, PARAMOUNT, RKO, WARNER, COLUMBIA, UNIVERSAL, AND
UNITED ARTISTS. 

FN5  IN THE 1939-1940 SEASON SCHINE PAID $1,647,000 TO SIX
DISTRIBUTORS IN FILM RENTAL. 

FN6  BY CLEARANCE IS MEANT THE PERIOD OF TIME AGREED UPON WHICH MUST
ELAPSE BETWEEN RUNS OF THE SAME FEATURE WITHIN A PARTICULAR AREA OR IN
SPECIFIED THEATRES. 

FN7  THE DISTRICT COURT USED "INDEPENDENTS" OR "INDEPENDENT
OPERATORS" TO MEAN COMPETITORS OTHER THAN THE EXHIBITOR-DISTRIBUTORS. 
SCHINE, OF COURSE, IS AN INDEPENDENT CIRCUIT, AS THAT TERM IS USED IN
THE INDUSTRY. 

FN8  A CONSENT ORDER WAS ENTERED IN THE PRESENT CASE ON MAY 19, 1942,
WHICH PROVIDED, INTER ALIA, THAT APPELLANTS WOULD NOT ENTER INTO ANY
AGREEMENT LICENSING FILMS RELEASED BY ANY DISTRIBUTOR DURING A PERIOD
OF MORE THAN ONE YEAR AND THAT ALL AGREEMENTS IN EXISTENCE HAVING A
LONGER TERM SHOULD BE VOID AS TO ALL FILMS RELEASED AFTER THE THIRTIETH
DAY FOLLOWING THE DATE OF THE CONSENT ORDER. 

FN9  SEE NOTE 6, SUPRA. 

FN10  SEE BERTRAND, EVANS & BLANCHARD, THE MOTION PICTURE INDUSTRY -
A PATTERN OF CONTROL 40-41(TNEC MONOGRAPH NO. 43, 1941): 

"THE ESTABLISHMENT OF CLEARANCE SCHEDULES IS AN INTRICATE PROCEDURE. 
IT INVOLVES A COMPLEX BARGAINING PROCESS AND THE BALANCE OF A VARIETY
OF OPPOSING ECONOMIC INTERESTS.  IT MAY BE STATED INITIALLY THAT THE
PRIMARY OBJECTIVE OF THE DISTRIBUTOR IS, OF COURSE, TO MAXIMIZE HIS
TOTAL REVENUE FROM EACH PICTURE.  THIS AIM GIVES HIM A VERY DIRECT
INTEREST IN CLEARANCE PERIODS.  THE HIGHER RENTAL FEES PAID BY THE
PRIOR-RUN EXHIBITOR ARE DIRECTLY CONDITIONED ON THE EXTENT OF THE
PROTECTION WHICH HE IS GRANTED, AND IN GENERAL THE LONGER THE CLEARANCE
PERIOD BEFORE SUBSEQUENT SHOWING, THE HIGHER THE RENTAL FEE THE PRIOR
RUN EXHIBITOR WILL PAY. 

"ON THE OTHER HAND, THE DISTRIBUTOR'S REVENUE FROM SUBSEQUENT-RUN
EXHIBITION IS ALSO IMPORTANT TO HIM; THIS INCOME MAY MEAN THE
DIFFERENCE BETWEEN BLACK OR RED INK ON HIS LEDGERS.  BUT THE LONGER THE
CLEARANCE PERIOD, THE SMALLER WILL BE THESE RETURNS - NOT ONLY BECAUSE
MORE CUSTOMERS WILL HAVE ATTENDED THE PRIOR SHOWING RATHER THAN WAIT
FOR SUBSEQUENT EXHIBITION, BUT ALSO BECAUSE THE EFFECTS OF THE
ADVERTISING AND EXPLOITATION EFFORTS MADE WHEN THE PICTURE WAS RELEASED
WILL HAVE BEEN VITIATED OVER THIS TIME.  IN GENERAL, THE GREATER THE
TOTAL BOX-OFFICE RETURN EARNED BY A FILM IN ALL SHOWINGS, THE GREATER
WILL BE THE DISTRIBUTOR'S REVENUE. 

.         .         .         .         . 

"THE RELATION BETWEEN RUN, CLEARANCE AND ZONING, ADMISSION PRICE,
SEATING CAPACITY, AND RENTAL FEES IS INDEED A COMPLEX ONE.  THE RANGE
COVERED BY THESE FACTORS IS INDICATED BY THIS FACT:  A LICENSE FEE
AMOUNTING TO MANY THOUSANDS OF DOLLARS MAY BE PAID FOR THE FIRST
SHOWING OF A FILM IN A LARGE METROPOLITAN THEATER, AND WITHIN A YEAR
THE SAME FILM MAY BE EXHIBITED IN SOME SMALL THEATER IN THE SAME CITY
FOR A FEE OF LESS THAN $20." 

FN11  SEE NOTE 10, SUPRA. 

FN12  THIS PART OF THE DECREE PROVIDES: 

"EACH OF THE DEFENDANTS IS HEREBY ENJOINED AND RESTRAINED: 

"1.  FROM MONOPOLIZING THE SUPPLY OF MAJOR FIRST RUN FILMS IN ANY
SITUATION WHERE THERE IS A COMPETING THEATRE SUITABLE FOR FIRST RUN
EXHIBITION THEREOF AND FROM MONOPOLIZING THE SUPPLY OF SECOND RUN FILM
IN ANY SITUATION WHERE THERE IS A SUITABLE THEATRE FOR SECOND RUN
EXHIBITION THEREOF. 

"2.  FROM DEMANDING OR RECEIVING CLEARANCE OVER THEATRES OPERATED BY
OTHERS WHICH UNREASONABLY RESTRICTS THEIR ABILITY TO COMPETE WITH A
THEATRE OWNED OR OPERATED BY A DEFENDANT CORPORATION CONTROLLED BY IT
AND FROM ATTEMPTING TO CONTROL THE ADMISSION PRICES CHARGED BY OTHERS
BY AGREEMENT WITH DISTRIBUTORS, DEMANDS MADE UPON DISTRIBUTORS, OR BY
ANY MEANS WHATSOEVER. 

"3.  FROM CONDITIONING THE LICENSING OF FILMS IN ANY COMPETITIVE
SITUATION OUTSIDE OF BUFFALO, NEW YORK, UPON THE LICENSING OF FILMS IN
ANY OTHER SITUATION AND FROM ENTERING INTO ANY FILM FRANCHISE. 

     .         .         .         .         . 

"5.  FROM ENFORCING ANY EXISTING AGREEMENTS HERETOFORE ENTERED INTO
(1) NOT TO COMPETE OR (2) TO RESTRICT THE USE OF ANY REAL ESTATE TO NON
THEATRICAL PURPOSES. 

"6.  FROM USING ANY THREATS OR DECEPTION AS A MEANS WHEREBY A
COMPETITOR IS INDUCED TO SELL. 

"7.  FROM CONTINUING ANY CONTRACT, CONSPIRACY OR COMBINATION WITH
EACH OTHER OR WITH ANY OTHER PERSON WHICH HAS THE PURPOSE OR EFFECT OF
MAINTAINING THE EXHIBITION OR THEATRE MONOPOLIES OF THE DEFENDANTS OR
OF PREVENTING ANY OTHER THEATRE OR EXHIBITOR FROM COMPETING WITH THE
DEFENDANTS OR ANY OF THEM, AND FROM ENTERING INTO ANY SIMILAR CONTRACT,
CONSPIRACY, OR COMBINATION FOR THE PURPOSE OR WITH THE EFFECT OF
RESTRAINING OR MONOPOLIZING TRADE AND COMMERCE BETWEEN THE STATES." 

FN13  SEE NOTE 12, SUPRA, PARAGRAPH 1. 

FN14  IT ALSO REQUIRES SCHINE TO SELL SPECIFIC THEATRES REMAINING
UNSOLD UNDER THE CONSENT DECREE OF MAY 19, 1942. 

FN15  SCHINE HAD WITHDRAWN FROM FIVE TOWNS PURSUANT TO THE CONSENT
ORDER OF MAY 19, 1942. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THE CASE. 
..END :













UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131 


ARGUED FEBRUARY 9-11, 1948.  - DECIDED MAY 3, 1948.  - 66 F.SUPP.  323 -
70 F.SUPP.  53, AFFIRMED IN PART AND REVERSED IN PART. 


THE UNITED STATES SUED TO RESTRAIN VIOLATIONS OF SECS. 1 AND 2 OF THE
SHERMAN ACT BY (1) FIVE CORPORATIONS WHICH PRODUCE MOTION PICTURES AND
THEIR RESPECTIVE SUBSIDIARIES OR AFFILIATES WHICH DISTRIBUTE AND
EXHIBIT FILMS AND OWN OR CONTROL THEATRES, (2) TWO CORPORATIONS WHICH
PRODUCE MOTION PICTURES AND THEIR SUBSIDIARIES WHICH DISTRIBUTE FILMS,
AND (3) ONE CORPORATION ENGAGED ONLY IN THE DISTRIBUTION OF MOTION
PICTURES.  THE COMPLAINT CHARGED THAT THE FIRST GROUP OF DEFENDANTS
CONSPIRED TO AND DID RESTRAIN AND MONOPOLIZE INTERSTATE TRADE IN THE
EXHIBITION OF MOTION PICTURES IN MOST OF THE LARGER CITIES OF THE
COUNTRY AND THAT THEIR COMBINATION OF PRODUCING, DISTRIBUTING AND
EXHIBITING MOTION PICTURES VIOLATED SECS. 1 AND 2 OF THE ACT.  IT ALSO
CHARGED THAT ALL OF THE DEFENDANTS, AS DISTRIBUTORS, CONSPIRED TO AND
DID RESTRAIN AND MONOPOLIZE INTERSTATE TRADE IN THE DISTRIBUTION AND
EXHIBITION OF FILMS.  AFTER A TRIAL, THE DISTRICT COURT GRANTED AN
INJUNCTION AND OTHER RELIEF.  HELD: 

1.  THE DISTRICT COURT'S FINDING THAT PRICE-FIXING CONSPIRACIES
EXISTED BETWEEN ALL DEFENDANTS AND BETWEEN EACH DISTRIBUTOR-DEFENDANT
AND ITS LICENSEES, WHICH RESULTED IN EXHIBITORS BEING REQUIRED TO
CHARGE SUBSTANTIALLY UNIFORM MINIMUM ADMISSION PRICES, IS SUSTAINED. 
PP. 141-142. 

2.  ITS INJUNCTION AGAINST DEFENDANTS OR THEIR AFFILIATES GRANTING
ANY LICENSE (EXCEPT TO THEIR OWN THEATRES) IN WHICH MINIMUM PRICES FOR
ADMISSION TO A THEATRE ARE FIXED, IS SUSTAINED.  PP. 142-144. 

(A)  THE FACT THAT DEFENDANTS OWNED COPYRIGHTS TO THEIR FILMS AND
MERELY LICENSED THEIR USE BY EXHIBITORS DID NOT ENTITLE THEM TO
CONSPIRE WITH EACH OTHER TO FIX UNIFORM PRICES OF ADMISSION TO BE
CHARGED BY EXHIBITORS.  P. 143. 

(B)  NOR DID IT JUSTIFY THE CONSPIRACY BETWEEN EACH DISTRIBUTOR
DEFENDANT AND ITS LICENSEES TO FIX AND MAINTAIN UNIFORM MINIMUM
ADMISSION PRICES WHICH HAD THE EFFECT OF SUPPRESSING PRICE COMPETITION
BETWEEN EXHIBITORS.  PP. 143-144. 

(C)  A COPYRIGHT MAY NO MORE BE USED THAN A PATENT TO DETER
COMPETITION BETWEEN RIVALS IN THE EXPLOITATION OF THEIR LICENSES.  P.
144. 

3.  THE DISTRICT COURT'S FINDING THAT THERE WAS A CONSPIRACY TO
RESTRAIN TRADE BY IMPOSING UNREASONABLE "CLEARANCES" IS SUSTAINED.  PP.
144-147. 

4.  ITS INJUNCTION AGAINST DEFENDANTS AND THEIR AFFILIATES AGREEING
WITH EACH OTHER OR WITH ANY EXHIBITORS OR DISTRIBUTORS TO MAINTAIN A
SYSTEM OF "CLEARANCES," OR GRANTING ANY "CLEARANCE" BETWEEN THEATRES
NOT IN SUBSTANTIAL COMPETITION, OR GRANTING OR ENFORCING ANY
"CLEARANCE" AGAINST THEATRES IN SUBSTANTIAL COMPETITION WITH THE
THEATRE RECEIVING THE LICENSE FOR EXHIBITION IN EXCESS OF WHAT IS
REASONABLY NECESSARY TO PROTECT THE LICENSEE, IS SUSTAINED.  PP. 147
148. 

(A)  A REQUEST THAT IT BE CONSTRUED OR MODIFIED SO AS TO ALLOW
LICENSORS IN GRANTING "CLEARANCES" TO TAKE INTO CONSIDERATION WHAT IS
REASONABLY NECESSARY FOR A FAIR RETURN TO THE LICENSOR IS REJECTED. 
PP. 147-148. 

(B)  IN THE SETTING OF THIS CASE, THE ONLY MEASURE OF REASONABLENESS
OF A CLEARANCE BY SHERMAN ACT STANDARDS IS THE SPECIAL NEEDS OF THE
LICENSEE FOR THE COMPETITIVE ADVANTAGES IT AFFORDS.  P. 148. 

5.  A PROVISION OF THE DECREE THAT, "WHENEVER ANY CLEARANCE PROVISION
IS ATTACKED AS NOT LEGAL ...  THE BURDEN SHALL BE UPON THE DISTRIBUTOR
TO SUSTAIN THE LEGALITY THEREOF," IS SUSTAINED.  P. 148. 

6.  THE DISTRICT COURT'S FINDING THAT THE EXHIBITOR-DEFENDANTS HAD
"POOLING AGREEMENTS" WHEREBY NORMALLY COMPETITIVE THEATRES WERE
OPERATED AS A UNIT, OR MANAGED BY A JOINT COMMITTEE OR BY ONE OF THE
EXHIBITORS, THE PROFITS BEING SHARED ACCORDING TO PREARRANGED
PERCENTAGES, AND THAT THESE AGREEMENTS RESULTED IN THE ELIMINATION OF
COMPETITION PRO TANTO BOTH IN EXHIBITION AND IN DISTRIBUTION OF FEATURE
PICTURES, IS SUSTAINED.  P. 149. 

7.  ITS REQUIREMENT THAT EXISTING "POOLING AGREEMENTS" BE DISSOLVED
AND ITS INJUNCTION AGAINST ANY FUTURE ARRANGEMENT OF THAT CHARACTER ARE
SUSTAINED.  P. 149. 

8.  ITS FINDINGS AS TO THE RESTRAINT OF TRADE BY MEANS OF
ARRANGEMENTS UNDER WHICH MANY THEATRES ARE OWNED JOINTLY BY TWO OR MORE
EXHIBITOR-DEFENDANTS, ITS REQUIREMENT THAT THE EXHIBITOR-DEFENDANTS
TERMINATE SUCH JOINT OWNERSHIP OF THEATRES, AND ITS INJUNCTION AGAINST
FUTURE ACQUISITIONS OF SUCH INTERESTS, ARE SUSTAINED.  PP. 149-151. 

9.  ITS ORDER THAT CERTAIN OTHER RELATIONSHIPS INVOLVING JOINT
OWNERSHIP OF THEATRES BY AN EXHIBITOR-DEFENDANT AND AN INDEPENDENT BE
DISSOLVED AND ITS INJUNCTION AGAINST FUTURE ACQUISITIONS OF SUCH JOINT
INTERESTS MUST BE REVISED AFTER FURTHER INQUIRIES AND FINDINGS UPON
REMAND OF THE CASES.  PP. 151-153. 

(A)  IT ERRED IN FAILING TO INQUIRE INTO THE CIRCUMSTANCES UNDER
WHICH EACH PARTICULAR INTEREST HAD BEEN ACQUIRED AND IN TREATING ALL
RELATIONSHIPS ALIKE IN THIS PORTION OF THE DECREE.  P. 152. 

(B)  TO THE EXTENT THAT THESE ACQUISITIONS WERE THE FRUITS OF
MONOPOLISTIC PRACTICES OR RESTRAINTS OF TRADE, THEY SHOULD BE DIVESTED
AND NO PERMISSION TO BUY OUT THE OTHER OWNER SHOULD BE GIVEN A
DEFENDANT.  P. 152. 

(C)  EVEN IF LAWFULLY ACQUIRED, DIVESTITURE OF SUCH INTERESTS WOULD
BE JUSTIFIED IF THEY HAVE BEEN UTILIZED AS PART OF THE CONSPIRACY TO
ELIMINATE OR SUPPRESS COMPETITION.  P. 152. 

(D)  IF THE JOINT OWNERSHIP IS AN ALLIANCE WITH ONE WHO IS OR WOULD
BE AN OPERATOR BUT FOR THE JOINT OWNERSHIP, DIVORCE SHOULD BE DECREED,
EVEN THOUGH THE AFFILIATION WAS INNOCENTLY ACQUIRED.  P. 153. 

(E)  IN THOSE INSTANCES WHERE JOINT OWNERSHIP INVOLVES NO MORE THAN
INNOCENT INVESTMENTS BY THOSE WHO ARE NOT ACTUAL OR POTENTIAL OPERATORS
AND IT WAS NOT USED IN FURTHERANCE OF THE CONSPIRACY AND DID NOT RESULT
IN A MONOPOLY, ITS RETENTION BY DEFENDANTS WOULD BE JUSTIFIED AND THEY
MIGHT BE GIVEN PERMISSION TO ACQUIRE THE INTERESTS OF THE INDEPENDENTS
ON A SHOWING BY THEM AND A FINDING BY THE COURT THAT NEITHER MONOPOLY
NOR UNREASONABLE RESTRAINT OF TRADE IN THE EXHIBITION OF FILMS WOULD
RESULT.  P. 153. 

10.  THE DISTRICT COURT'S FINDINGS THAT CERTAIN "FORMULA DEALS"
COVERING THE EXHIBITION OF FEATURE PICTURES IN ENTIRE CIRCUITS OF
THEATRES AND CERTAIN "MASTER AGREEMENTS" COVERING THEIR EXHIBITION IN
TWO OR MORE THEATRES IN A PARTICULAR CIRCUIT UNLAWFULLY RESTRAIN TRADE,
AND ITS INJUNCTION AGAINST THE MAKING OR FURTHER PERFORMANCE OF SUCH
ARRANGEMENTS, ARE SUSTAINED.  PP. 153-155. 

(A)  SUCH ARRANGEMENTS ARE DEVICES FOR STIFLING COMPETITION AND
DIVERTING THE CREAM OF THE BUSINESS TO THE LARGE OPERATORS.  P. 154. 

(B)  THE POOLING OF THE PURCHASING POWER OF AN ENTIRE CIRCUIT IN
BIDDING FOR FILMS IS A MISUSE OF MONOPOLY POWER INSOFAR AS IT COMBINES
THEATRES HAVING NO COMPETITORS WITH THOSE HAVING COMPETITORS.  UNITED
STATES V. GRIFFITH, ANTE, P. 100; SCHINE CHAIN THEATRES V. UNITED
STATES, ANTE, P. 110.  PP. 154-155. 

(C)  DISTRIBUTORS WHO JOIN IN SUCH ARRANGEMENTS BY EXHIBITORS ARE
ACTIVE PARTICIPANTS IN EFFECTUATING A RESTRAINT OF TRADE AND A
MONOPOLISTIC PRACTICE.  P. 155. 

11.  THE FINDINGS OF THE DISTRICT COURT WITH REFERENCE TO "FRANCHISES"
WHEREBY EXHIBITORS OBTAIN ALL FEATURE PICTURES RELEASED BY A
DISTRIBUTOR OVER A PERIOD OF MORE THAN A MOTION PICTURE SEASON ARE SET
ASIDE, SO THAT THE COURT MAY EXAMINE THE PROBLEM IN THE LIGHT OF THE
ELIMINATION FROM THE DECREE OF THE PROVISION FOR COMPETITIVE BIDDING. 
PP. 155-156. 

12.  ON THE RECORD IN THIS CASE, IT CANNOT BE SAID THAT "FRANCHISES"
ARE ILLEGAL PER SE WHEN EXTENDED TO ANY THEATRE OR CIRCUIT NO MATTER
HOW SMALL.  P. 156. 

13.  THE FINDINGS OF THE DISTRICT COURT AS TO "BLOCK-BOOKING" AND ITS
INJUNCTION AGAINST DEFENDANTS PERFORMING OR ENTERING INTO ANY LICENSE
IN WHICH THE RIGHT TO EXHIBIT ONE FEATURE IS CONDITIONED UPON THE
LICENSEE'S TAKING ONE OR MORE OTHER FEATURES, ARE SUSTAINED.  PP. 156
159. 

(A)  THE RESULT OF THIS PRACTICE IS TO ADD TO THE MONOPOLY OF THE
COPYRIGHT IN VIOLATION OF THE PRINCIPLE OF THE PATENT CASES INVOLVING
TYING CLAUSES.  P. 158. 

(B)  TRANSPARENT-WRAP MACHINE CORP. V. STOKES & SMITH CO., 329 U.S.
637, DISTINGUISHED.  P. 159. 

(C)  THE SELLING OF FILMS IN BLOCKS OR GROUPS, WHEN THERE IS NO
REQUIREMENT, EXPRESS OR IMPLIED, FOR THE PURCHASE OF MORE THAN ONE FILM
IS NOT ILLEGAL; BUT IT IS ILLEGAL TO REFUSE TO LICENSE ONE OR MORE
COPYRIGHTS UNLESS ANOTHER COPYRIGHT IS ACCEPTED.  P. 159. 

14.  THE PROVISION OF THE DECREE REGULATING THE PRACTICE OF
"BLINDSELLING," WHEREBY A DISTRIBUTOR LICENSES A FEATURE PICTURE BEFORE
THE EXHIBITOR IS AFFORDED AN OPPORTUNITY TO VIEW IT, IS SUSTAINED.  P.
157, N. 11. 

15.  THE DISTRICT COURT'S FINDINGS THAT DEFENDANTS HAD UNREASONABLY
DISCRIMINATED AGAINST SMALL INDEPENDENT EXHIBITORS AND IN FAVOR OF
LARGE AFFILIATED AND UNAFFILIATED CIRCUITS THROUGH VARIOUS KINDS OF
CONTRACT PROVISIONS AND THAT THESE DISCRIMINATIONS RESULTED IN
RESTRAINTS OF TRADE IN VIOLATION OF THE SHERMAN ACT, ARE SUSTAINED. 
PP. 159-160. 

16.  ON REMAND OF THESE CASES, THE DISTRICT COURT SHOULD PROVIDE
EFFECTIVE RELIEF AGAINST CONTINUANCE OF THESE DISCRIMINATORY PRACTICES,
IN THE LIGHT OF THE ELIMINATION FROM THE DECREE OF THE PROVISION FOR
COMPETITIVE BIDDING.  P. 161. 

17.  THAT LARGE EXHIBITORS WITH WHOM DEFENDANTS DEALT FATHERED THE
ILLEGAL PRACTICES AND FORCED THEM ONTO DEFENDANTS IS NO EXCUSE, IF
TRUE; SINCE ACQUIESCENCE IN AN ILLEGAL SCHEME IS AS MUCH A VIOLATION OF
THE SHERMAN ACT AS THE CREATION AND PROMOTION OF ONE.  P. 161. 

18.  THE REQUIREMENT OF THE DECREE THAT FILMS BE LICENSED ON A
COMPETITIVE BIDDING BASIS SHOULD BE ELIMINATED, BECAUSE IT WOULD
INVOLVE THE JUDICIARY TOO DEEPLY IN THE DAILY OPERATION OF THIS NATION
WIDE BUSINESS AND WOULD UPROOT BUSINESS ARRANGEMENTS AND ESTABLISHED
RELATIONSHIPS WITHOUT OPENING UP TO COMPETITION THE MARKETS WHICH
DEFENDANTS' UNLAWFUL RESTRAINTS HAVE DOMINATED.  PP. 161-166. 

19.  ON REMAND OF THESE CASES, THE FREEDOM OF THE DISTRICT COURT TO
RECONSIDER THE ADEQUACY OF THE DECREE IN THE LIGHT OF THE ELIMINATION
OF THE PROVISION FOR COMPETITIVE BIDDING IS NOT LIMITED TO THOSE PARTS
SPECIFICALLY INDICATED.  P. 166. 

20.  MOTION PICTURES, LIKE NEWSPAPERS AND RADIO, ARE INCLUDED IN THE
PRESS WHOSE FREEDOM IS GUARANTEED BY THE FIRST AMENDMENT; BUT THE
PROBLEM INVOLVED IN THESE CASES BEARS ONLY REMOTELY, IF AT ALL, ON ANY
QUESTION OF FREEDOM OF THE PRESS, SAVE ONLY AS TIMELINESS OF RELEASE
MAY BE A FACTOR OF IMPORTANCE IN SPECIFIC SITUATIONS.  PP. 166-167. 

21.  THE FINDINGS OF THE DISTRICT COURT ON THE SUBJECTS OF MONOPOLY
IN EXHIBITION AND THE NEED FOR DIVESTITURE ARE SET ASIDE AS BEING
DEFICIENT IN THE LIGHT OF THE PRINCIPLES STATED IN THIS OPINION, IN
UNITED STATES V. GRIFFITH, ANTE, P. 100, AND IN SCHINE CHAIN THEATRES
V. UNITED STATES, ANTE, P. 110, AND BECAUSE OF THE ELIMINATION FROM THE
DECREE OF THE PROVISIONS FOR COMPETITIVE BIDDING.  THE INJUNCTION
AGAINST THE FIVE MAJOR DEFENDANTS EXPANDING THEIR THEATRE HOLDINGS IN
ANY MANNER IS ALSO SET ASIDE, IN ORDER THAT THE DISTRICT COURT MAY MAKE
AN ENTIRELY FRESH START ON THESE PHASES OF THE PROBLEMS.  PP. 167-175. 

(A)  IN DETERMINING THE NEED FOR DIVESTITURE, IT IS NOT ENOUGH TO
CONCLUDE, AS THE DISTRICT COURT DID, THAT NONE OF THE DEFENDANTS WAS
ORGANIZED OR HAS BEEN MAINTAINED FOR THE PURPOSE OF ACHIEVING A
"NATIONAL MONOPOLY," NOR THAT THE FIVE MAJOR DEFENDANTS THROUGH THEIR
PRESENT THEATRE HOLDINGS "ALONE" DO NOT AND CANNOT COLLECTIVELY OR
INDIVIDUALLY HAVE A MONOPOLY OF EXHIBITION.  P. 171. 

(B)  WHEN THE STARTING POINT IS A CONSPIRACY TO EFFECT A MONOPOLY
THROUGH RESTRAINTS OF TRADE, IT IS RELEVANT TO DETERMINE WHAT THE
RESULTS OF THE CONSPIRACY WERE, EVEN IF THEY FELL SHORT OF MONOPOLY. 
P. 171. 

(C)  WHILE A MONOPOLY RESULTING FROM THE OWNERSHIP OF THE ONLY
THEATRE IN A TOWN USUALLY DOES NOT CONSTITUTE A VIOLATION OF THE
SHERMAN ACT, EVEN SUCH AN OWNERSHIP IS VULNERABLE IN A SUIT UNDER THE
SHERMAN ACT IF THE PROPERTY WAS ACQUIRED, OR ITS STRATEGIC POSITION
MAINTAINED, AS A RESULT OF PRACTICES WHICH CONSTITUTE UNREASONABLE
RESTRAINTS OF TRADE.  UNITED STATES V. GRIFFITH, ANTE, P. 100.  P.
171. 

(D)  THE PROBLEM OF THE DISTRICT COURT DID NOT END WITH ENJOINING
CONTINUANCE OF THE UNLAWFUL RESTRAINTS NOR WITH DISSOLVING THE
COMBINATION WHICH LAUNCHED THEIR CONSPIRACY; ITS FUNCTION INCLUDES ALSO
UNDOING WHAT THE CONSPIRACY ACHIEVED.  P. 171. 

(E)  THE PROBLEM UNDER THE SHERMAN ACT IS NOT SOLVED MERELY BY
MEASURING MONOPOLY IN TERMS OF SIZE OR EXTENT OF HOLDINGS OR BY
CONCLUDING THAT SINGLE OWNERSHIPS WERE NOT OBTAINED "FOR THE PURPOSE OF
ACHIEVING A NATIONAL MONOPOLY."  P. 172. 

(F)  IT IS THE RELATIONSHIP OF THE UNREASONABLE RESTRAINTS OF TRADE
TO THE POSITION OF THE DEFENDANTS IN THE EXHIBITION FIELD (AND MORE
PARTICULARLY IN THE FIRST-RUN PHASE OF THAT BUSINESS) THAT IS OF FIRST
IMPORTANCE ON THE DIVESTITURE PHASE OF THESE CASES.  P. 172. 

(G)  THE FRUITS OF THE CONSPIRACY MUST BE DENIED TO THE FIVE MAJOR
DEFENDANTS, AS THEY WERE TO THE INDEPENDENTS IN SCHINE CHAIN THEATRES
V. UNITED STATES, ANTE, P. 110.  P. 172. 

(H)  SECTION 1 OF THE SHERMAN ACT OUTLAWS UNREASONABLE RESTRAINTS
IRRESPECTIVE OF THE AMOUNT OF TRADE OR COMMERCE INVOLVED AND SEC. 2
CONDEMNS MONOPOLY OF ANY APPRECIABLE PART OF TRADE OR COMMERCE.  P.
173.    (I)  SPECIFIC INTENT IS NOT A NECESSARY ELEMENT OF A PURPOSE OR
INTENT TO CREATE A MONOPOLY; THE REQUISITE PURPOSE OR INTENT IS PRESENT
IF MONOPOLY RESULTS AS A NECESSARY CONSEQUENCE OF WHAT WAS DONE.  P.
173. 

(J)  MONOPOLY POWER, WHETHER LAWFULLY OR UNLAWFULLY ACQUIRED, MAY
VIOLATE SEC. 2 OF THE SHERMAN ACT THOUGH IT REMAINS UNEXERCISED; THE
EXISTENCE OF THE POWER TO EXCLUDE COMPETITION WHEN IT IS DESIRED TO DO
SO IS ITSELF A VIOLATION OF SEC. 2, IF IT IS COUPLED WITH THE PURPOSE
OR INTENT TO EXERCISE THAT POWER.  P. 173.    (K)  THE SETTING ASIDE OF
THE PROVISION OF THE DECREE ENJOINING THE FIVE MAJOR DEFENDANTS FROM
FURTHER EXPANDING THEIR THEATRE HOLDINGS IS NOT TO BE TAKEN AS
INTIMATING IN ANY WAY THAT THE DISTRICT COURT ERRED IN INCLUDING THIS
PROHIBITION.  P. 175. 

22.  VERTICAL INTEGRATION OF PRODUCING, DISTRIBUTING AND EXHIBITING
MOTION PICTURES IS NOT ILLEGAL PER SE; ITS LEGALITY DEPENDS UPON (1)
THE PURPOSE OR INTENT WITH WHICH IT WAS CONCEIVED OR (2) THE POWER IT
CREATES AND THE ATTENDANT PURPOSE OR INTENT.  PP. 173-174. 

(A)  IT VIOLATES THE SHERMAN ACT IF IT WAS A CALCULATED SCHEME TO
GAIN CONTROL OVER AN APPRECIABLE SEGMENT OF THE MARKET AND TO RESTRAIN
OR SUPPRESS COMPETITION, RATHER THAN AN EXPANSION TO MEET LEGITIMATE
BUSINESS NEEDS.  P. 174. 

(B)  A VERTICALLY INTEGRATED ENTERPRISE WILL CONSTITUTE A MONOPOLY
WHICH, THOUGH UNEXERCISED, VIOLATES THE SHERMAN ACT, IF A POWER TO
EXCLUDE COMPETITION IS COUPLED WITH A PURPOSE OR INTENT TO DO SO.  P.
174. 

(C)  THE FACT THAT THE POWER CREATED BY SIZE WAS UTILIZED IN THE PAST
TO CRUSH OR PREVENT COMPETITION IS POTENT EVIDENCE THAT THE REQUISITE
PURPOSE OR INTENT ATTENDS THE PRESENCE OF MONOPOLY POWER.  P. 174. 

(D)  LIKEWISE BEARING ON THE QUESTION WHETHER MONOPOLY POWER IS
CREATED BY A VERTICAL INTEGRATION, IS THE NATURE OF THE MARKET TO BE
SERVED AND THE LEVERAGE ON THE MARKET WHICH THE PARTICULAR VERTICAL
INTEGRATION CREATES OR MAKES POSSIBLE.  P. 174. 

23.  WHETHER AN INJUNCTION AGAINST THE LICENSING OF FILMS AMONG THE
FIVE MAJOR DEFENDANTS WOULD, IN THE ABSENCE OF COMPETITIVE BIDDING,
SERVE AS A SHORT-RANGE REMEDY IN CERTAIN SITUATIONS TO DISSIPATE THE
EFFECTS OF THE CONSPIRACY IS A QUESTION FOR THE DISTRICT COURT.  P.
175. 

24.  THE DISTRICT COURT HAS NO POWER TO FORCE OR REQUIRE PARTIES TO
SUBMIT TO ARBITRATION IN LIEU OF THE REMEDIES AFFORDED BY CONGRESS FOR
ENFORCING THE ANTITRUST LAWS; BUT IT MAY AUTHORIZE THE MAINTENANCE OF A
VOLUNTARY SYSTEM OF ARBITRATION BY THOSE PARTIES WHO CONSENT, AND IT
MAY PROVIDE THE RULES AND PROCEDURE UNDER WHICH SUCH A SYSTEM IS TO
OPERATE.  P. 176. 

(A)  THE GOVERNMENT DID NOT CONSENT TO A PERMANENT SYSTEM OF
ARBITRATION UNDER THE CONSENT DECREE.  P. 176. 

(B)  WHETHER A VOLUNTARY SYSTEM OF ARBITRATION SHOULD BE INAUGURATED
IS FOR THE DISCRETION OF THE DISTRICT COURT.  P. 176. 

25.  IN VIEW OF THE ELIMINATION FROM THE DECREE OF THE PROVISION FOR
COMPETITIVE BIDDING, THE DISTRICT COURT'S DENIAL OF MOTIONS OF CERTAIN
ASSOCIATIONS OF EXHIBITORS AND A NUMBER OF INDEPENDENT EXHIBITORS FOR
LEAVE TO INTERVENE IN OPPOSITION TO THE SYSTEM OF COMPETITIVE BIDDING
IS AFFIRMED AND THEIR MOTIONS FOR LEAVE TO INTERVENE IN THIS COURT ARE
DENIED.  PP. 176-178. 

UNITED STATES V. PARAMOUNT PICTURES, INC. ET AL. 

NO. 79.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK* . 

*TOGETHER WITH NO. 80, LOEW'S, INCORPORATED ET AL. V. UNITED STATES;
NO. 81, PARAMOUNT PICTURES, INC. ET AL. V. UNITED STATES; NO. 82,
COLUMBIA PICTURES CORP. ET AL. V. UNITED STATES; NO. 83, UNITED ARTISTS
CORP. V. UNITED STATES; NO. 84, UNIVERSAL CORP. ET AL. V. UNITED
STATES; NO. 85, AMERICAN THEATRES ASSN., INC. ET AL. V. UNITED STATES
ET AL.; AND NO. 86, ALLRED ET AL. V. UNITED STATES ET AL., ALSO ON
APPEAL FROM THE SAME COURT. 

IN A SUIT BY THE UNITED STATES TO RESTRAIN VIOLATIONS OF SECS. 1 AND
2 OF THE SHERMAN ACT BY MAJOR MOTION PICTURE PRODUCERS, DISTRIBUTORS
AND EXHIBITORS, THE DISTRICT COURT GRANTED AN INJUNCTION AND OTHER
RELIEF.  66 F.SUPP.  323; 70 F.SUPP.  53.  ON APPEAL TO THIS COURT,
AFFIRMED IN PART, REVERSED IN PART AND REMANDED, P. 178. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARE HERE ON APPEAL  FN1  FROM A JUDGMENT OF A THREE-JUDGE
DISTRICT COURT  FN2 HOLDING THAT THE DEFENDANTS HAD VIOLATED SEC. 1 AND
SEC. 2 OF THE SHERMAN ACT, 26 STAT. 209, AS AMENDED, 50 STAT. 693, 15
U.S.C. SECS. 1, 2, AND GRANTING AN INJUNCTION AND OTHER RELIEF.  66
F.SUPP.  323; 70 F.SUPP.  53. 

THE SUIT WAS INSTITUTED BY THE UNITED STATES UNDER SEC. 4 OF THE
SHERMAN ACT TO PREVENT AND RESTRAIN VIOLATIONS OF IT.  THE DEFENDANTS
FALL INTO THREE GROUPS:  (1) PARAMOUNT PICTURES, INC., LOEW'S,
INCORPORATED, RADIO-KEITH-ORPHEUM CORPORATION, WARNER BROS. PICTURES,
INC., TWENTIETH CENTURY-FOX FILM CORPORATION, WHICH PRODUCE MOTION
PICTURES, AND THEIR RESPECTIVE SUBSIDIARIES OR AFFILIATES WHICH
DISTRIBUTE AND EXHIBIT FILMS.  THESE ARE KNOWN AS THE FIVE MAJOR
DEFENDANTS OR EXHIBITOR-DEFENDANTS.  (2) COLUMBIA PICTURES CORPORATION
AND UNIVERSAL CORPORATION, WHICH PRODUCE MOTION PICTURES, AND THEIR
SUBSIDIARIES WHICH DISTRIBUTE FILMS.  (3) UNITED ARTISTS CORPORATION,
WHICH IS ENGAGED ONLY IN THE DISTRIBUTION OF MOTION PICTURES.  THE FIVE
MAJORS, THROUGH THEIR SUBSIDIARIES OR AFFILIATES, OWN OR CONTROL
THEATRES; THE OTHER DEFENDANTS DO NOT. 

THE COMPLAINT CHARGED THAT THE PRODUCER DEFENDANTS HAD ATTEMPTED TO
MONOPOLIZE AND HAD MONOPOLIZED THE PRODUCTION OF MOTION PICTURES.  THE
DISTRICT COURT FOUND TO THE CONTRARY AND THAT FINDING IS NOT CHALLENGED
HERE.  THE COMPLAINT CHARGED THAT ALL THE DEFENDANTS, AS DISTRIBUTORS,
HAD CONSPIRED TO RESTRAIN AND MONOPOLIZE AND HAD RESTRAINED AND
MONOPOLIZED INTERSTATE TRADE IN THE DISTRIBUTION AND EXHIBITION OF
FILMS BY SPECIFIC PRACTICES WHICH WE WILL SHORTLY RELATE.  IT ALSO
CHARGED THAT THE FIVE MAJOR DEFENDANTS HAD ENGAGED IN A CONSPIRACY TO
RESTRAIN AND MONOPOLIZE, AND HAD RESTRAINED AND MONOPOLIZED, INTERSTATE
TRADE IN THE EXHIBITION OF MOTION PICTURES IN MOST OF THE LARGER CITIES
OF THE COUNTRY.  IT CHARGED THAT THE VERTICAL COMBINATION OF PRODUCING,
DISTRIBUTING, AND EXHIBITING MOTION PICTURES BY EACH OF THE FIVE MAJOR
DEFENDANTS VIOLATED SEC. 1 AND SEC. 2 OF THE ACT.  IT CHARGED THAT EACH
DISTRIBUTOR-DEFENDANT HAD ENTERED INTO VARIOUS CONTRACTS WITH
EXHIBITORS WHICH UNREASONABLY RESTRAINED TRADE.  ISSUE WAS JOINED; AND
A TRIAL WAS HAD.  FN3 

FIRST.  RESTRAINT OF TRADE - (1) PRICE FIXING. 

NO FILM IS SOLD TO AN EXHIBITOR IN THE DISTRIBUTION OF MOTION
PICTURES.  THE RIGHT TO EXHIBIT UNDER COPYRIGHT IS LICENSED.  THE
DISTRICT COURT FOUND THAT THE DEFENDANTS IN THE LICENSES THEY ISSUED
FIXED MINIMUM ADMISSION PRICES WHICH THE EXHIBITORS AGREED TO CHARGE,
WHETHER THE RENTAL OF THE FILM WAS A FLAT AMOUNT OR A PERCENTAGE OF THE
RECEIPTS.  IT FOUND THAT SUBSTANTIALLY UNIFORM MINIMUM PRICES HAD BEEN
ESTABLISHED IN THE LICENSES OF ALL DEFENDANTS.  MINIMUM PRICES WERE
ESTABLISHED IN MASTER AGREEMENTS OR FRANCHISES WHICH WERE MADE BETWEEN
VARIOUS DEFENDANTS AS DISTRIBUTORS AND VARIOUS DEFENDANTS AS EXHIBITORS
AND IN JOINT OPERATING AGREEMENTS MADE BY THE FIVE MAJORS WITH EACH
OTHER AND WITH INDEPENDENT THEATRE OWNERS COVERING THE OPERATION OF
CERTAIN THEATRES.  FN4  BY THESE LATER CONTRACTS MINIMUM ADMISSION
PRICES WERE OFTEN FIXED FOR DOZENS OF THEATRES OWNED BY A PARTICULAR
DEFENDANT IN A GIVEN AREA OF THE UNITED STATES.  MINIMUM PRICES WERE
FIXED IN LICENSES OF EACH OF THE FIVE MAJOR DEFENDANTS.  THE OTHER
THREE DEFENDANTS MADE THE SAME REQUIREMENT IN LICENSES GRANTED TO THE
EXHIBITOR-DEFENDANTS.  WE DO NOT STOP TO ELABORATE ON THESE FINDINGS. 
THEY ARE ADEQUATELY DETAILED BY THE DISTRICT COURT IN ITS OPINION.  SEE
66 F.SUPP.  334-339. 

THE DISTRICT COURT FOUND THAT TWO PRICE-FIXING CONSPIRACIES EXISTED -
A HORIZONTAL ONE BETWEEN ALL THE DEFENDANTS; A VERTICAL ONE BETWEEN
EACH DISTRIBUTOR-DEFENDANT AND ITS LICENSEES.  THE LATTER WAS BASED ON
EXPRESS AGREEMENTS AND WAS PLAINLY ESTABLISHED.  THE FORMER WAS
INFERRED FROM THE PATTERN OF PRICE-FIXING DISCLOSED IN THE RECORD.  WE
THINK THERE WAS ADEQUATE FOUNDATION FOR IT TOO.  IT IS NOT NECESSARY TO
FIND AN EXPRESS AGREEMENT IN ORDER TO FIND A CONSPIRACY.  IT IS ENOUGH
THAT A CONCERT OF ACTION IS CONTEMPLATED AND THAT THE DEFENDANTS
CONFORMED TO THE ARRANGEMENT.  INTERSTATE CIRCUIT V. UNITED STATES, 306
U.S. 208, 226-227; UNITED STATES V. MASONITE CORP., 316 U.S. 265, 275. 
THAT WAS SHOWN HERE. 

ON THIS PHASE OF THE CASE THE MAIN ATTACK IS ON THE DECREE WHICH
ENJOINS THE DEFENDANTS AND THEIR AFFILIATES FROM GRANTING ANY LICENSE,
EXCEPT TO THEIR OWN THEATRES, IN WHICH MINIMUM PRICES FOR ADMISSION TO
A THEATRE ARE FIXED IN ANY MANNER OR BY ANY MEANS.  THE ARGUMENT RUNS
AS FOLLOWS: UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, HELD
THAT AN OWNER OF A PATENT COULD, WITHOUT VIOLATING THE SHERMAN ACT,
GRANT A LICENSE TO MANUFACTURE AND VEND, AND COULD FIX THE PRICE AT
WHICH THE LICENSEE COULD SELL THE PATENTED ARTICLE.  IT IS POINTED OUT
THAT DEFENDANTS DO NOT SELL THE FILMS TO EXHIBITORS, BUT ONLY LICENSE
THEM AND THAT THE COPYRIGHT ACT (35 STAT. 1075, 1088, 17 U.S.C. SEC.
1), LIKE THE PATENT STATUTES, GRANTS THE OWNER EXCLUSIVE RIGHTS.  FN5
AND IT IS ARGUED THAT IF THE PATENTEE CAN FIX THE PRICE AT WHICH HIS
LICENSEE MAY SELL THE PATENTED ARTICLE, THE OWNER OF THE COPYRIGHT
SHOULD BE ALLOWED THE SAME PRIVILEGE.  IT IS MAINTAINED THAT SUCH A
PRIVILEGE IS ESSENTIAL TO PROTECT THE VALUE OF THE COPYRIGHTED FILMS. 

WE START, OF COURSE, FROM THE PREMISE THAT SO FAR AS THE SHERMAN ACT
IS CONCERNED, A PRICE-FIXING COMBINATION IS ILLEGAL PER SE.  UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150; UNITED STATES V.
MASONITE CORPORATION, SUPRA.  WE RECENTLY HELD IN UNITED STATES V.
GYPSUM CO., 333 U.S. 364, 400, THAT EVEN PATENTEES COULD NOT REGIMENT
AN ENTIRE INDUSTRY BY LICENSES CONTAINING PRICE-FIXING AGREEMENTS. 
WHAT WAS SAID THERE IS ADEQUATE TO BAR DEFENDANTS, THROUGH THEIR
HORIZONTAL CONSPIRACY, FROM FIXING PRICES FOR THE EXHIBITION OF FILMS
IN THE MOVIE INDUSTRY.  CERTAINLY THE RIGHTS OF THE COPYRIGHT OWNER ARE
NO GREATER THAN THOSE OF THE PATENTEE. 

NOR CAN THE RESULT BE DIFFERENT WHEN WE COME TO THE VERTICAL
CONSPIRACY BETWEEN EACH DISTRIBUTOR-DEFENDANT AND HIS LICENSEES.  THE
DISTRICT COURT STATED IN ITS FINDINGS: 

"IN AGREEING TO MAINTAIN A STIPULATED MINIMUM ADMISSION PRICE, EACH
EXHIBITOR THEREBY CONSENTS TO THE MINIMUM PRICE LEVEL AT WHICH IT WILL
COMPETE AGAINST OTHER LICENSEES OF THE SAME DISTRIBUTOR WHETHER THEY
EXHIBIT ON THE SAME RUN OR NOT.  THE TOTAL EFFECT IS THAT THROUGH THE
SEPARATE CONTRACTS BETWEEN THE DISTRIBUTOR AND ITS LICENSEES A PRICE
STRUCTURE IS ERECTED WHICH REGULATES THE LICENSEES' ABILITY TO COMPETE
AGAINST ONE ANOTHER IN ADMISSION PRICES." 

THAT CONSEQUENCE SEEMS TO US TO BE INCONTESTABLE.  WE STATED IN
UNITED STATES V. GYPSUM CO., SUPRA, P. 401, THAT "THE REWARDS WHICH
FLOW TO THE PATENTEE AND HIS LICENSEES FROM THE SUPPRESSION OF
COMPETITION THROUGH THE REGULATION OF AN INDUSTRY ARE NOT REASONABLY
AND NORMALLY ADAPTED TO SECURE PECUNIARY REWARD FOR THE PATENTEE'S
MONOPOLY."  THE SAME IS TRUE OF THE REWARDS OF THE COPYRIGHT OWNERS AND
THEIR LICENSEES IN THE PRESENT CASE.  FOR HERE TOO THE LICENSES ARE BUT
A PART OF THE GENERAL PLAN TO SUPPRESS COMPETITION.  THE CASE WHERE A
DISTRIBUTOR FIXES ADMISSION PRICES TO BE CHARGED BY A SINGLE
INDEPENDENT EXHIBITOR, NO OTHER LICENSEES OR EXHIBITORS BEING IN
CONTEMPLATION, SEEMS TO BE WHOLLY ACADEMIC, AS THE DISTRICT COURT
POINTED OUT.  IT IS, THEREFORE, PLAIN THAT UNITED STATES V. GENERAL
ELECTRIC CO., SUPRA, AS APPLIED IN THE PATENT CASES, AFFORDS NO HAVEN
TO THE DEFENDANTS IN THIS CASE.  FOR A COPYRIGHT MAY NO MORE BE USED
THAN A PATENT TO DETER COMPETITION BETWEEN RIVALS IN THE EXPLOITATION
OF THEIR LICENSES.  SEE INTERSTATE CIRCUIT V. UNITED STATES, SUPRA, P.
230. 

(2)  CLEARANCES AND RUNS. 

CLEARANCES ARE DESIGNED TO PROTECT A PARTICULAR RUN OF A FILM AGAINST
A SUBSEQUENT RUN.  FN6 THE DISTRICT COURT FOUND THAT ALL OF THE
DISTRIBUTOR-DEFENDANTS USED CLEARANCE PROVISIONS AND THAT THEY WERE
STATED IN SEVERAL DIFFERENT WAYS OR IN COMBINATIONS:  IN TERMS OF A
GIVEN PERIOD BETWEEN DESIGNATED RUNS; IN TERMS OF ADMISSION PRICES
CHARGED BY COMPETING THEATRES; IN TERMS OF A GIVEN PERIOD OF CLEARANCE
OVER SPECIFICALLY NAMED THEATRES; IN TERMS OF SO MANY DAYS' CLEARANCE
OVER SPECIFIED AREAS OR TOWNS; OR IN TERMS OF CLEARANCES AS FIXED BY
OTHER DISTRIBUTORS. 

THE DEPARTMENT OF JUSTICE MAINTAINED BELOW THAT CLEARANCES ARE
UNLAWFUL PER SE UNDER THE SHERMAN ACT.  BUT THAT IS A QUESTION WE NEED
NOT CONSIDER, FOR THE DISTRICT COURT RULED OTHERWISE AND THAT
CONCLUSION IS NOT CHALLENGED HERE.  IN ITS VIEW THEIR JUSTIFICATION WAS
FOUND IN THE ASSURANCE THEY GIVE THE EXHIBITOR THAT THE DISTRIBUTOR
WILL NOT LICENSE A COMPETITOR TO SHOW THE FILM EITHER AT THE SAME TIME
OR SO SOON THEREAFTER THAT THE EXHIBITOR'S EXPECTED INCOME FROM THE RUN
WILL BE GREATLY DIMINISHED.  A CLEARANCE WHEN USED TO PROTECT THAT
INTEREST OF THE EXHIBITOR WAS REASONABLE, IN THE VIEW OF THE COURT,
WHEN NOT UNDULY EXTENDED AS TO AREA OR DURATION.  THUS THE COURT
CONCLUDED THAT ALTHOUGH CLEARANCES MIGHT INDIRECTLY AFFECT ADMISSION
PRICES, THEY DO NOT FIX THEM AND THAT THEY MAY BE REASONABLE RESTRAINTS
OF TRADE UNDER THE SHERMAN ACT. 

THE DISTRICT COURT HELD THAT IN DETERMINING WHETHER A CLEARANCE IS
UNREASONABLE, THE FOLLOWING FACTORS ARE RELEVANT: 

(1)  THE ADMISSION PRICES OF THE THEATRES INVOLVED, AS SET BY THE
EXHIBITORS; 

(2)  THE CHARACTER AND LOCATION OF THE THEATRES INVOLVED, INCLUDING
SIZE, TYPE OF ENTERTAINMENT, APPOINTMENTS, TRANSIT FACILITIES, ETC.; 

(3)  THE POLICY OF OPERATION OF THE THEATRES INVOLVED, SUCH AS THE
SHOWING OF DOUBLE FEATURES, GIFT NIGHTS, GIVE-AWAYS, PREMIUMS, CUT-RATE
TICKETS, LOTTERIES, ETC.; 

(4)  THE RENTAL TERMS AND LICENSE FEES PAID BY THE THEATRES INVOLVED
AND THE REVENUES DERIVED BY THE DISTRIBUTOR-DEFENDANT FROM SUCH
THEATRES; 

(5)  THE EXTENT TO WHICH THE THEATRES INVOLVED COMPETE WITH EACH
OTHER FOR PATRONAGE; 

(6)  THE FACT THAT A THEATRE INVOLVED IS AFFILIATED WITH A DEFENDANT
DISTRIBUTOR OR WITH AN INDEPENDENT CIRCUIT OF THEATRES SHOULD BE
DISREGARDED; AND 

(7)  THERE SHOULD BE NO CLEARANCE BETWEEN THEATRES NOT IN SUBSTANTIAL
COMPETITION. 

IT REVIEWED THE EVIDENCE IN LIGHT OF THESE STANDARDS AND CONCLUDED
THAT MANY OF THE CLEARANCES GRANTED BY THE DEFENDANTS WERE
UNREASONABLE.  WE DO NOT STOP TO RETRACE THOSE STEPS.  THE EVIDENCE IS
AMPLE TO SHOW, AS THE DISTRICT COURT PLAINLY DEMONSTRATED, SEE 66
F.SUPP.  PP. 343-346, THAT MANY CLEARANCES HAD NO RELATION TO THE
COMPETITIVE FACTORS WHICH ALONE COULD JUSTIFY THEM.  FN7 THE CLEARANCES
WHICH WERE IN VOGUE HAD, INDEED, ACQUIRED A FIXED AND UNIFORM CHARACTER
AND WERE MADE APPLICABLE TO SITUATIONS WITHOUT REGARD TO THE SPECIAL
CIRCUMSTANCES WHICH ARE NECESSARY TO SUSTAIN THEM AS REASONABLE
RESTRAINTS OF TRADE.  THE EVIDENCE IS AMPLE TO SUPPORT THE FINDING OF
THE DISTRICT COURT THAT THE DEFENDANTS EITHER PARTICIPATED IN EVOLVING
THIS UNIFORM SYSTEM OF CLEARANCES OR ACQUIESCED IN IT AND SO FURTHERED
ITS EXISTENCE.  THAT EVIDENCE, LIKE THE EVIDENCE ON THE PRICE-FIXING
PHASE OF THE CASE, IS THEREFORE ADEQUATE TO SUPPORT THE FINDING OF A
CONSPIRACY TO RESTRAIN TRADE BY IMPOSING UNREASONABLE CLEARANCES. 

THE DISTRICT COURT ENJOINED DEFENDANTS AND THEIR AFFILIATES FROM
AGREEING WITH EACH OTHER OR WITH ANY EXHIBITORS OR DISTRIBUTORS TO
MAINTAIN A SYSTEM OF CLEARANCES, OR FROM GRANTING ANY CLEARANCE BETWEEN
THEATRES NOT IN SUBSTANTIAL COMPETITION, OR FROM GRANTING OR ENFORCING
ANY CLEARANCE AGAINST THEATRES IN SUBSTANTIAL COMPETITION WITH THE
THEATRE RECEIVING THE LICENSE FOR EXHIBITION IN EXCESS OF WHAT IS
REASONABLY NECESSARY TO PROTECT THE LICENSEE IN THE RUN GRANTED.  IN
VIEW OF THE FINDINGS THIS RELIEF WAS PLAINLY WARRANTED. 

SOME OF THE DEFENDANTS ASK THAT THIS PROVISION BE CONSTRUED (OR, IF
NECESSARY, MODIFIED) TO ALLOW LICENSORS IN GRANTING CLEARANCES TO TAKE
INTO CONSIDERATION WHAT IS REASONABLY NECESSARY FOR A FAIR RETURN TO
THE LICENSOR.  WE REJECT THAT SUGGESTION.  IF THAT WERE ALLOWED, THEN
THE EXHIBITOR-DEFENDANTS WOULD HAVE AN EASY METHOD OF KEEPING ALIVE AT
LEAST SOME OF THE CONSEQUENCES OF THE EFFECTIVE CONSPIRACY WHICH THEY
LAUNCHED.  FOR THEY COULD THEN JUSTIFY CLEARANCES GRANTED BY OTHER
DISTRIBUTORS IN FAVOR OF THEIR THEATRES IN TERMS OF THE COMPETITIVE
REQUIREMENTS OF THOSE THEATRES, AND AT THE SAME TIME JUSTIFY THE
RESTRICTIONS THEY IMPOSE UPON INDEPENDENTS IN TERMS OF THE NECESSITY OF
PROTECTING THEIR FILM RENTAL AS LICENSOR.  THAT IS TOO POTENT A WEAPON
TO LEAVE IN THE HANDS OF THOSE WHOSE PROCLIVITY TO UNLAWFUL CONDUCT HAS
BEEN SO MARKED.  IT PLAINLY SHOULD NOT BE ALLOWED SO LONG AS THE
EXHIBITOR-DEFENDANTS OWN THEATRES.  FOR IN ITS BALDEST TERMS IT IS IN
THE HANDS OF THE DEFENDANTS NO LESS THAN A POWER TO RESTRICT THE
COMPETITION OF OTHERS IN THE WAY DEEMED MOST DESIRABLE BY THEM.  IN THE
SETTING OF THIS CASE THE ONLY MEASURE OF REASONABLENESS OF A CLEARANCE
BY SHERMAN ACT STANDARDS IS THE SPECIAL NEEDS OF THE LICENSEE FOR THE
COMPETITIVE ADVANTAGES IT AFFORDS. 

WHETHER THE SAME RESTRICTIONS WOULD BE APPLICABLE TO A PRODUCER WHO
HAD NOT BEEN A PARTY TO SUCH A CONSPIRACY IS A QUESTION WE DO NOT
REACH. 

OBJECTION IS MADE TO A FURTHER PROVISION OF THIS PART OF THE DECREE
STATING THAT "WHENEVER ANY CLEARANCE PROVISION IS ATTACKED AS NOT LEGAL
UNDER THE PROVISIONS OF THIS DECREE, THE BURDEN SHALL BE UPON THE
DISTRIBUTOR TO SUSTAIN THE LEGALITY THEREOF."  WE THINK THAT PROVISION
WAS JUSTIFIED.  CLEARANCES HAVE BEEN USED ALONG WITH PRICE FIXING TO
SUPPRESS COMPETITION WITH THE THEATRES OF THE EXHIBITOR-DEFENDANTS AND
WITH OTHER FAVORED EXHIBITORS.  THE DISTRICT COURT COULD THEREFORE HAVE
ELIMINATED CLEARANCES COMPLETELY FOR A SUBSTANTIAL PERIOD OF TIME, EVEN
THOUGH, AS IT THOUGHT, THEY WERE NOT ILLEGAL PER SE.  FOR EQUITY HAS
THE POWER TO UPROOT ALL PARTS OF AN ILLEGAL SCHEME - THE VALID AS WELL
AS THE INVALID - IN ORDER TO RID THE TRADE OR COMMERCE OF ALL TAINT OF
THE CONSPIRACY.  UNITED STATES V. BAUSCH & LOMB CO., 321 U.S. 707,
724.  THE COURT CERTAINLY THEN COULD TAKE THE LESSER STEP OF MAKING
THEM PRIMA FACIE INVALID.  BUT WE DO NOT REST ON THAT ALONE.  AS WE
HAVE SAID, THE ONLY JUSTIFICATION FOR CLEARANCES IN THE SETTING OF THIS
CASE IS IN TERMS OF THE SPECIAL NEEDS OF THE LICENSEE FOR THE
COMPETITIVE ADVANTAGES THEY AFFORD.  TO PLACE ON THE DISTRIBUTOR THE
BURDEN OF SHOWING THEIR REASONABLENESS IS TO PLACE IT ON THE ONE PARTY
IN THE BEST POSITION TO EVALUATE THEIR COMPETITIVE EFFECTS.  THOSE WHO
HAVE SHOWN SUCH A MARKED PROCLIVITY FOR UNLAWFUL CONDUCT ARE IN NO
POSITION TO COMPLAIN THAT THEY CARRY THE BURDEN OF SHOWING THAT THEIR
FUTURE CLEARANCES COME WITHIN THE LAW.  CF. UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173, 188. 

(3)  POOLING AGREEMENTS; JOINT OWNERSHIP. 

THE DISTRICT COURT FOUND THE EXHIBITOR-DEFENDANTS HAD AGREEMENTS WITH
EACH OTHER AND THEIR AFFILIATES BY WHICH THEATRES OF TWO OR MORE OF
THEM, NORMALLY COMPETITIVE, WERE OPERATED AS A UNIT, OR MANAGED BY A
JOINT COMMITTEE OR BY ONE OF THE EXHIBITORS, THE PROFITS BEING SHARED
ACCORDING TO PREARRANGED PERCENTAGES.  SOME OF THESE AGREEMENTS
PROVIDED THAT THE PARTIES MIGHT NOT ACQUIRE OTHER COMPETITIVE THEATRES
WITHOUT FIRST OFFERING THEM FOR INCLUSION IN THE POOL.  THE COURT
CONCLUDED THAT THE RESULT OF THESE AGREEMENTS WAS TO ELIMINATE
COMPETITION PRO TANTO BOTH IN EXHIBITION AND IN DISTRIBUTION OF
FEATURES,  FN8  SINCE THE PARTIES WOULD NATURALLY DIRECT THE FILMS TO
THE THEATRES IN WHOSE EARNINGS THEY WERE INTERESTED. 

THE DISTRICT COURT ALSO FOUND THAT THE EXHIBITOR-DEFENDANTS HAD LIKE
AGREEMENTS WITH CERTAIN INDEPENDENT EXHIBITORS.  THOSE ALLIANCES HAD,
IN ITS VIEW, THE EFFECT OF NULLIFYING COMPETITION BETWEEN THE ALLIED
THEATRES AND OF MAKING MORE EFFECTIVE THE COMPETITION OF THE GROUP
AGAINST THEATRES NOT MEMBERS OF THE POOL.  THE COURT FOUND THAT IN SOME
CASES THE OPERATING AGREEMENTS WERE ACHIEVED THROUGH LEASES OF
THEATRES, THE RENTALS BEING MEASURED BY A PERCENTAGE OF PROFITS EARNED
BY THE THEATRES IN THE POOL.  THE DISTRICT COURT REQUIRED THE
DISSOLUTION OF EXISTING POOLING AGREEMENTS AND ENJOINED ANY FUTURE
ARRANGEMENT OF THAT CHARACTER. 

THESE PROVISIONS OF THE DECREE WILL STAND.  THE PRACTICES WERE BALD
EFFORTS TO SUBSTITUTE MONOPOLY FOR COMPETITION AND TO STRENGTHEN THE
HOLD OF THE EXHIBITOR-DEFENDANTS ON THE INDUSTRY BY ALIGNMENT OF
COMPETITORS ON THEIR SIDE.  CLEARER RESTRAINTS OF TRADE ARE DIFFICULT
TO IMAGINE. 

THERE WAS ANOTHER TYPE OF BUSINESS ARRANGEMENT THAT THE DISTRICT
COURT FOUND TO HAVE THE SAME EFFECT AS THE POOLING AGREEMENTS JUST
MENTIONED.  MANY THEATRES ARE OWNED JOINTLY BY TWO OR MORE EXHIBITOR
DEFENDANTS OR BY AN EXHIBITOR-DEFENDANT AND AN INDEPENDENT.  FN9  THE
RESULT IS, ACCORDING TO THE DISTRICT COURT, THAT THE THEATRES ARE
OPERATED "COLLECTIVELY, RATHER THAN COMPETITIVELY."  AND WHERE THE
JOINT OWNERS ARE AN EXHIBITOR-DEFENDANT AND AN INDEPENDENT THE EFFECT
IS, ACCORDING TO THE DISTRICT COURT, THE ELIMINATION BY THE EXHIBITOR
DEFENDANT OF "PUTATIVE COMPETITION BETWEEN ITSELF AND THE OTHER JOINT
OWNER, WHO OTHERWISE WOULD BE IN A POSITION TO OPERATE THEATRES
INDEPENDENTLY."  THE DISTRICT COURT FOUND THESE JOINT OWNERSHIPS OF
THEATRES TO BE UNREASONABLE RESTRAINTS OF TRADE WITHIN THE MEANING OF
THE SHERMAN ACT. 

THE DISTRICT COURT ORDERED THE EXHIBITOR-DEFENDANTS TO DISAFFILIATE
BY TERMINATING THEIR JOINT OWNERSHIP OF THEATRES; AND IT ENJOINED
FUTURE ACQUISITIONS OF SUCH INTERESTS.  ONE IS AUTHORIZED TO BUY OUT
THE OTHER IF IT SHOWS TO THE SATISFACTION OF THE DISTRICT COURT AND
THAT COURT FIRST FINDS THAT SUCH ACQUISITION "WILL NOT UNDULY RESTRAIN
COMPETITION IN THE EXHIBITION OF FEATURE MOTION PICTURES."  THIS
DISSOLUTION AND PROHIBITION OF JOINT OWNERSHIP AS BETWEEN EXHIBITOR
DEFENDANTS WAS PLAINLY WARRANTED.  TO THE EXTENT THAT THEY HAVE JOINT
INTERESTS IN THE OUTLETS FOR THEIR FILMS EACH IN PRACTICAL EFFECT
GRANTS THE OTHER A PRIORITY FOR THE EXHIBITION OF ITS FILMS.  FOR IN
THIS SITUATION, AS IN THE CASE WHERE THEATRES ARE JOINTLY MANAGED, THE
NATURAL GRAVITATION OF FILMS IS TO THE THEATRES IN WHOSE EARNINGS THE
DISTRIBUTORS HAVE AN INTEREST.  JOINT OWNERSHIP BETWEEN EXHIBITOR
DEFENDANTS THEN BECOMES A DEVICE FOR STRENGTHENING THEIR COMPETITIVE
POSITION AS EXHIBITORS BY FORMING AN ALLIANCE AS DISTRIBUTORS.  AN
EXPRESS AGREEMENT TO GRANT EACH OTHER THE PREFERENCE WOULD BE A MOST
EFFECTIVE WEAPON TO STIFLE COMPETITION.  A WORKING ARRANGEMENT OR
BUSINESS DEVICE THAT HAS THAT NECESSARY CONSEQUENCE GATHERS NO IMMUNITY
BECAUSE OF ITS SUBTLETY.  EACH IS A RESTRAINT OF TRADE CONDEMNED BY THE
SHERMAN ACT. 

THE DISTRICT COURT ALSO ORDERED DISAFFILIATION IN THOSE INSTANCES
WHERE THEATRES WERE JOINTLY OWNED BY AN EXHIBITOR-DEFENDANT AND AN
INDEPENDENT, AND WHERE THE INTEREST OF THE EXHIBITOR-DEFENDANT WAS
"GREATER THAN FIVE PER CENT UNLESS SUCH INTEREST SHALL BE NINETY-FIVE
PER CENT OR MORE," AN INDEPENDENT BEING DEFINED FOR THIS PART OF THE
DECREE AS "ANY FORMER, PRESENT OR PUTATIVE MOTION PICTURE THEATRE
OPERATOR WHICH IS NOT OWNED OR CONTROLLED BY THE DEFENDANT HOLDING THE
INTEREST IN QUESTION."  THE EXHIBITOR-DEFENDANTS ARE AUTHORIZED TO
ACQUIRE EXISTING INTERESTS OF THE INDEPENDENTS IN THESE THEATRES IF
THEY ESTABLISH, AND IF THE DISTRICT COURT FIRST FINDS, THAT THE
ACQUISITION "WILL NOT UNDULY RESTRAIN COMPETITION IN THE EXHIBITION OF
FEATURE MOTION PICTURES."  ALL OTHER ACQUISITIONS OF SUCH JOINT
INTERESTS WERE ENJOINED. 

THIS PHASE OF THE DECREE IS STRENUOUSLY ATTACKED.  WE ARE ASKED TO
ELIMINATE IT FOR LACK OF FINDINGS TO SUPPORT IT.  THE ARGUMENT IS THAT
THE FINDINGS SHOW NO MORE THAN THE EXISTENCE OF JOINT OWNERSHIP OF
THEATRES BY EXHIBITOR-DEFENDANTS AND INDEPENDENTS.  THE STATEMENT BY
THE DISTRICT COURT THAT THE JOINT OWNERSHIP ELIMINATES "PUTATIVE
COMPETITION" IS SAID TO BE A MERE CONCLUSION WITHOUT EVIDENTIARY
SUPPORT.  FOR IT IS SAID THAT THE FACTS OF THE RECORD SHOW THAT MANY OF
THE INSTANCES OF JOINT OWNERSHIP WITH AN INDEPENDENT INTEREST ARE CASES
WHOLLY DEVOID OF ANY HISTORY OF OR RELATIONSHIP TO RESTRAINTS OF TRADE
OR MONOPOLISTIC PRACTICES.  SOME ARE SAID TO BE RATHER FORTUITOUS
RESULTS OF BANKRUPTCIES; OTHERS ARE SAID TO BE THE RESULTS OF
INVESTMENTS BY OUTSIDE INTERESTS WHO HAVE NO DESIRE OR CAPACITY TO
OPERATE THEATRES, AND SO ON. 

IT IS CONCEDED THAT THE DISTRICT COURT MADE NO INQUIRY INTO THE
CIRCUMSTANCES UNDER WHICH A PARTICULAR INTEREST HAD BEEN ACQUIRED.  IT
TREATED ALL RELATIONSHIPS ALIKE, INSOFAR AS THE DISAFFILIATION
PROVISION OF THE DECREE IS CONCERNED.  IN THIS WE THINK IT ERRED. 

WE HAVE GONE INTO THE RECORD FAR ENOUGH TO BE CONFIDENT THAT AT LEAST
SOME OF THESE ACQUISITIONS BY THE EXHIBITOR-DEFENDANTS WERE THE
PRODUCTS OF THE UNLAWFUL PRACTICES WHICH THE DEFENDANTS HAVE INFLICTED
ON THE INDUSTRY.  TO THE EXTENT THAT THESE ACQUISITIONS WERE THE FRUITS
OF MONOPOLISTIC PRACTICES OR RESTRAINTS OF TRADE, THEY SHOULD BE
DIVESTED.  AND NO PERMISSION TO BUY OUT THE OTHER OWNER SHOULD BE GIVEN
A DEFENDANT.  UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA, P. 189;
SCHINE CHAIN THEATRES, INC. V. UNITED STATES, ANTE, P. 110.  MOREOVER,
EVEN IF LAWFULLY ACQUIRED, THEY MAY HAVE BEEN UTILIZED AS PART OF THE
CONSPIRACY TO ELIMINATE OR SUPPRESS COMPETITION IN FURTHERANCE OF THE
ENDS OF THE CONSPIRACY.  IN THAT EVENT DIVESTITURE WOULD LIKEWISE BE
JUSTIFIED.  UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA, PP. 189
190.  IN THAT SITUATION PERMISSION TO ACQUIRE THE INTEREST OF THE
INDEPENDENT WOULD HAVE THE UNLAWFUL EFFECT OF PERMITTING THE DEFENDANTS
TO COMPLETE THEIR PLAN TO ELIMINATE HIM. 

FURTHERMORE, IF THE JOINT OWNERSHIP IS AN ALLIANCE WITH ONE WHO IS OR
WOULD BE AN OPERATOR BUT FOR THE JOINT OWNERSHIP, DIVORCE SHOULD BE
DECREED EVEN THOUGH THE AFFILIATION WAS INNOCENTLY ACQUIRED.  FOR THAT
JOINT OWNERSHIP WOULD AFFORD OPPORTUNITY TO PERPETUATE THE EFFECTS OF
THE RESTRAINTS OF TRADE WHICH THE EXHIBITOR-DEFENDANTS HAVE INFLICTED
ON THE INDUSTRY. 

IT SEEMS, HOWEVER, THAT SOME OF THE CASES OF JOINT OWNERSHIP DO NOT
FALL INTO ANY OF THE CATEGORIES WE HAVE LISTED.  SOME APPARENTLY
INVOLVE NO MORE THAN INNOCENT INVESTMENTS BY THOSE WHO ARE NOT ACTUAL
OR POTENTIAL OPERATORS.  IF IN SUCH CASES THE ACQUISITION WAS NOT
IMPROPERLY USED IN FURTHERANCE OF THE CONSPIRACY, ITS RETENTION BY
DEFENDANTS WOULD BE JUSTIFIED ABSENT A FINDING THAT NO MONOPOLY
RESULTED.  AND IN THOSE INSTANCES PERMISSION MIGHT BE GIVEN THE
DEFENDANTS TO ACQUIRE THE INTERESTS OF THE INDEPENDENTS ON A SHOWING BY
THEM AND A FINDING BY THE COURT THAT NEITHER MONOPOLY NOR UNREASONABLE
RESTRAINT OF TRADE IN THE EXHIBITION OF FILMS WOULD RESULT.  IN SHORT,
WE SEE NO REASON TO PLACE A BAN ON THIS TYPE OF OWNERSHIP, AT LEAST SO
LONG AS THEATRE OWNERSHIP BY THE FIVE MAJORS IS NOT PROHIBITED.  THE
RESULTS OF INQUIRY ALONG THE LINES WE HAVE INDICATED MUST AWAIT FURTHER
FINDINGS OF THE DISTRICT COURT ON REMAND OF THE CAUSE. 

(4)  FORMULA DEALS, MASTER AGREEMENTS, AND FRANCHISES. 

A FORMULA DEAL IS A LICENSING AGREEMENT WITH A CIRCUIT OF THEATRES IN
WHICH THE LICENSE FEE OF A GIVEN FEATURE IS MEASURED, FOR THE THEATRES
COVERED BY THE AGREEMENT, BY A SPECIFIED PERCENTAGE OF THE FEATURE'S
NATIONAL GROSS.  THE DISTRICT COURT FOUND THAT PARAMOUNT AND RKO HAD
MADE FORMULA DEALS WITH INDEPENDENT AND AFFILIATED CIRCUITS.  THE
CIRCUIT WAS ALLOWED TO ALLOCATE PLAYING TIME AND FILM RENTALS AMONG THE
VARIOUS THEATRES AS IT SAW FIT.  THE INCLUSION OF THEATRES OF A CIRCUIT
INTO A SINGLE AGREEMENT GIVES NO OPPORTUNITY FOR OTHER THEATRE OWNERS
TO BID FOR THE FEATURE IN THEIR RESPECTIVE AREAS AND, IN THE VIEW OF
THE DISTRICT COURT, IS THEREFORE AN UNREASONABLE RESTRAINT OF TRADE. 
THE DISTRICT COURT FOUND SOME MASTER AGREEMENTS  FN10  OPEN TO THE SAME
OBJECTION.  THOSE ARE THE MASTER AGREEMENTS THAT COVER EXHIBITION IN
TWO OR MORE THEATRES IN A PARTICULAR CIRCUIT AND ALLOW THE EXHIBITOR TO
ALLOCATE THE FILM RENTAL PAID AMONG THE THEATRES AS IT SEES FIT AND TO
EXHIBIT THE FEATURES UPON SUCH PLAYING TIME AS IT DEEMS BEST, AND
LEAVES OTHER TERMS TO THE DISCRETION OF THE CIRCUIT.  THE DISTRICT
COURT ENJOINED THE MAKING OR FURTHER PERFORMANCE OF ANY FORMULA DEAL OF
THE TYPE DESCRIBED ABOVE.  IT ALSO ENJOINED THE MAKING OR FURTHER
PERFORMANCE OF ANY MASTER AGREEMENT COVERING THE EXHIBITION OF FEATURES
IN A NUMBER OF THEATRES. 

THE FINDINGS OF THE DISTRICT COURT IN THESE RESPECTS ARE SUPPORTED BY
FACTS, ITS CONCLUSION THAT THE FORMULA DEALS AND MASTER AGREEMENTS
CONSTITUTE RESTRAINT OF TRADE IS VALID, AND THE RELIEF IS PROPER.  THE
FORMULA DEALS AND MASTER AGREEMENTS ARE UNLAWFUL RESTRAINTS OF TRADE IN
TWO RESPECTS.  IN THE FIRST PLACE, THEY ELIMINATE THE POSSIBILITY OF
BIDDING FOR FILMS THEATRE BY THEATRE.  IN THAT WAY THEY ELIMINATE THE
OPPORTUNITY FOR THE SMALL COMPETITOR TO OBTAIN THE CHOICE FIRST RUNS,
AND PUT A PREMIUM ON THE SIZE OF THE CIRCUIT.  THEY ARE, THEREFORE,
DEVICES FOR STIFLING COMPETITION AND DIVERTING THE CREAM OF THE
BUSINESS TO THE LARGE OPERATORS.  IN THE SECOND PLACE, THE POOLING OF
THE PURCHASING POWER OF AN ENTIRE CIRCUIT IN BIDDING FOR FILMS IS A
MISUSE OF MONOPOLY POWER INSOFAR AS IT COMBINES THE THEATRES IN CLOSED
TOWNS WITH COMPETITIVE SITUATIONS.  THE REASONS HAVE BEEN STATED IN
UNITED STATES V. GRIFFITH, ANTE, P. 100, AND SCHINE CHAIN THEATRES,
INC. V. UNITED STATES, ANTE, P. 110, AND NEED NOT BE REPEATED HERE.  IT
IS HARDLY NECESSARY TO ADD THAT DISTRIBUTORS WHO JOIN IN SUCH
ARRANGEMENTS BY EXHIBITORS ARE ACTIVE PARTICIPANTS IN EFFECTUATING A
RESTRAINT OF TRADE AND A MONOPOLISTIC PRACTICE.  SEE UNITED STATES V.
CRESCENT AMUSEMENT CO., SUPRA, P. 183. 

THE DISTRICT COURT ALSO ENJOINED THE MAKING OR FURTHER PERFORMANCE OF
ANY FRANCHISE.  A FRANCHISE IS A CONTRACT WITH AN EXHIBITOR WHICH
EXTENDS OVER A PERIOD OF MORE THAN A MOTION PICTURE SEASON AND COVERS
THE EXHIBITION OF FEATURES RELEASED BY THE DISTRIBUTOR DURING THE
PERIOD OF THE AGREEMENT.  THE DISTRICT COURT HELD THAT A FRANCHISE
CONSTITUTED A RESTRAINT OF TRADE BECAUSE A PERIOD OF MORE THAN ONE
SEASON WAS TOO LONG AND THE INCLUSION OF ALL FEATURES WAS
DISADVANTAGEOUS TO COMPETITORS.  AT LEAST THAT IS THE WAY WE READ ITS
FINDINGS.    UNIVERSAL AND UNITED ARTISTS OBJECT TO THE OUTLAWRY OF
FRANCHISE AGREEMENTS.  UNIVERSAL POINTS OUT THAT THE CHARGE OF
ILLEGALITY OF FRANCHISES IN THESE CASES WAS RESTRICTED TO FRANCHISES
WITH THEATRES OWNED BY THE MAJOR DEFENDANTS AND TO FRANCHISES WITH
CIRCUITS OR THEATRES IN A CIRCUIT, A CIRCUIT BEING DEFINED IN THE
COMPLAINT AS A GROUP OF MORE THAN FIVE THEATRES CONTROLLED BY THE SAME
PERSON OR A GROUP OF MORE THAN FIVE THEATRES WHICH COMBINE THROUGH A
COMMON AGENT IN LICENSING FILMS.  IT SEEMS, THEREFORE, THAT THE
LEGALITY OF FRANCHISES TO OTHER EXHIBITORS (EXCEPT AS TO BLOCK-BOOKING,
A PRACTICE TO WHICH WE WILL LATER ADVERT) WAS NOT IN ISSUE IN THE
LITIGATION.  MOREOVER, THE FINDINGS ON FRANCHISES ARE CLOUDED BY THE
STATEMENT OF THE DISTRICT COURT IN THE OPINION THAT FRANCHISES
"NECESSARILY CONTRAVENE THE PLAN OF LICENSING EACH PICTURE, THEATRE BY
THEATRE, TO THE HIGHEST BIDDER."  AS WILL BE SEEN HEREAFTER, WE
ELIMINATE FROM THE DECREE THE PROVISION FOR COMPETITIVE BIDDING.  BUT
FOR ITS INCLUSION OF COMPETITIVE BIDDING THE DISTRICT COURT MIGHT WELL
HAVE TREATED THE PROBLEM OF FRANCHISES DIFFERENTLY. 

WE CAN SEE HOW IF FRANCHISES WERE ALLOWED TO BE USED BETWEEN THE
EXHIBITOR-DEFENDANTS EACH MIGHT BE ABLE TO STRENGTHEN ITS STRATEGIC
POSITION IN THE EXHIBITION FIELD AND CONTINUE THE ILL EFFECTS OF THE
CONSPIRACY WHICH THE DECREE IS DESIGNED TO DISSIPATE.  FRANCHISE
AGREEMENTS MAY HAVE BEEN EMPLOYED AS DEVICES TO DISCRIMINATE AGAINST
SOME INDEPENDENTS IN FAVOR OF OTHERS.  WE KNOW FROM THE RECORD THAT
FRANCHISE AGREEMENTS OFTEN CONTAINED DISCRIMINATORY CLAUSES OPERATING
IN FAVOR NOT ONLY OF THEATRES OWNED BY THE DEFENDANTS BUT ALSO OF THE
LARGE CIRCUITS.  BUT WE CANNOT SAY ON THIS RECORD THAT FRANCHISES ARE
ILLEGAL PER SE WHEN EXTENDED TO ANY THEATRE OR CIRCUIT NO MATTER HOW
SMALL.  THE FINDINGS DO NOT DEAL WITH THE ISSUE DOUBTLESSLY DUE TO THE
FACT THAT ANY SYSTEM OF FRANCHISES WOULD NECESSARILY CONFLICT WITH THE
SYSTEM OF COMPETITIVE BIDDING ADOPTED BY THE DISTRICT COURT.  HENCE WE
SET ASIDE THE FINDINGS ON FRANCHISES SO THAT THE COURT MAY EXAMINE THE
PROBLEM IN THE LIGHT OF THE ELIMINATION FROM THE DECREE OF COMPETITIVE
BIDDING. 

WE DO NOT TAKE THAT COURSE IN THE CASE OF FORMULA DEALS AND MASTER
AGREEMENTS, FOR THE FINDINGS IN THESE INSTANCES SEEM TO STAND ON THEIR
OWN BOTTOM AND APPARENTLY HAVE NO NECESSARY DEPENDENCY ON THE PROVISION
FOR COMPETITIVE BIDDING. 

(5)  BLOCK-BOOKING. 

BLOCK-BOOKING IS THE PRACTICE OF LICENSING, OR OFFERING FOR LICENSE,
ONE FEATURE OR GROUP OF FEATURES ON CONDITION THAT THE EXHIBITOR WILL
ALSO LICENSE ANOTHER FEATURE OR GROUP OF FEATURES RELEASED BY THE
DISTRIBUTORS DURING A GIVEN PERIOD.  THE FILMS ARE LICENSED IN BLOCKS
BEFORE THEY ARE ACTUALLY PRODUCED.  ALL THE DEFENDANTS, EXCEPT UNITED
ARTISTS, HAVE ENGAGED IN THE PRACTICE.  BLOCK-BOOKING PREVENTS
COMPETITORS FROM BIDDING FOR SINGLE FEATURES ON THEIR INDIVIDUAL
MERITS.  THE DISTRICT COURT HELD IT ILLEGAL FOR THAT REASON AND FOR THE
REASON THAT IT "ADDS TO THE MONOPOLY OF A SINGLE COPYRIGHTED PICTURE
THAT OF ANOTHER COPYRIGHTED PICTURE WHICH MUST BE TAKEN AND EXHIBITED
IN ORDER TO SECURE THE FIRST."  THAT ENLARGEMENT OF THE MONOPOLY OF THE
COPYRIGHT WAS CONDEMNED BELOW IN RELIANCE ON THE PRINCIPLE WHICH
FORBIDS THE OWNER OF A PATENT TO CONDITION ITS USE ON THE PURCHASE OR
USE OF PATENTED OR UNPATENTED MATERIALS.  SEE ETHYL GASOLINE
CORPORATION V. UNITED STATES, 309 U.S. 436, 459; MORTON SALT CO. V.
SUPPIGER CO., 314 U.S. 488, 491; MERCOID CORP. V. MID-CONTINENT
INVESTMENT CO., 320 U.S. 661, 665.  THE COURT ENJOINED DEFENDANTS FROM
PERFORMING OR ENTERING INTO ANY LICENSE IN WHICH THE RIGHT TO EXHIBIT
ONE FEATURE IS CONDITIONED UPON THE LICENSEE'S TAKING ONE OR MORE OTHER
FEATURES.  FN11 

WE APPROVE THAT RESTRICTION.  THE COPYRIGHT LAW, LIKE THE PATENT
STATUTES, MAKES REWARD TO THE OWNER A SECONDARY CONSIDERATION.  IN FOX
FILM CORP. V. DOYAL, 286 U.S. 123, 127, CHIEF JUSTICE HUGHES SPOKE AS
FOLLOWS RESPECTING THE COPYRIGHT MONOPOLY GRANTED BY CONGRESS, "THE
SOLE INTEREST OF THE UNITED STATES AND THE PRIMARY OBJECT IN CONFERRING
THE MONOPOLY LIE IN THE GENERAL BENEFITS DERIVED BY THE PUBLIC FROM THE
LABORS OF AUTHORS."  IT IS SAID THAT REWARD TO THE AUTHOR OR ARTIST
SERVES TO INDUCE RELEASE TO THE PUBLIC OF THE PRODUCTS OF HIS CREATIVE
GENIUS.  BUT THE REWARD DOES NOT SERVE ITS PUBLIC PURPOSE IF IT IS NOT
RELATED TO THE QUALITY OF THE COPYRIGHT.  WHERE A HIGH QUALITY FILM
GREATLY DESIRED IS LICENSED ONLY IF AN INFERIOR ONE IS TAKEN, THE
LATTER BORROWS QUALITY FROM THE FORMER AND STRENGTHENS ITS MONOPOLY BY
DRAWING ON THE OTHER.  THE PRACTICE TENDS TO EQUALIZE RATHER THAN
DIFFERENTIATE THE REWARD FOR THE INDIVIDUAL COPYRIGHTS.  EVEN WHERE ALL
THE FILMS INCLUDED IN THE PACKAGE ARE OF EQUAL QUALITY, THE REQUIREMENT
THAT ALL BE TAKEN IF ONE IS DESIRED INCREASES THE MARKET FOR SOME. 
EACH STANDS NOT ON ITS OWN FOOTING BUT IN WHOLE OR IN PART ON THE
APPEAL WHICH ANOTHER FILM MAY HAVE.  AS THE DISTRICT COURT SAID, THE
RESULT IS TO ADD TO THE MONOPOLY OF THE COPYRIGHT IN VIOLATION OF THE
PRINCIPLE OF THE PATENT CASES INVOLVING TYING CLAUSES.  FN12 

IT IS ARGUED THAT TRANSPARENT-WRAP MACHINE CORP. V. STOKES & SMITH
CO., 329 U.S. 637, POINTS TO A CONTRARY RESULT.  THAT CASE HELD THAT
THE INCLUSION IN A PATENT LICENSE OF A CONDITION REQUIRING THE LICENSEE
TO ASSIGN IMPROVEMENT PATENTS WAS NOT PER SE ILLEGAL.  BUT THAT
DECISION, CONFINED TO IMPROVEMENT PATENTS, WAS GREATLY INFLUENCED BY
THE FEDERAL STATUTE GOVERNING ASSIGNMENTS OF PATENTS.  IT THEREFORE HAS
NO CONTROLLING SIGNIFICANCE HERE. 

COLUMBIA PICTURES MAKES AN EARNEST ARGUMENT THAT ENFORCEMENT OF THE
RESTRICTION AS TO BLOCK-BOOKING WILL BE VERY DISADVANTAGEOUS TO IT AND
WILL GREATLY IMPAIR ITS ABILITY TO OPERATE PROFITABLY.  BUT THE POLICY
OF THE ANTI-TRUST LAWS IS NOT QUALIFIED OR CONDITIONED BY THE
CONVENIENCE OF THOSE WHOSE CONDUCT IS REGULATED.  NOR CAN A VESTED
INTEREST IN A PRACTICE WHICH CONTRAVENES THE POLICY OF THE ANTI-TRUST
LAWS RECEIVE JUDICIAL SANCTION. 

WE DO NOT SUGGEST THAT FILMS MAY NOT BE SOLD IN BLOCKS OR GROUPS,
WHEN THERE IS NO REQUIREMENT, EXPRESS OR IMPLIED, FOR THE PURCHASE OF
MORE THAN ONE FILM.  ALL WE HOLD TO BE ILLEGAL IS A REFUSAL TO LICENSE
ONE OR MORE COPYRIGHTS UNLESS ANOTHER COPYRIGHT IS ACCEPTED. 

(6)  DISCRIMINATION. 

THE DISTRICT COURT FOUND THAT DEFENDANTS HAD DISCRIMINATED AGAINST
SMALL INDEPENDENT EXHIBITORS AND IN FAVOR OF LARGE AFFILIATED AND
UNAFFILIATED CIRCUITS THROUGH VARIOUS KINDS OF CONTRACT PROVISIONS. 
THESE INCLUDED SUSPENSION OF THE TERMS OF A CONTRACT IF A CIRCUIT
THEATRE REMAINED CLOSED FOR MORE THAN EIGHT WEEKS WITH REINSTATEMENT
WITHOUT LIABILITY ON REOPENING; ALLOWING LARGE PRIVILEGES IN THE
SELECTION AND ELIMINATION OF FILMS; ALLOWING DEDUCTIONS IN FILM RENTALS
IF DOUBLE BILLS ARE PLAYED; GRANTING MOVEOVERS  FN13  AND EXTENDED
RUNS; GRANTING ROAD SHOW PRIVILEGES; FN14  ALLOWING OVERAGE AND
UNDERAGE N15; GRANTING UNLIMITED PLAYING TIME; EXCLUDING FOREIGN
PICTURES AND THOSE OF INDEPENDENT PRODUCERS; AND GRANTING RIGHTS TO
QUESTION THE CLASSIFICATION OF FEATURES FOR RENTAL PURPOSES.  THE
DISTRICT COURT FOUND THAT THE COMPETITIVE ADVANTAGES OF THESE
PROVISIONS WERE SO GREAT THAT THEIR INCLUSION IN CONTRACTS WITH THE
LARGER CIRCUITS AND THEIR EXCLUSION FROM CONTRACTS WITH THE SMALL
INDEPENDENTS CONSTITUTED AN UNREASONABLE DISCRIMINATION AGAINST THE
LATTER.  EACH DISCRIMINATORY CONTRACT CONSTITUTED A CONSPIRACY BETWEEN
LICENSOR AND LICENSEE.  HENCE THE DISTRICT COURT DEEMED IT UNNECESSARY
TO DECIDE WHETHER THE DEFENDANTS HAD CONSPIRED AMONG THEMSELVES TO MAKE
THESE DISCRIMINATIONS.  NO PROVISION OF THE DECREE SPECIFICALLY ENJOINS
THESE DISCRIMINATORY PRACTICES BECAUSE THEY WERE THOUGHT TO BE
IMPOSSIBLE UNDER THE SYSTEM OF COMPETITIVE BIDDING ADOPTED BY THE
DISTRICT COURT. 

THESE FINDINGS ARE AMPLY SUPPORTED BY THE EVIDENCE.  WE CONCUR IN THE
CONCLUSION THAT THESE DISCRIMINATORY PRACTICES ARE INCLUDED AMONG THE
RESTRAINTS OF TRADE WHICH THE SHERMAN ACT CONDEMNS.  SEE INTERSTATE
CIRCUIT V. UNITED STATES, SUPRA, P. 231; UNITED STATES V. CRESCENT
AMUSEMENT CO., SUPRA, PP. 182-183.  IT WILL BE FOR THE DISTRICT COURT
ON REMAND OF THESE CASES TO PROVIDE EFFECTIVE RELIEF AGAINST THEIR
CONTINUANCE, AS OUR ELIMINATION OF THE PROVISION FOR COMPETITIVE
BIDDING LEAVES THIS PHASE OF THE CASES UNGUARDED. 

THERE IS SOME SUGGESTION ON THIS AS WELL AS ON OTHER PHASES OF THE
CASES THAT LARGE EXHIBITORS WITH WHOM DEFENDANTS DEALT FATHERED THE
ILLEGAL PRACTICES AND FORCED THEM ONTO THE DEFENDANTS.  BUT AS THE
DISTRICT COURT OBSERVED, THAT CIRCUMSTANCE IF TRUE DOES NOT HELP THE
DEFENDANTS.  FOR ACQUIESCENCE IN AN ILLEGAL SCHEME IS AS MUCH A
VIOLATION OF THE SHERMAN ACT AS THE CREATION AND PROMOTION OF ONE. 

SECOND - COMPETITIVE BIDDING. 

THE DISTRICT COURT CONCLUDED THAT THE ONLY WAY COMPETITION COULD BE
INTRODUCED INTO THE EXISTING SYSTEM OF FIXED PRICES, CLEARANCES AND
RUNS WAS TO REQUIRE THAT FILMS BE LICENSED ON A COMPETITIVE BIDDING
BASIS.  FILMS ARE TO BE OFFERED TO ALL EXHIBITORS IN EACH COMPETITIVE
AREA.  FN16  THE LICENSE FOR THE DESIRED RUN IS TO BE GRANTED TO THE
HIGHEST RESPONSIBLE BIDDER, UNLESS THE DISTRIBUTOR REJECTS ALL OFFERS. 
THE LICENSES ARE TO BE OFFERED AND TAKEN THEATRE BY THEATRE AND PICTURE
BY PICTURE.  LICENSES TO SHOW FILMS IN THEATRES IN WHICH THE LICENSOR
OWNS DIRECTLY OR INDIRECTLY AN INTEREST OF NINETY-FIVE PER CENT OR MORE
ARE EXCLUDED FROM THE REQUIREMENT FOR COMPETITIVE BIDDING. 

PARAMOUNT IS THE ONLY ONE OF THE FIVE MAJORS WHO OPPOSES THE
COMPETITIVE BIDDING SYSTEM.  COLUMBIA PICTURES, UNIVERSAL, AND UNITED
ARTISTS OPPOSE IT.  THE INTERVENORS REPRESENTING CERTAIN INDEPENDENTS
OPPOSE IT.  AND THE DEPARTMENT OF JUSTICE, WHICH APPARENTLY PROPOSED
THE SYSTEM ORIGINALLY, SPEAKS STRONGLY AGAINST IT HERE. 

AT FIRST BLUSH THERE IS MUCH TO COMMEND THE SYSTEM OF COMPETITIVE
BIDDING.  THE TRADE VICTIMS OF THIS CONSPIRACY HAVE IN LARGE MEASURE
BEEN THE SMALL INDEPENDENT OPERATORS.  THEY ARE THE ONES THAT HAVE FELT
MOST KEENLY THE DISCRIMINATORY PRACTICES AND PREDATORY ACTIVITIES IN
WHICH DEFENDANTS HAVE FREELY INDULGED.  THEY HAVE BEEN THE VICTIMS OF
THE MASSED PURCHASING POWER OF THE LARGER UNITS IN THE INDUSTRY.  IT IS
LARGELY OUT OF THE RUINS OF THE SMALL OPERATORS THAT THE LARGE EMPIRES
OF EXHIBITORS HAVE BEEN BUILT.  THUS IT WOULD APPEAR TO BE A GREAT BOON
TO THEM TO SUBSTITUTE OPEN BIDDING FOR THE PRIVATE DEALS AND FAVORS ON
WHICH THE LARGE OPERATORS HAVE THRIVED.  BUT AFTER REFLECTION WE HAVE
CONCLUDED THAT COMPETITIVE BIDDING INVOLVES THE JUDICIARY SO DEEPLY IN
THE DAILY OPERATION OF THIS NATION-WIDE BUSINESS AND PROMISES SUCH
DUBIOUS BENEFITS THAT IT SHOULD NOT BE UNDERTAKEN. 

EACH FILM IS TO BE LICENSED ON A PARTICULAR RUN TO "THE HIGHEST
RESPONSIBLE BIDDER, HAVING A THEATRE OF A SIZE, LOCATION AND EQUIPMENT
ADEQUATE TO YIELD A REASONABLE RETURN TO THE LICENSOR."  THE BID "SHALL
STATE WHAT RUN SUCH EXHIBITOR DESIRES AND WHAT HE IS WILLING TO PAY FOR
SUCH FEATURE, WHICH STATEMENT MAY SPECIFY A FLAT RENTAL, OR A
PERCENTAGE OF GROSS RECEIPTS, OR BOTH, OR ANY OTHER FORM OF RENTAL, AND
SHALL ALSO SPECIFY WHAT CLEARANCE SUCH EXHIBITOR IS WILLING TO ACCEPT,
THE TIME AND DAYS WHEN SUCH EXHIBITOR DESIRES TO EXHIBIT IT, AND ANY
OTHER OFFERS WHICH SUCH EXHIBITOR MAY CARE TO MAKE."  WE DO NOT DOUBT
THAT IF A COMPETITIVE BIDDING SYSTEM IS ADOPTED ALL THESE PROVISIONS
ARE NECESSARY.  FOR THE LICENSING OF FILMS AT AUCTION IS QUITE
OBVIOUSLY A MORE COMPLICATED MATTER THAN THE LIKE SALES FOR CASH OF
TOBACCO, WHEAT, OR OTHER PRODUCE.  COLUMBIA PUTS THESE PERTINENT
QUERIES:  "NO TWO EXHIBITORS ARE LIKELY TO MAKE THE SAME BID AS TO
DATES, CLEARANCE, METHOD OF FIXING RENTAL, ETC.  MAY BIDS CONTAINING
SUCH DIVERSE FACTORS BE READILY COMPARED?  MAY A FLAT RENTAL BID BE
COMPARED WITH A PERCENTAGE BID?  MAY THE VALUE OF ANY PERCENTAGE BID BE
DETERMINED UNLESS THE ADMISSION PRICE IS FIXED BY THE LICENSE?" 

THE QUESTION AS TO WHO IS THE HIGHEST BIDDER INVOLVES THE USE OF
STANDARDS INCAPABLE OF PRECISE DEFINITION BECAUSE THE BIDS BEING
COMPARED CONTAIN DIFFERENT INGREDIENTS.  DETERMINING WHO IS THE MOST
RESPONSIBLE BIDDER LIKEWISE CANNOT BE REDUCED TO A FORMULA.  THE
DISTRIBUTOR'S JUDGMENT OF THE CHARACTER AND INTEGRITY OF A PARTICULAR
EXHIBITOR MIGHT RESULT IN ACCEPTANCE OF A LOWER BID THAN OTHERS
OFFERED.  YET TO PROVE THAT FAVORITISM WAS SHOWN WOULD BE WELL-NIGH
IMPOSSIBLE, UNLESS PERHAPS ALL THE EXHIBITORS IN THE COUNTRY WERE GIVEN
CLASSIFICATIONS OF RESPONSIBILITY.  IF, INDEED, THE CHOICE BETWEEN
BIDDERS IS NOT TO BE ENTRUSTED TO THE UNCONTROLLED DISCRETION OF THE
DISTRIBUTORS, SOME EFFORT TO STANDARDIZE THE FACTORS INVOLVED IN
DETERMINING "A REASONABLE RETURN TO THE LICENSOR" WOULD SEEM
NECESSARY. 

WE MENTION THESE MATTERS MERELY TO INDICATE THE CHARACTER OF THE JOB
OF SUPERVISING SUCH A COMPETITIVE BIDDING SYSTEM.  IT WOULD INVOLVE THE
JUDICIARY IN THE ADMINISTRATION OF INTRICATE AND DETAILED RULES
GOVERNING PRIORITY, PERIOD OF CLEARANCE, LENGTH OF RUN, COMPETITIVE
AREAS, REASONABLE RETURN, AND THE LIKE.  THE SYSTEM WOULD BE APT TO
REQUIRE AS CLOSE A SUPERVISION AS A CONTINUOUS RECEIVERSHIP, UNLESS THE
DEFENDANTS WERE TO BE ENTRUSTED WITH VAST DISCRETION.  THE JUDICIARY IS
UNSUITED TO AFFAIRS OF BUSINESS MANAGEMENT; AND CONTROL THROUGH THE
POWER OF CONTEMPT IS CRUDE AND CLUMSY AND LACKING IN THE FLEXIBILITY
NECESSARY TO MAKE CONTINUOUS AND DETAILED SUPERVISION EFFECTIVE.  YET
DELEGATION OF THE MANAGEMENT OF THE SYSTEM TO THE DISCRETION OF THOSE
WHO HAD THE GENIUS TO CONCEIVE THE PRESENT CONSPIRACY AND TO EXECUTE IT
WITH THE SUBTLETY WHICH THIS RECORD REVEALS, COULD BE DONE ONLY WITH
THE GREATEST RELUCTANCE.  AT LEAST SUCH CHOICES SHOULD NOT BE FACED
UNLESS THE NEED FOR THE SYSTEM IS GREAT AND ITS BENEFITS PLAIN. 

THE SYSTEM UPROOTS BUSINESS ARRANGEMENTS AND ESTABLISHED
RELATIONSHIPS WITH NO APPARENT OVERALL BENEFIT TO THE SMALL INDEPENDENT
EXHIBITOR.  IF EACH FEATURE MUST GO TO THE HIGHEST RESPONSIBLE BIDDER,
THOSE WITH THE GREATEST PURCHASING POWER WOULD SEEM TO BE IN A FAVORED
POSITION.  THOSE WITH THE LONGEST PURSE - THE EXHIBITOR-DEFENDANTS AND
THE LARGE CIRCUITS - WOULD SEEM TO STAND IN A PREFERRED POSITION.  IF
IN FACT THEY WERE ENABLED THROUGH THE COMPETITIVE BIDDING SYSTEM TO
TAKE THE CREAM OF THE BUSINESS, ELIMINATE THE SMALLER INDEPENDENTS, AND
THUS INCREASE THEIR OWN STRATEGIC HOLD ON THE INDUSTRY, THEY WOULD HAVE
THE CLOAK OF THE COURT'S DECREE AROUND THEM FOR PROTECTION.  HENCE THE
NATURAL ADVANTAGE WHICH THE LARGER AND FINANCIALLY STRONGER EXHIBITORS
WOULD SEEM TO HAVE IN THE BIDDING GIVES US PAUSE.  IF A PREMIUM IS
PLACED ON PURCHASING POWER, THE COURT-CREATED SYSTEM MAY BE A POWERFUL
FACTOR TOWARDS INCREASING THE CONCENTRATION OF ECONOMIC POWER IN THE
INDUSTRY RATHER THAN CLEANSING THE COMPETITIVE SYSTEM OF UNWHOLESOME
PRACTICES.  FOR WHERE THE SYSTEM IN OPERATION PROMISES THE ADVANTAGE TO
THE EXHIBITOR WHO IS IN THE STRONGEST FINANCIAL POSITION, THE
INJUNCTION AGAINST DISCRIMINATION  FN17  IS APT TO HOLD AN EMPTY
PROMISE.  IN THIS CONNECTION IT SHOULD BE NOTED THAT, EVEN THOUGH THE
INDEPENDENTS IN A GIVEN COMPETITIVE AREA DO NOT WANT COMPETITIVE
BIDDING, THE EXHIBITOR-DEFENDANTS CAN INVOKE THE SYSTEM. 

OUR DOUBTS CONCERNING THE COMPETITIVE BIDDING SYSTEM ARE INCREASED BY
THE FACT THAT DEFENDANTS WHO OWN THEATRES ARE ALLOWED TO PRE-EMPT THEIR
OWN FEATURES.  THEY THUS START WITH AN INVENTORY WHICH ALL OTHER
EXHIBITORS LACK.  THE LATTER HAVE NO PROSPECT OF ASSURED RUNS EXCEPT
WHAT THEY GET BY COMPETITIVE BIDDING.  THE PROPOSED SYSTEM DOES NOT
OFFSET IN ANY WAY THE ADVANTAGES WHICH THE EXHIBITOR-DEFENDANTS HAVE BY
WAY OF THEATRE OWNERSHIP.  IT WOULD SEEM IN FACT TO INCREASE THEM.  FOR
THE INDEPENDENTS ARE DEPRIVED OF THE STABILITY WHICH FLOWS FROM
ESTABLISHED BUSINESS RELATIONSHIPS.  UNDER THE PROPOSED SYSTEM THEY CAN
GET FEATURES ONLY IF THEY ARE THE HIGHEST RESPONSIBLE BIDDERS.  THEY
CAN NO LONGER DEPEND ON THEIR PRIVATE SOURCES OF SUPPLY WHICH THEIR
INGENUITY HAS CREATED.  THOSE SOURCES, BUILT PERHAPS ON PRIVATE
RELATIONSHIPS AND REPRESENTING IMPORTANT ITEMS OF GOOD WILL, ARE
BANNED, EVEN THOUGH THEY ARE FREE OF ANY TAINT OF ILLEGALITY. 

THE SYSTEM WAS DESIGNED, AS SOME OF THE DEFENDANTS PUT IT, TO REMEDY
THE DIFFICULTY OF ANY THEATRE TO BREAK INTO OR CHANGE THE EXISTING
SYSTEM OF RUNS AND CLEARANCES.  BUT WE DO NOT SEE HOW, IN PRACTICAL
OPERATION, THE PROPOSED SYSTEM OF COMPETITIVE BIDDING IS LIKELY TO OPEN
UP TO COMPETITION THE MARKETS WHICH DEFENDANTS' UNLAWFUL RESTRAINTS
HAVE DOMINATED.  RATHER REAL DANGER SEEMS TO US TO LIE IN THE
OPPORTUNITIES THE SYSTEM AFFORDS THE EXHIBITOR-DEFENDANTS AND THE OTHER
LARGE OPERATORS TO STRENGTHEN THEIR HOLD IN THE INDUSTRY.  WE ARE
RELUCTANT TO ALTER DECREES IN THESE CASES WHERE THERE IS AGREEMENT WITH
THE DISTRICT COURT ON THE NATURE OF THE VIOLATIONS.  UNITED STATES V.
CRESCENT AMUSEMENT CO., SUPRA, P. 185; INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392, 400.  BUT THE PROVISIONS FOR COMPETITIVE BIDDING
IN THESE CASES PROMISE LITTLE IN THE WAY OF RELIEF AGAINST THE REAL
EVILS OF THE CONSPIRACY.  THEY IMPLICATE THE JUDICIARY HEAVILY IN THE
DETAILS OF BUSINESS MANAGEMENT IF SUPERVISION IS TO BE EFFECTIVE.  THEY
VEST POWERFUL CONTROL IN THE EXHIBITOR-DEFENDANTS OVER THEIR
COMPETITORS IF CLOSE SUPERVISION BY THE COURT IS NOT UNDERTAKEN.  IN
LIGHT OF THESE CONSIDERATIONS WE CONCLUDE THAT THE COMPETITIVE BIDDING
PROVISIONS OF THE DECREE SHOULD BE ELIMINATED SO THAT A MORE EFFECTIVE
DECREE MAY BE FASHIONED. 

WE HAVE ALREADY INDICATED IN PRECEDING PARTS OF THIS OPINION THAT
THIS ALTERATION IN THE DECREE LEAVES A HIATUS OR TWO WHICH WILL HAVE TO
BE FILLED ON REMAND OF THE CASES.  WE WILL INDICATE HEREAFTER ANOTHER
PHASE OF THE PROBLEM WHICH THE DISTRICT COURT SHOULD ALSO RECONSIDER IN
VIEW OF THIS ALTERATION IN THE DECREE.  BUT OUT OF AN ABUNDANCE OF
CAUTION WE ADD THIS ADDITIONAL WORD.  THE COMPETITIVE BIDDING SYSTEM
WAS PERHAPS THE CENTRAL ARCH OF THE DECREE DESIGNED BY THE DISTRICT
COURT.  ITS ELIMINATION MAY AFFECT THE CASES IN WAYS OTHER THAN THOSE
WHICH WE EXPRESSLY MENTION.  HENCE ON REMAND OF THE CASES THE FREEDOM
OF THE DISTRICT COURT TO RECONSIDER THE ADEQUACY OF DECREE IS NOT
LIMITED TO THOSE PARTS WE HAVE SPECIFICALLY INDICATED. 

THIRD.  MONOPOLY, EXPANSION OF THEATRE HOLDINGS, DIVESTITURE. 

THERE IS A SUGGESTION THAT THE HOLD THE DEFENDANTS HAVE ON THE
INDUSTRY IS SO GREAT THAT A PROBLEM UNDER THE FIRST AMENDMENT IS
RAISED.  CF. ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1.  WE HAVE NO
DOUBT THAT MOVING PICTURES, LIKE NEWSPAPERS AND RADIO, ARE INCLUDED IN
THE PRESS WHOSE FREEDOM IS GUARANTEED BY THE FIRST AMENDMENT.  THAT
ISSUE WOULD BE FOCUSED HERE IF WE HAD ANY QUESTION CONCERNING MONOPOLY
IN THE PRODUCTION OF MOVING PICTURES.  BUT MONOPOLY IN PRODUCTION WAS
ELIMINATED AS AN ISSUE IN THESE CASES, AS WE HAVE NOTED.  THE CHIEF
ARGUMENT AT THE BAR IS PHRASED IN TERMS OF MONOPOLY OF EXHIBITION,
RESTRAINTS ON EXHIBITION, AND THE LIKE.  ACTUALLY, THE ISSUE IS EVEN
NARROWER THAN THAT.  THE MAIN CONTEST IS OVER THE CREAM OF THE
EXHIBITION BUSINESS - THAT OF THE FIRST-RUN THEATRES.  BY DEFINING THE
ISSUE SO NARROWLY WE DO NOT INTEND TO BELITTLE ITS IMPORTANCE.  IT
SHOWS, HOWEVER, THAT THE QUESTION HERE IS NOT WHAT THE PUBLIC WILL SEE
OR IF THE PUBLIC WILL BE PERMITTED TO SEE CERTAIN FEATURES.  IT IS
CLEAR THAT UNDER THE EXISTING SYSTEM THE PUBLIC WILL BE DENIED ACCESS
TO NONE.  IF THE PUBLIC CANNOT SEE THE FEATURES ON THE FIRST-RUN, IT
MAY DO SO ON THE SECOND, THIRD, FOURTH, OR LATER RUN.  THE CENTRAL
PROBLEM PRESENTED BY THESE CASES IS WHICH EXHIBITORS GET THE HIGHLY
PROFITABLE FIRST-RUN BUSINESS.  THAT PROBLEM HAS IMPORTANT ASPECTS
UNDER THE SHERMAN ACT.  BUT IT BEARS ONLY REMOTELY, IF AT ALL, ON ANY
QUESTION OF FREEDOM OF THE PRESS, SAVE ONLY AS TIMELINESS OF RELEASE
MAY BE A FACTOR OF IMPORTANCE IN SPECIFIC SITUATIONS. 

THE CONTROVERSY OVER MONOPOLY RELATES TO MONOPOLY IN EXHIBITION AND
MORE PARTICULARLY MONOPOLY IN THE FIRST-RUN PHASE OF THE EXHIBITION
BUSINESS. 

THE FIVE MAJORS IN 1945 HAD INTERESTS IN SOMEWHAT OVER 17 PER CENT OF
THE THEATRES IN THE UNITED STATES - 3,137 OUT OF 18,076.  FN18  THOSE
THEATRES PAID 45 PER CENT OF THE TOTAL DOMESTIC FILM RENTAL RECEIVED BY
ALL EIGHT DEFENDANTS. 

IN THE 92 CITIES OF THE COUNTRY WITH POPULATIONS OVER 100,000 AT
LEAST 70 PER CENT OF ALL THE FIRST-RUN THEATRES ARE AFFILIATED WITH ONE
OR MORE OF THE FIVE MAJORS.  IN 4 OF THOSE CITIES THE FIVE MAJORS HAVE
NO THEATRES.  IN 38 OF THOSE CITIES THERE ARE NO INDEPENDENT FIRST-RUN
THEATRES.  IN NONE OF THE REMAINING 50 CITIES DID LESS THAN THREE OF
THE DISTRIBUTOR-DEFENDANTS LICENSE THEIR PRODUCT ON FIRST RUN TO
THEATRES OF THE FIVE MAJORS.  IN 19 OF THE 50 CITIES LESS THAN THREE OF
THE DISTRIBUTOR-DEFENDANTS LICENSED THEIR PRODUCT ON FIRST RUN TO
INDEPENDENT THEATRES.  IN A MAJORITY OF THE 50 CITIES THE GREATER SHARE
OF ALL OF THE FEATURES OF DEFENDANTS WERE LICENSED FOR FIRST-RUN
EXHIBITION IN THE THEATRES OF THE FIVE MAJORS. 

IN ABOUT 60 PER CENT OF THE 92 CITIES HAVING POPULATIONS OF OVER
100,000, INDEPENDENT THEATRES COMPETE WITH THOSE OF THE FIVE MAJORS IN
FIRST-RUN EXHIBITION.  IN ABOUT 91 PER CENT OF THE 92 CITIES THERE IS
COMPETITION BETWEEN INDEPENDENT THEATRES AND THE THEATRES OF THE FIVE
MAJORS OR BETWEEN THEATRES OF THE FIVE MAJORS THEMSELVES FOR FIRST-RUN
EXHIBITION.  IN ALL OF THE 92 CITIES THERE IS ALWAYS COMPETITION IN
SOME RUN EVEN WHERE THERE IS NO COMPETITION IN FIRST RUNS. 

IN CITIES BETWEEN 25,000 AND 100,000 POPULATIONS THE FIVE MAJORS HAVE
INTERESTS IN 577 OF A TOTAL OF 978 FIRST-RUN THEATRES OR ABOUT 60 PER
CENT.  IN ABOUT 300 ADDITIONAL TOWNS, MOSTLY UNDER 25,000, AN OPERATOR
AFFILIATED WITH ONE OF THE FIVE MAJORS HAS ALL OF THE THEATRES IN THE
TOWN. 

THE DISTRICT COURT HELD THAT THE FIVE MAJORS COULD NOT BE TREATED
COLLECTIVELY SO AS TO ESTABLISH CLAIMS OF GENERAL MONOPOLIZATION IN
EXHIBITION.  IT FOUND THAT NONE OF THEM WAS ORGANIZED OR HAD BEEN
MAINTAINED "FOR THE PURPOSE OF ACHIEVING A NATIONAL MONOPOLY" IN
EXHIBITION.  IT FOUND THAT THE FIVE MAJORS BY THEIR PRESENT THEATRE
HOLDINGS "ALONE" (WHICH AGGREGATE A LITTLE MORE THAN ONE-SIXTH OF ALL
THE THEATRES IN THE UNITED STATES), "DO NOT AND CANNOT COLLECTIVELY OR
INDIVIDUALLY, HAVE A MONOPOLY OF EXHIBITION."  THE DISTRICT COURT ALSO
FOUND THAT WHERE A SINGLE DEFENDANT OWNS ALL OF THE FIRST-RUN THEATRES
IN A TOWN, THERE IS NO SUFFICIENT PROOF THAT THE ACQUISITION WAS FOR
THE PURPOSE OF CREATING A MONOPOLY.  IT FOUND RATHER THAT SUCH
CONSEQUENCE RESULTED FROM THE INERTNESS OF COMPETITORS, THEIR LACK OF
FINANCIAL ABILITY TO BUILD THEATRES COMPARABLE TO THOSE OF THE FIVE
MAJORS, OR THE PREFERENCE OF THE PUBLIC FOR THE BEST-EQUIPPED
THEATRES.  AND THE PERCENTAGE OF FEATURES ON THE MARKET WHICH ANY OF
THE FIVE MAJORS COULD PLAY IN ITS OWN THEATRES WAS FOUND TO BE
RELATIVELY SMALL AND IN NOWISE TO APPROXIMATE A MONOPOLY OF FILM
EXHIBITION.  FN19 

EVEN IN RESPECT OF THE THEATRES JOINTLY OWNED OR JOINTLY OPERATED BY
THE DEFENDANTS WITH EACH OTHER OR WITH INDEPENDENTS, THE DISTRICT COURT
FOUND NO MONOPOLY OR ATTEMPT TO MONOPOLIZE.  THOSE JOINT AGREEMENTS OR
OWNERSHIP WERE FOUND ONLY TO BE UNREASONABLE RESTRAINTS OF TRADE.  THE
DISTRICT COURT, INDEED, FOUND NO MONOPOLY ON ANY PHASE OF THE CASES,
ALTHOUGH IT DID FIND AN ATTEMPT TO MONOPOLIZE IN THE FIXING OF PRICES,
THE GRANTING OF UNREASONABLE CLEARANCES, BLOCK-BOOKING AND THE OTHER
UNLAWFUL RESTRAINTS OF TRADE WE HAVE ALREADY DISCUSSED.  THE "ROOT OF
THE DIFFICULTIES," ACCORDING TO THE DISTRICT COURT, LAY NOT IN THEATRE
OWNERSHIP BUT IN THOSE UNLAWFUL PRACTICES. 

THE DISTRICT COURT DID, HOWEVER, ENJOIN THE FIVE MAJORS FROM
EXPANDING THEIR PRESENT THEATRE HOLDINGS IN ANY MANNER.  FN20  IT
REFUSED TO GRANT THE REQUEST OF THE DEPARTMENT OF JUSTICE FOR TOTAL
DIVESTITURE BY THE FIVE MAJORS OF THEIR THEATRE HOLDINGS.  IT FOUND
THAT TOTAL DIVESTITURE WOULD BE INJURIOUS TO THE FIVE MAJORS AND
DAMAGING TO THE PUBLIC.  ITS THOUGHT ON THE LATTER SCORE WAS THAT THE
NEW SET OF THEATRE OWNERS WHO WOULD TAKE THE PLACE OF THE FIVE MAJORS
WOULD BE UNLIKELY FOR SOME YEARS TO GIVE THE PUBLIC AS GOOD SERVICE AS
THOSE THEY SUPPLANTED "IN VIEW OF THE LATTER'S DEMONSTRATED EXPERIENCE
AND SKILL IN OPERATING WHAT MUST BE REGARDED AS IN GENERAL THE LARGEST
AND BEST EQUIPPED THEATRES."  DIVESTITURE WAS, IT THOUGHT, TOO HARSH A
REMEDY WHERE THERE WAS AVAILABLE THE ALTERNATIVE OF COMPETITIVE
BIDDING.  IT ACCORDINGLY CONCLUDED THAT DIVESTITURE WAS UNNECESSARY "AT
LEAST UNTIL THE EFFICIENCY OF THAT SYSTEM HAS BEEN TRIED AND FOUND
WANTING." 

IT IS CLEAR, SO FAR AS THE FIVE MAJORS ARE CONCERNED, THAT THE AIM OF
THE CONSPIRACY WAS EXCLUSIONARY, I.E. IT WAS DESIGNED TO STRENGTHEN
THEIR HOLD ON THE EXHIBITION FIELD.  IN OTHER WORDS, THE CONSPIRACY HAD
MONOPOLY IN EXHIBITION FOR ONE OF ITS GOALS, AS THE DISTRICT COURT
HELD.  PRICE, CLEARANCE, AND RUN ARE INTERDEPENDENT.  THE CLEARANCE AND
RUN PROVISIONS OF THE LICENSES FIXED THE RELATIVE PLAYING POSITIONS OF
ALL THEATRES IN A CERTAIN AREA; THE MINIMUM PRICE PROVISIONS WERE BASED
ON PLAYING POSITION - THE FIRST-RUN THEATRES BEING REQUIRED TO CHARGE
THE HIGHEST PRICES, THE SECOND-RUN THEATRES THE NEXT HIGHEST, AND SO
ON.  AS THE DISTRICT COURT FOUND, "IN EFFECT, THE DISTRIBUTOR, BY THE
FIXING OF MINIMUM ADMISSION PRICES, ATTEMPTS TO GIVE THE PRIOR-RUN
EXHIBITORS AS NEAR A MONOPOLY OF THE PATRONAGE AS POSSIBLE." 

IT IS, THEREFORE, NOT ENOUGH IN DETERMINING THE NEED FOR DIVESTITURE
TO CONCLUDE WITH THE DISTRICT COURT THAT NONE OF THE DEFENDANTS WAS
ORGANIZED OR HAS BEEN MAINTAINED FOR THE PURPOSE OF ACHIEVING A
"NATIONAL MONOPOLY," NOR THAT THE FIVE MAJORS THROUGH THEIR PRESENT
THEATRE HOLDINGS "ALONE" DO NOT AND CANNOT COLLECTIVELY OR INDIVIDUALLY
HAVE A MONOPOLY OF EXHIBITION.  FOR WHEN THE STARTING POINT IS A
CONSPIRACY TO EFFECT A MONOPOLY THROUGH RESTRAINTS OF TRADE, IT IS
RELEVANT TO DETERMINE WHAT THE RESULTS OF THE CONSPIRACY WERE EVEN IF
THEY FELL SHORT OF MONOPOLY. 

AN EXAMPLE WILL ILLUSTRATE THE PROBLEM.  IN THE POPULAR SENSE THERE
IS A MONOPOLY IF ONE PERSON OWNS THE ONLY THEATRE IN TOWN.  THAT
USUALLY DOES NOT, HOWEVER, CONSTITUTE A VIOLATION OF THE SHERMAN ACT. 
BUT AS WE NOTED IN UNITED STATES V. GRIFFITH, ANTE, P. 100, AND SEE
SCHINE CHAIN THEATRES, INC. V. UNITED STATES, ANTE, P. 110, EVEN SUCH
AN OWNERSHIP IS VULNERABLE IN A SUIT BY THE UNITED STATES UNDER THE
SHERMAN ACT IF THE PROPERTY WAS ACQUIRED, OR ITS STRATEGIC POSITION
MAINTAINED, AS A RESULT OF PRACTICES WHICH CONSTITUTE UNREASONABLE
RESTRAINTS OF TRADE.  OTHERWISE, THERE WOULD BE REWARD FROM THE
CONSPIRACY THROUGH RETENTION OF ITS FRUITS.  HENCE THE PROBLEM OF THE
DISTRICT COURT DOES NOT END WITH ENJOINING CONTINUANCE OF THE UNLAWFUL
RESTRAINTS NOR WITH DISSOLVING THE COMBINATION WHICH LAUNCHED THE
CONSPIRACY.  ITS FUNCTION INCLUDES UNDOING WHAT THE CONSPIRACY
ACHIEVED.  AS WE HAVE DISCUSSED IN SCHINE CHAIN THEATRES, INC. V.
UNITED STATES, ANTE, P. 110, THE REQUIREMENT THAT THE DEFENDANTS
RESTORE WHAT THEY UNLAWFULLY OBTAINED IS NO MORE PUNISHMENT THAN THE
FAMILIAR REMEDY OF RESTITUTION.  WHAT FINDINGS WOULD BE WARRANTED AFTER
SUCH AN INQUIRY IN THE PRESENT CASES, WE DO NOT KNOW.  FOR THE FINDINGS
OF THE DISTRICT COURT DO NOT COVER THIS POINT BEYOND STATING THAT
MONOPOLY WAS AN OBJECTIVE OF THE SEVERAL RESTRAINTS OF TRADE THAT STAND
CONDEMNED. 

MOREOVER, THE PROBLEM UNDER THE SHERMAN ACT IS NOT SOLVED MERELY BY
MEASURING MONOPOLY IN TERMS OF SIZE OR EXTENT OF HOLDINGS OR BY
CONCLUDING THAT SINGLE OWNERSHIPS WERE NOT OBTAINED "FOR THE PURPOSE OF
ACHIEVING A NATIONAL MONOPOLY."  IT IS THE RELATIONSHIP OF THE
UNREASONABLE RESTRAINTS OF TRADE TO THE POSITION OF THE DEFENDANTS IN
THE EXHIBITION FIELD (AND MORE PARTICULARLY IN THE FIRST-RUN PHASE OF
THAT BUSINESS) THAT IS OF FIRST IMPORTANCE ON THE DIVESTITURE PHASE OF
THESE CASES.  THAT IS THE POSITION WE HAVE TAKEN IN SCHINE CHAIN
THEATRES, INC. V. UNITED STATES, ANTE, P. 110, IN DEALING WITH A
PROJECTION OF THE SAME CONSPIRACY THROUGH CERTAIN LARGE CIRCUITS. 
PARITY OF TREATMENT OF THE UNAFFILIATED AND THE AFFILIATED CIRCUITS
REQUIRES THE SAME APPROACH HERE.  FOR THE FRUITS OF THE CONSPIRACY
WHICH ARE DENIED THE INDEPENDENTS MUST ALSO BE DENIED THE FIVE MAJORS. 
IN THIS CONNECTION THERE IS A SUGGESTION THAT ONE RESULT OF THE
CONSPIRACY WAS A GEOGRAPHICAL DIVISION OF TERRITORY AMONG THE FIVE
MAJORS.  WE MENTION IT NOT TO INTIMATE THAT IT IS TRUE BUT ONLY TO
INDICATE THE APPROPRIATE EXTENT OF THE INQUIRY CONCERNING THE EFFECT OF
THE CONSPIRACY IN THEATRE OWNERSHIP BY THE FIVE MAJORS. 

THE FINDINGS OF THE DISTRICT COURT ARE DEFICIENT ON THAT SCORE AND
OBSCURE ON ANOTHER.  THE DISTRICT COURT IN ITS FINDINGS SPEAKS OF THE
ABSENCE OF A "PURPOSE" ON THE PART OF ANY OF THE FIVE MAJORS TO ACHIEVE
A "NATIONAL MONOPOLY" IN THE EXHIBITION OF MOTION PICTURES.  FIRST,
THERE IS NO FINDING AS TO THE PRESENCE OR ABSENCE OF MONOPOLY ON THE
PART OF THE FIVE MAJORS IN THE FIRST-RUN FIELD FOR THE ENTIRE COUNTRY,
IN THE FIRST-RUN FIELD IN THE 92 LARGEST CITIES OF THE COUNTRY, OR IN
THE FIRST-RUN FIELD IN SEPARATE LOCALITIES.  YET THE FIRST-RUN FIELD,
WHICH CONSTITUTES THE CREAM OF THE EXHIBITION BUSINESS, IS THE CORE OF
THE PRESENT CASES.  SECTION 1 OF THE SHERMAN ACT OUTLAWS UNREASONABLE
RESTRAINTS IRRESPECTIVE OF THE AMOUNT OF TRADE OR COMMERCE INVOLVED
(UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 224, 225, N.
59), AND SEC. 2 CONDEMNS MONOPOLY OF "ANY PART" OF TRADE OR COMMERCE. 
"ANY PART" IS CONSTRUED TO MEAN AN APPRECIABLE PART OF INTERSTATE OR
FOREIGN TRADE OR COMMERCE.  UNITED STATES V. YELLOW CAB CO., 332 U.S.
218, 225.  SECOND, WE POINTED OUT IN UNITED STATES V. GRIFFITH, ANTE,
P. 100, THAT "SPECIFIC INTENT" IS NOT NECESSARY TO ESTABLISH A "PURPOSE
OR INTENT" TO CREATE A MONOPOLY BUT THAT THE REQUISITE "PURPOSE OR
INTENT" IS PRESENT IF MONOPOLY RESULTS AS A NECESSARY CONSEQUENCE OF
WHAT WAS DONE.  THE FINDINGS OF THE DISTRICT COURT ON THIS PHASE OF THE
CASES ARE NOT CLEAR, THOUGH WE TAKE THEM TO MEAN BY THE ABSENCE OF
"PURPOSE" THE ABSENCE OF A SPECIFIC INTENT.  SO CONSTRUED THEY ARE
INCONCLUSIVE.  IN ANY EVENT THEY ARE AMBIGUOUS AND MUST BE RECAST ON
REMAND OF THE CASES.  THIRD, MONOPOLY POWER, WHETHER LAWFULLY OR
UNLAWFULLY ACQUIRED, MAY VIOLATE SEC. 2 OF THE SHERMAN ACT THOUGH IT
REMAINS UNEXERCISED (UNITED STATES V. GRIFFITH, ANTE, P. 100), FOR AS
WE STATED IN AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 809,
811, THE EXISTENCE OF POWER "TO EXCLUDE COMPETITION WHEN IT IS DESIRED
TO DO SO" IS ITSELF A VIOLATION OF SEC. 2, PROVIDED IT IS COUPLED WITH
THE PURPOSE OR INTENT TO EXERCISE THAT POWER.  THE DISTRICT COURT,
BEING PRIMARILY CONCERNED WITH THE NUMBER AND EXTENT OF THE THEATRE
HOLDINGS OF DEFENDANTS, DID NOT ADDRESS ITSELF TO THIS PHASE OF THE
MONOPOLY PROBLEM.  HERE ALSO, PARITY OF TREATMENT AS BETWEEN
INDEPENDENTS AND THE FIVE MAJORS AS THEATRE OWNERS, WHO WERE TIED INTO
THE SAME GENERAL CONSPIRACY, NECESSITATES CONSIDERATION OF THIS
QUESTION. 

EXPLORATION OF THESE PHASES OF THE CASES WOULD NOT BE NECESSARY IF,
AS THE DEPARTMENT OF JUSTICE ARGUES, VERTICAL INTEGRATION OF PRODUCING,
DISTRIBUTING AND EXHIBITING MOTION PICTURES IS ILLEGAL PER SE.  BUT THE
MAJORITY OF THE COURT DOES NOT TAKE THAT VIEW.  IN THE OPINION OF THE
MAJORITY THE LEGALITY OF VERTICAL INTEGRATION UNDER THE SHERMAN ACT
TURNS ON (1) THE PURPOSE OR INTENT WITH WHICH IT WAS CONCEIVED, OR (2)
THE POWER IT CREATES AND THE ATTENDANT PURPOSE OR INTENT.  FIRST, IT
RUNS AFOUL OF THE SHERMAN ACT IF IT WAS A CALCULATED SCHEME TO GAIN
CONTROL OVER AN APPRECIABLE SEGMENT OF THE MARKET AND TO RESTRAIN OR
SUPPRESS COMPETITION, RATHER THAN AN EXPANSION TO MEET LEGITIMATE
BUSINESS NEEDS.  UNITED STATES V. READING CO., 253 U.S. 26, 57; UNITED
STATES V. LEHIGH VALLEY R. CO., 254 U.S. 255, 269-270.  SECOND, A
VERTICALLY INTEGRATED ENTERPRISE, LIKE OTHER AGGREGATIONS OF BUSINESS
UNITS (UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416), WILL
CONSTITUTE MONOPOLY WHICH, THOUGH UNEXERCISED, VIOLATES THE SHERMAN ACT
PROVIDED A POWER TO EXCLUDE COMPETITION IS COUPLED WITH A PURPOSE OR
INTENT TO DO SO.  AS WE POINTED OUT IN UNITED STATES V. GRIFFITH, ANTE,
P. 100, 107, N. 10, SIZE IS ITSELF AN EARMARK OF MONOPOLY POWER.  FOR
SIZE CARRIES WITH IT AN OPPORTUNITY FOR ABUSE.  AND THE FACT THAT THE
POWER CREATED BY SIZE WAS UTILIZED IN THE PAST TO CRUSH OR PREVENT
COMPETITION IS POTENT EVIDENCE THAT THE REQUISITE PURPOSE OR INTENT
ATTENDS THE PRESENCE OF MONOPOLY POWER.  SEE UNITED STATES V. SWIFT &
CO., 286 U.S. 106, 116; UNITED STATES V. ALUMINUM CO. OF AMERICA,
SUPRA, P. 430.  LIKEWISE BEARING ON THE QUESTION WHETHER MONOPOLY POWER
IS CREATED BY THE VERTICAL INTEGRATION, IS THE NATURE OF THE MARKET TO
BE SERVED (UNITED STATES V. ALUMINUM CO. OF AMERICA, SUPRA, P. 430),
AND THE LEVERAGE ON THE MARKET WHICH THE PARTICULAR VERTICAL
INTEGRATION CREATES OR MAKES POSSIBLE. 

THESE MATTERS WERE NOT CONSIDERED BY THE DISTRICT COURT.  FOR THAT
REASON, AS WELL AS THE OTHERS WE HAVE MENTIONED, THE FINDINGS ON
MONOPOLY AND DIVESTITURE WHICH WE HAVE DISCUSSED IN THIS PART OF THE
OPINION WILL BE SET ASIDE.  THERE IS AN INDEPENDENT REASON FOR DOING
THAT.  AS WE HAVE SEEN, THE DISTRICT COURT CONSIDERED COMPETITIVE
BIDDING AS AN ALTERNATIVE TO DIVESTITURE IN THE SENSE THAT IT CONCLUDED
THAT FURTHER CONSIDERATION OF DIVESTITURE SHOULD NOT BE HAD UNTIL
COMPETITIVE BIDDING HAD BEEN TRIED AND FOUND WANTING.  SINCE WE
ELIMINATE FROM THE DECREE THE PROVISIONS FOR COMPETITIVE BIDDING, IT IS
NECESSARY TO SET ASIDE THE FINDINGS ON DIVESTITURE SO THAT A NEW START
ON THIS PHASE OF THE CASES MAY BE MADE ON THEIR REMAND. 

IT FOLLOWS THAT THE PROVISION OF THE DECREE BARRING THE FIVE MAJORS
FROM FURTHER THEATRE EXPANSION SHOULD LIKEWISE BE ELIMINATED.  FOR IT
TOO IS RELATED TO THE MONOPOLY QUESTION; AND THE DISTRICT COURT SHOULD
BE ALLOWED TO MAKE AN ENTIRELY FRESH START ON THE WHOLE OF THE
PROBLEM.  WE IN NO WAY INTIMATE, HOWEVER, THAT THE DISTRICT COURT ERRED
IN PROHIBITING FURTHER THEATRE EXPANSION BY THE FIVE MAJORS. 

THE DEPARTMENT OF JUSTICE MAINTAINS THAT IF TOTAL DIVESTITURE IS
DENIED, LICENSING OF FILMS AMONG THE FIVE MAJORS SHOULD BE BARRED.  AS
A PERMANENT REQUIREMENT IT WOULD SEEM TO BE ONLY AN INDIRECT WAY OF
FORCING DIVESTITURE.  FOR THE FINDINGS REVEAL THAT THE FIVE MAJORS
COULD NOT OPERATE THEIR THEATRES FULL TIME ON THEIR OWN FILMS.  FN21
WHETHER THAT STEP WOULD, IN ABSENCE OF COMPETITIVE BIDDING, SERVE AS A
SHORT-RANGE REMEDY IN CERTAIN SITUATIONS TO DISSIPATE THE EFFECTS OF
THE CONSPIRACY (UNITED STATES V. UNIVIS LENS CO., 316 U.S. 241, 254;
UNITED STATES V. BAUSCH & LOMB CO., SUPRA, P. 724; UNITED STATES V.
CRESCENT AMUSEMENT CO., SUPRA, P. 188) IS A QUESTION FOR THE DISTRICT
COURT. 

FOURTH. 

THE CONSENT DECREE CREATED AN ARBITRATION SYSTEM WHICH HAD, IN THE
VIEW OF THE DISTRICT COURT, PROVED USEFUL IN ITS OPERATION.  THE COURT
INDEED THOUGHT THAT THE ARBITRATION SYSTEM HAD DEALT WITH THE PROBLEMS
OF CLEARANCES AND RUNS "WITH RARE EFFICIENCY."  BUT IT DID NOT THINK IT
HAD THE POWER TO CONTINUE AN ARBITRATION SYSTEM WHICH WOULD BE BINDING
ON THE PARTIES, SINCE THE CONSENT DECREE DID NOT BIND THE DEFENDANTS
WHO HAD NOT CONSENTED TO IT AND SINCE THE GOVERNMENT, ACTING PURSUANT
TO THE POWERS RESERVED UNDER THE CONSENT DECREE, MOVED FOR TRIAL OF THE
ISSUES CHARGED IN THE COMPLAINT.  THE DISTRICT COURT RECOMMENDED,
HOWEVER, THAT SOME SUCH SYSTEM BE CONTINUED.  BUT IT INCLUDED NO SUCH
PROVISION IN ITS DECREE. 

WE AGREE THAT THE GOVERNMENT DID NOT CONSENT TO A PERMANENT SYSTEM OF
ARBITRATION UNDER THE CONSENT DECREE AND THAT THE DISTRICT COURT HAS NO
POWER TO FORCE OR REQUIRE PARTIES TO SUBMIT TO ARBITRATION IN LIEU OF
THE REMEDIES AFFORDED BY CONGRESS FOR ENFORCING THE ANTI-TRUST LAWS. 
BUT THE DISTRICT COURT HAS THE POWER TO AUTHORIZE THE MAINTENANCE OF
SUCH A SYSTEM BY THOSE PARTIES WHO CONSENT AND TO PROVIDE THE RULES AND
PROCEDURE UNDER WHICH IT IS TO OPERATE.  THE USE OF THE SYSTEM WOULD
NOT, OF COURSE, BE MANDATORY.  IT WOULD BE MERELY AN AUXILIARY
ENFORCEMENT PROCEDURE, BARRING NO ONE FROM THE USE OF OTHER REMEDIES
THE LAW AFFORDS FOR VIOLATIONS EITHER OF THE SHERMAN ACT OR OF THE
DECREE OF THE COURT.  WHETHER SUCH A SYSTEM OF ARBITRATION SHOULD BE
INAUGURATED IS FOR THE DISCRETION OF THE DISTRICT COURT. 

FIFTH - INTERVENTION. 

CERTAIN ASSOCIATIONS OF EXHIBITORS AND A NUMBER OF INDEPENDENT
EXHIBITORS, APPELLANT-INTERVENORS IN NOS. 85 AND 86, WERE DENIED LEAVE
TO INTERVENE IN THE DISTRICT COURT.  THEY APPEAL FROM THOSE ORDERS. 
THEY ALSO FILED ORIGINAL MOTIONS FOR LEAVE TO INTERVENE IN THIS COURT. 
WE POSTPONED CONSIDERATION OF THE ORIGINAL MOTIONS AND OF OUR
JURISDICTION TO HEAR THE APPEALS UNTIL A HEARING ON THE MERITS OF THE
CASES. 

RULE 24(A) OF THE RULES OF CIVIL PROCEDURE, WHICH PROVIDES FOR
INTERVENTION AS OF RIGHT, READS IN PART AS FOLLOWS:  "UPON TIMELY
APPLICATION ANYONE SHALL BE PERMITTED TO INTERVENE IN AN ACTION: ...
(2) WHEN THE REPRESENTATION OF THE APPLICANT'S INTEREST BY EXISTING
PARTIES IS OR MAY BE INADEQUATE AND THE APPLICANT IS OR MAY BE BOUND BY
A JUDGMENT IN THE ACTION." 

THE COMPLAINT OF THE INTERVENORS WAS DIRECTED TOWARDS THE SYSTEM OF
COMPETITIVE BIDDING.  THE DEPARTMENT OF JUSTICE IS THE REPRESENTATIVE
OF THE PUBLIC IN THESE ANTI-TRUST SUITS.  SO FAR AS THE PROTECTION OF
THE PUBLIC INTEREST IN FREE COMPETITION IS CONCERNED, THE INTERESTS OF
THOSE INTERVENORS WAS ADEQUATELY REPRESENTED.  THE INTERVENORS,
HOWEVER, CLAIM THAT THE SYSTEM OF COMPETITIVE BIDDING WOULD HAVE
OPERATED PREJUDICIALLY TO THEIR RIGHTS.  CF. UNITED STATES V. ST. LOUIS
TERMINAL, 236 U.S. 194, 199.  THEIR ARGUMENT IS THAT THE PLAN OF
COMPETITIVE BIDDING UNDER THE CONTROL OF THE DEFENDANTS WOULD BE A
CONCERT OF ACTION THAT WOULD BE ILLEGAL BUT FOR THE DECREE.  IF
PURSUANT TO THE DECREE DEFENDANTS ACTED UNDER THAT PLAN, THEY WOULD
GAIN IMMUNITY FROM ANY LIABILITY UNDER THE ANTI-TRUST LAWS WHICH
OTHERWISE THEY MIGHT HAVE TO THE INTERVENORS.  THUS, IT IS ARGUED, THE
DECREE WOULD AFFECT THEIR LEGAL RIGHTS AND BE BINDING ON THEM.  THE
REPRESENTATION OF THEIR INTERESTS BY THE DEPARTMENT OF JUSTICE ON THAT
SCORE WAS SAID TO BE INADEQUATE SINCE THAT AGENCY PROPOSED THE IDEA OF
COMPETITIVE BIDDING IN THE DISTRICT COURT. 

WE NEED NOT CONSIDER THE MERITS OF THAT ARGUMENT.  EVEN IF WE ASSUME
THAT THE INTERVENORS ARE CORRECT IN THEIR POSITION, INTERVENTION SHOULD
BE DENIED HERE AND THE ORDERS OF THE DISTRICT COURT DENYING LEAVE TO
INTERVENE MUST BE AFFIRMED.  NOW THAT THE PROVISIONS FOR COMPETITIVE
BIDDING HAVE BEEN ELIMINATED FROM THE DECREE, THERE IS NO BASIS FOR
SAYING THAT THE DECREE AFFECTS THEIR LEGAL RIGHTS.  WHATEVER MAY HAVE
BEEN THE SITUATION BELOW, NO OTHER REASON APPEARS WHY AT THIS STAGE
THEIR INTERVENTION IS WARRANTED.  ANY JUSTIFICATION FOR MAKING THEM
PARTIES HAS DISAPPEARED. 

THE JUDGMENT IN THESE CASES IS AFFIRMED IN PART AND REVERSED IN PART,
AND THE CASES ARE REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  SO ORDERED. 

FN1  SEC. 2 OF THE EXPEDITING ACT OF FEBRUARY 11, 1903, 32 STAT. 823,
AS AMENDED, 15 U.S.C. SEC. 29, AND SEC. 238 OF THE JUDICIAL CODE, AS
AMENDED BY THE ACT OF FEBRUARY 13, 1925, 43 STAT. 936, 938, 28 U.S.C.
SEC. 345. 

FN2  THE COURT WAS CONVENED PURSUANT TO THE PROVISIONS OF THE ACT OF
APRIL 6, 1942, 56 STAT. 198, 199, 15 U.S.C. SEC. 28. 

FN3  BEFORE TRIAL, NEGOTIATIONS FOR A SETTLEMENT WERE UNDERTAKEN.  AS
A RESULT, A CONSENT DECREE AGAINST THE FIVE MAJOR DEFENDANTS WAS
ENTERED NOVEMBER 20, 1940.  THE CONSENT DECREE CONTAINED NO ADMISSION
OF VIOLATION OF LAW AND ADJUDICATED NO ISSUE OF FACT OR LAW, EXCEPT
THAT THE COMPLAINT STATED A CAUSE OF ACTION.  THE DECREE RESERVED TO
THE UNITED STATES THE RIGHT AT THE END OF A THREE-YEAR TRIAL PERIOD TO
SEEK THE RELIEF PRAYED FOR IN THE AMENDED COMPLAINT.  AFTER THE END OF
THE THREE-YEAR PERIOD THE UNITED STATES MOVED FOR TRIAL AGAINST ALL THE
DEFENDANTS. 

FN4  A MASTER AGREEMENT IS A LICENSING AGREEMENT OR "BLANKET DEAL"
COVERING THE EXHIBITION OF FEATURES IN A NUMBER OF THEATRES, USUALLY
COMPRISING A CIRCUIT. 

A FRANCHISE IS A LICENSING AGREEMENT, OR SERIES OF LICENSING
AGREEMENTS, ENTERED INTO AS PART OF THE SAME TRANSACTION, IN EFFECT FOR
MORE THAN ONE MOTION PICTURE SEASON AND COVERING THE EXHIBITION OF
FEATURES RELEASED BY ONE DISTRIBUTOR DURING THE ENTIRE PERIOD OF THE
AGREEMENT. 

AN INDEPENDENT AS USED IN THESE CASES MEANS A PRODUCER, DISTRIBUTOR,
OR EXHIBITOR, AS THE CONTEXT REQUIRES, WHICH IS NOT A DEFENDANT IN THE
ACTION, OR A SUBSIDIARY OR AFFILIATE OF A DEFENDANT. 

FN5  SEE NOTE 12, INFRA. 

FN6  A CLEARANCE IS THE PERIOD OF TIME, USUALLY STIPULATED IN LICENSE
CONTRACTS, WHICH MUST ELAPSE BETWEEN RUNS OF THE SAME FEATURE WITHIN A
PARTICULAR AREA OR IN SPECIFIED THEATRES. 

RUNS ARE SUCCESSIVE EXHIBITIONS OF A FEATURE IN A GIVEN AREA, FIRST
RUN BEING THE FIRST EXHIBITION IN THAT AREA, SECOND-RUN BEING THE NEXT
SUBSEQUENT, AND SO ON, AND INCLUDE SUCCESSIVE EXHIBITIONS IN DIFFERENT
THEATRES, EVEN THOUGH SUCH THEATRES MAY BE UNDER A COMMON OWNERSHIP OR
MANAGEMENT. 

FN7  THUS THE DISTRICT COURT FOUND: 

"SOME LICENSES GRANTED CLEARANCE TO SELL TO ALL THEATRES WHICH THE
EXHIBITOR PARTY TO THE CONTRACT MIGHT THEREAFTER OWN, LEASE, CONTROL,
MANAGE, OR OPERATE AGAINST ALL THEATRES IN THE IMMEDIATE VICINITY OF
THE EXHIBITOR'S THEATRE THEREAFTER ERECTED OR OPENED.  THE PURPOSE OF
THIS TYPE OF CLEARANCE AGREEMENTS WAS TO FIX THE RUN AND CLEARANCE
STATUS OF ANY THEATRE THEREAFTER OPENED NOT ON THE BASIS OF ITS
APPOINTMENTS, SIZE, LOCATION, AND OTHER COMPETITIVE FEATURES NORMALLY
ENTERING INTO SUCH DETERMINATION, BUT RATHER UPON THE SOLE BASIS OF
WHETHER IT WERE OPERATED BY THE EXHIBITOR PARTY TO THE AGREEMENT." 
FN8  A FEATURE IS ANY MOTION PICTURE, REGARDLESS OF TOPIC, THE LENGTH
OF FILM OF WHICH IS IN EXCESS OF 4,000 FEET. 

FN9 THEATRES JOINTLY OWNED WITH INDEPENDENTS: 

PARAMOUNT ....................   993 

WARNER .......................    20 

FOX ..........................    66    RKO
..........................   187 

LOEW'S .......................    21

                        ------ 

TOTAL ........................  1287 

THEATRES JOINTLY OWNED BY TWO DEFENDANTS: 

PARAMOUNT-FOX ................     6 

PARAMOUNT-LOEW'S .............    14 

PARAMOUNT-WARNER .............    25 

PARAMOUNT-RKO ................   150 

LOEW'S-RKO ...................     3 

LOEW'S-WARNER ................     5 

FOX-RKO ......................     1 

WARNER-RKO ...................    10

                            ------ 

TOTAL ........................   214 

OF THE 1287 JOINTLY OWNED WITH INDEPENDENTS, 209 WOULD NOT BE
AFFECTED BY THE DECREE SINCE ONE OF THE OWNERSHIP INTERESTS IS LESS
THAN 5 PER CENT, AN AMOUNT WHICH THE DISTRICT COURT TREATED AS DE
MINIMIS. 

FN10  SEE NOTE 4, SUPRA. 

FN11  BLIND-SELLING IS A PRACTICE WHEREBY A DISTRIBUTOR LICENSES A
FEATURE BEFORE THE EXHIBITOR IS AFFORDED AN OPPORTUNITY TO VIEW IT.  TO
REMEDY THE PROBLEMS CREATED BY THAT PRACTICE THE DISTRICT COURT
INCLUDED THE FOLLOWING PROVISION IN ITS DECREE: 

"TO THE EXTENT THAT ANY OF THE FEATURES HAVE NOT BEEN TRADE SHOWN
PRIOR TO THE GRANTING OF THE LICENSE FOR MORE THAN A SINGLE FEATURE,
THE LICENSEE SHALL BE GIVEN BY THE LICENSOR THE RIGHT TO REJECT TWENTY
PER CENT OF SUCH FEATURES NOT TRADE SHOWN PRIOR TO THE GRANTING OF THE
LICENSE, SUCH RIGHT OF REJECTION TO BE EXERCISED IN THE ORDER OF
RELEASE WITHIN TEN DAYS AFTER THERE HAS BEEN AN OPPORTUNITY AFFORDED TO
THE LICENSEE TO INSPECT THE FEATURE." 

THE COURT ADVANCED THE FOLLOWING AS ITS REASON FOR INCLUSION OF THIS
PROVISION: 

"BLIND-SELLING DOES NOT APPEAR TO BE AS INHERENTLY RESTRICTIVE OF
COMPETITION AS BLOCK-BOOKING, ALTHOUGH IT IS CAPABLE OF SOME ABUSE.  BY
THIS PRACTICE A DISTRIBUTOR COULD PROMISE A PICTURE OF GOOD QUALITY OR
OF A CERTAIN TYPE WHICH WHEN PRODUCED MIGHT PROVE TO BE OF POOR QUALITY
OR OF ANOTHER TYPE - A COMPETING DISTRIBUTOR MEANWHILE BEING UNABLE TO
MARKET ITS PRODUCT AND IN THE END LOSING ITS OUTLETS FOR FUTURE
PICTURES.  THE EVIDENCE INDICATES THAT TRADE-SHOWS, WHICH ARE DESIGNED
TO PREVENT SUCH BLIND-SELLING, ARE POORLY ATTENDED BY EXHIBITORS. 
ACCORDINGLY, EXHIBITORS WHO CHOOSE TO OBTAIN THEIR FILMS FOR EXHIBITION
IN QUANTITIES, NEED TO BE PROTECTED AGAINST BURDENSOME AGREEMENTS BY
BEING GIVEN AN OPTION TO REJECT A CERTAIN PERCENTAGE OF THEIR BLIND
LICENSED PICTURES WITHIN A REASONABLE TIME AFTER THEY SHALL HAVE BECOME
AVAILABLE FOR INSPECTION." 

WE APPROVE THIS PROVISION OF THE DECREE. 

FN12  THE EXCLUSIVE RIGHT GRANTED BY THE COPYRIGHT ACT, 35 STAT.
1075, 17 U.S.C. SEC. 1, INCLUDES NO SUCH PRIVILEGE.  IT PROVIDES, SO
FAR AS MATERIAL HERE, AS FOLLOWS: 

"THAT ANY PERSON ENTITLED THERETO, UPON COMPLYING WITH THE PROVISIONS
OF THIS ACT, SHALL HAVE THE EXCLUSIVE RIGHT: 

"(D)  TO PERFORM OR REPRESENT THE COPYRIGHTED WORK PUBLICLY IF IT BE
A DRAMA OR, IF IT BE A DRAMATIC WORK AND NOT REPRODUCED IN COPIES FOR
SALE, TO VEND ANY MANUSCRIPT OR ANY RECORD WHATSOEVER THEREOF; TO MAKE
OR TO PROCURE THE MAKING OF ANY TRANSCRIPTION OR RECORD THEREOF BY OR
FROM WHICH, IN WHOLE OR IN PART, IT MAY IN ANY MANNER OR BY ANY METHOD
BE EXHIBITED, PERFORMED, REPRESENTED, PRODUCED, OR REPRODUCED; AND TO
EXHIBIT, PERFORM, REPRESENT, PRODUCE, OR REPRODUCE IT IN ANY MANNER OR
BY ANY METHOD WHATSOEVER;" 

FN13  A MOVEOVER IS THE PRIVILEGE GIVEN A LICENSEE TO MOVE A PICTURE
FROM ONE THEATRE TO ANOTHER AS A CONTINUATION OF THE RUN AT THE
LICENSEE'S FIRST THEATRE. 

FN14  A ROAD SHOW IS A PUBLIC EXHIBITION OF A FEATURE IN A LIMITED
NUMBER OF THEATRES, IN ADVANCE OF ITS GENERAL RELEASE, AT ADMISSION
PRICES HIGHER THAN THOSE CUSTOMARILY CHARGED IN FIRST-RUN THEATRES IN
THOSE AREAS. 

FN15  UNDERAGE AND OVERAGE REFER TO THE PRACTICE OF USING EXCESS FILM
RENTAL EARNED IN ONE CIRCUIT THEATRE TO FULFILL A RENTAL COMMITMENT
DEFAULTED BY ANOTHER. 

FN16  COMPETITIVE BIDDING IS REQUIRED ONLY IN A "COMPETITIVE AREA"
WHERE IT IS "DESIRED BY THE EXHIBITORS."  AS THE DISTRICT COURT SAID,
"THE DECREE PROVIDES AN OPPORTUNITY TO BID FOR ANY EXHIBITOR IN A
COMPETITIVE AREA WHO MAY DESIRE TO DO SO." 

THE DETAILS OF THE COMPETITIVE BIDDING SYSTEM WILL BE FOUND IN 70
F.SUPP.  PP. 73-74. 

FN17  THE COMPETITIVE BIDDING PART OF THE DECREE PROVIDES:  "EACH
LICENSE SHALL BE GRANTED SOLELY UPON THE MERITS AND WITHOUT
DISCRIMINATION IN FAVOR OF AFFILIATES, OLD CUSTOMERS OR OTHERS." 

FN18  THE THEATRES WHICH EACH OF THE FIVE MAJORS OWNED INDEPENDENTLY
OF THE OTHERS WERE: PARAMOUNT 1,395 OR 7.72 PER CENT; WARNER 501 OR
2.77 PER CENT; LOEW'S 135 OR .74 PER CENT; FOX 636 OR 3.52 PER CENT;
RKO 109 OR .60 PER CENT.  THERE WERE IN ADDITION 361 THEATRES OR ABOUT
2 PER CENT IN WHICH TWO OR MORE OF THE FIVE MAJORS HAD JOINT
INTERESTS.  THESE FIGURES EXCLUDE CONNECTIONS THROUGH FILM-BUYING OR
MANAGEMENT CONTRACTS OR THROUGH CORPORATIONS IN WHICH A DEFENDANT OWNS
AN INDIRECT MINORITY STOCK INTEREST. 

THESE THEATRES ARE LOCATED IN 922 TOWNS IN 48 STATES AND THE DISTRICT
OF COLUMBIA.  FOR FURTHER DESCRIPTION OF THE DISTRIBUTION OF THEATRES
SEE BERTRAND, EVANS, AND BLANCHARD, THE MOTION PICTURE INDUSTRY - A
PATTERN OF CONTROL 15-16(TNEC MONOGRAPH 43, 1941). 

FN19  THE NUMBER OF FEATURE FILMS RELEASED DURING THE 1943-44 SEASON
BY THE ELEVEN LARGEST DISTRIBUTORS IS AS FOLLOWS:

                                   PERCENTAGES OF TOTAL

                                                WITH     WITH

                  NO. OF FILMS                 "WESTERNS"
"WESTERNS"

            INCLUDED        EXCLUDED 

FOX ................ 33                              8.31
9.85 

LOEW'S ............. 33                              8.31   9.85 

PARAMOUNT .......... 31  7.81            9.25 

RKO ................ 38                 9.57           11.34 

WARNER ............. 19                              4.79
5.67 

COLUMBIA ........... 41                             10.32
12.24 

UNITED ARTISTS ..... 16                              4.04
4.78 

UNIVERSAL .......... 49             12.34           14.63 

REPUBLIC ...........-29 FEATURES                    14.86
8.66

      -30 "WESTERNS" 

MONOGRAM ...........-26 FEATURES                  10.58
7.76

                  -16 "WESTERNS" 

PRC ................-20 FEATURES         9.07            5.97

                  -16 "WESTERNS"

                  -------------------------- 

TOTALS .............397                            100.00
100.00

                  335 WITHOUT "WESTERNS" 

FN20  EXCEPTED FROM THIS PROHIBITION WAS THE ACQUISITION OF INTERESTS
IN THEATRES JOINTLY OWNED, A MATTER WE HAVE DISCUSSED IN A PRECEDING
PORTION OF THIS OPINION. 

FN21  THE DISTRICT COURT FOUND, "EXCEPT FOR A VERY LIMITED NUMBER OF
THEATRES IN THE VERY LARGEST CITIES, THE 18,000 AND MORE THEATRES IN
THE UNITED STATES EXHIBIT THE PRODUCT OF MORE THAN ONE DISTRIBUTOR. 
SUCH THEATRES COULD NOT BE OPERATED ON THE PRODUCT OF ONLY ONE
DISTRIBUTOR." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE FRANKFURTER, DISSENTING IN PART. 

"THE FRAMING OF DECREES SHOULD TAKE PLACE IN THE DISTRICT RATHER THAN
IN APPELLATE COURTS.  THEY ARE INVESTED WITH LARGE DISCRETION TO MODEL
THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE PARTICULAR CASE."  ON THIS
GUIDING CONSIDERATION, THE COURT EARLIER THIS TERM SUSTAINED A SHERMAN
LAW DECREE, WHICH WAS NOT THE OUTCOME OF A LONG TRIAL INVOLVING
COMPLICATED AND CONTESTED FACTS AND THEIR SIGNIFICANCE, BUT THE
FORMULATION OF A SUMMARY JUDGMENT ON THE BARE BONES OF PLEADINGS. 
INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 400-401.  THE
RECORD IN THIS CASE BESPEAKS MORE COMPELLING RESPECT FOR THE DECREE
FASHIONED BY THE DISTRICT COURT OF THREE JUDGES TO PUT AN END TO
VIOLATIONS OF THE SHERMAN LAW AND TO PREVENT THE RECURRENCE, THAN THAT
WHICH LED THIS COURT NOT TO FIND ABUSE OF DISCRETION IN THE DECREE BY A
SINGLE DISTRICT JUDGE IN THE INTERNATIONAL SALT CASE. 

THIS COURT HAS BOTH THE AUTHORITY AND DUTY TO CONSIDER WHETHER A
DECREE IS WELL CALCULATED TO UNDO, AS FAR AS IS POSSIBLE, THE RESULT OF
TRANSACTIONS FORBIDDEN BY THE SHERMAN LAW AND TO GUARD AGAINST THEIR
REPETITION.  BUT IT IS NOT THE FUNCTION OF THIS COURT, AND IT WOULD ILL
DISCHARGE IT, TO DISPLACE THE DISTRICT COURTS AND WRITE DECREES DE
NOVO.  WE ARE, AFTER ALL, AN APPELLATE TRIBUNAL EVEN IN SHERMAN LAW
CASES.  IT COULD NOT BE FAIRLY CLAIMED THAT THIS COURT POSSESSES
GREATER EXPERIENCE, UNDERSTANDING AND PROPHETIC INSIGHT IN RELATION TO
THE MOVIE INDUSTRY, AND IS THEREFORE BETTER EQUIPPED TO FORMULATE A
DECREE FOR THE MOVIE INDUSTRY THAN WAS THE DISTRICT COURT IN THIS CASE,
PRESIDED OVER AS IT WAS BY ONE OF THE WISEST OF JUDGES. 

THE TERMS OF THE DECREE IN THIS LITIGATION AMOUNT, IN EFFECT, TO THE
FORMULATION OF A REGIME FOR THE FUTURE CONDUCT OF THE MOVIE INDUSTRY. 
THE TERMS OF SUCH A REGIME, WITHIN THE SCOPE OF JUDICIAL OVERSIGHT, ARE
NOT TO BE DERIVED FROM PRECEDENTS IN THE LAW REPORTS, NOR, FOR THAT
MATTER, FROM ANY OTHER AVAILABLE REPOSITORY OF KNOWLEDGE.  INESCAPABLY
THE TERMS MUST BE DERIVED FROM AN ASSESSMENT OF CONFLICTING INTERESTS,
NOT QUANTITATIVELY MEASURABLE, AND A PROPHECY REGARDING THE WORKINGS OF
UNTRIED REMEDIES FOR DEALING WITH DISCLOSED EVILS SO AS TO ADVANCE MOST
THE COMPREHENSIVE PUBLIC INTEREST. 

THE CRUCIAL LEGAL QUESTION BEFORE US IS NOT WHETHER WE WOULD HAVE
DRAWN THE DECREE AS THE DISTRICT COURT DREW IT, BUT WHETHER, ON THE
BASIS OF WHAT CAME BEFORE THE DISTRICT COURT, WE CAN SAY THAT IN
FASHIONING REMEDIES IT DID NOT FAIRLY RESPOND TO DISCLOSED VIOLATIONS
AND THEREFORE ABUSED A DISCRETION, THE FAIR EXERCISE OF WHICH WE SHOULD
RESPECT AND NOT TREAT AS AN ABUSE.  DISCRETION MEANS A CHOICE OF
AVAILABLE REMEDIES.  AS BEARING UPON THIS QUESTION, IT IS MOST RELEVANT
TO CONSIDER WHETHER THE DISTRICT COURT SHOWED A SYMPATHETIC OR MERE
NIGGLING AWARENESS OF THE PROPER SCOPE OF THE SHERMAN LAW AND THE RANGE
OF ITS CONDEMNATION.  ADEQUATE REMEDIES ARE NOT LIKELY TO BE FASHIONED
BY THOSE WHO ARE NOT HOSTILE TO EVILS TO BE REMEDIED.  THE DISTRICT
COURT'S OPINION MANIFESTS A STOUT PURPOSE ON THE PART OF THAT COURT TO
ENFORCE ITS THOROUGHGOING UNDERSTANDING OF THE REQUIREMENTS OF THE
SHERMAN LAW AS ELUCIDATED BY THIS COURT.  AND SO WE HAVE BEFORE US THE
DECREE OF A DISTRICT COURT THOROUGHLY AWARE OF THE DEMANDS OF THE
SHERMAN LAW AND MANIFESTLY DETERMINED TO ENFORCE IT IN ALL ITS RIGORS. 

HOW DID THE DISTRICT COURT GO ABOUT WORKING OUT THE TERMS OF THE
DECREE SOME OF WHICH THIS COURT NOW DISPLACES?  THE CASE WAS BEFORE
THAT COURT FROM OCTOBER 8, 1945, TO JANUARY 22, 1947.  A VAST BODY OF
THE EVIDENCE WHICH HAD TO BE CONSIDERED BELOW, AND MUST BE CONSIDERED
HERE IN OVERTURNING THE LOWER COURT'S DECREE, CONSISTED OF DOCUMENTS. 
A MERE ENUMERATION OF THESE DOCUMENTS, NOT PRINTED IN THE RECORD BEFORE
US, REQUIRED A PAMPHLET OF 42 PAGES.  IT TOOK 460 PAGES FOR A SELECTION
OF EXHIBITS DEEMED APPROPRIATE FOR PRINTING BY THE GOVERNMENT.  THE
PRINTED RECORD IN THIS COURT CONSISTS OF 3,841 PAGES.  IT IS ON THE
BASIS OF THIS VAST MASS OF EVIDENCE THAT THE DISTRICT COURT, ON JUNE
11, 1946, FILED ITS CAREFUL OPINION, APPROVED HERE, AS TO THE
SUBSTANTIVE ISSUES.  THEREAFTER, IT HEARD ARGUMENT FOR THREE DAYS AS TO
THE TERMS OF THE JUDGMENT.  THE PARTIES THEN SUBMITTED THEIR PROPOSALS
FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW BY THE DISTRICT COURT. 
AFTER A LONG TRIAL, AN ELABORATE OPINION ON THE MERITS, FULL DISCUSSION
AS TO THE TERMS OF THE DECREE, MORE THAN TWO MONTHS FOR THE GESTATION
OF THE DECREE, THE TERMS WERE FINALLY PROMULGATED. 

I CANNOT BRING MYSELF TO CONCLUDE THAT THE PRODUCT OF SUCH A
PAINSTAKING PROCESS OF ADJUDICATION AS TO A DECREE APPROPRIATE FOR SUCH
A COMPLICATED SITUATION AS THIS RECORD DISCLOSES WAS AN ABUSE OF
DISCRETION, ARRIVED AT AS IT WAS AFTER DUE ABSORPTION OF ALL THE LIGHT
THAT COULD BE SHED UPON REMEDIES APPROPRIATE FOR THE FUTURE.  AFTER
ALL, AS TO SUCH REMEDIES THERE IS NO TEST, ULTIMATELY, EXCEPT THE
WISDOM OF MEN JUDGED BY EVENTS. 

ACCORDINGLY, I WOULD AFFIRM THE DECREE EXCEPT AS TO ONE PARTICULAR,
THAT REGARDING AN ARBITRATION SYSTEM FOR CONTROVERSIES THAT MAY ARISE
UNDER THE DECREE.  THIS RAISES A PURE QUESTION OF LAW AND NOT A
JUDGMENT BASED UPON FACTS AND THEIR SIGNIFICANCE, AS ARE THOSE FEATURES
OF THE DECREE WHICH THE COURT SETS ASIDE.  THE DISTRICT COURT INDICATED
THAT "IN VIEW OF ITS DEMONSTRATED USEFULNESS" SUCH AN ARBITRATION
SYSTEM WAS DESIRABLE TO AID IN THE ENFORCEMENT OF THE DECREE.  THE
DISTRICT COURT, HOWEVER, DEEMED ITSELF POWERLESS TO CONTINUE AN
ARBITRATION SYSTEM WITHOUT THE CONSENT OF THE PARTIES.  I DO NOT FIND
SUCH WANT OF POWER IN THE DISTRICT COURT TO SELECT THIS MEANS OF
ENFORCING THE DECREE MOST EFFECTIVELY, WITH THE LEAST FRICTION AND BY
THE MOST FRUITFUL METHODS.  A DECREE AS DETAILED AND AS COMPLICATED AS
IS NECESSARY TO FIT A SITUATION LIKE THE ONE BEFORE US IS BOUND, EVEN
UNDER THE BEST OF CIRCUMSTANCES, TO RAISE CONTROVERSIES INVOLVING
CONFLICTING CLAIMS AS TO FACTS AND THEIR MEANING.  A COURT COULD
CERTAINLY APPOINT A MASTER TO DEAL WITH QUESTIONS ARISING UNDER THE
DECREE.  I DO NOT APPRECIATE WHY A PROVED SYSTEM OF ARBITRATION,
APPROPRIATE AS EXPERIENCE HAS FOUND IT TO BE APPROPRIATE FOR
ADJUDICATING NUMBERLESS QUESTIONS THAT ARISE UNDER SUCH A DECREE, IS
NOT TO BE TREATED IN EFFECT AS A STANDING MASTER FOR PURPOSES OF THIS
DECREE.  SEE EX PARTE PETERSON, 253 U.S. 300.  I WOULD THEREFORE LEAVE
IT TO THE DISCRETION OF THE DISTRICT COURT TO DETERMINE WHETHER SUCH A
SYSTEM IS NOT AVAILABLE AS AN INSTRUMENT OF AUXILIARY ENFORCEMENT. 
WITH THIS EXCEPTION I WOULD AFFIRM THE DECREE OF THE DISTRICT COURT. 
..END :


















SCHWABACHER V. UNITED STATES, 334 U.S. 182 


NO. 258.  ARGUED JANUARY 6-7, 1948.  - DECIDED MAY 3, 1948.  - 72
F.SUPP.  560, REVERSED. 


1.  THE INTERSTATE COMMERCE COMMISSION, UNDER SEC. 5 OF THE INTERSTATE
COMMERCE ACT AS AMENDED, APPROVED AND AUTHORIZED A VOLUNTARY MERGER OF
TWO RAILROAD COMPANIES INTO ONE CORPORATION.  THE COMMISSION FOUND THAT
THE PUBLIC INTEREST WOULD BE SERVED BY THE MERGER AND UNIFICATION OF
THEIR PROPERTIES AND OPERATIONS AND THAT THE PLAN AS A WHOLE, AND AS
APPLIED TO EACH GROUP OF SHAREHOLDERS, WAS JUST AND REASONABLE; BUT IT
DISCLAIMED JURISDICTION TO PASS UPON THE CLAIMS OF DISSENTING
STOCKHOLDERS WHO OWNED A SMALL PERCENTAGE OF ONE CLASS OF STOCK OF ONE
OF THE COMPANIES AND WHO HAD INTERVENED AND CLAIMED THAT THE TERMS OF
THE MERGER DEPRIVED THEM OF CHARTER RIGHTS UNDER THE LAW OF THE STATE
OF INCORPORATION OF THEIR COMPANY.  THE COMMISSION CONSIDERED THAT THE
AMOUNT INVOLVED IN THE CLAIMS OF THE DISSENTING STOCKHOLDERS, HOWEVER
SETTLED, WAS NOT SUFFICIENT TO AFFECT THE SOLVENCY OF THE NEW COMPANY
OR JEOPARDIZE ITS OPERATIONS.  HELD:  THE COMMISSION WAS NOT FREE TO
RENOUNCE OR DELEGATE ITS POWER TO SETTLE FINALLY THE AMOUNT OF CAPITAL
LIABILITIES OF THE NEW COMPANY AND THE PROPORTION OR AMOUNT THEREOF
WHICH EACH CLASS OF STOCKHOLDERS SHOULD RECEIVE ON ACCOUNT OF ITS
CONTRIBUTIONS TO THE NEW ENTITY.  PP. 184-202. 

2.  THE JURISDICTION OF THE COMMISSION UNDER BOTH SEC. 5 AND SEC. 20A
IS MADE PLENARY AND EXCLUSIVE AND INDEPENDENT OF ALL OTHER STATE OR
FEDERAL AUTHORITY.  P. 197. 

3.  THE COMMISSION MAY NOT LEAVE CLAIMS GROWING OUT OF THE CAPITAL
STRUCTURE OF ONE OF THE CONSTITUENT COMPANIES TO BE ADDED TO THE
OBLIGATIONS OF THE NEW COMPANY, CONTINGENT UPON THE DECISION OF SOME
OTHER TRIBUNAL OR AGREEMENT OF THE PARTIES THEMSELVES, BUT MUST PASS
UPON AND APPROVE ALL CAPITAL LIABILITIES WHICH THE MERGED COMPANY WILL
ASSUME AND DISCHARGE AS A RESULT OF THE MERGER.  PP. 197-198. 

4.  THE COMMISSION MUST LOOK FOR STANDARDS IN PASSING ON A VOLUNTARY
MERGER ONLY TO THE INTERSTATE COMMERCE ACT.  P. 198. 

5.  THE RIGHTS OF SHAREHOLDERS OF RAILROADS MERGING VOLUNTARILY UNDER
THE INTERSTATE COMMERCE ACT ARE GOVERNED BY FEDERAL, NOT STATE, LAW;
AND, APART FROM MEETING THE TEST OF THE PUBLIC INTEREST, THE MERGER
TERMS AS TO STOCKHOLDERS, MUST BE FOUND TO BE JUST AND REASONABLE.  PP.
198-199. 

6.  IN APPRAISING A STOCKHOLDER'S POSITION IN A MERGER AS TO JUSTICE
AND REASONABLENESS, IT IS NOT THE PROMISE THAT A CORPORATE CHARTER MADE
TO HIM BUT THE CURRENT WORTH OF THAT PROMISE THAT GOVERNS; IT IS NOT
WHAT HE ONCE PUT INTO A CONSTITUENT COMPANY BUT WHAT VALUE HE IS
CONTRIBUTING TO THE MERGER THAT IS TO BE MADE GOOD.  P. 199. 

7.  IT WOULD BE INCONSISTENT TO ALLOW STATE LAW TO APPLY A
LIQUIDATION BASIS TO WHAT FEDERAL LAW DESIGNATES AS A BASIS FOR
CONTINUED PUBLIC SERVICE.  P. 200. 

8.  WHEN STOCKHOLDERS ARE GIVEN WHAT IT IS JUST AND REASONABLE THEY
SHOULD HAVE, THE INTERSTATE COMMERCE ACT DOES NOT PERMIT STATE LAW TO
IMPOSE GREATER OBLIGATIONS ON THE FINANCIAL STRUCTURE OF THE MERGING
RAILROADS WITH CONSEQUENT INCREASED CALLS UPON THEIR ASSETS OR EARNING
CAPACITY.  P. 201. 

9.  NO RIGHTS ALLEGED TO HAVE BEEN GRANTED TO DISSENTING STOCKHOLDERS
BY STATE LAW PROVISION CONCERNING LIQUIDATION SURVIVE THE MERGER
AGREEMENT APPROVED BY THE REQUISITE NUMBER OF STOCKHOLDERS AND APPROVED
BY THE COMMISSION AS JUST AND REASONABLE.  ANY SUCH RIGHTS ARE, AS A
MATTER OF FEDERAL LAW, ACCORDED RECOGNITION IN THE OBLIGATION OF THE
COMMISSION NOT TO APPROVE ANY PLAN WHICH IS NOT JUST AND REASONABLE. 
P. 201. 

SCHWABACHER ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF VIRGINIA. 

A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
APPROVING AND AUTHORIZING A VOLUNTARY MERGER OF TWO RAILROADS WAS
DISMISSED BY A DISTRICT COURT OF THREE JUDGES.  72 F.SUPP.  560.  A
DIRECT APPEAL WAS TAKEN TO THIS COURT.  REVERSED AND REMANDED, P. 202. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY GROWS OUT OF THE VOLUNTARY MERGER OF CHESAPEAKE &
OHIO RAILWAY COMPANY AND PERE MARQUETTE RAILWAY COMPANY, WHICH
COMPANIES, TOGETHER WITH ALLEGHANY CORPORATION, SOUGHT APPROVAL BY THE
INTERSTATE COMMERCE COMMISSION.  PERE MARQUETTE IS INCORPORATED UNDER
THE LAWS OF MICHIGAN, WHILE CHESAPEAKE & OHIO IS CHARTERED BY
VIRGINIA.  CHESAPEAKE & OHIO ACQUIRED AND FOR SOME YEARS EXERCISED
ACTIVE CONTROL OF PERE MARQUETTE, WHOSE PROPERTIES AND OPERATIONS
COMPLEMENT RATHER THAN COMPETE WITH THOSE OF CHESAPEAKE & OHIO.  LATE
IN 1945 MERGER PROCEEDINGS WERE COMMENCED UNDER ENABLING STATUTES OF
THE TWO STATES AND WERE CONSUMMATED WITH APPROVAL OF CONSIDERABLY MORE
THAN THE NUMBER OF SHARES MADE NECESSARY BY STATUTES OF THE RESPECTIVE
STATES.  THE INTERSTATE COMMERCE COMMISSION FOUND, AND THERE IS NO
ATTACK UPON THE FINDINGS, THAT THE PUBLIC INTEREST IS SERVED BY MERGER
AND UNIFICATION OF THESE PROPERTIES AND OPERATIONS.  THE COMMISSION
ALSO CONCLUDED THAT THE PLAN AS A WHOLE, AND AS APPLIED TO EACH GROUP
OF SHAREHOLDERS, IS JUST AND REASONABLE, AND THERE IS NO ATTACK UPON
THIS CONCLUSION EXCEPT THAT BY THE APPELLANTS WHICH IS TREATED FULLY
HEREIN.  CONSEQUENTLY, DETAILS OF THE PLAN ARE OF LITTLE IMPORTANCE TO
THIS LITIGATION. 

APPELLANTS ARE OWNERS OF 2,100 SHARES OF $100 PAR 5% CUMULATIVE
PREFERRED STOCK OF PERE MARQUETTE.  THEIR INTERESTS AGGREGATE A LITTLE
LESS THAN 2% OF THE OUTSTANDING STOCK OF THIS CLASS.  DIVIDENDS ON THIS
STOCK HAVE BEEN UNPAID SINCE 1931 AND, AS OF THE COMMENCEMENT OF THIS
CONTROVERSY, WERE IN ARREARS IN THE SUM OF $72.50 PER SHARE, AN AMOUNT
THAT IS INCREASING WITH TIME.  THE PERE MARQUETTE CHARTER PROVIDES FOR
FULL PAYMENT OF THE STOCK AT PAR, PLUS ACCRUED UNPAID DIVIDENDS, "IN
THE EVENT OF DISSOLUTION, LIQUIDATION, OR WINDING UP OF THE COMPANY,
VOLUNTARY OR INVOLUNTARY  ...  BEFORE ANY AMOUNTS ARE PAID TO HOLDERS
OF THE  ...  COMMON STOCK."  THE APPELLANTS CONTEND THAT THE MERGER
HEREINAFTER DESCRIBED TERMINATES THE CORPORATE EXISTENCE AND, UNDER
THIS CLAUSE AS CONSTRUED BY MICHIGAN LAW, AMOUNTS TO A "WINDING UP." 
THEY INSIST THAT SINCE THE MERGER MAKES PROVISION FOR SOME COMPENSATION
TO COMMON STOCKHOLDERS THESE APPELLANTS HAVE THE RIGHT, UNDER MICHIGAN
LAW, TO HAVE THEIR SHARES RECOGNIZED ON THE BASIS OF AT LEAST $172.50
EACH.  THE COMMISSION FOUND THE MARKET VALUE PER SHARE RANGED, AT
DIFFERENT TIMES, FROM $87 TO $99, WHILE THE MERGER TERMS GIVE STOCKS IN
EXCHANGE WHICH WOULD HAVE REALIZED ABOUT $90 AND $111 PER SHARE ON THE
SAME DATES.  APPELLANTS DISSENTED FROM THE MERGER, BUT MICHIGAN LAW
PROVIDES NO SPECIFIC RIGHT OR PROCEDURE FOR APPRAISAL AND RETIREMENT OF
THE HOLDINGS OF A STOCKHOLDER DISSENTING FROM A RAILROAD MERGER. 

WHEN APPLICATION WAS FILED WITH THE INTERSTATE COMMERCE COMMISSION
UNDER SEC. 5 OF THE INTERSTATE COMMERCE ACT AS AMENDED (49 U.S.C. SEC.
5), FOR APPROVAL AND AUTHORIZATION OF THE MERGER,  FN1  AS WELL AS FOR
OTHER RELIEF, APPELLANTS INTERVENED AND ASKED THAT BODY TO DETERMINE,
RECOGNIZE AND PROTECT THEIR ASSERTED RIGHT TO THE FULL LEGAL
LIQUIDATION FIGURE.  THE COMMISSION APPROVED THE MERGER AND THE MERGER
TERMS, FINDING THEM JUST AND REASONABLE AS TO EACH CLASS OF
STOCKHOLDERS.  HOWEVER, IT DISCLAIMED JURISDICTION TO PASS UPON THE
FURTHER CLAIMS OF THE APPELLANTS ASSERTED ON THE BASIS OF THEIR
INTERPRETATION OF MICHIGAN LAW.  IT REVIEWED AT SOME LENGTH THE
ECONOMIC POSITION OF THE STOCK.  IT RECITED THAT THESE SHARES HAD
RECEIVED NO DIVIDENDS SINCE 1931 AND THAT APPELLANTS' WITNESSES AGREED
THAT THESE STOCKHOLDERS COULD NOT EXPECT TO RECEIVE ANY DIVIDENDS FOR
MANY YEARS, APART FROM THE MERGER.  THE COMMISSION ALSO POINTED OUT THE
DEFICIT IN OPERATIONS OF PERE MARQUETTE FOR THE FIRST QUARTER OF 1946
AS CONTRASTED WITH THE NET INCOME OF CHESAPEAKE AND OHIO, AND CONCLUDED
THAT "ON THE WHOLE, IT WOULD SEEM THAT THE PROSPECTS OF PERE MARQUETTE
STOCKHOLDERS FOR RETURNS ON THEIR INVESTMENTS WOULD BE ENHANCED BY
MERGER OF THEIR COMPANY INTO THE CHESAPEAKE & OHIO."  THE COMMISSION
DID NOT QUESTION THAT THE STOCKHOLDERS, ON LIQUIDATION, DISSOLUTION OR
WINDING UP OF PERE MARQUETTE, WOULD BE ENTITLED TO BE PAID IN FULL THE
PAR VALUE OF THEIR SHARES AND ACCUMULATED DIVIDENDS BEFORE ANY PAYMENT
TO HOLDERS OF COMMON STOCK.  IT DID NOT UNDERTAKE TO DETERMINE THE
ULTIMATE WORTH OF THESE STOCKS IN CASE OF AN ACTUAL LIQUIDATION, BUT IT
CONSIDERED THEIR PRESENT INTRINSIC VALUE ON A CAPITALIZED EARNINGS
BASIS, AN ACTUAL YIELD BASIS, AND ITS PRESENT MARKET POSITION AND
CONCLUDED:  "ACCORDINGLY, CONSIDERING PERE MARQUETTE'S INVESTMENT
ACCORDING TO ITS BOOKS, OTHER PROPERTY VALUES, THE COMPANY'S HISTORY AS
TO EARNINGS, ITS FUTURE PROSPECTS, AND THE MARKET APPRAISAL OF ITS
STOCKS, ALL AS SET FORTH ABOVE, WE FIND THAT, AS TO THE STOCKHOLDERS OF
BOTH PARTIES GENERALLY, THE PROPOSED RATIOS OF EXCHANGE, STOCK ISSUES,
AND ASSUMPTIONS OF INDEBTEDNESS ARE JUST AND REASONABLE." 

THE COMMISSION THEN NOTED THE CONTENTION OF THE APPELLANTS THAT AS TO
THEM THE TERMS WERE NOT JUST AND REASONABLE, BECAUSE THEY ARE DEPRIVED
OF CONTRACT RIGHTS UNDER MICHIGAN LAW, WHICH THEY HAVE NOT WAIVED.  IT
IS CONTENDED THAT THE COMMISSION SHOULD NOT REMIT THE DISSENTING
STOCKHOLDERS TO REMEDIES IN STATE COURTS AS THE COMMISSION WOULD
THEREBY DECLINE THE JURISDICTION CONFERRED BY SEC. 5 AND SEC. 20A OF
THE ACT.  FN2  BUT THE COMMISSION CONSIDERED THAT IT WAS ENTRUSTED WITH
AUTHORITY TO DECIDE THE PUBLIC INTEREST ASPECTS OF THE MERGER OF THESE
TRANSPORTATION FACILITIES AND THAT IT COULD NOT BE EXPECTED TO ENTER
INTO THE QUESTION OF "COMPENSATION OF DISSENTING STOCKHOLDERS ON
SPECIFIED BASES" BEFORE APPROVAL AND MERGER.  IT THOUGHT THAT, HAVING
FOUND THE TREATMENT OF EACH CLASS TO BE JUST AND REASONABLE, IT HAD
DONE ITS FULL DUTY "WHEN WE MAKE CERTAIN THAT ALL STOCKHOLDERS OF THE
SAME CLASS ARE TO BE TREATED ALIKE."  IT DECLINED TO DECIDE THE
MICHIGAN LAW QUESTION AS TO WHAT THE RIGHTS OF DISSENTING STOCKHOLDERS
WERE, AND WHETHER THE MERGER WAS EQUIVALENT TO A LIQUIDATION, BUT SAID:
"THIS DOES NOT MEAN THAT THE CHESAPEAKE & OHIO AND THE PERE MARQUETTE
DO NOT REMAIN FREE TO SETTLE CONTROVERSIES WITH DISSENTING STOCKHOLDERS
THROUGH NEGOTIATION AND LITIGATION IN THE COURTS." 

TAKING INTO ACCOUNT THE SMALL PERCENTAGE OF THE DISSENTING SHARES,
THE CURRENT ASSETS POSITION OF THE CHESAPEAKE & OHIO, AND THE MAXIMUM
POSSIBLE COST TO THE MERGED COMPANY OF THE SETTLEMENT OF THESE CLAIMS
ON THE BASIS MOST FAVORABLE TO APPELLANTS, IT CONSIDERED THAT THE
COMPANY WAS AMPLY ABLE TO BEAR "ANY PROBABLE EXPENDITURE OF CASH THAT
IT MIGHT BE REQUIRED TO MAKE IN CONNECTION WITH THE MERGER. 
ACCORDINGLY, IT APPEARS THAT CONSUMMATION OF THE MERGER WILL NOT
INVOLVE A BURDEN OF EXCESSIVE EXPENDITURE."  THE COMMISSION THUS LEFT
IN A STATE OF SUSPENSE, SUBJECT TO FURTHER LITIGATION OR NEGOTIATION,
THESE CLAIMS CONCERNING THE EXTENT OF THE CAPITAL OBLIGATIONS OF A
CONSTITUENT COMPANY, AFTER EXAMINING THEM SUFFICIENTLY TO DETERMINE
ONLY THAT, HOWEVER SETTLED, THEY DID NOT INVOLVE ENOUGH TO AFFECT THE
SOLVENCY OF THE NEW COMPANY OR JEOPARDIZE ITS OPERATIONS. 

THE COMMISSION DENIED APPELLANTS' PETITION FOR REHEARING AND THEY
FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF VIRGINIA TO SET ASIDE THE ORDER AUTHORIZING THE MERGER.  A COURT OF
THREE JUDGES, CONVENED AS REQUIRED BY LAW,  FN3  SUSTAINED THE
COMMISSION, 72 F.SUPP.  560.  APPELLANTS BRING TO US  FN4  THE QUESTION
WHETHER THE COMMISSION, IN VIEW OF ITS AUTHORITY OVER MERGERS, WHICH IS
DECLARED TO BE EXCLUSIVE AND PLENARY, COULD DECLINE TO DETERMINE JUST
WHAT THE DISSENTING STOCKHOLDERS' LEGAL RIGHTS WERE UNDER THE MICHIGAN
LAW AND THE PERE MARQUETTE CHARTER, AND TO RECOGNIZE THEM IN FULL BY
THE TERMS OF THE MERGER. 

THE DISPOSITION OF APPELLANTS' CLAIMS, AS WELL AS THE NATURE OF THE
CLAIMS THEMSELVES, REQUIRES CONSIDERATION OF THE RELATIVE FUNCTION AND
AUTHORITY OF FEDERAL AND STATE LAW IN REGULATING AND APPROVING
VOLUNTARY RAILROAD MERGERS.  THE APPELLANTS CONTEND THAT THEIR SHARE IN
THE MERGED COMPANY IS TO BE MEASURED BY, OR THEIR REMEDIES AS
DISSENTERS ARE TO BE FOUND IN, STATE LAW, BUT THAT THE FEDERAL AGENCY
IS BOUND TO DETERMINE AND APPLY THAT LAW.  THE COMMISSION ON THE OTHER
HAND REFUSES EITHER FINALLY TO FORECLOSE OR TO ALLOW THESE CLAIMS.  IT
APPARENTLY LEAVES IT OPEN TO THE STATE COURTS, OR TO THE PARTIES BY
NEGOTIATION, TO ADD TO THE SURVIVING CARRIER'S CAPITAL OBLIGATIONS,
WHICH THE COMMISSION HAS FOUND TO BE JUST AND REASONABLE, OTHERS
FOUNDED ONLY IN STATE LAW AND AS TO WHICH IT HAS MADE NO SUCH
FINDINGS.  WE CONCLUDE THAT NEITHER POSITION IS WHOLLY CONSISTENT WITH
THE FEDERAL STATUTORY PLAN FOR AUTHORIZATION AND APPROVAL OF MERGERS. 

IT IS NOT FOR US TO ADJUDICATE THE EXISTENCE OR THE MEASURE OF ANY
RIGHTS THAT MICHIGAN LAW MAY CONFER UPON DISSENTING STOCKHOLDERS. 
NEITHER THE COMMISSION NOR THIS COURT CAN MAKE A PLENARY AND EXCLUSIVE
DECISION AS TO WHAT THE LAW OF A STATE MAY BE, FOR THE FUNCTION OF
DECLARING AND INTERPRETING ITS OWN LAW IS LEFT TO EACH STATE OF THE
UNION.  BUT THE EFFECT OF THE STATE LAW IN RELATION TO A CONSTITUTIONAL
ACT OF CONGRESS, IN VIEW OF THE CONSTITUTIONAL PROVISION THAT THE
LATTER SHALL BE "THE SUPREME LAW OF THE LAND," "LAWS OF ANY STATE TO
THE CONTRARY NOTWITHSTANDING," IS FOR US TO DETERMINE.  OUR FIRST
INQUIRY HERE, THEREFORE, IS WHETHER THE INTERSTATE COMMERCE ACT ACCORDS
RECOGNITION TO THOSE STATE LAW RIGHTS, IF ANY EXIST.  TO DETERMINE THIS
FEDERAL QUESTION WE ASSUME, BUT DO NOT DECIDE, THAT MICHIGAN LAW WOULD
CONSIDER THIS MERGER TO BE A LIQUIDATION, AND WOULD REGARD THE
RECOGNITION GIVEN TO THE COMMON STOCK AS ENTITLING THESE DISSENTERS TO
"FULL PAYMENT" IN CASH OR ITS EQUIVALENT FOR BOTH THE PAR VALUE OF
THEIR PREFERRED SHARES AND ACCRUED UNPAID DIVIDENDS THEREON.  ASSUMING
SUCH TO BE THEIR RIGHTS UNDER THE LAW OF THE STATE, WE MUST DECIDE
WHETHER APPROVAL OF A RAILROAD MERGER UNDER THE TRANSPORTATION ACT OF
1940  FN5  IS CONDITIONED UPON OBSERVANCE OF SUCH STATE LAW RIGHTS OR
CAN BE MADE BY THE COMMISSION CONTINGENTLY SUBJECT TO THEM.  A RESUME
OF THE HISTORY OF THAT ACT THROWS LIGHT ON THE PROBLEM DEALT WITH BY
THAT LEGISLATION. 

THE BASIC RAILROAD FACILITIES OF THE UNITED STATES WERE CONSTRUCTED
UNDER STATE AUTHORIZATION AND RESTRICTIONS BY CORPORATIONS WHOSE POWERS
AND LIMITATIONS WERE PRESCRIBED BY STATE LEGISLATURES, OR RESULTED FROM
LIMITATIONS ON THE STATES THEMSELVES.  CONSTRUCTION IN REFERENCE
PRIMARILY TO LOCAL OR REGIONAL TRANSPORTATION NEEDS CREATED DUPLICATING
AND COMPETING FACILITIES IN SOME AREAS AND PROVIDED INADEQUATE ONES IN
OTHERS.  EXPANSION NECESSARY TO SERVE ADVANCING NATIONAL FRONTIERS WAS
STIMULATED BY EXTENSIVE SUBSIDIES FROM THE FEDERAL GOVERNMENT, LARGELY
IN THE FORM OF LAND GRANTS.  BUT THE STRESS AND STRAIN OF WORLD WAR I
BROUGHT HOME TO US THAT THE RAILROADS OF THE COUNTRY DID NOT FUNCTION
AS A REALLY NATIONAL SYSTEM OF TRANSPORTATION.  THAT CRISIS ALSO MADE
PLAIN THE CONFUSIONS, INEFFICIENCIES, INADEQUACIES AND DANGERS TO OUR
NATIONAL DEFENSE AND ECONOMY FLOWING FROM THE PATCHWORK RAILROAD
PATTERN THAT LOCAL INTERESTS UNDER LOCAL LAW HAD CREATED. 

THE DEMAND FOR AN INTEGRATED, EFFICIENT AND COORDINATED SYSTEM OF
RAIL TRANSPORT, EQUAL TO THE NEEDS OF OUR NATIONAL ECONOMY AND DEFENSE,
RESULTED IN THE TRANSPORTATION ACT OF 1920.  FN6  IN A SERIES OF
DECISIONS ON PARTICULAR PROBLEMS, THIS COURT DEFINED THE GENERAL
PURPOSES OF THAT ACT TO BE THE ESTABLISHMENT OF A NEW FEDERAL RAILWAY
POLICY N7 TO INSURE ADEQUATE TRANSPORTATION SERVICE BY MEANS OF
SECURING A FAIR RETURN ON CAPITAL DEVOTED TO THE SERVICE, RESTORATION
OF IMPAIRED RAILROAD CREDIT, AND REGULATION OF RATES, SECURITY ISSUES,
CONSOLIDATIONS AND MERGERS IN THE INTEREST OF THE PUBLIC.  THE TENOR OF
ALL OF THESE WAS TO CONFIRM THE POWER AND DUTY OF THE INTERSTATE
COMMERCE COMMISSION, REGARDLESS OF STATE LAW, TO CONTROL RATE AND
CAPITAL STRUCTURES, PHYSICAL MAKE-UP AND RELATIONS BETWEEN CARRIERS, IN
THE LIGHT OF THE PUBLIC INTEREST IN AN EFFICIENT NATIONAL
TRANSPORTATION SYSTEM.  RAILROAD COMMISSION OF WISCONSIN V. CHICAGO, B.
& Q.R. CO., 257 U.S. 563; NEW ENGLAND DIVISIONS CASE, 261 U.S. 184;
DAYTON-GOOSE CREEK R. CO. V. UNITED STATES, 263 U.S. 456; RAILROAD
COMMISSION OF CALIFORNIA V. SOUTHERN PACIFIC CO., 264 U.S. 331; TEXAS &
PACIFIC R. CO. V. GULF, COLORADO & SANTA FE R. CO., 270 U.S. 266.  FN8 

AS A MEANS TO THIS END, THE 1920 ACT REQUIRED  FN9  THE COMMISSION TO
PREPARE AND ADOPT A PLAN FOR NATION-WIDE CONSOLIDATIONS OF THE RAILWAY
PROPERTIES OF THE COUNTRY.  IT MADE THIS MASTER PLAN THE GOVERNING
CONSIDERATION IN APPROVING VOLUNTARY CONSOLIDATIONS OF RAILROADS WHICH
WERE PERMITTED ONLY IF IN HARMONY WITH AND IN FURTHERANCE OF THE
COMMISSION'S OVER-ALL PLANS.  FN10  IF THEY MET THAT TEST, CONGRESS
PROVIDED THAT MERGERS COULD BE CONSUMMATED NOTWITHSTANDING ANY
RESTRAINT OR PROHIBITION BY STATE AUTHORITY.  FN11    BY 1940 IT HAD
BECOME APPARENT THAT THE AMBITIOUS NATION-WIDE PLAN OF CONSOLIDATION
WAS NOT BEARING FRUIT.  VARIOUS STUDIES AND INVESTIGATIONS  FN12  LED
TO THE CONCLUSION THAT IT WAS A CASE WHERE THE BEST WAS AN ENEMY OF THE
GOOD, AND WAITING FOR THE PERFECT OFFICIAL PLAN WAS DEFEATING OR
POSTPONING LESS AMBITIOUS BUT MORE ATTAINABLE VOLUNTARY IMPROVEMENTS. 
THE TRANSPORTATION ACT OF 1940 RELIEVED THE COMMISSION OF FORMULATING A
NATION-WIDE PLAN OF CONSOLIDATIONS.  INSTEAD, IT AUTHORIZED APPROVAL BY
THE COMMISSION OF CARRIER-INITIATED, VOLUNTARY PLANS OF MERGER OR
CONSOLIDATION IF, SUBJECT TO SUCH TERMS, CONDITIONS AND MODIFICATIONS
AS THE COMMISSION MIGHT PRESCRIBE, THE PROPOSED TRANSACTIONS MET WITH
CERTAIN TESTS OF PUBLIC INTEREST, JUSTICE AND REASONABLENESS, IN WHICH
CASE THEY SHOULD BECOME EFFECTIVE REGARDLESS OF STATE AUTHORITY.  FN13
THE ACT DOES NOT SPECIFY EVERY CONSIDERATION TO WHICH THE COMMISSION
MUST GIVE WEIGHT IN DETERMINING WHETHER OR NOT ANY PLAN MEETS THE
TESTS.  SECTION 5(2) PROVIDES ONLY THAT, "AMONG OTHERS," THE COMMISSION
SHALL CONSIDER THE EFFECT UPON ADEQUATE TRANSPORTATION SERVICE, THE
EFFECT OF INCLUSION OR FAILURE TO INCLUDE OTHER RAILROADS, TOTAL FIXED
CHARGES, AND THE INTERESTS OF THE CARRIER EMPLOYEES AFFECTED.  THIS
COURT HAS RECENTLY AND UNANIMOUSLY SAID IN REFERENCE TO THIS ACT,
"CONGRESS HAS LONG MADE THE MAINTENANCE AND DEVELOPMENT OF AN
ECONOMICAL AND EFFICIENT RAILROAD SYSTEM A MATTER OF PRIMARY NATIONAL
CONCERN.  ITS LEGISLATION MUST BE READ WITH THIS PURPOSE IN MIND." 
SEABOARD AIR LINE R. CO. V. DANIEL, 333 U.S. 118.  FN14 

SO READING THE LEGISLATION RELEVANT TO THIS MERGER, WE FIND THAT
APPROVAL OF A VOLUNTARY RAILROAD MERGER WHICH IS WITHIN THE SCOPE OF
THE ACT IS DEPENDENT UPON THREE, AND UPON ONLY THREE, CONSIDERATIONS:
FIRST, A FINDING THAT IT "WILL BE CONSISTENT WITH THE PUBLIC
INTEREST."  (SEC. 5(2)(B).)  SECOND, A FINDING THAT, SUBJECT TO ANY
MODIFICATION MADE BY THE COMMISSION, IT IS "JUST AND REASONABLE." 
(SEC. 5(2)(B).)  THIRD, ASSENT OF A "MAJORITY, UNLESS A DIFFERENT VOTE
IS REQUIRED UNDER APPLICABLE STATE LAW, IN WHICH CASE THE NUMBER SO
REQUIRED SHALL ASSENT, OF THE VOTES OF THE HOLDERS OF THE SHARES
ENTITLED TO VOTE."  (SEC. 5(11).)  WHEN THESE CONDITIONS HAVE BEEN
COMPLIED WITH, THE COMMISSION-APPROVED TRANSACTION GOES INTO EFFECT
WITHOUT NEED FOR INVOKING ANY APPROVAL UNDER STATE AUTHORITY, AND THE
PARTIES ARE RELIEVED OF "RESTRAINTS, LIMITATIONS, AND PROHIBITIONS OF
LAW, FEDERAL, STATE, OR MUNICIPAL, INSOFAR AS MAY BE NECESSARY TO
ENABLE THEM TO CARRY INTO EFFECT THE TRANSACTION SO APPROVED OR
PROVIDED FOR IN ACCORDANCE WITH THE TERMS AND CONDITIONS, IF ANY,
IMPOSED BY THE COMMISSION, AND TO HOLD, MAINTAIN, AND OPERATE ANY
PROPERTIES AND EXERCISE ANY CONTROL OR FRANCHISES ACQUIRED THROUGH SUCH
TRANSACTION."  (SEC. 5(11).) 

THE COMMISSION, UNDER THIS ACT AS WELL AS THE ACT OF 1920, WAS ALSO
GIVEN COMPLETE CONTROL OF THE CAPITAL STRUCTURE TO RESULT FROM A
MERGER.  FN15  THE CARRIER, EVEN IF PERMITTED BY STATE LAW WHICH
CREATED IT, MAY ISSUE NO STOCK, BOND OR EVIDENCE OF INDEBTEDNESS
WITHOUT APPROVAL.  IT MAY ASSUME NO OBLIGATION IN RESPECT OF THE
SECURITIES OF ANOTHER PERSON OR CORPORATION EXCEPT WITH APPROVAL.  AND
THE APPROVAL IS TO BE GIVEN ONLY ON A FINDING THAT IT "(A) IS FOR SOME
LAWFUL OBJECT WITHIN ITS CORPORATE PURPOSES, AND COMPATIBLE WITH THE
PUBLIC INTEREST, WHICH IS NECESSARY OR APPROPRIATE FOR OR CONSISTENT
WITH THE PROPER PERFORMANCE BY THE CARRIER OF SERVICE TO THE PUBLIC AS
A COMMON CARRIER, AND WHICH WILL NOT IMPAIR ITS ABILITY TO PERFORM THAT
SERVICE, AND (B) IS REASONABLY NECESSARY AND APPROPRIATE FOR SUCH
PURPOSE."  49 U.S.C. SEC. 20A (2). 

THE JURISDICTION OF THE COMMISSION UNDER BOTH SEC. 5 AND SEC. 20A IS
MADE PLENARY AND EXCLUSIVE AND INDEPENDENT OF ALL OTHER STATE OR
FEDERAL AUTHORITY.  SEC. 5(11); FN16  SEC. 20A (7).  FN17 

THE COMMISSION, AS WE HAVE SEEN, HAS FOUND THAT THE LIABILITIES
ASSERTED BY APPELLANTS, IF SETTLED BY LITIGATION OR NEGOTIATION, WILL
NOT IMPAIR THE CARRIER'S ABILITY TO PERFORM ITS SERVICE, BUT IT HAS NOT
FOUND THE ASSUMPTION OF SUCH LIABILITIES TO BE COMPATIBLE WITH THE
PUBLIC INTEREST UNDER SEC. 5 AND SEC. 20A.  INDEED, SINCE THESE CLAIMS
EXCEED WHAT THE COMMISSION HAS FOUND TO BE JUST AND REASONABLE, IT
COULD HARDLY FIND THAT ASSUMPTION OF SUCH CLAIMS WOULD BE COMPATIBLE
WITH THE PUBLIC INTEREST. 

IT APPEARS TO US INCONSISTENT WITH THE INTERSTATE COMMERCE ACT  FN18
FOR THE COMMISSION TO LEAVE CLAIMS GROWING OUT OF THE CAPITAL STRUCTURE
OF ONE OF THE CONSTITUENT COMPANIES TO BE ADDED TO THE OBLIGATIONS OF
THE SURVIVING CARRIER, CONTINGENT UPON THE DECISION OF SOME OTHER
TRIBUNAL OR AGREEMENT OF THE PARTIES THEMSELVES.  WE THINK THAT THE
COMMISSION MUST PASS UPON AND APPROVE ALL CAPITAL LIABILITIES WHICH THE
MERGED COMPANY WILL ASSUME OR DISCHARGE AS A RESULT OF MERGER.  IF SOME
GREATER AMOUNT THAN THAT SPECIFIED IN THE AGREEMENT IS TO BE ALLOWED TO
ANY CLASS OF STOCKHOLDERS, IT MUST EITHER DEPLETE THE CASH OR INFLATE
THE LIABILITIES OR CAPITAL ISSUES OF THE NEW COMPANY.  IT MAY BE THAT
IN THIS CASE THE MERGED COMPANY WILL BE STRONG ENOUGH TO CARRY THIS
BURDEN AND STILL PERFORM ITS PUBLIC SERVICE.  BUT THAT IS NOT THE SOLE
PURPOSE OF THE SUPERVISION PROVIDED BY STATUTE.  IT IS ALSO IN THE
PUBLIC INTEREST THAT NO CAPITALIZATION OR INDEBTEDNESS BE CARRIED OVER
EXCEPT THAT WHICH MEETS THE TEST OF THE ACT IN ALL OTHER RESPECTS.  WE
THINK THE COMMISSION WAS IN ERROR IN ASSUMING THAT IT DID NOT HAVE, OR
WAS AT LIBERTY TO RENOUNCE OR DELEGATE, POWER FINALLY TO SETTLE THE
AMOUNT OF CAPITAL LIABILITIES OF THE NEW COMPANY AND THE PROPORTION OR
AMOUNT THEREOF WHICH EACH CLASS OF STOCKHOLDERS SHOULD RECEIVE ON
ACCOUNT OF ITS CONTRIBUTIONS TO THE NEW ENTITY. 

WE THINK IT IS EQUALLY CLEAR THAT THE COMMISSION MUST LOOK FOR
STANDARDS IN PASSING ON A VOLUNTARY MERGER ONLY TO THE INTERSTATE
COMMERCE ACT.  IN MATTERS WITHIN ITS SCOPE IT IS THE SUPREME LAW OF THE
LAND.  ITS PURPOSE TO BRING WITHIN ITS SCOPE EVERYTHING PERTAINING TO
THE CAPITAL STRUCTURES OF SUCH MERGERS COULD HARDLY BE MADE MORE
PLAIN.  INDEED, THE VERY FACT ON WHICH APPELLANTS RELY HEAVILY, THAT
THE COMMISSION'S JURISDICTION IS "PLENARY" AND "EXCLUSIVE," ARGUES WITH
EQUAL FORCE THAT FEDERAL LAW IS ALSO PLENARY AND EXCLUSIVE.  THE
COMMISSION LIKELY WOULD NOT AND PROBABLY COULD NOT BE GIVEN PLENARY AND
EXCLUSIVE JURISDICTION TO INTERPRET AND APPLY ANY STATE'S LAW. 
WHATEVER RIGHTS THE APPELLANTS ASK THE COMMISSION TO ASSURE MUST BE
FOUNDED ON FEDERAL, NOT ON STATE, LAW. 

APART FROM MEETING THE TEST OF THE PUBLIC INTEREST, THE MERGER TERMS,
AS TO STOCKHOLDERS, MUST BE FOUND TO BE JUST AND REASONABLE.  THESE
TERMS WOULD BE LARGELY MEANINGLESS TO THE STOCKHOLDERS IF THEIR
INTERESTS WERE ULTIMATELY TO BE SETTLED BY REFERENCE TO PROVISIONS OF
CORPORATE CHARTERS AND OF STATE LAWS.  SUCH CHARTERS AND LAWS USUALLY
HAVE BEEN DRAWN ON ASSUMPTIONS THAT TIME AND EXPERIENCE HAVE
UNSETTLED.  PUBLIC REGULATION IS NOT OBLIGED AND WE CANNOT LIGHTLY
ASSUME IT IS INTENDED TO RESTORE VALUES, EVEN IF PROMISED BY CHARTER
TERMS, IF THEY HAVE ALREADY BEEN LOST THROUGH THE OPERATION OF ECONOMIC
FORCES.  CF. MARKET STREET R. CO. V. COMMISSION, 324 U.S. 548.  IN
APPRAISING A STOCKHOLDER'S POSITION IN A MERGER AS TO JUSTICE AND
REASONABLENESS, IT IS NOT THE PROMISE THAT A CHARTER MADE TO HIM BUT
THE CURRENT WORTH OF THAT PROMISE THAT GOVERNS, IT IS NOT WHAT HE ONCE
PUT INTO A CONSTITUENT COMPANY BUT WHAT VALUE HE IS CONTRIBUTING TO THE
MERGER THAT IS TO BE MADE GOOD. 

IN CONSTRUING THE WORDS "FAIR AND EQUITABLE" IN A FEDERAL STATUTE OF
VERY SIMILAR PURPOSES, WE HAVE HELD THAT ALTHOUGH THE FULL PRIORITY
RULE APPLIES IN LIQUIDATION OF A SOLVENT HOLDING COMPANY PURSUANT TO A
FEDERAL STATUTE, THE PRIORITY IS SATISFIED BY GIVING EACH CLASS THE
FULL ECONOMIC EQUIVALENT OF WHAT THEY PRESENTLY HOLD, AND THAT, AS A
MATTER OF FEDERAL LAW, LIQUIDATION PREFERENCES PROVIDED BY THE CHARTER
DO NOT APPLY.  WE SAID THAT, ALTHOUGH THE COMPANY WAS IN FACT BEING
LIQUIDATED IN COMPLIANCE WITH AN ADMINISTRATIVE ORDER, THE RIGHTS OF
THE STOCKHOLDERS COULD BE VALUED "ON THE BASIS OF A GOING BUSINESS AND
NOT AS THOUGH A LIQUIDATION WERE TAKING PLACE."  CONSEQUENTLY THE
LIQUIDATION PREFERENCES WERE ONLY ONE FACTOR IN VALUATION RATHER THAN
DETERMINATIVE OF AMOUNTS PAYABLE.  OTIS & CO. V. SECURITIES & EXCHANGE
COMMISSION, 323 U.S. 624. 

THE APPELLANTS HERE, ALTHOUGH THE ENTERPRISE IS TO CONTINUE, INSIST
ON A VALUATION ACCORDING TO THE LETTER OF THE CHARTER.  BY THIS METHOD
THE LONGER THEIR STOCK IS IN DEFAULT OF DIVIDENDS OR EARNINGS, THE
GREATER INTEREST IT WOULD HAVE IN THE MERGED PROPERTIES IF THE COMMON
STOCK WAS TO BE RECOGNIZED AT ALL.  THE COMMISSION, HOWEVER, DID NOT
CONSIDER THAT A LONG-CONTINUED DEFAULT AND THE PROSPECT OF FURTHER
DEFAULT ADDED GREATLY TO THE PRESENT INTRINSIC OR MARKET VALUE OF THE
STOCK IN EXCHANGE.  ITS MEASURING ROD WAS AN ECONOMIC RATHER THAN A
LEGALISTIC ONE.  THE COMMISSION CONSIDERED THE STOCK'S PAST YIELD,
PRESENT MARKET VALUE, AND FUTURE PROSPECTS.  IT FOUND THAT, ALL THINGS
CONSIDERED, THE MERGER TERMS GAVE TO THESE APPELLANTS IN NEW STOCK THE
FAIR ECONOMIC EQUIVALENT OF WHAT THEY ALREADY HELD.  IT CONSIDERED THE
DEAL JUST AND REASONABLE ON AN EXCHANGE BASIS FOR A CONTINUING
ENTERPRISE.  BUT IT DID NOT UNDERTAKE TO SAY WHETHER, UNDER THE LETTER
OF THEIR CHARTER AS CONSTRUED UNDER THE LAW OF MICHIGAN, THE PREFERRED
STOCKHOLDERS MAY NOT HAVE A CONTRACT THAT WOULD EXACT MORE THAN AN
ECONOMIC EQUIVALENT. 

SINCE THE FEDERAL LAW CLEARLY CONTEMPLATES MERGER AS A STEP IN
CONTINUING THE ENTERPRISE, IT FOLLOWS THAT WHAT MICHIGAN LAW MIGHT GIVE
THESE DISSENTERS ON A WINDING-UP OR LIQUIDATION IS IRRELEVANT, EXCEPT
INSOFAR AS IT MAY BE REFLECTED IN CURRENT VALUES FOR WHICH THEY ARE
ENTITLED TO AN EQUIVALENT.  IT WOULD BE INCONSISTENT TO ALLOW STATE LAW
TO APPLY A LIQUIDATION BASIS TO WHAT FEDERAL LAW DESIGNATES AS A BASIS
FOR CONTINUED PUBLIC SERVICE.  FEDERAL LAW REQUIRES THAT MERGER TERMS
BE JUST AND REASONABLE TO ALL GROUPS OF STOCKHOLDERS, IN CONTEMPLATION
OF THE CONTINUED USE OF THEIR CAPITAL IN THE PUBLIC CALLING TO WHICH IT
HAS BEEN DEDICATED.  CONGRESS HAS MADE NO PROVISION BY WHICH MINORITY
STOCKHOLDERS, DISSATISFIED WITH A PROPOSED RAILROAD MERGER, MAY BLOCK
IT OR COMPEL RETIREMENT OF THEIR CAPITAL, AS STATUTES OFTEN PERMIT TO
BE DONE IN THE CASE OF PRIVATE CORPORATIONS WHERE THE PUBLIC INTEREST
IS NOT MUCH CONCERNED WITH ITS EFFECT ON THE ENTERPRISE.  AND SINCE
CONGRESS DEALT WITH THE SUBJECT OF STOCKHOLDERS' CONSENT, ITS FAILURE
TO PROVIDE FOR WITHDRAWAL OF NONCONSENTING CAPITAL CANNOT BE CONSIDERED
AN OVERSIGHT TO BE SUPPLIED BY US.  A PART OF THE CAPITAL DEDICATED TO
A RAILROAD ENTERPRISE CANNOT WITHDRAW ITSELF WITHOUT AUTHORIZATION ANY
MORE THAN ALL OF THE CAPITAL CAN WITHDRAW ITSELF AND ABANDON THE
RAILROAD WITHOUT APPROVAL.  IT MUST SUBMIT TO REGULATIONS AND TO
READJUSTMENTS IN THE PUBLIC INTEREST ON JUST AND REASONABLE TERMS. 

IN DETERMINING WHETHER EACH CLASS OF STOCKHOLDER RECEIVES AN
EQUIVALENT OF WHAT IT TURNS IN, THE COMMISSION, OF COURSE, IS UNDER A
DUTY TO SEE THAT MINORITY INTERESTS ARE PROTECTED, ESPECIALLY WHEN
THERE IS AN ABSENCE OF ARM'S LENGTH BARGAINING OR THE TERMS OF THE
MERGER HAVE BEEN IMPOSED BY MANAGEMENT INTERESTS ADVERSE TO ANY CLASS
OF STOCKHOLDERS.  THE COMMISSION INDICATES BOTH AWARENESS AND DISCHARGE
OF THIS DUTY IN THIS CASE.  ITS FINDING THAT THIS PLAN IS JUST AND
REASONABLE IS NOT CHALLENGED HERE EXCEPT ON THE BASIS OF MICHIGAN LAW. 
WHEN STOCKHOLDERS ARE GIVEN WHAT IT IS JUST AND REASONABLE THEY SHOULD
HAVE, THE INTERSTATE COMMERCE ACT DOES NOT PERMIT STATE LAW TO IMPOSE
GREATER OBLIGATIONS ON THE FINANCIAL STRUCTURE OF THE MERGING RAILROADS
WITH CONSEQUENT INCREASED CALLS UPON THEIR ASSETS OR EARNING CAPACITY. 

WE THEREFORE HOLD THAT NO RIGHTS ALLEGED TO HAVE BEEN GRANTED TO
DISSENTING STOCKHOLDERS BY STATE LAW PROVISION CONCERNING LIQUIDATION
SURVIVE THE MERGER AGREEMENT APPROVED BY THE REQUISITE NUMBER OF
STOCKHOLDERS AND APPROVED BY THE COMMISSION AS JUST AND REASONABLE. 
ANY SUCH RIGHTS ARE, AS A MATTER OF FEDERAL LAW, ACCORDED RECOGNITION
IN THE OBLIGATION OF THE COMMISSION NOT TO APPROVE ANY PLAN WHICH IS
NOT JUST AND REASONABLE.  IN MAKING THAT DETERMINATION, THOSE RIGHTS
ARE TO BE CONSIDERED TO THE EXTENT THAT THEY MAY AFFECT INTRINSIC OR
MARKET VALUES.  WHILE THE COMMISSION HAS FOUND THAT WHAT THE APPELLANTS
ARE GIVEN IN THIS PLAN IS JUST AND REASONABLE, THE RECORD INDICATES
THAT IT MAY HAVE DECLINED TO CONSIDER THESE CLAIMS, EVEN IF THEY ARE
FOUND TO HAVE SOME EFFECT ON THE INTRINSIC VALUE OF THE STOCK, BECAUSE
IT THOUGHT IT LACKED JURISDICTION.  UNDER THESE CIRCUMSTANCES, WE
CANNOT BE SURE THAT IN ARRIVING AT ITS CONCLUSION THAT THE PLAN WAS
JUST AND REASONABLE IT DID NOT EXCLUDE SOME FACTORS THAT IT SHOULD
CONSIDER UNDER THE VIEWS SET OUT IN THIS OPINION.  WE THEREFORE REVERSE
THE JUDGMENT BELOW AND REMAND THE CASE TO THE COMMISSION FOR
RECONSIDERATION UNDER THE PRINCIPLES HEREIN EXPRESSED.  REVERSED AND
REMANDED. 

FN1  SECTION 5 AS AMENDED PROVIDES IN PART AS FOLLOWS: 

"(2)(A)  IT SHALL BE LAWFUL, WITH THE APPROVAL AND AUTHORIZATION OF
THE COMMISSION, AS PROVIDED IN SUBDIVISION (B) - 

"(I)  FOR TWO OR MORE CARRIERS TO CONSOLIDATE OR MERGE THEIR
PROPERTIES OR FRANCHISES, OR ANY PART THEREOF, INTO ONE CORPORATION FOR
THE OWNERSHIP, MANAGEMENT, AND OPERATION OF THE PROPERTIES THERETOFORE
IN SEPARATE OWNERSHIP  ... 

"(B)  WHENEVER A TRANSACTION IS PROPOSED UNDER SUBPARAGRAPH (A), THE
CARRIER OR CARRIERS OR PERSONS SEEKING AUTHORITY THEREFOR SHALL PRESENT
AN APPLICATION TO THE COMMISSION, AND THEREUPON THE COMMISSION SHALL
NOTIFY THE GOVERNOR OF EACH STATE IN WHICH ANY PART OF THE PROPERTIES
OF THE CARRIERS INVOLVED IN THE PROPOSED TRANSACTION IS SITUATED, AND
ALSO SUCH CARRIERS AND THE APPLICANT OR APPLICANTS  ...  AND SHALL
AFFORD REASONABLE OPPORTUNITY FOR INTERESTED PARTIES TO BE HEARD.  ...
IF THE COMMISSION FINDS THAT, SUBJECT TO SUCH TERMS AND CONDITIONS AND
SUCH MODIFICATIONS AS IT SHALL FIND TO BE JUST AND REASONABLE, THE
PROPOSED TRANSACTION IS WITHIN THE SCOPE OF SUBPARAGRAPH (A) AND WILL
BE CONSISTENT WITH THE PUBLIC INTEREST, IT SHALL ENTER AN ORDER
APPROVING AND AUTHORIZING SUCH TRANSACTION, UPON THE TERMS AND
CONDITIONS, AND WITH THE MODIFICATIONS, SO FOUND TO BE JUST AND
REASONABLE  ... 

"(C)  IN PASSING UPON ANY PROPOSED TRANSACTION UNDER THE PROVISIONS
OF THIS PARAGRAPH (2), THE COMMISSION SHALL GIVE WEIGHT TO THE
FOLLOWING CONSIDERATIONS, AMONG OTHERS:  (1) THE EFFECT  ... UPON
ADEQUATE TRANSPORTATION SERVICE TO THE PUBLIC; (2) THE EFFECT UPON THE
PUBLIC INTEREST OF THE INCLUSION, OR FAILURE TO INCLUDE, OTHER
RAILROADS IN THE TERRITORY  ...  ; (3) THE TOTAL FIXED CHARGES
RESULTING FROM THE PROPOSED TRANSACTION; AND (4) THE INTEREST OF THE
CARRIER EMPLOYEES AFFECTED.  ... 

"(E)  NO TRANSACTION WHICH CONTEMPLATES A GUARANTY OR ASSUMPTION OF
PAYMENT OF DIVIDENDS OR OF FIXED CHARGES, SHALL BE APPROVED BY THE
COMMISSION UNDER THIS PARAGRAPH (2) EXCEPT UPON A SPECIFIC FINDING BY
THE COMMISSION THAT SUCH GUARANTY OR ASSUMPTION IS NOT INCONSISTENT
WITH THE PUBLIC INTEREST.  ... 

"(4)  IT SHALL BE UNLAWFUL FOR ANY PERSON, EXCEPT AS PROVIDED IN
PARAGRAPH (2), TO ENTER INTO ANY TRANSACTION WITHIN THE SCOPE OF
SUBPARAGRAPH (A) THEREOF  ... 

"(11)  THE AUTHORITY CONFERRED BY THIS SECTION SHALL BE EXCLUSIVE AND
PLENARY, AND ANY CARRIER OR CORPORATION PARTICIPATING IN OR RESULTING
FROM ANY TRANSACTION APPROVED BY THE COMMISSION THEREUNDER, SHALL HAVE
FULL POWER (WITH THE ASSENT, IN THE CASE OF A PURCHASE AND SALE, A
LEASE, A CORPORATE CONSOLIDATION, OR A CORPORATE MERGER, OF A MAJORITY,
UNLESS A DIFFERENT VOTE IS REQUIRED UNDER APPLICABLE STATE LAW, IN
WHICH CASE THE NUMBER SO REQUIRED SHALL ASSENT, OF THE VOTES OF THE
HOLDERS OF THE SHARES ENTITLED TO VOTE OF THE CAPITAL STOCK OF SUCH
CORPORATION AT A REGULAR MEETING OF SUCH STOCKHOLDERS, THE NOTICE OF
SUCH MEETING TO INCLUDE SUCH PURPOSE, OR AT A SPECIAL MEETING THEREOF
CALLED FOR SUCH PURPOSE) TO CARRY SUCH TRANSACTION INTO EFFECT AND TO
OWN AND OPERATE ANY PROPERTIES AND EXERCISE ANY CONTROL OR FRANCHISES
ACQUIRED THROUGH SAID TRANSACTION WITHOUT INVOKING ANY APPROVAL UNDER
STATE AUTHORITY; AND ANY CARRIERS OR OTHER CORPORATIONS, AND THEIR
OFFICERS AND EMPLOYEES AND ANY OTHER PERSONS, PARTICIPATING IN A
TRANSACTION APPROVED OR AUTHORIZED UNDER THE PROVISIONS OF THIS SECTION
SHALL BE AND THEY ARE HEREBY RELIEVED FROM THE OPERATION OF THE
ANTITRUST LAWS AND OF ALL OTHER RESTRAINTS, LIMITATIONS, AND
PROHIBITIONS OF LAW, FEDERAL, STATE, OR MUNICIPAL, INSOFAR AS MAY BE
NECESSARY TO ENABLE THEM TO CARRY INTO EFFECT THE TRANSACTION SO
APPROVED OR PROVIDED FOR IN ACCORDANCE WITH THE TERMS AND CONDITIONS,
IF ANY, IMPOSED BY THE COMMISSION, AND TO HOLD, MAINTAIN, AND OPERATE
ANY PROPERTIES AND EXERCISE ANY CONTROL OR FRANCHISES ACQUIRED THROUGH
SUCH TRANSACTION.  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO CREATE
OR PROVIDE FOR THE CREATION, DIRECTLY OR INDIRECTLY, OF A FEDERAL
CORPORATION, BUT ANY POWER GRANTED BY THIS SECTION TO ANY CARRIER OR
OTHER CORPORATION SHALL BE DEEMED TO BE IN ADDITION TO AND IN
MODIFICATION OF ITS POWERS UNDER ITS CORPORATE CHARTER OR UNDER THE
LAWS OF ANY STATE." 

FN2  FOR PERTINENT PROVISIONS OF SEC. 5 AND SEC. 20A SEE NOTES 1 AND
15 RESPECTIVELY. 

FN3  28 U.S.C. SEC. 47. 

FN4  28 U.S.C. SEC. 47(A); 28 U.S.C. SEC. 345. 

FN5  ACT OF SEPTEMBER 18, 1940, 54 STAT. 898. 

FN6  ACT OF FEBRUARY 28, 1920, 41 STAT. 456. 

FN7  "IT IS MANIFEST  ...  THAT THE ACT MADE A NEW DEPARTURE.  ...  "
CHIEF JUSTICE TAFT, IN RAILROAD COMMISSION OF WISCONSIN V. CHICAGO, B.
& Q.R. CO., 257 U.S. 563, 585. 

FN8  IN DAYTON-GOOSE CREEK R. CO. V. UNITED STATES, 263 U.S. 456,
478, IN REFERRING TO THE WISCONSIN CASE, 257 U.S. 563, AND THE NEW
ENGLAND DIVISIONS CASE, 261 U.S. 184, THE LATE CHIEF JUSTICE SAID:  "IN
BOTH CASES IT WAS POINTED OUT THAT THE TRANSPORTATION ACT ADDS A NEW
AND IMPORTANT OBJECT TO PREVIOUS INTERSTATE COMMERCE LEGISLATION, WHICH
WAS DESIGNED PRIMARILY TO PREVENT UNREASONABLE OR DISCRIMINATORY RATES
AGAINST PERSONS AND LOCALITIES.  THE NEW ACT SEEKS AFFIRMATIVELY TO
BUILD UP A SYSTEM OF RAILWAYS PREPARED TO HANDLE PROMPTLY ALL THE
INTERSTATE TRAFFIC OF THE COUNTRY.  IT AIMS TO GIVE THE OWNERS OF THE
RAILWAYS AN OPPORTUNITY TO EARN ENOUGH TO MAINTAIN THEIR PROPERTIES AND
EQUIPMENT IN SUCH A STATE OF EFFICIENCY THAT THEY CAN CARRY WELL THIS
BURDEN.  TO ACHIEVE THIS GREAT PURPOSE, IT PUTS THE RAILROAD SYSTEMS OF
THE COUNTRY MORE COMPLETELY THAN EVER UNDER THE FOSTERING GUARDIANSHIP
AND CONTROL OF THE COMMISSION, WHICH IS TO SUPERVISE THEIR ISSUE OF
SECURITIES, THEIR CAR SUPPLY AND DISTRIBUTION, THEIR JOINT USE OF
TERMINALS, THEIR CONSTRUCTION OF NEW LINES, THEIR ABANDONMENT OF OLD
LINES, AND BY A PROPER DIVISION OF JOINT RATES, AND BY FIXING ADEQUATE
RATES FOR INTERSTATE COMMERCE, AND IN CASE OF DISCRIMINATION, FOR
INTRASTATE COMMERCE, TO SECURE A FAIR RETURN UPON THE PROPERTIES OF THE
CARRIERS ENGAGED." 

FN9  SEC. 407(4). 

FN10  SEC. 407(6)(A). 

FN11  SEC. 407(8). 

FN12  SEE, FOR EXAMPLE, REPORT AND RECOMMENDATIONS BY THE PRESIDENT'S
COMMITTEE OF SIX, APPOINTED SEPTEMBER 20, 1938, WHOSE REPORT DATED
DECEMBER 23, 1938, IS CONSIDERED PART OF THE LEGISLATIVE HISTORY OF THE
TRANSPORTATION ACT OF 1940. 

FN13  SEE NOTE 1, SUPRA. 

FN14  THE ACT ITSELF INCLUDED A STATEMENT OF THE "NATIONAL
TRANSPORTATION POLICY" IN THESE TERMS:  "IT IS HEREBY DECLARED TO BE
THE NATIONAL TRANSPORTATION POLICY OF THE CONGRESS TO PROVIDE FOR FAIR
AND IMPARTIAL REGULATION OF ALL MODES OF TRANSPORTATION SUBJECT TO THE
PROVISIONS OF THIS ACT, SO ADMINISTERED AS TO RECOGNIZE AND PRESERVE
THE INHERENT ADVANTAGES OF EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL,
AND EFFICIENT SERVICE AND FOSTER SOUND ECONOMIC CONDITIONS IN
TRANSPORTATION AND AMONG THE SEVERAL CARRIERS; TO ENCOURAGE THE
ESTABLISHMENT AND MAINTENANCE OF REASONABLE CHARGES FOR TRANSPORTATION
SERVICES, WITHOUT UNJUST DISCRIMINATIONS, UNDUE PREFERENCES OR
ADVANTAGES, OR UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES; TO
COOPERATE WITH THE SEVERAL STATES AND THE DULY AUTHORIZED OFFICIALS
THEREOF; AND TO ENCOURAGE FAIR WAGES AND EQUITABLE WORKING CONDITIONS;
ALL TO THE END OF DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL
TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND RAIL, AS WELL AS OTHER
MEANS, ADEQUATE TO MEET THE NEEDS OF THE COMMERCE OF THE UNITED STATES,
OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE.  ALL OF THE
PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW
TO CARRYING OUT THE ABOVE DECLARATION OF POLICY." 

FN15  REPEATED RECOMMENDATIONS OF THE COMMISSION THAT THE FEDERAL
GOVERNMENT OCCUPY THE FIELD OF REGULATION OF RAILROAD SECURITY ISSUES
AND ASSUMPTION OF OBLIGATIONS WERE FOLLOWED IN 1920 BY ADDITION OF SEC.
20A TO THE INTERSTATE COMMERCE ACT (SEC. 439 OF THE TRANSPORTATION ACT
OF 1920, 41 STAT. 494). 

AS EARLY AS 1907 THE COMMISSION HAD STATED THAT "THE TIME HAS COME
WHEN SOME REASONABLE REGULATION SHOULD BE IMPOSED UPON THE ISSUANCE OF
SECURITIES BY RAILWAYS ENGAGED IN INTERSTATE COMMERCE."  12 I.C.C. 277,
306.  THIS RECOMMENDATION WAS RENEWED IN THE COMMISSION'S ANNUAL REPORT
FOR 1907, P. 24, AND IN EVERY SUCCEEDING ANNUAL REPORT UP TO AND
INCLUDING 1919.  THE COMMISSION INCORPORATED IN THE 1919 REPORT THE
STATEMENT CONCERNING RECOMMENDED LEGISLATION IT HAD SUBMITTED TO THE
SENATE INTERSTATE COMMERCE COMMITTEE, WHICH INCLUDED A RECOMMENDATION
FOR REGULATION OF SECURITY ISSUES. 

HOUSE REPORT NO. 456, 66TH CONG., 1ST SESS. (NOVEMBER 10, 1919), SAID
WITH RESPECT TO THE SECTION WHICH LATER BECAME SEC. 20A:  "  ...  THE
ENACTMENT OF THE PENDING BILL WILL PUT THE CONTROL OVER STOCK AND BOND
ISSUES EXCLUSIVELY IN THE HANDS OF THE FEDERAL GOVERNMENT AND WILL
RESULT IN UNIFORMITY AND GREATER PROMPTNESS OF ACTION." 

TRANSPORTATION ACT OF 1940 AND PROVIDES IN PART AS FOLLOWS: 

"(2)  ...  IT SHALL BE UNLAWFUL FOR ANY CARRIER TO ISSUE ANY SHARE OF
CAPITAL STOCK OR ANY BOND OR OTHER EVIDENCE OF INTEREST IN OR
INDEBTEDNESS OF THE CARRIER ...  OR TO ASSUME ANY OBLIGATION OR
LIABILITY AS LESSOR, LESSEE, GUARANTOR, INDORSER, SURETY, OR OTHERWISE,
IN RESPECT OF THE SECURITIES OF ANY OTHER PERSON, NATURAL OR
ARTIFICIAL, EVEN THOUGH PERMITTED BY THE AUTHORITY CREATING THE CARRIER
CORPORATION, UNLESS AND UNTIL, AND THEN ONLY TO THE EXTENT THAT, UPON
APPLICATION BY THE CARRIER, AND AFTER INVESTIGATION BY THE COMMISSION
OF THE PURPOSES AND USES OF THE PROPOSED ISSUE AND THE PROCEEDS
THEREOF, OR OF THE PROPOSED ASSUMPTION OF OBLIGATION OR LIABILITY IN
RESPECT OF THE SECURITIES OF ANY OTHER PERSON, NATURAL OR ARTIFICIAL,
THE COMMISSION BY ORDER AUTHORIZES SUCH ISSUE OR ASSUMPTION.  THE
COMMISSION SHALL MAKE SUCH ORDER ONLY IF IT FINDS THAT SUCH ISSUE OR
ASSUMPTION:  (A) IS FOR SOME LAWFUL OBJECT WITHIN ITS CORPORATE
PURPOSES, AND COMPATIBLE WITH THE PUBLIC INTEREST, WHICH IS NECESSARY
OR APPROPRIATE FOR OR CONSISTENT WITH THE PROPER PERFORMANCE BY THE
CARRIER OF SERVICE TO THE PUBLIC AS A COMMON CARRIER, AND WHICH WILL
NOT IMPAIR ITS ABILITY TO PERFORM THAT SERVICE, AND (B) IS REASONABLY
NECESSARY AND APPROPRIATE FOR SUCH PURPOSE.  ... 

"(6)  UPON RECEIPT OF ANY SUCH APPLICATION FOR AUTHORITY THE
COMMISSION SHALL CAUSE NOTICE THEREOF TO BE GIVEN TO AND A COPY FILED
WITH THE GOVERNOR OF EACH STATE IN WHICH THE APPLICANT CARRIER
OPERATES.  THE RAILROAD COMMISSIONS, PUBLIC SERVICE OR UTILITIES
COMMISSIONS, OR OTHER APPROPRIATE STATE AUTHORITIES OF THE STATE SHALL
HAVE THE RIGHT TO MAKE BEFORE THE COMMISSION SUCH REPRESENTATIONS AS
THEY MAY DEEM JUST AND PROPER FOR PRESERVING AND CONSERVING THE RIGHTS
AND INTERESTS OF THEIR PEOPLE AND THE STATES, RESPECTIVELY, INVOLVED IN
SUCH PROCEEDINGS.  THE COMMISSION MAY HOLD HEARINGS, IF IT SEES FIT, TO
ENABLE IT TO DETERMINE ITS DECISION UPON THE APPLICATION FOR
AUTHORITY. 

"(7)  THE JURISDICTION CONFERRED UPON THE COMMISSION BY THIS SECTION
SHALL BE EXCLUSIVE AND PLENARY, AND A CARRIER MAY ISSUE SECURITIES AND
ASSUME OBLIGATIONS OR LIABILITIES IN ACCORDANCE WITH THE PROVISIONS OF
THIS SECTION WITHOUT SECURING APPROVAL OTHER THAN AS SPECIFIED HEREIN. 
...  " 

FN16  FOR TEXT OF SEC. 5(11) SEE NOTE 1. 

FN17  FOR TEXT OF SEC. 20A (7) SEE NOTE 15. 

FN18  IN AN EARLY CASE (PITTSBURGH & W. VA. R. CO. V. INTERSTATE
COMMERCE COMMISSION, 54 APP. D.C. 34, 293 F. 1001, APPEAL DISMISSED 266
U.S. 640) IN WHICH THE CONSTITUTIONALITY OF SEC. 20A HAD BEEN UPHELD,
THE COURT SAID:  "IF 'A FAIR RETURN ON CAPITAL DEVOTED TO THE
TRANSPORTATION SERVICE' (NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 189)
WAS TO BE INSURED THE RAILWAY COMPANIES, AND AT THE SAME TIME PROPER
SERVICE AND EQUITABLE RATES ACCORDED THE PUBLIC, THE SUPERVISION OF THE
ISSUANCE OF STOCK, THE INCURRING OF BONDED INDEBTEDNESS, THE EXTENSION
AND CONSOLIDATION OF RAILWAY LINES, BECOMES OF THE UTMOST IMPORTANCE. 
WITHOUT THIS POWER TO SUPERVISE THE ISSUE OF STOCK AND BONDS, AND THUS
LIMIT THE DIVIDEND AND INTEREST OBLIGATIONS OF THE CARRIERS, AS WELL AS
THE EXPENDITURES IN EXTENSIONS AND IMPROVEMENTS, THE FIXING OF ADEQUATE
RATES TO INSURE A JUST RETURN TO THE CARRIER, AND AT THE SAME TIME
EQUITABLE PROTECTION TO THE PUBLIC, WOULD BE IMPOSSIBLE.   ...  " 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE RAILROADS OF THIS COUNTRY ARE OPERATED BY NOT LESS THAN 693
CORPORATIONS.  THESE EXIST BY VIRTUE OF CHARTERS GRANTED BY THE SEVERAL
STATES,  FN1  THE LAWS OF WHICH GOVERN THEIR INTERNAL AFFAIRS, AND,
MORE PARTICULARLY, THE RIGHTS AND LIABILITIES OF THEIR STOCKHOLDERS. 
THE CHESAPEAKE & OHIO IS CHARTERED BY VIRGINIA, THE PERE MARQUETTE BY
MICHIGAN.  THE LAWS OF VIRGINIA AND MICHIGAN RESPECTIVELY DETERMINE THE
CONDITIONS UNDER WHICH EACH MAY COMBINE WITH OTHER CORPORATIONS.  THE
VOTES OF SUFFICIENT STOCKHOLDERS OF THESE TWO CORPORATIONS TO SATISFY
THE LAWS OF THEIR RESPECTIVE STATES WERE IN FAVOR OF A VOLUNTARY
AGREEMENT FOR THE ABSORPTION OF THE PERE MARQUETTE BY THE CHESAPEAKE &
OHIO.  TO CONSUMMATE THIS AGREEMENT, HOWEVER, REQUIRED THE
AUTHORIZATION OF THE INTERSTATE COMMERCE COMMISSION UNDER THE TERMS OF
SEC. 5(2) OF THE INTERSTATE COMMERCE ACT, AS AMENDED BY THE
TRANSPORTATION ACT OF 1940.  THE AGREEMENT PROVIDED, IN SHORT, THAT THE
TOTAL OUTSTANDING SECURITIES OF THE PERE MARQUETTE, AMOUNTING TO
450,460 SHARES OF COMMON, 124,290 OF CUMULATIVE PREFERRED, AND 112,000
OF PRIOR PREFERENCE, WERE TO BE EXCHANGED FOR 211,429.4 SHARES OF
CHESAPEAKE & OHIO COMMON AND 312,272.2 PREFERRED.  ALL BUT 9% OF THE
SECURITY HOLDERS OF THE PERE MARQUETTE CUMULATIVE PREFERRED ASSENTED TO
THIS ARRANGEMENT.  THE APPELLANTS, HOLDING LESS THAN 2% OF THAT CLASS
OF STOCK, STOOD ON THEIR RIGHTS UNDER MICHIGAN LAW, CLAIMING THAT THEY
WERE ENTITLED TO THE DIVIDENDS UNPAID SINCE 1931, AMOUNTING TO $72.50
PER SHARE. 

THE INTERSTATE COMMERCE COMMISSION APPROVED THE PROPOSED MERGER BUT
REFUSED TO PASS ON THE LEGAL CLAIMS THUS ASSERTED UNDER MICHIGAN LAW BY
THE APPELLANTS.  THE COMMISSION RULED THAT IT WAS NOT CALLED UPON TO
PASS UPON INDIVIDUAL RIGHTS AGAINST A MERGED ROAD WHEN THE POTENTIAL
RECOGNITION OF SUCH RIGHTS, UNDER APPROPRIATE STATE LAW, COULD NOT
AFFECT THE PUBLIC INTEREST WHICH IT IS REQUISITE FOR THE COMMISSION TO
SAFEGUARD BEFORE AUTHORIZING A MERGER.  FOR THE COMMISSION HELD THAT,
EVEN IF THE APPELLANTS' CLAIMS WERE SUSTAINED BY MICHIGAN LAW, THE
AMOUNT INVOLVED WOULD IN NOWISE AFFECT EITHER THE SECURITY STRUCTURE OR
THE CASH POSITION OF THE CHESAPEAKE & OHIO.    THE CHESAPEAKE & OHIO IS
CAPITALIZED AT $191,433,919.  AN ADDITIONAL $28,949,745 OF STOCK IS TO
BE ISSUED, UNDER THE MERGER PLAN, FOR PERE MARQUETTE SHAREHOLDERS,
MAKING A TOTAL CAPITALIZATION FOR THE CHESAPEAKE & OHIO, AFTER MERGER,
OF $220,383,595.  THE APPELLANTS OWN 2,100 SHARES OF PERE MARQUETTE
CUMULATIVE PREFERRED.  THE MERGER AGREEMENT OFFERED THEM SECURITIES
FOUND BY THE COMMISSION TO BE WORTH $111.60 PER SHARE, OR $234,360.  IF
THEIR CLAIM FOR FULL BOOK VALUE OF $172.50 PER SHARE WERE HONORED, IT
WOULD AMOUNT TO $362,250.  THIS CONTINGENT LIABILITY OF $127,890, THE
COMMISSION CONCLUDED, DID NOT AFFECT ITS FINDING AS TO THE SOUNDNESS,
FROM THE POINT OF VIEW OF THE "PUBLIC INTEREST," OF THE FINANCIAL
STRUCTURE DEVISED AND APPROVED FOR THIS MERGER.  THE COMMISSION FURTHER
POINTED OUT THAT EVEN IF 2% OF EACH CLASS OF PERE MARQUETTE STOCK - THE
MAXIMUM NUMBER CONTEMPLATED BY THE AGREEMENT - WERE TO REFUSE TO
PARTICIPATE, THE DIFFERENCE BETWEEN THE VALUE OF THE CHESAPEAKE & OHIO
SHARES OFFERED TO THEM AND THE BOOK VALUE OF THEIR PERE MARQUETTE
SHARES COULD, IF REQUIRED, READILY BE ABSORBED BY A SOUNDLY BASED
QUARTER-BILLION-DOLLAR CARRIER. 

BOTH THE CHESAPEAKE & OHIO AND THE INTERSTATE COMMERCE COMMISSION
HERE URGE THIS VIEW OF THE LAW.  THE COURT, HOWEVER, READS THE
COMMISSION'S DUTY UNDER THE ACT QUITE DIFFERENTLY, ALTHOUGH IN REACHING
ITS CONCLUSION THE COMMISSION APPLIED ITS SETTLED ADMINISTRATIVE
PRACTICE. 

I THINK THAT THE COMMISSION WAS RIGHT IN THE VIEW IT TOOK OF ITS
POWERS AND DUTIES.  EVEN IF THE MATTER WERE DOUBTFUL, THE COURT DOES
NOT SEEM TO ME TO GIVE TO THE COMMISSION'S CONSTRUCTION OF THE ACT THE
WEIGHT TO BE ACCORDED ITS EXPERIENCED JUDGMENT, WHICH WE HELD IN UNITED
STATES V. AMERICAN TRUCKING ASSOCIATIONS, 310 U.S. 534, 549, TO BE
REQUIRED.  SINCE THE COMMISSION DISCLAIMS RATHER THAN ASSERTS A POWER,
THERE IS ALL THE MORE REASON TO FEEL ASSURED OF ITS DISINTERESTEDNESS
AND TO RESOLVE AMBIGUITY IN FAVOR OF ITS CHOICE OF CONSTRUCTION. 

UNTIL THE TRANSPORTATION ACT OF 1920, CARRIERS, WHILE SUBJECT TO THE
SHERMAN LAW, COULD COMBINE WITHOUT LEAVE OF THE INTERSTATE COMMERCE
COMMISSION.  SEE NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S.
197.  THE TRANSPORTATION ACT OF 1920 REQUIRED THE AUTHORIZATION OF THE
COMMISSION FOR ACQUISITION BY ONE CARRIER OF THE CONTROL OVER ANOTHER,
TO THE EXTENT DEFINED BY SEC. 5 OF THE INTERSTATE COMMERCE ACT, AS
AMENDED.  BY THE TRANSPORTATION ACT OF 1940, THE VOLUNTARY MERGER OF
THE PROPERTIES OF TWO OR MORE CARRIERS INTO ONE CORPORATION WAS
SANCTIONED, SUBJECT, HOWEVER, TO THE SCRUTINY OF THE INTERSTATE
COMMERCE COMMISSION FOR THE DUE PROTECTION OF THE "PUBLIC INTEREST." 
CONGRESS DEFINED WITH PARTICULARITY THE FACTORS THAT CONSTITUTED THE
"PUBLIC INTEREST" PUT INTO THE COMMISSION'S KEEPING. 

THE COURT NOW HOLDS THAT STATE LAW GOVERNING THE RELATIONS BETWEEN
STATE-CHARTERED CARRIERS AND THEIR STOCKHOLDERS IS IMPLIEDLY SUPPLANTED
AS TO THOSE WHO HAVE REFUSED TO ASSENT TO A MERGER, EVEN WHEN THE
COMMISSION FINDS THAT TO LEAVE THE ADJUDICATION OF THOSE RIGHTS TO THE
LAW THAT CREATED THEM IN NOWISE TOUCHES THE "PUBLIC INTEREST" THAT IS
THE SOLE CONDITION TO CARRYING OUT A WHOLLY VOLUNTARY ARRANGEMENT, AND
EVEN THOUGH SUCH A VOLUNTARY ARRANGEMENT BY ITSELF COULD NOT AFFECT THE
RIGHTS OF DISSENTERS.  I HAVE NO DOUBT THAT CONGRESS COULD COMPEL THE
UNIFICATION OF RAILROAD PROPERTIES THERETOFORE IN SEPARATE OWNERSHIP
AND IN SO DOING OVERRIDE STATE-CREATED LEGAL RIGHTS OF STOCKHOLDERS OF
THE CONSTITUENT CARRIERS.  IN THE CASE OF FINANCIALLY EMBARRASSED
CARRIERS, CONGRESS, IN THE EXERCISE OF ITS BANKRUPTCY POWERS, HAS
EMPOWERED THE INTERSTATE COMMERCE COMMISSION TO FORMULATE PLANS OF
REORGANIZATION, THE TERMS OF WHICH, IF FAIR AND EQUITABLE, MAY OVERRIDE
STATE-CREATED LEGAL RIGHTS OF STOCKHOLDERS WHO DO NOT ASSENT.  IN THE
INTERESTS OF A MORE EFFICIENT NATIONAL RAILROAD SYSTEM, CONGRESS MAY
ACCOMPLISH LIKE RESULTS UNDER THE COMMERCE CLAUSE.  BUT THAT IS
PRECISELY WHAT CONGRESS HAS REFUSED TO DO.  IT WAS BESOUGHT TO
ELIMINATE THE WASTE AND INEFFICIENCIES DUE TO THE CONGERIES OF
CORPORATE INSTRUMENTALITIES THROUGH WHICH THE RAILROADS OF THE UNITED
STATES OPERATE, BY PROVIDING FOR COMPULSORY CONSOLIDATIONS.  IT WAS
ALSO BESOUGHT TO DO AWAY WITH THE COMPLEXITIES AND CONFUSION RESULTING
FROM STATE CORPORATIONS CONDUCTING THE COUNTRY'S INTERSTATE RAILROAD
BUSINESS, BY REQUIRING FEDERAL INCORPORATION.  CONGRESS REJECTED BOTH
DEMANDS.  SEE H.R. REP. NO. 650, 66TH CONG., 2D SESS., PP. 63-64.  IT
LEFT MERGERS OF SEPARATE RAILROAD PROPERTIES INTO LARGER UNITS TO THE
WILL OF THEIR PRIVATE OWNERS, MERELY LODGING A VETO POWER IN THE
COMMISSION IF SUCH VOLUNTARY MERGERS RUN COUNTER TO THE DEFINED PUBLIC
INTEREST.  AND CONGRESS EXPLICITLY NEGATIVED THE POSSIBILITY OF
CONSTRUING SUCH SUPERVISION BY THE COMMISSION AS THE CREATION,
"DIRECTLY OR INDIRECTLY, OF A FEDERAL CORPORATION." 

THE COMMISSION WAS CHARGED WITH SEEING TO IT THAT THE VERY LIMITED
REQUIREMENTS OF SEC. 5(2) WERE OBSERVED, AND TO THAT END WAS GIVEN
"EXCLUSIVE AND PLENARY" AUTHORITY.  SEC. 5(11).  THE PURPOSE WAS TO
AUTHORIZE A VOLUNTARY ARRANGEMENT, TO SANCTION AN AGREEMENT, NOT TO
FORMULATE A PLAN AND TO COERCE ITS ADOPTION, AS IS TRUE OF SEC. 77. 
THE LAW SPECIFICALLY ENUMERATES THE REQUIREMENTS THAT CONSTITUTE THE
"PUBLIC INTEREST" WHICH THE VOLUNTARY AGREEMENT MUST SATISFY TO SECURE
THE COMMISSION'S APPROVAL.  THESE ARE:  THE EFFECT OF THE PROPOSAL ON
THE PUBLIC TRANSPORTATION SERVICE; THE EFFECT OF INCLUDING OR FAILING
TO INCLUDE OTHER RAILROADS IN THE PLAN; THE RESULTING FIXED CHARGES;
AND THE INTEREST OF THE CARRIER EMPLOYEES AFFECTED.  THESE FACTORS HAVE
NO BEARING ON WHETHER THE APPELLANTS' CLAIM SHOULD BE ALLOWED.  THE
GREAT DIFFERENCE BETWEEN THESE REQUIREMENTS AND THE DETAILED AND
COMPREHENSIVE PROVISIONS OF SEC. 77, 11 U.S.C. SEC. 205, CARRIES A
SHARP LEGAL CONTRAST BETWEEN THE AUTHORIZATION WHICH CONGRESS REQUIRED
FOR VOLUNTARY MERGERS AND THE COERCION OF AN IMPOSED PLAN OF
REORGANIZATION IN THE CASE OF INSOLVENT ROADS. 

APPROPRIATE ACCOMMODATION BETWEEN FEDERAL AND STATE INTERESTS IN THE
CONSTRUCTION OF THE INTERSTATE COMMERCE ACT IS NEEDLESSLY SACRIFICED BY
ADDING, TO THE DETAILED PROVISIONS WHEREBY THE COMMISSION IS MERELY
AUTHORIZED TO APPROVE VOLUNTARY MERGERS, AN IMPLIED ABROGATION OF STATE
LAW IN NO RESPECT INCONSISTENT WITH SUCH LIMITED POWER OF
AUTHORIZATION, SINCE THE COMMISSION FOUND THAT SURVIVAL OF A CLAIM
UNDER STATE LAW WOULD NOT IMPINGE UPON "THE PUBLIC INTEREST."  IT
IGNORES THE SALUTARY PRINCIPLE OF CONSTRUCTION, SO STRIKINGLY
ILLUSTRATED BY THE LOS ANGELES TERMINAL CASES FROM WHICH IT WAS DRAWN,
"THAT THE CONGRESS MAY CIRCUMSCRIBE ITS REGULATION AND OCCUPY A LIMITED
FIELD, AND THAT THE INTENTION TO SUPERSEDE THE EXERCISE BY THE STATE OF
ITS AUTHORITY AS TO MATTERS NOT COVERED BY THE FEDERAL LEGISLATION IS
NOT TO BE IMPLIED UNLESS THE ACT OF CONGRESS FAIRLY INTERPRETED IS IN
CONFLICT WITH THE LAW OF THE STATE."  ATCHISON, TOPEKA & SANTA FE. R.
CO. V. RAILROAD COMMISSION, 283 U.S. 380, 392-93.  SEE ALSO PALMER V.
MASSACHUSETTS, 308 U.S. 79. 

SINCE IT IS NEEDLESS, IT IS UNDESIRABLE TO DRAW AN IMPLICATION SO
DESTRUCTIVE OF STATE LAW FROM THE CONGRESSIONAL SCHEME FOR ALLOWING
VOLUNTARY MERGERS.  IN FACT, CONGRESS HAS MANIFESTED NOT AN INTENTION
TO ABROGATE STATE LAW WHERE THE COMMISSION FINDS NO COLLISION WITH THE
PUBLIC INTEREST; IT HAS MANIFESTED AN INTENTION NOT TO ABROGATE STATE
LAW UNLESS IT INTERFERES WITH CARRYING OUT AN APPROVED MERGER.  THUS,
IT MADE THE NECESSARY PROPORTION OF ASSENTING STOCKHOLDERS DEPENDENT ON
STATE LAW.  IT HARDLY SEEMS CONGRUOUS TO PROVIDE THAT STATE LAW SHOULD
DETERMINE WHEN THE OPPOSITION OF STOCKHOLDERS MAY PREVENT A VOLUNTARY
MERGER, BUT SHOULD HAVE NO EFFECT ON THE RIGHTS WHICH SUCH DISSENTERS
HAVE UNDER STATE LAW, EVEN WHERE THE INTERSTATE COMMERCE COMMISSION
FINDS NO NATIONAL INTEREST INVOLVED IN DETERMINING AND ENFORCING SUCH
RIGHTS.  AGAIN, WHILE SEC. 5(11) RELIEVES PARTIES TO AN APPROVED MERGER
FROM THE RESTRAINTS OF OTHER LAWS, "FEDERAL, STATE, OR MUNICIPAL," IT
DOES SO ONLY "INSOFAR AS MAY BE NECESSARY TO ENABLE THEM TO CARRY INTO
EFFECT THE TRANSACTION SO APPROVED OR PROVIDED FOR IN ACCORDANCE WITH
THE TERMS AND CONDITIONS, IF ANY, IMPOSED BY THE COMMISSION  ...  "
THIS PARAGRAPH FURTHER CONTAINS AN EXPRESSED DISCLAIMER OF
AUTHORIZATION OF FEDERAL INCORPORATION.  THE PROHIBITION OF FEDERAL
INCORPORATION SURELY IMPLIED A DESIRE TO RETAIN TO THE FULLEST POSSIBLE
EXTENT THE TIES BETWEEN THE STATES AND THEIR CHARTERED CORPORATIONS. 
ONE OF THE VITAL CONSEQUENCES OF INCORPORATION IN A GIVEN STATE IS THE
SUBJECTION OF THE RELATIONSHIP BETWEEN STOCKHOLDERS AND THEIR
CORPORATION TO THE LAW OF THAT STATE EXCEPT INSOFAR AS FEDERAL LAW
UNMISTAKABLY OVERRIDES IT. 

THE CONSIDERATIONS RELEVANT TO VOLUNTARY RAILROAD MERGERS SHARPLY
DIFFER FROM THOSE THAT CONTROL LIQUIDATIONS AND REORGANIZATIONS UNDER
SEC. 77 OF THE BANKRUPTCY ACT.  (SEE ALSO RAILROAD REORGANIZATION ACT
OF 1948, 62 STAT. 162.)  A RAILROAD IN REORGANIZATION IS ADMINISTERED
BY A BANKRUPTCY COURT WHICH HAS CONTROL OF ALL ITS ASSETS.  THE POWER
OF DEALING WITH ALL CLAIMS IS INEVITABLY CONCENTRATED IN THAT COURT. 
IN MERGER PROCEEDINGS, HOWEVER, THERE IS NO OBSTACLE TO THE PRACTICE
PURSUED BY THE COMMISSION OF DECIDING WHAT IS "JUST AND REASONABLE" AND
IN "THE PUBLIC INTEREST" AS TO EACH CLASS OF SECURITIES, WHILE AT THE
SAME TIME PERMITTING ANY DISSENTER TO STAND ON THE TERMS OF THE
PARTICULAR STOCK ISSUE, LEAVING TO STATE LAW TO DETERMINE WHAT THOSE
TERMS ARE, PROVIDED ONLY THAT THE FUNCTION OF THE NEW CORPORATION, AS
PART OF AN ECONOMIC AND EFFICIENT NATIONAL RAILROAD SYSTEM, WOULD NOT
BE AFFECTED BY ALLOWANCE OF SUCH CLAIMS.  THE COMMISSION HAS HERE RULED
THAT THE APPELLANTS ASSERT AN UNLIQUIDATED CLAIM AGAINST THE PERE
MARQUETTE SUFFICIENTLY NEGLIGIBLE NOT TO AFFECT THE FINANCIAL POSITION
OF ITS SUCCESSOR, EVEN IF IT BE ULTIMATELY ALLOWED IN FULL.  I FAIL TO
SEE THAT THE EFFECT ON THE CHESAPEAKE & OHIO WILL BE ANY DIFFERENT THAN
THAT OF NEGLIGENCE CLAIMS FOR THE SAME AMOUNT.  EVERY OPERATING
RAILROAD IS LIKELY TO HAVE SUCH CLAIMS OUTSTANDING AGAINST IT AT ALL
TIMES.  THEIR EXISTENCE DOES NOT INTERFERE WITH THE CONSUMMATION OF A
VOLUNTARY MERGER.  A REASONABLE AMOUNT OF CONTINGENT OBLIGATIONS MAY
EASILY BE ALLOWED FOR.  IN ANY EVENT, THE DETERMINATION WHETHER OR NOT
EVENTUAL LIABILITY FOR CONTINGENT CLAIMS OF DISSENTING STOCKHOLDERS ARE
SUCH AS TO AFFECT "THE PUBLIC INTEREST" REQUIRED TO BE PROTECTED BY
AUTHORIZATION OF A PROPOSED MERGER IS PRECISELY THE FUNCTION OF THE
INTERSTATE COMMERCE COMMISSION AND SHOULD APPROPRIATELY BE LEFT TO THE
EXERCISE OF ITS INFORMED DISCRETION. 

THE COMMISSION HAS CONTROL, UNDER SEC. 20A, OVER SECURITIES, WHICH OF
COURSE IT DOES NOT HAVE OVER A CONTINGENT DEMAND FOR COMPENSATION FOR
LOSS RESULTING FROM NEGLIGENCE.  BUT DIFFERENCES IN THE FOUNDATION OF
CONTINGENT CLAIMS DO NOT DETERMINE THEIR RELEVANCE TO THE COMMISSION'S
AUTHORITY IN APPROVING A MERGER AND IN LEAVING THE DETERMINATION OF
SUCH CLAIMS TO STATE LAW.  WHILE THE RIGHTS ASSERTED BY THE APPELLANTS
ARISE OUT OF THEIR HOLDING OF SECURITIES, THEY MAY BE PAID OFF IN CASH,
IF THEIR CLAIMS TURN OUT TO BE WELL FOUNDED, AND NEED NOT BE SATISFIED
OUT OF THE SECURITIES OF THE SUCCESSOR CORPORATION. 

NEITHER WHAT CONGRESS HAS WRITTEN, NOR WHAT IT HAS IMPLIED BY THE
PURPOSE UNDERLYING WHAT IT HAS WRITTEN, PERSUADES ME THAT A POWER WHICH
THE COMMISSION ITSELF HAS VIGOROUSLY DISCLAIMED IT MUST NOW EXERCISE. 
THE COMMISSION HAS CONSISTENTLY DECLINED TO ADJUDICATE AS A MATTER OF
STATE LAW - OR WHAT IS NOW FOUND TO BE FEDERAL LAW - CONTESTED CLAIMS
NOT DEEMED RELEVANT TO ITS DETERMINATION OF "THE PUBLIC INTEREST." 
E.G., SULLIVAN-PURCHASE-SERVICE FREIGHT LINE, INC., 38 M.C.C. 621;
JESSUP-CONTROL-SEFEWAY TRAILS, INC., 39 M.C.C. 233, 241; LEE-CONTROL;
CAROLINA M. EXP.  LINES, INC. - LEASE AND PURCHASE - REED, 40 M.C.C.
405, 407.  SEE ALSO NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES,
287 U.S. 12, 26-27; CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS R. CO.
V. UNITED STATES, 275 U.S. 404, 414. 

THE COURT IS HOLDING, IN ESSENCE, THAT WHILE STATE LAW GOVERNS THE
RIGHTS OF RAILROAD STOCKHOLDERS BEFORE AND AFTER VOLUNTARY MERGER
PROCEEDINGS IT IS SUPPLANTED DURING SUCH PROCEEDINGS.  IN THUS
THRUSTING UPON THE COMMISSION A JURISDICTION WHICH IT ITSELF HAS
REJECTED, THE COURT IS DEPRIVING THE STATES OF A MEASURE OF CONTROL
OVER THEIR OWN CORPORATIONS WHEN THIS IS NOT REQUIRED BY A FAIR READING
OF THE TRANSPORTATION ACT, AND ALTHOUGH THE SURVIVAL OF SUCH STATE LAW
DOES NOT INTERFERE WITH THE NATIONAL INTEREST AS FOUND BY THE AGENCY
SELECTED BY CONGRESS FOR DETERMINING THAT INTEREST. 

I WOULD AFFIRM THE JUDGMENT. 

FN1  ACCORDING TO THE ANNUAL REPORTS OF CLASS I AND CLASS II CARRIERS
ON FILE WITH THE INTERSTATE COMMERCE COMMISSION THERE IS AT PRESENT
ONLY ONE OPERATING CARRIER CHARTERED BY CONGRESS:  THE TEXAS AND
PACIFIC RAILWAY.  SEE THE ACT OF MARCH 3, 1871, 16 STAT. 573, AS
AMENDED BY THE ACT OF FEBRUARY 9, 1923, 42 STAT. 1223. 

THE CHIEF JUSTICE AND MR. JUSTICE BURTON JOIN IN THIS DISSENT. 
..END :













TRADE COMM'N V. CEMENT INSTITUTE, 333 U.S. 683 


ARGUED OCTOBER 20-21, 1947.  - DECIDED APRIL 26, 1948.  - 157 F.2D 533,
REVERSED. 


THE FEDERAL TRADE COMMISSION INSTITUTED A PROCEEDING BEFORE ITSELF
AGAINST AN UNINCORPORATED TRADE ASSOCIATION COMPOSED OF CORPORATIONS
WHICH MANUFACTURE, SELL AND DISTRIBUTE CEMENT; CORPORATE MEMBERS OF THE
ASSOCIATION; AND OFFICERS AND AGENTS OF THE ASSOCIATION.  THE COMPLAINT
CHARGED:  (1) THAT RESPONDENTS HAD ENGAGED IN AN UNFAIR METHOD OF
COMPETITION IN VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT
BY ACTING IN CONCERT TO RESTRAIN COMPETITION IN THE SALE AND
DISTRIBUTION OF CEMENT THROUGH USE OF A MULTIPLE BASING-POINT DELIVERED
PRICE SYSTEM, WHICH RESULTED IN THEIR QUOTING AND MAINTAINING IDENTICAL
PRICES AND TERMS OF SALE FOR CEMENT AT ANY GIVEN DESTINATION; AND (2)
THAT THIS SYSTEM OF SALES RESULTED IN PRICE DISCRIMINATIONS VIOLATIVE
OF SEC. 2 OF THE CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT. 
UPON A HEARING AND FINDINGS THE COMMISSION ORDERED RESPONDENTS TO CEASE
AND DESIST FROM ANY CONCERTED ACTION TO DO SPECIFIED THINGS, INCLUDING
USE OF THE MULTIPLE BASING-POINT DELIVERED-PRICE SYSTEM TO MAINTAIN
IDENTICAL PRICES FOR CEMENT.  HELD: 

1.  THE COMMISSION HAS JURISDICTION TO CONCLUDE THAT CONDUCT TENDING
TO RESTRAIN TRADE IS AN UNFAIR METHOD OF COMPETITION VIOLATIVE OF SEC.
5 OF THE FEDERAL TRADE COMMISSION ACT, EVEN THOUGH THE SELFSAME CONDUCT
MAY ALSO VIOLATE THE SHERMAN ACT.  PP. 689-693. 

2.  THE LEGISLATIVE HISTORY OF THE FEDERAL TRADE COMMISSION ACT SHOWS
THAT THE PURPOSE OF CONGRESS WAS NOT ONLY TO CONTINUE ENFORCEMENT OF
THE SHERMAN ACT BY THE DEPARTMENT OF JUSTICE AND THE FEDERAL COURTS BUT
ALSO TO SUPPLEMENT THAT ENFORCEMENT THROUGH THE ADMINISTRATIVE PROCESS
OF THE FEDERAL TRADE COMMISSION.  PP. 692-693. 

3.  THE FILING BY THE UNITED STATES OF A CIVIL ACTION IN A FEDERAL
DISTRICT COURT TO RESTRAIN THE RESPONDENTS AND OTHERS FROM VIOLATING
SEC. 1 OF THE SHERMAN ACT, THOUGH BASED LARGELY ON THE SAME ALLEGED
MISCONDUCT AS IN THE COMMISSION PROCEEDING, DOES NOT REQUIRE THAT THE
COMMISSION PROCEEDING BE DISMISSED.  PP. 693-695. 

4.  SINCE ALL OF THE RESPONDENTS WERE CHARGED WITH COMBINING TO
MAINTAIN A DELIVERED-PRICE SYSTEM IN ORDER TO ELIMINATE PRICE
COMPETITION IN INTERSTATE COMMERCE, SOME WHO SOLD CEMENT IN INTRASTATE
COMMERCE EXCLUSIVELY WERE NEVERTHELESS SUBJECT TO THE JURISDICTION AND
ORDER OF THE COMMISSION.  PP. 695-696. 

5.  THE COMMISSION WAS NOT DISQUALIFIED TO PASS UPON THE ISSUES
INVOLVED IN THIS PROCEEDING, EVEN ASSUMING THAT THE MEMBERS OF THE
COMMISSION, AS A RESULT OF ITS PRIOR EX PARTE INVESTIGATIONS, HAD
PREVIOUSLY FORMED THE OPINION THAT THE MULTIPLE BASING-POINT SYSTEM
OPERATED AS A PRICE-FIXING RESTRAINT OF TRADE VIOLATIVE OF THE SHERMAN
ACT.  PP. 700-703. 

6.  IT WAS NOT A DENIAL OF DUE PROCESS FOR THE COMMISSION TO ACT IN
THESE PROCEEDINGS AFTER HAVING EXPRESSED THE VIEW THAT INDUSTRY-WIDE
USE OF THE BASING-POINT SYSTEM WAS ILLEGAL.  TUMEY V. OHIO, 273 U.S.
510, DISTINGUISHED.  PP. 702-703. 

7.  ALTHOUGH THE ALLEGED COMBINATION BE TREATED AS HAVING HAD ITS
BEGINNING IN 1929, EVIDENCE OF RESPONDENTS' ACTIVITIES DURING YEARS
LONG PRIOR THERETO AND DURING THE NRA PERIOD WAS ADMISSIBLE FOR THE
PURPOSE OF SHOWING THE EXISTENCE OF A CONTINUING COMBINATION AMONG
RESPONDENTS TO UTILIZE THE BASING-POINT PRICING SYSTEM.  PP. 703-706. 

(A)  THE COMMISSION'S CONSIDERATION OF RESPONDENTS' PRE-1929 AND NRA
CODE ACTIVITIES WAS WITHIN THE RULE THAT TESTIMONY AS TO PRIOR OR
SUBSEQUENT TRANSACTIONS, WHICH FOR SOME REASON ARE BARRED FROM FORMING
THE BASIS FOR A SUIT, MAY NEVERTHELESS BE INTRODUCED IF IT TENDS
REASONABLY TO SHOW THE PURPOSE AND CHARACTER OF THE PARTICULAR
TRANSACTIONS UNDER SCRUTINY.  PP. 704-705. 

(B)  ADMINISTRATIVE AGENCIES SUCH AS THE COMMISSION ARE NOT
RESTRICTED BY RIGID RULES OF EVIDENCE.  PP. 705-706. 

(C)  A LETTER WRITTEN PRIOR TO THE FILING OF THE COMPLAINT BY ONE,
SINCE DECEASED, WHO WAS PRESIDENT OF A RESPONDENT COMPANY AND AN ACTIVE
TRUSTEE OF THE ASSOCIATION, IN WHICH HE STATED THAT FREE COMPETITION
WOULD BE RUINOUS TO THE CEMENT INDUSTRY, WAS ADMISSIBLE IN EVIDENCE
EVEN THOUGH THE STATEMENT MAY HAVE BEEN ONLY THE WRITER'S CONCLUSION. 
P. 706. 

8.  CEMENT MFRS.  PROTECTIVE ASSN. V. UNITED STATES, 268 U.S. 588, IS
NOT DECISIVE OF THE ISSUES IN THE PRESENT CASE.  PP. 706-709. 

9.  INDIVIDUAL CONDUCT OR CONCERTED ACTION MAY FALL SHORT OF
VIOLATING THE SHERMAN ACT AND YET CONSTITUTE AN "UNFAIR METHOD OF
COMPETITION" PROHIBITED BY THE FEDERAL TRADE COMMISSION ACT.  P. 708. 

10.  THE COMMISSION MADE ADEQUATE FINDINGS THAT RESPONDENTS
COLLECTIVELY MAINTAINED A MULTIPLE BASING-POINT DELIVERED-PRICE SYSTEM
FOR THE PURPOSE OF SUPPRESSING COMPETITION.  PP. 709-712. 

11.  THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THESE FINDINGS.  PP.
712-720. 

12.  MAINTENANCE BY CONCERTED ACTION OF THE BASING-POINT DELIVERED
PRICE SYSTEM EMPLOYED BY RESPONDENTS IS AN UNFAIR TRADE PRACTICE
PROHIBITED BY THE FEDERAL TRADE COMMISSION ACT.  PP. 720-721. 

13.  RESPONDENTS' MULTIPLE BASING-POINT DELIVERED-PRICE SYSTEM
RESULTED IN PRICE DISCRIMINATIONS BETWEEN PURCHASERS, IN VIOLATION OF
SEC. 2 OF THE CLAYTON ACT AS AMENDED BY THE ROBINSON-PATMAN ACT.  CORN
PRODUCTS CO. V. FEDERAL TRADE COMM'N, 324 U.S. 726; FEDERAL TRADE
COMM'N V. STALEY CO., 324 U.S. 746.  PP. 721-726. 

14.  THE DIFFERENCES IN RESPONDENTS' NET RETURNS FROM DIFFERENT SALES
IN DIFFERENT LOCALITIES, RESULTING FROM USE OF THE MULTIPLE BASING
POINT DELIVERED-PRICE SYSTEM, WERE NOT JUSTIFIABLE UNDER SEC. 2(B) OF
THE AMENDED CLAYTON ACT AS PRICE DISCRIMINATIONS "MADE IN GOOD FAITH TO
MEET AN EQUALLY LOW PRICE OF A COMPETITOR."  PP. 721-726. 

15.  THE OBJECTIONS TO THE FORM AND SUBSTANCE OF THE COMMISSION'S
ORDER ARE WITHOUT MERIT.  PP. 726-730. 

FEDERAL TRADE COMMISSION V. CEMENT INSTITUTE ET AL. 

NO. 23.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT* . 

*TOGETHER WITH NO. 24, FEDERAL TRADE COMM'N V. AETNA PORTLAND CEMENT
CO. ET AL.; NO. 25, FEDERAL TRADE COMM'N V. MARQUETTE CEMENT MFG. CO.;
NO. 26, FEDERAL TRADE COMM'N V. CALAVERAS CEMENT CO. ET AL.; NO. 27,
FEDERAL TRADE COMM'N V. HURON PORTLAND CEMENT CO.; NO. 28, FEDERAL
TRADE COMM'N V. SUPERIOR PORTLAND CEMENT, INC.; NO. 29, FEDERAL TRADE
COMM'N V. NORTHWESTERN PORTLAND CEMENT CO.; NO. 30, FEDERAL TRADE
COMM'N V. RIVERSIDE CEMENT CO.; NO. 31, FEDERAL TRADE COMM'N V.
UNIVERSAL ATLAS CEMENT CO.; NO. 32, FEDERAL TRADE COMM'N V. CALIFORNIA
PORTLAND CEMENT CO.; NO. 33, FEDERAL TRADE COMM'N V. MONOLITH PORTLAND
CEMENT CO. ET AL.; AND NO. 34, FEDERAL TRADE COMM'N V. SMITH ET AL.,
ALSO ON CERTIORARI TO THE SAME COURT. 

A CEASE-AND-DESIST ORDER ISSUED BY THE FEDERAL TRADE COMMISSION IN
PROCEEDINGS AGAINST RESPONDENTS UNDER THE FEDERAL TRADE COMMISSION ACT
AND THE AMENDED CLAYTON ACT WAS SET ASIDE BY THE CIRCUIT COURT OF
APPEALS.  157 F.2D 533.  THIS COURT GRANTED CERTIORARI.  330 U.S. 815
816.  REVERSED, P. 730. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO REVIEW THE DECREE OF THE CIRCUIT COURT OF
APPEALS WHICH, WITH ONE JUDGE DISSENTING, VACATED AND SET ASIDE A CEASE
AND DESIST ORDER ISSUED BY THE FEDERAL TRADE COMMISSION AGAINST THE
RESPONDENTS.  157 F.2D 533.  THOSE RESPONDENTS ARE:  THE CEMENT
INSTITUTE, AN UNINCORPORATED TRADE ASSOCIATION COMPOSED OF 74
CORPORATIONS  FN1  WHICH MANUFACTURE, SELL AND DISTRIBUTE CEMENT; THE
74 CORPORATE MEMBERS OF THE INSTITUTE; FN2  AND 21 INDIVIDUALS WHO ARE
ASSOCIATED WITH THE INSTITUTE.  IT TOOK THREE YEARS FOR A TRIAL
EXAMINER TO HEAR THE EVIDENCE WHICH CONSISTS OF ABOUT 49,000 PAGES OF
ORAL TESTIMONY AND 50,000 PAGES OF EXHIBITS.  EVEN THE FINDINGS AND
CONCLUSIONS OF THE COMMISSION COVER 176 PAGES.  THE BRIEFS WITH
ACCOMPANYING APPENDIXES SUBMITTED BY THE PARTIES CONTAIN MORE THAN
4,000 PAGES.  THE LEGAL QUESTIONS RAISED BY THE COMMISSION AND BY THE
DIFFERENT RESPONDENTS ARE MANY AND VARIED.  SOME CONTENTIONS ARE URGED
BY ALL RESPONDENTS AND CAN BE JOINTLY CONSIDERED.  OTHERS REQUIRE
SEPARATE TREATMENT.  IN ORDER TO KEEP OUR OPINION WITHIN REASONABLE
LIMITS, WE MUST RESTRICT OUR RECORD REFERENCES TO THE MINIMUM
CONSISTENT WITH AN ADEQUATE CONSIDERATION OF THE LEGAL QUESTIONS WE
DISCUSS. 

THE PROCEEDINGS WERE BEGUN BY A COMMISSION COMPLAINT OF TWO COUNTS. 
THE FIRST CHARGED THAT CERTAIN ALLEGED CONDUCT SET OUT AT LENGTH
CONSTITUTED AN UNFAIR METHOD OF COMPETITION IN VIOLATION OF SEC. 5 OF
THE FEDERAL TRADE COMMISSION ACT.  38 STAT. 719, 15 U.S.C. SEC. 45. 
THE CORE OF THE CHARGE WAS THAT THE RESPONDENTS HAD RESTRAINED AND
HINDERED COMPETITION IN THE SALE AND DISTRIBUTION OF CEMENT BY MEANS OF
A COMBINATION AMONG THEMSELVES MADE EFFECTIVE THROUGH MUTUAL
UNDERSTANDING OR AGREEMENT TO EMPLOY A MULTIPLE BASING POINT SYSTEM OF
PRICING.  IT WAS ALLEGED THAT THIS SYSTEM RESULTED IN THE QUOTATION OF
IDENTICAL TERMS OF SALE AND IDENTICAL PRICES FOR CEMENT BY THE
RESPONDENTS AT ANY GIVEN POINT IN THE UNITED STATES.  THIS SYSTEM HAD
WORKED SO SUCCESSFULLY, IT WAS FURTHER CHARGED, THAT FOR MANY YEARS
PRIOR TO THE FILING OF THE COMPLAINT, ALL CEMENT BUYERS THROUGHOUT THE
NATION, WITH RARE EXCEPTIONS, HAD BEEN UNABLE TO PURCHASE CEMENT FOR
DELIVERY IN ANY GIVEN LOCALITY FROM ANY ONE OF THE RESPONDENTS AT A
LOWER PRICE OR ON MORE FAVORABLE TERMS THAN FROM ANY OF THE OTHER
RESPONDENTS. 

THE SECOND COUNT OF THE COMPLAINT, RESTING CHIEFLY ON THE SAME
ALLEGATIONS OF FACT SET OUT IN COUNT I, CHARGED THAT THE MULTIPLE
BASING POINT SYSTEM OF SALES RESULTED IN SYSTEMATIC PRICE
DISCRIMINATIONS BETWEEN THE CUSTOMERS OF EACH RESPONDENT.  THESE
DISCRIMINATIONS WERE MADE, IT WAS ALLEGED, WITH THE PURPOSE OF
DESTROYING COMPETITION IN PRICE BETWEEN THE VARIOUS RESPONDENTS IN
VIOLATION OF SEC. 2 OF THE CLAYTON ACT, 38 STAT. 730, AS AMENDED BY THE
ROBINSON-PATMAN ACT, 49 STAT. 1526.  THAT SECTION, WITH CERTAIN
CONDITIONS WHICH NEED NOT HERE BE SET OUT, MAKES IT "UNLAWFUL FOR ANY
PERSON ENGAGED IN COMMERCE,  ...  EITHER DIRECTLY OR INDIRECTLY, TO
DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF
LIKE GRADE AND QUALITY  ...  "  15 U.S.C. SEC. 13. 

RESTING UPON ITS FINDINGS, THE COMMISSION ORDERED THAT RESPONDENTS
CEASE AND DESIST FROM "CARRYING OUT ANY PLANNED COMMON COURSE OF
ACTION, UNDERSTANDING, AGREEMENT, COMBINATION, OR CONSPIRACY" TO DO A
NUMBER OF THINGS, 37 F.T.C. 87, 258-262, ALL OF WHICH THINGS, THE
COMMISSION ARGUES, HAD TO BE RESTRAINED IN ORDER EFFECTIVELY TO RESTORE
INDIVIDUAL FREEDOM OF ACTION AMONG THE SEPARATE UNITS IN THE CEMENT
INDUSTRY.  CERTAIN CONTENTIONS WITH REFERENCE TO THE ORDER WILL LATER
REQUIRE A MORE DETAILED DISCUSSION OF ITS TERMS.  FOR THE PRESENT IT IS
SUFFICIENT TO SAY THAT, IF THE ORDER STANDS, ITS TERMS ARE BROAD ENOUGH
TO BAR RESPONDENTS FROM ACTING IN CONCERT TO SELL CEMENT ON A BASING
POINT DELIVERED PRICE PLAN WHICH SO ELIMINATES COMPETITION THAT
RESPONDENTS' PRICES ARE ALWAYS IDENTICAL AT ANY GIVEN POINT IN THE
UNITED STATES. 

WE SHALL NOT NOW DETAIL THE NUMEROUS CONTENTIONS URGED AGAINST THE
ORDER'S VALIDITY.  A STATEMENT OF THESE CONTENTIONS CAN BEST AWAIT THE
SEPARATE CONSIDERATION WE GIVE THEM. 

JURISDICTION. - AT THE VERY BEGINNING WE ARE MET WITH A CHALLENGE TO
THE COMMISSION'S JURISDICTION TO ENTERTAIN THE COMPLAINT AND TO ACT ON
IT.  THIS CONTENTION IS PRESSED BY RESPONDENT MARQUETTE CEMENT
MANUFACTURING CO. AND IS RELIED UPON BY OTHER RESPONDENTS.  COUNT I OF
THE COMPLAINT IS DRAWN UNDER THE PROVISION IN SEC. 5 OF THE FEDERAL
TRADE COMMISSION ACT WHICH DECLARES THAT "UNFAIR METHODS OF COMPETITION
...  ARE HEREBY DECLARED UNLAWFUL."  MARQUETTE CONTENDS THAT THE FACTS
ALLEGED IN COUNT I DO NOT CONSTITUTE "AN UNFAIR METHOD OF COMPETITION"
WITHIN THE MEANING OF SEC. 5.  ITS ARGUMENT RUNS THIS WAY:  COUNT I IN
REALITY CHARGES A COMBINATION TO RESTRAIN TRADE.  SUCH A COMBINATION
CONSTITUTES AN OFFENSE UNDER SEC. 1 OF THE SHERMAN ACT WHICH OUTLAWS
"EVERY  ...  COMBINATION  ...  IN RESTRAINT OF TRADE."  26 STAT. 209,
15 U.S.C. SEC. 1.  SECTION 4 OF THE SHERMAN ACT PROVIDES THAT THE
ATTORNEY GENERAL SHALL INSTITUTE SUITS UNDER THE ACT ON BEHALF OF THE
UNITED STATES, AND THAT THE FEDERAL DISTRICT COURTS SHALL HAVE
EXCLUSIVE JURISDICTION OF SUCH SUITS.  HENCE, CONTINUE RESPONDENTS, THE
COMMISSION, WHOSE JURISDICTION IS LIMITED TO "UNFAIR METHODS OF
COMPETITION," IS WITHOUT POWER TO INSTITUTE PROCEEDINGS OR TO ISSUE AN
ORDER WITH REGARD TO THE COMBINATION IN RESTRAINT OF TRADE CHARGED IN
COUNT I. MARQUETTE THEN ARGUES THAT SINCE THE FACT ALLEGATIONS OF COUNT
I ARE THE CHIEF RELIANCE FOR THE CHARGE IN COUNT II, THIS LATTER COUNT
ALSO MUST BE INTERPRETED AS CHARGING A VIOLATION OF THE SHERMAN ACT. 
ASSUMING, WITHOUT DECIDING, THAT THE CONDUCT CHARGED IN EACH COUNT
CONSTITUTES A VIOLATION OF THE SHERMAN ACT, WE HOLD THAT THE COMMISSION
DOES HAVE JURISDICTION TO CONCLUDE THAT SUCH CONDUCT MAY ALSO BE AN
UNFAIR METHOD OF COMPETITION AND HENCE CONSTITUTE A VIOLATION OF SEC. 5
OF THE FEDERAL TRADE COMMISSION ACT. 

AS EARLY AS 1920 THIS COURT CONSIDERED IT AN "UNFAIR METHOD OF
COMPETITION" TO ENGAGE IN PRACTICES "AGAINST PUBLIC POLICY BECAUSE OF
THEIR DANGEROUS TENDENCY UNDULY TO HINDER COMPETITION OR CREATE
MONOPOLY."  FEDERAL TRADE COMM'N V. GRATZ, 253 U.S. 421, 427.  IN 1922,
THE COURT IN FEDERAL TRADE COMM'N V. BEECH-NUT PACKING CO., 257 U.S.
441, SUSTAINED A CEASE AND DESIST ORDER AGAINST A RESALE PRICE
MAINTENANCE PLAN BECAUSE SUCH A PLAN "NECESSARILY CONSTITUTES A SCHEME
WHICH RESTRAINS THE NATURAL FLOW OF COMMERCE AND THE FREEDOM OF
COMPETITION IN THE CHANNELS OF INTERSTATE TRADE WHICH IT HAS BEEN THE
PURPOSE OF ALL THE ANTI-TRUST ACTS TO MAINTAIN."  ID. AT 454.  THE
COURT, IN HOLDING THAT THE SCHEME BEFORE IT CONSTITUTED AN UNFAIR
METHOD OF COMPETITION, NOTED THAT THE CONDUCT IN QUESTION WAS
PRACTICALLY IDENTICAL WITH THAT PREVIOUSLY DECLARED UNLAWFUL IN DR.
MILES MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373, AND UNITED STATES
V. SCHRADER'S SON, INC., 252 U.S. 85, THE LATTER A SUIT BROUGHT UNDER
SEC. 1 OF THE SHERMAN ACT.  AGAIN IN 1926 THIS COURT SUSTAINED A
COMMISSION UNFAIR-METHOD-OF-COMPETITION ORDER AGAINST DEFENDANTS WHO
HAD ENGAGED IN A PRICE-FIXING COMBINATION, A PLAIN VIOLATION OF SEC. 1
OF THE SHERMAN ACT.  FEDERAL TRADE COMM'N V. PACIFIC STATES PAPER TRADE
ASSN., 273 U.S. 52.  IN 1941 WE REITERATED THAT CERTAIN CONDUCT OF A
COMBINATION FOUND TO CONFLICT WITH THE POLICY OF THE SHERMAN ACT COULD
BE SUPPRESSED BY THE COMMISSION AS AN UNFAIR METHOD OF COMPETITION. 
FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N, 312 U.S. 457, 465. 
THE COMMISSION'S ORDER WAS SUSTAINED IN THE FASHION ORIGINATORS' CASE
NOT ONLY BECAUSE THE PROHIBITED CONDUCT VIOLATED THE CLAYTON ACT BUT
ALSO BECAUSE THE COMMISSION'S FINDINGS BROUGHT THE "COMBINATION IN ITS
ENTIRETY WELL WITHIN THE INHIBITION OF THE POLICIES DECLARED BY THE
SHERMAN ACT ITSELF."  IN OTHER CASES THIS COURT HAS POINTED OUT MANY
REASONS WHICH SUPPORT INTERPRETATION OF THE LANGUAGE "UNFAIR METHODS OF
COMPETITION" IN SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT AS INCLUDING
VIOLATIONS OF THE SHERMAN ACT.  FN3  THUS IT APPEARS THAT SOON AFTER
ITS CREATION THE COMMISSION BEGAN TO INTERPRET THE PROHIBITIONS OF SEC.
5 AS INCLUDING THOSE RESTRAINTS OF TRADE WHICH ALSO WERE OUTLAWED BY
THE SHERMAN ACT,  FN4  AND THAT THIS COURT HAS CONSISTENTLY APPROVED
THAT INTERPRETATION OF THE ACT. 

DESPITE THIS LONG AND CONSISTENT ADMINISTRATIVE AND JUDICIAL
CONSTRUCTION OF SEC. 5, WE ARE URGED TO HOLD THAT THESE PRIOR
INTERPRETATIONS WERE WRONG AND THAT THE TERM "UNFAIR METHODS OF
COMPETITION" SHOULD NOT BE CONSTRUED AS EMBRACING ANY CONDUCT WITHIN
THE AMBIT OF THE SHERMAN ACT.  IN SUPPORT OF THIS CONTENTION, MARQUETTE
CHIEFLY RELIES UPON ITS READING OF THE LEGISLATIVE HISTORY OF THE
COMMISSION ACT.  WE HAVE GIVEN CAREFUL CONSIDERATION TO THIS CONTENTION
BECAUSE OF THE EARNESTNESS WITH WHICH IT IS PRESSED.  MARQUETTE POINTS
TO PARTICULAR STATEMENTS OF SOME OF THE ACT'S SPONSORS WHICH, TAKEN OUT
OF THEIR CONTEXT, MIGHT LEND FAINT SUPPORT TO ITS CONTENTION THAT
CONGRESS DID NOT INTEND THE COMMISSION TO CONCERN ITSELF WITH CONDUCT
THEN PUNISHABLE UNDER THE SHERMAN ACT.  BUT ON THE WHOLE THE ACT'S
LEGISLATIVE HISTORY SHOWS A STRONG CONGRESSIONAL PURPOSE NOT ONLY TO
CONTINUE ENFORCEMENT OF THE SHERMAN ACT BY THE DEPARTMENT OF JUSTICE
AND THE FEDERAL DISTRICT COURTS BUT ALSO TO SUPPLEMENT THAT ENFORCEMENT
THROUGH THE ADMINISTRATIVE PROCESS OF THE NEW TRADE COMMISSION.  FAR
FROM BEING REGARDED AS A RIVAL OF THE JUSTICE DEPARTMENT AND THE
DISTRICT COURTS IN DISSOLVING COMBINATIONS IN RESTRAINT OF TRADE, THE
NEW COMMISSION WAS ENVISIONED AS AN AID TO THEM AND WAS SPECIFICALLY
AUTHORIZED TO ASSIST THEM IN THE DRAFTING OF APPROPRIATE DECREES IN
ANTITRUST LITIGATION.  FN5  ALL OF THE COMMITTEE REPORTS AND THE
STATEMENTS OF THOSE IN CHARGE OF THE TRADE COMMISSION ACT REVEAL AN
ABIDING PURPOSE TO VEST BOTH THE COMMISSION AND THE COURTS WITH
ADEQUATE POWERS TO HIT AT EVERY TRADE PRACTICE, THEN EXISTING OR
THEREAFTER CONTRIVED, WHICH RESTRAINED COMPETITION OR MIGHT LEAD TO
SUCH RESTRAINT IF NOT STOPPED IN ITS INCIPIENT STAGES.  THESE
CONGRESSIONAL PURPOSES ARE REVEALED IN THE LEGISLATIVE HISTORY CITED
BELOW, MOST OF WHICH IS REFERRED TO IN RESPONDENTS' BRIEFS.  FN6  WE
CAN CONCEIVE OF NO GREATER OBSTACLE THIS COURT COULD CREATE TO THE
FULFILLMENT OF THESE CONGRESSIONAL PURPOSES THAN TO INJECT INTO EVERY
TRADE COMMISSION PROCEEDING BROUGHT UNDER SEC. 5 AND INTO EVERY SHERMAN
ACT SUIT BROUGHT BY THE JUSTICE DEPARTMENT A POSSIBLE JURISDICTIONAL
QUESTION. 

WE ADHERE TO OUR FORMER RULINGS.  THE COMMISSION HAS JURISDICTION TO
DECLARE THAT CONDUCT TENDING TO RESTRAIN TRADE IS AN UNFAIR METHOD OF
COMPETITION EVEN THOUGH THE SELFSAME CONDUCT MAY ALSO VIOLATE THE
SHERMAN ACT. 

THERE IS A RELATED JURISDICTIONAL ARGUMENT PRESSED BY MARQUETTE WHICH
MAY BE DISPOSED OF AT THIS TIME.  WHILE REVIEW OF THE COMMISSION'S
ORDER WAS PENDING IN THE CIRCUIT COURT OF APPEALS, THE ATTORNEY GENERAL
FILED A CIVIL ACTION IN THE FEDERAL DISTRICT COURT FOR DENVER,
COLORADO, TO RESTRAIN THE CEMENT INSTITUTE, MARQUETTE AND 88 OTHER
CEMENT COMPANIES, INCLUDING ALL OF THE PRESENT RESPONDENTS, FROM
VIOLATING SEC. 1 OF THE SHERMAN ACT.  MUCH OF THE EVIDENCE BEFORE THE
COMMISSION IN THIS PROCEEDING MIGHT ALSO BE RELEVANT IN THAT CASE,
WHICH, WE ARE INFORMED, HAS NOT THUS FAR BEEN BROUGHT TO TRIAL. 
MARQUETTE URGES THAT THE COMMISSION PROCEEDING SHOULD NOW BE DISMISSED
BECAUSE IT IS CONTRARY TO THE PUBLIC INTEREST TO FORCE RESPONDENTS TO
DEFEND BOTH A COMMISSION PROCEEDING AND A SHERMAN ACT SUIT BASED
LARGELY ON THE SAME ALLEGED MISCONDUCT. 

WE FIND NOTHING TO JUSTIFY A HOLDING THAT THE FILING OF A SHERMAN ACT
SUIT BY THE ATTORNEY GENERAL REQUIRES THE TERMINATION OF THESE FEDERAL
TRADE COMMISSION PROCEEDINGS.  IN THE FIRST PLACE, ALTHOUGH ALL CONDUCT
VIOLATIVE OF THE SHERMAN ACT MAY LIKEWISE COME WITHIN THE UNFAIR TRADE
PRACTICE PROHIBITIONS OF THE TRADE COMMISSION ACT, THE CONVERSE IS NOT
NECESSARILY TRUE.  IT HAS LONG BEEN RECOGNIZED THAT THERE ARE MANY
UNFAIR METHODS OF COMPETITION THAT DO NOT ASSUME THE PROPORTIONS OF
SHERMAN ACT VIOLATIONS.  FEDERAL TRADE COMM'N V. R.F. KEPPEL & BRO.,
291 U.S. 304; FEDERAL TRADE COMM'N V. GRATZ, 253 U.S. 421, 427.  HENCE
A CONCLUSION THAT RESPONDENTS' CONDUCT CONSTITUTED AN UNFAIR METHOD OF
COMPETITION DOES NOT NECESSARILY MEAN THAT THEIR SAME ACTIVITIES WOULD
ALSO BE FOUND TO VIOLATE SEC. 1 OF THE SHERMAN ACT.  IN THE SECOND
PLACE, THE FACT THAT THE SAME CONDUCT MAY CONSTITUTE A VIOLATION OF
BOTH ACTS IN NOWISE REQUIRES US TO DISMISS THIS COMMISSION PROCEEDING. 
JUST AS THE SHERMAN ACT ITSELF PERMITS THE ATTORNEY GENERAL TO BRING
SIMULTANEOUS CIVIL AND CRIMINAL SUITS AGAINST A DEFENDANT BASED ON THE
SAME MISCONDUCT, SO THE SHERMAN ACT AND THE TRADE COMMISSION ACT
PROVIDE THE GOVERNMENT WITH CUMULATIVE REMEDIES AGAINST ACTIVITY
DETRIMENTAL TO COMPETITION.  BOTH THE LEGISLATIVE HISTORY OF THE TRADE
COMMISSION ACT AND ITS SPECIFIC LANGUAGE INDICATE A CONGRESSIONAL
PURPOSE, NOT TO CONFINE EACH OF THESE PROCEEDINGS WITHIN NARROW,
MUTUALLY EXCLUSIVE LIMITS, BUT RATHER TO PERMIT THE SIMULTANEOUS USE OF
BOTH TYPES OF PROCEEDINGS.  MARQUETTE'S OBJECTIONS TO THE COMMISSION'S
JURISDICTION ARE OVERRULED. 

OBJECTIONS TO COMMISSION'S JURISDICTION BY CERTAIN RESPONDENTS ON
GROUND THAT THEY WERE NOT ENGAGED IN INTERSTATE COMMERCE.  - ONE OTHER
CHALLENGE TO THE COMMISSION'S JURISDICTION IS SPECIALLY RAISED BY
NORTHWESTERN PORTLAND AND SUPERIOR PORTLAND.  THE COMMISSION FOUND THAT
"NORTHWESTERN PORTLAND MAKES NO SALES OR SHIPMENTS OUTSIDE THE STATE OF
WASHINGTON," AND THAT "SUPERIOR PORTLAND, WITH FEW EXCEPTIONS, MAKES
SALES AND SHIPMENTS OUTSIDE THE STATE OF WASHINGTON ONLY TO ALASKA." 
THESE TWO RESPONDENTS CONTEND THAT, SINCE THEY DID NOT ENGAGE IN
INTERSTATE COMMERCE AND SINCE SEC. 5 OF THE TRADE COMMISSION ACT
APPLIES ONLY TO UNFAIR METHODS OF COMPETITION IN INTERSTATE COMMERCE,
THE COMMISSION WAS WITHOUT JURISDICTION TO ENTER AN ORDER AGAINST THEM
UNDER COUNT I OF THE COMPLAINT.  FOR THIS CONTENTION THEY CHIEFLY RELY
ON FEDERAL TRADE COMM'N V. BUNTE BROS., 312 U.S. 349.  THEY ALSO ARGUE
THAT FOR THE SAME REASON THE COMMISSION LACKED JURISDICTION TO ENFORCE
AGAINST THEM THE PRICE DISCRIMINATION CHARGE IN COUNT II OF THE
COMPLAINT. 

WE CANNOT SUSTAIN THIS CONTENTION.  THE CHARGE AGAINST THESE
RESPONDENTS WAS NOT THAT THEY, APART FROM THE OTHER RESPONDENTS, HAD
ENGAGED IN UNFAIR METHODS OF COMPETITION AND PRICE DISCRIMINATIONS
SIMPLY BY MAKING INTRASTATE SALES.  INSTEAD, THE CHARGE WAS, AS
SUPPORTED BY THE COMMISSION'S FINDINGS, THAT THESE RESPONDENTS IN
COMBINATION WITH OTHERS AGREED TO MAINTAIN A DELIVERED PRICE SYSTEM IN
ORDER TO ELIMINATE PRICE COMPETITION IN THE SALE OF CEMENT IN
INTERSTATE COMMERCE.  THE COMBINATION, AS FOUND, INCLUDES THE INSTITUTE
AND CEMENT COMPANIES LOCATED IN MANY DIFFERENT STATES.  THE COMMISSION
HAS FURTHER FOUND THAT "IN GENERAL, SAID CORPORATE RESPONDENTS HAVE
MAINTAINED, AND NOW MAINTAIN, A CONSTANT COURSE OF TRADE AND COMMERCE
IN CEMENT AMONG AND BETWEEN THE SEVERAL STATES OF THE UNITED STATES." 
THE FACT THAT ONE OR TWO OF THE NUMEROUS PARTICIPANTS IN THE
COMBINATION HAPPEN TO BE SELLING ONLY WITHIN THE BORDERS OF A SINGLE
STATE IS NOT CONTROLLING IN DETERMINING THE SCOPE OF THE COMMISSION'S
JURISDICTION.  THE IMPORTANT FACTOR IS THAT THE CONCERTED ACTION OF ALL
OF THE PARTIES TO THE COMBINATION IS ESSENTIAL IN ORDER TO MAKE WHOLLY
EFFECTIVE THE RESTRAINT OF COMMERCE AMONG THE STATES.  FN7  THE
COMMISSION WOULD BE RENDERED HELPLESS TO STOP UNFAIR METHODS OF
COMPETITION IN THE FORM OF INTERSTATE COMBINATIONS AND CONSPIRACIES IF
ITS JURISDICTION COULD BE DEFEATED ON A MERE SHOWING THAT EACH
CONSPIRATOR HAD CAREFULLY CONFINED HIS ILLEGAL ACTIVITIES WITHIN THE
BORDERS OF A SINGLE STATE.  WE HOLD THAT THE COMMISSION DID HAVE
JURISDICTION TO MAKE AN ORDER AGAINST SUPERIOR PORTLAND AND
NORTHWESTERN PORTLAND. 

THE MULTIPLE BASING POINT DELIVERED PRICE SYSTEM.  - SINCE THE
MULTIPLE BASING POINT DELIVERED PRICE SYSTEM OF FIXING PRICES AND TERMS
OF CEMENT SALES IS THE NUB OF THIS CONTROVERSY, IT WILL BE HELPFUL AT
THIS PRELIMINARY STAGE TO POINT OUT IN GENERAL WHAT IT IS AND HOW IT
WORKS.  A BRIEF REFERENCE TO THE DISTINCTIVE CHARACTERISTICS OF
"FACTORY" OR "MILL PRICES" AND "DELIVERED PRICES" IS OF IMPORTANCE TO
AN UNDERSTANDING OF THE BASING POINT DELIVERED PRICE SYSTEM HERE
INVOLVED. 

GOODS MAY BE SOLD AND DELIVERED TO CUSTOMERS AT THE SELLER'S MILL OR
WAREHOUSE DOOR OR MAY BE SOLD FREE ON BOARD (F.O.B.)  TRUCKS OR
RAILROAD CARS IMMEDIATELY ADJACENT TO THE SELLER'S MILL OR WAREHOUSE. 
IN EITHER EVENT THE ACTUAL COST OF THE GOODS TO THE PURCHASER IS,
BROADLY SPEAKING, THE SELLER'S "MILL PRICE" PLUS THE PURCHASER'S COST
OF TRANSPORTATION.  HOWEVER, IF THE SELLER FIXES A PRICE AT WHICH HE
UNDERTAKES TO DELIVER GOODS TO THE PURCHASER WHERE THEY ARE TO BE USED,
THE COST TO THE PURCHASER IS THE "DELIVERED PRICE."  A SELLER WHO MAKES
THE "MILL PRICE" IDENTICAL FOR ALL PURCHASERS OF LIKE AMOUNT AND
QUALITY SIMPLY DELIVERS HIS GOODS AT THE SAME PLACE (HIS MILL) AND FOR
THE SAME PRICE (PRICE AT THE MILL).  HE THUS RECEIVES FOR ALL F.O.B.
MILL SALES AN IDENTICAL NET AMOUNT OF MONEY FOR LIKE GOODS FROM ALL
CUSTOMERS.  BUT A "DELIVERED PRICE" SYSTEM CREATES COMPLICATIONS WHICH
MAY RESULT IN A SELLER'S RECEIVING DIFFERENT NET RETURNS FROM THE SALE
OF LIKE GOODS.  THE COST OF TRANSPORTING 500 MILES IS ALMOST ALWAYS
MORE THAN THE COST OF TRANSPORTING 100 MILES.  CONSEQUENTLY IF
CUSTOMERS 100 AND 500 MILES AWAY PAY THE SAME "DELIVERED PRICE," THE
SELLER'S NET RETURN IS LESS FROM THE MORE DISTANT CUSTOMER.  THIS
DIFFERENCE IN THE PRODUCER'S NET RETURN FROM SALES TO CUSTOMERS IN
DIFFERENT LOCALITIES UNDER A "DELIVERED PRICE" SYSTEM IS AN IMPORTANT
ELEMENT IN THE CHARGE UNDER COUNT I OF THE COMPLAINT AND IS THE CRUX OF
COUNT II. 

THE BEST KNOWN EARLY EXAMPLE OF A BASING POINT PRICE SYSTEM WAS
CALLED "PITTSBURGH PLUS."  IT RELATED TO THE PRICE OF STEEL.  THE
PITTSBURGH PRICE WAS THE BASE PRICE, PITTSBURGH BEING THEREFORE CALLED
A PRICE BASING POINT.  IN ORDER FOR THE SYSTEM TO WORK, SALES HAD TO BE
MADE ONLY AT DELIVERED PRICES.  UNDER THIS SYSTEM THE DELIVERED PRICE
OF STEEL FROM ANYWHERE IN THE UNITED STATES TO A POINT OF DELIVERY
ANYWHERE IN THE UNITED STATES WAS IN GENERAL THE PITTSBURGH PRICE PLUS
THE RAILROAD FREIGHT RATE FROM PITTSBURGH TO THE POINT OF DELIVERY. 
FN8  TAKE CHICAGO, ILLINOIS, AS AN ILLUSTRATION OF THE OPERATION AND
CONSEQUENCES OF THE SYSTEM.  A CHICAGO STEEL PRODUCER WAS NOT FREE TO
SELL HIS STEEL AT COST PLUS A REASONABLE PROFIT.  HE MUST SELL IT AT
THE PITTSBURGH PRICE PLUS THE RAILROAD FREIGHT RATE FROM PITTSBURGH TO
THE POINT OF DELIVERY.  CHICAGO STEEL CUSTOMERS WERE BY THIS PRICING
PLAN THUS ARBITRARILY REQUIRED TO PAY FOR CHICAGO PRODUCED STEEL THE
PITTSBURGH BASE PRICE PLUS WHAT IT WOULD HAVE COST TO SHIP THE STEEL BY
RAIL FROM PITTSBURGH TO CHICAGO HAD IT BEEN SHIPPED.  THE THEORETICAL
COST OF THIS FICTITIOUS SHIPMENT BECAME KNOWN AS "PHANTOM FREIGHT." 
BUT HAD IT BEEN ECONOMICALLY POSSIBLE UNDER THIS PLAN FOR A CHICAGO
PRODUCER TO SHIP HIS STEEL TO PITTSBURGH, HIS "DELIVERED PRICE" WOULD
HAVE BEEN MERELY THE PITTSBURGH PRICE, ALTHOUGH HE ACTUALLY WOULD HAVE
BEEN REQUIRED TO PAY THE FREIGHT FROM CHICAGO TO PITTSBURGH.  THUS THE
"DELIVERED PRICE" UNDER THESE LATTER CIRCUMSTANCES REQUIRED A CHICAGO
(NON-BASING POINT) PRODUCER TO "ABSORB" FREIGHT COSTS.  THAT IS, SUCH A
SELLER'S NET RETURNS BECAME SMALLER AND SMALLER AS HIS DELIVERIES
APPROACHED CLOSER AND CLOSER TO THE BASING POINT. 

SEVERAL RESULTS OBVIOUSLY FLOW FROM USE OF A SINGLE BASING POINT
SYSTEM SUCH AS "PITTSBURGH PLUS" ORIGINALLY WAS.  ONE IS THAT THE
"DELIVERED PRICES" OF ALL PRODUCERS IN EVERY LOCALITY WHERE DELIVERIES
ARE MADE ARE ALWAYS THE SAME REGARDLESS OF THE PRODUCERS' DIFFERENT
FREIGHT COSTS.  ANOTHER IS THAT SALES MADE BY A NON-BASE MILL FOR
DELIVERY AT DIFFERENT LOCALITIES RESULT IN NET RECEIPTS TO THE SELLER
WHICH VARY IN AMOUNTS EQUIVALENT TO THE "PHANTOM FREIGHT" INCLUDED IN,
OR THE "FREIGHT ABSORPTION" TAKEN FROM THE "DELIVERED PRICE." 

AS COMMONLY EMPLOYED BY RESPONDENTS, THE BASING POINT SYSTEM IS NOT
SINGLE BUT MULTIPLE.  THAT IS, INSTEAD OF ONE BASING POINT, LIKE THAT
IN "PITTSBURGH PLUS," A NUMBER OF BASING POINT LOCALITIES ARE USED.  IN
THE MULTIPLE BASING POINT SYSTEM, JUST AS IN THE SINGLE BASING POINT
SYSTEM, FREIGHT ABSORPTION OR PHANTOM FREIGHT IS AN ELEMENT OF THE
DELIVERED PRICE ON ALL SALES NOT GOVERNED BY A BASING POINT ACTUALLY
LOCATED AT THE SELLER'S MILL.  FN9  AND ALL SELLERS QUOTE IDENTICAL
DELIVERED PRICES IN ANY GIVEN LOCALITY REGARDLESS OF THEIR DIFFERENT
COSTS OF PRODUCTION AND THEIR DIFFERENT FREIGHT EXPENSES.  THUS THE
MULTIPLE AND SINGLE SYSTEMS FUNCTION IN THE SAME GENERAL MANNER AND
PRODUCE THE SAME CONSEQUENCES - IDENTITY OF PRICES AND DIVERSITY OF NET
RETURNS.  FN10  SUCH DIFFERENCES AS THERE ARE IN MATTERS HERE PERTINENT
ARE THEREFORE DIFFERENCES OF DEGREE ONLY. 

ALLEGED BIAS OF THE COMMISSION.  - ONE YEAR AFTER THE TAKING OF
TESTIMONY HAD BEEN CONCLUDED AND WHILE THESE PROCEEDINGS WERE STILL
PENDING BEFORE THE COMMISSION, THE RESPONDENT MARQUETTE ASKED THE
COMMISSION TO DISQUALIFY ITSELF FROM PASSING UPON THE ISSUES INVOLVED. 
MARQUETTE CHARGED THAT THE COMMISSION HAD PREVIOUSLY PREJUDGED THE
ISSUES, WAS "PREJUDICED AND BIASED AGAINST THE PORTLAND CEMENT INDUSTRY
GENERALLY," AND THAT THE INDUSTRY AND MARQUETTE IN PARTICULAR COULD NOT
RECEIVE A FAIR HEARING FROM THE COMMISSION.  AFTER HEARING ORAL
ARGUMENT THE COMMISSION REFUSED TO DISQUALIFY ITSELF.  THIS CONTENTION,
REPEATED HERE, WAS ALSO URGED AND REJECTED IN THE CIRCUIT COURT OF
APPEALS ONE YEAR BEFORE THAT COURT REVIEWED THE MERITS OF THE
COMMISSION'S ORDER.  MARQUETTE CEMENT MFG. CO. V. FEDERAL TRADE COMM'N,
147 F.2D 589. 

MARQUETTE INTRODUCED NUMEROUS EXHIBITS INTENDED TO SUPPORT ITS
CHARGES.  IN THE MAIN THESE EXHIBITS WERE COPIES OF THE COMMISSION'S
REPORTS MADE TO CONGRESS OR TO THE PRESIDENT, AS REQUIRED BY SEC. 6 OF
THE TRADE COMMISSION ACT.  15 U.S.C. SEC. 46.  THESE REPORTS, AS WELL
AS THE TESTIMONY GIVEN BY MEMBERS OF THE COMMISSION BEFORE
CONGRESSIONAL COMMITTEES, MAKE IT CLEAR THAT LONG BEFORE THE FILING OF
THIS COMPLAINT THE MEMBERS OF THE COMMISSION AT THAT TIME, OR AT LEAST
SOME OF THEM, WERE OF THE OPINION THAT THE OPERATION OF THE MULTIPLE
BASING POINT SYSTEM AS THEY HAD STUDIED IT WAS THE EQUIVALENT OF A
PRICE FIXING RESTRAINT OF TRADE IN VIOLATION OF THE SHERMAN ACT.  WE
THEREFORE DECIDE THIS CONTENTION, AS DID THE CIRCUIT COURT OF APPEALS,
ON THE ASSUMPTION THAT SUCH AN OPINION HAD BEEN FORMED BY THE ENTIRE
MEMBERSHIP OF THE COMMISSION AS A RESULT OF ITS PRIOR OFFICIAL
INVESTIGATIONS.  BUT WE ALSO AGREE WITH THAT COURT'S HOLDING THAT THIS
BELIEF DID NOT DISQUALIFY THE COMMISSION. 

IN THE FIRST PLACE, THE FACT THAT THE COMMISSION HAD ENTERTAINED SUCH
VIEWS AS THE RESULT OF ITS PRIOR EX PARTE INVESTIGATIONS DID NOT
NECESSARILY MEAN THAT THE MINDS OF ITS MEMBERS WERE IRREVOCABLY CLOSED
ON THE SUBJECT OF THE RESPONDENTS' BASING POINT PRACTICES.  HERE, IN
CONTRAST TO THE COMMISSION'S INVESTIGATIONS, MEMBERS OF THE CEMENT
INDUSTRY WERE LEGALLY AUTHORIZED PARTICIPANTS IN THE HEARINGS.  THEY
PRODUCED EVIDENCE - VOLUMES OF IT.  THEY WERE FREE TO POINT OUT TO THE
COMMISSION BY TESTIMONY, BY CROSS-EXAMINATION OF WITNESSES, AND BY
ARGUMENTS, CONDITIONS OF THE TRADE PRACTICES UNDER ATTACK WHICH THEY
THOUGHT KEPT THESE PRACTICES WITHIN THE RANGE OF LEGALLY PERMISSIBLE
BUSINESS ACTIVITIES. 

MOREOVER, MARQUETTE'S POSITION, IF SUSTAINED, WOULD TO A LARGE EXTENT
DEFEAT THE CONGRESSIONAL PURPOSES WHICH PROMPTED PASSAGE OF THE TRADE
COMMISSION ACT.  HAD THE ENTIRE MEMBERSHIP OF THE COMMISSION
DISQUALIFIED IN THE PROCEEDINGS AGAINST THESE RESPONDENTS, THIS
COMPLAINT COULD NOT HAVE BEEN ACTED UPON BY THE COMMISSION OR BY ANY
OTHER GOVERNMENT AGENCY.  CONGRESS HAS PROVIDED FOR NO SUCH
CONTINGENCY.  IT HAS NOT DIRECTED THAT THE COMMISSION DISQUALIFY ITSELF
UNDER ANY CIRCUMSTANCES, HAS NOT PROVIDED FOR SUBSTITUTE COMMISSIONERS
SHOULD ANY OF ITS MEMBERS DISQUALIFY, AND HAS NOT AUTHORIZED ANY OTHER
GOVERNMENT AGENCY TO HOLD HEARINGS, MAKE FINDINGS, AND ISSUE CEASE AND
DESIST ORDERS IN PROCEEDINGS AGAINST UNFAIR TRADE PRACTICES.  FN11  YET
IF MARQUETTE IS RIGHT, THE COMMISSION, BY MAKING STUDIES AND FILING
REPORTS IN OBEDIENCE TO CONGRESSIONAL COMMAND, COMPLETELY IMMUNIZED THE
PRACTICES INVESTIGATED, EVEN THOUGH THEY ARE "UNFAIR," FROM ANY CEASE
AND DESIST ORDER BY THE COMMISSION OR ANY OTHER GOVERNMENTAL AGENCY. 

THERE IS NO WARRANT IN THE ACT FOR REACHING A CONCLUSION WHICH WOULD
THUS FRUSTRATE ITS PURPOSES.  IF THE COMMISSION'S OPINIONS EXPRESSED IN
CONGRESSIONALLY REQUIRED REPORTS WOULD BAR ITS MEMBERS FROM ACTING IN
UNFAIR TRADE PROCEEDINGS, IT WOULD APPEAR THAT OPINIONS EXPRESSED IN
THE FIRST BASING POINT UNFAIR TRADE PROCEEDING WOULD SIMILARLY
DISQUALIFY THEM FROM EVER PASSING ON ANOTHER.  SEE MORGAN V. UNITED
STATES, 313 U.S. 409, 421.  THUS EXPERIENCE ACQUIRED FROM THEIR WORK AS
COMMISSIONERS WOULD BE A HANDICAP INSTEAD OF AN ADVANTAGE.  SUCH WAS
NOT THE INTENDMENT OF CONGRESS.  FOR CONGRESS ACTED ON A COMMITTEE
REPORT STATING:  "IT IS MANIFESTLY DESIRABLE THAT THE TERMS OF THE
COMMISSIONERS SHALL BE LONG ENOUGH TO GIVE THEM AN OPPORTUNITY TO
ACQUIRE THE EXPERTNESS IN DEALING WITH THESE SPECIAL QUESTIONS
CONCERNING INDUSTRY THAT COMES FROM EXPERIENCE."  REPORT OF COMMITTEE
ON INTERSTATE COMMERCE, NO. 597, JUNE 13, 1914, 63D CONG., 2D SESS. 10
11. 

MARQUETTE ALSO SEEMS TO ARGUE THAT IT WAS A DENIAL OF DUE PROCESS FOR
THE COMMISSION TO ACT IN THESE PROCEEDINGS AFTER HAVING EXPRESSED THE
VIEW THAT INDUSTRY-WIDE USE OF THE BASING POINT SYSTEM WAS ILLEGAL.  A
NUMBER OF CASES ARE CITED AS GIVING SUPPORT TO THIS CONTENTION.  TUMEY
V. OHIO, 273 U.S. 510, IS AMONG THEM.  BUT IT PROVIDES NO SUPPORT FOR
THE CONTENTION.  IN THAT CASE TUMEY HAD BEEN CONVICTED OF A CRIMINAL
OFFENSE, FINED, AND COMMITTED TO JAIL BY A JUDGE WHO HAD A DIRECT,
PERSONAL, SUBSTANTIAL, PECUNIARY INTEREST IN REACHING HIS CONCLUSION TO
CONVICT.  A CRIMINAL CONVICTION BY SUCH A TRIBUNAL WAS HELD TO VIOLATE
PROCEDURAL DUE PROCESS.  BUT THE COURT THERE POINTED OUT THAT MOST
MATTERS RELATING TO JUDICIAL DISQUALIFICATION DID NOT RISE TO A
CONSTITUTIONAL LEVEL.  ID. AT 523.    NEITHER THE TUMEY DECISION NOR
ANY OTHER DECISION OF THIS COURT WOULD REQUIRE US TO HOLD THAT IT WOULD
BE A VIOLATION OF PROCEDURAL DUE PROCESS FOR A JUDGE TO SIT IN A CASE
AFTER HE HAD EXPRESSED AN OPINION AS TO WHETHER CERTAIN TYPES OF
CONDUCT WERE PROHIBITED BY LAW.  IN FACT, JUDGES FREQUENTLY TRY THE
SAME CASE MORE THAN ONCE AND DECIDE IDENTICAL ISSUES EACH TIME,
ALTHOUGH THESE ISSUES INVOLVE QUESTIONS BOTH OF LAW AND FACT. 
CERTAINLY, THE FEDERAL TRADE COMMISSION CANNOT POSSIBLY BE UNDER
STRONGER CONSTITUTIONAL COMPULSIONS IN THIS RESPECT THAN A COURT. 
FN12 

THE COMMISSION PROPERLY REFUSED TO DISQUALIFY ITSELF.  WE THUS NEED
NOT REVIEW THE ADDITIONAL HOLDING OF THE CIRCUIT COURT OF APPEALS THAT
MARQUETTE'S OBJECTION ON THE GROUND OF THE ALLEGED BIAS OF THE
COMMISSION WAS FILED TOO LATE IN THE PROCEEDINGS BEFORE THAT AGENCY TO
WARRANT CONSIDERATION. 

ALLEGED ERRORS IN RE INTRODUCTION OF EVIDENCE.  - THE COMPLAINT
BEFORE THE COMMISSION, FILED JULY 2, 1937, ALLEGED THAT RESPONDENTS HAD
MAINTAINED AN ILLEGAL COMBINATION FOR "MORE THAN 8 YEARS LAST PAST." 
IN THE CIRCUIT COURT OF APPEALS AND IN THIS COURT THE GOVERNMENT
TREATED ITS CASE ON THE BASIS THAT THE COMBINATION BEGAN IN AUGUST,
1929, WHEN THE RESPONDENT CEMENT INSTITUTE WAS ORGANIZED.  THE
GOVERNMENT INTRODUCED MUCH EVIDENCE OVER RESPONDENTS' OBJECTIONS,
HOWEVER, WHICH SHOWED THE ACTIVITIES OF THE CEMENT INDUSTRY FOR MANY
YEARS PRIOR TO 1929, SOME OF IT AS FAR BACK AS 1902.  IT ALSO
INTRODUCED EVIDENCE AS TO RESPONDENTS' ACTIVITIES FROM 1933 TO MAY 27,
1935, MUCH OF WHICH RELATED TO THE PREPARATION AND ADMINISTRATION OF
THE NRA CODE FOR THE CEMENT INDUSTRY PURSUANT TO THE NATIONAL
INDUSTRIAL RECOVERY ACT, 48 STAT. 195, HELD INVALID BY THIS COURT MAY
27, 1935, IN SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495. 
ALL OF THE TESTIMONY TO WHICH OBJECTION WAS MADE RELATED TO THE
INITIATION, DEVELOPMENT, AND CARRYING ON OF THE BASING POINT
PRACTICES. 

RESPONDENTS CONTEND THAT THE PRE-1929 EVIDENCE, ESPECIALLY THAT PRIOR
TO 1919, IS PATENTLY INADMISSIBLE WITH REFERENCE TO A 1929 COMBINATION,
MANY OF WHOSE ALLEGED MEMBERS WERE NON-EXISTENT IN 1919.  THEY ALSO
URGE THAT EVIDENCE OF ACTIVITIES DURING THE NRA PERIOD WAS IMPROPERLY
ADMITTED BECAUSE SEC. 5 OF TITLE I OF THE NRA PROVIDED THAT ANY ACTION
TAKEN IN COMPLIANCE WITH THE CODE PROVISIONS OF AN INDUSTRY SHOULD BE
"EXEMPT FROM THE PROVISIONS OF THE ANTITRUST LAWS OF THE UNITED
STATES."  AND SOME OF THE NRA PERIOD TESTIMONY RELATING TO BASING POINT
PRACTICES DID INVOLVE REFERENCES TO CODE PROVISIONS.  THE GOVERNMENT
CONTENDS THAT EVIDENCE OF BOTH THE PRE-1929 AND THE NRA PERIOD
ACTIVITIES OF MEMBERS OF THE CEMENT INDUSTRY TENDS TO SHOW A CONTINUOUS
COURSE OF CONCERTED EFFORTS ON THE PART OF THE INDUSTRY, OR AT LEAST
MOST OF IT, TO UTILIZE THE BASING POINT SYSTEM AS A MEANS TO FIX
UNIFORM TERMS AND PRICES AT WHICH CEMENT WOULD BE SOLD, AND THAT THE
COMMISSION HAD PROPERLY SO REGARDED THIS EVIDENCE.  THE CIRCUIT COURT
OF APPEALS AGREED WITH RESPONDENTS THAT THE COMMISSION HAD ERRONEOUSLY
CONSIDERED BOTH THE NRA PERIOD EVIDENCE AND THE PRE-1929 EVIDENCE IN
MAKING ITS FINDINGS OF THE EXISTENCE OF A COMBINATION AMONG
RESPONDENTS. 

WE CONCLUDE THAT BOTH TYPES OF EVIDENCE WERE ADMISSIBLE FOR THE
PURPOSE OF SHOWING THE EXISTENCE OF A CONTINUING COMBINATION AMONG
RESPONDENTS TO UTILIZE THE BASING POINT PRICING SYSTEM.  FN13 

THE COMMISSION DID NOT MAKE ITS FINDINGS OF POST-1929 COMBINATION, IN
WHOLE OR IN PART, ON THE PREMISE THAT ANY OF RESPONDENTS' PRE-1929 OR
NRA CODE ACTIVITIES WERE ILLEGAL.  THE CONSIDERATION GIVEN THESE
ACTIVITIES BY THE COMMISSION WAS WELL WITHIN THE ESTABLISHED JUDICIAL
RULE OF EVIDENCE THAT TESTIMONY OF PRIOR OR SUBSEQUENT TRANSACTIONS,
WHICH FOR SOME REASON ARE BARRED FROM FORMING THE BASIS FOR A SUIT, MAY
NEVERTHELESS BE INTRODUCED IF IT TENDS REASONABLY TO SHOW THE PURPOSE
AND CHARACTER OF THE PARTICULAR TRANSACTIONS UNDER SCRUTINY.  STANDARD
OIL CO. V. UNITED STATES, 221 U.S. 1, 46-47; UNITED STATES V. READING
CO., 253 U.S. 26, 43-44.  HERE THE TRADE PRACTICES OF AN ENTIRE
INDUSTRY WERE UNDER CONSIDERATION.  RESPONDENTS, ON THE ONE HAND,
INSISTED THAT THE MULTIPLE BASING POINT DELIVERED PRICE SYSTEM
REPRESENTED A NATURAL EVOLUTION OF BUSINESS PRACTICES ADOPTED BY THE
DIFFERENT CEMENT COMPANIES, NOT IN CONCERT, BUT SEPARATELY IN RESPONSE
TO CUSTOMERS' NEEDS AND DEMANDS.  THAT THE SEPARATELY ADOPTED BUSINESS
PRACTICES PRODUCED UNIFORM TERMS AND CONDITIONS OF SALE IN ALL
LOCALITIES WAS, SO THE RESPONDENTS CONTENDED, NOTHING BUT AN INEVITABLE
RESULT OF LONG-CONTINUED COMPETITION.  ON THE OTHER HAND, THE
GOVERNMENT CONTENDED THAT, DESPITE SHIFTS IN OWNERSHIP OF INDIVIDUAL
CEMENT COMPANIES, WHAT HAD TAKEN PLACE FROM 1902 TO THE DATE THE
COMPLAINT WAS FILED SHOWED CONTINUED CONCERTED ACTION ON THE PART OF
ALL CEMENT PRODUCERS TO DEVELOP AND IMPROVE THE BASING POINT SYSTEM SO
THAT IT WOULD AUTOMATICALLY ELIMINATE COMPETITION.  IN THE GOVERNMENT'S
VIEW THE INSTITUTE WHEN FORMED IN 1929 SIMPLY TOOK UP THE OLD PRACTICES
FOR THE OLD PURPOSE AND AIDED ITS MEMBER COMPANIES TO CARRY IT STRAIGHT
ON THROUGH AND BEYOND THE NRA PERIOD.  SEE FORT HOWARD PAPER CO. V.
FEDERAL TRADE COMM'N, 156 F.2D 899, 906. 

FURTHERMORE, ADMINISTRATIVE AGENCIES LIKE THE FEDERAL TRADE
COMMISSION HAVE NEVER BEEN RESTRICTED BY THE RIGID RULES OF EVIDENCE. 
INTERSTATE COMMERCE COMM'N V. BAIRD, 194 U.S. 25, 44.  AND OF COURSE
RULES WHICH BAR CERTAIN TYPES OF EVIDENCE IN CRIMINAL OR QUASI-CRIMINAL
CASES ARE NOT CONTROLLING IN PROCEEDINGS LIKE THIS, WHERE THE EFFECT OF
THE COMMISSION'S ORDER IS NOT TO PUNISH OR TO FASTEN LIABILITY ON
RESPONDENTS FOR PAST CONDUCT BUT TO BAN SPECIFIC PRACTICES FOR THE
FUTURE IN ACCORDANCE WITH THE GENERAL MANDATE OF CONGRESS. 

THE FOREGOING LIKEWISE LARGELY ANSWERS RESPONDENTS' CONTENTION THAT
THERE WAS ERROR IN THE ADMISSION OF A LETTER WRITTEN BY ONE TREANOR IN
1934 TO THE CHAIRMAN OF THE NRA CODE AUTHORITY FOR THE CEMENT
INDUSTRY.  TREANOR, WHO DIED PRIOR TO THE FILING OF THE COMPLAINT, WAS
AT THE TIME PRESIDENT OF ONE OF THE RESPONDENT COMPANIES AND ALSO AN
ACTIVE TRUSTEE OF THE INSTITUTE.  IN THE LETTER HE STATED AMONG OTHER
THINGS THAT THE CEMENT INDUSTRY WAS ONE "ABOVE ALL OTHERS THAT CANNOT
STAND FREE COMPETITION, THAT MUST SYSTEMATICALLY RESTRAIN COMPETITION
OR BE RUINED."  THIS STATEMENT WAS MADE AS PART OF HIS CRITICISM OF THE
CEMENT INDUSTRY'S PUBLICITY CAMPAIGN IN DEFENSE OF THE BASING POINT
SYSTEM.  THE RELEVANCE OF THIS STATEMENT INDICATING THIS INSTITUTE
OFFICIAL'S INFORMED JUDGMENT IS OBVIOUS.  THAT IT MIGHT BE ONLY HIS
CONCLUSION DOES NOT RENDER THE STATEMENT INADMISSIBLE IN THIS
ADMINISTRATIVE PROCEEDING. 

ALL CONTENTIONS IN REGARD TO THE INTRODUCTION OF TESTIMONY HAVE BEEN
CONSIDERED.  NONE OF THEM JUSTIFY REFUSAL TO ENFORCE THIS ORDER. 

THE OLD CEMENT CASE.  - THIS COURT'S OPINION IN CEMENT MFRS. 
PROTECTIVE ASSN. V. UNITED STATES, 268 U.S. 588, KNOWN AS THE OLD
CEMENT CASE, IS RELIED ON BY THE RESPONDENTS IN ALMOST EVERY CONTENTION
THEY PRESENT.  WE THINK IT HAS LITTLE RELEVANCE, IF ANY AT ALL, TO THE
ISSUES IN THIS CASE. 

IN THAT CASE THE UNITED STATES BROUGHT AN ACTION IN THE DISTRICT
COURT TO ENJOIN AN ALLEGED COMBINATION TO VIOLATE SEC. 1 OF THE SHERMAN
ACT.  THE RESPONDENTS WERE THE CEMENT MANUFACTURERS PROTECTIVE
ASSOCIATION, FOUR OF ITS OFFICERS, AND NINETEEN CEMENT MANUFACTURERS. 
THE DISTRICT COURT HELD HEARINGS, MADE FINDINGS OF FACT, AND ISSUED AN
INJUNCTION AGAINST THOSE RESPONDENTS.  THIS COURT, WITH THREE JUSTICES
DISSENTING, REVERSED UPON A REVIEW OF THE EVIDENCE.  IT DID SO BECAUSE
THE GOVERNMENT DID NOT CHARGE AND THE RECORD DID NOT SHOW "ANY
AGREEMENT OR UNDERSTANDING BETWEEN THE DEFENDANTS PLACING LIMITATIONS
ON EITHER PRICES OR PRODUCTION," OR ANY AGREEMENT TO UTILIZE THE BASING
POINT SYSTEM AS A MEANS OF FIXING PRICES.  THE COURT SAID "BUT HERE THE
GOVERNMENT DOES NOT RELY UPON AGREEMENT OR UNDERSTANDING, AND THIS
RECORD WHOLLY FAILS TO ESTABLISH, EITHER DIRECTLY OR BY INFERENCE, ANY
CONCERTED ACTION OTHER THAN THAT INVOLVED IN THE GATHERING AND
DISSEMINATION OF PERTINENT INFORMATION WITH RESPECT TO THE SALE AND
DISTRIBUTION OF CEMENT TO WHICH WE HAVE REFERRED; AND IT FAILS TO SHOW
ANY EFFECT ON PRICE AND PRODUCTION EXCEPT SUCH AS WOULD NATURALLY FLOW
FROM THE DISSEMINATION OF THAT INFORMATION IN THE TRADE AND ITS NATURAL
INFLUENCE ON INDIVIDUAL ACTION."  ID. AT 606.  IN THE OLD CEMENT CASE
AND IN MAPLE FLOORING ASSN. V. UNITED STATES, 268 U.S. 563, DECIDED THE
SAME DAY, THE COURT'S ATTENTION WAS FOCUSED ON THE RIGHTS OF A TRADE
ASSOCIATION, DESPITE THE SHERMAN ACT, OPENLY TO GATHER AND DISSEMINATE
STATISTICS AND INFORMATION AS TO PRODUCTION COSTS, OUTPUT, PAST PRICES,
MERCHANDISE ON HAND, SPECIFIC JOB CONTRACTS, FREIGHT RATES, ETC., SO
LONG AS THE ASSOCIATION DID THESE THINGS WITHOUT ATTEMPTS TO FOSTER
AGREEMENTS OR CONCERTED ACTION WITH REFERENCE TO PRICES, PRODUCTION, OR
TERMS OF SALE.  SUCH ASSOCIATIONS WERE DECLARED GUILTLESS OF VIOLATING
THE SHERMAN ACT, BECAUSE "IN FACT, NO PROHIBITED CONCERT OF ACTION WAS
FOUND."  CORN PRODUCTS CO. V. FEDERAL TRADE COMM'N, 324 U.S. 726, 735. 

THE COURT'S HOLDING IN THE OLD CEMENT CASE WOULD NOT HAVE BEEN
INCONSISTENT WITH A JUDGMENT SUSTAINING THE COMMISSION'S ORDER HERE,
EVEN HAD THE TWO CASES BEEN BEFORE THIS COURT THE SAME DAY.  THE ISSUES
IN THE PRESENT COMMISSION PROCEEDINGS ARE QUITE DIFFERENT FROM THOSE IN
THE OLD CEMENT CASE, ALTHOUGH MANY OF THE TRADE PRACTICES SHOWN HERE
WERE ALSO SHOWN THERE.  IN THE FIRST PLACE, UNLIKE THE OLD CEMENT CASE,
THE COMMISSION DOES HERE SPECIFICALLY CHARGE A COMBINATION TO UTILIZE
THE BASING POINT SYSTEM AS A MEANS TO BRING ABOUT UNIFORM PRICES AND
TERMS OF SALE.  AND HERE THE COMMISSION HAS FOCUSED ATTENTION ON THIS
ISSUE, HAVING INTRODUCED EVIDENCE ON THE ISSUE WHICH COVERS THOUSANDS
OF PAGES.  FURTHERMORE, UNLIKE THE TRIAL COURT IN THE OLD CEMENT CASE,
THE COMMISSION HAS SPECIFICALLY FOUND THE EXISTENCE OF A COMBINATION
AMONG RESPONDENTS TO EMPLOY THE BASING POINT SYSTEM FOR THE PURPOSE OF
SELLING AT IDENTICAL PRICES. 

IN THE SECOND PLACE, INDIVIDUAL CONDUCT, OR CONCERTED CONDUCT, WHICH
FALLS SHORT OF BEING A SHERMAN ACT VIOLATION MAY AS A MATTER OF LAW
CONSTITUTE AN "UNFAIR METHOD OF COMPETITION" PROHIBITED BY THE TRADE
COMMISSION ACT.  A MAJOR PURPOSE OF THAT ACT, AS WE HAVE FREQUENTLY
SAID, WAS TO ENABLE THE COMMISSION TO RESTRAIN PRACTICES AS "UNFAIR"
WHICH, ALTHOUGH NOT YET HAVING GROWN INTO SHERMAN ACT DIMENSIONS WOULD,
MOST LIKELY DO SO IF LEFT UNRESTRAINED.  THE COMMISSION AND THE COURTS
WERE TO DETERMINE WHAT CONDUCT, EVEN THOUGH IT MIGHT THEN BE SHORT OF A
SHERMAN ACT VIOLATION, WAS AN "UNFAIR METHOD OF COMPETITION."  THIS
GENERAL LANGUAGE WAS DELIBERATELY LEFT TO THE "COMMISSION AND THE
COURTS" FOR DEFINITION BECAUSE IT WAS THOUGHT THAT "THERE IS NO LIMIT
TO HUMAN INVENTIVENESS IN THIS FIELD"; THAT CONSEQUENTLY, A DEFINITION
THAT FITTED PRACTICES KNOWN TO LEAD TOWARDS AN UNLAWFUL RESTRAINT OF
TRADE TODAY WOULD NOT FIT TOMORROW'S NEW INVENTIONS IN THE FIELD; AND
THAT FOR CONGRESS TO TRY TO KEEP ITS PRECISE DEFINITIONS ABREAST OF
THIS COURSE OF CONDUCT WOULD BE AN "ENDLESS TASK."  SEE FEDERAL TRADE
COMMISSION V. R.F. KEPPEL & BRO., 291 U.S. 304, 310-312, AND
CONGRESSIONAL COMMITTEE REPORTS THERE QUOTED. 

THESE MARKED DIFFERENCES BETWEEN WHAT A COURT MUST DECIDE IN A
SHERMAN ACT PROCEEDING AND THE DUTY OF THE COMMISSION IN DETERMINING
WHETHER CONDUCT IS TO BE CLASSIFIED AS AN UNFAIR METHOD OF COMPETITION
ARE ENOUGH IN AND OF THEMSELVES TO MAKE THE OLD CEMENT DECISION WHOLLY
INAPPLICABLE TO OUR PROBLEM IN REVIEWING THE FINDINGS IN THIS CASE. 
THAT BASIC PROBLEM IS WHETHER THE COMMISSION MADE FINDINGS OF CONCERTED
ACTION, WHETHER THOSE FINDINGS ARE SUPPORTED BY EVIDENCE, AND IF SO
WHETHER THE FINDINGS ARE ADEQUATE AS A MATTER OF LAW TO SUSTAIN THE
COMMISSION'S CONCLUSION THAT THE MULTIPLE BASING POINT SYSTEM AS
PRACTICED CONSTITUTES AN "UNFAIR METHOD OF COMPETITION," BECAUSE IT
EITHER RESTRAINS FREE COMPETITION OR IS AN INCIPIENT MENACE TO IT. 

FINDINGS AND EVIDENCE.  - IT IS STRONGLY URGED THAT THE COMMISSION
FAILED TO FIND, AS CHARGED IN BOTH COUNTS OF THE COMPLAINT, THAT THE
RESPONDENTS HAD BY COMBINATION, AGREEMENTS, OR UNDERSTANDINGS AMONG
THEMSELVES UTILIZED THE MULTIPLE BASING POINT DELIVERED PRICE SYSTEM AS
A RESTRAINT TO ACCOMPLISH UNIFORM PRICES AND TERMS OF SALE.  A
SUBSIDIARY CONTENTION IS THAT ASSUMING THE COMMISSION DID SO FIND,
THERE IS NO SUBSTANTIAL EVIDENCE TO SUPPORT SUCH A FINDING.  WE THINK
THAT ADEQUATE FINDINGS OF COMBINATION WERE MADE AND THAT THE FINDINGS
HAVE SUPPORT IN THE EVIDENCE. 

THE COMMISSION'S FINDINGS OF FACT SET OUT AT GREAT LENGTH AND WITH
PAINSTAKING DETAIL NUMEROUS CONCERTED ACTIVITIES CARRIED ON IN ORDER TO
MAKE THE MULTIPLE BASING POINT SYSTEM WORK IN SUCH WAY THAT COMPETITION
IN QUALITY, PRICE AND TERMS OF SALE OF CEMENT WOULD BE NON-EXISTENT,
AND THAT UNIFORM PRICES, JOB CONTRACTS, DISCOUNTS, AND TERMS OF SALE
WOULD BE CONTINUOUSLY MAINTAINED.  THE COMMISSION FOUND THAT MANY OF
THESE ACTIVITIES WERE CARRIED ON BY THE CEMENT INSTITUTE, THE
INDUSTRY'S UNINCORPORATED TRADE ASSOCIATION, AND THAT IN OTHER
INSTANCES THE ACTIVITIES WERE UNDER THE IMMEDIATE CONTROL OF GROUPS OF
RESPONDENTS.  AMONG THE COLLECTIVE METHODS USED TO ACCOMPLISH THESE
PURPOSES, ACCORDING TO THE FINDINGS, WERE BOYCOTTS; DISCHARGE OF
UNCOOPERATIVE EMPLOYEES; ORGANIZED OPPOSITION TO THE ERECTION OF NEW
CEMENT PLANTS; SELLING CEMENT IN A RECALCITRANT PRICE CUTTER'S SALES
TERRITORY AT A PRICE SO LOW THAT THE RECALCITRANT WAS FORCED TO ADHERE
TO THE ESTABLISHED BASING POINT PRICES; DISCOURAGING THE SHIPMENT OF
CEMENT BY TRUCK OR BARGE; AND PREPARING AND DISTRIBUTING FREIGHT RATE
BOOKS WHICH PROVIDED RESPONDENTS WITH SIMILAR FIGURES TO USE AS ACTUAL
OR "PHANTOM" FREIGHT FACTORS, THUS GUARANTEEING THAT THEIR DELIVERED
PRICES (BASE PRICES PLUS FREIGHT FACTORS) WOULD BE IDENTICAL ON ALL
SALES WHETHER MADE TO INDIVIDUAL PURCHASERS UNDER OPEN BIDS OR TO
GOVERNMENTAL AGENCIES UNDER SEALED BIDS.  THESE ARE BUT A FEW OF THE
MANY ACTIVITIES OF RESPONDENTS WHICH THE COMMISSION FOUND TO HAVE BEEN
DONE IN COMBINATION TO REDUCE OR DESTROY PRICE COMPETITION IN CEMENT. 
AFTER HAVING MADE THESE DETAILED FINDINGS OF CONCERTED ACTION, THE
COMMISSION FOLLOWED THEM BY A GENERAL FINDING THAT "THE CAPACITY,
TENDENCY, AND EFFECT OF THE COMBINATION MAINTAINED BY THE RESPONDENTS
HEREIN IN THE MANNER AFORESAID  ...  IS TO  ... PROMOTE AND MAINTAIN
THEIR MULTIPLE BASING-POINT DELIVERED-PRICE SYSTEM AND OBSTRUCT AND
DEFEAT ANY FORM OF COMPETITION WHICH THREATENS OR TENDS TO THREATEN THE
CONTINUED USE AND MAINTENANCE OF SAID SYSTEM AND THE UNIFORMITY OF
PRICES CREATED AND MAINTAINED BY ITS USE."  FN14  THE COMMISSION THEN
CONCLUDED THAT "THE AFORESAID COMBINATION AND ACTS AND PRACTICES OF
RESPONDENTS PURSUANT THERETO AND IN CONNECTION THEREWITH, AS
HEREINABOVE FOUND, UNDER THE CONDITIONS AND CIRCUMSTANCES SET FORTH,
CONSTITUTE UNFAIR METHODS OF COMPETITION IN COMMERCE WITHIN THE INTENT
AND MEANING OF THE FEDERAL TRADE COMMISSION ACT."  AND THE COMMISSION'S
CEASE AND DESIST ORDER PROHIBITED RESPONDENTS "FROM ENTERING INTO,
CONTINUING, COOPERATING IN, OR CARRYING OUT ANY PLANNED COMMON COURSE
OF ACTION, UNDERSTANDING, AGREEMENT, COMBINATION, OR CONSPIRACY BETWEEN
AND AMONG ANY TWO OR MORE OF SAID RESPONDENTS  ...  " TO DO CERTAIN
THINGS THERE ENUMERATED. 

THUS WE HAVE A COMPLAINT WHICH CHARGED COLLECTIVE ACTION BY
RESPONDENTS DESIGNED TO MAINTAIN A SALES TECHNIQUE THAT RESTRAINED
COMPETITION, DETAILED FINDINGS OF COLLECTIVE ACTIVITIES BY GROUPS OF
RESPONDENTS TO ACHIEVE THAT END, THEN A GENERAL FINDING THAT
RESPONDENTS MAINTAINED THE COMBINATION, AND FINALLY AN ORDER
PROHIBITING THE CONTINUANCE OF THE COMBINATION.  IT SEEMS IMPOSSIBLE TO
CONCEIVE THAT ANYONE READING THESE FINDINGS IN THEIR ENTIRETY COULD
DOUBT THAT THE COMMISSION FOUND THAT RESPONDENTS COLLECTIVELY
MAINTAINED A MULTIPLE BASING POINT DELIVERED PRICE SYSTEM FOR THE
PURPOSE OF SUPPRESSING COMPETITION IN CEMENT SALES.  THE FINDINGS ARE
SUFFICIENT.  THE CONTENTION THAT THEY ARE NOT IS WITHOUT SUBSTANCE. 

DISPOSITION OF THIS QUESTION BRINGS US TO THE RELATED CONTENTION THAT
THERE WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDINGS.  WE MIGHT
WELL DISPOSE OF THE CONTENTION AS THIS COURT DISMISSED A LIKE ONE WITH
REFERENCE TO EVIDENCE AND FINDINGS IN A CIVIL SUIT BROUGHT UNDER THE
SHERMAN ACT IN SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553, 601:
"AFTER A HEARING OF EXTRAORDINARY LENGTH, IN WHICH NO PERTINENT FACT
WAS PERMITTED TO ESCAPE CONSIDERATION, THE TRIAL COURT SUBJECTED THE
EVIDENCE TO A THOROUGH AND ACUTE ANALYSIS WHICH HAS LEFT BUT SLIGHT
ROOM FOR DEBATE OVER MATTERS OF FACT.  OUR EXAMINATION OF THE RECORD
DISCLOSES NO REASON FOR OVERRULING THE COURT'S FINDINGS IN ANY MATTER
ESSENTIAL TO OUR DECISION."  IN THIS CASE, WHICH INVOLVES THE EVIDENCE
AND FINDINGS OF THE FEDERAL TRADE COMMISSION, WE LIKEWISE SEE NO REASON
FOR UPSETTING THE ESSENTIAL FINDINGS OF THE COMMISSION.  NEITHER DO WE
FIND IT NECESSARY TO REFER TO ALL THE VOLUMINOUS TESTIMONY IN THIS
RECORD WHICH TENDS TO SUPPORT THE COMMISSION'S FINDINGS. 

ALTHOUGH THERE IS MUCH MORE EVIDENCE TO WHICH REFERENCE COULD BE
MADE, WE THINK THAT THE FOLLOWING FACTS SHOWN BY EVIDENCE IN THE
RECORD, SOME OF WHICH ARE IN DISPUTE, ARE SUFFICIENT TO WARRANT THE
COMMISSION'S FINDING OF CONCERTED ACTION. 

WHEN THE COMMISSION RENDERED ITS DECISION THERE WERE ABOUT 80 CEMENT
MANUFACTURING COMPANIES IN THE UNITED STATES OPERATING ABOUT 150
MILLS.  TEN COMPANIES CONTROLLED MORE THAN HALF OF THE MILLS AND THERE
WERE SUBSTANTIAL CORPORATE AFFILIATIONS AMONG MANY OF THE OTHERS.  THIS
CONCENTRATION OF PRODUCTIVE CAPACITY MADE CONCERTED ACTION FAR LESS
DIFFICULT THAN IT WOULD OTHERWISE HAVE BEEN.  THE BELIEF IS PREVALENT
IN THE INDUSTRY THAT BECAUSE OF THE STANDARDIZED NATURE OF CEMENT,
AMONG OTHER REASONS, PRICE COMPETITION IS WHOLLY UNSUITED TO IT.  THAT
BELIEF IS HISTORIC.  IT HAS RESULTED IN CONCERTED ACTIVITIES TO DEVISE
MEANS AND MEASURES TO DO AWAY WITH COMPETITION IN THE INDUSTRY.  OUT OF
THOSE ACTIVITIES CAME THE MULTIPLE BASING POINT DELIVERED PRICE
SYSTEM.  EVIDENCE SHOWS IT TO BE A HANDY INSTRUMENT TO BRING ABOUT
ELIMINATION OF ANY KIND OF PRICE COMPETITION.  THE USE OF THE MULTIPLE
BASING POINT DELIVERED PRICE SYSTEM BY THE CEMENT PRODUCERS HAS BEEN
COINCIDENT WITH A SITUATION WHEREBY FOR MANY YEARS, WITH RARE
EXCEPTIONS, CEMENT HAS BEEN OFFERED FOR SALE IN EVERY GIVEN LOCALITY AT
IDENTICAL PRICES AND TERMS BY ALL PRODUCERS.  THOUSANDS OF SECRET
SEALED BIDS HAVE BEEN RECEIVED BY PUBLIC AGENCIES WHICH CORRESPONDED IN
PRICES OF CEMENT DOWN TO A FRACTIONAL PART OF A PENNY.  FN15 

OCCASIONALLY FOREIGN CEMENT HAS BEEN IMPORTED, AND CEMENT DEALERS
HAVE SOLD IT BELOW THE DELIVERED PRICE OF THE DOMESTIC PRODUCT. 
DEALERS WHO PERSISTED IN SELLING FOREIGN CEMENT WERE BOYCOTTED BY THE
DOMESTIC PRODUCERS.  OFFICERS OF THE INSTITUTE TOOK THE LEAD IN
SECURING PLEDGES BY PRODUCERS NOT TO PERMIT SALES F.O.B. MILL TO
PURCHASERS WHO FURNISHED THEIR OWN TRUCKS, A PRACTICE REGARDED AS
SERIOUSLY DISRUPTIVE OF THE ENTIRE DELIVERED PRICE STRUCTURE OF THE
INDUSTRY. 

DURING THE DEPRESSION IN THE 1930'S, SLOW BUSINESS PROMPTED SOME
PRODUCERS TO DEVIATE FROM THE PRICES FIXED BY THE DELIVERED PRICE
SYSTEM.  MEETINGS WERE HELD BY OTHER PRODUCERS; AN EFFECTIVE PLAN WAS
DEVISED TO PUNISH THE RECALCITRANTS AND BRING THEM INTO LINE.  THE PLAN
WAS SIMPLE BUT SUCCESSFUL.  OTHER PRODUCERS MADE THE RECALCITRANT'S
PLANT AN INVOLUNTARY BASE POINT.  THE BASE PRICE WAS DRIVEN DOWN WITH
RELATIVELY INSIGNIFICANT LOSSES TO THE PRODUCERS WHO IMPOSED THE
PUNITIVE BASING POINT, BUT WITH HEAVY LOSSES TO THE RECALCITRANT WHO
HAD TO MAKE ALL ITS SALES ON THIS BASIS.  IN ONE INSTANCE, WHERE A
PRODUCER HAD MADE A LOW PUBLIC BID, A PUNITIVE BASE POINT PRICE WAS PUT
ON ITS PLANT AND CEMENT WAS REDUCED 10[ PER BARREL; FURTHER REDUCTIONS
QUICKLY FOLLOWED UNTIL THE BASE PRICE AT WHICH THIS RECALCITRANT HAD TO
SELL ITS CEMENT DROPPED TO 75[ PER BARREL, SCARCELY ONE-HALF OF ITS
FORMER BASE PRICE OF $1.45.  WITHIN SIX WEEKS AFTER THE BASE PRICE HIT
75[ CAPITULATION OCCURRED AND THE RECALCITRANT JOINED A PORTLAND CEMENT
ASSOCIATION.  CEMENT IN THAT LOCALITY THEN BOUNCED BACK TO $1.15, LATER
TO $1.35, AND FINALLY TO $1.75. 

THE FOREGOING ARE BUT ILLUSTRATIONS OF THE PRACTICES SHOWN TO HAVE
BEEN UTILIZED TO MAINTAIN THE BASING POINT PRICE SYSTEM.  RESPONDENTS
OFFERED TESTIMONY THAT CEMENT IS A STANDARDIZED PRODUCT, THAT "CEMENT
IS CEMENT," THAT NO DIFFERENCES EXISTED IN QUALITY OR USEFULNESS, AND
THAT PURCHASERS DEMANDED DELIVERED PRICE QUOTATIONS BECAUSE OF THE HIGH
COST OF TRANSPORTATION FROM MILL TO DEALER.  THERE WAS EVIDENCE,
HOWEVER, THAT THE INSTITUTE AND ITS MEMBERS HAD, IN THE INTEREST OF
ELIMINATING COMPETITION, SUPPRESSED INFORMATION AS TO THE VARIATIONS IN
QUALITY THAT SOMETIMES EXIST IN DIFFERENT CEMENTS.  FN16  RESPONDENTS
INTRODUCED THE TESTIMONY OF ECONOMISTS TO THE EFFECT THAT COMPETITION
ALONE COULD LEAD TO THE EVOLUTION OF A MULTIPLE BASING POINT SYSTEM OF
UNIFORM DELIVERED PRICES AND TERMS OF SALE FOR AN INDUSTRY WITH A
STANDARDIZED PRODUCT AND WITH RELATIVELY HIGH FREIGHT COSTS.  THESE
ECONOMISTS TESTIFIED THAT FOR THE ABOVE REASONS NO INFERENCES OF
COLLUSION, AGREEMENT, OR UNDERSTANDING COULD BE DRAWN FROM THE ADMITTED
FACT THAT CEMENT PRICES OF ALL UNITED STATES PRODUCERS HAD FOR MANY
YEARS ALMOST INVARIABLY BEEN THE SAME IN EVERY GIVEN LOCALITY IN THE
COUNTRY.  THERE WAS ALSO CONSIDERABLE TESTIMONY BY OTHER ECONOMIC
EXPERTS THAT THE MULTIPLE BASING POINT SYSTEM OF DELIVERED PRICES AS
EMPLOYED BY RESPONDENTS CONTRAVENED ACCEPTED ECONOMIC PRINCIPLES AND
COULD ONLY HAVE BEEN MAINTAINED THROUGH COLLUSION. 

THE COMMISSION DID NOT ADOPT THE VIEWS OF THE ECONOMISTS PRODUCED BY
THE RESPONDENTS.  IT DECIDED THAT EVEN THOUGH COMPETITION MIGHT TEND TO
DRIVE THE PRICE OF STANDARDIZED PRODUCTS TO A UNIFORM LEVEL, SUCH A
TENDENCY ALONE COULD NOT ACCOUNT FOR THE ALMOST PERFECT IDENTITY IN
PRICES, DISCOUNTS, AND CEMENT CONTAINERS WHICH HAD PREVAILED FOR SO
LONG A TIME IN THE CEMENT INDUSTRY.  THE COMMISSION HELD THAT THE
UNIFORMITY AND ABSENCE OF COMPETITION IN THE INDUSTRY WERE THE RESULTS
OF UNDERSTANDINGS OR AGREEMENTS ENTERED INTO OR CARRIED OUT BY CONCERT
OF THE INSTITUTE AND THE OTHER RESPONDENTS.  IT MAY POSSIBLY BE TRUE,
AS RESPONDENTS' ECONOMISTS TESTIFIED, THAT CEMENT PRODUCERS WILL,
WITHOUT AGREEMENT EXPRESS OR IMPLIED AND WITHOUT UNDERSTANDING EXPLICIT
OR TACIT, ALWAYS AND AT ALL TIMES (FOR SUCH HAS BEEN SUBSTANTIALLY THE
CASE HERE) CHARGE FOR THEIR CEMENT PRECISELY, TO THE FRACTIONAL PART OF
A PENNY, THE PRICE THEIR COMPETITORS CHARGE.  CERTAINLY IT RUNS COUNTER
TO WHAT MANY PEOPLE HAVE BELIEVED, NAMELY, THAT WITHOUT AGREEMENT,
PRICES WILL VARY - THAT THE DESIRE TO SELL WILL SOMETIMES BE SO STRONG
THAT A SELLER WILL BE WILLING TO LOWER HIS PRICES AND TAKE HIS
CHANCES.  WE THEREFORE HOLD THAT THE COMMISSION WAS NOT COMPELLED TO
ACCEPT THE VIEWS OF RESPONDENTS' ECONOMIST-WITNESSES THAT ACTIVE
COMPETITION WAS BOUND TO PRODUCE UNIFORM CEMENT PRICES.  THE COMMISSION
WAS AUTHORIZED TO FIND UNDERSTANDING, EXPRESS OR IMPLIED, FROM EVIDENCE
THAT THE INDUSTRY'S INSTITUTE ACTIVELY WORKED, IN COOPERATION WITH
VARIOUS OF ITS MEMBERS, TO MAINTAIN THE MULTIPLE BASING POINT DELIVERED
PRICE SYSTEM; THAT THIS PRICING SYSTEM IS CALCULATED TO PRODUCE, AND
HAS PRODUCED, UNIFORM PRICES AND TERMS OF SALE THROUGHOUT THE COUNTRY;
AND THAT ALL OF THE RESPONDENTS HAVE SOLD THEIR CEMENT SUBSTANTIALLY IN
ACCORD WITH THE PATTERN REQUIRED BY THE MULTIPLE BASING POINT SYSTEM. 
FN17 

SOME OF THE RESPONDENTS CONTEND THAT PARTICULARLY AS TO THEM CRUCIAL
FINDINGS OF PARTICIPATION BY THEM IN COLLECTIVE ACTION TO ELIMINATE
PRICE COMPETITION AND TO BRING ABOUT UNIFORMITY OF CEMENT PRICES ARE
WITHOUT TESTIMONIAL SUPPORT.  ON THIS GROUND THEY SEEK TO HAVE THE
PROCEEDINGS DISMISSED AS TO THEM EVEN THOUGH THERE MAY BE ADEQUATE
EVIDENCE TO SUSTAIN THE COMMISSION'S FINDINGS AND ORDER AS TO OTHER
RESPONDENTS.  THE COMMISSION REJECTED THEIR CONTENTIONS; THE CIRCUIT
COURT OF APPEALS DID NOT CONSIDER THEM IN ITS OPINION.  THOSE
RESPONDENTS WHOSE INDIVIDUAL CONTENTIONS IN THIS RESPECT DESERVE
SPECIAL MENTION ARE CENTRAL AND SOUTHERN CALIFORNIA CEMENT COMPANIES;
SUPERIOR PORTLAND CEMENT COMPANY AND NORTHWESTERN PORTLAND CEMENT
COMPANY, BOTH OF THE STATE OF WASHINGTON; HURON PORTLAND CEMENT
COMPANY, WHICH DOES BUSINESS IN THE GREAT LAKES REGION; AND MARQUETTE
CEMENT MANUFACTURING COMPANY WITH PLANTS IN ILLINOIS AND MISSOURI. 

THESE COMPANIES SUPPORT THEIR SEPARATE CONTENTIONS FOR PARTICULARIZED
CONSIDERATION BY POINTING OUT AMONG OTHER THINGS THAT THERE WAS RECORD
EVIDENCE WHICH SHOWED DIFFERENCES BETWEEN MANY OF THEIR SALES METHODS
AND THOSE PRACTICED BY OTHER RESPONDENTS.  EACH SAYS THAT THERE WAS NO
DIRECT EVIDENCE TO CONNECT IT WITH ALL OF THE PRACTICES FOUND TO HAVE
BEEN USED BY THE INSTITUTE AND OTHER RESPONDENTS TO ACHIEVE DELIVERED
PRICE UNIFORMITY. 

THE RECORD DOES SHOW SUCH DIFFERENCES AS THOSE SUGGESTED.  IT IS
CORRECT TO SAY, THEREFORE, THAT THE SALES PRACTICES OF THESE PARTICULAR
RESPONDENTS, AND PERHAPS OF OTHER RESPONDENTS AS WELL, WERE NOT AT ALL
TIMES PRECISELY LIKE THE SALES PRACTICES OF ALL OR ANY OF THE OTHERS. 
FOR EXAMPLE, THE COMMISSION FOUND THAT IN 1929 ALL OF THE CENTRAL
CALIFORNIA MILLS BECAME BASING POINTS.  THERE WAS EVIDENCE THAT THE
INSTITUTE'S RATE BOOKS DID NOT EXTEND TO THE STATES IN WHICH SOME OF
THE CALIFORNIA COMPANIES DID BUSINESS.  THE COMMISSION FOUND THAT "IN
SOUTHERN CALIFORNIA THE BASING-POINT SYSTEM OF PRICING IS MODIFIED BY
AN ELABORATE SYSTEM OF ZONE PRICES APPLICABLE IN CERTAIN AREAS," THAT
THE CALIFORNIA SYSTEM DOES NOT REQUIRE SEPARATE CALCULATIONS TO
DETERMINE THE DELIVERED PRICE AT EACH DESTINATION, BUT THAT COMPLETE
PRICE LISTS WERE PUBLISHED BY THE COMPANIES SHOWING DELIVERED PRICES AT
SUBSTANTIALLY ALL DELIVERY POINTS.  NORTHWESTERN AND SUPERIOR ASSERT
THAT AMONG OTHER DISTINCTIVE PRACTICES OF THEIRS, THEY WERE WILLING TO
AND DID BID FOR GOVERNMENT CONTRACTS ON A MILL PRICE RATHER THAN A
DELIVERED PRICE BASIS.  HURON POINTS OUT THAT IT PERMITTED THE USE OF
TRUCKS TO DELIVER CEMENT, WHICH PRACTICE, FAR FROM BEING CONSISTENT
WITH THE PLAN OF OTHERS TO MAINTAIN THE BASING POINT DELIVERED PRICE
FORMULAS, WAS FROWNED ON BY THE INSTITUTE AND OTHERS AS ENDANGERING THE
SUCCESS OF THE PLAN.  MARQUETTE EMPHASIZES THAT IT DID NOT FOLLOW ALL
THE PRACTICES USED TO CARRY OUT THE ANTI-COMPETITION PLAN, AND URGES
THAT ALTHOUGH THE COMMISSION RIGHTLY FOUND THAT IT HAD UPON OCCASION
UNDERCUT ITS COMPETITORS, IT ERRONEOUSLY FOUND THAT ITS ADMITTED
ABANDONMENT OF PRICE CUTTING WAS DUE TO THE COMBINED PRESSURE OF OTHER
RESPONDENTS, INCLUDING THE INSTITUTE. 

WHAT THESE PARTICULAR RESPONDENTS EMPHASIZE DOES SERVE TO UNDERSCORE
CERTAIN FINDINGS WHICH SHOW THAT SOME RESPONDENTS WERE MORE ACTIVE AND
INFLUENTIAL IN THE COMBINATION THAN WERE OTHERS,  FN18 AND THAT SOME
COMPANIES PROBABLY UNWILLINGLY ABANDONED COMPETITIVE PRACTICES AND
ENTERED INTO THE COMBINATION.  BUT NONE OF THE DISTINCTIONS MENTIONED,
OR ANY OTHER DIFFERENCES RELIED ON BY THESE PARTICULAR RESPONDENTS,
JUSTIFIES A HOLDING THAT THERE WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT
THE COMMISSION'S FINDINGS THAT THEY COOPERATED WITH ALL THE OTHERS TO
ACHIEVE THE ULTIMATE OBJECTIVE OF ALL - THE ELIMINATION OF PRICE
COMPETITION IN THE SALE OF CEMENT.  THESE RESPONDENTS' SPECIAL
CONTENTIONS ONLY ILLUSTRATE THAT THE COMMISSION WAS CALLED UPON TO
RESOLVE FACTUAL ISSUES AS TO EACH OF THEM IN THE LIGHT OF WHATEVER
RELEVANT DIFFERENCES IN THEIR PRACTICES WERE SHOWN BY THE EVIDENCE. 
FOR ASIDE FROM THE TESTIMONY INDICATING THE DIFFERENCES IN THEIR
INDIVIDUAL SALES PRACTICES, THERE WAS ABUNDANT EVIDENCE AS TO COMMON
PRACTICES OF THESE RESPONDENTS AND THE OTHERS ON THE BASIS OF WHICH THE
COMMISSION WAS JUSTIFIED IN FINDING COOPERATIVE CONDUCT AMONG ALL TO
ACHIEVE DELIVERED PRICE UNIFORMITY. 

THE EVIDENCE COMMONLY APPLICABLE TO THESE AND THE OTHER RESPONDENTS
SHOWED THAT ALL WERE MEMBERS OF THE INSTITUTE AND THAT THE OFFICERS OF
SOME OF THESE PARTICULAR RESPONDENTS WERE OR HAD BEEN OFFICERS OF THE
INSTITUTE.  WE HAVE ALREADY SUSTAINED FINDINGS THAT THE INSTITUTE WAS
ORGANIZED TO MAINTAIN THE MULTIPLE BASING POINT SYSTEM AS ONE OF THE
"CUSTOMS AND USAGES" OF THE INDUSTRY AND THAT IT PARTICIPATED IN
NUMEROUS ACTIVITIES INTENDED TO ELIMINATE PRICE COMPETITION THROUGH THE
COLLECTIVE EFFORTS OF THE RESPONDENTS.  EVIDENCE BEFORE THE COMMISSION
ALSO SHOWED THAT THE DELIVERED PRICES OF THESE RESPONDENTS, LIKE THOSE
OF ALL THE OTHER RESPONDENTS, WERE, WITH RARE EXCEPTIONS, IDENTICAL
WITH THE DELIVERED PRICES OF ALL THEIR COMPETITORS.  FURTHERMORE, THERE
WAS EVIDENCE THAT ALL OF THESE RESPONDENTS, INCLUDING THOSE WHO SOLD
CEMENT ON A ZONE BASIS IN SECTIONS OF SOUTHERN CALIFORNIA, EMPLOYED THE
MULTIPLE BASING POINT DELIVERED PRICE SYSTEM ON A PORTION OF THEIR
SALES. 

OUR CONCLUSION IS THAT THERE WAS EVIDENCE TO SUPPORT THE COMMISSION'S
FINDINGS THAT ALL OF THE RESPONDENTS, INCLUDING THE CALIFORNIA
COMPANIES, NORTHWESTERN PORTLAND AND SUPERIOR PORTLAND, HURON AND
MARQUETTE, COOPERATED IN CARRYING OUT THE OBJECTIVES OF THE BASING
POINT DELIVERED PRICE SYSTEM. 

UNFAIR METHODS OF COMPETITION.  - WE SUSTAIN THE COMMISSION'S HOLDING
THAT CONCERTED MAINTENANCE OF THE BASING POINT DELIVERED PRICE SYSTEM
IS AN UNFAIR METHOD OF COMPETITION PROHIBITED BY THE FEDERAL TRADE
COMMISSION ACT.  IN SO DOING WE GIVE GREAT WEIGHT TO THE COMMISSION'S
CONCLUSION, AS THIS COURT HAS DONE IN OTHER CASES.  FEDERAL TRADE
COMM'N V. R.F. KEPPEL & BRO., 291 U.S. 304, 314; FEDERAL TRADE COMM'N
V. PACIFIC STATES PAPER TRADE ASSN., 273 U.S. 52, 63.  IN THE KEPPEL
CASE THE COURT CALLED ATTENTION TO THE EXPRESS INTENTION OF CONGRESS TO
CREATE AN AGENCY WHOSE MEMBERSHIP WOULD AT ALL TIMES BE EXPERIENCED, SO
THAT ITS CONCLUSIONS WOULD BE THE RESULT OF AN EXPERTNESS COMING FROM
EXPERIENCE.  WE ARE PERSUADED THAT THE COMMISSION'S LONG AND CLOSE
EXAMINATION OF THE QUESTIONS IT HERE DECIDED HAS PROVIDED IT WITH
PRECISELY THE EXPERIENCE THAT FITS IT FOR PERFORMANCE OF ITS STATUTORY
DUTY.  THE KIND OF SPECIALIZED KNOWLEDGE CONGRESS WANTED ITS AGENCY TO
HAVE WAS AN EXPERTNESS THAT WOULD FIT IT TO STOP AT THE THRESHOLD EVERY
UNFAIR TRADE PRACTICE - THAT KIND OF PRACTICE WHICH, IF LEFT ALONE,
"DESTROYS COMPETITION AND ESTABLISHES MONOPOLY."  FEDERAL TRADE COMM'N
V. RALADAM CO., 283 U.S. 643, 647, 650.  AND SEE FEDERAL TRADE COMM'N
V. RALADAM CO., 316 U.S. 149, 152. 

WE CANNOT SAY THAT THE COMMISSION IS WRONG IN CONCLUDING THAT THE
DELIVERED-PRICE SYSTEM AS HERE USED PROVIDES AN EFFECTIVE INSTRUMENT
WHICH, IF LEFT FREE FOR USE OF THE RESPONDENTS, WOULD RESULT IN
COMPLETE DESTRUCTION OF COMPETITION AND THE ESTABLISHMENT OF MONOPOLY
IN THE CEMENT INDUSTRY.  THAT THE BASING POINT PRICE SYSTEM MAY LEND
ITSELF TO INDUSTRY-WIDE ANTI-COMPETITIVE PRACTICES IS ILLUSTRATED IN
THE FOLLOWING AMONG OTHER CASES:  UNITED STATES V. UNITED STATES GYPSUM
CO., 333 U.S. 364, SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553.  WE
UPHOLD THE COMMISSION'S CONCLUSION THAT THE BASING POINT DELIVERED
PRICE SYSTEM EMPLOYED BY RESPONDENTS IS AN UNFAIR TRADE PRACTICE WHICH
THE TRADE COMMISSION MAY SUPPRESS.  FN19 

THE PRICE DISCRIMINATION CHARGE IN COURT TWO.  - THE COMMISSION FOUND
THAT RESPONDENTS' COMBINATION TO USE THE MULTIPLE BASING POINT
DELIVERED PRICE SYSTEM HAD EFFECTED SYSTEMATIC PRICE DISCRIMINATION IN
VIOLATION OF SEC. 2 OF THE CLAYTON ACT AS AMENDED BY THE ROBINSON
PATMAN ACT.  49 STAT. 1526, 15 U.S.C. SEC. 13.  SECTION 2(A) OF THAT
ACT DECLARES IT TO "BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE  ...
EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE IN PRICE BETWEEN
DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND QUALITY  ...
WHERE THE EFFECT OF SUCH DISCRIMINATION MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE, OR TO
INJURE, DESTROY, OR PREVENT COMPETITION WITH ANY PERSON WHO EITHER
GRANTS OR KNOWINGLY RECEIVES THE BENEFIT OF SUCH DISCRIMINATION, OR
WITH CUSTOMERS OF EITHER OF THEM  ...  " SECTION 2(B) PROVIDES THAT
PROOF OF DISCRIMINATION IN PRICE (SELLING THE SAME KIND OF GOODS
CHEAPER TO ONE PURCHASER THAN TO ANOTHER) MAKES OUT A PRIMA FACIE CASE
OF VIOLATION, BUT PERMITS THE SELLER TO REBUT "THE PRIMA-FACIE CASE
THUS MADE BY SHOWING THAT HIS LOWER PRICE  ...  WAS MADE IN GOOD FAITH
TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR  ...  " 

THE COMMISSION HELD THAT THE VARYING MILL NETS RECEIVED BY
RESPONDENTS ON SALES BETWEEN CUSTOMERS IN DIFFERENT LOCALITIES
CONSTITUTED A "DISCRIMINATION IN PRICE BETWEEN DIFFERENT PURCHASERS"
WITHIN THE PROHIBITION OF SEC. 2(A), AND THAT THE EFFECT OF THIS
DISCRIMINATION WAS THE SUBSTANTIAL LESSENING OF COMPETITION BETWEEN
RESPONDENTS.  THE CIRCUIT COURT OF APPEALS REVERSED THE COMMISSION ON
THIS COUNT.  IT AGREED THAT RESPONDENTS' PRICES WERE UNLAWFUL INSOFAR
AS THEY INVOLVED THE COLLECTION OF PHANTOM FREIGHT, BUT IT HELD THAT
PRICES INVOLVING ONLY FREIGHT ABSORPTION CAME WITHIN THE "GOOD FAITH"
PROVISO OF SEC. 2(B). 

THE RESPONDENTS CONTEND THAT THE DIFFERENCES IN THEIR NET RETURNS
FROM SALES IN DIFFERENT LOCALITIES WHICH RESULT FROM USE OF THE
MULTIPLE BASING POINT DELIVERED PRICE SYSTEM ARE NOT PRICE
DISCRIMINATIONS WITHIN THE MEANING OF SEC. 2(A).  IF HELD THAT THESE
NET RETURN DIFFERENCES ARE PRICE DISCRIMINATIONS PROHIBITED BY SEC.
2(A), THEY CONTEND THAT THE DISCRIMINATIONS WERE JUSTIFIED UNDER SEC.
2(B) BECAUSE "MADE IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A
COMPETITOR."  PRACTICALLY ALL THE ARGUMENTS PRESENTED BY RESPONDENTS IN
SUPPORT OF THEIR CONTENTIONS WERE CONSIDERED BY THIS COURT AND REJECTED
IN 1945 IN CORN PRODUCTS CO. V. FEDERAL TRADE COMM'N, 324 U.S. 726, AND
IN THE RELATED CASE OF FEDERAL TRADE COMM'N V. STALEY CO., 324 U.S.
746.  AS STATED IN THE CORN PRODUCTS OPINION AT 730, CERTIORARI WAS
GRANTED IN THOSE TWO CASES BECAUSE THE "QUESTIONS INVOLVED" WERE "OF
IMPORTANCE IN THE ADMINISTRATION OF THE CLAYTON ACT IN VIEW OF THE
WIDESPREAD USE OF BASING POINT PRICE SYSTEMS."  FOR THIS REASON THE
QUESTIONS THERE RAISED WERE GIVEN THOROUGH CONSIDERATION. 
CONSEQUENTLY, WE SEE NO REASON FOR AGAIN REVIEWING THE QUESTIONS THAT
WERE THERE DECIDED. 

IN THE CORN PRODUCTS CASE THE COURT, IN HOLDING ILLEGAL A SINGLE
BASING POINT SYSTEM, SPECIFICALLY RESERVED DECISION UPON THE LEGALITY
UNDER THE CLAYTON ACT OF A MULTIPLE BASING POINT PRICE SYSTEM, BUT ONLY
IN VIEW OF THE "GOOD FAITH" PROVISO OF SEC. 2(B), AND REFERRED AT THAT
POINT TO THE COMPANION STALEY OPINION.  324 U.S. AT 735.  THE LATTER
CASE HELD THAT A SELLER COULD NOT JUSTIFY THE ADOPTION OF A
COMPETITOR'S BASING POINT PRICE SYSTEM UNDER SEC. 2(B) AS A GOOD FAITH
ATTEMPT TO MEET THE LATTER'S EQUALLY LOW PRICE.  THUS THE COMBINED
EFFECT OF THE TWO CASES WAS TO FORBID THE ADOPTION FOR SALES PURPOSES
OF ANY BASING POINT PRICING SYSTEM.  IT IS TRUE THAT THE COMMISSION'S
COMPLAINT IN THE CORN PRODUCTS AND STALEY CASES SIMPLY CHARGED THE
INDIVIDUAL RESPONDENTS WITH DISCRIMINATION IN PRICE THROUGH USE OF A
BASING POINT PRICE SYSTEM, AND DID NOT, AS HERE, ALLEGE A CONSPIRACY OR
COMBINATION TO USE THAT SYSTEM.  BUT THE HOLDINGS IN THOSE TWO CASES
THAT SEC. 2 FORBIDS A BASING POINT PRICE SYSTEM ARE EQUALLY CONTROLLING
HERE, WHERE THE USE OF SUCH A SYSTEM IS FOUND TO HAVE BEEN THE RESULT
OF A COMBINATION.  RESPONDENTS DENY, HOWEVER, THAT THE CORN PRODUCTS
AND STALEY CASES PASSED ON THE QUESTIONS THEY HERE URGE. 

CORN PRODUCTS CO. WAS ENGAGED IN THE MANUFACTURE AND SALE OF
GLUCOSE.  IT HAD TWO PLANTS, ONE IN CHICAGO, ONE IN KANSAS CITY.  BOTH
PLANTS SOLD "ONLY AT DELIVERED PRICES, COMPUTED BY ADDING TO A BASE
PRICE AT CHICAGO THE PUBLISHED FREIGHT TARIFF FROM CHICAGO TO THE
SEVERAL POINTS OF DELIVERY, EVEN THOUGH DELIVERIES ARE IN FACT MADE
FROM THEIR FACTORY AT KANSAS CITY AS WELL AS FROM THEIR CHICAGO
FACTORY."  324 U.S. AT 729.  THIS PRICE SYSTEM WE HELD RESULTED IN CORN
PRODUCTS CO. RECEIVING FROM DIFFERENT PURCHASERS DIFFERENT NET AMOUNTS
CORRESPONDING TO DIFFERENCES IN THE AMOUNTS OF PHANTOM FREIGHT
COLLECTED OR OF ACTUAL FREIGHT CHARGES ABSORBED.  WE FURTHER HELD THAT
"PRICE DISCRIMINATIONS ARE NECESSARILY INVOLVED WHERE THE PRICE BASING
POINT IS DISTANT FROM THE POINT OF PRODUCTION," BECAUSE IN SUCH
SITUATIONS PRICES "USUALLY INCLUDE AN ITEM OF UNEARNED OR PHANTOM
FREIGHT OR REQUIRE THE ABSORPTION OF FREIGHT WITH THE CONSEQUENT
VARIATIONS IN THE SELLER'S NET FACTORY PRICES.  SINCE SUCH FREIGHT
DIFFERENTIALS BEAR NO RELATION TO THE ACTUAL COST OF DELIVERY, THEY ARE
SYSTEMATIC DISCRIMINATIONS PROHIBITED BY SEC. 2(A), WHENEVER THEY HAVE
THE DEFINED EFFECT UPON COMPETITION."  FEDERAL TRADE COMM'N V. STALEY,
SUPRA AT 750-751.  THIS WAS A DIRECT HOLDING THAT A PRICING SYSTEM
INVOLVING BOTH PHANTOM FREIGHT AND FREIGHT ABSORPTION VIOLATES SEC.
2(A) IF UNDER THAT SYSTEM PRICES ARE COMPUTED FOR PRODUCTS ACTUALLY
SHIPPED FROM ONE LOCALITY ON THE FICTION THAT THEY WERE SHIPPED FROM
ANOTHER.  THIS COURT MADE THE HOLDING DESPITE ARGUMENTS, WHICH ARE NOW
REPEATED HERE, THAT IN PASSING THE ROBINSON-PATMAN ACT, CONGRESS
MANIFESTED ITS PURPOSE TO SANCTION SUCH PRICING SYSTEMS; THAT THIS
COURT HAD APPROVED THE SYSTEM IN MAPLE FLOORING ASSN. V. UNITED STATES,
268 U.S. 563, AND IN CEMENT MFRS.  ASSN.  V. UNITED STATES, 268 U.S.
588; AND THAT THERE WAS NO DISCRIMINATION UNDER THIS SYSTEM BETWEEN
BUYERS AT THE SAME POINT OF DELIVERY. 

RESPONDENTS ATTEMPT TO DISTINGUISH THEIR MULTIPLE BASING POINT
PRICING SYSTEM FROM THOSE PREVIOUSLY HELD UNLAWFUL BY POINTING OUT THAT
IN SOME SITUATIONS THEIR SYSTEM INVOLVES NEITHER PHANTOM FREIGHT NOR
FREIGHT ABSORPTION; FOR EXAMPLE, SALES BY A BASE MILL AT ITS BASE PRICE
PLUS ACTUAL FREIGHT FROM THE MILL TO THE POINT OF DELIVERY INVOLVE
NEITHER PHANTOM FREIGHT NOR FREIGHT ABSORPTION.  BUT THE CORN PRODUCTS
PRICING SYSTEM WHICH WAS CONDEMNED BY THIS COURT RELATED TO A BASE
MILL, THAT AT CHICAGO, AS WELL AS TO A NON-BASE MILL, AT KANSAS CITY. 
THE COURT DID NOT PERMIT THIS FACT TO RELIEVE THE PRICING SYSTEM FROM
APPLICATION OF SEC. 2, OR TO REQUIRE ANY MODIFICATION OF THE
COMMISSION'S ORDER.  SO HERE, WE COULD NOT REQUIRE THE COMMISSION TO
ATTEMPT TO DISTINGUISH BETWEEN SALES MADE BY A BASE MILL INVOLVING
ACTUAL FREIGHT COSTS AND ALL OTHER SALES MADE BY BOTH BASE AND NON-BASE
MILLS, WHEN ALL MILLS ADHERE TO A COMMON PRICING SYSTEM. 

PRICE THAN IT SELLS TO ANOTHER IF THE PRICE IS "MADE IN GOOD FAITH TO
MEET AN EQUALLY LOW PRICE OF A COMPETITOR."  BUT THIS DOES NOT MEAN
THAT SEC. 2(B) PERMITS A SELLER TO USE A SALES SYSTEM WHICH CONSTANTLY
RESULTS IN HIS GETTING MORE MONEY FOR LIKE GOODS FROM SOME CUSTOMERS
THAN HE DOES FROM OTHERS.  WE HELD TO THE CONTRARY IN THE STALEY CASE. 
THERE WE SAID THAT THE ACT "SPEAKS ONLY OF THE SELLER'S 'LOWER' PRICE
AND OF THAT ONLY TO THE EXTENT THAT IT IS MADE 'IN GOOD FAITH TO MEET
AN EQUALLY LOW PRICE OF A COMPETITOR.'  THE ACT THUS PLACES EMPHASIS ON
INDIVIDUAL COMPETITIVE SITUATIONS, RATHER THAN UPON A GENERAL SYSTEM OF
COMPETITION."  FEDERAL TRADE COMM'N V. STALEY, SUPRA AT 753.  EACH OF
THE RESPONDENTS, WHETHER ALL ITS MILLS WERE BASING POINTS OR NOT, SOLD
SOME CEMENT AT PRICES DETERMINED BY THE BASING POINT FORMULA AND
GOVERNED BY OTHER BASE MILLS.  THUS, ALL RESPONDENTS TO THIS EXTENT
ADOPTED A DISCRIMINATORY PRICING SYSTEM CONDEMNED BY SEC. 2.  AS THIS
IN ITSELF WAS EVIDENCE OF THE EMPLOYMENT OF THE MULTIPLE BASING POINT
SYSTEM BY THE RESPONDENTS AS A PRACTICE RATHER THAN AS A GOOD FAITH
EFFORT TO MEET "INDIVIDUAL COMPETITIVE SITUATIONS," WE THINK THE
FEDERAL TRADE COMMISSION CORRECTLY CONCLUDED THAT THE USE OF THIS
CEMENT BASING POINT SYSTEM VIOLATED THE ACT.  NOR CAN WE DISCERN UNDER
THESE CIRCUMSTANCES ANY DISTINCTION BETWEEN THE "GOOD FAITH" PROVISO AS
APPLIED TO A SITUATION INVOLVING ONLY PHANTOM FREIGHT AND ONE INVOLVING
ONLY FREIGHT ABSORPTION.  NEITHER COMES WITHIN ITS TERMS. 

WE HOLD THAT THE COMMISSION PROPERLY CONCLUDED THAT RESPONDENTS'
PRICING SYSTEM RESULTS IN PRICE DISCRIMINATIONS.  ITS FINDING THAT THE
DISCRIMINATIONS SUBSTANTIALLY LESSENED COMPETITION BETWEEN RESPONDENTS
AND THAT THEY WERE NOT MADE IN GOOD FAITH TO MEET A COMPETITOR'S PRICE
ARE SUPPORTED BY EVIDENCE.  ACCORDINGLY, THE COMMISSION WAS JUSTIFIED
IN ISSUING A CEASE AND DESIST ORDER AGAINST A CONTINUATION OF THE
UNLAWFUL DISCRIMINATORY PRICING SYSTEM. 

THE ORDER.  - THERE ARE SEVERAL OBJECTIONS TO THE COMMISSION'S CEASE
AND DESIST ORDER.  WE CONSIDER THE OBJECTIONS, HAVING IN MIND THAT THE
LANGUAGE OF ITS PROHIBITIONS SHOULD BE CLEAR AND PRECISE IN ORDER THAT
THEY MAY BE UNDERSTOOD BY THOSE AGAINST WHOM THEY ARE DIRECTED.  SEE
ILLINOIS COMMERCE COMM'N V. THOMSON, 318 U.S. 675, 685.  BUT WE ALSO
HAVE IN MIND THAT THE COMMISSION HAS A WIDE DISCRETION GENERALLY IN THE
CHOICE OF REMEDIES TO COPE WITH TRADE PROBLEMS ENTRUSTED TO IT BY THE
COMMISSION ACT.  JACOB SIEGEL CO. V. FEDERAL TRADE COMM'N, 327 U.S.
608, 611-613.   THERE IS A SPECIAL REASON, HOWEVER, WHY COURTS SHOULD
NOT LIGHTLY MODIFY THE COMMISSION'S ORDERS MADE IN EFFORTS TO SAFEGUARD
A COMPETITIVE ECONOMY.  CONGRESS WHEN IT PASSED THE TRADE COMMISSION
ACT FELT THAT COURTS NEEDED THE ASSISTANCE OF MEN TRAINED TO COMBAT
MONOPOLISTIC PRACTICES IN THE FRAMING OF JUDICIAL DECREES IN ANTITRUST
LITIGATION.  CONGRESS ENVISIONED A COMMISSION TRAINED IN THIS TYPE OF
WORK BY EXPERIENCE IN CARRYING OUT THE FUNCTIONS IMPOSED UPON IT.  FN20
TO THIS END IT PROVIDED IN SEC. 7 OF THE ACT, 15 U.S.C. SEC. 47, THAT
COURTS MIGHT, IF IT SHOULD BE CONCLUDED THAT THE GOVERNMENT WAS
ENTITLED TO A DECREE IN AN ANTITRUST CASE, REFER THAT CASE "TO THE
COMMISSION, AS A MASTER IN CHANCERY, TO ASCERTAIN AND REPORT AN
APPROPRIATE FORM OF DECREE THEREIN."  THE COURT COULD THEN ADOPT OR
REJECT SUCH A REPORT. 

IN THE PRESENT PROCEEDING THE COMMISSION HAS EXHIBITED THE
FAMILIARITY WITH THE COMPETITIVE PROBLEMS BEFORE IT WHICH CONGRESS
ORIGINALLY ANTICIPATED THE COMMISSION WOULD ACHIEVE FROM ITS
EXPERIENCE.  THE ORDER IT HAS PREPARED IS WE THINK CLEAR AND
COMPREHENSIVE.  AT THE SAME TIME THE PROHIBITIONS IN THE ORDER FORBID
NO ACTIVITIES EXCEPT THOSE WHICH IF CONTINUED WOULD DIRECTLY AID IN
PERPETUATING THE SAME OLD UNLAWFUL PRACTICES.  NOR DO WE FIND MERIT TO
THE CHARGES OF SURPLUSAGE IN THE ORDER'S TERMS. 

MOST OF THE OBJECTIONS TO THE ORDER APPEAR TO REST ON THE PREMISE
THAT ITS TERMS WILL BAR AN INDIVIDUAL CEMENT PRODUCER FROM SELLING
CEMENT AT DELIVERED PRICES SUCH THAT ITS NET RETURN FROM ONE CUSTOMER
WILL BE LESS THAN FROM ANOTHER, EVEN IF THE PARTICULAR SALE BE MADE IN
GOOD FAITH TO MEET THE LOWER PRICE OF A COMPETITOR.  THE COMMISSION
DISCLAIMS THAT THE ORDER CAN POSSIBLY BE SO UNDERSTOOD.  NOR DO WE SO
UNDERSTAND IT.  AS WE READ THE ORDER, ALL OF ITS SEPARATE PROHIBITING
PARAGRAPHS AND SUBPARAGRAPHS, WHICH NEED NOT HERE BE SET OUT, ARE
MODIFIED AND LIMITED BY A PREAMBLE.  THIS PREAMBLE DIRECTS THAT ALL OF
THE RESPONDENTS "DO FORTHWITH CEASE AND DESIST FROM ENTERING INTO,
CONTINUING, COOPERATING IN, OR CARRYING OUT ANY PLANNED COMMON COURSE
OF ACTION, UNDERSTANDING, AGREEMENT, COMBINATION, OR CONSPIRACY BETWEEN
AND AMONG ANY TWO OR MORE OF SAID RESPONDENTS, OR BETWEEN ANY ONE OR
MORE OF SAID RESPONDENTS AND OTHERS NOT PARTIES HERETO, TO DO OR
PERFORM ANY OF THE FOLLOWING THINGS  ...  "  THEN FOLLOW THE
PROHIBITORY SENTENCES.  IT IS THUS APPARENT THAT THE ORDER BY ITS TERMS
IS DIRECTED SOLELY AT CONCERTED, NOT INDIVIDUAL ACTIVITY ON THE PART OF
THE RESPONDENTS. 

RESPONDENTS HAVE OBJECTED TO THE PHRASE "PLANNED COMMON COURSE OF
ACTION" IN THE PREAMBLE.  THE OBJECTION IS TWOFOLD; FIRST, THAT IT ADDS
NOTHING TO THE WORDS THAT IMMEDIATELY FOLLOW IT; AND SECOND, THAT IF IT
DOES ADD ANYTHING, "THE COMMISSION SHOULD BE REQUIRED TO STATE WHAT
THIS NOVEL PHRASE MEANS IN THIS ORDER AND WHAT IT ADDS TO THE FOUR
WORDS."  IT SEEMS QUITE CLEAR TO US WHAT THE PHRASE MEANS.  IT IS
MERELY AN EMPHATIC STATEMENT THAT THE COMMISSION IS PROHIBITING
CONCERTED ACTION - PLANNED CONCERTED ACTION.  THE COMMISSION CHOSE A
PHRASE PERHAPS MORE READILY UNDERSTOOD BY BUSINESSMEN THAN THE
ACCOMPANYING LEGAL WORDS OF LIKE IMPORT. 

THEN THERE IS OBJECTION TO THAT PHRASE IN THE PREAMBLE WHICH WOULD
PREVENT RESPONDENTS, OR ANY OF THEM, FROM DOING THE PROHIBITED THINGS
WITH "OTHERS NOT PARTIES HERETO."  WE SEE NO MERIT IN THIS OBJECTION. 
THE COMMISSION HAS FOUND THAT THE CEMENT PRODUCERS HAVE FROM TIME TO
TIME SECURED THE AID OF OTHERS OUTSIDE THE INDUSTRY WHO ARE NOT PARTIES
TO THIS PROCEEDING IN CARRYING OUT THEIR PROGRAM FOR PRESERVING THE
BASING POINT PRICING SYSTEM AS AN INSTRUMENT TO SUPPRESS COMPETITION. 
MOREOVER, THERE WILL VERY LIKELY BE CHANGES IN THE PRESENT OWNERSHIP OF
CEMENT MILLS, AND THE CONSTRUCTION OF NEW MILLS IN THE FUTURE MAY BE
REASONABLY ANTICIPATED.  IN VIEW OF THESE FACTS, THE COMMISSION WAS
AUTHORIZED TO MAKE ITS ORDER BROAD ENOUGH EFFECTIVELY TO RESTRAIN
RESPONDENTS FROM COMBINING WITH OTHERS AS WELL AS AMONG THEMSELVES. 

ONE OTHER SPECIFIC OBJECTION TO THE ORDER WILL BE NOTED.  PARAGRAPH 1
PROHIBITS RESPONDENTS FROM "QUOTING OR SELLING CEMENT PURSUANT TO OR IN
ACCORDANCE WITH ANY OTHER PLAN OR SYSTEM WHICH RESULTS IN IDENTICAL
PRICE QUOTATIONS OR PRICES FOR CEMENT AT POINTS OF QUOTATION OR SALE OR
TO PARTICULAR PURCHASERS BY RESPONDENTS USING SUCH PLAN OR SYSTEM, OR
WHICH PREVENTS PURCHASERS FROM FINDING ANY ADVANTAGE IN PRICE IN
DEALING WITH ONE OR MORE OF THE RESPONDENTS AGAINST ANY OF THE OTHER
RESPONDENTS."  THIS PARAGRAPH LIKE ALL THE OTHERS IN THE ORDER IS
LIMITED BY THE PREAMBLE WHICH REFERS TO CONCERTED CONDUCT IN ACCORDANCE
WITH AGREEMENT OR PLANNED COMMON COURSE OF ACTION.  THE PARAGRAPH IS
MERELY DESIGNED TO FORBID RESPONDENTS FROM ACTING IN HARMONY TO BRING
ABOUT NATIONAL UNIFORMITY IN WHATEVER FASHION THEY MAY SEEK BY
COLLECTIVE ACTION TO ACHIEVE THAT RESULT.  WE THINK THAT NO ONE WOULD
FIND AMBIGUITY IN THIS LANGUAGE WHO CONCLUDED IN GOOD FAITH TO ABANDON
THE OLD PRACTICES.  THERE IS LITTLE DIFFERENCE IN EFFECT BETWEEN
PARAGRAPH 1 TO WHICH OBJECTION IS HERE RAISED AND PARAGRAPH 5 WHICH WAS
SUSTAINED AS PROPER IN FEDERAL TRADE COMM'N V. BEECH-NUT PKG.  CO., 257
U.S. 441, 456(1922), ONE OF THE FIRST TRADE COMMISSION CASES TO COME
BEFORE THIS COURT.  PARAGRAPH 5 IN THE BEECH-NUT CASE READ:  "  ...  BY
UTILIZING ANY OTHER EQUIVALENT COOPERATIVE MEANS OF ACCOMPLISHING THE
MAINTENANCE OF PRICES FIXED BY THE COMPANY." 

MANY OTHER ARGUMENTS HAVE BEEN PRESENTED BY RESPONDENTS.  ALL HAVE
BEEN EXAMINED, BUT WE FIND THEM WITHOUT MERIT. 

THE COMMISSION'S ORDER SHOULD NOT HAVE BEEN SET ASIDE BY THE CIRCUIT
COURT OF APPEALS.  ITS JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED
TO THAT COURT WITH DIRECTIONS TO ENFORCE THE ORDER.  IT IS SO ORDERED. 

FN1  THE COMMISSION DISMISSED THE PROCEEDINGS WITHOUT PREJUDICE
AGAINST RESPONDENT CASTALIA PORTLAND CEMENT CO., WHICH WENT INTO
BANKRUPTCY. 

FN2  RESPONDENT VALLEY FORGE CEMENT CO. IS ASSOCIATED WITH THE
INSTITUTE ONLY BY REASON OF ITS AFFILIATION WITH A MEMBER COMPANY. 

FN3  FEDERAL TRADE COMM'N V. R.F. KEPPEL & BRO., 291 U.S. 304, 310;
FEDERAL TRADE COMM'N V. RALADAM CO., 283 U.S. 643, 649-650; SEE ALSO
UNITED STATES ALKALI ASSN. V. UNITED STATES, 325 U.S. 196, AND SEE
EUGENE DIETZGEN CO. V. FEDERAL TRADE COMM'N, 142 F.2D 321, 326-327, AND
CASES THERE CITED, AMONG THE NUMEROUS CIRCUIT COURTS OF APPEALS CASES
ON THE SAME SUBJECT. 

FN4  "THE COMMISSION HAD ISSUED UP TO OCTOBER, 1939 A TOTAL OF 267
ORDERS TO CEASE AND DESIST IN CASES INVOLVING COOPERATION, CONSPIRACY
OR COMBINATION."  BEER, FEDERAL TRADE LAW AND PRACTICE, 94(1942). 
OTHER WRITERS HAVE ALSO COMMENTED ON THE RECOGNITION BY THE COMMISSION
AND COURTS THAT UNFAIR METHODS OF COMPETITION INCLUDE VIOLATIONS OF THE
SHERMAN ACT.  HANDLER, UNFAIR COMPETITION AND THE FEDERAL TRADE
COMMISSION, 8 G.W.L. REV., 399, 416-417, 419.  MONTAGUE, THE
COMMISSION'S JURISDICTION OVER PRACTICES IN RESTRAINT OF TRADE:  A
LARGE-SCALE METHOD OF MASS ENFORCEMENT OF THE ANTITRUST LAWS, 8 G.W.L.
REV. 365; MILLER, UNFAIR COMPETITION, CHAPTER XI (1941); HENDERSON, THE
FEDERAL TRADE COMMISSION, A STUDY IN ADMINISTRATIVE LAW AND PROCEDURE,
22-28(1924); BEER, FEDERAL TRADE LAW AND PRACTICE, 93 ET SEQ. (1942). 

FN5  SECTION 7 OF THE ACT EMPOWERED THE COMMISSION, UPON THE REQUEST
OF THE DISTRICT COURTS, TO SERVE AS A MASTER IN CHANCERY IN FRAMING
APPROPRIATE DECREES IN ANTITRUST SUITS BROUGHT BY THE ATTORNEY
GENERAL.  SECTION 6(C) AUTHORIZED THE COMMISSION TO INVESTIGATE
COMPLIANCE WITH ANTITRUST DECREES UPON APPLICATION OF THE ATTORNEY
GENERAL AND TO REPORT ITS FINDINGS AND RECOMMENDATIONS TO HIM.  38
STAT. 722, 15 U.S.C. SECS. 47, 46. 

FN6  51 CONG. REC. 11083, 11104, 11528-11533, 12146, 12622-12623,
12733-12734, 12787, 13311-13312, 14251, 14460, 14926, 14929; H.R. REP.
NO. 533, 63D CONG., 2D SESS. 1, 6(1914); H.R. REP. NO. 1142, 63D CONG.,
2D SESS. 18-19(1914); SEN. REP. NO. 597, 63D CONG., 2D SESS. 12
13(1914). 

FN7  SEE RAMSAY CO. V. BILL POSTERS ASSN., 260 U.S. 501, 511; STEVENS
CO. V. FOSTER & KLEISER CO., 311 U.S. 255, 260-261; UNITED STATES V.
FRANKFORT DISTILLERIES, 324 U.S. 293, 297-298. 

FN8  THIS WAS NOT TRUE AS TO STEEL PRODUCED AND SHIPPED FROM
BIRMINGHAM, ALABAMA.  UNDER THE SYSTEM BIRMINGHAM STEEL HAD TO BE SOLD
AT THE PITTSBURGH PRICE PLUS AN ARBITRARY ADDITION OF $5 PER TON. 
THERE WERE ALSO OTHER MINOR VARIATIONS FROM THE SYSTEM AS HERE
DESCRIBED.  SEE UNITED STATES STEEL CORP. ET AL., 8 F.T.C. 1. 

FN9  A BASE MILL SELLING CEMENT FOR DELIVERY AT A POINT OUTSIDE THE
AREA IN WHICH ITS BASE PRICE GOVERNS, AND INSIDE THE AREA WHERE ANOTHER
BASE MILL'S LOWER DELIVERED PRICE GOVERNS, ADOPTS THE LATTER'S LOWER
DELIVERED PRICE.  THE FIRST BASE MILL THUS ABSORBS FREIGHT AND BECOMES
AS TO SUCH SALES A NON-BASE MILL. 

FN10  THE COMMISSION IN ITS FINDINGS EXPLAINED HOW THE MULTIPLE
BASING POINT SYSTEM AFFECTS A SELLER'S NET RETURN ON SALES IN DIFFERENT
LOCALITIES AND HOW THE DELIVERED PRICE IS DETERMINED AT ANY PARTICULAR
POINT.  "SUBSTANTIALLY ALL SALES OF CEMENT BY THE CORPORATE RESPONDENTS
ARE MADE ON THE BASIS OF A DELIVERED PRICE; THAT IS, AT A PRICE
DETERMINED BY THE LOCATION AT WHICH ACTUAL DELIVERY OF THE CEMENT IS
MADE TO THE PURCHASER.  IN DETERMINING THE DELIVERED PRICE WHICH WILL
BE CHARGED FOR CEMENT AT ANY GIVEN LOCATION, RESPONDENTS USE A MULTIPLE
BASING-POINT SYSTEM.  THE FORMULA USED TO MAKE THIS SYSTEM OPERATIVE IS
THAT THE DELIVERED PRICE AT ANY LOCATION SHALL BE THE LOWEST
COMBINATION OF BASE PRICE PLUS ALL-RAIL FREIGHT.  THUS, IF MILL A HAS A
BASE PRICE OF $1.50 PER BARREL, ITS DELIVERED PRICE AT EACH LOCATION
WHERE IT SELLS CEMENT WILL BE $1.50 PER BARREL PLUS THE ALLRAIL FREIGHT
FROM ITS MILL TO THE POINT OF DELIVERY, EXCEPT THAT WHEN A SALE IS MADE
FOR DELIVERY AT A LOCATION AT WHICH THE COMBINATION OF THE BASE PRICE
PLUS ALL-RAIL FREIGHT FROM ANOTHER MILL IS A LOWER FIGURE, MILL A USES
THIS LOWER COMBINATION SO THAT ITS DELIVERED PRICE AT SUCH LOCATION
WILL BE THE SAME AS THE DELIVERED PRICE OF THE OTHER MILL.  AT ALL
LOCATIONS WHERE THE BASE PRICE OF MILL A PLUS FREIGHT IS THE LOWEST
COMBINATION, MILL A RECOVERS $1.50 NET AT THE MILL, AND AT LOCATIONS
WHERE THE COMBINATION OF BASE PRICE PLUS FREIGHT OF ANOTHER MILL IS
LOWER, MILL A SHRINKS ITS MILL NET SUFFICIENTLY TO EQUAL THAT PRICE. 
UNDER THESE CONDITIONS IT IS OBVIOUS THAT THE HIGHEST MILL NET WHICH
CAN BE RECOVERED BY MILL A IS $1.50 PER BARREL, AND ON SALES WHERE IT
HAS BEEN NECESSARY TO SHRINK ITS MILL NET IN ORDER TO MATCH THE
DELIVERED PRICE OF ANOTHER MILL, ITS NET RECOVERY AT THE MILL IS LESS
THAN $1.50."  37 F.T.C. AT 147-148. 

FN11  MARQUETTE IN SUPPORT OF ITS MOTION TO DISQUALIFY THE COMMISSION
URGED THAT THE DEPARTMENT OF JUSTICE AND THE COMMISSION HAD CONCURRENT
POWER OR JURISDICTION TO ENFORCE THE PROHIBITIONS OF THE SHERMAN ACT. 
147 F.2D AT 593. 

FN12  "SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT DOES NOT PROVIDE
PRIVATE PERSONS WITH AN ADMINISTRATIVE REMEDY FOR PRIVATE WRONGS."  THE
COMMISSION IS NOT A COURT.  IT CAN RENDER NO JUDGMENT, CIVIL OR
CRIMINAL.  FEDERAL TRADE COMM'N V. KLESNER, 280 U.S. 19, 25; AND SEE
HUMPHREY'S EXECUTOR V. UNITED STATES, 295 U.S. 602, 628; LOUISVILLE &
N.R. CO. V. GARRETT, 231 U.S. 298, 307. 

FN13  WE NEED NOT HERE DETERMINE WHAT PROTECTION WAS AFFORDED
RESPONDENTS BY THE EXEMPTION FROM THE ANTITRUST LAWS CONFERRED BY THE
ACT LATER HELD UNCONSTITUTIONAL.  NOR NEED WE DECIDE WHETHER THIS
PROVISION ALSO EXEMPTED RESPONDENTS FROM THE UNFAIR METHODS OF
COMPETITION PROVISIONS OF THE TRADE COMMISSION ACT.  THE GOVERNMENT
DOES NOT PRESS EITHER CONTENTION HERE. 

FN14  PARAGRAPH 26 OF THE FINDINGS IS AS FOLLOWS: 

"THE COMMISSION CONCLUDES FROM THE EVIDENCE OF RECORD AND THEREFORE
FINDS THAT THE CAPACITY, TENDENCY, AND EFFECT OF THE COMBINATION
MAINTAINED BY THE RESPONDENTS HEREIN IN THE MANNER AFORESAID AND THE
ACTS AND PRACTICES PERFORMED THEREUNDER AND IN CONNECTION THEREWITH BY
SAID RESPONDENTS, AS SET OUT HEREIN, HAS BEEN AND IS TO HINDER, LESSEN,
RESTRAIN, AND SUPPRESS COMPETITION IN THE SALE AND DISTRIBUTION OF
CEMENT IN, AMONG, AND BETWEEN THE SEVERAL STATES OF THE UNITED STATES;
TO DEPRIVE PURCHASERS OF CEMENT, BOTH PRIVATE AND GOVERNMENTAL, OF THE
BENEFITS OF COMPETITION IN PRICE; TO SYSTEMATICALLY MAINTAIN ARTIFICIAL
AND MONOPOLISTIC METHODS AND PRICES IN THE SALE AND DISTRIBUTION OF
CEMENT, INCLUDING COMMON RATE FACTORS USED AND USEFUL IN THE PRICING OF
CEMENT; TO PREVENT PURCHASERS FROM UTILIZING MOTORTRUCKS OR WATER
CARRIERS FOR THE TRANSPORTATION OF CEMENT AND FROM OBTAINING BENEFITS
WHICH MIGHT ACCRUE FROM THE USE OF SUCH TRANSPORTATION AGENCIES; TO
REQUIRE THAT PURCHASES OF CEMENT BE MADE ON A DELIVERED PRICE BASIS,
AND TO PREVENT AND DEFEAT EFFORTS OF PURCHASERS TO AVOID THIS
REQUIREMENT; FREQUENTLY TO DEPRIVE AGENCIES OF THE FEDERAL GOVERNMENT
OF THE BENEFITS OF ALL OR A PART OF THE LOWER LAND-GRANT RATES
AVAILABLE TO SUCH PURCHASERS; TO REQUIRE CERTAIN AGENCIES OF THE
FEDERAL GOVERNMENT TO PURCHASE THEIR REQUIREMENTS OF CEMENT THROUGH
DEALERS AT HIGHER PRICES THAN ARE AVAILABLE IN DIRECT PURCHASES FROM
MANUFACTURERS; TO ESTABLISH AND MAINTAIN AN AGREED CLASSIFICATION OF
CUSTOMERS WHO MAY PURCHASE CEMENT FROM MANUFACTURERS THEREOF; TO
MAINTAIN UNIFORM TERMS AND CONDITIONS OF SALE; TO HINDER AND OBSTRUCT
THE SALE OF IMPORTED CEMENT THROUGH RESTRAINTS UPON THOSE WHO DEAL IN
SUCH CEMENT; AND OTHERWISE TO PROMOTE AND MAINTAIN THEIR MULTIPLE
BASING-POINT DELIVERED-PRICE SYSTEM AND OBSTRUCT AND DEFEAT ANY FORM OF
COMPETITION WHICH THREATENS OR TENDS TO THREATEN THE CONTINUED USE AND
MAINTENANCE OF SAID SYSTEM AND THE UNIFORMITY OF PRICES CREATED AND
MAINTAINED BY ITS USE."  37 F.T.C. AT 257-258.    FN15  THE FOLLOWING
IS ONE AMONG MANY OF THE COMMISSION'S FINDINGS AS TO THE IDENTITY OF
SEALED BIDS:  AN ABSTRACT OF THE BIDS FOR 6,000 BARRELS OF CEMENT TO
THE UNITED STATES ENGINEER OFFICE AT TUCUMCARI, NEW MEXICO, OPENED
APRIL 23, 1936, SHOWS THE FOLLOWING: 

NAME OF BIDDER      PRICE PER BBL.      NAME OF BIDDER      PRICE PER
BBL. 

MONARCH ............$3.286854          OKLAHOMA ...........$3.286854 

ASH GROVE ..........3.286854            CONSOLIDATED .......3.286854 

LEHIGH .............3.286854            TRINITY ............3.286854 

SOUTHWESTERN .......3.286854            LONE STAR ..........3.286854 
U.S. PORTLAND                           UNIVERSAL ..........3.286854 

CEMENT CO...........3.286854            COLORADO ...........3.286854 

ALL BIDS SUBJECT TO 10[ PER BARREL DISCOUNT FOR PAYMENT IN 15 DAYS. 
(COM. EX. 175-A.)  SEE 157 F.2D AT 576. 

FN16  SEE SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553, 600:  "THE
FACT THAT, BECAUSE SUGAR IS A STANDARDIZED COMMODITY, THERE IS A STRONG
TENDENCY TO UNIFORMITY OF PRICE, MAKES IT THE MORE IMPORTANT THAT SUCH
OPPORTUNITIES AS MAY EXIST FOR FAIR COMPETITION SHOULD NOT BE
IMPAIRED." 

FN17  IT IS ENOUGH TO WARRANT A FINDING OF A "COMBINATION" WITHIN THE
MEANING OF THE SHERMAN ACT, IF THERE IS EVIDENCE THAT PERSONS, WITH
KNOWLEDGE THAT CONCERTED ACTION WAS CONTEMPLATED AND INVITED, GIVE
ADHERENCE TO AND THEN PARTICIPATE IN A SCHEME.  INTERSTATE CIRCUIT V.
UNITED STATES, 306 U.S. 208, 226-227; UNITED STATES V. MASONITE CORP.,
316 U.S. 265, 275; UNITED STATES V. BAUSCH & LOMB CO., 321 U.S. 707,
722-723; UNITED STATES V. U.S. GYPSUM CO., 333 U.S. 364, 393-394.  SEE
UNITED STATES MALTSTERS ASSN. V. FEDERAL TRADE COMM'N, 152 F.2D 161,
164:  "WE ARE OF THE VIEW THAT THE COMMISSION'S FINDINGS THAT A PRICE
FIXING AGREEMENT EXISTED MUST BE ACCEPTED.  ANY OTHER CONCLUSION WOULD
DO VIOLENCE TO COMMON SENSE AND THE REALITIES OF THE SITUATION.  THE
FACT THAT PETITIONERS UTILIZED A SYSTEM WHICH ENABLED THEM TO DELIVER
MALT AT EVERY POINT OF DESTINATION AT EXACTLY THE SAME PRICE IS A
PERSUASIVE CIRCUMSTANCE IN ITSELF.  ESPECIALLY IS THIS SO WHEN IT IS
CONSIDERED THAT PETITIONERS' PLANTS ARE LOCATED IN FOUR DIFFERENT
STATES AND THAT THE BARLEY FROM WHICH THE MALT IS MANUFACTURED IS
PROCURED FROM EIGHT OR NINE DIFFERENT STATES."  SEE ALSO MILK & ICE
CREAM CAN INSTITUTE V. FEDERAL TRADE COMM'N, 152 F.2D 478, 481; FORT
HOWARD PAPER CO. V. FEDERAL TRADE COMM'N, 156 F.2D 899, 907. 

FN18  FOR EXAMPLE, THERE WAS EVIDENCE WHICH SHOWED THAT HURON'S
OFFICIALS PARTICIPATED IN MEETINGS HELD IN CONNECTION WITH ANOTHER
RESPONDENT'S PRACTICES DEEMED INIMICAL TO THE POLICY OF NON
COMPETITION.  AS A RESULT OF THAT MEETING THE OFFENDING COMPANY AGREED
THAT IT WOULD "PLAY THE GAME 100%"; THAT IT WOULD NOT COUNTENANCE
"CHISELING"; THAT IT WOULD NOT KNOWINGLY INVADE TERRITORY OF ITS
COMPETITORS, OR "TEAR DOWN THE PRICE STRUCTURE." 

FN19  WHILE WE HOLD THAT THE COMMISSION'S FINDINGS OF COMBINATION
WERE SUPPORTED BY EVIDENCE, THAT DOES NOT MEAN THAT EXISTENCE OF A
"COMBINATION" IS AN INDISPENSABLE INGREDIENT OF AN "UNFAIR METHOD OF
COMPETITION" UNDER THE TRADE COMMISSION ACT.  SEE FEDERAL TRADE COMM'N
V. BEECH-NUT PACKING CO., 257 U.S. 441, 455. 

FN20  IN SPEAKING OF THE AUTHORITY GRANTED THE COMMISSION TO AID THE
COURTS IN DRAFTING ANTITRUST DECREES, THE SENATE COMMITTEE ON
INTERSTATE COMMERCE SAID: 

"THESE POWERS, PARTLY ADMINISTRATIVE AND PARTLY QUASI JUDICIAL, ARE
OF GREAT IMPORTANCE AND WILL BRING BOTH TO THE ATTORNEY GENERAL AND TO
THE COURT THE AID OF SPECIAL EXPERT EXPERIENCE AND TRAINING IN MATTERS
REGARDING WHICH NEITHER THE DEPARTMENT OF JUSTICE NOR THE COURTS CAN BE
EXPECTED TO BE PROFICIENT. 

"WITH THE EXCEPTION OF THE KNIGHT CASE, THE SUPREME COURT HAS NEVER
FAILED TO CONDEMN AND TO BREAK UP ANY ORGANIZATION FORMED IN VIOLATION
OF THE SHERMAN LAW WHICH HAS BEEN BROUGHT TO ITS ATTENTION; BUT THE
DECREES OF THE COURT, WHILE DECLARING THE LAW SATISFACTORILY AS TO THE
DISSOLUTION OF THE COMBINATIONS, HAVE APPARENTLY FAILED IN MANY
INSTANCES IN THEIR ACCOMPLISHMENT SIMPLY BECAUSE THE COURTS AND THE
DEPARTMENT OF JUSTICE HAVE LACKED THE EXPERT KNOWLEDGE AND EXPERIENCE
NECESSARY TO BE APPLIED TO THE DISSOLUTION OF THE COMBINATIONS AND THE
REASSEMBLING OF THE DIVIDED ELEMENTS IN HARMONY WITH THE SPIRIT OF THE
LAW."  SEN. REP. NO. 597, 63D CONG., 2D SESS. 12(1914). 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE BURTON, DISSENTING. 

WHILE THIS DISSENT IS WRITTEN WITH SPECIAL REFERENCE TO CASE NO. 23
AGAINST THE CEMENT INSTITUTE, ET AL., ITS CONCLUSIONS APPLY TO CASES
NOS. 23-34, ALL OF WHICH WERE CONSIDERED TOGETHER. 

IT IS IMPORTANT TO NOTE THAT THIS COURT HAS DISAGREED WITH THE
CONCLUSIONS OF THE COURT BELOW AS TO THE MATERIAL FACTS CONSTITUTING
THE PREMISE ON WHICH THAT COURT AND THIS HAVE BASED THEIR RESPECTIVE
CONCLUSIONS.  ACCORDINGLY, THIS COURT HAS NEITHER REVERSED NOR DIRECTLY
PASSED UPON THE PRINCIPAL CONCLUSION OF LAW REACHED BY THE COURT
BELOW.  THE COURT BELOW CONCLUDED THAT THERE WAS NOT SUFFICIENT
EVIDENCE TO SUPPORT A FINDING BY THE FEDERAL TRADE COMMISSION OF THE
EXISTENCE OF THAT COMBINATION AMONG THE RESPONDENTS TO RESTRAIN THE
COMPETITION IN PRICE THAT WAS CHARGED IN BOTH COUNTS OF THE COMPLAINT. 
FN1  THE COURT BELOW EVEN DOUBTED THAT THE COMMISSION HAD CLEARLY
STATED THAT IT FOUND SUCH A COMBINATION EXISTED.  HOWEVER, RATHER THAN
SEND THE CASE BACK TO THE COMMISSION FOR CLARIFICATION OF THE
COMMISSION'S FINDINGS OF FACT, THE COURT OF APPEALS ASSUMED THAT THOSE
FINDINGS DID STATE THAT SUCH A COMBINATION EXISTED.  THE COURT THEN
CONCLUDED THAT, EVEN IF THE COMMISSION HAD SO FOUND, THERE WAS NOT
SUFFICIENT EVIDENCE TO SUPPORT THE FINDING.  FN2  ACCORDINGLY, THE
COURT BELOW APPLIED THE LAW OF THE CASE TO A SET OF FACTS THAT DID NOT
INCLUDE SUCH A COMBINATION.  ON THAT BASIS, IT HELD THAT THE
COMMISSION'S ORDER TO CEASE AND DESIST SHOULD BE SET ASIDE.  I AGREE
WITH THE COURT BELOW IN BOTH OF THESE CONCLUSIONS.  FN3  ON THE OTHER
HAND, THIS COURT TODAY HAS HELD NOT ONLY THAT THE COMMISSION FOUND THE
EXISTENCE OF THE COMBINATION AS CHARGED, BUT THAT SUCH FINDING IS
SUFFICIENTLY SUPPORTED BY EVIDENCE IN THE RECORD.  THIS COURT
ACCORDINGLY HAS APPLIED THE LAW OF THE CASE TO A SET OF FACTS WHICH
INCLUDES A COMBINATION AMONG THE RESPONDENTS TO RESTRAIN COMPETITION IN
PRICE AS ALLEGED IN THE COMPLAINT.  THE RESULTING EFFECT IS THAT, WHILE
THE COURT BELOW HAS HELD THAT WITHOUT SUCH A COMBINATION THERE WAS NOT
THE ALLEGED VIOLATION EITHER OF SEC. 5 OF THE FEDERAL TRADE COMMISSION
ACT  FN4  OR OF SEC. 2 OF THE AMENDED CLAYTON ACT,  FN5  YET ON THE
OTHER HAND, THIS COURT HAS HELD THAT, INCLUDING SUCH A COMBINATION,
THERE WAS A VIOLATION OF EACH OF THOSE SECTIONS TO THE EXTENT CHARGED
IN THE SEVERAL CASES.  THIS COURT, THEREFORE, HAS NOT HERE DETERMINED
THE RELATION, IF ANY, OF EITHER OF THE FOREGOING STATUTES TO THE
ABSORPTION OF FREIGHT CHARGES BY INDIVIDUALS WHEN NOT PARTICIPATING IN
A COMBINATION OF THE KIND CHARGED BY THE COMMISSION.  FN6 

THE COMMISSION BASED ITS CONCLUSION UPON ITS FINDING OF THE EXISTENCE
OF THE COMBINATION CHARGED IN ITS COMPLAINT.  FN7  THE COURT BELOW WAS
IN A POSITION TO, AND DID, JUDICIALLY EXAMINE THE RECORD AT LENGTH,
HEAR EXTENDED ARGUMENT UPON IT AND PASS UPON THE MANY INFERENCES TO BE
DRAWN FROM THE EVIDENCE IT CONTAINED.  IN THE LIGHT OF THAT COURT'S
RECENT EXPERIENCE WITH MANY CASES IN THIS PARTICULAR FIELD OF THE LAW,
AND OF WHAT IT HAS DESCRIBED AS ITS "LONG AND CAREFUL STUDY OF THE
SITUATION," IT CONCLUDED THAT THE EVIDENCE WAS NOT SUFFICIENT TO
SUPPORT A FINDING OF THE COMBINATION CHARGED.  ITS OPINION REVIEWED THE
EVIDENCE AND POINTED OUT MANY WEAKNESSES IN THE INFERENCES UPON WHICH
THE COMMISSION HAD BASED ITS FINDING OF THE EXISTENCE OF THE ALLEGED
UNLAWFUL COMBINATION.  FN8 

THE ABSENCE OF SUFFICIENT EVIDENCE TO SUPPORT THE CONCLUSIONS OF THE
COMMISSION WAS ESPECIALLY IMPRESSIVE IN THE CASES CONCERNING THE
CENTRAL CALIFORNIA GROUP, THE SOUTHERN CALIFORNIA GROUP, THE WASHINGTON
OREGON GROUP  FN9  AND THE HURON PORTLAND CEMENT COMPANY.  THE DECISION
OF THE COMMISSION AND OF THIS COURT EVEN IN THOSE CASES WAS MADE
DEPENDENT UPON THE CONCLUSION OF THE EXISTENCE OF A COMBINATION,
HOWEVER ATTENUATED THE BASIS FOR THAT CONCLUSION MIGHT BE.  FN10  THE
CEASE AND DESIST ORDERS IN ALL OF THESE CASES ARE THEREFORE TO BE
REGARDED AS BASED UPON THE UNIQUE AND EXTENDED RECORD PRESENTED IN THIS
CASE, INCLUDING WHAT THIS COURT REFERS TO AS "ABUNDANT EVIDENCE AS TO
COMMON PRACTICES OF THESE RESPONDENTS AND THE OTHERS ON THE BASIS OF
WHICH THE COMMISSION WAS JUSTIFIED IN FINDING COOPERATIVE CONDUCT AMONG
ALL TO ACHIEVE DELIVERED PRICE UNIFORMITY." 

ON THE VIEW OF THE EVIDENCE TAKEN BY THE COURT BELOW AND BY ME, THAT
EVIDENCE DOES NOT SUPPORT THE COMMISSION'S FINDING OF THE COMBINATION
AS CHARGED.  UNLIKE THE COMMISSION AND THE MAJORITY OF THIS COURT, THE
LOWER COURT AND I, THEREFORE, HAVE FACED THE FURTHER ISSUE PRESENTED BY
THE COMMISSION'S CHARGES UNSUPPORTED BY A FINDING OF THE ALLEGED
COMBINATION.  THIS HAS LED US TO CONSIDER AN ISSUE QUITE DIFFERENT FROM
THAT DECIDED BY THIS COURT TODAY.  THAT ISSUE LIES WITHIN THE LONG
ESTABLISHED AND WIDESPREAD PRACTICE BY INDIVIDUALS OF BONA FIDE
COMPETITION BY FREIGHT ABSORPTION WITH WHICH PRACTICE CONGRESS HAS
DECLINED TO INTERFERE, ALTHOUGH ASKED TO DO SO.  FN11 THIS IS THE FIELD
WHERE A PRODUCER, FOR HIS OWN PURPOSES AND WITHOUT COLLUSION, OFTEN
SHIPS HIS PRODUCT TO A CUSTOMER WHO, IN TERMS OF FREIGHT CHARGES, IS
LOCATED NEARER TO ONE OR MORE OF THE PRODUCER'S COMPETITORS THAN TO THE
PRODUCER HIMSELF.  IN SELLING TO SUCH A CUSTOMER, THIS PRODUCER IS AT
AN OBVIOUS FREIGHT DISADVANTAGE.  TO MEET THE LOWER DELIVERED-PRICE OF
HIS COMPETITOR, THE PRODUCER, THEREFORE, REDUCES HIS DELIVERED-PRICE IN
THAT AREA BY A SUM SUFFICIENT TO ABSORB HIS FREIGHT DISADVANTAGE.  HE
MIGHT DO THIS FOR MANY REASONS.  FOR EXAMPLE, THIS CUSTOMER MIGHT BE
SUCH A LARGE CUSTOMER THAT THE VOLUME OF HIS ORDERS WOULD YIELD SUCH A
RETURN TO THE PRODUCER THAT THE PRODUCER, BY DISTRIBUTING HIS FIXED
CHARGES OVER THE RESULTINGLY INCREASED VOLUME OF BUSINESS, COULD ABSORB
THE FREIGHT DIFFERENTIAL WITHOUT LOSS OF PROFIT TO HIS BUSINESS AS A
WHOLE AND WITHOUT RAISING ANY CHARGES TO HIS OTHER CUSTOMERS.  THE
SECURING OF THIS PARTICULAR BUSINESS MIGHT EVEN ENABLE THE PRODUCER TO
REDUCE HIS OWN BASIC FACTORY PRICE TO ALL HIS CUSTOMERS.  IT MIGHT MAKE
THE DIFFERENCE BETWEEN A PROFITABLE AND A LOSING BUSINESS, RESULTING IN
THE PRODUCER'S SOLVENCY OR BANKRUPTCY.  IF THE ADVANTAGE TO BE DERIVED
FROM THIS CUSTOMER'S BUSINESS WERE NOT SUFFICIENT, IN ITSELF, THUS
COMPLETELY TO ABSORB THE FREIGHT DIFFERENTIAL, THE PRODUCER MIGHT
ABSORB ALL OR PART OF SUCH DIFFERENTIAL BY A REDUCTION IN HIS NET
EARNINGS WITHOUT AFFECTING HIS OTHER CUSTOMERS.  WHETHER OR NOT HE
WOULD BE JUSTIFIED IN ABSORBING ANY OR ALL OF THIS FREIGHT DIFFERENTIAL
BY INCREASING HIS CHARGES TO OTHER CUSTOMERS, IN HIS OWN FREIGHT
ADVANTAGE AREA, RAISES A SEPARATE QUESTION AS TO THE VALIDITY OF SUCH
AN INCREASE.  THE COMMISSION AND THE MAJORITY OF THIS COURT DID NOT
REACH THE QUESTION OF INDIVIDUAL AND INDEPENDENT ABSORPTIONS OF FREIGHT
CHARGES BY ONE OR MORE PRODUCERS TO MEET LOWER PRICES OF COMPETITORS IN
SUCH COMPETITORS' RESPECTIVE AREAS OF FREIGHT ADVANTAGE. 

I CONCLUDE, THEREFORE, THAT THE JUDGMENT OF THE COURT OF APPEALS
SETTING ASIDE THE ORDER OF THE FEDERAL TRADE COMMISSION SHOULD HAVE
BEEN AFFIRMED, BUT I EMPHASIZE WHAT I REGARD AS EQUALLY IMPORTANT -
THAT THIS COURT, IN SUSTAINING THE ORDER OF THE COMMISSION, HAS DONE SO
ON SUCH A DIFFERENT PREMISE THAT IT HAS NOT PASSED UPON THE VALIDITY OF
FREIGHT ABSORPTIONS MADE IN SALES BY ONE OR MORE PRODUCERS IN THE
COURSE OF BONA FIDE COMPETITION, WHERE SUCH PRODUCERS HAVE NOT ACTED AS
PART OF A COMBINATION TO HINDER, LESSEN, RESTRAIN OR SUPPRESS
COMPETITION IN THE SALE OR DISTRIBUTION OF THE PRODUCTS SO SOLD. 

FN1  "  ...  FOR MORE THAN EIGHT YEARS LAST PAST, RESPONDENTS HAVE
MAINTAINED AND NOW HAVE IN EFFECT A COMBINATION AMONG THEMSELVES TO
HINDER, LESSEN, RESTRICT AND RESTRAIN COMPETITION IN PRICE, AMONG
PRODUCING RESPONDENTS IN THE COURSE OF THEIR AFORESAID COMMERCE AMONG
THE STATES.  THE SAID COMBINATION IS MADE EFFECTIVE BY MUTUAL
UNDERSTANDING OR AGREEMENT TO EMPLOY, AND BY THE ACTUAL EMPLOYMENT OF,
THE METHODS AND PRACTICES SET FORTH IN PARAGRAPHS FIVE TO SEVEN
INCLUSIVE, OF THIS COUNT."  COUNT I, PARAGRAPH FOUR, OF COMPLAINT. 

"  ...  AS PARAGRAPHS ONE TO FIVE, INCLUSIVE, OF COUNT II OF THIS
COMPLAINT THE COMMISSION HEREBY INCORPORATES PARAGRAPHS ONE TO FIVE,
INCLUSIVE, OF COUNT I TO PRECISELY THE SAME EXTENT AS IF EACH AND ALL
OF THEM WERE SET FORTH IN FULL AND REPEATED VERBATIM IN THIS COUNT." 
COUNT II, PARAGRAPHS ONE TO FIVE, INCLUSIVE, OF COMPLAINT.  37 F.T.C.
AT PP. 102, 117. 

FN2  THE COURT OF APPEALS CONSIDERED IT A "HIGHLY CONTROVERTED ISSUE"
AS TO WHETHER THE FINDINGS AS MADE BY THE COMMISSION, EVEN IF SUPPORTED
BY SUFFICIENT EVIDENCE IN THE RECORD, WOULD "SUSTAIN THE CHARGE OF
COMBINATION ALLEGED IN THE COMPLAINT."  157 F.2D 533, 543.  THAT COURT
THEN SAID THAT IF - 

"THIS WERE AN ORDINARY PROCEEDING WE WOULD RETURN IT TO THE
COMMISSION FOR THE PURPOSE OF REVISING ITS FINDINGS IF IT COULD AND SO
DESIRED IN THE LIGHT OF WHAT WE HAVE SAID.  HOWEVER, WE ARE CONFRONTED
WITH WHAT MIGHT BE TERMED AN EXTRAORDINARY SITUATION.  AS ALREADY
OBSERVED, IT WILL SOON BE TEN YEARS SINCE THIS PROCEEDING WAS
INITIATED.  ...  WE THINK THE CASE SHOULD BE ON ITS WAY UP AND NOT
DOWN.  FOR THIS REASON WE SHALL NOT RETURN IT TO THE COMMISSION BUT
SHALL PROCEED TO DECIDE THE LEGAL ISSUES INVOLVED."  ID. AT P.    FN3
THE LAW OF THE CASE REPRESENTS A DEVELOPMENT OF THE LAW IN RELATION TO
DELIVERED-PRICE SYSTEMS.  SEE ESPECIALLY, FEDERAL TRADE COMM'N V.
STALEY MFG. CO., 324 U.S. 746; CORN PRODUCTS REFINING CO. V. FEDERAL
TRADE COMM'N, 324 U.S. 726; SUGAR INSTITUTE, INC. V. UNITED STATES, 297
U.S. 553; FAIRMONT CREAMERY CO. V. MINNESOTA, 274 U.S. 1; CEMENT MFRS. 
PROTECTIVE ASSN. V. UNITED STATES, 268 U.S. 588; MAPLE FLOORING
MANUFACTURERS ASSN. V. UNITED STATES, 268 U.S. 563; UNITED STATES V.
AMERICAN LINSEED OIL CO., 262 U.S. 371; AETNA PORTLAND CEMENT CO. V.
FEDERAL TRADE COMM'N, 157 F.2D 533(C.C.A.7TH)(THIS CASE BELOW); FORT
HOWARD PAPER CO. V. FEDERAL TRADE COMM'N, 156 F.2D 899(C.C.A.7TH);
UNITED STATES MALTSTERS ASSN. V. FEDERAL TRADE COMM'N, 152 F.2D
161(C.C.A.7TH). 

FN4  "SEC.  5.  (A) UNFAIR METHODS OF COMPETITION IN COMMERCE, AND
UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN COMMERCE, ARE HEREBY DECLARED
UNLAWFUL. 

"THE COMMISSION IS HEREBY EMPOWERED AND DIRECTED TO PREVENT PERSONS,
PARTNERSHIPS, OR CORPORATIONS,  ...  FROM USING UNFAIR METHODS OF
COMPETITION IN COMMERCE AND UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN
COMMERCE. 

"(B)  WHENEVER THE COMMISSION SHALL HAVE REASON TO BELIEVE THAT ANY
SUCH PERSON, PARTNERSHIP, OR CORPORATION HAS BEEN OR IS USING ANY
UNFAIR METHOD OF COMPETITION OR UNFAIR OR DECEPTIVE ACT OR PRACTICE IN
COMMERCE, AND IF IT SHALL APPEAR TO THE COMMISSION THAT A PROCEEDING BY
IT IN RESPECT THEREOF WOULD BE TO THE INTEREST OF THE PUBLIC, IT SHALL
ISSUE AND SERVE UPON SUCH PERSON, PARTNERSHIP, OR CORPORATION A
COMPLAINT STATING ITS CHARGES IN THAT RESPECT AND CONTAINING A NOTICE
OF A HEARING UPON A DAY AND AT A PLACE THEREIN FIXED  ...  IF UPON SUCH
HEARING THE COMMISSION SHALL BE OF THE OPINION THAT THE METHOD OF
COMPETITION OR THE ACT OR PRACTICE IN QUESTION IS PROHIBITED BY THIS
ACT, 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 ON SUCH
PERSON, PARTNERSHIP, OR CORPORATION AN ORDER REQUIRING SUCH PERSON,
PARTNERSHIP, OR CORPORATION TO CEASE AND DESIST FROM USING SUCH METHOD
OF COMPETITION OR SUCH ACT OR PRACTICE.  ...  " 

     .         .         . .         . 

52 STAT. 111-112, 15 U.S.C. SEC. 45. 

FN5  SEC. 2.  (A)  ...  IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED
IN COMMERCE, IN THE COURSE OF SUCH COMMERCE, EITHER DIRECTLY OR
INDIRECTLY, TO DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF
COMMODITIES OF LIKE GRADE AND QUALITY,  ...  WHERE 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:  ... 

"(B)  UPON PROOF BEING MADE, AT ANY HEARING ON A COMPLAINT UNDER THIS
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." 

.         .         .         .         . 49 STAT. 1526, 15 U.S.C.
SEC. 13. 

FN6  THE FINAL SECTION OF THE OPINION OF THE COURT MAKES APPROPRIATE
DISCLAIMERS AS TO THE BREADTH OF THE COMMISSION'S ORDER AND OF ITS OWN
DECISION SUSTAINING THAT ORDER.  AMONG THESE IS THE STATEMENT THAT "THE
ORDER BY ITS TERMS IS DIRECTED SOLELY AT CONCERTED, NOT INDIVIDUAL
ACTIVITY ON THE PART OF THE RESPONDENTS."  THESE DISCLAIMERS ARE
FURTHER SUPPORTED BY SUCH STATEMENTS AS THE FOLLOWING IN THE BRIEF
FILED FOR THE COMMISSION IN THIS COURT: 

"IT IS PLAIN THAT UNDER THIS ORDER THERE IS A VIOLATION OF ITS
PROVISIONS ONLY IN THE EVENT THAT THERE IS A 'PLANNED COMMON COURSE OF
ACTION, UNDERSTANDING, AGREEMENT, COMBINATION, OR CONSPIRACY' TO WHICH
A RESPONDENT IS A PARTY TO DO SOMETHING SPECIFIED IN THE NUMBERED
PARAGRAPHS OF THE ORDER.  THIS IS AN ESSENTIAL QUALIFICATION OF THE
PROHIBITIONS OF THESE PARAGRAPHS.  THE ORDER THEREFORE LEAVES EACH
RESPONDENT FREE - PROVIDED HE ACTS INDIVIDUALLY AND WITH THAT
VARIABILITY IN ACTION RESPECTING PARTICULAR COMPETITIVE SITUATIONS
WHICH IS CHARACTERISTIC OF GENUINE COMPETITIVE ENDEAVOR AND A FREE
MARKET - TO ABSORB FREIGHT IN ORDER TO MEET A COMPETITOR'S LOW PRICE OR
TO SELL AT A DELIVERED PRICE. 

"WHAT THE ORDER DOES IS TO BAR ACTING IN CONCERT IN ADOPTING,
CONTINUING, OR IMPLEMENTING THE MULTIPLE BASING-POINT DELIVERED-PRICE
SYSTEM OR ANY SIMILAR SYSTEM WHICH NECESSARILY OPERATES TO SUPPRESS
PRICE COMPETITION.  THE ORDER IS AIMED AT UPROOTING THE PRICING SYSTEM
WHICH HAS FLOURISHED BY VIRTUE OF THE AGREEMENT AMONG RESPONDENTS,
CHARGED AND FOUND, TO STIFLE PRICE COMPETITION BY SELLING CEMENT AT
IDENTICAL PRICES. 

"THE ERROR OF THE COURT BELOW IS EPITOMIZED IN ITS STATEMENT THAT
'THIS COURT IS NOW URGED TO HOLD THAT THE (MULTIPLE BASING-POINT
DELIVERED-PRICE) SYSTEM IS ILLEGAL PER SE, AND TO REQUIRE THAT CEMENT
BE SOLD ON AN F.O.B. PLANT BASIS'  ...  THE SYSTEM AS SUCH WAS NOT
ATTACKED; WHAT WAS ATTACKED WAS AGREEMENT TO MAINTAIN AND IMPLEMENT THE
SYSTEM AND TO ELIMINATE PRICE COMPETITION. 

"  ...  HAD THE COMMISSION INFERRED AGREEMENT FROM THE SYSTEM ALONE,
IT MIGHT LOOSELY BE SAID THAT THE SYSTEM ITSELF WAS ATTACKED AS ILLEGAL
PER SE.  BUT THIS IS NOT WHAT THE COMMISSION DID.  ITS SEARCHING
INQUIRY DISCLOSED IN SPECIFIC DETAIL THE COLLECTIVE ACTION WHICH HAD
BEEN TAKEN TO IMPLEMENT AND CONTINUE THE SYSTEM.  AND FROM ALL THESE
FACTS, AS WELL AS THE EXISTENCE OF THE SYSTEM ITSELF, THE COMMISSION
FOUND COMBINATION AMONG RESPONDENTS TO SUPPRESS PRICE COMPETITION." 

THE STATEMENT BY THIS COURT, IN ITS NOTE 19, TO THE EFFECT THAT THE
COURT DOES NOT HOLD "THAT EXISTENCE OF A 'COMBINATION' IS AN
INDISPENSABLE INGREDIENT OF AN 'UNFAIR METHOD OF COMPETITION' UNDER THE
TRADE COMMISSION ACT" IS ACCOMPANIED BY A CITATION WHICH SHOWS THAT
THAT STATEMENT IS ONE OF GENERAL APPLICATION AND THAT IT IS NOT
INTENDED AS A DENIAL THAT THE COMBINATION FOUND BY THE COMMISSION IN
THIS CASE IS NOT A HIGHLY MATERIAL AND POSSIBLY DECISIVE FACTOR IN THIS
PARTICULAR CASE. 

FN7  SEE PARAGRAPH TWENTY-SIX OF THE COMMISSION'S "FINDINGS AS TO
FACTS AND CONCLUSION": 

"  ...  THE COMMISSION CONCLUDES FROM THE EVIDENCE OF RECORD AND
THEREFORE FINDS THAT THE CAPACITY, TENDENCY, AND EFFECT OF THE
COMBINATION MAINTAINED BY THE RESPONDENTS HEREIN IN THE MANNER
AFORESAID AND THE ACTS AND PRACTICES PERFORMED THEREUNDER AND IN
CONNECTION THEREWITH BY SAID RESPONDENTS, AS SET OUT HEREIN, HAS BEEN
AND IS TO HINDER, LESSEN, RESTRAIN, AND SUPPRESS COMPETITION IN THE
SALE AND DISTRIBUTION OF CEMENT IN, AMONG, AND BETWEEN THE SEVERAL
STATES OF THE UNITED STATES; TO DEPRIVE PURCHASERS OF CEMENT, BOTH
PRIVATE AND GOVERNMENTAL, OF THE BENEFITS OF COMPETITION IN PRICE; TO
SYSTEMATICALLY MAINTAIN ARTIFICIAL AND MONOPOLISTIC METHODS AND PRICES
IN THE SALE AND DISTRIBUTION OF CEMENT, INCLUDING COMMON RATE FACTORS
USED AND USEFUL IN THE PRICING OF CEMENT; ...  "  37 F.T.C. AT P. 257. 

THE COMMISSION FOLLOWED THIS PARAGRAPH TWENTY-SIX IMMEDIATELY WITH
THE FOLLOWING CONCLUSION OF LAW: 

"THE AFORESAID COMBINATION AND ACTS AND PRACTICES OF RESPONDENTS
PURSUANT THERETO AND IN CONNECTION THEREWITH, AS HEREINABOVE FOUND,
UNDER THE CONDITIONS AND CIRCUMSTANCES SET FORTH, CONSTITUTE UNFAIR
METHODS OF COMPETITION IN COMMERCE WITHIN THE INTENT AND MEANING OF THE
FEDERAL TRADE COMMISSION ACT; AND THE DISCRIMINATIONS IN PRICE BY
RESPONDENTS, AS HEREINABOVE SET OUT, CONSTITUTE VIOLATIONS OF
SUBSECTION (A) OF SECTION 2 OF AN ACT OF CONGRESS ENTITLED 'AN ACT TO
SUPPLEMENT EXISTING LAWS AGAINST UNLAWFUL RESTRAINTS AND MONOPOLIES,
AND FOR OTHER PURPOSES,' APPROVED OCTOBER 15, 1914(THE CLAYTON ACT), AS
AMENDED BY ACT APPROVED JUNE 19, 1936(THE ROBINSON-PATMAN ACT)."  ID.
AT P. 258. 

FN8  A FURTHER REVIEW OF THE INSUFFICIENTLY SUPPORTED INFERENCES
WOULD BE OF LITTLE VALUE HERE.  BY WAY OF ILLUSTRATION, HOWEVER, IT MAY
BE NOTED THAT THE COMMISSION AND THIS COURT, IN ITS NOTE 15, HAVE
EMPHASIZED THE FACT THAT SECRET SEALED BIDS FOR 6,000 BARRELS OF CEMENT
WERE RECEIVED BY A PUBLIC AGENCY FROM TEN OR MORE OF THE RESPONDENT
COMPANIES AND THAT THE BID OF EACH COMPANY WAS PRECISELY $3.286854 A
BARREL.  SUCH A FRACTIONAL IDENTITY OF PRICE WOULD, ON ITS FACE, CREATE
AN INFERENCE OF COLLUSION.  HOWEVER, THE COMMISSION FAILED TO EXPLAIN,
AS HAS THE COURT BELOW, THAT THE HIGHLY FRACTIONAL FIGURE MERELY
REFLECTED THE FREIGHT CHARGE.  THE BID, APART FROM THE FREIGHT CHARGE,
WAS $2.10 PER BARREL WHILE "THE LAND GRANT FREIGHT RATE TO WHICH THE
GOVERNMENT WAS ENTITLED FROM THE NEAREST MILL OF THE ELEVEN BIDDERS WAS
$1.1865854($1.186854) PER BARREL."  AETNA PORTLAND CEMENT CO. V.
FEDERAL TRADE COMM'N, 157 F.2D 533, 567. 

FN9  THE CENTRAL CALIFORNIA GROUP REFERS TO THE FOLLOWING
RESPONDENTS: 

CALAVERAS CEMENT COMPANY, 

PACIFIC PORTLAND CEMENT COMPANY, 

SANTA CRUZ PORTLAND CEMENT COMPANY, 

YOSEMITE PORTLAND CEMENT CORPORATION. 

THE SOUTHERN CALIFORNIA GROUP TO: 

CALIFORNIA PORTLAND CEMENT COMPANY, 

MONOLITH PORTLAND CEMENT COMPANY, 

RIVERSIDE CEMENT COMPANY, 

SOUTHWESTERN PORTLAND CEMENT COMPANY (VICTORVILLE, CALIFORNIA,
PLANT). 

THE WASHINGTON-OREGON GROUP TO: 

BEAVER PORTLAND CEMENT COMPANY, 

LEHIGH PORTLAND CEMENT COMPANY (METALINE FALLS, WASHINGTON, PLANT), 

NORTHWESTERN PORTLAND CEMENT COMPANY, 

OREGON PORTLAND CEMENT COMPANY, 

SPOKANE PORTLAND CEMENT COMPANY, 

SUPERIOR PORTLAND CEMENT, INC. 

FN10  IN A GENERAL FINDING THE COMMISSION INDICATED THAT THE EVIDENCE
CONCERNING CERTAIN OF THE RESPONDENT COMPANIES WAS LESS CONCLUSIVE THAN
THAT RELATING TO SOME OF THE OTHER RESPONDENTS. 

"SOME OF THE RESPONDENTS HAVE BEEN PARTIES TO SUBSTANTIALLY ALL OF
THESE ACTIVITIES; OTHER RESPONDENTS HAVE PARTICIPATED IN A LESSER
DEGREE, OR FULLY OR PARTIALLY FOR SHORTER PERIODS OF TIME; OTHER
RESPONDENTS HAVE BEEN MERE FOLLOWERS, ADOPTING AND SUPPORTING THE
PRACTICES OF THEIR MORE ACTIVE ASSOCIATES; AND A FEW RESPONDENTS HAVE
FROM TIME TO TIME, FOR VARIOUS REASONS, PARTICIPATED ONLY RELUCTANTLY
IN SOME OF THE PRACTICES, AND HAVE OCCASIONALLY OPPOSED FOR A TIME
PARTICULAR INSTANCES OF GROUP ACTION."  COMMISSION'S "FINDINGS AS TO
FACTS AND CONCLUSION," PARAGRAPH SIX (A).  37 F.T.C. AT P. 144. 

FN11  "FURTHERMORE, THE BASING POINT PRICE SYSTEM HAS BEEN IN USE BY
INDUSTRY FOR ALMOST A HALF CENTURY.  THERE HAS BEEN AND IS A MARKED
DIVERSITY OF OPINION AMONG ECONOMISTS, LAWMAKERS AND PEOPLE GENERALLY
AS TO WHETHER IT IS GOOD OR BAD.  NUMEROUS BILLS HAVE BEEN INTRODUCED
IN CONGRESS SEEKING TO OUTLAW ITS USE.  COUNTLESS TIME HAS BEEN SPENT
IN HEARINGS BY CONGRESSIONAL COMMITTEES, BEFORE WHOM IT HAS BEEN
ASSAILED AND DEFENDED.  THE PAGES OF THE CONGRESSIONAL RECORD BEAR MUTE
BUT INDISPUTABLE PROOF OF THE FACT THAT CONGRESS HAS REPEATEDLY REFUSED
TO DECLARE ITS USE ILLEGAL.  THERE IS NO OCCASION TO RELATE THIS
CONGRESSIONAL HISTORY.  IT IS A MATTER OF COMMON AND GENERAL
KNOWLEDGE.  IN THE CORN PRODUCTS CASE, THE COURT IN COMMENTING UPON
SOME OF THIS LEGISLATIVE HISTORY STATED (324 U.S. AT PAGE 737, 65 S.
CT. AT PAGE 967, 89 L. ED. 1320):  'WE THINK THIS LEGISLATIVE HISTORY
INDICATES ONLY THAT CONGRESS WAS UNWILLING TO REQUIRE F.O.B. FACTORY
PRICING, AND THUS TO MAKE ALL UNIFORM DELIVERED PRICE SYSTEMS AND ALL
BASING POINT SYSTEMS ILLEGAL PER SE.'  NOTWITHSTANDING THIS
CONGRESSIONAL ATTITUDE AS RECOGNIZED BY THE SUPREME COURT, THIS COURT
IS NOW URGED TO HOLD THAT THE SYSTEM IS ILLEGAL PER SE, AND TO REQUIRE
THAT CEMENT BE SOLD ON AN F.O.B. PLANT BASIS. 

"IN OUR JUDGMENT, THE QUESTION AS TO WHETHER THE BASING POINT PRICE
SYSTEM SHOULD BE DECLARED ILLEGAL RESTS CLEARLY WITHIN THE LEGISLATIVE
DOMAIN.  WE KNOW OF NO CRITICISM SO OFTEN AND SO FORCIBLY DIRECTED AT
COURTS, PARTICULARLY FEDERAL COURTS, AS THEIR PROPENSITY FOR USURPING
THE FUNCTIONS OF CONGRESS.  IF THIS PRICING SYSTEM WHICH CONGRESS HAS
OVER THE YEARS STEADFASTLY REFUSED TO DECLARE ILLEGAL, ALTHOUGH
VIGOROUSLY URGED TO DO SO, IS NOW TO BE OUTLAWED BY THE COURTS, IT WILL
MARK THE HIGH TIDE IN JUDICIAL USURPATION."  AETNA PORTLAND CEMENT CO.
V. FEDERAL TRADE COMM'N, SUPRA, AT P. 573. 

SEE SECS. 1 AND 2, SHERMAN ANTITRUST ACT, APPROVED JULY 2, 1890, 26
STAT. 209, 15 U.S.C. SECS. 1 AND 2; SEC. 5, FEDERAL TRADE COMMISSION
ACT, APPROVED SEPTEMBER 26, 1914, 38 STAT. 719; SEC. 2, CLAYTON ACT,
APPROVED OCTOBER 15, 1914, 38 STAT. 730; SEC. 2, CLAYTON ACT, AS
AMENDED BY THE ROBINSON-PATMAN ACT, APPROVED JUNE 19, 1936, 49 STAT.
1526, 15 U.S.C. SEC. 13; SEC. 5, FEDERAL TRADE COMMISSION ACT, AS
AMENDED, MARCH 21, 1938, 52 STAT. 111, 15 U.S.C. SEC. 45.  SEE BILL "TO
PREVENT UNNECESSARY AND WASTEFUL CROSS-HAULING" INTRODUCED BY SENATOR
WHEELER IN 1936 BANNING BASING-POINT SYSTEMS BY STATUTE, BUT NOT
REPORTED OUT OF COMMITTEE.  HEARINGS BEFORE SENATE COMMITTEE ON
INTERSTATE COMMERCE ON S. 4055, 74TH CONG., 2D SESS. (1936), AND SEE P.
325.  SEE ALSO, H.R. REP. NO. 2287, 74TH CONG., 2D SESS. 14(1936), AND
DEBATES UPON THE ROBINSON-PATMAN BILL, 80 CONG. REC. 8102, 8118, 8140,
8223-8224(1936). 
..END :























ANDRES V. UNITED STATES, 333 U.S. 740 


NO. 431.  ARGUED FEBRUARY 5, 1948.  - DECIDED APRIL 26, 1948.  - 163
F.2D 468, REVERSED. 


1.  WHETHER A VERDICT OF GUILTY IN A PROSECUTION IN A FEDERAL COURT
FOR MURDER IN THE FIRST DEGREE SHOULD BE QUALIFIED BY ADDING THERETO
"WITHOUT CAPITAL PUNISHMENT," AS AUTHORIZED BY 18 U.S.C. SEC. 567, IS
ENTIRELY WITHIN THE DISCRETION OF THE JURY; AND THE INSTRUCTIONS OF THE
TRIAL COURT ON THIS POINT IN THE INSTANT CASE WERE ADEQUATE.  PP. 742
744. 

2.  THERE WAS NO MATERIAL ERROR IN THE TRIAL COURT'S USE, IN ITS
INSTRUCTIONS IN THIS CASE, OF CERTAIN LANGUAGE OBJECTED TO BY THE
PETITIONER AS INDICATING TO THE JURY THAT THE GRAND JURY HAD FOUND THAT
HE WAS PROBABLY GUILTY OF MURDER IN THE FIRST DEGREE - ALTHOUGH THE
LANGUAGE WAS MISLEADING WHEN READ OUT OF CONTEXT AND COULD WELL HAVE
BEEN OMITTED.  PP. 744-745. 

3.  IN THE PROVISION OF 18 U.S.C. SEC. 542 THAT "THE MANNER OF
INFLICTING THE PUNISHMENT OF DEATH SHALL BE THE MANNER PRESCRIBED BY
THE LAWS OF THE STATE WITHIN WHICH THE SENTENCE IS IMPOSED," THE WORD
"STATE" INCLUDES THE TERRITORY OF HAWAII.  P. 745. 

4.  WHERE AN ACCUSED IN A PROSECUTION IN A FEDERAL COURT FOR MURDER
IN THE FIRST DEGREE IS FOUND GUILTY, THE VERDICT OF THE JURY, UNDER 18
U.S.C. SEC. 567, MUST BE UNANIMOUS BOTH AS TO GUILT AND AS TO WHETHER
THE DEATH PENALTY SHOULD BE IMPOSED.  PP. 746-749. 

5.  IN A TRIAL IN A FEDERAL COURT FOR MURDER IN THE FIRST DEGREE, THE
INSTRUCTIONS TO THE JURY WERE SUCH THAT THE JURY MIGHT REASONABLY
CONCLUDE THAT, IF THEY AGREED UNANIMOUSLY UPON A VERDICT OF GUILTY BUT
COULD NOT AGREE UNANIMOUSLY AS TO WHETHER "WITHOUT CAPITAL PUNISHMENT"
SHOULD BE ADDED, THE VERDICT OF GUILTY MUST STAND UNQUALIFIED.  THE
JURY RETURNED AN UNQUALIFIED VERDICT OF GUILTY.  HELD:  THESE
INSTRUCTIONS DID NOT FULLY PROTECT THE ACCUSED, THE JUDGMENT IS
REVERSED AND THE CASE IS REMANDED FOR A NEW TRIAL.  PP. 749-752. 

ANDRES V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PETITIONER WAS CONVICTED IN THE UNITED STATES DISTRICT COURT FOR THE
TERRITORY OF HAWAII OF MURDER IN THE FIRST DEGREE AND WAS SENTENCED TO
DEATH BY HANGING.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  163 F.2D
468.  THIS COURT GRANTED CERTIORARI.  332 U.S. 843.  REVERSED AND
REMANDED FOR A NEW TRIAL, P. 752. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

ON DECEMBER 17, 1943, THE PETITIONER, TIMOTEO MARIANO ANDRES, WAS
INDICTED IN THE UNITED STATES DISTRICT COURT FOR THE TERRITORY OF
HAWAII FOR MURDER IN THE FIRST DEGREE.  18 U.S.C. SECS. 451, 452.  THE
INDICTMENT RECITED THAT ANDRES "ON OR ABOUT THE 23RD DAY OF NOVEMBER,
1943, AT CIVILIAN HOUSING AREA NO. 3, PEARL HARBOR, ISLAND OF OAHU,
SAID CIVILIAN HOUSING AREA NO. 3 BEING ON LANDS RESERVED OR ACQUIRED
FOR THE USE OF THE UNITED STATES OF AMERICA  ...  DID  ...  KILL  ...
CARMEN GAMI SAGUID  ...  "  ANDRES WAS TRIED BEFORE A JURY WHICH
RETURNED THIS VERDICT: 

"WE, THE JURY, DULY EMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE,
DO HEREBY FIND THE DEFENDANT, TIMOTEO MARIANO ANDRES, GUILTY OF MURDER
IN THE FIRST DEGREE." 

HE WAS SENTENCED TO DEATH BY HANGING.  HE APPEALED HIS CONVICTION TO
THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.  THAT COURT
AFFIRMED THE JUDGMENT OF THE LOWER COURT, UNANIMOUSLY.  163 F.2D 468. 
A PETITION FOR A WRIT OF CERTIORARI WAS FILED IN THIS COURT AND THAT
PETITION WAS GRANTED.  332 U.S. 843. 

FOUR QUESTIONS WERE PRESENTED IN THE PETITION FOR CERTIORARI.  THREE
OF THESE WE DO NOT CONSIDER OF SUFFICIENT DOUBT OR IMPORTANCE TO
JUSTIFY AN EXTENDED DISCUSSION.  WE SHALL DISPOSE OF THEM BEFORE WE
REACH WHAT IS, FOR US, THE DECISIVE ISSUE OF THIS CASE. 

ANDRES CONTENDS THAT 18 U.S.C. SEC. 567, FN1  AS INTERPRETED BY
WINSTON V. UNITED STATES, 172 U.S. 303,  FN2  REQUIRES THAT THE TRIAL
COURT EXPLAIN TO THE JURY THE SCOPE OF THEIR DISCRETION IN GRANTING
MERCY TO A DEFENDANT.  IN THE WINSTON CASE, THE JUDGE HAD CHARGED THE
JURY THAT THEY COULD NOT QUALIFY THEIR VERDICT EXCEPT "  ...  IN CASES
THAT COMMEND THEMSELVES TO THE GOOD JUDGMENT OF THE JURY, CASES THAT
HAVE PALLIATING CIRCUMSTANCES WHICH WOULD SEEM TO JUSTIFY AND REQUIRE
IT."  172 U.S. AT 306.  THIS COURT HELD THAT INSTRUCTION ERRONEOUS. 
THE COURT READ THE STATUTE TO PLACE THE QUESTION WHETHER THE ACCUSED
SHOULD OR SHOULD NOT BE CAPITALLY PUNISHED ENTIRELY WITHIN THE
DISCRETION OF THE JURY; AN EXERCISE OF THAT DISCRETION COULD BE BASED
UPON ANY CONSIDERATION WHICH APPEALED TO THE JURY.  FN3  IN THE CASE
NOW BEFORE US, THE TRIAL JUDGE GAVE THE INSTRUCTIONS SET FORTH IN THE
MARGIN.  FN4  IT IS CLEAR THAT HE LEFT THE QUESTION OF THE PUNISHMENT
TO BE IMPOSED - DEATH OR LIFE IMPRISONMENT - TO THE DISCRETION OF THE
JURY.  WE HOLD THAT THE TRIAL JUDGE'S INSTRUCTIONS ON THIS ISSUE
SATISFIED THE REQUIREMENTS OF THE STATUTE. 

IT IS NEXT CONTENDED THAT THE TRIAL WAS UNFAIR BECAUSE THE
INSTRUCTIONS QUOTED BELOW  FN5 INDICATED TO THE JURY THAT THE
INDICTMENT AGAINST THE PETITIONER REFLECTED A FINDING BY THE GRAND JURY
THAT HE WAS PROBABLY GUILTY OF THE CRIME OF MURDER IN THE FIRST
DEGREE.  PERHAPS THE ITALICIZED LANGUAGE IN THE CHARGE, READ OUT OF
CONTEXT, IS MISLEADING AND IT MIGHT HAVE BEEN BETTER TO OMIT IT
COMPLETELY.  HOWEVER, WHEN THE LANGUAGE COMPLAINED OF IS READ IN
CONTEXT, IT SEEMS TO US THAT THE PETITIONER HAD NO REAL GROUND FOR
COMPLAINT.  NO MATERIAL ERROR RESULTED FROM THE WORDS. 

THE PETITIONER ALSO ARGUES THAT THE DISTRICT COURT FOR THE TERRITORY
OF HAWAII DID NOT HAVE THE POWER TO SENTENCE HIM TO DEATH BY HANGING. 
18 U.S.C. SEC. 542 PROVIDES:  "THE MANNER OF INFLICTING THE PUNISHMENT
OF DEATH SHALL BE THE MANNER PRESCRIBED BY THE LAWS OF THE STATE WITHIN
WHICH THE SENTENCE IS IMPOSED.  ...  IF THE LAWS OF THE STATE WITHIN
WHICH SENTENCE IS IMPOSED MAKE NO PROVISION FOR THE INFLICTION OF THE
PENALTY OF DEATH, THEN THE COURT SHALL DESIGNATE SOME OTHER STATE IN
WHICH SUCH SENTENCE SHALL BE EXECUTED IN THE MANNER PRESCRIBED BY THE
LAWS THEREOF."  THE PETITIONER CONTENDS THAT THE PHRASE "LAWS OF THE
STATE" LIMITS THE STATUTE TO THE FORTY-EIGHT STATES AND, CONSEQUENTLY,
PROVIDES FOR NO METHOD OF INFLICTING THE DEATH PENALTY WHERE THAT
SENTENCE IS IMPOSED BY A DISTRICT COURT SITTING IN A TERRITORY.  FN6 WE
REJECT THAT CONTENTION AS BEING WITHOUT MERIT.  IN MANY CONTEXTS
"STATE" MAY MEAN ONLY THE SEVERAL STATES OF THE UNITED STATES.  HERE,
HOWEVER, WE HOLD THAT ITS MEANING INCLUDES THE TERRITORY OF HAWAII. 

THE LAST AND MOST DIFFICULT ISSUE RAISED BY ANDRES IS THE QUESTION OF
THE PROPRIETY OF THOSE INSTRUCTIONS BY WHICH THE TRIAL JUDGE ATTEMPTED
TO EXPLAIN TO THE JURY THE REQUIREMENTS OF UNANIMITY IN THEIR VERDICT. 
THIS ISSUE IS A COMPOSITE OF TWO PROBLEMS:  (1) THE PROPER CONSTRUCTION
OF 18 U.S.C. SEC. 567; AND (2) THE CONSIDERATION OF WHETHER THE
INSTRUCTION GIVEN CLEARLY CONVEYED TO THE JURY THE CORRECT STATUTORY
MEANING. 

ACCUSED IS FOUND GUILTY OF THE CRIME OF MURDER IN THE FIRST DEGREE  ...
THE JURY MAY QUALIFY THEIR VERDICT BY ADDING THERETO 'WITHOUT CAPITAL
PUNISHMENT'; AND WHENEVER THE JURY SHALL RETURN A VERDICT QUALIFIED AS
AFORESAID, THE PERSON CONVICTED SHALL BE SENTENCED TO IMPRISONMENT FOR
LIFE."  IF A QUALIFIED VERDICT IS NOT RETURNED, THE DEATH PENALTY IS
MANDATORY.  FN7  THE GOVERNMENT ARGUES THAT SEC. 567 PROPERLY CONSTRUED
REQUIRES THAT THE JURY FIRST UNANIMOUSLY DECIDE THE GUILT OF THE
ACCUSED AND, THEN, WITH THE SAME UNANIMITY DECIDE WHETHER A QUALIFIED
VERDICT SHALL BE RETURNED.  AS THE STATUTE REQUIRES THE DEATH PENALTY
ON A VERDICT OF GUILTY, THE CONTENTION IS THAT THE JURY ACTS
UNANIMOUSLY IN FINDING GUILT AND THE LAW EXACTS THE PENALTY.  IT
FOLLOWS, THAT IF ALL TWELVE OF THE JURORS CANNOT AGREE TO ADD THE WORDS
"WITHOUT CAPITAL PUNISHMENT," THE ORIGINAL VERDICT OF GUILT STANDS AND
THE PUNISHMENT OF DEATH MUST BE IMPOSED.  THE PETITIONER CONTENDS THAT
SEC. 567 MUST BE CONSTRUED TO REQUIRE UNANIMITY IN RESPECT TO BOTH
GUILT AND PUNISHMENT BEFORE A VERDICT CAN BE RETURNED.  IT FOLLOWS THAT
ONE JUROR CAN PREVENT A VERDICT WHICH REQUIRES THE DEATH PENALTY,
ALTHOUGH THERE IS UNANIMITY IN FINDING THE ACCUSED GUILTY OF MURDER IN
THE FIRST DEGREE.  THE CIRCUIT COURT OF APPEALS HELD THAT UNANIMITY OF
THE JURY WAS REQUIRED BOTH AS TO GUILT AND THE REFUSAL TO QUALIFY THE
VERDICT BY THE WORDS "WITHOUT CAPITAL PUNISHMENT."  IT INTERPRETED THE
INSTRUCTIONS, HOWEVER, AS REQUIRING THIS UNANIMITY. 

THE FIRST CONGRESS OF THE UNITED STATES PROVIDED IN AN ACT OF APRIL
30, 1790:  "THAT IF ANY PERSON OR PERSONS SHALL, WITHIN ANY FORT,
ARSENAL, DOCK-YARD, MAGAZINE, OR IN ANY OTHER PLACE OR DISTRICT OF
COUNTRY, UNDER THE SOLE AND EXCLUSIVE JURISDICTION OF THE UNITED
STATES, COMMIT THE CRIME OF WILFUL MURDER, SUCH PERSON OR PERSONS ON
BEING THEREOF CONVICTED SHALL SUFFER DEATH."  FN8  THIS WAS THE FEDERAL
LAW, IN THE RESPECTS HERE RELEVANT, UNTIL 1897.  IN THAT YEAR CONGRESS
PASSED AND THE PRESIDENT SIGNED THE ACT OF JANUARY 15, 1897.  FN9  THAT
STATUTE PROVIDED: 

"THAT IN ALL CASES WHERE THE ACCUSED IS FOUND GUILTY OF THE CRIME OF
MURDER OR OF RAPE UNDER SECTIONS FIFTY-THREE HUNDRED AND THIRTY-NINE OR
FIFTY-THREE HUNDRED AND FORTY-FIVE, REVISED STATUTES, THE JURY MAY
QUALIFY THEIR VERDICT BY ADDING THERETO 'WITHOUT CAPITAL PUNISHMENT;'
AND WHENEVER THE JURY SHALL RETURN A VERDICT QUALIFIED AS AFORESAID THE
PERSON CONVICTED SHALL BE SENTENCED TO IMPRISONMENT AT HARD LABOR FOR
LIFE." 

IT IS THIS LANGUAGE, SUBSTANTIALLY UNCHANGED, WHICH WE MUST CONSTRUE
IN THIS CASE.  FN10 

THE REPORTS OF THE CONGRESSIONAL COMMITTEES AND THE DEBATES ON THE
FLOOR OF CONGRESS DO NOT DISCUSS THE PARTICULAR PROBLEM WITH WHICH WE
ARE NOW CONCERNED.  FN11  THERE ARE, HOWEVER, MANY EXPRESSIONS WHICH
INDICATE THAT THE GENERAL PURPOSE OF THE STATUTE WAS TO LIMIT THE
SEVERITY OF THE OLD LAW.  FN12 

UNANIMITY IN JURY VERDICTS IS REQUIRED WHERE THE SIXTH AND SEVENTH
AMENDMENTS APPLY.  FN13  IN CRIMINAL CASES THIS REQUIREMENT OF
UNANIMITY EXTENDS TO ALL ISSUES - CHARACTER OR DEGREE OF THE CRIME,
GUILT AND PUNISHMENT - WHICH ARE LEFT TO THE JURY.  A VERDICT EMBODIES
IN A SINGLE FINDING THE CONCLUSIONS BY THE JURY UPON ALL THE QUESTIONS
SUBMITTED TO IT.  WE DO NOT THINK THAT THE GRANT OF AUTHORITY TO THE
JURY BY SEC. 567 TO QUALIFY THEIR VERDICT PERMITS A PROCEDURE WHEREBY A
UNANIMOUS JURY MUST FIRST FIND GUILT AND THEN A UNANIMOUS JURY
ALLEVIATE ITS RIGOR.  THEREFORE, ALTHOUGH THE INTERPRETATION OF SEC.
567 URGED BY THE GOVERNMENT CANNOT BE PROVEN ERRONEOUS WITH CERTAINTY,
SINCE THE STATUTE CONTAINS NO LANGUAGE SPECIFICALLY REQUIRING UNANIMITY
ON BOTH GUILT AND PUNISHMENT BEFORE A VERDICT CAN BE BROUGHT IN, WE
CONCLUDE THAT THE CONSTRUCTION PLACED UPON THE STATUTE BY THE LOWER
COURT IS CORRECT - THAT THE JURY'S DECISION UPON BOTH GUILT AND WHETHER
THE PUNISHMENT OF DEATH SHOULD BE IMPOSED MUST BE UNANIMOUS.  THIS
CONSTRUCTION IS MORE CONSONANT WITH THE GENERAL HUMANITARIAN PURPOSE OF
THE STATUTE AND THE HISTORY OF THE ANGLO-AMERICAN JURY SYSTEM THAN THAT
PRESENTED BY THE GOVERNMENT.  FN14 

THE ONLY QUESTION REMAINING FOR DECISION IS WHETHER THE INSTRUCTIONS
GIVEN BY THE TRIAL JUDGE CLEARLY CONVEYED TO THE JURY A CORRECT
UNDERSTANDING OF THE STATUTE.  THERE WAS A GENERAL CHARGE THAT "THE
UNANIMOUS AGREEMENT OF THE JURY IS NECESSARY TO A VERDICT."  LATER, AND
THE INSTRUCTIONS ON THE SPECIFIC ISSUE UNDER CONSIDERATION CAN BEST BE
UNDERSTOOD BY THE COLLOQUY, THE FOLLOWING TOOK PLACE: 

"(AT 3:45 O'CLOCK, P.M., THE JURY RETURNED TO THE COURTROOM, AND THE
FOLLOWING OCCURRED:) 

"THE COURT:  NOTE THE PRESENCE OF THE JURY AND THE DEFENDANT TOGETHER
WITH HIS ATTORNEY.  I AM ADVISED BY THE BAILIFF THAT THE JURY WISHES TO
ASK THE COURT A QUESTION.  WHICH GENTLEMEN IS THE FOREMAN - YOU, MR.
HAM?  YOU ARE MR. HAM? 

"THE FOREMAN:  ...  THE MEMBERS OF THE JURY WOULD LIKE TO KNOW IF A
VERDICT OF GUILTY IN THE FIRST DEGREE WAS BROUGHT IN, WHETHER IT WOULD
BE MANDATORY ON THE PART OF THE JUDGE TO SENTENCE THE MAN TO DEATH, OR
HANGING, OR USE HIS OWN DISCRETION. 

"THE COURT:  JUST A MINUTE.  I WANT TO BE RIGHT IN MY ANSWER.  YOU
MAY SIT DOWN.  WILL THE COUNSEL COME TO THE BENCH, PLEASE?  (DISCUSSION
OFF THE RECORD.) 

"THE COURT:  GENTLEMEN OF THE JURY, THE STATUTE, AS I RECALL, ANSWERS
THAT QUESTION, BUT I WANTED TO LOOK AT IT ONCE AGAIN BEFORE I GAVE YOU
A POSITIVE ANSWER.  THE ANSWER TO THE QUESTION IS THAT, IN THE ABSENCE
OF A QUALIFIED VERDICT, IF THE VERDICT IS GUILTY OF MURDER IN THE FIRST
DEGREE, THE COURT HAS NO DISCRETION, FOR THE STATUTE PROVIDES IN SUCH
EVENT THAT THE PERSON SO CONVICTED OF SUCH AN OFFENSE - MURDER IN THE
FIRST DEGREE - SHALL SUFFER THE PUNISHMENT OF DEATH.  AS I TOLD YOU IN
YOUR INSTRUCTIONS, THERE IS ANOTHER FEDERAL STATUTE WHICH ENABLES YOU
GENTLEMEN TO QUALIFY YOUR VERDICT AND TO ADD, IN THE EVENT YOU SHOULD
FIND THE PERSON GUILTY OF MURDER IN THE FIRST DEGREE, TO ADD TO THAT
VERDICT, I REPEAT, THE PHRASE 'WITHOUT CAPITAL PUNISHMENT.'  IN THAT
EVENT THE MAN, OF COURSE, UNDER THE STATUTE SO CONVICTED WOULD NOT
SUFFER THE PUNISHMENT OF DEATH BUT IT WOULD LIFE IMPRISONMENT, AS I
RECALL IT UNDER THE STATUTE. 

"DOES THAT ANSWER YOUR QUESTION? 

"THE FOREMAN:  YES. 

"THE COURT:  DON'T DISCUSS YOUR PROBLEMS HERE, BUT IF IT IS AN ANSWER
TO YOUR QUESTION, YOU GENTLEMEN CAN RETIRE TO YOUR JURY ROOM IF THERE
ARE NO OTHER QUESTIONS. 

"THE FOREMAN:  NO OTHER. 

"THE COURT:  COUNSEL HAVE ASKED ME TO REREAD THE INSTRUCTIONS TO YOU
ON THAT PARTICULAR POINT AS AN AMPLIFICATION OF MY ANSWER TO YOUR
QUESTION.  WILL YOU BEAR WITH ME JUST A MOMENT UNTIL I FIND THAT
INSTRUCTION?  I WILL REREAD ONE OR TWO INSTRUCIONS TO YOU WHICH BEAR ON
THE QUESTION WHICH YOU HAVE ASKED: 

"'YOU MAY RETURN A QUALIFIED VERDICT IN THIS CASE BY ADDING THE WORDS
"WITHOUT CAPITAL PUNISHMENT" TO YOUR VERDICT.  THIS POWER IS CONFERRED
SOLELY UPON 

YOU AND IN THIS CONNECTION THE COURT CAN NOT EXTEND OR PRESCRIBE TO
YOU ANY DEFINITE RULE DEFINING THE EXERCISE OF THIS POWER, BUT COMMITS
THE ENTIRE MATTER OF ITS EXERCISE TO YOUR JUDGMENT.' 

"'EVEN IF YOU SHOULD UNANIMOUSLY AGREE FROM THE EVIDENCE BEYOND ALL
REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY AS CHARGED, YOU MAY, AS I
HAVE SAID, QUALIFY YOUR VERDICT BY ADDING THERETO "WITHOUT CAPITAL
PUNISHMENT," IN WHICH CASE THE DEFENDANT SHALL NOT SUFFER THE DEATH
PENALTY.' 

"'IN THIS CONNECTION, I FURTHER INSTRUCT YOU THAT YOU ARE AUTHORIZED
TO ADD TO YOUR VERDICT THE WORDS "WITHOUT CAPITAL PUNISHMENT," AND THIS
YOU MAY DO NO MATTER WHAT THE EVIDENCE MAY BE AND WITHOUT REGARD TO THE
EXISTENCE OF MITIGATING CIRCUMSTANCES.' 

"AND, FINALLY, YOU WILL RECALL I SAID THAT YOU ARE INSTRUCTED THAT
BEFORE YOU MAY RETURN A QUALIFIED VERDICT OF MURDER IN THE FIRST DEGREE
WITHOUT CAPITAL PUNISHMENT, THAT YOUR DECISION TO DO SO MUST, LIKE YOUR
REGULAR VERDICT, BE UNANIMOUS." 

THE GOVERNMENT CONCEDES THAT, IF THE PETITIONER'S INTERPRETATION OF
SEC. 567 IS ACCEPTED, THESE INSTRUCTIONS WERE INADEQUATE; AND WE FIND
OURSELVES IN AGREEMENT WITH THIS CONCESSION.  THE COURT BELOW CONCLUDED
THAT THE INSTRUCTIONS WERE PROPER AND THAT THEY DID NOT MISLEAD THE
JURY.  FN15 IT BASED ITS CONCLUSION UPON TWO FACTORS:  (1) THE COMMON
UNDERSTANDING OF JURORS THAT "THEY ARE UNDER NO LEGAL COMPULSION TO
JOIN IN A VERDICT WITH WHICH THEY ARE IN DISAGREEMENT, EITHER IN WHOLE
OR IN PART  ...  "; FN16  AND (2) THE GENERAL ADMONITION OF THE TRIAL
JUDGE THAT "THE UNANIMOUS AGREEMENT OF THE JURY IS NECESSARY TO A
VERDICT."  FN17    IT SEEMS TO US, HOWEVER, THAT WHERE A JURY IS TOLD
FIRST THAT THEIR VERDICT MUST BE UNANIMOUS, AND LATER, IN RESPONSE TO A
QUESTION DIRECTED TO THE PARTICULAR PROBLEM OF QUALIFIED VERDICTS, THAT
IF THEIR VERDICT IS FIRST-DEGREE MURDER AND THEY DESIRE TO QUALIFY IT,
THEY MUST BE UNANIMOUS IN SO DOING, THE JURY MIGHT REASONABLY CONCLUDE
THAT, IF THEY CANNOT ALL AGREE TO GRANT MERCY, THE VERDICT OF GUILT
MUST STAND UNQUALIFIED.  THAT REASONABLE MEN MIGHT DERIVE A MEANING
FROM THE INSTRUCTIONS GIVEN OTHER THAN THE PROPER MEANING OF SEC. 567
IS PROBABLE.  IN DEATH CASES DOUBTS SUCH AS THOSE PRESENTED HERE SHOULD
BE RESOLVED IN FAVOR OF THE ACCUSED.  THE CONTEXT OF SEC. 567 DOES NOT
DEFY ACCURATE AND PRECISE EXPRESSION.  FOR EXAMPLE:  AN INSTRUCTION
THAT A JUROR SHOULD NOT JOIN A VERDICT OF GUILTY, WITHOUT
QUALIFICATION, IF HE IS CONVINCED THAT CAPITAL PUNISHMENT SHOULD NOT BE
INFLICTED, WOULD HAVE SATISFIED THE STATUTE AND PROTECTED THE
DEFENDANT.  OR THE JURY MIGHT HAVE BEEN INSTRUCTED THAT ITS CONCLUSION
ON BOTH GUILT AND PUNISHMENT MUST BE UNANIMOUS BEFORE ANY VERDICT COULD
BE FOUND. 

AS WE ARE OF THE OPINION THAT THE INSTRUCTIONS GIVEN ON THIS ISSUE
DID NOT FULLY PROTECT THE PETITIONER, THE JUDGMENT OF THE LOWER COURT
IS REVERSED AND THE CASE IS REMANDED FOR A NEW TRIAL.  REVERSED. 

FN1  "IN ALL CASES WHERE THE ACCUSED IS FOUND GUILTY OF THE CRIME OF
MURDER IN THE FIRST DEGREE, OR RAPE, THE JURY MAY QUALIFY THEIR VERDICT
BY ADDING THERETO 'WITHOUT CAPITAL PUNISHMENT'; AND WHENEVER THE JURY
SHALL RETURN A VERDICT QUALIFIED AS AFORESAID, THE PERSON CONVICTED
SHALL BE SENTENCED TO IMPRISONMENT FOR LIFE." 

FN2  IN WINSTON V. UNITED STATES, SUPRA, THE QUESTION PRESENTED WAS
THE PROPER CONSTRUCTION OF SEC. 1 OF THE ACT OF JANUARY 15, 1897.  29
STAT. 487.  18 U.S.C. SEC. 567, IN ITS RELEVANT PART, HAS LANGUAGE
IDENTICAL TO THAT OF THE EARLIER STATUTE. 

FN3  172 U.S. AT 312-13: 

"THE RIGHT TO QUALIFY A VERDICT OF GUILTY, BY ADDING THE WORDS
'WITHOUT CAPITAL PUNISHMENT,' IS THUS CONFERRED UPON THE JURY IN ALL
CASES OF MURDER.  THE ACT DOES NOT ITSELF PRESCRIBE, NOR AUTHORIZE THE
COURT TO PRESCRIBE, ANY RULE DEFINING OR CIRCUMSCRIBING THE EXERCISE OF
THIS RIGHT; BUT COMMITS THE WHOLE MATTER OF ITS EXERCISE TO THE
JUDGMENT AND THE CONSCIENCES OF THE JURY.  THE AUTHORITY OF THE JURY TO
DECIDE THAT THE ACCUSED SHALL NOT BE PUNISHED CAPITALLY IS NOT LIMITED
TO CASES IN WHICH THE COURT, OR THE JURY, IS OF OPINION THAT THERE ARE
PALLIATING OR MITIGATING CIRCUMSTANCES.  BUT IT EXTENDS TO EVERY CASE
IN WHICH, UPON A VIEW OF THE WHOLE EVIDENCE, THE JURY IS OF OPINION
THAT IT WOULD NOT BE JUST OR WISE TO IMPOSE CAPITAL PUNISHMENT.  HOW
FAR CONSIDERATIONS OF AGE, SEX, IGNORANCE, ILLNESS OR INTOXICATION, OF
HUMAN PASSION OR WEAKNESS, OF SYMPATHY OR CLEMENCY, OR THE
IRREVOCABLENESS OF AN EXECUTED SENTENCE OF DEATH, OR AN APPREHENSION
THAT EXPLANATORY FACTS MAY EXIST WHICH HAVE NOT BEEN BROUGHT TO LIGHT,
OR ANY OTHER CONSIDERATION WHATEVER, SHOULD BE ALLOWED WEIGHT IN
DECIDING THE QUESTION WHETHER THE ACCUSED SHOULD OR SHOULD NOT BE
CAPITALLY PUNISHED, IS COMMITTED BY THE ACT OF CONGRESS TO THE SOUND
DISCRETION OF THE JURY, AND OF THE JURY ALONE." 

FN4  "I INSTRUCT YOU THAT YOU MAY RETURN A QUALIFIED VERDICT IN THIS
CASE BY ADDING THE WORDS 'WITHOUT CAPITAL PUNISHMENT' TO YOUR VERDICT. 
THIS POWER IS CONFERRED SOLELY UPON YOU AND IN THIS CONNECTION THE
COURT CAN NOT EXTEND OR PRESCRIBE TO YOU ANY DEFINITE RULE DEFINING THE
EXERCISE OF THIS POWER, BUT COMMITS THE ENTIRE MATTER OF ITS EXERCISE
TO YOUR JUDGMENT. 

"I INSTRUCT YOU, GENTLEMEN OF THE JURY THAT EVEN IF YOU SHOULD
UNANIMOUSLY AGREE FROM THE EVIDENCE BEYOND ALL REASONABLE DOUBT THAT
THE DEFENDANT IS GUILTY AS CHARGED, YOU MAY QUALIFY YOUR VERDICT BY
ADDING THERETO 'WITHOUT CAPITAL PUNISHMENT' IN WHICH CASE THE DEFENDANT
SHALL NOT SUFFER THE DEATH PENALTY. 

"IN THIS CONNECTION, I FURTHER INSTRUCT YOU THAT YOU ARE AUTHORIZED
TO ADD TO YOUR VERDICT THE WORDS 'WITHOUT CAPITAL PUNISHMENT,' AND THIS
YOU MAY DO NO MATTER WHAT THE EVIDENCE MAY BE AND WITHOUT REGARD TO THE
EXISTENCE OF MITIGATING CIRCUMSTANCES." 

FN5  "TO THE INDICTMENT WHICH THE GRAND JURY RETURNED AGAINST THIS
DEFENDANT, THIS DEFENDANT ENTERED A PLEA OF NOT GUILTY.  THAT IS TO
SAY, HE DENIED THE CHARGE STATED IN THE INDICTMENT AND PLACED HIMSELF
UPON HIS COUNTRY FOR THE PURPOSE OF TRIAL.  THE BURDEN IS UPON THE
GOVERNMENT TO SHOW TO YOUR SATISFACTION, GENTLEMEN, THAT THIS DEFENDANT
IS GUILTY BEYOND EVERY REASONABLE DOUBT.  THIS BURDEN DOES NOT CHANGE
AT ANY TIME DURING THE COURSE OF THE TRIAL.  THE DEFENDANT IS PRESUMED
INNOCENT OF THE CHARGE STATED IN THE INDICTMENT UNTIL HE IS PROVEN
GUILTY BY THE DEGREE OF PROOF TO WHICH I HAVE PREVIOUSLY REFERRED.  THE
PRESUMPTION OF INNOCENCE IN FAVOR OF THE DEFENDANT IS NOT A MERE
FORMALITY TO BE DISREGARDED BY THE JURY AT ITS PLEASURE.  IT IS A
SUBSTANTIVE PART OF OUR CRIMINAL LAW.  THE PRESUMPTION OF INNOCENCE
CONTINUES WITH THE DEFENDANT THROUGHOUT THE TRIAL UNTIL YOU ARE
CONVINCED BY THE EVIDENCE THAT HE IS GUILTY BEYOND EVERY REASONABLE
DOUBT. 

"WHEN THE INDICTMENT WAS RETURNED BY THE GRAND JURY AGAINST THIS
DEFENDANT, THE DEFENDANT HAD HAD NO OPPORTUNITY TO PRESENT HIS SIDE OF
THE CASE.  THE INDICTMENT WAS FOUND BY THE GRAND JURY UPON EVIDENCE
PRESENTED TO IT BY THE GOVERNMENT ALONE, AND CREATED IN THE MINDS OF
THE GRAND JURY A BELIEF THAT IT WAS PROBABLE THAT A CRIME HAD BEEN
COMMITTED AND THAT THIS DEFENDANT PROBABLY COMMITTED THAT CRIME. 

"UPON THE EVIDENCE (WHICH) IT HEARD, THE GRAND JURY INDICTED THIS
DEFENDANT, THEREBY INDICATING THAT IT WAS PROBABLE THAT A CRIME HAD
BEEN COMMITTED, WHICH SHOULD BE DISPOSED OF IN THIS COURT WHERE BOTH
SIDES COULD BE HEARD, AND THIS IS THE STAGE WHICH WE HAVE NOW REACHED. 

"I ADVISE YOU, GENTLEMEN, THAT IT IS THE INDICTMENT IN THIS CASE
WHICH FRAMES THE ISSUES OF THE CASE." 

PETITIONER COMPLAINS OF THE ITALICIZED LANGUAGE. 

FN6  SECTION 542, BEFORE ITS AMENDMENT IN 1937, READ:  "THE MANNER OF
INFLICTING THE PUNISHMENT OF DEATH SHALL BE BY HANGING."  35 STAT.
1151.  THE CHANGES IN THE STATUTE FROM THAT LANGUAGE TO THE PRESENT
LANGUAGE WERE PROMPTED BY THE FACT THAT "MANY STATES  ...  USE (D) MORE
HUMANE METHODS OF EXECUTION, SUCH AS ELECTROCUTION, OR GAS.  ...
(THEREFORE,) IT APPEARED) DESIRABLE FOR THE FEDERAL GOVERNMENT LIKEWISE
TO CHANGE ITS LAW IN THIS RESPECT  ...  "  H.R. REP. NO. 164, 75TH
CONG., 1ST SESS., 1.  SINCE CONGRESS WAS WELL AWARE THAT FEDERAL COURTS
HAD JURISDICTION IN TERRITORIES AND POSSESSIONS, IT WOULD BE
INCONGRUOUS TO HOLD THAT THEY DID NOT USE THE WORD "STATE" TO COVER
SUCH AREAS.  THE PURPOSE OF THIS LEGISLATION WAS REMEDIAL:  THE
ADOPTION OF THE LOCAL MODE OF EXECUTION.  THE INTENT OF CONGRESS WOULD
BE FRUSTRATED BY CONSTRUING THE STATUTE TO CREATE THAT HIATUS FOR WHICH
THE PETITIONER CONTENDS. 

FN7  18 U.S.C. SEC. 454:  "EVERY PERSON GUILTY OF MURDER IN THE FIRST
DEGREE SHALL SUFFER DEATH.  ...  " 

FN8  1 STAT. 113. 

FN9  29 STAT. 487. 

FN10  THE ACT OF JANUARY 15, 1897, WAS INCORPORATED INTO THE CRIMINAL
CODE OF 1909 AS SEC. 330 WITH CHANGES THAT ARE HERE UNIMPORTANT.  35
STAT. 1152.  SECTION 330 OF THE CRIMINAL CODE IS NOW 18 U.S.C. SEC.
567. 

FN11  DISSATISFACTION OVER THE HARSHNESS AND ANTIQUITY OF THE FEDERAL
CRIMINAL LAWS LED IN 1894 TO THE INTRODUCTION BY N.M. CURTIS OF NEW
YORK OF A BILL TO REDUCE THE NUMBER OF CRIMES FOR WHICH THE PENALTY OF
DEATH COULD BE IMPOSED AND TO GIVE THE JURY THE RIGHT TO "QUALIFY THEIR
VERDICT (IN DEATH CASES) BY ADDING THERETO 'WITHOUT CAPITAL
PUNISHMENT.'"  SEE H.R. REP. NO. 545, 53D CONG., 2D SESS.  THE BILL AS
INTRODUCED DIVIDED MURDER INTO DEGREES, SECS. 1, 2 OF H.R. 5836, 53D
CONG., 2D SESS.; IT WAS PASSED BY THE HOUSE WITHOUT ANY SUBSTANTIAL
CHANGES.  27 CONG. REC. 823.  AFTER SEVERE AMENDMENT IT WAS FAVORABLY
REPORTED TO THE SENATE BY THE COMMITTEE ON THE JUDICIARY.  SEE S. REP.
NO. 846, 53D CONG., 3D SESS.  THESE AMENDMENTS, HOWEVER, DID NOT AFFECT
SEC. 5 OF THE ORIGINAL BILL, THE SECTION WHICH PROVIDED FOR QUALIFIED
VERDICTS; THAT SECTION WAS RETAINED AND BECAME SEC. 1 OF THE NEW BILL. 
ID. AT P. 2.  THE COMMITTEE, HOWEVER, "THOUGHT IT INADVISABLE TO MAKE
DEGREES IN THE CRIME OF MURDER, OR ATTEMPT NEW DEFINITIONS."  IBID.
CONSEQUENTLY, IT STRUCK OUT THE SECTIONS OF THE ORIGINAL BILL WHICH
CONCERNED THEMSELVES WITH THESE MATTERS.  THE COMMITTEE REPORT STATED
THAT "THE LEADING OBJECT OF THIS BILL IS TO DIMINISH THE INFLICTION OF
THE DEATH PENALTY BY LIMITING THE OFFENSES UPON WHICH IT IS DENOUNCED,
AND BY PROVIDING IN ALL CASES A LATITUDE IN THE TRIBUNAL WHICH SHALL
TRY THEM TO WITHHOLD THE EXTREMEST PUNISHMENT WHEN DEEMED TOO SEVERE." 
ID. AT P. 1.  THE BILL AS AMENDED WAS PASSED BY THE SENATE AND LATER BY
THE HOUSE. 

FN12  SEE NOTE 11, SUPRA; 28 CONG. REC. 2649-2650, 3098-3111, 3651. 

FN13  SEE AMERICAN PUBLISHING CO. V. FISHER, 166 U.S. 464. 

FN14  THIS CONCLUSION IS SUPPORTED BY SMITH V. UNITED STATES, 47 F.2D
518, WHICH, WITH THE EXCEPTION OF THE PRESENT CASE, APPEARS TO BE THE
ONLY FEDERAL DECISION ON THIS QUESTION. 

FN15  ANDRES V. UNITED STATES, 163 F.2D 468, 471. 

FN16  ID. AT P. 471. 

FN17  IBID. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

HAVING HAD MORE DIFFICULTY THAN DID MY BRETHREN IN REACHING THEIR
RESULT, I DEEM IT NECESSARY TO STATE MORE AT LENGTH THAN DOES THE
COURT'S OPINION THE REASONS THAT OUTWEIGH MY DOUBTS, WHICH HAVE NOT
BEEN WHOLLY DISSIPATED. 

THIS CASE AFFORDS A STRIKING ILLUSTRATION OF THE TASK CAST UPON
COURTS WHEN LEGISLATION IS MORE AMBIGUOUS THAN THE LIMITS OF REASONABLE
FORESIGHT IN DRAFTSMANSHIP JUSTIFY.  IT ALSO PROVES THAT WHEN THE
LEGISLATIVE WILL IS CLOUDED, WHAT IS CALLED JUDICIAL CONSTRUCTION HAS
AN INEVITABLE ELEMENT OF JUDICIAL CREATION.  CONSTRUCTION MUST MAKE A
CHOICE BETWEEN TWO MEANINGS, EQUALLY SUSTAINABLE AS A MATTER OF
RATIONAL ANALYSIS, ON CONSIDERATIONS NOT DERIVED FROM A MERE READING OF
THE TEXT. 

FOR THE FIRST HUNDRED YEARS OF THE ESTABLISHMENT OF THIS GOVERNMENT
ONE GUILTY OF MURDER IN THE FIRST DEGREE, UNDER FEDERAL LAW, WAS
SENTENCED TO DEATH.  SINCE 1897 A JURY, AFTER IT FOUND AN ACCUSED
"GUILTY OF THE CRIME OF MURDER IN THE FIRST DEGREE  ...  MAY QUALIFY
THEIR VERDICT BY ADDING THERETO 'WITHOUT CAPITAL PUNISHMENT;' AND
WHENEVER THE JURY SHALL RETURN A VERDICT QUALIFIED AS AFORESAID, THE
PERSON CONVICTED SHALL BE SENTENCED TO IMPRISONMENT FOR LIFE."  ACT OF
JANUARY 15, 1897, 29 STAT. 487, AS AMENDED, 35 STAT. 1151, 1152, SEC.
330 CRIMINAL CODE, 18 U.S.C. SEC. 567. 

THE STATUTE REFLECTS THE MOVEMENT, ACTIVE DURING THE NINETEENTH
CENTURY, AGAINST THE DEATH SENTENCE.  THE MOVEMENT WAS IMPELLED BOTH BY
ETHICAL AND HUMANITARIAN ARGUMENTS AGAINST CAPITAL PUNISHMENT, AS WELL
AS BY THE PRACTICAL CONSIDERATION THAT JURORS WERE RELUCTANT TO BRING
IN VERDICTS WHICH INEVITABLY CALLED FOR ITS INFLICTION.  ALMOST EVERY
STATE PASSED MITIGATING LEGISLATION.  FN1  ONLY FIVE STATES MET THE
DOUBTS AND DISQUIETUDES ABOUT CAPITAL PUNISHMENT BY ITS ABOLITION. 
MOST OF THE OTHER STATES PLACED IN THE JURY'S HANDS SOME POWER TO
RELIEVE FROM A DEATH SENTENCE.  BUT THE SCOPE OF A JURY'S POWER TO SAVE
ONE FOUND GUILTY OF MURDER IN THE FIRST DEGREE FROM A DEATH SENTENCE IS
BOUND TO GIVE RISE TO A PROBLEM OF STATUTORY CONSTRUCTION WHEN THE
LEGISLATION DOES NOT DEFINE THE POWER WITH EXPLICITNESS. 

A LEGISLATURE WHICH SEEKS TO RETAIN CAPITAL PUNISHMENT AS A POLICY
BUT DOES NOT MAKE ITS IMPOSITION AFTER A FINDING OF GUILTY IMPERATIVE
HAS THESE MAIN CHOICES THAT LEAVE LITTLE ROOM FOR CONSTRUCTION: 

(1)  LEGISLATION MAY LEAVE WITH THE JURY THE DUTY OF FINDING AN
ACCUSED GUILTY OF MURDER IN THE FIRST DEGREE BUT GIVE THEM THE RIGHT OF
REMISSION OF THE DEATH SENTENCE, PROVIDED THERE IS UNANIMOUS AGREEMENT
ON SUCH REMISSION.  ANY JUROR, OF COURSE, HAS IT IN HIS POWER TO
DEADLOCK A JURY OUT OF SHEER WILFULNESS OR UNREASONABLE OBSTINACY.  BUT
UNDER SUCH A STATUTE THE DUTY LAID UPON HIS CONSCIENCE IS TO FIND GUILT
IF THERE IS GUILT.  THE JURY CAN SAVE AN ACCUSED FROM DEATH ONLY IF
THEY CAN REACH A UNANIMOUS AGREEMENT TO RELIEVE FROM THE DOOM. 

(2)  THE LEGISLATURE MAY NOT REQUIRE UNANIMOUS AGREEMENT ON REMISSION
OF THE DEATH SENTENCE, BUT MAY MAKE SUCH REMISSION EFFECTIVE BY A
MAJORITY VOTE OF THE JURY, OR, AS IN THE CASE OF THE MISSISSIPPI
STATUTE, IT MAY EXPRESSLY PROVIDE THAT 

"EVERY PERSON WHO SHALL BE CONVICTED OF MURDER SHALL SUFFER DEATH,
UNLESS THE JURY RENDERING THE VERDICT SHALL FIX THE PUNISHMENT AT
IMPRISONMENT IN THE PENITENTIARY FOR THE LIFE OF THE CONVICT; OR UNLESS
THE JURY SHALL CERTIFY ITS DISAGREEMENT AS TO THE PUNISHMENT  ...  IN
WHICH CASE THE COURT SHALL FIX THE PUNISHMENT AT IMPRISONMENT FOR
LIFE."  (MISS.  CODE ANN. SEC. 2217(1942).) 

(3)  THE LEGISLATURE MAY REQUIRE THE JURY TO SPECIFY THE PUNISHMENT
IN THEIR VERDICT.  UNDER SUCH LEGISLATION IT IS NECESSARY FOR THE
JURY'S VERDICT NOT ONLY TO PRONOUNCE GUILT BUT ALSO TO PRESCRIBE THE
SENTENCE. 

(4)  THE JURY MAY BE AUTHORIZED TO QUALIFY THE TRADITIONAL VERDICT OF
GUILTY SO AS TO ENABLE THE COURT TO IMPOSE A SENTENCE OTHER THAN
DEATH.  THIS MAY BE ACCOMPLISHED BY GIVING SUCH DISCRETIONARY POWER TO
THE COURT SIMPLICITER, OR UPON RECOMMENDATION OF MERCY BY THE JURY. 

NONE OF THESE TYPES OF LEGISLATION WOULD LEAVE ANY REASONABLE DOUBT
AS TO THE POWER AND DUTY OF A JURY.  UNFORTUNATELY, THE ALLEVIATING
FEDERAL LEGISLATION OF 1897, TO WHICH THE COURT MUST NOW GIVE
AUTHORITATIVE MEANING, WAS NOT CAST IN ANY ONE OF THE FOREGOING FORMS. 
CONGRESS EXPRESSED ITSELF AS FOLLOWS:    "IN ALL CASES WHERE THE
ACCUSED IS FOUND GUILTY OF THE CRIME OF MURDER IN THE FIRST DEGREE, OR
RAPE, THE JURY MAY QUALIFY THEIR VERDICT BY ADDING THERETO 'WITHOUT
CAPITAL PUNISHMENT;' AND WHENEVER THE JURY SHALL RETURN A VERDICT
QUALIFIED AS AFORESAID, THE PERSON CONVICTED SHALL BE SENTENCED TO
IMPRISONMENT FOR LIFE."  (29 STAT. 487, AS AMENDED, 35 STAT. 1151,
1152, SEC. 330 CRIMINAL CODE, 18 U.S.C. SEC. 567.) 

THE FAIR SPONTANEOUS READING OF THIS PROVISION, IN CONNECTION WITH
SEC. 275 OF THE CRIMINAL CODE - "EVERY PERSON GUILTY OF MURDER IN THE
FIRST DEGREE SHALL SUFFER DEATH."  (35 STAT. 1143, 18 U.S.C. SEC. 454)
WOULD BE THAT CONGRESS HAS CONTINUED CAPITAL PUNISHMENT AS ITS POLICY;
THAT ONE FOUND GUILTY OF MURDER IN THE FIRST DEGREE MUST SUFFER DEATH
IF THE JURY REACHES SUCH A VERDICT BUT THAT "THE JURY MAY QUALIFY THEIR
VERDICT BY ADDING THERETO 'WITHOUT CAPITAL PUNISHMENT;'" THAT, SINCE
FEDERAL JURY ACTION REQUIRES UNANIMITY, WHEN UNANIMITY IS NOT ATTAINED
BY THE JURY IN ORDER TO "QUALIFY THEIR VERDICT" BY "ADDING" THE PHRASE
OF ALLEVIATION, THE VERDICT OF MURDER IN THE FIRST DEGREE ALREADY
REACHED MUST STAND.  CERTAINLY, IF CONSTRUCTION CALLED FOR NO MORE THAN
READING THE LEGISLATION OF CONGRESS AS WRITTEN BY CONGRESS, TO
INTERPRET IT AS JUST INDICATED WOULD NOT BE BLINDLY LITERAL READING OF
LEGISLATION IN DEFIANCE OF THE INJUNCTION THAT THE LETTER KILLETH.  ON
THE CONTRARY, IT WOULD HEED THE DOMINANT POLICY OF CONGRESS THAT "EVERY
PERSON GUILTY OF MURDER IN THE FIRST DEGREE SHALL SUFFER DEATH" UNLESS
THE JURY "QUALIFY THEIR VERDICT BY ADDING THERETO" THE TERMS OF
REMISSION. 

BUT IN A MATTER OF THIS SORT JUDGES DO NOT READ WHAT CONGRESS WROTE
AS THOUGH IT WERE MERELY A LITERARY COMPOSITION.  SUCH LEGISLATION IS
AN AGENCY OF CRIMINAL JUSTICE AND NOT A MERE DOCUMENT.  WHILE THE
PROPER CONSTRUCTION OF THE POWER OF QUALIFICATION ENTRUSTED TO THE JURY
BY THE ACT OF 1897 IS BEFORE US FOR THE FIRST TIME UPON FULL
CONSIDERATION, THE ISSUE WAS ADJUDICATED MORE THAN SEVENTEEN YEARS AGO
BY ONE OF THE CIRCUIT COURTS OF APPEALS.  IT REJECTED THE CONSTRUCTION
FOR WHICH THE GOVERNMENT NOW CONTENDS.  SMITH V. UNITED STATES, 47 F.2D
518.  WHILE A FAILURE OF THE GOVERNMENT TO SEEK A REVIEW OF THAT
DECISION BY THIS COURT HAS NO LEGAL SIGNIFICANCE, ACQUIESCENCE BY THE
GOVERNMENT IN AN IMPORTANT RULING IN THE ADMINISTRATION OF THE CRIMINAL
LAW, PARTICULARLY ONE AFFECTING THE CRIME OF MURDER, CARRIES INTRINSIC
IMPORTANCE WHERE THE CONSTRUCTION IN WHICH THE GOVERNMENT ACQUIESCED IS
NOT ONE THAT OBVIOUSLY IS REPELLED BY THE POLICY WHICH PRESUMABLY
CONGRESS COMMANDED. 

MOREOVER, WE ARE DEALING WITH A FIELD MUCH CLOSER TO THE EXPERIENCE
OF THE STATE COURTS, AS THE GUARDIANS OF THOSE DEEP INTERESTS OF
SOCIETY WHICH ARE REFLECTED IN LEGISLATION DEALING WITH THE PUNISHMENT
FOR MURDER AND WHICH ARE PREDOMINANTLY THE CONCERN OF THE STATES.  FN2
IF THE STRONGEST CURRENT OF OPINION IN STATE COURTS DEALING WITH
LEGISLATION SUBSTANTIALLY AS AMBIGUOUS AS THAT BEFORE US HAS RESOLVED
THE AMBIGUITY IN THE WAY IN WHICH THE CIRCUIT COURT OF APPEALS FOR THE
NINTH CIRCUIT RESOLVED IT IN THE SMITH CASE, THE MOMENTUM OF SUCH A
CURRENT SHOULD PROPERLY CARRY US TO THE SAME CONCLUSION.  HISTORY AND
EXPERIENCE OUTWEIGH CLAIMS OF VIRGIN ANALYSIS OF A STATUTE WHICH HAS
SUCH WIDE SCOPE THROUGHOUT THE COUNTRY AND THE INCIDENCE OF WHICH IS
FAR GREATER IN THE STATE COURTS THAN IN THE FEDERAL COURTS.  THIS WAS
THE APPROACH OF THE COURT IN WINSTON V. UNITED STATES, 172 U.S. 303,
WHERE WE HELD, AFTER REVIEWING THE STATE LEGISLATION AND ADJUDICATION,
THAT THE STATUTE DID NOT LIMIT THE JURY'S DISCRETION TO CASES WHERE
THERE WERE PALLIATING OR MITIGATING CIRCUMSTANCES. 

AND SO WE TURN TO STATE LAW. 

A. IN ONLY FOUR STATES IS DEATH THE INEVITABLE PENALTY FOR MURDER IN
THE FIRST DEGREE: CONNECTICUT, MASSACHUSETTS, NORTH CAROLINA, AND
VERMONT.  SUCH HAS BEEN, UNTIL THE OTHER DAY, THE LAW OF ENGLAND
DESPITE PERSISTENT AND IMPRESSIVE EFFORTS TO MODITY IT.  SEE, E.G.,
MINUTES OF EVIDENCE AND REPORT OF THE SELECT COMMITTEE ON CAPITAL
PUNISHMENT (1930).  IT IS WORTHY OF NOTE THAT THIS EFFORT HAS JUST
PREVAILED BY THE PASSAGE, ON A FREE VOTE, OF A PROVISION ABOLISHING THE
DEATH PENALTY FOR AN EXPERIMENTAL PERIOD OF FIVE YEARS.  SEE 449 H.C.
DEB.  (HANSARD) CLS. 981 ET SEQ. (APRIL 14, 1948), AND STATEMENT OF THE
HOME SECRETARY THAT DEATH SENTENCES WILL BE SUSPENDED ON THE BASIS OF
THIS VOTE, EVEN BEFORE THE MEASURE GETS ON THE STATUTE BOOKS.  ID.,
CLS. 1307 ET SEQ. (APRIL 16, 1948). 

B. IN FIVE STATES THE DEATH SENTENCE HAS BEEN ABOLISHED FOR MURDER IN
THE FIRST DEGREE:  MAINE, MICHIGAN, MINNESOTA, RHODE ISLAND, AND
WISCONSIN. 

C. MOST OF THE STATES - 39 OF THEM - LEAVE SCOPE FOR WITHHOLDING THE
DEATH SENTENCE.  THE STATE ENACTMENTS GREATLY VARY AS TO THE EXTENT OF
THIS POWER OF ALLEVIATION AND IN THE MANNER OF ITS EXERCISE, AS BETWEEN
COURT AND JURY. 

I. IN THREE STATES A JURY'S RECOMMENDATION OF LIFE IMPRISONMENT IS
NOT BINDING ON THE TRIAL COURT:  DELAWARE, NEW MEXICO, AND UTAH. 

II.  IN FIFTEEN STATES THE JURY'S VERDICT MUST SPECIFY WHETHER THE
SENTENCE IS TO BE DEATH OR LIFE IMPRISONMENT:  ARKANSAS, COLORADO,
ILLINOIS, INDIANA, IOWA, KANSAS, KENTUCKY, MISSOURI, NORTH DAKOTA,
OKLAHOMA, PENNSYLVANIA, SOUTH DAKOTA, TENNESSEE, TEXAS, AND VIRGINIA. 

III.  IN EIGHT OTHER STATES THE SAME RESULT IS REACHED, ALTHOUGH THE
LEGISLATION IS PHRASED THAT ONE FOUND GUILTY OF MURDER IN THE FIRST
DEGREE SUFFERS DEATH OR LIFE IMPRISONMENT "AT THE DISCRETION OF THE
JURY":  ALABAMA, ARIZONA, CALIFORNIA, GEORGIA, IDAHO, MONTANA,
NEBRASKA, AND NEVADA. 

IV.  IN TWO STATES THE PUNISHMENT IS LIFE IMPRISONMENT UNLESS THE
JURY SPECIFIES THE DEATH PENALTY:  NEW HAMPSHIRE AND WASHINGTON. 

V. NINE STATES HAVE STATUTES MORE OR LESS LIKE THE FEDERAL PROVISION
HERE UNDER CONSIDERATION: LOUISIANA, MARYLAND, NEW JERSEY, NEW YORK,
OHIO, OREGON, SOUTH CAROLINA, WEST VIRGINIA, AND WYOMING. 

VI.  TWO STATES FRANKLY RECOGNIZE THAT DIFFERENCES OF OPINION ARE
LIKELY TO OCCUR WHEN THE JURY HAS POWER TO MITIGATE THE DEATH SENTENCE
AND PROVIDE FOR LIFE IMPRISONMENT EVEN WHEN THE JURY IS NOT UNANIMOUS:
FLORIDA AND MISSISSIPPI. 

AN EXAMINATION OF STATE LAW SHOWS THAT ALL BUT FOUR STATES HAVE
ABANDONED THE DEATH SENTENCE AS A NECESSARY CONSEQUENCE OF THE FINDING
OF GUILT OF MURDER IN THE FIRST DEGREE; THAT MOST OF THE STATES WHICH
HAVE RETAINED THE DEATH SENTENCE HAVE ENTRUSTED THE JURY WITH REMISSION
OF THE DEATH SENTENCE, ALTHOUGH SENTENCING IS TRADITIONALLY THE COURT'S
FUNCTION, AND THIS IS TRUE EVEN IN THOSE STATES WHERE THE LEGISLATURE
HAS NOT IN SO MANY WORDS PUT THIS POWER IN THE JURY'S KEEPING; THAT
EVEN WHERE THE JURY IS NOT REQUIRED TO DESIGNATE THE PUNISHMENT BUT
MERELY HAS THE POWER OF RECOMMENDING OR "ADDING" TO THE VERDICT THE
LIGHTER PUNISHMENT, THE MOST THOROUGHLY CANVASSED JUDICIAL
CONSIDERATION OF SUCH POWER HAS CONCLUDED THAT THE DEATH SENTENCE DOES
NOT, AS A MATTER OF JURY DUTY, AUTOMATICALLY FOLLOW A FINDING BY THEM
OF GUILT OF MURDER IN THE FIRST DEGREE, WHEN THE JURY CANNOT
UNANIMOUSLY AGREE THAT LIFE IMPRISONMENT SHOULD BE IMPOSED. 

OF THE NINE STATES THAT HAVE ENACTED LEGISLATION MORE OR LESS LIKE
THE FEDERAL PROVISION UNDER CONSIDERATION, THE STATUTES OF FOUR -
LOUISIANA, MARYLAND, WEST VIRGINIA, AND WYOMING - ARE VIRTUALLY IN THE
IDENTICAL FORM.  WHILE THE HIGHEST COURTS OF THESE STATES HAVE NOT
PASSED UPON THE PRECISE QUESTION BEFORE US, THEY HAVE ALL CONSTRUED
THEIR RESPECTIVE STATUTES AS GIVING THE JURY A FREE CHOICE AS TO WHICH
OF THE TWO ALTERNATIVE PUNISHMENTS ARE TO BE IMPOSED, ALTHOUGH IT CAN
FAIRLY BE SAID THAT SUCH CONSTRUCTION RUNS COUNTER TO THE OBVIOUS
READING THAT THE SENTENCE IS DEATH UNLESS ALL OF THE JURORS ARE AGREED
AS TO ADDING "WITHOUT CAPITAL PUNISHMENT."  FN3  THREE OF THE NINE
STATES - OHIO, OREGON, AND SOUTH CAROLINA - HAVE STATUTES PROVIDING
THAT THE PENALTY IS DEATH UNLESS THE JURY RECOMMENDS "MERCY" OR "LIFE
IMPRISONMENT" IN WHICH CASE THE PUNISHMENT SHALL BE LIFE IMPRISONMENT. 
THESE HAVE ALL BEEN CONSTRUED AS PROVIDING FOR ALTERNATIVE PUNISHMENT
IN THE DISCRETION OF THE JURY.  FN4  WHILE A SIMILAR NEW JERSEY STATUTE
HAS BEEN GIVEN THE LITERAL CONSTRUCTION HERE ESPOUSED BY THE
GOVERNMENT, THE HISTORY OF THAT STATE'S LEGISLATION ONLY SERVES TO
UNDERSCORE THE FORCE OF THE DECISIONS IN THE OTHER STATES.  FN5  THE
NINTH STATE, NEW YORK, IN 1937, AMENDED ITS LEGISLATION, WHICH HAD MADE
THE DEATH PENALTY MANDATORY UPON ALL CONVICTIONS FOR FIRST-DEGREE
MURDER, BY PROVIDING THAT IN FELONY MURDER CASES THE JURY "MAY, AS A
PART OF ITS VERDICT, RECOMMEND THAT THE DEFENDANT BE IMPRISONED FOR THE
TERM OF HIS NATURAL LIFE.  UPON SUCH RECOMMENDATION, THE COURT MAY
SENTENCE THE DEFENDANT TO IMPRISONMENT FOR THE TERM OF HIS NATURAL
LIFE."  N.Y. CRIM.  CODE AND PEN.  LAW SEC. 1045-A.  IN PEOPLE V.
HICKS, 287 N.Y. 165, THE COURT OF APPEALS FOUND THE FOLLOWING
INSTRUCTION ERRONEOUS: 

"THERE CANNOT BE ANY RECOMMENDATION UNLESS THE TWELVE OF YOU AGREE. 
BUT IF YOU HAVE ALL AGREED THAT THE DEFENDANT IS GUILTY, IT IS
NEVERTHELESS YOUR DUTY TO REPORT THAT VERDICT TO THE COURT.  IS THAT
CLEAR?  EVEN THOUGH YOU CANNOT AGREE ON THE RECOMMENDATION.  IN OTHER
WORDS, YOU CANNOT USE THE RECOMMENDATION AS BAIT, IN DETERMINING THE
GUILT OR INNOCENCE OF THE DEFENDANT.  ...  IF YOU ARE ALL UNANIMOUS
THAT THERE SHOULD BE A RECOMMENDATION, IT IS YOUR DUTY TO BRING IN THE
RECOMMENDATION; BUT IF YOU ARE NOT UNANIMOUS ON THAT PROPOSITION IT IS
NEVERTHELESS YOUR DUTY TO BRING IN THE VERDICT OF GUILTY OF MURDER IN
THE FIRST DEGREE, EVEN THOUGH YOU CANNOT AGREE ON THE OTHER.  IS THAT
PLAIN?"  (287 N.Y. AT 167-68.) 

THE COURT OF APPEALS HELD THAT THE STATUTE EXPRESSLY EMPOWERED THE
JURY TO MAKE A LIFE-IMPRISONMENT RECOMMENDATION A PART OF THEIR
VERDICT; THAT IT DID NOT EXPRESSLY, OR BY IMPLICATION, REQUIRE THE JURY
TO RENDER A VERDICT OF GUILTY WITHOUT THE RECOMMENDATION WHERE THEY
WERE NOT ALL AGREED UPON SO DOING; THAT, UNTIL THE JURY REACHED
AGREEMENT ON EVERY PART OF THEIR VERDICT, THEY HAD NOT AGREED UPON THE
VERDICT; THAT IN SUCH CASES THE LEGISLATURE REQUIRED THE JURY TO
DETERMINE 

"FIRST, WHETHER THE ACCUSED IS GUILTY OF THE CRIME CHARGED; SECOND,
WHETHER THE SENTENCE SHALL BE DEATH OR WHETHER THE TRIAL JUDGE MAY
PRONOUNCE A SENTENCE OF LIFE IMPRISONMENT.  BOTH QUESTIONS MUST BE
DETERMINED BY THE JURY, AND THE JURY'S ANSWER TO BOTH QUESTIONS MUST BE
EMBODIED IN ITS VERDICT.  A JUROR CONSIDERING THE QUESTION OF WHETHER
AN ACCUSED IS GUILTY OF THE CRIME CHARGED CAN NO LONGER BE INFLUENCED
CONSCIOUSLY OR UNCONSCIOUSLY BY KNOWLEDGE THAT THE FINDING OF GUILT OF
THE CRIME CHARGED WILL ENTAIL A MANDATORY PENALTY WHICH IN HIS OPINION
IS NOT JUSTIFIED BY THE DEGREE OF MORAL GUILT OF THE ACCUSED.  EACH
JUROR SHOULD NOW KNOW THAT THE FINDING OF GUILT DOES NOT CARRY THAT
MANDATORY PENALTY UNLESS THE JURY FAILS TO MAKE A RECOMMENDATION OF
LIFE IMPRISONMENT A PART OF THE VERDICT AND EACH JUROR SHOULD KNOW THAT
HE IS ONE OF THE TWELVE JUDGES WHO SHALL DECIDE WHAT THE VERDICT SHALL
BE IN ALL ITS PARTS. 

UNTIL THE TWELVE JUDGES HAVE AGREED ON EVERY PART OF THE VERDICT THEY
HAVE NOT AGREED ON ANY VERDICT."  (ID. AT 171.) 

AND SO WE REACH THE REAL QUESTION OF THIS CASE.  SHOULD A FEDERAL
JURY REPORT AS THEIR VERDICT THAT PART OF THEIR DELIBERATIONS WHICH
RESULTED IN THE FINDING OF GUILT OF FIRST DEGREE MURDER IF THEY CANNOT
AGREE ON THE ALLEVIATING QUALIFICATION, OR SHOULD THEY BE ADVISED THAT
THEIR DISAGREEMENT ON THE QUESTION OF APPROPRIATE PUNISHMENT MAY
CONSCIENTIOUSLY BE ADHERED TO SO THAT, IF THERE BE NO LIKELIHOOD OF AN
AGREEMENT AFTER MAKING SUCH AN EFFORT AS IS DUE FROM A CONSCIENTIOUS
JURY, THERE WOULD BE NO ESCAPE FROM REPORTING DISAGREEMENT.  AFTER
CONSIDERABLE DOUBT, AS I HAVE INDICATED, I FIND THAT THE WEIGHT OF
CONSIDERATIONS LIES WITH GIVING THE JURY THE WIDER POWER WHICH THE
COURT'S CONSTRUCTION AFFORDS. 

"THE DECISIONS IN THE HIGHEST COURTS OF THE SEVERAL STATES UNDER
SIMILAR STATUTES ARE NOT ENTIRELY HARMONIOUS, BUT THE GENERAL CURRENT
OF OPINION APPEARS TO BE IN ACCORD WITH OUR CONCLUSION."  WINSTON V.
UNITED STATES, SUPRA, AT P. 313.  THE FAIR SIGNIFICANCE TO BE DRAWN
FROM STATE LEGISLATION AND THE PRACTICAL CONSTRUCTION GIVEN TO IT IS
THAT IT PLACES INTO THE JURY'S HANDS THE DETERMINATION WHETHER THE
SENTENCE IS TO BE DEATH OR LIFE IMPRISONMENT,  FN6  AND, SINCE THAT IS
THE JURY'S RESPONSIBILITY, IT IS FOR THEM TO DECIDE WHETHER DEATH
SHOULD OR SHOULD NOT BE THE CONSEQUENCE OF THEIR FINDING THAT THE
ACCUSED IS GUILTY OF MURDER IN THE FIRST DEGREE.  SINCE THE
DETERMINATION OF THE SENTENCE IS THUS, IN EFFECT, A PART OF THEIR
VERDICT, THERE MUST BE ACCORD BY THE ENTIRE JURY IN REACHING THE FULL
CONTENT OF THE VERDICT. 

THE GOVERNMENT CONTENDS THAT BECAUSE OF ITS "CLEAR TERMS" LITTLE
WEIGHT SHOULD BE ACCORDED THE FAILURE OF CONGRESS TO REPUDIATE THE
INTERPRETATION PLACED UPON SEC. 330 OF THE CRIMINAL CODE BY THE SMITH
CASE IN 1931.  THAT DECISION AND ACQUIESCENCE IN IT ANSWER THE CLAIM
THAT THE SECTION PRECLUDES A READING OF IT OPPOSED TO THAT WHICH THE
GOVERNMENT OFFERS.  MOREOVER, IT IS SIGNIFICANT THAT THE PROPOSED
REVISION OF THE CRIMINAL CODE  FN7  LEAVES THE FORM OF THIS PROVISION
UNCHANGED.  THIS REVISION DOUBTLESS HAD THE EXPERT SCRUTINY OF THE
DEPARTMENT OF JUSTICE,  FN8  AND THAT DEPARTMENT MUST HAVE HAD
KNOWLEDGE OF THE JUDICIAL GLOSS PUT UPON THE RETAINED PROVISION BY THE
SMITH CASE.  FN9 

THE CARE THAT TRIAL JUDGES SHOULD EXERCISE IN MAKING CLEAR TO JURIES
THEIR POWER AND RESPONSIBILITY IN TRIALS FOR MURDER IS EMPHASIZED BY
THE UNCERTAINTIES REGARDING THE CONSTRUCTION APPROPRIATE TO THE JURY'S
POWER TO AFFECT THE PUNISHMENT ON A FINDING OF GUILT OF MURDER IN THE
FIRST DEGREE, NOW RESOLVED BY THIS DECISION.  IT FELL UPON THE TRIAL
JUDGE HERE TO INSTRUCT THE JURY AS TO THIS POWER.  WAS HIS CHARGE IN
ACCORD WITH THE STATUTE AS CONSTRUED BY US?  THE COURT BELOW HELD THAT
IT WAS; THE GOVERNMENT CONCEDES THAT IT WAS NOT.  THE CHARGE AND THE
INSTRUCTIONS GIVEN WERE SUCH AS TO PERMIT REASONABLE MINDS TO DIFFER ON
THIS ISSUE, AND THEREIN LIES THE ERROR.  FN10  CHARGING A JURY IS NOT A
MATTER OF ABRACADABRA.  NO PART OF THE CONDUCT OF A CRIMINAL TRIAL LAYS
A HEAVIER TASK UPON THE PRESIDING JUDGE.  THE CHARGE IS THAT PART OF
THE WHOLE TRIAL WHICH PROBABLY EXERCISES THE WEIGHTIEST INFLUENCE UPON
JURORS.  IT SHOULD GUIDE THEIR UNDERSTANDING AFTER JURORS HAVE BEEN
SUBJECTED TO CONFUSION AND DEFLECTION FROM THE RELEVANT BY THE STIFF
PARTISANSHIP OF COUNSEL. 

TO AVOID REVERSAL ON APPEAL, TRIAL JUDGES ERR, AS THEY SHOULD, ON THE
SIDE OF CAUTION.  BUT CAUTION OFTEN SEEKS SHELTER IN MEANINGLESS
ABSTRACTIONS DEVOID OF GUIDING CONCRETENESS.  CLARITY CERTAINLY DOES
NOT REQUIRE A BROAD HINT TO A JUROR THAT HE CAN HANG THE JURY IF HE
CANNOT HAVE HIS WAY IN REGARD TO THE POWER GIVEN TO HIM BY CONGRESS IN
DETERMINING THE SENTENCE OF ONE GUILTY OF FIRST-DEGREE MURDER.  ON THE
OTHER HAND, CONSCIENTIOUS JURORS ARE NOT LIKELY TO DERIVE CLEAR
GUIDANCE IF TOLD THAT "ON BOTH GUILT AND PUNISHMENT (THEY) MUST BE
UNANIMOUS BEFORE ANY VERDICT CAN BE FOUND."  THEY SHOULD BE TOLD IN
SIMPLE, COLLOQUIAL ENGLISH THAT THEY ARE UNDER DUTY TO COME TO AN
AGREEMENT IF AT ALL POSSIBLE WITHIN CONSCIENCE, FOR A VERDICT MUST BE
UNANIMOUS; THAT A VERDICT INVOLVES A DETERMINATION NOT ONLY OF GUILT
BUT ALSO OF THE PUNISHMENT THAT IS TO FOLLOW UPON A FINDING OF GUILT;
THAT THE VERDICT AS TO BOTH GUILT AND PUNISHMENT IS SINGLE AND
INDIVISIBLE; THAT IF THEY CANNOT REACH AGREEMENT REGARDING THE SENTENCE
THAT SHOULD FOLLOW A FINDING OF GUILT, THEY CANNOT RENDER A VERDICT;
AND THIS MEANS THAT THEY MUST BE UNANIMOUS IN DETERMINING WHETHER THE
SENTENCE SHOULD BE DEATH, WHICH WOULD FOLLOW AS A MATTER OF COURSE IF
THEY BRING IN A VERDICT THAT "THE ACCUSED IS FOUND GUILTY OF THE CRIME
OF MURDER IN THE FIRST DEGREE," AND THEY MUST BE EQUALLY UNANIMOUS IF
THEY DO NOT WISH A FINDING OF GUILT TO BE FOLLOWED BY A DEATH SENTENCE,
WHICH THEY MUST EXPRESS BY A FINDING OF GUILT "WITHOUT CAPITAL
PUNISHMENT." 

FN1  FOR REFERENCES TO THE STATE LEGISLATION SEE APPENDIX, PP. 767
770. 

FN2  THERE WERE ONLY TWENTY-THREE CONVICTIONS OF FIRST-DEGREE MURDER
IN THE FEDERAL DISTRICT COURTS IN CONTINENTAL UNITED STATES, THE
TERRITORIES, AND THE POSSESSIONS, EXCLUSIVE OF THE DISTRICT OF
COLUMBIA, DURING THE SIX-YEAR PERIOD BEGINNING JULY 1, 1941, AND ENDING
JUNE 30, 1947.  EIGHT OF THE DEFENDANTS CONVICTED WERE SENTENCED TO
DEATH, AND FIFTEEN WERE GIVEN LIFE IMPRISONMENT.  OF THE EIGHT
SENTENCED TO DEATH, THREE WERE EXECUTED (SEE ARWOOD V. UNITED STATES,
134 F.2D 1007; RUHL V. UNITED STATES, 148 F.2D 173; UNITED STATES V.
AUSTIN NELSON, DISTRICT COURT FOR THE TERRITORY OF ALASKA, FIRST
DIVISION, APRIL 18, 1947(UNREPORTED)); THE SENTENCE OF ONE WAS COMMUTED
TO LIFE IMPRISONMENT (SEE PADDY V. UNITED STATES, 143 F.2D 847); AND
THE SENTENCES OF FOUR (INCLUDING THE PETITIONER HERE) HAVE BEEN STAYED
PENDING THEIR APPEALS (SEE UNITED STATES V. SAM RICHARD SHOCKLEY AND
UNITED STATES V. MIRAN EDGAR THOMPSON, DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, DEC. 21, 1946(UNREPORTED); UNITED STATES V.
CARLOS ROMERO OCHOA, DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CALIFORNIA, MAY 19, 1947(UNREPORTED)). 

I AM INDEBTED FOR THESE STATISTICS TO THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS. 

FN3  THE SUPREME COURT OF LOUISIANA NOTED THAT "IN CAPITAL CASES, IT
IS ENTIRELY LEFT TO THE JURY TO DETERMINE THE EXTENT OF THE PUNISHMENT
IN THE EVENT OF CONVICTION.  THE JURORS, IN SUCH CASES, ARE ENTIRELY
FREE TO CHOOSE BETWEEN A QUALIFIED AND AN UNQUALIFIED VERDICT, BECAUSE
THE LAW GIVES THEM THE UNQUESTIONED DISCRETION TO RETURN EITHER ONE OR
THE OTHER."  STATE V. HENRY, 196 LA. 217, 233.  THE COURT OF APPEALS OF
MARYLAND HELD THAT "IN OUR OPINION, IT WAS THE PURPOSE OF THE ACT TO
EMPOWER JURIES TO UNITE IN A CHOICE OF PUNISHMENTS; THAT IS, A CHOICE
BETWEEN LIMITING PUNISHMENT TO LIFE IMPRISONMENT AND LEAVING THE COURT
UNRESTRICTED IN FIXING THE PUNISHMENT; AND IT WAS INTENDED THAT ALL
JURORS SHOULD EXERCISE A DISCRETION IN MAKING THAT CHOICE."  PRICE V.
STATE, 159 MD. 491, 494.  THE SUPREME COURT OF WEST VIRGINIA HAS HELD
THAT UNDER THAT STATE'S STATUTE THE JURY FIXES THE SENTENCE AND THAT,
THEREFORE, IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO FAIL TO
"INSTRUCT THE JURY THAT IT WAS ITS DUTY TO FIND, IN THE EVENT OF A
VERDICT OF GUILTY OF MURDER IN THE FIRST DEGREE, WHETHER THE ACCUSED
SHOULD BE HANGED OR SENTENCED TO THE PENITENTIARY FOR LIFE."  STATE V.
GOINS, 120 W. VA. 605, 609.  AND THE SUPREME COURT OF WYOMING IN A CASE
WHERE THE DEFENDANT HAD ENTERED A PLEA OF GUILTY OF MURDER IN THE FIRST
DEGREE, HELD THAT "A DEFENDANT HAS THE RIGHT TO HAVE A JURY NOT ONLY TO
TRY THE ISSUE OF GUILT OR INNOCENCE, BUT ALSO TO DECIDE WHAT THE
PUNISHMENT SHALL BE.  THE RIGHT TO A TRIAL ON THE ISSUE OF GUILT OR
INNOCENCE MAY BE WAIVED BY A PLEA OF GUILTY, WHICH LEAVES ONLY THE
QUESTION OF PUNISHMENT TO BE DECIDED BY THE JURY."  STATE V. BEST, 44
WYO. 383, 389-90; SEE ALSO STATE V. BROWN, 60 WYO. 379, 403(WHERE AN
INSTRUCTION TO THE JURY THAT "A PERSON WHO IS FOUND GUILTY OF MURDER IN
THE FIRST DEGREE SHALL SUFFER DEATH OR BE IMPRISONED IN THE
PENITENTIARY AT HARD LABOR FOR LIFE, IN THE DISCRETION OF THE JURY
TRYING THE CASE" WAS UPHELD). 

FN4  WHILE THE JUDGES OF THE SUPREME COURT OF OHIO DIFFERED IN THEIR
VIEWS AS TO WHETHER THE JURY IN MAKING THE RECOMMENDATION WERE
RESTRICTED TO CONSIDERATIONS BASED UPON THE EVIDENCE, THEY WERE IN
AGREEMENT THAT THE STATUTE GAVE THE JURY FULL AND EXCLUSIVE DISCRETION
AS TO WHETHER OR NOT TO MAKE THE RECOMMENDATION.  HOWELL V. STATE, 102
OHIO ST. 411.  IN OREGON AND SOUTH CAROLINA IT IS SUFFICIENT TO CHARGE
THE JURY THAT THEY MAY BRING IN EITHER VERDICT.  STATE V. HECKER, 109
ORE.  520, 559-60; STATE V. MCLAUGHLIN, 208 S.C. 462, 468. 

FN5  PRIOR TO 1916 THE DEATH PENALTY WAS MANDATORY IN NEW JERSEY.  IN
THAT YEAR THE STATE LEGISLATURE AMENDED THE LAW BY THE ENACTMENT OF THE
JURY RECOMMENDATION FORM OF STATUTE.  IN 1919 THE NEW JERSEY COURT OF
ERRORS AND APPEALS CONSTRUED THE STATUTE TO GIVE THE JURY ABSOLUTE
DISCRETION TO BRING IN EITHER VERDICT, AND, BY A CLOSE DECISION, HELD
THAT THE JURY WAS NOT CONFINED TO THE EVIDENCE IN DETERMINING WHETHER
OR NOT TO MAKE THE RECOMMENDATION.  STATE V. MARTIN, 92 N.J.L. 436. 
THAT SAME YEAR THE LEGISLATURE ENACTED INTO LAW THE VIEWS OF THE
DISSENTING JUDGES REQUIRING THAT THE JURY MUST MAKE THE RECOMMENDATION
"BY ITS VERDICT, AND AS A PART THEREOF, UPON AND AFTER THE
CONSIDERATION OF ALL THE EVIDENCE."  N.J. STAT. ANN. SEC. 2:138
4(1939).  IN STATE V. MOLNAR, 133 N.J.L. 327, 335, THE COURT CONSTRUED
THE AMENDED STATUTE TO MEAN THAT "  ...  THE PENALTY IS DEATH,
DETERMINED NOT BY THE JURY, BUT BY THE STATUTE, AND PRONOUNCED BY THE
COURT.  IT IS NOT CORRECT TO SAY THAT THE JURY IMPOSES THE SENTENCE OF
DEATH WHERE IT DOES NOT CHOOSE TO MAKE THE RECOMMENDATION FOR LIFE
IMPRISONMENT." 

FN6  INDEED, WE SAID IN THE WINSTON CASE THAT CONGRESS BY THE ACT OF
1897 ESTABLISHED THE "SIMPLE AND FLEXIBLE RULE OF CONFERRING UPON THE
JURY, IN EVERY CASE OF MURDER, THE RIGHT OF DECIDING WHETHER IT SHALL
BE PUNISHED BY DEATH OR BY IMPRISONMENT."  172 U.S. AT 312. 

FN7  H.R. 3190, 80TH CONG., 1ST SESS., SEC. 1111(B), AS PASSED BY THE
HOUSE ON MAY 12, 1947, 93 CONG. REC. 5049. 

FN8  SEE ID. AT 5048; HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 1600 AND H.R. 2055, 80TH CONG., 1ST
SESS., PP. 33-35.  IT IS INTERESTING TO NOTE THAT THE PROPOSED REVISION
ITSELF CONTAINS MOST OF THE DIFFERENT FORMS BY WHICH LEGISLATURES HAVE
RETAINED CAPITAL PUNISHMENT AS A PENALTY FOR THE COMMISSION OF CERTAIN
CRIMES BUT HAVE NOT MADE ITS IMPOSITION MANDATORY UPON A FINDING OF
GUILTY.  E.G., SEC. 2113(E)(MURDER IN COMMISSION OF BANK ROBBERY - "NOT
LESS THAN TEN YEARS, OR PUNISHED BY DEATH IF THE VERDICT OF THE JURY
SHALL SO DIRECT"); SEC. 1992(WRECKING TRAIN WHICH RESULTS IN DEATH OF
ANY PERSON - "DEATH PENALTY OR TO IMPRISONMENT FOR LIFE, IF THE JURY
SHALL IN ITS DISCRETION SO DIRECT"); SEC. 1201(A)(KIDNAPPING - "(1) BY
DEATH IF THE KIDNAPED PERSON HAS NOT BEEN LIBERATED UNHARMED, AND IF
THE VERDICT OF THE JURY SHALL SO RECOMMEND, OR (2) BY IMPRISONMENT FOR
ANY TERM OF YEARS OR FOR LIFE, IF THE DEATH PENALTY IS NOT IMPOSED");
SEC. 2031(RAPE - "DEATH, OR IMPRISONMENT FOR ANY TERM OF YEARS OR FOR
LIFE").  THERE IS NOTHING IN EITHER THE COMMITTEE'S REPORT OR THE
REVISER'S NOTES ON THESE SECTIONS TO INDICATE WHETHER THESE ARE
DIFFERENCES IN FORM OR IN SUBSTANCE.  SEE H.R. REP. NO. 304, 80TH
CONG., 1ST SESS. 

FN9  THE VARIOUS GOVERNMENTAL AGENCIES ARE APT TO SEE DECISIONS
ADVERSE TO THEM FROM THE POINT OF VIEW OF THEIR LIMITED PREOCCUPATION
AND TOO OFTEN ARE EAGER TO SEEK REVIEW FROM ADVERSE DECISIONS WHICH
SHOULD STOP WITH THE LOWER COURTS.  THE SOLICITOR GENERAL, HOWEVER,
MUST TAKE A COMPREHENSIVE VIEW IN DETERMINING WHEN CERTIORARI SHOULD BE
SOUGHT.  HE IS THEREFORE UNDER SPECIAL RESPONSIBILITY, AS OCCUPANTS OF
THE SOLICITOR GENERAL'S OFFICE HAVE RECOGNIZED, TO RESIST IMPORTUNITIES
FOR REVIEW BY THE AGENCIES, WHEN FOR DIVERS REASONS UNRELATED TO THE
MERITS OF A DECISION, REVIEW OUGHT NOT TO BE SOUGHT.  THE CIRCUMSTANCES
OF THE SMITH CASE PRESENT A SPECIAL SITUATION, AND THE INTENTION TO
CARRY THE IMPLICATION OF "ACQUIESCENCE" BEYOND SUCH SPECIAL
CIRCUMSTANCES IS EMPHATICALLY DISAVOWED. 

FN10  THE JURY WAS INSTRUCTED THAT "BEFORE YOU MAY RETURN A QUALIFIED
VERDICT OF MURDER IN THE FIRST DEGREE WITHOUT CAPITAL PUNISHMENT THAT
YOUR DECISION TO DO SO MUST BE UNANIMOUS."  BY AND OF ITSELF THIS
INSTRUCTION WAS CONSONANT WITH EITHER CONSTRUCTION OF THE STATUTE.  IF
THE JURY HAD ALSO BEEN INSTRUCTED EITHER THAT "BEFORE YOU MAY RETURN A
VERDICT OF MURDER IN THE FIRST DEGREE YOUR DECISION NOT TO ADD THE
QUALIFICATION 'WITHOUT CAPITAL PUNISHMENT' MUST BE UNANIMOUS" OR THAT
"IF YOU ARE ALL AGREED THAT THE DEFENDANT IS GUILTY BUT YOU ARE NOT ALL
AGREED TO ADD 'WITHOUT CAPITAL PUNISHMENT' YOU MUST RETURN A VERDICT OF
MURDER IN THE FIRST DEGREE WITHOUT THE QUALIFICATION," THEY WOULD HAVE
KNOWN WHICH CONSTRUCTION OF THE STATUTE THE TRIAL JUDGE ADOPTED, AND SO
WOULD WE. 

MR. JUSTICE BURTON CONCURS IN THIS OPINION. 

           APPENDIX. 

          STATE LEGISLATION CONCERNING THE PUNISHMENT FOR FIRST

                     DEGREE MURDER.* 

*IT IS APPROPRIATE TO GIVE WARNING THAT THE MEANING ATTRIBUTED TO
SOME OF THE STATUTES BY THIS CLASSIFICATION DOES NOT HAVE THE BENEFIT
OF GUIDING STATE ADJUDICATION.  THE ASCERTAINMENT OF THE PROPER
CONSTRUCTION OF A STATE STATUTE WHEN THERE IS NOT A CLEAR RULING BY THE
HIGHEST COURT OF THAT STATE IS TREACHEROUS BUSINESS.  NOR CAN ONE BE
WHOLLY CONFIDENT THAT HE HAS FOUND THE LATEST FORM OF STATE
LEGISLATION. 

A. DEATH PENALTY MANDATORY: 

(1)  CONN. GEN. STAT. SEC. 6044(1930). 

(2)  MASS. GEN. LAWS C. 265, SEC. 2(1932). 

(3)  N.C. CODE ANN. SEC. 4200(1939). 

(4)  VT. PUB. LAWS SEC. 8376(1933). 

B. DEATH PENALTY ABOLISHED: 

(5)  ME. REV. STAT. C. 117, SEC. 1(1944). 

(6)  MICH. STAT. ANN. SEC. 28.548(1938). 

(7)  MINN. STAT. SEC. 619.07(1945). 

(8)  R.I. GEN. LAWS C. 606, SEC. 2(1938)(PENALTY FOR MURDER IN FIRST
DEGREE IS LIFE IMPRISONMENT UNLESS PERSON IS UNDER LIFE IMPRISONMENT
SENTENCE AT TIME OF CONVICTION). 

(9)  WIS. STAT. SEC. 340.02(1945). 

C. DEATH PENALTY NOT MANDATORY: 

I. STATES WHERE JURY RECOMMENDATION OF LIFE IMPRISONMENT IS NOT
BINDING ON TRIAL COURT: 

(10)  DEL. REV. CODE SEC. 5330(1935). 

(11)  N.M. STAT. ANN. SEC. 105-2226(1929). 

(12)  UTAH REV. STAT. ANN. SEC. 103-28-4(1933). 

II.  STATES WHERE JURY'S VERDICT MUST SPECIFY WHETHER THE SENTENCE IS
TO BE DEATH OR LIFE IMPRISONMENT: 

(13)  ARK. DIG.  STAT.  SEC. 4042(1937)(AS INTERPRETED BY THE
COURTS). 

(14) COLO. STAT. ANN. C. 48, SEC. 32(1935). 

(15)  ILL. ANN. STAT. C. 38, SEC. 360(1935). 

(16)  IND. ANN. STAT. SECS. 10-3401 AND 9-1819(BURNS 1942). 

(17)  IOWA CODE SEC. 12911(1939). 

(18)  KAN. GEN. STAT. ANN. SEC. 21-403(1935). 

(19)  KY. REV. STAT. ANN. SECS. 435.010 AND 431.130. 

(20)  MO. REV. STAT. ANN. SEC. 4378(1939)(AS INTERPRETED BY THE
COURTS). 

(21)  N.D. COMP. LAWS ANN. SEC. 9477(1913). 

(22)  OKLA. STAT. ANN. TIT. 21, SEC. 707(1937). 

(23)  PA. STAT. ANN. TIT. 18, SEC. 4701(1945). 

(24)  S.D. SESS. LAWS 1939, C. 30, AMENDING S.D. CODE SEC.
13.2012(1939)(BUT EVEN IF JURY SPECIFIES DEATH SENTENCE, COURT "MAY
NEVERTHELESS PRONOUNCE JUDGMENT OF LIFE IMPRISONMENT"). 

(25)  TENN. CODE ANN. SEC. 10772(WILLIAMS 1934). 

(26)  TEX. PEN.  CODE ANN. ART. 1257(1936).  ("THE PUNISHMENT FOR
MURDER SHALL BE DEATH OR CONFINEMENT IN THE PENITENTIARY FOR LIFE OR
FOR ANY TERM OF YEARS NOT LESS THAN TWO."  - COURTS HAVE INTERPRETED
STATUTE AS REQUIRING JURY TO SPECIFY PENALTY.) 

(27)  VA. CODE ANN. SEC. 4394(1936)(AS INTERPRETED BY THE COURTS). 

III.  STATES WHERE SENTENCE OF DEATH OR LIFE IMPRISONMENT IS AT THE
DISCRETION OF THE JURY: 

(28) ALA. CODE ANN. TIT. 14, SEC. 318(1940). 

(29)  ARIZ. CODE ANN. SEC. 43-2903(1939). 

(30)  CAL. PEN.  CODE SEC. 190(1941). 

(31)  GA. CODE ANN. SEC. 26-1005(1936). 

(32)  IDAHO CODE ANN. SEC. 17-1104(1932). 

(33)  MONT. REV. CODE ANN. SEC. 10957(1935). 

(34)  NEB. REV. STAT. SEC. 28-401(1943). 

(35)  NEV. COMP. LAWS ANN. SEC. 10068(1929). 

IV.  STATES WHERE THE PUNISHMENT IS LIFE IMPRISONMENT UNLESS THE JURY
SPECIFIES THE DEATH PENALTY: 

(36)  N.H. REV. LAWS C. 455, SEC. 4(1942). 

(37)  WASH. REV. STAT. ANN. SEC. 2392(1932). 

V. STATES THAT HAVE STATUTES MORE OR LESS LIKE THE FEDERAL PROVISION
UNDER CONSIDERATION: 

(38)  LA. CODE CRIM. LAW & PROC. ANN. ART. 409(1943). 

(39)  MD. ANN. CODE GEN. LAWS ART. 27, SEC. 481(1939). 

(40)  N.J. STAT. ANN. SEC. 2:138-4(1939). 

(41)  N.Y. CRIM. CODE AND PEN.  LAW SEC. 1045-A. 

(42)  OHIO GEN. CODE ANN. SEC. 12400(1939). 

(43)  ORE.  COMP.  LAWS ANN. SEC. 23-411(1940). 

(44)  S.C. CODE ANN.  SEC. 1102(1942). 

(45)  W. VA. CODE ANN. SEC. 6204(1943). 

(46)  WYO. COMP. STAT. ANN. SEC. 9-201(1945). 

VI.  STATES THAT GIVE EFFECT TO JURY RECOMMENDATION FOR LIFE
IMPRISONMENT EVEN WHEN JURY IS NOT UNANIMOUS IN MAKING THAT
RECOMMENDATION: 

(47)  FLA. STAT. ANN. SEC. 919.23(1944).  ("WHOEVER IS CONVICTED OF A
CAPITAL OFFENSE AND RECOMMENDED TO THE MERCY OF THE COURT BY A MAJORITY
OF THE JURY IN THEIR VERDICT, SHALL BE SENTENCED TO IMPRISONMENT FOR
LIFE.") 

(48)  MISS.  CODE ANN. SEC. 2217(1942).  ("EVERY PERSON WHO SHALL BE
CONVICTED OF MURDER SHALL SUFFER DEATH, UNLESS THE JURY RENDERING THE
VERDICT SHALL FIX THE PUNISHMENT AT IMPRISONMENT IN THE PENITENTIARY
FOR THE LIFE OF THE CONVICT; OR UNLESS THE JURY SHALL CERTIFY ITS
DISAGREEMENT AS TO THE PUNISHMENT  ...  IN WHICH CASE THE COURT SHALL
FIX THE PUNISHMENT AT IMPRISONMENT FOR LIFE.") 
..END :














UNITED STATES V. SOUTH BUFFALO R. CO., 333 U.S. 771 


NO. 198.  ARGUED FEBRUARY 2, 1948.  - DECIDED APRIL 26, 1948.  - 69
F.SUPP.  456, AFFIRMED. 


1.  THE COMMODITIES CLAUSE OF THE INTERSTATE COMMERCE ACT DOES NOT
PREVENT A RAILROAD FROM TRANSPORTING COMMODITIES OF A CORPORATION
SUBSTANTIALLY ALL OF WHOSE STOCK IS OWNED BY A HOLDING COMPANY WHICH
ALSO OWNS SUBSTANTIALLY ALL OF THE STOCK OF THE RAILROAD, UNLESS THE
CONTROL OF THE RAILROAD IS SO EXERCISED AS TO MAKE IT THE ALTER EGO OF
THE HOLDING COMPANY.  UNITED STATES V. ELGIN, J. & E.R. CO., 298 U.S.
492.  PP. 772-785. 

2. IN THE LIGHT OF THE EQUITABLE CONSIDERATIONS INVOLVED IN THIS CASE
AND THE FACT THAT CONGRESS REJECTED AS TOO DRASTIC AN AMENDMENT
PROPOSED FOR THE SPECIFIC PURPOSE, INTER ALIA, OF SETTING ASIDE THE
DECISION OF THIS COURT IN UNITED STATES V. ELGIN, J. & E.R. CO., SUPRA,
THIS COURT DECLINES TO OVERRULE THAT INTERPRETATION.  PP. 773-784. 

3.  THE EVIDENCE IN THIS CASE DOES NOT PROVE THAT THE HOLDING
COMPANY, IN EITHER THE LEGAL OR ECONOMIC SENSE, DISREGARDED THE
SEPARATE ENTITY OF ITS SUBSIDIARY RAILROAD OR TREATED IT AS ITS ALTER
EGO.  PP. 784-785. 

4.  VOLUNTARILY ABANDONED COURSES OF CONDUCT ARE NOT GROUNDS FOR
INJUNCTION, THOUGH THEY MAY SOMETIMES BE RELEVANT EVIDENCE OF INTENT OR
SIMILAR ISSUES.  P. 774. 

UNITED STATES V. SOUTH BUFFALO RAILWAY CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF NEW YORK. 

A DISTRICT COURT DENIED AN INJUNCTION AGAINST ALLEGED VIOLATIONS OF
THE COMMODITIES CLAUSE OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
1(8).  69 F.SUPP.  456.  ON DIRECT APPEAL TO THIS COURT, AFFIRMED, P.
785. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE GOVERNMENT, BY DIRECT APPEAL FROM THE DISTRICT COURT,  FN1
INVITES US TO RECONSIDER AND OVERRULE THE INTERPRETATION OF THE
COMMODITIES CLAUSE OF THE INTERSTATE COMMERCE ACT  FN2 PROMULGATED IN
UNITED STATES V. ELGIN, JOLIET & EASTERN R. CO., 298 U.S. 492.  THAT
HOLDING, IN SUBSTANCE, IS THAT THE PROHIBITION  FN3  AGAINST A RAILROAD
COMPANY TRANSPORTING ANY COMMODITY WHICH IT OWNS OR IN WHICH IT HAS AN
INTEREST, EXCEPT FOR ITS OWN USE, DOES NOT PREVENT IT FROM TRANSPORTING
COMMODITIES OF A CORPORATION WHOSE STOCK IS WHOLLY OWNED BY A HOLDING
COMPANY WHICH ALSO OWNS ALL OF THE STOCK OF THE RAILWAY, UNLESS THE
CONTROL OF THE RAILWAY IS SO EXERCISED AS TO MAKE IT THE ALTER EGO OF
THE HOLDING COMPANY. 

THE PRESENT CHALLENGE TO THAT DOCTRINE IS PREDICATED ON THE FOLLOWING
FACTS:  BETHLEHEM STEEL CORPORATION (THE HOLDING COMPANY) OWNS
SUBSTANTIALLY ALL OF THE STOCKS OF SOUTH BUFFALO RAILWAY COMPANY (SOUTH
BUFFALO) AND OF BETHLEHEM STEEL COMPANY (THE STEEL COMPANY).  AT ITS
LACKAWANNA PLANT, NEAR BUFFALO, N.Y., THE STEEL COMPANY PRODUCES STEEL
AND FROM IT FABRICATES VARIOUS PRODUCTS.  THESE COMMODITIES ARE
TRANSPORTED BY THE SOUTH BUFFALO FROM THE PLANT TO THE RAILS OF TRUNK
LINE CARRIERS.  IN FACT, SOUTH BUFFALO PROVIDES THE SOLE TERMINAL
CONNECTION BETWEEN THIS INDUSTRY AND THE TRUNK-LINE RAILROADS.  IT
OPERATES ABOUT 6 MILES OF MAIN-LINE TRACK AND 81 MILES OF SPUR TRACK,
58 MILES OF ITS TRACKAGE BEING ON LEASED RIGHT-OF-WAY WITHIN THE STEEL
PLANT WHERE IT CONNECTS WITH OTHER TRACKAGE OWNED BY THE STEEL COMPANY
ITSELF. 

WHILE ABOUT 70% OF SOUTH BUFFALO REVENUES HAVE BEEN DERIVED FROM THE
STEEL COMPANY TRAFFIC, IT ALSO RENDERS TERMINAL SWITCHING FOR 27
UNRELATED INDUSTRIES, SOME OF CONSIDERABLE SIZE.  IT ENABLES ALL OF
THEM TO SHIP, BY DIRECT CONNECTION, OVER FIVE TRUNK-LINE SYSTEMS AND
THROUGH INTERCHANGE OVER SEVEN MORE. 

SOUTH BUFFALO PERFORMS NO TRANSPORTATION SERVICE AND OWNS NO
FACILITIES OUTSIDE OF THE STATE OF NEW YORK, WHERE IT OPERATES ONLY
WITHIN THE BUFFALO SWITCHING DISTRICT.  IT IS CLASSIFIED BY THE
INTERSTATE COMMERCE COMMISSION AS AN "S-1" CARRIER, WHICH IS DEFINED AS
ONE ENGAGED IN "PERFORMING SWITCHING SERVICES ONLY."  IT FILES TARIFFS
COVERING SWITCHING SERVICE, BOTH WITH THE INTERSTATE COMMERCE
COMMISSION AND WITH THE NEW YORK PUBLIC SERVICE COMMISSION.  IT DOES
NOT APPEAR TO PARTICIPATE WITH ANY LINE-HAUL RAILROAD IN A THROUGH
INTERSTATE ROUTE OR TO RECEIVE A DIVISION OF ANY JOINT OR THROUGH
RATE. 

IN 1936 THIS COURT DECIDED UNITED STATES V. ELGIN, JOLIET & EASTERN
R. CO., 298 U.S. 492, AND HELD THAT THE PRODUCTION AND TRANSPORTATION
SET-UP OF THE UNITED STATES STEEL CORPORATION, ONE OF BETHLEHEM'S
COMPETITORS, DID NOT VIOLATE THE COMMODITIES CLAUSE.  THEREUPON,
BETHLEHEM MADE A STUDY OF THE RELATIONS BETWEEN ITSELF, SOUTH BUFFALO
AND THE STEEL COMPANY IN THE LIGHT OF THIS DECISION.  IT REVISED ITS
INTERCORPORATE RELATIONSHIP IN THE NEXT FEW YEARS TO COMPLY, AS IT WAS
ADVISED, WITH THE CONDITIONS UNDER WHICH THIS COURT HAD FOUND THE
STATUTE INAPPLICABLE TO UNITED STATES STEEL.  IT DOES NOT SEEM
NECESSARY TO RECITE THE COMPLEX DETAILS OF INTERCORPORATE DEALINGS
BEFORE THE REORGANIZATION ABOUT 1940 AS THIS ACTION FOR INJUNCTION WAS
NOT BEGUN UNTIL 1943 AND THE CRUCIAL QUESTION IS WHETHER THERE WAS A
CONTEMPORANEOUS VIOLATION OR A THREAT OF VIOLATION AGAINST WHICH THE
WRIT OF THE COURT SHOULD BE DIRECTED.  VOLUNTARILY ABANDONED COURSES OF
CONDUCT ARE NOT GROUNDS FOR INJUNCTION, THOUGH THEY MAY SOMETIMES BE
RELEVANT EVIDENCE OF INTENT OR SIMILAR ISSUES. 

AT ALL TIMES CRUCIAL TO THE GOVERNMENT'S CASE, BETHLEHEM CONTROLLED
THE STOCK OF BOTH THE SHIPPER AND THE CARRIER CORPORATIONS.  IT
UNQUESTIONABLY HAD POWER TO FAVOR ITS SHIPPING SUBSIDIARY AT THE
EXPENSE OF ITS CARRYING SUBSIDIARY, OR VICE VERSA.  THE FIRST QUESTION
IS WHETHER WE WILL NOW HOLD THAT MERE POSSESSION OF THE POWER,
REGARDLESS OF WHETHER IT IS EXERCISED OR REMAINS DORMANT, MAKES OUT A
VIOLATION OF THE STATUTE.  THIS COURT SAID IN THE ELGIN CASE THAT IT
DOES NOT. 

IT IS THE GOVERNMENT'S CONTENTION THAT THE ELGIN DECISION
MISCONSTRUED THE ACT, MISUNDERSTOOD ITS LEGISLATIVE HISTORY AND
MISAPPLIED THE COURT'S OWN PRIOR DECISIONS.  IT IS NOT NECESSARY IN THE
VIEW WE TAKE OF THE CASE TO DECIDE TO WHAT EXTENT, IF ANY, THESE
CONTENTIONS ARE CORRECT.  IT IS ENOUGH TO SAY THAT IF THE ELGIN CASE
WERE BEFORE US AS A CASE OF FIRST IMPRESSION, ITS DOCTRINE MIGHT NOT
NOW BE APPROVED.  BUT WE DO NOT WRITE ON A CLEAN SLATE.  WHAT THE COURT
HAS WRITTEN BEFORE IS BUT ONE OF A SERIES OF EVENTS, WHICH CONVINCES US
THAT ITS OVERRULING OR MODIFICATION SHOULD BE LEFT TO CONGRESS.  AS THE
COURT HELD ON OUR LAST DECISION DAY, WHEN THE QUESTIONS ARE OF
STATUTORY CONSTRUCTION, NOT OF CONSTITUTIONAL IMPORT, CONGRESS CAN
RECTIFY OUR MISTAKE, IF SUCH IT WAS, OR CHANGE ITS POLICY AT ANY TIME,
AND IN THESE CIRCUMSTANCES REVERSAL IS NOT READILY TO BE MADE. 
MASSACHUSETTS V. UNITED STATES, 333 U.S. 611, DECIDED APRIL 19, 1948. 
MOREOVER, IN THIS CASE, UNLIKE THE CITED ONE, CONGRESS HAS CONSIDERED
THE ALLEGED MISTAKE AND DECIDED NOT TO CHANGE IT. 

THE INTERSTATE COMMERCE COMMISSION, AFTER REPEATEDLY CALLING THE
ATTENTION OF CONGRESS TO THE ELGIN CASE DURING ITS PENDENCY, IN 1936
REPORTED ITS DEFEAT IN THE LITIGATION.  REFERRING TO COMMODITIES CLAUSE
CASES IT SAID, "WE RECOMMEND THAT CONGRESS, IN THE LIGHT OF FACTS
ALREADY MADE AVAILABLE IN OUR REPORTS AND IN REPORTS OF INVESTIGATIONS
CONDUCTED BY CONGRESSIONAL COMMITTEES, SHALL DETERMINE THE APPROPRIATE
LIMIT OF OUR JURISDICTION IN SUCH CASES AND WHETHER FURTHER LEGISLATION
TO EXTEND THAT JURISDICTION IS NECESSARY."  FN4  CONGRESS TOOK NO
ACTION. 

BUT ITS INACTION HAS NOT BEEN FROM INADVERTENCE OR FAILURE TO
APPRECIATE THE EFFECT OF THE COURT'S INTERPRETATION.  A BILL WAS
INTRODUCED IN THE SENATE CONTAINING LANGUAGE RELATING TO AFFILIATES AND
SUBSIDIARIES CALCULATED IN EFFECT TO SET ASIDE THE ELGIN DECISION.  FN5

"IT SHALL BE UNLAWFUL FOR ANY CARRIER BY RAILROAD AND, ON AND AFTER
JANUARY 1, 1941, IT SHALL BE UNLAWFUL FOR ANY CARRIER, OTHER THAN A
CARRIER BY AIR, TO TRANSPORT, IN COMMERCE SUBJECT TO THIS ACT, ANY
ARTICLE OR COMMODITY, OTHER THAN TIMBER AND THE MANUFACTURED PRODUCTS
THEREOF, MANUFACTURED, MINED, OR PRODUCED BY OR UNDER THE AUTHORITY OF
SUCH CARRIER OR ANY SUBSIDIARY, AFFILIATE, OR CONTROLLING PERSON OF
SUCH CARRIER, OR ANY SUCH ARTICLE OR COMMODITY IN WHICH SUCH CARRIER,
SUBSIDIARY, AFFILIATE, OR CONTROLLING PERSON HAS ANY INTEREST, DIRECT
OR INDIRECT, LEGAL OR EQUITABLE, EXCEPT SUCH ARTICLES OR COMMODITIES AS
MAY BE NECESSARY OR INTENDED FOR USE IN THE CONDUCT OF THE CARRIER
BUSINESS OF SUCH CARRIER." 

THE ITALICIZED PORTIONS INDICATE THE PROPOSED ADDITIONS WHICH WOULD
HAVE EXTENDED THE CLAUSE TO COVER (1) CARRIERS OTHER THAN RAILROADS,
AND (2) SUBSIDIARIES, AFFILIATES AND CONTROLLING PERSONS. 

AT THE BEGINNING OF HEARINGS THEREON BY THE SENATE COMMITTEE ON
INTERSTATE COMMERCE ITS CHAIRMAN SAID THAT, WITH RESPECT TO THE
COMMODITIES CLAUSE, THE PURPOSE OF THE BILL WAS "TO MAKE EFFECTIVE THE
INTENT OF CONGRESS IN PROHIBITING RAILROADS, OR OTHER CARRIERS AFTER
JANUARY 1, 1941, FROM TRANSPORTING PRODUCTS NOT UTILIZED IN THE CONDUCT
OF THEIR TRANSPORTATION BUSINESS BUT IN WHICH THEY HAVE AN INTEREST,
DIRECT OR INDIRECT."  FN6  A WEEK LATER, IN THE COURSE OF THE HEARINGS
WHEN EVIDENCE BEGAN TO BE OFFERED SHOWING THE EFFECT THE PROPOSED
CLAUSE MIGHT HAVE ON VARIOUS INDUSTRIES, THE CHAIRMAN MADE THIS
STATEMENT: 

"LET ME SAY THIS TO YOU WITH REFERENCE TO THE COMMODITIES CLAUSE, SO
THAT THERE WILL NOT BE A LOT OF TIME WASTED ON IT.  I AM SPEAKING FOR
MYSELF AND NOT FOR THE COMMITTEE.  I THINK THE COMMODITIES CLAUSE WILL
HAVE TO BE CHANGED; AND IF WE ARE GOING TO MAKE SUCH DRASTIC CHANGES IN
THE COMMODITY CLAUSE AS THIS BILL WOULD SUGGEST, I THINK IT OUGHT NOT
TO BE INCORPORATED IN THIS PARTICULAR PIECE OF LEGISLATION, BUT SHOULD
COME UP AS A SEPARATE PIECE OF LEGISLATION SO THAT WE CAN DEVOTE
CONSIDERABLE TIME AND THOUGHT TO THAT PARTICULAR SUBJECT.  THIS WOULD
SO CHANGE THE ECONOMIC STRUCTURE OF A LOT OF INDUSTRIES THAT I THINK IT
IS SOMETHING THAT WOULD HAVE TO HAVE PARTICULAR CONSIDERATION IN A
SEPARATE PIECE OF LEGISLATION."  FN7 

IN A FURTHER DISCUSSION THE CHAIRMAN ADDED:  "I MIGHT SAY, ALSO, THAT
IF THE COMMODITIES CLAUSE SHOULD STAY IN AS IT IS AT THE PRESENT TIME
IT WOULD DISRUPT A GREAT MANY INDUSTRIES, AND I WOULD SERIOUSLY
QUESTION AS TO WHETHER OR NOT I WANTED TO ATTEMPT ANYTHING OF THAT KIND
AT THIS TIME, PARTICULARLY IN THIS SPECIFIC PIECE OF LEGISLATION." 
FN8 

WHEN THE BILL WAS REPORTED TO THE SENATE, THE PROPOSED CHANGE HAD
BEEN ELIMINATED AND THE ORIGINAL LANGUAGE OF THE ACT RETAINED.  THE
COMMITTEE, IN REPORTING THE BILL, SAID, "THE REWRITTEN COMMODITIES
CLAUSE WAS CONSIDERED FAR TOO DRASTIC AND THE SUBCOMMITTEE EARLY
DECIDED AGAINST ANY CHANGE THEREIN."  FN9 

THE GOVERNMENT ARGUES THAT THE CHARACTERIZATION OF THE REJECTED
REVISED COMMODITIES CLAUSE AS "TOO DRASTIC" WAS BASED ON THE PROPOSED
EXTENSION OF ITS TERMS TO ALL COMMON CARRIERS AND NOT ON THE PROPOSAL
TO INCLUDE A "SUBSIDIARY, AFFILIATE, OR CONTROLLING PERSON" OF A
CARRIER.  WE BELIEVE, HOWEVER, THAT A FAIR READING OF THE LEGISLATIVE
HISTORY LEADS TO THE CONCLUSION THAT THE "DRASTIC READJUSTMENT" FEARED
BY THE COMMITTEE WAS THAT EXPECTED FROM THE APPLICATION SOUGHT HERE BY
THE GOVERNMENT, AT LEAST AS MUCH AS THAT FEARED FROM EXTENSION OF THE
CLAUSE TO COVER CARRIERS OTHER THAN RAILROADS.  IF THE COMMITTEE
OBJECTED ONLY TO EXTENDING THE CLAUSE TO OTHER CARRIERS, IT WOULD HAVE
BEEN A SIMPLE MATTER TO DELETE THE SHORT SERIES OF WORDS WHICH WOULD
HAVE ACCOMPLISHED THAT CHANGE, AND STILL LEAVE UNDISTURBED THE MORE
COMPLICATED PROVISION CONCERNING SUBSIDIARIES AND AFFILIATES, SINCE THE
TEXT OF EACH PROVISION IS WHOLLY DISCONNECTED FROM THE OTHER. 

IN VIEW OF THE FOREGOING, IT SEEMS CLEAR THAT WHEN, IN DISCUSSING
WHETHER OR NOT THIS REVISED CLAUSE WOULD HAVE "PREVENTED THE STEEL
COMPANY, OR SOMEBODY IN THAT POSITION, FROM OPERATING THEIR OWN
RAILROAD," THE COMMITTEE CHAIRMAN SAID "I DID NOT INTEND SUCH A
RESULT," HE EXPRESSED THE VIEW WHICH PREVAILED IN THE COMMITTEE AND IN
THE CONGRESS. 

THE GOVERNMENT NOW ASKS US TO APPLY THE UNCHANGED LANGUAGE AS IF
CONGRESS HAD ADOPTED THE PROPOSAL WHICH IT REJECTED AS "FAR TOO
DRASTIC."  THE CONSIDERATIONS WHICH LED TO THE SUGGESTION THAT THE
PROBLEM PRESENTED BY THE GOVERNMENT'S POSITION WOULD REQUIRE SEPARATE
LEGISLATION AND PARTICULAR CONSIDERATION SEEMS TO US TO REQUIRE THAT
THE PROBLEM BE LEFT TO LEGISLATION RATHER THAN TO THE JUDICIAL
PROCESS.  AND THE PERTINENT PORTIONS OF THE LEGISLATIVE HISTORY WHICH
ARE SET OUT AT LENGTH IN THE MARGIN  FN10  INDICATE CLEARLY, WE THINK,
THAT THIS SENATE COMMITTEE RESPONSIBLE FOR S. 2009, WHICH BECAME THE
TRANSPORTATION ACT OF 1940, DELIBERATELY REFUSED TO RECOMMEND AND THE
CONGRESS REFUSED TO LEGISLATE INTO THE LAW THE CHANGE WE ARE NOW ASKED
TO MAKE BY JUDICIAL DECISION. 

WE COULD, OF COURSE, REFUSE TO FOLLOW THE ELGIN PRECEDENT, AND APPLY
A DIFFERENT AND MORE DRASTIC RULE TO BETHLEHEM THAN APPLIES TO ITS
COMPETITOR.  CONGRESS, HOWEVER, IN MAKING A RULE FOR THE FUTURE, CAN
MAKE ONE OF IMPARTIAL APPLICATION TO ALL LIKE SITUATIONS.  LIMITATIONS
THAT ARE TRADITIONAL UPON OUR POWERS DO SEEM NOT TO PERMIT US TO DO
SO. 

WHATEVER MAY BE SAID OF THE ELGIN DECISION, WHEN THE COMMITTEE OF
CONGRESS FACED THE READJUSTMENTS ITS OVERRULING WOULD FORCE, AND WITH
SPECIAL REFERENCE TO THE STEEL INDUSTRY,  FN11 IT CONCLUDED THE
DECISION SHOULD BE ALLOWED, AT LEAST FOR THE PRESENT, TO STAND.  WE
CANNOT IGNORE THE CONSIDERATIONS THEY FOUND TO BE SO PERSUASIVE, AND
WHICH ARE EQUALLY INVOLVED IN THE REQUEST THAT WE DO WHAT CONGRESS
CONSIDERED AND ABANDONED. 

THE RELIEF ASKED OF US AS A COURT OF EQUITY IS SO DRASTIC IN NATURE
AS TO AFFORD AN EXAMPLE OF AN "UPSET" IN AN INDUSTRY OWNING A SHORT
LINE OF RAILROAD OF THE TYPE REFERRED TO BY THE CHAIRMAN OF THE
INTERSTATE COMMERCE COMMITTEE OF THE SENATE, WHO SAID "IT IS
QUESTIONABLE WHETHER WE WOULD WANT TO MAKE SUCH A RADICAL DEPARTURE
FROM THE PRESENT SYSTEM."  THE DEMAND IS FOR AN INJUNCTION PERPETUALLY
TO ENJOIN AND RESTRAIN SOUTH BUFFALO FROM TRANSPORTING COMMODITIES IN
WHICH THE STEEL COMPANY OR THE HOLDING COMPANY OWNS AN INTEREST.  THERE
IS NO OTHER RAIL ROUTE BY WHICH INBOUND RAW MATERIALS OR OUTBOUND
PRODUCTS OF THIS HUGE INDUSTRY CAN REACH TRUNK-LINE RAILROADS.  AND THE
TRAFFIC THAT WE ARE ASKED THUS TO PROHIBIT YIELDS 70% OF THE RAILROAD'S
REVENUES, AND IF TAKEN AWAY WOULD DOUBTLESS SUBSTANTIALLY INCREASE THE
COST OF SERVICE TO THE UNAFFILIATED INDUSTRIES THAT WOULD REMAIN TO BE
SERVED.  OF COURSE, WHAT IS LITERALLY ASKED IS PROBABLY NOT WHAT IS
ULTIMATELY DESIRED.  TO FORBID THE PHYSICAL OPERATION AS NOW CONDUCTED
WOULD BE NEEDLESSLY DAMAGING TO BOTH SHIPPER AND CARRIER.  WHAT IS
AIMED AT, WE SUPPOSE, IS TO FORCE SUCH A CHANGE OF FINANCIAL STRUCTURE
AS WILL DIVORCE SHIPPER INTEREST FROM ALL TRANSPORTATION INTEREST.  IT
SEEMS CLEAR, HOWEVER, IN THE LIGHT OF THE LEGISLATIVE HISTORY, THAT
THIS IS THE KIND OF OPERATION THAT CONGRESS DID NOT WANT TO PROHIBIT
BECAUSE THE PROHIBITION WAS THOUGHT TOO DRASTIC.  IF AN INDEPENDENT
OWNERSHIP COULD BE FOUND FOR SOUTH BUFFALO, IT MIGHT BE DESIRABLE.  BUT
INDEPENDENT OWNERSHIP OF A DEPENDENT FACILITY WEDGED IN BETWEEN
SHIPPERS, ONE OF WHOM CONTROLS 70% OF ITS REVENUES, AND THE TRUNK-LINE
RAILROADS, IS NOT SHOWN TO BE LIKELY.  UNDER THE GOVERNMENT'S THEORY,
NO OTHER SHIPPER OR GROUP OF SHIPPERS ANY MORE THAN BETHLEHEM COULD OWN
THE ROAD.  NOR IS IT CLEAR THAT ANY EVILS EXIST OR ARE THREATENED WHICH
WOULD BE ELIMINATED IF THIS OPERATION WERE TRANSFERRED TO CONTROL OF
ONE OF THE TRUNK-LINE RAILROADS OR TO A POOL OF THEM.  THIS ROAD,
DESPITE ITS SHIPPER OWNERSHIP, IS BOUND BY BOTH FEDERAL AND STATE LAW
TO SERVE ALL SHIPPERS WITHOUT DISCRIMINATIONS OR UNREASONABLE CHARGES. 
THE COMMISSION HAS POWER TO EXACT COMPLIANCE WITH THESE DUTIES.  THE
ARGUMENT, HOWEVER, IS THAT A SITUATION EXISTS WHICH PRESENTS
OPPORTUNITY AND TEMPTATION FOR ABUSE AND FOR CONCEALED EVASIONS OF
DUTY.  BUT TO FORESTALL POSSIBLE ABUSES WE ARE ASKED TO APPLY A REMEDY
WHICH THERE IS INDICATION FAILED OF CONGRESSIONAL APPROVAL BECAUSE ITS
APPLICATION TO MANY SITUATIONS WOULD BE TOO DRASTIC AND WOULD DO
GREATER INJURY TO SHIPPER AND TRANSPORTATION INTERESTS THAN COULD
RESULT FROM ITS WITHHOLDING.  IN THE LIGHT OF THE HISTORY OF THIS
CLAUSE SINCE THE ELGIN DECISION AND THE EQUITABLE CONSIDERATIONS
INVOLVED IN THIS CASE, WE DECLINE TO OVERRULE THE INTERPRETATION
CONGRESS HAS NOT SEEN FIT TO SET ASIDE. 

THE ARGUMENT IS MADE THAT EVEN ACCEPTING THE ELGIN DECISION THE
EVIDENCE HERE ESTABLISHES THAT BETHLEHEM HAS SO EXERCISED ITS POWER
OVER SOUTH BUFFALO AS TO REDUCE THE RAILROAD TO A MERE DEPARTMENT OF
BETHLEHEM.  THE TRIAL COURT FOUND AGAINST THE GOVERNMENT AND CONSIDERED
THAT ON THIS SUBJECT THIS CASE CONTAINS MUCH LESS PROOF TO SUSTAIN AN
INJUNCTION THAN DID THE ELGIN CASE.  WITHOUT RECITING THE VOLUMINOUS
EVIDENCE IN DETAIL, WE AGREE.  BETHLEHEM, AS A STOCKHOLDER, OF COURSE
CONTROLLED SOUTH BUFFALO.  IT DID NOT, HOWEVER, DISREGARD IN EITHER THE
LEGAL OR ECONOMIC SENSE, THE SEPARATE ENTITY OF ITS SUBSIDIARY OR TREAT
IT AS ITS OWN ALTER EGO.  ON THE CONTRARY, IT RATHER OSTENTATIOUSLY
MAINTAINED THE FORMALITIES OF SEPARATE EXISTENCE, CHOOSING AS DIRECTORS
SEVERAL BUFFALO CITIZENS WHO WERE NOT INTERESTED IN BETHLEHEM.  WE ARE
NOT NAIVE ENOUGH TO BELIEVE THAT BETHLEHEM CHOSE MEN FOR THE POSTS
WHOSE INTERESTS OR RECORDS LEFT ANY FAIR PROBABILITY THAT THEY WOULD
ACT ADVERSELY TO BETHLEHEM IN REPRESENTING ITS INTEREST AS CHIEF
STOCKHOLDER OF THE RAILROAD.  NOR HAS ANY INSTANCE BEEN CITED IN WHICH
THE BEST INTERESTS OF THE RAILROAD WOULD REQUIRE THEM TO DO SO.  SO
LONG AS CONGRESS CONSIDERS IT INADVISABLE TO EXTEND THE PROHIBITION OF
THE COMMODITIES CLAUSE TO SUBSIDIARIES AND AFFILIATES, WE SEE NOTHING
THAT BETHLEHEM HAS DONE TO INCUR LIABILITY FOR ITS VIOLATION.  OF
COURSE, IT COULD NOT EXPECT THE COMMISSION OR THE COURTS TO RESPECT A
CORPORATE ENTITY WHICH BETHLEHEM ITSELF DISREGARDED; BUT THAT IT HAS
NOT DONE.  THE SUBSIDIARY WOULD NOT HAVE TO ESTABLISH ITS SEPARATE
IDENTITY BY A COURSE OF HOSTILITY TO ITS SOLE STOCKHOLDER OR ITS CHIEF
CUSTOMER.  ITS IDENTITY HAS BEEN PRESERVED IN FORM AND IN SUBSTANCE -
THE SUBSTANCE OF SEPARATE CORPORATE EXISTENCE BEING ITSELF LARGELY A
MATTER OF FORM.  UNDER THE ELGIN CASE AND UNTIL CONGRESS SHALL
OTHERWISE DECIDE, THIS IS SUFFICIENT.  JUDGMENT AFFIRMED. 

FN1  49 U.S.C. SEC. 45; 28 U.S.C. SEC. 345. 

FN2  49 U.S.C. SEC. 1(8). 

FN3  THE COMPLETE TEXT OF THE COMMODITIES CLAUSE PROVIDES:  "FROM AND
AFTER MAY FIRST, NINETEEN HUNDRED AND EIGHT, IT SHALL BE UNLAWFUL FOR
ANY RAILROAD COMPANY TO TRANSPORT FROM ANY STATE, TERRITORY, OR THE
DISTRICT OF COLUMBIA, TO ANY OTHER STATE, TERRITORY, OR THE DISTRICT OF
COLUMBIA, OR TO ANY FOREIGN COUNTRY, ANY ARTICLE OR COMMODITY, OTHER
THAN TIMBER AND THE MANUFACTURED PRODUCTS THEREOF, MANUFACTURED, MINED,
OR PRODUCED BY IT, OR UNDER ITS AUTHORITY, OR WHICH IT MAY OWN IN WHOLE
OR IN PART, OR IN WHICH IT MAY HAVE ANY INTEREST, DIRECT OR INDIRECT,
EXCEPT SUCH ARTICLES OR COMMODITIES AS MAY BE NECESSARY AND INTENDED
FOR ITS USE IN THE CONDUCT OF ITS BUSINESS AS A COMMON CARRIER." 

FN4  50TH ANNUAL REPORT I.C.C. 30(1936). 

FN5  S. 2009, 76TH CONG., 1ST SESS., MARCH 30(LEGISLATIVE DAY MARCH
28) 1939. 

FN6 HEARINGS BEFORE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S.
2009, 76TH CONG., 1ST SESS., 3(APRIL 3, 1939). 

FN7  ID., AT 427(APRIL 10, 1939). 

FN8  IBID. 

FN9  SENATE REPORT NO. 433, 76TH CONG., 1ST SESS., 15(MAY 16,
LEGISLATIVE DAY MAY 8, 1939). 

FN10  THE EXTENT OF THE CONSIDERATION WHICH THE SENATE INTERSTATE
COMMERCE COMMITTEE GAVE TO THE PROPOSED REVISION OF THE COMMODITIES
CLAUSE IS INDICATED BY THE FOLLOWING EXCERPTS FROM HEARINGS ON S. 2009,
HELD FROM APRIL 3 TO APRIL 14, 1939: 

IN OPENING THE HEARING, SENATOR WHEELER, CHAIRMAN, STATED THAT, WITH
RESPECT TO THE COMMODITIES CLAUSE, THE PURPOSE OF THE BILL WAS "TO MAKE
EFFECTIVE THE INTENT OF CONGRESS IN PROHIBITING RAILROADS, OR OTHER
CARRIERS AFTER JANUARY 1, 1941, FROM TRANSPORTING PRODUCTS NOT UTILIZED
IN THE CONDUCT OF THEIR TRANSPORTATION BUSINESS BUT IN WHICH THEY HAVE
AN INTEREST, DIRECT OR INDIRECT." 

DURING THE TESTIMONY OF THE GENERAL COUNSEL, ASSOCIATION OF AMERICAN
RAILROADS, THE FOLLOWING COLLOQUIES TOOK PLACE: 

"SENATOR REED.  JUDGE, IN SECTION 12 THERE IS SOME NEW LANGUAGE.  I
HAVE MARKED IT 'O.K.'  HERE.  THAT IS TO COVER THE DECISIONS OF THE
SUPREME COURT IN THE E.J. & E. CASE? 

MR. FLETCHER.  I WILL GET TO THAT IN JUST A MOMENT.  THERE IS NEW
LANGUAGE IN THERE.  ... 

     .         .         .      .         . 

MR. FLETCHER.  I COME TO SECTION 12, THE COMMODITIES CLAUSE, ABOUT
WHICH I WOULD LIKE TO SAY A WORD. 

IT WAS THE THOUGHT OF THOSE WHO DREW THE BILL, H.R. 4862, TO UNDERTAKE
TO PUT INTO STATUTORY FORM THE RECOMMENDATION OF THE COMMITTEE OF SIX
THAT THEY OUGHT TO EXTEND THE COMMODITIES CLAUSE, WHICH NOW APPLIES
ONLY TO RAILROADS, TO WATER CARRIERS AND MOTOR CARRIERS AS WELL. 

NOW, I THINK THE WATER CARRIER PEOPLE WILL OBJECT TO THAT.  ... 

...  I THINK SOME OF THE STEEL COMPANIES HAVE WATER OPERATIONS OF
THAT KIND.  I MENTION THAT AS A CHANGE IN THE LAW SUGGESTED BY THE
DRAFTSMEN WHO PREPARED THE BILL, REFLECTING THE VIEWS OF THE COMMITTEE
OF SIX. 

THE CHAIRMAN.  JUDGE, SOMEBODY CALLED ME ON THE PHONE THE OTHER DAY
...  AND ASKED ME AS TO WHETHER OR NOT IN MY OPINION THIS PREVENTED THE
STEEL COMPANY, OR SOMEBODY IN THAT POSITION, FROM OPERATING THEIR OWN
RAILROAD, WHERE THEY HAVE A SMALL RAILROAD THAT THEY ARE OPERATING.  I
DID NOT INTEND SUCH A RESULT. 

MR. FLETCHER.  THIS BILL HAS NO RELATION TO THAT.  ONE OF MY
ASSOCIATES SUGGESTS, SENATOR, THAT POSSIBLY THIS LANGUAGE, WHICH I WAS
JUST ABOUT TO MENTION AND WHICH WAS CALLED TO MY ATTENTION A FEW
MINUTES AGO BY SENATOR REED, MIGHT POSSIBLY HAVE THAT EFFECT. 

SENATOR REED.  I WOULD DISAGREE WITH THE CHAIRMAN, IF I MAY BE SO
BOLD.  I THINK THE COMMODITIES CLAUSE WOULD HAVE THAT EFFECT IN THE
BILL THAT WE ARE CURRENTLY DISCUSSING. 

MR. FLETCHER.  WHEN I SAID SO PROMPTLY AND PERHAPS RASHLY THAT I DID
NOT THINK IT DID, I DID NOT HAVE IN MIND THIS PARTICULAR AMENDMENT,
WHICH I WILL NOW MENTION. 

SENATOR REED.  I AM PERFECTLY WILLING THAT IT SHOULD HAVE THAT
EFFECT. 

THE CHAIRMAN.  WELL, I DOUBT THAT IT SHOULD.  FOR INSTANCE, A LUMBER
COMPANY MAY OWN SOME RAILROAD. 

SENATOR REED.  YOU EXEMPT THAT? 

MR. FLETCHER.  YOU EXEMPT THE LUMBER COMPANY? 

THE CHAIRMAN.  YES. 

MR. FLETCHER.  IT MIGHT NOT BE ALTOGETHER LUMBER. 

THE CHAIRMAN.  I WAS SPEAKING, FOR INSTANCE, OF SOME STEEL COMPANY OR
SOME OTHER INDUSTRIAL COMPANY WHICH MIGHT OWN A SHORT RAILROAD. 

SENATOR REED.  THE UNITED STATES STEEL CO. OWNS THE UNION RAILROAD
CO. 

THE CHAIRMAN.  I DO NOT KNOW WHAT THE UNION RAILROAD CO. IS. 

SENATOR REED.  IT IS A SHORT ROAD. 

MR. FLETCHER.  I THINK THE E.J. & E. STARTED ALL THIS SHOUTING. 

SENATOR REED.  IN SECTION 12, ON PAGE 44, BEGINNING AT LINE 22, IT
READS:  'OR PRODUCED BY OR UNDER THE AUTHORITY OF SUCH CARRIER OR ANY
SUBSIDIARY, AFFILIATE' - AND THIS IS THE LANGUAGE - 'OR CONTROLLING
PERSON OF SUCH CARRIER.' 

MR. FLETCHER.  THAT IS NEW, YOU SEE. 

SENATOR REED.  THAT IS NEW.  I AM IN ACCORD WITH THE CHAIRMAN ON THAT
LANGUAGE. 

MR. FLETCHER.  I DO NOT KNOW, MR. CHAIRMAN, BUT I DO THINK IT IS A
TRIFLE UNFORTUNATE TO TRY TO ACCOMPLISH SO DRASTIC A THING IN A BILL OF
THIS KIND, THE THOUGHT OF WHICH WAS TO REPRODUCE EXISTING LAW. 

THE CHAIRMAN.  I AM VERY DOUBTFUL ABOUT IT.  I AM AFRAID THAT IT WILL
CAUSE SUCH A DRASTIC READJUSTMENT. 

MR. FLETCHER.  THE E.J. & E. CO. (CASE) - 

THE CHAIRMAN (INTERPOSING).  I AM NOT FAMILIAR WITH THE E.J. & E.
CASE. 

MR. FLETCHER (CONTINUING).  - BROUGHT ABOUT THIS SUGGESTION HERE. 
THERE THE UNITED STATES STEEL CORPORATION DOES NOT OWN THE E.J. & E.
DIRECTLY, BUT THROUGH THE MEDIUM OF THE ILLINOIS STEEL CORPORATION, A
SUBSIDIARY OF THE UNITED STATES STEEL CO. - AND I MAY GET THAT A LITTLE
CONFUSED - 

SENATOR REED (INTERPOSING).  YOU HAVE. 

MR. FLETCHER.  MY RECOLLECTION IS THAT THE UNITED STATES STEEL
CORPORATION OWNS A COMPANY - YOU MIGHT CALL IT A HOLDING COMPANY -
WHICH HOLDING COMPANY OWNS BOTH THE E.J. & E. AND THE STEEL
CORPORATION. 

IT WAS CONTENDED BY THE GOVERNMENT THAT WHEN THE E.J. & E.
TRANSPORTED FREIGHT FOR THE ILLINOIS STEEL CORPORATION THEY WERE
VIOLATING THE COMMODITIES CLAUSE, BECAUSE EITHER DIRECTLY OR INDIRECTLY
THE RAILROAD OWNED THIS TRAFFIC THAT WAS BEING TRANSPORTED, BUT THE
SUPREME COURT OF THE UNITED STATES HELD NOT, BUT WHERE YOU HAD ONE
COMPANY OR PERSON WHO OWNED BOTH THE RAILROAD AND THE COMMERCIAL
ENTERPRISES THAT PRODUCED THE TONNAGE, THE TRANSPORTATION BY THE
RAILROAD OF THAT TONNAGE WAS NOT EQUIVALENT TO THE TRANSPORTATION BY
THE RAILROAD OF TONNAGE WHICH IT OWNED. 

SENATOR REED.  JUDGE, YOU REMEMBER THAT JUSTICE STONE, JUSTICE
BRANDEIS, AND JUSTICE CARDOZO DISSENTED FROM THAT MAJORITY OPINION OF
THE SUPREME COURT IN THE E.J. & E. CASE. 

MR. FLETCHER.  THAT IS RIGHT. 

SENATOR REED.  AND JUSTICE STONE WROTE THE DISSENTING OPINION. 

MR. FLETCHER.  YES. 

SENATOR REED.  I AM INCLINED TO THINK THAT THE SUPREME, AS PRESENTLY
CONSTITUTED, WOULD HOLD WITH WHAT WAS THE MINORITY VIEW. 

MR. FLETCHER.  I WOULD NOT EXPRESS ANY OPINION ON THAT. 

SENATOR REED.  I SPEAK FRANKLY, BEING NO LAWYER MYSELF. 

MR. FLETCHER.  WHETHER THAT IS WISE OR UNWISE, I DOUBT IF IT OUGHT TO
BE DONE IN THIS LEGISLATION AND IN THIS BILL. 

SENATOR REED.  I THOUGHT JUSTICE STONE WROTE A MORE LOGICAL OPINION
THAT JUSTICE BUTLER DID.  I THINK IT WAS JUSTICE BUTLER WHO WROTE THE
MAJORITY OPINION IN THAT E.J. & E. CASE. 

MR. FLETCHER.  I THINK IT WAS."  (JUSTICE MCREYNOLDS WROTE THE
OPINION OF THE COURT.) 

LATER, DURING THE TESTIMONY OF COUNSEL FOR MISSISSIPPI RIVER SYSTEM
CARRIERS' ASSOCIATION, THE FOLLOWING STATEMENTS CONCERNING THE
COMMODITIES CLAUSE WERE MADE: 

"SENATOR REED.  ...  AND I THINK WE MIGHT GIVE FURTHER CONSIDERATION
TO THAT COMMODITIES CLAUSE. 

MR. BAYLESS.  IT IS TOO DRASTIC, ALSO. 

SENATOR REED.  IT WAS PROBABLY TIGHTENED UP WHEN, WHICH I SAY AS A
LAYMAN AND THEREFORE NOT IN FEAR OF BEING CRITICIZED, THE SUPREME COURT
OF THE UNITED STATES MADE A STRANGE DECISION IN THE E.J. & E. CASE. 
THIS WAS TIGHTENED TO MEET THAT E.J. & E. DECISION, BECAUSE I THINK
THAT WAS A STRANGE CONSTRUCTION OF THE LAW ON THE PART OF THE SUPREME
COURT OF THE UNITED STATES." 

TESTIMONY BY COUNSEL FOR COAL OPERATORS LED TO THE FOLLOWING: 

"SENATOR WHITE.  WHAT CHANGES HAVE BEEN MADE IN THE COMMODITIES
CLAUSE? 

MR. NORMAN.  VERY SUBSTANTIAL ONES. 

THE CHAIRMAN.  VERY SUBSTANTIAL. 

MR. NORMAN.  THAT IS ON PAGE 44. 

THE CHAIRMAN.  WHAT WE TRIED TO DO, TO BE FRANK WITH YOU, WAS TO TRY
TO ADAPT IT TO MEET THE DECISION OF THE SUPREME COURT IN THE E.J. & E.
CASE. 

SENATOR REED.  I THINK, OF COURSE, WHAT MR. NORMAN HAS IN MIND IS
THAT IT GOES FURTHER THAN THAT, IN THAT FOR THE FIRST TIME WE ARE
APPLYING THE COMMODITIES CLAUSE TO WATER CARRIERS. 

SENATOR WHITE.  I UNDERSTOOD THAT, BUT IN WHAT OTHER RESPECTS? 

SENATOR REED.  I THINK THAT IS THE ONLY RESPECT. 

MR. NORMAN.  WELL, NO; AS THE SENATOR SAYS, IT PROBABLY WOULD GET
AROUND THE SUPREME COURT DECISION IN THE E.J. & E. CASE, BECAUSE IT
PUTS IN THERE THE WORDS 'SUBSIDIARY, AFFILIATE, OR CONTROLLING PERSON
OF SUCH CARRIER.' 

THE CHAIRMAN.  THAT IS RIGHT." 

A DISCUSSION OF THE EFFECT ON COAL-INDUSTRY CONTRACT CARRIERS
FOLLOWED.  THEN: 

"MR. NORMAN.  SO THAT COMMODITIES CLAUSE, AGAIN, IS A BIG ONE AND
CERTAINLY OUGHT TO BE STUDIED BEFORE THERE ARE ANY CHANGES MADE IN IT.
IT IS LOADED WITH DYNAMITE SO FAR AS BUSINESS IS CONCERNED. 

SENATOR REED.  YOU MAY HAVE ONE KIND IN MIND, BUT THERE ARE MANY OF
THEM. 

THE CHAIRMAN.  THERE ARE DIFFICULTIES ON THAT QUESTION, IN MY MIND. 
SUPPOSE WE REENACTED THE LAW AS IT IS.  THE QUESTION IS WHETHER THE
COURTS MIGHT SAY, IN VIEW OF THE SUPREME COURT'S DECISION, 'IN
REENACTING THE LAW YOU APPROVED THE DECISION OF THE SUPREME COURT.'" 

ON APRIL 10, 1939, THE CHAIRMAN, IN ADDITION TO THE STATEMENTS QUOTED
IN THE BODY OF THIS OPINION ALSO SAID: 

"  ...  I WANT TO SAY THAT I THINK IT IS FOOLISH FOR A LOT OF PEOPLE
TO COME IN HERE AND WASTE OUR TIME AND THEIR OWN TIME IN TALKING ABOUT
THAT (THE COMMODITIES CLAUSE), AND FOR THAT REASON I WANTED TO MAKE IT
CLEAR BY THAT STATEMENT.  ...    "AS I SAID BEFORE, THIS IS SUCH A
BROAD SUBJECT AND IT WOULD UNDOUBTEDLY CAUSE A TREMENDOUS UPSET IN MANY
LINES OF BUSINESS, THAT IT IS QUESTIONABLE WHETHER WE WOULD WANT TO
MAKE SUCH A RADICAL DEPARTURE FROM THE PRESENT SYSTEM." 

AS POINTED OUT IN THE TEXT, WHEN THE BILL WAS REPORTED TO THE SENATE,
THE PROPOSED CHANGES IN THE COMMODITIES CLAUSE HAD BEEN ABANDONED.  THE
COMMITTEE REPORT STATED: 

"  ...  THE COMMODITIES CLAUSE, FORBIDDING A CARRIER BY RAILROAD TO
TRANSPORT ANY ARTICLE OR COMMODITY IN WHICH IT HAS AN INTEREST DIRECT
OR INDIRECT, WITH CERTAIN EXCEPTIONS NOT VERY MATERIAL (TIMBER AND
TIMBER PRODUCTS), HAS BEEN RETAINED.  ...  " 

"SECTION 12.  COMMODITIES CLAUSE.  THIS PROVISION RETAINS THE
'COMMODITIES CLAUSE' (SEC. 1(8) OF INTERSTATE COMMERCE ACT), NOW
APPLICABLE ONLY TO RAILROADS, IN ITS PRESENT FORM.  THE REWRITTEN
COMMODITIES CLAUSE WAS CONSIDERED FAR TOO DRASTIC AND THE SUBCOMMITTEE
EARLY DECIDED AGAINST ANY CHANGE THEREIN." 

FN11  SEE NOTE 10. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE MURPHY JOIN, DISSENTING. 

THIS IS ANOTHER CASE WHERE THE COURT SADDLES CONGRESS WITH THE LOAD
OF CORRECTING ITS OWN EMASCULATION OF A STATUTE, BY DRAWING FROM
CONGRESS' FAILURE EXPLICITLY TO OVERRULE IT THE UNJUSTIFIED INFERENCE
THAT CONGRESS APPROVES THE MISTAKE.  I THINK THAT UNITED STATES V.
ELGIN, JOLIET AND EASTERN R. CO., 298 U.S. 492, WAS DECIDED IN THE
TEETH OF THE COMMODITIES CLAUSE, 49 U.S.C. SEC. 1(8), THAT IT SHOULD
NOW BE OVERRULED, AND THAT THIS CONCLUSION IS DICTATED BY THE
LEGISLATIVE HISTORY WHICH THE COURT MISREADS, IN MY OPINION, AS GIVING
BASIS FOR THE OPPOSITE ONE. 

THE COMMODITIES CLAUSE FORBIDS "ANY RAILROAD COMPANY TO TRANSPORT
...  ANY ARTICLE OR COMMODITY ...  IN WHICH IT MAY HAVE ANY INTEREST,
DIRECT OR INDIRECT.  ...  "  THE ELGIN DECISION MADE THE CLAUSE "IN
WHICH IT MAY HAVE ANY INTEREST, DIRECT OR INDIRECT" READ, IN EFFECT,
"IN WHICH IT MAY HAVE ANY INTEREST, DIRECT OR INDIRECT, UNLESS THE
INTEREST IS INDIRECTLY HELD THROUGH 100 PER CENT STOCK OWNERSHIP OF
ANOTHER CORPORATION AND HENCE 100 PER CENT INTEREST IN THAT COMPANY'S
PROFITS, OR THROUGH SOME OTHER CORPORATE ARRANGEMENT HAVING LIKE
EFFECTS." 

THE SIMPLE QUESTION FOR DECISION UNDER THE STATUTE IS WHETHER THE
SOUTH BUFFALO RAILWAY HAS AN INTEREST, "DIRECT OR INDIRECT," IN THE
COMMODITIES WHICH IT HAULS FOR THE AFFILIATED BETHLEHEM STEEL COMPANY. 
ANY ATTEMPT TO ANSWER BY A FACTUAL INQUIRY INTO THE DEGREE OF CONTROL
WHICH THE HOLDING COMPANY OR THE STEEL COMPANY HAS ACTUALLY EXERCISED
OVER THE RAILROAD CAN ONLY COMPLICATE A SIMPLE PROBLEM.  FN1  ONLY BY
THE MOST SOPHISTICATED, OR UNSOPHISTICATED, PROCESS OF REASONING CAN IT
BE CONCLUDED THAT ANY ONE OF THE MANY SUBSIDIARY MEMBERS OF THIS
INTEGRATED STEEL-PRODUCING EMPIRE  FN2  HAS NO INTEREST IN THE
OPERATIONS OF EVERY OTHER MEMBER.  PARTICULARLY, THE RAILROAD HAS AN
INTEREST IN THE PRODUCTION OF THE STEEL COMPANY, "FOR ALL OF THE
PROFITS REALIZED FROM THE OPERATIONS OF THE TWO MUST FIND THEIR WAY
ULTIMATELY INTO ITS (THE HOLDING COMPANY) TREASURY,  - ANY
DISCRIMINATING PRACTICE WHICH WOULD HARM THE GENERAL SHIPPER  FN3
WOULD PROFIT THE HOLDING COMPANY."  UNITED STATES V. READING CO., 253
U.S. 26, 61.  HERE A RAILROAD AND ONE OF ITS CUSTOMERS ARE BOTH WHOLLY
OWNED SUBSIDIARIES OF THE SAME HOLDING COMPANY.  IT IS CLEAR TO ME, AND
THE COURT DOES NOT DENY, THAT THE RAILROAD IN FACT IS OCCUPYING THE
INCONSISTENT POSITIONS OF CARRIER AND SHIPPER WHICH THE COMMODITIES
CLAUSE WAS DESIGNED TO PREVENT.  UNITED STATES V. READING CO., SUPRA.
FN4 

THE COURT DOES NOT DISPUTE THAT IT WOULD SO HOLD IF THE CLAUSE HAD
NOT BEEN CONSTRUED DIFFERENTLY IN THE ELGIN CASE.  BUT EVEN ON THE
ASSUMPTION THAT THE STATUTE WAS THEN MISCONSTRUED, THE COURT IS
UNWILLING TO CORRECT ITS OWN ERROR BECAUSE IT CONCLUDES THAT CONGRESS
HAS SUBSEQUENTLY INDICATED APPROVAL OF THE ELGIN DECISION.  THIS
CONCLUSION IS BASED ON A DISTORTED VIEW OF THE LEGISLATIVE HISTORY OF
THE TRANSPORTATION ACT OF 1940, PARTICULARLY OF SEC. 12 OF S. 2009,
WHICH WOULD HAVE AMENDED THE COMMODITIES CLAUSE IF ADOPTED.  SINCE THE
PROPOSED SEC. 12 WOULD HAVE OVERRULED THE ELGIN CASE, AND SINCE IT WAS
REJECTED IN COMMITTEE AS "FAR TOO DRASTIC," FN5  IT IS INFERRED THAT
CONGRESS HAS EXPRESSED APPROVAL OF THAT CASE. 

THE CONCLUSION DOES NOT FOLLOW BECAUSE THE PREMISE IS WRONG.  THE
ARGUMENT OVERLOOKS THE CRUCIAL INQUIRY, NAMELY, THE REASON FOR WHICH
CONGRESS CONSIDERED THE PROPOSED SEC. 12 "FAR TOO DRASTIC."  IF THIS
REASON HAD BEEN AN OBJECTION TO APPLYING THE COMMODITIES CLAUSE TO THE
WHOLLY OWNED SUBSIDIARY RELATIONSHIPS PRESENT IN THIS AND THE ELGIN
CASES, THE ARGUMENT MIGHT HAVE SOME PERTINENCE.  BUT THAT WAS NOT THE
REASON.  ON THE CONTRARY, THE TWO SENATORS WHO WERE MOST ACTIVE IN
SPONSORING THE BILL AND IN THE CONDUCT OF THE HEARINGS ON IT FELT THAT
NO LEGISLATION WOULD BE NECESSARY IF NO MORE WERE INTENDED THAN A
REVERSAL OF THE ELGIN CASE.  FN6  THAT WAS ONLY ONE OF SEVERAL BROAD
PURPOSES OF THE BILL, OTHERS BEING MUCH MORE SWEEPING.  THE NEW
COMMODITIES CLAUSE, INSTEAD OF APPLYING ONLY TO RAILROADS, WOULD HAVE
APPLIED TO ALL TYPES OF CARRIERS EXCEPT AIR CARRIERS.  IT IS PERFECTLY
CLEAR FROM A READING OF THE HEARINGS THAT THIS PROPOSED APPLICATION TO
CARRIERS OF ALL TYPES WAS WHAT WAS CONSIDERED "FAR TOO DRASTIC" A
CHANGE TO BE INCLUDED IN THE TRANSPORTATION ACT OF 1940. 

THE CRUCIAL IMPORTANCE OF THIS EXTENSION IS ABUNDANTLY SHOWN FROM THE
VIGOROUS OBJECTIONS ON BEHALF OF PARTIES THAT WOULD HAVE BEEN AFFECTED
BY EXTENDING THE COMMODITIES CLAUSE TO WATER CARRIERS,  FN7  TO PIPE
LINES,  FN8  AND TO MOTOR CARRIERS.  FN9  IT WAS ARGUED REPEATEDLY THAT
IT WAS PROPER FOR SHIPPERS TO CONTROL INTERESTS IN THESE CARRIERS FOR
REASONS NOT APPLICABLE TO CARRIERS BY RAIL.  THESE ARGUMENTS CANNOT BE
READ WITHOUT CONCLUDING THAT THE CHANGE, WHETHER DESIRABLE OR NOT,
WOULD HAVE BEEN DRASTIC INDEED AND WOULD HAVE GONE FAR BEYOND THE
INTENDED COVERAGE OF THE TRANSPORTATION ACT OF 1940.  FN10  RATHER THAN
JEOPARDIZE THE ENTIRE LEGISLATIVE PROGRAM COMPREHENDED BY THE ACT,
FN11  THE COMMITTEE NATURALLY DECIDED THAT SOUND STRATEGY REQUIRED
SEPARATE CONSIDERATION OF THIS NARROWER, BUT STILL BROAD AND HIGHLY
CONTROVERSIAL PROBLEM. 

STATEMENTS OF THE COMMITTEE CHAIRMAN SHOW THAT THIS WAS THE REAL
BASIS FOR THE CONCLUSION THAT THE AMENDMENT WOULD HAVE BEEN "FAR TOO
DRASTIC."  FN12  INDEED THEY SHOW, TOGETHER WITH OTHER STATEMENTS
BEFORE THE COMMITTEE, THAT THE ELGIN DECISION WAS REGARDED AS
UNFORTUNATE AND LIKELY TO BE OVERRULED WHEN ANOTHER CASE SHOULD ARISE. 
FN13  EVEN THE OPPOSITION BY THE SHORT-LINE RAILROADS WAS BASED NOT ON
THE ARGUMENT THAT AN OVERRULING OF THE ELGIN CASE WOULD HAVE BEEN TOO
DRASTIC, BUT RATHER ON THE FACT THAT THE AMENDED SEC. 12, IN
CONJUNCTION WITH OTHER PROPOSED LEGISLATION, WOULD HAVE PROHIBITED THE
TRANSPORTATION OF COMMODITIES FOR ANYONE WHO OWNED, EVEN AS AN
INVESTMENT, AS MUCH AS TEN PER CENT OF THE STOCK OF THE RAILROAD N14. 
AND OTHER GROUPS ARGUED THAT THE AMENDMENT WAS TOO DRASTIC BECAUSE IT
WAS NOT LIMITED TO COMMON CARRIERS.  FN15  IN SUM, THE PROPOSED
AMENDMENT WAS INDEED DRASTIC, BUT NOT BECAUSE IT WOULD HAVE
ACCOMPLISHED WHAT THE COMMITTEE MEMBERS ASSUMED THIS COURT WOULD AND
SHOULD DO WITHOUT LEGISLATIVE AID.  FN16  IT IS THEREFORE MOST
UNREASONABLE TO CONCLUDE THAT THE CONSIDERATIONS WHICH PROMPTED THE
SENATE COMMITTEE TO REJECT A PROPOSED EXTENSION OF THE COMMODITIES
CLAUSE TO ALL TYPES OF CARRIER COMPEL THIS COURT TO DENY A REQUEST TO
OVERRULE AN INTERPRETATION OF THE IMPACT OF THE CLAUSE ON RAILROADS
WHICH THE MOST ACTIVE SPONSORS REGARDED AS ERRONEOUS. 

THE HOST OF REASONS WHICH MAY HAVE INDUCED THE VARIOUS MEMBERS OF THE
COMMITTEE TO FOREGO THE EXTREMELY CONTROVERSIAL AND DRASTIC EXTENSIONS
FORBIDS ANY INFERENCE THAT THE COMMITTEE ACTION WAS THE EQUIVALENT OF
APPROVAL OF THE ELGIN CASE BY THE ENTIRE CONGRESS.  IN FACT, THE
DIFFICULTY OF INTERPRETING THE VIEWS OF EVEN ONE LEGISLATOR WITHOUT
TAKING ACCOUNT OF ALL HE HAS HAD TO SAY, AS EXEMPLIFIED BY THE
DISCUSSION IN NOTE 6, SHOULD SERVE AS A WARNING THAT THE WILL OF
CONGRESS SELDOM IS TO BE DETERMINED FROM ITS WHOLLY NEGATIVE ACTIONS
SUBSEQUENT TO THE ENACTMENT OF THE STATUTE CONSTRUED.  IN THIS CASE THE
REJECTION OF THE PROPOSED AMENDMENT IS NOT MORE, INDEED I THINK IT IS
LESS, INDICATIVE OF CONGRESSIONAL ACQUIESCENCE THAN COMPLETE INACTIVITY
WOULD HAVE BEEN.  EVEN IF THERE MAY BE CASES WHERE THE "SILENCE OF
CONGRESS" MAY HAVE SOME WEIGHT, THAT AMBIGUOUS DOCTRINE DOES NOT
REQUIRE OR SUPPORT THE RESULT WHICH THE COURT REACHES TODAY.  GIROUARD
V. UNITED STATES, 328 U.S. 61; CF. CLEVELAND V. UNITED STATES, 329 U.S.
14, CONCURRING OPINION AT 21. 

NOR IS THAT RESULT JUSTIFIED BY THE "EQUITABLE" CONSIDERATIONS WHICH
THE COURT'S OPINION SOMEWHAT OBLIQUELY ADVANCES.  IT IS SUGGESTED THAT
A REFUSAL TO FOLLOW THE ELGIN PRECEDENT WOULD BE TO APPLY A DIFFERENT
AND MORE DRASTIC RULE TO BETHLEHEM THAN APPLIES TO ITS COMPETITOR, THE
UNITED STATES STEEL CORPORATION.  BUT, ASIDE FROM THE SPECIOUS
CHARACTER OF AN ARGUMENT THAT PERMITS X TO VIOLATE THE LAW ON THE
GROUND THAT Y ALSO VIOLATES IT, THERE IS NO EXPLANATION OFFERED FOR THE
ASSUMPTION THAT THE OVERRULING OF THE ELGIN CASE WOULD HAVE NO EFFECT
ON UNITED STATES STEEL.  THE POLICY OF RES JUDICATA WOULD NOT APPLY,
CF. COMMISSIONER V. SUNNEN, 333 U.S. 591, AND UNITED STATES STEEL,
INSTEAD OF BEING PREJUDICED BY THE COURSE OF DECISION, ACTUALLY HAS
BEEN BENEFITED BY MORE THAN A DECADE OF OWNERSHIP OF THE ELGIN ROAD,
CONTRARY TO THE STATUTE'S PLAIN TERMS AND POLICY. 

THE COURT ALSO FEELS THAT THE RELIEF REQUESTED IS TOO DRASTIC BECAUSE
BETHLEHEM WOULD BE COMPELLED TO SELL ITS SHORT-LINE RAILROADS, THE
GOVERNMENT HAS NOT SHOWN THAT INDEPENDENT OWNERSHIP OF THESE RAILROADS
IS LIKELY, NOR HAS IT SHOWN THAT EVILS EXIST WHICH WOULD BE REMEDIED BY
THIS RELIEF.  THESE ARE CONSIDERATIONS WHICH UNDOUBTEDLY INFLUENCED THE
MAJORITY IN THE ELGIN CASE, SOMEWHAT DIFFERENTLY IT WOULD SEEM FROM THE
MAJORITY IN THIS ONE, BUT WHICH THE DISSENTING JUSTICES FELT HAD BEEN
FORECLOSED BY THE LEGISLATIVE DETERMINATION OF POLICY.  RELIANCE ON
SUCH ARGUMENTS TODAY SEEMS INCONSISTENT WITH THE STATEMENT "THAT IF THE
ELGIN CASE WERE BEFORE US AS A CASE OF FIRST IMPRESSION, ITS DOCTRINE
MIGHT NOT NOW BE APPROVED."  MOREOVER, IT DOES NOT FOLLOW THAT THIS
COURT IN THE EXERCISE OF ITS EQUITY JURISDICTION COULD NOT ADAPT THE
RELIEF AFFORDED SO AS TO GIVE TIME AND OPPORTUNITY FOR MAKING THE
ADJUSTMENTS NECESSARY TO SECURE CONFORMITY WITH THE STATUTE IN AN
ORDERLY AND INOPPRESSIVE MANNER.  INDEED IT WOULD BE THE COURT'S DUTY
TO DO THIS. 

THE ARGUMENTS ON THIS LEVEL ARE MOST EFFECTIVELY ANSWERED BY THE
DISSENTING OPINION OF MR. JUSTICE STONE, WHO WAS JOINED BY MR. JUSTICE
BRANDEIS AND MR. JUSTICE CARDOZO, IN THE ELGIN CASE:  "THE LANGUAGE OF
THE COMMODITIES CLAUSE, READ IN THE LIGHT OF ITS LEGISLATIVE HISTORY,
CAN LEAVE NO DOUBT THAT ITS PURPOSE WAS TO WITHHOLD FROM EVERY
INTERSTATE RAIL CARRIER THE INDUCEMENT AND FACILITY FOR FAVORITISM AND
ABUSE OF ITS POWERS AS A COMMON CARRIER, WHICH EXPERIENCE HAD SHOWN ARE
LIKELY TO OCCUR WHEN A SINGLE BUSINESS INTEREST OCCUPIES THE
INCONSISTENT POSITION OF CARRIER AND SHIPPER.  SEE UNITED STATES V.
READING CO., 253 U.S. 26, 60, 61.  BEFORE THE ENACTMENT OF THE
COMMODITIES CLAUSE, CONGRESS, BY SWEEPING PROHIBITIONS, HAD MADE
UNLAWFUL EVERY FORM OF REBATE TO SHIPPERS AND EVERY FORM OF
DISCRIMINATION IN CARRIER RATES, SERVICE AND FACILITIES, INJURIOUS TO
SHIPPERS OR THE PUBLIC.  BY THE SHERMAN ACT IT HAD FORBIDDEN
COMBINATIONS IN RESTRAINT OF INTERSTATE COMMERCE.  BUT IT DID NOT STOP
THERE.  THE COMMODITIES CLAUSE WAS AIMED, NOT AT THE PRACTICES OF
RAILROADS ALREADY PENALIZED, BUT AT THE SUPPRESSION OF THE POWER AND
THE FAVORABLE OPPORTUNITY, INSEPARABLE FROM ACTUAL CONTROL OF BOTH
SHIPPER AND CARRIER BY THE SAME INTEREST, TO ENGAGE IN PRACTICES
ALREADY FORBIDDEN AND OTHERS INIMICAL TO THE PERFORMANCE OF CARRIER
DUTIES TO THE PUBLIC.  SEE DELAWARE, L. & W.R. CO. V. UNITED STATES,
231 U.S. 363, 370; UNITED STATES V. READING CO., SUPRA."  298 U.S. AT
504.  FN17 

IN MY OPINION THIS EXPRESSES THE INTENT OF THE LETTER AND THE POLICY
OF THE COMMODITIES CLAUSE, AND WE SHOULD NOW RETURN TO IT ON OUR OWN
RESPONSIBILITY.  CONGRESS SHOULD NOT AGAIN BE REQUIRED TO REENACT WHAT
IT HAS ONCE PROVIDED FOR, ONLY TO HAVE ITS MANDATE NULLIFIED IN PART BY
THIS COURT'S MISCONSTRUCTION. 

FN1  SEE COMMENT, THE COMMODITIES CLAUSE AND THE REGULATION OF
INDUSTRIAL RAILROADS, 46 YALE L.J. 299; 36 COL. L. REV. 1175. 

FN2  THE HOLDING COMPANY OWNS SUBSTANTIALLY ALL THE STOCK IN
APPROXIMATELY 57 SUBSIDIARIES, INCLUDING THE STEEL COMPANY AND THE
SOUTH BUFFALO RAILWAY COMPANY.  SOME OF THESE PRODUCE ORE IN CHILE,
VENEZUELA, CUBA AND IN THE UPPER GREAT LAKES REGIONS; OTHERS CONTROL
COAL MINES IN WEST VIRGINIA AND PENNSYLVANIA.  TWO SUBSIDIARIES OPERATE
OCEAN-GOING STEAMSHIP LINES, HAULING RAW MATERIALS TO STEEL PLANTS
CONTROLLED BY OTHER SUBSIDIARIES.  A GREAT LAKES SHIPPING COMPANY OWNED
BY THE HOLDING COMPANY CARRIES ORE FROM A MINING SUBSIDIARY TO A
PRODUCING SUBSIDIARY.  SEVEN SHORT-LINE RAILROADS INCLUDING SOUTH
BUFFALO, EACH WHOLLY OWNED BY THE HOLDING COMPANY AND HAVING COMMON
OFFICERS AND DIRECTORS, TRANSPORT PRODUCTS FOR THE VARIOUS BETHLEHEM
STEEL PLANTS. 

FN3  THE OPINION OF THE COURT SEEMS TO ASSUME THAT THE PURPOSE OF THE
COMMODITIES CLAUSE WAS TO PREVENT THE HOLDING COMPANY FROM FAVORING
"ITS SHIPPING SUBSIDIARY AT THE EXPENSE OF ITS CARRYING SUBSIDIARY, OR
VICE VERSA." 

FN4  MOREOVER, THE CONCLUSION IS FACTUALLY JUSTIFIED BY THE HISTORY
OF COMPLETE DOMINATION PRIOR TO 1940 PLUS THE FACT THAT FORMER
EMPLOYEES OF THE STEEL COMPANY CONTINUE TO BE THE PRINCIPAL OFFICERS OF
SOUTH BUFFALO AS WELL AS THE OTHER BETHLEHEM SHORT-LINE RAILROADS. 
"HISTORICAL TIES AND ASSOCIATIONS, COMBINED WITH STRATEGIC HOLDINGS OF
STOCK, CAN ON OCCASION SERVE AS A POTENT SUBSTITUTE FOR THE MORE
OBVIOUS MODES OF CONTROL."  NORTH AMERICAN CO. V. S.E.C., 327 U.S. 686,
693.    FN5  SEN. REP. NO. 433, 76TH CONG., 1ST SESS. 15; HEARINGS
BEFORE SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 2009, 76TH CONG.,
1ST SESS. 427, 590, 772. 

FN6  SENATOR REED EXPRESSLY SO STATED:  "JUDGE, YOU REMEMBER THAT
JUSTICE STONE, JUSTICE BRANDEIS, AND JUSTICE CARDOZO DISSENTED FROM
THAT MAJORITY OPINION OF THE SUPREME COURT IN THE E.J. & E. CASE....  I
AM INCLINED TO THINK THAT THE SUPREME, AS PRESENTLY CONSTITUTED, WOULD
HOLD WITH WHAT WAS THE MINORITY VIEW."  HEARINGS BEFORE SENATE
COMMITTEE ON S. 2009, 76TH CONG., 1ST SESS. 68.  HE LATER SAID THAT HE
THOUGHT THE ELGIN DECISION "WAS A STRANGE CONSTRUCTION OF THE LAW ON
THE PART OF THE SUPREME COURT OF THE UNITED STATES."  ID. AT 309. 

THE VIEWS OF SENATOR WHEELER SEEM CLEARLY TO THE SAME EFFECT.  WHEN
IT WAS FIRST SUGGESTED THAT THE PROPOSED COMMODITIES CLAUSE WOULD
OVERRULE THE ELGIN CASE, HE STATED (APPARENTLY BECAUSE HE WAS
INTERESTED PRIMARILY IN EXTENDING THE CLAUSE TO APPLY TO OTHER TYPES OF
CARRIERS):  "I DID NOT INTEND SUCH A RESULT."  WHEN THE EFFECT OF THE
CLAUSE WAS POINTED OUT TO HIM, HE EXPRESSED DOUBT WHETHER THAT CASE
SHOULD BE OVERRULED, NOT BECAUSE HE APPROVED IT, BUT AS HE EXPLAINED
BECAUSE "I AM NOT FAMILIAR WITH THE E.J. & E. CASE."  ID. 67-68. 

THREE DAYS LATER, WHEN THE POINT WAS AGAIN UNDER DISCUSSION, SENATOR
WHEELER, AT THIS TIME APPARENTLY REFRESHED IN RECOLLECTION OF THE ELGIN
CASE, FRANKLY STATED THAT ONE OF THE PURPOSES OF THE REVISED CLAUSE WAS
TO MEET THE SUPREME COURT DECISION IN IT.  THE WITNESS THEN EXPRESSED
THE VIEW THAT THE REVISED CLAUSE WENT CONSIDERABLY BEYOND THE DECISION
BECAUSE IT APPLIED TO OTHER TYPES OF CARRIERS, AND TO SITUATIONS WHERE
THE SHIPPER OWNED ONLY TEN PER CENT OF THE CARRIER'S STOCK.  THE
WITNESS SUGGESTED THAT, IF THE INTENT WAS MERELY TO REVERSE THE ELGIN
CASE, IT WOULD BE BETTER TO LEAVE THE CLAUSE IN ITS PRESENT FORM,
BECAUSE "I DO NOT BELIEVE THE DECISION IN THE E.J. & E. CASE IS GOING
TO PROVE TO BE ONE OF THE LAWS OF THE MEDES AND THE PERSIANS."  ID.
385. 

AFTER MORE DISCUSSION OF THE EFFECT OF THE AMENDED VERSION ON WATER
CARRIERS AND PIPE LINES, SENATOR WHEELER REMARKED:  "THERE ARE
DIFFICULTIES ON THAT QUESTION, IN MY MIND.  SUPPOSE WE REENACTED THE
LAW AS IT IS.  THE QUESTION IS WHETHER THE COURTS MIGHT SAY, IN VIEW OF
THE SUPREME COURT'S DECISION, 'IN REENACTING THE LAW, YOU APPROVED THE
DECISION OF THE SUPREME COURT.'"  ID. 386. 

THE SENATOR THUS WAS FACED WITH A DILEMMA.  AT THIS POINT HE WAS
APPARENTLY PERSUADED THAT THE EXTENSION OF THE COMMODITIES CLAUSE TO
ALL CARRIERS WAS A MORE DRASTIC CHANGE THAN HE HAD ORIGINALLY REALIZED,
BUT HESITATED TO REENACT THE OLD VERSION LEST THE REENACTMENT BE
CONSTRUED AS LEGISLATIVE APPROVAL OF THE ELGIN CASE.  HIS FEAR HAS NOW
BEEN JUSTIFIED BY TODAY'S DECISION.  IT WAS NOT UNTIL THE FOLLOWING
WEEK THAT HE REACHED THE CONCLUSION THAT THE DRASTIC NATURE OF THE
PROPOSED CHANGE OUTWEIGHED THE RISK THAT REENACTMENT WOULD BE CONSTRUED
AS APPROVAL OF THAT CASE.  ID. 427; AND SEE STATEMENTS QUOTED IN NOTE
12 INFRA.  SUCH A CHOICE HARDLY CAN BE CONSTRUED INTO "APPROVAL" OF THE
DECISION. 

FN7  ID. 236, 284-286, 308-310, 385-387, 427-432, 492, 623, 632-633,
692, 753-754, 926-928. 

FN8  ID. 386, 589-597, 606-610, 611-612, 654-660, 736-742. 

FN9  ID. 127, 432-433. 

FN10  FOR EXAMPLE, THE PETROLEUM INDUSTRY STRENUOUSLY OPPOSED THE
PROVISION BECAUSE IT WOULD HAVE EFFECTED THE DIVORCEMENT OF PIPE-LINE
COMPANIES FROM PRODUCERS.  SEE NOTE 8 SUPRA; CF. ID. AT 935. 
OPPOSITION BY FARM LOBBIES WAS DIRECTED PARTICULARLY AT THE NEW
COMMODITIES CLAUSE: "SECTION 12 APPEARS TO ENDANGER THE ACTIVITIES OF
MORE THAN 100,000 FARMERS OF OUR AREA WHO HAVE COOPERATIVELY ASSOCIATED
THEMSELVES TOGETHER AND WHO, BECAUSE OF EXORBITANT RAIL RATES, ARE
TRANSPORTING INCREASING TONNAGE OF GRAIN, LIVESTOCK, AND PETROLEUM
PRODUCTS BOTH THROUGH COOPERATIVE TRUCKING ASSOCIATIONS AND BY TRUCKS
OWNED BY LOCAL OR REGIONAL COOPERATIVES."  ID. 432-433.  SEE ALSO ID.
311.  THE MOST VIGOROUS OPPOSITION, HOWEVER, CAME FROM PARTIES WHO
WOULD BE ADVERSELY AFFECTED BY THE APPLICABILITY OF THE CLAUSE TO WATER
CARRIERS.  SEE NOTE 7 SUPRA.  THEY POINTED OUT, AS AN INSTANCE OF THE
FAR-REACHING EFFECT OF THE AMENDMENT, THAT 65 PER CENT OF THE PRIVATELY
OWNED AMERICAN MERCHANT MARINE WOULD BE AFFECTED BY THE CHANGE. 

FN11  SEE HEARINGS 772; CF. NOTE 10 SUPRA. 

FN12  SENATOR WHEELER EXPLAINED THE BASIS FOR THE DECISION TO ABANDON
THE PROPOSED AMENDMENT MORE THAN ONCE.  TO SHORTEN TESTIMONY BY
WITNESSES INTERESTED IN THE EFFECT OF THE CLAUSE ON PIPE LINES AND
WATER CARRIERS HE STATED:  "YOU MIGHT AS WELL QUIT WASTING YOUR TIME,
BECAUSE I MADE AN ANNOUNCEMENT YESTERDAY WITH REFERENCE TO THAT, AND I
HOPE YOU PEOPLE WILL NOT COME HERE WITH THE IDEA OF TAKING UP A LOT OF
TIME ON THAT.  I HAVE SAID THAT PIPE LINES ARE A SUBJECT THAT OUGHT TO
BE GIVEN INDEPENDENT CONSIDERATION, AND WE CANNOT TAKE IT UP AND GIVE
IT THE NECESSARY TIME AND STUDY IN THIS BILL.  THAT MAY BE MODIFIED OR
ELIMINATED, SO FAR AS PIPE LINES AND WATER CARRIERS ARE CONCERNED." 
ID. 590.  LATER HE SAID: "I HAVE FELT, FRANKLY, THAT IN THIS PARTICULAR
LEGISLATION, WHICH DOES DIVORCE, SHIPS FROM INDUSTRY, THAT IT WAS SUCH
A BROAD SUBJECT, AND ONE WHICH REQUIRED SO MUCH INDEPENDENT STUDY, THAT
IT OUGHT TO BE HANDLED BY SEPARATE LEGISLATION.  NO ONE IN THE
GOVERNMENT SERVICE SEEMS TO HAVE MADE A STUDY OF THE QUESTION.  I FELT
THAT IT OUGHT TO BE ELIMINATED FROM THE PROVISIONS OF THIS BILL AT THIS
TIME, AND BE INTRODUCED AS SEPARATE, INDEPENDENT LEGISLATION, AS HAS
BEEN DONE IN THE PAST."  ID. 772. 

FN13  SEE NOTE 6. 

FN14  HEARINGS 541; AND SEE ID. 285, 385-386. 

FN15  ID. 421, 435, 841. 

FN16  SEE NOTE 6. 

FN17  SEE ALSO NOTE 4. 
..END :

















UNITED STATES V. SCOPHONY CORP., 333 U.S. 795 


NO. 41.  ARGUED JANUARY 12-13, 1948.  - DECIDED APRIL 26, 1948.  - 69
F.SUPP.  666, REVERSED. 


A BRITISH CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS IN LONDON
ENGAGED IN THE SOUTHERN DISTRICT OF NEW YORK IN VARIOUS BUT CONTINUING
EFFORTS TO CONSERVE AND EXPLOIT ITS TELEVISION INVENTIONS AND PATENTS. 
THIS WAS DONE THROUGH A SERIES OF COMPLEX CONTRACTUAL ARRANGEMENTS MADE
WITH CERTAIN AMERICAN CORPORATIONS AND INVOLVED THE BRITISH COMPANY'S
CONSTANT INTERVENTION AND SUPERVISION.  THE COMPANY WAS REPRESENTED IN
THE NEW YORK DISTRICT BY TWO OF ITS DIRECTORS, ONE OF WHOM HELD A
COMPREHENSIVE POWER OF ATTORNEY TO PROTECT ITS INTERESTS IN THE UNITED
STATES.  HELD: THE COMPANY WAS "TRANSACTING BUSINESS" AND WAS "FOUND"
IN THE SOUTHERN DISTRICT OF NEW YORK, WITHIN THE MEANING OF SEC. 12 OF
THE CLAYTON ACT, SO THAT IT COULD BE SUED AND SERVED THERE IN A CIVIL
PROCEEDING CHARGING VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT. 
PP. 796-818. 

(A)  THE VENUE PROVISION OF SEC. 12 OF THE CLAYTON ACT PERMITTING
SUIT IN ANY DISTRICT WHEREIN A CORPORATION "TRANSACTS BUSINESS" IS MET
BY THE CARRYING ON OF BUSINESS "OF ANY SUBSTANTIAL CHARACTER." 
PRACTICAL, NONTECHNICAL BUSINESS OR COMMERCIAL STANDARDS ARE TO BE
APPLIED IN DETERMINING WHETHER THE REQUIREMENT IS SATISFIED.  P. 810. 

(B)  SECTION 12 OF THE CLAYTON ACT IS NOT TO BE CONSTRUED IN A MANNER
TO BRING BACK THE OBSTACLES TO ENFORCEMENT OF ANTITRUST POLICIES AND
REMEDIES WHICH IT WAS ENACTED TO ELIMINATE.  IN THIS CASE, THE
DETERMINATION WHETHER THE BRITISH CORPORATION WAS "FOUND" WITHIN THE
SOUTHERN DISTRICT OF NEW YORK SO THAT IT COULD BE SERVED THERE IS NOT
TO BE MADE BY ATOMIZING THE ENTERPRISE INTO MINUTE PARTS OR EVENTS, IN
DISREGARD OF THE UNITY AND CONTINUITY OF THE WHOLE COURSE OF CONDUCT. 
P. 817. 

UNITED STATES V. SCOPHONY CORPORATION OF AMERICA ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

IN A CIVIL PROCEEDING BROUGHT IN THE SOUTHERN DISTRICT OF NEW YORK
UNDER SEC. 12 OF THE CLAYTON ACT AND CHARGING VIOLATIONS OF SECS. 1 AND
2 OF THE SHERMAN ACT, THE DISTRICT COURT QUASHED SERVICE OF PROCESS AND
DISMISSED THE COMPLAINT AS TO A BRITISH CORPORATION HAVING ITS
PRINCIPAL PLACE OF BUSINESS IN LONDON.  69 F.SUPP.  666.  ON DIRECT
APPEAL TO THIS COURT, REVERSED AND REMANDED, P. 818. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE APPELLEE SCOPHONY, LIMITED IS A BRITISH CORPORATION WHICH HAS ITS
OFFICES AND PRINCIPAL PLACE OF BUSINESS IN LONDON, ENGLAND.  THE
QUESTION IS WHETHER THAT COMPANY "TRANSACTED BUSINESS" AND WAS "FOUND"
WITHIN THE SOUTHERN DISTRICT OF NEW YORK UNDER SEC. 12 OF THE CLAYTON
ACT,  FN1 SO THAT IT COULD BE SUED AND SERVED THERE IN A CIVIL
PROCEEDING CHARGING VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN ACT.  26
STAT. 209, 50 STAT. 693, 15 U.S.C. SECS. 1, 2.  THE VIOLATIONS STATED
WERE THAT SCOPHONY AND THE OTHER DEFENDANTS  FN2  HAD MONOPOLIZED,
ATTEMPTED TO MONOPOLIZE, AND CONSPIRED TO RESTRAIN AND MONOPOLIZE
INTERSTATE AND FOREIGN COMMERCE IN PRODUCTS, PATENTS AND INVENTIONS
USEFUL IN TELEVISION AND ALLIED INDUSTRIES.  THE CAUSE IS HERE ON
DIRECT APPEAL  FN3 FROM AN ORDER OF THE DISTRICT COURT GRANTING
SCOPHONY'S MOTION TO QUASH THE SERVICE OF PROCESS AND DISMISS THE
COMPLAINT AS TO IT.  69 F.SUPP.  666. 

SCOPHONY MANUFACTURES AND SELLS TELEVISION APPARATUS AND IS THE OWNER
AND LICENSOR OF INVENTIONS AND PATENTS COVERING TELEVISION RECEPTION
AND TRANSMISSION.  FN4  WITH THE OUTBREAK OF THE EUROPEAN WAR IN 1939,
THE BRITISH BROADCASTING CORPORATION STOPPED TELEVISION BROADCASTING. 
CONSEQUENTLY IT BECAME IMPOSSIBLE FOR SCOPHONY TO CONTINUE IN THE
COMMERCIAL DEVELOPMENT, MANUFACTURE AND SALE OF TELEVISION EQUIPMENT IN
ENGLAND.  IT THEREFORE SENT PERSONNEL TO THE UNITED STATES, OPENED AN
OFFICE IN NEW YORK CITY, AND BEGAN DEMONSTRATIONS OF ITS PRODUCT AND
OTHER ACTIVITIES PRELIMINARY TO ESTABLISHING A MANUFACTURING AND
SELLING BUSINESS IN THIS COUNTRY. 

LATE IN 1941 SCOPHONY FOUND ITSELF IN FINANCIAL DISTRESS, IN PART
BECAUSE OF RESTRICTIONS IMPOSED BY THE BRITISH GOVERNMENT ON THE EXPORT
OF CURRENCY.  IT BECAME IMPERATIVE THAT NEW CAPITAL FROM AMERICAN
SOURCES BE FOUND FOR THE ENTERPRISE.  ACCORDINGLY, ARTHUR LEVEY, A
DIRECTOR OF SCOPHONY AND ONE OF ITS FOUNDERS, UNDERTOOK NEGOTIATIONS IN
NEW YORK WITH AMERICAN MOTION PICTURE AND TELEVISION INTERESTS,
INCLUDING PARAMOUNT AND GENERAL PRECISION.  THEY CULMINATED IN THE
EXECUTION OF THREE INTERLACING CONTRACTS, THE SO-CALLED MASTER
AGREEMENT OF JULY 31, 1942, AND TWO SUPPLEMENTAL AGREEMENTS OF AUGUST
11, 1942.  COPIES OF THE LATTER HAD BEEN ATTACHED TO THE MASTER
AGREEMENT, WHICH PROVIDED FOR THEIR LATER EXECUTION, AND THEY WHEN
EXECUTED IN EFFECT CARRIED OUT ITS TERMS.  THE ALLEGED VIOLATIONS OF
THE SHERMAN ACT CENTER AROUND THESE AGREEMENTS. 

THE MASTER AGREEMENT WAS EXECUTED BY SCOPHONY, WILLIAM GEORGE ELCOCK,
AS MORTGAGEE OF ALL OF SCOPHONY'S ASSETS, GENERAL PRECISION, AND
PRODUCTIONS, THE LATTER A WHOLLY OWNED SUBSIDIARY OF PARAMOUNT.  IT
PROVIDED FOR THE FORMATION OF A NEW DELAWARE CORPORATION, AMERICAN
SCOPHONY, WITH AN AUTHORIZED CAPITAL STOCK OF 1,000 CLASS "A" SHARES
AND A LIKE NUMBER OF CLASS "B" SHARES.  SCOPHONY AND INDIVIDUALS
INTERESTED IN IT  FN5  WERE TO BE GIVEN THE CLASS "A" SHARES.  UNDER
THE AGREEMENT, OWNERSHIP OF THOSE SHARES CONFERRED THE RIGHT TO ELECT
THREE OF AMERICAN SCOPHONY'S FIVE DIRECTORS AND ITS PRESIDENT, VICE
PRESIDENT AND TREASURER.  THE CLASS "B" SHARES WERE ALLOTTED TO GENERAL
PRECISION AND PRODUCTIONS.  BY VIRTUE OF SUCH OWNERSHIP THOSE TWO
CORPORATIONS WERE ENTITLED TO NAME THE REMAINING TWO DIRECTORS AND THE
SECRETARY AND ASSISTANT SECRETARY OF AMERICAN SCOPHONY.  LEVEY WAS
NAMED IN THE AGREEMENT AS THE PRESIDENT AND A DIRECTOR OF THE NEW
CORPORATION. 

THE MASTER AGREEMENT SET FORTH THE GENERAL DESIRE OF THE PARTIES TO
PROMOTE THE UTILIZATION OF THE SCOPHONY INVENTIONS "PARTICULARLY IN THE
UNITED STATES OF AMERICA AND GENERALLY IN THE WESTERN HEMISPHERE."  IT
THEN STATED THAT AMERICAN SCOPHONY HAD BEEN ORGANIZED "AS A MEANS
THEREFOR."  SCOPHONY AGREED TO TRANSFER ALL ITS TELEVISION EQUIPMENT
THEN IN THE UNITED STATES TO AMERICAN SCOPHONY AND TO ENTER INTO THE
FIRST SUPPLEMENTAL AGREEMENT.  SCOPHONY, WITH THE OTHER PARTIES, ALSO
UNDERTOOK TO CAUSE AMERICAN SCOPHONY TO ENTER INTO BOTH SUPPLEMENTAL
AGREEMENTS.  FOR THE "B" STOCK IN AMERICAN SCOPHONY AND OTHER RIGHTS
ACQUIRED, GENERAL PRECISION AND PRODUCTIONS AGREED TO ENTER INTO THE
SECOND SUPPLEMENTAL AGREEMENT AND TO PAY SPECIFIED SUMS IN CASH TO
SCOPHONY OR FOR ITS BENEFIT IN LIQUIDATION OF LISTED OBLIGATIONS. 

PURSUANT TO THE MASTER AGREEMENT'S TERMS, THE FIRST SUPPLEMENTAL
AGREEMENT WAS EXECUTED BY SCOPHONY, ELCOCK, AS MORTGAGEE OF ITS ASSETS,
AND AMERICAN SCOPHONY; THE OTHER, BY AMERICAN SCOPHONY, GENERAL
PRECISION, AND PRODUCTIONS.  FOR PRESENT PURPOSES IT IS NECESSARY TO
SET FORTH ONLY THE GENERAL EFFECT OF THE AGREEMENTS TAKEN TOGETHER. 
SCOPHONY TRANSFERRED TO AMERICAN SCOPHONY NOT ONLY ALL OF ITS EQUIPMENT
IN THE UNITED STATES, BUT ALSO ALL PATENTS AND OTHER INTERESTS IN THE
SCOPHONY INVENTIONS WITHIN THE WESTERN HEMISPHERE.  GENERAL PRECISION
AND PRODUCTIONS WERE GRANTED EXCLUSIVE LICENSES UNDER AMERICAN
SCOPHONY'S PATENTS.  THEY AGREED TO PAY ROYALTIES ON THE PRODUCTS
PRODUCED UNDER THE LICENSES AND AMERICAN SCOPHONY UNDERTOOK TO TRANSMIT
FIFTY PER CENT OF SUCH ROYALTIES TO SCOPHONY.  AMERICAN SCOPHONY GAVE
SCOPHONY AN EXCLUSIVE SUBLICENSE FOR THE EASTERN HEMISPHERE ON A
ROYALTY BASIS UNDER ALL PATENTS LICENSED TO AMERICAN SCOPHONY BY
GENERAL PRECISION AND PRODUCTIONS.  PROVISION WAS ALSO MADE FOR THE
INTERCHANGE OF TECHNICAL DATA AND INFORMATION RESPECTING THE SCOPHONY
INVENTIONS.  FINALLY, IT WAS AGREED THAT SCOPHONY WOULD NOT MARKET ANY
PRODUCT INVOLVING THE SCOPHONY INVENTIONS IN THE WESTERN HEMISPHERE AND
THAT GENERAL PRECISION AND PRODUCTIONS WOULD NOT EXPORT ANY SUCH
PRODUCT TO THE EASTERN HEMISPHERE.  FN6 

THIS RATHER COMPLEX PLAN SOON FELL OF ITS OWN WEIGHT.  STARTING IN
1943, AN IMPASSE DEVELOPED IN THE AFFAIRS OF AMERICAN SCOPHONY.  IT
STEMMED FROM THE FAILURE AND UNWILLINGNESS OF GENERAL PRECISION AND
PRODUCTIONS TO EXPLOIT THE SCOPHONY INVENTIONS THEMSELVES AND THEIR
REFUSAL TO MODIFY THE AGREEMENTS TO PERMIT THE LICENSING OF OTHER
AMERICAN FIRMS UNDER THE INVENTIONS.  SEVERAL MANUFACTURERS EXPRESSED
AN INTEREST IN OBTAINING LICENSES.  BUT IN EACH INSTANCE THE DIRECTORS
REPRESENTING THE AMERICAN INTERESTS HOLDING THE CLASS "B" SHARES WERE
UNWILLING TO APPROVE THE NECESSARY MODIFICATIONS IN THE EXISTING
ARRANGEMENTS.  IN JULY, 1945, THE DIRECTORS REPRESENTING THE "B"
INTERESTS RESIGNED.  THIS MADE IT IMPOSSIBLE FOR AMERICAN SCOPHONY TO
TRANSACT BUSINESS, SINCE CHARTER AND BY-LAW PROVISIONS ADOPTED PURSUANT
TO THE MASTER AND SUPPLEMENTAL AGREEMENTS REQUIRED THE PRESENCE OF AT
LEAST ONE CLASS "B" DIRECTOR FOR A QUORUM.  ADDING TO THE DIFFICULTIES
WERE AMERICAN SCOPHONY'S SHORTAGE OF FUNDS AND THE APPARENT RELUCTANCE
OF THE AMERICAN INTERESTS TO COOPERATE IN EFFORTS TO PLACE AMERICAN
SCOPHONY ON FIRMER FINANCIAL FOOTING.  AMERICAN SCOPHONY'S AFFAIRS WERE
FURTHER COMPLICATED BY THE INSTITUTION OF THE PRESENT ANTITRUST
PROCEEDING ON DECEMBER 18, 1945. 

LEVEY KEPT SCOPHONY ADVISED OF DEVELOPMENTS IN THE DISPUTE BETWEEN
THE "A" AND "B" FACTIONS AND OTHERWISE MADE PROGRESS REPORTS TO
SCOPHONY ON ITS INTERESTS IN THE UNITED STATES.  AS THE IMPASSE
HEIGHTENED, OTHER INDIVIDUALS WERE AUTHORIZED BY SCOPHONY TO ACT IN ITS
BEHALF IN THE UNITED STATES.  FN7  SERVICE OF PROCESS AS TO SCOPHONY
WAS MADE FIRST ON LEVEY IN NEW YORK CITY ON DECEMBER 20, 1945.  FN8 

ON APRIL 5, 1946, A SUMMONS AND A COPY OF THE COMPLAINT DIRECTED TO
SCOPHONY WERE ALSO SERVED ON ELCOCK IN NEW YORK CITY.  HE WAS A
DOMINANT FIGURE IN SCOPHONY.  HE ARRIVED IN THIS COUNTRY IN MARCH,
1946, WITH THE MISSION OF INVESTIGATING AND ENDING THE IMPASSE AND
DISPOSING OF SCOPHONY'S INTEREST IN AMERICAN SCOPHONY.  ELCOCK NOT ONLY
WAS MORTGAGEE OF SCOPHONY'S ASSETS BY VIRTUE OF HAVING MADE A LARGE
LOAN TO THE COMPANY.  HE WAS ALSO ITS FINANCIAL COMPTROLLER AND A
MEMBER OF ITS BOARD.  AT THE TIME OF SERVICE ON HIM, HE HELD A
COMPREHENSIVE POWER OF ATTORNEY, IRREVOCABLE UNTIL MARCH, 1947, GIVING
HIM COMPLETE POWER TO ACT WITH REGARD TO SCOPHONY'S INTERESTS IN THE
UNITED STATES, INCLUDING THOSE IN AMERICAN SCOPHONY.  FN9 

THE DISTRICT COURT, IN GRANTING THE MOTION TO QUASH SERVICE AND
DISMISS THE COMPLAINT AS TO SCOPHONY, HELD THAT IT WAS NOT "FOUND" IN
THE SOUTHERN DISTRICT OF NEW YORK WITHIN THE MEANING OF SEC. 12.  THE
COURT REJECTED THE CONTENTION THAT SCOPHONY WAS WITHIN THE JURISDICTION
BY REASON OF THE ACTIVITIES OF ITS AGENTS.  IT CONCLUDED THAT NONE OF
THOSE ACTIVITIES RELATED TO SCOPHONY'S ORDINARY BUSINESS OF
MANUFACTURING, SELLING AND LICENSING TELEVISION APPARATUS, BUT ALL WERE
CONFINED TO PROTECTING SCOPHONY'S INTEREST IN AMERICAN SCOPHONY.  IT
ALSO FOUND THAT THE CONDUCT OF AMERICAN SCOPHONY DID NOT SERVE TO BRING
SCOPHONY WITHIN THE JURISDICTION.  69 F.SUPP.  666. 

I. 

VENUE FOR ANTITRUST SUITS AGAINST CORPORATIONS; SECOND, TO DETERMINE
WHERE PROCESS IN SUCH SUITS MAY BE SERVED.  VENUE MAY BE HAD "NOT ONLY
IN THE JUDICIAL DISTRICT WHEREOF IT IS AN INHABITANT, BUT ALSO IN ANY
DISTRICT WHEREIN IT MAY BE FOUND OR TRANSACTS BUSINESS."  AND ALL
PROCESS MAY BE SERVED "IN THE DISTRICT OF WHICH IT IS AN INHABITANT, OR
WHEREVER IT MAY BE FOUND." 

A PLAIN AND LITERAL READING OF THE SECTION'S WORDS GIVES IT
DECEPTIVELY SIMPLE APPEARANCE.  THE SOURCE OF TROUBLE LIES IN THE USE
OF VERBS DESCRIPTIVE OF THE BEHAVIOR OF HUMAN BEINGS TO DESCRIBE THAT
OF ENTITIES CHARACTERIZED BY CHIEF JUSTICE MARSHALL AS "ARTIFICIAL  ...
, INVISIBLE, INTANGIBLE, AND EXISTING ONLY IN CONTEMPLATION OF LAW." 
DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518, 636.  FN10 

THE PROCESS OF TRANSLATING GROUP OR INSTITUTIONAL RELATIONS IN TERMS
OF INDIVIDUAL ONES, AND SO KEEPING THEM DISTINCT FROM THE NONGROUP
RELATIONS OF THE PEOPLE WHOSE GROUP RIGHTS ARE THUS INTEGRATED, IS
PERENNIAL, NOT ONLY BECAUSE THE LAW'S NORM IS SO MUCH THE INDIVIDUAL
MAN, BUT ALSO BECAUSE THE CONTINUING EVOLUTION OF INSTITUTIONS MORE AND
MORE COMPELS FITTING THEM INTO INDIVIDUALISTICALLY CONCEIVED LEGAL
PATTERNS.  PERHAPS IN NO OTHER FIELD HAVE THE VAGARIES OF THIS PROCESS
BEEN EXEMPLIFIED MORE OR MORE OFTEN THAN IN THE DETERMINATION OF
MATTERS OF JURISDICTION, VENUE AND LIABILITY TO SERVICE OF PROCESS IN
OUR FEDERAL SYSTEM.  FN11  IT HAS GONE ON FROM BANK V. DEVEAUX, 5
CRANCH 61, AND BAPTIST ASSOCIATION V. HART'S EXECUTORS, 4 WHEAT.  1, TO
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310, AND NOW THIS CASE. 
FN12 

THE TRANSLATION, OR RATHER THE NECESSITY FOR IT, PERMEATES EVERY
SIGNIFICANT WORD OF SEC. 12, NOT WHOLLY EXCLUDING "OR TRANSACTS
BUSINESS."  IF THE STATUTORY SLATE WERE CLEAN, ONE MIGHT READILY
CONCLUDE THAT THE WORDS "INHABITANT" AND "FOUND" WOULD HAVE THE SAME
MEANING FOR LOCATING BOTH VENUE AND THE PROPER PLACE FOR SERVING
PROCESS.  BUT EVEN SO, EACH OF THOSE TERMS AND INDEED THE TERM
"TRANSACTS BUSINESS" WOULD HAVE TO BE GIVEN SPECIFIC CONTENT ACTUALLY
DESCRIPTIVE OF CORPORATE EVENTS TAKING PLACE WITHIN SPECIFIED AREAS. 
BECAUSE ALL CORPORATE ACTION MUST BE VICARIOUS, THAT CONTENT COULD BE
DETERMINED ONLY BY AN ACT OF JUDGMENT WHICH SELECTS AND ATTRIBUTES TO
THE CORPORATION, FROM THE MASS OF ACTIVITY DONE OR PURPORTING TO BE
DONE ON ITS BEHALF, THOSE ACTS OF INDIVIDUALS WHICH ARE RELEVANT FOR
THE PARTICULAR STATUTORY PURPOSES AND POLICIES IN HAND. 

THE STATUTORY SLATE, HOWEVER, IS NEITHER ENTIRELY NEW NOR CLEAN. 
BOTH LEGISLATIVE AND JUDICIAL HANDS HAVE WRITTEN UPON IT.  THE WRITING
IS MEANDERING, UNCLEAR IN PART, AND PARTLY ERASED.  BUT IT CANNOT BE
DISREGARDED.  WHAT IS LEGIBLE MUST FURNISH GUIDANCE TO DECISION.  WE
DEAL HERE WITH A PROBLEM OF STATUTORY CONSTRUCTION, NOT ONE OF
CONSTITUTIONAL IMPORT.  FN13  NOR DO WE HAVE ANY QUESTION OF THE
EXERCISE OF CONGRESS' POWER TO ITS FARTHEST LIMIT.  THE ISSUE IS SIMPLY
HOW FAR CONGRESS MEANT TO GO, AND SPECIFICALLY WHETHER IT INTENDED TO
CREATE VENUE AND LIABILITY TO SERVICE OF PROCESS THROUGH THE OCCURRENCE
WITHIN A DISTRICT OF THE KINDS OF ACTS DONE HERE ON SCOPHONY'S BEHALF. 

SHERMAN ANTI-TRUST ACT.  EASTMAN CO. V. SOUTHERN PHOTO CO., 273 U.S.
359.  THE EARLIER STATUTE PROVIDED FOR SUIT IN THE DISTRICT IN WHICH
THE DEFENDANT "RESIDES OR IS FOUND."  26 STAT. 210.  THAT WORDING
CONTROLLED FOR BOTH VENUE AND FIXING THE PLACES FOR SERVICE OF
PROCESS. 

WE DO NOT STOP TO REVIEW THE DECISIONS CONSTRUING SEC. 7 AND SIMILAR
STATUTES, CF. SUTTLE V. REICH BROS., 333 U.S. 163; SEE INTERNATIONAL
SHOE CO. V. WASHINGTON, SUPRA, AT 317-319, EXCEPT TO REFER TO PEOPLE'S
TOBACCO CO. V. AMERICAN TOBACCO CO., 246 U.S. 79.  THERE THE FOREIGN
CORPORATION WAS SUED IN A DISTRICT IN WHICH IT DID NOT "RESIDE." 
BECAUSE THE COURT FOUND THAT THE COMPANY HAD WITHDRAWN FROM THE STATE
IN WHICH THE DISTRICT WAS LOCATED AND HAD REVOKED THE AUTHORITY OF ITS
PRINCIPAL AGENTS THERE, IT HELD THAT THE DEFENDANT WAS NOT "FOUND" IN
THE DISTRICT, ALTHOUGH CERTAIN CORPORATE ACTIVITIES CONTINUED.    THE
CONVENTIONAL RATIONALIZATION APPLIED EQUATED "FOUND" IN SEQUENCE TO
"PRESENCE," TO "DOING BUSINESS BY ITS AGENTS THERE," TO "OF A CHARACTER
WARRANTING INFERENCE OF SUBJECTION TO THE LOCAL JURISDICTION."  FN14
THE FACTS THAT THE COMPANY CONTINUED TO ADVERTISE ITS GOODS IN THE
STATE AND DISTRICT, TO MAKE INTERSTATE SALES TO JOBBERS THERE, TO SEND
IN DRUMMERS WHO SOLICITED RETAIL ORDERS TO BE TURNED OVER TO THE
JOBBERS, AND FINALLY TO OWN STOCK IN LOCAL SUBSIDIARIES, WERE HELD NOT
TO CONSTITUTE THE SORT OF "DOING BUSINESS" WARRANTING THE INFERENCE OF
SUBJECTION TO THE LOCAL JURISDICTION FOR THE STATUTE'S PURPOSES. 
INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S. 579, WAS NARROWLY
DISTINGUISHED.  246 U.S. AT 87. 

THE SUIT IN THE PEOPLE'S TOBACCO CASE WAS BEGUN IN 1912, BUT THE
DECISION WAS NOT RENDERED UNTIL 1918.  MEANWHILE, IN 1914, CONGRESS HAD
ENACTED THE CLAYTON ACT, INCLUDING SEC. 12.  THE FOLLOWING YEAR THE
EASTMAN CASE, SUPRA, WAS BEGUN IN THE NORTHERN DISTRICT OF GEORGIA. 
PROCESS ISSUED AND WAS SERVED UNDER SEC. 12 ON THE DEFENDANT, A NEW
YORK CORPORATION, AT ITS PRINCIPAL PLACE OF BUSINESS IN ROCHESTER.  IN
1927 THIS COURT SUSTAINED BOTH THE VENUE AND THE SERVICE, AS AGAINST
OBJECTIONS THAT SEC. 12 HAD NOT BROADENED SEC. 7 OF THE SHERMAN ACT,
BUT MERELY MADE EXPLICIT WHAT HAD BEEN DECIDED UNDER IT.  FN15 

THE ARGUMENT WAS CERTAINLY PLAUSIBLE, BUT FOR THE FACT THAT IT MADE
THE ADDITION OF "OR TRANSACTS BUSINESS" TO "INHABITANT" AND "FOUND" IN
SEC. 12 REDUNDANT AND MEANINGLESS.  THE COURT REFUSED TO ACCEPT THE
ARGUMENT, BECAUSE DOING SO WOULD HAVE DEFEATED THE PLAIN REMEDIAL
PURPOSE OF SEC. 12.  FN16  THAT SECTION WAS ENACTED, IT HELD, TO
ENLARGE THE JURISDICTION GIVEN BY SEC. 7 OF THE SHERMAN ACT OVER
CORPORATIONS BY ADDING THOSE WORDS, "SO AS TO ESTABLISH THE VENUE OF
SUCH A SUIT NOT ONLY, AS THERETOFORE, IN A DISTRICT IN WHICH THE
CORPORATION RESIDES OR IS 'FOUND,' BUT ALSO IN ANY DISTRICT IN WHICH IT
'TRANSACTS BUSINESS' - ALTHOUGH NEITHER RESIDING NOR 'FOUND' THEREIN -
IN WHICH CASE THE PROCESS MAY BE ISSUED TO AND SERVED IN A DISTRICT IN
WHICH THE CORPORATION EITHER RESIDES OR IS 'FOUND.'"  273 U.S. AT 372. 
FN17 

THIS CONSTRUCTION GAVE THE WORDS "TRANSACTS BUSINESS" A MUCH BROADER
MEANING FOR ESTABLISHING VENUE THAN THE CONCEPT OF "CARRYING ON
BUSINESS" DENOTED BY "FOUND" UNDER THE PREEXISTING STATUTE AND
DECISIONS.  THE SCOPE OF THE ADDITION WAS INDICATED BY THE STATEMENT
"THAT A CORPORATION IS ENGAGED IN TRANSACTING BUSINESS IN A DISTRICT
...  IF IN FACT, IN THE ORDINARY AND USUAL SENSE, IT 'TRANSACTS
BUSINESS' THEREIN OF ANY SUBSTANTIAL CHARACTER."  ID. AT 373. 

IN OTHER WORDS, FOR VENUE PURPOSES, THE COURT SLOUGHED OFF THE HIGHLY
TECHNICAL DISTINCTIONS THERETOFORE GLOSSED UPON "FOUND" FOR FILLING
THAT TERM WITH PARTICULARIZED MEANING, OR EMPTYING IT, UNDER THE
TRANSLATION OF "CARRYING ON BUSINESS."  IN THEIR STEAD IT SUBSTITUTED
THE PRACTICAL AND BROADER BUSINESS CONCEPTION OF ENGAGING IN ANY
SUBSTANTIAL BUSINESS OPERATIONS.  CF. FRENE V. LOUISVILLE CEMENT CO.,
77 U.S. APP. D.C. 129, 134 F.2D 511; INTERNATIONAL SHOE CO. V.
WASHINGTON, SUPRA.  REFINEMENTS SUCH AS PREVIOUSLY WERE MADE UNDER THE
"MERE SOLICITATION" AND "SOLICITATION PLUS" CRITERIA, CF. FRENE V.
LOUISVILLE CEMENT CO., SUPRA, AND LIKE THOSE DRAWN, E.G., BETWEEN THE
PEOPLE'S TOBACCO AND INTERNATIONAL HARVESTER CASES, SUPRA, WERE NO
LONGER DETERMINATIVE.  THE PRACTICAL, EVERYDAY BUSINESS OR COMMERCIAL
CONCEPT OF DOING OR CARRYING ON BUSINESS "OF ANY SUBSTANTIAL CHARACTER"
BECAME THE TEST OF VENUE. 

APPLYING IT, THE COURT STATED THAT "MANIFESTLY" THE EASTMAN COMPANY
WAS NOT "PRESENT" IN THE GEORGIA DISTRICT UNDER THE EARLIER TESTS OF
SEC. 7 OF THE SHERMAN ACT, EITHER FOR THE PURPOSE OF VENUE OR AS BEING
AMENABLE TO SERVICE OF PROCESS.  P. 371.  IT THUS ALIGNED THE CASE
UNDER THOSE TESTS WITH THE PEOPLE'S TOBACCO DECISION RATHER THAN THE
INTERNATIONAL HARVESTER ONE.  BUT, UNDER THE BROADER ROOM GIVEN BY SEC.
12, VENUE WAS HELD TO HAVE BEEN ESTABLISHED.  FN18 

THUS, BY SUBSTITUTING PRACTICAL, BUSINESS CONCEPTIONS FOR THE
PREVIOUS HAIR-SPLITTING LEGAL TECHNICALITIES ENCRUSTED UPON THE "FOUND"
"PRESENT"-"CARRYING-ON-BUSINESS" SEQUENCE, THE COURT YIELDED TO AND
MADE EFFECTIVE CONGRESS' REMEDIAL PURPOSE.  THEREBY IT RELIEVED PERSONS
INJURED THROUGH CORPORATE VIOLATIONS OF THE ANTITRUST LAWS FROM THE
"OFTEN INSUPERABLE OBSTACLE" OF RESORTING TO DISTANT FORUMS FOR REDRESS
OF WRONGS DONE IN THE PLACES OF THEIR BUSINESS OR RESIDENCE.  A FOREIGN
CORPORATION NO LONGER COULD COME TO A DISTRICT, PERPETRATE THERE THE
INJURIES OUTLAWED, AND THEN BY RETREATING OR EVEN WITHOUT RETREATING
FN19  TO ITS HEADQUARTERS DEFEAT OR DELAY THE RETRIBUTION DUE. 

WITH VENUE ESTABLISHED UNDER THE NEW AND BROADER APPROACH, THE
EASTMAN CASE PRESENTED NO PROBLEM REGARDING THE SERVICE OF PROCESS,
EXCEPT POSSIBLY FOR THE RULING THAT PROCESS MIGHT RUN TO ANOTHER
DISTRICT THAN THE ONE IN WHICH SUIT WAS BROUGHT.  273 U.S. AT 374.  FOR
BY WHATEVER TEST, WHETHER OF THE OLD SEC. 7 OR THE NEW SEC. 12, THE
SERVICE WAS GOOD.  AS WE HAVE NOTED, THE PROCESS HAD BEEN DIRECTED TO
AND SERVED IN THE DISTRICT WHERE THE EASTMAN COMPANY WAS AN
"INHABITANT."  FN20 THERE WAS THEREFORE NO NECESSITY FOR RULING UPON
THE MEANING OF "FOUND" AS RELATING TO ANY OTHER DISTRICT.  ANY SUCH
RULING NECESSARILY COULD BE NO MORE THAN DICTUM, SINCE NO SUCH ISSUE
WAS PRESENTED BY THE FACTS. 

NEVERTHELESS, FOR SERVICE OF PROCESS SEC. 12 HAD SPECIFIED "THE
DISTRICT OF WHICH IT IS AN INHABITANT, OR WHEREVER IT MAY BE FOUND"
WITHOUT ADDING "OR TRANSACTS BUSINESS," AS WAS DONE IN THE VENUE
CLAUSE.  ACCORDINGLY THE COURT TOOK ACCOUNT OF THIS DIFFERENCE AND WENT
ON TO INDICATE THAT FOR PURPOSES OF LIABILITY TO SERVICE THE SECTION
MERELY CARRIED FORWARD THE PREEXISTING LAW, SO THAT IN SOME SITUATIONS
SERVICE IN A DISTRICT WOULD NOT BE VALID, EVEN THOUGH VENUE WERE
CLEARLY ESTABLISHED UNDER SEC. 12.  FN21 

BUT REGARDLESS OF THE PRONOUNCEMENT'S EFFECT, THE DECISION, BY
RESOLVING THE VENUE PROBLEM, SUBSTANTIALLY REMOVED THE SERIOUS
OBSTACLES AND PRACTICAL IMMUNITIES TO SUIT WHICH HAD GROWN UP UNDER
SEC. 7 OF THE SHERMAN ACT, IN BY FAR THE LARGER NUMBER OF ANTITRUST
CASES, I.E., FOR THOSE NOT INVOLVING COMPANIES INCORPORATED OUTSIDE THE
UNITED STATES.  IN THEM THE FACT THAT SERVICE MAY BE DUBIOUS IN THE
DISTRICT OF SUIT AND CAN BE ASSURED ONLY BY CAUSING PROCESS TO RUN TO
ANOTHER DISTRICT, AS IN THE EASTMAN CASE, PRESENTS NO SUCH OBSTACLE TO
BRINGING AND MAINTAINING THE SUIT AS EXISTED PRIOR TO SEC. 12.  THE
NECESSITY, IF IT IS THAT, FOR DIRECTING PROCESS TO ANOTHER DISTRICT,
CREATES AT MOST SOME SLIGHT INCONVENIENCE AND ADDITIONAL EXPENSE. 

                                 II. 

IN THIS CASE, HOWEVER, WE DEAL WITH A COMPANY INCORPORATED OUTSIDE
THE UNITED STATES.  BUT THERE CAN BE NO QUESTION OF THE EXISTENCE OF
"JURISDICTION," IN THE SENSE OF VENUE UNDER SEC. 12, OVER SCOPHONY IN
THE SOUTHERN DISTRICT OF NEW YORK.  TO SAY THAT ON THE FACTS PRESENTED
SCOPHONY TRANSACTED NO BUSINESS "OF ANY SUBSTANTIAL CHARACTER" THERE
DURING THE PERIOD COVERED BY INSTITUTION OF THE SUIT AND THE TIMES OF
SERVING PROCESS WOULD BE TO DISREGARD THE PRACTICAL, NONTECHNICAL,
BUSINESS STANDARD SUPPLIED BY "OR TRANSACTS BUSINESS" IN THE VENUE
PROVISION.  IT WOULD BE ALSO TO IGNORE THE FACT THAT SCOPHONY THEN AND
THERE WAS CARRYING ON LARGELY, IF NOT EXCLUSIVELY, THE ONLY BUSINESS IN
WHICH IT COULD ENGAGE AT THE TIME. 

SCOPHONY'S OPERATIONS IN NEW YORK WERE A CONTINUOUS COURSE OF
BUSINESS BEFORE AND THROUGHOUT THE PERIOD IN QUESTION HERE.  THEY
CONSISTED IN STRENUOUS EFFORTS NOT SIMPLY TO SAVE AN AMERICAN
"INVESTMENT," AS IS URGED, BUT TO SALVAGE AND RESUSCITATE SCOPHONY'S
WHOLE ENTERPRISE FROM THE DISASTERS BROUGHT UPON IT BY THE WAR.  AS
WITH SUCH EFFORTS GENERALLY, CHANGES IN METHOD AND IMMEDIATE OBJECTIVE
TOOK PLACE AS EACH ONE TRIED IN TURN FAILED TO WORK OUT.  BUT THOSE
CHANGES BROUGHT NONE IN ULTIMATE OBJECTIVE, NAMELY, TO FIND A MODE OF
SAVING AND PROFITABLY EXPLOITING THE SCOPHONY INVENTIONS; AND NONE IN
THE INTENSITY OR CONTINUITY WITH WHICH THAT OBJECT WAS PURSUED IN NEW
YORK. 

FIRST WAS THE PHASE OF ATTEMPTING TO SET UP IN THIS COUNTRY AS
MANUFACTURER AND SELLER OF TELEVISION EQUIPMENT.  WHEN THAT FAILED, THE
COMPANY TURNED TO LICENSING AND EXPLOITING ITS PATENTS BY OTHER MEANS. 
THIS WAS DONE THROUGH THE COMPLICATED ARRANGEMENTS FOR WHAT PRACTICALLY
IF NOT ALSO TECHNICALLY WAS A JOINT ADVENTURE WITH OTHER COMPANIES. 
THAT PROJECT WAS CARRIED OUT NOT MERELY THROUGH CORPORATE FORMS AND
ARRANGEMENTS BUT BY CONTRACTS BINDING THE PARTICIPATING COMPANIES TO
THE COMMON ENTERPRISE, AS WELL AS THE SPECIAL MEDIUM OF EXECUTING IT,
AMERICAN SCOPHONY.  IN THIS EACH CORPORATE PARTICIPANT HAD ITS SPECIAL
FUNCTIONS, CONTROLS AND RESTRICTIONS CREATED IN PART BY SHARE OWNERSHIP
IN AMERICAN SCOPHONY, BUT ALSO IN IMPORTANT RESPECTS BY CONTRACT BOTH
BEYOND THE STOCK CONTROLS AND DICTATING THEIR CHARACTER.  FN22
FINALLY, AS THE AFFAIRS OF THE KEYSTONE OF THE STRUCTURE, AMERICAN
SCOPHONY, CAME TO AND CONTINUED IN STALEMATE, THE IMMEDIATE OBJECTIVE
SHIFTED ONCE MORE, TO GETTING OUT OF THE TRAP.  AGAIN THE SHIFT WAS IN
DIRECT AND CONSTANT PURSUIT OF SCOPHONY'S PRIMARY AND CONTINUING
OBJECT, TO FIND A WAY TO SAVE AND TO EXPLOIT ITS PATENTS. 

THIS IS A STORY OF BUSINESS IN TROUBLE, EVEN DESPERATE.  WE MAY HAVE
SYMPATHY FOR THE COMPANY'S PLIGHT.  BUT IT DOES NOT FOLLOW THAT SUCH
CONTINUING, INTENSIVE ACTIVITIES TO SAVE THE BUSINESS AND PUT IT ON A
NORMAL COURSE, EVEN THOUGH SHIFTING AS THEY DID IN THE SUCCESSIVE WINDS
THAT BLEW, DID NOT CONSTITUTE "TRANSACTING BUSINESS" OF "ANY
SUBSTANTIAL CHARACTER."  NOR CAN WE SAY THAT ANY OF THE MAJOR SHIFTS IN
TACKING TOWARD THE ULTIMATE END STOPPED OR INTERRUPTED THE COURSE OF
THE COMPANY'S BUSINESS ACTIVITY.  AT NO TIME WAS THE DRIVE TOWARD
ACHIEVING ITS BASIC OBJECTS SUSPENDED. 

APPELLEE WOULD AVOID THIS VIEW AND ITS CONSEQUENCES BY TAKING AN
ENTIRELY DIFFERENT CONCEPTION OF WHAT TOOK PLACE.  IT EMPHASIZES THAT
SCOPHONY'S CORPORATE OBJECTS, AS STATED IN ITS CHARTER, WERE TO
MANUFACTURE AND SELL TELEVISION EQUIPMENT.  HENCE IT CONCLUDES THAT
WHEN ALL NEW YORK ACTIVITY DIRECTLY POINTING TO THAT END CEASED, AND
WAS FOLLOWED BY THE PHASE OF SEEKING TO EXPLOIT THE PATENTS THROUGH THE
ARRANGEMENTS CENTERING AROUND AMERICAN SCOPHONY, THE BRITISH COMPANY
CEASED TO BE ENGAGED IN PROMOTING ITS CORPORATE OBJECTS AND THUS IN
CARRYING ON OR DOING BUSINESS IN NEW YORK FOR THE RELEVANT STATUTORY
PURPOSES.  FROM THEN ON, IT IS CLAIMED, SCOPHONY BECAME CONCERNED
SOLELY WITH CREATING AND PROTECTING AN "INVESTMENT," NAMELY, IN
AMERICAN SCOPHONY'S SHARES.  NOR DID SCOPHONY RESUME THE DOING OF
BUSINESS WHEN THAT EFFORT ALSO FAILED AND THE FINAL STAGE OF SEEKING TO
BREAK THE IMPASSE ARRIVED, BECAUSE MANUFACTURING AND SALE OF EQUIPMENT
WERE NOT REVIVED. 

TO THIS VIEW OF THE SEQUENCE OF EVENTS APPELLEE THEN SEEKS TO APPLY
THIS COURT'S DECISIONS INTERPRETING "FOUND" UNDER SEC. 7 AND SIMILAR
REQUIREMENTS IN APPLICATION TO MANUFACTURING AND SELLING COMPANIES,
FN23  AND ALSO THE LIKE EASTMAN DICTUM CONCERNING SEC. 12.  IN DOING
THIS IT SEEKS ESPECIALLY TO INVALIDATE THE SERVICE BY CASTING UP FROM
THOSE DECISIONS A CHECK LIST OF SPECIFIC AND OFTEN MINOR INCIDENTS OF
THAT SORT OF BUSINESS DONE OR NOT DONE AS RELEVANT TO WHETHER BUSINESS
IS BEING CARRIED ON, AND THEN MATCHING AGAINST THE LIST SCOPHONY'S NEW
YORK ACTIVITIES AS OF THE TIMES OF SERVICE.  FN24 

OBVIOUSLY THIS VIEW OF THE FACTS AND OF THE DETERMINATIVE LEGAL
APPROACH IS AT WIDE VARIANCE FROM THE ONES WE HAVE TAKEN IN DEALING
WITH THE QUESTION OF VENUE.  BUT WE DO NOT FIND IT NECESSARY, IN ORDER
TO REJECT IT FOR PURPOSES OF SUSTAINING THE SERVICE, TO CONSIDER
WHETHER THE PROCESS CLAUSE OF SEC. 12 SHOULD BE GIVEN SCOPE BEYOND THAT
INDICATED BY THE EASTMAN DICTUM.  FOR IN ANY EVENT WE THINK THAT
APPELLEE AND THE DISTRICT COURT HAVE MISCONCEIVED THE EFFECTS OF THE
FACTS AND OF THE DECISIONS ON WHICH THEY RELY, FOR DETERMINING THE
VALIDITY OF THE SERVICE IN THIS CASE. 

CERTAINLY APPELLEE'S CONCLUSIONARY PREMISE CANNOT BE ACCEPTED, THAT
ITS SOLE AUTHORIZED OR ACTUAL BUSINESS WAS MANUFACTURING AND SELLING
EQUIPMENT; OR THEREFORE THE FURTHER ONE THAT NO OTHER ACTIVITY ON ITS
BEHALF COULD CONSTITUTE DOING OR ENGAGING IN BUSINESS.  INDEED IT WAS
AUTHORIZED TO TAKE OUT, HOLD AND EXPLOIT TELEVISION PATENTS, AND DOING
THIS WAS CERTAINLY AS MUCH PART OF ITS BUSINESS AS MANUFACTURING AND
SELLING THE EQUIPMENT THEY COVERED.  THERE IS NOTHING TO SHOW THAT
SCOPHONY WAS RESTRICTED BY ITS CHARTER OR OTHERWISE TO EXPLOITING ITS
PATENTS EXCLUSIVELY BY DIRECT MANUFACTURE AND SALE.  WHEN THEREFORE,
AFTER THAT METHOD HAD FAILED, THE COMPANY CHOSE ANOTHER, IT WAS NOT
CEASING TO DO BUSINESS.  THAT CONSEQUENCE DID NOT FOLLOW MERELY BECAUSE
IT DISCONTINUED THE ACTIVITIES INCIDENT TO CONTINUING THE DISCARDED
METHOD. 

THE ALTERNATIVE ONE CHOSEN WAS NOT A MATTER SIMPLY OF LICENSING
PATENTS TO OTHERS, FOR ACTIVE EXPLOITATION BY THEM.  NOR WAS IT ONLY A
CASUAL ACT OR ACTS OF CONTRACTING.  THE WHOLE FRAMEWORK OF THIS PHASE
OF THE NEW YORK ACTIVITIES WAS DICTATED BY THE MASTER AND SUPPLEMENTAL
AGREEMENTS.  THESE WERE NOT MERE LICENSING ARRANGEMENTS, NOR DID THEY
MAKE SCOPHONY NOTHING MORE THAN A SHAREHOLDER FOR INVESTMENT PURPOSES,
WITH ONLY SUCH A SHAREHOLDER'S VOTING RIGHTS AND CONTROL IN AMERICAN
SCOPHONY.  THE CONTRACTS CREATED CONTROLS IN SCOPHONY, AND IN THE
AMERICAN INTERESTS AS WELL, WHICH TAKEN IN CONJUNCTION WITH THE STOCK
CONTROLS CALLED FOR CONTINUING EXERCISE OF SUPERVISION OVER AND
INTERVENTION IN AMERICAN SCOPHONY'S AFFAIRS.  FN25  WE NEED NOT DECIDE
WHETHER, IN VIEW OF THE AGREEMENTS' CONTINUING AND PERVASIVE EFFECTS,
THEY COULD BE CONSIDERED AS SUFFICING IN THEMSELVES TO MAKE SCOPHONY
"FOUND" WITHIN THE NEW YORK DISTRICT.  FN26  WHETHER SO OR NOT, THEY
SET THE PATTERN FOR A REGULAR AND CONTINUING PROGRAM OF PATENT
EXPLOITATION REQUIRING, AS WE HAVE SAID, SCOPHONY'S CONSTANT
SUPERVISION AND INTERVENTION.    THAT NECESSITY WAS SHOWN, AMONG OTHER
WAYS, BY THE CONTRACTUAL PROVISIONS FOR INTERCHANGE OF DATA AND
INFORMATION, AND FURTHER BY THE FACT THAT THERE WAS SUSTAINED
INTERCHANGE OF CORRESPONDENCE BETWEEN LEVEY AND SCOPHONY DEVOTED TO
SCOPHONY'S AFFAIRS AND INTERESTS IN THIS COUNTRY.  LEVEY KEPT SCOPHONY
INFORMED FULLY OF ALL THAT WENT ON HERE, AND IN TURN RECEIVED AND
CARRIED OUT ITS INSTRUCTIONS RESPECTING AMERICAN SCOPHONY'S AFFAIRS AND
ITS OWN. 

IN ALL THIS HE WAS NOT ACTING MERELY AS AN OFFICER OF AMERICAN
SCOPHONY.  RATHER HE WAS ALSO SCOPHONY'S DIRECTOR AND REPRESENTATIVE,
AUTHORIZED TO ACT IN ITS BEHALF AND INTEREST.  INDEED IT WAS AS
SCOPHONY'S REPRESENTATIVE THAT HE WAS NAMED AS PRESIDENT OF AMERICAN
SCOPHONY.  HIS POSITION WAS A DUAL ONE.  HE WAS NOT A MERE
SHAREHOLDER'S OR INVESTOR'S AGENT SEEKING INFORMATION ABOUT THAT
CORPORATION'S AFFAIRS FOR PURPOSES OF DEALING WITH THE STOCK.  HIS
FUNCTIONS AND ACTIVITIES WERE MUCH BROADER AND RELATED TO SCOPHONY'S
INTERESTS AS MUCH AS TO AMERICAN SCOPHONY'S.  SCOPHONY'S NEW YORK
ACTIVITIES THEREFORE WERE NOT CONFINED TO NEGOTIATION AND EXECUTION OF
THE AGREEMENTS.  NEITHER WERE THEY CONCERNED ONLY WITH MERE STOCK
OWNERSHIP OR "INVESTMENT" AS IS URGED, NOR WERE THEY SIMPLY OCCASIONAL
ACTS OF CONTRACTING, LIKE THOSE IN THE DECISIONS APPELLEE CITES. 

MOREOVER, OTHER INDIVIDUALS CARRIED ON FOR SCOPHONY IN CONTINUING
EFFORTS  FN27  TO RESOLVE THE IMPASSE.  APART FROM WHAT WAS DONE BY
OTHERS, ELCOCK CAME TO NEW YORK WITH UNRESTRICTED AND IRREVOCABLE POWER
TO ACT ON SCOPHONY'S BEHALF.  INDEED IT MIGHT ALMOST BE SAID, IN VIEW
OF HIS TRIPLE POSITION AS MORTGAGEE, CORPORATE OFFICER AND ATTORNEY-IN
FACT, THAT FOR ALL RELEVANT PURPOSES AT THIS PHASE OF SCOPHONY'S
ACTIVITY, HE WAS THE COMPANY.  THE STALEMATE PUT SCOPHONY'S AFFAIRS IN
THIS COUNTRY AT A STANDSTILL ALONG WITH THOSE OF AMERICAN SCOPHONY. 
AND SCOPHONY'S EFFORTS TO EXTRICATE ITSELF WERE BOTH STRENUOUS AND
CONTINUOUS. 

THOSE EFFORTS WERE NOT CESSATION OF ENGAGING IN BUSINESS.  THEY WERE
DIRECTED ENTIRELY TO WARDING OFF THAT FATE.  THEIR OBJECT WAS NOT TO
LIQUIDATE, IT WAS TO RESUSCITATE THE BUSINESS OF SCOPHONY AND, AS IN
ALL PREVIOUS STAGES, PUT IT ON A NORMAL COURSE AGAIN.  IN DOING ALL
THIS, SCOPHONY WAS ENGAGING IN BUSINESS CONSTANTLY AND CONTINUOUSLY,
NOT RETIRING FROM IT OR INTERRUPTING IT.  CF. MUTUAL LIFE INSURANCE CO.
V. SPRATLEY, 172 U.S. 602; PENNSYLVANIA LUMBERMEN'S INSURANCE CO. V.
MEYER, 197 U.S. 407; ST. LOUIS S.W.R. CO. V. ALEXANDER, 227 U.S. 218. 
THE INTERRUPTIONS WERE ONLY IN PARTICULAR PHASES OF ITS AUTHORIZED
ADVENTURE, NOT IN THE CONTINUITY, INTENSITY OR TOTALITY OF THE
ADVENTURE ITSELF. 

IN SUM, WE HAVE NO SUCH SITUATION AS WAS PRESENTED IN THE
MANUFACTURING AND SELLING CASES ON WHICH APPELLEE RELIES.  THEY
CONCERNED ENTIRELY DIFFERENT FACTS AND ENTERPRISES.  IN NONE WAS THERE
A SHIFTING FROM A COURSE OF BUSINESS IN PURSUIT OF ONE CORPORATE OBJECT
OR OBJECTS, VIZ., MANUFACTURING AND SELLING, TO ANOTHER CONTINUING MODE
OF ACHIEVING A BASIC CORPORATE OBJECTIVE, NAMELY, THE EXPLOITING OF
PATENTS BY COMPLEX WORKING ARRANGEMENTS PARTAKING PRACTICALLY OF THE
CHARACTER OF A COMMON ENTERPRISE WITH OTHERS AND REQUIRING CONSTANT
SUPERVISION AND INTERVENTION BEYOND NORMAL EXERCISE OF SHAREHOLDERS'
RIGHTS BY THE PARTICIPATING COMPANIES' REPRESENTATIVES QUA SUCH. 

WE KNOW OF NO DECISION WHICH HAS HELD OR INDICATED THAT ON SUCH FACTS
THE PROCESS CLAUSE OF SEC. 12 IS NOT ADEQUATE TO CONFER POWER TO MAKE
VALID SERVICE.  SUCH A CONTINUING AND FAR-REACHING ENTERPRISE IS NOT TO
BE GOVERNED IN THIS RESPECT BY RULES EVOLVED WITH REFERENCE TO THE VERY
DIFFERENT BUSINESSES AND ACTIVITIES OF MANUFACTURING AND SELLING.  NOR,
WHAT COMES TO THE SAME THING, IS THE DETERMINATION TO BE MADE FOR SUCH
AN ENTERPRISE BY ATOMIZING IT INTO MINUTE PARTS OR EVENTS, IN DISREGARD
OF THE ACTUAL UNITY AND CONTINUITY OF THE WHOLE COURSE OF CONDUCT, BY
THE PROCESS SOMETIMES APPLIED IN BORDERLINE CASES INVOLVING
MANUFACTURING AND SELLING ACTIVITIES. 

FOR PRESENT PURPOSES THOSE DECISIONS MAY BE LEFT UNTOUCHED FOR THE
FACTS AND SITUATIONS IN WHICH THEY HAVE ARISEN AND TO WHICH THEY HAVE
BEEN APPLIED.  BUT THERE COULD BE NO VALID OBJECT IN EXPANDING THEIR
PULVERIZING APPROACH TO SITUATIONS AS DIFFERENT AND DISTINCT AS THIS
ONE, COMPREHENDED WITHIN NEITHER THEIR RULINGS NOR THEIR EFFECTS.  MORE
ESPECIALLY WOULD SUCH AN EXTENSION BE INAPPROPRIATE, WHEN IT IS
RECALLED THAT SEC. 12 GOVERNS VENUE AND SERVICE IN ANTITRUST SUITS
AGAINST CORPORATIONS.  FOR, IN CASES AGAINST COMPANIES INCORPORATED
OUTSIDE THE UNITED STATES, THAT EXTENSION WOULD BRING BACK ALL THE
OBSTACLES TO ENFORCEMENT OF ANTITRUST POLICIES AND REMEDIES WHICH
EXISTED FOR DOMESTIC CORPORATIONS BEFORE SEC. 12 WAS ENACTED TO GIVE
RELIEF FROM THOSE OBSTACLES.  EVEN THOUGH VENUE WERE CLEARLY
ESTABLISHED, AS HERE, THE EXTENSION OFTEN WOULD MAKE VALID SERVICE
IMPOSSIBLE, SINCE PROCESS COULD NOT BE ISSUED TO RUN FOR SUCH
CORPORATIONS TO THE FOREIGN COUNTRIES OF WHICH THEY ARE "INHABITANTS." 
WE ARE UNWILLING TO CONSTRUE SEC. 12 IN A MANNER TO BRING BACK THE
EVILS IT ABOLISHED, FOR SITUATIONS NOT FORECLOSED BY PRIOR DECISIONS,
AND THUS TO DEFEAT ITS POLICY TOGETHER WITH THAT OF THE ANTITRUST LAWS,
SO AS TO MAKE ANOTHER AMENDMENT NECESSARY. 

WE THINK THAT SCOPHONY NOT ONLY WAS "TRANSACTING BUSINESS" OF A
SUBSTANTIAL CHARACTER IN THE NEW YORK DISTRICT AT THE TIMES OF SERVICE,
SO AS TO ESTABLISH VENUE THERE, BUT ALSO ON THE SUM OF THE FACTS
REGARDING ITS ACTIVITIES WAS "FOUND" THERE WITHIN THE MEANING OF THE
SERVICE-OF-PROCESS CLAUSE OF SEC. 12.  OF COURSE SUCH A RULING PRESENTS
NO CONCEIVABLE ELEMENT OF OFFENSE TO "TRADITIONAL NOTIONS OF FAIR PLAY
AND SUBSTANTIAL JUSTICE."  SEE INTERNATIONAL SHOE CO. V. WASHINGTON,
SUPRA, AT 316; CF. HUTCHINSON V. CHASE & GILBERT, 45 F.2D 139, 141. 

IT REMAINS ONLY TO SAY THAT WE DO NOT STOP TO CONSIDER WHETHER, AS IS
ARGUED, LEVEY'S AUTHORITY TO ACT FOR SCOPHONY HAD EXPIRED OR BEEN
REVOKED AT THE TIME SERVICE WAS MADE BY DELIVERY OF PROCESS TO HIM. 
FOR WHEN SERVICE WAS MADE BY DELIVERY TO ELCOCK, HE HAD UNREVOKED AND
IRREVOCABLE AUTHORITY TO ACT IN SCOPHONY'S BEHALF IN THE NEW YORK
DISTRICT, AND THAT SERVICE WAS VALID TO CONFER PERSONAL JURISDICTION
OVER SCOPHONY. 

ACCORDINGLY, THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO
THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  "SEC.  12,  THAT ANY SUIT, ACTION, OR PROCEEDING UNDER THE
ANTITRUST LAWS AGAINST A CORPORATION MAY BE BROUGHT NOT ONLY IN THE
JUDICIAL DISTRICT WHEREOF IT IS AN INHABITANT, BUT ALSO IN ANY DISTRICT
WHEREIN IT MAY BE FOUND OR TRANSACTS BUSINESS; AND ALL PROCESS IN SUCH
CASES MAY BE SERVED IN THE DISTRICT OF WHICH IT IS AN INHABITANT, OR
WHEREVER IT MAY BE FOUND."  38 STAT. 736, 15 U.S.C. SEC. 22. 

FN2  THE SUIT WAS INSTITUTED AGAINST SCOPHONY, LIMITED (DESIGNATED IN
THIS OPINION AS "SCOPHONY"), SCOPHONY CORPORATION OF AMERICA
(DESIGNATED "AMERICAN SCOPHONY"), GENERAL PRECISION EQUIPMENT
CORPORATION (DESIGNATED "GENERAL PRECISION"), TELEVISION PRODUCTION,
INC. (DESIGNATED "PRODUCTIONS"), PARAMOUNT PICTURES, INC. (DESIGNATED
"PARAMOUNT"), AND THREE INDIVIDUAL DEFENDANTS, ARTHUR LEVEY AND THE
PRESIDENTS OF GENERAL PRECISION AND PRODUCTIONS.  THE CORPORATIONS,
EXCEPT SCOPHONY, ARE INCORPORATED IN THE UNITED STATES. 

FN3  PURSUANT TO SEC. 2 OF THE EXPEDITING ACT OF FEBRUARY 11, 1903,
32 STAT. 823, 15 U.S.C. SEC. 29, AND SEC. 238 OF THE JUDICIAL CODE, 43
STAT. 938, 28 U.S.C. SEC. 345. 

FN4  THE INVENTIONS AND PATENTS IN THE MAIN RELATE TO TWO SYSTEMS OF
TELEVISION TRANSMISSION AND RECEPTION, ONE KNOWN AS THE "SUPERSONIC"
SYSTEM AND THE OTHER AS THE "SKIATRON" SYSTEM.  WE SHALL AT TIMES REFER
TO THE PRESENT AND FUTURE PATENTS, PROCESSES, DESIGNS, TECHNICAL DATA,
ETC., RELATING TO THESE TWO SYSTEMS AS THE SCOPHONY INVENTIONS. 

A THIRD SYSTEM, THE CATHODE-FLUORESCENT SYSTEM, WAS DEVELOPED EARLY
IN THIS CENTURY AND IS THE PRINCIPAL METHOD OF TELEVISION TRANSMISSION
AND RECEPTION USED IN THE UNITED STATES TODAY. 

FN5  AN AGREEMENT OF FEBRUARY 4, 1943, AMENDED THE ORIGINAL AGREEMENT
SO AS TO GIVE TWO-THIRDS OF THE "A" SHARES TO SCOPHONY, THE REMAINDER
TO INDIVIDUALS. 

FN6  THE COMPLAINT ALLEGED THAT THE EFFECTS OF THE AGREEMENTS AND
UNDERSTANDINGS WERE TO CREATE A TERRITORIAL DIVISION OF THE MANUFACTURE
AND SALE OF TELEVISION PRODUCTS, ASSIGNING THE EASTERN HEMISPHERE TO
SCOPHONY AND THE WESTERN HEMISPHERE TO GENERAL PRECISION AND
PRODUCTIONS; TO SUPPRESS AND RESTRAIN COMPETITION IN THE MANUFACTURE
AND SALE OF TELEVISION EQUIPMENT, BOTH IN THE DOMESTIC AND IN THE
EXPORT MARKETS; AND TO GIVE GENERAL PRECISION AND PRODUCTIONS MONOPOLY
POWER OVER THE SCOPHONY INVENTIONS WHICH ENABLED THEM TO SUPPRESS THEIR
EXPLOITATION AND DEPRIVE OTHERS OF THEIR USE. 

FN7  THESE INCLUDED AT VARIOUS TIMES TWO AMERICAN ATTORNEYS, A MEMBER
OF THE BRITISH PARLIAMENT, AND AN ENGLISH OFFICER. 

FN8  LEVEY IMMEDIATELY INFORMED SCOPHONY IN ENGLAND OF THIS ACTION
AND ADVISED IT TO DESIGNATE APPROPRIATE COUNSEL.  ON DECEMBER 21, 1945,
HE SENT A COPY OF THE COMPLAINT TO SCOPHONY BY AIRMAIL. 

FN9  THE POWER OF ATTORNEY SET FORTH SCOPHONY'S DESIRE TO APPOINT
ELCOCK TO ACT "AND BIND THE COMPANY IN ALL OR ANY MATTERS AFFECTING THE
COMPANY'S INTERESTS IN THE UNITED STATES  ...  "  IT THEN AUTHORIZED
ELCOCK TO INSTITUTE AND PROSECUTE ALL PROCEEDINGS NECESSARY TO CONSERVE
SCOPHONY'S INTERESTS; TO DEFEND OR COMPROMISE ANY SUITS BROUGHT AGAINST
SCOPHONY; TO SETTLE ACCOUNTS; TO ENGAGE OR DISMISS SUBAGENTS; TO BORROW
MONEY; TO DISPOSE OF ANY AND ALL OF SCOPHONY'S PROPERTY AND INTERESTS
IN THE UNITED STATES; AND "GENERALLY TO REPRESENT THE COMPANY IN THE
UNITED STATES OF AMERICA IN ALL MATTERS IN ANY WAY AFFECTING OR
PERTAINING TO THE COMPANY  ...  " 

FN10  MORE THAN ONCE MARSHALL HAD DIFFICULTY IN TRANSFERRING TO
CORPORATIONS OR OTHER INSTITUTIONS LEGAL CONCEPTIONS AND RELATIONS
SHAPED IN NOMENCLATURE AND IN FACT FROM NORMATIVE EVOLUTION IN RELATION
TO PERSONS OF FLESH AND BLOOD. 

SEE, E.G., BANK V. DEVEAUX, 5 CRANCH 61, WHERE HE WAS UNABLE TO ADAPT
THE CONCEPT OF CORPORATE "INHABITANCY," APPLIED IN DECISIONS HE CITED,
FOR FITTING THE CORPORATION INTO THE CONSTITUTIONAL SCHEME OF DIVERSITY
JURISDICTION.  HIS INDIVIDUALISTIC SOLUTION BROUGHT DIFFICULTIES WHICH
LASTED FOR DECADES.  SEE HENDERSON, THE POSITION OF FOREIGN
CORPORATIONS IN AMERICAN CONSTITUTIONAL LAW 50-76; HARRIS, A
CORPORATION AS A CITIZEN, 1 VA. L. REV. 507.  CF. BAPTIST ASSOCIATION
V. HART'S EXECUTORS, 4 WHEAT.  1. 

FN11  SEE, E.G., CAHILL, JURISDICTION OVER FOREIGN CORPORATIONS AND
INDIVIDUALS WHO CARRY ON BUSINESS WITHIN THE TERRITORY, 30 HARV. L.
REV. 676; SCOTT, JURISDICTION OVER NONRESIDENTS DOING BUSINESS WITHIN A
STATE, 32 HARV. L. REV. 871; BULLINGTON, JURISDICTION OVER FOREIGN
CORPORATIONS, 6 N.C.L. REV. 147; NOTE, WHAT CONSTITUTES DOING BUSINESS
BY A FOREIGN CORPORATION FOR PURPOSES OF JURISDICTION, 29 COL. L. REV.
187. 

FN12  THE VERY FEDERALISM OF OUR STRUCTURE MAGNIFIES THE PROBLEM, BY
MULTIPLYING STATE AND OTHER GOVERNMENTAL BOUNDARIES ACROSS WHICH
CORPORATE ACTIVITY RUNS WITH THE GREATEST FREEDOM.  THE PROBLEM ARISES
ON CONSTITUTIONAL AS WELL AS STATUTORY AND COMMON-LAW LEVELS.  CF.
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310; PUERTO RICO V.
RUSSELL & CO., 288 U.S. 476. 

FN13  APPELLEE MAKES NO SUGGESTION OF A CONSTITUTIONAL ISSUE.  THE
GOVERNMENT, HOWEVER, SUGGESTS THAT, IN VIEW OF OUR RECENT DECISION IN
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310, WHICH WAS CONCERNED
WITH THE JURISDICTION OF A STATE OVER A FOREIGN CORPORATION FOR
PURPOSES OF SUIT AND SERVICE OF PROCESS, AND IN VIEW OF ASPECTS OF
SIMILARITY BETWEEN THAT PROBLEM AND THE ONE NOW PRESENTED, WE EXTEND TO
THIS CASE AND TO SEC. 12 THE CRITERIA THERE FORMULATED AND APPLIED. 
THERE IS NO NECESSITY FOR DOING SO.  THE FACTS OF THE TWO CASES ARE
CONSIDERABLY DIFFERENT AND, AS WE HAVE SAID, WE ARE NOT CONCERNED HERE
WITH FINDING THE UTMOST REACH OF CONGRESS' POWER. 

FN14  THE COURT SAID:  "THE GENERAL RULE DEDUCIBLE FROM ALL OUR
DEDISIONS IS THAT THE BUSINESS MUST BE OF SUCH NATURE AND CHARACTER AS
TO WARRANT THE INFERENCE THAT THE CORPORATION HAS SUBJECTED ITSELF TO
THE LOCAL JURISDICTION, AND IS BY ITS DULY AUTHORIZED OFFICERS OR
AGENTS PRESENT WITHIN THE STATE OR DISTRICT WHERE SERVICE IS
ATTEMPTED.  PHILADELPHIA & READING RY. CO. V. MCKIBBIN, 243 U.S. 264;
ST. LOUIS SOUTHWESTERN RY. CO. V. ALEXANDER, 227 U.S. 218, 226."  246
U.S. 79, 87. 

FN15  COUNSEL FOR THE DEFENDANT EQUATED THE WORDS "INHABITANT" AND
"FOUND" OF SEC. 12 TO "RESIDES OR IS FOUND" OF SEC. 7 OF THE SHERMAN
ACT.  THEY THEN WENT ON TO ARGUE THAT THE ADDITION OF "OR TRANSACTS
BUSINESS" IN THE VENUE CLAUSE OF SEC. 12 DID NOT BROADEN THE SECTION,
BUT MERELY MADE EXPLICIT WHAT THE COURT HAD ALREADY DECIDED UNDER THE
EARLIER STATUTE.  273 U.S. AT 361.  THIS, BECAUSE "OR TRANSACTS
BUSINESS" WAS SAID TO BE NOTHING MORE THAN "CARRYING ON BUSINESS,"
WHICH WAS THE CONTENT THE COURT HAD GIVEN TO "IS FOUND" IN SEC. 7, BY
THE PEOPLE'S TOBACCO CASE AND OTHERS.    FN16  RATHER, THE COURT SAID,
THE SECTION SUPPLEMENTS "THE REMEDIAL PROVISION OF THE ANTI-TRUST ACT
FOR THE REDRESS OF INJURIES RESULTING FROM ILLEGAL RESTRAINTS UPON
INTERSTATE TRADE, BY RELIEVING THE INJURED PERSON FROM THE NECESSITY OF
RESORTING FOR THE REDRESS OF WRONGS COMMITTED BY A NON-RESIDENT
CORPORATION, TO A DISTRICT, HOWEVER DISTANT, IN WHICH IT RESIDES OR MAY
BE 'FOUND' - OFTEN AN INSUPERABLE OBSTACLE - AND ENABLING HIM TO
INSTITUTE THE SUIT IN A DISTRICT, FREQUENTLY THAT OF HIS OWN RESIDENCE,
IN WHICH THE CORPORATION IN FACT TRANSACTS BUSINESS, AND BRING IT
BEFORE THE COURT BY THE SERVICE OF PROCESS IN A DISTRICT IN WHICH IT
RESIDES OR MAY BE 'FOUND.'"  273 U.S. 359, 373.    FN17  SEE ALSO NOTE
16. 

FN18  THE CONCRETE FACTS HELD TO SUSTAIN THE VENUE WERE THAT THE
EASTMAN COMPANY WAS ENGAGED "NOT ONLY IN SELLING AND SHIPPING ITS GOODS
TO DEALERS WITHIN THE GEORGIA DISTRICT, BUT ALSO IN SOLICITING ORDERS
THEREIN THROUGH ITS SALESMEN AND PROMOTING THE DEMAND FOR ITS GOODS
THROUGH ITS DEMONSTRATORS FOR THE PURPOSE OF INCREASING ITS SALES  ...
"  273 U.S. AT 374. 

THE COURT ALSO EXPRESSLY STATED THAT, IN CONTRAST TO PRIOR
LIMITATIONS, THE COMPANY WAS "NONE THE LESS ENGAGED IN TRANSACTING
BUSINESS  ...  BECAUSE OF THE FACT THAT SUCH BUSINESS MAY BE ENTIRELY
INTERSTATE IN CHARACTER AND BE TRANSACTED BY AGENTS WHO DO NOT RESIDE
WITHIN THE DISTRICT," REFERRING IN THIS CONNECTION TO INTERNATIONAL
HARVESTER CO. V. KENTUCKY, 234 U.S. 579, 587, AND DAVIS V. FARMERS CO
OPERATIVE CO., 262 U.S. 312, 316.  273 U.S. 359, 373. 

FN19  I.E., BY ARTFUL ARRANGEMENT OF AGENTS' AUTHORITY, OR OF THEIR
COMINGS AND GOINGS, OR OF THE GEOGRAPHY OF MINUTE INCIDENTS IN
CONTRACTING.  CF. PEOPLE'S TOBACCO CO. V. AMERICAN TOBACCO CO., 246
U.S. 79.  SUCH ARTIFICE SAW ITS DAY END FOR CREATING SUBSTANTIVE
LIABILITY THROUGH A COURSE OF DEALING CONTRARY TO THE ANTITRUST
STATUTES, BUT WITHOUT THEREBY ALSO CREATING VENUE TO ENFORCE IT, WITH
THE ADVENT OF SEC. 12. 

FN20  AS HAS BEEN STATED, THE COMPANY WAS INCORPORATED IN NEW YORK
AND HAD ITS PRINCIPAL OFFICE AND PLACE OF BUSINESS IN ROCHESTER. 

FN21  ALTHOUGH DIFFERENCE OF THAT SORT MAY APPEAR TO BE GENERALLY
INCONGRUOUS, SINCE ORDINARILY IT WOULD SEEM THAT SUSCEPTIBILITY TO SUIT
IN A DISTRICT SHOULD BE ACCOMPANIED BY AMENABILITY TO PROCESS THERE,
SUCH THINGS OF COURSE ARE FOR CONGRESS' DETERMINATION AS MATTERS OF
POLICY RELATING TO THE SCOPE AND CORRELATION, OR LACK OF IT, OF VENUE
AND SERVICE PROVISIONS.  THERE IS CERTAINLY NO CONSTITUTIONAL
REQUIREMENT THAT THE TWO BE COEXTENSIVE.  AND TO SUPPORT THE DICTUM, IF
IT WERE NOW NECESSARY TO RULE ON THE MATTER, CONSIDERATIONS BEYOND THE
VERBAL DIFFERENCE TO WHICH THE EASTMAN OPINION POINTED MIGHT BE
STATED. 

FN22  E.G., THE HEMISPHERIC DIVISION OF TERRITORIES BETWEEN THE
BRITISH AND AMERICAN INTERESTS; THE EXCLUSIVE LICENSING AGREEMENTS
WHICH PREVENTED SCOPHONY FROM GRANTING LICENSES TO INTERESTED AMERICAN
COMPANIES; AND THE ARRANGEMENTS FOR THE INTERCHANGE OF TECHNICAL
INFORMATION WERE CONTRACTUAL, NOT CHARTER LIMITATIONS ON CORPORATE
POWERS.  THE PARTICULAR CORPORATE MEDIUM USED, AMERICAN SCOPHONY, AND
THE REFINEMENTS IN ITS CHARTER AND BY-LAWS GIVING GENERAL PRECISION AND
PRODUCTIONS AN EFFECTIVE VETO POWER OVER ITS OPERATIONS WERE THEMSELVES
ASPECTS OF THE CONTRACTUAL UNDERTAKINGS EMBODIED IN THE MASTER
AGREEMENT AND THE TWO SUPPLEMENTAL AGREEMENTS.  THE MASTER AGREEMENT
ALSO DESIGNATED THE PERSONS TO BECOME OFFICERS AND DIRECTORS OF
AMERICAN SCOPHONY, AS REPRESENTATIVES OF BOTH THE BRITISH AND THE
AMERICAN INTERESTS. 

FN23  E.G., CANNON MFG. CO. V. CUDAHY CO., 267 U.S. 333; CONSOLIDATED
TEXTILE CORP. V. GREGORY, 289 U.S. 85; PEOPLE'S TOBACCO CO. V. AMERICAN
TOBACCO CO., 246 U.S. 79. 

FN24  THE CATALOGUE EMPHASIZES THINGS NOT BEING DONE AS OF THE DATES
OF SERVICE, E.G., MAINTAINING AN OFFICE, WAREHOUSE OR PLACE OF
BUSINESS; OWNING REALTY OR OTHER PHYSICAL PROPERTY; KEEPING A STAFF OF
EMPLOYEES; HAVING AGENTS "OTHER THAN COUNSEL IN THIS CASE AND  ...
ELCOCK"; KEEPING A TELEPHONE OR A LISTING; MAKING SALES; CONDUCTING
RESEARCH; SOLICITING ORDERS.  CORRESPONDINGLY APPELLEE ATOMIZES THE
THINGS THEN BEING DONE INTO SEPARATE, DISCONNECTED EVENTS, VIZ., STOCK
OWNERSHIP (IN AMERICAN SCOPHONY); CONTRACTING WITH AMERICAN SCOPHONY
AND THE OTHER CORPORATIONS FOR TRANSFER AND LICENSING OF PATENTS;
ACTIVITIES TO PROTECT SCOPHONY'S AMERICAN "INTERESTS" BY RESOLVING THE
IMPASSE. 

FN25  SEE NOTE 22 SUPRA.  INDEED THE CONTRACTS SHAPED THE NATURE OF
THE CORPORATE DISTRIBUTION OF POWERS AND VOTING RIGHTS, SO AS TO MAKE
THEM CONFORM TO THE OVER-ALL CHARACTER AND OBJECTS OF THE LARGER COMMON
ENTERPRISE.  THE CHARTER AND BY-LAW PROVISIONS OF AMERICAN SCOPHONY
THEREFORE NOT ONLY WERE GOVERNED BY THE CONTRACTUAL ARRANGEMENTS BUT
CARRIED THEM INTO EXECUTION. 

FN26  ESPECIALLY IN VIEW OF THE FACT THAT SEC. 12 FIXES VENUE AND THE
PLACES FOR SERVING PROCESS IN ANTITRUST SUITS, THERE WOULD SEEM TO BE
SOUND BASIS FOR DIFFERENTIATING THE EXECUTION OF AGREEMENTS SO ALL
PERVASIVE AND FAR-REACHING IN THEIR EFFECTS UPON THE STATUTORY POLICIES
FROM RUN--OF-MINE CASUAL OR INTERMITTENT SALES OF COMMODITIES BY A
MANUFACTURING OR SELLING COMPANY, FOR THE SECTION'S PURPOSES. 

FN27  SEE NOTE 7. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I DEEM IT APPROPRIATE TO STATE WHY I CONCUR MERELY IN THE COURT'S
RESULT. 

THE ONLY QUESTION IN THIS CASE IS WHETHER SCOPHONY LIMITED, A BRITISH
CORPORATION, WHICH HAS ITS OFFICES AND PRINCIPAL PLACE OF BUSINESS IN
LONDON, MAY BE MADE A PARTY DEFENDANT IN A SUIT BY THE UNITED STATES
FOR VIOLATION OF THE SHERMAN LAW PENDING IN THE SOUTHERN DISTRICT OF
NEW YORK.  THE CORPORATION MAY BE BROUGHT INTO COURT IN THAT DISTRICT
IF ITS ACTIVITIES THERE SATISFY THE REQUIREMENTS OF SEC. 12 OF THE
CLAYTON ACT.  ACCORDING TO THIS PROVISION, SCOPHONY LIMITED IS PROPERLY
A PARTY DEFENDANT IN THIS SUIT ONLY IF, BY VIRTUE OF ITS ACTIVITIES, IT
IS "FOUND OR TRANSACTS BUSINESS" IN THE SOUTHERN DISTRICT OF NEW YORK,
AND IT MAY BE SERVED IN THAT DISTRICT IF IT IS "FOUND" THERE. 

WHETHER A CORPORATION "TRANSACTS BUSINESS" IN A PARTICULAR DISTRICT
IS A QUESTION OF FACT IN ITS ORDINARY UNTECHNICAL MEANING.  THE ANSWER
TURNS ON AN APPRAISAL OF THE UNIQUE CIRCUMSTANCES OF A PARTICULAR
SITUATION.  AND A CORPORATION CAN BE "FOUND" ANYWHERE, WHENEVER THE
NEEDS OF LAW MAKE IT APPROPRIATE TO ATTRIBUTE LOCATION TO A
CORPORATION, ONLY IF ACTIVITIES ON ITS BEHALF THAT ARE MORE THAN
EPISODIC ARE CARRIED ON BY ITS AGENTS IN A PARTICULAR PLACE.  THIS
AGAIN PRESENTS A QUESTION OF FACT TURNING ON THE UNIQUE CIRCUMSTANCES
OF A PARTICULAR SITUATION, TO BE ASCERTAINED AS SUCH QUESTIONS OF FACT
ARE EVERY DAY DECIDED BY JUDGES. 

WHAT WAS DONE IN THE SOUTHERN DISTRICT OF NEW YORK ON BEHALF OF
SCOPHONY LIMITED, AS DETAILED IN THE COURT'S OPINION, ESTABLISHES THAT
THE CORPORATION WAS THERE TRANSACTING BUSINESS AND WAS FOUND THERE IN
THE ONLY SENSE IN WHICH A CORPORATION EVER "TRANSACTS BUSINESS" OR IS
"FOUND."  ACCORDINGLY, SCOPHONY LIMITED WAS AMENABLE TO SUIT AND
SERVICE IN THE DISTRICT WITHIN THE REQUIREMENTS OF SEC. 12 OF THE
CLAYTON ACT. 

TO REACH THIS RESULT, HOWEVER, I DO NOT FIND IT NECESSARY TO OPEN UP
DIFFICULT AND SUBTLE PROBLEMS REGARDING THE LAW'S ATTITUDE TOWARD
CORPORATIONS.  I ABSTAIN FROM JOINING THE COURT'S OPINION NOT BECAUSE I
AM IN DISAGREEMENT WITH WHAT IS SAID BUT BECAUSE I AM NOT PREPARED TO
AGREE.  AND I AM NOT PREPARED TO AGREE BECAUSE I DO NOT WISH TO
FORECAST, WHICH AGREEMENT WOULD ENTAIL, THE BEARING OF THE COURT'S
DISCUSSION UPON SITUATIONS NOT NOW BEFORE US BUT AS TO WHICH SUCH
THEORETICAL DISCUSSION IS BOUND TO BE INFLUENTIAL.  LAW, NO DOUBT, IS
CONCERNED WITH "PRACTICAL AND SUBSTANTIAL RIGHTS, NOT TO MAINTAIN
THEORIES."  DAVIS V. MILLS, 194 U.S. 451, 457.  BUT THEORIES OFTEN
DETERMINE RIGHTS.  SINCE I DO NOT KNOW WHERE THE OPINION IN THIS CASE
WILL TAKE ME IN THE FUTURE, I PREFER TO REACH ITS DESTINATION BY THE
MUCH SHORTER ROUTE OF RECOGNIZING THAT A CORPORATION AS SUCH NEVER
TRANSACTS BUSINESS AND IS NEVER FOUND ANYWHERE, BUT DOES "TRANSACT
BUSINESS" AND IS "FOUND" SOMEWHERE BY ATTRIBUTION TO THE CORPORATION OF
WHAT HUMAN BEINGS DO FOR IT.  NO DOUBT LEGAL REASONING MUST BE ON ITS
GUARD NOT TO OVERSIMPLIFY.  DANGERS ALSO LURK IN OVERCOMPLICATING. 

FROM EARLIEST TIMES THE LAW HAS ENFORCED RIGHTS AND EXACTED
LIABILITIES BY UTILIZING A CORPORATE CONCEPT - BY RECOGNIZING, THAT IS,
JURISTIC PERSONS OTHER THAN HUMAN BEINGS.  THE THEORIES BY WHICH THIS
MODE OF LEGAL OPERATION HAS DEVELOPED, HAS BEEN JUSTIFIED, QUALIFIED,
AND DEFINED ARE THE SUBJECT-MATTER OF A VERY SIZABLE LIBRARY.  THE
HISTORIC ROOTS OF A PARTICULAR SOCIETY, ECONOMIC PRESSURES, PHILOSOPHIC
NOTIONS, ALL HAVE HAD THEIR SHARE IN THE LAW'S RESPONSE TO THE WAYS OF
MEN IN CARRYING ON THEIR AFFAIRS THROUGH WHAT IS NOW THE FAMILIAR
DEVICE OF THE CORPORATION.  LAW HAS ALSO RESPONDED TO RELIGIOUS NEEDS
IN RECOGNIZING JURISTIC PERSONS OTHER THAN HUMAN BEINGS.  THUS, IN THE
HINDU LAW AN IDOL HAS STANDING IN COURT TO ENFORCE ITS RIGHTS.  SEE,
E.G., PRAMATHA NATH MULLICK V. PRADYUMNA KUMAR MULLICK, 52 L.R.I.A.
245(1925).  ATTRIBUTION OF LEGAL RIGHTS AND DUTIES TO A JURISTIC PERSON
OTHER THAN MAN IS NECESSARILY A METAPHORICAL PROCESS.  AND NONE THE
WORSE FOR IT.  NO DOUBT, "METAPHORS IN LAW ARE TO BE NARROWLY WATCHED,"
CARDOZO, J., IN BERKEY V. THIRD AVENUE R. CO., 244 N.Y. 84, 94.  BUT
ALL INSTRUMENTS OF THOUGHT SHOULD BE NARROWLY WATCHED LEST THEY BE
ABUSED AND FAIL IN THEIR SERVICE TO REASON. 
..END :





















ANDERSON V. ATCHISON, T. & S.F.R. CO., 333 U.S. 821 


NO. 620.  DECIDED APRIL 26, 1948.  - 31 CAL.2D 117, 187 P.2D 729,
REVERSED. 


IN A SUIT AGAINST A RAILROAD IN A STATE COURT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT TO RECOVER DAMAGES FOR THE WRONGFUL DEATH OF A
CONDUCTOR, A COMPLAINT ALLEGING THAT HE DISAPPEARED FROM A MOVING TRAIN
IN VERY COLD WEATHER AT A TIME WHEN HIS DUTY REQUIRED HIS PRESENCE ON
THE REAR VESTIBULE, THAT HIS ABSENCE WAS DISCOVERED BY OTHER TRAINMEN,
THAT THEY NEGLIGENTLY FAILED TO MAKE PROMPT EFFORTS TO HAVE HIM
RESCUED, AND THAT HE DIED FROM THE RESULTING EXPOSURE, HELD SUFFICIENT
TO SUPPORT A JUDGMENT FOR PLAINTIFF, IF A JURY SHOULD FIND UNDER
APPROPRIATE INSTRUCTIONS THAT THE DEATH RESULTED "IN WHOLE OR IN PART"
FROM FAILURE OF THE RAILROAD'S AGENTS TO DO WHAT "A REASONABLE AND
PRUDENT MAN WOULD ORDINARILY HAVE DONE UNDER THE CIRCUMSTANCES."  PP.
821-823. 

ANDERSON, ADMINISTRATRIX, V. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA. 

IN A SUIT AGAINST A RAILROAD UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT TO RECOVER DAMAGES FOR THE ALLEGED WRONGFUL DEATH OF AN EMPLOYEE, A
STATE COURT HELD THAT THE ALLEGATIONS OF THE COMPLAINT, EVEN IF TRUE,
WERE INSUFFICIENT TO SUPPORT A JUDGMENT FOR PLAINTIFF, AND ENTERED
JUDGMENT FOR DEFENDANT.  THE STATE SUPREME COURT AFFIRMED.  31 CAL.2D
117, 187 P.2D 729.  CERTIORARI GRANTED, JUDGMENT REVERSED, AND CAUSE
REMANDED, P. 823. 

PER CURIAM. 

PETITIONER, AS ADMINISTRATRIX, FILED A COMPLAINT IN A CALIFORNIA
STATE COURT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SEC.
51, TO RECOVER DAMAGES FOR THE ALLEGED WRONGFUL DEATH OF ONE L. C.
BRISTOW.  THE TRIAL COURT HELD THAT THE ALLEGATIONS OF THE COMPLAINT,
EVEN IF TRUE, WERE TOTALLY INSUFFICIENT TO SUPPORT A JUDGMENT FOR
PLAINTIFF, AND ENTERED JUDGMENT FOR THE DEFENDANT.  THE STATE SUPREME
COURT, TWO JUDGES DISSENTING, AFFIRMED ON THE SAME GROUND.  31 CAL.2D
117, 187 P.2D 729.  FN1 

THE COMPLAINT'S ALLEGATIONS AND THE INFERENCES FAIRLY DRAWN FROM THEM
IN SUMMARY ARE AS FOLLOWS: NOVEMBER 24, 1942, THE DECEASED WAS A
CONDUCTOR ON RESPONDENT'S PASSENGER TRAIN WESTBOUND FROM AMARILLO,
TEXAS, TO BELEN, NEW MEXICO.  AT ABOUT 5:30 A.M., WHILE THE TRAIN WAS
MOVING APPROXIMATELY OPPOSITE DEFENDANT'S STATION AT GALLAHER, NEW
MEXICO, DECEDENT FELL FROM THE TRAIN'S REAR VESTIBULE WHERE IT WAS
NECESSARY FOR HIM TO BE IN ORDER PROPERLY TO PERFORM THE DUTY IN WHICH
HE WAS THEN ENGAGED, "CHECKING A CERTAIN TRAIN ORDER SIGNAL AT SAID
STATION" OF GALLAHER.  DECEDENT'S FALL RESULTED IN INJURIES WHICH MADE
IT IMPOSSIBLE FOR HIM TO SECURE HELP BY HIS OWN EFFORTS.  AT THE NEXT
STATION WHERE THE TRAIN STOPPED, ST. VRAIN, RESPONDENT'S EMPLOYEES
"MADE NOTE OF THE ABSENCE OF DECEDENT," BUT PASSED BY IT AND THREE
OTHER STATION STOPS, MELROSE, TAIBAN, AND FORT SUMNER, WITHOUT TAKING
ANY STEPS OF ANY KIND TO ASCERTAIN THE WHEREABOUTS OF DECEDENT OR WHAT
HAD HAPPENED TO HIM.  FINALLY, HOWEVER, AT YESO, NEW MEXICO, THE
REGULAR TRAIN CONDUCTOR DIRECTED RESPONDENT'S EMPLOYEES THERE TO WIRE
OTHER EMPLOYEES ALONG THE ROUTE THE TRAIN HAD TRAVERSED TO ASCERTAIN
DECEDENTHS WHEREABOUTS.  THE YESO EMPLOYEES "CARELESSLY AND
NEGLIGENTLY" FAILED TO TRANSMIT ANY MESSAGE "FOR AN UNNECESSARILY LONG
PERIOD OF TIME," AND WHEN THE MESSAGE WAS FINALLY RECEIVED BY OTHER OF
RESPONDENT'S EMPLOYEES AT CLOVIS, NEW MEXICO, THEY "CARELESSLY AND
NEGLIGENTLY FAILED TO INSTITUTE AND PURSUE A SEARCH FOR DECEDENT WITHIN
A REASONABLE PERIOD OF TIME."  WHEN SEARCH WAS ULTIMATELY MADE DECEDENT
WAS FOUND LYING ALONGSIDE THE TRACK ADJACENT TO THE POINT WHERE HE HAD
FALLEN WHILE PERFORMING HIS DUTIES ON THE REAR VESTIBULE OPPOSITE THE
STATION AT GALLAHER.  THREE DAYS LATER DECEDENT DIED, DUE TO EXPOSURE
TO THE VERY COLD WEATHER FROM THE TIME HE FELL UNTIL HE WAS FINALLY
RESCUED. 

IT THUS APPEARS THAT WE HAVE A COMPLAINT WHICH CHARGES THAT A
CONDUCTOR DISAPPEARS FROM A MOVING TRAIN IN BITTER COLD WEATHER AT A
TIME WHEN HIS DUTY REQUIRES HIM TO BE ON THE REAR VESTIBULE, HIS
ABSENCE IS DISCOVERED, AND EFFORTS OF ANY KIND TO ASCERTAIN AND SAVE
HIM FROM HIS PROBABLE PERIL ARE NOT PROMPTLY MADE BY OTHER TRAIN
EMPLOYEES, THE ONLY PERSONS LIKELY TO KNOW OF HIS DISAPPEARANCE AND THE
PROBABLE DANGERS INCIDENT TO IT.  WE ARE UNABLE TO AGREE THAT HAD
PETITIONER BEEN PERMITTED TO INTRODUCE ALL EVIDENCE RELEVANT UNDER HER
ALLEGATIONS, THE FACTS WOULD HAVE REVEALED A SITUATION AS TO WHICH A
JURY UNDER APPROPRIATE INSTRUCTIONS COULD NOT HAVE FOUND THAT
DECEDENT'S EXPOSURE AND CONSEQUENT DEATH WERE DUE "IN WHOLE OR IN PART"
TO FAILURE OF RESPONDENT'S AGENTS TO DO WHAT "A REASONABLE AND PRUDENT
MAN WOULD ORDINARILY HAVE DONE UNDER THE CIRCUMSTANCES OF THE
SITUATION."  TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54, 67. 
SEE ALSO JAMISON V. ENCARNACION, 281 U.S. 635, 640, 641; BAILEY V.
CENTRAL VERMONT R. CO., 319 U.S. 350, 353; BLAIR V. BALTIMORE & O.R.
CO., 323 U.S. 600, 604; LILLIE V. THOMPSON, 332 U.S. 459, 461-462. 

CERTIORARI IS GRANTED, THE JUDGMENT IS REVERSED, AND THE CAUSE IS
REMANDED TO THE STATE SUPREME COURT FOR PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  REVERSED. 

FN1  THE SUFFICIENCY OF THE COMPLAINT TO STATE A CAUSE OF ACTION WAS
RAISED UNDER CALIFORNIA PROCEDURE BY AN OBJECTION OF RESPONDENT TO
HEARING EVIDENCE.  SUCH A PROCEDURE, THE STATE SUPREME COURT HELD, IS
IN THE NATURE OF A GENERAL DEMURRER UNDER WHICH ALLEGATIONS OF THE
COMPLAINT ARE DEEMED TRUE. 
..END :



















MASSACHUSETTS V. UNITED STATES, 333 U.S. 611 


NO. 157.  ARGUED DECEMBER 10, 1947.  - DECIDED APRIL 19, 1948.  - 160
F.2D 614, AFFIRMED. 


1.  UNDER R.S. SEC. 3466, THE UNITED STATES HAS PRIORITY FOR PAYMENT
FROM AN INSOLVENT DEBTOR'S ESTATE OF FEDERAL INSURANCE CONTRIBUTION
TAXES UNDER TITLE 8 AND UNEMPLOYMENT COMPENSATION TAXES UNDER TITLE 9
OF THE SOCIAL SECURITY ACT, AS AGAINST A STATE'S CLAIM FOR UNEMPLOYMENT
COMPENSATION TAXES IMPOSED BY A STATE STATUTE CONFORMING TO THE FEDERAL
ACT'S REQUIREMENTS, ILLINOIS V. UNITED STATES, 328 U.S. 8; ILLINOIS V.
CAMPBELL, 329 U.S. 362 - EVEN THOUGH THE FUND AVAILABLE FOR
DISTRIBUTION WAS MORE THAN SUFFICIENT TO PAY EITHER THE TITLE 8 OR
TITLE 9 TAXES TO THE UNITED STATES BUT INSUFFICIENT TO PAY BOTH AND THE
DEBTOR'S ASSIGNEE HAD PAID TO THE STATE THE FULL AMOUNT OF ITS CLAIM. 
PP. 612-623. 

(A)  UPON THE INTERVENTION OF AN ACT OF BANKRUPTCY, R.S. SEC. 3466
CUT OFF THE TAXPAYER'S RIGHT UNDER TITLE 9 OF THE SOCIAL SECURITY ACT
TO PAY THE STATE 90% OF THE UNEMPLOYMENT COMPENSATION TAX AND TAKE
FEDERAL CREDIT THEREFOR.  PP. 615-617. 

2.  WHERE THE TOTAL ASSETS OF AN INSOLVENT DEBTOR WERE NOT SUFFICIENT
TO PAY ALL CLAIMS OF THE UNITED STATES ENTITLED TO PRIORITY UNDER R.S.
SEC. 3466, THE PART REMAINING FOR APPLICATION TO ITS CLAIM UNDER TITLE
9 OF THE SOCIAL SECURITY ACT AFTER ALL OTHER CLAIMS HAVE BEEN SATISFIED
CANNOT BE ALLOCATED BETWEEN THE UNITED STATES AND THE STATE, BUT MUST
BE APPLIED IN SETTLEMENT OF THE CLAIM OF THE UNITED STATES.  PP. 623
629. 

(A)  THE EFFECT OF R.S. SEC. 3466 DEPENDS ON THE FACT OF INSOLVENCY,
NOT ON THE DEGREE OF IT. P. 625. 

(B)  THE PRIORITY GIVEN TO THE UNITED STATES BY R.S. SEC. 3466 IS
ABSOLUTE, NOT CONDITIONAL; ONCE ATTACHING IT IS FINAL AND CONCLUSIVE,
AND NOT SUBJECT TO DEFEASANCE.  PP. 625-628. 

(C)  SECTION 902 OF THE SOCIAL SECURITY ACT NEITHER CREATED AN
EXCEPTION TO R.S. SEC. 3466 IN FAVOR OF STATE CLAIMS FOR UNEMPLOYMENT
COMPENSATION TAXES NOR GIVES THE STATE A CLAIM PRIOR TO THAT OF THE
UNITED STATES FOR 90% OF THE AMOUNT OF SUCH TAXES.  PP. 628-629. 

3.  ILLINOIS V. UNITED STATES, 328 U.S. 8, AND ILLINOIS V. CAMPBELL,
329 U.S. 362, CONSIDERED AND REAFFIRMED.  PP. 629-635. 

MASSACHUSETTS ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

IN A SUIT BY THE UNITED STATES TO RECOVER FROM AN INSOLVENT DEBTOR'S
ESTATE FEDERAL INSURANCE CONTRIBUTION TAXES UNDER TITLE 8 AND
UNEMPLOYMENT COMPENSATION TAXES UNDER TITLE 9 OF THE SOCIAL SECURITY
ACT, THE DISTRICT COURT HELD THAT, UNDER R.S. SEC. 3466, THE UNITED
STATES HAD PRIORITY AS TO THE FULL AMOUNT OF THE TITLE 8 TAXES DUE IT
AND AS TO 10% OF THE TITLE 9 TAXES DUE IT.  65 F.SUPP.  763.  THE
CIRCUIT COURT OF APPEALS HELD THAT THE UNITED STATES WAS ENTITLED TO
PRIORITY FOR THE FULL AMOUNT OF ALL ITS CLAIMS, INCLUDING THE TITLE 9
TAXES.  160 F.2D 614.  THIS COURT GRANTED CERTIORARI.  332 U.S. 754. 
AFFIRMED, P. 635. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS FOR ALL PRACTICAL PURPOSES A RENEWAL OF THE LITIGATION
RECENTLY HERE IN ILLINOIS V. UNITED STATES, 328 U.S. 8, AND THE
COMPANION CASE OF ILLINOIS V. CAMPBELL, 329 U.S. 362.  THE FORMER
UNANIMOUSLY HELD THAT THE UNITED STATES HAS PRIORTY, BY VIRTUE OF REV.
STAT. SEC. 3466, 31 U.S.C. SEC. 191, FOR PAYMENT FROM AN INSOLVENT
DEBTOR'S ESTATE OF FEDERAL INSURANCE CONTRIBUTION TAXES UNDER TITLE 8
AND UNEMPLOYMENT COMPENSATION TAXES UNDER TITLE 9 OF THE SOCIAL
SECURITY ACT, 49 STAT. 620, AS AGAINST A STATE'S CLAIM FOR UNEMPLOYMENT
COMPENSATION TAXES IMPOSED BY ITS STATUTE CONFORMING TO THE FEDERAL
ACT'S REQUIREMENTS.  THE CAMPBELL CASE, WHICH WAS REARGUED ON OTHER
ISSUES, RESTED ON THIS RULING FOR DISPOSITION OF THE COMMON ISSUE
CONCERNING THE EFFECT OF SEC. 3466. 

THE FACTS ARE SUBSTANTIALLY IDENTICAL WITH THOSE IN ILLINOIS V.
UNITED STATES,  FN1  EXCEPT IN TWO RESPECTS.  ONE IS THAT THE FUND
AVAILABLE HERE FOR DISTRIBUTION IS MORE THAN SUFFICIENT TO PAY EITHER
THE TITLE 8 OR THE TITLE 9 TAXES, THOUGH INADEQUATE TO PAY BOTH, WHILE
IN ILLINOIS V. UNITED STATES THE FUND WAS NOT LARGE ENOUGH TO SATISFY
EITHER TAX IN FULL.  HERE TOO THE DEBTOR'S ASSIGNEE HAS PAID TO THE
COMMONWEALTH THE FULL AMOUNT OF ITS CLAIM,  FN2  WHILE IN THE ILLINOIS
CASES THE FUND REMAINED IN THE ASSIGNEE'S HANDS FOR DISTRIBUTION. 

THE DISTRICT COURT SUSTAINED THE FEDERAL PRIORITY FOR CAPITAL STOCK
AND TITLE 8 TAXES IN FULL, AND FOR 10 PER CENT OF THE TITLE 9 CLAIM. 
IT THEREFORE DEFERRED PAYMENT OF ANY PART OF THE STATE'S CLAIM UNTIL
THOSE CLAIMS WERE FULLY PAID.  BUT THE COURT HELD THE UNITED STATES NOT
ENTITLED TO PRIORITY FOR THE REMAINING 90 PER CENT OF THE TITLE 9
CLAIM, ON THE GROUND THAT TITLE 9, SEC. 902,  FN3  GIVES THE ASSIGNEE
"THE ALTERNATIVE RIGHT" TO PAY THAT AMOUNT TO AN APPROVED STATE
UNEMPLOYMENT FUND.  ACCORDINGLY THE JUDGMENT ORDERED MASSACHUSETTS TO
PAY OVER TO THE UNITED STATES, FROM THE $803.72 RECEIVED FROM THE
ASSIGNEE, SUFFICIENT FUNDS TO SATISFY IN FULL THE FEDERAL PRIORITIES
SUSTAINED, AND TO RETAIN THE SMALL BALANCE REMAINING AFTER MAKING THOSE
PAYMENTS TO APPLY ON ITS CLAIM FOR 90 PER CENT OF THE TITLE 9 TAXES. 
65 F.SUPP.  763.  THIS ACTION WAS TAKEN IN THE VIEW THAT, WHILE OUR
PREVIOUS DECISIONS HAD SUSTAINED THE FEDERAL PRIORITY FOR THE CAPITAL
STOCK AND TITLE 8 TAXES, THEY HAD NOT DETERMINED THE QUESTION FOR TITLE
9 CLAIMS.  FN4 

HOWEVER, ON APPEAL BY BOTH PARTIES, THE CIRCUIT COURT OF APPEALS HELD
THE UNITED STATES ENTITLED, UNDER THE ILLINOIS RULINGS, TO PRIORITY FOR
THE FULL AMOUNT OF ALL ITS CLAIMS, INCLUDING THE TITLE 9 TAXES.  THAT
COURT THEREFORE AFFIRMED THE DISTRICT COURT'S JUDGMENT EXCEPT INSOFAR
AS IT DENIED THE GOVERNMENT'S TITLE 9 CLAIM.  AS TO THIS IT REVERSED
THE DISTRICT COURT'S RULING.  160 F.2D 614. 

BECAUSE OF THE OBVIOUS CONFUSION CONCERNING THE EFFECTS OF OUR PRIOR
DECISIONS AND THE ASSERTED DIFFERENCES BETWEEN THIS CASE AND THE
ILLINOIS CASES, CERTIORARI WAS GRANTED.  332 U.S. 754. 

                                  I. 

MASSACHUSETTS SEEKS TO RETAIN THE ENTIRE $803.72 SHE HAS RECEIVED, IN
PRIORITY TO ALL THE FEDERAL CLAIMS.  SHE AGREES WITH THE DISTRICT COURT
THAT SEC. 902 GIVES THE TAXPAYER AN "OPTIONAL RIGHT" OF PAYMENT, BUT
DOES NOT ACCEPT ITS ALLOCATION CREATING PRIORITIES FOR ALL FEDERAL
CLAIMS EXCEPT 90 PER CENT OF THE TITLE 9 TAXES.  TO SUSTAIN THIS BROAD
CLAIM WOULD REQUIRE REVERSAL OF BOTH OF THE ILLINOIS DECISIONS.  IN NO
OTHER WAY, ON THE FACTS, COULD MASSACHUSETTS RETAIN THE WHOLE AMOUNT
SHE WAS PAID.  FN5 

ILLINOIS AS AMICUS CURIAE TAKES A NARROWER POSITION, CONCEDING THAT
THE ILLINOIS CASES STAND AS DECISIVE ADJUDICATIONS OF PRIORITY FOR
TITLE 8 TAXES BUT DISPUTING THAT EFFECT FOR TITLE 9 CLAIMS.  FN6  THIS
POSITION SEEKS AN ALLOCATION PAYING THE STATE'S CLAIM AFTER THE TITLE 8
AND OTHER FEDERAL CLAIMS, INCLUDING 10 PER CENT OF THE TITLE 9 TAXES,
BUT BEFORE OR RATHER IN "SATISFACTION" OF THE REMAINING 90 PER CENT OF
THEM.  FN7 

NOTWITHSTANDING THEIR SUBSTANTIAL DIFFERENCES, THE TWO STATES REST
THEIR RESPECTIVE POSITIONS ON THE SAME BASIC ARGUMENTS, WHICH UPON
EXAMINATION TURN OUT TO BE IDENTICAL WITH THOSE VIGOROUSLY PRESENTED BY
ILLINOIS IN THE EARLIER CASES, EXCEPT FOR WORDING AND DETAIL.  MUCH IS
MADE OF THE FACT THAT HERE THE DEBTOR'S ASSIGNEE HAS PAID TO THE
COMMONWEALTH THE FULL AMOUNT OF ITS CLAIM, WHILE IN ILLINOIS V. UNITED
STATES THE FUND REMAINED IN THE ASSIGNEE'S HANDS.  BOTH STATES URGE
THAT SEC. 902 GIVES THE TAXPAYER, AND HERE HIS ASSIGNEE, THE "OPTIONAL
RIGHT" OF PAYMENT TO THE STATE.  MOREOVER, WITH RESPECT TO THE
REQUIREMENT OF REV. STAT. SEC. 3466 THAT "THE DEBTS DUE TO THE UNITED
STATES SHALL BE FIRST SATISFIED," IT IS SAID THAT PAYMENT TO THE STATE
WITH RESULTING CREDIT TO THE UNITED STATES FOR 90 PER CENT OF THE TITLE
9 CLAIM "SATISFIES" THE GOVERNMENT'S DEBT AS MUCH AS PAYMENT TO IT IN
CASH. 

IN THE ILLINOIS CASES THE FOUNDATION FOR THE STATE'S CLAIM TO BE PAID
IN PREFERENCE TO ANY OF THE FEDERAL CLAIMS LAY IN THE CREDIT PROVISION
OF SEC. 902, WHICH IS THE IDENTICAL PROVISION FOR "OPTIONAL PAYMENT." 
THERE WAS NO QUESTION WHATEVER THAT SEC. 902 GAVE THE TAXPAYER THE
"ALTERNATE RIGHT."  BUT THE PRECISE ISSUE IN BOTH CASES WAS WHETHER
THAT RIGHT HAD BEEN CUT OFF BY REV. STAT. SEC. 3466 WHEN HE BECAME
INSOLVENT. 

OBVIOUSLY THERE COULD HAVE BEEN BUT LITTLE POINT OR EFFECT TO OUR
DECISIONS IF, DESPITE THEM, THE ASSIGNEE COULD HAVE TURNED AROUND
IMMEDIATELY AND DEPRIVED THE GOVERNMENT OF THE PRIORITIES ESTABLISHED
SIMPLY BY EXERCISING A RIGHT TO MAKE THE OPTIONAL PAYMENT TO THE
STATE.  NOR WOULD THE DECISIONS HAVE BEEN MUCH MORE SENSIBLE OR
EFFECTIVE, HAD THEY PURPORTED TO SUSTAIN THE FEDERAL PRIORITIES WHEN
THE ASSIGNEE HAS RETAINED THE FUND, BUT TO DISALLOW THEM IF HE HAS PAID
THE STATE BEFORE THE FEDERAL CLAIMS ARE FILED.  WE MADE NO SUCH
INEFFECTIVE OR CAPRICIOUS RULINGS.  THE DECISION WAS BROADLY THAT BY
INTERVENTION OF THE INSOLVENCY AND THE CONSEQUENT BRINGING OF REV.
STAT. SEC. 3466 INTO PLAY, THE TAXPAYER'S RIGHT TO PAY THE STATE AND
TAKE FEDERAL CREDIT HAD BEEN CUT OFF.  FN8 

OUR DECISIONS WENT TO THE MERITS OF THAT RIGHT WND NOT MERELY TO RULE
THAT THE STATE WAS NOT A PROPER PARTY TO ENFORCE ITS EXERCISE.  THE
TAXES DUE THE UNITED STATES WERE HELD TO BE DEBTS; AND BY VIRTUE OF
SEC. 3466 THE DEBTOR'S PRIOR OBLIGATION ATTACHING AS OF THE DATE OF HIS
INSOLVENCY WAS TO THE GOVERNMENT, NOT TO THE STATE.  IT FOLLOWED
NECESSARILY THAT THE ASSIGNEE COULD NOT "SATISFY" IT BY PAYING THE
STATE AND GIVING THE GOVERNMENT "CREDIT."  THIS WAS THE VERY QUESTION
AT ISSUE AND THE ONE ADJUDICATED.  THE "ALTERNATE RIGHT" CONTENTION AND
THE ONE THAT "SATISFIED" IN SEC. 3466 MEANS "CREDIT" ARE ONLY VERBAL
REDRESSINGS OF THE BASIC ISSUE DECIDED IN THE ILLINOIS CASES. 

   II. 

THIS IS AS TRUE OF THE ARGUMENT'S BEARING ON ILLINOIS' NARROWER
POSITION AS IT IS FOR MASSACHUSETTS' BROADER ONE.  BUT ILLINOIS,
APPARENTLY WITH MASSACHUSETTS' SUPPORT, BRINGS FORWARD TO SUSTAIN THE
LESS SWEEPING ATTACK THE ADDITIONAL CONTENTION THAT THE ILLINOIS
DECISIONS DID NOT ADJUDICATE TITLE 9 PRIORITY, ALTHOUGH PURPORTING TO
DO SO.  MOREOVER, THE FACTS PRESENT THIS NARROWER ISSUE OF
DISTINGUISHING BETWEEN TITLE 9 AND OTHER FEDERAL CLAIMS IN SHARPER
FACTUAL FOCUS THAN DID THE ILLINOIS CASES.  FOR IF THE CAPITAL STOCK
AND TITLE 8 CLAIMS ARE FIRST PAID IN FULL, AS THE DISTRICT COURT
REQUIRED, A SMALL BALANCE OF THE FUND WILL REMAIN, TO BE APPLIED EITHER
IN PART PAYMENT OF THE FEDERAL TITLE 9 CLAIM OR IN SOME FORM OF
ALLOCATION BETWEEN IT AND MASSACHUSETTS' CLAIM.  THIS WAS NOT TRUE OF
ILLINOIS V. UNITED STATES, OR INDEED OF ILLINOIS V. CAMPBELL, IN THE
POSTURE IN WHICH THAT CASE WAS BROUGHT HERE. 

THE PRINCIPAL ARGUMENT IS THAT THE TITLE 9 TAXES, THOUGH LITIGATED IN
THE ILLINOIS COURTS, WERE NOT INVOLVED ON THE FACTS IN THE ILLINOIS
CASES AS THEY CAME TO AND WERE DECIDED BY THIS COURT.  HENCE IT IS SAID
WE DID NOT ACQUIRE JURISDICTION OVER THE TITLE 9 CLAIMS.  THE ARGUMENT
IS CORRECT CONCERNING ILLINOIS V. CAMPBELL.  FN9  BUT IT IS SURPRISING
AS APPLIED TO ILLINOIS V. UNITED STATES, IN VIEW OF THE STATE SUPREME
COURT'S ADVERSE DECISION ON THE TITLE 9 ISSUE; ILLINOIS' EXPLICIT
APPLICATION FOR CERTIORARI ON THAT ISSUE AND ARGUMENT ON THE MERITS
HERE TO REVERSE THE STATE COURT'S DECISION; FN10  THE NECESSITY ON THE
FACTS FOR THE STATE TO BRING THE QUESTION UP AND SECURE REVERSAL IN
ORDER TO ESTABLISH ITS CLAIM; FN11  AND FINALLY OUR OPINION'S CLEAR AND
EXPLICIT TERMS, INDEED EMPHASIS, IN DECIDING THE TITLE 9 ISSUE,
TOGETHER WITH THE TITLE 8 ONE, AGAINST ILLINOIS.  FN12 

THE IDEA THAT THE STATE COURT DECIDED ONLY THE TITLE 8 ISSUE
COMPLETELY MISCONCEIVES ITS ACTION, AND SERVES ONLY TO CONFUSE THE
JUDGMENT IN THAT CASE WITH THE ONE IN ILLINOIS V. CAMPBELL.  INDEED IT
SEEKS TO INFUSE INTO THE FORMER THE LATTER'S DENIAL OF TITLE 9
PRIORITY.  NOT ONLY IS THIS WHOLLY INCOMPATIBLE WITH ILLINOIS' EARLIER
POSITION; IT IGNORES THE FACT THAT THE STATE COURT DISPOSED OF THE
TITLE 9 ISSUE IN BOTH CASES, BUT IN OPPOSITE WAYS ON ENTIRELY DIFFERENT
FACTS AND LEGAL ISSUES. 

IN ILLINOIS V. CAMPBELL, THE STATE COURT DID NOT REACH THE BASIC
QUESTION OF THE FORCE OF REV. STAT. SEC. 3466 TO CREATE PRIORITY FOR
FEDERAL TITLE 9 CLAIMS; RATHER, IT EXPRESSLY AVOIDED DECIDING THAT
QUESTION.  391 ILL. 29, 32.  THIS WAS BECAUSE THE INSOLVENT'S ASSETS
WERE IN THE HANDS OF A COURT-APPOINTED RECEIVER, ID. 31, AND IN THAT
SITUATION SEC. 602(B) OF THE REVENUE ACT OF 1943, 58 STAT. 77,  FN13
EXPRESSLY ALLOWED THE RECEIVER TO PAY THE STATE AND TAKE CREDIT UP TO
90 PER CENT OF THE TITLE 9 TAX.  THE ILLINOIS SUPREME COURT EXPRESSLY
SO HELD, AND ON THIS GROUND ALONE DENIED THE FEDERAL TITLE 9 CLAIM. 
391 ILL. 29, 34.  THE EFFECT WAS TO RULE THAT SEC. 602(B) CREATED A
LEGISLATIVE EXCEPTION TO SEC. 3466, LIMITED TO PAYMENTS BY SUCH
RECEIVERS, WITHIN THE TIMES AND FOR THE TAX PERIODS SPECIFIED, UP TO 90
PER CENT OF THE TITLE 9 TAXES.  FN14 

BUT SEC. 602(B) DID NOT APPLY IN ILLINOIS V. UNITED STATES, BECAUSE
THE INSOLVENT'S ASSETS WERE HELD BY A COMMON-LAW ASSIGNEE, NOT A COURT
APPOINTED OFFICIAL.  FN15  SO HOLDING, 391 ILL. AT 37, THE ILLINOIS
COURT WENT ON TO RULE THAT THE FEDERAL CLAIMS FOR TITLE 8 AND TITLE 9
TAXES WERE DEBTS WITHIN THE MEANING OF SEC. 3466 AND WERE THEREFORE
ENTITLED TO PRIORITY OVER THE STATE'S CLAIM.  IT NOT ONLY REJECTED THE
ARGUMENT THAT THE CREDIT PROVISION OF TITLE 9, SEC. 902, MADE THAT
CLAIM "IN REALITY A CLAIM OF THE NATION  ...  TANTAMOUNT TO A CLAIM OF
THE UNITED STATES," FN16  BUT ALSO CAREFULLY GUARDED THE WORDING OF THE
OPINION'S DISPOSITIVE PARAGRAPHS  FN17  AND THE DIRECTIONS GIVEN THE
TRIAL COURT FOR ENTERING THE JUDGMENTS ON REMAND SO AS TO DIFFERENTIATE
THE TWO CASES AND TO AVOID ANY DIRECTION THAT THE FUND IN ILLINOIS V.
UNITED STATES APPLY ON ONLY ONE OF THE FEDERAL CLAIMS.  FN18  THE
JUDGMENT THUS LEFT THE UNITED STATES FREE TO APPLY IT IN PARTIAL
SATISFACTION OF EITHER CLAIM OR BOTH. 

THIS WAS ALSO THE EFFECT OF OUR OWN DECISION AND JUDGMENT.  IT
GENERALLY AND WITHOUT DISTINCTION BETWEEN THE TITLE 8 AND TITLE 9
CLAIMS ADJUDICATED PRIORITY FOR BOTH.  AS IN THE ILLINOIS COURT'S
DECISION, NO RESTRICTION WAS PLACED UPON ALLOCATION OF THE FUND, NOR IS
ANY HINT TO BE FOUND IN THE OPINION THAT SUCH AN ALLOCATION WAS
INTENDED.  INDEED WE WERE NOT ASKED TO MAKE ONE AND TO HAVE DONE SO
WOULD HAVE DISREGARDED THE BASIC POSITION OF BOTH PARTIES, EACH OF
WHICH SOUGHT A FULL AND FAVORABLE DISPOSITION OF THE CONTROVERSY
INCLUDING DECISION UPON ALL THE ISSUES PRESENTED.  FN19 

IT IS TRUE THAT, AS IN THE ILLINOIS SUPREME COURT, THE DECISION AND
JUDGMENT COULD HAVE BEEN MADE ON THE NARROWER BASIS THAT THE TITLE 8
CLAIM WAS MORE THAN SUFFICIENT TO EXHAUST THE FUND, AND THEREFORE TO
SUSTAIN THE PRIORITY FOR THAT CLAIM ALONE WOULD DISPOSE OF THE CASE. 
BUT THIS WOULD HAVE BEEN EQUALLY TRUE OF THE TITLE 9 CLAIM.  NEITHER
CLAIM WAS EITHER MORE OR LESS ESSENTIAL TO DECISION THAN THE OTHER,
INDEED DECISION UPON BOTH WAS NECESSARY TO A JUDGMENT FAVORABLE TO
ILLINOIS.  TO HAVE ELIMINATED EITHER WOULD HAVE REQUIRED SOME
INDICATION OF THAT PURPOSE.  SINCE NONE WAS GIVEN, IT CANNOT BE SAID
THAT THE JUDGMENT RESTED ON THE ONE GROUND OR CLAIM MORE THAN THE
OTHER.    WHILE THEREFORE THE CASE IS ONE WHICH MIGHT HAVE BEEN DECIDED
ON EITHER OF TWO INDEPENDENT GROUNDS FAVORABLY TO THE GOVERNMENT, IT IS
NEITHER ONE IN WHICH THAT COURSE WAS FOLLOWED NOR ONE WHICH COULD HAVE
BEEN DETERMINED THE OPPOSITE WAY IN THAT MANNER.  INSTEAD, AS WE WERE
ASKED TO DO AND RIGHTLY COULD DO ON THE RECORD AND THE ISSUES, WE
DECIDED BOTH ISSUES, AND THE JUDGMENT RESTED AS MUCH UPON THE ONE
DETERMINATION AS THE OTHER.  IN SUCH A CASE THE ADJUDICATION IS
EFFECTIVE FOR BOTH.  UNITED STATES V. TITLE INS. CO., 265 U.S. 472;
UNION PACIFIC CO. V. MASON CITY CO., 199 U.S. 160; SEE RICHMOND CO. V.
UNITED STATES, 275 U.S. 331, 340. 

                                 III.  FINALLY, IT IS URGED THAT IN
ILLINOIS V. UNITED STATES WE HAD NO OCCASION TO CONSIDER AND HENCE OUR
OPINION DID NOT DISCUSS WHETHER IN A CASE LIKE THIS, WHERE THE FUND IS
MORE THAN SUFFICIENT TO PAY ALL FEDERAL CLAIMS EXCEPT 100 PER CENT OF
THE TITLE 9 CLAIM, THE BALANCE REMAINING AFTER PAYING THOSE OTHER
CLAIMS MUST GO FIRST TO PAY THE FEDERAL TITLE 9 CLAIM IN FULL, OR MAY
BE ALLOCATED BETWEEN THAT CLAIM AND THE STATE CLAIM TO PAY 10 PER CENT
OF THE FEDERAL CLAIM FIRST AND THEN TO APPLY WHAT REMAINS ON THE STATE
CLAIM.  FN20 

CLOSELY RELATED TO THIS, THOUGH NOT INVOLVED ON THE FACTS IN ILLINOIS
V. UNITED STATES OR HERE, FN21  IS THE GOVERNMENT'S APPARENT CONCESSION
THAT IF ALL THE FEDERAL CLAIMS ARE PAID IN FULL, INCLUDING 100 PER CENT
OF THE TITLE 9 CLAIM, AND ANY BALANCE THEN REMAINS IN THE FUND, THE
INSOLVENT TAXPAYER IS NEVERTHELESS GIVEN THE RIGHT BY SEC. 902 TO PAY
THAT BALANCE TO THE STATE AND RECEIVE CREDIT ON HIS FEDERAL TITLE 9
TAX.  IN SUCH A CASE, IT IS SAID, THE GOVERNMENT WOULD BE OVERPAID ON
TITLE 9 TAXES AND OBLIGATED TO REFUND THE EXCESS.  THEN THE TAXPAYER
COULD APPLY THE AMOUNT RECEIVED IN FURTHER PAYMENT OF THE STATE CLAIM,
WITH CORRESPONDING FEDERAL CREDIT, OVERPAYMENT AND REFUND, ONLY TO
START THE CYCLE AGAIN AND REPEAT IT UNTIL HE HAD PAID THE STATE ITS
CLAIM IN FULL AND RECEIVED THE ENTIRE 90 PER CENT CREDIT.  FN22  HENCE
IN THIS SITUATION, IT IS SAID, SHORT-CUT DISTRIBUTION MIGHT WELL BE
MADE TO THE STATE IN THE FIRST PLACE, TO ELIMINATE THE CYCLE. 

THE EFFECT OF THE CONCESSION, IF IT IS VALID, GOES FAR TOWARD CUTTING
THE GROUND FROM BENEATH THE GOVERNMENT'S BASIC POSITION.  FN23  THAT
EFFECT IS HEIGHTENED BY THE FURTHER SURPRISING STATEMENT IN ITS BRIEF
THAT IN A CASE LIKE THIS, NOT COVERED BY THE CONCESSION, COMPLIANCE
WITH THE CREDIT CONDITIONS OF SEC. 902 BECOMES IMPOSSIBLE "NOT BECAUSE
BECAUSE THE TERMS OF SECTION 902 ITSELF DENY IT (CREDIT) WHERE NO
PAYMENT CAN BE MADE."  THE STATEMENT WOULD BE UNDERSTANDABLE, IF IT HAD
BEEN THAT SEC. 3466 AND SEC. 902 BOTH WORK TO DENY THE CREDIT IN THIS
SITUATION.  BUT TO SAY THAT SEC. 3466 HAS NO EFFECT TO CUT OFF THE
RIGHT TO CREDIT EITHER IN THE PRESENT SITUATION OR IN THE DIFFERENT
HYPOTHETICAL ONE STATED IS TO TAKE AWAY THE BASIC GROUNDING OF ALL
FEDERAL PRIORITY AS AGAINST THE STATE'S CLAIM. 

THE CONCESSIONS CANNOT BE ACCEPTED.  IN THE FIRST PLACE, THE EFFECT
OF SEC. 3466 DEPENDS ON THE FACT OF INSOLVENCY, NOT ON THE DEGREE OF IT
AS THE FIRST CONCESSION SEEMS TO CONTEMPLATE.  AND IT IS ONLY BY FORCE
OF SEC. 3466 THAT THE GOVERNMENT HAS ANY PRIORITY AT ALL.  SECTION 902
MAY WORK TO DENY CREDIT, IF ITS CONDITIONS FOR CREDIT ARE NOT
FULFILLED.  BUT IT DOES NOT GIVE FEDERAL PRIORITY OVER VALID STATE
CLAIMS.  MOREOVER, BOTH CONCESSIONS ARE ALTOGETHER INCONSISTENT WITH
THE BASIC DECISIONS IN THE ILLINOIS CASES AND THE GROUNDS ON WHICH THEY
RESTED.  THE MATTER REQUIRES BRIEF RESTATEMENT.  IT IS ONE WHICH GOES
FUNDAMENTALLY TO THE EFFECT OF REV. STAT. SEC. 3466, AS DISTINGUISHED
FROM, THOUGH NOT UNRELATED TO, SEC. 902 OF THE SOCIAL SECURITY ACT. 
THESE OF COURSE ARE ENTIRELY DISTINCT STATUTES, WITH DIFFERENT
FUNCTIONS. 

REV. STAT. SEC. 3466 GIVES PRIORITY EXPLICITLY FOR "DEBTS DUE TO THE
UNITED STATES" AND THE PRIORITY GIVEN IS IN TERMS ABSOLUTE, NOT
CONDITIONAL.  ONCE ATTACHING, IT IS FINAL AND CONCLUSIVE.  A LONG LINE
OF DECISIONS HAS HELD THAT TAXES DUE THE GOVERNMENT ARE "DEBTS" WITHIN
THE MEANING OF THE SECTION.  FN24  IN THE ILLINOIS CASES WE APPLIED
THIS RULING TO TITLE 8 AND TITLE 9 TAXES AS AGAINST THE STATE'S CLAIM
FOR "CONTRIBUTIONS."  PRIOR DECISIONS ALSO HAVE HELD THAT THE PRIORITY
ATTACHES AS OF THE TIME OF THE INSOLVENCY,  FN25  A RULING ALSO APPLIED
IN THE ILLINOIS CASES. 

BUT IF CREDIT CAN BE TAKEN AFTER SEC. 3466 ATTACHES, I.E., AFTER
INSOLVENCY, EFFECTIVE TO SET ASIDE THE FEDERAL PRIORITY UP TO 90 PER
CENT OF THE TITLE 9 CLAIM, THE PRIORITY TO THAT EXTENT BECOMES
CONDITIONAL, NOT ABSOLUTE.  ITS EFFECTIVENESS THEN BECOMES CONTINGENT
UPON THE HAPPENING OF SUBSEQUENT EVENTS, NAMELY, THE CONCURRENCE OF THE
CONDITIONS OF SEC. 902 FOR PAYING THE STATE AND TAKING THE CREDIT
TOGETHER WITH THE TAXPAYER'S ELECTION TO DO THIS.  IN SHORT, SEC. 3466
NEVER CONCLUSIVELY ATTACHED AND SEC. 902 WORKS RETROACTIVELY ON
OCCURRENCE OF THOSE CONTINGENCIES TO UPSET THE PRIORITY. 

A FURTHER EFFECT MIGHT BE TO MAKE THE STATUTE APPLICABLE BEYOND THE
SCOPE OF THE TERM "DEBTS DUE TO THE UNITED STATES."  FOR IF THE
TAXPAYER'S SUBSEQUENT ELECTION CAN DESTROY THE PRIORITY RETROACTIVELY,
NOT ONLY THE PRIORITY BUT THE "DEBT" ITSELF BECOMES CONTINGENT.  AND IT
IS AT LEAST DOUBTFUL ON THE STATUTE'S WORDING THAT OBLIGATIONS WHOLLY
CONTINGENT FOR ULTIMATE MATURITY AND OBLIGATION UPON THE HAPPENING OF
EVENTS AFTER INSOLVENCY CAN BE SAID TO FALL WITHIN THE REACH OF "DEBTS
DUE" AS OF THE TIME OF INSOLVENCY.  FN26 

HOWEVER THIS MAY BE, WE KNOW OF NO PREVIOUS APPLICATION OF SEC. 3466
CREATING SUCH A CONDITIONAL PRIORITY.  FN27  NOR DO WE SEE HOW ONE
COULD BE MADE CONSISTENTLY WITH THE SECTION'S TERMS OR PURPOSES.  THE
ONLY SUCH CONSISTENT APPLICATION WOULD SEEM TO BE ONE GIVING THE
GOVERNMENT THE PRIOR AND INDEFEASIBLE RIGHT TO TAKE THE FUND AVAILABLE,
UP TO THE AMOUNT NECESSARY TO PAY ITS CLAIM AS OF THE DATE THE PRIORITY
ATTACHES, NOT AS IT MAY BE AFFECTED BY LATER CONTINGENCIES OTHER THAN
PAYMENT.  FN28  IN ENACTING SEC. 3466 CONGRESS GAVE NO INDICATION
WHATEVER OF INTENT TO CREATE DEFEASIBLE PRIORITIES. 

THE DEFEASANCE CONCEDED POSSIBLE BY THE GOVERNMENT, THEREFORE,
TOGETHER WITH THE FURTHER CONCEDED INEFFECTIVENESS OF SEC. 3466(THOUGH
NOT OF SEC. 902) IN CIRCUMSTANCES LIKE THESE TO DENY THE RIGHT TO
CREDIT, DESTROYS THE FUNDAMENTAL CHARACTER OF THE PRIORITY CREATED BY
SEC. 3466 AND THEREBY REMOVES THE FOUNDATION FROM THE GOVERNMENT'S
BASIC POSITION, WHICH IS THAT SEC. 3466 APPLIES AS OF THE TIME OF
INSOLVENCY TO CREATE THE PRIORITY IT CONTEMPLATES.  THROUGH THESE
CONCESSIONS THE SECTION IS MADE, BY VIRTUE OF THE EFFECT OF SEC. 902,
TO CREATE ONLY A DEFEASIBLE FEDERAL PRIORITY AS AGAINST CLAIMS FOR
CREDIT.  THIS ACTUALLY IS BUT ANOTHER WAY OF MAKING SEC. 902 EFFECTIVE
AS AN EXCEPTION TO REV. STAT. SEC. 3466, LIKE SEC. 602(A) AND (B) OF
THE REVENUE ACT OF 1943, NOTED ABOVE IN PART II. 

THIS OF COURSE WAS ILLINOIS' EARLIER POSITION, REJECTED BY THIS
COURT.  IF THAT POSITION IS NOW TO BE ACCEPTED, WE DO NOT SEE HOW SEC.
3466 CAN BE REGARDED AS APPLYING TO TITLE 9 TAXES OR, INDEED, HOW THE
EFFECT OF TREATING SEC. 902 AS AN EXCEPTION CAN BE LIMITED TO TITLE 9
TAXES.  FOR IF SEC. 902 WORKS AS AN EXCEPTION TO SEC. 3466, THEN
ILLINOIS WAS RIGHT IN THE FIRST PLACE, AND THE EXCEPTION WOULD SEEM TO
APPLY TO ALL FEDERAL TAXES, NOT JUST THE ONE.  FN29 

ACCORDINGLY, THE GOVERNMENT'S CONCESSIONS CANNOT BE ACCEPTED AS
CONSISTENT EITHER WITH OUR PRIOR DECISIONS OR WITH ITS OWN BASIC
POSITION IN THE ILLINOIS CASES AND THIS ONE.  THAT POSITION, APART FROM
THE CONCESSIONS, RESTS ULTIMATELY ON SEC. 3466 AND ITS APPLICABILITY TO
THESE CLAIMS.  THIS NECESSARILY DENIES THAT SEC. 902 CREATES AN
EXCEPTION TO SEC. 3466 OR A QUALIFICATION INCONSISTENT WITH ITS TERMS. 
THE QUALIFICATIONS NOW CONCEDED ARE NOT CONSISTENT WITH THOSE TERMS,
FOR THEY DO NOT CONTEMPLATE THE TENUOUS, DESTRUCTIBLE SORT OF
"PRIORITY" THE CONCESSIONS INVOLVE. 

MOREOVER, THE FACT THAT IN ILLINOIS V. UNITED STATES WE DID NOT
DISCUSS EXPRESSLY THE 10-90 PER CENT DISTRIBUTION OF TITLE 9 TAXES NOW
SUGGESTED DOES NOT MEAN THAT OUR DECISION DID NOT ENCOMPASS THAT
POSSIBILITY.  IT EXTENDED GENERALLY TO ALL CASES WHERE CREDIT IS SOUGHT
AFTER INSOLVENCY.  IT WAS FEDERAL PRIORITY ATTACHING AS OF THE TIME OF
INSOLVENCY THAT WE ADJUDICATED, NOT SOMETHING LESS.  AS WE HAVE
INDICATED, IN MAKING THE ADJUDICATION WE NEITHER WERE NOR COULD HAVE
BEEN IGNORANT OF SEC. 902'S ALLOWANCE OF THE TAXPAYER'S ELECTION.  OUR
DECISION HELD THAT RIGHT CUT OFF BY THE INCIDENCE OF SEC. 3466 AT THE
TIME OF INSOLVENCY.  ANY OTHER WOULD HAVE BEEN WHOLLY INCONSISTENT WITH
THE RULING THAT SEC. 3466 APPLIES AS AGAINST THE STATE'S CLAIM FOR
"CONTRIBUTIONS" OR THE TAXPAYER'S RIGHT TO MAKE THEM AFTER THE
INCIDENCE OF HIS INSOLVENCY. 

                    IV. 

WE HAVE TAKEN PAINS TO STATE THE EFFECT OF OUR PREVIOUS DECISIONS,
BECAUSE OF THE CONFUSION CONCERNING THEM AND THE FACT THAT TWO STATES
HAVE EARNESTLY PRESENTED THE QUESTIONS.  ORDINARILY THIS WOULD END THE
MATTER.  BUT, AGAIN FOR THOSE REASONS, WE TURN BRIEFLY TO THE MERITS
AND TO THE QUESTION WHETHER THE ILLINOIS DECISIONS SHOULD NOW BE
REVERSED. 

APART FROM THE ARGUMENTS ALREADY DISCUSSED, TWO STAND OUT AS REASONS
FOR THE CHANGE SOUGHT.  BOTH REITERATE CONTENTIONS REJECTED IN THE
ILLINOIS CASES.  THE PRIMARY ONE IS THAT THE OBJECTS OF THE LEGISLATION
WILL BE DEFEATED UNLESS THE CHANGE IS MADE, NAMELY, THE ENCOURAGEMENT
OF THE STATE SYSTEMS AND CORRESPONDINGLY OF TAXPAYERS TO MAKE
"CONTRIBUTIONS" TO STATE FUNDS, THEREBY INSURING THAT THE MONEYS SO
PAID IN WILL GO OUT FOR UNEMPLOYMENT BENEFITS RATHER THAN INTO THE
TREASURY AS REVENUE.  THE SECOND IS A HEIGHTENED EMPHASIS ON THE
SUBSEQUENT AMENDMENTS TO SEC. 902 AS SHOWING CONGRESS' INTENT TO WAIVE,
IN PROGRESSIVELY BROADENING SCOPE THOUGH STILL ONLY IN SPECIFIED
SITUATIONS, THE ORIGINAL LIMITATIONS OF SEC. 902 UPON SECURING CREDIT. 
FN30 

FROM THE SECOND CONTENTION IS DRAWN THE CONCLUSION THAT CONGRESS, BY
ITS CAREFULLY, EVEN METICULOUSLY DRAWN RELAXATIONS, MEANT CREDIT TO BE
GIVEN NOT ONLY IN THE CIRCUMSTANCES SO CAREFULLY PRESCRIBED BUT ALSO IN
OTHER SITUATIONS NOT WITHIN THOSE PRESCRIPTIONS.  THIS CONCLUSION WHEN
ADDED TO THE FIRST ARGUMENT AMOUNTS IN SUM TO REITERATING THAT THE
STATE EXACTION IS "TANTAMOUNT TO A CLAIM OF THE UNITED STATES," AND
THAT NOT TO DISREGARD THE TAX AND CREDIT STRUCTURE IN WHICH CONGRESS
MOLDED THE ACT WOULD BE TO "OBSERVE THE FORM AND IGNORE THE SUBSTANCE
OF THE LEGISLATION." 

WE SHALL NOT REPEAT THE ANSWERS MADE IN ILLINOIS V. UNITED STATES,
EXCEPT TO SAY THAT "WHILE THE STATE AND FEDERAL GOVERNMENTS WERE TO
COOPERATE, THE UNDERLYING PHILOSOPHY OF THE FEDERAL ACT WAS TO KEEP THE
STATE AND FEDERAL SYSTEMS SEPARATELY ADMINISTERED."  328 U.S. 8, 11. 
TO THE CONSIDERATIONS THERE STATED, HOWEVER, WE NOW ADD THE FOLLOWING
ONES, NOT EXPRESSLY MENTIONED IN THE EARLIER OPINION, PREFACED HOWEVER
WITH THE OBSERVATION THAT THE GROUNDING OF EACH PLEA FOR REVERSAL
AFFORDS BASIS FOR CONCLUSION AGAINST THAT ACTION AS WELL AS IN ITS
FAVOR. 

THUS THE MANY RELAXATIONS WHICH CONGRESS HAS MADE RESPECTING THE
CONDITIONS PERMITTED FOR TAKING CREDIT, BY FORCE OF THEIR VERY NUMBER
AND CAREFUL LIMITATION, SHOW THAT CONGRESS WAS NOT OFFERING A BROADSIDE
EXEMPTION TO BE APPLIED IN SITUATIONS, SUCH AS THIS CASE, OTHER THAN
THOSE SPECIFICALLY DEFINED.  FN31  RATHER THE INTENTION DISCLOSED IS TO
LIMIT THE CREDIT TO THE PRECISE SITUATIONS SPECIFIED FOR ALLOWING IT.
THAT VIEW ACCORDS WITH CONGRESS' DELIBERATE CHOICE OF THE TAX AND
CONDITIONAL CREDIT DEVICES FOR FRAMING THE ACT'S STRUCTURE.  THESE ARE
WELL-KNOWN TECHNIQUES, ADOPTED APPARENTLY IN THIS INSTANCE FOR
CONSTITUTIONAL AS WELL AS ADMINISTRATIVE REASONS.  FN32  BUT THOSE VERY
MOTIVATIONS WARN US TO BE WARY OF DISREGARDING THE FORM WHICH CONGRESS
HAS CHOSEN ADVISEDLY, IN ORDER TO SUBSTITUTE A SUBSTANCE WE CAN ONLY BE
DOUBTFUL IT MAY HAVE INTENDED.  FN33 

BUT IT IS SAID THAT IF PAYMENT TO THE STATE IS NOT ALLOWED AND THE
RIGHT TO RECEIVE CREDIT IS CUT OFF, THE MONEY WILL NOT BE PAID OUT IN
UNEMPLOYMENT BENEFITS BUT WILL GO INTO THE TREASURY AS GENERAL REVENUE;
THE STATES WILL BE COMPELLED TO MAKE PAYMENTS TO THE INSOLVENT'S
EMPLOYEES; AND THUS THE PRIMARY PURPOSES OF THE ACT WILL BE DEFEATED. 
THERE ARE SEVERAL ANSWERS. 

ONE IS THAT CONGRESS HAS GUARANTEED THE SOLVENCY OF THE STATE FUNDS
AND, IF NEED BE, THE REVENUES THUS PAID INTO THE TREASURY WILL BE
AVAILABLE FOR THAT PURPOSE.  FN34  MOREOVER, BUT ESPECIALLY IN VIEW OF
THIS GUARANTY, IT MAY BE MORE LIKELY THAT THE FUNDS, IF PAID INTO THE
TREASURY RATHER THAN TO THE STATE, WILL BE SAVED FOR APPLICATION TO THE
ACT'S PURPOSES.  FOR THERE IS NO ASSURANCE, IF THE STATE'S PRIOR RIGHT
TO THEM IS ONCE ESTABLISHED, THAT THEY WILL GO FOR THE PAYMENT OF
UNEMPLOYMENT BENEFITS. 

IT MUST BE REMEMBERED THAT WE ARE DEALING WITH AN INSOLVENT'S
ASSETS.  AND THE STATES HAVE STATUTES BY WHICH SUCH ASSETS ARE
DISTRIBUTED ACCORDING TO LOCAL PRIORITIES WHENEVER SEC. 3466 IS NOT
OPERATIVE.  ONLY A FEW OF THEM PLACE UNEMPLOYMENT BENEFITS AT THE TOP. 
FN35  DEPENDING THEREFORE UPON THE NUMBER AND THE AMOUNTS OF CLAIMS
STANDING AHEAD OF THE UNEMPLOYMENT BENEFIT CLAIMS IN THE PARTICULAR
STATE WOULD BE THE CERTAINTY OR PROBABILITY OF PAYMENT OF THE LATTER. 
IN SHORT, REVERSING OUR DECISIONS AND CONCEDING THE VALIDITY OF THE
STATE'S POSITION, EITHER AS TO TITLE 9 TAXES ALONE OR AS TO ALL FEDERAL
TAXES, WOULD GIVE NO DEFINITE AND CERTAIN ASSURANCE THAT THE FUNDS THUS
ACQUIRED BY THE STATES WOULD GO TO SATISFY THE ACT'S PURPOSES.  FN36
IN MANY CASES PAYMENT TO THE STATE WOULD BE THE MEANS OF DIVERTING THEM
TO WHOLLY EXTRANEOUS OBJECTS.  ESPECIALLY WOULD THIS BE TRUE WHEN
SMALLER EMPLOYERS WITHIN THE ACT'S TERMS ARE INVOLVED, AS THEY SEEM TO
BE MUCH MORE OFTEN THAN OTHERS.  FN37  IN THE ABSENCE OF ANY EXPLICIT
OR CLEARLY IMPLIED DIRECTION WE DO NOT BELIEVE THAT CONGRESS INTENDED
TO REQUIRE THAT THE STATE'S CLAIM FOR UNEMPLOYMENT CONTRIBUTIONS TAKE
PRECEDENCE OVER ALL OTHER DEBTS OF THE INSOLVENT OR TO AUTHORIZE US TO
MAKE THIS A CONDITION OF ALLOWING PAYMENT TO THE STATE TO BE MADE FROM
HIS ESTATE.  THERE WAS NO EVIDENT PURPOSE THUS BROADLY TO UPSET STATE
SCHEMES OF PRIORITY.    THESE EXAMPLES ARE ENOUGH TO SHOW THAT THE
PREMISES OF THE STATES' CONTENTIONS ARE CAPABLE OF SUPPORTING OTHER
CONCLUSIONS THAN THEY DRAW FROM THEM.  OTHER EXAMPLES MIGHT BE STATED. 
BUT IN EACH INSTANCE THE INFERENCES DRAWN BY THE STATES ARE
COUNTERBALANCED WITH OPPOSING ONES QUITE OR NEARLY AS TENABLE.  IN SOME
THEY ARE OF GREATER WEIGHT. 

IT FOLLOWS THAT MASSACHUSETTS AND ILLINOIS HAVE NOT SHOWN THE CLEAR
INCONSISTENCY BETWEEN THE ACT'S EXPLICIT TERMS AND OUR PREVIOUS
DECISIONS, ON THE ONE HAND, AND ACHIEVING THE ACT'S PURPOSES, ON THE
OTHER, WHICH IS NECESSARY TO MAKE OUT A CASE FOR REVERSAL AND THUS FOR
NEGATING THE FORCE OF REV. STAT. SEC. 3466 AS CREATING FEDERAL
PRIORITIES FOR TITLE 9 OR OTHER FEDERAL TAX CLAIMS.  THE ILLINOIS
DECISIONS WERE ADVISEDLY MADE, AFTER FULL DELIBERATION.  THERE WAS NO
DISSENT ON THE BASIC QUESTION OF PRIORITY, EVEN THOUGH THE ISSUE SEEMED
CLOSE.  NO SUBSTANTIALLY NEW ARGUMENT OR CONSIDERATION OF POLICY HAS
BEEN PUT FORWARD.  THE CASE FOR REVERSAL IS NO MORE CLEAR OR CONVINCING
THAN ILLINOIS' POSITION ON THE MERITS IN THE EARLIER LITIGATION. 

NOR ARE WE PERSUADED THAT OUR FORMER DECISIONS WERE ERRONEOUS.  FOR
THE STRICT POLICY OF SEC. 3466 HAD PERMITTED FEW EXCEPTIONS  FN38  AND,
AS WE REPEATED IN ILLINOIS V. UNITED STATES, QUOTING UNITED STATES V.
EMORY, 314 U.S. 423, 433, "ONLY THE PLAINEST INCONSISTENCY WOULD
WARRANT OUR FINDING AN IMPLIED EXCEPTION TO THE OPERATION OF SO CLEAR A
COMMAND AS THAT OF SEC. 3466."  328 U.S. 8, 12.  SEE ALSO UNITED STATES
V. REMUND, 330 U.S. 539, 544-545.  THERE IS NO SUCH INCONSISTENCY
HERE. 

UNTIL THE FEDERAL CLAIMS FOR TAXES, WHETHER UNDER TITLE 8, TITLE 9 OR
OTHER TAXING PROVISION, ARE PAID IN FULL, THE STATES ARE NOT ENTITLED
EITHER TO COLLECT OR TO RETAIN ANY PART OF THE INSOLVENT DEBTOR'S
ASSETS.  WE DO NOT ANTICIPATE THAT ANY OF THE STATE UNEMPLOYMENT
INSURANCE PROGRAMS WILL FAIL OR BE SERIOUSLY IMPAIRED BY REASON OF THIS
DECISION, OR THEIR CONSEQUENT FAILURE TO SECURE THE SMALL SUMS
CHARACTERISTICALLY AT STAKE IN THIS EXTENDED LITIGATION AND,
APPARENTLY, IN OTHER CASES MOST LIKELY TO PRODUCE SIMILAR CONTROVERSY. 
NOR WOULD THE FEDERAL TREASURY HAVE BEEN RENDERED BANKRUPT BY A
CONTRARY RESULT. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  HERE, AS IN THAT CASE, THE DEBTOR MADE A COMMON-LAW ASSIGNMENT
FOR THE BENEFIT OF CREDITORS.  THE ASSIGNEE HERE REALIZED $1,135.11
FROM SALE OF THE ASSETS.  THE CLAIM OF THE UNITED STATES FOR TITLE 9
TAXES AMOUNTED TO $963.08; FOR TITLE 8 TAXES, $690.05; AND FOR CAPITAL
STOCK TAXES, $21.  THE COMMONWEALTH'S CLAIM WAS FOR $803.72 IN
UNEMPLOYMENT TAXES.  WITHIN THE TIME ALLOWED, BUT FOR INTERVENTION OF
THE INSOLVENCY, THE ASSIGNEE PAID THE STATE'S CLAIM IN FULL AND THEN
PAID THE REMAINING ASSETS OF $331.39 TO THE COLLECTOR.  HE APPLIED THIS
SUM ON ACCOUNT OF THE TITLE 8 TAXES, THUS LEAVING UNPAID THE FEDERAL
CLAIMS FOR CAPITAL STOCK AND TITLE 9 TAXES AS WELL AS $358.66 PLUS
INTEREST ON THE TITLE 8 CLAIM. 

FN2  THE COMMONWEALTH IN EFFECT HAS UNDERTAKEN TO INDEMNIFY THE
ASSIGNEE, BY PAYING OVER TO THE UNITED STATES THE $803.72, IF THE
PAYMENT TO THE STATE SHOULD TURN OUT TO HAVE BEEN ERRONEOUSLY MADE. 
THE UNITED STATES HAS AGREED THAT IF IT PREVAILS THE JUDGMENT SHALL BE
LIMITED TO $803.72. 

FN3  THE ORIGINAL SEC. 902, 49 STAT. 639, PROVIDED THAT THE TAXPAYER
MIGHT CREDIT AGAINST TITLE 9 TAXES 90 PER CENT OF HIS CONTRIBUTIONS
UNDER AN APPROVED STATE PROGRAM.  SUBSEQUENT AMENDMENTS DID NOT ALTER
THE CONCEPTION OF A BASIC 90 PER CENT CREDIT.  SEE, E.G., NOTES 13,
15.  THE PRESENT "CREDIT AGAINST TAX" SECTION IS INCORPORATED IN THE
INTERNAL REVENUE CODE, 26 U.S.C. SEC. 1601. 

FN4  THE DISTRICT COURT THOUGHT THAT IN ILLINOIS V. UNITED STATES,
THE TITLE 9 ISSUE HAD BECOME MOOT EITHER BEFORE OR AS OF THE TIME THE
CASE REACHED THIS COURT, AND THAT THEREFORE WE "HAD NO OCCASION TO
CONSIDER THE PROBLEM WHETHER AS TO 90 PER CENT OF THE AMOUNT DUE FOR
TITLE IX TAXES THE UNITED STATES (BY SEC. 902) HAD NOT GIVEN THE
TAXPAYER THE OPTION TO MAKE PAYMENT TO ILLINOIS INSTEAD OF TO THE
UNITED STATES."  65 F.SUPP.  763, 765.  THE COURT THUS REGARDED THE
TITLE 9 QUESTION AS LEFT OPEN AND "NICELY ANALYZED  ...  TO BE ONE NOT
OF PRIORITY BUT OF ALTERNATIVE OBLIGATION."  ID. AT 764. 

FN5  SINCE THE INSOLVENT'S ASSETS ARE NOT LARGE ENOUGH TO PAY EITHER
THE TITLE 8 OR THE TITLE 9 CLAIM AND LEAVE ENOUGH TO PAY THE STATE
CLAIM IN FULL.  SEE NOTE 1. 

IN THE BRIEF MASSACHUSETTS STATES THE FEDERAL QUESTION AS BEING
WHETHER THE ASSIGNEE MAY "MAKE PAYMENT OF THE STATE UNEMPLOYMENT TAX TO
THE EXCLUSION OF THE FEDERAL GOVERNMENT CLAIM FOR TITLE IX TAXES OR ANY
OTHER TAXES DUE THE FEDERAL GOVERNMENT FROM THE TAXPAYER?" 

FN6  ILLINOIS HAS APPEARED WITH LEAVE, BOTH BY BRIEF AND IN THE ORAL
ARGUMENT.  IT NEITHER EXPRESSLY DISCLAIMS NOR EXPRESSLY SUPPORTS
MASSACHUSETTS' BROAD POSITION FOR REVERSAL.  FN7  ON THE FACTS, SEE
NOTE 1, AFTER PAYING THE CAPITAL STOCK CLAIM, THE TITLE 8 CLAIM AND 10
PER CENT OF THE TITLE 9 CLAIM, THIS WOULD LEAVE $327.75 TO APPLY ON THE
STATE'S CLAIM; AND HENCE REQUIRE MASSACHUSETTS TO PAY OVER TO THE
UNITED STATES $475.97 PLUS INTEREST FROM THE $803.72 SHE HAS RECEIVED,
IN ORDER TO COMPLETE THE PAYMENT IN FULL OF THE TITLE 8 CLAIM. 

ACTUALLY THIS REPRESENTS THE DISTRICT COURT'S SPECIFIC ALLOCATION,
NOT EXACTLY THAT OF EITHER MASSACHUSETTS OR ILLINOIS.  EACH WOULD APPLY
A SOMEWHAT DIFFERENT METHOD OF ALLOCATION.  SEE NOTE 20. 

FN8  SEE PART III.  THE FEDERAL PRIORITY UNDER SEC. 3466 ATTACHES
FROM THE TIME THE INSOLVENT DEBTOR TRANSFERS OR LOSES CONTROL OVER HIS
PROPERTY.  ILLINOIS V. CAMPBELL, 329 U.S. 362, 370; UNITED STATES V.
WADDILL CO., 323 U.S. 353, 355-358; UNITED STATES V. OKLAHOMA, 261 U.S.
253, 260. 

FN9  THE STATE SUPREME COURT'S JUDGMENT HAD SUSTAINED THE FEDERAL
PRIORITY FOR TITLE 8 TAXES, ORDERING THEM PAID FIRST AND THE SMALL
REMAINING BALANCE OF ABOUT $150 TO BE PAID TO THE STATE.  THIS LEFT THE
TITLE 9 TAXES UNPAID.  THE COURT DENIED PRIORITY FOR THAT CLAIM BECAUSE
IT FELL WITHIN THE EXPLICIT EXCEPTION OF SEC. 602(B) OF THE REVENUE ACT
OF 1943.  SEE TEXT INFRA AT NOTES 13, 14.  THE GOVERNMENT'S FAILURE TO
APPLY FOR CERTIORARI AS TO THE $150 ELIMINATED THE TITLE 9 ISSUE FROM
THE CASE IN THIS COURT. 

FN10  ILLINOIS ALMOST UNIFORMLY PUT THE ISSUES AS INVOLVING TITLE 8
AND TITLE 9 TAXES INDISCRIMINATELY.  THUS, IN STATING "THE QUESTIONS
PRESENTED," THE PETITION FOR CERTIORARI SPOKE OF PRIORITY FOR "SOCIAL
SECURITY EXCISE TAXES AND CAPITAL STOCK TAXES," NECESSARILY
ENCOMPASSING TITLE 8 AND TITLE 9 LEVIES.  THIS WAS REPEATEDLY TRUE OF
THE STATE'S BRIEF.  FURTHER, THE PETITION AT ONE POINT SAID:  "IN
HOLDING THAT THE CLAIM OF THE PETITIONER WAS SUBORDINATE TO THE CLAIMS
OF THE UNITED STATES FOR CAPITAL STOCK TAX AND FOR TAXES ARISING UNDER
TITLES VIII AND IX OF THE SOCIAL SECURITY ACT, THE SUPREME COURT OF
ILLINOIS LOOKED TO FORM, NOT SUBSTANCE, AND DISREGARDED THE CHARACTER
AND SIGNIFICANCE OF PETITIONER'S CLAIM."  THE GOVERNMENT'S BRIEFS WERE
EQUALLY POSITIVE IN SEEKING DISPOSITION OF THE TITLE 9 CLAIM. 

FN11  THE FEDERAL CLAIMS ASSERTED WERE AS FOLLOWS:  CAPITAL STOCK
TAXES, $58.73; TITLE 8 TAXES, $1,065.52; TITLE 9 TAXES, $1,284.36; ALL
PLUS INTEREST FROM THE DATE DUE.  THE ILLINOIS CLAIM FOR STATE
UNEMPLOYMENT COMPENSATION CONTRIBUTIONS WAS $721.29.  AND THE FUND
AVAILABLE TO SATISFY ALL THESE CLAIMS WAS $1,010.81. 

SINCE THE ASSETS WERE INSUFFICIENT TO PAY IN FULL EITHER THE TITLE 8
OR THE TITLE 9 CLAIM, ILLINOIS HAD TO OVERRIDE BOTH TO ESTABLISH HER
CLAIM.  ILLINOIS RECOGNIZED THIS BOTH BY HER APPLICATION FOR REVIEW AND
BY THE BROAD ARGUMENT THAT THE STATE CLAIM WAS TANTAMOUNT TO A FEDERAL
TAX AND THE CREDIT PROVISIONS OF SEC. 902 EXEMPTED IT COMPLETELY FROM
THE PRIORITY OF REV. STAT. SEC. 3466 FOR ALL FEDERAL TAXES, NOT SIMPLY
ONE. 

FN12  THE OPINION IN ILLINOIS V. UNITED STATES EXPLICITLY STATED:
"THE CLAIM OF THE UNITED STATES IS FOR FEDERAL UNEMPLOYMENT
COMPENSATION TAXES UNDER TITLE 9 AND FEDERAL INSURANCE CONTRIBUTIONS
TAXES UNDER TITLE 8 OF THE SOCIAL SECURITY ACT, 49 STAT. 620."  328
U.S. 8, 9.  THE OPINION THROUGHOUT TREATED TITLE 9 TAXES ON A PARITY
WITH THOSE UNDER TITLE 8.  WE ACCEPTED FULLY THE STATE'S VIEW THAT THE
CREDIT OR "OPTIONAL PAYMENT" PROVISION OF SEC. 902 WAS DESIGNED TO
STIMULATE THE CREATION OF SOUND STATE SYSTEMS.  328 U.S. 8, 10.  SEE
ILLINOIS V. CAMPBELL, 329 U.S. 362, 367, N. 5.  BUT WE REJECTED THE
ARGUMENT THAT THE STATE CLAIM WAS TANTAMOUNT TO A FEDERAL ONE AND SAID:
"BUT WE CANNOT AGREE THAT CONGRESS THEREBY INTENDED IN EFFECT TO AMEND
SEC. 3466, BY MAKING ITS PRIORITY PROVISIONS INAPPLICABLE TO STATE
UNEMPLOYMENT TAX CLAIMS."  328 U.S. 8, 11.  THE RULING APPLIED TO BOTH
TYPES OF TAX WITHOUT DISTINCTION. 

FN13  THIS SECTION WAS ONE OF THE RELAXING AMENDMENTS, SEE PART IV,
TO TITLE 9, SEC. 902, OF THE SOCIAL SECURITY ACT.  FOR TITLE 9 TAXES
DUE FOR THE YEARS 1939, 1940, 1941 AND 1942 IT ALLOWED CREDIT UP TO 90
PER CENT, WITHOUT REGARD TO PREVIOUS FAILURE TO PAY AS REQUIRED, IF THE
ASSETS OF THE DEBTOR HAD BEEN, DURING THE PERIOD SPECIFIED, "IN THE
CUSTODY OR CONTROL OF A RECEIVER, TRUSTEE, OR OTHER FIDUCIARY APPOINTED
BY, OR UNDER THE CONTROL OF, A COURT OF COMPETENT JURISDICTION." 

RELAXATION OF SEC. 902, FOR TITLE 9 TAXES DUE FOR THE YEARS 1936, 1937
AND 1938, WITH CREDIT LIMITED HOWEVER TO 81 PER CENT, WHEN THE STATE
PAYMENTS FOR THOSE YEARS WERE MADE AFTER DECEMBER 6, 1940.  THIS
STATES REJECTED BY THE ILLINOIS COURT.  SEE NOTE 15. 

FN14  SEE ALSO PART IV.  THE COURT, HOWEVER, IN GIVING DIRECTIONS FOR
THE DECREE TO BE ENTERED BY THE TRIAL COURT ORDERED THE FEDERAL TITLE 8
CLAIM PAID FIRST IN FULL "AND ANY BALANCE REMAINING" TO THE STATE.  391
ILL. AT 46; SEE ALSO ID. 42.  THUS APPARENTLY IT INADVERTENTLY LOST
SIGHT OF THE FACT, EARLIER EXPRESSLY NOTED, ID. 34, 39, THAT SEC.
602(B) ALLOWED THE RECEIVER TO TAKE CREDIT ONLY UP TO 90 PER CENT OF
THE TITLE 9 TAXES. 

THIS OVERSIGHT SEEMINGLY WAS RESPONSIBLE FOR THE COURT'S FAILURE TO
AWARD PRIORITY TO THE UNITED STATES FOR 10 PER CENT OF ITS TITLE 9
CLAIM, FROM THE SMALL BALANCE REMAINING AFTER PAYING THE TITLE 8
TAXES.  CF. NOTE 9.  HAD THIS AMOUNT, SOME $128, ALSO BEEN AWARDED TO
THE UNITED STATES, ROUGHLY ONLY $22 WOULD HAVE BEEN LEFT FOR THE
STATE.  THE OPINION GAVE NO CONSIDERATION TO THIS QUESTION, AND BY THE
GOVERNMENT'S FAILURE TO APPLY FOR CERTIORARI REGARDING IT WE WERE
PREVENTED FROM CONSIDERING IT. 

FN15  AN ADDITIONAL REASON WAS THAT THE TAXES AGAINST WHICH CREDIT
WAS CLAIMED WERE NOT TAXES FOR THE YEARS TO WHICH SEC. 602(B) EXPRESSLY
LIMITED THE CREDIT IT ALLOWED.  INSTEAD SEC. 602(A) OF THE 1943 ACT,
SEE NOTE 13, ALLOWED CONDITIONAL CREDIT FOR THE TAX YEARS INVOLVED IN
ILLINOIS V. UNITED STATES AND THE STATE SOUGHT TO SECURE IT.  BUT THE
ILLINOIS COURT HELD SEC. 602(A) ALSO INAPPLICABLE ON THE FACTS AND
DENIED THE 81 PER CENT CREDIT BECAUSE THE ASSETS WERE IN THE HANDS OF A
COMMON-LAW ASSIGNEE, NOT IN THE CUSTODY OR CONTROL OF A COURT-APPOINTED
RECEIVER OR OTHER OFFICIAL AS THE SECTION REQUIRED FOR THE CREDIT TO BE
AVAILABLE.  391 ILL. AT 37. 

FN16  391 ILL. AT 39, 40; CF. 328 U.S. AT 11.  THE ILLINOIS COURT
HELD "THE FULL AMOUNT" OF THE PAYROLL (TITLE 9) TAXES TO BE "TAXES DUE
THE FEDERAL GOVERNMENT."  IN THE FIRST INSTANCE, IT SAID, THIS WAS TRUE
OF "100 PER CENT OF THE TAXES LEVIED," WHICH "CONTINUES TO BE TAXES DUE
THE FEDERAL GOVERNMENT EITHER UNTIL IT IS ALL PAID TO THE FEDERAL
GOVERNMENT, OR 90 PER CENT IS PAID TO THE STATE AND THE BALANCE TO THE
FEDERAL GOVERNMENT."  THE PROVISIONS FOR CREDIT, THE OPINION CONTINUED,
"DO NOT CHANGE THE CHARACTER OF THE TAXES IMPOSED.  THEY ARE STILL
TAXES DUE THE FEDERAL GOVERNMENT AND CONSTITUTE A DEBT DUE TO THE
UNITED STATES WITHIN THE PURVIEW OF SECTION 3466 OF THE REVISED
STATUTES."  ID. 40, 41. 

FN17  391 ILL. 42, 46. 

FN18  IBID.  THE ORDER FOR JUDGMENT IN ILLINOIS V. UNITED STATES
MERELY REVERSED THE TRIAL COURT'S JUDGMENT AND REMANDED THE CAUSE "WITH
DIRECTIONS TO ENTER A DECREE FINDING THAT THE UNITED STATES IS ENTITLED
TO PRIORITY OF PAYMENT TO THE EXTENT OF THE FUNDS ON DEPOSIT, AND
ORDERING DISTRIBUTION ACCORDINGLY."  391 ILL. AT 46.  SEE NOTE 14 FOR
THE DIRECTIONS IN THE CAMPBELL CASE. 

FN19  SEE NOTES 10, 11.  THE CASES WERE OBVIOUSLY TEST CASES DESIGNED
TO SETTLE THE QUESTION OF PRIORITY GENERALLY, I.E., NOT MERELY FOR ONE
BUT FOR ALL FEDERAL TAXES AND THUS PROVIDE A CERTAIN BASIS FOR
ADMINISTRATION OF THE SOCIAL SECURITY ACT IN BOTH ITS INSURANCE AND ITS
UNEMPLOYMENT COMPENSATION FEATURES. 

FN20  CF. THE DISTRICT COURT'S VIEW, NOTE 4 SUPRA; AND NOTE 7. 
ILLINOIS AND MASSACHUSETTS IN FACT URGE DIFFERENT METHODS OF
ALLOCATION, EACH DIFFERING FROM THE ONE APPLIED BY THE DISTRICT COURT. 
FROM THE FUNDS AVAILABLE FOR TITLE 9 DISTRIBUTION, MASSACHUSETTS WOULD
PAY THE STATE CLAIM FIRST AND CORRESPONDINGLY REDUCE THE FEDERAL
CLAIM.  ILLINOIS WOULD MAKE A PRO RATA DISTRIBUTION OF 10 PER CENT OF
THE AVAILABLE FUNDS TO THE FEDERAL GOVERNMENT AND 90 PER CENT TO THE
STATE, WHILE THE DISTRICT COURT WOULD PAY THE FEDERAL 10 PER CENT FIRST
AND APPLY THE BALANCE REMAINING ON THE STATE CLAIM.    FN21  SINCE THE
FUND WAS NOT LARGE ENOUGH IN EITHER CASE TO PAY ALL THE FEDERAL CLAIMS
IN FULL. 

FN22  HYPOTHETICAL EXAMPLES ARE STATED IN THE DISTRICT COURT'S
OPINION, 65 F.SUPP.  763, AND IN THE BRIEFS FILED HERE. 

FN23  POSSIBLY THE CONCESSION WAS INTENDED AS AN ARGUMENTATIVE
ALTERNATIVE TO OTHER AND BROADER POSITIONS.  IN ANY EVENT, WE ARE NOT
BOUND TO ACCEPT IT AS EITHER SOUND OR CONCLUSIVE OF THE LITIGATION.  IT
IS NOT, EVEN IN TERMS, A CONFESSION OF ERROR. 

THESE OBSERVATIONS APPLY EQUALLY TO THE GOVERNMENT'S FURTHER DAMAGING
STATEMENT SET FORTH IN THE SENTENCE FOLLOWING THE ONE TO WHICH THIS
FOOTNOTE IS APPENDED. 

FN24  THE FEDERAL PRIORITY HAS BEEN UNIFORMLY SUSTAINED FOR TAX
CLAIMS.  UNITED STATES V. WADDILL CO., 323 U.S. 353(UNEMPLOYMENT
COMPENSATION TAXES AND A DEBT ARISING OUT OF A FEDERAL HOUSING
ADMINISTRATION TRANSACTION); UNITED STATES V. TEXAS, 314 U.S.
480(GASOLINE TAXES); NEW YORK V. MACLAY, 288 U.S. 290(INCOME TAXES AND
A CLAIM FOR EXPENSES INCURRED IN THE REPLACEMENT OF A BUOY DAMAGED BY
THE INSOLVENT); SPOKANE COUNTY V. UNITED STATES, 279 U.S. 80(INCOME
TAXES AND PENALTIES); PRICE V. UNITED STATES, 269 U.S. 492(INCOME TAXES
AND CUSTOMS DUTIES); STRIPE V. UNITED STATES, 269 U.S. 503(INCOME,
EXCESS PROFITS, AND CAPITAL STOCK TAXES). 

JUDGMENTS RECOVERED BY THE UNITED STATES ALSO ARE DEBTS ENTITLED TO
PRIORITY.  UNITED STATES V. KNOTT, 298 U.S. 544(AGAINST SURETY ON
ESTREATED BAIL BONDS); HUNTER V. UNITED STATES, 5 PET. 173(AGAINST
SURETY). 

OTHER DEBTS FOR WHICH THE GOVERNMENT HAS BEEN HELD TO HAVE PRIORITY
UNDER SEC. 3466 ARE:  UNITED STATES V. REMUND, 330 U.S. 539(EMERGENCY
LOANS MADE BY FARM CREDIT ADMINISTRATION); UNITED STATES V. EMORY, 314
U.S. 423(SUM DUE ON NOTE HELD UNDER THE NATIONAL HOUSING ACT); BRAMWELL
V. U.S. FIDELITY CO., 269 U.S. 483(INDIAN FUNDS DEPOSITED IN BANK);
UNITED STATES V. NATIONAL SURETY CO., 254 U.S. 73(LOSSES WHERE
CONTRACTOR DEFAULTED); BAYNE V. UNITED STATES, 93 U.S.
642(MISAPPROPRIATED ARMY PAYMASTER FUNDS); LEWIS V. UNITED STATES, 92
U.S. 618(FUNDS HELD BY NAVY DISBURSING AGENTS); UNITED STATES V. STATE
BANK OF NORTH CAROLINA, 6 PET. 29(BONDS FOR CUSTOMS DUTIES); UNITED
STATES V. FISHER, 2 CRANCH 358(CLAIM AGAINST ENDORSER OF PROTESTED BILL
OF EXCHANGE). 

FN25  SEE NOTE 8 SUPRA. 

FN26  IT HAS BEEN HELD THAT THE TERM "DEBTS DUE TO THE UNITED STATES"
SHOULD BE CONSTRUED WITH SOME LIBERALITY.  SEE, E.G., PRICE V. UNITED
STATES, 269 U.S. 492, 500; UNITED STATES V. EMORY, 314 U.S. 423, 426. 
AND THERE IS APPARENTLY NO DECISION EXPRESSLY RULING THE MATTERS OF
CONTINGENCY OF THE OBLIGATION OR OF THE PRIORITY UPON SUBSEQUENT EVENTS
NOT CERTAIN.  CF. UNITED STATES V. MARXEN, 307 U.S. 200.  BUT THE FACT
THAT THE PROBLEM HAS NOT SQUARELY ARISEN IN THE LONG HISTORY OF SEC.
3466 AND THAT ALL OF THE DECISIONS SUSTAINING THE PRIORITY WERE FOR
DEBTS CLEARLY DUE AND OWING, ADDS FORCE TO THE CLEAR INFERENCES
IMPLICIT IN THE STATUTE'S WORDING, VIZ., THAT CONGRESS NOT ONLY CREATED
A CONCLUSIVE PRIORITY ATTACHING AS OF THE TIME OF INSOLVENCY BUT IN
DOING SO DREW THE LINE FOR ITS OPERATION CLOSE TO, IF NOT AT, THE
COMMONLY ACCEPTED MEANING OF "DEBT" AS DISTINGUISHED FROM OTHER FORMS
OF OBLIGATION. 

FN27  SEE NOTES 24, 26. 

FN28  AGAIN THE DISTINCTION BETWEEN "PAYMENT" AND "SATISFACTION"
BECOMES PERTINENT.  TO CONSTRUE THE TERM "SATISFIED" IN SEC. 3466 AS
BEING FULFILLED BY TAKING SUBSEQUENT CREDIT, AS THE STATES URGE, WOULD
BE TO QUALIFY THE WORD "DEBTS" SO AS TO MAKE IT INCLUDE CONDITIONAL
OBLIGATIONS. 

FN29  CONGRESS, OF COURSE, COULD PROVIDE FOR FEDERAL PRIORITY AS TO
ALL TAXES EXCEPT TITLE 9 CLAIMS.  BUT, APART FROM THE EXPLICIT
EXCEPTIONS CREATED BY SEC. 602(A) AND (B) OF THE REVENUE ACT OF 1943
WITH REFERENCE TO FUNDS OF INSOLVENTS IN THE HANDS OF COURT-APPOINTED
OFFICIALS, SEE PART II, NOTES 13, 15, CONGRESS HAS NOT DONE SO EITHER
BY ANY WORDING OR INTENT OF REV. STAT. SEC. 3466, NOR IN OUR VIEW BY
SEC. 902 OF THE SOCIAL SECURITY ACT.  WE DO NOT THINK THAT IT INTENDED
TO MAKE THE STATE'S CLAIM SUBJECT TO ALL OTHER FEDERAL TAXES, BUT PRIOR
TO ALL BUT 10 PER CENT OF THE TITLE 9 TAXES.  SEE TEXT INFRA PART IV.
NO INSTANCE HAS BEEN FOUND WHERE SEC. 3466 HAS BEEN APPLIED TO CREATE
SUCH A SELECTIVE PRIORITY AS AMONG FEDERAL CLAIMS QUALIFYING AS "DEBTS"
WITHIN THE MEANING OF SEC. 3466. 

FN30  OF THE SEVERAL AMENDMENTS, NONE IS APPLICABLE TO THIS CASE. 
THE ONLY ONES RELATING EXPRESSLY TO INSOLVENTS' ESTATES ARE THOSE NOTED
IN PART II, SEE NOTES 13, 15 AND TEXT, 31, APPLYING TO PAYMENTS BY
COURT-APPOINTED RECEIVERS, ETC. 

FN31  THUS, AS HAS BEEN NOTED, THE PROVISION FOR PAYMENT AND CREDIT
GIVEN BY THE REVENUE ACT OF 1943, SECS. 602(A)(3) AND (B), 58 STAT. 77,
IS LIMITED TO SITUATIONS WHERE AN INSOLVENT'S ASSETS WERE UNDER THE
CONTROL OF A COURT OR ITS APPOINTED OFFICIAL.  CONGRESS QUITE OBVIOUSLY
HAD THE INSOLVENT TAXPAYER IN MIND.  BUT EVEN SO IT EXCLUDED NON
JUDICIAL CUSTODIANS OF HIS ASSETS BY ITS FAILURE TO EXTEND THE
RELAXATION TO THEM.  THE OMISSION CANNOT BE TAKEN TO HAVE BEEN
UNINTENTIONAL THE NECESSARY EFFECT IN THE ONE CASE WAS TO CREATE A
LEGISLATIVE EXCEPTION TO SEC. 3466, IN THE OTHER TO DENY IT BY THE
WITHHOLDING OF THE LIKE PRIVILEGE.  SO ALSO WITH THE OTHER EASING
AMENDMENTS. 

FN32  CF. STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548. 

FN33  IT IS PRECISELY IN MATTERS WHERE CONGRESS HAS USED THE TAX AND
CREDIT TECHNIQUE THAT DISREGARDING THE FORM CHOSEN OFFERS THE GRAVEST
DANGERS OF PERVERTING A STATUTE'S PURPOSES.  WE THINK THAT POSSIBILITY
IS EQUALLY AS GREAT HERE FROM IGNORING CONGRESS' EXPRESSED INTENT, BOTH
IN LIMITING THE RIGHT OF CREDIT TO DEFINED SITUATIONS AND IN ITS
FAILURE EXPRESSLY TO QUALIFY THE BROAD POLICY OF SEC. 3466, AS WOULD BE
THE OTHER ONE OF REACHING ITS PURPOSE BY GIVING EFFECT TO ITS EXPLICIT
LIMITATIONS. 

FN34  SECTIONS 904 AND 1201 OF THE SOCIAL SECURITY ACT, 58 STAT. 789,
50 U.S.C. APP. (SUPP. V, 1946) SECS. 1666-1667, AS AMENDED, 61 STAT.
793, 794, SECS. 4-5.  SECTION 904 ESTABLISHED A FEDERAL EMPLOYMENT
ACCOUNT IN THE UNITED STATES TREASURY, AND APPROPRIATED THE EXCESS OF
TITLE 9 TAXES OVER UNEMPLOYMENT ADMINISTRATIVE EXPENSES TO SUCH
ACCOUNT.  SECTION 1201 AUTHORIZED LOANS FROM SUCH ACCOUNT TO THE STATES
FOR UNEMPLOYMENT INSURANCE PAYMENTS WHEN A STATE'S UNEMPLOYMENT
INSURANCE FUND BECOMES DANGEROUSLY LOW, REPAYMENT OF SUCH ADVANCES NOT
BEING REQUIRED UNLESS THE STATE FUND REGAINS A STABLE CONDITION.  SEE
S. REP. NO. 477, 80TH CONG., 1ST SESS. 9-10. 

FN35  SEE, E.G., MASS. ANN. LAWS, C. 151A, SEC. 17(1942); CAL. GEN.
LAWS, ACT 8780D, SEC. 46(1944); IOWA CODE, SEC. 96.14(3)(1946); OKLA.
STAT., TIT. 40, SEC. 224(C)(1941). 

FN36  UNLESS IN THIS CASE WE SHOULD UNDERTAKE TO SAY, AS WE HAVE NOT
BEEN ASKED OR AUTHORIZED TO DO, THAT BY IMPLIED FORCE OF SEC. 902,
STATE PRIORITIES ARE RELEGATED TO A POSITION INFERIOR TO THE TAXPAYER'S
RIGHT TO PAY THE STATE AND TAKE FEDERAL CREDIT.  NOTHING IN THE STATUTE
SUGGESTS THAT CONGRESS INTENDED TO GIVE THE TAXPAYER OR THIS COURT THE
POWER THUS TO DISORDER THE STATES' SCHEMES OF PRIORITIES. 

FN37  IF THE LITIGATED CASES, OF WHICH THE ONES THAT HAVE COME HERE
SEEM TO BE TYPICAL, AND COMMON OBSERVATION MAY BE TAKEN AS FAIRLY
ACCURATE BASES FOR JUDGMENT. 

IT IS TRUE THAT IN SOME CASES OF INSOLVENCY THE BUSINESS CONTINUES
WITHOUT BEING WOUND UP.  BUT THIS PERHAPS IS MUCH MORE OFTEN THE CASE
WHEN OPERATION IS CONTINUED UNDER JUDICIAL CONTROL THAN OTHERWISE.  AND
WHEN THAT IS THE SITUATION, INSOFAR AS THE 1943 AMENDMENT APPLIES THE
PAYMENT MAY BE MADE AND CREDIT OBTAINED.  INSOFAR AS IT DOES NOT APPLY
THE AMENDMENT IS A CLEAR MANDATE AGAINST ALLOWING THAT TO BE DONE. 

FN38  THE ORIGINAL DEPARTURES INDEED DID NOT CONTEMPLATE THAT
EXCEPTIONS WERE BEING MADE.  THEY CONCEIVED THAT THE FUNDS OR PROPERTY
AFFECTED, BEING COVERED BY MORTGAGE, BELONGED IN FACT TO THIRD PERSONS,
NOT TO THE INSOLVENT DEBTOR.  THELUSSON V. SMITH, 2 WHEAT.  396, 426;
CONARD V. ATLANTIC INS. CO., 1 PET. 386; BRENT V. BANK OF WASHINGTON,
10 PET. 596, 611; SEE SAVINGS SOCIETY V. MULTNOMAH COUNTY, 169 U.S.
421, 428; CF. UNITED STATES V. FISHER, 2 CRANCH 358; UNITED STATES V.
HOOE, 3 CRANCH 73.  THE COURT HAS BEEN LOATH TO EXPAND THESE
EXCEPTIONS, CF. ILLINOIS V. CAMPBELL, 329 U.S. 362, 370, TO INCLUDE
OTHER TYPES OF LIEN.  THE CLAIMS OF MASSACHUSETTS AND ILLINOIS DO NOT
FALL WITHIN THE SCOPE OF THOSE EXCEPTIONS OR OF OTHERS AS TO WHICH THE
COURT HAS FELT THAT SUBSEQUENT LEGISLATION AUTHORIZED THEM.  CF. COOK
COUNTY NATIONAL BANK V. UNITED STATES, 107 U.S. 445; UNITED STATES V.
GUARANTY TRUST CO., 280 U.S. 478. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
DOUGLAS AND MR. JUSTICE BURTON JOIN, DISSENTING. 

THIS DECISION ANNOUNCES AN UNNECESSARILY RUTHLESS INTERPRETATION OF A
STATUTE THAT AT ITS BEST IS AN ARBITRARY ONE.  THE STATUTE BY WHICH THE
FEDERAL GOVERNMENT GIVES ITS OWN CLAIMS AGAINST AN INSOLVENT PRIORITY
OVER CLAIMS IN FAVOR OF A STATE GOVERNMENT MUST BE APPLIED BY COURTS,
NOT BECAUSE FEDERAL CLAIMS ARE MORE MERITORIOUS OR EQUITABLE, BUT ONLY
BECAUSE THAT GOVERNMENT HAS MORE POWER.  BUT THE PRIORITY STATUTE IS AN
ASSERTION OF FEDERAL SUPREMACY AS AGAINST ANY CONTRARY STATE POLICY. 
IT IS NOT A LIMITATION ON THE FEDERAL GOVERNMENT ITSELF, NOT AN
ASSERTION THAT THE PRIORITY POLICY SHALL PREVAIL OVER ALL OTHER FEDERAL
POLICIES.  ITS GENERALITIES SHOULD NOT LIGHTLY BE CONSTRUED TO
FRUSTRATE A SPECIFIC POLICY EMBODIED IN A LATER FEDERAL STATUTE. 

THE FEDERAL GOVERNMENT HAS SUED TO ENFORCE A PERSONAL LIABILITY
AGAINST ONE WHO, AS ASSIGNEE, PAID TO THE STATE OF MASSACHUSETTS FUNDS
WHICH THE FEDERAL GOVERNMENT CLAIMS BY VIRTUE OF ITS STATUTORY
PRIORITY.  DEFENDANT WAS THE ASSIGNEE OF A SMALL CONCERN UNDER A COMMON
LAW ASSIGNMENT FOR BENEFIT OF CREDITORS.  THE ASSETS DID NOT REALIZE
ENOUGH TO PAY BOTH FEDERAL AND STATE TAX CLAIMS.  THE UNITED STATES
FILED A CLAIM, AMONG OTHER THINGS, FOR 100% OF THE TAXES LAID BY TITLE
9 OF THE SOCIAL SECURITY ACT, WHICH, HOWEVER, PROVIDES FOR A 90% CREDIT
AGAINST THE FEDERAL TAX IF THE AMOUNT HAS BEEN PAID INTO AN APPROVED
STATE UNEMPLOYMENT COMPENSATION FUND.  BELIEVING THAT HE WAS ENTITLED
THEREBY TO PAY THE STATE AND TO CLAIM THE CREDIT AGAINST THE FEDERAL
TAX, THIS ASSIGNEE PAID $803.72 ON THE CLAIM OF MASSACHUSETTS FOR TAXES
UNDER THE MASSACHUSETTS UNEMPLOYMENT COMPENSATION ACT.  THIS IS THE SUM
NOW DEMANDED BY THE FEDERAL GOVERNMENT. 

THE REASONING ON WHICH THE ASSIGNEE IS HELD LIABLE AND THE STATE IS
REQUIRED TO TURN THIS AMOUNT OVER TO THE FEDERAL GOVERNMENT IS THIS:
TRUE SEC. 902 GIVES A 90% CREDIT.  BUT, LITERALLY, IT IS ONLY FOR
ACTUAL PAYMENT TO THE STATE.  ON INSOLVENCY, THE FEDERAL PRIORITY
STATUTE, SO IT IS HELD, INTERVENES AND FREEZES THE FUNDS IN THE
ASSIGNEE'S HANDS SO THAT HE CANNOT PAY THE STATE UNTIL HE HAS FIRST
PAID THE FEDERAL GOVERNMENT.  HENCE, UNLESS HE HAS ENOUGH MONEY TO PAY
BOTH CLAIMS IN FULL, THE PRIORITY STATUTE PREVENTS HIM FROM TAKING THE
CREDIT WHICH THE SOCIAL SECURITY ACT GRANTS HIM, THE FEDERAL GOVERNMENT
COLLECTS A WINDFALL TEN TIMES WHAT WOULD NORMALLY BE ITS DUE, AND THE
STATE GOVERNMENT GETS NOTHING ON ITS TAX CLAIM.  THIS COURT NOW SO
CONSTRUES THE PRIORITY STATUTE AS NOT MERELY TO PREFER NET CLAIMS OF
THE FEDERAL GOVERNMENT, BUT ALSO AS A PROHIBITION AGAINST COURTS
MARSHALING THE ASSETS OF AN INSOLVENT IN AN EQUITABLE MANNER. 

THE DISTRICT JUDGE DECLINED TO SUPPORT THIS HARSH REASONING.  HE IS
ONE WHOSE VIEWS OF THE MEANING OF THE SOCIAL SECURITY ACT ARE ENTITLED
TO GREAT WEIGHT, BECAUSE OF HIS EXPERIENCE WITH IT.  SEE STEWARD
MACHINE CO. V. DAVIS, 301 U.S. 548, AT 553.  HE CONSIDERED THAT AS TO
90% OF THE FEDERAL TAX, THE TAXPAYER IN EFFECT WAS GIVEN AN OPTION TO
PAY IT TO THE APPROVED STATE FUND OR TO THE FEDERAL GOVERNMENT.  HE
SAID: 

"THE FORCE OF THAT ANALYSIS SEEMED TO ME THE MORE PERSUASIVE WHEN THE
TRUE NATURE OF TITLE IX OF THE SOCIAL SECURITY ACT AS PORTRAYED IN
CHARLES C. STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, ...  WAS
STRESSED.  AS TO 90 PER CENT OF THE TAXES UNDER THAT TITLE THE
OBJECTIVE OF CONGRESS WAS NOT TO COLLECT FEDERAL REVENUES BUT TO
STIMULATE THE CREATION OF AND PAYMENT TO STATE UNEMPLOYMENT
COMPENSATION FUNDS.  IT WOULD DEFEAT OBVIOUS CONGRESSIONAL INTENT TO
LAY DOWN A RULE WHICH REQUIRED THAT THIS 90 PER CENT SHOULD GO TO
SATISFY A TITLE IX TAX CLAIM INSTEAD OF GOING TO THE DIRECT BENEFIT OF
CLAIMANTS UNDER STATE UNEMPLOYMENT COMPENSATION PLANS." 

THE CONSEQUENCES OF THIS COURT'S REFUSAL TO FOLLOW HIS REASONING ARE
SO INCONSISTENT WITH THE PURPOSES OF THE SOCIAL SECURITY ACT THAT THEY
COULD NOT HAVE BEEN INTENDED BY A REASONABLE CONGRESS.  WHAT THE COURT
IS DOING PRACTICALLY IS THIS: 

1.  THE COURT IS GIVING THE FEDERAL TREASURY A PAYMENT FROM AN
INSOLVENT TAXPAYER TEN TIMES AS LARGE AS CONGRESS EXACTED FROM A
SOLVENT TAXPAYER UNDER LIKE CIRCUMSTANCES.  THE 90% WAS NEVER
CONTEMPLATED AS FEDERAL REVENUE, BUT CREDIT FOR THAT AMOUNT WAS
INTENDED TO BE AVAILED OF, TO INDUCE STATES TO CREATE UNEMPLOYMENT
COMPENSATION FUNDS AND TO MAINTAIN THEM IN SOLVENT CONDITION. 

2.  THE COURT IS DEPRIVING THE STATE OF A REVENUE CONGRESS NOT ONLY
TRIED TO ASSURE IT, BUT ONE WHICH IT USED THE TAX AND CREDIT DEVICE TO
IMPEL THE STATE TO COLLECT.  SEE STEWARD MACHINE CO. V. DAVIS, 301 U.S.
548. 

3.  THIS UNJUST ENRICHMENT OF THE FEDERAL GOVERNMENT AND THE
DEPLETION OF STATE UNEMPLOYMENT FUNDS IS ACCOMPLISHED BY HOLDING THAT
THE PRIORITY STATUTE PROHIBITS SIMULTANEOUS DISTRIBUTION TO EACH, STATE
AND FEDERAL GOVERNMENT, OF THE NET AMOUNT ACTUALLY DUE, TAKING INTO
ACCOUNT SUCH SIMULTANEOUS PAYMENTS, AND BY REQUIRING INSTEAD THAT THE
TOTAL FEDERAL TAX BE PAID IN FULL AND FIRST IN POINT OF TIME, WHICH IN
THIS CASE DEPLETES THE ESTATE SO THAT THE ASSIGNEE CANNOT THEREAFTER
MAKE THE STATE PAYMENT TO OBTAIN THE FEDERAL CREDIT.  IT SEEMS TO ME
THAT THE FEDERAL PRIORITY STATUTE CANNOT HAVE BEEN INTENDED TO DO MORE
THAN SECURE TO THE FEDERAL GOVERNMENT WHAT BECOMES FAIRLY DUE IT ON A
MARSHALING OF ASSETS AS COURTS OF EQUITY USUALLY DO.    4.  THIS
INTERPRETATION PREJUDICES GENERAL CREDITORS BY PLACING AHEAD OF THEM
$190 OF TAX CLAIMS FOR EVERY $100 ACTUALLY OWING.  FOR EXAMPLE, THE
MAXIMUM TAX FOR BOTH THE STATE AND FEDERAL GOVERNMENTS IS THAT LAID BY
THE FEDERAL ACT - LET US SAY IT AMOUNTS TO $1,000.  IT CAN BE
DISCHARGED BY PAYMENT OF $1,000, $900 PAID TO THE APPROVED STATE FUND
AND $100 TO THE FEDERAL GOVERNMENT.  BUT UNDER THIS RULING THE
INSOLVENT MUST PAY THE $1,000 IN FULL TO THE FEDERAL GOVERNMENT.  THAT,
OF COURSE, LEAVES THE STATE TAX UNDISCHARGED, WHICH CALLS FOR PAYMENT
OF ANOTHER $900 BEFORE ANYTHING CAN BE LEFT FOR THE GENERAL CREDITORS. 
THUS, WHERE AN EQUITABLE MARSHALING OF ASSETS TO PAY JUST CLAIMS WOULD
PUT $1,000 OF TAXES AHEAD OF GENERAL CREDITORS, THE COURT'S RULING PUTS
$1,900 AHEAD OF GENERAL CREDITORS.  THE COURT EVEN GOES SO FAR AS TO
REJECT CONCESSIONS BY THE GOVERNMENT DESIGNED TO MITIGATE, IN THIS
RESPECT AT LEAST, THE HARSHNESS OF THIS RULE. 

THE INTERPRETATION OF THE PRIORITY ACT TO THUS GOUGE THE STATES AND
PRIVATE CREDITORS IS CONTRARY TO THE PURPOSE AND SPIRIT OF THE ACT
ITSELF.  OVER A CENTURY AGO MR. JUSTICE STORY DEFINED THE "MOTIVES OF
PUBLIC POLICY" WHICH UNDERLIE THE PRIORITY STATUTES OF THE FEDERAL
GOVERNMENT TO BE "IN ORDER TO SECURE AN ADEQUATE REVENUE TO SUSTAIN THE
PUBLIC BURTHENS AND DISCHARGE THE PUBLIC DEBTS...."  UNITED STATES V.
STATE BANK OF NORTH CAROLINA (1832), 6 PET. 29, 35.  IT IS OBVIOUS THAT
AS TO THE 90% OF THE SOCIAL SECURITY TAX HERE INVOLVED, IT WAS NOT
CONTEMPLATED AS FEDERAL REVENUE TO MEET FEDERAL BURDENS BUT WAS LAID TO
INDUCE AND TO ENABLE THE STATE TO ASSUME SPECIFIC OBLIGATIONS TO THE
UNEMPLOYED.  THE PRIORITY STATUTE IS NOW INVOKED TO DENY, IN THIS CLASS
OF CASES, THE AID PROMISED IN MEETING THESE OBLIGATIONS. 

WHEN A LATER STATUTE HAS ENACTED A COMPREHENSIVE FEDERAL POLICY IN
ANOTHER FIELD AND CREATED A FEDERAL INTEREST IN THE ADVERSE CLAIMANT'S
SOLVENCY OR FUNCTION, THIS COURT HAS RARELY, AND NEVER UNTIL RECENTLY,
HESITATED TO INTERPRET THE OLD AND GENERAL PRIORITY STATUTE AS YIELDING
TO THE NEWER AND SPECIFIC STATUTORY SCHEME.  COOK COUNTY NATIONAL BANK
V. UNITED STATES, 107 U.S. 445; UNITED STATES V. GUARANTY TRUST CO.,
280 U.S. 478; CF. CALLAHAN V. UNITED STATES, 285 U.S. 515.  SEE ALSO
DISSENT IN UNITED STATES V. EMORY, 314 U.S. 423 AT 433.  THE PROBLEM
HERE IS NOT WHETHER A MERE STATE CLAIM CAN DEFEAT ONE OF THE FEDERAL
GOVERNMENT, BUT WHETHER ONE FEDERAL STATUTE WILL BE SO CONSTRUED AS TO
DEFEAT THE MANIFEST POLICY OF ANOTHER. 

THE COURT'S OPINION, HOWEVER, GOES TO SOME LENGTHS TO SHOW THAT THE
COURT AS A WHOLE AND WITHOUT DISSENT ON THIS POINT HAS BECOME COMMITTED
TO THE INTERPRETATION IT ADOPTS, AND BY UNUSUAL DEFERENCE TO THE
DOCTRINE OF STARE DECISIS DECLARES ITSELF BOUND HAND AND FOOT TO FULL
FEDERAL PRIORITY.  I AM UNABLE TO DETECT THE COMMITMENT WHICH THE COURT
SO CLEARLY SEES.  BUT IF I HAVE AGREED TO ANY PRIOR DECISION WHICH
FORECLOSES WHAT NOW SEEMS TO BE A SENSIBLE CONSTRUCTION OF THIS ACT, I
MUST FRANKLY ADMIT THAT I WAS UNAWARE OF IT.  HOWEVER, NO RIGHTS HAVE
VESTED AND NO PREJUDICIAL ACTION HAS BEEN TAKEN IN RELIANCE UPON SUCH A
RULING.  IT DOES NOT APPEAR TO HAVE BEEN CALLED TO THE ATTENTION OF
CONGRESS AND IN EFFECT APPROVED BY FAILURE TO ACT.  UNDER THESE
CIRCUMSTANCES, EXCEPT FOR ANY PERSONAL HUMILIATION INVOLVED IN
ADMITTING THAT I DO NOT ALWAYS UNDERSTAND THE OPINIONS OF THIS COURT, I
SEE NO REASON WHY I SHOULD BE CONSCIOUSLY WRONG TODAY BECAUSE I WAS
UNCONSCIOUSLY WRONG YESTERDAY. 

I WOULD REVERSE THE JUDGMENT AND ALLOW FEDERAL PRIORITY ONLY SUBJECT
TO THE 90% CREDIT FOR SUMS DISBURSED TO THE STATE ON ACCOUNT OF ITS
UNEMPLOYMENT COMPENSATION TAX. 
..END :












BUTE V. ILLINOIS, 333 U.S. 640 


NO. 398.  ARGUED FEBRUARY 12, 1948.  - DECIDED APRIL 19, 1948.  - 396
ILL. 588, 72 N.E.2D 813, AFFIRMED. 


1.  PETITIONER, A 57-YEAR-OLD MAN, PLEADED GUILTY IN A STATE COURT TO
TWO INDICTMENTS FOR THE NONCAPITAL OFFENSE OF "TAKING INDECENT
LIBERTIES WITH CHILDREN" AND WAS SENTENCED TO PRISON FOR ONE TO 20
YEARS FOR EACH OFFENSE.  THE INDICTMENTS WERE IN SIMPLE LANGUAGE AND
EASY TO UNDERSTAND; AND THERE WAS NO CLAIM THAT PETITIONER FAILED TO
UNDERSTAND THEM OR THAT HE WAS INCAPABLE OF INTELLIGENTLY AND
COMPETENTLY PLEADING GUILTY.  THE RECORDS SHOWED THAT PETITIONER
APPEARED "IN HIS OWN PROPER PERSON" AND THAT, BEFORE ACCEPTING HIS
PLEAS OF GUILTY, THE COURT EXPLAINED THE CONSEQUENCES AND PENALTIES;
BUT THE RECORDS WERE SILENT ON THE SUBJECT OF COUNSEL FOR HIS DEFENSE. 
HELD: 

(A)  IN THE CIRCUMSTANCES OF THIS CASE, SUCH SILENCE IN THE RECORDS
AS TO COUNSEL FOR THE DEFENSE DOES NOT SUFFICE TO INVALIDATE THE
SENTENCES UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
PP. 644, 670-677. 

(B)  IN THE ABSENCE OF ANY SHOWING BEYOND THAT IN THE RECORDS IN THIS
CASE, THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT
REQUIRE THE STATE COURT TO INQUIRE AS TO PETITIONER'S DESIRE TO BE
REPRESENTED BY COUNSEL, HIS ABILITY TO PROCURE COUNSEL, OR HIS DESIRE
TO HAVE COUNSEL ASSIGNED TO HIM; NOR DID IT REQUIRE THE STATE COURT TO
OFFER OR ASSIGN COUNSEL TO HIM.  PP. 644, 670-677. 

2.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT
REQUIRE THE SEVERAL STATES TO CONFORM THE PROCEDURE OF THEIR STATE
CRIMINAL TRIALS TO THE PRECISE PROCEDURE OF THE FEDERAL COURTS, EVEN TO
THE EXTENT THAT THE PROCEDURE OF THE FEDERAL COURTS IS PRESCRIBED BY
THE FEDERAL CONSTITUTION OR BILL OF RIGHTS.  PP. 649, 656. 

3.  IT HAS REFERENCE RATHER TO A STANDARD OF PROCESS THAT MAY COVER
MANY VARIETIES OF PROCESSES THAT ARE EXPRESSIVE OF DIFFERING
COMBINATIONS OF HISTORICAL OR MODERN, LOCAL OR OTHER JURIDICAL
STANDARDS, PROVIDED THEY DO NOT CONFLICT WITH THE "FUNDAMENTAL
PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR
CIVIL AND POLITICAL SITUATIONS."  P. 649. 

4.  IT LEAVES ROOM FOR MUCH OF THE FREEDOM WHICH, UNDER THE
CONSTITUTION AND IN ACCORDANCE WITH ITS PURPOSES, WAS ORIGINALLY
RESERVED TO THE STATES FOR THEIR EXERCISE OF THEIR OWN POLICE POWERS
AND FOR THEIR CONTROL OVER THE PROCEDURE TO BE FOLLOWED IN CRIMINAL
TRIALS IN THEIR RESPECTIVE COURTS IN THE LIGHT OF THEIR RESPECTIVE
HISTORIES AND NEEDS.  PP. 649-653, 663, 675. 

5.  IT IS DESCRIPTIVE OF A BROAD REGULATORY POWER OVER EACH STATE AND
NOT OF A MAJOR TRANSFER BY THE STATES TO THE UNITED STATES OF THE
PRIMARY AND PRE-EXISTING POWER OF THE STATES OVER COURT PROCEDURES IN
STATE CRIMINAL CASES.  P. 653. 

6.  BECAUSE THE CONSTITUTION, DURING NEARLY 80 FORMATIVE YEARS,
PERMITTED EACH STATE TO ESTABLISH, MAINTAIN AND ACCUSTOM ITS PEOPLE TO
ITS OWN FORMS OF "DUE PROCESS OF LAW," A SUBSTANTIAL PRESUMPTION ARISES
IN FAVOR OF, RATHER THAN AGAINST, THE LAWFULNESS OF THOSE PROCEDURES
AND IN FAVOR OF THEIR RIGHT TO CONTINUED RECOGNITION BY THE FEDERAL
GOVERNMENT AS "DUE PROCESS OF LAW."  P. 653. 

7.  WHILE SUCH A PRESUMPTION DOES NOT ARISE IN FAVOR OF ANY PRACTICE
AGAINST WHICH THE FOURTEENTH AMENDMENT WAS PARTICULARLY DIRECTED, THERE
IS NO REASON TO FEEL THAT IT WAS PARTICULARLY DIRECTED AGAINST THE
PRACTICE INVOLVED IN THIS CASE.  PP. 653-654. 

8.  A PROCEDURE FOLLOWED BY A STATE IN CRIMINAL TRIALS SHOULD NOT BE
HELD TO VIOLATE THE STANDARD OF PERMISSIBLE PROCESS OF LAW BROADLY
RECOGNIZED BY THE FOURTEENTH AMENDMENT UNLESS IT VIOLATES "THE VERY
ESSENCE OF A SCHEME OF ORDERED LIBERTY" AND ITS CONTINUANCE WOULD
"VIOLATE A 'PRINCIPLE OF JUSTICE SO ROOTED IN THE TRADITIONS AND
CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS FUNDAMENTAL.'"  P. 659. 

9.  RULE 44 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, PERTAINING TO
THE ASSIGNMENT OF COUNSEL TO DEFENDANTS IN CRIMINAL CASES IN FEDERAL
COURTS, CANNOT BE REGARDED AS DEFINING, EVEN BY ANALOGY, THE MINIMUM
REQUIREMENT OF DUE PROCESS FOR THE STATES UNDER THE FOURTEENTH
AMENDMENT.  PP. 662-663. 

10.  THE FOURTEENTH AMENDMENT DOES NOT AUTHORIZE THIS COURT TO
REQUIRE ALL STATES TO ENFORCE IN SUBSTANCE EITHER RULE 44 OF THE
FEDERAL RULES OF CRIMINAL PROCEDURE OR SEC. 203 OF THE PROPOSED CODE OF
CRIMINAL PROCEDURE RECOMMENDED BY THE AMERICAN LAW INSTITUTE.  P. 665. 

11.  IT IS NOT THE PROVINCE OF THIS COURT TO PRESCRIBE WHICH
PROCEDURE IT CONSIDERS PREFERABLE AMONG MANY PERMISSIBLE PROCEDURES
WHICH COULD BE FOLLOWED BY A STATE COURT IN CONNECTION WITH COUNSEL FOR
THE DEFENSE OF A PARTY ACCUSED OF A STATE CRIME.  P. 670. 

12.  IT IS THE PROVINCE OF THIS COURT TO DECIDE WHETHER THE PRACTICE
FOLLOWED BY A STATE COURT IN A PARTICULAR CASE, ALTHOUGH ADMITTEDLY IN
CONFORMITY WITH STATE LAW, WAS SO CLEARLY AT VARIANCE WITH THE
PROCEDURE CONSTITUTING "DUE PROCESS OF LAW" UNDER THE FOURTEENTH
AMENDMENT THAT THE JUDGMENTS MUST BE COMPLETELY INVALIDATED.  P. 670. 

13.  THE COMMON-LAW RECORD OF A CRIMINAL TRIAL IN A STATE COURT FOR A
NONCAPITAL OFFENSE IS NOT TO BE CONSIDERED UNRELIABLE SOLELY BECAUSE IT
IS ALMOST EXACTLY IN THE LANGUAGE OF THE STATE STATUTE PRESCRIBING THE
PROCEDURE IN SUCH CASES.  P. 670. 

14.  IN PASSING UPON CLAIMS OF DENIAL OF DUE PROCESS OF LAW CONTRARY
TO THE FOURTEENTH AMENDMENT IN STATE CRIMINAL TRIALS, DOUBTS SHOULD BE
RESOLVED IN FAVOR OF THE INTEGRITY, COMPETENCE AND PROPER PERFORMANCE
OF THEIR OFFICIAL DUTIES BY THE JUDGE AND THE STATE'S ATTORNEY LAWFULLY
CHOSEN TO DISCHARGE SERIOUS PUBLIC RESPONSIBILITIES UNDER THEIR OATHS
OF OFFICE.  PP. 671-672. 

15.  IF ANY PRESUMPTION IS TO BE INDULGED AS A RESULT OF SILENCE
REGARDING COUNSEL FOR THE DEFENSE IN THE RECORD OF A STATE CRIMINAL
TRIAL FOR A NONCAPITAL OFFENSE, IT SHOULD BE PRESUMED THAT THE STATE
COURT CONSTITUTIONALLY DISCHARGED, RATHER THAN UNCONSTITUTIONALLY
DISREGARDED, ITS STATE AND FEDERAL DUTIES TO THE DEFENDANT, INCLUDING
THOSE RELATING TO HIS RIGHT, IF ANY, TO THE ASSISTANCE OF COUNSEL.  P.
672. 

16. AFFIRMANCE OF THE SENTENCES BY THE STATE SUPREME COURT
CONCLUSIVELY ESTABLISHED THEIR COMPLIANCE WITH STATE LAW.  P. 668. 

17.  WHILE SUCH A FINDING OF COMPLIANCE WITH STATE LAW IS NOT
NECESSARILY SUFFICIENT TO SATISFY THE REQUIREMENTS OF DUE PROCESS UNDER
THE FOURTEENTH AMENDMENT, IT IS HELPFUL, IN MEASURING COMPLIANCE WITH
THE LATTER, TO KNOW EXACTLY WHAT WERE THE REQUIREMENTS OF STATE LAW. 
PP. 668-670. 

18.  IN VIEW OF THE REQUIREMENTS OF THE STATE STATUTES (QUOTED IN THE
OPINION AT PP. 668-670), THE AFFIRMANCE OF THE SENTENCES BY THE STATE
SUPREME COURT, AND THE ABSENCE OF FINDINGS TO THE CONTRARY, THE SILENCE
OF THE RECORDS IS ADEQUATE GROUND FOR THE MINIMUM CONCLUSION THAT
PETITIONER DID NOT REQUEST COUNSEL AND DID NOT STATE UNDER OATH THAT HE
WAS "UNABLE TO PROCURE COUNSEL."  PP. 672-673. 

19.  IN THE ABSENCE OF ANY REQUEST BY PETITIONER FOR COUNSEL AND IN
THE ABSENCE OF ANY STATEMENT BY HIM THAT HE WAS UNABLE TO PROCURE
COUNSEL, THE COURT DID NOT VIOLATE THE REQUIREMENTS OF DUE PROCESS OF
LAW UNDER THE FOURTEENTH AMENDMENT BY THE PROCEDURE WHICH IT FOLLOWED
AND WHICH ACCORDED WITH THE PROCEDURE APPROVED BY THE STATE FOR
NONCAPITAL CASES SUCH AS THESE.  PP. 673-674. 

20.  IT IS NOT NECESSARY TO CONSIDER WHETHER PETITIONER, BY HIS PLEA
OF GUILTY OR OTHERWISE, AFFIRMATIVELY WAIVED ANY RIGHT TO COUNSEL, FOR
NO CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF COUNSEL HAD ARISEN IN HIS
FAVOR.  P. 673. 

21.  SINCE THE OFFENSES WITH WHICH PETITIONER WAS CHARGED WERE OF A
NONCAPITAL NATURE, THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
IN AND OF ITSELF, DID NOT REQUIRE THE STATE TRIAL COURT IN THE
CIRCUMSTANCES OF THESE CASES TO INITIATE AN INQUIRY INTO HIS DESIRE TO
BE REPRESENTED BY COUNSEL OR INTO HIS ABILITY TO OBTAIN COUNSEL, NOR,
IN THE EVENT OF HIS INABILITY TO OBTAIN COUNSEL, DID IT REQUIRE THE
TRIAL COURT TO ASSIGN COUNSEL TO CONDUCT HIS DEFENSE - THOUGH IT WOULD
HAVE BEEN REQUIRED BOTH BY THE STATE STATUTE AND THE FOURTEENTH
AMENDMENT TO TAKE SOME SUCH STEPS IF HE HAD BEEN CHARGED WITH A CAPITAL
OFFENSE.  P. 674. 

BUTE V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

THE SUPREME COURT OF ILLINOIS AFFIRMED PETITIONER'S CONVICTIONS UNDER
TWO INDICTMENTS FOR THE NONCAPITAL OFFENSE OF "TAKING INDECENT
LIBERTIES WITH CHILDREN."  396 ILL. 588, 72 N.E.2D 813.  THIS COURT
GRANTED CERTIORARI.  332 U.S. 756.  AFFIRMED, P. 677. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

IN THE CIRCUIT COURT OF LA SALLE COUNTY, ILLINOIS, THE PETITIONER,
ROY BUTE, PLEADED GUILTY TO THE CRIME OF "TAKING INDECENT LIBERTIES
WITH CHILDREN" AS CHARGED IN EACH OF TWO INDICTMENTS AND, ON EACH PLEA,
WAS SENTENCED TO CONFINEMENT IN THE ILLINOIS STATE PENITENTIARY FOR NOT
LESS THAN ONE NOR MORE THAN 20 YEARS, THE SENTENCES TO RUN
CONSECUTIVELY.  EACH COMMON LAW RECORD IS SILENT ON THE SUBJECT OF
COUNSEL FOR THE PETITIONER'S DEFENSE.  THE ISSUE HERE IS WHETHER OR NOT
EACH STATE SENTENCE SHALL BE HELD TO HAVE BEEN IMPOSED IN VIOLATION OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES  FN1  BECAUSE EACH COMMON LAW RECORD SHOWS THAT
THE PETITIONER APPEARED "IN HIS OWN PROPER PERSON" AND DOES NOT SHOW
THAT THE COURT INQUIRED AS TO THE PETITIONER'S DESIRE TO BE REPRESENTED
BY COUNSEL, OR HIS ABILITY TO PROCURE COUNSEL, OR HIS DESIRE TO HAVE
COUNSEL ASSIGNED TO HIM TO ASSIST HIM IN HIS DEFENSE, OR THAT SUCH
COUNSEL WAS OFFERED OR ASSIGNED TO HIM.  WE HOLD THAT SUCH A SILENCE IN
THE RESPECTIVE RECORDS DOES NOT SUFFICE TO INVALIDATE THE SENTENCES. 
WE HOLD FURTHER THAT, IN THE ABSENCE OF ANY SHOWING BEYOND THAT IN
THESE RECORDS, THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DID
NOT REQUIRE THE ILLINOIS COURT TO MAKE THE INQUIRIES OR THE OFFER OR
ASSIGNMENT OF COUNSEL NOW CLAIMED TO HAVE BEEN THE RIGHT OF THE
PETITIONER. 

AT THE TIME OF THESE INDICTMENTS, JUNE 17, 1938, THE PETITIONER WAS
57 YEARS OLD.  EACH INDICTMENT, IN ITS FIRST COUNT, CHARGED HIM WITH
TAKING INDECENT LIBERTIES ON MAY 19, 1938, WITH A GIRL UNDER THE AGE OF
15, AND, IN ITS SECOND COUNT, WITH ATTEMPTING TO DO SO.  THE FIRST
INDICTMENT RELATED TO A GIRL OF EIGHT AND THE SECOND TO A GIRL OF 11. 
THE OFFENSES CHARGED WERE VIOLATIONS OF ILL. REV. STAT. C. 38, SEC.
109(1937).  FN2 

THE INTELLIGIBILITY OF THE INDICTMENTS IS EVIDENT FROM THE FOLLOWING
LANGUAGE QUOTED FROM THE FIRST: 

"THAT ROY BUTE LATE OF SAID COUNTY, ON TO WIT:  THE 19TH DAY OF MAY
IN THE YEAR OF OUR LORD ONE THOUSAND NINE HUNDRED AND THIRTY-EIGHT AT
AND WITHIN THE SAID COUNTY OF LA SALLE, THE SAID ROY BUTE BEING A MALE
PERSON OF THE AGE OF SEVENTEEN (17) YEARS AND UPWARDS, DID THEN AND
THERE UNLAWFULLY AND FELONIOUSLY TAKE CERTAIN IMMORAL, IMPROPER AND
INDECENT LIBERTIES WITH A CERTAIN FEMALE CHILD, UNDER THE AGE OF
FIFTEEN (15) YEARS, AND OF THE AGE OF EIGHT (8) YEARS, TO-WIT, ...
WITH INTENT OF AROUSING, APPEALING TO AND GRATIFYING THE LUST, PASSION
AND SEXUAL DESIRES OF HIM THE SAID ROY BUTE CONTRARY TO THE FORM OF THE
STATUTE IN SUCH CASE MADE AND PROVIDED, AND AGAINST THE PEACE AND
DIGNITY OF THE SAME PEOPLE OF THE STATE OF ILLINOIS."  FN3 

THE MATERIAL PORTIONS OF THE RECORDS IN THESE CASES ARE IDENTICAL,
EXCEPT FOR THE NAMES AND AGES OF THE CHILDREN.  THEY CONTAIN ALL THAT
WAS BEFORE THE SUPREME COURT OF ILLINOIS OR THAT IS BEFORE THIS COURT. 
THE FOLLOWING APPEARS IN EACH:

            "ARRAIGNMENT AND PLEA OF GUILTY - JUNE 20, 1938 

"NOW ON THIS DAY COME THE SAID PEOPLE BY TAYLOR E. WILHELM, STATE'S
ATTORNEY, AND THE SAID DEFENDANT IN HIS OWN PROPER PERSON ALSO COMES;
WHEREUPON THE SAID DEFENDANT IS FURNISHED WITH A COPY OF THE
INDICTMENT, A LIST OF WITNESSES AND JURORS HEREIN. 

"AND THE SAID DEFENDANT BEING NOW ARRAIGNED BEFORE THE BAR OF THIS
COURT MOVES THE COURT FOR LEAVE TO ENTER HIS PLEA OF GUILTY OF THE
CRIME OF TAKING INDECENT LIBERTIES WITH CHILDREN IN MANNER AND FORM AS
CHARGED IN THE FIRST COUNT OF THE INDICTMENT HEREIN; AND THE COURT
HAVING ADMONISHED AND EXPLAINED TO THE SAID DEFENDANT THE CONSEQUENCES
AND PENALTIES, WHICH WILL RESULT FROM SAID PLEA, AND THE SAID DEFENDANT
STILL PERSISTING IN HIS DESIRE TO ENTER HIS PLEA OF GUILTY TO THE CRIME
OF TAKING INDECENT LIBERTIES WITH CHILDREN, IN MANNER AND FORM AS
CHARGED IN THE FIRST COUNT OF THE INDICTMENT HEREIN, THE COURT GRANTS
SUCH LEAVE. 

"THEREUPON THE SAID DEFENDANT ENTERS HIS PLEA OF GUILTY OF THE CRIME
OF TAKING INDECENT LIBERTIES WITH CHILDREN, IN MANNER AND FORM AS
CHARGED IN THE FIRST COUNT OF THE INDICTMENT HEREIN. 

"THEREUPON THE COURT FINDS THE AGE OF THE SAID DEFENDANT TO BE FIFTY
SEVEN (57) YEARS. 

                               "JUDGMENT 

"NOW AGAIN ON THIS DAY COME THE SAID PEOPLE BY TAYLOR E. WILHELM,
STATE'S ATTORNEY, AND THE SAID DEFENDANT ROY BUTE, IN HIS OWN PROPER
PERSON ALSO COMES, AND THE SAID DEFENDANT, ROY BUTE, NOT SAYING
ANYTHING FURTHER WHY THE JUDGMENT OF THE COURT SHOULD NOT NOW BE
PRONOUNCED AGAINST HIM ON HIS PLEA OF GUILTY OF THE CRIME OF TAKING
INDECENT LIBERTIES WITH CHILDREN IN MANNER AND FORM AS CHARGED IN THE
FIRST COUNT OF THE INDICTMENT HEREIN, HERETOFORE ENTERED HEREIN. 

"WHEREUPON IT IS ORDERED BY THE COURT THAT THE SAID DEFENDANT, ROY
BUTE, BE AND HE IS HEREBY SENTENCED ON SAID PLEA OF GUILTY AS AFORESAID
TO CONFINEMENT IN THE ILLINOIS STATE PENITENTIARY AT JOLIET FOR A
PERIOD OF NOT LESS THAN ONE (1) YEAR, NOR MORE THAN TWENTY (20)
YEARS." 

IN OCTOBER, 1946, THE PETITIONER, WHILE SERVING HIS SENTENCE IN THE
ILLINOIS STATE PENITENTIARY, AND APPEARING PRO SE, FILED IN THE SUPREME
COURT OF ILLINOIS MOTIONS ASKING LEAVE "TO SUE AS A POOR PERSON FOR
WRIT OF ERROR  ...  " TO REVIEW EACH OF THE ORIGINAL PROCEEDINGS. 
THESE WERE GRANTED AND HE FILED HIS PETITIONS, PRO SE, BASED UPON THE
COMMON LAW RECORDS IN THE RESPECTIVE CASES.  HE RELIED PARTICULARLY
UPON THE CLAIM THAT HE HAD BEEN DENIED REPRESENTATION BY COUNSEL, THAT
THE TRIAL COURT HAD NOT ADVISED HIM OF HIS RIGHTS OR OF HIS RIGHT TO
THE ASSISTANCE OF COUNSEL AND THAT HE HAD BEEN RUSHED TO TRIAL WITH
SUCH EXPEDITION AS TO DEPRIVE HIM OF A FAIR AND IMPARTIAL TRIAL, ALL OF
WHICH RIGHTS HE CLAIMED WERE GUARANTEED TO HIM BY THE STATE AND FEDERAL
CONSTITUTIONS. 

THE SUPREME COURT OF ILLINOIS AFFIRMED BOTH JUDGMENTS.  396 ILL. 588,
72 N.E.2D 813.  IT DENIED EXPRESSLY EACH OF THE ABOVE-MENTIONED CLAIMS
AND DENIED A REHEARING.  WE GRANTED CERTIORARI IN RECOGNITION OF THE
FREQUENTLY ARISING CONSTITUTIONAL PRINCIPLE INVOLVED.  332 U.S. 756. 
THE PETITIONER'S PRESENTATIONS, PRO SE, WERE MARKED WITH PROFESSIONAL
ACCURACY AND CLARITY BUT THE PETITION FOR CERTIORARI STATES THAT THE
PETITIONER IS IGNORANT OF THE LAW AS HE WAS AT THE TIME OF HIS TRIAL,
AND THAT THE DOCUMENTS FILED BY HIM PRO SE HAD BEEN PREPARED FOR HIM. 
WE APPOINTED A MEMBER OF THE BAR OF THIS COURT TO ACT AS COUNSEL FOR
THE PETITIONER HERE AND THE PETITIONER'S CLAIMS HAVE BEEN FULLY AND
COMPETENTLY PRESENTED TO THIS COURT. 

                   EFFECT OF FOURTEENTH AMENDMENT. 

THE CASES TURN UPON THE MEANING OF "DUE PROCESS OF LAW" UNDER THE
FOURTEENTH AMENDMENT IN RELATION TO THE ASSISTANCE OF COUNSEL FOR THE
DEFENSE OF THE ACCUSED IN STATE CRIMINAL TRIALS SUCH AS THESE.  IN
POWELL V. ALABAMA, 287 U.S. 45, THIS COURT GRANTED RELIEF IN A GROUP OF
CAPITAL CASES WHICH DEMONSTRATED THE ESSENTIAL NEED FOR APPLYING THE
FULL FORCE OF THE FOURTEENTH AMENDMENT TO THE INVALIDATION OF
PURPORTEDLY VALID JUDGMENTS RENDERED IN A STATE COURT UNDER THE
CIRCUMSTANCES THERE SHOWN.  THOSE AND OTHER LESS EXTREME CASES HAVE
WELL ILLUSTRATED THE KIND OF SERVICE TO THE CAUSE OF JUSTICE WHICH CAN
BE RENDERED BY THIS COURT IN THUS GIVING EFFECT TO THE FOURTEENTH
AMENDMENT. 

"THE DUE PROCESS OF LAW CLAUSE IN THE FOURTEENTH AMENDMENT DOES NOT
TAKE UP THE STATUTES OF THE SEVERAL STATES AND MAKE THEM THE TEST OF
WHAT IT REQUIRES; NOR DOES IT ENABLE THIS COURT TO REVISE THE DECISIONS
OF THE STATE COURTS ON QUESTIONS OF STATE LAW.  WHAT IT DOES REQUIRE IS
THAT STATE ACTION, WHETHER THROUGH ONE AGENCY OR ANOTHER, SHALL BE
CONSISTENT WITH THE FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE WHICH
LIE AT THE BASE OF ALL OUR CIVIL AND POLITICAL INSTITUTIONS AND NOT
INFREQUENTLY ARE DESIGNATED AS 'LAW OF THE LAND.'  THOSE PRINCIPLES ARE
APPLICABLE ALIKE IN ALL THE STATES AND DO NOT DEPEND UPON OR VARY WITH
LOCAL LEGISLATION."  HEBERT V. LOUISIANA, 272 U.S. 312, 316-317. 

"THIS COURT HAS NEVER ATTEMPTED TO DEFINE WITH PRECISION THE WORDS
'DUE PROCESS OF LAW,' NOR IS IT NECESSARY TO DO SO IN THIS CASE.  IT IS
SUFFICIENT TO SAY THAT THERE ARE CERTAIN IMMUTABLE PRINCIPLES OF
JUSTICE WHICH INHERE IN THE VERY IDEA OF FREE GOVERNMENT WHICH NO
MEMBER OF THE UNION MAY DISREGARD, AS THAT NO MAN SHALL BE CONDEMNED IN
HIS PERSON OR PROPERTY WITHOUT DUE NOTICE AND AN OPPORTUNITY OF BEING
HEARD IN HIS DEFENCE."  HOLDEN V. HARDY, 169 U.S. 366, 389-390. 

THE FOREGOING STATEMENTS WERE REFERRED TO WITH APPROVAL IN POWELL V.
ALABAMA, SUPRA, AT PP. 67, 71-72. 

THE PRESENT CASE, ON THE OTHER HAND, ILLUSTRATES EQUALLY WELL THE
KIND OF JUDGMENTS BY A STATE COURT THAT SHOULD NOT BE INVALIDATED AS
LACKING IN THE DUE PROCESS OF LAW REQUIRED BY THE FOURTEENTH
AMENDMENT.  THIS IS SO, ALTHOUGH THE PROCEDURE FOLLOWED, IN 1938, BY
THE STATE COURT IN THE INSTANT CASES, AS TO COUNSEL FOR THE ACCUSED
MIGHT NOT HAVE SATISFIED THE PRACTICE THEN REQUIRED OF A FEDERAL COURT
IN THE CASE OF COMPARABLE FEDERAL CRIMES.  THE FOURTEENTH AMENDMENT,
HOWEVER, DOES NOT SAY THAT NO STATE SHALL DEPRIVE ANY PERSON OF LIBERTY
WITHOUT FOLLOWING THE FEDERAL PROCESS OF LAW AS PRESCRIBED FOR THE
FEDERAL COURTS IN COMPARABLE FEDERAL CASES.  IT SAYS MERELY "NOR SHALL
ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE
PROCESS OF LAW; ...  "  THIS DUE PROCESS IS NOT AN EQUIVALENT FOR THE
PROCESS OF THE FEDERAL COURTS OR FOR THE PROCESS OF ANY PARTICULAR
STATE.  IT HAS REFERENCE RATHER TO A STANDARD OF PROCESS THAT MAY COVER
MANY VARIETIES OF PROCESSES THAT ARE EXPRESSIVE OF DIFFERING
COMBINATIONS OF HISTORICAL OR MODERN, LOCAL OR OTHER JURIDICAL
STANDARDS, PROVIDED THEY DO NOT CONFLICT WITH THE "FUNDAMENTAL
PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR
CIVIL AND POLITICAL INSTITUTIONS  ...  "  HEBERT V. LOUISIANA, SUPRA,
AT P. 316.  THIS CLAUSE IN THE FOURTEENTH AMENDMENT LEAVES ROOM FOR
MUCH OF THE FREEDOM WHICH, UNDER THE CONSTITUTION OF THE UNITED STATES
AND IN ACCORDANCE WITH ITS PURPOSES, WAS ORIGINALLY RESERVED TO THE
STATES FOR THEIR EXERCISE OF THEIR OWN POLICE POWERS AND FOR THEIR
CONTROL OVER THE PROCEDURE TO BE FOLLOWED IN CRIMINAL TRIALS IN THEIR
RESPECTIVE COURTS.  IT RECOGNIZES THAT DIFFERENCES ARISE NATURALLY
BETWEEN THE PROCEDURES IN THE STATE COURTS AND THOSE IN THE FEDERAL
COURTS.  FN4 

ONE OF THE MAJOR CONTRIBUTIONS TO THE SCIENCE OF GOVERNMENT THAT WAS
MADE BY THE CONSTITUTION OF THE UNITED STATES WAS ITS DIVISION OF
POWERS BETWEEN THE STATES AND THE FEDERAL GOVERNMENT.  THE COMPROMISE
BETWEEN STATE RIGHTS AND THOSE OF A CENTRAL GOVERNMENT WAS FULLY
CONSIDERED IN SECURING THE RATIFICATION OF THE CONSTITUTION IN 1787 AND
1788.  FN5  IT WAS EMPHASIZED IN THE "BILL OF RIGHTS," RATIFIED IN
1791.  IN THE TEN AMENDMENTS CONSTITUTING SUCH BILL, ADDITIONAL
RESTRICTIONS WERE PLACED UPON THE FEDERAL GOVERNMENT AND PARTICULARLY
UPON PROCEDURE IN THE FEDERAL COURTS.  FN6  NONE WERE PLACED UPON THE
STATES.  ON THE CONTRARY, THE RESERVED POWERS OF THE STATES AND OF THE
PEOPLE WERE EMPHASIZED IN THE NINTH AND TENTH AMENDMENTS.  FN7  THE
CONSTITUTION WAS CONCEIVED IN LARGE PART IN THE SPIRIT OF THE
DECLARATION OF INDEPENDENCE WHICH DECLARED THAT TO SECURE SUCH
"UNALIENABLE RIGHTS" AS THOSE OF "LIFE, LIBERTY AND THE PURSUIT OF
HAPPINESS  ...  GOVERNMENTS ARE INSTITUTED AMONG MEN, DERIVING THEIR
JUST POWERS FROM THE CONSENT OF THE GOVERNED,  ...  "  IT SOUGHT TO
KEEP THE CONTROL OVER INDIVIDUAL RIGHTS CLOSE TO THE PEOPLE THROUGH
THEIR STATES.  WHILE THERE HAVE BEEN MODIFICATIONS MADE BY THE STATES,
THE CONGRESS AND THE COURTS IN SOME OF THE RELATIONS BETWEEN THE
FEDERAL GOVERNMENT AND THE PEOPLE, THERE HAS BEEN NO CHANGE THAT HAS
TAKEN FROM THE STATES THEIR UNDERLYING CONTROL OVER THEIR LOCAL POLICE
POWERS AND STATE COURT PROCEDURES.  THEY RETAINED THIS CONTROL FROM THE
BEGINNING AND, IN SOME STATES, LOCAL CONTROL OF THESE MATTERS LONG
ANTEDATED THE CONSTITUTION.  THE STATES AND THE PEOPLE STILL ARE THE
REPOSITORIES OF THE "POWERS NOT DELEGATED TO THE UNITED STATES BY THE
CONSTITUTION, NOR PROHIBITED BY IT TO THE STATES,  ...  "  FN8  THE
UNDERLYING CONTROL OVER THE PROCEDURE IN ANY STATE COURT, DEALING WITH
DISTINCTLY LOCAL OFFENSES SUCH AS THOSE HERE INVOLVED, CONSEQUENTLY
REMAINS IN THE STATE.  THE DIFFERING NEEDS AND CUSTOMS OF THE
RESPECTIVE STATES AND EVEN OF THE RESPECTIVE COMMUNITIES WITHIN EACH
STATE EMPHASIZE THE PRINCIPLE THAT FAMILIARITY WITH, AND COMPLETE
UNDERSTANDING OF, LOCAL CHARACTERISTICS, CUSTOMS AND STANDARDS ARE
FOUNDATION STONES OF SUCCESSFUL SELF-GOVERNMENT.  LOCAL PROCESSES OF
LAW ARE AN ESSENTIAL PART OF ANY GOVERNMENT CONDUCTED BY THE PEOPLE. 
NO NATIONAL AUTHORITY, HOWEVER BENEVOLENT, THAT GOVERNS OVER
130,000,000 PEOPLE IN 48 STATES, CAN BE AS CLOSELY IN TOUCH WITH THOSE
WHO ARE GOVERNED AS CAN THE LOCAL AUTHORITIES IN THE SEVERAL STATES AND
THEIR SUBDIVISIONS.  THE PRINCIPLE OF "HOME RULE" WAS AN AXIOM AMONG
THE AUTHORS OF THE CONSTITUTION.  AFTER ALL, THE VITAL TEST OF SELF
GOVERNMENT IS NOT SO MUCH ITS SATISFACTORINESS WEIGHED IN THE SCALES OF
OUTSIDERS AS IT IS ITS SATISFACTORINESS WEIGHED IN THE SCALES OF "THE
GOVERNED."  FN9  WHILE, UNDER THE CONSTITUTION OF THE UNITED STATES,
THE FEDERAL GOVERNMENT, AS WELL AS EACH STATE GOVERNMENT, IS AT BOTTOM
A GOVERNMENT BY THE PEOPLE, NEVERTHELESS, THE FEDERAL SPHERE OF
GOVERNMENT HAS BEEN LARGELY LIMITED TO CERTAIN DELEGATED POWERS.  THE
BURDEN OF ESTABLISHING A DELEGATION OF POWER TO THE UNITED STATES OR
THE PROHIBITION OF POWER TO THE STATES IS UPON THOSE MAKING THE CLAIM. 
THIS POINT OF VIEW IS MATERIAL IN THE INSTANT CASES IN INTERPRETING THE
LIMITATION WHICH THE FOURTEENTH AMENDMENT PLACES UPON THE PROCESSES OF
LAW THAT MAY BE PRACTICED BY THE SEVERAL STATES, INCLUDING ILLINOIS. 
IN OUR OPINION THIS LIMITATION IS DESCRIPTIVE OF A BROAD REGULATORY
POWER OVER EACH STATE AND NOT OF A MAJOR TRANSFER BY THE STATES TO THE
UNITED STATES OF THE PRIMARY AND PRE-EXISTING POWER OF THE STATES OVER
COURT PROCEDURES IN STATE CRIMINAL CASES. 

UNTIL THE TAKING EFFECT OF THE FOURTEENTH AMENDMENT IN 1868, THERE
WAS NO QUESTION BUT THAT THE STATES WERE FREE TO ESTABLISH THEIR OWN
COURT PROCEDURES.  THIS FREEDOM INCLUDED STATE PRACTICE AS TO THE
ASSISTANCE OF COUNSEL TO BE PERMITTED OR ASSIGNED TO THE ACCUSED FOR
HIS DEFENSE IN STATE CRIMINAL CASES.  BECAUSE THE CONSTITUTION OF THE
UNITED STATES, DURING NEARLY 80 FORMATIVE YEARS, THUS PERMITTED EACH
STATE TO ESTABLISH, MAINTAIN AND ACCUSTOM ITS PEOPLE TO THAT STATE'S
OWN FORMS OF "DUE PROCESS OF LAW," A SUBSTANTIAL PRESUMPTION ARISES IN
FAVOR OF, RATHER THAN AGAINST, THE LAWFULNESS OF THOSE PROCEDURES AND
IN FAVOR OF THEIR RIGHT TO CONTINUED RECOGNITION BY THE FEDERAL
GOVERNMENT AS "DUE PROCESS OF LAW."  WHILE SUCH A PRESUMPTION DOES NOT
ARISE IN FAVOR OF ANY PRACTICE AGAINST WHICH THE FOURTEENTH AMENDMENT
WAS PARTICULARLY DIRECTED, THERE IS NO REASON TO FEEL THAT, IN 1868,
SUCH AMENDMENT WAS PARTICULARLY DIRECTED AGAINST THE PRACTICE NOW
BEFORE US.

                 ILLINOIS CONSTITUTIONAL PROVISIONS. 

FROM THE INCEPTION OF THEIR STATEHOOD, THE PEOPLE OF ILLINOIS HAVE
RECOGNIZED THEIR OWN RESPONSIBILITY FOR THE PRESERVATION OF LOCAL DUE
PROCESS OF LAW AND OF THE CIVIL RIGHTS OF INDIVIDUALS WITHIN THE
JURISDICTION OF THAT STATE.  THEY DEALT AT LENGTH WITH SUCH MATTERS IN
THEIR ORIGINAL CONSTITUTION OF 1818.  IN ARTICLE VIII THEY PROVIDED - 

"THAT THE GENERAL, GREAT AND ESSENTIAL PRINCIPLES OF LIBERTY AND FREE
GOVERNMENT MAY BE RECOGNIZED AND UNALTERABLY ESTABLISHED, WE DECLARE: 

.         .         .         .         . 

"SEC. 9.  THAT IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED HATH A RIGHT
TO BE HEARD BY HIMSELF AND COUNSEL; TO DEMAND THE NATURE AND CAUSE OF
THE ACCUSATION AGAINST HIM; TO MEET THE WITNESSES FACE TO FACE; TO HAVE
COMPULSORY PROCESS TO COMPEL THE ATTENDANCE OF WITNESSES IN HIS FAVOR;
AND IN PROSECUTIONS BY INDICTMENT OR INFORMATION, A SPEEDY PUBLIC TRIAL
BY AN IMPARTIAL JURY OF THE VICINAGE, AND THAT HE SHALL NOT BE
COMPELLED TO GIVE EVIDENCE AGAINST HIMSELF."  FN10  REPRINTED IN ILL.
REV. STAT. (1937). 

THE ILLINOIS CONSTITUTION OF 1848 CONTAINED A COMPARABLE "DECLARATION
OF RIGHTS" IN ARTICLE XIII.  AMONG THAT ARTICLE'S 26 SECTIONS WERE
SECS. 8 AND 9, SUBSTANTIALLY READOPTING LANGUAGE USED IN SECS. 8 AND 9
OF ARTICLE VIII OF THE ORIGINAL CONSTITUTION.  FN11 

IN THE ILLINOIS CONSTITUTION OF 1870, A "BILL OF RIGHTS" WAS SET
FORTH IN ARTICLE II DEALING WITH THESE SUBJECTS AND INCLUDING SECS. 2
AND 9 IN THE FOLLOWING FORM: 

"SEC. 2.  NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY,
WITHOUT DUE PROCESS OF LAW. 

     .         .         .         .   . 

"SEC. 9.  IN ALL CRIMINAL PROSECUTIONS THE ACCUSED SHALL HAVE THE
RIGHT TO APPEAR AND DEFEND IN PERSON AND BY COUNSEL, TO DEMAND THE
NATURE AND CAUSE OF THE ACCUSATION AND TO HAVE A COPY THEREOF, TO MEET
THE WITNESSES FACE TO FACE, AND TO HAVE PROCESS TO COMPEL THE
ATTENDANCE OF WITNESSES IN HIS BEHALF, AND A SPEEDY PUBLIC TRIAL BY AN
IMPARTIAL JURY OF THE COUNTY OR DISTRICT IN WHICH THE OFFENSE IS
ALLEGED TO HAVE BEEN COMMITTED."  REPRINTED IN ILL. REV. STAT. (1937). 

THESE LATTER PROVISIONS WERE IN EFFECT IN ILLINOIS AT THE TIME OF THE
TRIAL OF THE INSTANT CASES.  THERE IS AND CAN BE NO QUESTION RAISED
HERE BUT THAT THE PROCEDURE IN THE INSTANT CASES CONFORMED TO THE
ILLINOIS CONSTITUTION AS INTERPRETED BY THE SUPREME COURT OF THAT
STATE. 

THE CONSTITUTION OF THE UNITED STATES THUS LEFT THE POWER TO REGULATE
THE PROCEDURE AS TO THE ASSISTANCE OF COUNSEL FOR THE DEFENSE OF THE
ACCUSED IN STATE CRIMINAL CASES TO THE DISCRETION OF THE RESPECTIVE
STATES, AT LEAST UNTIL 1868.  THE FOURTEENTH AMENDMENT THEN WAS ADOPTED
TO MEET THE CRYING NEEDS OF THAT TIME.  FN12

           JUDICIAL INTERPRETATION OF FOURTEENTH AMENDMENT. 

AFTER EXHAUSTIVE CONSIDERATION OF THE SUBJECT, THIS COURT HAS DECIDED
THAT THE FOURTEENTH AMENDMENT DOES NOT, THROUGH ITS DUE PROCESS CLAUSE
OR OTHERWISE, HAVE THE EFFECT OF REQUIRING THE SEVERAL STATES TO
CONFORM THE PROCEDURE OF THEIR STATE CRIMINAL TRIALS TO THE PRECISE
PROCEDURE OF THE FEDERAL COURTS, EVEN TO THE EXTENT THAT THE PROCEDURE
OF THE FEDERAL COURTS IS PRESCRIBED BY THE FEDERAL CONSTITUTION OR BILL
OF RIGHTS.  THERE IS NOTHING IN THE FOURTEENTH AMENDMENT SPECIFICALLY
STATING THAT THE LONG RECOGNIZED AND THEN EXISTING POWER OF THE STATES
OVER THE PROCEDURE OF THEIR OWN COURTS IN CRIMINAL CASES WAS TO BE
PROHIBITED OR EVEN LIMITED.  UNLIKE THE BILL OF RIGHTS, THE FOURTEENTH
AMENDMENT MADE NO MENTION OF ANY REQUIREMENT OF GRAND JURY PRESENTMENTS
OR INDICTMENTS AS A PRELIMINARY STEP IN CERTAIN CRIMINAL PROSECUTIONS;
ANY UNIVERSAL PROHIBITION AGAINST THE ACCUSED BEING COMPELLED, IN A
CRIMINAL CASE, TO BE A WITNESS AGAINST HIMSELF; ANY JURISDICTIONAL
REQUIREMENT OF JURIES IN ALL CRIMINAL TRIALS; ANY GUARANTY TO THE
ACCUSED THAT HE HAVE A RIGHT TO THE ASSISTANCE OF COUNSEL FOR HIS
DEFENSE IN ALL CRIMINAL PROSECUTIONS; OR ANY NEED TO OBSERVE THE RULES
OF THE COMMON LAW IN THE RE-EXAMINATION OF ALL FACTS TRIED BY A JURY. 
FN13  IN SPITE OF SUCH OMISSIONS, IT IS CLAIMED HERE, ON BEHALF OF THE
PETITIONER, THAT EVEN THOUGH THE FAILURE OF THE STATE COURT IN THESE
CASES TO INQUIRE OF THE ACCUSED AS TO HIS DESIRE TO BE REPRESENTED BY
COUNSEL, OR HIS ABILITY TO PROCURE COUNSEL, OR HIS DESIRE TO HAVE
COUNSEL ASSIGNED TO HIM TO ASSIST HIM IN HIS DEFENSE, AND EVEN THOUGH
THE FAILURE OF THE STATE COURT IN THESE CASES TO OFFER OR ASSIGN
COUNSEL TO THE ACCUSED FOR HIS DEFENSE MAY HAVE SATISFIED THE ILLINOIS
LAW AND HAVE AMOUNTED TO "DUE PROCESS OF LAW" UNDER THE ILLINOIS
CONSTITUTION,  FN14  YET SUCH PRACTICES DID NOT SATISFY THE "DUE
PROCESS OF LAW" REQUIRED OF THE STATES BY THE FOURTEENTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES. 

TO SUSTAIN THIS CLAIM, IT IS NECESSARY FOR THE PETITIONER TO
ESTABLISH THAT, IN SPITE OF THE CONSTITUTIONALITY OF THE PROCESS OF LAW
DEVELOPED BY ILLINOIS IN ITS OWN CRIMINAL CASES, PRIOR TO 1868, YET
THAT SAME ILLINOIS PROCESS OF LAW, AFTER 1868, NO LONGER IS
CONSTITUTIONALLY VALID AS "DUE PROCESS OF LAW" UNDER THE FOURTEENTH
AMENDMENT.  WE RECOGNIZE THAT THE FOURTEENTH AMENDMENT, AS PART OF THE
SUPREME LAW OF THE LAND UNDER ARTICLE VI OF THE ORIGINAL CONSTITUTION,
SUPERSEDES "ANY THING IN THE CONSTITUTION OR LAWS OF ANY STATE TO THE
CONTRARY NOTWITHSTANDING."  THE IMPORTANT QUESTION REMAINS, HOWEVER:
WHAT SHALL BE CONSIDERED TO BE TO THE CONTRARY?  IT IS THE ESTABLISHED
POLICY OF BOTH THE STATE AND FEDERAL GOVERNMENTS TO TREAT POSSIBLE
CONFLICTS BETWEEN THEIR POWERS IN SUCH A MANNER AS TO PRODUCE AS LITTLE
CONFLICT AND FRICTION AS POSSIBLE.  SO HERE THE PROCEDURE FOLLOWED BY
ILLINOIS SHOULD NOT BE HELD TO VIOLATE THE STANDARD OF PERMISSIBLE
PROCESS OF LAW BROADLY RECOGNIZED BY THE FOURTEENTH AMENDMENT UNLESS
THE ILLINOIS PROCEDURE VIOLATES "THE VERY ESSENCE OF A SCHEME OF
ORDERED LIBERTY" AND ITS CONTINUANCE WOULD "VIOLATE A 'PRINCIPLE OF
JUSTICE SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO
BE RANKED AS FUNDAMENTAL.'"  CARDOZO, J., IN PALKO V. CONNECTICUT, 302
U.S. 319, 325, WITH QUOTATION FROM HIS OPINION IN SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 105.  SEE FOSTER V. ILLINOIS, 332 U.S. 134,
137; ADAMSON V. CALIFORNIA, 332 U.S. 46, CONCURRING OPINION AT PP. 61
67; BETTS V. BRADY, 316 U.S. 455, 465; BROWN V. MISSISSIPPI, 297 U.S.
278, 285-286; POWELL V. ALABAMA, 287 U.S. 45, 61-62, 67, 71-72; HEBERT
V. LOUISIANA, 272 U.S. 312, 316; TWINING V. NEW JERSEY, 211 U.S. 78;
HOLDEN V. HARDY, 169 U.S. 366, 389-390; HURTADO V. CALIFORNIA, 110 U.S.
516, 532, 535, 537. 

IT IS NATURAL FOR STATE PROCEDURES TO DIFFER FROM EACH OTHER IN MANY
WAYS.  IT IS PERMISSIBLE FOR THE STATES TO ESTABLISH WAYS OF
SAFEGUARDING THE RESPECTIVE INTERESTS OF THE PROSECUTION AND OF THE
ACCUSED IN THEIR COURTS.  THESE MAY DIFFER FROM COMPARABLE PRACTICES
DEVELOPED IN THE COURTS OF OTHER STATES OR OF THE UNITED STATES. 
BEFORE EXAMINING THE ILLINOIS PRACTICE AND THE PRECISE FACTS OF THE
CASES BEFORE US, IT IS HELPFUL TO SEE WHAT HAS BEEN THE PRACTICE IN THE
COURTS OF THE UNITED STATES AND ESPECIALLY TO SEE WHAT SUCH PRACTICE
WAS IN 1938, AT THE TIME OF THE TRIAL OF THE INSTANT CASES.  WHILE SUCH
FEDERAL COURT PRACTICE DOES NOT ESTABLISH A CONSTITUTIONAL MINIMUM
STANDARD OF DUE PROCESS WHICH MUST BE OBSERVED IN EACH STATE UNDER THE
FOURTEENTH AMENDMENT, YET SUCH PRACTICE DOES AFFORD AN EXAMPLE APPROVED
BY THE COURTS OF THE UNITED STATES.  IT THUS CONTRIBUTES SOMETHING
TOWARD ESTABLISHING A GENERAL STANDARD OF DUE PROCESS CURRENTLY AND
PROPERLY APPLICABLE TO THE STATES UNDER THE FOURTEENTH AMENDMENT. 

      PRACTICE IN FEDERAL COURTS. 

THE PRACTICE IN THE FEDERAL COURTS AS TO THE RIGHT OF THE ACCUSED TO
HAVE THE ASSISTANCE OF COUNSEL IS DERIVED FROM THE SIXTH AMENDMENT
WHICH EXPRESSLY REQUIRES THAT, IN ALL CRIMINAL PROSECUTIONS IN THE
COURTS OF THE UNITED STATES, THE ACCUSED SHALL HAVE THE ASSISTANCE OF
COUNSEL FOR HIS DEFENSE.  FN15  THERE IS NO PROOF POSSIBLE THAT THE
SAME PRACTICE WOULD HAVE DEVELOPED UNDER THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT HAD THERE BEEN NO SPECIFIC PROVISION ON THE SUBJECT IN
THE SIXTH AMENDMENT.  IT IS OBVIOUS ALSO THAT THERE IS NO SPECIFIC
PROVISION IN THE FOURTEENTH AMENDMENT COMPARABLE TO THAT IN THE SIXTH
AMENDMENT.  FURTHERMORE, AT THE TIME OF THE TRIAL OF THIS CASE IN 1938,
THE RULE OF PRACTICE EVEN IN THE FEDERAL COURTS WAS NOT AS CLEAR AS IT
IS TODAY.  THE FEDERAL STATUTES WERE THEN, AND THEY ARE NOW, IN
PRACTICALLY THE SAME FORM AS WHEN THEY WERE ENACTED IN 1789 AND 1790. 
THEY PROVIDED MERELY FOR A RIGHT OF REPRESENTATION IN THE FEDERAL
COURTS BY THE ACCUSED'S OWN COUNSEL AND REQUIRED ASSIGNMENT OF COUNSEL
BY THE COURT ONLY ON ACCUSATIONS FOR TREASON OR OTHER CAPITAL CRIMES. 
FN16  IN FACT, UNTIL THE DECISION OF THIS COURT IN MAY, 1938(ONE MONTH
BEFORE THE TRIAL OF THE INSTANT CASES IN THE ILLINOIS STATE COURT), IN
JOHNSON V. ZERBST, 304 U.S. 458, THERE WAS LITTLE IN THE DECISIONS OF
ANY COURTS TO INDICATE THAT THE PRACTICE IN THE FEDERAL COURTS, EXCEPT
IN CAPITAL CASES, REQUIRED THE APPOINTMENT OF COUNSEL TO ASSIST THE
ACCUSED IN HIS DEFENSE, AS CONTRASTED WITH THE RECOGNIZED RIGHT OF THE
ACCUSED TO BE REPRESENTED BY COUNSEL OF HIS OWN IF HE SO DESIRED.  THAT
PRE-1938 PRACTICE, HOWEVER, WAS IN THE FACE OF THE LANGUAGE OF THE
SIXTH AMENDMENT WHICH WAS HELD IN JOHNSON V. ZERBST, SUPRA, TO REQUIRE
THE APPOINTMENT OF COUNSEL IN ANY FEDERAL CRIMINAL CASE WHERE THE
ACCUSED HAD NO COUNSEL AND DID NOT WAIVE THE ASSISTANCE OF COUNSEL. 
FN17  "THE SIXTH AMENDMENT WITHHOLDS FROM FEDERAL COURTS, IN ALL
CRIMINAL PROCEEDINGS, THE POWER AND AUTHORITY TO DEPRIVE AN ACCUSED OF
HIS LIFE OR LIBERTY UNLESS HE HAS OR WAIVES THE ASSISTANCE OF
COUNSEL."  ID. AT P. 463.  SEE POWELL V. ALABAMA, 287 U.S. 45, 68, 69
AND PATTON V. UNITED STATES, 281 U.S. 276, 308, AS QUOTED IN THE ZERBST
CASE.  SEE ALSO, WALKER V. JOHNSTON, 312 U.S. 275. 

THE VIEW OF THIS COURT AS TO THE PRACTICE BEST ADAPTED TO THE NEEDS
OF THE FEDERAL COURTS AND MOST RESPONSIVE TO THE REQUIREMENTS OF THE
FEDERAL CONSTITUTION AND STATUTES AS WELL AS TO THE DECISIONS OF THIS
COURT IS NOW STATED IN RULE 44 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE WHICH BECAME EFFECTIVE MARCH 21, 1946.  FN18  IN VIEW,
HOWEVER, OF THE APPLICABILITY TO THE STATE COURTS OF THE FOURTEENTH
RATHER THAN THE SIXTH AMENDMENT, THIS NEW RULE CANNOT BE REGARDED AS
DEFINING, EVEN BY ANALOGY, THE MINIMUM REQUIREMENT OF DUE PROCESS FOR
THE STATES UNDER THE FOURTEENTH AMENDMENT.  THE NEW RULE IS EVIDENCE
ONLY OF WHAT THIS COURT CONSIDERS SUITABLE IN THE FEDERAL COURTS AND
THE STATES, IN THEIR DISCRETION, MAY OR MAY NOT FOLLOW IT.  THE STATES
ARE FREE TO DETERMINE THEIR OWN PRACTICE AS TO THE ASSISTANCE OF
COUNSEL, SUBJECT TO THE GENERAL LIMITATION THAT SUCH PRACTICE SHALL NOT
DEPRIVE THE ACCUSED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF
LAW.  ACCORDINGLY, THE LACK OF CONFORMITY OF ILLINOIS PRACTICE IN 1938
TO THE STANDARDS ILLUSTRATED BY THE PRESENT FEDERAL RULES OF CRIMINAL
PROCEDURE IS BY NO MEANS DETERMINATIVE OF THE ISSUE BEFORE US.

                      PRACTICE IN STATE COURTS. 

AS THROWING LIGHT ON THE GENERAL PRACTICE IN THE SEVERAL STATES, THE
NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT, UNDER THE
CHAIRMANSHIP OF GEORGE W. WICKERSHAM, IN ITS REPORT ON PROSECUTION IN
1931, SAID: 

"IN AMERICA COUNSEL WAS ALLOWED FROM AN EARLY DATE AND STATE AND
FEDERAL CONSTITUTIONS GUARANTEE TO ACCUSED IN ALL PROSECUTIONS 'THE
ASSISTANCE OF COUNSEL FOR HIS DEFENSE,' IN THIS OR SOME EQUIVALENT
LANGUAGE.  IT WILL BE SEEN FROM THIS BIT OF HISTORY THAT, AS INDEED THE
COURTS HAVE HELD, THE RIGHT GUARANTEED IS ONE OF EMPLOYING COUNSEL, NOT
ONE OF HAVING COUNSEL PROVIDED BY THE GOVERNMENT.  BUT IN THE SPIRIT OF
THE GUARANTY MOST OF THE STATES HAVE BY LEGISLATION AUTHORIZED OR EVEN
REQUIRED THE COURTS TO ASSIGN COUNSEL FOR THE DEFENSE OF INDIGENT AND
UNREPRESENTED PRISONERS.  AS TO CAPITAL CASES, ALL THE STATES SO
PROVIDE.  THIRTY-FOUR STATES SO PROVIDE FOR FELONIES AND 28 FOR
MISDEMEANORS."  VOL. I, P. 30.    THE FOREGOING SUGGESTS THE EXISTENCE
OF A GRADUAL VOLUNTARY TREND AMONG THE STATES TOWARD THE AUTHORIZATION
BY THEM OF THE APPOINTMENT OF COUNSEL TO ASSIST THE ACCUSED IN HIS
DEFENSE IN ALL CRIMINAL PROSECUTIONS, WITH SPECIAL CONSIDERATION TO THE
SERIOUSNESS OF THE CHARGE FACED AND TO THE ACTUAL NEEDS OF THE ACCUSED
UNDER THE CIRCUMSTANCES OF EACH CASE.  MUCH OF THIS TREND HAS TAKEN
PLACE SINCE 1868.  IT IS NEITHER UNIVERSAL NOR UNIFORM.  THE ABOVE
SUMMARY SHOWS THAT 20 STATES, IN 1931, HAD NO STATUTE AUTHORIZING SUCH
APPOINTMENTS OF COUNSEL IN MISDEMEANOR CASES AND 14 HAD NONE, EVEN IN
FELONY CASES, UNLESS THE CHARGES WERE FOR CAPITAL OFFENSES. 
FURTHERMORE, SOME OF THESE AUTHORIZATIONS, AS IN ILLINOIS, WERE SUBJECT
TO SPECIAL LIMITATIONS REQUIRING AN AFFIRMATIVE SHOWING TO BE MADE BY
THE ACCUSED OF HIS INABILITY TO PROCURE COUNSEL FOR HIMSELF. 

ANOTHER INDICATION OF THE OPINION OF REPRESENTATIVE MEMBERS OF THE
BENCH, BAR AND LAW SCHOOL FACULTIES APPEARS IN THE FOLLOWING QUOTATION
FROM SEC. 203 OF THE CODE OF CRIMINAL PROCEDURE, APPROVED BY THE
AMERICAN LAW INSTITUTE IN 1930: 

"BEFORE THE DEFENDANT IS ARRAIGNED ON A CHARGE OF FELONY IF HE IS
WITHOUT COUNSEL THE COURT SHALL, UNLESS THE DEFENDANT OBJECTS, ASSIGN
HIM COUNSEL TO REPRESENT HIM IN THE CAUSE.  COUNSEL SO ASSIGNED SHALL
SERVE WITHOUT COST TO THE DEFENDANT, AND SHALL HAVE FREE ACCESS TO THE
DEFENDANT, IN PRIVATE, AT ALL REASONABLE HOURS WHILE ACTING AS COUNSEL
FOR HIM.  ASSIGNMENT OF COUNSEL SHALL NOT DEPRIVE THE DEFENDANT OF THE
RIGHT TO ENGAGE OTHER COUNSEL AT ANY STAGE OF THE PROCEEDINGS IN
SUBSTITUTION OF COUNSEL ASSIGNED HIM BY THE COURT."  AT P. 88. 

THE COMMENTARY OF THE INSTITUTE ACCOMPANYING THIS SECTION SHOWS THAT
THE ASSISTANCE RECOMMENDED FOR THE ACCUSED IN SEC. 203 OF THE PROPOSED
CODE WAS THEN FAR IN ADVANCE OF THE STATUTES IN MOST OF THE STATES. 
THE COMMENTARY ALSO ILLUSTRATES THE VARIATIONS EXISTING AMONG THE
PROCESSES ADOPTED BY THE STATES IN THEIR SEARCH FOR A SATISFACTORY
PROCESS OF LAW IN THIS REGARD.  IT DEMONSTRATES THAT, UP TO 1930, BUT
LIMITED PROGRESS HAD BEEN MADE BY STATUTE TOWARD THE STANDARD NOW
CLAIMED BY THE PETITIONER TO HAVE BECOME CONSTITUTIONALLY ESSENTIAL TO
A VALID JUDGMENT IN THE INSTANT CASES IN 1938.  FN19  IT ILLUSTRATES
THE WIDE DIFFERENCE NATURALLY AND CONSTITUTIONALLY EXISTING BETWEEN
WHAT HAS BEEN PRESCRIBED BY THE SEVERAL STATES AND WHAT HAS BEEN
RECOMMENDED TO THEM BY THE INSTITUTE.  WE DO NOT FIND IN THE FOURTEENTH
AMENDMENT AUTHORITY FOR THIS COURT TO DO WHAT IS ASKED OF US HERE,
NAMELY, TO REQUIRE ALL THE STATES TO ENFORCE IN SUBSTANCE EITHER RULE
44 OF THE NEW FEDERAL RULES OF CRIMINAL PROCEDURE OR THE PROPOSED SEC.
203 OF THE CODE OF CRIMINAL PROCEDURE RECOMMENDED BY THE AMERICAN LAW
INSTITUTE, ALL UNDER PENALTY OF THE INVALIDATION OF EVERY PAST AND
FUTURE NONCONFORMING STATE JUDGMENT. 

IN REVIEWING THE SITUATION FURTHER, IN 1942, THIS COURT, IN BETTS V.
BRADY, 316 U.S. 455, INDICATED THAT IT DID NOT REGARD IT TO BE A
VIOLATION OF THE FOURTEENTH AMENDMENT FOR A MARYLAND TRIAL COURT TO
REFUSE TO APPOINT COUNSEL TO REPRESENT AN INDIGENT DEFENDANT CHARGED
WITH ROBBERY UNDER THE CIRCUMSTANCES OF THAT CASE.  FN20  WE THERE
STATED THE GENERAL PRINCIPLE AS FOLLOWS: 

"THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT
INCORPORATE, AS SUCH, THE SPECIFIC GUARANTEES FOUND IN THE SIXTH
AMENDMENT, ALTHOUGH A DENIAL BY A STATE OF RIGHTS OR PRIVILEGES
SPECIFICALLY EMBODIED IN THAT AND OTHERS OF THE FIRST EIGHT AMENDMENTS
MAY, IN CERTAIN CIRCUMSTANCES, OR IN CONNECTION WITH OTHER ELEMENTS,
OPERATE, IN A GIVEN CASE, TO DEPRIVE A LITIGANT OF DUE PROCESS OF LAW
IN VIOLATION OF THE FOURTEENTH.  ...  ASSERTED DENIAL (OF COUNSEL) IS
TO BE TESTED BY AN APPRAISAL OF THE TOTALITY OF FACTS IN A GIVEN CASE. 
THAT WHICH MAY, IN ONE SETTING, CONSTITUTE A DENIAL OF FUNDAMENTAL
FAIRNESS, SHOCKING TO THE UNIVERSAL SENSE OF JUSTICE, MAY, IN OTHER
CIRCUMSTANCES, AND IN THE LIGHT OF OTHER CONSIDERATIONS, FALL SHORT OF
SUCH DENIAL.  IN THE APPLICATION OF SUCH A CONCEPT, THERE IS ALWAYS THE
DANGER OF FALLING INTO THE HABIT OF FORMULATING THE GUARANTEE INTO A
SET OF HARD AND FAST RULES, THE APPLICATION OF WHICH IN A GIVEN CASE
MAY BE TO IGNORE THE QUALIFYING FACTORS THEREIN DISCLOSED."  ID. AT PP.
461-462.  FN21 

IF, IN THE FACE OF THESE WIDELY VARYING STATE PROCEDURES, THIS COURT
WERE TO SELECT THE RULE CONTENDED FOR BY THE PETITIONER AND HOLD
INVALID ALL PROCEDURE NOT REACHING THAT STANDARD, IT NOT ONLY WOULD
DISREGARD THE BASIC AND HISTORIC POWER OF THE STATES TO PRESCRIBE THEIR
OWN LOCAL COURT PROCEDURES (SUBJECT ONLY TO A BROAD CONSTITUTIONAL
PROHIBITION IN THE FOURTEENTH AMENDMENT AGAINST THE ABUSE OF THAT
POWER) BUT IT WOULD INTRODUCE EXTRAORDINARY CONFUSION AND UNCERTAINTY
INTO LOCAL CRIMINAL PROCEDURE WHERE CLARITY AND CERTAINTY ARE THE
PRIMARY ESSENTIALS OF LAW AND ORDER. 

                     PRACTICE IN ILLINOIS COURTS. 

THE PRECISE QUESTION HERE IS WHETHER THE SENTENCES IN THE TWO
ILLINOIS CASES BEFORE US VIOLATED THE FOURTEENTH AMENDMENT.  THE
SUPREME COURT OF ILLINOIS HAS AFFIRMED BOTH SENTENCES, SUPRA, 396 ILL.
588, 72 N.E.2D 813.  IT HAS THUS CONCLUSIVELY ESTABLISHED THEIR
COMPLIANCE WITH ILLINOIS LAW.  WHILE SUCH A FINDING OF COMPLIANCE WITH
LOCAL LAW IS NOT NECESSARILY SUFFICIENT TO SATISFY THE REQUIREMENTS OF
DUE PROCESS UNDER THE FOURTEENTH AMENDMENT, WE SHALL BE HELPED, IN
MEASURING THE COMPLIANCE OF THESE JUDGMENTS WITH SUCH DUE PROCESS, IF
WE NOTE EXACTLY THE REQUIREMENTS OF ILLINOIS LAW WITH WHICH THE SUPREME
COURT OF THAT STATE HAS FOUND COMPLIANCE. 

THE MATERIAL SECTIONS OF THE ILLINOIS CONSTITUTION HAVE BEEN QUOTED. 
ILLINOIS CONSTITUTION OF 1870, ART. II, SECS. 2 AND 9, SUPRA.  THEY
PROVIDED THAT NO PERSON SHOULD BE DEPRIVED OF LIFE, LIBERTY OR
PROPERTY, WITHOUT DUE PROCESS OF LAW AND THAT, IN ALL CRIMINAL
PROSECUTIONS, THE ACCUSED HAD THE RIGHT TO APPEAR AND DEFEND IN PERSON
AND BY COUNSEL.  THE STATUTES OF ILLINOIS IN EFFECT IN 1938 CONTAINED
THE FOLLOWING REQUIREMENTS AS TO THE ALLOWANCE AND ASSIGNMENT OF
COUNSEL TO A PERSON CHARGED WITH CRIME AND DIFFERENTIATED BETWEEN THE
PROCEDURE REQUIRED IN A CAPITAL CASE AND THAT REQUIRED IN OTHER CASES: 

"EVERY PERSON CHARGED WITH CRIME SHALL BE ALLOWED COUNSEL, AND WHEN
HE SHALL STATE UPON OATH THAT HE IS UNABLE TO PROCURE COUNSEL, THE
COURT SHALL ASSIGN HIM COMPETENT COUNSEL, WHO SHALL CONDUCT HIS
DEFENSE.  IN ALL CASES COUNSEL SHALL HAVE ACCESS TO PERSONS CONFINED,
AND SHALL HAVE THE RIGHT TO SEE AND CONSULT SUCH PERSONS IN PRIVATE. 

"WHENEVER IT SHALL APPEAR TO THE COURT THAT A DEFENDANT OR DEFENDANTS
INDICTED IN A CAPITAL CASE, IS OR ARE INDIGENT AND UNABLE TO PAY
COUNSEL FOR HIS OR HER DEFENSE, IT SHALL BE THE DUTY OF THE COURT TO
APPOINT ONE OR MORE COMPETENT COUNSEL FOR SAID DEFENDANT OR DEFENDANTS,
...  " ILL. REV. STAT. C. 38, SEC. 730(1937). 

AN ILLINOIS STATUTE ALSO PROVIDED EXPRESSLY FOR CASES IN WHICH THE
PARTY ACCUSED HAD PLEADED "GUILTY."  THE RECORD IN THE INSTANT CASES
SHOWS COMPLETE COMPLIANCE WITH THIS PROVISION WHICH, IN EFFECT, PLACED
UPON THE TRIAL COURT PRIMARY RESPONSIBILITY FOR SEEING TO IT THAT THE
PROCEDURE MET ALL LEGAL REQUIREMENTS, WHETHER OF STATE OR FEDERAL
ORIGIN. 

"IN CASES WHERE THE PARTY PLEADS 'GUILTY,' SUCH PLEA SHALL NOT BE
ENTERED UNTIL THE COURT SHALL HAVE FULLY EXPLAINED TO THE ACCUSED THE
CONSEQUENCES OF ENTERING SUCH PLEA; AFTER WHICH, IF THE PARTY PERSIST
IN PLEADING 'GUILTY,' SUCH PLEA SHALL BE RECEIVED AND RECORDED, AND THE
COURT SHALL PROCEED TO RENDER JUDGMENT AND EXECUTION THEREON, AS IF HE
HAD BEEN FOUND GUILTY BY A JURY.  IN ALL CASES WHERE THE COURT
POSSESSES ANY DISCRETION AS TO THE EXTENT OF THE PUNISHMENT, IT SHALL
BE THE DUTY OF THE COURT TO EXAMINE WITNESSES AS TO THE AGGRAVATION AND
MITIGATION OF THE OFFENSE."  ILL. REV. STAT. C. 38, SEC. 732(1937). 

   PRACTICE IN THE INSTANT CASES. 

IT IS NOT OUR PROVINCE TO PRESCRIBE WHICH PROCEDURE WE CONSIDER
PREFERABLE AMONG MANY PERMISSIBLE PROCEDURES WHICH LAWFULLY COULD BE
FOLLOWED BY AN ILLINOIS OR ANY OTHER STATE COURT IN CONNECTION WITH
COUNSEL FOR THE DEFENSE OF A PARTY ACCUSED OF A STATE CRIME.  IT IS OUR
PROVINCE TO DECIDE WHETHER THE PRACTICE OF THE ILLINOIS COURT IN THESE
CASES, ALTHOUGH ADMITTEDLY IN CONFORMITY WITH THE LAW OF ILLINOIS, WAS
SO CLEARLY AT VARIANCE WITH PROCEDURE CONSTITUTING "DUE PROCESS OF LAW"
UNDER THE FOURTEENTH AMENDMENT THAT THESE SENTENCES MUST BE COMPLETELY
INVALIDATED.  THIS BRINGS US TO AN ANALYSIS OF THE PRECISE FACTS
PRESENTED BY THE RECORDS.  EACH CRIME WAS PUNISHABLE BY A MANDATORY
SENTENCE OF FROM ONE TO 20 YEARS IN THE PENITENTIARY.  THE CHARGES WERE
STATED IN SIMPLE TERMS, NOT ORDINARILY CAPABLE OF BEING MISUNDERSTOOD
BY A 57-YEAR OLD MAN, HOWEVER ELEMENTARY OR PRIMITIVE HIS
UNDERSTANDING.  THERE IS NO CLAIM THAT THIS PETITIONER FAILED TO
UNDERSTAND THE CHARGES.  BEFORE HE PLEADED GUILTY, THE COURT
"ADMONISHED AND EXPLAINED TO THE SAID DEFENDANT THE CONSEQUENCES AND
PENALTIES,  ...  "  WHICH WOULD RESULT FROM HIS PLEA OF GUILTY IF
MADE.  THE RECORDS THEN RECITE, LARGELY IN THE LANGUAGE OF THE STATUTE,
THAT "THE SAID DEFENDANT STILL PERSISTING IN HIS DESIRE TO ENTER HIS
PLEA OF GUILTY TO THE CRIME OF TAKING INDECENT LIBERTIES WITH CHILDREN,
IN MANNER AND FORM AS CHARGED IN THE FIRST COUNT OF THE INDICTMENT
HEREIN, THE COURT GRANTS SUCH LEAVE."  WE DO NOT ACCEPT THE ARGUMENT
THAT THESE RECORDS ARE TO BE CONSIDERED UNRELIABLE BECAUSE THEY ARE
ALMOST EXACTLY IN THE LANGUAGE OF THE STATUTE.  THE IMPORTANT POINT IS
NOT SO MUCH THAT A CERTAIN PHRASEOLOGY IS USED, AS IT IS THAT THE COURT
ACTUALLY REPRESENTED THE STATE AT THE TRIAL AND THAT THE COURT DID WHAT
THE STATUTE REQUIRED OF IT.  IT CANNOT BE ARGUED, WITHOUT FACTUAL
SUPPORT, THAT THE COURT FAILED TO DO ITS FULL DUTY WITH AN INTELLIGENT,
COMPETENT AND UNDERSTANDING APPRECIATION OF ALL OF ITS STATE AND
FEDERAL OBLIGATIONS.  IN THE LIGHT OF ALL THE CIRCUMSTANCES WHICH MUST
HAVE BEEN OBVIOUS TO THE JUDGE PRESIDING IN THE COURTROOM, BUT ARE
INCAPABLE OF REPRODUCTION HERE, THE COURT GRANTED LEAVE TO THE
PETITIONER TO ENTER HIS PLEA OF GUILTY IN EACH CASE.  BEFORE SENTENCE
WAS PASSED, THE RECORD SHOWS THAT THE STATE'S ATTORNEY AND THE
PETITIONER, IN HIS OWN PROPER PERSON, CAME BEFORE THE COURT AND THE
PETITIONER "NOT SAYING ANYTHING FURTHER WHY THE JUDGMENT OF THE COURT
SHOULD NOT NOW BE PRONOUNCED  ...  " THE COURT PRONOUNCED, IN EACH
CASE, THE MANDATORY SENTENCE FOR THE CRIME TO WHICH THE PETITIONER HAD
PLEADED GUILTY.  ON THE FACTS THUS BEFORE US IN THESE RECORDS, WHICH
MUST BE OUR SOLE GUIDES IN THESE CASES, THERE IS NO GOOD REASON TO
DOUBT EITHER THE DUE PROCESS OR THE PROPRIETY OF THE PROCEDURE FOLLOWED
BY THE TRIAL COURT.  THERE IS NOTHING IN THE RECORDS ON WHICH TO BASE A
CLAIM THAT THE PETITIONER'S CONDUCT DID NOT FIT THE CHARGES MADE
AGAINST HIM.  THERE IS NOTHING IN THEM ON WHICH TO BASE A CLAIM OF
ABNORMALITY, INTOXICATION, OR INSANITY ON THE PART OF THE PETITIONER OR
ON WHICH TO BASE A CLAIM THAT THERE WAS ANY INDIGNATION, PREJUDICE OR
EMOTIONAL INFLUENCE AFFECTING THE CONDUCT OR THOUGHT OF ANYONE
CONNECTED WITH THESE TRIALS.  THE PRESENCE OF THE JUDGE, THE STATE'S
ATTORNEY, AND THE PETITIONER, TOGETHER WITH A NATURAL WISH ON THE PART
OF THE PETITIONER NOT TO EXPAND UPON THE SHAME OF THESE CRIMES, PROVIDE
NO GROUND FOR A CONCLUSION THAT THERE HAS BEEN ANY FAILURE, MUCH LESS
ANY CONSTITUTIONAL FAILURE, OF FAIR JUDICIAL PROCESS.  DOUBTS SHOULD BE
RESOLVED IN FAVOR OF THE INTEGRITY, COMPETENCE AND PROPER PERFORMANCE
OF THEIR OFFICIAL DUTIES BY THE JUDGE AND THE STATE'S ATTORNEY.  THEY
WERE STATE OFFICIALS LAWFULLY CHOSEN TO DISCHARGE SERIOUS PUBLIC
RESPONSIBILITIES UNDER THEIR OATHS OF OFFICE.  ESPECIALLY IN A SELF
GOVERNING STATE AND NATION, GOVERNMENTAL STABILITY DEPENDS UPON THE
GIVING OF FULL FAITH AND CREDIT IN FORM, SUBSTANCE AND SPIRIT TO PUBLIC
ACTS, RECORDS AND JUDICIAL PROCEEDINGS NOT ONLY AMONG THE STATES BUT
AMONG INDIVIDUALS AND BETWEEN THEIR STATE AND FEDERAL GOVERNMENTS. 

ALTHOUGH THE RECORDS DISCLOSE NO AFFIRMATIVE BASIS FOR INVALIDATING
THE SENTENCES, IT IS SUGGESTED THAT AN ERROR OF OMISSION APPEARS IN THE
FAILURE OF THE RECORDS TO SHOW EITHER THE PRESENCE OF COUNSEL FOR THE
ACCUSED, OR AN INQUIRY BY THE COURT AS TO COUNSEL FOR THE ACCUSED, OR
THE APPOINTMENT OF COUNSEL BY THE COURT TO ASSIST THE ACCUSED.  HERE
ALSO IF ANY PRESUMPTION IS TO BE INDULGED IT SHOULD BE ONE OF
REGULARITY RATHER THAN THAT OF IRREGULARITY.  EIGHT YEARS AFTER THE
TRIAL, IN THE COMPLETE ABSENCE OF ANY SHOWING TO THE CONTRARY, SUCH A
PRESUMPTION OF REGULARITY INDICATES THAT THE COURT CONSTITUTIONALLY
DISCHARGED, RATHER THAN UNCONSTITUTIONALLY DISREGARDED, ITS STATE AND
FEDERAL DUTIES TO THE PETITIONER, INCLUDING THOSE RELATING TO HIS
RIGHT, IF ANY, TO THE ASSISTANCE OF COUNSEL.  PEOPLE V. FUHS, 390 ILL.
67, 60 N.E.2D 205.  IT IS NOT NECESSARY, HOWEVER, FOR US TO DEPEND UPON
SUCH A PRESUMPTION. 

IN THE LIGHT OF THE AFFIRMANCE OF THE INSTANT JUDGMENTS BY THE
SUPREME COURT OF ILLINOIS AND IN THE ABSENCE OF EVIDENCE TO THE
CONTRARY, IT IS CLEAR THAT THE TRIAL COURT AT LEAST DID NOT VIOLATE ANY
EXPRESS REQUIREMENTS OF ANY STATE STATUTES CALLING FOR AFFIRMATIVE
ACTION BY THE COURT.  PEOPLE V. RUSSELL, 394 ILL. 192, 67 N.E.2D 895;
PEOPLE V. STACK, 391 ILL. 15, 62 N.E.2D 807; PEOPLE V. FUHS, SUPRA;
PEOPLE V. BRANER, 389 ILL. 190, 58 N.E.2D 869; PEOPLE V. CORRIE, 387
ILL. 587, 56 N.E.2D 767; PEOPLE V. CORBETT, 387 ILL. 41, 55 N.E.2D 74;
PEOPLE V. CHILDERS, 386 ILL. 312, 53 N.E.2D 878.  IN VIEW OF THE
STATUTORY REQUIREMENTS PREVIOUSLY QUOTED (ILL. REV. STAT. C. 38, SEC.
730(1937)), THE SILENCE OF THE RECORDS AFFORDS ADEQUATE GROUND FOR THE
MINIMUM CONCLUSIONS THAT THE PETITIONER DID NOT REQUEST COUNSEL AND DID
NOT, UNDER OATH, STATE THAT HE, THE PETITIONER, WAS "UNABLE TO PROCURE
COUNSEL."  IN FACT, THE PETITIONER DOES NOT NOW CLAIM THAT HE DID
EITHER OF THOSE THINGS.  THE ISSUE IS, THEREFORE, WHETHER, IN THE
ABSENCE OF ANY REQUEST BY THE PETITIONER FOR COUNSEL AND, IN THE
ABSENCE OF ANY STATEMENT UNDER OATH BY THE PETITIONER THAT HE WAS
UNABLE TO PROCURE COUNSEL, THE COURT VIOLATED DUE PROCESS OF LAW UNDER
THE FOURTEENTH AMENDMENT BY THE PROCEDURE WHICH IT TOOK AND WHICH
ACCORDED WITH THE PROCEDURE APPROVED BY ILLINOIS FOR NONCAPITAL CASES
SUCH AS THESE.  THIS PROCEDURE CALLED UPON THE COURT TO USE ITS OWN
JUDGMENT IN THE LIGHT OF THE NATURE OF THE OFFENSES, THE AGE,
APPEARANCE, CONDUCT AND STATEMENTS OF THE PETITIONER IN COURT.  THESE
CIRCUMSTANCES INCLUDED THE PETITIONER'S PLEA OF GUILTY, PERSISTED IN
AFTER THE COURT'S ADMONISHMENT OF HIM AND EXPLANATION TO HIM OF THE
CONSEQUENCES AND PENALTIES INVOLVED IN HIS PLEA.  THE COURT THEREUPON
GRANTED LEAVE TO THE PETITIONER TO ENTER A PLEA OF GUILTY AND SUCH A
PLEA WAS ENTERED BY THE PETITIONER IN EACH CASE. 

IN THIS VIEW OF THE TWO CASES BEFORE US IT IS NOT NECESSARY TO
CONSIDER WHETHER THE PETITIONER, BY HIS PLEA OF GUILTY OR OTHERWISE,
AFFIRMATIVELY WAIVED ANY RIGHT TO THE ASSISTANCE OF COUNSEL IN HIS
DEFENSE, FOR, UNDER THESE CIRCUMSTANCES, NO CONSTITUTIONAL RIGHT TO
SUCH ASSISTANCE HAD ARISEN IN HIS FAVOR.  UNDER THE PROCEDURE FOLLOWED
BY THE TRIAL COURT, THERE WAS NO AFFIRMATIVE DUTY UPON IT, EITHER OF
STATE OR FEDERAL ORIGIN, TO DO MORE THAN IT DID.  IN THE PRESENT CASES
THE STATE STATUTE ALLOWED THE PETITIONER TO BE REPRESENTED BY COUNSEL
IF THE PETITIONER DESIRED TO BE SO REPRESENTED.  THE STATE STATUTE AND
PRACTICE, HOWEVER, DID NOT REQUIRE THAT THE ACCUSED MUST BE SO
REPRESENTED OR THAT THE TRIAL COURT MUST INITIATE INQUIRY INTO THE
PETITIONER'S DESIRES.  THE STATUTE DID REQUIRE THAT THE COURT MUST
ASSIGN COUNSEL TO CONDUCT THE DEFENSE FOR THE ACCUSED IF THE ACCUSED
STATED UNDER OATH THAT HE WAS UNABLE TO PROCURE COUNSEL.  THERE IS
NOTHING IN THESE RECORDS, HOWEVER, EITHER UNDER OATH OR OTHERWISE, TO
SHOW THAT THE PETITIONER, AT THE TIME OF TRIAL, EITHER DESIRED COUNSEL
OR WAS UNABLE TO PROCURE COUNSEL. 

THE FINAL QUESTION IS THEREFORE, WHETHER, EVEN IN THE ABSENCE OF ANY
STATE REQUIREMENT TO THAT EFFECT, THE PROVISION REQUIRING DUE PROCESS
OF LAW UNDER THE FOURTEENTH AMENDMENT, IN AND OF ITSELF, REQUIRED THE
COURT IN THESE CASES TO INITIATE AN INQUIRY INTO THE DESIRE OF THE
ACCUSED TO BE REPRESENTED BY COUNSEL, TO INQUIRE INTO THE ABILITY OF
THE ACCUSED TO PROCURE COUNSEL OR, IN THE EVENT OF THE INABILITY OF THE
ACCUSED TO PROCURE COUNSEL, TO ASSIGN COMPETENT COUNSEL TO THE ACCUSED
TO CONDUCT HIS DEFENSE.  WE RECOGNIZE THAT, IF THESE CHARGES HAD BEEN
CAPITAL CHARGES, THE COURT WOULD HAVE BEEN REQUIRED, BOTH BY THE STATE
STATUTE AND THE DECISIONS OF THIS COURT INTERPRETING THE FOURTEENTH
AMENDMENT, TO TAKE SOME SUCH STEPS. 

THESE, HOWEVER, WERE NOT CAPITAL CHARGES.  THEY WERE CHARGES OF THE
COMMISSION OF TWO ELEMENTARY OFFENSES, CARRYING MANDATORY SENTENCES OF
FROM ONE TO 20 YEARS EACH.  WE HAVE CONSIDERED THE SPECIAL
CIRCUMSTANCES AS SHOWN BY THESE RECORDS.  WE DO NOT FIND IN THEM
ADEQUATE GROUND FOR CONCLUDING THAT THE STATE COURT, BY FAILING TO TAKE
THE AFFIRMATIVE PROCEDURE SUGGESTED, VIOLATED DUE PROCESS OF LAW UNDER
THE FOURTEENTH AMENDMENT.  IN REACHING THIS CONCLUSION IT IS NOT
NECESSARY FOR US TO RELY UPON THE STATUTORY PROCEDURE OF ILLINOIS.  IT
IS APPROPRIATE, HOWEVER, FOR US TO CONSIDER THE ILLINOIS STATUTES AND
PRACTICE, AS WELL AS THE STATUTES AND PRACTICES OF OTHER STATES, AS
INDICATIVE THAT, IN THE JUDGMENT OF THE PEOPLE OF MANY OF THE STATES,
IT IS NOT NECESSARY TO REQUIRE FURTHER ASSURANCE OF ASSISTANCE OF
COUNSEL TO CONDUCT THE DEFENSE OF A PERSON ACCUSED OF CRIMES OF THIS
CHARACTER AND UNDER THESE CIRCUMSTANCES. 

IT IS ESTABLISHED THAT IT IS PERMISSIBLE AND WELL WITHIN "DUE PROCESS
OF LAW" FOR A PERSON, ACCUSED OF SUCH CRIMES, TO WAIVE HIS RIGHTS, IF
ANY, TO THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE, WHETHER OR NOT THE
ACCUSED ALSO SHALL PLEAD GUILTY.  FN22  IF SUCH WAIVER IS TO BE
EFFECTIVE, IT MUST BE INTELLIGENTLY, COMPETENTLY, UNDERSTANDINGLY AND
VOLUNTARILY MADE.  IN THE INSTANT CASES, THE ONLY EVIDENCE BEFORE US OF
ANY AFFIRMATIVE WAIVER OF A RIGHT TO THE ASSISTANCE OF COUNSEL, IF ANY
SUCH RIGHT EXISTED, APPEARS IN THE PETITIONER'S PLEAS OF GUILTY.  THERE
WAS, HOWEVER, NO NEED IN THESE CASES FOR A WAIVER BY THE PETITIONER OF
ADDITIONAL ACTION BY THE TRIAL COURT BECAUSE THE PETITIONER HAD NO
STATE OR FEDERAL RIGHT TO SUCH ACTION.  CONSEQUENTLY, IT IS NOT
NECESSARY TO INQUIRE INTO THE EFFECTIVENESS OF THE PETITIONER'S PLEAS
AS AMOUNTING TO WAIVERS OF COUNSEL, AS WELL AS ADMISSIONS OF GUILT. 

IT MAY BE THAT THE STATE LAWS OF SOME OTHER STATES WOULD HAVE
REQUIRED AFFIRMATIVE INQUIRIES TO HAVE BEEN MADE BY THE COURT.  IT MAY
BE THAT, SOME DAY, ALL OF THE STATES WILL HAVE ADOPTED PRACTICES
CORRESPONDING TO THE NEW RULE IN THE FEDERAL COURTS  FN23  OR TO THE
RECOMMENDATIONS OF THE AMERICAN LAW INSTITUTE, SUPRA.  HOWEVER, AS THE
MATTER NOW STANDS, THE STATES HAVE SUBSTANTIAL DISCRETION TO DETERMINE,
IN THE LIGHT OF THEIR RESPECTIVE HISTORIES AND NEEDS, MANY PRACTICES IN
THEIR CRIMINAL PROCEDURE, INCLUDING THIS PRACTICE. 

THE ISSUE IN THE INSTANT CASES IS ONLY WHETHER OR NOT THE ACTION
TAKEN BY THE STATE COURT VIOLATED THE FOURTEENTH AMENDMENT.  IN
ANSWERING THAT QUESTION IN THE NEGATIVE, THIS OPINION FOLLOWS THE
PRINCIPLES WHICH HAVE BEEN ANNOUNCED BY THIS COURT IN PASSING UPON
SOMEWHAT SIMILAR ISSUES WHERE THE ACCUSED HAS BEEN TRIED IN A STATE
COURT FOR A NONCAPITAL OFFENSE AND WHERE COMPLAINT HAS BEEN MADE THAT
THERE WAS VIOLATION OF DUE PROCESS OF LAW UNDER THE FOURTEENTH
AMENDMENT.  RECENTLY, THIS COURT SAID THAT, ALTHOUGH FAILURE TO ASSIGN
COUNSEL TO ASSIST AN ACCUSED IN HIS DEFENSE IN A FEDERAL COURT FOR A
NONCAPITAL CRIME MIGHT VIOLATE THE EXPRESS PROVISIONS OF THE SIXTH
AMENDMENT, THAT DID NOT MEAN THAT A LIKE FAILURE TO DO SO IN AN
ILLINOIS PROSECUTION FOR THE NONCAPITAL FELONY OF BURGLARY WOULD
VIOLATE DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT.  FOSTER V.
ILLINOIS, 332 U.S. 134.  A COMPARABLE CONCLUSION HAS BEEN REACHED UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS AS TO SELF-INCRIMINATION BY A
DEFENDANT IN A CRIMINAL CASE, PARTICULARLY IN RELATION TO THE RIGHT OF
COUNSEL FOR THE STATE TO COMMENT ON THE DEFENDANT'S FAILURE TO
TESTIFY.  ADAMSON V. CALIFORNIA, 332 U.S. 46.  REFUSAL BY A MARYLAND
COURT TO APPOINT COUNSEL REQUESTED BY THE ACCUSED TO ASSIST HIM IN HIS
DEFENSE AGAINST A CHARGE OF COMMISSION OF THE NON-CAPITAL FELONY OF
ROBBERY WAS HELD NOT TO VIOLATE THE FOURTEENTH AMENDMENT.  BETTS V.
BRADY, 316 U.S. 455.  IN THAT CASE THE COMMISSION OR NATURE OF THE
OFFENSE CHARGED WAS NOT THE ISSUE BECAUSE THE DEFENSE WAS MERELY THAT
OF AN ALIBI. 

ON THE OTHER HAND, THIS COURT REPEATEDLY HAS HELD THAT FAILURE TO
APPOINT COUNSEL TO ASSIST A DEFENDANT OR TO GIVE A FAIR OPPORTUNITY TO
THE DEFENDANT'S COUNSEL TO ASSIST HIM IN HIS DEFENSE WHERE CHARGED WITH
A CAPITAL CRIME IS A VIOLATION OF DUE PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT.  CARTER V. ILLINOIS, 329 U.S. 173; HAWK V. OLSON,
326 U.S. 271; TOMKINS V. MISSOURI, 323 U.S. 485; WILLIAMS V. KAISER,
323 U.S. 471; POWELL V. ALABAMA, 287 U.S. 45; MOORE V. DEMPSEY, 261
U.S. 86.  SEE ALSO, DE MEERLEER V. MICHIGAN, 329 U.S. 663(CONVICTED OF
FIRST DEGREE MURDER AND SENTENCED TO LIFE IMPRISONMENT). 

IN A NONCAPITAL STATE FELONY CASE, THIS COURT HAS RECOGNIZED THE
CONSTITUTIONAL RIGHT OF THE ACCUSED TO THE ASSISTANCE OF COUNSEL FOR
HIS DEFENSE WHEN THERE ARE SPECIAL CIRCUMSTANCES SHOWING THAT,
OTHERWISE, THE DEFENDANT WOULD NOT ENJOY THAT FAIR NOTICE AND ADEQUATE
HEARING WHICH CONSTITUTE THE FOUNDATION OF DUE PROCESS OF LAW IN THE
TRIAL OF ANY CRIMINAL CHARGE.  RICE V. OLSON, 324 U.S. 786.  IN THAT
CASE THE IMMEDIATE ISSUE WAS ONE OF WAIVER, BUT THE UNDERLYING QUESTION
INVOLVED A CHARGE OF BURGLARY AGAINST AN IGNORANT INDIAN, COUPLED WITH
A COMPLEX LEGAL ISSUE ARISING FROM THE CLAIM THAT THE CRIME WAS
COMMITTED ON AN INDIAN RESERVATION.  FOR DISCUSSIONS BEARING ON THE
ABSENCE OF DUE PROCESS RESULTING FROM THE INABILITY OF THE DEFENDANT,
INTELLIGENTLY AND COMPETENTLY, EITHER TO PLEAD GUILTY OR TO DEFEND
HIMSELF IN CERTAIN NONCAPITAL CASES SEE FOSTER V. ILLINOIS, 332 U.S.
134, 137-138; CANIZIO V. NEW YORK, 327 U.S. 82, 84-85(ROBBERY IN THE
FIRST DEGREE); HOUSE V. MAYO, 324 U.S. 42, 45-46(BURGLARY); SMITH V.
O'GRADY, 312 U.S. 329, 332-334(BURGLARY); POWELL V. ALABAMA, 287 U.S.
45, 70(DICTUM AS TO DEPORTATION CASES). 

FOR THE GOING REASONS, AND UNDER THE PRINCIPLES PREVIOUSLY ANNOUNCED
BY THIS COURT, THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS IS
AFFIRMED. 

FN1  "  ...  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."  U.S. CONST. AMEND.
XIV, SEC. 1. 

FN2  "  ...  ANY PERSON OF THE AGE OF SEVENTEEN YEARS AND UPWARDS WHO
SHALL TAKE, OR ATTEMPT TO TAKE, ANY IMMORAL, IMPROPER OR INDECENT
LIBERTIES WITH ANY CHILD OF EITHER SEX, UNDER THE AGE OF FIFTEEN YEARS,
WITH THE INTENT OF AROUSING, APPEALING TO OR GRATIFYING THE LUST OR
PASSIONS OR SEXUAL DESIRES, EITHER OF SUCH PERSON OR OF SUCH CHILD, OR
OF BOTH SUCH PERSON AND SUCH CHILD, ...  SHALL BE IMPRISONED IN THE
PENITENTIARY NOT LESS THAN ONE YEAR NOR MORE THAN TWENTY YEARS: ...  " 

FN3  AN INDICTMENT STATING THIS OFFENSE SUBSTANTIALLY IN THE LANGUAGE
OF THE STATUTE, THOUGH NOT SETTING OUT FACTS CONSTITUTING THE ELEMENTS
OF THE CRIME, WAS SUFFICIENT.  PEOPLE V. ROGERS, 324 ILL. 224, 229, 154
N.E. 909, 911; PEOPLE V. BUTLER, 268 ILL. 635, 641, 109 N.E. 677, 679;
PEOPLE V. SCATTURA, 238 ILL. 313, 314-315, 87 N.E. 332, 333. 

A COPY OF EACH INDICTMENT, WITH BOTH COUNTS ON THE SAME SHEET, WAS
FURNISHED TO THE PETITIONER AND THE DEVASTATING FRANKNESS OF THE SECOND
COUNT IN DESCRIBING THE ACTS COMPLAINED OF RENDERED IMPOSSIBLE ANY
MISUNDERSTANDING OF THE CHARGE.  THE PETITIONER DOES NOT CONTEND THAT
HE FAILED TO UNDERSTAND IT.  BY LEAVE OF COURT, THE STATE ENTERED
"NOLLE PROSEQUI" AS TO EACH SECOND COUNT. 

FN4  ONE LONG RECOGNIZED DIFFERENCE BETWEEN THE TRIAL PROCEDURE IN
THE FEDERAL COURTS AND THAT IN MANY STATE COURTS IS THE GREATER FREEDOM
THAT IS ALLOWED TO A FEDERAL COURT, AS COMPARED WITH THAT ALLOWED TO A
STATE COURT, TO COMMENT UPON THE EVIDENCE WHEN SUBMITTING A CASE TO A
JURY.  SEE QUERCIA V. UNITED STATES, 289 U.S. 466, 469; PATTON V.
UNITED STATES, 281 U.S. 276, 288; SIMMONS V. UNITED STATES, 142 U.S.
148, 155.  THE FEDERAL PRACTICE IS BASED UPON THE RULES OF COMMON LAW
COMPARABLE TO THOSE MENTIONED IN THE SEVENTH AMENDMENT.  THE FEDERAL
AND STATE PRACTICES HAVE THEIR RESPECTIVE PROPONENTS AND OPPONENTS, BUT
BOTH PRACTICES UNQUESTIONABLY REPRESENT "DUE PROCESS OF LAW." 

FN5  SEE THE FEDERALIST, NUMBER XLIV, RESTRICTIONS ON THE AUTHORITY OF
THE SEVERAL STATES; NUMBER XLV, THE ALLEGED DANGER FROM THE POWERS OF
THE UNION TO THE STATE GOVERNMENTS CONSIDERED; NUMBER XLVI, THE
INFLUENCE OF THE STATE AND FEDERAL GOVERNMENTS COMPARED. 

FN6  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED. 

"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. 

"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE
BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE. 

"IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED
TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED, AND NO
FACT TRIED BY A JURY, SHALL BE OTHERWISE RE-EXAMINED IN ANY COURT OF
THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW. 

"EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR EXCESSIVE FINES IMPOSED,
NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED."  U.S. CONST. AMEND. IV,
V, VI, VII AND VIII. 

FN7  "THE ENUMERATION IN THE CONSTITUTION, OF CERTAIN RIGHTS, SHALL
NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE. 
"THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION, NOR
PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES
RESPECTIVELY, OR TO THE PEOPLE."  U.S. CONST. AMEND. IX AND X. 

FN8  U.S. CONST. AMEND. X, NOTE 7, SUPRA. 

FN9  "  ...  DUE PROCESS OF LAW IN THE LATTER (I.E., THE FIFTH
AMENDMENT) REFERS TO THAT LAW OF THE LAND WHICH DERIVES ITS AUTHORITY
FROM THE LEGISLATIVE POWERS CONFERRED UPON CONGRESS BY THE CONSTITUTION
OF THE UNITED STATES, EXERCISED WITHIN THE LIMITS THEREIN PRESCRIBED,
AND INTERPRETED ACCORDING TO THE PRINCIPLES OF THE COMMON LAW.  IN THE
FOURTEENTH AMENDMENT, BY PARITY OF REASON, IT REFERS TO THAT LAW OF THE
LAND IN EACH STATE, WHICH DERIVES ITS AUTHORITY FROM THE INHERENT AND
RESERVED POWERS OF THE STATE, EXERTED WITHIN THE LIMITS OF THOSE
FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF
ALL OUR CIVIL AND POLITICAL INSTITUTIONS, AND THE GREATEST SECURITY FOR
WHICH RESIDES IN THE RIGHT OF THE PEOPLE TO MAKE THEIR OWN LAWS, AND
ALTER THEM AT THEIR PLEASURE."  HURTADO V. CALIFORNIA, 110 U.S. 516,
535. 

FN10  ARTICLE VIII OF THE ILLINOIS CONSTITUTION OF 1818 CONTAINED 23
FEDERAL BILL OF RIGHTS.  ON THE SUBJECT OF "DUE PROCESS" IT INCLUDED
THE FOLLOWING: 

"SEC. 8.  THAT NO FREEMAN SHALL BE IMPRISONED OR DISSEIZED OF HIS
FREEHOLD, LIBERTIES OR PRIVILEGES, OR OUTLAWED OR EXILED, OR IN ANY
MANNER DEPRIVED OF HIS LIFE, LIBERTY OR PROPERTY, BUT BY THE JUDGMENT
OF HIS PEERS OR THE LAW OF THE LAND.  ...  " 

FN11  ARTICLE XIII OF THE ILLINOIS CONSTITUTION OF 1848 CONTAINED THE
FOLLOWING: 

"THAT THE GENERAL, GREAT AND ESSENTIAL PRINCIPLES OF LIBERTY AND FREE
GOVERNMENT MAY BE RECOGNIZED AND UNALTERABLY ESTABLISHED, WE DECLARE: 

     .         .         .    .         . 

"SEC. 8.  THAT NO FREEMAN SHALL BE IMPRISONED OR DISSEIZED OF HIS
FREEHOLD, LIBERTIES OR PRIVILEGES, OR OUTLAWED OR EXILED, OR IN ANY
MANNER DEPRIVED OF HIS LIFE, LIBERTY, OR PROPERTY, BUT BY THE JUDGMENT
OF HIS PEERS, OR THE LAW OF THE LAND. 

"SEC. 9.  THAT IN ALL CRIMINAL PROSECUTIONS THE ACCUSED HATH A RIGHT
TO BE HEARD BY HIMSELF AND COUNSEL; TO DEMAND THE NATURE AND CAUSE OF
THE ACCUSATION AGAINST HIM; TO MEET THE WITNESSES FACE TO FACE; TO HAVE
COMPULSORY PROCESS TO COMPEL THE ATTENDANCE OF WITNESSES IN HIS FAVOR;
AND IN PROSECUTIONS BY INDICTMENT OR INFORMATION, TO SPEEDY PUBLIC
TRIAL BY AN IMPARTIAL JURY OF THE COUNTY OR DISTRICT WHEREIN THE
OFFENSE SHALL HAVE BEEN COMMITTED, WHICH COUNTY OR DISTRICT SHALL HAVE
BEEN PREVIOUSLY ASCERTAINED BY LAW, AND THAT HE SHALL NOT BE COMPELLED
TO GIVE EVIDENCE AGAINST HIMSELF."  REPRINTED IN ILL. REV. STAT.
(1937). 

FN12  FOR HISTORICAL TREATMENTS OF THE SIXTH AND FOURTEENTH
AMENDMENTS IN DECISIONS OF THIS COURT IN RELATION TO THE GENERAL
SUBJECT MATTER OF THE INSTANT CASES SEE ESPECIALLY, ADAMSON V.
CALIFORNIA, 332 U.S. 468 CONCURRING OPINION PP. 61-68, DISSENTING
OPINION PP. 68-123; BETTS V. BRADY, 316 U.S. 455, 464-472, DISSENTING
OPINION PP. 477-480; JOHNSON V. ZERBST, 304 U.S. 458, 462-463; PALKO V.
CONNECTICUT, 302 U.S. 319, 322-328; POWELL V. ALABAMA, 287 U.S. 45, 59
69; HURTADO V. CALIFORNIA, 110 U.S. 516, 520-538, DISSENTING OPINION
PP. 538-558; DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 100-104. 

FN13  A CLASSIC STATEMENT OF WHY IT IS DUE PROCESS TO DO MANY THINGS
IN THE STATE COURTS, PARTICULARLY OF A PROCEDURAL NATURE, THAT MAY NOT
BE DONE IN FEDERAL COURTS BECAUSE OF THE SPECIFIC PROCEDURAL
REQUIREMENTS OF THE FEDERAL BILL OF RIGHTS WAS MADE BY MR. JUSTICE
CARDOZO IN THE LIGHT OF HIS LONG EXPERIENCE IN STATE COURTS. 

"WE HAVE SAID THAT IN APPELLANT'S VIEW THE FOURTEENTH AMENDMENT IS TO
BE TAKEN AS EMBODYING THE PROHIBITIONS OF THE FIFTH.  HIS THESIS IS
EVEN BROADER.  WHATEVER WOULD BE A VIOLATION OF THE ORIGINAL BILL OF
RIGHTS (AMENDMENTS I TO VIII) IF DONE BY THE FEDERAL GOVERNMENT IS NOW
EQUALLY UNLAWFUL BY FORCE OF THE FOURTEENTH AMENDMENT IF DONE BY A
STATE.  THERE IS NO SUCH GENERAL RULE. 

"THE FIFTH AMENDMENT PROVIDES, AMONG OTHER THINGS, THAT NO PERSON
SHALL BE HELD TO ANSWER FOR A CAPITAL OR OTHERWISE INFAMOUS CRIME
UNLESS ON PRESENTMENT OR INDICTMENT OF A GRAND JURY.  THIS COURT HAS
HELD THAT, IN PROSECUTIONS BY A STATE, PRESENTMENT OR INDICTMENT BY A
GRAND JURY MAY GIVE WAY TO INFORMATIONS AT THE INSTANCE OF A PUBLIC
OFFICER.  HURTADO V. CALIFORNIA, 110 U.S. 516; GAINES V. WASHINGTON,
277 U.S. 81, 86.  THE FIFTH AMENDMENT PROVIDES ALSO THAT NO PERSON
SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF.  THIS COURT HAS SAID THAT, IN PROSECUTIONS BY A STATE, THE
EXEMPTION WILL FAIL IF THE STATE ELECTS TO END IT.  TWINING V. NEW
JERSEY, 211 U.S. 78, 106, 111, 112.  CF. SNYDER V. MASSACHUSETTS,
SUPRA, P. 105; BROWN V. MISSISSIPPI, 297 U.S. 278, 285.  THE SIXTH
AMENDMENT CALLS FOR A JURY TRIAL IN CRIMINAL CASES AND THE SEVENTH FOR
A JURY TRIAL IN CIVIL CASES AT COMMON LAW WHERE THE VALUE IN
CONTROVERSY SHALL EXCEED TWENTY DOLLARS.  THIS COURT HAS RULED THAT
CONSISTENTLY WITH THOSE AMENDMENTS TRIAL BY JURY MAY BE MODIFIED BY A
STATE OR ABOLISHED ALTOGETHER.  WALKER V. SAUVINET, 92 U.S. 90; MAXWELL
V. DOW, 176 U.S. 581; NEW YORK CENTRAL R. CO. V. WHITE, 243 U.S. 188,
208; WAGNER ELECTRIC MFG. CO. V. LYNDON, 262 U.S. 226, 232.  AS TO THE
FOURTH AMENDMENT, ONE SHOULD REFER TO WEEKS V. UNITED STATES, 232 U.S.
383, 398, AND AS TO OTHER PROVISIONS OF THE SIXTH, TO WEST V.
LOUISIANA, 194 U.S. 258."  PALKO V. CONNECTICUT, 302 U.S. 319, 323
324. 

FN14  ART. II, SEC. 2, OF THE ILLINOIS CONSTITUTION OF 1870, SUPRA. 

FN15  SEE NOTE 6, SUPRA.  "BY VIRTUE OF THAT PROVISION (IN THE SIXTH
AMENDMENT), COUNSEL MUST BE FURNISHED TO AN INDIGENT DEFENDANT
PROSECUTED IN A FEDERAL COURT IN EVERY CASE, WHATEVER THE
CIRCUMSTANCES."  FOSTER V. ILLINOIS, 332 U.S. 134, 136-137.  SEE ALSO,
BETTS V. BRADY, 316 U.S. 455, 461, 464-465; GLASSER V. UNITED STATES,
315 U.S. 60, 70; JOHNSON V. ZERBST, 304 U.S. 458; PALKO V. CONNECTICUT,
302 U.S. 319, 327. 

FN16  "IN ALL THE COURTS OF THE UNITED STATES THE PARTIES MAY PLEAD
AND MANAGE THEIR OWN CAUSES PERSONALLY, OR BY THE ASSISTANCE OF SUCH
COUNSEL OR ATTORNEYS AT LAW AS, BY THE RULES OF THE SAID COURTS,
RESPECTIVELY, ARE PERMITTED TO MANAGE AND CONDUCT CAUSES THEREIN." 
JUD.  CODE, SEC. 272, 36 STAT. 1164, 28 U.S.C. SEC. 394. 

THIS IS ALMOST VERBATIM AS IT WAS ENACTED AS SEC. 35 IN THE FIRST
JUDICIARY ACT, SEPTEMBER 24, 1789, 1 STAT. 92. 

"EVERY PERSON WHO IS INDICTED OF TREASON OR OTHER CAPITAL CRIME,
SHALL BE ALLOWED TO MAKE HIS FULL DEFENSE BY COUNSEL LEARNED IN THE
LAW; AND THE COURT BEFORE WHICH HE IS TRIED, OR SOME JUDGE THEREOF,
SHALL IMMEDIATELY, UPON HIS REQUEST, ASSIGN TO HIM SUCH COUNSEL, NOT
EXCEEDING TWO, AS HE MAY DESIRE, AND THEY SHALL HAVE FREE ACCESS TO HIM
AT ALL SEASONABLE HOURS.  ...  " R.S. SEC. 1034, 18 U.S.C. SEC. 563. 

THIS CONFORMS CLOSELY TO SEC. 29 IN THE FIRST FEDERAL CRIMES ACT,
APPROVED APRIL 30, 1790, 1 STAT. 118. 

FN17  "IT IS PROBABLY SAFE TO SAY THAT FROM ITS ADOPTION IN 1791
UNTIL 1938, THE RIGHT CONFERRED ON THE ACCUSED BY THE SIXTH AMENDMENT
'TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE' WAS GENERALLY
UNDERSTOOD AS MEANING THAT IN THE FEDERAL COURTS THE DEFENDANT IN A
CRIMINAL CASE WAS ENTITLED TO BE REPRESENTED BY COUNSEL RETAINED BY
HIM.  IT WAS NOT ASSUMED THAT THIS CONSTITUTIONAL PRIVILEGE COMPRISED
THE RIGHT OF A PRISONER TO HAVE COUNSEL ASSIGNED TO HIM BY THE COURT
IF, FOR FINANCIAL OR OTHER REASONS, HE WAS UNABLE TO RETAIN COUNSEL. 
THE SIXTH AMENDMENT WAS NOT REGARDED AS IMPOSING ON THE TRIAL JUDGE IN
A FEDERAL COURT THE DUTY TO APPOINT COUNSEL FOR AN INDIGENT DEFENDANT. 

     .         .         .         .     . 

"THE MARKED DEPARTURE EFFECTED BY THE DECISION IN JOHNSON V. ZERBST
CREATED A PRACTICAL DIFFICULTY IN RESPECT TO CASES PREVIOUSLY TRIED. 
NO OBSTACLE EXISTED IN CONNECTION WITH THE APPLICATION OF THIS RULING
TO SUBSEQUENT PROCEEDINGS."  HOLTZOFF, THE RIGHT OF COUNSEL UNDER THE
SIXTH AMENDMENT, 20 N.Y.U.L.Q. REV. 1, 7-8, 10(1944). 

AT THE TIME OF MAKING THE ABOVE STATEMENT, JUDGE HOLTZOFF WAS THE
SECRETARY FOR THE ADVISORY COMMITTEE ON FEDERAL RULES OF CRIMINAL
PROCEDURE. 

FN18  "RULE 44.  ASSIGNMENT OF COUNSEL.  IF THE DEFENDANT APPEARS IN
COURT WITHOUT COUNSEL, THE COURT SHALL ADVISE HIM OF HIS RIGHT TO
COUNSEL AND ASSIGN COUNSEL TO REPRESENT HIM AT EVERY STAGE OF THE
PROCEEDING UNLESS HE ELECTS TO PROCEED WITHOUT COUNSEL OR IS ABLE TO
OBTAIN COUNSEL."  FED. R. CRIM. P., EFFECTIVE MARCH 21, 1946, 327 U.S.
866-867, 18 U.S.C. 1946 ED., FOLLOWING SEC. 687. 

"THIS RULE IS A RESTATEMENT OF EXISTING LAW IN REGARD TO THE
DEFENDANT'S CONSTITUTIONAL RIGHT OF COUNSEL AS DEFINED IN RECENT
JUDICIAL DECISIONS.   ...  THE PRESENT EXTENT OF THE RIGHT OF COUNSEL
HAS BEEN DEFINED RECENTLY IN JOHNSON V. ZERBST, 304 U.S. 458; WALKER V.
JOHNSTON, 312 U.S. 275; AND GLASSER V. UNITED STATES, 315 U.S. 60.  THE
RULE IS A RESTATEMENT OF THE PRINCIPLES ENUNCIATED IN THESE
DECISIONS."  NOTES TO THE RULES OF CRIMINAL PROCEDURE FOR THE DISTRICT
COURTS OF THE UNITED STATES, AS PREPARED UNDER THE DIRECTION OF THE
ADVISORY COMMITTEE ON RULES OF CRIMINAL PROCEDURE, MARCH, 1945, P.
38(REVISED EDITION, PP. 40-41). 

FN19  THE TABULATIONS SHOW THAT, AS OF 1930, 13 STATES "PROVIDE THAT
IF THE DEFENDANT APPEAR FOR ARRAIGNMENT WITHOUT COUNSEL HE SHALL BE
INFORMED BY THE COURT THAT IT IS HIS RIGHT TO HAVE COUNSEL BEFORE BEING
ARRAIGNED, AND HE SHALL BE ASKED IF HE DESIRE THE AID OF COUNSEL."  SIX
STATES "PROVIDE THAT THE ACCUSED HAS A RIGHT TO COUNSEL:  ...  "
EIGHTEEN STATES, INCLUDING ILLINOIS, PROVIDE UNDER VARYING CONDITIONS
"THAT THE COURT SHALL ASSIGN COUNSEL IF THE ACCUSED DESIRE IT, AND BE
UNABLE TO EMPLOY COUNSEL:  ...  "  FIFTEEN STATES, INCLUDING ILLINOIS,
PROVIDE UNDER VARYING CONDITIONS "THAT THE COURT SHALL ASSIGN COUNSEL
IF THE ACCUSED BE UNABLE TO EMPLOY COUNSEL:  ...  "  BOTH ILLINOIS AND
LOUISIANA REQUIRED A SHOWING OF INABILITY TO BE MADE BY THE ACCUSED
UNDER OATH.  FIVE STATES "PROVIDE THAT THE COURT SHALL ASSIGN COUNSEL
IF ACCUSED DESIRE IT:  ... "  THREE STATES PROVIDE THAT THE COURT MAY
APPOINT ONE OR MORE ATTORNEYS TO REPRESENT THE ACCUSED AND 14 "PROVIDE
THAT THE APPOINTMENT OF COUNSEL BY THE COURT FOR DEFENSE OF THE ACCUSED
SHALL NOT EXCEED TWO:  ...  "  THIRTEEN STATES "PROVIDE THAT COUNSEL
FOR THE DEFENSE SHALL HAVE FREE ACCESS TO THE PRISONER AT ALL
REASONABLE HOURS:  ...  "  CODE OF CRIMINAL PROCEDURE, COMMENTARY TO
SEC. 203(1930) 630-634. 

FN20  THIS COURT SUMMARIZED THOSE CIRCUMSTANCES AS FOLLOWS: 

"IN THIS CASE THERE WAS NO QUESTION OF THE COMMISSION OF A ROBBERY. 
THE STATE'S CASE CONSISTED OF EVIDENCE IDENTIFYING THE PETITIONER AS
THE PERPETRATOR.  THE DEFENSE WAS AN ALIBI.  PETITIONER CALLED AND
EXAMINED WITNESSES TO PROVE THAT HE WAS AT ANOTHER PLACE AT THE TIME OF
THE COMMISSION OF THE OFFENSE.  THE SIMPLE ISSUE WAS THE VERACITY OF
THE TESTIMONY FOR THE STATE AND THAT FOR THE DEFENDANT.  AS JUDGE BOND
SAYS, THE ACCUSED WAS NOT HELPLESS, BUT WAS A MAN FORTY-THREE YEARS
OLD, OF ORDINARY INTELLIGENCE, AND ABILITY TO TAKE CARE OF HIS OWN
INTERESTS ON THE TRIAL OF THAT NARROW ISSUE.  HE HAD ONCE BEFORE BEEN
IN A CRIMINAL COURT, PLEADED GUILTY TO LARCENY AND SERVED A SENTENCE
AND WAS NOT WHOLLY UNFAMILIAR WITH CRIMINAL PROCEDURE."  ID. AT P.
472. 

FN21  THE COURT ALSO REVIEWED THE MATERIAL CONSTITUTIONAL AND
STATUTORY PROVISIONS OF THE THIRTEEN ORIGINAL STATES.  ID. AT P. 467. 
IT THEN SUMMARIZED AS FOLLOWS OTHER CONSTITUTIONAL AND STATUTORY
PROVISIONS CURRENTLY IN FORCE: 

"THE CONSTITUTIONS OF ALL THE STATES, PRESENTLY IN FORCE, SAVE THAT
OF VIRGINIA, CONTAIN PROVISIONS WITH RESPECT TO THE ASSISTANCE OF
COUNSEL IN CRIMINAL TRIALS.  THOSE OF NINE STATES MAY BE SAID TO EMBODY
A GUARANTEE TEXTUALLY THE SAME AS THAT OF THE SIXTH AMENDMENT, OR OF
LIKE IMPORT.  IN THE FUNDAMENTAL LAW OF MOST STATES, HOWEVER, THE
LANGUAGE USED INDICATES ONLY THAT A DEFENDANT IS NOT TO BE DENIED THE
PRIVILEGE OF REPRESENTATION BY COUNSEL OF HIS CHOICE. 

.         .         .         .         . 

"IN EIGHTEEN STATES THE STATUTES NOW REQUIRE THE COURT TO APPOINT IN
ALL CASES WHERE DEFENDANTS ARE UNABLE TO PROCURE COUNSEL.  ...  AND IT
SEEMS TO HAVE BEEN ASSUMED BY MANY LEGISLATURES THAT THE MATTER WAS ONE
FOR REGULATION FROM TIME TO TIME AS DEEMED NECESSARY, SINCE LAWS
REQUIRING APPOINTMENT IN ALL CASES HAVE BEEN MODIFIED TO REQUIRE IT
ONLY IN THE CASE OF CERTAIN OFFENSES."  ID. AT PP. 467-468, 470-471. 

PARTICULARLY FROM THE FAILURE OF THE STATES TO TREAT THE REQUIREMENT
OF INQUIRY BY THE COURT AS TO COUNSEL OR THE REQUIREMENT OF APPOINTMENT
OF COUNSEL, EITHER UNIFORMLY OR AS A MATTER FOR INCORPORATION IN THE
STATE CONSTITUTIONS, THE COURT CONCLUDED - 

"WE ARE UNABLE TO SAY THAT THE CONCEPT OF DUE PROCESS INCORPORATED IN
THE FOURTEENTH AMENDMENT OBLIGATES THE STATES, WHATEVER MAY BE THEIR
OWN VIEWS, TO FURNISH COUNSEL IN EVERY SUCH CASE.  EVERY COURT HAS
POWER, IF IT DEEMS PROPER, TO APPOINT COUNSEL WHERE THAT COURSE SEEMS
TO BE REQUIRED IN THE INTEREST OF FAIRNESS."  ID. AT PP. 471-472. 
THE DISSENTING OPINION ALSO MARSHALS THE STATES AND COLLECTS THEM UNDER
THE FOLLOWING HEADINGS: 35 STATES, INCLUDING ILLINOIS, BY
CONSTITUTIONAL OR STATUTORY PROVISION OR BY JUDICIAL DECISION OR
ESTABLISHED PRACTICE JUDICIALLY APPROVED, REQUIRE "THAT INDIGENT
DEFENDANTS IN NON-CAPITAL AS WELL AS CAPITAL CRIMINAL CASES BE PROVIDED
WITH COUNSEL ON REQUEST:..."  OF THE REMAINING 13, NINE "ARE WITHOUT
CONSTITUTIONAL PROVISION, STATUTES, OR JUDICIAL DECISIONS CLEARLY
ESTABLISHING THIS REQUIREMENT:  ...  "; THERE ARE TWO STATES "IN WHICH
DICTA OF JUDICIAL OPINIONS ARE IN HARMONY WITH THE DECISION BY THE
COURT BELOW IN THIS CASE:  ...  "  (HERE AFFIRMED); AND THERE ARE TWO
STATES "IN WHICH THE REQUIREMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN
NON-CAPITAL CASES HAS BEEN AFFIRMATIVELY REJECTED:  ...  "  ID. AT PP.
477-480.  FOR THE INSTANT CASES, THE IMPORTANT POINT IS THAT THIS
TABULATION SHOWS THAT ONLY 35 STATES REQUIRED THE APPOINTMENT OF
COUNSEL FOR INDIGENT DEFENDANTS IN NONCAPITAL CASES, EVEN UPON THE
ACCUSED'S REQUEST FOR SUCH APPOINTMENT.  NO SUCH REQUEST WAS PRESENT
HERE. 

FN22  CARTER V. ILLINOIS, 329 U.S. 173, 174-175; RICE V. RICE V.
OLSON, 324 U.S. 786, 788-789; ADAMS V. UNITED STATES EX REL. MCCANN,
317 U.S. 269, 276-279; WALKER V. JOHNSTON, 312 U.S. 275, 286; JOHNSON
V. ZERBST, 304 U.S. 458, 464, 467-469.  SEE THE RIGHT TO BENEFIT OF
COUNSEL UNDER THE FEDERAL CONSTITUTION, 42 COL. L. REV. 271, 277
280(1942). 

FN23  SEE NOTE 17, SUPRA. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE MURPHY
AND MR. JUSTICE RUTLEDGE CONCUR, DISSENTING. 

IN CONSIDERING CASES LIKE THIS AND THE ILL-STARRED DECISION IN BETTS
V. BRADY,  FN1  316 U.S. 455, WE SHOULD ASK OURSELVES THIS QUESTION:
OF WHAT VALUE IS THE CONSTITUTIONAL GUARANTY OF A FAIR TRIAL IF AN
ACCUSED DOES NOT HAVE COUNSEL TO ADVISE AND DEFEND HIM? 

THE FRAMERS DEEMED THE RIGHT OF COUNSEL INDISPENSABLE, FOR THEY WROTE
INTO THE SIXTH AMENDMENT THAT IN ALL CRIMINAL PROSECUTIONS THE ACCUSED
"SHALL ENJOY THE RIGHT  ...  TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENCE."  HENCE, IF THIS CASE HAD BEEN TRIED IN THE FEDERAL COURT,
APPOINTMENT OF COUNSEL WOULD HAVE BEEN MANDATORY, EVEN THOUGH BUTE DID
NOT REQUEST IT.  SEE JOHNSON V. ZERBST, 304 U.S. 458, 463.  I DO NOT
THINK THE CONSTITUTIONAL STANDARDS OR FAIRNESS DEPEND ON WHAT COURT AN
ACCUSED IS IN.  I THINK THAT THE BILL OF RIGHTS IS APPLICABLE TO ALL
COURTS AT ALL TIMES.  MR. JUSTICE BLACK DEMONSTRATED IN HIS DISSENT IN
ADAMSON V. CALIFORNIA, 332 U.S. 46, 68, 71, THAT A CHIEF PURPOSE OF THE
FOURTEENTH AMENDMENT WAS TO PROTECT THE SAFEGUARDS OF THE BILL OF
RIGHTS AGAINST INVASION BY THE STATES.  IF DUE PROCESS AS DEFINED IN
THE BILL OF RIGHTS REQUIRES APPOINTMENT OF COUNSEL TO REPRESENT
DEFENDANTS IN FEDERAL PROSECUTIONS, DUE PROCESS DEMANDS THAT THE SAME
BE DONE IN STATE PROSECUTIONS.  THE BASIC REQUIREMENTS FOR FAIR TRIALS
ARE THOSE WHICH THE FRAMERS DEEMED SO IMPORTANT TO PROCEDURAL DUE
PROCESS THAT THEY WROTE THEM INTO THE BILL OF RIGHTS AND THUS MADE IT
IMPOSSIBLE FOR EITHER LEGISLATURES OR COURTS TO TINKER WITH THEM.  I
FAIL TO SEE WHY IT IS DUE PROCESS TO DENY AN ACCUSED THE BENEFIT OF
COUNSEL IN A STATE COURT WHEN BY CONSTITUTIONAL STANDARDS THAT BENEFIT
COULD NOT BE WITHHELD FROM HIM IN A FEDERAL COURT. 

BUT IF WE TAKE THE VIEW MORE HOSTILE TO THE RIGHTS OF THE INDIVIDUAL
AND ASSUME THAT PROCEDURAL DUE PROCESS GUARANTEED BY THE FOURTEENTH
AMENDMENT PROVIDES LESSER SAFEGUARDS THAN THOSE OF THE BILL OF RIGHTS,
THE RESULT SHOULD BE THE SAME.  THEN THE QUESTION IS WHETHER THE
APPOINTMENT OF COUNSEL FOR BUTE WAS REQUIRED "BY NATURAL, INHERENT, AND
FUNDAMENTAL PRINCIPLES OF FAIRNESS."  BETTS V. BRADY, SUPRA, P. 464. 

ILLINOIS ALLOWS COUNSEL TO EVERYONE CHARGED WITH CRIME.  TO OBTAIN
COUNSEL, HOWEVER, THE ACCUSED HAS TO ASK FOR ONE AND ALSO TO STATE UPON
OATH THAT HE IS UNABLE TO PROCURE COUNSEL.  FN2  PEOPLE V. VAN HORN,
396 ILL. 496, 498, 72 N.E.2D 187, 188.  BUT, AS HELD BY THE ILLINOIS
SUPREME COURT IN THE PRESENT CASE, THE COURT NEED NOT ADVISE HIM OF HIS
RIGHT TO COUNSEL.  FN3 THE ILLINOIS RULE APPARENTLY PROCEEDS FROM THE
PREMISE THAT THE AVERAGE PERSON KNOWS OF HIS RIGHT TO COUNSEL AND
RESORTS TO AN ATTORNEY IN CASE HE GETS CAUGHT IN THE TOILS OF THE LAW. 
THAT VIEW, IF LOGICALLY APPLIED, WOULD NOT REQUIRE APPOINTMENT OF
COUNSEL IN ANY CASE - CAPITAL OR OTHERWISE.  FOR A MAN CHARGED WITH
MURDER USUALLY KNOWS WHETHER OR NOT IT WAS HIS BLOW OR SHOT THAT KILLED
THE DECEASED AND THEREFORE WHETHER HE IS UNJUSTLY ACCUSED.  AND HE
CERTAINLY KNOWS HE IS IN SERIOUS TROUBLE WHEN HE IS FACED WITH SUCH A
CHARGE.  THE LOGIC OF THE ILLINOIS VIEW WOULD LEAD TO THE CONCLUSION
THAT THE AVERAGE MAN IN THOSE CIRCUMSTANCES WOULD KNOW ENOUGH TO DEMAND
A LAWYER TO DEFEND HIM AND THAT THE COURT NEED NOT OFFER ONE TO HIM. 

FORTUNATELY FOR THE LIBERAL TRADITION THE LAW HAS FOLLOWED A
DIFFERENT COURSE.  AT LEAST WHERE THE OFFENSE CHARGED IS A CAPITAL ONE,
DUE PROCESS REQUIRES APPOINTMENT OF COUNSEL IN STATE AS WELL AS IN
FEDERAL PROSECUTIONS.  POWELL V. ALABAMA, 287 U.S. 45; WILLIAMS V.
KAISER, 323 U.S. 471; DE MEERLEER V. MICHIGAN, 329 U.S. 663.  THE
REASON IS THAT THE GUILTY AS WELL AS THE INNOCENT ARE ENTITLED TO A
FAIR TRIAL, THAT A LAYMAN WITHOUT THE EXPERIENCE AND SKILL OF COUNSEL
TO GUIDE HIM MAY GET LOST IN THE INTRICACIES OF THE LAW AND LOSE
ADVANTAGES WHICH IT EXTENDS TO EVERY ACCUSED, THAT WITHOUT EXPERT
APPRAISAL OF THE CIRCUMSTANCES SURROUNDING HIS ARREST, DETENTION,
ARRAIGNMENT, AND CONVICTION THE PENALTIES HE SUFFERS MAY BE AGGRAVATED
BY HIS OWN IGNORANCE OR BY OVERREACHING OF THE PROSECUTION OR POLICE. 
FN4  HENCE THE NEED FOR COUNSEL EXISTS IN CAPITAL CASES WHETHER THE
ACCUSED CONTESTS THE CHARGE AGAINST HIM OR PLEADS GUILTY.  FOSTER V.
ILLINOIS, 332 U.S. 134, 137. 

THOSE CONSIDERATIONS ARE EQUALLY GERMANE THOUGH LIBERTY RATHER THAN
LIFE HANGS IN THE BALANCE.  CERTAINLY DUE PROCESS SHOWS NO LESS
SOLICITUDE FOR LIBERTY THAN FOR LIFE.  A MAN FACING A PRISON TERM MAY,
INDEED, HAVE AS MUCH AT STAKE AS LIFE ITSELF. 

BUTE WAS CHARGED WITH A MOST REPULSIVE CRIME.  IT MAY SEEM EASY TO
SAY THAT IT IS A SIMPLE AND UNCOMPLICATED ONE, AND THEREFORE THAT HE
SHOULD KNOW WHETHER HE COMMITTED IT AND WHETHER HE STOOD IN NEED OF
COUNSEL.  BUT IT HAS LONG BEEN RECOGNIZED THAT THE CHARGE OF TAKING
INDECENT LIBERTIES WITH A CHILD IS, LIKE RAPE, "AN ACCUSATION EASILY TO
BE MADE AND HARD TO BE PROVED, AND HARDER TO BE DEFENDED BY THE PARTY
ACCUSED, THE NEVER SO INNOCENT."  1 HALE'S PLEAS OF THE CROWN 634.  AS
STATED BY THE ILLINOIS SUPREME COURT IN PEOPLE V. FREEMAN, 244 ILL.
590, 594, 91 N.E. 708, 709-710, "PUBLIC INDIGNATION IS EVEN MORE APT TO
BE AROUSED IN PROSECUTIONS FOR CRIMES OF THIS KIND AGAINST CHILDREN
THAN WHEN THE CHARGE IS BROUGHT BY AN ADULT."  CERTAINLY THE APPRAISAL
OF SUCH IMPONDERABLES, THE WEIGHT OF THE PROSECUTION'S CASE, THE
CHARACTER OF THE DEFENSE WHICH IS AVAILABLE  FN5  ARE ALL QUESTIONS
WHICH ONLY A SKILLED LAWYER CAN CONSIDER INTELLIGENTLY.  A LAYMAN MIGHT
RUSH TO CONFESSION WHERE COUNSEL WOULD SEE ADVANTAGES IN A TRIAL BEFORE
JUDGE OR JURY.  COUNSEL MIGHT SEE WEAKNESS IN THE PROSECUTION'S CASE
WHICH COULD BE UTILIZED EITHER IN STANDING TRIAL OR IN PLEADING GUILTY
TO A LESSER OFFENSE.  THESE ARE THE CIRCUMSTANCES OF THE PRESENT CASE
WHICH BUTE USES TO APPEAL TO OUR CONSCIENCE.  THEY WITHOUT MORE
CONVINCE ME THAT WE COULD BE SURE BUTE HAD A FAIR TRIAL ONLY IF COUNSEL
HAD STOOD AT HIS SIDE AND GUIDED HIM ACROSS THE TREACHEROUS GROUND HE
HAD TO TRAVERSE. 

BETTS V. BRADY, SUPRA, HOLDS THAT WE MUST DETERMINE CASE BY CASE,
RATHER THAN BY THE SIXTH AMENDMENT, WHETHER AN ACCUSED IS ENTITLED TO
COUNSEL.  A MAN WHO SUFFERS UP TO 20 YEARS IN PRISON AS A PENALTY IS
UNDERGOING ONE OF THE MOST SERIOUS OF ALL PUNISHMENTS.  IT MIGHT NOT BE
NONSENSE TO DRAW THE BETTS V. BRADY LINE SOMEWHERE BETWEEN THAT CASE
AND THE CASE OF ONE CHARGED WITH VIOLATION OF A PARKING ORDINANCE, AND
TO SAY THE ACCUSED IS ENTITLED TO COUNSEL IN THE FORMER BUT NOT IN THE
LATTER.  BUT TO DRAW THE LINE BETWEEN THIS CASE AND CASES WHERE THE
MAXIMUM PENALTY IS DEATH IS TO MAKE A DISTINCTION WHICH MAKES NO SENSE
IN TERMS OF THE ABSENCE OR PRESENCE OF NEED FOR COUNSEL.  YET IT IS THE
NEED FOR COUNSEL THAT ESTABLISHES THE REAL STANDARD FOR DETERMINING
WHETHER THE LACK OF COUNSEL RENDERED THE TRIAL UNFAIR.  AND THE NEED
FOR COUNSEL, EVEN BY BETTS V. BRADY STANDARDS, IS NOT DETERMINED BY THE
COMPLEXITIES OF THE INDIVIDUAL CASE OR THE ABILITY OF THE PARTICULAR
PERSON WHO STANDS AS AN ACCUSED BEFORE THE COURT.  THAT NEED IS
MEASURED BY THE NATURE OF THE CHARGE AND THE ABILITY OF THE AVERAGE MAN
TO FACE IT ALONE, UNAIDED BY AN EXPERT IN THE LAW.  AS POWELL V.
ALABAMA, SUPRA, INDICATES, THE NEED FOR COUNSEL IN CAPITAL CASES IS
GREAT EVEN THOUGH THE DEFENDANT IS AN INTELLIGENT AND EDUCATED LAYMAN. 
THE NEED IS EQUALLY AS GREAT WHEN ONE STANDS ACCUSED OF THE SERIOUS
CHARGE CONFRONTING BUTE. 

FN1  BETTS V. BRADY WAS DECIDED JUNE 1, 1942.  BENJAMIN V. COHEN AND
ERWIN N. GRISWOLD, WRITING IN THE NEW YORK TIMES, AUGUST 2, 1942,
STATED: 

"MOST AMERICANS - LAWYERS AND LAYMEN ALIKE - BEFORE THE DECISION IN
BETTS V. BRADY WOULD HAVE THOUGHT THAT THE RIGHT OF THE ACCUSED TO
COUNSEL IN A SERIOUS CRIMINAL CASE WAS UNQUESTIONABLY A PART OF OUR OWN
BILL OF RIGHTS.  CERTAINLY THE MAJORITY OF THE SUPREME COURT WHICH
RENDERED THE DECISION IN BETTS V. BRADY WOULD NOT WISH THEIR DECISION
TO BE USED TO DISCREDIT THE SIGNIFICANCE OF THAT RIGHT AND THE
IMPORTANCE OF ITS OBSERVANCE. 

"YET AT A CRITICAL PERIOD IN WORLD HISTORY, BETTS V. BRADY
DANGEROUSLY TILTS THE SCALES AGAINST THE SAFEGUARDING OF ONE OF THE
MOST PRECIOUS RIGHTS OF MAN.  FOR IN A FREE WORLD NO MAN SHOULD BE
CONDEMNED TO PENAL SERVITUDE FOR YEARS WITHOUT HAVING THE RIGHT TO
COUNSEL TO DEFEND HIM.  THE RIGHT TO COUNSEL, FOR THE POOR AS WELL AS
THE RICH, IS AN INDISPENSABLE SAFEGUARD OF FREEDOM AND JUSTICE UNDER
LAW." 

FN2  "EVERY PERSON CHARGED WITH CRIME SHALL BE ALLOWED COUNSEL, AND
WHEN HE SHALL STATE UPON OATH THAT HE IS UNABLE TO PROCURE COUNSEL, THE
COURT SHALL ASSIGN HIM COMPETENT COUNSEL, WHO SHALL CONDUCT HIS
DEFENSE.  IN ALL CASES COUNSEL SHALL HAVE ACCESS TO PERSONS CONFINED,
AND SHALL HAVE THE RIGHT TO SEE AND CONSULT SUCH PERSONS IN PRIVATE. 

"WHENEVER IT SHALL APPEAR TO THE COURT THAT A DEFENDANT OR DEFENDANTS
INDICTED IN A CAPITAL CASE, IS OR ARE INDIGENT AND UNABLE TO PAY
COUNSEL FOR HIS OR HER DEFENSE, IT SHALL BE THE DUTY OF THE COURT TO
APPOINT ONE OR MORE COMPETENT COUNSEL FOR SAID DEFENDANT OR DEFENDANTS,
...  " ILL. REV. STAT. C. 38, SEC. 730(1937). 

FN3  FOR A SUMMARY OF THE ILLINOIS CASES, SEE THE DISSENTING OPINION
OF MR. JUSTICE RUTLEDGE IN FOSTER V. ILLINOIS, 332 U.S. 134, 143-144. 

FN4  THE CLASSIC STATEMENT IS THAT OF MR. JUSTICE SUTHERLAND IN
POWELL V. ALABAMA, SUPRA, PP. 68-69: 

"THE RIGHT TO BE HEARD WOULD BE, IN MANY CASES, OF LITTLE AVAIL IF IT
DID NOT COMPREHEND THE RIGHT TO BE HEARD BY COUNSEL.  EVEN THE
INTELLIGENT AND EDUCATED LAYMAN HAS SMALL AND SOMETIMES NO SKILL IN THE
SCIENCE OF LAW.  IF CHARGED WITH CRIME, HE IS INCAPABLE, GENERALLY, OF
DETERMINING FOR HIMSELF WHETHER THE INDICTMENT IS GOOD OR BAD.  HE IS
UNFAMILIAR WITH THE RULES OF EVIDENCE.  LEFT WITHOUT THE AID OF COUNSEL
HE MAY BE PUT ON TRIAL WITHOUT A PROPER CHARGE, AND CONVICTED UPON
INCOMPETENT EVIDENCE, OR EVIDENCE IRRELEVANT TO THE ISSUE OR OTHERWISE
INADMISSIBLE.  HE LACKS BOTH THE SKILL AND KNOWLEDGE ADEQUATELY TO
PREPARE HIS DEFENSE, EVEN THOUGH HE HAVE A PERFECT ONE.  HE REQUIRES
THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE PROCEEDINGS AGAINST
HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE FACES THE DANGER OF
CONVICTION BECAUSE HE DOES NOT KNOW HOW TO ESTABLISH HIS INNOCENCE.  IF
THAT BE TRUE OF MEN OF INTELLIGENCE, HOW MUCH MORE TRUE IS IT OF THE
IGNORANT AND ILLITERATE, OR THOSE OF FEEBLE INTELLECT." 

FN5  THE SPECIFIC INTENT WHICH IS AN INGREDIENT OF THIS OFFENSE MAY
BE DISPROVED BY A SHOWING OF INTOXICATION (PEOPLE V. KLEMANN, 383 ILL.
236, 48 N.E.2D 957) OR INSANITY.  ILL. REV. STAT. (1937) C. 38, SECS.
590, 592. 
..END :



















PARKER V. ILLINOIS, 333 U.S. 571 


NO. 270.  ARGUED FEBRUARY 13, 1948.  - DECIDED APRIL 5, 1948.  - 396
ILL. 583, 72 N.E.2D 848, AFFIRMED. 


PETITIONER WAS SENTENCED BY AN ILLINOIS COURT TO 90 DAYS IN JAIL FOR
CONTEMPT.  THE STATE SUPREME COURT DENIED A DIRECT REVIEW.  THE TRIAL
COURT THEN ISSUED AN AMENDED ORDER ADJUDGING PETITIONER GUILTY OF
CONTEMPT AND SENTENCING HIM TO JAIL FOR 90 DAYS.  PETITIONER APPEALED
FROM THIS ORDER TO AN INTERMEDIATE STATE COURT, WHICH SUSTAINED IT ON
STATE GROUNDS.  THE STATE SUPREME COURT AFFIRMED.  NEITHER THE
INTERMEDIATE COURT NOR THE STATE SUPREME COURT CONSIDERED PETITIONER'S
CLAIMED DENIAL OF RIGHTS UNDER THE FEDERAL CONSTITUTION.  UNDER
ILLINOIS PRACTICE, A CASE INVOLVING A CLAIM OF FEDERAL RIGHT MUST BE
TAKEN DIRECTLY FROM THE TRIAL COURT TO THE STATE SUPREME COURT, ELSE
THE FEDERAL QUESTION IS DEEMED WAIVED.  HELD: 

1.  IN APPEALING THE AMENDED ORDER TO THE INTERMEDIATE STATE COURT
RATHER THAN DIRECTLY TO THE STATE SUPREME COURT, PETITIONER WAIVED HIS
CLAIM OF RIGHTS UNDER THE FEDERAL CONSTITUTION.  CENTRAL UNION CO. V.
EDWARDSVILLE, 269 U.S. 190.  PP. 572-576. 

2.  WHEN FEDERAL RIGHTS ARE INVOLVED, IT IS FOR THIS COURT TO
DETERMINE WHETHER A CLAIMANT'S FAILURE TO FOLLOW THE PROCEDURE DESIGNED
BY A STATE FOR THEIR PROTECTION CONSTITUTES A WAIVER OF THEM.  P. 574. 

3.  THE ILLINOIS PRACTICE OF REQUIRING CONSTITUTIONAL QUESTIONS TO BE
TAKEN DIRECTLY TO THE STATE SUPREME COURT, AND REFUSING TO REVIEW THEM
IF REVIEW IS FIRST SOUGHT IN AN INTERMEDIATE STATE COURT, AFFORDS
LITIGANTS A REASONABLE OPPORTUNITY TO HAVE CONSTITUTIONAL QUESTIONS
HEARD AND DETERMINED BY THE STATE COURT, AND IS VALID.  PP. 574-575. 

4.  THE FACT THAT A PETITION TO THE STATE SUPREME COURT FOR REVIEW OF
THE AMENDED ORDER MAY HAVE SEEMED FUTILE, IN VIEW OF THAT COURT'S
DENIAL OF DIRECT REVIEW OF THE ORIGINAL ORDER, DOES NOT EXCUSE
PETITIONER'S FAILURE TO PROCEED IN THE PRESCRIBED MANNER.  PP. 575
576. 

5.  IF THE PETITION TO THIS COURT FOR CERTIORARI BE CONSIDERED AS
INVOLVING ONLY THE ORIGINAL ORDER, IT IS OUT OF TIME; IF IT INVOLVES
THE AMENDED ORDER, IT PRESENTS FEDERAL QUESTIONS WHICH HAVE BEEN
WAIVED.  PP. 575-576. 

6.  THE RESULT IN THIS CASE IS NO DIFFERENT IF THE ORIGINAL AND
AMENDED ORDERS ARE REGARDED AS THE SAME IN SUBSTANCE THOUGH SEPARATE IN
POINT OF TIME AND FORM, SINCE IT IS NOT UNREASONABLE FOR ILLINOIS TO
REFUSE A SECOND APPEAL.  P. 576. 

PARKER V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

THE STATE SUPREME COURT DENIED DIRECT REVIEW OF AN ORDER OF A TRIAL
COURT SENTENCING PETITIONER TO IMPRISONMENT FOR CONTEMPT.  AN AMENDED
ORDER OF THE TRIAL COURT WAS AFFIRMED BY AN APPELLATE COURT, 328 ILL.
APP. 46, AND BY THE STATE SUPREME COURT, 396 ILL. 583, 72 N.E.2D 848. 
THIS COURT GRANTED CERTIORARI.  332 U.S. 846.  AFFIRMED, P. 577. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, WHO WAS ENGAGED IN LITIGATION IN THE ILLINOIS COURTS WITH
ONE SHAMBERG, WAS ORDERED ON A MOTION FOR DISCOVERY TO PRODUCE CERTAIN
DOCUMENTS.  HE PRODUCED THEM BY FILING THEM WITH THE CLERK OF THE
ILLINOIS COURTS.  SHAMBERG THEREUPON MOVED THAT PETITIONER BE PUNISHED
FOR CONTEMPT BECAUSE THE DOCUMENTS REFLECTED ON THE INTEGRITY OF THE
COURT.  AFTER A HEARING PETITIONER WAS ADJUDGED GUILTY OF CONTEMPT. 
THE COURT HELD THAT THE ORDER REQUIRED ONLY THAT PETITIONER PRODUCE THE
DOCUMENTS, NOT THAT HE FILE THEM IN COURT SO AS TO MAKE THEM PUBLIC
RECORDS; AND THAT THE FILING OF THE DOCUMENTS CONTAINING STATEMENTS
DEEMED TO BE SCURRILOUS CONSTITUTED AN OBSTRUCTION OF JUSTICE AND AN
ABUSE OF THE PROCESSES OF THE COURT, TENDING TO LESSEN THE COURT'S
DIGNITY AND AUTHORITY.  FN1  PETITIONER WAS SENTENCED TO JAIL FOR 90
DAYS.  THAT WAS ON JANUARY 15, 1945.  PETITIONER THEREUPON SOUGHT A
WRIT OF ERROR IN THE ILLINOIS SUPREME COURT FOR REVIEW OF THE ORDER OF
JANUARY 15.  THE WRIT OF ERROR WAS REFUSED ON JANUARY 23, 1945.  LATER
IN THE SAME DAY THE TRIAL COURT, OVER PETITIONER'S OBJECTION AND IN HIS
PRESENCE, ISSUED AN AMENDED ORDER ADJUDGING HIM GUILTY OF CONTEMPT AND
SENTENCING HIM TO JAIL FOR 90 DAYS.  THIS AMENDMENT WAS MADE, IT IS
SAID, TO CURE CERTAIN DEFECTS IN THE ORDER OF JANUARY 15 AND TO BRING
IT INTO CONFORMITY WITH THE REQUIREMENTS OF ILLINOIS LAW. 

THE AMENDED ORDER OF JANUARY 23 IS THE ONE BEFORE US.  PETITIONER DID
NOT SEEK TO TAKE IT DIRECTLY TO THE ILLINOIS SUPREME COURT.  RATHER, HE
TOOK IT FIRST TO THE APPELLATE COURT OF ILLINOIS WHERE HE SOUGHT TO
ATTACK IT ON THE GROUNDS, INTER ALIA, THAT IT VIOLATED THE FIRST AND
FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION.  BUT THE ILLINOIS
APPELLATE COURT DID NOT CONSIDER THOSE CONSTITUTIONAL QUESTIONS.  IT
SUSTAINED THE AMENDED ORDER OF JANUARY 23 ON STATE GROUNDS.  328 ILL.
APP. 46, 65 N.E.2D 457.  ON WRIT OF ERROR THE ILLINOIS SUPREME COURT
AFFIRMED THE JUDGMENT OF THE APPELLATE COURT.  396 ILL. 583, 72 N.E.2D
848.  IT LIKEWISE DID NOT CONSIDER THE CONSTITUTIONAL QUESTIONS WHICH
PETITIONER PRESENTED.  FOR IT IS WELL-SETTLED LAW IN ILLINOIS THAT IF
AN APPELLANT TAKES HIS CASE TO THE APPELLATE COURT WHERE ERRORS ARE
ASSIGNED OF WHICH THAT COURT HAS JURISDICTION, HE IS DEEMED TO HAVE
WAIVED ANY CONSTITUTIONAL QUESTIONS.  PEOPLE V. ROSENTHAL, 370 ILL.
244, 247, 18 N.E.2D 450, 452; PEOPLE V. MCDONNELL, 377 ILL. 568, 569,
37 N.E.2D 159, 160.  THAT WAS THE REASON NEITHER OF THE COURTS BELOW
PASSED ON THE FEDERAL CONSTITUTIONAL QUESTIONS TENDERED BY PETITIONER. 
FN2  SEE 328 ILL. APP. 46, 55, 65 N.E.2D 457, 461; 396 ILL. 583, 587,
72 N.E.2D 848, 850-851.  THE CIRCUMSTANCE THAT THE PETITIONER HAD TAKEN
THE ORDER OF JANUARY 15 DIRECTLY TO THE ILLINOIS SUPREME COURT DID NOT
CAUSE THAT COURT TO EXCEPT THIS CASE FROM THAT WELL-SETTLED RULE OF
ILLINOIS PRACTICE. 

THIS COURT HELD IN CENTRAL UNION CO. V. EDWARDSVILLE, 269 U.S. 190,
THAT FEDERAL CONSTITUTIONAL QUESTIONS WHICH ILLINOIS HELD HAD BEEN
WAIVED FOR FAILURE TO FOLLOW ITS PROCEDURE WOULD NOT BE ENTERTAINED
HERE.  THE NATURE OF THE QUESTIONS PRESENTED IN THE PRESENT CASE SEEMED
TO US TO WARRANT A GRANT OF THE PETITION FOR WRIT OF CERTIORARI TO
DETERMINE WHETHER THE RULE OF THE EDWARDSVILLE CASE WAS APPLICABLE TO
THE PECULIAR CIRCUMSTANCES PRESENTED HERE. 

WHEN FEDERAL RIGHTS ARE INVOLVED, IT IS, OF COURSE, FOR THIS COURT
FINALLY TO DETERMINE WHETHER THE FAILURE TO FOLLOW THE PROCEDURE
DESIGNED BY A STATE FOR THEIR PROTECTION CONSTITUTES A WAIVER OF THEM. 
DAVIS V. O'HARA, 266 U.S. 314; CENTRAL UNION CO. V. EDWARDSVILLE,
SUPRA.  THE COURT SAID IN THE EDWARDSVILLE CASE THAT WHEN THE WAIVER IS
FOUNDED ON A FAILURE TO COMPLY WITH THE APPELLATE PRACTICE OF A STATE,
THE QUESTION TURNS ON WHETHER THAT PRACTICE GIVES LITIGANTS "A
REASONABLE OPPORTUNITY TO HAVE THE ISSUE AS TO THE CLAIMED RIGHT HEARD
AND DETERMINED" BY THE STATE COURT.  269 U.S., PP. 194-195.  IT WAS
THERE HELD THAT THE ILLINOIS PRACTICE OF REQUIRING CONSTITUTIONAL
QUESTIONS TO BE TAKEN DIRECTLY TO THE ILLINOIS SUPREME COURT AND OF
REFUSING TO REVIEW THEM IF REVIEW WAS FIRST SOUGHT IN THE APPELLATE
COURT SATISFIED THE REQUIREMENT.  WE ADHERE TO THAT DECISION.  THE
CHANNEL THROUGH WHICH THE CONSTITUTIONAL QUESTIONS, RAISED BY
PETITIONER IN HIS ATTACK ON THE AMENDED ORDER, COULD HAVE BEEN TAKEN
ALL THE WAY TO THIS COURT WAS NOT ONLY CLEARLY MARKED, IT WAS ALSO OPEN
AND UNOBSTRUCTED. 

PETITIONER APPEARS HERE PRO SE.  BUT AT THE CRITICAL STAGES OF THIS
LITIGATION HE WAS REPRESENTED BY COUNSEL OF RECORD.  FOR THE LAWYER THE
CHOICE WAS PLAIN.  UNDER THESE CIRCUMSTANCES PETITIONER PLAINLY HAD A
REASONABLE OPPORTUNITY TO HAVE HIS FEDERAL QUESTIONS PASSED UPON BY THE
STATE COURT.  WHEN PETITIONER ACTING THROUGH COUNSEL DECIDED TO SEEK
REVIEW IN THE APPELLATE COURT HE MADE A CHOICE WHICH INVOLVED
ABANDONMENT OF THE CONSTITUTIONAL ISSUES WHICH HE HAD RAISED IN THE
PROCEEDINGS.  THERE IS A SUGGESTION THAT PETITIONER DEEMED IT USELESS
TO TRY TO TAKE THE AMENDED ORDER OF JANUARY 23 TO THE ILLINOIS SUPREME
COURT SINCE ACCESS TO THAT COURT HAD BEEN DENIED HIM WHEN REVIEW OF THE
ORDER OF JANUARY 15 WAS SOUGHT.  BUT EVEN THOUGH THE ATTEMPT MAY HAVE
SEEMED FUTILE,  FN3  IT WAS ONLY BY FIRST SEEKING REVIEW IN THE
ILLINOIS SUPREME COURT THAT HE COULD BRING TO THIS COURT THE
CONSTITUTIONAL QUESTIONS RAISED UNDER THE AMENDED ORDER OF JANUARY 23. 
IT IS NOT AN ANSWER TO SAY THAT HE WENT TO THE ILLINOIS SUPREME COURT
FOR REVIEW OF THE ORDER OF JANUARY 15.  FN4  THAT IS NOT THE ORDER
UNDER WHICH HE STANDS COMMITTED; IT IS NOT THE ORDER REVIEWED BY THE
ILLINOIS SUPREME COURT IN THIS CASE.  NOR COULD DENIAL BY THE ILLINOIS
SUPREME COURT OF HIS PETITION FOR A REVIEW OF THAT EARLIER ORDER HAVE
BEEN THE FOUNDATION FOR THIS PETITION FOR CERTIORARI.  REVIEW OF THAT
ORDER WAS DENIED BY THE ILLINOIS SUPREME COURT ON JANUARY 23, 1945. 
PETITION FOR CERTIORARI WAS FILED HERE AUGUST 15, 1947.  HIS PETITION
FOR CERTIORARI IS NOT TIMELY IF IT CHALLENGES THE EARLIER ORDER.  FN5
IT PRESENTS FEDERAL QUESTIONS WHICH HAVE BEEN WAIVED IF IT INVOLVES, AS
IT PLAINLY DOES, THE AMENDED ORDER. 

THE RESULT IS NO DIFFERENT IF THE ORDERS ARE TREATED AS BEING THE
SAME IN SUBSTANCE THOUGH SEPARATE IN POINT OF TIME AND FORM.  FOR IF
THE JANUARY 15 ORDER BE REGARDED AS MERELY AN INTERLOCUTORY VERSION OF
THE AMENDED ORDER OF JANUARY 23, THE FACT REMAINS THAT THE LATTER ORDER
WAS NOT TAKEN DIRECTLY TO THE ILLINOIS SUPREME COURT BUT TO THE
ILLINOIS APPELLATE COURT, WITH THE CONSEQUENCES WE HAVE INDICATED.  WE
FIND IT NO MORE UNREASONABLE FOR ILLINOIS TO REQUIRE A SECOND APPEAL
THAN FOR THIS COURT TO DO SO, AS IT DOES WHEN IT REFUSES TO REVIEW THE
JUDGMENT OF A LOWER STATE COURT ABSENT A SECOND APPEAL TO THE HIGHEST
COURT OF THE STATE, THOUGH THAT BE A MERE FORMALITY BECAUSE GOVERNED BY
THE LAW OF THE CASE ESTABLISHED IN AN EARLIER APPEAL.  MCCOMB V.
COMMISSIONERS OF KNOX COUNTY, 91 U.S. 1; GREAT WESTERN TELEGRAPH CO. V.
BURNHAM, 162 U.S. 339. 

IT IS SUGGESTED THAT IN THIS CASE THERE COULD BE NO FINAL JUDGMENT
WITHIN THE MEANING OF SEC. 237 OF THE JUDICIAL CODE, 28 U.S.C. SEC.
344, WHICH COULD BE BROUGHT HERE BY CERTIORARI UNTIL ALL QUESTIONS OF
STATE LAW HAD BEEN RESOLVED BY THE ILLINOIS COURTS.  BUT THERE WOULD BE
NOTHING OTHER THAN MINISTERIAL ACTS LEFT TO BE DONE BY THE TRIAL COURT
ONCE THE ILLINOIS SUPREME COURT DENIED DIRECT REVIEW OF THE ORDER.  CF.
RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69, 72-73.  ANY FURTHER
PROCEEDINGS IN THE ILLINOIS COURTS WOULD BE SOLELY AT THE OPTION OF
PETITIONER.  IN THESE CIRCUMSTANCES, A JUDGMENT IS NO LESS FINAL FOR
PURPOSES OF OUR JURISDICTIONAL STATUTE BECAUSE IT HAS BEEN SUSTAINED
SOLELY ON FEDERAL CONSTITUTIONAL GROUNDS.  FN6  THAT CONSEQUENCE IS
INHERENT IN THE RULE FORMULATED IN CENTRAL UNION CO. V. EDWARDSVILLE,
SUPRA.  AFFIRMED. 

FN1  THE CONTENTS OF THE DOCUMENTS ARE REVIEWED IN 328 ILL. APP. 46,
50-54, 65 N.E.2D 457, 459-461. 

FN2 CONSTITUTIONAL QUESTIONS ARE TO BE REVIEWED DIRECTLY BY THE
ILLINOIS SUPREME COURT.  ILL. REV. STAT. C. 110, SEC. 199(1947).  AS
HELD IN THIS CASE THOSE INCLUDE QUESTIONS ARISING UNDER THE FEDERAL
CONSTITUTION.  AND SEE CENTRAL UNION CO. V. EDWARDSVILLE, 269 U.S. 190,
194.  THE PROCEDURE IS APPLICABLE IN CRIMINAL AS WELL AS CIVIL CASES. 
PEOPLE V. TERRILL, 362 ILL. 61, 199 N.E. 97; PEOPLE V. ROSENTHAL,
SUPRA; PEOPLE V. MCDONNELL, SUPRA. 

FN3  CF. GREAT WESTERN TELEGRAPH CO. V. BURNHAM, 162 U.S. 339. 

FN4  THE WRIT OF ERROR BY WHICH PETITIONER CHALLENGED THE ORDER OF
JANUARY 15 DOES NOT APPEAR IN THE PRESENT RECORD.  WE ASSUME MOST
FAVORABLY TO PETITIONER THAT THE SAME CONSTITUTIONAL QUESTIONS WERE
PRESENTED THERE AS PETITIONER SEEKS TO HAVE ADJUDICATED HERE. 

FN5  SEC. 8(A) OF THE JUDICIARY ACT OF FEBRUARY 13, 1925, 43 STAT.
936, 940, 28 U.S.C. SEC. 350. 

FN6  IF DIRECT REVIEW OF THE AMENDED ORDER WERE OBTAINED IN THE
ILLINOIS SUPREME COURT, RATHER THAN DENIED FOR LACK OF A SUBSTANTIAL
CONSTITUTIONAL QUESTION, THAT COURT WOULD PASS NOT ONLY UPON THE
CONSTITUTIONAL QUESTIONS BUT UPON ALL OTHER QUESTIONS AS WELL.  GROOME
V. FREYN ENGINEERING CO., 374 ILL. 113, 28 N.E.2D 274; PEOPLE V. KELLY,
367 ILL. 616, 618, 12 N.E.2D 612, 613; GEIGER V. MERLE, 360 ILL. 497,
505, 507, 196 N.E. 497, 500-501. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY AGREE, DISSENTING. 

PETITIONER HAS BEEN HELD IN CONTEMPT AND SENTENCED TO IMPRISONMENT
FOR COMPLYING WITH AN ORDER OF COURT TO PRODUCE SPECIFIED DOCUMENTS. 
TECHNICALLY HE WAS ORDERED TO SHOW CAUSE WHY THE DOCUMENTS SHOULD NOT
BE PRODUCED.  AFTER HIS OBJECTIONS TO THAT ORDER WERE OVERRULED HE
COMPLIED BY BRINGING THE DOCUMENTS INTO COURT AND FILING THEM WITH THE
CLERK.  FN1  THEREUPON HE WAS CITED FOR CONTEMPT BECAUSE THE DOCUMENTS
REFLECTED ON THE COURT'S INTEGRITY AND WAS SENTENCED TO 90 DAYS IN
JAIL. 

WHETHER OR NOT THE DOCUMENTS WOULD HAVE GIVEN GROUND FOR PUNISHMENT
IF THEY HAD BEEN PUBLISHED VOLUNTARILY BY PETITIONER,  FN2  THE EFFECT
OF THE CONTEMPT JUDGMENT COUPLED WITH THAT OF THE ORDER FOR PRODUCTION
FN3  HAS BEEN FIRST TO COMPEL PETITIONER TO PUBLISH THE STATEMENTS BY
FILING THEM AND THEN TO SEND HIM TO JAIL FOR OBEYING THE COURT'S
ORDER.  CF. ENTICK V. CARRINGTON, 19 HOW.  ST. TR. 1029, 1073.  I KNOW
OF NO CONSTITUTIONAL POWER WHICH PERMITS A STATE TO FORCE A CITIZEN
INTO SUCH A DILEMMA, AND I THINK THE MOST ELEMENTARY CONCEPTION OF DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT FORBIDS ANY SUCH ACTION. 

YET THIS COURT NOW ACQUIESCES IN THIS SUBSTANTIAL AND
UNCONSTITUTIONAL DEPRIVATION OF PETITIONER'S LIBERTY BY ACCEPTING AN
ASSERTED PROCEDURAL WAIVER OF PETITIONER'S SUBSTANTIVE RIGHTS WHICH, IN
MY OPINION, NO MORE COMPORTS WITH BASIC CONCEPTIONS OF DUE PROCESS THAN
DOES THE SUBSTANTIVE ORDER FOR COMMITMENT.  CONSTITUTIONAL RIGHTS MAY
BE NULLIFIED QUITE AS READILY AND COMPLETELY BY HYPERTECHNICAL
PROCEDURAL OBSTRUCTIONS TO THEIR EFFECTIVE ASSERTION AND MAINTENANCE AS
BY OUTRIGHT SUBSTANTIVE DENIAL.  MARINO V. RAGEN, 332 U.S. 561,
CONCURRING OPINION AT 563. 

THE ENTIRE BASIS OF THE COURT'S ACTION IS THAT THE ORIGINAL CONTEMPT
ORDER OF JANUARY 15 AND THE SO-CALLED AMENDED ORDER OF JANUARY 23 ARE
DIFFERENT ORDERS; PETITIONER IS DEEMED TO HAVE WAIVED HIS
CONSTITUTIONAL RIGHTS BY TAKING AN APPEAL FROM THE LATTER ORDER TO THE
ILLINOIS APPELLATE COURT RATHER THAN TO THE ILLINOIS SUPREME COURT. 
THE CASE SEEMS SIMPLE BECAUSE IT IS SAID TO BE "WELL-SETTLED ILLINOIS
LAW" THAT BOTH FEDERAL AND STATE CONSTITUTIONAL RIGHTS ARE WAIVED BY
TAKING THIS APPELLATE ROUTE, AND BECAUSE THIS COURT HAS PREVIOUSLY
DETERMINED THAT THIS APPELLATE PRACTICE GIVES LITIGANTS A REASONABLE
OPPORTUNITY TO BE HEARD.  SEE CENTRAL UNION CO. V. EDWARDSVILLE, 269
U.S. 190, 194-195. 

I CANNOT ACCEPT THIS HYPERTECHNICAL PROCEDURAL NULLIFICATION OF
CONSTITUTIONAL RIGHTS IN A CASE INVOLVING THE LIBERTY OF THE
INDIVIDUAL.  THE ORIGINAL ORDER OF JANUARY 15 AND THE SO-CALLED AMENDED
ORDER ARE IN REALITY THE SAME ORDER.  MOREOVER, PRIOR TO THIS CASE
THERE WAS NO "WELL-SETTLED ILLINOIS LAW" TO APPRISE PETITIONER THAT HIS
APPEAL TO THE INTERMEDIATE COURT WOULD CONSTITUTE A WAIVER OF HIS
RIGHTS IN CIRCUMSTANCES SUCH AS THESE, WHERE HE HAD ALREADY SOUGHT
REVIEW OF HIS FEDERAL QUESTIONS IN THE STATE SUPREME COURT.  AND
FINALLY, EVEN IF THE CONTRARY HAD BEEN TRUE, I WOULD NOT CONSIDER THIS
APPELLATE PRACTICE REASONABLE WITHIN THE DOCTRINE OF THE CENTRAL UNION
CASE. 

PETITIONER FILED THE "SCURRILOUS AFFIDAVITS" WHICH LED TO THE
CONTEMPT ORDER ON TWO DIFFERENT OCCASIONS.  THE FIRST WAS ON JANUARY 4
IN RESPONSE TO THE MOTION TO PRODUCE THEM FOR INSPECTION.  THE SECOND
WAS ON JANUARY 15 AS PART OF HIS ANSWER TO SHAMBERG'S MOTION FOR A RULE
TO SHOW CAUSE WHY HE SHOULD NOT BE ADJUDGED IN CONTEMPT FOR FILING
DOCUMENTS WHICH HE WAS ONLY REQUIRED TO PRODUCE FOR INSPECTION.  ON
THIS SECOND OCCASION THE DOCUMENTS WERE INCLUDED IN THE PLEADINGS
BECAUSE RELEVANT TO HIS DEFENSE THAT THE STATEMENTS MADE THEREIN WERE
TRUE.  FN4  THE COURT ADJUDGED PETITIONER IN CONTEMPT FOR BOTH
FILINGS.  FN5    IN THE ORIGINAL CONTEMPT ORDER OF JANUARY 15 THE COURT
SPECIFICALLY REFERRED TO THE FACT THAT THE DOCUMENTS HAD BEEN FILED
TWICE BEFORE, IDENTIFIED THEM CAREFULLY, AND STATED THAT THEY "SHOULD
BE BY REFERENCE INCORPORATED IN THIS ORDER AND MADE A PART HEREOF FOR
GREATER CERTAINTY."  AT A LATER POINT IN THE ORDER THE DOCUMENTS WERE
AGAIN LISTED AND ADJUDGED TO BE "HEREBY INCORPORATED BY REFERENCE IN
THIS ORDER AND MADE A PART HEREOF WITH THE SAME FORCE AND EFFECT AS IF
SET FORTH HEREIN."  THUS THE DOCUMENTS WHICH GAVE RISE TO THE CONTEMPT
ORDER WERE TWICE MADE A MATTER OF PUBLIC RECORD AND TWICE INCORPORATED
IN THE ORIGINAL CONTEMPT ORDER. 

THE SO-CALLED AMENDED ORDER OF JANUARY 23 IS ABSOLUTELY IDENTICAL
WITH THE ORIGINAL ORDER WITH THE IMMATERIAL EXCEPTION THAT THE
DOCUMENTS, IN ADDITION TO BEING INCORPORATED IN THE ORDER BY REFERENCE
WERE ALSO "MADE A PART HEREOF AND MARKED EXHIBITS 'A' AND 'B'
RESPECTIVELY."  THE REASON FOR THE CHANGE IS PROBABLY EXPLAINED BY
ILLINOIS CASES SUCH AS PEOPLE V. HOGAN, 256 ILL. 496, HOLDING THAT THE
RECORD ON REVIEW OF A CONTEMPT ORDER IS LIMITED TO THE ORDER ITSELF. 
BUT RESPONDENT HAS NOT CALLED OUR ATTENTION TO ANY ILLINOIS CASES
HOLDING THAT INCORPORATION OF MATTER OF PUBLIC RECORD INTO AN ORDER BY
REFERENCE IS INSUFFICIENT TO MAKE THAT MATTER PART OF THE ORDER. 
INDEED, THIS VERY PROCEEDING INDICATES THAT THIS REQUIREMENT IS NOT
STRICTLY APPLIED.  FOR THE ILLINOIS APPELLATE COURT SET ASIDE ONE ORDER
ADJUDGING PETITIONER IN CONTEMPT FOR THE TONE OF HIS ANSWER TO A
CERTAIN PLEADING FILED BY SHAMBERG ON THE GROUND THAT THE CHARGES IN
SHAMBERG'S PLEADING, WHICH WAS NOT MADE A PART OF THE CONTEMPT ORDER,
JUSTIFIED THE TONE OF THE ANSWER.  328 ILL. APP. 46, 60-68.  BUT EVEN
IF IT IS ASSUMED THAT THE AMENDMENT WAS NECESSARY TO SATISFY THE
REQUIREMENTS OF ILLINOIS LAW, IT WAS OF SUCH A TRIVIAL AND MINISTERIAL
NATURE THAT IT OBVIOUSLY DID NOT AFFECT THE MERITS OF PETITIONER'S
CONSTITUTIONAL ALLEGATIONS. 

WHEN PETITIONER SOUGHT REVIEW OF THE ORIGINAL CONTEMPT ORDER IN THE
SUPREME COURT OF ILLINOIS HE OBTAINED THE ONLY REVIEW OF THOSE
CONSTITUTIONAL CONTENTIONS WHICH THE STATE PROCEDURE OFFERED HIM.  THAT
COURT BY DENYING THE WRIT OF ERROR MUST BE PRESUMED TO HAVE PASSED ON
THE MERITS OF THE CONSTITUTIONAL QUESTIONS IN THE CASE.  IT IS
INCONCEIVABLE THAT THE SUPREME COURT WOULD HAVE PASSED ON THEM ANY
DIFFERENTLY IF REVIEW OF THE SO-CALLED AMENDED ORDER HAD LATER BEEN
REQUESTED.  FOR, AS FAR AS THAT COURT IS CONCERNED, IT IS LIKELY THAT
THE LAW OF THE CASE AS TO THE CONSTITUTIONAL ISSUES WAS ALREADY
SETTLED.  BUT EVEN IF IT WERE TAKEN THAT THE SUPREME COURT MIGHT HAVE
REVERSED ITS DECISION, THE FACT REMAINS THAT THE SO-CALLED AMENDED
ORDER WAS THE SAME ORDER AS THE ORIGINAL JANUARY 15 ORDER OF WHICH
REVIEW HAD ALREADY BEEN DENIED.  PETITIONER IS DEEMED TO HAVE WAIVED
HIS FEDERAL CONSTITUTIONAL RIGHTS NOT BECAUSE HE FAILED TO SEEK REVIEW
IN THE SUPREME COURT, BUT BECAUSE HE FAILED TO DO SO TWICE. 

IT IS DEFINITELY NOT "WELL-SETTLED ILLINOIS LAW" THAT A WAIVER
RESULTS IN THESE CIRCUMSTANCES.  IN ALL OF THE CASES CITED IN THE
OPINION OF THE COURT AND IN RESPONDENT'S BRIEF THE PETITIONER INITIALLY
SOUGHT REVIEW IN THE INTERMEDIATE APPELLATE COURT.  IN NONE DID HE DO
SO ONLY AFTER HAVING THE STATE SUPREME COURT DENY AN APPLICATION FOR
REVIEW.  THERE IS NO "WELL-SETTLED ILLINOIS LAW" TO THE EFFECT THAT TWO
APPLICATIONS TO THE STATE SUPREME COURT MUST BE MADE IN ORDER TO AVOID
WAIVER OF CONSTITUTIONAL RIGHTS.  AND IF SUCH A REQUIREMENT DID EXIST
IT CERTAINLY WOULD NOT BE REASONABLE.  FN6  CONSEQUENTLY I AM UNABLE TO
AGREE THAT THE DOCTRINE OF WAIVER APPLIED HERE TO DEPRIVE A MAN OF HIS
PERSONAL FREEDOM IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS IS A
REASONABLE STATE PROCEDURE WITHIN THE CENTRAL UNION CASE.  FN7 

BY STATING THAT THE PETITION FOR CERTIORARI IS NOT TIMELY IF IT
CHALLENGES THE ORIGINAL ORDER, THE COURT REPEATS ITS MISTAKE OF
TREATING THE SO-CALLED AMENDED ORDER AS SOMETHING ENTIRELY SEPARATE AND
DISTINCT FROM THE ORIGINAL CONTEMPT ORDER.  BUT WITH THE TWO ORDERS
VIEWED AS THE SAME, THERE IS CLEARLY NO QUESTION OF TIMELINESS.  FOR
THE DENIAL OF WRIT OF ERROR BY THE ILLINOIS SUPREME COURT LEFT STATE
ISSUES THAT WENT TO THE CORE OF THE LITIGATION FOR DETERMINATION BY
APPEAL THROUGH THE INTERMEDIATE STATE COURT.  THE SITUATION THEREFORE
IS NOT THE ONE PRESENTED IN RICHFIELD OIL CORP. V. STATE BOARD, 329
U.S. 69, WHERE THE ONLY THINGS REMAINING TO BE DONE WERE MINISTERIAL
ACTS IN THE TRIAL COURT.  HERE, EVEN IF NOTHING MORE WAS LEFT FOR THE
TRIAL COURT TO DO, A GREAT DEAL MORE WAS LEFT TO BE DONE BY THE
ILLINOIS APPELLATE COURT, NAMELY, TO REVIEW AND DETERMINE ALL QUESTIONS
OF STATE LAW PRESENTED IN THE CASE.  FN8  THE RICHFIELD DECISION HAD NO
RELATION TO A SPLIT PROCEDURE FOR REVIEW IN THE STATE COURTS SUCH AS
THIS, SENDING FEDERAL QUESTIONS TO ONE TRIBUNAL AND STATE QUESTIONS TO
ANOTHER.  UNTIL THE FINAL JUDGMENT WAS ENTERED BY THE SUPREME COURT OF
ILLINOIS ON MAY 19, 1947, IN REVIEW OF THE ILLINOIS APPELLATE COURT'S
JUDGMENT, THE CORE OF THE LITIGATION HAD NOT BEEN TERMINATED "BY FULLY
DETERMINING THE RIGHTS OF THE PARTIES."  GOSPEL ARMY V. LOS ANGELES,
331 U.S. 543, 546.  FOR ONLY THEN WERE THE STATE QUESTIONS FINALLY
ADJUDICATED.  HENCE ANY EARLIER APPLICATION FOR CERTIORARI WOULD HAVE
MET WITH THE INSUPERABLE OBSTACLE THAT WE WERE WITHOUT JURISDICTION,
FOR WANT OF ANY FINAL JUDGMENT.  FN9 

PETITIONER WAS THUS PLACED IN A SECOND DILEMMA, ARISING IN THE
APPELLATE STAGE OF THE STATE PROCEEDINGS.  HE FIRST FOLLOWED THE ONLY
COURSE AFFORDED BY THE STATE PROCEDURE FOR SECURING REVIEW OF HIS
FEDERAL CONSTITUTIONAL QUESTIONS.  WHEN THEY WERE DETERMINED AGAINST
HIM HE WAS BARRED FROM COMING HERE BECAUSE STATE QUESTIONS REMAINED TO
BE DECIDED BY THE INTERMEDIATE APPELLATE COURT AND THUS AS A MATTER OF
FEDERAL LAW UNDER OUR DECISIONS THE JUDGMENT WAS NOT FINAL.  IN ORDER
TO SURMOUNT THIS JURISDICTIONAL HURDLE PETITIONER THEN WENT TO THE ONLY
PLACE HE COULD GO, THE INTERMEDIATE APPELLATE COURT.  WHEN IT DECIDED
THE STATE ISSUES AGAINST HIM, HE TOOK THE NECESSARY FURTHER STEP OF
GOING AGAIN TO THE STATE SUPREME COURT.  ITS ADVERSE DECISION FINALLY
CLOSED THE TRAP UPON HIM.  FOR THE FIRST TIME A JUDGMENT DISPOSITIVE OF
THE WHOLE CONTROVERSY WAS RENDERED, AND THUS THE WAY OPENED UNDER
FEDERAL LAW FOR REVIEW OF THE FEDERAL QUESTIONS HERE.  BUT AT THE SAME
INSTANT THAT DOOR WAS CLOSED, BY APPLICATION OF THE ILLINOIS RULE THAT
TAKING APPEAL TO THE INTERMEDIATE COURT "WAIVED" PETITIONER'S FEDERAL
RIGHTS.  AND THAT RULING HELD ON HIS APPLICATION FOR REHEARING. 

I CAN IMAGINE NO BETTER WAY TO ANNIHILATE CONSTITUTIONAL RIGHTS, BOTH
SUBSTANTIVELY AND PROCEDURALLY, THAN THUS DOVETAILING FEDERAL
JURISDICTIONAL LIMITATIONS WITH STATE PROCEDURAL ONES.  TO SECURE
REVIEW OF FEDERAL QUESTIONS HERE, PETITIONER MUST EXHAUST HIS STATE
REMEDIES.  BUT IF HE EXHAUSTS THOSE REMEDIES HE "WAIVES" THE FEDERAL
QUESTIONS. 

THIS IS NOT WAIVER.  IT IS NULLIFICATION.  I DO NOT THINK CONGRESS
INTENDED TO COUNTENANCE SUCH A DENIAL BY THE REQUIREMENT OF FINALITY OR
THAT ITS EFFECT, IN CONJUNCTION WITH STATE PROCEDURES, SHOULD BE TO CUT
OFF THE VERY RIGHTS WHICH THE JURISDICTIONAL AUTHORIZATION FOR
REVIEWING FINAL JUDGMENTS WAS ENACTED TO SAFEGUARD. 

THE ISSUE OF FEDERAL PROCEDURE IN THIS CASE IS NOT ONE OF
TIMELINESS.  IT IS RATHER ONE OF FINALITY, NOW APPLIED TO DENY RATHER
THAN TO ASSURE REVIEW IN PROTECTION OF PERSONAL LIBERTY FROM INVASION
BY UNCONSTITUTIONAL STATE ACTION.  CENTRAL UNION CO. V. EDWARDSVILLE,
SUPRA, CONTEMPLATED NO SUCH PARADOX.  FN10  NOR, TO MY KNOWLEDGE, HAS
ANY OTHER DECISION OF THIS COURT.  AS A MATTER OF FEDERAL PROCEDURE
PETITIONER DID NOT WAIVE HIS CONSTITUTIONAL RIGHTS EITHER BY FAILING TO
SEEK CERTIORARI FROM THE ILLINOIS SUPREME COURT'S JUDGMENT OF JANUARY
23, 1945, OR BY TAKING THE NECESSARY STEPS TO SEEK THE WRIT WHEN HE
APPEALED TO THE STATE INTERMEDIATE APPELLATE COURT. 

THE JUDGMENT OF THE ILLINOIS SUPREME COURT SHOULD BE REVERSED. 

FN1  AT THIS TIME PETITIONER WAS NOT REPRESENTED BY COUNSEL AND THERE
WAS A SLIGHT DEVIATION FROM A STRICTLY ACCURATE COMPLIANCE WITH THE
COURT'S DIRECTIVE.  BUT EVEN IF HE HAD HAD COUNSEL, THE DEVIATION WAS
MINUSCULE.  IT COULD NOT HAVE FURNISHED A SUFFICIENT BASIS, WITHOUT
MORE, FOR SUSTAINING AN ORDER OF CONTEMPT AND COMMITMENT AS FOR
DISOBEDIENCE.  THE COURT'S ORDER INDEED DID NOT REST ON ANY SUCH
GROUND.  IT RESTED RATHER ON THE GROUNDS THAT THE "FILING OF SAID
SCURRILOUS AFFIDAVIT AND EXHIBITS  ...  CONSTITUTES AN OBSTRUCTION OF
JUSTICE AND AN ABUSE OF THE (COURT'S) PROCESSES  ...  AND TENDED TO
LESSEN  ...  (ITS) DIGNITY AND AUTHORITY  ...  "  OBVIOUSLY THE MERE
FILING OF DOCUMENTS NOT SCURRILOUS COULD HAVE GIVEN NO GROUND FOR
ENTERING OR SUSTAINING SUCH AN ORDER.  CF. NOTE 3. 

FN2  CF. CRAIG V. HARNEY, 331 U.S. 367; PENNEKAMP V. FLORIDA, 328
U.S. 331; BRIDGES V. CALIFORNIA, 314 U.S. 252. 

FN3  THE STATE MAKES A WEAK EFFORT TO AVOID THE ORDER'S EFFECT BY
ATTEMPTING TO DISTINGUISH BETWEEN AN ORDER TO SHOW CAUSE WHY THE
DOCUMENTS SHOULD NOT BE PRODUCED AND ONE FOR THEIR PRODUCTION.  WE HAVE
BEEN CITED TO NO AUTHORITY HOLDING THAT IN ILLINOIS THE ORDER TO SHOW
CAUSE DOES NOT HAVE THE EFFECT OF AN ORDER FOR PRODUCTION IF CAUSE IS
NOT SHOWN OR, IN THAT EVENT, WOULD NOT SUPPORT AN ORDER OF CONTEMPT FOR
FAILING TO PRODUCE. 

FN4  PETITIONER NEVER OBTAINED A HEARING ON THE TRUTH OF THE
STATEMENTS IN THE DOCUMENTS EVEN THOUGH THAT ISSUE WAS RELEVANT TO THE
MERITS OF THE SLANDER ACTION AGAINST SHAMBERG WHICH GAVE RISE TO THE
CONTEMPT PROCEEDINGS.  SINCE THIS SLANDER ACTION WAS DISMISSED ON THE
MERITS WITHOUT TRIAL, IT IS OF INTEREST THAT THE ILLINOIS APPELLATE
COURT POINTED OUT IN REVIEW OF THE CONTEMPT ORDER DISCUSSED IN NOTE 5
INFRA:  "WHEN SHAMBERG'S PETITION IS CONSIDERED IN THE LIGHT OF THE
FACT THAT PARKER HAD DEMANDED A JURY TRIAL IN THE SLANDER CASE, IT
SEEMS REASONABLY CLEAR THAT THE TRIAL COURT SHOULD NOT HAVE RULED
PARKER TO ANSWER THE PETITION, AS THE EVIDENT PURPOSE OF THAT PLEADING
WAS TO HAVE THE TRIAL COURT PREJUDGE FACTS THAT PARKER INSISTED SHOULD
BE SUBMITTED TO A JURY."  328 ILL. APP. 46, 63. 

FN5  ON JANUARY 23 THE COURT ALSO ISSUED AN ADDITIONAL CONTEMPT ORDER
BASED ON THE TONE OF PETITIONER'S ANSWER TO STILL ANOTHER MOTION FILED
BY SHAMBERG ASKING THAT PETITIONER BE PLACED IN CONTEMPT FOR NOT
PRODUCING ALL OF THE DOCUMENTS LISTED IN THE MOTION TO PRODUCE.  THIS
CONTEMPT ORDER WAS SET ASIDE BY THE ILLINOIS APPELLATE COURT.  SEE NOTE
4 SUPRA.  AMONG OTHER THINGS THAT COURT STATED:  "(SHAMBERG'S) PETITION
IS A HIGHLY PROVOCATIVE PLEADING, AND SHAMBERG PROBABLY INTENDED THAT
IT SHOULD HAVE THAT EFFECT.  THERE IS SOME FORCE IN THE CONTENTION OF
PARKER THAT THE PETITION WAS DESIGNED TO PROVOKE HIM INTO MAKING SOME
ANSWER OR STATEMENT THAT WOULD SUBJECT HIM TO CRIMINAL PROSECUTION OR
CONTEMPT PROCEEDINGS.  THERE IS ALSO FORCE IN PARKER'S ARGUMENT THAT IF
THE STATEMENTS HE MADE IN HIS ANSWER, UPON WHICH SHAMBERG NOW RELIES,
CONSTITUTE CONTEMPT OF COURT, WHY DID NOT THE MANY CHARGES MADE AGAINST
PARKER IN THE PETITION ALSO CONSTITUTE CONTEMPT OF COURT?  ...  WE
THINK THAT WHEN THE STATEMENTS MADE BY PARKER IN HIS ANSWER ARE
CONSIDERED IN THE LIGHT OF THE SERIOUS CHARGES THAT WERE MADE AGAINST
PARKER AND THE PURITAN CHURCH IN THE PETITION, THE ANSWER SEEMS TO BE A
FAIRLY TEMPERATE PLEADING."  328 ILL. APP. 46, 67-68. 

FN6  EVEN THE OPINIONS OF THE ILLINOIS APPELLATE COURTS IN THIS
PROCEEDING WOULD NOT ENLIGHTEN FUTURE LITIGANTS BECAUSE THEY DO NOT
MENTION THE FACT THAT WRIT OF ERROR WAS DENIED BY THE SUPREME COURT
BEFORE REVIEW IN THE APPELLATE COURT WAS SOUGHT.  SEE 328 ILL. APP. 46
AND 396 ILL. 583. 

FN7  THAT CASE DECLARED THAT THE STATE PROCEDURE "SHOULD BIND US
UNLESS SO UNFAIR OR UNREASONABLE IN ITS APPLICATION TO THOSE ASSERTING
A FEDERAL RIGHT AS TO OBSTRUCT IT."  269 U.S. 190, 195. 

FN8  THESE QUESTIONS ARE DISCUSSED IN 328 ILL. APP. 46 AND 396 ILL.
583. 

FN9  CF. PRUDENTIAL INS. CO. V. CHEEK, 252 U.S. 567, 259 U.S. 530. 
IT HAS BEEN SUGGESTED THAT ON THE RECORD WE CANNOT ASCERTAIN WHETHER
THE ILLINOIS SUPREME COURT'S DENIAL OF REVIEW OF THE ORDER OF JANUARY
15TH WAS ON FEDERAL OR STATE GROUNDS.  BUT WHEN THE ONLY PURPOSE OF
REVIEW UNDER STATE LAW CAN BE TO SECURE DECISION OF FEDERAL QUESTIONS
AND NO MORE APPEARS FROM THE STATE COURT'S ORDER THAN THAT THE
APPLICATION FOR REVIEW WAS DENIED, THIS COURT HAS REFUSED TO ALLOW A
PRESUMPTION THAT THE DENIAL WAS ON STATE GROUNDS ONLY TO CUT OFF REVIEW
HERE OF FEDERAL CONSTITUTIONAL QUESTIONS DETERMINATIVE OF THE CITIZEN'S
LIBERTY.  WILLIAMS V. KAISER, 323 U.S. 471, 478, AND AUTHORITIES
CITED. 

FN10  IT IS SUGGESTED THAT THE CENTRAL UNION CASE IMPLICITLY HELD
THAT A JUDGMENT OF THE ILLINOIS SUPREME COURT ADJUDICATING THE FEDERAL
ISSUES IN A CASE IS FINAL EVEN THOUGH STATE ISSUES REMAIN UNRESOLVED. 
THAT CASE, HOWEVER, WAS DECIDED ON THE EXPRESS ASSUMPTION THAT THE
ILLINOIS SUPREME COURT WOULD PASS ON THE FEDERAL QUESTION "TOGETHER
WITH ALL THE OTHER QUESTIONS IN THE CASE."  269 U.S. 190, 195.  OF
COURSE THE STATE SUPREME COURT JUDGMENT IS FINAL WHEN IT SETTLES ALL
THE STATE ISSUES AS WELL AS THE FEDERAL ISSUES. 
..END :
















SHADE V. DOWNING, 333 U.S. 586 


NO. 448.  ARGUED FEBRUARY 11, 1948.  - DECIDED APRIL 5, 1948. 


THE UNITED STATES IS NOT A NECESSARY PARTY TO A PROCEEDING, BROUGHT
UNDER THE ACT OF JUNE 14, 1918, TO DETERMINE THE HEIRSHIP OF A DECEASED
CITIZEN ALLOTTEE OF THE FIVE CIVILIZED TRIBES.  PP. 586-590. 

SHADE V. DOWNING ET AL. 

ON CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

PETITIONER BROUGHT SUIT AGAINST RESPONDENTS IN AN OKLAHOMA STATE
COURT, CLAIMING AN INTEREST IN LANDS OF A DECEASED CITIZEN ALLOTTEE OF
THE FIVE CIVILIZED TRIBES.  UPON MOTION OF THE SUPERINTENDENT FOR THE
FIVE CIVILIZED TRIBES, WHO HAD BEEN SERVED WITH NOTICE OF THE
PROCEEDING, THE CAUSE WAS REMOVED TO THE FEDERAL DISTRICT COURT. 
JUDGMENT WAS ENTERED FOR RESPONDENTS.  ON APPEAL, THE CIRCUIT COURT OF
APPEALS CERTIFIED A QUESTION TO THIS COURT FOR DETERMINATION.  THE
QUESTION CERTIFIED IS HERE ANSWERED "NO," P. 590. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT, ACTING UNDER
JUDICIAL CODE SEC. 239, 28 U.S.C. SEC. 346, HAS CERTIFIED THE FOLLOWING
QUESTION FOR OUR DETERMINATION: 

"(1)  IS THE UNITED STATES A NECESSARY PARTY TO A PROCEEDING TO
DETERMINE THE HEIRSHIP OF A DECEASED CITIZEN ALLOTTEE OF THE FIVE
CIVILIZED TRIBES BROUGHT UNDER THE ACT OF JUNE 19(14), 1918, 40 STAT.
606?" 

ON JANUARY 4, 1935, THE COUNTY COURT OF CHEROKEE COUNTY, OKLAHOMA,
DECREED THAT THE SOLE AND ONLY HEIRS OF THOMPSON DOWNING, A FULL-BLOOD
CHEROKEE, WERE HIS THREE DAUGHTERS, THE APPELLEES BELOW.  SOMETIME
THEREAFTER PEGGY SHADE BROUGHT THIS SUIT IN AN OKLAHOMA COURT TO CLAIM,
AS THE ONLY HEIR OF DOWNING'S SECOND WIFE, AN UNDIVIDED ONE-FOURTH
INTEREST IN DOWNING'S ALLOTTED LANDS.  SHE ATTACKED THE 1935 DECREE ON
THE GROUND, AMONG OTHERS, THAT NO NOTICE OF THE PENDENCY OF THE
HEIRSHIP PROCEEDINGS HAD BEEN SERVED ON THE SUPERINTENDENT FOR THE FIVE
CIVILIZED TRIBES UNDER THE ACT OF APRIL 12, 1926, 44 STAT. 239, 240
241.  FN1  NOTICE OF THE PENDENCY OF THE PRESENT ACTION WAS DULY SERVED
UPON THE SUPERINTENDENT AND ON HIS MOTION THE CAUSE WAS REMOVED TO THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA.  JUDGMENT WAS
ENTERED FOR DEFENDANTS ON JUNE 6, 1945, THE COURT HOLDING THAT THE
UNITED STATES WAS NOT A NECESSARY PARTY TO THE 1935 HEIRSHIP
PROCEEDINGS, AND THAT NOTICE UNDER THE 1926 ACT WAS NOT NECESSARY TO
THE VALIDITY OF THAT DECREE.  ON APPEAL, THE COURT BELOW CERTIFIED THE
ABOVE QUESTION FOR OUR DETERMINATION. 

THE ACT OF JUNE 14, 1918, 40 STAT. 606, 25 U.S.C. SECS. 375, 355,
FN2  VESTED IN THE OKLAHOMA COURTS JURISDICTION TO DETERMINE HEIRSHIP
OF RESTRICTED INDIAN LANDS AND TO ENTERTAIN PROCEEDINGS TO PARTITION
SUCH LANDS.  FN3  SEE SECS. 1 AND 2.  IT IS A JURISDICTIONAL STATUTE
ONLY (SEE UNITED STATES V. HELLARD, 322 U.S. 363, 365) AND LEAVES OPEN
THE QUESTION WHETHER THE UNITED STATES IS A NECESSARY OR INDISPENSABLE
PARTY TO PROCEEDINGS UNDER EITHER SECTION. 

WE HELD IN UNITED STATES V. HELLARD, SUPRA, THAT THE UNITED STATES IS
A NECESSARY PARTY TO PARTITION PROCEEDINGS BROUGHT UNDER SEC. 2 OF THAT
ACT.  THAT HOLDING WAS BASED UPON THE DIRECT AND IMPORTANT INTERESTS OF
THE GOVERNMENT IN THE COURSE AND OUTCOME OF PARTITION PROCEEDINGS,
INTERESTS FLOWING FROM THE STATUTORY RESTRICTIONS ON ALIENATION OF
ALLOTTED LANDS.  LANDS PARTITIONED IN KIND TO FULL-BLOOD INDIANS REMAIN
RESTRICTED UNDER SEC. 2.  THUS THE UNITED STATES, AS GUARDIAN OF THE
INDIANS, IS DIRECTLY INTERESTED IN OBTAINING A PARTITION IN KIND, WHERE
THAT COURSE CONFORMS TO ITS POLICY OF PRESERVING RESTRICTED LANDS FOR
THE INDIANS, OR, IF A SALE IS DESIRABLE, IN INSURING THAT THE BEST
POSSIBLE PRICE IS OBTAINED.  MOREOVER, IF THE LANDS ARE BOTH RESTRICTED
AND TAX-EXEMPT, IT HAS AN INTEREST IN THE REINVESTMENT OF THE PROCEEDS
OF THE SALE IN SIMILARLY TAX-EXEMPT AND RESTRICTED LANDS.  ACT OF JUNE
30, 1932, 47 STAT. 474, 25 U.S.C. SEC. 409A.  AND THERE IS A FURTHER
INTEREST IN PROTECTING THE PREFERENTIAL RIGHT OF THE SECRETARY OF THE
INTERIOR TO PURCHASE THE LAND FOR ANOTHER INDIAN UNDER SEC. 2 OF THE
ACT OF JUNE 26, 1936, 49 STAT. 1967.  FOR THESE REASONS WE HELD IN
UNITED STATES V. HELLARD, SUPRA, THAT THE UNITED STATES WAS A NECESSARY
PARTY TO THE PARTITION PROCEEDINGS, EVEN ABSENT A STATUTORY REQUIREMENT
TO THAT EFFECT. 

HEIRSHIP PROCEEDINGS, HOWEVER, PRESENT QUITE DIFFERENT
CONSIDERATIONS.  THEY INVOLVE NO GOVERNMENTAL INTERESTS OF THE DIGNITY
OF THOSE INVOLVED IN PARTITION PROCEEDINGS.  RESTRICTIONS ON ALIENATION
DO NOT PREVENT INHERITANCE.  UNITED STATES V. HELLARD, SUPRA, P. 365. 
DEATH OF THE ALLOTTEE OPERATES TO REMOVE THE STATUTORY RESTRICTIONS ON
ALIENATION; AND THE DETERMINATION OF HEIRSHIP DOES NOT OF ITSELF
INVOLVE A SALE OF LAND.  FN4  THE HEIRSHIP PROCEEDING INVOLVES ONLY "A
DETERMINATION OF THE QUESTION OF FACT AS TO WHO ARE THE HEIRS OF ANY
DECEASED CITIZEN ALLOTTEE OF THE FIVE CIVILIZED TRIBES."  FN5  AS SUCH,
IT IS LITTLE MORE THAN AN IDENTIFICATION OF THOSE WHO BY LAW ARE
ENTITLED TO THE LANDS IN QUESTION AND DOES NOT DIRECTLY AFFECT THE
RESTRICTIONS ON THE LAND OR THE LAND ITSELF.  IMPORTANT AS THESE
PROCEEDINGS MAY BE TO THE STABILITY OF INDIAN LAND TITLES,  FN6  THEY
ARE OF PRIMARY INTEREST ONLY TO THE IMMEDIATE PARTIES.  THE UNITED
STATES IS, INDEED, HARDLY MORE THAN A STAKEHOLDER IN THE LITIGATION. 

THAT IS THE DISTINCTION BETWEEN PARTITION AND HEIRSHIP PROCEEDINGS
WHICH WE RECOGNIZED IN UNITED STATES V. HELLARD, SUPRA, PP. 365-366. 
WE ADHERE TO IT.  FN7  ACCORDINGLY THE QUESTION CERTIFIED IS ANSWERED
"NO."  SO ORDERED. 

FN1  SEC. 3 OF THE ACT, SO FAR AS MATERIAL HERE, PROVIDES:  "ANY ONE
OR MORE OF THE PARTIES TO A SUIT IN THE UNITED STATES COURTS IN THE
STATE OF OKLAHOMA OR IN THE STATE COURTS OF OKLAHOMA TO WHICH A
RESTRICTED MEMBER OF THE FIVE CIVILIZED TRIBES IN OKLAHOMA, OR THE
RESTRICTED HEIRS OR GRANTEES OF SUCH INDIAN ARE PARTIES, AS PLAINTIFF,
DEFENDANT, OR INTERVENOR, AND CLAIMING OR ENTITLED TO CLAIM TITLE TO OR
AN INTEREST IN LANDS ALLOTTED TO A CITIZEN OF THE FIVE CIVILIZED TRIBES
OR THE PROCEEDS, ISSUES, RENTS, AND PROFITS DERIVED FROM THE SAME, MAY
SERVE WRITTEN NOTICE OF THE PENDENCY OF SUCH SUIT UPON THE
SUPERINTENDENT FOR THE FIVE CIVILIZED TRIBES, AND THE UNITED STATES MAY
APPEAR IN SAID CAUSE WITHIN TWENTY DAYS THEREAFTER, OR WITHIN SUCH
EXTENDED TIME AS THE TRIAL COURT IN ITS DISCRETION MAY PERMIT, AND
AFTER SUCH APPEARANCE OR THE EXPIRATION OF SAID TWENTY DAYS OR ANY
EXTENSION THEREOF THE PROCEEDINGS AND JUDGMENT IN SAID CAUSE SHALL BIND
THE UNITED STATES AND THE PARTIES THERETO TO THE SAME EXTENT AS THOUGH
NO INDIAN LAND OR QUESTION WERE INVOLVED.  ...  PROVIDED, THAT WITHIN
TWENTY DAYS AFTER THE SERVICE OF SUCH NOTICE ON THE SUPERINTENDENT FOR
THE FIVE CIVILIZED TRIBES OR WITHIN SUCH EXTENDED TIME AS THE TRIAL
COURT IN ITS DISCRETION MAY PERMIT THE UNITED STATES MAY BE, AND HEREBY
IS, GIVEN THE RIGHT TO REMOVE ANY SUCH SUIT PENDING IN A STATE COURT TO
THE UNITED STATES DISTRICT COURT BY FILING IN SUCH SUIT IN THE STATE
COURT A PETITION FOR THE REMOVAL OF SUCH SUIT INTO THE SAID UNITED
STATES DISTRICT COURT, TO BE HELD IN THE DISTRICT WHERE SUCH SUIT IS
PENDING, TOGETHER WITH THE CERTIFIED COPY OF THE PLEADINGS IN SUCH SUIT
SERVED ON THE SUPERINTENDENT FOR THE FIVE CIVILIZED TRIBES AS
HEREINBEFORE PROVIDED.  IT SHALL THEN BE THE DUTY OF THE STATE COURT TO
ACCEPT SUCH PETITION AND PROCEED NO FURTHER IN SAID SUIT.  ...  "  SEE
UNITED STATES V. RICE, 327 U.S. 742, CF. 61 STAT. 731, 732, SEC. 3(C);
H.R. REP. NO. 740, 80TH CONG., 1ST SESS., P. 4. 

FN2  SEC. 1 PROVIDES:  "THAT A DETERMINATION OF THE QUESTION OF FACT
AS TO WHO ARE THE HEIRS OF ANY DECEASED CITIZEN ALLOTTEE OF THE FIVE
CIVILIZED TRIBES OF INDIANS WHO MAY DIE OR MAY HAVE HERETOFORE DIED,
LEAVING RESTRICTED HEIRS, BY THE PROBATE COURT OF THE STATE OF OKLAHOMA
HAVING JURISDICTION TO SETTLE THE ESTATE OF SAID DECEASED, CONDUCTED IN
THE MANNER PROVIDED BY THE LAWS OF SAID STATE FOR THE DETERMINATION OF
HEIRSHIP IN CLOSING UP THE ESTATES OF DECEASED PERSONS, SHALL BE
CONCLUSIVE OF SAID QUESTION  ...  " 

SEC. 2 PROVIDES:  "THAT THE LANDS OF FULL-BLOOD MEMBERS OF ANY OF THE
FIVE CIVILIZED TRIBES ARE HEREBY MADE SUBJECT TO THE LAWS OF THE STATE
OF OKLAHOMA, PROVIDING FOR THE PARTITION OF REAL ESTATE.  ANY LAND
ALLOTTED IN SUCH PROCEEDINGS TO A FULL-BLOOD INDIAN, OR CONVEYED TO HIM
UPON HIS ELECTION TO TAKE THE SAME AT THE APPRAISEMENT, SHALL REMAIN
SUBJECT TO ALL RESTRICTIONS UPON ALIENATION AND TAXATION OBTAINING
PRIOR TO SUCH PARTITION.  IN CASE OF A SALE UNDER ANY DECREE, OR
PARTITION, THE CONVEYANCE THEREUNDER SHALL OPERATE TO RELIEVE THE LAND
DESCRIBED OF ALL RESTRICTIONS OF EVERY CHARACTER." 

FN3  IT IS WELL-SETTLED THAT CONGRESS HAS AUTHORITY TO SELECT STATE
AGENCIES TO PERFORM SUCH FUNCTIONS.  UNITED STATES V. HELLARD, SUPRA,
P. 365. 

FN4  THE ACT OF APRIL 12, 1926, PROVIDES IN PART:  "THE DEATH OF ANY
ALLOTTEE OF THE FIVE CIVILIZED TRIBES SHALL OPERATE TO REMOVE ALL
RESTRICTIONS UPON THE ALIENATION OF SAID ALLOTTEE'S LAND:  PROVIDED,
THAT HEREAFTER NO CONVEYANCE BY ANY FULL-BLOOD INDIAN OF THE FIVE
CIVILIZED TRIBES OF ANY INTEREST IN LANDS RESTRICTED BY SECTION 1 OF
THIS ACT ACQUIRED BY INHERITANCE OR DEVISE FROM AN ALLOTTEE OF SUCH
LANDS SHALL BE VALID UNLESS APPROVED BY THE COUNTY COURT HAVING
JURISDICTION OF THE SETTLEMENT OF THE ESTATE OF THE DECEASED ALLOTTEE
OR TESTATOR  ...  "  SEE ALSO 61 STAT. 731, SEC. 1.  WE DO NOT HAVE
BEFORE US THE QUESTION AS TO WHETHER OR NOT THE UNITED STATES IS A
NECESSARY PARTY TO A PROCEEDING TO OBTAIN COURT APPROVAL OF A DEED
UNDER THE 1926 ACT. 

FN5  SEE SEC. 1 OF THE 1918 ACT, NOTE 2, SUPRA. 

FN6  SEE SEN. REP. NO. 330, 65TH CONG., 2D SESS., P. 1. 

FN7  SUBSEQUENT TO THE INSTITUTION OF THESE HEIRSHIP PROCEEDINGS, AND
AFTER THE DECISION IN THE HELLARD CASE, CONGRESS MARKED THIS
DISTINCTION BY PROVIDING THAT THE OKLAHOMA STATE COURTS SHOULD HAVE
EXCLUSIVE JURISDICTION IN ALL ACTIONS TO DETERMINE HEIRSHIP UNDER SEC.
1 OF THE 1918 ACT AND THAT THE UNITED STATES IS NOT A NECESSARY OR
INDISPENSABLE PARTY TO SUCH PROCEEDINGS.  61 STAT. 731, 732, SEC. 3(A)
AND (B).  MOREOVER, CONGRESS BY SEC. 3 OF THE ACT OF JULY 2, 1945, 59
STAT. 313, 314, PROVIDED THAT NO ORDER, JUDGMENT OR DECREE IN PARTITION
MADE SUBSEQUENT TO THE 1918 ACT AND PRIOR TO THE 1945 ACT AND INVOLVING
INHERITED RESTRICTED LANDS OF ENROLLED AND UNENROLLED MEMBERS OF THE
FIVE CIVILIZED TRIBES NOR ANY CONVEYANCE PURSUANT THERETO SHOULD BE
INVALID BECAUSE THE UNITED STATES WAS NOT A PARTY OR WAS NOT SERVED
WITH ANY NOTICE OR PROCESS IN CONNECTION THEREWITH. 

MR. JUSTICE REED, MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON
WOULD ANSWER THE QUESTION IN THE AFFIRMATIVE BECAUSE, IN THEIR VIEW,
THE PURPOSE OF CONGRESS WAS TO PERMIT THE INTERVENTION OF THE UNITED
STATES IN CASES IN WHICH A RESTRICTED MEMBER OF THE FIVE CIVILIZED
TRIBES IS A PARTY AND THEREFORE THE UNITED STATES IS A NECESSARY PARTY
TO THE PROCEEDINGS. 
..END :














COMMISSIONER V. SUNNEN, 333 U.S. 591 


NO. 227.  ARGUED DECEMBER 17, 1947.  - DECIDED APRIL 5, 1948.  - 161
F.2D 171, REVERSED. 


1.  A TAXPAYER OWNED 89% OF THE STOCK OF A MANUFACTURING CORPORATION
AND HIS WIFE OWNED 10%. THE CORPORATION WAS MANAGED BY FIVE DIRECTORS,
INCLUDING THE TAXPAYER AND HIS WIFE, ELECTED ANNUALLY BY THE
STOCKHOLDERS.  A VOTE OF THREE DIRECTORS WAS REQUIRED TO TAKE BINDING
ACTION.  IN EXCHANGE FOR A SPECIFIED ROYALTY, THE TAXPAYER GAVE THE
CORPORATION NON-EXCLUSIVE LICENSES TO MANUFACTURE AND SELL DEVICES
COVERED BY CERTAIN PATENTS WHICH HE OWNED.  THE LICENSES WERE
CANCELLABLE BY EITHER PARTY UPON GIVING APPROPRIATE NOTICE, SPECIFIED
NO MINIMUM ROYALTIES, AND DID NOT BIND THE CORPORATION TO MANUFACTURE
AND SELL ANY PARTICULAR NUMBER OF THE PATENTED DEVICES.  THE TAXPAYER
ASSIGNED HIS INTEREST IN THE ROYALTY AGREEMENTS TO HIS WIFE, WHO
REPORTED THE INCOME THEREFROM AS HERS.  HELD:  THE FACTS WERE
SUFFICIENT TO SUPPORT A FINDING BY THE TAX COURT THAT THE TAXPAYER
RETAINED SUFFICIENT INTEREST IN THE ROYALTY CONTRACTS AND SUFFICIENT
CONTROL OVER THE AMOUNT OF INCOME DERIVED THEREFROM TO JUSTIFY TAXING
THE INCOME AS HIS.  PP. 607-610. 

2.  THE GENERAL RULE OF RES JUDICATA APPLIES TO TAX PROCEEDINGS
INVOLVING THE SAME CLAIM AND THE SAME TAX YEAR, WHILE THE DOCTRINE OF
COLLATERAL ESTOPPEL, WHICH IS A NARROWER VERSION OF THE RES JUDICATA
RULE, APPLIES TO TAX PROCEEDINGS INVOLVING SIMILAR OR UNLIKE CLAIMS AND
DIFFERENT TAX YEARS.  P. 598. 

3.  AN EARLIER DECISION OF THE BOARD OF TAX APPEALS INVOLVING A
SIMILAR ROYALTY AGREEMENT AND ASSIGNMENT BUT DIFFERENT LICENSE
CONTRACTS AND DIFFERENT TAX YEARS WAS NOT CONCLUSIVE OF THE CONTROVERSY
UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL.  P. 602. 

4.  AN EARLIER DECISION OF THE BOARD OF TAX APPEALS INVOLVING THE
SAME FACTS, ISSUES AND PARTIES BUT DIFFERENT TAX YEARS AND MADE PRIOR
TO THE DECISIONS OF THIS COURT IN HELVERING V. CLIFFORD, 309 U.S. 331;
HELVERING V. HORST, 311 U.S. 112; HELVERING V. EUBANK, 311 U.S. 122;
HARRISON V. SCHAFFNER, 312 U.S. 579; COMMISSIONER V. TOWER, 327 U.S.
280; AND LUSTHAUS V. COMMISSIONER, 327 U.S. 293, WAS NOT CONCLUSIVE OF
THE CONTROVERSY UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL.  PP. 602
607. 

5.  THE DOCTRINE OF COLLATERAL ESTOPPEL OR ESTOPPEL BY JUDGMENT IS
NOT MEANT TO CREATE VESTED RIGHTS IN DECISIONS THAT HAVE BECOME
OBSOLETE OR ERRONEOUS WITH TIME, THEREBY CAUSING INEQUITIES AMONG
TAXPAYERS.  P. 599. 

6.  WHERE TWO CASES INVOLVE INCOME TAXES IN DIFFERENT TAX YEARS,
COLLATERAL ESTOPPEL MUST BE CONFINED TO SITUATIONS WHERE THE MATTER
RAISED IN THE SECOND SUIT IS IDENTICAL IN ALL RESPECTS WITH THAT
DECIDED IN THE FIRST AND WHERE THE CONTROLLING FACTS AND APPLICABLE
LEGAL RULES REMAIN UNCHANGED.  PP. 599-600. 

7. THE DOCTRINE OF COLLATERAL ESTOPPEL IS INAPPLICABLE IN LITIGATION
REGARDING INCOME TAXES FOR DIFFERENT YEARS WHERE DECISIONS OF THIS
COURT INTERVENING BETWEEN THE EARLIER AND LATER LITIGATION HAVE CHANGED
THE APPLICABLE LEGAL PRINCIPLES.  P. 600. 

8.  IF THE RELEVANT FACTS IN TWO CASES INVOLVING INCOME TAXES FOR
DIFFERENT YEARS ARE SEPARABLE, EVEN THOUGH THEY BE SIMILAR OR
IDENTICAL, COLLATERAL ESTOPPEL DOES NOT GOVERN THE LEGAL ISSUES WHICH
RECUR IN THE SECOND CASE.  P. 601. 

9.  THE CLARIFICATION AND GROWTH OF THE PRINCIPLES GOVERNING THE
EFFECT OF INTRA-FAMILY ASSIGNMENTS AND TRANSFERS ON LIABILITY FOR
INCOME TAXES THROUGH DECISIONS OF THIS COURT SINCE 1939 EFFECTED A
SUFFICIENT CHANGE IN THE LEGAL CLIMATE TO RENDER A 1935 DECISION OF THE
BOARD OF TAX APPEALS INAPPLICABLE UNDER THE DOCTRINE OF COLLATERAL
ESTOPPEL TO CASES ARISING SUBSEQUENTLY AND INVOLVING THESE PRINCIPLES. 
PP. 606-607. 

COMMISSIONER OF INTERNAL REVENUE V. SUNNEN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

THE TAX COURT HELD A HUSBAND TAXABLE ON THE INCOME FROM CERTAIN
ROYALTIES ASSIGNED BY HIM TO HIS WIFE BUT NOT TAXABLE ON THE INCOME
FROM CERTAIN OTHER ROYALTIES FOR A CERTAIN YEAR.  6 T.C. 431.  THE
CIRCUIT COURT OF APPEALS AFFIRMED THE PART OF THE JUDGMENT FAVORABLE TO
THE TAXPAYER AND REVERSED THE PART ADVERSE TO HIM.  161 F.2D 171.  THIS
COURT GRANTED CERTIORARI.  332 U.S. 756.  REVERSED, P. 610. 

OPINION OF THE COURT BY MR. JUSTICE MURPHY, ANNOUNCED BY MR. JUSTICE
RUTLEDGE. 

THE PROBLEM OF THE FEDERAL INCOME TAX CONSEQUENCES OF INTRA-FAMILY
ASSIGNMENTS OF INCOME IS BROUGHT INTO FOCUS AGAIN BY THIS CASE. 

THE STIPULATED FACTS CONCERN THE TAXABLE YEARS 1937 TO 1941,
INCLUSIVE, AND MAY BE SUMMARIZED AS FOLLOWS: 

THE RESPONDENT TAXPAYER WAS AN INVENTOR-PATENTEE AND THE PRESIDENT OF
THE SUNNEN PRODUCTS COMPANY, A CORPORATION ENGAGED IN THE MANUFACTURE
AND SALE OF PATENTED GRINDING MACHINES AND OTHER TOOLS.  HE HELD 89% OR
1,780 OUT OF A TOTAL OF 2,000 SHARES OF THE OUTSTANDING STOCK OF THE
CORPORATION.  HIS WIFE HELD 200 SHARES, THE VICE-PRESIDENT HELD 18
SHARES AND TWO OTHERS CONNECTED WITH THE CORPORATION HELD ONE SHARE
EACH.  THE CORPORATION'S BOARD OF DIRECTORS CONSISTED OF FIVE MEMBERS,
INCLUDING THE TAXPAYER AND HIS WIFE.  THIS BOARD WAS ELECTED ANNUALLY
BY THE STOCKHOLDERS.  A VOTE OF THREE DIRECTORS WAS REQUIRED TO TAKE
BINDING ACTION. 

THE TAXPAYER HAD ENTERED INTO SEVERAL NON-EXCLUSIVE AGREEMENTS
WHEREBY THE CORPORATION WAS LICENSED TO MANUFACTURE AND SELL VARIOUS
DEVICES ON WHICH HE HAD APPLIED FOR PATENTS.  FN1  IN RETURN, THE
CORPORATION AGREED TO PAY TO THE TAXPAYER A ROYALTY EQUAL TO 10% OF THE
GROSS SALES PRICE OF THE DEVICES.  THESE AGREEMENTS DID NOT REQUIRE THE
CORPORATION TO MANUFACTURE AND SELL ANY PARTICULAR NUMBER OF DEVICES;
NOR DID THEY SPECIFY A MINIMUM AMOUNT OF ROYALTIES.  EACH PARTY HAD THE
RIGHT TO CANCEL THE LICENSES, WITHOUT LIABILITY, BY GIVING THE OTHER
PARTY WRITTEN NOTICE OF EITHER SIX MONTHS OR A YEAR.  FN2  IN THE
ABSENCE OF CANCELLATION, THE AGREEMENTS WERE TO CONTINUE IN FORCE FOR
TEN YEARS.  THE BOARD OF DIRECTORS AUTHORIZED THE CORPORATION TO
EXECUTE EACH OF THESE CONTRACTS.  NO NOTICES OF CANCELLATION WERE
GIVEN.  TWO OF THE AGREEMENTS WERE IN EFFECT THROUGHOUT THE TAXABLE
YEARS 1937-1941, WHILE THE OTHER TWO WERE IN EXISTENCE AT ALL PERTINENT
TIMES AFTER JUNE 20, 1939. 

THE TAXPAYER AT VARIOUS TIMES ASSIGNED TO HIS WIFE ALL HIS RIGHT,
TITLE AND INTEREST IN THE VARIOUS LICENSE CONTRACTS.  FN3  SHE WAS
GIVEN EXCLUSIVE TITLE AND POWER OVER THE ROYALTIES ACCRUING UNDER THESE
CONTRACTS.  ALL THE ASSIGNMENTS WERE WITHOUT CONSIDERATION AND WERE
MADE AS GIFTS TO THE WIFE, THOSE OCCURRING AFTER 1932 BEING REPORTED BY
THE TAXPAYER FOR GIFT TAX PURPOSES.  THE CORPORATION WAS NOTIFIED OF
EACH ASSIGNMENT. 

IN 1937 THE CORPORATION, PURSUANT TO THIS ARRANGEMENT, PAID THE WIFE
ROYALTIES IN THE AMOUNT OF $4,881.35 ON THE LICENSE CONTRACT MADE IN
1928; NO OTHER ROYALTIES ON THAT CONTRACT WERE PAID DURING THE TAXABLE
YEARS IN QUESTION.  THE WIFE RECEIVED ROYALTIES FROM OTHER CONTRACTS
TOTALING $15,518.68 IN 1937, $17,318.80 IN 1938, $25,243.77 IN 1939,
$50,492.50 IN 1940, AND $149,002.78 IN 1941.  SHE INCLUDED ALL THESE
PAYMENTS IN HER INCOME TAX RETURNS FOR THOSE YEARS, AND THE TAXES SHE
PAID THEREON HAVE NOT BEEN REFUNDED. 

RELYING UPON ITS OWN PRIOR DECISION IN ESTATE OF DODSON V.
COMMISSIONER, 1 T.C. 416,  FN4  THE TAX COURT HELD THAT, WITH ONE
EXCEPTION, ALL THE ROYALTIES PAID TO THE WIFE FROM 1937 TO 1941 WERE
PART OF THE TAXABLE INCOME OF THE TAXPAYER.  6 T.C. 431.  THE ONE
EXCEPTION CONCERNED THE ROYALTIES OF $4,881.35 PAID IN 1937 UNDER THE
1928 AGREEMENT.  IN AN EARLIER PROCEEDING IN 1935, THE BOARD OF TAX
APPEALS DEALT WITH THE TAXPAYER'S INCOME TAX LIABILITY FOR THE YEARS
1929-1931; IT CONCLUDED THAT HE WAS NOT TAXABLE ON THE ROYALTIES PAID
TO HIS WIFE DURING THOSE YEARS UNDER THE 1928 LICENSE AGREEMENT.  THIS
PRIOR DETERMINATION BY THE BOARD CAUSED THE TAX COURT TO APPLY THE
PRINCIPLE OF RES JUDICATA TO BAR A DIFFERENT RESULT AS TO THE ROYALTIES
PAID PURSUANT TO THE SAME AGREEMENT DURING 1937. 

THE TAX COURT'S DECISION WAS AFFIRMED IN PART AND REVERSED IN PART BY
THE EIGHTH CIRCUIT COURT OF APPEALS.  161 F.2D 171.  APPROVAL WAS GIVEN
TO THE TAX COURT'S APPLICATION OF THE RES JUDICATA DOCTRINE TO EXCLUDE
FROM THE TAXPAYER'S INCOME THE $4,881.35 IN ROYALTIES PAID IN 1937
UNDER THE 1928 AGREEMENT.  BUT TO THE EXTENT THAT THE TAXPAYER HAD BEEN
HELD TAXABLE ON ROYALTIES PAID TO HIS WIFE DURING THE TAXABLE YEARS OF
1937-1941, THE DECISION WAS REVERSED ON THE THEORY THAT SUCH PAYMENTS
WERE NOT INCOME TO HIM.  BECAUSE OF THAT CONCLUSION, THE CIRCUIT COURT
OF APPEALS FOUND IT UNNECESSARY TO DECIDE THE TAXPAYER'S ADDITIONAL
CLAIM THAT THE RES JUDICATA DOCTRINE APPLIED AS WELL TO THE OTHER
ROYALTIES (THOSE ACCRUING APART FROM THE 1928 AGREEMENT) PAID IN THE
TAXABLE YEARS.  WE THEN BROUGHT THE CASE HERE ON CERTIORARI, THE
COMMISSIONER ALLEGING THAT THE RESULT BELOW CONFLICTS WITH PRIOR
DECISIONS OF THIS COURT. 

IF THE DOCTRINE OF RES JUDICATA IS PROPERLY APPLICABLE SO THAT ALL
THE ROYALTY PAYMENTS MADE DURING 1937-1941 ARE GOVERNED BY THE PRIOR
DECISION OF THE BOARD OF TAX APPEALS, THE CASE MAY BE DISPOSED OF
WITHOUT REACHING THE MERITS OF THE CONTROVERSY.  WE ACCORDINGLY CAST
OUR ATTENTION INITIALLY ON THAT POSSIBILITY, ONE THAT HAS BEEN EXPLORED
BY THE TAX COURT AND THAT HAS BEEN FULLY ARGUED BY THE PARTIES BEFORE
US. 

IT IS FIRST NECESSARY TO UNDERSTAND SOMETHING OF THE RECOGNIZED
MEANING AND SCOPE OF RES JUDICATA, A DOCTRINE JUDICIAL IN ORIGIN.  THE
GENERAL RULE OF RES JUDICATA APPLIES TO REPETITIOUS SUITS INVOLVING THE
SAME CAUSE OF ACTION.  IT RESTS UPON CONSIDERATIONS OF ECONOMY OF
JUDICIAL TIME AND PUBLIC POLICY FAVORING THE ESTABLISHMENT OF CERTAINTY
IN LEGAL RELATIONS.  THE RULE PROVIDES THAT WHEN A COURT OF COMPETENT
JURISDICTION HAS ENTERED A FINAL JUDGMENT ON THE MERITS OF A CAUSE OF
ACTION, THE PARTIES TO THE SUIT AND THEIR PRIVIES ARE THEREAFTER BOUND
"NOT ONLY AS TO EVERY MATTER WHICH WAS OFFERED AND RECEIVED TO SUSTAIN
OR DEFEAT THE CLAIM OR DEMAND, BUT AS TO ANY OTHER ADMISSIBLE MATTER
WHICH MIGHT HAVE BEEN OFFERED FOR THAT PURPOSE."  CROMWELL V. COUNTY OF
SAC, 94 U.S. 351, 352.  THE JUDGMENT PUTS AN END TO THE CAUSE OF
ACTION, WHICH CANNOT AGAIN BE BROUGHT INTO LITIGATION BETWEEN THE
PARTIES UPON ANY GROUND WHATEVER, ABSENT FRAUD OR SOME OTHER FACTOR
INVALIDATING THE JUDGMENT.  SEE VON MOSCHZISKER, "RES JUDICATA," 38
YALE L.J. 299; RESTATEMENT OF THE LAW OF JUDGMENTS, SECS. 47, 48. 

BUT WHERE THE SECOND ACTION BETWEEN THE SAME PARTIES IS UPON A
DIFFERENT CAUSE OR DEMAND, THE PRINCIPLE OF RES JUDICATA IS APPLIED
MUCH MORE NARROWLY.  IN THIS SITUATION, THE JUDGMENT IN THE PRIOR
ACTION OPERATES AS AN ESTOPPEL, NOT AS TO MATTERS WHICH MIGHT HAVE BEEN
LITIGATED AND DETERMINED, BUT "ONLY AS TO THOSE MATTERS IN ISSUE OR
POINTS CONTROVERTED, UPON THE DETERMINATION OF WHICH THE FINDING OR
VERDICT WAS RENDERED."  CROMWELL V. COUNTY OF SAC, SUPRA, 353.  AND SEE
RUSSELL V. PLACE, 94 U.S. 606; SOUTHERN PACIFIC R. CO. V. UNITED
STATES, 168 U.S. 1, 48; MERCOID CORP. V. MID-CONTINENT CO., 320 U.S.
661, 671.  SINCE THE CAUSE OF ACTION INVOLVED IN THE SECOND PROCEEDING
IS NOT SWALLOWED BY THE JUDGMENT IN THE PRIOR SUIT, THE PARTIES ARE
FREE TO LITIGATE POINTS WHICH WERE NOT AT ISSUE IN THE FIRST
PROCEEDING, EVEN THOUGH SUCH POINTS MIGHT HAVE BEEN TENDERED AND
DECIDED AT THAT TIME.  BUT MATTERS WHICH WERE ACTUALLY LITIGATED AND
DETERMINED IN THE FIRST PROCEEDING CANNOT LATER BE RELITIGATED.  ONCE A
PARTY HAS FOUGHT OUT A MATTER IN LITIGATION WITH THE OTHER PARTY, HE
CANNOT LATER RENEW THAT DUEL.  IN THIS SENSE, RES JUDICATA IS USUALLY
AND MORE ACCURATELY REFERRED TO AS ESTOPPEL BY JUDGMENT, OR COLLATERAL
ESTOPPEL.  SEE RESTATEMENT OF THE LAW OF JUDGMENTS, SECS. 68, 69, 70;
SCOTT, "COLLATERAL ESTOPPEL BY JUDGMENT," 56 HARV. L. REV. 1. 

THESE SAME CONCEPTS ARE APPLICABLE IN THE FEDERAL INCOME TAX FIELD. 
INCOME TAXES ARE LEVIED ON AN ANNUAL BASIS.  EACH YEAR IS THE ORIGIN OF
A NEW LIABILITY AND OF A SEPARATE CAUSE OF ACTION.  THUS IF A CLAIM OF
LIABILITY OR NON-LIABILITY RELATING TO A PARTICULAR TAX YEAR IS
LITIGATED, A JUDGMENT ON THE MERITS IS RES JUDICATA AS TO ANY
SUBSEQUENT PROCEEDING INVOLVING THE SAME CLAIM AND THE SAME TAX YEAR. 
BUT IF THE LATER PROCEEDING IS CONCERNED WITH A SIMILAR OR UNLIKE CLAIM
RELATING TO A DIFFERENT TAX YEAR, THE PRIOR JUDGMENT ACTS AS A
COLLATERAL ESTOPPEL ONLY AS TO THOSE MATTERS IN THE SECOND PROCEEDING
WHICH WERE ACTUALLY PRESENTED AND DETERMINED IN THE FIRST SUIT. 
COLLATERAL ESTOPPEL OPERATES, IN OTHER WORDS, TO RELIEVE THE GOVERNMENT
AND THE TAXPAYER OF "REDUNDANT LITIGATION OF THE IDENTICAL QUESTION OF
THE STATUTE'S APPLICATION TO THE TAXPAYER'S STATUS."  TAIT V. WESTERN
MD. R. CO., 289 U.S. 620, 624. 

BUT COLLATERAL ESTOPPEL IS A DOCTRINE CAPABLE OF BEING APPLIED SO AS
TO AVOID AN UNDUE DISPARITY IN THE IMPACT OF INCOME TAX LIABILITY.  A
TAXPAYER MAY SECURE A JUDICIAL DETERMINATION OF A PARTICULAR TAX
MATTER, A MATTER WHICH MAY RECUR WITHOUT SUBSTANTIAL VARIATION FOR SOME
YEARS THEREAFTER.  BUT A SUBSEQUENT MODIFICATION OF THE SIGNIFICANT
FACTS OR A CHANGE OR DEVELOPMENT IN THE CONTROLLING LEGAL PRINCIPLES
MAY MAKE THAT DETERMINATION OBSOLETE OR ERRONEOUS, AT LEAST FOR FUTURE
PURPOSES.  IF SUCH A DETERMINATION IS THEN PERPETUATED EACH SUCCEEDING
YEAR AS TO THE TAXPAYER INVOLVED IN THE ORIGINAL LITIGATION, HE IS
ACCORDED A TAX TREATMENT DIFFERENT FROM THAT GIVEN TO OTHER TAXPAYERS
OF THE SAME CLASS.  AS A RESULT, THERE ARE INEQUALITIES IN THE
ADMINISTRATION OF THE REVENUE LAWS, DISCRIMINATORY DISTINCTIONS IN TAX
LIABILITY, AND A FERTILE BASIS FOR LITIGIOUS CONFUSION.  COMPARE UNITED
STATES V. STONE & DOWNER CO., 274 U.S. 225, 235-236.  SUCH
CONSEQUENCES, HOWEVER, ARE NEITHER NECESSITATED NOR JUSTIFIED BY THE
PRINCIPLE OF COLLATERAL ESTOPPEL.  THAT PRINCIPLE IS DESIGNED TO
PREVENT REPETITIOUS LAWSUITS OVER MATTERS WHICH HAVE ONCE BEEN DECIDED
AND WHICH HAVE REMAINED SUBSTANTIALLY STATIC, FACTUALLY AND LEGALLY. 
IT IS NOT MEANT TO CREATE VESTED RIGHTS IN DECISIONS THAT HAVE BECOME
OBSOLETE OR ERRONEOUS WITH TIME, THEREBY CAUSING INEQUITIES AMONG
TAXPAYERS. 

AND SO WHERE TWO CASES INVOLVE INCOME TAXES IN DIFFERENT TAXABLE
YEARS, COLLATERAL ESTOPPEL MUST BE USED WITH ITS LIMITATIONS CAREFULLY
IN MIND SO AS TO AVOID INJUSTICE.  IT MUST BE CONFINED TO SITUATIONS
WHERE THE MATTER RAISED IN THE SECOND SUIT IS IDENTICAL IN ALL RESPECTS
WITH THAT DECIDED IN THE FIRST PROCEEDING AND WHERE THE CONTROLLING
FACTS AND APPLICABLE LEGAL RULES REMAIN UNCHANGED.  TAIT V. WESTERN MD.
R. CO., SUPRA.  IF THE LEGAL MATTERS DETERMINED IN THE EARLIER CASE
DIFFER FROM THOSE RAISED IN THE SECOND CASE, COLLATERAL ESTOPPEL HAS NO
BEARING ON THE SITUATION.  SEE TRAVELERS INS. CO. V. COMMISSIONER, 161
F.2D 93.  AND WHERE THE SITUATION IS VITALLY ALTERED BETWEEN THE TIME
OF THE FIRST JUDGMENT AND THE SECOND, THE PRIOR DETERMINATION IS NOT
CONCLUSIVE.  SEE STATE FARM INS. CO. V. DUEL, 324 U.S. 154, 162; 2
FREEMAN ON JUDGMENTS (5TH ED. 1925) SEC. 713.  AS DEMONSTRATED BY BLAIR
V. COMMISSIONER, 300 U.S. 5, 9, A JUDICIAL DECLARATION INTERVENING
BETWEEN THE TWO PROCEEDINGS MAY SO CHANGE THE LEGAL ATMOSPHERE AS TO
RENDER THE RULE OF COLLATERAL ESTOPPEL INAPPLICABLE.  FN5  BUT THE
INTERVENING DECISION NEED NOT NECESSARILY BE THAT OF A STATE COURT, AS
IT WAS IN THE BLAIR CASE.  WHILE SUCH A STATE COURT DECISION MAY BE
CONSIDERED AS HAVING CHANGED THE FACTS FOR FEDERAL TAX LITIGATION
PURPOSES, A MODIFICATION OR GROWTH IN LEGAL PRINCIPLES AS ENUNCIATED IN
INTERVENING DECISIONS OF THIS COURT MAY ALSO EFFECT A SIGNIFICANT
CHANGE IN THE SITUATION.  TAX INEQUALITY CAN RESULT AS READILY FROM
NEGLECTING LEGAL MODULATIONS BY THIS COURT AS FROM DISREGARDING FACTUAL
CHANGES WRONGHT BY STATE COURTS.  IN EITHER EVENT, THE SUPERVENING
DECISION CANNOT JUSTLY BE IGNORED BY BLIND RELIANCE UPON THE RULE OF
COLLATERAL ESTOPPEL.  HENRICKSEN V. SEWARD, 135 F.2D 986, 988-989;
PELHAM HALL CO. V. HASSETT, 147 F.2D 63, 68-69; COMMISSIONER V. ARUNDEL
BROOKS CONCRETE CORP., 152 F.2D 225, 227; CORRIGAN V. COMMISSIONER, 155
F.2D 164, 165; AND SEE WEST COAST LIFE INS. CO. V. MERCED IRR.  DIST.,
114 F.2D 654, 661-662; CONTRA:  COMMISSIONER V. WESTERN UNION TEL. CO.,
141 F.2D 774, 778.  IT NATURALLY FOLLOWS THAT AN INTERPOSED ALTERATION
IN THE PERTINENT STATUTORY PROVISIONS OR TREASURY REGULATIONS CAN MAKE
THE USE OF THAT RULE UNWARRANTED.  TAIT V. WESTERN MD. R. CO., SUPRA,
625.  FN6 

OF COURSE, WHERE A QUESTION OF FACT ESSENTIAL TO THE JUDGMENT IS
ACTUALLY LITIGATED AND DETERMINED IN THE FIRST TAX PROCEEDING, THE
PARTIES ARE BOUND BY THAT DETERMINATION IN A SUBSEQUENT PROCEEDING EVEN
THOUGH THE CAUSE OF ACTION IS DIFFERENT.  SEE THE EVERGREENS V. NUNAN,
141 F.2D 927.  AND IF THE VERY SAME FACTS AND NO OTHERS ARE INVOLVED IN
THE SECOND CASE, A CASE RELATING TO A DIFFERENT TAX YEAR, THE PRIOR
JUDGMENT WILL BE CONCLUSIVE AS TO THE SAME LEGAL ISSUES WHICH APPEAR,
ASSUMING NO INTERVENING DOCTRINAL CHANGE.  BUT IF THE RELEVANT FACTS IN
THE TWO CASES ARE SEPARABLE, EVEN THOUGH THEY BE SIMILAR OR IDENTICAL,
COLLATERAL ESTOPPEL DOES NOT GOVERN THE LEGAL ISSUES WHICH RECUR IN THE
SECOND CASE.  FN7  THUS THE SECOND PROCEEDING MAY INVOLVE AN INSTRUMENT
OR TRANSACTION IDENTICAL WITH, BUT IN A FORM SEPARABLE FROM, THE ONE
DEALT WITH IN THE FIRST PROCEEDING.  IN THAT SITUATION, A COURT IS FREE
IN THE SECOND PROCEEDING TO MAKE AN INDEPENDENT EXAMINATION OF THE
LEGAL MATTERS AT ISSUE.  IT MAY THEN REACH A DIFFERENT RESULT OR, IF
CONSISTENCY IN DECISION IS CONSIDERED JUST AND DESIRABLE, RELIANCE MAY
BE PLACED UPON THE ORDINARY RULE OF STARE DECISIS.  BEFORE A PARTY CAN
INVOKE THE COLLATERAL ESTOPPEL DOCTRINE IN THESE CIRCUMSTANCES, THE
LEGAL MATTER RAISED IN THE SECOND PROCEEDING MUST INVOLVE THE SAME SET
OF EVENTS OR DOCUMENTS AND THE SAME BUNDLE OF LEGAL PRINCIPLES THAT
CONTRIBUTED TO THE RENDERING OF THE FIRST JUDGMENT.  TAIT V. WESTERN
MD. R. CO., SUPRA.  AND SEE GRISWOLD, "RES JUDICATA IN FEDERAL TAX
CASES," 46 YALE L.J. 1320; PAUL AND ZIMET, "RES JUDICATA IN FEDERAL
TAXATION," APPEARING IN PAUL, SELECTED STUDIES IN FEDERAL TAXATION (2D
SERIES, 1938), P. 104. 

IT IS READILY APPARENT IN THIS CASE THAT THE ROYALTY PAYMENTS GROWING
OUT OF THE LICENSE CONTRACTS WHICH WERE NOT INVOLVED IN THE EARLIER
ACTION BEFORE THE BOARD OF TAX APPEALS AND WHICH CONCERNED DIFFERENT
TAX YEARS ARE FREE FROM THE EFFECTS OF THE COLLATERAL ESTOPPEL
DOCTRINE.  THAT IS TRUE EVEN THOUGH THOSE CONTRACTS ARE IDENTICAL IN
ALL IMPORTANT RESPECTS WITH THE 1928 CONTRACT, THE ONLY ONE THAT WAS
BEFORE THE BOARD, AND EVEN THOUGH THE ISSUE AS TO THOSE CONTRACTS IS
THE SAME AS THAT RAISED BY THE 1928 CONTRACT.  FOR INCOME TAX PURPOSES,
WHAT IS DECIDED AS TO ONE CONTRACT IS NOT CONCLUSIVE AS TO ANY OTHER
CONTRACT WHICH IS NOT THEN IN ISSUE, HOWEVER, SIMILAR OR IDENTICAL IT
MAY BE.  IN THIS RESPECT, THE INSTANT CASE THUS DIFFERS VITALLY FROM
TAIT V. WESTERN MD. R. CO., SUPRA, WHERE THE TWO PROCEEDINGS INVOLVED
THE SAME INSTRUMENTS AND THE SAME SURROUNDING FACTS. 

A MORE DIFFICULT PROBLEM IS POSED AS TO THE $4,881.35 IN ROYALTIES
PAID TO THE TAXPAYER'S WIFE IN 1937 UNDER THE 1928 CONTRACT.  HERE
THERE IS COMPLETE IDENTITY OF FACTS, ISSUES AND PARTIES AS BETWEEN THE
EARLIER BOARD PROCEEDING AND THE INSTANT ONE.  THE COMMISSIONER CLAIMS,
HOWEVER, THAT LEGAL PRINCIPLES DEVELOPED IN VARIOUS INTERVENING
DECISIONS OF THIS COURT HAVE MADE PLAIN THE ERROR OF THE BOARD'S
CONCLUSION IN THE EARLIER PROCEEDING, THUS CREATING A SITUATION LIKE
THAT INVOLVED IN BLAIR V. COMMISSIONER, SUPRA.  THIS CHANGE IN THE
LEGAL PICTURE IS SAID TO HAVE BEEN BROUGHT ABOUT BY SUCH CASES AS
HELVERING V. CLIFFORD, 309 U.S. 331; HELVERING V. HORST, 311 U.S. 112;
HELVERING V. EUBANK, 311 U.S. 122; HARRISON V. SCHAFFNER, 312 U.S. 579;
COMMISSIONER V. TOWER, 327 U.S. 280; AND LUSTHAUS V. COMMISSIONER, 327
U.S. 293.  .THESE CASES ALL IMPOSED INCOME TAX LIABILITY ON TRANSFERORS
WHO HAD ASSIGNED OR TRANSFERRED VARIOUS FORMS OF INCOME TO OTHERS
WITHIN THEIR FAMILY GROUPS, ALTHOUGH NONE SPECIFICALLY RELATED TO THE
ASSIGNMENT OF PATENT LICENSE CONTRACTS BETWEEN MEMBERS OF THE SAME
FAMILY.  IT MUST THEREFORE BE DETERMINED WHETHER THIS CLIFFORD-HORST
LINE OF CASES REPRESENTS AN INTERVENING LEGAL DEVELOPMENT WHICH IS
PERTINENT TO THE PROBLEM RAISED BY THE ASSIGNMENT OF THE 1928 AGREEMENT
AND WHICH MAKES MANIFEST THE ERROR OF THE RESULT REACHED IN 1935 BY THE
BOARD.  IF THAT IS THE SITUATION, THE DOCTRINE OF COLLATERAL ESTOPPEL
BECOMES INAPPLICABLE.  A DIFFERENT RESULT IS THEN PERMISSIBLE AS TO THE
ROYALTIES PAID IN 1937 UNDER THE AGREEMENT IN QUESTION.  BUT TO
DETERMINE WHETHER THE CLIFFORD-HORST SERIES OF CASES HAS SUCH AN EFFECT
ON THE INSTANT PROCEEDING NECESSARILY REQUIRES INQUIRY INTO THE MERITS
OF THE CONTROVERSY GROWING OUT OF THE VARIOUS CONTRACT ASSIGNMENTS FROM
THE TAXPAYER TO HIS WIFE.  TO THAT CONTROVERSY WE NOW TURN.  FN8 

HAD THE TAXPAYER RETAINED THE VARIOUS LICENSE CONTRACTS AND ASSIGNED
TO HIS WIFE THE RIGHT TO RECEIVE THE ROYALTY PAYMENTS ACCRUING
THEREUNDER, SUCH PAYMENTS WOULD CLEARLY HAVE BEEN TAXABLE INCOME TO
HIM.  IT HAS LONG BEEN ESTABLISHED THAT THE MERE ASSIGNMENT OF THE
RIGHT TO RECEIVE INCOME IS NOT ENOUGH TO INSULATE THE ASSIGNOR FROM
INCOME TAX LIABILITY.  LUCAS V. EARL, 281 U.S. 111; BURNET V.
LEININGER, 285 U.S. 136.  AS LONG AS THE ASSIGNOR ACTUALLY EARNS THE
INCOME OR IS OTHERWISE THE SOURCE OF THE RIGHT TO RECEIVE AND ENJOY THE
INCOME, HE REMAINS TAXABLE.  THE PROBLEM HERE IS WHETHER ANY DIFFERENT
RESULT FOLLOWS BECAUSE THE TAXPAYER ASSIGNED THE UNDERLYING CONTRACTS
TO HIS WIFE IN ADDITION TO GIVING HER THE RIGHT TO RECEIVE THE ROYALTY
PAYMENTS. 

IT IS THE TAXPAYER'S CONTENTION THAT THE LICENSE CONTRACTS RATHER
THAN THE PATENTS AND THE PATENT APPLICATIONS WERE THE ULTIMATE SOURCE
OF THE ROYALTY PAYMENTS AND CONSTITUTED INCOME-PRODUCING PROPERTY, THE
ASSIGNMENT OF WHICH FREED THE TAXPAYER FROM FURTHER INCOME TAX
LIABILITY.  WE DEEM IT UNNECESSARY, HOWEVER, TO MEET THAT CONTENTION IN
THIS CASE.  IT IS NOT ENOUGH TO TRACE INCOME TO THE PROPERTY WHICH IS
ITS TRUE SOURCE, A MATTER WHICH MAY BECOME MORE METAPHYSICAL THAN
LEGAL.  NOR IS THE TAX PROBLEM WITH WHICH WE ARE CONCERNED NECESSARILY
ANSWERED BY THE FACT THAT SUCH PROPERTY, IF IT CAN BE PROPERLY
IDENTIFIED, HAS BEEN ASSIGNED.  THE CRUCIAL QUESTION REMAINS WHETHER
THE ASSIGNOR RETAINS SUFFICIENT POWER AND CONTROL OVER THE ASSIGNED
PROPERTY OR OVER RECEIPT OF THE INCOME TO MAKE IT REASONABLE TO TREAT
HIM AS THE RECIPIENT OF THE INCOME FOR TAX PURPOSES.  AS WAS SAID IN
CORLISS V. BOWERS, 281 U.S. 376, 378, "TAXATION IS NOT SO MUCH
CONCERNED WITH THE REFINEMENTS OF TITLE AS IT IS WITH ACTUAL COMMAND
OVER THE PROPERTY TAXED - THE ACTUAL BENEFIT FOR WHICH THE TAX IS
PAID." 

IT IS IN THE REALM OF INTRA-FAMILY ASSIGNMENTS AND TRANSFERS THAT THE
CLIFFORD-HORST LINE OF CASES HAS PECULIAR APPLICABILITY.  WHILE
SPECIFICALLY RELATING TO SHORT-TERM FAMILY TRUSTS, THE CLIFFORD CASE
MAKES CLEAR THAT WHERE THE PARTIES TO A TRANSFER ARE MEMBERS OF THE
SAME FAMILY GROUP, SPECIAL SCRUTINY IS NECESSARY "LEST WHAT IS IN
REALITY BUT ONE ECONOMIC UNIT BE MULTIPLIED INTO TWO OR MORE BY DEVICES
WHICH, THOUGH VALID UNDER STATE LAW, ARE NOT CONCLUSIVE SO FAR AS SEC.
22(A) IS CONCERNED."  309 U.S. AT 335.  THAT DECISION POINTS OUT
VARIOUS KINDS OF DOCUMENTED AND DIRECT BENEFITS WHICH, IF RETAINED BY
THE TRANSFEROR OF PROPERTY, MAY CAUSE HIM TO REMAIN TAXABLE ON THE
INCOME THEREFROM.  AND IT ALSO RECOGNIZES THAT THE FACT THAT THE
PARTIES ARE INTIMATELY RELATED, CAUSING THE INCOME TO REMAIN WITHIN THE
FAMILY GROUP, MAY MAKE THE TRANSFER GIVE RISE TO INFORMAL AND INDIRECT
BENEFITS TO THE TRANSFEROR SO AS TO MAKE IT EVEN MORE CLEAR THAT IT IS
JUST TO TAX HIM.  EVEN MORE DIRECTLY PERTINENT, HOWEVER, IS THE HORST
CASE, TOGETHER WITH THE ACCOMPANYING EUBANK CASE.  SEE 2 MERTENS, LAW
OF FEDERAL INCOME TAXATION (1942), SECS. 18.02, 18.14.  IT WAS THERE
HELD THAT THE CONTROL OF THE RECEIPT OF INCOME, WHICH CAUSES AN
ASSIGNOR OF PROPERTY TO REMAIN TAXABLE, IS NOT LIMITED TO SITUATIONS
WHERE THE ASSIGNEE'S REALIZATION OF INCOME DEPENDS UPON THE FUTURE
RENDITION OF SERVICES BY THE ASSIGNOR.  SEE LUCAS V. EARL, SUPRA;
BURNET V. LEININGER, SUPRA.  SUCH MAY ALSO BE THE CASE WHERE THE
ASSIGNOR CONTROLS THE RECEIPT OF INCOME THROUGH ACTS OR SERVICES
PRECEDING THE TRANSFER.  OR IT MAY BE EVIDENCED BY THE POSSIBILITY OF
SOME SUBSEQUENT ACT BY THE ASSIGNOR, OR SOME FAILURE TO ACT, CAUSING
THE INCOME OR PROPERTY TO REVERT TO HIM.  MOREOVER, THE HORST CASE
RECOGNIZES THAT THE ASSIGNOR MAY REALIZE INCOME IF HE CONTROLS THE
DISPOSITION OF THAT WHICH HE COULD HAVE RECEIVED HIMSELF AND DIVERTS
PAYMENT FROM HIMSELF TO THE ASSIGNEE AS A MEANS OF PROCURING THE
SATISFACTION OF HIS WANTS, THE RECEIPT OF INCOME BY THE ASSIGNEE MERELY
BEING THE FRUITION OF THE ASSIGNOR'S ECONOMIC GAIN. 

IN HARRISON V. SCHAFFNER, SUPRA, 582, IT WAS AGAIN EMPHASIZED THAT
"ONE VESTED WITH THE RIGHT TO RECEIVE INCOME DID NOT ESCAPE THE TAX BY
ANY KIND OF ANTICIPATORY ARRANGEMENT, HOWEVER SKILLFULLY DEVISED, BY
WHICH HE PROCURES PAYMENT OF IT TO ANOTHER, SINCE, BY THE EXERCISE OF
HIS POWER TO COMMAND THE INCOME, HE ENJOYS THE BENEFIT OF THE INCOME ON
WHICH THE TAX IS LAID."  AND IT WAS ALSO NOTED THAT "EVEN THOUGH THE
GIFT OF INCOME BE IN FORM ACCOMPLISHED BY THE TEMPORARY DISPOSITION OF
THE DONOR'S PROPERTY WHICH PRODUCES THE INCOME, THE DONOR RETAINING
EVERY OTHER SUBSTANTIAL INTEREST IN IT, WE HAVE NOT ALLOWED THE FORM TO
OBSCURE THE REALITY."  312 U.S. AT 583.  COMMISSIONER V. TOWER, SUPRA,
AND ITS COMPANION CASE, LUSTHAUS V. COMMISSIONER, SUPRA, REITERATED THE
VARIOUS PRINCIPLES LAID DOWN IN THE EARLIER DECISIONS AND APPLIED THEM
TO INCOME ARISING FROM FAMILY PARTNERSHIPS. 

THE PRINCIPLES WHICH HAVE THUS BEEN RECOGNIZED AND DEVELOPED BY THE
CLIFFORD AND HORST CASES, AND THOSE FOLLOWING THEM, ARE DIRECTLY
APPLICABLE TO THE TRANSFER OF PATENT LICENSE CONTRACTS BETWEEN MEMBERS
OF THE SAME FAMILY.  THEY ARE GUIDEPOSTS FOR THOSE WHO SEEK TO
DETERMINE IN A PARTICULAR INSTANCE WHETHER SUCH AN ASSIGNOR RETAINS
SUFFICIENT CONTROL OVER THE ASSIGNED CONTRACTS OR OVER THE RECEIPT OF
INCOME BY THE ASSIGNEE TO MAKE IT FAIR TO IMPOSE INCOME TAX LIABILITY
ON HIM. 

MOREOVER, THE CLARIFICATION AND GROWTH OF THESE PRINCIPLES THROUGH
THE CLIFFORD-HORST LINE OF CASES CONSTITUTE, IN OUR OPINION, A
SUFFICIENT CHANGE IN THE LEGAL CLIMATE TO RENDER INAPPLICABLE, IN THE
INSTANT PROCEEDING, THE DOCTRINE OF COLLATERAL ESTOPPEL RELATIVE TO THE
ASSIGNMENT OF THE 1928 CONTRACT.  TRUE, THESE CASES DID NOT ORIGINATE
THE CONCEPT THAT AN ASSIGNOR IS TAXABLE IF HE RETAINS CONTROL OVER THE
ASSIGNED PROPERTY OR POWER TO DEFEAT THE RECEIPT OF INCOME BY THE
ASSIGNEE.  BUT THEY GAVE MUCH ADDED EMPHASIS AND SUBSTANCE TO THAT
CONCEPT, MAKING IT MORE SUITED TO MEET THE "ATTENUATED SUBTLETIES"
CREATED BY TAXPAYERS.  SO SUBSTANTIAL WAS THE AMPLIFICATION OF THIS
CONCEPT AS TO JUSTIFY A RECONSIDERATION OF EARLIER TAX COURT DECISIONS
REACHED WITHOUT THE BENEFIT OF THE EXPANDED NOTIONS, DECISIONS WHICH
ARE NOW SOUGHT TO BE PERPETUATED REGARDLESS OF THEIR PRESENT
CORRECTNESS.  THUS IN THE EARLIER LITIGATION IN 1935, THE BOARD OF TAX
APPEALS WAS UNABLE TO BRING TO BEAR ON THE ASSIGNMENT OF THE 1928
CONTRACT THE FULL BREADTH OF THE IDEAS ENUNCIATED IN THE CLIFFORD-HORST
SERIES OF CASES.  AND, AS WE SHALL SEE, A PROPER APPLICATION OF THE
PRINCIPLES AS THERE DEVELOPED MIGHT WELL HAVE PRODUCED A DIFFERENT
RESULT, SUCH AS WAS REACHED BY THE TAX COURT IN THIS CASE IN REGARD TO
THE ASSIGNMENTS OF THE OTHER CONTRACTS.  UNDER THOSE CIRCUMSTANCES
COLLATERAL ESTOPPEL SHOULD NOT HAVE BEEN USED BY THE TAX COURT IN THE
INSTANT PROCEEDING TO PERPETUATE THE 1935 VIEWPOINT OF THE ASSIGNMENT. 

THE INITIAL DETERMINATION OF WHETHER THE ASSIGNMENT OF THE VARIOUS
CONTRACTS RENDERED THE TAXPAYER IMMUNE FROM INCOME TAX LIABILITY WAS
ONE TO BE MADE BY THE TAX COURT.  THAT IS THE AGENCY DESIGNATED BY LAW
TO FIND AND EXAMINE THE FACTS AND TO DRAW CONCLUSIONS AS TO WHETHER A
PARTICULAR ASSIGNMENT LEFT THE ASSIGNOR WITH SUBSTANTIAL CONTROL OVER
THE ASSIGNED PROPERTY OR THE INCOME WHICH ACCRUES TO THE ASSIGNEE.  AND
IT IS WELL ESTABLISHED THAT ITS DECISION IS TO BE RESPECTED ON APPEAL
IF FIRMLY GROUNDED IN THE EVIDENCE AND IF CONSISTENT WITH THE LAW. 
COMMISSIONER V. SCOTTISH AMERICAN CO., 323 U.S. 119; DOBSON V.
COMMISSIONER, 320 U.S. 489.  THAT IS THE STANDARD, THEREFORE, FOR
MEASURING THE PROPRIETY OF THE TAX COURT'S DECISION ON THE MERITS OF
THE CONTROVERSY IN THIS CASE. 

THE FACTS RELATIVE TO THE ASSIGNMENTS OF THE CONTRACTS ARE
UNDISPUTED.  AS TO THE LEGAL FOUNDATION OF THE TAX COURT'S JUDGMENT ON
THE TAX CONSEQUENCES OF THE ASSIGNMENTS, WE ARE UNABLE TO SAY THAT ITS
INFERENCES AND CONCLUSIONS FROM THOSE FACTS ARE UNREASONABLE IN THE
LIGHT OF THE PERTINENT STATUTORY OR ADMINISTRATIVE PROVISIONS OR THAT
THEY ARE INCONSISTENT WITH ANY OF THE PRINCIPLES ENUNCIATED IN THE
CLIFFORD-HORST LINE OF CASES.  INDEED, DUE REGARD FOR THOSE PRINCIPLES
LEADS ONE INESCAPABLY TO THE TAX COURT'S RESULT.  THE TAXPAYER'S
PURPORTED ASSIGNMENT TO HIS WIFE OF THE VARIOUS LICENSE CONTRACTS MAY
PROPERLY BE SAID TO HAVE LEFT HIM WITH SOMETHING MORE THAN A MEMORY. 
HE RETAINED VERY SUBSTANTIAL INTERESTS IN THE CONTRACTS THEMSELVES, AS
WELL AS POWER TO CONTROL THE PAYMENT OF ROYALTIES TO HIS WIFE, THEREBY
SATISFYING THE VARIOUS CRITERIA OF TAXABILITY SET FORTH IN THE CLIFFORD
HORST GROUP OF CASES.  THAT FACT IS DEMONSTRATED BY THE FOLLOWING
CONSIDERATIONS: 

(1)  AS PRESIDENT, DIRECTOR AND OWNER OF 89% OF THE STOCK OF THE
CORPORATION, THE TAXPAYER REMAINED IN A POSITION TO EXERCISE EXTENSIVE
CONTROL OVER THE LICENSE CONTRACTS AFTER ASSIGNING THEM TO HIS WIFE. 
THE CONTRACTS ALL PROVIDED THAT EITHER PARTY MIGHT CANCEL WITHOUT
LIABILITY UPON GIVING THE REQUIRED NOTICE.  THIS GAVE THE TAXPAYER, IN
HIS DOMINANT POSITION IN THE CORPORATION, POWER TO PROCURE THE
CANCELLATION OF THE CONTRACTS IN THEIR ENTIRETY.  THAT POWER WAS
NONETHELESS SUBSTANTIAL BECAUSE THE TAXPAYER HAD BUT ONE OF THE THREE
DIRECTORS' VOTES NECESSARY TO SANCTION SUCH ACTION BY THE CORPORATION. 
SHOULD A MAJORITY OF THE DIRECTORS PROVE UNAMENABLE TO HIS DESIRES, THE
FRUSTRATION WOULD LAST NO LONGER THAN THE DATE OF THE NEXT ANNUAL
ELECTION OF DIRECTORS BY THE STOCKHOLDERS, AN ELECTION WHICH THE
TAXPAYER COULD CONTROL BY REASON OF HIS EXTENSIVE STOCK HOLDINGS.  THE
WIFE, AS ASSIGNEE AND AS A PARTY TO CONTRACTS EXPRESSLY TERMINABLE BY
THE CORPORATION WITHOUT LIABILITY, COULD NOT PREVENT CANCELLATION
PROVIDED THAT THE NECESSARY NOTICE WAS GIVEN. 

AND IT IS NOT NECESSARY TO ASSUME THAT SUCH CANCELLATION WOULD AMOUNT
TO A FRAUD ON THE CORPORATION, A FRAUD WHICH COULD BE ENJOINED OR
OTHERWISE PREVENTED.  CANCELLATION CONCEIVABLY COULD OCCUR BECAUSE THE
TAXPAYER AND HIS CORPORATION WERE READY TO MAKE NEW LICENSE CONTRACTS
ON TERMS MORE FAVORABLE TO THE CORPORATION, IN WHICH CASE NO FRAUD
WOULD NECESSARILY BE PRESENT.  ALL THAT WE ARE CONCERNED WITH HERE IS
THE POWER TO PROCURE CANCELLATION, NOT WITH THE POSSIBILITY THAT SUCH
POWER MIGHT BE ABUSED.  AND ONCE IT IS EVIDENT THAT SUCH POWER EXISTS. 
THE CONCLUSION IS UNAVOIDABLE THAT THE TAXPAYER RETAINED A SUBSTANTIAL
INTEREST IN THE LICENSE CONTRACTS WHICH HE ASSIGNED.    (2)  THE
TAXPAYER'S CONTROLLING POSITION IN THE CORPORATION ALSO PERMITTED HIM
TO REGULATE THE AMOUNT OF ROYALTIES PAYABLE TO HIS WIFE.  THE CONTRACTS
SPECIFIED NO MINIMUM ROYALTIES AND DID NOT BIND THE CORPORATION TO
MANUFACTURE AND SELL ANY PARTICULAR NUMBER OF DEVICES.  HENCE, BY
CONTROLLING THE PRODUCTION AND SALES POLICIES OF THE CORPORATION, THE
TAXPAYER WAS ABLE TO INCREASE OR LOWER THE ROYALTIES; OR HE COULD STOP
THOSE ROYALTIES COMPLETELY BY ELIMINATING THE MANUFACTURE OF THE
DEVICES COVERED BY THE ROYALTIES WITHOUT CANCELLING THE CONTRACTS. 

(3)  THE TAXPAYER REMAINED THE OWNER OF THE PATENTS AND THE PATENT
APPLICATIONS.  SINCE THE LICENSES WHICH HE GAVE THE CORPORATION WERE
NON-EXCLUSIVE IN NATURE, THERE WAS NOTHING TO PREVENT HIM FROM
LICENSING OTHER FIRMS TO EXPLOIT HIS PATENTS, THEREBY DIVERTING SOME OR
ALL OF THE ROYALTIES FROM HIS WIFE. 

(4)  THERE IS ABSENT ANY INDICATION THAT THE TRANSFER OF THE
CONTRACTS EFFECTED ANY SUBSTANTIAL CHANGE IN THE TAXPAYER'S ECONOMIC
STATUS.  DESPITE THE ASSIGNMENTS, THE LICENSE CONTRACTS AND THE ROYALTY
PAYMENTS ACCRUING THEREUNDER REMAINED WITHIN THE TAXPAYER'S INTIMATE
FAMILY GROUP.  HE WAS ABLE TO ENJOY, AT LEAST INDIRECTLY, THE BENEFITS
RECEIVED BY HIS WIFE.  AND WHEN THAT FACT IS ADDED TO THE LEGAL
CONTROLS WHICH HE RETAINED OVER THE CONTRACTS AND THE ROYALTIES, IT CAN
FAIRLY BE SAID THAT THE TAXPAYER RETAINED THE SUBSTANCE OF ALL THE
RIGHTS WHICH HE HAD PRIOR TO THE ASSIGNMENTS.  SEE HELVERING V.
CLIFFORD, SUPRA, 335-336. 

THESE FACTORS MAKE REASONABLE THE TAX COURT'S CONCLUSION THAT THE
ASSIGNMENTS OF THE LICENSE CONTRACTS MERELY INVOLVED A TRANSFER OF THE
RIGHT TO RECEIVE INCOME RATHER THAN A COMPLETE DISPOSITION OF ALL THE
TAXPAYER'S INTEREST IN THE CONTRACTS AND THE ROYALTIES.  THE EXISTENCE
OF THE TAXPAYER'S POWER TO TERMINATE THOSE CONTRACTS AND TO REGULATE
THE AMOUNT OF THE ROYALTIES RENDERED INEFFECTIVE FOR TAX PURPOSES HIS
ATTEMPT TO DISPOSE OF THE CONTRACTS AND ROYALTIES.  THE TRANSACTIONS
WERE SIMPLY A REALLOCATION OF INCOME WITHIN THE FAMILY GROUP, A
REALLOCATION WHICH DID NOT SHIFT THE INCIDENCE OF INCOME TAX
LIABILITY. 

THE JUDGMENT BELOW MUST THEREFORE BE REVERSED AND THE CASE REMANDED
FOR SUCH FURTHER PROCEEDINGS AS MAY BE NECESSARY IN LIGHT OF THIS
OPINION.  REVERSED. 

FN1  THE VARIOUS DEVICES INVOLVED WERE AS FOLLOWS: 

(1)  A CYLINDER GRINDER.  THE TAXPAYER APPLIED FOR A PATENT ON NOV.
17, 1927, AND WAS ISSUED ONE ON DEC. 4, 1934.  THE ROYALTY AGREEMENT TO
MANUFACTURE AND SELL THIS DEVICE WAS DATED JAN. 10, 1928.  THIS
AGREEMENT EXPIRED ON JAN. 10, 1938; A RENEWAL AGREEMENT IN
SUBSTANTIALLY THE SAME TERMS WAS THEN EXECUTED FOR THE BALANCE OF THE
LIFE OF THE PATENT, WHICH ENDS ON DEC. 4, 1951. 

(2)  A PINHOLE GRINDER.  THE TAXPAYER APPLIED FOR A PATENT ON DEC. 4,
1931, AND WAS ISSUED ONE ON JUNE 13, 1933.  THE ROYALTY AGREEMENT TO
MANUFACTURE AND SELL THIS DEVICE WAS DATED DEC. 5, 1931. 

(3)  A CRANKSHAFT GRINDER.  THE TAXPAYER APPLIED FOR A PATENT ON MAY
22, 1939, AND WAS ISSUED ONE ON MAY 6, 1941.  THE ROYALTY AGREEMENT TO
MANUFACTURE AND SELL THIS DEVICE WAS DATED JUNE 20, 1939. 

(4)  ANOTHER CRANKSHAFT GRINDER.  THE TAXPAYER APPLIED FOR A PATENT
ON DEC. 29, 1939.  HE ASSIGNED THIS APPLICATION TO HIS WIFE ON DEC. 29,
1942, AND SHE WAS ISSUED A PATENT ON JAN. 26, 1943.  THE ROYALTY
AGREEMENT TO MANUFACTURE AND SELL THIS DEVICE WAS DATED JUNE 20, 1939. 

THE TAXPAYER REMAINED THE OWNER OF THE FIRST THREE PATENTS THROUGHOUT
THE YEAR 1941, AND HE REMAINED THE OWNER OF THE PATENT APPLICATION ON
THE FOURTH DEVICE THROUGHOUT THAT YEAR. 

FN2  SIX MONTHS' NOTICE WAS PROVIDED IN THE AGREEMENT DATED JAN. 10,
1928, COVERING THE CYLINDER GRINDER.  THE OTHER THREE AGREEMENTS
PROVIDED FOR ONE YEAR'S NOTICE OF CANCELLATION. 

FN3  ON JAN. 8, 1929, THE TAXPAYER ASSIGNED TO HIS WIFE "ALL MY
RIGHTS TITLE AND INTEREST IN AND TO THE ROYALTY WHICH SHALL ACCRUE
HEREAFTER TO ME" UPON THE ROYALTY CONTRACT OF JAN. 10, 1928, WITH
RESPECT TO THE CYLINDER GRINDER DEVICE.  SINCE THE COMMISSIONER OF
INTERNAL REVENUE RAISED SOME QUESTION AS TO THE SUFFICIENCY AND
COMPLETENESS OF THIS ASSIGNMENT, THE TAXPAYER EXECUTED A FURTHER
ASSIGNMENT ON DEC. 21, 1931.  THIS SECOND ASSIGNMENT CONFIRMED THE
FIRST ONE AND STATED FURTHER THAT HIS WIFE WAS ASSIGNED "ALL OF MY
RIGHT, TITLE AND INTEREST IN AND TO SAID ROYALTY CONTRACT OF JANUARY
10, 1928  ....  AND I HEREBY STATE THAT THE ROYALTIES ACCRUING UNDER
SAID ROYALTY CONTRACT HAVE HERETOFORE BEEN AND ARE HEREAFTER THE SOLE
AND EXCLUSIVE PROPERTY OF THE SAID CORNELIA SUNNEN (HIS WIFE), AND
HEREBY DECLARE THAT SAID ROYALTIES SHALL BE PAID TO THE SAID CORNELIA
SUNNEN OR TO HER ORDER, AND THAT SHE SHALL HAVE THE SOLE RIGHT TO
COLLECT, RECEIVE, RECEIPT FOR, RETAIN OR SUE FOR SAID ROYALTIES." 

ASSIGNMENTS SIMILAR IN FORM AND SUBSTANCE TO THE ASSIGNMENT OF DEC.
21, 1931, WERE MADE AS TO THE OTHER THREE ROYALTY CONTRACTS. 

FN4  IN THE DODSON CASE, DODSON OWNED 51% OF THE STOCK OF A
CORPORATION AND HIS WIFE OWNED THE OTHER 49%.  HE WAS THE OWNER OF A
FORMULA AND TRADE MARK.  PURSUANT TO A CONTRACT WHICH HE MADE WITH THE
CORPORATION, THE CORPORATION WAS GIVEN THE EXCLUSIVE USE OF THE FORMULA
AND TRADE MARK FOR 5 YEARS, RENEWABLE FOR A LIKE PERIOD.  DODSON WAS TO
RECEIVE IN RETURN A ROYALTY MEASURED BY A CERTAIN PERCENTAGE OF THE NET
SALES.  HE THEN ASSIGNED A ONE-HALF INTEREST IN THE CONTRACT TO HIS
WIFE, RETAINING HIS FULL INTEREST IN THE FORMULA AND TRADE MARK.  THE
TAX COURT HELD THAT HIS DOMINANT STOCK POSITION PERMITTED HIM TO CANCEL
OR MODIFY THE CONTRACT AT ANY TIME, THUS RENDERING HIM TAXABLE ON THE
INCOME FLOWING FROM HIS WIFE'S SHARE IN THE CONTRACT. 

FN5  SEE ALSO HENRICKSEN V. SEWARD, 135 F.2D 986; MONTEITH BROS. CO.
V. UNITED STATES, 142 F.2D 139; PELHAM HALL CO. V. HASSETT, 147 F.2D
63; COMMISSIONER V. ARUNDEL-BROOKS CONCRETE CORP., 152 F.2D 225;
CORRIGAN V. COMMISSIONER, 155 F.2D 164.  COMPARE GRANDVIEW DAIRY V.
JONES, 157 F.2D 5. 

FN6  AND SEE COMMISSIONER V. SECURITY-FIRST NAT. BANK, 148 F.2D 937. 

FN7  STODDARD V. COMMISSIONER, 141 F.2D 76, 80; CAMPANA CORPORATION
V. HARRISON, 135 F.2D 334; ENGINEER'S CLUB OF PHILADELPHIA V. UNITED
STATES, 42 F.SUPP.  182. 

FN8  THE PERTINENT STATUTORY PROVISIONS ARE OF LITTLE HELP TO THE
MATTER IN ISSUE.  SECTION 22(A) OF THE REVENUE ACT OF 1936, 49 STAT.
1648, AND SEC. 22(A) OF THE REVENUE ACT OF 1938, 52 STAT. 447, COVER
THE TAXABLE YEARS IN QUESTION.  THOSE SECTIONS, WHICH ARE IDENTICAL
WITH THE CURRENT SEC. 22(A) OF THE INTERNAL REVENUE CODE, DEFINE "GROSS
INCOME" TO INCLUDE "GAINS, PROFITS, AND INCOME DERIVED FROM SALARIES,
WAGES, OR COMPENSATION FOR PERSONAL SERVICE, OF WHATEVER KIND AND IN
WHATEVER FORM PAID, OR FROM PROFESSIONS, VOCATIONS, TRADES, BUSINESSES,
COMMERCE, OR SALES, OR DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL,
GROWING OUT OF THE OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY;
ALSO FROM INTEREST, RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF
ANY BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND
INCOME DERIVED FROM ANY SOURCE WHATEVER."  SEE ALSO ART. 22(A)-1 OF
TREASURY REGULATIONS 94, PROMULGATED UNDER THE 1936 ACT; ART. 22(A)-1
OF TREASURY REGULATIONS 101, PROMULGATED UNDER THE 1938 ACT; AND SEC.
19.22(A)-1 OF TREASURY REGULATIONS 103, PROMULGATED UNDER THE INTERNAL
REVENUE CODE. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON BELIEVE THE JUDGMENT
OF THE TAX COURT IS BASED ON SUBSTANTIAL EVIDENCE AND IS CONSISTENT
WITH THE LAW, AND WOULD AFFIRM THAT JUDGMENT FOR REASONS STATED IN
DOBSON V. COMMISSIONER, 320 U.S. 489, AND COMMISSIONER V. SCOTTISH
AMERICAN CO., 323 U.S. 119. 
..END :
















COMMISSIONER V. SOUTH TEXAS CO., 333 U.S. 496 


NO. 384.  ARGUED JANUARY 14, 1948.  - DECIDED MARCH 29, 1948.  - 162
F.2D 866, REVERSED. 


1.  A CORPORATE TAXPAYER WHICH FILED ITS FEDERAL INCOME AND EXCESS
PROFITS TAX RETURN ON THE ACCRUAL BASIS, BUT ELECTED TO REPORT INCOME
FROM CERTAIN INSTALLMENT SALES ON THE INSTALLMENT BASIS AS AUTHORIZED
BY SEC. 44 OF THE INTERNAL REVENUE CODE, MAY NOT, IN COMPUTING ITS
EXCESS PROFITS TAX CREDIT UNDER SEC. 714, INCLUDE IN "INVESTED CAPITAL"
(AS "ACCUMULATED EARNINGS AND PROFITS") THE UNREALIZED AND UNREPORTED
PROFITS FROM SUCH INSTALLMENT SALES.  PP. 497-506. 

2.  THE PROVISION OF SEC. 29.115-3 OF TREASURY REGULATIONS 111,
APPLICABLE TO EXCESS PROFITS TAX AS WELL AS TO INCOME TAX, THAT "A
CORPORATION COMPUTING INCOME ON THE INSTALLMENT BASIS AS PROVIDED IN
SEC. 44 SHALL, WITH RESPECT TO THE INSTALLMENT TRANSACTION, COMPUTE
EARNINGS AND PROFITS ON SUCH BASIS," IS VALID.  PP. 500-503. 

3.  TREASURY REGULATIONS CONSTITUTE CONTEMPORANEOUS CONSTRUCTIONS OF
THE REVENUE STATUTES BY THOSE CHARGED WITH THE ADMINISTRATION OF THESE
STATUTES, AND SHOULD NOT BE INVALIDATED EXCEPT FOR WEIGHTY REASONS.  P.
501. 

4.  THE PROVISION OF SEC. 29.115-3 OF TREASURY REGULATIONS 111 HERE
IN QUESTION IS NOT IN CONFLICT WITH SECS. 115(L), 111, 112, AND 113 OF
THE INTERNAL REVENUE CODE.  PP. 504-506. 

COMMISSIONER OF INTERNAL REVENUE V. SOUTH TEXAS LUMBER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

THE COMMISSIONER'S REDETERMINATION OF RESPONDENT'S INCOME AND EXCESS
PROFITS TAX WAS SUSTAINED BY THE TAX COURT.  7 T.C. 669.  THE CIRCUIT
COURT OF APPEALS REVERSED.  162 F.2D 866.  THIS COURT GRANTED
CERTIORARI.  332 U.S. 829.  REVERSED, P. 506. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES A QUESTION AS TO RESPONDENT'S LIABILITY FOR THE
TAXABLE YEAR 1943 UNDER THE EXCESS PROFITS TAX ACT OF 1940 AS AMENDED. 
54 STAT. 975, 26 U.S.C. SEC. 710, ET SEQ. THE LAW WAS PASSED TO TAX
ABNORMALLY HIGH PROFITS DUE TO LARGE GOVERNMENTAL EXPENDITURES ABOUT TO
BE MADE FROM APPROPRIATIONS FOR NATIONAL DEFENSE.  FN1  THE EXCESS
PROFITS TAX WAS A GRADUATED SURTAX UPON A PORTION OF CORPORATE INCOME,
AND WAS IMPOSED IN ADDITION TO THE REGULAR INCOME TAX.  IT APPLIED TO
ALL CORPORATE PROFITS AND GAINS OVER AND ABOVE WHAT CONGRESS DEEMED TO
BE A FAIR AND NORMAL RETURN FOR THE CORPORATE BUSINESS TAXED. 

UNDER THE CONTROLLING 1943 LAW THE AMOUNT OF INCOME SUBJECT TO THIS
EXCESS PROFITS TAX IS COMPUTED BY SUBTRACTING FROM THE NET INCOME
SUBJECT TO REGULAR INCOME TAX THE AMOUNT OF EARNINGS CONGRESS DEEMED TO
BE A TAXPAYER'S NORMAL AND FAIR RETURN.  FN2  THIS DEDUCTIBLE AMOUNT,
CALLED THE EXCESS PROFITS CREDIT, WAS TO BE COMPUTED IN ONE OF TWO
WAYS, WHICHEVER RESULTED IN THE LESSER TAX.  SEC. 712.  THE FIRST, NOT
USED HERE, PERMITS A DEDUCTION OF AN AMOUNT EQUAL TO THE COMPANY'S
AVERAGE NET INCOME FOR THE TAXABLE YEARS 1936 TO 1939 INCLUSIVE.  SEC.
713.  THE SECOND, USED HERE, PERMITS A DEDUCTION OF AN AMOUNT EQUAL TO
8 PER CENTUM OF THE TAXPAYER'S INVESTED CAPITAL FOR THE TAXABLE YEAR. 
FN3  SEC. 714.  AN INCLUDABLE ELEMENT OF THE "INVESTED CAPITAL" IS THE
"ACCUMULATED EARNINGS AND PROFITS AS OF THE BEGINNING OF SUCH TAXABLE
YEAR."  IT THUS APPEARS THAT BY THIS METHOD CONGRESS INTENDED, WITH
MINOR EXCEPTIONS NOT HERE RELEVANT, TO IMPOSE THE EXCESS PROFITS TAX ON
ALL ANNUAL NET INCOME IN EXCESS OF 8% OF A CORPORATION'S WORKING
CAPITAL, INCLUDING ITS ACCUMULATED PROFITS.  THE CONTROVERSY HERE IS
OVER THE TAXPAYER'S CLAIM THAT IN COMPUTING ITS 1943 TAX THE STATUTE
ALLOWS IT TO INCLUDE IN THIS 8% DEDUCTION ITS "ACCUMULATED PROFITS"
FROM CERTAIN INSTALLMENT SALES, WHICH PROFITS THE TAXPAYER, IN
ACCORDANCE WITH AN OPTION CONFERRED UPON HIM, HAD ELECTED NOT TO REPORT
AS A PART OF ITS TAXABLE INCOME IN PRIOR YEARS. 

BEGINNING IN 1937 AND EXTENDING OVER A FOUR-YEAR PERIOD, RESPONDENT
SOLD PARCELS OF REAL ESTATE, GAVE DEEDS, AND TOOK INSTALLMENT NOTES,
WHICH WERE SECURED BY MORTGAGES AND VENDORS' LIENS.  IT KEPT ITS BOOKS
GENERALLY ON A CALENDAR YEAR ACCRUAL BASIS OF ACCOUNTING, A BASIS UNDER
WHICH ALL OBLIGATIONS OF A COMPANY APPLICABLE TO A YEAR ARE LISTED AS
EXPENDITURES, WHETHER PAID THAT YEAR OR NOT, AND ALL OBLIGATIONS TO IT
INCURRED BY OTHERS APPLICABLE TO THE YEAR ARE SET UP AS INCOME ON THE
SAME BASIS.  UNDER 26 U.S.C. SEC. 41 AN INCOME TAXPAYER MAY REPORT
INCOME AND EXPENDITURES EITHER ON AN ACCRUAL BASIS OR ON A CASH BASIS -
UNDER WHICH LATTER METHOD ANNUAL NET INCOME IS MEASURED BY THE
DIFFERENCE BETWEEN ACTUAL CASH RECEIVED AND PAID OUT WITHIN THE TAXABLE
YEAR.  IN ANY EVENT, THE BASIS USED MUST, IN THE LANGUAGE OF SEC. 41,
"CLEARLY REFLECT THE INCOME." 

RESPONDENT DID NOT REPORT THE VALUE OF ITS LAND INSTALLMENT NOTES AS
INCOME ON THE ACCRUAL BASIS AS IT COULD HAVE DONE UNDER SEC. 41. 
INSTEAD, FROM 1937 UP TO AND INCLUDING 1943, IT HAS CONSISTENTLY
REPORTED ITS ANNUAL INCOME FROM THE INSTALLMENT SALES ON A THIRD OR
"INSTALLMENT" BASIS, EXPRESSLY AUTHORIZED FOR CERTAIN TYPES OF
INSTALLMENT SALES BY 26 U.S.C. SEC. 44.  THAT SECTION PERMITS A
TAXPAYER TO RETURN AS TAXABLE INCOME FOR A GIVEN YEAR ONLY "THAT
PROPORTION OF THE INSTALLMENT PAYMENTS ACTUALLY RECEIVED IN THAT YEAR
WHICH THE GROSS PROFIT REALIZED OR TO BE REALIZED WHEN PAYMENT IS
COMPLETED, BEARS TO THE TOTAL CONTRACT PRICE."  THUS RESPONDENT'S
INSTALLMENT INCOME HAS ACTUALLY BEEN REPORTED FOR TAXES ALL ALONG
SUBSTANTIALLY ON A MODIFIED CASH RECEIPTS BASIS, AND THE TAXPAYER'S NET
INCOME, WHICH IS SUBJECTED BOTH TO THE NORMAL INCOME TAX AND TO THE
EXCESS PROFITS TAX, HAS NOT IN ANY OF THESE YEARS REFLECTED THE UNPAID
BALANCES ON THE INSTALLMENT NOTES, OR ANY PART OF THEM.  ON THE
CONTRARY, THESE BALANCES WERE LISTED ON RESPONDENT'S TAX RETURNS DURING
THESE YEARS AS "UNREALIZED PROFIT INSTALLMENT SALES." 

ON ITS 1943 EXCESS PROFITS TAX RETURN RESPONDENT NEVERTHELESS
REPORTED AS "ACCUMULATED EARNINGS AND PROFITS" THE AMOUNT OF
"UNREALIZED PROFIT INSTALLMENT SALES" SHOWN ON ITS BOOKS AT THE END OF
1942,  FN4  AND INCLUDED THIS AMOUNT IN "INVESTED CAPITAL."  IT THUS
SOUGHT TO DEDUCT 8% OF ITS THERETOFORE DESIGNATED "UNREALIZED PROFIT"
IN COMPUTING ITS EXCESS PROFITS TAX.  THE COMMISSIONER REDETERMINED THE
TAX FOR 1943 AFTER ELIMINATING THIS ITEM FROM "INVESTED CAPITAL."  THE
TAX COURT SUSTAINED THE COMMISSIONER'S REDETERMINATION, 7 T.C. 669,
RELYING ON ITS OPINION IN KIMBRELL'S HOME FURNISHINGS, INC. V.
COMMISSIONER, 7 T.C. 339.  FN5  THE CIRCUIT COURT OF APPEALS, WITH ONE
JUSTICE DISSENTING, REVERSED ON THE AUTHORITY OF ITS DECISION IN
COMMISSIONER V. SHENANDOAH CO., 138 F.2D 792.  THE GOVERNMENT'S
PETITION FOR CERTIORARI ALLEGED THAT THE RESULT REACHED BY THE CIRCUIT
COURT OF APPEALS WAS COUNTER TO THE COMMISSIONER'S REGULATIONS AND TO
LONG-STANDING TAX PRACTICES RECOGNIZED BY STATUTES AND JUDICIAL
OPINIONS, UNDER WHICH PRACTICES A TAXPAYER NORMALLY CANNOT REPORT
TAXABLE INCOME ON ONE ACCOUNTING BASIS AND ADJUSTMENTS OF THAT INCOME
ON ANOTHER.  THE QUESTIONS THEREBY RAISED ARE OF IMPORTANCE IN TAX
ADMINISTRATION AND WE GRANTED CERTIORARI TO CONSIDER THEM. 

A TREASURY REGULATION, SET OUT IN PART BELOW,  FN6  APPLICABLE TO
BOTH THE NORMAL INCOME TAX AND THE EXCESS PROFITS TAX,  FN7
SPECIFICALLY PROVIDES THAT "A CORPORATION COMPUTING INCOME ON THE
INSTALLMENT BASIS AS PROVIDED IN SECTION 44 SHALL, WITH RESPECT TO THE
INSTALLMENT TRANSACTIONS, COMPUTE EARNINGS AND PROFITS ON SUCH BASIS." 
FN8  SINCE RESPONDENT COMPUTED ITS TAXABLE INCOME FROM INSTALLMENT
SALES ON THE INSTALLMENT OR MODIFIED CASH RECEIPTS BASIS, BUT COMPUTED
ITS EARNINGS AND PROFITS FROM THESE SAME SALES ON ANOTHER BASIS, THE
ACCRUAL, IT CONTENDS THAT THE REGULATION IS INVALID BECAUSE
INCONSISTENT WITH THE GOVERNING CODE PROVISIONS.  VALIDITY OF THE
REGULATION IS THEREFORE THE CRUCIAL QUESTION. 

THIS COURT HAS MANY TIMES DECLARED THAT TREASURY REGULATIONS MUST BE
SUSTAINED UNLESS UNREASONABLE AND PLAINLY INCONSISTENT WITH THE REVENUE
STATUTES AND THAT THEY CONSTITUTE CONTEMPORANEOUS CONSTRUCTIONS BY
THOSE CHARGED WITH ADMINISTRATION OF THESE STATUTES WHICH SHOULD NOT BE
OVERRULED EXCEPT FOR WEIGHTY REASONS.  SEE, E.G., FAWCUS MACHINE CO. V.
UNITED STATES, 282 U.S. 375, 378. 

THIS REGULATION IS IN HARMONY WITH THE LONG-ESTABLISHED CONGRESSIONAL
POLICY THAT A TAXPAYER GENERALLY CANNOT COMPUTE INCOME TAXES BY
REPORTING ANNUAL INCOME ON A CASH BASIS AND DEDUCTIONS ON AN ACCRUAL
BASIS.  SUCH A PRACTICE HAS BEEN UNIFORMLY HELD INADMISSIBLE BECAUSE IT
RESULTS IN A DISTORTED PICTURE WHICH MAKES A TAX RETURN FAIL TRULY TO
REFLECT NET INCOME.  THIS HAS BEEN THE CONSTRUCTION GIVEN INCOME,
ESTATE, AND PREVIOUS EXCESS PROFITS TAX LAWS BY ADMINISTRATIVE
OFFICIALS, THE BOARD OF TAX APPEALS, AND THE COURTS.  FN9 

THE REGULATION'S REASONABLENESS AND CONSISTENCY WITH THE STATUTES
WHICH IMPOSE THE EXCESS PROFITS TAX ON INCOMES IS ALSO SUPPORTED BY
PRIOR LEGISLATIVE AND ADMINISTRATIVE HISTORY.  THE PRESENT "INVESTED
CAPITAL" DEDUCTION IS PATTERNED AFTER A SIMILAR PROVISION IN SEC.
326(A) OF THE REVENUE ACT OF 1918, 40 STAT. 1057, 1088, 1092.  THAT
CAPITAL THERE INCLUDED "PAID-IN OR EARNED SURPLUS AND UNDIVIDED
PROFITS."  UNDER THAT LAW THE ADMINISTRATION, THE BOARD OF TAX APPEALS,
AND THE COURTS HAVE UNIFORMLY HELD THAT A TAXPAYER, HAVING ELECTED TO
ADOPT THE INSTALLMENT BASIS OF ACCOUNTING, COULD NOT THEREAFTER DISTORT
HIS TRUE EXCESS PROFITS TAX INCOME BY INCLUDING UNCOLLECTED INSTALLMENT
OBLIGATIONS IN HIS "INVESTED CAPITAL" DEDUCTION BASE.  FN10  A
TAXPAYER, HAVING CHOSEN TO REPORT HIS TAXABLE INCOME FROM INSTALLMENT
SALES ON THE INSTALLMENT CASH RECEIPTS PLAN, THEREBY SPREADING ITS
GROSS EARNINGS AND PROFITS FROM SUCH SALES OVER A NUMBER OF YEARS AND
AVOIDING HIGH TAX RATES, WAS NOT PERMITTED TO OBTAIN A FURTHER
REDUCTION BY SHIFTING TO AN ACCRUAL PLAN AND TREATING UNCOLLECTED
BALANCES ON THESE INSTALLMENT SALES AS THOUGH THEY HAD ACTUALLY BEEN
RECEIVED IN THE YEAR OF THE SALE. 

THE HISTORY OF THE CONGRESSIONAL ADOPTION OF THE OPTIONAL INSTALLMENT
BASIS ALSO SUPPORTS THE POWER OF THE COMMISSIONER TO ADOPT THE
REGULATION HERE INVOLVED.  PRIOR TO 1926 THE RIGHT OF A TAXPAYER TO
REPORT ON THE INSTALLMENT PLAN RESTED ONLY ON TREASURY REGULATIONS. 
FN11  IN 1925, THE BOARD OF TAX APPEALS HELD THESE REGULATIONS WERE
WITHOUT STATUTORY SUPPORT.  FN12  CONGRESS PROMPTLY, IN SEC. 212(D) OF
THE 1926 REVENUE ACT, ADOPTED THE PRESENT STATUTORY AUTHORITY FOR AN
ELECTIVE INSTALLMENT BASIS FOR REPORTING INCOME, THE SENATE COMMITTEE
REPORT ON THE MEASURE DESIGNATING IT AS A "THIRD BASIS, THE INSTALLMENT
BASIS."  FN13  THIS NEW STATUTORY PROVISION WAS STRIKINGLY SIMILAR TO
THE TREASURY REGULATIONS PREVIOUSLY HELD UNAUTHORIZED BY THE BOARD OF
TAX APPEALS.  THAT THE COMMISSIONER WAS PARTICULARLY INTENDED BY
CONGRESS TO HAVE BROAD RULE-MAKING POWER UNDER THE REGULATION WAS
MANIFESTED BY THE FIRST WORDS IN THE NEW INSTALLMENT BASIS SECTION
WHICH ONLY PERMITTED TAXPAYERS TO TAKE ADVANTAGE OF IT "UNDER
REGULATIONS PRESCRIBED BY THE COMMISSIONER WITH THE APPROVAL OF THE
SECRETARY  ...  "  THE CLAUSE IS STILL CONTAINED IN SEC. 44 OF THE
INTERNAL REVENUE CODE.  THIS GIVES ADDED REASONS WHY INTERPRETATIONS OF
THE ACT AND REGULATIONS UNDER IT SHOULD NOT BE OVERRULED BY THE COURTS
UNLESS CLEARLY CONTRARY TO THE WILL OF CONGRESS.  SEE BURNET V. S. & L.
BLDG. CORP., 288 U.S. 406, 415. 

THE INSTALLMENT BASIS OF REPORTING WAS ENACTED, AS SHOWN BY ITS
HISTORY, TO RELIEVE TAXPAYERS WHO ADOPTED IT FROM HAVING TO PAY AN
INCOME TAX IN THE YEAR OF SALE BASED ON THE FULL AMOUNT OF ANTICIPATED
PROFITS WHEN IN FACT THEY HAD RECEIVED IN CASH ONLY A SMALL PORTION OF
THE SALES PRICE.  ANOTHER REASON WAS THE DIFFICULT AND TIME-CONSUMING
EFFORT OF APPRAISING THE UNCERTAIN MARKET VALUE OF INSTALLMENT
OBLIGATIONS.  FN14  THERE IS NO INDICATION IN ANY OF THE CONGRESSIONAL
HISTORY, HOWEVER, THAT BY PASSAGE OF THIS LAW CONGRESS CONTEMPLATED
THAT THOSE TAXPAYERS WHO ELECTED TO ADOPT THIS ACCOUNTING METHOD FOR
THEIR OWN ADVANTAGE COULD BY THIS MEANS OBTAIN A FURTHER TAX ADVANTAGE
DENIED ALL OTHER TAXPAYERS, WHEREBY THEY COULD, AS TO THE SAME TAXABLE
TRANSACTION, REPORT IN PART ON A CASH RECEIPTS BASIS AND IN PART ON AN
ACCRUAL BASIS. 

WE FIND NOTHING UNREASONABLE IN THE REGULATIONS HERE.  SEE
COMMISSIONER V. WHEELER, 324 U.S. 542. 

IT IS ARGUED THAT NOTWITHSTANDING WHAT HAS BEEN SAID, CONGRESS BY
ENACTING SEC. 501 OF THE 1940 SECOND REVENUE ACT, 54 STAT. 974, 1004,
26 U.S.C. SEC. 115(L), HAD PROVIDED A DEFINITION OF "EARNINGS AND
PROFITS" WHICH INCLUDES THESE UNPAID INSTALLMENT OBLIGATIONS AND THAT
THE REGULATION HERE CONFLICTS WITH SEC. 115(L),  FN15  WHICH IS
APPLICABLE ALIKE TO BOTH THE INCOME AND THE EXCESS PROFITS TAXES. 
THERE ARE AT LEAST TWO REASONS WHY WE CANNOT ACCEPT THIS ARGUMENT.  IN
THE FIRST PLACE, NEITHER SEC. 115(L) NOR ANY OTHER PURPORTS TO ALTER
THE COMMISSIONER'S POWER TO PROMULGATE REASONABLE REGULATIONS WHICH
REQUIRE TAXPAYERS WHO ADOPT THE INSTALLMENT BASIS OF ACCOUNTING TO USE
AN ACCOUNTING METHOD THAT REFLECTS TRUE INCOME.  THE HYBRID METHOD HERE
URGED WOULD NOT ACCOMPLISH THAT RESULT. 

IN THE SECOND PLACE, WE CANNOT AGREE WITH THE RESPONDENT'S
INTERPRETATION OF SEC. 115(L).  HE ARGUES THAT "EARNINGS AND PROFITS"
DERIVED FROM A SALE OF PROPERTY ARE DEFINED IN SEC. 115(L) CONSIDERED
IN THE LIGHT OF SECS. 111, 112, AND 113; THAT THESE SECTIONS TOGETHER
DEFINE SUCH EARNINGS AND PROFITS AS ALL GAIN "REALIZED" IN THE YEAR OF
SALE AND "RECOGNIZED" UNDER THE LAW APPLICABLE TO THE YEAR OF SALE;
THAT ALL THE ANTICIPATED PROFITS FROM THESE INSTALLMENT SALES WERE
"REALIZED" WHEN THE SALES WERE MADE BECAUSE THE INSTALLMENT OBLIGATIONS
OF THE PURCHASERS WERE RECEIVED BY RESPONDENT IN THE YEAR OF SALE AND
THEY MUST BE ASSUMED TO HAVE BEEN WORTH THEIR FACE VALUE; THAT THEY
WERE "RECOGNIZED" AS TAXABLE BY SEC. 111(C), THE LAW APPLICABLE TO THE
YEAR OF SALE; AND THAT CONSEQUENTLY THE COMMISSIONER WAS COMPELLED TO
ACCEPT THESE LAWFULLY "REALIZED" AND "RECOGNIZED" ACCUMULATED PROFITS
AS "INVESTED CAPITAL" FOR EXCESS PROFITS TAX PURPOSES, EVEN THOUGH NOT
PREVIOUSLY REPORTED AS TAXABLE INCOME FOR EITHER INCOME TAX OR EXCESS
PROFITS TAX PURPOSES.  FINALLY RESPONDENT CONTENDS THAT SEC. 44 MERELY
CONFERRED UPON IT A PRIVILEGE TO DEFER PAYMENT OF INCOME TAX ON ITS TAX
"RECOGNIZED" PROFITS REALIZED FROM INSTALLMENT SALES UNTIL THE UNPAID
INSTALLMENT OBLIGATIONS WERE COLLECTED.    THE CONGRESSIONAL REPORTS ON
SEC. 115(L) DO NOT PROVIDE SUPPORT FOR THE IDEA THAT GAINS NOT INCLUDED
IN TAXABLE INCOME UNDER THE TAXPAYER'S METHOD OF ACCOUNTING MAY
NEVERTHELESS BE CONSIDERED "REALIZED" AND "RECOGNIZED" FOR COMPUTING
TAX ADJUSTMENTS OR DEDUCTIONS SO LONG AS THEY MIGHT HAVE ENTERED INTO
SUCH COMPUTATIONS UNDER A DIFFERENT METHOD OF ACCOUNTING.  FN16
FURTHERMORE, NEITHER SEC. 111, SEC. 112, NOR SEC. 113 REQUIRES A
"RECOGNITION" OF THE FULL FACE VALUE OF INSTALLMENT PAPER.  IT IS TRUE
THAT SEC. 111(B) DOES PROVIDE THAT GAIN OR LOSS "REALIZED" FROM THE
SALE OF PROPERTY SHALL BE MEASURED BY THE "SUM OF ANY MONEY RECEIVED
PLUS THE FAIR MARKET VALUE OF THE PROPERTY (OTHER THAN MONEY) RECEIVED"
AND SEC. 111(C) PROVIDES THAT THE EXTENT OF GAIN OR LOSS SHALL BE
"RECOGNIZED" AS DETERMINED "UNDER THE PROVISIONS OF SECTION 112."  BUT
SEC. 111(D) PROVIDES THAT NOTHING IN SEC. 111 "SHALL BE CONSTRUED TO
PREVENT (IN THE CASE OF PROPERTY SOLD UNDER CONTRACT PROVIDING FOR
PAYMENT IN INSTALLMENTS) THE TAXATION OF THAT PORTION OF ANY
INSTALLMENT PAYMENT REPRESENTING GAIN OR PROFIT IN THE YEAR IN WHICH
SUCH PAYMENT IS RECEIVED."  THIS MEANS THAT WHERE A TAXPAYER HAS
VALIDLY REPORTED ITS INCOME FROM INSTALLMENT SALES ON THE INSTALLMENT
BASIS PROVIDED BY SEC. 44, THAT SECTION, NOT SECS. 111, 112, AND 113,
PRESCRIBES THE EXTENT TO WHICH RECEIPTS FROM SUCH SALES ARE
"RECOGNIZED" AS TAXABLE AND THE YEAR IN WHICH SUCH RECEIPTS ARE
"RECOGNIZED" IN COMPUTING TAXABLE INCOME.  SECTION 44 PROVIDES FOR THE
RETURN AS INCOME "IN ANY TAXABLE YEAR THAT PROPORTION OF THE
INSTALLMENT PAYMENTS ACTUALLY RECEIVED IN THAT YEAR WHICH THE GROSS
PROFIT REALIZED OR TO BE REALIZED WHEN PAYMENT IS COMPLETED, BEARS TO
THE TOTAL CONTRACT PRICE."  UNLIKE SEC. 111, SEC. 44 DOES NOT RECOGNIZE
AS SUBJECT TO INCOME TAX LIABILITY THE "MARKET VALUE" OF DEFERRED
INSTALLMENT OBLIGATIONS.  THEY MAY NEVER BE RECOGNIZED BY A TAXPAYER ON
THE INSTALLMENT BASIS FOR TAX PURPOSES UNDER SEC. 44 OR ANY OTHER
ANTICIPATED PROFITS FROM THESE DEFERRED OBLIGATIONS ARE RECOGNIZED AND
TAXABLE UNDER SEC. 44 ONLY IF THE OBLIGATIONS ARE PAID AND WHEN THEY
ARE PAID, UNLESS THEY ARE SOLD OR TRANSFERRED BEFORE PAYMENT.  THUS,
WHATEVER MEANING IS GIVEN TO THE WORDS "REALIZED" AND "RECOGNIZED," THE
REGULATION HERE CONSIDERED IS NOT IN CONFLICT WITH SECS. 115(L), 111,
112, AND 113. 

THE REGULATION IS VALID.  THE RESPONDENT CAN INCLUDE IN ITS EQUITY
INVESTED CAPITAL ONLY THAT PORTION OF ITS PROFITS FROM INSTALLMENT
PAYMENTS WHICH IT HAS ACTUALLY RECEIVED AND ON WHICH IT HAS ALREADY
PAID INCOME TAXES IN THE YEARS OF RECEIPT.  REVERSED. 

FN1  H.R. REP. NO. 2894, 76TH CONG., 3D SESS., 1-2. 

FN2  OTHER ADJUSTMENTS NOT HERE MATERIAL ARE PROVIDED, BUT THE CHIEF
DEDUCTION OR "ADJUSTMENT" IS THE ONE NOTED ABOVE. 

FN3  THE STRAIGHT 8% FIGURE OF 1940 WAS MODIFIED IN SEVERAL RESPECTS
NOT HERE MATERIAL IN 1941 AND SUBSEQUENT YEARS.  55 STAT. 699; 56 STAT.
911; 58 STAT. 55. 

FN4  IN ITS 1943 RETURN RESPONDENT ALSO REPORTED THE AMOUNT OF SUCH
UNREALIZED PROFITS SHOWN ON ITS BOOKS AS OF THE END OF THE TWO
PRECEDING YEARS FOR PURPOSES OF CALCULATING THE EXCESS PROFITS CREDIT
CARRYOVER AUTHORIZED BY SEC. 710(C). 

FN5  THE KIMBRELL CASE WAS SUBSEQUENTLY REVERSED BUT NOT ON THE
CONTENTION HERE URGED.  159 F.2D 608. 

FN6  SECTION 29.115-3 OF REGULATIONS 111:  "EARNINGS OR PROFITS.   -
IN DETERMINING THE AMOUNT OF EARNINGS OR PROFITS (WHETHER OF THE
TAXABLE YEAR, OR ACCUMULATED SINCE FEBRUARY 28, 1913, OR ACCUMULATED
PRIOR TO MARCH 1, 1913) DUE CONSIDERATION MUST BE GIVEN TO THE FACTS,
AND, WHILE MERE BOOKKEEPING ENTRIES INCREASING OR DECREASING SURPLUS
WILL NOT BE CONCLUSIVE, THE AMOUNT OF THE EARNINGS OR PROFITS IN ANY
CASE WILL BE DEPENDENT UPON THE METHOD OF ACCOUNTING PROPERLY EMPLOYED
IN COMPUTING NET INCOME.  FOR INSTANCE, A CORPORATION KEEPING ITS BOOKS
AND FILING ITS INCOME TAX RETURNS UNDER SECTIONS 41, 42, AND 43 ON THE
CASH RECEIPTS AND DISBURSEMENTS BASIS MAY NOT USE THE ACCRUAL BASIS IN
DETERMINING EARNINGS AND PROFITS; A CORPORATION COMPUTING INCOME ON THE
INSTALLMENT BASIS AS PROVIDED IN SECTION 44 SHALL, WITH RESPECT TO THE
INSTALLMENT TRANSACTIONS, COMPUTE EARNINGS AND PROFITS ON SUCH BASIS;
...  " 

FN7  THE MEANING OF ALL TERMS USED IN THE SUBCHAPTER DEALING WITH THE
INCOME TAX WAS EXPRESSLY MADE APPLICABLE TO TERMS USED IN THE EXCESS
PROFITS SUBCHAPTER.  SEC. 728.  TREASURY REGULATIONS 112 PROVIDED:  "
...  IN GENERAL, THE CONCEPT OF 'ACCUMULATED EARNINGS AND PROFITS' FOR
THE PURPOSE OF THE EXCESS PROFITS TAX IS THE SAME AS FOR THE PURPOSE OF
THE INCOME TAX."  SEC. 35.718-2.  SEE ALSO H.R. REP. NO. 2894, 76TH
CONG., 3D SESS., 41. 

FN8  THIS PART OF THE REGULATION WAS ADDED AS AN AMENDMENT TO REG.
103, SEC. 19.115-3, NOW SEC. 29.115-3 OF REG. 111, AFTER ADOPTION OF
THE 1940 EXCESS PROFITS TAX LAW.  T.D. 5059, JULY 8, 1941. 

FN9  G.C.M. 2951, VII-I CUM. BULL.  160(1928); I.T. 3253, 1939-1 CUM.
BULL.  178; CONSOLIDATED ASPHALT CO., 1 B.T.A. 79, 82; HENRY REUBEL
EXECUTOR, 1 B.T.A. 676, 678-680; B.B. TODD, INC., 1 B.T.A. 762, 766;
BANK OF HARTSVILLE, 1 B.T.A. 920, 921; ATLANTIC COAST LINE R. CO., 2
B.T.A. 892, 894-895; UNITED STATES V. ANDERSON, 269 U.S. 422, 440;
JACOB BROS. V. COMM'R, 50 F.2D 394, 396; JENKINS V. BITGOOD, 22
F.SUPP.  16, 17-18, AFF'D, 101 F.2D 17. 

FN10  SCHMOLLER & MUELLER PIANO CO. V. UNITED STATES, 67 CT. CL. 428;
JOHN M. BRANT CO. V. UNITED STATES, 40 F.2D 126; STANDARD COMPUTING
SCALE CO. V. UNITED STATES, 52 F.2D 1018; JACOB BROS. V. COMM'R, 50
F.2D 394; TULL & GIBBS V. UNITED STATES, 48 F.2D 148; APPEAL OF BLUM'S,
INC., 7 B.T.A. 737, 771; NEW ENGLAND FURNITURE & CARPET CO. V. COMM'R,
9 B.T.A. 334; GREEN FURNITURE CO. V. COMM'R, 14 B.T.A. 508; S. DAVIDSON
& BROS. V. COMM'R, 21 B.T.A. 638, 644; FEDERAL ST. & PLEASANT VALLEY
PASSENGER R. CO. V. COMM'R, 24 B.T.A. 262, 266. 

FN11  ARTICLE 117 OF REGULATIONS 33(REVISED), PROMULGATED JAN. 2,
1918, AND ARTICLE 42 OF REGULATIONS 45, PROMULGATED APRIL 17, 1919. 

FN12  B.B. TODD, INC., 1 B.T.A. 762; H.B. GRAVES CO., 1 B.T.A. 859;
HOOVER-BOND CO., 1 B.T.A. 929; SIX HUNDRED AND FIFTY WEST END AVENUE
CO., 2 B.T.A. 958. 

FN13  S. REP. NO. 52, 69TH CONG., 1ST SESS., 19, THE SENATE FINANCE
COMMITTEE'S REPORT ON REVENUE ACT OF 1926, 44 STAT. 9, 23. 

FN14  S. REP. NO. 52, 69TH CONG., 1ST SESS. 19; WILLCUTS V. GRADWOHL,
58 F.2D 587, 589-590. 

FN15  SECTION 115(L) PROVIDES:  "THE GAIN OR LOSS REALIZED FROM THE
SALE OR OTHER DISPOSITION ...  OF PROPERTY BY A CORPORATION -  ... 

"(2)  FOR THE PURPOSE OF THE COMPUTATION OF EARNINGS AND PROFITS OF
THE CORPORATION FOR ANY PERIOD BEGINNING AFTER FEBRUARY 28, 1913, SHALL
BE DETERMINED BY USING AS THE ADJUSTED BASIS THE ADJUSTED BASIS (UNDER
THE LAW APPLICABLE TO THE YEAR IN WHICH THE SALE OR OTHER DISPOSITION
WAS MADE) FOR DETERMINING GAIN. 

"GAIN OR LOSS SO REALIZED SHALL INCREASE OR DECREASE THE EARNINGS AND
PROFITS TO, BUT NOT BEYOND, THE EXTENT TO WHICH SUCH A REALIZED GAIN OR
LOSS WAS RECOGNIZED IN COMPUTING NET INCOME UNDER THE LAW APPLICABLE TO
THE YEAR IN WHICH SUCH SALE OR DISPOSITION WAS MADE." 

FN16  THE CONFERENCE COMMITTEE REPORT ON THE SECOND REVENUE ACT OF
1940, 54 STAT. 974, SAID WITH REFERENCE TO SEC. 115(L):  "THE
PROVISIONS IN THE HOUSE AND SENATE BILLS, THAT GAIN OR LOSS SO REALIZED
SHALL INCREASE OR DECREASE THE EARNINGS AND PROFITS TO, BUT NOT BEYOND,
THE EXTENT RECOGNIZED IN COMPUTING NET INCOME UNDER THE LAW APPLICABLE
TO THE YEAR IN WHICH SUCH SALE OR DISPOSITION WAS MADE, ARE RETAINED. 
AS USED IN THIS SUBSECTION THE TERM 'RECOGNIZED' RELATES TO A REALIZED
GAIN OR LOSS WHICH IS RECOGNIZED PURSUANT TO THE PROVISIONS OF LAW, FOR
EXAMPLE, SEE SECTION 112 OF THE INTERNAL REVENUE CODE.  IT DOES NOT
RELATE TO LOSSES DISALLOWED OR NOT TAKEN INTO ACCOUNT."  CONF. REP. NO.
3002, 76TH CONG., 3D SESS., 60. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BURTON DISSENT. 
..END :


















WINTERS V. NEW YORK, 333 U.S. 507 


NO. 3.  ARGUED MARCH 27, 1946.  - REARGUED NOVEMBER 19, 1946.  -
REARGUED NOVEMBER 10, 1947.  - DECIDED MARCH 29, 1948.  - 294 N.Y. 545,
63 N.E.2D 98, REVERSED. 


SUBSECTION 2 OF SEC. 1141 OF THE NEW YORK PENAL LAW, AS CONSTRUED BY
THE STATE COURT OF APPEALS TO PROHIBIT DISTRIBUTION OF A MAGAZINE
PRINCIPALLY MADE UP OF NEWS OR STORIES OF CRIMINAL DEEDS OF BLOODSHED
OR LUST SO MASSED AS TO BECOME VEHICLES FOR INCITING VIOLENT AND
DEPRAVED CRIMES AGAINST THE PERSON, HELD SO VAGUE AND INDEFINITE AS TO
VIOLATE THE FOURTEENTH AMENDMENT BY PROHIBITING ACTS WITHIN THE
PROTECTION OF THE GUARANTY OF FREE SPEECH AND PRESS.  PP. 508-520. 

WINTERS V. NEW YORK. 

APPEAL FROM THE COURT OF SPECIAL SESSIONS OF NEW YORK CITY. 

APPELLANT WAS CONVICTED FOR HAVING CERTAIN MAGAZINES IN HIS
POSSESSION WITH INTENT TO SELL THEM, IN VIOLATION OF SUBSECTION 2 OF
SEC. 1141 OF THE NEW YORK PENAL LAW.  THE APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK AFFIRMED.  268 APP. DIV. 30, 48 N.Y. SUPP.
230.  THE COURT OF APPEALS OF NEW YORK AFFIRMED, 294 N.Y. 545, 63
N.E.2D 98, AND AMENDED ITS REMITTITUR TO THE TRIAL COURT SO AS TO SHOW
THAT IT HAD HELD THAT THE CONVICTION DID NOT VIOLATE THE FOURTEENTH
AMENDMENT.  294 N.Y. 979, 63 N.E.2D 713.  REVERSED, P. 520. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

APPELLANT IS A NEW YORK CITY BOOKDEALER, CONVICTED, ON INFORMATION,
FN1  OF A MISDEMEANOR FOR HAVING IN HIS POSSESSION WITH INTENT TO SELL
CERTAIN MAGAZINES CHARGED TO VIOLATE SUBSECTION 2 OF SEC. 1141 OF THE
NEW YORK PENAL LAW.  IT READS AS FOLLOWS: 

"SEC. 1141.  OBSCENE PRINTS AND ARTICLES 

1.  A PERSON  ...  WHO, 

2.  PRINTS, UTTERS, PUBLISHES, SELLS, LENDS, GIVES AWAY, DISTRIBUTES
OR SHOWS, OR HAS IN HIS POSSESSION WITH INTENT TO SELL, LEND, GIVE
AWAY, DISTRIBUTE OR SHOW, OR OTHERWISE OFFERS FOR SALE, LOAN, GIFT OR
DISTRIBUTION, ANY BOOK, PAMPHLET, MAGAZINE, NEWSPAPER OR OTHER PRINTED
PAPER DEVOTED TO THE PUBLICATION, AND PRINCIPALLY MADE UP OF CRIMINAL
NEWS, POLICE REPORTS, OR ACCOUNTS OF CRIMINAL DEEDS, OR PICTURES, OR
STORIES OF DEEDS OF BLOODSHED, LUST OR CRIME; ... 

     .         .         .        .         . 

IS GUILTY OF A MISDEMEANOR,  ...  "  UPON APPEAL FROM THE COURT OF
SPECIAL SESSIONS, THE TRIAL COURT, THE CONVICTION WAS UPHELD BY THE
APPELLATE DIVISION OF THE NEW YORK SUPREME COURT, 268 APP. DIV. 30, 48
N.Y.S.2D 230, WHOSE JUDGMENT WAS LATER UPHELD BY THE NEW YORK COURT OF
APPEALS.  294 N.Y. 545, 63 N.E.2D 98. 

THE VALIDITY OF THE STATUTE WAS DRAWN IN QUESTION IN THE STATE COURTS
AS REPUGNANT TO THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES IN THAT IT DENIED THE ACCUSED THE RIGHT OF FREEDOM OF
SPEECH AND PRESS, PROTECTED AGAINST STATE INTERFERENCE BY THE
FOURTEENTH AMENDMENT.  GITLOW V. NEW YORK, 268 U.S. 652, 666; PENNEKAMP
V. FLORIDA, 328 U.S. 331, 335.  THE PRINCIPLE OF A FREE PRESS COVERS
DISTRIBUTION AS WELL AS PUBLICATION.  LOVELL V. CITY OF GRIFFIN, 303
U.S. 444, 452.  AS THE VALIDITY OF THE SECTION WAS UPHELD IN A FINAL
JUDGMENT BY THE HIGHEST COURT OF THE STATE AGAINST THIS CONSTITUTIONAL
CHALLENGE, THIS COURT HAS JURISDICTION UNDER JUDICIAL CODE SEC.
237(A).  THIS APPEAL WAS ARGUED AT THE OCTOBER 1945 TERM OF THIS COURT
AND SET DOWN FOR REARGUMENT BEFORE A FULL BENCH AT THE OCTOBER 1946
TERM.  IT WAS THEN REARGUED AND AGAIN SET DOWN FOR FURTHER REARGUMENT
AT THE PRESENT TERM. 

THE APPELLANT CONTENDS THAT THE SUBSECTION VIOLATES THE RIGHT OF FREE
SPEECH AND PRESS BECAUSE IT IS VAGUE AND INDEFINITE.  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.  STROMBERG V.
CALIFORNIA, 283 U.S. 359, 369; HERNDON V. LOWRY, 301 U.S. 242, 258.  A
FAILURE OF A STATUTE LIMITING FREEDOM OF EXPRESSION TO GIVE FAIR NOTICE
OF WHAT ACTS WILL BE PUNISHED AND SUCH A STATUTE'S INCLUSION OF
PROHIBITIONS AGAINST EXPRESSIONS, PROTECTED BY THE PRINCIPLES OF THE
FIRST AMENDMENT, VIOLATES AN ACCUSED'S RIGHTS UNDER PROCEDURAL DUE
PROCESS AND FREEDOM OF SPEECH OR PRESS.  WHERE THE ALLEGED VAGUENESS OF
A STATE STATUTE HAD BEEN CURED BY AN OPINION OF THE STATE COURT,
CONFINING A STATUTE PUNISHING THE CIRCULATION OF PUBLICATIONS "HAVING A
TENDENCY TO ENCOURAGE OR INCITE THE COMMISSION OF ANY CRIME" TO
"ENCOURAGING AN ACTUAL BREACH OF LAW," THIS COURT AFFIRMED A CONVICTION
UNDER THE STATED LIMITATION OF MEANING.  THE ACCUSED PUBLICATION WAS
READ AS ADVOCATING THE COMMISSION OF THE CRIME OF INDECENT EXPOSURE. 
FOX V. WASHINGTON, 236 U.S. 273, 277. 

WE RECOGNIZE THE IMPORTANCE OF THE EXERCISE OF A STATE'S POLICE POWER
TO MINIMIZE ALL INCENTIVES TO CRIME, PARTICULARLY IN THE FIELD OF
SANGUINARY OR SALACIOUS PUBLICATIONS WITH THEIR STIMULATION OF JUVENILE
DELINQUENCY.  ALTHOUGH WE ARE DEALING WITH AN ASPECT OF A FREE PRESS IN
ITS RELATION TO PUBLIC MORALS, THE PRINCIPLES OF UNRESTRICTED
DISTRIBUTION OF PUBLICATIONS ADMONISH US OF THE PARTICULAR IMPORTANCE
OF A MAINTENANCE OF STANDARDS OF CERTAINTY IN THE FIELD OF CRIMINAL
PROSECUTION FOR VIOLATION OF STATUTORY PROHIBITIONS AGAINST
DISTRIBUTION.  WE DO NOT ACCEDE TO APPELLEE'S SUGGESTION THAT THE
CONSTITUTIONAL PROTECTION FOR A FREE PRESS APPLIES ONLY TO THE
EXPOSITION OF IDEAS.  THE LINE BETWEEN THE INFORMING AND THE
ENTERTAINING IS TOO ELUSIVE FOR THE PROTECTION OF THAT BASIC RIGHT. 
EVERYONE IS FAMILIAR WITH INSTANCES OF PROPAGANDA THROUGH FICTION. 
WHAT IS ONE MAN'S AMUSEMENT, TEACHES ANOTHER'S DOCTRINE.  THOUGH WE CAN
SEE NOTHING OF ANY POSSIBLE VALUE TO SOCIETY IN THESE MAGAZINES, THEY
ARE AS MUCH ENTITLED TO THE PROTECTION OF FREE SPEECH AS THE BEST OF
LITERATURE.  CF. HANNEGAN V. ESQUIRE, 327 U.S. 146, 153, 158.  THEY ARE
EQUALLY SUBJECT TO CONTROL IF THEY ARE LEWD, INDECENT, OBSCENE OR
PROFANE.  EX PARTE JACKSON, 96 U.S. 727, 736; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568. 

THE SECTION OF THE PENAL LAW, SEC. 1141(2), UNDER WHICH THE
INFORMATION WAS FILED IS A PART OF THE "INDECENCY" ARTICLE OF THAT
LAW.  IT COMES UNDER THE CAPTION "OBSCENE PRINTS AND ARTICLES."  OTHER
1141(1), A SECTION NOT HERE IN ISSUE BUT UNDER THE SAME CAPTION,
PUNISHES THE DISTRIBUTION OF OBSCENE, LEWD, LASCIVIOUS, FILTHY,
INDECENT OR DISGUSTING MAGAZINES.  FN2  SECTION 1141(2) ORIGINALLY WAS
AIMED AT THE PROTECTION OF MINORS FROM THE DISTRIBUTION OF PUBLICATIONS
DEVOTED PRINCIPALLY TO CRIMINAL NEWS AND STORIES OF BLOODSHED, LUST OR
CRIME.  FN3  IT WAS LATER BROADENED TO INCLUDE ALL THE POPULATION AND
OTHER PHASES OF PRODUCTION AND POSSESSION. 

ALTHOUGH MANY OTHER STATES HAVE SIMILAR STATUTES, THEY, LIKE THE
EARLY STATUTES RESTRICTING PAUPERS FROM CHANGING RESIDENCE, HAVE LAIN
DORMANT FOR DECADES.  EDWARDS V. CALIFORNIA, 314 U.S. 160, 176.  ONLY
TWO OTHER STATE COURTS, WHOSE REPORTS ARE PRINTED, APPEAR TO HAVE
CONSTRUED LANGUAGE IN THEIR LAWS SIMILAR TO THAT HERE INVOLVED.  IN
STROHM V. ILLINOIS, 160 ILL. 582, 43 N.E. 622, A STATUTE TO SUPPRESS
EXHIBITING TO ANY MINOR CHILD PUBLICATIONS OF THIS CHARACTER WAS
CONSIDERED.  THE CONVICTION WAS UPHELD.  THE CASE, HOWEVER, APPARENTLY
DID NOT INVOLVE ANY PROBLEM OF FREE SPEECH OR PRESS OR DENIAL OF DUE
PROCESS FOR UNCERTAINTY UNDER THE FOURTEENTH AMENDMENT. 

IN STATE V. MCKEE, 73 CONN. 18, 46 A. 409, THE COURT CONSIDERED A
CONVICTION UNDER A STATUTE WHICH MADE CRIMINAL THE SALE OF MAGAZINES
"DEVOTED TO THE PUBLICATION, OR PRINCIPALLY MADE UP OF CRIMINAL NEWS,
POLICE REPORTS, OR PICTURES AND STORIES OF DEEDS OF BLOODSHED, LUST, OR
CRIME."  THE GIST OF THE OFFENSE WAS THOUGHT TO BE A "SELECTION OF
IMMORALITIES SO TREATED AS TO EXCITE ATTENTION AND INTEREST SUFFICIENT
TO COMMAND CIRCULATION FOR A PAPER DEVOTED MAINLY TO THE COLLECTION OF
SUCH MATTERS."  PAGE 27.  IT WAS SAID, APROPOS OF THE STATE'S
CONSTITUTIONAL PROVISION AS TO FREE SPEECH, THAT THE ACT DID NOT
VIOLATE ANY CONSTITUTIONAL PROVISION RELATING TO THE FREEDOM OF THE
PRESS.  IT WAS HELD, P. 31, THAT THE PRINCIPAL EVIL AT WHICH THE
STATUTE WAS DIRECTED WAS "THE CIRCULATION OF THIS MASSED IMMORALITY." 
AS THE CHARGE STATED THAT THE OFFENSE MIGHT BE COMMITTED "WHENEVER THE
OBJECTIONABLE MATTER IS A LEADING FEATURE OF THE PAPER OR WHEN SPECIAL
ATTENTION IS DEVOTED TO THE PUBLICATION OF THE PROHIBITED ITEMS," THE
COURT FELT THAT IT FAILED TO STATE THE FULL MEANING OF THE STATUTE AND
REVERSED.  AS IN THE STROHM CASE, DENIAL OF DUE PROCESS FOR UNCERTAINTY
WAS NOT RAISED. 

ON ITS FACE, THE SUBSECTION HERE INVOLVED VIOLATES THE RULE OF THE
STROMBERG AND HERNDON CASES, SUPRA, THAT STATUTES WHICH INCLUDE
PROHIBITIONS OF ACTS FAIRLY WITHIN THE PROTECTION OF A FREE PRESS ARE
VOID.  IT COVERS DETECTIVE STORIES, TREATISES ON CRIME, REPORTS OF
BATTLE CARNAGE, ET CETERA.  IN RECOGNITION OF THIS OBVIOUS DEFECT, THE
NEW YORK COURT OF APPEALS LIMITED THE SCOPE BY CONSTRUCTION.  ITS ONLY
INTERPRETATION OF THE MEANING OF THE PERTINENT SUBSECTION IS THAT GIVEN
IN THIS CASE.  AFTER POINTING OUT THAT NEW YORK STATUTES AGAINST
INDECENT OR OBSCENE PUBLICATIONS HAVE GENERALLY BEEN CONSTRUED TO REFER
TO SEXUAL IMPURITY, IT INTERPRETED THE SECTION HERE IN QUESTION TO
FORBID THESE PUBLICATIONS AS "INDECENT OR OBSCENE" IN A DIFFERENT
MANNER.  THE COURT HELD THAT COLLECTIONS OF CRIMINAL DEEDS OF BLOODSHED
OR LUST "CAN BE SO MASSED AS TO BECOME VEHICLES FOR INCITING VIOLENT
AND DEPRAVED CRIMES AGAINST THE PERSON AND IN THAT CASE SUCH
PUBLICATIONS ARE INDECENT OR OBSCENE IN AN ADMISSIBLE SENSE,  ...  "
294 N.Y. AT 550.  "THIS IDEA," ITS OPINION GOES ON TO SAY, "WAS THE
PRINCIPAL REASON FOR THE ENACTMENT OF THE STATUTE."  THE COURT LEFT
OPEN THE QUESTION OF WHETHER "THE STATUTE EXTENDS TO ACCOUNTS OF
CRIMINAL DEEDS NOT CHARACTERIZED BY BLOODSHED OR LUST" BECAUSE THE
MAGAZINES IN QUESTION "ARE NOTHING BUT STORIES AND PICTURES OF CRIMINAL
DEEDS OF BLOODSHED AND LUST."  AS THE STATUTE IN TERMS EXTENDED TO
OTHER CRIMES, IT MAY BE SUPPOSED THAT THE RESERVATION WAS ON ACCOUNT OF
DOUBTS AS TO THE VALIDITY OF SO WIDE A PROHIBITION.  THE COURT
DECLARED:  "IN SHORT, WE HAVE HERE BEFORE US ACCUMULATIONS OF DETAILS
OF HEINOUS WRONGDOING WHICH PLAINLY CARRIED AN APPEAL TO THAT PORTION
OF THE PUBLIC WHO (AS MANY RECENT RECORDS REMIND US) ARE DISPOSED TO
TAKE TO VICE FOR ITS OWN SAKE."  FURTHER, THE COURT OF APPEALS, 294
N.Y. AT 549, LIMITED THE STATUTE SO AS NOT TO "OUTLAW ALL COMMENTARIES
ON CRIME FROM DETECTIVE TALES TO SCIENTIFIC TREATISES" ON THE GROUND
THAT THE LEGISLATURE DID NOT INTEND SUCH LITERALNESS OF CONSTRUCTION. 
IT THOUGHT THAT THE MAGAZINES THE POSSESSION OF WHICH CAUSED THE FILING
OF THE INFORMATION WERE INDECENT IN THE SENSE JUST EXPLAINED.  THE
COURT HAD NO OCCASION TO AND DID NOT WEIGH THE CHARACTER OF THE
MAGAZINE EXHIBITS BY THE MORE FREQUENTLY USED SCALES OF SEC. 1141(1),
PRINTED IN NOTE 2.  IT DID NOT INTERPRET SEC. 1141(2) TO PUNISH
DISTRIBUTION OF INDECENT OR OBSCENE PUBLICATIONS, IN THE USUAL SENSE,
BUT THAT THE PRESENT MAGAZINES WERE INDECENT AND OBSCENE BECAUSE THEY
"MASSED" STORIES OF BLOODSHED AND LUST TO INCITE CRIMES.  THUS
INTERPRETING SEC. 1141(2) TO INCLUDE THE EXPANDED CONCEPT OF INDECENCY
AND OBSCENITY STATED IN ITS OPINION, THE COURT OF APPEALS MET
APPELLANT'S CONTENTION OF INVALIDITY FROM INDEFINITENESS AND
UNCERTAINTY OF THE SUBSECTION BY SAYING, 294 N.Y. AT 551, 

"IN THE NATURE OF THINGS THERE CAN BE NO MORE PRECISE TEST OF WRITTEN
INDECENCY OR OBSCENITY THAN THE CONTINUING AND CHANGEABLE EXPERIENCE OF
THE COMMUNITY AS TO WHAT TYPES OF BOOKS ARE LIKELY TO BRING ABOUT THE
CORRUPTION OF PUBLIC MORALS OR OTHER ANALOGOUS INJURY TO THE PUBLIC
ORDER.  CONSEQUENTLY, A QUESTION AS TO WHETHER A PARTICULAR PUBLICATION
IS INDECENT OR OBSCENE IN THAT SENSE IS A QUESTION OF THE TIMES WHICH
MUST BE DETERMINED AS MATTER OF FACT, UNLESS THE APPEARANCES ARE
THOUGHT TO BE NECESSARILY HARMLESS FROM THE STANDPOINT OF PUBLIC ORDER
OR MORALITY." 

THE OPINION WENT ON TO EXPLAIN THAT PUBLICATION OF ANY CRIME MAGAZINE
WOULD BE NO MORE HAZARDOUS UNDER THIS INTERPRETATION THAN ANY QUESTION
OF DEGREE AND CONCLUDED, P. 552, 

"SO WHEN REASONABLE MEN MAY FAIRLY CLASSIFY A PUBLICATION AS
NECESSARILY OR NATURALLY INDECENT OR OBSCENE, A MISTAKEN VIEW BY THE
PUBLISHER AS TO ITS CHARACTER OR TENDENCY IS IMMATERIAL." 

THE COURT OF APPEALS BY THIS AUTHORITATIVE INTERPRETATION MADE THE
SUBSECTION APPLICABLE TO PUBLICATIONS THAT, BESIDES MEETING THE OTHER
PARTICULARS OF THE STATUTE, SO MASSED THEIR COLLECTION OF PICTURES AND
STORIES OF BLOODSHED AND OF LUST "AS TO BECOME VEHICLES FOR INCITING
VIOLENT AND DEPRAVED CRIMES AGAINST THE PERSON."  THUS, THE STATUTE
FORBIDS THE MASSING OF STORIES OF BLOODSHED AND LUST IN SUCH A WAY AS
TO INCITE TO CRIME AGAINST THE PERSON.  THIS CONSTRUCTION FIXES THE
MEANING OF THE STATUTE FOR THIS CASE.  THE INTERPRETATION BY THE COURT
OF APPEALS PUTS THESE WORDS IN THE STATUTE AS DEFINITELY AS IF IT HAD
BEEN SO AMENDED BY THE LEGISLATURE.  HEBERT V. LOUISIANA, 272 U.S. 312,
317; SKIRIOTES V. FLORIDA, 313 U.S. 69, 79.  WE ASSUME THAT THE
DEFENDANT, AT THE TIME HE ACTED, WAS CHARGEABLE WITH KNOWLEDGE OF THE
SCOPE OF SUBSEQUENT INTERPRETATION.  COMPARE LANZETTA V. NEW JERSEY,
306 U.S. 451.  AS LEWDNESS IN PUBLICATIONS IS PUNISHABLE UNDER SEC.
1141(1) AND THE USUAL RUN OF STORIES OF BLOODSHED, SUCH AS DETECTIVE
STORIES, ARE EXCLUDED, IT IS THE MASSING AS AN INCITATION TO CRIME THAT
BECOMES THE IMPORTANT ELEMENT. 

ACTS OF GROSS AND OPEN INDECENCY OR OBSCENITY, INJURIOUS TO PUBLIC
MORALS, ARE INDICTABLE AT COMMON LAW, AS VIOLATIVE OF THE PUBLIC POLICY
THAT REQUIRES FROM THE OFFENDER RETRIBUTION FOR ACTS THAT FLAUNT
ACCEPTED STANDARDS OF CONDUCT.  1 BISHOP, CRIMINAL LAW (9TH ED.), SEC.
500; WHARTON, CRIMINAL LAW (12TH ED.), SEC. 16.  WHEN A LEGISLATIVE
BODY CONCLUDES THAT THE MORES OF THE COMMUNITY CALL FOR AN EXTENSION OF
THE IMPERMISSIBLE LIMITS, AN ENACTMENT AIMED AT THE EVIL IS PLAINLY
WITHIN ITS POWER, IF IT DOES NOT TRANSGRESS THE BOUNDARIES FIXED BY THE
CONSTITUTION FOR FREEDOM OF EXPRESSION.  THE STANDARDS OF CERTAINTY IN
STATUTES PUNISHING FOR OFFENSES IS HIGHER THAN IN THOSE DEPENDING
PRIMARILY UPON CIVIL SANCTION FOR ENFORCEMENT.  THE CRIME "MUST BE
DEFINED WITH APPROPRIATE DEFINITENESS."  CANTWELL V. CONNECTICUT, 310
U.S. 296; PIERCE V. UNITED STATES, 314 U.S. 306, 311.  THERE MUST BE
ASCERTAINABLE STANDARDS OF GUILT.  MEN OF COMMON INTELLIGENCE CANNOT BE
REQUIRED TO GUESS AT THE MEANING OF THE ENACTMENT N4.  THE VAGUENESS
MAY BE FROM UNCERTAINTY IN REGARD TO PERSONS WITHIN THE SCOPE OF THE
ACT, LANZETTA V. NEW JERSEY, 306 U.S. 451, OR IN REGARD TO THE
APPLICABLE TESTS TO ASCERTAIN GUILT.  FN5 

OTHER STATES THAN NEW YORK HAVE BEEN CONFRONTED WITH SIMILAR PROBLEMS
INVOLVING STATUTORY VAGUENESS IN CONNECTION WITH FREE SPEECH.  IN STATE
V. DIAMOND, 27 NEW MEXICO 477, 202 P. 988, A STATUTE PUNISHING "ANY ACT
OF ANY KIND WHATSOEVER WHICH HAS FOR ITS PURPOSE OR AIM THE DESTRUCTION
OF ORGANIZED GOVERNMENT, FEDERAL, STATE OR MUNICIPAL, OR TO DO OR CAUSE
TO BE DONE ANY ACT WHICH IS ANTAGONISTIC TO OR IN OPPOSITION TO SUCH
ORGANIZED GOVERNMENT, OR INCITE OR ATTEMPT TO INCITE REVOLUTION OR
OPPOSITION TO SUCH ORGANIZED GOVERNMENT" WAS CONSTRUED.  THE COURT
SAID, P. 479: "UNDER ITS TERMS NO DISTINCTION IS MADE BETWEEN THE MAN
WHO ADVOCATES A CHANGE IN THE FORM OF OUR GOVERNMENT BY CONSTITUTIONAL
MEANS, OR ADVOCATES THE ABANDONMENT OF ORGANIZED GOVERNMENT BY PEACEFUL
METHODS, AND THE MAN WHO ADVOCATES THE OVERTHROW OF OUR GOVERNMENT BY
ARMED REVOLUTION, OR OTHER FORM OF FORCE AND VIOLENCE."  LATER IN THE
OPINION THE STATUTE WAS HELD VOID FOR UNCERTAINTY, P. 485: 

"WHERE THE STATUTE USES WORDS OF NO DETERMINATIVE MEANING, OR THE
LANGUAGE IS SO GENERAL AND INDEFINITE AS TO EMBRACE NOT ONLY ACTS
COMMONLY RECOGNIZED AS REPREHENSIBLE, BUT ALSO OTHERS WHICH IT IS
UNREASONABLE TO PRESUME WERE INTENDED TO BE MADE CRIMINAL, IT WILL BE
DECLARED VOID FOR UNCERTAINTY." 

AGAIN IN STATE V. KLAPPROTT, 127 N.J.L. 395, 22 A.2D 877, A STATUTE
WAS HELD INVALID ON AN ATTACK AGAINST ITS CONSTITUTIONALITY UNDER STATE
AND FEDERAL CONSTITUTIONAL PROVISIONS THAT PROTECT AN INDIVIDUAL'S
FREEDOM OF EXPRESSION.  THE STATUTE READ AS FOLLOWS, P. 396: 

"ANY PERSON WHO SHALL, IN THE PRESENCE OF TWO OR MORE PERSONS, IN ANY
LANGUAGE, MAKE OR UTTER ANY SPEECH, STATEMENT OR DECLARATION, WHICH IN
ANY WAY INCITES, COUNSELS, PROMOTES, OR ADVOCATES HATRED, ABUSE,
VIOLENCE OR HOSTILITY AGAINST ANY GROUP OR GROUPS OF PERSONS RESIDING
OR BEING IN THIS STATE BY REASON OF RACE, COLOR, RELIGION OR MANNER OF
WORSHIP, SHALL BE GUILTY OF A MISDEAMEANOR." 

THE COURT SAID, PP. 401-2: 

"IT IS OUR VIEW THAT THE STATUTE, SUPRA, BY PUNITIVE SANCTION, TENDS
TO RESTRICT WHAT ONE MAY SAY LEST BY ONE'S UTTERANCES THERE BE INCITED
OR ADVOCATED HATRED, HOSTILITY OR VIOLENCE AGAINST A GROUP 'BY REASON
OF RACE, COLOR, RELIGION OR MANNER OF WORSHIP.'  BUT ADDITIONALLY AND
LOOKING NOW TO STRICT STATUTORY CONSTRUCTION, IS THE STATUTE DEFINITE,
CLEAR AND PRECISE SO AS TO BE FREE FROM THE CONSTITUTIONAL INFIRMITY OF
THE VAGUE AND INDEFINITE?  THAT THE TERMS 'HATRED,' 'ABUSE,'
'HOSTILITY,' ARE ABSTRACT AND INDEFINITE ADMITS OF NO CONTRADICTION. 
WHEN DO THEY ARISE?  IS IT TO BE LEFT TO A JURY TO CONCLUDE BEYOND
REASONABLE DOUBT WHEN THE EMOTION OF HATRED OR HOSTILITY IS AROUSED IN
THE MIND OF THE LISTENER AS A RESULT OF WHAT A SPEAKER HAS SAID? 
NOTHING IN OUR CRIMINAL LAW CAN BE INVOKED TO JUSTIFY SO WIDE A
DISCRETION.  THE CRIMINAL CODE MUST BE DEFINITE AND INFORMATIVE SO THAT
THERE MAY BE NO DOUBT IN THE MIND OF THE CITIZENRY THAT THE INTERDICTED
ACT OR CONDUCT IS ILLICIT." 

THIS COURT GOES FAR TO UPHOLD STATE STATUTES THAT DEAL WITH OFFENSES,
DIFFICULT TO DEFINE, WHEN THEY ARE NOT ENTWINED WITH LIMITATIONS ON
FREE EXPRESSION.  FN6  WE HAVE THE SAME ATTITUDE TOWARD FEDERAL
STATUTES.  FN7  ONLY A DEFINITE CONVICTION BY A MAJORITY OF THIS COURT
THAT THE CONVICTION VIOLATES THE FOURTEENTH AMENDMENT JUSTIFIES
REVERSAL OF THE COURT PRIMARILY CHARGED WITH RESPONSIBILITY TO PROTECT
PERSONS FROM CONVICTION UNDER A VAGUE STATE STATUTE. 

THE IMPOSSIBILITY OF DEFINING THE PRECISE LINE BETWEEN PERMISSIBLE
UNCERTAINTY IN STATUTES CAUSED BY DESCRIBING CRIMES BY WORDS WELL
UNDERSTOOD THROUGH LONG USE IN THE CRIMINAL LAW - OBSCENE, LEWD,
LASCIVIOUS, FILTHY, INDECENT OR DISGUSTING - AND THE UNCONSTITUTIONAL
VAGUENESS THAT LEAVES A PERSON UNCERTAIN AS TO THE KIND OF PROHIBITED
CONDUCT - MASSING STORIES TO INCITE CRIME - HAS RESULTED IN THREE
ARGUMENTS OF THIS CASE IN THIS COURT.  THE LEGISLATIVE BODIES IN
DRAFTSMANSHIP OBVIOUSLY HAVE THE SAME DIFFICULTY AS DO THE JUDICIAL IN
INTERPRETATION.  NEVERTHELESS DESPITE THE DIFFICULTIES, COURTS MUST DO
THEIR BEST TO DETERMINE WHETHER OR NOT THE VAGUENESS IS OF SUCH A
CHARACTER "THAT MEN OF COMMON INTELLIGENCE MUST NECESSARILY GUESS AT
ITS MEANING."  CONNALLY V. GENERAL CONSTR.  CO., 269 U.S. 385, 391. 
THE ENTIRE TEXT OF THE STATUTE OR THE SUBJECTS DEALT WITH MAY FURNISH
AN ADEQUATE STANDARD N8.  THE PRESENT CASE AS TO A VAGUE STATUTE
ABRIDGING FREE SPEECH INVOLVES THE CIRCULATION OF ONLY VULGAR
MAGAZINES.  THE NEXT MAY CALL FOR DECISION AS TO FREE EXPRESSION OF
POLITICAL VIEWS IN THE LIGHT OF A STATUTE INTENDED TO PUNISH SUBVERSIVE
ACTIVITIES. 

THE SUBSECTION OF THE NEW YORK PENAL LAW, AS NOW INTERPRETED BY THE
COURT OF APPEALS, PROHIBITS DISTRIBUTION OF A MAGAZINE PRINCIPALLY MADE
UP OF CRIMINAL NEWS OR STORIES OF DEEDS OF BLOODSHED OR LUST, SO MASSED
AS TO BECOME VEHICLES FOR INCITING VIOLENT AND DEPRAVED CRIMES AGAINST
THE PERSON.  BUT EVEN CONSIDERING THE GLOSS PUT UPON THE LITERAL
MEANING BY THE COURT OF APPEALS' RESTRICTION OF THE STATUTE TO
COLLECTIONS OF STORIES "SO MASSED AS TO BECOME VEHICLES FOR INCITING
VIOLENT AND DEPRAVED CRIMES AGAINST THE PERSON  ...  NOT NECESSARILY
...  SEXUAL PASSION," WE FIND THE SPECIFICATION OF PUBLICATIONS,
PROHIBITED FROM DISTRIBUTION, TOO UNCERTAIN AND INDEFINITE TO JUSTIFY
THE CONVICTION OF THIS PETITIONER.  EVEN THOUGH ALL DETECTIVE TALES AND
TREATISES ON CRIMINOLOGY ARE NOT FORBIDDEN, AND THOUGH PUBLICATIONS
MADE UP OF CRIMINAL DEEDS NOT CHARACTERIZED BY BLOODSHED OR LUST ARE
OMITTED FROM THE INTERPRETATION OF THE COURT OF APPEALS, WE THINK FAIR
USE OF COLLECTIONS OF PICTURES AND STORIES WOULD BE INTERDICTED BECAUSE
OF THE UTTER IMPOSSIBILITY OF THE ACTOR OR THE TRIER TO KNOW WHERE THIS
NEW STANDARD OF GUILT WOULD DRAW THE LINE BETWEEN THE ALLOWABLE AND THE
FORBIDDEN PUBLICATIONS.  NO INTENT OR PURPOSE IS REQUIRED - NO
INDECENCY OR OBSCENITY IN ANY SENSE HERETOFORE KNOWN TO THE LAW.  "SO
MASSED AS TO INCITE TO CRIME" CAN BECOME MEANINGFUL ONLY BY CONCRETE
INSTANCES.  THIS ONE EXAMPLE IS NOT ENOUGH.  THE CLAUSE PROPOSES TO
PUNISH THE PRINTING AND CIRCULATION OF PUBLICATIONS THAT COURTS OR
JURIES MAY THINK INFLUENCE GENERALLY PERSONS TO COMMIT CRIMES OF
VIOLENCE AGAINST THE PERSON.  NO CONSPIRACY TO COMMIT A CRIME IS
REQUIRED.  SEE MUSSER V. UTAH, 333 U.S. 95.  IT IS NOT AN EFFECTIVE
NOTICE OF NEW CRIME.  THE CLAUSE HAS NO TECHNICAL OR COMMON LAW
MEANING.  NOR CAN LIGHT AS TO THE MEANING BE GAINED FROM THE SECTION AS
A WHOLE OR THE ARTICLE OF THE PENAL LAW UNDER WHICH IT APPEARS.  AS
SAID IN THE COHEN GROCERY COMPANY CASE, SUPRA, P. 89: 

"IT LEAVES OPEN, THEREFORE, THE WIDEST CONCEIVABLE INQUIRY, THE SCOPE
OF WHICH NO ONE CAN FORESEE AND THE RESULT OF WHICH NO ONE CAN
FORESHADOW OR ADEQUATELY GUARD AGAINST." 

THE STATUTE AS CONSTRUED BY THE COURT OF APPEALS DOES NOT LIMIT
PUNISHMENT TO THE INDECENT AND OBSCENE, AS FORMERLY UNDERSTOOD.  WHEN
STORIES OF DEEDS OF BLOODSHED, SUCH AS MANY IN THE ACCUSED MAGAZINES,
ARE MASSED SO AS TO INCITE TO VIOLENT CRIMES, THE STATUTE IS VIOLATED. 
IT DOES NOT SEEM TO US THAT AN HONEST DISTRIBUTOR OF PUBLICATIONS COULD
KNOW WHEN HE MIGHT BE HELD TO HAVE IGNORED SUCH A PROHIBITION. 
COLLECTIONS OF TALES OF WAR HORRORS, OTHERWISE UNEXCEPTIONABLE, MIGHT
WELL BE FOUND TO BE "MASSED" SO AS TO BECOME "VEHICLES FOR INCITING
VIOLENT AND DEPRAVED CRIMES."  WHERE A STATUTE IS SO VAGUE AS TO MAKE
CRIMINAL AN INNOCENT ACT, A CONVICTION UNDER IT CANNOT BE SUSTAINED. 
HERNDON V. LOWRY, 301 U.S. 242, 259. 

TO SAY THAT A STATE MAY NOT PUNISH BY SUCH A VAGUE STATUTE CARRIES NO
IMPLICATION THAT IT MAY NOT PUNISH CIRCULATION OF OBJECTIONABLE PRINTED
MATTER, ASSUMING THAT IT IS NOT PROTECTED BY THE PRINCIPLES OF THE
FIRST AMENDMENT, BY THE USE OF APT WORDS TO DESCRIBE THE PROHIBITED
PUBLICATIONS.  SECTION 1141, SUBSECTION 1, QUOTED IN NOTE 2, IS AN
EXAMPLE.  NEITHER THE STATES NOR CONGRESS ARE PREVENTED BY THE
REQUIREMENT OF SPECIFICITY FROM CARRYING OUT THEIR DUTY OF ELIMINATING
EVILS TO WHICH, IN THEIR JUDGMENT, SUCH PUBLICATIONS GIVE RISE. 
REVERSED. 

FN1  THE COUNTS OF THE INFORMATION UPON WHICH APPELLANT WAS CONVICTED
CHARGED, AS THE STATE COURT OPINIONS SHOW, VIOLATION OF SUBSECTION 2 OF
SEC. 1141.  AN EXAMPLE FOLLOWS:

                             "FOURTH COUNT 

"AND I, THE DISTRICT ATTORNEY AFORESAID, BY THIS INFORMATION, FURTHER
ACCUSE THE SAID DEFENDANT OF THE CRIME OF UNLAWFULLY POSSESSING OBSCENE
PRINTS, COMMITTED AS FOLLOWS: 

"THE SAID DEFENDANT, ON THE DAY AND IN THE YEAR AFORESAID, AT THE
CITY AND IN THE COUNTY AFORESAID, WITH INTENT TO SELL, LEND, GIVE AWAY
AND SHOW, UNLAWFULLY DID OFFER FOR SALE AND DISTRIBUTION, AND HAVE IN
HIS POSSESSION WITH INTENT TO SELL, LEND, GIVE AWAY AND SHOW, A CERTAIN
OBSCENE, LEWD, LASCIVIOUS, FILTHY, INDECENT AND DISGUSTING MAGAZINE
ENTITLED 'HEADQUARTERS DETECTIVE, TRUE CASES FROM THE POLICE BLOTTER,
JUNE 1940', THE SAME BEING DEVOTED TO THE PUBLICATION AND PRINCIPALLY
MADE UP OF CRIMINAL NEWS, POLICE REPORTS, AND ACCOUNTS OF CRIMINAL
DEEDS, AND PICTURES AND STORIES OF DEEDS OF BLOODSHED, LUST AND
CRIME." 

FN2  "SEC.  1141.  ...  1.  A PERSON WHO SELLS, LENDS, GIVES AWAY,
DISTRIBUTES OR SHOWS, OR OFFERS TO SELL, LEND, GIVE AWAY, DISTRIBUTE,
OR SHOW, OR HAS IN HIS POSSESSION WITH INTENT TO SELL, LEND, DISTRIBUTE
OR GIVE AWAY, OR TO SHOW, OR ADVERTISES IN ANY MANNER, OR WHO OTHERWISE
OFFERS FOR LOAN, GIFT, SALE OR DISTRIBUTION, ANY OBSCENE, LEWD,
LASCIVIOUS, FILTHY, INDECENT OR DISGUSTING BOOK, MAGAZINE, PAMPHLET,
NEWSPAPER, STORY PAPER, WRITING, PAPER, PICTURE, DRAWING, PHOTOGRAPH,
FIGURE OR IMAGE, OR ANY WRITTEN OR PRINTED MATTER OF AN INDECENT
CHARACTER; ... 

     .       .         .         .         . 

"IS GUILTY OF A MISDEMEANOR,  ...  " 

FN3  CH. 380, NEW YORK LAWS, 1884; CH. 692, NEW YORK LAWS, 1887; CH.
925, NEW YORK LAWS, 1941. 

FN4  CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, 391-92: 

"BUT IT WILL BE ENOUGH FOR PRESENT PURPOSES TO SAY GENERALLY THAT THE
DECISIONS OF THE COURT UPHOLDING STATUTES AS SUFFICIENTLY CERTAIN,
RESTED UPON THE CONCLUSION THAT THEY EMPLOYED WORDS OR PHRASES HAVING A
TECHNICAL OR OTHER SPECIAL MEANING, WELL ENOUGH KNOWN TO ENABLE THOSE
WITHIN THEIR REACH TO CORRECTLY APPLY THEM,  ...  OR A WELL-SETTLED
COMMON LAW MEANING, NOTWITHSTANDING AN ELEMENT OF DEGREE IN THE
DEFINITION AS TO WHICH ESTIMATES MIGHT DIFFER,  ...  OR, AS BROADLY
STATED BY MR. CHIEF JUSTICE WHITE IN UNITED STATES V. COHEN GROCERY
CO., 255 U.S. 81, 92, 'THAT, FOR REASONS FOUND TO RESULT EITHER FROM
THE TEXT OF THE STATUTES INVOLVED OR THE SUBJECTS WITH WHICH THEY
DEALT, A STANDARD OF SOME SORT WAS AFFORDED.'" 

FN5  UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81, 89-93; CHAMPLIN
REFINING CO. V. CORPORATION COMMISSION, 286 U.S. 210, 242; SMITH V.
CAHOON, 283 U.S. 553, 564. 

FN6  OMAECHEVARRIA V. IDAHO, 246 U.S. 343; WATERS-PIERCE OIL CO. V.
TEXAS, 212 U.S. 86. 

FN7  UNITED STATES V. PETRILLO, 332 U.S. 1; GORIN V. UNITED STATES,
312 U.S. 19. 

FN8  HYGRADE PROVISION CO. V. SHERMAN, 266 U.S. 497, 501; MUTUAL FILM
CORP. V. OHIO INDUSTRIAL COMMISSION, 236 U.S. 230, 245-46; SCREWS V.
UNITED STATES, 325 U.S. 91, 94-100. 

MR. JUSTICE FRANKFURTER, JOINED BY MR. JUSTICE JACKSON AND MR.
JUSTICE BURTON, DISSENTING. 

BY TODAY'S DECISION THE COURT STRIKES DOWN AN ENACTMENT THAT HAS BEEN
PART OF THE LAWS OF NEW YORK FOR MORE THAN SIXTY YEARS,  FN1  AND NEW
YORK IS BUT ONE OF TWENTY STATES HAVING SUCH LEGISLATION.  FOUR MORE
STATES HAVE STATUTES OF LIKE TENOR WHICH ARE BROUGHT INTO QUESTION BY
THIS DECISION, BUT VARIATIONS OF NICETY PRECLUDE ONE FROM SAYING THAT
THESE FOUR ENACTMENTS NECESSARILY FALL WITHIN THE CONDEMNATION OF THIS
DECISION.  MOST OF THIS LEGISLATION IS ALSO MORE THAN SIXTY YEARS OLD. 
THE LATEST OF THE STATUTES WHICH CANNOT BE DIFFERENTIATED FROM NEW
YORK'S LAW, THAT OF THE STATE OF WASHINGTON, DATES FROM 1909.  IT
DESERVES ALSO TO BE NOTED THAT THE LEGISLATION WAS JUDICIALLY APPLIED
AND SUSTAINED NEARLY FIFTY YEARS AGO.  SEE STATE V. MCKEE, 73 CONN. 18,
46 A. 409.  NOR IS THIS AN INSTANCE WHERE THE PRESSURE OF PROXIMITY OR
PROPAGANDA LED TO THE ENACTMENT OF THE SAME MEASURE IN A CONCENTRATED
REGION OF STATES.  THE IMPRESSIVENESS OF THE NUMBER OF STATES WHICH
HAVE THIS LAW ON THEIR STATUTE BOOKS IS REINFORCED BY THEIR
DISTRIBUTION THROUGHOUT THE COUNTRY AND THE TIME RANGE OF THE ADOPTION
OF THE MEASURE.  FN2  CF. HUGHES, C.J., IN WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379, 399. 

THESE ARE THE STATUTES THAT FALL BY THIS DECISION:  FN3 

1.  GEN. STAT. CONN. (1930) C. 329, SEC. 6245, DERIVED FROM L. 1885,
C. 47, SEC. 2* . 

2.  ILL. ANN. STAT. (SMITH-HURD) C. 38, SEC. 106, DERIVED FROM ACT OF
JUNE 3, 1889, P. 114, SEC. 1(MINORS). 

3.  IOWA CODE (1946) SEC. 725.8, DERIVED FROM 21 ACTS, GEN. ASSEMBLY,
C. 177, SEC. 4(1886)(MINORS).    4.  GEN. STATS. KANS. (1935) SEC. 21
1102, DERIVED FROM L. 1886, C. 101, SEC. 1. 

5.  KY. REV. STAT. (1946) SEC. 436.110, DERIVED FROM L. 1891-93, C.
182, SEC. 217(1893)(SIMILAR). 

6.  REV. STAT. MAINE (1944) C. 121, SEC. 27, DERIVED FROM ACTS AND
RESOLVES 1885, C. 348, SEC. 1(MINORS). 

7.  ANN. CODE MD. (1939) ART. 27, SEC. 496, DERIVED FROM L. 1894, C.
271, SEC. 2. 

8.  ANN. LAWS MASS. (1933) C. 272, SEC. 30, DERIVED FROM ACTS AND
RESOLVES 1885, C. 305(MINORS). 

9.  MICH. STAT. ANN. (1938) SEC. 28.576, DERIVED FROM L. 1885, NO.
138. 

10. MINN. STAT. (1945) SEC. 617.72, DERIVED FROM L. 1885, C. 268,
SEC. 1(MINORS). 

11.  MO. REV. STAT. (1939) SEC. 4656, DERIVED FROM ACT OF APRIL 2,
1885, P. 146, SEC. 1(MINORS). 

12.  REV. CODE MONT. (1935) SEC. 11134, DERIVED FROM ACT OF MARCH 4,
1891, P. 255, SEC. 1(MINORS). 

13.  REV. STAT. NEB. (1943) SEC. 28-924, DERIVED FROM L. 1887, C.
113, SEC. 4(MINORS). 

14.  N.Y. CONSOL.  L. (1938) PENAL LAW, ART. 106, SEC. 1141(2),
DERIVED FROM L. 1884, C. 380. 

15.  N.D. REV. CODE (1943) SEC. 12-2109, DERIVED FROM L. 1895, C. 84,
SEC. 1(SIMILAR). 

16.  OHIO CODE ANN. (THROCKMORTON, 1940) SEC. 13035, DERIVED FROM 82
SESS. L. 184(1885)(SIMILAR). 

17.  ORE.  COMP.  L. ANN. (1940) SEC. 23-924, DERIVED FROM ACT OF
FEB. 25, 1885, P. 126(SIMILAR). 

18.  PA. STAT. ANN. (1945) TIT. 18, SEC. 4524, DERIVED FROM L. 1887,
P.L. 38, SEC. 2. 

19.  REV. STAT. WASH. (REMINGTON, 1932) SEC. 2459(2), DERIVED FROM L.
1909, C. 249, SEC. 207(2). 

20.  WIS. STAT. (1945) SEC. 351.38(4), DERIVED FROM L. 1901, C. 256. 

*SINCE THIS OPINION WAS FILED, CONN. L. 1935, C. 216, REPEALING THIS
PROVISION, HAS BEEN CALLED TO MY ATTENTION. 

THE FOLLOWING STATUTES ARE SOMEWHAT SIMILAR, BUT MAY NOT NECESSARILY
BE RENDERED UNCONSTITUTIONAL BY THE COURT'S DECISION IN THE INSTANT
CASE: 

1.  COLO. STAT. ANN. (1935) C. 48, SEC. 217, DERIVED FROM ACT OF
APRIL 9, 1885, P. 172, SEC. 1. 

2.  IND. STAT. ANN. (1934) SEC. 2607, DERIVED FROM L. 1895, C. 109. 

3.  S.D. CODE (1939) SEC. 13.1722(4), DERIVED FROM L. 1913, C. 241,
SEC. 4. 

4.  TEX. STAT. (VERNON, 1936), PENAL CODE, ART. 527, DERIVED FROM L.
1897, C. 116. 

THIS BODY OF LAWS REPRESENTS BUT ONE OF THE MANY ATTEMPTS BY
LEGISLATURES TO SOLVE WHAT IS PERHAPS THE MOST PERSISTENT, INTRACTABLE,
ELUSIVE, AND DEMANDING OF ALL PROBLEMS OF SOCIETY - THE PROBLEM OF
CRIME, AND, MORE PARTICULARLY, OF ITS PREVENTION.  BY THIS DECISION THE
COURT INVALIDATES SUCH LEGISLATION OF ALMOST HALF THE STATES OF THE
UNION.  THE DESTRUCTIVENESS OF THE DECISION IS EVEN MORE FAR-REACHING. 
THIS IS NOT ONE OF THOSE SITUATIONS WHERE POWER IS DENIED TO THE STATES
BECAUSE IT BELONGS TO THE NATION.  THESE ENACTMENTS ARE INVALIDATED ON
THE GROUND THAT THEY FALL WITHIN THE PROHIBITIONS OF THE "VAGUE
CONTOURS" OF THE DUE PROCESS CLAUSE.  THE DECISION THUS OPERATES
EQUALLY AS A LIMITATION UPON CONGRESSIONAL AUTHORITY TO DEAL WITH
CRIME, AND, MORE ESPECIALLY, WITH JUVENILE DELINQUENCY.  THESE FAR
REACHING CONSEQUENCES RESULT FROM THE COURT'S BELIEF THAT WHAT NEW
YORK, AMONG A SCORE OF STATES, HAS PROHIBITED, IS SO EMPTY OF MEANING
THAT NO ONE DESIROUS OF OBEYING THE LAW COULD FAIRLY BE AWARE THAT HE
WAS DOING THAT WHICH WAS PROHIBITED. 

FUNDAMENTAL FAIRNESS OF COURSE REQUIRES THAT PEOPLE BE GIVEN NOTICE
OF WHAT TO AVOID.  IF THE PURPOSE OF A STATUTE IS UNDISCLOSED, IF THE
LEGISLATURE'S WILL HAS NOT BEEN REVEALED, IT OFFENDS REASON THAT
PUNISHMENT SHOULD BE METED OUT FOR CONDUCT WHICH AT THE TIME OF ITS
COMMISSION WAS NOT FORBIDDEN TO THE UNDERSTANDING OF THOSE WHO WISHED
TO OBSERVE THE LAW.  THIS REQUIREMENT OF FAIR NOTICE THAT THERE IS A
BOUNDARY OF PROHIBITED CONDUCT NOT TO BE OVERSTEPPED IS INCLUDED IN THE
CONCEPTION OF "DUE PROCESS OF LAW."  THE LEGAL JARGON FOR SUCH FAILURE
TO GIVE FOREWARNING IS TO SAY THAT THE STATUTE IS VOID FOR
"INDEFINITENESS." 

BUT "INDEFINITENESS" IS NOT A QUANTITATIVE CONCEPT.  IT IS NOT EVEN A
TECHNICAL CONCEPT OF DEFINITE COMPONENTS.  IT IS ITSELF AN INDEFINITE
CONCEPT.  THERE IS NO SUCH THING AS "INDEFINITENESS" IN THE ABSTRACT,
BY WHICH THE SUFFICIENCY OF THE REQUIREMENT EXPRESSED BY THE TERM MAY
BE ASCERTAINED.  THE REQUIREMENT IS FAIR NOTICE THAT CONDUCT MAY ENTAIL
PUNISHMENT.  BUT WHETHER NOTICE IS OR IS NOT "FAIR" DEPENDS UPON THE
SUBJECT MATTER TO WHICH IT RELATES.  UNLIKE THE ABSTRACT STUFF OF
MATHEMATICS, OR THE QUANTITATIVELY ASCERTAINABLE ELEMENTS OF MUCH OF
NATURAL SCIENCE, LEGISLATION IS GREATLY CONCERNED WITH THE MULTIFORM
PSYCHOLOGICAL COMPLEXITIES OF INDIVIDUAL AND SOCIAL CONDUCT. 
ACCORDINGLY, THE DEMANDS UPON LEGISLATION, AND ITS RESPONSES, ARE
VARIABLE AND MULTIFORM.  THAT WHICH MAY APPEAR TO BE TOO VAGUE AND EVEN
MEANINGLESS AS TO ONE SUBJECT MATTER MAY BE AS DEFINITE AS ANOTHER
SUBJECT-MATTER OF LEGISLATION PERMITS, IF THE LEGISLATIVE POWER TO DEAL
WITH SUCH A SUBJECT IS NOT TO BE ALTOGETHER DENIED.  THE STATUTE BOOKS
OF EVERY STATE ARE FULL OF INSTANCES OF WHAT MAY LOOK LIKE UNSPECIFIC
DEFINITIONS OF CRIME, OF THE DRAWING OF WIDE CIRCLES OF PROHIBITED
CONDUCT. 

IN THESE MATTERS LEGISLATURES ARE CONFRONTED WITH A DILEMMA.  IF A
LAW IS FRAMED WITH NARROW PARTICULARITY, TOO EASY OPPORTUNITIES ARE
AFFORDED TO NULLIFY THE PURPOSES OF THE LEGISLATION.  IF THE
LEGISLATION IS DRAFTED IN TERMS SO VAGUE THAT NO ASCERTAINABLE LINE IS
DRAWN IN ADVANCE BETWEEN INNOCENT AND CONDEMNED CONDUCT, THE PURPOSE OF
THE LEGISLATION CANNOT BE ENFORCED BECAUSE NO PURPOSE IS DEFINED.  IT
IS NOT MERELY IN THE ENACTMENT OF TAX MEASURES THAT THE TASK OF
RECONCILING THESE EXTREMES - OF AVOIDING THROTTLING PARTICULARITY OR
UNFAIR GENERALITY - IS ONE OF THE MOST DELICATE AND DIFFICULT
CONFRONTING LEGISLATORS.  THE RECONCILIATION OF THESE TWO
CONTRADICTORIES IS NECESSARILY AN EMPIRIC ENTERPRISE LARGELY DEPENDING
ON THE NATURE OF THE PARTICULAR LEGISLATIVE PROBLEM. 

WHAT RISKS DO THE INNOCENT RUN OF BEING CAUGHT IN A NET NOT DESIGNED
FOR THEM?  HOW IMPORTANT IS THE POLICY OF THE LEGISLATION, SO THAT
THOSE WHO REALLY LIKE TO PURSUE INNOCENT CONDUCT ARE NOT LIKELY TO BE
CAUGHT UNAWARE?  HOW EASY IS IT TO BE EXPLICITLY PARTICULAR?  HOW
NECESSARY IS IT TO LEAVE A SOMEWHAT PENUMBRAL MARGIN BUT SUFFICIENTLY
REVEALED BY WHAT IS CONDEMNED TO THOSE WHO DO NOT WANT TO SAIL CLOSE TO
THE SHORE OF QUESTIONABLE CONDUCT?  THESE AND LIKE QUESTIONS CONFRONT
LEGISLATIVE DRAFTSMEN.  ANSWERS TO THESE QUESTIONS ARE NOT TO BE FOUND
IN ANY LEGISLATIVE MANUAL NOR IN THE WORK OF GREAT LEGISLATIVE
DRAFTSMEN.  THEY ARE NOT TO BE FOUND IN THE OPINIONS OF THIS COURT. 
THESE ARE QUESTIONS OF JUDGMENT, PECULIARLY WITHIN THE RESPONSIBILITY
AND THE COMPETENCE OF LEGISLATURES.  THE DISCHARGE OF THAT
RESPONSIBILITY SHOULD NOT BE SET AT NAUGHT BY ABSTRACT NOTIONS ABOUT
"INDEFINITENESS." 

THE ACTION OF THIS COURT TODAY IN INVALIDATING LEGISLATION HAVING THE
SUPPORT OF ALMOST HALF THE STATES OF THE UNION RESTS ESSENTIALLY ON
ABSTRACT NOTIONS ABOUT "INDEFINITENESS."  THE COURT'S OPINION COULD
HAVE BEEN WRITTEN BY ONE WHO HAD NEVER READ THE ISSUES OF "HEADQUARTERS
DETECTIVE" WHICH ARE THE BASIS OF THE PROSECUTION BEFORE US, WHO HAD
NEVER DEEMED THEIR CONTENTS AS RELEVANT TO THE FORM IN WHICH THE NEW
YORK LEGISLATION WAS CAST, HAD NEVER CONSIDERED THE BEARING OF SUCH
"LITERATURE" ON JUVENILE DELINQUENCY, IN THE ALLOWABLE JUDGMENT OF THE
LEGISLATURE.  SUCH ABSTRACTIONS DISREGARD THE CONSIDERATIONS THAT MAY
WELL HAVE MOVED AND JUSTIFIED THE STATE IN NOT BEING MORE EXPLICIT THAN
THESE STATE ENACTMENTS ARE.  ONLY SUCH ABSTRACT NOTIONS WOULD REJECT
THE JUDGMENT OF THE STATES THAT THEY HAVE OUTLAWED WHAT THEY HAVE A
RIGHT TO OUTLAW, IN THE EFFORT TO CURB CRIMES OF LUST AND VIOLENCE, AND
THAT THEY HAVE NOT DONE IT SO RECKLESSLY AS TO OCCASION REAL HAZARD
THAT OTHER PUBLICATIONS WILL THEREBY BE INHIBITED, OR ALSO BE SUBJECTED
TO PROSECUTION. 

THIS BRINGS OUR IMMEDIATE PROBLEM INTO FOCUS.  NO ONE WOULD DENY, I
ASSUME, THAT NEW YORK MAY PUNISH CRIMES OF LUST AND VIOLENCE. 
PRESUMABLY ALSO, IT MAY TAKE APPROPRIATE MEASURES TO LOWER THE CRIME
RATE.  BUT HE MUST BE A BOLD MAN INDEED WHO IS CONFIDENT THAT HE KNOWS
WHAT CAUSES CRIME.  THOSE WHOSE LIVES ARE DEVOTED TO AN UNDERSTANDING
OF THE PROBLEM ARE CERTAIN ONLY THAT THEY ARE UNCERTAIN REGARDING THE
ROLE OF THE VARIOUS ALLEGED "CAUSES" OF CRIME.  BIBLIOGRAPHIES OF
CRIMINOLOGY REVEAL A DEPRESSING VOLUME OF WRITINGS ON THEORIES OF
CAUSATION.  SEE, E.G., KUHLMAN, A GUIDE TO MATERIAL ON CRIME AND
CRIMINAL JUSTICE (1929) ITEM NOS. 292 TO 1211; CULVER, BIBLIOGRAPHY OF
CRIME AND CRIMINAL JUSTICE (1927-1931) ITEM NOS. 877-1475, AND (1932
1937) ITEM NOS. 799-1560.  IS IT TO BE SERIOUSLY QUESTIONED, HOWEVER,
THAT THE STATE OF NEW YORK, OR THE CONGRESS OF THE UNITED STATES, MAY
MAKE INCITEMENT TO CRIME ITSELF AN OFFENSE?  HE TOO WOULD INDEED BE A
BOLD MAN WHO DENIED THAT INCITEMENT MAY BE CAUSED BY THE WRITTEN WORD
NO LESS THAN BY THE SPOKEN.  IF "THE FOURTEENTH AMENDMENT DOES NOT
ENACT MR. HERBERT SPENCER'S SOCIAL STATICS," (HOLMES, J., DISSENTING IN
LOCHNER V. NEW YORK, 198 U.S. 45, 75), NEITHER DOES IT ENACT THE
PSYCHOLOGICAL DOGMAS OF THE SPENCERIAN ERA.  THE PAINFUL EXPERIENCE
WHICH RESULTED FROM CONFUSING ECONOMIC DOGMAS WITH CONSTITUTIONAL
EDICTS OUGHT NOT TO BE REPEATED BY FINDING CONSTITUTIONAL BARRIERS TO A
STATE'S POLICY REGARDING CRIME, BECAUSE IT MAY RUN COUNTER TO OUR
INEXPERT PSYCHOLOGICAL ASSUMPTIONS OR OFFEND OUR PRESUPPOSITIONS
REGARDING INCITEMENTS TO CRIME IN RELATION TO THE CURTAILMENT OF
UTTERANCE.  THIS COURT IS NOT READY, I ASSUME, TO PRONOUNCE ON
CAUSATIVE FACTORS OF MENTAL DISTURBANCE AND THEIR RELATION TO CRIME. 
WITHOUT FORMALLY PROFESSING TO DO SO, IT MAY ACTUALLY DO SO BY
INVALIDATING LEGISLATION DEALING WITH THESE PROBLEMS AS TOO
"INDEFINITE." 

NOT TO MAKE THE MAGAZINES WITH WHICH THIS CASE IS CONCERNED PART OF
THE COURT'S OPINION IS TO PLAY "HAMLET" WITHOUT HAMLET.  BUT THE COURT
SUFFICIENTLY SUMMARIZES ONE ASPECT OF WHAT THE STATE OF NEW YORK HERE
CONDEMNED WHEN IT SAYS "WE CAN SEE NOTHING OF ANY POSSIBLE VALUE TO
SOCIETY IN THESE MAGAZINES."  FROM WHICH IT JUMPS TO THE CONCLUSION
THAT, NEVERTHELESS, "THEY ARE AS MUCH ENTITLED TO THE PROTECTION OF
FREE SPEECH AS THE BEST OF LITERATURE."  WHOLLY NEUTRAL FUTILITIES, OF
COURSE, COME UNDER THE PROTECTION OF FREE SPEECH AS FULLY AS DO KEATS'
POEMS OR DONNE'S SERMONS.  BUT TO SAY THAT THESE MAGAZINES HAVE
"NOTHING OF ANY POSSIBLE VALUE TO SOCIETY" IS ONLY HALF THE TRUTH. 
THIS MERELY DENIES THEM GOODNESS.  IT DISREGARDS THEIR MISCHIEF.  AS A
RESULT OF APPROPRIATE JUDICIAL DETERMINATION, THESE MAGAZINES WERE
FOUND TO COME WITHIN THE PROHIBITION OF THE LAW AGAINST INCITING
"VIOLENT AND DEPRAVED CRIMES AGAINST THE PERSON," AND THE DEFENDANT WAS
CONVICTED BECAUSE HE EXPOSED FOR SALE SUCH MATERIALS.  THE ESSENCE OF
THE COURT'S DECISION IS THAT IT GIVES PUBLICATIONS WHICH HAVE "NOTHING
OF ANY POSSIBLE VALUE TO SOCIETY" CONSTITUTIONAL PROTECTION BUT DENIES
TO THE STATES THE POWER TO PREVENT THE GRAVE EVILS TO WHICH, IN THEIR
RATIONAL JUDGMENT, SUCH PUBLICATIONS GIVE RISE.  THE LEGISLATURES OF
NEW YORK AND THE OTHER STATES WERE CONCERNED WITH THESE EVILS AND NOT
WITH NEUTRAL ABSTRACTIONS OF HARMLESSNESS.  NOR WAS THE NEW YORK COURT
OF APPEALS MERELY RESTING, AS IT MIGHT HAVE DONE, ON A DEEP-SEATED
CONVICTION AS TO THE EXISTENCE OF AN EVIL AND AS TO THE APPROPRIATE
MEANS FOR CHECKING IT.  THAT COURT DREW ON ITS EXPERIENCE, AS REVEALED
BY "MANY RECENT RECORDS" OF CRIMINAL CONVICTIONS BEFORE IT, FOR ITS
UNDERSTANDING OF THE PRACTICAL CONCRETE REASONS THAT LED THE
LEGISLATURES OF A SCORE OF STATES TO PASS THE ENACTMENTS NOW HERE
STRUCK DOWN. 

THE NEW YORK COURT OF APPEALS THUS SPOKE OUT OF EXTENSIVE KNOWLEDGE
REGARDING INCITEMENTS TO CRIMES OF VIOLENCE.  IN SUCH MATTERS, LOCAL
EXPERIENCE, AS THIS COURT HAS SAID AGAIN AND AGAIN, SHOULD CARRY THE
GREATEST WEIGHT AGAINST OUR DENYING A STATE AUTHORITY TO ADJUST ITS
LEGISLATION TO LOCAL NEEDS.  BUT NEW YORK IS NOT PECULIAR IN CONCLUDING
THAT "COLLECTIONS OF PICTURES OR STORIES OF CRIMINAL DEEDS OF BLOODSHED
OR LUST UNQUESTIONABLY CAN BE SO MASSED AS TO BECOME VEHICLES FOR
INCITING VIOLENT AND DEPRAVED CRIMES AGAINST THE PERSON."  294 N.Y. AT
550.  A RECENT MURDER CASE BEFORE THE HIGH COURT OF AUSTRALIA SHEDS
LIGHT ON THE CONSIDERATIONS WHICH MAY WELL HAVE INDUCED LEGISLATION
SUCH AS THAT NOW BEFORE US, AND ON THE BASIS OF WHICH THE NEW YORK
COURT OF APPEALS SUSTAINED ITS VALIDITY.  THE MURDER WAS COMMITTED BY A
LAD WHO HAD JUST TURNED SEVENTEEN YEARS OF AGE, AND THE VICTIM WAS THE
DRIVER OF A TAXICAB.  I QUOTE THE FOLLOWING FROM THE OPINION OF MR.
JUSTICE DIXON:  "IN HIS EVIDENCE ON THE VOIR DIRE GRAHAM (A FRIEND OF
THE DEFENDANT AND APPARENTLY A VERY RELIABLE WITNESS) SAID THAT HE KNEW
BOYD SINCLAIR (THE MURDERER) AND HIS MOODS VERY WELL AND THAT HE JUST
LEFT HIM; THAT BOYD HAD ON A NUMBER OF OCCASIONS OUTLINED PLANS FOR
EMBARKING ON A LIFE OF CRIME, PLANS BASED MAINLY ON MAGAZINE THRILLERS
WHICH HE WAS READING AT THE TIME.  THEY INCLUDED THE OBTAINING OF A
MOTOR CAR AND AN AUTOMATIC GUN."  SINCLAIR V. THE KING, 73 COMM. L.R.
316, 330.    "MAGAZINE THRILLERS" HARDLY CHARACTERIZES WHAT NEW YORK
HAS OUTLAWED.  NEW YORK DOES NOT LAY HOLD OF PUBLICATIONS MERELY
BECAUSE THEY ARE "DEVOTED TO AND PRINCIPALLY MADE UP OF CRIMINAL NEWS
OR POLICE REPORTS OR ACCOUNTS OF CRIMINAL DEEDS, REGARDLESS OF THE
MANNER OF TREATMENT."  SO THE COURT OF APPEALS HAS AUTHORITATIVELY
INFORMED US.  294 N.Y. AT 549.  THE AIM OF THE PUBLICATION MUST BE
INCITATION TO "VIOLENT AND DEPRAVED CRIMES AGAINST THE PERSON" BY SO
MASSING "PICTURES AND STORIES OF CRIMINAL DEEDS OF BLOODSHED OR LUST"
AS TO ENCOURAGE LIKE DEEDS IN OTHERS.  IT WOULD BE SHEER DOGMATISM IN A
FIELD NOT WITHIN THE PROFESSIONAL COMPETENCE OF JUDGES TO DENY TO THE
NEW YORK LEGISLATURE THE RIGHT TO BELIEVE THAT THE INTENT OF THE TYPE
OF PUBLICATIONS WHICH IT HAS PROSCRIBED IS TO CATER TO MORBID AND
IMMATURE MINDS - WHETHER CHRONOLOGICALLY OR PERMANENTLY IMMATURE.  IT
WOULD BE SHEER DOGMATISM TO DENY THAT IN SOME INSTANCES, AS IN THE CASE
OF YOUNG BOYD SINCLAIR, DEEPLY EMBEDDED, UNCONSCIOUS IMPULSES MAY BE
DISCHARGED INTO DESTRUCTIVE AND OFTEN FATAL ACTION. 

IF LEGISLATION LIKE THAT OF NEW YORK "HAS BEEN ENACTED UPON A BELIEF
OF EVILS THAT IS NOT ARBITRARY WE CANNOT MEASURE THEIR EXTENT AGAINST
THE ESTIMATE OF THE LEGISLATURE."  TANNER V. LITTLE, 240 U.S. 369,
385.  THE COURT FAILS TO GIVE ENOUGH FORCE TO THE INFLUENCE OF THE
EVILS WITH WHICH THE NEW YORK LEGISLATURE WAS CONCERNED "UPON CONDUCT
AND HABIT, NOT ENOUGH TO THEIR INSIDIOUS POTENTIALITIES."  RAST V. VAN
DEMAN & LEWIS CO., 240 U.S. 342, 364.  THE OTHER DAY WE INDICATED THAT,
IN ORDER TO SUPPORT ITS CONSTITUTIONALITY, LEGISLATION NEED NOT EMPLOY
THE OLD PRACTICE OF PREAMBLES, NOR BE ACCOMPANIED BY A MEMORANDUM OF
EXPLANATION SETTING FORTH THE REASONS FOR THE ENACTMENT.  SEE WOODS V.
CLOYD W. MILLER CO., 333 U.S. 138, 144.  ACCORDINGLY, THE NEW YORK
STATUTE, WHEN CHALLENGED FOR WANT OF DUE PROCESS ON THE SCORE OF
"INDEFINITENESS," MUST BE CONSIDERED BY US AS THOUGH THE LEGISLATURE
HAD THUS SPELLED OUT ITS CONVICTIONS AND BELIEFS FOR ITS ENACTMENT: 

WHEREAS, WE BELIEVE THAT THE DESTRUCTIVE AND ADVENTUROUS
POTENTIALITIES OF BOYS AND ADOLESCENTS, AND OF ADULTS OF WEAK CHARACTER
OR THOSE LEADING A DRAB EXISTENCE ARE OFTEN STIMULATED BY COLLECTIONS
OF PICTURES AND STORIES OF CRIMINAL DEEDS OF BLOODSHED OR LUST SO
MASSED AS TO INCITE TO VIOLENT AND DEPRAVED CRIMES AGAINST THE PERSON;
AND 

WHEREAS, WE BELIEVE THAT SUCH JUVENILES AND OTHER SUSCEPTIBLE
CHARACTERS DO IN FACT COMMIT SUCH CRIMES AT LEAST PARTLY BECAUSE
INCITED TO DO SO BY SUCH PUBLICATIONS, THE PURPOSE OF WHICH IS TO
EXPLOIT SUCH SUSCEPTIBLE CHARACTERS; AND 

WHEREAS, SUCH BELIEF, EVEN THOUGH NOT CAPABLE OF STATISTICAL
DEMONSTRATION, IS SUPPORTED BY OUR EXPERIENCE AS WELL AS BY THE
OPINIONS OF SOME SPECIALISTS QUALIFIED TO EXPRESS OPINIONS REGARDING
CRIMINAL PSYCHOLOGY AND NOT DISPROVED BY OTHERS; AND 

WHEREAS, IN ANY EVENT THERE IS NOTHING OF POSSIBLE VALUE TO SOCIETY
IN SUCH PUBLICATIONS, SO THAT THERE IS NO GAIN TO THE STATE, WHETHER IN
EDIFICATION OR ENLIGHTENMENT OR AMUSEMENT OR GOOD OF ANY KIND; AND 

WHEREAS, THE POSSIBILITY OF HARM BY RESTRICTING FREE UTTERANCE
THROUGH HARMLESS PUBLICATIONS IS TOO REMOTE AND TOO NEGLIGIBLE A
CONSEQUENCE OF DEALING WITH THE EVIL PUBLICATIONS WITH WHICH WE ARE
HERE CONCERNED; 

BE IT THEREFORE ENACTED THAT - 

UNLESS WE CAN SAY THAT SUCH BELIEFS ARE INTRINSICALLY NOT REASONABLY
ENTERTAINABLE BY A LEGISLATURE, OR THAT THE RECORD DISPROVES THEM, OR
THAT FACTS OF WHICH WE MUST TAKE JUDICIAL NOTICE PRECLUDE THE
LEGISLATURE FROM ENTERTAINING SUCH VIEWS, WE MUST ASSUME THAT THE
LEGISLATURE WAS DEALING WITH A REAL PROBLEM TOUCHING THE COMMISSION OF
CRIME AND NOT WITH FANCIFUL EVILS, AND THAT THE MEASURE WAS ADAPTED TO
THE SERIOUS EVILS TO WHICH IT WAS ADDRESSED.  THE VALIDITY OF SUCH
LEGISLATIVE BELIEFS OR THEIR IMPORTANCE OUGHT NOT TO BE REJECTED OUT OF
HAND. 

SURELY THIS COURT IS NOT PREPARED TO SAY THAT NEW YORK CANNOT
PROHIBIT TRAFFIC IN PUBLICATIONS EXPLOITING "CRIMINAL DEEDS OF
BLOODSHED OR LUST" SO "AS TO BECOME VEHICLES FOR INCITING VIOLENT AND
DEPRAVED CRIMES AGAINST THE PERSON."  LAWS HAVE HERE BEEN SUSTAINED
OUTLAWING UTTERANCE FAR LESS CONFINED.  A WASHINGTON STATUTE, DIRECTED
AGAINST PRINTED MATTER TENDING TO ENCOURAGE AND ADVOCATE DISRESPECT FOR
LAW, WAS JUDGED AND FOUND NOT WANTING ON THESE BROAD LINES: 

"WE UNDERSTAND THE STATE COURT BY IMPLICATION AT LEAST TO HAVE READ
THE STATUTE AS CONFINED TO ENCOURAGING AN ACTUAL BREACH OF LAW. 
THEREFORE THE ARGUMENT THAT THIS ACT IS BOTH AN UNJUSTIFIABLE
RESTRICTION OF LIBERTY AND TOO VAGUE FOR A CRIMINAL LAW MUST FAIL.  IT
DOES NOT APPEAR AND IS NOT LIKELY THAT THE STATUTE WILL BE CONSTRUED TO
PREVENT PUBLICATIONS MERELY BECAUSE THEY TEND TO PRODUCE UNFAVORABLE
OPINIONS OF A PARTICULAR STATUTE OR OF LAW IN GENERAL.  IN THIS PRESENT
CASE THE DISRESPECT FOR LAW THAT WAS ENCOURAGED WAS DISREGARD OF IT -
AN OVERT BREACH AND TECHNICALLY CRIMINAL ACT.  IT WOULD BE IN ACCORD
WITH THE USAGES OF ENGLISH TO INTERPRET DISRESPECT AS MANIFESTED
DISRESPECT, AS ACTIVE DISREGARD GOING BEYOND THE LINE DRAWN BY THE
LAW.  THAT IS ALL THAT HAS HAPPENED AS YET, AND WE SEE NO REASON TO
BELIEVE THAT THE STATUTE WILL BE STRETCHED BEYOND THAT POINT. 

"IF THE STATUTE SHOULD BE CONSTRUED AS GOING NO FARTHER THAN IT IS
NECESSARY TO GO IN ORDER TO BRING THE DEFENDANT WITHIN IT, THERE IS NO
TROUBLE WITH IT FOR WANT OF DEFINITENESS."  FOX V. WASHINGTON, 236 U.S.
273, 277. 

IN SHORT, THIS COURT RESPECTED THE POLICY OF A STATE BY RECOGNIZING
THE PRACTICAL APPLICATION WHICH THE STATE COURT GAVE TO THE STATUTE IN
THE CASE BEFORE IT.  THIS COURT REJECTED CONSTITUTIONAL INVALIDITY
BASED ON A REMOTE POSSIBILITY THAT THE LANGUAGE OF THE STATUTE,
ABSTRACTLY CONSIDERED, MIGHT BE APPLIED WITH UNBRIDLED LOOSENESS. 

SINCE CONGRESS AND THE STATES MAY TAKE MEASURES AGAINST "VIOLENT AND
DEPRAVED CRIMES," CAN IT BE CLAIMED THAT "DUE PROCESS OF LAW" BARS
MEASURES AGAINST INCITEMENT TO SUCH CRIMES?  BUT IF THEY HAVE POWER TO
DEAL WITH INCITEMENT, CONGRESS AND THE STATES MUST BE ALLOWED THE
EFFECTIVE MEANS FOR TRANSLATING THEIR POLICY INTO LAW.  NO DOUBT SUCH A
LAW PRESENTS DIFFICULTIES IN DRAFTSMANSHIP WHERE PUBLICATIONS ARE THE
INSTRUMENTS OF INCITEMENT.  THE PROBLEM IS TO AVOID CONDEMNATION SO
UNBOUNDED THAT NEITHER THE TEXT OF THE STATUTE NOR ITS SUBJECT MATTER
AFFORDS "A STANDARD OF SOME SORT" (UNITED STATES V. COHEN GROCERY CO.,
255 U.S. 81, 92).  LEGISLATION MUST PUT PEOPLE ON NOTICE AS TO THE KIND
OF CONDUCT FROM WHICH TO REFRAIN.  LEGISLATION MUST ALSO AVOID SO TIGHT
A PHRASING AS TO LEAVE THE AREA FOR EVASION AMPLER THAN THAT WHICH IS
CONDEMNED.  HOW TO ESCAPE, ON THE ONE HAND, HAVING A LAW RENDERED
FUTILE BECAUSE NO STANDARD IS AFFORDED BY WHICH CONDUCT IS TO BE
JUDGED, AND, ON THE OTHER, A LAW SO PARTICULARIZED AS TO DEFEAT ITSELF
THROUGH THE OPPORTUNITIES IT AFFORDS FOR EVASION, INVOLVES AN EXERCISE
OF JUDGMENT WHICH IS AT THE HEART OF THE LEGISLATIVE PROCESS.  IT CALLS
FOR THE ACCOMMODATION OF DELICATE FACTORS.  BUT THIS ACCOMMODATION IS
FOR THE LEGISLATURE TO MAKE AND FOR US TO RESPECT, WHEN IT CONCERNS A
SUBJECT SO CLEARLY WITHIN THE SCOPE OF THE POLICE POWER AS THE CONTROL
OF CRIME.  HERE WE ARE ASKED TO DECLARE VOID THE LAW WHICH EXPRESSES
THE BALANCE SO STRUCK BY THE LEGISLATURE, ON THE GROUND THAT THE
LEGISLATURE HAS NOT EXPRESSED ITS POLICY CLEARLY ENOUGH.  THAT IS WHAT
IT GETS DOWN TO. 

WHAT WERE THE ALTERNATIVES OPEN TO THE NEW YORK LEGISLATURE?  IT
COULD OF COURSE CONCLUDE THAT PUBLICATIONS SUCH AS THOSE BEFORE US
COULD NOT "BECOME VEHICLES FOR INCITING VIOLENT AND DEPRAVED CRIMES." 
BUT SURELY NEW YORK WAS ENTITLED TO BELIEVE OTHERWISE.  IT IS NOT FOR
THIS COURT TO IMPOSE ITS BELIEF, EVEN IF ENTERTAINED, THAT NO "MASSING
OF PRINT AND PICTURES" COULD BE FOUND TO BE EFFECTIVE MEANS FOR
INCITING CRIME IN MINDS OPEN TO SUCH STIMULATION.  WHAT GIVES JUDGES
COMPETENCE TO SAY THAT WHILE PRINT AND PICTURES MAY BE CONSTITUTIONALLY
OUTLAWED BECAUSE JUDGES DEEM THEM "OBSCENE," PRINT AND PICTURES WHICH
IN THE JUDGMENT OF HALF THE STATES OF THE UNION OPERATE AS INCITEMENTS
TO CRIME ENJOY A CONSTITUTIONAL PREROGATIVE?  WHEN ON OCCASION THIS
COURT HAS PRESUMED TO ACT AS AN AUTHORITATIVE FACULTY OF CHEMISTRY, THE
RESULT HAS NOT BEEN FORTUNATE.  SEE BURNS BAKING CO. V. BRYAN, 264 U.S.
504, WHERE THIS COURT VENTURED A VIEW OF ITS OWN AS TO WHAT IS
REASONABLE "TOLERANCE" IN BREADMAKING.  CONSIDERING THE EXTENT TO WHICH
THE WHOLE DOMAIN OF PSYCHOLOGICAL INQUIRY HAS ONLY RECENTLY BEEN
TRANSFORMED AND HOW LARGELY THE TRANSFORMATION IS STILL IN A PIONEER
STAGE, I SHOULD SUPPOSE THAT THE COURT WOULD FEEL EVEN LESS CONFIDENCE
IN ITS VIEWS ON PSYCHOLOGICAL ISSUES.  AT ALL EVENTS, IT OUGHT NOT TO
PREFER ITS PSYCHOLOGICAL VIEWS - FOR, AT BOTTOM, JUDGMENT ON
PSYCHOLOGICAL MATTERS UNDERLIES THE LEGAL ISSUE IN THIS CASE - TO THOSE
IMPLICIT IN AN IMPRESSIVE BODY OF ENACTMENTS AND EXPLICITLY GIVEN BY
THE NEW YORK COURT OF APPEALS, OUT OF THE ABUNDANCE OF ITS EXPERIENCE,
AS THE REASON FOR SUSTAINING THE LEGISLATION WHICH THE COURT IS
NULLIFYING. 

BUT WE ARE TOLD THAT NEW YORK HAS NOT EXPRESSED A POLICY, THAT WHAT
LOOKS LIKE A LAW IS NOT A LAW BECAUSE IT IS SO VAGUE AS TO BE
MEANINGLESS.  SUPPOSE THEN THAT THE NEW YORK LEGISLATURE NOW WISHES TO
MEET THE OBJECTION OF THE COURT.  WHAT STANDARD OF DEFINITENESS DOES
THE COURT FURNISH THE NEW YORK LEGISLATURE IN FINDING INDEFINITENESS IN
THE PRESENT LAW?  SHOULD THE NEW YORK LEGISLATURE ENUMERATE BY NAME THE
PUBLICATIONS WHICH IN ITS JUDGMENT ARE "INCITING VIOLENT AND DEPRAVED
CRIMES"?  SHOULD THE NEW YORK LEGISLATURE SPELL OUT IN DETAIL THE
INGREDIENTS OF STORIES OR PICTURES WHICH ACCOMPLISH SUCH "INCITING"? 
WHAT IS THERE IN THE CONDEMNED LAW THAT LEAVES MEN IN THE DARK AS TO
WHAT IS MEANT BY PUBLICATIONS THAT EXPLOIT "CRIMINAL DEEDS OF BLOODSHED
OR LUST" THEREBY "INCITING VIOLENT AND DEPRAVED CRIMES"?  WHAT REAL
RISK DO THE CONAN DOYLES, THE EDGAR ALLEN POES, THE WILLIAM ROUGHEADS,
THE ORDINARY TRIBE OF DETECTIVE STORY WRITERS, THEIR PUBLISHERS, OR
THEIR BOOKSELLERS RUN? 

INSOFAR AS THERE IS UNCERTAINTY, THE UNCERTAINTY DERIVES NOT FROM THE
TERMS OF CONDEMNATION, BUT FROM THE APPLICATION OF A STANDARD OF
CONDUCT TO THE VARYING CIRCUMSTANCES OF DIFFERENT CASES.  THE DUE
PROCESS CLAUSE DOES NOT PRECLUDE SUCH FALLIBILITIES OF JUDGMENT IN THE
ADMINISTRATION OF JUSTICE BY MEN.  OUR PENAL CODES ARE LOADED WITH
PROHIBITIONS OF CONDUCT DEPENDING ON ASCERTAINMENT THROUGH FALLIBLE
JUDGES AND JURIES OF A MAN'S INTENT OR MOTIVE - ON ASCERTAINMENT, THAT
IS, FROM WITHOUT OF A MAN'S INNER THOUGHTS, FEELINGS AND PURPOSES.  OF
COURSE A MAN RUNS THE RISK OF HAVING A JURY OF HIS PEERS MISJUDGE HIM. 
MR. JUSTICE HOLMES HAS GIVEN THE CONCLUSIVE ANSWER TO THE SUGGESTION
THAT THE DUE PROCESS CLAUSE PROTECTS AGAINST SUCH A HAZARD:  "THE LAW
IS FULL OF INSTANCES WHERE A MAN'S FATE DEPENDS ON HIS ESTIMATING
RIGHTLY, THAT IS, AS THE JURY SUBSEQUENTLY ESTIMATES IT, SOME MATTER OF
DEGREE.  IF HIS JUDGMENT IS WRONG, NOT ONLY MAY HE INCUR A FINE OR A
SHORT IMPRISONMENT, AS HERE; HE MAY INCUR THE PENALTY OF DEATH."  NASH
V. UNITED STATES, 229 U.S. 373, 377.  TO WHICH IT IS COUNTERED THAT
SUCH UNCERTAINTY NOT IN THE STANDARD BUT IN ITS APPLICATION IS NOT
OBJECTIONABLE IN LEGISLATION HAVING A LONG HISTORY, BUT IS INADMISSIBLE
AS TO MORE RECENT LAWS.  IS THIS NOT ANOTHER WAY OF SAYING THAT WHEN
NEW CIRCUMSTANCES OR NEW INSIGHTS LEAD TO NEW LEGISLATION THE DUE
PROCESS CLAUSE DENIES TO LEGISLATURES THE POWER TO FRAME LEGISLATION
WITH SUCH REGARD FOR THE SUBJECT MATTER AS LEGISLATURES HAD IN THE
PAST?  WHEN NEITHER THE CONSTITUTION NOR LEGISLATION HAS FORMULATED
LEGAL PRINCIPLES FOR COURTS, AND THEY MUST PRONOUNCE THEM, THEY FIND IT
IMPOSSIBLE TO IMPOSE UPON THEMSELVES SUCH A DUTY OF DEFINITENESS AS
THIS DECISION EXACTS FROM LEGISLATURES. 

THE COURT HAS BEEN LED INTO ERROR, IF I MAY RESPECTFULLY SUGGEST, BY
CONFUSING WANT OF CERTAINTY AS TO THE OUTCOME OF DIFFERENT PROSECUTIONS
FOR SIMILAR CONDUCT, WITH WANT OF DEFINITENESS IN WHAT THE LAW
PROHIBITS.  BUT DIVERSITY IN RESULT FOR SIMILAR CONDUCT IN DIFFERENT
TRIALS UNDER THE SAME STATUTE IS AN UNAVOIDABLE FEATURE OF CRIMINAL
JUSTICE.  SO LONG AS THESE DIVERSITIES ARE NOT DESIGNED CONSEQUENCES
BUT DUE MERELY TO HUMAN FALLIBILITY, THEY DO NOT DEPRIVE PERSONS OF DUE
PROCESS OF LAW. 

IN CONSIDERING WHETHER NEW YORK HAS STRUCK AN ALLOWABLE BALANCE
BETWEEN ITS RIGHT TO LEGISLATE IN A FIELD THAT IS SO CLOSELY RELATED TO
THE BASIC FUNCTION OF GOVERNMENT, AND THE DUTY TO PROTECT THE INNOCENT
FROM BEING PUNISHED FOR CROSSING THE LINE OF WRONGDOING WITHOUT
AWARENESS, IT IS RELEVANT TO NOTE THAT THIS LEGISLATION HAS BEEN UPHELD
AS PUTTING LAW-ABIDING PEOPLE ON SUFFICIENT NOTICE, BY A COURT THAT HAS
BEEN ASTUTELY ALERT TO THE HAZARDS OF VAGUELY PHRASED PENAL LAWS AND
ZEALOUSLY PROTECTIVE OF INDIVIDUAL RIGHTS AGAINST "INDEFINITENESS." 
SEE, E.G., PEOPLE V. PHYFE, 136 N.Y. 554, 32 N.E. 978; PEOPLE V.
BRIGGS, 193 N.Y. 457, 86 N.E. 522; PEOPLE V. SHAKUN, 251 N.Y. 107, 167
N.E. 187; PEOPLE V. GROGAN, 260 N.Y. 138, 183 N.E. 273.  THE
CIRCUMSTANCES OF THIS CASE MAKE IT PARTICULARLY RELEVANT TO REMIND,
EVEN AGAINST A CONFIDENT JUDGMENT OF THE INVALIDITY OF LEGISLATION ON
THE VAGUE GROUND OF "INDEFINITENESS," THAT CERTITUDE IS NOT THE TEST OF
CERTAINTY.  IF MEN MAY REASONABLY DIFFER WHETHER THE STATE HAS GIVEN
SUFFICIENT NOTICE THAT IT IS OUTLAWING THE EXPLOITATION OF CRIMINAL
POTENTIALITIES, THAT IN ITSELF OUGHT TO BE SUFFICIENT, ACCORDING TO THE
REPEATED PRONOUNCEMENTS OF THIS COURT, TO LEAD US TO ABSTAIN FROM
DENYING POWER TO THE STATES.  AND IT DESERVES TO BE REPEATED THAT THE
COURT IS NOT DENYING POWER TO THE STATES IN ORDER TO LEAVE IT TO THE
NATION.  IT IS DENYING POWER TO BOTH.  BY THIS DECISION CONGRESS IS
DENIED POWER, AS PART OF ITS EFFORT TO GRAPPLE WITH THE PROBLEMS OF
JUVENILE DELINQUENCY IN WASHINGTON, TO PROHIBIT WHAT TWENTY STATES HAVE
SEEN FIT TO OUTLAW.  MOREOVER, A DECISION LIKE THIS HAS A DESTRUCTIVE
MOMENTUM MUCH BEYOND THE STATUTES OF NEW YORK AND OF THE OTHER STATES
IMMEDIATELY INVOLVED.  SUCH JUDICIAL NULLIFICATION CHECKS RELATED
LEGISLATION WHICH THE STATES MIGHT DEEM HIGHLY DESIRABLE AS A MATTER OF
POLICY, AND THIS COURT MIGHT NOT FIND UNCONSTITUTIONAL.    ALMOST BY
HIS VERY LAST WORD ON THIS COURT, AS BY HIS FIRST, MR. JUSTICE HOLMES
ADMONISHED AGAINST EMPLOYING "DUE PROCESS OF LAW" TO STRIKE DOWN
ENACTMENTS WHICH, THOUGH SUPPORTED ON GROUNDS THAT MAY NOT COMMEND
THEMSELVES TO JUDGES, CAN HARDLY BE DEEMED OFFENSIVE TO REASON ITSELF. 
IT IS NOT MERELY IN THE DOMAIN OF ECONOMICS THAT THE LEGISLATIVE
JUDGMENT SHOULD NOT BE SUBTLY SUPPLANTED BY THE JUDICIAL JUDGMENT.  "I
CANNOT BELIEVE THAT THE AMENDMENT WAS INTENDED TO GIVE US CARTE BLANCHE
TO EMBODY OUR ECONOMIC OR MORAL BELIEFS IN ITS PROHIBITIONS."  SO WROTE
MR. JUSTICE HOLMES IN SUMMING UP HIS PROTEST FOR NEARLY THIRTY YEARS
AGAINST USING THE FOURTEENTH AMENDMENT TO CUT DOWN THE CONSTITUTIONAL
RIGHTS OF THE STATES.  BALDWIN V. MISSOURI, 281 U.S. 586,
595(DISSENTING). 

INDEED, MR. JUSTICE HOLMES IS A GOOD GUIDE IN DECIDING THIS CASE.  IN
THREE OPINIONS IN WHICH, SPEAKING FOR THE COURT, HE DEALT WITH THE
PROBLEM OF "INDEFINITENESS" IN RELATION TO THE REQUIREMENT OF DUE
PROCESS, HE INDICATED THE DIRECTIONS TO BE FOLLOWED AND THE CRITERIA TO
BE APPLIED.  PURSUIT OF THOSE DIRECTIONS AND DUE REGARD FOR THE
CRITERIA REQUIRE THAT WE HOLD THAT THE NEW YORK LEGISLATURE HAS NOT
OFFENDED THE LIMITATIONS WHICH THE DUE PROCESS CLAUSE HAS PLACED UPON
THE POWER OF STATES TO COUNTERACT AVOIDABLE INCITEMENTS TO VIOLENT AND
DEPRAVED CRIMES. 

REFERENCE HAS ALREADY BEEN MADE TO THE FIRST OF THE TRILOGY, NASH V.
UNITED STATES, SUPRA. THERE THE COURT REPELLED THE OBJECTION THAT THE
SHERMAN LAW "WAS SO VAGUE AS TO BE INOPERATIVE ON ITS CRIMINAL SIDE." 
THE OPINION RESTED LARGELY ON A CRITICAL ANALYSIS OF THE REQUIREMENT OF
"DEFINITENESS" IN CRIMINAL STATUTES TO BE DRAWN FROM THE DUE PROCESS
CLAUSE.  I HAVE ALREADY QUOTED THE ADMONISHING GENERALIZATION THAT "THE
LAW IS FULL OF INSTANCES WHERE A MAN'S FATE DEPENDS ON HIS ESTIMATING
RIGHTLY, THAT IS, AS THE JURY SUBSEQUENTLY ESTIMATES IT, SOME MATTER OF
DEGREE."  229 U.S. AT 377.  INASMUCH AS "THE COMMON LAW AS TO RESTRAINT
OF TRADE" WAS "TAKEN UP" BY THE SHERMAN LAW, THE OPINION IN THE NASH
CASE ALSO DREW SUPPORT FROM THE SUGGESTION THAT LANGUAGE IN A CRIMINAL
STATUTE WHICH MIGHT OTHERWISE APPEAR INDEFINITE MAY DERIVE DEFINITENESS
FROM PAST USAGE.  HOW MUCH DEFINITENESS "THE COMMON LAW OF RESTRAINT OF
TRADE" HAS IMPARTED TO "THE RULE OF REASON," WHICH IS THE GUIDING
CONSIDERATION IN APPLYING THE SHERMAN LAW, MAY BE GATHERED FROM THE
FACT THAT SINCE THE NASH CASE THIS COURT HAS BEEN SUBSTANTIALLY DIVIDED
IN AT LEAST A DOZEN CASES IN DETERMINING WHETHER A PARTICULAR SITUATION
FELL WITHIN THE UNDEFINED LIMITS OF THE SHERMAN LAW.  FN4  THE COURT'S
OPINION IN THIS CASE INVOKES THIS DOCTRINE OF "PERMISSIBLE UNCERTAINTY"
IN CRIMINAL STATUTES AS TO WORDS THAT HAVE HAD LONG USE IN THE CRIMINAL
LAW, AND ASSUMES THAT "LONG USE" GIVES ASSURANCE OF CLEAR MEANING.  I
DO NOT BELIEVE THAT THE LAW REPORTS PERMIT ONE TO SAY THAT STATUTES
CONDEMNING "RESTRAINT OF TRADE" OR "OBSCENITY" ARE MUCH MORE
UNEQUIVOCAL GUIDES TO CONDUCT THAN THIS STATUTE FURNISHES, NOR DO THEY
CAST LESS RISK OF "ESTIMATING RIGHTLY" WHAT JUDGES AND JURIES WILL
DECIDE THAN DOES THIS LEGISLATION. 

THE SECOND OF THIS SERIES OF CASES, INTERNATIONAL HARVESTER CO. V.
KENTUCKY, 234 U.S. 216, LIKEWISE CONCERNED ANTI-TRUST LEGISLATION.  BUT
THAT CASE BROUGHT BEFORE THE COURT A STATUTE QUITE DIFFERENT FROM THE
SHERMAN LAW.  HOWEVER INDEFINITE THE TERMS OF THE LATTER, WHEREBY "IT
THROWS UPON MEN THE RISK OF RIGHTLY ESTIMATING A MATTER OF DEGREE," IT
IS POSSIBLE BY DUE CARE TO KEEP TO THE LINE OF SAFETY.  BUT THE
KENTUCKY STATUTE WAS SUCH THAT NO AMOUNT OF CARE WOULD GIVE SAFETY.  TO
COMPEL MEN, WROTE MR. JUSTICE HOLMES "TO GUESS ON PERIL OF INDICTMENT
WHAT THE COMMUNITY WOULD HAVE GIVEN FOR THEM (COMMODITIES) IF THE
CONTINUALLY CHANGING CONDITIONS WERE OTHER THAN THEY ARE, TO AN
UNCERTAIN EXTENT; TO DIVINE PROPHETICALLY WHAT THE REACTION OF ONLY
PARTIALLY DETERMINATE FACTS WOULD BE UPON THE IMAGINATIONS AND DESIRES
OF PURCHASERS, IS TO EXACT GIFTS THAT MANKIND DOES NOT POSSESS."  234
U.S. AT 223-224.  THE VAST DIFFERENCE BETWEEN THIS KENTUCKY STATUTE AND
THE NEW YORK LAW, SO FAR AS FOREWARNING GOES, NEEDS NO LABORING. 

THE TEACHING OF THE NASH AND THE HARVESTER CASES IS THAT IT IS NOT
VIOLATIVE OF DUE PROCESS OF LAW FOR A LEGISLATURE IN FRAMING ITS
CRIMINAL LAW TO CAST UPON THE PUBLIC THE DUTY OF CARE AND EVEN OF
CAUTION, PROVIDED THAT THERE IS SUFFICIENT WARNING TO ONE BENT ON
OBEDIENCE THAT HE COMES NEAR THE PROSCRIBED AREA.  IN HIS LAST OPINION
ON THIS SUBJECT, MR. JUSTICE HOLMES APPLIED THIS TEACHING ON BEHALF OF
A UNANIMOUS COURT, UNITED STATES V. WURZBACH, 280 U.S. 396, 399.  THE
CASE SUSTAINED THE VALIDITY OF THE FEDERAL CORRUPT PRACTICES ACT.  WHAT
HE WROTE IS TOO RELEVANT TO THE MATTER IN HAND NOT TO BE FULLY QUOTED: 

"IT IS ARGUED AT SOME LENGTH THAT THE STATUTE, IF EXTENDED BEYOND THE
POLITICAL PURPOSES UNDER THE CONTROL OF CONGRESS, IS TOO VAGUE TO BE
VALID.  THE OBJECTION TO UNCERTAINTY CONCERNING THE PERSONS EMBRACED
NEED NOT TROUBLE US NOW.  THERE IS NO DOUBT THAT THE WORDS INCLUDE
REPRESENTATIVES, AND IF THERE IS ANY DIFFICULTY, WHICH WE ARE FAR FROM
INTIMATING, IT WILL BE TIME ENOUGH TO CONSIDER IT WHEN RAISED BY
SOMEONE WHOM IT CONCERNS.  THE OTHER OBJECTION IS TO THE MEANING OF
'POLITICAL PURPOSES.'  THIS WOULD BE OPEN EVEN IF WE ACCEPTED THE
LIMITATIONS THAT WOULD MAKE THE LAW SATISFACTORY TO THE RESPONDENT'S
COUNSEL.  BUT WE IMAGINE THAT NO ONE NOT IN SEARCH OF TROUBLE WOULD
FEEL ANY.  WHENEVER THE LAW DRAWS A LINE THERE WILL BE CASES VERY NEAR
EACH OTHER ON OPPOSITE SIDES.  THE PRECISE COURSE OF THE LINE MAY BE
UNCERTAIN, BUT NO ONE CAN COME NEAR IT WITHOUT KNOWING THAT HE DOES SO,
IF HE THINKS, AND IF HE DOES SO IT IS FAMILIAR TO THE CRIMINAL LAW TO
MAKE HIM TAKE THE RISK.  NASH V. UNITED STATES, 229 U.S. 373." 

ONLY A WORD NEEDS TO BE SAID REGARDING LANZETTA V. NEW JERSEY, 306
U.S. 451.  THE CASE INVOLVED A NEW JERSEY STATUTE OF THE TYPE THAT SEEK
TO CONTROL "VAGRANCY."  THESE STATUTES ARE IN A CLASS BY THEMSELVES, IN
VIEW OF THE FAMILIAR ABUSES TO WHICH THEY ARE PUT.  SEE NOTE, 47 COL.
L. REV. 613, 625.  DEFINITENESS IS DESIGNEDLY AVOIDED SO AS TO ALLOW
THE NET TO BE CAST AT LARGE, TO ENABLE MEN TO BE CAUGHT WHO ARE VAGUELY
UNDESIRABLE IN THE EYES OF POLICE AND PROSECUTION, ALTHOUGH NOT
CHARGEABLE WITH ANY PARTICULAR OFFENSE.  IN SHORT, THESE "VAGRANCY
STATUTES" AND LAWS AGAINST "GANGS" ARE NOT FENCED IN BY THE TEXT OF THE
STATUTE OR BY THE SUBJECT MATTER SO AS TO GIVE NOTICE OF CONDUCT TO BE
AVOIDED. 

AND SO I CONCLUDE THAT NEW YORK, IN THE LEGISLATION BEFORE US, HAS
NOT EXCEEDED ITS CONSTITUTIONAL POWER TO CONTROL CRIME.  THE COURT
STRIKES DOWN LAWS THAT FORBID PUBLICATIONS INCITING TO CRIME, AND AS
SUCH NOT WITHIN THE CONSTITUTIONAL IMMUNITY OF FREE SPEECH, BECAUSE IN
EFFECT IT DOES NOT TRUST STATE TRIBUNALS, NOR ULTIMATELY THIS COURT, TO
SAFEGUARD INOFFENSIVE PUBLICATIONS FROM CONDEMNATION UNDER THIS
LEGISLATION.  EVERY LEGISLATIVE LIMITATION UPON UTTERANCE, HOWEVER
VALID, MAY IN A PARTICULAR CASE SERVE AS AN INROAD UPON THE FREEDOM OF
SPEECH WHICH THE CONSTITUTION PROTECTS.  SEE, E.G., CANTWELL V.
CONNECTICUT, 310 U.S. 296, AND MR. JUSTICE HOLMES' DISSENT IN ABRAMS V.
UNITED STATES, 250 U.S. 616, 624.  THE DECISION OF THE COURT IS
CONCERNED SOLELY WITH THE VALIDITY OF THE STATUTE, AND THIS OPINION IS
RESTRICTED TO THAT ISSUE. 

FN1  THE ORIGINAL STATUTE, N.Y.L. 1884, C. 380, HAS TWICE SINCE BEEN
AMENDED IN MINOR DETAILS.  N.Y.L. 1887, C. 692; N.Y.L. 1941, C. 925. 
IN ITS PRESENT FORM, IT READS AS FOLLOWS: 

"SEC. 1141.  OBSCENE PRINTS AND ARTICLES 

"1.  A PERSON  ...  WHO, 

     .         .         .  .         . 

"2.  PRINTS, UTTERS, PUBLISHES, SELLS, LENDS, GIVES AWAY, DISTRIBUTES
OR SHOWS, OR HAS IN HIS POSSESSION WITH INTENT TO SELL, LEND, GIVE
AWAY, DISTRIBUTE OR SHOW, OR OTHERWISE OFFERS FOR SALE, LOAN, GIFT OR
DISTRIBUTION, ANY BOOK, PAMPHLET, MAGAZINE, NEWSPAPER OR OTHER PRINTED
PAPER DEVOTED TO THE PUBLICATION, AND PRINCIPALLY MADE UP OF CRIMINAL
NEWS, POLICE REPORTS, OR ACCOUNTS OF CRIMINAL DEEDS, OR PICTURES, OR
STORIES OF DEEDS OF BLOODSHED, LUST OR CRIME; ... 

     .  .         .         .         . 

"IS GUILTY OF A MISDEMEANOR  ...  " 

THAT THIS LEGISLATION WAS NEITHER A CASUAL ENACTMENT NOR A PASSING
WHIM IS SHOWN BY THE WHOLE COURSE OF ITS HISTORY.  THE ORIGINAL STATUTE
WAS PASSED AS THE RESULT OF A CAMPAIGN BY THE NEW YORK SOCIETY FOR THE
SUPPRESSION OF VICE AND THE NEW YORK SOCIETY FOR THE PREVENTION OF
CRUELTY TO CHILDREN.  SEE 8TH ANN. REP., N.Y. SOC. FOR THE SUPPRESSION
OF VICE (1882) P. 7; 9TH ID. (1883) P. 9; 10TH ID. (1884) P. 8; 11TH
ID. (1885) PP. 7-8.  THE FORMER ORGANIZATION, AT LEAST, HAD SOUGHT
LEGISLATION COVERING MANY MORE TYPES OF LITERATURE AND CONDUCT.  SEE
8TH ID. (1882) PP. 6-9; 9TH ID. (1883) PP. 9-12.  ON THE OTHER HAND, IN
1887, THE LIMITATION OF THE STATUTE TO SALES, ETC., TO CHILDREN WAS
REMOVED.  N.Y.L. 1887, C. 692.  MORE RECENTLY, IT HAS BEEN FOUND
DESIRABLE TO ADD TO THE REMEDIES AVAILABLE TO THE STATE TO COMBAT THIS
TYPE OF LITERATURE.  A 1941 STATUTE CONFERRED JURISDICTION UPON THE
SUPREME COURT, AT THE INSTANCE OF THE CHIEF EXECUTIVE OF THE COMMUNITY,
TO ENJOIN THE SALE OR DISTRIBUTION OF SUCH LITERATURE.  N.Y.L. 1941, C.
925, SEC. 2, N.Y. CODE CRIM. PROC. SEC. 22-A.  (THE ADDITIONAL
CONSTITUTIONAL PROBLEMS THAT MIGHT BE RAISED BY SUCH INJUNCTIONS, CF.
NEAR V. MINNESOTA, 283 U.S. 697, ARE OF COURSE NOT BEFORE US.) 

FN2 WE HAVE NO STATISTICS OR OTHER RELIABLE KNOWLEDGE AS TO THE
INCIDENCE OF VIOLATIONS OF THESE LAWS, NOR AS TO THE EXTENT OF THEIR
ENFORCEMENT.  SUFFICE IT TO SAY THAT THE HIGHEST COURTS OF THREE OF THE
MOST INDUSTRIALIZED STATES - CONNECTICUT, ILLINOIS, AND NEW YORK - HAVE
HAD THIS LEGISLATION BEFORE THEM. 

FN3  THIS ASSUMES A SIMILAR CONSTRUCTION FOR ESSENTIALLY THE SAME
LAWS. 

FN4  SEE, E.G., UNITED STATES V. UNITED SHOE MACHINERY CO., 247 U.S.
32; UNITED STATES V. UNITED STATES STEEL CORP., 251 U.S. 417; UNITED
STATES V. READING CO., 253 U.S. 26; AMERICAN COLUMN & LUMBER CO. V.
UNITED STATES, 257 U.S. 377; MAPLE FLOORING MFRS.  ASSN.  V. UNITED
STATES, 268 U.S. 563; CEMENT MFRS.  PROTECTIVE ASSN. V. UNITED STATES,
268 U.S. 588; UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392;
INTERSTATE CIRCUIT, INC. V. UNITED STATES, 306 U.S. 208; UNITED STATES
V. SOCONY-VACUUM OIL CO., 310 U.S. 150; UNITED STATES V. SOUTH-EASTERN
UNDERWRITERS ASSN., 322 U.S. 533; ASSOCIATED PRESS V. UNITED STATES,
326 U.S. 1; UNITED STATES V. LINE MATERIAL CO., 333 U.S. 287. 
..END :


















CONNECTICUT INS. CO. V. MOORE, 333 U.S. 541 


NO. 337.  ARGUED DECEMBER 19, 1947.  - DECIDED MARCH 29, 1948.  - 297
N.Y. 1, 74 N.E.2D 24, AFFIRMED. 


1.  AS APPLIED TO POLICIES OF INSURANCE ISSUED BY FOREIGN CORPORATIONS
FOR DELIVERY IN NEW YORK ON THE LIVES OF RESIDENTS OF NEW YORK, WHERE
THE INSURED PERSONS CONTINUE TO BE RESIDENTS OF NEW YORK AND THE
BENEFICIARIES ARE RESIDENTS AT THE MATURITIES OF THE POLICIES, ARTICLE
VII OF THE ABANDONED PROPERTY LAW OF NEW YORK, REQUIRING PAYMENT TO THE
STATE OF MONIES HELD OR OWING BY LIFE INSURANCE CORPORATIONS AND
REMAINING UNCLAIMED FOR SEVEN YEARS BY THE PERSONS ENTITLED THERETO,
DOES NOT IMPAIR THE OBLIGATION OF CONTRACTS WITHIN THE MEANING OF ART.
I, SEC. 10 OF THE CONSTITUTION.  PP. 545-548. 

2.  NOR DOES IT DEPRIVE FOREIGN INSURANCE COMPANIES OF THEIR PROPERTY
WITHOUT DUE PROCESS OF LAW CONTRARY TO THE FOURTEENTH AMENDMENT, SINCE
THE RELATIONSHIP BETWEEN NEW YORK AND ITS RESIDENTS WHO ABANDON CLAIMS
AGAINST FOREIGN INSURANCE COMPANIES AND THE RELATIONSHIP BETWEEN NEW
YORK AND FOREIGN INSURANCE COMPANIES QUALIFYING TO DO BUSINESS IN NEW
YORK ARE SUFFICIENTLY CLOSE TO GIVE NEW YORK JURISDICTION.  PP. 548
551. 

3.  THE PROBLEM OF WHAT ANOTHER STATE MAY DO AS TO CUSTODY OF
ABANDONED INSURANCE MONIES OF COMPANIES INCORPORATED THEREIN IS NOT
PRESENTED IN THIS CASE AND IS NOT PASSED UPON.  P. 548. 

4.  DECISION IS RESERVED AS TO INSTANCES WHERE INSURED PERSONS, AFTER
DELIVERY OF THE POLICIES, CEASE TO BE RESIDENTS OF NEW YORK OR WHERE
THE BENEFICIARIES ARE NOT RESIDENTS OF NEW YORK AT THE MATURITIES OF
THE POLICIES.  P. 549. 

5.  A DECISION OF THE HIGHEST COURT OF A STATE SUSTAINING GENERALLY
THE VALIDITY OF A STATE ABANDONED PROPERTY LAW AND HAVING THE EFFECT OF
REQUIRING APPELLANTS TO COMPLY WITH THE STATE LAW, IS REVIEWABLE IN
THIS COURT ON AN APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE WHEN
PRECISE QUESTIONS ARISING UNDER THE FEDERAL CONSTITUTION ARE PRESENTED,
EVEN THOUGH THE DECISION ARISES OUT OF A SUIT FOR A DECLARATORY
JUDGMENT PRESENTING THE QUESTIONS ABSTRACTLY AND NOT OUT OF A CONCRETE
CASE INVOLVING PARTICULAR FUNDS AND FACTS.  PP. 550-551. 

CONNECTICUT MUTUAL LIFE INSURANCE CO. ET AL. V. MOORE, COMPTROLLER OF
THE STATE OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

IN A SUIT FOR A DECLARATORY JUDGMENT, THE SUPREME COURT OF NEW YORK
SUSTAINED (WITH CERTAIN EXCEPTIONS) THE VALIDITY OF ARTICLE VII OF THE
ABANDONED PROPERTY LAW OF NEW YORK, AS APPLIED TO FOREIGN INSURANCE
COMPANIES.  187 MISC. 1004, 65 N.Y.S.2D 143.  THE APPELLATE DIVISION
AFFIRMED.  271 APP. DIV. 1002, 69 N.Y.S.2D 323.  THE COURT OF APPEALS
AFFIRMED WITH MODIFICATION.  297 N.Y. 1, 47 N.E.2D 24.  ON APPEAL TO
THIS COURT, AFFIRMED EXCEPT AS TO ISSUES SPECIFICALLY RESERVED, P.
551. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED IN THIS SUIT TO CONSIDER THE VALIDITY OF THE NEW YORK
ABANDONED PROPERTY LAW AS APPLIED TO POLICIES OF INSURANCE ISSUED FOR
DELIVERY IN NEW YORK ON THE LIVES OF RESIDENTS OF NEW YORK BY COMPANIES
INCORPORATED IN STATES OTHER THAN NEW YORK. 

ARTICLE VII OF THE ABANDONED PROPERTY LAW, HEADED "UNCLAIMED LIFE
INSURANCE FUNDS," WAS ENACTED IN 1943.  IN 1944 THE LAW WAS AMENDED SO
AS TO COVER INSURANCE COMPANIES INCORPORATED OUT OF THE STATE.  FN1
COMPANIES IN THE FOLLOWING THREE CLASSES OF POLICIES ISSUED ON THE
LIVES OF RESIDENTS OF NEW YORK SHALL BE DEEMED ABANDONED PROPERTY:  (1)
MATURED ENDOWMENT POLICIES WHICH HAVE BEEN UNCLAIMED FOR SEVEN YEARS;
(2) POLICIES PAYABLE ON DEATH WHERE THE INSURED, IF LIVING, WOULD HAVE
ATTAINED THE LIMITING AGE UNDER THE MORTALITY TABLE ON WHICH THE
RESERVES ARE BASED (AN AGE VARYING FROM 96 TO 100), AS TO WHICH NO
TRANSACTION HAS OCCURRED FOR SEVEN YEARS; AND (3) POLICIES PAYABLE ON
DEATH IN WHICH THE INSURED HAS DIED AND NO CLAIM BY THE PERSON ENTITLED
THERETO HAS BEEN MADE FOR SEVEN YEARS.  FN2 OTHER SECTIONS OF ART. VII
PROVIDE THAT INSURANCE CORPORATIONS DOING BUSINESS IN NEW YORK SHALL
MAKE AN ANNUAL REPORT OF ABANDONED PROPERTY FALLING WITHIN THE
DEFINITIONS OF SEC. 700, THE LISTS SHALL BE ADVERTISED, AND IF THE
ABANDONED PROPERTY ADVERTISED REMAINS UNCLAIMED, THE AMOUNTS DUE AND
OWING SHALL BE PAID TO THE STATE COMPTROLLER SO AS TO BE IN THE CARE
AND CUSTODY OF THE STATE.  ART. VII, SEC. 703, ART. XIV, SEC. 1402;
STATE FINANCE LAW SEC. 95.  UPON PAYMENT TO THE STATE, THE COMPANIES
ARE DISCHARGED OF ANY OBLIGATION, AND ANY PERSON SUBSEQUENTLY SETTING
UP A CLAIM MUST FILE A CLAIM WITH THE COMPTROLLER.  A PENALTY OF $100 A
DAY IS PROVIDED FOR FAILURE TO FILE THE REQUIRED REPORT.  ART. XIV,
SEC. 1412. 

THE PRESENT SUIT WAS BROUGHT BY NINE INSURANCE COMPANIES,
INCORPORATED IN STATES OTHER THAN NEW YORK, IN THE SUPREME COURT OF NEW
YORK FOR A DECLARATION OF THE INVALIDITY OF THE ABANDONED PROPERTY LAW
OF NEW YORK, AS APPLIED TO THE PLAINTIFFS, AND TO ENJOIN THE STATE
COMPTROLLER AND ALL OTHER PERSONS ACTING UNDER STATE AUTHORITY FROM
TAKING ANY STEPS UNDER THE STATUTE.  THE SUPREME COURT RULED THAT THE
ABANDONED PROPERTY LAW WAS VOID IN SO FAR AS IT APPLIED TO POLICIES OF
LIFE INSURANCE ISSUED FOR DELIVERY OUTSIDE OF NEW YORK BY FOREIGN LIFE
INSURANCE COMPANIES.  AS NO APPEAL FROM THIS RULING WAS TAKEN BY THE
STATE, IT IS NOT BEFORE US.  THE SUPREME COURT RESERVED TO THE
APPELLANT INSURANCE COMPANIES THE RIGHT TO ASSERT THE INVALIDITY OF THE
ABANDONED PROPERTY LAW OR ANY APPLICATION THEREOF IN SO FAR AS SUCH LAW
OR STATE ACTION THEREUNDER SOUGHT TO DEPRIVE THEM OF ANY DEFENSE
AGAINST ANY CLAIM UNDER ANY LIFE INSURANCE POLICY.  WITH THE ABOVE
EXCEPTIONS, THE SUPREME COURT UPHELD THE LIFE INSURANCE SECTIONS OF THE
ABANDONED PROPERTY LAW AGAINST APPELLANTS' ATTACK.  THE APPELLATE
DIVISION AFFIRMED AND THE COURT OF APPEALS REVERSED THE JUDGMENT OF THE
SUPREME COURT IN SO FAR AS IT RESERVED TO THE COMPANIES FURTHER RIGHT
TO ASSERT DEFENSE AGAINST CLAIMS UNDER THE POLICIES.  THE COURT OF
APPEALS BY ITS INTERPRETATION OF THE NEW YORK STATUTE LEFT OPEN TO THE
INSURANCE COMPANIES ALL DEFENSES EXCEPT THE STATUTE OF LIMITATIONS, NON
COMPLIANCE WITH POLICY PROVISIONS CALLING FOR PROOF OF DEATH OR OF
OTHER DESIGNATED CONTINGENCY AND FAILURE TO SURRENDER A POLICY ON
MAKING A CLAIM.  297 N.Y. 1, 74 N.E.2D 24.  WITH THIS MODIFICATION, IT
AFFIRMED THE TRIAL COURT'S JUDGMENT.  FN3  APPEAL TO THIS COURT WAS
PERFECTED UNDER SEC. 237(A) OF THE JUDICIAL CODE AND PROBABLE
JURISDICTION NOTED ON OCTOBER 20, 1947. 

IN ADDITION TO OBJECTIONS UNDER NEW YORK LAW, APPELLANTS RAISED IN
THEIR COMPLAINT AND HAVE CONSISTENTLY MAINTAINED THAT THE STATUTE
IMPAIRS THE OBLIGATION OF CONTRACT WITHIN THE MEANING OF ART. I, SEC.
10, OF THE CONSTITUTION AND DEPRIVES THEM OF THEIR PROPERTY WITHOUT DUE
PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT.  THEIR ARGUMENT UNDER
THE CONTRACT CLAUSE IS THAT THE STATUTE TRANSFORMS INTO A LIQUIDATED
OBLIGATION AN OBLIGATION WHICH WAS PREVIOUSLY ONLY CONDITIONAL.  THEIR
ARGUMENT UNDER THE DUE PROCESS CLAUSE IS THAT NEW YORK HAS NO POWER TO
SEQUESTER FUNDS OF THESE LIFE INSURANCE COMPANIES TO MEET THE
COMPANIES' OBLIGATIONS ON INSURANCE POLICIES ISSUED ON NEW YORK
RESIDENTS FOR DELIVERY IN NEW YORK. 

I. IN SUPPORT OF THEIR FIRST CONTENTION APPELLANTS NOTE THAT THE
POLICY TERMS PROVIDE THAT THE INSURER SHALL BE UNDER NO OBLIGATION
UNTIL PROOF OF DEATH OR OTHER CONTINGENCY IS SUBMITTED AND THE POLICY
SURRENDERED.  THEY CONTEND THAT IN DISPENSING WITH THESE CONDITIONS THE
STATUTE TRANSFORMS AN OBLIGATION WHICH IS MERELY CONDITIONAL INTO ONE
THAT IS LIQUIDATED.  THEY FURTHER CLAIM THAT UNLESS PROOF OF DEATH OR
OTHER CONTINGENCY IS SUBMITTED, THEY WILL HAVE DIFFICULTY IN
ESTABLISHING OTHER COMPLETE OR PARTIAL DEFENSES, SUCH AS THE FACT THAT
THE INSURED UNDERSTATED HIS AGE IN HIS APPLICATION FOR INSURANCE, THAT
THE INSURED DIED AS A RESULT OF SUICIDE, MILITARY SERVICE, OR AVIATION,
AND THAT THE INSURED WAS NOT LIVING AND IN GOOD HEALTH WHEN THE POLICY
WAS DELIVERED.  WE ASSUME THAT APPELLANTS MAY FIND IT MORE DIFFICULT TO
ESTABLISH OTHER DEFENSES, BUT WE DO NOT REGARD THE STATUTE AS
UNCONSTITUTIONAL BECAUSE OF THESE ENFORCED VARIATIONS FROM THE POLICY
PROVISIONS. 

UNLESS THE STATE IS ALLOWED TO TAKE POSSESSION OF SUMS IN THE HANDS
OF THE COMPANIES CLASSIFIED BY SEC. 700 AS ABANDONED, THE INSURANCE
COMPANIES WOULD RETAIN MONEYS CONTRACTED TO BE PAID ON CONDITION AND
WHICH NORMALLY THEY WOULD HAVE BEEN REQUIRED TO PAY.  WE THINK THAT THE
CLASSIFICATION OF ABANDONED PROPERTY ESTABLISHED BY THE STATUTE
DESCRIBES PROPERTY THAT MAY FAIRLY BE SAID TO BE ABANDONED PROPERTY AND
SUBJECT TO THE CARE AND CUSTODY OF THE STATE AND ULTIMATELY TO
ESCHEAT.  THE FACT THAT CLAIMANTS AGAINST THE COMPANIES WOULD UNDER THE
POLICIES BE REQUIRED TO COMPLY WITH CERTAIN POLICY CONDITIONS DOES NOT
AFFECT OUR CONCLUSION.  THE STATE MAY MORE PROPERLY BE CUSTODIAN AND
BENEFICIARY OF ABANDONED PROPERTY THAN ANY PERSON. 

WE THINK THAT THE STATE HAS THE SAME POWER TO SEIZE ABANDONED LIFE
INSURANCE MONEYS AS ABANDONED BANK DEPOSITS, ANDERSON NATIONAL BANK V.
LUCKETT, 321 U.S. 233; SECURITY BANK V. CALIFORNIA, 263 U.S. 282, AND
ABANDONED DEPOSITS IN A COURT REGISTRY, UNITED STATES V. KLEIN, 303
U.S. 276.  THERE ARE, OF COURSE, DIFFERENCES BETWEEN THE STEPS A
DEPOSITOR MUST TAKE TO WITHDRAW A BANK DEPOSIT AND THOSE THAT A
BENEFICIARY OF A POLICY MUST TAKE TO COLLECT HIS INSURANCE.  EACH,
HOWEVER, MUST MAKE APPROPRIATE REPRESENTATIONS ACCORDING TO THE
REQUIREMENTS OF HIS CONTRACT WITH BANK OR INSURANCE COMPANY.  WHEN THE
STATE UNDERTAKES THE PROTECTION OF ABANDONED CLAIMS, IT WOULD BE BEYOND
A REASONABLE REQUIREMENT TO COMPEL THE STATE TO COMPLY WITH CONDITIONS
THAT MAY BE QUITE PROPER AS BETWEEN THE CONTRACTING PARTIES.  THE STATE
IS ACTING AS A CONSERVATOR, NOT AS A PARTY TO A CONTRACT.  ABANDONED
PROPERTY LAW, ART. XIV, SEC. 1404; STATE FINANCE LAW, SEC. 95; ANDERSON
NATIONAL BANK V. LUCKETT, SUPRA, AT 241. 

WE SEE NO CONSTITUTIONAL REASON WHY A STATE MAY NOT PROCEED
ADMINISTRATIVELY, AS HERE, TO TAKE OVER THE CARE OF ABANDONED PROPERTY
RATHER THAN ADOPT A PLAN THROUGH JUDICIAL PROCESS AS IN SECURITY BANK
V. CALIFORNIA, SUPRA.  THERE IS AMPLE PROVISION FOR NOTICE TO
BENEFICIARIES AND FOR ADMINISTRATIVE AND JUDICIAL HEARING OF THEIR
CLAIMS AND PAYMENT OF SAME.  FN4  THERE IS NO POSSIBLE INJURY TO ANY
BENEFICIARY.  THE RIGHT OF APPROPRIATION BY THE STATE OF ABANDONED
PROPERTY HAS EXISTED FOR CENTURIES IN THE COMMON LAW.  SEE ANDERSON
NATIONAL BANK V. LUCKETT, SUPRA, AT 240 AND 251.  WE FIND NO REASON FOR
INVALIDATING THE STATUTORY PLAN UNDER THE CONTRACT CLAUSE. 

II.  NOR DO WE AGREE WITH APPELLANTS' ARGUMENT THAT NEW YORK LACKS
CONSTITUTIONAL POWER TO TAKE OVER UNCLAIMED MONEYS DUE TO ITS RESIDENTS
ON POLICIES ISSUED FOR DELIVERY IN THE STATE BY LIFE INSURANCE
CORPORATIONS CHARTERED OUTSIDE THE STATE.  THE APPELLANTS CLAIM THAT
ONLY THE STATE OF INCORPORATION COULD TAKE THESE ABANDONED MONEYS. 
THEY SAY THAT ONLY ONE STATE MAY TAKE CUSTODY OF A DEBT.  FN5  THE
STATUTORY REFERENCE TO "ANY MONEYS HELD OR OWING" DOES NOT REFER TO ANY
SPECIFIC ASSETS OF AN INSURANCE COMPANY, BUT SIMPLY TO THE OBLIGATION
OF THE LIFE INSURANCE COMPANY TO PAY.  THE PROBLEM OF WHAT ANOTHER
STATE THAN NEW YORK MAY DO IS NOT BEFORE US.  THAT QUESTION IS NOT
PASSED UPON.  TO PREVAIL APPELLEE NEED ONLY SHOW, AS HE DOES AS TO
POLICIES ON RESIDENTS ISSUED FOR DELIVERY IN NEW YORK, THAT THERE MAY
BE ABANDONED MONEYS, OVER WHICH NEW YORK HAS POWER, IN THE HANDS OF
APPELLANTS.  THE QUESTION IS WHETHER THE STATE OF NEW YORK HAS
SUFFICIENT CONTACTS WITH THE TRANSACTIONS HERE IN QUESTION TO JUSTIFY
THE EXERTION OF THE POWER TO SEIZE ABANDONED MONEYS DUE TO ITS
RESIDENTS.  APPELLANTS URGE THAT THE FOLLOWING CONSIDERATIONS SHOULD BE
DETERMINATIVE IN CHOOSING THE STATE OF INCORPORATION AS THE STATE FOR
CONSERVATION OF ABANDONED INDEBTEDNESS, IF SUCH MONEYS ARE TO BE TAKEN
FROM THE POSSESSION OF THE CORPORATIONS.  IT IS POINTED OUT THAT THE
PRESENT RESIDENCE OF MISSING POLICYHOLDERS IS UNKNOWN; THAT WITH OUR
SHIFTING POPULATION RESIDENCE IS A CHANGEABLE FACTOR; THAT AS THE
INSURED CHOSE A FOREIGN CORPORATION AS HIS INSURER, HIS CHOICE SHOULD
BE RESPECTED; THAT MONEYS SHOULD ESCHEAT TO THE SOVEREIGNTY THAT GUARDS
THEM AT THE TIME OF ABANDONMENT.  AS A PRACTICAL MATTER, IT IS URGED
THAT RESTRICTING ESCHEAT OR CONSERVANCY TO THE STATE OF INCORPORATION
AVOIDS CONFLICTS OF JURISDICTION BETWEEN STATES AS TO THE LOCATION OF
ABANDONED PROPERTY AND SIMPLIFIES THE CORPORATIONS' REPORTS BY LIMITING
THEM TO ONE STATE WITH ONE LAW.  ATTENTION IS CALLED TO PRESENTLY
ENACTED STATUTES IN PENNSYLVANIA,  FN6  NEW JERSEY,  FN7  AND
MASSACHUSETTS N8.  NONE OF THESE STATUTES APPLY TO CORPORATIONS
CHARTERED OUTSIDE OF THE RESPECTIVE STATES.  FURTHERMORE, IT IS ARGUED
THAT THE ANALOGOUS BANK DEPOSIT CASES HAVE UPHELD ESCHEAT OR
CONSERVANCY BY THE STATE OF THE BANK'S INCORPORATION.  FN9  FINALLY
RELIANCE IS PLACED ON THE UNDISPUTED FACT THAT THE POLICIES ARE PAYABLE
AT THE OUT-OF-STATE MAIN OFFICES OF THE CORPORATIONS, THE EVIDENCES OF
THEIR INTANGIBLE ASSETS ARE THERE LOCATED AND THERE CLAIMS MUST BE MADE
AND OTHER TRANSACTIONS CARRIED ON. 

THESE ARE REASONS WHICH HAVE NO DOUBT BEEN WEIGHED IN LEGISLATIVE
CONSIDERATION.  WE ARE HERE DEALING WITH A MATTER OF CONSTITUTIONAL
POWER.  POWER TO DEMAND THE CARE AND CUSTODY OF THE MONEYS DUE THESE
BENEFICIARIES IS CLAIMED BY NEW YORK, UNDER ART. VII OF THE ABANDONED
PROPERTY LAW AS CONSTRUED BY ITS COURTS, ONLY WHERE THE POLICIES WERE
ISSUED FOR DELIVERY IN NEW YORK UPON THE LIVES OF PERSONS THEN RESIDENT
IN NEW YORK.  WE SUSTAIN THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS
AS THUS INTERPRETED WITH THESE EXCEPTIONS.  WE DO NOT PASS UPON THE
VALIDITY IN INSTANCES WHERE INSURED PERSONS, AFTER DELIVERY, CEASE TO
BE RESIDENTS OF NEW YORK OR WHERE THE BENEFICIARY IS NOT A RESIDENT OF
NEW YORK AT MATURITY OF THE POLICY.  AS INTERESTS OF OTHER POSSIBLE
PARTIES NOT REPRESENTED HERE MAY BE AFFECTED BY OUR CONCLUSIONS AND AS
NO SPECIFIC INSTANCES OF THOSE TYPES APPEAR IN THE RECORD, WE RESERVE
ANY CONCLUSION AS TO NEW YORK'S POWER IN SUCH SITUATIONS.  THE
APPELLANTS SOUGHT A DECLARATION PURSUANT TO NEW YORK PROCEDURE OF THE
INVALIDITY OF ART. VII OF THE NEW YORK ABANDONED PROPERTY LAW, DIRECTED
AT UNCLAIMED LIFE INSURANCE FUNDS.  THE COURT OF APPEALS REFUSED TO
ACCEPT APPELLANTS' ARGUMENTS FOR INVALIDATION OF THE LAW ON FEDERAL
CONSTITUTIONAL OR ANY OTHER GROUNDS.  THIS DECISION COMPELLED THE
APPELLANTS TO COMPLY WITH ART. VII, EXCEPT AS THEIR DEFENSES WERE SAVED
BY THE OPINION OF THE COURT OF APPEALS, UNLESS THIS COURT REVIEWED THE
FEDERAL CONSTITUTIONAL ISSUES AND DECIDED THEM IN APPELLANTS' FAVOR. 
CONSEQUENTLY A CASE OR CONTROVERSY ARISING FROM A STATUTE INTERPRETED
BY THE STATE COURT IS HERE WITH PRECISE FEDERAL CONSTITUTIONAL
QUESTIONS AS TO POLICIES ISSUED FOR DELIVERY IN NEW YORK UPON THE LIVES
OF PERSONS THEN RESIDENT THEREIN WHERE THE INSURED CONTINUES TO BE A
RESIDENT AND THE BENEFICIARY IS A RESIDENT AT THE MATURITY OF THE
POLICY.  A JUDGMENT ON THAT CLASS OF POLICIES SHOULD BE REVIEWED BY
THIS COURT.  NASHVILLE, C. & ST. L.R. CO. V. WALLACE, 288 U.S. 249,
259; NASHVILLE, C. & ST. L.R. CO. V. WALTERS, 294 U.S. 405.  SEE
ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 459-63.  WE
PASS ONLY UPON NEW YORK'S POWER TO TAKE OVER THE CARE OF ABANDONED
MONEYS UNDER THOSE CIRCUMSTANCES.    THERE HAVE BEEN, OVER THE YEARS, A
CLOSE SUPERVISION AND REGULATION BY STATES OF THE BUSINESS OF INSURING
THE LIVES OF THEIR CITIZENS.  THERE HAS BEEN COMPLETE RECOGNITION OF
THIS RELATIONSHIP.  SEE PRUDENTIAL INSURANCE CO. V. BENJAMIN, 328 U.S.
408.  FN10  NEW YORK HAS PRACTICED SUCH REGULATION.  FN11  FOREIGN
CORPORATIONS MUST OBTAIN STATE AUTHORITY TO DO BUSINESS, SEGREGATE
SECURITIES, SUBMIT TO EXAMINATION AND STATE PROCESS.  THE BUSINESS
ACTIVITIES CONNECTED WITH THE PURCHASE OF INSURANCE BY NEW YORK
RESIDENTS NORMALLY TAKE PLACE IN NEW YORK.  IT IS THE BENEFICIARY OF
THE POLICY, NOT THE INSURER, WHO HAS ABANDONED THE MONEYS.  UNDOUBTEDLY
THE RELATIONSHIP IS VERY CLOSE.  FN12 CERTAINLY THE RELATIONSHIP
BETWEEN NEW YORK AND FOREIGN INSURANCE COMPANIES AS TO POLICIES HERE
UNDER DISCUSSION IS AS CLOSE AS THAT BETWEEN THE COMPANY AND ITS STATE
OF INCORPORATION.  FN13  THE COURT OF APPEALS ON THIS POINT SAID: 

"FOR THE CORE OF THE DEBTOR OBLIGATIONS OF THE PLAINTIFF COMPANIES
WAS CREATED THROUGH ACTS DONE IN THIS STATE UNDER THE PROTECTION OF ITS
LAWS, AND THE TIES THEREBY ESTABLISHED BETWEEN THE COMPANIES AND THE
STATE WERE WITHOUT MORE SUFFICIENT TO VALIDATE THE JURISDICTION HERE
ASSERTED BY THE LEGISLATURE." 

WE AGREE WITH THIS STATEMENT AND HOLD THAT NEW YORK HAD POWER TO TAKE
OVER THESE ABANDONED MONEYS IN THE HANDS OF APPELLANTS. 

THE JUDGMENT OF THE COURT OF APPEALS OF NEW YORK IS AFFIRMED EXCEPT
AS TO ISSUES SPECIFICALLY RESERVED. 

FN1  THE FIRST STATUTE WHICH INCLUDED INSURANCE POLICIES AS ABANDONED
PROPERTY WAS ENACTED IN 1939, CH. 923 OF THE LAWS OF 1939.  THAT
STATUTE APPLIED ONLY TO COMPANIES INCORPORATED IN NEW YORK, BUT COVERED
ALL POLICIES ISSUED BY SUCH COMPANIES.  CHAPTER 602 OF THE LAWS OF 1940
AMENDED THE STATUTE SO AS TO APPLY ONLY TO POLICIES ISSUED ON THE LIVES
OF RESIDENTS OF NEW YORK.  CHAPTER 697 OF THE LAWS OF 1943 REENACTED
THE PRINCIPAL FEATURES OF THE EARLIER STATUTES AS ART. VII, AND CC. 497
AND 498(SEC.  2) OF THE LAWS OF 1944 MADE THE STATUTE APPLICABLE TO
FOREIGN INSURANCE COMPANIES.  CHAPTER 452 OF THE LAWS OF 1946 AMENDED
ART. VII SO AS TO PROVIDE THAT A LIFE INSURANCE COMPANY WHICH HAD PAID
THE PROCEEDS OF A POLICY TO THE STATE COULD SUBSEQUENTLY PAY A SECOND
TIME TO A CLAIMANT AND ACQUIRE THE RIGHTS OF THE CLAIMANT AGAINST THE
COMPTROLLER. 

FN2  "SEC.  700.  UNCLAIMED LIFE INSURANCE CORPORATION MONEYS. 

"1.  THE FOLLOWING UNCLAIMED PROPERTY HELD OR OWING BY LIFE INSURANCE
CORPORATIONS SHALL BE DEEMED ABANDONED PROPERTY: 

"(A)  ANY MONEYS HELD OR OWING BY ANY LIFE INSURANCE CORPORATION
WHICH SHALL HAVE REMAINED UNCLAIMED FOR SEVEN YEARS BY THE PERSON OR
PERSONS APPEARING TO BE ENTITLED THERETO UNDER MATURED LIFE INSURANCE
POLICIES ON THE ENDOWMENT PLAN ISSUED ON THE LIVES OF RESIDENTS OF THIS
STATE. 

"(B)  ANY MONEYS HELD OR OWING BY ANY LIFE INSURANCE CORPORATION
WHICH ARE PAYABLE UNDER OTHER KINDS OF LIFE INSURANCE POLICIES ISSUED
ON THE LIVES OF RESIDENTS OF THIS STATE WHERE THE INSURED, IF LIVING,
WOULD, PRIOR TO THE THIRTY-FIRST DAY OF DECEMBER NEXT PRECEDING THE
REPORT REQUIRED BY SECTION SEVEN HUNDRED ONE, HAVE ATTAINED THE
LIMITING AGE UNDER THE MORTALITY TABLE ON WHICH THE RESERVES ARE BASED,
EXCLUSIVE OF 

"(I)  ANY POLICY WHICH HAS WITHIN SEVEN YEARS BEEN ASSIGNED,
READJUSTED, KEPT IN FORCE BY PAYMENT OF PREMIUM, REINSTATED OR
SUBJECTED TO LOAN, OR 

"(II)  ANY POLICY WITH RESPECT TO WHICH SUCH CORPORATION HAS ON FILE
WRITTEN EVIDENCE RECEIVED WITHIN SEVEN YEARS THAT THE PERSON OR PERSONS
APPARENTLY ENTITLED TO CLAIM THEREUNDER HAVE KNOWLEDGE THEREOF. 

"(C)  ANY MONEYS HELD OR OWING BY ANY LIFE INSURANCE CORPORATION DUE
TO BENEFICIARIES UNDER POLICIES ISSUED ON THE LIVES OF RESIDENTS OF
THIS STATE WHO HAVE DIED, WHICH MONEYS SHALL HAVE REMAINED UNCLAIMED BY
THE PERSON OR PERSONS ENTITLED THERETO FOR SEVEN YEARS. 

"2.  ANY SUCH ABANDONED PROPERTY HELD OR OWING BY A LIFE INSURANCE
CORPORATION TO WHICH THE RIGHT TO RECEIVE THE SAME IS ESTABLISHED TO
THE SATISFACTION OF SUCH CORPORATION SHALL CEASE TO BE DEEMED
ABANDONED." 

FN3  187 MISC. 1004, 65 N.Y.S.2D 143; 271 APP. DIV. 1002, 69 N.Y.S.2D
323; 297 N.Y. 1, 74 N.E.2D 24. 

FN4  ABANDONED PROPERTY LAW, ART. XIV, SEC. 1404: 

"1.  THE CARE AND CUSTODY, SUBJECT ONLY TO THE DUTY OF CONVERSION
PRESCRIBED IN SECTION FOURTEEN HUNDRED TWO OF THIS CHAPTER, OF ALL
ABANDONED PROPERTY HERETOFORE PAID TO THE STATE, EXCEPT 

"(I)  ABANDONED PROPERTY IN INDIVIDUAL AMOUNTS OF LESS THAN ONE
DOLLAR SO PAID PURSUANT TO CHAPTER ONE HUNDRED SEVEN OF THE LAWS OF
NINETEEN HUNDRED FORTY-TWO; AND OF ALL ABANDONED PROPERTY PAID TO THE
STATE COMPTROLLER PURSUANT TO THIS CHAPTER, IS HEREBY ASSUMED FOR THE
BENEFIT OF THOSE ENTITLED TO RECEIVE THE SAME, AND THE STATE SHALL HOLD
ITSELF RESPONSIBLE FOR THE PAYMENT OF ALL CLAIMS ESTABLISHED THERETO
PURSUANT TO LAW, LESS ANY LAWFUL DEDUCTIONS, WHICH CANNOT BE PAID FROM
THE ABANDONED PROPERTY FUND." 

     .         .   .         .         . 

SEE ALSO SECS. 702, 1402, 1406(1)(A) AND (B), AND ANDERSON NATIONAL
BANK V. LUCKETT, SUPRA, AT 242. 

FN5  COMPARE STATE TAX COMMISSION V. ALDRICH, 316 U.S. 174; NORTHWEST
AIRLINES V. MINNESOTA, 322 U.S. 292, 293, 294. 

FN6  PURDON'S PA. STAT., TITLE 27, SECS. 434-437. 

FN7  N.J. REV. STAT. SECS. 17:34-49 - 34-58(CUM.  SUPP., LAWS OF 1945
1947). 

FN8  CH. 455, MASS. ACTS AND RESOLVES (1946). 

FN9  SEE ANDERSON NATIONAL BANK V. LUCKETT, SUPRA; SECURITY BANK V.
CALIFORNIA, SUPRA; IN RE RAPOPORT'S ESTATE, 317 MICH. 291, 26 N.W.2D
777. 

FN10  AN OLD PROVISION MAKES NEW YORK LAW APPLICABLE TO POLICIES
ISSUED FOR DELIVERY IN NEW YORK.  INSURANCE LAW SEC. 143(2). 

FN11  NEW YORK INSURANCE LAW, SECS. 42, 59, 103, 143, 208(5),
216(6). 

FN12  SEE GREENOUGH V. TAX ASSESSORS, 331 U.S. 486; CURRY V.
MCCANLESS, 307 U.S. 357.  COMPARE INTERNATIONAL SHOE CO. V. WASHINGTON,
326 U.S. 310, 320:  "IT IS EVIDENT THAT THESE OPERATIONS ESTABLISH
SUFFICIENT CONTACTS OR TIES WITH THE STATE OF THE FORUM TO MAKE IT
REASONABLE AND JUST, ACCORDING TO OUR TRADITIONAL CONCEPTION OF FAIR
PLAY AND SUBSTANTIAL JUSTICE, TO PERMIT THE STATE TO ENFORCE THE
OBLIGATIONS WHICH APPELLANT HAS INCURRED THERE." 

FN13  SEE NEW ENGLAND MUTUAL LIFE INSURANCE CO. V. WOODWORTH, 111
U.S. 138; EX PARTE SCHOLLENBERGER, 96 U.S. 369, 377; MORGAN V. MUTUAL
BENEFIT LIFE INSURANCE CO., 189 N.Y. 447, 82 N.E. 438. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

MY BROTHER JACKSON'S OPINION, WITH WHICH I SUBSTANTIALLY AGREE,
PERSUADES ME THAT WE SHOULD DECLINE TO EXERCISE JURISDICTION IN THIS
CASE.  THE WISE PRACTICE GOVERNING CONSTITUTIONAL ADJUDICATION REQUIRES
IT.  FOR THIS PROCEEDING POSES MERELY HYPOTHETICAL QUESTIONS, ALL OF
WHICH ARE INTERTWINED AND CONCERN INTERESTS NOT REPRESENTED BEFORE US.
CIRCUMSTANCES NOT MORE COMPELLING, SURELY, THAN THIS RECORD DISCLOSES
LED US IN A SERIES OF RECENT CASES TO AVOID BORROWING TROUBLE BY
DECLINING TO ADJUDICATE PREMATURE CONSTITUTIONAL ISSUES.  ALABAMA STATE
FEDERATION OF LABOR V. MCADORY, 325 U.S. 450; UNITED PUBLIC WORKERS OF
AMERICA V. MITCHELL, 330 U.S. 75; RESCUE ARMY V. MUNICIPAL COURT, 331
U.S. 549. 

IN APPEARANCE THIS IS A SUIT BETWEEN A FEW INSURANCE COMPANIES AND
THE STATE OF NEW YORK.  BUT AT THE HEART OF THE CONTROVERSY ARE THE
CONFLICTING CLAIMS OF SEVERAL STATES IN A HOTCHPOT OF UNDIFFERENTIATED
OBLIGATIONS.  THE PROCEEDS OF "ABANDONED" LIFE INSURANCE POLICIES
CANNOT, I ASSUME, BE SEIZED AS FOR ESCHEAT MORE THAN ONCE.  SINCE THE
RIGHTS AND LIABILITIES GROWING OUT OF SUCH POLICIES ARE, TO A VAST
EXTENT, THE RESULT OF A PROCESS THAT CONCERNS TWO OR MORE STATES, THEIR
INTERESTS MAY COME INTO CONFLICT WHEN, IN EXIGENT SEARCH FOR REVENUE,
THEY INVOKE THE OPPORTUNITIES OF ESCHEAT AGAINST UNCLAIMED PROCEEDS
FROM INSURANCE POLICIES.  I ASSUME MERELY CONFLICTING STATE INTERESTS
AND LAY ASIDE CONSIDERATIONS THAT MAY BE DRAWN FROM THE DECISION IN
UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSOCIATION, 322 U.S. 533. 

IN THE VIGILANT SEARCH FOR NEW SOURCES OF REVENUE, SEVERAL STATES
HAVE ALREADY SOUGHT TO TAP FOR THEIR OWN EXCHEQUERS THE MATURED
OBLIGATIONS OF UNCLAIMED POLICIES.  IT WOULD BE IMPRACTICAL NOT TO
ASSUME THAT OTHER STATES WILL DO LIKEWISE.  ONLY NEW YORK'S CLAIM IS
BEFORE US.  IT IS VITAL TO DEFINE THE PRECISE NATURE OF THIS CLAIM. 
NEW YORK DOES NOT LAY CLAIM TO A PARTICULAR FUND CONSTITUTING THE
PROCEEDS OF ABANDONED MATURED OBLIGATIONS.  THIS LITIGATION, IT IS
CONCEDED, SEEKS TO TEST ABSTRACTLY THE CONSTITUTIONALITY OF THE NEW
YORK STATUTE PROVIDING FOR TURNING OVER TO HER THE AVAILS OF ABANDONED
MATURED INSURANCE POLICIES.  NEW YORK ASKS THAT HER RIGHT TO THE
HOTCHPOT OF UNDIFFERENTIATED OBLIGATIONS BE ACKNOWLEDGED.  OF COURSE
NEW YORK MAY ENABLE ITS COURTS TO PASS ON THE VALIDITY OF A
COMPREHENSIVE STATUTE UNRELATED TO THE ENFORCEMENT OF SPECIFIC CLAIMS
TO SPECIFIC FUNDS THAT CAME INTO EXISTENCE UNDER CIRCUMSTANCES
DIFFERING IN THEIR CONSTITUTIONAL SIGNIFICANCE.  IT DOES NOT FOLLOW,
HOWEVER, THAT WHAT THE NEW YORK COURT OF APPEALS HAS ADJUDICATED WE
MUST REVIEW. 

THE NEW YORK COURT OF APPEALS SUSTAINED THE POWER OF NEW YORK TO
CLAIM ESCHEAT ON ABANDONED INSURANCE MATURITIES FROM FOREIGN INSURANCE
COMPANIES DOING BUSINESS IN NEW YORK ON THE BASIS OF THE INSURED'S
RESIDENCE IN NEW YORK AT THE TIME OF THE DELIVERY OF THE POLICY IN NEW
YORK.  ACCORDING TO THIS VIEW, AS MR. JUSTICE JACKSON POINTS OUT,
CHANGE OF RESIDENCE OF THE INSURED OR OF THE BENEFICIARY LONG BEFORE
MATURITY OF THE POLICY, OR NON-RESIDENCE IN NEW YORK OF A BENEFICIARY,
OTHER THAN THE INSURED, AT ANY TIME, BECOME UTTERLY IMMATERIAL.  THESE
ARE ONLY SOME OF THE FAMILIAR SITUATIONS THAT ARE ENCOMPASSED BY THE
COURT OF APPEALS VALIDATION OF THE NEW YORK STATUTE. 

THIS COURT DOES NOT PURPORT TO AFFIRM ALL THAT IS INCLUDED IN THE NEW
YORK JUDGMENT.  IT IS FAIR, HOWEVER, TO SAY THAT THE COURT'S OPINION
DOES NOT ENUMERATE WHAT POSSIBLE SITUATIONS INCLUDED IN THE JUDGMENT
BELOW IT HAS NOT PASSED UPON.  IT IS EXPLICIT IN PUTTING TO ONE SIDE
THE VALIDITY OF THE NEW YORK STATUTE IN "INSTANCES WHERE INSURED
PERSONS, AFTER DELIVERY, CEASE TO BE RESIDENTS OF NEW YORK OR WHERE THE
BENEFICIARY IS NOT A RESIDENT OF NEW YORK AT MATURITY OF THE POLICY. 
AS INTERESTS OF OTHER POSSIBLE PARTIES NOT REPRESENTED HERE MAY BE
AFFECTED BY OUR CONCLUSIONS AND AS NO SPECIFIC INSTANCES OF THOSE TYPES
APPEAR IN THE RECORD, WE RESERVE ANY CONCLUSION AS TO NEW YORK'S POWER
IN SUCH SITUATIONS."  BUT "NO SPECIFIC INSTANCES" OF ANY TYPE APPEAR IN
THE RECORD.  INDEED, IT MAY BE SAID THAT THE ONLY INSTANCES OF TYPES OF
TRANSACTIONS AS TO WHICH ESCHEAT IS CLAIMED THAT ARE IN THE RECORD ARE
THE TYPES ON WHICH THE OPINION OF THE COURT DECLINES TO PASS.  THE
COMPLAINT SPECIFICALLY REFERS TO THE FREQUENCY WITH WHICH POLICIES ARE
ISSUED UPON THE LIVES OF NEW YORK RESIDENTS FOR NON-NEW YORK
BENEFICIARIES, AS WELL AS THE EXTENT WITH WHICH HOLDERS OF POLICIES
CHANGE THEIR RESIDENCE.  ON THE STATE OF THE PLEADINGS, THESE
ALLEGATIONS MUST BE ACCEPTED AS TRUE.  TO BE SURE, NEW YORK LAYS CLAIM
TO ALL FUNDS REFLECTING THESE SITUATIONS, AND ITS HIGHEST COURT HAS
SUSTAINED THIS GENERALIZED CLAIM.  BUT, AS ALREADY INDICATED, THIS IS
NOT A SUIT FOR ANY SPECIFIC FUND.  FOR ALL WE KNOW THERE ARE NO FUNDS
IN NEW YORK TO WHICH THAT STATE COULD LAY CLAIM EVEN WITHIN THE
CIRCUMSCRIBED AFFIRMANCE BY THIS COURT OF THE NEW YORK JUDGMENT. 

WHATEVER THE SCOPE OF THE COURT'S DECISION, IT IS A HYPOTHETICAL
DECISION.  NEW YORK HAS BEEN SUSTAINED BELOW IN AN ABSTRACT ASSERTION
OF AUTHORITY AGAINST FUNDS NOT CLAIMED NOR DEFINED, EXCEPT
COMPENDIOUSLY DEFINED AS THE RIGHT TO GO AGAINST INSURANCE COMPANIES
DOING BUSINESS IN NEW YORK FOR THE PROCEEDS OF POLICIES DELIVERED IN
NEW YORK UPON THE LIVES OF INSURED THEN RESIDENT IN NEW YORK.  THIS
GENERALIZED DECISION THE COURT REJECTS.  INSTEAD, IT CARVES OUT
DIFFERENT AND LIMITED CLAIMS FOR WHICH NEW YORK MAY GO WITHOUT ANY
INDICATION THAT THERE IS ANYTHING ON WHICH SUCH CLAIMS COULD FEED.  IN
ANY EVENT, SUCH A MUTILATED AFFIRMANCE OF THE DECISION OF THE NEW YORK
COURT OF APPEALS, WITH EVERYTHING ELSE LEFT OPEN, IS BOUND TO HATCH A
BROOD OF FUTURE LITIGATION.  CLAIMS OF THE STATES OF DOMICILE OF THE
INSURING COMPANIES, CLAIMS OF THE STATES OF RESIDENCE OF THE INSURED AT
THE TIME OF MATURITY, CLAIMS OF THE STATES OF RESIDENCE OF
BENEFICIARIES OTHER THAN THE INSURED AT THE TIME OF MATURITY, ARE ALL
PUT TO ONE SIDE HERE AS NOT PRESENTED BY THE RECORD THOUGH THEY ARE AS
MUCH PRESENTED AS WHAT IS DECIDED.  TO REVENUE-EAGER STATES THESE ARE
PRACTICAL SITUATIONS FULL OF POTENTIALITIES.  THIS COURT IS ALL TOO
FAMILIAR WITH THE SPECIAL POSITION OF CONTROL CLAIMED BY A CHARTERING
STATE AND THE SPECIAL POWERS THE DOMICILIARY STATE OF A DECEASED
ASSERTS OVER HIS "INTANGIBLES." 

HOW THE CONFLICTING INTERESTS OF THE STATES SHOULD BE ADJUSTED CALLS
FOR PROPER PRESENTATION BY THE VARIOUS STATES OF THEIR DIFFERENT
CLAIMS.  WORDS MAY SEEK TO RESTRICT A DECISION PURPORTING TO PASS ON A
SMALL FRAGMENT OF WHAT IS IN TRUTH AN ORGANIC COMPLEXITY TO THAT
ISOLATED PART.  BUT SUCH AN EFFORT TO CIRCUMSCRIBE WHAT HAS BEEN
DECIDED IS SELF-DEFEATING.  A DECISION HAS A MOMENTUM OF ITS OWN, AND
IT IS NOTHING NEW THAT LEGAL DOCTRINES HAVE THE FACULTY OF SELF
GENERATING EXTENSION.  WE OUGHT NOT TO DECIDE ANY OF THESE INTERRELATED
ISSUES UNTIL THEY ARE DULY PRESSED HERE BY THE AFFECTED STATES, SO THAT
A MATURE JUDGMENT UPON THIS INTERRELATION MAY BE REACHED.  ALL THE
CONSIDERATIONS OF PREVENTIVE ADJUDICATION - THE AVOIDANCE OF A
TRUNCATED DECISION OF INDETERMINATE SCOPE, WITH THE INEVITABLE DUTY OF
RECONSIDERING IT OR UNCONSCIOUSLY BEING INFLUENCED BY IMPLICIT
OVERTONES OF SUCH A DECISION - REQUIRE THAT DECISION AWAIT THE RIPENING
PROCESS OF A DEFINED CONTEST OVER PARTICULAR FUNDS AS TO WHICH
DIFFERENT STATES MAKE CONCRETE CLAIMS.    THE WAY IS OPEN TO SECURE A
DETERMINATION BY THIS COURT OF THE RIGHTS OF THE DIFFERENT STATES IN
THE VARIANT SITUATIONS PRESENTED BY ABANDONED OBLIGATIONS ON MATURED
INSURANCE POLICIES.  IT IS PRECISELY FOR THE SETTLEMENT OF SUCH
CONTROVERSIES AMONG THE SEVERAL STATES THAT THE CONSTITUTION CONFERRED
ORIGINAL JURISDICTION UPON THIS COURT.  IF FLORIDA, MASSACHUSETTS, NEW
YORK AND TEXAS COULD BRING HERE FOR DETERMINATION THEIR RIGHT TO LEVY A
DEATH TAX IN RESPECT TO A PARTICULAR SUCCESSION, TEXAS V. FLORIDA, 306
U.S. 398, EVEN MORE FITTING IS IT THAT THE CLAIMS OF VARIOUS STATES TO
SEIZE THE MATURED OBLIGATIONS OF ABANDONED INSURANCE POLICIES SHOULD BE
PRESENTED BY THOSE STATES AT THE BAR OF THIS COURT AND BE ADJUDICATED
HERE AFTER FULL REFLECTION ON ALL THESE CLAIMS.  OF COURSE THE
INSURANCE COMPANIES HAVE INTERESTS TO PROTECT AND TO PRESENT.  BUT THE
ESSENTIAL PROBLEM IS THE LEGAL ADJUSTMENT OF THE CONFLICTING INTERESTS
OF DIFFERENT STATES, BECAUSE EACH MAY HAVE SOME RELATION TO
TRANSACTIONS WHICH GIVE RISE TO FUNDS THAT UNDOUBTEDLY ARE SUBJECT TO
ESCHEAT.  UNTIL THAT IS DULY BEFORE US WE SHOULD NOT PECK AT THE
PROBLEM IN AN ABSTRACT, HYPOTHETICAL WAY. 

THE APPEAL SHOULD BE DISMISSED. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
DISSENTING. 

I FIND MYSELF UNABLE TO JOIN THE COURT IN THIS CASE.  I CANNOT AGREE
THAT WE MAY AFFIRM THE JUDGMENT BELOW WITHOUT FACING, OR BY RESERVING
OUR OPINION UPON, THE CONSTITUTIONAL QUESTION INHERENT IN THIS STATUTE
BY WHICH NEW YORK WOULD ESCHEAT UNCLAIMED INSURANCE PROCEEDS NOT
LOCATED EITHER ACTUALLY OR CONSTRUCTIVELY IN NEW YORK AND WHICH ARE THE
PROPERTY OF A BENEFICIARY WHO MAY NEVER HAVE BEEN A RESIDENT OR CITIZEN
OF NEW YORK. 

THIS ACTION IS ONE FOR A DECLARATORY JUDGMENT AS TO THE VALIDITY OF
THE ACT AND WE ARE THEREFORE PASSING ON THE ACT AS AN ENTIRETY AND IN
THE ABSTRACT.  THE CASES OF NON-RESIDENT BENEFICIARIES ARE BEFORE US AS
MUCH AS ANY OTHER CONCRETE CASE.  THE ACT PURPORTS TO ESCHEAT IN EVERY
CASE IN WHICH THE POLICY WAS ISSUED FOR DELIVERY IN NEW YORK AND THE
INSURED WAS THEN A RESIDENT OF THAT STATE.  THE UNCHALLENGED COMPLAINT
ALLEGES THE COMPTROLLER'S INSTRUCTIONS TO BE THAT REMOVAL OF THE
INSURED FROM THE STATE AFTER ISSUANCE OF THE POLICY DOES NOT TAKE A
CASE OUT OF THE ACT.  THE STATUTE, AS WRITTEN AND AS AFFIRMED,
OBVIOUSLY INTENDS TO REACH NONRESIDENT CLAIMANTS AND INSURED PERSONS,
FOR IT PROVIDES FOR BINDING THEM BY PUBLICATION (SEC. 702(2)), AND BY
PUBLICATION WITHIN NEW YORK AT THAT.  MOREOVER, AND MOST IMPORTANTLY,
IN REACHING THE JUDGMENTS WHICH WE AFFIRM, THE OPINION OF THE SPECIAL
TERM OF THE SUPREME COURT, WHILE HOLDING SOME FEATURES OF THE ACT
INVALID, EXPRESSLY CONSIDERED AND UPHELD THESE PROVISIONS OF THE ACT
AND THE COURT OF APPEALS INDICATED NO DISAGREEMENT.  OUR AFFIRMANCE
NECESSARILY SUSTAINS THE WHOLE JUDGMENT BELOW AND THAT SUSTAINS THE ACT
IN THESE PARTICULARS.  IT IS PERHAPS UNFORTUNATE TO ADJUDICATE
CONSTITUTIONALITY IN SUCH A MANNER.  IF WE HAD BEFORE US A CONCRETE
CASE, CONTESTED BY ADVERSARY STATE CLAIMANTS TO THE RIGHT OF ESCHEAT
AND BASED ON A RECORD THAT WOULD SHOW SOME FACTS AS TO RESIDENCE OF
PARTIES TO THE TRANSACTIONS, WE WOULD KNOW BETTER WHAT WE ARE TALKING
ABOUT.  BUT SINCE IN A DECLARATORY JUDGMENT ACTION WE CAN HAVE ONLY
HYPOTHETICAL CASES BEFORE US, I CANNOT IGNORE ONE WHICH CERTAINLY
OCCURS FREQUENTLY AND ONE EMBRACED WITHIN BOTH THE ACT AND THE DECISION
BELOW. 

NEITHER THE ACT NOR THE DECISION BELOW CONTEMPLATES THAT THE RIGHT TO
ESCHEAT IS BASED ON RESIDENCE OF THE OWNER OF THE PROCEEDS AT THE TIME
OF ESCHEAT, OR AT ANY OTHER TIME, BUT RATHER ON THESE TWO FACTS:  (1)
THAT THE POLICY WAS ISSUED FOR DELIVERY IN NEW YORK, AND (2) THAT THE
INSURED WAS THEN A RESIDENT OF NEW YORK.  THUS, THE STATE CLAIMS POWER
TO ESCHEAT WHAT IS DUE A BENEFICIARY SOLELY BECAUSE IT WAS THE
RESIDENCE OF THE INSURED WHEN THE POLICY WAS ISSUED AND IRRESPECTIVE OF
THE NONRESIDENCE AT THAT TIME AND AT ALL TIMES OF THE BENEFICIARY WHOSE
PROPERTY IT TAKES.  THUS, THE ESCHEAT OF ONE MAN'S PROPERTY IS BASED ON
ANOTHER MAN'S ONE-TIME RESIDENCE IN THE STATE.  FURTHER, THE SEIZURE OF
TODAY IS BASED NOT EVEN ON THE ASSURED'S RESIDENCE AT THE TIME THE
POLICY MATURED, BUT ON HIS RESIDENCE AT SOME PRIOR DATE, WHICH, IN VIEW
OF THE LONG-TERM NATURE OF INSURANCE CONTRACTS, MAY HAVE BEEN MANY
YEARS AGO. 

THE EFFECT OF THE COURT'S AFFIRMANCE OF THE JUDGMENT UPHOLDING THIS
STATUTE IS THAT A RESIDENCE BY THE INSURED IN NEW YORK AT THE TIME A
POLICY WAS "ISSUED FOR DELIVERY" THERE SHOWS "SUFFICIENT CONTACTS WITH
THE TRANSACTION," SO THAT THE STATE MAY ESCHEAT PROCEEDS OWNED BY A
BENEFICIARY WHO MAY NEVER HAVE LIVED IN THAT STATE.  EVEN IN THE
ABSTRACT, I FIND THE CONCEPT OF "SUFFICIENT CONTACTS WITH THE
TRANSACTION" TOO VAGUE TO BE HELPFUL IN DEFINING PRACTICAL BOUNDS OF A
STATE'S JURISDICTION OR POWER TO ESCHEAT.  WE ARE GIVEN NO
ENLIGHTENMENT AS TO WHY ANY ONE OR MORE EVENTS IS REGARDED AS
"SUFFICIENT," NOR AS TO WHAT JURISPRUDENTIAL CONTEXT IS TO BE GIVEN TO
THE TERM "CONTACT," WHICH SEEMS TAKEN OVER FROM SOME VERNACULAR OTHER
THAN THAT OF THE LAW.  I CANNOT EVEN TELL HERE WHAT THE COURT THINKS
THE CONTROLLING "TRANSACTION" IS.  IF IT IS ISSUANCE OF THE POLICY THAT
IS THE "CONTACTED" TRANSACTION, IT WOULD SEEM THAT THE STATE WHERE IT
WAS ISSUED, WHERE PREMIUMS WERE PAID, OR WHERE IT WAS ACTUALLY
DELIVERED, WOULD BE MORE CONTROLLING THAN THE PLACE WHERE IT WAS
"ISSUED FOR DELIVERY."  IF IT IS THE MATURING OF THE CLAIM, I SEE LESS
"CONTACT" FROM A SOMETIME AND REMOTE RESIDENCE THAN FROM A LATER ONE,
OR ONE AT THE TIME OF EVENTS WHICH MATURED THE POLICY. 

THE WEAKNESS OF THE COURT'S TEST OF SUFFICIENT CONTACTS WITH THE
"TRANSACTION" IS MORE FULLY REVEALED WHEN WE CONSIDER THAT BY ITS
APPLICATION TODAY OTHER STATES ARE CUT OFF FROM ESCHEATING THE PROCEEDS
(UNLESS THE COMPANY IS SUBJECT TO MULTIPLE ESCHEATS), ALTHOUGH BY THE
SAME TESTS THEY HAVE MANY MORE AND MUCH CLOSER "CONTACTS" WITH SOME
PART OF THE TRANSACTION.  IF WE SAY NEW YORK MAY STEP INTO THE
BENEFICIARY'S SHOES AND COLLECT HIS UNCLAIMED INSURANCE PROCEEDS SOLELY
BECAUSE THE INSURED LIVED IN NEW YORK WHEN THE POLICY ISSUED FOR
DELIVERY THERE, HOW CAN WE DENY THE CLAIM OF ANOTHER STATE TO ESCHEAT
THE SAME FUND WHEN ITS CLAIM IS ASSERTED UNDER ANY ONE OR MORE OF THE
FOLLOWING CIRCUMSTANCES:  (1)  IT IS THE STATE IN WHICH THE INSURED HAS
DIED OR WHERE SOME OTHER CONTINGENCY OCCURRED WHICH BROUGHT THE CLAIM
TO MATURITY.  (2)  IT IS THE STATE IN WHICH THE BENEFICIARY ALWAYS HAS
RESIDED AND WAS LAST KNOWN TO RESIDE.  (3)  IT IS THE STATE OF A PROVED
LATER AND LONGER RESIDENCE OF THE INSURED.  (4)  IT IS THE STATE TO
WHICH BOTH THE INSURED AND THE BENEFICIARY REMOVED AND RESIDED AFTER
THE POLICY WAS TAKEN OUT IN NEW YORK.  (5)  IT IS THE STATE OF ACTUAL
PERMANENT DOMICILE, AS OPPOSED TO MERE RESIDENCE IN NEW YORK, OF THE
INSURED AND THE BENEFICIARY.  (6)  IT IS THE STATE OF ACTUAL DELIVERY
OF THE POLICY, THOUGH IT WAS "ISSUED FOR DELIVERY" IN NEW YORK.  (7)
IT IS THE STATE WHERE THE CLAIM IS PAYABLE AND WHERE FUNDS FOR ITS
DISCHARGE ARE AND AT ALL TIMES HAVE BEEN LOCATED.  CERTAINLY THE
FOREGOING ARE "CONTACTS" AS I WOULD UNDERSTAND THE TERM, AND SOME OF
THEM OR SOME COMBINATION OF THEM SEEM MORE PERSUASIVE OF A RIGHT TO
ESCHEAT THAN THE GROUNDS ON WHICH WE ARE AFFIRMING NEW YORK'S RIGHT TO
DO SO. 

I AM NOT UNMINDFUL OF THE COURT'S PRONOUNCEMENT THAT IT DOES NOT
DECIDE WHAT A STATE OTHER THAN NEW YORK MAY DO AND THAT IT EXCEPTS FROM
ITS APPROVAL "INSTANCES WHERE INSURED PERSONS, AFTER DELIVERY, CEASE TO
BE RESIDENTS OF NEW YORK OR WHERE THE BENEFICIARY IS NOT A RESIDENT OF
NEW YORK AT MATURITY OF THE POLICY."  AS TO THOSE CASES, THE COURT SAYS
IT RESERVES ANY CONCLUSION.  BUT HOW CAN IT RESERVE A CONCLUSION AS TO
WHETHER "CONTACTS" HERE DETERMINED TO BE SUFFICIENT IN THE CASE OF NEW
YORK WILL BE SUFFICIENT IN THE CASE OF ANOTHER STATE?  THE ISSUE OF
"SUFFICIENCY OF CONTACTS" IS SETTLED BY THIS DECISION.  THE PREMISES
THAT ARE BEING APPLIED TODAY LEAD INESCAPABLY TO THE CONCLUSION THAT
OTHER STATES HAVE EQUALLY GOOD GROUNDS (I.E., "SUFFICIENT CONTACTS") TO
ESCHEAT THE SAME CLAIMS.  ARE WE GOING TO REPUDIATE OUR REASONING IN
THIS CASE THE FIRST TIME ANOTHER STATE INVOKES IT IN CONFLICT WITH NEW
YORK, OR WILL WE HOLD THE REASONING IMPECCABLE AND, HENCE, THE COMPANY
SUBJECT TO A DOUBLE OR MULTIPLE LIABILITY TO ESCHEAT?  THE EFFORT TO
REMAIN UNCOMMITTED TO ANY CONCLUSION IS SELF-DELUSIVE WHEN IT IS
ACCOMPANIED, AS IT IS HERE, BY A COMMITMENT AS TO ALL OF THE FACTORS
WHICH SHAPE THE CONCLUSION "RESERVED." 

IT SEEMS TO ME THAT THE CONSTITUTIONAL DOCTRINE WE ARE APPLYING HERE,
IF WE ARE CONSISTENT IN ITS APPLICATION, LEAVES US IN THIS DILEMMA:  IN
SUSTAINING THE BROAD CLAIMS OF NEW YORK, WE EITHER CUT OFF SIMILAR AND
PERHAPS BETTER RIGHTS OF ESCHEAT BY OTHER STATES OR WE RENDER INSURANCE
COMPANIES LIABLE TO TWO OR MORE PAYMENTS OF THEIR SINGLE LIABILITY.  IF
WE IMPALE OURSELVES, AND THE STATE AND INSURANCE COMPANIES ALONG WITH
US, ON EITHER HORN OF THIS DILEMMA, I THINK THE FAULT IS IN OURSELVES,
NOT IN OUR CONSTITUTION. 

FOR THE JURIDICAL BASIS ON WHICH ESCHEAT HAS FROM TIME TO TIME
RESTED, WE NEED GO NO FARTHER THAN THE LAW OF NEW YORK ITSELF AS
EXPOUNDED BY JUDGE CARDOZO.  ESCHEAT SURVIVES ONLY AS AN "INCIDENT OF
SOVEREIGNTY," WHETHER THE SUBJECT OF ESCHEAT IS PERSONAL OR REAL
ESTATE.  MATTER OF PEOPLE (MELROSE AVE.), 234 N.Y. 48, 136 N.E. 235. 
BUT SOVEREIGNTY BY ITSELF MEANS NOTHING; SOVEREIGNTY EXISTS IN RESPECT
OF SOMETHING OR OVER SOMEONE.  THE TWO USUAL EXAMPLES OF ESCHEAT
PROPERLY INCIDENTS OF SOVEREIGNTY ARE: 

FIRST, SOVEREIGNTY IN THE SENSE OF ACTUAL DOMINION OVER THE PROPERTY
ESCHEATED.  THE STATE ON THIS BASIS MAY, OF COURSE, TAKE UNTO ITSELF
LANDS WHICH FAIL OF PRIVATE OWNERS THROUGH WANT OF HEIRS, AND TANGIBLE
PERSONAL PROPERTY LOST OR ABANDONED IN THE STATE.  THE RIGHT TO
APPROPRIATE INTANGIBLE PROPERTY CONSTRUCTIVELY WITHIN THE STATE ALSO
HAS BEEN UPHELD BY THIS COURT ON GROUNDS THAT "THE DEPOSITS ARE DEBTOR
OBLIGATIONS OF THE BANK, INCURRED AND TO BE PERFORMED IN THE STATE
WHERE THE BANK IS LOCATED, AND HENCE ARE SUBJECT TO THE STATE'S
DOMINION."  ANDERSON NATIONAL BANK V. LUCKETT, 321 U.S. 233; SECURITY
BANK V. CALIFORNIA, 263 U.S. 282.  SEE ALSO UNITED STATES V. KLEIN, 303
U.S. 276.  BUT NEW YORK CAN SHOW NEITHER ACTUAL NOR CONSTRUCTIVE
DOMINION OVER THE PROPERTY SOUGHT NOW TO BE ESCHEATED.  THE PROCEEDS TO
BE ESCHEATED ARE HELD BY OUT-OF-THE-STATE INSURANCE COMPANIES AND BY NO
STRETCH OF IMAGINATION ARE THEY WITHIN NEW YORK'S DOMINION.  AND
CERTAINLY RESIDENCE OF THE INSURED AT THE TIME THE POLICY ISSUED CANNOT
GENERATE CONSTRUCTIVE POSSESSION OF EITHER THE BENEFICIARY'S CLAIM OR
THE ACTUAL PROCEEDS AT MATURITY OR AT THE TIME OF ABANDONMENT. 

SECOND, SOVEREIGNTY OVER THE PERSON, AS A RESIDENT OR CITIZEN, WILL
JUSTIFY THE STATE IN STEPPING INTO HIS SHOES AS CLAIMANT OF ABANDONED
PROPERTY.  OUR FEDERAL FORM OF GOVERNMENT PRESUPPOSES A DUAL
ALLEGIANCE.  IN ADDITION TO A GENERAL ALLEGIANCE TO THE UNITED STATES,
EACH PERSON HAS A PARTICULAR ALLEGIANCE TO THE STATE OF WHICH HE IS A
RESIDENT, AND HENCE, UNDER THE FOURTEENTH AMENDMENT, IS A CITIZEN. 
THIS STATUS, WHILE IT LASTS, SUBJECTS HIM AND WHAT IS HIS TO STATE
POWER.  BUT NEW YORK, UNDER THIS STATUTE, DOES NOT RELY ON THIS
RELATIONSHIP TO SUSTAIN THIS ESCHEAT.  IT WOULD STEP INTO THE SHOES OF
BENEFICIARIES LAST KNOWN TO BE CITIZENS OF OTHER STATES AND EVEN IF
THEY WERE SO UNFORTUNATE AS NEVER TO HAVE BEEN IN NEW YORK STATE.  THE
STATE BASES ITS RIGHT TO SEIZE SUCH A NON-RESIDENT'S ASSETS SOLELY ON
THE FACT THAT THE INSURED WAS THERE WHEN THE POLICY ISSUED.  BUT EVEN
IF THE ALLEGIANCE OF THE INSURED WOULD IN SOME CIRCUMSTANCES JUSTIFY
ESCHEAT OF THE BENEFICIARIES' PAYMENTS, HOW CAN IT DO SO AFTER THE
ALLEGIANCE HAS LONG SINCE CEASED?  THE RIGHT OF A CITIZEN TO MIGRATE
FROM ONE STATE OF THE UNION TO ANOTHER, CF. EDWARDS V. CALIFORNIA, 314
U.S. 160, CARRIES WITH IT, OF NECESSITY, THE RIGHT OF EXPATRIATION, A
RIGHT FOR WHICH THIS NATION HAS ALWAYS CONTENDED.  A STATE CANNOT
FASTEN ITS POWER AND WILL UPON A RESIDENT SO THAT IT ADHERES TO HIM FOR
LIFE.  I HAVE NEVER BEFORE HEARD IT DENIED THAT ONE, IF HE MAKES HIS
INTENT SUFFICIENTLY CLEAR, MAY BY MIGRATION BRING TO AN END HIS
ALLEGIANCE TO A STATE AND WITH IT THE STATE'S SOVEREIGNTY OVER HIM. 
BUT NEW YORK'S PLAN REQUIRES US TO SAY NOT ONLY THAT SOVEREIGNTY OVER
AN INSURED REACHES THE PROPERTY OF A THIRD-PARTY BENEFICIARY BUT THAT
SUCH A CONSEQUENCE FOLLOWS BOTH PARTIES FOR LIFE, ALTHOUGH THE INSURED
MAY HAVE DELIBERATELY ACQUIRED A NEW ALLEGIANCE AND BECOME A CITIZEN OF
ANOTHER STATE, AND THE BENEFICIARY MAY NEVER HAVE BEEN IN NEW YORK. 

CONSIDERATION OF THESE CONVENTIONAL AND ESTABLISHED GROUNDS OF
ESCHEAT SHOWS NOT ONLY THAT THEY FAIL TO SUPPORT THE NEW YORK STATUTE
IN THIS CLASS OF CASES, BUT ALSO THAT THEY ESTABLISH A SUPERIOR RIGHT
OF ESCHEAT IN OTHER STATES AS AN INCIDENT OF THEIR SOVEREIGNTY.  OF
COURSE, THE TWO GROUNDS I HAVE MENTIONED MAY BRING TWO STATES INTO
CONFLICT.  INDEED, SUCH A CONFLICT NOW EXISTS.  PENNSYLVANIA,
APPARENTLY RELYING ON THE THEORY OF THE BANK DEPOSIT CASES, UNDERTAKES
TO ESCHEAT ALL UNCLAIMED FUNDS IN THE HANDS OF COMPANIES IT HAS
CHARTERED, EVEN THOUGH THE INSURED MAY HAVE BEEN A RESIDENT OF NEW YORK
WHEN THE POLICY ISSUED, SO THAT NEW YORK WOULD CLAIM THE SAME FUND. 
CAN WE NOW SAY NEW YORK MAY TAKE, WITHOUT SAYING PENNSYLVANIA MUST
GIVE?  DO WE SAY THE COMPANY MUST PAY TWICE?  THIS MAKES PERTINENT THE
QUESTION WHETHER WE SHOULD NOT DECLINE TO DECIDE SUCH ISSUES AS ARE
HERE INVOLVED WHEN THEY ARE PRESENTED ONLY IN THE ABSTRACT BY A
DECLARATORY JUDGMENT ACTION.  SEE ALABAMA STATE FEDERATION OF LABOR V.
MCADORY, 325 U.S. 450, 461.    BUT IF WE ARE TO ENTERTAIN THE CASE, I
THINK WE SHOULD DECIDE IT, NOT BY EXTEMPORIZED GENERALITIES LIKE
"SUFFICIENT CONTACTS WITH THE TRANSACTION," BUT BY RECOGNIZED STANDARDS
HAVING DEFINITE CONNOTATIONS IN THE LAW.  NEW YORK IS NOT THE ONLY
STATE WITH AN INTEREST IN THESE QUESTIONS.  NEW YORK IS MERELY THE SOLE
STATE WHOSE ARGUMENT WE HAVE HEARD.  THE MOBILITY OF OUR POPULATION AND
THE COMPLEXITY OF OUR LIFE CREATE MANY CONFUSIONS IN WHICH THE STATES
MAY PROPERLY LOOK TO US FOR SOME STANDARD BY WHICH THEY MAY KNOW WHAT
AND WHOM TO CLAIM FOR THEIR OWN.  IT SEEMS TO ME THAT WE SHOULD NOT
UNNECESSARILY CONFOUND WHAT AT BEST IS CONFUSION, BY REMOVING THE
LANDMARKS OF STATE JURISDICTION ERECTED BY YEARS OF TRIAL AND ERROR. 
CF. DISSENTING OR CONCURRING OPINION IN DUCKWORTH V. ARKANSAS, 314 U.S.
390; STATE TAX COMMISSION V. ALDRICH, 316 U.S. 174; WILLIAMS V. NORTH
CAROLINA, 317 U.S. 287; GENERAL TRADING COMPANY V. STATE TAX
COMMISSION, 322 U.S. 335; INTERNATIONAL HARVESTER CO. V. WISCONSIN, 322
U.S. 435; NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292; GREENOUGH V.
TAX ASSESSORS, 331 U.S. 486; BOB-LO EXCURSION CO. V. MICHIGAN, 333 U.S.
28; AND OTHERS, PROBABLY, YET TO COME. 

WHILE WE MAY EVADE IT FOR A TIME, THE COMPETITION AND CONFLICT
BETWEEN STATES FOR "ESCHEATS" WILL FORCE US TO SOME LAWYERLIKE
DEFINITION OF STATE POWER OVER THIS SUBJECT.  IT IS NAIVE BEYOND EVEN
REQUIREMENTS OF THE JUDICIAL OFFICE TO ASSUME THAT THIS LATELY MANIFEST
CONCERN OF THE STATES OVER ABANDONED INSURANCE PROCEEDS REFLECTS ONLY
SOLICITUDE FOR THE UNKNOWN CLAIMANTS.  IF IT DID, THE STATES' CLAIMS
MIGHT RECONCILE MORE EASILY.  BUT ESCHEAT OF THESE INTERESTS IS A NEWLY
EXPLOITED, IF NOT NEWLY DISCOVERED, SOURCE OF STATE REVENUE.  ESCHEAT,
OF COURSE, IS NOT TO BE DENIED ON CONSTITUTIONAL GROUNDS MERELY BECAUSE
THE MOTIVE OF THE STATES SAVORS MORE OF THE PUBLICAN THAN OF THE
GUARDIAN.  BUT IT IS RELEVANT TO THE CAUTION AND PRECISION WE SHOULD
USE IN SUSTAINING ONE STATE'S CLAIM, LEST WE BE FORECLOSING OTHER
BETTER-FOUNDED ONES. 

THIS COMPETITION AND CONFLICT BETWEEN STATES ALREADY REQUIRE US, IN
ALL FAIRNESS TO THEM, TO DEFINE THE BASIS ON WHICH A STATE MAY
ESCHEAT.  THE FIRST ACT OF THIS KIND WAS BY PENNSYLVANIA IN 1937.  ACT
OF JUNE 25, 1937, PAMPHLET LAWS 2063, PURDON'S PA. STAT., TITLE 27,
SEC. 434.  IT IS ALSO ALLEGED, AND NOT DENIED, THAT TWO OTHER STATES
HAVE ENACTED SIMILAR LAWS WHICH ARE NOW IN FORCE.  THE PENNSYLVANIA
STATUTE "ESCHEATS," AS THE COURT SAYS, ONLY PROCEEDS OF POLICIES ISSUED
BY COMPANIES INCORPORATED IN PENNSYLVANIA.  BUT IT ESCHEATS ALL OF
THOSE REGARDLESS OF RESIDENCE OF THE INSURED OR OF WHERE THE POLICY WAS
DELIVERED.  ITS CONFLICT WITH THE LAW BEFORE US IS PATENT AND
IMMEDIATE.  WE CANNOT SUSTAIN NEW YORK'S STATUTE WITHOUT, TO THE EXTENT
HERE INDICATED, STRIKING DOWN THAT OF PENNSYLVANIA, WHICH IS NOT A
PARTY HERE AND WHOSE CLAIMS HAVE NOT BEEN HEARD.  THE ORIGINAL NEW YORK
STATUTE, CH. 923, LAWS OF 1939, WAS SIMILAR TO THE PENNSYLVANIA ACT. 
IT WAS ATTACKED AS UNCONSTITUTIONAL, NEW YORK LIFE INS. CO. V. PINK,
NEW YORK LAW JOURNAL, DEC. 21, 1939, P. 2257, BUT WAS AMENDED TO APPLY
ONLY TO POLICIES ISSUED BY NEW YORK COMPANIES ON THE LIVES OF RESIDENTS
OF NEW YORK.  CH. 602, LAWS OF 1940.  IN 1943 THESE ACTS WERE REMOVED
FROM THE INSURANCE LAW, RE-ENACTED AS PART OF THE ABANDONED PROPERTY
LAW.  CH. 697, LAWS OF 1943.  IN 1944 THESE PRESENT STATUTES WERE
ENACTED, EXTENDING TO FOREIGN INSURANCE COMPANIES AND ON THE BASIS HERE
IN QUESTION.  CHS.  497, 498, LAWS OF 1944.  THUS, IT REPRESENTS A
DELIBERATE STATE PLAN OF ESCHEAT BASED ONLY ON ISSUANCE, FOR DELIVERY
IN NEW YORK, OF A POLICY INSURING THE LIFE OF A THEN NEW YORK RESIDENT,
AND IRRESPECTIVE OF LOCATION OF THE INSURER OR RESIDENCE OF THE
BENEFICIARY. 

FOR THE REASONS OUTLINED HEREIN, I SHOULD EXPRESS DISAPPROVAL OF THE
DECLARATORY JUDGMENT BELOW, DECLINE TO CERTIFY THE VALIDITY OF THIS
LEGISLATION AT THIS TIME, AND DEAL WITH THIS PROBLEM ONLY AS PRESENTED
BY CONCRETE CASES OR CONTROVERSIES INVOLVING PARTICULAR FUNDS AND
FACTS.  BUT IF WE ARE TO RENDER A DECISION IN THE ABSTRACT, I SHOULD
SAY THAT NEW YORK BY THIS STATUTE OVERREACHES ITS SISTER STATES BY THE
TESTS I HAVE SET FORTH. 
..END :








MOORE V. NEW YORK, 333 U.S. 565 


NO. 485.  ARGUED FEBRUARY 12, 1948.  - DECIDED MARCH 29, 1948.  - 297
N.Y. 734, 77 N.E.2D 25, AFFIRMED. 


1.  THE VALIDITY OF NEW YORK SPECIAL JURY STATUTES UNDER THE FEDERAL
CONSTITUTION IS SUSTAINED AS AGAINST A CLAIM OF INVALIDITY BASED ON THE
RATIO OF CONVICTIONS TO ACQUITTALS IN CASES TRIED BY SPECIAL JURIES AND
IN CASES TRIED BY ORDINARY JURIES.  FAY V. NEW YORK, 332 U.S. 261.  PP.
566-567. 

2.  THE CLAIM OF SYSTEMATIC, INTENTIONAL AND DELIBERATE EXCLUSION OF
NEGROES FROM THE JURY IS NOT SUSTAINED BY THE RECORD IN THIS CASE.  PP.
567-569. 

MOORE ET AL. V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

PETITIONERS WERE CONVICTED OF MURDER BY A SPECIAL JURY IN A NEW YORK
STATE COURT.  THE COURT OF APPEALS OF NEW YORK AFFIRMED THE
CONVICTIONS.  297 N.Y. 734, 77 N.E.2D 25.  THIS COURT GRANTED
CERTIORARI.  332 U.S. 843.  AFFIRMED, P. 569. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE INDICTED IN BRONX COUNTY, NEW YORK, ON FEBRUARY 11,
1947, FOR THE CRIME OF MURDER IN THE FIRST DEGREE.  THE DISTRICT
ATTORNEY MOVED THE COURT FOR AN ORDER THAT THE TRIAL BE BY A SPECIAL
JURY, PURSUANT TO NEW YORK LAW, WHICH MOTION WAS GRANTED OVER
OPPOSITION ON BEHALF OF DEFENDANTS BY ASSIGNED COUNSEL.  ONE HUNDRED
AND FIFTY NAMES WERE DRAWN FROM THE SPECIAL JURY PANEL, UNDER
SUPERVISION OF A JUSTICE OF THE STATE SUPREME COURT, IN THE PRESENCE OF
DEFENDANTS' COUNSEL AND WITHOUT OBJECTION. 

WHEN THE CASE WAS CALLED FOR TRIAL DEFENDANTS, AS PERMITTED BY THE
STATE PRACTICE, SERVED A WRITTEN CHALLENGE TO THE PANEL OF JURORS UPON
THE FOLLOWING GROUNDS: 

1.  THAT SEC. 749-AA OF THE JUDICIARY LAW OF THE STATE OF NEW YORK IS
IN VIOLATION OF SEC. 1 OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES. 

2.  THAT QUALIFIED NEGRO JURORS WERE IMPROPERLY EXCLUDED FROM THE
LIST OF SPECIAL JURORS, FROM WHICH SAID JURY PANEL WAS DRAWN. 

3.  THAT QUALIFIED WOMEN JURORS WERE IMPROPERLY EXCLUDED FROM THE
LIST OF SPECIAL JURORS, FROM WHICH SAID JURY PANEL WAS DRAWN. 

AFTER FULL HEARING, THE CHALLENGE WAS DISALLOWED AND PETITIONERS WERE
TRIED AND CONVICTED.  ON APPEAL TO THE COURT OF APPEALS, THE THIRD
GROUND OF CHALLENGE TO THE JURY PANEL WAS ABANDONED AND THE CONVICTIONS
WERE AFFIRMED.  297 N.Y. 734, 77 N.E.2D 25.  WE GRANTED CERTIORARI ON A
PETITION RAISING THE REMAINING GROUNDS.  332 U.S. 843. 

THE CONSTITUTIONALITY OF THE NEW YORK SPECIAL JURY STATUTES HAS BUT
RECENTLY BEEN SUSTAINED BY THIS COURT, FAY V. NEW YORK, 332 U.S. 261,
AGAINST A BETTER SUPPORTED CHALLENGE THAN IS HERE PRESENTED, AND THE
ISSUE WARRANTS LITTLE DISCUSSION AT THIS TIME. 

SOME EFFORT IS MADE BY STATISTICS TO DIFFERENTIATE THIS CASE FROM THE
PRECEDENT ONE AS TO THE RATIO OF CONVICTIONS BEFORE SPECIAL JURIES
CONTRASTED WITH THAT BEFORE ORDINARY JURIES.  THE DEFENDANTS PRESENT TO
US A STUDY FROM JULY 1, 1937, TO JUNE 30, 1946, WHICH INDICATES THAT
SPECIAL JURIES IN BRONX COUNTY RETURNED 15 CONVICTIONS AND 4 ACQUITTALS
DURING THE PERIOD AND CONCLUDES THAT THE SPECIAL JURY CONVICTED IN 79%
OF THE CASES WHILE THE GENERAL JURIES CONVICTED IN 57%. THE DISTRICT
ATTORNEY RESPONDS THAT IN 5 OF THESE 19 CASES, THE SPECIAL JURY
RETURNED CONVICTION IN A LESSER DEGREE THAN THAT CHARGED AND, HENCE IN
9 OUT OF 19 CASES WITHHELD ALL OR PART OF WHAT THE STATE ASKED. 
MOREOVER, IT IS SAID THAT ALL BUT TWO WERE CAPITAL CASES, ANOTHER WAS
FOR MANSLAUGHTER AND ONE FOR CRIMINALLY RECEIVING STOLEN PROPERTY.  IT
SHOULD BE OBSERVED THAT THE NUMBER OF CASES INVOLVED IN THESE
STATEMENTS IS TOO SMALL TO AFFORD A SECURE BASIS FOR GENERALIZING AS TO
THE CONVICTING PROPENSITIES OF THE TWO JURY PANELS, EVEN IF THE CASES
WERE COMPARABLE.  BUT IT APPEARS THAT IN BRONX COUNTY A SYSTEM OF
SPECIAL AND INTENSIVE INVESTIGATION IS APPLIED TO CAPITAL CASES FROM
THE MOMENT THEY ARE REPORTED, MORE CAREFUL PREPARATION IS GIVEN THEM
AND THEY ARE TRIED BY THE MOST EXPERIENCED PROSECUTORS.  THIS MAKES
THIS CLASS OF CASES NOT FAIRLY COMPARABLE WITH THE RUN-OF-THE-MILL
CASES, FELONY AND MISDEMEANOR, THAT ARE INCLUDED IN THE ORDINARY JURY
STATISTICS.  MOREOVER, NONE OF THESE FACTS WERE LAID BEFORE THE TRIAL
COURT, WHICH WAS IN THE BEST POSITION TO ANALYZE, SUPPLEMENT OR
INTERPRET THEM.  WE THINK ON THIS PART OF THE CHALLENGE NO QUESTION IS
PRESENTED THAT WAS NOT DISPOSED OF IN FAY V. NEW YORK, SUPRA.  INDEED,
ON OPENING THE HEARING ON DEFENDANTS' CHALLENGE THE TRIAL COURT SAID,
"I UNDERSTAND THE INQUIRY NOW IS TO BE DIRECTED TO THE INTENTIONAL
ELIMINATION OR DISQUALIFICATION OF WOMEN AND NEGROES ON THE SPECIAL
JURY PANEL."  COUNSEL FOR BOTH DEFENDANTS ASSENTED TO THIS DEFINITION
OF THE ISSUES AND NO EVIDENCE ON OTHER SUBJECTS WAS OFFERED. 

PETITIONERS' REMAINING POINT IS THAT "THE TRIAL OF THE PETITIONERS,
NEGROES, BY A JURY SELECTED FROM A PANEL FROM WHICH NEGROES WERE
SYSTEMATICALLY, INTENTIONALLY AND DELIBERATELY EXCLUDED, DENIED
PETITIONERS THE EQUAL PROTECTION OF LAW AND DUE PROCESS OF LAW
GUARANTEED THEM BY THE CONSTITUTION OF THE UNITED STATES."  IF THE
EVIDENCE SUPPORTED THE ASSUMPTION OF FACT INCLUDED IN THIS STATEMENT,
THE POINT WOULD BE OF COMPELLING MERIT.  THE LAW ON THIS SUBJECT IS NOW
SO SETTLED THAT WE NO LONGER FIND IT NECESSARY TO WRITE OUT EXPOSITIONS
OF THE CONSTITUTION IN THIS REGARD.  SEE BRUNSON V. NORTH CAROLINA, 333
U.S. 851, DECIDED MARCH 15, 1948. 

IT IS ADMITTED THAT ON THIS PANEL OF ONE HUNDRED AND FIFTY THERE WERE
NO NEGROES.  BUT NOT ONLY IS THE RECORD WANTING IN PROOF OF INTENTIONAL
AND SYSTEMATIC EXCLUSION - THE ONLY WITNESSES SWORN TESTIFIED THAT
THERE WAS NO SUCH PRACTICE OR INTENT.  NOTHING IN THE BACKGROUND FACTS
DISCREDITS THIS TESTIMONY.  THE CENSUS FIGURES GIVE A PROPORTION OF
NEGRO-TO-WHITE POPULATION IN THAT COUNTY OF .7% IN 1920, 1.0% IN 1930,
AND 1.7% IN 1940.  IT IS ADMITTED THAT SINCE THE LAST CENSUS THE NEGRO
POPULATION HAS CONSIDERABLY INCREASED.  ACCORDING TO ONE ESTIMATE, THE
NUMBER OF COLORED INHABITANTS, WHICH IN 1940 WAS 24,892, HAS INCREASED
TO 192,066 IN 1948.  THE SAME ESTIMATOR LATER REVISED THE FIGURES TO
BETWEEN 65,000 AND 70,000.  NEITHER ESTIMATE WAS BEFORE THE TRIAL
COURT, AND NO EVIDENCE OR FINDING GIVES US JUDICIALLY APPROVED DATA. 
OF COURSE, NEW WARTIME ARRIVALS TAKE SOME TIME TO QUALIFY AS ACTIVE
MEMBERS OF THE COMMUNITY AND ITS MACHINERY OF JUSTICE CANNOT BE
EXPECTED INSTANTANEOUSLY TO REFLECT THEIR PRESENCE.  THE OFFICIAL WHO
COMPILED THE JURY LISTS TESTIFIED AS TO NEGRO JURORS THAT "FROM 1946 ON
I MUST HAVE EXAMINED AT LEAST 500 MYSELF."  THE NUMBER ACCEPTED FOR
SERVICE COULD NOT BE ASCERTAINED FROM THE RECORDS, WHICH MAKE NO
NOTATION OF COLOR, BUT HE TESTIFIED THAT THERE WERE "MAYBE TWO DOZEN;
MAYBE THREE DOZEN."  FOR THE SPECIAL PANEL, HE TESTIFIED THAT HE HAD
EXAMINED AN ESTIMATED ONE HUNDRED NEGROES AND HAD ACCEPTED "MAYBE A
DOZEN."  THE TESTIMONY IS UNDENIED. 

THE RECORD IS UTTERLY DEVOID OF PROOF OF SYSTEMATIC, INTENTIONAL AND
DELIBERATE EXCLUSION OF NEGROES FROM JURY DUTY. 

THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS
AND MR. JUSTICE RUTLEDGE CONCUR, DISSENTING. 

THIS CASE REPRESENTS A TRAGIC CONSEQUENCE THAT CAN FLOW FROM THE USE
OF THE "BLUE RIBBON" JURY.  TWO MEN MUST FORFEIT THEIR LIVES AFTER
HAVING BEEN CONVICTED OF MURDER NOT BY A JURY OF THEIR PEERS, NOT BY A
JURY CHOSEN FROM A FAIR CROSS-SECTION OF THE COMMUNITY, BUT BY A JURY
DRAWN FROM A SPECIAL GROUP OF INDIVIDUALS SINGLED OUT IN A MANNER
INCONSISTENT WITH THE DEMOCRATIC IDEALS OF THE JURY SYSTEM.  THAT GROUP
WAS CHOSEN BECAUSE THEY POSSESSED SOME TRAIT OR CHARACTERISTIC WHICH
DISTINGUISHED THEM FROM THE GENERAL PANEL OF JURORS, SOME QUALIFICATION
WHICH MADE THEM MORE DESIRABLE FOR THE STATE'S PURPOSE OF SECURING THE
CONVICTION OF THE TWO PETITIONERS.  SUCH A BASIS FOR JURY SELECTION HAS
NO PLACE IN OUR CONSTITUTIONAL WAY OF LIFE.  IT CONTRAVENES THE MOST
ELEMENTARY NOTIONS OF EQUAL PROTECTION AND I CAN NO MORE ACQUIESCE IN
ITS USE IN THIS CASE THAN I WAS ABLE TO DO IN FAY V. NEW YORK, 332 U.S.
261. 

THE CONSTITUTIONAL INVALIDITY OF THIS "BLUE RIBBON" SYSTEM DOES NOT
DEPEND UPON PROOF OF THE SYSTEMATIC AND INTENTIONAL EXCLUSION OF ANY
ECONOMIC, RACIAL OR SOCIAL GROUP.  NOR DOES IT REST UPON A
DEMONSTRATION THAT "BLUE RIBBON" JURIES ARE MORE INCLINED TO CONVICT
THAN ORDINARY JURIES.  SUCH FACTORS ARE FREQUENTLY, IF NOT INVARIABLY,
PRESENT IN "BLUE RIBBON" SITUATIONS, THOUGH PROOF IS EXTREMELY
DIFFICULT.  BUT THEY ARE AT BEST ONLY THE END PRODUCTS OF THE SYSTEM,
NOT THE ROOT EVIL. 

THE VICE LIES IN THE VERY CONCEPT OF "BLUE RIBBON" PANELS - THE
SYSTEMATIC AND INTENTIONAL EXCLUSION OF ALL BUT THE "BEST" OR THE MOST
LEARNED OR INTELLIGENT OF THE GENERAL JURORS.  SUCH PANELS ARE
COMPLETELY AT WAR WITH THE DEMOCRATIC THEORY OF OUR JURY SYSTEM, A
THEORY FORMULATED OUT OF THE EXPERIENCE OF GENERATIONS.  ONE IS
CONSTITUTIONALLY ENTITLED TO BE JUDGED BY A FAIR SAMPLING OF ALL ONE'S
NEIGHBORS WHO ARE QUALIFIED, NOT MERELY THOSE WITH SUPERIOR
INTELLIGENCE OR LEARNING.  JURY PANELS ARE SUPPOSED TO BE
REPRESENTATIVE OF ALL QUALIFIED CLASSES.  WITHIN THOSE CLASSES, OF
COURSE, ARE PERSONS WITH VARYING DEGREES OF INTELLIGENCE, WEALTH,
EDUCATION, ABILITY AND EXPERIENCE.  BUT IT IS FROM THAT WELTER OF
QUALIFIED INDIVIDUALS, WHO MEET SPECIFIED MINIMUM STANDARDS, THAT
JURIES ARE TO BE CHOSEN.  ANY METHOD THAT PERMITS ONLY THE "BEST" OF
THESE TO BE SELECTED OPENS THE WAY TO GRAVE ABUSES.  THE JURY IS THEN
IN DANGER OF LOSING ITS DEMOCRATIC FLAVOR AND BECOMING THE INSTRUMENT
OF THE SELECT FEW. 

HENCE THE "BLUE RIBBON" METHOD OF SELECTING ONLY THE "BEST" OF THE
GENERAL JURORS, A METHOD INSTITUTED WITH THE HIGHEST OF INTENTIONS,
DOES VIOLENCE TO THE FUNDAMENTAL PRECEPTS OF THE JURY SYSTEM.  APPEALS
TO ADMINISTRATIVE CONVENIENCE DO NOT SOFTEN THAT VIOLENCE.  AND SINCE
THE METHOD DEPRIVES THE DEFENDANT OF THE PROTECTION ACCORDED OTHERS WHO
ARE ABLE TO DRAW UPON THE GENERAL PANEL, IT FALLS UNDER THE BAN OF THE
FOURTEENTH AMENDMENT.  I WOULD THEREFORE REVERSE THE JUDGMENT BELOW. 
..END :
























ECCLES V. PEOPLES BANK, 333 U.S. 426 


NO. 101.  ARGUED DECEMBER 9, 1947.  - DECIDED MARCH 15, 1948.  - 82 U.S.
APP. D.C. 126, 161 F.2D 636, REVERSED. 


IN ADMITTING A STATE BANK TO MEMBERSHIP IN THE FEDERAL RESERVE SYSTEM,
THE BOARD OF GOVERNORS PRESCRIBED A CONDITION THAT, IF A PARTICULAR
BANK HOLDING COMPANY ACQUIRED STOCK IN THE BANK, THE BANK WOULD
WITHDRAW FROM MEMBERSHIP WITHIN 60 DAYS AFTER WRITTEN NOTICE FROM THE
BOARD.  THE HOLDING COMPANY ACQUIRED LESS THAN 11% OF THE BANK'S
STOCK.  THE BANK SUED FOR A DECLARATORY JUDGMENT THAT THE CONDITION WAS
INVALID AND FOR AN INJUNCTION AGAINST ITS ENFORCEMENT.  ITS CLAIMS OF
THREATENED INJURY WERE SUPPORTED ENTIRELY BY AFFIDAVITS.  THE BOARD
DISAVOWED ANY PRESENT INTENTION OF ENFORCING THE CONDITION, ON THE
GROUND THAT IT HAD SATISFIED ITSELF THAT THE BANK'S INDEPENDENCE HAD
NOT BEEN AFFECTED AND THAT THE PUBLIC INTEREST REQUIRED NO ACTION. 
HELD:  THE BANK'S NEED FOR EQUITABLE RELIEF IS TOO REMOTE AND
SPECULATIVE TO JUSTIFY A DECLARATORY JUDGMENT - ESPECIALLY AGAINST AN
AGENCY OF THE GOVERNMENT AND ON THE BASIS OF AFFIDAVITS.  PP. 426-435. 

ECCLES ET AL. V. PEOPLES BANK OF LAKEWOOD VILLAGE, CALIFORNIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

THE DISTRICT COURT DENIED A DECLARATORY JUDGMENT THAT A CONDITION
PRESCRIBED BY THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM IN
ADMITTING A STATE BANK TO MEMBERSHIP IN THE FEDERAL RESERVE SYSTEM WAS
INVALID AND DENIED AN INJUNCTION AGAINST ITS ENFORCEMENT.  THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA REVERSED.  82 U.S.
APP. D.C. 126, 161 F.2D 636.  THIS COURT GRANTED CERTIORARI.  332 U.S.
755.  REVERSED, P. 435. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING UNDER THE DECLARATORY JUDGMENT ACT, 48 STAT.
955, 28 U.S.C. SEC. 400.  ITS AIM IS TO HAVE DECLARED INVALID A
CONDITION UNDER WHICH THE RESPONDENT BECAME A MEMBER OF THE FEDERAL
RESERVE SYSTEM.  THE CALIFORNIA STATE BANKING COMMISSION AUTHORIZED THE
ESTABLISHMENT OF THE RESPONDENT PROVIDED IT OBTAINED FEDERAL DEPOSIT
INSURANCE.  THIS REQUIREMENT COULD BE MET EITHER BY DIRECT APPLICATION
TO THE FEDERAL DEPOSIT INSURANCE CORPORATION OR THROUGH MEMBERSHIP IN
THE FEDERAL RESERVE SYSTEM.  SEC. 12 B (E) AND (F) OF THE FEDERAL
RESERVE ACT, 48 STAT. 162, 170, 49 STAT. 684, 687, 12 U.S.C. SEC.
264(E) AND (F).  RESPONDENT SOUGHT SUCH MEMBERSHIP BUT ITS APPLICATION
WAS REJECTED.  THE PROMOTERS OF THE BANK, HAVING REQUESTED THE BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM TO RECONSIDER THE APPLICATION
FOR MEMBERSHIP, WERE ADVISED THAT FAVORABLE ACTION DEPENDED ON A
SHOWING THAT THE TRANSAMERICA CORPORATION, A POWERFUL BANK HOLDING
COMPANY, DID NOT HAVE, NOR WAS INTENDED TO HAVE, ANY INTEREST IN THIS
BANK.  HAVING BEEN SATISFIED ON THIS POINT, THE BOARD OF GOVERNORS
GRANTED MEMBERSHIP TO RESPONDENT SUBJECT TO CONDITIONS OF WHICH THE
FOURTH IS THE BONE OF CONTENTION IN THIS LITIGATION. 

THIS CONDITION READS AS FOLLOWS: 

"4.  IF, WITHOUT PRIOR WRITTEN APPROVAL OF THE BOARD OF GOVERNORS OF
THE FEDERAL RESERVE SYSTEM, TRANS-AMERICA CORPORATION OR ANY UNIT OF
THE TRANSAMERICA GROUP, INCLUDING BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, OR ANY HOLDING COMPANY AFFILIATE OR ANY SUBSIDIARY
THEREOF, ACQUIRES, DIRECTLY OR INDIRECTLY, THROUGH THE MECHANISM OF
EXTENSION OF LOANS FOR THE PURPOSE OF ACQUIRING BANK STOCK, OR IN ANY
OTHER MANNER, ANY INTEREST IN SUCH BANK, OTHER THAN SUCH AS MAY ARISE
OUT OF USUAL CORRESPONDENT BANK RELATIONSHIPS, SUCH BANK, WITHIN 60
DAYS AFTER WRITTEN NOTICE FROM THE BOARD OF GOVERNORS OF THE FEDERAL
RESERVE SYSTEM, SHALL WITHDRAW FROM MEMBERSHIP IN THE FEDERAL RESERVE
SYSTEM." 

THE BOARD OF GOVERNORS GAVE THE RESPONDENT THIS EXPLANATION FOR THE
CONDITION: 

"THE APPLICATION FOR MEMBERSHIP HAS BEEN APPROVED UPON
REPRESENTATIONS THAT THE BANK IS A BONA FIDE LOCAL INDEPENDENT
INSTITUTION AND THAT NO HOLDING COMPANY GROUP HAS ANY INTEREST IN THE
BANK AT THE TIME OF ITS ADMISSION TO MEMBERSHIP, AND THAT THE DIRECTORS
AND STOCKHOLDERS OF THE BANK HAVE NO PLANS, COMMITMENTS OR
UNDERSTANDINGS LOOKING TOWARD A CHANGE IN THE STATUS OF THE BANK AS A
LOCAL INDEPENDENT INSTITUTION.  CONDITION OF MEMBERSHIP NUMBERED 4 IS
DESIGNED TO MAINTAIN THAT STATUS." 

SOME TIME LATER, IN 1944, TRANSAMERICA, WITHOUT PRIOR KNOWLEDGE OF
THE RESPONDENT, ACQUIRED 540 OF THE 5,000 SHARES OF ITS OUTSTANDING
STOCK.  THE BANK DULY ADVISED THE BOARD OF GOVERNORS OF THIS FACT, BUT
REQUESTED THAT IT BE RELIEVED OF CONDITION NO. 4.  THIS, THE BOARD OF
GOVERNORS DECLINED TO DO.  THEN FOLLOWED THIS ACTION, IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, AGAINST THE BOARD
OF GOVERNORS FOR A DECLARATION THAT CONDITION NO. 4 WAS INVALID AND FOR
AN INJUNCTION AGAINST ITS ENFORCEMENT.  A MOTION BY THE DEFENDANTS TO
DISMISS THE COMPLAINT, IN THAT IT FAILED TO SET FORTH A JUSTICIABLE
CONTROVERSY, WAS DENIED.  64 F.SUPP.  811.  THE DEFENDANTS ANSWERED,
CLAIMING THAT THE BANK'S ACCEPTANCE OF MEMBERSHIP BARRED IT FROM
QUESTIONING THE VALIDITY OF CONDITION NO. 4, AND THAT IN ANY CASE THE
CONDITION WAS VALID, AND MOVED FOR JUDGMENT ON THE PLEADINGS.  THE
BANK, HAVING FILED A NUMBER OF AFFIDAVITS, MOVED FOR SUMMARY JUDGMENT. 
THE DISTRICT COURT, IN AN UNREPORTED OPINION, HELD THAT THE BANK WAS
BOUND BY THE CONDITION ON WHICH IT HAD ACCEPTED MEMBERSHIP IN THE
FEDERAL RESERVE SYSTEM, AND GAVE JUDGMENT FOR THE DEFENDANTS.  THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, ONE JUDGE DISSENTING,
REVERSED.  IT REJECTED THE DEFENSE OF ESTOPPEL AND SUSTAINED THE
VALIDITY OF THE CONDITION "ONLY AS A STATEMENT THAT, IF THE BOARD OF
GOVERNORS SHOULD DETERMINE, AFTER HEARING, THAT TRANS-AMERICA'S
OWNERSHIP OF THE BANK'S SHARES HAS RESULTED IN A CHANGE FOR THE WORSE
IN THE CHARACTER OF THE BANK'S PERSONNEL, IN ITS BANKING POLICIES, IN
THE SAFETY OF ITS DEPOSITS OR IN ANY OTHER SUBSTANTIAL WAY, IT MAY
REQUIRE THE BANK TO WITHDRAW FROM THE FEDERAL RESERVE SYSTEM."  161
F.2D 636, 643-44.  ACCORDINGLY, IT REMANDED THE CASE TO THE DISTRICT
COURT FOR ENTRY OF A JUDGMENT CONSTRUING CONDITION NO. 4 TO SUCH
EFFECT.  SINCE THIS RULING INVOLVES A MATTER OF IMPORTANCE TO THE
ADMINISTRATION OF THE FEDERAL RESERVE ACT, WE BROUGHT THE CASE HERE. 
332 U.S. 755. 

CONDITION NO. 4 PROVIDES FOR WITHDRAWAL FROM MEMBERSHIP IN THE
FEDERAL RESERVE SYSTEM, FOR VIOLATION OF ITS PROVISIONS, "WITHIN 60
DAYS AFTER WRITTEN NOTICE FROM THE BOARD OF GOVERNORS ...  "  SECTION 9
OF THE FEDERAL RESERVE ACT AUTHORIZES THE BOARD OF GOVERNORS TO REVOKE
THE MEMBERSHIP STATUS OF A BANK "AFTER HEARING."  FN1  IF THE CASE
CONTAINED NO MORE THAN THE FOREGOING ELEMENTS, THREE QUESTIONS WOULD
EMERGE: 

(1)  WAS THIS ACTION PREMATURE, BROUGHT AS IT WAS BEFORE THE BOARD OF
GOVERNORS COMMENCED REVOCATION PROCEEDINGS? 

(2)  IF NOT, COULD THE RESPONDENT ATTACK THE VALIDITY OF A CONDITION
ON THE BASIS OF WHICH IT HAD BEEN ACCEPTED, AND HAD ENJOYED,
MEMBERSHIP?  COMPARE FAHEY V. MALLONEE, 332 U.S. 245, 255. 

(3)  IF SO, DID THE BOARD OF GOVERNORS HAVE POWER TO IMPOSE THE
CONDITION AS A MEANS OF GUARDING AGAINST ACQUISITION BY TRANSAMERICA OF
AN INTEREST IN RESPONDENT? 

HOWEVER, WITH DUE REGARD FOR THE CONSIDERATIONS THAT SHOULD GUIDE US
IN RENDERING A DECLARATORY JUDGMENT, THE RECORD AS A WHOLE REQUIRES US
TO DISPOSE OF THE CASE WITHOUT REACHING ANY OF THESE QUESTIONS. 

EXTENDED CORRESPONDENCE BETWEEN MARRINER S. ECCLES, THE THEN CHAIRMAN
OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, AND A.P.
GIANNINI, CHAIRMAN OF THE BOARD OF DIRECTORS OF TRANSAMERICA, TOGETHER
WITH THE TESTIMONY OF ECCLES BEFORE THE HOUSE COMMITTEE ON BANKING AND
CURRENCY, SET FORTH THE REASON FOR THE BOARD'S INSISTENCE ON THE FOURTH
CONDITION.  THE BOARD SOUGHT TO BLOCK "ACQUISITION BY TRANSAMERICA OF
STOCK IN INDEPENDENT UNIT BANKS, ESPECIALLY WHEN IT CONSTITUTES A MEANS
OF EVADING THE REQUIREMENTS OF THE FEDERAL AGENCIES WHO WILL NOT PERMIT
ITS BANKS TO ESTABLISH ADDITIONAL BRANCHES."  HEARINGS BEFORE COMMITTEE
ON BANKING AND CURRENCY, HOUSE OF REPRESENTATIVES, ON H.R. 2634, 78TH
CONG., 1ST SESS., P. 15.  THE BOARD WAS CONCERNED NOT THAT TRANSAMERICA
MIGHT PURCHASE SOME SHARES OF INDEPENDENT BANKS FOR THE ORDINARY
PURPOSES OF INVESTMENT, BUT THAT IT WOULD BUY INTO BANKS IN ORDER TO
ACQUIRE CONTROL, AND THEREBY TURN BANKS, THOUGH OUTWARDLY INDEPENDENT,
INTO PARTS OF ITS OWN BANKING NETWORK.  THE BOARD OF GOVERNORS WAS
THEREFORE CARRYING OUT THE POLICY UNDERLYING CONDITION NO. 4 WHEN IT
FORMALLY DISAVOWED ANY INTENTION TO INVOKE THAT CONDITION AGAINST
RESPONDENT MERELY BECAUSE OF ACQUISITION BY TRANSAMERICA OF AN INTEREST
IN THE BANK, WITH NO INDICATION OF SUBVERSION OF ITS INDEPENDENCE N2. 
THIS ACTION BY THE BOARD WAS TAKEN AFTER IT HAD SATISFIED ITSELF THAT
TRANSAMERICA'S HOLDING DID NOT AFFECT THE BANK'S CONTROL.  THE BANK HAD
VIGOROUSLY INSISTED ON ITS CONTINUED INDEPENDENCE, IN URGING UPON THE
BOARD THE HARMLESSNESS OF TRANSAMERICA'S OWNERSHIP OF SOME OF THE
BANK'S STOCK, AND THE BOARD, UPON INDEPENDENT INVESTIGATION FOUND SUCH
TO BE THE FACT.  ACCORDINGLY, THE BOARD CONCLUDED THAT "THE PUBLIC
INTEREST" CALLED FOR NO ACTION. 

A DECLARATORY JUDGMENT, LIKE OTHER FORMS OF EQUITABLE RELIEF, SHOULD
BE GRANTED ONLY AS A MATTER OF JUDICIAL DISCRETION, EXERCISED IN THE
PUBLIC INTEREST.  BRILLHART V. EXCESS INSURANCE CO., 316 U.S. 491;
GREAT LAKES DREDGE & DOCK CO. V. HUFFMAN, 319 U.S. 293, 297-98; H.R.
REP. NO. 1264, 73RD CONG., 2D SESS., P. 2; BORCHARD, DECLARATORY
JUDGMENTS (2D ED. 1941) PP. 312-14.  IT IS ALWAYS THE DUTY OF A COURT
OF EQUITY TO STRIKE A PROPER BALANCE BETWEEN THE NEEDS OF THE PLAINTIFF
AND THE CONSEQUENCES OF GIVING THE DESIRED RELIEF.  ESPECIALLY WHERE
GOVERNMENTAL ACTION IS INVOLVED, COURTS SHOULD NOT INTERVENE UNLESS THE
NEED FOR EQUITABLE RELIEF IS CLEAR, NOT REMOTE OR SPECULATIVE. 

THE ACTUALITY OF THE PLAINTIFF'S NEED FOR A DECLARATION OF HIS RIGHTS
IS THEREFORE OF DECISIVE IMPORTANCE.  AND SO WE TURN TO THE FACTS OF
THE CASE AT BAR.  THE BANK HAS ALWAYS INSISTED THAT IT IS INDEPENDENT
OF TRANSAMERICA; THE BOARD OF GOVERNORS HAS SUSTAINED THE CLAIM.  THE
BANK STANDS ON ITS RIGHT TO REMAIN IN THE FEDERAL RESERVE SYSTEM; THE
BOARD ACKNOWLEDGES THAT RIGHT.  THE BANK DISCLAIMS ANY INTENTION TO
GIVE UP ITS INDEPENDENCE; THE BOARD OF GOVERNORS, HAVING IMPOSED THE
CONDITION TO SAFEGUARD THIS INDEPENDENCE, DISAVOWS ANY ACTION TO
TERMINATE THE BANK'S MEMBERSHIP, SO LONG AS THE BANK MAINTAINS THE
INDEPENDENCE ON WHICH IT INSISTS.  WHAT THE BANK REALLY FEARS, AND FOR
WHICH IT NOW SEEKS RELIEF, IS THAT UNDER CHANGED CONDITIONS, AT SOME
FUTURE TIME, IT MAY BE REQUIRED TO WITHDRAW FROM MEMBERSHIP, AND IF
THIS HAPPENS, SO THE ARGUMENT RUNS, THE COMPTROLLER OF THE CURRENCY,
ONE OF THE DIRECTORS OF THE FEDERAL DEPOSIT INSURANCE CORPORATION, HAS
AGREED WITH THE FEDERAL RESERVE BOARD TO REFUSE ANY APPLICATION BY THE
BANK FOR DEPOSIT INSURANCE AS A NON-MEMBER. 

THUS THE BANK SEEKS A DECLARATION OF ITS RIGHTS IF IT SHOULD LOSE ITS
INDEPENDENCE, OR IF THE BOARD OF GOVERNORS SHOULD REVERSE ITS POLICY
AND SEEK TO INVOKE THE CONDITION EVEN THOUGH THE BANK REMAINS
INDEPENDENT AND IF THEN THE DIRECTORS OF THE FEDERAL DEPOSIT INSURANCE
CORPORATION SHOULD NOT CHANGE THEIR POLICY NOT TO GRANT DEPOSIT
INSURANCE TO THE BANK AS A NON-MEMBER OF THE FEDERAL RESERVE SYSTEM. 
THE CONCURRENCE OF THESE CONTINGENT EVENTS, NECESSARY FOR INJURY TO BE
REALIZED, IS TOO SPECULATIVE TO WARRANT ANTICIPATORY JUDICIAL
DETERMINATIONS.  COURTS SHOULD AVOID PASSING ON QUESTIONS OF PUBLIC LAW
EVEN SHORT OF CONSTITUTIONALITY THAT ARE NOT IMMEDIATELY PRESSING. 
MANY OF THE SAME REASONS ARE PRESENT WHICH IMPEL THEM TO ABSTAIN FROM
ADJUDICATING CONSTITUTIONAL CLAIMS AGAINST A STATUTE BEFORE IT
EFFECTIVELY AND PRESENTLY IMPINGES ON SUCH CLAIMS. 

IT APPEARS THAT THE RESPONDENT COULD, IF IT WISHED, PROTECT ITSELF
FROM THE LOSS OF ITS INDEPENDENCE THROUGH ADOPTION OF BY-LAWS
FORBIDDING ANY FURTHER SALE OR PLEDGE OF ITS SHARES TO TRANSAMERICA OR
ITS AFFILIATES.  SEE CALIFORNIA CORPORATIONS CODE, L. 1947, C. 1038,
SEC. 501(G).  FN3  TO THIS THE BANK REPLIES THAT EVEN IF ITS
INDEPENDENCE IS MAINTAINED, THE BOARD OF GOVERNORS MAY CHANGE ITS
POLICY, AND SEEK ENFORCEMENT OF CONDITION NO. 4, WHETHER OR NOT SUCH
ENFORCEMENT IS REQUIRED BY "THE PUBLIC INTEREST" IN HAVING INDEPENDENT
BANKS, WHICH THE CONDITION NOW SERVES.  SUCH AN ARGUMENT REVEALS THE
HYPOTHETICAL CHARACTER OF THE INJURY ON THE EXISTENCE OF WHICH A
JURISDICTION ROOTED IN DISCRETION IS TO BE EXERCISED.  IN THE LIGHT OF
ALL THIS, THE DIFFICULTIES DEDUCED FROM THE PRESENT UNCERTAINTY
REGARDING THE FUTURE ENFORCEMENT OF THE CONDITION, POSSIBLY LEADING TO
UNINSURED DEPOSITS, ARE TOO TENUOUS TO CALL FOR ADJUDICATION OF
IMPORTANT ISSUES OF PUBLIC LAW.  FN4  WE ARE ASKED TO CONTEMPLATE AS A
SERIOUS DANGER THAT A BODY ENTRUSTED WITH SOME OF THE MOST DELICATE AND
GRAVE RESPONSIBILITIES IN OUR GOVERNMENT WILL CHANGE A DELIBERATELY
FORMULATED POLICY AFTER URGING IT ON THIS COURT AGAINST THE BANK'S
STANDING TO ASK FOR RELIEF. 

A DETERMINATION OF ADMINISTRATIVE AUTHORITY MAY OF COURSE BE MADE AT
THE BEHEST OF ONE SO IMMEDIATELY AND TRULY INJURED BY A REGULATION
CLAIMED TO BE INVALID, THAT HIS NEED IS SUFFICIENTLY COMPELLING TO
JUSTIFY JUDICIAL INTERVENTION EVEN BEFORE THE COMPLETION OF THE
ADMINISTRATIVE PROCESS.  BUT, AS WE HAVE SEEN, THE BANK'S GRIEVANCE
HERE IS TOO REMOTE AND INSUBSTANTIAL, TOO SPECULATIVE IN NATURE, TO
JUSTIFY AN INJUNCTION AGAINST THE BOARD OF GOVERNORS, AND THEREFORE
EQUALLY INAPPROPRIATE FOR A DECLARATION OF RIGHTS.  THIS IS ESPECIALLY
TRUE IN VIEW OF THE TYPE OF PROOF OFFERED BY THE BANK.  ITS CLAIMS OF
INJURY WERE SUPPORTED ENTIRELY BY AFFIDAVITS.  JUDGMENT ON ISSUES OF
PUBLIC MOMENT BASED ON SUCH EVIDENCE, NOT SUBJECT TO PROBING BY JUDGE
AND OPPOSING COUNSEL, IS APT TO BE TREACHEROUS.  CAUTION IS APPROPRIATE
AGAINST THE SUBTLE TENDENCY TO DECIDE PUBLIC ISSUES FREE FROM THE
SAFEGUARDS OF CRITICAL SCRUTINY OF THE FACTS, THROUGH USE OF A
DECLARATORY SUMMARY JUDGMENT.  MODERN EQUITY PRACTICE HAS TENDED AWAY
FROM A PROCEDURE BASED ON AFFIDAVITS AND INTERROGATORIES, BECAUSE OF
ITS PROVEN INSUFFICIENCIES.  EQUITY RULE 46 FORBADE SUCH PRACTICE SAVE
IN EXCEPTIONAL CASES.  SEE LOS ANGELES BRUSH MFG. CORP. V. JAMES, 272
U.S. 701; CF. FEDERAL RULE OF CIVIL PROCEDURE 43(A).  AGAIN, NOT THE
LEAST OF THE EVILS THAT LED TO THE NORRIS-LAGUARDIA ACT WAS THE
FREQUENT PRACTICE OF ISSUING LABOR INJUNCTIONS UPON THE BASIS OF
AFFIDAVITS RATHER THAN AFTER ORAL PROOF PRESENTED IN OPEN COURT.  SEE
AMIDON, J., IN GREAT NORTHERN R. CO. V. BROSSEAU, 286 F. 414, 416;
SWAN, J., IN AEOLIAN CO. V. FISCHER, 29 F.2D 679, 681-82.    WHERE
ADMINISTRATIVE INTENTION IS EXPRESSED BUT HAS NOT YET COME TO FRUITION
(ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 324), OR WHERE
THAT INTENTION IS UNKNOWN (GREAT ATLANTIC & PACIFIC TEA CO. V.
GROSJEAN, 301 U.S. 412, 429-30), WE HAVE HELD THAT THE CONTROVERSY IS
NOT YET RIPE FOR EQUITABLE INTERVENTION.  SURELY, WHEN A BODY SUCH AS
THE FEDERAL RESERVE BOARD HAS NOT ONLY NOT ASSERTED A CHALLENGED POWER
BUT HAS EXPRESSLY DISCLAIMED ITS INTENTION TO GO BEYOND THE LEGITIMATE
"PUBLIC INTEREST" CONFIDED TO IT, A COURT SHOULD STAY ITS HAND. 
JUDGMENT REVERSED. 

FN1  "IF AT ANY TIME IT SHALL APPEAR TO THE BOARD OF GOVERNORS OF THE
FEDERAL RESERVE SYSTEM THAT A MEMBER BANK HAS FAILED TO COMPLY WITH THE
PROVISIONS OF THIS SECTION OR THE REGULATIONS OF THE BOARD OF GOVERNORS
OF THE FEDERAL RESERVE SYSTEM MADE PURSUANT THERETO, OR HAS CEASED TO
EXERCISE BANKING FUNCTIONS WITHOUT A RECEIVER OR LIQUIDATING AGENT
HAVING BEEN APPOINTED THEREFOR, IT SHALL BE WITHIN THE POWER OF THE
BOARD AFTER HEARING TO REQUIRE SUCH BANK TO SURRENDER ITS STOCK IN THE
FEDERAL RESERVE BANK AND TO FORFEIT ALL RIGHTS AND PRIVILEGES OF
MEMBERSHIP.  THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM MAY
RESTORE MEMBERSHIP UPON DUE PROOF OF COMPLIANCE WITH THE CONDITIONS
IMPOSED BY THIS SECTION."  38 STAT. 251, 260, AS AMENDED, 46 STAT. 250,
251, 49 STAT. 684, 704, 12 U.S.C. SEC. 327.  SEE ALSO SEC. 5 OF THE
ADMINISTRATIVE PROCEDURE ACT, 60 STAT. 237, 239, 5 U.S.C. SEC. 1004. 

FN2  THE FOLLOWING IS AN EXTRACT FROM THE MINUTES OF A MEETING OF THE
BOARD ON JANUARY 28, 1946: 

"UPON CONSIDERATION OF THE LATEST REPORT OF EXAMINATION OF THE
PEOPLES BANK, LAKEWOOD VILLAGE, CALIFORNIA, FROM WHICH THE BOARD
CONCLUDED THAT THERE HAD BEEN NO SUBSTANTIAL CHANGE IN THE CONTROL,
MANAGEMENT OR POLICY OF THE BANK RESULTING FROM THE ACQUISITION BY
TRANSAMERICA CORPORATION OF CERTAIN SHARES OF THE BANK'S STOCK, THE
BOARD, BY UNANIMOUS VOTE, DECIDED THAT THERE WAS NO PRESENT NEED IN THE
PUBLIC INTEREST FOR ANY ACTION BY THE BOARD WITH RESPECT TO THE
CONDITION OF MEMBERSHIP OF THE BANK RELATING TO ACQUISITION OF ITS
STOCK BY TRANSAMERICA CORPORATION." 

FN3  "501.  THE BY-LAWS OF A CORPORATION MAY MAKE PROVISIONS NOT IN
CONFLICT WITH LAW OR ITS ARTICLES FOR: 

     .         .         .         .         . 

"(G)  SPECIAL QUALIFICATIONS OF PERSONS WHO MAY BE SHAREHOLDERS, AND
REASONABLE RESTRICTIONS UPON THE RIGHT TO TRANSFER OR HYPOTHECATE
SHARES." 

LIKEWISE, THE SHAREHOLDERS, OR SUCH OF THEM AS CHOSE TO, COULD
PRESUMABLY BIND THEMSELVES NOT TO SELL OR PLEDGE TO TRANSAMERICA, AND
BY NOTING THIS AGREEMENT ON THEIR CERTIFICATES COULD BIND THEIR
TRANSFEREES.  CF. VANNUCCI V. PEDRINI, 217 CAL. 138, 17 P.2D 706. 

FN4  THE BANK ASSERTED, IN ITS AFFIDAVITS, NOT THAT LACK OF
CONFIDENCE HAD DETERRED DEPOSITORS, BUT THAT DEPOSITS HAD BEEN SO HEAVY
THAT CAPITAL EXPANSION WAS IN ORDER, BUT MIGHT BE DISADVANTAGED BY FEAR
OF PROSPECTIVE INVESTORS TO RISK PERSONAL ASSESSMENT IF DEPOSITS WERE
UNINSURED. 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

IN ORDER TO GET ADMISSION INTO THE FEDERAL RESERVE SYSTEM, THE
RESPONDENT WAS REQUIRED TO PUT INTO ITS CHARTER A PROVISION WHICH WAS
ALLEGEDLY BEYOND THE POWER OF THE BOARD OF GOVERNORS OF THE SYSTEM TO
REQUIRE.  IT SEEMS OBVIOUS THAT THE REQUIREMENT WAS A RESTRICTION ON
THE MARKET FOR THE RESPONDENT'S STOCK AND THEREFORE DETRIMENTAL TO THE
CONDUCT OF ITS BUSINESS, A CONTINUING THREAT OF THE BOARD TO EXCLUDE
RESPONDENT FROM THE BENEFITS OF THE SYSTEM. 

RESPONDENT DESIRED TO BE FREE OF WHAT IT REGARDED AS AN ILLEGAL
REQUIREMENT.  THE BOARD OF GOVERNORS HAS NOT AGREED THAT IT WILL NEVER
ENFORCE THE PROHIBITION BUT HOLDS IT AS A THREAT TO FORCE THE
RESPONDENT TO RESIGN FROM THE SYSTEM UPON ACQUISITION OF CONTROL BY
THOSE DEEMED UNDESIRABLE BY THE BOARD. 

CERTAINLY, AS I SEE IT, THERE IS NOT ONLY THE POSSIBILITY OF FUTURE
INJURY BUT A PRESENT INJURY BY REASON OF THE THREAT TO THE
MARKETABILITY OF RESPONDENT'S STOCK.  IT MAY HAVE A SUBSTANTIAL BEARING
UPON THE WILLINGNESS OF CUSTOMERS TO ESTABLISH BANKING RELATIONS WITH
IT, ESPECIALLY MAJOR RELATIONSHIPS LOOKING TOWARD LONG AND CLOSE
ASSOCIATIONS OF INTERESTS.  IT REQUIRES NO ELABORATION TO CONVINCE ME
THAT THE THREAT IS A REAL AND SUBSTANTIAL INTERFERENCE BY ALLEGEDLY
ILLEGAL GOVERNMENTAL ACTION.  AS THAT THREAT HAS TAKEN A DEFINITE FORM
BY THE ENFORCED AGREEMENT FOR WITHDRAWAL, WE HAVE NOT SOMETHING THAT
MAY HAPPEN BUT A CONCRETE WRITTEN NOTICE REQUIRING WITHDRAWAL BY THIS
RESPONDENT FROM THE SYSTEM ON THE HAPPENING OF A FACT WHICH IS CONTRARY
TO THE BOARD'S IDEA OF THE PUBLIC INTEREST.  WHETHER THE BOARD'S IDEA
OF A LEGITIMATE PUBLIC INTEREST IS CORRECT IS THE VERY POINT AT ISSUE. 

IN SUCH CIRCUMSTANCES THERE IS A JUSTICIABLE CONTROVERSY, THE CLAIM
OF A RIGHT AND A PRESENT THREAT TO DEPRIVE A PARTICULAR PERSON OF THE
RIGHT CLAIMED.  THE DAMAGE FROM ITS ACTUAL OR THREATENED ENFORCEMENT
IS, OF COURSE, IRREMEDIABLE.  ANY BANK WOULD BE SERIOUSLY INJURED BY
EVEN AN EFFORT TO OUST IT FROM THE SYSTEM.  THIS GIVES JURISDICTION
UNDER THE DECLARATORY JUDGMENT ACT.  JUDICIAL CODE SEC. 274D. 

THIS COURT HAS DISCRETION TO REFUSE TO CONSIDER A PETITION FOR A
DECLARATORY JUDGMENT AND AN INJUNCTION TO STOP A THREATENED OR EXISTING
INJURY.  FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 461.  THAT
DISCRETION IS NOT UNFETTERED.  ALTVATER V. FREEMAN, 319 U.S. 359, 363. 
THERE IS NO DIFFERENCE BETWEEN DECLARATORY SUITS INVOLVING AN EQUITABLE
REMEDY AND OTHER EQUITY SUITS.  WHERE AN ACTUAL CONTROVERSY WITH
FEDERAL JURISDICTION EXISTS OVER THE LEGAL RELATIONS OF ADVERSE
PARTIES, DISCRETION USUALLY CANNOT PROPERLY BE EXERCISED BY REFUSING AN
ADJUDICATION.  MEREDITH V. WINTER HAVEN, 320 U.S. 228; CF. BELL V.
HOOD, 327 U.S. 678.  UNUSUAL CIRCUMSTANCES, NOT HERE PRESENT, SUCH AS
OTHER PENDING SUITS, BRILLHART V. EXCESS INSURANCE CO., 316 U.S. 491,
OR SUPERSESSION OF STATE AUTHORITY, GREAT LAKES DREDGE & DOCK CO. V.
HUFFMAN, 319 U.S. 293, SOMETIMES JUSTIFY REFUSAL OF RELIEF. 

UNDER THE FACTS OF THIS CASE, HOWEVER, IT SEEMS IMPROPER TO REFUSE AN
ADJUDICATION AT THIS TIME.  IF GOVERNMENTAL POWER IS BEING UNLAWFULLY
USED TO CONSTRAIN RESPONDENT'S OPERATION OF ITS BUSINESS, RESPONDENT IS
ENTITLED TO PROTECTION, NOW.  SEE COLUMBIA BROADCASTING SYSTEM V.
UNITED STATES, 316 U.S. 407, A CASE WHERE PREMATURITY WAS CLEARER THAN
HERE. 

I WOULD DECIDE THIS CASE ON THE MERITS. 
..END :















BAKERY DRIVERS UNION V. WAGSHAL, 333 U.S. 437 


NO. 225.  ARGUED DECEMBER 17-18, 1947.  - DECIDED MARCH 15, 1948.  - 82
U.S. APP. D.C. 138, 161 F.2D 380, AFFIRMED. 


IN A SUIT BY A DELICATESSEN STORE TO ENJOIN A BOYCOTT OF ITS BUSINESS
BY A LABOR UNION, THE PLEADINGS AND SUPPORTING AFFIDAVITS ALLEGED THAT:
BECAUSE THE HOURS OF DELIVERY WERE INCONVENIENT, THE STORE STOPPED
BUYING BREAD FROM ONE BAKERY AND STARTED BUYING FROM ANOTHER; ALTHOUGH
THE STORE HAD ALWAYS MADE PAYMENTS FOR THE BREAD DIRECT TO THE FIRST
BAKERY AND NOT TO THE DRIVER EMPLOYED BY THE BAKERY, A REPRESENTATIVE
OF THE BAKERY DRIVERS' UNION DEMANDED THAT PAYMENT OF THE BALANCE DUE
FOR BREAD PREVIOUSLY BOUGHT FROM THE FIRST BAKERY BE MADE TO THE DRIVER
WHO HAD DELIVERED IT AND THAT THE STORE DISCONTINUE THE SALE OF A
CERTAIN NON-UNION PRODUCT; THERE WAS A DISPUTE ABOUT THE AMOUNT OF THE
BILL; THE STORE DISCONTINUED THE SALE OF THE NON-UNION PRODUCT BUT
REFUSED TO MAKE PAYMENT FOR THE BREAD TO THE DRIVER; AND THE UNION
INSTITUTED A BOYCOTT WHICH PREVENTED THE STORE FROM OBTAINING BREAD
FROM OTHER BAKERIES OR RETAIL STORES.  THE DISTRICT COURT DENIED THE
UNION'S MOTION TO DISMISS THE SUIT AND GRANTED AN INJUNCTION PENDENTE
LITE.  THE COURT OF APPEALS DISMISSED AN APPEAL.  HELD: 

1.  THE BOYCOTT DID NOT GROW OUT OF A "LABOR DISPUTE" WITHIN THE
MEANING OF THE NORRIS-LAGUARDIA ACT, AND THE ORDER GRANTING AN
INJUNCTION PENDENTE LITE WAS THEREFORE NOT APPEALABLE AS OF RIGHT.  PP.
442-445. 

(A)  THE CONTROVERSY OVER THE HOUR OF DELIVERY WAS NOT A "LABOR
DISPUTE," SINCE IT WAS BETWEEN THE STORE AND THE BAKERY AND NOT BETWEEN
THE STORE AND THE DRIVER OR HIS UNION.  MOREOVER, IT WAS A DEAD
CONTROVERSY.  PP. 442-443. 

(B)  THE CONTROVERSY OVER THE AMOUNT OF THE BILL WAS BETWEEN THE
STORE AND THE BAKERY, AND IT DID NOT BECOME A "LABOR DISPUTE" MERELY
BECAUSE A REPRESENTATIVE OF THE UNION UNDERTOOK TO COLLECT THE BILL. 
PP. 443-444. 

(C)  SINCE IT APPEARS FROM THE RECORD BEFORE THIS COURT THAT THE
BOYCOTT WAS ADDRESSED ONLY TO THE QUESTION OF PAYMENT OF THE BILL AND
THAT THE INCIDENTAL CONTROVERSY OVER THE SALE OF A NON-UNION ITEM
(WHICH HAD BEEN DISCONTINUED) WAS A MERE PRETEXT, THE LATTER IS NOT
SUFFICIENT TO MAKE THE CASE ONE GROWING OUT OF A "LABOR DISPUTE."  P.
444. 

2.  THE LABOR MANAGEMENT RELATIONS ACT OF 1947, 61 STAT. 136, SEC.
10(H), DID NOT REMOVE THE LIMITATIONS OF THE NORRIS-LAGUARDIA ACT UPON
THE POWER TO ISSUE AN INJUNCTION AGAINST A SECONDARY BOYCOTT WHERE THE
INJUNCTION IS SOUGHT BY A PRIVATE PARTY.  P. 442. 

3.  SINCE THE RECORD DOES NOT SHOW THAT A STAY WAS GRANTED PENDING
REVIEW HERE, IT MUST BE ASSUMED THAT THE UNION'S ACTION IN LIFTING THE
BOYCOTT WAS MERELY OBEDIENCE TO THE JUDGMENT HERE FOR REVIEW; AND THE
CASE CANNOT BE CONSIDERED TO HAVE BECOME MOOT BY REASON OF THE LIFTING
OF THE BOYCOTT.  P. 442. 

4.  A CONTENTION THAT A DETERMINATION WHETHER THERE IS A LABOR
DISPUTE SHOULD NOT REST UPON AFFIDAVITS IS NOT RULED UPON, BECAUSE THE
AFFIDAVITS IN THIS CASE WERE MERELY A GLOSS ON THE COMPLAINT,
CONSTITUTED AN INFORMAL AMENDMENT, AND SERVED ONLY AS ALLEGATIONS AND
NOT PROOF.  PP. 444-445. 

BAKERY SALES DRIVERS LOCAL UNION NO. 33 ET AL. V. WAGSHAL, TRADING AS
WAGSHAL'S DELICATESSEN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
DISMISSED AN APPEAL FROM A JUDGMENT OF THE DISTRICT COURT GRANTING AN
INJUNCTION PENDENTE LITE AGAINST A BOYCOTT BY A LABOR UNION AND DENYING
A MOTION TO DISMISS THE SUIT.  82 U.S. APP. D.C. 138, 161 F.2D 380. 
THIS COURT GRANTED CERTIORARI.  332 U.S. 756.  AFFIRMED, P. 445. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BROUGHT IN A UNITED STATES DISTRICT COURT TO ENJOIN
INTERFERENCE WITH A BUSINESS, AND THE QUESTION IS WHETHER THE COMPLAINT
SUBJECTS THAT COURT TO THE LIMITATIONS IMPOSED BY THE NORRIS-LAGUARDIA
ACT UPON ITS EQUITY JURISDICTION. 

THIS IS THE SUBSTANCE OF THE COMPLAINT.  RESPONDENT OWNS A
DELICATESSEN STORE WHICH SELLS FOOD AND SERVES MEALS.  SHE OBTAINED
BREAD FOR THE DELICATESSEN STORE FROM HINKLE'S BAKERY.  DELIVERIES WERE
MADE BY A DRIVER, AN EMPLOYEE OF HINKLE AND A MEMBER OF LOCAL UNION NO.
33, ONE OF THE PETITIONERS.  THE DRIVER DELIVERED THE BREAD AT NOON,
WHICH INCONVENIENCED THE RESPONDENT, SINCE THE CHECKING OF DELIVERIES
AT THAT HOUR INTERFERED WITH THE SERVING OF LUNCHES.  RESPONDENT
"REQUIRED" THE DRIVER TO BRING THE BREAD AT ANOTHER HOUR.  SHORTLY
THEREAFTER, HINKLE INFORMED THE RESPONDENT THAT IT WOULD NO LONGER
FURNISH HER WITH BAKERY PRODUCTS.  AND SO, RESPONDENT MADE ARRANGEMENTS
WITH ANOTHER BAKERY, WHICH DELIVERED AT A MORE CONVENIENT HOUR. 

THREE WEEKS LATER, THE PETITIONER ANDRE, PRESIDENT OF THE UNION,
VISITED THE DELICATESSEN STORE AND STATED THAT THE RESPONDENT OWED THE
DRIVER APPROXIMATELY $150 AND REQUESTED IMMEDIATE PAYMENT.  RESPONDENT
REPLIED THAT SHE HAD NEVER HAD DEALINGS WITH THE DRIVER, BUT HAD PAID
HINKLE DIRECTLY BY CHECK, AND WOULD PAY THE BILL IN DUE COURSE.  ANDRE
REPLIED THAT THE PAYMENT WOULD HAVE TO BE MADE TO THE DRIVER IN FULL;
FURTHERMORE, THAT IF THE RESPONDENT DID NOT CEASE CARRYING A CERTAIN
NON-UNION ARTICLE OF FOOD HE NOTICED ON DISPLAY, DELIVERY OF BREAD,
MILK, AND OTHER PRODUCTS NECESSARY TO THE RESPONDENT'S BUSINESS WOULD
BE CUT OFF.  SHORTLY THEREAFTER THE RESPONDENT SENT A CHECK TO HINKLE
FOR THE BALANCE OF HER BILL.  IT WAS RETURNED BY THE UNION, WITH A
LETTER SIGNED BY ANDRE ASSERTING THAT THE PAYMENT WAS OWED TO ITS
MEMBER, THE DRIVER, AND COULD NOT BE ACCEPTED.  THE FOLLOWING DAY, THE
BAKERY WHICH HAD BEEN SERVING RESPONDENT AFTER HINKLE HAD STOPPED DOING
SO, CEASED TO DEAL WITH HER, EXPLAINING THAT THE UNION HAD THREATENED
OTHERWISE "TO PULL OUT ALL ITS DRIVERS."  THROUGH AN EFFECTIVE BOYCOTT,
THE UNION KEPT THE RESPONDENT FROM OBTAINING BREAD FROM OTHER BAKERIES
OR RETAIL STORES.  THE DELICATESSEN STORE WAS ALSO PICKETED. 

THE COMPLAINT PRAYED FOR TEMPORARY AND PERMANENT INJUNCTIONS AGAINST
THE BOYCOTT AND OTHER INTERFERENCE WITH RESPONDENT'S BUSINESS, THE
PAYMENT OF DAMAGES, AND THE USUAL CATCH-ALL RELIEF.  PETITIONERS MOVED
TO DISMISS THE ACTION ON THE GROUND THAT THE CONTROVERSY AS SET FORTH
IN THE COMPLAINT INVOLVED A "LABOR DISPUTE" UNDER THE NORRIS-LAGUARDIA
ACT, 47 STAT. 70, 29 U.S.C. SECS. 101 ET SEQ. RESPONDENT FILED AN
"ANSWER TO MOTION TO DISMISS," ATTACHED TO WHICH WERE AFFIDAVITS,
INCLUDING ONE OF BENJAMIN WAGSHAL, MANAGER OF THE DELICATESSEN STORE,
ELABORATING THE INCIDENTS NARRATED IN THE COMPLAINT.  AMONG OTHER
MATTERS SET FORTH, HE STATED THAT PAYMENT FOR BREAD PURCHASED FROM
HINKLE HAD ALWAYS BEEN MADE BY CHECK SENT DIRECTLY TO HINKLE AND WAS
NEVER MADE TO A DRIVER, AND THAT NEITHER THE UNION NOR ANY OF ITS
DRIVERS HAD EVER PREVIOUSLY QUESTIONED THIS PRACTICE; THAT ANDRE HAD
ASSERTED BY MAIL AND AT THE DELICATESSEN STORE THAT THE CHECK WHICH THE
RESPONDENT HAD SENT TO HINKLE WAS $12.22 SHORT OF THE AMOUNT OWED; AND
THAT THE NON-UNION ITEM ON SALE TO WHICH ANDRE HAD OBJECTED WAS NOT A
SUBJECT OF CONTROVERSY BUT MERELY AN EXCUSE FOR ANDRE'S ATTEMPT, ON HIS
VISIT TO THE DELICATESSEN STORE, TO ENFORCE HIS DEMANDS CONCERNING THE
BILL, AND THAT IN ANY EVENT ITS SALE HAD BEEN DISCONTINUED. 

THE DISTRICT COURT GRANTED AN INJUNCTION PENDENTE LITE, RESTRAINING
THE PETITIONERS FROM INTERFERING WITH RESPONDENT'S BUSINESS OR
PREVENTING SALE AND DELIVERY OF BAKERY PRODUCTS TO THE RESPONDENT, BY
BOYCOTT AND PICKETING.  AT THE SAME TIME, IT DENIED THE PETITIONERS'
MOTION TO DISMISS.  PETITIONERS FILED A NOTICE OF APPEAL TO THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA, AND RESPONDENTS MOVED TO
DISMISS THE APPEAL. 

IF THIS CASE DOES NOT INVOLVE A "LABOR DISPUTE" UNDER THE NORRIS
LAGUARDIA ACT, AN APPEAL AS OF RIGHT COULD NOT BE HAD IN THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA.  31 STAT. 1189, 1225, AS AMENDED,
D.C. CODE (1940) SEC. 17-101.  HOWEVER, SEC. 10 OF THE NORRIS-LAGUARDIA
ACT, 47 STAT. 70, 72, 29 U.S.C. SEC. 110, PROVIDES FOR IMMEDIATE REVIEW
OF AN ORDER GRANTING OR DENYING "ANY TEMPORARY INJUNCTION IN A CASE
INVOLVING OR GROWING OUT OF A LABOR DISPUTE  ...  "  FN1  THE COURT OF
APPEALS, ONE JUSTICE DISSENTING, HELD THAT THIS WAS NOT SUCH A CASE,
AND DISMISSED THE APPEAL.  161 F.2D 380.  BECAUSE OF ASSERTED CONFLICT
BETWEEN THIS DECISION AND PRIOR DECISIONS OF THIS COURT ON THE SCOPE OF
"LABOR DISPUTE" WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT, WE
GRANTED CERTIORARI.  332 U.S. 756. 

A PRELIMINARY CLAIM MUST BE MET, THAT THE CASE HAS BECOME MOOT.  THE
SHORT ANSWER TO THE ARGUMENT THAT THE LABOR MANAGEMENT RELATIONS ACT OF
1947, 61 STAT. 136, 149, SEC. 10(H), HAS REMOVED THE LIMITATIONS OF THE
NORRIS-LAGUARDIA ACT UPON THE POWER TO ISSUE INJUNCTIONS AGAINST WHAT
ARE KNOWN AS SECONDARY BOYCOTTS, IS THAT THE LAW HAS BEEN CHANGED ONLY
WHERE AN INJUNCTION IS SOUGHT BY THE NATIONAL LABOR RELATIONS BOARD,
NOT WHERE PROCEEDINGS ARE INSTITUTED BY A PRIVATE PARTY.  THE CLAIM OF
MOOTNESS IS ALSO BASED ON AN AFFIDAVIT STATING THAT AFTER DISMISSAL OF
THE APPEAL BY THE COURT OF APPEALS, THE UNION LIFTED ITS BOYCOTT. 
SINCE THE RECORD DOES NOT SHOW THAT A STAY OF THE INJUNCTION WAS
GRANTED PENDING ACTION IN THIS COURT, WE MUST ASSUME THAT THE UNION'S
ACTION WAS MERELY OBEDIENCE TO THE JUDGMENT NOW HERE FOR REVIEW.  WE
THEREFORE TURN TO THE MERITS. 

THE PETITIONERS ATTACH SIGNIFICANCE TO THREE INCIDENTS FOR THEIR
CLAIM THAT A "LABOR DISPUTE" IS HERE INVOLVED. 

1.  THE CONTROVERSY OVER THE HOUR OF DELIVERY.  THE PETITIONERS CLAIM
THAT THIS WAS A DISPUTE "CONCERNING TERMS OR CONDITIONS OF (THE
DRIVER'S) EMPLOYMENT," THEREBY RAISING A LABOR DISPUTE, "WHETHER OR NOT
THE DISPUTANTS STAND IN THE PROXIMATE RELATION OF EMPLOYER AND
EMPLOYEE."  SEC. 13(C) OF THE NORRIS-LAGUARDIA ACT.  BUT THE RESPONDENT
HAD NOTHING TO DO WITH THE WORKING CONDITIONS OF HINKLE'S EMPLOYEES,
INDIVIDUALLY OR COLLECTIVELY.  HER ONLY DESIRE WAS TO HAVE THE BREAD
COME AT AN HOUR SUITABLE FOR HER BUSINESS, AND SHE HAD NO INTEREST IN
WHAT ARRANGEMENTS HINKLE MADE TO SATISFY THAT DESIRE RATHER THAN RUN
THE RISK OF LOSING HER TRADE - TO HAVE THE BREAD DELIVERED BY THE SAME
DRIVER AT A DIFFERENT HOUR, OR BY ANOTHER DRIVER, BY AN INDEPENDENT
CONTRACTOR, OR THROUGH SOME OTHER RESOURCEFUL CONTRIVANCE.  TO HOLD
THAT UNDER SUCH CIRCUMSTANCES A FAILURE OF TWO BUSINESSMEN TO COME TO
TERMS CREATED A LABOR DISPUTE MERELY BECAUSE WHAT ONE OF THEM SOUGHT
MIGHT HAVE AFFECTED THE WORK OF A PARTICULAR EMPLOYEE OF THE OTHER,
WOULD BE TO TURN ALMOST EVERY CONTROVERSY BETWEEN SELLERS AND BUYERS
OVER PRICE, QUANTITY, QUALITY, DELIVERY, PAYMENT, CREDIT, OR ANY OTHER
BUSINESS TRANSACTION INTO A "LABOR DISPUTE."  CF. COLUMBIA RIVER
PACKERS ASSN. V. HINTON, 315 U.S. 143.  FURTHERMORE, ON THE BASIS OF
WHAT WE HAVE BEFORE US, RESPONDENT'S DISAGREEMENT WITH HINKLE OVER THE
DELIVERY HOUR WAS A DEAD CONTROVERSY, NOT INVOLVED IN THE SUBSEQUENT
DISPUTE WITH THE UNION, OR IN THE BOYCOTT AGAINST WHICH THE INJUNCTION
WAS DIRECTED. 

2.  THE CONTROVERSY OVER THE BILL.  THE PETITIONERS REGARD BOTH THE
QUESTION WHETHER PAYMENT WAS TO BE MADE TO THE DRIVER RATHER THAN TO
HINKLE, AND THE DISAGREEMENT OVER THE DISPUTED SUM OF $12.22, AS A
MATTER CONCERNING THE DRIVER'S WAGES, AND THEREFORE A CONDITION OF HIS
EMPLOYMENT.  BUT, ON THE ALLEGATIONS NOW HERE, RESPONDENT HAD NOTHING
TO DO WITH THE PAYMENT OF THE DRIVER'S WAGES.  THE DELICATESSEN STORE
WAS HINKLE'S CUSTOMER.  ON THE BASIS OF THE ALLEGATIONS TO BE
CONSIDERED, THE DRIVER WOULD RECEIVE HIS PAY WHETHER OR NOT RESPONDENT
PAID HER BILL.  IT IS IMMATERIAL THAT THE DRIVER MAY HAVE BEEN THE
CONDUIT FOR PAYMENT - AS DRIVERS WHO DELIVER PACKAGES NORMALLY ARE. 
THE SAME IS TRUE AS TO THE DISPUTED ITEM OF $12.22.  THE MERE FACT THAT
IT IS A LABOR UNION REPRESENTATIVE RATHER THAN A BILL COLLECTOR WHO,
WITH OR WITHOUT THE CREDITOR'S CONSENT, SEEKS TO OBTAIN PAYMENT OF AN
OBLIGATION, DOES NOT TRANSMUTE A BUSINESS CONTROVERSY INTO A NORRIS
LAGUARDIA "LABOR DISPUTE."  CF. DORCHY V. KANSAS, 272 U.S. 306, 311. 

3. THE NON-UNION ITEM ON SALE IN THE DELICATESSEN STORE.  SALE BY A
MERCHANT OF NON-UNION COMMODITIES IS, NO DOUBT, A TRADITIONAL SOURCE OF
LABOR DISPUTES WITHIN THE SCOPE OF THE NORRIS-LAGUARDIA ACT.  WHILE THE
COMPLAINT ITSELF DID NOT INDICATE THE HISTORY OF THIS MATTER AFTER
ANDRE'S VISIT, THE AFFIDAVIT ATTACHED TO THE "ANSWER TO MOTION TO
DISMISS" SETS FORTH THAT IT WAS NOT A BONA FIDE BONE OF CONTENTION, BUT
A MERE PRETEXT, AND, FURTHER, THAT THE RESPONDENT THEREAFTER WITHDREW
THE ITEM FROM SALE.  WHILE THE CONCLUSION OF THE INCIDENT GIVING RISE
TO A CONTROVERSY MAY NOT NECESSARILY TERMINATE A LABOR DISPUTE (CF.
HUNT V. CRUMBOCH, 325 U.S. 821), WHAT IS BEFORE US LEAVES NO DOUBT THAT
THE SUBSEQUENT BOYCOTT WAS ADDRESSED ONLY TO THE QUESTION OF PAYMENT OF
THE BILL.  PETITIONERS SUGGEST THAT SINCE NO INJUNCTION MAY ISSUE IN A
CASE GROWING OUT OF A LABOR DISPUTE, EXCEPT UPON ORAL TESTIMONY,
DETERMINATION WHETHER THERE IS A LABOR DISPUTE SHOULD NOT REST ON
AFFIDAVITS.  BUT IN THIS CASE THE AFFIDAVITS WERE MERELY A GLOSS ON THE
COMPLAINT AND AS SUCH CONSTITUTED AN INFORMAL AMENDMENT.  THEY SERVE
HERE AS ALLEGATIONS, NOT PROOF. 

THIS CASE WAS DECIDED ON A MOTION TO DISMISS.  ALL THAT WAS
DETERMINED WAS THAT ON THE BASIS OF THE RESPONDENT'S CLAIMS, WHICH THE
PETITIONERS CHOSE NOT TO CONTROVERT, THE NORRIS-LAGUARDIA ACT DID NOT
APPLY.  SINCE THE ONLY ISSUE BEFORE THE COURT BELOW, AND THEREFORE
BEFORE US, WAS THE APPEALABILITY OF THE ORDER FOR AN INJUNCTION
PENDENTE LITE, WHICH IN TURN DEPENDED ON THE APPLICABILITY OF THE
NORRIS-LAGUARDIA ACT, OTHER QUESTIONS RAISED ARE NOT NOW OPEN HERE. 
AFFIRMED. 

FN1  SECTION 13 OF THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, 73, 29
U.S.C. SEC. 113, READS AS FOLLOWS: 

"SEC. 13.  WHEN USED IN THIS ACT, AND FOR THE PURPOSES OF THIS ACT -
(A)  A CASE SHALL BE HELD TO INVOLVE OR TO GROW OUT OF A LABOR DISPUTE
WHEN THE CASE INVOLVES PERSONS WHO ARE ENGAGED IN THE SAME INDUSTRY,
TRADE, CRAFT, OR OCCUPATION; OR HAVE DIRECT OR INDIRECT INTERESTS
THEREIN; OR WHO ARE EMPLOYEES OF THE SAME EMPLOYER; OR WHO ARE MEMBERS
OF THE SAME OR AN AFFILIATED ORGANIZATION OF EMPLOYERS OR EMPLOYEES;
WHETHER SUCH DISPUTE IS (1) BETWEEN ONE OR MORE EMPLOYERS OR
ASSOCIATIONS OF EMPLOYERS AND ONE OR MORE EMPLOYEES OR ASSOCIATIONS OF
EMPLOYEES; (2) BETWEEN ONE OR MORE EMPLOYERS OR ASSOCIATIONS OF
EMPLOYERS AND ONE OR MORE EMPLOYERS OR ASSOCIATIONS OF EMPLOYERS; OR
(3) BETWEEN ONE OR MORE EMPLOYEES OR ASSOCIATIONS OF EMPLOYEES AND ONE
OR MORE EMPLOYEES OR ASSOCIATIONS OF EMPLOYEES; OR WHEN THE CASE
INVOLVES ANY CONFLICTING OR COMPETING INTERESTS IN A 'LABOR DISPUTE'
(AS HEREINAFTER DEFINED) OF 'PERSONS PARTICIPATING OR INTERESTED'
THEREIN (AS HEREINAFTER DEFINED). 

"(B)  A PERSON OR ASSOCIATION SHALL BE HELD TO BE A PERSON
PARTICIPATING OR INTERESTED IN A LABOR DISPUTE IF RELIEF IS SOUGHT
AGAINST HIM OR IT, AND IF HE OR IT IS ENGAGED IN THE SAME INDUSTRY,
TRADE, CRAFT, OR OCCUPATION IN WHICH SUCH DISPUTE OCCURS, OR HAS A
DIRECT OR INDIRECT INTEREST THEREIN, OR IS A MEMBER, OFFICER, OR AGENT
OF ANY ASSOCIATION COMPOSED IN WHOLE OR IN PART OF EMPLOYERS OR
EMPLOYEES ENGAGED IN SUCH INDUSTRY, TRADE, CRAFT, OR OCCUPATION. 

"(C)  THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING
TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR
REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING, MAINTAINING,
CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF EMPLOYMENT,
REGARDLESS OF WHETHER OR NOT THE DISPUTANTS STAND IN THE PROXIMATE
RELATION OF EMPLOYER AND EMPLOYEE. 

"(D)  THE TERM 'COURT OF THE UNITED STATES' MEANS ANY COURT OF THE
UNITED STATES WHOSE JURISDICTION HAS BEEN OR MAY BE CONFERRED OR
DEFINED OR LIMITED BY ACT OF CONGRESS, INCLUDING THE COURTS OF THE
DISTRICT OF COLUMBIA." 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE MURPHY
DISSENT.  MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :















FRANCIS V. SOUTHERN PACIFIC CO., 333 U.S. 445 


NO. 400.  ARGUED FEBRUARY 5, 1948.  - DECIDED MARCH 15, 1948.  - 162
F.2D 813, AFFIRMED. 


1.  BASING JURISDICTION ON DIVERSITY OF CITIZENSHIP, CERTAIN MINOR
CHILDREN SUED AN INTERSTATE RAILROAD IN A FEDERAL COURT IN UTAH TO
RECOVER DAMAGES FOR THE DEATH OF THEIR FATHER, AN EMPLOYEE OF THE
RAILROAD, WHO WAS KILLED IN UTAH WHILE RIDING THE RAILROAD AS AN
INTERSTATE PASSENGER ON A FREE PASS, NOT IN CONNECTION WITH HIS DUTIES
AS AN EMPLOYEE.  THE PASS PROVIDED THAT THE USER ASSUMED ALL RISK OF
INJURY AND ABSOLVED THE RAILROAD FROM ANY LIABILITY THEREFOR.  UNDER
INSTRUCTIONS WITHHOLDING AN ISSUE OF THE RAILROAD'S ORDINARY NEGLIGENCE
AND SUBMITTING ONLY AN ISSUE OF ITS WANTON NEGLIGENCE, THE JURY FOUND
FOR THE RAILROAD.  HELD:  JUDGMENT FOR THE RAILROAD AFFIRMED.  PP. 446
450. 

(A)  IN VIEW OF A SUBSEQUENT DECISION OF THE SUPREME COURT OF UTAH TO
SIMILAR EFFECT, THIS COURT CANNOT SAY THAT THE CIRCUIT COURT OF APPEALS
COMMITTED PLAIN ERROR IN HOLDING THAT DEFENSES WHICH WOULD HAVE BEEN
AVAILABLE IN A SUIT BY THE DECEDENT WERE AVAILABLE IN A SUIT BY THE
HEIRS ON A SEPARATE AND DISTINCT CAUSE OF ACTION CREATED BY UTAH LAW;
AND, THEREFORE, THIS COURT WILL NOT OVERRULE THAT HOLDING UNDER ERIE R.
CO. V. TOMPKINS, 304 U.S. 64.  PP. 447-448. 

(B)  UNDER THE HEPBURN ACT, AS AMENDED BY THE TRANSPORTATION ACT OF
1940, THE RIGHT OF AN EMPLOYEE OF AN INTERSTATE RAILROAD TO RECOVER
DAMAGES FOR INJURIES SUSTAINED WHILE RIDING ON A FREE PASS IS GOVERNED
BY FEDERAL LAW.  PP. 448-450. 

(C)  THE WELL-SETTLED FEDERAL RULE SUSTAINING WAIVERS OF LIABILITY
FOR ORDINARY NEGLIGENCE CONTAINED IN FREE PASSES ISSUED TO EMPLOYEES BY
INTERSTATE RAILROADS HAS BECOME PART OF THE WARP AND WOOF OF THE
HEPBURN ACT, AS AMENDED BY THE TRANSPORTATION ACT OF 1940.  PP. 448
450. 

2.  AFTER A VERDICT HAS BEEN RENDERED IN A CIVIL CASE IN A FEDERAL
COURT, IT IS TOO LATE TO OBJECT FOR THE FIRST TIME THAT THE JURY WAS
SELECTED FROM A PANEL FROM WHICH PERSONS WHO WORK FOR DAILY WAGES WERE
INTENTIONALLY AND SYSTEMATICALLY EXCLUDED.  PP. 450-451. 

FRANCIS ET AL. V. SOUTHERN PACIFIC CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

IN A SUIT BY MINOR CHILDREN OF A RAILROAD EMPLOYEE TO RECOVER DAMAGES
FOR HIS DEATH WHILE TRAVELING ON A FREE PASS AS AN INTERSTATE
PASSENGER, THE CIRCUIT COURT OF APPEALS AFFIRMED A JUDGMENT FOR THE
DEFENDANT.  162 F.2D 813.  THIS COURT GRANTED CERTIORARI.  332 U.S.
835.  AFFIRMED, P. 451. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE THE MINOR CHILDREN OF JACK R. FRANCIS WHO WAS KILLED
WHILE RIDING AS AN INTERSTATE PASSENGER ON ONE OF RESPONDENT'S TRAINS. 
THEY BROUGHT THIS SUIT, ACTING THROUGH THEIR GENERAL GUARDIANS, TO
RECOVER DAMAGES ON ACCOUNT OF HIS DEATH.  JURISDICTION IN THE FEDERAL
COURT WAS FOUNDED ON DIVERSITY OF CITIZENSHIP.  THE TRIAL JUDGE
SUBMITTED TO THE JURY ONLY THE QUESTION OF RESPONDENT'S WANTON
NEGLIGENCE.  THE ERROR ALLEGED IS HIS REFUSAL TO SUBMIT TO THE JURY THE
ISSUE OF ORDINARY NEGLIGENCE.  THE JURY RETURNED A VERDICT FOR
RESPONDENT.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  162 F.2D 813. 

THE CIRCUIT COURT OF APPEALS HELD THAT UTAH LAW CREATES A RIGHT OF
ACTION IN THE HEIRS FOR THE WRONGFUL DEATH OF THE DECEDENT AND THAT THE
ACTION IS DISTINCT FROM ANY WHICH DECEDENT MIGHT HAVE MAINTAINED HAD HE
SURVIVED.  BUT THE COURT HELD THAT THE ACTION IS MAINTAINABLE ONLY
WHERE THE DECEDENT COULD HAVE RECOVERED DAMAGES FOR HIS INJURY IF DEATH
HAD NOT ENSUED.  IN THIS CASE THE DECEDENT, AN EMPLOYEE OF RESPONDENT,
WAS RIDING ON A FREE PASS NOT IN CONNECTION WITH ANY DUTIES HE HAD AS
AN EMPLOYEE BUT AS A PASSENGER ONLY.  THE CIRCUIT COURT OF APPEALS
THEREFORE HELD AS A MATTER OF FEDERAL LAW THAT RESPONDENT WOULD NOT
HAVE BEEN LIABLE TO DECEDENT FOR DAMAGES CAUSED BY ORDINARY NEGLIGENCE,
RELYING ON NORTHERN PACIFIC R. CO. V. ADAMS, 192 U.S. 440.  IT
CONCLUDED THAT RESPONDENT HAD THE SAME DEFENSE AGAINST THE HEIRS.  WE
GRANTED THE PETITION FOR A WRIT OF CERTIORARI TO REEXAMINE THE
RELATIONSHIP BETWEEN LOCAL LAW AND FEDERAL LAW RESPECTING THE LIABILITY
OF INTERSTATE CARRIERS UNDER FREE PASSES. 

IN VAN WAGONER V. UNION PAC. R. CO.,  - UTAH - , 186 P.2D 293,
DECIDED AFTER THE PETITION FOR CERTIORARI IN THE PRESENT CASE WAS
FILED, THE HEIRS SUED TO RECOVER DAMAGES FOR THE DEATH OF THE DECEDENT
IN A GRADE-CROSSING ACCIDENT.  THE COURT HELD THAT A DEFENSE OF
CONTRIBUTORY NEGLIGENCE WHICH WOULD HAVE BARRED RECOVERY BY THE
DECEDENT LIKEWISE BARS THE HEIRS.  IN VIEW OF THIS RULING BY THE UTAH
SUPREME COURT WE CANNOT SAY THAT THE CIRCUIT COURT OF APPEALS COMMITTED
PLAIN ERROR IN HOLDING THAT RESPONDENT HAD THE SAME DEFENSES AGAINST
PETITIONERS AS IT WOULD HAVE HAD AGAINST THE DECEDENT.  FN1  YET IT
REQUIRES SUCH SHOWING OF ERROR FOR US TO OVERRULE THE LOWER COURTS IN
THEIR APPLICATIONS OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64.  SEE PALMER
V. HOFFMAN, 318 U.S. 109, 118; MACGREGOR V. STATE MUTUAL CO., 315 U.S.
280; STEELE V. GENERAL MILLS, 329 U.S. 433, 439.  CF. WICHITA CO. V.
CITY BANK, 306 U.S. 103. 

THE FREE PASS IN THE PRESENT CASE STATED THAT "THE USER ASSUMES ALL
RISK OF INJURY TO PERSON OR PROPERTY AND OF LOSS OF PROPERTY WHETHER BY
NEGLIGENCE OR OTHERWISE, AND ABSOLVES THE ISSUING COMPANY  ...  FROM
ANY LIABILITY THEREFOR."  IN NORTHERN PACIFIC R. CO. V. ADAMS, SUPRA, A
SIMILAR PROVISION IN A FREE PASS WAS SUSTAINED AS A DEFENSE TO AN
ACTION BROUGHT UNDER AN IDAHO STATUTE BY THE HEIRS OF A PASSENGER.  FN2
THAT WAS IN 1904.  THE ADAMS DECISION WAS SOON FOLLOWED BY BOERING V.
CHESAPEAKE BEACH R. CO., 193 U.S. 442.  THEN IN 1906 CAME THE HEPBURN
ACT WHICH UNDER PAIN OF A CRIMINAL PENALTY PROHIBITED A COMMON CARRIER
SUBJECT TO THE ACT FROM ISSUING A "FREE PASS" EXCEPT, INTER ALIA, TO
"ITS EMPLOYEES AND THEIR FAMILIES."  34 STAT. 584, 49 U.S.C. SEC.
1(7).  THEREAFTER IN 1914 THE COURT HELD THAT THE RULE OF THE ADAMS
CASE WAS APPLICABLE UNDER THE FEDERAL STATUTE AND THAT THE "FREE PASS"
WAS NONETHELESS A GRATUITY THOUGH ISSUED TO AN EMPLOYEE OF THE
CARRIER.  CHARLESTON & W.C.R. CO. V. THOMPSON, 234 U.S. 576.  KANSAS
CITY SO. R. CO. V. VAN ZANT, 260 U.S. 459, FOLLOWED IN 1923 AND HELD
THAT THE LIABILITY OF AN INTERSTATE CARRIER TO ONE RIDING ON A "FREE
PASS" WAS DETERMINED NOT BY STATE LAW BUT BY THE HEPBURN ACT.  THE
COURT SAID, P. 468, "THE PROVISION FOR PASSES, WITH ITS SANCTION IN
PENALTIES, IS A REGULATION OF INTERSTATE COMMERCE TO THE COMPLETION OF
WHICH THE DETERMINATION OF THE EFFECT OF THE PASSES IS NECESSARY.  WE
THINK, THEREFORE, FREE PASSES IN THEIR ENTIRETY ARE TAKEN CHARGE OF,
NOT ONLY THEIR PERMISSION AND USE, BUT THE LIMITATIONS AND CONDITIONS
UPON THEIR USE.  OR TO PUT IT ANOTHER WAY, AND TO SPECIALIZE, THE
RELATION OF THEIR USERS TO THE RAILROAD WHICH ISSUED THEM, THE FACT AND
MEASURE OF RESPONSIBILITY THE RAILROAD INCURS BY THEIR ISSUE, AND THE
EXTENT OF THE RIGHT THE PERSON TO WHOM ISSUED ACQUIRES, ARE TAKEN
CHARGE OF." 

FOR YEARS THIS HAS BEEN THE ACCEPTED AND WELL-SETTLED CONSTRUCTION OF
THE HEPBURN ACT.  DURING THAT LONG PERIOD IT STOOD UNCHALLENGED IN THIS
COURT AND, SO FAR AS WE CAN ASCERTAIN, IN CONGRESS TOO.  THEN CAME THE
TRANSPORTATION ACT OF 1940, 54 STAT. 898, 900, WITH ITS COMPREHENSIVE
REVISION OF THE STATUTES OF WHICH THE HEPBURN ACT WAS PART.  AMENDMENTS
WERE MADE TO THE FREE-PASS PROVISION OF THE ACT TO PERMIT FREE
TRANSPORTATION OF ADDITIONAL CLASSES OF PERSONS.  FN3  NO OTHER
AMENDMENTS TO THE FREE-PASS PROVISION WERE MADE.  IT WAS REENACTED
WITHOUT FURTHER CHANGE OR QUALIFICATION.  IN VIEW OF THIS HISTORY WE DO
NOT REACH THE QUESTION OF WHAT CONSTRUCTION WE WOULD GIVE THE HEPBURN
ACT WERE WE WRITING ON A CLEAN SLATE.  THE EXTENT TO WHICH WE SHOULD
RELY UPON SUCH HISTORY IS ALWAYS A DIFFICULT QUESTION WHICH HAS
FREQUENTLY TROUBLED THE COURT IN MANY FIELDS OF LAW AND WITH VARIED
RESULTS.  SEE GIROUARD V. UNITED STATES, 328 U.S. 61, 69, 70; HELVERING
V. HALLOCK, 309 U.S. 106, 119, 123.  BUT IN THE SETTING OF THIS CASE,
WE FIND THE LONG AND WELL-SETTLED CONSTRUCTION OF THE ACT PLUS
REENACTMENT OF THE FREE-PASS PROVISION WITHOUT CHANGE OF THE
ESTABLISHED INTERPRETATION MOST PERSUASIVE INDICATIONS THAT THE RULE OF
THE ADAMS, THOMPSON, AND VAN ZANT CASES HAS BECOME PART OF THE WARP AND
WOOF OF THE LEGISLATION.  SEE MISSOURI V. ROSS, 299 U.S. 72, 75; UNITED
STATES V. ELGIN, J. & E.R. CO., 298 U.S. 492, 500; UNITED STATES V.
RYAN, 284 U.S. 167, 175; HECHT V. MALLEY, 265 U.S. 144, 153; ELECTRIC
BATTERY CO. V. SHIMADZU, 307 U.S. 5, 14.  ANY STATE LAW WHICH CONFLICTS
WITH THIS FEDERAL RULE GOVERNING INTERSTATE CARRIERS MUST THEREFORE
GIVE WAY BY VIRTUE OF THE SUPREMACY CLAUSE.  FOR IT WAS HELD IN THE VAN
ZANT CASE THAT THE FREE-PASS PROVISION OF THE HEPBURN ACT WAS A
REGULATION OF INTERSTATE COMMERCE "TO THE COMPLETION OF WHICH THE
DETERMINATION OF THE EFFECT OF THE PASSES IS NECESSARY."  THUS THERE IS
NO ROOM FOR THE APPLICATION OF ERIE R. CO. V. TOMPKINS, SUPRA, ON THIS
PHASE OF THE CASE.  THE VAN ZANT CASE AROSE NOT IN A LOWER FEDERAL
COURT BUT IN A STATE COURT; THE HOLDING WAS NOT A DECLARATION OF A
"GENERAL COMMERCIAL LAW" BUT A RULING THAT "THE INCIDENTS AND
CONSEQUENCES" OF THE PASS WERE CONTROLLED BY THE FEDERAL ACT "TO THE
EXCLUSION OF STATE LAWS AND STATE POLICIES."  260 U.S. AT 469. 

PETITIONERS CONTEND THAT THE JURY PANEL FROM WHICH THE JURY IN THIS
CASE WAS SELECTED WAS DRAWN CONTRARY TO THIEL V. SOUTHERN PACIFIC CO.,
328 U.S. 217.  WE DO NOT STOP TO INQUIRE INTO THE MERITS OF THE CLAIM. 
THE OBJECTION WAS MADE FOR THE FIRST TIME IN THE MOTION FOR A NEW
TRIAL.  IT SEEMS TO HAVE BEEN AN AFTERTHOUGHT, AS THE THIEL CASE WAS
DECIDED A FEW WEEKS AFTER THE VERDICT OF THE JURY IN THE PRESENT CASE. 
IF NOT AN AFTERTHOUGHT, IT IS AN EFFORT TO RETRIEVE A POSITION THAT WAS
FORSAKEN WHEN IT WAS DECIDED TO TAKE A GAMBLE ON THE EXISTING JURY
PANEL.  IN EITHER CASE THE OBJECTION COMES TOO LATE.  CF. QUEENAN V.
OKLAHOMA, 190 U.S. 548, 552.  AFFIRMED. 

FN1  THE UTAH SUPREME COURT IN ITS ORIGINAL OPINION IN THE VAN
WAGONER CASE STATED THAT THE RIGHT GRANTED THE HEIRS IS A "RIGHT TO
PROCEED AGAINST THE WRONGDOER SUBJECT TO THE DEFENSES AVAILABLE AGAINST
THE DECEASED, HAD HE LIVED AND PROSECUTED THE SUIT."  ON PETITION FOR
REHEARING THAT STATEMENT WAS ELIMINATED AND THE FOLLOWING ONE
SUBSTITUTED:  "UNDER THE FACTS OF THIS CASE THE RIGHT TO PROCEED
AGAINST THE WRONGDOER IS SUBJECT TO THE DEFENSE OF CONTRIBUTORY
NEGLIGENCE."  189 P.2D 701. 

THAT RULING IS NO DEVIATION FROM THE UTAH LAW AS CONSTRUED BY THE
LOWER FEDERAL COURTS.  IT SUPPORTS THE VIEW OF UTAH LAW TAKEN BY THE
CIRCUIT COURT OF APPEALS AND IS IN LINE WITH THE WEIGHT OF AUTHORITY IN
THE STATE COURTS.  SEE MELLON V. GOODYEAR, 277 U.S. 335, 344-345. 
HENCE WE DO NOT DEEM IT APPROPRIATE TO REMAND THE CASE FOR
CONSIDERATION OF THE INTERVENING DECISION IN THE VAN WAGONER CASE.  CF.
HUDDLESTON V. DWYER, 322 U.S. 232. 

FN2  THE COURT SAID, PP. 453-454: 

"THE RAILWAY COMPANY WAS NOT AS TO ADAMS A CARRIER FOR HIRE.  IT
WAIVED ITS RIGHT AS A COMMON CARRIER TO EXACT COMPENSATION.  IT OFFERED
HIM THE PRIVILEGE OF RIDING IN ITS COACHES WITHOUT CHARGE IF HE WOULD
ASSUME THE RISKS OF NEGLIGENCE.  HE WAS NOT IN THE POWER OF THE COMPANY
AND OBLIGED TO ACCEPT ITS TERMS.  THEY STOOD ON AN EQUAL FOOTING.  IF
HE HAD DESIRED TO HOLD IT TO ITS COMMON LAW OBLIGATIONS TO HIM AS A
PASSENGER, HE COULD HAVE PAID HIS FARE AND COMPELLED THE COMPANY TO
RECEIVE AND CARRY HIM.  HE FREELY AND VOLUNTARILY CHOSE TO ACCEPT THE
PRIVILEGE OFFERED, AND HAVING ACCEPTED THAT PRIVILEGE CANNOT REPUDIATE
THE CONDITIONS.  IT WAS NOT A BENEVOLENT ASSOCIATION, BUT DOING A
RAILROAD BUSINESS FOR PROFIT; AND FREE PASSENGERS ARE NOT SO MANY AS TO
INDUCE NEGLIGENCE ON ITS PART.  SO FAR AS THE ELEMENT OF CONTRACT
CONTROLS, IT WAS A CONTRACT WHICH NEITHER PARTY WAS BOUND TO ENTER
INTO, AND YET ONE WHICH EACH WAS AT LIBERTY TO MAKE, AND NO PUBLIC
POLICY WAS VIOLATED THEREBY." 

FN3  SEE H.R. REP. 2016, 76TH CONG., 3D SESS., P. 59. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE MURPHY AND MR. JUSTICE
RUTLEDGE JOIN, DISSENTING. 

UTAH LAW PERMITS RECOVERY AGAINST A RAILROAD WHEN ITS NEGLIGENCE IS
RESPONSIBLE FOR A PASSENGER'S DEATH, WHETHER THAT PASSENGER RIDES ON A
FREE PASS CONTAINING AN ATTEMPTED WAIVER OF LIABILITY FOR NEGLIGENCE OR
PAYS HIS FARE IN MONEY.  BECAUSE I BELIEVE UTAH LAW SHOULD GOVERN THIS
CASE I WOULD REVERSE THIS JUDGMENT.  BUT I THINK AFFIRMANCE OF THE
JUDGMENT IS EQUALLY WRONG WHETHER THE CASE IS TO BE CONSIDERED GOVERNED
WHOLLY BY UTAH LAW, BY FEDERAL LAW, OR IN PART BY BOTH. 

NO ACT OF CONGRESS HAS ENTRENCHED UPON THE LONG-EXISTING POWER OF ALL
THE STATES, INCLUDING UTAH, TO PROVIDE DAMAGES FOR SUCH WRONGFUL DEATHS
AS THIS COMPLAINT ALLEGED.  IF THERE IS HERE ANY BARRIER TO RECOVERY
BASED UPON FEDERAL LAW, IT IS GROUNDED IN JUDGE-MADE "GENERAL
COMMERCIAL LAW" ANNOUNCED BY THIS COURT IN THE YEAR 1904 IN NORTHERN
PAC. R. CO. V. ADAMS, 192 U.S. 440.  THE RULE LAID DOWN IN THAT CASE
WAS THAT A RAILROAD COULD BY STIPULATION VALIDLY EXEMPT ITSELF FROM
LIABILITY UNDER A STATE STATUTE FOR NEGLIGENT INJURIES INFLICTED WITHIN
THAT STATE UPON PASSENGERS CARRIED WHOLLY GRATUITOUSLY.  CREATION OF
THE 1904 ADAMS RULE BY THIS COURT WAS UNDER AUTHORITY OF A POWER THEN
EXERCISED, BUT REPUDIATED IN 1938 IN ERIE R. CO. V. TOMPKINS, 304 U.S.
64, WHEREBY FEDERAL COURTS, IN PASSING UPON QUESTIONS OF STATE LAW UPON
WHICH THERE WAS NO CONTROLLING STATE LEGISLATIVE ENACTMENT, DECLARED
THE "GENERAL COMMERCIAL LAW" OF A STATE ON THE FEDERAL COURT'S NOTION
OF WISE PUBLIC POLICY, INDEPENDENTLY OF STATE COURT DECISIONS. 

THIS COURT FOLLOWED THE ADAMS "GENERAL COMMERCIAL LAW" STATE RULE
SEVERAL TIMES BETWEEN ITS CREATION IN 1904 AND REPUDIATION OF THIS
COURT'S POWER TO CREATE STATE LAW IN 1938 - THE LAST APPLICATION OF THE
ADAMS RULE HAVING BEEN MADE BY THIS COURT IN 1923 IN KANSAS CITY SO. R.
CO. V. VAN ZANT, 260 U.S. 459.  THAT DECISION STATED THAT AN ACT OF
CONGRESS HAD MADE THE EFFECT OF THE CONDITIONS IN AN EMPLOYEE'S PASS A
FEDERAL QUESTION, BUT DECIDED THAT "FEDERAL" QUESTION ENTIRELY BY
RELIANCE ON THE OLD ADAMS "GENERAL COMMERCIAL LAW" STATE RULE.  SINCE
THE ERIE-TOMPKINS DECISION IN 1938, AND IN FACT SINCE 1923, THE ADAMS
RULE HAS NEVER BEEN APPLIED BY THIS COURT UNTIL TODAY.  NOW IT IS
APPLIED NOT AS A FEDERALLY CREATED STATE RULE OF "GENERAL COMMERCIAL
LAW" BUT AS A JUDICIALLY CREATED POST-ERIE-TOMPKINS RULE OF PURELY
FEDERAL LAW.  WHILE THIS COURT MAY LOOK TO THE 1904 PRE-ERIE-TOMPKINS
STATE RULE OF GENERAL COMMERCIAL LAW "AS A CONVENIENT SOURCE OF
REFERENCE FOR FASHIONING" A POST-ERIE-TOMPKINS FEDERAL RULE, CLEARFIELD
TRUST CO. V. UNITED STATES, 318 U.S. 363, 367, IT SHOULD NOT, AS THE
COURT DOES HERE, AUTOMATICALLY ACCEPT THE OLD STATE RULE AS A FEDERAL
RULE, WITHOUT ANY APPRAISAL OF ITS SOUNDNESS IN RELATION TO PRESENT DAY
CONDITIONS.  NO SUCH APPRAISAL HAS BEEN MADE HERE.  THE OLD ADAMS RULE,
QUESTIONABLE ENOUGH IN ITS 1904 ENVIRONMENT, SHOULD IN MY JUDGMENT BE
CRITICALLY EXAMINED AND THEN ABANDONED AS WHOLLY INCONGRUOUS WITH THE
ACCEPTED PATTERN OF OUR MODERN SOCIETY AS EMBODIED IN LEGISLATIVE
ENACTMENTS.    FURTHERMORE, THE 1904 ADAMS RULE, EVEN IN ITS ORIGINAL
NARROW SCOPE, MARKED A DEPARTURE FROM THE PHILOSOPHY OF THIS COURT'S
PREVIOUS DECISIONS.  ONE SUBSEQUENT LINE OF THE COURT'S DECISIONS HAS
TENDED TO LIMIT THE 1904 RULE'S SCOPE WHILE ANOTHER HAS TENDED TO
EXPAND IT.  TODAY'S OPINION EXPANDS THAT RULE BEYOND ANY POINT IT HAS
BEFORE REACHED.  AS INDICATED, I THINK THE ADAMS "GENERAL COMMERCIAL
LAW" STATE RULE IS AN OBSTACLE TO THE EXECUTION OF PRESENT
CONGRESSIONAL POLICIES EMBODIED IN STATUTES.  THAT OBSTACLE I THINK
SHOULD BE REMOVED BY THIS COURT WHICH FASHIONED THE OLD RULE.  IN ANY
EVENT, I CERTAINLY WOULD NOT EXPAND THE OLD ADAMS RULE TO COVER THE
FACTS OF THIS CASE.                                  I. 

IT SHOULD BE NOTED AT THE OUTSET THAT TORT LAW HAS BEEN FASHIONED
LARGELY BY JUDGES, TOO LARGELY ACCORDING TO THE IDEAS OF MANY.  BUT IF
JUDGES MAKE RULES OF LAW, IT WOULD SEEM THAT THEY SHOULD KEEP THEIR
MINDS OPEN IN ORDER TO EXERCISE A CONTINUING AND HELPFUL SUPERVISION
OVER THE MANNER IN WHICH THEIR LAWS SERVE THE PUBLIC.  EXPERIENCE MIGHT
PROVE THAT A RULE CREATED BY JUDGES SHOULD NEVER HAVE BEEN CREATED AT
ALL, OR THAT THEIR RULE, THOUGH ORIGINALLY SOUND, HAD BECOME WHOLLY
UNSUITED TO NEW PHYSICAL AND SOCIAL CONDITIONS DEVELOPED BY A DYNAMIC
SOCIETY.  A REVALUATION OF SOCIAL AND ECONOMIC INTERESTS AFFECTED BY
THE OLD RULE MIGHT REVEAL THE UNWISDOM OF ITS EXPANSION OR IMPERATIVELY
REQUIRE ITS REVISION OR ABANDONMENT. 

THE COURT'S UNCRITICAL RELIANCE TODAY ON THE 1904 JUDICIALLY CREATED
RULE, WHICH TO ME IS BOTH UNDESIRABLE AND UNCERTAIN IN SCOPE,
EMPHASIZES ONE OF THE INHERENT DANGERS IN JUDGE-MADE LAWS POINTED OUT
BY AN EMINENT LEGAL COMMENTATOR IN THE FIELD OF TORT LAW.  PROFESSOR
BOHLEN, IN HIS STUDIES IN THE LAW OF TORTS, 610-611(1926), HAD THIS TO
SAY ABOUT "DANGERS" OF COURT-MADE TORT STANDARDS:  "THE FIRST IS THAT
OF THE UNDUE RIGIDITY WHICH RESULTS FROM THE UNFORTUNATE FEELING, THAT
ANY DECISION OF A COURT CREATES A RULE OF LAW WHICH, AS LAW, IS
ABSOLUTELY AND ETERNALLY VALID.  ...  TO REGARD A STANDARD OF CONDUCT
AS FIXED AND IMMUTABLE BECAUSE JUDICIALLY ANNOUNCED, IS TO CREATE A
STANDARD WHICH, HOWEVER JUST OR EVEN NECESSARY AT THE TIME, MAY BECOME
A SCANDAL AND A HISSING IN THE FUTURE."  FN1

                                 II. 

IN 1944, JACK FRANCIS, AGED 30, HIS WIFE, AGED 29, AND THEIR THREE
CHILDREN, AGED 3, 6, AND 8, LIVED IN CARLIN, NEVADA.  JACK WAS THEN AND
HAD BEEN FOR SEVERAL YEARS A CONDUCTOR AND BRAKEMAN FOR THE RESPONDENT,
SOUTHERN PACIFIC COMPANY.  HIS FATHER, RAY E. FRANCIS, HAD SERVED THE
RESPONDENT IN THE SAME CAPACITY FOR 35 YEARS.  THE ELDER FRANCIS AND
HIS WIFE LIVED IN OGDEN, UTAH, AND THE YOUNG FRANCIS FAMILY VISITED
THEM CHRISTMAS WEEK.  IN THE EARLY MORNING OF DECEMBER 31, JACK AND HIS
WIFE BOARDED A SOUTHERN PACIFIC TRAIN AT OGDEN BOUND FOR CARLIN.  THEY
TOOK SEATS IN THE REAR CAR.  BOTH HAD PASSES GRANTED BY THE RESPONDENT
BECAUSE THE HUSBAND WAS ITS EMPLOYEE.  EACH PASS CONTAINED A PRINTED
STIPULATION THAT THE USER ASSUMED "ALL RISK OF INJURY TO PERSON" AND
ABSOLVED THE RAILROAD "FROM ANY LIABILITY THEREFOR."  A SHORT DISTANCE
OUT OF OGDEN, WHILE THE TRAIN WAS STILL IN UTAH, AN ENGINE AND TRAIN OF
CARS CRASHED INTO THE REAR CAR.  HUSBAND AND WIFE WERE KILLED. 

THIS IS ONE OF TWO SUITS BROUGHT AGAINST THE RAILROAD BY THE
GRANDPARENTS AS GUARDIANS OF THE THREE CHILDREN TO RECOVER DAMAGES ON
ACCOUNT OF THEIR PARENTS' DEATHS.  THE ACTIONS WERE BROUGHT UNDER A
UTAH LAW SINCE CONGRESS HAS NEVER PASSED ANY ACT WHICH PROVIDES
REMEDIES AGAINST RAILROADS FOR NEGLIGENTLY INJURING OR KILLING RAILROAD
PASSENGERS, EVEN INTERSTATE PASSENGERS ON INTERSTATE RAILROADS. 
WHETHER PASSENGERS OR THEIR DEPENDENTS SHALL HAVE A RIGHT OF ACTION
UNDER SUCH CIRCUMSTANCES HAS BEEN A QUESTION LEFT BY CONGRESS FOR
REGULATION BY THE STATE IN WHICH THE INJURY OR DEATH OCCURRED.  SEE,
E.G., CHICAGO, R.I. & P.R. CO. V. MAUCHER, 248 U.S. 359, 363.  SEE ALSO
CASES COLLECTED IN 76 A.L.R. 428-435. 

FOR MANY YEARS THE STATES DID NOT GENERALLY AUTHORIZE SUITS FOR
WRONGFUL DEATH.  THEIR OMISSION OF SUCH REMEDIES WAS DUE TO TRADITIONAL
"COMMON LAW" HOSTILITY TO RECOVERIES FOR DEATH.  THIS HOSTILITY
PROVOKED MUCH LAY CRITICISM, ECHOES OF WHICH MAY BE FOUND IN THE CASES
CITED BELOW.  FN2 ABOUT THE MIDDLE OF THE LAST CENTURY, BECAUSE OF
"DISSATISFACTION WITH THE ARCHAISMS OF THE LAW," STATE LEGISLATURES
BEGAN TO ABOLISH THE COMMON LAW RULE BY SPECIFICALLY AUTHORIZING SUITS
FOR WRONGFUL DEATH AND NOW ALL STATES HAVE SUCH STATUTES.  VAN BEECK V.
SABINE TOWING CO., 300 U.S. 342, 346, 350-351.  SO STRONG IS UTAH'S
ANTIPATHY TO THE COMMON LAW ATTITUDE THAT ART. XVI, SEC. 5, OF THE UTAH
CONSTITUTION FORBIDS THE STATE LEGISLATURE TO ABROGATE THE RIGHT TO
RECOVER DAMAGES FOR WRONGFUL DEATH.  THIS SUIT FOR DAMAGES WAS BROUGHT
UNDER THE UTAH STATUTE ENACTED IN ACCORDANCE WITH THAT STATE
CONSTITUTIONAL POLICY.  UTAH CODE ANN. SEC. 104-3-11(1943).  AND IN A
CASE INVOLVING A FEDERAL WRONGFUL DEATH STATUTE THIS COURT HAS SAID "IT
WOULD BE A MISFORTUNE IF A NARROW OR GRUDGING PROCESS OF CONSTRUCTION
WERE TO EXEMPLIFY AND PERPETUATE THE VERY EVILS TO BE REMEDIED" BY SUCH
STATUTES.  VAN BEECK V. SABINE TOWING CO., SUPRA AT 350-351. 

ONE COUNT OF THE COMPLAINT HERE ALLEGED ORDINARY NEGLIGENCE; THE
OTHER ALLEGED GROSS NEGLIGENCE.  EITHER TYPE OF NEGLIGENCE WOULD
JUSTIFY A RECOVERY UNDER THE UTAH STATUTE.  AND SINCE THE COMPLAINT
CLAIMED RECOVERY UNDER THE UTAH STATUTE, LIABILITY, IF ANY, SPRINGS
FROM THAT STATUTE.  SEE SPOKANE & I.E.R. CO. V. WHITLEY, 237 U.S. 487,
494-495.  UNDER UTAH LAW THE RAILROAD HERE COULD NOT HAVE DEFEATED
LIABILITY IN THIS CASE ON THE GROUND THAT THE PASSES STIPULATED THAT
THE USERS WOULD ASSUME THE RISK OF INJURY.  THE TRIAL JUDGE CHARGED THE
JURY, HOWEVER, THAT BECAUSE OF OPINIONS OF THIS COURT THE PASS
EXEMPTION STIPULATION WAS VALID AND BARRED RECOVERY "FOR JUST ORDINARY
NEGLIGENCE."  THE CIRCUIT COURT OF APPEALS AFFIRMED ON THE BASIS OF
THIS COURT'S ADAMS AND VAN ZANT CASES.  162 F.2D 813, 816.  THE ACTION
OF THE TWO LOWER COURTS WAS IN ACCORDANCE WITH THEIR INTERPRETATION OF
THIS COURT'S OPINIONS NOTWITHSTANDING THE FACT THAT LONG AGO THE UTAH
SUPREME COURT, IN DECLARING STATE LAW, REJECTED SUCH A CONTENTION IN
THE FOLLOWING LANGUAGE:  "IT IS ARGUED THAT EVEN IF THE TICKET WAS A
FREE PASS GRATUITOUSLY POSSESSED WITH THE CONDITIONS PRINTED THEREON,
STILL THE DEFENDANT COULD NOT ESCAPE LIABILITY FOR ITS NEGLIGENCE.  WE
BELIEVE THE PLAINTIFF IS CORRECT IN THIS CONTENTION."  WILLIAMS V.
OREGON SHORT LINE R. CO., 18 UTAH 210, 221, 54 P. 991, 994(1898).  SEE
ALSO HOUTZ V. UNION PACIFIC R. CO., 33 UTAH 175, 179, 93 P. 439, 441;
HANSEN V. OREGON SHORT LINE R. CO., 55 UTAH 577, 581-582, 188 P. 852,
854.  THIS COURT HAS ITSELF RECOGNIZED AND ACTED ON THE FACT THAT IT IS
THE LAW OF UTAH THAT "WHEN A COMMON CARRIER ACCEPTS A PERSON AS A
PASSENGER, HE IS NOT PERMITTED TO DENY THAT HE OWES TO HIM THE DUTY OF
DILIGENCE, PRUDENCE, AND SKILL, WHICH, AS CARRYING ON A PUBLIC
EMPLOYMENT, HE OWES TO ALL HIS PASSENGERS; AND THAT HE CANNOT ESCAPE
LIABILITY FOR A NEGLIGENT PERFORMANCE OF THAT DUTY RESULTING IN INJURY
BY URGING THAT THE PASS OR COMMISSION WAS ISSUED, OR THE GRATUITOUS
PASSAGE PERMITTED, BY HIM, IN VIOLATION OF LAW."  SOUTHERN PAC. CO. V.
SCHUYLER, 227 U.S. 601, 609-610.  FN3 

IN THE SCHUYLER CASE THIS COURT SUSTAINED A UTAH JUDGMENT UNDER THE
UTAH WRONGFUL DEATH STATUTE, WHICH JUDGMENT PERMITTED RECOVERY FOR
DEATH OF A "GRATUITOUS" PASSENGER KILLED WHILE RIDING FREE, ALTHOUGH
ASSUMING HE WAS NOT A MEMBER OF A GROUP TO WHOM THE CARRIER MIGHT
LAWFULLY ISSUE PASSES UNDER THE HEPBURN ACT.  THE SCHUYLER CASE HELD
THAT THE HEPBURN ACT DID NOT DEPRIVE SCHUYLER, WHO VIOLATED IT, "OF THE
BENEFIT AND PROTECTION OF THE LAW OF THE STATE," BECAUSE "SUCH A
VIOLATOR" WAS "A HUMAN BEING, OF WHOSE SAFETY THE PLAINTIFF IN ERROR
(RAILROAD) HAD UNDERTAKEN THE CHARGE."  JACK FRANCIS AND HIS WIFE WERE
NOT VIOLATORS OF THE HEPBURN ACT OR ANY OTHER ACT, FEDERAL OR STATE. 
EACH OF THEM "WAS A HUMAN BEING OF WHOSE SAFETY THE RAILROAD HAD TAKEN
CHARGE."  BUT BY TODAY'S DECISION THEIR CHILDREN ARE DENIED THE BENEFIT
OF UTAH'S LAW.  A FEDERAL RULE OF LAW IS SAID TO COMPEL THIS COURT TO
BAR RECOVERY UNDER UTAH'S STATUTE. 

            III. 

WHAT IS THIS FEDERAL RULE OF LAW?  WHERE DID A RULE EMANATE WHICH
TODAY CONSTRAINS THIS COURT, WITHOUT APPRAISAL OF THE RULE'S SCOPE OR
MERITS, TO DENY THESE CHILDREN A RIGHT TO RECOVER DAMAGES FROM A
RAILROAD THAT NEGLIGENTLY KILLED THEIR PARENTS?  I SAY "NEGLIGENTLY
KILLED" BECAUSE THAT MUST BE ASSUMED SINCE THE COURT AFFIRMS A JUDGMENT
AGAINST THE CHILDREN IN A CASE WHERE THE JURY WAS DENIED A RIGHT TO
AWARD DAMAGES FOR A KILLING CAUSED BY THE "ORDINARY NEGLIGENCE" OF THE
RAILROAD. 

THE COURT POINTS TO NO RECORDS AND I CAN FIND NOT A SINGLE SHRED OF
EVIDENCE THAT CONGRESS HAS EVER DIRECTLY OR INDIRECTLY, EXPLICITLY OR
IMPLIEDLY, THROUGH THE HEPBURN ACT, OR THROUGH ANY OTHER ACT,
AUTHORIZED RAILROADS TO CONTRACT AGAINST LIABILITY FOR THEIR NEGLIGENCE
WHICH RESULTS IN THE INJURY OR DEATH OF A RAILROAD EMPLOYEE OR ANY
OTHER PERSON LEGALLY RIDING ON A RAILROAD PASS.  THE ORIGINAL RULE
FOLLOWED IN AN EXPANDED FORM BY THE COURT TODAY IS ACTUALLY A JUDICIAL
PRODUCT OF THE OLD DAYS OF SWIFT V. TYSON, 16 PET. 1(1842), DAYS IN
WHICH FEDERAL COURTS INVOKED "A TRANSCENDENTAL BODY OF LAW OUTSIDE OF
ANY PARTICULAR STATE  ...  USING THEIR INDEPENDENT JUDGMENT AS TO WHAT
IT WAS."  HOLMES, J., DISSENTING, BLACK & WHITE TAXI.  CO. V. BROWN &
YELLOW TAXI.  CO., 276 U.S. 518, 533. 

AS ALREADY POINTED OUT, OUR DECISION IN ERIE R. CO. V. TOMPKINS,
SUPRA, REPUDIATED IN TOTO THE OLD SWIFT V. TYSON, "TRANSCENDENTAL" OR
"GENERAL COMMERCIAL LAW" POWER OF FEDERAL COURTS.  BUT AS I SEE THIS
CASE, THE COURT NOW PERPETUATES AND STRENGTHENS THE OLD RULE BASED ON
THE REPUDIATED SWIFT V. TYSON DOCTRINE, AND THE RULE APPLIED TODAY
RESTS ON NO OTHER FOUNDATION THAN A COMPLETELY UNCRITICAL ADOPTION OF
THIS COURT'S 1904 "INDEPENDENT JUDGMENT."  THAT JUDGMENT HELD IT TO BE
BAD PUBLIC POLICY, INDEED, OFFENSIVE TO THE COURT'S "MORAL SENSE," FOR
A STATE TO PROVIDE THAT AN INJURED PASSENGER WHO RODE ON A WHOLLY
GRATUITOUS AND GUEST BASIS COULD RECOVER DAMAGES IF A RAILROAD HAD
CAUTIOUSLY STIPULATED IN ADVANCE THAT SUCH A FREE PASSENGER MUST ASSUME
THE RISKS OF RAILROAD NEGLIGENCE.  AN INVESTIGATION OF THE EVOLUTION OF
THE "RULE" FROM ITS 1904 BEGINNING AND APPLICATION TO ITS MUCH BROADER
APPLICATION TODAY WILL DEMONSTRATE, I BELIEVE, THAT IT IS ROOTED NOW,
AS IN 1904, IN NOTHING BUT THE ORIGINAL "TRANSCENDENTAL GENERAL LAW"
SOURCE. 

      IV. 

THE BACKGROUND OF THE 1904 RULE THROWS LIGHT ON ITS JUDICIAL "GENERAL
LAW" ORIGIN.  IN 1852 THIS COURT WAS UNABLE TO FIND ANY DIFFERENCE
BETWEEN THE KIND OF DUTY OWED BY A RAILROAD TO ITS PAYING AND NON
PAYING PASSENGERS; "PUBLIC POLICY AND SAFETY" WERE HELD TO REQUIRE THAT
A RAILROAD EXERCISE "THE GREATEST POSSIBLE CARE AND DILIGENCE" FOR THE
SAFETY OF ALL PASSENGERS, AND ANY LESS MEASURE OF CARE ENTITLED AN
INJURED PASSENGER TO RECOVER.  PHILADELPHIA & READING R. CO. V. DERBY,
14 HOW.  468, 485-486.  FN4  THIS PRINCIPLE WAS REAFFIRMED THE NEXT
YEAR IN A WATER CARRIAGE CASE "AS RESTING, NOT ONLY ON PUBLIC POLICY,
BUT ON SOUND PRINCIPLES OF LAW."  THE STEAMBOAT NEW WORLD V. KING, 16
HOW.  469, 474; AND SEE TO THE SAME EFFECT RAILROAD COMPANY V.
LOCKWOOD, 17 WALL.  357, 382-383.  IN 1873, THIS COURT IN AN ELABORATE
AND WELL-REASONED OPINION HELD THAT IT WAS AGAINST THE PUBLIC INTEREST
AND PUBLIC POLICY TO PERMIT COMMON CARRIERS TO STIPULATE AGAINST THE
RESULTS OF THE NEGLIGENCE OF THEMSELVES OR THEIR AGENTS, AND THAT WHILE
THE RULE APPLIED BOTH TO CARRIAGE OF GOODS AND PASSENGERS, IT APPLIED
WITH "SPECIAL FORCE TO THE LATTER."  RAILROAD COMPANY V. LOCKWOOD,
SUPRA AT 384.  THE PASSENGER IN THE LOCKWOOD CASE WAS A DROVER
TRAVELING ON A FREE PASS TO LOOK AFTER CATTLE; THE COURT RESERVED
DECISION AS TO WHETHER THE RULE WOULD APPLY TO A STRICTLY FREE
PASSENGER.  FOUR YEARS LATER THE COURT APPLIED THE SAME REASONING TO A
RAILROAD-DESIGNATED "FREE PASS" PASSENGER, FINDING THAT IN FACT THERE
WAS CONSIDERATION FOR THE CARRIAGE AND THAT IT WAS NOT A "MATTER OF
CHARITY" OR A "MERE GRATUITY."  RAILWAY COMPANY V. STEVENS, 95 U.S.
655, 658, 660.  THE LOCKWOOD AND STEVENS CASES PLAINLY STAND FOR THE
PRINCIPLE THAT WHERE THERE IS ANY BENEFIT DERIVED BY THE RAILROAD A
PASS IS NOT "FREE," AND THAT A PASSENGER RIDING ON SUCH A PASS MAY
RECOVER FOR INJURIES DUE TO THE RAILROAD'S NEGLIGENCE, REGARDLESS OF
STIPULATIONS IN HIS PASS. 

IN THE LOCKWOOD CASE THIS COURT REFUSED TO FOLLOW DECISIONS OF THE
SUPREME COURT OF NEW YORK, THE STATE WHERE THE CARRIAGE CONTRACT WAS
MADE AND WHERE THE ACCIDENT OCCURRED, BUT INSTEAD, SINCE THERE WAS NO
CONTROLLING NEW YORK STATUTE, EXPRESSLY DECIDED THE POINT AS ONE OF
"GENERAL COMMERCIAL LAW."  17 WALL.  AT 368.  AND SEE CHICAGO,
MILWAUKEE & ST. P.R. CO. V. SOLAN, 169 U.S. 133, 136-137.  OUT OF THIS
"GENERAL COMMERCIAL LAW" BACKGROUND EMERGED THE "RULE" RELIED ON BY THE
COURT IN THE ADAMS CASE. 

                                  V. 

THE BEGINNING OF THE DOCTRINE THAT A RAILROAD COULD BY STIPULATION
EXEMPT ITSELF FROM LIABILITY FOR NEGLIGENT INJURY TO STRICTLY FREE
PASSENGERS WAS IN NORTHERN PAC. R. CO. V. ADAMS, SUPRA, AND BOERING V.
CHESAPEAKE BEACH R. CO., 193 U.S. 442, BOTH DECIDED IN 1904.  THE
DECISIONS IN THESE CASES BEAR INTERNAL PROOF THAT THEY RESTED ON THE
"GENERAL COMMERCIAL LAW" GROUND.  THE ADAMS OPINION TREATED THE NEWLY
ANNOUNCED DOCTRINE AS NO MORE THAN A SPECIAL EXCEPTION TO THE RULE OF
"GENERAL COMMERCIAL LAW" OF THE LOCKWOOD CASE, WHICH RULE DENIED
RAILROADS POWER TO EXEMPT THEMSELVES FROM THE EFFECTS OF THEIR
NEGLIGENCE THROUGH THE DEVICE OF "FREE" PASSES.    AS BEARING ON THE
NARROW SCOPE OF THE ADAMS RULE AND ITS "TRANSCENDENTAL LAW" ORIGIN, IT
IS OF IMPORTANCE THAT THE ADAMS AND BOERING CASES WERE DECIDED IN 1904,
TWO YEARS BEFORE CONGRESS OUTLAWED POLITICAL PASSES IN THE HEPBURN
ACT.  THERE EXISTED AT THAT TIME A WIDESPREAD HOSTILITY TO THE USE OF
"STRICTLY FREE" RAILROAD PASSES.  THE PASS IN THE BOERING CASE AS WELL
AS IN THE ADAMS CASE WAS "STRICTLY FREE."  ADAMS, THE DECEASED, WAS A
LAWYER BUT NOT EMPLOYED BY THE RAILROAD THAT GAVE HIM THE PASS.  MANY
BELIEVED, AS SHOWN BY THE LEGISLATIVE HISTORY OF THE HEPBURN ACT, THAT
RAILROADS WERE USING PASSES TO INFLUENCE PUBLIC MEN TO FAVOR RAILROADS
AT THE EXPENSE OF THE PUBLIC GOOD.  CONSEQUENTLY, PASS GIVERS AND PASS
USERS OF "STRICTLY FREE" PASSES, AS DISTINGUISHED FROM GIVERS AND USERS
OF EMPLOYEES' PASSES, WERE IN BAD REPUTE.  THE ADAMS AND BOERING
DECISIONS PLAINLY REFLECT THIS SENTIMENT.  BOTH DECISIONS SPOTLIGHTED
THE IMPORTANCE OF HAVING "THOSE WHO ACCEPT GRATUITIES AND ACTS OF
HOSPITALITY" STAND BY THEIR CONTRACTS TO ASSUME THE RISKS OF INJURY
INCIDENT TO RIDING.  IN THE LOCKWOOD AND STEVENS CASES, WHERE NO MONEY
WAS PAID FOR PASSAGE, BUT NEITHER CARRIAGE WAS STRICTLY FREE, INTERESTS
OF THE PUBLIC IN A CAREFULLY OPERATED RAILROAD SYSTEM WERE EXPRESSLY
HELD TO OUTWEIGH SANCTITY OF CONTRACTS AND ALL OTHER CONSIDERATIONS; IN
THE ADAMS AND BOERING CASES, SANCTITY OF CONTRACTS, PARTICULARLY
CONTRACTS MADE TO OBTAIN STRICTLY FREE TRANSPORTATION, WAS GIVEN
GREATER WEIGHT THAN THE PUBLIC'S INTEREST IN SAFE TRANSPORTATION.  FN5
BUT ALL THE CASES ALIKE TURNED OUT JUDGE-MADE RULES OF "GENERAL
COMMERCIAL LAW."  NOW LET US FOLLOW THE ADAMS RULE TO ITS APPEARANCE IN
OTHER CASES RELIED ON BY THE COURT TODAY FOR THE STATEMENT THAT THIS
RULE OF "GENERAL COMMERCIAL LAW" HAS BECOME PART OF THE "WARP AND WOOF"
OF THE HEPBURN ACT. 

CHARLESTON & W.C.R. CO. V. THOMPSON, 234 U.S. 576, IS THE NEXT CASE
RELIED ON HERE.  IT WAS DECIDED IN 1914, EIGHT YEARS AFTER PASSAGE OF
THE HEPBURN ACT, WHICH HAD, WITH CERTAIN EXCEPTIONS, PROHIBITED
ISSUANCE OF PASSES BY RAILROADS.  34 STAT. 584, 49 U.S.C. SEC. 1(7). 
THE SUIT WAS BROUGHT BY THE WIFE OF A RAILROAD EMPLOYEE TO RECOVER FOR
INJURIES SUSTAINED BY HER WHILE AN INTERSTATE RAILROAD PASSENGER RIDING
ON A PASS.  THE COURT OF APPEALS OF GEORGIA CONSIDERED IT TO BE THE
GENERAL RULE THAT STRICTLY FREE PASS PASSENGERS COULD NOT RECOVER FOR
INJURIES IF THEIR PASSES CONTAINED A STIPULATION REQUIRING THE
PASSENGER TO ASSUME THE RISK OF RAILROAD NEGLIGENCE.  BUT THAT COURT
WENT ON TO HOLD THAT THE HEPBURN ACT, BY SPECIFICALLY AUTHORIZING
ISSUANCE OF PASSES TO RAILROAD EMPLOYEES AND THEIR FAMILIES, HAD PUT
THEM IN A DIFFERENT CATEGORY FROM "PURELY GRATUITOUS" PASSENGERS.  THE
COURT REGARDED PASSES ISSUED TO MEMBERS OF AN EMPLOYEE'S FAMILY AS
PARTIAL COMPENSATION FOR THE EMPLOYEE'S SERVICES, AND FOR THAT REASON
DISTINGUISHED PERSONS RIDING ON SUCH PASSES FROM STRICTLY FREE PASS
PASSENGERS, TO WHOM THE HARSH ADAMS RULE APPLIED.  13 GA. APP. 528, 80
S.E. 1097.  THIS COURT REVERSED, SAYING THAT "THE MAIN QUESTION IS
WHETHER WHEN THE STATUTE PERMITS THE ISSUE OF A 'FREE PASS' TO ITS
EMPLOYES AND THEIR FAMILIES IT MEANS WHAT IT SAYS."  IT DID NOT FIND
THAT THE PASS ON WHICH THE INJURED WIFE OF THE EMPLOYEE HAD RIDDEN WAS
FREE IN FACT, BUT HELD THAT THE "PASS WAS FREE UNDER THE STATUTE,"
THEREBY TREATING EMPLOYEES' PASSES AS THOUGH THEY WERE STRICTLY FREE,
WITHOUT STATING ANY REASON EXCEPT THAT THE HEPBURN ACT HAD REFERRED TO
PASSES AS "FREE."  CF. NORFOLK SOUTHERN R. CO. V. CHATMAN, 244 U.S.
276, 280-281.  THE COURT THEN WENT FURTHER AND UPHELD THE PASS
STIPULATIONS FOR RAILROAD EXEMPTION FROM LIABILITY FOR NEGLIGENCE.  BUT
THE COURT DID NOT AT ALL RELY ON THE HEPBURN ACT FOR THIS LATTER
HOLDING.  INSTEAD IT WAS SAID THAT "AS THE PASS WAS FREE UNDER THE
STATUTE  ...  THE VALIDITY OF ITS STIPULATIONS" WAS "ESTABLISHED BY THE
DECISIONS OF THIS COURT," RELYING COMPLETELY UPON THE ADAMS AND BOERING
CASES.  THUS THE CHARLESTON & W.C.R. CO. CASE DID NOT DISCOVER THE
ADAMS RULE IN AN ACT OF CONGRESS; THE RULE IT RELIED ON HAD BEEN
JUDICIALLY CREATED IN 1904 BY AN EXERCISE OF THE COURT'S
"TRANSCENDENTAL" LAW POWER. 

KANSAS CITY SO. R. CO. V. VAN ZANT, 260 U.S. 459, DECIDED IN 1923, IS
THE NEXT AND THE LAST CASE RELIED ON BY THE COURT TODAY.  THAT CASE
DECIDED THAT THE "INCIDENTS AND CONSEQUENCES" OF AN EMPLOYEE'S PASS
RAISE A FEDERAL QUESTION.  CF. SOUTHERN PAC. CO. V. SCHUYLER, 227 U.S.
601, 610; CHICAGO, R.I. & P.R. CO. V. MAUCHER, 248 U.S. 359, 363.  IT
THEN REPEATED THE STATEMENT MADE IN CHARLESTON & W.C.R. CO. V.
THOMPSON, SUPRA, THAT AN EMPLOYEE'S PASS TRANSPORTATION IS "FREE,"
AGAIN WITHOUT ANY EXPLANATION OF WHY.  TO THIS EXTENT IT MAY BE SAID
THAT THE COURT WAS THEN CONSTRUING THE HEPBURN ACT, THOUGH I THINK ITS
CONSTRUCTION WAS WRONG.  BUT THE COURT DID NOT, EVEN IN THIS LAST CASE
(1923), HOLD OR INTIMATE THAT THE HEPBURN ACT OF ITSELF PUT EMPLOYEE
PASS PASSENGERS IN A SEPARATE CLASS, TO BE NEGLIGENTLY KILLED OR
INJURED WITH IMPUNITY.  TO DEGRADE RAILROAD EMPLOYEE PASSENGERS TO THIS
UNFORTUNATE LEVEL THIS COURT IN THE VAN ZANT CASE AGAIN RELIED ON THE
RULE IT HAD FASHIONED IN THE ADAMS AND BOERING DECISIONS.  SO LONG AS
ONE AGREED WITH THE SOUNDNESS OF THE ADAMS CASE RULE AND WITH THIS
COURT'S EXERCISE OF A POWER TO DECLARE "GENERAL COMMERCIAL LAW" UNDER
THE SWIFT V. TYSON, DOCTRINE, THE RESULT OF THE VAN ZANT CASE COULD NOT
BE QUESTIONED IN 1923.  BUT THAT WAS FIFTEEN YEARS PRIOR TO ERIE R. CO.
V. TOMPKINS, SUPRA, IN WHICH WE ABANDONED THE "TRANSCENDENTAL" LAW
DOCTRINE, AS TYPIFIED BY THE ADAMS RULE, AND TODAY'S DECISION IS TEN
YEARS AFTER WE TOOK THAT SALUTARY STEP. 

IN APPLYING THIS PRE-ERIE-TOMPKINS COURT-MADE TRANSCENDENTAL LAW RULE
AT THIS TIME, THE COURT NOT ONLY IN PART NEUTRALIZES OUR ERIE-TOMPKINS
DECISION.  IT ACTUALLY LEAVES A RULE STANDING WHICH MIGHT HAVE ALREADY
FALLEN UNDER THE REPUDIATED SWIFT V. TYSON DOCTRINE SO FAR AS IT
GOVERNED.  FOR THOUGH A PURELY TRANSCENDENTAL LAW RULE JUDICIALLY
CREATED BY THIS COURT UNDER THE PRE-ERIE-TOMPKINS DOCTRINE WAS "NONE
THE LESS THE LAW OF THE STATE," IT NEED ONLY HAVE REMAINED THE "LAW OF
THE STATE" UNTIL "CHANGED BY ITS LEGISLATURE."  CHICAGO, MILWAUKEE, &
ST. P.R. CO. V. SOLAN, 169 U.S. 133, 136-137.  HENCE, HAD THE SWIFT
TYSON DOCTRINE NOT BEEN REPUDIATED, THE ADAMS RULE AS APPLIED TO
PERSONS INJURED IN UTAH SHOULD HAVE FALLEN OF ITS OWN WEIGHT HAD THE
UTAH LEGISLATURE PASSED A LAW AUTHORIZING A MAN'S CHILDREN TO RECOVER
FROM A RAILROAD THAT NEGLIGENTLY KILLED THEIR PARENTS WHILE THEY WERE
"FREE PASS" PASSENGERS.  UTAH HAS A STATUTE BROAD ENOUGH TO AUTHORIZE
SUCH RECOVERIES.  THE ONLY BARRIER TO RECOVERY UNDER THAT STATE STATUTE
IS GROUNDED ON A COURT-ANNOUNCED "COMMERCIAL LAW" RULE, A POOR EXCUSE
INDEED FOR DEPRIVING A STATE OF EXERCISING ITS TRADITIONAL POWER TO
CONTROL ACTIONS FOR LOCAL WRONGFUL DEATHS.  OF COURSE THIS IS AN
INTERSTATE CARRIER AND WE SHOULD NOT CONSTRICT CONGRESSIONAL POWERS
OVER IT BY NARROW STATUTORY INTERPRETATIONS.  CF. FEDERAL TRADE COMM'N
V. BUNTE BROS., 312 U.S. 349.  BUT THE VERY ABSENCE OF A FEDERAL
STATUTE TO TAKE THE PLACE OF LOCAL WRONGFUL DEATH STATUTES SHOULD BE
THE EQUIVALENT OF A LOUD CONGRESSIONAL WARNING TO COURTS TO REFRAIN
FROM ENCROACHING ON STATE POWERS HERE. 

                                 VI. 

IT IS SAID HOWEVER THAT CONGRESS, ALTHOUGH AWARE OF THE ADAMS
TRANSCENDENTAL LAW RULE, HAS NEVER CHANGED IT.  INDULGING FOR THE
MOMENT THE CONVENIENT FICTION THAT CONGRESS KNOWS ALL ABOUT THAT RULE
AND WHAT IT MEANS, WHY SHOULD IT THINK THAT OLD RULES LAID DOWN BY THIS
COURT AND BASED ON THE SWIFT V. TYSON DOCTRINE COULD SURVIVE OUR
DECISION IN ERIE V. TOMPKINS?  AND WHY SHOULD CONGRESS THINK THAT A
RULE WHICH HAD NEVER BEEN APPLIED BY THIS COURT TO BAR THE CHILDREN OF
A DECEASED EMPLOYEE WOULD BE EXTENDED TO BAR RECOVERY BY THOSE
CHILDREN?  I VENTURE THE SUGGESTION THAT IT WOULD BE SHOCKING TO
MEMBERS OF CONGRESS, EVEN THOSE WHO ARE IN CLOSEST TOUCH WITH
INTERSTATE COMMERCE LEGISLATION, TO BE TOLD THAT THEIR "SILENCE" IS
RESPONSIBLE FOR APPLICATION TODAY OF A RULE WHICH IS OUT OF STEP WITH
THE TREND OF ALL CONGRESSIONAL LEGISLATION FOR MORE THAN THE PAST
QUARTER OF A CENTURY.  THERE ARE SOME FIELDS IN WHICH CONGRESSIONAL
COMMITTEES HAVE SUCH CLOSE LIAISON WITH AGENCIES IN REGARD TO SOME
MATTERS, THAT IT IS REASONABLE TO ASSUME AN AWARENESS OF CONGRESS WITH
RELEVANT JUDICIAL AND ADMINISTRATIVE DECISIONS.  BUT I CAN FIND NO
GROUND FOR AN ASSUMPTION THAT CONGRESS HAS KNOWN ABOUT THE ADAMS RULE
AND DELIBERATELY LEFT IT ALONE BECAUSE IT FAVORED SUCH AN ARCHAIC
DOCTRINE.  FN6  I REJECT THE IDEA THAT CONGRESS EVER HAS APPROVED SUCH
A RULE, AND NONE OF ITS LEGISLATION FOR THE PAST QUARTER OF A CENTURY
INDICATES THAT IT EVER WOULD HAVE APPROVED IT.

                                 VII. 

THE LEGISLATIVE HISTORY OF THE HEPBURN ACT'S FREE PASS PROVISION
SHOWS THAT APPLICATION OF THE ADAMS DOCTRINE TO EMPLOYEES' PASSES IS
NOT IN ACCORDANCE WITH BUT DIRECTLY HOSTILE TO THE CONGRESSIONAL
PURPOSE IN PERMITTING EMPLOYEE PASSES.  THAT CONGRESS NEVER WOULD HAVE
PASSED AN ACT WHICH SO PENALIZED EMPLOYEES, MAY BE SEEN BY READING EVEN
THE FEW PORTIONS OF THE CONGRESSIONAL RECORD AND COMMITTEE REPORTS
CITED BELOW.  FN7  IN VERY BRIEF SUMMARY THAT HISTORY SHOWS: 

PRIOR TO 1906, THERE GREW UP A DEMAND BY THE PEOPLE THAT RAILROADS
CEASE DISCRIMINATING AGAINST SOME SHIPPERS IN FAVOR OF OTHERS AND CEASE
USING FREE PASSES AS A MEANS TO OBTAIN SPECIAL FAVORS FROM PUBLIC
OFFICIALS AND ADMINISTRATIVE AGENCIES.  PUBLIC COMPLAINT WAS NOT
AGAINST EMPLOYEES USING PASSES.  IN FACT, SOME UNIONS HAD BARGAINING
AGREEMENTS FOR PASSES, AND CONGRESSMEN WHO SPOKE ON THE HEPBURN BILL
CONSIDERED EMPLOYEES' PASSES TO BE A PART OF THE INDUCEMENT TO WORK FOR
RAILROADS.  PASSES WERE SPOKEN OF BY THOSE WHO DISCUSSED LEGISLATION ON
THE HOUSE AND SENATE FLOORS AS PART OF THE COMPENSATION OF EMPLOYEES. 
THE SUBJECT WAS AN IMPORTANT ONE AND WAS SO TREATED.  AT ONE TIME A
CONFERENCE REPORT RECOMMENDED TO BOTH HOUSES THAT ALL PASSES BE
PROHIBITED.  40 CONG. REC. 7741.  THIS REPORT WAS DEFEATED AND THE
DEBATES INDICATE THAT IT WOULD HAVE BEEN DIFFICULT TO PASS A BILL WHICH
FAILED TO PERMIT ISSUANCE OF PASSES TO RAILROAD EMPLOYEES - NOT IN THE
SPIRIT OF GIVING ALMS TO BEGGARS OR FAVORS TO POLITICIANS, BUT TO
REQUITE MEN FOR FAITHFUL WORK. 

IF ANY SENATOR OR CONGRESSMAN DISCUSSING THE HEPBURN ACT HAD EVER
HEARD OF THE ADAMS RULE, HE FAILED TO MENTION IT.  BUT IT MUST BE
CONCEDED THERE WAS NO REASON FOR HIM TO MENTION IT, SINCE THE PURPOSES
OF THE ACT BORE NO RELATION, DIRECTLY OR REMOTELY, TO LIABILITY OF A
RAILROAD FOR INJURY TO PASSENGERS WHETHER RIDING ON PASSES OR PAYING
THEIR FARES.  EVEN IF SOME MEMBER OF CONGRESS HAD BEEN ACQUAINTED WITH
THE ADAMS RULE AND HAD THOUGHT THAT THE HEPBURN ACT BORE SOME REMOTE
RELATION TO THE LIABILITY OF RAILROADS FOR INJURY TO PASSENGERS, STILL
HE WOULD HAVE HAD NO REASON TO BELIEVE THIS COURT WOULD SUBSEQUENTLY
EXPAND THAT RULE, THEN APPLICABLE ONLY TO "STRICTLY FREE PASS"
PASSENGERS, TO PENALIZE EMPLOYEES AND OTHERS AUTHORIZED BY CONGRESS TO
RIDE ON PASSES.  AS I SEE IT, TODAY'S DECISION UNDERMINES THE PURPOSE
CONGRESS HAD IN MIND IN APPROVING THE LONG-STANDING PRACTICE OF
EMPLOYEES' PASSES.  IT PERVERTS AN ADVANTAGE EXPRESSLY SAVED TO
EMPLOYEES INTO A PENALTY FOR MAKING USE OF IT.  IT MAKES TRAPS OF THESE
PASSES. 

                 VIII. 

MOREOVER, THE SUBJECTION OF RAILROAD EMPLOYEES WHILE PASSENGERS TO
THE HAZARDS OF UNCOMPENSATED INJURIES IS AT WAR WITH THE BASIC
PHILOSOPHY WHICH HAS FOUND EXPRESSION IN OTHER INDUSTRIAL AND SOCIAL
LEGISLATION FOR MANY YEARS.  EMPLOYERS' LIABILITY ACTS, COMPENSATION
ACTS, SOCIAL INSURANCE LEGISLATION OF THE FEDERAL GOVERNMENT AND
VARIOUS STATES, AND A HOST OF OTHER LEGISLATIVE POLICIES HAVE BEEN
GROUNDED UPON THE BASIC PREMISE THAT CARE OF THE ACCIDENTALLY INJURED
SHOULD BE ACCEPTED AS A MATTER OF GREAT PUBLIC CONCERN.  CONGRESS HAS
ALSO ERASED EVERY VESTIGE OF THE OLD JUDICIALLY CREATED FELLOW-SERVANT
AND ASSUMPTION-OF-RISK DOCTRINES IN CONNECTION WITH SUITS BY RAILROAD
EMPLOYEES ON ACCOUNT OF INJURIES SUFFERED IN THE COURSE OF THEIR
EMPLOYMENT.  TILLER V. ATLANTIC C.L.R. CO., 318 U.S. 54.  THE ANALOGY
BETWEEN THESE NOW REPUDIATED JUDICIALLY CREATED TORT-LAW DOCTRINES AND
THE PRESENT RULE WAS PRESSED ON THE COURT IN BRIEFS FOR THE RAILROAD IN
THE ADAMS CASE.  CONGRESS HAS ALSO EMPHATICALLY OUTLAWED ALL KINDS OF
STIPULATIONS AND CONTRACTS TO EXEMPT RAILROADS FROM LIABILITY FOR THEIR
NEGLIGENCE IN EMPLOYERS' LIABILITY ACT CASES.  DUNCAN V. THOMPSON, 315
U.S. 1.  ALL OF THIS BODY OF LEGISLATION, AND MUCH MORE TO WHICH
REFERENCE COULD BE MADE, HAS DEPARTED FROM THE PREMISE OF THE ADAMS AND
BOERING DECISIONS THAT IT IS MORE IMPORTANT TO SOCIETY THAT MEN ABIDE
BY TICKET AND CONTRACT STIPULATIONS  FN8  THAN IT IS TO HAVE A SYSTEM
WHICH PROVIDES COMPENSATION FOR THE INDUSTRIALLY INJURED AND THE
DEPENDENTS OF THOSE WHO ARE KILLED.  FOR OUR SOCIETY ATTEMPTS TO TAKE
CARE OF ITS AGED, UNEMPLOYED, CRIPPLED AND DISABLED, AS WELL AS THE
DEPENDENTS OF THOSE KILLED BY OUR INDUSTRIAL MACHINE.  SEE GEORGETOWN
COLLEGE V. HUGHES, 76 U.S. APP. D.C. 123, 130 F.2D 810, 822-825;
INTERSTATE COMMERCE COMM'N V. RAILWAY LABOR ASSN., 315 U.S. 373, 376
378.  AND THE PRESENT RAILROAD REGULATORY SYSTEM IS SUCH THAT PAYMENT
BY RAILROADS FOR INJURIES INFLICTED BY THEM UPON PASSENGERS IS JUST AS
CERTAINLY BORNE BY THE PUBLIC AS THOUGH THOSE INJURED AND THEIR
DEPENDENTS WERE DIRECTLY SUPPORTED BY GOVERNMENTAL INSTITUTIONS. 

WHETHER ALLOWANCE OF DAMAGES FOR NEGLIGENT DEATH IS THE BEST WAY TO
MEET THE PROBLEMS INCIDENT TO TRANSPORTATION DANGERS IS BESIDE THE
POINT.  MANY COURTS GENERALLY, INCLUDING THIS ONE AND UTAH'S, MAY HAVE
BEEN WRONG IN THINKING THAT THE POSSIBILITY OF HAVING TO PAY DAMAGES
FOR DEATHS OF PASSENGERS DUE TO RAILROAD NEGLIGENCE WOULD MAKE
RAILROADS MORE CAUTIOUS.  FN9  PERHAPS SOCIETY COULD TAKE CARE OF
INJURED PASSENGERS AND THEIR DEPENDENTS IN A LESS WASTEFUL MANNER.  BUT
SO LONG AS CONGRESS LEAVES THE STATES FREE TO ADOPT THIS METHOD OF
MEETING THE PROBLEM, I THINK THIS COURT SHOULD NOT HANDICAP THE
STATES.  CONGRESS COULD PROVIDE A SUBSTITUTE FOR THE STATE LAWS; WE
CANNOT.                                       IX. 

TODAY'S DECISION LEAVES STATES FREE TO PROVIDE THAT RAILROADS MUST
PAY FOR INJURY OR DEATH OF PASSENGERS WHO CAN AND DO PAY A FULL MONEY
FARE FOR PASSAGE.  THIS GROUP IS FAR MORE LIKELY TO INCLUDE SOME PEOPLE
WHO ARE BETTER ABLE FINANCIALLY TO TAKE CARE OF THEMSELVES IN CASE OF
INJURY THAN ARE THE MEMBERS OF SOME OF THE OTHER GROUPS PERMITTED BY
THE HEPBURN ACT TO RIDE ON FREE PASSES, ALL OF WHOM ARE PENALIZED BY
TODAY'S DECISION.  THESE GROUPS ARE IN ADDITION TO RAILROAD EMPLOYEES
AND THEIR FAMILIES, EMPLOYEES OF OTHER RAILROADS; MINISTERS OF
RELIGION; YOUNG MEN'S CHRISTIAN ASSOCIATION WORKERS; INMATES OF
ELEEMOSYNARY INSTITUTIONS; INDIGENT, DESTITUTE, AND HOMELESS PERSONS;
DISABLED SOLDIERS; AND OTHERS IN ANALOGOUS CATEGORIES.  IN FOLLOWING A
COURSE TODAY THAT TAKES ALL OF THE ABOVE GROUPS OUT FROM UNDER THE
PROTECTION OF STATE LAWS, THE COURT IGNORES THE SIGNS ERECTED BY
CONGRESS, ALL OF WHICH POINT IN THE OPPOSITE DIRECTION.  ASSUMING THE
COURT IS RIGHT IN SAYING THAT A RULE WITH SUCH CONSEQUENCES HAS BECOME
A PART OF THE WARP AND WOOF OF THE HEPBURN ACT, IT IS A DEFECTIVE PART
WHICH THIS COURT ALONE HAS WOVEN INTO THE ACT AND WHICH CLASHES WITH
THE CONGRESSIONALLY FASHIONED FABRIC AND DESIGN.  THE RESULT IS A
MOTLEY PATTERN.  I WOULD RESTORE THE ORIGINAL CONGRESSIONAL DESIGN. 

NO SOUND ARGUMENT HAS BEEN OR CAN BE ADVANCED FOR APPLICATION OF THE
1904 ADAMS RULE IN TODAY'S ENTIRELY DIFFERENT JUDICIAL AND LEGISLATIVE
ENVIRONMENT, EVEN AS THE RULE WAS FIRST NARROWLY APPLIED TO A PURELY
GRATUITOUS CARRIAGE, EXCEPT THAT IT WAS UNQUESTIONINGLY ACCEPTED 34 AND
25 YEARS AGO IN CASES WHERE THE RULE'S SOUNDNESS WAS NOT CHALLENGED. 
WHEN PRECEDENT AND PRECEDENT ALONE IS ALL THE ARGUMENT THAT CAN BE MADE
TO SUPPORT A COURT-FASHIONED RULE, IT IS TIME FOR THE RULE'S CREATOR TO
DESTROY IT. 

THE VAN ZANT CASE DID HOLD THAT SINCE THE HEPBURN ACT THE "INCIDENTS
AND CONSEQUENCES" OF AN EMPLOYEE'S PASS RAISED A FEDERAL QUESTION.  IT
THEN HELD THAT THE USER OF AN EMPLOYEE'S PASS MUST STAND BY HIS
CONTRACT TO ASSUME THE RISKS OF NEGLIGENT INJURY BY THE RAILROAD. 
NEITHER IT, NOR ANY OTHER CASE SINCE THE HEPBURN ACT, UNTIL THE CASE
TODAY, HAS HELD THAT THE PENALIZING CONSEQUENCES OF THE FATHER'S
CONTRACT MUST BE VISITED UPON HIS CHILDREN.  I WOULD NOT SO EXTEND THE
MORE THAN DUBIOUS VAN ZANT DOCTRINE. 

FN1  MR. JUSTICE CARDOZO SAID THIS ABOUT THE QUEST FOR UNVARYING AND
ETERNAL CERTAINTY IN THE LAW:  "I WAS MUCH TROUBLED IN SPIRIT, IN MY
FIRST YEARS UPON THE BENCH, TO FIND HOW TRACKLESS WAS THE OCEAN ON
WHICH I HAD EMBARKED.  I SOUGHT FOR CERTAINTY.  I WAS OPPRESSED AND
DISHEARTENED WHEN I FOUND THAT THE QUEST FOR IT WAS FUTILE.  ...  AS
THE YEARS HAVE GONE BY, AND AS I HAVE REFLECTED MORE AND MORE UPON THE
NATURE OF THE JUDICIAL PROCESS, I HAVE BECOME RECONCILED TO THE
UNCERTAINTY, BECAUSE I HAVE GROWN TO SEE IT AS INEVITABLE.  I HAVE
GROWN TO SEE THAT THE PROCESS IN ITS HIGHEST REACHES IS NOT DISCOVERY,
BUT CREATION; AND THAT THE DOUBTS AND MISGIVINGS, THE HOPES AND FEARS,
ARE PART OF THE TRAVAIL OF MIND, THE PANGS OF DEATH AND THE PANGS OF
BIRTH, IN WHICH PRINCIPLES THAT HAVE SERVED THEIR DAY EXPIRE, AND NEW
PRINCIPLES ARE BORN."  THE NATURE OF THE JUDICIAL PROCESS, BENJAMIN N.
CARDOZO, 166-67(1921).  "SOMEWHERE BETWEEN WORSHIP OF THE PAST AND
EXALTATION OF THE PRESENT, THE PATH OF SAFETY WILL BE FOUND."  ID. AT
160. 

FN2  VAN AMBURG V. VICKSBURG, S. & P.R. CO., 37 LA. ANN. 650, 651,
65, 55 AM. REP. 517, 518; ROWE V. RICHARDS, 35 S.D. 201, 206-207, 151
N.W. 1001, 1003; SALSEDO V. PALMER, 278 F. 92, 94; MANEY V. CHICAGO, B.
& Q.R. CO., 49 ILL. APP. 105, 112-113.  FOR A DISCUSSION OF THE STATE
WRONGFUL DEATH STATUTES, SEE ANNOTATIONS:  L.R.A. 1915E, 1075, 1095,
1163; 23 A.L.R. 1262; 27 L.R.A. (N.S.)  176. 

FN3  THE RECENT VAN WAGONER UTAH SUPREME COURT DECISION CITED BY THE
COURT IS NOT OUT OF HARMONY WITH THE ABOVE CASES BUT, AS AMENDED ON
REHEARING, IS EXPRESSLY LIMITED TO A HOLDING THAT CONTRIBUTORY
NEGLIGENCE OF A DECEDENT MAY BAR RECOVERY UNDER THE UTAH STATUTE ON THE
PART OF HIS HEIRS.  THAT HOLDING SIMPLY MEANS THAT THE DEATH WAS NOT
"WRONGFUL" UNDER THE STATUTE.  IT DOES NOT MEAN THAT WHERE THERE IS
COMPANY NEGLIGENCE UTAH WOULD HOLD THAT A RAILROAD COULD BARTER AWAY
THE BENEFICIARY'S RIGHTS. 

AND AS I READ THE OPINION OF THE CIRCUIT COURT OF APPEALS IN THE CASE
NOW BEFORE US, IT DID NOT HOLD THAT UNDER UTAH LAW AN ACTION IS
MAINTAINABLE ONLY WHERE "THE DECEDENT COULD HAVE MAINTAINED AN ACTION
TO RECOVER DAMAGES FOR HIS INJURY IF DEATH HAD NOT ENSUED."  FOR THAT
STATEMENT IN ITS OPINION, THE CIRCUIT COURT OF APPEALS RELIED ONLY ON
THE ADAMS CASE AND SEVERAL OTHER OPINIONS OF THIS COURT.  IT DID NOT
PURPORT TO BE CONSTRUING UTAH LAW.  ON THIS POINT, THEREFORE, THERE IS
NO QUESTION PRESENTED AS TO WHETHER THE CIRCUIT COURT OF APPEALS MADE A
"PLAIN ERROR" IN THE CONSTRUCTION OF STATE LAW.  THE STATE LAW ON THAT
SUBJECT HAS BEEN VERY CLEARLY STATED BY THE STATE SUPREME COURT TO THE
EFFECT THAT IT "IS BEYOND THE POWER OF THE LEGISLATURE TO TAKE FROM THE
DEPENDENTS OF AN EMPLOYEE THEIR CLAIM AGAINST THE EMPLOYER, WHERE SUCH
EMPLOYEE DIES AS THE RESULT OF A WRONGFUL INJURY BY THE EMPLOYER." 
HALLING V. INDUSTRIAL COMM'N OF UTAH, 71 UTAH 112, 120-121, 263 P. 78,
80-81. 

FN4  THE COURT SAID:  "  ...  IT IS TRUE, A DISTINCTION HAS BEEN
TAKEN, IN SOME CASES, BETWEEN SIMPLE NEGLIGENCE, AND GREAT OR GROSS
NEGLIGENCE; AND IT IS SAID, THAT ONE WHO ACTS GRATUITOUSLY IS LIABLE
ONLY FOR THE LATTER.  BUT THIS CASE DOES NOT CALL UPON US TO DEFINE THE
DIFFERENCE, (IF IT BE CAPABLE OF DEFINITION,) AS THE VERDICT HAS FOUND
THIS TO BE A CASE OF GROSS NEGLIGENCE. 

"WHEN CARRIERS UNDERTAKE TO CONVEY PERSONS BY THE POWERFUL BUT
DANGEROUS AGENCY OF STEAM, PUBLIC POLICY AND SAFETY REQUIRE THAT THEY
BE HELD TO THE GREATEST POSSIBLE CARE AND DILIGENCE.  AND WHETHER THE
CONSIDERATION FOR SUCH TRANSPORTATION BE PECUNIARY OR OTHERWISE, THE
PERSONAL SAFETY OF THE PASSENGERS SHOULD NOT BE LEFT TO THE SPORT OF
CHANCE OR THE NEGLIGENCE OF CARELESS AGENTS.  ANY NEGLIGENCE, IN SUCH
CASES, MAY WELL DESERVE THE EPITHET OF 'GROSS.'" 

FN5 A NOTE APPENDED TO THE LOCKWOOD CASE AS REPORTED IN 21 L. ED. 627
CITES CASES IN SUPPORT OF THE POSITION THERE TAKEN THAT THE ADAMS RULE
WAS CONTRARY TO THE WEIGHT OF JUDICIAL AUTHORITY.  AND SEE 22 L.R.A.
794; 37 L.R.A. (N.S.)  235; 37 ANN. CAS. 623. 

FN6  THE TRANSPORTATION ACT OF 1940, 54 STAT. 899, 900, 49 U.S.C.
1(7), EXPANDED THE GROUPS ELIGIBLE TO RIDE ON "FREE PASSES."  BUT NO
LANGUAGE USED IN THAT ACT AND NO LEGISLATIVE HISTORY THAT I HAVE FOUND
INDICATES ANY CONGRESSIONAL KNOWLEDGE OF THE EXISTENCE OF THE
PENALIZING ADAMS RULE, MUCH LESS APPROVAL OF IT.  FAR FROM INDICATING A
PURPOSE TO ACQUIESCE IN ANY KIND OF REDUCED EMPLOYEE PROTECTION,
CONGRESS IN SEC. 7(2)(F) OF THAT ACT, 49 U.S.C. SEC. 5(2)(F), PROVIDED
A NEW AND EXTRAORDINARY PROTECTION FOR EMPLOYEES WHOSE JOBS MIGHT BE
AFFECTED BY RAILROAD MERGERS AND CONSOLIDATIONS.  SEE SEN. REP. NO.
433, 76TH CONG., 1ST SESS., 4, 21; H.R. REP. NO. 2832, 76TH CONG., 3D
SESS., 68-69; INTERSTATE COMMERCE COMM'N V. RAILWAY LABOR ASSN., 315
U.S. 373, 379-380. 

FN7  40 CONG. REC. 7741, 7851-7852, 7920-7940, 7978-7998.  THE
FOLLOWING STATEMENT IS TYPICAL OF THE SENTIMENT THAT BROUGHT INTO THE
HEPBURN ACT THE EXCEPTION THAT PERMITTED ISSUANCE OF PASSES TO AND USE
OF THEM BY EMPLOYEES:  "WHILE I AM ON MY FEET I WILL TAKE THE
OPPORTUNITY TO SAY IN REGARD TO THE PASS AMENDMENT OR PROVISION THAT I
HAVE RECEIVED, AS OTHER SENATORS HAVE, A GREAT MANY TELEGRAMS FROM
RAILWAY EMPLOYEES AND FROM ORGANIZATIONS OF RAILWAY EMPLOYEES
PROTESTING AGAINST ANY PROVISION BEING INCORPORATED HERE THAT WILL
PREVENT THEM FROM BEING SUPPLIED WITH OR FROM ACCEPTING FREE
TRANSPORTATION.  I SHALL NOT TAKE TIME TO DISCUSS THAT, AS IT HAS BEEN
FULLY DISCUSSED.  I SIMPLY WISH TO SAY THAT I FULLY AGREE WITH THEM,
AND I BELIEVE THAT WE OUGHT NOT TO ENACT ANY SUCH LEGISLATION, AND
SHOULD WE DO SO IT WOULD, IN MY JUDGMENT, BE PERPETRATING A VERY GREAT
INJUSTICE UPON THOSE PEOPLE.  THE MATTER OF FREE TRANSPORTATION, AS THE
SENATOR FROM WISCONSIN (MR. SPOONER) SAID YESTERDAY, ENTERS PARTLY INTO
THE CONSIDERATION FOR THEIR EMPLOYMENT, AND WE HAVE NO MORAL RIGHT TO
DEPRIVE THEM OF THAT PRIVILEGE."  40 CONG. REC. 7981.  SEE ALSO ID. AT
7984-7985.  SEE SEN. REP. NO. 1242, 59TH CONG., 1ST SESS., VIEWS OF MR.
TILLMAN AND MR. NEWLANDS, PP. 10, 16; 1 SHARFMAN, THE INTERSTATE
COMMERCE COMMISSION 44(1931); SASSAMAN V. PENNSYLVANIA R. CO., 144 F.2D
950, 956, NN. 7 AND 8. 

FN8  THE BOERING CASE WAS SUPPORTED BY THE FOLLOWING STATEMENT:  "THE
RESULT WE HAVE REACHED CONFORMS THE LAW APPLICABLE TO THE PRESENT ISSUE
TO THAT MORAL SENSE WHICH JUSTLY HOLDS THOSE WHO ACCEPT GRATUITIES AND
ACTS OF HOSPITALITY TO PERFORM THE CONDITIONS ON WHICH THEY ARE
GRANTED."  193 U.S. AT 451. 

FN9  RAILROAD CO. V. LOCKWOOD, 17 WALL.  357, 368.  SEE JACOBUS V.
ST. PAUL & C.R. CO., 20 MINN. 125, 130:  "WHETHER THE CASE BE ONE OF A
PASSENGER FOR HIRE,  - A MERELY GRATUITOUS PASSENGER,  - OR OF A
PASSENGER UPON A CONDITIONED FREE PASS, AS IN THIS INSTANCE, THE
INTEREST OF THE STATE IN THE SAFETY OF THE CITIZEN IS OBVIOUSLY THE
SAME.  THE MORE STRINGENT THE RULE AS TO THE DUTY AND LIABILITY OF THE
CARRIER, AND THE MORE RIGIDLY IT IS ENFORCED, THE GREATER WILL BE THE
CARE EXERCISED, AND THE MORE APPROXIMATELY PERFECT THE SAFETY OF THE
PASSENGER." 
..END :






















WOODS V. STONE, 333 U.S. 472 


NO. 392.  ARGUED FEBRUARY 4, 1948.  - DECIDED MARCH 15, 1948.  - 163
F.2D 393, REVERSED. 


1.  THE ONE-YEAR PERIOD OF LIMITATIONS PRESCRIBED BY SEC. 205(E) OF
THE EMERGENCY PRICE CONTROL ACT OF 1942 AS AMENDED, ON AN ACTION
AGAINST A LANDLORD ON ACCOUNT OF AN OVERCHARGE IN RENT OF PROPERTY
WHICH THE LANDLORD HAD FAILED TO REGISTER AS REQUIRED BY RENT
REGULATIONS, BEGINS TO RUN NOT FROM THE DATE OF PAYMENT OF THE RENT BUT
FROM THE DATE OF THE LANDLORD'S FAILURE TO COMPLY WITH A REFUND ORDER. 
PP. 473-478. 

2.  FAILURE OF THE LANDLORD TO MAKE REFUND IN ACCORDANCE WITH THE
REFUND ORDER IS A VIOLATION OF AN "ORDER  ...  PRESCRIBING A MAXIMUM"
RENT UNDER SEC. 205(E) AND GIVES RISE TO THE CAUSE OF ACTION CREATED BY
THAT SECTION.  P. 477. 

3.  THE LANDLORD'S OWN FAILURE TO REGISTER THE PROPERTY HAVING
RENDERED THE PAYMENTS OF RENT SUBJECT TO REVISION AND TO REFUND, UNDER
LEGISLATION AND REGULATIONS IN FORCE WHEN THE PAYMENT WERE MADE, THE
OBJECTION TO THE REFUND ORDER AS RETROACTIVE CAN NOT BE SUSTAINED.  PP.
477-478. 

WOODS, HOUSING EXPEDITER, V. STONE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE PRICE ADMINISTRATOR, PREDECESSOR OF THE HOUSING EXPEDITER,
BROUGHT AN ACTION AGAINST THE RESPONDENT UNDER SEC. 205(E) OF THE
EMERGENCY PRICE CONTROL ACT OF 1942 AS AMENDED, ON ACCOUNT OF AN
OVERCHARGE IN THE RENTAL OF PROPERTY.  THE DISTRICT COURT HELD THAT THE
PERIOD OF LIMITATIONS UNDER THE ACT BEGAN TO RUN FROM THE TIME OF THE
OVERCHARGE, AND NOT FROM THE TIME OF THE RESPONDENT'S FAILURE TO MAKE
REFUND PURSUANT TO A REFUND ORDER.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  163 F.2D 393.  THIS COURT GRANTED CERTIORARI, LIMITED TO THE
QUESTION OF THE STATUTE OF LIMITATIONS.  332 U.S. 835.  REVERSED, P.
478. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

RESPONDENT STONE OWNED A HOUSE IN MOORESVILLE, INDIANA WHICH HE
RENTED TO ONE LOCKE FOR $75 PER MONTH BEGINNING ON OR ABOUT AUGUST 1,
1944.  AS THIS WAS THE FIRST RENTAL OF THE PREMISES, THE APPLICABLE LAW
FN1  AND REGULATIONS N2 IMPOSED ON THE OWNER A DUTY TO FILE A
REGISTRATION STATEMENT WITHIN THIRTY DAYS. 

THE RESPONDENT FAILED TO REGISTER THE PROPERTY.  HE SOLD IT IN APRIL
1945 AND REGISTRATION BY THE NEW OWNER BROUGHT NOTICE TO THE AREA RENT
DIRECTOR OF RESPONDENT'S PRIOR RENTING OF THE PROPERTY WITHOUT
COMPLYING WITH THE REGISTRATION REQUIREMENT.  ON JUNE 28, 1945, THE
DIRECTOR, PURSUANT TO THE REGULATIONS, REDUCED THE RENTAL FROM $75 TO
$45 PER MONTH, EFFECTIVE FROM THE FIRST RENTAL, AND ORDERED THE EXCESS
REFUNDED WITHIN THIRTY DAYS THEREAFTER.  RESPONDENT FAILED TO REFUND,
THE TENANT DID NOT SUE AND THIS ACTION WAS INSTITUTED BY THE PRICE
ADMINISTRATOR.  THE DISTRICT COURT AND THE COURT OF APPEALS, AMONG
OTHER THINGS, HELD THAT THE ONE-YEAR STATUTE OF LIMITATIONS RAN FROM
THE DATES OF PAYMENT OF THE RENTALS.  163 F.2D 393.  THIS CONFLICTED
WITH THE HOLDING OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT WHICH,
UNDER SIMILAR CIRCUMSTANCES, HELD THAT THE LIMITATION PERIOD STARTED
UPON DEFAULT IN REFUNDING THE EXCESS WITHIN THIRTY DAYS AFTER THE
REFUND ORDER.  CREEDON V. BABCOCK, 163 F.2D 480.  WE GRANTED CERTIORARI
LIMITED TO THIS QUESTION.  332 U.S. 835. 

NO QUESTION IS RAISED, AND NONE COULD HAVE BEEN RAISED IN THIS
PROCEEDING, AS TO THE VALIDITY OF THE RELEVANT REGULATIONS AND THE
REFUND ORDER, EITHER ON THE GROUND OF RETROACTIVITY OR OTHERWISE,
BECAUSE ANY CHALLENGE TO THE VALIDITY OF EITHER WOULD HAVE TO GO TO THE
EMERGENCY COURT OF APPEALS.  50 U.S.C. APP. (SUPP. V, 1946) SEC. 924;
BOWLES V. WILLINGHAM, 321 U.S. 503.  SEE ALSO WOODS V. CLOYD W. MILLER
CO., 333 U.S. 138.  TAKING THE LEGISLATION, THE REGULATIONS AND THE
ORDER TO BE VALID EXERCISES OF GOVERNMENTAL POWER, AS WE ARE THUS
REQUIRED TO DO, THE ONLY QUESTION BEFORE US IS WHEN DO EXCESSIVE
COLLECTIONS BY THE LANDLORD BEGIN TO ENJOY THE SHELTER OF THE STATUTE
OF LIMITATIONS? 

UNDER THE SYSTEM OF RENT CONTROL AS ESTABLISHED, A LANDLORD IS
REQUIRED TO REGISTER RENTED ACCOMMODATIONS WITHIN THIRTY DAYS AFTER
THEY ARE FIRST DEVOTED TO THAT USE.  THIS BRINGS NOTICE TO THE CONTROL
AUTHORITY THAT THE PREMISES ARE WITHIN ITS OFFICIAL RESPONSIBILITY AND
PROVIDES DATA FOR QUICK, IF TENTATIVE, DETERMINATION AS TO WHETHER THE
RENTAL EXACTED EXCEEDS THE LEVEL PERMITTED BY THE POLICY OF CONGRESS
SET OUT IN THE STATUTE. 

BUT WHEN, AS IN THIS CASE, THE LANDLORD DOES NOT COMPLY WITH THIS
REQUIREMENT, THERE IS LIKELIHOOD THAT, AS HAPPENED HERE, HIS
TRANSACTION WILL BE OVERLOOKED FOR SOME TIME OR PERHAPS ESCAPE SCRUTINY
ENTIRELY.  BUT THE LANDLORD IS NOT ALLOWED THUS TO PROFIT FROM HIS OWN
DISOBEDIENCE OF THE LAW.  IF HE COULD KEEP THE EXCESS COLLECTIONS BY
THUS RETARDING OR PREVENTING SCRUTINY OF HIS CONTRACT, HE WOULD GAIN AN
ADVANTAGE OVER ALL LANDLORDS WHO COMPLIED WITH THE ACT AS WELL AS OVER
TENANTS WHOSE NECESSITY FOR SHELTER IS TOO PRESSING TO ADMIT OF
BARGAINING OVER PRICE.  THE PLAN THEREFORE PROVIDES THAT, DESPITE HIS
FAILURE TO REGISTER, THE LANDLORD MAY CONTINUE TO COLLECT HIS
UNAPPROVED PRICE, BUT ONLY ON CONDITION THAT IT IS SUBJECT TO REVISION
BY THE PUBLIC AUTHORITY AND TO A REFUND OF ANYTHING THEN FOUND TO HAVE
BEEN EXCESSIVE.  FN3 

THE PLAN OF THE STATUTE AND THE REGULATIONS ISSUED PURSUANT TO IT WAS
APPLIED IN THIS CASE.  THE LANDLORD FAILED TO REGISTER THE PROPERTY. 
HIS RENTAL OPERATIONS ESCAPED NOTICE OF THE AUTHORITIES UNTIL
FORTUITOUSLY DISCLOSED.  HE COLLECTED AS HE HAD A RIGHT TO DO, BUT
SUBJECT TO READJUSTMENT, A RENTAL FIXED BY HIMSELF THAT WAS FOUND ON
INQUIRY TO EXCEED BY 66-2/3% WHAT WAS FAIR RENTAL VALUE OF THE
PROPERTY.  HE WAS ORDERED TO REFUND THE EXCESS.  HE NOW CONTENDS THAT
HE CAN KEEP ALL OF IT THAT HE COLLECTED UPWARDS OF A YEAR BEFORE THE
ACTION WAS COMMENCED, UPON THE GROUND THAT THE ONE-YEAR STATUTE OF
LIMITATIONS RUNS,  FN4  NOT FROM THE DATE OF HIS DEFAULT IN OBEYING THE
REFUND ORDER, BUT FROM THE DATE OF EACH COLLECTION OF RENTAL. 

WE CANNOT SUSTAIN HIS CONTENTION.  THE STATUTE AND REGULATIONS MADE
HIS RENTALS TENTATIVE BUT NOT UNLAWFUL.  UNTIL THE CONTINGENCY OF
READJUSTMENT OCCURRED, THE TENANT COULD HAVE HAD NO CAUSE OF ACTION FOR
RECOVERY OF ANY PART OF THE RENTAL EXACTED BY THE LANDLORD.  THE CAUSE
OF ACTION NOW DOES NOT REST UPON, AND HENCE CANNOT DATE FROM, MERE
COLLECTION.  THE DUTY TO REFUND WAS CREATED AND MEASURED BY THE REFUND
ORDER AND WAS NOT BREACHED UNTIL THAT ORDER WAS DISOBEYED.  IT WOULD BE
UNUSUAL, TO SAY THE LEAST, IF A STATUTORY SCHEME WERE TO BE CONSTRUED
TO INCLUDE A PERIOD DURING WHICH AN ACTION COULD NOT BE COMMENCED AS A
PART OF THE TIME WITHIN WHICH IT WOULD BECOME BARRED.  UNITED STATES V.
WURTS, 303 U.S. 414.  WE THINK NO SUCH RESULT WAS EXPRESSED OR
INTENDED.  IT WAS FROM THE VIOLATION WHICH OCCURRED WHEN THE ORDER WAS
NOT OBEYED WITHIN THE REQUIRED TIME THAT THE STATUTE OF LIMITATIONS
COMMENCED TO RUN.  CF. RAWLINGS V. RAY, 312 U.S. 96; FISHER V. WHITON,
317 U.S. 217; COPE V. ANDERSON, 331 U.S. 461. 

IT IS NOW SUGGESTED THAT NO CAUSE OF ACTION CAN BE BASED ON A REFUND
ORDER, IRRESPECTIVE OF ITS VALIDITY.  AS WE HAVE POINTED OUT, THE
VALIDITY OF THE REGULATION AND ORDER ARE CONCLUSIVE UPON US HERE.  THIS
CAUSE OF ACTION IS BASED UPON VIOLATION OF AN "ORDER  ...  PRESCRIBING
A MAXIMUM (RENT)  ...  "  THE COMMAND TO REFUND CANNOT BE TREATED AS A
THING APART, BUT MUST BE TAKEN IN ITS SETTING AS AN INTEGRAL AND
NECESSARY PART OF THE ORDER FIXING THE MAXIMUM RENT.  IT WAS THIS ORDER
THAT WAS DISOBEYED.  IT WOULD BE A STRANGE SITUATION IF THERE WERE
AUTHORITY TO ORDER THE LANDLORD TO MAKE A REFUND BUT NO LEGAL
OBLIGATION ON HIS PART TO PAY IT.  WE THINK IT CLEAR THAT DEFAULT IN
OBEDIENCE TO THE REQUIREMENT OF REFUND GIVES RISE TO THE CAUSE OF
ACTION SUED UPON HEREIN. 

IT IS ALSO SUGGESTED THAT THE REFUND ORDER APPLIES THE LAW TO THE
LANDLORD RETROACTIVELY.  QUITE APART FROM THE FACT THAT THIS IS AN
OBJECTION TO THE ORDER ITSELF RATHER THAN TO THE QUESTION OF LIMITATION
OF TIME, WE THINK THE SUGGESTION TO BE WITHOUT MERIT.  THIS IS NOT THE
CASE OF A NEW LAW REACHING BACKWARDS TO MAKE PAYMENTS ILLEGAL THAT WERE
FREE OF INFIRMITY WHEN MADE.  BY LEGISLATION AND REGULATION IN FORCE
BEFORE THE COLLECTIONS WERE MADE, THE LANDLORD'S OWN DEFAULT IN
REGISTERING HAD RENDERED THESE PAYMENTS CONDITIONAL, SUBJECT TO
REVISION AND TO REFUND.  READJUSTMENT UNDER THESE CONDITIONS CANNOT BE
SAID TO BE RETROACTIVE LAW MAKING. 

WE HOLD THAT THE ONE-YEAR STATUTE OF LIMITATIONS BEGAN TO RUN ON THE
DATE THAT A DUTY TO REFUND WAS BREACHED, AND ON THIS POINT ONLY WE
REVERSE THE JUDGMENT OF THE COURT BELOW.  REVERSED. 

FN1  EMERGENCY PRICE CONTROL ACT OF 1942, 56 STAT. 23, AS AMENDED BY
STABILIZATION EXTENSION ACT OF 1944, 58 STAT. 632, 50 U.S.C. APP.
(SUPP. V, 1946) SEC. 901 ET SEQ. 

FN2  SECTION 7, RENT REGULATIONS FOR HOUSING, 8 FED. REG. 14663, 10
FED. REG. 3436, PROVIDING IN PART AS FOLLOWS:  "REGISTRATION - (A)
REGISTRATION STATEMENT.  ON OR BEFORE THE DATE SPECIFIED IN SCHEDULE A
OF THIS REGULATION, OR WITHIN 30 DAYS AFTER THE PROPERTY IS FIRST
RENTED, WHICHEVER DATE IS THE LATER, EVERY LANDLORD OF HOUSING
ACCOMMODATIONS RENTED OR OFFERED FOR RENT SHALL FILE IN TRIPLICATE A
WRITTEN STATEMENT ON THE FORM PROVIDED THEREFOR TO BE KNOWN AS A
REGISTRATION STATEMENT.  THE STATEMENT SHALL IDENTIFY EACH DWELLING
UNIT AND SPECIFY THE MAXIMUM RENT PROVIDED BY THIS REGULATION FOR SUCH
DWELLING UNIT AND SHALL CONTAIN SUCH OTHER INFORMATION AS THE
ADMINISTRATOR SHALL REQUIRE.  THE ORIGINAL SHALL REMAIN ON FILE WITH
THE ADMINISTRATOR AND HE SHALL CAUSE ONE COPY TO BE DELIVERED TO THE
TENANT AND ONE COPY, STAMPED TO INDICATE THAT IT IS A CORRECT COPY OF
THE ORIGINAL, TO BE RETURNED TO THE LANDLORD.  ...  " 

FN3  SECTION 4, RENT REGULATIONS FOR HOUSING, 8 FED. REG. 14663, 10
FED. REG. 3436, PROVIDING IN PART AS FOLLOWS:  "MAXIMUM RENTS.  ...
(E) FIRST RENT AFTER EFFECTIVE DATE.  FOR (1) NEWLY CONSTRUCTED HOUSING
ACCOMMODATIONS WITHOUT PRIORITY RATING FIRST RENTED ON OR AFTER THE
EFFECTIVE DATE OF REGULATION, OR (2) HOUSING ACCOMMODATIONS CHANGED ON
OR AFTER SUCH EFFECTIVE DATE SO AS TO RESULT IN AN INCREASE OR DECREASE
OF THE NUMBER OF DWELLING UNITS IN SUCH HOUSING ACCOMMODATIONS, OR (3)
HOUSING ACCOMMODATIONS NOT RENTED AT ANY TIME DURING THE TWO MONTHS
ENDING ON THE MAXIMUM RENT DATE NOR BETWEEN THAT DATE AND THE EFFECTIVE
DATE, THE FIRST RENT FOR SUCH ACCOMMODATIONS AFTER THE CHANGE OR THE
EFFECTIVE DATE, AS THE CASE MAY BE, BUT IN NO EVENT MORE THAN THE
MAXIMUM RENT PROVIDED FOR SUCH ACCOMMODATIONS BY ANY ORDER OF THE
ADMINISTRATOR ISSUED PRIOR TO SEPTEMBER 22, 1942.  WITHIN 30 DAYS AFTER
SO RENTING THE LANDLORD SHALL REGISTER THE ACCOMMODATIONS AS PROVIDED
IN SECTION 7.  THE ADMINISTRATOR MAY ORDER A DECREASE IN THE MAXIMUM
RENT AS PROVIDED IN SECTION 5(C). 

"IF THE LANDLORD FAILS TO FILE A PROPER REGISTRATION STATEMENT WITHIN
THE TIME SPECIFIED (EXCEPT WHERE A REGISTRATION STATEMENT WAS FILED
PRIOR TO OCTOBER 1, 1943), THE RENT RECEIVED FOR ANY RENTAL PERIOD
COMMENCING ON OR AFTER THE DATE OF THE FIRST RENTING OR OCTOBER 1,
1943, WHICHEVER IS THE LATER, SHALL BE RECEIVED SUBJECT TO REFUND TO
THE TENANT OF ANY AMOUNT IN EXCESS OF THE MAXIMUM RENT WHICH MAY LATER
BE FIXED BY AN ORDER UNDER SECTION 5(C)(1).  SUCH AMOUNT SHALL BE
REFUNDED TO THE TENANT WITHIN 30 DAYS AFTER THE DATE OF ISSUANCE OF THE
ORDER.  ...  " 

FN4  SECTION 205(E) OF THE ACT AS AMENDED, 50 U.S.C. APP. (SUPP. V,
1946) SEC. 925(E) PROVIDES: "IF ANY PERSON SELLING A COMMODITY VIOLATES
A REGULATION, ORDER, OR PRICE SCHEDULE PRESCRIBING A MAXIMUM PRICE OR
MAXIMUM PRICES, THE PERSON WHO BUYS SUCH COMMODITY FOR USE OR
CONSUMPTION OTHER THAN IN THE COURSE OF TRADE OR BUSINESS MAY, WITHIN
ONE YEAR FROM THE DATE OF THE OCCURRENCE OF THE VIOLATION, EXCEPT AS
HEREINAFTER PROVIDED, BRING AN ACTION AGAINST THE SELLER ON ACCOUNT OF
THE OVERCHARGE.  ...  FOR THE PURPOSES OF THIS SECTION THE PAYMENT OR
RECEIPT OF RENT FOR DEFENSE-AREA HOUSING ACCOMMODATIONS SHALL BE DEEMED
THE BUYING OR SELLING OF A COMMODITY, AS THE CASE MAY BE  ...  IF ANY
PERSON SELLING A COMMODITY VIOLATES A REGULATION, ORDER, OR PRICE
SCHEDULE PRESCRIBING A MAXIMUM PRICE OR MAXIMUM PRICES, AND THE BUYER
EITHER FAILS TO INSTITUTE AN ACTION UNDER THIS SUBSECTION WITHIN THIRTY
DAYS FROM THE DATE OF THE OCCURRENCE OF THE VIOLATION OR IS NOT
ENTITLED FOR ANY REASON TO BRING THE ACTION, THE ADMINISTRATOR MAY
INSTITUTE SUCH ACTION ON BEHALF OF THE UNITED STATES WITHIN SUCH ONE
YEAR PERIOD.  ...  " 

THE FUNCTIONS OF THE ADMINISTRATOR WERE SUBSEQUENTLY TRANSFERRED TO
THE HOUSING EXPEDITER WHO APPEARS AS PETITIONER HERE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I HAD SUPPOSED THAT NO RULE OF JUDICIAL ADMINISTRATION WAS BETTER
SETTLED THAN THAT THE COURT SHOULD RESTRICT ITSELF TO THE QUESTIONS
PRESENTED IN A PETITION FOR CERTIORARI.  THIS IS ESPECIALLY TRUE WHERE,
AS HERE, THE PETITION WAS GRANTED BUT "LIMITED TO THE QUESTION AS TO
THE STATUTE OF LIMITATIONS PRESENTED BY THE PETITION FOR THE WRIT," 332
U.S. 835, AND THE CASE WAS TRANSFERRED TO THE SUMMARY DOCKET.  THE
EXCEPTIONS TO THIS RULE ARE RARE, AS WHERE THE JURISDICTION OF THIS
COURT OR OF THE LOWER COURTS IS PLAINLY WANTING, OR WHERE A PATENT
ERROR IN FAVOREM VITAE IS TO BE NOTED.  IN ANY EVENT, IT IS CLEAR THAT
THIS CASE COULD NOT BE ONE OF THEM.  THE EXCLUSIVE JURISDICTION
PROVISIONS OF THE EMERGENCY PRICE CONTROL ACT MAY WELL PRECLUDE OUR
CONSIDERATION OF THE VALIDITY OF THE "RETROACTIVE ORDER."  BUT SINCE AN
ISSUE OTHER THAN THAT PERTAINING TO THE STATUTE OF LIMITATIONS HAS BEEN
DEALT WITH, I WOULD LIKE TO ADD A FEW WORDS TO MR. JUSTICE JACKSON'S
OPINION, INASMUCH AS HIS IMMODERATE RESTRAINT DOES NOT LAY BARE THE
"MERITS" OF THE CONTROVERSY. 

THE CRUX OF THE MATTER IS THAT WHERE A LANDLORD RENTS NEW HOUSING
ACCOMMODATIONS BUT, AS HERE, DISOBEYS THE REGULATORY SCHEME AND FAILS
TO FILE A REGISTRATION STATEMENT, IF HE CHOOSES TO COLLECT THE RENT
THAT HE HIMSELF HAS FIXED, HE CAN DO SO ONLY CONTINGENTLY.  THE
ADMINISTRATOR MAY CATCH UP WITH HIM AND FIX WHAT WAS THE PROPER AMOUNT
FROM THE BEGINNING.  THE EXCESS IS ILLEGAL AND MUST THEREFORE BE
REFUNDED.    THERE IS NOTHING NOVEL ABOUT A REGULATORY SCHEME WHEREBY
LANDLORDS WHO VIOLATE THE LAW ARE DENIED THE RIGHT TO PROFIT THEREBY. 
IT HAS CONSISTENTLY BEEN UPHELD BY THE EMERGENCY COURT OF APPEALS.  150
EAST 47TH STREET CORP. V. CREEDON, 162 F.2D 206; SEE SENDEROWITZ V.
CLARK, 162 F.2D 912, 917; CF. EASLEY V. FLEMING, 159 F.2D 422.  WHEN
CONGRESS PROVIDED IN SEC. 2(G) OF THE ACT THAT REGULATIONS "MAY CONTAIN
SUCH PROVISIONS AS THE ADMINISTRATOR DEEMS NECESSARY TO PREVENT THE
CIRCUMVENTION OR EVASION THEREOF," 56 STAT. 23, 27, 50 U.S.C. (SUPP. V,
1946) SEC. 902(G), IT PLAINLY AUTHORIZED EFFECTIVE ADMINISTRATIVE
REMEDIES FOR DEALING WITH EVASION. 

IF SUCH AN ORDER IS TO BE TERMED "RETROACTIVE," IT COMES WITHIN THE
COURT'S RECENT RULING THAT "SUCH RETROACTIVITY MUST BE BALANCED AGAINST
THE MISCHIEF OF PRODUCING A RESULT WHICH IS CONTRARY TO A STATUTORY
DESIGN OR TO LEGAL AND EQUITABLE PRINCIPLES.  IF THAT MISCHIEF IS
GREATER THAN THE ILL EFFECT OF THE RETROACTIVE APPLICATION OF A NEW
STANDARD, IT IS NOT THE TYPE OF RETROACTIVITY WHICH IS CONDEMNED BY
LAW."  SECURITIES & EXCHANGE COMMISSION V. CHENERY CORP., 332 U.S. 194,
203. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I THINK IT IS PLAIN THAT A "REFUND ORDER" IS NOT A MAXIMUM RENT ORDER
SINCE IT DOES MORE THAN FIX A RENT CEILING.  I WOULD NOT STRETCH A
POINT TO CALL IT SUCH, IN VIEW OF THE AVERSION OUR LAW HAS TO THE
CREATION OF RETROACTIVE LIABILITIES.  THE COURT FINDS FAIRNESS IN THE
RESULT BECAUSE OF THE SPECIAL CIRCUMSTANCES OF THE CASE.  YET IT
RECOGNIZES A CAUSE OF ACTION CREATED NOT BY CONGRESS BUT BY THOSE WHO
ADMINISTER THE LAW.  THAT CAUSE OF ACTION IS WRITTEN INTO THE STATUTE
THROUGH THE ADDITION OF RETROACTIVE LIABILITIES. 

THE RENT COLLECTED BY THIS LANDLORD WAS THE MAXIMUM RENT WHICH HE
COULD AT THE TIME LAWFULLY COLLECT.  AT NO TIME DID HE COLLECT RENT IN
EXCESS OF THE CEILING THEN PREVAILING N1.  ALMOST A YEAR LATER THE
CEILING WAS REDUCED - FROM $75 A MONTH TO $45 A MONTH - AND THE
REDUCTION WAS MADE RETROACTIVE BY A "REFUND ORDER."  THE LANDLORD IS
NOW SUED BY THE GOVERNMENT FOR TREBLE THE AMOUNT OF THE SO-CALLED
OVERCHARGE. 

THE STATUTE GIVES A RIGHT OF ACTION AGAINST ANYONE WHO COLLECTS MORE
THAN THE PRESCRIBED MAXIMUM PRICE OR RENT.  SEC. 205(E).  FN2  NO RIGHT
OF ACTION TO SUE FOR OVERCHARGES PRESCRIBED BY A "REFUND ORDER" IS
CONTAINED IN SEC. 205(E) WHICH DEFINES THE CAUSE OF ACTION AND THE
STATUTE OF LIMITATIONS WITH WHICH WE ARE PRESENTLY CONCERNED.  FN3  THE
CAUSE OF ACTION THERE DESCRIBED IS BASED ON A VIOLATION OF A MAXIMUM
RENT ORDER.  THE STATUTE OF LIMITATIONS RUNS "FROM THE DATE OF THE
OCCURRENCE OF THE VIOLATION."  IT WILL NOT DO TO SAY THAT THE DATE OF
THE VIOLATION IN THIS SITUATION MUST RELATE TO THE "REFUND ORDER"
BECAUSE PRIOR THERETO THERE WAS NO VIOLATION.  SUCH AN INTERPRETATION
REWRITES SEC. 205(E) AND CREATES A CAUSE OF ACTION NOT ONLY FOR
VIOLATING A RENT CEILING BUT ALSO FOR VIOLATING A "REFUND ORDER."  THAT
CHANGES THE SCHEME OF THE SECTION.  THE RIGHT TO OBTAIN A RETURN OF
MONEY PAID NORMALLY TURNS ON CONDITIONS EXISTING WHEN IT WAS PAID.  THE
STATUTE OF LIMITATIONS USUALLY STARTS TO RUN THEN AND NOT AT SOME LATER
TIME.  CERTAINLY IT IS NOVEL LAW WHICH MAKES THE LEGALITY OF RENT
PAYMENTS TURN ON THE UNPREDICTABLE FUTURE ACTION OF AN OFFICIAL WHO IN
THE EXERCISE OF HIS DISCRETION DETERMINES THAT A LOWER RENTAL SHOULD
HAVE BEEN PAID.  YET THE COURT HAS TO ENTER THAT FIELD OF RETROACTIVE
LAW IN ORDER TO MAKE A "REFUND ORDER" A MAXIMUM RENT ORDER FOR THE
PURPOSES OF SEC. 205(E). 

CONGRESS HERE SAID IN EFFECT THAT ALL PAYMENTS FOR HOUSING AND
COMMODITIES IN EXCESS OF THE PREVAILING CEILING WERE UNLAWFUL; AND ALL
PAYMENTS AT THE CEILING WERE LAWFUL.  THE COURT IN ITS CONSTRUCTION OF
SEC. 205(E) DOES VIOLENCE TO THAT POLICY.  FOR IT EXPANDS THE STATUTORY
CAUSE OF ACTION SO AS TO PENALIZE THOSE WHO IN YESTERDAY'S TRANSACTIONS
EXACTED NO MORE THAN THE LAW AND REGULATIONS PERMITTED.  ANY SUCH USE
OF RETROACTIVE LAW TO CONSTRUE SEC. 205(E) MAKES IT MOST DOUBTFUL THAT
CONGRESS EVER ADOPTED THE MEANING NOW GIVEN THE SECTION.  I WOULD
CONCLUDE THAT CONGRESS HAD TAKEN THAT COURSE ONLY IF IT HAD SAID SO IN
UNAMBIGUOUS TERMS.  BUT ONE WHO READS SEC. 205(E) TO FIND ANY REFERENCE
TO LIABILITIES BASED ON "REFUND ORDERS" READS IN VAIN.  AND IT IS ONLY
VIOLATIONS OF THE ORDERS DESCRIBED IN THAT SECTION WHICH GIVE RISE TO
THE CAUSE OF ACTION UNDER IT. 

IT IS SAID, HOWEVER, THAT NO QUESTION CONCERNING THE VALIDITY OF THE
"REFUND ORDER" CAN BE CONSIDERED HERE BECAUSE ANY CHALLENGE TO ITS
VALIDITY WOULD HAVE TO GO TO THE EMERGENCY COURT OF APPEALS.  I DO NOT
DISPUTE THAT VIEW.  SEE BOWLES V. WILLINGHAM, 321 U.S. 503; YAKUS V.
UNITED STATES, 321 U.S. 414.  FOR CONGRESS IN SEC. 203 AND SEC. 204 OF
THE ACT PROVIDED A SPECIAL ADMINISTRATIVE PROCEDURE FOR TESTING THE
VALIDITY OF ANY PROVISION OF A "REGULATION, ORDER, OR PRICE SCHEDULE,"
A PROCEDURE THE CONSTITUTIONALITY OF WHICH WE HAVE SUSTAINED.  SEE
LOCKERTY V. PHILLIPS, 319 U.S. 182; YAKUS V. UNITED STATES, SUPRA.  BUT
WE ARE NOT HERE CONCERNED WITH THE POWER OF THE ADMINISTRATOR TO ISSUE
A "REFUND ORDER."  OUR QUESTION IS DIFFERENT AND INVOLVES ONLY A
QUESTION OF LAW TURNING ON THE MEANING OF SEC. 205(E).  WHAT WE HAVE TO
DECIDE IS WHETHER A "REFUND ORDER" IS A "REGULATION, ORDER, OR PRICE
SCHEDULE PRESCRIBING A MAXIMUM PRICE" WITHIN THE MEANING OF SEC.
205(E).  THAT IS THE FIRST STEP IN DETERMINING THE TIME FROM WHICH THE
STATUTORY PERIOD OF LIMITATIONS IS MEASURED. 

IN SHORT, THE CAUSE OF ACTION HERE AT ISSUE CAN BE CREATED ONLY BY
THE STATUTE, NOT BY REGULATIONS.  THE QUESTION IS NOT ONE OF VALIDITY
OF THE REGULATIONS BUT OF STATUTORY INTERPRETATION; NOT AN
INTERPRETATION TO DETERMINE WHETHER THE STATUTE AUTHORIZES THE
REGULATIONS, BUT WHETHER IT AUTHORIZES THE SUIT. 

FN1  THE MAXIMUM RENT FOR THE TYPE OF HOUSING INVOLVED HERE WAS THE
FIRST RENT AFTER THE EFFECTIVE DATE OF THE REGULATIONS, VIZ., $75 A
MONTH.  SEE RENT REGULATION FOR HOUSING, SEC. 4(E)(3), 8 F.R. 14663, 10
F.R. 3436. 

FN2  SECTION 205(E) PROVIDES, SO FAR AS HERE MATERIAL, AS FOLLOWS: 

"IF ANY PERSON SELLING A COMMODITY VIOLATES A REGULATION, ORDER, OR
PRICE SCHEDULE PRESCRIBING A MAXIMUM PRICE  ...  THE PERSON WHO BUYS
SUCH COMMODITY  ...  MAY, WITHIN ONE YEAR FROM THE DATE OF THE
OCCURRENCE OF THE VIOLATION,  ...  BRING AN ACTION AGAINST THE SELLER
ON ACCOUNT OF THE OVERCHARGE.  ...  FOR THE PURPOSES OF THIS SECTION
THE PAYMENT OR RECEIPT OF RENT  ...  SHALL BE DEEMED THE BUYING OR
SELLING OF A COMMODITY, AS THE CASE MAY BE; AND THE WORD 'OVERCHARGE'
SHALL MEAN THE AMOUNT BY WHICH THE CONSIDERATION EXCEEDS THE APPLICABLE
MAXIMUM PRICE." 

FN3  IT MAY BE THAT THE ADMINISTRATOR COULD SUE TO COMPEL COMPLIANCE
WITH THE REFUND ORDER UNDER SEC. 205(A).  SEE PORTER V. WARNER CO., 328
U.S. 395.  THERE MAY BE OTHER REMEDIES ARISING FROM RESPONDENT'S
FAILURE TO FILE A REGISTRATION STATEMENT.  THUS SEC. 4(E) OF THE RENT
REGULATIONS FOR HOUSING STATES:  "THE FOREGOING PROVISIONS AND ANY
REFUND THEREUNDER DO NOT AFFECT ANY CIVIL OR CRIMINAL LIABILITY
PROVIDED BY THE ACT FOR FAILURE TO FILE THE REGISTRATION STATEMENT
REQUIRED BY SECTION 7."  THERE IS NO NEED TO CANVASS THOSE
POSSIBILITIES HERE AS SEC. 205(E) SUPPLIES THE ONLY BASIS FOR
PETITIONER'S JUDGMENT IN THIS CASE. 
..END :










UNITED STATES V. EVANS, 333 U.S. 483 


NO. 15.  ARGUED FEBRUARY 3, 1948.  - DECIDED MARCH 15, 1948.  -
AFFIRMED. 


1.  SECTION 8 OF THE IMMIGRATION ACT OF 1917 DOES NOT MAKE IT A
PUNISHABLE OFFENSE TO CONCEAL OR HARBOR ALIENS NOT ENTITLED TO ENTER OR
RESIDE IN THE UNITED STATES, IN VIEW OF THE AMBIGUITY IN THE STATUTE AS
TO THE SCOPE OF THE OFFENSE AND AS TO THE PENALTY WHICH CONGRESS
INTENDED TO PRESCRIBE.  PP. 483-495. 

2.  ALTHOUGH CONGRESS INTENDED BY SEC. 8 TO MAKE CRIMINAL AND TO
PUNISH CONCEALING OR HARBORING OF ALIENS, THE UNCERTAINTY AS TO THE
NATURE OF THE OFFENSE OR OFFENSES AND AS TO THE APPLICABLE PENALTY
POSES A PROBLEM WHICH IS OUTSIDE THE BOUNDS OF JUDICIAL INTERPRETATION
AND CAN BE SOLVED ONLY BY CONGRESSIONAL ACTION.  P. 495. 

UNITED STATES V. EVANS. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

RESPONDENT WAS INDICTED FOR CONCEALING AND HARBORING ALIENS, IN
ALLEGED VIOLATION OF SEC. 8 OF THE IMMIGRATION ACT OF 1917.  THE
DISTRICT COURT GRANTED A MOTION TO DISMISS THE INDICTMENT.  THE UNITED
STATES APPEALED DIRECTLY TO THIS COURT UNDER THE CRIMINAL APPEALS ACT. 
AFFIRMED, P. 495. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 


"THAT ANY PERSON  ...  WHO SHALL BRING INTO OR LAND IN THE UNITED
STATES  ...  (OR SHALL ATTEMPT TO DO SO) OR SHALL CONCEAL OR HARBOR, OR
ATTEMPT TO CONCEAL OR HARBOR, OR ASSIST OR ABET ANOTHER TO CONCEAL OR
HARBOR IN ANY PLACE  ...  ANY ALIEN NOT DULY ADMITTED BY AN IMMIGRANT
INSPECTOR OR NOT LAWFULLY ENTITLED TO ENTER OR TO RESIDE WITHIN THE
UNITED STATES UNDER THE TERMS OF THIS ACT, SHALL BE DEEMED GUILTY OF A
MISDEMEANOR, AND UPON CONVICTION THEREOF SHALL BE PUNISHED BY A FINE
NOT EXCEEDING $2,000 AND BY IMPRISONMENT FOR A TERM NOT EXCEEDING FIVE
YEARS, FOR EACH AND EVERY ALIEN SO LANDED OR BROUGHT IN OR ATTEMPTED TO
BE LANDED OR BROUGHT IN."  39 STAT.  880, 8 U.S.C. SEC. 144. 

APPELLEE AND ANOTHER WERE INDICTED FOR CONCEALING AND HARBORING FIVE
NAMED ALIENS IN ALLEGED VIOLATION OF SEC. 8.  BEFORE TRIAL APPELLEE
MOVED THAT THE INDICTMENT BE DISMISSED ON THE GROUND THAT IT DID NOT
CHARGE A PUNISHABLE OFFENSE.  HE ARGUED THAT ALTHOUGH THE STATUTE
PROVIDED FOR TWO DIFFERENT CRIMES, ONE LANDING OR BRINGING IN
UNAUTHORIZED ALIENS, AND THE OTHER CONCEALING OR HARBORING SUCH ALIENS,
PUNISHMENT WAS PRESCRIBED IN TERMS ONLY FOR THE FORMER CRIME.  THE
DISTRICT COURT ACCEPTED THIS ARGUMENT AND GRANTED THE MOTION TO
DISMISS.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT PURSUANT TO
THE CRIMINAL APPEALS ACT, 28 U.S.C. SEC. 345, AND WE NOTED PROBABLE
JURISDICTION. 

THE CASE PRESENTS AN UNUSUAL AND A DIFFICULT PROBLEM IN STATUTORY
CONSTRUCTION.  IT CONCERNS NOT SO MUCH CONGRESS' INTENTION TO MAKE
CONCEALING OR HARBORING CRIMINAL AS IT DOES THE PENALTY TO BE APPLIED
TO THOSE OFFENSES INCLUDING ATTEMPTS.  THE CHOICE, AS MIGHT APPEAR ON
GLANCING AT THE STATUTE, IS NOT SIMPLY BETWEEN NO PENALTY, AT THE ONE
EXTREME, AND, AT THE OTHER, FINE PLUS IMPRISONMENT UP TO THE SPECIFIED
MAXIMA FOR EACH ALIEN CONCEALED OR HARBORED.  THE PROBLEM IS RATHER ONE
OF MULTIPLE CHOICE, PRESENTING AT LEAST THREE, AND PERHAPS FOUR,
POSSIBLE YET INCONSISTENT ANSWERS ON THE STATUTE'S WORDING. 
FURTHERMORE, AS WILL APPEAR, THE LEGISLATIVE HISTORY IS NEITHER CLEAR
NOR GREATLY HELPFUL IN ASCERTAINING WHICH OF THE POSSIBILITIES CALLING
FOR PUNISHMENT WAS THE ONE CONGRESS CONTEMPLATED. 

BEFORE DISCUSSING SPECIFICALLY THE ALTERNATIVES, WE NOTE THAT THE
GOVERNMENT RESTS PRIMARILY ON THE CLARITY WITH WHICH SEC. 8 INDICATES
CONGRESS' PURPOSE TO MAKE CONCEALING OR HARBORING CRIMINAL, RATHER THAN
UPON ANY LIKE INDICATION OF LEGISLATIVE INTENT CONCERNING THE PENALTY. 
FN1 BECAUSE THE PURPOSE TO PROSCRIBE THE CONDUCT IS CLEAR, IT IS SAID,
WE SHOULD NOT ALLOW THAT PURPOSE TO FAIL BECAUSE OF AMBIGUITY
CONCERNING THE PENALTY.  RATHER WE ARE ASKED TO MAKE IT EFFECTIVE BY
APPLYING THAT ONE OF THE POSSIBILITIES WHICH SEEMS MOST NEARLY TO
ACCORD WITH THE CRIMINAL PROSCRIPTION AND THE TERMS OF THE PENALIZING
PROVISION. 

ON THE OTHER HAND, APPELLEE DOES NOT REALLY DISPUTE THAT CONGRESS
MEANT, BY INSERTING THE AMENDMENT PROHIBITING CONCEALING OR HARBORING,
FN2  TO MAKE THOSE ACTS CRIMINAL.  BUT HE DENIES THAT IT IS POSSIBLE,
EITHER FROM THE SECTION'S WORDING OR FROM THE LEGISLATIVE HISTORY, TO
ASCERTAIN WITH ANY FAIR DEGREE OF ASSURANCE WHICH ONE OF THE POSSIBLE
PENAL CONSEQUENCES CONGRESS MAY HAVE HAD IN MIND.  FROM THIS HE FALLS
BACK UPON THE CONCLUSION INDICATED BY THE PREMISE, NAMELY, THAT THE
TASK OF RESOLVING THE DIFFICULTY GOES BEYOND DISPELLING AMBIGUITY IN
THE USUAL SENSE OF JUDICIALLY CONSTRUING STATUTES FN3  AND, IF
ATTEMPTED, WOULD REQUIRE THIS COURT TO INVADE THE LEGISLATIVE FUNCTION
AND, IN EFFECT, FIX THE PENALTY.  THE ARGUMENT IS THEREFORE NOT MERELY
THAT A RULE OF STRICT CONSTRUCTION SHOULD BE APPLIED IN PETITIONER'S
FAVOR.  IT IS RATHER THAT THE CHOICE THE GOVERNMENT ASKS US TO MAKE IS
SO BROAD AND SO DEEP, RESTING AMONG SUCH EQUALLY TENABLE THOUGH
INCONSISTENT POSSIBILITIES, THAT WE HAVE NO BUSINESS TO MAKE IT AT
ALL. 

EVEN IN CRIMINAL MATTERS A STRONG CASE WOULD BE REQUIRED TO BRING
ABOUT THE RESULT APPELLEE SEEKS.  FOR, WHERE CONGRESS HAS EXHIBITED
CLEARLY THE PURPOSE TO PROSCRIBE CONDUCT WITHIN ITS POWER TO MAKE
CRIMINAL AND HAS NOT ALTOGETHER OMITTED PROVISION FOR PENALTY, EVERY
REASONABLE PRESUMPTION ATTACHES TO THE PROSCRIPTION TO REQUIRE THE
COURTS TO MAKE IT EFFECTIVE IN ACCORD WITH THE EVIDENT PURPOSE.  THIS
IS AS TRUE OF PENALTY PROVISIONS AS IT IS OF OTHERS.  UNITED STATES V.
BROWN, 333 U.S. 18. 

BUT STRONG AS THE PRESUMPTION OF VALIDITY MAY BE, THERE ARE LIMITS
BEYOND WHICH WE CANNOT GO IN FINDING WHAT CONGRESS HAS NOT PUT INTO SO
MANY WORDS OR IN MAKING CERTAIN WHAT IT HAS LEFT UNDEFINED OR TOO VAGUE
FOR REASONABLE ASSURANCE OF ITS MEANING.  IN OUR SYSTEM, SO FAR AT
LEAST AS CONCERNS THE FEDERAL POWERS, DEFINING CRIMES AND FIXING
PENALTIES ARE LEGISLATIVE, NOT JUDICIAL, FUNCTIONS.  FN4  BUT GIVEN
SOME LEGISLATIVE EDICT, THE MARGIN BETWEEN THE NECESSARY AND PROPER
JUDICIAL FUNCTION OF CONSTRUING STATUTES AND THAT OF FILLING GAPS SO
LARGE THAT DOING SO BECOMES ESSENTIALLY LEGISLATIVE, IS NECESSARILY ONE
OF DEGREE. 

WE TURN THEN TO CONSIDER WHETHER THE GOVERNMENT IS ASKING THAT WE DO
TOO MUCH WHEN IT PUTS FORWARD A PREFERRED READING OF THE PENAL
PROVISION, PERHAPS SUGGESTS ANOTHER AS A PERMISSIBLE ALTERNATIVE, AND
IS PREPARED TO ACCEPT A THIRD, THOUGH DISAVOWING ITS COMPLETE
CONSISTENCY WITH CONGRESS' INTENT, IF NEITHER OF THE OTHERS IS
ADOPTED. 

THE GOVERNMENT'S PREFERRED READING WOULD IMPOSE THE SAME PENALTY FOR
CONCEALING OR HARBORING AS FOR BRINGING IN OR LANDING, NOTWITHSTANDING
THE "FOR EACH AND EVERY ALIEN" CLAUSE IS LIMITED EXPRESSLY TO ALIENS
"SO LANDED OR BROUGHT IN OR ATTEMPTED TO BE LANDED OR BROUGHT IN." 
UNDER THIS INTERPRETATION THE EFFECT OF THAT CLAUSE WOULD BE TO PROVIDE
ADDITIONAL PUNISHMENT, AS STATED IN THE BRIEF, "WHERE THE CRIME OF
LANDING OR BRINGING IN ALIENS OR THE CRIME OF CONCEALING OR HARBORING
ALIENS INVOLVES MORE THAN ONE ALIEN BROUGHT INTO THE COUNTRY
ILLEGALLY." 

THIS CONSTRUCTION IS ADMITTEDLY UNGRAMMATICAL AND THE FAILURE TO
INTEGRATE THE WORDING OF THE "EACH AND EVERY ALIEN" CLAUSE WITH THE
LANGUAGE OF THE 1917 AMENDMENT ADDING THE CONCEALING AND HARBORING
OFFENSES IS CONCEDED TO HAVE BEEN POSSIBLY DUE TO OVERSIGHT. 

IF ONLY IMPERFECT GRAMMAR STOOD IN THE WAY, THE CONSTRUCTION MIGHT BE
ACCEPTED.  BUT WE AGREE WITH APPELLEE THAT MORE IS INVOLVED.  THE
GOVERNMENT IN EFFECT CONCEDES THAT IN TERMS THE SECTION PRESCRIBES NO
PENALTY FOR CONCEALING OR HARBORING.  BUT IT ARGUES THAT INCLUSION OF
THEM AS OFFENSES BECOMES MEANINGLESS UNLESS THE PENALTY PROVISION, IN
SPITE OF ITS WORDING, IS CONSTRUED TO APPLY TO THEM AS WELL AS TO
BRINGING IN OR LANDING.  IN OTHER WORDS, BECAUSE CONGRESS INTENDED TO
AUTHORIZE PUNISHMENT, BUT FAILED TO DO SO, PROBABLY AS A RESULT OF
OVERSIGHT, WE SHOULD PLUG THE HOLE IN THE STATUTE. 

TO DO THIS WOULD BE TO GO VERY FAR INDEED, UPON THE SHEER WORDING OF
THE SECTION.  FOR IT WOULD MEAN IN EFFECT THAT WE WOULD ADD TO THE
CONCLUDING CLAUSE THE WORDS WHICH THE GOVERNMENT'S READING INSERTS,
"AND FOR EACH AND EVERY ALIEN SO CONCEALED OR HARBORED."  IT IS
POSSIBLE THAT CONGRESS MAY HAVE INTENDED THIS.  BUT FOR MORE THAN ONE
REASON WE CANNOT BE SURE OF THAT FACT. 

IN THE FIRST PLACE, THE SECTION AS ORIGINALLY ENACTED WAS LIMITED TO
ACTS OF SMUGGLING.  AND THERE IS SOME EVIDENCE IN THE LEGISLATIVE
HISTORY THAT THE ADDITION OF CONCEALING OR HARBORING WAS MEANT TO BE
LIMITED TO THOSE ACTS ONLY WHEN CLOSELY CONNECTED WITH BRINGING IN OR
LANDING, SO AS TO MAKE A CHAIN OF OFFENSES CONSISTING OF SUCCESSIVE
STAGES IN THE SMUGGLING PROCESS.  FN5 

BUT THAT EVIDENCE IS NOT CONCLUSIVE.  FN6  AND THE SECTION'S WORDING
IS SUSCEPTIBLE OF MUCH BROADER CONSTRUCTIONS.  ON THE LANGUAGE IT IS
POSSIBLE NOT ONLY TO TREAT CONCEALING OR HARBORING AS OFFENSES DISTINCT
AND DISCONNECTED FROM SMUGGLING OPERATIONS; IT IS ALSO POSSIBLE TO
REGARD THEM AS SEPARATE AND DISTINCT FROM EACH OTHER.  AND ON THE
BROADEST POSSIBLE INTERPRETATION, GIVING INDEPENDENT EFFECT TO THE
WORDS "OR NOT LAWFULLY ENTITLED  ...  TO RESIDE WITHIN THE UNITED
STATES,"  FN7  THE SECTION COULD BE TAKEN TO APPLY TO CONCEALING OR
HARBORING OF ALIENS LAWFULLY ADMITTED BUT UNLAWFULLY REMAINING WITHIN
THE COUNTRY. 

IN THAT EVENT AN INNKEEPER FURNISHING LODGING TO AN ALIEN LAWFULLY
COMING IN BUT UNLAWFULLY OVERSTAYING HIS VISA WOULD BE GUILTY OF
HARBORING, IF HE KNEW OF THE ILLEGAL REMAINING.  AND, WITH HIM, ONE
HARBORING AN ALIEN KNOWN TO HAVE ENTERED ILLEGALLY AT SOME EARLIER,
EVEN REMOTE, TIME WOULD INCUR THE PENALTIES PROVIDED FOR SMUGGLING, IF
THE GOVERNMENT'S POSITION GIVING IMPLIED EXTENSION OF THE PENALTY
PROVISION WERE ACCEPTED. 

WE DO NOT MENTION THESE POSSIBILITIES TO INTIMATE OPINION CONCERNING
THE REACH OF THE STATUTE WITH REFERENCE TO COVERING THEM, FOR NO SUCH
QUESTION IS SQUARELY BEFORE US.  BUT WE POINT THEM OUT BECAUSE THEY ARE
RELEVANT TO THE PROBLEM OF ASSURANCE OR REASONABLE CERTAINTY IN
ASSERTING THAT CONGRESS BY NECESSARY IMPLICATION INTENDED TO EXTEND THE
PENALTIES ORIGINALLY AND STILL CLEARLY PROVIDED FOR SMUGGLING TO ALL
OFFENSES COVERED BY THE LANGUAGE DEFINING THE CRIMES. 

THE VERY REAL DOUBT AND AMBIGUITY CONCERNING THE SCOPE OF THE ACTS
FORBIDDEN, IF ANY, BEYOND THOSE CLEARLY AND PROXIMATELY CONNECTED WITH
SMUGGLING RAISE EQUAL OR GREATER DOUBT THAT CONGRESS MEANT TO ENCOMPASS
ALL THOSE ACTS WITHIN THE PENAL PROVISIONS FOR SMUGGLING.  IF ACTS
DISCONNECTED FROM THAT PROCESS ARE FORBIDDEN, THE SEPARATE OFFENSES OF
CONCEALING AND MORE PARTICULARLY OF HARBORING, IF THE TWO ARE DISTINCT,
MIGHT REQUIRE, IN ANY SOUND LEGISLATIVE JUDGMENT, VERY DIFFERENT
PENALTIES FROM THOSE DESIGNED TO PREVENT OR DISCOURAGE SMUGGLING IN ITS
VARIOUS PHASES.  THAT IS ESSENTIALLY THE SORT OF JUDGMENT LEGISLATURES
RATHER THAN COURTS SHOULD MAKE. 

THE POSITION THE GOVERNMENT ASKS US TO TAKE INVOLVES THEREFORE A
MAJOR TASK IN TWO RESPECTS, NOT MERELY ONE.  THE FIRST IS TO EXPAND THE
PENAL LANGUAGE BEYOND THE EXPLICIT LIMITATION "FOR EACH AND EVERY ALIEN
SO LANDED OR BROUGHT IN," SO AS TO APPLY THE PENALTIES DESIGNED FOR
SMUGGLING TO ALL OFFENSES COVERED BY THE SECTION.  THE SECOND IS TO DO
THIS BLINDLY IN REFERENCE TO THE SCOPE AND QUALITY OF THE FORBIDDEN
ACTS TO WHICH THE EXTENSION IS TO BE MADE, THAT IS, WITHOUT RESOLVING
BEFOREHAND THE QUESTIONS WE HAVE NOTED AS ARISING ON THE FACE OF THE
OR HARBORING.  THE GOVERNMENT DOES NOT ASK US TO UNDERTAKE NOW TO SAY
HOW FAR THE SECTION MAY OR MAY NOT GO IN THESE NUMEROUS ASPECTS OF
DEFINING COVERAGE.  FN8  WE ARE NOT WILLING TO UNDERTAKE EXTENSION OF
THE PENALTY PROVISION BLINDFOLD, WITHOUT KNOWING IN ADVANCE TO WHAT
ACTS THE PENALTIES MAY BE APPLIED.  NOR ARE WE ANY MORE WILLING TO
DECIDE WHOLESALE AMONG THE VARIOUS POSSIBILITIES OF COVERAGE.  THAT
PROBLEM, SQUARELY PRESENTED IN CONCRETE INSTANCES, MIGHT BE RESOLVED
STEP BY STEP, WERE THERE NO DIFFICULTY OVER THE PENALTY.  BUT TO
RESOLVE IT BROADSIDE NOW FOR ALL CASES THE SECTION MAY COVER, ON THIS
INDIRECT PRESENTATION, WOULD BE TO PROCEED IN AN ESSENTIALLY
LEGISLATIVE MANNER FOR THE DEFINITION AND SPECIFICATION OF THE CRIMINAL
ACTS, IN ORDER TO MAKE A JUDICIAL DETERMINATION OF THE SCOPE AND
CHARACTER OF THE PENALTY. 

BEYOND THE DIFFICULTIES ARISING ON THE SECTION'S WORDING, THE
LEGISLATIVE HISTORY IS SUFFICENT IN ONE RESPECT, WHEN ADDED TO THE
OTHER OBSTACLES, TO MAKE THEM INSUPERABLE FOR ACCEPTING THE
GOVERNMENT'S PREFERRED READING.  IT DISCLOSES THAT BOTH BEFORE  FN9
AND AFTER  FN10  THE 1917 AMENDMENT THE IMMIGRATION AUTHORITIES AND
PARTICULARLY THE COMMISSIONER GENERAL REPEATEDLY SOUGHT FROM CONGRESS
THE SPECIFIC PENAL WORDING THE GOVERNMENT NOW ASKS US TO INSERT.  THESE
EFFORTS WERE MADE AS CONFLICTING JUDICIAL DECISIONS DEMONSTRATED THAT
THE COURTS WERE VERY MUCH AT SEA  FN11 AND THEIR FLOUNDERING WAS
BROUGHT TO CONGRESSIONAL ATTENTION.  FN12  IN EACH INSTANCE
NEVERTHELESS THE EFFORT WAS UNSUCCESSFUL. 

IT MAY WELL BE, AS THE GOVERNMENT INFERS, THAT THIS ONLY INCREASES
THE MYSTERY OF CONGRESS' FAILURE TO INCLUDE EXPLICIT PENALTIES WHEN IT
ADDED THE NEW OFFENSES.  IT IS POSSIBLE THAT CONGRESS MAY HAVE THOUGHT
NONE WERE NEEDED.  BUT THAT VIEW HARDLY EXPLAINS SATISFACTORILY THE
SUBSEQUENT REPEATED FAILURES TO CLARIFY THE MATTER, AFTER EXPERIENCE
HAD SHOWN THAT NEED.  WE CANNOT TAKE THEM AS IMPORTING CLEAR DIRECTION
TO THE COURTS TO DO WHAT CONGRESS ITSELF EITHER REFUSED OR FAILED ON
NOTICE TO DO UPON SO MANY OCCASIONS AND IMPORTUNITIES. 

WE ARE NOT ENTIRELY SURE THAT THE GOVERNMENT INTENDS TO PUT FORWARD
AS AN ALTERNATIVE SUGGESTION THE READING, ALREADY DISCUSSED, WHICH
WOULD EXTEND THE SMUGGLING PENALTIES TO THE SECTION'S BROADEST POSSIBLE
CONSTRUCTION IN RELATION TO DEFINITION AND COVERAGE OF CRIMINAL ACTS,
I.E., TO CONCEALING OR HARBORING OF ALIENS LAWFULLY ADMITTED BUT
UNLAWFULLY REMAINING.  BUT APPELLEE REGARDS THIS AS A TENDERED
POSSIBILITY AND SPECIFIED STATEMENTS IN THE GOVERNMENT'S BRIEF APPEAR
TO SUSTAIN HIS VIEW.  FN13  WHETHER APPELLEE IS CORRECT IN TAKING THE
STATEMENTS AS SUGGESTING AN INDEPENDENT ALTERNATIVE OR, ON THE OTHER
HAND, THEY WERE MADE, THOUGH NOT ACCURATELY PHRASED FOR THE PURPOSE, IN
SUPPORT OF THE GOVERNMENT'S PREFERRED POSITION, IS NOT GREATLY
MATERIAL.  FOR, IN ANY EVENT, WHAT HAS BEEN SAID ABOUT EXTENDING THE
PENALTY TO INCLUDE THE NARROWER RANGE OF FORBIDDEN ACTS APPLIES TO THE
BROADER ONE WITH EVEN GREATER FORCE AS CALLING FOR THE EXTENSION'S
REJECTION. 

THERE IS, FINALLY, THE THIRD POSSIBLE INTERPRETATION WHICH THE
GOVERNMENT CONCEDES NOT WHOLLY CONSISTENT WITH THE STATUTORY PURPOSE,
BUT SAYS NEVERTHELESS IS CLEARLY AUTHORIZED "IF A STRICTLY GRAMMATICAL
CONSTRUCTION OF SECTION 8 IS EMPLOYED."  THIS WOULD READ THE "FOR EACH
AND EVERY ALIEN" CLAUSE OUT OF THE SECTION INSOFAR AS OFFENSES OF
CONCEALING OR HARBORING ARE CONCERNED, WHILE LEAVING IT EFFECTIVE FOR
BRINGING IN OR LANDING.  IN OTHER WORDS, THE READING WOULD
DIFFERENTIATE THE TWO CLASSES OF OFFENSES FOR APPLYING THE PENALTY
PROVISION.  THE PRESCRIBED MAXIMUM PENALTIES WOULD BE MADE EFFECTIVE
FOR CONCEALING OR HARBORING, BUT WITHOUT AUGMENTING THEM ACCORDING TO
THE NUMBER OF ALIENS CONCEALED OR HARBORED, EVEN THOUGH PREVIOUSLY
LANDED OR BROUGHT IN, AT THE SAME TIME.  THAT INCREASE HOWEVER WOULD
CONTINUE IN FORCE FOR BRINGING IN OR LANDING.  FN14 

THE WORDING OF SEC. 8 CAN BE MADE TO SUPPORT THIS INTERPRETATION ONLY
BY TREATING THE "FOR EACH AND EVERY ALIEN" CLAUSE AS AMBIVALENTLY
SEPARABLE IN RELATION TO THE TWO CLASSES OF OFFENSES.  NOTHING ON THE
FACE OF THE SECTION SUGGESTS SUCH A READING.  THE COMMA PRECEDING THE
FINAL CLAUSE IS NOT EQUAL TO THE BURDEN OF SUPPORTING THE
CONSTRUCTION.  THE CLAUSE WAS PART OF THE SECTION BEFORE THE CONCEALING
AND HARBORING OFFENSES WERE ADDED.  PREVIOUSLY THERE COULD HAVE BEEN NO
POSSIBLE INTENT OR PURPOSE TO APPLY THE CLAUSE TO SOME OF THE OFFENSES
BUT NOT TO OTHERS.  THE CLAUSE'S FUNCTION WAS SOLELY TO AUGMENT THE
PENALTY WHEN MORE THAN ONE ALIEN WAS INVOLVED.  THAT FUNCTION WAS NOT
CHANGED WHEN THE NEW OFFENSES WERE ADDED.  FN15  NEITHER THE
AMENDMENT'S WORDING NOR ITS HISTORY EVINCES ANY PURPOSE TO INCREASE
PUNISHMENT, PROPORTIONATELY TO THE NUMBER OF ALIENS INVOLVED, FOR ONE
CLASS OF OFFENDERS BUT NOT FOR THE OTHER.  THE CONSTRUCTION, LIKE THE
PREFERRED ONE, IS A CONSTRUCTION OF NECESSITY, TO BE JUSTIFIED IF AT
ALL ONLY BY THE FACT THAT WITHOUT IT THE STATUTE BECOMES UNENFORCEABLE
FOR THE OFFENSES OF CONCEALING OR HARBORING. 

IF THERE WERE LESS INCONSISTENCY AMONG THE TENTATIVE POSSIBILITIES
PUT FORWARD OR GREATER CONSISTENCY WITH THE SECTION'S WORDING IMPLICIT
IN ONE, RESOLUTION OF THE DIFFICULTY BY JUDICIAL ACTION WOULD INVOLVE A
LESS WIDE DEPARTURE FROM THE COMMON FUNCTION OF JUDICIAL INTERPRETATION
OF STATUTES THAN IS ACTUALLY REQUIRED BY THIS CASE.  BUT HERE THE TASK
IS TOO LARGE.  WITH BOTH OF THE PARTIES WE AGREE THAT CONGRESS MEANT TO
MAKE CRIMINAL AND TO PUNISH ACTS OF CONCEALING OR HARBORING.  BUT WE DO
NOT KNOW, WE CAN ONLY GUESS WITH TOO LARGE A DEGREE OF UNCERTAINTY,
WHICH ONE OF THE SEVERAL POSSIBLE CONSTRUCTIONS CONGRESS THOUGHT TO
APPLY.  THE UNCERTAINTY EXTENDS NOT ONLY TO THE INCONSISTENT PENALTIES
SAID TO SATISFY THE SECTION, EITHER GRAMMATICALLY OR SUBSTANTIVELY IF
NOT GRAMMATICALLY.  IT ALSO INCLUDES WITHIN VARYING RANGES AT LEAST
POSSIBLE, AND WE THINK SUBSTANTIAL, DOUBT OVER THE SECTION'S REACH TO
BRING IN VERY DIFFERENT ACTS WHICH CONCEIVABLY MIGHT BE HELD TO BE
CONCEALING OR HARBORING.  THE LATTER AMBIGUITY AFFECTS THE FORMER AND
THEIR SUM MAKES A TASK FOR US WHICH AT BEST COULD BE ONLY GUESSWORK. 

THIS IS A TASK OUTSIDE THE BOUNDS OF JUDICIAL INTERPRETATION.  IT IS
BETTER FOR CONGRESS, AND MORE IN ACCORD WITH ITS FUNCTION, TO REVISE
THE STATUTE THAN FOR US TO GUESS AT THE REVISION IT WOULD MAKE.  THAT
TASK IT CAN DO WITH PRECISION.  WE COULD DO NO MORE THAN MAKE
SPECULATION LAW. 

THE JUDGMENT IS AFFIRMED. 

FN1  SINCE THE ISSUES ARISE ON DISMISSAL OF THE INDICTMENT WHICH
CHARGES BOTH CONCEALING AND HARBORING, AS WELL AS ATTEMPT TO CONCEAL
AND HARBOR, WE ARE NOT ASKED TO DETERMINE WHETHER "CONCEAL OR HARBOR"
AS USED IN SEC. 8 SPECIFIES ONLY ONE OFFENSE OR TWO DISTINCT ONES OR,
IF THE LATTER, THE DIFFERENCE BETWEEN THE TWO.  CF. NOTES 7 AND 8 INFRA
AND TEXT. 

FN2  SECTION 8 AS ENACTED ORIGINALLY IN 1907, 34 STAT. 900, COVERED
ONLY BRINGING IN OR LANDING AND ATTEMPTS TO BRING IN OR LAND.  THE
PROHIBITION OF CONCEALING OR HARBORING AND OF ATTEMPTING TO CONCEAL OR
HARBOR WAS ADDED BY AMENDMENT IN 1917.  39 STAT. 880. 

FN3  INDEED APPELLEE ASSERTS THAT THE WORDS OF SEC. 8 ARE
UNAMBIGUOUSLY TO THE EFFECT THAT FINE AND IMPRISONMENT ARE TO BE
IMPOSED "FOR EACH AND EVERY ALIEN SO LANDED OR BROUGHT IN  ...  ," NOT
"FOR EACH AND EVERY ALIEN SO CONCEALED OR HARBORED."  THIS VIEW REGARDS
THE CONCLUDING "FOR EACH AND EVERY ALIEN" CLAUSE AS AN INTEGRAL AND
INSEPARABLE PART OF THE PENALTY PROVISION FOR ALL OFFENSES PUNISHABLE
UNDER THE SECTION. 

FN4  UNITED STATES V. HUDSON AND GOODWIN, 7 CRANCH 32; UNITED STATES
V. BRITTON, 108 U.S. 199; UNITED STATES V. EATON, 144 U.S. 677; VIERECK
V. UNITED STATES, 318 U.S. 236, 241, 243-244. 

FN5  THE SENATE REPORT ACCOMPANYING THE 1917 AMENDMENT STATED THAT
"SUCH NEW PROVISIONS AS ARE INCLUDED ARE MERELY TO COMPLETE THE
DEFINITION OF THE CRIME OF SMUGGLING ALIENS INTO THE UNITED STATES AND
RELATED OFFENSES  ...  "  SEN. REP. NO. 352, 64TH CONG., 1ST SESS. 9. 

FN6  THERE IS NO INDICATION OF THE DEGREE OR CHARACTER OF THE
RELATION SUGGESTED BY THE WORDS "AND RELATED OFFENSES," SEE THE
PRECEDING NOTE, WITH REFERENCE TO THE PROXIMITY OF THE ACTS PROSCRIBED,
IN TIME AND PLACE, TO SMUGGLING OPERATIONS. 

FN7  THIS POSSIBILITY APPARENTLY IS NOT COMPREHENDED BY THE
INDICTMENT IN THIS CASE, WHICH SUBSTITUTES "AND" FOR THE "OR" GIVEN BY
THE STATUTORY WORDING IN DESCRIBING THE ALIENS CHARGED TO HAVE BEEN
CONCEALED AND HARBORED, VIZ., "WHICH SAID ALIEN PERSONS THEN AND THERE
WERE ALIENS NOT DULY ADMITTED TO THE UNITED STATES BY AN IMMIGRANT
INSPECTOR AND NOT LAWFULLY ENTITLED TO ENTER OR RESIDE IN THE UNITED
STATES...." 

EVEN IF THIS USE OF THE CONJUNCTIVE IN PLACE OF THE STATUTORY
DISJUNCTIVE, SEE TEXT OF SEC. 8 QUOTED AT THE BEGINNING OF THIS
OPINION, WOULD PREVENT APPLYING THIS INDICTMENT TO A CASE INVOLVING NO
ILLEGAL ENTRY, BUT ONLY ILLEGAL REMAINING, THAT FACT WOULD NOT PREVENT
THE DRAFTING OF OTHER INDICTMENTS TO COVER SUCH CASES OR PERHAPS
AMENDING THIS ONE TO GIVE IT THE DISJUNCTIVE EFFECT.  THESE
POSSIBILITIES ARE AS PERTINENT TO WHETHER THE SUGGESTED PENAL EXTENSION
SHOULD BE MADE AS IF ACTUALLY PRESENTED ON THE INDICTMENT IN ITS
PRESENT FORM. 

FN8  THE INDICTMENT NOT ONLY CONJOINS ILLEGAL REMAINING WITH ILLEGAL
ENTRY, CF. NOTE 7, BUT CHARGES THAT PETITIONER CONCEALED AND HARBORED
ALIENS "NOT DULY ADMITTED  ...  AND NOT LAWFULLY ENTITLED TO ENTER OR
RESIDE  ...  "  THUS, THE SPECIFIC CHARGE IN THIS CASE CANNOT BE SAID
TO BE LIMITED TO SMUGGLING, FOR NO WORDING OF THE STATUTE RELATING TO
BRINGING IN OR LANDING IS INCLUDED.  SUCH A LIMITATION COULD BE READ
INTO THE INDICTMENT ONLY BY NOW DECLARING THE STATUTE TO BE LIMITED AS
A WHOLE TO ACTS CONSTITUTING PART OF THE SMUGGLING PROCESS. 

FN9  THE BILLS PROPOSED BY THE COMMISSIONER GENERAL WOULD HAVE
CLEARLY PRESCRIBED THE SAME PENALTY FOR CONCEALING OR HARBORING AS FOR
LANDING OR BRINGING IN.  THE PENALTY PROVISION OF ONE DRAFT STATED THAT
THE PENALTY SHOULD APPLY "FOR EACH AND EVERY ALIEN SO LANDED OR BROUGHT
IN OR ATTEMPTED TO BE LANDED OR BROUGHT IN, OR SO CONCEALED OR
HARBORED, OR WITH RESPECT TO WHOM THERE HAS BEEN SUCH AN ATTEMPT TO
CONCEAL OR HARBOR, OR ASSISTING OR ABETTING ANOTHER TO CONCEAL OR
HARBOR."  SEE ANNUAL REPORT FOR 1909 OF THE COMMISSIONER GENERAL OF
IMMIGRATION, 168.  THE SIMPLE CLAUSE "FOR EACH AND EVERY ALIEN TO WHOM
THIS SECTION IS APPLICABLE" WAS SUBSTITUTED IN THE BILL PROPOSED IN THE
ANNUAL REPORT FOR 1910.  (P. 170.)  IN 1911 A BILL INCORPORATING MANY
OF THE COMMISSIONER GENERAL'S SUGGESTED AMENDMENTS TO THE ACT WAS
INTRODUCED, BUT THE PENALTY PROVISIONS OF SEC. 8 WERE NOT MADE
APPLICABLE TO CONCEALING OR HARBORING.  S. 3175, 62D CONG., 2D SESS.
THIS OMISSION WAS NOT CORRECTED IN THE SUBSEQUENT DRAFTS THAT
EVENTUALLY RESULTED IN THE 1917 STATUTE.  SEE H.R. 6060, 63D CONG., 2D
SESS.; H.R. 10384, 64TH CONG., 1ST SESS. 

FN10  IN HIS 1931 AND 1932 ANNUAL REPORTS THE COMMISSIONER GENERAL
SPECIFICALLY POINTED OUT THAT AN AMENDMENT TO SEC. 8 WAS NECESSARY
BECAUSE IT HAD BEEN INTERPRETED TO PROVIDE NO PENALTY FOR THE OFFENSE
OF CONCEALING AND HARBORING.  A BILL INTRODUCED IN THE HOUSE OF
REPRESENTATIVES IN 1934, BUT NOT ENACTED, INCLUDED AN AMENDMENT TO SEC.
8 TO MAKE THE PENALTY APPLY "FOR EACH AND EVERY ALIEN IN RESPECT TO
WHOM ANY OF THE FOREGOING OFFENSES HAVE OCCURRED."  H.R. 9366, 73D
CONG., 2D SESS.  AT THE HEARINGS ON THIS BILL, THE DEPUTY COMMISSIONER
EXPRESSLY POINTED OUT THAT THE AMENDMENT WAS DESIGNED "TO MAKE SURE
THAT THERE WILL BE NO QUESTION THAT WE CAN INFLICT THIS PENALTY FOR
CONCEALING A SMUGGLED ALIEN."  HEARINGS BEFORE THE HOUSE COMMITTEE ON
IMMIGRATION AND NATURALIZATION ON H.R. 9366, 73D CONG., 2D SESS. 22. 

IN 1940 THE GENERAL PROBLEM WAS AGAIN BEFORE CONGRESS WHEN IT WAS
MADE UNLAWFUL TO STOW AWAY IN ORDER TO FACILITATE ENTRY INTO THE UNITED
STATES OR TO AID OR ABET A STOWAWAY, 54 STAT. 306, AND AGAIN WHEN THE
ACT WAS AMENDED TO AUTHORIZE THE DEPORTATION OF ANY ALIEN WHO,
KNOWINGLY AND FOR GAIN, ENCOURAGED, INDUCED OR ASSISTED ANOTHER ALIEN
TO EFFECT AN UNLAWFUL ENTRY.  54 STAT. 671. 

FN11 THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT CONSTRUES THE
AUTHORIZE INCREASED PENALTIES WHERE MORE THAN ONE ALIEN IS CONCERNED,
AS IS THE CASE FOR THE OFFENSE OF LANDING OR BRINGING IN.  MEDEIROS V.
KEVILLE, 63 F.2D 187, SEE NOTE 14 INFRA.  IN THE SOUTHERN DISTRICT OF
CALIFORNIA IT HAS BEEN HELD BOTH THAT NO PENALTY IS PRESCRIBED FOR
CONCEALING OR HARBORING, UNITED STATES V. NIROKU KOMAI, 286 F. 450;
UNITED STATES V. KINZO ICHIKI, 43 F.2D 1007, AND THAT THE SAME PENALTY
IS PRESCRIBED FOR CONCEALING OR HARBORING AS FOR LANDING OR BRINGING
IN, UNITED STATES V. ROBERTS, UNREPORTED DECISION BY YANKWICH, J., ON
APRIL 29, 1946; UNITED STATES V. PIAMONTE, UNREPORTED DECISION BY
WEINBERGER, J., ON MAY 21, 1946. 

FN12  SEE HEARINGS BEFORE THE HOUSE COMMITTEE ON IMMIGRATION AND
NATURALIZATION ON H.R. 9366, 73D CONG., 2D SESS. 22. 

FN13  ILLUSTRATIVE IS THE STATEMENT, "WE SUBMIT, THEREFORE, THAT A
PROPER READING OF SECTION 8 IN THE LIGHT OF ITS LEGISLATIVE HISTORY CAN
LEAVE NO DOUBT OF CONGRESS' INTENTION THAT THE PENAL PROVISIONS SHOULD
APPLY TO THE OFFENSE OF CONCEALING OR HARBORING AN ALIEN NOT DULY
ADMITTED OR NOT LAWFULLY ENTITLED TO ENTER OR RESIDE WITHIN THE UNITED
STATES." 

FN14  THIS WAS THE VIEW TAKEN IN MEDEIROS V. KEVILLE, 63 F.2D 187, BY
THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT, WHICH APPEARS TO BE
THE ONLY APPELLATE DECISION ON THE MATTER.  THE GOVERNMENT SUCCESSFULLY
OPPOSED THE GRANTING OF CERTIORARI IN THAT CASE, ALTHOUGH CONSISTENTLY
WITH ITS PRESENT PREFERRED POSITION IT NOW ASSERTS THAT, CONTRARY TO
THE RULING, THE CONGRESSIONAL INTENT TO PUNISH CONCEALING AND HARBORING
PROPORTIONATELY TO THE NUMBER OF ALIENS INVOLVED IS "EQUALLY AS CLEAR
AS THE INTENT TO MAKE THOSE OFFENSES PUNISHABLE AT ALL." 

IN RESPONSE TO APPELLEE'S SUGGESTION OF INCONSISTENCY BETWEEN THAT
POSITION AND THE ONE NOW TAKEN, THE GOVERNMENT POINTS OUT THAT ITS
BRIEF IN OPPOSITION ALSO URGED THAT THE MEDEIROS DECISION WAS, IN ANY
EVENT, CORRECT ON OTHER GROUNDS. 

FN15  INDEED IT WAS IN EFFECT REINFORCED BY THE 1917 AMENDMENT.  FOR
THAT AMENDMENT NOT ONLY ADDED THE NEW OFFENSES BUT SUBSTANTIALLY
INCREASED THE MAXIMA OF THE AUTHORIZED FINE AND IMPRISONMENT.  CONGRESS
THUS GAVE SPECIFIC ATTENTION TO THE PENAL PROVISION IN ADDITION TO
EXPANDING THE CRIMINAL ACTS, AND IN THIS RESPECT FOLLOWED THE
COMMISSIONER GENERAL'S RECOMMENDATION.  YET IT DECLINED AT THE SAME
TIME TO ALTER THE "FOR EACH AND EVERY ALIEN" CLAUSE, WHICH HE ALSO
ASKED TO HAVE CHANGED. 
..END :








KING V. ORDER OF TRAVELERS, 333 U.S. 153 


NO. 171.  ARGUED DECEMBER 10-11, 1947.  - DECIDED MARCH 8, 1948.  - 161
F.2D 108, AFFIRMED. 


UNDER THE RULES OF DECISION ACT (SEC. 34 OF THE JUDICIARY ACT OF 1789,
R.S. SEC. 721, 28 U.S.C. SEC. 725), AS APPLIED IN ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, A FEDERAL COURT, IN A DIVERSITY OF CITIZENSHIP
CASE ARISING IN SOUTH CAROLINA AND TURNING ON A QUESTION OF STATE LAW
ON WHICH THERE HAS BEEN NO DECISION BY THE HIGHEST COURT OF THE STATE,
NEED NOT FOLLOW A DECISION ON THE QUESTION BY A SOUTH CAROLINA COUNTY
COURT OF COMMON PLEAS, WHOSE DECISIONS ARE NOT REPORTED AND, UNDER
STATE PRACTICE, ARE BINDING ONLY ON THE PARTIES TO THE PARTICULAR CASE
AND DO NOT CONSTITUTE PRECEDENTS IN ANY OTHER CASE IN THAT COURT OR IN
ANY OTHER COURT OF THE STATE.  PP. 153-162. 

KING V. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

IN A DIVERSITY OF CITIZENSHIP CASE, A FEDERAL DISTRICT COURT AWARDED
A JUDGMENT AGAINST AN INSURER TO THE BENEFICIARY OF A LIFE INSURANCE
POLICY.  65 F.SUPP.  740.  THE CIRCUIT COURT OF APPEALS REVERSED.  161
F.2D 108.  THIS COURT GRANTED CERTIORARI.  332 U.S. 754.  AFFIRMED, P.
162. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT TO OBTAIN PAYMENT OF THE PROCEEDS OF A $5,000
INSURANCE POLICY.  FEDERAL JURISDICTION IS FOUNDED ON DIVERSITY OF
CITIZENSHIP, AND, FOR PRESENT PURPOSES, SOUTH CAROLINA LAW IS
CONTROLLING.  FN1  WE GRANTED CERTIORARI N2 IN ORDER TO DETERMINE
WHETHER THE CIRCUIT COURT OF APPEALS' REFUSAL TO FOLLOW THE ONLY SOUTH
CAROLINA DECISION DIRECTLY IN POINT, THE DECISION OF A COURT OF COMMON
PLEAS, WAS CONSISTENT WITH THE RULES OF DECISION ACT  FN3 AS APPLIED IN
ERIE R. CO. V. TOMPKINS, 304 U.S. 64(1938), AND SUBSEQUENT CASES. 

THE PETITIONER, MRS. KING, IS THE BENEFICIARY OF THE POLICY; HER
HUSBAND, LIEUTENANT KING, WAS THE INSURED; AND THE RESPONDENT ORDER OF
UNITED COMMERCIAL TRAVELERS OF AMERICA IS THE INSURER.  THE POLICY
INSURED AGAINST KING'S ACCIDENTAL DEATH, BUT CONTAINED A CLAUSE
EXEMPTING THE RESPONDENT FROM LIABILITY FOR "DEATH RESULTING FROM
PARTICIPATION  ...  IN AVIATION."  IT IS THIS AVIATION EXCLUSION CLAUSE
WHICH GAVE RISE TO THE LITIGATION NOW BEFORE US. 

KING LOST HIS LIFE ONE DAY IN THE WINTER OF 1943 WHEN A LAND-BASED
CIVIL AIR PATROL PLANE IN WHICH HE WAS FLIGHT OBSERVER MADE AN
EMERGENCY LANDING THIRTY MILES OFF THE COAST OF NORTH CAROLINA.  THE
PLANE SANK, BUT KING WAS NOT SERIOUSLY HURT AND MANAGED TO GET OUT OF
THE PLANE AND DON HIS LIFE JACKET.  HE WAS STILL ALIVE TWO AND A HALF
HOURS LATER, WHEN AN ACCOMPANYING PLANE WAS FORCED TO LEAVE THE SCENE. 
WHEN PICKED UP ABOUT FOUR AND A HALF HOURS AFTER THE LANDING, HOWEVER,
HE WAS DEAD.  THE MEDICAL DIAGNOSIS WAS "DROWNING AS A RESULT OF
EXPOSURE IN THE WATER." 

THE RESPONDENT TOOK THE POSITION THAT DEATH, WHILE "ACCIDENTAL,"
RESULTED FROM "PARTICIPATION ...  IN AVIATION."  ACCORDINGLY, IT
REFUSED TO PAY MRS. KING THE PROCEEDS OF THE POLICY.  A RESIDENT OF
SOUTH CAROLINA, SHE THEN SUED THE RESPONDENT IN A COURT OF THAT STATE,
CONTENDING THAT DROWNING RATHER THAN THE AIRPLANE FLIGHT WAS THE CAUSE
OF DEATH WITHIN THE MEANING OF THE POLICY.  THE RESPONDENT, AN OHIO
CORPORATION, EXERCISED ITS STATUTORY RIGHT TO REMOVE THE CAUSE TO THE
FEDERAL DISTRICT COURT FOR THE WESTERN DISTRICT OF SOUTH CAROLINA. 
FN4 

THE PARTIES AGREED THAT SOUTH CAROLINA LAW WAS CONTROLLING, BUT UP TO
THE TIME OF THE DISTRICT COURT'S DECISION NEITHER OF THEM HAD LOCATED
ANY DECISION ON AVIATION EXCLUSION CLAUSES BY ANY SOUTH CAROLINA
COURT.  THE DISTRICT COURT THEREFORE FELL BACK ON WHAT IT DEEMED TO BE
GENERAL PRINCIPLES OF SOUTH CAROLINA INSURANCE LAW, AS ENUNCIATED BY
THE STATE SUPREME COURT:  THAT AMBIGUITIES IN AN INSURANCE CONTRACT ARE
TO BE RESOLVED IN FAVOR OF THE BENEFICIARY, AND THAT THE CAUSE OF
DEATH, WITHIN THE MEANING OF ACCIDENT INSURANCE POLICIES, IS THE
IMMEDIATE, NOT THE REMOTE CAUSE.  FN5  APPLYING THESE PRINCIPLES, THE
COURT HELD THAT KING'S DEATH RESULTED FROM DROWNING, NOT FROM
PARTICIPATION IN AVIATION, AND THAT MRS. KING WAS ENTITLED TO RECOVER. 
FN6 

TWO MONTHS LATER, A SOUTH CAROLINA COURT, THE COURT OF COMMON PLEAS
FOR SPARTANBURG COUNTY, LIKEWISE RULED IN FAVOR OF MRS. KING IN A SUIT
AGAINST A DIFFERENT INSURER ON A $2,500 POLICY WHICH CONTAINED AN
ALMOST IDENTICAL AVIATION EXCLUSION CLAUSE.  THE JUDGE FOLLOWED THE
SAME REASONING AS THE DISTRICT COURT HAD AND RELIED, AT LEAST IN PART,
ON THAT COURT'S DECISION.  UNDER SOUTH CAROLINA STATUTES THE INSURER IN
THIS SECOND CASE HAD THE RIGHT TO APPEAL TO THE STATE SUPREME COURT,
FN7  BUT DID NOT DO SO. 

ON APPEAL OF THE PRESENT CASE, THE CIRCUIT COURT OF APPEALS REVERSED
THE DISTRICT COURT'S JUDGMENT FOR MRS. KING.  FN8  THE COURT
ACKNOWLEDGED THAT UNDER SOUTH CAROLINA LAW AMBIGUITIES IN INSURANCE
POLICIES ARE TO BE CONSTRUED AGAINST THE INSURER, BUT IT FOUND NO
AMBIGUITY IN THE AVIATION EXCLUSION CLAUSE INSOFAR AS ITS APPLICATION
TO THE FACTS OF THIS CASE WAS CONCERNED.  ON THE CONTRARY, KING'S DEATH
WAS THOUGHT CLEARLY TO HAVE RESULTED FROM "PARTICIPATION  ...  IN
AVIATION."  NOTHING IN SOUTH CAROLINA SUPREME COURT DECISIONS, IT WAS
SAID, WAS INCONSISTENT WITH THIS VIEW, WHEREAS THAT COURT'S ACCEPTED
THEORIES OF PROXIMATE CAUSE IN TORT CASES SUPPORTED IT. FN9  UNDER
THESE CIRCUMSTANCES, THE CIRCUIT COURT OF APPEALS EXPRESSED ITS
DISBELIEF THAT THE SUPREME COURT OF SOUTH CAROLINA WOULD HAVE RULED FOR
MRS. KING, HAD HER CASE BEEN BEFORE IT, "IN THE FACE OF REASON AND THE
VERY CONSIDERABLE AUTHORITY" FROM OTHER JURISDICTIONS.  FN10  THE
COMMON PLEAS DECISION IN MRS. KING'S FAVOR, IT WAS THOUGHT, WAS NOT
BINDING ON THE CIRCUIT COURT OF APPEALS AS A FINAL EXPRESSION OF SOUTH
CAROLINA LAW SINCE IT WAS NOT BINDING ON OTHER SOUTH CAROLINA COURTS
AND SINCE THE COURT RENDERING IT HAD RELIED ON THE DISTRICT COURT'S
RULING IN THE PRESENT CASE. 

AFTER WE GRANTED CERTIORARI, A NEW FACTOR WAS INTERJECTED IN THE
CASE.  ANOTHER SOUTH CAROLINA COURT OF COMMON PLEAS, THE ONE FOR
GREENVILLE COUNTY, HANDED DOWN AN OPINION WHICH, SO FAR AS RELEVANT
HERE, EXPRESSLY REJECTED THE REASONING OF THE SPARTANBURG COURT OF
COMMON PLEAS AND ESPOUSED THAT OF THE CIRCUIT COURT OF APPEALS. 

WHAT EFFECT, IF ANY, WE SHOULD GIVE TO THIS SECOND COMMON PLEAS
DECISION BECOMES AN APPROPRIATE SUBJECT FOR INQUIRY ONLY IF IT IS FIRST
DETERMINED THAT THE CIRCUIT COURT OF APPEALS ERRED IN NOT FOLLOWING THE
SPARTANBURG DECISION, WHICH WAS THE ONLY ONE OUTSTANDING AT THE TIME OF
ITS ACTION.  FN11  WE THEREFORE ADDRESS OURSELVES FIRST TO THAT
QUESTION. 

THE RULES OF DECISION ACT  FN12  COMMANDS FEDERAL COURTS TO REGARD AS
"RULES OF DECISION" THE SUBSTANTIVE "LAWS" OF THE APPROPRIATE STATE,
EXCEPT ONLY WHERE THE CONSTITUTION, TREATIES, OR STATUTES OF THE UNITED
STATES PROVIDE OTHERWISE.  AND THE ERIE R. CO. CASE DECIDED THAT
"LAWS," IN THIS CONTEXT, INCLUDE NOT ONLY STATE STATUTES, BUT ALSO THE
UNWRITTEN LAW OF A STATE AS PRONOUNCED BY ITS COURTS. 

THE IDEAL AIMED AT BY THE ACT IS, OF COURSE, UNIFORMITY OF DECISION
WITHIN EACH STATE.  SO LONG AS IT DOES NOT IMPINGE ON FEDERAL
INTERESTS, A STATE MAY SHAPE ITS OWN LAW IN ANY DIRECTION IT SEES FIT,
AND IT IS INADMISSIBLE THAT CASES DEPENDENT ON THAT LAW SHOULD BE
DECIDED DIFFERENTLY ACCORDING TO WHETHER THEY ARE BEFORE FEDERAL OR
STATE COURTS.  THIS IS PARTICULARLY TRUE WHERE ACCIDENTAL FACTORS SUCH
AS DIVERSITY OF CITIZENSHIP AND THE AMOUNT IN CONTROVERSY ENABLE ONE OF
THE PARTIES TO CHOOSE WHETHER THE CASE IS TRIED IN A FEDERAL OR A STATE
COURT. 

EFFECTUATION OF THAT POLICY IS COMPARATIVELY EASY WHEN THE ISSUE
CONFRONTING A FEDERAL COURT HAS PREVIOUSLY BEEN DECIDED BY THE HIGHEST
COURT IN THE APPROPRIATE STATE; THE ERIE R. CO. CASE DECIDED THAT
DECISIONS AND OPINIONS OF THAT COURT ARE BINDING ON FEDERAL COURTS. 
THE ERIE R. CO. CASE LEFT OPEN, HOWEVER, THE MORE DIFFICULT QUESTION OF
THE EFFECT TO BE GIVEN TO DECISIONS BY LOWER STATE COURTS ON POINTS
NEVER PASSED ON BY THE HIGHEST STATE COURT. 

TWO YEARS LATER, A SERIES OF FOUR CASES PRESENTED SOME ASPECTS OF
THAT QUESTION.  IN THREE OF THE CASES THIS COURT HELD THAT FEDERAL
COURTS ARE BOUND BY DECISIONS OF A STATE'S INTERMEDIATE APPELLATE
COURTS UNLESS THERE IS PERSUASIVE EVIDENCE THAT THE HIGHEST STATE COURT
WOULD RULE OTHERWISE.  SIX COMPANIES V. HIGHWAY DISTRICT, 311 U.S.
180(1940); WEST V. AMERICAN T. & T. CO., 311 U.S. 223(1940); AND STONER
V. NEW YORK LIFE INS. CO., 311 U.S. 464(1940).  FN13  IN THE FOURTH
CASE, FIDELITY UNION TRUST CO. V. FIELD, 311 U.S. 169(1940), THE COURT
WENT FURTHER AND HELD THAT A FEDERAL COURT HAD TO FOLLOW TWO DECISIONS
ANNOUNCED FOUR YEARS EARLIER BY THE NEW JERSEY COURT OF CHANCERY, A
COURT OF ORIGINAL JURISDICTION. 

THE FIDELITY UNION TRUST CO. CASE DID NOT, HOWEVER, LAY DOWN ANY
GENERAL RULE AS TO THE RESPECT TO BE ACCORDED STATE TRIAL COURT
DECISIONS.  THIS COURT TOOK PAINS TO POINT OUT THAT THE STATUS OF THE
NEW JERSEY COURT OF CHANCERY WAS NOT THAT OF THE USUAL NISI PRIUS
COURT.  IT HAD STATE-WIDE JURISDICTION.  ITS STANDING ON THE EQUITY
SIDE WAS COMPARABLE TO THAT OF NEW JERSEY'S INTERMEDIATE APPELLATE
COURTS ON THE LAW SIDE.  A UNIFORM RULING BY THE COURT OF CHANCERY OVER
A COURSE OF YEARS WAS SELDOM SET ASIDE BY THE STATE'S HIGHEST COURT. 
AND CHANCERY DECREES WERE ORDINARILY TREATED AS BINDING IN LATER CASES
IN CHANCERY. 

THE PRESENT CASE INVOLVES NO ATTACK ON THE POLICY OF THE RULES OF
DECISION ACT, THE PRINCIPLE OF THE ERIE R. CO. CASE, OR THE SOUNDNESS
OF THE OTHER CASES REFERRED TO ABOVE.  IT INVOLVES THE PRACTICAL
ADMINISTRATION OF THE ACT; AND THE QUESTION IT RAISES IS WHETHER, IN
THE LONG RUN, IT WOULD PROMOTE UNIFORMITY IN THE APPLICATION OF SOUTH
CAROLINA LAW IF FEDERAL COURTS CONFRONTED WITH QUESTIONS UNDER THAT LAW
WERE OBLIGED TO FOLLOW THE RULING OF A COURT OF COMMON PLEAS. 

THE COURTS OF COMMON PLEAS MAKE UP SOUTH CAROLINA'S BASIC SYSTEM OF
TRIAL COURTS FOR CIVIL ACTIONS.  FN14  THERE ARE FOURTEEN JUDGES FOR
THESE COURTS, ONE FOR EACH OF THE JUDICIAL CIRCUITS INTO WHICH THE
STATE'S FORTY-SIX COUNTIES ARE GROUPED.  FN15  A CIRCUIT JUDGE HEARS
CIVIL CASES AT SPECIFIED TIMES IN EACH COUNTY COMPRISING THE CIRCUIT TO
WHICH HE IS THEN ASSIGNED, AND AT SUCH TIMES HIS COURT IS CALLED THE
COURT OF COMMON PLEAS FOR THAT PARTICULAR COUNTY.  FN16  IN ADDITION,
HE PRESIDES OVER A PARALLEL SET OF CRIMINAL COURTS, THE COURTS OF
GENERAL SESSIONS.  SOUTH CAROLINA HAS NO TIER OF INTERMEDIATE APPELLATE
COURTS, AND APPEAL FROM COMMON PLEAS DECISIONS IS DIRECTLY, AND AS A
MATTER OF RIGHT, TO THE STATE SUPREME COURT.  FN17 

WHILE THE COURTS OF COMMON PLEAS ARE DENOMINATED COURTS OF RECORD,
THEIR DECISIONS ARE NOT PUBLISHED OR DIGESTED IN ANY FORM WHATSOEVER. 
THEY ARE FILED ONLY IN THE COUNTIES IN WHICH THE CASES ARE TRIED, AND
EVEN THERE THE SOLE INDEX IS BY THE PARTIES' NAMES.  FN18  PERHAPS
BECAUSE THESE FACTS PRECLUDE READY AVAILABILITY TO BENCH AND BAR, THE
COMMON PLEAS DECISIONS SEEM TO BE ACCORDED LITTLE WEIGHT AS PRECEDENTS
IN SOUTH CAROLINA'S OWN COURTS.  IN THIS CONNECTION, RESPONDENT HAS
SUBMITTED A CERTIFICATE FROM THE CHIEF JUSTICE OF THE SUPREME COURT OF
SOUTH CAROLINA TO THE EFFECT THAT "UNDER THE PRACTICE IN THIS STATE AN
UNAPPEALED DECISION OF THE COURT OF COMMON PLEAS IS BINDING ONLY UPON
THE PARTIES WHO ARE BEFORE THE COURT IN THAT PARTICULAR CASE AND WOULD
NOT CONSTITUTE A PRECEDENT IN ANY OTHER CASE IN THAT COURT OR IN ANY
OTHER COURT IN THE STATE OF SOUTH CAROLINA." 

CONSIDERATION OF THESE FACTS LEADS US TO THE CONCLUSION THAT THE
CIRCUIT COURT OF APPEALS DID NOT COMMIT ERROR.  WHILE THAT COURT
PROPERLY ATTRIBUTED SOME WEIGHT TO THE SPARTANBURG COMMON PLEAS
DECISION, WE BELIEVE THAT IT WAS JUSTIFIED IN HOLDING THE DECISION NOT
CONTROLLING AND IN PROCEEDING TO MAKE ITS OWN DETERMINATION OF WHAT THE
SUPREME COURT OF SOUTH CAROLINA WOULD PROBABLY RULE IN A SIMILAR CASE. 

IN THE FIRST PLACE, A COURT OF COMMON PLEAS DOES NOT APPEAR TO HAVE
SUCH IMPORTANCE AND COMPETENCE WITHIN SOUTH CAROLINA'S OWN JUDICIAL
SYSTEM THAT ITS DECISIONS SHOULD BE TAKEN AS AUTHORITATIVE EXPOSITIONS
OF THAT STATE'S "LAW."  IN FUTURE CASES BETWEEN DIFFERENT PARTIES, AS
INDICATED ABOVE, A COMMON PLEAS DECISION DOES NOT EXACT CONFORMITY FROM
EITHER THE SAME COURT OR LESSER COURTS FN19  WITHIN ITS TERRITORIAL
JURISDICTION; AND IT MAY APPARENTLY BE IGNORED BY OTHER COURTS OF
COMMON PLEAS WITHOUT THE COMPUNCTIONS WHICH COURTS OFTEN EXPERIENCE IN
REACHING RESULTS DIVERGENT FROM THOSE REACHED BY ANOTHER COURT OF
COORDINATE JURISDICTION.  THUS A COMMON PLEAS DECISION DOES NOT, SO FAR
AS WE HAVE BEEN INFORMED, OF ITSELF EVIDENCE ONE OF THE "RULES OF
DECISION COMMONLY ACCEPTED AND ACTED UPON BY THE BAR AND INFERIOR
COURTS."  FN20  FURTHERMORE, AS WE HAVE BUT RECENTLY HAD OCCASION TO
REMARK, A FEDERAL COURT ADJUDICATING A MATTER OF STATE LAW IN A
DIVERSITY SUIT IS, "IN EFFECT, ONLY ANOTHER COURT OF THE STATE"; FN21
IT WOULD BE INCONGRUOUS INDEED TO HOLD THE FEDERAL COURT BOUND BY A
DECISION WHICH WOULD NOT BE BINDING ON ANY STATE COURT. 

SECONDLY, THE DIFFICULTY OF LOCATING COMMON PLEAS DECISIONS IS A
MATTER OF GREAT PRACTICAL SIGNIFICANCE.  LITIGANTS COULD FIND ALL THE
DECISIONS ON ANY GIVEN SUBJECT ONLY BY LABORIOUSLY SEARCHING THE
JUDGMENT ROLLS IN ALL OF SOUTH CAROLINA'S FORTY-SIX COUNTIES.  TO HOLD
THAT FEDERAL COURTS MUST ABIDE BY COMMON PLEAS DECISIONS MIGHT WELL PUT
A PREMIUM ON THE FINANCIAL ABILITY REQUIRED FOR EXHAUSTIVE SCREENING OF
THE JUDGMENT ROLLS OR FOR THE MAINTENANCE OF PRIVATE RECORDS.  IN CASES
WHERE THE PARTIES COULD NOT AFFORD SUCH PRACTICES, THE RESULT WOULD
OFTEN BE TO MAKE THEIR RIGHTS DEPENDENT ON CHANCE; FOR EVERY DECISION
CITED BY COUNSEL THERE MIGHT BE A DOZEN ADVERSE DECISIONS OUTSTANDING
BUT UNDISCOVERED.  FN22 

IN AFFIRMING THE DECISION BELOW, WE ARE DECIDING ONLY THAT THE
CIRCUIT COURT OF APPEALS DID NOT HAVE TO FOLLOW THE DECISION OF THE
COURT OF COMMON PLEAS FOR SPARTANBURG COUNTY.  WE DO NOT PURPORT TO
DETERMINE THE CORRECTNESS OF ITS RULING ON THE MERITS.  NOR IS OUR
DECISION TO BE TAKEN AS PROMULGATING A GENERAL RULE THAT FEDERAL COURTS
NEED NEVER ABIDE BY DETERMINATIONS OF STATE LAW BY STATE TRIAL COURTS. 
AS INDICATED BY THE FIDELITY UNION TRUST CO. CASE, OTHER SITUATIONS IN
OTHER STATES MAY WELL CALL FOR A DIFFERENT RESULT.    IT MAY ALSO BE
WELL TO ADD THAT, EVEN IF THE CIRCUIT COURT OF APPEALS HAD BEEN IN
ERROR AT THE TIME OF ITS DECISION, REVERSAL OF ITS JUDGMENT WOULD NOT
NECESSARILY BE APPROPRIATE PROPRIATE IN VIEW OF THE SECOND COMMON PLEAS
DECISION.  FN23  BUT WE PREFER TO REGARD THAT SECOND DECISION AS AN
ILLUSTRATION OF THE PERILS OF INTERPRETING A COMMON PLEAS DECISION AS A
DEFINITIVE EXPRESSION OF "SOUTH CAROLINA LAW," NOT AS A CONTROLLING
FACTOR IN OUR DECISION.  AFFIRMED. 

FN1  BOTH COURTS BELOW SO HELD, AND UNTIL THE CASE WAS BRIEFED FOR
THIS COURT, NEITHER PARTY TOOK ISSUE WITH THIS HOLDING OR RAISED ANY
FULL FAITH AND CREDIT QUESTION.  HENCE IT IS UNNECESSARY FOR US TO
CONSIDER WHETHER OR NOT UNITED COMMERCIAL TRAVELERS OF AMERICA V.
WOLFE, 331 U.S. 586(1947), IS APPLICABLE. 

FN2  332 U.S. 754. 

FN3  JUDICIARY ACT OF 1789, SEC. 34, R.S. SEC. 721, 28 U.S.C. SEC.
725. 

FN4  28 U.S.C. SEC. 71. 

FN5  FOR THIS PROPOSITION THE COURT CITED GOETHE V. NEW YORK LIFE
INS. CO., 183 S.C. 199, 190 S.E. 451(1937).  IN THAT CASE THEINSURED
DIED FOLLOWING VIGOROUS EFFORTS TO PUT OUT A FIRE.  THERE WAS DISPUTED
MEDICAL EVIDENCE AS TO WHETHER THE SYMPTOMS SHOWN JUST BEFORE DEATH
INDICATED HEATSTROKE OR HEART DISEASE AS THE CAUSE OF DEATH.  THERE WAS
NO EVIDENCE THAT THE INSURED SUFFERED FROM HEART DISEASE BEFORE THAT
TIME.  THE SUPREME COURT OF SOUTH CAROLINA UPHELD A JURY DETERMINATION
THAT HEATSTROKE CAUSED DEATH, AND THEN, ON THE MOST DISPUTED POINT IN
THE CASE, RULED THAT HEATSTROKE WAS A "BODILY INJURY" WITHIN THE
MEANING OF AN ACCIDENT INSURANCE POLICY.  IT SEEMS TO US, AS IT
APPARENTLY DID TO THE CIRCUIT COURT OF APPEALS, QUESTIONABLE WHETHER
THIS CASE SUPPORTS THE PRINCIPLE FOR WHICH IT WAS CITED. 

FN6  65 F.SUPP.  740(1946). 

FN7  1 S.C. CODE ANN. SECS. 26 AND 780. 

FN8  161 F.2D 108(1947). 

FN9  THE COURT CITED HORNE V. ATLANTIC COAST LINE R. CO., 177 S.C.
461, 181 S.E. 642(1935). 

FN10  AMONG THE CASES CITED WERE NEEL V. MUTUAL LIFE INS. CO. OF NEW
YORK, 131 F.2D 159(C.C.A. 2, 1942), AND GREEN V. MUTUAL BENEFIT LIFE
INS. CO., 144 F.2D 55(C.C.A. 1, 1944). 

FN11  ALTHOUGH THE DECISION BY THE SPARTANBURG COURT OF COMMON PLEAS
WAS RENDERED AFTER THE DISTRICT COURT DECISION, IT WAS PROPER FOR THE
CIRCUIT COURT OF APPEALS TO CONSIDER IT.  SEE VANDENBARK V. OWENS
ILLINOIS CO., 311 U.S. 538(1941). 

FN12  SEE NOTE 3, SUPRA. 

FN13  IN ALL THREE CASES THE STATE SUPREME COURT HAD REFUSED TO
REVIEW THE INTERMEDIATE APPELLATE COURT DECISION; IN THE WEST AND
STONER CASES, THE INTERMEDIATE APPELLATE COURT'S DECISION HAD INVOLVED
THE SAME PARTIES ENGAGED IN THE SUBSEQUENT CASE BEFORE THE FEDERAL
COURTS; AND IN THE SIX COMPANIES CASE, THE INTERMEDIATE APPELLATE
COURT'S DECISION HAD REMAINED ON THE BOOKS FOR OVER TWENTY YEARS
WITHOUT DISAPPROVAL.  THESE FACTORS WERE MENTIONED IN OUR OPINIONS, BUT
WERE NOT NECESSARILY DETERMINATIVE.  SEE FIDELITY UNION TRUST CO. V.
FIELD, 311 U.S. 169, 178(1940). 

FN14  S.C. CONST., ART. 5, SEC. 15.  THESE COURTS ALSO HAVE LIMITED
APPELLATE JURISDICTION, VARYING SOMEWHAT FROM COUNTY TO COUNTY.  THE
COURT OF COMMON PLEAS FOR SPARTANBURG COUNTY HANDLES APPEALS FROM THE
COUNTY'S PROBATE COURT, 1 S.C. CODE ANN. SEC. 228, ITS COURT OF
DOMESTIC RELATIONS, 1 ID. SECS. 256-24 AND 256-44, AND ITS MAGISTRATES
COURTS.  THE LATTER HAVE CIVIL JURISDICTION CONCURRENT WITH THE COURTS
OF COMMON PLEAS ONLY IN SUITS INVOLVING LESS THAN $100, 1 ID. SEC.
257. 

THE COUNTY COURT FOR SPARTANBURG COUNTY HAS CONCURRENT JURISDICTION
IN CIVIL SUITS INVOLVING LESS THAN $3,000, BUT APPEAL FROM ITS
DECISIONS IS DIRECTLY TO THE SUPREME COURT OF SOUTH CAROLINA, 1 ID.
SECS. 184 AND 190. 

FN15  S.C. CONST., ART. 5, SEC. 13; 1 S.C. CODE ANN. SEC. 50.  THERE
IS PROVISION FOR PERIODIC INTERCHANGE OF JUDGES AMONG THE CIRCUITS.  1
S.C. CODE ANN. SEC. 22. 

FN16  S.C. CONST., ART. 5, SEC. 16; 1 S.C. CODE ANN. SECS. 51-64. 

FN17  SEE NOTE 7 SUPRA. 

FN18  S.C. CIRCUIT COURT RULE 39.  THERE IS A CLERK OF THE COURT OF
COMMON PLEAS FOR EACH COUNTY.  S.C. CONST., ART. 5, SEC. 27. 

FN19  I.E., COUNTY COURTS, MAGISTRATES COURTS, PROBATE COURTS, AND
COURTS OF DOMESTIC RELATIONS.  SEE NOTE 14 SUPRA. 

FN20  WEST V. AMERICAN T. & T. CO., 311 U.S. 223, 236(1940). 

FN21  GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 108(1945). 

FN22  IN THE PRESENT CASE, THE SPARTANBURG DECISION CAME TO LIGHT
BECAUSE PETITIONER HAD BEEN A PARTY TO IT, THE GREENVILLE DECISION
BECAUSE RESPONDENT'S COUNSEL HAD BEEN A PARTY TO IT. 

FN23  SEE VANDENBARK V. OWENS-ILLINOIS CO., 311 U.S. 538(1941). 
..END :











SUTTLE V. REICH BROS. CO., 333 U.S. 163 


NO. 214.  ARGUED DECEMBER 18, 1947.  - DECIDED MARCH 8, 1948.  - 161
F.2D 289, AFFIRMED. 


A RESIDENT AND CITIZEN OF MISSISSIPPI BROUGHT AN ACTION BASED ON
DIVERSITY OF CITIZENSHIP IN THE FEDERAL DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA AGAINST A PARTNERSHIP AND ITS INDIVIDUAL MEMBERS
WHO WERE RESIDENTS OF THE WESTERN DISTRICT OF LOUISIANA AND A TEXAS
CORPORATION WHICH HAD QUALIFIED TO DO BUSINESS IN LOUISIANA AND MADE
ITSELF AMENABLE TO SUIT IN THE FEDERAL COURTS FOR EITHER THE EASTERN OR
WESTERN DISTRICT OF THAT STATE.  HELD:  THE VENUE WAS IMPROPER AS TO
THE PARTNERSHIP AND ITS INDIVIDUAL MEMBERS AND THE SUIT WAS PROPERLY
DISMISSED AS TO THEM, SINCE NONE OF THE PARTIES WAS A RESIDENT OF THE
EASTERN DISTRICT OF LOUISIANA WITHIN THE MEANING OF SECS. 51 AND 52 OF
THE JUDICIAL CODE.  PP. 164-169. 

(A)  THE "RESIDENCE" OF A CORPORATION, WITHIN THE MEANING OF THE
VENUE STATUTES, IS ONLY IN THE STATE AND DISTRICT IN WHICH IT WAS
INCORPORATED.  PP. 166-168. 

(B)  WHILE, CONCEDEDLY, THE TEXAS CORPORATION HAD MADE ITSELF
AMENABLE TO SUIT IN THE FEDERAL COURTS OF EITHER DISTRICT IN LOUISIANA
BY QUALIFYING TO DO BUSINESS IN THAT STATE, SUCH ACTION ON THE PART OF
THE CORPORATION DID NOT CONSTITUTE A WAIVER BY THE PARTNERSHIP AND ITS
INDIVIDUAL MEMBERS OF THE PRIVILEGES CONFERRED UPON THEM BY THE VENUE
STATUTES.  P. 168. 

SUTTLE, ADMINISTRATRIX, V. REICH BROS. CONSTRUCTION CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

THE DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA DISMISSED AS
TO RESPONDENTS (RESIDENTS OF THE WESTERN DISTRICT), ON THE GROUND OF
IMPROPER VENUE, A SUIT BROUGHT AGAINST THEM AND A FOREIGN CORPORATION
BY A RESIDENT OF MISSISSIPPI.  THE CIRCUIT COURT OF APPEALS AFFIRMED. 
161 F.2D 289.  THIS COURT GRANTED CERTIORARI.  332 U.S. 755.  AFFIRMED,
P. 169. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO CONSIDER A QUESTION ARISING
UNDER THE FEDERAL VENUE STATUTES.  PETITIONER, A RESIDENT AND CITIZEN
OF THE STATE OF MISSISSIPPI, BROUGHT A NEGLIGENCE ACTION BASED ON
DIVERSITY OF CITIZENSHIP IN THE DISTRICT COURT FOR THE EASTERN DISTRICT
OF LOUISIANA.  THE DEFENDANTS IN THAT SUIT WERE THE RESPONDENTS REICH
BROS. CONSTRUCTION COMPANY, A PARTNERSHIP, AND ITS INDIVIDUAL MEMBERS,
RESIDENTS OF THE WESTERN DISTRICT OF LOUISIANA, AND HIGHWAY INSURANCE
UNDERWRITERS, A TEXAS CORPORATION WHICH HAD QUALIFIED TO DO BUSINESS IN
LOUISIANA PURSUANT TO A STATUTE OF THAT STATE. 

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." 
FN1  THIS GENERAL PROVISION IS QUALIFIED BY SEC. 52 OF THE JUDICIAL
CODE, WHICH STATES THAT "  ...  IF THERE ARE TWO OR MORE DEFENDANTS,
RESIDING IN DIFFERENT DISTRICTS OF THE STATE,  ...  (SUIT) MAY BE
BROUGHT IN EITHER DISTRICT,  ...  "  FN2 

IT IS CONCEDED BY THE PARTIES THAT THE TEXAS CORPORATION, HIGHWAY
INSURANCE, HAVING QUALIFIED TO DO BUSINESS IN LOUISIANA IS AMENABLE TO
SUIT IN THE FEDERAL COURTS FOR EITHER THE EASTERN OR WESTERN DISTRICT
OF THAT STATE.  FN3  THE CRITICAL ISSUE OF THE CASE IS WHETHER HIGHWAY
INSURANCE MAY BE REGARDED AS A "RESIDENT" OF THE EASTERN DISTRICT OF
LOUISIANA WITHIN THE MEANING OF SEC. 52 OF THE JUDICIAL CODE, SO THAT
RESPONDENTS REICH BROS. CONSTRUCTION COMPANY AND ITS INDIVIDUAL MEMBERS
MAY PROPERLY BE SUED AS CO-DEFENDANTS OF THE CORPORATION IN THE EASTERN
DISTRICT OF LOUISIANA, DESPITE THE FACT THAT RESPONDENTS ARE RESIDENTS
OF THE WESTERN DISTRICT OF THAT STATE. 

THE RESPONDENTS MOVED TO DISMISS THE ACTION ON THE GROUND OF IMPROPER
VENUE.  THE DISTRICT COURT GRANTED THE MOTION, AND THE SUIT WAS
DISMISSED AS TO RESPONDENTS, LEAVING THE ACTION PENDING AGAINST THE
CORPORATION.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  FN4 

THE ISSUE WE ARE CALLED UPON TO RESOLVE IS A NARROW ONE.  WE ARE NOT
CONFRONTED WITH THE ABSTRACT QUESTION WHETHER, UNDER ANY CIRCUMSTANCES
OR FOR ANY PURPOSES, A FOREIGN CORPORATION MAY PROPERLY BE REGARDED AS
ACQUIRING "RESIDENCE" IN A STATE OTHER THAN THAT IN WHICH IT WAS
INCORPORATED.  NOR IS OUR PROBLEM THAT OF DISCOVERING WHETHER, UNDER
STATE LAW, A QUALIFIED FOREIGN CORPORATION IS TREATED AS A "RESIDENT"
OF THE STATE IN WHICH IT IS DOING BUSINESS.  FN5 THE SOLE ISSUE OF THIS
CASE RELATES TO THE CONSTRUCTION OF THE TERM "RESIDENCE," APPEARING IN
THE PARTICULAR FEDERAL VENUE STATUTES UNDER CONSIDERATION, AS IT
APPLIES TO A FOREIGN CORPORATION. 

THE "RESIDENCE" OF A CORPORATION, WITHIN THE MEANING OF THESE
STATUTES HAS FREQUENTLY BEEN THE SUBJECT OF CONSIDERATION BY THIS COURT
FOR A PERIOD OF OVER HALF A CENTURY.  SHORTLY AFTER CONGRESS HAD
ENACTED SEC. 51 OF THE JUDICIAL CODE IN SUBSTANTIALLY ITS PRESENT FORM,
THIS COURT DECLARED THAT THE "RESIDENCE" OF A CORPORATION, WITHIN THE
MEANING OF THE VENUE STATUTES, IS ONLY IN "THE STATE AND DISTRICT IN
WHICH IT HAS BEEN INCORPORATED."  FN6  THUS, IN SHAW V. QUINCY MINING
CO., 145 U.S. 444, 450(1892), IT WAS SAID:  "THIS STATEMENT HAS BEEN
OFTEN REAFFIRMED BY THIS COURT, WITH SOME CHANGE OF PHRASE, BUT ALWAYS
RETAINING THE IDEA THAT THE LEGAL EXISTENCE, THE HOME, THE DOMICIL, THE
HABITAT, THE RESIDENCE, THE CITIZENSHIP OF THE CORPORATION CAN ONLY BE
IN THE STATE BY WHICH IT WAS CREATED, ALTHOUGH IT MAY DO BUSINESS IN
OTHER STATES WHOSE LAWS PERMIT IT." 

FOR ALMOST SIXTY YEARS, IN AN UNBROKEN LINE OF DECISIONS, THIS COURT
HAS APPLIED THE SAME CONSTRUCTION.  FN7  THAT VIEW WAS REAFFIRMED AS
RECENTLY AS 1946 IN THE OPINION OF THE COURT IN MISSISSIPPI PUBLISHING
CORP. V. MURPHREE, 326 U.S. 438, 441.  FN8 

CONGRESS HAS REVEALED A SIMILAR UNDERSTANDING OF THE TERM "RESIDENCE"
WHEN ENACTING SPECIAL VENUE STATUTES IN SITUATIONS IN WHICH IT WAS
INTENDED THAT, AT THE ELECTION OF THE PLAINTIFF, A CORPORATION SHOULD
BECOME AMENABLE TO SUIT EITHER IN THE STATE OF INCORPORATION OR IN
STATES IN WHICH IT IS CARRYING ON CORPORATE ACTIVITIES.  IN THOSE
STATUTES, CONGRESS HAS PROVIDED THAT THE VENUE OF SUCH SUITS SHOULD BE
LOCATED NOT ONLY IN THE DISTRICT IN WHICH THE CORPORATION IS A
"RESIDENT" OR AN "INHABITANT," BUT ALSO IN DISTRICTS IN WHICH IT MAY BE
"FOUND," "TRANSACTS BUSINESS," OR HAS AN AGENT TO RECEIVE SERVICE OF
PROCESS.  FN9 

NOR DOES THE DECISION OF THIS COURT IN NEIRBO CO. V. BETHLEHEM
SHIPBUILDING CORP., 308 U.S. 165(1939), REQUIRE THAT THE TERM
"RESIDENCE" BE CONSTRUED DIFFERENTLY.  IN THAT CASE, THE PLAINTIFFS,
CITIZENS AND RESIDENTS OF NEW JERSEY, BROUGHT SUIT BASED ON DIVERSITY
OF CITIZENSHIP AGAINST THE DEFENDANT, A DELAWARE CORPORATION, IN THE
SOUTHERN DISTRICT OF NEW YORK.  THIS COURT HELD THAT THE VENUE
REQUIREMENTS IN THE FEDERAL COURTS MAY BE WAIVED AND THAT THE
DEFENDANT, SINCE IT HAD APPOINTED AN AGENT TO RECEIVE SERVICE OF
PROCESS IN NEW YORK PURSUANT TO A STATUTE OF THAT STATE, MIGHT NOT
INSIST UPON SUIT BEING BROUGHT IN DELAWARE, THE STATE OF ITS
INCORPORATION, OR IN NEW JERSEY, THE STATE IN WHICH PLAINTIFFS
RESIDED.  BUT THIS COURT DID NOT HOLD THAT IN LOSING THE PRIVILEGE OF
INSISTING UPON SUIT IN DISTRICTS SPECIFIED IN SEC. 51 OF THE JUDICIAL
CODE, THE DEFENDANT CORPORATION THEREBY ACQUIRED "RESIDENCE" IN NEW
YORK, WITHIN THE MEANING OF THE VENUE STATUTES.  INDEED, THE COURT
SPECIFICALLY STATED THAT THE SUIT "WAS NOT BROUGHT 'IN THE DISTRICT OF
THE RESIDENCE OF EITHER THE PLAINTIFF OR THE DEFENDANT.'"  FN10 

FOR THE REASONS STATED, WE HOLD THAT THE HIGHWAY INSURANCE
UNDERWRITERS, A TEXAS CORPORATION AND RESPONDENTS' CO-DEFENDANT, IS NOT
A RESIDENT OF THE EASTERN DISTRICT OF LOUISIANA IN WHICH SUIT WAS
BROUGHT, WITHIN THE MEANING OF SEC. 52 OF THE JUDICIAL CODE.  WHILE,
CONCEDEDLY, THE TEXAS CORPORATION HAS MADE ITSELF AMENABLE TO SUIT IN
THE FEDERAL COURTS OF EITHER DISTRICT IN LOUISIANA BY QUALIFYING TO DO
BUSINESS IN THAT STATE, SUCH ACTION ON THE PART OF THE CORPORATION MAY
IN NO WAY BE REGARDED AS A WAIVER BY RESPONDENTS OF THE PRIVILEGES
CONFERRED UPON THEM BY THE VENUE STATUTES.  SECTION 51 IN GENERAL TERMS
PROVIDES THAT A DIVERSITY SUIT OF THE SORT INVOLVED HERE MUST BE
BROUGHT EITHER IN THE DISTRICT IN WHICH THE PLAINTIFF RESIDES OR IN
WHICH THE DEFENDANT RESIDES.  THIS SUIT, BROUGHT IN THE EASTERN
DISTRICT OF LOUISIANA, SATISFIES NEITHER REQUIREMENT.  RESPONDENTS'
PRIVILEGE CONFERRED BY SEC. 51 CAN BE DEFEATED EITHER BY WAIVER ON THE
PART OF RESPONDENTS OR, AS PROVIDED IN SEC. 52, BY PETITIONER BRINGING
SUIT AGAINST RESPONDENTS AND OTHERS IN A DISTRICT IN LOUISIANA IN WHICH
ONE OF THE CO-DEFENDANTS HAS ACQUIRED RESIDENCE BUT IN WHICH
RESPONDENTS DO NOT RESIDE.  NEITHER CIRCUMSTANCE IS PRESENT HERE. 
RESPONDENTS MADE TIMELY ASSERTION OF THEIR PRIVILEGE AND MAY NOT BE
DEEMED TO HAVE WAIVED THEIR VENUE OBJECTIONS.  AS WE HAVE HELD, THEIR
CO-DEFENDANT, HIGHWAY INSURANCE UNDERWRITERS, MAY NOT BE REGARDED AS A
RESIDENT OF THE EASTERN DISTRICT OF LOUISIANA IN WHICH SUIT WAS
BROUGHT.  IT FOLLOWS, THEREFORE, THAT RESPONDENTS' OBJECTIONS TO VENUE
WERE WELL TAKEN, AND THAT, IN SUSTAINING THOSE OBJECTIONS, THE DISTRICT
COURT AND THE CIRCUIT COURT OF APPEALS REACHED A RESULT IN ACCORD WITH
THE REQUIREMENTS OF THE FEDERAL VENUE STATUTES AS CONSISTENTLY
CONSTRUED BY THIS COURT.  IF THOSE REQUIREMENTS ARE TO BE ALTERED, IT
IS A TASK WHICH MUST BE UNDERTAKEN BY CONGRESS.  AFFIRMED. 

FN1  ACT OF MARCH 3, 1887, 24 STAT. 552, AS CORRECTED BY ACT OF
AUGUST 13, 1888, 25 STAT. 433, 28 U.S.C. SEC. 112. 

FN2  R.S. SEC. 740, 36 STAT. 1101, 28 U.S.C. SEC. 113.  THE SECTION
IN ITS ENTIRETY FOLLOWS: "WHEN A STATE CONTAINS MORE THAN ONE DISTRICT,
EVERY SUIT NOT OF A LOCAL NATURE, IN THE DISTRICT COURT THEREOF,
AGAINST A SINGLE DEFENDANT, INHABITANT OF SUCH STATE, MUST BE BROUGHT
IN THE DISTRICT WHERE HE RESIDES; BUT IF THERE ARE TWO OR MORE
DEFENDANTS, RESIDING IN DIFFERENT DISTRICTS OF THE STATE, IT MAY BE
BROUGHT IN EITHER DISTRICT, AND A DUPLICATE WRIT MAY BE ISSUED AGAINST
THE DEFENDANTS, DIRECTED TO THE MARSHAL OF ANY OTHER DISTRICT IN WHICH
ANY DEFENDANT RESIDES.  THE CLERK ISSUING THE DUPLICATE WRIT SHALL
ENDORSE THEREON THAT IT IS A TRUE COPY OF A WRIT SUED OUT OF THE COURT
OF THE PROPER DISTRICT; AND SUCH ORIGINAL AND DUPLICATE WRITS, WHEN
EXECUTED AND RETURNED INTO THE OFFICE FROM WHICH THEY ISSUE, SHALL
CONSTITUTE AND BE PROCEEDED ON AS ONE SUIT; AND UPON ANY JUDGMENT OR
DECREE RENDERED THEREIN, EXECUTION MAY BE ISSUED, DIRECTED TO THE
MARSHAL OF ANY DISTRICT IN THE SAME STATE." 

FN3  SEE NEIRBO CO. V. BETHLEHEM SHIPBUILDING CORP., 308 U.S.
165(1939); OKLAHOMA PACKING CO. V. OKLAHOMA GAS & ELECTRIC CO., 309
U.S. 4(1940). 

FN4  161 F.2D 289(1947). 

FN5  SEE MISSISSIPPI PUBLISHING CORP. V. MURPHREE, 326 U.S. 438, 443
444(1946); NEIRBO CO. V. BETHLEHEM SHIPBUILDING CORP., 308 U.S. 165,
175(1939); EX PARTE SCHOLLENBERGER, 96 U.S. 369, 377(1878). 

FN6  SHAW V. QUINCY MINING CO., 145 U.S. 444, 449(1892). 

FN7  SOUTHERN PACIFIC CO. V. DENTON, 146 U.S. 202, 205(1892); IN RE
KEASBEY AND MATTISON CO., 160 U.S. 221, 229(1895); MACON GROCERY CO. V.
ATLANTIC COAST LINE R. CO., 215 U.S. 501, 509(1910); LADEW V. TENNESSEE
COPPER CO., 218 U.S. 357, 367(1910); MALE V. ATCHISON, TOPEKA & SANTA
FE R. CO., 240 U.S. 97, 102(1916); GENERAL INVESTMENT CO. V. LAKE SHORE
& MICHIGAN SOUTHERN R. CO., 260 U.S. 261, 274-279(1922); SEABOARD RICE
MILLING CO. V. CHICAGO, ROCK ISLAND & PACIFIC R. CO., 270 U.S. 363,
366(1926); LUCKETT V. DELPARK, INC., 270 U.S. 496, 499(1926); BURNRITE
COAL BRIQUETTE CO. V. RIGGS, 274 U.S. 208, 211(1927).  AND SEE IN RE
HOHORST, 150 U.S. 653, 662(1893); GALVESTON, HARRISBURG AND SAN ANTONIO
R. CO. V. GONZALES, 151 U.S. 496, 503-504, 506(1894). 

FN8  SECTION 52 OF THE JUDICIAL CODE QUALIFIES OR PROVIDES AN
EXCEPTION TO THE GENERAL PROVISIONS OF SEC. 51.  THERE WOULD BE NO
BASIS FOR THE SUGGESTION THAT CONGRESS INTENDED TO ATTRIBUTE A MEANING
TO THE TERM "RESIDENCE" IN SEC. 51 DIFFERENT FROM THAT IN SEC. 52. 

FN9  SEE, E.G., SEC. 12 OF THE CLAYTON ACT, 38 STAT. 736, 15 U.S.C.
SEC. 22:  "ANY SUIT, ACTION, OR PROCEEDING UNDER THE ANTITRUST LAWS
AGAINST A CORPORATION MAY BE BROUGHT NOT ONLY IN THE JUDICIAL DISTRICT
WHEREOF IT IS AN INHABITANT, BUT ALSO IN ANY DISTRICT WHEREIN IT MAY BE
FOUND OR TRANSACTS BUSINESS; AND ALL PROCESS IN SUCH CASES MAY BE
SERVED IN THE DISTRICT OF WHICH IT IS AN INHABITANT, OR WHEREVER IT MAY
BE FOUND."  SEE ALSO SEC. 48 OF THE JUDICIAL CODE, 29 STAT. 695, 28
U.S.C. SEC. 109; SEC. 4 OF THE CLAYTON ACT, 38 STAT. 731, 15 U.S.C.
SEC. 15; 36 STAT. 291, 45 U.S.C. SEC. 56. 

FN10  NEIRBO CO. V. BETHLEHEM SHIPBUILDING CORP., 308 U.S. 165,
167(1939). 
..END :



UNITED STATES V. B. & O.R. CO., 333 U.S. 169 


NO. 223.  ARGUED FEBRUARY 3-4, 1948.  - DECIDED MARCH 8, 1948.  - 71
F.SUPP.  499, REVERSED. 


1.  THE INTERSTATE COMMERCE COMMISSION HAS POWER UNDER THE INTERSTATE
COMMERCE ACT TO ORDER A RAILROAD TO MAKE DELIVERIES OF INTERSTATE
CARLOAD SHIPMENTS OF LIVESTOCK WITHOUT DISCRIMINATION TO A SHIPPER ON
THE SHIPPER'S PRIVATE SIDETRACK, EVEN THOUGH COMPLIANCE WITH THAT ORDER
WILL REQUIRE THE RAILROAD TO USE AN INTERMEDIATE SEGMENT OF TRACK
MAINTAINED AND OPERATED BY THE RAILROAD BUT OWNED BY AND LEASED FROM A
COMPETING SHIPPER WHOSE LEASE TO THE RAILROAD PRECLUDES USE OF SUCH
TRACK FOR THE PURPOSE OF MAKING SUCH DELIVERIES TO ITS COMPETITORS. 
PP. 175-178. 

(A)  THE DEFINITIONS CONTAINED IN SECS. 1(1)(A) AND 1(3)(A) OF THE
INTERSTATE COMMERCE ACT MAKE ALL TRACKAGE "IN USE BY ANY COMMON
CARRIER" SUBJECT TO THE REGULATORY PROVISIONS OF THE ACT, EVEN THOUGH
NOT OWNED BY THE CARRIER BUT ONLY USED BY IT UNDER A LEASE.  P. 176. 

(B)  THE COMMAND OF CONGRESS AGAINST DISCRIMINATION CANNOT BE
SUBORDINATED TO THE COMMAND OF A TRACK OWNER THAT A RAILROAD USING THE
TRACK PRACTICE DISCRIMINATION.  P. 177. 

2.  IT DOES NOT DEPRIVE AN OWNER OF HIS PROPERTY WITHOUT DUE PROCESS
OF LAW TO DENY HIM THE RIGHT TO ENFORCE CONDITIONS UPON ITS USE WHICH
CONFLICT WITH THE POWER OF CONGRESS TO REGULATE RAILROADS SO AS TO
SECURE EQUALITY OF TREATMENT OF SHIPPERS.  P. 177. 

3.  UNDER SEC. 2 OF THE ELKINS ACT, THE COMMISSION WAS JUSTIFIED IN
INCLUDING, IN AN ORDER AGAINST CERTAIN RAILROADS TO CEASE
DISCRIMINATORY PRACTICES, A NON-CARRIER OWNER OF A SEGMENT OF TRACK WHO
REQUIRED SUCH DISCRIMINATORY PRACTICES PURSUANT TO THE CONTRACT LEASING
SUCH TRACK TO ONE OF THE RAILROADS.  P. 171, N. 2. 

UNITED STATES ET AL. V. BALTIMORE & OHIO RAILROAD CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF OHIO. 

THE INTERSTATE COMMERCE COMMISSION ISSUED A CEASE AND DESIST ORDER
REQUIRING CERTAIN INTERSTATE RAILROADS AND THE OWNER OF A SEGMENT OF
RAILROAD TRACK LEASED TO ONE OF THE RAILROADS TO DESIST FROM CERTAIN
DISCRIMINATORY PRACTICES IN CONNECTION WITH INTERSTATE SHIPMENTS.  266
I.C.C. 55.  A FEDERAL DISTRICT COURT ENJOINED ENFORCEMENT OF THE
ORDER.  71 F.SUPP.  499.  ON APPEAL TO THIS COURT, REVERSED, P. 178. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS PROPERLY HERE ON APPEAL, 28 U.S.C. SEC. 345, FROM A
DISTRICT COURT DECREE ENJOINING ENFORCEMENT OF A CEASE AND DESIST ORDER
OF THE INTERSTATE COMMERCE COMMISSION.  71 F.SUPP.  499.  THE ORDER
ENJOINED REQUIRED THE FIVE RAILROAD APPELLEES FN1  TO ABSTAIN FROM
REFUSING TO DELIVER INTERSTATE SHIPMENTS OF LIVESTOCK TO THE SIDETRACK
OF SWIFT & COMPANY'S PACKING PLANT AT CLEVELAND, OHIO, AND TO ESTABLISH
TARIFFS FOR SUCH DELIVERIES.  SWIFT'S SIDETRACK HAS ONLY ONE CONNECTION
WITH A RAILROAD.  THAT CONNECTION IS WITH THE MAIN LINE OF THE NEW YORK
CENTRAL BY WAY OF A SPUR TRACK, KNOWN AS "SPUR NO. 245," OPERATED BY
THAT RAILROAD.  ONE END OF THIS SPUR OWNED BY THE NEW YORK CENTRAL
CONNECTS WITH ITS MAIN LINE; THE OTHER END OF THE SPUR, ALSO OWNED BY
THE RAILROAD, CONNECTS WITH SWIFT'S SIDETRACK AND WITH OTHER PRIVATE
SIDETRACKS.  A 1619-FOOT MIDDLE SEGMENT OF THE SPUR, KNOWN AS "TRACK
1619," IS OWNED BY THE CLEVELAND UNION STOCK YARDS COMPANY.  UNDER THE
TERMS OF A TRACKAGE AGREEMENT WITH STOCK YARDS, NEW YORK CENTRAL USES
TRACK 1619 FOR DELIVERIES TO SWIFT'S SIDETRACK AND OTHER PRIVATE
SIDETRACKS CONNECTED WITH SPUR NO. 245.  THUS ALL INTERSTATE RAILROAD
SHIPMENTS TO SWIFT'S SIDING AND TO OTHERS SIMILARLY LOCATED CAN BE MADE
ONLY OVER THE SEGMENT OF TRACK OWNED BY STOCK YARDS.  BECAUSE OF ITS
INTEREST IN TRACK 1619, STOCK YARDS WAS MADE A PARTY TO THE PROCEEDINGS
BEFORE THE COMMISSION AND WAS INCLUDED IN ITS CEASE AND DESIST ORDER
ALONG WITH THE RAILROADS.  FN2  SO LONG AS STOCK YARDS CONTINUES TO OWN
TRACK 1619, DELIVERY OF LIVESTOCK AND OTHER FREIGHT BY NEW YORK CENTRAL
TO SWIFT AND OTHERS SIMILARLY LOCATED DEPENDS UPON WHETHER AND TO WHAT
EXTENT STOCK YARDS WILL GRANT OR HAS GRANTED NEW YORK CENTRAL A RIGHT
TO OPERATE OVER TRACK 1619.  THIS PRESENT CASE INVOLVES THE QUESTION OF
WHETHER THE RAILROADS, AND PARTICULARLY NEW YORK CENTRAL, IN MAKING
DELIVERIES OF LIVESTOCK OVER TRACK 1619 TO SWIFT'S SIDETRACK MUST
COMPLY WITH CERTAIN CONDITIONS IMPOSED BY STOCK YARDS IN ITS PRESENT
AGREEMENT WITH NEW YORK CENTRAL. 

TRACK 1619 WAS CONSTRUCTED IN 1899 ON STOCK YARDS' PROPERTY BY STOCK
YARDS AND NEW YORK CENTRAL'S PREDECESSOR IN INTEREST.  A
CONTEMPORANEOUS WRITTEN AGREEMENT, CANCELLABLE ON 60-DAYS' WRITTEN
NOTICE BY THE RAILROAD, GAVE THE RAILROAD A RIGHT TO USE THE TRACK FOR
RAILROAD PURPOSES, PROVIDED THE USE DID NOT INTERFERE WITH STOCK YARDS'
BUSINESS.  IN 1910, AFTER NEGOTIATIONS WITH THE RAILROAD, SWIFT BUILT
ITS SIDETRACK, AND THE RAILROAD EXTENDED ITS SPUR NO. 245 BY A TRACK
WHICH CONNECTED TRACK 1619 WITH SWIFT'S SIDING.  THE 1899 WRITTEN
TRACKAGE AGREEMENT WAS SUPERSEDED BY ANOTHER IN 1924.  THIS ONE WAS
CANCELLABLE BY EITHER PARTY ON 30-DAYS' WRITTEN NOTICE.  IT PROVIDED
THAT THE RAILROAD SHOULD MAINTAIN THE TRACKS AT ITS OWN EXPENSE, AND IT
GRANTED TO THE RAILROAD "THE FREE AND UNINTERRUPTED USE OF ANY AND ALL
TRACKS OR PORTIONS THEREOF BELONGING TO THE INDUSTRY AND LOCATED ON ITS
LAND."  FROM 1910, WHEN SWIFT'S SIDING WAS CONSTRUCTED, TO 1924, AND
FOR MANY YEARS THEREAFTER, THE RAILROAD CONTINUED TO DELIVER ALL KINDS
OF COMMODITIES TO SWIFT AND TO OTHER PACKERS LIKEWISE SERVED ONLY BY
WAY OF SPUR NO. 245 AND TRACK 1619. 

IN THE EARLY 1930'S STOCK YARDS CONCLUDED THAT IT WAS LOSING
PATRONAGE AND FEES BECAUSE OF DELIVERY OF LIVESTOCK TO SWIFT AT ITS
SIDING.  A LARGE PART OF STOCK YARDS' INCOME COMES FROM FEES IT CHARGES
FOR UNLOADING AND DELIVERING INTERSTATE SHIPMENTS OF LIVESTOCK TO PENS
WITHIN ITS YARD.  STOCK CARRIED OVER TRACK 1619 TO SWIFT'S SIDING AND
TO OTHER PRIVATE SIDINGS ARE UNLOADED AT THOSE SIDINGS; AS A RESULT
STOCK YARDS LOSES THE FEES IT WOULD RECEIVE IF LIVESTOCK CONSIGNED TO
SWIFT AND TO OTHER PACKERS WERE UNLOADED AT THE STOCK YARDS.  WITH A
VIEW TOWARD COLLECTING UNLOADING FEES FROM SWIFT AND OTHER PACKERS
SERVED BY SPUR NO. 245, STOCK YARDS INSTITUTED NEGOTIATIONS WITH THE
NEW YORK CENTRAL WHICH IN 1935 RESULTED IN A MODIFICATION OF THEIR 1924
AGREEMENT.  THE OLD 1924 AGREEMENT HAD UNCONDITIONALLY GRANTED
"RAILROAD, (A) THE FREE AND UNINTERRUPTED USE OF ANY AND ALL TRACKS
... "  THE 1935 MODIFIED AGREEMENT ALSO GRANTED NEW YORK CENTRAL "THE
FREE AND UNINTERRUPTED USE" OF STOCK YARDS' TRACKS, BUT ADDED "EXCEPT
FOR COMPETITIVE TRAFFIC A CHARGE FOR WHICH USE SHALL BE THE SUBJECT OF
A SEPARATE AGREEMENT." 

AFTER THIS 1935 RESTRICTIVE MODIFICATION STOCK YARDS DEMANDED THAT
THE RAILROAD ADOPT ONE OF TWO COURSES WITH REGARD TO LIVESTOCK, WHICH
THE PARTIES AGREED WAS THE "COMPETITIVE TRAFFIC" THE MODIFIED AGREEMENT
WAS DESIGNED TO SUPPRESS.  THE RAILROAD MUST EITHER STOP CARRYING
LIVESTOCK OVER TRACK 1619 TO SWIFT AND OTHER PACKERS OR PAY STOCK
YARDS, FOR USE OF TRACK 1619 IN CARRYING LIVESTOCK TO THESE PACKERS, AN
AMOUNT EQUIVALENT TO FEES STOCK YARDS WOULD HAVE COLLECTED HAD THE
LIVESTOCK CONSIGNED TO THEM BEEN UNLOADED AND DELIVERED IN THE YARD. 
THIS AMOUNT WAS CONSIDERED EXORBITANT BY NEW YORK CENTRAL AND THE OTHER
RAILROADS FOR WHOM NEW YORK CENTRAL PERFORMED SWITCHING CHARGES, AND
THEY THEREFORE REFUSED TO PAY IT.  THE RESULT WAS THAT IN 1938 THE
RAILROADS CEASED DELIVERING LIVESTOCK TO THE SIDINGS OF SWIFT AND OTHER
PACKERS SERVED BY SPUR NO. 245,  FN3  ALTHOUGH THEY HAVE UNDER
AGREEMENT WITH STOCK YARDS CONTINUED TO USE THE SPUR FOR DELIVERY OF
ALL OTHER KINDS OF COMMODITY SHIPMENTS TO THESE SIDINGS.  SWIFT
DEMANDED THAT THE RAILROADS DELIVER LIVESTOCK TO ITS SIDING, AND IN
1941 FILED A COMPLAINT WITH THE INTERSTATE COMMERCE COMMISSION UPON
THEIR REFUSAL TO MAKE DELIVERIES. 

AFTER NOTICE AND HEARING THE COMMISSION CONCLUDED THAT THE RAILROAD'S
REFUSAL TO CARRY LIVESTOCK TO SWIFT VIOLATED SEVERAL PROVISIONS OF THE
INTERSTATE COMMERCE ACT.  IT WAS FOUND TO VIOLATE SEC. 3(1) BECAUSE OF
THE DISCRIMINATION AGAINST A SINGLE COMMODITY, LIVESTOCK, AND BECAUSE
NEW YORK CENTRAL'S DELIVERIES OF LIVESTOCK TO THE SIDETRACKS OF SOME OF
SWIFT'S NEARBY COMPETITORS, WHOSE SIDINGS WERE SERVED WITHOUT USING
TRACK 1619, SUBJECTED SWIFT TO UNDUE PREJUDICE AND GAVE THOSE
COMPETITORS AN UNDUE PREFERENCE.  THE COMMISSION ALSO FOUND THAT THE
FAILURE TO DELIVER UNDER THE CIRCUMSTANCES SHOWN WAS A VIOLATION OF
SEC. 1(6) WHICH FORBIDS UNREASONABLE PRACTICES AFFECTING THE MANNER AND
METHOD OF DELIVERING FREIGHT, AND ALSO A VIOLATION OF SEC. 1(9) WHICH
REQUIRES RAILROADS TO OPERATE SWITCH CONNECTIONS WITH PRIVATE SIDE
TRACKS WITHOUT DISCRIMINATION UNDER SUCH CONDITIONS AS THE COMMISSION
FOUND TO EXIST HERE. 

THE COMMISSION'S FINDINGS OF FACT ARE NOT CHALLENGED.  THERE CAN BE
NO DOUBT THAT THOSE FACTS FOUND WOULD CONSTITUTE A VIOLATION OF THE
RAILROAD.  OWNERSHIP OF TRACK 1619 BY STOCK YARDS AND ITS OBJECTION TO
LIVESTOCK DELIVERIES IS, IN FACT, THE ONLY REASON SUGGESTED FOR THE
RAILROADS' FAILURE TO DELIVER SHIPMENTS OF LIVESTOCK TO SWIFT AS THEY
DO TO NEIGHBORING PACKERS, AND FOR THEIR FAILURE TO PROVIDE SWITCHING
CONNECTIONS FOR LIVESTOCK SHIPMENTS.  FROM WHAT HAS BEEN SAID OUR
QUESTION IS THIS:  CAN THE NONCARRIER OWNER OF A SEGMENT OF RAILROAD
TRACK WHO CONTRACTS FOR AN INTERSTATE RAILROAD'S USE OF THE SEGMENT AS
PART OF ITS LINE RESERVE A RIGHT TO REGULATE THE TYPE OF COMMODITIES
THAT THE RAILROAD MAY TRANSPORT OVER THE SEGMENT, OR WOULD SUCH A
RESERVATION BE INVALID UNDER THE INTERSTATE COMMERCE ACT? 

THE INTERSTATE COMMERCE ACT IS ONE OF THE MOST COMPREHENSIVE
PREHENSIVE REGULATORY PLANS THAT CONGRESS HAS EVER UNDERTAKEN.  THE
FIRST ACT, AND ALL AMENDMENTS TO IT, HAVE AIMED AT WIPING OUT
DISCRIMINATIONS OF ALL TYPES, NEW YORK V. UNITED STATES, 331 U.S. 284,
296, AND LANGUAGE OF THE BROADEST SCOPE HAS BEEN USED TO ACCOMPLISH ALL
THE PURPOSES OF THE ACT.  UNITED STATES V. PENNSYLVANIA R. CO., 323
U.S. 612, 616.  IT WOULD BE STRANGE HAD THIS LEGISLATION LEFT A WAY
OPEN WHEREBY CARRIERS COULD ENGAGE IN DISCRIMINATIONS MERELY BY
ENTERING INTO CONTRACTS FOR THE USE OF TRACKAGE.  IN FACT THIS COURT
HAS LONG RECOGNIZED THAT THE PURPOSE OF CONGRESS TO PREVENT CERTAIN
TYPES OF DISCRIMINATIONS AND PREJUDICIAL PRACTICES COULD NOT BE
FRUSTRATED BY CONTRACTS, EVEN THOUGH THE CONTRACTS WERE EXECUTED BEFORE
ENACTMENT OF THE LEGISLATION.  SEE PHILADELPHIA, BALT.  & WASH. R. CO.
V. SCHUBERT, 224 U.S. 603, 613-614; LOUISVILLE & NASHVILLE R. CO. V.
MOTTLEY, 219 U.S. 467, 483, 485-86. 

WE THINK THE PROVISIONS OF THE INTERSTATE COMMERCE ACT PLAINLY
EMPOWERED THE COMMISSION TO ENTER THIS ORDER AGAINST THE DISCRIMINATORY
PRACTICES FOUND, DESPITE OWNERSHIP OF TRACK 1619 BY STOCK YARDS. 
CARRIERS "WHOLLY BY RAILROAD."  SECTION 1(3)(A) DEFINES THE TERM
"RAILROAD" AS INCLUDING "ALL THE ROAD IN USE BY ANY COMMON CARRIER
OPERATING A RAILROAD, WHETHER OWNED OR OPERATED UNDER A CONTRACT,
AGREEMENT, OR LEASE, AND ALSO ALL SWITCHES, SPURS, TRACKS  ...  "  AS
ONE OF THE MANY OTHER INDICATIONS THAT CONGRESS DID NOT INTEND ITS
RAILROAD REGULATORY PROVISIONS TO DEPEND ON WHO HAD LEGAL TITLE TO
TRANSPORTATION INSTRUMENTALITIES, SEC. 1(3)(A) ALSO PROVIDES THAT THE
WORD "TRANSPORTATION" AS USED IN THE ACT SHALL BROADLY INCLUDE
"LOCOMOTIVES  ...  AND ALL INSTRUMENTALITIES AND FACILITIES OF SHIPMENT
OR CARRIAGE, IRRESPECTIVE OF OWNERSHIP OR OF ANY CONTRACT, EXPRESS OR
IMPLIED, FOR THE USE THEREOF  ...  "  IT IS TRUE, AS APPELLEES ARGUE,
THAT THE ABOVE LANGUAGE OF SEC. 1(3)(A) IS DEFINITIONAL ONLY.  ELLIS V.
INTERSTATE COMMERCE COMM'N, 237 U.S. 434.  BUT IT IS ALSO TRUE THAT
THESE DEFINITIONS BY THEIR UNAMBIGUOUS LANGUAGE MAKE ALL TRACKAGE "IN
USE BY ANY COMMON CARRIER" SUBJECT TO THE REGULATORY PROVISIONS OF THE
ACT, EVEN THOUGH NOT OWNED BY THE CARRIER BUT ONLY USED BY IT UNDER A
CONTRACT OR AGREEMENT.  THUS TRACK 1619, THOUGH OWNED BY STOCK YARDS,
WAS SUBJECT TO THE ACT BECAUSE OF ITS USE BY THE NEW YORK CENTRAL UNDER
TRACKAGE AGREEMENTS. 

IT IS JUST AS PREJUDICIAL TO SHIPPERS AND THE PUBLIC FOR A RAILROAD
THAT USES A PORTION OF TRACK UNDER LEASE OR CONTRACT TO DISCRIMINATE AS
IT IS FOR THE DISCRIMINATION TO BE INFLICTED BY A RAILROAD THAT OWNS
ITS ENTIRE TRACK.  PRACTICALLY THE ONLY ARGUMENT SUGGESTED TO JUSTIFY
DISCRIMINATORY PRACTICES UNDER THE CIRCUMSTANCES HERE IS THAT AN OWNER
HAS A RIGHT TO LET OTHERS USE HIS LAND SUBJECT TO WHATSOEVER CONDITIONS
THE OWNER CHOOSES TO IMPOSE.  IT IS EVEN ARGUED THAT TO CONSTRUE THE
INTERSTATE COMMERCE ACT AS LIMITING THAT RIGHT WOULD RESULT IN
DEPRIVING AN OWNER OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW.  BUT NO
SUCH BROAD GENERALIZATION CAN BE ACCEPTED.  PROPERTY CAN BE USED EVEN
BY ITS OWNER ONLY IN ACCORDANCE WITH LAW, AND CONDITIONS ITS OWNER
PLACES ON ITS USE BY ANOTHER ARE SUBJECT TO LIKE LIMITATIONS.  OF
COURSE IT DOES NOT DEPRIVE AN OWNER OF HIS PROPERTY WITHOUT DUE PROCESS
OF LAW TO DENY HIM THE RIGHT TO ENFORCE CONDITIONS UPON ITS USE WHICH
CONFLICT WITH THE POWER OF CONGRESS TO REGULATE RAILROADS SO AS TO
SECURE EQUALITY OF TREATMENT OF THOSE WHOM THE RAILROADS SERVE. 

HERE CONGRESS UNDER ITS CONSTITUTIONAL AUTHORITY HAS PROVIDED THAT NO
RAILROAD SHALL ENGAGE IN CERTAIN TYPES OF DISCRIMINATORY CONDUCT IN
VIOLATION OF THREE PROVISIONS OF THE ACT.  THE COMMISSION FOUND THAT
DISCRIMINATORY CONDUCT HERE.  THE EXCUSE OFFERED BY THE RAILROADS IS
THAT THE OWNER OF TRACK 1619 REQUIRED THEM TO DO THE PROHIBITED
THINGS.  BUT THE COMMAND OF CONGRESS AGAINST DISCRIMINATION CANNOT BE
SUBORDINATED TO THE COMMAND OF A TRACK OWNER THAT A RAILROAD USING THE
TRACK PRACTICE DISCRIMINATION. 

WE HOLD THAT THE COMMISSION'S ORDER WAS AUTHORIZED BY STATUTE AND
THAT IT DOES NOT DEPRIVE STOCK YARDS OF ITS PROPERTY WITHOUT DUE
PROCESS OF LAW.  IN DOING SO WE DO NOT PASS UPON ANY QUESTIONS IN
RELATION TO THE DEDICATION OF TRACK 1619 TO RAILROAD USE.  NEITHER DO
WE DECIDE WHAT ARE THE RELATIVE FINANCIAL RIGHTS OF STOCK YARDS AND NEW
YORK CENTRAL UNDER THEIR CONTRACTS, NOR WHETHER STOCK YARDS CAN CANCEL
THE CONTRACT WITH NEW YORK CENTRAL, NOR WHAT WOULD BE THE DUTY OF NEW
YORK CENTRAL SHOULD STOCK YARDS ATTEMPT TO TERMINATE ITS RIGHT TO USE
TRACK 1619.  WE ONLY HOLD THAT STOCK YARDS' OWNERSHIP OF TRACK 1619
DOES NOT VEST IT WITH POWER TO COMPEL THE RAILROADS TO OPERATE IN A WAY
WHICH VIOLATES THE INTERSTATE COMMERCE ACT. 

THE COMMISSION'S ORDER IS VALID AND SHOULD BE ENFORCED.  REVERSED. 

FN1  THE RAILROAD APPELLEES ARE BALTIMORE & OHIO RAILROAD COMPANY,
THE ERIE RAILROAD COMPANY, THE WHEELING & LAKE ERIE RAILROAD COMPANY,
THE NEW YORK CENTRAL RAILROAD COMPANY, AND THE PENNSYLVANIA RAILROAD
COMPANY.    FN2  APPELLEES ARGUE THAT STOCK YARDS WAS IMPROPERLY MADE A
PARTY AND THAT THE COMMISSION WAS WITHOUT POWER TO INCLUDE STOCK YARDS
IN ITS CEASE AND DESIST ORDER.  WE THINK SEC. 2 OF THE ELKINS ACT, 32
STAT. 848, 49 U.S.C. SEC. 42, JUSTIFIED THE COMMISSION'S ACTION AND
FIND NO MERIT TO THE CONTENTION THAT WE SHOULD BY INTERPRETATION
RESTRICT THAT SECTION'S BROAD LANGUAGE AUTHORIZING INCLUSION AS PARTIES
OF "ALL PERSONS INTERESTED IN OR AFFECTED BY THE RATE, REGULATION, OR
PRACTICE UNDER CONSIDERATION" BY THE COMMISSION OR BY A COURT, AND
WHICH PROVIDES THAT DECREES MAY BE MADE WITH REFERENCE TO SUCH
ADDITIONAL PARTIES TO THE SAME EXTENT AS THOUGH THEY WERE CARRIERS. 

FN3  IN 1938 NEW YORK CENTRAL CEASED TO SWITCH LIVESTOCK CARLOADS OF
OTHER CARRIERS OVER SPUR NO. 245 TO SWIFT'S SIDING, AND IT CANCELED ITS
TARIFFS FOR THIS SERVICE.  SINCE THAT TIME THERE HAS BEEN NO SPECIFIC
TARIFF AUTHORITY FOR MOVEMENT OF LIVESTOCK TO SWIFT'S SIDING WHEN
SHIPPED TO CLEVELAND OVER LINES OTHER THAN THE NEW YORK CENTRAL. 
ALTHOUGH NEW YORK CENTRAL HAS NEVER CANCELED ITS TARIFF FOR LIVESTOCK
SHIPMENTS TO SWIFT'S CLEVELAND SIDING FROM POINTS OF ORIGIN ON ITS OWN
LINES, IT HAS DELIVERED ALL LIVESTOCK CONSIGNED TO SWIFT'S SIDING TO
STOCK YARDS SINCE 1938.  SWIFT HAS BEEN FORCED TO PAY CHARGES TO STOCK
YARDS TO OBTAIN POSSESSION OF LIVESTOCK UNLOADED AT THE YARDS. 

MR. JUSTICE BURTON, DISSENTING. 

FOR THE REASONS STATED IN THE OPINION OF THE DISTRICT COURT IN THIS
CASE, 71 F.SUPP.  499, I BELIEVE THAT THE ORDER OF THE INTERSTATE
COMMERCE COMMISSION EXCEEDED ITS JURISDICTION AND THAT THE JUDGMENT
PERMANENTLY ENJOINING THE ENFORCEMENT OF SUCH ORDER SHOULD HAVE BEEN
AFFIRMED. 
..END :

















DONALDSON V. READ MAGAZINE, 333 U.S. 178 


NO. 50.  ARGUED OCTOBER 24, 1947.  REARGUED JANUARY 5, 1948.  - DECIDED
MARCH 8, 1948.  - 81 U.S. APP. D.C. 339, 158 F.2D 542, REVERSED. 


1.  WHERE THE POSTMASTER GENERAL HAS ISSUED A FRAUD ORDER UNDER 39
U.S.C. SECS. 259, 732, AND LATER CONCLUDES THAT IT IS BROADER THAN
NECESSARY TO PROTECT THE PUBLIC, HE HAS POWER TO MODIFY THE ORDER SO AS
TO MAKE IT LESS INCLUSIVE - EVEN THOUGH THERE BE PENDING IN THIS COURT
AT THE TIME A REVIEW OF A JUDGMENT OF A FEDERAL COURT OF APPEALS
AFFIRMING A JUDGMENT OF A DISTRICT COURT ENJOINING ENFORCEMENT OF THE
ORDER.  PP. 183-185. 

2.  THE EVIDENCE IN THIS CASE WAS SUFFICIENT TO SUPPORT THE FINDING
OF THE POSTMASTER GENERAL THAT RESPONDENTS' ADVERTISEMENTS OF A SO
CALLED "PUZZLE CONTEST" HAD BEEN DELIBERATELY CONTRIVED TO DIVERT
READERS' ATTENTION FROM MATERIAL BUT ADROITLY OBSCURED FACTS AND THAT
RESPONDENTS WERE CONDUCTING A SCHEME TO OBTAIN MONEY THROUGH THE MAILS
BY MEANS OF FALSE AND FRAUDULENT REPRESENTATIONS IN VIOLATION OF 39
U.S.C. SECS. 259, 732.  PP. 185-189. 

3.  THE FRAUD ORDER STATUTES, 39 U.S.C. SECS. 259, 732, AS
INTERPRETED AND APPLIED BY THE POSTMASTER GENERAL IN THIS CASE, ARE
CONSTITUTIONAL.  PUBLIC CLEARING HOUSE V. COYNE, 194 U.S. 497.  PP. 189
192. 

DONALDSON, POSTMASTER GENERAL, V. READ MAGAZINE, INC. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

THE DISTRICT COURT ENJOINED ENFORCEMENT OF A FRAUD ORDER ISSUED BY
THE POSTMASTER GENERAL UNDER 39 U.S.C. SECS. 259, 732.  63 F.SUPP. 
318.  THE COURT OF APPEALS AFFIRMED.  81 U.S. APP. D.C. 339, 158 F.2D
542.  THIS COURT GRANTED CERTIORARI, 331 U.S. 798, AND SUBSTITUTED
DONALDSON FOR HANNEGAN AS PETITIONER.  332 U.S. 840.  REVERSED AND
REMANDED TO THE DISTRICT COURT, P. 192. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS QUESTIONS AS TO THE VALIDITY OF AN ORDER ISSUED BY
PETITIONER, THE POSTMASTER GENERAL, WHICH DIRECTED THAT MAIL ADDRESSED
TO SOME OF RESPONDENTS BE RETURNED TO THE SENDERS MARKED "FRAUDULENT,"
AND THAT POSTAL MONEY ORDER SUMS PAYABLE TO THEIR ORDER BE RETURNED TO
THE REMITTERS. 

THE RESPONDENT PUBLISHERS SERVICE COMPANY HAS CONDUCTED MANY CONTESTS
TO PROMOTE THE CIRCULATION OF NEWSPAPERS IN WHICH IT HAS ADVERTISED
THAT PRIZES WOULD BE GIVEN FOR THE SOLUTION OF PUZZLES.  THROUGH ITS
CORPORATE SUBSIDIARIES, RESPONDENTS LITERARY CLASSICS, INC., AND READ
MAGAZINE, INC., IT PUBLISHES BOOKS AND TWO MONTHLY MAGAZINES CALLED
READ AND FACTS.  THE PLACE OF BUSINESS IS IN NEW YORK CITY. 

IN 1945 RESPONDENTS TO PROMOTE SALES OF THEIR BOOKS PUT ON A
NATIONALLY ADVERTISED PROJECT, KNOWN AS THE FACTS MAGAZINE HALL OF FAME
PUZZLE CONTEST.  THE POSTMASTER GENERAL AFTER A HEARING FOUND "UPON
EVIDENCE SATISFACTORY TO HIM" THAT THE "PUZZLE CONTEST" WAS "A SCHEME
OR DEVICE FOR OBTAINING MONEY THROUGH THE MAILS BY MEANS OF FALSE AND
FRAUDULENT PRETENSES, REPRESENTATIONS, AND PROMISES, IN VIOLATION OF
POSTMASTER GENERAL FOUND THAT THE REPRESENTATIONS WERE FALSE AND
FRAUDULENT FOR TWO PRINCIPAL REASONS.  FIRST, THAT PROSPECTIVE
CONTESTANTS WERE FALSELY LED TO BELIEVE THAT THEY MIGHT BE ELIGIBLE TO
WIN PRIZES UPON PAYMENT OF $3 AS A MAXIMUM SUM WHEN IN REALITY THE
MINIMUM REQUIREMENT WAS $9, AND AS IT LATER DEVELOPED THEY WERE FINALLY
CALLED ON TO PAY AS MUCH AS $42 TO BE ELIGIBLE FOR INCREASED PRIZE
OFFERS.  SECOND, THE POSTMASTER GENERAL FOUND THAT THOUGH THE CONTEST
WAS EMPHASIZED IN ADVERTISEMENTS AS A "PUZZLE CONTEST" IT WAS NOT A
PUZZLE CONTEST; THAT RESPONDENTS KNEW FROM EXPERIENCE THAT THE PUZZLES
WERE SO EASY THAT MANY PEOPLE WOULD SOLVE ALL THE "PUZZLES" AND THAT
PRIZES WOULD BE AWARDED ONLY AS A RESULT OF A TIE-BREAKING LETTER-ESSAY
CONTEST; AND THAT CONTESTANTS WERE DELIBERATELY MISLED CONCERNING ALL
THESE FACTS BY ARTFULLY COMPOSED ADVERTISEMENTS. 

THE CONTEST WAS UNDER THE IMMEDIATE SUPERVISION OF RESPONDENTS HENRY
WALSH LEE AND JUDITH S. JOHNSON, EDITOR-IN-CHIEF AND "CONTEST EDITOR"
RESPECTIVELY OF FACTS.  THE POSTMASTER GENERAL'S ORIGINAL FRAUD ORDER
RELATED TO MAIL AND MONEY ORDERS DIRECTED TO 

"PUZZLE CONTEST, FACTS MAGAZINE; CONTEST EDITOR, FACTS MAGAZINE;
JUDITH S. JOHNSON, CONTEST EDITOR; MISS J. S. JOHNSON, CONTEST EDITOR;
CONTEST EDITOR; FACTS MAGAZINE; AND HENRY WALSH LEE, EDITOR IN CHIEF,
FACTS MAGAZINE, AND THEIR OFFICERS AND AGENTS AS SUCH, AT NEW YORK, NEW
YORK." 

RESPONDENTS FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA TO ENJOIN ENFORCEMENT OF THE ORDER.  THEY
ALLEGED ITS INVALIDITY ON THE GROUNDS THAT THERE WAS NO SUBSTANTIAL
EVIDENCE TO SUPPORT THE POSTMASTER GENERAL'S FINDINGS OF FRAUD, AND
THAT THE STATUTORY PROVISIONS UNDER WHICH THE ORDER WAS ISSUED
AUTHORIZE THE POSTMASTER GENERAL TO ACT AS A CENSOR AND HENCE VIOLATE
THE FIRST AMENDMENT.  THE DISTRICT COURT ISSUED A TEMPORARY RESTRAINING
ORDER BUT DIRECTED THAT PENDING FURTHER ORDERS RESPONDENTS SHOULD
DEPOSIT IN COURT ALL MONEYS AND THE PROCEEDS OF ALL CHECKS AND MONEY
ORDERS RECEIVED THROUGH THE MAILS AS QUALIFYING FEES FOR THE HALL OF
FAME PUZZLE CONTEST.  AFTER A HEARING THE RESPONDENTS' MOTION FOR
SUMMARY JUDGMENT WAS GRANTED ON THE GROUND THAT THE FINDINGS WERE NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE.  63 F.SUPP.  318.  THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA AFFIRMED ON THE SAME
GROUND, ONE JUDGE DISSENTING.  158 F.2D 542.  WE GRANTED CERTIORARI. 

THE CASE HAS BEEN TWICE ARGUED IN THIS COURT.  BRIEFS OF BOTH PARTIES
ON THE FIRST ARGUMENT DEALT ONLY WITH THE QUESTION OF WHETHER THE
POSTMASTER GENERAL'S FINDINGS OF FRAUD WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE.  BUT ASSUMING VALIDITY OF THE FINDINGS, QUESTIONS AROSE
DURING THE FIRST ORAL ARGUMENT CONCERNING THE SCOPE OF THE FRAUD
ORDER.  THAT ORDER HAD INCLUDED A DIRECTION TO THE NEW YORK POSTMASTER
TO REFUSE TO DELIVER ANY MAIL OR TO PAY ANY MONEY ORDERS TO FACTS, ITS
OFFICERS AND AGENTS, INCLUDING ITS EDITOR-IN-CHIEF, WHO WAS ALSO EDITOR
OF READ.  THE TWO MONTHLY MAGAZINES, BOTH PUBLISHED IN NEW YORK, HAD AN
AGGREGATE CIRCULATION OF NEARLY FIVE HUNDRED THOUSAND COPIES.  WE WERE
TOLD THE TOTAL DEPRIVATION OF THE RIGHT OF FACTS AND OF THE EDITOR OF
THE TWO MAGAZINES TO RECEIVE MAIL AND TO CASH MONEY ORDERS WOULD
PRACTICALLY PUT BOTH MAGAZINES OUT OF BUSINESS.  SEE MILWAUKEE
PUBLISHING CO. V. BURLESON, 255 U.S. 407.  FURTHERMORE, THE ORDER WAS
OF INDEFINITE DURATION AND FACTS AND ITS AFFILIATES HAVE MADE A
BUSINESS OF CONDUCTING CONTESTS TO PROMOTE THE CIRCULATION OF BOOKS AND
MAGAZINES.  THE ORDER, IF INDEFINITELY ENFORCED, MIGHT HAVE RESULTED IN
BARRING DELIVERY OF MAIL AND PAYMENT OF MONEY ORDERS IN RELATION TO
OTHER NON-FRAUDULENT CONTESTS AS WELL AS LEGITIMATE MAGAZINE BUSINESS. 
ALL OF THE FOREGOING RAISED QUESTIONS ABOUT THE VALIDITY AND SCOPE OF
THE ORIGINAL ORDER, IF UNMODIFIED, WHICH WE DEEMED OF SUFFICIENT
IMPORTANCE TO JUSTIFY FURTHER ARGUMENT.  FOR THAT REASON WE SET THE
CASE DOWN FOR REARGUMENT, REQUESTING PARTIES TO DISCUSS THE VALIDITY
AND SCOPE OF THE ORDER, AND WHETHER, IF INVALID BY REASON OF ITS SCOPE,
IT COULD BE SO MODIFIED AS TO FREE IT FROM STATUTORY OR CONSTITUTIONAL
OBJECTIONS.  FN1 

THEREAFTER, AND BEFORE REARGUMENT, THE POSTMASTER GENERAL REVOKED THE
ORDER INSOFAR AS IT APPLIED TO FACTS MAGAZINE, ITS EDITOR-IN-CHIEF, AND
ITS OFFICERS AND AGENTS.  AS MODIFIED, THE ORDER BARS DELIVERY OF MAIL
AND PAYMENT OF MONEY ORDERS ONLY TO ADDRESSEES DESIGNATED IN THE
CONTEST ADVERTISEMENTS: 

"PUZZLE CONTEST, FACTS MAGAZINE; CONTEST EDITOR, FACTS MAGAZINE;
JUDITH S. JOHNSON, CONTEST EDITOR; MISS J. S. JOHNSON, CONTEST EDITOR;
CONTEST EDITOR." 

THE POSTMASTER GENERAL, SO WE ARE INFORMED, DOES NOT CONSTRUE THE
MODIFIED ORDER AS FORBIDDING DELIVERY OF MAIL OR PAYMENT OF MONEY
ORDERS TO FACTS MAGAZINE OR EVEN TO MISS JUDITH (J. S.)  JOHNSON,
INDIVIDUALLY.  SO CONSTRUED, THE ORDER IS NARROWLY RESTRICTED TO MAIL
AND MONEY ORDERS SENT IN RELATION TO THE HALL OF FAME PUZZLE CONTEST
FOUND FRAUDULENT, AND WOULD NOT BAR DELIVERIES TO THE MAGAZINES, TO
THEIR EDITOR, OR TO THE THREE CORPORATE RESPONDENTS.  IT WOULD BAR
DELIVERIES TO JUDITH (J. S.)  JOHNSON, ONLY IF SENT TO HER AT THE
DESIGNATED ADDRESS AND IN HER CAPACITY AS "CONTEST EDITOR."  LIKEWISE
THE DISTRICT COURT'S ORDER IMPOUNDING FUNDS IS LIMITED TO QUALIFYING
FEES RECEIVED IN THE HALL OF FAME PUZZLE CONTEST.  IF THE POSTMASTER
GENERAL'S ACTION IN MODIFYING THE ORDER IS VALID, THE QUESTIONS WE
ASKED TO HAVE ARGUED HAVE LARGELY BEEN ELIMINATED FROM THE ORIGINAL
ORDER. 

RESPONDENTS' CONTENTIONS NOW ARE:  (1)  THE POSTMASTER GENERAL LACKED
POWER TO MODIFY HIS ORIGINAL FRAUD ORDER, AND HENCE THAT ORDER REMAINS
SUBJECT TO ANY AND ALL OF ITS ORIGINAL INFIRMITIES.  (2)  THE FINDINGS
ON WHICH THE ORDER IS BASED ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 
(3) THE STATUTES UNDER WHICH THE ORDER WAS ISSUED VIOLATE VARIOUS
CONSTITUTIONAL PROVISIONS. 

FIRST.  RESPONDENTS' CONTENTION THAT THE POSTMASTER GENERAL WAS
WITHOUT POWER TO MODIFY THE ORDER BY ELIMINATION OF FACTS MAGAZINE, ITS
EDITOR, AND ITS OFFICERS AND AGENTS IS BASED ALMOST ENTIRELY ON THEIR
TWO OTHER GROUNDS FOR ASSERTING INVALIDITY OF THE ORDER.  OF COURSE, IF
THE ORDER WERE WHOLLY INVALID AS TO ALL OF THE RESPONDENTS FOR THESE
REASONS, IT COULD NOT HAVE BEEN VALIDATED MERELY BY ELIMINATING SOME OF
THEM FROM ITS TERMS.  BUT LAYING ASIDE RESPONDENTS' OTHER CONTENTIONS
FOR THE MOMENT, WE HAVE NO DOUBT AS TO THE POSTMASTER GENERAL'S
AUTHORITY TO MODIFY THE FRAUD ORDER. 

HAVING CONCLUDED THAT THE ORIGINAL ORDER WAS BROADER THAN NECESSARY
TO REACH THE FRAUD PROVED, THE POSTMASTER GENERAL NOT ONLY POSSESSED
THE POWER BUT HE HAD THE DUTY TO REDUCE ITS SCOPE TO WHAT WAS ESSENTIAL
FOR THAT PURPOSE.  THE PURPOSE OF MAIL FRAUD ORDERS IS NOT PUNISHMENT,
BUT PREVENTION OF FUTURE INJURY TO THE PUBLIC BY DENYING THE USE OF THE
MAILS TO AID A FRAUDULENT SCHEME.  SEE COMM'R V. HEININGER, 320 U.S.
467, 474.  SUCH ORDERS IF TOO BROAD COULD WORK GREAT HARDSHIPS AND
INFLICT UNNECESSARY INJURIES UPON INNOCENT PERSONS AND BUSINESSES.  NO
PERSUASIVE REASON HAS BEEN SUGGESTED WHY THE POSTMASTER GENERAL SHOULD
BE WITHOUT POWER TO MODIFY AN ORDER OF THIS KIND.  SUCH AN ORDER IS
SIMILAR TO AN EQUITABLE INJUNCTION TO RESTRAIN FUTURE CONDUCT, AND LIKE
SUCH AN INJUNCTION SHOULD BE SUBJECT TO MODIFICATION WHENEVER IT
APPEARS THAT ONE OR MORE OF THE RESTRAINTS IMPOSED ARE NO LONGER NEEDED
TO PROTECT THE PUBLIC.  UNITED STATES V. SWIFT & CO., 286 U.S. 106,
114; SEE SKINNER & EDDY CORP. V. UNITED STATES, 249 U.S. 557, 570. 

FURTHERMORE, THE MODIFICATION HERE INVOLVED WAS FOR RESPONDENTS'
BENEFIT; IT GAVE THEM A PART OF THE VERY RELIEF FOR WHICH THEY PRAYED. 
IT REMOVED THE BAN AGAINST DELIVERY OF MAIL AND PAYMENT OF MONEY ORDERS
TO THEIR MAGAZINE, ITS EDITOR AND ITS AGENTS - A BAN WHICH WE WERE TOLD
WOULD HAVE DONE THEM IRREPARABLE INJURY IF LEFT IN EFFECT.  THE
POSSIBILITY THAT ANOTHER ORDER MIGHT BE ENTERED AGAINST THE ELIMINATED
RESPONDENTS IS TOO REMOTE TO REQUIRE US TO CONSIDER THE ORIGINAL ORDER
AS THOUGH THE MODIFICATION HAD NEVER BEEN MADE.  SEE UNITED STATES V.
HAMBURG-AMERICAN CO., 239 U.S. 466, 475-476. 

NOR DOES THE MODIFICATION SUBJECT RESPONDENTS TO ANY DISADVANTAGE IN
THIS CASE IN REFERENCE TO THE IMPOUNDED FUNDS.  THOSE FUNDS ARE SUMS
SENT IN AS QUALIFYING FEES FOR THE SCHEME FOUND FRAUDULENT.  THEY ARE
IN COURT CUSTODY BECAUSE OF THE COURT'S RESTRAINING ORDER; BUT FOR IT
THEY WOULD HAVE BEEN RETURNED TO THE SENDERS AS ORDERED BY THE
POSTMASTER GENERAL.  NOW, AS BEFORE THE FRAUD ORDER WAS MODIFIED, THEIR
DISPOSITION IS DEPENDENT ENTIRELY UPON THE VALIDITY OF THE FINDING OF
FRAUD.  RESPONDENTS COULD THUS CLAIM THE FUNDS ONLY BY ASSERTING A
RIGHT GROWING OUT OF THE SCHEME FOUND FRAUDULENT.  THE COURT HAVING
LAWFUL COMMAND OF SUCH FUNDS MUST ALLOCATE THEM TO THE REMITTERS IF THE
ORDER IS VALID.  SEE INLAND STEEL CO. V. UNITED STATES, 306 U.S. 153,
156-158; UNITED STATES V. MORGAN, 307 U.S. 183, 194-195. 

SECOND.  RESPONDENTS CONTEND THAT THERE WAS NO SUBSTANTIAL EVIDENCE
TO SUPPORT THE POSTMASTER GENERAL'S FINDINGS THAT THEY HAD REPRESENTED
THAT PRIZES COULD BE WON (1) ON PAYMENT OF ONLY THREE DOLLARS AS
CONTEST FEES OR (2) BY THE MERE SOLUTION OF PUZZLES.  THEY SAY THAT THE
VERY ADVERTISEMENTS AND CIRCULAR LETTERS TO CONTESTANTS FROM WHICH
THESE INFERENCES WERE DRAWN BY THE POSTMASTER GENERAL CONTAINED
LANGUAGE WHICH SHOWED THAT THE FIRST $3 SERIES OF PUZZLES MIGHT RESULT
IN TIES, MAKING NECESSARY A SECOND AND MAYBE A THIRD $3 PUZZLE SERIES,
AND THAT IF THESE THREE EFFORTS FAILED TO DETERMINE THE PRIZE WINNERS,
THEY WOULD THEN BE SELECTED ON THE BASIS OF COMPETITIVE LETTERS,
WRITTEN BY THE TIED CONTESTANTS ON THE SUBJECT "THE PUZZLE I FOUND MOST
INTERESTING AND EDUCATIONAL IN THIS CONTEST." 

THERE WERE SENTENCES IN THE RESPONDENTS' ADVERTISEMENTS AND
COMMUNICATIONS WHICH, STANDING ALONE, WOULD HAVE CONVEYED TO A CAREFUL
READER INFORMATION AS TO THE NINE-DOLLAR FEES AND THE LETTER-ESSAY
FEATURE OF THE CONTEST.  HAD THESE SENTENCES STOOD ALONE, DOUBTLESS THE
FRAUD FINDINGS OF THE POSTMASTER GENERAL WOULD NOT HAVE BEEN
JUSTIFIED.  BUT THEY DID NOT STAND ALONE.  THEY WERE BUT SMALL AND
INCONSPICUOUS PORTIONS OF LENGTHY DESCRIPTIONS USED BY RESPONDENTS TO
PRESENT THEIR CONTEST TO THE PUBLIC IN THEIR ADVERTISEMENTS AND
LETTERS.  IN REVIEWING FRAUD FINDINGS OF THE POSTMASTER GENERAL,
NEITHER THIS COURT NOR ANY OTHER IS AUTHORIZED TO PICK OUT PARTS OF THE
ADVERTISEMENTS ON WHICH RESPONDENTS PARTICULARLY RELY, DECIDE THAT
THESE EXCERPTS WOULD HAVE SUPPORTED DIFFERENT FINDINGS, AND SET ASIDE
HIS ORDER FOR THAT REASON.  WE CONSIDER ALL THE CONTENTS OF THE
ADVERTISEMENTS AND LETTERS, AND ALL OF THE EVIDENCE, NOT TO RESOLVE
CONTRADICTORY INFERENCES, BUT ONLY TO DETERMINE IF THERE WAS EVIDENCE
TO SUPPORT THE POSTMASTER GENERAL'S FINDINGS OF FRAUD.  LEACH V.
CARLILE, 258 U.S. 138, 140. 

RESPONDENTS' ADVERTISEMENTS WERE LONG; THEIR FORM LETTERS TO
CONTESTANTS DISCUSSING THE CONTEST, ITS TERMS, AND ITS PROMISES WERE
EVEN LONGER THAN THE ADVERTISEMENTS.  PARADOXICALLY, THE ADVERTISEMENTS
CONSTITUTED AT THE SAME TIME MODELS OF CLARITY AND OF OBSCURITY -
CLARITY IN REFERRING TO PRIZES AND TO A "PUZZLE CONTEST," OBSCURITY IN
REFERRING TO A REMOTE POSSIBILITY OF A LETTER-ESSAY CONTEST.  IN BOLD
TYPE, ALMOST AN INCH HIGH, THEIR ADVERTISEMENTS REFERRED TO "$10,000
FIRST PRIZE PUZZLE CONTEST."  TIME AFTER TIME THEY USED THE WORDS
"PUZZLE" AND "PUZZLE CONTEST."  CONSPICUOUS PICTURES OF SAMPLE
"PUZZLES" COVERED A LARGE PART OF A PAGE.  REBUS "PUZZLES" NOS. 1 TO 4
OF THE CONTEST WERE THERE.  AN EXPLANATION OF WHAT EACH REPRESENTED
APPEARED ABOVE IT.  THE FIRST, IT WAS EXPLAINED, REPRESENTED "THE
INVENTOR OF THE PHONOGRAPH AND ELECTRIC LIGHT," THE SECOND "A
REPUBLICAN PRESIDENT WHO BECAME CHIEF JUSTICE OF THE SUPREME COURT." 
THE LAST TWO CONTAINED EQUALLY HELPFUL CLUES TO THE "PUZZLES."  THE
ADVERTISEMENTS LEFT NO DOUBT THAT THE CONTEST PRESENTED AN OPPORTUNITY
TO WIN LARGE PRIZES IN CONNECTION WITH SOLUTION OF PUZZLES, WHICH
PUZZLES, TO SAY THE LEAST, WOULD NOT BE TOO TAXING ON THE IMAGINATION. 
READERS WHO MIGHT HAVE FELT SOME RELUCTANCE ABOUT PAYING THEIR MONEY
TO ENTER AN ESSAY CONTEST WERE NOT SO IMPRESSIVELY AND CONSPICUOUSLY
INFORMED ABOUT THAT PROSPECT; HERE THE ADVERTISEMENT BECAME A MODEL OF
OBSCURITY.  IN THE LOWER LEFT CORNER OF ONE OF THE ADVERTISING PAGES
APPEARED THE "OFFICIAL RULES OF THE CONTEST," TO WHICH RULES REFERENCES
WERE CAREFULLY PLACED IN VARIOUS PARTS OF THE ADVERTISEMENT, AND WHICH
WERE PRINTED, AS THE DISTRICT COURT'S OPINION OBSERVED, "IN SMALL
TYPE."  THERE WERE TEN RULES.  ABOUT THE MIDDLE OF RULE 9 APPEARED THE
ONLY REFERENCE TO THE POSSIBLE NEED FOR LETTERS AS A MEANS OF BREAKING
TIES.  AND IT IS IMPOSSIBLE TO SAY THAT THE POSTMASTER GENERAL DREW AN
UNREASONABLE INFERENCE IN CONCLUDING THAT COMPETITIVE LETTER-WRITING
THUS OBSCURELY REFERRED TO WAS MENTIONED ONLY AS A REMOTE AND
UNEXPECTED CONTINGENCY.  THE SAME KIND OF OBSCURITY AND DOUBT OCCURS IN
REFERENCE TO THE COST OF THE CONTEST.  THE DISTRICT COURT IN AN OPINION
HOLDING THAT THE POSTMASTER GENERAL'S FINDINGS WERE NOT SUPPORTED BY
THE EVIDENCE HAD THIS TO SAY ABOUT ONE ADVERTISEMENT WHICH WAS WIDELY
USED: 

"INDEED, THE ADVERTISEMENT IS BY NO MEANS A MODEL OF CLARITY AND
LUCIDITY.  IT IS DIFFUSE AND PROLIX, AND AT TIMES SOMEWHAT OBSCURE. 
MANY OF ITS SALIENT PROVISIONS ARE PRINTED IN RATHER SMALL TYPE.  AN
INTENSIVE AND CONCENTRATED READING OF THE ENTIRE TEXT IS INDISPENSABLE
IN ORDER TO ARRIVE AT AN UNDERSTANDING OF THE ENTIRE SCHEME. 
NEVERTHELESS, A CLOSE ANALYSIS OF THIS MATERIAL DISCLOSES THE COMPLETE
PLAN.  NOTHING IS OMITTED, CONCEALED OR MISREPRESENTED.  THERE IS NO
DECEPTION.  THE WELL-FOUNDED CRITICISMS OF THE PLAINTIFFS' LITERATURE
ARE A FAR CRY FROM JUSTIFYING A CONCLUSION THAT THE ANNOUNCEMENT WAS A
FRAUD ON THE PUBLIC.  ...  THE CONCLUSION IS INEVITABLE THAT THERE IS
NO EVIDENCE TO SUPPORT THE FINDING OF FACT ON WHICH THE FRAUD ORDER IS
BASED AND THAT, THEREFORE, THE PLAINTIFF IS ENTITLED TO A PERMANENT
INJUNCTION AGAINST THE ENFORCEMENT OF THE ORDER." 

WE AGREE WITH THE DISTRICT COURT THAT MANY PEOPLE ARE INTELLECTUALLY
CAPABLE OF DISCOVERING THE COST AND NATURE OF THIS CONTEST BY
"INTENSIVE AND CONCENTRATED READING" AND BY CLOSE ANALYSIS OF THESE
ADVERTISEMENTS.  NEVERTHELESS, WE BELIEVE THAT THE POSTMASTER GENERAL
COULD REASONABLY HAVE CONCLUDED, AS HE DID, THAT THE ADVERTISEMENTS AND
OTHER WRITINGS HAD BEEN ARTFULLY CONTRIVED AND COMPOSED IN SUCH MANNER
THAT THEY WOULD CONFUSE READERS, DISTRACT THEIR ATTENTION FROM THE FACT
THAT THE SCHEME WAS IN REALITY AN ESSAY CONTEST, AND MISLEAD THEM INTO
THINKING THAT THEY WERE ENTERING A "REBUS PUZZLE" CONTEST, IN WHICH
PRIZES COULD BE WON BY AN EXPENDITURE OF NOT MORE THAN $3.  THAT
RESPONDENTS' PAST EXPERIENCE IN SIMILAR CONTESTS ENABLED THEM TO KNOW
AT THE BEGINNING THAT ESSAY WRITING, NOT PUZZLE SOLUTIONS, WOULD
DETERMINE PRIZE WINNERS IS HARDLY CONTROVERTIBLE ON THIS RECORD.  THAT
EXPERIENCE WAS BORNE OUT IN THIS CONTEST BY THE FACT THAT OF THE 90,000
CONTESTANTS WHO SUBMITTED ANSWERS TO THE FIRST SERIES OF 80 PUZZLES,
35,000 SOLVED ALL OF THEM, AND OF THAT NUMBER 27,000 HAD COMPLETED THE
FIRST SET OF "TIE-BREAKING PUZZLES" WHEN THE FRAUD ORDER WAS ISSUED. 
UNDER THE CIRCUMSTANCES, TO ADVERTISE THIS AS A PUZZLE CONTEST INSTEAD
OF WHAT IT ACTUALLY WAS CANNOT BE ATTRIBUTED TO A MERE DIFFERENCE IN
"NOMENCLATURE"; SUCH CONDUCT FALLS FAR SHORT OF THAT FAIR DEALING OF
WHICH FRAUD IS THE ANTITHESIS. 

ADVERTISEMENTS AS A WHOLE MAY BE COMPLETELY MISLEADING ALTHOUGH EVERY
SENTENCE SEPARATELY CONSIDERED IS LITERALLY TRUE.  THIS MAY BE BECAUSE
THINGS ARE OMITTED THAT SHOULD BE SAID, OR BECAUSE ADVERTISEMENTS ARE
COMPOSED OR PURPOSEFULLY PRINTED IN SUCH WAY AS TO MISLEAD.  WISER V.
LAWLER, 189 U.S. 260, 264; FARLEY V. SIMMONS, 99 F.2D 343, 346; SEE
ALSO CASES COLLECTED IN 6 ENG. RUL. CAS. 129-131.  THAT EXCEPTIONALLY
ACUTE AND SOPHISTICATED READERS MIGHT HAVE BEEN ABLE BY PENETRATING
ANALYSIS TO HAVE DECIPHERED THE TRUE NATURE OF THE CONTEST'S TERMS IS
NOT SUFFICIENT TO BAR FINDINGS OF FRAUD BY A FACT-FINDING TRIBUNAL. 
QUESTIONS OF FRAUD MAY BE DETERMINED IN THE LIGHT OF THE EFFECT
ADVERTISEMENTS WOULD MOST PROBABLY PRODUCE ON ORDINARY MINDS.  DURLAND
V. UNITED STATES, 161 U.S. 306-313, 314; WISER V. LAWLER, SUPRA AT 264;
OESTING V. UNITED STATES, 234 F. 304, 307.  PEOPLE HAVE A RIGHT TO
ASSUME THAT FRAUDULENT ADVERTISING TRAPS WILL NOT BE LAID TO ENSNARE
THEM.  "LAWS ARE MADE TO PROTECT THE TRUSTING AS WELL AS THE
SUSPICIOUS."  FEDERAL TRADE COMM'N V. STANDARD EDUCATION SOCIETY, 302
U.S. 112, 116. 

THE POSTMASTER GENERAL FOUND THAT RESPONDENTS' ADVERTISEMENTS HAD
BEEN DELIBERATELY CONTRIVED TO DIVERT READERS' ATTENTION FROM MATERIAL
BUT ADROITLY OBSCURED FACTS.  THAT FINDING HAS SUBSTANTIAL SUPPORT IN
THE EVIDENCE.  THE DISTRICT COURT AND THE COURT OF APPEALS WERE WRONG
IN HOLDING THE EVIDENCE INSUFFICIENT. 

THIRD.  IT IS CONTENDED THAT SECS. 259 AND 732 OF 39 U.S.C., THE
VARIOUS CONSTITUTIONAL PROVISIONS AND THAT THE STATUTES SHOULD BE HELD
UNENFORCEABLE FOR THIS REASON.  SPECIFICALLY, IT IS ARGUED THAT THE
AMENDMENT; AUTHORIZE UNREASONABLE SEARCHES AND SEIZURES IN VIOLATION OF
THE FOURTH AMENDMENT; VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT; DENY THE KIND OF TRIAL GUARANTEED IN CRIMINAL PROCEEDINGS BY
THE SIXTH AMENDMENT AND BY ART. III, SEC. 2, CL. 3; AND INFLICT UNUSUAL
PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT. 

IN 1872 CONGRESS FIRST AUTHORIZED THE POSTMASTER GENERAL TO FORBID
DELIVERY OF REGISTERED LETTERS AND PAYMENT OF MONEY ORDERS TO PERSONS
OR COMPANIES FOUND BY THE POSTMASTER GENERAL TO BE CONDUCTING AN
ENTERPRISE TO OBTAIN MONEY BY FALSE PRETENSES THROUGH THE USE OF THE
MAILS.  17 STAT. 322-323, 39 U.S.C. SEC. 732.  IN THE SAME STATUTE
CONGRESS MADE IT A CRIME TO PLACE LETTERS, CIRCULARS, ADVERTISEMENTS,
ETC., IN THE MAILS FOR THE PURPOSE OF CARRYING OUT SUCH FRAUDULENT
ARTIFICES OR SCHEMES.  17 STAT. 323, 18 U.S.C. SEC. 338.  IN 1889
CONGRESS DECLARED "NON-MAILABLE" LETTERS AND OTHER MATTER SENT TO HELP
PERPETRATE FRAUDS.  25 STAT. 874, 39 U.S.C. SEC. 256.  IN 1895 THE
POSTMASTER GENERAL'S FRAUD ORDER POWERS WERE EXTENDED TO COVER ALL
LETTERS OR OTHER MATTER SENT BY MAIL.  28 STAT. 964, 39 U.S.C. SEC.
259.  AND CONGRESS HAS PASSED MANY MORE STATUTES, SUCH, FOR
ILLUSTRATION, AS THE SECURITIES AND EXCHANGE ACT, 48 STAT. 77, 906, 15
U.S.C. SEC. 77(E), AND THE FEDERAL TRADE COMMISSION ACT AS AMENDED, 52
STAT. 114, 15 U.S.C. SEC. 52, TO PROTECT PEOPLE AGAINST FRAUDULENT USE
OF THE MAILS. 

ALL OF THE FOREGOING STATUTES, AND OTHERS WHICH NEED NOT BE REFERRED
TO SPECIFICALLY, MANIFEST A PURPOSE OF CONGRESS TO UTILIZE ITS POWERS,
PARTICULARLY OVER THE MAILS AND IN INTERSTATE COMMERCE, TO PROTECT
PEOPLE AGAINST FRAUD.  THIS GOVERNMENTAL POWER HAS ALWAYS BEEN
RECOGNIZED IN THIS COUNTRY AND IS FIRMLY ESTABLISHED.  THE PARTICULAR
STATUTES HERE ATTACKED HAVE BEEN REGULARLY ENFORCED BY THE EXECUTIVE
OFFICERS AND THE COURTS FOR MORE THAN HALF A CENTURY.  THEY ARE NOW
PART AND PARCEL OF OUR GOVERNMENTAL FABRIC.  THIS COURT IN 1904, IN THE
CASE OF PUBLIC CLEARING HOUSE V. COYNE, 194 U.S. 497, SUSTAINED THE
CONSTITUTIONAL POWER OF CONGRESS TO ENACT THE LAWS.  THE DECISION THERE
REJECTED ALL THE CONTENTIONS NOW URGED AGAINST THE VALIDITY OF THE
STATUTES IN THEIR ENTIRETY, INSOFAR AS THE PRESENT CONTENTIONS HAVE ANY
POSSIBLE MERIT.  NO DECISION OF THIS COURT EITHER BEFORE OR AFTER THE
COYNE CASE HAS QUESTIONED THE POWER OF CONGRESS TO PASS THESE LAWS. 
THE COYNE CASE HAS BEEN CITED WITH APPROVAL MANY TIMES. 

RECOGNIZING THAT PAST DECISIONS OF THIS COURT IF ADHERED TO PRECLUDE
ACCEPTANCE OF THEIR CONTENTIONS, RESPONDENTS URGE THAT CERTAIN OF OUR
DECISIONS SINCE THE COYNE CASE HAVE PARTIALLY UNDERMINED THE PHILOSOPHY
ON WHICH IT RESTED.  RESPONDENTS REFER PARTICULARLY TO COMPARATIVELY
RECENT DECISIONS UNDER THE FIRST AND FOURTEENTH AMENDMENTS NONE OF THE
RECENT CASES TO WHICH RESPONDENTS REFER, HOWEVER, PROVIDE THE SLIGHTEST
SUPPORT FOR A CONTENTION THAT THE CONSTITUTIONAL GUARANTEES OF FREEDOM
OF SPEECH AND FREEDOM OF THE PRESS INCLUDE COMPLETE FREEDOM,
UNCONTROLLABLE BY CONGRESS, TO USE THE MAILS FOR PERPETRATION OF
SWINDLING SCHEMES. 

WE REJECT THE CONTENTION THAT WE SHOULD OVERRULE THE COYNE CASE AND
DECLARE THESE FRAUD ORDER STATUTES TO BE WHOLLY VOID AND
UNENFORCEABLE. 

AN ADDITIONAL ARGUMENT URGED BY RESPONDENTS IS THAT THE FRAUD ORDER
STATUTES AS INTERPRETED AND APPLIED BY THE POSTMASTER GENERAL IN THIS
CASE VIOLATE SOME OF THE CONSTITUTIONAL PROVISIONS ABOVE MENTIONED.  WE
CONSIDER THIS SUGGESTION ONLY IN CONNECTION WITH THE MODIFIED ORDER. 
ITS FUTURE EFFECT IS MERELY TO ENJOIN THE CONTINUATION OF CONDUCT FOUND
FRAUDULENT.  CARRIED NO FURTHER THAN THIS, THE ORDER HAS NOT EVEN A
SLIGHT RESEMBLANCE TO PUNISHMENT - IT ONLY KEEPS RESPONDENTS FROM
GETTING THE MONEY OF OTHERS BY FALSE PRETENSES AND DEPRIVES THEM OF A
RIGHT TO SPEAK OR PRINT ONLY TO THE EXTENT NECESSARY TO PROTECT OTHERS
FROM THEIR FRAUDULENT ARTIFICES.  AND SO FAR AS THE IMPOUNDING ORDER IS
CONCERNED, OF COURSE RESPONDENTS CAN HAVE NO JUST OR LEGAL CLAIM TO
MONEY MAILED TO THEM AS A RESULT OF THEIR FRAUDULENT PRACTICES.  NOR
DOES THE MODIFIED ORDER JEOPARDIZE RESPONDENTS' MAGAZINE EXCEPT TO THE
EXTENT, IF ANY, THAT ITS CIRCULATION MIGHT BE DEPENDENT ON MONIES
RECEIVED FROM THIS CONTEST SCHEME FOUND FRAUDULENT.  A CONTENTION
CANNOT BE SERIOUSLY CONSIDERED WHICH ASSUMES THAT FREEDOM OF THE PRESS
INCLUDES A RIGHT TO RAISE MONEY TO PROMOTE CIRCULATION BY DECEPTION OF
THE PUBLIC. 

THE ORDER AS MODIFIED IS VALID AND ITS ENFORCEMENT SHOULD NOT HAVE
BEEN ENJOINED.  THE JUDGMENTS OF THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA AND OF THE DISTRICT COURT ARE REVERSED.  THE
CAUSE IS REMANDED TO THE DISTRICT COURT TO DISMISS THE PETITION FOR
INJUNCTION AND TO PROVIDE FOR PROPER RETURN TO THE REMITTERS OF THE
IMPOUNDED FUNDS SENT IN RESPONSE TO THE FRAUDULENT ADVERTISEMENTS AND
COMMUNICATIONS.  IT IS SO ORDERED. 

FN1  "THIS CASE IS ORDERED RESTORED TO THE DOCKET FOR REARGUMENT.  ON
REARGUMENT COUNSEL NEED NOT FURTHER DISCUSS THE SUFFICIENCY OF THE
EVIDENCE TO SUPPORT THE POSTMASTER GENERAL'S FINDINGS.  THEY ARE
REQUESTED TO DISCUSS THE FOLLOWING: 

"1.  DOES THE FRAUD ORDER PROHIBIT DELIVERY OF MAIL AND POSTAL MONEY
ORDERS TO FACTS MAGAZINE AND ALL ITS EMPLOYEES, INCLUDING ITS EDITOR-IN
CHIEF?  IF SO, 

"(A)  IS THE ORDER WITHIN THE POSTMASTER GENERAL'S AUTHORITY UNDER 39
U.S.C. SECS. 259, 732? 

"(B)  IF SO, DO THESE CODE PROVISIONS, IN VIOLATION OF THE FIRST
AMENDMENT OR ANY OTHER CONSTITUTIONAL PROVISIONS, ABRIDGE THE FREEDOM
OF SPEECH OR PRESS OF EITHER THE SENDERS OR THE SENDEES OF THE MAIL OR
THE MONEY ORDERS? 

"2. DOES THE FRAUD ORDER PROHIBIT INDEFINITELY THE DELIVERY OF MAIL
OR MONEY ORDERS WHICH RELATE TO SUBJECT MATTERS OR CONTESTS OTHER THAN
THE CONTEST ON WHICH THE ORDER IS BASED?  IF SO, 

"(A)  IS THE ORDER WITHIN THE POSTMASTER GENERAL'S STATUTORY
AUTHORITY? 

"(B)  IF SO, ARE THESE CODE PROVISIONS IN CONFLICT WITH THE
CONSTITUTION OF THE UNITED STATES? 

"3.  ASSUMING THAT THE ORDER IS IN CONFLICT WITH THE CODE PROVISIONS
OR THE CONSTITUTION, CAN IT BE MODIFIED IN SUCH WAY AS TO FREE IT FROM
STATUTORY OR CONSTITUTIONAL OBJECTIONS?  IF SO, BY WHOM CAN THE ORDER
BE MODIFIED AND BY WHAT PROCEDURE?" 

FN2  GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 245-249; NEAR V.
MINNESOTA, 283 U.S. 697, 713, ET SEQ.; BRIDGES V. CALIFORNIA, 314 U.S.
252, 260-263; CRAIG V. HARNEY, 331 U.S. 367; MILWAUKEE PUBLISHING CO.
V. BURLESON, 255 U.S. 407. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

THE TWO LOWER COURTS REVIEWED IN DETAIL THE FACTS IN THIS CASE.  BOTH
HELD THAT THE PREDECESSOR OF THE PRESENT POSTMASTER GENERAL EXCEEDED
HIS AUTHORITY IN ISSUING HIS STRINGENT ORDER OF OCTOBER 1, 1945.  THE
MODIFICATION OF THAT ORDER ON DECEMBER 8, 1947, BY THE PRESENT
POSTMASTER GENERAL, THEN SERVING AS ACTING POSTMASTER GENERAL, HAS
RESTRICTED IT TO APPROPRIATE PARTIES.  IT HAS NOT ALTERED, HOWEVER, THE
PRIMARY BASIS FOR THE LOWER COURT'S INJUNCTION OF NOVEMBER 27, 1945,
AGAINST THE ENFORCEMENT OF THE ORDER.  THAT INJUNCTION WAS GRANTED
BECAUSE THE RECORD FAILED TO SHOW EVIDENCE SUFFICIENT TO JUSTIFY THE
DRASTIC ADMINISTRATIVE ACTION TAKEN IN RELIANCE UPON THE LOTTERY AND
FRAUD SECTIONS OF THE MAIL AND MONEY ORDER STATUTES.  R.S. SECS. 3929
AND 4041, AS AMENDED, 26 STAT. 466, 28 STAT. 964; 39 U.S.C. SECS. 259
AND 732.  THIS DISSENT PROTESTS THE OVERRULING OF THE CONCLUSIONS OF
THE LOWER COURTS ON THIS ISSUE AND SEEKS ESPECIALLY TO DISCOURAGE ANY
INCREASE, OR EVEN REPETITION, OF THE DEGREE OF CENSORSHIP EVIDENCED BY
THIS ORDER. 

THE FORMER POSTMASTER GENERAL APPLIED HERE THE DRASTIC SUMMARY POLICE
POWERS ENTRUSTED TO HIS OFFICE BY CONGRESS TO DEAL WITH FRAUDULENT
SWINDLERS USING THE MAIL IN THE CONDUCT OF LOTTERIES OR ANY OTHER
SCHEME FOR OBTAINING MONEY BY FALSE OR FRAUDULENT PRETENSES.  NO CHARGE
OF A LOTTERY OR SCHEME OF CHANCE WAS MADE THE BASIS FOR THE ORDER
BEFORE US.  THIS PARTICULAR PUZZLE AND LETTER-WRITING CONTEST, TO WHICH
THE ORDER WAS LIMITED, WAS A CONTEST OF THE FAMILIAR TYPE WHICH OFFERS
PRIZES AND THEREBY SEEKS TO ATTRACT PROSPECTS FOR LATER SALES.  THE
SPONSOR CANDIDLY STATED THAT THIS CONTEST WAS CONDUCTED FOR ADVERTISING
PURPOSES AND IT DISTRIBUTED TO THE CONTESTANTS SAMPLES FROM A SERIES OF
BOOKS PUBLISHED BY ITS SUBSIDIARY, LITERARY CLASSICS, INC. THE ENTRANCE
FEES OF 15 CENTS, REQUIRED TO ACCOMPANY THE RESPECTIVE SETS OF PUZZLE
SOLUTIONS, MIGHT WELL ADD UP TO MORE THAN ALL THE EXPENSES OF THE
PROGRAM, INCLUDING THE SUBSTANTIAL PRIZES, PROVIDED THE RESPONSES WERE
MANY.  SUCH FEES, HOWEVER, WOULD FAIL TO MEET THOSE EXPENSES IF THE
RESPONSES WERE FEW.  THE FINANCIAL SUCCESS OF THE CONTEST DEPENDED UPON
THE NUMBER OF VOLUNTEERS CHOOSING TO ENTER IT. 

THE DISTRICT COURT FOUND: 

"THESE CONSIDERATIONS,  ...  , DO NOT JUSTIFY AN INFERENCE OF FRAUD. 
UNDER NO CIRCUMSTANCES, THEREFORE, CAN THE PUZZLE CONTEST AND ITS
DESCRIPTIVE LITERATURE BE CONSIDERED A FRAUDULENT DEVICE OR STRATEGEM
(STRATAGEM) FOR OBTAINING MONEY.  THE CONCLUSION IS INEVITABLE THAT
THERE IS NO EVIDENCE TO SUPPORT THE FINDING OF FACT ON WHICH THE FRAUD
ORDER IS BASED AND THAT, THEREFORE, THE PLAINTIFF IS ENTITLED TO A
PERMANENT INJUNCTION AGAINST THE ENFORCEMENT OF THE ORDER."  READ
MAGAZINE V. HANNEGAN, 63 F.SUPP.  318, 322. 

THE COURT OF APPEALS FOUND: 

"APPELLANT DOES NOT CLAIM THAT ANY STATEMENT IN THE ADVERTISEMENTS
WAS UNTRUE OR THAT THERE WAS ANY DEPARTURE FROM THE PROCEDURE ANNOUNCED
IN THE OFFICIAL RULES OF THE CONTEST.  THERE IS NO CLAIM BY HIM THAT
THE JUDGING OF THE LETTERS WAS TO BE OTHER THAN BONA FIDE, OR THAT ANY
CONTESTANT FAILED TO RECEIVE THE PROMISED BOOKS.  NO CONTESTANT, SO FAR
AS THE RECORD SHOWS, COMPLAINED OF BEING MISLED OR DEFRAUDED.  IN OTHER
WORDS, THE FRAUD ORDER IS NOT PREMISED UPON SPECIFIC OR AFFIRMATIVE
MISSTATEMENTS, OR UPON FAILURE TO PERFORM AS PROMISED, BUT IS PREMISED
UPON AN IMPRESSION WHICH APPELLANT SAYS IS CONVEYED BY THE
ADVERTISEMENTS AS A WHOLE.  HE DERIVES THE IMPRESSION FROM THE
HEADLINES IN THE ADVERTISEMENTS AND THE COMPARATIVE URGENCY WHICH HE
FINDS IN SOME OF THE EXPRESSIONS IN THEM. 

     .         .         .         .     . 

"TO SUPPORT APPELLANT'S CONCLUSION IN THIS CASE, ONE MUST ASCRIBE TO
THE ADVERTISEMENTS AN IMPRESSION DIRECTLY CONTRARY TO THE STATED RULES
OF THE CONTEST.  ONE MUST THUS ASSUME THAT READERS WERE LED NOT TO READ
THE RULES, OR WERE LED TO IGNORE THEM OR TO MISUNDERSTAND THEM OR TO
BELIEVE SOMETHING ELSE CONTRARY TO THEIR STATEMENT.  THERE IS NO
EVIDENCE, WE THINK, TO SUPPORT ANY OF THOSE ASSUMPTIONS.  THE RULES
WERE LEGIBLY PRINTED.  THEY WERE EMPHASIZED, RATHER THAN MINIMIZED, IN
THE TEXT.  THEY WERE CLEAR TO ANY REASONABLE MIND.  NO CONTRADICTORY
EXPRESSIONS OCCURRED ELSEWHERE. 

"THAT THIS CONTEST WAS AN ADVERTISING DEVICE DESIGNED TO PROMOTE THE
BOOK-PUBLISHING BUSINESS OF APPELLEES MUST HAVE BEEN PLAIN TO THE MOST
CASUAL READER.  THE ADVERTISEMENTS SPECIFICALLY TOLD HIM, 'THIS CONTEST
WITH FACTS MAGAZINE AS SPONSOR, IS BEING PRESENTED AS A MEANS OF
POPULARIZING THE LITERARY CLASSICS BOOK CLUB.'  ... 

"WE FAIL TO SEE THAT THE LETTERS WHICH WERE WRITTEN TO THE
CONTESTANTS WHO SUCCESSFULLY SOLVED THE FIRST SERIES OF PUZZLES, CAST
ANY COMPLEXION UPON THE VENTURE DIFFERENT FROM THAT CAST BY THE
ORIGINAL ADVERTISEMENTS THEMSELVES. 

     .         .         .       .         . 

"WE THINK THAT THE ADVERTISEMENTS BEFORE US FAIRLY URGED CONTESTANTS
TO READ THE RULES AND THAT THE RULES STATED FAIRLY, IN STYLE OF TYPE,
PLACEMENT, AND TERMS, WHAT WAS PROPOSED.  THAT BEING SO, AND THERE
BEING NO AMBIGUITY IN OR DEPARTURE FROM THE PROPOSALS STATED, A FINDING
OF FALSE PRETENSES, REPRESENTATIONS, OR PROMISES COULD NOT PROPERLY BE
MADE."  HANNEGAN V. READ MAGAZINE, 81 U.S. APP. D.C. 339, 341-343, 158
F.2D 542, 544, 545-546. 

NOT ONLY DO I FAIL TO FIND ADEQUATE REASON TO OVERRULE THE FINDINGS
AND CONCLUSIONS OF THE TWO LOWER COURTS BUT, ON EXAMINATION OF THE
RECORD, I AGREE WITH THEM.  I BELIEVE THAT THE POSTMASTER GENERAL
EXCEEDED HIS AUTHORITY WHEN HE APPLIED HIS DRASTIC CENSORSHIP AND FRAUD
ORDER TO THIS PARTICULAR PROGRAM.  THERE WAS NO COMPULSION ON ANYONE TO
ENTER THIS CONTEST.  EVERYONE WHO DID SO RECEIVED, AS ADVERTISED,
CERTAIN REPRINTS OF CLASSICAL LITERATURE AND, UNTIL THE CONTEST WAS
STOPPED, EACH CONTESTANT HAD THE ADVERTISED OPPORTUNITY TO WIN CERTAIN
CASH PRIZES. 

ANYONE WHO ENTERED THIS CONTEST TO WIN SUBSTANTIAL PRIZES BY DOING SO
LITTLE TO WIN THEM SHOULD AT LEAST EXAMINE THE EXACT TERMS OF THE
CONTEST AND MAKE HIMSELF RESPONSIBLE FOR MEETING THE RULES PRESCRIBED
BY THOSE OFFERING TO MAKE THE GIFTS HE SOUGHT.  THE CONTESTANTS
RENDERED NO SERVICES FOR WHICH THEY HAD A RIGHT TO COMPENSATION.  THEY
MERELY PAID A SMALL ENTRANCE FEE.  FOR THAT THEY WERE ENTITLED TO HAVE
THE CONTEST CONDUCTED IN ACCORDANCE WITH THE RULES STATED. 

THE FINDINGS OF THE LOWER COURTS MAKE IT CLEAR THAT THERE HAS BEEN NO
CLAIM OF FAILURE OR IMPENDING FAILURE BY THE SPONSOR TO CARRY OUT THE
TERMS OF THE CONTEST.  THE RECORD SHOWS NO COMPLAINT FROM ANY
CONTESTANT.  NEVERTHELESS, THE POSTMASTER GENERAL TOOK IT UPON HIMSELF
TO STOP THE CONTEST.  ON THE EVIDENCE BEFORE HIM AND BEFORE THE COURTS,
THIS WAS AN ABUSE OF HIS DISCRETION.  IT WAS "PALPABLY WRONG AND
THEREFORE ARBITRARY."  SEE LEACH V. CARLILE, 258 U.S. 138, 140. 
..END :



















COLE V. ARKANSAS, 333 U.S. 196 


NO. 373.  ARGUED FEBRUARY 4-5, 1948.  - DECIDED MARCH 8, 1948.  - 211
ARK. 836, 202 S.W.2D 770, REVERSED. 


PETITIONERS WERE TRIED IN A STATE COURT UNDER AN INFORMATION CHARGING
THEM ONLY WITH A VIOLATION OF SEC. 2 OF A STATE STATUTE, MAKING IT AN
OFFENSE TO PROMOTE AN UNLAWFUL ASSEMBLAGE.  THE TRIAL COURT INSTRUCTED
THE JURY THAT THEY WERE CHARGED WITH AN OFFENSE UNDER SEC. 2; AND THEY
WERE CONVICTED.  THEY APPEALED TO THE STATE SUPREME COURT, CONTENDING,
INTER ALIA, THAT SEC. 2 WAS CONTRARY TO THE FEDERAL CONSTITUTION. 
WITHOUT PASSING ON THAT QUESTION, THE STATE SUPREME COURT SUSTAINED
THEIR CONVICTIONS ON THE GROUND THAT THE INFORMATION CHARGED AND THE
EVIDENCE SHOWED THAT PETITIONERS HAD VIOLATED SEC. 1 OF THE SAME
STATUTE, WHICH DESCRIBES THE DISTINCT OFFENSE OF USING FORCE AND
VIOLENCE.  HELD:  PETITIONERS WERE DENIED DUE PROCESS OF LAW AND THE
JUDGMENT IS REVERSED AND REMANDED TO THE STATE SUPREME COURT FOR
FURTHER PROCEEDINGS.  PP. 197-202. 

(A)  IT IS AS MUCH A VIOLATION OF DUE PROCESS TO SEND AN ACCUSED TO
PRISON FOLLOWING A CONVICTION OF A CHARGE ON WHICH HE WAS NEVER TRIED
AS IT WOULD BE TO CONVICT HIM UPON A CHARGE THAT WAS NEVER MADE.  P.
201. 

(B)  TO CONFORM TO DUE PROCESS OF LAW, PETITIONERS WERE ENTITLED TO
HAVE THE VALIDITY OF THEIR CONVICTIONS APPRAISED ON CONSIDERATION OF
THE CASE AS IT WAS TRIED AND AS THE ISSUES WERE DETERMINED IN THE TRIAL
COURT.  P. 202. 

COLE ET AL. V. ARKANSAS. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

PETITIONERS WERE TRIED AND CONVICTED OF A VIOLATION OF SEC. 2 OF A
STATE STATUTE.  THEIR CONVICTIONS WERE AFFIRMED BY THE SUPREME COURT OF
ARKANSAS ON THE GROUND THAT THEY HAD VIOLATED SEC. 1, DESCRIBING A
SEPARATE AND DISTINCT OFFENSE.  211 ARK. 836, 202 S.W.2D 770.  THIS
COURT GRANTED CERTIORARI.  332 U.S. 834.  REVERSED AND REMANDED, P.
202. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE CONVICTED OF A FELONY IN AN ARKANSAS STATE COURT
AND SENTENCED TO SERVE ONE YEAR IN THE STATE PENITENTIARY.  THE STATE
SUPREME COURT AFFIRMED, ONE JUDGE DISSENTING ON THE GROUND THAT THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTIONS.  211 ARK. 836,
202 S.W.2D 770.  A PETITION FOR CERTIORARI HERE ALLEGED DEPRIVATION OF
IMPORTANT RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT.  WE GRANTED
CERTIORARI BECAUSE THE RECORD INDICATED THAT AT LEAST ONE OF THE
QUESTIONS PRESENTED WAS SUBSTANTIAL.  THAT QUESTION, IN THE PRESENT
STATE OF THE RECORD, IS THE ONLY ONE WE FIND IT APPROPRIATE TO
CONSIDER.  THE QUESTION IS:  "WERE THE PETITIONERS DENIED DUE PROCESS
OF LAW  ...  IN VIOLATION OF THE FOURTEENTH AMENDMENT BY THE
CIRCUMSTANCE THAT THEIR CONVICTIONS WERE AFFIRMED UNDER A CRIMINAL
STATUTE FOR VIOLATION OF WHICH THEY HAD NOT BEEN CHARGED?" 

THE PRESENT CONVICTIONS ARE UNDER AN INFORMATION.  THE PETITIONERS
URGE THAT THE INFORMATION CHARGED THEM WITH A VIOLATION OF SEC. 2 OF
ACT 193 OF THE 1943 ARKANSAS LEGISLATURE AND THAT THEY WERE TRIED AND
CONVICTED OF VIOLATING ONLY SEC. 2.  THE STATE SUPREME COURT AFFIRMED
THEIR CONVICTIONS ON THE GROUND THAT THE INFORMATION HAD CHARGED AND
THE EVIDENCE HAD SHOWN THAT THE PETITIONERS HAD VIOLATED SEC. 1 OF THE
ARKANSAS ACT WHICH DESCRIBES AN OFFENSE SEPARATE AND DISTINCT FROM THE
OFFENSE DESCRIBED IN SEC. 2. 

THE INFORMATION CHARGED: 

"  ...  WALTER TED CAMPBELL, ACTING IN CONCERT WITH OTHER PERSONS,
ASSEMBLED AT THE SOUTHERN COTTON OIL COMPANY'S PLANT IN PULASKI COUNTY,
ARKANSAS, WHERE A LABOR DISPUTE EXISTED, AND BY FORCE AND VIOLENCE
PREVENTED OTHA WILLIAMS FROM ENGAGING IN A LAWFUL VOCATION.  THE SAID
ROY COLE, LOUIS JONES AND JESSIE BEAN,  FN1  IN THE COUNTY AND STATE
AFORESAID, ON THE 26TH DAY OF DECEMBER, 1945, DID UNLAWFULLY AND
FELONIOUSLY, ACTING IN CONCERT WITH EATH N OTHER, PROMOTE, ENCOURAGE
AND AID SUCH UNLAWFUL ASSEMBLAGE, AGAINST THE PEACE AND DIGNITY OF THE
STATE OF ARKANSAS." 

THE FOREGOING LANGUAGE DESCRIBING THE OFFENSE CHARGED IN THE
INFORMATION IS SUBSTANTIALLY IDENTICAL WITH THE FOLLOWING LANGUAGE OF
SEC. 2 OF THE ARKANSAS ACT.  THAT SECTION PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON ACTING IN CONCERT WITH ONE OR
MORE OTHER PERSONS, TO ASSEMBLE AT OR NEAR ANY PLACE WHERE A 'LABOR
DISPUTE' EXISTS AND BY FORCE OR VIOLENCE PREVENT ...  ANY PERSON FROM
ENGAGING IN ANY LAWFUL VOCATION, OR FOR ANY PERSON ACTING  ...  IN
CONCERT WITH ONE OR MORE OTHER PERSONS, TO PROMOTE, ENCOURAGE OR AID
ANY SUCH UNLAWFUL ASSEMBLAGE." 

THE RECORD INDICATES THAT AT THE REQUEST OF THE PROSE-CUTING
ATTORNEY, THE TRIAL JUDGE READ SEC. 2 TO THE JURY.  HE THEN INSTRUCTED
THEM THAT SEC. 2 "INCLUDES TWO OFFENSES, FIRST, THE CONCERT OF ACTION
BETWEEN TWO OR MORE PERSONS RESULTING IN THE PREVENTION OF A PERSON BY
MEANS OF FORCE AND VIOLENCE FROM ENGAGING IN A LAWFUL VOCATION.  AND,
SECOND, IN PROMOTING, ENCOURAGING OR AIDING OF SUCH UNLAWFUL ASSEMBLAGE
BY CONCERT OF ACTION AMONG THE DEFENDANTS AS IS CHARGED IN THE
INFORMATION HERE.  THE LATTER OFFENSE IS THE ONE ON TRIAL IN THIS
CASE." 

THE TRIAL COURT ALSO INSTRUCTED THE JURY THAT THEY COULD NOT CONVICT
PETITIONERS UNLESS "CONVINCED BEYOND A REASONABLE DOUBT THAT THEY
PROMOTED, ENCOURAGED, AND AIDED IN AN UNLAWFUL ASSEMBLAGE AT THE PLANT
OF THE SOUTHERN COTTON OIL COMPANY, FOR THE PURPOSE OF PREVENTING OTHA
WILLIAMS FROM ENGAGING IN A LAWFUL VOCATION."  THIS INSTRUCTION, LIKE
THE PRECEDING ONE, TOLD THE JURY THAT THE TRIAL OF PETITIONERS WAS FOR
VIOLATION OF SEC. 2, SINCE SEC. 2 MAKES AN UNLAWFUL ASSEMBLAGE AN
INGREDIENT OF THE OFFENSE IT DEFINES AND SEC. 1  FN2  DOES NOT.  THUS
THE PETITIONERS WERE CLEARLY TRIED AND CONVICTED BY THE JURY FOR
PROMOTING AN UNLAWFUL ASSEMBLAGE MADE AN OFFENSE BY SEC. 2, AND WERE
NOT TRIED FOR THE OFFENSE OF USING FORCE AND VIOLENCE AS DESCRIBED IN
SEC. 1.  FN3 

WHEN THE CASE REACHED THE STATE SUPREME COURT ON APPEAL, THAT COURT
RECOGNIZED THAT THE INFORMATION AS DRAWN DID INCLUDE A CHARGE THAT
PETITIONERS VIOLATED SEC. 2 OF THE ACT.  THAT COURT ALSO HELD THAT THE
INFORMATION ACCUSED PETITIONERS OF "USING FORCE AND VIOLENCE TO PREVENT
WILLIAMS FROM WORKING," AND THAT THE "USE OF FORCE OR VIOLENCE, OR
THREAT OF THE USE OF FORCE OR VIOLENCE, IS MADE UNLAWFUL BY SEC. 1." 
FOR THIS REASON THE SUPREME COURT SAID THAT IT AFFIRMED THE CONVICTIONS
OF THE PETITIONERS "WITHOUT INVOKING ANY PART OF SEC. 2 OF THE ACT  ...
"  THAT COURT ACCORDINGLY REFUSED TO PASS UPON PETITIONERS' FEDERAL
CONSTITUTIONAL CHALLENGES TO SEC. 2.  IT LATER DENIED A PETITION FOR
REHEARING IN WHICH PETITIONERS ARGUED:  "TO SUSTAIN A CONVICTION ON
GROUNDS NOT CHARGED IN THE INFORMATION AND WHICH THE JURY HAD NO
OPPORTUNITY TO PASS UPON, DEPRIVES THE DEFENDANTS OF A FAIR TRIAL AND A
TRIAL BY JURY, AND DENIES THE DEFENDANTS THAT DUE PROCESS OF LAW
GUARANTEED BY THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION." 

WE THEREFORE HAVE THIS SITUATION.  THE PETITIONERS READ THE
INFORMATION AS CHARGING THEM WITH AN OFFENSE UNDER SEC. 2 OF THE ACT,
THE LANGUAGE OF WHICH THE INFORMATION HAD USED.  THE TRIAL JUDGE
CONSTRUED THE INFORMATION AS CHARGING AN OFFENSE UNDER SEC. 2.  HE
INSTRUCTED THE JURY TO THAT EFFECT.  HE CHARGED THE JURY THAT
PETITIONERS WERE ON TRIAL FOR THE OFFENSE OF PROMOTING AN UNLAWFUL
ASSEMBLAGE, NOT FOR THE OFFENSE "OF USING FORCE AND VIOLENCE."  WITHOUT
COMPLETELY IGNORING THE JUDGE'S CHARGE, THE JURY COULD NOT HAVE
CONVICTED PETITIONERS FOR HAVING COMMITTED THE SEPARATE, DISTINCT, AND
SUBSTANTIALLY DIFFERENT OFFENSE DEFINED IN SEC. 1.  FN4  YET THE STATE
SUPREME COURT REFUSED TO CONSIDER THE VALIDITY OF THE CONVICTIONS UNDER
SEC. 2, FOR VIOLATION OF WHICH PETITIONERS WERE TRIED AND CONVICTED. 
IT AFFIRMED THEIR CONVICTIONS AS THOUGH THEY HAD BEEN TRIED FOR
VIOLATING SEC. 1, AN OFFENSE FOR WHICH THEY WERE NEITHER TRIED NOR
CONVICTED. 

NO PRINCIPLE OF PROCEDURAL DUE PROCESS IS MORE CLEARLY ESTABLISHED
THAN THAT NOTICE OF THE SPECIFIC CHARGE, AND A CHANCE TO BE HEARD IN A
TRIAL OF THE ISSUES RAISED BY THAT CHARGE, IF DESIRED, ARE AMONG THE
CONSTITUTIONAL RIGHTS OF EVERY ACCUSED IN A CRIMINAL PROCEEDING IN ALL
COURTS, STATE OR FEDERAL.  IN RE OLIVER, 333 U.S. 257, 273, DECIDED
TODAY, AND CASES THERE CITED.  IF, AS THE STATE SUPREME COURT HELD,
PETITIONERS WERE CHARGED WITH A VIOLATION OF SEC. 1, IT IS DOUBTFUL
BOTH THAT THE INFORMATION FAIRLY INFORMED THEM OF THAT CHARGE AND THAT
THEY SOUGHT TO DEFEND THEMSELVES AGAINST SUCH A CHARGE; IT IS CERTAIN
THAT THEY WERE NOT TRIED FOR OR FOUND GUILTY OF IT.  IT IS AS MUCH A
VIOLATION OF DUE PROCESS TO SEND AN ACCUSED TO PRISON FOLLOWING
CONVICTION OF A CHARGE ON WHICH HE WAS NEVER TRIED AS IT WOULD BE TO
CONVICT HIM UPON A CHARGE THAT WAS NEVER MADE.  DE JONGE V. OREGON, 299
U.S. 353, 362. 

FURTHERMORE, SINCE ARKANSAS PROVIDES FOR AN APPEAL TO THE STATE
SUPREME COURT AND ON THAT APPEAL CONSIDERS QUESTIONS RAISED UNDER THE
FEDERAL CONSTITUTION, THE PROCEEDINGS IN THAT COURT ARE A PART OF THE
PROCESS OF LAW UNDER WHICH THE PETITIONERS' CONVICTIONS MUST STAND OR
FALL.  FRANK V. MANGUM, 237 U.S. 309, 327.  CF. MOONEY V. HOLOHAN, 294
U.S. 103, 113.  THAT COURT HAS NOT AFFIRMED THESE CONVICTIONS ON THE
BASIS OF THE TRIAL PETITIONERS WERE AFFORDED.  THE CONVICTIONS WERE FOR
A VIOLATION OF SEC. 2.  PETITIONERS URGED IN THE STATE SUPREME COURT
THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THEIR CONVICTIONS OF A
VIOLATION OF SEC. 2.  THEY ALSO RAISED SERIOUS OBJECTIONS TO THE
VALIDITY OF THAT SECTION UNDER THE FOURTEENTH AMENDMENT TO THE FEDERAL
CONSTITUTION.  FN5  NONE OF THEIR CONTENTIONS WERE PASSED UPON BY THE
STATE SUPREME COURT.  IT AFFIRMED THEIR CONVICTIONS AS THOUGH THEY HAD
BEEN TRIED AND CONVICTED OF A VIOLATION OF SEC. 1 WHEN IN TRUTH THEY
HAD BEEN TRIED AND CONVICTED ONLY OF A VIOLATION OF A SINGLE OFFENSE
CHARGED IN SEC. 2, AN OFFENSE WHICH IS DISTINCTLY AND SUBSTANTIALLY
DIFFERENT FROM THE OFFENSE CHARGED IN SEC. 1.  TO CONFORM TO DUE
PROCESS OF LAW, PETITIONERS WERE ENTITLED TO HAVE THE VALIDITY OF THEIR
CONVICTIONS APPRAISED ON CONSIDERATION OF THE CASE AS IT WAS TRIED AND
AS THE ISSUES WERE DETERMINED IN THE TRIAL COURT. 

WE ARE CONSTRAINED TO HOLD THAT THE PETITIONERS HAVE BEEN DENIED
SAFEGUARDS GUARANTEED BY DUE PROCESS OF LAW - SAFEGUARDS ESSENTIAL TO
LIBERTY IN A GOVERNMENT DEDICATED TO JUSTICE UNDER LAW. 

IN THE PRESENT STATE OF THE RECORD WE CANNOT PASS UPON THOSE
CONTENTIONS WHICH CHALLENGE THE VALIDITY OF SEC. 2 OF THE ARKANSAS
ACT.  THE JUDGMENT IS REVERSED AND REMANDED TO THE STATE SUPREME COURT
FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  THE STATE SUPREME COURT HELD THAT BEAN'S CONVICTION WAS BASED ON
INSUFFICIENT EVIDENCE, REVERSED HIS CONVICTION, AND DIRECTED THAT THE
CAUSE BE DISMISSED AS TO HIM. 

FN2  "SECTION 1.  IT SHALL BE UNLAWFUL FOR ANY PERSON BY THE USE OF
FORCE OR VIOLENCE, OR THREAT OF THE USE OF FORCE OR VIOLENCE, TO
PREVENT OR ATTEMPT TO PREVENT ANY PERSON FROM ENGAGING IN ANY LAWFUL
VOCATION WITHIN THIS STATE.  ANY PERSON GUILTY OF VIOLATING THIS
SHALL BE PUNISHED BY CONFINEMENT IN THE STATE PENITENTIARY FOR NOT LESS
THAN ONE (1) YEAR, NOR MORE THAN TWO (2) YEARS."  ACT 193, ARKANSAS
ACTS OF 1943. 

FN3  A PREVIOUS CONVICTION OF PETITIONERS UNDER AN INDICTMENT
CHARGING THEM WITH A VIOLATION OF SEC. 1 WAS SET ASIDE BY THE STATE
SUPREME COURT BECAUSE OF THE ERRONEOUS ADMISSION OF EVIDENCE BY THE
TRIAL COURT.  COLE V. STATE, 210 ARK. 433, 196 S.W.2D 582. 

FN4  "UNDER ANY REASONABLE CONSTRUCTION SECTION 1 CREATES SEPARATE
OFFENSES, AS DOES SECTION 2, AND AN INDICTMENT THAT ALLEGES CRIMES
COVERED BY A PART OF SECTION 1 DOES NOT IMPOSE UPON THE DEFENDANT A
DUTY TO DEFEND UNDER SECTION 2 OR AGAINST 'THREAT' PROVISIONS OF

FN5  THE OBJECTIONS PRESSED IN THE ARKANSAS SUPREME COURT AND ALSO
ARGUED HERE WERE:  (1) THAT PETITIONERS WERE DEPRIVED OF FREEDOM OF
SPEECH AND ASSEMBLY BY REASON OF THEIR CONVICTIONS UNDER SEC. 2; (2)
THAT THEIR CONVICTIONS WERE BASED UPON A STATUTE OR CHARGES TOO VAGUE
AND INDEFINITE TO CONFORM TO DUE PROCESS; AND (3) THAT ACT 193 DEPRIVED
THEM OF THE EQUAL PROTECTION OF THE LAWS BY MAKING CERTAIN CONDUCT,
WHICH OTHERWISE WOULD HAVE BEEN A MISDEMEANOR, A FELONY WHEN COMMITTED
BY STRIKING WORKMEN. 
..END :






MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203 


NO. 90.  ARGUED DECEMBER 8, 1947.  - DECIDED MARCH 8, 1948.  - 396 ILL.
14, 71 N.E.2D 161, REVERSED. 


WITH THE PERMISSION OF A BOARD OF EDUCATION, GRANTED UNDER ITS GENERAL
SUPERVISORY POWERS OVER THE USE OF PUBLIC SCHOOL BUILDINGS, RELIGIOUS
TEACHERS, EMPLOYED SUBJECT TO THE APPROVAL AND SUPERVISION OF THE
SUPERINTENDENT OF SCHOOLS BY A PRIVATE RELIGIOUS GROUP INCLUDING
REPRESENTATIVES OF THE CATHOLIC, PROTESTANT AND JEWISH FAITHS, GAVE
RELIGIOUS INSTRUCTION IN PUBLIC SCHOOL BUILDINGS ONCE EACH WEEK. 
PUPILS WHOSE PARENTS SO REQUESTED WERE EXCUSED FROM THEIR SECULAR
CLASSES DURING THE PERIODS OF RELIGIOUS INSTRUCTION AND WERE REQUIRED
TO ATTEND THE RELIGIOUS CLASSES; BUT OTHER PUPILS WERE NOT RELEASED
FROM THEIR PUBLIC SCHOOL DUTIES, WHICH WERE COMPULSORY UNDER STATE
LAW.  A RESIDENT AND TAXPAYER OF THE SCHOOL DISTRICT WHOSE CHILD WAS
ENROLLED IN THE PUBLIC SCHOOLS SUED IN A STATE COURT FOR A WRIT OF
MANDAMUS REQUIRING THE BOARD OF EDUCATION TO TERMINATE THIS PRACTICE. 
HELD: 

1.  A JUDGMENT OF THE STATE SUPREME COURT SUSTAINING DENIAL OF THE
WRIT OF MANDAMUS ON THE GROUND THAT THE STATE STATUTES GRANTED THE
BOARD OF EDUCATION AUTHORITY TO ESTABLISH SUCH A PROGRAM DREW INTO
QUESTION "THE VALIDITY OF A STATUTE" OF THE STATE WITHIN THE MEANING OF
SEC. 237 OF THE JUDICIAL CODE, AND WAS APPEALABLE TO THIS COURT.  P.
206. 

2.  AS A RESIDENT AND TAXPAYER OF THE SCHOOL DISTRICT AND THE PARENT
OF A CHILD REQUIRED BY STATE LAW TO ATTEND THE SCHOOL, APPELLANT HAD
STANDING TO MAINTAIN THE SUIT.  P. 206. 

3.  BOTH STATE COURTS HAVING RULED EXPRESSLY ON APPELLANT'S CLAIM
THAT THE STATE PROGRAM VIOLATED THE FEDERAL CONSTITUTION, A MOTION TO
DISMISS THE APPEAL ON THE GROUND THAT APPELLANT FAILED PROPERLY TO
PRESENT THAT QUESTION IN THE STATE SUPREME COURT CANNOT BE SUSTAINED. 
P. 207. 

4.  THIS UTILIZATION OF THE STATE'S TAX-SUPPORTED PUBLIC SCHOOL
SYSTEM AND ITS MACHINERY FOR COMPULSORY PUBLIC SCHOOL ATTENDANCE TO
ENABLE SECTARIAN GROUPS TO GIVE RELIGIOUS INSTRUCTION TO PUBLIC SCHOOL
PUPILS IN PUBLIC SCHOOL BUILDINGS VIOLATES THE FIRST AMENDMENT OF THE
CONSTITUTION, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT.  PP. 209-212. 

ILLINOIS EX REL. MCCOLLUM V. BOARD OF EDUCATION OF SCHOOL DISTRICT NO.
71, CHAMPAIGN COUNTY, ILLINOIS, ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

THE SUPREME COURT OF ILLINOIS AFFIRMED A DENIAL OF A PETITION FOR A
WRIT OF MANDAMUS REQUIRING A BOARD OF EDUCATION TO TERMINATE THE GIVING
OF RELIGIOUS INSTRUCTION BY PRIVATE TEACHERS IN THE PUBLIC SCHOOLS. 
396 ILL. 14, 71 N.E.2D 161.  ON APPEAL TO THIS COURT, REVERSED AND
REMANDED, P. 212. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RELATES TO THE POWER OF A STATE TO UTILIZE ITS TAX
SUPPORTED PUBLIC SCHOOL SYSTEM IN AID OF RELIGIOUS INSTRUCTION INSOFAR
AS THAT POWER MAY BE RESTRICTED BY THE FIRST AND FOURTEENTH AMENDMENTS
TO THE FEDERAL CONSTITUTION. 

THE APPELLANT, VASHTI MCCOLLUM, BEGAN THIS ACTION FOR MANDAMUS
AGAINST THE CHAMPAIGN BOARD OF EDUCATION IN THE CIRCUIT COURT OF
CHAMPAIGN COUNTY, ILLINOIS.  HER ASSERTED INTEREST WAS THAT OF A
RESIDENT AND TAXPAYER OF CHAMPAIGN AND OF A PARENT WHOSE CHILD WAS THEN
ENROLLED IN THE CHAMPAIGN PUBLIC SCHOOLS.  ILLINOIS HAS A COMPULSORY
EDUCATION LAW WHICH, WITH EXCEPTIONS, REQUIRES PARENTS TO SEND THEIR
CHILDREN, AGED SEVEN TO SIXTEEN, TO ITS TAX-SUPPORTED PUBLIC SCHOOLS
WHERE THE CHILDREN ARE TO REMAIN IN ATTENDANCE DURING THE HOURS WHEN
THE SCHOOLS ARE REGULARLY IN SESSION.  PARENTS WHO VIOLATE THIS LAW
COMMIT A MISDEMEANOR PUNISHABLE BY FINE UNLESS THE CHILDREN ATTEND
PRIVATE OR PAROCHIAL SCHOOLS WHICH MEET EDUCATIONAL STANDARDS FIXED BY
THE STATE.  DISTRICT BOARDS OF EDUCATION ARE GIVEN GENERAL SUPERVISORY
POWERS OVER THE USE OF THE PUBLIC SCHOOL BUILDINGS WITHIN THE SCHOOL
DISTRICTS.  ILL. REV. STAT. CH. 122, SECS. 123, 301(1943). 

APPELLANT'S PETITION FOR MANDAMUS ALLEGED THAT RELIGIOUS TEACHERS,
EMPLOYED BY PRIVATE RELIGIOUS GROUPS, WERE PERMITTED TO COME WEEKLY
INTO THE SCHOOL BUILDINGS DURING THE REGULAR HOURS SET APART FOR
SECULAR TEACHING, AND THEN AND THERE FOR A PERIOD OF THIRTY MINUTES
SUBSTITUTE THEIR RELIGIOUS TEACHING FOR THE SECULAR EDUCATION PROVIDED
UNDER THE COMPULSORY EDUCATION LAW.  THE PETITIONER CHARGED THAT THIS
JOINT PUBLIC-SCHOOL RELIGIOUS-GROUP PROGRAM VIOLATED THE FIRST AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.  THE PRAYER OF
HER PETITION WAS THAT THE BOARD OF EDUCATION BE ORDERED TO "ADOPT AND
ENFORCE RULES AND REGULATIONS PROHIBITING ALL INSTRUCTION IN AND
TEACHING OF RELIGIOUS EDUCATION IN ALL PUBLIC SCHOOLS IN CHAMPAIGN
SCHOOL DISTRICT NUMBER 71, ...  AND IN ALL PUBLIC SCHOOL HOUSES AND
BUILDINGS IN SAID DISTRICT WHEN OCCUPIED BY PUBLIC SCHOOLS." 

THE BOARD FIRST MOVED TO DISMISS THE PETITION ON THE GROUND THAT
UNDER ILLINOIS LAW APPELLANT HAD NO STANDING TO MAINTAIN THE ACTION. 
THIS MOTION WAS DENIED.  AN ANSWER WAS THEN FILED, WHICH ADMITTED THAT
REGULAR WEEKLY RELIGIOUS INSTRUCTION WAS GIVEN DURING SCHOOL HOURS TO
THOSE PUPILS WHOSE PARENTS CONSENTED AND THAT THOSE PUPILS WERE
RELEASED TEMPORARILY FROM THEIR REGULAR SECULAR CLASSES FOR THE LIMITED
PURPOSE OF ATTENDING THE RELIGIOUS CLASSES.  THE ANSWER DENIED THAT
THIS COORDINATED PROGRAM OF RELIGIOUS INSTRUCTION VIOLATED THE STATE OR
FEDERAL CONSTITUTION.  MUCH EVIDENCE WAS HEARD, FINDINGS OF FACT WERE
MADE, AFTER WHICH THE PETITION FOR MANDAMUS WAS DENIED ON THE GROUND
THAT THE SCHOOL'S RELIGIOUS INSTRUCTION PROGRAM VIOLATED NEITHER THE
FEDERAL NOR STATE CONSTITUTIONAL PROVISIONS INVOKED BY THE APPELLANT. 
ON APPEAL THE STATE SUPREME COURT AFFIRMED.  396 ILL. 14, 71 N.E.2D
161.  APPELLANT APPEALED TO THIS COURT UNDER 28 U.S.C. SEC. 344(A), AND
WE NOTED PROBABLE JURISDICTION ON JUNE 2, 1947. 

THE APPELLEES PRESS A MOTION TO DISMISS THE APPEAL ON SEVERAL
GROUNDS, THE FIRST OF WHICH IS THAT THE JUDGMENT OF THE STATE SUPREME
COURT DOES NOT DRAW IN QUESTION THE "VALIDITY OF A STATUTE OF ANY
STATE" AS REQUIRED BY 28 U.S.C. SEC. 344(A).  THIS CONTENTION RESTS ON
THE ADMITTED FACT THAT THE CHALLENGED PROGRAM OF RELIGIOUS INSTRUCTION
WAS NOT EXPRESSLY AUTHORIZED BY STATUTE.  BUT THE STATE SUPREME COURT
HAS SUSTAINED THE VALIDITY OF THE PROGRAM ON THE GROUND THAT THE
ILLINOIS STATUTES GRANTED THE BOARD AUTHORITY TO ESTABLISH SUCH A
PROGRAM.  THIS HOLDING IS SUFFICIENT TO SHOW THAT THE VALIDITY OF AN
ILLINOIS STATUTE WAS DRAWN IN QUESTION WITHIN THE MEANING OF 28 U.S.C.
SEC. 344(A).  HAMILTON V. REGENTS OF U. OF CAL., 293 U.S. 245, 258.  A
SECOND GROUND FOR THE MOTION TO DISMISS IS THAT THE APPELLANT LACKS
STANDING TO MAINTAIN THE ACTION, A GROUND WHICH IS ALSO WITHOUT MERIT. 
COLEMAN V. MILLER, 307 U.S. 433, 443, 445, 464.  A THIRD GROUND FOR THE
MOTION IS THAT THE APPELLANT FAILED PROPERLY TO PRESENT IN THE STATE
SUPREME COURT HER CHALLENGE THAT THE STATE PROGRAM VIOLATED THE FEDERAL
CONSTITUTION.  BUT IN VIEW OF THE EXPRESS RULINGS OF BOTH STATE COURTS
ON THIS QUESTION, THE ARGUMENT CANNOT BE SUCCESSFULLY MAINTAINED.  THE
MOTION TO DISMISS THE APPEAL IS DENIED. 

ALTHOUGH THERE ARE DISPUTES BETWEEN THE PARTIES AS TO VARIOUS
INFERENCES THAT MAY OR MAY NOT PROPERLY BE DRAWN FROM THE EVIDENCE
CONCERNING THE RELIGIOUS PROGRAM, THE FOLLOWING FACTS ARE SHOWN BY THE
RECORD WITHOUT DISPUTE.  FN1  IN 1940 INTERESTED MEMBERS OF THE JEWISH,
ROMAN CATHOLIC, AND A FEW OF THE PROTESTANT FAITHS FORMED A VOLUNTARY
ASSOCIATION CALLED THE CHAMPAIGN COUNCIL ON RELIGIOUS EDUCATION.  THEY
OBTAINED PERMISSION FROM THE BOARD OF EDUCATION TO OFFER CLASSES IN
RELIGIOUS INSTRUCTION TO PUBLIC SCHOOL PUPILS IN GRADES FOUR TO NINE
INCLUSIVE.  CLASSES WERE MADE UP OF PUPILS WHOSE PARENTS SIGNED PRINTED
CARDS REQUESTING THAT THEIR CHILDREN BE PERMITTED TO ATTEND; FN2  THEY
WERE HELD WEEKLY, THIRTY MINUTES FOR THE LOWER GRADES, FORTY-FIVE
MINUTES FOR THE HIGHER.  THE COUNCIL EMPLOYED THE RELIGIOUS TEACHERS AT
NO EXPENSE TO THE SCHOOL AUTHORITIES, BUT THE INSTRUCTORS WERE SUBJECT
TO THE APPROVAL AND SUPERVISION OF THE SUPERINTENDENT OF SCHOOLS.  FN3
THE CLASSES WERE TAUGHT IN THREE SEPARATE RELIGIOUS GROUPS BY
PROTESTANT TEACHERS,  FN4  CATHOLIC PRIESTS, AND A JEWISH RABBI,
ALTHOUGH FOR THE PAST SEVERAL YEARS THERE HAVE APPARENTLY BEEN NO
CLASSES INSTRUCTED IN THE JEWISH RELIGION.  CLASSES WERE CONDUCTED IN
THE REGULAR CLASSROOMS OF THE SCHOOL BUILDING.  STUDENTS WHO DID NOT
CHOOSE TO TAKE THE RELIGIOUS INSTRUCTION WERE NOT RELEASED FROM PUBLIC
SCHOOL DUTIES; THEY WERE REQUIRED TO LEAVE THEIR CLASSROOMS AND GO TO
SOME OTHER PLACE IN THE SCHOOL BUILDING FOR PURSUIT OF THEIR SECULAR
STUDIES.  ON THE OTHER HAND, STUDENTS WHO WERE RELEASED FROM SECULAR
STUDY FOR THE RELIGIOUS INSTRUCTIONS WERE REQUIRED TO BE PRESENT AT THE
RELIGIOUS CLASSES.  REPORTS OF THEIR PRESENCE OR ABSENCE WERE TO BE
MADE TO THEIR SECULAR TEACHERS.  FN5 

THE FOREGOING FACTS, WITHOUT REFERENCE TO OTHERS THAT APPEAR IN THE
RECORD, SHOW THE USE OF TAX-SUPPORTED PROPERTY FOR RELIGIOUS
INSTRUCTION AND THE CLOSE COOPERATION BETWEEN THE SCHOOL AUTHORITIES
AND THE RELIGIOUS COUNCIL IN PROMOTING RELIGIOUS EDUCATION.  THE
OPERATION OF THE STATE'S COMPULSORY EDUCATION SYSTEM THUS ASSISTS AND
IS INTEGRATED WITH THE PROGRAM OF RELIGIOUS INSTRUCTION CARRIED ON BY
SEPARATE RELIGIOUS SECTS.  PUPILS COMPELLED BY LAW TO GO TO SCHOOL FOR
SECULAR EDUCATION ARE RELEASED IN PART FROM THEIR LEGAL DUTY UPON THE
CONDITION THAT THEY ATTEND THE RELIGIOUS CLASSES.  THIS IS BEYOND ALL
QUESTION A UTILIZATION OF THE TAX-ESTABLISHED AND TAX-SUPPORTED PUBLIC
SCHOOL SYSTEM TO AID RELIGIOUS GROUPS TO SPREAD THEIR FAITH.  AND IT
FALLS SQUARELY UNDER THE BAN OF THE FIRST AMENDMENT (MADE APPLICABLE TO
THE STATES BY THE FOURTEENTH) AS WE INTERPRETED IT IN EVERSON V. BOARD
OF EDUCATION, 330 U.S. 1.  THERE WE SAID:  "NEITHER A STATE NOR THE
FEDERAL GOVERNMENT CAN SET UP A CHURCH.  NEITHER CAN PASS LAWS WHICH
AID ONE RELIGION, AID ALL RELIGIONS, OR PREFER ONE RELIGION OVER
ANOTHER.  FN6  NEITHER CAN FORCE OR INFLUENCE A PERSON TO GO TO OR TO
REMAIN AWAY FROM CHURCH AGAINST HIS WILL OR FORCE HIM TO PROFESS A
BELIEF OR DISBELIEF IN ANY RELIGION.  NO PERSON CAN BE PUNISHED FOR
ENTERTAINING OR PROFESSING RELIGIOUS BELIEFS OR DISBELIEFS, FOR CHURCH
ATTENDANCE OR NON-ATTENDANCE.  NO TAX IN ANY AMOUNT, LARGE OR SMALL,
CAN BE LEVIED TO SUPPORT ANY RELIGIOUS ACTIVITIES OR INSTITUTIONS,
WHATEVER THEY MAY BE CALLED, OR WHATEVER FORM THEY MAY ADOPT TO TEACH
OR PRACTICE RELIGION.  FN7  NEITHER A STATE NOR THE FEDERAL GOVERNMENT
CAN, OPENLY OR SECRETLY, PARTICIPATE IN THE AFFAIRS OF ANY RELIGIOUS
ORGANIZATIONS OR GROUPS AND VICE VERSA.  IN THE WORDS OF JEFFERSON, THE
CLAUSE AGAINST ESTABLISHMENT OF RELIGION BY LAW WAS INTENDED TO ERECT
'A WALL OF SEPARATION BETWEEN CHURCH AND STATE.'"  ID. AT 15-16.  THE
MAJORITY IN THE EVERSON CASE, AND THE MINORITY AS SHOWN BY QUOTATIONS
FROM THE DISSENTING VIEWS IN OUR NOTES 6 AND 7, AGREED THAT THE FIRST
AMENDMENT'S LANGUAGE, PROPERLY INTERPRETED, HAD ERECTED A WALL OF
SEPARATION BETWEEN CHURCH AND STATE.  THEY DISAGREED AS TO THE FACTS
SHOWN BY THE RECORD AND AS TO THE PROPER APPLICATION OF THE FIRST
AMENDMENT'S LANGUAGE TO THOSE FACTS. 

RECOGNIZING THAT THE ILLINOIS PROGRAM IS BARRED BY THE FIRST AND
FOURTEENTH AMENDMENTS IF WE ADHERE TO THE VIEWS EXPRESSED BOTH BY THE
MAJORITY AND THE MINORITY IN THE EVERSON CASE, COUNSEL FOR THE
RESPONDENTS CHALLENGE THOSE VIEWS AS DICTA AND URGE THAT WE RECONSIDER
AND REPUDIATE THEM.  THEY ARGUE THAT HISTORICALLY THE FIRST AMENDMENT
WAS INTENDED TO FORBID ONLY GOVERNMENT PREFERENCE OF ONE RELIGION OVER
ANOTHER, NOT AN IMPARTIAL GOVERNMENTAL ASSISTANCE OF ALL RELIGIONS.  IN
ADDITION THEY ASK THAT WE DISTINGUISH OR OVERRULE OUR HOLDING IN THE
EVERSON CASE THAT THE FOURTEENTH AMENDMENT MADE THE "ESTABLISHMENT OF
RELIGION" CLAUSE OF THE FIRST AMENDMENT APPLICABLE AS A PROHIBITION
AGAINST THE STATES.  AFTER GIVING FULL CONSIDERATION TO THE ARGUMENTS
PRESENTED WE ARE UNABLE TO ACCEPT EITHER OF THESE CONTENTIONS. 

TO HOLD THAT A STATE CANNOT CONSISTENTLY WITH THE FIRST AND
FOURTEENTH AMENDMENTS UTILIZE ITS PUBLIC SCHOOL SYSTEM TO AID ANY OR
ALL RELIGIOUS FAITHS OR SECTS IN THE DISSEMINATION OF THEIR DOCTRINES
AND IDEALS DOES NOT, AS COUNSEL URGE, MANIFEST A GOVERNMENTAL HOSTILITY
TO RELIGION OR RELIGIOUS TEACHINGS.  A MANIFESTATION OF SUCH HOSTILITY
WOULD BE AT WAR WITH OUR NATIONAL TRADITION AS EMBODIED IN THE FIRST
AMENDMENT'S GUARANTY OF THE FREE EXERCISE OF RELIGION.  FOR THE FIRST
AMENDMENT RESTS UPON THE PREMISE THAT BOTH RELIGION AND GOVERNMENT CAN
BEST WORK TO ACHIEVE THEIR LOFTY AIMS IF EACH IS LEFT FREE FROM THE
OTHER WITHIN ITS RESPECTIVE SPHERE.  OR, AS WE SAID IN THE EVERSON
CASE, THE FIRST AMENDMENT HAS ERECTED A WALL BETWEEN CHURCH AND STATE
WHICH MUST BE KEPT HIGH AND IMPREGNABLE. 

HERE NOT ONLY ARE THE STATE'S TAX-SUPPORTED PUBLIC SCHOOL BUILDINGS
USED FOR THE DISSEMINATION OF RELIGIOUS DOCTRINES.  THE STATE ALSO
AFFORDS SECTARIAN GROUPS AN INVALUABLE AID IN THAT IT HELPS TO PROVIDE
PUPILS FOR THEIR RELIGIOUS CLASSES THROUGH USE OF THE STATE'S
COMPULSORY PUBLIC SCHOOL MACHINERY.  THIS IS NOT SEPARATION OF CHURCH
AND STATE. 

THE CAUSE IS REVERSED AND REMANDED TO THE STATE SUPREME COURT FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED AND
REMANDED. 

FN1  APPELLANT, TAKING ISSUE WITH THE FACTS FOUND BY THE ILLINOIS
COURTS, ARGUES THAT THE RELIGIOUS EDUCATION PROGRAM IN QUESTION IS
INVALID UNDER THE FEDERAL CONSTITUTION FOR ANY ONE OF THE FOLLOWING
REASONS:  (1) IN ACTUAL PRACTICE CERTAIN PROTESTANT GROUPS HAVE
OBTAINED AN OVERSHADOWING ADVANTAGE IN THE PROPAGATION OF THEIR FAITHS
OVER OTHER PROTESTANT SECTS; (2) THE RELIGIOUS EDUCATION PROGRAM WAS
VOLUNTARY IN NAME ONLY BECAUSE IN FACT SUBTLE PRESSURES WERE BROUGHT TO
BEAR ON THE STUDENTS TO FORCE THEM TO PARTICIPATE IN IT; AND (3) THE
POWER GIVEN THE SCHOOL SUPERINTENDENT TO REJECT TEACHERS SELECTED BY
RELIGIOUS GROUPS AND THE POWER GIVEN THE LOCAL COUNCIL ON RELIGIOUS
EDUCATION TO DETERMINE WHICH RELIGIOUS FAITHS SHOULD PARTICIPATE IN THE
PROGRAM WAS A PRIOR CENSORSHIP OF RELIGION. 

IN VIEW OF OUR DECISION WE FIND IT UNNECESSARY TO CONSIDER THESE
ARGUMENTS OR THE DISPUTED FACTS UPON WHICH THEY DEPEND. 

FN2  THE SUPREME COURT DESCRIBED THE REQUEST CARD SYSTEM AS FOLLOWS:
"  ...  ADMISSION TO THE CLASSES WAS TO BE ALLOWED ONLY UPON THE
EXPRESS WRITTEN REQUEST OF PARENTS, AND THEN ONLY TO CLASSES DESIGNATED
BY THE PARENTS.  ...  CARDS WERE DISTRIBUTED TO THE PARENTS OF
ELEMENTARY STUDENTS BY THE PUBLIC-SCHOOL TEACHERS REQUESTING THEM TO
INDICATE WHETHER THEY DESIRED THEIR CHILDREN TO RECEIVE RELIGIOUS
EDUCATION.  AFTER BEING FILLED OUT, THE CARDS WERE RETURNED TO THE
TEACHERS OF RELIGIOUS EDUCATION CLASSES EITHER BY THE PUBLIC-SCHOOL
TEACHERS OR THE CHILDREN.  ...  "  ON THIS SUBJECT THE TRIAL COURT
FOUND THAT "  ...  THOSE STUDENTS WHO HAVE OBTAINED THE WRITTEN CONSENT
OF THEIR PARENTS THEREFOR ARE RELEASED BY THE SCHOOL AUTHORITIES FROM
THEIR SECULAR WORK, AND IN THE GRADE SCHOOLS FOR A PERIOD OF THIRTY
MINUTES' INSTRUCTION IN EACH WEEK DURING SAID SCHOOL HOURS, AND FORTY
FIVE MINUTES DURING EACH WEEK IN THE JUNIOR HIGH SCHOOL, RECEIVE
TRAINING IN RELIGIOUS EDUCATION.  ...  CERTAIN CARDS ARE USED FOR
OBTAINING PERMISSION OF PARENTS FOR THEIR CHILDREN TO TAKE SAID
RELIGIOUS INSTRUCTION COURSES, AND THEY ARE MADE AVAILABLE THROUGH THE
OFFICES OF THE SUPERINTENDENT OF SCHOOLS AND THROUGH THE HANDS OF
PRINCIPALS AND TEACHERS TO THE PUPILS OF THE SCHOOL DISTRICT.  SAID
CARDS ARE PREPARED AT THE COST OF THE COUNCIL OF RELIGIOUS EDUCATION. 
THE HANDLING AND DISTRIBUTION OF SAID CARDS DOES NOT INTERFERE WITH THE
DUTIES OR SUSPEND THE REGULAR SECULAR WORK OF THE EMPLOYEES OF THE
DEFENDANT.  ...  "    FN3  THE STATE SUPREME COURT SAID:  "THE RECORD
FURTHER DISCLOSES THAT THE TEACHERS CONDUCTING THE RELIGIOUS CLASSES
WERE NOT TEACHERS IN THE PUBLIC SCHOOLS BUT WERE SUBJECT TO THE
APPROVAL AND SUPERVISION OF THE SUPERINTENDENT.  ...  "  THE TRIAL
COURT FOUND:  "BEFORE ANY FAITH OR OTHER GROUP MAY OBTAIN PERMISSION
FROM THE DEFENDANT FOR THE SIMILAR, FREE AND EQUAL USE OF ROOMS IN THE
PUBLIC SCHOOL BUILDINGS SAID FAITH OR GROUP MUST MAKE APPLICATION TO
THE SUPERINTENDENT OF SCHOOLS OF SAID SCHOOL DISTRICT NUMBER 71, WHO IN
TURN WILL DETERMINE WHETHER OR NOT IT IS PRACTICAL FOR SAID GROUP TO
TEACH IN SAID SCHOOL SYSTEM."  THE PRESIDENT OF THE LOCAL SCHOOL BOARD
TESTIFIED:  " ...  THE PROTESTANTS WOULD HAVE ONE GROUP AND THE
CATHOLICS, AND WOULD BE GIVEN A ROOM WHERE THEY WOULD HAVE THE CLASS
AND WE WOULD GO ALONG WITH THE PLAN OF THE RELIGIOUS PEOPLE.  THEY WERE
ALL TO BE TREATED ALIKE, WITH THE UNDERSTANDING THAT THE TEACHERS THEY
WOULD BRING INTO THE SCHOOL WERE APPROVED BY THE SUPERINTENDENT.  ...
THE SUPERINTENDENT WAS THE LAST WORD SO FAR AS THE INDIVIDUAL WAS
CONCERNED.   ...  " 

FN4  THERE WERE TWO TEACHERS OF THE PROTESTANT FAITH.  ONE WAS A
PRESBYTERIAN AND HAD BEEN A FOREIGN MISSIONARY FOR THAT CHURCH.  THE
SECOND TESTIFIED AS FOLLOWS:  "I AM AFFILIATED WITH THE CHRISTIAN
CHURCH.  I ALSO WORK IN THE METHODIST CHURCH AND I TAUGHT AT THE
PRESBYTERIAN.  I AM MARRIED TO A LUTHERAN." 

FN5  THE DIRECTOR OF THE CHAMPAIGN COUNCIL ON RELIGIOUS EDUCATION
TESTIFIED:  "  ...  IF ANY PUPIL IS ABSENT WE TURN IN A SLIP JUST LIKE
ANY TEACHER WOULD TO THE SUPERINTENDENT'S OFFICE.  THE SLIP IS A PIECE
OF PAPER WITH A NUMBER OF HOURS IN THE SCHOOL DAY AND A SQUARE, AND THE
TEACHER OF THE PARTICULAR ROOM FOR THE PARTICULAR HOUR RECORDS THE
ABSENTEES.  IT HAS THEIR NAMES AND THE GRADE AND THE SECTION TO WHICH
THEY BELONG.  IT IS THE SAME SHEET THAT THE GEOGRAPHY AND HISTORY
TEACHERS AND ALL THE OTHER TEACHERS USE, AND IS FURNISHED BY THE
SCHOOL.  ...  " 

FN6  THE DISSENT, AGREED TO BY FOUR JUDGES, SAID:  "THE PROBLEM THEN
CANNOT BE CAST IN TERMS OF LEGAL DISCRIMINATION OR ITS ABSENCE.  THIS
WOULD BE TRUE, EVEN THOUGH THE STATE IN GIVING AID SHOULD TREAT ALL
RELIGIOUS INSTRUCTION ALIKE.  ...  AGAIN, IT WAS THE FURNISHING OF
'CONTRIBUTIONS OF MONEY FOR THE PROPAGATION OF OPINIONS WHICH HE
DISBELIEVES' THAT THE FATHERS OUTLAWED.  THAT CONSEQUENCE AND EFFECT
ARE NOT REMOVED BY MULTIPLYING TO ALL-INCLUSIVENESS THE SECTS FOR WHICH
SUPPORT IS EXACTED.  THE CONSTITUTION REQUIRES, NOT COMPREHENSIVE
IDENTIFICATION OF STATE WITH RELIGION, BUT COMPLETE SEPARATION." 
EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 59, 60. 

FN7  THE DISSENTING JUDGES SAID:  "IN VIEW OF THIS HISTORY NO FURTHER
PROOF IS NEEDED THAT THE AMENDMENT FORBIDS ANY APPROPRIATION, LARGE OR
SMALL, FROM PUBLIC FUNDS TO AID OR SUPPORT ANY AND ALL RELIGIOUS
EXERCISES.  ...  LEGISLATURES ARE FREE TO MAKE, AND COURTS TO SUSTAIN,
APPROPRIATIONS ONLY WHEN IT CAN BE FOUND THAT IN FACT THEY DO NOT AID,
PROMOTE, ENCOURAGE OR SUSTAIN RELIGIOUS TEACHING OR OBSERVANCES, BE THE
AMOUNT LARGE OR SMALL."  EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 41,
52-53. 

MR. JUSTICE FRANKFURTER DELIVERED THE FOLLOWING OPINION, IN WHICH MR.
JUSTICE JACKSON, MR. JUSTICE RUTLEDGE AND MR. JUSTICE BURTON JOIN* . 

*MR. JUSTICE RUTLEDGE AND MR. JUSTICE BURTON CONCURRED ALSO IN THE
COURT'S OPINION. 

WE DISSENTED IN EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, BECAUSE IN
OUR VIEW THE CONSTITUTIONAL PRINCIPLE REQUIRING SEPARATION OF CHURCH
AND STATE COMPELLED INVALIDATION OF THE ORDINANCE SUSTAINED BY THE
MAJORITY.  ILLINOIS HAS HERE AUTHORIZED THE COMMINGLING OF SECTARIAN
WITH SECULAR INSTRUCTION IN THE PUBLIC SCHOOLS.  THE CONSTITUTION OF
THE UNITED STATES FORBIDS THIS. 

THIS CASE, IN THE LIGHT OF THE EVERSON DECISION, DEMONSTRATES ANEW
THAT THE MERE FORMULATION OF A RELEVANT CONSTITUTIONAL PRINCIPLE IS THE
BEGINNING OF THE SOLUTION OF A PROBLEM, NOT ITS ANSWER.  THIS IS SO
BECAUSE THE MEANING OF A SPACIOUS CONCEPTION LIKE THAT OF THE
SEPARATION OF CHURCH FROM STATE IS UNFOLDED AS APPEAL IS MADE TO THE
PRINCIPLE FROM CASE TO CASE.  WE ARE ALL AGREED THAT THE FIRST AND THE
FOURTEENTH AMENDMENTS HAVE A SECULAR REACH FAR MORE PENETRATING IN THE
CONDUCT OF GOVERNMENT THAN MERELY TO FORBID AN "ESTABLISHED CHURCH." 
BUT AGREEMENT, IN THE ABSTRACT, THAT THE FIRST AMENDMENT WAS DESIGNED
TO ERECT A "WALL OF SEPARATION BETWEEN CHURCH AND STATE," DOES NOT
PRECLUDE A CLASH OF VIEWS AS TO WHAT THE WALL SEPARATES.  INVOLVED IS
NOT ONLY THE CONSTITUTIONAL PRINCIPLE BUT THE IMPLICATIONS OF JUDICIAL
REVIEW IN ITS ENFORCEMENT.  ACCOMMODATION OF LEGISLATIVE FREEDOM AND
CONSTITUTIONAL LIMITATIONS UPON THAT FREEDOM CANNOT BE ACHIEVED BY A
MERE PHRASE.  WE CANNOT ILLUMINATINGLY APPLY THE "WALL-OF-SEPARATION"
METAPHOR UNTIL WE HAVE CONSIDERED THE RELEVANT HISTORY OF RELIGIOUS
EDUCATION IN AMERICA, THE PLACE OF THE "RELEASED TIME" MOVEMENT IN THAT
HISTORY, AND ITS PRECISE MANIFESTATION IN THE CASE BEFORE US. 

TO UNDERSTAND THE PARTICULAR PROGRAM NOW BEFORE US AS A CONSCIENTIOUS
ATTEMPT TO ACCOMMODATE THE ALLOWABLE FUNCTIONS OF GOVERNMENT AND THE
SPECIAL CONCERNS OF THE CHURCH WITHIN THE FRAMEWORK OF OUR CONSTITUTION
AND WITH DUE REGARD TO THE KIND OF SOCIETY FOR WHICH IT WAS DESIGNED,
WE MUST PUT THIS CHAMPAIGN PROGRAM OF 1940 IN ITS HISTORIC SETTING. 
TRADITIONALLY, ORGANIZED EDUCATION IN THE WESTERN WORLD WAS CHURCH
EDUCATION.  IT COULD HARDLY BE OTHERWISE WHEN THE EDUCATION OF CHILDREN
WAS PRIMARILY STUDY OF THE WORD AND THE WAYS OF GOD.  EVEN IN THE
PROTESTANT COUNTRIES, WHERE THERE WAS A LESS CLOSE IDENTIFICATION OF
CHURCH AND STATE, THE BASIS OF EDUCATION WAS LARGELY THE BIBLE, AND ITS
CHIEF PURPOSE INCULCATION OF PIETY.  TO THE EXTENT THAT THE STATE
INTERVENED, IT USED ITS AUTHORITY TO FURTHER AIMS OF THE CHURCH. 

THE EMIGRANTS WHO CAME TO THESE SHORES BROUGHT THIS VIEW OF EDUCATION
WITH THEM.  COLONIAL SCHOOLS CERTAINLY STARTED WITH A RELIGIOUS
ORIENTATION.  WHEN THE COMMON PROBLEMS OF THE EARLY SETTLERS OF THE
MASSACHUSETTS BAY COLONY REVEALED THE NEED FOR COMMON SCHOOLS, THE
OBJECT WAS THE DEFEAT OF "ONE CHIEF PROJECT OF THAT OLD DELUDER, SATAN,
TO KEEP MEN FROM THE KNOWLEDGE OF THE SCRIPTURES."  THE LAWS AND
LIBERTIES OF MASSACHUSETTS, 1648 EDITION (CAMBRIDGE 1929) 47.  FN1 

THE EVOLUTION OF COLONIAL EDUCATION, LARGELY IN THE SERVICE OF
RELIGION, INTO THE PUBLIC SCHOOL SYSTEM OF TODAY IS THE STORY OF
CHANGING CONCEPTIONS REGARDING THE AMERICAN DEMOCRATIC SOCIETY, OF THE
FUNCTIONS OF STATE-MAINTAINED EDUCATION IN SUCH A SOCIETY, AND OF THE
ROLE THEREIN OF THE FREE EXERCISE OF RELIGION BY THE PEOPLE.  THE
MODERN PUBLIC SCHOOL DERIVED FROM A PHILOSOPHY OF FREEDOM REFLECTED IN
THE FIRST AMENDMENT.  IT IS APPROPRIATE TO RECALL THAT THE REMONSTRANCE
OF JAMES MADISON, AN EVENT BASIC IN THE HISTORY OF RELIGIOUS LIBERTY,
WAS CALLED FORTH BY A PROPOSAL WHICH INVOLVED SUPPORT TO RELIGIOUS
EDUCATION.  SEE MR. JUSTICE RUTLEDGE'S OPINION IN THE EVERSON CASE,
SUPRA, 330 U.S. AT 36-37.  AS THE MOMENTUM FOR POPULAR EDUCATION
INCREASED AND IN TURN EVOKED STRONG CLAIMS FOR STATE SUPPORT OF
RELIGIOUS EDUCATION, CONTESTS NOT UNLIKE THAT WHICH IN VIRGINIA HAD
PRODUCED MADISON'S REMONSTRANCE APPEARED IN VARIOUS FORMS IN OTHER
STATES.  NEW YORK AND MASSACHUSETTS PROVIDE FAMOUS CHAPTERS IN THE
HISTORY THAT ESTABLISHED DISSOCIATION OF RELIGIOUS TEACHING FROM STATE
MAINTAINED SCHOOLS.  IN NEW YORK, THE RISE OF THE COMMON SCHOOLS LED,
DESPITE FIERCE SECTARIAN OPPOSITION, TO THE BARRING OF TAX FUNDS TO
CHURCH SCHOOLS, AND LATER TO ANY SCHOOL IN WHICH SECTARIAN DOCTRINE WAS
TAUGHT.  FN2  IN MASSACHUSETTS, LARGELY THROUGH THE EFFORTS OF HORACE
MANN, ALL SECTARIAN TEACHINGS WERE BARRED FROM THE COMMON SCHOOL TO
SAVE IT FROM BEING RENT BY DENOMINATIONAL CONFLICT.  FN3  THE UPSHOT OF
THESE CONTROVERSIES, OFTEN LONG AND FIERCE, IS FAIRLY SUMMARIZED BY
SAYING THAT LONG BEFORE THE FOURTEENTH AMENDMENT SUBJECTED THE STATES
TO NEW LIMITATIONS, THE PROHIBITION OF FURTHERANCE BY THE STATE OF
RELIGIOUS INSTRUCTION BECAME THE GUIDING PRINCIPLE, IN LAW AND FEELING,
OF THE AMERICAN PEOPLE.  IN SUSTAINING STEPHEN GIRARD'S WILL, THIS
COURT REFERRED TO THE INEVITABLE CONFLICTS ENGENDERED BY MATTERS
"CONNECTED WITH RELIGIOUS POLITY" AND PARTICULARLY "IN A COUNTRY
COMPOSED OF SUCH A VARIETY OF RELIGIOUS SECTS AS OUR COUNTRY."  VIDAL
V. GIRARD'S EXECUTORS, 2 HOW.  127, 198.  THAT WAS MORE THAN ONE
HUNDRED YEARS AGO. 

SEPARATION IN THE FIELD OF EDUCATION, THEN, WAS NOT IMPOSED UPON
UNWILLING STATES BY FORCE OF SUPERIOR LAW.  IN THIS RESPECT THE
FOURTEENTH AMENDMENT MERELY REFLECTED A PRINCIPLE THEN DOMINANT IN OUR
NATIONAL LIFE.  TO THE EXTENT THAT THE CONSTITUTION THUS MADE IT
BINDING UPON THE STATES, THE BASIS OF THE RESTRICTION IS THE WHOLE
EXPERIENCE OF OUR PEOPLE.  ZEALOUS WATCHFULNESS AGAINST FUSION OF
SECULAR AND RELIGIOUS ACTIVITIES BY GOVERNMENT ITSELF, THROUGH ANY OF
ITS INSTRUMENTS BUT ESPECIALLY THROUGH ITS EDUCATIONAL AGENCIES, WAS
THE DEMOCRATIC RESPONSE OF THE AMERICAN COMMUNITY TO THE PARTICULAR
NEEDS OF A YOUNG AND GROWING NATION, UNIQUE IN THE COMPOSITION OF ITS
PEOPLE.  FN4  A TOTALLY DIFFERENT SITUATION ELSEWHERE, AS ILLUSTRATED
FOR INSTANCE BY THE ENGLISH PROVISIONS FOR RELIGIOUS EDUCATION IN STATE
MAINTAINED SCHOOLS, ONLY SERVES TO ILLUSTRATE THAT FREE SOCIETIES ARE
NOT CAST IN ONE MOULD.  SEE THE EDUCATION ACT OF 1944, 7 AND 8 GEO. VI,
C. 31.  DIFFERENT INSTITUTIONS EVOLVE FROM DIFFERENT HISTORIC
CIRCUMSTANCES. 

IT IS PERTINENT TO REMIND THAT THE ESTABLISHMENT OF THIS PRINCIPLE OF
SEPARATION IN THE FIELD OF EDUCATION WAS NOT DUE TO ANY DECLINE IN THE
RELIGIOUS BELIEFS OF THE PEOPLE.  HORACE MANN WAS A DEVOUT CHRISTIAN,
AND THE DEEP RELIGIOUS FEELING OF JAMES MADISON IS STAMPED UPON THE
REMONSTRANCE.  THE SECULAR PUBLIC SCHOOL DID NOT IMPLY INDIFFERENCE TO
THE BASIC ROLE OF RELIGION IN THE LIFE OF THE PEOPLE, NOR REJECTION OF
RELIGIOUS EDUCATION AS A MEANS OF FOSTERING IT.  THE CLAIMS OF RELIGION
WERE NOT MINIMIZED BY REFUSING TO MAKE THE PUBLIC SCHOOLS AGENCIES FOR
THEIR ASSERTION.  THE NON-SECTARIAN OR SECULAR PUBLIC SCHOOL WAS THE
MEANS OF RECONCILING FREEDOM IN GENERAL WITH RELIGIOUS FREEDOM.  THE
SHARP CONFINEMENT OF THE PUBLIC SCHOOLS TO SECULAR EDUCATION WAS A
RECOGNITION OF THE NEED OF A DEMOCRATIC SOCIETY TO EDUCATE ITS
CHILDREN, INSOFAR AS THE STATE UNDERTOOK TO DO SO, IN AN ATMOSPHERE
FREE FROM PRESSURES IN A REALM IN WHICH PRESSURES ARE MOST RESISTED AND
WHERE CONFLICTS ARE MOST EASILY AND MOST BITTERLY ENGENDERED.  DESIGNED
TO SERVE AS PERHAPS THE MOST POWERFUL AGENCY FOR PROMOTING COHESION
AMONG A HETEROGENEOUS DEMOCRATIC PEOPLE, THE PUBLIC SCHOOL MUST KEEP
SCRUPULOUSLY FREE FROM ENTANGLEMENT IN THE STRIFE OF SECTS.  THE
PRESERVATION OF THE COMMUNITY FROM DIVISIVE CONFLICTS, OF GOVERNMENT
FROM IRRECONCILABLE PRESSURES BY RELIGIOUS GROUPS, OF RELIGION FROM
CENSORSHIP AND COERCION HOWEVER SUBTLY EXERCISED, REQUIRES STRICT
CONFINEMENT OF THE STATE TO INSTRUCTION OTHER THAN RELIGIOUS, LEAVING
TO THE INDIVIDUAL'S CHURCH AND HOME, INDOCTRINATION IN THE FAITH OF HIS
CHOICE. 

THIS DEVELOPMENT OF THE PUBLIC SCHOOL AS A SYMBOL OF OUR SECULAR
UNITY WAS NOT A SUDDEN ACHIEVEMENT NOR ATTAINED WITHOUT VIOLENT
CONFLICT.  FN5  WHILE IN SMALL COMMUNITIES OF COMPARATIVELY HOMOGENEOUS
RELIGIOUS BELIEFS, THE NEED FOR ABSOLUTE SEPARATION PRESENTED NO
URGENCIES, ELSEWHERE THE GROWTH OF THE SECULAR SCHOOL ENCOUNTERED THE
RESISTANCE OF FEELING STRONGLY ENGAGED AGAINST IT.  BUT THE
INEVITABILITY OF SUCH ATTEMPTS IS THE VERY REASON FOR CONSTITUTIONAL
PROVISIONS PRIMARILY CONCERNED WITH THE PROTECTION OF MINORITY GROUPS. 
AND SUCH SECTS ARE SHIFTING GROUPS, VARYING FROM TIME TO TIME, AND
PLACE TO PLACE, THUS REPRESENTING IN THEIR TOTALITY THE COMMON INTEREST
OF THE NATION. 

ENOUGH HAS BEEN SAID TO INDICATE THAT WE ARE DEALING NOT WITH A FULL
BLOWN PRINCIPLE, NOR ONE HAVING THE DEFINITENESS OF A SURVEYOR'S METES
AND BOUNDS.  BUT BY 1875 THE SEPARATION OF PUBLIC EDUCATION FROM CHURCH
ENTANGLEMENTS, OF THE STATE FROM THE TEACHING OF RELIGION, WAS FIRMLY
ESTABLISHED IN THE CONSCIOUSNESS OF THE NATION.  IN THAT YEAR PRESIDENT
GRANT MADE HIS FAMOUS REMARKS TO THE CONVENTION OF THE ARMY OF THE
TENNESSEE: 

"ENCOURAGE FREE SCHOOLS, AND RESOLVE THAT NOT ONE DOLLAR APPROPRIATED
FOR THEIR SUPPORT SHALL BE APPROPRIATED TO THE SUPPORT OF ANY SECTARIAN
SCHOOLS.  RESOLVE THAT NEITHER THE STATE NOR NATION, NOR BOTH COMBINED,
SHALL SUPPORT INSTITUTIONS OF LEARNING OTHER THAN THOSE SUFFICIENT TO
AFFORD EVERY CHILD GROWING UP IN THE LAND THE OPPORTUNITY OF A GOOD
COMMONSCHOOL EDUCATION, UNMIXED WITH SECTARIAN, PAGAN, OR ATHEISTICAL
DOGMAS.  LEAVE THE MATTER OF RELIGION TO THE FAMILY ALTAR, THE CHURCH,
AND THE PRIVATE SCHOOL, SUPPORTED ENTIRELY BY PRIVATE CONTRIBUTIONS. 
KEEP THE CHURCH AND THE STATE FOREVER SEPARATE."  "THE PRESIDENT'S
SPEECH AT DES MOINES," 22 CATHOLIC WORLD 433, 434-35(1876). 

SO STRONG WAS THIS CONVICTION, THAT RATHER THAN REST ON THE
COMPREHENSIVE PROHIBITIONS OF THE FIRST AND FOURTEENTH AMENDMENTS,
PRESIDENT GRANT URGED THAT THERE BE WRITTEN INTO THE UNITED STATES
CONSTITUTION PARTICULAR ELABORATIONS, INCLUDING A SPECIFIC PROHIBITION
AGAINST THE USE OF PUBLIC FUNDS FOR SECTARIAN EDUCATION,  FN6  SUCH AS
HAD BEEN WRITTEN INTO MANY STATE CONSTITUTIONS.  FN7  BY 1894, IN
URGING THE ADOPTION OF SUCH A PROVISION IN THE NEW YORK CONSTITUTION,
ELIHU ROOT WAS ABLE TO SUMMARIZE A CENTURY OF THE NATION'S HISTORY:
"IT IS NOT A QUESTION OF RELIGION, OR OF CREED, OR OF PARTY; IT IS A
QUESTION OF DECLARING AND MAINTAINING THE GREAT AMERICAN PRINCIPLE OF
ETERNAL SEPARATION BETWEEN CHURCH AND STATE."  ROOT, ADDRESSES ON
GOVERNMENT AND CITIZENSHIP, 137, 140.  FN8  THE EXTENT TO WHICH THIS
PRINCIPLE WAS DEEMED A PRESUPPOSITION OF OUR CONSTITUTIONAL SYSTEM IS
STRIKINGLY ILLUSTRATED BY THE FACT THAT EVERY STATE ADMITTED INTO THE
UNION SINCE 1876 WAS COMPELLED BY CONGRESS TO WRITE INTO ITS
CONSTITUTION A REQUIREMENT THAT IT MAINTAIN A SCHOOL SYSTEM "FREE FROM
AND SECULAR INSTRUCTION IN THE PUBLIC SCHOOL IS OF COURSE ONLY HALF THE
STORY.  A RELIGIOUS PEOPLE WAS NATURALLY CONCERNED ABOUT THE PART OF
THE CHILD'S EDUCATION ENTRUSTED "TO THE FAMILY ALTAR, THE CHURCH, AND
THE PRIVATE SCHOOL."  THE PROMOTION OF RELIGIOUS EDUCATION TOOK MANY
FORMS.  LABORING UNDER FINANCIAL DIFFICULTIES AND EXERCISING ONLY
PERSUASIVE AUTHORITY, VARIOUS DENOMINATIONS FELT HANDICAPPED IN THEIR
TASK OF RELIGIOUS EDUCATION.  ABORTIVE ATTEMPTS WERE THEREFORE
FREQUENTLY MADE TO OBTAIN PUBLIC FUNDS FOR RELIGIOUS SCHOOLS.  FN10
BUT THE MAJOR EFFORTS OF RELIGIOUS INCULCATION WERE A RECOGNITION OF
THE PRINCIPLE OF SEPARATION BY THE ESTABLISHMENT OF CHURCH SCHOOLS
PRIVATELY SUPPORTED.  PAROCHIAL SCHOOLS WERE MAINTAINED BY VARIOUS
DENOMINATIONS.  THESE, HOWEVER, WERE OFTEN BESET BY SERIOUS HANDICAPS,
FINANCIAL AND OTHERWISE, SO THAT THE RELIGIOUS AIMS WHICH THEY
REPRESENTED FOUND OTHER DIRECTIONS.  THERE WERE EXPERIMENTS WITH
VACATION SCHOOLS, WITH SATURDAY AS WELL AS SUNDAY SCHOOLS.  FN11  THEY
ALL FELL SHORT OF THEIR PURPOSE.  IT WAS URGED THAT BY APPEARING TO
MAKE RELIGION A ONE-DAY-A-WEEK MATTER, THE SUNDAY SCHOOL, WHICH
ACQUIRED NATIONAL ACCEPTANCE, TENDED TO RELEGATE THE CHILD'S RELIGIOUS
EDUCATION, AND THEREBY HIS RELIGION, TO A MINOR ROLE NOT UNLIKE THE
ENFORCED PIANO LESSON. 

OUT OF THESE INADEQUATE EFFORTS EVOLVED THE WEEK-DAY CHURCH SCHOOL,
HELD ON ONE OR MORE AFTERNOONS A WEEK AFTER THE CLOSE OF THE PUBLIC
SCHOOL.  BUT CHILDREN CONTINUED TO BE CHILDREN; THEY WANTED TO PLAY
WHEN SCHOOL WAS OUT, PARTICULARLY WHEN OTHER CHILDREN WERE FREE TO DO
SO. CHURCH LEADERS DECIDED THAT IF THE WEEK-DAY CHURCH SCHOOL WAS TO
SUCCEED, A WAY HAD TO BE FOUND TO GIVE THE CHILD HIS RELIGIOUS
EDUCATION DURING WHAT THE CHILD CONCEIVED TO BE HIS "BUSINESS HOURS." 

THE INITIATION OF THE MOVEMENT  FN12  MAY FAIRLY BE ATTRIBUTED TO DR.
GEORGE U. WENNER.  THE UNDERLYING ASSUMPTION OF HIS PROPOSAL, MADE AT
THE INTERFAITH CONFERENCE ON FEDERATION HELD IN NEW YORK CITY IN 1905,
WAS THAT THE PUBLIC SCHOOL UNDULY MONOPOLIZED THE CHILD'S TIME AND THAT
THE CHURCHES WERE ENTITLED TO THEIR SHARE OF IT.  FN13  THIS, THE
SCHOOLS SHOULD "RELEASE."  ACCORDINGLY, THE FEDERATION, CITING THE
EXAMPLE OF THE THIRD REPUBLIC OF FRANCE,  FN14  URGED THAT UPON THE
REQUEST OF THEIR PARENTS CHILDREN BE EXCUSED FROM PUBLIC SCHOOL ON
WEDNESDAY AFTERNOON, SO THAT THE CHURCHES COULD PROVIDE "SUNDAY SCHOOL
ON WEDNESDAY."  THIS WAS TO BE CARRIED OUT ON CHURCH PREMISES UNDER
CHURCH AUTHORITY.  THOSE NOT DESIRING TO ATTEND CHURCH SCHOOLS WOULD
CONTINUE THEIR NORMAL CLASSES.  LEST THESE PUBLIC SCHOOL CLASSES
UNFAIRLY COMPETE WITH THE CHURCH EDUCATION, IT WAS REQUESTED THAT THE
SCHOOL AUTHORITIES REFRAIN FROM SCHEDULING COURSES OR ACTIVITIES OF
COMPELLING INTEREST OR IMPORTANCE. 

THE PROPOSAL AROUSED CONSIDERABLE OPPOSITION AND IT TOOK ANOTHER
DECADE FOR A "RELEASED TIME" SCHEME TO BECOME PART OF A PUBLIC SCHOOL
SYSTEM.  GARY, INDIANA, INAUGURATED THE MOVEMENT.  AT A TIME WHEN
INDUSTRIAL EXPANSION STRAINED THE COMMUNAL FACILITIES OF THE CITY,
SUPERINTENDENT OF SCHOOLS WIRT SUGGESTED A FULLER USE OF THE SCHOOL
BUILDINGS.  BUILDING ON THEORIES WHICH HAD BECOME MORE OR LESS CURRENT,
HE ALSO URGED THAT EDUCATION WAS MORE THAN INSTRUCTION IN A CLASSROOM. 
THE SCHOOL WAS ONLY ONE OF SEVERAL EDUCATIONAL AGENCIES.  THE LIBRARY,
THE PLAYGROUND, THE HOME, THE CHURCH, ALL HAVE THEIR FUNCTION IN THE
CHILD'S PROPER UNFOLDING.  ACCORDINGLY, WIRT'S PLAN SOUGHT TO ROTATE
THE SCHEDULES OF THE CHILDREN DURING THE SCHOOL-DAY SO THAT SOME WERE
IN CLASS, OTHERS WERE IN THE LIBRARY, STILL OTHERS IN THE PLAYGROUND. 
AND SOME, HE SUGGESTED TO THE LEADING MINISTERS OF THE CITY, MIGHT BE
RELEASED TO ATTEND RELIGIOUS CLASSES IF THE CHURCHES OF THE CITY
COOPERATED AND PROVIDED THEM.  THEY DID, IN 1914, AND THUS WAS
"RELEASED TIME" BEGUN.  THE RELIGIOUS TEACHING WAS HELD ON CHURCH
PREMISES AND THE PUBLIC SCHOOLS HAD NO HAND IN THE CONDUCT OF THESE
CHURCH SCHOOLS.  THEY DID NOT SUPERVISE THE CHOICE OF INSTRUCTORS OR
THE SUBJECT MATTER TAUGHT.  NOR DID THEY ASSUME RESPONSIBILITY FOR THE
ATTENDANCE, CONDUCT OR ACHIEVEMENT OF THE CHILD IN A CHURCH SCHOOL; AND
HE RECEIVED NO CREDIT FOR IT.  THE PERIOD OF ATTENDANCE IN THE
RELIGIOUS SCHOOLS WOULD OTHERWISE HAVE BEEN A PLAY PERIOD FOR THE
CHILD, WITH THE RESULT THAT THE ARRANGEMENT DID NOT CUT INTO PUBLIC
SCHOOL INSTRUCTION OR TRULY AFFECT THE ACTIVITIES OR FEELINGS OF THE
CHILDREN WHO DID NOT ATTEND THE CHURCH SCHOOLS.  FN15 

FROM SUCH A BEGINNING "RELEASED TIME" HAS ATTAINED SUBSTANTIAL
PROPORTIONS.  IN 1914-15, UNDER THE GARY PROGRAM, 619 PUPILS LEFT THE
PUBLIC SCHOOLS FOR THE CHURCH SCHOOLS DURING ONE PERIOD A WEEK. 
ACCORDING TO RESPONSIBLE FIGURES ALMOST 2,000,000 IN SOME 2,200
COMMUNITIES PARTICIPATED IN "RELEASED TIME" PROGRAMS DURING 1947.  FN16
A MOVEMENT OF SUCH SCOPE INDICATES THE IMPORTANCE OF THE PROBLEM TO
WHICH THE "RELEASED TIME" PROGRAMS ARE DIRECTED.  BUT TO THE EXTENT
THAT ASPECTS OF THESE PROGRAMS ARE OPEN TO CONSTITUTIONAL OBJECTION,
THE MORE EXTENSIVELY THE MOVEMENT OPERATES, THE MORE OMINOUS THE
BREACHES IN THE WALL OF SEPARATION. 

OF COURSE, "RELEASED TIME" AS A GENERALIZED CONCEPTION, UNDEFINED BY
DIFFERENTIATING PARTICULARITIES, IS NOT AN ISSUE FOR CONSTITUTIONAL
ADJUDICATION.  LOCAL PROGRAMS DIFFER FROM EACH OTHER IN MANY AND
CRUCIAL RESPECTS.  SOME "RELEASED TIME" CLASSES ARE UNDER SEPARATE
DENOMINATIONAL AUSPICES, OTHERS ARE CONDUCTED JOINTLY BY SEVERAL
DENOMINATIONS, OFTEN EMBRACING ALL THE RELIGIOUS AFFILIATIONS OF A
COMMUNITY.  SOME CLASSES IN RELIGION TEACH A LIMITED SECTARIANISM;
OTHERS EMPHASIZE DEMOCRACY, UNITY AND SPIRITUAL VALUES NOT ANCHORED IN
A PARTICULAR CREED.  INSOFAR AS THESE ARE MANIFESTATIONS MERELY OF THE
FREE EXERCISE OF RELIGION, THEY ARE QUITE OUTSIDE THE SCOPE OF JUDICIAL
CONCERN, EXCEPT INSOFAR AS THE COURT MAY BE CALLED UPON TO PROTECT THE
RIGHT OF RELIGIOUS FREEDOM.  IT IS ONLY WHEN CHALLENGE IS MADE TO THE
SHARE THAT THE PUBLIC SCHOOLS HAVE IN THE EXECUTION OF A PARTICULAR
"RELEASED TIME" PROGRAM THAT CLOSE JUDICIAL SCRUTINY IS DEMANDED OF THE
EXACT RELATION BETWEEN THE RELIGIOUS INSTRUCTION AND THE PUBLIC
EDUCATIONAL SYSTEM IN THE SPECIFIC SITUATION BEFORE THE COURT.  FN17 

THE SUBSTANTIAL DIFFERENCES AMONG ARRANGEMENTS LUMPED TOGETHER AS
"RELEASED TIME" EMPHASIZE THE IMPORTANCE OF DETAILED ANALYSIS OF THE
FACTS TO WHICH THE CONSTITUTIONAL TEST OF SEPARATION IS TO BE APPLIED. 
HOW DOES "RELEASED TIME" OPERATE IN CHAMPAIGN?  PUBLIC SCHOOL TEACHERS
DISTRIBUTE TO THEIR PUPILS CARDS SUPPLIED BY CHURCH GROUPS, SO THAT THE
PARENTS MAY INDICATE WHETHER THEY DESIRE RELIGIOUS INSTRUCTION FOR
THEIR CHILDREN.  FOR THOSE DESIRING IT, RELIGIOUS CLASSES ARE CONDUCTED
IN THE REGULAR CLASSROOMS OF THE PUBLIC SCHOOLS BY TEACHERS OF RELIGION
PAID BY THE CHURCHES AND APPOINTED BY THEM, BUT, AS THE STATE COURT
FOUND, "SUBJECT TO THE APPROVAL AND SUPERVISION OF THE
SUPERINTENDENT."  THE COURSES DO NOT PROFESS TO GIVE SECULAR
INSTRUCTION IN SUBJECTS CONCERNING RELIGION.  THEIR CANDID PURPOSE IS
CLASSES OFFERED, A PARTICULAR SECT WISHING A TEACHER FOR ITS DEVOTEES
REQUIRES THE PERMISSION OF THE SCHOOL SUPERINTENDENT "WHO IN TURN WILL
DETERMINE WHETHER OR NOT IT IS PRACTICAL FOR SAID GROUP TO TEACH IN
SAID SCHOOL SYSTEM."  IF NO PROVISION IS MADE FOR RELIGIOUS INSTRUCTION
IN THE PARTICULAR FAITH OF A CHILD, OR IF FOR OTHER REASONS THE CHILD
IS NOT ENROLLED IN ANY OF THE OFFERED CLASSES, HE IS REQUIRED TO ATTEND
A REGULAR SCHOOL CLASS, OR A STUDY PERIOD DURING WHICH HE IS OFTEN LEFT
TO HIS OWN DEVICES.  REPORTS OF ATTENDANCE IN THE RELIGIOUS CLASSES ARE
SUBMITTED BY THE RELIGIOUS INSTRUCTOR TO THE SCHOOL AUTHORITIES, AND
THE CHILD WHO FAILS TO ATTEND IS PRESUMABLY DEEMED A TRUANT. 

RELIGIOUS EDUCATION SO CONDUCTED ON SCHOOL TIME AND PROPERTY IS
PATENTLY WOVEN INTO THE WORKING SCHEME OF THE SCHOOL.  THE CHAMPAIGN
ARRANGEMENT THUS PRESENTS POWERFUL ELEMENTS OF INHERENT PRESSURE BY THE
SCHOOL SYSTEM IN THE INTEREST OF RELIGIOUS SECTS.  THE FACT THAT THIS
POWER HAS NOT BEEN USED TO DISCRIMINATE IS BESIDE THE POINT. 
SEPARATION IS A REQUIREMENT TO ABSTAIN FROM FUSING FUNCTIONS OF
GOVERNMENT AND OF RELIGIOUS SECTS, NOT MERELY TO TREAT THEM ALL
EQUALLY.  THAT A CHILD IS OFFERED AN ALTERNATIVE MAY REDUCE THE
CONSTRAINT; IT DOES NOT ELIMINATE THE OPERATION OF INFLUENCE BY THE
SCHOOL IN MATTERS SACRED TO CONSCIENCE AND OUTSIDE THE SCHOOL'S
DOMAIN.  THE LAW OF IMITATION OPERATES, AND NON-CONFORMITY IS NOT AN
OUTSTANDING CHARACTERISTIC OF CHILDREN.  THE RESULT IS AN OBVIOUS
PRESSURE UPON CHILDREN TO ATTEND.  FN18  AGAIN, WHILE THE CHAMPAIGN
SCHOOL POPULATION REPRESENTS ONLY A FRACTION OF THE MORE THAN TWO
HUNDRED AND FIFTY SECTS OF THE NATION, NOT EVEN ALL THE PRACTICING
INSTRUCTION.  THE CHILDREN BELONGING TO THESE NON-PARTICIPATING SECTS
WILL THUS HAVE INCULCATED IN THEM A FEELING OF SEPARATISM WHEN THE
SCHOOL SHOULD BE THE TRAINING GROUND FOR HABITS OF COMMUNITY, OR THEY
WILL HAVE RELIGIOUS INSTRUCTION IN A FAITH WHICH IS NOT THAT OF THEIR
PARENTS.  AS A RESULT, THE PUBLIC SCHOOL SYSTEM OF CHAMPAIGN ACTIVELY
FURTHERS INCULCATION IN THE RELIGIOUS TENETS OF SOME FAITHS, AND IN THE
PROCESS SHARPENS THE CONSCIOUSNESS OF RELIGIOUS DIFFERENCES AT LEAST
AMONG SOME OF THE CHILDREN COMMITTED TO ITS CARE.  THESE ARE
CONSEQUENCES NOT AMENABLE TO STATISTICS.  BUT THEY ARE PRECISELY THE
CONSEQUENCES AGAINST WHICH THE CONSTITUTION WAS DIRECTED WHEN IT
PROHIBITED THE GOVERNMENT COMMON TO ALL FROM BECOMING EMBROILED,
HOWEVER INNOCENTLY, IN THE DESTRUCTIVE RELIGIOUS CONFLICTS OF WHICH THE
HISTORY OF EVEN THIS COUNTRY RECORDS SOME DARK PAGES.  FN19 

MENTION SHOULD NOT BE OMITTED THAT THE INTEGRATION OF RELIGIOUS
INSTRUCTION WITHIN THE SCHOOL SYSTEM AS PRACTICED IN CHAMPAIGN IS
SUPPORTED BY ARGUMENTS DRAWN FROM EDUCATIONAL THEORIES AS DIVERSE AS
THOSE DERIVED FROM CATHOLIC CONCEPTIONS AND FROM THE WRITINGS OF JOHN
DEWEY.  FN20 MOVEMENTS LIKE "RELEASED TIME" ARE SELDOM SINGLE IN ORIGIN
OR AIM.  NOR CAN THE INTRUSION OF RELIGIOUS INSTRUCTION INTO THE PUBLIC
SCHOOL SYSTEM OF CHAMPAIGN BE MINIMIZED BY SAYING THAT IT ABSORBS LESS
THAN AN HOUR A WEEK; IN FACT, THAT AFFORDS EVIDENCE OF A DESIGN
CONSTITUTIONALLY OBJECTIONABLE.  IF IT WERE MERELY A QUESTION OF
ENABLING A CHILD TO OBTAIN RELIGIOUS INSTRUCTION WITH A RECEPTIVE MIND,
THE THIRTY OR FORTY-FIVE MINUTES COULD READILY BE FOUND ON SATURDAY OR
SUNDAY.  IF THAT WERE ALL, CHAMPAIGN MIGHT HAVE DRAWN UPON THE FRENCH
SYSTEM, KNOWN IN ITS AMERICAN MANIFESTATION AS "DISMISSED TIME,"
WHEREBY ONE SCHOOL DAY IS SHORTENED TO ALLOW ALL CHILDREN TO GO WHERE
THEY PLEASE, LEAVING THOSE WHO SO DESIRE TO GO TO A RELIGIOUS SCHOOL. 
FN21 THE MOMENTUM OF THE WHOLE SCHOOL ATMOSPHERE AND SCHOOL PLANNING IS
PRESUMABLY PUT BEHIND RELIGIOUS INSTRUCTION, AS GIVEN IN CHAMPAIGN,
PRECISELY IN ORDER TO SECURE FOR THE RELIGIOUS INSTRUCTION SUCH
MOMENTUM AND PLANNING.  TO SPEAK OF "RELEASED TIME" AS BEING ONLY HALF
OR THREE QUARTERS OF AN HOUR IS TO DRAW A THREAD FROM A FABRIC. 

WE DO NOT CONSIDER, AS INDEED WE COULD NOT, SCHOOL PROGRAMS NOT
BEFORE US WHICH, THOUGH COLLOQUIALLY CHARACTERIZED AS "RELEASED TIME,"
PRESENT SITUATIONS DIFFERING IN ASPECTS THAT MAY WELL BE
CONSTITUTIONALLY CRUCIAL.  DIFFERENT FORMS WHICH "RELEASED TIME" HAS
TAKEN DURING MORE THAN THIRTY YEARS OF GROWTH INCLUDE PROGRAMS WHICH,
LIKE THAT BEFORE US, COULD NOT WITHSTAND THE TEST OF THE CONSTITUTION;
OTHERS MAY BE FOUND UNEXCEPTIONABLE.  WE DO NOT NOW ATTEMPT TO WEIGH IN
THE CONSTITUTIONAL SCALE EVERY SEPARATE DETAIL OR VARIOUS COMBINATION
OF FACTORS WHICH MAY ESTABLISH A VALID "RELEASED TIME" PROGRAM.  WE
FIND THAT THE BASIC CONSTITUTIONAL PRINCIPLE OF ABSOLUTE SEPARATION WAS
VIOLATED WHEN THE STATE OF ILLINOIS, SPEAKING THROUGH ITS SUPREME
COURT, SUSTAINED THE SCHOOL AUTHORITIES OF CHAMPAIGN IN SPONSORING AND
EFFECTIVELY FURTHERING RELIGIOUS BELIEFS BY ITS EDUCATIONAL
ARRANGEMENT. 

SEPARATION MEANS SEPARATION, NOT SOMETHING LESS.  JEFFERSON'S
METAPHOR IN DESCRIBING THE RELATION BETWEEN CHURCH AND STATE SPEAKS OF
A "WALL OF SEPARATION," NOT OF A FINE LINE EASILY OVERSTEPPED.  THE
PUBLIC SCHOOL IS AT ONCE THE SYMBOL OF OUR DEMOCRACY AND THE MOST
PERVASIVE MEANS FOR PROMOTING OUR COMMON DESTINY.  IN NO ACTIVITY OF
THE STATE IS IT MORE VITAL TO KEEP OUT DIVISIVE FORCES THAN IN ITS
SCHOOLS, TO AVOID CONFUSING, NOT TO SAY FUSING, WHAT THE CONSTITUTION
SOUGHT TO KEEP STRICTLY APART.  "THE GREAT AMERICAN PRINCIPLE OF
ETERNAL SEPARATION" - ELIHU ROOT'S PHRASE BEARS REPETITION - IS ONE OF
THE VITAL RELIANCES OF OUR CONSTITUTIONAL SYSTEM FOR ASSURING UNITIES
AMONG OUR PEOPLE STRONGER THAN OUR DIVERSITIES.  IT IS THE COURT'S DUTY
TO ENFORCE THIS PRINCIPLE IN ITS FULL INTEGRITY. 

WE RENEW OUR CONVICTION THAT "WE HAVE STAKED THE VERY EXISTENCE OF
OUR COUNTRY ON THE FAITH THAT COMPLETE SEPARATION BETWEEN THE STATE AND
RELIGION IS BEST FOR THE STATE AND BEST FOR RELIGION."  EVERSON V.
BOARD OF EDUCATION, 330 U.S. AT 59.  IF NOWHERE ELSE, IN THE RELATION
BETWEEN CHURCH AND STATE, "GOOD FENCES MAKE GOOD NEIGHBORS." 

FN1  FOR AN EXPOSITION OF THE RELIGIOUS ORIGINS OF AMERICAN EDUCATION,
SEE S. W. BROWN, THE SECULARIZATION OF AMERICAN EDUCATION (1912) CC. I,
II; KNIGHT, EDUCATION IN THE UNITED STATES (2D REV. ED. 1941) CC. III,
V; CUBBERLEY, PUBLIC EDUCATION IN THE UNITED STATES (1934) CC. II,
III.    FN2  SEE BOESE, PUBLIC EDUCATION IN THE CITY OF NEW YORK (1869)
C. XIV; HALL, RELIGIOUS EDUCATION IN THE PUBLIC SCHOOLS OF THE STATE
AND CITY OF NEW YORK (1914) CC. VI, VII; PALMER, THE NEW YORK PUBLIC
SCHOOL (1905) CC. VI, VII, X, XII.  AND SEE NEW YORK LAWS 1842, C. 150,
SEC. 14, AMENDED, NEW YORK LAWS 1844, C. 320, SEC. 12. 

FN3  S. M. SMITH, THE RELATION OF THE STATE TO RELIGIOUS EDUCATION IN
MASSACHUSETTS (1926) C. VII; CULVER, HORACE MANN AND RELIGION IN THE
MASSACHUSETTS PUBLIC SCHOOLS (1929). 

FN4  IT HAS BEEN SUGGESTED THAT SECULAR EDUCATION IN THIS COUNTRY IS
THE INEVITABLE "PRODUCT OF 'THE UTTER IMPOSSIBILITY OF HARMONIZING
MULTIFORM CREEDS.'"  T. W. M. MARSHALL, SECULAR EDUCATION IN ENGLAND
AND THE UNITED STATES, 1 AMERICAN CATHOLIC QUARTERLY REVIEW 278, 308. 
IT IS PRECISELY BECAUSE OF THIS "UTTER IMPOSSIBILITY" THAT THE FATHERS
PUT INTO THE CONSTITUTION THE PRINCIPLE OF COMPLETE "HANDSOFF," FOR A
PEOPLE AS RELIGIOUSLY HETEROGENEOUS AS OURS. 

FN5  SEE CUBBERLEY, PUBLIC EDUCATION IN THE UNITED STATES (1934) PP.
230 ET SEQ.; ZOLLMANN, THE RELATION OF CHURCH AND STATE, IN LOTZ AND
CRAWFORD, STUDIES IN RELIGIOUS EDUCATION (1931) 403, 418 ET SEQ.;
PAYSON SMITH, THE PUBLIC SCHOOLS AND RELIGIOUS EDUCATION, IN RELIGION
AND EDUCATION (SPERRY, EDITOR, 1945) PP. 32 ET SEQ.; ALSO MAHONEY, THE
RELATION OF THE STATE TO RELIGIOUS EDUCATION IN EARLY NEW YORK 1633
1825(1941) C. VI; MCLAUGHLIN, A HISTORY OF STATE LEGISLATION AFFECTING
PRIVATE ELEMENTARY AND SECONDARY SCHOOLS IN THE UNITED STATES, 1870
1945(1946) C. I; AND SEE NOTE 10, INFRA. 

FN6  PRESIDENT GRANT'S ANNUAL MESSAGE TO CONGRESS, DECEMBER 7, 1875,
4 CONG. REC. 175 ET SEQ.; AMES, THE PROPOSED AMENDMENTS TO THE
CONSTITUTION OF THE UNITED STATES DURING THE FIRST CENTURY OF ITS
HISTORY, H.R. DOC. NO. 353, PT. 2, 54TH CONG., 2D SESS., PP. 277-78. 
IN ADDITION TO THE FIRST PROPOSAL, "THE BLAINE AMENDMENT," FIVE OTHERS
TO SIMILAR EFFECT ARE CITED BY AMES.  THE REASON FOR THE FAILURE OF
THESE ATTEMPTS SEEMS TO HAVE BEEN IN PART THAT THE "PROVISIONS OF THE
STATE CONSTITUTIONS ARE IN ALMOST ALL INSTANCES ADEQUATE ON THIS
SUBJECT, AND NO AMENDMENT IS LIKELY TO BE SECURED."  ID. 

IN THE FORM IN WHICH IT PASSED THE HOUSE OF REPRESENTATIVES, THE
BLAINE AMENDMENT READ AS FOLLOWS:  "NO STATE SHALL MAKE ANY LAW
RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF; AND NO RELIGIOUS TEST SHALL EVER BE REQUIRED AS A
QUALIFICATION TO ANY OFFICE OR PUBLIC TRUST UNDER ANY STATE.  NO PUBLIC
PROPERTY, AND NO PUBLIC REVENUE OF, NOR ANY LOAN OF CREDIT BY OR UNDER
THE AUTHORITY OF, THE UNITED STATES, OR ANY STATE, TERRITORY, DISTRICT,
OR MUNICIPAL CORPORATION, SHALL BE APPROPRIATED TO, OR MADE OR USED
FOR, THE SUPPORT OF ANY SCHOOL, EDUCATIONAL OR OTHER INSTITUTION, UNDER
THE CONTROL OF ANY RELIGIOUS OR ANTI-RELIGIOUS SECT, ORGANIZATION, OR
DENOMINATION, OR WHEREIN THE PARTICULAR CREED OR TENETS OF ANY
RELIGIOUS OR ANTI-RELIGIOUS SECT, ORGANIZATION, OR DENOMINATION SHALL
BE TAUGHT.  AND NO SUCH PARTICULAR CREED OR TENETS SHALL BE READ OR
TAUGHT IN ANY SCHOOL OR INSTITUTION SUPPORTED IN WHOLE OR IN PART BY
SUCH REVENUE OR LOAN OF CREDIT; AND NO SUCH APPROPRIATION OR LOAN OF
CREDIT SHALL BE MADE TO ANY RELIGIOUS OR ANTI-RELIGIOUS SECT,
ORGANIZATION, OR DENOMINATION, OR TO PROMOTE ITS INTERESTS OR TENETS. 
THIS ARTICLE SHALL NOT BE CONSTRUED TO PROHIBIT THE READING OF THE
BIBLE IN ANY SCHOOL OR INSTITUTION; AND IT SHALL NOT HAVE THE EFFECT TO
IMPAIR RIGHTS OF PROPERTY ALREADY VESTED.  ...  " H. RES. 1, 44TH
CONG., 1ST SESS. (1876). 

FN7  SEE CONSTITUTIONS OF THE STATES AND UNITED STATES, III REPORT OF
THE NEW YORK STATE CONSTITUTIONAL CONVENTION COMMITTEE (1938) INDEX,
PP. 1766-67. 

FN8  IT IS WORTHY OF INTEREST THAT ANOTHER FAMOUS AMERICAN LAWYER,
AND INDEED ONE OF THE MOST DISTINGUISHED OF AMERICAN JUDGES, JEREMIAH
S. BLACK, EXPRESSED SIMILAR VIEWS NEARLY FORTY YEARS BEFORE MR. ROOT:
"THE MANIFEST OBJECT OF THE MEN WHO FRAMED THE INSTITUTIONS OF THIS
COUNTRY, WAS TO HAVE A STATE WITHOUT RELIGION, AND A CHURCH WITHOUT
POLITICS - THAT IS TO SAY, THEY MEANT THAT ONE SHOULD NEVER BE USED AS
AN ENGINE FOR ANY PURPOSE OF THE OTHER  ...  OUR FATHERS SEEM TO HAVE
BEEN PERFECTLY SINCERE IN THEIR BELIEF THAT THE MEMBERS OF THE CHURCH
WOULD BE MORE PATRIOTIC, AND THE CITIZENS OF THE STATE MORE RELIGIOUS,
BY KEEPING THEIR RESPECTIVE FUNCTIONS ENTIRELY SEPARATE.  FOR THAT
REASON THEY BUILT UP A WALL OF COMPLETE AND PERFECT PARTITION BETWEEN
THE TWO."  FROM RELIGIOUS LIBERTY (1856) IN BLACK, ESSAYS AND SPEECHES
(1886) 51, 53; CF. BRIGANCE, JEREMIAH SULLIVAN BLACK (1934).  WHILE
JEREMIAH S. BLACK AND ELIHU ROOT HAD MANY THINGS IN COMMON, THERE WERE
ALSO IMPORTANT DIFFERENCES BETWEEN THEM, PERHAPS BEST ILLUSTRATED BY
THE FACT THAT ONE BECAME SECRETARY OF STATE TO PRESIDENT BUCHANAN, THE
OTHER TO THEODORE ROOSEVELT.  THAT TWO MEN, WITH SUCH DIFFERENT
POLITICAL ALIGNMENT, SHOULD HAVE SHARED IDENTIC VIEWS ON A MATTER SO
BASIC TO THE WELL-BEING OF OUR AMERICAN DEMOCRACY AFFORDS STRIKING
PROOF OF THE RESPECT TO BE ACCORDED TO THAT PRINCIPLE. 

FN9  25 STAT. 676, 677, APPLICABLE TO NORTH DAKOTA, SOUTH DAKOTA,
MONTANA AND WASHINGTON, REQUIRED THAT THE CONSTITUTIONAL CONVENTIONS OF
THOSE STATES "PROVIDE, BY ORDINANCES IRREVOCABLE WITHOUT THE CONSENT OF
THE UNITED STATES AND THE PEOPLE OF SAID STATES  ...  FOR THE
ESTABLISHMENT AND MAINTENANCE OF SYSTEMS OF PUBLIC SCHOOLS, WHICH SHALL
BE OPEN TO ALL THE CHILDREN OF SAID STATES, AND FREE FROM SECTARIAN
CONTROL  ...  "  THE SAME PROVISION WAS CONTAINED IN THE ENABLING ACT
FOR UTAH, 28 STAT. 107, 108; OKLAHOMA, 34 STAT. 267, 270; NEW MEXICO
AND ARIZONA, 36 STAT. 557, 559, 570.  IDAHO AND WYOMING WERE ADMITTED
AFTER ADOPTION OF THEIR CONSTITUTIONS; THAT OF WYOMING CONTAINED AN
IRREVOCABLE ORDINANCE IN THE SAME TERMS.  WYOMING CONSTITUTION, 1889,
ORDINANCES, SEC. 5.  THE CONSTITUTION OF IDAHO, WHILE IT CONTAINED NO
IRREVOCABLE ORDINANCE, HAD A PROVISION EVEN MORE EXPLICIT IN ITS
ESTABLISHMENT OF SEPARATION.  IDAHO CONSTITUTION, 1889, ART. IX, SEC.
5. 

FN10  SEE, E.G., THE NEW YORK EXPERIENCE, INCLUDING, INTER ALIA, THE
FAMOUS HUGHES CONTROVERSY OF 1840-42, THE CONFLICT CULMINATING IN THE
CONSTITUTIONAL CONVENTION OF 1894, AND THE ATTEMPTS TO RESTORE AID TO
PAROCHIAL SCHOOLS BY REVISION OF THE NEW YORK CITY CHARTER, IN 1901,
AND AT THE STATE CONSTITUTIONAL CONVENTION OF 1938.  SEE MCLAUGHLIN, A
HISTORY OF STATE LEGISLATION AFFECTING PRIVATE ELEMENTARY AND SECONDARY
SCHOOLS IN THE UNITED STATES, 1870-1945(1946) PP. 119-25; MAHONEY, THE
RELATION OF THE STATE TO RELIGIOUS EDUCATION IN EARLY NEW YORK 1633
1825(1941) C. VI; HALL, RELIGIOUS EDUCATION IN THE PUBLIC SCHOOLS OF
THE STATE AND THE CITY OF NEW YORK (1914) PP. 46-47; BOESE, PUBLIC
EDUCATION IN THE CITY OF NEW YORK (1869) C. XIV; COMPARE NEW YORK LAWS
1901, VOL. 3, SEC. 1152, P. 492, WITH AMENDMENT, ID., P. 668; SEE
NICHOLAS MURRAY BUTLER, RELIGION AND EDUCATION (EDITORIAL) IN 22
EDUCATIONAL REVIEW 101, JUNE, 1901; NEW YORK TIMES, APRIL 8, 1901, P.
1, COL. 1; APRIL 9, 1901, P. 2, COL. 5; APRIL 19, 1901, P. 2, COL. 2;
APRIL 21, 1901, P. 1, COL. 3; EDITORIAL, APRIL 22, 1901, P. 6, COL. 1. 

COMPARE S. 2499, 79TH CONG., 2D SESS., PROVIDING FOR FEDERAL AID TO
EDUCATION, AND THE CONTROVERSY ENGENDERED OVER THE INCLUSION IN THE AID
PROGRAM OF SECTARIAN SCHOOLS, FULLY DISCUSSED IN, E.G., "THE NATION'S
SCHOOLS," JANUARY THROUGH JUNE, 1947. 

FN11  FOR SURVEYS OF THE DEVELOPMENT OF PRIVATE RELIGIOUS EDUCATION,
SEE, E.G., A. A. BROWN, A HISTORY OF RELIGIOUS EDUCATION IN RECENT
TIMES (1923); ATHEARN, RELIGIOUS EDUCATION AND AMERICAN DEMOCRACY
(1917); BURNS AND KOHLBRENNER, A HISTORY OF CATHOLIC EDUCATION IN THE
UNITED STATES (1937); LOTZ AND CRAWFORD, STUDIES IN RELIGIOUS EDUCATION
(1931) PARTS I AND IV. 

FN12  REFERENCE SHOULD BE MADE TO JACOB GOULD SCHURMAN, WHO IN 1903
PROPOSED A PLAN BEARING CLOSE RESEMBLANCE TO THAT OF CHAMPAIGN.  SEE
SYMPOSIUM, 75 THE OUTLOOK 635, 636, NOVEMBER 14, 1903; CROOKER,
RELIGIOUS FREEDOM IN AMERICAN EDUCATION (1903) PP. 39 ET SEQ. 

FN13  FOR THE TEXT OF THE RESOLUTION, A BRIEF IN ITS SUPPORT, AS WELL
AS AN EXPOSITION OF SOME OF THE OPPOSITION IT INSPIRED, SEE WENNER'S
BOOK, RELIGIOUS EDUCATION AND THE PUBLIC SCHOOL (REV. ED. 1913). 

FN14  THE FRENCH EXAMPLE IS CITED NOT ONLY BY WENNER BUT ALSO BY
NICHOLAS MURRAY BUTLER, WHO THOUGHT RELEASED TIME WAS "RESTORING THE
AMERICAN SYSTEM IN THE STATE OF NEW YORK."  THE PLACE OF RELIGIOUS
INSTRUCTION IN OUR EDUCATIONAL SYSTEM, 7 VITAL SPEECHES 167, 168(NOV. 
28, 1940); SEE ALSO REPORT OF THE PRESIDENT OF COLUMBIA UNIVERSITY,
1934, PP. 22-24.  IT IS IMPORTANT TO NOTE, HOWEVER, THAT THE FRENCH
PRACTICE MUST BE VIEWED AS THE RESULT OF THE STRUGGLE TO EMANCIPATE THE
FRENCH SCHOOLS FROM CONTROL BY THE CHURCH.  THE LEADERS OF THIS
REVOLUTION, MEN LIKE PAUL BERT, FERDINAND BUISSON, AND JULES FERRY,
AGREED TO THIS MEASURE AS ONE PART OF A GREAT STEP TOWARDS, RATHER THAN
A RETREAT FROM, THE PRINCIPLE OF SEPARATION.  THE HISTORY OF THESE
EVENTS IS DESCRIBED IN MUZZEY, STATE, CHURCH, AND SCHOOL IN FRANCE, THE
SCHOOL REVIEW, MARCH THROUGH JUNE, 1911. 

IN EFFECT, MOREOVER, THE FRENCH PRACTICE DIFFERS IN CRUCIAL RESPECTS
FROM BOTH THE WENNER PROPOSAL AND THE CHAMPAIGN SYSTEM.  THE LAW OF
1882 PROVIDED THAT "PUBLIC ELEMENTARY SCHOOLS WILL BE CLOSED ONE DAY A
WEEK IN ADDITION TO SUNDAY IN ORDER TO PERMIT PARENTS, IF THEY SO
DESIRE, TO HAVE THEIR CHILDREN GIVEN RELIGIOUS INSTRUCTION OUTSIDE OF
SCHOOL BUILDINGS."  LAW NO. 11,696, MARCH 28, 1882, BULLETIN DES LOIS,
NO. 690.  THIS THEN APPROXIMATES THAT ASPECT OF RELEASED TIME GENERALLY
KNOWN AS "DISMISSED TIME."  NO CHILDREN WENT TO SCHOOL ON THAT DAY, AND
THE PUBLIC SCHOOL WAS THEREFORE NOT AN ALTERNATIVE USED TO IMPEL THE
CHILDREN TOWARDS THE RELIGIOUS SCHOOL.  THE RELIGIOUS EDUCATION WAS
GIVEN "OUTSIDE OF SCHOOL BUILDINGS." 

THE VICHY GOVERNMENT ATTEMPTED TO INTRODUCE A PROGRAM OF RELIGIOUS
INSTRUCTION WITHIN THE PUBLIC SCHOOL SYSTEM REMARKABLY SIMILAR TO THAT
IN EFFECT IN CHAMPAIGN.  THE PROPOSAL WAS DEFEATED BY INTENSE
OPPOSITION WHICH INCLUDED THE PROTEST OF THE FRENCH CLERGY, WHO
APPARENTLY FEARED STATE CONTROL OF THE CHURCH.  SEE SCHWARTZ, RELIGIOUS
INSTRUCTION UNDER PETAIN, 58 CHRISTIAN CENTURY 1170, SEPT. 24, 1941. 

FN15  OF THE MANY EXPOSITIONS OF THE GARY PLAN, SEE, E.G., A. A.
BROWN, THE WEEK-DAY CHURCH SCHOOLS OF GARY, INDIANA, 11 RELIGIOUS
EDUCATION 5(1916); WIRT, THE GARY PUBLIC SCHOOLS AND THE CHURCHES, ID.
AT 221(1916). 

FN16  SEE THE 1947 YEARBOOK, INTERNATIONAL COUNCIL OF RELIGIOUS
EDUCATION, P. 76; ALSO NEW YORK TIMES, SEPTEMBER 21, 1947, P. 22, COL.
1. 

FN17  RESPECTS IN WHICH PROGRAMS DIFFER INCLUDE, FOR EXAMPLE, THE
AMOUNT OF SUPERVISION BY THE PUBLIC SCHOOL OF ATTENDANCE AND
PERFORMANCE IN THE RELIGIOUS CLASS, OF THE COURSE OF STUDY, OF THE
SELECTION OF TEACHERS; METHODS OF ENROLMENT AND DISMISSAL FROM THE
SECULAR CLASSES; THE AMOUNT OF SCHOOL TIME DEVOTED TO OPERATION OF THE
PROGRAM; THE EXTENT TO WHICH SCHOOL PROPERTY AND ADMINISTRATIVE
MACHINERY ARE INVOLVED; THE EFFECT ON THE PUBLIC SCHOOL PROGRAM OF THE
INTRODUCTION OF "RELEASED TIME"; THE PROPORTION OF STUDENTS WHO SEEK TO
BE EXCUSED; THE EFFECT OF THE PROGRAM ON NON-PARTICIPANTS; THE AMOUNT
AND NATURE OF THE PUBLICITY FOR THE PROGRAM IN THE PUBLIC SCHOOLS. 

THE STUDIES OF DETAIL IN "RELEASED TIME" PROGRAMS ARE VOLUMINOUS. 
MOST OF THESE MAY BE FOUND IN THE ISSUES OF SUCH PERIODICALS AS THE
INTERNATIONAL JOURNAL OF RELIGIOUS EDUCATION, RELIGIOUS EDUCATION, AND
CHRISTIAN CENTURY.  FOR SOME OF THE MORE COMPREHENSIVE STUDIES FOUND
ELSEWHERE, SEE DAVIS, WEEKDAY CLASSES IN RELIGIOUS EDUCATION, U.S.
OFFICE OF EDUCATION BULLETIN 1941, NO. 3; GORHAM, A STUDY OF THE STATUS
OF WEEKDAY CHURCH SCHOOLS IN THE UNITED STATES (1934); LOTZ, THE
WEEKDAY CHURCH SCHOOL, IN LOTZ AND CRAWFORD, STUDIES IN RELIGIOUS
EDUCATION (1931) C. XII; FORSYTH, WEEK-DAY CHURCH SCHOOLS (1930);
SETTLE, THE WEEKDAY CHURCH SCHOOL, EDUCATIONAL BULLETIN NO. 601 OF THE
INTERNATIONAL COUNCIL OF RELIGIOUS EDUCATION (1930); SHAVER, PRESENT
DAY TRENDS IN RELIGIOUS EDUCATION (1928) CC. VII, VIII; GOVE, RELIGIOUS
EDUCATION ON PUBLIC SCHOOL TIME (1926). 

FN18  IT DESERVES NOTICE THAT IN DISCUSSING WITH THE RELATOR HER
SON'S INABILITY TO GET ALONG WITH HIS CLASSMATES, ONE OF HIS TEACHERS
SUGGESTED THAT "ALLOWING HIM TO TAKE THE RELIGIOUS EDUCATION COURSE
MIGHT HELP HIM TO BECOME A MEMBER OF THE GROUP." 

FN19  THE DIVERGENT VIEWS EXPRESSED IN THE BRIEFS SUBMITTED HERE ON
BEHALF OF VARIOUS RELIGIOUS ORGANIZATIONS, AS AMICI CURIAE, IN
THEMSELVES SUGGEST THAT THE MOVEMENT HAS BEEN A DIVISIVE AND NOT AN
IRENIC INFLUENCE IN THE COMMUNITY:  THE AMERICAN UNITARIAN ASSOCIATION;
THE GENERAL CONFERENCE OF SEVENTH DAY ADVENTISTS; THE JOINT CONFERENCE
COMMITTEE ON PUBLIC RELATIONS SET UP BY THE SOUTHERN BAPTIST
CONVENTION, THE NORTHERN BAPTIST CONVENTION, THE NATIONAL BAPTIST
CONVENTION INC., AND THE NATIONAL BAPTIST CONVENTION; THE PROTESTANT
COUNCIL OF THE CITY OF NEW YORK; AND THE SYNAGOGUE COUNCIL OF AMERICA
AND NATIONAL COMMUNITY RELATIONS ADVISORY COUNCIL. 

FN20  THERE IS A PROLIFIC LITERATURE ON THE EDUCATIONAL, SOCIAL AND
RELIGIOUS MERITS OF THE "RELEASED TIME" MOVEMENT.  IN SUPPORT OF
"RELEASED TIME" THE FOLLOWING MAY BE MENTIONED:  THE INTERNATIONAL
COUNCIL OF RELIGIOUS EDUCATION, AND PARTICULARLY THE WRITINGS OF DR.
ERWIN L. SHAVER, FOR SOME YEARS DIRECTOR OF ITS DEPARTMENT OF WEEK-DAY
RELIGIOUS EDUCATION, IN PUBLICATIONS OF THE COUNCIL AND IN NUMEROUS
ISSUES OF THE INTERNATIONAL JOURNAL OF RELIGIOUS EDUCATION (E.G., THEY
REACH ONE-THIRD, DEC., 1943, P. 11; WEEKDAY RELIGIOUS EDUCATION TODAY,
JAN., 1944, P. 6), AND RELIGIOUS EDUCATION (E.G., SURVEY OF WEEK-DAY
RELIGIOUS EDUCATION, FEB., 1922, P. 51; THE MOVEMENT FOR WEEKDAY
RELIGIOUS EDUCATION, JAN.-FEB., 1946, P. 6); SEE ALSO INFORMATION
SERVICE, FEDERAL COUNCIL OF CHURCHES OF CHRIST, MAY 29, 1943.  SEE ALSO
CUTTON, ANSWERING THE ARGUMENTS, THE INTERNATIONAL JOURNAL OF RELIGIOUS
EDUCATION, JUNE, 1930, P. 9, AND RELEASED TIME, ID., SEPT., 1942, P.
12; HAUSER, "HANDS OFF THE PUBLIC SCHOOL?", RELIGIOUS EDUCATION, MAR.
APR., 1942, P. 99; COLLINS, RELEASE TIME FOR RELIGIOUS INSTRUCTION,
NATIONAL CATHOLIC EDUCATION ASSOCIATION BULLETIN, MAY, 1945, PP. 21, 27
28; WEIGLE, PUBLIC EDUCATION AND RELIGION, RELIGIOUS EDUCATION, APR.
JUNE, 1940, P. 67; NICHOLAS MURRAY BUTLER, THE PLACE OF RELIGIOUS
INSTRUCTION IN OUR EDUCATIONAL SYSTEM, 7 VITAL SPEECHES 167(NOV.  28,
1940); HOWLETT, RELEASED TIME FOR RELIGIOUS EDUCATION IN NEW YORK CITY,
64 EDUCATION 523, MAY, 1944; BLAIR, A CASE FOR THE WEEKDAY CHURCH
SCHOOL, 7 FRONTIERS OF DEMOCRACY 75, DEC. 15, 1940; CF. ALLRED, LEGAL
ASPECTS OF RELEASE TIME (NATIONAL CATHOLIC WELFARE CONFERENCE, 1947). 
FAVORABLE VIEWS ARE ALSO CITED IN THE STUDIES IN NOTE 17, SUPRA.  MANY
NOT OPPOSED TO "RELEASED TIME" HAVE DECLARED IT "HARDLY ENOUGH" OR
"PITIFULLY INADEQUATE."  E.G., FLEMING, GOD IN OUR PUBLIC SCHOOLS (2D
ED. 1944), PP. 80-86; HOWLETT, RELEASED TIME FOR RELIGIOUS EDUCATION IN
NEW YORK CITY, RELIGIOUS EDUCATION, MAR.-APR., 1942, P. 104; CAVERT,
POINTS OF TENSION BETWEEN CHURCH AND STATE IN AMERICA TODAY, IN CHURCH
AND STATE IN THE MODERN WORLD (1937) 161, 168; F. E. JOHNSON, THE
CHURCH AND SOCIETY (1935) 125; HUBNER, PROFESSIONAL ATTITUDES TOWARD
RELIGION IN THE PUBLIC SCHOOLS OF THE UNITED STATES SINCE 1900(1944)
108-109, 113; CF. RYAN, A PROTESTANT EXPERIMENT IN RELIGIOUS EDUCATION,
THE CATHOLIC WORLD, JUNE, 1922; ELLIOTT, ARE WEEKDAY CHURCH SCHOOLS THE
SOLUTION?, THE INTERNATIONAL JOURNAL OF RELIGIOUS EDUCATION, NOV.,
1940, P. 8; ELLIOTT, REPORT OF THE DISCUSSION, RELIGIOUS EDUCATION,
JULY-SEPT., 1940, P. 158. 

FOR OPPOSING VIEWS, SEE V.T. THAYER, RELIGION IN PUBLIC EDUCATION
(1947) CC. VII, VIII; MOEHLMAN, THE CHURCH AS EDUCATOR (1947) C. X;
CHAVE, A FUNCTIONAL APPROACH TO RELIGIOUS EDUCATION (1947) 104-107; A.
W. JOHNSON, THE LEGAL STATUS OF CHURCH-STATE RELATIONSHIPS IN THE
UNITED STATES (1934) 129-130; NEWMAN, THE SECTARIAN INVASION OF OUR
PUBLIC SCHOOLS (1925).  SEE ALSO PAYSON SMITH, THE PUBLIC SCHOOLS AND
RELIGIOUS EDUCATION, IN RELIGION AND EDUCATION (SPERRY, EDITOR, 1945)
32, 42-47; HERRICK, RELIGION IN THE PUBLIC SCHOOLS OF AMERICA, 46
ELEMENTARY SCHOOL JOURNAL 119, NOV., 1945; KALLEN, CHURCHMEN'S CLAIMS
ON THE PUBLIC SCHOOL, THE NATION'S SCHOOLS, MAY, 1942, P. 49; JUNE,
1942, P. 52.  AND CF. JOHN DEWEY, RELIGION IN OUR SCHOOLS (1908),
REPRINTED IN 2 CHARACTERS AND EVENTS (1929) 504, 508, 514.  "RELEASED
TIME" WAS INTRODUCED IN THE PUBLIC SCHOOLS OF THE CITY OF NEW YORK OVER
THE OPPOSITION OF ORGANIZATIONS LIKE THE PUBLIC EDUCATION ASSOCIATION
AND THE UNITED PARENTS ASSOCIATIONS. 

THE ARGUMENTS AND SOURCES PRO AND CON ARE COLLECTED IN HUBNER,
PROFESSIONAL ATTITUDES TOWARD RELIGION IN THE PUBLIC SCHOOLS IN THE
UNITED STATES SINCE 1900(1944) 94 ET SEQ. AND SEE THE SYMPOSIA,
TEACHING RELIGION IN A DEMOCRACY, THE INTERNATIONAL JOURNAL OF
RELIGIOUS EDUCATION, NOV., 1940, PP. 6-16; THE AIMS OF WEEK-DAY
RELIGIOUS EDUCATION, RELIGIOUS EDUCATION, FEB., 1922, P. 11; RELEASED
TIME IN NEW YORK CITY, ID., JAN.-FEB., 1943, P. 15; PROGRESS IN WEEK
DAY RELIGIOUS EDUCATION, ID., JAN.-FEB., 1946, P. 6; CAN OUR PUBLIC
SCHOOLS DO MORE ABOUT RELIGION?, 125 JOURNAL OF EDUCATION 245, NOV.,
1942, ID. AT 273, DEC., 1942; RELIGIOUS INSTRUCTION ON SCHOOL TIME, 7
FRONTIERS OF DEMOCRACY 72-77, DEC. 15, 1940; AND THE ARTICLES IN 64
EDUCATION 519 ET SEQ., MAY, 1944. 

FN21  SEE NOTE 14, SUPRA.  INDICATIONS ARE THAT "DISMISSED TIME" IS
USED IN AN INCONSIDERABLE NUMBER OF THE COMMUNITIES EMPLOYING RELEASED
TIME.  DAVIS, WEEKDAY CLASSES IN RELIGIOUS EDUCATION, U.S. OFFICE OF
EDUCATION BULLETIN 1941, NO. 3, P. 22; SHAVER, THE MOVEMENT FOR WEEKDAY
RELIGIOUS EDUCATION, RELIGIOUS EDUCATION, JAN.-FEB., 1946, PP. 6, 9. 

MR. JUSTICE JACKSON, CONCURRING. 

I JOIN THE OPINION OF MR. JUSTICE FRANKFURTER, AND CONCUR IN THE
RESULT REACHED BY THE COURT, BUT WITH THESE RESERVATIONS:  I THINK IT
IS DOUBTFUL WHETHER THE FACTS OF THIS CASE ESTABLISH JURISDICTION IN
THIS COURT, BUT IN ANY EVENT THAT WE SHOULD PLACE SOME BOUNDS ON THE
DEMANDS FOR INTERFERENCE WITH LOCAL SCHOOLS THAT WE ARE EMPOWERED OR
WILLING TO ENTERTAIN.  I MAKE THESE RESERVATIONS A MATER OF RECORD IN
VIEW OF THE NUMBER OF LITIGATIONS LIKELY TO BE STARTED AS A RESULT OF
THIS DECISION. 

A FEDERAL COURT MAY INTERFERE WITH LOCAL SCHOOL AUTHORITIES ONLY WHEN
THEY INVADE EITHER A PERSONAL LIBERTY OR A PROPERTY RIGHT PROTECTED BY
THE FEDERAL CONSTITUTION.  ORDINARILY THIS WILL COME ABOUT IN EITHER OF
TWO WAYS: 

FIRST.  WHEN A PERSON IS REQUIRED TO SUBMIT TO SOME RELIGIOUS RITE OR
INSTRUCTION OR IS DEPRIVED OR THREATENED WITH DEPRIVATION OF HIS
FREEDOM FOR RESISTING SUCH UNCONSTITUTIONAL REQUIREMENT.  WE MAY THEN
SET HIM FREE OR ENJOIN HIS PROSECUTION.  TYPICAL OF SUCH CASES WAS WEST
VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624.  THERE
PENALTIES WERE THREATENED AGAINST BOTH PARENT AND CHILD FOR REFUSAL OF
THE LATTER TO PERFORM A COMPULSORY RITUAL WHICH OFFENDED HIS
CONVICTIONS.  WE INTERVENED TO SHIELD THEM AGAINST THE PENALTY.  BUT
HERE, COMPLAINANT'S SON MAY JOIN RELIGIOUS CLASSES IF HE CHOOSES AND IF
HIS PARENTS SO REQUEST, OR HE MAY STAY OUT OF THEM.  THE COMPLAINT IS
THAT WHEN OTHERS JOIN AND HE DOES NOT, IT SETS HIM APART AS A
DISSENTER, WHICH IS HUMILIATING.  EVEN ADMITTING THIS TO BE TRUE, IT
MAY BE DOUBTED WHETHER THE CONSTITUTION WHICH, OF COURSE, PROTECTS THE
RIGHT TO DISSENT, CAN BE CONSTRUED ALSO TO PROTECT ONE FROM THE
EMBARRASSMENT THAT ALWAYS ATTENDS NONCONFORMITY, WHETHER IN RELIGION,
POLITICS, BEHAVIOR OR DRESS.  SINCE NO LEGAL COMPULSION IS APPLIED TO
COMPLAINANT'S SON HIMSELF AND NO PENALTY IS IMPOSED OR THREATENED FROM
WHICH WE MAY RELIEVE HIM, WE CAN HARDLY BASE JURISDICTION ON THIS
GROUND. 

SECOND.  WHERE A COMPLAINANT IS DEPRIVED OF PROPERTY BY BEING TAXED
FOR UNCONSTITUTIONAL PURPOSES, SUCH AS DIRECTLY OR INDIRECTLY TO
SUPPORT A RELIGIOUS ESTABLISHMENT.  WE CAN PROTECT A TAXPAYER AGAINST
SUCH A LEVY.  THIS WAS THE EVERSON CASE, 330 U.S. 1, AS I SAW IT THEN
AND SEE IT NOW.  IT WAS COMPLAINED IN THAT CASE THAT THE SCHOOL
TREASURER DREW A CHECK ON PUBLIC FUNDS TO REIMBURSE PARENTS FOR A
CHILD'S BUS FARE IF HE WENT TO A CATHOLIC PAROCHIAL SCHOOL OR A PUBLIC
SCHOOL, BUT NOT IF HE WENT TO ANY OTHER PRIVATE OR DENOMINATIONAL
SCHOOL.  REFERENCE TO THE RECORD IN THAT CASE WILL SHOW THAT THE SCHOOL
DISTRICT WAS NOT OPERATING BUSSES, SO IT WAS NOT A QUESTION OF ALLOWING
CATHOLIC CHILDREN TO RIDE PUBLICLY OWNED BUSSES ALONG WITH OTHERS, IN
THE INTERESTS OF THEIR SAFETY, HEALTH OR MORALS.  THE CHILD HAD TO
TRAVEL TO AND FROM PAROCHIAL SCHOOL ON COMMERCIAL BUSSES LIKE OTHER
PAYING PASSENGERS AND ALL OTHER SCHOOL CHILDREN, AND HE WAS EXPOSED TO
THE SAME DANGERS.  IF IT COULD, IN FAIRNESS, HAVE BEEN SAID THAT THE
EXPENDITURE WAS A MEASURE FOR THE PROTECTION OF THE SAFETY, HEALTH OR
MORALS OF YOUNGSTERS, IT WOULD NOT MERELY HAVE BEEN CONSTITUTIONAL TO
GRANT IT; IT WOULD HAVE BEEN UNCONSTITUTIONAL TO REFUSE IT TO ANY CHILD
MERELY BECAUSE HE WAS A CATHOLIC.  BUT IN THE EVERSON CASE THERE WAS A
DIRECT, SUBSTANTIAL AND MEASURABLE BURDEN ON THE COMPLAINANT AS A
TAXPAYER TO RAISE FUNDS THAT WERE USED TO SUBSIDIZE TRANSPORTATION TO
PAROCHIAL SCHOOLS.  HENCE, WE HAD JURISDICTION TO EXAMINE THE
CONSTITUTIONALITY OF THE LEVY AND TO PROTECT AGAINST IT IF A MAJORITY
HAD AGREED THAT THE SUBSIDY FOR TRANSPORTATION WAS UNCONSTITUTIONAL. 

IN THIS CASE, HOWEVER, ANY COST OF THIS PLAN TO THE TAXPAYERS IS
INCALCULABLE AND NEGLIGIBLE.  IT CAN BE ARGUED, PERHAPS, THAT RELIGIOUS
CLASSES ADD SOME WEAR AND TEAR ON PUBLIC BUILDINGS AND THAT THEY SHOULD
BE CHARGED WITH SOME EXPENSE FOR HEAT AND LIGHT, EVEN THOUGH THE
SESSIONS DEVOTED TO RELIGIOUS INSTRUCTION DO NOT ADD TO THE LENGTH OF
THE SCHOOL DAY.  BUT THE COST IS NEITHER SUBSTANTIAL NOR MEASURABLE,
AND NO ONE SERIOUSLY CAN SAY THAT THE COMPLAINANT'S TAX BILL HAS BEEN
PROVED TO BE INCREASED BECAUSE OF THIS PLAN.  I THINK IT IS DOUBTFUL
WHETHER THE TAXPAYER IN THIS CASE HAS SHOWN ANY SUBSTANTIAL PROPERTY
INJURY. 

IF, HOWEVER, JURISDICTION IS FOUND TO EXIST, IT IS IMPORTANT THAT WE
CIRCUMSCRIBE OUR DECISION WITH SOME CARE.  WHAT IS ASKED IS NOT A
DEFENSIVE USE OF JUDICIAL POWER TO SET ASIDE A TAX LEVY OR REVERSE A
CONVICTION, OR TO ENJOIN THREATS OF PROSECUTION OR TAXATION.  THE
RELIEF DEMANDED IN THIS CASE IS THE EXTRAORDINARY WRIT OF MANDAMUS TO
TELL THE LOCAL BOARD OF EDUCATION WHAT IT MUST DO.  THE PRAYER FOR
RELIEF IS THAT A WRIT ISSUE AGAINST THE BOARD OF EDUCATION "ORDERING IT
TO IMMEDIATELY ADOPT AND ENFORCE RULES AND REGULATIONS PROHIBITING ALL
INSTRUCTION IN AND TEACHING OF RELIGIOUS EDUCATION IN ALL PUBLIC
SCHOOLS  ...  AND IN ALL PUBLIC SCHOOL HOUSES AND BUILDINGS IN SAID
DISTRICT WHEN OCCUPIED BY PUBLIC SCHOOLS."  THE PLAINTIFF, AS SHE HAS
EVERY RIGHT TO BE, IS AN AVOWED ATHEIST.  WHAT SHE HAS ASKED OF THE
COURTS IS THAT THEY NOT ONLY END THE "RELEASED TIME" PLAN BUT ALSO BAN
EVERY FORM OF TEACHING WHICH SUGGESTS OR RECOGNIZES THAT THERE IS A
GOD.  SHE WOULD BAN ALL TEACHING OF THE SCRIPTURES.  SHE ESPECIALLY
MENTIONS AS AN EXAMPLE OF INVASION OF HER RIGHTS "HAVING PUPILS LEARN
AND RECITE SUCH STATEMENTS AS, 'THE LORD IS MY SHEPHERD, I SHALL NOT
WANT.'"  AND SHE OBJECTS TO TEACHING THAT THE KING JAMES VERSION OF THE
BIBLE "IS CALLED THE CHRISTIAN'S GUIDE BOOK, THE HOLY WRIT AND THE WORD
OF GOD," AND MANY OTHER SIMILAR MATTERS.  THIS COURT IS DIRECTING THE
ILLINOIS COURTS GENERALLY TO SUSTAIN PLAINTIFF'S COMPLAINT WITHOUT
EXCEPTION OF ANY OF THESE GROUNDS OF COMPLAINT, WITHOUT DISCRIMINATING
BETWEEN THEM AND WITHOUT LAYING DOWN ANY STANDARDS TO DEFINE THE LIMITS
OF THE EFFECT OF OUR DECISION. 

TO ME, THE SWEEP AND DETAIL OF THESE COMPLAINTS IS A DANGER SIGNAL
WHICH WARNS OF THE KIND OF LOCAL CONTROVERSY WE WILL BE REQUIRED TO
ARBITRATE IF WE DO NOT PLACE APPROPRIATE LIMITATION ON OUR DECISION AND
EXACT STRICT COMPLIANCE WITH JURISDICTIONAL REQUIREMENTS.  AUTHORITIES
LIST 256 SEPARATE AND SUBSTANTIAL RELIGIOUS BODIES TO EXIST IN THE
CONTINENTAL UNITED STATES.  EACH OF THEM, THROUGH THE SUIT OF SOME
DISCONTENTED BUT UNPENALIZED AND UNTAXED REPRESENTATIVE, HAS AS GOOD A
RIGHT AS THIS PLAINTIFF TO DEMAND THAT THE COURTS COMPEL THE SCHOOLS TO
SIFT OUT OF THEIR TEACHING EVERYTHING INCONSISTENT WITH ITS DOCTRINES. 
IF WE ARE TO ELIMINATE EVERYTHING THAT IS OBJECTIONABLE TO ANY OF THESE
WARRING SECTS OR INCONSISTENT WITH ANY OF THEIR DOCTRINES, WE WILL
LEAVE PUBLIC EDUCATION IN SHREDS.  NOTHING BUT EDUCATIONAL CONFUSION
AND A DISCREDITING OF THE PUBLIC SCHOOL SYSTEM CAN RESULT FROM
SUBJECTING IT TO CONSTANT LAW SUITS. 

WHILE WE MAY AND SHOULD END SUCH FORMAL AND EXPLICIT INSTRUCTION AS
THE CHAMPAIGN PLAN AND CAN AT ALL TIMES PROHIBIT TEACHING OF CREED AND
CATECHISM AND CEREMONIAL AND CAN FORBID FORTHRIGHT PROSELYTING IN THE
SCHOOLS, I THINK IT REMAINS TO BE DEMONSTRATED WHETHER IT IS POSSIBLE,
EVEN IF DESIRABLE, TO COMPLY WITH SUCH DEMANDS AS PLAINTIFF'S
COMPLETELY TO ISOLATE AND CAST OUT OF SECULAR EDUCATION ALL THAT SOME
PEOPLE MAY REASONABLY REGARD AS RELIGIOUS INSTRUCTION.  PERHAPS
SUBJECTS SUCH AS MATHEMATICS, PHYSICS OR CHEMISTRY ARE, OR CAN BE,
COMPLETELY SECULARIZED.  BUT IT WOULD NOT SEEM PRACTICAL TO TEACH
EITHER PRACTICE OR APPRECIATION OF THE ARTS IF WE ARE TO FORBID
EXPOSURE OF YOUTH TO ANY RELIGIOUS INFLUENCES.  MUSIC WITHOUT SACRED
MUSIC, ARCHITECTURE MINUS THE CATHEDRAL, OR PAINTING WITHOUT THE
SCRIPTURAL THEMES WOULD BE ECCENTRIC AND INCOMPLETE, EVEN FROM A
SECULAR POINT OF VIEW.  YET THE INSPIRATIONAL APPEAL OF RELIGION IN
THESE GUISES IS OFTEN STRONGER THAN IN FORTHRIGHT SERMON.  EVEN SUCH A
"SCIENCE" AS BIOLOGY RAISES THE ISSUE BETWEEN EVOLUTION AND CREATION AS
AN EXPLANATION OF OUR PRESENCE ON THIS PLANET.  CERTAINLY A COURSE IN
ENGLISH LITERATURE THAT OMITTED THE BIBLE AND OTHER POWERFUL USES OF
OUR MOTHER TONGUE FOR RELIGIOUS ENDS WOULD BE PRETTY BARREN.  AND I
SHOULD SUPPOSE IT IS A PROPER, IF NOT AN INDISPENSABLE, PART OF
PREPARATION FOR A WORLDLY LIFE TO KNOW THE ROLES THAT RELIGION AND
RELIGIONS HAVE PLAYED IN THE TRAGIC STORY OF MANKIND.  THE FACT IS
THAT, FOR GOOD OR FOR ILL, NEARLY EVERYTHING IN OUR CULTURE WORTH
TRANSMITTING, EVERYTHING WHICH GIVES MEANING TO LIFE, IS SATURATED WITH
RELIGIOUS INFLUENCES, DERIVED FROM PAGANISM, JUDAISM, CHRISTIANITY -
BOTH CATHOLIC AND PROTESTANT - AND OTHER FAITHS ACCEPTED BY A LARGE
PART OF THE WORLD'S PEOPLES.  ONE CAN HARDLY RESPECT A SYSTEM OF
EDUCATION THAT WOULD LEAVE THE STUDENT WHOLLY IGNORANT OF THE CURRENTS
OF RELIGIOUS THOUGHT THAT MOVE THE WORLD SOCIETY FOR A PART IN WHICH HE
IS BEING PREPARED. 

BUT HOW ONE CAN TEACH, WITH SATISFACTION OR EVEN WITH JUSTICE TO ALL
FAITHS, SUCH SUBJECTS AS THE STORY OF THE REFORMATION, THE INQUISITION,
OR EVEN THE NEW ENGLAND EFFORT TO FOUND "A CHURCH WITHOUT A BISHOP AND
A STATE WITHOUT A KING," IS MORE THAN I KNOW.  IT IS TOO MUCH TO EXPECT
THAT MORTALS WILL TEACH SUBJECTS ABOUT WHICH THEIR CONTEMPORARIES HAVE
PASSIONATE CONTROVERSIES WITH THE DETACHMENT THEY MAY SUMMON TO
TEACHING ABOUT REMOTE SUBJECTS SUCH AS CONFUCIUS OR MOHAMMED.  WHEN
INSTRUCTION TURNS TO PROSELYTING AND IMPARTING KNOWLEDGE BECOMES
EVANGELISM IS, EXCEPT IN THE CRUDEST CASES, A SUBTLE INQUIRY. 

THE OPINIONS IN THIS CASE SHOW THAT PUBLIC EDUCATIONAL AUTHORITIES
HAVE EVOLVED A CONSIDERABLE VARIETY OF PRACTICES IN DEALING WITH THE
RELIGIOUS PROBLEM.  NEIGHBORHOODS DIFFER IN RACIAL, RELIGIOUS AND
CULTURAL COMPOSITIONS.  IT MUST BE EXPECTED THAT THEY WILL ADOPT
DIFFERENT CUSTOMS WHICH WILL GIVE EMPHASIS TO DIFFERENT VALUES AND WILL
INDUCE DIFFERENT EXPERIMENTS.  AND IT MUST BE EXPECTED THAT, NO MATTER
WHAT PRACTICE PREVAILS, THERE WILL BE MANY DISCONTENTED AND POSSIBLY
BELLIGERENT MINORITIES.  WE MUST LEAVE SOME FLEXIBILITY TO MEET LOCAL
CONDITIONS, SOME CHANCE TO PROGRESS BY TRIAL AND ERROR.  WHILE I AGREE
THAT THE RELIGIOUS CLASSES INVOLVED HERE GO BEYOND PERMISSIBLE LIMITS,
I ALSO THINK THE COMPLAINT DEMANDS MORE THAN PLAINTIFF IS ENTITLED TO
HAVE GRANTED.  SO FAR AS I CAN SEE THIS COURT DOES NOT TELL THE STATE
COURT WHERE IT MAY STOP, NOR DOES IT SET UP ANY STANDARDS BY WHICH THE
STATE COURT MAY DETERMINE THAT QUESTION FOR ITSELF.    THE TASK OF
SEPARATING THE SECULAR FROM THE RELIGIOUS IN EDUCATION IS ONE OF
MAGNITUDE, INTRICACY AND DELICACY.  TO LAY DOWN A SWEEPING
CONSTITUTIONAL DOCTRINE AS DEMANDED BY COMPLAINANT AND APPARENTLY
APPROVED BY THE COURT, APPLICABLE ALIKE TO ALL SCHOOL BOARDS OF THE
NATION, "TO IMMEDIATELY ADOPT AND ENFORCE RULES AND REGULATIONS
PROHIBITING ALL INSTRUCTION IN AND TEACHING OF RELIGIOUS EDUCATION IN
ALL PUBLIC SCHOOLS," IS TO DECREE A UNIFORM, RIGID AND, IF WE ARE
CONSISTENT, AN UNCHANGING STANDARD FOR COUNTLESS SCHOOL BOARDS
REPRESENTING AND SERVING HIGHLY LOCALIZED GROUPS WHICH NOT ONLY DIFFER
FROM EACH OTHER BUT WHICH THEMSELVES FROM TIME TO TIME CHANGE
ATTITUDES.  IT SEEMS TO ME THAT TO DO SO IS TO ALLOW ZEAL FOR OUR OWN
IDEAS OF WHAT IS GOOD IN PUBLIC INSTRUCTION TO INDUCE US TO ACCEPT THE
ROLE OF A SUPER BOARD OF EDUCATION FOR EVERY SCHOOL DISTRICT IN THE
NATION. 

IT IS IDLE TO PRETEND THAT THIS TASK IS ONE FOR WHICH WE CAN FIND IN
THE CONSTITUTION ONE WORD TO HELP US AS JUDGES TO DECIDE WHERE THE
SECULAR ENDS AND THE SECTARIAN BEGINS IN EDUCATION.  NOR CAN WE FIND
GUIDANCE IN ANY OTHER LEGAL SOURCE.  IT IS A MATTER ON WHICH WE CAN
FIND NO LAW BUT OUR OWN PREPOSSESSIONS.  IF WITH NO SURER LEGAL
GUIDANCE WE ARE TO TAKE UP AND DECIDE EVERY VARIATION OF THIS
CONTROVERSY, RAISED BY PERSONS NOT SUBJECT TO PENALTY OR TAX BUT WHO
ARE DISSATISFIED WITH THE WAY SCHOOLS ARE DEALING WITH THE PROBLEM, WE
ARE LIKELY TO HAVE MUCH BUSINESS OF THE SORT.  AND, MORE IMPORTANTLY,
WE ARE LIKELY TO MAKE THE LEGAL "WALL OF SEPARATION BETWEEN CHURCH AND
STATE" AS WINDING AS THE FAMOUS SERPENTINE WALL DESIGNED BY MR.
JEFFERSON FOR THE UNIVERSITY HE FOUNDED. 

MR. JUSTICE REED, DISSENTING. 

THE DECISIONS REVERSING THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS
INTERPRET THE PROHIBITION OF THE FIRST AMENDMENT AGAINST THE
ESTABLISHMENT OF RELIGION, MADE EFFECTIVE AS TO THE STATES BY THE
FOURTEENTH AMENDMENT, TO FORBID PUPILS OF THE PUBLIC SCHOOLS ELECTING,
WITH THE APPROVAL OF THEIR PARENTS, COURSES IN RELIGIOUS EDUCATION. 
THE COURSES ARE GIVEN, UNDER THE SCHOOL LAWS OF ILLINOIS AS APPROVED BY
THE SUPREME COURT OF THAT STATE, BY LAY OR CLERICAL TEACHERS SUPPLIED
AND DIRECTED BY AN INTERDENOMINATIONAL, LOCAL COUNCIL OF RELIGIOUS
EDUCATION.  FN1  THE CLASSES ARE HELD IN THE RESPECTIVE SCHOOL
BUILDINGS OF THE PUPILS AT STUDY OR RELEASED TIME PERIODS SO AS TO
AVOID CONFLICT WITH RECITATIONS.  THE TEACHERS AND SUPPLIES ARE PAID
FOR BY THE INTERDENOMINATIONAL GROUP.  FN2  AS I AM CONVINCED THAT THIS
INTERPRETATION OF THE FIRST AMENDMENT IS ERRONEOUS, I FEEL IMPELLED TO
EXPRESS THE REASONS FOR MY DISAGREEMENT.  BY DIRECTING ATTENTION TO THE
MANY INSTANCES OF CLOSE ASSOCIATION OF CHURCH AND STATE IN AMERICAN
SOCIETY AND BY RECALLING THAT MANY OF THESE RELATIONS ARE SO MUCH A
PART OF OUR TRADITION AND CULTURE THAT THEY ARE ACCEPTED WITHOUT MORE,
THIS DISSENT MAY HELP IN AN APPRAISAL OF THE MEANING OF THE CLAUSE OF
THE FIRST AMENDMENT CONCERNING THE ESTABLISHMENT OF RELIGION AND OF THE
REASONS WHICH LEAD TO THE APPROVAL OR DISAPPROVAL OF THE JUDGMENT
BELOW. 

THE REASONS FOR THE REVERSAL OF THE ILLINOIS JUDGMENT, AS THEY APPEAR
IN THE RESPECTIVE OPINIONS, MAY BE SUMMARIZED BY THE FOLLOWING
EXCERPTS.  THE OPINION OF THE COURT, AFTER STATING THE FACTS, SAYS:
"THE FOREGOING FACTS, WITHOUT REFERENCE TO OTHERS THAT APPEAR IN THE
RECORD, SHOW THE USE OF TAX-SUPPORTED PROPERTY FOR RELIGIOUS
INSTRUCTION AND THE CLOSE COOPERATION BETWEEN THE SCHOOL AUTHORITIES
AND THE RELIGIOUS COUNCIL IN PROMOTING RELIGIOUS EDUCATION.   ...  AND
IT FALLS SQUARELY UNDER THE BAN OF THE FIRST AMENDMENT (MADE APPLICABLE
TO THE STATES BY THE FOURTEENTH) AS WE INTERPRETED IT IN EVERSON V.
BOARD OF EDUCATION, 330 U.S. 1."  ANOTHER OPINION PHRASES IT THUS:  "WE
DO NOT NOW ATTEMPT TO WEIGH IN THE CONSTITUTIONAL SCALE EVERY SEPARATE
DETAIL OR VARIOUS COMBINATION OF FACTORS WHICH MAY ESTABLISH A VALID
'RELEASED TIME' PROGRAM.  WE FIND THAT THE BASIC CONSTITUTIONAL
PRINCIPLE OF ABSOLUTE SEPARATION WAS VIOLATED WHEN THE STATE OF
ILLINOIS, SPEAKING THROUGH ITS SUPREME COURT, SUSTAINED THE SCHOOL
AUTHORITIES OF CHAMPAIGN IN SPONSORING AND EFFECTIVELY FURTHERING
RELIGIOUS BELIEFS BY ITS EDUCATIONAL ARRANGEMENT."  THESE EXPRESSIONS
IN THE DECISIONS SEEM TO LEAVE OPEN FOR FURTHER LITIGATION VARIATIONS
FROM THE CHAMPAIGN PLAN.  ACTUALLY, HOWEVER, FUTURE CASES MUST RUN THE
GANTLET NOT ONLY OF THE JUDGMENT ENTERED BUT OF THE ACCOMPANYING WORDS
OF THE OPINIONS.  I FIND IT DIFFICULT TO EXTRACT FROM THE OPINIONS ANY
CONCLUSION AS TO WHAT IT IS IN THE CHAMPAIGN PLAN THAT IS
UNCONSTITUTIONAL.  IS IT THE USE OF SCHOOL BUILDINGS FOR RELIGIOUS
INSTRUCTION; THE RELEASE OF PUPILS BY THE SCHOOLS FOR RELIGIOUS
INSTRUCTION DURING SCHOOL HOURS; THE SO-CALLED ASSISTANCE BY TEACHERS
IN HANDING OUT THE REQUEST CARDS TO PUPILS, IN KEEPING LISTS OF THEM
FOR RELEASE AND RECORDS OF THEIR ATTENDANCE; OR THE ACTION OF THE
PRINCIPALS IN ARRANGING AN OPPORTUNITY FOR THE CLASSES AND THE
APPEARANCE OF THE COUNCIL'S INSTRUCTORS?  NONE OF THE REVERSING
OPINIONS SAY WHETHER THE PURPOSE OF THE CHAMPAIGN PLAN FOR RELIGIOUS
INSTRUCTION DURING SCHOOL HOURS IS UNCONSTITUTIONAL OR WHETHER IT IS
SOME INGREDIENT USED IN OR OMITTED FROM THE FORMULA THAT MAKES THE PLAN
UNCONSTITUTIONAL. 

FROM THE TENOR OF THE OPINIONS I CONCLUDE THAT THEIR TEACHINGS ARE
THAT ANY USE OF A PUPIL'S SCHOOL TIME, WHETHER THAT USE IS ON OR OFF
THE SCHOOL GROUNDS, WITH THE NECESSARY SCHOOL REGULATIONS TO FACILITATE
ATTENDANCE, FALLS UNDER THE BAN.  I REACH THIS CONCLUSION
NOTWITHSTANDING ONE SENTENCE OF INDEFINITE MEANING IN THE SECOND
OPINION:  "WE DO NOT CONSIDER, AS INDEED WE COULD NOT, SCHOOL PROGRAMS
NOT BEFORE US WHICH, THOUGH COLLOQUIALLY CHARACTERIZED AS 'RELEASED
TIME,' PRESENT SITUATIONS DIFFERING IN ASPECTS THAT MAY WELL BE
CONSTITUTIONALLY CRUCIAL."  THE USE OF THE WORDS "COOPERATION,"
"FUSION," "COMPLETE HANDS-OFF," "INTEGRATE" AND "INTEGRATED" TO
DESCRIBE THE RELATIONS BETWEEN THE SCHOOL AND THE COUNCIL IN THE PLAN
EVIDENCES THIS.  SO DOES THE INTERPRETATION OF THE WORD "AID."  THE
CRITICIZED "MOMENTUM OF THE WHOLE SCHOOL ATMOSPHERE," "FEELING OF
SEPARATISM" ENGENDERED IN THE NON-PARTICIPATING SECTS, "OBVIOUS
PRESSURE ...  TO ATTEND," AND "DIVISIVENESS" LEAD TO THE STATED
CONCLUSION.  FROM THE HOLDING AND THE LANGUAGE OF THE OPINIONS, I CAN
ONLY DEDUCE THAT RELIGIOUS INSTRUCTION OF PUBLIC SCHOOL CHILDREN DURING
SCHOOL HOURS IS PROHIBITED.  THE HISTORY OF AMERICAN EDUCATION IS
AGAINST SUCH AN INTERPRETATION OF THE FIRST AMENDMENT. 

THE OPINIONS DO NOT SAY IN WORDS THAT THE CONDEMNED PRACTICE OF
RELIGIOUS EDUCATION IS A LAW RESPECTING AN ESTABLISHMENT OF RELIGION
CONTRARY TO THE FIRST AMENDMENT.  THE PRACTICE IS ACCEPTED AS A STATE
LAW BY ALL.  I TAKE IT THAT WHEN THE OPINION OF THE COURT SAYS THAT
"THE OPERATION OF THE STATE'S COMPULSORY EDUCATION SYSTEM THUS ASSISTS
AND IS INTEGRATED WITH THE PROGRAM OF RELIGIOUS INSTRUCTION CARRIED ON
BY SEPARATE RELIGIOUS SECTS" AND CONCLUDES "THIS IS BEYOND ALL QUESTION
A UTILIZATION OF THE TAX-ESTABLISHED AND TAX-SUPPORTED PUBLIC SCHOOL
SYSTEM TO AID RELIGIOUS GROUPS TO SPREAD THEIR FAITH," THE INTENTION OF
ITS AUTHOR IS TO RULE THAT THIS PRACTICE IS A LAW "RESPECTING AN
ESTABLISHMENT OF RELIGION."  THAT WAS THE BASIS OF EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1.  IT SEEMS OBVIOUS THAT THE ACTION OF THE SCHOOL
BOARD IN PERMITTING RELIGIOUS EDUCATION IN CERTAIN GRADES OF THE
SCHOOLS BY ALL FAITHS DID NOT PROHIBIT THE FREE EXERCISE OF RELIGION. 
EVEN ASSUMING THAT CERTAIN CHILDREN WHO DID NOT ELECT TO TAKE
INSTRUCTION ARE EMBARRASSED TO REMAIN OUTSIDE OF THE CLASSES, ONE CAN
HARDLY SPEAK OF THAT EMBARRASSMENT AS A PROHIBITION AGAINST THE FREE
EXERCISE OF RELIGION.  AS NO ISSUE OF PROHIBITION UPON THE FREE
EXERCISE OF RELIGION IS BEFORE US, WE NEED ONLY EXAMINE THE SCHOOL
BOARD'S ACTION TO SEE IF IT CONSTITUTES AN ESTABLISHMENT OF RELIGION. 

THE FACTS, AS STATED IN THE REVERSING OPINIONS, ARE ADEQUATELY SET
OUT IF WE INTERPRET THE ABSTRACT WORDS USED IN THE LIGHT OF THE
CONCRETE INCIDENTS OF THE RECORD.  IT IS CORRECT TO SAY THAT THE
PARENTS "CONSENTED" TO THE RELIGIOUS INSTRUCTION OF THE CHILDREN, IF WE
UNDERSTAND "CONSENT" TO MEAN THE SIGNING OF A CARD LIKE THE ONE IN THE
MARGIN.  FN3  IT IS CORRECT TO SAY THAT "INSTRUCTORS WERE SUBJECT TO
THE APPROVAL AND SUPERVISION OF THE SUPERINTENDENT OF SCHOOLS," IF IT
IS UNDERSTOOD THAT THERE WERE NO DEFINITIVE WRITTEN RULES AND THAT THE
PRACTICE WAS AS IS SHOWN IN THE EXCERPTS FROM THE FINDINGS BELOW.  FN4
THE SUBSTANCE OF THE RELIGIOUS EDUCATION COURSE IS DETERMINED BY THE
MEMBERS OF THE VARIOUS CHURCHES ON THE COUNCIL, NOT BY THE
SUPERINTENDENT.  FN5  THE EVIDENCE AND FINDINGS SET OUT IN THE TWO
PRECEDING NOTES CONVINCE ME THAT THE "APPROVAL AND SUPERVISION"
REFERRED TO ABOVE ARE NOT OF THE TEACHERS AND THE COURSE OF STUDIES BUT
OF THE ORDERLY PRESENTATION OF THE COURSES TO THOSE STUDENTS WHO MAY
ELECT THE INSTRUCTION.  THE TEACHING LARGELY COVERED BIBLICAL
INCIDENTS.  FN6  THE RELIGIOUS TEACHERS AND THEIR TEACHINGS, IN EVERY
REAL SENSE, WERE FINANCED AND REGULATED BY THE COUNCIL OF RELIGIOUS
EDUCATION, NOT THE SCHOOL BOARD. 

THE PHRASE "AN ESTABLISHMENT OF RELIGION" MAY HAVE BEEN INTENDED BY
CONGRESS TO BE AIMED ONLY AT A STATE CHURCH.  WHEN THE FIRST AMENDMENT
WAS PENDING IN CONGRESS IN SUBSTANTIALLY ITS PRESENT FORM, "MR. MADISON
SAID, HE APPREHENDED THE MEANING OF THE WORDS TO BE, THAT CONGRESS
SHOULD NOT ESTABLISH A RELIGION, AND ENFORCE THE LEGAL OBSERVATION OF
IT BY LAW, NOR COMPEL MEN TO WORSHIP GOD IN ANY MANNER CONTRARY TO
THEIR CONSCIENCE."  FN7  PASSING YEARS, HOWEVER, HAVE BROUGHT ABOUT
ACCEPTANCE OF A BROADER MEANING, ALTHOUGH NEVER UNTIL TODAY, I BELIEVE,
HAS THIS COURT WIDENED ITS INTERPRETATION TO ANY SUCH DEGREE AS HOLDING
THAT RECOGNITION OF THE INTEREST OF OUR NATION IN RELIGION, THROUGH THE
GRANTING, TO QUALIFIED REPRESENTATIVES OF THE PRINCIPAL FAITHS, OF
OPPORTUNITY TO PRESENT RELIGION AS AN OPTIONAL, EXTRACURRICULAR SUBJECT
DURING RELEASED SCHOOL TIME IN PUBLIC SCHOOL BUILDINGS, WAS EQUIVALENT
TO AN ESTABLISHMENT OF RELIGION.  A READING OF THE GENERAL STATEMENTS
OF EMINENT STATESMEN OF FORMER DAYS, REFERRED TO IN THE OPINIONS IN
THIS CASE AND IN EVERSON V. BOARD OF EDUCATION, SUPRA, WILL SHOW THAT
CIRCUMSTANCES SUCH AS THOSE IN THIS CASE WERE FAR FROM THE MINDS OF THE
AUTHORS.  THE WORDS AND SPIRIT OF THOSE STATEMENTS MAY BE
WHOLEHEARTEDLY ACCEPTED WITHOUT IN THE LEAST IMPUGNING THE JUDGMENT OF
THE STATE OF ILLINOIS.  FN8 

MR. JEFFERSON, AS ONE OF THE FOUNDERS OF THE UNIVERSITY OF VIRGINIA,
A SCHOOL WHICH FROM ITS ESTABLISHMENT IN 1819 HAS BEEN WHOLLY GOVERNED,
MANAGED AND CONTROLLED BY THE STATE OF VIRGINIA, FN9  WAS FACED WITH
THE SAME PROBLEM THAT IS BEFORE THIS COURT TODAY:  THE QUESTION OF THE
CONSTITUTIONAL LIMITATION UPON RELIGIOUS EDUCATION IN PUBLIC SCHOOLS. 
IN HIS ANNUAL REPORT AS RECTOR, TO THE PRESIDENT AND DIRECTORS OF THE
LITERARY FUND, DATED OCTOBER 7, 1822, APPROVED BY THE VISITORS OF THE
UNIVERSITY OF WHOM MR. MADISON WAS ONE,  FN10  MR. JEFFERSON SET FORTH
HIS VIEWS AT SOME LENGTH.  FN11  THESE SUGGESTIONS OF MR. JEFFERSON
WERE ADOPTED  FN12  AND CH. II, SEC. 1, OF THE REGULATIONS OF THE
UNIVERSITY OF OCTOBER 4, 1824, PROVIDED THAT: 

"SHOULD THE RELIGIOUS SECTS OF THIS STATE, OR ANY OF THEM, ACCORDING
TO THE INVITATION HELD OUT TO THEM, ESTABLISH WITHIN, OR ADJACENT TO,
THE PRECINCTS OF THE UNIVERSITY, SCHOOLS FOR INSTRUCTION IN THE
RELIGION OF THEIR SECT, THE STUDENTS OF THE UNIVERSITY WILL BE FREE,
AND EXPECTED TO ATTEND RELIGIOUS WORSHIP AT THE ESTABLISHMENT OF THEIR
RESPECTIVE SECTS, IN THE MORNING, AND IN TIME TO MEET THEIR SCHOOL IN
THE UNIVERSITY AT ITS STATED HOUR."  FN13  THUS, THE "WALL OF
SEPARATION BETWEEN CHURCH AND STATE" THAT MR. JEFFERSON BUILT AT THE
UNIVERSITY WHICH HE FOUNDED DID NOT EXCLUDE RELIGIOUS EDUCATION FROM
THAT SCHOOL.  THE DIFFERENCE BETWEEN THE GENERALITY OF HIS STATEMENTS
ON THE SEPARATION OF CHURCH AND STATE AND THE SPECIFICITY OF HIS
CONCLUSIONS ON EDUCATION ARE CONSIDERABLE.  A RULE OF LAW SHOULD NOT BE
DRAWN FROM A FIGURE OF SPEECH. 

MR. MADISON'S MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS
ASSESSMENTS,  FN14  RELIED UPON BY THE DISSENTING JUSTICES IN EVERSON,
IS NOT APPLICABLE HERE.  FN15  MR. MADISON WAS ONE OF THE PRINCIPAL
OPPONENTS IN THE VIRGINIA GENERAL ASSEMBLY OF A BILL ESTABLISHING A
PROVISION FOR TEACHERS OF THE CHRISTIAN RELIGION.  THE MONIES RAISED BY
THE TAXING SECTION  FN16  OF THAT BILL WERE TO BE APPROPRIATED "BY THE
VESTRIES, ELDERS, OR DIRECTORS OF EACH RELIGIOUS SOCIETY,  ...  TO A
PROVISION FOR A MINISTER OR TEACHER OF THE GOSPEL OF THEIR
DENOMINATION, OR THE PROVIDING PLACES OF DIVINE WORSHIP, AND TO NONE
OTHER USE WHATSOEVER  ...  "  THE CONCLUSIVE LEGISLATIVE STRUGGLE OVER
THIS ACT TOOK PLACE IN THE FALL OF 1785, BEFORE THE ADOPTION OF THE
BILL OF RIGHTS.  THE REMONSTRANCE HAD BEEN ISSUED BEFORE THE GENERAL
ASSEMBLY CONVENED AND WAS INSTRUMENTAL IN THE FINAL DEFEAT OF THE ACT,
WHICH DIED IN COMMITTEE.  THROUGHOUT THE REMONSTRANCE, MR. MADISON
SPEAKS OF THE "ESTABLISHMENT" SOUGHT TO BE EFFECTED BY THE ACT.  IT IS
CLEAR FROM ITS HISTORICAL SETTING AND ITS LANGUAGE THAT THE
REMONSTRANCE WAS A PROTEST AGAINST AN EFFORT BY VIRGINIA TO SUPPORT
CHRISTIAN SECTS BY TAXATION.  ISSUES SIMILAR TO THOSE RAISED BY THE
INSTANT CASE WERE NOT DISCUSSED.  THUS, MR. MADISON'S APPROVAL OF MR.
JEFFERSON'S REPORT AS RECTOR GIVES, IN MY OPINION, A CLEARER INDICATION
OF HIS VIEWS ON THE CONSTITUTIONALITY OF RELIGIOUS EDUCATION IN PUBLIC
SCHOOLS THAN HIS GENERAL STATEMENTS ON A DIFFERENT SUBJECT.    THIS
COURT SUMMARIZED THE AMENDMENT'S ACCEPTED REACH INTO THE RELIGIOUS
FIELD, AS I UNDERSTAND ITS SCOPE, IN EVERSON V. BOARD OF EDUCATION,
SUPRA.  THE COURT'S OPINION QUOTES THE GIST OF THE COURT'S REASONING IN
EVERSON.  I AGREE, AS THERE STATED, THAT NONE OF OUR GOVERNMENTAL
ENTITIES CAN "SET UP A CHURCH."  I AGREE THAT THEY CANNOT "AID" ALL OR
ANY RELIGIONS OR PREFER ONE "OVER ANOTHER."  BUT "AID" MUST BE
UNDERSTOOD AS A PURPOSEFUL ASSISTANCE DIRECTLY TO THE CHURCH ITSELF OR
TO SOME RELIGIOUS GROUP OR ORGANIZATION DOING RELIGIOUS WORK OF SUCH A
CHARACTER THAT IT MAY FAIRLY BE SAID TO BE PERFORMING ECCLESIASTICAL
FUNCTIONS.  "PREFER" MUST GIVE AN ADVANTAGE TO ONE "OVER ANOTHER."  I
AGREE THAT PUPILS CANNOT "BE RELEASED IN PART FROM THEIR LEGAL DUTY" OF
SCHOOL ATTENDANCE UPON CONDITION THAT THEY ATTEND RELIGIOUS CLASSES. 
BUT AS ILLINOIS HAS HELD THAT IT IS WITHIN THE DISCRETION OF THE SCHOOL
BOARD TO PERMIT ABSENCE FROM SCHOOL FOR RELIGIOUS INSTRUCTION NO LEGAL
DUTY OF SCHOOL ATTENDANCE IS VIOLATED.  396 ILL. 14, 71 N.E.2D 161.  IF
THE SENTENCE IN THE COURT'S OPINION, CONCERNING THE PUPILS' RELEASE
FROM LEGAL DUTY, IS INTENDED TO MEAN THAT THE CONSTITUTION FORBIDS A
SCHOOL TO EXCUSE A PUPIL FROM SECULAR CONTROL DURING SCHOOL HOURS TO
ATTEND VOLUNTARILY A CLASS IN RELIGIOUS EDUCATION, WHETHER IN OR OUT OF
SCHOOL BUILDINGS, I DISAGREE.  OF COURSE, NO TAX CAN BE LEVIED TO
SUPPORT ORGANIZATIONS INTENDED "TO TEACH OR PRACTICE RELIGION."  I
AGREE TOO THAT THE STATE CANNOT INFLUENCE ONE TOWARD RELIGION AGAINST
HIS WILL OR PUNISH HIM FOR HIS BELIEFS.  CHAMPAIGN'S RELIGIOUS
EDUCATION COURSE DOES NONE OF THESE THINGS. 

IT SEEMS CLEAR TO ME THAT THE "AID" REFERRED TO BY THE COURT IN THE
EVERSON CASE COULD NOT HAVE BEEN THOSE INCIDENTAL ADVANTAGES THAT
RELIGIOUS BODIES, WITH OTHER GROUPS SIMILARLY SITUATED, OBTAIN AS A BY
PRODUCT OF ORGANIZED SOCIETY.  THIS EXPLAINS THE WELL-KNOWN FACT THAT
ALL CHURCHES RECEIVE "AID" FROM GOVERNMENT IN THE FORM OF FREEDOM FROM
TAXATION.  THE EVERSON DECISION ITSELF JUSTIFIED THE TRANSPORTATION OF
CHILDREN TO CHURCH SCHOOLS BY NEW JERSEY FOR SAFETY REASONS.  IT
ACCORDS WITH COCHRAN V. LOUISIANA STATE BOARD OF EDUCATION, 281 U.S.
370, WHERE THIS COURT UPHELD A FREE TEXTBOOK STATUTE OF LOUISIANA
AGAINST A CHARGE THAT IT AIDED PRIVATE SCHOOLS ON THE GROUND THAT THE
BOOKS WERE FOR THE EDUCATION OF THE CHILDREN, NOT TO AID RELIGIOUS
SCHOOLS.  LIKEWISE THE NATIONAL SCHOOL LUNCH ACT AIDS ALL SCHOOL
CHILDREN ATTENDING TAX-EXEMPT SCHOOLS.  FN17  IN BRADFIELD V. ROBERTS,
175 U.S. 291, THIS COURT HELD PROPER THE PAYMENT OF MONEY BY THE
FEDERAL GOVERNMENT TO BUILD AN ADDITION TO A HOSPITAL, CHARTERED BY
INDIVIDUALS WHO WERE MEMBERS OF A ROMAN CATHOLIC SISTERHOOD, AND
OPERATED UNDER THE AUSPICES OF THE ROMAN CATHOLIC CHURCH.  THIS WAS
DONE OVER THE OBJECTION THAT IT AIDED THE ESTABLISHMENT OF RELIGION. 
FN18  WHILE OBVIOUSLY IN THESE INSTANCES THE RESPECTIVE CHURCHES, IN A
CERTAIN SENSE, WERE AIDED, THIS COURT HAS NEVER HELD THAT SUCH "AID"
WAS IN VIOLATION OF THE FIRST OR FOURTEENTH AMENDMENT. 

WELL-RECOGNIZED AND LONG-ESTABLISHED PRACTICES SUPPORT THE VALIDITY
OF THE ILLINOIS STATUTE HERE IN QUESTION.  THAT STATUTE, AS CONSTRUED
IN THIS CASE, IS COMPARABLE TO THOSE IN MANY STATES.  FN19  ALL DIFFER
TO SOME EXTENT.  NEW YORK MAY BE TAKEN AS A FAIR EXAMPLE.  FN20  IN
MANY STATES THE PROGRAM IS UNDER THE SUPERVISION OF A RELIGIOUS COUNCIL
COMPOSED OF DELEGATES WHO ARE THEMSELVES COMMUNICANTS OF VARIOUS
FAITHS.  FN21  AS IS SHOWN BY BRADFIELD V. ROBERTS, SUPRA, THE FACT
THAT THE MEMBERS OF THE COUNCIL HAVE RELIGIOUS AFFILIATIONS IS NOT
SIGNIFICANT.  IN SOME, INSTRUCTION IS GIVEN OUTSIDE OF THE SCHOOL
BUILDINGS; IN OTHERS, WITHIN THESE BUILDINGS.  METROPOLITAN CENTERS
LIKE NEW YORK USUALLY WOULD HAVE AVAILABLE QUARTERS CONVENIENT TO
SCHOOLS.  UNLESS SMALLER CITIES AND RURAL COMMUNITIES USE THE SCHOOL
BUILDING AT TIMES THAT DO NOT INTERFERE WITH RECITATIONS, THEY MAY BE
COMPELLED TO GIVE UP RELIGIOUS EDUCATION.  I UNDERSTAND THAT PUPILS NOT
TAKING RELIGIOUS EDUCATION USUALLY ARE GIVEN OTHER WORK OF A SECULAR
NATURE WITHIN THE SCHOOLS.  FN22  SINCE ALL THESE STATES USE THE
FACILITIES OF THE SCHOOLS TO AID THE RELIGIOUS EDUCATION TO SOME
EXTENT, THEIR DESIRE TO PERMIT RELIGIOUS EDUCATION TO SCHOOL CHILDREN
IS THWARTED BY THIS COURT'S JUDGMENT.  FN23  UNDER IT, AS I UNDERSTAND
ITS LANGUAGE, CHILDREN CANNOT BE RELEASED OR DISMISSED FROM SCHOOL TO
ATTEND CLASSES IN RELIGION WHILE OTHER CHILDREN MUST REMAIN TO PURSUE
SECULAR EDUCATION.  TEACHERS CANNOT KEEP THE RECORDS AS TO WHICH PUPILS
ARE TO BE DISMISSED AND WHICH RETAINED.  TO DO SO IS SAID TO BE AN
"AID" IN ESTABLISHING RELIGION; THE USE OF PUBLIC MONEY FOR RELIGION. 

CASES RUNNING INTO THE SCORES HAVE BEEN IN THE STATE COURTS OF LAST
RESORT THAT INVOLVED RELIGION AND THE SCHOOLS.  EXCEPT WHERE THE
EXERCISES WITH RELIGIOUS SIGNIFICANCE PARTOOK OF THE CEREMONIAL
PRACTICE OF SECTS OR GROUPS, THEIR CONSTITUTIONALITY HAS BEEN GENERALLY
UPHELD.  FN24 ILLINOIS ITSELF PROMPTLY STRUCK DOWN AS VIOLATIVE OF ITS
OWN CONSTITUTION REQUIRED EXERCISES PARTAKING OF A RELIGIOUS CEREMONY. 
PEOPLE EX REL. RING V. BOARD OF EDUCATION, 245 ILL. 334, 92 N.E. 251. 
IN THAT CASE COMPULSORY RELIGIOUS EXERCISES - A READING FROM THE KING
JAMES BIBLE, THE LORD'S PRAYER AND THE SINGING OF HYMNS - WERE
FORBIDDEN AS "WORSHIP SERVICES."  IN THIS CASE, THE SUPREME COURT OF
ILLINOIS POINTED OUT THAT IN THE RING CASE, THE ACTIVITIES IN THE
SCHOOL WERE CEREMONIAL AND COMPULSORY; IN THIS, VOLUNTARY AND
EDUCATIONAL.  396 ILL. 14, 20-21, 71 N.E.2D 161, 164. 

THE PRACTICES OF THE FEDERAL GOVERNMENT OFFER MANY EXAMPLES OF THIS
KIND OF "AID" BY THE STATE TO RELIGION.  THE CONGRESS OF THE UNITED
STATES HAS A CHAPLAIN FOR EACH HOUSE WHO DAILY INVOKES DIVINE BLESSINGS
AND GUIDANCE FOR THE PROCEEDINGS.  FN25  THE ARMED FORCES HAVE
COMMISSIONED CHAPLAINS FROM EARLY DAYS.  FN26  THEY CONDUCT THE PUBLIC
SERVICES IN ACCORDANCE WITH THE LITURGICAL REQUIREMENTS OF THEIR
RESPECTIVE FAITHS, ASHORE AND AFLOAT, EMPLOYING FOR THE PURPOSE
PROPERTY BELONGING TO THE UNITED STATES AND DEDICATED TO THE SERVICES
OF RELIGION.  FN27  UNDER THE SERVICEMEN'S READJUSTMENT ACT OF 1944,
ELIGIBLE VETERANS MAY RECEIVE TRAINING AT GOVERNMENT EXPENSE FOR THE
MINISTRY IN DENOMINATIONAL SCHOOLS.  FN28  THE SCHOOLS OF THE DISTRICT
OF COLUMBIA HAVE OPENING EXERCISES WHICH "INCLUDE A READING FROM THE
BIBLE WITHOUT NOTE OR COMMENT, AND THE LORD'S PRAYER."  FN29 

IN THE UNITED STATES NAVAL ACADEMY AND THE UNITED STATES MILITARY
ACADEMY, SCHOOLS WHOLLY SUPPORTED AND COMPLETELY CONTROLLED BY THE
FEDERAL GOVERNMENT, THERE ARE A NUMBER OF RELIGIOUS ACTIVITIES. 
CHAPLAINS ARE ATTACHED TO BOTH SCHOOLS.  ATTENDANCE AT CHURCH SERVICES
ON SUNDAY IS COMPULSORY AT BOTH THE MILITARY AND NAVAL ACADEMIES.  FN30
AT WEST POINT THE PROTESTANT SERVICES ARE HELD IN THE CADET CHAPEL,
THE CATHOLIC IN THE CATHOLIC CHAPEL, AND THE JEWISH IN THE OLD CADET
CHAPEL; AT ANNAPOLIS ONLY PROTESTANT SERVICES ARE HELD ON THE
RESERVATION, MIDSHIPMEN OF OTHER RELIGIOUS PERSUASIONS ATTEND THE
CHURCHES OF THE CITY OF ANNAPOLIS.  THESE FACTS INDICATE THAT BOTH
SCHOOLS SINCE THEIR EARLIEST BEGINNINGS HAVE MAINTAINED AND ENFORCED A
PATTERN OF PARTICIPATION IN FORMAL WORSHIP. 

WITH THE GENERAL STATEMENTS IN THE OPINIONS CONCERNING THE
CONSTITUTIONAL REQUIREMENT THAT THE NATION AND THE STATES, BY VIRTUE OF
THE FIRST AND FOURTEENTH AMENDMENTS N31, MAY "MAKE NO LAW RESPECTING AN
ESTABLISHMENT OF RELIGION," I AM IN AGREEMENT.  BUT, IN THE LIGHT OF
THE MEANING GIVEN TO THOSE WORDS BY THE PRECEDENTS, CUSTOMS, AND
PRACTICES WHICH I HAVE DETAILED ABOVE, I CANNOT AGREE WITH THE COURT'S
CONCLUSION THAT WHEN PUPILS COMPELLED BY LAW TO GO TO SCHOOL FOR
SECULAR EDUCATION ARE RELEASED FROM SCHOOL SO AS TO ATTEND THE
RELIGIOUS CLASSES, CHURCHES ARE UNCONSTITUTIONALLY AIDED.  WHATEVER MAY
BE THE WISDOM OF THE ARRANGEMENT AS TO THE USE OF THE SCHOOL BUILDINGS
MADE WITH THE CHAMPAIGN COUNCIL OF RELIGIOUS EDUCATION, IT IS CLEAR TO
ME THAT PAST PRACTICE SHOWS SUCH COOPERATION BETWEEN THE SCHOOLS AND A
NON-ECCLESIASTICAL BODY IS NOT FORBIDDEN BY THE FIRST AMENDMENT.  WHEN
ACTUAL CHURCH SERVICES HAVE ALWAYS BEEN PERMITTED ON GOVERNMENT
PROPERTY, THE MERE USE OF THE SCHOOL BUILDINGS BY A NON-SECTARIAN GROUP
FOR RELIGIOUS EDUCATION OUGHT NOT TO BE CONDEMNED AS AN ESTABLISHMENT
OF RELIGION.  FOR A NON-SECTARIAN ORGANIZATION TO GIVE THE TYPE OF
INSTRUCTION HERE OFFERED CANNOT BE SAID TO VIOLATE OUR RULE AS TO THE
ESTABLISHMENT OF RELIGION BY THE STATE.  THE PROHIBITION OF ENACTMENTS
RESPECTING THE ESTABLISHMENT OF RELIGION DO NOT BAR EVERY FRIENDLY
GESTURE BETWEEN CHURCH AND STATE.  IT IS NOT AN ABSOLUTE PROHIBITION
AGAINST EVERY CONCEIVABLE SITUATION WHERE THE TWO MAY WORK TOGETHER,
ANY MORE THAN THE OTHER PROVISIONS OF THE FIRST AMENDMENT - FREE
SPEECH, FREE PRESS - ARE ABSOLUTES.  FN32  IF ABUSES OCCUR, SUCH AS THE
USE OF THE INSTRUCTION HOUR FOR SECTARIAN PURPOSES, I HAVE NO DOUBT, IN
VIEW OF THE RING CASE, THAT ILLINOIS WILL PROMPTLY CORRECT THEM.  IF
THEY ARE OF A KIND THAT TEND TO THE ESTABLISHMENT OF A CHURCH OR
INTERFERE WITH THE FREE EXERCISE OF RELIGION, THIS COURT IS OPEN FOR A
REVIEW OF ANY ERRONEOUS DECISION.  THIS COURT CANNOT BE TOO CAUTIOUS IN
UPSETTING PRACTICES EMBEDDED IN OUR SOCIETY BY MANY YEARS OF
EXPERIENCE.  A STATE IS ENTITLED TO HAVE GREAT LEEWAY IN ITS
LEGISLATION WHEN DEALING WITH THE IMPORTANT SOCIAL PROBLEMS OF ITS
POPULATION.  FN33  A DEFINITE VIOLATION OF LEGISLATIVE LIMITS MUST BE
ESTABLISHED.  THE CONSTITUTION SHOULD NOT BE STRETCHED TO FORBID
NATIONAL CUSTOMS IN THE WAY COURTS ACT TO REACH ARRANGEMENTS TO AVOID
FEDERAL TAXATION.  FN34  DEVOTION TO THE GREAT PRINCIPLE OF RELIGIOUS
LIBERTY SHOULD NOT LEAD US INTO A RIGID INTERPRETATION OF THE
CONSTITUTIONAL GUARANTEE THAT CONFLICTS WITH ACCEPTED HABITS OF OUR
PEOPLE.  THIS IS AN INSTANCE WHERE, FOR ME, THE HISTORY OF PAST
PRACTICES IS DETERMINATIVE OF THE MEANING OF A CONSTITUTIONAL CLAUSE,
NOT A DECOROUS INTRODUCTION TO THE STUDY OF ITS TEXT.  THE JUDGMENT
SHOULD BE AFFIRMED. 

FN1  THE TRIAL COURT FOUND THAT:  "'THE CHAMPAIGN COUNCIL OF
RELIGIOUS EDUCATION' (IS) A VOLUNTARY ASSOCIATION MADE UP OF THE
REPRESENTATIVES OF THE JEWISH, ROMAN CATHOLIC AND PROTESTANT FAITHS IN
THE SCHOOL DISTRICT." 

FN2  THERE IS NO EXTRA COST TO THE STATE BUT AS A THEORETICAL
ACCOUNTING PROBLEM IT MAY BE CORRECT TO CHARGE TO THE CLASSES THEIR
COMPARABLE PROPORTION OF THE STATE EXPENSE FOR BUILDINGS, OPERATION AND
TEACHERS.  IN CONNECTION WITH THE CLASSES, THE TEACHERS NEED ONLY KEEP
A RECORD OF THE PUPILS WHO ATTEND.  INCREASED CUSTODIAL REQUIREMENTS
ARE LIKEWISE NOMINAL.  IT IS CUSTOMARY TO USE SCHOOL BUILDINGS FOR
COMMUNITY ACTIVITIES WHEN NOT NEEDED FOR SCHOOL PURPOSES.  SEE ILL.
REV. STAT., CH. 122, SEC. 123. 

FN3  "CHAMPAIGN COUNCIL OF RELIGIOUS EDUCATION

   1945-1946

                         PARENT'S REQUEST CARD 

PLEASE PERMIT ........................ IN GRADE .. AT ..........
SCHOOL TO ATTEND A CLASS IN RELIGIOUS EDUCATION ONE PERIOD A WEEK UNDER
THE AUSPICES OF THE CHAMPAIGN COUNCIL OF RELIGIOUS EDUCATION. 

(CHECK  WHICH) 

DATE ....................  (  ) INTERDENOMINATIONAL

                         (  ) PROTESTANT

                         (  ) ROMAN CATHOLIC

                         (  ) JEWISH

            SIGNED ....................

                      (PARENT NAME) 

PARENT'S CHURCH ........................ 

TELEPHONE NO. ..........  ADDRESS .................... 

A FEE OF 25 CENTS A SEMESTER IS CHARGED EACH PUPIL TO HELP COVER THE
COST OF MATERIAL USED. 

IF YOU WISH YOUR CHILD TO RECEIVE RELIGIOUS INSTRUCTION, PLEASE SIGN
THIS CARD AND RETURN TO THE SCHOOL. 

           MAE CHAPIN, DIRECTOR." 

MAE CHAPIN, THE DIRECTOR, WAS NOT A SCHOOL EMPLOYEE. 

FN4  "THE SUPERINTENDENT TESTIFIED THAT JEHOVAH'S WITNESSES OR ANY
OTHER SECT WOULD BE ALLOWED TO TEACH PROVIDED THEIR TEACHERS HAD PROPER
EDUCATIONAL QUALIFICATIONS, SO THAT BAD GRAMMAR, FOR INSTANCE, WOULD
NOT BE TAUGHT TO THE PUPILS.  A SIMILAR SITUATION DEVELOPED WITH
REFERENCE TO THE MISSOURI SYNOD OF THE LUTHERAN CHURCH.  THE EVIDENCE
TENDS TO SHOW THAT DURING THE COURSE OF THE TRIAL THAT GROUP INDICATED
IT WOULD AFFILIATE WITH THE COUNCIL OF RELIGIOUS EDUCATION. 

"BEFORE ANY FAITH OR OTHER GROUP MAY OBTAIN PERMISSION FROM THE
DEFENDANT FOR THE SIMILAR, FREE AND EQUAL USE OF ROOMS IN THE PUBLIC
SCHOOL BUILDINGS SAID FAITH OR GROUP MUST MAKE APPLICATION TO THE
SUPERINTENDENT OF SCHOOLS OF SAID SCHOOL DISTRICT NUMBER 71, WHO IN
TURN WILL DETERMINE WHETHER OR NOT IT IS PRACTICAL FOR SAID GROUP TO
TEACH IN SAID SCHOOL SYSTEM. 

"THE COURT FEELS FROM ALL THE FACTS IN THE RECORD THAT AN HONEST
ATTEMPT HAS BEEN MADE AND IS BEING MADE TO PERMIT RELIGIOUS INSTRUCTION
TO BE GIVEN BY QUALIFIED OUTSIDE TEACHERS OF ANY SECT TO PEOPLE OF
THEIR OWN FAITH IN THE MANNER ABOVE OUTLINED.  THE EVIDENCE SHOWS THAT
NO SECT OR RELIGIOUS GROUP HAS EVER BEEN DENIED THE RIGHT TO USE THE
SCHOOLS IN THIS MANNER." 

FN5 A FINDING READS:  "THE CURRICULUM OF STUDIES IN THE PROTESTANT
CLASSES IS DETERMINED BY A COMMITTEE OF THE PROTESTANT MEMBERS OF THE
COUNCIL OF RELIGIOUS EDUCATION AFTER CONSULTATION WITH REPRESENTATIVES
OF ALL THE DIFFERENT FAITHS INCLUDED IN SAID COUNCIL.  THE JEWISH
CLASSES OF COURSE WOULD DENY THE DIVINITY OF JESUS CHRIST.  THE
TEACHING IN THE CATHOLIC CLASSES OF COURSE EXPLAINS TO CATHOLIC PUPILS
THE TEACHING OF THE CATHOLIC RELIGION, AND ARE NOT SHARED BY OTHER
STUDENTS WHO ARE PROTESTANTS OR JEWS.  THE TEACHINGS IN THE PROTESTANT
CLASSES WOULD UNDOUBTEDLY, FROM THE EVIDENCE, TEACH SOME DOCTRINES THAT
WOULD NOT BE ACCEPTED BY THE OTHER TWO RELIGIONS."    FN6  IT WAS
FOUND:  "THE TESTIMONY SHOWS THAT SECTARIAN DIFFERENCES BETWEEN THE
CONDUCTED IN THE SCHOOLS.  THE TESTIMONY OF THE RELIGIOUS EDUCATION
TEACHERS, THE SECULAR TEACHERS WHO TESTIFIED, AND THE MANY CHILDREN,
MOSTLY FROM PROTESTANT FAMILIES, WHO EITHER TOOK OR DID NOT TAKE
RELIGIOUS EDUCATION COURSES, IS TO THE EFFECT THAT RELIGIOUS EDUCATION
CLASSES HAVE FOSTERED TOLERANCE RATHER THAN INTOLERANCE."    THE
SUPREME COURT OF ILLINOIS SAID:  "THE RELIGIOUS EDUCATION COURSES DO
NOT GO TO THE EXTENT OF BEING WORSHIP SERVICES AND DO NOT INCLUDE
PRAYERS OR THE SINGING OF HYMNS."  396 ILL. 14, 21, 71 N.E.2D 161,
164. 

FN7  1 ANNALS OF CONGRESS 730. 

FN8  FOR EXAMPLE, MR. JEFFERSON'S STRIKING PHRASE AS TO THE "WALL OF
SEPARATION BETWEEN CHURCH AND STATE" APPEARS IN A LETTER ACKNOWLEDGING
"THE AFFECTIONATE SENTIMENTS OF ESTEEM AND APPROBATION" INCLUDED IN A
TESTIMONIAL TO HIMSELF.  IN ITS CONTEXT IT READS AS FOLLOWS: 

"BELIEVING WITH YOU THAT RELIGION IS A MATTER WHICH LIES SOLELY
BETWEEN MAN AND HIS GOD, THAT HE OWES ACCOUNT TO NONE OTHER FOR HIS
FAITH OR HIS WORSHIP, THAT THE LEGISLATIVE POWERS OF GOVERNMENT REACH
ACTIONS ONLY, AND NOT OPINIONS, I CONTEMPLATE WITH SOVEREIGN REVERENCE
THAT ACT OF THE WHOLE AMERICAN PEOPLE WHICH DECLARED THAT THEIR
LEGISLATURE SHOULD 'MAKE NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF,' THUS BUILDING A
WALL OF SEPARATION BETWEEN CHURCH AND STATE."  8 THE WRITINGS OF THOMAS
JEFFERSON (WASHINGTON ED., 1861) 113. 

FN9  ACTS OF THE ASSEMBLY OF 1818-19(1819) 15; PHILLIPS V. THE RECTOR
AND VISITORS OF THE UNIVERSITY OF VIRGINIA, 97 VA. 472, 474-75, 34 S.E.
66, 67. 

FN10  19 THE WRITINGS OF THOMAS JEFFERSON (MEMORIAL EDITION, 1904)
408, 409. 

FN11  ID., PP. 414-17: 

"IT WAS NOT, HOWEVER, TO BE UNDERSTOOD THAT INSTRUCTION IN RELIGIOUS
OPINION AND DUTIES WAS MEANT TO BE PRECLUDED BY THE PUBLIC AUTHORITIES,
AS INDIFFERENT TO THE INTERESTS OF SOCIETY.  ON THE CONTRARY, THE
RELATIONS WHICH EXIST BETWEEN MAN AND HIS MAKER, AND THE DUTIES
RESULTING FROM THOSE RELATIONS, ARE THE MOST INTERESTING AND IMPORTANT
TO EVERY HUMAN BEING, AND THE MOST INCUMBENT ON HIS STUDY AND
INVESTIGATION.  THE WANT OF INSTRUCTION IN THE VARIOUS CREEDS OF
RELIGIOUS FAITH EXISTING AMONG OUR CITIZENS PRESENTS, THEREFORE, A
CHASM IN A GENERAL INSTITUTION OF THE USEFUL SCIENCES.  ...  A REMEDY,
HOWEVER, HAS BEEN SUGGESTED OF PROMISING ASPECT, WHICH, WHILE IT
EXCLUDES THE PUBLIC AUTHORITIES FROM THE DOMAIN OF RELIGIOUS FREEDOM,
WILL GIVE TO THE SECTARIAN SCHOOLS OF DIVINITY THE FULL BENEFIT THE
PUBLIC PROVISIONS MADE FOR INSTRUCTION IN THE OTHER BRANCHES OF
SCIENCE.  ...  IT HAS, THEREFORE, BEEN IN CONTEMPLATION, AND SUGGESTED
BY SOME PIOUS INDIVIDUALS, WHO PERCEIVE THE ADVANTAGES OF ASSOCIATING
OTHER STUDIES WITH THOSE OF RELIGION, TO ESTABLISH THEIR RELIGIOUS
SCHOOLS ON THE CONFINES OF THE UNIVERSITY, SO AS TO GIVE TO THEIR
STUDENTS READY AND CONVENIENT ACCESS AND ATTENDANCE ON THE SCIENTIFIC
LECTURES OF THE UNIVERSITY; AND TO MAINTAIN, BY THAT MEANS, THOSE
DESTINED FOR THE RELIGIOUS PROFESSIONS ON AS HIGH A STANDING OF
SCIENCE, AND OF PERSONAL WEIGHT AND RESPECTABILITY, AS MAY BE OBTAINED
BY OTHERS FROM THE BENEFITS OF THE UNIVERSITY.  SUCH ESTABLISHMENTS
WOULD OFFER THE FURTHER AND GREATER ADVANTAGE OF ENABLING THE STUDENTS
OF THE UNIVERSITY TO ATTEND RELIGIOUS EXERCISES WITH THE PROFESSOR OF
THEIR PARTICULAR SECT, EITHER IN THE ROOMS OF THE BUILDING STILL TO BE
ERECTED, AND DESTINED TO THAT PURPOSE UNDER IMPARTIAL REGULATIONS, AS
PROPOSED IN THE SAME REPORT OF THE COMMISSIONERS, OR IN THE LECTURING
ROOM OF SUCH PROFESSOR.   ...  SUCH AN ARRANGEMENT WOULD COMPLETE THE
CIRCLE OF THE USEFUL SCIENCES EMBRACED BY THIS INSTITUTION, AND WOULD
FILL THE CHASM NOW EXISTING, ON PRINCIPLES WHICH WOULD LEAVE INVIOLATE
THE CONSTITUTIONAL FREEDOM OF RELIGION, THE MOST INALIENABLE AND SACRED
OF ALL HUMAN RIGHTS, OVER WHICH THE PEOPLE AND AUTHORITIES OF THIS
STATE, INDIVIDUALLY AND PUBLICLY, HAVE EVER MANIFESTED THE MOST
WATCHFUL JEALOUSY:  AND COULD THIS JEALOUSY BE NOW ALARMED, IN THE
OPINION OF THE LEGISLATURE, BY WHAT IS HERE SUGGESTED, THE IDEA WILL BE
RELINQUISHED ON ANY SURMISE OF DISAPPROBATION WHICH THEY MIGHT THINK
PROPER TO EXPRESS." 

MR. JEFFERSON COMMENTED UPON THE REPORT ON NOVEMBER 2, 1822, IN A
LETTER TO DR. THOMAS COOPER, AS FOLLOWS:  "AND BY BRINGING THE SECTS
TOGETHER, AND MIXING THEM WITH THE MASS OF OTHER STUDENTS, WE SHALL
SOFTEN THEIR ASPERITIES, LIBERALIZE AND NEUTRALIZE THEIR PREJUDICES,
AND MAKE THE GENERAL RELIGION A RELIGION OF PEACE, REASON, AND
MORALITY."  12 FORD, THE WORKS OF THOMAS JEFFERSON, (FED. ED., 1905),
272. 

FN12  3 RANDALL, LIFE OF THOMAS JEFFERSON (1858) 471. 

FN13  19 THE WRITINGS OF THOMAS JEFFERSON (MEMORIAL EDITION, 1904)
449. 

FN14  THE TEXTS OF THE MEMORIAL AND REMONSTRANCE AND THE BILL AGAINST
WHICH IT WAS AIMED, TO WIT, A BILL ESTABLISHING A PROVISION FOR
TEACHERS OF THE CHRISTIAN RELIGION ARE SET FORTH IN EVERSON V. BOARD OF
EDUCATION, 330 U.S. 1, 28, 63-74. 

FN15  SEE, GENERALLY, THE DISSENT OF MR. JUSTICE RUTLEDGE, 330 U.S.
1, 28. 

FN16  330 U.S. AT 72-73: 

"BE IT THEREFORE ENACTED BY THE GENERAL ASSEMBLY, THAT FOR THE
SUPPORT OF CHRISTIAN TEACHERS, PER CENTUM ON THE AMOUNT, OR IN THE
POUND ON THE SUM PAYABLE FOR TAX ON THE PROPERTY WITHIN THIS
COMMONWEALTH, IS HEREBY ASSESSED, AND SHALL BE PAID BY EVERY PERSON
CHARGEABLE WITH THE SAID TAX AT THE TIME THE SAME SHALL BECOME DUE; AND
THE SHERIFFS OF THE SEVERAL COUNTIES SHALL HAVE POWER TO LEVY AND
COLLECT THE SAME IN THE SAME MANNER AND UNDER THE LIKE RESTRICTIONS AND
LIMITATIONS, AS ARE OR MAY BE PRESCRIBED BY THE LAWS FOR RAISING THE
REVENUES OF THIS STATE. 

"AND BE IT ENACTED, THAT FOR EVERY SUM SO PAID, THE SHERIFF OR
COLLECTOR SHALL GIVE A RECEIPT, EXPRESSING THEREIN TO WHAT SOCIETY OF
CHRISTIANS THE PERSON FROM WHOM HE MAY RECEIVE THE SAME SHALL DIRECT
THE MONEY TO BE PAID, KEEPING A DISTINCT ACCOUNT THEREOF IN HIS BOOKS. 
...  " 

FN17  60 STAT. 230, CH. 281, SECS. 4, 11(D)(3). 

FN18  SEE SELECTIVE DRAFT LAW CASES, 245 U.S. 366, 390; QUICK BEAR V.
LEUPP, 210 U.S. 50. 

FN19  ED. CODE OF CAL. (DEERING, 1944) SEC. 8286; 6 IND. STAT. ANN.
(BURNS, 1933) 1945 SUPP. SEC. 28-505A; 1 CODE OF IOWA CH. 299, SEC.
299.2(1946); KY. REV. STAT. (1946) SEC. 158.220; 1 REV. STAT. OF MAINE
(1944) CH. 37, SEC. 131; 2 ANN. LAWS OF MASS. (1945) CH. 76, SEC. 1;
MINN. STAT. (1945) SEC. 132.05; N.Y. EDUCATION LAW SEC. 3210(1); 8
ORE.  COMP.  LAWS ANN. (1940) SEC. 111-3014; 24 PA. STAT. ANN. (PURDON,
1930) 1947 SUPP. SEC. 1563; 1 CODE OF S.D. (1939) SEC. 15.3202; 1 CODE
OF W. VA. (1943) SEC. 1847. 

FN20  EDUCATION LAW SEC. 3210(1) PROVIDES THAT:  "A.  A MINOR
REQUIRED BY THE PROVISIONS OF PART ONE OF THIS ARTICLE TO ATTEND UPON
INSTRUCTION SHALL ATTEND REGULARLY AS PRESCRIBED WHERE HE RESIDES OR IS
EMPLOYED, FOR THE ENTIRE TIME THE APPROPRIATE PUBLIC SCHOOLS OR CLASSES
ARE IN SESSION AND SHALL BE SUBORDINATE AND ORDERLY WHILE SO
ATTENDING. 

"B.  ABSENCE FOR RELIGIOUS OBSERVANCE AND EDUCATION SHALL BE
PERMITTED UNDER RULES THAT THE COMMISSIONER SHALL ESTABLISH." 

ACTING UNDER THE AUTHORITY OF THE NEW YORK LAW, THE STATE
COMMISSIONER OF EDUCATION ISSUED, ON JULY 4, 1940, THESE REGULATIONS: 

"1  ABSENCE OF A PUPIL FROM SCHOOL DURING SCHOOL HOURS FOR RELIGIOUS
OBSERVANCE AND EDUCATION TO BE HAD OUTSIDE THE SCHOOL BUILDING AND
GROUNDS WILL BE EXCUSED UPON THE REQUEST IN WRITING SIGNED BY THE
PARENT OR GUARDIAN OF THE PUPIL. 

"2  THE COURSES IN RELIGIOUS OBSERVANCE AND EDUCATION MUST BE
MAINTAINED AND OPERATED BY OR UNDER THE CONTROL OF A DULY CONSTITUTED
RELIGIOUS BODY OR OF DULY CONSTITUTED RELIGIOUS BODIES. 

"3  PUPILS MUST BE REGISTERED FOR THE COURSES AND A COPY OF THE
REGISTRATION FILED WITH THE LOCAL PUBLIC SCHOOL AUTHORITIES. 

"4  REPORTS OF ATTENDANCE OF PUPILS UPON SUCH COURSES SHALL BE FILED
WITH THE PRINCIPAL OR TEACHER AT THE END OF EACH WEEK. 

"5  SUCH ABSENCE SHALL BE FOR NOT MORE THAN ONE HOUR EACH WEEK AT THE
CLOSE OF A SESSION AT A TIME TO BE FIXED BY THE LOCAL SCHOOL
AUTHORITIES. 

"6  IN THE EVENT THAT MORE THAN ONE SCHOOL FOR RELIGIOUS OBSERVANCE
AND EDUCATION IS MAINTAINED IN ANY DISTRICT, THE HOUR FOR ABSENCE FOR
EACH PARTICULAR PUBLIC SCHOOL IN SUCH DISTRICT SHALL BE THE SAME FOR
ALL SUCH RELIGIOUS SCHOOLS." 

ON NOVEMBER 13, 1940, RULES TO GOVERN THE RELEASED TIME PROGRAM OF
THE NEW YORK CITY SCHOOLS WERE ADOPTED BY THE BOARD OF EDUCATION OF THE
CITY OF NEW YORK.  UNDER THESE RULES THE PRACTICE OF THE RELIGIOUS
EDUCATION PROGRAM IS THIS:  CLASSES IN RELIGIOUS EDUCATION ARE TO BE
HELD OUTSIDE OF SCHOOL BUILDINGS; ESTABLISHMENT OF THE PROGRAM RESTS IN
THE INITIATIVE OF THE CHURCH AND HOME; ENROLLMENT IS VOLUNTARY AND
ACCOMPLISHED BY THIS TECHNIQUE:  THE CHURCH DISTRIBUTES CARDS TO THE
PARENTS AND THESE ARE FILLED OUT AND PRESENTED TO THE SCHOOL; RECORDS
OF ENROLLMENT AND ARRANGEMENTS FOR RELEASE ARE HANDLED BY SCHOOL
AUTHORITIES; DISCIPLINE IS THE RESPONSIBILITY OF THE CHURCH; AND
CHILDREN WHO DO NOT ATTEND ARE KEPT AT SCHOOL AND GIVEN OTHER WORK. 
SEE RULES OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK ADOPTED
NOV. 13, 1940; PUBLIC EDUCATION ASSOCIATION, RELEASED TIME FOR
RELIGIOUS EDUCATION IN NEW YORK CITY'S SCHOOLS (1943); ID. (1945). 

CONSTITUTIONAL APPROVAL BY THE NEW YORK COURT OF APPEALS OF THESE
PRACTICES WAS GIVEN BEFORE THE PASSAGE OF EDUCATION LAW SEC. 3210(1). 
PEOPLE EX REL. LEWIS V. GRAVES, 245 N.Y. 195, 156 N.E. 663. 

FN21  THE NEW YORK CITY PROGRAM IS SUPERVISED BY THE GREATER NEW YORK
COORDINATING COMMITTEE ON RELEASED TIME, A GROUP OF LAYMEN DRAWN FROM
JEWS, PROTESTANTS AND ROMAN CATHOLICS.  THIS COMMITTEE IS AN EXAMPLE OF
A BROAD NATIONAL EFFORT TO BRING ABOUT RELIGIOUS EDUCATION OF CHILDREN
THROUGH COOPERATIVE ACTION OF SCHOOLS AND GROUPS OF MEMBERS OF VARIOUS
RELIGIOUS DENOMINATIONS.  THE METHODS VARY IN DIFFERENT STATES AND
CITIES BUT ARE BASICALLY LIKE THE WORK OF THE NEW YORK CITY COMMITTEE. 
SEE BRIEF SKETCHES OF WEEKDAY CHURCH SCHOOLS, DEPARTMENT OF WEEKDAY
RELIGIOUS EDUCATION, INTERNATIONAL COUNCIL OF RELIGIOUS EDUCATION,
CHICAGO, ILLINOIS (1944). 

FN22  SEE NOTE 20 SUPRA. 

FN23  THE USE OF SCHOOL BUILDINGS IS NOT UNUSUAL.  SEE DAVIS, WEEKDAY
CLASSES IN RELIGIOUS EDUCATION, U.S. OFFICE OF EDUCATION (BULLETIN
1941, NO. 3) 27; NATIONAL EDUCATION ASSOCIATION, THE STATE AND
INTERNATIONAL COUNCIL OF RELIGIOUS EDUCATION ADVISES THAT CHURCH
BUILDINGS BE USED IF POSSIBLE.  SHAVER, REMEMBER THE WEEKDAY,
INTERNATIONAL COUNCIL OF RELIGIOUS EDUCATION (1946). 

"TODAY, APPROXIMATELY TWO THOUSAND COMMUNITIES IN ALL BUT TWO STATES
PROVIDE RELIGIOUS EDUCATION IN COOPERATION WITH THE PUBLIC SCHOOLS FOR
MORE THAN A MILLION AND A HALF OF PUPILS."  SHAVER, THE MOVEMENT FOR
WEEKDAY RELIGIOUS EDUCATION, RELIGIOUS EDUCATION (JAN.-FEB.  1946), P.
7. 

FN24  MANY USES OF RELIGIOUS MATERIAL IN THE PUBLIC SCHOOLS IN A
MANNER THAT HAS SOME RELIGIOUS SIGNIFICANCE HAVE BEEN SANCTIONED BY
STATE COURTS.  THESE PRACTICES HAVE BEEN PERMITTED:  READING SELECTIONS
FROM THE KING JAMES BIBLE WITHOUT COMMENT; READING THE BIBLE AND
REPEATING THE LORD'S PRAYER; TEACHING THE TEN COMMANDMENTS; SAYING
PRAYERS; AND USING TEXTBOOKS BASED UPON THE BIBLE AND EMPHASIZING ITS
FUNDAMENTAL TEACHINGS.  WHEN CONDUCTED IN A SECTARIAN MANNER READING
FROM THE BIBLE AND SINGING HYMNS IN THE SCHOOL'S MORNING EXERCISE HAVE
BEEN PROHIBITED AS HAS USING THE BIBLE AS A TEXTBOOK.  THERE IS A
CONFLICT OF AUTHORITY ON THE QUESTION OF THE CONSTITUTIONALITY OF
WEARING RELIGIOUS GARB WHILE TEACHING IN THE PUBLIC SCHOOLS.  IT HAS
BEEN HELD TO BE CONSTITUTIONAL FOR SCHOOL AUTHORITIES TO PROHIBIT THE
READING OF THE BIBLE IN THE PUBLIC SCHOOLS.  THERE IS A CONFLICT OF
AUTHORITY ON THE CONSTITUTIONALITY OF THE USE OF PUBLIC SCHOOL
BUILDINGS FOR RELIGIOUS SERVICES HELD OUTSIDE OF SCHOOL HOURS.  THE
CONSTITUTIONALITY, UNDER STATE CONSTITUTIONS, OF FURNISHING FREE
TEXTBOOKS AND FREE TRANSPORTATION TO PAROCHIAL SCHOOL CHILDREN IS IN
CONFLICT.  SEE NICHOLS V. HENRY, 301 KY. 434, 191 S.W.2D 930; FINDLEY
V. CITY OF CONNEAUT, 12 OHIO SUPP. 161.  THE EARLIER CASES ARE
COLLECTED IN 5 A.L.R. 866 AND 141 A.L.R. 1144. 

FN25  RULES OF THE HOUSE OF REPRESENTATIVES (1943) RULE VII; SENATE
MANUAL (1947) 6, FN. 2. 

FN26  3 STAT. 297(1816). 

FN27  ARMY REG., NO. 60-5(1944); U.S. NAVY REG. (1920), CH. 1, SEC. 2
AND CH. 34, SECS. 1-2. 

FN28  58 STAT. 289. 

FN29 BOARD OF EDUCATION RULES, CH. VI, SEC. 4. 

FN30  REG. FOR THE U.S. CORPS OF CADETS (1947) 47:  "ATTENDANCE AT
CHAPEL IS PART OF A CADET'S TRAINING; NO CADET WILL BE EXEMPTED.  EACH
CADET WILL RECEIVE RELIGIOUS TRAINING IN ONE OF THE THREE PRINCIPAL
FAITHS:  CATHOLIC, PROTESTANT, OR JEWISH."  U.S. NAVAL ACADEMY REG.,
ART. 4301(B): "MIDSHIPMEN SHALL ATTEND CHURCH SERVICES ON SUNDAYS AT
THE NAVAL ACADEMY CHAPEL OR AT ONE OF THE REGULARLY ESTABLISHED
CHURCHES IN THE CITY OF ANNAPOLIS." 

MORNING PRAYERS ARE ALSO REQUIRED AT ANNAPOLIS.  U.S. NAVAL ACADEMY
REG., ART. 4301(A):  "DAILY, EXCEPT ON SUNDAYS, A CHAPLAIN WILL CONDUCT
PRAYERS IN THE MESSHALL, IMMEDIATELY BEFORE BREAKFAST."  PROTESTANT AND
CATHOLIC CHAPLAINS TAKE THEIR TURN IN LEADING THESE PRAYERS. 

FN31  THE PRINCIPLES OF THE FIRST AMENDMENT WERE ABSORBED BY THE
FOURTEENTH AMENDMENT.  PENNEKAMP V. FLORIDA, 328 U.S. 331, 335. 

FN32  SEE WHITNEY V. CALIFORNIA, 274 U.S. 357, 371; REYNOLDS V.
UNITED STATES, 98 U.S. 145, 166; CANTWELL V. CONNECTICUT, 310 U.S. 296,
303; COX V. NEW HAMPSHIRE, 312 U.S. 569, 574, 576; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568, 571; PRINCE V. MASSACHUSETTS, 321 U.S. 158. 
FN33  CF. BOB-LO EXCURSION CO. V. MICHIGAN, 333 U.S. 28. 

FN34  HIGGINS V. SMITH, 308 U.S. 473; HELVERING V. CLIFFORD, 309 U.S.
331; COMM'R V. TOWER, 327 U.S. 280; LUSTHAUS V. COMM'R, 327 U.S. 293. 
..END :





IN RE OLIVER, 333 U.S. 257 


NO. 215.  ARGUED DECEMBER 16, 1947.  - DECIDED MARCH 8, 1948.  - 318
MICH. 7, 27 N.W.2D 323, REVERSED. 


IN OBEDIENCE TO A SUBPOENA, PETITIONER APPEARED AS A WITNESS BEFORE A
MICHIGAN CIRCUIT JUDGE WHO WAS THEN CONDUCTING, IN ACCORDANCE WITH
MICHIGAN LAW, A SECRET "ONE-MAN GRAND JURY" INVESTIGATION OF CRIME. 
AFTER PETITIONER HAD GIVEN CERTAIN TESTIMONY, THE JUDGE-GRAND JURY,
ACTING IN THE BELIEF THAT HIS TESTIMONY WAS FALSE AND EVASIVE (WHICH
BELIEF WAS BASED PARTLY ON TESTIMONY GIVEN BY AT LEAST ONE OTHER
WITNESS IN PETITIONER'S ABSENCE), SUMMARILY CHARGED HIM WITH CONTEMPT,
CONVICTED HIM, AND SENTENCED HIM TO SIXTY DAYS IN JAIL.  THESE
PROCEEDINGS WERE SECRET AND PETITIONER HAD NO OPPORTUNITY TO SECURE
COUNSEL, TO PREPARE HIS DEFENSE, TO CROSS-EXAMINE THE OTHER GRAND-JURY
WITNESS, OR TO SUMMON WITNESSES TO REFUTE THE CHARGE AGAINST HIM. 
HELD: 

1.  THE SECRECY OF PETITIONER'S TRIAL FOR CRIMINAL CONTEMPT VIOLATED
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 266-273, 278. 

(A)  THE REASONS ADVANCED TO SUPPORT THE SECRECY OF GRAND-JURY
INVESTIGATIVE PROCEEDINGS DO NOT JUSTIFY SECRECY IN THE TRIAL OF A
DEFENDANT ACCUSED OF AN OFFENSE FOR WHICH HE MAY BE FINED OR SENT TO
JAIL.  PP. 264-266. 

(B)  AN ACCUSED IS ENTITLED TO A PUBLIC TRIAL, AT LEAST TO THE EXTENT
OF HAVING HIS FRIENDS, RELATIVES AND COUNSEL PRESENT - NO MATTER WITH
WHAT OFFENSE HE MAY BE CHARGED.  PP. 271-272. 

2.  THE FAILURE TO AFFORD PETITIONER A REASONABLE OPPORTUNITY TO
DEFEND HIMSELF AGAINST THE CHARGE OF GIVING FALSE AND EVASIVE TESTIMONY
WAS A DENIAL OF DUE PROCESS OF LAW.  PP. 273-278. 

(A)  AS A MINIMUM, DUE PROCESS REQUIRES THAT AN ACCUSED BE GIVEN
REASONABLE NOTICE OF THE CHARGE AGAINST HIM, THE RIGHT TO EXAMINE THE
WITNESSES AGAINST HIM, THE RIGHT TO TESTIFY IN HIS OWN BEHALF, AND THE
RIGHT TO BE REPRESENTED BY COUNSEL.  P. 273. 

(B)  THE CIRCUMSTANCES OF THIS CASE DID NOT JUSTIFY DENIAL OF THESE
RIGHTS ON THE GROUND THAT THE TRIAL WAS FOR CONTEMPT OF COURT COMMITTED
IN THE COURT'S ACTUAL PRESENCE.  EX PARTE TERRY, 128 U.S. 289,
DISTINGUISHED.  PP. 273-278. 

IN RE OLIVER. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

IN A HABEAS CORPUS PROCEEDING, THE STATE SUPREME COURT DENIED
PETITIONER'S RELEASE FROM IMPRISONMENT UPON A SENTENCE FOR CONTEMPT. 
318 MICH. 7, 27 N.W.2D 323.  THIS COURT GRANTED CERTIORARI.  332 U.S.
755.  REVERSED, P. 278. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A MICHIGAN CIRCUIT JUDGE SUMMARILY SENT THE PETITIONER TO JAIL FOR
CONTEMPT OF COURT.  WE MUST DETERMINE WHETHER HE WAS DENIED THE
PROCEDURAL DUE PROCESS GUARANTEED BY THE FOURTEENTH AMENDMENT. 

IN OBEDIENCE TO A SUBPOENA THE PETITIONER APPEARED AS A WITNESS
BEFORE A MICHIGAN CIRCUIT JUDGE WHO WAS THEN CONDUCTING, IN ACCORDANCE
WITH MICHIGAN LAW, A "ONE-MAN GRAND JURY" INVESTIGATION INTO ALLEGED
GAMBLING AND OFFICIAL CORRUPTION.  THE INVESTIGATION PRESUMABLY TOOK
PLACE IN THE JUDGE'S CHAMBERS, THOUGH THAT IS NOT CERTAIN.  TWO OTHER
CIRCUIT JUDGES WERE PRESENT IN AN ADVISORY CAPACITY.  FN1  A PROSECUTOR
MAY HAVE BEEN PRESENT.  A STENOGRAPHER WAS MOST LIKELY THERE.  THE
RECORD DOES NOT SHOW WHAT OTHER MEMBERS, IF ANY, OF THE JUDGE'S
INVESTIGATORIAL STAFF PARTICIPATED IN THE PROCEEDINGS.  IT IS CERTAIN,
HOWEVER, THAT THE PUBLIC WAS EXCLUDED - THE QUESTIONING WAS SECRET IN
ACCORDANCE WITH THE TRADITIONAL GRAND JURY METHOD. 

AFTER PETITIONER HAD GIVEN CERTAIN TESTIMONY, THE JUDGEGRAND JURY,
STILL IN SECRET SESSION, TOLD PETITIONER THAT NEITHER HE NOR HIS
ADVISORS BELIEVED PETITIONER'S STORY - THAT IT DID NOT "JELL."  THIS
BELIEF OF THE JUDGE-GRAND JURY WAS NOT BASED ENTIRELY ON WHAT THE
PETITIONER HAD TESTIFIED.  AS WILL LATER BE SEEN, IT RESTED IN PART ON
BELIEFS OR SUSPICIONS OF THE JUDGE-JURY DERIVED FROM THE TESTIMONY OF
AT LEAST ONE OTHER WITNESS WHO HAD PREVIOUSLY GIVEN EVIDENCE IN
SECRET.  PETITIONER HAD NOT BEEN PRESENT WHEN THAT WITNESS TESTIFIED
AND SO FAR AS APPEARS WAS NOT EVEN AWARE THAT HE HAD TESTIFIED.  BASED
ON ITS BELIEFS THUS FORMED - THAT PETITIONER'S STORY DID NOT "JELL" -
THE JUDGEGRAND JURY IMMEDIATELY CHARGED HIM WITH CONTEMPT, IMMEDIATELY
CONVICTED HIM, AND IMMEDIATELY SENTENCED HIM TO SIXTY DAYS IN JAIL. 
UNDER THESE CIRCUMSTANCES OF HASTE AND SECRECY, PETITIONER, OF COURSE,
HAD NO CHANCE TO ENJOY THE BENEFITS OF COUNSEL, NO CHANCE TO PREPARE
HIS DEFENSE, AND NO OPPORTUNITY EITHER TO CROSS-EXAMINE THE OTHER GRAND
JURY WITNESS OR TO SUMMON WITNESSES TO REFUTE THE CHARGE AGAINST HIM. 

THREE DAYS LATER A LAWYER FILED ON PETITIONER'S BEHALF IN THE
MICHIGAN SUPREME COURT THE PETITION FOR HABEAS CORPUS NOW UNDER
CONSIDERATION.  IT ALLEGED AMONG OTHER THINGS THAT THE PETITIONER'S
ATTORNEY HAD NOT BEEN ALLOWED TO CONFER WITH HIM AND THAT, TO THE BEST
OF THE ATTORNEY'S KNOWLEDGE, THE PETITIONER WAS NOT HELD IN JAIL UNDER
ANY JUDGMENT, DECREE OR EXECUTION, AND WAS "NOT CONFINED BY VIRTUE OF
ANY LEGAL COMMITMENT DIRECTED TO THE SHERIFF AS REQUIRED BY LAW."  AN
ORDER WAS THEN ENTERED SIGNED BY THE CIRCUIT JUDGE THAT HE HAD WHILE
"SITTING AS A ONE-MAN GRAND JURY" CONVICTED THE PETITIONER OF CONTEMPT
OF COURT BECAUSE PETITIONER HAD TESTIFIED "EVASIVELY" AND HAD GIVEN
"CONTRADICTORY ANSWERS" TO QUESTIONS.  THE ORDER DIRECTED THAT
PETITIONER "BE CONFINED IN THE COUNTY JAIL  ...  FOR A PERIOD OF SIXTY
(60) DAYS OR UNTIL SUCH TIME AS HE  ...  SHALL APPEAR AND ANSWER THE
QUESTIONS HERETOFORE PROPOUNDED TO HIM BY THIS COURT ...  " 

THE SUPREME COURT OF MICHIGAN, ON GROUNDS DETAILED IN THE COMPANION
CASE OF IN RE HARTLEY, 317 MICH. 441, 27 N.W.2D 48,  FN2  REJECTED
PETITIONER'S CONTENTION THAT THE SUMMARY MANNER IN WHICH HE HAD BEEN
SENTENCED TO JAIL IN THE SECRECY OF THE GRAND JURY CHAMBER HAD DEPRIVED
HIM OF HIS LIBERTY WITHOUT AFFORDING HIM THE KIND OF NOTICE,
OPPORTUNITY TO DEFEND HIMSELF, AND TRIAL WHICH THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT REQUIRES.  FN3  IN RE OLIVER, 318 MICH. 7,
27 N.W.2D 323.  WE GRANTED CERTIORARI TO CONSIDER THESE PROCEDURAL DUE
PROCESS QUESTIONS. 

THE CASE REQUIRES A BRIEF EXPLANATION OF MICHIGAN'S UNIQUE ONE-MAN
GRAND JURY SYSTEM.  FN4  THAT STATE'S FIRST CONSTITUTION (1835), LIKE
THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION, REQUIRED THAT MOST
CRIMINAL PROSECUTIONS BE BEGUN BY PRESENTMENT OR INDICTMENT OF A GRAND
JURY.  ART. I, SEC. 11.  THIS COMPULSORY PROVISION WAS LEFT OUT OF THE
1850 CONSTITUTION AND FROM THE PRESENT CONSTITUTION (1908).  HOWEVER,
MICHIGAN JUDGES MAY STILL IN THEIR DISCRETION SUMMON GRAND JURIES, BUT
WE ARE TOLD BY THE ATTORNEY GENERAL THAT THIS DISCRETION IS RARELY
EXERCISED AND THAT THE "ONE-MAN GRAND JURY" HAS TAKEN THE PLACE OF THE
OLD MICHIGAN 16 TO 23-MEMBER GRAND JURY, PARTICULARLY IN PROBES OF
ALLEGED MISCONDUCT OF PUBLIC OFFICIALS. 

THE ONE-MAN GRAND JURY LAW WAS PASSED IN 1917 FOLLOWING A
RECOMMENDATION OF THE STATE BAR ASSOCIATION THAT, IN THE INTEREST OF
MORE RIGOROUS LAW ENFORCEMENT, GREATER EMPHASIS SHOULD BE PUT UPON THE
"INVESTIGATIVE PROCEDURE" FOR "PROBING" AND FOR "DETECTING" CRIME.  FN5
WITH THIS NEED UPPERMOST IN ITS THINKING THE BAR ASSOCIATION
RECOMMENDED A BILL WHICH PROVIDED THAT JUSTICES OF THE PEACE BE VESTED
WITH THE INQUISITORIAL POWERS TRADITIONALLY CONFERRED ONLY ON CORONERS
AND GRAND JURIES.  THE BILL AS PASSED IMPOSED THE RECOMMENDED
INVESTIGATORY POWERS NOT ONLY ON JUSTICES OF THE PEACE, BUT ON POLICE
JUDGES AND JUDGES OF COURTS OF RECORD AS WELL.  MICH. LAWS 1917, ACT
196. 

WHENEVER THIS JUDGE-GRAND JURY MAY SUMMON A WITNESS TO APPEAR, IT IS
HIS DUTY TO GO AND TO ANSWER ALL MATERIAL QUESTIONS THAT DO NOT
INCRIMINATE HIM.  SHOULD HE FAIL TO APPEAR, FAIL TO ANSWER MATERIAL
QUESTIONS, OR SHOULD THE JUDGE-GRAND JURY BELIEVE HIS EVIDENCE FALSE
AND EVASIVE, OR DELIBERATELY CONTRADICTORY, HE MAY BE FOUND GUILTY OF
CONTEMPT.  THIS OFFENSE MAY BE PUNISHABLE BY A FINE OF NOT MORE THAN
ONE HUNDRED DOLLARS, OR IMPRISONMENT IN THE COUNTY JAIL NOT EXCEEDING
SIXTY DAYS, OR BOTH, AT THE DISCRETION OF THE JUDGE-GRAND JURY.  IF
AFTER HAVING BEEN SO SENTENCED HE APPEARS AND SATISFACTORILY ANSWERS
THE QUESTIONS PROPOUNDED BY THE JUDGE-JURY, HIS SENTENCE MAY, WITHIN
THE JUDGE-JURY'S DISCRETION, BE COMMUTED OR SUSPENDED.  AT THE END OF
HIS FIRST SENTENCE HE CAN BE RESUMMONED AND SUBJECTED TO THE SAME
INQUIRIES.  SHOULD THE JUDGE-JURY AGAIN BELIEVE HIS ANSWERS FALSE AND
EVASIVE, OR CONTRADICTORY, HE CAN BE SENTENCED TO SERVE SIXTY DAYS MORE
UNLESS HE REAPPEARS BEFORE THE JUDGE-JURY DURING THE SECOND 60-DAY
PERIOD AND SATISFACTORILY ANSWERS THE QUESTIONS, AND THE JUDGE-JURY
WITHIN ITS DISCRETION THEN DECIDES TO COMMUTE OR SUSPEND HIS SENTENCE. 
FN6 

IN CARRYING OUT THIS AUTHORITY A JUDGE-GRAND JURY IS AUTHORIZED TO
APPOINT ITS OWN PROSECUTORS, DETECTIVES AND AIDES AT PUBLIC EXPENSE,
FN7  ALL OR ANY OF WHOM MAY, AT THE DISCRETION OF THE JUSTICE OF THE
PEACE OR JUDGE, BE ADMITTED TO THE INQUIRY.  MICH. STAT. ANN. SEC.
28.944(HENDERSON 1938).  A WITNESS MAY BE ASKED QUESTIONS ON ALL
SUBJECTS AND NEED NOT BE ADVISED OF HIS PRIVILEGE AGAINST SELF
INCRIMINATION, EVEN THOUGH THE QUESTIONING IS IN SECRET.  FN8  AND
THESE SECRET INTERROGATIONS CAN BE CARRIED ON DAY OR NIGHT, IN A PUBLIC
PLACE OR A "HIDEOUT," A COURTHOUSE, AN OFFICE BUILDING, A HOTEL ROOM, A
HOME, OR A PLACE OF BUSINESS; SO WELL IS THIS AMBULATORY POWER
UNDERSTOOD IN MICHIGAN THAT THE ONE-MAN GRAND JURY IS ALSO POPULARLY
REFERRED TO AS THE "PORTABLE GRAND JURY."  FN9 

IT WAS A CIRCUIT COURT JUDGE-GRAND JURY BEFORE WHICH PETITIONER
TESTIFIED.  THAT JUDGE-JURY FILED IN THE STATE SUPREME COURT AN ANSWER
TO THIS PETITION FOR HABEAS CORPUS.  THE ANSWER CONTAINED FRAGMENTS OF
WHAT WAS APPARENTLY A STENOGRAPHIC TRANSCRIPT OF PETITIONER'S TESTIMONY
GIVEN BEFORE THE GRAND JURY.  IT WAS THESE FRAGMENTS OF TESTIMONY, SO
THE ANSWER STATED, THAT THE "GRAND JURY" HAD CONCLUDED TO BE "FALSE AND
EVASIVE."  THE PETITIONER THEN FILED A VERIFIED MOTION WITH THE STATE
SUPREME COURT SEEKING TO HAVE THE COMPLETE TRANSCRIPT OF HIS TESTIMONY
BEFORE THE JUDGE-JURY PRODUCED FOR THE HABEAS CORPUS HEARING.  HE
ALLEGED THAT A FULL REPORT OF HIS TESTIMONY WOULD DISCLOSE THAT HE HAD
FREELY, PROMPTLY, AND TO THE BEST OF HIS ABILITY, ANSWERED ALL
QUESTIONS ASKED, AND THAT THE FULL TRANSCRIPT WOULD REFUTE THE CHARGE
THAT HE HAD TESTIFIED EVASIVELY OR FALSELY.  IN HIS ANSWER TO THE
MOTION THE CIRCUIT JUDGE DID NOT DENY THESE ALLEGATIONS.  HOWEVER, HE
ASSERTED THAT THE FRAGMENTS CONTAINED IN THE ORIGINAL ANSWER SHOWED
"ALL OF THE GRAND JURY TESTIMONY NECESSARY TO THE PRESENT PROCEEDING"
AND THAT "THE FULL DISCLOSURE OF PETITIONER'S TESTIMONY WOULD SERIOUSLY
RETARD GRAND JURY ACTIVITIES."  THE STATE SUPREME COURT THEN DENIED THE
PETITIONER'S MOTION.  THUS WHEN THAT COURT LATER DISMISSED THE PETITION
FOR HABEAS CORPUS IT HAD SEEN ONLY A COPY OF A PORTION OF THE RECORD OF
THE TESTIMONY GIVEN BY THE PETITIONER. 

THE PETITIONER DOES NOT HERE CHALLENGE THE CONSTITUTIONAL POWER OF
MICHIGAN TO GRANT TRADITIONAL INQUISITORIAL GRAND JURY POWER TO A
SINGLE JUDGE, AND THEREFORE WE DO NOT CONCERN OURSELVES WITH THAT
QUESTION.  IT HAS LONG BEEN RECOGNIZED IN THIS COUNTRY HOWEVER THAT THE
TRADITIONAL 12 TO 23-MEMBER GRAND JURIES MAY EXAMINE WITNESSES IN
SECRET SESSIONS.  OATHS OF SECRECY ARE ORDINARILY TAKEN BOTH BY THE
MEMBERS OF SUCH GRAND JURIES AND BY WITNESSES BEFORE THEM.  MANY
REASONS HAVE BEEN ADVANCED TO SUPPORT GRAND JURY SECRECY.  SEE, E.G.,
HALE V. HENKEL, 201 U.S. 43, 58-66; STATE V. BRANCH, 68 N.C. 186.  BUT
THOSE REASONS HAVE NEVER BEEN THOUGHT TO JUSTIFY SECRECY IN THE TRIAL
OF AN ACCUSED CHARGED WITH VIOLATION OF LAW FOR WHICH HE MAY BE FINED
OR SENT TO JAIL.  GRAND JURIES INVESTIGATE, AND THE USUAL END OF THEIR
INVESTIGATION IS EITHER A REPORT, A "NO-BILL" OR AN INDICTMENT.  THEY
DO NOT TRY AND THEY DO NOT CONVICT.  THEY RENDER NO JUDGMENT.  WHEN
THEIR WORK IS FINISHED BY THE RETURN OF AN INDICTMENT, IT CANNOT BE
USED AS EVIDENCE AGAINST THE PERSON INDICTED.  NOR MAY HE BE FINED OR
SENTENCED TO JAIL UNTIL HE HAS BEEN TRIED AND CONVICTED AFTER HAVING
BEEN AFFORDED THE PROCEDURAL SAFEGUARDS REQUIRED BY DUE PROCESS OF
LAW.  EVEN WHEN WITNESSES BEFORE GRAND JURIES REFUSE TO ANSWER PROPER
QUESTIONS, THE GRAND JURIES DO NOT ADJUDGE THE WITNESSES GUILTY OF
CONTEMPT OF COURT IN SECRET OR IN PUBLIC OR AT ALL.  FN10  WITNESSES
WHO REFUSE TO TESTIFY BEFORE GRAND JURIES ARE TRIED ON CONTEMPT CHARGES
BEFORE JUDGES SITTING IN OPEN COURT.  AND THOUGH THE POWERS OF A JUDGE
EVEN WHEN ACTING AS A ONE-MAN GRAND JURY MAY BE, AS MICHIGAN HOLDS,
JUDICIAL IN THEIR NATURE,  FN11  THE DUE PROCESS CLAUSE MAY APPLY WITH
ONE EFFECT ON THE JUDGE'S GRAND JURY INVESTIGATION, BUT WITH QUITE A
DIFFERENT EFFECT WHEN THE JUDGE-GRAND JURY SUDDENLY MAKES A WITNESS
BEFORE IT A DEFENDANT IN A CONTEMPT CASE. 

HERE WE ARE CONCERNED, NOT WITH PETITIONER'S RIGHTS AS A WITNESS IN A
SECRET GRAND JURY SESSION, BUT WITH HIS RIGHTS AS A DEFENDANT IN A
CONTEMPT PROCEEDING.  THE POWERS OF THE JUDGE-GRAND JURY WHO TRIED AND
CONVICTED HIM IN SECRET AND SENTENCED HIM TO JAIL ON A CHARGE OF FALSE
AND EVASIVE SWEARING MUST LIKEWISE BE MEASURED, NOT BY THE LIMITATIONS
APPLICABLE TO GRAND JURY PROCEEDINGS, BUT BY THE CONSTITUTIONAL
STANDARDS APPLICABLE TO COURT PROCEEDINGS IN WHICH AN ACCUSED MAY BE
SENTENCED TO FINE OR IMPRISONMENT OR BOTH.  THUS OUR FIRST QUESTION IS
THIS:  CAN AN ACCUSED BE TRIED AND CONVICTED FOR CONTEMPT OF COURT IN
GRAND JURY SECRECY? 

FIRST.  COUNSEL HAVE NOT CITED AND WE HAVE BEEN UNABLE TO FIND A
SINGLE INSTANCE OF A CRIMINAL TRIAL CONDUCTED IN CAMERA IN ANY FEDERAL,
FN12  STATE, OR MUNICIPAL COURT DURING THE HISTORY OF THIS COUNTRY. 
NOR HAVE WE FOUND ANY RECORD OF EVEN ONE SUCH SECRET CRIMINAL TRIAL IN
ENGLAND SINCE ABOLITION OF THE COURT OF STAR CHAMBER IN 1641, AND
WHETHER THAT COURT EVER CONVICTED PEOPLE SECRETLY IS IN DISPUTE. 
SUMMARY TRIALS FOR ALLEGED MISCONDUCT CALLED CONTEMPT OF COURT  FN13
HAVE NOT BEEN REGARDED AS AN EXCEPTION TO THIS UNIVERSAL RULE AGAINST
SECRET TRIALS, UNLESS SOME OTHER MICHIGAN ONE-MAN GRAND JURY CASE MAY
REPRESENT SUCH AN EXCEPTION. 

THIS NATION'S ACCEPTED PRACTICE OF GUARANTEEING A PUBLIC TRIAL TO AN
ACCUSED HAS ITS ROOTS IN OUR ENGLISH COMMON LAW HERITAGE.  THE EXACT
DATE OF ITS ORIGIN IS OBSCURE, BUT IT LIKELY EVOLVED LONG BEFORE THE
SETTLEMENT OF OUR LAND AS AN ACCOMPANIMENT OF THE ANCIENT INSTITUTION
OF JURY TRIAL.  FN14  IN THIS COUNTRY THE GUARANTEE TO AN ACCUSED OF
THE RIGHT TO A PUBLIC TRIAL FIRST APPEARED IN A STATE CONSTITUTION IN
1776.  FN15  FOLLOWING THE RATIFICATION IN 1791 OF THE FEDERAL
CONSTITUTION'S SIXTH AMENDMENT, WHICH COMMANDS THAT "IN ALL CRIMINAL
PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC
TRIAL  ...  "  MOST OF THE ORIGINAL STATES AND THOSE SUBSEQUENTLY
ADMITTED TO THE UNION ADOPTED SIMILAR CONSTITUTIONAL PROVISIONS.  FN16
TODAY ALMOST WITHOUT EXCEPTION  FN17  EVERY STATE BY CONSTITUTION N18,
STATUTE,  FN19  OR JUDICIAL DECISION, FN20  REQUIRES THAT ALL CRIMINAL
TRIALS BE OPEN TO THE PUBLIC. 

THE TRADITIONAL ANGLO-AMERICAN DISTRUST FOR SECRET TRIALS HAS BEEN
VARIOUSLY ASCRIBED TO THE NOTORIOUS USE OF THIS PRACTICE BY THE SPANISH
INQUISITION,  FN21  TO THE EXCESSES OF THE ENGLISH COURT OF STAR
CHAMBER,  FN22  AND TO THE FRENCH MONARCHY'S ABUSE OF THE LETTRE DE
CACHET.  FN23 ALL OF THESE INSTITUTIONS OBVIOUSLY SYMBOLIZED A MENACE
TO LIBERTY.  IN THE HANDS OF DESPOTIC GROUPS EACH OF THEM HAD BECOME AN
INSTRUMENT FOR THE SUPPRESSION OF POLITICAL AND RELIGIOUS HERESIERS IN
RUTHLESS DISREGARD OF THE RIGHT OF AN ACCUSED TO A FAIR TRIAL. 
WHATEVER OTHER BENEFITS THE GUARANTEE TO AN ACCUSED THAT HIS TRIAL BE
CONDUCTED IN PUBLIC MAY CONFER UPON OUR SOCIETY,  FN24  THE GUARANTEE
HAS ALWAYS BEEN RECOGNIZED AS A SAFEGUARD AGAINST ANY ATTEMPT TO EMPLOY
OUR COURTS AS INSTRUMENTS OF PERSECUTION.  THE KNOWLEDGE THAT EVERY
CRIMINAL TRIAL IS SUBJECT TO CONTEMPORANEOUS REVIEW IN THE FORUM OF
PUBLIC OPINION IS AN EFFECTIVE RESTRAINT ON POSSIBLE ABUSE OF JUDICIAL
POWER.  FN25  ONE NEED NOT WHOLLY AGREE WITH A STATEMENT MADE ON THE
SUBJECT BY JEREMY BENTHAM OVER 120 YEARS AGO TO APPRECIATE THE FEAR OF
SECRET TRIALS FELT BY HIM, HIS PREDECESSORS AND CONTEMPORARIES. 
BENTHAM SAID:  "  ...  SUPPOSE THE PROCEEDINGS TO BE COMPLETELY SECRET,
AND THE COURT, ON THE OCCASION, TO CONSIST OF NO MORE THAN A SINGLE
JUDGE,  - THAT JUDGE WILL BE AT ONCE INDOLENT AND ARBITRARY:  HOW
CORRUPT SOEVER HIS INCLINATION MAY BE, IT WILL FIND NO CHECK, AT ANY
RATE NO TOLERABLY EFFICIENT CHECK, TO OPPOSE IT.  WITHOUT PUBLICITY,
ALL OTHER CHECKS ARE INSUFFICIENT:  IN COMPARISON OF PUBLICITY, ALL
OTHER CHECKS ARE OF SMALL ACCOUNT.  RECORDATION, APPEAL, WHATEVER OTHER
INSTITUTIONS MIGHT PRESENT THEMSELVES IN THE CHARACTER OF CHECKS, WOULD
BE FOUND TO OPERATE RATHER AS CLOAKS THAN CHECKS; AS CLOAKS IN REALITY,
AS CHECKS ONLY IN APPEARANCE."  FN26 

IN GIVING CONTENT TO THE CONSTITUTIONAL AND STATUTORY COMMANDS THAT
AN ACCUSED BE GIVEN A PUBLIC TRIAL, THE STATE AND FEDERAL COURTS HAVE
DIFFERED OVER WHAT GROUPS OF SPECTATORS, IF ANY, COULD PROPERLY BE
EXCLUDED FROM A CRIMINAL TRIAL.  FN27  BUT, UNLESS IN MICHIGAN AND IN
ONE-MAN GRAND JURY CONTEMPT CASES, NO COURT IN THIS COUNTRY HAS EVER
BEFORE HELD, SO FAR AS WE CAN FIND, THAT AN ACCUSED CAN BE TRIED,
CONVICTED, AND SENT TO JAIL, WHEN EVERYBODY ELSE IS DENIED ENTRANCE TO
THE COURT, EXCEPT THE JUDGE AND HIS ATTACHES.  FN28  AND WITHOUT
EXCEPTION ALL COURTS HAVE HELD THAT AN ACCUSED IS AT THE VERY LEAST
ENTITLED TO HAVE HIS FRIENDS, RELATIVES AND COUNSEL PRESENT, NO MATTER
WITH WHAT OFFENSE HE MAY BE CHARGED.  FN29  IN GAINES V. WASHINGTON,
277 U.S. 81, 85-86, THIS COURT ASSUMED THAT A CRIMINAL TRIAL CONDUCTED
IN SECRET WOULD VIOLATE THE PROCEDURAL REQUIREMENTS OF THE FOURTEENTH
AMENDMENT'S DUE PROCESS CLAUSE, ALTHOUGH ITS ACTUAL HOLDING THERE WAS
THAT NO VIOLATION HAD IN FACT OCCURRED, SINCE THE TRIAL COURT'S ORDER
BARRING THE GENERAL PUBLIC HAD NOT BEEN ENFORCED.  CERTAIN PROCEEDINGS
IN A JUDGE'S CHAMBERS, INCLUDING CONVICTIONS FOR CONTEMPT OF COURT,
HAVE OCCASIONALLY BEEN COUNTENANCED BY STATE COURTS,  FN30  BUT THERE
HAS NEVER BEEN ANY INTIMATION THAT ALL OF THE PUBLIC, INCLUDING THE
ACCUSED'S RELATIVES, FRIENDS, AND COUNSEL, WERE BARRED FROM THE TRIAL
CHAMBER. 

IN THE CASE BEFORE US, THE PETITIONER WAS CALLED AS A WITNESS TO
TESTIFY IN SECRET BEFORE A ONE-MAN GRAND JURY CONDUCTING A GRAND JURY
INVESTIGATION.  IN THE MIDST OF PETITIONER'S TESTIMONY THE PROCEEDINGS
ABRUPTLY CHANGED.  THE INVESTIGATION BECAME A "TRIAL," THE GRAND JURY
BECAME A JUDGE, AND THE WITNESS BECAME AN ACCUSED CHARGED WITH CONTEMPT
OF COURT - ALL IN SECRET.  FOLLOWING A CHARGE, CONVICTION AND SENTENCE,
THE PETITIONER WAS LED AWAY TO PRISON - STILL WITHOUT ANY BREAK IN THE
SECRECY.  EVEN IN JAIL, ACCORDING TO UNDENIED ALLEGATIONS, HIS LAWYER
WAS DENIED AN OPPORTUNITY TO SEE AND CONFER WITH HIM.  AND THAT WAS NOT
THE END OF SECRECY.  HIS LAWYER FILED IN THE STATE SUPREME COURT THIS
HABEAS CORPUS PROCEEDING.  EVEN THERE, THE MANTLE OF SECRECY ENVELOPED
THE TRANSACTION AND THE STATE SUPREME COURT ORDERED HIM SENT BACK TO
JAIL WITHOUT EVER HAVING SEEN A RECORD OF HIS TESTIMONY, AND WITHOUT
KNOWING ALL THAT TOOK PLACE IN THE SECRECY OF THE JUDGE'S CHAMBERS.  IN
VIEW OF THIS NATION'S HISTORIC DISTRUST OF SECRET PROCEEDINGS, THEIR
INHERENT DANGERS TO FREEDOM, AND THE UNIVERSAL REQUIREMENT OF OUR
FEDERAL AND STATE GOVERNMENTS THAT CRIMINAL TRIALS BE PUBLIC, THE
FOURTEENTH AMENDMENT'S GUARANTEE THAT NO ONE SHALL BE DEPRIVED OF HIS
LIBERTY WITHOUT DUE PROCESS OF LAW MEANS AT LEAST THAT AN ACCUSED
CANNOT BE THUS SENTENCED TO PRISON. 

SECOND.  WE FURTHER HOLD THAT FAILURE TO AFFORD THE PETITIONER A
REASONABLE OPPORTUNITY TO DEFEND HIMSELF AGAINST THE CHARGE OF FALSE
AND EVASIVE SWEARING WAS A DENIAL OF DUE PROCESS OF LAW.  A PERSON'S
RIGHT TO REASONABLE NOTICE OF A CHARGE AGAINST HIM, AND AN OPPORTUNITY
TO BE HEARD IN HIS DEFENSE - A RIGHT TO HIS DAY IN COURT - ARE BASIC IN
OUR SYSTEM OF JURISPRUDENCE; AND THESE RIGHTS INCLUDE, AS A MINIMUM, A
RIGHT TO EXAMINE THE WITNESSES AGAINST HIM, TO OFFER TESTIMONY, AND TO
BE REPRESENTED BY COUNSEL.  FN31  MICHIGAN, NOT DENYING THE EXISTENCE
OF THESE RIGHTS IN CRIMINAL CASES GENERALLY, APPARENTLY CONCEDES THAT
THE SUMMARY CONVICTION HERE WOULD HAVE BEEN A DENIAL OF PROCEDURAL DUE
PROCESS BUT FOR THE NATURE OF THE CHARGE, NAMELY, A CONTEMPT OF COURT,
COMMITTED, THE STATE URGES, IN THE COURT'S ACTUAL PRESENCE. 

IT IS TRUE THAT COURTS HAVE LONG EXERCISED A POWER SUMMARILY TO
PUNISH CERTAIN CONDUCT COMMITTED IN OPEN COURT WITHOUT NOTICE,
TESTIMONY OR HEARING.  EX PARTE TERRY, 128 U.S. 289, WAS SUCH A CASE. 
THERE TERRY COMMITTED ASSAULT ON THE MARSHAL WHO WAS AT THE MOMENT
REMOVING A HECKLER FROM THE COURTROOM.  THE "VIOLENCE AND MISCONDUCT"
OF BOTH THE HECKLER AND THE MARSHAL'S ASSAILANT OCCURRED WITHIN THE
"PERSONAL VIEW" OF THE JUDGE, "UNDER HIS OWN EYE," AND ACTUALLY
INTERRUPTED THE TRIAL OF A CAUSE THEN UNDER WAY.  THIS COURT HELD THAT
UNDER SUCH CIRCUMSTANCES A JUDGE HAS POWER TO PUNISH AN OFFENDER AT
ONCE, WITHOUT NOTICE AND WITHOUT HEARING, ALTHOUGH HIS CONDUCT MAY ALSO
BE PUNISHABLE AS A CRIMINAL OFFENSE.  THIS COURT REACHED ITS CONCLUSION
BECAUSE IT BELIEVED THAT A COURT'S BUSINESS COULD NOT BE CONDUCTED
UNLESS IT COULD SUPPRESS DISTURBANCES WITHIN THE COURTROOM BY IMMEDIATE
PUNISHMENT.  HOWEVER, THIS COURT RECOGNIZED THAT SUCH DEPARTURE FROM
THE ACCEPTED STANDARDS OF DUE PROCESS WAS CAPABLE OF GRAVE ABUSES, AND
FOR THAT REASON GAVE NO ENCOURAGEMENT TO ITS EXPANSION BEYOND THE
SUPPRESSION AND PUNISHMENT OF THE COURT-DISRUPTING MISCONDUCT WHICH
ALONE JUSTIFIED ITS EXERCISE.  INDEED IN THE TERRY CASE THE COURT CITED
WITH APPROVAL ITS DECISION IN ANDERSON V. DUNN, 6 WHEAT.  204, WHICH
HAD MARKED THE LIMITS OF CONTEMPT AUTHORITY IN GENERAL AS BEING "THE
LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED."  ID. AT 231.  AND
SEE IN RE MICHAEL, 326 U.S. 224, 227. 

THAT THE HOLDING IN THE TERRY CASE IS NOT TO BE CONSIDERED AS AN
UNLIMITED ABANDONMENT OF THE BASIC DUE PROCESS PROCEDURAL SAFEGUARDS,
EVEN IN CONTEMPT CASES, WAS SPELLED OUT WITH EMPHATIC LANGUAGE IN COOKE
V. UNITED STATES, 267 U.S. 517, A CONTEMPT CASE ARISING IN A FEDERAL
DISTRICT COURT.  THERE IT WAS POINTED OUT THAT FOR A COURT TO EXERCISE
THE EXTRAORDINARY BUT NARROWLY LIMITED POWER TO PUNISH FOR CONTEMPT
WITHOUT ADEQUATE NOTICE AND OPPORTUNITY TO BE HEARD, THE COURT
DISTURBING MISCONDUCT MUST NOT ONLY OCCUR IN THE COURT'S IMMEDIATE
PRESENCE, BUT THAT THE JUDGE MUST HAVE PERSONAL KNOWLEDGE OF IT
ACQUIRED BY HIS OWN OBSERVATION OF THE CONTEMPTUOUS CONDUCT.  THIS
COURT SAID THAT KNOWLEDGE ACQUIRED FROM THE TESTIMONY OF OTHERS, OR
EVEN FROM THE CONFESSION OF THE ACCUSED, WOULD NOT JUSTIFY CONVICTION
WITHOUT A TRIAL IN WHICH THERE WAS AN OPPORTUNITY FOR DEFENSE. 
FURTHERMORE, THE COURT EXPLAINED THE TERRY RULE AS REACHING ONLY SUCH
CONDUCT AS CREATED "AN OPEN THREAT TO THE ORDERLY PROCEDURE OF THE
COURT AND SUCH A FLAGRANT DEFIANCE OF THE PERSON AND PRESENCE OF THE
JUDGE BEFORE THE PUBLIC" THAT, IF "NOT INSTANTLY SUPPRESSED AND
PUNISHED, DEMORALIZATION OF THE COURT'S AUTHORITY WILL FOLLOW."  ID. AT
536. 

EXCEPT FOR A NARROWLY LIMITED CATEGORY OF CONTEMPTS, DUE PROCESS OF
LAW AS EXPLAINED IN THE COOKE CASE REQUIRES THAT ONE CHARGED WITH
CONTEMPT OF COURT BE ADVISED OF THE CHARGES AGAINST HIM, HAVE A
REASONABLE OPPORTUNITY TO MEET THEM BY WAY OF DEFENSE OR EXPLANATION,
HAVE THE RIGHT TO BE REPRESENTED BY COUNSEL, AND HAVE A CHANCE TO
TESTIFY AND CALL OTHER WITNESSES IN HIS BEHALF, EITHER BY WAY OF
DEFENSE OR EXPLANATION.  THE NARROW EXCEPTION TO THESE DUE PROCESS
REQUIREMENTS INCLUDES ONLY CHARGES OF MISCONDUCT, IN OPEN COURT, IN THE
PRESENCE OF THE JUDGE, WHICH DISTURBS THE COURT'S BUSINESS, WHERE ALL
OF THE ESSENTIAL ELEMENTS OF THE MISCONDUCT ARE UNDER THE EYE OF THE
COURT, ARE ACTUALLY OBSERVED BY THE COURT, AND WHERE IMMEDIATE
PUNISHMENT IS ESSENTIAL TO PREVENT "DEMORALIZATION OF THE COURT'S
AUTHORITY" BEFORE THE PUBLIC.  IF SOME ESSENTIAL ELEMENTS OF THE
OFFENSE ARE NOT PERSONALLY OBSERVED BY THE JUDGE, SO THAT HE MUST
DEPEND UPON STATEMENTS MADE BY OTHERS FOR HIS KNOWLEDGE ABOUT THESE
ESSENTIAL ELEMENTS, DUE PROCESS REQUIRES, ACCORDING TO THE COOKE CASE,
THAT THE ACCUSED BE ACCORDED NOTICE AND A FAIR HEARING AS ABOVE SET
OUT. 

THE FACTS SHOWN BY THIS RECORD PUT THIS CASE OUTSIDE THE NARROW
CATEGORY OF CASES THAT CAN BE PUNISHED AS CONTEMPT WITHOUT NOTICE,
HEARING AND COUNSEL.  SINCE THE PETITIONER'S ALLEGED MISCONDUCT ALL
OCCURRED IN SECRET, THERE COULD BE NO POSSIBILITY OF A DEMORALIZATION
OF THE COURT'S AUTHORITY BEFORE THE PUBLIC.  FURTHERMORE, THE ANSWER OF
THE JUDGE-GRAND JURY TO THE PETITION FOR HABEAS CORPUS SHOWED THAT HIS
CONCLUSION THAT THE PETITIONER HAD TESTIFIED FALSELY WAS BASED, AT
LEAST IN PART, UPON THE TESTIMONY GIVEN BEFORE HIM BY ONE OR MORE
WITNESSES OTHER THAN PETITIONER.  PETITIONER AND ONE HARTLEY BOTH
TESTIFIED THE SAME DAY; BOTH WERE PIN-BALL MACHINE OPERATORS; BOTH HAD
BOUGHT OR HAD IN THEIR POSSESSION CERTAIN SO-CALLED BONDS PURCHASED
FROM ONE MITCHELL; BOTH WERE SENT TO JAIL FOR CONTEMPT THE SAME DAY. 
IN RE HARTLEY, 317 MICH. 441, 27 N.W.2D 48.  THE JUDGE-GRAND JURY
PRESSED BOTH PETITIONER AND HARTLEY TO STATE WHY THEY BOUGHT BONDS
WHICH WERE PATENTLY WORTHLESS.  THE PETITIONER WAS ALSO REPEATEDLY
ASKED WHAT HE HAD DONE WITH THE WORTHLESS BONDS.  HE ANSWERED EVERY
QUESTION ASKED HIM, ACCORDING TO THE FRAGMENTARY PORTIONS OF HIS
TESTIMONY REPORTED TO THE MICHIGAN SUPREME COURT, MOST OF WHICH IS
INCLUDED IN THAT COURT'S OPINION.  HE STEADFASTLY DENIED THAT HE KNEW
PRECISELY WHAT HE HAD DONE WITH THE WORTHLESS BONDS, BUT MADE SEVERAL
DIFFERENT STATEMENTS AS TO HOW HE MIGHT HAVE DISPOSED OF THEM, SUCH AS
THAT HE MIGHT HAVE THROWN THEM INTO THE WASTEBASKET, OR TRASH CAN, OR
MIGHT HAVE BURNED THEM. 

IN UPHOLDING THE JUDGE-GRAND JURY'S CONCLUSION THAT PETITIONER HAD
TESTIFIED FALSELY AND EVASIVELY, THE MAJORITY OF THE MICHIGAN SUPREME
COURT GAVE AS ONE REASON A STATEMENT IN THE JUDGE-GRAND JURY'S ANSWER
"THAT THE GRAND JURY, AFTER INVESTIGATION, IS SATISFIED THAT THE BONDS
SOLD BY THE SAID CARMAN A. MITCHELL TO THE SAID WILLIAM D. OLIVER ARE
THE SAME AS THOSE SOLD BY THE SAID CARMAN A. MITCHELL TO LEO THOMAS
HARTLEY."  NOTHING IN THE PETITIONER'S TESTIMONY AS REPORTED COULD HAVE
REMOTELY JUSTIFIED THE JUDGE-JURY IN DRAWING SUCH A CONCLUSION.  THE
JUDGE-JURY WAS OBVIOUSLY APPRAISING THE TRUTH OF OLIVER'S TESTIMONY IN
LIGHT OF TESTIMONY GIVEN THE SAME DAY IN PETITIONER'S ABSENCE BY
HARTLEY AND POSSIBLY BY OTHER WITNESSES.  THE TERRY CASE AND OTHERS
LIKE IT PROVIDE NO SUPPORT FOR SUSTAINING PETITIONER'S CONVICTION OF
CONTEMPT OF COURT UPON TESTIMONY GIVEN IN PETITIONER'S ABSENCE.  THIS
CASE WOULD BE LIKE THE TERRY CASE ONLY IF THE JUDGE THERE HAD NOT
PERSONALLY WITNESSED TERRY'S ASSAULT UPON THE MARSHAL BUT HAD
NEVERTHELESS SENT HIM TO JAIL FOR CONTEMPT OF COURT AFTER HEARING THE
TESTIMONY OF WITNESSES AGAINST TERRY IN TERRY'S ABSENCE.  IT MAY BE
CONCEIVABLE, AS IS HERE URGED, THAT A JUDGE CAN UNDER SOME
CIRCUMSTANCES CORRECTLY DETECT FALSITY AND EVASIVENESS FROM SIMPLY
LISTENING TO A WITNESS TESTIFY.  BUT THIS IS PLAINLY NOT A CASE IN
WHICH THE FINDING OF FALSITY RESTED ON AN EXERCISE OF THIS ALLEGED
POWER.  FOR THIS REASON WE NEED NOT PASS ON THE QUESTION ARGUED IN THE
BRIEFS WHETHER A JUDGE CAN, CONSISTENTLY WITH PROCEDURAL DUE PROCESS,
CONVICT A WITNESS OF TESTIFYING FALSELY AND EVASIVELY SOLELY ON THE
JUDGE'S ABILITY TO DETECT IT FROM MERELY OBSERVING A WITNESS AND
HEARING HIM TESTIFY. 

NOR IS THERE ANY REASON SUGGESTED WHY "DEMORALIZATION OF THE COURT'S
AUTHORITY" WOULD HAVE RESULTED FROM GIVING THE PETITIONER A REASONABLE
OPPORTUNITY TO APPEAR AND OFFER A DEFENSE IN OPEN COURT TO A CHARGE OF
PERJURY OR TO THE CHARGE OF CONTEMPT.  THE TRADITIONAL GRAND JURIES
HAVE NEVER PUNISHED CONTEMPTS.  FN32  THE PRACTICE THAT HAS ALWAYS BEEN
FOLLOWED WITH RECALCITRANT GRAND JURY WITNESSES IS TO TAKE THEM INTO
OPEN COURT, AND THAT PRACTICE, CONSISTENT WITH DUE PROCESS, HAS NOT
DEMORALIZED THE AUTHORITY OF COURTS.  REPORTED CASES REVEAL NO
INSTANCES IN WHICH WITNESSES BELIEVED BY GRAND JURIES ON THE BASIS OF
OTHER TESTIMONY TO BE PERJURERS HAVE BEEN CONVICTED FOR CONTEMPT, OR
FOR PERJURY, WITHOUT NOTICE OF THE SPECIFIC CHARGES AGAINST THEM, AND
OPPORTUNITY TO PREPARE A DEFENSE, TO OBTAIN COUNSEL, TO CROSS-EXAMINE
THE WITNESSES AGAINST THEM AND TO OFFER EVIDENCE IN THEIR OWN DEFENSE. 
THE RIGHT TO BE HEARD IN OPEN COURT BEFORE ONE IS CONDEMNED IS TOO
VALUABLE TO BE WHITTLED AWAY UNDER THE GUISE OF "DEMORALIZATION OF THE
COURT'S AUTHORITY." 

IT IS "THE LAW OF THE LAND" THAT NO MAN'S LIFE, LIBERTY OR PROPERTY
BE FORFEITED AS A PUNISHMENT UNTIL THERE HAS BEEN A CHARGE FAIRLY MADE
AND FAIRLY TRIED IN A PUBLIC TRIBUNAL.  SEE CHAMBERS V. FLORIDA, 309
U.S. 227, 236-237.  THE PETITIONER WAS CONVICTED WITHOUT THAT KIND OF
TRIAL. 

THE JUDGMENT OF THE SUPREME COURT OF MICHIGAN IS REVERSED AND THE
CAUSE IS REMANDED TO IT FOR DISPOSITION NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  UNDER CERTAIN CIRCUMSTANCES MICHIGAN LAW PERMITS CIRCUIT JUDGES
TO SIT WITH OTHER CIRCUIT JUDGES IN AN ADVISORY CAPACITY.  MICH. STAT.
ANN. SEC. 27.188(HENDERSON 1938); MICH. COMP. LAWS 1929 SEC. 13666. 
FN2  IN GIVING REASONS IN ITS HARTLEY OPINION FOR REJECTING THIS
PETITIONER'S CONSTITUTIONAL CONTENTIONS, THE STATE SUPREME COURT SAID
IT WOULD HAVE BEEN AN "IDLE GESTURE TO REQUIRE SUCH ADJOURNMENT OF THE
GRAND JURY AND ITS RECONVENING AS A CIRCUIT COURT.  THE CIRCUIT JUDGE,
WHILE ACTING AS A ONE-MAN GRAND JURY MAY, IN APPROPRIATE CASES,
SUMMARILY ADJUDGE A WITNESS TESTIFYING BEFORE HIM GUILTY OF CONTEMPT
AND IMPOSE SENTENCE FORTHWITH. 

"PLAINTIFF'S CONTEMPT, IF ANY, WAS COMMITTED IN THE FACE OF THE COURT
AND REQUIRED NO EXTRANEOUS PROOFS AS TO ITS OCCURRENCE.  IT WAS DIRECT
AND THERE WAS, THEREFORE, NO NECESSITY FOR FILING OF CHARGES, NOTICE TO
ACCUSED AND HEARING AS PROVIDED IN 3 COMP. LAWS OF 1929, SEC.
13912(STAT.  ANN.  SEC. 27.513).  IT WAS PROPERLY DEALT WITH
SUMMARILY.  3 COMP. LAWS 1929, SECS. 13910, 13911(STAT.  ANN.  SECS.
27.511, 27.512)."  317 MICH. AT 444-445, 27 N.W.2D AT 50. 

FN3  BY A FOUR TO FOUR VOTE THE COURT ALSO HELD THAT THERE WAS
"EVIDENCE TO SUPPORT THE FINDING" OF THE JUDGE-GRAND JURY THAT
PETITIONER HAD TESTIFIED FALSELY.  PETITIONER HAS ARGUED HERE THAT
THERE WAS NOT A SHRED OF EVIDENCE WHICH UNDER ANY CIRCUMSTANCES COULD
HAVE CONCEIVABLY SUPPORTED THIS FINDING AND THUS THAT HE WAS DEPRIVED
OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW.  IN THE VIEW THAT WE TAKE OF
THIS CASE WE FIND IT UNNECESSARY TO CONSIDER THIS CONSTITUTIONAL
CONTENTION. 

FN4  THE LAWS AUTHORIZING THE SYSTEM ARE FOUND IN MICHIGAN COMP. LAWS
1929, SEC. 17217, ET SEQ.; MICH. STAT. ANN. SEC. 28.943, ET SEQ.
(HENDERSON 1938).  A SUMMARY OF THE TEN STATES' STATUTES WHICH HAVE
SOME SIMILARITIES TO MICHIGAN'S APPEARS IN WINTERS, THE MICHIGAN ONE
MAN GRAND JURY, 28 J. AM. JUD.  SOC.  137.  SEE, E.G., CONN. GEN. STAT.
SEC. 889F (SUPP. 1941); MCCARTHY V. CLANCY, 110 CONN. 482, 148 A. 551;
OKLA. STAT. ANN. TIT. 37, SEC. 83; TIT. 21 SEC. 951(1937); EX PARTE
BALLEW, 20 OKLA. CR. 105, 201 P. 525. 

FN5  PROCEEDINGS OF THE TWENTY-SIXTH ANNUAL MEETING OF THE MICHIGAN
STATE BAR ASSOCIATION 101-105(1916). 

FN6  IN RE WARD, 295 MICH. 742, 747, 295 N.W. 483, 485.  (FIRST 60
DAY CONVICTION MAY 31, 1940, FOLLOWED BY SECOND 60-DAY CONVICTION JULY
29, 1940.  A $100 FINE WAS ALSO IMPOSED IN EACH INSTANCE.) 

FN7  IN RE INVESTIGATION OF RECOUNT, 270 MICH. 328, 331, 258 N.W.
776, 777; IN RE SLATTERY, 310 MICH. 458, 479, 17 N.W.2D 251, 259. 

FN8  PEOPLE V. WOLFSON, 264 MICH. 409, 413, 250 N.W. 260, 262; IN RE
WATSON, 293 MICH. 263, 269, 291 N.W. 652, 655; PEOPLE V. BUTLER, 221
MICH. 626, 631-632, 192 N.W. 685, 687. 

FN9  WINTERS, THE MICHIGAN ONE-MAN GRAND JURY, 28 J. AM. JUD.  SOC. 
137, 143; UNPRECEDENTED SUCCESS IN CRIMINAL COURTS, 26 J. AM. JUD. 
SOC.  42-43. 

FN10  SEE CASES COLLECTED IN 8 A.L.R. 1579-1580; ORFIELD, CRIMINAL
PROCEDURE FROM ARREST TO APPEAL 161(1947). 

FN11  IN RE SLATTERY, 310 MICH. 458, 466-468, 17 N.W.2D 251, 254-255;
KLOKA V. STATE TREASURER, 318 MICH. 87, 90, 27 N.W.2D 507, 508; CF.
TODD V. UNITED STATES, 158 U.S. 278, 284; INTERSTATE COMMERCE
COMMISSION V. BRIMSON, 154 U.S. 447, 481, 489; UNITED STATES V.
FERREIRA, 13 HOW.  40, 44-48. 

FN12  CASES WITHIN THE JURISDICTION OF COURTS MARTIAL MAY BE REGARDED
AS AN EXCEPTION.  EX PARTE QUIRIN, 317 U.S. 1, 43; KING V. GOVERNOR OF
LEWES PRISON, 61 SOL.  J. 294, 30 HARV. L. REV. 771.  WHATEVER MAY BE
THE CLASSIFICATION OF JUVENILE COURT PROCEEDINGS, THEY ARE OFTEN
CONDUCTED WITHOUT ADMITTING ALL THE PUBLIC.  BUT IT HAS NEVER BEEN THE
PRACTICE WHOLLY TO EXCLUDE PARENTS, RELATIVES, AND FRIENDS, OR TO
REFUSE JUVENILES THE BENEFIT OF COUNSEL. 

FN13  UNDER MICHIGAN LAW CONTEMPT PROCEEDINGS AGAINST A WITNESS
BEFORE A ONE-MAN GRAND JURY ARE CRIMINAL IN NATURE.  IN RE WILKOWSKI,
270 MICH. 687, 259 N.W. 658.  BUT THIS CHARACTERIZATION IS NOT MATERIAL
IN RESOLVING THIS DUE PROCESS QUESTION.  CF. GOMPERS V. UNITED STATES,
233 U.S. 604, 610-611. 

FN14  RADIN, THE RIGHT TO A PUBLIC TRIAL, 6 TEMP.  L.Q. 381-384. 
EARLY COMMENTATORS MENTION THAT PUBLIC TRIALS WERE COMMONLY HELD
WITHOUT ATTEMPTING TO TRACE THEIR ORIGIN.  SIR THOMAS SMITH IN 1565 IN
HIS DE REPUBLICA ANGLORUM BK. 2, PP. 79, 101(ALSTON ED. 1906); SIR
MATTHEW HALE ABOUT 1670 IN HIS HISTORY OF THE COMMON LAW OF ENGLAND 343
345(RUNNINGTON ED. 1820).  IN 1649, A FEW YEARS AFTER THE LONG
PARLIAMENT ABOLISHED THE COURT OF STAR CHAMBER, AN ACCUSED CHARGED WITH
HIGH TREASON BEFORE A SPECIAL COMMISSION OF OYER AND TERMINER CLAIMED
THE RIGHT TO PUBLIC TRIAL AND APPARENTLY WAS GIVEN SUCH A TRIAL.  TRIAL
OF JOHN LILBURNE, 4 HOW.  ST. TR. 1270, 1274.  "BY IMMEMORIAL USAGE,
WHEREVER THE COMMON LAW PREVAILS, ALL TRIALS ARE IN OPEN COURT, TO
WHICH SPECTATORS ARE ADMITTED."  2 BISHOP, NEW CRIMINAL PROCEDURE SEC.
957(2D ED. 1913). 

FN15  PENN.  CONST., DECLARATION OF RIGHTS IX (1776); N.C. CONST.,
DECLARATION OF RIGHTS IX (1776)(CRIMINAL CONVICTIONS ONLY BY JURY
VERDICT IN "OPEN COURT"). 

FN16  SEE, E.G., VT. CONST., CH. I, DECLARATION OF RIGHTS, XI (1787);
DEL. CONST., ART. I, SEC. 7(1792); KY. CONST., ART. XII, CL. 10(1792);
TENN. CONST., ART. XI, SEC. 9(1796); MISS.  CONST., ART. I, SEC.
10(1817); MICH. CONST., ART. I, SEC. 10(1835); TEX. CONST., ART. I,
SEC. 8(1845). 

FN17  FOUR STATES, MASSACHUSETTS, NEW HAMPSHIRE, VIRGINIA AND
WYOMING, APPEAR TO HAVE NEITHER STATUTORY NOR CONSTITUTIONAL PROVISIONS
SPECIFICALLY REQUIRING THAT CRIMINAL TRIALS BE HELD IN PUBLIC, ALTHOUGH
ALL HAVE CONSTITUTIONS GUARANTEEING AN ACCUSED THE RIGHT TO A JURY
TRIAL.  MASS. CONST., PT. I, ART. XII; N.H. CONST., PT. FIRST, ARTS.
15TH, 16TH; VA. CONST., ART. I, SEC. 8; WYO. CONST., ART. 1, SEC. 10. 
MASSACHUSETTS BY IMPLICATION HAS RECOGNIZED THAT AN ACCUSED HAS A RIGHT
TO A PUBLIC TRIAL AS WELL.  A STATUTE OF THAT STATE PERMITS THE
EXCLUSION OF SPECTATORS IN ONLY A LIMITED CATEGORY OF CASES.  MASS.
GEN. LAWS C. 278, SEC. 16A (1932).  IN NEW HAMPSHIRE AND WYOMING NO
STATUTE OR DECISION HAS BEEN FOUND IN WHICH THE RIGHT OF AN ACCUSED TO
A PUBLIC TRIAL IS MENTIONED.  IN VIRGINIA, ALTHOUGH NO DECISION HAS
BEEN DISCOVERED, A STATUTE PROVIDES:  "IN THE TRIAL OF ALL CRIMINAL
CASES, WHETHER THE SAME BE FELONY OR MISDEMEANOR CASES, THE COURT MAY,
IN ITS DISCRETION, EXCLUDE FROM THE TRIAL ANY OR ALL PERSONS WHOSE
PRESENCE IS NOT DEEMED NECESSARY."  VA. CODE ANN. SEC. 4906(1942). 

FN18  FORTY-ONE STATES:  ALA. CONST., ART. I, SEC. 6; ARIZ. CONST.,
ART. II, SEC. 24; ARK. CONST., ART. II, SEC. 10; CAL. CONST., ART. I,
SEC. 13; COLO. CONST., ART. II, SEC. 16; CONN. CONST., ART. I, SEC. 9;
DEL. CONST., ART. I, SEC. 7; FLA. CONST., DECLARATION OF RIGHTS, SEC.
11; GA. CONST., ART. I, SEC. I, PAR. V; IDAHO CONST., ART. I, SEC. 13;
ILL. CONST., ART. II, SEC. 9; IND. CONST., ART. 1, SEC. 13; IOWA
CONST., ART. I, SEC. 10; KAN. CONST., BILL OF RIGHTS, SEC. 10; KY.
CONST., SEC. 11; LA. CONST., ART. I, SEC. 9; ME. CONST., ART. I, SEC.
6; MICH. CONST., ART. II, SEC. 19; MINN. CONST., ART. 1, SEC. 6; MISS. 
CONST., ART. 3, SEC. 26; MO. CONST., ART. I, SEC. 18; MONT. CONST.,
ART. III, SEC. 16; NEB. CONST., ART. I, SEC. 11; N.J. CONST., ART. I,
SEC. 8; N.M. CONST., ART. II, SEC. 14; N.C. CONST., ART. I, SEC. 13(NO
CONVICTIONS FOR CRIME EXCEPT BY JURY VERDICT IN "OPEN COURT"); N.D.
CONST., ART. I, SEC. 13; OHIO CONST., ART. I, SEC. 10; OKLA. CONST.,
ART. II, SEC. 20; ORE.  CONST., ART. I, SEC. 11; PA. CONST., ART. I,
SEC. 9; R.I. CONST., ART. I, SEC. 10; S.C. CONST., ART. I, SEC. 18;
S.D. CONST., ART. 6, SEC. 7; TENN. CONST., ART. I, SEC. 9; TEX. CONST.,
ART. I, SEC. 10; UTAH CONST., ART. I, SEC. 12; VT. CONST., CH. I, ART.
10TH; WASH. CONST., ART. I, SEC. 22; W. VA. CONST., ART. III, SEC. 14;
WIS. CONST., ART. I, SEC. 7. 

FN19  TWO STATES:  NEV. COMP. LAWS ANN. SEC. 10654(1929); N.Y. CIVIL
RIGHTS LAW SEC. 12. 

FN20  THE MARYLAND COURT OF APPEALS HAS APPARENTLY INTERPRETED THE
STATE CONSTITUTION AS PROHIBITING SECRET TRIALS.  DUTTON V. STATE, 123
MD. 373, 386-388, 91 A. 417, 422-423. 

FN21  RADIN, THE RIGHT TO A PUBLIC TRIAL, 6 TEMP.  L.Q. 381, 389. 
THE CRIMINAL PROCEDURE OF THE CIVIL LAW COUNTRIES LONG RESEMBLED THAT
OF THE INQUISITION IN THAT THE PRELIMINARY EXAMINATION OF THE ACCUSED,
THE QUESTIONING OF WITNESSES, AND THE TRIAL OF THE ACCUSED WERE
CONDUCTED IN SECRET.  ESMEIN, A HISTORY OF CONTINENTAL CRIMINAL
PROCEDURE 183-382(1913); PLOSCOWE, DEVELOPMENT OF INQUISITORIAL AND
ACCUSATORIAL ELEMENTS IN FRENCH PROCEDURE, 23 J. CRIM. L. & CRIMINOLOGY
372-386.  THE ECCLESIASTICAL COURTS OF GREAT BRITAIN, WHICH
INTERMITTENTLY EXERCISED A LIMITED CIVIL AND CRIMINAL JURISDICTION,
ADOPTED A PROCEDURE DESCRIBED AS "IN NAME AS WELL AS IN FACT AN
INQUISITION, DIFFERING FROM THE SPANISH INQUISITION IN THE
CIRCUMSTANCES THAT IT DID NOT AT ANY TIME AS FAR AS WE ARE AWARE EMPLOY
TORTURE, AND THAT THE BULK OF THE BUSINESS OF THE COURTS WAS OF A
COMPARATIVELY UNIMPORTANT KIND  ...  "  2 STEPHEN, HISTORY OF THE
CRIMINAL LAW OF ENGLAND, 402(1883).  THE SECRECY OF THE ECCLESIASTICAL
COURTS AND THE CIVIL LAW COURTS WAS OFTEN POINTED OUT BY COMMENTATORS
WHO PRAISED THE PUBLICITY OF THE COMMON LAW COURTS.  SEE E.G., 3
BLACKSTONE, COMMENTARIES* 373; 1 BENTHAM, RATIONALE OF JUDICIAL
EVIDENCE, 594-595, 603(1827).  THE ENGLISH COMMON LAW COURTS WHICH
SUCCEEDED TO THE JURISDICTION OF THE ECCLESIASTICAL COURTS HAVE
RENOUNCED ALL CLAIM TO HOLD SECRET SESSIONS IN CASES FORMERLY WITHIN
THE ECCLESIASTICAL JURISDICTION, EVEN IN CIVIL SUITS.  SEE, E.G., SCOTT
V. SCOTT, (1913) A.C. 417. 

FN22  DAVIS V. UNITED STATES, 247 F. 394, 395; KEDDINGTON V. STATE,
19 ARIZ. 457, 459, 172 P. 273; WILLIAMSON V. LACY, 86 ME. 80, 82-83, 29
A. 943, 944; DUTTON V. STATE, 123 MD. 373, 387, 91 A. 417, 422; JENKS,
THE BOOK OF ENGLISH LAW 91(3D ED. 1932).  SOME AUTHORITIES HAVE SAID
THAT TRIALS IN THE STAR CHAMBER WERE PUBLIC, BUT THAT WITNESSES AGAINST
THE ACCUSED WERE EXAMINED PRIVATELY WITH NO OPPORTUNITY FOR HIM TO
DISCREDIT THEM.  APPARENTLY ALL AUTHORITIES AGREE THAT THE ACCUSED
HIMSELF WAS GRILLED IN SECRET, OFTEN TORTURED, IN AN EFFORT TO OBTAIN A
CONFESSION AND THAT THE MOST OBJECTIONABLE OF THE STAR CHAMBER'S
PRACTICES WAS ITS ASSERTED PREROGATIVE TO DISREGARD THE COMMON LAW
RULES OF CRIMINAL PROCEDURE WHEN THE OCCASION DEMANDED.  5 HOLDSWORTH,
A HISTORY OF ENGLISH LAW, 163, 165, 180-197(2D ED. 1937); RADIN, THE
RIGHT TO A PUBLIC TRIAL, 6 TEMP.  L.Q. 381, 386-388; WASHBURN, THE
COURT OF STAR CHAMBER, 12 AM. L. REV. 21, 25-31. 

FN23  RADIN, THE RIGHT TO A PUBLIC TRIAL, 6 TEMP.  L.Q. 381, 388. 
THE LETTRE DE CACHET WAS AN ORDER OF THE KING THAT ONE OF HIS SUBJECTS
BE FORTHWITH IMPRISONED OR EXILED WITHOUT A TRIAL OR AN OPPORTUNITY TO
DEFEND HIMSELF.  IN THE EIGHTEENTH CENTURY THEY WERE OFTEN ISSUED IN
BLANK TO LOCAL POLICE.  LOUIS XV IS SUPPOSED TO HAVE ISSUED MORE THAN
150,000 LETTRES DE CACHET DURING HIS REIGN.  THIS DEVICE WAS THE
PRINCIPAL MEANS EMPLOYED TO PROSECUTE CRIMES OF OPINION, ALTHOUGH IT
WAS ALSO USED BY THE ROYALTY AS A CONVENIENT METHOD OF PREVENTING THE
PUBLIC AIRING OF INTRA-FAMILY SCANDALS.  VOLTAIRE, MIRABEAU AND
MONTESQUIEU, AMONG OTHERS, DENOUNCED THE USE OF THE LETTRE DE CACHET,
AND IT WAS ABOLISHED AFTER THE FRENCH REVOLUTION, THOUGH LATER
TEMPORARILY REVIVED BY NAPOLEON.  13 ENCYC.  BRIT.  971; 3 ENCYC. 
SOC.  SCI. 137. 

FN24  OTHER BENEFITS ATTRIBUTED TO PUBLICITY HAVE BEEN:  (1) PUBLIC
TRIALS COME TO THE ATTENTION OF KEY WITNESSES UNKNOWN TO THE PARTIES. 
THESE WITNESSES MAY THEN VOLUNTARILY COME FORWARD AND GIVE IMPORTANT
TESTIMONY.  6 WIGMORE, EVIDENCE SEC. 1834(3D ED. 1940); TANKSLEY V.
UNITED STATES, 145 F.2D 58, 59. 

(2)  THE SPECTATORS LEARN ABOUT THEIR GOVERNMENT AND ACQUIRE
CONFIDENCE IN THEIR JUDICIAL REMEDIES.  6 WIGMORE, EVIDENCE SEC.
1834(3D ED. 1940); 1 BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 525(1827);
STATE V. KEELER, 52 MONT. 205, 156 P. 1080; 20 HARV. L. REV. 489. 

FN25  JENKS, THE BOOK OF ENGLISH LAW 91(1932); AULD, COMPARATIVE
JURISPRUDENCE OF CRIMINAL PROCESS, 1 U. OF TORONTO L.J. 82, 99; RADIN,
THE RIGHT TO A PUBLIC TRIAL, 6 TEMP.  L.Q. 381; CRIMINAL PROCEDURE IN
SCOTLAND AND ENGLAND, 108 EDINBURGH REV. 174, 181-182; HOLMES, J. IN
COWLEY V. PULSIFER, 137 MASS. 392, 394; STATE V. OSBORNE, 54 ORE.  289,
295-297, 103 P. 62, 64-66.  PEOPLE V. MURRAY, 89 MICH. 276, 286, 50
N.W. 995, 998:  "IT IS FOR THE PROTECTION OF ALL PERSONS ACCUSED OF
CRIME - THE INNOCENTLY ACCUSED, THAT THEY MAY NOT BECOME THE VICTIM OF
AN UNJUST PROSECUTION, AS WELL AS THE GUILTY, THAT THEY MAY BE AWARDED
A FAIR TRIAL - THAT ONE RULE (AS TO PUBLIC TRIALS) MUST BE OBSERVED AND
APPLIED TO ALL."  FREQUENTLY QUOTED IS THE STATEMENT IN 1 COOLEY,
CONSTITUTIONAL LIMITATIONS (8TH ED. 1927) AT 647:  "THE REQUIREMENT OF
A PUBLIC TRIAL IS FOR THE BENEFIT OF THE ACCUSED; THAT THE PUBLIC MAY
SEE HE IS FAIRLY DEALT WITH AND NOT UNJUSTLY CONDEMNED, AND THAT THE
PRESENCE OF INTERESTED SPECTATORS MAY KEEP HIS TRIERS KEENLY ALIVE TO A
SENSE OF THEIR RESPONSIBILITY AND TO THE IMPORTANCE OF THEIR FUNCTIONS
...  " 

FN26  1 BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 524(1827). 

FN27  COMPARE PEOPLE V. MURRAY, 89 MICH. 276, 50 N.W. 995; AND PEOPLE
V. YEAGER, 113 MICH. 228, 71 N.W. 491, WITH REAGAN V. UNITED STATES,
202 F. 488.  FOR COLLECTION AND ANALYSIS OF THE CASES, SEE 6 WIGMORE,
EVIDENCE SEC. 1834(3D ED. 1940); ORFIELD, CRIMINAL PROCEDURE FROM
ARREST TO APPEAL 385-387(1947); RADIN, THE RIGHT TO A PUBLIC TRIAL, 6
TEMP.  L.Q. 381, 389-391; NOTE, 35 MICH. L. REV. 474; 8 U. OF DET. 
L.J. 129; 156 A.L.R. 265. 

FN28  "FOR THE PURPOSES CONTEMPLATED BY THE PROVISION OF THE
CONSTITUTION, THE PRESENCE OF THE OFFICERS OF THE COURT, MEN WHOM N, IT
IS SAFE TO SAY, WERE UNDER THE INFLUENCE OF THE COURT, MADE THE TRIAL
NO MORE PUBLIC THAN IF THEY TOO HAD BEEN EXCLUDED."  PEOPLE V. HARTMAN,
103 CAL. 242, 244, 37 P. 153, 154.    FN29  SEE, E.G., STATE V.
BECKSTEAD, 96 UTAH 528, 88 P.2D 461(ERROR TO EXCLUDE FRIENDS AND
RELATIVES OF ACCUSED); BENEDICT V. PEOPLE, 23 COLO. 126, 46 P.
637(EXCLUSION OF ALL EXCEPT WITNESSES, MEMBERS OF BAR AND LAW STUDENTS
UPHELD); PEOPLE V. HALL, 51 APP. DIV. 57, 64 N.Y.S. 433(EXCLUSION OF
GENERAL PUBLIC UPHELD WHERE ACCUSED PERMITTED TO DESIGNATE FRIENDS WHO
REMAINED).  "NO COURT HAS GONE SO FAR AS AFFIRMATIVELY TO EXCLUDE THE
PRESS."  NOTE, 35 MICH. L. REV. 474, 476.  EVEN THOSE WHO DEPLORE THE
SENSATIONALISM OF CRIMINAL TRIALS AND ADVOCATE THE EXCLUSION OF THE
GENERAL PUBLIC FROM THE COURTROOM WOULD PRESERVE THE RIGHTS OF THE
ACCUSED BY REQUIRING THE ADMISSION OF THE PRESS, FRIENDS OF THE
ACCUSED, AND SELECTED MEMBERS OF THE COMMUNITY.  RADIN, THE RIGHT TO A
PUBLIC TRIAL, 6 TEMP.  L.Q. 381, 394-395; 20 J. AM. JUD.  SOC.  83. 

FN30  CASES ARE COLLECTED IN 27 ANN. CAS. 35. 

FN31  THE FOLLOWING DECISIONS OF THIS COURT INVOLVING VARIOUS KINDS
OF PROCEEDINGS ARE AMONG THE MULTITUDE THAT SUPPORT THE ABOVE
STATEMENT:  SNYDER V. MASSACHUSETTS, 291 U.S. 97, 116; POWELL V.
ALABAMA, 287 U.S. 45, 68-70; HOVEY V. ELLIOTT, 167 U.S. 409, 418;
HOLDEN V. HARDY, 169 U.S. 366, 390-391; MORGAN V. UNITED STATES, 304
U.S. 1, 14-15, AND CASES THERE CITED. 

FN32  SEE NOTE 10 SUPRA. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I JOIN IN THE COURT'S OPINION AND DECISION.  BUT THERE IS MORE WHICH
NEEDS TO BE SAID. 

MICHIGAN'S ONE-MAN GRAND JURY, AS EXEMPLIFIED BY THIS RECORD,
COMBINES IN A SINGLE OFFICIAL THE HISTORICALLY SEPARATE POWERS OF GRAND
JURY, COMMITTING MAGISTRATE, PROSECUTOR, TRIAL JUDGE AND PETIT JURY. 
THIS AGGREGATED AUTHORITY DENIES TO THE ACCUSED NOT ONLY THE RIGHT TO A
PUBLIC TRIAL, BUT ALSO THOSE OTHER BASIC PROTECTIONS SECURED BY THE
SIXTH AMENDMENT, NAMELY, THE RIGHTS "TO BE INFORMED OF THE NATURE AND
CAUSE OF THE ACCUSATION; FN1  TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; FN2  TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN
HIS FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE."  IT
TAKES AWAY THE SECURITY AGAINST BEING TWICE PUT IN JEOPARDY FOR THE
SAME OFFENSE  FN3  AND DENIES THE EQUAL PROTECTION OF THE LAWS BY
LEAVING TO THE COMMITTING FUNCTIONARY'S SOLE DISCRETION THE SCOPE AND
CONTENTS OF THE RECORD ON APPEAL.  FN4 U.S. CONST. AMEND. V AND XIV. 

THIS AGGREGATION OF POWERS AND INHERENTLY CONCOMITANT DENIAL OF
HISTORIC FREEDOMS WERE UNKNOWN TO THE COMMON LAW AT THE TIME OUR
INSTITUTIONS CRYSTALLIZED IN THE CONSTITUTION.  THEY ARE ALTOGETHER AT
VARIANCE WITH OUR TRADITION AND SYSTEM OF GOVERNMENT.  THEY CANNOT
STAND THE TEST OF CONSTITUTIONALITY FOR PURPOSES OF DEPRIVING ANY
PERSON OF LIFE, LIBERTY OR PROPERTY.  THERE IS NO SEMBLANCE OF DUE
PROCESS OF LAW IN THE SCHEME WHEN IT IS USED FOR THOSE ENDS.  FN5 

THE CASE DEMONSTRATES HOW FAR THIS COURT DEPARTED FROM OUR
CONSTITUTIONAL PLAN WHEN, AFTER THE FOURTEENTH AMENDMENT'S ADOPTION, IT
PERMITTED SELECTIVE DEPARTURE BY THE STATES FROM THE SCHEME OF ORDERED
PERSONAL LIBERTY ESTABLISHED BY THE BILL OF RIGHTS.  FN6  IN THE GUISE
OF PERMITTING THE STATES TO EXPERIMENT WITH IMPROVING THE
ADMINISTRATION OF JUSTICE, THE COURT LEFT THEM FREE TO SUBSTITUTE, "IN
SPITE OF THE ABSOLUTISM OF CONTINENTAL GOVERNMENTS," THEIR "IDEAS AND
PROCESSES OF CIVIL JUSTICE" IN PLACE OF THE TIME-TRIED "PRINCIPLES AND
INSTITUTIONS OF THE COMMON LAW"  FN7 PERPETUATED FOR US IN THE BILL OF
RIGHTS.  ONLY BY AN EXERCISE OF THIS FREEDOM HAS MICHIGAN BEEN ENABLED
TO ADOPT AND APPLY HER SCHEME AS WAS DONE IN THIS CASE.  IT IS THE
IMMEDIATE OFFSPRING OF HURTADO V. CALIFORNIA, 110 U.S. 516, AND LATER
LIKE CASES.  FN8 

SO LONG AS THEY STAND, SO LONG AS THE BILL OF RIGHTS IS REGARDED HERE
AS A STRAIT JACKET OF EIGHTEENTH CENTURY PROCEDURES RATHER THAN A BASIC
CHARTER OF PERSONAL LIBERTY, LIKE EXPERIMENTATIONS MAY BE EXPECTED FROM
THE STATES.  AND THE ONLY CHECK AGAINST THEIR EFFECTIVENESS WILL BE THE
AGREEMENT OF A MAJORITY OF THIS COURT THAT THE EXPERIMENT VIOLATES
FUNDAMENTAL NOTIONS OF JUSTICE IN CIVILIZED SOCIETY. 

I DO NOT CONCEIVE THAT THE BILL OF RIGHTS, APART FROM THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT, INCORPORATES ALL SUCH IDEAS.  BUT AS FAR
AS ITS PROVISIONS GO, I KNOW OF NO BETTER SUBSTITUTES.  A FEW MAY BE
INCONVENIENT.  BUT RESTRICTIONS UPON AUTHORITY FOR SECURING PERSONAL
LIBERTY, AS WELL AS FAIRNESS IN TRIAL TO DEPRIVE ONE OF IT, ARE ALWAYS
INCONVENIENT - TO THE AUTHORITY SO RESTRICTED.  AND IN TIMES LIKE THESE
I DO NOT THINK SUBSTITUTIONS IMPORTED FROM OTHER SYSTEMS, INCLUDING
CONTINENTAL ONES, OFFER PROMISE ON THE WHOLE OF MORE IMPROVEMENT THAN
HARM, EITHER FOR THE CAUSE OF PERFECTING THE ADMINISTRATION OF JUSTICE
OR FOR THAT OF SECURING AND PERPETUATING INDIVIDUAL FREEDOM, WHICH IS
THE MAIN END OF OUR SOCIETY AS IT IS OF OUR CONSTITUTION. 

ONE CANNOT ATTRIBUTE THE COLLAPSE OF LIBERTY IN EUROPE AND ELSEWHERE
DURING RECENT YEARS SOLELY TO THE "IDEAS AND PROCESSES OF CIVIL
JUSTICE" PREVAILING IN THE NATIONS WHICH HAVE SUFFERED THAT LOSS. 
NEITHER CAN ONE DENY THE SIGNIFICANCE OF THE CONTRAST BETWEEN THEIR
SUCCESS IN MAINTAINING SYSTEMS OF ORDERED LIBERTY AND THAT OF OTHER
NATIONS WHICH IN THE MAIN HAVE ADHERED MORE CLOSELY TO THE SCHEME OF
PERSONAL FREEDOMS THE BILL OF RIGHTS SECURES.  THIS EXPERIENCE
DEMONSTRATES, I THINK, THAT IT IS BOTH WISER AND SAFER TO PUT UP WITH
WHATEVER INCONVENIENCES THAT CHARTER CREATES THAN TO RUN THE RISK OF
LOSING ITS HARD-WON GUARANTIES BY DUBIOUS, IF ALSO MORE CONVENIENT,
SUBSTITUTIONS IMPORTED FROM ALIEN TRADITIONS.  FN9 

THE STATES HAVE SURVIVED WITH THE NATION THROUGH GREAT VICISSITUDES,
FOR THE GREATER PART OF OUR HISTORY, WITHOUT WIDE DEPARTURES OR
NUMEROUS ONES FROM THE PLAN OF THE BILL OF RIGHTS.  THEY ACCEPTED THAT
PLAN FOR THE NATION WHEN THEY RATIFIED THOSE AMENDMENTS.  THEY ACCEPTED
IT FOR THEMSELVES, IN MY OPINION, WHEN THEY RATIFIED THE FOURTEENTH
AMENDMENT.  ADAMSON V. CALIFORNIA, 332 U.S. 46, DISSENTING OPINIONS, AT
68, 123.  IT WAS GOOD ENOUGH FOR OUR FATHERS.  I THINK IT SHOULD BE
GOOD ENOUGH FOR THIS COURT AND FOR THE STATES. 

ROOM ENOUGH THERE IS BEYOND THE SPECIFIC LIMITATIONS OF THE BILL OF
RIGHTS FOR THE STATES TO EXPERIMENT TOWARD IMPROVING THE ADMINISTRATION
OF JUSTICE.  WITHIN THOSE LIMITATIONS THERE SHOULD BE NO LABORATORY
EXCURSIONS, UNLESS OR UNTIL THE PEOPLE HAVE AUTHORIZED THEM BY THE
CONSTITUTIONALLY PROVIDED METHOD.  THIS IS NO TIME TO EXPERIMENT WITH
ESTABLISHED LIBERTIES.  THAT PROCESS CARRIES THE DANGERS OF DILUTION
AND DENIAL WITH THE CHANCES OF ENFORCING AND STRENGTHENING. 

IT REMAINS ONLY TO SAY THAT, IN THE FACE OF SO BROAD A DEPARTURE FROM
SO MANY SPECIFIC CONSTITUTIONAL GUARANTIES OR, IF THE OTHER VIEW IS TO
CONTROL, FROM THEIR AGGREGATE SUMMARIZED IN THE CONCEPT OF DUE PROCESS
AS REPRESENTING FUNDAMENTAL IDEAS OF FAIR PLAY AND JUSTICE IN CIVILIZED
SOCIETY, SUCH AS THE RECORD IN THIS CASE PRESENTS, THIS COURT'S EYES
NEED NOT REMAIN CLOSED NOR ITS HAND IDLE UNTIL THE CASE IS RETURNED TO
THE STATE SUPREME COURT FOR REAFFIRMATION OF ITS POSITION OR
CONFIRMATION OF OUR VIEWS EXPRESSED IN THE COURT'S OPINION.  NEITHER
RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, NOR MUSSER V. UTAH, 333
U.S. 95, PRESENTED A SITUATION LIKE THE ONE TENDERED HERE, WHETHER IN
RELATION TO THE DISENTANGLEMENT OF CONSTITUTIONAL ISSUES FROM QUESTIONS
OF STATE LAW OR, CONSEQUENTLY, IN RESPECT TO THE BREADTH AND CLARITY OF
THE STATE'S DEPARTURE FROM FEDERAL CONSTITUTIONAL COMMANDS.  NEITHER
CASE THEREFORE REQUIRES OR JUSTIFIES THE DISPOSITION OF THIS CAUSE
ACCORDING TO THE PROCEDURE THERE FOLLOWED.  THIS CASE IS NEITHER UNRIPE
FOR DECISION NOR WANTING OF SUFFICIENT BASIS IN THE RECORD FOR EXERCISE
OF THAT FUNCTION. 

FN1  THE REQUIREMENT, OF COURSE, CONTEMPLATES THAT THE ACCUSED BE SO
INFORMED SUFFICIENTLY IN ADVANCE OF TRIAL OR SENTENCE TO ENABLE HIM TO
DETERMINE THE NATURE OF THE PLEA TO BE ENTERED AND TO PREPARE HIS
DEFENSE IF ONE IS TO BE MADE.  CF. WHITE V. RAGEN, 324 U.S. 760, 764;
POWELL V. ALABAMA, 287 U.S. 45. 

FN2  THE ONLY "WITNESS" IN THIS CASE WAS THE GRAND JURY-JUDGE WHO, SO
FAR AS THE RECORD DISCLOSES, DID NOT SUBMIT TO CROSS-EXAMINATION. 

FN3  AS THE COURT'S OPINION NOTES, THE STATE SUPREME COURT HAS HELD
THAT THE WITNESS MAY BE REEXAMINED AND RECOMMITTED FOR A FURTHER 60-DAY
PERIOD AFTER SERVING THE FIRST SENTENCE OF THAT LENGTH, UNLESS HE
REAPPEARS AND ANSWERS THE SAME QUESTIONS TO THE SATISFACTION OF THE ONE
MAN GRAND JURY.  IN RE WARD, 295 MICH. 742, 747. 

FN4  CF. COCHRAN V. KANSAS, 316 U.S. 255.  SO FAR AS APPEARS, ONLY
PERSONS COMMITTED OR FINED BY A ONE-MAN GRAND JURY ARE SUBJECTED IN
MICHIGAN TO THIS ATTENUATED APPELLATE PROCEDURE.  OTHERS CONVICTED OF
CRIME, INCLUDING CRIMINAL CONTEMPT, APPARENTLY ARE AFFORDED RIGHTS TO
COMPLETE AND NONDISCRETIONARY RECORDS ON APPEAL. 

FN5  THE IMMEDIATE SHIFT OF THE PROCEEDING FROM INQUISITORIAL TO
PUNITIVE FUNCTION CONVERTS IT FROM A GRAND JURY INVESTIGATION TO A
PROCEEDING IN CRIMINAL CONTEMPT. 

FN6  CF. ADAMSON V. CALIFORNIA, 332 U.S. 46, DISSENTING OPINION OF
MR. JUSTICE BLACK AT 68. 

FN7  SEE HURTADO V. CALIFORNIA, 110 U.S. 516, 531. 

FN8 E.G., TWINING V. NEW JERSEY, 211 U.S. 78; ADAMSON V. CALIFORNIA,
332 U.S. 46. 

FN9  I DO NOT THINK IT CAN BE DEMONSTRATED THAT STATE SYSTEMS, FREED
OF THE BILL OF RIGHTS' "INCONVENIENCES," HAVE BEEN MORE FAIR, JUST, OR
EFFICIENT THAN THE FEDERAL SYSTEM OF ADMINISTERING CRIMINAL JUSTICE,
WHICH HAS NEVER BEEN CLEAR OF THEIR RESTRAINTS. 

NOTWITHSTANDING BETTS V. BRADY, 316 U.S. 455, AND ITS PROGENY, I
CANNOT IMAGINE THAT STATE DENIAL OF THE RIGHT TO COUNSEL BEYOND THAT
PERMISSIBLE IN THE FEDERAL COURTS OR INDEED OF ANY OTHER GUARANTY OF
THE SIXTH AMENDMENT COULD BRING AN IMPROVEMENT IN THE ADMINISTRATION OF
JUSTICE. 

THE GUARANTIES SEEMINGLY CONSIDERED MOST OBSTRUCTIVE TO THAT PROCESS
ARE THOSE OF THE FIFTH AMENDMENT REQUIRING PRESENTMENT OR INDICTMENT OF
A GRAND JURY AND SECURING THE PRIVILEGE AGAINST SELF-INCRIMINATION; THE
RIGHTS TO JURY TRIAL AND TO THE ASSISTANCE OF COUNSEL SECURED BY THE
SIXTH AMENDMENT; AND THE REQUIREMENTS RELATING TO SUITS AT COMMON LAW
OF THE SEVENTH AMENDMENT.  WHATEVER INCONVENIENCES THESE OR ANY OF THEM
MAY BE THOUGHT TO INVOLVE ARE FAR OUTWEIGHED BY THE AGGREGATE OF
SECURITY TO THE INDIVIDUAL AFFORDED BY THE BILL OF RIGHTS.  THAT
AGGREGATE CANNOT BE SECURED, INDEED IT MAY BE LARGELY DEFEATED, SO LONG
AS THE STATES ARE LEFT FREE TO MAKE BROADLY SELECTIVE APPLICATION OF
ITS PROTECTIONS. 

MR. JUSTICE FRANKFURTER. 

UNDER THE FOURTEENTH AMENDMENT, A STATE MAY SURELY ADOPT AS ITS OWN A
PROCEDURE WHICH WAS THE ESTABLISHED METHOD FOR PROSECUTING CRIME IN
NEARLY HALF THE STATES WHICH RATIFIED THAT AMENDMENT.  AND SO, IT MAY
ABOLISH THE GRAND JURY,  FN1  OR IT MAY REDUCE THE SIZE OF THE GRAND
JURY, AND EVEN TO A SINGLE MEMBER.  A STATE HAS GREAT LEEWAY IN
DEVISING ITS JUDICIAL INSTRUMENTS FOR PROBING INTO CONDUCT AS A BASIS
FOR CHARGING THE COMMISSION OF CRIME.  IT MAY, AT THE SAME TIME,
SURROUND SUCH PRELIMINARY INQUIRY WITH SAFEGUARDS, NOT ONLY THAT CRIME
MAY BE DETECTED AND CRIMINALS PUNISHED, BUT ALSO THAT CHARGES MAY BE
SIFTED IN SECRET SO AS NOT TO INJURE OR EMBARRASS THE INNOCENT. 

FLOUTING OF SUCH A JUDICIAL INVESTIGATORY SYSTEM MAY BE PREVENTED BY
THE HITHERTO CONSTITUTIONALLY VALID POWER TO PUNISH FOR CONTEMPT. 
THERE MUST, HOWEVER, BE SUCH RECALCITRANCE, WHERE THE BASIS OF
PUNISHMENT IS TESTIMONY GIVEN OR WITHHELD, THAT THE ADMINISTRATION OF
JUSTICE IS ACTIVELY BLOCKED.  SEE EX PARTE HUDGINGS, 249 U.S. 378.  AND
THE PROCEDURAL SAFEGUARDS OF "DUE PROCESS" MUST BE OBSERVED.  DUE
NOTICE OF THE CHARGE AND A FAIR OPPORTUNITY TO MEET IT, ARE
INDISPENSABLE.  THIS INVOLVES AN OPPORTUNITY TO CANVASS THE CHARGE IN
THE OPEN AND NOT BEHIND CLOSED DOORS.  SO LONG AS A MAN HAS AMPLE
OPPORTUNITY TO DEMONSTRATE HIS INNOCENCE BEFORE HE IS HUSTLED OFF TO
JAIL, HE CANNOT COMPLAIN THAT A STATE HAS SEEN FIT TO DEVISE A NEW
PROCEDURE FOR SATISFYING THAT OPPORTUNITY.  JUST AS IT IS NOT VIOLATIVE
OF DUE PROCESS FOR A STATE TO TAKE PRIVATE PROPERTY FOR PUBLIC USE AND
LEAVE TO A LATER STAGE THE CONSTITUTIONAL VINDICATION OF THE RIGHT TO
COMPENSATION, IT DOES NOT SEEM TO ME THAT IT WOULD BE VIOLATIVE OF DUE
PROCESS TO ALLOW THE JUDGE-GRAND JUROR OF MICHIGAN TO FIND CRIMINAL
CONTEMPT FOR CONDUCT IN HIS PROCEEDINGS WITHOUT THE FAMILIAR ELEMENTS
OF AN OPEN TRIAL, PROVIDED THAT THE STATE FURNISHES THE ACCUSED A
PUBLIC TRIBUNAL BEFORE WHICH HE HAS FULL OPPORTUNITY TO BE QUIT OF THE
FINDING. 

BUT AN OPPORTUNITY TO MEET A CHARGE OF CRIMINAL CONTEMPT MUST BE A
FAIR OPPORTUNITY.  IT WOULD NOT BE FAIR, IF IN THE COURT IN WHICH THE
ACCUSED CAN CONTEST FOR THE FIRST TIME THE VALIDITY OF THE CHARGE
AGAINST HIM, HE COMES HANDICAPPED WITH A FINDING AGAINST HIM WHICH HE
DID NOT HAVE AN ADEQUATE OPPORTUNITY OF RESISTING. 

WE ARE HERE DEALING WITH THE ATTEMPT OF A STATE HAVING THE SEVENTH
LARGEST POPULATION IN THE UNION TO CURB OR MITIGATE THE COMMISSION OF
CRIMES BY EFFECTIVE PROSECUTION.  THIS PROCEDURE HAS BEEN IN OPERATION
FOR OVER THIRTY YEARS.  IT WAS NOT HEEDLESSLY ENTERED INTO NOR HAS IT
BEEN SPORADICALLY PURSUED.  IN A SERIES OF CASES IT HAS HAD THE
SANCTION OF THE HIGHEST COURT OF MICHIGAN.  WHILE THERE ARE INDICATIONS
IN THE OPINION OF THE SUPREME COURT OF MICHIGAN FROM WHICH WE COULD
INFER THE CONSTITUTIONAL INADEQUACY OF THE PROCEDURE PURSUED IN THIS
CASE, WE SHOULD NOT DECIDE CONSTITUTIONAL ISSUES AND CONCLUDE THAT THE
MICHIGAN SYSTEM OFFENDS THE CONSTITUTION OF THE UNITED STATES, WITHOUT
A CLEARER FORMULATION OF WHAT IT IS THAT ACTUALLY HAPPENS UNDER THIS
SYSTEM, OR DID HAPPEN HERE, THAN THE CASE BEFORE US REVEALS. 

IT IS TO ME SIGNIFICANT THAT THE PRECISE ISSUES ON WHICH THIS COURT
DECIDES THIS CASE HAVE NEVER BEEN EXPLICITLY CHALLENGED BEFORE, OR
PASSED ON, BY THE SUPREME COURT OF MICHIGAN IN THE SERIES OF CASES IN
WHICH THAT COURT HAD ADJUDICATED CONTROVERSIES ARISING UNDER THE
MICHIGAN GRAND JURY SYSTEM.  IF A STATE HAS DENIED THE DUE PROCESS
REQUIRED BY THE FOURTEENTH AMENDMENT, IT IS MORE CONSONANT WITH THE
DELICATE RELATIONS BETWEEN THE UNITED STATES AND THE COURTS OF THE
UNITED STATES, AND THE STATES AND THE COURTS OF THE STATES, THAT THE
COURTS OF THE STATES BE GIVEN THE FULLEST OPPORTUNITY, BY PROPER
PRESENTATION OF THE ISSUES, TO MAKE SUCH A FINDING OF
UNCONSTITUTIONALITY.    I DO NOT THINK THAT WE HAVE HAD THAT IN THIS
CASE.  FOR INSTANCE, WHILE I COULD REGARD IT INADMISSIBLE UNDER THE
FOURTEENTH AMENDMENT TO HAVE ONLY A PARTIAL AND MUTILATED RECORD OF THE
PROCEEDINGS BEFORE THE GRAND JUROR-JUDGE WHEN THE CONTEMNOR FOR THE
FIRST TIME HAS THE OPPORTUNITY TO MEET THE ACCUSATION AGAINST HIM
PUBLICLY, THE PETITIONER HIMSELF IN THIS CASE SEEMS TO REPEL THE
SUGGESTION THAT THAT IS HIS COMPLAINT.  FN2  CERTAINLY, AS MR. JUSTICE
JACKSON POINTS OUT, THE FIRST GROUND OF THE COURT'S OPINION WAS NOT
MADE THE BASIS FOR INVITING OUR REVIEW HERE.  I AGREE WITH HIM IN
CONCLUDING THAT IN THE LIGHT OF OUR DECISION THE OTHER DAY IN MUSSER V.
UTAH, 333 U.S. 95, IN CONJUNCTION WITH RESCUE ARMY V. MUNICIPAL COURT,
331 U.S. 549, THE CAUSE SHOULD BE RETURNED TO THE SUPREME COURT OF
MICHIGAN TO ENABLE THAT COURT TO PASS UPON THESE ISSUES. 

FN1  IN SUSTAINING THIS POWER OF THE STATES, THE COURT ENUNCIATED A
PRINCIPLE THE FORCE OF WHICH HAS NOT LESSENED WITH TIME:  "THE
CONSTITUTION OF THE UNITED STATES WAS ORDAINED, IT IS TRUE, BY
DESCENDANTS OF ENGLISHMEN, WHO INHERITED THE TRADITIONS OF ENGLISH LAW
AND HISTORY; BUT IT WAS MADE FOR AN UNDEFINED AND EXPANDING FUTURE, AND
FOR A PEOPLE GATHERED AND TO BE GATHERED FROM MANY NATIONS AND OF MANY
TONGUES.  AND WHILE WE TAKE JUST PRIDE IN THE PRINCIPLES AND
INSTITUTIONS OF THE COMMON LAW, WE ARE NOT TO FORGET THAT IN LANDS
WHERE OTHER SYSTEMS OF JURISPRUDENCE PREVAIL, THE IDEAS AND PROCESSES
OF CIVIL JUSTICE ARE ALSO NOT UNKNOWN.  DUE PROCESS OF LAW, IN SPITE OF
THE ABSOLUTISM OF CONTINENTAL GOVERNMENTS, IS NOT ALIEN TO THAT CODE
WHICH SURVIVED THE ROMAN EMPIRE AS THE FOUNDATION OF MODERN
CIVILIZATION IN EUROPE, AND WHICH HAS GIVEN US THAT FUNDAMENTAL MAXIM
OF DISTRIBUTIVE JUSTICE - SUUM CUIQUE TRIBUERE.  THERE IS NOTHING IN
MAGNA CHARTA, RIGHTLY CONSTRUED AS A BROAD CHARTER OF PUBLIC RIGHT AND
LAW, WHICH OUGHT TO EXCLUDE THE BEST IDEAS OF ALL SYSTEMS AND OF EVERY
AGE; AND AS IT WAS THE CHARACTERISTIC PRINCIPLE OF THE COMMON LAW TO
DRAW ITS INSPIRATION FROM EVERY FOUNTAIN OF JUSTICE, WE ARE NOT TO
ASSUME THAT THE SOURCES OF ITS SUPPLY HAVE BEEN EXHAUSTED.  ON THE
CONTRARY, WE SHOULD EXPECT THAT THE NEW AND VARIOUS EXPERIENCES OF OUR
OWN SITUATION AND SYSTEM WILL MOULD AND SHAPE IT INTO NEW AND NOT LESS
USEFUL FORMS."  HURTADO V. CALIFORNIA, 110 U.S. 516, 530-31. 

FN2  "NEITHER IN OUR BRIEF NOR IN OUR ARGUMENT BEFORE THE COURT HAVE
WE URGED THIS COURT TO REVERSE THIS CONVICTION MERELY BECAUSE THE
PARTIAL RETURN OF THE WITNESS'S TESTIMONY TO THE SUPREME COURT
CONSTITUTED A DENIAL OF DUE PROCESS.  ...  THE QUESTIONS WE PRESENT ARE
MUCH MORE BASIC,  - THE DENIAL OF DUE PROCESS IN THE ORIGINAL
COMMITMENT.   ...  (TO) US IT IS MUCH MORE SHOCKING THAT AN ACCUSED
CHARGED WITH CONTEMPT NOT COMMITTED IN OPEN COURT BE DENIED ANY TRIAL
IN THE LOWER COURT THAN THAT HE BE GIVEN A TRIAL ONLY UPON AN
INCOMPLETE RECORD IN THE APPELLATE COURT."  PETITIONER'S "BRIEF IN
ANSWER TO BRIEF OF STATE BAR OF MICHIGAN," PP. 13-14. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE FRANKFURTER AGREES,
DISSENTING. 

THE PRINCIPAL GROUND ASSIGNED FOR REVERSAL OF THE JUDGMENT OF
CONVICTION IS THE ALLEGED SECRECY OF THE CONTEMPT PROCEDURE.  THAT
GROUND WAS NOT ASSIGNED FOR REVIEW IN THE PETITION FOR CERTIORARI TO
THIS COURT.  NOR WAS IT RAISED IN THE PETITION FOR WRIT OF HABEAS
CORPUS IN THE STATE COURTS.  THEREFORE, IT HAS NOT BEEN LITIGATED AND
THE RECORD HAS NOT BEEN MADE WITH REFERENCE TO IT.  ON THE OTHER HAND,
THE PRINCIPAL QUESTION RAISED BY THE PETITION TO THIS COURT AND ARGUED
BY THE STATE IS NOT DECIDED BY THE COURT'S OPINION. 

WHEN A CASE HERE FROM A STATE COURT INVOLVES A QUESTION NOT LITIGATED
BELOW, NOT RAISED BY PETITIONER HERE AND WHICH THE STATE COURT HAS HAD
NO OPPORTUNITY TO PASS UPON, WE SHOULD REMAND THE CASE FOR ITS FURTHER
CONSIDERATION, AS WAS JUST DONE IN MUSSER V. UTAH, 333 U.S. 95. 
..END :
























UNITED STATES V. LINE MATERIAL CO., 333 U.S. 287 


NO. 8.  ARGUED APRIL 29, 1947.  REARGUED NOVEMBER 12-13, 1947.  -
DECIDED MARCH 8, 1948.  - 64 F.SUPP.  970, REVERSED. 


1.  ARRANGEMENTS BETWEEN TWO PATENTEES FOR CROSS-LICENSING OF THEIR
INTERDEPENDENT PRODUCT PATENTS, AND FOR LICENSING EXCLUSIVELY BY ONE OF
THEM OF OTHER MANUFACTURERS TO MAKE AND VEND UNDER BOTH PATENTS, WHICH
ARRANGEMENTS, TOGETHER WITH THOSE ENTERED INTO SEPARATELY WITH OTHER
LICENSEES, WERE INTENDED TO AND DID CONTROL THE PRICES AT WHICH
PRODUCTS EMBODYING BOTH PATENTS WERE SOLD IN INTERSTATE COMMERCE BY THE
PATENTEES AND ALL LICENSEES, HELD VIOLATIVE OF SEC. 1 OF THE SHERMAN
ACT.  PP. 288-299, 305-315. 

(A)  UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476,
DISTINGUISHED.  PP. 299-305, 310-312. 

(B)  SUCH A PRICE-FIXING ARRANGEMENT BETWEEN TWO OR MORE PATENTEES
TRANSCENDS THE LIMITS OF THE PATENT MONOPOLY GRANTED TO EACH OF THEM;
AND IT VIOLATES SEC. 1 OF THE SHERMAN ACT NO MATTER HOW ADVANTAGEOUS IT
MAY BE TO STIMULATE THE BROADER USE OF THE PATENTS.  PP. 310-313, 314
315. 

2.  LICENSEES WHO, WITH KNOWLEDGE OF SUCH ARRANGEMENTS, ENTER INTO
LICENSES CONTAINING PRICE-MAINTENANCE PROVISIONS ARE LIKWISE SUBJECT TO
THE PROHIBITIONS OF THE SHERMAN ACT.  P. 315. 

UNITED STATES V. LINE MATERIAL CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF WISCONSIN. 

THE UNITED STATES BROUGHT SUIT UNDER SEC. 4 OF THE SHERMAN ACT TO
RESTRAIN AN ALLEGED VIOLATION OF SEC. 1 BY THE APPELLEES.  THE DISTRICT
COURT DISMISSED THE COMPLAINT.  64 F.SUPP.  970.  THE UNITED STATES
APPEALED DIRECTLY TO THIS COURT UNDER THE EXPEDITING ACT.  REVERSED AND
REMANDED, P. 315. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES SOUGHT AN INJUNCTION UNDER SECS. 1 AND 4 OF THE
SHERMAN ACT  FN1  IN THE DISTRICT COURT AGAINST CONTINUANCE OF
VIOLATIONS OF THAT ACT BY AN ALLEGEDLY UNLAWFUL COMBINATION OR
CONSPIRACY BETWEEN APPELLEES, THROUGH CONTRACTS, TO RESTRAIN INTERSTATE
TRADE IN CERTAIN PATENTED ELECTRICAL DEVICES.  THE RESTRAINT ALLEGED
AROSE FROM A CROSS-LICENSE ARRANGEMENT BETWEEN THE PATENT OWNERS, LINE
MATERIAL COMPANY AND SOUTHERN STATES EQUIPMENT CORPORATION, TO FIX THE
SALE PRICE OF THE DEVICES, TO WHICH ARRANGEMENT THE OTHER APPELLEES,
LICENSEES TO MAKE AND VEND, ADHERED BY SUPPLEMENTAL CONTRACTS.  FN2 

THE DISTRICT COURT, 64 F.SUPP.  970, DISMISSED THE COMPLAINT AS TO
ALL DEFENDANTS UPON ITS CONCLUSION THAT THE RULE OF UNITED STATES V.
GENERAL ELECTRIC CO., 272 U.S. 476, WAS CONTROLLING.  THAT CASE
APPROVED AS LAWFUL A PATENTEE'S LICENSE TO MAKE AND VEND WHICH REQUIRED
THE LICENSEE IN ITS SALES OF THE PATENTED DEVICES TO CONFORM TO THE
LICENSOR'S SALE PRICE SCHEDULE.  APPEAL WAS TAKEN DIRECTLY TO THIS
COURT, 32 STAT. 823, AND PROBABLE JURISDICTION NOTED HERE ON OCTOBER
21, 1946.  WE HAVE JURISDICTION.  FN3

                      I. THE FACTS. 

THE CHALLENGED ARRANGEMENTS CENTER AROUND THREE PRODUCT PATENTS,
WHICH ARE USEFUL IN PROTECTING AN ELECTRIC CIRCUIT FROM THE DANGERS
INCIDENT TO A SHORT CIRCUIT OR OTHER OVERLOAD.  TWO OF THEM ARE DROPOUT
FUSE CUTOUTS AND THE THIRD IS A HOUSING SUITABLE FOR USE WITH ANY
CUTOUT.  DROPOUT FUSE CUTOUTS MAY BE USED WITHOUT ANY HOUSING.  THE
DISTRICT COURT FOUND THAT 40.77% OF ALL CUTOUTS MANUFACTURED AND SOLD
BY THESE DEFENDANTS WERE PRODUCED UNDER THESE PATENTS.  THIS WAS
SUBSTANTIALLY ALL THE DROPOUT FUSE CUTOUTS MADE IN THE UNITED STATES. 
THERE ARE COMPETITIVE DEVICES THAT PERFORM THE SAME FUNCTIONS
MANUFACTURED BY APPELLEES AND OTHERS UNDER DIFFERENT PATENTS THAN THOSE
HERE INVOLVED. 

THE DOMINANT PATENT, NO. 2,150,102, IN THE FIELD OF DROPOUT FUSE
CUTOUTS WITH DOUBLE JOINTED HINGE CONSTRUCTION WAS ISSUED MARCH 7,
1939, TO THE SOUTHERN STATES EQUIPMENT CORPORATION, ASSIGNEE, ON AN
APPLICATION OF GEORGE N. LEMMON.  FN4  THIS PATENT READS UPON A PATENT
NO. 2,176,227, REISSUED DECEMBER 21, 1943, RE. 22,412, ISSUED OCTOBER
17, 1939 TO LINE MATERIAL COMPANY, ASSIGNEE, ON AN APPLICATION BY
SCHULTZ AND STEINMAYER.  FN5  THE HOUSING PATENT NO. 1,781,876,
REISSUED MARCH 31, 1931, AS RE. 18,020, AND AGAIN FEBRUARY 5, 1935, AS
RE. 19,449, WAS ISSUED NOVEMBER 18, 1930 TO LINE, ASSIGNEE, ON AN
APPLICATION BY W.D. KYLE.  THE KYLE PATENT COVERS A WET-PROCESS
PORCELAIN BOX WITH GREAT DIELECTRIC STRENGTH, WHICH MAY BE ECONOMICALLY
CONSTRUCTED AND HAS BEEN COMMERCIALLY SUCCESSFUL.  WE GIVE NO WEIGHT TO
THE PRESENCE OF THE KYLE PATENT IN THE LICENSES. 

THE APPLICATIONS FOR THE LEMMON AND SCHULTZ PATENTS WERE PENDING
SIMULTANEOUSLY.  THEY WERE DECLARED IN INTERFERENCE AND A CONTEST
RESULTED.  THE DECISION OF THE PATENT OFFICE AWARDING DOMINANT CLAIMS
TO SOUTHERN AND SUBSERVIENT CLAIMS TO LINE ON THE LEMMON AND THE
SCHULTZ APPLICATIONS MADE IT IMPOSSIBLE FOR ANY MANUFACTURER TO USE
BOTH PATENTS WHEN LATER ISSUED WITHOUT SOME CROSS-LICENSING
ARRANGEMENT.  CF. TEMCO ELECTRIC MOTOR CO. V. APCO MFG. CO., 275 U.S.
319, 328.  ONLY WHEN BOTH PATENTS COULD BE LAWFULLY USED BY A SINGLE
MAKER COULD THE PUBLIC OR THE PATENTEES OBTAIN THE FULL BENEFIT OF THE
EFFICIENCY AND ECONOMY OF THE INVENTIONS.  NEGOTIATIONS WERE STARTED BY
LINE WHICH EVENTUATED IN THE CHALLENGED ARRANGEMENTS. 

THE FIRST DEFINITIVE DOCUMENT WAS A BILATERAL, ROYALTY-FREE, CROSS
LICENSE AGREEMENT OF MAY 23, 1938, BETWEEN SOUTHERN AND LINE AFTER THE
PATENT OFFICE AWARD BUT BEFORE THE PATENTS ISSUED.  THIS, SO FAR AS
HERE PERTINENT, WAS A LICENSE TO SOUTHERN BY LINE TO MAKE AND VEND THE
PROSPECTIVE SCHULTZ PATENTED APPARATUS WITH THE EXCLUSIVE RIGHT TO
GRANT LICENSES OR SUBLICENSES TO OTHERS.  LINE ALSO GRANTED SOUTHERN
THE RIGHT TO MAKE AND VEND BUT NOT TO SUBLICENSE THE KYLE PATENT. 
SOUTHERN LICENSED LINE TO MAKE AND VEND BUT NOT TO SUBLICENSE THE
PROSPECTIVE LEMMON PATENT FOR DEFINED EQUIPMENT WHICH INCLUDED THE
SCHULTZ APPARATUS.  SUBLICENSE ROYALTIES AND EXPENSES WERE TO BE
DIVIDED BETWEEN LINE AND SOUTHERN.  ALTHOUGH A MEMORANDUM OF AGREEMENT
OF JANUARY 12, 1938, BETWEEN THE PARTIES HAD NO SUCH REQUIREMENT, LINE
AGREED TO SELL EQUIPMENT COVERED BY THE SOUTHERN PATENT AT PRICES NOT
LESS THAN THOSE FIXED BY SOUTHERN.  SOUTHERN MADE THE SAME AGREEMENT
FOR EQUIPMENT COVERED SOLELY BY THE LINE PATENT.  NO REQUIREMENT FOR
PRICE LIMITATION UPON SALES BY OTHER MANUFACTURERS UNDER LICENSE WAS
INCLUDED. 

SIX OF THE OTHER MANUFACTURERS  FN6  HERE INVOLVED WERE ADVISED BY
LINE BY LETTER, DATED JUNE 13, 1938, THAT SOUTHERN HAD AUTHORITY TO
GRANT LICENSES UNDER THE SCHULTZ PROSPECTIVE PATENT.  ON OCTOBER 3,
1938, KEARNEY TOOK FROM SOUTHERN A LICENSE TO PRACTICE THE LEMMON AND
SCHULTZ PATENTS.  THE LICENSE HAD A PRICE, TERM AND CONDITION OF SALE
CLAUSE, GOVERNED BY SOUTHERN'S PRICES, WHICH BOUND KERNEY TO MAINTAIN
THE PRICES ON ITS SALES OF DEVICES COVERED BY THE PATENTS.  ON OCTOBER
7, 1938, THE FIVE OTHER MANUFACTURERS MENTIONED ABOVE WERE OFFERED BY
SOUTHERN THE SAME CONTRACT AS THE STANDARD LICENSOR'S AGREEMENT.  THE
KEARNEY CONTRACT WAS DISCUSSED AT CHICAGO IN OCTOBER, 1938, BY ALL OF
THE ABOVE MANUFACTURERS EXCEPT RAILWAY.  PACIFIC ALSO PARTICIPATED.  IT
NEVER WAS ENFORCED.  THE FIRST PATENT INVOLVED IN THIS CASE DID NOT
ISSUE UNTIL MARCH, 1939.  THOSE MANUFACTURERS WHO WERE MAKING DOUBLE
JOINTED OPEN AND ENCLOSED DROPOUT CUTOUTS WANTED TO AND DID EXPLORE
COOPERATIVELY (F.F. 15) THE VALIDITY OF THE PATENTS.  THEY FAILED TO
FIND A SATISFACTORY BASIS FOR ATTACK.  THEY WERE FACES WITH
INFRINGEMENT SUITS.  OTHER REASONS DEVELOPED FOR THE REFUSAL OF THE SIX
MANUFACTURERS TO ACCEPT THE KEARNEY FORM CONTRACTS (F.F. 16 & 17)
UNNECESSARY TO DETAIL HERE.  ONE REASON WAS THAT THE PROSPECTIVE
SUBLICENSEES PREFERRED LINE TO SOUTHERN AS LICENSOR BECAUSE OF THE FACT
THAT LINE, AS OWNER AND MANUFACTURER, WOULD LICENSE THE KYLE PATENT. 
NEW ARRANGEMENTS WERE PROPOSED FOR THE LICENSEES.  AFTER MUTUAL
DISCUSSION BETWEEN THE LICENSEES AND PATENTEES, THESE NEW AGREEMENTS
WERE SUBMITTED.  A FINDING TO WHICH NO OBJECTION IS MADE STATES: 

"ON OCTOBER 24, 1939, GENERAL ELECTRIC, WESTINGHOUSE, KEARNEY,
MATTHEWS, SCHWEITZER AND CONRAD, AND RAILWAY MET WITH LINE IN CHICAGO
AND JOINTLY DISCUSSED DRAFTS OF THE PROPOSED LICENSE AGREEMENTS UNDER
THE LEMMON, SCHULTZ, AND KYLE PATENTS.  THEREAFTER, IDENTICAL SETS OF
REVISED LICENSES WERE SENT BY LINE TO GENERAL ELECTRIC, WESTINGHOUSE,
MATTHEWS, SCHWEITZER AND CONRAD, AND THE ATTORNEYS FOR RAILWAY AND
KEARNEY." 

A FORM FOR A PROPOSED LICENSING AGREEMENT THAT CONTAINED THE
ESSENTIAL ELEMENTS OF THE PRICE PROVISION ULTIMATELY INCLUDED IN THE
LICENSES HAD BEEN CIRCULATED AMONG PROSPECTIVE LICENSEES BY LINE BY
LETTERS UNDER DATE OF OCTOBER 6, 1939. 

TO MEET THE VARIOUS OBJECTIONS OF THE FUTURE LICENSEES, THE AGREEMENT
OF MAY 23, 1938, BETWEEN SOUTHERN AND LINE WAS REVISED AS OF JANUARY
12, 1940.  EXCEPT FOR THE SUBSTITUTION OF LINE FOR SOUTHERN AS LICENSOR
OF OTHER MANUFACTURERS, IT FOLLOWS GENERALLY THE FORM OF THE EARLIER
AGREEMENT.  THERE WERE ROYALTY-FREE CROSS-LICENSES OF THE SCHULTZ AND
LEMMON PATENTS SUBSTANTIALLY AS BEFORE.  LINE WAS GIVEN THE EXCLUSIVE
RIGHT TO GRANT SUBLICENSES TO OTHERS FOR LEMMON.  FN7 SOUTHERN RETAINED
THE PRIVILEGE, ROYALTY FREE, OF MAKING AND VENDING THE KYLE PATENT,
ALSO.  SOUTHERN BOUND ITSELF TO MAINTAIN PRICES, SO LONG AS LINE
REQUIRED OTHER LICENSEES TO DO SO.  FN8 EVEN IF IT BE ASSUMED THAT THE
PROPER INTERPRETATION OF THE LINE-SOUTHERN AGREEMENT PERMITTED SOUTHERN
TO MANUFACTURE UNDER ITS OWN LEMMON PATENT WITHOUT PRICE CONTROL, THE
PRACTICAL RESULT IS THAT SOUTHERN DOES HAVE ITS PRICE FOR ITS PRODUCTS
FIXED BECAUSE THE ONLY COMMERCIALLY SUCCESSFUL FABRICATION IS UNDER A
COMBINATION OF THE LEMMON AND SCHULTZ PATENTS.  FINDINGS OF FACT 7 AND
10. 

THE PRICE MAINTENANCE FEATURE WAS REFLECTED IN ALL THE LICENSES TO
MAKE AND VEND GRANTED BY LINE, UNDER THE LINE-SOUTHERN CONTRACT, TO THE
OTHER APPELLEES.  THERE WERE VARIATIONS IN THE PRICE PROVISIONS THAT
ARE NOT SIGNIFICANT FOR THE ISSUES OF THIS CASE.  A FAIR EXAMPLE
APPEARS BELOW.  FN9 THE EXECUTION OF THESE SUBLICENSES BY THE OTHER
APPELLEES, EXCEPT JOHNSON AND ROYAL, FN10  FOLLOWED WITHIN A YEAR. 
LICENSES WERE EXECUTED BY THE TWO ON JUNE 15, 1943, AND MARCH 24, 1944,
RESPECTIVELY.  AFTER AUGUST 1, 1940, SINCE A NUMBER OF THE APPELLEES
HAD EXECUTED THE LICENSE CONTRACTS, TWO CONSULTATIONS OF THE LICENSEES
AND THE PATENTEES WERE HELD TO CLASSIFY THE PRODUCTS OF THE VARIOUS
LICENSEES IN COMPARISON WITH THE LICENSOR'S DEVICES.  FN11  THE TRIAL
JUDGE FOUND THAT PRICES WERE NOT DISCUSSED.  THESE WERE FIXED BY LINE
WITHOUT DISCUSSION WITH OR ADVICE FROM ANY OTHER APPELLEE.  THERE CAN
BE NO DOUBT, HOWEVER, THAT EACH LICENSEE KNEW OF THE PROPOSED PRICE
PROVISIONS IN THE LICENSES OF OTHER LICENSEES FROM THE CIRCULATION OF
PROPOSED FORM OF LICENSE ON OCTOBER 6, 1939, SUBSEQUENT CONSULTATIONS
AMONG THE LICENSEES AND AN ESCROW AGREEMENT, FULFILLED JULY 11, 1940. 
THAT AGREEMENT WAS ENTERED INTO AFTER GENERAL ELECTRIC TOOK ITS LICENSE
AND REQUIRED FOR FULFILLMENT THE ACCEPTANCE OF IDENTICAL LICENSES BY
MATTEWS, KEARNEY AND RAILWAY.  THE LICENSES THAT WERE THE SUBJECT OF
THE ESCROW CONTAINED THE PRICE PROVISIONS OF GENERAL ELECTRIC'S
LICENSE.  THIS AWARENESS BY EACH SIGNER OF THE PRICE PROVISIONS IN
PRIOR CONTRACTS IS CONCEDED BY APPELLEES' BRIEF.  A PRICE SCHEDULE
BECAME EFFECTIVE JANUARY 18, 1941.  THEREAFTER, ALL THE APPELLEES TRIED
TO MAINTAIN PRICES.  WHERE THERE WAS ACCIDENTAL VARIATION, LINE WROTE
THE LICENSEE CALLING ATTENTION TO THE FAILURE.  FN12 

THE LICENSES WERE THE RESULT OF ARM'S LENGTH BARGAINING IN EACH
INSTANCE.  PRICE LIMITATION WAS ACTIVELY OPPOSED IN TOTO OR RESTRICTION
OF ITS SCOPE SOUGHT BY SEVERAL OF THE LICENSEES, INCLUDING GENERAL
ELECTRIC, THE LARGEST PRODUCER OF THE PATENTED APPLIANCES.  A NUMBER
TRIED ENERGETICALLY TO FIND SUBSTITUTES FOR THE DEVICES.  ALL THE
LICENSEES, HOWEVER, WERE FORCED TO ACCEPT THE TERMS OR CEASE
MANUFACTURE.  BY ACCEPTING THEY SECURED RELEASE FROM CLAIMS FOR PAST
INFRINGEMENT THROUGH A PROVISION TO THAT EFFECT IN THE LICENSE.  THE
PATENTEES THROUGH THE LICENSES SOUGHT SYSTEM IN THEIR ROYALTY
COLLECTIONS AND PECUNIARY REWARD FOR THEIR PATENT MONOPOLY. 
UNDOUBTEDLY ONE PURPOSE OF THE ARRANGEMENTS WAS TO MAKE POSSIBLE THE
USE BY EACH MANUFACTURER OF THE LEMMON AND SCHULTZ PATENTS.  THESE
PATENTS IN SEPARATE HANDS PRODUCED A DEADLOCK.  LEMMON BY HIS BASIC
PATENT "BLOCKED" SCHULTZ'S IMPROVEMENT.  CROSS-LICENSES FURNISHED
APPELLEES A SOLUTION. 

ON CONSIDERATION OF THE AGREEMENTS AND THE CIRCUMSTANCES SURROUNDING
THEIR NEGOTIATION AND EXECUTION, THE DISTRICT COURT FOUND THAT THE
ARRANGEMENTS, AS A WHOLE, WERE MADE IN GOOD FAITH, TO MAKE POSSIBLE THE
MANUFACTURE BY ALL APPELLEES OF THE PATENTED DEVICES, TO GAIN A
LEGITIMATE RETURN TO THE PATENTEES ON THE INVENTIONS; AND THAT, APART
FROM THE WRITTEN AGREEMENTS, THERE WAS NO UNDERTAKING BETWEEN THE
APPELLEES OR ANY OF THEM TO FIX PRICES.  FN13  BEING CONVINCED, AS WE
INDICATED AT THE FIRST OF THIS OPINION, THAT THE GENERAL ELECTRIC CASE
CONTROLLED AND PERMITTED SUCH PRICE ARRANGEMENTS AS ARE DISCLOSED IN
THE CONTRACTS, THE DISTRICT COURT DISMISSED THE COMPLAINT.  THE
GOVERNMENT ATTACKS THE RATIONALE OF THE GENERAL ELECTRIC CASE AND URGES
THAT IT BE OVERRULED, LIMITED AND EXPLAINED OR DIFFERENTIATED. 

           II.  THE GENERAL ELECTRIC CASE. 

THAT CASE WAS DECIDED IN 1926 BY A UNANIMOUS COURT, CHIEF JUSTICE
TAFT WRITING.  IT INVOLVED A BILL IN EQUITY TO ENJOIN FURTHER
VIOLATIONS OF THE SHERMAN ACT.  WHILE VIOLATIONS OF THE ACT BY
AGREEMENTS FIXING THE RESALE PRICE OF PATENTED ARTICLES (INCANDESCENT
LIGHT BULBS) SOLD TO DEALERS ALSO WERE ALLEGED IN THE BILL, SO FAR AS
HERE MATERIAL THE PERTINENT ALLEGED VIOLATION WAS AN AGREEMENT BETWEEN
GENERAL ELECTRIC AND WESTINGHOUSE COMPANY THROUGH WHICH WESTINGHOUSE
WAS LICENSED TO MANUFACTURE LAMPS UNDER A NUMBER OF GENERAL ELECTRIC'S
PATENTS, INCLUDING A PATENT ON THE USE OF TUNGSTEN FILAMENT IN THE
BULB, ON CONDITION THAT IT SHOULD SELL THEM AT PRICES FIXED BY THE
LICENSOR.  ON CONSIDERING AN OBJECTION TO THE FIXING OF PRICES ON BULBS
WITH A TUNGSTEN FILAMENT, THE PRICE AGREEMENT WAS UPHELD AS A VALID
EXERCISE OF PATENT RIGHTS BY THE LICENSOR. 

SPEAKING OF THE ARRANGEMENT, THIS COURT SAID:  "IF THE PATENTEE  ...
LICENSES THE SELLING OF THE ARTICLES (BY A LICENSEE TO MAKE), MAY HE
LIMIT THE SELLING BY LIMITING THE METHOD OF SALE AND THE PRICE?  WE
THINK HE MAY DO SO, PROVIDED THE CONDITIONS OF SALE ARE NORMALLY AND
REASONABLY ADAPTED TO SECURE PECUNIARY REWARD FOR THE PATENTEE'S
MONOPOLY."  P. 490.  THIS PROVISO MUST BE READ AS DIRECTED AT
AGREEMENTS BETWEEN A PATENTEE AND A LICENSEE TO MAKE AND VEND.  THE
ORIGINAL CONTEXT OF THE WORDS JUST QUOTED MAKES CLEAR THAT THEY CARRY
NO IMPLICATION OF APPROVAL OF ALL A PATENTEE'S CONTRACTS WHICH TEND TO
INCREASE EARNINGS ON PATENTS.  THE OPINION RECOGNIZES THE FIXED RULE
THAT A SALE OF THE PATENTED ARTICLE PUTS CONTROL OF THE PURCHASER'S
RESALE PRICE BEYOND THE POWER OF THE PATENTEE.  P. 489.  COMPARE UNITED
STATES V. UNIVIS LENS CO., 316 U.S. 241.  NOR CAN ANYTHING BE FOUND IN
THE GENERAL ELECTRIC CASE WHICH WILL SERVE AS A BASIS TO ARGUE
OTHERWISE THAN THAT THE PRECISE TERMS OF THE GRANT DEFINE THE LIMITS OF
A PATENTEE'S MONOPOLY AND THE AREA IN WHICH THE PATENTEE IS FREED FROM
COMPETITION OF PRICE, SERVICE, QUALITY OR OTHERWISE.  COMPARE MERCOID
CORPORATION V. MID-CONTINENT INV. CO., 320 U.S. 661, 665, 666; UNITED
STATES V. MASONITE CORP., 316 U.S. 265, 277-78, 280; MOTION PICTURE
PATENTS CO. V. UNIVERSAL FILM MFG. CO., 243 U.S. 502, 510. 

GENERAL ELECTRIC IS A CASE THAT HAS PROVOKED CRITICISM AND APPROVAL. 
IT HAD ONLY BARE RECOGNITION IN ETHYL GASOLINE CORP. V. UNITED STATES,
309 U.S. 436, 456.  THAT CASE EMPHASIZED THE RULE AGAINST THE EXTENSION
OF THE PATENT MONOPOLY, P. 456, TO RESALE PRICES OR TO AVOID
COMPETITION AMONG BUYERS.  PAGES 457-58.  WE FOUND IT UNNECESSARY TO
RECONSIDER THE RULE IN UNITED STATES V. MASONITE CORP., 316 U.S. 265,
277, ALTHOUGH THE ARRANGEMENT THERE WAS FOR SALE OF PATENTED ARTICLES
AT FIXED PRICES BY DEALERS WHOM THE PATENTEE CLAIMED WERE DEL CREDERE
AGENTS.  AS WE CONCLUDED THE PATENT PRIVILEGE WAS EXHAUSTED BY A
TRANSFER OF THE ARTICLES TO CERTAIN AGENTS WHO WERE PART OF THE SALES
ORGANIZATION OF COMPETITORS, DISCUSSION OF THE PRICE-FIXING LIMITATION
WAS NOT REQUIRED.  IN KATZINGER CO. V. CHICAGO MFG. CO., 329 U.S. 394,
398, WHERE A SUIT WAS BROUGHT TO RECOVER ROYALTIES ON A LICENSE WITH
PRICE LIMITATIONS, THIS COURT REFUSED TO EXAMINE THE GENERAL ELECTRIC
RULE BECAUSE OF THE CLAIMED ILLEGALITY OF THE KATZINGER PATENT.  IF THE
PATENT WERE INVALID, THE PRICE-FIXING AGREEMENT WOULD BE UNLAWFUL.  WE
AFFIRMED THE ACTION OF THE CIRCUIT COURT OF APPEALS IN REMANDING THE
CASE TO THE DISTRICT COURT TO DETERMINE THE VALIDITY OF THE PATENT. 
THE GENERAL ELECTRIC CASE WAS CITED WITH APPROVAL IN CARBICE CORP. V.
AMERICAN PATENTS DEVELOPMENT CORP., 283 U.S. 27, 31.  OTHER COURTS HAVE
EXPLAINED OR DISTINGUISHED THE GENERAL ELECTRIC RULE.  FN14  AS A
REASON FOR ASKING THIS COURT TO REEXAMINE THE RULE OF THE GENERAL
ELECTRIC CASE, THE GOVERNMENT STATES THAT PRICE MAINTENANCE UNDER
PATENTS THROUGH VARIOUS TYPES OF AGREEMENTS IS INVOLVED IN CERTAIN
PENDING CASES.  FN15  FURTHERMORE, THE POINT IS MADE THAT THERE IS SUCH
A "HOST OF DIFFICULT AND UNSETTLED QUESTIONS" ARISING FROM THE GENERAL
ELECTRIC HOLDING THAT THE SIMPLEST SOLUTION IS TO OVERRULE THE
PRECEDENT ON THE POWER OF A PATENTEE TO ESTABLISH SALE PRICES OF A
LICENSEE TO MAKE AND VEND A PATENTED ARTICLE.  FN16 

SUCH A LIQUIDATION OF THE DOCTRINE OF A PATENTEE'S POWER TO DETERMINE
A LICENSEE'S SALE PRICE OF A PATENTED ARTICLE WOULD SOLVE PROBLEMS
ARISING FROM ITS ADOPTION.  SINCE 1902, HOWEVER, WHEN BEMENT V.
NATIONAL HARROW CO., 186 U.S. 70, WAS DECIDED, A PATENTEE HAS BEEN ABLE
TO CONTROL HIS LICENSEE'S SALE PRICE WITHIN THE LIMITS OF THE PATENT
MONOPOLY.  FN17  LITIGATION THAT THE RULE HAS ENGENDERED PROVES THAT
BUSINESS ARRANGEMENTS HAVE BEEN REPEATEDLY, EVEN THOUGH HESITATINGLY,
MADE IN RELIANCE UPON THE CONTRACTORS' INTERPRETATION OF ITS MEANING. 
APPELLEES URGE THAT CONGRESS HAS TAKEN NO STEPS TO MODIFY THE RULE. 
FN18  SUCH LEGISLATIVE ATTITUDE IS TO BE WEIGHED WITH THE
COUNTERBALANCING FACT THAT THE RULE OF THE GENERAL ELECTRIC CASE GREW
OUT OF A JUDICIAL DETERMINATION.  THE WRITER ACCEPTS THE RULE OF THE
GENERAL ELECTRIC CASE AS INTERPRETED BY THE THIRD SUBDIVISION OF THIS
OPINION.  AS A MAJORITY OF THE COURT DOES NOT AGREE WITH THAT POSITION,
THE CASE CANNOT BE REAFFIRMED ON THAT BASIS.  NEITHER IS THERE A
MAJORITY TO OVERRULE GENERAL ELECTRIC.  IN THESE CIRCUMSTANCES, WE MUST
PROCEED TO DETERMINE THE ISSUES ON THE ASSUMPTION THAT GENERAL ELECTRIC
CONTINUES AS A PRECEDENT.  FURTHERMORE, WE DO NOT THINK IT WISE TO
UNDERTAKE TO EXPLAIN, FURTHER THAN THE FACTS OF THIS CASE REQUIRE, OUR
VIEWS AS TO THE APPLICABILITY OF PATENT PRICE LIMITATION IN THE VARIOUS
SITUATIONS LISTED BY THE GOVERNMENT.  ON THAT ASSUMPTION WHERE A
CONSPIRACY TO RESTRAIN TRADE OR AN EFFORT TO MONOPOLIZE IS NOT
INVOLVED, A PATENTEE MAY LICENSE ANOTHER TO MAKE AND VEND THE PATENTED
DEVICE WITH A PROVISION THAT THE LICENSEE'S SALE PRICE SHALL BE FIXED
BY THE PATENTEE.  THE ASSUMPTION IS STATED IN THIS WAY SO AS TO LEAVE
ASIDE THE MANY VARIABLES OF THE GENERAL ELECTRIC RULE THAT MAY ARISE. 
FOR EXAMPLE, THERE MAY BE AN AGGREGATION OF PATENTS TO OBTAIN DOMINANCE
IN A PATENT FIELD, BROAD OR NARROW, OR A PATENT MAY BE USED AS A PEG
UPON WHICH TO ATTACH CONTRACTS WITH FORMER OR PROSPECTIVE COMPETITORS,
TOUCHING BUSINESS RELATIONS OTHER THAN THE MAKING AND VENDING OF
PATENTED DEVICES.  COMPARE UNITED STATES V. UNITED STATES GYPSUM CO.,
POST, P. 364, DECIDED TODAY; UNITED STATES V. MASONITE CORP., 316 U.S.
265. 

IT MAY BE HELPFUL TO SPECIFY CERTAIN POINTS THAT EITHER ARE NOT
CONTESTED OR ARE NOT DECIDED IN THIS CASE.  THE AGREEMENTS, IF ILLEGAL,
RESTRAIN INTERSTATE COMMERCE CONTRARY TO THE SHERMAN ACT.  NO ISSUE OF
MONOPOLY IS INVOLVED.  (F.F. 31.)  CF. AMERICAN TOBACCO CO. V. UNITED
STATES, 328 U.S. 781, 788.  THAT IS TO SAY, THE COMPLAINT CHARGES
RESTRAINT OF TRADE UNDER SEC. 1 AND DOES NOT CHARGE "MONOPOLY" UNDER
SEC. 2 OF THE SHERMAN ACT, SO THAT WE NEED NOT DEAL WITH THE PROBLEMS
OF CONSOLIDATION, MERGER, PURCHASE OF COMPETITORS OR SIZE OF BUSINESS
AS TENDING TOWARD ATTAINING MONOPOLY.  SEE UNITED STATES V. UNITED SHOE
MACHINERY CO., 247 U.S. 32, 44-55; UNITED STATES V. ALUMINUM CO. OF
AMERICA, 148 F.2D 416, 427-31; UNITED STATES V. AMERICAN TOBACCO CO.,
221 U.S. 106, 181-83; UNITED STATES V. UNITED STATES STEEL CORP., 251
U.S. 417, 451.  WE ARE NOT DEALING WITH A CHARGE OF MONOPOLY OR
RESTRAINT BECAUSE OF THE AGGREGATION OF PATENTS, BY POOLING OR
PURCHASE, BY AN OWNER OR OWNERS, IN A SINGLE INDUSTRY OR FIELD.  SEE
UNITED STATES V. UNITED SHOE MACHINERY CO., 247 U.S. 32.  WITHIN THE
LIMITS OF THE PATENTEE'S RIGHTS UNDER HIS PATENT, MONOPOLY OF THE
PROCESS OR PRODUCT BY HIM IS AUTHORIZED BY THE PATENT STATUTES.  IT IS
STIPULATED BY THE UNITED STATES THAT THE VALIDITY OF THE PATENTS IS NOT
IN ISSUE.  WITH THESE POINTS LAID ASIDE, WE PROCEED TO THE ISSUES
PRESENTED BY THIS RECORD. 

                III.  THE DETERMINATION OF THE ISSUE. 

UNDER THE ABOVE-MENTIONED ASSUMPTION AS TO GENERAL ELECTRIC, THE
ULTIMATE QUESTION FOR OUR DECISION ON THIS APPEAL MAY BE STATED,
SUCCINCTLY AND ABSTRACTLY, TO BE AS TO WHETHER IN THE LIGHT OF THE
PROHIBITION OF SEC. 1 OF THE SHERMAN ACT, NOTE 1, SUPRA, TWO OR MORE
PATENTEES IN THE SAME PATENT FIELD MAY LEGALLY COMBINE THEIR VALID
PATENT MONOPOLIES TO SECURE MUTUAL BENEFITS FOR THEMSELVES THROUGH
CONTRACTUAL AGREEMENTS, BETWEEN THEMSELVES AND OTHER LICENSEES, FOR
CONTROL OF THE SALE PRICE OF THE PATENTED DEVICES. 

THE APPELLEES URGE THAT THE FINDINGS OF THE DISTRICT COURT, QUOTED IN
NOTE 13 SUPRA, STAND AS BARRIERS TO A CONCLUSION HERE THAT SEC. 1 OF
THE SHERMAN ACT HAS BEEN VIOLATED BY THE LICENSES.  SINCE THERE WAS
MATERIAL EVIDENCE TO SUPPORT THE DISTRICT COURT'S FINDING OF THE
EVIDENTIARY FACTS AND THE COURT NECESSARILY WEIGHED THE CREDIBILITY OF
THE WITNESSES AND THE PROBATIVE VALUE OF THEIR TESTIMONY TO ESTABLISH
APPELLEES' CONTENTIONS, APPELLEES INSIST THAT THE INFERENCES OR
CONCLUSIONS AS TO VIOLATIONS OF THE SHERMAN ACT, DRAWN BY THE DISTRICT
COURT, MUST BE ACCEPTED BY US.  FN19 AS TO THE EVIDENTIARY FACTS
HERETOFORE STATED, THERE IS NO DISPUTE.  FROM THEM THE DISTRICT COURT
MADE FINDINGS OF FACT NOS. 32 TO 36, INCLUSIVE, HEREINBEFORE SET OUT IN
NOTE 13.  EVEN THOUGH WE ACCEPT, AS WE DO, THESE FINDINGS ON
PRELIMINARY FACTS AS CORRECT, THE LAST SENTENCE IN FINDINGS 32 AND 34
CRUMBLES THEIR ASSERTED BAR TO AN EXAMINATION BY US AS TO WHETHER THE
AGREEMENTS ARE VIOLATIVE OF THE SHERMAN ACT.  THOSE SENTENCES ARE TO
THE EFFECT THAT THERE WAS AN AGREEMENT TO FIX PRICES BETWEEN ALL
PARTIES IN THE LANGUAGE OF THE CONTRACTS AS SET OUT IN NOTES 8 AND 9
SUPRA.  IF THE PATENT RIGHTS DO NOT EMPOWER THE PATENTEES TO FIX SALE
PRICES FOR OTHERS, THE AGREEMENTS DO VIOLATE THE ACT.  THE PREVIOUS
SUMMARY IN THIS OPINION OF THE AGREEMENTS WHICH COMPOSE THESE
ARRANGEMENTS DEMONSTRATES THAT THE AGREEMENTS WERE INTENDED TO AND DID
FIX PRICES ON THE PATENTED DEVICES.  COMPARE INTERSTATE CIRCUIT V.
UNITED STATES, 306 U.S. 208, 226.  WHILE LINE'S SUBLICENSES TO OTHERS
THAN GENERAL ELECTRIC, NOTE 9, GAVE TO LINE THE POWER WHICH IT
EXERCISED TO FIX PRICES ONLY FOR DEVICES EMBODYING ITS OWN SCHULTZ
PATENT, THE SUBLICENSE AGREEMENTS LICENSED THE USE OF THE DOMINANT
LEMMON PATENT.  AS THE SCHULTZ PATENT COULD NOT BE PRACTICED WITHOUT
THE LEMMON, THE RESULT OF THE AGREEMENT BETWEEN SOUTHERN AND LINE FOR
LINE'S SUBLICENSING OF THE LEMMON PATENT WAS TO COMBINE IN LINE'S HANDS
THE AUTHORITY TO FIX THE PRICES OF THE COMMERCIALLY SUCCESSFUL DEVICES
EMBODYING BOTH THE SCHULTZ AND LEMMON PATENTS.  THUS, THOUGH THE
SUBLICENSES IN TERMS FOLLOWED THE PATTERN OF GENERAL ELECTRIC IN FIXING
PRICES ONLY ON LINE'S OWN PATENTS, THE ADDITIONAL RIGHT GIVEN TO LINE
BY THE LICENSE AGREEMENT OF JANUARY 12, 1940, BETWEEN SOUTHERN AND
LINE, TO BE THE EXCLUSIVE LICENSOR OF THE DOMINANT LEMMON PATENT, MADE
ITS PRICE FIXING OF ITS OWN SCHULTZ DEVICES EFFECTIVE OVER DEVICES
EMBODYING ALSO THE NECESSARY LEMMON PATENT.  SEE NOTE 9.  BY THE
PATENTEES' AGREEMENT THE DOMINANT LEMMON AND THE SUBSERVIENT SCHULTZ
PATENTS WERE COMBINED TO FIX PRICES.  IN THE ABSENCE OF PATENT OR OTHER
STATUTORY  FN20 AUTHORIZATION, A CONTRACT TO FIX OR MAINTAIN PRICES IN
INTERSTATE COMMERCE HAS LONG BEEN RECOGNIZED AS ILLEGAL PER SE UNDER
THE SHERMAN ACT.  FN21  THIS IS TRUE WHETHER THE FIXED PRICE IS
REASONABLE OR UNREASONABLE.  IT IS ALSO TRUE WHETHER IT IS A PRICE
AGREEMENT BETWEEN PRODUCERS FOR SALE OR BETWEEN PRODUCER AND
DISTRIBUTOR FOR RESALE. 

IT IS EQUALLY WELL SETTLED THAT THE POSSESSION OF A VALID PATENT OR
PATENTS DOES NOT GIVE THE PATENTEE ANY EXEMPTION FROM THE PROVISIONS OF
THE SHERMAN ACT BEYOND THE LIMITS OF THE PATENT MONOPOLY.  FN22  BY
AGGREGATING PATENTS IN ONE CONTROL, THE HOLDER OF THE PATENTS CANNOT
ESCAPE THE PROHIBITIONS OF THE SHERMAN ACT.  SEE STANDARD SANITARY MFG.
CO. V. UNITED STATES, 226 U.S. 20; UNITED STATES V. UNITED STATES
GYPSUM CO., POST, P. 364.  DURING ITS TERM, A VALID PATENT EXCLUDES ALL
EXCEPT ITS OWNER FROM THE USE OF THE PROTECTED PROCESS OR PRODUCT. 
UNITED STATES V. UNITED SHOE MACHINERY CO., 247 U.S. 32, 58; SPECIAL
EQUIPMENT CO. V. COE, 324 U.S. 370, 378.  THIS MONOPOLY MAY BE ENJOYED
EXCLUSIVELY BY THE PATENTEE OR HE MAY ASSIGN THE PATENT "OR ANY
INTEREST THEREIN" TO OTHERS.  REV. STAT. SEC. 4898, AS AMENDED 55 STAT.
634.  AS WE HAVE POINTED OUT, A PATENTEE MAY LICENSE OTHERS TO MAKE AND
VEND HIS INVENTION AND COLLECT A ROYALTY THEREFOR.  THUS WE HAVE A
STATUTORY MONOPOLY BY THE PATENT AND BY THE SHERMAN ACT A PROHIBITION,
NOT ONLY OF MONOPOLY OR ATTEMPT TO MONOPOLIZE, BUT OF EVERY AGREEMENT
IN RESTRAINT OF TRADE.  PUBLIC POLICY HAS CONDEMNED MONOPOLIES FOR
CENTURIES.  THE CASE OF MONOPOLIES, DARCY V. ALLEIN, 11 CO. REP. 84-B.
SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416, 428-49. 
SEE EMPLOYMENT ACT OF 1946, SEC. 2, 60 STAT. 23.  OUR CONSTITUTION
ALLOWS PATENTS.  ART. I, SEC. 8, CL. 8.  THE PROGRESS OF OUR ECONOMY
HAS OFTEN BEEN SAID TO OWE MUCH TO THE STIMULUS TO INVENTION GIVEN BY
THE REWARDS ALLOWED BY PATENT LEGISLATION.  THE SHERMAN ACT WAS ENACTED
TO PREVENT RESTRAINTS OF COMMERCE BUT HAS BEEN INTERPRETED AS
RECOGNIZING THAT PATENT GRANTS WERE AN EXCEPTION.  BEMENT V. NATIONAL
HARROW CO., SUPRA, 92, 21 CONG. REC. 2457.  PUBLIC SERVICE
ORGANIZATIONS, GOVERNMENTAL AND PRIVATE, ASIDE, OUR ECONOMY IS BUILT
LARGELY UPON COMPETITION IN QUALITY AND PRICES.  ASSOCIATED PRESS V.
UNITED STATES, 326 U.S. 1, 12-14.  VALIDATION BY CONGRESS OF AGREEMENTS
TO EXCLUDE COMPETITION IS UNUSUAL.  FN23  MONOPOLY IS A PROTEAN THREAT
TO FAIR PRICES.  IT IS A TANTALIZING OBJECTIVE TO ANY BUSINESS
COMPELLED TO MEET THE EFFORTS OF COMPETITORS TO SUPPLY THE MARKET. 
PERHAPS NO SINGLE FACT MANIFESTS THE POWER AND WILL TO MONOPOLIZE MORE
THAN PRICE CONTROL OF THE ARTICLE MONOPOLIZED.  THERE CAN BE NO CLEARER
EVIDENCE OF RESTRAINT OF TRADE.  WHATEVER MAY BE THE EVIL SOCIAL EFFECT
OF CUTTHROAT COMPETITION ON PRODUCERS AND CONSUMERS THROUGH THE
LOWERING OF LABOR STANDARDS AND THE QUALITY OF THE PRODUCE AND THE
OBLITERATION OF THE MARGINAL TO THE BENEFIT OF THE SURVIVING AND LOW
COST PRODUCERS, THE ADVANTAGES OF COMPETITION IN OPENING REWARDS TO
MANAGEMENT, IN ENCOURAGING INITIATIVE, IN GIVING LABOR IN EACH INDUSTRY
AN OPPORTUNITY TO CHOOSE EMPLOYMENT CONDITIONS AND CONSUMERS A
SELECTION OF PRODUCT AND PRICE, HAVE BEEN CONSIDERED TO OVERBALANCE THE
DISADVANTAGES.  THE STRENGTH OF SIZE ALONE, THE DISAPPEARANCE OF SMALL
BUSINESS ARE EVER-PRESENT DANGERS IN COMPETITION.  DESPITE POSSIBLE
ADVANTAGES TO A STABLE ECONOMY FROM EFFICIENT CARTELS WITH FIRM OR
FIXED PRICES FOR PRODUCTS, IT IS CRYSTAL CLEAR FROM THE LEGISLATIVE
HISTORY AND ACCEPTED JUDICIAL INTERPRETATIONS OF THE SHERMAN ACT THAT
COMPETITION ON PRICES IS THE RULE OF CONGRESSIONAL PURPOSE AND THAT,
WHERE EXCEPTIONS ARE MADE, CONGRESS SHOULD MAKE THEM.  THE MONOPOLY
GRANTED BY THE PATENT LAWS IS A STATUTORY EXCEPTION TO THIS FREEDOM FOR
COMPETITION AND CONSISTENTLY HAS BEEN CONSTRUED AS LIMITED TO THE
PATENT GRANT.  ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436,
452, 455; UNITED STATES V. UNIVIS LENS CO., 316 U.S. 241; HARTFORD
EMPIRE CO. V. UNITED STATES, 323 U.S. 386.  IT IS NOT THE MONOPOLY OF
THE PATENT THAT IS INVALID.  IT IS THE IMPROPER USE OF THAT MONOPOLY. 
THE DEVELOPMENT OF PATENTS BY SEPARATE CORPORATIONS OR BY COOPERATING
UNITS OF AN INDUSTRY THROUGH AN ORGANIZED RESEARCH GROUP IS A WELL
KNOWN PHENOMENON.  HOWEVER FAR ADVANCED OVER THE LONE INVENTOR'S
EXPERIMENTATION THIS METHOD OF SEEKING IMPROVEMENT IN THE PRACTICES OF
THE ARTS AND SCIENCES MAY BE, THERE CAN BE NO OBJECTION, ON THE SCORE
OF ILLEGALITY, EITHER TO THE MERE SIZE OF SUCH A GROUP OR THE
THOROUGHNESS OF ITS RESEARCH.  IT MAY BE TRUE, AS CARLYLE SAID, THAT
"GENIUS IS AN INFINITE CAPACITY FOR TAKING PAINS."  CERTAINLY THE
DOCTRINE THAT CONTROL OF PRICES, OUTSIDE THE LIMITS OF A PATENT
MONOPOLY, VIOLATES THE SHERMAN ACT IS AS WELL UNDERSTOOD BY CONGRESS AS
BY ALL OTHER INTERESTED PARTIES. 

WE ARE THUS CALLED UPON TO MAKE AN ADJUSTMENT BETWEEN THE LAWFUL
RESTRAINT ON TRADE OF THE PATENT MONOPOLY AND THE ILLEGAL RESTRAINT
PROHIBITED BROADLY BY THE SHERMAN ACT.  THAT ADJUSTMENT HAS ALREADY
REACHED THE POINT, AS THE PRECEDENTS NOW STAND, THAT A PATENTEE MAY
VALIDLY LICENSE A COMPETITOR TO MAKE AND VEND WITH A PRICE LIMITATION
UNDER THE GENERAL ELECTRIC CASE AND THAT THE GRANT OF PATENT RIGHTS IS
THE LIMIT OF FREEDOM FROM COMPETITION UNDER THE CASES FIRST CITED AT
NOTE 22. 

WITH THE POSTULATES IN MIND THAT PRICE LIMITATIONS ON PATENTED
DEVICES BEYOND THE LIMITS OF A PATENT MONOPOLY VIOLATE THE SHERMAN ACT
AND THAT PATENT GRANTS ARE TO BE CONSTRUED STRICTLY, THE QUESTION OF
THE LEGAL EFFECT OF THE PRICE LIMITATIONS IN THESE AGREEMENTS MAY BE
READILY ANSWERED.  NOTHING IN THE PATENT STATUTE SPECIFICALLY GIVES A
RIGHT TO FIX THE PRICE AT WHICH A LICENSEE MAY VEND THE PATENTED
ARTICLE.  35 U.S.C. SECS. 40, 47.  WHILE THE GENERAL ELECTRIC CASE
HOLDS THAT A PATENTEE MAY, UNDER CERTAIN CONDITIONS, LAWFULLY CONTROL
THE PRICE THE LICENSEE OF HIS SEVERAL PATENTS MAY CHARGE FOR THE
PATENTED DEVICE, NO CASE OF THIS COURT HAS CONSTRUED THE PATENT AND
ANTI-MONOPOLY STATUTES TO PERMIT SEPARATE OWNERS OF SEPARATE PATENTS BY
CROSS-LICENSES OR OTHER ARRANGEMENTS TO FIX THE PRICES TO BE CHARGED BY
THEM AND THEIR LICENSEES FOR THEIR RESPECTIVE PRODUCTS.  WHERE TWO OR
MORE PATENTEES WITH COMPETITIVE, NON-INFRINGING PATENTS COMBINE THEM
AND FIX PRICES ON ALL DEVICES PRODUCED UNDER ANY OF THE PATENTS,
COMPETITION IS IMPEDED TO A GREATER DEGREE THAN WHERE A SINGLE PATENTEE
FIXES PRICES FOR HIS LICENSEES.  THE STRUGGLE FOR PROFIT IS LESS
ACUTE.  EVEN WHEN, AS HERE, THE DEVICES ARE NOT COMMERCIALLY
COMPETITIVE BECAUSE THE SUBSERVIENT PATENT CANNOT BE PRACTICED WITHOUT
CONSENT OF THE DOMINANT, THE STATEMENT HOLDS GOOD.  THE STIMULUS TO
SEEK COMPETITIVE INVENTIONS IS REDUCED BY THE MUTUALLY ADVANTAGEOUS
PRICE-FIXING ARRANGEMENT.  COMPARE, AS TO ACTS BY A SINGLE ENTITY AND
THOSE DONE IN COMBINATION WITH OTHERS, SWIFT & CO. V. UNITED STATES,
196 U.S. 375, 396; UNITED STATES V. READING CO., 226 U.S. 324, 357;
EASTERN STATES LUMBER DEALERS' ASSN. V. UNITED STATES, 234 U.S. 600;
BINDERUP V. PATHE EXCHANGE, 263 U.S. 291.  THE MERGING OF THE BENEFITS
OF PRICE FIXING UNDER THE PATENTS RESTRAINS TRADE IN VIOLATION OF THE
SHERMAN ACT IN THE SAME WAY AS WOULD THE FIXING OF PRICES BETWEEN
PRODUCERS OF NONPATENTABLE GOODS. 

IF THE OBJECTION IS MADE THAT A PRICE AGREEMENT BETWEEN A PATENTEE
AND A LICENSEE EQUALLY RESTRAINS TRADE, THE ANSWER IS NOT THAT THERE IS
NO RESTRAINT IN SUCH AN ARRANGEMENT BUT, WHEN THE VALIDITY OF THE
GENERAL ELECTRIC CASE IS ASSUMED, THAT REASONABLE RESTRAINT ACCORDS
WITH THE PATENT MONOPOLY GRANTED BY THE PATENT LAW.  WHERE A PATENTEE
UNDERTAKES TO EXPLOIT HIS PATENT BY PRICE FIXING THROUGH AGREEMENTS
WITH ANYONE, HE MUST GIVE CONSIDERATION TO THE LIMITATIONS OF THE
SHERMAN ACT ON SUCH ACTION.  THE PATENT STATUTES GIVE AN EXCLUSIVE
RIGHT TO THE PATENTEE TO MAKE, USE AND VEND AND TO ASSIGN ANY INTEREST
IN THIS MONOPOLY TO OTHERS.  THE GENERAL ELECTRIC CASE CONSTRUES THAT
AS GIVING A RIGHT TO A PATENTEE TO LICENSE ANOTHER TO MAKE AND VEND AT
A FIXED PRICE.  THERE IS NO SUGGESTION IN THE PATENT STATUTES OF
AUTHORITY TO COMBINE WITH OTHER PATENT OWNERS TO FIX PRICES ON ARTICLES
COVERED BY THE RESPECTIVE PATENTS.  AS THE SHERMAN ACT PROHIBITS
AGREEMENTS TO FIX PRICES, ANY ARRANGEMENT BETWEEN PATENTEES RUNS AFOUL
OF THAT PROHIBITION AND IS OUTSIDE THE PATENT MONOPOLY. 

WE TURN NOW TO THE SITUATION HERE PRESENTED OF AN AGREEMENT WHERE ONE
OF THE PATENTEES IS AUTHORIZED TO FIX PRICES UNDER THE PATENTS.  THE
ARGUMENT OF RESPONDENTS IS THAT IF A PATENTEE MAY CONTRACT WITH HIS
LICENSEE TO FIX PRICES, IT IS LOGICAL TO PERMIT ANY NUMBER OF PATENTEES
TO COMBINE THEIR PATENTS AND AUTHORIZE ONE PATENTEE TO FIX PRICES FOR
ANY NUMBER OF LICENSEES.  IN THIS PRESENT AGREEMENT SOUTHERN AND LINE
HAVE ENTERED INTO AN ARRANGEMENT BY WHICH LINE IS AUTHORIZED TO AND HAS
FIXED PRICES FOR DEVICES PRODUCED UNDER THE LEMMON AND SCHULTZ
PATENTS.  IT SEEMS TO US, HOWEVER, THAT SUCH ARGUMENT FAILS TO TAKE
INTO ACCOUNT THE CUMULATIVE EFFECT OF SUCH MULTIPLE AGREEMENTS IN
ESTABLISHING AN INTENTION TO RESTRAIN.  THE OBVIOUS PURPOSE AND EFFECT
OF THE AGREEMENT WAS TO ENABLE LINE TO FIX PRICES FOR THE PATENTED
DEVICES.  EVEN WHERE THE AGREEMENTS TO FIX PRICES ARE LIMITED TO A
SMALL NUMBER OF PATENTEES, WE ARE OF THE OPINION THAT IT CROSSES THE
BARRIER ERECTED BY THE SHERMAN ACT AGAINST RESTRAINT OF TRADE THOUGH
THE RESTRAINT IS BY PATENTEES AND THEIR LICENSEES. 

AS EARLY AS 1912, IN STANDARD SANITARY MFG. CO. V. UNITED STATES, 226
U.S. 20, THIS COURT UNANIMOUSLY CONDEMNED PRICE LIMITATION UNDER POOLED
FN24  PATENT LICENSES.  FN25  AS THE ARRANGEMENT WAS COUPLED WITH AN
AGREEMENT FOR LIMITATION ON JOBBERS' RESALE PRICES, THE CASE MAY BE
SAID TO BE INDECISIVE ON PATENT LICENSE AGREEMENTS FOR PRICE CONTROL OF
A PRODUCT WITHOUT THE JOBBER'S RESALE PROVISION.  NO SUCH DISTINCTION
APPEARS IN THE OPINION.  THIS COURT HAS NOT DEPARTED FROM THAT
CONDEMNATION OF PRICE FIXING.  EVEN IN STANDARD OIL CO. V. UNITED
STATES, 283 U.S. 163, WHERE AN ARRANGEMENT BY WHICH THE PATENTEES
POOLED THEIR OIL CRACKING PATENTS AND DIVIDED AMONG THEMSELVES
ROYALTIES FROM LICENSEES FIXED BY THE POOLING CONTRACTS WAS UPHELD, THE
THEORY WAS REITERATED THAT A PRICE LIMITATION FOR THE PRODUCT WAS
UNLAWFUL PER SE.  PP. 170, 173, 175.  OF COURSE, IF A PURPOSE OR PLAN
TO MONOPOLIZE OR RESTRAIN TRADE IS FOUND, THE ARRANGEMENT IS UNLAWFUL. 
P. 174.  THE GOVERNMENT'S CONTENTION IN THAT CASE THAT THE LIMITATION
ON ROYALTIES IN ITSELF VIOLATED THE SHERMAN ACT BY FIXING AN ELEMENT IN
THE PRICE WAS DISMISSED BECAUSE THE COURT WAS OF THE VIEW THAT
CONTROLLED ROYALTIES WERE EFFECTIVE AS PRICE REGULATORS ONLY WHEN THE
PATENTEES DOMINATED THE INDUSTRY.  P. 174.  THIS DOMINATION WAS THOUGHT
BY THIS COURT NOT TO HAVE BEEN PROVEN. 

WHEN A PLAN FOR THE PATENTEE TO FIX THE SALE PRICES OF PATENTED
SYNTHETIC HARDBOARD ON SALES MADE THROUGH FORMERLY COMPETING
MANUFACTURERS AND DISTRIBUTORS, DESIGNATED AS DEL CREDERE AGENTS, FN26
CAME BEFORE THIS COURT ON ALLEGATIONS THAT THE PLAN WAS IN VIOLATION OF
THE SHERMAN ACT, WE INVALIDATED THE SCHEME.  WE SAID THAT THE PATENTEE
COULD NOT USE ITS COMPETITOR'S SALES ORGANIZATION AS ITS OWN AGENTS SO
AS TO CONTROL PRICES.  THE PATENT MONOPOLY, UNDER SUCH CIRCUMSTANCES,
WE SAID, WAS EXHAUSTED ON DISPOSITION OF THE PRODUCT TO THE
DISTRIBUTOR.  WE REASONED THAT SUCH AN ARRANGEMENT WAS A RESTRICTION ON
OUR FREE ECONOMY, "A POWERFUL INDUCEMENT TO ABANDON COMPETITION," AND
THAT IT DEROGATED "FROM THE GENERAL LAW (AGAINST PRICE LIMITATION)
BEYOND THE NECESSARY REQUIREMENTS OF THE PATENT STATUTE."  UNITED
STATES V. MASONITE CORP., 316 U.S. 265, 281, 280. 

WE THINK THAT THIS GENERAL RULE AGAINST PRICE LIMITATION CLEARLY
APPLIES IN THE CIRCUMSTANCES OF THIS CASE.  EVEN IF A PATENTEE HAS A
RIGHT IN THE ABSENCE OF A PURPOSE TO RESTRAIN OR MONOPOLIZE TRADE, TO
FIX PRICES ON A LICENSEE'S SALE OF THE PATENTED PRODUCT IN ORDER TO
EXPLOIT PROPERLY HIS INVENTION OR INVENTIONS, WHEN PATENTEES JOIN IN AN
AGREEMENT AS HERE TO MAINTAIN PRICES ON THEIR SEVERAL PRODUCTS, THAT
AGREEMENT, HOWEVER ADVANTAGEOUS IT MAY BE TO STIMULATE THE BROADER USE
OF PATENTS, IS UNLAWFUL PER SE UNDER THE SHERMAN ACT.  IT IS MORE THAN
AN EXPLOITATION OF PATENTS.  THERE IS THE VICE THAT PATENTEES HAVE
COMBINED TO FIX PRICES ON PATENTED PRODUCTS.  IT IS NOT THE CROSS
LICENSING TO PROMOTE EFFICIENT PRODUCTION WHICH IS UNLAWFUL.  THERE IS
NOTHING UNLAWFUL IN THE REQUIREMENT THAT A LICENSEE SHOULD PAY A
ROYALTY TO COMPENSATE THE PATENTEE FOR THE INVENTION AND THE USE OF THE
PATENT.  THE UNLAWFUL ELEMENT IS THE USE OF THE CONTROL THAT SUCH CROSS
LICENSING GIVES TO FIX PRICES.  THE MERE FACT THAT A PATENTEE USES HIS
PATENT AS WHOLE OR PART CONSIDERATION IN A CONTRACT BY WHICH HE AND
ANOTHER OR OTHER PATENTEES IN THE SAME PATENT FIELD ARRANGE FOR THE
PRACTICE OF ANY PATENT INVOLVED IN SUCH A WAY THAT ROYALTIES OR OTHER
EARNINGS OR BENEFITS FROM THE PATENT OR PATENTS ARE SHARED AMONG THE
PATENTEES, PARTIES TO THE AGREEMENT, SUBJECTS THAT CONTRACT TO THE
PROHIBITIONS OF THE SHERMAN ACT WHENEVER THE SELLING PRICE, FOR THINGS
PRODUCED UNDER A PATENT INVOLVED, IS FIXED BY THE CONTRACT OR A LICENSE
AUTHORIZED BY THE CONTRACT.  LICENSEES UNDER THE CONTRACT WHO AS HERE
ENTER INTO LICENSE ARRANGEMENTS, WITH PRICE-FIXING PROVISIONS, WITH
KNOWLEDGE OF THE CONTRACT, ARE EQUALLY SUBJECT TO THE PROHIBITIONS. 

THE DECREE OF THE DISTRICT COURT IS REVERSED AND THE CASE IS REMANDED
FOR THE ENTRY OF AN APPROPRIATE DECREE IN ACCORDANCE WITH THIS
OPINION. 

FN1  26 STAT. 209, AS AMENDED BY 36 STAT. 1167: 

"SEC. 1.  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 HEREBY DECLARED TO BE
ILLEGAL.  ...  " 

"SEC. 4.  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.  ...  " 

FN2  THE NAMES OF APPELLEES AND THE ABBREVIATIONS HEREINAFTER USED AS
WELL AS THE PERCENTAGE OF PRODUCTION OF THE DROPOUT FUSE DEVICES
MANUFACTURED UNDER THE PATENTS ARE LISTED BELOW:

              APPELLEE                    ABBREVIATED TITLE
PERCENT 

GENERAL ELECTRIC CO. ...................GENERAL ELECTRIC ........
29.2 

LINE MATERIAL CO. ......................LINE ....................
25.4 

JAMES R. KEARNEY CORP. .................KEARNEY .................
18.9 

SOUTHERN STATES EQUIPMENT CORP. ........SOUTHERN ................
7.9 

WESTINGHOUSE ELECTRIC CORP. ............WESTINGHOUSE ............
5.3 

SCHWEITZER & CONRAD, INC. ..............SCHWEITZER & CONRAD .....
5.1 

RAILWAY & INDUSTRIAL ENGINEERING CO. ...RAILWAY .................
3.8 

W.N. MATTHEWS CORP. ....................MATTHEWS ................
2.0 PORCELAIN PRODUCTS CO. ...$LPORCELAIN ...$R1.5 

ROYAL ELECTRIC MFG. CO. ................ROYAL ...................
.5 

PACIFIC ELECTRIC MFG. CO. ..............PACIFIC .................
.2 

T. F. JOHNSON.  .........................JOHNSON .................
.2

   ----------

                        100.0 

ALL ARE CORPORATIONS OF VARIOUS STATES EXCEPT T. F. JOHNSON, DOING
BUSINESS AS JOHNSON MANUFACTURING COMPANY, ATLANTA, GEORGIA. 

FN3  THE CASE WAS ARGUED APRIL 29, 1947, AND AT OUR REQUEST REARGUED
NOVEMBER 12-13, 1947.  UNITED STATES V. UNITED STATES GYPSUM CO.,
DECIDED TODAY, POST, P. 364, CONSIDERS RELATED PHASES OF SHERMAN ACT
LEGISLATION. 

FN4  "  ...  THE LEMMON DEVICE CONSISTS ESSENTIALLY OF AN EXPULSION
TUBE SUPPORTED BY A DOUBLE JOINTED HINGE AT ITS LOWER END.  AS THE TUBE
MOVES INTO CLOSED CIRCUIT POSITION, THE HINGE IS LOCKED AND A LATCH
ENGAGES A TERMINAL ON TOP OF THE TUBE TO HOLD THE TUBE IN PLACE.  THE
HINGE IS RELEASED BY A RELATIVELY COMPLICATED AND EXPENSIVE SOLENOID
MECHANISM WHEN THE CURRENT BECOMES EXCESSIVE BECAUSE OF A SHORT CIRCUIT
OR OVERLOAD.  THEREUPON THE CIRCUIT IS BROKEN IN THE TUBE AND THE TUBE
DROPS DOWNWARDLY, ITS UPPER END DISENGAGING FROM THE LATCH, WHICH
PERMITS THE TUBE TO SWING OUT AND DOWN.  BY REASON OF CLAIMS COVERING
THE DOUBLE JOINTED HINGE CONSTRUCTION IN CUTOUTS, THIS PATENT DOMINATES
THE MANUFACTURE OF DROPOUT FUSE CUTOUTS INVOLVED IN THIS SUIT." 
FINDINGS OF FACT, NO. 6. 

FN5  "  ...  THE SCHULTZ PATENT COVERS A DROPOUT FUSE CUTOUT WHICH IS
AN IMPROVEMENT ON THE DEVICE DISCLOSED IN THE LEMMON PATENT, AND IS
DOMINATED BY THE LEMMON PATENT.  IN THE SCHULTZ STRUCTURE AN EXPULSION
TUBE IS SUPPORTED BY A DOUBLE JOINTED HINGE WHICH IS HELD RIGID BY A
FUSE LINK.  ON OVERLOAD, THE FUSE MELTS, BREAKING THE CIRCUIT IN THE
TUBE AND THE HINGE IS RELEASED AUTOMATICALLY, WHICH PERMITS THE TUBE TO
DROP DOWN AND THEN SWING OUTWARDLY.  THIS SCHULTZ DROPOUT FUSE IS MUCH
SIMPLER, AND CAN BE MANUFACTURED AT CONSIDERABLY LESS THAN THE COST OF
A COMPARABLE SOLENOID OPERATED CUTOUT, AND HAS MET WIDESPREAD
COMMERCIAL DEMAND AND USE."  FINDINGS OF FACT, NO. 7. 

FN6  SCHWEITZER & CONRAD, GENERAL ELECTRIC, WESTINGHOUSE, RAILWAY,
KEARNEY, MATTHEWS. 

FN7  "THE SOUTHERN CORPORATION GRANTS TO THE LINE COMPANY A FULLY PAID
LICENSE TO MAKE, USE AND SELL, WITH THE EXCLUSIVE RIGHT TO GRANT SUB
LICENSES TO OTHERS TO MAKE, USE AND SELL, EXPULSION TUBE ELECTRIC
CIRCUIT INTERRUPTING EQUIPMENT IN WHICH THE CIRCUIT INTERRUPTION IS
CAUSED BY THE THERMALLY INITIATED RUPTURING OF A CURRENT CARRYING
ELEMENT IN AN EXPULSION TUBE, COMING UNDER CLAIMS 3, 4 TO 10,
INCLUSIVE, 15 TO 22 INCLUSIVE, 25, AND 27 TO 30 OF THE PATENT TO G. N.
LEMMON, NO. 2,150,102, DATED MARCH 7, 1939, ENTITLED "CIRCUIT BREAKER"
AND/OR ANY DIVISION, CONTINUATION, SUBSTITUTE, RENEWAL AND/OR REISSUE
THEREOF."    FN8  "15.  THE LICENSES HEREBY GRANTED OR AGREED TO BE
GRANTED ARE ON THE EXPRESS CONDITION THAT THE PRICES, TERMS AND
CONDITIONS OF SALE OF THE SOUTHERN CORPORATION FOR ELECTRIC FUSE
EQUIPMENT MADE AND SOLD UNDER THE LICENSES HEREIN GRANTED SHALL, SO
LONG AS SUCH ELECTRIC FUSE EQUIPMENT CONTINUES TO BE COVERED BY LETTERS
PATENT OF THE LINE COMPANY UNDER WHICH A LICENSE IS GRANTED BY THIS
AGREEMENT, BE NOT MORE FAVORABLE TO THE CUSTOMER THAN THOSE ESTABLISHED
FROM TIME TO TIME AND FOLLOWED BY THE LINE COMPANY IN MAKING ITS
SALES. 

"IT IS THE PURPOSE AND INTENT OF THIS AGREEMENT THAT THERE SHALL NOT
BE DIRECTLY, OR INDIRECTLY, ANY MODIFICATION OF THE PRICES SET BY THE
LINE COMPANY AS THEY EXIST FROM TIME TO TIME, AS FOR INSTANCE, BY
INCLUDING IN THE TRANSACTION OTHER MATERIAL OR PARTS, OR LABOR, OR
SERVICES, AT LESS THAN THE REGULAR PRICES AT WHICH THE PARTY MAKING THE
SAME IS AT THE TIME SELLING SUCH OTHER MATERIAL OR PARTS OR FURNISHING
SUCH LABOR OR SERVICES OR BY MAKING ALLOWANCES FOR FREIGHT OR TERMS OF
PAYMENT OTHER THAN THOSE EMPLOYED BY THE LINE COMPANY. 

"PRICES, TERMS AND/OR CONDITIONS OF SALE MAY BE CHANGED BY THE LINE
COMPANY FROM TIME TO TIME THROUGH REASONABLE NOTICE IN WRITING TO THE
SOUTHERN CORPORATION, BUT NOT LESS THAN TEN (10) DAYS' WRITTEN NOTICE
SHALL BE GIVEN BEFORE THE CHANGE SHALL GO INTO EFFECT. 

"IT IS AGREED THAT IF THE LINE COMPANY SHALL GRANT A LICENSE TO A
THIRD PARTY UNDER ANY OF THE PATENTS OF THIS AGREEMENT (BUT EXCEPTING
FROM THE PROVISIONS OF THIS PARAGRAPH A LICENSE TO BE GRANTED TO
GENERAL ELECTRIC COMPANY OF SCHENECTADY, NEW YORK, UNDER SAID KYLE
REISSUE PATENT 19,449), WITHOUT A PROVISION FOR MAINTENANCE BY SAID
THIRD PARTY OF PRICES, TERMS AND CONDITIONS OF SALES AS SET FORTH IN
THE FIRST PARAGRAPH OF THIS SECTION, THEN SOUTHERN CORPORATION SHALL BE
RELIEVED FROM ITS OBLIGATION UNDER SAID SECTION." 

FN9 IN THE LINE-GENERAL ELECTRIC LICENSE AGREEMENT OF MARCH 15, 1940,
THE FIRST UNDER THE REVISED LINE-SOUTHERN CONTRACT, THE PRICE
MAINTENANCE PROVISION WAS AS FOLLOWS: 

"9.  THE LICENSE HEREBY GRANTED BY THE LICENSOR IS SUBJECT TO THE
EXPRESS LIMITATIONS THAT 

AS TO DROPOUT FUSE CUTOUTS MANUFACTURED AND SOLD BY LICENSEE WHICH
ARE COMPARABLE IN RESPECT TO GENERAL TYPE AND PURPOSE, AMPERE AND
VOLTAGE RATING, AND RUPTURING CAPACITY, TO DROPOUT FUSE CUTOUTS
MANUFACTURED AND SOLD BY LICENSOR, 

LICENSEE'S PRICES, TERMS AND CONDITIONS OF SALE OF DROPOUT FUSE
CUTOUTS 

FOR USE IN THE UNITED STATES MADE UNDER THE LICENSE HEREIN GRANTED TO
LICENSEE UNDER THE AFORESAID LETTERS PATENT, LEMMON NO. 2,150,102, AND
SCHULTZ AND STEINMAYER NO. 2,176,227, AND AS LONG AS SUCH DROPOUT FUSE
CUTOUTS CONTINUE TO BE COVERED BY SUCH LETTERS PATENT, 

SHALL BE NO MORE FAVORABLE TO A CUSTOMER OF THE LICENSEE THAN THOSE
ESTABLISHED FROM TIME TO TIME AND FOLLOWED BY THE LICENSOR IN ITS
SALES.  THE PRICES, TERMS AND CONDITIONS OF SALE AS AT PRESENT
ESTABLISHED AND IN FORCE ARE THOSE SET FORTH IN SCHEDULE A ANNEXED
HERETO AND FORMING A PART HEREOF.  THIS SCHEDULE OF PRICES MAY BE
CHANGED FROM TIME TO TIME BY THE LICENSOR UPON TEN (10) DAYS' NOTICE IN
WRITING TO THE LICENSEE. 

"10.  THE SPIRIT AND INTENT OF THIS LICENSE AGREEMENT, CONTEMPLATES
THAT IN NO TRANSACTION SHALL THERE BE ANY MODIFICATION OF LICENSEE'S
PRICES, EITHER DIRECTLY OR INDIRECTLY, AS FOR INSTANCE BY INCLUSION IN
THE TRANSACTION OF OTHER MATERIAL OR PARTS OR SERVICES OR LABOR AT LESS
THAN THE REGULAR PREVAILING PRICES AT WHICH THE PARTY MAKING THE SALE
IS AT THE TIME ACCUSTOMED TO SELL SUCH OTHER MATERIAL OR PARTS OR
FURNISH SUCH SERVICES OR LABOR, AS WILL SERVE IN EFFECT TO REDUCE
LICENSEE'S PRICES BELOW THOSE NAMED IN SCHEDULE A AS IT EXISTS FROM
TIME TO TIME." 

THIS WAS REPEATED IN THE LINE-GENERAL ELECTRIC REVISED AGREEMENT OF
NOVEMBER 17, 1941.  A VARIABLE APPEARS IN THE WESTINGHOUSE AND OTHER
LICENSES.  IN ITS PRICE PROVISIONS, THE LEMMON PATENT IS NOT MENTIONED
BUT THE LEMMON PATENT WAS INCLUDED IN ITS GRANT OF LICENSE AND THE
SUBSIDIARY SCHULTZ PATENT COULD NOT BE PRACTICED WITHOUT THE RIGHT TO
USE THE DOMINANT LEMMON. 

FN10  THESE TWO PRODUCED AN AGGREGATE OF LESS THAN ONE PERCENT OF THE
DEVICES. 

FN11  ALL APPELLEES, EXCEPT ROYAL, PACIFIC AND JOHNSON, ATTENDED ONE
OR ANOTHER OF THESE CONFERENCES.  WE DO NOT FIND IT NECESSARY TO
DETERMINE WHETHER OR NOT THE SELLING PRICES ALSO OF THE LICENSEES WERE
BEFORE THE CONFERENCE.  THE AGREEMENTS ADEQUATELY SHOW AN INTENTION TO
FIX PRICES. 

FN12  THE LICENSES CONTAINED PROVISIONS FOR RECORDS OF SALE,
INSPECTION THEREOF AND CANCELLATION OF THE LICENSE FOR BREACH. 

FN13  FINDINGS OF FACT: 

"32.  THE PRICE LIMITATION PROVISIONS CONTAINED IN THE VARIOUS
LICENSE AGREEMENTS HERE IN EVIDENCE WERE INSISTED UPON BY THE PATENT
OWNER AND WERE INTENDED AND REASONABLY ADAPTED TO PROTECT ITS OWN
BUSINESS AND SECURE PECUNIARY REWARD FOR THE PATENTEE'S MONOPOLY.  EACH
OF THE LICENSES GRANTED TO THE LICENSEE-DEFENDANTS WAS TAKEN AND
GRANTED IN GOOD FAITH, THE PARTIES TO THE LICENSES BELIEVING A LICENSE
UNDER THE PATENTS TO BE NECESSARY IN ORDER THAT THE LICENSEE COULD
CONTINUE LAWFULLY TO MANUFACTURE AND SELL ITS DROPOUT FUSE CUTOUTS. 
APART FROM THE WRITTEN LICENSE AGREEMENTS HERE IN EVIDENCE, THERE WAS
NO AGREEMENT, EXPRESS OR IMPLIED, BETWEEN THE LICENSOR AND ANY
LICENSEE, OR BETWEEN ANY TWO OR MORE LICENSEES, WITH RESPECT TO THE
PRICES OF LICENSED DROPOUT FUSE CUTOUTS. 

"33.  ALL OF THE DEVICES FOR WHICH MINIMUM PRICES WERE ESTABLISHED BY
LINE WERE COMPARABLE TO, AND COMPETITIVE WITH, DEVICES WHICH LINE
MANUFACTURED AND SOLD REGULARLY OR WHICH IT WAS READY TO MANUFACTURE
AND SELL TO ITS CUSTOMERS ON SPECIAL ORDER. 

"34.  THE CROSS-LICENSE AGREEMENTS BETWEEN LINE AND SOUTHERN WERE
LIMITED TO THE COMMERCIALLY PRACTICABLE DEVICE COVERED BY THE
SUBSERVIENT SCHULTZ PATENT, AND DID NOT CREATE ADDITIONAL POWER FOR
PRICE CONTROL OF THE LICENSED CUTOUTS OVER THAT WHICH EACH HAD BEFORE
ENTERING INTO THE AGREEMENTS.  THE INFLEXIBLE INTENTION TO INSIST UPON
PRICE LIMITATION EXISTED INDEPENDENTLY IN EACH OF THE PATENT OWNERS
PRIOR TO ANY DISCUSSIONS OR ARRANGEMENTS BETWEEN THEM.  SUCH CROSS
LICENSE AGREEMENTS WERE ENTERED INTO IN GOOD FAITH, NOT FOR THE PURPOSE
OF FIXING PRICES IN THE INDUSTRY BUT TO PERMIT THE MANUFACTURE AND SALE
OF THE CHEAPER DEVICE COVERED BY THE SUBSERVIENT PATENT, TO FACILITATE
THE NEGOTIATION OF LICENSES, AND TO PROVIDE ROYALTY INCOME.  THERE WAS
NO AGREEMENT, EXPRESS OR IMPLIED, BETWEEN LINE AND SOUTHERN WITH
RESPECT TO PRICES ON CUTOUTS OTHER THAN THE WRITTEN CROSS-LICENSE
AGREEMENTS. 

"35.  THE LICENSE AGREEMENTS HERE IN EVIDENCE DID NOT RESTRAIN TRADE
BUT PROMOTED IT BY MAKING AVAILABLE SEVERAL SOURCES WHERE THE PATENTED
DEVICES COULD BE OBTAINED, THUS INCREASING COMPETITION IN SUCH DEVICES,
PARTICULARLY WITH RESPECT TO DESIGN, QUALITY AND SERVICE.  COMPETITION
AMONG THE DEFENDANTS FOR BUSINESS IN THESE DEVICES CONTINUED TO BE
VIGOROUS AFTER THE MAKING OF THE LICENSE AGREEMENTS. 

"36.  THERE WAS NO COMBINATION OR CONSPIRACY AMONG THE DEFENDANTS, OR
ANY OF THEM, TO FIX, MAINTAIN OR CONTROL PRICES OF DROPOUT FUSE CUTOUTS
OR PARTS THEREOF, OR TO RESTRAIN TRADE OR COMMERCE THEREIN." 

FN14  FOR ILLUSTRATION AND WITHOUT IMPLICATION AS TO THIS COURT'S
POSITION ON THE ISSUES, WE CALL ATTENTION TO THE FOLLOWING: 

BARBER-COLMAN CO. V. NATIONAL TOOL CO., 136 F.2D 339.  IN A SUIT BY
THE LICENSOR AGAINST THE LICENSEE, INJUNCTIVE RELIEF TO COMPEL
COMPLIANCE WITH A PRICE-FIXING PROVISION IN THE PATENT LICENSE WAS
DENIED.  THE GENERAL ELECTRIC CASE WAS HELD NOT TO PERMIT THE PATENTEE
TO FIX PRICES ON UNPATENTED HOBS WHICH WERE PRODUCED UNDER A PROCESS
PATENT BY A PATENTED MACHINE. 

CUMMER-GRAHAM CO. V. STRAIGHT SIDE BASKET CORP., 142 F.2D 646. 
LICENSEE WAS DENIED RELIEF IN AN ACTION AGAINST LICENSOR FOR FAILING TO
REQUIRE OTHER LICENSEES TO COMPLY WITH PRICE-FIXING PROVISIONS;
LICENSOR OF A PATENT ON AN ATTACHMENT TO A BASKET-MAKING MACHINE MAY
NOT FIX PRICES ON BASKETS PRODUCED BY THE MACHINE. 

UNITED STATES V. VEHICULAR PARKING, LTD., 54 F.SUPP.  828.  ANTITRUST
PROCEEDING AGAINST PATENT HOLDING COMPANY AND MANUFACTURING LICENSEES
IN PARKING METER INDUSTRY.  THE PATENT LICENSES FIXED THE PRICES AT
WHICH PARKING METERS COULD BE SOLD AND CONTAINED RESTRICTIVE PROVISIONS
ON MARKETING PRACTICES.  IN ORDERING COMPULSORY LICENSING AT A
REASONABLE ROYALTY, THE COURT DISTINGUISHED THE GENERAL ELECTRIC CASE
PRINCIPALLY ON THE GROUND THAT THE PATENTEE IN THIS CASE DID NOT ITSELF
MANUFACTURE THE PARKING METERS; OTHER DISTINCTIONS NOTED WERE THE
NUMBER AND ACTIVE CONCERT OF LICENSEES, THE WEAKNESS OF THE PATENTS,
THE FIXING OF PRICES ON UNPATENTED ARTICLES, AND THE EXISTENCE OF
MARKETING RESTRICTIONS. 

FN15  FOR EXAMPLE, SUCH PRICE ARRANGEMENTS UNDER THE TYPE OF
AGREEMENT INDICATED ARE IN LITIGATION AS FOLLOWS: 

UNITED STATES V. ALLEGHENY LUDLUM STEEL CORP., D.N.J. CIVIL 45-83,
STAINLESS STEEL COMPANY OWNING PATENTS ON A PARTICULAR TYPE OF
STAINLESS STEEL ALLEGEDLY ISSUED LICENSES FIXING PRICES ON ALL TYPES OF
STAINLESS STEEL. 

UNITED STATES V. AMERICAN OPTICAL CO., S.D.N.Y. CIVIL 10-391, OPTICAL
PATENTS OWNED BY PATENT HOLDING COMPANY WHICH GAVE EXCLUSIVE LICENSES;
EXCLUSIVE LICENSEE SUBLICENSED TO OTHER MANUFACTURERS WHO AGREED TO
MAINTAIN PRICES AND COMPLY WITH MARKETING RESTRICTIONS. 

UNITED STATES V. BAUSCH & LOMB OPTICAL CO., S.D.N.Y. CIVIL 10-394,
PATENT HOLDING COMPANY ISSUED LICENSES TO TWO LICENSEES TO MANUFACTURE
BIFOCAL LENSES, THE LICENSES FIXING PRICES AT WHICH THE BIFOCAL LENSES
WERE TO BE SOLD AND THE SELECTION OF WHOLESALERS AND RETAILERS FOR THE
LENSES. 

UNITED STATES V. CATALIN CORPORATION OF AMERICA, D.N.J. CIVIL 7743,
MANUFACTURER OF PHENOLIC RESINS LICENSED OTHER MANUFACTURERS UNDER ITS
PROCESS PATENTS, THE LICENSEES AGREEING TO SELL AT PRICES ESTABLISHED
BY THE LICENSOR. 

UNITED STATES V. GENERAL CABLE CORP., S.D.N.Y. CIVIL 40-76, CROSS
LICENSES AMONG HOLDERS OF PATENTS ON FLUID FILLED CABLE, THE LICENSEES
AGREEING TO ADHERE TO UNIFORM PRICES AND TO OBSERVE TERRITORIAL
MARKETING LIMITATIONS. 

UNITED STATES V. GENERAL ELECTRIC CO., D.N.J. CIVIL 1364, CROSS
LICENSING AGREEMENTS BETWEEN MANUFACTURERS OF ELECTRICAL BULBS
PROVIDING FOR PRICE AND QUANTITATIVE RESTRICTIONS. 

UNITED STATES V. GENERAL ELECTRIC CO., FRIED.  KRUPP, S.D.N.Y. CR.
110-412, CROSS-LICENSING OF TUNGSTEN CARBIDE PATENTS WITH PRICE AND
TERRITORIAL RESTRICTIONS. 

UNITED STATES V. GENERAL INSTRUMENT CORP., D.N.J. CR. 3960-C, CIVIL
8586, OWNERS OF VARIABLE CONDENSER PATENTS ASSIGNED PATENTS TO HOLDING
COMPANY AND TOOK BACK LICENSES WITH PRICE-FIXING PROVISIONS; EXPLICIT
PRICE-FIXING PROVISIONS SUBSEQUENTLY REMOVED BUT ALLEGEDLY CONTINUED BY
TACIT AGREEMENT. 

UNITED STATES V. PHILLIPS SCREW CO., N.D. ILL. CIVIL 47-C-147, HOLDER
OF PATENTS ON CROSS RECESSED HEAD SCREWS GRANTED EXCLUSIVE LICENSE TO
LEADING SCREW MANUFACTURER WHO SUBLICENSED TO OTHER MANUFACTURERS;
PATENT HOLDER, EXCLUSIVE LICENSEE, AND SUBLICENSEES AGREED ON PRICE
TERMS FOR ALL SCREWS PRODUCED. 

FN16  THE UNITED STATES LISTS:  UNCERTAINTY AS TO THE NATURE OF THE
PATENT, PROCESS OR PRODUCT, WHICH JUSTIFIES PRICE CONTROL; EXTENT OF
PATENT DOMINATION OVER THE DEVICE; MAY A PATENT POOLING CORPORATION
CONTROL ALL LICENSEES' SALE PRICES; EXTENT OF PRICE CONTROL IN AN
INDUSTRY.  U.S. BRIEF 65 ET SEQ. 

FN17  IN EARLIER CASES INVOLVING THE NATIONAL HARROW COMPANY THE
LOWER COURTS HELD THAT AN INDUSTRY-WIDE COMBINATION TO FIX PRICES WAS
ILLEGAL.  NATIONAL HARROW CO. V. HENCH, 83 F. 36; NATIONAL HARROW CO.
V. QUICK, 67 F. 130, AFFIRMED ON OTHER GROUNDS, 74 F. 236.  COMPARE
RUBBER TIRE WHEEL CO. V. MILWAUKEE RUBBER WORKS CO., 154 F. 358, AND
INDIANA MANUFACTURING CO. V. J.I. CASE THRESHING MACHINE CO., 154 F.
365, UPHOLDING INDUSTRY-WIDE PRICE FIXING, WITH BLOUNT MANUFACTURING
CO. V. YALE & TOWNE MANUFACTURING CO., 166 F. 555, HOLDING SUCH PRICE
FIXING ILLEGAL. 

FN18  BILLS HAVE BEEN INTRODUCED WHICH WOULD OUTLAW PRICE LIMITATION
IN PATENT LICENSES: H.R. 22345, 62D CONG., 2D SESS. (1912); S. 2730,
77TH CONG., 2D SESS. (1942); S. 2491, 77TH CONG., 2D SESS. (1942), AND
HEARINGS THEREON; H.R. 7713, 77TH CONG., 2D SESS. (1942); H.R. 109,
78TH CONG., 1ST SESS. (1943); H.R. 1371, 78TH CONG., 1ST SESS. (1943);
H.R. 3874, 78TH CONG., 1ST SESS. (1943); H.R. 97, 79TH CONG., 1ST SESS.
(1945); H.R. 3462, 79TH CONG., 1ST SESS. (1945); S. 2482, 79TH CONG.,
2D SESS. (1946); S. 72, 80TH CONG., 1ST SESS. (1947). 

SEE FINAL REPORT OF TEMPORARY NATIONAL ECONOMIC COMMITTEE, SEN. DOC.
NO. 35, 77TH CONG., 1ST SESS. (1941), P. 36; REPORT OF THE NATIONAL
PATENT PLANNING COMMISSION, H.R. DOC. NO. 239, 78TH CONG., 1ST SESS.
(1943), P. 9. 

FN19  RULES OF CIVIL PROCEDURE, RULE 52: 

FINDINGS BY THE COURT.  - "(A)  EFFECT.  IN ALL ACTIONS TRIED UPON
THE FACTS WITHOUT A JURY, THE COURT SHALL FIND THE FACTS SPECIALLY AND
STATE SEPARATELY ITS CONCLUSIONS OF LAW THEREON AND DIRECT THE ENTRY OF
THE APPROPRIATE JUDGMENT; AND IN GRANTING OR REFUSING INTERLOCUTORY
INJUNCTIONS THE COURT SHALL SIMILARLY SET FORTH THE FINDINGS OF FACT
AND CONCLUSIONS OF LAW WHICH CONSTITUTE THE GROUNDS OF ITS ACTION. 
REQUESTS FOR FINDINGS ARE NOT NECESSARY FOR PURPOSES OF REVIEW. 
FINDINGS OF FACT SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, AND
DUE REGARD SHALL BE GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO
JUDGE OF THE CREDIBILITY OF THE WITNESSES.  THE FINDINGS OF A MASTER,
TO THE EXTENT THAT THE COURT ADOPTS THEM, SHALL BE CONSIDERED AS THE
FINDINGS OF THE COURT."    FN20  E.G., MILLER-TYDINGS ACT, 50 STAT.
693. 

FN21  DR. MILES MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373; BOSTON
STORE V. AMERICAN GRAPHOPHONE CO., 246 U.S. 8; UNITED STATES V. UNITED
SHOE MACHINERY CO., 247 U.S. 32, 58; UNITED STATES V. TRENTON POTTERIES
CO., 273 U.S. 392; UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S.
150, 222-24; UNITED STATES V. UNIVIS LENS CO., 316 U.S. 241, 250; SOLA
ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S. 173; KATZINGER CO. V.
CHICAGO MFG. CO., 329 U.S. 394. 

APPALACHIAN COALS V. UNITED STATES, 288 U.S. 344, CANNOT BE CITED TO
SUPPORT A CONTRARY VIEW.  IN THAT CASE, THIS COURT HELD THAT "THE PLAN
CANNOT BE SAID EITHER TO CONTEMPLATE OR INVOLVE THE FIXING OF MARKET
PRICES."  P. 373.  SEE THE SOCONY-VACUUM CASE, SUPRA, 214 ET SEQ.
PERHAPS ARBITRARY OR MONOPOLY PRICES WERE IN MIND IN APPALACHIAN.  PP.
358, 359, 365, 371. 

FN22  UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319; HARTFORD
EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 406; STANDARD OIL CO. V.
UNITED STATES, 283 U.S. AT 169 AND CASES CITED; STANDARD SANITARY MFG.
CO. V. UNITED STATES, 226 U.S. 20, 48-49.  SEE TRANSPARENT-WRAP MACHINE
CORP. V. STOKES & SMITH CO., 329 U.S. 637, 641, 647, AND CASES CITED. 

FN23  THE INTERSTATE COMMERCE ACT AUTHORIZES CARRIERS TO POOL
REVENUES AND AUTHORIZES MERGERS OF CARRIERS, PROVIDED THAT APPROVAL OF
THE INTERSTATE COMMERCE COMMISSION IS OBTAINED.  THE ANTITRUST LAWS ARE
INAPPLICABLE TO SUCH AGREEMENTS.  49 U.S.C. SEC. 5(1), (2) AND (11). 

FN24  THE WORDS "PATENT POOL" ARE NOT WORDS OF ART. THE EXPRESSION IS
USED IN THIS OPINION TO CONVEY THE IDEA OF A LINKING OF THE RIGHT TO
USE PATENTS ISSUED TO MORE THAN ONE PATENTEE. 

FN25  226 U.S. AT 48: 

"THE AGREEMENTS CLEARLY, THEREFORE, TRANSCENDED WHAT WAS NECESSARY TO
PROTECT THE USE OF THE PATENT OR THE MONOPOLY WHICH THE LAW CONFERRED
UPON IT.  THEY PASSED TO THE PURPOSE AND ACCOMPLISHED A RESTRAINT OF
TRADE CONDEMNED BY THE SHERMAN LAW.  IT HAD, THEREFORE, A PURPOSE AND
ACCOMPLISHED A RESULT NOT SHOWN IN THE BEMENT CASE.  THERE WAS A
CONTENTION IN THAT CASE THAT THE CONTRACT OF THE NATIONAL HARROW
COMPANY WITH BEMENT & SONS WAS PART OF A CONTRACT AND COMBINATION WITH
MANY OTHER COMPANIES AND CONSTITUTED A VIOLATION OF THE SHERMAN LAW,
BUT THE FACT WAS NOT ESTABLISHED AND THE CASE WAS TREATED AS ONE
BETWEEN THE PARTICULAR PARTIES, THE ONE GRANTING AND THE OTHER
RECEIVING A RIGHT TO USE A PATENTED ARTICLE WITH CONDITIONS SUITABLE TO
PROTECT SUCH USE AND SECURE ITS BENEFITS.  AND THERE IS NOTHING IN
HENRY V. A.B. DICK CO., 224 U.S. 1, WHICH CONTRAVENES THE VIEWS HEREIN
EXPRESSED." 

FN26  CF. UNITED STATES V. GENERAL ELECTRIC CO., SUPRA. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE MURPHY
AND MR. JUSTICE RUTLEDGE JOIN, CONCURRING. 

WHILE I HAVE JOINED IN THE OPINION OF THE COURT, ITS DISCUSSION OF
THE PROBLEM IS FOR ME NOT ADEQUATE FOR A FULL UNDERSTANDING OF THE
BASIC ISSUE PRESENTED.  MY VIEW COMES TO THIS - IT IS A PART OF
PRACTICAL WISDOM AND GOOD LAW NOT TO PERMIT UNITED STATES V. GENERAL
ELECTRIC CO., 272 U.S. 476, TO GOVERN THIS SITUATION, THOUGH IF ITS
PREMISE BE ACCEPTED, LOGIC MIGHT MAKE ITS APPLICATION TO THIS CASE
WHOLLY DEFENSIBLE.  BUT I WOULD BE RID OF UNITED STATES V. GENERAL
ELECTRIC CO. MY REASONS FOR OVERRULING IT START WITH THE CONSTITUTION
ITSELF. 

THE CONSTITUTION GRANTS CONGRESS THE POWER "TO PROMOTE THE PROGRESS
OF SCIENCE AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO AUTHORS
AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS AND
DISCOVERIES."  ART. I, SEC. 8, CL. 8.  IT IS TO BE NOTED FIRST THAT ALL
THAT IS SECURED TO INVENTORS IS "THE EXCLUSIVE RIGHT" TO THEIR
INVENTIONS; AND SECOND THAT THE REWARD TO INVENTORS IS WHOLLY
SECONDARY, THE AIM AND PURPOSE OF PATENT STATUTES BEING LIMITED BY THE
CONSTITUTION TO THE PROMOTION OF THE PROGRESS OF SCIENCE AND USEFUL
ARTS.  UNITED STATES V. MASONITE CORP., 316 U.S. 265, 278 AND CASES
CITED. 

CONGRESS, FAITHFUL TO THAT STANDARD, HAS GRANTED PATENTEES ONLY THE
"EXCLUSIVE RIGHT TO MAKE, USE, AND VEND THE INVENTION OR DISCOVERY." 
REV. STAT. SEC. 4884, 35 U.S.C. SEC. 40.  AND AS EARLY AS 1853 THE
COURT, SPEAKING THROUGH CHIEF JUSTICE TANEY, DEFINED THE NARROW AND
LIMITED MONOPOLY GRANTED UNDER THE STATUTES AS FOLLOWS:  "THE FRANCHISE
WHICH THE PATENT GRANTS, CONSISTS ALTOGETHER IN THE RIGHT TO EXCLUDE
EVERY ONE FROM MAKING, USING, OR VENDING THE THING PATENTED, WITHOUT
THE PERMISSION OF THE PATENTEE."  BLOOMER V. MCQUEWAN, 14 HOW.  539,
549.  BUT THE INGENUITY OF MAN HAS CONCEIVED MANY WAYS TO GRAFT
ATTRACTIVE PRIVATE PERQUISITES ONTO PATENTS.  THE EFFORT THROUGH THE
YEARS HAS BEEN TO EXPAND THE NARROW MONOPOLY OF THE PATENT.  THE COURT,
HOWEVER, HAS GENERALLY BEEN FAITHFUL TO THE STANDARD OF THE
CONSTITUTION, HAS RECOGNIZED THAT THE PUBLIC INTEREST COMES FIRST AND
REWARD TO INVENTORS SECOND, AND HAS REFUSED TO LET THE SELF-INTEREST OF
PATENTEES COME INTO THE ASCENDENCY.  AS WE STATED IN B.B. CHEMICAL CO.
V. ELLIS, 314 U.S. 495, 498, "THE PATENT MONOPOLY IS NOT ENLARGED BY
REASON OF THE FACT THAT IT WOULD BE MORE CONVENIENT TO THE PATENTEE TO
HAVE IT SO, OR BECAUSE HE CANNOT AVAIL HIMSELF OF ITS BENEFITS WITHIN
THE LIMITS OF THE GRANT."  FROM MOTION PICTURE PATENTS CO. V. UNIVERSAL
FILM MFG. CO., 243 U.S. 502, WHICH OVERRULED HENRY V. A.B. DICK CO.,
224 U.S. 1, TO INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392,
DECIDED ONLY THE OTHER DAY, THE COURT HAS QUITE CONSISTENTLY REFUSED TO
ALLOW THE PATENTEE'S "RIGHT TO EXCLUDE" TO BE EXPANDED INTO A RIGHT TO
LICENSE THE PATENT ON SUCH CONDITIONS AS THE PATENTEE MIGHT CHOOSE. 
FOR THE POWER TO ATTACH CONDITIONS WOULD ENABLE THE PATENTEE TO ENLARGE
HIS MONOPOLY BY CONTRACT AND EVADE THE REQUIREMENTS OF THE GENERAL LAW
APPLICABLE TO ALL PROPERTY.  THE PHILOSOPHY OF THOSE DECISIONS WAS
SUMMED UP IN MERCOID CORP. V. MID-CONTINENT INVESTMENT CO., 320 U.S.
661, 666, WHERE WE SAID: 

"THE NECESSITIES OR CONVENIENCE OF THE PATENTEE DO NOT JUSTIFY ANY
USE OF THE MONOPOLY OF THE PATENT TO CREATE ANOTHER MONOPOLY.  THE FACT
THAT THE PATENTEE HAS THE POWER TO REFUSE A LICENSE DOES NOT ENABLE HIM
TO ENLARGE THE MONOPOLY OF THE PATENT BY THE EXPEDIENT OF ATTACHING
CONDITIONS TO ITS USE.  ...  THE PATENT IS A PRIVILEGE.  BUT IT IS A
PRIVILEGE WHICH IS CONDITIONED BY A PUBLIC PURPOSE.  IT RESULTS FROM
INVENTION AND IS LIMITED TO THE INVENTION WHICH IT DEFINES.  WHEN THE
PATENTEE TIES SOMETHING ELSE TO HIS INVENTION, HE ACTS ONLY BY VIRTUE
OF HIS RIGHT AS THE OWNER OF PROPERTY TO MAKE CONTRACTS CONCERNING IT
AND NOT OTHERWISE.  HE THEN IS SUBJECT TO ALL THE LIMITATIONS UPON THAT
RIGHT WHICH THE GENERAL LAW IMPOSES UPON SUCH CONTRACTS." 

THE COURT, HOWEVER, ALLOWED AN EXCEPTION IN THIS LONG LINE OF CASES. 
IN UNITED STATES V. GENERAL ELECTRIC CO., SUPRA, DECIDED IN 1926, IT
FOLLOWED BEMENT V. NATIONAL HARROW CO., 186 U.S. 70, DECIDED IN 1902,
AND SUSTAINED A PRICE-FIXING PROVISION OF A LICENSE TO MAKE AND VEND
THE PATENTED INVENTION.  BY THAT DECISION PRICE-FIXING COMBINATIONS
WHICH ARE OUTLAWED BY THE SHERMAN ACT (UNITED STATES V. SOCONY-VACUUM
OIL CO., 310 U.S. 150) WERE HELD TO BE LAWFUL WHEN THE PROPERTY
INVOLVED WAS A PATENT.  BY WHAT AUTHORITY WAS THIS DONE? 

THE PATENT STATUTES DO NOT SANCTION PRICE-FIXING COMBINATIONS.  THEY
ARE INDEED WHOLLY SILENT ABOUT COMBINATIONS.  SO FAR AS RELEVANT HERE,
ALL THEY GRANT, AS ALREADY NOTED, IS THE "EXCLUSIVE RIGHT TO MAKE, USE,
AND VEND THE INVENTION OR DISCOVERY."  REV. STAT. SEC. 4884, 35 U.S.C.
SEC. 40.  THERE IS NO GRANT OF POWER TO COMBINE WITH OTHERS TO FIX THE
PRICE OF PATENTED PRODUCTS.  SINCE THE PATENT STATUTES ARE SILENT ON
THE SUBJECT, IT WOULD SEEM THAT THE VALIDITY OF PRICE-FIXING
COMBINATIONS IN THIS FIELD WOULD BE GOVERNED BY GENERAL LAW.  AND SINCE
THE SHERMAN ACT OUTLAWS PRICE-FIXING COMBINATIONS IT WOULD SEEM LOGICAL
AND IN KEEPING WITH THE PUBLIC POLICY EXPRESSED IN THAT LEGISLATION TO
APPLY ITS PROHIBITIONS TO PATENTS AS WELL AS TO OTHER PROPERTY.  THE
COURT MADE AN EXCEPTION IN THE CASE OF THESE PRICE-FIXING COMBINATIONS
IN ORDER TO MAKE THE PATENT MONOPOLY A MORE VALUABLE ONE TO THE
PATENTEE.  IT WAS CONCERNED WITH GIVING HIM AS HIGH A REWARD AS
POSSIBLE.  IT REASONED THAT IF THE PATENTEE COULD NOT CONTROL THE PRICE
AT WHICH HIS LICENSEES SOLD THE PATENTED ARTICLE, THEY MIGHT UNDERSELL
HIM; THAT A PRICE-FIXING COMBINATION WOULD GIVE HIM PROTECTION AGAINST
THAT CONTINGENCY AND THEREFORE WAS A REASONABLE DEVICE TO SECURE HIM A
PECUNIARY REWARD FOR HIS INVENTION.  THUS THE GENERAL ELECTRIC CASE
INVERTED CL. 8 OF ART. I, SEC. 8 OF THE CONSTITUTION AND MADE THE
INVENTOR'S REWARD THE PRIME RATHER THAN AN INCIDENTAL OBJECT OF THE
PATENT SYSTEM. 

IN THAT MANNER THE COURT SADDLED THE ECONOMY WITH A VICIOUS
MONOPOLY.  IN THE FIRST PLACE, THIS FORM OF PRICE FIXING UNDERWRITES
THE HIGH-COST PRODUCER.  BY PROTECTING HIM AGAINST COMPETITION FROM LOW
COST PRODUCERS, IT STRENGTHENS AND ENLARGES HIS MONOPOLY.  IT IS SAID
IN REPLY THAT HE, THE PATENTEE, HAS THAT MONOPOLY ANYWAY - THAT HIS
EXCLUSIVE RIGHT TO MAKE, USE, AND VEND WOULD GIVE HIM THE RIGHT TO
EXCLUDE OTHERS AND MANUFACTURE THE INVENTION AND MARKET IT AT ANY PRICE
HE CHOSE.  THAT IS TRUE.  BUT WHAT HE GETS BY THE PRICE-FIXING
AGREEMENT WITH HIS COMPETITORS IS MUCH MORE THAN THAT.  HE THEN GETS
NOT A BENEFIT INHERENT IN THE RIGHT OF EXCLUSION BUT A BENEFIT WHICH
FLOWS FROM SUPPRESSION OF COMPETITION BY COMBINATION WITH HIS
COMPETITORS.  THEN HE GETS THE BENEFITS OF THE PRODUCTION AND MARKETING
FACILITIES OF COMPETITORS WITHOUT THE RISKS OF PRICE COMPETITION.  CF.
COMPETITORS WITHOUT THE RISKS OF PRICE COMPETITION.  CF. AND HIS
ASSOCIATES GET THE BENEFITS OF A CONSPIRACY OR COMBINATION IN RESTRAINT
OF COMPETITION.  THAT IS MORE THAN AN "EXCLUSIVE RIGHT" TO AN
INVENTION; IT'S AN "EXCLUSIVE RIGHT" TO FORM A COMBINATION WITH
COMPETITORS TO FIX THE PRICES OF THE PRODUCTS OF INVENTION.  THE
PATENTEE CREATES BY THAT METHOD A POWERFUL INDUCEMENT FOR THE
ABANDONMENT OF COMPETITION, FOR THE CESSATION OF LITIGATION CONCERNING
THE VALIDITY OF PATENTS, FOR THE ACCEPTANCE OF PATENTS NO MATTER HOW
DUBIOUS, FOR THE ABANDONMENT OF RESEARCH IN THE DEVELOPMENT OF
COMPETING PATENTS.  THOSE WHO CAN GET STABILIZED MARKETS, ASSURED
PATENTS.  THOSE WHO CAN GET STABILIZED MARKETS, ASSURED MARGINS, AND
FREEDOM FROM PRICE CUTTING WILL FIND A PRICE-FIXING METHODS OF
MAINTAINING THEIR COMPETITIVE POSITIONS.  COMPETITION TENDS TO BECOME
IMPAIRED NOT BY REASON OF THE PUBLIC'S PREFERENCE FOR THE PATENTED
ARTICLE BUT BECAUSE OF THE PREFERENCE OF COMPETITORS FOR PRICE FIXING
AND FOR THE INCREASED PROFITS WHICH THAT METHOD OF DOING BUSINESS
PROMISES. 

PRICE FIXING IN ANY FORM IS PERHAPS THE MOST POWERFUL OF ALL
INDUCEMENTS FOR ABANDONMENT OF COMPETITION.  IT OFFERS SECURITY AND
STABILITY; IT ELIMINATES MUCH OF THE UNCERTAINTY OF COMPETITIVE
PRACTICES; IT PROMISES HIGH PROFITS.  IT IS THEREFORE ONE OF THE MOST
EFFECTIVE DEVICES TO REGIMENT WHOLE INDUSTRIES AND EXACT A MONOPOLY
PRICE FROM THE PUBLIC.  THE BENEFITS OF COMPETITION DISAPPEAR.  THE
PRICES CHARGED BY THE REGIMENTED INDUSTRY ARE DETERMINED NOT BY
REPRESENTATIVES OF THE PUBLIC, AS IN THE CASE OF ELECTRIC, WATER, AND
GAS RATES, BUT BY PRIVATE PARTIES WHO INCLINE TO CHARGE ALL THE TRAFFIC
WILL BEAR.  AND THE TYPE OF COMBINATION IN THIS CASE HAS THE POWER TO
INFLICT PRECISELY THE TYPE OF PUBLIC INJURY WHICH THE SHERMAN ACT
CONDEMNS.  THIS PRICE-FIXING SCHEME DOES FAR MORE THAN SECURE TO
INVENTORS "THE EXCLUSIVE RIGHT" TO THEIR DISCOVERIES WITHIN THE MEANING
OF CL. 8 OF ART. I, SEC. 8 OF THE CONSTITUTION.  IT GIVES THEM A
LEVERAGE ON THE MARKET WHICH ONLY A COMBINATION, NOT A PATENT BY
ITSELF, CAN CREATE.  YET IT IS "EVERY" COMBINATION IN RESTRAINT OF
TRADE WHICH SEC. 1 OF THE SHERMAN ACT CONDEMNS, PRICE-FIXING
COMBINATIONS DEALING WITH PATENTS NOT EXCLUDED. 

CONGRESS HAS MUCH TO SAY AS TO THE PATTERN OF OUR ECONOMIC
ORGANIZATION.  BUT I AM NOT CLEAR THAT CONGRESS COULD EXPAND "THE
EXCLUSIVE RIGHT" SPECIFIED IN THE CONSTITUTION INTO A RIGHT OF
INVENTORS TO UTILIZE THROUGH A PRICE-FIXING COMBINATION THE PRODUCTION
AND MARKETING FACILITIES OF COMPETITORS TO PROTECT THEIR OWN HIGH COSTS
OF PRODUCTION AND ELIMINATE OR SUPPRESS COMPETITION.  IT IS NOT
APPARENT THAT ANY SUCH RESTRICTION OR CONDITION PROMOTES THE PROGRESS
OF SCIENCE AND THE USEFUL ARTS.  BUT HOWEVER THAT MAY BE, THE
CONSTITUTION PLACES THE REWARDS TO INVENTORS IN A SECONDARY ROLE.  IT
MAKES THE PUBLIC INTEREST THE PRIMARY CONCERN IN THE PATENT SYSTEM.  TO
ALLOW THESE PRICE-FIXING SCHEMES IS TO REVERSE THE ORDER AND PLACE THE
REWARDS TO INVENTORS FIRST AND THE PUBLIC SECOND.  THIS IS NOT THE ONLY
WAY A PATENTEE CAN RECEIVE A PECUNIARY REWARD FOR HIS INVENTION.  HE
CAN CHARGE A ROYALTY WHICH HAS NO RELATION TO PRICE FIXING.  OR HE CAN
MANUFACTURE AND SELL AT SUCH PRICE AS HE MAY CHOOSE.  CERTAINLY IF WE
READ THE PATENT STATUTES SO AS TO HARMONIZE THEM AS CLOSELY AS POSSIBLE
WITH THE POLICY OF ANTI-TRUST LAWS, WE WILL STRIKE DOWN A COMBINATION
WHICH IS NOT NECESSARY TO EFFECTUATE THE PURPOSE OF THE PATENT
STATUTES.  IF WE DID THAT IN THIS CASE WE WOULD OVERRULE THE GENERAL
ELECTRIC CO. CASE. 

THIS COURT, NOT CONGRESS, WAS THE AUTHOR OF THE DOCTRINE FOLLOWED IN
THAT CASE.  THE RULE IT SANCTIONS IS ANOTHER OF THE PRIVATE PERQUISITES
WHICH THE COURT HAS WRITTEN INTO THE PATENT LAWS.  SEE SPECIAL
EQUIPMENT CO. V. COE, 324 U.S. 370, 383.  SINCE WE CREATED IT, WE
SHOULD TAKE THE INITIATIVE IN ELIMINATING IT.  IT IS HARD FOR ME TO
SQUARE IT WITH THE STANDARDS WHICH THE CONSTITUTION HAS SET FOR OUR
PATENT SYSTEM.  IT PLAINLY DOES VIOLENCE TO THE COMPETITIVE STANDARDS
WHICH CONGRESS HAS WRITTEN INTO THE SHERMAN ACT.    MR. JUSTICE BURTON,
WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE FRANKFURTER CONCUR,
DISSENTING. 

THIS DISSENT IS IMPELLED BY REGARD FOR THE SOUNDNESS, AUTHORITY AND
APPLICABILITY TO THIS CASE OF THE UNANIMOUS DECISIONS OF THIS COURT IN
BEMENT V. NATIONAL HARROW CO., 186 U.S. 70, AND UNITED STATES V.
GENERAL ELECTRIC CO., 272 U.S. 476. 

THE COMPLAINT CHARGES VIOLATION OF SEC. 1 OF THE SHERMAN ANTITRUST
ACT  FN1  BY THE DEFENDANT PATENT OWNERS AND CROSS-LICENSORS, LINE
MATERIAL COMPANY AND SOUTHERN STATES EQUIPMENT CORPORATION (HERE CALLED
RESPECTIVELY LINE AND SOUTHERN), AND ALSO BY THE TEN DEFENDANTS WHO
HOLD LICENSES UNDER THE TWO COMPLEMENTARY PATENTS, OWNED RESPECTIVELY
BY LINE AND SOUTHERN.  THESE PATENTS ARE FOR DROPOUT FUSE CUTOUTS. 
SOUTHERN'S PATENT IS THE DOMINANT PATENT BUT THE PRODUCT MADE UNDER IT
ALONE HAS NOT BEEN COMMERCIALLY SUCCESSFUL.  LINE'S PATENT IS FOR AN
IMPROVEMENT OF THAT PRODUCT WHICH HAS MADE IT COMMERCIALLY SUCCESSFUL. 
EACH OF THE TWELVE DEFENDANTS HAS RECEIVED AND EXERCISED AUTHORITY
UNDER BOTH PATENTS TO MAKE AND SELL THIS IMPROVED PRODUCT, BUT THE
GOVERNMENT CHARGES THEM WITH HAVING ENGAGED IN AN UNLAWFUL COMBINATION
AND CONSPIRACY IN RESTRAINT OF TRADE TO FIX, MAINTAIN AND CONTROL THE
PRICES AT WHICH THEY HAVE SOLD, IN INTERSTATE COMMERCE, THEIR
RESPECTIVE PRODUCTS UNDER THESE PATENTS.  IT IS NOT DISPUTED THAT THE
SALES WERE MADE IN INTERSTATE COMMERCE.  THE TRIAL COURT'S FINDINGS OF
FACT DEMONSTRATE, HOWEVER, THAT THERE HAVE BEEN NO AGREEMENTS BETWEEN
ANY OF THE DEFENDANTS WITH RESPECT TO THE PRICES OF THESE PRODUCTS
OTHER THAN THE PRICE-LIMITING PROVISIONS CONTAINED IN THEIR RESPECTIVE
LICENSES.  FN2  THE FINDINGS OF FACT SHOW ALSO THAT, UNLESS THE
GOVERNMENT SUSTAINS ITS CONTENTION THAT THOSE PROVISIONS CONSTITUTE,
PER SE, AN UNLAWFUL RESTRAINT OF TRADE, ITS COMPLAINT SHOULD BE
DISMISSED.  FN3 

THE QUESTION THUS PRESENTED IS:  DO THE PRICE-LIMITING PROVISIONS IN
SOME OR ALL OF THE LICENSES UNDER LINE'S OR SOUTHERN'S PATENTS
CONSTITUTE A RESTRAINT OF TRADE IN VIOLATION OF SEC. 1 OF THE SHERMAN
ACT?  WE AGREE WITH THE COURT BELOW THAT THEY DO NOT.  FN4  THE PRICE
LIMITING PROVISIONS IN THIS CASE ARE COMPARABLE TO THOSE WHICH, IN THE
BEMENT AND GENERAL ELECTRIC CASES, SUPRA, WERE HELD NOT TO VIOLATE THE
SHERMAN ACT.  THIS COURT SUSTAINED THE AGREEMENT IN THE BEMENT CASE
BECAUSE THE SHERMAN ACT - 

"CLEARLY DOES NOT REFER TO THAT KIND OF A RESTRAINT OF INTERSTATE
COMMERCE WHICH MAY ARISE FROM REASONABLE AND LEGAL CONDITIONS IMPOSED
UPON THE ASSIGNEE OR LICENSEE OF A PATENT BY THE OWNER THEREOF,
RESTRICTING THE TERMS UPON WHICH THE ARTICLE MAY BE USED AND THE PRICE
TO BE DEMANDED THEREFOR.  SUCH A CONSTRUCTION OF THE ACT WE HAVE NO
DOUBT WAS NEVER CONTEMPLATED BY ITS FRAMERS."  (AT P. 92.) 

THE LICENSE IN THAT CASE WAS ISSUED UNDER SEVERAL PATENTS AND, AS
HERE, IT LIMITED THE PRICES AT WHICH THE LICENSEE WAS AUTHORIZED TO
SELL ARTICLES PRODUCED BY THE LICENSEE UNDER THAT LICENSE.  IN THE
GENERAL ELECTRIC CASE, THIS COURT, IN SPEAKING OF THE PATENT HOLDER'S
RIGHT TO LIMIT THE SELLING PRICES OF HIS LICENSEE'S PRODUCTS, SAID: 

"WE THINK HE (THE PATENT HOLDER) MAY DO SO, PROVIDED THE CONDITIONS
OF SALE ARE NORMALLY AND REASONABLY ADAPTED TO SECURE PECUNIARY REWARD
FOR THE PATENTEE'S MONOPOLY.  ONE OF THE VALUABLE ELEMENTS OF THE
EXCLUSIVE RIGHT OF A PATENTEE IS TO ACQUIRE PROFIT BY THE PRICE AT
WHICH THE ARTICLE IS SOLD."  (AT P. 490.) 

IN THE PRESENT CASE, THERE ARE TWO TYPES OF LICENSE AGREEMENTS.  THE
PRICE-LIMITING PROVISIONS ARE THE SAME IN EACH.  THE FIRST TYPE IS THAT
OF THE CROSS-LICENSING AGREEMENT BETWEEN LINE AND SOUTHERN.  IN IT LINE
GRANTED TO SOUTHERN A NONEXCLUSIVE, ROYALTY-FREE LICENSE TO MAKE AND
SELL THE PRODUCTS HERE IN QUESTION.  LINE ALSO PRESCRIBED THAT
SOUTHERN'S PRICES, TERMS AND CONDITIONS OF SALE SHOULD BE "NOT MORE
FAVORABLE TO THE CUSTOMER THAN THOSE ESTABLISHED FROM TIME TO TIME AND
FOLLOWED BY THE LINE COMPANY IN MAKING ITS SALES."  THE DIFFERENCE
BETWEEN THIS LICENSE AGREEMENT AND LINE'S AGREEMENTS WITH EACH OF THE
OTHER DEFENDANTS IS THAT SOUTHERN, IN RETURN FOR THIS LICENSE, INSTEAD
OF PAYING CASH ROYALTIES TO LINE, ISSUED TO LINE A LIMITED CROSS
LICENSE UNDER SOUTHERN'S COMPLEMENTARY PATENT ON A DROPOUT FUSE
CUTOUT.  SOUTHERN ALSO GRANTED TO LINE AN EXCLUSIVE RIGHT TO ISSUE SUB
LICENSES UNDER THAT PATENT.  SOUTHERN INSERTED NO PRICE LIMITATION IN
ITS CROSS-LICENSE TO LINE AND LINE MADE NO COMMITMENT TO INSERT PRICE
LIMITATIONS IN ANY SUB-LICENSE WHICH IT MIGHT ISSUE UNDER SOUTHERN'S
PATENT.  AS FAR AS PRICE LIMITATIONS WERE CONCERNED, THEY ALL WERE
CONTAINED IN THE ROYALTY-FREE, NONEXCLUSIVE LICENSE FROM LINE TO
SOUTHERN AND WERE APPLICABLE ONLY TO PRODUCTS MADE AND SOLD BY THE
LATTER UNDER LINE'S PATENT.  ASSUMING THAT THE LIMITATIONS THUS PLACED
BY LINE ON THE PRICE OF SOUTHERN'S PRODUCTS, MADE AND SOLD BY IT UNDER
LINE'S COMPLEMENTARY PATENT, WERE REASONABLE LIMITATIONS, ESPECIALLY IN
RELATION TO LINE'S OWN OPERATIONS UNDER THE SAME PATENT, THEY
REPRESENTED A LAWFUL PROTECTION OF LINE'S PATENT INTERESTS.  THEY
EVIDENCED A NORMAL EXERCISE BY A MANUFACTURING PATENTEE "OF THE
EXCLUSIVE RIGHT OF A PATENTEE  ...  TO ACQUIRE PROFIT BY THE PRICE AT
WHICH THE ARTICLE IS SOLD."  FN5  IN SOME WAYS, THEY WERE EVEN MORE
NATURAL AND REASONABLE PROVISIONS FOR INSERTION BY LINE THAN WOULD HAVE
BEEN A BARE PROVISION FOR ROYALTIES.  LINE EVIDENTLY NEEDED THESE PRICE
LIMITATIONS TO ENABLE IT TO CONTINUE TO MAKE AND SELL THE PRODUCT WHICH
ITS OWN IMPROVEMENT HAD CONVERTED FROM A COMMERCIAL FAILURE INTO A
COMMERCIAL SUCCESS.  IT WILL BE DEMONSTRATED LATER THAT LINE'S RECEIPT
OF A ROYALTY-FREE, UNCONDITIONAL CROSS-LICENSE UNDER SOUTHERN'S
COMPLEMENTARY PATENT, AS CONSIDERATION FOR LINE'S LICENSE TO SOUTHERN,
DID NOT, PER SE, CONVERT THIS OTHERWISE LAWFULLY LIMITED LICENSE INTO
AN INVALID LICENSE VIOLATING THE SHERMAN ACT. 

THE OTHER TYPE OF LICENSE THAT WAS USED BY LINE WAS THAT OF A DIRECT
LICENSE ISSUED SEPARATELY TO EACH OF THE TEN OTHER LICENSEE
DEFENDANTS.  THESE LICENSES CLOSELY RESEMBLED EACH OTHER.  EACH WAS A
NONEXCLUSIVE LICENSE CALLING FOR THE PAYMENT OF A MODEST ROYALTY TO
LINE ON EACH PRODUCT MADE AND SOLD BY THE LICENSEE UNDER LINE'S
PATENT.  EACH INCLUDED PRICE LIMITATIONS COMPARABLE TO THOSE IN LINE'S
LICENSE TO SOUTHERN.  THESE PRICE-LIMITING LICENSES FROM LINE ARE, AS
SUCH, ENTIRELY COMPARABLE TO THOSE IN THE BEMENT AND GENERAL ELECTRIC
CASES.  EACH LICENSE, HOWEVER, ALSO INCLUDED A SUBLICENSE ISSUED BY
LINE UNDER SOUTHERN'S COMPLEMENTARY PATENT.  THE ROYALTIES ON THE
PRODUCTS MADE AND SOLD UNDER THE TWO COMPLEMENTARY PATENTS WERE TO BE
DIVIDED EQUALLY BETWEEN LINE AND SOUTHERN.  IT WILL BE DEMONSTRATED
LATER THAT THIS SUBLICENSE UNDER SOUTHERN'S COMPLEMENTARY PATENT AND
THE AGREEMENT BY LINE TO DIVIDE WITH SOUTHERN THE ROYALTIES RECEIVED
UPON PRODUCTS MADE AND SOLD UNDER THE TWO PATENTS DID NOT, PER SE,
CONVERT THESE OTHERWISE LAWFULLY LIMITED LICENSES INTO INVALID LICENSES
VIOLATING THE SHERMAN ACT. 

LINE ALSO GRANTED TO CERTAIN LICENSEE-DEFENDANTS DESIRING IT, A
LICENSE UNDER LINE'S SO-CALLED "KYLE PATENT" FOR ENCLOSED FUSE BOXES. 
SOME OF THESE LICENSES CARRIED PRICE LIMITATIONS ON PRODUCTS MADE AND
SOLD BY THE LICENSEE UNDER THE KYLE PATENT.  THESE LICENSES ARE
ENTIRELY COMPARABLE TO THOSE IN THE BEMENT AND GENERAL ELECTRIC CASES. 
THEY ARE WELL WITHIN THE SCOPE OF THOSE PRECEDENTS AND CARRY NO
SUGGESTED BASIS FOR A DISTINCTION CLAIMED TO CONVERT THEM INTO INVALID
LICENSES VIOLATING THE SHERMAN ACT. 

THE GOVERNMENT NOW ASKS THIS COURT TO OVERRULE THE BEMENT AND GENERAL
ELECTRIC CASES.  THE OPINION BY MR. JUSTICE REED REJECTS THAT REQUEST
BUT SEEKS TO JUSTIFY A REVERSAL OF THE JUDGMENT BELOW BY DISTINGUISHING
THIS CASE FROM THOSE PRECEDENTS.  THIS DISSENT UNDERTAKES NOT ONLY TO
EMPHASIZE THE SOUNDNESS OF THE BEMENT AND GENERAL ELECTRIC DECISIONS,
BUT TO DEMONSTRATE THAT THE BASIC PRINCIPLES WHICH SUSTAIN THOSE
DECISIONS APPLY TO THIS CASE WITH AT LEAST EQUAL FORCE.  THIS INITIAL
DISCUSSION WILL OMIT THE CONSIDERATION OF THE CROSS-LICENSE FROM
SOUTHERN TO LINE, THE GRANT FROM SOUTHERN TO LINE OF THE EXCLUSIVE
RIGHT TO ISSUE SUBLICENSES UNDER THE SOUTHERN PATENT AND THE AGREEMENT
FOR THE DIVISION OF ROYALTIES BETWEEN SOUTHERN AND LINE.  THE BEMENT
AND GENERAL ELECTRIC DECISIONS ARE AUTHORITY FOR UPHOLDING THE
REMAINING PORTIONS OF SUCH AGREEMENTS IN THE LIGHT OF THE PREVIOUSLY
MENTIONED FINDINGS OF FACT WHICH SHOW THAT THE AGREEMENTS "ARISE FROM
REASONABLE AND LEGAL CONDITIONS IMPOSED UPON THE ASSIGNEE OR LICENSEE
OF A PATENT BY THE OWNER THEREOF, RESTRICTING THE TERMS UPON WHICH THE
ARTICLE MAY BE USED AND THE PRICE TO BE DEMANDED THEREFOR"  FN6  AND
THAT "THE CONDITIONS OF SALE ARE NORMALLY AND REASONABLY ADAPTED TO
SECURE PECUNIARY REWARD FOR THE PATENTEE'S MONOPOLY."  FN7  THIS
DISSENT ACCORDINGLY RE-EXAMINES THE FOUNDATION FOR THOSE DECISIONS AND
EMPHASIZES THE DEVELOPMENT, NATURE AND EFFECT OF THE PATENT RIGHTS
WHICH ARE DECISIVE OF THE MAIN ISSUE BOTH IN THOSE CASES AND IN THIS. 

          PATENT RIGHTS. 

AN UNDERSTANDING OF THE HISTORICAL DEVELOPMENT AND OF THE NATURE OF
PATENT RIGHTS IN THE UNITED STATES IS ESSENTIAL TO A DISCUSSION OF THE
RELATION BETWEEN THEM AND THE RESTRAINTS OF TRADE PROHIBITED BY THE
SHERMAN ACT.  AMERICAN PATENT RIGHTS FIND THEIR ORIGIN IN GREAT
BRITAIN.  THAT NATION APPEARS TO HAVE BEEN THE FIRST TO ISSUE "PATENTS"
TO SECURE TO INVENTORS FOR LIMITED TIMES EXCLUSIVE RIGHTS TO THEIR
RESPECTIVE DISCOVERIES.  THESE "PATENTS" WERE CALLED "LITERAE
PATENTES," I.E., "OPEN LETTERS," BECAUSE THEY WERE NOT SEALED UP BUT
WERE EXPOSED TO VIEW WITH THE GREAT SEAL PENDANT AT THE BOTTOM.  THEY
WERE ADDRESSED BY THE SOVEREIGN TO ALL SUBJECTS OF THE REALM.  SUCH
INSTRUMENTS WERE, AND TO A DEGREE STILL ARE, THE COMMON FORM USED FOR
MAKING GRANTS OF DIGNITIES, SUCH AS PEERAGES, APPOINTMENTS TO CERTAIN
OFFICES AND GRANTS OF PRIVILEGE OF VARIOUS KINDS.  THEIR FORM,
THEREFORE, WAS SIMILAR TO THAT OF THE "PATENTS" USED TO GRANT EXCLUSIVE
RIGHTS OR "MONOPOLIES" TO TRADE GUILDS, CORPORATIONS AND, IN SOME
CASES, INDIVIDUALS, PERMITTING THEM TO EXCLUDE COMPETITORS FROM THE
CONDUCT OF CERTAIN LINES OF PROFITABLE BUSINESS.  FN8 

THE CONTRAST BETWEEN THESE TWO KINDS OF EXCLUSIVE RIGHTS IN THEIR
RELATION TO THE PUBLIC WAS REFLECTED LATER IN ACTS OF THE BRITISH
PARLIAMENT AND IN THE CONSTITUTION AND STATUTES OF THE UNITED STATES. 
A PATENT TO AN INVENTOR TOOK NOTHING FROM THE PUBLIC WHICH THE PUBLIC
OR THE INVENTOR'S COMPETITORS ALREADY HAD.  BY HYPOTHESIS, IT DEALT
WITH A NEW ASSET AVAILABLE TO CIVILIZATION ONLY THROUGH ITS INVENTOR. 
THE ROYAL PATENT SERVED TO ENCOURAGE THE INVENTOR TO DISCLOSE HIS
INVENTION.  BY GRANTING TO THE INVENTOR THE RIGHT TO EXCLUDE ALL OTHERS
FROM MAKING, USING OR SELLING THE INVENTION FOR A LIMITED TIME, IT WAS
FELT THAT THE PUBLIC WAS WELL SERVED BY THE INVENTION'S DISCLOSURE, ITS
EARLY AVAILABILITY UNDER THE PATENT AND ITS LATER GENERAL AVAILABILITY
TO EVERYONE.  THIS PROCEDURE WAS POPULAR.  ON THE OTHER HAND, ROYAL
PATENTS SECURING EXCLUSIVE RIGHTS TO PRIVATE PARTIES TO CONDUCT
PROFITABLE ENTERPRISES TO THE EXCLUSION OF EXISTING OR AVAILABLE
COMPETITORS WERE ISSUED TO SHOW ROYAL FAVOR OR TO SECURE FUNDS AT THE
EXPENSE OF THE PUBLIC.  SUCH PATENTS BECAME HIGHLY UNPOPULAR.  THE
COURTS, AT AN EARLY DATE, HELD THEM INVALID.  FN9 

AS EARLY AS 1602, FRANCIS BACON, IN THE HOUSE OF COMMONS, SUPPORTED
THE PRINCIPLE THAT A MONOPOLY SHOULD BE GRANTED ONLY FOR A "NEW
MANUFACTURE."  IN 1623, THERE WAS ENACTED THE STATUTE OF MONOPOLIES (21
JAC.  I, C. 3, SEC. I; 1 WALKER ON PATENTS, PP. 18-21(DELLER'S ED.
1937)) WHICH DECLARED VOID ALL MONOPOLIES AND LETTERS PATENT "OF OR FOR
THE SOLE BUYING, SELLING, MAKING, WORKING OR USING OF ANY THING WITHIN
THIS REALM,  ...  "  HOWEVER, SEC. VI OF THIS ACT MADE AN EXPRESS
EXCEPTION IN FAVOR OF PATENTS FOR INVENTIONS.  FN10  THAT SECTION HAS
BECOME THE FOUNDATION OF THE PATENT LAW SECURING EXCLUSIVE RIGHTS TO
INVENTORS NOT ONLY IN GREAT BRITAIN BUT THROUGHOUT THE WORLD. 

THE RESULT, HISTORICALLY AND IN PRINCIPLE, HAS NOT BEEN A CONFLICT
BETWEEN TWO LEGISLATIVE MANDATES.  IT HAS BEEN RATHER A LONG STANDING
APPROVAL, BOTH BY THE BRITISH PARLIAMENT AND THE CONGRESS OF THE UNITED
STATES, OF THE UNIQUE VALUE OF THE EXERCISE, FOR LIMITED PERIODS, OF
EXCLUSIVE RIGHTS BY INVENTORS TO THEIR RESPECTIVE INVENTIONS,
PARALLELED BY AN EQUALLY SUSTAINED AND EMPHATIC DISAPPROVAL OF CERTAIN
OTHER RESTRAINTS OF TRADE NOT REPRESENTATIVE OF EXCLUSIVE RIGHTS OF
INVENTORS TO THEIR INVENTIONS. 

THE LONG AND UNFALTERING DEVELOPMENT OF OUR PATENT LAW OFTEN HAS BEEN
TOUCHED UPON IN OUR DECISIONS.  HOWEVER, IN THE FACE OF THE DIRECT
ATTACK NOW MADE UPON SOME OF ITS UNDERLYING PRINCIPLES, THE INFINITE
IMPORTANCE OF OUR INVENTIONS JUSTIFIES A BRIEF REVIEW HERE OF THE
DEVELOPMENT AND NATURE OF THE PATENT RIGHTS ATTACKED.  THE DECISION IN
THIS CASE MUST TURN UPON THIS COURT'S UNDERSTANDING OF THE RELATION
BETWEEN THE LICENSES BEFORE IT, THE PATENT RIGHTS TO WHICH THEY RELATE
AND THE SHERMAN ACT.  AS INTERPRETER OF THE CONGRESSIONAL ACTS THAT
HAVE EXPRESSED THE PATENT POLICY OF THIS NATION SINCE ITS BEGINNING,
THIS COURT IS ENTRUSTED WITH THE PROTECTION OF THAT POLICY AGAINST
INTRUSIONS UPON IT.  THE CRUCIAL IMPORTANCE OF THE DEVELOPMENT OF
INVENTIONS AND DISCOVERIES IS NOT LIMITED TO THIS NATION.  AS THE
POPULATION OF THE WORLD HAS INCREASED, ITS GEOGRAPHICAL FRONTIERS HAVE
SHRUNK.  HOWEVER, THE FRONTIERS OF SCIENCE HAVE EXPANDED UNTIL
CIVILIZATION NOW DEPENDS LARGELY UPON DISCOVERIES ON THOSE FRONTIERS TO
MEET THE INFINITE NEEDS OF THE FUTURE.  THE UNITED STATES, THUS FAR,
HAS TAKEN A LEADING PART IN MAKING THOSE DISCOVERIES AND IN PUTTING
THEM TO USE.    THE CONSTITUTION OF THE UNITED STATES PROVIDES THAT
"THE CONGRESS SHALL HAVE POWER  ...  TO PROMOTE THE PROGRESS OF SCIENCE
AND USEFUL ARTS, BY SECURING FOR LIMITED TIMES TO AUTHORS AND INVENTORS
THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS AND DISCOVERIES; ...
"  ART. I, SEC. 8. 

THE STATUTES PRIMARILY IMPLEMENTING THIS PROVISION STATE: 

"ANY PERSON WHO HAS INVENTED OR DISCOVERED ANY NEW AND USEFUL ART,
MACHINE, MANUFACTURE, OR COMPOSITION OF MATTER, OR ANY NEW AND USEFUL
IMPROVEMENTS THEREOF,  ...  NOT KNOWN OR USED BY OTHERS IN THIS
COUNTRY, BEFORE HIS INVENTION OR DISCOVERY THEREOF, AND NOT PATENTED OR
DESCRIBED IN ANY PRINTED PUBLICATION IN THIS OR ANY FOREIGN COUNTRY,
BEFORE HIS INVENTION OR DISCOVERY THEREOF, OR MORE THAN ONE YEAR PRIOR
TO HIS APPLICATION, AND NOT IN PUBLIC USE OR ON SALE IN THIS COUNTRY
FOR MORE THAN ONE YEAR PRIOR TO HIS APPLICATION, UNLESS THE SAME IS
PROVED TO HAVE BEEN ABANDONED, MAY, UPON PAYMENT OF THE FEES REQUIRED
BY LAW, AND OTHER DUE PROCEEDING HAD, OBTAIN A PATENT THEREFOR."  R.S.
SEC. 4886, AS AMENDED, 46 STAT. 376, 53 STAT. 1212, 35 U.S.C. SEC. 31. 

"EVERY PATENT SHALL CONTAIN A SHORT TITLE OR DESCRIPTION OF THE
INVENTION OR DISCOVERY, CORRECTLY INDICATING ITS NATURE AND DESIGN, AND
A GRANT TO THE PATENTEE, HIS HEIRS OR ASSIGNS, FOR THE TERM OF
SEVENTEEN YEARS, OF THE EXCLUSIVE RIGHT TO MAKE, USE, AND VEND THE
INVENTION OR DISCOVERY  ...  THROUGHOUT THE UNITED STATES AND THE
TERRITORIES THEREOF, REFERRING TO THE SPECIFICATION FOR THE PARTICULARS
THEREOF.  ...  "  R.S. SEC. 4884, AS AMENDED, 46 STAT. 376, 35 U.S.C.
SEC. 40.  FN11 

"EVERY APPLICATION FOR PATENT OR PATENT OR ANY INTEREST THEREIN SHALL
BE ASSIGNABLE IN LAW BY AN INSTRUMENT IN WRITING, AND THE APPLICANT OR
PATENTEE OR HIS ASSIGNS OR LEGAL REPRESENTATIVES MAY IN LIKE MANNER
GRANT AND CONVEY AN EXCLUSIVE RIGHT UNDER HIS APPLICATION FOR PATENT OR
PATENT TO THE WHOLE OR ANY SPECIFIED PART OF THE UNITED STATES...." 
R.S. SEC. 4898, AS AMENDED, 55 STAT. 634, 35 U.S.C. (SUPP. V, 1946)
SEC. 47. 

CONWAY P. COE, COMMISSIONER OF PATENTS OF THE UNITED STATES FROM 1933
TO 1945, DISCUSSED THE HISTORICAL SIGNIFICANCE OF THE EARLY
ESTABLISHMENT OF THE AMERICAN PATENT SYSTEM IN HIS TESTIMONY BEFORE THE
TEMPORARY NATIONAL ECONOMIC COMMITTEE IN 1939.  HE SAID: 

"THE AMERICAN PATENT SYSTEM WAS ESTABLISHED AT A TIME WHEN MECHANICAL
INVENTIONS HAD ALREADY BEGUN TO AFFECT NOT ONLY THE INDUSTRIAL
CONDITIONS, BUT ALSO THE ECONOMIC, SOCIAL, AND POLITICAL STATUS OF
EUROPE AND THE NEW NATION JUST ERECTED ON THIS CONTINENT.  THE
SIGNIFICANCE OF THE INVENTIONS PUT TO WORK IN ENGLAND AND THE STATES OF
THE CONFEDERATION WAS REALIZED BY THE AMERICAN STATESMEN OF THAT ERA. 
IT IS AGREED THAT THEIR RECOGNITION OF THE VALUE OF THESE NEW ECONOMIC
FACTORS PROMPTED THEM TO WRITE INTO THE CONSTITUTION THE PROVISION OF
ARTICLE I, SECTION 8, EMPOWERING CONGRESS 'TO PROMOTE THE PROGRESS OF
SCIENCE AND USEFUL ARTS BY SECURING FOR LIMITED TIMES TO AUTHORS AND
INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS AND
DISCOVERIES.'  THIS PROVISION, BY THE WAY, IS IMPRESSIVE NOT ONLY
BECAUSE IT IS INCLUDED IN THE CONSTITUTION AS ONE OF THE MAJOR GRANTS
OF POWER TO CONGRESS, BUT EQUALLY BECAUSE IT BESTOWS ON PATENTEES A
COMPLETE MONOPOLY, AND THEREFORE RAISES A QUESTION AS TO THE
CONSTITUTIONALITY OF AN ATTEMPT TO COMPEL THE OWNER OF A PATENT TO
SHARE WITH OTHERS THE TITLE, USE, AND AVAIL OF HIS PROPERTY.  I DO NOT
PRESUME TO DETERMINE THE POINT; BUT I MUST CONTEMPLATE IT AS AN ISSUE
TO BE MET HERE OR HEREAFTER. 

"THE AUTHORS OF OUR PATENT SYSTEM, JUDGING BY THE LANGUAGE OF ARTICLE
I, SECTION 8, HELD THE EXCLUSIVENESS OF THE RIGHTS VESTED IN A PATENTEE
AS A POWERFUL AID TO PROGRESS IN ARTS AND SCIENCES."  FN12  HEARINGS
BEFORE THE TEMPORARY NATIONAL ECONOMIC COMMITTEE, 76TH CONG., 1ST SESS.
839-840(1939). 

HE ANALYZED THE "PATENT RIGHTS" GRANTED TO THE INVENTOR AND STATED
HIS REASONS FOR CONCLUDING THAT THE "MONOPOLY" VESTED IN A PATENTEE IS
NOT IN CONFLICT WITH OUR ANTITRUST LAWS AS FOLLOWS: 

"IT OCCURS TO ME THAT A GREAT DEAL OF MISAPPREHENSION RESULTS FROM
THE FAILURE TO DISTINGUISH BETWEEN THE MONOPOLY OR PRIVILEGE VESTED IN
A PATENTEE AND THE SORT OF MONOPOLY THAT BRITISH SOVEREIGNS ONCE
CONFERRED.  IT IS ONLY WHEN WE APPRECIATE THIS DISTINCTION THAT WE CAN
UNDERSTAND HOW JEFFERSON COULD CONSISTENTLY ADVOCATE THE MONOPOLY OF
PATENTS FOR INVENTIONS WHILE CONDEMNING THE TRADITIONAL FORM OF
MONOPOLY. 

"AMERICANS GENERALLY DETEST MONOPOLY IN THE TRUE SENSE OF THE TERM
BECAUSE IT MAKES POSSIBLE THE RUTHLESS EXERCISE OF POWER.  INDEED, THE
AMERICAN REVOLUTION WAS PRECIPITATED BY POPULAR RESENTMENT OF THE
MONOPOLY ON TEA HELD BY THE EAST INDIA CO. IT WOULD, THEREFORE, HAVE
BEEN EXCEEDINGLY STRANGE IF, ONLY A FEW YEARS LATER, THE DELEGATES SENT
TO THE CONSTITUTIONAL CONVENTION BY MASSACHUSETTS AND THE OTHER
COLONIES HAD BEEN WILLING TO SANCTION AN EQUIVALENT FORM OF MONOPOLY
UNDER THE NEW GOVERNMENT THEY WERE CREATING.  IN THE SIXTEENTH AND
SEVENTEENTH CENTURIES A KING OR QUEEN OF ENGLAND COULD REWARD A
FAVORITE BY GRANTING HIM A MONOPOLY ON SALT OR SOME OTHER NECESSARY OF
LIFE.  THIS BENEFICIARY OF ROYAL FAVOR WAS NOT, OF COURSE, THE
DISCOVERER OF SALT.  THAT CAME READY-MADE FROM THE HANDS OF THE CREATOR
EONS BEFORE THE ADVENT OF MAN.  WHAT THE DARLING OF HIS OR HER MAJESTY
RECEIVED WAS THE POWER TO COMPEL OTHERS TO USE SALT SOLELY OF HIS
SUPPLYING AND ONLY ON TERMS OF HIS DICTATION. 

"BUT A PATENT IS NO SUCH MONOPOLY.  IT IS A REWARD FOR THE INVENTION
OR DISCOVERY OF SOMETHING NEW, SOMETHING BEFORE UNKNOWN, SOMETHING
ADDED TO THE SUM TOTAL OF HUMAN KNOWLEDGE, UTILITY, WELL-BEING;
SOMETHING WHICH THE INVENTOR OR DISCOVERER, DESPISING THE LURE OF MONEY
OR FAME, MIGHT HAVE WITHHELD FROM HIS FELLOW MEN.  BY THE MONOPOLY THAT
GOES WITH A PATENT, THEN, THE GOVERNMENT RECOMPENSES AND, FOR A LIMITED
TIME, PROTECTS THE INVENTOR OR DISCOVERER WHO GIVES TO THE WORLD THE
USE AND BENEFIT OF HIS INVENTION OR DISCOVERY.  THIS IS A KIND AND A
DEGREE OF MUTUALITY THAT NEGATIVES MONOPOLY IN THE OLD OR THE CURRENT
CONCEPT.  MONOPOLY IN THE LATTER SENSE OF THE TERM GAVE TO AN
INDIVIDUAL OR A GROUP COMPLETE DOMINION OF SOMETHING ALREADY EXISTENT. 
A PATENT AWARDS MONOPOLY TO THE PRODUCER OF SOMETHING ORIGINAL,
SOMETHING SUPERADDED TO THE COMMON STORE.  SO IT IS THAT TWO THINGS
BEARING THE SAME NAME NEED NOT BE OF THE SAME NATURE. 

"IT HAS BEEN CONTENDED THAT THERE SOMETIMES OCCURS A CLASH BETWEEN
THE ANTITRUST LAWS AND THE PATENT STATUTES.  I MIGHT SUGGEST THAT SINCE
THE FIRST ANTI-TRUST LEGISLATION IN 1890, THE PATENT LAWS AND THE ANTI
TRUST LAWS HAVE COEXISTED WITHOUT ANY IRRECONCILABLE CONFLICTS BETWEEN
THEM.  THEY HAVE EACH OF THEM AT LEAST ONE COMMON OBJECTIVE, NAMELY,
THE RETENTION BY THE PUBLIC OF A RIGHT ONCE ACQUIRED BY IT.  AS A
MATTER OF FACT, PATENTS ACCOMPLISH MORE THAN THE RETENTION OF THE
ACQUIRED RIGHTS.  THEIR INFLUENCE IS CREATIVE; THEY OPERATE TO MULTIPLY
AND EXPAND ACQUISITIONS BY THE PUBLIC."  (ID. AT PP. 840-841.) 

A COMPARABLE ANALYSIS OF THE NATURE OF THE GRANT TO INVENTORS OF THE
EXCLUSIVE RIGHT TO THEIR RESPECTIVE INVENTIONS OR DISCOVERIES FOR A
LIMITED TIME HAS BEEN MADE BY THIS COURT. 

"THOUGH OFTEN SO CHARACTERIZED, A PATENT IS NOT, ACCURATELY SPEAKING,
A MONOPOLY, FOR IT IS NOT CREATED BY THE EXECUTIVE AUTHORITY AT THE
EXPENSE AND TO THE PREJUDICE OF ALL THE COMMUNITY EXCEPT THE GRANTEE OF
THE PATENT.  SEYMOUR V. OSBORNE, 11 WALL.  516, 533.  THE TERM MONOPOLY
CONNOTES THE GIVING OF AN EXCLUSIVE PRIVILEGE FOR BUYING, SELLING,
WORKING OR USING A THING WHICH THE PUBLIC FREELY ENJOYED PRIOR TO THE
GRANT.  THUS A MONOPOLY TAKES SOMETHING FROM THE PEOPLE.  AN INVENTOR
DEPRIVES THE PUBLIC OF NOTHING WHICH IT ENJOYED BEFORE HIS DISCOVERY,
BUT GIVES SOMETHING OF VALUE TO THE COMMUNITY BY ADDING TO THE SUM OF
HUMAN KNOWLEDGE.  UNITED STATES V. BELL TELEPHONE CO., 167 U.S. 224,
239; PAPER BAG PATENT CASE, 210 U.S. 405, 424; BROOKS V. JENKINS, 3
MCLEAN 432, 437; PARKER V. HAWORTH, 4 MCLEAN 370, 372; ALLEN V. HUNTER,
6 MCLEAN 303, 305-306; ATTORNEY GENERAL V. RUMFORD CHEMICAL WORKS, 2
BANN.  & ARD.  298, 302.  HE MAY KEEP HIS INVENTION SECRET AND REAP ITS
FRUITS INDEFINITELY.  IN CONSIDERATION OF ITS DISCLOSURE AND THE
CONSEQUENT BENEFIT TO THE COMMUNITY, THE PATENT IS GRANTED.  AN
EXCLUSIVE ENJOYMENT IS GUARANTEED HIM FOR SEVENTEEN YEARS, BUT UPON THE
EXPIRATION OF THAT PERIOD, THE KNOWLEDGE OF THE INVENTION ENURES TO THE
PEOPLE, WHO ARE THUS ENABLED WITHOUT RESTRICTION TO PRACTICE IT AND
PROFIT BY ITS USE.  KENDALL V. WINSOR, 21 HOW.  322, 327; UNITED STATES
V. BELL TELEPHONE CO., SUPRA, P. 239.  TO THIS END THE LAW REQUIRES
SUCH DISCLOSURE TO BE MADE IN THE APPLICATION FOR PATENT THAT OTHERS
SKILLED IN THE ART MAY UNDERSTAND THE INVENTION AND HOW TO PUT IT TO
USE."  UNITED STATES V. DUBILIER CONDENSER CORP., 289 U.S. 178, 186
187.  FN13 

THIS CONSTITUTIONAL AND LEGISLATIVE POLICY TOWARD INVENTIONS IS
SPECIFIC IN CONTRAST WITH THE GENERALITY OF THE LANGUAGE IN THE SHERMAN
ACT OF 1890.  THE CONSTITUTIONAL AND LONG STANDING STATUTORY APPROVAL
OF THE EXCLUSIVE RIGHTS OF AN INVENTOR TO MAKE, USE AND SELL PRODUCTS
OF HIS INVENTION FOR A LIMITED TIME WAS AN AMPLE GUARANTY THAT THE
SHERMAN ACT DID NOT DIRECTLY OR IMPLIEDLY REPEAL SUCH APPROVAL.  THE
PROHIBITION OF UNREASONABLE RESTRAINTS OF TRADE AND THE APPROVAL OF
EXCLUSIVE RIGHTS OF INVENTORS TO THEIR INVENTIONS FOR LIMITED PERIODS
OF TIME CONTINUED TO EXIST TOGETHER.  THIS WAS NOTHING NEW.  AS LONG AS
THE INVENTORS KEPT WITHIN THEIR STATUTORY EXCLUSIVE RIGHTS, THEY WERE
NOT ENGAGING IN UNREASONABLE RESTRAINTS OF TRADE VIOLATING THE SHERMAN
ACT. 

THERE WAS NOTHING TO INDICATE AN INTENT THAT THE GENERAL LANGUAGE OF
THE SHERMAN ACT WAS TO CHANGE THE NATION'S TRADITIONAL AND SPECIFICALLY
STATED POLICY TOWARDS INVENTIONS.  THAT POLICY HAD BEEN WIDELY REGARDED
AS HAVING MADE A MAJOR CONTRIBUTION TO THE NATION'S EXCEPTIONAL
ECONOMIC PROGRESS.  THE SHERMAN ACT UNQUESTIONABLY APPLIED TO ANY ABUSE
OF A PATENTEE'S EXCLUSIVE RIGHTS WHICH EXCEEDED THE LIMIT OF THOSE
RIGHTS AND WHICH AMOUNTED TO AN UNREASONABLE RESTRAINT OF INTERSTATE
TRADE.  HOWEVER, THERE WAS NOTHING TO INDICATE THAT THE SHERMAN ACT
RESTRICTED THE TRADITIONAL PATENT RIGHTS.  BEMENT V. NATIONAL HARROW
CO., SUPRA, AT P. 92. 

                     LIMITED LICENSE AGREEMENTS. 

THE PRIMARY ISSUE IN THIS CASE, THEREFORE, IS TO DETERMINE WHETHER OR
NOT LINE BY THE ISSUANCE OF ITS RESTRICTED LICENSES HAS THEREBY SOUGHT
TO EXERCISE ANY RIGHT THAT IS IN EXCESS OF THE EXCLUSIVE RIGHT SECURED
TO LINE BY THE PATENT LAWS OF THE UNITED STATES.  IF IT HAS DONE SO,
THEN SUCH LICENSES, LIKE OTHER AGREEMENTS, MUST BE SCRUTINIZED TO
DETERMINE WHETHER OR NOT THEY CREATE AN UNREASONABLE RESTRAINT OF TRADE
IN VIOLATION OF THE SHERMAN ACT. 

THE FIRST CONSIDERATION IS THE RELATION OF THE SHERMAN ACT TO
PROVISIONS IN A LICENSE AGREEMENT WHICH PLACE LIMITATIONS - AS IN THE
BEMENT AND GENERAL ELECTRIC CASES - UPON THE PRICES WHICH MAY BE
CHARGED BY THE LICENSEE FOR PRODUCTS MADE AND SOLD BY IT UNDER THE
PROTECTION OF ITS LICENSE.  THE ISSUE CORRESPONDS TO THAT RAISED BY THE
WESTINGHOUSE LICENSE IN THE GENERAL ELECTRIC CASE.  FN14  THE SHERMAN
ACT'S INVALIDATION OF AGREEMENTS IN RESTRAINT OF TRADE APPLIES ONLY TO
THOSE IN UNREASONABLE RESTRAINT OF TRADE AND THE DEFINITION OF SUCH
UNREASONABLENESS DEPENDS LARGELY UPON THE COMMON LAW MEANING OF
RESTRAINT OF TRADE.  FN15  THIS PERMITS SUCH INVALIDATION WHERE, FOR
EXAMPLE, A LICENSE IS A MERE SUBTERFUGE FOR PRICE FIXING WHICH
OTHERWISE WOULD AMOUNT TO UNREASONABLE RESTRAINT OF TRADE IN VIOLATION
OF THE SHERMAN ACT.  SEE UNITED STATES V. U.S. GYPSUM CO., POST, P.
364, DECIDED CONCURRENTLY WITH THIS CASE.  FN16 

THE SHERMAN ACT'S PROHIBITION OF UNREASONABLE RESTRAINTS OF TRADE,
ACCORDINGLY, WOULD NOT INVALIDATE AN UNCONDITIONAL, NONEXCLUSIVE
LICENSE AGREEMENT WHICH SERVED ONLY TO RELEASE THE LICENSEE FROM THE
RIGHT OF THE PATENT HOLDER TO EXCLUDE HIM FROM MAKING, USING OR SELLING
A PATENTED ARTICLE.  THE ORIGINAL, EXCLUSIVE RIGHT OF THE PATENT
HOLDER, BEING SECURED TO HIM THROUGH THE TERMS OF HIS PATENT, WAS NOT
IN VIOLATION OF THE SHERMAN ACT.  ACCORDINGLY, HIS RELEASE OR WAIVER OF
A PART OF THAT EXCLUSIVE RIGHT BY ISSUANCE OF AN UNCONDITIONAL,
NONEXCLUSIVE LICENSE, PER SE, DECREASED RATHER THAN INCREASED THE
STATUTORY RESTRAINT OF TRADE TO WHICH HE WAS ENTITLED. 

THE NEXT QUESTION IS WHETHER THE INSERTION IN SUCH A LICENSE OF SOME
LIMITATION UPON THE LICENSEE'S RIGHT TO SELL THE ARTICLES MADE BY THE
LICENSEE UNDER THE PATENT, PER SE, CONVERTS THIS OTHERWISE LAWFUL
AGREEMENT INTO AN UNREASONABLE RESTRAINT OF TRADE VIOLATIVE OF THE
SHERMAN ACT.  THE ANSWER IS NO. JUST AS AN UNLIMITED LICENSE IS A
PARTIAL, BUT LAWFUL, RELAXATION OF THE LAWFUL RESTRAINT OF TRADE
IMPOSED BY THE PATENT, SO A LIMITED LICENSE IS BUT A CORRESPONDINGLY
LESS RELAXATION OF THAT SAME RESTRAINT. 

THE FACT THAT THE LIMITATION IN THE LICENSE IS A LIMITATION ON THE
PRICE WHICH MAY BE CHARGED BY THE LICENSEE IN MAKING SALES OF THE
ARTICLE MADE BY THE LICENSEE UNDER THE PROTECTION OF THE PATENT DOES
NOT CHANGE THE ANSWER, PROVIDED THE PRICE PRESCRIBED IS "NORMALLY AND
REASONABLY ADAPTED TO SECURE PECUNIARY REWARD FOR THE PATENTEE'S
MONOPOLY."  FN17  HERE AGAIN, THE RESTRAINT OF TRADE IMPOSED BY THE
PATENT ITSELF IS LAWFUL.  THEREFORE, AS LONG AS THE LICENSE AGREEMENT
HAS ONLY THE EFFECT OF REDUCING THE LAWFUL RESTRAINT IMPOSED BY THE
PATENT, SUCH AGREEMENT MERELY CONVERTS THE ORIGINAL LAWFUL RESTRAINT
INTO A LESSER RESTRAINT, EQUALLY LAWFUL. 

SUCH AGREEMENTS SHOULD BE CAREFULLY SCRUTINIZED TO MAKE SURE THAT
THEY DO NOT INTRODUCE NEW RESTRICTIONS WHICH, AS JUDICIALLY CONSTRUED,
UNREASONABLY RESTRAIN TRADE AND THUS VIOLATE THE SHERMAN ACT.  IN THE
INSTANT CASE THE FINDINGS ELIMINATE SUCH POSSIBILITIES AND THUS REDUCE
THE ISSUE HERE TO ONE COMPARABLE WITH THE ISSUE IN THE BEMENT AND
GENERAL ELECTRIC CASES.    THIS BRINGS US TO A FURTHER DISCUSSION OF
THE NATURE OF THE LICENSE IN THE PRESENT CASE AND OF THE PRECISE
LIMITATIONS CONTAINED IN IT.  THIS REQUIRES, FIRST OF ALL, A
CONSIDERATION OF THE NATURE OF THE EXCLUSIVE RIGHT TO MAKE, USE AND
SELL THE PATENTED PRODUCT.  THE PRECISE NATURE OF SUCH A "PATENT RIGHT"
HAS BEEN DESCRIBED AS FOLLOWS BY CHIEF JUSTICE TAFT IN A UNANIMOUS
OPINION OF THIS COURT:    "IT IS THE FACT THAT THE PATENTEE HAS
INVENTED OR DISCOVERED SOMETHING USEFUL AND THUS HAS THE COMMON LAW
RIGHT TO MAKE, USE AND VEND IT HIMSELF WHICH INDUCES THE GOVERNMENT TO
CLOTHE HIM WITH POWER TO EXCLUDE EVERYONE ELSE FROM MAKING, USING OR
VENDING IT.  IN OTHER WORDS, THE PATENT CONFERS ON SUCH COMMON LAW
RIGHT THE INCIDENT OF EXCLUSIVE ENJOYMENT AND IT IS THE COMMON LAW
RIGHT WITH THIS INCIDENT WHICH A PATENTEE OR AN ASSIGNEE MUST HAVE (IN
ORDER TO BRING A SUIT FOR INFRINGEMENT).  THAT IS THE IMPLICATION OF
THE DESCRIPTIVE WORDS OF THE GRANT 'THE EXCLUSIVE RIGHT TO MAKE, USE
AND VEND THE INVENTION.'  THE GOVERNMENT IS NOT GRANTING THE COMMON LAW
RIGHT TO MAKE, USE AND VEND, BUT IT IS GRANTING THE INCIDENT OF
EXCLUSIVE OWNERSHIP OF THAT COMMON LAW RIGHT, WHICH CAN NOT BE ENJOYED
SAVE WITH THE COMMON LAW RIGHT.  A PATENT CONFERS A MONOPOLY.  SO THIS
COURT HAS DECIDED IN THE PAPER BAG CASE, SUPRA (210 U.S. 405), AND IN
MANY OTHER CASES.  THE IDEA OF MONOPOLY HELD BY ONE IN MAKING, USING
AND VENDING CONNOTES THE RIGHT IN HIM TO DO THAT THING FROM WHICH HE
EXCLUDES OTHERS."  CROWN CO. V. NYE TOOL WORKS, 261 U.S. 24, 36-37. 

THIS ANALYSIS IS THE KEY TO THE ISSUE BEFORE US.  IT DEMONSTRATES
THAT THE COMMON LAW RIGHT TO MAKE, USE AND SELL THE PRODUCT OF AN
UNPATENTED INVENTION EXISTS WITHOUT ANY RIGHT TO EXCLUDE OTHERS FROM SO
MAKING, USING OR SELLING SUCH PRODUCT.  THE ADDITIONAL "EXCLUSIVE
RIGHT," OR SO-CALLED "PATENT RIGHT," WHICH IS ADDED TO THE COMMON LAW
RIGHT OF THE INVENTOR IS ADDED BY AUTHORITY OF THE CONSTITUTION AND OF
THE FEDERAL STATUTES, SO AS TO PROMOTE THE PROGRESS OF SCIENCE, THE
USEFUL ARTS AND, NO DOUBT, THE GENERAL WELFARE.  THE PATENT OR ANY
INTEREST THEREIN MAY BE ASSIGNED.  R.S. SEC. 4898, AS AMENDED, 55 STAT.
634, 35 U.S.C. (SUPP. V, 1946) SEC. 47.  FN18  AN ASSIGNEE, EXERCISING
HIS RIGHT TO EXCLUDE OTHERS DURING THE LIFE OF THE PATENT FROM MAKING,
USING OR SELLING ARTICLES UNDER PROTECTION OF THE PATENT, DOES NOT
PRACTICE A RESTRAINT OF TRADE IN VIOLATION OF THE SHERMAN ACT ANY MORE
THAN WOULD HIS ASSIGNOR IF THE ASSIGNMENT HAD NOT BEEN MADE. 

ANY ATTEMPTED ASSIGNMENT OR TRANSFER SHORT OF THOSE INDICATED IN THE
STATUTE "IS A MERE LICENSE, GIVING THE LICENSEE NO TITLE IN THE PATENT,
AND NO RIGHT TO SUE AT LAW IN HIS OWN NAME FOR AN INFRINGEMENT."  FN19
THE LEGAL POSITION OF THE HOLDER OF A SIMPLE, UNCONDITIONAL,
NONEXCLUSIVE LICENSE IS IMPORTANT.  FN20  BEFORE HIS RECEIPT OF HIS
LICENSE, HE HAD THE COMMON LAW RIGHT TO MAKE, USE AND SELL THE PATENTED
ARTICLE AS WELL AS OTHER ARTICLES, EXCEPT TO THE IMPORTANT EXTENT
PREVENTED BY THE PATENTEE'S EXCLUSIVE RIGHTS.  THE LICENSE CHANGED THAT
POSITION BY WITHDRAWING FROM THE LICENSEE, TO THE EXTENT OF THE
LICENSE, THE RESTRICTION WHICH THE PATENT PLACED UPON HIM. 
ACCORDINGLY, TO THE EXTENT OF HIS LICENSE, THE RESTRAINT PLACED UPON
TRADE BY THE PATENT WAS DIMINISHED.  IN RELATION TO THE SHERMAN ACT HIS
LICENSE, INSTEAD OF CREATING AN ADDED GROUND FOR ASSERTING A VIOLATION
OF THE SHERMAN ACT, THUS, PER SE, RELAXED AN EXISTING RESTRAINT OF
TRADE.  THE PREVIOUS RESTRAINT IMPOSED BY THE PATENT WAS NOT A
VIOLATION OF THE SHERMAN ACT AND, THEREFORE, THE MERE LESSENING OF THAT
RESTRAINT WAS NOT A VIOLATION OF THAT ACT.  THE IMPORTANT POINT IS THE
NEED TO SEE TO IT THAT THE LESSENING OF THE RESTRAINT RESULTING FROM
THE ISSUANCE OF EITHER AN ABSOLUTE LICENSE OR A LIMITED LICENSE IS, IN
FACT, NO MORE THAN A MERE WITHDRAWAL OF THE LAWFUL RESTRAINT IMPOSED BY
THE PATENT AND IS NOT EITHER DIRECTLY OR INDIRECTLY AN IMPOSITION OF A
NEW RESTRAINT NOT WITHIN THE AMBIT OF THE PATENT RIGHT.  AN
UNCONDITIONAL, NONEXCLUSIVE AND ROYALTY-FREE LICENSE PRESENTS, PER SE,
NO NEED FOR SPECIAL SCRUTINY UNDER THE SHERMAN ACT.  A ROYALTY-YIELDING
LICENSE PRESENTS THE ISSUE SUGGESTED BY THE LANGUAGE IN THE GENERAL
ELECTRIC CASE.  IN ORDER NOT TO VIOLATE THE SHERMAN ACT, THE ROYALTY
MUST BE "NORMALLY AND REASONABLY ADAPTED TO SECURE PECUNIARY REWARD FOR
THE PATENTEE'S MONOPOLY."  FN21  HOWEVER, AS WELL EXPLAINED IN THAT
CASE, A ROYALTY MAY NOT, BY ITSELF, SATISFY THE NEEDS OF THE PATENT
HOLDER.  LIMITATIONS ON THE PRICE OF SALES BY THE LICENSEE OF PRODUCTS
MADE BY THE LICENSEE UNDER THE PATENT MAY BE THE BEST, OR EVEN THE
ONLY, CONDITION THAT IS THUS "NORMALLY AND REASONABLY ADAPTED" TO THE
SITUATION. 

THE FOLLOWING STATEMENTS ILLUSTRATE THE DIRECTNESS WITH WHICH THIS
COURT REPEATEDLY HAS DECIDED IN FAVOR OF THE VALIDITY OF LIMITED
LICENSES WHEN THAT QUESTION HAS BEEN BEFORE IT: 

"  ...  THE GENERAL RULE IS ABSOLUTE FREEDOM IN THE USE OR SALE OF
RIGHTS UNDER THE PATENT LAWS OF THE UNITED STATES.  THE VERY OBJECT OF
THESE LAWS IS MONOPOLY, AND THE RULE IS, WITH FEW EXCEPTIONS, THAT ANY
CONDITIONS WHICH ARE NOT IN THEIR VERY NATURE ILLEGAL WITH REGARD TO
THIS KIND OF PROPERTY, IMPOSED BY THE PATENTEE AND AGREED TO BY THE
LICENSEE FOR THE RIGHT TO MANUFACTURE OR USE OR SELL THE ARTICLE, WILL
BE UPHELD BY THE COURTS.  THE FACT THAT THE CONDITIONS IN THE CONTRACTS
KEEP UP THE MONOPOLY OR FIX PRICES DOES NOT RENDER THEM ILLEGAL." 
BEMENT V. NATIONAL HARROW CO., SUPRA, AT P. 91. 

"AS WAS SAID IN UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476,
489, THE PATENTEE MAY GRANT A LICENSE 'UPON ANY CONDITION THE
PERFORMANCE OF WHICH IS REASONABLY WITHIN THE REWARD WHICH THE PATENTEE
BY THE GRANT OF THE PATENT IS ENTITLED TO SECURE.'  THE RESTRICTION
HERE IMPOSED (UPON THE LICENSEE TO MANUFACTURE AND TO SELL THE PATENTED
ARTICLE FOR CERTAIN USES ONLY) IS OF THAT CHARACTER.  THE PRACTICE OF
GRANTING LICENSES FOR A RESTRICTED USE IS AN OLD ONE, SEE RUBBER
COMPANY V. GOODYEAR, 9 WALL.  788, 799, 800; GAMEWELL FIRE-ALARM
TELEGRAPH CO. V. BROOKLYN, 14 F. 255.  SO FAR AS APPEARS, ITS LEGALITY
HAS NEVER BEEN QUESTIONED."  GENERAL TALKING PICTURES CORP. V. WESTERN
ELECTRIC CO., 305 U.S. 124, 127. 

THE NORMALITY, REASONABLENESS AND PRACTICAL NECESSITY FOR INSERTING A
PRICE-LIMITING CONDITION IN CERTAIN LICENSES, WITHOUT TRESPASSING UPON
THE PROHIBITED AREA OF UNLAWFUL RESTRAINTS OF TRADE, IS EFFECTIVELY
SUMMARIZED IN THE GENERAL ELECTRIC CASE, AT P. 490: 

"IF THE PATENTEE GOES FURTHER, AND LICENSES THE SELLING OF THE
ARTICLES, MAY HE LIMIT THE SELLING BY LIMITING THE METHOD OF SALE AND
THE PRICE?  WE THINK HE MAY DO SO, PROVIDED THE CONDITIONS OF SALE ARE
NORMALLY AND REASONABLY ADAPTED TO SECURE PECUNIARY REWARD FOR THE
PATENTEE'S MONOPOLY.  ONE OF THE VALUABLE ELEMENTS OF THE EXCLUSIVE
RIGHT OF A PATENTEE IS TO ACQUIRE PROFIT BY THE PRICE AT WHICH THE
ARTICLE IS SOLD.  THE HIGHER THE PRICE, THE GREATER THE PROFIT, UNLESS
IT IS PROHIBITORY.  WHEN THE PATENTEE LICENSES ANOTHER TO MAKE AND
VEND, AND RETAINS THE RIGHT TO CONTINUE TO MAKE AND VEND ON HIS OWN
ACCOUNT, THE PRICE AT WHICH HIS LICENSEE WILL SELL WILL NECESSARILY
AFFECT THE PRICE AT WHICH HE CAN SELL HIS OWN PATENTED GOODS.  IT WOULD
SEEM ENTIRELY REASONABLE THAT HE SHOULD SAY TO THE LICENSEE, 'YES, YOU
MAY MAKE AND SELL ARTICLES UNDER MY PATENT, BUT NOT SO AS TO DESTROY
THE PROFIT THAT I WISH TO OBTAIN BY MAKING THEM AND SELLING THEM
MYSELF.'  HE DOES NOT THEREBY SELL OUTRIGHT TO THE LICENSEE THE
ARTICLES THE LATTER MAY MAKE AND SELL, OR VEST ABSOLUTE OWNERSHIP IN
THEM.  HE RESTRICTS THE PROPERTY AND INTEREST THE LICENSEE HAS IN THE
GOODS HE MAKES AND PROPOSES TO SELL."  FN22 

DURING THE HEARINGS OF THE TEMPORARY NATIONAL ECONOMIC COMMITTEE,
TESTIMONY WAS RECEIVED FROM THE COMMISSIONER OF PATENTS AND
MANUFACTURERS FAMILIAR WITH THE COMMERCIAL DEVELOPMENT OF PATENTED
PRODUCTS BEARING ON THE REASONABLENESS AND PROPRIETY OF PRICE
LIMITATIONS IN PATENT LICENSES COMPARABLE TO THOSE IN THE PRESENT
CASE.  IT WAS TO THE EFFECT THAT COMMERCIALLY SUCCESSFUL MECHANICAL
INVENTIONS, SUCH AS THOSE IN THE ELECTRICAL, COMMUNICATIONS AND
AUTOMOTIVE INDUSTRIES, USUALLY REPRESENT NOT ONLY THE INTRINSIC MERIT
OF THE INVENTIONS THEMSELVES BUT A SUBSTANTIAL INVESTMENT IN RESEARCH,
EXPERIMENTATION AND PROMOTION.  IF, AFTER THE DISCLOSURE OF THE
INVENTION, OTHERS ARE TO BE LICENSED TO MAKE THE PATENTED ARTICLE, THE
COSTS OF PRODUCTION BY SUCH LICENSEES WILL REFLECT NONE OF THE
INVESTMENTS ABOVE-MENTIONED.  IF THE PATENTEE IS TO BE REIMBURSED FOR
HIS EXPENDITURES, HE WILL NEED, THEREFORE, TO SECURE THE BENEFIT OF A
ROYALTY SUFFICIENT TO ACCOMPLISH THIS OR OF A RESTRICTION ON THE PRICE
AT WHICH LICENSEES MAY SELL THEIR PRODUCTS UNDER THE PATENT.  THIS
PRICE WOULD HAVE TO BE ONE THAT WOULD ENABLE THE PATENTEE TO
MANUFACTURE AND SELL THE ARTICLE IN SUCH QUANTITIES AND AT SUCH PRICES
AS WOULD PRODUCE A RETURN TO HIM COMMENSURATE WITH HIS INVESTMENT IN
IT.  HE MIGHT PRESCRIBE BOTH A ROYALTY AND A RESTRICTION.  AS LONG AS
THE ROYALTIES AND THE PRICES WERE "NORMALLY AND REASONABLY ADAPTED TO
SECURE PECUNIARY REWARD FOR THE PATENTEE'S MONOPOLY"  FN23  THEY WOULD
PERFORM MUCH THE SAME FUNCTION.  FN24 

IN CASES WHERE PATENTS ARE OWNED BY COMPARATIVELY SMALL INDUSTRIAL
PRODUCERS BUT LICENSES ARE TO BE ISSUED BY THEM TO COMPARATIVELY LARGE
INDUSTRIAL PRODUCERS IN THE SAME FIELD, THE NECESSITY FOR EARLY
REIMBURSEMENT OF THE PATENT OWNERS FOR THEIR DEVELOPMENT COSTS IS CLEAR
AND THE DANGER THAT A LARGE LICENSEE WILL UNDERSELL HIS SMALLER
LICENSOR IS OBVIOUS.  THIS IS THE SITUATION IN THE PRESENT CASE.  THE
GENERAL ELECTRIC COMPANY AND THE WESTINGHOUSE ELECTRIC CORPORATION ARE
AMONG THE LICENSEES OF THE MUCH SMALLER PATENT HOLDERS, LINE AND
SOUTHERN.  SIMILARLY, WHERE OUTSIDE CAPITAL IS NEEDED TO FINANCE THE
DEVELOPMENT OF AN INVENTION, IT IS NORMAL AND REASONABLE FOR THE
INVESTORS TO REQUIRE NOT ONLY A VALID PATENT BUT ALSO TO INSIST THAT
ANY LICENSES ISSUED DURING THE INITIAL OPERATING PERIOD SHALL CONTAIN
SUCH PRICE LIMITATIONS AS WILL ALLOW THE PATENT HOLDER TO AMORTIZE HIS
ORIGINAL INVESTMENT WITHIN A REASONABLE TIME.  IN THIS CASE, FINDING OF
FACT NO. 32 SHOWS THAT "THE PRICE LIMITATION PROVISIONS CONTAINED IN
THE VARIOUS LICENSE AGREEMENTS HERE IN EVIDENCE WERE INSISTED UPON BY
THE PATENT OWNER AND WERE INTENDED AND REASONABLY ADAPTED TO PROTECT
ITS OWN BUSINESS AND SECURE PECUNIARY REWARD FOR THE PATENTEE'S
MONOPOLY."  FN25 

THE FOLLOWING STATEMENT BY CONWAY P. COE, COMMISSIONER OF PATENTS,
BEFORE THE TEMPORARY NATIONAL ECONOMIC COMMITTEE IN 1939, REINFORCES
THE ABOVE CONCLUSIONS: 

"SPECULATIVE CAPITAL MUST BE ENCOURAGED TO FALL IN BEHIND A NEW
ENTERPRISE AND THIS IS TRUE WHETHER THE ENTERPRISE IS WHOLLY NEW OR
REPRESENTS MERELY AN EXPANSION OF AN ESTABLISHED ORGANIZATION.  SOME
TESTIMONY HAS BEEN OFFERED TO THIS COMMITTEE BY REPRESENTATIVES OF
LARGE CORPORATIONS THAT THEY WOULD CONTINUE TO INVENT, AND INVENT, AND
INVENT, AND RESEARCH, RESEARCH, AND RESEARCH WHETHER OR NOT THEY WERE
REWARDED BY THE PATENT GRANT, BUT, IF YOU WILL INVESTIGATE, I BELIEVE
YOU WILL FIND THAT WHENEVER THESE LARGE CORPORATIONS, THEMSELVES FIRMLY
ESTABLISHED, UNDERTAKE A NEW DEVELOPMENT, THAT DEVELOPMENT IS LIKELY TO
BE FOUNDED UPON PATENT PROTECTION.  WHATEVER OPINIONS HAVE BEEN
EXPRESSED TO THIS COMMITTEE OR MAY HEREAFTER BE EXPRESSED AS TO WHETHER
OR NOT THE INVENTOR WILL CONTINUE TO INVENT WITHOUT THE PATENT SYSTEM,
I THINK I CAN PRESENT TO YOU INDISPUTABLE EVIDENCE THAT SPECULATIVE
CAPITAL WILL NOT BACK NEW INVENTIONS WITHOUT THE PATENT PROTECTION. 
AND IN THE FINAL ANALYSIS THIS IS THE CRUX AND THE MOST IMPORTANT THING
IN THE WHOLE PATENT QUESTION."  N26  HEARINGS BEFORE THE TEMPORARY
NATIONAL ECONOMIC COMMITTEE, SUPRA, AT PP. 857-858. 

THE FOREGOING SUPPORTS THE CONCLUSIONS REACHED IN THE BEMENT AND
GENERAL ELECTRIC CASES, SUPRA. THE BASIS FOR SUCH SUPPORT IS
SUFFICIENTLY BROAD TO LEAD TO THE SAME RESULT IN THE PRESENT CASE. 

SUBLICENSES AND CROSS-LICENSES. 

UNDER THE FOREGOING PRINCIPLES AND AUTHORITIES, A SIMPLE PRICE
LIMITING PATENT LICENSE, IN WHICH THE PRICE LIMITATIONS MEET THE TEST
STATED IN THE GENERAL ELECTRIC CASE, IS A LAWFUL AGREEMENT.  SUCH A
LICENSE WOULD INVOLVE, AS A POSSIBLE RESTRAINT OF TRADE, ONLY THE
EXCLUSIVE RIGHT TO MAKE, USE AND SELL THE PATENTED PRODUCT.  THAT
RESTRAINT WOULD EXIST BY VIRTUE OF THE STATUTE AND CONSTITUTIONAL
PROVISION LONG ANTEDATING THE SHERMAN ACT.  IF THE LIMITATIONS IN A
LICENSE REACH BEYOND THE SCOPE OF THE STATUTORY PATENT RIGHTS, THEN
THEY MUST BE TESTED BY THE TERMS OF THE SHERMAN ACT.  ASSUMING THAT IN
THE INSTANT CASE THE PRICE LIMITATIONS DO NOT REACH BEYOND THE
RESTRAINT OF THE PATENT, THE NEXT QUESTION IS:  DOES THE ADDITIONAL
SUBLICENSE ISSUED BY LINE UNDER THE SOUTHERN PATENT MAKE A DIFFERENCE? 
THE ANSWER IS NO. 

THE SUBLICENSE, PER SE, FURTHER DIMINISHES THE STATUTORY RESTRAINT OF
TRADE IMPOSED BY THE PATENT LAW.  IT ADDS A RELEASE FROM THE RESTRAINT
OF SOUTHERN'S PATENT.  LINE'S AUTHORITY TO ISSUE THE SUBLICENSE WAS AN
EXPRESS GRANT BY SOUTHERN TO LINE OF AN EXCLUSIVE RIGHT TO ISSUE IT.
PER SE, THIS SUBLICENSE CERTAINLY AMOUNTS TO NO MORE THAN ANOTHER
LICENSE UNDER ANOTHER PATENT.  IN THE INSTANT CASE IT IS UNDER A
COMPLEMENTARY PATENT WITHOUT WHICH LINE'S LICENSE WOULD BE WITHOUT
COMMERCIAL VALUE.  FOR THAT VERY REASON IT IS A REASONABLE AND
NECESSARY PART OF THE TRANSACTION.  IN BOTH THE BEMENT AND GENERAL
ELECTRIC CASES, THE LICENSE IN QUESTION WAS ISSUED NOT MERELY UNDER
ONE, BUT UNDER MANY PATENTS HELD BY THE LICENSOR.  IN THOSE CASES,
APPARENTLY, IT WAS NOT THOUGHT NECESSARY TO QUESTION THE RELATION OF
THOSE PATENTS TO ONE ANOTHER OR THE AUTHORITY OF THE LICENSOR TO ISSUE
THE LICENSE UNDER EACH OF THEM.  IN ANY EVENT, THERE HARDLY COULD HAVE
EXISTED IN THOSE CASES ANY CLOSER RELATIONSHIP BETWEEN THE PATENTS
INVOLVED OR A MORE ESSENTIAL AND NORMAL REASON, OF A PATENT NATURE, FOR
COMBINING RIGHTS UNDER THEM THAN EXISTED HERE BETWEEN LINE'S AND
SOUTHERN'S COMPLEMENTARY PATENTS.  EXCEPT FOR THE CROSS-LICENSING
FEATURE, TO BE NEXT CONSIDERED, THE SITUATION IN RELATION TO THE
SHERMAN ACT IS THE SAME HERE AS THOUGH LINE HAD RECEIVED AN ASSIGNMENT
OF SOUTHERN'S PATENT AND ISSUED LICENSES UNDER IT AS WELL AS UNDER
LINE'S PATENT.    IN THE PRESENT CASE, THERE ARE TEN LICENSEE
DEFENDANTS INSTEAD OF ONE AS IN EACH OF THE BEMENT AND GENERAL ELECTRIC
CASES.  IN VIEW OF THE POSITIVE FINDING THAT THERE WAS NO AGREEMENT OR
UNDERSTANDING AMONG THE LICENSEES AMOUNTING TO AN UNREASONABLE
RESTRAINT OF TRADE, THIS MERE MULTIPLICATION OF ONE LICENSE BY TEN
PRODUCES A REPETITION OF THE SAME ISSUE RATHER THAN A DIFFERENT ISSUE. 
IT IS APPARENT ALSO FROM THE RECORD IN THE GENERAL ELECTRIC CASE THAT,
IN THAT CASE, IN ADDITION TO THE WESTINGHOUSE LICENSE, THERE WERE
LICENSES TO 13 OTHER MANUFACTURERS, WHICH HAD BEEN ISSUED BY THE
LICENSOR, ALTHOUGH THE LICENSEES UNDER THEM WERE NOT MADE PARTIES TO
THE SUIT.  15 F.2D 715, 716. 

IT IS SUGGESTED ALSO THAT THE BEMENT AND GENERAL ELECTRIC RULE DOES
NOT APPLY BECAUSE THERE IS A CROSS-LICENSING AGREEMENT BETWEEN LINE AND
SOUTHERN.  THE SUGGESTION APPARENTLY IS THAT SUCH AN AGREEMENT, PER SE,
REACHES BEYOND THE SCOPE OF THE EXCLUSIVE RIGHTS OF THE PARTIES UNDER
THE PATENTS AND CONVERTS THE PRICE LIMITATIONS IN THE RESPECTIVE
LICENSES INTO UNREASONABLE RESTRAINTS OF TRADE VIOLATING THE SHERMAN
ACT. 

THE CROSS-LICENSE FROM SOUTHERN CARRIES NO PRICE-LIMITING FEATURE. 
AT MOST IT IS A ROYALTY-FREE CROSS-LICENSE ISSUED TO LINE IN
CONSIDERATION OF LINE'S LICENSE TO SOUTHERN.  IT IS ACCOMPANIED BY A
GRANT FROM SOUTHERN TO LINE OF AN EXCLUSIVE LICENSE TO GRANT
SUBLICENSES UNDER SOUTHERN'S PATENT.  PROVISION IS MADE ALSO FOR THE
EQUAL DIVISION BETWEEN SOUTHERN AND LINE OF SUCH ROYALTIES AS SHALL BE
RECEIVED BY LINE UPON PRODUCTS MADE AND SOLD BY THE RESPECTIVE
LICENSEES UNDER THE SOUTHERN AND LINE PATENTS. 

THESE SUBLICENSES AND THE ROYALTIES DERIVED FROM THEM DO NOT,
HOWEVER, INCREASE THE RESTRAINTS ON TRADE BEYOND THOSE RESTRAINTS WHICH
ARE INHERENT IN THE RESPECTIVE PATENTS.  IN FACT, EACH ORIGINAL LICENSE
DECREASED THOSE RESTRAINTS UNDER LINE'S PATENT AND EACH SUBLICENSE DID
THE SAME UNDER SOUTHERN'S PATENT.  BECAUSE OF THE COMPLEMENTARY
RELATIONSHIP BETWEEN THE PATENTS, THESE SUBLICENSES HAVE SERVED
SUBSTANTIALLY TO REMOVE THE RESTRAINTS WHICH THE RESPECTIVE PATENTS,
WHEN HELD SEPARATELY, PUT IN THE WAY OF PRODUCTION.  THE TWO PATENTS
TOGETHER COMPLETELY COVERED THE PRODUCT.  IF THE PRICE LIMITATIONS WERE
VALID UNDER LINE'S LICENSES, THE ISSUANCE BY LINE OF THE SUBLICENSES
UNDER SOUTHERN'S PATENT HAS NO MORE EFFECT ON THE QUESTION INVOLVED IN
THIS CASE THAN IF SOUTHERN, INSTEAD OF GRANTING TO LINE AN EXCLUSIVE
RIGHT TO ISSUE SUBLICENSES UNDER SOUTHERN'S PATENT, HAD ASSIGNED THAT
PATENT TO LINE AND LINE HAD THEN ISSUED ORIGINAL LICENSES UNDER IT ON
THE SAME TERMS AS LINE ISSUED THE SUBLICENSES. 

THE NEXT CONSIDERATION IS THE EFFECT OF THE CROSS-LICENSE BY SOUTHERN
TO LINE, COUPLED WITH THE GRANT OF THE EXCLUSIVE RIGHT TO ISSUE THE
ABOVE-MENTIONED SUBLICENSES UNDER SOUTHERN'S PATENT AND THE DIVISION OF
CERTAIN ROYALTIES RECEIVED BY LINE.  WHERE, AS HERE, THERE IS NO
AGREEMENT, COURSE OF DEALING OR OTHER CIRCUMSTANCE THAN THE EXISTENCE
OF THE CROSS-LICENSES BETWEEN COMPLEMENTARY PATENT HOLDERS, THE CROSS
LICENSING AGREEMENTS DO NOT, PER SE, REACH BEYOND THE SCOPE OF THE
PATENT RIGHTS. 

PATENT POOLS, ESPECIALLY THOSE INCLUDING UNRELATED OR DISTANTLY
RELATED PATENTS AND INVOLVING THE ISSUANCE OF MANY FORMS OF ROYALTY
FREE, ROYALTY-BEARING OR PRICE-LIMITING LICENSES AND CROSS-LICENSES,
MIGHT PRESENT A DIFFERENT PICTURE FROM THAT IN THIS CASE.  SUCH
ARRANGEMENTS MIGHT BE BUT A SCREEN FOR, OR INCIDENT TO, AN UNLAWFUL
AGREEMENT IN RESTRAINT OF TRADE VIOLATING THE SHERMAN ACT.  HERE WE
HAVE NO SUCH FACTS.  THE FINDINGS ELIMINATE ALL BASES FOR THE CLAIM OF
INVALIDITY EXCEPT THE TERMS OF THE LICENSE AGREEMENTS, PER SE.  WE ARE
NOT HERE CONFRONTED WITH THE EFFECT OF CROSS-LICENSES BETWEEN UNRELATED
PATENTS.  HERE WE HAVE ONLY THAT NATURAL SITUATION, COMMON UNDER OUR
PATENT LAWS, WHERE TWO OR MORE COMPLEMENTARY PATENTS ARE SEPARATELY
OWNED.  ONE IS FOR AN IMPROVEMENT THAT IS COMMERCIALLY ESSENTIAL TO THE
OTHER.  IN SUCH A CASE ONE SOLUTION IS TO COMBINE THE OWNERSHIP OF THE
TWO BY PURCHASE AND COMPLETE ASSIGNMENT.  THAT, PER SE, WOULD NOT
INVOLVE AN UNLAWFUL RESTRAINT OF TRADE. 

THE SOLUTION IN THE INSTANT CASE WAS EVEN MORE NATURAL THAN A
CONSOLIDATION OF THE PATENTS BY PURCHASE.  IT CONDUCED EVEN MORE TO THE
MAINTENANCE OF COMPETITION.  EACH PATENTEE GRANTED TO THE OTHER A
NONEXCLUSIVE, ROYALTY-FREE LICENSE.  THIS CROSS-LICENSING AMOUNTED TO A
WAIVER BY EACH PATENT HOLDER OF HIS RIGHT TO EXCLUDE THE OTHER FROM
MAKING, USING OR SELLING THE PATENTED PRODUCT.  THIS RESULTED IN A
DIMINUTION OF THE RESTRAINT CREATED BY THE PATENT STATUTE.  THIS, PER
SE, WAS, THEREFORE, WELL WITHIN THE SCOPE OF THE PATENT AND NOT A
VIOLATION OF THE SHERMAN ACT.  BOTH PATENTEES BECAME PRODUCERS. 

UNLESS THE TERMS OF THE CROSS-LICENSES REACH BEYOND THOSE THAT ARE
NORMALLY AND REASONABLY ADAPTED TO THE PATENT RELATIONSHIPS OF THE
PARTIES, THE CROSS-LICENSES ARE NO MORE OUTSIDE OF THE PROTECTION OF
THE PATENT LAW THAN WOULD BE DIRECT LICENSES.  A REASONABLE PRICE
LIMITING PROVISION IN AT LEAST ONE OF TWO CROSS-LICENSES IS JUST AS
NORMAL AND REASONABLE A PATENT PROVISION AS IT WOULD BE IN A DIRECT
LICENSE.  IN THE PRESENT CASE THE VALIDITY OF THE PRICE LIMITATION IN
LINE'S LICENSE TO SOUTHERN IS ENTITLED TO THE SAME JUDICIAL SUPPORT AND
FOR THE SAME REASONS AS IF NO CROSS-LICENSE HAD BEEN ISSUED IN
EXCHANGE. 

IN THE PRESENT CASE, THE NEED FOR THE PRICE-LIMITING PROVISIONS, BOTH
IN THE LICENSE TO SOUTHERN AND IN THE LICENSES TO THE OTHER TEN
DEFENDANTS, RESTS UPON THE NEED OF THE PATENT HOLDER TO PROTECT ITS
OPPORTUNITY TO CONTINUE THE MANUFACTURE OF ITS OWN PATENTED PRODUCT. 
THE SUBSTANCE OF THE SITUATION IS THAT THE PATENT HOLDER NEEDS TO
PROTECT ITSELF PRECISELY AS MUCH AND IN THE SAME WAY AS IN THE CASE OF
A DIRECT LICENSE STANDING ALONE.  THE SHERMAN ACT TRADITIONALLY TESTS
ITS VIOLATION NOT BY THE FORM BUT BY THE SUBSTANCE OF THE TRANSACTION. 

IN DISTINCTION FROM PATENT POOLS AND FROM CROSS-LICENSES BETWEEN
HOLDERS OF COMPETING OR EVEN NONCOMPETING BUT UNRELATED PATENTS, WE
HAVE HERE A CASE OF A CROSS-LICENSE AND A DIVISION OF ROYALTIES BETWEEN
HOLDERS OF PATENTS WHICH ARE COMPLEMENTARY AND VITALLY DEPENDENT UPON
EACH OTHER.  WE HAVE HERE COMPLEMENTARY PATENTS EACH OF WHICH ALONE IS
COMMERCIALLY OF LITTLE VALUE, BUT BOTH OF WHICH, TOGETHER, SPELL
COMMERCIAL SUCCESS FOR THE PRODUCT.  CROSS-LICENSES BETWEEN THEIR
HOLDERS, ON TERMS WITHIN THE NEEDS OF THEIR PATENT MONOPOLIES, ARE
ESSENTIAL TO THE REALIZATION OF THE BENEFITS CONTEMPLATED BY THE PATENT
STATUTES.  FAR FROM BEING UNLAWFUL AGREEMENTS VIOLATIVE OF THE SHERMAN
ACT, SUCH AGREEMENTS PROVIDE IN FACT THE ONLY REASONABLE MEANS FOR
RELEASING TO THE PUBLIC THE BENEFITS INTENDED FOR THE PUBLIC BY THE
PATENT LAWS.  A CROSS-LICENSE BETWEEN MUTUALLY DEADLOCKED COMPLEMENTARY
PATENTS IS, PER SE, A DESIRABLE PROCEDURE.  STANDARD OIL CO. V. UNITED
STATES, 283 U.S. 163, 170, ET SEQ. ITS VALIDITY MUST DEPEND UPON THE
TERMS AND SUBSTANCE OF THE SURROUNDING CIRCUMSTANCES. 

THE RECORD IN THE GENERAL ELECTRIC CASE DISCLOSES THAT THE LICENSE
AGREEMENT BETWEEN THE GENERAL ELECTRIC COMPANY AND WESTINGHOUSE WHICH
WAS THERE UPHELD WAS ITSELF A CROSS-LICENSING AGREEMENT.  FN27  IN
FACT, THE OPINION OF THE LOWER COURT IN THE INSTANT CASE COMMENTED ON
THAT CROSS-LICENSE AS FOLLOWS: 

"A CROSS-LICENSE AGREEMENT EXISTED BETWEEN GENERAL ELECTRIC AND
WESTINGHOUSE WHICH CONTAINED AGREEMENTS EVEN MORE RESTRICTIVE THAN THE
PRICE PROTECTION PROVISIONS OF THE CROSS-LICENSES INVOLVED IN THE CASE
AT BAR."  UNITED STATES V. LINE MATERIAL CO., 64 F.SUPP.  970, 975. 

THE OPINION IN THE GENERAL ELECTRIC CASE MAKES NO DISTINCTION BETWEEN
CROSS-LICENSES AND DIRECT LICENSES.  THAT CASE, THEREFORE, IS ITSELF A
PRECEDENT FOR UPHOLDING A CROSS-LICENSING AGREEMENT UNDER FACTS
CHARACTERIZED BELOW AS BEING "EVEN MORE RESTRICTIVE" THAN THOSE HERE
PRESENTED. 

THE ACQUISITION BY A SINGLE PARTY OF PATENTS ON NONCOMPETING MACHINES
HAS BEEN HELD NOT TO BE, PER SE, A VIOLATION OF THE SHERMAN ACT.  IN
UNITED STATES V. WINSLOW, 227 U.S. 202, 217, MR. JUSTICE HOLMES, IN A
UNANIMOUS OPINION OF THE COURT, SAID: 

"THE MACHINES ARE PATENTED, MAKING THEM IS A MONOPOLY IN ANY CASE,
THE EXCLUSION OF COMPETITORS FROM THE USE OF THEM IS OF THE VERY
ESSENCE OF THE RIGHT CONFERRED BY THE PATENTS, PAPER BAG PATENT CASE,
210 U.S. 405, 429, AND IT MAY BE ASSUMED THAT THE SUCCESS OF THE
SEVERAL GROUPS WAS DUE TO THEIR PATENTS HAVING BEEN THE BEST.  AS,  ...
THEY DID NOT COMPETE WITH ONE ANOTHER, IT IS HARD TO SEE WHY THE
COLLECTIVE BUSINESS SHOULD BE ANY WORSE THAN ITS COMPONENT PARTS.  ...
WE CAN SEE NO GREATER OBJECTION TO ONE CORPORATION MANUFACTURING
SEVENTY PER CENT. OF THREE NONCOMPETING GROUPS OF PATENTED MACHINES
COLLECTIVELY USED FOR MAKING A SINGLE PRODUCT THAN TO THREE
CORPORATIONS MAKING THE SAME PROPORTION OF ONE GROUP EACH.  THE
DISINTEGRATION AIMED AT BY THE STATUTE DOES NOT EXTEND TO REDUCING ALL
MANUFACTURE TO ISOLATED UNITS OF THE LOWEST DEGREE." 

SEE ALSO, UNITED STATES V. UNITED SHOE MACH. CO., 247 U.S. 32, 45,
51, ET SEQ.; UNITED SHOE MACH. CO. V. UNITED STATES, 258 U.S. 451, 463
464. 

IN STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163, 170-171, 175, MR.
JUSTICE BRANDEIS SPOKE AS FOLLOWS FOR A UNANIMOUS COURT (EXCEPT FOR MR.
JUSTICE STONE WHO TOOK NO PART IN THE CASE): 

"THE GOVERNMENT CONCEDES THAT IT IS NOT ILLEGAL FOR THE PRIMARY
DEFENDANTS TO CROSS-LICENSE EACH OTHER AND THE RESPECTIVE LICENSEES;
AND THAT ADEQUATE CONSIDERATION CAN LEGALLY BE DEMANDED FOR SUCH
GRANTS.  BUT IT CONTENDS THAT THE INSERTION OF CERTAIN ADDITIONAL
PROVISIONS IN THESE AGREEMENTS RENDERS THEM ILLEGAL.  IT URGES, FIRST,
THAT THE MERE INCLUSION OF THE PROVISIONS FOR THE DIVISION OF
ROYALTIES, CONSTITUTES AN UNLAWFUL COMBINATION UNDER THE SHERMAN ACT
BECAUSE IT EVIDENCES AN INTENT TO OBTAIN A MONOPOLY.  THIS CONTENTION
IS UNSOUND.  SUCH PROVISIONS FOR THE DIVISION OF ROYALTIES ARE NOT IN
THEMSELVES CONCLUSIVE EVIDENCE OF ILLEGALITY.  WHERE THERE ARE
LEGITIMATELY CONFLICTING CLAIMS OR THREATENED INTERFERENCES, A
SETTLEMENT BY AGREEMENT, RATHER THAN LITIGATION, IS NOT PRECLUDED BY
THE ACT.  ...  AN INTERCHANGE OF PATENT RIGHTS AND A DIVISION OF
ROYALTIES ACCORDING TO THE VALUE ATTRIBUTED BY THE PARTIES TO THEIR
RESPECTIVE PATENT CLAIMS IS FREQUENTLY NECESSARY IF TECHNICAL
ADVANCEMENT IS NOT TO BE BLOCKED BY THREATENED LITIGATION N28.  ... 

.         .         .         .         . 

"BUT AN AGREEMENT FOR CROSS-LICENSING AND DIVISION OF ROYALTIES
VIOLATES THE ACT ONLY WHEN USED TO EFFECT A MONOPOLY, OR TO FIX PRICES,
OR TO IMPOSE OTHERWISE AN UNREASONABLE RESTRAINT UPON INTERSTATE
COMMERCE." 

IN THE ABOVE CONTEXT, AND FOR THE REASONS PREVIOUSLY PRESENTED, IT IS
EVIDENT THAT THE AGREEMENTS EFFECTING A PRICE FIXATION WHICH THUS MAY
VIOLATE THE SHERMAN ACT ARE ONLY THOSE WHICH "IMPOSE  ...  AN
UNREASONABLE RESTRAINT UPON INTERSTATE COMMERCE," WITHIN THE MEANING OF
THE SHERMAN ACT READ IN THE LIGHT OF THE PATENT LAWS.  FN29  THE
AGREEMENTS WHICH REMAIN WITHIN THE AMBITS OF THE PATENTS TO WHICH THEY
RELATE STILL ARE LAWFUL AGREEMENTS BY VIRTUE OF THE PATENT LAWS, JUST
AS THEY HAVE BEEN THROUGHOUT THE LIFE OF OUR PATENT SYSTEM. 

           JUDICIAL AND LEGISLATIVE HISTORY SINCE THE GENERAL

                    ELECTRIC CASE. 

NEITHER THE BEMENT NOR THE GENERAL ELECTRIC CASE, SUPRA, HAS BEEN
OVERRULED AND THE REASONING UPON WHICH THEY ARE BASED HAS NOT BEEN
DIRECTLY OR INDIRECTLY REJECTED BY THIS COURT.  ON THE OTHER HAND, THIS
COURT REPEATEDLY HAS RECOGNIZED THE EXISTENCE OF THE PRINCIPLES
ANNOUNCED IN THEM.  SEE, FOR EXAMPLE, CARBICE CORP. V. AMERICAN PATENTS
DEVELOPMENT CORP., 283 U.S. 27, 31; GENERAL TALKING PICTURES CORP. V.
WESTERN ELECTRIC CORP., 305 U.S. 124, 127: 

"APPELLANTS ARGUE THAT THE DISTRIBUTORS WERE FREE TO LICENSE THE
FILMS FOR EXHIBITION SUBJECT TO THE RESTRICTIONS, JUST AS A PATENTEE IN
A LICENSE TO MANUFACTURE AND SELL THE PATENTED ARTICLE MAY FIX THE
PRICE AT WHICH THE LICENSEE MAY SELL IT."  (CITING THE BEMENT AND
GENERAL ELECTRIC CASES.)  INTERSTATE CIRCUIT, INC. V. UNITED STATES,
306 U.S. 208, 228.  AND SEE UNITED STATES V. UNIVIS LENS CO., 316 U.S.
241, 252; UNITED STATES V. MASONITE CORP., 316 U.S. 265, 277. 

THE RULE OF STARE DECISIS APPLIES TO THE INTERPRETATION GIVEN TO THE
PATENT STATUTES AND TO THE SHERMAN ACT BY THE BEMENT AND GENERAL
ELECTRIC CASES.  THERE IS NO OCCASION HERE FOR SUCH A RELAXATION OF
THAT RULE AS WAS SUGGESTED BY MR. JUSTICE BRANDEIS IN CASES
INTERPRETING BROAD CONSTITUTIONAL PHRASES.  SEE HIS DISSENT IN BURNET
V. CORONADO OIL & GAS CO., 285 U.S. 393, 410.  TO THE EXTENT THAT THE
PRESENT HOLDINGS ARE BASED UPON OPINIONS OF THIS COURT, THAT ELEMENT IS
INHERENT IN THE RULE OF STARE DECISIS. 

THE EXCEPTIONAL RECENT ACTIVITY IN SEEKING, BY STATUTORY AMENDMENT, A
CHANGE IN THE PATENT LAWS AS INTERPRETED IN THE BEMENT AND GENERAL
ELECTRIC CASES INDICATES A WIDESPREAD UNDERSTANDING THAT, IF SUCH
INTERPRETATION IS TO BE CHANGED, THE REMEDY CALLS FOR CONGRESSIONAL
ACTION.  THE RESISTANCE TO SUCH A CHANGE WHICH HAS BEEN SHOWN BY
CONGRESS IS IMPRESSIVE.  FN30  IT INDICATES NO DISSATISFACTION WITH THE
INTERPRETATION OF EXISTING LAW AS EXPRESSED IN THE BEMENT AND GENERAL
ELECTRIC CASES. 

THERE APPEARS, THEREFORE, TO BE NEITHER ADEQUATE REASON NOR AUTHORITY
FOR OVERRULING THE BEMENT AND GENERAL ELECTRIC CASES OR FOR
DISTINGUISHING THIS CASE FROM THEM. 

FN1  26 STAT. 209, AS AMENDED, 50 STAT. 693, 15 U.S.C. SEC. 1. 

FN2  "32....  APART FROM THE WRITTEN LICENSE AGREEMENTS HERE IN
EVIDENCE, THERE WAS NO AGREEMENT, EXPRESS OR IMPLIED, BETWEEN THE
LICENSOR AND ANY LICENSEE, OR BETWEEN ANY TWO OR MORE LICENSEES, WITH
RESPECT TO THE PRICES OF LICENSED DROPOUT FUSE CUTOUTS. 

     .         .        .         .         . 

"34.  ...  THERE WAS NO AGREEMENT, EXPRESS OR IMPLIED, BETWEEN LINE
AND SOUTHERN WITH RESPECT TO PRICES ON CUTOUTS OTHER THAN THE WRITTEN
CROSS-LICENSE AGREEMENTS. 

     .         .         .         .         . 

"36.  THERE WAS NO COMBINATION OR CONSPIRACY AMONG THE DEFENDANTS, OR
ANY OF THEM, TO FIX, MAINTAIN OR CONTROL PRICES OF DROPOUT FUSE CUTOUTS
OR PARTS THEREOF, OR TO RESTRAIN TRADE OR COMMERCE THEREIN."  (FINDINGS
OF FACT.) 

FN3  IN ADDITION TO THE FINDINGS QUOTED IN NOTE 2, SUPRA, THE TRIAL
COURT FOUND: 

"9.  THE VALIDITY OF THE UNITED STATES LETTERS PATENT INVOLVED IN THE
LICENSES OF THE DEFENDANTS IS NOT CONTESTED BY THE PLAINTIFF IN THIS
ACTION, AND THEREFORE IS NOT HERE IN ISSUE. 

  .         .         .         .         . 

"27.  NONE OF THE LICENSE AGREEMENTS AFORESAID RESTRAINS TRADE IN ANY
ARTICLE MOVING IN INTERSTATE COMMERCE, AND NONE OF THEM WAS ENTERED
INTO AS A RESULT OF ANY CONSPIRACY TO RESTRAIN SUCH TRADE. 

"28.  ...  THE PRICES LISTED IN SCHEDULE A ARE LINE'S OWN SELLING
PRICES, DETERMINED SOLELY BY LINE WITHOUT DISCUSSION WITH OR ADVICE
FROM ANY OTHER DEFENDANT. 

"29.  UNDER THE CROSS-LICENSES WITH SOUTHERN AND ITS LICENSES TO
OTHERS, LINE ESTABLISHED MINIMUM PRICES ONLY FOR STRUCTURES WITHIN THE
AMBIT OF THE CLAIMS OF ITS OWN PATENTS.  THE CLASSIFICATION SCHEDULES
ATTACHED TO THE LICENSE AGREEMENTS WERE ONLY SUCH AS WERE REASONABLY
NECESSARY TO PROTECT THE BUSINESS OF THE LICENSOR AND IMPLEMENT THE
LICENSE AGREEMENT SO AS TO PREVENT EVASION BY A LICENSEE OF LAWFUL
PRICE LIMITATION PROVISIONS.  LINE DID NOT ESTABLISH MINIMUM SELLING
PRICES FOR ANY DEVICE NOT COVERED BY A CLAIM OF ITS SCHULTZ PATENT RE.
22,412 OR ITS KYLE PATENT RE. 19,449. 

    .         .         .         .         . 

"31.  THERE IS NO CHARGE OF MONOPOLY BY THE DEFENDANTS.  THERE WAS NO
FIXING OF RESALE PRICES ON LICENSED DROPOUT FUSE CUTOUTS BY THE
DEFENDANTS OR ANY OF THEM.  ... 

"32.  THE PRICE LIMITATION PROVISIONS CONTAINED IN THE VARIOUS
LICENSE AGREEMENTS HERE IN EVIDENCE WERE INSISTED UPON BY THE PATENT
OWNER AND WERE INTENDED AND REASONABLY ADAPTED TO PROTECT ITS OWN
BUSINESS AND SECURE PECUNIARY REWARD FOR THE PATENTEE'S MONOPOLY.  EACH
OF THE LICENSES GRANTED TO THE LICENSEE-DEFENDANTS WAS TAKEN AND
GRANTED IN GOOD FAITH, THE PARTIES TO THE LICENSES BELIEVING A LICENSE
UNDER THE PATENTS TO BE NECESSARY IN ORDER THAT THE LICENSEE COULD
CONTINUE LAWFULLY TO MANUFACTURE AND SELL ITS DROPOUT FUSE CUTOUTS. 
... 

     .         .         .         .  . 

"34.  THE CROSS-LICENSE AGREEMENTS BETWEEN LINE AND SOUTHERN WERE
LIMITED TO THE COMMERCIALLY PRACTICABLE DEVICE COVERED BY THE
SUBSERVIENT SCHULTZ (LINE'S) PATENT, AND DID NOT CREATE ADDITIONAL
POWER FOR PRICE CONTROL OF THE LICENSED CUTOUTS OVER THAT WHICH EACH
HAD BEFORE ENTERING INTO THE AGREEMENTS.  ...  SUCH CROSS-LICENSE
AGREEMENTS WERE ENTERED INTO IN GOOD FAITH, NOT FOR THE PURPOSE OF
FIXING PRICES IN THE INDUSTRY BUT TO PERMIT THE MANUFACTURE AND SALE OF
THE CHEAPER DEVICE COVERED BY THE SUBSERVIENT PATENT, TO FACILITATE THE
NEGOTIATION OF LICENSES, AND TO PROVIDE ROYALTY INCOME.  ... 

"35.  THE LICENSE AGREEMENTS HERE IN EVIDENCE DID NOT RESTRAIN TRADE
BUT PROMOTED IT BY MAKING AVAILABLE SEVERAL SOURCES WHERE THE PATENTED
DEVICES COULD BE OBTAINED, THUS INCREASING COMPETITION IN SUCH DEVICES,
PARTICULARLY WITH RESPECT TO DESIGN, QUALITY AND SERVICE.  COMPETITION
AMONG THE DEFENDANTS FOR BUSINESS IN THESE DEVICES CONTINUED TO BE
VIGOROUS AFTER THE MAKING OF THE LICENSE AGREEMENTS." 

THAT THE PATENTS DID NOT REPRESENT AN INDUSTRY-WIDE CONTROL APPEARS
FROM THE FOLLOWING FINDING: 

"5.  THE DEFENDANTS ARE ALL MANUFACTURERS OF ELECTRICAL DEVICES OF
VARIOUS KINDS.  THE DROPOUT FUSE CUTOUTS MANUFACTURED BY THE DEFENDANTS
UNDER THE PATENT LICENSES HAVE BEEN AND ARE IN OPEN COMPETITION WITH
MANY OTHER DEVICES WHICH PERFORM THE SAME FUNCTIONS AND ARE NOT
MANUFACTURED UNDER THE PATENT LICENSES, SUCH AS OPEN SINGLE HINGE
DROPOUT FUSE CUTOUTS; OPEN NON-DROPOUT FUSE CUTOUTS; NON-DROPOUT FUSE
CUTOUTS ENCLOSED IN MATERIALS OTHER THAN CAST WET-PROCESS PORCELAIN,
SUCH AS PRESTITE; AUTOMATIC CIRCUIT BREAKER CUTOUTS; AND OTHERS LISTED
IN DEFENDANTS' EXHIBIT L-23.  THE AVERAGE AGGREGATE ANNUAL SALES OF
LICENSED DROPOUT FUSE CUTOUTS MANUFACTURED BY ALL THE DEFENDANTS FROM
1940 TO 1944 WAS $1,918,247.78 AND CONSTITUTED ONLY 40.77% OF THE
AVERAGE AGGREGATE ANNUAL SALES OF ALL LICENSED AND COMPETITIVE CUTOUTS
MANUFACTURED AND SOLD BY ALL THE DEFENDANTS, AND WERE DISTRIBUTED AMONG
THE DEFENDANTS AS FOLLOWS:  GENERAL ELECTRIC, 29.2%; LINE (,) 25.4% (;)
KEARNEY, 18.9%; SOUTHERN, 7.9%; WESTINGHOUSE, 5.3%; SCHWEITZER AND
CONRAD, 5.1%; RAILWAY, 3.8%; MATTHEWS, 2%; PORCELAIN, 1.5%; ROYAL,
0.5%; PACIFIC, 0.2%; AND JOHNSON, 0.2%." 

FN4  "2.  THE CROSS-LICENSES AND THE LICENSE AGREEMENTS ENTERED INTO
BETWEEN THE VARIOUS DEFENDANTS, AS SET FORTH IN THE PRECEDING FINDINGS
OF FACT, ARE LAWFUL AGREEMENTS."  (CONCLUSIONS OF LAW.) 

FN5  UNITED STATES V. GENERAL ELECTRIC CO., SUPRA, AT P. 490. 

FN6  BEMENT CASE, SUPRA, AT P. 92. 

FN7  GENERAL ELECTRIC CASE, SUPRA, AT P. 490. 

FN8  AN EARLY PATENT FOR THE ESTABLISHMENT OF A NEW INDUSTRY WAS
GRANTED TO A FLEMISH WEAVER IN 1331.  THERE ARE RECORDS OF A MERCHANT,
IN 1347, HAVING A MONOPOLY FOR EXPORTING CORNISH TEA AND OF AN
INDIVIDUAL, IN 1376, HAVING A MONOPOLY TO SELL SWEET WINES IN THE CITY
OF LONDON.  THE FIRST PATENT FOR A NEW INVENTION THAT HAS BEEN FOUND IN
THE RECORDS DATES FROM 1561 AND COVERS THE MANUFACTURE OF SALTPETRE. 
MEINHARDT, INVENTIONS, PATENTS AND MONOPOLY, PP. 30, 35(LONDON, 1946). 

FN9  IN 1602, IN THE CASE OF MONOPOLIES, DARCY V. ALLEIN, 6 CO. REP.,
(Q.B.)  159, PART XI-84B; 1 AM. & ENG. PAT.  CAS.  (ABBOTT) 1; WEBS. 
PAT.  CAS. 1; A ROYAL GRANT OF EXCLUSIVE RIGHT TO MANUFACTURE PLAYING
CARDS WITHIN THE REALM WAS HELD VOID AS VIOLATING THE COMMON LAW AND
SEVERAL ACTS OF PARLIAMENT.  AND SEE 1 WALKER ON PATENTS, PP. 12
16(DELLER'S ED. 1937). 

FN10  "VI.  PROVIDED ALSO, AND BE IT DECLARED AND ENACTED, THAT ANY
DECLARATION BEFORE-MENTIONED SHALL NOT EXTEND TO ANY LETTERS PATENTS
AND GRANTS OF PRIVILEGE FOR THE TERM OF FOURTEEN YEARS OR UNDER,
HEREAFTER TO BE MADE, OF THE SOLE WORKING OR MAKING OF ANY MANNER OF
NEW MANUFACTURES WITHIN THIS REALM, TO THE TRUE AND FIRST INVENTOR AND
INVENTORS OF SUCH MANUFACTURES, WHICH OTHERS AT THE TIME OF MAKING SUCH
LETTERS PATENTS AND GRANTS SHALL NOT USE, SO AS ALSO THEY BE NOT
CONTRARY TO THE LAW, NOR MISCHIEVOUS TO THE STATE, BY RAISING PRICES OF
COMMODITIES AT HOME, OR HURT OF TRADE, OR GENERALLY INCONVENIENT:  THE
SAID FOURTEEN YEARS TO BE ACCOUNTED FROM THE DATE OF THE FIRST LETTERS
PATENTS, OR GRANT OF SUCH PRIVILEGE HEREAFTER TO BE MADE, BUT THAT THE
SAME SHALL BE OF SUCH FORCE AS THEY SHOULD BE, IF THIS ACT HAD NEVER
BEEN MADE, AND OF NONE OTHER."  21 JAC.  I, C. 3(1623). 

"THE STATUTE OF MONOPOLIES CREATED NO NEW RIGHT EITHER IN THE CROWN
OR THE PEOPLE; IT WAS SIMPLY DECLARATORY OF THE COMMON LAW AND ENACTED
INTO STATUTE LAW, WHICH BOUND THE SOVEREIGN, THE DOCTRINES THAT THE
COURTS HAD REPEATEDLY AFFIRMED, AND REITERATED THOSE PRINCIPLES OF THE
MAGNA CHARTA (9 HENRY III, CH. XXXVII, A.D. 1225) WHICH DECLARED THAT
THE LIBERTIES OF HIS SUBJECTS SHALL NOT BE INFRINGED OR BROKEN BY ROYAL
USURPATION, AND IT LIMITED THE ROYAL PREROGATIVE TO CERTAIN DEFINITE
TERMS AND CONDITIONS UNDER WHICH IT MIGHT BE LAWFULLY EXERCISED.  IT IS
TO BE NOTED THAT THERE WAS A RESERVATION OF LETTERS PATENT AND GRANTS
OF THE PRIVILEGE OF THE SOLE WORKING OR MAKING OF ANY NEW MANUFACTURES
WITHIN THE REALM TO THE TRUE AND FIRST INVENTOR; CONFERRING UPON HIM AN
EXCLUSIVE PRIVILEGE FOR THE TERM OF FOURTEEN YEARS."  1 WALKER ON
PATENTS, SUPRA, AT P. 22. 

FN11  THE FIRST ACT TO IMPLEMENT THE CONSTITUTIONAL PROVISION WAS
APPROVED APRIL 10, 1790.  IT PROVIDED: 

"SECTION 1.  ...  , THAT UPON THE PETITION OF ANY PERSON OR PERSONS
TO THE SECRETARY OF STATE, THE SECRETARY FOR THE DEPARTMENT OF WAR, AND
THE ATTORNEY GENERAL OF THE UNITED STATES, SETTING FORTH, THAT HE, SHE,
OR THEY, HATH OR HAVE INVENTED OR DISCOVERED ANY USEFUL ART,
MANUFACTURE, ENGINE, MACHINE, OR DEVICE, OR ANY IMPROVEMENT THEREIN NOT
BEFORE KNOWN OR USED, AND PRAYING THAT A PATENT MAY BE GRANTED
THEREFOR, IT SHALL AND MAY BE LAWFUL TO AND FOR THE SAID SECRETARY OF
STATE, THE SECRETARY FOR THE DEPARTMENT OF WAR, AND THE ATTORNEY
GENERAL, OR ANY TWO OF THEM, IF THEY SHALL DEEM THE INVENTION OR
DISCOVERY SUFFICIENTLY USEFUL AND IMPORTANT, TO CAUSE LETTERS PATENT TO
BE MADE OUT IN THE NAME OF THE UNITED STATES, TO BEAR TESTE BY THE
PRESIDENT OF THE UNITED STATES, RECITING THE ALLEGATIONS AND
SUGGESTIONS OF THE SAID PETITION, AND DESCRIBING THE SAID INVENTION OR
DISCOVERY, CLEARLY, TRULY AND FULLY, AND THEREUPON GRANTING TO SUCH
PETITIONER OR PETITIONERS, HIS, HER OR THEIR HEIRS, ADMINISTRATORS OR
ASSIGNS FOR ANY TERM NOT EXCEEDING FOURTEEN YEARS, THE SOLE AND
EXCLUSIVE RIGHT AND LIBERTY OF MAKING, CONSTRUCTING, USING AND VENDING
TO OTHERS TO BE USED, THE SAID INVENTION OR DISCOVERY; ...."  1 STAT.
109-110. 

FN12  THE COMMISSIONER REFERRED TO THE SPECIAL INTEREST OF PRESIDENT
JEFFERSON IN THIS SUBJECT: 

"NO AMERICAN AMONG HIS CONTEMPORARIES OR HIS SUCCESSORS HAS ACHIEVED
A GREATER REPUTATION AS AN OPPONENT OF MONOPOLY THAN THOMAS JEFFERSON. 
YET HE NOT MERELY SANCTIONED, HE ELOQUENTLY ADVOCATED THE FORM OF
MONOPOLY REPRESENTED IN PATENTS.  I CITE HIS COMMENTARY ON AN EARLY ACT
OF CONGRESS, PRESUMABLY THAT OF 1790, IN THE ADMINISTRATION OF WHICH HE
COLLABORATED WITH HENRY KNOX, SECRETARY OF WAR, AND EDMUND RANDOLPH,
ATTORNEY GENERAL. 

'AN ACT OF CONGRESS AUTHORIZING THE ISSUE OF PATENTS FOR NEW
DISCOVERIES HAS GIVEN A SPRING TO INVENTION BEYOND MY CONCEPTION. 
BEING AN INSTRUMENT OF GRANTING THE PATENTS, I AM ACQUAINTED WITH THEIR
DISCOVERIES. 

     .         .   .         .         . 

'IN THE ARTS, AND ESPECIALLY IN THE MECHANICAL ARTS, MANY INGENIOUS
IMPROVEMENTS ARE MADE IN CONSEQUENCE OF THE PATENT-RIGHT GIVING
EXCLUSIVE USE OF THEM FOR 14 YEARS. 

'CERTAINLY AN INVENTOR OUGHT TO BE ALLOWED A RIGHT TO THE BENEFIT OF
HIS INVENTION FOR SOME CERTAIN TIME.  NOBODY WISHES MORE THAN I DO THAT
INGENUITY SHOULD RECEIVE LIBERAL ENCOURAGEMENT.'"  HEARINGS BEFORE THE
TEMPORARY NATIONAL ECONOMIC COMMITTEE, SUPRA, AT P. 840. 

SOME CONCEPTION OF THE DEGREE TO WHICH THE PRESENT PATENT SYSTEM HAS
BEEN RESORTED TO IS FOUND IN COMMISSIONER COE'S TESTIMONY THAT, UP TO
1939, OVER 2,000,000 PATENTS HAD BEEN ISSUED, APART FROM DESIGN PATENTS
AND REISSUES.  THE FIGURE IS NOW APPROXIMATELY 2,500,000 OF WHICH ALL
BUT ABOUT 100,000 HAVE BEEN ISSUED SINCE 1870.  HE SHOWED ALSO THAT
ONLY ABOUT 60% OF THE APPLICATIONS FILED ARE FINALLY GRANTED.  (ID. AT
P. 844, AND EXHIBITS 179 AND 180.)  SEE ALSO, OFFICIAL GAZETTE, U.S.
PAT.  OFF., VOL. 605, P. 714(DEC.  30, 1947).   AFTER THE FINAL REPORT
OF THE TEMPORARY NATIONAL ECONOMIC COMMITTEE, THE PRESIDENT ISSUED
EXECUTIVE ORDER NO. 8977, DECEMBER 12, 1941, 1 C.F.R. CUM. SUPP. 1040,
ESTABLISHING THE NATIONAL PATENT PLANNING COMMISSION TO CONDUCT A
COMPREHENSIVE SURVEY AND STUDY OF THE AMERICAN PATENT SYSTEM AND, AMONG
OTHER THINGS, TO -    "CONSIDER WHETHER THE SYSTEM NOW PROVIDES THE
MAXIMUM SERVICE IN STIMULATING THE INVENTIVE GENIUS OF OUR PEOPLE IN
EVOLVING INVENTIONS AND IN FURTHERING THEIR PROMPT UTILIZATION FOR THE
PUBLIC GOOD; ...  WHETHER THERE ARE OBSTRUCTIONS IN OUR EXISTING SYSTEM
OF PATENT LAWS, AND IF SO, HOW THEY CAN BE ELIMINATED; ...  AND WHAT
METHODS AND PLANS MIGHT BE DEVELOPED TO PROMOTE INVENTIONS AND
DISCOVERIES WHICH WILL INCREASE COMMERCE, PROVIDE EMPLOYMENT, AND FULLY
UTILIZE EXPANDED DEFENSE INDUSTRIAL FACILITIES DURING NORMAL TIMES." 

THE PRESIDENT APPOINTED CHARLES F. KETTERING, CHAIRMAN, CHESTER C.
DAVIS, FRANCIS P. GAINES, EDWARD F. MCGRADY AND OWEN D. YOUNG AS
MEMBERS OF THE COMMITTEE.  THE REPORT OF THE COMMITTEE, TRANSMITTED BY
THE PRESIDENT TO CONGRESS JUNE 18, 1943(H.R. DOC. NO. 239, 78TH CONG.,
1ST SESS. 1), CONTAINED THE FOLLOWING: 

"THE AMERICAN PATENT SYSTEM ESTABLISHED BY THE CONSTITUTION GIVING
CONGRESS THE 'POWER TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL
ARTS,' IS OVER 150 YEARS OLD.  THE SYSTEM HAS ACCOMPLISHED ALL THAT THE
FRAMERS OF THE CONSTITUTION INTENDED.  IT IS THE ONLY PROVISION OF THE
GOVERNMENT FOR THE PROMOTION OF INVENTION AND DISCOVERY AND IS THE
BASIS UPON WHICH OUR ENTIRE INDUSTRIAL CIVILIZATION RESTS. 

"THE AMERICAN PEOPLE AND THEIR GOVERNMENT SHOULD RECOGNIZE THE
FUNDAMENTAL RIGHTNESS AND FAIRNESS OF PROTECTING THE CREATIONS OF ITS
INVENTORS BY THE PATENT GRANT.  THE BASIC PRINCIPLES OF THE PRESENT
SYSTEM SHOULD BE PRESERVED.  THE SYSTEM HAS CONTRIBUTED TO THE GROWTH
AND GREATNESS OF OUR NATION; IT HAS - 

(1)  ENCOURAGED AND REWARDED INVENTIVENESS AND CREATIVENESS,
PRODUCING NEW PRODUCTS AND PROCESSES WHICH HAVE PLACED THE UNITED
STATES FAR AHEAD OF OTHER COUNTRIES IN THE FIELD OF SCIENTIFIC AND
TECHNOLOGICAL ENDEAVOR; 

(2)  STIMULATED AMERICAN INVENTORS TO ORIGINATE A MAJOR PORTION OF
THE IMPORTANT INDUSTRIAL AND BASIC INVENTIONS OF THE PAST 150 YEARS; 

(3)  FACILITATED THE RAPID DEVELOPMENT AND GENERAL APPLICATION OF NEW
DISCOVERIES IN THE UNITED STATES TO AN EXTENT EXCEEDING THAT OF ANY
OTHER COUNTRY; 

(4)  CONTRIBUTED TO THE ACHIEVEMENT OF THE HIGHEST STANDARD OF LIVING
THAT ANY NATION HAS EVER ENJOYED; 

(5)  STIMULATED CREATION AND DEVELOPMENT OF PRODUCTS AND PROCESSES
NECESSARY TO ARM THE NATION AND TO WAGE SUCCESSFUL WAR; 

(6)  CONTRIBUTED TO THE IMPROVEMENT OF THE PUBLIC HEALTH AND THE
PUBLIC SAFETY; AND 

(7)  OPERATED TO PROTECT THE INDIVIDUAL AND SMALL BUSINESS CONCERNS
DURING THE FORMATIVE PERIOD OF A NEW ENTERPRISE. 

THE STRONGEST INDUSTRIAL NATIONS HAVE THE MOST EFFECTIVE PATENT
SYSTEMS AND AFTER A CAREFUL STUDY, THE COMMISSION HAS REACHED THE
CONCLUSION THAT THE AMERICAN SYSTEM IS THE BEST IN THE WORLD." 

IN ITS SUMMARY OF FINDINGS AND RECOMMENDATIONS IT ADDED: 

"THE PATENT SYSTEM IS THE FOUNDATION OF AMERICAN ENTERPRISE AND HAS
DEMONSTRATED ITS VALUE OVER A PERIOD COEXTENSIVE WITH THE LIFE OF OUR
GOVERNMENT.  THE PRINCIPLE OF RECOGNIZING A PROPERTY RIGHT IN
INTELLECTUAL CREATION IS SOUND AND SHOULD BE CONTINUED AS CONTEMPLATED
IN THE CONSTITUTION."  (ID. AT P. 9.) 

FN13  IN GRANT V. RAYMOND, 6 PET. 218, 241-242, 243, CHIEF JUSTICE
MARSHALL SAID: 

"THE LAW FARTHER DECLARES THAT THE PATENT 'SHALL BE GOOD AND
AVAILABLE TO THE GRANTEE OR GRANTEES BY FORCE OF THIS ACT, TO ALL AND
EVERY INTENT AND PURPOSE HEREIN CONTAINED.'  THE EMENDATORY ACT OF 1793
CONTAINS THE SAME LANGUAGE, AND IT CANNOT BE DOUBTED THAT THE SETTLED
PURPOSE OF THE UNITED STATES HAS EVER BEEN, AND CONTINUES TO BE, TO
CONFER ON THE AUTHORS OF USEFUL INVENTIONS AN EXCLUSIVE RIGHT IN THEIR
INVENTIONS FOR THE TIME MENTIONED IN THEIR PATENT.  IT IS THE REWARD
STIPULATED FOR THE ADVANTAGES DERIVED BY THE PUBLIC FOR THE EXERTIONS
OF THE INDIVIDUAL, AND IS INTENDED AS A STIMULUS TO THOSE EXERTIONS. 
THE LAWS WHICH ARE PASSED TO GIVE EFFECT TO THIS PURPOSE OUGHT, WE
THINK, TO BE CONSTRUED IN THE SPIRIT IN WHICH THEY HAVE BEEN MADE; AND
TO EXECUTE THE CONTRACT FAIRLY ON THE PART OF THE UNITED STATES, WHERE
THE FULL BENEFIT HAS BEEN ACTUALLY RECEIVED:  IF THIS CAN BE DONE
WITHOUT TRANSCENDING THE INTENTION OF THE STATUTE, OR COUNTENANCING
ACTS WHICH ARE FRAUDULENT OR MAY PROVE MISCHIEVOUS.  THE PUBLIC YIELDS
NOTHING WHICH IT HAS NOT AGREED TO YIELD; IT RECEIVES ALL WHICH IT HAS
CONTRACTED TO RECEIVE.  THE FULL BENEFIT OF THE DISCOVERY, AFTER ITS
ENJOYMENT BY THE DISCOVERER FOR FOURTEEN YEARS, IS PRESERVED; AND FOR
HIS EXCLUSIVE ENJOYMENT OF IT DURING THAT TIME THE PUBLIC FAITH IS
PLEDGED.  ... 

.         .         .         .         . 

"THE GREAT OBJECT AND INTENTION OF THE ACT IS TO SECURE TO THE PUBLIC
THE ADVANTAGES TO BE DERIVED FROM THE DISCOVERIES OF INDIVIDUALS, AND
THE MEANS IT EMPLOYS ARE THE COMPENSATION MADE TO THOSE INDIVIDUALS FOR
THE TIME AND LABOUR DEVOTED TO THESE DISCOVERIES, BY THE EXCLUSIVE
RIGHT TO MAKE, USE AND SELL, THE THINGS DISCOVERED FOR A LIMITED
TIME." 

FN14  THERE IS NO ISSUE HERE CORRESPONDING TO THE OTHER ISSUE
EXAMINED AND UPHELD IN THE GENERAL ELECTRIC CASE, NAMELY, THAT
INVOLVING THE VALIDITY OF THE PATENTEE'S AGENCY SYSTEM OF SALES OF ITS
PATENTED ARTICLE.  ANOTHER SYSTEM FOR MAKING SALES OF A PATENTED
ARTICLE HAS BEEN HELD INVALID WHERE THE "AGENCIES" WERE FOUND NOT TO BE
BONA FIDE AGENCIES.  UNITED STATES V. MASONITE CORP., 316 U.S. 265. 
THAT CASE, IN TURN, DID NOT REACH THE ISSUE RAISED BY THE WESTINGHOUSE
LICENSE IN THE GENERAL ELECTRIC CASE.  THE COURT THERE SAID (P. 277):
"WE NEED NOT REACH THE PROBLEMS PRESENTED BY BEMENT V. NATIONAL HARROW
CO., 186 U.S. 70, AND THAT PART OF THE GENERAL ELECTRIC CASE WHICH
DEALT WITH THE LICENSE TO WESTINGHOUSE COMPANY." 

FN15  UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 179-180. 
SEE ALSO, STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1. 

FN16  THE INSTANT CASE ALSO IS TO BE DISTINGUISHED SHARPLY FROM THOSE
IN WHICH THE PARTIES TO A LICENSE HAVE SOUGHT TO FIX PRICES FOR THE
RESALE BY THE LICENSEE OF PATENTED PRODUCTS PREVIOUSLY SOLD TO THE
LICENSEE BY THE PATENTEE OR OTHERS.  UNITED STATES V. UNIVIS LENS CO.,
316 U.S. 241, 252; ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436,
452, 456-457; MOTION PICTURE PATENTS CO. V. UNIVERSAL FILM MFG. CO.,
243 U.S. 502, 516; STRAUS V. VICTOR TALKING MACHINE CO., 243 U.S. 490,
500-501; BAUER & CIE V. O'DONNELL, 229 U.S. 1, 16-17.  SEE ALSO,
STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163, 169; UNITED SHOE MACH.
CO. V. UNITED STATES, 258 U.S. 451, 463-464; STANDARD SANITARY MFG. CO.
V. UNITED STATES, 226 U.S. 20, 48-49; ADAMS V. BURKE, 17 WALL.  453,
455-456. 

FN17  GENERAL ELECTRIC CASE, SUPRA, AT P. 490. 

FN18  IN DISCUSSING THIS PATENT MONOPOLY AND THE PATENT LAWS OF THE
UNITED STATES THIS COURT LONG AGO SAID: 

"THE MONOPOLY THUS GRANTED IS ONE ENTIRE THING, AND CANNOT BE DIVIDED
INTO PARTS, EXCEPT AS AUTHORIZED BY THOSE LAWS.  THE PATENTEE OR HIS
ASSIGNS MAY, BY INSTRUMENT IN WRITING, ASSIGN, GRANT AND CONVEY,
EITHER, 1ST, THE WHOLE PATENT, COMPRISING THE EXCLUSIVE RIGHT TO MAKE,
USE AND VEND THE INVENTION THROUGHOUT THE UNITED STATES; OR, 2D, AN
UNDIVIDED PART OR SHARE OF THAT EXCLUSIVE RIGHT; OR, 3D, THE EXCLUSIVE
RIGHT UNDER THE PATENT WITHIN AND THROUGHOUT A SPECIFIED PART OF THE
UNITED STATES.  REV. STAT. SEC. 4898.  ...  ANY ASSIGNMENT OR TRANSFER,
SHORT OF ONE OF THESE, IS A MERE LICENSE, GIVING THE LICENSEE NO TITLE
IN THE PATENT, AND NO RIGHT TO SUE AT LAW IN HIS OWN NAME FOR AN
INFRINGEMENT.  REV. STAT. SEC. 4919; GAYLER V. WILDER, 10 HOW.  477,
494, 495; MOORE V. MARSH, 7 WALL.  515."  WATERMAN V. MACKENZIE, 138
U.S. 252, 255. 

THIS WAS QUOTED WITH APPROVAL IN CROWN CO. V. NYE TOOL WORKS, 261
U.S. 24, 37, AND WAS ENLARGED UPON IN THE GENERAL ELECTRIC CASE, SUPRA,
AT P. 489. 

FN19  SEE NOTE 18, SUPRA. 

FN20  "'AS A LICENSE PASSES NO INTEREST IN THE MONOPOLY, IT HAS BEEN
DESCRIBED AS A MERE WAIVER OF THE RIGHT TO SUE BY THE PATENTEE,'  ...
"  QUOTED WITH APPROVAL BY CHIEF JUSTICE TAFT IN A UNANIMOUS OPINION OF
THE COURT IN DE FOREST CO. V. UNITED STATES, 273 U.S. 236, 242. 

FN21  GENERAL ELECTRIC CASE, SUPRA, AT P. 490. 

FN22  CHIEF JUSTICE TAFT, AT PP. 490-491, MADE THE FOLLOWING
SIGNIFICANT REFERENCES TO THE BEMENT CASE: 

"THIS QUESTION WAS CONSIDERED BY THIS COURT IN THE CASE OF BEMENT V.
NATIONAL HARROW COMPANY, 186 U.S. 70.  A COMBINATION OF MANUFACTURERS
OWNING A PATENT TO MAKE FLOAT SPRING TOOL HARROWS, LICENSED OTHERS TO
MAKE AND SELL THE PRODUCTS UNDER THE PATENT, ON CONDITION THAT THEY
WOULD NOT DURING THE CONTINUANCE OF THE LICENSE SELL THE PRODUCTS AT A
LESS PRICE, OR ON MORE FAVORABLE TERMS OF PAYMENT AND DELIVERY TO
PURCHASERS, THAN WERE SET FORTH IN A SCHEDULE MADE PART OF THE
LICENSE.  THAT WAS HELD TO BE A VALID USE OF THE PATENT RIGHTS OF THE
OWNERS OF THE PATENT.  IT WAS OBJECTED THAT THIS MADE FOR A MONOPOLY. 
THE COURT, SPEAKING BY MR. JUSTICE PECKHAM, SAID (P. 91): 

"'THE VERY OBJECT OF THESE LAWS IS MONOPOLY, AND THE RULE IS, WITH
FEW EXCEPTIONS, THAT ANY CONDITIONS WHICH ARE NOT IN THEIR VERY NATURE
ILLEGAL WITH REGARD TO THIS KIND OF PROPERTY, IMPOSED BY THE PATENTEE
AND AGREED TO BY THE LICENSEE FOR THE RIGHT TO MANUFACTURE OR USE OR
SELL THE ARTICLE, WILL BE UPHELD BY THE COURTS.  THE FACT THAT THE
CONDITIONS IN THE CONTRACTS KEEP UP THE MONOPOLY OR FIX PRICES DOES NOT
RENDER THEM ILLEGAL.' 

"SPEAKING OF THE CONTRACT, HE SAID (P. 93): 

"THE PROVISION IN REGARD TO THE PRICE AT WHICH THE LICENSEE WOULD
SELL THE ARTICLE MANUFACTURED UNDER THE LICENSE WAS ALSO AN APPROPRIATE
AND REASONABLE CONDITION.  IT TENDED TO KEEP UP THE PRICE OF THE
IMPLEMENTS MANUFACTURED AND SOLD, BUT THAT WAS ONLY RECOGNIZING THE
NATURE OF THE PROPERTY DEALT IN, AND PROVIDING FOR ITS VALUE SO FAR AS
POSSIBLE.  THIS THE PARTIES WERE LEGALLY ENTITLED TO DO.  THE OWNER OF
A PATENTED ARTICLE CAN, OF COURSE, CHARGE SUCH PRICE AS HE MAY CHOOSE,
AND THE OWNER OF A PATENT MAY ASSIGN IT OR SELL THE RIGHT TO
MANUFACTURE AND SELL THE ARTICLE PATENTED UPON THE CONDITION THAT THE
ASSIGNEE SHALL CHARGE A CERTAIN AMOUNT FOR SUCH ARTICLE.'" 

JUDGE WESTENHAVER, WHOSE JUDGMENT IN THE DISTRICT COURT WAS AFFIRMED
BY THIS COURT IN THE GENERAL ELECTRIC CASE, SAID: 

"IF BOTH LICENSOR AND LICENSEE ARE MAKING AND SELLING, IT IS QUITE
CONCEIVABLE THAT THE OWNER OF THE PATENT COULD NOT SAFELY GRANT
LICENSES AT ALL ON ANY OTHER TERMS; OTHERWISE, HE WOULD RISK HAVING HIS
BUSINESS DESTROYED, AND HENCE, AS A MATTER OF ORDINARY BUSINESS
PRUDENCE, WOULD FEEL OBLIGED TO KEEP HIS PATENT MONOPOLY WHOLLY WITHIN
HIS OWN HANDS.  AND IT WAS SO HELD IN BEMENT V. NATIONAL HARROW CO.,
186 U.S. 70, 22 S. CT. 747, 46 L. ED. 1058."  UNITED STATES V. GENERAL
ELECTRIC CO., 15 F.2D 715, 718. 

FN23  GENERAL ELECTRIC CASE, SUPRA, AT P. 490. 

FN24  HEARINGS BEFORE THE TEMPORARY NATIONAL ECONOMIC COMMITTEE,
SUPRA; CONWAY P. COE, COMMISSIONER OF PATENTS, PP. 839, ET SEQ., 857,
ET. SEQ.; I. JOSEPH FARLEY, PATENT COUNSEL, FORD MOTOR CO., DETROIT,
MICHIGAN, P. 262, ET SEQ.; DR. VANNEVAR BUSH, PRESIDENT, CARNEGIE
INSTITUTION, WASHINGTON, D.C., P. 898, ET SEQ.; RALPH E. FLANDERS,
PRESIDENT, JONES & LAMSON, SPRINGFIELD, VERMONT (NOW U.S. SENATOR FROM
VERMONT), P. 928, ET SEQ.; JOHN A. GRAHAM, PRESIDENT, MOTOR
IMPROVEMENTS, INC., NEWARK, NEW JERSEY, P. 938, ET SEQ.; DR. FRANK B.
JEWETT, PRESIDENT, BELL TELEPHONE LABORATORIES, INC., NEW YORK CITY, P.
958, ET SEQ.; MAURICE H. GRAHAM, INDEPENDENT INVENTOR, MINNEAPOLIS,
MINNESOTA, P. 1076, ET SEQ.; AND GEORGE BAEKELAND, VICE PRESIDENT,
BAKELITE CORPORATION, NEW YORK CITY, P. 1082, ET SEQ. 

FN25  SEE NOTE 3, SUPRA. 

FN26  IN 1939, THE COMMISSIONER OF PATENTS TESTIFIED THAT OF THE
PATENTS ISSUED, EXCLUSIVE OF DESIGN PATENTS AND REISSUES, LARGE
CORPORATIONS (HAVING RESPECTIVELY OVER $50,000,000 OF ASSETS) RECEIVED
BUT 17.2%, SMALL CORPORATIONS (HAVING RESPECTIVELY LESS THAN
$50,000,000 OF ASSETS) 34.5%, FOREIGN CORPORATIONS 5.4% AND INDIVIDUALS
42.9%.  SUBSEQUENT ASSIGNMENTS DID NOT MATERIALLY AFFECT THESE
PROPORTIONS.  HEARINGS BEFORE THE TEMPORARY NATIONAL ECONOMIC
COMMITTEE, SUPRA, AT P. 846. 

CLARENCE C. CARLTON, PRESIDENT OF THE AUTOMOTIVE PARTS AND EQUIPMENT
MANUFACTURERS ASSOCIATION, TESTIFIED THAT IN THE AUTOMOTIVE PARTS
INDUSTRY: 

"PATENTS ARE VALUED SO MUCH MORE BY THE SMALL MANUFACTURER THAN THEY
ARE BY THE LARGE MANUFACTURER.  ...  IF ANYTHING HAPPENED TO THIS
PATENT SYSTEM THE FELLOW WHO WOULD BE HURT MORE THAN ANYONE ELSE WOULD
BE THE SMALLER MANUFACTURER."  (ID. AT PP. 1057, 1058.) 

FN27  "AS A PART CONSIDERATION FOR THE GRANTING OF THE FOREGOING
LICENSES, THE LICENSEE (WESTINGHOUSE) HEREBY GRANTS AND AGREES TO GRANT
TO THE LICENSOR (GENERAL ELECTRIC) A NON-EXCLUSIVE LICENSE UNDER THE
UNITED STATES PATENTS WHICH IT NOW OWNS OR CONTROLS AND UNDER THOSE
WHICH MAY ISSUE ON PENDING APPLICATIONS NOW OWNED OR CONTROLLED BY IT,
AND UNDER ANY UNITED STATES PATENTS WHICH THE LICENSEE MAY OWN OR
CONTROL, DURING THE TERM OF THIS AGREEMENT, FOR IMPROVEMENTS IN
INCANDESCENT LAMPS SPECIFIED IN PARAGRAPHS A, B, C AND D OF ARTICLE 2,
TO MAKE, USE AND SELL THROUGHOUT THE UNITED STATES AND THE TERRITORIES
THEREOF INCANDESCENT LAMPS OF THE KINDS SPECIFIED IN SAID PARAGRAPHS OF
ARTICLE 2 HEREOF, SUCH LICENSE BEING PERSONAL, NON-ASSIGNABLE,
INDIVISIBLE AND NON-TRANSFERABLE EXCEPT TO SUCCESSORS TO SUBSTANTIALLY
THE ENTIRE GOOD WILL AND BUSINESS OF THE LICENSOR, AND TO CONTINUE FOR
THE PERIOD DURING WHICH THE LICENSES FROM THE LICENSOR TO THE LICENSEE
REMAIN IN FORCE."  PAR. (8) OF AGREEMENT BETWEEN GENERAL ELECTRIC
COMPANY AND WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY, MARCH 1,
1912, EXHIBIT A, AT P. 117 OF THE RECORD IN THE SUPREME COURT OF THE
UNITED STATES, NO. 113, O.T. 1926.    FN28  IN THAT STANDARD OIL CASE
THE FOOTNOTE AT THIS POINT STATED (P. 171): 

"THIS IS OFTEN THE CASE WHERE PATENTS COVERING IMPROVEMENTS OF A
BASIC PROCESS, OWNED BY ONE MANUFACTURER, ARE GRANTED TO ANOTHER.  A
PATENT MAY BE RENDERED QUITE USELESS, OR 'BLOCKED,' BY ANOTHER
UNEXPIRED PATENT WHICH COVERS A VITALLY RELATED FEATURE OF THE
MANUFACTURING PROCESS.  UNLESS SOME AGREEMENT CAN BE REACHED, THE
PARTIES ARE HAMPERED AND EXPOSED TO LITIGATION.  AND, FREQUENTLY, THE
COST OF LITIGATION TO A PATENTEE IS GREATER THAN THE VALUE OF A PATENT
FOR A MINOR IMPROVEMENT." 

FN29  BEFORE MAKING THIS STATEMENT, MR. JUSTICE BRANDEIS ALREADY HAD
JOINED IN THE OPINION OF THE COURT IN THE GENERAL ELECTRIC CASE, SUPRA,
AND WRITTEN THE OPINION IN CARBICE CORP. V. AMERICAN PATENTS
DCVELOPMENT CORP., 283 U.S. 27. 

FN30  MANY BILLS RELATING TO THESE ISSUES HAVE BEEN INTRODUCED IN
CONGRESS AND REFERRED TO APPROPRIATE COMMITTEES.  NOT ONE HAS BEEN
REPORTED BACK TO EITHER HOUSE OF CONGRESS. 

AS EARLY AS 1912, H.R. 22345, 62D CONG., 2D SESS., PROPOSED THAT A
PATENTEE BE NOT PERMITTED TO FIX THE PRICE OF ARTICLES TO BE SOLD BY
OTHERS UNDER HIS PATENT. 

DURING THE HEARINGS HELD BY THE TEMPORARY NATIONAL ECONOMIC
COMMITTEE, THE DEPARTMENT OF JUSTICE RECOMMENDED MANY FUNDAMENTAL AS
WELL AS MINOR CHANGES IN THE PATENT LAW.  THESE INCLUDED THE
PROHIBITION OF PRICE-LIMITING PATENT LICENSES COMPARABLE TO THOSE HERE
AT ISSUE.  PRELIMINARY REPORT, TEMPORARY NATIONAL ECONOMIC COMMITTEE,
SEN. DOC. NO. 95, 76TH CONG., 1ST SESS. 16-17(1939).  THE DEPARTMENT OF
COMMERCE TOOK AN OPPOSITE POSITION.  IT SUBMITTED RECOMMENDATIONS FOR
RETAINING BUT IMPROVING THE PATENT SYSTEM SUBSTANTIALLY IN ACCORDANCE
WITH ITS TRADITIONAL UNDERLYING POLICIES.  THE FINAL REPORT OF THE
TEMPORARY NATIONAL ECONOMIC COMMITTEE INCORPORATED THE SUBSTANCE OF THE
PROPOSALS OF THE DEPARTMENT OF JUSTICE.  IT INCLUDED A RECOMMENDATION
THAT PATENTEES BE NOT PERMITTED TO LIMIT THE PRICE AT WHICH A LICENSEE
MIGHT SELL A PRODUCT MADE UNDER THE LICENSE.  FINAL REPORT, TEMPORARY
NATIONAL ECONOMIC COMMITTEE, SEN. DOC. NO. 35, 77TH CONG., 1ST SESS. 36
37(1941). 

IN 1941, THE PRESIDENT APPOINTED THE NATIONAL PATENT PLANNING
COMMISSION TO SUBMIT RECOMMENDATIONS ON QUESTIONS DEALT WITH IN THE
REPORT.  (SEE NOTE 12, SUPRA.) IN 1943, AMONG THE EXAMPLES OF THE
PROPOSED REFORMS WHICH IT CONCLUDED "WOULD NOT BE A BENEFICIAL
INNOVATION IN OUR PATENT SYSTEM," IT LISTED "OUTLAWING CERTAIN
LIMITATIONS IN PATENT LICENSES,  ...  "  THIS EVIDENTLY REFERRED TO THE
ABOVE-MENTIONED PROPOSALS OF THE TEMPORARY NATIONAL ECONOMIC COMMITTEE
TO OUTLAW PRICE RESTRICTIONS AND OTHER LIMITATIONS IN PATENT LICENSES. 
REPORT OF THE NATIONAL PATENT PLANNING COMMISSION, H.R. DOC. 239, 78TH
CONG., 1ST SESS. 9(1943). 

BILLS TO THE SAME GENERAL EFFECT AS THE PROPOSALS OF THE TEMPORARY
NATIONAL ECONOMIC COMMITTEE HAVE BEEN INTRODUCED AND REFERRED TO
COMMITTEES OF CONGRESS BUT HAVE ADVANCED NO FURTHER.  AMONG THEM HAVE
BEEN THE FOLLOWING: 

S. 2491(SEC.  4), S. 2730(SEC.  3), H.R. 7713(SEC.  3), 77TH CONG.,
2D SESS. (1942); H.R. 109(SEC.  3), H.R. 1371(SEC.  29), H.R.
3874(SEC.  29), 78TH CONG., 1ST SESS. (1943); H.R. 97(SEC.  29), H.R.
3462(SEC.  29), 79TH CONG., 1ST SESS. (1945); S. 2482, 79TH CONG., 2D
SESS. (1946); S. 72, 80TH CONG., 1ST SESS. (1947).  SECTION 3 OF S.
2730, SUPRA, PROPOSED THAT - 

"EVERY SALE, ASSIGNMENT, OR CONVEYANCE OF A PATENT AND EVERY GRANT OF
A LICENSE THEREUNDER, IN CONNECTION WITH ANY CONDITION, AGREEMENT, OR
UNDERSTANDING WHICH RESTRICTS THE PRICE AT WHICH THE PURCHASER,
ASSIGNEE, GRANTEE, OR LICENSE (LICENSEE) MAY SELL ANY ARTICLE
PRODUCIBLE UNDER THE PATENT AND CUSTOMARILY MARKETED IN INTERSTATE
COMMERCE, IS HEREBY DECLARED TO BE ILLEGAL." 
..END :




















UNITED STATES V. GYPSUM CO., 333 U.S. 364 


NO. 13.  ARGUED NOVEMBER 14-15, 1947.  - DECIDED MARCH 8, 1948.  - 53
F.SUPP.  889, 67 F.SUPP.  397, REVERSED. 


A COMPLAINT IN A SUIT BY THE UNITED STATES TO RESTRAIN ALLEGED
VIOLATIONS OF THE SHERMAN ACT CHARGED THAT THE DEFENDANTS HAD VIOLATED
SECS. 1 AND 2 OF THE ACT BY A CONSPIRACY TO RESTRAIN AND MONOPOLIZE
INTERSTATE TRADE IN GYPSUM PRODUCTS.  IT ALLEGED THAT THE DEFENDANTS
ACTED IN CONCERT IN ENTERING INTO PATENT LICENSING AGREEMENTS; THAT ONE
OF THE DEFENDANTS, DOMINANT IN THE INDUSTRY, GRANTED PATENT LICENSES
AND THE OTHER DEFENDANTS ACCEPTED LICENSES WITH THE KNOWLEDGE THAT ALL
OTHER CONCERNS IN THE INDUSTRY WOULD ACCEPT SIMILAR LICENSES; AND THAT,
AS A RESULT OF SUCH CONCERT OF ACTION, COMPETITION WAS ELIMINATED BY
FIXING THE PRICE OF PATENTED BOARD, ELIMINATING THE PRODUCTION OF
UNPATENTED BOARD, REGULATING THE DISTRIBUTION OF PATENTED BOARD, AND
STABILIZING THE PRICE OF UNPATENTED PLASTER.  UPON CONCLUSION OF THE
GOVERNMENT'S CASE THE DISTRICT COURT GRANTED THE DEFENDANTS' MOTION TO
DISMISS.  ON DIRECT APPEAL TO THIS COURT, HELD: 

1.  THE EVIDENCE ESTABLISHED A VIOLATION OF THE SHERMAN ACT.  PP. 368
386, 388-393, 400-402. 

2.  THE PLAN OF THE CONSPIRACY TO CONTROL PRICES AND DISTRIBUTION WAS
NOT WITHIN THE PROTECTION OF THE PATENT MONOPOLY.  UNITED STATES V.
GENERAL ELECTRIC CO., 272 U.S. 476, DISTINGUISHED.  PP. 389-391, 400
402. 

3.  THE INDUSTRY-WIDE LICENSE AGREEMENTS, ENTERED INTO WITH KNOWLEDGE
ON THE PART OF LICENSOR AND LICENSEES OF THE ADHERENCE OF OTHERS, UNDER
WHICH CONTROL WAS EXERCISED OVER PRICES AND METHODS OF DISTRIBUTION,
WERE SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE OF CONSPIRACY.  PP. 388
389. 

4.  PATENT EXPLOITATION OF THE KIND HERE ATTEMPTED IS WITHIN THE
PROHIBITION OF THE SHERMAN ACT, REGARDLESS OF THE MOTIVES OF THE
PARTICIPANTS.  PP. 391-393. 

5.  WITH THE CONSPIRACY FULLY ESTABLISHED, THE DECLARATIONS AND ACTS
OF THE VARIOUS PARTICIPANTS, EVEN THOUGH MADE OR DONE PRIOR TO THE
ADHERENCE OF SOME TO THE CONSPIRACY, BECAME ADMISSIBLE AGAINST ALL AS
DECLARATIONS OR ACTS OF CO-CONSPIRATORS IN AID OF THE CONSPIRACY.  PP.
388-393. 

6.  WHEN A GROUP OF COMPETITORS ENTERS INTO A SERIES OF SEPARATE BUT
SIMILAR AGREEMENTS WITH COMPETITORS OR OTHERS, A STRONG INFERENCE
ARISES THAT SUCH AGREEMENTS ARE THE RESULT OF CONCERTED ACTION.  P.
394. 

7.  UNDER RULE 52(A) OF THE RULES OF CIVIL PROCEDURE, A FINDING OF
FACT BY THE TRIAL COURT IS "CLEARLY ERRONEOUS" WHEN, ALTHOUGH THERE IS
EVIDENCE TO SUPPORT IT, THE REVIEWING COURT ON THE ENTIRE EVIDENCE IS
LEFT WITH THE DEFINITE AND FIRM CONVICTION THAT A MISTAKE HAS BEEN
COMMITTED.  PP. 394-395. 

8.  WHERE DENIALS BY ALLEGED CONSPIRATORS THAT THEY HAD ACTED IN
CONCERT ARE IN CONFLICT WITH DOCUMENTARY EVIDENCE, THEY CAN BE GIVEN
LITTLE WEIGHT, PARTICULARLY WHEN THE CRUCIAL ISSUES INVOLVE MIXED
QUESTIONS OF FACT AND LAW.  PP. 395-396. 

9.  THE FINDING BY THE TRIAL COURT THAT DEFENDANTS HAD NOT ASSOCIATED
THEMSELVES IN A PLAN TO BLANKET THE INDUSTRY UNDER PATENT LICENSES AND
STABILIZE PRICES IS SET ASIDE AS CLEARLY ERRONEOUS.  PP. 393-394. 

10.  THE PROVISION IN THE PATENT LICENSING AGREEMENTS FOR PAYMENT OF
ROYALTIES ON THE PRODUCTION OF UNPATENTED BOARD IS STRONGLY INDICATIVE
OF AN AGREEMENT NOT TO MANUFACTURE UNPATENTED BOARD; AND THE TESTIMONY
IN THIS CASE IS AMPLE TO SHOW THAT THERE WAS AN UNDERSTANDING, IF NOT A
FORMAL AGREEMENT, THAT ONLY PATENTED BOARD WOULD BE SOLD.  SUCH AN
ARRANGEMENT IN PURPOSE AND EFFECT INCREASED THE AREA OF THE PATENT
MONOPOLY AND IS INVALID.  P. 397. 

11.  WHERE THE PURPOSE IS TO PREVENT COMPETITION BY UNCONTROLLED
RESALE PRICES, AN ARRANGEMENT FOR THE ELIMINATION OF JOBBERS DOES NOT
FALL WITHIN THE PROTECTION OF THE PATENT GRANT.  FINDINGS BY THE TRIAL
COURT THAT DEFENDANTS HAD NOT CONSPIRED TO ELIMINATE JOBBERS ARE HERE
SET ASIDE.  PP. 397-398. 

12.  FINDINGS BY THE TRIAL COURT THAT DEFENDANTS HAD NOT STABILIZED
THE PRICE OF UNPATENTED PLASTER SOLD IN CONJUNCTION WITH PATENTED BOARD
ARE HERE SET ASIDE.  PP. 398-399. 

13.  THE GENERAL ELECTRIC CASE DOES NOT AUTHORIZE A PATENTEE, ACTING
IN CONCERT WITH ALL MEMBERS OF AN INDUSTRY, TO ISSUE SUBSTANTIALLY
IDENTICAL LICENSES TO ALL MEMBERS OF THE INDUSTRY UNDER THE TERMS OF
WHICH AN INDUSTRY IS COMPLETELY REGIMENTED, THE PRODUCTION OF
COMPETITIVE UNPATENTED PRODUCTS SUPPRESSED, A CLASS OF DISTRIBUTORS
SQUEEZED OUT, AND PRICES ON UNPATENTED PRODUCTS STABILIZED.  PP. 400
401. 

14.  THE "RULE OF REASON" IS APPLICABLE TO EFFORTS TO MONOPOLIZE
THROUGH PATENTS.  PP. 400-401. 

15.  EVEN IN THE ABSENCE OF THE SPECIFIC ABUSES IN THIS CASE, WHICH
FALL WITHIN THE TRADITIONAL PROHIBITIONS OF THE SHERMAN ACT, IT WOULD
BE SUFFICIENT TO SHOW THAT THE DEFENDANTS, CONSTITUTING ALL FORMER
COMPETITORS IN AN ENTIRE INDUSTRY, HAD ACTED IN CONCERT TO RESTRAIN
COMMERCE IN THE INDUSTRY UNDER PATENT LICENSES IN ORDER TO ORGANIZE THE
INDUSTRY AND STABILIZE PRICES.  P. 401. 

16.  IN A SUIT TO RESTRAIN ALLEGED VIOLATIONS OF THE SHERMAN ACT, IN
WHICH THE DEFENDANTS RELY UPON PATENTS, THE GOVERNMENT IS ENTITLED TO
AN OPPORTUNITY TO PROVE THAT THE PATENTS ARE INVALID.  PP. 386-388. 

UNITED STATES V. UNITED STATES GYPSUM CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

THE UNITED STATES BROUGHT SUIT IN THE DISTRICT COURT TO RESTRAIN
ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT BY THE
APPELLEES.  UNDER THE EXPEDITING ACT, A THREE-JUDGE COURT WAS
CONSTITUTED TO HEAR THE CASE.  UPON PRESENTATION OF THE GOVERNMENT'S
CASE, THE DISTRICT COURT DISMISSED THE COMPLAINT.  53 F.SUPP.  889, 67
F.SUPP.  397.  THE UNITED STATES APPEALED DIRECTLY TO THIS COURT UNDER
THE EXPEDITING ACT.  REVERSED, P. 402. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES INSTITUTED THIS SUIT ON AUGUST 15, 1940, IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA
AGAINST UNITED STATES GYPSUM COMPANY, FIVE OTHER CORPORATE DEFENDANTS,
AND SEVEN INDIVIDUAL DEFENDANTS, AS A CIVIL PROCEEDING UNDER THE
SHERMAN ACT.  THE COMPLAINT CHARGED THAT THE APPELLEES HAD VIOLATED
BOTH SECS. 1 AND 2 OF THE SHERMAN ACT BY CONSPIRING TO FIX PRICES ON
PATENTED GYPSUM BOARD AND UNPATENTED GYPSUM PRODUCTS, TO STANDARDIZE
GYPSUM BOARD AND ITS METHOD OF PRODUCTION FOR THE PURPOSE OF
ELIMINATING COMPETITION, AND TO REGULATE THE DISTRIBUTION OF GYPSUM
BOARD BY ELIMINATING JOBBERS AND FIXING RESALE PRICES OF MANUFACTURING
DISTRIBUTORS. 

THE ATTORNEY GENERAL FILED AN EXPEDITING CERTIFICATE ON DECEMBER 16,
1941, AND ON SEPTEMBER 17, 1942, A THREE-JUDGE COURT WAS CONSTITUTED TO
HEAR THE CASE.  BY AMENDMENT TO THE COMPLAINT THE GOVERNMENT CHARGED
THAT THE ARTICLE CLAIMS OF FIVE PATENTS OWNED BY UNITED STATES GYPSUM
WERE INVALID AND VOID.  THE APPELLEES MOVED TO STRIKE THE AMENDMENT TO
THE COMPLAINT OR IN THE ALTERNATIVE FOR PARTIAL JUDGMENT DISMISSING THE
AMENDMENT.  ON NOVEMBER 15, 1943, THE COURT GRANTED APPELLEES' MOTION
FOR PARTIAL JUDGMENT ON THE GROUND THAT THE GOVERNMENT HAD NO STANDING
TO ATTACK THE VALIDITY OF THE PATENTS IN AN ANTITRUST PROCEEDING.  THE
CASE THEREUPON WENT TO TRIAL AND UPON CONCLUSION OF THE GOVERNMENT'S
CASE ON APRIL 20, 1944, THE APPELLEES MOVED TO DISMISS THE COMPLAINT
UNDER RULE 41(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE UPON THE
GROUND THAT ON THE FACTS AND THE LAW THE GOVERNMENT HAD SHOWN NO RIGHT
TO RELIEF.  ON JUNE 15, 1946, THE COURT FILED AN OPINION HOLDING THAT
THE MOTION SHOULD BE GRANTED, AND ON AUGUST 5, 1946, THE COURT FILED
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ENTERED JUDGMENT DISMISSING
THE COMPLAINT.  THE GOVERNMENT APPEALED DIRECTLY TO THIS COURT, 32
STAT. 823, AND PROBABLE JURISDICTION WAS NOTED ON DECEMBER 16, 1946. 
THE DECISIONS BELOW ARE REPORTED AS UNITED STATES V. UNITED STATES
GYPSUM CO., 53 F.SUPP.  889 AND 67 F.SUPP.  397.  UNITED STATES V. LINE
MATERIAL CO., DECIDED TODAY, ANTE, P. 287, WILL BE OF VALUE TO THE
READER IN CONSIDERING THIS OPINION. 

                                  I. 

THE APPELLEES ARE ENGAGED IN THE PRODUCTION OF GYPSUM AND THE
MANUFACTURE OF GYPSUM PRODUCTS, INCLUDING GYPSUM PLASTERBOARD, GYPSUM
LATH, GYPSUM WALLBOARD, AND GYPSUM PLASTER.  AT THE TIME OF THE ALLEGED
CONSPIRACY, APPELLEES SOLD NEARLY ALL OF THE FIRST THREE PRODUCTS WHICH
WERE MARKETED IN STATES EAST OF THE ROCKY MOUNTAINS, AND A SUBSTANTIAL
PORTION OF THE PLASTER SOLD IN THE SAME AREA.  GYPSUM PRODUCTS ARE
WIDELY USED IN THE CONSTRUCTION INDUSTRY.  IN 1939, THE SALES VALUE OF
GYPSUM PRODUCTS WAS APPROXIMATELY $42,000,000, OF WHICH $23,000,000 WAS
ACCOUNTED FOR BY GYPSUM BOARD (PLASTERBOARD, LATH, AND WALLBOARD),
$17,000,000 BY GYPSUM PLASTER AND THE REMAINDER BY GYPSUM BLOCK AND
TILE AND OTHER PRODUCTS.  OVER 90% OF ALL PLASTER USED IN BUILDING
CONSTRUCTION IN THE UNITED STATES IS MADE WITH GYPSUM. 

GYPSUM IS FOUND IN NUMEROUS DEPOSITS THROUGHOUT THE COUNTRY.  GYPSUM
BOARD IS MADE BY TAKING THE CRUSHED AND CALCINED MINERAL, ADDING WATER,
AND SPREADING THE GYPSUM SLURRY BETWEEN TWO PAPER LINERS.  WHEN THE
GYPSUM HARDENS, THE MINERAL ADHERES TO THE PAPER AND THE RESULTING
PRODUCT IS USED IN CONSTRUCTION.  PLASTERBOARD AND LATH HAVE A ROUGH
SURFACE AND ARE USED AS A WALL AND CEILING BASE FOR PLASTER; WALLBOARD
HAS A FINISHED SURFACE AND DOES NOT REQUIRE THE ADDITION OF PLASTER. 

SINCE ITS ORGANIZATION IN 1901, UNITED STATES GYPSUM HAS BEEN THE
DOMINANT CONCERN IN THE GYPSUM INDUSTRY.  IN 1939, IT SOLD 55% OF ALL
GYPSUM BOARD IN THE EASTERN AREA.  BY DEVELOPMENT AND PURCHASE IT HAS
ACQUIRED THE MOST SIGNIFICANT PATENTS COVERING THE MANUFACTURE OF
GYPSUM BOARD, AND BEGINNING IN 1926, UNITED STATES GYPSUM OFFERED
LICENSES UNDER ITS PATENTS TO OTHER CONCERNS IN THE INDUSTRY, ALL
LICENSES CONTAINING A PROVISION THAT UNITED STATES GYPSUM SHOULD FIX
THE MINIMUM PRICE AT WHICH THE LICENSEE SOLD GYPSUM PRODUCTS EMBODYING
THE PATENTS.  SINCE 1929, UNITED STATES GYPSUM HAS FIXED PRICES AT
WHICH THE OTHER DEFENDANTS HAVE SOLD GYPSUM BOARD. 

THE OTHER CORPORATE APPELLEES ARE NATIONAL GYPSUM CO., CERTAIN-TEED
PRODUCTS CORP., CELOTEX CORP., EBSARY GYPSUM CO., AND NEWARK PLASTER
CO. APPELLEE GLOYD IS THE OWNER OF AN UNINCORPORATED BUSINESS TRADING
UNDER THE NAME OF TEXAS CEMENT PLASTER CO. NATIONAL PRODUCED 23% OF ALL
GYPSUM BOARD SOLD IN THE EASTERN AREA IN 1939, CERTAIN-TEED 11%, AND
THE OTHER FOUR COMPANIES CORRESPONDINGLY SMALLER AMOUNTS.  SEVEN
COMPANIES WHICH WERE ACTIVE WHEN THE LICENSING PLAN WAS EVOLVED IN 1929
AND BEFORE HAVE BEEN ACQUIRED BY OTHER COMPANIES, AND DEFENDANT CELOTEX
ENTERED THE INDUSTRY IN 1939 WHEN THE LICENSING PLAN WAS FULLY IN
EFFECT BY ACQUIRING THE ASSETS AND LICENSES OF AMERICAN GYPSUM
COMPANY.  THE SEVEN INDIVIDUAL DEFENDANTS ARE PRESIDENTS OF THE
CORPORATE DEFENDANTS.  THE TABULATION ON THE NEXT PAGE LISTS THE
CORPORATE AND INDIVIDUAL DEFENDANTS, AND SHOWS THE CORPORATE CHANGES
WHICH HAVE TAKEN PLACE.  FN1 

PRIOR TO 1912, GYPSUM BOARD WAS MANUFACTURED WITH AN OPEN EDGE,
LEAVING THE GYPSUM CORE EXPOSED ON ALL FOUR SIDES.  IN 1912, UNITED
STATES GYPSUM RECEIVED AS ASSIGNEE A PATENT ISSUED TO ONE UTZMAN, NO.
1,034,746, COVERING BOTH PROCESS AND PRODUCT CLAIMS ON BOARD WITH
CLOSED SIDE EDGES, THE LOWER PAPER LINER BEING FOLDED OVER THE EXPOSED
GYPSUM CORE.  CLOSED-EDGE BOARD WAS SUPERIOR IN QUALITY TO OPEN-EDGE
BOARD, AS IT WAS CHEAPER TO PRODUCE, DID NOT BREAK SO EASILY IN
SHIPMENT, AND WAS LESS SUBJECT TO CRUMBLING AT THE EDGES WHEN NAILED IN
PLACE.  UNITED STATES GYPSUM ALSO ACQUIRED A NUMBER OF OTHER PATENTS
RELATING TO THE PROCESS OF MAKING CLOSED-EDGE BOARD.  IN 1917, UNITED
STATES GYPSUM SUED A COMPETITOR CLAIMING INFRINGEMENT OF THE UTZMAN
PATENT AND IN 1921 THE CIRCUIT COURT OF APPEALS AFFIRMED A JUDGMENT
HOLDING THAT THE UTZMAN PATENT WAS VALID AND INFRINGED N2.  UNITED
STATES GYPSUM SETTLED WITH AN INFRINGER, BEAVER PRODUCTS CO., IN 1926,
BY GRANTING BEAVER A LICENSE TO PRACTICE THE CLOSED-EDGE BOARD PATENT
WITH A PROVISION THAT UNITED STATES GYPSUM SHOULD FIX THE PRICE AT
WHICH BEAVER SOLD PATENTED BOARD.  SHORTLY BEFORE THE SETTLEMENT WITH
BEAVER, UNITED STATES GYPSUM INSTITUTED SUITS AGAINST AMERICAN GYPSUM
CO., UNIVERSAL GYPSUM AND LIME CO., AND GAVE NOTICE OF INFRINGEMENT TO
NIAGARA GYPSUM CO. UNIVERSAL DID NOT CONTEST THE SUIT BUT ACCEPTED A
LICENSE WITH PRICE-FIXING PROVISIONS, AND TWO OTHER SMALL COMPANIES
FOLLOWED SUIT IN 1927.  AMERICAN AND NIAGARA WOULD NOT SETTLE, AND IN
1928 JUDGMENT WAS ENTERED AGAINST AMERICAN HOLDING THAT AMERICAN'S
PARTIALLY CLOSED-EDGE BOARD INFRINGED ONE OF UNITED STATES GYPSUM'S
PATENTS.  UNITED STATES GYPSUM ALSO INSTITUTED SUITS FOR INFRINGEMENT
AGAINST NATIONAL GYPSUM CO. IN 1926 AND 1928 WHICH WERE SETTLED BY THE
EXECUTION OF A LICENSE AND PAYMENT OF DAMAGES AS PART OF THE INDUSTRY
WIDE SETTLEMENT WITH ALL OTHER DEFENDANTS IN 1929.  IN THAT YEAR, TWO
SETS OF LICENSE AGREEMENTS WERE SIGNED IN WHICH UNITED STATES GYPSUM
LICENSED ALL BUT TWO COMPANIES MANUFACTURING GYPSUM BOARD IN
SUBSTANTIALLY IDENTICAL TERMS AND FROM THAT DATE UNITED STATES GYPSUM
HAS MAINTAINED RIGID CONTROL OVER THE PRICE AND TERMS OF SALE OF
VIRTUALLY ALL GYPSUM BOARD.  SINCE 1937 THE CONTROL HAS BEEN COMPLETE. 

UP TO THIS POINT THERE IS NO DISPUTE AS TO THE FACTS.  THE GOVERNMENT
CHARGED THAT THE DEFENDANTS ACTED IN CONCERT IN ENTERING INTO THE
LICENSING AGREEMENTS, THAT UNITED STATES GYPSUM GRANTED LICENSES AND
THE OTHER DEFENDANTS ACCEPTED LICENSES WITH THE KNOWLEDGE THAT ALL
OTHER CONCERNS IN THE INDUSTRY WOULD ACCEPT SIMILAR LICENSES, AND THAT
AS A RESULT OF SUCH CONCERT OF ACTION, COMPETITION WAS ELIMINATED BY
FIXING THE PRICE OF PATENTED BOARD, ELIMINATING THE PRODUCTION OF
UNPATENTED BOARD, AND REGULATING THE DISTRIBUTION OF PATENTED BOARD. 
TO SUPPORT ITS ALLEGATIONS, THE GOVERNMENT INTRODUCED IN EVIDENCE THE
LICENSE AGREEMENTS, MORE THAN 600 DOCUMENTARY EXHIBITS CONSISTING OF
LETTERS AND MEMORANDA WRITTEN BY OFFICERS OF THE CORPORATE DEFENDANTS,
AND EXAMINED 28 WITNESSES, MOST OF WHOM WERE OFFICERS OF THE CORPORATE
DEFENDANTS.  SINCE THE APPELLEES' MOTION TO DISMISS WHEN THE GOVERNMENT
HAD FINISHED ITS CASE WAS SUSTAINED, THE APPELLEES INTRODUCED NO
EVIDENCE.  THEY DID CROSS-EXAMINE THE GOVERNMENT'S WITNESSES.  THE
DOCUMENTARY EXHIBITS PRESENT A FULL PICTURE OF THE CIRCUMSTANCES
SURROUNDING THE NEGOTIATION OF THE PATENT LICENSE AGREEMENTS, AND ARE
CHIEFLY RELIED ON BY THE GOVERNMENT TO PROVE ITS CASE. 

ALTHOUGH THE INDUSTRY-WIDE NETWORK OF PATENT LICENSES WAS NOT
ACHIEVED UNTIL 1929, THE GOVERNMENT CLAIMS THAT THE DOCUMENTARY
EXHIBITS SHOW THAT THE PROCESS OF FORMULATION OF THE PLAN BEGAN IN
1925.  ON DECEMBER 12, 1925, AUGUSTUS S. BLAGDEN, PRESIDENT OF BEAVER,
SENT A MEMORANDUM TO SEWELL AVERY, PRESIDENT OF UNITED STATES GYPSUM. 
BEAVER HAD BEEN ADJUDGED AN INFRINGER OF THE UTZMAN PATENT, AND BLAGDEN
AND AVERY HAD NEGOTIATED TERMS FOR SETTLING THE SUIT.  BLAGDEN
TESTIFIED THAT AVERY HAD OFFERED TO SETTLE WITH BEAVER BY GRANTING
BEAVER A LICENSE WITH A PRICE-FIXING LIMITATION AND PROVISION THAT
BEAVER SHOULD PAY DAMAGES FOR PAST INFRINGEMENT AND ACKNOWLEDGE THE
VALIDITY OF UNITED STATES GYPSUM'S PATENTS.  IN THE MEMORANDUM BLAGDEN
ANALYZED IN DETAIL THE CONSEQUENCES THAT WOULD FLOW FROM FIVE POSSIBLE
DECISIONS OF THE CIRCUIT COURT OF APPEALS IF THE DECREE ADJUDGING
BEAVER AN INFRINGER WERE APPEALED.  BLAGDEN NOTED THAT WHETHER THE
COURT UPHELD OR DENIED UNITED STATES GYPSUM'S CLAIM, UNITED STATES
GYPSUM "WOULD LOSE, PERHAPS IRREVOCABLY, ITS PRESENT OPPORTUNITY TO
ORGANIZE THE INDUSTRY AND STABILIZE PRICES."  THE MEMORANDUM FURTHER
POINTED OUT THAT IF THE SUIT WERE SETTLED ON THE TERMS OFFERED BY
AVERY, THE RESULT WOULD BE MORE FAVORABLE TO UNITED STATES GYPSUM THAN
ANY POSSIBLE DECISION BY THE COURT OF APPEALS.  BEAVER WOULD ACCEPT A
LICENSE AND "WOULD AGREE TO USE ITS BEST ENDEAVORS" TO INDUCE OTHER
MANUFACTURERS TO ACCEPT SIMILAR LICENSES; IF BEAVER WERE SUCCESSFUL IN
PERSUADING OTHER MANUFACTURERS TO EXECUTE LICENSES, UNITED STATES
GYPSUM COULD "MAINTAIN A LAWFUL PRICE CONTROL AND AVOID THE NECESSITY
OF A REDUCTION BY PLAINTIFF (UNITED STATES GYPSUM) OF CURRENT PRICES TO
MEET COMPETITION."  UNDER SUCH CIRCUMSTANCES, UNITED STATES GYPSUM
"WOULD BE ABLE TO TAKE A DOMINATING POSITION IN THE INDUSTRY WITH AN
OPPORTUNITY TO CONTROL OR AT LEAST TO PARTICIPATE IN THE CONTROL OF
PRICES THROUGH LEGITIMATE MEANS OF PATENT LICENSES." 

ALTHOUGH THERE IS NO PROOF THAT AVERY APPROVED BLAGDEN'S MEMORANDUM,
BLAGDEN DID ACCEPT A LICENSE ON THE TERMS OFFERED BY AVERY IN JULY,
1926, AND BLAGDEN TESTIFIED THAT HE TALKED TO A NUMBER OF
REPRESENTATIVES FROM OTHER COMPANIES AND URGED THEM TO ACCEPT LICENSES
FROM UNITED STATES GYPSUM.  FRANK J. GRISWOLD, GENERAL MANAGER OF
AMERICAN GYPSUM COMPANY, ALSO WAS ACTIVE IN PROMOTING A SCHEME OF
INDUSTRY-WIDE LICENSING.  ON MAY 12, 1926, GRISWOLD WROTE A LETTER TO
THE PRESIDENT OF AMERICAN, STATING THAT HE HAD TALKED TO BLAGDEN, AND
ADDED THAT "THIS MATTER WILL BE DISCUSSED BY ALL INDEPENDENT WALL BOARD
MANUFACTURERS AT A MEETING IN CHICAGO NEXT WEDNESDAY AFTERNOON." 
GRISWOLD CONCLUDED THE LETTER WITH THE STATEMENT:  "ACCORDING TO THE
PLANS WE HAVE WE FIGURE THAT THERE IS A POSSIBILITY OF US HOLDING THE
PRICE STEADY ON WALL BOARD FOR THE NEXT FOURTEEN OR FIFTEEN YEARS WHICH
MEANS MUCH TO THE INDUSTRY." 

BLAGDEN AND GRISWOLD DID NOT SUCCEED IN PERSUADING OTHER
MANUFACTURERS TO ACCEPT LICENSES IN 1926.  UNIVERSAL ACCEPTED A LICENSE
IN SEPTEMBER, 1926, BUT THERE IS NO EVIDENCE THAT BLAGDEN AND GRISWOLD
PLAYED ANY PART IN NEGOTIATING THE SETTLEMENT.  GRISWOLD SUGGESTED TO
AVERY THAT UNITED STATES GYPSUM OFFER A SHORTER TERM LICENSE, BUT AVERY
WAS UNWILLING TO MAKE SUCH A CONCESSION.  DURING 1927 GRISWOLD AND
BLAGDEN CONTINUED THEIR NEGOTIATIONS.  GRISWOLD AND SAMUEL M. GLOYD,
OWNER OF THE TEXAS CEMENT PLASTER CO., CORRESPONDED WITH EACH OTHER IN
REGARD TO THE LICENSING PROPOSAL.  WHEN GRISWOLD INFORMED GLOYD THAT
ATLANTIC GYPSUM CO. HAD SIGNED A LONG-TERM LICENSE WITH UNITED STATES
GYPSUM, GLOYD REPLIED THAT HE WOULD APPLY FOR A LICENSE RIGHT AWAY. 
PREVIOUSLY GLOYD HAD BEEN TRYING TO SECURE A SHORTER TERM LICENSE. 
GLOYD AND ATLANTIC BOTH SIGNED LICENSES SIMILAR TO THE ORIGINAL LICENSE
GRANTED TO BEAVER.    IN JANUARY 1928 CERTAIN-TEED PRODUCTS CORP.
PURCHASED THE ASSETS OF BEAVER.  CERTAIN-TEED HAD PREVIOUSLY BEEN
MAKING OPEN-EDGE BOARD AND SELLING IT AT LOWER PRICES THAN THE CLOSED
EDGE BOARD MANUFACTURED BY UNITED STATES GYPSUM AND ITS LICENSEES. 
CERTAIN-TEED REFUSED TO ACCEPT THE LICENSE AGREEMENT OF BEAVER AND
UNITED STATES GYPSUM FILED SUIT TO COMPEL CERTAIN-TEED TO ACCEPT THE
LICENSE.  CERTAIN-TEED POSTED A MILLION DOLLAR BOND AND COMMENCED TO
MAKE OPEN-EDGE BOARD AT ALL BEAVER PLANTS.  GEORGE M. BROWN, PRESIDENT
OF CERTAIN-TEED, AND AVERY HAD SEVERAL CONFERENCES AT WHICH THEY
ATTEMPTED TO COMPOSE THEIR DIFFERENCES, BUT WITHOUT RESULT.  THE
GOVERNMENT INTRODUCED IN EVIDENCE A MEMORANDUM WRITTEN BY BROWN, DATED
MARCH 1, 1928, IN WHICH BROWN EXPRESSED CONFIDENCE THAT HE COULD MAKE
OPEN-EDGE BOARD AND SELL IT IN COMPETITION WITH UNITED STATES GYPSUM,
AND THAT HE WAS AFRAID TO SIGN UP A LICENSE WITH PRICE-FIXING
PROVISIONS BECAUSE HIS COMPETITORS WOULD GRANT SECRET REBATES.  BROWN
CONCLUDED THAT CERTAIN-TEED SHOULD ANSWER THE SUIT OF UNITED STATES
GYPSUM TO ENFORCE THE BEAVER LICENSE BY CLAIMING THAT THE SUIT WAS
FILED NOT IN THE INTEREST OF ROYALTIES BUT FOR THE SOLE PURPOSE OF
TRADE DOMINATION AND MONOPOLY AND PRICE CONTROL.  BROWN CONCLUDED WITH
THE STATEMENT THAT UNITED STATES GYPSUM'S "DETERMINATION TO GATHER IN A
MONOPOLY, IF POSSIBLE, LEADS THEM TO RISK EVERYTHING FOR SUCH
DOMINATION BECAUSE OF THE BIG REWARDS POSSIBLE, IF THEY CAN SUCCEED." 
CERTAIN-TEED DID FILE AN ANSWER TO THE SUIT COUCHED IN THOSE TERMS. 
GRISWOLD TESTIFIED THAT IN A CONVERSATION WITH BROWN IN THE FOLLOWING
MONTH BROWN STATED THAT HE MIGHT POSSIBLY CONSIDER TAKING OUT A LICENSE
IF "ALL OF THE OTHER MANUFACTURERS, OR CERTAIN ONES OF THEM" TOOK OUT A
LICENSE.  GRISWOLD ALSO WROTE THE PRESIDENT OF AMERICAN THAT HE HAD HAD
A CONFERENCE WITH BROWN AT WHICH BROWN HAD SAID THAT "THEY WERE WILLING
AT THAT TIME TO ENTER INTO A LICENSE AGREEMENT WITHOUT ANY PARTICULAR
CHANGES IN IT PROVIDING ALL OF THE MANUFACTURERS, INCLUDING EBSARY,
WOULD ENTER INTO IT AND MAKE IT ONE HUNDRED PERCENT." 

NO SETTLEMENT WAS REACHED BETWEEN UNITED STATES GYPSUM AND CERTAIN
TEED IN 1928, AND NO OTHER LICENSE AGREEMENTS WERE SIGNED.  A MEETING
OF REPRESENTATIVES OF THE PRINCIPAL NON-LICENSEE MANUFACTURERS TOOK
PLACE IN OCTOBER, AND IN NOVEMBER THE BOARD OF DIRECTORS OF NATIONAL
ADOPTED A RESOLUTION AUTHORIZING THE OFFICIALS OF THE COMPANY TO ENTER
INTO A LICENSE AGREEMENT.  BESIDES CERTAIN-TEED AND NATIONAL, AMERICAN,
EBSARY, NIAGARA, AND KELLEY PLASTERBOARD COMPANY MANUFACTURED GYPSUM
BOARD BUT DID NOT HOLD LICENSES FROM UNITED STATES GYPSUM. 

THE PATENT LICENSES IN FORCE AT THE BEGINNING OF 1929 PROVIDED THAT
UNITED STATES GYPSUM COULD FIX PRICES ONLY DURING THE TERM OF THE
PRINCIPAL UTZMAN PATENT, WHICH WAS SCHEDULED TO EXPIRE ON AUGUST 6,
1929, ALTHOUGH THE REMAINING FEATURES OF THE AGREEMENTS WERE TO REMAIN
IN FORCE UNTIL THE EXPIRATION OF THE LAST PATENT INCLUDED UNDER THE
LICENSE, WHICH WAS IN 1937.  IN NEGOTIATIONS IN 1929, VARIOUS
DEFENDANTS EXPRESSED CONCERN OVER THE POSSIBILITY OF AN EFFECTIVE PLAN
OF PRICE FIXING IN VIEW OF THE IMMINENT EXPIRATION OF THE UTZMAN
PATENT.  IN A LETTER DATED JANUARY 9, J. F. HAGGERTY, PRESIDENT OF
NATIONAL, WROTE EUGENE HOLLAND, PRESIDENT OF UNIVERSAL, ASKING HIS
VIEWS AS TO POSSIBILITY OF CONTINUING PRICE CONTROL AFTER THE
EXPIRATION OF THE UTZMAN PATENT.  HOLLAND IN REPLY WROTE AS FOLLOWS: 

"YOU WILL REMEMBER THAT MR. AVERY MADE IT VERY CLEAR TO US THAT IF
THIS PLAN COULD NOT BE WORKED OUT ON THE UTZMAN PATENT THAT THERE WERE
OTHER PATENTS AVAILABLE AND WE WERE ALL AGREED THAT THE FACT THAT THE
UTZMAN PATENT EXPIRES NEXT AUGUST IS NOT A PRACTICAL REASON FOR
CONTINUING THE CONFLICT." 

HOLLAND ALSO STATED:  "I AM QUITE SURE THAT MR. AVERY WOULD NOT BE
INTERESTED IN NEGOTIATING SETTLEMENTS UNLESS EVERYONE INVOLVED WAS
INCLUDED."  IN POINT OF FACT, HOLLAND'S INTERPRETATION OF AVERY'S VIEWS
WAS INCORRECT; SEVERAL MONTHS LATER LICENSES WERE GRANTED TO FOUR
UNLICENSED MANUFACTURERS BUT NOT TO AMERICAN OR KELLEY.  OTHER EXHIBITS
SUGGEST THAT THE PROSPECTIVE LICENSEES WERE INTERESTED IN ACCEPTING
LICENSES AT THE SAME TIME.  IN HIS LETTER OF JANUARY 9, HAGGERTY WROTE
AS FOLLOWS: 

"THE QUESTION NOW IN MY MIND IS WHETHER OR NOT THE OTHER FOUR BOARD
MAKERS, WHO ARE OUTSIDE THE LICENSE AGREEMENT, FEEL THAT IT WOULD BE
ADVANTAGEOUS TO GO IN WITHOUT THE AMERICAN GYPSUM COMPANY.  IT WOULD
SEEM TO ME THAT THE CHIEF VALUE IN A MEETING WOULD BE TO DISCUSS THAT
POINT." 

ON MAY 14, 1929, THE BOARD OF DIRECTORS OF NATIONAL HELD A MEETING
"FOR THE PURPOSE OF DISCUSSING THE LICENSE AGREEMENT SUBMITTED TO ALL
THE MANUFACTURERS OF GYPSUM PRODUCTS IN THE UNITED STATES EAST OF THE
ROCKY MOUNTAINS BY THE UNITED STATES GYPSUM CO."  THE MINUTES OF THE
MEETING FURTHER QUOTED THE CHAIRMAN AS SAYING THAT "HE HAD BEEN
DEFINITELY INFORMED THAT ALL OTHER MANUFACTURERS OF GYPSUM PRODUCTS
EAST OF THE ROCKY MOUNTAINS, EXCEPT THE AMERICAN GYPSUM COMPANY, HAD
AGREED TO SIGN THE LICENSE CONTRACT IN SUBSTANTIALLY THE FORM AS
SUBMITTED TO THIS BOARD."  THE BOARD OF DIRECTORS AUTHORIZED THE
EXECUTION OF THE PROPOSED LICENSE CONTRACT. 

TWO DAYS LATER NATIONAL SIGNED THE LICENSE AGREEMENT.  ON THE
FOLLOWING DAY NATIONAL SENT A TELEGRAM TO AVERY AS FOLLOWS: 

"OUR CONTRACT SIGNED AND IN MAIL REEB (OF NIAGARA) READY STOP WE ARE
WORKING WITH EBSARY WITH HOPE OF EVERYBODY BEING SET BY SATURDAY TO
JUSTIFY YOUR CALLING MEETING ALL BOARD MAKERS MONDAY IF YOU LIKE." 

ON MAY 18 AVERY DISPATCHED IDENTICAL TELEGRAMS TO UNITED STATES
GYPSUM'S LICENSEES, AND TO CERTAIN-TEED AND EBSARY, AS FOLLOWS: 

"MR. KLING (OF AMERICAN) HAS SENT IN A CONTRACT WITH MATERIAL CHANGES
AND DECLARES HE WILL NOT ATTEND MEETING UNLESS THESE CHANGES ARE
ACCEPTED BY US STOP WE CANNOT ACCEPT THEM AND REGRET THAT THE TUESDAY
MEETING WILL BE FUTILE UNLESS OTHER COMPANIES WISH TO PROCEED AS
OUTLINED WITHOUT AMERICAN LICENSE." 

ON MAY 20 AVERY WROTE GLOYD OF TEXAS CEMENT PLASTER, A LICENSEE SINCE
1927, STATING THAT ALTHOUGH AMERICAN WAS UNWILLING TO ACCEPT A LICENSE,
OFFICERS OF CERTAIN-TEED, NIAGARA, EBSARY, AND NATIONAL HAD EXPRESSED
THEMSELVES FAVORABLY "TO THIS ADJUSTMENT" AND "IT IS NOT IMPROBABLE
THAT THE MATTER MAY BE CLOSED AT THE MEETING TOMORROW OR SOON
THEREAFTER." 

ON THE FOLLOWING DAY, A MEETING OF REPRESENTATIVES OF ALL BUT ONE OF
THE LICENSED MANUFACTURERS, AND ALL UNLICENSED MANUFACTURERS EXCEPT
AMERICAN AND KELLEY, TOOK PLACE IN CHICAGO.  THE THREE UNLICENSED
MANUFACTURERS WHO WERE PRESENT - CERTAIN-TEED, EBSARY AND NIAGARA -
SIGNED LICENSE AGREEMENTS. 

AT THE SAME MEETING, AVERY EXPLAINED TO THE LICENSEES THAT UNITED
STATES GYPSUM HAD ACQUIRED APPLICATIONS FOR A PATENT COVERING SO-CALLED
"BUBBLE BOARD" AND SUGGESTED THAT THE LICENSEES TAKE OUT LICENSES UNDER
THESE APPLICATIONS.  THE APPLICATIONS COVERED A PROCESS FOR MAKING
GYPSUM BOARD BY INTRODUCING A SOAP FOAM IN THE GYPSUM SLURRY WHICH
WOULD RESULT IN A LIGHTER AND CHEAPER BOARD.  AVERY SUBSEQUENTLY MAILED
PROPOSED LICENSE AGREEMENTS UNDER THE "BUBBLE BOARD" APPLICATIONS TO
THE LICENSEES.  GEORGE M. BROWN OF CERTAIN-TEED ON JUNE 4TH
ACKNOWLEDGED RECEIPT OF THE LICENSE PROPOSAL IN A NONCOMMITTAL REPLY,
BUT COMPOSED A MEMORANDUM FOR HIS OWN FILES IN WHICH HE COMMENTED THAT
THE SAVINGS RESULTING FROM TAKING A LICENSE WOULD BE DOUBTFUL, AND THEN
ADDED: 

"THEY WOULD HAVE A PRICE CONTROL OF OUR BUSINESS, WHICH MIGHT BE TO
OUR ADVANTAGE AND MIGHT BE TO OUR DISADVANTAGE IN FUTURE.  THEY SHOULD
BE JUST AS ANXIOUS TO HAVE US USE THIS AS WE SHOULD BE TO GET IT IF
THERE ARE TO BE THE BENEFITS THAT THEY ANTICIPATE IN STABILIZING THE
WHOLE INDUSTRY BY MAKING A UNIFORM PRODUCT AND GET AWAY FROM THE FIERCE
WARFARES BETWEEN DIFFERENT PRODUCTS LIKE WE HAVE RECENTLY HAD.  THE
SAVING IS TOO SLIGHT TO CAUSE US VERY GREAT WORRY EVEN IF NEVER
PERMITTED TO USE IT AND THE DOOR WILL CERTAINLY BE OPEN LATER FOR ITS
USE IF IT HAS THE MERIT THAT THEY BELIEVE IT HAS.  UNDER A CONTRACT
SUFFICIENTLY LIBERAL, WE WOULD PROCEED AT ONCE." 

ON JUNE 6TH THE LICENSEES MET AGAIN IN CHICAGO TO DISCUSS THE
QUESTION OF ACCEPTING A LICENSE UNDER THE "BUBBLE BOARD" PATENTS. 
SHORTLY THEREAFTER CERTAIN-TEED AGREED TO TAKE OUT A LICENSE.  NATIONAL
ALSO AGREED TO ACCEPT A LICENSE; THE MINUTES OF THE MEETING OF THE
BOARD OF DIRECTORS ON JULY 23 READ IN PART AS FOLLOWS: 

"THE PRESIDENT STATED THAT THE UNITED STATES GYPSUM COMPANY HAS BEEN
WORKING ON A PLAN TO STABILIZE THE GYPSUM INDUSTRY AND HAS OFFERED TO
LICENSE THE ENTIRE INDUSTRY UNDER THE NEW METHOD OF MANUFACTURING
GYPSUM WALL BOARD KNOWN AS THE 'BUBBLE SYSTEM.'  THE LICENSE AGREEMENTS
SUBMITTED TO EACH OF THE WALL BOARD MANUFACTURERS CONTAIN PRICE FIXING
CLAUSES AND UNDER THE AGREEMENTS SUBMITTED THE PRICES OF WALL BOARD
WOULD BE FIXED FOR THE WHOLE INDUSTRY FOR THE TERM OF APPROXIMATELY
SEVENTEEN YEARS." 

THE BOARD PASSED A RESOLUTION AUTHORIZING THE EXECUTIVE COMMITTEE TO
NEGOTIATE A LICENSE AGREEMENT, "PROVIDED THAT THE UNITED STATES GYPSUM
COMPANY, BY VIRTUE OF THE AGREEMENT WITH THIS CORPORATION AND WITH
OTHER MANUFACTURERS OF GYPSUM WALL BOARD, SHALL CONTROL THE PRICE OF
WALL BOARD SOLD IN THE UNITED STATES AND ITS POSSESSIONS." 

TWO DAYS LATER ANOTHER CONFERENCE OF LICENSEES WAS HELD IN CHICAGO. 
C. O. BROWN, VICE-PRESIDENT OF CERTAIN-TEED, PREPARED A MEMORANDUM FOR
GEORGE M. BROWN, PRESIDENT OF CERTAIN-TEED, DESCRIBING WHAT HAPPENED AT
THAT MEETING.  ACCORDING TO THE MEMORANDUM, NATIONAL AND UNIVERSAL WERE
UNWILLING TO ACCEPT "BUBBLE BOARD" LICENSES UNTIL THEY HAD SETTLED
THEIR LITIGATION OVER NATIONAL'S INFRINGEMENT OF UNIVERSAL'S STARCH
PATENT.  THAT PATENT INCLUDED PROCESS AND PRODUCT CLAIMS ON WALLBOARD
MADE WITH STARCH.  BROWN NOTED THAT UNITED STATES GYPSUM WAS WORKING ON
A PROPOSAL TO COMBINE THE STARCH AND "BUBBLE BOARD" PROCESSES; ALTHOUGH
SUCH A COMBINATION WOULD HAVE TECHNOLOGICAL ADVANTAGES, BROWN COMMENTED
ON THE FACT THAT THE STARCH PATENT HAD ALREADY BEEN ISSUED "SO A
COMBINATION OF THE TWO SYSTEMS WOULD GIVE A PATENT TO WORK UNDER IN THE
MANUFACTURE AND SALE OF GYPSUM WALLBOARD IMMEDIATELY, WHEREAS UNDER
ONLY THE BUBBLE PROCESS THERE WOULD BE AN INTERIM BETWEEN AUGUST 6TH
AND THE DATE OF ISSUANCE OF THE BUBBLE PATENT WHERE THERE WOULD BE NO
PATENT CONTROL.  THERE IS, OF COURSE, CONSIDERABLE BENEFIT TO HAVING
PATENT CONTROL CONTINUE WITHOUT A BREAK."  BROWN FURTHER NOTED THAT
AVERY WAS TRYING TO WORK OUT A PROPOSITION WITH HOLLAND TO BUY THE
STARCH PATENT OR TO LICENSE THE INDUSTRY UNDER BOTH PROCESSES. 

ANOTHER MEETING OF LICENSEES WAS HELD IN CHICAGO ON AUGUST 6, THE DAY
ON WHICH THE UTZMAN PATENT EXPIRED.  IN A MEMORANDUM SUMMARIZING WHAT
HAPPENED AT THE MEETING, C. O. BROWN SAID THAT IT HAD BEEN AGREED THAT
UNIVERSAL WOULD ASSIGN THE STARCH PATENT TO UNITED STATES GYPSUM, AND
THE LATTER COMPANY WOULD ISSUE A SINGLE LICENSE CONTRACT COVERING ALL
PATENTS AND PATENT APPLICATIONS.  BROWN FURTHER REPORTED THAT "ALL OF
THE INDEPENDENT GYPSUM COMPANIES ARE WILLING TO SIGN ON THIS BASIS" AND
THAT "THE ATTORNEYS FEEL THAT SUCH A CONTRACT WOULD BE EXCEPTIONALLY
STRONG AND PRICE CONTROL COULD BE MAINTAINED FOR THE LIFE OF THE
CONTRACT WITHOUT DIFFICULTY."  ON AUGUST 27 THE BOARD OF DIRECTORS OF
NATIONAL HELD A MEETING AT WHICH THE PRESIDENT WAS AUTHORIZED TO SIGN A
LICENSE WITH UNITED STATES GYPSUM COVERING THE "BUBBLE BOARD" AND
STARCH PATENTS "PROVIDED THAT ALL THE PRESENT LICENSEES OF THE UNITED
STATES GYPSUM COMPANY ENTER INTO A SIMILAR LICENSE AND PROVIDED FURTHER
THAT IN THE JUDGMENT OF THE PRESIDENT SUCH ACTION WILL RESULT IN LEGAL
STABILIZATION OF THE MARKETS." 

SOON THEREAFTER, NATIONAL, CERTAIN-TEED, EBSARY, NIAGARA AND ATLANTIC
EXECUTED LICENSES WITH UNITED STATES GYPSUM, TO BECOME EFFECTIVE ON THE
DATE WHEN UNIVERSAL'S RECEIVER TRANSFERRED THE STARCH PATENTS TO UNITED
STATES GYPSUM.  ON NOVEMBER 5 THE STARCH PATENTS WERE ASSIGNED TO
UNITED STATES GYPSUM, AND ON THE SAME DATE UNIVERSAL ALSO ACCEPTED A
LICENSE.  ON NOVEMBER 25 AMERICAN SETTLED ITS LITIGATION WITH UNITED
STATES GYPSUM AND ACCEPTED A LICENSE.  ALL MANUFACTURERS OF GYPSUM
BOARD WERE NOW LICENSED BY UNITED STATES GYPSUM, EXCEPT KELLEY
PLASTERBOARD CO., AND THAT CONCERN ACCEPTED A LICENSE IN APRIL OF THE
FOLLOWING YEAR.  TEXAS CEMENT PLASTER, A LICENSEE UNDER THE UTZMAN
PATENT, DID NOT ACCEPT A LICENSE UNDER THE STARCH AND "BUBBLE BOARD"
PATENTS UNTIL 1937 WHEN THE ORIGINAL LICENSE EXPIRED.  TEXAS WAS THUS
FREE TO SELL BOARD AT ANY PRICE FROM 1929 TO 1937. 

THE CONTRACTS WHICH BECAME EFFECTIVE IN NOVEMBER 1929 WERE IN
SUBSTANTIALLY IDENTICAL TERMS.  THE LICENSE WITH UNIVERSAL CONTAINED
PREFERENTIAL ROYALTY TERMS WHICH WERE GRANTED AS CONSIDERATION FOR THE
TRANSFER OF THE STARCH PATENTS; EVERY OTHER LICENSE (EXCEPT THAT OF
TEXAS) PROVIDED THAT IF THE LICENSOR SHOULD SUBSEQUENTLY GRANT MORE
FAVORABLE TERMS TO ANY LICENSEE (EXCEPT UNIVERSAL), THE SAME MORE
FAVORABLE TERMS WOULD BE GRANTED TO THE FIRST LICENSEE.  EACH LICENSEE
AGREED TO PAY AS ROYALTY A STIPULATED PERCENTAGE ON THE SELLING PRICE
OF "ALL PLASTER BOARD AND GYPSUM WALLBOARD OF EVERY KIND" WHETHER OR
NOT MADE BY PATENTED PROCESSES OR EMBODYING PRODUCT CLAIMS.  THE
CONTRACT COVERED FIFTY PATENTS AND SEVEN PATENT APPLICATIONS, INCLUDING
THE STARCH PATENT AND THE "BUBBLE BOARD" APPLICATIONS; THE CONTRACT WAS
TO RUN UNTIL THE MOST JUNIOR PATENT EXPIRED.  AS TWO "BUBBLE BOARD"
PATENTS WERE ISSUED IN 1937, THE LICENSES RAN UNTIL 1954.  THE
LICENSEES AGREED NOT TO SELL PATENTED WALLBOARD TO MANUFACTURING
DISTRIBUTORS UNLESS UNITED STATES GYPSUM GAVE ITS CONSENT AS TO EACH
PROSPECTIVE PURCHASER.  AS IN THE PREVIOUS CONTRACTS, UNITED STATES
GYPSUM RESERVED THE RIGHT TO FIX THE MINIMUM PRICE AT WHICH EACH
LICENSEE SOLD WALLBOARD EMBODYING THE LICENSOR'S PATENTS, THE LICENSOR
AGREEING THAT SUCH MINIMUM PRICE WOULD BE NOT GREATER THAN THE PRICE AT
WHICH THE LICENSOR ITSELF OFFERED TO SELL.  THE MORE IMPORTANT
PROVISIONS OF THE LICENSE TO THIS LITIGATION ARE SET FORTH IN AN
APPENDIX TO THIS OPINION, POST, P. 404.  NOTHING HAS BEEN OMITTED THAT
APPEARS TO BE SIGNIFICANT ON THE ISSUES CONSIDERED.    IN 1934 AND 1935
UNITED STATES GYPSUM OFFERED SUPPLEMENTAL LICENSES TO PRACTICE A PATENT
COVERING METALLIZED BOARD, WHICH WAS ACCEPTED BY ALMOST ALL LICENSEES,
AND IN 1936 UNITED STATES GYPSUM OFFERED LICENSES UNDER ITS PERFORATED
LATH PATENT WHICH WERE ALSO ACCEPTED BY MOST LICENSEES.  THESE
SUPPLEMENTAL LICENSES CONTAINED PROVISIONS ALLOWING UNITED STATES
GYPSUM TO FIX THE MINIMUM PRICE ON BOARD MADE ACCORDING TO THE PATENTS
WHICH WERE LICENSED.    THE GOVERNMENT CHARGED THAT THE EXECUTION OF
THE LICENSE AGREEMENTS IN MAY AND NOVEMBER 1929 MARKED A TURNING POINT
IN THE GYPSUM INDUSTRY.  THE GOVERNMENT INTRODUCED EVIDENCE TENDING TO
SHOW THAT THE PRICE OF FIRST QUALITY WALLBOARD WAS RAISED, THAT UNITED
STATES GYPSUM STANDARDIZED THE TYPE OF BOARD SOLD BY REQUIRING ITS
LICENSEES TO SELL NO. 2 WALLBOARD AND SECONDS AT THE SAME PRICE AS
STANDARD WALLBOARD, AND STANDARDIZED THE METHODS OF SALE SO THAT NO
LICENSEE COULD OFFER MORE FAVORABLE TERMS TO A CUSTOMER THAN ANY OTHER
LICENSEE. 

ALTHOUGH THE LICENSE CONTRACTS GAVE THE LICENSOR THE RIGHT ONLY TO
FIX THE MINIMUM PRICE AT WHICH THE LICENSEE SHOULD SELL, UNITED STATES
GYPSUM ISSUED A SERIES OF BULLETINS WHICH DEFINED IN MINUTE DETAIL BOTH
THE PRICES AND TERMS OF SALE FOR PATENTED GYPSUM BOARD.  THEY ARE
PRINTED ON NEARLY A THOUSAND PAGES OF THE RECORD.  THE BULLETINS
ADOPTED A BASING POINT SYSTEM OF PRICING, ACCORDING TO WHICH EACH
LICENSEE WAS REQUIRED TO QUOTE A PRICE DETERMINED BY TAKING THE MILL
PRICE AT THE NEAREST BASING POINT AND ADDING THE ALL RAIL FREIGHT FROM
THE BASING POINT TO THE DESTINATION.  THE FREIGHT WAS TO BE COMPUTED ON
SPECIFIED UNIFORM BILLING WEIGHTS, IN ORDER TO PREVENT VARIATIONS IN
FREIGHT ARISING FROM THE DIFFERENCES IN WEIGHT OF BOARD MADE BY
DIFFERENT MANUFACTURERS, AND EACH LICENSEE WAS DIRECTED TO CHARGE
EXACTLY THE SAME SWITCHING, CARTAGE, AND EXTRA DELIVERY CHARGES. 
SPECIFIED BOARD SIZES AND MINIMUM QUANTITIES WERE PRESCRIBED, LICENSEES
WERE FORBIDDEN TO EMPLOY COMMISSION SALESMEN WITHOUT THE WRITTEN
CONSENT OF THE LICENSOR, REGULATIONS WERE PRESCRIBED AS TO THE SIZE,
QUANTITY AND MARKINGS OF GYPSUM BOARD USED FOR PACKING SHIPMENTS,
GRANTING OF LONG-TERM CREDIT WAS PROHIBITED, SALES ON CONSIGNMENT WERE
ENJOINED AND LICENSEES WERE FORBIDDEN TO DELIVER BOARD DIRECTLY TO A
BUILDING SITE. 

IT IS NOT PRACTICABLE TO QUOTE ONE OF THE HUNDREDS OF COMPREHENSIVE
BULLETINS ON PRICES AND TERMS.  THE INDUSTRY ACCEPTED DIRECTIONS FOR
DISTRIBUTION OF PRODUCT AS COROLLARY TO PRICE CONTROL, SO THAT PRICES
WOULD NOT BE INFRINGED BY VARIATIONS OF SELLER CONTRACTS.  THE DETAIL
OF DIRECTIVES IS WELL ILLUSTRATED BY THE DIRECTIVE FOR COMPUTATION OF
FREIGHT TO BE ADDED TO THE MILL PRICE AND THE PROVISION AGAINST SUBTLE
PRICE REDUCTION.  THE EXCERPTS BELOW ARE FROM THE BOARD LICENSE
BULLETIN OF JUNE 10, 1939.  FN3 

IN ORDER TO INSURE COMPLIANCE WITH THE PRICE BULLETINS, UNITED STATES
GYPSUM ESTABLISHED A WHOLLY OWNED SUBSIDIARY IN 1932 NAMED BOARD
SURVEY, INC. LICENSEES WERE INVITED TO SEND IN COMPLAINTS AS TO
VIOLATIONS OF PRICING BULLETINS TO BOARD SURVEY AND THAT ORGANIZATION
FORWARDED THE COMPLAINTS TO THE ALLEGED DELINQUENT LICENSEES.  BOARD
SURVEY WAS AUTHORIZED TO MAKE A THOROUGH CHECK-UP OF ALL REPORTED
VIOLATIONS AND TO TAKE SUCH ACTION AS IT MIGHT DEEM NECESSARY OR PROPER
TO PROTECT UNITED STATES GYPSUM'S RIGHTS UNDER THE LICENSE AGREEMENTS
AND PATENTS.  ALTHOUGH THE RECORD DISCLOSES NO INSTANCE IN WHICH BOARD
SURVEY TOOK OR EVEN THREATENED TO TAKE LEGAL ACTION AGAINST ANY
LICENSEE, THERE ARE MANY INSTANCES IN WHICH BOARD SURVEY SENT LETTERS
TO LICENSEES REQUESTING AN EXPLANATION AS TO ALLEGED VIOLATIONS. 
MEETINGS OF LICENSEES WERE HELD AT WHICH DOUBTFUL PROVISIONS OF THE
PRICE BULLETINS WERE EXPLAINED.  THE TRIAL COURT FOUND THAT "IN THE
MAIN" LICENSEES COMPLIED WITH THE BULLETIN CONDITIONS. 

THE GOVERNMENT FURTHER CHARGED THAT THE DEFENDANTS HAD DISCONTINUED
THE PRODUCTION OF UNPATENTED OPEN-EDGE BOARD, ELIMINATED JOBBERS BY
REQUIRING JOBBERS TO PURCHASE BOARD AT THE SAME PRICE AS BOARD SOLD TO
DEALERS, INDUCED MANUFACTURING DISTRIBUTORS TO OBSERVE BULLETIN PRICES
UPON RESALE OF BOARD PURCHASED FROM LICENSEES, AND STABILIZED THE PRICE
OF GYPSUM PLASTER AND OTHER UNPATENTED PRODUCTS. 

IT IS UNDISPUTED THAT AFTER 1929 THE DEFENDANTS CEASED TO MANUFACTURE
OPEN-EDGE BOARD; THE GOVERNMENT CLAIMS THAT PRODUCTION OF THE
UNPATENTED BOARD WAS DISCONTINUED IN ORDER TO PROTECT THE PATENTED
BOARD FROM COMPETITION.  PRIOR TO 1929 OPEN-EDGE BOARD HAD SOLD AT
LOWER PRICES THAN CLOSED-EDGE BOARD, AND THE GOVERNMENT'S EXHIBITS SHOW
THAT THE OFFICERS OF THE CORPORATE DEFENDANTS REALIZED THAT THERE COULD
BE NO EFFECTIVE STABILIZATION OF PRICES ON CLOSED-EDGE BOARD AS LONG AS
OPEN-EDGE BOARD WAS SOLD WITHOUT PRICE CONTROL.  THE LICENSE AGREEMENTS
PROVIDED THAT ROYALTIES SHOULD BE PAID ON THE SALES OF ALL BOARD SOLD,
PATENTED OR UNPATENTED, A PROVISION WHICH WOULD TEND TO DISCOURAGE THE
PRODUCTION OF HIGHER COST UNPATENTED BOARD.  ALTHOUGH THE GOVERNMENT
PRODUCED NO EVIDENCE OF ANY AGREEMENT BETWEEN THE DEFENDANTS TO
ELIMINATE PRODUCTION OF OPEN-EDGE BOARD, CORPORATE OFFICERS OF THE
LICENSEES TESTIFIED THAT THEY ANTICIPATED THAT ONE RESULT OF INDUSTRY
WIDE LICENSING WOULD BE THE ELIMINATION OF OPEN-EDGE BOARD. 

THE MAY 1929 LICENSES REQUIRED LICENSEES TO OBTAIN THE CONSENT OF THE
LICENSOR BEFORE SELLING BOARD TO MANUFACTURING DISTRIBUTORS OR TO
JOBBERS AND A PRICE BULLETIN ISSUED UNDER THOSE LICENSES ALLOWED
LICENSEES TO GRANT A 10% DISCOUNT TO BOTH CLASSES.  THE NOVEMBER 1929
LICENSES, HOWEVER, ELIMINATED THE CONSENT REQUIREMENT WITH RESPECT TO
JOBBERS, ALTHOUGH IT WAS RETAINED WITH RESPECT TO MANUFACTURING
DISTRIBUTORS. 

THE JOBBERS' DISCOUNT WAS CONTINUED IN BULLETINS ISSUED UNDER THE
LATER LICENSES UNTIL AUGUST 8, 1930, WHEN UNITED STATES GYPSUM ORDERED
THAT THE DISCOUNT BE ELIMINATED.  ALTHOUGH JOBBERS COULD STILL BUY
BOARD IF THEY SO DESIRED, JOBBERS COULD REMAIN IN BUSINESS ONLY BY
SELLING TO DEALERS AT AN ADVANCE OVER THE BULLETIN PRICES.  THE COURT
BELOW FOUND THAT SOME JOBBERS WERE ABLE TO REMAIN IN BUSINESS BY
SELLING BOARD IN ODD LOTS TO DEALERS WHO DID NOT WISH TO BUY THE
MINIMUM LOT REQUIRED IN THE PRICE BULLETINS.  THE GOVERNMENT POINTS TO
THE DEFINITION OF "JOBBER" IN THE LICENSE AGREEMENTS AS "THOSE WHO DO
NOT MANUFACTURE BUT BUY AND SELL PLASTERBOARD OR GYPSUM WALLBOARD IN
STRAIGHT CARS OR IN MIXED CARS WITH OTHER BUILDING MATERIAL AND WHO DO
NOT SELL AT RETAIL," AND POINTS TO UNCONTRADICTED TESTIMONY THAT
JOBBERS AS SO DEFINED WERE ELIMINATED. 

WE DO NOT STOP TO SET FORTH THE EVIDENCE UPON WHICH THE GOVERNMENT
RELIED TO SUPPORT ITS CHARGE THAT THE DEFENDANTS FIXED PRICES AT WHICH
MANUFACTURING DISTRIBUTORS SOLD GYPSUM BOARD WHICH THEY HAD PURCHASED
FROM UNITED STATES GYPSUM OR ITS LICENSEES, AS THAT ISSUE IS NOT
NECESSARY FOR A DECISION OF THE CASE.  TO SUPPORT THE CHARGE OF
STABILIZING THE PRICE OF UNPATENTED PLASTER, THE GOVERNMENT CITED
LETTERS WRITTEN BY OFFICERS OF THE CORPORATE DEFENDANTS SHOWING THAT
THEY ANTICIPATED THAT PRICE STABILIZATION IN PATENTED BOARD WOULD BE
ACCOMPANIED WITH STABILIZATION OF ALL GYPSUM PRODUCTS.  THE TRIAL COURT
FOUND THAT THE PRICE OF PLASTER AND MISCELLANEOUS GYPSUM PRODUCTS IN
FACT DID INCREASE AFTER 1929.  THE GOVERNMENT CHARGED THAT PLASTER
PRICES WERE STABILIZED BY REQUIRING LICENSEES WHO SOLD PLASTER TOGETHER
WITH PATENTED BOARD TO SELL PLASTER AT PREVAILING PRICES.  BOARD AND
PLASTER WERE USUALLY SOLD TOGETHER AND THE DEFENDANTS CLAIM THAT
CUTTING OF PRICES ON PLASTER, IN SALES OF THE TWO TOGETHER, OPERATED IN
EFFECT AS A REBATE ON THE PRICE OF BOARD, AND HENCE WAS LEGALLY SUBJECT
TO CONTROL.  THE GOVERNMENT INTRODUCED IN EVIDENCE A LARGE NUMBER OF
COMPLAINTS TO BOARD SURVEY BY LICENSEES AS TO THEIR COMPETITORS'
FAILURE TO MAINTAIN PREVAILING PRICES ON PLASTER.  A BULLETIN PROVISION
FORBIDDING REBATES AND ALLOWANCES STATED THAT A SALE OF BOARD AT POSTED
PRICES WOULD BE IN VIOLATION OF THE LICENSE IF THE LICENSEE REDUCED THE
PRICE OF OTHER PRODUCTS, AND BOARD SURVEY IN SUMMARIZING VIOLATIONS OF
BULLETIN TERMS REVEALED THROUGH AUDIT OF THE LICENSEES' BOOKS LISTED
"PRICE CONCESSIONS ON OTHER MATERIAL IN CONNECTION WITH BOARD SALES." 

     II. 

APPELLEES ADMIT THAT IN THE ABSENCE OF WHATEVER PROTECTION IS
AFFORDED BY VALID PATENTS THE LICENSING ARRANGEMENTS DESCRIBED WOULD BE
IN VIOLATION OF THE SHERMAN ACT.  ACCORDINGLY, THE GOVERNMENT SOUGHT TO
AMEND ITS COMPLAINT TO ALLEGE THAT THE "BUBBLE BOARD" PATENTS WERE NOT
VALID.  THE TRIAL COURT HELD THAT THE GOVERNMENT WAS ESTOPPED TO ATTACK
THE VALIDITY OF THE PATENTS IN THE PRESENT PROCEEDING, ON THE GROUND
THAT SUCH ATTACK WOULD CONSTITUTE A REVIEW OF ACTION BY THE
COMMISSIONER OF PATENTS, WHICH WAS NOT AUTHORIZED BY STATUTE.  FN4  THE
TRIAL COURT THOUGHT THAT THE ISSUE WAS CONTROLLED BY UNITED STATES V.
BELL TELEPHONE CO., 167 U.S. 224, IN WHICH THE UNITED STATES WAS HELD
WITHOUT STANDING TO BRING A SUIT IN EQUITY TO CANCEL A PATENT ON THE
GROUND OF INVALIDITY. 

WHILE THIS ISSUE NEED NOT BE DECIDED TO DISPOSE OF THIS CASE, IT
SEEMS INADVISABLE TO LEAVE THE DECISION AS A PRECEDENT.  HURN V.
OURSLER, 289 U.S. 238, 240.  WE CANNOT AGREE WITH THE CONCLUSION OF THE
TRIAL COURT.  THE UNITED STATES DOES NOT CLAIM THAT THE PATENTS ARE
INVALID BECAUSE THEY HAVE BEEN EMPLOYED IN VIOLATION OF THE SHERMAN ACT
AND THAT A DECREE SHOULD ISSUE CANCELING THE PATENTS; RATHER THE
GOVERNMENT CHARGES THAT THE DEFENDANTS HAVE VIOLATED THE SHERMAN ACT
BECAUSE THEY GRANTED LICENSES UNDER PATENTS WHICH IN FACT WERE
INVALID.  IF THE GOVERNMENT WERE TO SUCCEED IN SHOWING THAT THE PATENTS
WERE IN FACT INVALID, SUCH A FINDING WOULD NOT IN ITSELF RESULT IN A
JUDGMENT FOR CANCELLATION OF THE PATENTS.  FN5 

IN AN ANTITRUST SUIT INSTITUTED BY A LICENSEE AGAINST HIS LICENSOR WE
HAVE REPEATEDLY HELD THAT THE LICENSEE MAY ATTACK THE VALIDITY OF THE
PATENT UNDER WHICH HE WAS LICENSED, BECAUSE OF THE PUBLIC INTEREST IN
FREE COMPETITION, EVEN THOUGH THE LICENSEE HAS AGREED IN HIS LICENSE
NOT TO DO SO.  SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S.
173; KATZINGER CO. V. CHICAGO MFG. CO., 329 U.S. 394; MACGREGOR V.
WESTINGHOUSE CO., 329 U.S. 402.  IN A SUIT TO VINDICATE THE PUBLIC
INTEREST BY ENJOINING VIOLATIONS OF THE SHERMAN ACT, THE UNITED STATES
SHOULD HAVE THE SAME OPPORTUNITY TO SHOW THAT THE ASSERTED SHIELD OF
PATENTABILITY DOES NOT EXIST.  OF COURSE, THIS APPEAL MUST BE
CONSIDERED ON A RECORD THAT ASSUMES THE VALIDITY OF ALL THE PATENTS
INVOLVED.  *GIII. 

THE TRIAL COURT RULED THAT, ON MOTION TO DISMISS PURSUANT TO RULE
41(B), THE COURT SHOULD WEIGH THE EVIDENCE AND GRANT THE MOTION IF THE
GOVERNMENT FAILED TO ESTABLISH ITS CASE BY A PREPONDERANCE OF THE
EVIDENCE, AND THE COURT FURTHER RULED THAT THE GOVERNMENT HAD THE
BURDEN OF PROVING BOTH THE CHARGE OF CONSPIRACY AND THE CHARGE THAT THE
LICENSING AGREEMENTS WERE NOT WITHIN THE PROTECTION OF THE PATENT
GRANT.  FN6  WE DO NOT STOP TO CONSIDER THOSE RULINGS.  THEY ARE NOT OF
IMPORTANCE IN THIS CASE AS WE THINK THE PREPONDERANCE OF EVIDENCE AT
THE CONCLUSION OF THE GOVERNMENT'S CASE INDICATED A VIOLATION OF THE
SHERMAN ACT. 

WE ARE UNABLE TO ACCEPT, HOWEVER, THE RULING OF THE COURT THAT
DECLARATIONS OF EACH DEFENDANT WERE ADMISSIBLE ONLY AGAINST THE
DEFENDANT MAKING THE DECLARATION.  FN7  A CONSIDERATION OF THAT POINT
REALLY INVOLVES THE HEART OF THE CASE SINCE THE TREATMENT OF THE
DECLARATIONS MAY VITALLY AFFECT THE OUTCOME.  SOME MAY HAVE DOUBTS AS
TO WHETHER THE AGREEMENTS AND BULLETINS ALONE ARE SUFFICIENT TO
ESTABLISH A CONSPIRACY BUT THE ADMISSION OF THE SEPARATE DECLARATIONS
AGAINST ALL GREATLY STRENGTHENS THE GOVERNMENT'S POSITION.  WE THINK
THAT THE INDUSTRY-WIDE LICENSE AGREEMENTS, ENTERED INTO WITH KNOWLEDGE
ON THE PART OF LICENSOR AND LICENSEES OF THE ADHERENCE OF OTHERS, WITH
THE CONTROL OVER PRICES AND METHODS OF DISTRIBUTION THROUGH THE
AGREEMENTS AND THE BULLETINS, WERE SUFFICIENT TO ESTABLISH A PRIMA
FACIE CASE OF CONSPIRACY.  EACH LICENSEE, AS IS SHOWN BY THE
UNCONTRADICTED REFERENCES TO THE MEETINGS AND DISCUSSION THAT WERE
PRELIMINARY TO THE EXECUTION OF THE LICENSES, COULD NOT HAVE FAILED TO
BE AWARE OF THE INTENTION OF UNITED STATES GYPSUM AND THE OTHER
LICENSEES TO MAKE THE ARRANGEMENTS FOR LICENSES INDUSTRY-WIDE.  THE
LICENSE AGREEMENTS THEMSELVES, ON THEIR FACE, SHOWED THIS PURPOSE.  THE
LICENSOR WAS TO FIX MINIMUM PRICES BINDING BOTH ON ITSELF AND ITS
LICENSEES; THE ROYALTY WAS TO BE MEASURED BY A PERCENTAGE OF THE VALUE
OF ALL GYPSUM PRODUCTS, PATENTED OR UNPATENTED; THE LICENSE COULD NOT
BE TRANSFERRED WITHOUT THE LICENSOR'S CONSENT; THE LICENSEE OPENED ITS
BOOKS OF ACCOUNTS TO THE LICENSOR; THE LICENSEE WAS PROTECTED AGAINST
COMPETITION WITH MORE FAVORABLE LICENSES AND THERE WAS A CANCELLATION
CLAUSE FOR FAILURE TO LIVE UP TO THE ARRANGEMENTS.  SEE THE APPENDIX,
POST, P. 404.  FURTHERMORE, THE BULLETINS GAVE DIRECTIONS TO THE
INDUSTRY AS TO ITS PRICES AND METHODS OF OPERATION IN UNMISTAKABLE
TERMS.  THE DISTRICT COURT DID NOT ACCEPT THE FOREGOING FACTS AS
DEFINITE EVIDENCE OF A CONSPIRACY.  TO US, THESE FACTS ARE PROOF OF A
CONSPIRACY.  CERTAINLY THEY ARE OVERWHELMING EVIDENCE OF A PLAN OF THE
LICENSOR AND LICENSEES TO FIX PRICES AND REGULATE OPERATIONS IN THE
GYPSUM BOARD INDUSTRY. 

IF THE DISTRICT COURT HAD THOUGHT THAT A PLAN SUCH AS IS EVIDENCED BY
THE LICENSE AGREEMENTS AND THE BULLETINS WAS ILLEGAL UNDER THE SHERMAN
ACT, IT MIGHT HAVE HAD A DIFFERENT CONCLUSION ON THE QUESTION OF THE
ADMISSIBILITY OF THE DECLARATIONS OF SOME APPELLEES AGAINST ALL.  ITS
POSITION STEMMED LOGICALLY FROM ITS UNDERSTANDING OF UNITED STATES V.
GENERAL ELECTRIC CO., 272 U.S. 476.  FN8  THE OPINIONS IN UNITED STATES
V. LINE MATERIAL CO., DECIDED TODAY, ANTE, P. 287, WHATEVER MAY BE THE
DIFFERENT VIEWS EXPRESSED, MAKE CLEAR THAT THE DISTRICT COURT'S
INTERPRETATION OF GENERAL ELECTRIC DIFFERS FROM THAT OF THIS COURT. 
WITH ITS INTERPRETATION OF THE RULE OF GENERAL ELECTRIC, THE DISTRICT
COURT WAS NOT REQUIRED TO BALANCE THE PRIVILEGES OF UNITED STATES
GYPSUM AND ITS LICENSEES UNDER THE PATENT GRANTS WITH THE PROHIBITIONS
OF THE SHERMAN ACT AGAINST COMBINATIONS AND ATTEMPTS TO MONOPOLIZE. 
CONSPIRACIES TO CONTROL PRICES AND DISTRIBUTION, SUCH AS WE HAVE HERE,
WE BELIEVE TO BE BEYOND ANY PATENT PRIVILEGE.    UNDER ITS VIEW OF THE
GENERAL ELECTRIC CASE, THE DISTRICT COURT CONCLUDED THAT ONLY A LACK OF
GOOD FAITH BY DEFENDANTS IN THE EXECUTION OF WHAT THAT COURT CONSIDERED
LEGITIMATE EXPLOITATION OF THE PATENTS COULD JUSTIFY IN THIS CASE A
DETERMINATION ADVERSE TO THE DEFENDANTS.  FN9  THE TRIAL COURT HELD
THAT AN ASSOCIATION OF DEFENDANTS IN A COMMON PLAN TO ORGANIZE THE
GYPSUM INDUSTRY AND STABILIZE PRICES THROUGH A NETWORK OF PATENT
LICENSES WAS LEGALLY PERMISSIBLE, AND THAT IN ANY EVENT THE GOVERNMENT
FAILED TO PROVE THAT THE DEFENDANTS HAD ASSOCIATED THEMSELVES IN SUCH A
PLAN.  THE TRIAL COURT FURTHER FOUND THAT THE LICENSE AGREEMENTS WERE
ENTERED INTO IN GOOD FAITH, IN RELIANCE UPON UNITED STATES V. GENERAL
ELECTRIC, SUPRA, AND BEMENT V. NATIONAL HARROW CO., 186 U.S. 70, AND
WERE INTENDED TO BIND THE PARTIES TO THE PROMISES MADE; THAT THE
EXPLICIT TERMS IN THE LICENSES WERE WITHIN THE SCOPE OF THE PATENT
GRANT, AND THAT THE GOVERNMENT HAD FAILED TO PROVE ANY AGREEMENT AMONG
THE DEFENDANTS TO TAKE ACTIONS WHICH WERE OUTSIDE THE SCOPE OF THE
PATENT GRANT.  SPECIFICALLY, THE TRIAL COURT FOUND THAT THERE WAS NO
AGREEMENT AMONG THE DEFENDANTS TO RAISE THE PRICE OF BOARD TO ARBITRARY
AND NON-COMPETITIVE LEVELS, TO STANDARDIZE THE PRODUCTION OF BOARD BY
PRICING NO. 2 BOARD AND SECONDS OUT OF THE MARKET, TO ELIMINATE THE
PRODUCTION OF OPEN-EDGE BOARD, TO ELIMINATE JOBBERS, TO CONTROL THE
RESALE PRICE OF BOARD SOLD TO MANUFACTURING DISTRIBUTORS, OR TO
STABILIZE THE PRICE OF UNPATENTED GYPSUM PRODUCTS.  THE COURT FURTHER
HELD THAT AS TO ALL THOSE CHARGES EXCEPT THE LAST TWO THE DEFENDANTS
WOULD HAVE BEEN ACTING WITHIN THE SCOPE OF THE PATENT GRANT EVEN IF
THEY HAD AGREED TO DO THE THINGS CHARGED.  WE CONCLUDE THAT REGARDLESS
OF MOTIVE, THE SHERMAN ACT BARS PATENT EXPLOITATION OF THE KIND THAT
WAS HERE ATTEMPTED.  THE LICENSE AGREEMENTS AND THE BULLETINS ESTABLISH
THE CONSPIRACY OF THE LICENSOR AND EACH LICENSEE TO VIOLATE THE SHERMAN
ACT.  WITH THE CONSPIRACY THUS FULLY ESTABLISHED, THE DECLARATIONS AND
ACTS OF THE VARIOUS MEMBERS, EVEN THOUGH MADE OR DONE PRIOR TO THE
ADHERENCE OF SOME TO THE CONSPIRACY, BECOME ADMISSIBLE AGAINST ALL AS
DECLARATIONS OR ACTS OF CO-CONSPIRATORS IN AID OF THE CONSPIRACY.  FN10
WE THINK THAT ALL OF THE DECLARATIONS AND ACTS WHICH WE HAVE SET FORTH
IN THIS OPINION ARE IN AID OF THE ULTIMATE CONSPIRACY.  WE DO NOT
ATTEMPT TO FIX A DATE WHEN THE CONSPIRACY WAS FIRST FORMED.  AT LEAST,
THE DECLARATIONS WHICH WE HAVE QUOTED WERE MADE WITH THE PURPOSE OF
ADVANCING A PLAN WHICH ULTIMATELY EVENTUATED IN THE LICENSES OF 1929. 

                            IV. 

WE TURN NOW TO A DIFFERENT PHASE OF THE CASE - THE CORRECTNESS OF THE
FINDINGS.  THE TRIAL COURT MADE FINDINGS OF FACT WHICH IF ACCURATE
WOULD BAR A REVERSAL OF ITS ORDER.  IN FINDING 118 THE TRIAL COURT
FOUND THAT THE EVIDENCE "FAILS TO ESTABLISH THAT DEFENDANTS ASSOCIATED
THEMSELVES IN A PLAN TO BLANKET THE INDUSTRY UNDER PATENT LICENSES AND
STABILIZE PRICES."  THE OPINION INDICATES THAT IN MAKING THIS FINDING
THE TRIAL COURT ASSUMED ARGUENDO THAT DECLARATIONS OF ONE DEFENDANT
WERE ADMISSIBLE AGAINST ALL.  67 F.SUPP.  AT 500.  IN EXAMINING THE
FINDING WE FOLLOW INTERSTATE CIRCUIT V. UNITED STATES, 306 U.S. 208,
AND UNITED STATES V. MASONITE CORP., 316 U.S. 265, AS TO THE QUANTUM OF
PROOF REQUIRED FOR THE GOVERNMENT TO ESTABLISH ITS CLAIM THAT THE
DEFENDANTS CONSPIRED TO ACHIEVE CERTAIN ENDS.  IN THOSE CASES, AS HERE,
SEPARATE IDENTICAL AGREEMENTS WERE EXECUTED BETWEEN ONE PARTY AND A
NUMBER OF OTHER PARTIES.  THIS COURT, IN INTERSTATE CIRCUIT, CONCLUDED
THAT PROOF OF AN EXPRESS UNDERSTANDING THAT EACH PARTY WOULD SIGN THE
AGREEMENTS WAS NOT A "PREREQUISITE TO AN UNLAWFUL CONSPIRACY."  WE HELD
THAT IT WAS SUFFICIENT IF ALL THE DEFENDANTS HAD ENGAGED IN A CONCERT
OF ACTION WITHIN THE MEANING OF THE SHERMAN ACT TO ENTER INTO THE
AGREEMENTS.  IN MASONITE THE TRIAL COURT FOUND THAT THE DEFENDANTS HAD
NOT ACTED IN CONCERT AND THAT FINDING WAS REVERSED BY THIS COURT.  ONE
OF THE THINGS THOSE TWO CASES ESTABLISH IS THE PRINCIPLE THAT WHEN A
GROUP OF COMPETITORS ENTERS INTO A SERIES OF SEPARATE BUT SIMILAR
AGREEMENTS WITH COMPETITORS OR OTHERS, A STRONG INFERENCE ARISES THAT
SUCH AGREEMENTS ARE THE RESULT OF CONCERTED ACTION.  THAT INFERENCE IS
STRENGTHENED WHEN CONTEMPORANEOUS DECLARATIONS INDICATE THAT SUPPOSEDLY
SEPARATE ACTIONS ARE PART OF A COMMON PLAN. 

IN SO FAR AS FINDING 118 AND THE SUBSIDIARY FINDINGS WERE BASED BY
THE DISTRICT COURT ON ITS BELIEF THAT THE GENERAL ELECTRIC RULE
JUSTIFIED THE ARRANGEMENTS OR BECAUSE OF A MISAPPLICATION OF MASONITE
OR INTERSTATE CIRCUIT, ERRORS OF LAW OCCURRED.  THESE WE CAN, OF
COURSE, CORRECT.  IN SO FAR AS THIS FINDING AND OTHERS TO WHICH WE
SHALL REFER ARE INFERENCES DRAWN FROM DOCUMENTS OR UNDISPUTED FACTS,
HERETOFORE DESCRIBED OR SET OUT, RULE 52(A) OF THE RULES OF CIVIL
PROCEDURE IS APPLICABLE.  THAT RULE PRESCRIBES THAT FINDINGS OF FACT IN
ACTIONS TRIED WITHOUT A JURY "SHALL NOT BE SET ASIDE UNLESS CLEARLY
ERRONEOUS, AND DUE REGARD SHALL BE GIVEN TO THE OPPORTUNITY OF THE
TRIAL COURT TO JUDGE OF THE CREDIBILITY OF THE WITNESSES."  IT WAS
INTENDED, IN ALL ACTIONS TRIED UPON THE FACTS WITHOUT A JURY, TO MAKE
APPLICABLE THE THEN PREVAILING EQUITY PRACTICE.  FN11 SINCE JUDICIAL
REVIEW OF FINDINGS OF TRIAL COURTS DOES NOT HAVE THE STATUTORY OR
CONSTITUTIONAL LIMITATIONS ON JUDICIAL REVIEW OF FINDINGS BY
ADMINISTRATIVE AGENCIES  FN12  OR BY A JURY,  FN13 THIS COURT MAY
REVERSE FINDINGS OF FACT BY A TRIAL COURT WHERE "CLEARLY ERRONEOUS." 
THE PRACTICE IN EQUITY PRIOR TO THE PRESENT RULES OF CIVIL PROCEDURE
WAS THAT THE FINDINGS OF THE TRIAL COURT, WHEN DEPENDENT UPON ORAL
TESTIMONY WHERE THE CANDOR AND CREDIBILITY OF THE WITNESSES WOULD BEST
BE JUDGED, HAD GREAT WEIGHT WITH THE APPELLATE COURT.  THE FINDINGS
WERE NEVER CONCLUSIVE, HOWEVER.  FN14  A FINDING IS "CLEARLY ERRONEOUS"
WHEN ALTHOUGH THERE IS EVIDENCE TO SUPPORT IT, THE REVIEWING COURT ON
THE ENTIRE EVIDENCE IS LEFT WITH THE DEFINITE AND FIRM CONVICTION THAT
A MISTAKE HAS BEEN COMMITTED. 

THE GOVERNMENT RELIED VERY LARGELY ON DOCUMENTARY EXHIBITS, AND
CALLED AS WITNESSES MANY OF THE AUTHORS OF THE DOCUMENTS.  BOTH ON
DIRECT AND CROSS-EXAMINATION COUNSEL WERE PERMITTED TO PHRASE THEIR
QUESTIONS IN EXTREMELY LEADING FORM, SO THAT THE IMPORT OF THE
WITNESSES' TESTIMONY WAS CONFLICTING.  ON CROSS-EXAMINATION MOST OF THE
WITNESSES DENIED THAT THEY HAD ACTED IN CONCERT IN SECURING PATENT
LICENSES OR THAT THEY HAD AGREED TO DO THE THINGS WHICH IN FACT WERE
DONE.  WHERE SUCH TESTIMONY IS IN CONFLICT WITH CONTEMPORANEOUS
DOCUMENTS WE CAN GIVE IT LITTLE WEIGHT, PARTICULARLY WHEN THE CRUCIAL
ISSUES INVOLVE MIXED QUESTIONS OF LAW AND FACT.  DESPITE THE
OPPORTUNITY OF THE TRIAL COURT TO APPRAISE THE CREDIBILITY OF THE
WITNESSES, WE CANNOT UNDER THE CIRCUMSTANCES OF THIS CASE RULE
OTHERWISE THAN THAT FINDING 118 IS CLEARLY ERRONEOUS. 

IN FINDINGS 54, 56, 62, 63, 64, 65, 66, 89 AND 90, THE TRIAL COURT
MADE FINDINGS ADVERSE TO THE GOVERNMENT'S CLAIM THAT THE DEFENDANTS
CONSPIRED TO ELIMINATE THE PRODUCTION OF OPEN-EDGE BOARD.  FN15  THE
TENOR OF THOSE FINDINGS IS THAT THERE WAS NO AGREEMENT AMONG THE
LICENSEES TO DISCONTINUE THE PRODUCTION OF OPEN-EDGE BOARD, ALTHOUGH
THE TRIAL COURT CONCEDED THAT IT MIGHT BE "INFERRED" THAT EACH LICENSEE
DID NOT EXPECT TO CONTINUE THE MANUFACTURE OF OPEN-EDGE BOARD.  THE
PROVISION IN THE LICENSE CONTRACTS THAT ROYALTIES SHOULD BE PAID ON THE
PRODUCTION OF UNPATENTED BOARD IS STRONGLY INDICATIVE OF AN AGREEMENT
NOT TO MANUFACTURE UNPATENTED BOARD, AND THE TESTIMONY OF THE WITNESSES
IS AMPLE TO SHOW THAT THERE WAS AN UNDERSTANDING, IF NOT A FORMAL
AGREEMENT, THAT ONLY PATENTED BOARD WOULD BE SOLD.  SUCH AN ARRANGEMENT
IN PURPOSE AND EFFECT INCREASED THE AREA OF THE PATENT MONOPOLY AND IS
INVALID. 

IN FINDINGS 75-79, 99-102,  FN16  THE TRIAL COURT CONSIDERED THE
PROBLEM OF JOBBERS.  THOSE FINDINGS STATE, IN EFFECT, THAT THE LICENSE
AGREEMENTS WERE NOT EXECUTED WITH THE INTENT OF ELIMINATING JOBBERS,
THAT THE DISCONTINUANCE OF THE JOBBERS' DISCOUNT WAS AN EXERCISE BY
UNITED STATES GYPSUM OF ITS RIGHT TO ESTABLISH A PRICE FOR A PATENTED
PRODUCT, AND THAT COMPLAINTS BY LICENSEES THAT OTHER LICENSEES HAD SOLD
TO JOBBERS AT A DISCOUNT DID NOT ESTABLISH CONCERTED ACTION TO
ELIMINATE JOBBERS.  WE ARE UNABLE TO AGREE TO THESE HOLDINGS.  SINCE
THE DEFENDANTS ENTERED INTO A COMMON SCHEME TO STABILIZE THE INDUSTRY,
AND SINCE THE ELIMINATION OF JOBBERS WAS UNDERTAKEN BY UNITED STATES
GYPSUM IN FURTHERANCE OF THAT PURPOSE, A FINDING OF SPECIFIC INTENT AS
TO EACH LICENSEE IS NOT NECESSARY.  NOR DO WE AGREE THAT THE
ELIMINATION OF JOBBERS FALLS WITHIN THE PROTECTION OF THE PATENT GRANT
WHEN THE PURPOSE, AS HERE, IS TO PREVENT COMPETITION BY UNCONTROLLED
RESALE PRICES.  THE INFERENCE WE DRAW FROM THE UNCONTRADICTED EVIDENCE
IS THAT THE DEFENDANTS ACTED IN CONCERT TO ELIMINATE AN IMPORTANT CLASS
OF JOBBERS. 

IN FINDINGS 73, 94-97,  FN17  THE TRIAL COURT DEALT WITH THE
GOVERNMENT'S CHARGE THAT THE DEFENDANTS HAD STABILIZED THE PRICE OF
UNPATENTED GYPSUM PRODUCTS.  THOSE FINDINGS HOLD THAT THERE WAS NO
UNDERSTANDING OR AGREEMENT THAT PRICES WOULD BE RAISED OR FIXED UPON
PLASTER OR ANY UNPATENTED PRODUCT, THAT THE BULLETIN PROVISION
PROHIBITING THE REDUCTION OF PRICE ON UNPATENTED PRODUCTS WAS DESIGNED
TO PROTECT THE PRICE OF PATENTED BOARD, AND WAS NOT USED TO STABILIZE
THE PRICE OF UNPATENTED MATERIALS.  WE REJECT ALL THESE FINDINGS AS
CLEARLY ERRONEOUS.  THE BULLETIN PROVISION AND THE COMPLAINTS BY
LICENSEES ADDRESSED TO BOARD SURVEY CONVINCE US THAT THE DEFENDANTS
ATTEMPTED TO STABILIZE PLASTER PRICES, AND THE FACT THAT PLASTER PRICES
WERE STABILIZED ONLY WHEN PLASTER WAS SOLD IN CONJUNCTION WITH BOARD
APPEARS TO US TO BE IMMATERIAL. 

THE TRIAL COURT MADE MANY OTHER FINDINGS TO WHICH THE GOVERNMENT
OBJECTED AND YET TO DETERMINE HERE WHETHER EACH IS ERRONEOUS IS
UNNECESSARY.  FN18 PERHAPS LOOKED AT IN ISOLATION SOME OF THE
GOVERNMENT'S CHARGES ARE NOT PROVEN WITH THAT FULLNESS THAT WOULD
JUSTIFY OUR REVERSAL OF THE FINDING OF THE DISTRICT COURT ON THE
POINT.  IT MAY BE THAT IN THE LIGHT OF THIS OPINION THE DISTRICT COURT
WILL CONCLUDE THAT MANY SUCH FINDINGS ARE NO LONGER SIGNIFICANT IN
REACHING ITS DECISION.  AS TO OTHERS A DIFFERENT RESULT WILL BE
REQUIRED.  ENOUGH HAS BEEN SAID AS TO THE FINDINGS AND THE EVIDENCE, WE
THINK, TO ENABLE THE DISTRICT COURT TO PASS UPON THE FACTS THAT MAY
COME BEFORE IT ON FURTHER PROCEEDINGS IN ACCORD WITH OUR PRESENT
RULING. 

                                  V. 

THE FOREGOING DISCUSSION FORESHADOWS OUR CONCLUSION.  WHAT WE HAVE
SAID ABOVE UNDER III ON THE INVALIDITY OF THE ARRANGEMENTS AS TESTED BY
THE SHERMAN ACT IN DISCUSSING THE ADMISSIBILITY OF THE DECLARATIONS AND
ACTS OF SEPARATE DEFENDANTS AGAINST ALL OTHERS IS APPLICABLE HERE. 
THESE LICENSES AND BULLETINS SHOW PLAINLY A CONSPIRACY TO VIOLATE THE
SHERMAN ACT.  PRICE FIXING OF THIS TYPE OFFENDS.  IT IS WELL SETTLED
THAT PRICE FIXING, WITHOUT AUTHORIZING STATUTES, IS ILLEGAL, PER SE.
SEE NOTE 21, UNITED STATES V. LINE MATERIAL CO., ANTE, P. 287.  PATENTS
GRANT NO PRIVILEGE TO THEIR OWNERS OF ORGANIZING THE USE OF THOSE
PATENTS TO MONOPOLIZE AN INDUSTRY THROUGH PRICE CONTROL, THROUGH
ROYALTIES FOR THE PATENTS DRAWN FROM PATENT-FREE INDUSTRY PRODUCTS AND
THROUGH REGULATION OF DISTRIBUTION.  HERE PATENTS HAVE BEEN PUT TO SUCH
USES AS TO COLLIDE WITH THE SHERMAN ACT'S PROTECTION OF THE PUBLIC FROM
EVIL CONSEQUENCES.  UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319,
327; HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 406; STANDARD
OIL CO. V. UNITED STATES, 283 U.S. 163, 170-74; STANDARD SANITARY MFG.
CO. V. UNITED STATES, 226 U.S. 20.  THE DEFENDANTS DID UNDERTAKE TO
CONTROL PRICES AND DISTRIBUTION IN GYPSUM BOARD.  THEY DID UTILIZE AN
AGENCY, BOARD SURVEY, INC., TO MAKE THIS CONTROL EFFECTIVE.  FASHION
ORIGINATORS' GUILD V. FEDERAL TRADE COMMISSION, 312 U.S. 457, 465. 
SUCH FACTS, TOGETHER WITH THE OTHER INDICIA OF INTENT TO MONOPOLIZE THE
GYPSUM BOARD INDUSTRY, HEREINBEFORE DETAILED AS TO THE AGREEMENTS,
BULLETINS AND DECLARATIONS, CONVINCE US THAT THE DEFENDANTS VIOLATED
THE SHERMAN ACT. 

THE GENERAL ELECTRIC CASE AFFORDS NO CLOAK FOR THE COURSE OF CONDUCT
REVEALED IN THE VOLUMINOUS RECORD IN THIS CASE.  THAT CASE GIVES NO
SUPPORT FOR A PATENTEE, ACTING IN CONCERT WITH ALL MEMBERS OF AN
INDUSTRY, TO ISSUE SUBSTANTIALLY IDENTICAL LICENSES TO ALL MEMBERS OF
THE INDUSTRY UNDER THE TERMS OF WHICH THE INDUSTRY IS COMPLETELY
REGIMENTED, THE PRODUCTION OF COMPETITIVE UNPATENTED PRODUCTS
SUPPRESSED, A CLASS OF DISTRIBUTORS SQUEEZED OUT, AND PRICES ON
UNPATENTED PRODUCTS STABILIZED.  WE APPLY THE "RULE OF REASON" OF
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, TO EFFORTS TO MONOPOLIZE
THROUGH PATENTS AS WELL AS IN NON-PATENT FIELDS.  EVEN IN THE ABSENCE
OF THE SPECIFIC ABUSES IN THIS CASE, WHICH FALL WITHIN THE TRADITIONAL
PROHIBITIONS OF THE SHERMAN ACT, IT WOULD BE SUFFICIENT TO SHOW THAT
THE DEFENDANTS, CONSTITUTING ALL FORMER COMPETITORS IN AN ENTIRE
INDUSTRY, HAD ACTED IN CONCERT TO RESTRAIN COMMERCE IN AN ENTIRE
INDUSTRY UNDER PATENT LICENSES IN ORDER TO ORGANIZE THE INDUSTRY AND
STABILIZE PRICES.  THAT CONCLUSION FOLLOWS DESPITE THE ASSUMED LEGALITY
OF EACH SEPARATE PATENT LICENSE, FOR IT IS FAMILIAR DOCTRINE THAT
LAWFUL ACTS MAY BECOME UNLAWFUL WHEN TAKEN IN CONCERT.  FN19  SUCH
CONCERTED ACTION IS AN EFFECTIVE DETERRENT TO COMPETITION; AS WE SAID
IN MASONITE, P. 281:    "THE POWER OF MASONITE TO FIX THE PRICE OF THE
PRODUCT WHICH IT MANUFACTURES, AND WHICH THE ENTIRE GROUP SELLS AND
WITH RESPECT TO WHICH ALL HAVE BEEN AND ARE NOW ACTUAL OR POTENTIAL
COMPETITORS, IS A POWERFUL INDUCEMENT TO ABANDON COMPETITION.  ...
ACTIVE AND VIGOROUS COMPETITION THEN TENDS TO BE IMPAIRED, NOT FROM ANY
PREFERENCE OF THE PUBLIC FOR THE PATENTED PRODUCT, BUT FROM THE
PREFERENCE OF THE COMPETITORS FOR A MUTUAL ARRANGEMENT FOR PRICE-FIXING
WHICH PROMISES MORE PROFIT IF THE PARTIES ABANDON RATHER THAN MAINTAIN
COMPETITION.  ...  " 

THE REWARDS WHICH FLOW TO THE PATENTEE AND HIS LICENSEES FROM THE
SUPPRESSION OF COMPETITION THROUGH THE REGULATION OF AN INDUSTRY ARE
NOT REASONABLY AND NORMALLY ADAPTED TO SECURE PECUNIARY REWARD FOR THE
PATENTEE'S MONOPOLY. 

BY THE RECORD NOW PRESENTED, VIOLATION OF THE SHERMAN ACT IS CLEAR. 
AS THE ORDER OF DISMISSAL CAME AT THE END OF THE GOVERNMENT'S
PRESENTATION ON APPELLEE'S MOTION TO DISMISS UNDER RULE 41(B) FN20  OF
THE FEDERAL RULES OF CIVIL PROCEDURE, THE ORDER IS REVERSED AND THE
CASE REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION*
. 

*(FOR APPENDIX TO OPINION OF THE COURT, SEE P. 404.) 

FN2 (CHART OMITTED) 

FN2  BESTWALL MFG. CO. V. UNITED STATES GYPSUM CO., 270 F. 542. 

FN3  "IN COMPUTING THE DELIVERED MINIMUM PRICE HEREUNDER, RAIL
FREIGHT, WHEREVER MENTIONED IN THIS BULLETIN, SHALL MEAN RAIL FREIGHT
IN ACCORDANCE WITH RAIL RATES PUBLISHED IN REGULAR FREIGHT TARIFFS,
USING THE WEIGHTS SHOWN ABOVE, AND SHALL INCLUDE ALL STOPOVER,
SWITCHING, CARTAGE AND OTHER EXTRA DELIVERY CHARGES APPLICABLE TO THE
SHIPMENT.  ... 

"REBATES, ALLOWANCES, ETC.: 

"ANY SALE OF PATENTED PRODUCTS, THOUGH OSTENSIBLY MADE AT OR ABOVE
THE MINIMUM PRICE ESTABLISHED BY LICENSOR, WILL NEVERTHELESS BE
CONSIDERED A VIOLATION OF THE PROVISIONS OF THE LICENSE IF LICENSEE
DIRECTLY OR INDIRECTLY REDUCES THE ACTUAL PRICE CHARGED BY LICENSEE
BELOW SUCH MINIMUM PRICE BY GRANTING THE CUSTOMER REBATES, UNEARNED OR
UNWARRANTED REFUNDS, CREDITS OR DISCOUNTS, BY REDUCING THE PRICE OF
OTHER PRODUCTS, BY HIRING CUSTOMERS' TRUCKS, BY GRANTING ALLOWANCES FOR
ADVERTISING OR OTHER PURPOSES, BY SPLITTING OF SALESMEN'S COMPENSATION
OR COMMISSIONS WITH CUSTOMERS, BY OVERSHIPMENT OF PATENTED PRODUCTS, BY
INCLUDING BOARD UNDER THE GUISE OF DUNNAGE, OR BY MAKING ANY OTHER
PAYMENT OR ALLOWANCE IN THE FORM OF MONEY OR OTHERWISE WHICH HAS FOR
ITS PURPOSE AND EFFECT REDUCING THE PRICE CHARGED BY LICENSEE BELOW
SUCH MINIMUM PRICE." 

FN4  53 F.SUPP.  889. 

FN5  COMPARE BECHER V. CONTOURE LABORATORIES, 279 U.S. 388. 

FN6  67 F.SUPP.  397, 417, 441. 

FN7  SEE DISCUSSION OF "THE RULE CONCERNING ADMISSIBILITY OF
DECLARATIONS OF ALLEGED CO-CONSPIRATORS," 67 F.SUPP.  AT 451, AND
"SIGNIFICANCE OF THE EVIDENCE, ASSUMING THE DECLARATIONS CONNECTED,"
ID., AT 500. 

FN8  TO THE DISTRICT COURT THE GENERAL ELECTRIC CASE ESTABLISHES
"THAT A PATENT LICENSE AGREEMENT GRANTING THE RIGHT TO MAKE, USE AND
VEND A PATENTED PRODUCT, UNDER TERMS AND CONDITIONS, INCLUDING PRICES,
FIXED BY THE LICENSOR, IS LAWFUL.  SUCH A LICENSE AGREEMENT ORDINARILY,
AND, WHEN THE PRICES ARE (AS IN THE GENERAL ELECTRIC CASE) A PART OF
THE LICENSE CONTRACT, NECESSARILY, INVOLVES NEGOTIATION AND DISCUSSION
BETWEEN THE LICENSOR AND THE LICENSEE AND AGREEMENT UPON THE TERMS AND
CONDITIONS, A PURPOSE TO EXECUTE AND CARRY OUT THE AGREEMENT, COMBINED
ACTION IN SIGNING THE AGREEMENT AND IN PERFORMING THE OBLIGATIONS
THEREOF, WITH KNOWLEDGE THAT IT WILL RESULT IN A STABILIZED AND
PRESUMABLY PROFITABLE PRICE FOR THE PATENTED PRODUCT AS BETWEEN THE
PARTIES AND IN THE INDUSTRY (SINCE THE PARTIES ARE, BY VIRTUE OF THE
PATENT, THE ONLY ONES HAVING A RIGHT TO MAKE, USE AND SELL THE SUPERIOR
PATENTED PRODUCT) AND WITH KNOWLEDGE THAT IT WILL RESULT IN A MONOPOLY
(I.E., A DIVIDED PATENT MONOPOLY), IN PROBABLE DISCONTINUANCE OF
MANUFACTURE AND SALE BY THE LICENSEE OF INFERIOR MATERIALS (THE
LICENSEE'S INCENTIVE TO TAKE A LICENSE IS THE RIGHT TO MAKE THE
SUPERIOR PRODUCT), AND IN CONTROL OF DISTRIBUTION.  WHAT A LAWFUL
PATENT LICENSE AGREEMENT NORMALLY INVOLVES CANNOT BE UNLAWFUL. 
ADDITIONALLY, SINCE A PATENT OWNER MAY LAWFULLY DIVIDE HIS PATENT
MONOPOLY WITH A PLURALITY OF LICENSEES, THERE WILL IN THE USUAL COURSE
BE WITH EACH OF SUCH LICENSEES THE SAME NEGOTIATION AND DISCUSSION,
AGREEMENT UPON TERMS, PURPOSE TO EXECUTE AND CARRY OUT A LICENSE
CONTRACT AND TO ACCOMPLISH ITS NORMAL RESULTS, AND COMBINED IN SO
DOING, AS IN THE CASE OF A SINGLE LICENSEE.  AND EACH LICENSEE WILL BE
INFORMED OF AND DISCUSS WITH THE LICENSOR THE TERMS AND CONDITIONS OF
THE PROPOSED LICENSES; OTHERWISE NO MORE THAN A SINGLE LICENSE COULD BE
EXECUTED.  A PATENT OWNER WOULD NOT BE ABLE TO LICENSE COMPETING
MANUFACTURERS UPON DIFFERENT PRICE TERMS; NO ONE SUCH WOULD BE WILLING
TO SUFFER COMPETITIVE DISADVANTAGES; NO ONE SUCH WOULD BE WILLING TO
SIGN IN THE DARK AS TO THE TERMS TO BE EXTENDED TO THE OTHERS;
ORDINARILY, MOREOVER, THERE WILL BE DISCUSSION AT LARGE, I.E., WITHIN
THE TRADE, OF THE ADVANTAGES AND DISADVANTAGES OF THE LICENSES PROPOSED
BY THE PATENT OWNER.  EACH OF A PLURALITY OF LICENSEES WILL, MOREOVER,
HAVE THE SAME PURPOSE TO TAKE A LICENSE AND TO SECURE ITS RESULTING
ADVANTAGES.  THE LICENSOR AND EACH LICENSEE OF SUCH A PLURALITY
CONSTITUTE A 'COMBINATION' TO EFFECTUATE THE PURPOSES OF THEIR
LICENSE.  SINCE A PLURALITY OF LICENSES IS LAWFUL, ALL OF THIS MUST BE
LAWFUL.  FURTHER, IF IN PRACTICAL EFFECT THE LICENSOR AND THE PLURALITY
OF LICENSEES ARE A 'COMBINATION' TO THE SAME END, SUCH A 'COMBINATION'
IS NOT STIGMATIZED BY THE LAW - PROVIDED IN PURPOSE AND EFFECT IT DOES
NOT SECURE TO THE PATENT OWNER MORE THAN THE NORMAL REWARD OF A PATENT
MONOPOLY, NOR TO ANY OF THE LICENSEES WITH WHOM THAT MONOPOLY IS
DIVIDED MORE THAN THE ADVANTAGES WHICH NATURALLY RESULT TO A LICENSEE,
AS WELL AS TO A LICENSOR, FROM PATENT LICENSING.  ALL OF THIS
NECESSARILY FOLLOWS FROM THE GENERAL ELECTRIC CASE."  67 F.SUPP.  AT
439-40. 

REFERRING TO THE EVIDENCE ABOVE, THE DISTRICT COURT SAID, ID., P.
457:  "THESE ITEMS DO NOT PROVE THE CONSPIRACY CHARGED BECAUSE THEY DO
NOT SHOW THAT THE LICENSES WERE NOT BONA FIDE OR THAT THEY WERE
EXECUTED TO ACCOMPLISH RESTRAINTS OUTSIDE THE PROPER LIMITS OF A PATENT
MONOPOLY." 

FN9  67 F.SUPP.  500-501: 

"BUT IN VIEW OF THE IMPORTANCE OF THIS CASE AND THE CONSEQUENT
PROBABILITY THAT IT WILL REACH A HIGHER TRIBUNAL, WE THINK IT DESIRABLE
ALSO TO STATE OUR VIEWS AS TO THE MEANING OF THE EVIDENCE WHEN THE
DECLARATIONS ARE CONSIDERED AS BINDING NOT MERELY UPON THE DECLARANT
BUT ALSO UPON ALL OF THE ALLEGED CO-CONSPIRATORS.  WE HAVE CONSIDERED
THE EVIDENCE IN THIS LIGHT, AND WE THINK THE GOVERNMENT STILL HAS NOT
PROVED THAT THE LICENSE AGREEMENTS WERE EXECUTED NOT AS BONA FIDE
LICENSE AGREEMENTS REASONABLY DESIGNED TO SECURE TO USG THE PECUNIARY
REWARDS OF ITS PATENT MONOPOLY BUT ONLY AS SHAM AGREEMENTS TO GIVE
COLOR OF LEGALITY TO THE ILLEGAL PURPOSES ALLEGED IN THE COMPLAINT, AND
HAS NOT PROVED THAT THE OPERATIONS OF THE DEFENDANTS WERE CARRIED
BEYOND THE PROPER LIMITS OF THE USG PATENT MONOPOLY, AND THEREFORE HAS
NOT PROVED THE COMBINATION AND CONSPIRACY CHARGED.  THE EVIDENCE
DISCUSSED IN TOPICS V AND VI NO MORE PROVES LACK OF BONA FIDES IN THE
EXECUTION OF THE LICENSE AGREEMENTS, OR OPERATIONS BEYOND THE LIMITS OF
THE PATENT MONOPOLY, WHEN THE DECLARATIONS ARE REGARDED AS BINDING UPON
ALL OF THE ALLEGED CO-CONSPIRATORS, THAN IT DOES WHEN SUCH DECLARATIONS
ARE CONSIDERED AS BINDING ONLY UPON THE DECLARANT.  THIS IS NECESSARILY
SO - IN THE VIEW WE TAKE OF THE SIGNIFICANCE OF THE DECLARATIONS. 
SINCE, AS DEMONSTRATED IN TOPICS V AND VI, THEY FAIL TO CONVICT THE
DECLARANTS THEMSELVES OF LACK OF BONA FIDES IN THE EXECUTION OF THE
LICENSES, OR OF OPERATIONS BEYOND THE PROPER LIMITS OF THE USG PATENT
MONOPOLY, THEY CANNOT CONVICT OTHERS THEREOF." 

FN10  VAN RIPER V. UNITED STATES, 13 F.2D 961, 967; LEFCO V. UNITED
STATES, 74 F.2D 66, 68; DEACON V. UNITED STATES, 124 F.2D 352, 358;
UNITED STATES V. COMPAGNA, 146 F.2D 524, 530. 

FN11  H.R. DOC. NO. 588, 75TH CONG., 3D SESS., NOTES TO THE RULES OF
CIVIL PROCEDURE; REPORT OF THE ADVISORY COMMITTEE, SUPREME COURT OF THE
UNITED STATES, ON RULES OF CIVIL PROCEDURE, APRIL, 1937, RULE 59 AND
NOTES; PRELIMINARY DRAFT, RULES OF CIVIL PROCEDURE FOR THE DISTRICT
COURT OF THE UNITED STATES, MAY 1936, RULE 68 AND NOTES. 

FN12  CORN PRODUCTS CO. V. FEDERAL TRADE COMM'N, 324 U.S. 726, 739;
LABOR BOARD V. GREYHOUND LINES, 303 U.S. 261, 268. 

FN13  LAWRENCE V. MCCALMONT, 2 HOW.  426, 453; RECONSTRUCTION FINANCE
CORP. V. BANKERS TRUST CO., 318 U.S. 163, 170. 

FN14  2 STREET, FEDERAL EQUITY PRACTICE (1909) SECS. 1510, 1514;
FURRER V. FERRIS, 145 U.S. 132; TILGHMAN V. PROCTOR, 125 U.S. 136, 149
50; DISTRICT OF COLUMBIA V. PACE, 320 U.S. 698, 701; VIRGINIAN R. CO.
V. UNITED STATES, 272 U.S. 658, 675. 

FN15  WE QUOTE FINDINGS 54 AND 89 AS TYPICAL: 

"54.  THE FACT THAT FOR THE PRIVILEGE OF USING THE PATENTS, ROYALTIES
ARE FIXED IN THE LICENSE AGREEMENTS AT AN AMOUNT EQUIVALENT TO A
DESIGNATED PERCENTAGE OF THE SELLING PRICE OF THE LICENSEES OF ALL
GYPSUM BOARD MANUFACTURED BY THEM, WHETHER OR NOT PATENTED, DOES NOT
ESTABLISH AN AGREEMENT TO MAKE ONLY THE PATENTED PRODUCT AND DOES NOT
ESTABLISH THAT THE LICENSE AGREEMENTS WERE EXECUTED IN BAD FAITH.  THE
PATENTS WERE NUMEROUS AND COVERED NOT ONLY THE PATENTED BOARD BUT
MACHINES AND PROCESSES IN THE MANUFACTURE OF BOARD, AND THE RIGHTS AND
PRIVILEGES GRANTED WERE OF GREAT VALUE TO THE MANUFACTURERS OF GYPSUM
BOARD.  THIS ROYALTY PROVISION IS IN EFFECT A PROVISION FOR A
PERCENTAGE OF GROSS SALES, AND AS SUCH IS BUT A CONVENIENT MEANS OF
MEASURING THE AMOUNT TO BE PAID FOR THE PRIVILEGE OF USING THE
PATENTS.  IT MIGHT WITH EQUAL PROPRIETY HAVE BEEN A LUMP SUM.  THIS
PROVISION IN THE LICENSE AGREEMENTS WAS NOT AN ATTEMPT TO IMPOSE A
ROYALTY UPON AN UNPATENTED PRODUCT, NOR WAS IT INTENDED TO DRIVE OPEN
EDGE BOARD OFF THE MARKET, NOR DID IT HAVE THAT EFFECT." 

"89.  THE DEFENDANTS DID NOT BY ANY OF THEIR OPERATIONS UNDER THE
LICENSE AGREEMENTS, NOR DID THEY BY ANY AGREEMENT OR UNDERSTANDING,
ACCOMPLISH ANY IMPROPER STANDARDIZATION OF GYPSUM BOARD OR ITS METHOD
OF PRODUCTION, AS CHARGED BY THE GOVERNMENT." 

FN16  WE QUOTE FINDINGS 75 AND 77 AS TYPICAL: 

"75.  THE LICENSE AGREEMENTS WERE NOT EXECUTED WITH AN INTENT TO
EFFECTUATE IMPROPER RESTRICTION UPON THE DISTRIBUTION OF GYPSUM BOARD,
PLASTER OR MISCELLANEOUS GYPSUM PRODUCTS, SPECIFICALLY, TO 'ELIMINATE'
JOBBERS THROUGH THE DISCONTINUANCE OF A SALES DISCOUNT." 

"77.  THERE WAS NO AGREEMENT OR UNDERSTANDING BETWEEN ANY OF THE
PARTIES TO THE LICENSE AGREEMENTS IN THE INSTANT CASE WHEREBY JOBBERS
WOULD BE ELIMINATED FROM THE GYPSUM BOARD DISTRIBUTIVE SYSTEM.  NOR WAS
THERE ANY UNDERSTANDING OR AGREEMENT THAT JOBBERS' DISCOUNTS WOULD BE
DISCONTINUED.  THE ISSUANCE OF THE BULLETIN OF AUGUST 8, 1930(EXHIBIT
430) MAKING THE PRICE TO JOBBERS THE SAME AS TO DEALERS WAS THE
EXERCISE OF THE RIGHT OF USG TO ESTABLISH A PRICE FOR THE PATENTED
PRODUCT." 

FN17  WE QUOTE FINDINGS 73 AND 95 AS TYPICAL: 

"73.  THERE WAS AT NO TIME ANY UNDERSTANDING OR AGREEMENT AMONG ANY
OF THE PARTIES TO THE RESPECTIVE LICENSE AGREEMENTS THAT THE PRICES
WOULD BE RAISED OR FIXED UPON PLASTER OR ANY UNPATENTED GYPSUM
PRODUCT.  NOR WERE THE LICENSE AGREEMENTS IN THE INSTANT CASE EXECUTED
WITH AN INTENT TO RAISE, MAINTAIN AND STABILIZE THE PRICES OF
UNPATENTED MATERIALS SUCH AS PLASTER AND MISCELLANEOUS GYPSUM
PRODUCTS.  THE PARTIES TO THE RESPECTIVE LICENSE AGREEMENTS KNEW THAT
THE LICENSOR'S RIGHT TO FIX MINIMUM PRICES WAS LIMITED TO THE PRICES ON
PATENTED BOARD MANUFACTURED AND SOLD BY THE RESPECTIVE LICENSEES." 

"95.  THE BULLETIN PROVISION THAT 'ANY SALE OF PATENTED PRODUCTS,
THOUGH OSTENSIBLY MADE AT OR ABOVE THE MINIMUM PRICE ESTABLISHED BY
LICENSOR, WILL NEVERTHELESS BE CONSIDERED A VIOLATION OF THE PROVISIONS
OF THE LICENSE IF LICENSEE DIRECTLY OR INDIRECTLY REDUCES THE ACTUAL
PRICE CHARGED BY LICENSEE BELOW SUCH MINIMUM PRICE  ... BY REDUCING THE
PRICE OF OTHER PRODUCTS  ...  ' IS BUT PART OF A LARGER PROVISION
CONCERNING REBATES AND ALLOWANCES MADE FOR THE PURPOSE AND WITH THE
EFFECT OF REDUCING THE LICENSEE'S PRICE ON PATENTED BOARD BELOW THE
MINIMUM PRICE THEREFOR - A PRICE PROTECTIVE PROVISION.  IT WAS NOT A
DEVICE TO RAISE, MAINTAIN OR STABILIZE THE PRICE OF PLASTER OR
MISCELLANEOUS GYPSUM PRODUCTS, AND IT WAS NOT APPLIED BY THE DEFENDANTS
TO THAT END.  NOR DID IT HAVE THAT EFFECT.  ON THE CONTRARY THE
PROVISION IN QUESTION WAS A PROPER PRICE PROTECTIVE MEASURE REASONABLY
DESIGNED TO SECURE TO USG THE PECUNIARY REWARD OF ITS PATENT MONOPOLY. 
IN OPERATION, IT WAS NOT USED TO RAISE, MAINTAIN OR STABILIZE THE PRICE
OF UNPATENTED MATERIALS." 

FN18  OBJECTION WAS MADE TO THOSE FINDINGS WHICH HELD THAT THE
DEFENDANTS HAD NOT CONSPIRED TO FIX RESALE PRICES OF BOARD SOLD TO
MANUFACTURING DISTRIBUTORS. 

FN19  BINDERUP V. PATHE EXCHANGE, 263 U.S. 291; EASTERN STATES LUMBER
DEALERS' ASSN. V. UNITED STATES, 234 U.S. 600; UNITED STATES V. READING
CO., 226 U.S. 324, 357; SWIFT & CO. V. UNITED STATES, 196 U.S. 375,
396. 

FN20  4 FED. RULES SERV. (PIKE & FISCHER) 931; GULBENKIAN V.
GULBENKIAN, 147 F.2D 173, 177.  WE KNOW OF NO REASON WHY THE STATEMENT
IN THE GULBENKIAN CASE THAT IT IS UNNECESSARY FOR THE APPELLANT TO
OFFER HIS EVIDENCE A SECOND TIME IS NOT HERE APPLICABLE.    MR. JUSTICE
JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IN PART II OF THE OPINION THE COURT CONFESSEDLY DEALS WITH AN ISSUE
THAT "NEED NOT BE DECIDED TO DISPOSE OF THIS CASE."  DELIBERATE DICTA,
I HAD SUPPOSED, SHOULD BE DELIBERATELY AVOIDED.  ESPECIALLY SHOULD WE
AVOID PASSING GRATUITOUSLY ON AN IMPORTANT ISSUE OF PUBLIC LAW WHERE
DUE CONSIDERATION OF IT HAS BEEN CROWDED OUT BY COMPLICATED AND
ELABORATE ISSUES THAT HAVE TO BE DECIDED.  ACCORDINGLY, I JOIN IN THE
COURT'S OPINION, EXCEPT PART II. 

THE COURT IS AGREED THAT THE ARRANGEMENTS CHALLENGED BY THE
GOVERNMENT AS VIOLATIVE OF THE SHERMAN LAW CANNOT FIND SHELTER UNDER
THE PATENT LAW, HOWSOEVER VALID THE PATENTS OF THE DEFENDANTS MAY BE.
IN SHORT, WE HAVE FOUND THAT THE VALIDITY OF THE PATENTS IN THE SUIT IS
IRRELEVANT TO THE INVALIDITY OF THE ARRANGEMENTS BASED UPON THEM. 
WHILE FULLY RECOGNIZING THIS, THE COURT NEEDLESSLY CONSIDERS THE
QUESTION WHETHER THE GOVERNMENT MAY, IN VIEW OF UNITED STATES V.
AMERICAN BELL TELEPHONE CO., 167 U.S. 224, ATTACK THE VALIDITY OF THE
PATENTS IN THE PRESENT PROCEEDING. 

IT DOES SO BECAUSE "IT SEEMS INADVISABLE TO LEAVE  ...  AS A
PRECEDENT" THE DECISION OF THE TRIAL COURT THAT "THE GOVERNMENT WAS
ESTOPPED TO ATTACK THE VALIDITY OF THE PATENTS IN THE PRESENT
PROCEEDING."  BUT, SURELY, IT IS EASY ENOUGH TO STERILIZE THE TRIAL
COURT'S DECISION BY THE EXPLICIT DECLARATION THAT THE ISSUE NEED NOT BE
DECIDED. 

I SHALL NOT FOLLOW THE COURT'S LEAD AND INDULGE IN DICTA ON THE
QUESTION WHETHER, IN A SUIT LIKE THIS, THE ISSUE OF PATENTABILITY CAN
BE CONTESTED BY THE GOVERNMENT.  BUT, AS BEARING UPON THE
UNDESIRABILITY OF ANNOUNCING DICTA ON THIS ISSUE, IT IS PERTINENT TO
POINT OUT THAT THE CASES ON WHICH THE COURT RELIES FOR ITS
PRONOUNCEMENT HARDLY DISPOSE OF THE PROBLEM.  THEY ARE CASES IN WHICH A
LICENSEE RESISTED CLAIMS FOR ROYALTIES ON WHAT PURPORTED TO BE VALID
PATENTS.  ROYALTIES WERE REFUSED BECAUSE THERE WERE NO PATENTS ON WHICH
THEY WERE OWED.  SUCH WAS THE ISSUE INVOLVED IN SOLA ELECTRIC CO. V.
JEFFERSON ELECTRIC CO., 317 U.S. 173; KATZINGER CO. V. CHICAGO MFG.
CO., 329 U.S. 394; MACGREGOR V. WESTINGHOUSE CO., 329 U.S. 402. 
DIFFERENT CONSIDERATIONS COME INTO PLAY WHEN THE GOVERNMENT SEEKS A
DECLARATION OF INVALIDITY.  SEE UNITED STATES V. AMERICAN BELL
TELEPHONE CO., SUPRA.  I AM NOT REMOTELY INTIMATING THAT THE
DIFFERENCES ARE DECISIVE.  I AM MERELY SUGGESTING THAT A DUE WEIGHING
OF THE DIFFERENCES, IN THE LIGHT OF THE BELL TELEPHONE CASE, SHOULD
AWAIT THE DUTY OF ADJUDICATION.  IT SHOULD NOT BE THE UNDESIRABLE
PRODUCT OF DELIBERATE DICTA. 

THE COURT REFERS TO HURN V. OURSLER, 289 U.S. 238, 240, AS REASON FOR
PASSING ON AN ISSUE THAT "NEED NOT BE DECIDED TO DISPOSE OF THIS CASE,"
BECAUSE "IT SEEMS INADVISABLE TO LEAVE THE (TRIAL COURT'S) DECISION AS
A PRECEDENT."  AS TO OUR PROBLEM, HURN V. OURSLER WAS EXACTLY THE
OPPOSITE FROM THIS CASE.  THE ISSUE ON WHICH THIS COURT PRONOUNCED IN
HURN V. OURSLER WAS INESCAPABLY THE ISSUE THAT HAD TO BE DECIDED TO
DISPOSE OF THE CASE. 

THE ISSUE IN HURN V. OURSLER WAS THIS:  WHERE A SUIT FOR INFRINGEMENT
OF A COPYRIGHTED PLAY WAS BROUGHT IN A FEDERAL COURT AND WITH IT WAS
JOINED A NON-FEDERAL CAUSE OF ACTION BASED ON UNFAIR COMPETITION IN
REGARD TO THAT PLAY, HAS THE FEDERAL COURT JURISDICTION TO PASS ON THE
MERITS OF THE CLAIM OF UNFAIR COMPETITION AFTER THE COURT HAD REJECTED
THE FEDERALLY-BASED SUIT FOR INFRINGEMENT?  THE TRIAL COURT HELD NOT,
AND DISMISSED THE NON-FEDERAL CLAIM FOR WANT OF JURISDICTION AFTER
DISMISSING THE FEDERAL CLAIM ON THE MERITS.  WHEN THE CASE CAME HERE
THIS COURT COULD NOT POSSIBLY SUSTAIN THE TRIAL COURT (WHICH HAD BEEN
AFFIRMED BY THE CIRCUIT COURT OF APPEALS) WITHOUT NECESSARILY AFFIRMING
THE TRIAL COURT'S RULING ON THE ISSUE OF JURISDICTION.  THIS COURT
REVERSED THE TRIAL COURT ON THAT ISSUE AND HELD THAT THE DISTRICT COURT
HAD JURISDICTION.  IT FOUND, HOWEVER, THAT THE CAUSE OF ACTION SHOULD
HAVE BEEN DISMISSED BUT ON THE MERITS.  ACCORDINGLY, THIS COURT
MODIFIED THE DECREE SO THAT THE DISMISSAL WAS ON THE MERITS AND NOT FOR
WANT OF JURISDICTION.  THIS COURT COULD NOT HAVE REACHED THE MERITS
WITHOUT FIRST DETERMINING WHETHER THERE WAS JURISDICTION TO REACH
THEM.  IN SHORT, IN HURN V. OURSLER THE PRECEDENT OF THE DISTRICT COURT
HAD TO BE SET ASIDE IN ORDER TO DECIDE THE CASE.  HERE, THE "PRECEDENT"
OF THE DISTRICT COURT IS UPON AN ISSUE WHICH IS ESSENTIALLY IRRELEVANT,
AND THEREFORE WE SHOULD NOT FOLLOW THE ERROR OF THE DISTRICT COURT IN
PRONOUNCING UPON AN ISSUE WHICH "NEED NOT BE DECIDED TO DISPOSE OF THIS
CASE." 

    APPENDIX TO OPINION OF THE COURT. 

       LICENSE AGREEMENT. 

THIS AGREEMENT MADE THIS 18TH DAY OF OCTOBER, A.D. 1929, BY AND
BETWEEN THE UNITED STATES GYPSUM COMPANY, AN ILLINOIS CORPORATION, OF
CHICAGO, ILLINOIS, HEREINAFTER REFERRED TO AS LICENSOR, AND EBSARY
GYPSUM CO., INC. A NEW YORK CORPORATION, OF NEWARK, NEW JERSEY,
HEREINAFTER REFERRED TO AS LICENSEE, WITNESSETH, THAT 

     .         .      .         .         . 

2.  LICENSOR HAS AGREED TO AND DOES HEREBY GIVE AND GRANT UNTO
LICENSEE AN INDIVISIBLE AND NON-EXCLUSIVE RIGHT, LICENSE AND PRIVILEGE
OF USING THE PROCESS OR PROCESSES AND MAKING AND USING THE MACHINES
AND/OR INVENTIONS SET FORTH AND CLAIMED IN ANY AND ALL OF SAID PATENTS
AND/OR APPLICATIONS FOR LETTERS PATENT SET FORTH IN EXHIBIT A ATTACHED
HERETO IN THE MANUFACTURE OF GYPSUM PLASTERBOARD AND/OR GYPSUM
WALLBOARD AT THE PLANTS OR FACTORIES NOW OWNED AND/OR OPERATED BY
LICENSEE, OR AT ANY OTHER PLANT OR FACTORY HEREAFTER OWNED AND/OR
OPERATED OR CONTROLLED BY IT OR ANY SUBSIDIARY, ASSOCIATED OR
AFFILIATED COMPANY, AND OF MANUFACTURING AT ANY SUCH PLACE OR PLACES,
SELLING AND USING IN THE UNITED STATES OF AMERICA AND THE TERRITORIES
AND POSSESSIONS THEREOF GYPSUM PLASTERBOARD OR GYPSUM WALLBOARD
MANUFACTURED AT ANY SUCH PLACE OR PLACES AND EMBODYING THE INVENTIONS
AND IMPROVEMENTS SET FORTH AND CLAIMED IN SAID PATENTS AND/OR
APPLICATIONS FOR LETTERS PATENT DESCRIBED IN SAID EXHIBIT A, FOR THE
FULL TERM OF SAID LETTERS PATENT OR OF ANY LETTERS PATENT WHICH MAY BE
GRANTED FOR OR UPON ANY OF SAID APPLICATIONS, INCLUDING ANY EXTENSIONS
AND/OR REISSUES HEREOF. 

IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE INDIVISIBLE AND NON
EXCLUSIVE RIGHT, LICENSE AND PRIVILEGE AFORESAID IS GRANTED UPON
CONDITION THAT THE LICENSOR SHALL HAVE AND IT HEREBY RESERVES THE RIGHT
TO DETERMINE AND FIX AT ANY TIME AND TO CHANGE FROM TIME TO TIME DURING
THE EXISTENCE OF SAID PATENTS AND SO LONG AS SAID LICENSE SHALL
CONTINUE, THE MINIMUM PRICE OR PRICES AT WHICH LICENSEE SHALL SELL ANY
PLASTERBOARD OR GYPSUM WALLBOARD MANUFACTURED BY LICENSEE BY USE OF ANY
OF THE MACHINES OR APPLIANCES COVERED BY ANY OF SAID LETTERS PATENT AND
WHICH SHALL EMBODY THE INVENTIONS AND IMPROVEMENTS SET FORTH AND
CLAIMED IN ANY OF SAID PATENTS WHICH ARE PRESENTLY ISSUED, OR ANY OF
SAID PLASTERBOARD OR GYPSUM WALLBOARD MANUFACTURED BY SECOND PARTIES
AND WHICH SHALL EMBODY THE INVENTIONS AND IMPROVEMENTS SET FORTH AND
CLAIMED IN EITHER PATENT NUMBER 1,500,452 OR PATENT NUMBER 1,230,297,
OR COMMENCING WITH THE DATE WHEN A PATENT SHALL HAVE BEEN GRANTED OR
ISSUED FOR OR UPON ANY OF THE SAID ROOS OR BAYER INVENTIONS AND/OR
APPLICATIONS ANY OF SAID PLASTERBOARD OR GYPSUM WALLBOARD MANUFACTURED
BY LICENSEE, THE BODY OR CORE OF WHICH IS MADE ACCORDING TO THE PROCESS
SET FORTH AND CLAIMED IN ANY PATENT GRANTED FOR OR UPON ANY OF SAID
ROOS OR BAYER INVENTIONS AND/OR APPLICATIONS, AND IN CASE LICENSOR
SHALL EXERCISE THE RIGHT SO RESERVED, IT SHALL FIRST SERVE WRITTEN
NOTICE OF ITS INTENTION SO TO DO UPON LICENSEE, ACCOMPANIED WITH A
STATEMENT OF THE MINIMUM PRICE OR PRICES AT WHICH LICENSEE SHALL SELL
SAID GYPSUM PLASTERBOARD OR GYPSUM WALLBOARD, AND THEREAFTER SHALL GIVE
TO LICENSEE WRITTEN OR TELEGRAPHIC NOTICE OF ANY CHANGE IN SUCH PRICE
OR PRICES, AND LICENSEE EXPRESSLY COVENANTS AND AGREES THAT IT WILL
NOT, SO LONG AS THIS AGREEMENT SHALL CONTINUE IN FORCE AND EFFECT AND
AFTER RECEIPT OF SUCH NOTICE GIVEN IN ACCORDANCE WITH THE TERMS AND
CONDITIONS HEREOF, DIRECTLY OR INDIRECTLY, SELL OR OFFER FOR SALE ANY
GYPSUM PLASTERBOARD OR GYPSUM WALLBOARD MANUFACTURED BY IT BY USE OF
ANY OF THE MACHINES OR APPLIANCES COVERED BY ANY OF SAID PATENTS AND
WHICH DURING THE EXISTENCE THEREOF SHALL EMBODY THE INVENTIONS AND
IMPROVEMENTS SET FORTH AND CLAIMED IN ANY OF SAID PATENTS WHICH ARE
PRESENTLY ISSUED, OR ANY GYPSUM PLASTERBOARD OR GYPSUM WALLBOARD
MANUFACTURED BY SECOND PARTIES AND WHICH DURING THE EXISTENCE THEREOF
SHALL EMBODY THE INVENTIONS AND IMPROVEMENTS SET FORTH AND CLAIMED IN
EITHER PATENT NUMBER 1,500,452 OR PATENT NUMBER 1,230,297, OR ANY
GYPSUM PLASTERBOARD OR GYPSUM WALLBOARD MANUFACTURED BY LICENSEE AFTER
A PATENT SHALL HAVE ISSUED UPON ANY OF THE SAID ROOS OR BAYER
INVENTIONS AND/OR APPLICATIONS AND DURING THE EXISTENCE THEREOF, THE
BODY OR CORE OF WHICH IS MADE ACCORDING TO THE PROCESS SET FORTH AND
CLAIMED IN ANY PATENT GRANTED FOR OR UPON ANY OF SAID INVENTIONS AND/OR
APPLICATIONS, AT A PRICE OR PRICES LESS THAN THAT STATED BY LICENSOR IN
SAID NOTICE OR IN ANY SUCH WRITTEN OR TELEGRAPHIC NOTICE OF A CHANGE IN
SUCH PRICE OR PRICES. 

SAID MINIMUM PRICE SHALL NOT BE MORE THAN THAT PRICE AT WHICH
LICENSOR DETERMINES TO SELL PLASTERBOARD OR GYPSUM WALLBOARD EMBODYING
THE INVENTIONS AND IMPROVEMENTS SET FORTH AND CLAIMED IN SAID PATENTS
TO ITS OWN LIKE TRADE IN THE SAME MARKET. 

3.  LICENSEE AGREES TO PAY TO LICENSOR FOR SAID DISCLOSURES,
INFORMATION AND ASSISTANCE AND THE AGREEMENTS OF LICENSOR HEREIN
CONTAINED, AND FOR THE RIGHT, LICENSE AND PRIVILEGE OF USING THE
PROCESSES AND MAKING AND USING THE MACHINES AND/OR INVENTIONS IN THE
MANUFACTURE OF PLASTERBOARD AND GYPSUM WALLBOARD COVERED BY SAID
PATENTS AND APPLICATIONS FOR LETTERS PATENT DESCRIBED IN SAID EXHIBIT
A, AND FOR THE PRIVILEGE OF MANUFACTURING, USING AND/OR SELLING
PLASTERBOARD AND GYPSUM WALLBOARD EMBODYING THE INVENTIONS AND
IMPROVEMENTS SET FORTH AND CLAIMED IN SAID PATENTS AND APPLICATIONS FOR
LETTERS PATENT, AN AMOUNT (HEREINAFTER FOR CONVENIENCE REFERRED TO AS A
LICENSE FEE OR ROYALTY) EQUIVALENT TO THREE AND ONE-HALF PER CENT (3
1/2%) OF THE SELLING PRICE OF LICENSEE OF ALL PLASTERBOARD AND GYPSUM
WALLBOARD OF EVERY KIND, WHETHER OR NOT MADE BY THE USE OF SAID
MACHINES AND/OR EMBODYING THE INVENTIONS AND IMPROVEMENTS SET FORTH AND
CLAIMED IN SAID LETTERS PATENT OR APPLICATIONS FOR LETTERS PATENT,
MANUFACTURED AND SOLD BY LICENSEE BETWEEN THE DATE HEREOF AND FEBRUARY
10, 1937, THE DATE OF THE EXPIRATION OF PATENT NUMBER 1,330,413
MENTIONED IN SAID EXHIBIT A, AND THEREAFTER AN AMOUNT EQUIVALENT TO TWO
PER CENT (2%) OF THE SELLING PRICE OF LICENSEE OF ALL SUCH PLASTERBOARD
AND GYPSUM WALLBOARD MANUFACTURED AND SOLD BY IT BETWEEN FEBRUARY 10,
1937, AND JULY 8, 1941, THE DATE OF THE EXPIRATION OF SAID PATENT
NUMBER 1,500,452, AND THEREAFTER AN AMOUNT EQUIVALENT TO ONE PER CENT
(1%) OF THE SELLING PRICE OF LICENSEE OF ALL SUCH PLASTERBOARD AND
GYPSUM WALLBOARD MANUFACTURED AND SOLD BY IT BETWEEN JULY 8, 1941, AND
THE DATE OF THE EXPIRATION OF THE LAST TO EXPIRE OF ANY PATENT GRANTED
OR ISSUED FOR OR UPON ANY OF THE SAID ROOS OR BAYER APPLICATIONS; ... 

     .   .         .         .         . 

5.  IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE LICENSE HEREIN
GRANTED SHALL BE PERSONAL TO THE LICENSEE, AND THAT THE SAME OR ANY
RIGHT HEREIN OR THEREUNDER SHALL NOT BE SOLD OR ASSIGNED OR TRANSFERRED
WITHOUT THE WRITTEN CONSENT OF LICENSOR, OR TRANSFERRED BY OPERATION OF
LAW; PROVIDED, HOWEVER, THAT THE SAME MAY BE ASSIGNED BY LICENSEE TO
ANY COMPANY ACQUIRING ALL THE ASSETS AND BUSINESS OR ALL OF THE CAPITAL
STOCK OF LICENSEE, ON CONDITION THAT LICENSEE SHALL FIRST OBTAIN AN
AGREEMENT IN WRITING FROM ANY SUCH ASSIGNEE AGREEING TO ASSUME ALL OF
THE OBLIGATIONS OF LICENSEE UNDER THIS AGREEMENT AND TO BE BOUND BY ALL
OF THE TERMS AND CONDITIONS HEREOF AND SHALL DELIVER SUCH AGREEMENT TO
LICENSOR.  LICENSEE AGREES NOT TO SELL ALL OF ITS ASSETS AND BUSINESS
OR ALL OF ITS CAPITAL STOCK OR TO TRANSFER AND CONVEY ITS PLASTERBOARD
AND/OR WALLBOARD BUSINESS, OR ITS ASSETS USED IN CONNECTION THEREWITH,
WITHOUT REQUIRING THE PURCHASER OR PURCHASERS THEREOF TO ASSUME, IN
WRITING, ALL OF THE OBLIGATIONS OF LICENSEE HEREUNDER, AND TO AGREE TO
BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS CONTRACT, AND
DELIVER SUCH AGREEMENT TO LICENSOR. 

6.  LICENSEE AGREES TO KEEP SEPARATE FULL AND ACCURATE BOOKS OF
ACCOUNTS AND RECORDS SHOWING THE EXACT QUANTITY OF ALL PLASTERBOARD AND
GYPSUM WALLBOARD MANUFACTURED AND SOLD BY IT, AS WELL AS A SEPARATE
RECORD OF ALL PLASTERBOARD AND/OR GYPSUM WALLBOARD SOLD BY IT IN
BUNDLES,  ... 

7.  LICENSOR, OR ITS DULY AUTHORIZED REPRESENTATIVE, SHALL HAVE THE
RIGHT AT ALL REASONABLE TIMES DURING BUSINESS HOURS TO INSPECT THE
BOOKS OF ACCOUNT AND RECORDS OF LICENSEE REFERRED TO IN THE NEXT
PRECEDING PARAGRAPH HEREOF, INCLUDING ALL RECORDS OF EVERY KIND SHOWING
THE QUANTITY OF SAID PLASTERBOARD AND GYPSUM WALLBOARD MANUFACTURED AND
SOLD BY IT AND THE QUANTITY THEREOF PUT UP AND SOLD BY IT IN BUNDLES
AND THE PRICE OR PRICES AT WHICH THE SAME WAS SOLD, AND TO MAKE COPIES
THEREOF AND MEMORANDA THEREFROM; ... 

     .         .         .         .         . 

9.  HAVING REGARD FOR THE FACT THAT THERE ARE OR MAY BE CERTAIN
MANUFACTURERS OF PLASTER OR GYPSUM PRODUCTS, JOBBERS OR OTHER WHOLESALE
DISTRIBUTORS OF SUCH PRODUCTS, WHO DO NOT OR MAY NOT MANUFACTURE GYPSUM
WALLBOARD OR PLASTERBOARD BUT WHO DESIRE OR MAY DESIRE TO HAVE GYPSUM
WALLBOARD OR PLASTERBOARD MANUFACTURED FOR THEM, IT IS UNDERSTOOD AND
AGREED THAT LICENSEE MAY MANUFACTURE FOR JOBBERS (BEING THOSE WHO DO
NOT MANUFACTURE BUT BUY AND SELL PLASTERBOARD OR GYPSUM WALLBOARD IN
STRAIGHT CARS OR IN MIXED CARS WITH OTHER BUILDING MATERIAL AND WHO DO
NOT SELL AT RETAIL) GYPSUM WALLBOARD OR PLASTERBOARD EMBODYING THE
INVENTIONS AND IMPROVEMENTS SET FORTH AND CLAIMED IN SAID LETTERS
PATENT OR IN ANY LETTERS PATENT AFTER THE SAME SHALL HAVE BEEN ISSUED,
GRANTED FOR OR UPON ANY OF THE SAID APPLICATIONS AND MAY WITH THE
WRITTEN CONSENT OF FIRST PARTY MANUFACTURE FOR ANY SUCH OTHER
MANUFACTURER OR OTHER WHOLESALE DISTRIBUTOR, GYPSUM WALLBOARD OR
PLASTERBOARD EMBODYING THE SAID INVENTIONS AND IMPROVEMENTS; PROVIDED,
HOWEVER, THAT THE SAID LICENSE FEE OR ROYALTY TO BE PAID TO LICENSOR AS
HEREINBEFORE PROVIDED SHALL BE BASED UPON ALL GYPSUM WALLBOARD AND
PLASTERBOARD MANUFACTURED FOR AND SOLD AND INVOICED TO SUCH OTHER
MANUFACTURER, JOBBER OR WHOLESALE DISTRIBUTOR AND UPON THE REGULAR
SELLING PRICE OF LICENSEE OF SUCH PLASTERBOARD OR GYPSUM WALLBOARD TO
ITS REGULAR DEALER TRADE AT THE TIME OF SUCH SALE AND INVOICE, AND
SHALL NOT BE BASED UPON THE PRICE AT WHICH PLASTERBOARD OR GYPSUM
WALLBOARD IS SOLD AND INVOICED BY LICENSEE TO SUCH OTHER MANUFACTURER,
JOBBER OR WHOLESALE DISTRIBUTOR.  NOTHING HEREINBEFORE CONTAINED IN
THIS AGREEMENT SHALL BE CONSTRUED TO GIVE LICENSEE THE RIGHT TO
MANUFACTURE GYPSUM PLASTERBOARD OR GYPSUM WALLBOARD EMBODYING THE
INVENTIONS AND IMPROVEMENTS SET FORTH AND CLAIMED IN ANY OF SAID
LETTERS PATENT OR IN ANY LETTERS PATENT AFTER THE SAME SHALL HAVE BEEN
GRANTED FOR OR UPON ANY OF SAID APPLICATIONS FOR SAID OTHER
MANUFACTURERS OR WHOLESALE DISTRIBUTORS AND TO SELL THE SAME, WITHOUT
THE WRITTEN CONSENT OF LICENSOR. 

     .         .         .         .     . 

12.  IN THE EVENT THAT EITHER PARTY SHALL AT ANY TIME NEGLECT, FAIL
OR REFUSE TO KEEP OR PERFORM ANY OF THE CONDITIONS OR AGREEMENTS HEREIN
TO BE KEPT BY IT AND PERFORMED, THEN THE OTHER PARTY, AT ITS ELECTION,
MAY SERVE UPON THE PARTY IN DEFAULT WRITTEN NOTICE OF INTENTION TO
TERMINATE THIS LICENSE, WHICH NOTICE SHALL SPECIFY THE ALLEGED NEGLECT,
FAILURE OR REFUSAL, AND IF WITHIN THIRTY (30) DAYS FROM THE DATE OF
DELIVERY OF SAID NOTICE THE PARTY IN DEFAULT SHALL NOT CURE THE DEFAULT
SPECIFIED IN SAID NOTICE, THEN THE OTHER PARTY MAY CANCEL AND TERMINATE
THIS AGREEMENT BY NOTIFYING THE PARTY IN DEFAULT IN WRITING OF ITS
ELECTION SO TO DO, WITHOUT THE NECESSITY OF ANY COURT ACTION; ... 

     .         .         .         . . 

15.  IN CASE LICENSOR SHALL, SUBSEQUENT TO THE EFFECTIVE DATE HEREOF,
GRANT TO ANY OTHER PERSON EXCEPT ABEL DAVIS AND EUGENE HOLLAND,
RECEIVERS OF THE UNIVERSAL GYPSUM & LIME CO. OR THEIR SUCCESSORS OR TO
THE SAID UNIVERSAL GYPSUM & LIME CO., ANY LICENSE UNDER SAID PATENTS OR
APPLICATIONS FOR LETTERS PATENT SET FORTH IN SAID EXHIBIT A AND
PARAGRAPH 4 HEREOF FOR THE MANUFACTURE, SALE OR USE OF GYPSUM
PLASTERBOARD OR GYPSUM WALLBOARD OR BUNDLES THEREOF, EMBODYING THE
CLAIMS OR INVENTIONS SET FORTH AND CLAIMED IN SAID PATENTS OR SAID
APPLICATIONS, OR SHALL GRANT ANY RIGHT UNDER ANY SUCH LICENSE, UPON
TERMS MORE FAVORABLE THAN THOSE GRANTED HEREUNDER TO THIS LICENSEE,
THEN IT WILL GRANT TO THIS LICENSEE A LICENSE ON THE SAME TERMS OR
EXTEND TO IT THE SAME RIGHT GRANTED TO ANY SUCH OTHER PERSON.  THIS
PARAGRAPH SHALL NOT APPLY TO ANY LICENSE GRANTED ON OR PRIOR TO THE
EFFECTIVE DATE HEREOF, NOR SHALL THE SAME APPLY TO THE TERMS OF
SETTLEMENT OF ANY CLAIM OF LICENSOR OR PROVISIONS WITH RESPECT TO THE
PAYMENT THEREOF, CONTAINED IN ANY SUCH LICENSE. 
..END :





















MITCHELL V. COHEN, 333 U.S. 411 


ARGUED JANUARY 6, 1948.  - DECIDED MARCH 8, 1948.  - 160 F.2D 915,
REVERSED. 


1.  PART-TIME SERVICE WITH THE VOLUNTEER PORT SECURITY FORCE OF THE
COAST GUARD RESERVE DOES NOT ENTITLE ONE TO VETERANS' PREFERENCE IN
FEDERAL EMPLOYMENT UNDER THE VETERANS' PREFERENCE ACT OF 1944.  PP. 412
423. 

2.  THOSE WHO SERVED TEMPORARILY ON A PART-TIME BASIS WITH THE
VOLUNTEER PORT SECURITY FORCE ARE NOT "EX-SERVICEMEN" WITHIN THE
MEANING OF SEC. 2 OF THE VETERANS' PREFERENCE ACT.  PP. 417-420. 

3.  THE TERM "EX-SERVICEMEN" IN THE VETERANS' PREFERENCE ACT IS TO BE
CONSTRUED AS EMBRACING ONLY THOSE WHO PERFORMED MILITARY SERVICE ON
FULL-TIME ACTIVE DUTY WITH MILITARY PAY AND ALLOWANCES, AND WHO THEREBY
DISLOCATED THE FABRIC OF THEIR NORMAL ECONOMIC AND SOCIAL LIFE.  PP.
421-422. 

4.  THE PROVISION OF SEC. 2 OF THE VETERANS' PREFERENCE ACT
ESTABLISHING PREFERENCE ELIGIBILITY FOR UNMARRIED WIDOWS OF EX
SERVICEMEN, EVEN THOUGH THESE WIDOWS MAY HAVE CONTINUED THEIR NORMAL
CIVILIAN EMPLOYMENT DURING THE WAR, DOES NOT REQUIRE THAT "EX
SERVICEMEN" BE CONSTRUED MORE BROADLY THAN ABOVE INDICATED.  PP. 420
421. 

5.  ONE WHO, ON THE DATE WHEN THE VETERANS' PREFERENCE ACT BECAME
LAW, HAD NOT DISENROLLED FROM THE VOLUNTEER PORT SECURITY FORCE COULD
NOT HAVE ACQUIRED VESTED PREFERENCE RIGHTS UNDER SEC. 18 OF THE ACT, BY
VIRTUE OF A CIVIL SERVICE COMMISSION RULING EXTENDING PREFERENCE RIGHTS
UNDER PRIOR LAWS TO THOSE WHO HAD SERVED WITH THE VOLUNTEER PORT
SECURITY FORCE.  PP. 422-423. 

MITCHELL ET AL., MEMBERS OF THE CIVIL SERVICE COMMISSION, V. COHEN. 

NO. 130.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA* . 

*TOGETHER WITH NO. 131, MITCHELL ET AL., MEMBERS OF THE CIVIL SERVICE
COMMISSION, V. HUBICKEY, ALSO ON CERTIORARI TO THE SAME COURT. 

RESPONDENTS BROUGHT SUITS AGAINST MEMBERS OF THE CIVIL SERVICE
COMMISSION TO ESTABLISH THEIR STATUS AS PREFERENCE ELIGIBLES IN FEDERAL
EMPLOYMENT.  THE DISTRICT COURT GRANTED SUMMARY JUDGMENTS IN THEIR
FAVOR.  69 F.SUPP.  54.  THE COURT OF APPEALS AFFIRMED.  160 F.2D 915. 
THIS COURT GRANTED CERTIORARI.  332 U.S. 754.  REVERSED, P. 423. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE PROBLEM HERE IS WHETHER TEMPORARY MEMBERS OF THE VOLUNTEER PORT
SECURITY FORCE OF THE COAST GUARD RESERVE ARE ENTITLED TO VETERANS'
PREFERENCE IN FEDERAL EMPLOYMENT BY VIRTUE OF THE VETERANS' PREFERENCE
ACT OF 1944.  FN1 

PURSUANT TO SEC. 207 OF THE COAST GUARD AUXILIARY AND RESERVE ACT OF
1941,  FN2  APPROXIMATELY 70,000 PERSONS WERE ENROLLED AS TEMPORARY
MEMBERS OF THE COAST GUARD RESERVE.  THE RESERVE WAS A MILITARY
ORGANIZATION ESTABLISHED AS A COMPONENT PART OF THE COAST GUARD "TO
ENABLE THAT SERVICE TO PERFORM SUCH EXTRAORDINARY DUTIES AS MAY BE
NECESSITATED BY EMERGENCY CONDITIONS."  FN3  THE COAST GUARD, IN TURN,
WAS CREATED AS A MILITARY SERVICE AND CONSTITUTES "A BRANCH OF THE LAND
AND NAVAL FORCES OF THE UNITED STATES."  FN4  ON NOVEMBER 1, 1941, THE
PRESIDENT DIRECTED THAT THE COAST GUARD OPERATE AS PART OF THE NAVY
SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY.  FN5 

OF THE VARIOUS CLASSIFICATIONS OF TEMPORARY MEMBERS OF THE COAST
GUARD RESERVE,  FN6  THE LARGEST WAS KNOWN AS THE VOLUNTEER PORT
SECURITY FORCE.  SERVICE THEREIN WAS PURELY VOLUNTARY AND WAS DEVOTED
TO SUCH ACTIVITIES AS THE PATROL AND GUARDING OF HARBORS, WATERFRONTS,
DOCKS, BRIDGES, SHIPS AND INDUSTRIAL SHORE ESTABLISHMENTS.  THE MEMBERS
OF THIS FORCE TOOK THE OATH OF ALLEGIANCE REQUIRED OF THE REGULAR
MEMBERS OF THE COAST GUARD.  THEY WERE ENROLLED "FOR THE DURATION OF
THE WAR UPON THE COMPLETION OF WHICH YOU WILL BE DISENROLLED UNLESS THE
PERIOD OF YOUR ENROLLMENT IS SOONER TERMINATED BY COAST GUARD
AUTHORITY."  FN7  IN ACTUAL PRACTICE, HOWEVER, THE MEMBERS WERE USUALLY
PERMITTED TO LEAVE THE FORCE AT ANY TIME BY MAKING A REQUEST TO THE
COMMANDING OFFICER OF THE UNIT TO WHICH THEY WERE ASSIGNED.  THEY WERE
GIVEN A "CERTIFICATE OF DISENROLLMENT" UPON SEVERANCE FROM THE FORCE,
HONORABLE DISCHARGES AND MUSTERING-OUT PAY NOT BEING PROVIDED. 

MEMBERS OF THE VOLUNTEER PORT SECURITY FORCE WERE OBLIGATED TO BE ON
ACTIVE DUTY "ONLY AS DIRECTED BY COMPETENT AUTHORITY FOR A MINIMUM OF
12 HOURS PER WEEK."  FN8  IT DOES NOT APPEAR THAT THEIR ACTIVE DUTY
EXCEEDED THAT AMOUNT TO ANY SUBSTANTIAL DEGREE.  BECAUSE OF THE SMALL
NUMBER OF HOURS OF SERVICE, MOST MEMBERS WERE ABLE TO CONTINUE THEIR
REGULAR CIVILIAN EMPLOYMENT WITH LITTLE OR NO INTERFERENCE.  THEY COULD
NOT BE TRANSFERRED FROM THE CITIES IN WHICH THEY LIVED WITHOUT THEIR
CONSENT.  EFFORTS WERE MADE BY THE COAST GUARD TO ASSIGN THE 12-HOUR
WEEKLY DUTY PERIODS TO FIT THE CONVENIENCE OF THE MEMBERS.  AND MANY OF
THEM WERE DISENROLLED AT THEIR OWN REQUEST UPON REPRESENTATIONS THAT
THEIR DUTY ASSIGNMENTS CONFLICTED WITH THEIR CIVILIAN EMPLOYMENT.  THEY
COULD ALSO BE EXCUSED FROM DUTY IF THEY FOUND IT TEMPORARILY
INCONVENIENT. 

THESE MEMBERS PERFORMED THEIR DUTIES WITHOUT PAY.  IN MOST CASES,
HOWEVER, THEY RECEIVED AN ALLOWANCE FOR UNIFORMS; AND IN SOME INSTANCES
THEY RECEIVED FOOD OR SUBSISTENCE ALLOWANCE WHILE ON ACTIVE DUTY. 
MILITARY STATUS ATTACHED TO THEM ONLY DURING PERIODS WHEN THEY WERE
ACTUALLY ENGAGED ON ACTIVE DUTY OR EN ROUTE TO AND FROM SUCH DUTY. 
WHILE ON ACTIVE DUTY THEY WORE THEIR UNIFORMS, WERE SUBJECT TO THE
USUAL COAST GUARD DISCIPLINE AND WERE VESTED WITH THE SAME AUTHORITY AS
MEMBERS OF THE REGULAR COAST GUARD OF SIMILAR RANK. 

AT ALL TIMES THE MEMBERS OF THE VOLUNTEER PORT SECURITY FORCE
REMAINED SUBJECT TO THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. 
THEY WERE REQUIRED TO REGISTER AND WERE LIABLE FOR INDUCTION INTO THE
REGULAR ARMED FORCES.  IN FACT, MANY OF THEM DID ENLIST OR WERE DRAFTED
INTO THOSE FORCES, THEREBY NECESSITATING THEIR DISENROLLMENT AS
TEMPORARY MEMBERS OF THE COAST GUARD RESERVE.  IF ILLNESS OR DISEASE
OCCURRED WHILE ON DUTY, THEY WERE ACCORDED THE SAME HOSPITAL TREATMENT
AS MEMBERS OF THE REGULAR COAST GUARD.  BUT IF THEY WERE INJURED OR
KILLED IN THE LINE OF DUTY, THEY WERE ENTITLED ONLY TO THE BENEFITS
PRESCRIBED BY LAW FOR CIVILIAN EMPLOYEES OF THE UNITED STATES. 
MOREOVER, THEY WERE INELIGIBLE FOR THE BENEFITS OF NATIONAL SERVICE
LIFE INSURANCE. 

RESPONDENT COHEN ENROLLED ON APRIL 13, 1944, AS A MEMBER OF THE
VOLUNTEER PORT SECURITY FORCE AND WAS ASSIGNED TO DUTY WITH THE CAPTAIN
OF THE PORT, WASHINGTON, D.C.  HE PERFORMED HIS PART-TIME DUTIES
WITHOUT COMPENSATION AND WITHOUT INTERRUPTION TO HIS REGULAR EMPLOYMENT
AS A CIVILIAN ECONOMIST IN THE WAR DEPARTMENT.  HE WAS DISENROLLED ON
SEPTEMBER 5, 1945, HAVING SERVED ON ACTIVE DUTY ON 58 DAYS FOR A TOTAL
SERVICE OF 398 HOURS.  RESPONDENT HUBICKEY WAS ENROLLED IN THE FORCE ON
OCTOBER 18, 1944, AND WAS ASSIGNED TO DUTY WITH THE CAPTAIN OF THE
PORT, PHILADELPHIA, PA.  HE TOO PERFORMED HIS PART-TIME DUTIES WITHOUT
COMPENSATION AND WITHOUT INTERFERENCE WITH HIS REGULAR WORK AS A
CIVILIAN NAVAL ARCHITECT IN THE NAVY DEPARTMENT.  ON SEPTEMBER 30,
1945, HE WAS DISENROLLED, HAVING SERVED ON ACTIVE DUTY ON 32 DAYS FOR A
TOTAL SERVICE OF 250 HOURS. 

ON APRIL 4, 1944, BEFORE THE PASSAGE OF THE VETERANS' PREFERENCE ACT,
THE CIVIL SERVICE COMMISSION HAD RULED THAT THE DUTIES PERFORMED BY
THOSE ENROLLED IN THE VOLUNTEER PORT SECURITY FORCE ENTITLED THEM TO
VETERANS' PREFERENCE IN FEDERAL EMPLOYMENT UNDER THE THEN EXISTING
PREFERENCE LAWS.  FN9  BUT ON NOVEMBER 4, 1944, AFTER THE ENACTMENT OF
THE STATUTE IN QUESTION AND PURSUANT TO A RECOMMENDATION OF THE ACTING
SECRETARY OF THE NAVY, THE COMMISSION CHANGED THIS RULING AND DECIDED
THAT SUCH DUTIES DID NOT ENTITLE ONE TO VETERANS' PREFERENCE UNDER THE
TERMS OF THE STATUTE.  FN10 

THE TWO RESPONDENTS WERE DENIED VETERANS' PREFERENCE IN THEIR
GOVERNMENT EMPLOYMENT IN ACCORDANCE WITH THE COMMISSION'S SECOND
RULING.  DUE TO GENERAL REDUCTIONS IN FORCE, RESPONDENT COHEN WAS
DISCHARGED FROM THE WAR DEPARTMENT AND RESPONDENT HUBICKEY WAS NOTIFIED
THAT HE WOULD BE DISCHARGED FROM THE NAVY DEPARTMENT.  THEY THEN
BROUGHT THESE ACTIONS TO COMPEL THE MEMBERS OF THE COMMISSION TO
CLASSIFY THEM AS PREFERENCE ELIGIBLES; THEY ALSO ASKED THE COURT TO
ADJUDGE AND DECLARE THEM ENTITLED TO THE STATUS OF PREFERENCE ELIGIBLES
UNDER THE PROVISIONS OF THE VETERANS' PREFERENCE ACT.  THE DISTRICT
COURT GRANTED SUMMARY JUDGMENTS IN THEIR FAVOR.  69 F.SUPP.  54.  THE
COURT OF APPEALS AFFIRMED, ONE JUSTICE DISSENTING.  160 F.2D 915.  WE
BROUGHT THE CASES HERE ON CERTIORARI, THE PROBLEM RAISED BEING ONE OF
IMPORTANCE IN THE ADMINISTRATION OF THE VETERANS' PREFERENCE ACT. 

THE PERTINENT PORTION OF THE VETERANS' PREFERENCE ACT IS TO BE FOUND
NEAR THE END OF SEC. 2.  THAT ESTABLISHES PREFERENCE IN GOVERNMENT
EMPLOYMENT FOR "THOSE EX-SERVICEMEN AND WOMEN WHO HAVE SERVED ON ACTIVE
DUTY IN ANY BRANCH OF THE ARMED FORCES OF THE UNITED STATES, DURING ANY
WAR, ...  AND HAVE BEEN SEPARATED THEREFROM UNDER HONORABLE
CONDITIONS." 

RESPONDENTS CLAIM THAT THEIR SERVICE WITH THE VOLUNTEER PORT SECURITY
FORCE BRINGS THEM SQUARELY WITHIN THIS STATUTORY PROVISION, HENCE
ENTITLING THEM TO VETERANS' PREFERENCE.  IT IS UNDISPUTED, OF COURSE,
THAT THEY DID SERVE PART-TIME ON ACTIVE DUTY IN A BRANCH OF THE ARMED
FORCES OF THE UNITED STATES DURING WORLD WAR II AND THAT THEY WERE
SEPARATED THEREFROM UNDER HONORABLE CONDITIONS.  THE CRUCIAL QUESTION
IS WHETHER THEY THEREBY ARE "EX-SERVICEMEN" WITHIN THE MEANING OF THIS
PARTICULAR STATUTE.  ON THAT SCORE, RESPONDENTS URGE THAT THIS TERM
MUST BE GIVEN ITS ORDINARY AND LITERAL MEANING SO AS TO REFER TO ALL
THOSE WHO PERFORMED MILITARY SERVICE.  FN11 THE LENGTH OR CONTINUITY OF
ACTIVE DUTY AND THE PRESENCE OR ABSENCE OF COMPENSATION BECOME
IMMATERIAL FROM RESPONDENTS' POINT OF VIEW; THE MERE PERFORMANCE OF
SOME TYPE OF MILITARY SERVICE IS THOUGHT TO BE SUFFICIENT.  SINCE
RESPONDENTS CONCEDEDLY DID PERFORM MILITARY SERVICE WHILE ON
INTERMITTENT ACTIVE DUTY WITH THE VOLUNTEER PORT SECURITY FORCE, THE
CONCLUSION IS REACHED THAT THEY ARE "EXSERVICEMEN" WITHIN THE
CONTEMPLATION OF THIS STATUTE.  RESORT TO THE LEGISLATIVE HISTORY AND
OTHER SECONDARY SOURCES IS SAID TO BE UNWARRANTED, SO CLEAR AND OBVIOUS
IS THE MEANING OF THAT TERM. 

IN OUR OPINION, HOWEVER, THE TERM "EX-SERVICEMEN" HAS NO SINGLE,
PRECISE DEFINITION WHICH PERMITS US TO READ AND APPLY THAT TERM WITHOUT
HELP FROM THE CONTEXT IN WHICH IT APPEARS AND THE PURPOSE FOR WHICH IT
WAS INSERTED IN THE STATUTE.  EX-SERVICEMEN ARE INDEED THOSE WHO HAVE
PERFORMED MILITARY SERVICE.  AND THEY MAY INCLUDE THOSE WHO HAVE SERVED
ON ACTIVE DUTY ONLY PART-TIME AND WITHOUT COMPENSATION.  BUT THIS
DESIGNATION MAY ALSO BE CONFINED TO A MORE DEFINITE AND NARROW CLASS OF
INDIVIDUALS WHO PERFORMED MILITARY SERVICE, TO THOSE WHOSE FULL TIME
AND EFFORTS WERE AT THE DISPOSAL OF MILITARY AUTHORITIES AND WHOSE
COMPENSATION INCLUDED MILITARY PAY AND ALLOWANCES.  SUCH EX-SERVICEMEN
ARE THOSE WHO COMPLETELY DISASSOCIATED THEMSELVES FROM THEIR CIVILIAN
STATUS AND THEIR CIVILIAN EMPLOYMENT DURING THE PERIOD OF THEIR
MILITARY SERVICE, SUFFERING IN MANY CASES FINANCIAL HARDSHIP AND
SEPARATION FROM HOME AND FAMILY.  THEY FORMED THE GREAT BULK OF THE
REGULAR ARMED FORCES DURING WORLD WAR II.  IN THE POPULAR MIND, THEY
WERE TYPIFIED BY THE FULLFLEDGED SOLDIER, SAILOR, MARINE OR COAST
GUARDSMAN.  OUR PROBLEM, OF COURSE, IS WHETHER CONGRESS USED THE TERM
"EX-SERVICEMEN" IN THE BROAD OR NARROW SENSE WHEN IT ENACTED THE
VETERANS' PREFERENCE ACT.  AND THE ANSWER TO THAT PROBLEM IS TO BE
DETERMINED BY AN EXAMINATION OF THE STATUTORY SCHEME RATHER THAN BY
RELIANCE UPON DICTIONARY DEFINITIONS. 

THE VETERANS' PREFERENCE ACT WAS ENACTED IN 1944 TO AID IN THE
READJUSTMENT AND REHABILITATION OF WORLD WAR II VETERANS.  IT WAS FELT
THAT THE PROBLEMS OF THESE RETURNING VETERANS WERE PARTICULARLY ACUTE
AND MERITED SPECIAL CONSIDERATION.  THEIR NORMAL EMPLOYMENT AND MODE OF
LIFE HAD BEEN SERIOUSLY DISRUPTED BY THEIR SERVICE IN THE ARMED FORCES
AND IT WAS THOUGHT THAT THEY COULD NOT BE EXPECTED TO RESUME THEIR
REGULAR ACTIVITIES WITHOUT REEMPLOYMENT AND REHABILITATION AIDS.  THE
FEDERAL GOVERNMENT, IN ITS CAPACITY AS AN EMPLOYER, DETERMINED TO TAKE
THE LEAD IN SUCH A PROGRAM.  FN12  THE VETERANS' PREFERENCE ACT WAS
ACCORDINGLY ADOPTED, CREATING SPECIAL PREFERENCE AND PROTECTION FOR
RETURNING VETERANS AT EVERY STAGE OF FEDERAL EMPLOYMENT. 

THROUGHOUT THE LEGISLATIVE REPORTS AND DEBATES LEADING TO THE BIRTH
OF THIS STATUTE IS EVIDENT A CONSISTENT DESIRE TO HELP ONLY THOSE WHO
HAD SACRIFICED THEIR NORMAL PURSUITS AND SURROUNDINGS TO AID IN THE
STRUGGLE TO WHICH THIS NATION HAD DEDICATED ITSELF.  FN13  IT WAS THE
VETERANS OR EX-SERVICEMEN WHO HAD BEEN COMPLETELY DIVORCED FROM THEIR
CIVILIAN EMPLOYMENT BY REASON OF THEIR FULL-TIME SERVICE WITH THE ARMED
FORCES WHO WERE THE OBJECTS OF CONGRESSIONAL SOLICITUDE.  REEMPLOYMENT
AND REHABILITATION WERE CONSIDERED TO BE NECESSARY ONLY AS TO THEM. 

THERE IS NOTHING TO INDICATE THAT THE LEGISLATIVE MIND IN THIS
INSTANCE WAS DIRECTED TOWARD GRANTING SPECIAL BENEFITS OR REWARDS TO
THOSE WHO PERFORMED MILITARY SERVICE WITHOUT INTERFERENCE WITH THEIR
NORMAL EMPLOYMENT AND MODE OF LIFE.  AS TO THEM, ASSISTANCE IN
REEMPLOYMENT AND REHABILITATION WAS THOUGHT UNNECESSARY.  THEIR
CIVILIAN EMPLOYMENT STATUS REMAINED UNCHANGED BY REASON OF THEIR
MILITARY SERVICE.  AND SINCE THEIR CIVILIAN LIFE WAS SUBSTANTIALLY
UNALTERED, THERE WAS NO PROBLEM OF AIDING THEIR READJUSTMENT BACK TO
SUCH A LIFE.  INDEED, TO HAVE GIVEN THEM PREFERENCE RIGHTS SOLELY
BECAUSE OF THEIR PART-TIME MILITARY SERVICE WOULD HAVE BEEN
INCONSISTENT WITH THE PROFESSED AIMS OF THE STATUTORY FRAMERS.  SUCH
PREFERENCE WOULD HAVE DILUTED THE BENEFITS CONFERRED ON THOSE EX
SERVICEMEN WHO HAD MADE FULL-SCALE SACRIFICES; AND IT WOULD HAVE BEEN
INEQUITABLE TO THE MANY CIVILIANS WHO ALSO HAD PARTICIPATED VOLUNTARILY
IN ESSENTIAL WAR AND DEFENSE ACTIVITIES BUT WHO HAD NOT BEEN DIRECTLY
CONNECTED WITH A BRANCH OF THE ARMED FORCES. 

IT IS TRUE THAT SEC. 2 OF THE ACT ESTABLISHES PREFERENCE ELIGIBILITY
FOR THE UNMARRIED WIDOWS OF DECEASED EX-SERVICEMEN DESPITE THE FACT
THAT THESE WIDOWS MAY HAVE CONTINUED THEIR NORMAL CIVILIAN EMPLOYMENT
DURING THE WAR.  BUT THE PREFERENCE RIGHTS THEREBY GRANTED ARE
DERIVATIVE IN NATURE.  THEY ARE CONFERRED ON THE WIDOWS BECAUSE OF THE
DISLOCATION AND SEVERANCE FROM CIVIL LIFE WHICH THEIR DECEASED HUSBANDS
SUFFERED WHILE PERFORMING FULL-TIME MILITARY DUTIES AND IN PARTIAL
SUBSTITUTION FOR THE LOSS IN FAMILY EARNING POWER OCCASIONED BY THEIR
HUSBANDS' DEATHS.  CONGRESS FELT THAT THIS WAS ONE WAY OF EXPRESSING
THE MORAL OBLIGATION AND THE DEBT OF GRATITUDE WHICH THIS NATION WAS
THOUGHT TO OWE THESE WIDOWS.  SUCH A PROVISION CERTAINLY AFFORDS NO
BASIS FOR WIDENING THE CONCEPT OF "EX-SERVICEMEN" BEYOND THAT WHICH WE
HAVE INDICATED.  THE WIDOWS OF EX-SERVICEMEN ARE IN A SPECIAL CATEGORY
WHICH CANNOT BE COMPARED, IN TERMS OF SACRIFICE OR NEED FOR
REEMPLOYMENT AND REHABILITATION, WITH ANY GROUP OF INDIVIDUALS WHO
PERFORMED PART-TIME MILITARY DUTIES.  FN14    IN THE LIGHT OF THE VERY
CLEAR PURPOSE WHICH CONGRESS HAD IN MIND IN ADOPTING THE VETERANS'
PREFERENCE ACT, WE ARE CONSTRAINED TO DEFINE THE TERM "EX-SERVICEMEN,"
FOR THE PURPOSES OF THIS PARTICULAR STATUTE, AS RELATING ONLY TO THOSE
WHO PERFORMED MILITARY SERVICE ON FULL-TIME ACTIVE DUTY WITH MILITARY
PAY AND ALLOWANCES, THEREBY DISLOCATING THE FABRIC OF THEIR NORMAL
ECONOMIC AND SOCIAL LIFE.  FN15  IT THUS BECOMES OBVIOUS THAT
RESPONDENTS' SERVICE WITH THE VOLUNTEER PORT SECURITY FORCE OF THE
COAST GUARD RESERVE CANNOT QUALIFY THEM AS "EX-SERVICEMEN" ENTITLED TO
VETERANS' PREFERENCE UNDER THIS ENACTMENT.  THEY CONTINUED THEIR NORMAL
CIVILIAN EMPLOYMENT WITH THE WAR DEPARTMENT AND THE NAVY DEPARTMENT
DURING THE WAR, EMPLOYMENT WHICH SUFFERED AS LITTLE AS POSSIBLE FROM
THEIR MILITARY SERVICE; THEY SERVED ON ACTIVE DUTY FOR ONLY RELATIVELY
SHORT PERIODS EACH WEEK AND COULD BE DISENROLLED AT THEIR OWN REQUEST;
THEY RECEIVED NO MILITARY PAY AND VERY FEW ALLOWANCES; THEY COULD NOT
BE TRANSFERRED AWAY FROM THEIR HOMES WITHOUT THEIR CONSENT.  THEY WERE
THEREFORE ABLE TO RETAIN THE ESSENTIAL ELEMENTS OF THEIR CIVILIAN
LIFE.  AS TO THEM, THERE WAS NO PROBLEM OF REEMPLOYMENT OR
REHABILITATION CAUSED BY THEIR MILITARY SERVICE.  THEY ARE NOT AMONG
THE "EX-SERVICEMEN" WHOM CONGRESS DESIRED TO ASSIST BY MEANS OF THE
VETERANS' PREFERENCE ACT. 

ONE OTHER MATTER REMAINS.  RESPONDENTS CLAIM, AND THE COURT OF
APPEALS HELD, THAT THEY ACQUIRED VESTED PREFERENCE RIGHTS UNDER SEC. 18
OF THE ACT.  IN PERTINENT PART, SEC. 18 PROVIDES THAT "THIS ACT SHALL
NOT BE CONSTRUED TO TAKE AWAY FROM ANY PREFERENCE ELIGIBLE ANY RIGHTS
HERETOFORE GRANTED TO, OR POSSESSED BY, HIM UNDER ANY EXISTING LAW,
EXECUTIVE ORDER, CIVIL-SERVICE RULE OR REGULATION, OF ANY DEPARTMENT OF
THE GOVERNMENT OR OFFICER THEREOF."  IT IS SAID THAT THE CIVIL SERVICE
COMMISSION'S RULING OF APRIL 4, 1944, EXTENDING PREFERENCE RIGHTS UNDER
THE THEN EXISTING LAWS TO THOSE WHO HAD PERFORMED SERVICE WITH THE
VOLUNTEER PORT SECURITY FORCE, GAVE RESPONDENTS VESTED RIGHTS WHICH
WERE PRESERVED BY SEC. 18 WHEN THE VETERANS' PREFERENCE ACT WAS
SUBSEQUENTLY ENACTED. 

THIS CONTENTION IS WITHOUT SUBSTANCE.  VETERANS' PREFERENCE RIGHTS BY
THEIR VERY NATURE DO NOT ACCRUE UNTIL ONE HAS BECOME A VETERAN THROUGH
SEPARATION FROM THE ARMED FORCES.  ON JUNE 27, 1944, WHEN THE VETERANS'
PREFERENCE ACT BECAME LAW, NEITHER OF THE RESPONDENTS HAD AS YET
DISENROLLED FROM THE VOLUNTEER PORT SECURITY FORCE.  IN FACT,
RESPONDENT HUBICKEY HAD NOT EVEN ENROLLED BY THAT DATE.  THUS THEY
COULD NOT BE CLASSED AS VETERANS OR EX-SERVICEMEN, WHATEVER DEFINITION
BE GIVEN THOSE TERMS, ON JUNE 27, 1944, AND THEY COULD NOT HAVE EARNED
ANY VETERANS' PREFERENCE RIGHTS PRIOR TO THAT DATE.  THE COMMISSION'S
RULING OF APRIL 4, 1944, DID NO MORE THAN INFORM RESPONDENTS THAT THEY
WOULD BE ENTITLED TO VETERANS' PREFERENCE UPON DISENROLLMENT, PROVIDED
SUCH RULING WAS LAWFUL AND STILL IN EFFECT.  IT DID NOT PURPORT TO GIVE
THEM PREFERENCE RIGHTS AS OF APRIL 4, 1944, OR TO CAUSE THOSE RIGHTS TO
ACCRUE BEFORE DISENROLLMENT.  SINCE THEY DID NOT POSSESS AND HAD NOT
BEEN GRANTED ANY SUCH RIGHTS UNDER PRIOR LAW, RESPONDENTS WERE
COMPLETELY UNAFFECTED BY THE PROVISIONS OF SEC. 18.  THAT SECTION WAS
PRIMARILY DESIGNED TO PERPETUATE PREFERENCES GRANTED EARLIER TO
VETERANS WHO HAD SERVED IN THE ARMED FORCES DURING PEACETIME AND WHO
WERE THEN IN GOVERNMENT EMPLOYMENT OR ON CIVIL-SERVICE REGISTERS.  FN16
RESPONDENTS WERE OBVIOUSLY NOT VETERANS OF THAT TYPE.  REVERSED. 

FN1  58 STAT. 387, 5 U.S.C. (SUPP. V, 1946) SEC. 851. 

FN2  55 STAT. 9, 12, AS AMENDED, 14 U.S.C. (SUPP. V, 1946) SEC. 307. 

FN3  SEC. 201 OF THE COAST GUARD AUXILIARY AND RESERVE ACT OF 1941,
55 STAT. 9, 11, AS AMENDED, 14 U.S.C. (SUPP. V, 1946) SEC. 301. 

FN4  55 STAT. 585, 14 U.S.C. SEC. 1. 

FN5  EXECUTIVE ORDER NO. 8929, 6 FED. REG. 5581. 

FN6  THE OTHER CLASSIFICATIONS WERE:  (1) FULL-TIME ACTIVE DUTY WITH
MILITARY PAY AND ALLOWANCES; (2) PILOTS WITHOUT PAY AND ALLOWANCES
OTHER THAN FOR UNIFORMS, BUT PAID BY THEIR OWN COMPANIES; (3) OFFICERS
OF GREAT LAKES VESSELS WITHOUT PAY AND ALLOWANCES OTHER THAN FOR
UNIFORMS, BUT PAID BY THEIR OWN COMPANIES; (4) COAST GUARD POLICE
WITHOUT PAY AND ALLOWANCES; (5) CIVIL SERVICE EMPLOYEES OF THE COAST
GUARD ENROLLED FOR FULL-TIME ACTIVE DUTY WITHOUT PAY OTHER THAN
COMPENSATION FOR THEIR CIVILIAN POSITIONS. 

FN7  FROM THE FORM ENTITLED "TEMPORARY MEMBER OF COAST GUARD RESERVE
ENROLLMENT AND ACTIVE DUTY ASSIGNMENT." 

FN8  IBID.  IT ALSO APPEARS FROM THIS FORM THAT THOSE MENTIONED IN
CLASSIFICATIONS (2) AND (5) IN FOOTNOTE 6, SUPRA, WERE SUBJECT TO CALL
AT ALL TIMES.  APPARENTLY THE OTHER CLASSIFICATIONS, INCLUDING THE
VOLUNTEER PORT SECURITY FORCE, WERE NOT SUBJECT TO SUCH A CALL. 

FN9  CIRCULAR LETTER NO. 4145 TO REGIONAL DIRECTORS AND DIVISION
CHIEFS OF THE COMMISSION.  THIS PROVIDED THAT ACTIVE DUTY PERFORMED BY
TEMPORARY MEMBERS OF THE COAST GUARD RESERVE, WHETHER FULL-TIME, PART
TIME, OR INTERMITTENTLY, EITHER WITH OR WITHOUT PAY, INCLUDING
GOVERNMENT EMPLOYEES ENROLLED WITHOUT PAY OTHER THAN THE COMPENSATION
OF THEIR CIVILIAN POSITIONS, CONSTITUTED ACTIVE DUTY AS DISTINGUISHED
FROM TRAINING DUTY AND ENTITLED THE MEMBER PERFORMING SUCH DUTY TO
PREFERENCE BENEFITS UNDER THE THEN EXISTING PREFERENCE LAWS. 

FN10  DEPARTMENTAL CIRCULAR NO. 508 TO HEADS OF DEPARTMENTS AND
INDEPENDENT ESTABLISHMENTS.  THIS MODIFIED THE EARLIER RULING AND
PROVIDED THAT ONLY THOSE TEMPORARY COAST GUARD RESERVISTS PERFORMING
FULL-TIME DUTY WITH PAY AND ALLOWANCES AT SHORE STATIONS OR ABOARD
COAST GUARD VESSELS WERE ENTITLED TO PREFERENCE UNDER THE VETERANS'
PREFERENCE ACT OF 1944. 

FN11  RESPONDENTS POINT OUT THAT THE WORD "SERVICEMAN" IS DEFINED AS
"ONE WHO HAS PERFORMED MILITARY SERVICE."  WEBSTER'S NEW INTERNATIONAL
DICTIONARY, 2D ED. (1942). 

FN12  "I BELIEVE THAT THE FEDERAL GOVERNMENT, FUNCTIONING IN ITS
CAPACITY AS AN EMPLOYER, SHOULD TAKE THE LEAD IN ASSURING THOSE WHO ARE
IN THE ARMED SERVICES THAT WHEN THEY RETURN SPECIAL CONSIDERATION WILL
BE GIVEN TO THEM IN THEIR EFFORTS TO OBTAIN EMPLOYMENT.  IT IS
ABSOLUTELY IMPOSSIBLE TO TAKE MILLIONS OF OUR YOUNG MEN OUT OF THEIR
NORMAL PURSUITS FOR THE PURPOSE OF FIGHTING TO PRESERVE THE NATION, AND
THEN EXPECT THEM TO RESUME THEIR NORMAL ACTIVITIES WITHOUT HAVING ANY
SPECIAL CONSIDERATION SHOWN THEM. 

"THE PROBLEMS OF READJUSTMENT WILL BE DIFFICULT FOR ALL OF US.  THEY
WILL BE PARTICULARLY DIFFICULT FOR THOSE WHO HAVE SPENT MONTHS AND EVEN
YEARS AT THE BATTLE FRONTS ALL OVER THE WORLD.  SURELY A GRATEFUL
NATION WILL WANT TO EXPRESS ITS GRATITUDE IN DEEDS AS WELL AS IN
WORDS." 

LETTER FROM THE PRESIDENT TO REP. RAMSPECK, QUOTED IN H.R. REP. NO.
1289, 78TH CONG., 2D SESS., P. 5. 

FN13  H.R. REP. NO. 1289, 78TH CONG., 2D SESS.; S. REP. NO. 907, 78TH
CONG., 2D SESS.; 90 CONG. REC. 3501-3507.  THE HOUSE REPORT STATED (P.
3):  "PRIVATE EMPLOYERS AND CORPORATIONS, AS WELL AS STATE, COUNTY, AND
MUNICIPAL GOVERNMENTS, HAVE BEEN URGED THROUGH THE SELECTIVE-SERVICE
LAW AND OTHERWISE TO AFFORD REEMPLOYMENT TO VETERANS WHEN THEY LEAVE
THE ARMED FORCES.  YOUR COMMITTEE FEELS THAT THE FEDERAL GOVERNMENT
SHOULD SET THE PACE, AND THAT THIS PROPOSAL IS AN ESSENTIAL PART OF THE
REEMPLOYMENT AND REHABILITATION PROGRAM."  THE SENATE REPORT STATED (P.
1): "THE COMMITTEE BELIEVES THAT IN VIEW OF THE FACT THAT MEMBERS OF
THE ARMED FORCES RAPIDLY ARE BEING RETURNED TO CIVILIAN LIFE, THE BILL
SHOULD BE ENACTED WITHOUT DELAY." 

FN14  THE SAME OBSERVATIONS APPLY TO THE PROVISION IN SEC. 2 GIVING
VETERANS' PREFERENCE TO THE WIVES OF EX-SERVICEMEN WHO HAVE A SERVICE
CONNECTED DISABILITY AND WHO THEMSELVES HAVE BEEN UNABLE TO QUALIFY FOR
ANY CIVIL-SERVICE APPOINTMENT.  SEE ALSO 62 STAT. 3, EXTENDING
VETERANS' PREFERENCE BENEFITS TO THE WIDOWED MOTHERS OF DECEASED OR
PERMANENTLY AND TOTALLY DISABLED EX-SERVICEMEN.  H.R. REP. NO. 697,
80TH CONG., 1ST SESS.; S. REP. NO. 480, 80TH CONG., 1ST SESS. 

FN15  THE VIEW WE TAKE OF THIS MATTER COINCIDES WITH THAT EXPRESSED
BY THE SUPPORTERS OF H.R. 1389, 80TH CONG., 1ST SESS.  THAT BILL, AS
AMENDED, PROPOSED TO CHANGE SEC. 2 OF THE VETERANS' PREFERENCE ACT BY
PROVIDING THAT "'ACTIVE DUTY' IN ANY BRANCH OF THE ARMED FORCES OF THE
UNITED STATES SHALL MEAN ACTIVE FULL-TIME DUTY WITH MILITARY PAY AND
ALLOWANCES IN ANY BRANCH OF THE ARMED FORCES DURING ANY CAMPAIGN OR
EXPEDITION (FOR WHICH A CAMPAIGN BADGE HAS BEEN AUTHORIZED)." 

HEARINGS WERE HELD BEFORE THE HOUSE COMMITTEE ON POST OFFICE AND
CIVIL SERVICE.  THE BILL WAS UNANIMOUSLY REPORTED OUT BY THE COMMITTEE,
H.R. REP. NO. 465, 80TH CONG., 1ST SESS., AND WAS ADOPTED BY VOICE VOTE
BY THE HOUSE OF REPRESENTATIVES, 93 CONG. REC. 7315-7318.  A UNANIMOUS
SENATE COMMITTEE ON CIVIL SERVICE ALSO REPORTED THE BILL FAVORABLY, S.
REP. NO. 396, 80TH CONG., 1ST SESS., BUT THE SENATE ADJOURNED WITHOUT
CONSIDERING THE BILL. 

THE PROPONENTS OF THE BILL AND THE TWO COMMITTEES CONSIDERED IT AS A
CLARIFICATION OF THE ORIGINAL CONGRESSIONAL INTENT AS TO THE MEANING OF
"EX-SERVICEMEN."  IT WAS STATED THAT THE COUNTRY OWES A DEBT OF
GRATITUDE TO THE TEMPORARY COAST GUARD RESERVISTS, "BUT THEY ARE NOT TO
BE CLASSED AS EX-SERVICEMEN, WHO WERE ACTUALLY UPROOTED FROM THEIR
CIVILIAN OCCUPATIONS AND SUBJECTED TO THE RIGORS OF FULL-TIME MILITARY
TRAINING AND COMBAT.  IT IS TO THE LATTER GROUP THAT CONGRESS INTENDED
TO PROVIDE EMPLOYMENT PREFERENCE IN GOVERNMENT SERVICE."  93 CONG. REC.
7315.  THE NEED FOR CLARIFICATION OF SEC. 2 WAS SAID TO BE THE
CONFUSION CREATED BY THE LOWER COURT DECISIONS IN THE INSTANT CASES. 

FN16  SEE S. REP. NO. 907, 78TH CONG., 2D SESS., P. 2; H.R. REP. NO.
1289, 78TH CONG., 2D SESS., P. 3.  THE VETERANS' PREFERENCE ACT DOES
NOT GRANT BENEFITS TO FUTURE PEACETIME VETERANS. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :
















MOGALL V. UNITED STATES, 333 U.S. 424 


NO. 48.  ARGUED OCTOBER 16, 1947.  - DECIDED MARCH 8, 1948.  - 158 F.2D
792, REVERSED. 


THE SELECTIVE SERVICE REGULATIONS IMPOSED NO LEGAL OBLIGATION UPON AN
EMPLOYER OF A REGISTRANT UNDER THE SELECTIVE TRAINING AND SERVICE ACT
TO REPORT TO THE LOCAL DRAFT BOARD FACTS WHICH MIGHT HAVE RESULTED IN
THE REGISTRANT BEING PLACED IN A DIFFERENT DRAFT CLASSIFICATION; AND AN
EMPLOYER'S FAILURE TO MAKE SUCH REPORTS WAS NOT A VIOLATION OF SEC. 11
OF THE ACT.  P. 425. 

MOGALL V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

PETITIONER WAS CONVICTED OF A VIOLATION OF SEC. 11 OF THE SELECTIVE
TRAINING AND SERVICE ACT.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  158
F.2D 792.  THIS COURT GRANTED CERTIORARI.  331 U.S. 797.  REVERSED, P.
425. 

PER CURIAM. 

PETITIONER AND HIS EMPLOYEE, ONE PERNICIARO, WERE JOINTLY INDICTED
AND TRIED ON THE CHARGES CONTAINED IN AN EIGHT-COUNT INDICTMENT.  THE
DEFENDANTS WERE ACQUITTED UNDER COUNTS 1 TO 7, THE FIRST OF WHICH
CHARGED PETITIONER AND PERNICIARO WITH CONSPIRING FOR THE PURPOSE OF
ENABLING PERNICIARO TO EVADE MILITARY SERVICE BY FAILING TO MAKE KNOWN
TO THE DRAFT BOARD FACTS WHICH MIGHT HAVE RESULTED IN PERNICIARO BEING
PLACED IN A DIFFERENT DRAFT CLASSIFICATION.  THE DEFENDANTS WERE
CONVICTED UNDER COUNT 8, HOWEVER, WHICH CHARGED PETITIONER AND
PERNICIARO WITH FAILING TO REPORT FACTS IN WRITING TO THE LOCAL DRAFT
BOARD WHICH MIGHT HAVE RESULTED IN PERNICIARO BEING PLACED IN A
DIFFERENT DRAFT CLASSIFICATION, CONTRARY TO SEC. 11 OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, 54 STAT. 894, 50 U.S.C. SEC. 311 AND
SEC. 626.1(B) OF THE SELECTIVE SERVICE REGULATIONS. 

THE GOVERNMENT NOW CONCEDES THAT THE SELECTIVE SERVICE REGULATIONS
IMPOSED NO LEGAL OBLIGATION UPON PETITIONER, AS AN EMPLOYER OF A
REGISTRANT UNDER THE SELECTIVE TRAINING AND SERVICE ACT, TO MAKE SUCH
REPORTS TO THE LOCAL BOARD.  IT IS ALSO CONCEDED THAT PETITIONER WAS
TRIED AND CONVICTED UPON THE ASSUMPTION THAT HE WAS UNDER SUCH A LEGAL
OBLIGATION.  WE AGREE THAT THE PLAIN LANGUAGE OF THE REGULATION AND THE
RECORD OF THIS CASE SUPPORT THESE CONCLUSIONS. 

THE GOVERNMENT URGES THAT ALTHOUGH THE JUDGMENT OF CONVICTION AGAINST
PETITIONER SHOULD BE REVERSED, THE INDICTMENT SHOULD NOT BE DISMISSED
SINCE THE PROSECUTION MAY WISH TO TRY PETITIONER A SECOND TIME ON THE
CHARGES CONTAINED IN COUNT 8, AS AN AIDER AND ABETTOR. 

THERE IS NO SHOWING OF FACTS SUFFICIENT FOR US TO PASS JUDGMENT ON
THE QUESTION.  ACCORDINGLY, WE INTIMATE NO OPINION ON THE PROPRIETY OF
THIS PROCEDURE OR THE ISSUES WHICH IT MIGHT PRESENT.  SEE SEALFON V.
UNITED STATES, 332 U.S. 575(1948).  THOSE QUESTIONS WILL BE OPEN IN THE
DISTRICT COURT ON OUR REMAND OF THE CAUSE.  REVERSED. 
..END :


















SEABOARD R. CO. V. DANIEL, 333 U.S. 118 


NO. 390.  ARGUED JANUARY 8, 1948.  - DECIDED FEBRUARY 16, 1948.  - 211
S.C. 122, 43 S.E.2D 839, REVERSED. 


IN A RAILROAD REORGANIZATION UNDER SEC. 5 OF THE INTERSTATE COMMERCE
ACT, AS AMENDED BY THE TRANSPORTATION ACT OF 1940, A VIRGINIA
CORPORATION, WITH THE APPROVAL OF THE INTERSTATE COMMERCE COMMISSION,
SUCCEEDED TO THE OWNERSHIP AND OPERATION OF A UNITARY RAILROAD SYSTEM
IN SIX STATES, INCLUDING SOUTH CAROLINA.  IN GRANTING ITS APPROVAL, THE
COMMISSION FOUND THAT, FOR THE CORPORATION TO COMPLY WITH THE LAWS OF
SOUTH CAROLINA FORBIDDING THE OWNERSHIP AND OPERATION OF RAILROADS IN
THE STATE BY FOREIGN CORPORATIONS, WOULD RESULT IN "SUBSTANTIAL DELAY
AND NEEDLESS EXPENSE" AND "WOULD NOT BE CONSISTENT WITH THE PUBLIC
INTEREST."  THE CORPORATION SUED IN THE SUPREME COURT OF SOUTH CAROLINA
TO ENJOIN THE STATE ATTORNEY GENERAL FROM ENFORCING THESE STATE LAWS
AGAINST IT OR COLLECTING THE HEAVY STATUTORY PENALTIES FOR
NONCOMPLIANCE.  HELD: 

1.  THE STATE SUPREME COURT HAD JURISDICTION OF THE SUIT, WITH POWER
TO DETERMINE WHETHER THE COMMISSION'S ORDER EXEMPTED THE CORPORATION
FROM COMPLIANCE WITH THE STATE RAILROAD CORPORATION LAWS AND, IF SO,
WHETHER THE COMMISSION HAD TRANSCENDED ITS STATUTORY AUTHORITY IN
MAKING THE ORDER.  PP. 122-123. 

2.  THE COMMISSION'S ORDER WAS INTENDED TO EXEMPT THE CORPORATION
FROM OBEDIENCE TO THE STATE'S LAWS FORBIDDING FOREIGN CORPORATIONS TO
OWN OR OPERATE RAILROADS IN THE STATE.  P. 124. 

3.  THE COMMISSION WAS AUTHORIZED TO ISSUE SUCH AN ORDER BY SEC. 5 OF
THE INTERSTATE COMMERCE ACT, AS AMENDED BY THE TRANSPORTATION ACT OF
1940.  TEXAS V. UNITED STATES, 292 U.S. 522.  PP. 124-126. 

4.  IT WAS NOT PREVENTED FROM DOING SO BY SEC. 5(11), WHICH FORBIDS
CREATION OF A FEDERAL CORPORATION BUT AUTHORIZES A STATE RAILROAD
CORPORATION TO EXERCISE THE POWERS THEREIN GRANTED IN ADDITION TO THOSE
BESTOWED UPON IT BY THE STATE OF ITS CREATION.  PP. 126-127. 

5.  THE CORPORATION IS ENTITLED TO THE INJUNCTION IT SOUGHT.  P.
127. 

SEABOARD AIR LINE RAILROAD CO. V. DANIEL, ATTORNEY GENERAL, ET AL. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

THE SUPREME COURT OF SOUTH CAROLINA DISMISSED A SUIT BROUGHT THEREIN
BY A VIRGINIA RAILROAD CORPORATION TO ENJOIN THE ATTORNEY GENERAL OF
SOUTH CAROLINA FROM ENFORCING AGAINST IT CERTAIN STATE LAWS FORBIDDING
FOREIGN CORPORATIONS TO OWN OR OPERATE RAILROADS IN THE STATE.  211
S.C. 122, 43 S.E.2D 839.  ON APPEAL TO THIS COURT, REVERSED AND
REMANDED, P. 127. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE CONSTITUTION AND STATUTES OF SOUTH CAROLINA PROVIDE THAT RAILROAD
LINES WITHIN THAT STATE CAN BE OWNED AND OPERATED ONLY BY STATE-CREATED
CORPORATIONS; A RAILROAD CORPORATION CHARTERED ONLY UNDER THE LAWS OF
ANOTHER STATE IS FORBIDDEN UNDER HEAVY PENALTIES TO EXERCISE SUCH
POWERS WITHIN SOUTH CAROLINA.  FN1  THERE IS A WAY, HOWEVER, IN WHICH A
FOREIGN RAILROAD CORPORATION MAY, UNDER SOUTH CAROLINA STATUTES,
INDIRECTLY EXERCISE SOME POWERS OVER ITS SOUTH CAROLINA OPERATIONS.  IT
MAY ORGANIZE A SOUTH CAROLINA SUBSIDIARY.  IN ADDITION, IT MAY, UNDER
SOUTH CAROLINA LAW, CONSOLIDATE THAT CORPORATION WITH ITSELF.  IN THAT
EVENT, SO FAR AS SOUTH CAROLINA STATUTES CAN GOVERN, THE CONSOLIDATED
RESULT WOULD BE A CORPORATION BOTH OF SOUTH CAROLINA AND OF ANOTHER
STATE.  FN2 

IN 1946 THE APPELLANT, SEABOARD AIR LINE RAILROAD COMPANY, WITH THE
APPROVAL OF THE INTERSTATE COMMERCE COMMISSION, SUCCEEDED TO THE
OWNERSHIP AND OPERATION OF A UNITARY RAILROAD SYSTEM WITH 4,200 RAILWAY
MILES IN SIX SOUTHERN STATES.  SEVEN HUNDRED AND THIRTY-SIX MILES OF
ITS LINES TRAVERSE SOUTH CAROLINA CONNECTING WITH ITS LINES IN
ADJOINING STATES.  APPELLANT IS A VIRGINIA CREATED CORPORATION, HAS NO
SOUTH CAROLINA SUBSIDIARY, AND HAS EFFECTED NO CONSOLIDATION WITH A
SOUTH CAROLINA CREATED CORPORATION.  IT IS THEREFORE SUBJECT TO THE
PENALTIES PROVIDED BY SOUTH CAROLINA LAW IF THAT LAW CAN VALIDLY BE
APPLIED TO IT. 

THIS ACTION WAS BROUGHT BY APPELLANT IN THE SOUTH CAROLINA SUPREME
COURT TO ENJOIN THE STATE ATTORNEY GENERAL FROM ATTEMPTING TO COLLECT
THE STATUTORY PENALTIES FROM APPELLANT OR TO ENFORCE THE STATUTORY
PROVISIONS AGAINST IT.  FN3  THE COMPLAINT ALLEGED THE FOLLOWING FACTS,
ABOUT WHICH THERE IS NO SUBSTANTIAL DISPUTE.  APPELLANT APPLIED TO THE
INTERSTATE COMMERCE COMMISSION FOR APPROVAL OF ITS PURCHASE OF THE
RAILWAY SYSTEM PURSUANT TO SEC. 5 OF THE INTERSTATE COMMERCE ACT, AS
AMENDED, 49 U.S.C. SEC. 5.  AFTER NOTICE TO THE GOVERNOR OF SOUTH
CAROLINA AND OTHERS, THE COMMISSION CONDUCTED HEARINGS AND MADE A
REPORT IN WHICH IT FOUND THAT COMPLIANCE BY APPELLANT WITH THE SOUTH
CAROLINA RAILROAD CORPORATION LAWS WOULD RESULT IN "SUBSTANTIAL DELAY
AND NEEDLESS EXPENSE."  IT FURTHER FOUND THAT COMPLIANCE "WOULD NOT BE
CONSISTENT WITH THE PUBLIC INTEREST" - THE CRITERION WHICH SEC. 5
REQUIRED THE COMMISSION TO USE IN PASSING UPON A CHANGE IN OWNERSHIP OR
CONTROL OF A RAILROAD.  THE COMMISSION THEN ENTERED AN ORDER WHICH
AUTHORIZED APPELLANT, AS A VIRGINIA CORPORATION, TO OWN AND OPERATE THE
ENTIRE SYSTEM INCLUDING THE SOUTH CAROLINA MILEAGE.  THE COMPLAINT ALSO
ASSERTED THAT THE ORDER, BY EXPLICIT REFERENCE TO THE COMMISSION
FINDING IN ITS REPORT, AFFIRMATIVELY AUTHORIZED APPELLANT TO OWN AND
OPERATE THE ENTIRE RAILWAY SYSTEM WITHOUT COMPLYING WITH THE SOUTH
CAROLINA RAILROAD CORPORATION LAWS.  FN4 

THE ANSWER TO THE COMPLAINT DID NOT CHALLENGE THE CONSTITUTIONAL
POWER OF CONGRESS TO RELIEVE APPELLANT OF COMPLIANCE WITH SOUTH
CAROLINA'S REQUIREMENTS OF STATE INCORPORATION.  IT TOOK THE POSITION
THAT INSOFAR AS THE COMMISSION ORDER COULD BE INTERPRETED AS AN ATTEMPT
TO OVERRIDE STATE LAWS IN THIS RESPECT IT WAS VOID BECAUSE OUTSIDE THE
SCOPE OF THE COMMISSION'S STATUTORY AUTHORITY.  THE APPELLANT THEN
FILED A DEMURRER ON THE GROUND THAT THE ANSWER AS A MATTER OF LAW
CONSTITUTED NEITHER A DEFENSE NOR A COUNTERCLAIM SINCE IT ADMITTED ALL
ALLEGATIONS OF FACT IN THE COMPLAINT, AND ADVANCED NOTHING MORE THAN
ERRONEOUS LEGAL CONCLUSIONS AS ASSERTED REASONS WHY APPELLANT SHOULD
NOT BE GRANTED THE RELIEF FOR WHICH IT PRAYED. 

NO EVIDENCE WAS TAKEN AND THE STATE SUPREME COURT DECIDED THE CASE ON
THE PLEADINGS.  THAT COURT CONSTRUED THE COMMISSION'S ORDER AS
RELIEVING APPELLANT FROM COMPLIANCE WITH THE STATUTORY AND
CONSTITUTIONAL PROVISIONS IN ISSUE, BUT IT AGREED WITH THE RESPONDENTS
THAT THE COMMISSION LACKED POWER UNDER SEC. 5 TO ENTER SUCH AN ORDER. 
ACCORDINGLY THE STATE SUPREME COURT REVOKED THE TEMPORARY RESTRAINING
ORDER IT HAD PREVIOUSLY ISSUED, DENIED THE REQUESTED INJUNCTION, AND
DISMISSED THE COMPLAINT.  211 S.C. 122, 43 S.E.2D 839.  THE CASE IS
PROPERLY HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE, AS
AMENDED, 28 U.S.C. SEC. 344(A). 

FIRST.  THE COMPLAINT LARGELY RELIED ON AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION AS A BASIS FOR THE RELIEF SOUGHT.  THE ANSWER
QUESTIONED THE VALIDITY AND SCOPE OF THAT ORDER BUT DID NOT SEEK A
DECREE TO SET IT ASIDE OR SUSPEND IT.  FEDERAL DISTRICT COURTS HAVE
EXCLUSIVE JURISDICTION OF SUITS TO ENJOIN, SET ASIDE, ANNUL OR SUSPEND
AN ORDER OF THE COMMISSION.  IN SUCH SUITS THE UNITED STATES IS AN
INDISPENSABLE PARTY.  28 U.S.C. SEC. 46.  ALTHOUGH THE JURISDICTION OF
THE SOUTH CAROLINA SUPREME COURT WAS THERE CONCEDED, AND IS NOT HERE
CHALLENGED, WE THINK IT APPROPRIATE TO PASS UPON IT. 

SO FAR AS THE APPELLANT'S COMPLAINT IS CONCERNED, THIS IS NOT THE
KIND OF ACTION TO "SET ASIDE" A COMMISSION ORDER OF WHICH THE FEDERAL
DISTRICT COURTS HAVE EXCLUSIVE JURISDICTION.  WHILE THE ACTION DOES
INVOLVE THE SCOPE AND VALIDITY OF A COMMISSION ORDER, THE RELIEF
REQUESTED IN THE COMPLAINT WAS THE REMOVAL OF AN OBSTRUCTION TO THE
RAILROAD'S OBEDIENCE TO THE ORDER, NOT ITS SUSPENSION OR ANNULMENT. 
NOR DID THE ANSWER SEEK TO HAVE THE ENFORCEMENT OF THE ORDER ENJOINED,
ALTHOUGH IT DID QUESTION ITS VALIDITY AS A BASIS FOR THE RELIEF SOUGHT
IN THE COMPLAINT. 

THE APPELLANT WAS IN THIS DILEMMA.  FEDERAL LAW REQUIRED IT TO OBEY
THE ORDER SO LONG AS IT REMAINED IN EFFECT; FOR A FAILURE TO ABIDE BY
ITS TERMS SERIOUS FEDERAL PENALTIES COULD BE IMPOSED ON IT.  49 U.S.C.
SECS. 10(1), 16(7), (8), (9), (10).  ON THE OTHER HAND, SOUTH CAROLINA
STATUTES PROVIDED PENALTIES FOR OBEDIENCE TO THE ORDER, WHICH SOUTH
CAROLINA OFFICIALS ASSERTED WERE ENFORCEABLE AGAINST APPELLANT DESPITE
THE COMMISSION'S ORDER.  THERE WAS THUS A BONA FIDE CONTROVERSY BETWEEN
APPELLANT AND THE STATE OFFICIALS OVER THE VALIDITY OF THE ORDER. 
APPELLANT WANTED TO OBEY THE ORDER; THE STATE OFFICIALS INSISTED
APPELLANT MUST OBEY THEIR STATUTES INSTEAD.  FEDERAL DISTRICT COURTS
HAVE NOT BEEN GRANTED SPECIAL JURISDICTION TO REVIEW AND CONFIRM ORDERS
OF THE COMMISSION AT THE SUIT OF RAILROADS WISHING TO OBEY SUCH
ORDERS. 

UNDER THE FOREGOING CIRCUMSTANCES APPELLANT WAS NOT COMPELLED TO WAIT
UNTIL SOMEONE WHO HAD STANDING TO ATTACK THE COMMISSION'S ORDER MIGHT
DECIDE TO SEEK ITS ANNULMENT IN A FEDERAL DISTRICT COURT.  IT PROPERLY
SOUGHT RELIEF FROM A COURT WHICH COULD OBTAIN JURISDICTION OF THE
PARTIES WHOSE REFUSAL TO RECOGNIZE THE ORDER GAVE RISE TO ITS
PREDICAMENT.  AND THE STATE COURT THEN HAD POWER, BECAUSE OF THE ISSUES
RAISED BY THE COMPLAINT AND BECAUSE OF THE RELIEF REQUESTED, TO
DETERMINE WHETHER THE ORDER, PROPERLY INTERPRETED, DID EXEMPT APPELLANT
FROM COMPLIANCE WITH THE STATE RAILROAD CORPORATION LAWS AND, IF SO,
WHETHER THE COMMISSION HAD TRANSCENDED ITS STATUTORY AUTHORITY IN
MAKING THE ORDER.  ILLINOIS CENT. R. CO. V. PUBLIC UTILITIES COMM'N,
245 U.S. 493, 502-505.  SEE LAMBERT RUN COAL CO. V. BALTIMORE & O.R.
CO., 258 U.S. 377, 381-382; CENTRAL NEW ENGLAND R. CO. V. BOSTON & A.R.
CO., 279 U.S. 415, 420-421. 

SECOND.  IT IS HERE CONTENDED THAT THE COMMISSION'S ORDER DID NOT
MANIFEST A CLEAR PURPOSE TO AUTHORIZE THE EXEMPTION OF APPELLANT FROM
OBEDIENCE TO THE STATE'S DOMESTIC CORPORATION POLICY.  WE HAVE NO DOUBT
THAT THE COMMISSION INTENDED ITS ORDER TO HAVE THIS EFFECT.  ITS FINAL
ORDER EXPRESSLY STATED THAT, SUBJECT TO A CONDITION NOT HERE RELEVANT,
IT APPROVED AND AUTHORIZED "THE PURCHASE  ...  AND THE OPERATION" BY
THE APPELLANT OF THE SOUTH CAROLINA AND OTHER RAILROAD PROPERTIES. 
FURTHERMORE, THE COMMISSION DISCUSSED THE SOUTH CAROLINA REQUIREMENTS
IN ITS REPORT AND THEREIN MADE FINDINGS THAT COMPLIANCE BY APPELLANT
WITH THEM "WOULD NOT BE CONSISTENT WITH THE PUBLIC INTEREST."  THESE
REFERENCES WERE MADE TO THE SOUTH CAROLINA PROVISIONS, ACCORDING TO THE
COMMISSION'S REPORT, IN RESPONSE TO THE APPELLANT'S SUGGESTION THAT IT
WOULD "AVOID COMPLICATIONS" IF THE COMMISSION'S REPORT SHOWED "ON ITS
FACE THAT OUR ORDER IS INTENDED TO OVERRIDE THEM." 

THIRD.  RESPONDENTS CONTEND THAT THE COMMISSION LACKED STATUTORY
AUTHORITY TO ENTER AN ORDER WHICH WOULD PERMIT A VIRGINIA CORPORATION
TO OPERATE THESE RAILROAD LINES IN AND THROUGH SOUTH CAROLINA CONTRARY
TO THAT STATE'S CONSTITUTIONAL AND LEGISLATIVE POLICY.  THEY POINT TO
THE BROAD POWERS STATES HAVE ALWAYS EXERCISED IN EXCLUDING FOREIGN
CORPORATIONS AND IN ADMITTING THEM WITHIN THEIR BORDERS UPON
CONDITIONS.  THEY ALSO EMPHASIZE THE IMPORTANCE OF THIS REGULATORY
POWER TO THE STATES, AND URGE THAT, IN THE ABSENCE OF EXPRESS LANGUAGE
REQUIRING IT, SEC. 5 SHOULD BE CONSTRUED NEITHER TO RESTRICT THAT STATE
POWER NOR TO AUTHORIZE THE COMMISSION TO OVERRIDE STATE ENACTMENTS. 
RECOGNIZING THE FORCE OF THESE ARGUMENTS IN GENERAL, WE NOTE THE
FOLLOWING CIRCUMSTANCES WHICH RENDER THEM INAPPLICABLE IN THIS CASE. 

CONGRESS HAS LONG MADE THE MAINTENANCE AND DEVELOPMENT OF AN
ECONOMICAL AND EFFICIENT RAILROAD SYSTEM A MATTER OF PRIMARY NATIONAL
CONCERN.  ITS LEGISLATION MUST BE READ WITH THIS PURPOSE IN MIND.  IN
KEEPING WITH THIS PURPOSE CONGRESS HAS OFTEN RECOGNIZED THAT THE
NATION'S RAILROADS SHOULD HAVE SOUND CORPORATE AND FINANCIAL STRUCTURES
AND HAS TAKEN APPROPRIATE STEPS TO THIS END.  THE PURCHASE OF THIS VERY
RAILROAD BY APPELLANT RESULTED FROM EXTENSIVE REORGANIZATION
PROCEEDINGS CONDUCTED BY THE INTERSTATE COMMERCE COMMISSION AND FEDERAL
DISTRICT COURTS IN ACCORDANCE WITH CONGRESSIONAL ENACTMENTS APPLICABLE
TO RAILROADS.  IN FURTHERANCE OF THIS CONGRESSIONAL POLICY THESE
AGENCIES APPROVED REORGANIZATION PLANS WHICH CALLED FOR THE PURCHASE
AND OPERATION OF THESE PROPERTIES, INCLUDING THE PORTION IN SOUTH
CAROLINA, BY APPELLANT, AS A VIRGINIA CORPORATION. 

THIS COURT HAS PREVIOUSLY APPROVED A COMMISSION ORDER ENTERED IN A
SEC. 5 CONSOLIDATION PROCEEDING WHICH GRANTED A RAILROAD RELIEF FROM
STATE LAWS ANALOGOUS TO THE STATE REQUIREMENTS HERE.  TEXAS V. UNITED
STATES, 292 U.S. 522(1934).  MOST OF THE REASONS WHICH JUSTIFIED THE
COMMISSION'S ORDER IN THAT CASE ARE EQUALLY APPLICABLE HERE. 
FURTHERMORE, SINCE THAT CASE WAS DECIDED CONGRESS HAS GIVEN ADDITIONAL
PROOF OF ITS PURPOSE TO GRANT ADEQUATE POWER TO THE COMMISSION TO
OVERRIDE STATE LAWS WHICH MAY INTERFERE WITH EFFICIENT AND ECONOMICAL
RAILROAD OPERATION.  BY SEC. 5(11) OF THE INTERSTATE COMMERCE ACT, AS
AMENDED BY THE TRANSPORTATION ACT OF 1940, 54 STAT. 908, 49 U.S.C. SEC.
5(11), CONGRESS GRANTED THE COMMISSION "EXCLUSIVE AND PLENARY"
AUTHORITY IN REFUSING OR APPROVING RAILROAD CONSOLIDATIONS, MERGERS,
ACQUISITIONS, ETC.  THE BREADTH OF THIS GRANT OF POWER CAN BE
UNDERSTOOD ONLY BY REFERENCE TO SEC. 5(2)(B) WHICH AUTHORIZES THE
COMMISSION TO CONDITION ITS APPROVAL UPON "SUCH TERMS AND CONDITIONS
AND SUCH MODIFICATIONS AS IT SHALL FIND TO BE JUST AND REASONABLE." 
ALL OF THIS POWER CAN BE EXERCISED IN ACCORDANCE WITH WHAT THE
COMMISSION MAY FIND TO BE "CONSISTENT WITH THE PUBLIC INTEREST."  THE
PURCHASER OF RAILROAD PROPERTY WITH COMMISSION APPROVAL IS AUTHORIZED
BY SEC. 5(11) "TO OWN AND OPERATE ANY PROPERTIES  ...  ACQUIRED THROUGH
SAID TRANSACTION WITHOUT INVOKING ANY APPROVAL UNDER STATE AUTHORITY,"
AND SUCH AN APPROVED OWNER, ACCORDING TO THAT PARAGRAPH, IS "RELIEVED
FROM THE OPERATION OF THE ANTITRUST LAWS AND OF ALL OTHER RESTRAINTS,
LIMITATIONS, AND PROHIBITIONS OF LAW, FEDERAL, STATE, OR MUNICIPAL,
INSOFAR AS MAY BE NECESSARY TO ENABLE THEM TO CARRY INTO EFFECT THE
TRANSACTION SO APPROVED  ...  AND TO HOLD, MAINTAIN, AND OPERATE ANY
PROPERTIES  ...  ACQUIRED THROUGH SUCH TRANSACTION." 

THIS LANGUAGE VERY CLEARLY REPOSES POWER IN THE COMMISSION TO EXEMPT
RAILROADS UNDER A SEC. 5 PROCEEDING FROM STATE LAWS WHICH BAR THEM FROM
OPERATING IN THE STATE OR IMPOSE CONDITIONS UPON SUCH OPERATION.  THE
STATE COURT NEVERTHELESS THOUGHT THAT THE LAST SENTENCE OF SEC. 5(11)
NEGATIVED A CONGRESSIONAL PURPOSE TO EMPOWER THE COMMISSION TO RELIEVE
RAILROADS FROM STATE LAWS SUCH AS SOUTH CAROLINA'S.  THAT SENTENCE
READS:  "NOTHING IN THIS SECTION SHALL BE CONSTRUED TO CREATE OR
PROVIDE FOR THE CREATION, DIRECTLY OR INDIRECTLY, OF A FEDERAL
CORPORATION, BUT ANY POWER GRANTED BY THIS SECTION TO ANY CARRIER OR
OTHER CORPORATION SHALL BE DEEMED TO BE IN ADDITION TO AND IN
MODIFICATION OF ITS POWERS UNDER ITS CORPORATE CHARTER OR UNDER THE
LAWS OF ANY STATE."  WE SEE NOTHING IN THIS SENTENCE THAT DETRACTS FROM
THE BROAD POWERS GRANTED THE COMMISSION BY SEC. 5.  IN FACT, THE
LANGUAGE OF THE SENTENCE APPEARS TO SUPPORT THE COMMISSION'S POWER HERE
EXERCISED.  ALTHOUGH THE SENTENCE BARS CREATION OF A FEDERAL
CORPORATION, IT CLEARLY AUTHORIZES A RAILROAD CORPORATION TO EXERCISE
THE POWERS THEREIN GRANTED OVER AND ABOVE THOSE BESTOWED UPON IT BY THE
STATE OF ITS CREATION.  THESE FEDERALLY CONFERRED POWERS CAN BE
EXERCISED IN THE SAME MANNER AS THOUGH THEY HAD BEEN GRANTED TO A
FEDERALLY CREATED CORPORATION.  SEE CALIFORNIA V. CENTRAL PACIFIC R.
CO., 127 U.S. 1, 38, 40-45.  HERE, JUST AS A FEDERALLY CREATED RAILROAD
CORPORATION COULD FOR FEDERAL PURPOSES OPERATE IN SOUTH CAROLINA, SO
CAN THIS VIRGINIA CORPORATION EXERCISE ITS FEDERALLY GRANTED POWER TO
OPERATE IN THAT STATE.    OTHER ARGUMENTS OF RESPONDENT HAVE BEEN
CONSIDERED AND FOUND TO BE WITHOUT MERIT.  APPELLANT IS ENTITLED TO THE
INJUNCTION IT SOUGHT. 

THE JUDGMENT OF THE SOUTH CAROLINA SUPREME COURT DENYING THE
INJUNCTION AND DISMISSING THE COMPLAINT IS REVERSED, AND THE CAUSE IS
REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  S.C. CONST. ART. 9, SEC. 8; S.C. CODE ANN. SEC. 7784(1942). 
VIOLATIONS ARE PUNISHABLE BY FINES OF $500 FOR EACH COUNTY IN WHICH THE
RAILROAD OPERATES.  APPARENTLY EACH DAY'S OPERATION OF THE RAILROAD
CONSTITUTES A SEPARATE OFFENSE.  THE APPELLANT IN THIS SUIT OPERATES IN
30 SOUTH CAROLINA COUNTIES. 

FN2  S.C. CONST. ART. 9, SEC. 8; S.C. CODE ANN. SECS. 7777, 7778,
7779, 7785, 7789(1942).  SEE GERATY V. ATLANTIC COAST LINE R. CO., 80
S.C. 355, 361, 60 S.E. 936, 937. 

FN3  THE APPELLANT ALSO PRAYED FOR A MANDAMUS TO COMPEL THE SECRETARY
OF STATE TO ACCEPT AND FILE PAPERS AND DOCUMENTS TENDERED BY APPELLANT
SEEKING AUTHORITY TO DO BUSINESS IN THE STATE AS A FOREIGN CORPORATION
UNDER OTHER SOUTH CAROLINA STATUTES.  THAT PHASE OF THE CASE IS NOT
PRESSED HERE. 

FN4  THE COMPLAINT ALSO ALLEGED, AND IT IS ARGUED HERE, THAT THE
STATE CONSTITUTIONAL AND STATUTORY PROVISIONS IMPOSED BURDENS ON THIS
INTERSTATE RAILROAD IN VIOLATION OF THE COMMERCE CLAUSE OF THE
CONSTITUTION OF THE UNITED STATES.  THE VIEW WE TAKE MAKES IT
UNNECESSARY FOR US TO PASS ON THIS CONTENTION. 
..END :




















FUNK BROS. SEED CO. V. KALO CO., 333 U.S. 127 


NO. 280.  ARGUED JANUARY 13, 1948.  - DECIDED FEBRUARY 16, 1948.  - 161
F.2D 981, REVERSED. 


1.  CERTAIN PRODUCT CLAIMS OF BOND PATENT NO. 2,200,532, ON CERTAIN
MIXED CULTURES OF ROOT-NODULE BACTERIA CAPABLE OF INOCULATING THE SEEDS
OF LEGUMINOUS PLANTS BELONGING TO SEVERAL CROSS-INOCULATION GROUPS,
HELD INVALID FOR WANT OF INVENTION.  PP. 128-132. 

2.  DISCOVERY OF THE FACT THAT CERTAIN STRAINS OF EACH SPECIES OF
THESE BACTERIA CAN BE MIXED WITHOUT HARMFUL EFFECT ON THE PROPERTIES OF
EITHER IS NOT PATENTABLE, SINCE IT IS NO MORE THAN THE DISCOVERY OF A
PHENOMENON OF NATURE.  P. 131. 

3.  THE APPLICATION OF THIS NEWLY-DISCOVERED NATURAL PRINCIPLE TO THE
PROBLEM OF PACKAGING INOCULANTS WAS NOT INVENTION OR DISCOVERY WITHIN
THE MEANING OF THE PATENT LAWS.  PP. 131-132. 

FUNK BROTHERS SEED CO. V. KALO INOCULANT CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

IN A PATENT INFRINGEMENT SUIT, THE DISTRICT COURT HELD CERTAIN
PRODUCT CLAIMS INVALID FOR WANT OF INVENTION.  THE CIRCUIT COURT OF
APPEALS REVERSED.  161 F.2D 981.  THIS COURT GRANTED CERTIORARI.  332
U.S. 755.  REVERSED, P. 132. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A PATENT INFRINGEMENT SUIT BROUGHT BY RESPONDENT.  THE CHARGE
OF INFRINGEMENT IS LIMITED TO CERTAIN PRODUCT CLAIMS  FN1  OF PATENT
NO. 2,200,532 ISSUED TO BOND ON MAY 14, 1940.  PETITIONER FILED A
COUNTERCLAIM ASKING FOR A DECLARATORY JUDGMENT THAT THE ENTIRE PATENT
BE ADJUDGED INVALID.  FN2  THE DISTRICT COURT HELD THE PRODUCT CLAIMS
INVALID FOR WANT OF INVENTION AND DISMISSED THE COMPLAINT.  IT ALSO
DISMISSED THE COUNTERCLAIM.  BOTH PARTIES APPEALED.  THE CIRCUIT COURT
OF APPEALS REVERSED, HOLDING THAT THE PRODUCT CLAIMS WERE VALID AND
INFRINGED AND THAT THE COUNTERCLAIM SHOULD NOT HAVE BEEN DISMISSED. 
161 F.2D 981.  THE QUESTION OF VALIDITY IS THE ONLY QUESTION PRESENTED
BY THIS PETITION FOR CERTIORARI. 

THROUGH SOME MYSTERIOUS PROCESS LEGUMINOUS PLANTS ARE ABLE TO TAKE
NITROGEN FROM THE AIR AND FIX IT IN THE PLANT FOR CONVERSION TO ORGANIC
NITROGENOUS COMPOUNDS.  THE ABILITY OF THESE PLANTS TO FIX NITROGEN
FROM THE AIR DEPENDS ON THE PRESENCE OF BACTERIA OF THE GENUS RHIZOBIUM
WHICH INFECT THE ROOTS OF THE PLANT AND FORM NODULES ON THEM.  THESE
ROOT-NODULE BACTERIA OF THE GENUS RHIZOBIUM FALL INTO AT LEAST SIX
SPECIES.  NO ONE SPECIES WILL INFECT THE ROOTS OF ALL SPECIES OF
LEGUMINOUS PLANTS.  BUT EACH WILL INFECT WELL-DEFINED GROUPS OF THOSE
PLANTS.  FN3  EACH SPECIES OF ROOT-NODULE BACTERIA IS MADE UP OF
DISTINCT STRAINS WHICH VARY IN EFFICIENCY.  METHODS OF SELECTING THE
STRONG STRAINS AND OF PRODUCING A BACTERIAL CULTURE FROM THEM HAVE LONG
BEEN KNOWN.  THE BACTERIA PRODUCED BY THE LABORATORY METHODS OF CULTURE
ARE PLACED IN A POWDER OR LIQUID BASE AND PACKAGED FOR SALE TO AND USE
BY AGRICULTURISTS IN THE INOCULATION OF THE SEEDS OF LEGUMINOUS
PLANTS.  THIS ALSO HAS LONG BEEN WELL KNOWN. 

IT WAS THE GENERAL PRACTICE, PRIOR TO THE BOND PATENT, TO MANUFACTURE
AND SELL INOCULANTS CONTAINING ONLY ONE SPECIES OF ROOT-NODULE
BACTERIA.  THE INOCULANT COULD THEREFORE BE USED SUCCESSFULLY ONLY IN
PLANTS OF THE PARTICULAR CROSS-INOCULATION GROUP CORRESPONDING TO THIS
SPECIES.  THUS IF A FARMER HAD CROPS OF CLOVER, ALFALFA, AND SOY BEANS
HE WOULD HAVE TO USE THREE SEPARATE INOCULANTS N4.  THERE HAD BEEN A
FEW MIXED CULTURES FOR FIELD LEGUMES.  BUT THEY HAD PROVED GENERALLY
UNSATISFACTORY BECAUSE THE DIFFERENT SPECIES OF THE RHIZOBIA BACTERIA
PRODUCED AN INHIBITORY EFFECT ON EACH OTHER WHEN MIXED IN A COMMON
BASE, WITH THE RESULT THAT THEIR EFFICIENCY WAS REDUCED.  HENCE IT HAD
BEEN ASSUMED THAT THE DIFFERENT SPECIES WERE MUTUALLY INHIBITIVE.  BOND
DISCOVERED THAT THERE ARE STRAINS OF EACH SPECIES OF ROOT-NODULE
BACTERIA WHICH DO NOT EXERT A MUTUALLY INHIBITIVE EFFECT ON EACH
OTHER.  HE ALSO ASCERTAINED THAT THOSE MUTUALLY NON-INHIBITIVE STRAINS
CAN, BY CERTAIN METHODS OF SELECTION AND TESTING, BE ISOLATED AND USED
IN MIXED CULTURES.  THUS HE PROVIDED A MIXED CULTURE OF RHIZOBIA
CAPABLE OF INOCULATING THE SEEDS OF PLANTS BELONGING TO SEVERAL CROSS
INOCULATION GROUPS.  IT IS THE PRODUCT CLAIMS WHICH DISCLOSE THAT MIXED
CULTURE THAT THE CIRCUIT COURT OF APPEALS HAS HELD VALID. 

WE DO NOT HAVE PRESENTED THE QUESTION WHETHER THE METHODS OF
SELECTING AND TESTING THE NON-INHIBITIVE STRAINS ARE PATENTABLE.  WE
HAVE HERE ONLY PRODUCT CLAIMS.  BOND DOES NOT CREATE A STATE OF
INHIBITION OR OF NON-INHIBITION IN THE BACTERIA.  THEIR QUALITIES ARE
THE WORK OF NATURE.  THOSE QUALITIES ARE OF COURSE NOT PATENTABLE.  FOR
PATENTS CANNOT ISSUE FOR THE DISCOVERY OF THE PHENOMENA OF NATURE.  SEE
LE ROY V. TATHAM, 14 HOW.  156, 175.  THE QUALITIES OF THESE BACTERIA,
LIKE THE HEAT OF THE SUN, ELECTRICITY, OR THE QUALITIES OF METALS, ARE
PART OF THE STOREHOUSE OF KNOWLEDGE OF ALL MEN.  THEY ARE
MANIFESTATIONS OF LAWS OF NATURE, FREE TO ALL MEN AND RESERVED
EXCLUSIVELY TO NONE.  HE WHO DISCOVERS A HITHERTO UNKNOWN PHENOMENON OF
NATURE HAS NO CLAIM TO A MONOPOLY OF IT WHICH THE LAW RECOGNIZES.  IF
THERE IS TO BE INVENTION FROM SUCH A DISCOVERY, IT MUST COME FROM THE
APPLICATION OF THE LAW OF NATURE TO A NEW AND USEFUL END.  SEE
TELEPHONE CASES, 126 U.S. 1, 532-533; DEFOREST RADIO CO. V. GENERAL
ELECTRIC CO., 283 U.S. 664, 684-685; MACKAY RADIO & TEL. CO. V. RADIO
CORP., 306 U.S. 86, 94; CAMERON SEPTIC TANK CO. V. SARATOGA SPRINGS,
159 F. 453, 462-463.  THE CIRCUIT COURT OF APPEALS THOUGHT THAT BOND
DID MUCH MORE THAN DISCOVER A LAW OF NATURE, SINCE HE MADE A NEW AND
DIFFERENT COMPOSITION OF NON-INHIBITIVE STRAINS WHICH CONTRIBUTED
UTILITY AND ECONOMY TO THE MANUFACTURE AND DISTRIBUTION OF COMMERCIAL
INOCULANTS.  BUT WE THINK THAT THAT AGGREGATION OF SPECIES FELL SHORT
OF INVENTION WITHIN THE MEANING OF THE PATENT STATUTES. 

DISCOVERY OF THE FACT THAT CERTAIN STRAINS OF EACH SPECIES OF THESE
BACTERIA CAN BE MIXED WITHOUT HARMFUL EFFECT TO THE PROPERTIES OF
EITHER IS A DISCOVERY OF THEIR QUALITIES OF NON-INHIBITION.  IT IS NO
MORE THAN THE DISCOVERY OF SOME OF THE HANDIWORK OF NATURE AND HENCE IS
NOT PATENTABLE.  THE AGGREGATION OF SELECT STRAINS OF THE SEVERAL
SPECIES INTO ONE PRODUCT IS AN APPLICATION OF THAT NEWLY-DISCOVERED
NATURAL PRINCIPLE.  BUT HOWEVER INGENIOUS THE DISCOVERY OF THAT NATURAL
PRINCIPLE MAY HAVE BEEN, THE APPLICATION OF IT IS HARDLY MORE THAN AN
ADVANCE IN THE PACKAGING OF THE INOCULANTS.  EACH OF THE SPECIES OF
ROOT-NODULE BACTERIA CONTAINED IN THE PACKAGE INFECTS THE SAME GROUP OF
LEGUMINOUS PLANTS WHICH IT ALWAYS INFECTED.  NO SPECIES ACQUIRES A
DIFFERENT USE.  THE COMBINATION OF SPECIES PRODUCES NO NEW BACTERIA, NO
CHANGE IN THE SIX SPECIES OF BACTERIA, AND NO ENLARGEMENT OF THE RANGE
OF THEIR UTILITY.  EACH SPECIES HAS THE SAME EFFECT IT ALWAYS HAD.  THE
BACTERIA PERFORM IN THEIR NATURAL WAY.  THEIR USE IN COMBINATION DOES
NOT IMPROVE IN ANY WAY THEIR NATURAL FUNCTIONING.  THEY SERVE THE ENDS
NATURE ORIGINALLY PROVIDED AND ACT QUITE INDEPENDENTLY OF ANY EFFORT OF
THE PATENTEE. 

THERE IS, OF COURSE, AN ADVANTAGE IN THE COMBINATION.  THE FARMER
NEED NOT BUY SIX DIFFERENT PACKAGES FOR SIX DIFFERENT CROPS.  HE CAN
BUY ONE PACKAGE AND USE IT FOR ANY OR ALL OF HIS CROPS OF LEGUMINOUS
PLANTS.  AND, AS RESPONDENT SAYS, THE PACKAGES OF MIXED INOCULANTS ALSO
HOLD ADVANTAGES FOR THE DEALERS AND MANUFACTURERS BY REDUCING INVENTORY
PROBLEMS AND THE LIKE.  BUT A PRODUCT MUST BE MORE THAN NEW AND USEFUL
TO BE PATENTED; IT MUST ALSO SATISFY THE REQUIREMENTS OF INVENTION OR
DISCOVERY.  CUNO ENGINEERING CORP. V. AUTOMATIC DEVICES CORP., 314 U.S.
84, 90, 91, AND CASES CITED; 35 U.S.C. SEC. 31, R.S. SEC. 4886.  THE
APPLICATION OF THIS NEWLY-DISCOVERED NATURAL PRINCIPLE TO THE PROBLEM
OF PACKAGING OF INOCULANTS MAY WELL HAVE BEEN AN IMPORTANT COMMERCIAL
ADVANCE.  BUT ONCE NATURE'S SECRET OF THE NON-INHIBITIVE QUALITY OF
CERTAIN STRAINS OF THE SPECIES OF RHIZOBIUM WAS DISCOVERED, THE STATE
OF THE ART MADE THE PRODUCTION OF A MIXED INOCULANT A SIMPLE STEP. 
EVEN THOUGH IT MAY HAVE BEEN THE PRODUCT OF SKILL, IT CERTAINLY WAS NOT
THE PRODUCT OF INVENTION.  THERE IS NO WAY IN WHICH WE COULD CALL IT
SUCH UNLESS WE BORROWED INVENTION FROM THE DISCOVERY OF THE NATURAL
PRINCIPLE ITSELF.  THAT IS TO SAY, THERE IS NO INVENTION HERE UNLESS
THE DISCOVERY THAT CERTAIN STRAINS OF THE SEVERAL SPECIES OF THESE
BACTERIA ARE NON-INHIBITIVE AND MAY THUS BE SAFELY MIXED IS INVENTION. 
BUT WE CANNOT SO HOLD WITHOUT ALLOWING A PATENT TO ISSUE ON ONE OF THE
ANCIENT SECRETS OF NATURE NOW DISCLOSED.  ALL THAT REMAINS, THEREFORE,
ARE ADVANTAGES OF THE MIXED INOCULANTS THEMSELVES.  THEY ARE NOT
ENOUGH. 

SINCE WE CONCLUDE THAT THE PRODUCT CLAIMS DO NOT DISCLOSE AN
INVENTION OR DISCOVERY WITHIN THE MEANING OF THE PATENT STATUTES, WE DO
NOT CONSIDER WHETHER THE OTHER STATUTORY REQUIREMENTS CONTAINED IN 35
U.S.C. SEC. 31, R.S. SEC. 4886, ARE SATISFIED.  REVERSED. 

FN1  THE PRODUCT CLAIMS IN SUIT ARE 1, 3, 4, 5, 6, 7, 8, 13, AND 14. 
CLAIM 4 IS ILLUSTRATIVE OF THE INVENTION WHICH IS CHALLENGED.  IT READS
AS FOLLOWS: 

"AN INOCULANT FOR LEGUMINOUS PLANTS COMPRISING A PLURALITY OF
SELECTED MUTUALLY NON-INHIBITIVE STRAINS OF DIFFERENT SPECIES OF
BACTERIA OF THE GENUS RHIZOBIUM, SAID STRAINS BEING UNAFFECTED BY EACH
OTHER IN RESPECT TO THEIR ABILITY TO FIX NITROGEN IN THE LEGUMINOUS
PLANT FOR WHICH THEY ARE SPECIFIC." 

FN2  THE PATENT ALSO CONTAINS PROCESS CLAIMS. 

FN3  THE SIX WELL-RECOGNIZED SPECIES OF BACTERIA AND THE
CORRESPONDING GROUPS (CROSS-INOCULATION GROUPS) OF LEGUMINOUS PLANTS
ARE: 

RHIZOBIUM TRIFOLII         RED CLOVER, CRIMSON CLOVER,

             MAMMOTH CLOVER, ALSIKE CLOVER 

RHIZOBIUM MELILOTI         ALFALFA, WHITE OR YELLOW

    SWEET CLOVERS 

RHIZOBIUM PHASEOLI         GARDEN BEANS 

RHIZOBIUM LEGUMINOSARUM    GARDEN PEAS AND VETCH 

RHIZOBIUM LUPINI           LUPINES 

RHIZOBIUM JAPONICUM        SOY BEANS 

FN4  SEE NOTE 3, SUPRA. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

MY UNDERSTANDING OF BOND'S CONTRIBUTION IS THAT PRIOR TO HIS
ATTEMPTS, PACKAGES OF MIXED CULTURES OF INOCULANTS PRESUMABLY
APPLICABLE TO TWO OR MORE DIFFERENT KINDS OF LEGUMES HAD FROM TIME TO
TIME BEEN PREPARED, BUT HAD MET WITH INDIFFERENT SUCCESS.  THE REASONS
FOR FAILURE WERE NOT UNDERSTOOD, BUT THE AUTHORITIES HAD CONCLUDED THAT
IN GENERAL PURE CULTURE INOCULANTS WERE ALONE RELIABLE BECAUSE MIXTURES
WERE INEFFECTIVE DUE TO THE MUTUAL INHIBITION OF THE COMBINED STRAINS
OF BACTERIA.  BOND CONCLUDED THAT THERE MIGHT BE SPECIAL STRAINS WHICH
LACKED THIS MUTUAL INHIBITION, OR WERE AT ALL EVENTS MUTUALLY
COMPATIBLE.  USING TECHNIQUES THAT HAD PREVIOUSLY BEEN DEVELOPED TO
TEST EFFICIENCY IN PROMOTING NITROGEN FIXATION OF VARIOUS BACTERIAL
STRAINS, BOND TESTED SUCH EFFICIENCY OF VARIOUS MIXTURES OF STRAINS. 
HE CONFIRMED HIS NOTION THAT SOME STRAINS WERE MUTUALLY COMPATIBLE BY
FINDING THAT MIXTURES OF THESE COMPATIBLE STRAINS GAVE GOOD NITROGEN
FIXATION IN TWO OR MORE DIFFERENT KINDS OF LEGUMES, WHILE OTHER
MIXTURES OF CERTAIN OTHER STRAINS PROVED MUTUALLY INCOMPATIBLE. 

IF THIS IS A CORRECT ANALYSIS OF BOND'S ENDEAVORS, TWO DIFFERENT
CLAIMS OF ORIGINALITY ARE INVOLVED:  (1) THE IDEA THAT THERE ARE
COMPATIBLE STRAINS, AND (2) THE EXPERIMENTAL DEMONSTRATION THAT THERE
WERE IN FACT SOME COMPATIBLE STRAINS.  INSOFAR AS THE COURT BELOW
CONCLUDED THAT THE PACKAGING OF A PARTICULAR MIXTURE OF COMPATIBLE
STRAINS IS AN INVENTION AND AS SUCH PATENTABLE, I AGREE, PROVIDED NOT
ONLY THAT A NEW AND USEFUL PROPERTY RESULTS FROM THEIR COMBINATION, BUT
ALSO THAT THE PARTICULAR STRAINS ARE IDENTIFIABLE AND ADEQUATELY
IDENTIFIED.  I DO NOT FIND THAT BOND'S COMBINATION OF STRAINS SATISFIES
THESE REQUIREMENTS.  THE STRAINS BY WHICH BOND SECURED COMPATIBILITY
ARE NOT IDENTIFIED AND ARE IDENTIFIABLE ONLY BY THEIR COMPATIBILITY. 

UNLESS I MISCONCEIVE THE RECORD, BOND MAKES NO CLAIM THAT FUNK
BROTHERS USED THE SAME COMBINATION OF STRAINS THAT HE HAD FOUND
MUTUALLY COMPATIBLE.  HE APPEARS TO CLAIM THAT SINCE HE WAS THE
ORIGINATOR OF THE IDEA THAT THERE MIGHT BE MUTUALLY COMPATIBLE STRAINS
AND HAD PRACTICALLY DEMONSTRATED THAT SOME SUCH STRAINS EXIST, EVERYONE
ELSE IS FORBIDDEN TO USE A COMBINATION OF STRAINS WHETHER THEY ARE OR
ARE NOT IDENTICAL WITH THE COMBINATIONS THAT BOND SELECTED AND PACKAGED
TOGETHER.  IT WAS THIS CLAIM THAT, AS I UNDERSTAND IT, THE DISTRICT
COURT FOUND NOT TO BE PATENTABLE, BUT WHICH, IF VALID, HAD BEEN
INFRINGED. 

THE CIRCUIT COURT OF APPEALS DEFINED THE CLAIMS TO "COVER A COMPOSITE
CULTURE IN WHICH ARE INCLUDED A PLURALITY OF SPECIES OF BACTERIA
BELONGING TO THE GENERAL RHIZOBIUM GENUS, CARRIED IN A CONVENTIONAL
BASE."  161 F.2D 981, 983.  BUT THE PHRASE "THE CLAIMS COVER A
COMPOSITE CULTURE" MIGHT MEAN "A PARTICULAR COMPOSITE CULTURE" OR "ANY
COMPOSITE CULTURE."  THE CIRCUIT COURT OF APPEALS SEEMS TO ME TO HAVE
PROCEEDED ON THE ASSUMPTION THAT ONLY "A PARTICULAR COMPOSITE CULTURE"
WAS DEVISED AND PATENTED BY BOND, AND THEN APPLIES IT TO "ANY COMPOSITE
CULTURE" ARRIVED AT BY DELETION OF MUTUALLY INHIBITING STRAINS, BUT
STRAINS WHICH MAY BE QUITE DIFFERENT FROM BOND'S COMPOSITE CULTURE. 

THE CONSEQUENCES OF SUCH A CONCLUSION CALL FOR ITS REJECTION.  ITS
ACCEPTANCE WOULD REQUIRE, FOR INSTANCE IN THE FIELD OF ALLOYS, THAT IF
ONE DISCOVERED A PARTICULAR MIXTURE OF METALS, WHICH WHEN ALLOYED HAD
SOME PARTICULAR DESIRABLE PROPERTIES, HE COULD PATENT NOT MERELY THIS
PARTICULAR MIXTURE BUT THE IDEA OF ALLOYING METALS FOR THIS PURPOSE,
AND THUS EXCLUDE EVERYONE ELSE FROM CONTRIVING SOME OTHER COMBINATION
OF METALS WHICH, WHEN ALLOYED, HAD THE SAME DESIRABLE PROPERTIES.  IN
PATENTING AN ALLOY, I ASSUME THAT BOTH THE QUALITIES OF THE PRODUCT AND
ITS SPECIFIC COMPOSITION WOULD NEED TO BE SPECIFIED.  THE STRAINS THAT
BOND PUT TOGETHER IN THE PRODUCT WHICH HE PATENTED CAN BE SPECIFIED
ONLY BY THE PROPERTIES OF THE MIXTURE.  THE DISTRICT COURT, WHILE
PRAISING BOND'S ACHIEVEMENT, FOUND WANT OF PATENTABILITY.  THE CIRCUIT
COURT OF APPEALS REVERSED THE JUDGMENT OF THE DISTRICT COURT BY USE OF
AN UNDISTRIBUTED MIDDLE - THAT THE CLAIMS COVER A "COMPOSITE CULTURE" -
IN THE SYLLOGISM WHEREBY THEY FOUND PATENTABILITY.    IT ONLY CONFUSES
THE ISSUE, HOWEVER, TO INTRODUCE SUCH TERMS AS "THE WORK OF NATURE" AND
THE "LAWS OF NATURE."  FOR THESE ARE VAGUE AND MALLEABLE TERMS INFECTED
WITH TOO MUCH AMBIGUITY AND EQUIVOCATION.  EVERYTHING THAT HAPPENS MAY
BE DEEMED "THE WORK OF NATURE," AND ANY PATENTABLE COMPOSITE
EXEMPLIFIES IN ITS PROPERTIES "THE LAWS OF NATURE."  ARGUMENTS DRAWN
FROM SUCH TERMS FOR ASCERTAINING PATENTABILITY COULD FAIRLY BE EMPLOYED
TO CHALLENGE ALMOST EVERY PATENT.  ON THE OTHER HAND, THE SUGGESTION
THAT "IF THERE IS TO BE INVENTION FROM SUCH A DISCOVERY, IT MUST COME
FROM THE APPLICATION OF THE LAW OF NATURE TO A NEW AND USEFUL END" MAY
READILY VALIDATE BOND'S CLAIM.  NOR CAN IT BE CONTENDED THAT THERE WAS
NO INVENTION BECAUSE THE COMPOSITE HAS NO NEW PROPERTIES OTHER THAN ITS
INGREDIENTS IN ISOLATION.  BOND'S MIXTURE DOES IN FACT HAVE THE NEW
PROPERTY OF MULTI-SERVICE APPLICABILITY.  MULTI-PURPOSE TOOLS,
MULTIVALENT VACCINES, VITAMIN COMPLEX COMPOSITES, ARE EXAMPLES OF
COMPLEXES WHOSE SOLE NEW PROPERTY IS THE CONJUNCTION OF THE PROPERTIES
OF THEIR COMPONENTS.  SURELY THE COURT DOES NOT MEAN UNWITTINGLY TO
PASS ON THE PATENTABILITY OF SUCH PRODUCTS BY FORMULATING CRITERIA BY
WHICH FUTURE ISSUES OF PATENTABILITY MAY BE PREJUDGED.  IN FINDING
BOND'S PATENT INVALID I HAVE TRIED TO AVOID A FORMULATION WHICH, WHILE
IT WOULD IN FACT JUSTIFY BOND'S PATENT, WOULD LAY THE BASIS FOR DENYING
PATENTABILITY TO A LARGE AREA WITHIN EXISTING PATENT LEGISLATION. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE JACKSON CONCURS,
DISSENTING. 

ON THE GROUNDS STATED BY THE CIRCUIT COURT OF APPEALS THE JUDGMENT
SHOULD BE AFFIRMED. 

WHEN THE PATENTEE DISCOVERED THE EXISTENCE OF CERTAIN STRAINS OF
BACTERIA WHICH, WHEN COMBINED WITH CERTAIN OTHER STRAINS OF BACTERIA,
WOULD INFECT TWO OR MORE LEGUMINOUS PLANTS WITHOUT LOSS OF THEIR
RESPECTIVE NITROGEN-FIXING EFFICIENCIES, AND UTILIZED THIS DISCOVERY BY
SEGREGATING SOME OF THESE MUTUALLY NON-INHIBITIVE STRAINS AND COMBINING
SUCH STRAINS INTO COMPOSITE INOCULANTS, WE AGREE WITH MR. JUSTICE
FRANKFURTER THAT THE COMBINATIONS SO PRODUCED SATISFIED THE STATUTORY
REQUIREMENTS OF INVENTION OR DISCOVERY.  FN1  THESE PRODUCTS WERE A
PROMPT AND SUBSTANTIAL COMMERCIAL SUCCESS, FILLING A LONG-SOUGHT AND
IMPORTANT AGRICULTURAL NEED. 

HOWEVER, WE DO NOT AGREE THAT THE PATENT ISSUED FOR SUCH PRODUCTS IS
INVALID FOR WANT OF A CLEAR, CONCISE DESCRIPTION OF HOW THE
COMBINATIONS WERE MADE AND USED.  THE STATUTORY REQUIREMENT IS THAT THE
INVENTOR OR DISCOVERER - 

"SHALL FILE IN THE PATENT OFFICE A WRITTEN DESCRIPTION OF THE SAME,
AND OF THE MANNER AND PROCESS OF MAKING, CONSTRUCTING, COMPOUNDING, AND
USING IT, IN SUCH FULL, CLEAR, CONCISE, AND EXACT TERMS AS TO ENABLE
ANY PERSON SKILLED IN THE ART OR SCIENCE TO WHICH IT APPERTAINS, OR
WITH WHICH IT IS MOST NEARLY CONNECTED, TO MAKE, CONSTRUCT, COMPOUND,
AND USE THE SAME; AND IN CASE OF A MACHINE, HE SHALL EXPLAIN THE
PRINCIPLE THEREOF, AND THE BEST MODE IN WHICH HE HAS CONTEMPLATED
APPLYING THAT PRINCIPLE, SO AS TO DISTINGUISH IT FROM OTHER INVENTIONS;
AND HE SHALL PARTICULARLY POINT OUT AND DISTINCTLY CLAIM THE PART,
IMPROVEMENT, OR COMBINATION WHICH HE CLAIMS AS HIS INVENTION OR
DISCOVERY.   ...  NO PLANT PATENT SHALL BE DECLARED INVALID ON THE
GROUND OF NONCOMPLIANCE WITH THIS SECTION IF THE DESCRIPTION IS MADE AS
COMPLETE AS IS REASONABLY POSSIBLE."  FN2 

THE COMPLETENESS AND CHARACTER OF THE DESCRIPTION MUST VARY WITH THE
SUBJECT TO BE DESCRIBED.  MACHINES LEND THEMSELVES READILY TO
DESCRIPTIONS IN TERMS OF MECHANICAL PRINCIPLES AND PHYSICAL
CHARACTERISTICS.  ON THE OTHER HAND, IT MAY BE THAT A COMBINATION OF
STRAINS OF BACTERIAL SPECIES, WHICH STRAINS ARE DISTINGUISHED FROM ONE
ANOTHER AND RECOGNIZED IN PRACTICE SOLELY BY THEIR OBSERVED EFFECTS,
CAN BE DEFINABLE REASONABLY ONLY IN TERMS OF THOSE EFFECTS.  IN THE
PRESENT CASE, THE PATENTEE HAS DEFINED THE COMBINATIONS IN TERMS OF
THEIR MUTUALLY INHIBITING AND NON-INHIBITING EFFECTS UPON THEIR
RESPECTIVE ABILITIES TO TAKE FREE NITROGEN FROM THE AIR AND PLACE IT IN
THE SOIL.  THESE COMBINATIONS WERE DISCOVERED BY OBSERVATION OF THESE
EFFECTS - THEY ARE IN PRACTICE IDENTIFIED BY THESE EFFECTS FOR THE
COMMERCIAL USES FOR WHICH THEY ARE MADE.  IT IS THESE EFFECTS THAT
DIFFERENTIATE THEM FROM THE OTHER BACTERIA HERETOFORE GENERALLY
IDENTIFIED ONLY AS COMMON MEMBERS OF THE SAME SPECIES AND NOT
COMMERCIALLY VALUABLE FOR USE WITH LEGUMINOUS PLANTS OF MORE THAN ONE
OF THE GROUPS NAMED IN THE OPINION OF THE COURT.  THE IDENTIFICATION OF
THE STRAINS STATED IN THE PATENT IS THAT WHICH THE PATENTEE USED IN
MAKING THE NOVEL COMBINATIONS OF THEM THAT HAVE BEEN SHOWN TO BE HIGHLY
USEFUL.  THERE APPEARS TO BE NO QUESTION BUT THAT THE PETITIONERS ARE
NOW ABLE TO IDENTIFY AND USE THE STRAINS IN THE MANNER DESCRIBED IN THE
PATENT.  THE RECORD THUS INDICATES THAT THE DESCRIPTION IS SUFFICIENTLY
FULL, CLEAR, CONCISE AND EXACT TO ENABLE PERSONS SKILLED IN THE ART OR
SCIENCE TO WHICH THIS DISCOVERY APPERTAINS OR WITH WHICH IT IS MOST
NEARLY CONNECTED TO MAKE, CONSTRUCT, COMPOUND AND USE THE SAME.  THERE
IS NO SUGGESTION AS TO HOW IT WOULD BE REASONABLY POSSIBLE TO DESCRIBE
THE PATENTED PRODUCT MORE COMPLETELY.  THE PATENT COVERS ALL COMPOSITE
CULTURES OF BACTERIAL STRAINS OF THE SPECIES DESCRIBED WHICH DO NOT
INHIBIT EACH OTHER'S ABILITY TO FIX NITROGEN.  BACTERIOLOGISTS, SKILLED
IN THE APPLICABLE ART, WILL NOT HAVE DIFFICULTY IN SELECTING THE NON
INHIBITIVE STRAINS BY EMPLOYING SUCH STANDARD AND RECOGNIZED LABORATORY
TESTS AS ARE DESCRIBED IN THE APPLICATION FOR THIS PATENT. 

THE STATUTE ITSELF SHOWS THAT CONGRESS HAS RECOGNIZED THE INHERENT
DIFFICULTY PRESENTED.  WHILE THIS PATENT MAY NOT BE TECHNICALLY A
"PLANT PATENT" IN THE PRECISE SENSE IN WHICH THAT TERM IS USED IN THIS
DESCRIPTIONS EXPECTED IN MECHANICAL PATENTS AND PLANT PATENTS OBVIOUSLY
SUPPORT THE POSITION HERE TAKEN.  AN INVENTOR SHOULD NOT BE DENIED A
PATENT UPON AN OTHERWISE PATENTABLE DISCOVERY MERELY BECAUSE THE NATURE
OF THE DISCOVERY DEFIES DESCRIPTION IN CONVENTIONAL TERMS.  TERMS
ORDINARILY UNSUITABLE TO DESCRIBE AND DISTINGUISH PRODUCTS THAT ARE
CAPABLE OF DESCRIPTION AND DISTINCTION BY THEIR APPEARANCE MAY BE THE
MOST APPROPRIATE IN WHICH TO DESCRIBE AND DISTINGUISH OTHER PRODUCTS
THAT ARE NOT REASONABLY POSSIBLE OF IDENTIFICATION BY THEIR APPEARANCE,
BUT WHICH ARE EASILY IDENTIFIED BY THEIR EFFECTS WHEN BEING SOUGHT FOR
OR DESCRIBED BY THOSE SKILLED IN THE ART. 

FN1  R.S. SEC. 4886, AS AMENDED, 46 STAT. 376; 53 STAT. 1212, 35
U.S.C. SEC. 31. 

FN2  R.S. SEC. 4888, AS AMENDED, 38 STAT. 958-959; 46 STAT. 376, 35
U.S.C. SEC. 33. 
..END :

















WOODS V. MILLER CO., 333 U.S. 138 


NO. 486.  ARGUED FEBRUARY 6, 1948.  - DECIDED FEBRUARY 16, 1948.  - 74
F.SUPP.  546, REVERSED. 


1.  TITLE II OF THE HOUSING AND RENT ACT OF 1947, ENACTED AFTER THE
EFFECTIVE DATE OF THE PRESIDENTIAL PROCLAMATION TERMINATING HOSTILITIES
ON DECEMBER 31, 1946, AND LIMITING THE RENT WHICH MAY BE CHARGED FOR
CERTAIN HOUSING ACCOMMODATIONS IN "DEFENSE-RENTAL AREAS," IS A VALID
EXERCISE OF THE WAR POWER OF CONGRESS.  HAMILTON V. KENTUCKY
DISTILLERIES CO., 251 U.S. 146; RUPPERT V. CAFFEY, 251 U.S. 264;
STEWART V. KAHN, 11 WALL.  493.  PP. 141-146. 

2.  THE CONSTITUTIONALITY OF ACTION TAKEN BY CONGRESS DOES NOT DEPEND
ON RECITALS OF THE POWER WHICH IT UNDERTAKES TO EXERCISE; AND THE
LEGISLATIVE HISTORY SHOWS THAT CONGRESS WAS INVOKING ITS WAR POWER TO
COPE WITH A CURRENT CONDITION OF WHICH THE WAR WAS A DIRECT AND
IMMEDIATE CAUSE.  P. 144. 

3.  THE ACT PRESCRIBES ADEQUATE STANDARDS FOR THE GUIDANCE OF
ADMINISTRATIVE ACTION AND DOES NOT UNCONSTITUTIONALLY DELEGATE
LEGISLATIVE POWER.  PP. 144-145. 

4.  BY ITS EXEMPTION OF CERTAIN CLASSES OF HOUSING ACCOMMODATIONS,
THE ACT DOES NOT VIOLATE THE FIFTH AMENDMENT.  P. 145. 

5.  THE FACT THAT THE PROPERTY REGULATED SUFFERS A DECREASE IN VALUE
IS NO MORE FATAL TO THE EXERCISE OF THE WAR POWER THAN IT IS WHERE THE
POLICE POWER IS INVOKED TO THE SAME END.  P. 146. 

WOODS, HOUSING EXPEDITER, V. CLOYD W. MILLER CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF OHIO. 

THE HOUSING EXPEDITER SUED TO ENJOIN VIOLATIONS OF TITLE II OF THE
HOUSING AND RENT ACT OF 1947.  THE DISTRICT COURT DENIED A PERMANENT
INJUNCTION ON THE GROUND THAT THE ACT WAS UNCONSTITUTIONAL.  74
F.SUPP.  546.  ON DIRECT APPEAL TO THIS COURT, REVERSED, P. 146. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON A DIRECT APPEAL, ACT OF AUGUST 24, 1937, 50 STAT.
752, 28 U.S.C. SEC. 349A, FROM A JUDGMENT OF THE DISTRICT COURT HOLDING
UNCONSTITUTIONAL TITLE II OF THE HOUSING AND RENT ACT OF 1947.  61
STAT. 193, 196. 

THE ACT BECAME EFFECTIVE ON JULY 1, 1947, AND THE FOLLOWING DAY THE
APPELLEE DEMANDED OF ITS TENANTS INCREASES OF 40% AND 60% FOR RENTAL
ACCOMMODATIONS IN THE CLEVELAND DEFENSE-RENTAL AREA, AN ADMITTED
VIOLATION OF THE ACT AND REGULATIONS ADOPTED PURSUANT THERETO.  FN1
APPELLANT THEREUPON INSTITUTED THIS PROCEEDING UNDER SEC. 206(B) OF THE
ACT  FN2  TO ENJOIN THE VIOLATIONS.  A PRELIMINARY INJUNCTION ISSUED. 
AFTER A HEARING IT WAS DISSOLVED AND A PERMANENT INJUNCTION DENIED. 

THE DISTRICT COURT WAS OF THE VIEW THAT THE AUTHORITY OF CONGRESS TO
REGULATE RENTS BY VIRTUE OF THE WAR POWER (SEE BOWLES V. WILLINGHAM,
321 U.S. 503) ENDED WITH THE PRESIDENTIAL PROCLAMATION TERMINATING
HOSTILITIES ON DECEMBER 31, 1946,  FN3  SINCE THAT PROCLAMATION
INAUGURATED "PEACE-IN-FACT" THOUGH IT DID NOT MARK TERMINATION OF THE
WAR.  IT ALSO CONCLUDED THAT, EVEN IF THE WAR POWER CONTINUES, CONGRESS
DID NOT ACT UNDER IT BECAUSE IT DID NOT SAY SO, AND ONLY IF CONGRESS
SAYS SO, OR ENACTS PROVISIONS SO IMPLYING, CAN IT BE HELD THAT CONGRESS
INTENDED TO EXERCISE SUCH POWER.  THAT CONGRESS DID NOT SO INTEND, SAID
THE DISTRICT COURT, FOLLOWS FROM THE PROVISION THAT THE HOUSING
EXPEDITER CAN END CONTROLS IN ANY AREA WITHOUT REGARD TO THE OFFICIAL
TERMINATION OF THE WAR,  FN4  AND FROM THE FACT THAT THE PRECEDING
FEDERAL RENT CONTROL LAWS (WHICH WERE CONCEDEDLY EXERCISES OF THE WAR
POWER) WERE NEITHER AMENDED NOR EXTENDED.  THE DISTRICT COURT EXPRESSED
THE FURTHER VIEW THAT RENT CONTROL IS NOT WITHIN THE WAR POWER BECAUSE
"THE EMERGENCY CREATED BY HOUSING SHORTAGE CAME INTO EXISTENCE LONG
BEFORE THE WAR."  IT HELD THAT THE ACT "LACKS IN UNIFORMITY OF
APPLICATION AND DISTINCTLY CONSTITUTES A DELEGATION OF LEGISLATIVE
POWER NOT WITHIN THE GRANT OF CONGRESS" BECAUSE OF THE AUTHORIZATION TO
THE HOUSING EXPEDITER TO LIFT CONTROLS IN ANY AREA BEFORE THE ACT'S
EXPIRATION.  IT ALSO HELD THAT THE ACT IN EFFECT PROVIDES "LOW RENTALS
FOR CERTAIN GROUPS WITHOUT TAKING THE PROPERTY OR COMPENSATING THE
OWNER IN ANY WAY."  SEE 74 F.SUPP.  546. 

WE CONCLUDE, IN THE FIRST PLACE, THAT THE WAR POWER SUSTAINS THIS
LEGISLATION.  THE COURT SAID IN HAMILTON V. KENTUCKY DISTILLERIES CO.,
251 U.S. 146, 161, THAT THE WAR POWER INCLUDES THE POWER "TO REMEDY THE
EVILS WHICH HAVE ARISEN FROM ITS RISE AND PROGRESS" AND CONTINUES FOR
THE DURATION OF THAT EMERGENCY.  WHATEVER MAY BE THE CONSEQUENCES WHEN
WAR IS OFFICIALLY TERMINATED N5, THE WAR POWER DOES NOT NECESSARILY END
WITH THE CESSATION OF HOSTILITIES.  WE RECENTLY HELD THAT IT IS
ADEQUATE TO SUPPORT THE PRESERVATION OF RIGHTS CREATED BY WARTIME
LEGISLATION, FLEMING V. MOHAWK WRECKING & LUMBER CO., 331 U.S. 111. 
BUT IT HAS A BROADER SWEEP.  IN HAMILTON V. KENTUCKY DISTILLERIES CO.,
SUPRA, AND RUPPERT V. CAFFEY, 251 U.S. 264, PROHIBITION LAWS WHICH WERE
ENACTED AFTER THE ARMISTICE IN WORLD WAR I WERE SUSTAINED AS EXERCISES
OF THE WAR POWER BECAUSE THEY CONSERVED MANPOWER AND INCREASED
EFFICIENCY OF PRODUCTION IN THE CRITICAL DAYS DURING THE PERIOD OF
DEMOBILIZATION, AND HELPED TO HUSBAND THE SUPPLY OF GRAINS AND CEREALS
DEPLETED BY THE WAR EFFORT.  THOSE CASES FOLLOWED THE REASONING OF
STEWART V. KAHN, 11 WALL.  493, WHICH HELD THAT CONGRESS HAD THE POWER
TO TOLL THE STATUTE OF LIMITATIONS OF THE STATES DURING THE PERIOD WHEN
THE PROCESS OF THEIR COURTS WAS NOT AVAILABLE TO LITIGANTS DUE TO THE
CONDITIONS OBTAINING IN THE CIVIL WAR. 

THE CONSTITUTIONAL VALIDITY OF THE PRESENT LEGISLATION FOLLOWS A
FORTIORI FROM THOSE CASES.  THE LEGISLATIVE HISTORY OF THE PRESENT ACT
MAKES ABUNDANTLY CLEAR THAT THERE HAS NOT YET BEEN ELIMINATED THE
DEFICIT IN HOUSING WHICH IN CONSIDERABLE MEASURE WAS CAUSED BY THE
HEAVY DEMOBILIZATION OF VETERANS AND BY THE CESSATION OR REDUCTION IN
RESIDENTIAL CONSTRUCTION DURING THE PERIOD OF HOSTILITIES DUE TO THE
ALLOCATION OF BUILDING MATERIALS TO MILITARY PROJECTS.  FN6 SINCE THE
WAR EFFORT CONTRIBUTED HEAVILY TO THAT DEFICIT, CONGRESS HAS THE POWER
EVEN AFTER THE CESSATION OF HOSTILITIES TO ACT TO CONTROL THE FORCES
THAT A SHORT SUPPLY OF THE NEEDED ARTICLE CREATED.  IF THAT WERE NOT
TRUE, THE NECESSARY AND PROPER CLAUSE, ART. I, SEC. 8, CL. 18, WOULD BE
DRASTICALLY LIMITED IN ITS APPLICATION TO THE SEVERAL WAR POWERS.  THE
COURT HAS DECLINED TO FOLLOW THAT COURSE IN THE PAST.  HAMILTON V.
KENTUCKY DISTILLERIES CO., SUPRA, PP. 155, 156; RUPPERT V. CAFFEY,
SUPRA, PP. 299, 300.  WE DECLINE TO TAKE IT TODAY.  THE RESULT WOULD BE
PARALYZING.  IT WOULD RENDER CONGRESS POWERLESS TO REMEDY CONDITIONS
THE CREATION OF WHICH NECESSARILY FOLLOWED FROM THE MOBILIZATION OF MEN
AND MATERIALS FOR SUCCESSFUL PROSECUTION OF THE WAR.  SO TO READ THE
CONSTITUTION WOULD BE TO MAKE IT SELF-DEFEATING. 

WE RECOGNIZE THE FORCE OF THE ARGUMENT THAT THE EFFECTS OF WAR UNDER
MODERN CONDITIONS MAY BE FELT IN THE ECONOMY FOR YEARS AND YEARS, AND
THAT IF THE WAR POWER CAN BE USED IN DAYS OF PEACE TO TREAT ALL THE
WOUNDS WHICH WAR INFLICTS ON OUR SOCIETY, IT MAY NOT ONLY SWALLOW UP
ALL OTHER POWERS OF CONGRESS BUT LARGELY OBLITERATE THE NINTH AND THE
TENTH AMENDMENTS AS WELL.  THERE ARE NO SUCH IMPLICATIONS IN TODAY'S
DECISION.  WE DEAL HERE WITH THE CONSEQUENCES OF A HOUSING DEFICIT
GREATLY INTENSIFIED DURING THE PERIOD OF HOSTILITIES BY THE WAR
EFFORT.  ANY POWER, OF COURSE, CAN BE ABUSED.  BUT WE CANNOT ASSUME
THAT CONGRESS IS NOT ALERT TO ITS CONSTITUTIONAL RESPONSIBILITIES.  AND
THE QUESTION WHETHER THE WAR POWER HAS BEEN PROPERLY EMPLOYED IN CASES
SUCH AS THIS IS OPEN TO JUDICIAL INQUIRY.  HAMILTON V. KENTUCKY
DISTILLERIES CO., SUPRA; RUPPERT V. CAFFEY, SUPRA. 

THE QUESTION OF THE CONSTITUTIONALITY OF ACTION TAKEN BY CONGRESS
DOES NOT DEPEND ON RECITALS OF THE POWER WHICH IT UNDERTAKES TO
EXERCISE.  HERE IT IS PLAIN FROM THE LEGISLATIVE HISTORY THAT CONGRESS
WAS INVOKING ITS WAR POWER TO COPE WITH A CURRENT CONDITION OF WHICH
THE WAR WAS A DIRECT AND IMMEDIATE CAUSE.  FN7  ITS JUDGMENT ON THAT
SCORE IS ENTITLED TO THE RESPECT GRANTED LIKE LEGISLATION ENACTED
PURSUANT TO THE POLICE POWER.  SEE BLOCK V. HIRSH, 256 U.S. 135; MARCUS
BROWN CO. V. FELDMAN, 256 U.S. 170; CHASTLETON CORP. V. SINCLAIR, 264
U.S. 543. 

UNDER THE PRESENT ACT THE HOUSING EXPEDITER IS AUTHORIZED TO REMOVE
THE RENT CONTROLS IN ANY DEFENSE-RENTAL AREA IF IN HIS JUDGMENT THE
NEED NO LONGER EXISTS BY REASON OF NEW CONSTRUCTION OR SATISFACTION OF
DEMAND IN OTHER WAYS.  FN8  THE POWERS THUS DELEGATED ARE FAR LESS
EXTENSIVE THAN THOSE SUSTAINED IN BOWLES V. WILLINGHAM, SUPRA, PP. 512
515.  NOR IS THERE HERE A GRANT OF UNBRIDLED ADMINISTRATIVE
DISCRETION.  THE STANDARDS PRESCRIBED PASS MUSTER UNDER OUR DECISIONS. 
SEE BOWLES V. WILLINGHAM, SUPRA, PP. 514-516, AND CASES CITED. 

OBJECTION IS MADE THAT THE ACT BY ITS EXEMPTION OF CERTAIN CLASSES OF
HOUSING ACCOMMODATIONS FN9  VIOLATES THE FIFTH AMENDMENT.  A SIMILAR
ARGUMENT WAS REJECTED UNDER THE FOURTEENTH AMENDMENT WHEN NEW YORK MADE
LIKE EXEMPTIONS UNDER THE RENT-CONTROL STATUTE WHICH WAS HERE FOR
REVIEW IN MARCUS BROWN CO. V. FELDMAN, SUPRA, PP. 195, 198-199. 
CERTAINLY CONGRESS IS NOT UNDER GREATER LIMITATIONS.  IT NEED NOT
CONTROL ALL RENTS OR NONE.  IT CAN SELECT THOSE AREAS OR THOSE CLASSES
OF PROPERTY WHERE THE NEED SEEMS THE GREATEST.  SEE BARCLAY & CO. V.
EDWARDS, 267 U.S. 442, 450.  THIS ALONE IS ADEQUATE ANSWER TO THE
OBJECTION, EQUALLY APPLICABLE TO THE ORIGINAL ACT SUSTAINED IN BOWLES
V. WILLINGHAM, SUPRA, THAT THE PRESENT ACT LACKS UNIFORMITY IN
APPLICATION. 

THE FACT THAT THE PROPERTY REGULATED SUFFERS A DECREASE IN VALUE IS
NO MORE FATAL TO THE EXERCISE OF THE WAR POWER (BOWLES V. WILLINGHAM,
SUPRA, PP. 517, 518) THAN IT IS WHERE THE POLICE POWER IS INVOKED TO
THE SAME END.  SEE BLOCK V. HIRSH, SUPRA.  REVERSED. 

FN1  SECTION 204(B) OF THE ACT PROVIDES THAT "NO PERSON SHALL DEMAND,
ACCEPT, OR RECEIVE ANY RENT FOR THE USE OR OCCUPANCY OF ANY CONTROLLED
HOUSING ACCOMMODATIONS GREATER THAN THE MAXIMUM RENT ESTABLISHED UNDER
THE AUTHORITY OF THE EMERGENCY PRICE CONTROL ACT OF 1942, AS AMENDED,
AND IN EFFECT WITH RESPECT THERETO ON JUNE 30, 1947."  CONTROLLED
HOUSING RENT REGULATION, 12 FED. REG. 4331, CONTAINS SIMILAR
PROVISIONS.  SECS. 2(A), 4(A).  PROVISIONS OF THIS STATUTE AND
REGULATION, NOT HERE MATERIAL, ALLOW ADJUSTMENT OF MAXIMUM RENTALS WHEN
NECESSARY TO CORRECT INEQUITIES AND PERMIT A 15% INCREASE IF NEGOTIATED
BETWEEN LANDLORD AND TENANT AND INCORPORATED IN A LEASE OF A DESIGNATED
TERM. 

FN2  SECTION 206(A) MAKES IT UNLAWFUL "TO OFFER, SOLICIT, DEMAND,
ACCEPT, OR RECEIVE ANY RENT FOR THE USE OR OCCUPANCY OF ANY CONTROLLED
HOUSING ACCOMMODATIONS IN EXCESS OF THE MAXIMUM RENT PRESCRIBED UNDER
TO ANY FEDERAL, STATE, OR TERRITORIAL COURT OF COMPETENT JURISDICTION
FOR AN ORDER ENJOINING "ANY ACT OR PRACTICE WHICH CONSTITUTES OR WILL
CONSTITUTE A VIOLATION OF SUBSECTION (A) OF THIS SECTION." 

FN3  PROCLAMATION 2714, 12 FED. REG. 1.  THAT PROCLAMATION RECOGNIZED
THAT "A STATE OF WAR STILL EXISTS."  ON JULY 25, 1947, ON APPROVING
S.J. RES. 123 TERMINATING CERTAIN WAR STATUTES, THE PRESIDENT ISSUED A
STATEMENT IN WHICH HE DECLARED THAT "THE EMERGENCIES DECLARED BY THE
PRESIDENT ON SEPTEMBER 8, 1939, AND MAY 27, 1941, AND THE STATE OF WAR
CONTINUE TO EXIST, HOWEVER, AND IT IS NOT POSSIBLE AT THIS TIME TO
PROVIDE FOR TERMINATING ALL WAR AND EMERGENCY POWERS." 

FN4  SECTION 204(C) PROVIDES:  "THE HOUSING EXPEDITER IS HEREBY
AUTHORIZED AND DIRECTED TO REMOVE ANY OR ALL MAXIMUM RENTS BEFORE THIS
TITLE CEASES TO BE IN EFFECT, IN ANY DEFENSE-RENTAL AREA, IF IN HIS
JUDGMENT THE NEED FOR CONTINUING MAXIMUM RENTS IN SUCH AREA NO LONGER
EXISTS DUE TO SUFFICIENT CONSTRUCTION OF NEW HOUSING ACCOMMODATIONS OR
WHEN THE DEMAND FOR RENTAL HOUSING ACCOMMODATIONS HAS BEEN OTHERWISE
REASONABLY MET." 

FN5  SEE COMMERCIAL TRUST CO. V. MILLER, 262 U.S. 51, 57. 

FN6  SEE H.R. REP. NO. 317, 80TH CONG., 1ST SESS., PP. 1, 2, 3, 10
11. 

THE REPORT STATES, P. 2: 

"THERE ARE SEVERAL FACTORS, IN ADDITION TO THE NORMAL INCREASE IN
POPULATION, WHICH HAVE CONTRIBUTED TO THE EXISTING HOUSING SHORTAGE. 
THESE INCLUDE DEMOBILIZATION OF A LARGE NUMBER OF VETERANS, SHIFTS IN
POPULATION, LESS INTENSIVE USE OF HOUSING ACCOMMODATIONS, AMOUNT OF NEW
HOUSING CONSTRUCTION, TREND AWAY FROM CONSTRUCTION OF RENTAL UNITS, AND
CHANGE FROM TENANT TO OWNER OCCUPANCY." 

AS TO THE EFFECT OF DEMOBILIZATION OF VETERANS THE REPORT STATES, P.
2: 

"HEAVY DEMOBILIZATION OF MEMBERS OF OUR ARMED FORCES, PARTICULARLY IN
LATE 1945 AND THE FIRST HALF OF 1946, MADE EFFECTIVE AN IMPORTANT
DEMAND FOR HOUSING ACCOMMODATIONS.  IN 1945 AN ESTIMATED 6,279,000
VETERANS OF WORLD WAR II WERE RETURNED TO CIVILIAN LIFE, IN 1946 THE
NUMBER SO RETURNED WAS 5,659,000, AND IN 1947 TO FEBRUARY 28 AN
ADDITIONAL 212,000 VETERANS WERE DEMOBILIZED.  STATISTICS ARE NOT
AVAILABLE AS TO THE NUMBER OF NEW FAMILY UNITS CREATED BY RETURNING
VETERANS BUT UNDOUBTEDLY THE FIGURE IS SUBSTANTIAL AND IN MANY CASES
CREATION OF NEW FAMILY UNITS WAS DELAYED UNTIL THESE VETERANS WERE
RETURNED TO CIVILIAN LIFE.  THE IMPORTANCE AND DELAYED IMPACT OF THE
11,938,000 VETERANS RETURNED TO CIVILIAN LIFE IN 1945 AND 1946 ON AN
ALREADY ACUTE HOUSING SHORTAGE IS READILY APPARENT." 

THE EFFECT OF THE WAR UPON THE CONSTRUCTION OF NEW DWELLING UNITS IS
SHOWN BY THE FOLLOWING TABLE:

        TOTAL NON-FARM DWELLING UNITS CONSTRUCTED 

1937................336,000   1943................350,000 

1938................406,000   1944................169,000 

1939................515,000   1945................247,000 

1940................603,000   1946................776,200 

1941................715,000   1947(11 MONTHS).....799,000 

1942................497,000 

THE FIGURES FOR THE YEARS 1937-1945 INCLUSIVE ARE TAKEN FROM H.R.
REP. NO. 317, SUPRA, P. 3.  THOSE FOR 1946 AND 1947 ARE TAKEN FROM U.S.
BUREAU OF LABOR STATISTICS, CONSTRUCTION, DEC. 1947, P. 4. 

FN7  SEE H.R. REP. NO. 317, SUPRA, NOTE 6, AND STATEMENT OF
REPRESENTATIVE WOLCOTT, CHAIRMAN OF THE HOUSE COMMITTEE ON BANKING AND
CURRENCY WHICH REPORTED THE RENT BILL, 93 CONG. REC. 4395. 

FN8  SEE NOTE 4, SUPRA. 

FN9  SEC. 202(C) PROVIDES:  "THE TERM 'CONTROLLED HOUSING
ACCOMMODATIONS' MEANS HOUSING ACCOMMODATIONS IN ANY DEFENSE-RENTAL
AREA, EXCEPT THAT IT DOES NOT INCLUDE - (1) THOSE HOUSING
ACCOMMODATIONS, IN ANY ESTABLISHMENT WHICH IS COMMONLY KNOWN AS A HOTEL
IN THE COMMUNITY IN WHICH IT IS LOCATED, WHICH ARE OCCUPIED BY PERSONS
WHO ARE PROVIDED CUSTOMARY HOTEL SERVICES SUCH AS MAID SERVICE,
FURNISHING AND LAUNDERING OF LINEN, TELEPHONE AND SECRETARIAL OR DESK
SERVICE, USE AND UPKEEP OF FURNITURE AND FIXTURES, AND BELLBOY SERVICE;
OR (2) ANY MOTOR COURT, OR ANY PART THEREOF; OR ANY TOURIST HOME
SERVING TRANSIENT GUESTS EXCLUSIVELY, OR ANY PART THEREOF; OR (3) ANY
HOUSING ACCOMMODATIONS (A) THE CONSTRUCTION OF WHICH WAS COMPLETED ON
OR AFTER FEBRUARY 1, 1947, OR WHICH ARE ADDITIONAL HOUSING
ACCOMMODATIONS CREATED BY CONVERSION ON OR AFTER FEBRUARY 1, 1947,
EXCEPT THAT CONTRACTS FOR THE RENTAL OF HOUSING ACCOMMODATIONS TO
VETERANS OF WORLD WAR II AND THEIR IMMEDIATE FAMILIES, THE CONSTRUCTION
OF WHICH WAS ASSISTED BY ALLOCATIONS OR PRIORITIES UNDER PUBLIC LAW
388, SEVENTY-NINTH CONGRESS, APPROVED MAY 22, 1946, SHALL REMAIN IN
FULL FORCE AND EFFECT, OR (B) WHICH AT NO TIME DURING THE PERIOD
FEBRUARY 1, 1945, TO JANUARY 31, 1947, BOTH DATES INCLUSIVE, WERE
RENTED (OTHER THAN TO MEMBERS OF THE IMMEDIATE FAMILY OF THE OCCUPANT)
AS HOUSING ACCOMMODATIONS." 

MR. JUSTICE FRANKFURTER CONCURS IN THIS OPINION BECAUSE IT DECIDES NO
MORE THAN WAS DECIDED IN HAMILTON V. KENTUCKY DISTILLERIES CO., 251
U.S. 146, AND JACOB RUPPERT V. CAFFEY, 251 U.S. 264, AND MERELY APPLIES
THOSE DECISIONS TO THE SITUATION NOW BEFORE THE COURT. 

MR. JUSTICE JACKSON, CONCURRING. 

I AGREE WITH THE RESULT IN THIS CASE, BUT THE ARGUMENTS THAT HAVE
BEEN ADDRESSED TO US LEAD ME TO UTTER MORE EXPLICIT MISGIVINGS ABOUT
WAR POWERS THAN THE COURT HAS DONE.  THE GOVERNMENT ASSERTS NO
CONSTITUTIONAL BASIS FOR THIS LEGISLATION OTHER THAN THIS VAGUE,
UNDEFINED AND UNDEFINABLE "WAR POWER." 

NO ONE WILL QUESTION THAT THIS POWER IS THE MOST DANGEROUS ONE TO
FREE GOVERNMENT IN THE WHOLE CATALOGUE OF POWERS.  IT USUALLY IS
INVOKED IN HASTE AND EXCITEMENT WHEN CALM LEGISLATIVE CONSIDERATION OF
CONSTITUTIONAL LIMITATION IS DIFFICULT.  IT IS EXECUTED IN A TIME OF
PATRIOTIC FERVOR THAT MAKES MODERATION UNPOPULAR.  AND, WORST OF ALL,
IT IS INTERPRETED BY JUDGES UNDER THE INFLUENCE OF THE SAME PASSIONS
AND PRESSURES.  ALWAYS, AS IN THIS CASE, THE GOVERNMENT URGES HASTY
DECISION TO FORESTALL SOME EMERGENCY OR SERVE SOME PURPOSE AND PLEADS
THAT PARALYSIS WILL RESULT IF ITS CLAIMS TO POWER ARE DENIED OR THEIR
CONFIRMATION DELAYED. 

PARTICULARLY WHEN THE WAR POWER IS INVOKED TO DO THINGS TO THE
LIBERTIES OF PEOPLE, OR TO THEIR PROPERTY OR ECONOMY THAT ONLY
INDIRECTLY AFFECT CONDUCT OF THE WAR AND DO NOT RELATE TO THE
MANAGEMENT OF THE WAR ITSELF, THE CONSTITUTIONAL BASIS SHOULD BE
SCRUTINIZED WITH CARE. 

I THINK WE CAN HARDLY DENY THAT THE WAR POWER IS AS VALID A GROUND
FOR FEDERAL RENT CONTROL NOW AS IT HAS BEEN AT ANY TIME.  WE STILL ARE
TECHNICALLY IN A STATE OF WAR.  I WOULD NOT BE WILLING TO HOLD THAT WAR
POWERS MAY BE INDEFINITELY PROLONGED MERELY BY KEEPING LEGALLY ALIVE A
STATE OF WAR THAT HAD IN FACT ENDED.  I CANNOT ACCEPT THE ARGUMENT THAT
WAR POWERS LAST AS LONG AS THE EFFECTS AND CONSEQUENCES OF WAR, FOR IF
SO THEY ARE PERMANENT - AS PERMANENT AS THE WAR DEBTS.  BUT I FIND NO
REASON TO CONCLUDE THAT WE COULD FIND FAIRLY THAT THE PRESENT STATE OF
WAR IS MERELY TECHNICAL.  WE HAVE ARMIES ABROAD EXERCISING OUR WAR
POWER AND HAVE MADE NO PEACE TERMS WITH OUR ALLIES, NOT TO MENTION OUR
PRINCIPAL ENEMIES.  I THINK THE CONCLUSION THAT THE WAR POWER HAS BEEN
APPLICABLE DURING THE LIFETIME OF THIS LEGISLATION IS UNAVOIDABLE. 
..END :









FISHER V. HURST, 333 U.S. 147 


NO. 325, MISC. DECIDED FEBRUARY 16, 1948. 


THE ORDER OF THE STATE DISTRICT COURT QUOTED IN THE OPINION DID NOT
DEPART FROM THE MANDATE ISSUED BY THIS COURT IN SIPUEL V. BOARD OF
REGENTS, 332 U.S. 631; AND A MOTION FOR LEAVE TO FILE A PETITION FOR A
WRIT OF MANDAMUS TO COMPEL COMPLIANCE WITH THAT MANDATE IS DENIED.  PP.
147-151. 

FISHER V. HURST, CHIEF JUSTICE, ET AL. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS. 

PER CURIAM. 

PETITIONER MOVES FOR LEAVE TO FILE A PETITION FOR A WRIT OF MANDAMUS
TO COMPEL COMPLIANCE WITH OUR MANDATE ISSUED JANUARY 12, 1948, IN
SIPUEL V. BOARD OF REGENTS, 332 U.S. 631.  WE THERE SAID: 

"THE PETITIONER IS ENTITLED TO SECURE LEGAL EDUCATION AFFORDED BY A
STATE INSTITUTION.  TO THIS TIME, IT HAS BEEN DENIED HER ALTHOUGH
DURING THE SAME PERIOD MANY WHITE APPLICANTS HAVE BEEN AFFORDED LEGAL
EDUCATION BY THE STATE.  THE STATE MUST PROVIDE IT FOR HER IN
CONFORMITY WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
AND PROVIDE IT AS SOON AS IT DOES FOR APPLICANTS OF ANY OTHER GROUP. 
MISSOURI EX REL. GAINES V. CANADA, 305 U.S. 337(1938)." 

PETITIONER STATES THAT ON JANUARY 17, 1948, THE SUPREME COURT OF
OKLAHOMA RENDERED AN OPINION IN WHICH IT WAS SAID: 

"SAID BOARD OF REGENTS IS HEREBY DIRECTED, UNDER THE AUTHORITY
CONFERRED UPON IT BY THE PROVISIONS OF ART. 13-A, CONSTITUTION OF THE
STATE OF OKLAHOMA, AND TITLE 70 O.S. 1941, SECS. 1976, 1979, TO AFFORD
TO PLAINTIFF, AND ALL OTHERS SIMILARLY SITUATED, AN OPPORTUNITY TO
COMMENCE THE STUDY OF LAW AT A STATE INSTITUTION AS SOON AS CITIZENS OF
OTHER GROUPS ARE AFFORDED SUCH OPPORTUNITY, IN CONFORMITY WITH THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION AND WITH THE PROVISIONS OF THE CONSTITUTION AND STATUTES
OF THIS STATE REQUIRING SEGREGATION OF THE RACES IN THE SCHOOLS OF THIS
STATE.  ART. 13, SEC. 3, CONSTITUTION OF OKLAHOMA; 70 O.S. 1941, SECS.
451-457. 

"REVERSED WITH DIRECTIONS TO THE TRIAL COURT TO TAKE SUCH PROCEEDINGS
AS MAY BE NECESSARY TO FULLY CARRY OUT THE OPINION OF THE SUPREME COURT
OF THE UNITED STATES AND THIS OPINION.  THE MANDATE IS ORDERED TO ISSUE
FORTHWITH." 

IT IS FURTHER STATED BY PETITIONER THAT THE DISTRICT COURT OF
CLEVELAND COUNTY OF OKLAHOMA ENTERED AN ORDER ON JANUARY 22, 1948, AS
FOLLOWS: 

"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED BY THIS COURT THAT
UNLESS AND UNTIL THE SEPARATE SCHOOL OF LAW FOR NEGROES, WHICH THE
SUPREME COURT OF OKLAHOMA IN EFFECT DIRECTED THE OKLAHOMA STATE REGENTS
FOR HIGHER EDUCATION TO ESTABLISH 

'WITH ADVANTAGES FOR EDUCATION SUBSTANTIALLY EQUAL TO THE ADVANTAGES
AFFORDED TO WHITE STUDENTS,' 

IS ESTABLISHED AND READY TO FUNCTION AT THE DESIGNATED TIME
APPLICANTS OF ANY OTHER GROUP MAY HEREAFTER APPLY FOR ADMISSION TO THE
FIRST-YEAR CLASS OF THE SCHOOL OF LAW OF THE UNIVERSITY OF OKLAHOMA,
AND IF THE PLAINTIFF HEREIN MAKES TIMELY AND PROPER APPLICATION TO
ENROLL IN SAID CLASS, THE DEFENDANTS, BOARD OF REGENTS OF THE
UNIVERSITY OF OKLAHOMA, ET AL., BE, AND THE SAME ARE HEREBY ORDERED AND
DIRECTED TO EITHER: 

"(1)  ENROLL PLAINTIFF, IF SHE IS OTHERWISE QUALIFIED, IN THE FIRST
YEAR CLASS OF THE SCHOOL OF LAW OF THE UNIVERSITY OF OKLAHOMA, IN WHICH
SCHOOL SHE WILL BE ENTITLED TO REMAIN ON THE SAME SCHOLASTIC BASIS AS
OTHER STUDENTS THEREOF UNTIL SUCH A SEPARATE LAW SCHOOL FOR NEGROES IS
ESTABLISHED AND READY TO FUNCTION, 

"(2)  NOT ENROLL ANY APPLICANT OF ANY GROUP IN SAID CLASS UNTIL SAID
SEPARATE SCHOOL IS ESTABLISHED AND READY TO FUNCTION. 

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT IF SUCH A SEPARATE
LAW SCHOOL IS SO ESTABLISHED AND READY TO FUNCTION, THE DEFENDANTS,
BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA, ET AL., BE, AND THE
SAME ARE HEREBY ORDERED AND DIRECTED TO NOT ENROLL PLAINTIFF IN THE
FIRST-YEAR CLASS OF THE SCHOOL OF LAW OF THE UNIVERSITY OF OKLAHOMA. 

"THE COST OF THIS CASE IS TAXED TO DEFENDANTS. 

"THIS COURT RETAINS JURISDICTION OF THIS CAUSE TO HEAR AND DETERMINE
ANY QUESTION WHICH MAY ARISE CONCERNING THE APPLICATION OF AND
PERFORMANCE OF THE DUTIES PRESCRIBED BY THIS ORDER." 

THE ONLY QUESTION BEFORE US ON THIS PETITION FOR A WRIT OF MANDAMUS
IS WHETHER OR NOT OUR MANDATE HAS BEEN FOLLOWED.  IT IS CLEAR THAT THE
DISTRICT COURT OF CLEVELAND COUNTY DID NOT DEPART FROM OUR MANDATE. 

THE PETITION FOR CERTIORARI IN SIPUEL V. BOARD OF REGENTS, DID NOT
PRESENT THE ISSUE WHETHER A STATE MIGHT NOT SATISFY THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT BY ESTABLISHING A
SEPARATE LAW SCHOOL FOR NEGROES.  ON SUBMISSION, WE WERE CLEAR IT WAS
NOT AN ISSUE HERE.  THE OKLAHOMA SUPREME COURT UPHELD THE REFUSAL TO
ADMIT PETITIONER ON THE GROUND THAT SHE HAD FAILED TO DEMAND
ESTABLISHMENT OF A SEPARATE SCHOOL AND ADMISSION TO IT.  ON REMAND, THE
DISTRICT COURT CORRECTLY UNDERSTOOD OUR DECISION TO HOLD THAT THE EQUAL
PROTECTION CLAUSE PERMITS NO SUCH DEFENSE. 

NOTHING WHICH MAY HAVE TRANSPIRED SINCE THE ORDERS OF THE OKLAHOMA
COURTS WERE ISSUED IS IN THE RECORD BEFORE US, NOR COULD WE CONSIDER IT
ON THIS PETITION FOR WRIT OF MANDAMUS IF IT WERE.  THE OKLAHOMA
DISTRICT COURT HAS RETAINED JURISDICTION TO HEAR AND DETERMINE ANY
QUESTION ARISING UNDER ITS ORDER.  WHETHER OR NOT THE ORDER IS FOLLOWED
OR DISOBEYED SHOULD BE DETERMINED BY IT IN THE FIRST INSTANCE.  THE
MANNER IN WHICH, OR THE METHOD BY WHICH, OKLAHOMA MAY HAVE SATISFIED,
OR COULD SATISFY, THE REQUIREMENTS OF THE MANDATE OF THIS COURT, AS
APPLIED BY THE DISTRICT COURT OF CLEVELAND COUNTY IN ITS ORDER OF
JANUARY 22, 1948, IS NOT BEFORE US. 

MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS IS DENIED. 

MR. JUSTICE MURPHY IS OF THE OPINION THAT A HEARING SHOULD BE HAD IN
ORDER TO DETERMINE WHETHER THE ACTION OF THE OKLAHOMA COURTS SUBSEQUENT
TO THE ISSUANCE OF THIS COURT'S MANDATE CONSTITUTES AN EVASION OF THAT
MANDATE. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I AM UNABLE TO JOIN IN THE COURT'S OPINION OR IN ITS DISPOSITION OF
THE PETITION.  IN MY JUDGMENT NEITHER THE ACTION TAKEN BY THE SUPREME
COURT OF OKLAHOMA NOR THAT OF THE DISTRICT COURT OF CLEVELAND COUNTY,
FOLLOWING UPON THE DECISION AND ISSUANCE OF OUR MANDATE IN NO. 369,
SIPUEL V. BOARD OF REGENTS, 332 U.S. 631, IS CONSISTENT WITH OUR
OPINION IN THAT CAUSE OR THEREFORE WITH OUR MANDATE WHICH ISSUED
FORTHWITH.  FN1 

IT IS POSSIBLE UNDER THOSE ORDERS FOR THE STATE'S OFFICIALS TO
DISPOSE OF PETITIONER'S DEMAND FOR A LEGAL EDUCATION EQUAL TO THAT
AFFORDED TO WHITE STUDENTS BY ESTABLISHING OVERNIGHT A SEPARATE LAW
SCHOOL FOR NEGROES OR TO CONTINUE AFFORDING THE PRESENT ADVANTAGES TO
WHITE STUDENTS WHILE DENYING THEM TO PETITIONER.  THE LATTER COULD BE
DONE EITHER BY EXCLUDING ALL APPLICANTS FOR ADMISSION TO THE FIRST-YEAR
CLASS OF THE STATE UNIVERSITY LAW SCHOOL AFTER THE DATE OF THE DISTRICT
COURT'S ORDER OR, DEPENDING UPON THE MEANING OF THAT ORDER, BY
EXCLUDING SUCH APPLICANTS AND ASKING ALL FIRST-YEAR STUDENTS ENROLLED
PRIOR TO THAT ORDER'S DATE TO WITHDRAW FROM SCHOOL. 

NEITHER OF THOSE COURSES, IN MY OPINION, WOULD COMPLY WITH OUR
MANDATE.  IT PLAINLY MEANT, TO ME AT ANY RATE, THAT OKLAHOMA SHOULD END
THE DISCRIMINATION PRACTICED AGAINST PETITIONER AT ONCE, NOT AT SOME
LATER TIME, NEAR OR REMOTE.  IT ALSO MEANT THAT THIS SHOULD BE DONE, IF
NOT BY EXCLUDING ALL STUDENTS, THEN BY AFFORDING PETITIONER THE
ADVANTAGES OF A LEGAL EDUCATION EQUAL TO THOSE AFFORDED TO WHITE
STUDENTS.  AND IN MY COMPREHENSION THE EQUALITY REQUIRED WAS EQUALITY
IN FACT, NOT IN LEGAL FICTION. 

OBVIOUSLY NO SEPARATE LAW SCHOOL COULD BE ESTABLISHED ELSEWHERE
OVERNIGHT CAPABLE OF GIVING PETITIONER A LEGAL EDUCATION EQUAL TO THAT
AFFORDED BY THE STATE'S LONG-ESTABLISHED AND WELL-KNOWN STATE
UNIVERSITY LAW SCHOOL.  NOR COULD THE NECESSARY TIME BE TAKEN TO CREATE
SUCH FACILITIES, WHILE CONTINUING TO DENY THEM TO PETITIONER, WITHOUT
INCURRING THE DELAY WHICH WOULD CONTINUE THE DISCRIMINATION OUR MANDATE
REQUIRED TO END AT ONCE.  NEITHER WOULD THE STATE COMPLY WITH IT BY
CONTINUING TO DENY THE REQUIRED LEGAL EDUCATION TO PETITIONER WHILE
AFFORDING IT TO ANY OTHER STUDENT, AS IT COULD DO BY EXCLUDING ONLY
STUDENTS IN THE FIRST-YEAR CLASS FROM THE STATE UNIVERSITY LAW SCHOOL. 

SINCE THE STATE COURTS' ORDERS ALLOW THE STATE AUTHORITIES AT THEIR
ELECTION TO PURSUE ALTERNATIVE COURSES, SOME OF WHICH DO NOT COMPLY
WITH OUR MANDATE, I THINK THOSE ORDERS INCONSISTENT WITH IT.
ACCORDINGLY I DISSENT FROM THE COURT'S OPINION AND DECISION IN THIS
CASE. 

FN1  THE MANDATE REVERSED THE OKLAHOMA SUPREME COURT'S JUDGMENT AND
REMANDED THE CAUSE TO IT "FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION." 
..END :












JOHNSON V. UNITED STATES, 333 U.S. 46 


NO. 138.  ARGUED DECEMBER 10, 1947.  - DECIDED FEBRUARY 9, 1948.  - 160
F.2D 789, AFFIRMED IN PART AND REVERSED IN PART. 


1.  WHILE TWO SEAMEN WERE WORKING TOGETHER, A BLOCK HELD BY ONE FELL
AND INJURED THE OTHER.  THE UNCONTRADICTED EVIDENCE WAS SUFFICIENT TO
SUPPORT A FINDING THAT THE INJURED SEAMAN WAS NOT NEGLIGENT.  THERE WAS
NO PROOF AS TO THE ACTUAL CAUSE OF THE ACCIDENT, THOUGH THE TESTIMONY
OF THE FELLOW SEAMAN WAS AVAILABLE AND WAS NOT PUT IN EVIDENCE.  HELD:
THE TRIAL COURT WAS WARRANTED UNDER THE RULE OF RES IPSA LOQUITUR IN
FINDING THAT THE INJURY RESULTED FROM THE NEGLIGENCE OF THE FELLOW
SEAMAN AND THAT THE SHIPOWNER WAS LIABLE UNDER THE JONES ACT OF MARCH
4, 1915, AS AMENDED BY THE MERCHANT MARINE ACT OF 1920.  PP. 46-50. 

2.  THE RULE OF RES IPSA LOQUITUR MEANS THAT THE FACTS OF THE
OCCURRENCE WARRANT THE INFERENCE OF NEGLIGENCE, NOT THAT THEY COMPEL
SUCH AN INFERENCE.  P. 48. 

3.  IT IS APPLICABLE TO THE ACTS OF A FELLOW SERVANT.  P. 49. 

4.  NO ACT NEED BE EXPLICABLE ONLY IN TERMS OF NEGLIGENCE IN ORDER
FOR THE RULE OF RES IPSA LOQUITUR TO BE INVOKED, SINCE THE RULE DEALS
ONLY WITH PERMISSIBLE INFERENCES FROM UNEXPLAINED EVENTS.  P. 49. 

5.  THE JONES ACT OF MARCH 4, 1915, AS AMENDED BY THE MERCHANT MARINE
ACT OF 1920, MAKES THE STANDARD OF LIABILITY OF THE FEDERAL EMPLOYERS'
LIABILITY ACT APPLICABLE TO SUITS BY SEAMEN FOR PERSONAL INJURIES
SUFFERED IN THE COURSE OF THEIR EMPLOYMENT, SO THAT THE SHIPOWNER
BECOMES LIABLE FOR INJURIES TO A SEAMAN RESULTING IN WHOLE OR IN PART
FROM THE NEGLIGENCE OF ANOTHER EMPLOYEE.  P. 49. 

6.  THERE BEING AMPLE EVIDENCE TO SUPPORT THE FINDINGS OF THE TWO
LOWER COURTS THAT A SEAMAN INJURED IN THE COURSE OF HIS EMPLOYMENT HAD
INCURRED NO EXPENSE OR LIABILITY FOR HIS CARE AND SUPPORT AT THE HOME
OF HIS PARENTS, DENIAL OF HIS CLAIM FOR MAINTENANCE AND CURE WHILE
LIVING WITH HIS PARENTS IS SUSTAINED.  P. 50. 

JOHNSON V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

IN A SUIT BY A SEAMAN UNDER THE JONES ACT OF MARCH 4, 1915, AS
AMENDED, THE DISTRICT COURT AWARDED HIM DAMAGES FOR PAIN AND SUFFERING
AND LOSS OF WAGES RESULTING FROM PERSONAL INJURIES SUFFERED IN THE
COURSE OF EMPLOYMENT BUT DENIED RECOVERY FOR MAINTENANCE AND CURE AFTER
A CERTAIN DATE.  THE CIRCUIT COURT OF APPEALS REVERSED THE JUDGMENT FOR
PAIN AND SUFFERING AND LOSS OF WAGES AND AFFIRMED THE DENIAL OF
MAINTENANCE AND CURE.  160 F.2D 789.  THIS COURT GRANTED CERTIORARI. 
332 U.S. 754.  AFFIRMED IN PART AND REVERSED IN PART, P. 50. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE OF THE SEEMING MISAPPLICATION BY THE COURT BELOW OF
JESIONOWSKI V. BOSTON & MAINE R. CO., 329 U.S. 452. 

PETITIONER WAS A SEAMAN ON S.S. MISSION SOLEDAD, A STEAM TANKER OWNED
AND OPERATED BY THE UNITED STATES.  HE WAS ON THE MAIN DECK ROUNDING IN
TWO BLOCKS, AN OPERATION WHICH FOLLOWED THE CRADLING OF THE BOOM.  ONE
BLOCK WAS ATTACHED TO THE OUTER END OF THE BOOM BY A WIRE ROPE.  THE
OTHER BLOCK WAS BEING HELD BY A SHIPMATE, ONE DUDDER, WHO STOOD ABOVE
PETITIONER ON THE MECCANO DECK, A STRUCTURE OF BEAMS WHICH HAD BEEN
ERECTED ON THE MAIN DECK.  PETITIONER WAS TAKING IN THE SLACK BY
PULLING ON THE FREE END OF THE ROPE WHICH RAN THROUGH THE TWO BLOCKS. 
AS HE PULLED ON THE ROPE THE TWO BLOCKS WERE BROUGHT TOGETHER.  WHEN
THAT WAS DONE DUDDER HAD TO WALK FORWARD WITH THE BLOCK HE HELD AT A
RATE OF SPEED CONTROLLED BY PETITIONER.  THE OPERATION WENT FORWARD
SMOOTHLY.  PETITIONER WOULD PULL ON THE ROPE, DUDDER WOULD WALK
FORWARD, AND THEN PETITIONER WOULD STOP TO COIL THE ACCUMULATED FREE
LINE.  PETITIONER AND DUDDER HAD WORKED HARMONIOUSLY, NEITHER ONE
JERKING ON THE LINE NOR INTERFERING WITH THE OTHER'S FUNCTION.  THERE
WAS NO FOULING OF THE LINES; THE ROPE WAS TAUT AND RAN FREE. 

WE HAVE ONLY A PARTIAL ACCOUNT OF HOW THE INJURY TO PETITIONER
OCCURRED.  DUDDER WAS NOT CALLED.  THE ONLY TESTIMONY WE HAVE IS FROM
PETITIONER AND HIS VERSION OF THE EPISODE IS UNCONTRADICTED.  THE BLOCK
WHICH IT WAS DUDDER'S DUTY TO HOLD (AND WHICH WEIGHED 25 OR 30 POUNDS)
WAS PERMITTED TO FALL; IT HIT PETITIONER ON THE HEAD AND CAUSED THE
INJURY FOR WHICH THIS LIBEL IN PERSONAM (SEE 41 STAT. 525, 46 U.S.C.
SEC. 742) WAS FILED UNDER THE JONES ACT, 38 STAT. 1185, AS AMENDED, 41
STAT. 1007, 46 U.S.C. SEC. 688.  DUDDER, AS WE HAVE SAID, WAS STANDING
ABOVE PETITIONER.  IT IS NOT CERTAIN WHY THE BLOCK FELL.  PETITIONER
WAS HIT WITHOUT WARNING.  WHEN HIT, HE WAS BENDING OVER COILING THE
LINE ON THE DECK. 

THE RULE OF RES IPSA LOQUITUR APPLIED IN JESIONOWSKI V. BOSTON &
MAINE R. CO., SUPRA, MEANS THAT "THE FACTS OF THE OCCURRENCE WARRANT
THE INFERENCE OF NEGLIGENCE, NOT THAT THEY COMPEL SUCH AN INFERENCE." 
SWEENEY V. ERVING, 228 U.S. 233, 240.  WE NEED NOT DETERMINE WHAT THE
RESULT WOULD BE IF IT WERE SHOWN THAT PETITIONER WAS PULLING ON THE
ROPE WHEN THE ACCIDENT HAPPENED.  FOR THE UNCONTRADICTED EVIDENCE IS
THAT HE WAS NOT PULLING ON THE ROPE BUT WAS BENDING OVER COILING IT ON
THE DECK.  A MAN WHO IS CAREFUL DOES NOT ORDINARILY DROP A BLOCK ON A
MAN WORKING BELOW HIM.  SOME EXTERNAL FORCE MIGHT CONCEIVABLY COMPEL
HIM TO DO SO.  BUT WHERE, AS HERE, THE INJURED PERSON IS NOT IMPLICATED
(JESIONOWSKI V. BOSTON & MAINE R. CO., SUPRA), THE FALLING OF THE BLOCK
IS ALONE SUFFICIENT BASIS FOR AN INFERENCE THAT THE MAN WHO HELD THE
BLOCK WAS NEGLIGENT.  IN SHORT, DUDDER ALONE REMAINS IMPLICATED, SINCE
ON THE RECORD EITHER HE OR PETITIONER WAS THE CAUSE OF THE ACCIDENT AND
IT APPEARS THAT PETITIONER WAS NOT RESPONSIBLE. 

THE JONES ACT MAKES APPLICABLE TO THESE SUITS THE STANDARD OF
LIABILITY OF THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS
AMENDED, 53 STAT. 1404, 45 U.S.C. SEC. 51.  THUS THE SHIPOWNER BECOMES
LIABLE FOR INJURIES TO A SEAMAN RESULTING IN WHOLE OR IN PART FROM THE
NEGLIGENCE OF ANOTHER EMPLOYEE.  SEE DE ZON V. AMERICAN PRESIDENT
LINES, 318 U.S. 660, 665.  AND THERE IS NO REASON IN LOGIC OR
EXPERIENCE WHY RES IPSA LOQUITUR IS NOT APPLICABLE TO ACTS OF A FELLOW
SERVANT.  SEE LEJEUNE V. GENERAL PETROLEUM CORP., 128 CAL. APP. 404, 18
P.2D 429; JOHNSON V. METROPOLITAN STREET R. CO., 104 MO. APP. 588, 592
593, 78 S.W. 275, 276.  TRUE, THE DOCTRINE FINDS MOST FREQUENT
APPLICATION IN CASES OF INJURIES ARISING FROM INSTRUMENTS OR PROPERTIES
UNDER THE EMPLOYER'S EXCLUSIVE CONTROL.  SAN JUAN LIGHT & TRANSIT CO.
V. REQUENA, 224 U.S. 89; JESIONOWSKI V. BOSTON & MAINE R. CO., SUPRA;
LUKON V. PENNSYLVANIA R. CO., 131 F.2D 327; SWEETING V. PENNSYLVANIA R.
CO., 142 F.2D 611.  INHERENT, HOWEVER, IN THE NEGLIGENCE INFERRED IN
THAT TYPE OF CASE IS AN ACT OR FAILURE TO ACT BY AN INDIVIDUAL.  WHILE
THE ACTS OF NEGLIGENCE UNDERLYING SUCH ACCIDENTS MAY REACH HIGHER INTO
THE MANAGEMENT HIERARCHY THAN THE ONE INVOLVED HERE, THE FEDERAL
EMPLOYERS' LIABILITY ACT COMPELS US TO GO NO HIGHER THAN A FELLOW
SERVANT.  SEE TERMINAL R. ASSN. V. STAENGEL, 122 F.2D 271. 

NO ACT NEED BE EXPLICABLE ONLY IN TERMS OF NEGLIGENCE IN ORDER FOR
THE RULE OF RES IPSA LOQUITUR TO BE INVOKED.  THE RULE DEALS ONLY WITH
PERMISSIBLE INFERENCES FROM UNEXPLAINED EVENTS.  IN THIS CASE THE
DISTRICT COURT FOUND NEGLIGENCE FROM DUDDER'S ACT OF DROPPING THE BLOCK
SINCE ALL THAT PETITIONER WAS DOING AT THE TIME WAS COILING THE ROPE. 
THE CIRCUIT COURT OF APPEALS REVERSED, 160 F.2D 789, FEELING THAT
PETITIONER MIGHT HAVE PULLED THE BLOCK OUT OF DUDDER'S HANDS.  IT
REASONED THAT, ALTHOUGH PETITIONER TESTIFIED HE WAS BENDING OVER
COILING THE ROPE WHEN THE BLOCK HIT HIM, THE CONCUSSION MAY HAVE CAUSED
A LAPSE OF MEMORY WHICH ANTEDATED THE ACTUAL INJURY.  THE INQUIRY,
HOWEVER, IS NOT AS TO POSSIBLE CAUSES OF THE ACCIDENT BUT WHETHER A
SHOWING THAT PETITIONER WAS WITHOUT FAULT AND WAS INJURED BY THE
DROPPING OF THE BLOCK IS THE BASIS OF A FAIR INFERENCE THAT THE MAN WHO
DROPPED THE BLOCK WAS NEGLIGENT.  WE THINK IT IS, FOR HUMAN EXPERIENCE
TELLS US THAT CAREFUL MEN DO NOT CUSTOMARILY DO SUCH AN ACT. 

PETITIONER PRESSES HERE HIS CLAIM FOR MAINTENANCE AND CURE WHICH WAS
REJECTED BY BOTH COURTS BELOW.  HE WAS HOSPITALIZED BY RESPONDENT FOR A
NUMBER OF WEEKS FOLLOWING THE ACCIDENT.  HE WAS THEN FOUND UNFIT FOR
SEA DUTY AND DOCTORS OF THE PUBLIC HEALTH SERVICE RECOMMENDED THAT HE
ENTER VARIOUS GOVERNMENT HOSPITALS.  HE REFUSED AND WENT INSTEAD TO
LIVE ON THE RANCH OF HIS PARENTS.  WE NEED NOT DECIDE WHETHER AN
AGREEMENT BETWEEN PETITIONER AND THE GOVERNMENT DOCTORS FOR OUT-PATIENT
TREATMENT AND REST AT HIS HOME MIGHT BE INFERRED.  CF. REY V. COLONIAL
NAVIGATION CO., 116 F.2D 580; MOYLE V. NATIONAL PETROLEUM TRANSPORT
CORP., 150 F.2D 840.  FOR THERE IS AMPLE EVIDENCE TO SUPPORT THE
FINDINGS OF THE TWO LOWER COURTS THAT PETITIONER HAD INCURRED NO
EXPENSE OR LIABILITY FOR HIS CARE AND SUPPORT AT THE HOME OF HIS
PARENTS.  SEE FIELD V. WATERMAN S.S. CORP., 104 F.2D 849.  ON THAT
ISSUE WE AFFIRM THE CIRCUIT COURT OF APPEALS.  ON THE ISSUE OF
NEGLIGENCE WE REVERSE IT.  SO ORDERED. 

MR. JUSTICE FRANKFURTER DISSENTING IN PART. 

WHAT IS THIS CASE?  IT IS A SUIT BY THE PETITIONER, A SEAMAN, FOR AN
INJURY SUSTAINED WHILE WORKING ON A VESSEL OWNED AND OPERATED BY THE
UNITED STATES.  UNDER EXISTING LAW THE UNITED STATES IS LIABLE ONLY IF
IT FAILED IN ITS DUTY OF EXERCISING REASONABLE CARE IN SAFEGUARDING ITS
EMPLOYEES - THE UNITED STATES IS LIABLE, THAT IS, ONLY IF IT WAS
NEGLIGENT.  AND IT IS UP TO THE PLAINTIFF TO PROVE SUCH NEGLIGENCE. 

WHAT IS THE PLAINTIFF'S CLAIM HERE?  IT IS THAT WHILE THE PETITIONER
AND A FELLOW SEAMAN NAMED DUDDER WERE WORKING TOGETHER IN AN OPERATION
KNOWN AS "ROUNDING IN" BLOCKS TO BRING TWO BLOCKS OF A BLOCK AND TACKLE
TOGETHER, SOMEHOW OR OTHER A BLOCK FELL AND STRUCK THE PETITIONER, WHO
WAS OPERATING ON A DECK BELOW DUDDER, ON THE HEAD.  THE CLAIM IS THAT
THE BLOCK WHICH HIT PETITIONER WAS NEGLIGENTLY RELEASED BY DUDDER AND
THAT THE UNITED STATES IS RESPONSIBLE FOR DUDDER'S NEGLIGENCE.  (THE
"FELLOW SERVANT RULE" IS NOT A DEFENSE UNDER THE JONES ACT WHICH
AUTHORIZES THIS SUIT.  38 STAT. 1185, AS AMENDED, 41 STAT. 1007, 46
U.S.C. SEC. 688.)  THERE WERE NO WITNESSES TO THIS HAPPENING BESIDES
DUDDER AND JOHNSON.  THE ONLY SOURCES OF KNOWLEDGE FOR ASCERTAINING
WHAT ACTUALLY HAPPENED - WHETHER FAULT LAY WITH DUDDER OR JOHNSON OR
WITH NOBODY, AS THE LAW DETERMINES FAULT - WERE THE ACCOUNTS WHICH
DUDDER AND JOHNSON MIGHT FURNISH AND SUCH INFERENCES AS HUMAN
EXPERIENCE COULD REASONABLY DRAW FROM THE OCCURRENCE ITSELF. 

WHAT EVIDENCE DOES THE RECORD DISCLOSE?  OF THE TWO AVAILABLE
WITNESSES ONLY ONE TESTIFIED.  THAT WAS THE PETITIONER.  IT IS ACCURATE
TO STATE, THEREFORE, THAT HIS VERSION OF WHAT IMMEDIATELY PRECEDED THE
INJURY WAS UNCONTRADICTED.  BUT IT IS NO LESS TRUE THAT HE WAS UNABLE
TO FURNISH ANY EVIDENCE BEARING ON THE CAUSE OF THE HAPPENING.  FN1
HIS TESTIMONY HAS NOT ESTABLISHED THAT IT WAS THE CARELESSNESS OF
DUDDER THAT CAUSED THE BLOCK TO FALL OUT OF DUDDER'S HAND RATHER THAN A
CARELESS JERK OF THE ROPE BY HIMSELF WHICH CAUSED SUCH RELEASE.  DUDDER
WAS AVAILABLE AS A WITNESS BUT HE WAS NOT CALLED.  THE UNITED STATES IN
FACT HAD DUDDER'S DEPOSITION TAKEN BEFORE THE TRIAL, AND IT WAS PLACED
AT JOHNSON'S DISPOSAL.  NEITHER PARTY, FOR REASONS OF ITS OWN, CALLED
DUDDER AS A WITNESS OR INTRODUCED HIS DEPOSITION. 

WHAT CONCLUSIONS ARE TO BE DRAWN FROM THE FACTS AS THEY WERE
DEVELOPED AT THE TRIAL?  IT IS NOT THE BUSINESS OF THIS COURT TO
CONDUCT THE TRIAL OF A CASE OR, EVEN WHERE A CASE IS TECHNICALLY OPEN
HERE ON THE FACTS, TO SIT IN INDEPENDENT JUDGMENT ON THE FACTS.  IF A
CASE LIKE THIS IS TO BE ALLOWED TO COME HERE AT ALL, WE SIT IN JUDGMENT
ON THE PROCEEDINGS IN THEIR ENTIRETY.  THIS IS A PROCEEDING IN
ADMIRALTY TRIED BY A JUDGE AND NOT A JURY.  THE TRIAL JUDGE, WHO HEARD
THE TESTIMONY AND WHO WAS IN THE BEST POSSIBLE POSITION TO WEIGH WHAT
HE HEARD AND SAW, DIED BEFORE HE GAVE HIS VIEW OF THE TESTIMONY.  BY
AGREEMENT, THE CAUSE WAS THEN SUBMITTED FOR JUDGMENT BY ANOTHER
DISTRICT JUDGE ON THE BASIS OF THE COLD RECORD.  HE DECIDED FOR THE
PETITIONER.  THE UNITED STATES THEN APPEALED TO THE CIRCUIT COURT OF
APPEALS FOR THE NINTH CIRCUIT.  THREE OTHER JUDGES ON THE BASIS OF THE
SAME DEAD RECORD REVERSED THE DISTRICT JUDGE.  160 F.2D 789.  THE
RESULT IS THAT ON THE ISSUE WHETHER THE UNITED STATES IS LIABLE BECAUSE
ONE OF ITS EMPLOYEES WAS NEGLIGENT - THAT IS, WHETHER DUDDER IN FACT
CARELESSLY LET THE BLOCK SLIP OUT OF HIS HANDS - ONE JUDGE SAID YES,
AND THREE JUDGES SAID NO. 

WHAT IS THE APPLICABLE LAW?  MY BRETHREN SAY THE CIRCUMSTANCES SPEAK
FOR THEMSELVES IN ESTABLISHING DUDDER'S NEGLIGENCE.  THIS MEANS THAT
THE THREE JUDGES BELOW SHOULD HAVE FOUND, AND THIS COURT MUST NOW FIND,
THAT THE RECORD PROVES THAT THE INJURY CAN ONLY BE EXPLAINED BY
DUDDER'S CARELESSNESS - FOR THE PETITIONER, IT DESERVES REPEATING, MUST
HAVE ESTABLISHED DUDDER'S CARELESSNESS IN ORDER TO HOLD THE UNITED
STATES LIABLE.  I AGREE THAT IF THE RULE OF RES IPSA LOQUITUR
DETERMINES THIS CASE, THE SCOPE OF THAT RULE IS FOUND IN SWEENEY V.
ERVING, 228 U.S. 233, REAFFIRMED LAST TERM AS A "DECISION WHICH CUT
THROUGH THE MASS OF VERBIAGE BUILT UP AROUND THE DOCTRINE OF RES IPSA
LOQUITUR."  JESIONOWSKI V. BOSTON & MAINE R. CO., 329 U.S. 452, 457. 
BUT THESE TWO SENTENCES ARE A VITAL PART OF THE SWEENEY CASE:  "RES
IPSA LOQUITUR, WHERE IT APPLIES, DOES NOT CONVERT THE DEFENDANT'S
GENERAL ISSUE INTO AN AFFIRMATIVE DEFENSE.  WHEN ALL THE EVIDENCE IS
IN, THE QUESTION FOR THE JURY IS, WHETHER THE PREPONDERANCE IS WITH THE
PLAINTIFF."  228 U.S. AT 240.  THEREFORE, EVEN IF THE RULE OF RES IPSA
LOQUITUR IS HERE RELEVANT, IT SHOULD NOT BY ITSELF SUSTAIN A FINDING
FOR THE PETITIONER, "FOR THE REASON THAT IN CASES WHERE THAT RULE DOES
APPLY, IT HAS NOT THE EFFECT OF SHIFTING THE BURDEN OF PROOF."  228
U.S. AT 238.  SINCE WE CANNOT TELL FROM THE RECORD HOW THE INJURY TO
THE PETITIONER OCCURRED - IT CERTAINLY WAS NOT ESTABLISHED WHY THE
BLOCK FELL - I CANNOT ESCAPE THE CONCLUSION THAT PETITIONER FAILED TO
SUSTAIN HIS BURDEN OF PROVING BY A FAIR PREPONDERANCE OF THE EVIDENCE
THAT HIS INJURIES WERE ATTRIBUTABLE TO THE RESPONDENT'S NEGLIGENCE. 
CF. THE JESIONOWSKI CASE, SUPRA AT P. 454. 

BUT I DO NOT BELIEVE THAT RES IPSA LOQUITUR IS APPLICABLE HERE.  IT
IS, AFTER ALL, A "RULE OF NECESSITY TO BE INVOKED ONLY WHEN NECESSARY
EVIDENCE IS ABSENT AND NOT READILY AVAILABLE."  SEE COOLEY, TORTS (4TH
ED.)  SEC.  480.  HERE THE EVIDENCE AS TO THE CAUSE OF PETITIONER'S
INJURIES WAS ADMITTEDLY AVAILABLE, AND IT WOULD SEEM TO FOLLOW THAT
SINCE WHAT ACTUALLY HAPPENED COULD HAVE BEEN ADJUDICATED, IT SHOULD
HAVE BEEN ADJUDICATED.  THEREFORE, I WOULD AFFIRM THE JUDGMENT OF THE
COURT BELOW BUT MODIFY ITS MANDATE SO THAT THERE MAY BE A NEW TRIAL ON
THIS ISSUE AND AN ADJUDICATION BASED UPON AN ADEQUATE DETERMINATION. 

WHILE A COURT ROOM IS NOT A LABORATORY FOR THE SCIENTIFIC PURSUIT OF
TRUTH, A TRIAL JUDGE IS SURELY NOT CONFINED TO AN ACCOUNT, OBVIOUSLY
FRAGMENTARY, OF THE CIRCUMSTANCES OF A HAPPENING, HERE THE MEAGRE
TESTIMONY OF JOHNSON, WHEN HE HAS AT HIS COMMAND THE MEANS OF EXPLORING
THEM FULLY, OR AT LEAST MORE FULLY, BEFORE PASSING LEGAL JUDGMENT.  A
TRIAL IS NOT A GAME OF BLIND MAN'S BUFF; AND THE TRIAL JUDGE -
PARTICULARLY IN A CASE WHERE HE HIMSELF IS THE TRIER OF THE FACTS UPON
WHICH HE IS TO PRONOUNCE THE LAW - NEED NOT BLINDFOLD HIMSELF BY
FAILING TO CALL AN AVAILABLE VITAL WITNESS SIMPLY BECAUSE THE PARTIES,
FOR REASONS OF TRIAL TACTICS, CHOOSE TO WITHHOLD HIS TESTIMONY. 
FEDERAL JUDGES ARE NOT REFEREES AT PRIZE-FIGHTS BUT FUNCTIONARIES OF
JUSTICE.  SEE HERRON V. SOUTHERN PACIFIC CO., 283 U.S. 91, 95; QUERCIA
V. UNITED STATES, 289 U.S. 466, 469.  AS SUCH THEY HAVE A DUTY OF
INITIATIVE TO SEE THAT THE ISSUES ARE DETERMINED WITHIN THE SCOPE OF
THE PLEADINGS, NOT LEFT TO COUNSEL'S CHOSEN ARGUMENT.  SEE NEW YORK
CENTRAL R. CO. V. JOHNSON, 279 U.S. 310, 318.  JUST AS A FEDERAL JUDGE
MAY BRING TO HIS AID AN AUDITOR, WITHOUT CONSENT OF THE PARTIES, TO
EXAMINE BOOKS AND PAPERS, HEAR TESTIMONY, CLARIFY THE ISSUES, AND
SUBMIT A REPORT, IN ORDER TO "RENDER POSSIBLE AN INTELLIGENT
CONSIDERATION OF THE CASE BY COURT AND JURY," EX PARTE PETERSON, 253
U.S. 300, 306, AND IN SO DOING HAS THE POWER TO TAX THE EXPENSE AS
COSTS "NECESSARY TO THE TRUE UNDERSTANDING OF THE CAUSE ON BOTH SIDES,"
WHIPPLE V. CUMBERLAND COTTON CO., 3 STORY 84, 86, HE HAS THE POWER TO
CALL AND EXAMINE WITNESSES TO ELICIT THE TRUTH.  SEE GLASSER V. UNITED
STATES, 315 U.S. 60, 82.  HE SURELY HAS THE DUTY TO DO SO BEFORE
RESORTING TO GUESSWORK IN ESTABLISHING LIABILITY FOR FAULT. 

DUDDER'S ACCOUNT OF WHAT HAPPENED SURELY COULD SUPPLEMENT JOHNSON'S
AS A BASIS FOR RECREATING THE EVENTS WHICH LED TO JOHNSON'S INJURY. 
NEITHER PARTY SAW FIT TO USE HIS AVAILABLE TESTIMONY.  INSTEAD OF
ENTERING JUDGMENT FOR THE PARTY WHO HAD THE BURDEN OF PROOF AND DID NOT
MEET IT, THE TRIAL JUDGE SHOULD AT LEAST HAVE CALLED DUDDER AS THE
COURT'S WITNESS.  AS JUDGE SIBLEY OBSERVED IN A CASE WHERE WITNESSES
WHO KNEW WHAT ACTUALLY HAPPENED HAD NOT BEEN CALLED TO TESTIFY:  "WE
THINK THE INTERESTS OF JUSTICE WOULD BE SERVED BY A NEW AND MORE
ORDERLY TRIAL, WHICH CAN EASILY BE MANAGED  ...  WILLIAMS AND BATSON
(THE WITNESSES) CERTAINLY KNOW THE TRUTH OF THE THINGS IN DISPUTE.  IF
NEITHER PARTY WILL RISK CALLING A WITNESS WHO KNOWS IMPORTANT FACTS, IT
IS IN THE POWER OF THE COURT TO CALL AND EXAMINE SUCH A WITNESS, IN THE
INTEREST OF TRUTH AND JUSTICE, ALLOWING BOTH PARTIES THE RIGHT OF CROSS
EXAMINATION AND IMPEACHMENT."  CHALMETTE PETROLEUM CORP. V. CHALMETTE
OIL DISTRIBUTING CO., 143 F.2D 826, 828-9. 

THREE COURTS AND THIRTEEN JUDGES HAVE NOW PASSED ON THIS CASE WHEN IN
GOOD REASON A SITUATION LIKE THIS OUGHT NEVER TO GET INTO COURT AT
ALL.  THE CRUX OF THE DIFFICULTY IS THAT AN INDUSTRIAL INJURY SUCH AS
THE PETITIONER SUFFERED IS AS TO INTERSTATE RAILROAD EMPLOYEES AND
SEAMEN STILL DETERMINED BY THE ARCHAIC LAW OF NEGLIGENCE INSTEAD OF BY
A JUST SYSTEM OF WORKMEN'S COMPENSATION.  OCCURRENCES LIKE THE ONE NOW
IN CONTROVERSY ARE INHERENT IN INDUSTRIAL EMPLOYMENT AND TO MAKE
LIABILITY DEPEND ON A FINDING OF "NEGLIGENCE" IS TO PURSUE UNREALITY. 
ENGLAND ABOLISHED NEGLIGENCE AS THE BASIS OF LIABILITY FIFTY YEARS
AGO.  THE STATES, LONG LAGGARDS IN MAKING LAW CONFORM TO THE
ACTUALITIES OF INDUSTRY, HAVE NOW, WITH ONLY A SINGLE EXCEPTION,
SUPPLANTED THE OUTMODED LIABILITY FOR FAULT BY A RATIONAL SYSTEM OF
WORKMEN'S COMPENSATION LAWS, AND CONGRESS HAS ENACTED COMPENSATION LAWS
FOR THE DISTRICT OF COLUMBIA, FEDERAL EMPLOYEES, AND FOR LONGSHOREMEN
AND HARBOR WORKERS.  "IT IS REASONABLE THAT THE PUBLIC SHOULD PAY THE
WHOLE COST OF PRODUCING WHAT IT WANTS AND A PART OF THAT COST IS THE
PAIN AND MUTILATION INCIDENT TO PRODUCTION."  HOLMES, J., IN ARIZONA
EMPLOYERS' LIABILITY CASES, 250 U.S. 400, 433.  BUT SO LONG AS CONGRESS
SEES FIT TO HAVE LIABILITY FOR INJURIES BY RAILROAD EMPLOYEES AND
SEAMEN BASED SOLELY ON PROOF OF FAULT, IT IS NOT FOR THIS COURT TO
TORTURE AND TWIST THE LAW OF NEGLIGENCE SO AS TO MAKE IT IN RESULT A
LAW NOT OF LIABILITY FOR FAULT BUT A LAW OF LIABILITY FOR INJURIES. 

ONE CANNOT BE UNMINDFUL THAT "THE RADIATING POTENCIES OF A DECISION
MAY GO BEYOND THE ACTUAL HOLDING."  HAWKS V. HAMILL, 288 U.S. 52, 58. 
LOWER COURTS READ THE OPINIONS OF THIS COURT WITH A NOT UNNATURAL
ALERTNESS TO CATCH INTIMATIONS BEYOND THE PRECISE RATIO DECIDENDI.  A
DECISION LIKE THIS EXERTS AN INFLUENCE, HOWEVER UNWITTINGLY, WELL
CALCULATED TO LEAD LOWER COURT JUDGES TO AVOID REVERSALS BY DECIDING
COMPASSIONATELY FOR THE PLAINTIFF IN THESE NEGLIGENCE CASES CONFIDENT
THAT SUCH DECISIONS ARE NOT LIKELY TO BE REVIEWED HERE. 

I WOULD HAVE THE CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

FN1  PETITIONER TESTIFIED: 

"Q.  NOW, WHEN YOU WERE STANDING THERE JUST BEFORE THE ACCIDENT, IN
THE LAST THING YOU KNEW BEFORE THE ACCIDENT HAPPENED, WHAT WERE YOU
DOING? 

"A.  I WAS COILING THE LINE ON THE WELL DECK OR THE MACCANO DECK. 

"Q.  STANDING UP OR LEANING OVER? 

"A.  I WAS BENDING OVER. 

"Q.  THEN WHAT HAPPENED? 

"A.  THAT IS ALL I REMEMBER." 

MR. JUSTICE JACKSON AND MR. JUSTICE BURTON JOIN IN THIS DISSENT. 
..END :
















MAGGIO V. ZEITZ, 333 U.S. 56 


NO. 38.  SUBMITTED OCTOBER 13, 1947.  - DECIDED FEBRUARY 9, 1948.  - 157
F.2D 951, JUDGMENTS VACATED AND CASE REMANDED. 


1.  IN A CIVIL CONTEMPT PROCEEDING AGAINST A BANKRUPT FOR FAILURE TO
COMPLY WITH AN ORDER TO TURN OVER TO THE TRUSTEE ASSETS OF THE ESTATE
FOUND TO BE IN HIS POSSESSION OR UNDER HIS CONTROL AT THE TIME SUCH
ORDER WAS ISSUED (20 MONTHS EARLIER IN THIS CASE), THE BANKRUPTCY COURT
SHOULD NOT ADJUDGE THE BANKRUPT IN CONTEMPT AND COMMIT HIM TO JAIL TO
COERCE COMPLIANCE IF IT APPEARS THAT HE IS PRESENTLY UNABLE TO COMPLY -
EVEN THOUGH THE PREVIOUS FINDING THAT HE HAD POSSESSION OF THE PROPERTY
WHEN THE TURNOVER ORDER WAS ISSUED HAS BECOME RES JUDICATA.  PP. 69
78. 

2.  COURTS OF BANKRUPTCY HAVE NO AUTHORITY TO COMPENSATE FOR ANY
NEGLECT OR LACK OF ZEAL IN APPLYING THE CRIMINAL SANCTIONS PRESCRIBED
BY THE BANKRUPTCY ACT BY PERVERSION OF CIVIL REMEDIES TO ENDS OF
PUNISHMENT.  P. 62. 

3.  THE SUMMARY TURNOVER PROCEDURE, FASHIONED BY BANKRUPTCY COURTS AS
A MEANS OF RETRIEVING CONCEALED ASSETS OR BOOKS OF ACCOUNT, IS
ESSENTIALLY A PROCEEDING FOR RESTITUTION OF PROPERTY RATHER THAN
INDEMNIFICATION; AND THE PRIMARY CONDITION OF RELIEF IS POSSESSION OF
EXISTING CHATTELS OR THEIR PROCEEDS CAPABLE OF BEING SURRENDERED BY THE
PERSON ORDERED TO DO SO. PP. 62-63. 

4.  RESORT TO A TURNOVER PROCEEDING IS NOT APPROPRIATE WHEN THE
PROPERTY AND ITS PROCEEDS HAVE ALREADY BEEN DISSIPATED, NO MATTER WHEN
THAT DISSIPATION OCCURRED.  PP. 63-64. 

5.  IN A TURNOVER PROCEEDING, THE BURDEN IS UPON THE TRUSTEE TO PROVE
BY CLEAR AND CONVINCING EVIDENCE THAT THE PROPERTY HAS BEEN ABSTRACTED
FROM THE BANKRUPT ESTATE AND IS IN THE POSSESSION OF THE PARTY
PROCEEDED AGAINST.  ORIEL V. RUSSELL, 278 U.S. 358.  P. 64. 

6.  THE PRESUMPTION THAT POSSESSION OF PROPERTY OF A BANKRUPT, ONCE
PROVEN, CONTINUES UNTIL THE POSSESSOR EXPLAINS WHEN AND HOW POSSESSION
CEASED IS NOT A RULE OF LAW TO BE APPLIED IN ALL CASES, BUT A RULE OF
EVIDENCE TO BE APPLIED ONLY WHEN THE TIME ELEMENT AND OTHER FACTORS
MAKE THAT A FAIR AND REASONABLE INFERENCE.  PP. 64-66. 

7.  A TURNOVER ORDER SHOULD NOT BE ISSUED OR AFFIRMED ON A
PRESUMPTION THOUGHT TO ARISE FROM SOME ISOLATED CIRCUMSTANCE, SUCH AS
ONE-TIME POSSESSION, WHEN THE REVIEWING COURT FINDS FROM THE WHOLE
RECORD THAT THE ORDER IS UNREALISTIC AND UNJUST.  PP. 66-67. 

8.  WHEN A TURNOVER PROCEEDING IS COMPLETED AND TERMINATED IN A FINAL
ORDER, IT BECOMES RES JUDICATA AND IS NOT SUBJECT TO COLLATERAL ATTACK
IN A SUBSEQUENT PROCEEDING IN CIVIL CONTEMPT TO COERCE OBEDIENCE.  PP.
68-69. 

9.  EVEN THOUGH A TURNOVER ORDER HAS BECOME RES JUDICATA AS TO THE
ISSUE OF POSSESSION OF THE GOODS IN QUESTION AT THE TIME OF THE
TURNOVER PROCEEDINGS, A SUBSEQUENT PROCEEDING IN CIVIL CONTEMPT TO
COERCE COMPLIANCE TENDERS THE ISSUE AS TO PRESENT WILFUL DISOBEDIENCE,
WHICH MUST BE TRIED LIKE ANY OTHER ISSUE; AND THE COURT IS ENTITLED TO
CONSIDER ALL EVIDENCE RELEVANT TO IT. PP. 74-75. 

10.  IN A CIVIL CONTEMPT PROCEEDING TO COERCE COMPLIANCE WITH A
TURNOVER ORDER, THE BANKRUPT MAY NOT CHALLENGE THE PREVIOUS
ADJUDICATION OF POSSESSION MADE WHEN THE TURNOVER ORDER WAS ISSUED; BUT
HE MAY BE PERMITTED TO DENY HIS PRESENT POSSESSION AND TO GIVE ANY
EVIDENCE OF PRESENT CONDITIONS OR INTERVENING EVENTS WHICH CORROBORATE
SUCH DENIAL.  PP. 75-76. 

11.  IN A CIVIL CONTEMPT PROCEEDING TO ENFORCE A TURNOVER ORDER, A
TRIAL COURT IS OBLIGED TO WEIGH NOT MERELY THE FACTS THAT A TURNOVER
ORDER HAS ISSUED AND HAS NOT BEEN OBEYED BUT ALSO ALL OTHER EVIDENCE
PROPERLY BEFORE IT, IN DETERMINING WHETHER OR NOT THERE IS ACTUALLY A
PRESENT ABILITY TO COMPLY AND WHETHER FAILURE TO DO SO CONSTITUTES
DELIBERATE DEFIANCE WHICH A JAIL TERM WILL BREAK.  PP. 76-77. 

12.  THIS COURT REGARDS TURNOVER AND CONTEMPT ORDERS, AND PETITIONS
FOR CERTIORARI TO REVIEW THEM, AS USUALLY RAISING ONLY QUESTIONS OF
FACT TO BE SOLVED BY A CAREFUL ANALYSIS OF EVIDENCE, WHICH SHOULD TAKE
PLACE IN THE LOWER COURTS; AND THIS COURT IS LOATH TO REVIEW PARTICULAR
CASES, ESPECIALLY WHERE THE ORDER CARRIES APPROVAL OF THE REFEREE, THE
DISTRICT COURT, AND THE CIRCUIT COURT OF APPEALS.  P. 70. 

13.  WHEN A MISAPPREHENSION OF THE LAW HAS LED BOTH COURTS BELOW TO
ADJUDICATE RIGHTS WITHOUT CONSIDERING ESSENTIAL FACTS IN THE LIGHT OF
THE CONTROLLING LAW, THIS COURT WILL VACATE THE JUDGMENTS AND REMAND
THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THE PRINCIPLES LAID DOWN IN THIS COURT'S OPINION.  P. 77. 

MAGGIO V. ZEITZ, TRUSTEE IN BANKRUPTCY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

A REFEREE IN BANKRUPTCY FOUND THE BANKRUPT IN CONTEMPT FOR FAILURE TO
COMPLY WITH A TURNOVER ORDER PREVIOUSLY AFFIRMED BY THE DISTRICT COURT
AND THE CIRCUIT COURT OF APPEALS.  THE DISTRICT COURT AFFIRMED AND
ORDERED THE BANKRUPT COMMITTED TO JAIL UNTIL HE COMPLIED OR UNTIL
FURTHER ORDER OF THE COURT.  THE CIRCUIT COURT OF APPEALS AFFIRMED,
ALTHOUGH IT SAID IT KNEW THAT THE BANKRUPT COULD NOT COMPLY WITH THE
TURNOVER ORDER.  157 F.2D 951.  THIS COURT GRANTED CERTIORARI.  330
U.S. 816.  JUDGMENTS VACATED AND CASE REMANDED TO THE DISTRICT COURT,
P. 78. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

JOSEPH MAGGIO, THE PETITIONER, WAS PRESIDENT AND MANAGER OF LUMA
CAMERA SERVICE, INC., WHICH WAS ADJUDGED BANKRUPT ON APRIL 23, 1942. 
IN JANUARY OF 1943 THE TRUSTEE ASKED THE COURT TO DIRECT MAGGIO TO TURN
OVER A CONSIDERABLE AMOUNT OF MERCHANDISE ALLEGED TO HAVE BEEN TAKEN
FROM THE BANKRUPT CONCERN IN 1941, AND STILL IN MAGGIO'S POSSESSION OR
CONTROL.  AFTER HEARING, THE REFEREE FOUND THAT "THE TRUSTEE
ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT THE MERCHANDISE
HEREINAFTER DESCRIBED, BELONGING TO THE ESTATE OF THE BANKRUPT, WAS
KNOWINGLY AND FRAUDULENTLY CONCEALED BY THE RESPONDENT (MAGGIO) FROM
THE TRUSTEE HEREIN AND THAT SAID MERCHANDISE IS NOW IN THE POSSESSION
OR UNDER THE CONTROL OF THE RESPONDENT."  A TURNOVER ORDER ISSUED AND
WAS AFFIRMED BY THE DISTRICT COURT AND THEN UNANIMOUSLY AFFIRMED BY THE
CIRCUIT COURT OF APPEALS, SECOND CIRCUIT, WITHOUT OPINION OTHER THAN
CITATION OF ITS OWN PRIOR CASES.  ZEITZ V. MAGGIO, 145 F.2D 241. 
PETITION FOR CERTIORARI WAS DENIED BY THIS COURT.  324 U.S. 841. 

AS MAGGIO FAILED TO TURN OVER THE PROPERTY OR ITS PROCEEDS, THE
REFEREE FOUND HIM IN CONTEMPT.  AFTER HEARING, THE DISTRICT COURT
AFFIRMED AND ORDERED MAGGIO TO BE JAILED UNTIL HE COMPLIED OR UNTIL
FURTHER ORDER OF THE COURT.  AGAIN THE CIRCUIT COURT OF APPEALS
AFFIRMED.  157 F.2D 951. 

BUT IN AFFIRMING THE COURT SAID:  "ALTHOUGH WE KNOW THAT MAGGIO
CANNOT COMPLY WITH THE ORDER, WE MUST KEEP A STRAIGHT FACE AND PRETEND
THAT HE CAN, AND MUST THUS AFFIRM ORDERS WHICH FIRST DIRECT MAGGIO 'TO
DO AN IMPOSSIBILITY, AND THEN PUNISH HIM FOR REFUSAL TO PERFORM IT.'" 
WHETHER THIS IS TO BE READ LITERALLY AS ITS DELIBERATE JUDGMENT OF THE
LAW OF THE CASE OR IS SOMETHING OF A DECOY INTENDED TO ATTRACT OUR
ATTENTION TO THE PROBLEM, THE DECLARATION IS ONE WHICH THIS COURT, IN
VIEW OF ITS SUPERVISORY POWER OVER COURTS OF BANKRUPTCY, CANNOT
IGNORE.  FRAUDULENT BANKRUPTCIES PROBABLY PRESENT MORE DIFFICULTIES TO
THE COURTS IN THE SECOND CIRCUIT THAN THEY DO ELSEWHERE.  THESE
CONDITIONS ARE REFLECTED IN CONFLICTING VIEWS WITHIN THE COURT OF
APPEALS, WHICH WE NEED NOT DETAIL AS THEY ARE ALREADY SET OUT IN THE
BOOKS:  IN RE SCHOENBERG, 70 F.2D 321; DANISH V. SOFRANSKI, 93 F.2D
424; IN RE PINSKY-LAPIN & CO., 98 F.2D 776; SELIGSON V. GOLDSMITH, 128
F.2D 977; ROSENBLUM V. MARINELLO, 133 F.2D 674; ROBBINS V. GOTTBETTER,
134 F.2D 843; COHEN V. JESKOWITZ, 144 F.2D 39; ZEITZ V. MAGGIO, 145
F.2D 241. 

THE PROBLEM IS ILLUSTRATED BY THIS CASE.  THE COURT BELOW SAYS THAT
IN THE TURNOVER PROCEEDINGS IT WAS SUFFICIENTLY ESTABLISHED THAT,
TOWARDS THE END OF 1941, A SHORTAGE OCCURRED IN THIS BANKRUPT'S STOCK
OF MERCHANDISE.  IT SEEMS ALSO TO REGARD IT AS PROVED THAT MAGGIO
PERSONALLY TOOK POSSESSION OF THE CORPORATION'S VANISHING ASSETS.  BUT
THIS ABSTRACTION BY MAGGIO OCCURRED SEVERAL MONTHS BEFORE BANKRUPTCY
AND OVER A YEAR BEFORE THE TURNOVER ORDER WAS APPLIED FOR.  THE ONLY
EVIDENCE THAT THE GOODS THEN WERE IN THE POSSESSION OR CONTROL OF
MAGGIO WAS THE PROOF OF HIS ONETIME POSSESSION SUPPLEMENTED BY A
"PRESUMPTION" THAT, IN THE ABSENCE OF A CREDIBLE EXPLANATION BY MAGGIO
OF HIS DISPOSITION OF THE GOODS, HE CONTINUES IN POSSESSION OF THEM OR
THEIR PROCEEDS.  BECAUSE THE COURT OF APPEALS FELT CONSTRAINED BY ITS
OPINIONS TO ADHERE TO THIS "PRESUMPTION" OR "FICTION" IT AFFIRMED THE
TURNOVER ORDER.  NOW IT SAYS IT IS CONVINCED THAT IN REALITY MAGGIO DID
NOT RETAIN THE GOODS OR THEIR PROCEEDS UP TO THE TIME OF THE TURNOVER
PROCEEDINGS AND THAT THE TURNOVER ORDER WAS UNJUST.  BUT IT CONSIDERS
THE TURNOVER ORDER RES JUDICATA AND THE INJUSTICE BEYOND REACH ON
REVIEW OF THE CONTEMPT ORDER. 

THE PROCEEDING WHICH LEADS TO COMMITMENT CONSISTS OF TWO SEPARATE
STAGES WHICH EASILY BECOME OUT-OF-JOINT BECAUSE THE DEFENSE TO THE
SECOND OFTEN IN SUBSTANCE IS AN EFFORT TO RELITIGATE, PERHAPS BEFORE
ANOTHER JUDGE, THE ISSUE SUPPOSED TO HAVE BEEN SETTLED IN THE FIRST,
AND BECAUSE WHILE THE BURDEN OF PROOF RESTS ON THE TRUSTEE, FREQUENTLY
EVIDENCE OF THE FACTS IS ENTIRELY IN POSSESSION OF HIS ADVERSARY, THE
BANKRUPT, WHO IS ADVANTAGED BY NONDISCLOSURE.  BECAUSE THESE SEPARATE
BUT INTERDEPENDENT TURNOVER AND CONTEMPT PROCEDURES ARE IMPORTANT TO
SUCCESSFUL BANKRUPTCY ADMINISTRATION, WE RESTATE SOME OF THE PRINCIPLES
APPLICABLE TO EACH, CONSCIOUS HOWEVER OF THE RISK THAT WE MAY DO MORE
TO STIR NEW THAN TO SETTLE OLD CONTROVERSIES. 

                                  I. 

THE TURNOVER PROCEDURE IS ONE NOT EXPRESSLY CREATED OR REGULATED BY
THE BANKRUPTCY ACT.  IT IS A JUDICIAL INNOVATION BY WHICH THE COURT
SEEKS EFFICIENTLY AND EXPEDITIOUSLY TO ACCOMPLISH ENDS PRESCRIBED BY
THE STATUTE, WHICH, HOWEVER, LEFT THE MEANS LARGELY TO JUDICIAL
INGENUITY. 

THE COURTS OF BANKRUPTCY ARE INVESTED "WITH SUCH JURISDICTION IN LAW
AND IN EQUITY AS WILL ENABLE THEM" TO "CAUSE THE ESTATES OF BANKRUPTS
TO BE COLLECTED, REDUCED TO MONEY AND DISTRIBUTED, AND DETERMINE
CONTROVERSIES IN RELATION THERETO  ...  "  11 U.S.C. SEC. 11(A)(7). 
AND THE FUNCTION TO "COLLECT AND REDUCE TO MONEY THE PROPERTY OF THE
ESTATES" IS ALSO LAID UPON THE TRUSTEE.  11 U.S.C. SEC. 75(A)(1).  A
CORRELATIVE DUTY IS IMPOSED UPON THE BANKRUPT FULLY AND EFFECTUALLY TO
TURN OVER ALL OF HIS PROPERTY AND INTERESTS, AND IN CASE OF A
CORPORATION THE DUTY RESTS UPON ITS OFFICERS, DIRECTORS OR
STOCKHOLDERS.  11 U.S.C. SEC. 25. 

TO COMPEL THESE PERSONS TO DISCHARGE THEIR DUTY, THE STATUTE IMPOSES
CRIMINAL SANCTIONS.  IT DENOUNCES A COMPREHENSIVE LIST OF FRAUDS,
CONCEALMENTS, FALSIFICATIONS, MUTILATION OF RECORDS AND OTHER ACTS THAT
WOULD DEFEAT OR OBSTRUCT COLLECTION OF THE ASSETS OF THE ESTATE, AND
PRESCRIBES HEAVY PENALTIES OF FINE OR IMPRISONMENT OR BOTH.  11 U.S.C.
SEC. 52(B).  IT ALSO CONFERS ON THE COURTS POWER TO ARRAIGN, TRY AND
PUNISH PERSONS FOR VIOLATIONS, BUT "IN ACCORDANCE WITH THE LAWS OF
PROCEDURE" REGULATING TRIALS OF CRIMES.  11 U.S.C. SEC. 11(A)(4).  AND
IT SPECIFICALLY PROVIDES FOR JURY TRIAL OF OFFENSES AGAINST THE
BANKRUPTCY ACT.  11 U.S.C. SEC. 42(A), (C).  SPECIAL PROVISIONS ARE
ALSO MADE TO INDUCE VIGILANCE IN PROSECUTING SUCH OFFENSES.  IT IS THE
DUTY OF THE REFEREE AND TRUSTEE TO REPORT ANY PROBABLE GROUNDS FOR
BELIEVING SUCH AN OFFENSE HAS BEEN COMMITTED TO THE UNITED STATES
ATTORNEY, WHO THEREUPON IS REQUIRED TO INVESTIGATE AND REPORT TO THE
REFEREE.  IN A PROPER CASE HE IS DIRECTED TO PRESENT THE MATTER TO THE
GRAND JURY WITHOUT DELAY, AND IF HE THINKS IT NOT A PROPER CASE HE MUST
REPORT THE FACTS TO THE ATTORNEY GENERAL AND ABIDE HIS INSTRUCTIONS. 
11 U.S.C. SEC. 52(E). 

COURTS OF BANKRUPTCY HAVE NO AUTHORITY TO COMPENSATE FOR ANY NEGLECT
OR LACK OF ZEAL IN APPLYING THESE PRESCRIBED CRIMINAL SANCTIONS BY
PERVERSION OF CIVIL REMEDIES TO ENDS OF PUNISHMENT, AS SOME JUDGES OF
THE COURT OF APPEALS SUGGEST IS BEING DONE. 

UNFORTUNATELY, CRIMINAL PROSECUTIONS DO NOT RECOVER CONCEALED
TREASURE.  AND THE TRUSTEE, AS WELL AS THE COURT, IS COMMANDED TO
COLLECT THE PROPERTY.  THE ACT VESTS TITLE TO ALL PROPERTY OF THE
BANKRUPT, INCLUDING ANY TRANSFERRED IN FRAUD OF CREDITORS, IN THE
TRUSTEE, AS OF THE DATE OF FILING THE PETITION IN BANKRUPTCY, 11 U.S.C.
SEC. 110, WHICH PUTS HIM IN POSITION TO PURSUE ALL PLENARY OR SUMMARY
REMEDIES TO OBTAIN POSSESSION. 

TO ENTERTAIN THE PETITIONS OF THE TRUSTEE THE BANKRUPTCY COURT NOT
ONLY IS VESTED WITH "JURISDICTION OF ALL CONTROVERSIES AT LAW AND IN
EQUITY" BETWEEN TRUSTEES AND ADVERSE CLAIMANTS CONCERNING PROPERTY
ACQUIRED OR CLAIMED BY THE TRUSTEE, 11 U.S.C. SEC. 46, BUT IT ALSO IS
GIVEN A WIDE DISCRETIONARY JURISDICTION TO ACCOMPLISH THE ENDS OF THE
ACT, OR IN THE WORDS OF THE STATUTE TO "MAKE SUCH ORDERS, ISSUE SUCH
PROCESS, AND ENTER SUCH JUDGMENTS, IN ADDITION TO THOSE SPECIFICALLY
PROVIDED FOR, AS MAY BE NECESSARY FOR THE ENFORCEMENT OF THE PROVISIONS
OF THIS TITLE."  11 U.S.C. SEC. 11(A)(15). 

IN APPLYING THESE GRANTS OF POWER, COURTS OF BANKRUPTCY HAVE
FASHIONED THE SUMMARY TURNOVER PROCEDURE AS ONE NECESSARY TO ACCOMPLISH
THEIR FUNCTION OF ADMINISTRATION.  IT ENABLES THE COURT SUMMARILY TO
RETRIEVE CONCEALED AND DIVERTED ASSETS OR SECRETED BOOKS OF ACCOUNT THE
WITHHOLDING OF WHICH, PENDING THE OUTCOME OF PLENARY SUITS, WOULD
INTOLERABLY OBSTRUCT AND DELAY ADMINISTRATION.  WHEN SUPPORTED BY
"CLEAR AND CONVINCING EVIDENCE," THE TURNOVER ORDER HAS BEEN SUSTAINED
AS AN APPROPRIATE AND NECESSARY STEP IN ENFORCING THE BANKRUPTCY ACT. 
ORIEL V. RUSSELL, 278 U.S. 358; COOPER V. DASHER, 290 U.S. 106.  SEE
ALSO FARMERS & MECHANICS NATIONAL BANK V. WILKINSON, 266 U.S. 503. 

BUT THIS PROCEDURE IS ONE PRIMARILY TO GET AT PROPERTY RATHER THAN TO
GET AT A DEBTOR.  WITHOUT PUSHING THE ANALOGY TOO FAR, IT MAY BE SAID
THAT THE THEORETICAL BASIS FOR THIS REMEDY IS FOUND IN THE COMMON LAW
ACTIONS TO RECOVER POSSESSION - DETINUE FOR UNLAWFUL DETENTION OF
CHATTELS AND REPLEVIN FOR THEIR UNLAWFUL TAKING - AS DISTINGUISHED FROM
ACTIONS IN TRESPASS OR TROVER TO RECOVER DAMAGES FOR THE WITHHOLDING OR
FOR THE VALUE OF THE PROPERTY.  OF COURSE THE MODERN REMEDY DOES NOT
EXACTLY FOLLOW ANY OF THESE ANCIENT AND OFTEN OVERLAPPING PROCEDURES,
BUT THE OBJECT - POSSESSION OF SPECIFIC PROPERTY - IS THE SAME.  THE
ORDER FOR POSSESSION MAY EXTEND TO PROCEEDS OF PROPERTY THAT HAS BEEN
DISPOSED OF, IF THEY ARE SUFFICIENTLY IDENTIFIED AS SUCH.  BUT IT IS
ESSENTIALLY A PROCEEDING FOR RESTITUTION RATHER THAN INDEMNIFICATION,
WITH SOME CHARACTERISTICS OF A PROCEEDING IN REM; THE PRIMARY CONDITION
OF RELIEF IS POSSESSION OF EXISTING CHATTELS OR THEIR PROCEEDS CAPABLE
OF BEING SURRENDERED BY THE PERSON ORDERED TO DO SO.  IT IS IN NO SENSE
BASED ON A CAUSE OF ACTION FOR DAMAGES FOR TORTIOUS CONDUCT SUCH AS
EMBEZZLEMENT, MISAPPROPRIATION OR IMPROVIDENT DISSIPATION OF ASSETS. 

THE NATURE AND DERIVATION OF THE REMEDY MAKE CLEAR THAT IT IS
APPROPRIATE ONLY WHEN THE EVIDENCE SATISFACTORILY ESTABLISHES THE
EXISTENCE OF THE PROPERTY OR ITS PROCEEDS, AND POSSESSION THEREOF BY
THE DEFENDANT AT THE TIME OF THE PROCEEDING.  WHILE SOME COURTS HAVE
TAKEN THE DATE OF BANKRUPTCY AS THE TIME TO WHICH THE INQUIRY IS
DIRECTED, WE DO NOT CONSIDER RESORT TO THIS PARTICULAR PROCEEDING
APPROPRIATE IF, AT THE TIME IT IS INSTITUTED, THE PROPERTY AND ITS
PROCEEDS HAVE ALREADY BEEN DISSIPATED, NO MATTER WHEN THAT DISSIPATION
OCCURRED.  CONDUCT WHICH HAS PUT PROPERTY BEYOND THE LIMITED REACH OF
THE TURNOVER PROCEEDING MAY BE A CRIME, OR, IF IT VIOLATES AN ORDER OF
THE REFEREE, A CRIMINAL CONTEMPT, BUT NO SUCH ACTS, HOWEVER
REPREHENSIBLE, WARRANT ISSUANCE OF AN ORDER WHICH CREATES A DUTY
IMPOSSIBLE OF PERFORMANCE, SO THAT PUNISHMENT CAN FOLLOW.  IT SHOULD
NOT BE NECESSARY TO SAY THAT IT WOULD BE A FLAGRANT ABUSE OF PROCESS TO
ISSUE SUCH AN ORDER TO EXERT PRESSURE ON FRIENDS AND RELATIVES TO
RANSOM THE ACCUSED PARTY FROM BEING JAILED. 

          II. 

IT IS EVIDENT THAT THE REAL ISSUE AS TO TURNOVER ORDERS CONCERNS THE
BURDEN OF PROOF THAT WILL BE PUT ON THE TRUSTEE AND HOW HE CAN MEET IT.
THIS COURT HAS SAID THAT THE TURNOVER ORDER MUST BE SUPPORTED BY
"CLEAR AND CONVINCING EVIDENCE," ORIEL V. RUSSELL, 278 U.S. 358, AND
THAT INCLUDES PROOF THAT THE PROPERTY HAS BEEN ABSTRACTED FROM THE
BANKRUPT ESTATE AND IS IN THE POSSESSION OF THE PARTY PROCEEDED
AGAINST.  IT IS THE BURDEN OF THE TRUSTEE TO PRODUCE THIS EVIDENCE,
HOWEVER DIFFICULT HIS TASK MAY BE. 

THE TRUSTEE USUALLY CAN SHOW THAT THE MISSING ASSETS WERE IN THE
POSSESSION OR UNDER THE CONTROL OF THE BANKRUPT AT THE TIME OF
BANKRUPTCY.  TO BRING THIS PAST POSSESSION DOWN TO THE DATE INVOLVED IN
THE TURNOVER PROCEEDINGS, THE TRUSTEE HAS BEEN ALLOWED THE BENEFIT OF
WHAT IS CALLED A PRESUMPTION THAT THE POSSESSION CONTINUES UNTIL THE
POSSESSOR EXPLAINS WHEN AND HOW IT CEASED.  THIS INFERENCE, WHICH MIGHT
BE ENTIRELY PERMISSIBLE IN SOME CASES, SEEMS TO HAVE SETTLED INTO A
RIGID PRESUMPTION WHICH IT IS SAID THE LOWER COURTS APPLY WITHOUT
REGARD TO ITS REASONABLENESS IN THE PARTICULAR CASE. 

HOWEVER, NO SUCH PRESUMPTION, AND NO SUCH FICTION, IS CREATED BY THE
BANKRUPTCY STATUTE.  NONE CAN BE FOUND IN ANY DECISION OF THIS COURT
DEALING WITH THIS PROCEDURE.  FN1  LANGUAGE CAN, OF COURSE, BE GLEANED
FROM JUDICIAL PRONOUNCEMENTS AND TEXTS THAT CONDITIONS ONCE EXISTING
MAY BE PRESUMED TO CONTINUE UNTIL THEY ARE SHOWN TO HAVE CHANGED.  BUT
SUCH GENERALIZATIONS, USEFUL ENOUGH, PERHAPS, IN SOLVING SOME PROBLEM
OF A PARTICULAR CASE, ARE NOT RULES OF LAW TO BE APPLIED TO ALL CASES,
WITH OR WITHOUT REASON.    SINCE NO AUTHORITY IMPOSES UPON EITHER THE
COURT OF APPEALS OR THE BANKRUPTCY COURT ANY PRESUMPTION OF LAW, EITHER
CONCLUSIVE OR DISPUTABLE, WHICH WOULD FORBID OR DISPENSE WITH FURTHER
INQUIRY OR CONSIDERATION OF OTHER EVIDENCE AND TESTIMONY, TURNOVER
ORDERS SHOULD NOT BE ISSUED, OR APPROVED ON APPEAL, MERELY ON PROOF
THAT AT SOME PAST TIME PROPERTY WAS IN POSSESSION OR CONTROL OF THE
ACCUSED PARTY, UNLESS THE TIME ELEMENT AND OTHER FACTORS MAKE THAT A
FAIR AND REASONABLE INFERENCE.  FN2  UNDER SOME CIRCUMSTANCES IT MAY BE
PERMISSIBLE, IN RESOLVING THE UNKNOWN FROM THE KNOWN, TO REACH THE
CONCLUSION OF PRESENT CONTROL FROM PROOF OF PREVIOUS POSSESSION.  SUCH
A PROCESS, SOMETIMES CHARACTERIZED AS A "PRESUMPTION OF FACT," IS,
HOWEVER, NOTHING MORE THAN A PROCESS OF REASONING FROM ONE FACT TO
ANOTHER, AN ARGUMENT WHICH INFERS A FACT OTHERWISE DOUBTFUL FROM A FACT
WHICH IS PROVED. 

OF COURSE, THE FACT THAT A MAN AT ONE TIME HAD A GIVEN ITEM OF
PROPERTY IS A CIRCUMSTANCE TO BE WEIGHED IN DETERMINING WHETHER HE MAY
PROPERLY BE FOUND TO HAVE IT AT A LATER DATE.  BUT THE INFERENCE FROM
YESTERDAY'S POSSESSION IS ONE THING, THAT PERMISSIBLE FROM POSSESSION
TWENTY MONTHS AGO QUITE ANOTHER.  WITH WHAT KIND OF PROPERTY DO WE
DEAL?  WAS IT SALABLE OR CONSUMABLE?  THE INFERENCE OF CONTINUED
POSSESSION MIGHT BE WARRANTED WHEN APPLIED TO BOOKS OF ACCOUNT WHICH
ARE NOT CONSUMABLE OR MARKETABLE, BUT QUITE INAPPROPRIATE UNDER THE
SAME CIRCUMSTANCES IF APPLIED TO PERISHABLE MERCHANDISE OR SALABLE
GOODS IN CONSIDERABLE DEMAND.  SUCH AN INFERENCE IS ONE THING WHEN
APPLIED TO A THRIFTY PERSON WHO WITHDRAWS HIS SAVINGS ACCOUNT AFTER
BEING INVOLVED IN AN ACCIDENT, FOR NO APPARENT PURPOSE EXCEPT TO GET IT
BEYOND THE REACH OF A TORT CREDITOR, SEE ROSENBLUM V. MARINELLO, 133
F.2D 674; IT IS VERY DIFFERENT WHEN APPLIED TO A STOCK OF WARES BEING
SOLD BY A FAST-LIVING ADVENTURER USING THE PROCEEDS TO MAKE UP THE
DIFFERENCE BETWEEN INCOME AND OUTGO. 

TURNOVER ORDERS SHOULD NOT BE ISSUED OR AFFIRMED ON A PRESUMPTION
THOUGHT TO ARISE FROM SOME ISOLATED CIRCUMSTANCE, SUCH AS ONETIME
POSSESSION, WHEN THE REVIEWING COURT FINDS FROM THE WHOLE RECORD THAT
THE ORDER IS UNREALISTIC AND UNJUST.  NO RULE OF LAW REQUIRES THAT
JUDGMENT BE THUS FETTERED; NOR HAS THIS COURT EVER SO PRESCRIBED.  OF
COURSE, DEFERENCE IS DUE TO THE TRIAL COURT'S FINDINGS OF FACT, AS
PRESCRIBED BY OUR RULES, BUT EVEN THIS PRESUPPOSES THAT THE TRIER OF
FACT BE ACTUALLY EXERCISING HIS JUDGMENT, NOT MERELY APPLYING SOME
SUPPOSED RULE OF LAW.  IN ANY EVENT, RULES OF EVIDENCE AS TO INFERENCES
FROM FACTS ARE TO AID REASON, NOT TO OVERRIDE IT.  AND THERE DOES NOT
APPEAR TO BE ANY REASON FOR ALLOWING ANY SUCH PRESUMPTION TO OVERRIDE
REASON WHEN REVIEWING A TURNOVER ORDER. 

WE ARE WELL AWARE THAT THESE GENERALITIES DO LITTLE TO SOLVE CONCRETE
ISSUES.  THE LATTER CAN BE RESOLVED ONLY BY THE SOUND SENSE AND GOOD
JUDGMENT OF TRIAL COURTS, MINDFUL THAT THE ORDER SHOULD ISSUE ONLY AS A
RESPONSIBLE AND FINAL ADJUDICATION OF POSSESSION AND ABILITY TO
DELIVER, NOT AS A QUESTIONABLE EXPERIMENT IN COERCION WHICH WILL RECOIL
TO THE DISCREDIT OF THE JUDICIAL PROCESS IF TIME PROVES THE
ADJUDICATION TO HAVE BEEN IMPROVIDENT AND REQUIRES THE COURTS TO
ABANDON ITS ENFORCEMENT. 

               III. 

UNLIKE THE JUDICIALLY DEVELOPED TURNOVER PROCEEDINGS, CONTEMPT
PROCEEDINGS FOR DISOBEDIENCE OF A LAWFUL ORDER ARE SPECIFICALLY
AUTHORIZED BY TWO SEPARATE PROVISIONS OF THE ACT AND ARE OF TWO
DISTINCT KINDS.  THE COURT IS AUTHORIZED TO "ENFORCE OBEDIENCE BY
PERSONS TO ALL LAWFUL ORDERS, BY FINE OR IMPRISONMENT OR FINE AND
IMPRISONMENT."  11 U.S.C. SEC. 11(A)(13).  THIS CREATES THE CIVIL
CONTEMPT PROCEEDING TO COERCE OBEDIENCE, NOW BEFORE US.  THERE IS ALSO
PROVISION FOR A CRIMINAL CONTEMPT PROCEEDING WHOSE END IS TO PENALIZE
CONTUMACY, THE COURT ALSO BEING AUTHORIZED TO "PUNISH PERSONS FOR
CONTEMPTS COMMITTED BEFORE REFEREES."  11 U.S.C. SEC. 11(A)(16).  THESE
CONTEMPTS BEFORE REFEREES ARE DEFINED TO INCLUDE DISOBEDIENCE OR
RESISTANCE TO A LAWFUL ORDER, AND THE STATUTE PROVIDES FOR A SUMMARY
PROCEEDING BEFORE THE DISTRICT JUDGE WHO, IF THE EVIDENCE "IS SUCH AS
TO WARRANT HIM IN SO DOING," MAY PUNISH THE ACCUSED OR COMMIT HIM UPON
CONDITIONS.  11 U.S.C. SEC. 69. 

THE PROCEEDING BEFORE US SOUGHT ONLY A COERCIVE OR ENFORCEMENT
SANCTION.  THE PETITION ASKED COMMITMENT "UNTIL HE SHALL HAVE COMPLIED
WITH THE AFORESAID TURNOVER ORDER."  THE COMMITMENT WAS ONLY UNTIL HE
"SHALL HAVE PURGED HIMSELF OF SUCH CONTEMPT BY COMPLYING WITH SAID
TURNOVER ORDER, OR UNTIL THE FURTHER ORDER OF THIS COURT."  THUS NO
PUNISHMENT WHATEVER WAS IMPOSED FOR PAST DISOBEDIENCE, AND EVERY
PENALTY WAS CONTINGENT UPON FAILURE TO OBEY.  THIS IS A DECISIVE
CHARACTERISTIC OF CIVIL CONTEMPT AND OF THE TRULY COERCIVE COMMITMENT
FOR ENFORCEMENT PURPOSES, WHICH, AS OFTEN IS SAID, LEAVES THE CONTEMNOR
TO "CARRY THE KEY OF HIS PRISON IN HIS OWN POCKET."  PENFIELD CO. V.
SECURITIES & EXCHANGE COMMISSION, 330 U.S. 585.  WE THUS HAVE BEFORE US
NOW A CIVIL CONTEMPT OF THE SAME KIND THAT WAS BEFORE THE COURT IN
ORIEL V. RUSSELL, 278 U.S. 358, 363.  WHAT WE SAY, THEREFORE, IS NOT
APPLICABLE TO CRIMINAL CONTEMPT PROCEEDINGS DESIGNED SOLELY FOR
PUNISHMENT AND VINDICATION OF THE COURT'S FLOUTED AUTHORITY, SUCH, FOR
EXAMPLE, AS A PROCEEDING TO SENTENCE ONE FOR DESTROYING OR MUTILATING
BOOKS OF ACCOUNT OR PROPERTY IN HIS POSSESSION WHICH THE COURT HAD
ORDERED HIM TO TURN OVER. 

THE QUESTION NOW ARISES AS TO WHETHER, IN THIS CONTEMPT PROCEEDING,
THE COURT MAY INQUIRE INTO THE JUSTIFICATION FOR THE TURNOVER ORDER
ITSELF.  IT IS CLEAR HOWEVER THAT THE TURNOVER PROCEEDING IS A SEPARATE
ONE AND, WHEN COMPLETED AND TERMINATED IN A FINAL ORDER, IT BECOMES RES
JUDICATA AND NOT SUBJECT TO COLLATERAL ATTACK IN THE CONTEMPT
PROCEEDINGS.  THIS WE LONG AGO SETTLED IN ORIEL V. RUSSELL, 278 U.S.
358, AND, WE THINK, SETTLED RIGHTLY. 

THE COURT ORDER IS INCREASINGLY RESORTED TO, ESPECIALLY BY STATUTE,
FN3  TO COERCE PERFORMANCE OF DUTIES UNDER SANCTION OF CONTEMPT.  IT
WOULD BE A DISSERVICE TO THE LAW IF WE WERE TO DEPART FROM THE LONG
STANDING RULE THAT A CONTEMPT PROCEEDING DOES NOT OPEN TO
RECONSIDERATION THE LEGAL OR FACTUAL BASIS OF THE ORDER ALLEGED TO HAVE
BEEN DISOBEYED AND THUS BECOME A RETRIAL OF THE ORIGINAL CONTROVERSY. 
THE PROCEDURE TO ENFORCE A COURT'S ORDER COMMANDING OR FORBIDDING AN
ACT SHOULD NOT BE SO INCONCLUSIVE AS TO FOSTER EXPERIMENTATION WITH
DISOBEDIENCE.  EVERY PRECAUTION SHOULD BE TAKEN THAT ORDERS ISSUE, IN
TURNOVER AS IN OTHER PROCEEDINGS, ONLY AFTER LEGAL GROUNDS ARE SHOWN
AND ONLY WHEN IT APPEARS THAT OBEDIENCE IS WITHIN THE POWER OF THE
PARTY BEING COERCED BY THE ORDER.  BUT WHEN IT HAS BECOME FINAL,
DISOBEDIENCE CANNOT BE JUSTIFIED BY RE-TRYING THE ISSUES AS TO WHETHER
THE ORDER SHOULD HAVE ISSUED IN THE FIRST PLACE.  UNITED STATES V.
UNITED MINE WORKERS, 330 U.S. 258; ORIEL V. RUSSELL, 278 U.S. 358. 
COUNSEL APPEARS TO RECOGNIZE THIS RULE, FOR THE RECORD IN THE CASE NOW
BEFORE US DOES NOT INCLUDE THE EVIDENCE ON WHICH THE TURNOVER ORDER WAS
BASED.  WE COULD LEARN OF IT ONLY BY GOING OUTSIDE OF THE PRESENT
RECORD TO THAT IN THE FORMER CASE, WHICH WOULD BE AVAILABLE ONLY
BECAUSE AN APPLICATION WAS MADE TO THIS COURT TO REVIEW THAT EARLIER
PROCEEDING. 

WE THEREFORE THINK THE COURT OF APPEALS WAS RIGHT INSOFAR AS IT
CONCLUDED THAT THE TURNOVER ORDER IS SUBJECT ONLY TO DIRECT ATTACK, AND
THAT ITS ALLEGED INFIRMITIES CANNOT BE RELITIGATED OR CORRECTED IN A
SUBSEQUENT CONTEMPT PROCEEDING. 

                 IV. 

BUT DOES THIS MEAN THAT THE LOWER COURTS "MUST THUS AFFIRM ORDERS
WHICH FIRST DIRECT A BANKRUPT 'TO DO AN IMPOSSIBILITY, AND THEN PUNISH
HIM FOR REFUSAL TO PERFORM IT'"? 

WHETHER THE STATEMENT BY THE COURT OF APPEALS THAT IT KNOWS MAGGIO
CANNOT COMPLY WITH THE TURNOVER ORDER IS JUSTIFIED BY THE EVIDENCE IN
THIS RECORD, WE DO NOT STOP TO INQUIRE.  WE HAVE REGARDED TURNOVER AND
CONTEMPT ORDERS, AND PETITIONS FOR CERTIORARI TO REVIEW THEM, AS
USUALLY RAISING ONLY QUESTIONS OF FACT TO BE SOLVED BY THE CAREFUL
ANALYSIS OF EVIDENCE WHICH WE EXPECT TO TAKE PLACE IN THE TWO LOWER
COURTS.  THE ADVANTAGE OF THE REFEREE AND THE DISTRICT COURT IN HAVING
THE PARTIES AND WITNESSES BEFORE THEM, INSTEAD OF JUDGING ON A COLD
RECORD, IS CONSIDERABLE.  THE COURT OF APPEALS FOR EACH CIRCUIT ALSO
HAS THE ADVANTAGE OF CLOSER FAMILIARITY WITH THE CAPABILITIES,
TENDENCIES, AND PRACTICES OF THE REFEREE AND DISTRICT JUDGE.  BOTH
LOWER COURTS BETTER KNOW THE FRUITS OF THEIR COURSE OF DECISION IN
ACTUAL PRACTICE THAN CAN WE.  CONSEQUENTLY, WE HAVE BEEN LOATH TO
VENTURE A REVIEW OF PARTICULAR CASES, ESPECIALLY WHERE THE TURNOVER
ORDER CARRIES APPROVAL OF THE REFEREE, THE DISTRICT COURT AND THE COURT
OF APPEALS. 

HOWEVER, THE COURT BELOW APPEARS TO HAVE AFFIRMED THE ORDER FOR
COMMITMENT IN THIS CASE BY RELYING ON THE EARLIER FINDING OF PREVIOUS
POSSESSION TO RAISE A PRESUMPTION OF WILFUL DISOBEDIENCE CONTINUING TO
THE TIME OF COMMITMENT, EVEN THOUGH THAT CONCLUSION IS REJECTED BY THE
COURT'S GOOD JUDGMENT.  WHILE THE COURT PROTESTS THAT SUCH A PRESUMED
CONTINUANCE OF POSSESSION FROM THE TIME OF BANKRUPTCY TO THE TIME OF
THE TURNOVER ORDER IS UNREALISTIC, IT SEEMS TO HAVE AFFIRMED THE
CONTEMPT ORDER BY EXTENDING THE PRESUMPTION FROM THE TIME OF THE
TURNOVER ORDER TO THE TIME OF THE CONTEMPT PROCEEDINGS, ALTHOUGH
PERSUADED THAT MAGGIO HAD OVERCOME THE PRESUMPTION IF IT WERE
REBUTTABLE. 

THE FACT THAT THE CONTEMPT PROCEEDING MUST BEGIN WITH ACCEPTANCE OF
THE TURNOVER ORDER DOES NOT MEAN THAT IT MUST END WITH IT.  MAGGIO
MAKES NO EXPLANATION AS TO THE WHEREABOUTS OR DISPOSITION OF THE
PROPERTY WHICH THE ORDER, EARLIER AFFIRMED, DECLARED HIM TO POSSESS. 
BUT TIME HAS ELAPSED BETWEEN ISSUANCE OF THAT ORDER AND INITIATION OF
THE CONTEMPT PROCEEDINGS IN THIS CASE.  HE DOES TENDER EVIDENCE OF HIS
EARNINGS AFTER THE TURNOVER PROCEEDINGS AND UP UNTIL NOVEMBER 1944; HIS
UNEMPLOYMENT AFTER THAT TIME ALLEGEDLY DUE TO HIS FAILING HEALTH; AND
OF HIS FAMILY OBLIGATIONS AND MANNER OF LIVING DURING THE INTERVENING
PERIOD.  HE HAS ALSO SWORN THAT NEITHER HE NOR HIS FAMILY HAS AT ANY
TIME SINCE THE TURNOVER PROCEEDINGS POSSESSED ANY REAL OR PERSONAL
PROPERTY WHICH COULD BE USED TO SATISFY THE TRUSTEE'S DEMANDS.  AND HE
REPEATS HIS DENIAL THAT HE POSSESSES THE PROPERTY IN QUESTION. 

IT IS CLEAR THAT THE DISTRICT COURT IN THE CONTEMPT PROCEEDING
ATTACHED LITTLE OR NO SIGNIFICANCE TO MAGGIO'S EVIDENCE OR TESTIMONY,
ALTHOUGH THE COURT GAVE NO INDICATION THAT THE EVIDENCE WAS
INCREDIBLE.  THE DISTRICT COURT IN ITS OPINION CITES ONLY IN RE
SIEGLER, 31 F.2D 972, IN WHICH THE COURT OF APPEALS REVERSED A DISTRICT
JUDGE WHO, BECAUSE HE BELIEVED THE BANKRUPT'S TESTIMONY, HAD REFUSED TO
COMMIT HIM FOR CONTEMPT.  THE SIEGLER CASE AND OTHER CASES DECIDED BY
THE COURT OF APPEALS APPARENTLY LED THE DISTRICT JUDGE TO CONCLUDE THAT
NO DECISION OTHER THAN COMMITMENT OF MAGGIO WOULD BE APPROVED BY THAT
COURT. 

NOR DID THE COURT OF APPEALS REJECT THIS VIEW.  INDEED IT AFFIRMED
THE COMMITMENT FOR CONTEMPT BECAUSE IT CONSIDERED EITHER THAT PRESENT
INABILITY TO COMPLY IS OF NO RELEVANCE OR THAT THERE IS AN IRREBUTTABLE
PRESUMPTION OF CONTINUING ABILITY TO COMPLY EVEN IF THE RECORD
ESTABLISHES PRESENT INABILITY IN FACT.  IT SEEMS TO BE OF THE VIEW THAT
THIS PRESUMPTION STANDS INDEFINITELY, IF NOT PERMANENTLY, AND CAN BE
OVERCOME BY THE ACCUSED ONLY WHEN HE AFFIRMATIVELY SHOWS SOME
DISPOSITION OF THE PROPERTY BY HIM SUBSEQUENT TO THE TURNOVER
PROCEEDINGS.  WE DO NOT BELIEVE THESE VIEWS ARE REQUIRED BY ORIEL V.
RUSSELL, 278 U.S. 358, DESPITE SOME CONFLICTING STATEMENTS IN THE
OPINION, WHICH THE COURT OF APPEALS CONSTRUED AS COMPELLING AFFIRMANCE
OF THE CONTEMPT DECREE. 

THIS COURT SAID IN THE ORIEL CASE THAT "A MOTION TO COMMIT THE
BANKRUPT FOR FAILURE TO OBEY AN ORDER OF THE COURT TO TURN OVER TO THE
RECEIVER IN BANKRUPTCY THE PROPERTY OF THE BANKRUPT IS A CIVIL CONTEMPT
AND IS TO BE TREATED AS A MERE STEP IN THE PROCEEDINGS TO ADMINISTER
THE ASSETS OF THE BANKRUPT AS PROVIDED BY LAW, AND IN AID OF THE
SEIZURE OF THOSE ASSETS AND THEIR PROPER DISTRIBUTION.  WHILE IN A
SENSE THEY ARE PUNITIVE, THEY ARE NOT MERE PUNISHMENT - THEY ARE
ADMINISTRATIVE BUT COERCIVE, AND INTENDED TO COMPEL, AGAINST THE
RELUCTANCE OF THE BANKRUPT, PERFORMANCE BY HIM OF HIS LAWFUL DUTY." 
278 U.S. 358 AT 363. 

OF COURSE, TO JAIL ONE FOR A CONTEMPT FOR OMITTING AN ACT HE IS
POWERLESS TO PERFORM WOULD REVERSE THIS PRINCIPLE AND MAKE THE
PROCEEDING PURELY PUNITIVE, TO DESCRIBE IT CHARITABLY.  AT THE SAME
TIME, IT WOULD ADD NOTHING TO THE BANKRUPT ESTATE.  THAT THIS COURT IN
THE ORIEL CASE CONTEMPLATED NO SUCH RESULT APPEARS FROM LANGUAGE WHICH
IT BORROWED FROM A CIRCUIT COURT OF APPEALS OPINION WHICH, AFTER
POINTING OUT THAT CONFINEMENT OFTEN FAILED TO PRODUCE THE MONEY OR
GOODS, SAID, "'WHERE IT HAS FAILED, AND WHERE A REASONABLE INTERVAL OF
TIME HAS SUPPLIED THE PREVIOUS DEFECT IN THE EVIDENCE, AND HAS MADE
SUFFICIENTLY CERTAIN WHAT WAS DOUBTFUL BEFORE, NAMELY, THE BANKRUPT'S
INABILITY TO OBEY THE ORDER, HE HAS ALWAYS BEEN RELEASED, AND I NEED
HARDLY SAY THAT HE WOULD ALWAYS HAVE THE RIGHT TO BE RELEASED, AS SOON
AS THE FACT BECOMES CLEAR THAT HE CAN NOT OBEY.'"  FN4  MOREOVER, THE
AUTHORITIES RELIED UPON IN CHIEF JUSTICE TAFT'S OPINION  FN5 MAKE IT
CLEAR THAT HIS DECISION DID NOT CONTEMPLATE THAT A COERCIVE CONTEMPT
ORDER SHOULD ISSUE WHEN IT APPEARS THAT THERE IS AT THAT TIME NO WILFUL
DISOBEDIENCE BUT ONLY AN INCAPACITY TO COMPLY.  FN6  INDEED, THE
QUOTATION FROM IN RE EPSTEIN, CITED SUPRA (NOTE 4), ALSO STATED AT P.
569:  "IN THE PENDING CASE, OR IN ANY OTHER, THE COURT MAY BELIEVE THE
BANKRUPT'S ASSERTION THAT HE IS NOT NOW IN POSSESSION OR CONTROL OF THE
MONEY OR THE GOODS, AND IN THAT EVENT THE CIVIL INQUIRY IS AT AN END
...  "  FN7    THE SOURCE OF DIFFICULTIES IN THESE CASES HAS BEEN THAT
IN THE TWO SUCCESSIVE PROCEEDINGS THE SAME QUESTION OF POSSESSION AND
ABILITY TO PRODUCE THE GOODS OR THEIR PROCEEDS IS AT ISSUE, BUT AS OF
DIFFERENT POINTS OF TIME.  THE EARLIER ORDER MAY NOT BE IMPEACHED,
AVOIDED OR ATTACKED IN THE LATER PROCEEDINGS AND NO RELIEF CAN BE
SOUGHT AGAINST ITS COMMAND.  BUT WHEN THE TRUSTEE INSTITUTES THE LATER
PROCEEDING TO COMMIT, HE TENDERS THE ISSUE AS TO PRESENT WILFUL
DISOBEDIENCE, AGAINST WHICH THE COURT IS ASKED TO DIRECT ITS
SANCTIONS.  THE LATTER ISSUE MUST BE TRIED JUST AS ANY OTHER ISSUE, AND
THE COURT IS ENTITLED TO CONSIDER ALL EVIDENCE RELEVANT TO IT.  THE
TURNOVER ORDER ADJUDGES THE DEFENDANT TO BE IN POSSESSION AT THE DATE
OF ITS INQUIRY, BUT DOES IT ALSO CUT OFF EVIDENCE AS TO NON-POSSESSION
AT THE LATER TIME?  THUS, THE REAL PROBLEM CONCERNS THE EVIDENCE
ADMISSIBLE IN THE CONTEMPT PROCEEDING.  OF COURSE WE DO NOT ATTEMPT TO
LAY DOWN A COMPREHENSIVE OR DETAILED SET OF RULES ON THIS SUBJECT. 
THEY WILL HAVE TO BE FORMULATED AS SPECIFIC AND CONCRETE CASES PRESENT
DIFFERENT ASPECTS OF THE PROBLEM. 

IN ORIEL'S CASE, THIS COURT SAID:  "  ...  ON THE MOTION FOR
COMMITMENT THE ONLY EVIDENCE THAT CAN BE CONSIDERED IS THE EVIDENCE OF
SOMETHING THAT HAS HAPPENED SINCE THE TURNOVER ORDER WAS MADE SHOWING
THAT SINCE THAT TIME THERE HAS NEWLY ARISEN AN INABILITY ON THE PART OF
THE BANKRUPT TO COMPLY WITH THE TURNOVER ORDER."  THIS LANGUAGE THE
COURT OF APPEALS HAS CONSTRUED TO MEAN THAT THE ACCUSED CAN OFFER NO
EVIDENCE TO SHOW THAT HE DOES NOT NOW HAVE THE GOODS IF THAT EVIDENCE,
IN THE ABSENCE OF AN AFFIRMATIVE SHOWING OF WHEN AND HOW HE DISPOSED OF
THE GOODS, MIGHT TEND TO INDICATE THAT HE NEVER HAD THEM AND HENCE TO
CONTRADICT FINDINGS OF THE TURNOVER ORDER ITSELF.  WE AGREE WITH THE
COURT OF APPEALS THAT THE TURNOVER ORDER MAY NOT BE ATTACKED IN THE
CONTEMPT PROCEEDINGS BECAUSE IT IS RES JUDICATA ON THIS ISSUE OF
POSSESSION AT THE TIME AS OF WHICH IT SPEAKS.  BUT APPLICATION OF THAT
RULE IN THESE CIVIL CONTEMPT CASES MEANS ONLY THAT THE BANKRUPT,
CONFRONTED BY THE ORDER ESTABLISHING PRIOR POSSESSION, AT A TIME WHEN
CONTINUANCE THEREOF IS THE REASONABLE INFERENCE, IS THEREBY CONFRONTED
BY A PRIMA FACIE CASE WHICH HE CAN SUCCESSFULLY MEET ONLY WITH A
SHOWING OF PRESENT INABILITY TO COMPLY.  HE CANNOT CHALLENGE THE
PREVIOUS ADJUDICATION OF POSSESSION, BUT THAT DOES NOT PREVENT HIM FROM
ESTABLISHING LACK OF PRESENT POSSESSION.  OF COURSE, IF HE OFFERS NO
EVIDENCE AS TO HIS INABILITY TO COMPLY WITH THE TURNOVER ORDER, OR
STANDS MUTE, HE DOES NOT MEET THE ISSUE.  NOR DOES HE DO SO BY EVIDENCE
OR BY HIS OWN DENIALS WHICH THE COURT FINDS INCREDIBLE IN CONTEXT. 
FN8 

BUT THE BANKRUPT MAY BE PERMITTED TO DENY HIS PRESENT POSSESSION AND
TO GIVE ANY EVIDENCE OF PRESENT CONDITIONS OR INTERVENING EVENTS WHICH
CORROBORATE HIM.  THE CREDIBILITY OF HIS DENIAL IS TO BE WEIGHED IN THE
LIGHT OF HIS PRESENT CIRCUMSTANCES.  IT IS EVERYWHERE ADMITTED THAT
EVEN IF HE IS COMMITTED, HE WILL NOT BE HELD IN JAIL FOREVER IF HE DOES
NOT COMPLY.  HIS DENIAL OF POSSESSION IS GIVEN CREDIT AFTER
DEMONSTRATION THAT A PERIOD IN PRISON DOES NOT PRODUCE THE GOODS.  THE
FACT THAT HE HAS BEEN UNDER THE SHADOW OF PRISON GATES MAY BE ENOUGH,
COUPLED WITH HIS DENIAL AND THE TYPE OF EVIDENCE MENTIONED ABOVE, TO
CONVINCE THE COURT THAT HIS IS NOT A WILFUL DISOBEDIENCE WHICH WILL
YIELD TO COERCION. 

THE TRIAL COURT IS OBLIGED TO WEIGH NOT MERELY THE TWO FACTS, THAT A
TURNOVER ORDER HAS ISSUED AND THAT IT HAS NOT BEEN OBEYED, BUT ALL THE
EVIDENCE PROPERLY BEFORE IT IN THE CONTEMPT PROCEEDING IN DETERMINING
WHETHER OR NOT THERE IS ACTUALLY A PRESENT ABILITY TO COMPLY AND
WHETHER FAILURE SO TO DO CONSTITUTES DELIBERATE DEFIANCE WHICH A JAIL
TERM WILL BREAK. 

THIS DUTY HAS NOWHERE BEEN MORE CLEARLY EXPRESSED THAN IN THE ORIEL
CASE:  FN9  "  ...  THERE IS A POSSIBILITY, OF COURSE, OF ERROR AND
HARDSHIP, BUT THE CONSCIENCE OF JUDGES IN WEIGHING THE EVIDENCE UNDER A
CLEAR PERCEPTION OF THE CONSEQUENCES, TOGETHER WITH THE OPPORTUNITY OF
APPEAL AND REVIEW, IF PROPERLY TAKEN, WILL RESTRAIN THE COURTS FROM
RECKLESSNESS OF BANKRUPT'S RIGHTS ON THE ONE HAND AND PREVENT THE
BANKRUPT FROM FLOUTING THE LAW ON THE OTHER.  ...  " 

SUCH A CAREFUL BALANCING WAS SAID TO BE REQUIRED IN TURNOVER
PROCEEDINGS BECAUSE "COERCIVE METHODS BY IMPRISONMENT ARE PROBABLE AND
ARE FORESHADOWED."  FN10  CERTAINLY THE SAME CONSIDERATIONS REQUIRE AS
CAREFUL AND CONSCIENTIOUS WEIGHING OF THE EVIDENCE RELEVANT IN THE
CONTEMPT PROCEEDING.  AT THAT STAGE, IMPRISONMENT IS NOT ONLY PROBABLE
AND FORESHADOWED - IT IS IMMINENT.  AND, WITHOUT SUCH A WEIGHING, IT
BECOMES INEVITABLE. 

 V. 

WE DEAL HERE WITH A CASE IN WHICH THE COURT OF APPEALS WAS PERSUADED
THAT THE BANKRUPT'S DISOBEDIENCE WAS NOT WILFUL.  IT APPEARS, HOWEVER,
THAT THE DISTRICT COURT DID NOT, IN THE CONTEMPT PROCEEDINGS, WEIGH AND
EVALUATE THE EVIDENCE BEFORE IT BUT FELT BOUND ALMOST AUTOMATICALLY TO
ORDER MAGGIO'S COMMITMENT IN DEFERENCE TO CLEAR PRECEDENTS ESTABLISHED
BY THE COURT OF APPEALS.  MOREOVER, THE COURT OF APPEALS AFFIRMED THE
COMMITMENT ORDER ALTHOUGH IT WAS CONVINCED THAT MAGGIO WAS NOT
DELIBERATELY DISOBEYING BUT HAD ESTABLISHED HIS CONTENTION THAT HE WAS
UNABLE TO COMPLY.  ON SUCH FINDINGS THE ORIEL CASE WOULD REQUIRE
MAGGIO'S DISCHARGE EVEN IF HE WERE ALREADY IN JAIL.  IT IS HARDLY
CONSISTENT WITH THAT CASE, OR WITH GOOD JUDICIAL ADMINISTRATION, TO
ORDER HIS COMMITMENT ON FINDINGS THAT REQUIRE HIS IMMEDIATE RELEASE. 

WHEN SUCH A MISAPPREHENSION OF THE LAW HAS LED BOTH COURTS BELOW TO
ADJUDICATE RIGHTS WITHOUT CONSIDERING ESSENTIAL FACTS IN THE LIGHT OF
THE CONTROLLING LAW, THIS COURT WILL VACATE THE JUDGMENTS AND REMAND
THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THE PRINCIPLES LAID DOWN IN THIS COURT'S OPINION.  MANUFACTURERS'
FINANCE CO. V. MCKEY, 294 U.S. 442, 453, GERDES V. LUSTGARTEN, 266 U.S.
321, 327, AND CASES CITED.  FN11  THAT PRACTICE IS APPROPRIATE IN THIS
CASE IN VIEW OF WHAT HAS BEEN SAID HEREIN CONCERNING THE JUDGMENTS
BELOW.  VACATED AND REMANDED. 

FN1  THE COURT OF APPEALS ITSELF SAID:  "  ...  THE SUPREME COURT HAS
NEVER DECIDED IN FAVOR OF THE FICTITIOUS 'PRESUMPTION' HERE INVOKED. 
... "  157 F.2D 951, 954. 

FN2  OTHER CIRCUITS HAVE TREATED THE PRESUMPTION OF CONTINUED
POSSESSION AS ONE WHICH "GROWS WEAKER AS TIME PASSES, UNTIL IT FINALLY
CEASES TO EXIST" (C.C.A.8TH IN MARIN V. ELLIS, 15 F.2D 321) AND AS ONE
"ONLY AS STRONG AS THE NATURE OF THE CIRCUMSTANCES PERMITS" AND WHICH
"LOSES ITS FORCE AND EFFECT AS TIME INTERVENES AND AS CIRCUMSTANCES
INDICATE THAT THE BANKRUPT IS NO LONGER IN POSSESSION OF THE MISSING
GOODS OR THEIR PROCEEDS" (C.C.A.4TH IN BRUNE V. FRAIDIN, 149 F.2D
325).  SEE ALSO COMMENTS IN 95 U. OF PA. L. REV. 789(1947) AND 42 ILL.
L. REV. 396(1947). 

FN3  FOR EXAMPLES OF STATUTORY PROVISIONS, SEE INTERSTATE COMMERCE
ACT, 49 U.S.C. SEC. 12(3); SECURITIES EXCHANGE ACT OF 1934, 15 U.S.C.
SEC. 78(U)(C); PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 15 U.S.C.
SEC. 79(R)(D); COMMUNICATIONS ACT OF 1934, 47 U.S.C. SEC. 409(D);
NATIONAL LABOR RELATIONS ACT, 29 U.S.C. SEC. 161(2); FEDERAL TRADE
COMMISSION ACT, 15 U.S.C. SEC. 49; ADMINISTRATIVE PROCEDURE ACT OF
1946, 5 U.S.C. 1946 ED. SEC. 1005(C); AND ATOMIC ENERGY ACT OF 1946, 42
U.S.C.A. (1947 SUPP.) SEC. 1816(D). 

FN4  278 U.S. 358, 366, QUOTING FROM IN RE EPSTEIN (CITED AS EPSTEIN
V. STEINFELD), 206 F. 568, 570. 

FN5  278 U.S. 358, 364. 

FN6  THE LATE CHIEF JUSTICE SAID "  ...  THE FOLLOWING SEEM TO US TO
LAY DOWN MORE NEARLY THE CORRECT VIEW," AND CITED TOPLITZ V. WALSER, 27
F.2D 196, A CONTEMPT CASE IN WHICH IT IS SAID (AT P. 197) "THE SOLE
QUESTION IS WHETHER THE BANKRUPT IS PRESENTLY ABLE TO COMPLY WITH THE
TURNOVER ORDER PREVIOUSLY MADE AND, ACCORDINGLY, WHETHER HE IS
DISOBEYING THAT ORDER  ...  "; EPSTEIN V. STEINFELD, 210 F. 236, A
TURNOVER PROCEEDING, IN WHICH THE COURT DELINEATES BOTH TURNOVER AND
CONTEMPT PROCEDURES AND STATES THAT A CONTEMPT ORDER SHOULD NOT BE
ISSUED UNLESS THERE IS PRESENT ABILITY TO COMPLY; SCHMID V. ROSENTHAL,
230 F. 818, A TURNOVER CASE, CITING EPSTEIN V. STEINFELD, SUPRA;
FREDERICK V. SILVERMAN, 250 F. 75, A CONTEMPT CASE, RECITING THE
NECESSITY FOR PRESENT ABILITY TO COMPLY; REARDON V. PENSONEAU, 18 F.2D
244, A CONTEMPT CASE, HOLDING THE EVIDENCE THERE INSUFFICIENT TO
ESTABLISH PRESENT INABILITY TO COMPLY; UNITED STATES EX REL. PALEAIS V.
MOORE, 294 F. 852, INVOLVING A COMMITMENT FOR CONTEMPT, STATING "  ...
THE COURT SHOULD BE SATISFIED OF THE PRESENT ABILITY OF THE BANKRUPT TO
COMPLY  ...  "; IN RE FRANKEL, 184 F. 539, A CONTEMPT CASE IN WHICH THE
EVIDENCE WAS HELD INSUFFICIENT TO SHOW PRESENT INABILITY TO COMPLY;
DRAKEFORD V. ADAMS, 98 GA. 722, 25 S.E. 833, A STATE CONTEMPT CASE
REQUIRING PRESENT ABILITY TO COMPLY TO BE "CLEARLY AND SATISFACTORILY
ESTABLISHED"; AND COLLIER, BANKRUPTCY (GILBERT'S ED., 1927) 652.  THE
CUMULATIVE EFFECT OF THESE AUTHORITIES SEEMS CLEARLY TO BE THAT, WHILE
A BANKRUPT'S DENIAL OF PRESENT POSSESSION, STANDING ALONE, MAY NOT BE
SUFFICIENT TO ESTABLISH HIS INABILITY TO PRODUCE THE PROPERTY OR ITS
PROCEEDS, IF THE COURT IS SATISFIED, FROM ALL THE EVIDENCE PROPERLY
BEFORE IT, THAT THE BANKRUPT HAS NOT THE PRESENT ABILITY TO COMPLY, THE
COMMITMENT ORDER SHOULD NOT ISSUE. 

OTHER DECISIONS ARE TO THE SAME EFFECT.  SEE, FOR EXAMPLE, AMERICAN
TRUST CO. V. WALLIS, 126 F. 464; SAMEL V. DODD, 142 F. 68, CERT. DEN. 
201 U.S. 646; IN RE NISENSON, 182 F. 912; IN RE HOLDEN, 203 F. 229,
CERT. DEN.  229 U.S. 621; IN RE MCNAUGHT, 225 F. 511; DITTMAR V.
MICHELSON, 281 F. 116; IN RE DAVISON, 143 F. 673; IN RE MARKS, 176 F.
1018; IN RE ELIAS, 240 F. 448; FREED V. CENTRAL TRUST CO. OF ILLINOIS,
215 F. 873; IN RE NEVIN, 278 F. 601; JOHNSON V. GOLDSTEIN, 11 F.2D 702;
IN RE MAGEN, 14 F.2D 469; ID., 18 F.2D 288; IN RE WALT, 17 F.2D 588;
CLARK V. MILENS, 28 F.2D 457; BERKOWER V. MIELZINER, 29 F.2D 65, CERT.
DEN.  279 U.S. 848; IN RE TABAK, 34 F.2D 209; IN RE WEISBERGER, 43 F.2D
258.  SEE ALSO COLLIER, BANKRUPTCY (14TH ED.)  PP. 244-249; 2 ID. PP.
535-542; 5 REMINGTON, BANKRUPTCY (4TH ED.)  PP. 624-681; 8 C.J.S. PP.
681-686; 6 AM. JUR.  SEC.  369, PP. 752-753. 

FN7  SIMILARLY, THE FOLLOWING CASES INVOLVING CONTEMPT ORDERS FOR
FAILURE TO PAY ALIMONY WERE CITED (278 U.S. AT 365) AS ILLUSTRATING
RULES OF EVIDENCE CONCERNING ABILITY TO COMPLY, "MUCH THE SAME AS ARE
HERE LAID DOWN FOR BANKRUPTCY":  SMILEY V. SMILEY, 99 WASH. 577, 169 P.
962, AFFIDAVIT AS TO LACK OF ABILITY TO COMPLY BEING UNDENIED,
COMMITMENT FOR CONTEMPT BY FAILURE TO PAY HELD ERRONEOUS; BARTON V.
BARTON, 99 KAN. 727, 163 P. 179, EVIDENCE HELD SUFFICIENT TO JUSTIFY
COMMITMENT ALTHOUGH IT IS SAID "  ...  THE DEFENDANT CAN NOT, OF
COURSE, BE COMMITTED FOR THE FAILURE TO DO SOMETHING WHICH IS BEYOND
HIS POWER.  ...  "; IN RE VON GERZABEK, 58 CAL. APP. 230, 208 P. 318, A
SHOWING OF INABILITY TO COMPLY SAID TO BE "THE MOST EFFECTUAL ANSWER"
TO A CONTEMPT ORDER; HURD V. HURD, 63 MINN. 443, 65 N.W. 728,
HEFLEBOWER V. HEFLEBOWER, 102 OHIO ST. 674, 133 N.E. 455, AND FOWLER V.
FOWLER, 61 OKLA. 280, 161 P. 227, DEFENDANT'S EVIDENCE INSUFFICIENT TO
ESTABLISH INABILITY TO COMPLY WHICH WOULD HAVE PREVENTED COMMITMENT. 

FN8  THESE CONCLUSIONS ARE SUPPORTED BY THE CASES CITED IN THE ORIEL
CASE AS LAYING DOWN "MORE NEARLY THE CORRECT VIEW."  SEE NOTE 6, SUPRA.
OF COURSE CASES SUCH AS GOMPERS V. UNITED STATES (233 U.S. 604),
MICHAELSON V. UNITED STATES (266 U.S. 42), PENDERGAST V. UNITED STATES
(317 U.S. 412) AND COOKE V. UNITED STATES (267 U.S. 517), ALL INVOLVING
CRIMINAL CONTEMPT CHARGES, ARE OF NO RELEVANCE HERE, AS WE DEAL ONLY
WITH CIVIL CONTEMPTS.  SEE TEXT, P. 10. 

FN9  278 U.S. AT 364. 

FN10  278 U.S. AT 363. 

FN11  CF. KAY V. UNITED STATES, 303 U.S. 1, 10; PRAIRIE FARMER
PUBLISHING CO. V. INDIANA FARMER'S PUB. CO., 299 U.S. 156, 159;
BUZYNSKI V. LUCKENBACH S.S.CO., 277 U.S. 226, 228. 

SEPARATE OPINION OF MR. JUSTICE BLACK, IN WHICH MR. JUSTICE RUTLEDGE
CONCURS. 

AUGUST 9, 1943, THE REFEREE IN BANKRUPTCY FOUND THAT PETITIONER HAD
POSSESSION OF CERTAIN MERCHANDISE BELONGING TO A BANKRUPT CORPORATION
AND ORDERED HIM TO TURN IT OR THE PROCEEDS OVER TO THE BANKRUPTCY
TRUSTEE.  IN THESE CONTEMPT PROCEEDINGS (APRIL 18, 1945) THE DISTRICT
COURT FOUND THAT PETITIONER HAD FAILED TO PROVE HE NO LONGER HAD
POSSESSION OF THE PROPERTY, AND ORDERED HIM TO BE HELD IN JAIL UNTIL HE
DELIVERED THE PROPERTY OR ITS PROCEEDS TO THE TRUSTEE. 

HAD THE PETITIONER BEEN CHARGED WITH EMBEZZLING THIS SAME PROPERTY
AFTER THE 1943 TURNOVER ORDER, DOUBTLESS NO ONE WOULD EVEN ARGUE THAT A
DOCTRINE OF RES JUDICATA BARRED HIM FROM INTRODUCING EVIDENCE TO SHOW
THAT THE TURNOVER FINDINGS OF POSSESSION WERE WRONG, AND THAT IN TRUTH
HE DID NOT HAVE POSSESSION OF THE PROPERTY OR ITS PROCEEDS EITHER ON,
BEFORE, OR AFTER AUGUST 9, 1943, OR APRIL 18, 1945.  ONE BASIC REASON
WHY THE FINDINGS OF FACT IN A TURNOVER PROCEEDING WOULD NOT BE RES
JUDICATA IN AN EMBEZZLEMENT PROCEEDING IS THAT THE BURDEN OF PROOF IS
DIFFERENT IN THE TWO TYPES OF PROCEEDINGS.  IN THE FIRST, A TURNOVER
PROCEEDING, "CLEAR AND CONVINCING PROOF" IS ENOUGH; IN THE SECOND,
EMBEZZLEMENT, "PROOF BEYOND A REASONABLE DOUBT" IS REQUIRED.  THE
BURDEN OF PROOF IS HEAVIER IN THE EMBEZZLEMENT CASE BECAUSE A JUDGMENT
OF CONVICTION MAY EMBODY A CRIMINAL PUNISHMENT, WHILE A TURNOVER
JUDGMENT DOES NOT - IT IS MERELY AN ORDER FOR THE SURRENDER OF
PROPERTY, SIMILAR TO AN ORDER OF DELIVERY IN A REPLEVIN SUIT. 

THERE IS NO SUCH REASON FOR DIFFERENT MEASUREMENTS OF PROOF IN
CONTEMPT AND EMBEZZLEMENT CASES; CONSEQUENTIALLY, THE TWO ARE ALMOST
IDENTICAL.  FINE, IMPRISONMENT, OR BOTH CAN RESULT FROM A CONVICTION OF
EITHER.  HERE IF THIS CONTEMPT JUDGMENT IS CARRIED OUT AGAINST THE
PETITIONER, HE MIGHT BE COMPELLED TO REMAIN IN PRISON LONGER THAN HE
WOULD HAD HE BEEN CONVICTED AND SENTENCED ON A CHARGE OF EMBEZZLEMENT. 
IT IS TRUE THAT, IF THE COURT WAS CORRECT IN FINDING THAT PETITIONER
HAD POSSESSION OF THE PROPERTY OR ITS PROCEEDS (AND IF HE STILL HAS
IT), HE CARRIES THE KEYS OF THE JAIL IN HIS POCKET, BECAUSE HE CAN TURN
THE PROPERTY OR PROCEEDS OVER TO THE TRUSTEE AT ANY TIME AND THUS GET
HIS FREEDOM.  THE CRUCIAL QUESTION TO PETITIONER IN THIS CONTEMPT
PROCEEDING WAS WHETHER HE HAD POSSESSION OF THE PROPERTY OR ITS
PROCEEDS JUNE 5, 1945.  AND THAT CRUCIAL QUESTION WAS DECIDED AGAINST
PETITIONER BY THE TRIAL COURT WITHOUT HOLDING THAT THE EVIDENCE WAS
SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT PETITIONER STILL HAD
POSSESSION OF THE PROPERTY.    I AM UNWILLING TO AGREE TO APPLICATION
OF A DOCTRINE OF RES JUDICATA THAT RESULTS IN SENDING PEOPLE TO JAIL
FOR CONTEMPT OF COURT UPON A MEASURE OF PROOF SUBSTANTIALLY THE SAME AS
THAT WHICH WOULD SUPPORT THE RENDITION OF A CIVIL JUDGMENT FOR THE
PLAINTIFF ON A PROMISSORY NOTE, AN OPEN ACCOUNT, OR SOME OTHER DEBT. 
ALL COURT PROCEEDINGS, WHETHER DESIGNATED AS CIVIL OR CRIMINAL CONTEMPT
OF COURT OR GIVEN SOME OTHER NAME, WHICH MAY RESULT IN FINE, PRISON
SENTENCES, OR BOTH, SHOULD IN MY JUDGMENT REQUIRE THE SAME MEASURE OF
PROOF, AND THAT MEASURE SHOULD BE PROOF BEYOND A REASONABLE DOUBT.  SEE
GOMPERS V. UNITED STATES, 233 U.S. 604, 610-611; MICHAELSON V. UNITED
STATES, 266 U.S. 42, 66-67; PENDERGAST V. UNITED STATES, 317 U.S. 412,
417-418. 

THE FOREGOING IS WRITTEN ON THE ASSUMPTION THAT THE TURNOVER-CONTEMPT
PROCEDURE IS LEGAL, AN ASSUMPTION WHICH I DO NOT ACCEPT.  I SHARE THE
OPINION OF THE CIRCUIT COURT OF APPEALS THAT THIS PROCEDURE IS
UNAUTHORIZED BY STATUTE AND THAT IT SHOULD NOT BE PERMITTED TO TAKE THE
PLACE OF CRIMINAL PROSECUTIONS FOR FRAUD AS APPARENTLY WAS DONE HERE. 
FN1 THIS WHOLE PROCEDURE SAVORS TOO MUCH OF THE OLD DISCREDITED
PRACTICE OF IMPRISONMENT FOR DEBTS - DEBTS WHICH PEOPLE ARE UNABLE TO
PAY.  FOR HERE, IF PETITIONER DID WRONGFULLY DISPOSE OF THE PROPERTY,
WHETHER OR NOT HE WAS GUILTY OF A CRIME, HE WAS PROBABLY LIABLE IN SOME
SORT OF CIVIL ACTION, BASICALLY SIMILAR TO, IF NOT ACTUALLY, ONE FOR
DEBT.  HAD A JUDGMENT BEEN OBTAINED AGAINST HIM IN SUCH A CIVIL CASE, I
DOUBT IF IT WOULD BE THOUGHT AT THIS PERIOD THAT THE BANKRUPTCY COURT
COULD HAVE THROWN PETITIONER IN JAIL FOR HIS FAILURE TO OBEY WHAT WOULD
HAVE BEEN IN EFFECT A COURT ORDER TO PAY THE DEBT EMBODIED IN THE
JUDGMENT. 

FURTHERMORE, THE FINDING OF POSSESSION OF THE MERCHANDISE AS OF 1943
MAY REST ON AN EVIDENTIAL FOUNDATION FIRM ENOUGH TO SUPPORT A CIVIL
TURNOVER ORDER BUT IT IS TOO SHAKY TO SUPPORT A SENTENCE TO PRISON. 
ACCEPTING THAT FINDING, HOWEVER, THE PRESUMPTION OF PRESENT OR 1945
POSSESSION FROM THE POSSIBLE 1941 OR 1943 POSSESSION ACHIEVES A
PROCEDURAL RESULT WHICH RUNS COUNTER TO BASIC PRACTICES IN OUR SYSTEM
OF LAWS.  FOR AS THE DISTRICT COURT SAID, IT GAVE THE PROSECUTION THE
ADVANTAGE OF A "PRESUMPTION" WHICH, OF ITSELF, WAS HELD TO RELIEVE IT
FROM OFFERING FURTHER PROOF OF PETITIONER'S GUILT IN A CASE WHERE
FORFEITURE OF HIS PERSONAL LIBERTY AND PROPERTY WAS SOUGHT; IT THREW
UPON THE PETITIONER THE BURDEN OF PROVING HIS INNOCENCE.  FN2 

FOR THE FOREGOING REASONS, AMONG OTHERS, I WOULD REVERSE THE JUDGMENT
OF THE CIRCUIT COURT OF APPEALS, WITH DIRECTIONS THAT THE PETITIONER BE
RELEASED AND THAT NO FURTHER CONTEMPT PROCEEDINGS BE INSTITUTED AGAINST
HIM BASED ON HIS REFUSAL TO OBEY THE TURNOVER ORDER. 

FN1  "WE WOULD HOLD THAT A TURNOVER PROCEEDING MAY NOT, VIA A
FICTION, BE SUBSTITUTED FOR A CRIMINAL PROSECUTION SO AS TO DEPRIVE A
MAN OF A BASIC CONSTITUTIONAL RIGHT, THE RIGHT OF TRIAL BY JURY.  WE
WOULD NOTE, TOO, THAT ONE CONSEQUENCE OF THE FICTION IS THAT THE
RESPONDENT MAY BE TWICE PUNISHED FOR THE SAME OFFENSE, SINCE, IF HE IS
LATER INDICTED FOR VIOLATION OF 11 U.S.C.A. SEC. 52(B), HIS
IMPRISONMENT FOR CONTEMPT WILL NOT SERVE AS A DEFENSE.  WE WOULD ADD
THAT NOWHERE IN THE BANKRUPTCY ACT HAS CONGRESS EVEN INTIMATED AN
INTENTION TO AUTHORIZE SUCH RESULTS, AND THAT THEY STEM SOLELY FROM A
JUDGE-MADE GLOSS ON THE STATUTE."  IN RE LUMA CAMERA SERVICE, 157 F.2D
951, 953-954. 

FN2  IN HOLDING PETITIONER IN CONTEMPT, THE DISTRICT COURT SAID:
"RESPONDENT HAS NOT SUSTAINED HIS BURDEN OF SATISFACTORILY ACCOUNTING
FOR THE DISPOSITION OF THE ASSETS BY HIS MERE DENIAL OF POSSESSION
UNDER OATH."  IT THEN MADE THE FOLLOWING FINDING OF FACT:  "4.  THE
RESPONDENT, JOSEPH F. MAGGIO, HAS WHOLLY FAILED TO COMPLY WITH SAID
TURNOVER ORDER, AND HE HAS FAILED TO EXPLAIN TO THE SATISFACTION OF
THIS COURT HIS FAILURE TO COMPLY." 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THIS IS ONE OF THOSE RARE CASES WHERE I FIND MYSELF IN SUBSTANTIAL
AGREEMENT WITH THE DIRECTION AND MAIN VIEWS OF AN OPINION, BUT AM
THEREBY LED TO A DIFFERENT CONCLUSION.  TOO OFTEN WE ARE CALLED UPON TO
DISENTANGLE A SNARLED SKEIN OF FACTS INTO A THREAD OF LEGAL
PRINCIPLES.  IN THIS CASE, THE COURT'S OPINION SEEMS TO ME TO SNARL A
STRAIGHT THREAD OF FACTS INTO A CONFUSING SKEIN OF LEGAL PRINCIPLES. 
IT WAS THE RECORD IN A PRIOR CASE INVOLVING THE SAME LITIGANTS THAT
INVITED CORRECTION OF A RULE OF BANKRUPTCY ADMINISTRATION IN THE SECOND
CIRCUIT.  WE DENIED REVIEW.  FN1 THE RECORD IN THIS CASE PRECLUDES SUCH
CORRECTION, BUT THE COURT'S OPINION IS AN EFFORT TO WHIP THE DEVIL
ROUND THE STUMP. 

THE PRECISE QUESTION BEFORE US MAY BE SIMPLY STATED.  THE DISTRICT
COURT ORDERED THE BANKRUPT TO TURN OVER GOODS WITHHELD BY HIM FROM THE
TRUSTEE.  ON THE BASIS OF TWO PRIOR CASES,  FN2  THE CIRCUIT COURT OF
APPEALS AFFIRMED THIS ORDER, PER CURIAM.  145 F.2D 241.  THESE EARLIER
CASES IN TURN RELIED ON A PREVIOUS CASE.  FN3  ALL THREE ENFORCED A
RULE OF THE SECOND CIRCUIT THAT GOODS IN THE POSSESSION OF A BANKRUPT
ON THE DAY OF BANKRUPTCY ARE PRESUMED TO CONTINUE IN HIS POSSESSION
REGARDLESS OF THE TIME THAT MAY HAVE ELAPSED.  IN ALL THREE CASES, THE
CIRCUIT COURT OF APPEALS HAD AFFIRMED THE TURNOVER ORDERS ALTHOUGH IT
WAS MAINTAINED THAT THE BANKRUPTS COULD NOT OBEY THEM.  FN4  LIKEWISE,
IN ALL THREE CASES, THAT COURT HAD DECLARED ITS IMPOTENCE TO CHANGE
WHAT IT REGARDED AS AN UNTENABLE RULE OF BANKRUPTCY ADMINISTRATION,
ALTHOUGH FASHIONED BY IT AND NOT BY THIS COURT.  FN5  IN ALMOST
IMPRECATING LANGUAGE REVIEW AND REVERSAL BY THIS COURT IN THESE CASES
WERE INVITED N6.  IN ONE OF THESE CASES, THE BANKRUPT FILED A PETITION
FOR CERTIORARI, WHICH THIS COURT DENIED.  FN7  THEN CAME THE PRIOR CASE
INVOLVING THE LITIGANTS NOW BEFORE US, WITH THIS COURT'S REFUSAL TO
REVIEW THE TURNOVER ORDER.  TO BE SURE, THE DENIAL OF A PETITION FOR
CERTIORARI CARRIES NO SUBSTANTIVE IMPLICATIONS.  REFERENCE TO IT HERE
IS RELEVANT AS PROOF OF THE FINALITY WITH WHICH THE TURNOVER ORDER, AS
AFFIRMED BY THE CIRCUIT COURT OF APPEALS, WAS INVESTED. 

IN ORIEL V. RUSSELL, 278 U.S. 358, A UNANIMOUS BENCH, INCLUDING IN
ITS MEMBERSHIP JUDGES OF WIDE EXPERIENCE WITH BANKRUPTCY LAW,  FN8
HELD THAT UPON A CITATION FOR CONTEMPT TO COMPEL OBEDIENCE OF A
TURNOVER ORDER THE ISSUES ADJUDICATED BY THAT ORDER COULD NOT BE
RELITIGATED.  THAT CASE DECIDED NOTHING IF IT DID NOT DECIDE THAT WHAT
THE TURNOVER ORDER ADJUDICATED - THAT THE BANKRUPT WITHHELD CERTAIN
PROPERTY FROM THE BANKRUPT ESTATE AND WAS STILL IN CONTROL OF THIS
PROPERTY ON THE DAY HE WAS ORDERED TO TURN IT OVER - IS THE DEFINITIVE
STARTING POINT FOR CONTEMPT PROCEEDINGS TO EXACT OBEDIENCE TO THE
TURNOVER ORDER.  IN SHORT, THE CONTEMPT PROCEEDINGS MUST PROCEED FROM
THE TURNOVER ORDER AND CANNOT GO BEHIND IT.  WE SHOULD NOT IGNORE THIS
RELEVANT SENTENCE IN ORIEL V. RUSSELL:  "THEREAFTER ON THE MOTION FOR
COMMITMENT THE ONLY EVIDENCE THAT CAN BE CONSIDERED IS THE EVIDENCE OF
SOMETHING THAT HAS HAPPENED SINCE THE TURNOVER ORDER WAS MADE SHOWING
THAT SINCE THAT TIME THERE HAS NEWLY ARISEN AN INABILITY ON THE PART OF
THE BANKRUPT TO COMPLY WITH THE TURNOVER ORDER."  FN9 

THE COURT TODAY REAFFIRMS ORIEL V. RUSSELL.  AT THE SAME TIME IT
MAKES INROAD ON THE PRACTICAL APPLICATION OF ORIEL V. RUSSELL.  ON
VIRTUALLY AN IDENTICAL RECORD  FN10  IT REVERSES WHERE ORIEL V. RUSSELL
AFFIRMED.  THE NATURE AND SCOPE OF THE INROAD ARE UNCERTAIN BECAUSE THE
COURT'S OPINION, TO THE BEST OF MY UNDERSTANDING, LEAVES UNDEFINED HOW
THE DISTRICT COURT IS TO RESPECT BOTH ORIEL V. RUSSELL AND TODAY'S
DECISION. 

ABOUT SOME ASPECTS OF OUR PROBLEM THERE OUGHT TO BE NO DISPUTE.  WE
ARE ALL AGREED THAT WHILE THE BANKRUPT CANNOT RELITIGATE THE
DETERMINATION OF A TURNOVER ORDER THAT HE HAD SUCH AND SUCH GOODS ON
THE DAY OF THE ORDER, HE CAN AVOID THE DUTY OF OBEDIENCE TO THAT ORDER
IF HE "CAN SHOW A CHANGE OF SITUATION AFTER THE TURNOVER ORDER
RELIEVING HIM FROM COMPLIANCE."  FN11  THE RIGHT TO BE RELIEVED FROM
OBEYING THE TURNOVER ORDER BY SUSTAINING THE BURDEN OF INABILITY TO
PERFORM, ON PROOF OF CIRCUMSTANCES NOT QUESTIONING THE TURNOVER ORDER,
HAS NEVER BEEN DISPUTED.  AGAIN, IF A JUDGMENT OF CIVIL CONTEMPT IS
RENDERED AND THE BANKRUPT IS SENT TO JAIL UNTIL HE CHOOSES TO OBEY THE
COURT'S COMMAND, HE WILL NOT BE KEPT THERE WHEN KEEPING HIM NO LONGER
GIVES PROMISE OF PERFORMANCE.  ORIEL V. RUSSELL SO PRONOUNCED.  FN12 

AND SO, SINCE THE FACT THAT THE BANKRUPT HAD POSSESSION OF THE GOODS
ON THE DAY OF THE TURNOVER ORDER IS A FACT THAT CANNOT BE CONTROVERTED
OR RELITIGATED BECAUSE HIS POSSESSION OF THE GOODS ON THAT DAY WAS THE
VERY THING ADJUDICATED, THE CASE REDUCES ITSELF TO THIS SIMPLE
QUESTION:  WHERE, ON FAILURE TO OBEY THE TURNOVER ORDER, THE BANKRUPT
STANDS MUTE, OFFERS NO EVIDENCE AS TO A CHANGE OF CIRCUMSTANCES SINCE
THE ORDER OR OFFERS EVIDENCE OF A KIND WHICH THE DISTRICT COURT MAY
JUSTIFIABLY DISBELIEVE, HAS HE MET HIS BURDEN OF PROOF SO AS TO
PRECLUDE THE DISTRICT COURT FROM ENFORCING OBEDIENCE BY COMMITMENT FOR
CIVIL CONTEMPT? 

ON THE RECORD AND THE FINDINGS OF THE DISTRICT COURT THIS IS THE
PRECISE QUESTION NOW PRESENTED.  THERE IS NOTHING ELSE IN THE RECORD,
EXCEPT JUDGE FRANK'S STATEMENT BELOW THAT THE BANKRUPT WAS ORDERED TO
PERFORM ALTHOUGH THE COURT KNEW THAT IT WAS IMPOSSIBLE FOR HIM TO
PERFORM.  FN13  BUT THIS ASSERTION OF "IMPOSSIBILITY" WAS NOT DERIVED
FROM THE RECORD IN THESE CONTEMPT PROCEEDINGS.  IT DERIVES FROM JUDGE
FRANK'S FAMILIAR HOSTILITY TO WHAT HE DEEMS THE UNFAIRNESS OF HIS
COURT'S RULE OF PRESUMPTION IN ORDERING TURNOVER.  FN14  JUDGE FRANK
HERE MERELY REPEATS HIS CONVICTION THAT A TURNOVER ORDER LIKE THAT
RENDERED AGAINST MAGGIO IS AN ORDER TO TURN OVER GOODS WHICH COULD NOT
BE TURNED OVER.  BUT THAT WAS WATER OVER THE DAM IN THE CONTEMPT
PROCEEDING.  TO GIVE IT LEGAL SIGNIFICANCE WHEN ENFORCEMENT OF THE
TURNOVER ORDER IS IN ISSUE IS TO UTTER CONTRADICTORY THINGS FROM THE
TWO CORNERS OF THE MOUTH.  IT IS SAYING THAT THE TURNOVER ORDER CANNOT
BE RELITIGATED - THAT WE CANNOT GO BACK ON THE ADJUDICATION THAT THE
BANKRUPT HAD THE GOODS AT THE TIME HE WAS ORDERED TO TURN THEM OVER -
BUT WE KNOW HE DID NOT HAVE THE GOODS, SO WE CONTRADICT THE TURNOVER
ORDER AND DO NOT RESPECT IT AS RES JUDICATA. 

I CANNOT RECONCILE MYSELF TO SAYING THAT WE ADHERE TO ORIEL V.
RUSSELL AND YET REJECT ITS ONLY MEANING, NAMELY, THAT WE CANNOT GO
BEHIND THE JUDICIAL DETERMINATION MADE BY THE TURNOVER ORDER THAT THE
BANKRUPT ON SUCH AND SUCH A DAY HAD THE ENUMERATED GOODS.  MOREOVER,
THE AUTHORITIES RELIED UPON IN CHIEF JUSTICE TAFT'S OPINION  FN15  MAKE
IT CLEAR THAT HIS DECISION DID CONTEMPLATE THAT A COERCIVE CONTEMPT
ORDER SHOULD ISSUE WHEN IT APPEARS THAT THE BANKRUPT HAS INTRODUCED NO
EVIDENCE OR, WHAT IS THE SAME, EVIDENCE THAT MAY PROPERLY NOT SATISFY
THE DISTRICT COURT BY ESTABLISHING INCAPACITY TO COMPLY SINCE THE
TURNOVER ORDER.  FN16  IN THIS CASE, THE DISTRICT COURT WAS ENTIRELY
WARRANTED IN FINDING THAT THE BANKRUPT HAD PRODUCED NO EVIDENCE TO
CONTRADICT THE ADJUDICATION OF THE TURNOVER ORDER THAT HE HAD THE GOODS
WHEN HE WAS TOLD TO TURN THEM OVER, UNLESS, IN PLACE OF WHAT IS USUALLY
DEEMED EVIDENCE, AN INFIRMITY HAS BEEN FOUND TO SEEP, BY A PROCESS OF
OSMOSIS, INTO THE TURNOVER ORDER RESPECT FOR WHICH IN ITS ENTIRETY IS
THE STARTING POINT OF OUR PROBLEM. 

THE TIME TO HAVE ACTED ON THE INFERENCE OF IMPOSSIBILITY OF
PERFORMANCE OF THE TURNOVER ORDER, OR TO HAVE TAKEN NOTICE OF THE
IMPRISONING RULE OF THE SECOND CIRCUIT AS TO THE PRESUMPTION OF
CONTINUED POSSESSION OF A BANKRUPT'S WITHHELD GOODS, WAS WHEN WE WERE
ASKED TO REVIEW THE CIRCUIT COURT OF APPEALS' DENIGRATING AFFIRMANCE OF
THE TURNOVER ORDER.  FN17  WHEN WE DECLINED TO REVIEW THAT TURNOVER
ORDER, IT BECAME A FINAL AND BINDING ADJUDICATION.  NEITHER COURT BELOW
WAS UNDER A MISAPPREHENSION AS TO THE APPLICABLE LAW IN THE INSTANT
CONTEMPT PROCEEDING.  THE DISTRICT COURT RELIED ON IN RE SIEGLER, 31
F.2D 972.  BUT SURELY RELIANCE ON A CASE THAT WAS CORRECTLY DECIDED IS
HARDLY AN INDICATION OF MISAPPREHENSION OF LAW.  IF THE SIEGLER
DECISION HAD PRECEDED INSTEAD OF FOLLOWED  FN18  ORIEL V. RUSSELL, IT
MIGHT WELL HAVE BEEN ONE OF THE AUTHORITIES RELIED UPON IN CHIEF
JUSTICE TAFT'S OPINION.  FN19  NOR DO WE HAVE TO SPECULATE AS TO
WHETHER JUDGE FRANK'S CONCLUSION THAT MAGGIO WAS UNABLE TO COMPLY WAS
BASED ON EVIDENCE IN THIS RECORD OR ON DOUBT AS TO THE PROPRIETY OF THE
TURNOVER ORDER.  WE HAVE THE SAME PRINTED RECORD BEFORE US THAT HE HAD
AND IT IS BARREN OF SUCH EVIDENCE.  PRESUMABLY JUDGE FRANK DID NOT
TRAVEL OUTSIDE THIS RECORD AND ACT ON UNDISCLOSED PRIVATE KNOWLEDGE. 
THE WHOLE COURSE OF THIS ISSUE IN THE SECOND CIRCUIT IN RECENT YEARS
MAKES IT OBVIOUS THAT HIS OBSERVATION WAS MERELY ANOTHER ANIMADVERSION
ON THAT CIRCUIT'S PRACTICE IN ISSUING TURNOVER ORDERS.  THE CIRCUIT
COURT OF APPEALS DID NOT PURPORT TO MAKE AN INDEPENDENT EVALUATION OF
MAGGIO'S EVIDENCE BEARING ON HIS INCAPACITY TO OBEY THE TURNOVER
ORDER.  IT WAS BEYOND ITS POWER TO DO SO.  THE CIRCUIT COURT WAS NOT AT
LARGE.  ITS POWER WAS LIMITED TO A CONSIDERATION OF THE JUSTIFIABILITY
OF THE DISTRICT COURT'S FINDINGS ON THE BASIS OF THE RECORD BEFORE THAT
COURT.    THE CURE FOR THIS PROCEDURAL SITUATION, IF CURE IS CALLED
FOR, IS CORRECTION OF THE RULE OF THE SECOND CIRCUIT REGARDING
PRESUMPTIONS IN TURNOVER ORDERS.  FN20  IT OUGHT NOT TO BE DEALT WITH
INDIRECTLY AND AT THE COST OF BECLOUDING THE DOCTRINE OF RES JUDICATA
IN PROCEEDINGS FOR CIVIL CONTEMPT.  IF MAGGIO HAS BECOME THE UNHAPPY
VICTIM OF THE PROCEDURAL SNARL INTO WHICH THE CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT HAS INVOLVED ITSELF BY ITS DECISIONS ON THE
APPEALS OF TURNOVER ORDERS AND BY THIS COURT'S REFUSAL TO REVIEW SUCH
ADJUDICATIONS, THE LAW IS NOT WITHOUT AMPLE REMEDIES.  THE DISTRICT
COURT HAS POWER TO DISCHARGE A CONTEMNOR WHEN CONFINEMENT HAS BECOME
FUTILE, OR RELEASE MAY BE HAD THROUGH USE OF HABEAS CORPUS, WHICH, IN
THE NOW CLASSIC LANGUAGE OF MR. JUSTICE HOLMES, "CUTS THROUGH ALL FORMS
AND GOES TO THE VERY TISSUE OF THE STRUCTURE.  IT COMES IN FROM THE
OUTSIDE, NOT IN SUBORDINATION TO THE PROCEEDINGS  ...  " FRANK V.
MANGUM, 237 U.S. 309, 346.  THESE ARE MEANS AVAILABLE TO CORRECT
WHATEVER SPECIFIC HARDSHIP THIS CASE MAY PRESENT WITHOUT GENERATING
CLOUDINESS INDETERMINATE IN RANGE UPON A LEGAL PRINCIPLE OF SUCH SOCIAL
SIGNIFICANCE AS THAT OF RES JUDICATA AND UPON A REMEDY SO VITAL AS
CIVIL CONTEMPT FOR THE STURDY ADMINISTRATION OF JUSTICE. 

HOW IS THE CONSCIENTIOUS DISTRICT COURT TO CARRY OUT THE DIRECTIONS
CONVEYED BY THE COURT'S OPINION?  IF THE DISTRICT COURT GIVES
UNQUESTIONED RESPECT, AS IT IS TOLD TO DO, TO THE TURNOVER ORDER OF
AUGUST 9, 1943, IT WILL START WITH THE FACT THAT ON AUGUST 9, 1943, THE
BANKRUPT WAS ABLE TO COMPLY WITH THAT ORDER.  WITH THAT AS A STARTING
POINT, WILL THE DISTRICT COURT NOT BE ENTITLED TO FIND AGAIN, AS IT HAS
ALREADY FOUND,  FN21  THAT NOTHING PRESENTED BY THE BANKRUPT IN
EXCULPATION FOR NOT COMPLYING WITH THE TURNOVER ORDER DISPROVES THAT HE
CONTINUED TO HAVE THE PROPERTY, WHICH HE WAS FOUND TO HAVE HAD AS OF
AUGUST 9, 1943?  IF THE DISTRICT COURT SHOULD SO FIND, WOULD NOT THE
CIRCUIT COURT OF APPEALS AND THIS COURT, IF THE CASE CAME HERE FOR
REVIEW, BE DUTY BOUND TO HOLD THAT, ON THE BASIS OF THE SITUATION AS
ADJUDICATED BY THE TURNOVER ORDER, THE DISTRICT COURT COULD REASONABLY
MAKE SUCH A FINDING?  OR IS THE DISTRICT COURT TO INFER THAT IN VIEW OF
THE SNARL INTO WHICH THESE PROCEEDINGS HAVE GOT BY REASON OF THE
FAILURE TO UPSET THE TURNOVER ORDER WHEN DIRECTLY UNDER REVIEW, THIS
COURT WAS INDULGING IN BENIGN JUDICIAL WINKING - THAT WHILE THE FACT OF
THE POSSESSION OF THE PROPERTY HAD BEEN ADJUDICATED BY THE TURNOVER
ORDER AND COULD NOT VERBALLY BE QUESTIONED, THE DISTRICT COURT NEED NOT
ACCEPT THE DETERMINATION OF THAT ORDER AS FACTS?  BUT IF THE DISTRICT
COURT MAY SO DRAIN THE ADJUDICATION OF THE TURNOVER ORDER OF ITS ONLY
LEGAL SIGNIFICANCE, WHY ASSERT THAT ORIEL V. RUSSELL IS LEFT WITHOUT A
SCRATCH?  WHY REAFFIRM THAT AN ADJUDICATION SUSTAINING A TURNOVER ORDER
MAY NOT BE RELITIGATED WHEN OBEDIENCE IS SOUGHT TO SUCH TURNOVER
ORDER?  THESE ARE QUESTIONS WHICH WILL CONFRONT NOT MERELY THE DISTRICT
JUDGE TO WHOM THIS CASE WILL BE REMANDED.  AFTER ALL, WE ARE CONCERNED
WITH THE PRACTICAL ADMINISTRATION OF THE BANKRUPTCY ACT BY DISTRICT
JUDGES ALL OVER THE UNITED STATES. 

BY ABSTAINING FROM EXPRESSING VIEWS REGARDING THE REQUISITES OF A
TURNOVER ORDER, I MEAN NEITHER TO AGREE NOR DISAGREE WITH OBSERVATIONS
MADE BY THE COURT.  THERE HAS BEEN OPPORTUNITY IN THE PAST FOR
ADJUDICATION OF THAT MATTER, AND THERE MAY BE SUCH AN OPPORTUNITY IN
THE FUTURE.  THIS CASE DOES NOT PRESENT IT.  FROM ALL OF WHICH I
CONCLUDE THAT THE JUDGMENT BELOW SHOULD BE AFFIRMED, LEAVING FOR
ANOTHER DAY, WHEN THE OCCASION MAKES IT APPROPRIATE, TO CONSIDER
DIRECTLY AND EXPLICITLY THE PRINCIPLE THAT SHOULD GOVERN THE ISSUE OF
TURNOVER ORDERS BY BANKRUPTCY COURTS.  FN22 

FN1  324 U.S. 841. 

FN2  ROBBINS V. GOTTBETTER, 134 F.2D 843, AND COHEN V. JESKOWITZ, 144
F.2D 39. 

FN3  SELIGSON V. GOLDSMITH, 128 F.2D 977. 

FN4  SELIGSON V. GOLDSMITH, 128 F.2D 977, 978-79; ROBBINS V.
GOTTBETTER, 134 F.2D 843, 844; COHEN V. JESKOWITZ, 144 F.2D 39,
41(CONCURRING OPINION OF FRANK, J.). 

FN5  PRESUMABLY, THIS AVOWED INABILITY OF THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT TO FREE ITSELF FROM ITS OWN PRIOR
DECISION IN THIS SITUATION IS NOT THE REFLECTION OF A PRINCIPLE SIMILAR
TO THAT WHICH BINDS THE HOUSE OF LORDS TO ITS PAST PRECEDENTS.  IT MUST
BE ATTRIBUTABLE TO THE FACT THAT THE SECOND CIRCUIT HAS SIX CIRCUIT
JUDGES WHO NEVER SIT EN BANC AND THAT PRESUMABLY THEY DEEM IT
UNDESIRABLE FOR THE MAJORITY OF ONE PANEL TO HAVE A DIFFERENT VIEW FROM
THAT OF A MAJORITY OF ANOTHER PANEL. 

FN6  128 F.2D AT 979; 134 F.2D AT 844; 144 F.2D AT 40-41. 

FN7  IN THE FIRST TWO OF THESE CASES, THE BANKRUPT DID NOT SEEK
REVIEW IN THIS COURT; IN THE JESKOWITZ CASE, THE BANKRUPT TOOK THE
HINT, BUT THIS COURT DENIED CERTIORARI.  323 U.S. 787. 

FN8  JUDGE A. N. HAND'S OBSERVATION CONCURRING, IN THE ROBBINS CASE,
134 F.2D AT 845, IS ALSO PERTINENT:  "  ... ALL THE JUSTICES OF A COURT
OF WHICH THOSE EXCEPTIONALLY ALERT GUARDIANS OF CIVIL RIGHTS, JUSTICES
HOLMES, BRANDEIS AND STONE, WERE MEMBERS, UNANIMOUSLY CONCURRED IN THE
OPINION OF CHIEF JUSTICE TAFT  ...  " 

FN9  278 U.S. AT 363. 

FN10  SEE APPENDIX. 

FN11  278 U.S. AT 364. 

FN12  "'I HAVE KNOWN A BRIEF CONFINEMENT TO PRODUCE THE MONEY
PROMPTLY, THUS JUSTIFYING THE COURT'S INCREDULITY, AND I HAVE ALSO
KNOWN IT TO FAIL.  WHERE IT HAS FAILED, AND WHERE A REASONABLE INTERVAL
OF TIME HAS SUPPLIED THE PREVIOUS DEFECT IN THE EVIDENCE, AND HAS MADE
SUFFICIENTLY CERTAIN WHAT WAS DOUBTFUL BEFORE, NAMELY, THE BANKRUPT'S
INABILITY TO OBEY THE ORDER, HE HAS ALWAYS BEEN RELEASED, AND I NEED
HARDLY SAY THAT HE WOULD ALWAYS HAVE THE RIGHT TO BE RELEASED, AS SOON
AS THE FACT BECOMES CLEAR THAT HE CAN NOT OBEY.'"  278 U.S. AT 366,
QUOTING FROM JUDGE MCPHERSON'S OPINION IN IN RE EPSTEIN, 206 F. 568,
570. 

FN13  "ALTHOUGH WE KNOW THAT MAGGIO CANNOT COMPLY WITH THE ORDER, WE
MUST KEEP A STRAIGHT FACE AND PRETEND THAT HE CAN, AND MUST THUS AFFIRM
ORDERS WHICH FIRST DIRECT MAGGIO 'TO DO AN IMPOSSIBILITY, AND THEN
PUNISH HIM FOR REFUSAL TO PERFORM IT.'"  157 F.2D AT 955.  JUDGE FRANK
MADE THIS STATEMENT CONCERNING THE PRESUMPTION OF CONTINUED POSSESSION
IN TURNOVER ORDER PROCEEDINGS, AND WAS NOT ADDRESSING HIS REMARKS TO
THE RECORD BEFORE HIM IN THE CONTEMPT PROCEEDING.  THE DICTUM BEGAN
WITH THIS SENTENCE:  "WERE THIS A CASE OF FIRST IMPRESSION INVOLVING
THE VALIDITY OF A TURNOVER ORDER, WE WOULD NOT ACCEPT SUCH REASONING." 
157 F.2D 951, 953.  THE "THUS" IN HIS STATEMENT INDICATES HOSTILITY TO
THE BASIS OF THE TURNOVER ORDER BECAUSE OF A VIRUS WHICH THE LOWER
COURT FEELS UNABLE TO EXTRACT BUT WHICH AUTOMATICALLY INFECTS THE
CONTEMPT PROCEEDINGS. 

FN14  "WITH THE TURNOVER ORDER ONCE SUSTAINED, THE CONTEMPT ORDER
NECESSARILY FOLLOWED."  ID. AT 954. 

FN15  278 U.S. 358, 364. 

FN16  THE CHIEF JUSTICE SAID "  ...  THE FOLLOWING SEEM TO US TO LAY
DOWN MORE NEARLY THE CORRECT VIEW," AND CITED TOPLITZ V. WALSER, 27
F.2D 196, A THIRD CIRCUIT CONTEMPT CASE IN WHICH IT IS SAID (AT P. 197)
"IT THEREFORE DEVOLVES UPON THE BANKRUPT IN THE LATTER (CONTEMPT)
PROCEEDING TO SHOW HOW AND WHEN THE PROPERTY PREVIOUSLY ADJUDGED IN HIS
POSSESSION OR CONTROL HAD PASSED OUT OF HIS POSSESSION OR CONTROL  ...
THE TROUBLE WITH THE EVIDENCE IN THE CONTEMPT PROCEEDING, THE ONLY
EVIDENCE PROPERLY HERE FOR REVIEW, IS THAT IT IS DIRECTED TO THE ISSUE
OF THE BANKRUPT'S POSSESSION AND CONTROL OF PROPERTY AT THE DATE OF
BANKRUPTCY RAISED AND DEFINITELY DECIDED AGAINST HER IN THE TURNOVER
PROCEEDING  ...  THOUGH NOT IN FORM THIS IS IN SUBSTANCE A COLLATERAL
ATTACK UPON THE NOW FINALLY ESTABLISHED TURNOVER ORDER, WHICH OF COURSE
IS NOT PERMISSIBLE."  ; EPSTEIN V. STEINFELD, 210 F. 236, A TURNOVER
PROCEEDING, IN WHICH THE THIRD CIRCUIT DELINEATED ITS PROCEDURE,
DIFFERENT FROM THAT FOLLOWED IN THE SECOND CIRCUIT, WHEREBY IF THE
REFEREE FOUND A SHORTAGE AT THE TIME OF BANKRUPTCY THE TURNOVER ORDER
WAS AUTOMATICALLY ENTERED, AND THE QUESTION OF PRESENT POSSESSION OR
ABILITY TO COMPLY WITH THAT ORDER WAS LEFT OPEN FOR POSSIBLE CONTEMPT
PROCEEDINGS, THE PRESUMPTION OF CONTINUED POSSESSION BEING APPLIED IN
SUCH PROCEEDINGS SINCE THE BANKRUPT HAD TO SHOW THAT BY REASON OF
EVENTS OCCURRING SINCE THE BANKRUPTCY HE WAS UNABLE TO COMPLY (CF. IN
RE EISENBERG, 130 F.2D 160)(THIS DISTINCTION HAS NO REAL BEARING ON THE
INSTANT ISSUE AS TO EITHER COLLATERAL ATTACK OR THE PRESUMPTION OF
CONTINUED POSSESSION); SCHMID V. ROSENTHAL, 230 F. 818, A THIRD CIRCUIT
TURNOVER CASE, CITING EPSTEIN V. STEINFELD, SUPRA; FREDERICK V.
SILVERMAN, 250 F. 75, A THIRD CIRCUIT CONTEMPT CASE CITING EPSTEIN V.
STEINFELD, SUPRA; REARDON V. PENSONEAU, 18 F.2D 244, AN EIGHTH CIRCUIT
CONTEMPT CASE, HOLDING THAT THE BANKRUPT HAD NOT MET HIS BURDEN OF
ESTABLISHING PRESENT INABILITY TO COMPLY, IN WHICH IT IS SAID (AT PP.
245-46) "THEY (TURNOVER ORDERS) ESTABLISH THE BANKRUPT'S POSSESSION AND
CONTROL ON THE DAY THE REFEREE'S ORDER WAS MADE.  THE BURDEN WAS ON HIM
TO SHOW WHAT DISPOSITION HAD BEEN MADE OF THE $6,900.  UNTIL THAT
SHOWING IS MADE RELIEVING HIM OF AN INTENTIONAL LOSS OF ITS POSSESSION
AND CONTROL, IT MUST BE PRESUMED THAT HE STILL HAS IT.  ...  A BANKRUPT
CANNOT ESCAPE AN ORDER FOR THE SURRENDER OF PROPERTY BELONGING TO HIS
ESTATE 'BY SIMPLY DENYING UNDER OATH THAT HE HAS IT.'"; UNITED STATES
EX REL. PALEAIS V. MOORE, 294 F. 852, A SECOND CIRCUIT HABEAS CORPUS
CASE FOLLOWING A COMMITMENT FOR CONTEMPT, STATING (AT P. 857) "IF, AT
THE TIME THE TURN-OVER ORDER WAS MADE, THE BOOKS AND PAPERS WERE IN THE
BANKRUPT'S HANDS, THE PRESUMPTION IS THAT THEY CONTINUED TO BE IN HIS
POSSESSION OR UNDER HIS CONTROL UNTIL HE HAS SATISFACTORILY ACCOUNTED
TO THE COURT OF BANKRUPTCY FOR THEIR SUBSEQUENT DISPOSITION OR
DISAPPEARANCE.  THE BURDEN IS UPON HIM SATISFACTORILY TO SO ACCOUNT FOR
THEM.  HE CANNOT ESCAPE AN ORDER FOR THEIR SURRENDER BY SIMPLY DENYING
UNDER OATH THAT HE NO LONGER HAS THEM."; IN RE FRANKEL, 184 F. 539, A
CONTEMPT CASE IN WHICH L. HAND, THEN A DISTRICT JUDGE, REFUSED TO
COMMIT FOR CONTEMPT BECAUSE HE DID NOT DEEM THE TURNOVER ORDER BINDING
AS RES JUDICATA, BUT ON REHEARING REVERSED HIMSELF, HOLDING THAT THE
BANKRUPT COULD NOT SHOW PRESENT INABILITY BY EVIDENCE CONSTITUTING AN
INDIRECT ATTACK ON THE TURNOVER ORDER, STATING (AT P. 542) "THEREFORE,
IN SO FAR AS THE (TURNOVER) ORDER DIRECTS ANYONE TO DO ANYTHING, HE MAY
NOT IN THE CONTEMPT PROCEEDING QUESTION THE PROPRIETY OF THE DIRECTION;
AND IN SO FAR AS THE ORDER DETERMINES AN EXISTING FACT, WHICH IS
NECESSARY IN LAW TO THE VALIDITY OF THE DIRECTION, HE MAY NOT QUESTION
ITS TRUTH.  TO QUESTION SUCH A FACT IS TO QUESTION THE VALIDITY OF THE
DIRECTION WHICH DEPENDS UPON IT, AND IS ONLY AN INDIRECT WAY OF
REVIEWING THE ORDER.  THEREFORE NOW TO DENY THE FACT THAT THE BANKRUPT
HAD THE MONEY IN HIS POSSESSION IS IN THIS CASE TO ASSERT THAT THE
ORDER DIRECTING HIM TO PAY IT OVER WAS ERRONEOUS.  ON THIS ACCOUNT,
THEREFORE, THAT FACT IS CONCLUDED, ONCE IT BE GRANTED THAT IT WAS
NECESSARY TO THE VALIDITY OF THE ORDER, WHICH I HAVE SHOWN.  QUITE
RELUCTANTLY, THEREFORE, I CAN ONLY CONCLUDE THAT I WAS WRONG ORIGINALLY
TO INQUIRE INTO THE MERITS, AND THAT A COMMITTAL MUST ISSUE."  THE
CUMULATIVE EFFECT OF THESE AUTHORITIES IS THAT A BANKRUPT'S DENIAL OF
PRESENT POSSESSION, STANDING ALONE, IS NOT SUFFICIENT TO ESTABLISH HIS
INABILITY TO PRODUCE THE PROPERTY OR ITS PROCEEDS, AND THAT THE
BANKRUPTCY COURT WILL NOT PERMIT THE BANKRUPT TO PROVE PRESENT
INABILITY TO COMPLY WITH THE TURNOVER ORDER BY EVIDENCE WHICH
INDIRECTLY CONSTITUTES A COLLATERAL ATTACK ON THAT ORDER. 

FN17  FOR ALMOST FORTY YEARS, THE SECOND CIRCUIT HAS TENACIOUSLY
ABIDED BY THE PRESUMPTION OF CONTINUED POSSESSION.  WHILE THIS
PRESUMPTION WAS PREVIOUSLY SUB SILENTIO UTILIZED (E.G., IN RE
SCHLESINGER, 102 F. 117, AFFIRMING 97 F. 930), IN RE STAVRAHN IN 1909,
174 F. 330, APPEARS TO HAVE BEEN THE SECOND CIRCUIT'S CASE OF FIRST
IMPRESSION, AND THE DECISION THAT SIRED THE PRESUMPTION.  THERE THE
COURT STATED THAT THE BANKRUPT COULD NOT DEFEND AGAINST A CONTEMPT
CITATION FOLLOWING A TURNOVER ORDER ON THE ASSERTION THAT HE HAD NEVER
TAKEN THE ASSETS IN QUESTION, BUT HAD TO COME FORWARD WITH SOME
REASONABLE EXPLANATION AS TO WHAT HAD BECOME OF THE ASSETS SINCE THE
TURNOVER ORDER.  IN 1912, THE SECOND CIRCUIT REITERATED THE REASONING
OF ITS EARLIER DECISION IN IN RE WEBER CO., 200 F. 404.  THE
PRESUMPTION HAD BEEN SOMEWHAT INARTICULATELY PHRASED IN THE EARLIER
OPINION, AND THE COURT IN THIS CASE COMMENDED THE DISTRICT JUDGE FOR
APTLY CARRYING OUT THE MANDATE OF THE STAVRAHN DECISION.  THE CASES UP
TO 1925 AND BEFORE THE ORIEL CASE ARE LISTED AND DISCUSSED AT LENGTH IN
IN RE H. MAGEN CO., 10 F.2D 91, IN WHICH THE COURT OBSERVED THAT "THE
LAW RELATING TO TURN-OVER ORDERS IS PRETTY WELL ESTABLISHED IN THIS
CIRCUIT."  10 F.2D AT 93.  IN RE SIEGLER, NOTE 18 SUPRA, WAS DECIDED
THREE MONTHS AFTER THIS COURT'S DECISION IN THE ORIEL CASE.  THEN CAME:
DANISH V. SOFRANSKI, 93 F.2D 424; IN RE PINSKY-LAPIN & CO., 98 F.2D
776; SELIGSON V. GOLDSMITH, NOTE 3 SUPRA; ROBBINS V. GOTTBETTER, NOTE 2
SUPRA; COHEN V. JESKOWITZ, NOTE 2 SUPRA; AND THE PER CURIAM AFFIRMANCE
OF THE TURNOVER ORDER IN THE INSTANT BANKRUPTCY PROCEEDINGS. 

FN18  "ANY DIFFERENCE OF OPINION RESPECTING THE FORCE AND EFFECT OF A
TURNOVER ORDER, WHICH MAY HAVE PREVAILED BEFORE THE DECISION OF THE
SUPREME COURT, IN PRELA V. HUBSHMAN (COMPANION CASE TO ORIEL V.
RUSSELL)  ...  IS NOW OUT OF PLACE IN ANY DISCUSSION OF THE SUBJECT." 
31 F.2D AT 973. 

FN19  CF. IN RE FRANKEL, NOTE 16 SUPRA. 

FN20  CF. BRUNE V. FRAIDIN, 149 F.2D 325.    FN21  IN THE OPINION
DATED APRIL 18, 1945, HOLDING PETITIONER IN CONTEMPT OF COURT, THE
DISTRICT COURT STATED THAT:  "RESPONDENT (PETITIONER HERE) HAS NOT
SUSTAINED HIS BURDEN OF SATISFACTORILY ACCOUNTING FOR THE DISPOSITION
OF THE ASSETS BY HIS MERE DENIAL OF POSSESSION UNDER OATH."  AND THAT
COURT'S FOURTH FINDING OF FACT WAS AS FOLLOWS:  "THE RESPONDENT, JOSEPH
F. MAGGIO, HAS WHOLLY FAILED TO COMPLY WITH SAID TURNOVER ORDER, AND HE
HAS FAILED TO EXPLAIN TO THE SATISFACTION OF THIS COURT HIS FAILURE TO
COMPLY." 

FN22  "THE PROCEEDINGS IN THESE TWO CASES HAVE BEEN SO LONG DRAWN OUT
BY EFFORTS ON THE PART OF THE BANKRUPTS TO RETRY THE ISSUE PRESENTED ON
THE MOTION TO TURN OVER AS TO BE, OF THEMSELVES, CONVINCING ARGUMENT
THAT IF THE BANKRUPTCY STATUTE IS NOT TO BE FRITTERED AWAY IN CONSTANT
DELAYS AND FAILURES OF ENFORCEMENT OF LAWFUL ORDERS, THE RULE WE HAVE
LAID DOWN IS THE PROPER ONE."  278 U.S. AT 363. 

APPENDIX TO OPINION OF FRANKFURTER, J.

        (CHART OMITTED)
..END :











MUSSER V. UTAH, 333 U.S. 95 


NO. 60.  ARGUED NOVEMBER 10, 1947.  - REARGUED JANUARY 5, 1948.  -
DECIDED FEBRUARY 9, 1948.  - 110 UTAH 533, 175 P.2D 724, VACATED AND
REMANDED. 


WHEN THERE ARE INHERENT IN AN APPEAL TO THIS COURT FROM A JUDGMENT OF
THE HIGHEST COURT OF A STATE QUESTIONS OF STATE LAW WHICH WERE NOT
PRESENTED TO, OR CONSIDERED BY, THE HIGHEST COURT OF THE STATE, THIS
COURT WILL VACATE THE JUDGMENT AND REMAND THE CAUSE TO THAT COURT FOR
CONSIDERATION OF THOSE QUESTIONS OF STATE LAW.  PP. 96-98. 

MUSSER ET AL. V. UTAH. 

APPEAL FROM THE SUPREME COURT OF UTAH. 

THE SUPREME COURT OF UTAH AFFIRMED A CONVICTION OF APPELLANTS FOR
CONSPIRACY "TO COMMIT ACTS INJURIOUS TO PUBLIC MORALS" IN VIOLATION OF
THE UTAH CODE ANN., 1943, SEC. 103-11-1.  110 UTAH 533, 175 P.2D 724. 
JUDGMENT VACATED AND CAUSE REMANDED, P. 98. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS SOUGHT REVIEW BY THIS COURT OF A DECISION BY THE
SUPREME COURT OF UTAH ON THE GROUND THAT THE STATE CONVICTED THEM IN
VIOLATION OF THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION.  IN
THE TRIAL COURT A MOTION TO DISMISS THE CHARGE AT THE CLOSE OF THE
EVIDENCE BROADLY INDICATED RELIANCE ON THE FOURTEENTH AS WELL AS THE
FIRST AMENDMENT, AND SUCH RELIANCE WAS INDICATED IN REQUESTS FOR
INSTRUCTIONS.  A PRELIMINARY MOTION TO QUASH THE INFORMATION WAS STATED
IN BROAD TERMS WHICH IT IS CLAIMED ADMITTED ARGUMENT OF ANY FEDERAL
GROUNDS.  TRIAL RESULTED IN CONVICTION AND THE SUPREME COURT OF THE
STATE OVERRULED ALL CONSTITUTIONAL OBJECTIONS AND AFFIRMED. 

ON ARGUMENT IN THIS COURT, INQUIRIES FROM THE BENCH SUGGESTED A
FEDERAL QUESTION WHICH HAD NOT BEEN SPECIFICALLY ASSIGNED BY DEFENDANTS
IN THIS COURT, NOR IN ANY COURT BELOW, ALTHOUGH GENERAL TRANSGRESSION
OF THE FOURTEENTH AMENDMENT HAD BEEN ALLEGED.  THIS QUESTION IS WHETHER
THE UTAH STATUTE, FOR VIOLATION OF WHICH THE APPELLANTS ARE AMERCED, IS
SO VAGUE AND INDEFINITE THAT IT FAILS ADEQUATELY TO DEFINE THE OFFENSE
OR TO GIVE REASONABLE STANDARDS FOR DETERMINING GUILT.  THE QUESTION
GREW OUT OF THESE CIRCUMSTANCES: 

DEFENDANTS WERE TRIED ON AN INFORMATION WHICH CHARGED VIOLATION OF
SEC. 103-11-1, UTAH CODE ANN. 1943, IN THAT THEY CONSPIRED "TO COMMIT
ACTS INJURIOUS TO PUBLIC MORALS AS FOLLOWS, TO-WIT: ...  "  IT THEN
SPECIFIED ACTS WHICH AMOUNT BRIEFLY TO CONSPIRING TO COUNSEL, ADVISE,
AND PRACTICE POLYGAMOUS OR PLURAL MARRIAGE, AND IT SET FORTH A SERIES
OF OVERT ACTS IN FURTHERANCE THEREOF.  THE SUPREME COURT CONSIDERED
THAT THE PROSECUTION WAS UNDER PARAGRAPH (5) OF 103-11-1 WHICH, SO FAR
AS RELEVANT, DEFINES CONSPIRACY, "(5) TO COMMIT ANY ACT INJURIOUS TO
THE PUBLIC HEALTH, TO PUBLIC MORALS, OR TO TRADE OR COMMERCE, OR FOR
THE PERVERSION OR OBSTRUCTION OF JUSTICE OR THE DUE ADMINISTRATION OF
THE LAWS  ...  " 

IT IS OBVIOUS THAT THIS IS NO NARROWLY DRAWN STATUTE.  WE DO NOT
PRESUME TO GIVE AN INTERPRETATION AS TO WHAT IT MAY INCLUDE.  STANDING
BY ITSELF, IT WOULD SEEM TO BE WARRANT FOR CONVICTION FOR AGREEMENT TO
DO ALMOST ANY ACT WHICH A JUDGE AND JURY MIGHT FIND AT THE MOMENT
CONTRARY TO HIS OR ITS NOTIONS OF WHAT WAS GOOD FOR HEALTH, MORALS,
TRADE, COMMERCE, JUSTICE OR ORDER.  IN SOME STATES THE PHRASE
"INJURIOUS TO PUBLIC MORALS" WOULD BE LIKELY TO PUNISH ACTS WHICH IT
WOULD NOT PUNISH IN OTHERS BECAUSE OF THE VARYING POLICIES ON SUCH
MATTERS AS USE OF CIGARETTES OR LIQUOR AND THE PERMISSIBILITY OF
GAMBLING.  THIS LED TO THE INQUIRY AS TO WHETHER THE STATUTE ATTEMPTS
TO COVER SO MUCH THAT IT EFFECTIVELY COVERS NOTHING.  STATUTES DEFINING
CRIMES MAY FAIL OF THEIR PURPOSE IF THEY DO NOT PROVIDE SOME REASONABLE
STANDARDS OF GUILT.  SEE, FOR EXAMPLE, UNITED STATES V. COHEN GROCERY
CO., 255 U.S. 81.  LEGISLATION MAY RUN AFOUL OF THE DUE PROCESS CLAUSE
BECAUSE IT FAILS TO GIVE ADEQUATE GUIDANCE TO THOSE WHO WOULD BE LAW
ABIDING, TO ADVISE DEFENDANTS OF THE NATURE OF THE OFFENSE WITH WHICH
THEY ARE CHARGED, OR TO GUIDE COURTS IN TRYING THOSE WHO ARE ACCUSED. 

WHEN THE ADEQUACY OF THIS STATUTE IN THESE RESPECTS WAS QUESTIONED,
THE STATE ASKED AND WAS GRANTED REARGUMENT HERE.  REHEARING CONVINCES
US THAT QUESTIONS ARE INHERENT IN THIS APPEAL WHICH WERE NOT PRESENTED
TO OR CONSIDERED BY THE UTAH SUPREME COURT AND WHICH INVOLVE
DETERMINATION OF STATE LAW.  WE RECOGNIZE THAT THE PART OF THE STATUTE
WE HAVE QUOTED DOES NOT STAND BY ITSELF AS THE LAW OF UTAH BUT IS PART
OF THE WHOLE BODY OF COMMON AND STATUTE LAW OF THAT STATE AND IS TO BE
JUDGED IN THAT CONTEXT.  IT IS ARGUED THAT WHILE PARAGRAPH (5) AS
QUOTED IS ADMITTEDLY VERY GENERAL, THE PRESENT CHARGE IS SUSTAINABLE
UNDER PARAGRAPH (1) THEREOF WHICH MAKES A CRIME OF ANY CONSPIRACY TO
COMMIT A CRIME AND THAT THE SWEEP OF PARAGRAPH (5) IS OR MAY BE SO
LIMITED BY ITS CONTEXT OR BY JUDICIAL CONSTRUCTION AS TO SUPPLY MORE
DEFINITE STANDARDS FOR DETERMINING GUILT.  IT IS ALSO SAID THAT THE
POINT, SO FAR AS THIS CASE IS CONCERNED, HAS BEEN WAIVED OR LOST
BECAUSE THERE WAS NO TIMELY OR SUFFICIENT ASSIGNMENT OF IT AS GROUND
FOR DISMISSAL TO COMPLY WITH STATE PRACTICE.  WE BELIEVE WE SHOULD NOT
PASS UPON THE QUESTIONS RAISED HERE UNTIL THE SUPREME COURT OF UTAH HAS
HAD OPPORTUNITY TO DEAL WITH THIS ULTIMATE ISSUE OF FEDERAL LAW AND
WITH ANY STATE LAW QUESTIONS RELEVANT TO IT. 

THIS TRIAL WAS NOT CONDUCTED IN FEDERAL COURT NOR FOR VIOLATION OF
FEDERAL LAW.  IT IS A PROSECUTION BY THE STATE, IN ITS COURTS, TO
VINDICATE ITS OWN LAWS.  OUR SOLE CONCERN WITH IT IS TO SEE THAT NO
CONVICTION CONTRARY TO A VALID OBJECTION RAISED UNDER THE FOURTEENTH
AMENDMENT IS UPHELD.  WHAT THE STATUTES OF A STATE MEAN, THE EXTENT TO
WHICH ANY PROVISION MAY BE LIMITED BY OTHER ACTS OR BY OTHER PARTS OF
THE SAME ACT, ARE QUESTIONS ON WHICH THE HIGHEST COURT OF THE STATE HAS
THE FINAL WORD.  THE RIGHT TO SPEAK THIS WORD IS ONE WHICH STATE COURTS
SHOULD JEALOUSLY MAINTAIN AND WHICH WE SHOULD SCRUPULOUSLY OBSERVE.  IN
ORDER THAT THE CONTROVERSY MAY BE RESTORED TO THE CONTROL OF THE
SUPREME COURT OF UTAH, ITS PRESENT JUDGMENT IS VACATED AND THE CAUSE IS
REMANDED FOR PROCEEDINGS NOT INCONSISTENT HEREWITH.  VACATED AND
REMANDED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MURPHY CONCUR, DISSENTING. 

I WOULD MAKE A DIFFERENT DISPOSITION OF THE CASE.  I THINK A DEEPER
VICE INFECTS THESE CONVICTIONS THAN THEIR APPARENT INVALIDITY FOR
VAGUENESS OF THE UTAH STATUTE, FIRST SUGGESTED ON THE ORIGINAL ARGUMENT
HERE, EVEN IF FURTHER CONSTRUCTION BY THE UTAH COURTS MIGHT POSSIBLY
REMOVE THAT GROUND FOR REVERSAL.  THE CRUCIAL QUESTION, WHICH THE CASE
WAS BROUGHT TO THIS COURT TO REVIEW, IS WHETHER THE STATE SUPREME COURT
HAS CONSTRUED THE UTAH STATUTE TO AUTHORIZE PUNISHMENT FOR EXERCISING
THE RIGHT OF FREE SPEECH PROTECTED BY THE FIRST AND FOURTEENTH
AMENDMENTS TO THE FEDERAL CONSTITUTION. 

THE STATUTE WHICH APPELLANTS HAVE VIOLATED PROVIDES THAT IT SHALL BE
A CRIME FOR TWO OR MORE PERSONS TO CONSPIRE "TO COMMIT ANY ACT
INJURIOUS  ...  TO PUBLIC MORALS."  THE OPINION OF THE STATE SUPREME
COURT CONSTRUES THESE WORDS TO APPLY TO CONDUCT WHICH INDUCES PEOPLE TO
ENTER INTO BIGAMOUS RELATIONSHIPS AND, MORE PARTICULARLY, TO THE
ADVOCACY OF THE PRACTICE OF POLYGAMY.  IT HELD THAT THE APPELLANTS WERE
PROPERLY CONVICTED BECAUSE THE EVIDENCE PROVED THAT THEY WERE PARTIES
TO "AN AGREEMENT TO ADVOCATE, COUNSEL, ADVISE AND URGE THE PRACTICE OF
POLYGAMY AND UNLAWFUL COHABITATION BY OTHER PERSONS." 

ALTHOUGH THE ENTIRE RECORD OF THE TRIAL HAS NOT BEEN BROUGHT HERE, IT
IS CLEAR THAT SOME APPELLANTS URGED CERTAIN PARTICULAR INDIVIDUALS TO
PRACTICE POLYGAMY.  FN1  FOR PRESENT PURPOSES I ASSUME THAT SUCH DIRECT
AND PERSONALIZED ACTIVITY AMOUNTING TO INCITATION TO COMMIT A CRIME MAY
BE PROSCRIBED BY THE STATE.  HOWEVER THE CHARGE WAS NOT RESTRICTED TO A
CLAIM THAT APPELLANTS HAD CONSPIRED TO URGE PARTICULAR VIOLATIONS OF
THE LAW.  INSTEAD, THE INFORMATION AS CONSTRUED BY THE STATE COURT
BROADLY CONDEMNED THE CONSPIRACY TO ADVOCATE AND URGE THE PRACTICE OF
POLYGAMY.  FN2 THIS ADVOCACY WAS AT LEAST IN PART CONDUCTED IN
RELIGIOUS MEETINGS WHERE, ALTHOUGH PRESSURE MAY ALSO HAVE BEEN APPLIED
TO INDIVIDUALS, CONSIDERABLE GENERAL DISCUSSION OF THE RELIGIOUS DUTY
TO ENTER INTO PLURAL MARRIAGES WAS CARRIED ON.  FN3 

NEITHER THE STATUTE, THE INFORMATION, NOR THE PORTIONS OF THE CHARGE
TO THE JURY WHICH ARE PRESERVED IN THE PRINTED RECORD DISTINGUISH
BETWEEN THE SPECIFIC INCITATIONS AND THE MORE GENERALIZED DISCUSSIONS. 
CF. THOMAS V. COLLINS, 323 U.S. 516.  THUS THE TRIAL AND CONVICTIONS
PROCEEDED ON THE THEORY THAT THE STATUTE APPLIED INDISCRIMINATELY TO
BOTH TYPES OF ACTIVITY.  THIS IS MADE DOUBLY CLEAR BY THE FACT THAT THE
STATE SUPREME COURT SET ASIDE THE CONVICTIONS OF SEVERAL DEFENDANTS WHO
HAD DONE NO MORE THAN ATTEND MEETINGS, GIVE OPINIONS ON RELIGIOUS
SUBJECTS AND CRITICIZE LEGISLATION.  FN4  BY SETTING ASIDE THESE
CONVICTIONS THAT COURT INDICATED THAT IT DID NOT CONSIDER EVERY
DISCUSSION OF POLYGAMY, OR ATTENDANCE AT MEETINGS WHERE THE PRACTICE IS
ADVOCATED, TO BE "AN ACT INJURIOUS TO THE PUBLIC MORALS."  SUCH A
LIMITATION ON THE SCOPE OF THE STATUTE WAS UNQUESTIONABLY REQUIRED BY
THE FEDERAL CONSTITUTION.  BUT AS I READ THE OPINION OF THE STATE
COURT, IT DID NOT MAKE A FURTHER LIMITATION ALSO REQUIRED BY THE FIRST
AND FOURTEENTH AMENDMENTS.  THE UTAH STATUTE WAS CONSTRUED TO PROSCRIBE
ANY AGREEMENT TO ADVOCATE THE PRACTICE OF POLYGAMY.  FN5  THUS THE LINE
WAS DRAWN BETWEEN DISCUSSION AND ADVOCACY. 

THE CONSTITUTION REQUIRES THAT THE STATUTE BE LIMITED MORE NARROWLY. 
AT THE VERY LEAST THE LINE MUST BE DRAWN BETWEEN ADVOCACY AND
INCITEMENT, AND EVEN THE STATE'S POWER TO PUNISH INCITEMENT MAY VARY
WITH THE NATURE OF THE SPEECH, WHETHER PERSUASIVE OR COERCIVE, THE
NATURE OF THE WRONG INDUCED, WHETHER VIOLENT OR MERELY OFFENSIVE TO THE
MORES, AND THE DEGREE OF PROBABILITY THAT THE SUBSTANTIVE EVIL ACTUALLY
WILL RESULT.  SEE BRIDGES V. CALIFORNIA, 314 U.S. 252, 262-263. 

IT IS AXIOMATIC THAT A DEMOCRATIC STATE MAY NOT DENY ITS CITIZENS THE
RIGHT TO CRITICIZE EXISTING LAWS AND TO URGE THAT THEY BE CHANGED.  AND
YET, IN ORDER TO SUCCEED IN AN EFFORT TO LEGALIZE POLYGAMY IT IS
OBVIOUSLY NECESSARY TO CONVINCE A SUBSTANTIAL NUMBER OF PEOPLE THAT
SUCH CONDUCT IS DESIRABLE.  BUT CONVICTION THAT THE PRACTICE IS
DESIRABLE HAS A NATURAL TENDENCY TO INDUCE THE PRACTICE ITSELF.  FN6
THUS, DEPENDING ON WHERE THE CIRCULAR REASONING IS STARTED, THE
ADVOCACY OF POLYGAMY MAY EITHER BE UNLAWFUL AS INDUCING A VIOLATION OF
LAW, OR BE CONSTITUTIONALLY PROTECTED AS ESSENTIAL TO THE PROPER
FUNCTIONING OF THE DEMOCRATIC PROCESS. 

IN THE ABSTRACT THE PROBLEM COULD BE SOLVED IN VARIOUS WAYS.  AT ONE
EXTREME IT COULD BE SAID THAT SOCIETY CAN BEST PROTECT ITSELF BY
PROHIBITING ONLY THE SUBSTANTIVE EVIL AND RELYING ON A COMPLETELY FREE
INTERCHANGE OF IDEAS AS THE BEST SAFEGUARD AGAINST DEMORALIZING
PROPAGANDA.  FN7 OR WE MIGHT PERMIT ADVOCACY OF LAWBREAKING, BUT ONLY
SO LONG AS THE ADVOCACY FALLS SHORT OF INCITEMENT.  FN8  BUT THE OTHER
EXTREME POSITION, THAT THE STATE MAY PREVENT ANY CONDUCT WHICH INDUCES
PEOPLE TO VIOLATE THE LAW, OR ANY ADVOCACY OF UNLAWFUL ACTIVITY, CANNOT
BE SQUARED WITH THE FIRST AMENDMENT.  AT THE VERY LEAST, AS WE HAVE
INDICATED, UNDER THE CLEAR-AND-PRESENT-DANGER RULE, THE SECOND
ALTERNATIVE STATED MARKS THE LIMIT OF THE STATE'S POWER AS RESTRICTED
BY THE AMENDMENT. 

THE SUPREME COURT OF UTAH HAS IN EFFECT ADOPTED THE THIRD POSITION
STATED ABOVE.  IT AFFIRMED THE CONVICTIONS ON THE THEORY THAT AN
AGREEMENT TO ADVOCATE POLYGAMY IS UNLAWFUL.  THE TRIAL COURT CERTAINLY
PROCEEDED ON THIS THEORY, IF IT DID NOT GO FURTHER AND CONSIDER
DISCUSSION OF POLYGAMY AS INJURIOUS TO PUBLIC MORALS AS WELL. 
THEREFORE, EVEN ASSUMING THAT APPELLANTS MAY HAVE BEEN GUILTY OF
CONDUCT WHICH THE STATE MAY PROPERLY RESTRAIN, THE CONVICTIONS SHOULD
BE SET ASIDE.  A GENERAL VERDICT WAS RETURNED, AND HENCE IT IS
IMPOSSIBLE TO DETERMINE WHETHER THE JURY CONVICTED APPELLANTS ON THE
GROUND THAT THEY CONSPIRED MERELY TO ADVOCATE POLYGAMY OR ON THE GROUND
THAT THE CONSPIRACY WAS INTENDED TO INCITE PARTICULAR AND IMMEDIATE
VIOLATIONS OF THE LAW.  SINCE THEREFORE THE CONVICTIONS MAY REST ON A
GROUND INVALID UNDER THE FEDERAL CONSTITUTION, I WOULD REVERSE THE
JUDGMENT OF THE STATE COURT.  CF. THOMAS V. COLLINS, SUPRA; WILLIAMS V.
NORTH CAROLINA, 317 U.S. 287; STROMBERG V. CALIFORNIA, 283 U.S. 359. 

FN1  "AT ONE OF THESE MEETINGS, ONE HEBER C. SMITH, JR. WAS MADE THE
SPECIFIC OBJECT OF REMARKS OF VARIOUS DEFENDANTS."  110 UTAH 533, 554,
175 P.2D 724, 735. 

FN2  ALTHOUGH THE INFORMATION IN TERMS CHARGED A CONSPIRACY TO
ADVOCATE AND PRACTICE POLYGAMY, THE STATE COURT CONSTRUED IT AS THOUGH
IT CHARGED A CONSPIRACY TO ADVOCATE THE PRACTICE OF POLYGAMY.  110 UTAH
533, 544-545, 175 P.2D 724, 730. 

FN3  "IT IS TRUE  ...  THAT AT CERTAIN MEETINGS SPEAKERS DISCUSSED
POLYGAMY, READING FROM THE BIBLE AND MAKING THE CLAIM THAT THE ANCIENT
POLYGAMOUS MARRIAGE SYSTEM WAS INSTITUTED OF GOD, AND THAT 'PLURAL
MARRIAGE IS A LAW OF GOD'; THAT SOME INDIVIDUALS AT THESE MEETINGS
DECLARED THAT LEGISLATION PROHIBITING THE PRACTICE OF POLYGAMY VIOLATES
THE SPIRIT OF THE FIRST AMENDMENT TO THE FEDERAL CONSTITUTION; THAT
SOME SPEAKERS DENOUNCED OFFICIALS OF THE MORMON CHURCH FOR
EXCOMMUNICATION OF PEOPLE FOR TEACHING OR PRACTICING PLURAL MARRIAGE,
STATING THAT THE LEADERS OF SAID CHURCH HAVE 'NO DIVINE AUTHORITY' AND
THAT SUCH CHURCH IS APOSTATE; AND THAT SOME SERVICES WERE CONDUCTED AS
'TESTIMONIAL MEETINGS' AT WHICH MEMBERS OF THE CONGREGATION AROSE
VOLUNTARILY TO EXPRESS THEIR VIEWS ON ANY SUBJECT, AND TO ACKNOWLEDGE
GRATITUDE TO GOD."  110 UTAH 533, 551-552, 175 P.2D 724, 734.    FN4
"IF IT WERE TRUE THAT NONE OF THE DEFENDANTS DID ANYTHING OTHER THAN TO
ATTEND MEETINGS AS INDICATED ABOVE (SEE NOTE 3 SUPRA), EXPRESSING
DISAGREEMENT WITH SOME OTHER DENOMINATION, CRITICIZING LEGISLATION, AND
GIVING OPINIONS ON RELIGIOUS SUBJECTS, NONE OF THE CONVICTIONS COULD BE
UPHELD.  THE RIGHT OF FREE SPEECH CANNOT BE CURTAILED BY INDIRECTION
THROUGH A CHARGE OF CRIMINAL CONSPIRACY."  110 UTAH 533, 552, 175 P.2D
724, 734. 

FN5  THE COURT HELD "THAT AN AGREEMENT TO ADVOCATE, TEACH, COUNSEL,
ADVISE AND URGE OTHER PERSONS TO PRACTICE POLYGAMY AND UNLAWFUL
COHABITATION, IS AN AGREEMENT TO COMMIT ACTS INJURIOUS TO PUBLIC MORALS
WITHIN THE SCOPE OF THE CONSPIRACY STATUTE."  110 UTAH 533, 546-547,
175 P.2D 724, 731. 

FN6  "POLITICAL AGITATION, BY THE PASSIONS IT AROUSES OR THE
CONVICTIONS IT ENGENDERS, MAY IN FACT STIMULATE MEN TO THE VIOLATION OF
LAW.  DETESTATION OF EXISTING POLICIES IS EASILY TRANSFORMED INTO
FORCIBLE RESISTANCE OF THE AUTHORITY WHICH PUTS THEM IN EXECUTION, AND
IT WOULD BE FOLLY TO DISREGARD THE CAUSAL RELATION BETWEEN THE TWO. 
YET TO ASSIMILATE AGITATION, LEGITIMATE AS SUCH, WITH DIRECT INCITEMENT
TO VIOLENT RESISTANCE, IS TO DISREGARD THE TOLERANCE OF ALL METHODS OF
POLITICAL AGITATION WHICH IN NORMAL TIMES IS A SAFEGUARD OF FREE
GOVERNMENT.  THE DISTINCTION IS NOT A SCHOLASTIC SUBTERFUGE, BUT A HARD
BOUGHT ACQUISITION IN THE FIGHT FOR FREEDOM, AND THE PURPOSE TO
DISREGARD IT MUST BE EVIDENT WHEN THE POWER EXISTS.  IF ONE STOPS SHORT
OF URGING UPON OTHERS THAT IT IS THEIR DUTY OR THEIR INTEREST TO RESIST
THE LAW, IT SEEMS TO ME ONE SHOULD NOT BE HELD TO HAVE ATTEMPTED TO
CAUSE ITS VIOLATION."  JUDGE LEARNED HAND IN MASSES PUB. CO. V. PATTEN,
244 F. 535, 540. 

FN7  "WE HAVE NOTHING TO FEAR FROM THE DEMORALIZING REASONINGS OF
SOME, IF OTHERS ARE LEFT FREE TO DEMONSTRATE THEIR ERRORS AND
ESPECIALLY WHEN THE LAW STANDS READY TO PUNISH THE FIRST CRIMINAL ACT
PRODUCED BY THE FALSE REASONINGS; THESE ARE SAFER CORRECTIONS THAN THE
CONSCIENCE OF A JUDGE."  EXCERPT FROM LETTER WRITTEN BY THOMAS
JEFFERSON TO ELIJAH BOARDMAN OF NEW MILFORD, CONNECTICUT, ON JULY 3,
1801, QUOTED BY CHARLES A. BEARD, THE NATION, JULY 7, 1926, VOL. 123,
P. 8. 

FN8  "BUT EVEN ADVOCACY OF VIOLATION, HOWEVER REPREHENSIBLE MORALLY,
IS NOT A JUSTIFICATION FOR DENYING FREE SPEECH WHERE THE ADVOCACY FALLS
SHORT OF INCITEMENT AND THERE IS NOTHING TO INDICATE THAT THE ADVOCACY
WOULD BE IMMEDIATELY ACTED ON."  MR. JUSTICE BRANDEIS, CONCURRING IN
WHITNEY V. CALIFORNIA, 274 U.S. AT 376. 
..END :















C. & S. AIR LINES V. WATERMAN CORP., 333 U.S. 103 


ARGUED NOVEMBER 19, 1947.  - DECIDED FEBRUARY 9, 1948.  - 159 F.2D 828,
REVERSED. 


OF CERTAIN ORDERS OF THE CIVIL AERONAUTICS BOARD, DOES NOT APPLY TO
ORDERS GRANTING OR DENYING APPLICATIONS OF CITIZENS OF THE UNITED
STATES FOR AUTHORITY TO ENGAGE IN OVERSEAS AND FOREIGN AIR
TRANSPORTATION WHICH ARE SUBJECT TO APPROVAL BY THE PRESIDENT UNDER
SEC. 801.  PP. 104-114. 

(A)  ORDERS OF THE BOARD AS TO CERTIFICATES FOR OVERSEAS OR FOREIGN
AIR TRANSPORTATION ARE NOT MATURE AND THEREFORE ARE NOT SUSCEPTIBLE OF
JUDICIAL REVIEW UNTIL THEY ARE MADE FINAL BY PRESIDENTIAL APPROVAL, AS
REQUIRED BY SEC. 801.  P. 114. 

(B)  AFTER SUCH APPROVAL HAS BEEN GIVEN, THE FINAL ORDERS EMBODY
PRESIDENTIAL DISCRETION AS TO POLITICAL MATTERS BEYOND THE COMPETENCE
OF THE COURTS TO ADJUDICATE.  P. 114. 

CHICAGO & SOUTHERN AIR LINES, INC. V. WATERMAN STEAMSHIP CORP. 

NO. 78.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH
CIRCUIT* . 

*TOGETHER WITH NO. 88, CIVIL AERONAUTICS BOARD V. WATERMAN STEAMSHIP
CORP., ALSO ON CERTIORARI TO THE SAME COURT. 

THE CIRCUIT COURT OF APPEALS DENIED A MOTION TO DISMISS A PETITION
SEEKING REVIEW OF CERTAIN ORDERS OF THE CIVIL AERONAUTICS BOARD
GRANTING AND DENYING CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY
AUTHORIZING CERTAIN AMERICAN AIR CARRIERS TO ENGAGE IN OVERSEAS AND
FOREIGN AIR TRANSPORTATION AFTER SUCH ORDERS HAD BEEN APPROVED BY THE
PRESIDENT UNDER SEC. 801 OF THE CIVIL AERONAUTICS ACT.  159 F.2D 828. 
THIS COURT GRANTED CERTIORARI.  331 U.S. 802.  REVERSED, P. 114. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION OF LAW WHICH BRINGS THIS CONTROVERSY HERE IS WHETHER
SEC. 1006 OF THE CIVIL AERONAUTICS ACT, 49 U.S.C. SEC. 646, AUTHORIZING
JUDICIAL REVIEW OF DESCRIBED ORDERS OF THE CIVIL AERONAUTICS BOARD,
INCLUDES THOSE WHICH GRANT OR DENY APPLICATIONS BY CITIZEN CARRIERS TO
ENGAGE IN OVERSEAS AND FOREIGN AIR TRANSPORTATION WHICH ARE SUBJECT TO
APPROVAL BY THE PRESIDENT UNDER SEC. 801 OF THE ACT.  49 U.S.C. SEC.
601. 

BY PROCEEDINGS NOT CHALLENGED AS TO REGULARITY, THE BOARD, WITH
EXPRESS APPROVAL OF THE PRESIDENT, ISSUED AN ORDER WHICH DENIED
WATERMAN STEAMSHIP CORPORATION A CERTIFICATE OF CONVENIENCE AND
NECESSITY FOR AN AIR ROUTE AND GRANTED ONE TO CHICAGO AND SOUTHERN AIR
LINES, A RIVAL APPLICANT.  ROUTES SOUGHT BY BOTH CARRIER INTERESTS
INVOLVED OVERSEAS AIR TRANSPORTATION, SEC. 1(21)(B), BETWEEN
CONTINENTAL UNITED STATES AND CARIBBEAN POSSESSIONS AND ALSO FOREIGN
AIR TRANSPORTATION, SEC. 1(21)(C), BETWEEN THE UNITED STATES AND
FOREIGN COUNTRIES.  WATERMAN FILED A PETITION FOR REVIEW UNDER SEC.
1006 OF THE ACT WITH THE CIRCUIT COURT OF APPEALS FOR THE FIFTH
CIRCUIT.  CHICAGO AND SOUTHERN INTERVENED.  BOTH THE LATTER AND THE
BOARD MOVED TO DISMISS, THE GROUNDS PERTINENT HERE BEING THAT BECAUSE
THE ORDER REQUIRED AND HAD APPROVAL OF THE PRESIDENT, UNDER SEC. 801 OF
THE ACT, IT WAS NOT REVIEWABLE.  THE COURT OF APPEALS DISCLAIMED ANY
POWER TO QUESTION OR REVIEW EITHER THE PRESIDENT'S APPROVAL OR HIS
DISAPPROVAL, BUT IT REGARDED ANY BOARD ORDER AS INCOMPLETE UNTIL COURT
REVIEW, AFTER WHICH "THE COMPLETED ACTION MUST BE APPROVED BY THE
PRESIDENT AS TO CITIZEN AIR CARRIERS IN CASES UNDER SEC. 801."  159
F.2D 828.  ACCORDINGLY, IT REFUSED TO DISMISS THE PETITION AND ASSERTED
JURISDICTION.  ITS DECISION CONFLICTS WITH ONE BY THE COURT OF APPEALS
FOR THE SECOND CIRCUIT.  PAN AMERICAN AIRWAYS CO. V. CIVIL AERONAUTICS
BOARD, 121 F.2D 810.  WE GRANTED CERTIORARI BOTH TO THE CHICAGO AND
SOUTHERN AIR LINES, INC. (NO. 78) AND TO THE BOARD (NO. 88) TO RESOLVE
THE CONFLICT. 

CONGRESS HAS SET UP A COMPREHENSIVE SCHEME FOR REGULATION OF COMMON
CARRIERS BY AIR.  MANY STATUTORY PROVISIONS APPLY INDIFFERENTLY WHETHER
THE CARRIER IS A FOREIGN AIR CARRIER OR A CITIZEN AIR CARRIER, AND
WHETHER THE CARRIAGE INVOLVED IS "INTERSTATE AIR COMMERCE," "OVERSEAS
AIR COMMERCE" OR "FOREIGN AIR COMMERCE," EACH BEING APPROPRIATELY
DEFINED.  49 U.S.C. SEC. 401(20).  ALL AIR CARRIERS BY SIMILAR
PROCEDURES MUST OBTAIN FROM THE BOARD CERTIFICATES OF CONVENIENCE AND
NECESSITY BY SHOWING A PUBLIC INTEREST IN ESTABLISHMENT OF THE ROUTE
AND THE APPLICANT'S ABILITY TO SERVE IT.  BUT WHEN A FOREIGN CARRIER
ASKS FOR ANY PERMIT, OR A CITIZEN CARRIER APPLIES FOR A CERTIFICATE TO
ENGAGE IN ANY OVERSEAS OR FOREIGN AIR TRANSPORTATION, A COPY OF THE
APPLICATION MUST BE TRANSMITTED TO THE PRESIDENT BEFORE HEARING; AND
ANY DECISION, EITHER TO GRANT OR TO DENY, MUST BE SUBMITTED TO THE
PRESIDENT BEFORE PUBLICATION AND IS UNCONDITIONALLY SUBJECT TO THE
PRESIDENT'S APPROVAL.  ALSO THE STATUTE SUBJECTS TO JUDICIAL REVIEW
"ANY ORDER, AFFIRMATIVE OR NEGATIVE, ISSUED BY THE BOARD UNDER THIS
ACT, EXCEPT ANY ORDER IN RESPECT OF ANY FOREIGN AIR CARRIER SUBJECT TO
THE APPROVAL OF THE PRESIDENT AS PROVIDED IN SECTION 801 OF THIS ACT." 
IT GRANTS NO EXPRESS EXEMPTION TO AN ORDER SUCH AS THE ONE BEFORE US,
WHICH CONCERNS A CITIZEN CARRIER BUT WHICH MUST HAVE PRESIDENTIAL
APPROVAL BECAUSE IT INVOLVES OVERSEAS AND FOREIGN AIR TRANSPORTATION. 
THE QUESTION IS WHETHER AN EXEMPTION IS TO BE IMPLIED. 

THIS COURT LONG HAS HELD THAT STATUTES WHICH EMPLOY BROAD TERMS TO
CONFER POWER OF JUDICIAL REVIEW ARE NOT ALWAYS TO BE READ LITERALLY. 
WHERE CONGRESS HAS AUTHORIZED REVIEW OF "ANY ORDER" OR USED OTHER
EQUALLY INCLUSIVE TERMS, COURTS HAVE DECLINED THE OPPORTUNITY TO
MAGNIFY THEIR JURISDICTION, BY SELF-DENYING CONSTRUCTIONS WHICH DO NOT
SUBJECT TO JUDICIAL CONTROL ORDERS WHICH, FROM THEIR NATURE, FROM THE
CONTEXT OF THE ACT, OR FROM THE RELATION OF JUDICIAL POWER TO THE
SUBJECT-MATTER, ARE INAPPROPRIATE FOR REVIEW.  EXAMPLES ARE SET FORTH
BY CHIEF JUSTICE HUGHES IN FEDERAL POWER COMMISSION V. EDISON CO., 304
U.S. 375, 384.  CF. ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307
U.S. 125, 130. 

THE WATERMAN STEAMSHIP CORPORATION URGES THAT REVIEW OF THE PROBLEMS
INVOLVED IN ESTABLISHING FOREIGN AIR ROUTES ARE OF NO MORE
INTERNATIONAL DELICACY OR STRATEGIC IMPORTANCE THAN THOSE INVOLVED IN
ROUTES FOR WATER CARRIAGE.  IT SAYS, "IT IS SUBMITTED THAT THERE IS NO
BASIC DIFFERENCE BETWEEN THE CONDUCT OF THE FOREIGN COMMERCE OF THE
UNITED STATES BY AIR OR BY SEA."  FROM THIS PREMISE IT REASONS THAT WE
SHOULD INTERPRET THIS STATUTE TO FOLLOW THE PATTERN OF JUDICIAL REVIEW
ADOPTED IN RELATION TO ORDERS AFFECTING FOREIGN COMMERCE BY RAIL, LEWIS
SIMAS-JONES CO. V. SOUTHERN PACIFIC CO., 283 U.S. 654; NEWS SYNDICATE
CO. V. NEW YORK CENTRAL R. CO., 275 U.S. 179, OR COMMUNICATIONS BY
WIRE, UNITED STATES V. WESTERN UNION TELEGRAPH CO., 272 F. 893, OR BY
RADIO, MACKAY RADIO & TELEGRAPH CO. V. FEDERAL COMMUNICATIONS
COMMISSION, 68 APP. D.C. 336, 97 F.2D 641; AND IT LIKENS THE
SUBJECTMATTER OF AERONAUTICS LEGISLATION TO THAT OF TITLE VI OF THE
MERCHANT MARINE ACT OF 1936, 46 U.S.C. SEC. 1171, AND THE FUNCTION OF
THE AERONAUTICS BOARD IN RESPECT TO OVERSEAS AND FOREIGN AIR
TRANSPORTATION TO THAT OF THE MARITIME COMMISSION TO SUCH COMMERCE WHEN
WATER-BORNE. 

WE FIND NO INDICATION THAT THE CONGRESS EITHER ENTERTAINED OR
FOSTERED THE NARROW CONCEPT THAT AIR-BORNE COMMERCE IS A MERE OUTGROWTH
OR OVERGROWTH OF SURFACE-BOUND TRANSPORT.  OF COURSE, AIR
TRANSPORTATION, WATER TRANSPORTATION, RAIL TRANSPORTATION, AND MOTOR
TRANSPORTATION ALL HAVE A KINSHIP IN THAT ALL ARE FORMS OF
TRANSPORTATION AND THEIR COMMON FEATURES OF PUBLIC CARRIAGE FOR HIRE
MAY BE AMENABLE TO KINDRED REGULATIONS.  BUT THESE RESEMBLANCES MUST
NOT BLIND US TO THE FACT THAT LEGALLY, AS WELL AS LITERALLY, AIR
COMMERCE, WHETHER AT HOME OR ABROAD, SOARED INTO A DIFFERENT REALM THAN
ANY THAT HAD GONE BEFORE.  ANCIENT DOCTRINES OF PRIVATE OWNERSHIP OF
THE AIR AS APPURTENANT TO LAND TITLES HAD TO BE REVISED TO MAKE
AVIATION PRACTICALLY SERVICEABLE TO OUR SOCIETY.  A WAY OF TRAVEL WHICH
QUICKLY ESCAPES THE BOUNDS OF LOCAL REGULATIVE COMPETENCE CALLED FOR A
MORE PENETRATING, UNIFORM AND EXCLUSIVE REGULATION BY THE NATION THAN
HAD BEEN THOUGHT APPROPRIATE FOR THE MORE EASILY CONTROLLED COMMERCE OF
THE PAST.  WHILE TRANSPORT BY LAND AND BY SEA BEGAN BEFORE ANY EXISTING
GOVERNMENT WAS ESTABLISHED AND THEIR RESPECTIVE CUSTOMS AND PRACTICES
MATURED INTO BODIES OF CARRIER LAW INDEPENDENTLY OF LEGISLATION, AIR
TRANSPORT BURST SUDDENLY UPON MODERN GOVERNMENTS, OFFERING NEW
ADVANTAGES, DEMANDING NEW RIGHTS AND CARRYING NEW THREATS WHICH SOCIETY
COULD MEET WITH TIMELY ADJUSTMENTS ONLY BY PROMPT INVOCATION OF
LEGISLATIVE AUTHORITY.  HOWEVER USEFUL PARALLELS WITH OLDER FORMS OF
TRANSIT MAY BE IN ADJUDICATING PRIVATE RIGHTS, WE SEE NO REASON WHY THE
EFFORTS OF THE CONGRESS TO FOSTER AND REGULATE DEVELOPMENT OF A
REVOLUTIONARY COMMERCE THAT OPERATES IN THREE DIMENSIONS SHOULD BE
JUDICIALLY CIRCUMSCRIBED WITH ANALOGIES TAKEN OVER FROM TWO-DIMENSIONAL
TRANSIT. 

THE "PUBLIC INTEREST" THAT ENTERS INTO AWARDS OF ROUTES FOR AERIAL
CARRIERS, WHO IN EFFECT OBTAIN ALSO A SPONSORSHIP BY OUR GOVERNMENT IN
FOREIGN VENTURES, IS NOT CONFINED TO ADEQUACY OF TRANSPORTATION
SERVICE, AS WE HAVE HELD WHEN THAT TERM IS APPLIED TO RAILROADS.  TEXAS
V. UNITED STATES, 292 U.S. 522, 531.  THAT AERIAL NAVIGATION ROUTES AND
BASES SHOULD BE PRUDENTLY CORRELATED WITH FACILITIES AND PLANS FOR OUR
OWN NATIONAL DEFENSES AND RAISE NEW PROBLEMS IN CONDUCT OF FOREIGN
RELATIONS, IS A FACT OF COMMON KNOWLEDGE.  CONGRESSIONAL HEARINGS AND
DEBATES EXTENDING OVER SEVERAL SESSIONS AND DEPARTMENTAL STUDIES OF
MANY YEARS SHOW THAT THE LEGISLATIVE AND ADMINISTRATIVE PROCESSES HAVE
PROCEEDED IN FULL RECOGNITION OF THESE FACTS. 

IN THE REGULATION OF COMMERCIAL AERONAUTICS, THE STATUTE CONFERS ON
THE BOARD MANY POWERS CONVENTIONAL IN OTHER CARRIER REGULATION UNDER
THE CONGRESSIONAL COMMERCE POWER.  THEY ARE EXERCISED THROUGH USUAL
PROCEDURES AND APPLY SETTLED STANDARDS WITH ONLY CUSTOMARY
ADMINISTRATIVE FINALITY.  CONGRESS EVIDENTLY THOUGHT OF THE
ADMINISTRATIVE FUNCTION IN TERMS USED BY THIS COURT OF ANOTHER OF ITS
AGENCIES IN EXERCISING INTERSTATE COMMERCE POWER:  "SUCH A BODY CANNOT
IN ANY PROPER SENSE BE CHARACTERIZED AS AN ARM OR AN EYE OF THE
EXECUTIVE.  ITS DUTIES ARE PERFORMED WITHOUT EXECUTIVE LEAVE AND, IN
THE CONTEMPLATION OF THE STATUTE, MUST BE FREE FROM EXECUTIVE
CONTROL."  HUMPHREY'S EXECUTOR V. UNITED STATES, 295 U.S. 602, 628. 
THOSE ORDERS WHICH DO NOT REQUIRE PRESIDENTIAL APPROVAL ARE SUBJECT TO
JUDICIAL REVIEW TO ASSURE APPLICATION OF THE STANDARDS CONGRESS HAS
LAID DOWN. 

BUT WHEN A FOREIGN CARRIER SEEKS TO ENGAGE IN PUBLIC CARRIAGE OVER
THE TERRITORY OR WATERS OF THIS COUNTRY, OR ANY CARRIER SEEKS THE
SPONSORSHIP OF THIS GOVERNMENT TO ENGAGE IN OVERSEAS OR FOREIGN AIR
TRANSPORTATION, CONGRESS HAS COMPLETELY INVERTED THE USUAL
ADMINISTRATIVE PROCESS.  INSTEAD OF ACTING INDEPENDENTLY OF EXECUTIVE
CONTROL, THE AGENCY IS THEN SUBORDINATED TO IT. INSTEAD OF ITS ORDER
SERVING AS A FINAL DISPOSITION OF THE APPLICATION, ITS FORCE IS
EXHAUSTED WHEN IT SERVES AS A RECOMMENDATION TO THE PRESIDENT.  INSTEAD
OF BEING HANDED DOWN TO THE PARTIES AS THE CONCLUSION OF THE
ADMINISTRATIVE PROCESS, IT MUST BE SUBMITTED TO THE PRESIDENT, BEFORE
PUBLICATION EVEN CAN TAKE PLACE.  NOR IS THE PRESIDENT'S CONTROL OF THE
ULTIMATE DECISION A MERE RIGHT OF VETO.  IT IS NOT ALONE ISSUANCE OF
SUCH AUTHORIZATIONS THAT ARE SUBJECT TO HIS APPROVAL, BUT DENIAL,
TRANSFER, AMENDMENT, CANCELLATION OR SUSPENSION, AS WELL.  AND LIKEWISE
SUBJECT TO HIS APPROVAL ARE THE TERMS, CONDITIONS AND LIMITATIONS OF
THE ORDER.  49 U.S.C. SEC. 601.  THUS, PRESIDENTIAL CONTROL IS NOT
LIMITED TO A NEGATIVE BUT IS A POSITIVE AND DETAILED CONTROL OVER THE
BOARD'S DECISIONS, UNPARALLELED IN THE HISTORY OF AMERICAN
ADMINISTRATIVE BODIES. 

CONGRESS MAY OF COURSE DELEGATE VERY LARGE GRANTS OF ITS POWER OVER
FOREIGN COMMERCE TO THE PRESIDENT.  NORWEGIAN NITROGEN PRODUCTS CO. V.
UNITED STATES, 288 U.S. 294; UNITED STATES V. BUSH & CO., 310 U.S.
371.  THE PRESIDENT ALSO POSSESSES IN HIS OWN RIGHT CERTAIN POWERS
CONFERRED BY THE CONSTITUTION ON HIM AS COMMANDER-IN-CHIEF AND AS THE
NATION'S ORGAN IN FOREIGN AFFAIRS.  FOR PRESENT PURPOSES, THE ORDER
DRAWS VITALITY FROM EITHER OR BOTH SOURCES.  LEGISLATIVE AND EXECUTIVE
POWERS ARE POOLED OBVIOUSLY TO THE END THAT COMMERCIAL STRATEGIC AND
DIPLOMATIC INTERESTS OF THE COUNTRY MAY BE COORDINATED AND ADVANCED
WITHOUT COLLISION OR DEADLOCK BETWEEN AGENCIES. 

THESE CONSIDERATIONS SEEM CONTROLLING ON THE QUESTION WHETHER THE
BOARD'S ACTION ON OVERSEAS AND FOREIGN AIR TRANSPORTATION APPLICATIONS
BY CITIZENS ARE SUBJECT TO REVISION OR OVERTHROW BY THE COURTS. 

IT MAY BE CONCEDED THAT A LITERAL READING OF SEC. 1006 SUBJECTS THIS
ORDER TO RE-EXAMINATION BY THE COURTS.  IT ALSO APPEARS THAT THE
LANGUAGE WAS DELIBERATELY EMPLOYED BY CONGRESS, ALTHOUGH NOTHING
INDICATES THAT CONGRESS FORESAW OR INTENDED THE CONSEQUENCES ASCRIBED
TO IT BY THE DECISION OF THE COURT BELOW.  THE LETTER OF THE TEXT MIGHT
WITH EQUAL CONSISTENCY BE CONSTRUED TO REQUIRE ANY ONE OF THREE THINGS:
FIRST, JUDICIAL REVIEW OF A DECISION BY THE PRESIDENT; SECOND,
JUDICIAL REVIEW OF A BOARD ORDER BEFORE IT ACQUIRES FINALITY THROUGH
PRESIDENTIAL ACTION, THE COURT'S DECISION ON REVIEW BEING A BINDING
LIMITATION ON THE PRESIDENT'S ACTION; THIRD, A JUDICIAL REVIEW BEFORE
ACTION BY THE PRESIDENT, THE LATTER BEING AT LIBERTY WHOLLY TO
DISREGARD THE COURT'S JUDGMENT.  WE THINK NONE OF THESE RESULTS IS
REQUIRED BY USUAL CANONS OF CONSTRUCTION. 

IN THIS CASE, SUBMISSION OF THE BOARD'S DECISION WAS MADE TO THE
PRESIDENT, WHO DISAPPROVED CERTAIN PORTIONS OF IT AND ADVISED THE BOARD
OF THE CHANGES WHICH HE REQUIRED.  THE BOARD COMPLIED AND SUBMITTED A
REVISED ORDER AND OPINION WHICH THE PRESIDENT APPROVED.  ONLY THEN WERE
THEY MADE PUBLIC, AND THAT WHICH WAS MADE PUBLIC AND WHICH IS BEFORE US
IS ONLY THE FINAL ORDER AND OPINION CONTAINING THE PRESIDENT'S
AMENDMENTS AND BEARING HIS APPROVAL.  ONLY AT THAT STAGE WAS REVIEW
SOUGHT, AND ONLY THEN COULD IT BE PURSUED, FOR THEN ONLY WAS THE
DECISION CONSUMMATED, ANNOUNCED AND AVAILABLE TO THE PARTIES.    WHILE
THE CHANGES MADE AT DIRECTION OF THE PRESIDENT MAY BE IDENTIFIED, THE
REASONS THEREFOR ARE NOT DISCLOSED BEYOND THE STATEMENT THAT "BECAUSE
OF CERTAIN FACTORS RELATING TO OUR BROAD NATIONAL WELFARE AND OTHER
MATTERS FOR WHICH THE CHIEF EXECUTIVE HAS SPECIAL RESPONSIBILITY, HE
HAS REACHED CONCLUSIONS WHICH REQUIRE" CHANGES IN THE BOARD'S OPINION. 

THE COURT BELOW CONSIDERED, AND WE THINK QUITE RIGHTLY, THAT IT COULD
NOT REVIEW SUCH PROVISIONS OF THE ORDER AS RESULTED FROM PRESIDENTIAL
DIRECTION.  THE PRESIDENT, BOTH AS COMMANDER-IN-CHIEF AND AS THE
NATION'S ORGAN FOR FOREIGN AFFAIRS, HAS AVAILABLE INTELLIGENCE SERVICES
WHOSE REPORTS ARE NOT AND OUGHT NOT TO BE PUBLISHED TO THE WORLD.  IT
WOULD BE INTOLERABLE THAT COURTS, WITHOUT THE RELEVANT INFORMATION,
SHOULD REVIEW AND PERHAPS NULLIFY ACTIONS OF THE EXECUTIVE TAKEN ON
INFORMATION PROPERLY HELD SECRET.  NOR CAN COURTS SIT IN CAMERA IN
ORDER TO BE TAKEN INTO EXECUTIVE CONFIDENCES.  BUT EVEN IF COURTS COULD
REQUIRE FULL DISCLOSURE, THE VERY NATURE OF EXECUTIVE DECISIONS AS TO
FOREIGN POLICY IS POLITICAL, NOT JUDICIAL.  SUCH DECISIONS ARE WHOLLY
CONFIDED BY OUR CONSTITUTION TO THE POLITICAL DEPARTMENTS OF THE
GOVERNMENT, EXECUTIVE AND LEGISLATIVE.  THEY ARE DELICATE, COMPLEX, AND
INVOLVE LARGE ELEMENTS OF PROPHECY.  THEY ARE AND SHOULD BE UNDERTAKEN
ONLY BY THOSE DIRECTLY RESPONSIBLE TO THE PEOPLE WHOSE WELFARE THEY
ADVANCE OR IMPERIL.  THEY ARE DECISIONS OF A KIND FOR WHICH THE
JUDICIARY HAS NEITHER APTITUDE, FACILITIES NOR RESPONSIBILITY AND WHICH
HAS LONG BEEN HELD TO BELONG IN THE DOMAIN OF POLITICAL POWER NOT
SUBJECT TO JUDICIAL INTRUSION OR INQUIRY.  COLEMAN V. MILLER, 307 U.S.
433, 454; UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304, 319-321;
OETJEN V. CENTRAL LEATHER CO., 246 U.S. 297, 302.  WE THEREFORE AGREE
THAT WHATEVER OF THIS ORDER EMANATES FROM THE PRESIDENT IS NOT
SUSCEPTIBLE OF REVIEW BY THE JUDICIAL DEPARTMENT. 

THE COURT BELOW THOUGHT THAT THIS DISABILITY COULD BE OVERCOME BY
REGARDING THE BOARD AS A REGULATORY AGENT OF CONGRESS TO PASS ON SUCH
MATTERS AS THE FITNESS, WILLINGNESS AND ABILITY OF THE APPLICANT, AND
THAT THE BOARD'S OWN DETERMINATION OF THESE MATTERS IS SUBJECT TO
REVIEW.  THE COURT, SPEAKING OF THE BOARD'S ACTION, SAID:  "IT IS NOT
FINAL TILL THE BOARD AND THE COURT HAVE COMPLETED THEIR FUNCTIONS. 
THEREAFTER THE COMPLETED ACTION MUST BE APPROVED BY THE PRESIDENT AS TO
CITIZEN AIR CARRIERS IN CASES UNDER SEC. 801."  THE LEGAL INCONGRUITY
OF INTERPOSING JUDICIAL REVIEW BETWEEN THE ACTION BY THE BOARD AND THAT
BY THE PRESIDENT ARE AS GREAT AS THE PRACTICAL DISADVANTAGES.  THE
LATTER ARISE CHIEFLY FROM THE INEVITABLE DELAY AND OBSTRUCTION IN THE
MIDST OF THE ADMINISTRATIVE PROCEEDINGS.  THE FORMER ARISES FROM THE
FACT THAT UNTIL THE PRESIDENT ACTS THERE IS NO FINAL ADMINISTRATIVE
DETERMINATION TO REVIEW.  THE STATUTE WOULD HARDLY HAVE FORBIDDEN
PUBLICATION BEFORE SUBMISSION IF IT HAD CONTEMPLATED INTERPOSITION OF
THE COURTS AT THIS INTERMEDIATE STAGE.  NOR COULD IT HAVE EXPECTED THE
COURTS TO STAY THE PRESIDENT'S HAND AFTER SUBMISSION WHILE THEY
DELIBERATE ON THE INCHOATE DETERMINATION.  THE DIFFICULTY IS MANIFEST
IN THIS CASE.  REVIEW COULD NOT BE SOUGHT UNTIL THE ORDER WAS MADE
AVAILABLE, AND AT THAT TIME IT HAD CEASED TO BE MERELY THE BOARD'S
TENTATIVE DECISION AND HAD BECOME ONE FINALIZED BY PRESIDENTIAL
DISCRETION. 

UNTIL THE DECISION OF THE BOARD HAS PRESIDENTIAL APPROVAL, IT GRANTS
NO PRIVILEGE AND DENIES NO RIGHT.  IT CAN GIVE NOTHING AND CAN TAKE
NOTHING AWAY FROM THE APPLICANT OR A COMPETITOR.  IT MAY BE A STEP
WHICH IF ERRONEOUS WILL MATURE INTO A PREJUDICIAL RESULT, AS AN ORDER
FIXING VALUATIONS IN A RATE PROCEEDING MAY FORESHOW AND COMPEL A
PREJUDICIAL RATE ORDER.  BUT ADMINISTRATIVE ORDERS ARE NOT REVIEWABLE
UNLESS AND UNTIL THEY IMPOSE AN OBLIGATION, DENY A RIGHT OR FIX SOME
LEGAL RELATIONSHIP AS A CONSUMMATION OF THE ADMINISTRATIVE PROCESS. 
UNITED STATES V. LOS ANGELES & SALT LAKE R. CO., 273 U.S. 299; UNITED
STATES V. ILLINOIS CENTRAL R. CO., 244 U.S. 82; ROCHESTER TELEPHONE
CORP. V. UNITED STATES, 307 U.S. 125, 131.  THE DILEMMA FACED BY THOSE
WHO DEMAND JUDICIAL REVIEW OF THE BOARD'S ORDER IS THAT BEFORE
PRESIDENTIAL APPROVAL IT IS NOT A FINAL DETERMINATION EVEN OF THE
BOARD'S ULTIMATE ACTION, AND AFTER PRESIDENTIAL APPROVAL THE WHOLE
ORDER, BOTH IN WHAT IS APPROVED WITHOUT CHANGE AS WELL AS IN AMENDMENTS
WHICH HE DIRECTS, DERIVES ITS VITALITY FROM THE EXERCISE OF
UNREVIEWABLE PRESIDENTIAL DISCRETION. 

THE COURT BELOW CONSIDERED THAT AFTER IT REVIEWED THE BOARD'S ORDER
ITS JUDGMENT WOULD BE SUBMITTED TO THE PRESIDENT, THAT HIS POWER TO
DISAPPROVE WOULD APPLY AFTER AS WELL AS BEFORE THE COURT ACTS, AND
HENCE THAT THERE WOULD BE NO CHANCE OF A DEADLOCK AND NO CONFLICT OF
FUNCTION.  BUT IF THE PRESIDENT MAY COMPLETELY DISREGARD THE JUDGMENT
OF THE COURT, IT WOULD BE ONLY BECAUSE IT IS ONE THE COURTS WERE NOT
AUTHORIZED TO RENDER.  JUDGMENTS WITHIN THE POWERS VESTED IN COURTS BY
THE JUDICIARY ARTICLE OF THE CONSTITUTION MAY NOT LAWFULLY BE REVISED,
OVERTURNED OR REFUSED FAITH AND CREDIT BY ANOTHER DEPARTMENT OF
GOVERNMENT. 

TO REVISE OR REVIEW AN ADMINISTRATIVE DECISION WHICH HAS ONLY THE
FORCE OF A RECOMMENDATION TO THE PRESIDENT WOULD BE TO RENDER AN
ADVISORY OPINION IN ITS MOST OBNOXIOUS FORM - ADVICE THAT THE PRESIDENT
HAS NOT ASKED, TENDERED AT THE DEMAND OF A PRIVATE LITIGANT, ON A
SUBJECT CONCEDEDLY WITHIN THE PRESIDENT'S EXCLUSIVE, ULTIMATE CONTROL. 
THIS COURT EARLY AND WISELY DETERMINED THAT IT WOULD NOT GIVE ADVISORY
OPINIONS EVEN WHEN ASKED BY THE CHIEF EXECUTIVE.  IT HAS ALSO BEEN THE
FIRM AND UNVARYING PRACTICE OF CONSTITUTIONAL COURTS TO RENDER NO
JUDGMENTS NOT BINDING AND CONCLUSIVE ON THE PARTIES AND NONE THAT ARE
SUBJECT TO LATER REVIEW OR ALTERATION BY ADMINISTRATIVE ACTION. 
HAYBURN'S CASE, 2 DALL.  409; UNITED STATES V. FERREIRA, 13 HOW.  40;
GORDON V. UNITED STATES, 117 U.S. 697; IN RE SANBORN, 148 U.S. 222;
INTERSTATE COMMERCE COMMISSION V. BRIMSON, 154 U.S. 447; LA ABRA SILVER
MINING CO. V. UNITED STATES, 175 U.S. 423; MUSKRAT V. UNITED STATES,
219 U.S. 346; UNITED STATES V. JEFFERSON ELECTRIC CO., 291 U.S. 386. 

WE CONCLUDE THAT ORDERS OF THE BOARD AS TO CERTIFICATES FOR OVERSEAS
OR FOREIGN AIR TRANSPORTATION ARE NOT MATURE AND ARE THEREFORE NOT
SUSCEPTIBLE OF JUDICIAL REVIEW AT ANY TIME BEFORE THEY ARE FINALIZED BY
PRESIDENTIAL APPROVAL.  AFTER SUCH APPROVAL HAS BEEN GIVEN, THE FINAL
ORDERS EMBODY PRESIDENTIAL DISCRETION AS TO POLITICAL MATTERS BEYOND
THE COMPETENCE OF THE COURTS TO ADJUDICATE.  THIS MAKES IT UNNECESSARY
TO EXAMINE THE OTHER QUESTIONS RAISED.  THE PETITION OF THE WATERMAN
STEAMSHIP CORP. SHOULD BE DISMISSED.  JUDGMENT REVERSED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE REED
AND MR. JUSTICE RUTLEDGE CONCUR, DISSENTING. 

CONGRESS HAS SPECIFICALLY PROVIDED FOR JUDICIAL REVIEW OF ORDERS OF
THE CIVIL AERONAUTICS BOARD OF THE KIND INVOLVED IN THIS CASE.  THAT
REVIEW CAN BE HAD WITHOUT INTRUDING ON THE EXCLUSIVE DOMAIN OF THE
CHIEF EXECUTIVE.  AND BY GRANTING IT WE GIVE EFFECT TO THE INTERESTS OF
BOTH THE CONGRESS AND THE CHIEF EXECUTIVE IN THIS FIELD. 

THE COMMERCE CLAUSE OF THE CONSTITUTION GRANTS CONGRESS CONTROL OVER
INTERSTATE AND FOREIGN COMMERCE.  ART. I, SEC. 8.  THE PRESENT ACT IS
AN EXERCISE OF THAT POWER.  CONGRESS CREATED THE BOARD AND DEFINED ITS
FUNCTIONS.  IT SPECIFIED THE STANDARDS WHICH THE BOARD IS TO APPLY IN
GRANTING CERTIFICATES FOR OVERSEAS AND FOREIGN AIR TRANSPORTATION.  FN1
IT EXPRESSLY MADE SUBJECT TO JUDICIAL REVIEW ORDERS OF THE BOARD
GRANTING OR DENYING CERTIFICATES TO CITIZENS AND WITHHELD JUDICIAL
REVIEW WHERE THE APPLICANTS ARE NOT CITIZENS.  FN2  IF THIS WERE ALL,
THERE WOULD BE NO QUESTION. 

BUT CONGRESS DID NOT LEAVE THE MATTER ENTIRELY TO THE BOARD. 
RECOGNIZING THE IMPORTANT ROLE THE PRESIDENT PLAYS IN MILITARY AND
FOREIGN AFFAIRS, IT MADE HIM A PARTICIPANT IN THE PROCESS. 
APPLICATIONS FOR CERTIFICATES OF THE TYPE INVOLVED HERE ARE TRANSMITTED
TO HIM BEFORE HEARING, ALL DECISIONS ON THE APPLICATIONS ARE SUBMITTED
TO HIM BEFORE THEIR PUBLICATION, AND THE ORDERS ARE "SUBJECT TO" HIS
APPROVAL.  FN3  SINCE HIS DECISIONS IN THESE MATTERS ARE OF A CHARACTER
WHICH INVOLVES AN EXERCISE OF HIS DISCRETION IN FOREIGN AFFAIRS OR
MILITARY MATTERS, I DO NOT THINK CONGRESS INTENDED THEM TO BE SUBJECT
TO JUDICIAL REVIEW. 

BUT REVIEW OF THE PRESIDENT'S ACTION DOES NOT RESULT FROM READING THE
STATUTE IN THE WAY IT IS WRITTEN.  CONGRESS MADE REVIEWABLE BY THE
COURTS ONLY ORDERS "ISSUED BY THE BOARD UNDER THIS ACT."  FN4  THOSE
ORDERS CAN BE REVIEWED WITHOUT REFERENCE TO ANY CONDUCT OF THE
PRESIDENT, FOR THAT PART OF THE ORDERS WHICH IS THE WORK OF THE BOARD
IS PLAINLY IDENTIFIABLE.  FN5  THE PRESIDENT IS PRESUMABLY CONCERNED
ONLY WITH THE IMPACT OF THE ORDER ON FOREIGN RELATIONS OR MILITARY
MATTERS.  TO THE EXTENT THAT HE DISAPPROVES ACTION TAKEN BY THE BOARD,
HIS ACTION CONTROLS.  BUT WHERE THAT IS NOT DONE, THE BOARD'S ORDER HAS
AN EXISTENCE INDEPENDENT OF PRESIDENTIAL APPROVAL, TRACING TO CONGRESS'
POWER TO REGULATE COMMERCE.  APPROVAL BY THE PRESIDENT UNDER THIS
STATUTORY SCHEME HAS RELEVANCE FOR PURPOSES OF REVIEW ONLY AS
INDICATING WHEN THE ACTION OF THE BOARD IS REVIEWABLE.  WHEN THE BOARD
HAS FINISHED WITH THE ORDER, THE ADMINISTRATIVE FUNCTION IS ENDED. 
WHEN THE ORDER FIXES RIGHTS, ON CLEARANCE BY THE PRESIDENT, IT BECOMES
REVIEWABLE.  BUT THE ACTION OF THE PRESIDENT DOES NOT BROADEN THE
REVIEW.  REVIEW IS RESTRICTED TO THE ACTION OF THE BOARD AND THE BOARD
ALONE. 

THE STATUTE, AS I CONSTRUE IT, CONTEMPLATES THAT CERTIFICATES ISSUED
WILL REST ON ORDERS OF THE BOARD WHICH SATISFY THE STANDARDS PRESCRIBED
BY CONGRESS.  PRESIDENTIAL APPROVAL CANNOT MAKE VALID INVALID ORDERS OF
THE BOARD.  HIS APPROVAL SUPPLEMENTS RATHER THAN SUPERSEDES BOARD
ACTION.  ONLY WHEN THE BOARD HAS ACTED WITHIN THE LIMITS OF ITS
AUTHORITY HAS THE BASIS BEEN LAID FOR ISSUANCE OF CERTIFICATES.  THE
REQUIREMENT THAT A VALID BOARD ORDER UNDERLIE EACH CERTIFICATE THUS
PROTECTS THE PRESIDENT AS WELL AS THE LITIGANTS AND THE PUBLIC INTEREST
AGAINST UNLAWFUL BOARD ACTION. 

THE IMPORTANCE OF THE PROBLEM IS EVIDENCED BY THE CHARACTER OF CASES
CONTROLLED BY THIS DECISION.  THE PRESENT RULING IS NOT LIMITED TO
CASES GRANTING OR DENYING CERTIFICATES FOR AIR TRANSPORTATION TO AND
FROM FOREIGN COUNTRIES.  IT ALSO DENIES POWER TO REVIEW ORDERS
GOVERNING AIR TRANSPORTATION BETWEEN TWO POINTS IN ALASKA, BETWEEN TWO
POINTS IN HAWAII, BETWEEN SEATTLE AND JUNEAU, BETWEEN NEW ORLEANS AND
SAN JUAN.  FN6  ALL OF THOSE ARE NOW BEYOND JUDICIAL REVIEW.  AND SO
THEY SHOULD BE SO FAR AS CONDUCT OF THE PRESIDENT IS CONCERNED.  BUT
CONGRESS HAS COMMANDED OTHERWISE AS TO ACTION BY THE BOARD.  THE BOARD
CAN ACT IN A LAWLESS WAY.  WITH THAT IN MIND, CONGRESS SOUGHT TO
PRESERVE THE INTEGRITY OF THE ADMINISTRATIVE PROCESS BY MAKING JUDICIAL
REVIEW A CHECK ON BOARD ACTION.  THAT WAS THE AIM OF CONGRESS, NOW
DEFEATED BY A LEGALISM WHICH IN MY VIEW DOES NOT SQUARE WITH REALITY. 

IN THIS PETITION FOR REVIEW, THE RESPONDENT CHARGED THAT THE BOARD
HAD NO SUBSTANTIAL EVIDENCE TO SUPPORT ITS FINDINGS THAT CHICAGO AND
SOUTHERN AIR LINES WAS FIT, WILLING AND ABLE TO PERFORM ITS OBLIGATIONS
UNDER THE CERTIFICATE; AND IT CHARGED THAT WHEN A CHANGE OF CONDITIONS
AS TO CHICAGO AND SOUTHERN AIR LINES' ABILITY TO PERFORM WAS CALLED TO
THE ATTENTION OF THE BOARD, THE BOARD REFUSED TO REOPEN THE CASE.  I DO
NOT KNOW WHETHER THERE IS MERIT IN THOSE CONTENTIONS.  BUT NO MATTER
HOW SUBSTANTIAL AND IMPORTANT THE QUESTIONS, THEY ARE NOW BEYOND
JUDICIAL REVIEW.  TODAY A LITIGANT TENDERS QUESTIONS CONCERNING THE
ARBITRARY CHARACTER OF THE BOARD'S RULING.  TOMORROW THOSE QUESTIONS
MAY RELATE TO THE RIGHT TO NOTICE, ADEQUACY OF HEARINGS, OR THE LACK OF
PROCEDURAL DUE PROCESS OF LAW.  BUT NO MATTER HOW EXTREME THE ACTION OF
THE BOARD, THE COURTS ARE POWERLESS TO CORRECT IT UNDER TODAY'S
DECISION.  THUS THE PURPOSE OF CONGRESS IS FRUSTRATED. 

JUDICIAL REVIEW WOULD ASSURE THE PRESIDENT, THE LITIGANTS AND THE
PUBLIC THAT THE BOARD HAD ACTED WITHIN THE LIMITS OF ITS AUTHORITY.  IT
WOULD CARRY OUT THE AIM OF CONGRESS TO GUARD AGAINST ADMINISTRATIVE
ACTION WHICH EXCEEDS THE STATUTORY BOUNDS.  IT WOULD GIVE EFFECT TO THE
INTERESTS OF BOTH CONGRESS AND THE PRESIDENT IN THIS FIELD. 

FN1  SEE SECS. 401, 408(B), 52 STAT. 987, 1001, 49 U.S.C. SECS. 481,
488. 

FN2  SECTION 1006(A) PROVIDES IN PART:  "ANY ORDER, AFFIRMATIVE OR
NEGATIVE, ISSUED BY THE BOARD UNDER THIS ACT, EXCEPT ANY ORDER IN
RESPECT OF ANY FOREIGN AIR CARRIER SUBJECT TO THE APPROVAL OF THE
PRESIDENT AS PROVIDED IN SECTION 801 OF THIS ACT, SHALL BE SUBJECT TO
REVIEW BY THE CIRCUIT COURTS OF APPEALS OF THE UNITED STATES OR THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA UPON
PETITION, FILED WITHIN SIXTY DAYS AFTER THE ENTRY OF SUCH ORDER, BY ANY
PERSON DISCLOSING A SUBSTANTIAL INTEREST IN SUCH ORDER."  52 STAT.
1024, 54 STAT. 1235, 49 U.S.C. SEC. 646(A). 

BEFORE ENGAGING IN AIR TRANSPORTATION.  52 STAT. 987, 49 U.S.C. SEC.
481(A).  THERE IS THE SAME REQUIREMENT IN CASE OF A FOREIGN AIR
CARRIER.  SEC. 402(A), 52 STAT. 991, 49 U.S.C. SEC. 482(A).  AN AIR
CARRIER IS DEFINED AS A CITIZEN WHO UNDERTAKES TO ENGAGE IN AIR
TRANSPORTATION (SEC. 1(2), 52 STAT. 977, 49 U.S.C. SEC. 401(2)), AND A
FOREIGN AIR CARRIER IS DEFINED AS ANY PERSON NOT A CITIZEN WHO
UNDERTAKES TO ENGAGE IN FOREIGN AIR TRANSPORTATION.  SEC. 1(19), 52
STAT. 978, 49 U.S.C. SEC. 401(19). 

FN3  SEC. 801, 52 STAT. 1014, 49 U.S.C. SEC. 601. 

FN4  SEC. 1006(A), SUPRA, NOTE 2. 

FN5  THE BOARD HAD CONSOLIDATED FOR HEARING 29 APPLICATIONS FOR
CERTIFICATES TO ENGAGE IN AIR TRANSPORTATION WHICH WERE FILED BY 15
APPLICANTS.  THE PRESIDENT'S PARTIAL DISAPPROVAL OF THE PROPOSED
DISPOSITION OF THESE APPLICATIONS DID NOT RELATE TO THE APPLICATIONS
INVOLVED IN THIS CASE.  AS TO THEM, THE ACTION OF THE BOARD STANDS
UNALTERED.    FN6  BY SEC. 801 THE APPROVAL OF THE PRESIDENT EXTENDS TO
ORDERS "AUTHORIZING AN AIR CARRIER TO ENGAGE IN OVERSEAS OR FOREIGN AIR
TRANSPORTATION, OR AIR TRANSPORTATION BETWEEN PLACES IN THE SAME
TERRITORY OR POSSESSION."  52 STAT. 1014, 49 U.S.C. SEC. 601.  SECTION
1(21) INCLUDES IN OVERSEAS AIR TRANSPORTATION COMMERCE BETWEEN A PLACE
IN THE CONTINENTAL UNITED STATES AND A PLACE IN A TERRITORY OR
POSSESSION OF THE UNITED STATES, OR BETWEEN A PLACE IN A TERRITORY OR
POSSESSION OF THE UNITED STATES AND A PLACE IN ANY OTHER TERRITORY OR
POSSESSION.  52 STAT. 979, 49 U.S.C. SEC. 401(21). 
..END :










LE MAISTRE V. LEFFERS, 333 U.S. 1 


NO. 362.  ARGUED JANUARY 7, 1948.  - DECIDED FEBRUARY 2, 1948.  - 159
FLA. 122, 31 SO.2D 155, REVERSED. 


1.  SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF
1940, AS AMENDED, TOLLS THE RUNNING OF THE TIME GRANTED UNDER STATE LAW
TO REDEEM LAND SOLD OR FORFEITED FOR TAXES FOR SO LONG AS THE OWNER WAS
IN MILITARY SERVICE AFTER OCTOBER 6, 1942, AND GIVES HIM A PERIOD IN
WHICH TO REDEEM AFTER HIS DISCHARGE EQUAL TO THAT PORTION OF THE STATE
STATUTORY PERIOD WHICH DID NOT RUN BECAUSE IT WAS SUSPENDED BY THIS
PROVISION OF THE FEDERAL ACT.  P. 3. 

2.  IT IS NOT LIMITED TO CASES WHERE THE STATE LAW PROVIDES FOR
TRANSFER OF TITLE TO A PURCHASER AT A TAX SALE SUBJECT TO DEFEASANCE BY
REDEMPTION, BUT APPLIES AS WELL TO CASES IN WHICH THE TAX SALE RESULTS
IN THE ISSUANCE OF A CERTIFICATE ENTITLING THE HOLDER TO APPLY FOR A
TAX DEED AFTER THE LAPSE OF A SPECIFIED TIME.  PP. 3-4. 

3.  IT APPLIES TO ALL KINDS OF LAND AND IS NOT LIMITED BY SEC. 500 TO
"REAL PROPERTY OWNED AND OCCUPIED FOR DWELLING, PROFESSIONAL, BUSINESS,
OR AGRICULTURAL PURPOSES."  PP. 4-6. 

4.  THE ACT MUST BE READ WITH AN EYE FRIENDLY TO THOSE WHO DROPPED
THEIR AFFAIRS TO ANSWER THEIR COUNTRY'S CALL.  P. 6. 

LE MAISTRE V. LEFFERS ET AL. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

THE SUPREME COURT OF FLORIDA AFFIRMED A JUDGMENT DENYING RELIEF UNDER
SEC. 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, AS
AMENDED.  159 FLA. 122, 31 SO.2D 155.  THIS COURT GRANTED CERTIORARI. 
332 U.S. 814.  REVERSED, P. 6. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

54 STAT. 1178, AS AMENDED, 56 STAT. 769, 770, 50 U.S.C. APP. SUPP. V,
SEC. 525, PROVIDES IN PART THAT NO PORTION OF THE PERIOD OF MILITARY
SERVICE  FN1  WHICH OCCURS AFTER OCTOBER 6, 1942,  FN2  SHALL BE
INCLUDED "IN COMPUTING ANY PERIOD NOW OR HEREAFTER PROVIDED BY ANY LAW
FOR THE REDEMPTION OF REAL PROPERTY SOLD OR FORFEITED TO ENFORCE ANY
OBLIGATION, TAX, OR ASSESSMENT." 

PETITIONER OWNED LAND IN FLORIDA ON WHICH TAXES BECAME DELINQUENT
APRIL 1, 1940.  UNDER FLORIDA STATUTORY PROCEDURE N3 THE TAX COLLECTOR
AFTER NOTICE SELLS THE LAND AT PUBLIC SALE AND ISSUES A TAX CERTIFICATE
TO THE PURCHASER.  AT ANY TIME AFTER TWO YEARS FROM THE DATE OF THE
CERTIFICATE THE HOLDER THEREOF MAY APPLY FOR A TAX DEED.  NOTICE IS
GIVEN, A PUBLIC SALE IS HAD, AND A TAX DEED IS ISSUED.  THE OWNER MAY
REDEEM THE LAND AT ANY TIME AFTER ISSUANCE OF THE CERTIFICATE AND
BEFORE ISSUANCE OF THE TAX DEED. 

IN ACCORDANCE WITH THIS PROCEDURE A TAX CERTIFICATE ON PETITIONER'S
LANDS WAS ISSUED AUGUST 5, 1940.  PETITIONER WAS ON ACTIVE DUTY IN THE
NAVY FROM AUGUST 18, 1942, UNTIL HIS DISCHARGE ON DECEMBER 18, 1945. 
APPLICATION FOR A TAX DEED WAS MADE BY ONE CONROD IN JANUARY, 1943, AND
THE DEED ISSUED TO HIM ON MARCH 1, 1943.  IT IS THROUGH HIM THAT
RESPONDENTS CLAIM BY MESNE CONVEYANCES. 

PETITIONER FILED THIS SUIT IN EQUITY ON MARCH 25, 1946, SEEKING TO
SET ASIDE THE TAX DEED BY REASON OF SEC. 205 OF THE SOLDIERS' AND
SAILORS' CIVIL RELIEF ACT.  THE FLORIDA SUPREME COURT AFFIRMED A
JUDGMENT DENYING THE RELIEF, 159 FLA. 122, 31 SO.2D 155, ON THE
AUTHORITY OF ITS EARLIER DECISION IN DE LOACH V. CALIHAN, 158 FLA. 639,
30 SO.2D 910.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED BECAUSE THE CONSTRUCTION GIVEN TO THE FEDERAL ACT
SEEMED TO US NOT ONLY A DUBIOUS ONE BUT ALSO AT VARIANCE WITH ILLINOIS
NAT. BANK V. GWINN, 390 ILL. 345, 61 N.E.2D 249. 

UNDER FLORIDA LAW PETITIONER CONCEDEDLY COULD HAVE REDEEMED ANY TIME
BETWEEN AUGUST 5, 1940, WHEN THE CERTIFICATE WAS ISSUED, AND MARCH 1,
1943, WHEN THE TAX DEED WAS ISSUED.  THE PROVISION OF THE FEDERAL ACT
WITH WHICH WE ARE HERE CONCERNED BECAME EFFECTIVE DURING THAT PERIOD -
OCTOBER 6, 1942.  AT THAT TIME PETITIONER WAS IN THE NAVY AND AT ONCE
BECAME A BENEFICIARY OF IT.  THAT MEANS THAT THE RUNNING OF THE TIME
GRANTED HIM UNDER FLORIDA LAW TO REDEEM WAS TOLLED AS LONG AS HE WAS IN
THE MILITARY SERVICE.  SINCE HE WOULD HAVE HAD FROM OCTOBER 6, 1942, TO
MARCH 1, 1943, TO REDEEM, THE EFFECT OF THE ACT WAS TO GIVE HIM THE
SAME LENGTH OF TIME AFTER HIS DISCHARGE FOR THAT PURPOSE.  HIS PRESENT
ACTION BEING TIMELY, THERE IS THUS NO BARRIER TO HIS RECOVERY SO FAR AS
THE ACT IS CONCERNED. 

TWO REASONS, HOWEVER, ARE ADVANCED AGAINST IT.  FIRST, IT IS ARGUED
THAT SEC. 205 APPLIES ONLY WHERE STATE LAW PROVIDES FOR TRANSFER OF
TITLE TO THE PURCHASER SUBJECT TO DEFEASANCE BY REDEMPTION.  THE
FLORIDA PROCEDURE IS SAID TO BE NOT COVERED BY SEC. 205 SINCE TITLE
PASSES ONLY ON ISSUANCE OF THE DEED, WHICH ENDS THE PERIOD OF
REDEMPTION.  WE DO NOT THINK SEC. 205 DESERVES SUCH A TECHNICAL
READING.  THE PROVISION IN QUESTION WAS ADDED IN 1942 TO REMEDY WHAT
THIS COURT HAD HELD TO BE A CASUS OMISSUS IN A PRECEDING ACT.  FN4
EBERT V. POSTON, 266 U.S. 548, 554.  ITS LANGUAGE DOES NOT COMPEL THE
NARROW READING THAT IS SUGGESTED; AND THE SPIRIT OF THE AMENDMENT
REPELS ANY SUCH RESTRICTION.  IT COVERS "ANY PERIOD  ...  PROVIDED BY
ANY LAW FOR THE REDEMPTION OF REAL PROPERTY SOLD OR FORFEITED," ETC.
WE SEE NEITHER IN THAT LANGUAGE NOR IN THE LEGISLATIVE HISTORY OF THE
PROVISION ANY PURPOSE TO RESTRICT ITS APPLICATION TO CASES WHERE
REDEMPTION FOLLOWS PASSAGE OF TITLE. 

THE SECOND REASON URGED AGAINST PETITIONER IS THE ONE ADOPTED BY THE
SUPREME COURT OF FLORIDA IN DE LOACH V. CALIHAN, SUPRA.  IT HELD THAT
SEC. 205 IS LIMITED BY SEC. 500.  THE LATTER SECTION GIVES ADDED
PROTECTION TO A PERSON IN MILITARY SERVICE BY PROVIDING THAT NO SALE
FOR TAXES OR ASSESSMENTS SHALL BE MADE EXCEPT UPON LEAVE OF COURT "IN
RESPECT OF  ...  REAL PROPERTY OWNED AND OCCUPIED FOR DWELLING,
PROFESSIONAL, BUSINESS, OR AGRICULTURAL PURPOSES," AND BY GRANTING A
GIVEN PERIOD FOR REDEMPTION.  FN5  THE SUPREME COURT OF FLORIDA HELD
THAT SEC. 500 DESCRIBES THE CLASS OF REAL PROPERTY ON WHICH A SOLDIER
OR SAILOR IS GRANTED INDULGENCE, WHILE SEC. 205 INDICATES THE PERIOD OF
THE INDULGENCE.  UNDER THAT VIEW PETITIONER WOULD FAIL BECAUSE THE
PROPERTY IN QUESTION DOES NOT APPEAR TO BE LAND "OWNED AND OCCUPIED FOR
DWELLING, PROFESSIONAL, BUSINESS, OR AGRICULTURAL PURPOSES." 

WE DO NOT, HOWEVER, READ THE ACT SO RESTRICTIVELY.  THE TWO SECTIONS
205 AND 500 - SUPPLEMENT EACH OTHER.  SECTION 500, APPLICABLE TO
RESTRICTED TYPES OF REAL PROPERTY, GIVES GREATER PROTECTION THAN SEC.
205.  IT RESTRAINS THE SALE FOR TAXES OR ASSESSMENTS OF SPECIFIED TYPES
OF REAL PROPERTY EXCEPT UPON LEAVE OF COURT AND PRESCRIBES FOR THEM A
SPECIFIED TIME WITHIN WHICH THE RIGHT TO REDEEM MAY BE EXERCISED IF THE
PROPERTY IS SOLD.  SECTION 205 EXTENDS IN TERMS TO ALL LAND AND ONLY
TOLLS THE TIME FOR REDEMPTION FOR THE PERIOD OF MILITARY SERVICE.  THE
OTHER CONSTRUCTION ATTRIBUTES TO CONGRESS A PURPOSE TO PROTECT ONLY
CERTAIN CLASSES OF REAL PROPERTY OWNED BY THOSE IN THE ARMED SERVICES. 
WE CANNOT DO THAT WITHOUT DRASTICALLY CONTRACTING THE LANGUAGE OF SEC.
205 AND CLOSING OUR EYES TO ITS BENEFICENT PURPOSE.  BUT AS WE
INDICATED ON ANOTHER OCCASION, THE ACT MUST BE READ WITH AN EYE
FRIENDLY TO THOSE WHO DROPPED THEIR AFFAIRS TO ANSWER THEIR COUNTRY'S
CALL.  BOONE V. LIGHTNER, 319 U.S. 561, 575.  REVERSED. 

FN1 THE TERM IS DEFINED IN SEC. 101(2) OF THE ACT AS FOLLOWS: 

"FOR PERSONS IN ACTIVE SERVICE AT THE DATE OF THE APPROVAL OF THIS
ACT IT SHALL BEGIN WITH THE DATE OF APPROVAL OF THIS ACT; FOR PERSONS
ENTERING ACTIVE SERVICE AFTER THE DATE OF THIS ACT, WITH THE DATE OF
ENTERING ACTIVE SERVICE.  IT SHALL TERMINATE WITH THE DATE OF DISCHARGE
FROM ACTIVE SERVICE OR DEATH WHILE IN ACTIVE SERVICE, BUT IN NO CASE
LATER THAN THE DATE WHEN THIS ACT CEASES TO BE IN FORCE." 

FN2  THAT WAS THE EFFECTIVE DATE OF THE AMENDMENT WHICH ADDED THIS
PROVISION TO SEC. 205. 

FN3  FLA. STATS. CC. 193, 194(1941). 

FN4  THE PURPOSE WAS STATED AS FOLLOWS:  "THE RUNNING OF THE
STATUTORY PERIOD DURING WHICH REAL PROPERTY MAY BE REDEEMED AFTER SALE
TO ENFORCE ANY OBLIGATION, TAX, OR ASSESSMENT IS LIKEWISE TOLLED DURING
THE PART OF SUCH PERIOD WHICH OCCURS AFTER THE ENACTMENT OF THE
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT AMENDMENTS OF 1942.  ALTHOUGH
THE TOLLING OF SUCH PERIODS IS NOW WITHIN THE SPIRIT OF THE LAW, IT HAS
NOT BEEN HELD TO BE WITHIN THE LETTER THEREOF (I.R. 1269 C.B., JUNE
1922, P. 311; EBERT V. POSTON, 266 U.S. 549)."  SEN. REP. NO. 1558,
77TH CONG., 2D SESS., P. 4. 

FN5  SECTION 500 READS IN PART: 

"(1)  THE PROVISIONS OF THIS SECTION SHALL APPLY WHEN ANY TAXES OR
ASSESSMENTS, WHETHER GENERAL OR SPECIAL (OTHER THAN TAXES ON INCOME),
WHETHER FALLING DUE PRIOR TO OR DURING THE PERIOD OF MILITARY SERVICE,
IN RESPECT OF PERSONAL PROPERTY, MONEY, OR CREDITS, OR REAL PROPERTY
OWNED AND OCCUPIED FOR DWELLING, PROFESSIONAL, BUSINESS, OR
AGRICULTURAL PURPOSES BY A PERSON IN MILITARY SERVICE OR HIS DEPENDENTS
AT THE COMMENCEMENT OF HIS PERIOD OF MILITARY SERVICE AND STILL SO
OCCUPIED BY HIS DEPENDENTS OR EMPLOYEES ARE NOT PAID. 

"(2)  NO SALE OF SUCH PROPERTY SHALL BE MADE TO ENFORCE THE
COLLECTION OF SUCH TAX OR ASSESSMENT, OR ANY PROCEEDING OR ACTION FOR
SUCH PURPOSE COMMENCED, EXCEPT UPON LEAVE OF COURT GRANTED UPON
APPLICATION MADE THEREFOR BY THE COLLECTOR OF TAXES OR OTHER OFFICER
WHOSE DUTY IT IS TO ENFORCE THE COLLECTION OF TAXES OR ASSESSMENTS. 
THE COURT THEREUPON, UNLESS IN ITS OPINION THE ABILITY OF THE PERSON IN
MILITARY SERVICE TO PAY SUCH TAXES OR ASSESSMENTS IS NOT MATERIALLY
AFFECTED BY REASON OF SUCH SERVICE, MAY STAY SUCH PROCEEDINGS OR SUCH
SALE, AS PROVIDED IN THIS ACT, FOR A PERIOD EXTENDING NOT MORE THAN SIX
MONTHS AFTER THE TERMINATION OF THE PERIOD OF MILITARY SERVICE OF SUCH
PERSON." 

"(3)  WHEN BY LAW SUCH PROPERTY MAY BE SOLD OR FORFEITED TO ENFORCE
THE COLLECTION OF SUCH TAX OR ASSESSMENT, SUCH PERSON IN MILITARY
SERVICE SHALL HAVE THE RIGHT TO REDEEM OR COMMENCE AN ACTION TO REDEEM
SUCH PROPERTY, AT ANY TIME NOT LATER THAN SIX MONTHS AFTER THE
TERMINATION OF SUCH SERVICE, BUT IN NO CASE LATER THAN SIX MONTHS AFTER
THE DATE WHEN THIS ACT CEASES TO BE IN FORCE; BUT THIS SHALL NOT BE
TAKEN TO SHORTEN ANY PERIOD, NOW OR HEREAFTER PROVIDED BY THE LAWS OF
ANY STATE OR TERRITORY FOR SUCH REDEMPTION." 
..END :




















FONG HAW TAN V. PHELAN, 333 U.S. 6 


NO. 370.  ARGUED JANUARY 8-9, 1948.  - DECIDED FEBRUARY 2, 1948.  - 162
F.2D 663, REVERSED. 


1.  SECTION 19(A) OF THE IMMIGRATION ACT OF 1917, AS AMENDED, WHICH
PROVIDES THAT AN ALIEN WHO IS "SENTENCED MORE THAN ONCE" TO
IMPRISONMENT FOR A TERM OF ONE YEAR OR MORE BECAUSE OF CONVICTION OF A
CRIME INVOLVING MORAL TURPITUDE COMMITTED AFTER ENTRY SHALL BE
DEPORTED, DOES NOT APPLY TO AN ALIEN WHO, IN A SINGLE TRIAL, HAS BEEN
CONVICTED ON TWO DIFFERENT COUNTS OF A SINGLE INDICTMENT FOR MURDERING
TWO DIFFERENT PERSONS AND SENTENCED TO LIFE IMPRISONMENT.  PP. 7-10. 

2.  THIS PROVISION OF THE STATUTE AUTHORIZES DEPORTATION ONLY WHERE
AN ALIEN, HAVING COMMITTED A CRIME INVOLVING MORAL TURPITUDE AND HAVING
BEEN CONVICTED AND SENTENCED, ONCE AGAIN COMMITS A CRIME OF THAT NATURE
AND IS CONVICTED AND SENTENCED FOR IT.  P. 9. 

3.  BECAUSE DEPORTATION IS A DRASTIC PENALTY EQUIVALENT TO BANISHMENT
OR EXILE, THIS SECTION SHOULD BE GIVEN THE NARROWEST OF SEVERAL
POSSIBLE MEANINGS OF THE WORDS USED.  P. 10. 

FONG HAW TAN V. PHELAN, ACTING DISTRICT DIRECTOR, IMMIGRATION AND
NATURALIZATION SERVICE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

A DISTRICT COURT DENIED AN ALIEN'S PETITION FOR A WRIT OF HABEAS
CORPUS CHALLENGING THE LEGALITY OF HIS DETENTION PENDING DEPORTATION. 
THE CIRCUIT COURT OF APPEALS AFFIRMED.  162 F.2D 663.  THIS COURT
GRANTED CERTIORARI.  332 U.S. 814.  REVERSED, P. 10. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

AN ALIEN WHO IS "SENTENCED MORE THAN ONCE" TO IMPRISONMENT FOR A TERM
OF ONE YEAR OR MORE BECAUSE OF CONVICTION IN THIS COUNTRY OF A CRIME
INVOLVING MORAL TURPITUDE COMMITTED AFTER HIS ENTRY SHALL, WITH
EXCEPTIONS NOT MATERIAL HERE, BE DEPORTED.  SECTION 19(A)  FN1  OF THE
IMMIGRATION ACT OF FEBRUARY 5, 1917, 39 STAT. 889, AS AMENDED 54 STAT.
671, 8 U.S.C. SEC. 155(A).  IT APPEARS THAT PETITIONER, A NATIVE OF
CHINA, WAS CONVICTED OF MURDER UNDER EACH OF TWO COUNTS OF AN
INDICTMENT, ONE COUNT CHARGING THE MURDER OF ONE LAI QUAN, THE OTHER
CHARGING THE MURDER ON OR ABOUT THE SAME DATE OF ONE ONG KIM.  FN2  THE
JURY FIXED THE PUNISHMENT FOR EACH MURDER AT LIFE IMPRISONMENT.  HE WAS
THEREUPON SENTENCED TO PRISON FOR THE PERIOD OF HIS NATURAL LIFE BY ONE
JUDGMENT, CONSTRUED BY THE CIRCUIT COURT OF APPEALS TO IMPOSE THAT
SENTENCE ON HIM FOR EACH OF THE CONVICTIONS.  SOMETIME THEREAFTER A
WARRANT FOR HIS DEPORTATION TO CHINA ISSUED.  LATER HE WAS PAROLED,
RELEASED FROM PRISON, AND TAKEN INTO THE CUSTODY OF THE IMMIGRATION
SERVICE.  HE THEN FILED A PETITION FOR A WRIT OF HABEAS CORPUS
CHALLENGING THE LEGALITY OF HIS DETENTION.  THE DISTRICT COURT DENIED
THE PETITION ON THE AUTHORITY OF NISHIMOTO V. NAGLE, 44 F.2D 304.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  162 F.2D 663.  THE CASE IS HERE ON
A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
CONTRARIETY OF VIEWS AMONG THE CIRCUITS CONCERNING THE MEANING OF THE
STATUTORY WORDS, "SENTENCED MORE THAN ONCE." 

THE NINTH CIRCUIT VIEW IS THAT A CONVICTION AND SENTENCE FOR MORE
THAN ONE OFFENSE, WHETHER AT THE SAME OR DIFFERENT TIMES AND WHETHER
CARRYING CONCURRENT OR CONSECUTIVE SENTENCES, SATISFY THE STATUTE. 
THAT WAS THE POSITION TAKEN IN NISHIMOTO V. NAGLE, SUPRA, AND FOLLOWED
BELOW.  THE SECOND CIRCUIT HOLDS THAT AN ALIEN WHO IS GIVEN CONSECUTIVE
SENTENCES IS SENTENCED MORE THAN ONCE, WHILE AN ALIEN WHO IS GIVEN
CONCURRENT SENTENCES IS NOT, EVEN THOUGH THE CRIMES ARE DISTINCT. 
JOHNSON V. UNITED STATES, 28 F.2D 810; UNITED STATES EX REL. MIGNOZZI
V. DAY, 51 F.2D 1019.  THE FOURTH CIRCUIT TAKES THE POSITION THAT THE
STATUTE IS SATISFIED WHETHER OR NOT THE SENTENCES IMPOSED RUN
CONCURRENTLY OR CONSECUTIVELY PROVIDED THAT THE TWO CRIMES WHICH ARE
COMMITTED AND FOR WHICH SEPARATE SENTENCES ARE IMPOSED ARISE OUT OF
SEPARATE TRANSACTIONS.  TASSARI V. SCHMUCKER, 53 F.2D 570.  THE FIFTH
CIRCUIT TAKES THE VIEW THAT AN ALIEN IS "SENTENCED ONCE WHEN, AFTER A
CONVICTION OR PLEA OF GUILTY, HE IS CALLED BEFORE THE BAR AND RECEIVES
JUDGMENT, WHETHER FOR ONE OR SEVERAL CRIMES, WITH ONE OR SEVERAL TERMS
OF IMPRISONMENT.  HE IS SENTENCED MORE THAN ONCE WHEN THAT HAPPENS
AGAIN."  WALLIS V. TECCHIO, 65 F.2D 250, 252.  THAT VIEW IS AN
ADAPTATION OF THE POSITION TAKEN EARLIER BY A DISTRICT COURT IN THE
SAME CIRCUIT THAT CONGRESS BY THIS PROVISION AIMED TO DEPORT
"REPEATERS," VIZ. "PERSONS WHO COMMIT A CRIME AND ARE SENTENCED, AND
THEN COMMIT ANOTHER AND ARE SENTENCED AGAIN."  OPOLICH V. FLUCKEY, 47
F.2D 950. 

THE LATTER IS THE READING WE GIVE THE STATUTE.  THERE IS A TRACE OF
THAT PURPOSE FOUND IN ITS LEGISLATIVE HISTORY.  CONGRESSMAN SABATH WHO
PROPOSED THE PROVISION AS AN AMENDMENT SAID IT WAS AIMED AT THE ALIEN
"WHO IS A CRIMINAL AT HEART, A MAN WHO IS GUILTY OF A SECOND OFFENSE
INVOLVING MORAL TURPITUDE AND FOR THE SECOND TIME IS CONVICTED."  53
CONG. REC. 5167.  CONGRESSMAN BURNETT, WHO WAS IN CHARGE OF THE BILL ON
THE FLOOR OF THE HOUSE, GAVE THE SAME EMPHASIS WHEN HE SAID THAT THE
AMENDMENT PROPOSED "THAT THOSE WHO COMMITTED A SECOND CRIME INVOLVING
MORAL TURPITUDE SHOWED THEN A CRIMINAL HEART AND A CRIMINAL TENDENCY,
AND THEY SHOULD THEN BE DEPORTED."  ID., P. 5168.  THE COMMITTEE REPORT
IN THE SENATE PUT THE MATTER INTO SHARPER FOCUS WHEN IT STATED THAT THE
PROVISION WAS "INTENDED TO REACH THE ALIEN WHO AFTER ENTRY SHOWS
HIMSELF TO BE A CRIMINAL OF THE CONFIRMED TYPE."  S. REP. NO. 352, 64TH
CONG., 1ST SESS., P. 15.  PERHAPS THE PLAINEST "CONFIRMED TYPE" OF
CRIMINAL IS THE REPEATER.  WE GIVE EXPRESSION TO THAT VIEW BY READING
THIS PROVISION OF THE STATUTE TO AUTHORIZE DEPORTATION ONLY WHERE AN
ALIEN HAVING COMMITTED A CRIME INVOLVING MORAL TURPITUDE AND HAVING
BEEN CONVICTED AND SENTENCED, ONCE AGAIN COMMITS A CRIME OF THAT NATURE
AND IS CONVICTED AND SENTENCED FOR IT. 

WE RESOLVE THE DOUBTS IN FAVOR OF THAT CONSTRUCTION BECAUSE
DEPORTATION IS A DRASTIC MEASURE AND AT TIMES THE EQUIVALENT OF
BANISHMENT OR EXILE, DELGADILLO V. CARMICHAEL, 332 U.S. 388.  IT IS THE
FORFEITURE FOR MISCONDUCT OF A RESIDENCE IN THIS COUNTRY.  SUCH A
FORFEITURE IS A PENALTY.  TO CONSTRUE THIS STATUTORY PROVISION LESS
GENEROUSLY TO THE ALIEN MIGHT FIND SUPPORT IN LOGIC.  BUT SINCE THE
STAKES ARE CONSIDERABLE FOR THE INDIVIDUAL, WE WILL NOT ASSUME THAT
CONGRESS MEANT TO TRENCH ON HIS FREEDOM BEYOND THAT WHICH IS REQUIRED
BY THE NARROWEST OF SEVERAL POSSIBLE MEANINGS OF THE WORDS USED. 
REVERSED. 

FN1  SECTION 19(A) SO FAR AS MATERIAL HERE PROVIDES: 

"  ...  EXCEPT AS HEREINAFTER PROVIDED, ANY ALIEN WHO IS HEREAFTER
SENTENCED TO IMPRISONMENT FOR A TERM OF ONE YEAR OR MORE BECAUSE OF
CONVICTION IN THIS COUNTRY OF A CRIME INVOLVING MORAL TURPITUDE,
COMMITTED WITHIN FIVE YEARS AFTER THE ENTRY OF THE ALIEN TO THE UNITED
STATES, OR WHO IS HEREAFTER SENTENCED MORE THAN ONCE TO SUCH A TERM OF
IMPRISONMENT BECAUSE OF CONVICTION IN THIS COUNTRY OF ANY CRIME
INVOLVING MORAL TURPITUDE, COMMITTED AT ANY TIME AFTER ENTRY  ...
SHALL, UPON THE WARRANT OF THE ATTORNEY GENERAL, BE TAKEN INTO CUSTODY
AND DEPORTED.  ...  THE PROVISION OF THIS SECTION RESPECTING THE
DEPORTATION OF ALIENS CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE
SHALL NOT APPLY TO ONE WHO HAS BEEN PARDONED, NOR SHALL SUCH
DEPORTATION BE MADE OR DIRECTED IF THE COURT, OR JUDGE THEREOF,
SENTENCING SUCH ALIEN FOR SUCH CRIME SHALL, AT THE TIME OF IMPOSING
JUDGMENT OR PASSING SENTENCE OR WITHIN THIRTY DAYS THEREAFTER, DUE
NOTICE HAVING FIRST BEEN GIVEN TO REPRESENTATIVES OF THE STATE, MAKE A
RECOMMENDATION TO THE ATTORNEY GENERAL THAT SUCH ALIEN SHALL NOT BE
DEPORTED IN PURSUANCE OF THIS ACT; NOR SHALL ANY ALIEN CONVICTED AS
AFORESAID BE DEPORTED UNTIL AFTER THE TERMINATION OF HIS IMPRISONMENT
...  " 

FN2  WHETHER THE TWO MURDERS RESULTED FROM ONE ACT OR FROM TWO DOES
NOT APPEAR. 
..END :



JOHNSON V. UNITED STATES, 333 U.S. 10 


NO. 329.  ARGUED DECEMBER 18, 1947.  - DECIDED FEBRUARY 2, 1948.  - 162
F.2D 562, REVERSED. 


1.  WHERE OFFICERS DETECTED THE ODOR OF BURNING OPIUM EMANATING FROM A
HOTEL ROOM, ENTERED WITHOUT A SEARCH WARRANT AND WITHOUT KNOWING WHO
WAS THERE, ARRESTED THE ONLY OCCUPANT, SEARCHED THE ROOM AND FOUND
OPIUM AND SMOKING APPARATUS, THE SEARCH VIOLATED THE FOURTH AMENDMENT
TO THE FEDERAL CONSTITUTION; AND A CONVICTION FOR A VIOLATION OF THE
FEDERAL NARCOTIC LAWS BASED ON THE EVIDENCE THUS OBTAINED CANNOT BE
SUSTAINED.  PP. 11-17. 

2.  AS A GENERAL RULE, THE QUESTION WHEN THE RIGHT OF PRIVACY MUST
REASONABLY YIELD TO THE RIGHT OF SEARCH MUST BE DECIDED BY A JUDICIAL
OFFICER, NOT BY A POLICEMAN OR GOVERNMENT ENFORCEMENT AGENT.  PP. 13
14. 

3.  THERE WERE NO EXCEPTIONAL CIRCUMSTANCES IN THIS CASE SUFFICIENT
TO JUSTIFY THE FAILURE OF THE OFFICER TO OBTAIN A SEARCH WARRANT.  PP.
14-15. 

4.  IT BEING CONCEDED THAT THE OFFICER DID NOT HAVE PROBABLE CAUSE TO
ARREST PETITIONER UNTIL HE ENTERED THE ROOM AND FOUND HER TO BE THE
SOLE OCCUPANT, THE SEARCH CANNOT BE SUSTAINED AS BEING INCIDENT TO A
VALID ARREST.  PP. 15-16. 

5.  THE GOVERNMENT CANNOT AT THE SAME TIME JUSTIFY AN ARREST BY A
SEARCH AND JUSTIFY THE SEARCH BY THE ARREST.  PP. 16-19. 

6.  AN OFFICER GAINING ACCESS TO PRIVATE LIVING QUARTERS UNDER COLOR
OF HIS OFFICE AND OF THE LAW MUST THEN HAVE SOME VALID BASIS IN LAW FOR
THE INTRUSION.  P. 17. 

JOHNSON V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PETITIONER WAS CONVICTED IN A FEDERAL DISTRICT COURT ON EVIDENCE
OBTAINED BY A SEARCH MADE WITHOUT A WARRANT.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  162 F.2D 562.  THIS COURT GRANTED CERTIORARI.  332
U.S. 807.  REVERSED, P. 17. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED ON FOUR COUNTS CHARGING VIOLATION OF FEDERAL
NARCOTIC LAWS.  FN1  THE ONLY QUESTION WHICH BRINGS THE CASE HERE IS
WHETHER IT WAS LAWFUL, WITHOUT A WARRANT OF ANY KIND, TO ARREST
PETITIONER AND TO SEARCH HER LIVING QUARTERS. 

TAKING THE GOVERNMENT'S VERSION OF DISPUTED EVENTS, DECISION WOULD
REST ON THESE FACTS: 

AT ABOUT 7:30 P.M. DETECTIVE LIEUTENANT BELLAND, AN OFFICER OF THE
SEATTLE POLICE FORCE NARCOTIC DETAIL, RECEIVED INFORMATION FROM A
CONFIDENTIAL INFORMER, WHO WAS ALSO A KNOWN NARCOTIC USER, THAT UNKNOWN
PERSONS WERE SMOKING OPIUM IN THE EUROPE HOTEL.  THE INFORMER WAS TAKEN
BACK TO THE HOTEL TO INTERVIEW THE MANAGER, BUT HE RETURNED AT ONCE
SAYING HE COULD SMELL BURNING OPIUM IN THE HALLWAY.  BELLAND
COMMUNICATED WITH FEDERAL NARCOTIC AGENTS AND BETWEEN 8:30 AND 9
O'CLOCK WENT BACK TO THE HOTEL WITH FOUR SUCH AGENTS.  ALL WERE
EXPERIENCED IN NARCOTIC WORK AND RECOGNIZED AT ONCE A STRONG ODOR OF
BURNING OPIUM WHICH TO THEM WAS DISTINCTIVE AND UNMISTAKABLE.  THE ODOR
LED TO ROOM 1.  THE OFFICERS DID NOT KNOW WHO WAS OCCUPYING THAT ROOM. 
THEY KNOCKED AND A VOICE INSIDE ASKED WHO WAS THERE.  "LIEUTENANT
BELLAND," WAS THE REPLY.  THERE WAS A SLIGHT DELAY, SOME "SHUFFLING OR
NOISE" IN THE ROOM AND THEN THE DEFENDANT OPENED THE DOOR.  THE OFFICER
SAID, "I WANT TO TALK TO YOU A LITTLE BIT."  SHE THEN, AS HE DESCRIBES
IT, "STEPPED BACK ACQUIESCENTLY AND ADMITTED US."  HE SAID, "I WANT TO
TALK TO YOU ABOUT THIS OPIUM SMELL IN THE ROOM HERE."  SHE DENIED THAT
THERE WAS SUCH A SMELL.  THEN HE SAID, "I WANT YOU TO CONSIDER YOURSELF
UNDER ARREST BECAUSE WE ARE GOING TO SEARCH THE ROOM."  THE SEARCH
TURNED UP INCRIMINATING OPIUM AND SMOKING APPARATUS, THE LATTER BEING
WARM, APPARENTLY FROM RECENT USE.  THIS EVIDENCE THE DISTRICT COURT
REFUSED TO SUPPRESS BEFORE TRIAL AND ADMITTED OVER DEFENDANT'S
OBJECTION AT THE TRIAL.  CONVICTION RESULTED AND THE CIRCUIT COURT OF
APPEALS AFFIRMED.  FN2 

THE DEFENDANT CHALLENGED THE SEARCH OF HER HOME AS A VIOLATION OF THE
RIGHTS SECURED TO HER, IN COMMON WITH OTHERS, BY THE FOURTH AMENDMENT
TO THE CONSTITUTION.  THE GOVERNMENT DEFENDS THE SEARCH AS LEGALLY
JUSTIFIABLE, MORE PARTICULARLY AS INCIDENT TO WHAT IT URGES WAS A
LAWFUL ARREST OF THE PERSON. 

                                  I. 

THE FOURTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
PROVIDES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

ENTRY TO DEFENDANT'S LIVING QUARTERS, WHICH WAS THE BEGINNING OF THE
SEARCH, WAS DEMANDED UNDER COLOR OF OFFICE.  IT WAS GRANTED IN
SUBMISSION TO AUTHORITY RATHER THAN AS AN UNDERSTANDING AND INTENTIONAL
WAIVER OF A CONSTITUTIONAL RIGHT.  CF. AMOS V. UNITED STATES, 255 U.S.
313. 

AT THE TIME ENTRY WAS DEMANDED THE OFFICERS WERE POSSESSED OF
EVIDENCE WHICH A MAGISTRATE MIGHT HAVE FOUND TO BE PROBABLE CAUSE FOR
ISSUING A SEARCH WARRANT.  WE CANNOT SUSTAIN DEFENDANT'S CONTENTION,
ERRONEOUSLY MADE, ON THE STRENGTH OF TAYLOR V. UNITED STATES, 286 U.S.
1, THAT ODORS CANNOT BE EVIDENCE SUFFICIENT TO CONSTITUTE PROBABLE
GROUNDS FOR ANY SEARCH.  THAT DECISION HELD ONLY THAT ODORS ALONE DO
NOT AUTHORIZE A SEARCH WITHOUT WARRANT.  IF THE PRESENCE OF ODORS IS
TESTIFIED TO BEFORE A MAGISTRATE AND HE FINDS THE AFFIANT QUALIFIED TO
KNOW THE ODOR, AND IT IS ONE SUFFICIENTLY DISTINCTIVE TO IDENTIFY A
FORBIDDEN SUBSTANCE, THIS COURT HAS NEVER HELD SUCH A BASIS
INSUFFICIENT TO JUSTIFY ISSUANCE OF A SEARCH WARRANT.  INDEED IT MIGHT
VERY WELL BE FOUND TO BE EVIDENCE OF MOST PERSUASIVE CHARACTER. 

THE POINT OF THE FOURTH AMENDMENT, WHICH OFTEN IS NOT GRASPED BY
ZEALOUS OFFICERS, IS NOT THAT IT DENIES LAW ENFORCEMENT THE SUPPORT OF
THE USUAL INFERENCES WHICH REASONABLE MEN DRAW FROM EVIDENCE.  ITS
PROTECTION CONSISTS IN REQUIRING THAT THOSE INFERENCES BE DRAWN BY A
NEUTRAL AND DETACHED MAGISTRATE INSTEAD OF BEING JUDGED BY THE OFFICER
ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE OF FERRETING OUT CRIME. 
FN3  ANY ASSUMPTION THAT EVIDENCE SUFFICIENT TO SUPPORT A MAGISTRATE'S
DISINTERESTED DETERMINATION TO ISSUE A SEARCH WARRANT WILL JUSTIFY THE
OFFICERS IN MAKING A SEARCH WITHOUT A WARRANT WOULD REDUCE THE
AMENDMENT TO A NULLITY AND LEAVE THE PEOPLE'S HOMES SECURE ONLY IN THE
DISCRETION OF POLICE OFFICERS.  FN4  CRIME, EVEN IN THE PRIVACY OF
ONE'S OWN QUARTERS, IS, OF COURSE, OF GRAVE CONCERN TO SOCIETY, AND THE
LAW ALLOWS SUCH CRIME TO BE REACHED ON PROPER SHOWING.  THE RIGHT OF
OFFICERS TO THRUST THEMSELVES INTO A HOME IS ALSO A GRAVE CONCERN, NOT
ONLY TO THE INDIVIDUAL BUT TO A SOCIETY WHICH CHOOSES TO DWELL IN
REASONABLE SECURITY AND FREEDOM FROM SURVEILLANCE.  WHEN THE RIGHT OF
PRIVACY MUST REASONABLY YIELD TO THE RIGHT OF SEARCH IS, AS A RULE, TO
BE DECIDED BY A JUDICIAL OFFICER, NOT BY A POLICEMAN OR GOVERNMENT
ENFORCEMENT AGENT. 

THERE ARE EXCEPTIONAL CIRCUMSTANCES IN WHICH, ON BALANCING THE NEED
FOR EFFECTIVE LAW ENFORCEMENT AGAINST THE RIGHT OF PRIVACY, IT MAY BE
CONTENDED THAT A MAGISTRATE'S WARRANT FOR SEARCH MAY BE DISPENSED
WITH.  BUT THIS IS NOT SUCH A CASE.  NO REASON IS OFFERED FOR NOT
OBTAINING A SEARCH WARRANT EXCEPT THE INCONVENIENCE TO THE OFFICERS AND
SOME SLIGHT DELAY NECESSARY TO PREPARE PAPERS AND PRESENT THE EVIDENCE
TO A MAGISTRATE.  THESE ARE NEVER VERY CONVINCING REASONS AND, IN THESE
CIRCUMSTANCES, CERTAINLY ARE NOT ENOUGH TO BY-PASS THE CONSTITUTIONAL
REQUIREMENT.  NO SUSPECT WAS FLEEING OR LIKELY TO TAKE FLIGHT.  THE
SEARCH WAS OF PERMANENT PREMISES, NOT OF A MOVABLE VEHICLE.  NO
EVIDENCE OR CONTRABAND WAS THREATENED WITH REMOVAL OR DESTRUCTION,
EXCEPT PERHAPS THE FUMES WHICH WE SUPPOSE IN TIME WOULD DISAPPEAR.  BUT
THEY WERE NOT CAPABLE AT ANY TIME OF BEING REDUCED TO POSSESSION FOR
PRESENTATION TO COURT.  THE EVIDENCE OF THEIR EXISTENCE BEFORE THE
SEARCH WAS ADEQUATE AND THE TESTIMONY OF THE OFFICERS TO THAT EFFECT
WOULD NOT PERISH FROM THE DELAY OF GETTING A WARRANT. 

IF THE OFFICERS IN THIS CASE WERE EXCUSED FROM THE CONSTITUTIONAL
DUTY OF PRESENTING THEIR EVIDENCE TO A MAGISTRATE, IT IS DIFFICULT TO
THINK OF A CASE IN WHICH IT SHOULD BE REQUIRED. 

                                 II. 

THE GOVERNMENT CONTENDS, HOWEVER, THAT THIS SEARCH WITHOUT WARRANT
MUST BE HELD VALID BECAUSE INCIDENT TO AN ARREST.  THIS ALLEGED GROUND
OF VALIDITY REQUIRES EXAMINATION OF THE FACTS TO DETERMINE WHETHER THE
ARREST ITSELF WAS LAWFUL.  SINCE IT WAS WITHOUT WARRANT, IT COULD BE
VALID ONLY IF FOR A CRIME COMMITTED IN THE PRESENCE OF THE ARRESTING
OFFICER OR FOR A FELONY OF WHICH HE HAD REASONABLE CAUSE TO BELIEVE
DEFENDANT GUILTY.  FN5 

THE GOVERNMENT, IN EFFECT, CONCEDES THAT THE ARRESTING OFFICER DID
NOT HAVE PROBABLE CAUSE TO ARREST PETITIONER UNTIL HE HAD ENTERED HER
ROOM AND FOUND HER TO BE THE SOLE OCCUPANT.  FN6  IT POINTS OUT
SPECIFICALLY, REFERRING TO THE TIME JUST BEFORE ENTRY, "FOR AT THAT
TIME THE AGENTS DID NOT KNOW WHETHER THERE WAS ONE OR SEVERAL PERSONS
IN THE ROOM.  IT WAS REASONABLE TO BELIEVE THAT THE ROOM MIGHT HAVE
BEEN AN OPIUM SMOKING DEN."  AND IT SAYS, "  ...  THAT WHEN THE AGENTS
WERE ADMITTED INTO THE ROOM AND FOUND ONLY PETITIONER PRESENT THEY HAD
A REASONABLE BASIS FOR BELIEVING THAT SHE HAD BEEN SMOKING OPIUM AND
THUS ILLICITLY POSSESSED THE NARCOTIC."  THUS THE GOVERNMENT QUITE
PROPERLY STAKES THE RIGHT TO ARREST, NOT ON THE INFORMER'S TIP AND THE
SMELL THE OFFICERS RECOGNIZED BEFORE ENTRY, BUT ON THE KNOWLEDGE THAT
SHE WAS ALONE IN THE ROOM, GAINED ONLY AFTER, AND WHOLLY BY REASON OF,
THEIR ENTRY OF HER HOME.  IT WAS THEREFORE THEIR OBSERVATIONS INSIDE OF
HER QUARTERS, AFTER THEY HAD OBTAINED ADMISSION UNDER COLOR OF THEIR
POLICE AUTHORITY, ON WHICH THEY MADE THE ARREST.  FN7 

THUS THE GOVERNMENT IS OBLIGED TO JUSTIFY THE ARREST BY THE SEARCH
AND AT THE SAME TIME TO JUSTIFY THE SEARCH BY THE ARREST.  THIS WILL
NOT DO.  AN OFFICER GAINING ACCESS TO PRIVATE LIVING QUARTERS UNDER
COLOR OF HIS OFFICE AND OF THE LAW WHICH HE PERSONIFIES MUST THEN HAVE
SOME VALID BASIS IN LAW FOR THE INTRUSION.  ANY OTHER RULE WOULD
UNDERMINE "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS, AND EFFECTS,"  FN8  AND WOULD OBLITERATE ONE OF THE
MOST FUNDAMENTAL DISTINCTIONS BETWEEN OUR FORM OF GOVERNMENT, WHERE
OFFICERS ARE UNDER THE LAW, AND THE POLICE-STATE WHERE THEY ARE THE
LAW.  REVERSED. 

FN1  TWO COUNTS CHARGED VIOLATION OF SEC. 2553(A) OF THE INTERNAL
REVENUE CODE (26 U.S.C. SEC. 2553(A)) AND TWO COUNTS CHARGED VIOLATION
OF THE NARCOTIC DRUGS IMPORT AND EXPORT ACT AS AMENDED (21 U.S.C. SEC.
174). 

FN2  162 F.2D 562. 

FN3  IN UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 464, THIS COURT
SAID:  "  ...  THE INFORMED AND DELIBERATE DETERMINATIONS OF
MAGISTRATES EMPOWERED TO ISSUE WARRANTS AS TO WHAT SEARCHES AND
SEIZURES ARE PERMISSIBLE UNDER THE CONSTITUTION ARE TO BE PREFERRED
OVER THE HURRIED ACTION OF OFFICERS AND OTHERS WHO MAY HAPPEN TO MAKE
ARRESTS.  SECURITY AGAINST UNLAWFUL SEARCHES IS MORE LIKELY TO BE
ATTAINED BY RESORT TO SEARCH WARRANTS THAN BY RELIANCE UPON THE CAUTION
AND SAGACITY OF PETTY OFFICERS WHILE ACTING UNDER THE EXCITEMENT THAT
ATTENDS THE CAPTURE OF PERSONS ACCUSED OF CRIME.  ...  " 

FN4  "BELIEF, HOWEVER WELL FOUNDED, THAT AN ARTICLE SOUGHT IS
CONCEALED IN A DWELLING HOUSE FURNISHES NO JUSTIFICATION FOR A SEARCH
OF THAT PLACE WITHOUT A WARRANT.  AND SUCH SEARCHES ARE HELD UNLAWFUL
NOTWITHSTANDING FACTS UNQUESTIONABLY SHOWING PROBABLE CAUSE."  AGNELLO
V. UNITED STATES, 269 U.S. 20, 33. 

FN5  THIS IS THE WASHINGTON LAW.  STATE V. SYMES, 20 WASH. 484, 55 P.
626; STATE V. LINDSEY, 192 WASH. 356, 73 P.2D 738; STATE V. KRANTZ, 24
WASH.2D 350, 164 P.2D 453; STATE V. ROBBINS, 25 WASH.2D 110, 169 P.2D
246.  STATE LAW DETERMINES THE VALIDITY OF ARRESTS WITHOUT WARRANT. 
UNITED STATES V. DI RE, 332 U.S. 581. 

FN6  THE GOVERNMENT BRIEF STATES THAT THE QUESTION PRESENTED IS
"WHETHER THERE WAS PROBABLE CAUSE FOR THE ARREST OF PETITIONER FOR
POSSESSING OPIUM PREPARED FOR SMOKING AND THE SEARCH OF HER ROOM IN A
HOTEL INCIDENT THERETO FOR THE CONTRABAND OPIUM, WHERE EXPERIENCED
NARCOTIC AGENTS UNMISTAKABLY DETECTED AND TRACED THE PUNGENT,
IDENTIFIABLE ODOR OF BURNING OPIUM EMANATING FROM HER ROOM AND KNEW,
BEFORE THEY ARRESTED HER, THAT SHE WAS THE ONLY PERSON IN THE ROOM." 

FN7  THE GOVERNMENT ALSO SUGGESTS THAT "IN A SENSE, THE ARREST WAS
MADE IN 'HOT PURSUIT.'  ... "  HOWEVER, WE FIND NO ELEMENT OF "HOT
PURSUIT" IN THE ARREST OF ONE WHO WAS NOT IN FLIGHT, WAS COMPLETELY
SURROUNDED BY AGENTS BEFORE SHE KNEW OF THEIR PRESENCE, WHO CLAIMS
WITHOUT DENIAL THAT SHE WAS IN BED AT THE TIME, AND WHO MADE NO ATTEMPT
TO ESCAPE.  NOR WOULD THESE FACTS SEEM TO MEET THE REQUIREMENTS OF THE
WASHINGTON "UNIFORM LAW ON FRESH PURSUIT."  SESSION LAWS 1943, CH.
261. 

FN8  IN GOULED V. UNITED STATES, 255 U.S. 303, 304, THIS COURT SAID:
"IT WOULD NOT BE POSSIBLE TO ADD TO THE EMPHASIS WITH WHICH THE FRAMERS
OF OUR CONSTITUTION AND THIS COURT (IN BOYD V. UNITED STATES, 116 U.S.
616, IN WEEKS V. UNITED STATES, 232 U.S. 383, AND IN SILVERTHORNE
LUMBER CO. V. UNITED STATES, 251 U.S. 385) HAVE DECLARED THE IMPORTANCE
TO POLITICAL LIBERTY AND TO THE WELFARE OF OUR COUNTRY OF THE DUE
OBSERVANCE OF THE RIGHTS GUARANTEED UNDER THE CONSTITUTION BY THESE TWO
(FOURTH AND FIFTH) AMENDMENTS.  THE EFFECT OF THE DECISIONS CITED IS:
THAT SUCH RIGHTS ARE DECLARED TO BE INDISPENSABLE TO THE 'FULL
ENJOYMENT OF PERSONAL SECURITY, PERSONAL LIBERTY AND PRIVATE PROPERTY';
THAT THEY ARE TO BE REGARDED AS OF THE VERY ESSENCE OF CONSTITUTIONAL
LIBERTY; AND THAT THE GUARANTY OF THEM IS AS IMPORTANT AND AS
IMPERATIVE AS ARE THE GUARANTIES OF THE OTHER FUNDAMENTAL RIGHTS OF THE
INDIVIDUAL CITIZEN,  - THE RIGHT, TO TRIAL BY JURY, TO THE WRIT OF
HABEAS CORPUS AND TO DUE PROCESS OF LAW.  IT HAS BEEN REPEATEDLY
DECIDED THAT THESE AMENDMENTS SHOULD RECEIVE A LIBERAL CONSTRUCTION, SO
AS TO PREVENT STEALTHY ENCROACHMENT UPON OR 'GRADUAL DEPRECIATION' OF
THE RIGHTS SECURED BY THEM, BY IMPERCEPTIBLE PRACTICE OF COURTS OR BY
WELL-INTENTIONED BUT MISTAKENLY OVER-ZEALOUS EXECUTIVE OFFICERS." 

THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE REED AND MR.
JUSTICE BURTON DISSENT. 
..END :










UNITED STATES V. BROWN, 333 U.S. 18 


NO. 100.  ARGUED JANUARY 5-6, 1948.  - DECIDED FEBRUARY 2, 1948.  - 160
F.2D 310, REVERSED. 


1.  UNDER THE FEDERAL ESCAPE ACT, A SENTENCE FOR ESCAPE OR ATTEMPT TO
ESCAPE WHILE SERVING ONE OF SEVERAL CONSECUTIVE SENTENCES IS TO BE
SUPERIMPOSED UPON ALL PRIOR SENTENCES SERVICE OF WHICH HAS NOT BEEN
COMPLETED AND IS TO BEGIN UPON THE EXPIRATION OF THE LAST OF THE PRIOR
SENTENCES.  PP. 18-27. 

2.  THE CANON IN FAVOR OF STRICT CONSTRUCTION OF PENAL STATUTES IS
NOT AN INEXORABLE COMMAND TO OVERRIDE COMMON SENSE AND EVIDENT
STATUTORY PURPOSE.  P. 25. 

UNITED STATES V. BROWN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

RESPONDENT'S MOTION FOR CORRECTION OF A SENTENCE IMPOSED UPON HIM FOR
AN OFFENSE UNDER THE FEDERAL ESCAPE ACT WAS OVERRULED BY THE DISTRICT
COURT.  67 F.SUPP.  116.  THE CIRCUIT COURT OF APPEALS REVERSED AND
REMANDED THE CAUSE TO THE DISTRICT COURT.  160 F.2D 310.  THIS COURT
GRANTED CERTIORARI.  332 U.S. 755.  REVERSED, P. 27. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL ESCAPE ACT REQUIRES THAT A SENTENCE FOR ESCAPE OR ATTEMPT
TO ESCAPE "SHALL BEGIN UPON THE EXPIRATION OF, OR UPON LEGAL RELEASE
FROM, ANY SENTENCE UNDER WHICH SUCH PERSON IS HELD AT THE TIME OF" THE
ESCAPE OR ATTEMPT.  FN1  THE NARROW QUESTION IS WHETHER THE ACT
REQUIRES THAT A SENTENCE FOR ATTEMPT TO ESCAPE SHALL BEGIN UPON THE
EXPIRATION OF THE PARTICULAR SENTENCE BEING SERVED WHEN THE ATTEMPT
OCCURS OR AT THE EXPIRATION OF THE AGGREGATE TERM OF CONSECUTIVE
SENTENCES THEN IN EFFECT, OF WHICH THE ONE BEING SERVED IS THE FIRST. 

THE FACTS ARE THESE.  RESPONDENT WAS CHARGED UNDER TWO INDICTMENTS IN
THE DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS.  ONE CONTAINED
TWO COUNTS, THE FIRST CHARGING CONSPIRACY TO ESCAPE, THE SECOND ATTEMPT
TO ESCAPE.  THE OTHER INDICTMENT WAS FOR VIOLATION OF THE NATIONAL
MOTOR VEHICLE THEFT ACT.  41 STAT. 324, 59 STAT. 536.  RESPONDENT
PLEADED GUILTY TO ALL THREE CHARGES.  ON OCTOBER 26, 1945, HE WAS
SENTENCED AS FOLLOWS:  UNDER THE FIRST INDICTMENT CHARGING THE ESCAPE
OFFENSES, IMPRISONMENT FOR ONE YEAR ON THE SECOND COUNT, AND FOR TWO
YEARS ON THE FIRST COUNT, THE SENTENCES TO RUN CONSECUTIVELY IN THAT
ORDER; UNDER THE MOTOR VEHICLE THEFT INDICTMENT, IMPRISONMENT FOR TWO
YEARS, TO RUN CONSECUTIVELY TO THE OTHER TWO.  THUS THE AGGREGATE OF
THE THREE CONSECUTIVE SENTENCES WAS FIVE YEARS. 

ON NOVEMBER 2, 1945, RESPONDENT WAS SERVING THE ONE-YEAR TERM OF THE
FIRST SENTENCE AS ORDERED BY THE COURT.  ON THAT DATE HE WAS BEING
TRANSPORTED IN CUSTODY OF A UNITED STATES MARSHAL FROM AN ARKANSAS JAIL
TO LEAVENWORTH PENITENTIARY IN KANSAS.  FN2  DURING THE JOURNEY'S
PROGRESS THROUGH MISSOURI HE ATTEMPTED TO ESCAPE.  THIS RESULTED IN
ANOTHER INDICTMENT, IN THE WESTERN DISTRICT OF MISSOURI, TO WHICH ALSO
RESPONDENT PLEADED GUILTY.  THE DISTRICT COURT SENTENCED HIM TO
IMPRISONMENT FOR FIVE YEARS, THE TERM "TO BEGIN AT THE EXPIRATION OF
ANY SENTENCE HE IS NOW SERVING, OR TO BE SERVED WHICH WAS IMPOSED PRIOR
TO THIS DATE  ...  " 

RESPONDENT FILED A MOTION TO CORRECT THIS LAST SENTENCE.  HE
CONTENDED THAT AT THE TIME OF THE LAST ATTEMPT HE WAS BEING "HELD,"
WITHIN THE MEANING OF THE LAST SENTENCE OF THE FEDERAL ESCAPE ACT, ONLY
UNDER THE ONE-YEAR SENTENCE PRONOUNCED IN THE WESTERN DISTRICT OF
ARKANSAS, AND THAT THE ACT REQUIRED THE FIVE-YEAR SENTENCE UNDER THE
INDICTMENT RETURNED IN MISSOURI TO COMMENCE AT THE EXPIRATION OF THAT
ONE-YEAR TERM. 

THE DISTRICT COURT OVERRULED THE MOTION.  IT HELD THAT UNDER THE
STATUTE THE SENTENCING COURT COULD ORDER THAT THE SENTENCE BEGIN TO RUN
AFTER THE SERVICE OF ANY ONE OR ALL OF RESPONDENT'S THREE PRIOR
SENTENCES.  67 F.SUPP.  116.  THE CIRCUIT COURT OF APPEALS, HOWEVER,
REVERSED THE JUDGMENT.  RELYING ON THE CANON OF STRICT CONSTRUCTION OF
CRIMINAL STATUTES, IT EQUATED THE STATUTORY WORD "HELD" TO "SERVING,"
AND CONCLUDED THAT A SENTENCE FOR ESCAPE OR ATTEMPT TO ESCAPE MUST
BEGIN AT THE EXPIRATION OF THE PARTICULAR SENTENCE WHICH THE PRISONER
IS SERVING AT THE TIME THE ESCAPE OR ATTEMPT OCCURS.  ACCORDINGLY THE
COURT REMANDED THE CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO
CORRECT THE FIVE-YEAR SENTENCE SO THAT IT WOULD BEGIN UPON EXPIRATION
OF OR LEGAL RELEASE FROM THE ONE-YEAR SENTENCE.  160 F.2D 310.  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTION IN THE
ADMINISTRATION OF THE FEDERAL ESCAPE ACT. 

ALTHOUGH PRISON BREACH OR OTHER ESCAPE BY PRISONERS FROM CUSTODY WAS
A CRIME UNDER THE COMMON LAW,  FN3  THERE WAS NO FEDERAL STATUTE
PROSCRIBING SUCH CONDUCT PRIOR TO THE ENACTMENT OF THE ORIGINAL FEDERAL
ESCAPE ACT IN 1930, 46 STAT. 327.  THAT ACT DEALT ONLY WITH ESCAPE OR
ATTEMPTED ESCAPE WHILE UNDER SENTENCE.  IT WAS ENACTED AS PART OF A
PROGRAM SPONSORED BY THE ATTORNEY GENERAL FOR THE REORGANIZATION AND
IMPROVED ADMINISTRATION OF THE FEDERAL PENAL SYSTEM.  H.R. REP. NO.
106, 71ST CONG., 2D SESS.  THE ACT TOOK ITS PRESENT FORM IN 1935, WHEN
IT WAS BROADENED AT THE ATTORNEY GENERAL'S REQUEST  FN4  TO COVER
ESCAPE WHILE IN CUSTODY ON A FEDERAL CHARGE PRIOR TO CONVICTION.  FN5 

THE LEGISLATION REFLECTS AN UNMISTAKABLE INTENTION TO PROVIDE
PUNISHMENT FOR ESCAPE OR ATTEMPTED ESCAPE TO BE SUPERIMPOSED UPON THE
PUNISHMENT METED OUT FOR PREVIOUS OFFENSES.  THIS APPEARS FROM THE FACE
OF THE STATUTE ITSELF.  IT FIRST PROVIDES THAT PERSONS ESCAPING OR
ATTEMPTING TO ESCAPE WHILE IN CUSTODY, WHETHER BEFORE OR AFTER
CONVICTION, SHALL BE GUILTY OF AN OFFENSE.  THEN FOLLOW PROVISIONS FOR
DETERMINING WHETHER THE OFFENSE SHALL BE A FELONY OR A MISDEMEANOR,
WITH CORRESPONDING PRESCRIPTIONS OF PENALTIES. 

AT THIS POINT THE STATUTE HAD NO NEED TO GO FURTHER IF THE INTENTION
HAD BEEN MERELY TO LEAVE TO THE COURT'S DISCRETION WHETHER THE
PENALTIES, WITHIN THE LIMITS PRESCRIBED, SHOULD RUN CONCURRENTLY OR
CONSECUTIVELY IN ACCORDANCE WITH THE GENERALLY PREVAILING PRACTICE.  ON
THAT ASSUMPTION THE STATUTE WAS COMPLETE, WITHOUT ADDITION OF THE LAST
TWO SENTENCES.  BUT IN THAT FORM THE ACT WOULD HAVE LEFT THE COURT WITH
DISCRETION TO MAKE THE SENTENCE RUN CONCURRENTLY OR CONSECUTIVELY WITH
THE OTHER SENTENCES PREVIOUSLY IN EFFECT OR PUT INTO EFFECT IN THE CASE
OR CASES PENDING WHEN THE ESCAPE OCCURRED. 

PRECISELY TO AVOID THIS MORE WAS ADDED, IN THE EXPLICIT PROVISIONS
THAT "THE SENTENCE IMPOSED HEREUNDER SHALL BE IN ADDITION TO AND
INDEPENDENT OF ANY SENTENCE IMPOSED IN THE CASE IN CONNECTION WITH
WHICH SUCH PERSON IS HELD IN CUSTODY AT THE TIME OF SUCH ESCAPE OR
ATTEMPT TO ESCAPE.  IF SUCH PERSON BE UNDER SENTENCE AT THE TIME OF
SUCH OFFENSE, THE SENTENCE IMPOSED HEREUNDER SHALL BEGIN UPON THE
EXPIRATION OF, OR UPON LEGAL RELEASE FROM, ANY SENTENCE UNDER WHICH
SUCH PERSON IS HELD AT THE TIME OF SUCH ESCAPE OR ATTEMPT TO ESCAPE." 

THESE SENTENCES FORECLOSED, AND WERE INTENDED TO FORECLOSE, WHAT THE
EARLIER PORTIONS OF THE ACT HAD LEFT OPEN, NAMELY, THE COURT'S POWER TO
MAKE THE ESCAPE SENTENCE RUN CONCURRENTLY WITH THE OTHER SENTENCES. 
FN6  WHETHER THE ESCAPE WAS BEFORE OR AFTER CONVICTION, ADDITIONAL
PUNISHMENT WAS MADE MANDATORY, IN THE ONE CASE BY THE EXPLICIT
REQUIREMENT, "IN ADDITION TO AND INDEPENDENT OF" ANY SENTENCE IMPOSED;
IN THE OTHER BY THE COMMAND THAT THE ESCAPE SENTENCE "SHALL BEGIN UPON
THE EXPIRATION OF, OR UPON LEGAL RELEASE FROM, ANY SENTENCE," ETC.  THE
DIFFERING VERBAL FORMULATIONS WERE NECESSARY TO MEET THE DIFFERENT
"BEFORE" AND "AFTER" CONVICTION SITUATIONS.  BUT THE TWO PROVISIONS HAD
ONE AND THE SAME PURPOSE, TO REQUIRE ADDITIONAL PUNISHMENT FOR THE
ESCAPE OFFENSE.  THE IDEA OF ALLOWING THE ESCAPE SENTENCES TO RUN
CONCURRENTLY WITH THE OTHER SENTENCES WAS COMPLETELY INCONSISTENT WITH
THIS COMMON AND PRIMARY OBJECT, AS WELL AS WITH THE WORDING OF THE TWO
CONCLUDING CLAUSES.  IN MANY CASES SUCH CONCURRENT SENTENCES WOULD
NULLIFY THE STATUTORY PURPOSE ALTOGETHER; IN OTHERS, THEY WOULD DO SO
PARTIALLY.  FN7 

MOREOVER, IMPOSITION OF SUCH ADDITIONAL PUNISHMENT HAD BEEN THE PRIME
OBJECT, INDEED THE ONLY ONE, OF THE ORIGINAL ESCAPE ACT, WHICH WAS
APPLICABLE ONLY TO ESCAPES AFTER CONVICTION.  IT MADE SUCH ESCAPES OR
ATTEMPTS "OFFENSES," PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN FIVE
YEARS, "SUCH SENTENCE TO BEGIN UPON THE EXPIRATION OF OR UPON LEGAL
RELEASE FROM THE SENTENCE FOR WHICH SAID PERSON WAS ORIGINALLY
CONFINED."  FN8  THIS PROVISION, THOUGH DIFFERING FROM THE WORDING OF
THE LAST SENTENCE OF THE PRESENT ACT, HAD THE SAME PRIME OBJECT. 
CONCURRENT SENTENCES WERE AS INCONSISTENT WITH ITS TERMS AS WITH THOSE
OF THE PRESENT ACT, FOR IN MANY CASES LIKE THIS ONE THEY WOULD HAVE
ADDED NO FURTHER PUNISHMENT IN FACT. 

CONGRESS, IT IS TRUE, DID NOT CAST THE ORIGINAL ACT IN TERMS
SPECIFICALLY RELATING TO A SITUATION COMPREHENDING CONSECUTIVE
SENTENCES EXISTING AT THE TIME OF THE ESCAPE OR ATTEMPT, AS MORE
CAREFUL DRAFTING OF THE ACT WOULD HAVE REQUIRED TO INSURE ACHIEVING THE
OBJECT OF ADDING INDEPENDENT PUNISHMENT IN ALL CASES.  ITS
CONCENTRATION UPON THAT MAIN ASPECT OF THE LEGISLATION APPARENTLY LED
IT TO REDUCED EMPHASIS UPON AND CARE IN THE DEFINITION OF THE
SITUATIONS TO WHICH THE ACT WOULD APPLY. 

NEVERTHELESS IN VIEW OF THE ACT'S BROAD PURPOSE, IT WOULD BE DIFFCULT
TO CONCLUDE THAT THE ORIGINAL PHRASING, "THE SENTENCE FOR WHICH SAID
PERSON WAS ORIGINALLY CONFINED," WAS INTENDED TO APPLY ONLY TO THE
SENTENCE, ONE OF SEVERAL CONSECUTIVE ONES, WHICH THE PRISONER HAPPENED
TO BE SERVING WHEN THE ESCAPE OR THE ATTEMPT OCCURRED, OR THAT THE ACT
WOULD BE EFFECTIVE ONLY WHERE THE PRISONER WAS SERVING TIME UNDER A
SINGLE SENTENCE, WHICH WAS PERHAPS THE MORE COMMON OF THE SITUATIONS
WHICH CONGRESS HAD IN MIND.  THE SAME BASIC REASONS WHICH REQUIRE
REJECTION OF EITHER OF THOSE VIEWS OF THE PRESENT ACT WOULD APPLY TO
THE ORIGINAL ONE. 

BUT, IN ANY EVENT, CONGRESS CHANGED THE WORDING OF THE "AFTER
EXPIRATION OR RELEASE" CLAUSE IN THE ORIGINAL STATUTE WHEN ENACTING THE
AMENDED ONE.  "THE SENTENCE FOR WHICH SAID PERSON WAS ORIGINALLY
CONFINED" BECAME "ANY SENTENCE UNDER WHICH SUCH PERSON IS HELD AT THE
TIME OF SUCH ESCAPE OR ATTEMPT TO ESCAPE."  THIS CHANGE IS NOT WITHOUT
SIGNIFICANCE.  FOR USE OF THE WORDS "ANY SENTENCE UNDER WHICH SUCH
PERSON IS HELD" MEANS SOMETHING MORE THAN THE NARROWEST POSSIBLE
CONSTRUCTION OF "THE SENTENCE FOR WHICH SAID PERSON WAS ORIGINALLY
CONFINED," UNLESS THE CHANGE IS TO BE TAKEN AS MEANINGLESS.  WE THINK
IT WAS INTENDED, AS WERE THE OTHER AMENDMENTS MADE AT THE SAME TIME, TO
BROADEN THE ACT'S COVERAGE OR TO ASSURE ITS BROAD COVERAGE, FN9  AND
THEREFORE TO INCLUDE SITUATIONS WHERE THE PRISONER WAS BEING "HELD"
UNDER MORE THAN ONE SENTENCE.  OTHERWISE THERE WOULD BE NO REASON FOR
OR MEANING IN THE CHANGE. 

WE THINK THEREFORE THAT THE ACT CONTEMPLATES "ADDITIONAL" AND
"INDEPENDENT" PUNISHMENT IN BOTH THE CONCLUDING CLAUSES IN A PRACTICAL
SENSE, NOT MERELY IN THE TECHNICAL SENSE OF CONCURRENT SENTENCES HAVING
NO EFFECT TO CONFINE THE PRISONER FOR ANY ADDITIONAL TIME.  IN A VERY
PRACTICAL SENSE, A PERSON IN CUSTODY UNDER SEVERAL CONSECUTIVE
SENTENCES IS BEING "HELD" UNDER THE COMBINED SENTENCES.  AND THE
LEGISLATIVE LANGUAGE IS A NATURAL, THOUGH NOT NICELY PRECISE, WAY OF
STATING THE PURPOSE THAT THE SENTENCE FOR ESCAPE SHALL BEGIN UPON THE
EXPIRATION OF THE AGGREGATE OF THE TERMS OF IMPRISONMENT IMPOSED BY
EARLIER SENTENCES.  GRANTED THAT THE PRESENT PROBLEM COULD HAVE BEEN
OBVIATED BY EVEN MORE ASTUTE DRAFTSMANSHIP, THE STATUTE ON ITS FACE AND
TAKEN IN ITS ENTIRETY SUFFICIENTLY EXPRESSES THE CONGRESSIONAL MANDATE
THAT THE SENTENCE FOR ESCAPE IS TO BE SUPERIMPOSED UPON ALL PRIOR
SENTENCES. 

WE ARE MINDFUL OF THE MAXIM THAT PENAL STATUTES ARE TO BE STRICTLY
CONSTRUED.  AND WE WOULD NOT HESITATE, PRESENT ANY COMPELLING REASON,
TO APPLY IT AND ACCEPT THE RESTRICTED INTERPRETATION.  BUT NO SUCH
REASON IS TO BE FOUND HERE.  THE CANON IN FAVOR OF STRICT CONSTRUCTION
IS NOT AN INEXORABLE COMMAND TO OVERRIDE COMMON SENSE AND EVIDENT
STATUTORY PURPOSE.  IT DOES NOT REQUIRE MAGNIFIED EMPHASIS UPON A
SINGLE AMBIGUOUS WORD IN ORDER TO GIVE IT A MEANING CONTRADICTORY TO
THE FAIR IMPORT OF THE WHOLE REMAINING LANGUAGE.  AS WAS SAID IN UNITED
STATES V. GASKIN, 320 U.S. 527, 530, THE CANON "DOES NOT REQUIRE
DISTORTION OR NULLIFICATION OF THE EVIDENT MEANING AND PURPOSE OF THE
LEGISLATION."  NOR DOES IT DEMAND THAT A STATUTE BE GIVEN THE
"NARROWEST MEANING"; IT IS SATISFIED IF THE WORDS ARE GIVEN THEIR FAIR
MEANING IN ACCORD WITH THE MANIFEST INTENT OF THE LAWMAKERS.  UNITED
STATES V. RAYNOR, 302 U.S. 540, 552; UNITED STATES V. GILES, 300 U.S.
41, 48; GOOCH V. UNITED STATES, 297 U.S. 124, 128; UNITED STATES V.
CORBETT, 215 U.S. 233, 242. 

TO ACCEPT THE DECISION OF THE CIRCUIT COURT OF APPEALS WOULD LEAD TO
BIZARRE RESULTS.  THE CONGRESSIONAL PURPOSE WOULD BE FRUSTRATED, IN
PART AT LEAST, IN EVERY SITUATION WHERE AN ESCAPE IS EFFECTED OR
ATTEMPTED DURING THE PRISONER'S SERVICE OF ANY BUT THE LAST OF TWO OR
MORE CONSECUTIVE SENTENCES, POSSIBLY EVEN IN THAT INSTANCE.  BARRING
INTERVENTION OF EXECUTIVE CLEMENCY, IT WOULD BE COMPLETELY NULLIFIED IN
ALL CASES WHERE THE CONSECUTIVE SENTENCES WHICH THE PRISONER HAS NOT
YET BEGUN TO SERVE AGGREGATE FIVE YEARS OR MORE.  IN THE LATTER
SITUATION THE PRISONER COULD ATTEMPT ANY NUMBER OF JAIL BREAKS WITH
IMPUNITY.  A COURT WOULD BE POWERLESS TO IMPOSE ADDED CONFINEMENT FOR
VIOLATION OF THE ESCAPE ACT. 

THE HOLDING OF THE CIRCUIT COURT OF APPEALS THUS PLACES IT BEYOND THE
POWER OF THE JUDGE TO SUPERIMPOSE ADDITIONAL IMPRISONMENT FOR ESCAPE IN
THOSE INSTANCES WHERE SUCH PUNISHMENT IS MOST GLARINGLY NEEDED AS A
DETERRENT.  FN10  THERE IS ALSO THIS FURTHER STRIKING INCONGRUITY.  THE
JUDGE IS COMPLETELY INTERDICTED FROM IMPOSING AN ADDITIONAL SENTENCE
FOR ESCAPE OR ATTEMPT TO ESCAPE, THE ONE TYPE OF OFFENSE WHICH CONGRESS
UNMISTAKABLY INTENDED TO BE SUBJECT TO SEPARATE AND ADDED PUNISHMENT,
ALTHOUGH HE MAY DIRECT THAT A SENTENCE FOR ANY OTHER FEDERAL OFFENSE
SHALL BEGIN AT THE EXPIRATION OF CONSECUTIVE SENTENCES THERETOFORE
IMPOSED.    NO RULE OF CONSTRUCTION NECESSITATES OUR ACCEPTANCE OF AN
INTERPRETATION RESULTING IN PATENTLY ABSURD CONSEQUENCES.  AND THE
ABSENCE OF ANY SIGNIFICANT LEGISLATIVE HISTORY, OTHER THAN HAS BEEN
RELATED, MAY BE INDICATIVE THAT CONGRESS CONSIDERED THAT THERE WAS NO
SUCH PROBLEM AS IS NOW SOUGHT TO BE INJECTED IN THE STATUTORY WORDING
OR THAT BY THE 1935 AMENDMENT IT HAD CURED THE PREVIOUSLY EXISTING
ONE.  THE LIBERTY OF THE INDIVIDUAL MUST BE SCRUPULOUSLY PROTECTED. 
BUT THE SAFEGUARDS OF CHERISHED RIGHTS ARE NOT TO BE FOUND IN THE
DOCTRINAIRE APPLICATION OF THE TENET OF STRICT CONSTRUCTION.  NEITHER
AN ORDERED SYSTEM OF LIBERTY NOR THE PROPER ADMINISTRATION OF JUSTICE
WOULD BE SERVED BY BLIND NULLIFICATION OF THE CONGRESSIONAL INTENT
CLEARLY REFLECTED IN THE FEDERAL ESCAPE ACT. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED. 

FN1  THE ACT IS AS FOLLOWS:  "ANY PERSON COMMITTED TO THE CUSTODY OF
THE ATTORNEY GENERAL OR HIS AUTHORIZED REPRESENTATIVE, OR WHO IS
CONFINED IN ANY PENAL OR CORRECTIONAL INSTITUTION PURSUANT TO THE
DIRECTION OF THE ATTORNEY GENERAL, OR WHO IS IN CUSTODY BY VIRTUE OF
ANY PROCESS ISSUED UNDER THE LAWS OF THE UNITED STATES BY ANY COURT,
JUDGE, OR COMMISSIONER, OR WHO IS IN CUSTODY OF AN OFFICER OF THE
UNITED STATES PURSUANT TO LAWFUL ARREST, WHO ESCAPES OR ATTEMPTS TO
ESCAPE FROM SUCH CUSTODY OR INSTITUTION, SHALL BE GUILTY OF AN
OFFENSE.  IF THE CUSTODY OR CONFINEMENT IS BY VIRTUE OF AN ARREST ON A
CHARGE OF FELONY, OR CONVICTION OF ANY OFFENSE WHATSOEVER, THE OFFENSE
OF ESCAPING OR ATTEMPTING TO ESCAPE THEREFROM SHALL CONSTITUTE A FELONY
AND ANY PERSON CONVICTED THEREOF SHALL BE PUNISHED BY IMPRISONMENT FOR
NOT MORE THAN FIVE YEARS OR BY A FINE OF NOT MORE THAN $5,000, OR BOTH;
AND IF THE CUSTODY OR CONFINEMENT IS BY VIRTUE OF AN ARREST OR CHARGE
OF OR FOR A MISDEMEANOR, AND PRIOR TO CONVICTION, THE OFFENSE OF
ESCAPING OR ATTEMPTING TO ESCAPE THEREFROM SHALL CONSTITUTE A
MISDEMEANOR AND ANY PERSON CONVICTED THEREOF SHALL BE PUNISHED BY
IMPRISONMENT FOR NOT MORE THAN ONE YEAR OR BY A FINE OF NOT MORE THAN
$1,000, OR BOTH.  THE SENTENCE IMPOSED HEREUNDER SHALL BE IN ADDITION
TO AND INDEPENDENT OF ANY SENTENCE IMPOSED IN THE CASE IN CONNECTION
WITH WHICH SUCH PERSON IS HELD IN CUSTODY AT THE TIME OF SUCH ESCAPE OR
ATTEMPT TO ESCAPE.  IF SUCH PERSON BE UNDER SENTENCE AT THE TIME OF
SUCH OFFENSE, THE SENTENCE IMPOSED HEREUNDER SHALL BEGIN UPON THE
EXPIRATION OF, OR UPON LEGAL RELEASE FROM, ANY SENTENCE UNDER WHICH
SUCH PERSON IS HELD AT THE TIME OF SUCH ESCAPE OR ATTEMPT TO ESCAPE." 
49 STAT. 513, 18 U.S.C. SEC. 753H. 

FN2  THE SENTENCE BEGAN TO RUN AS OF THE TIME RESPONDENT WAS
COMMITTED TO JAIL TO AWAIT TRANSPORTATION TO THE LEAVENWORTH
PENITENTIARY.  47 STAT. 381, 18 U.S.C. SEC. 709A. 

FN3  MILLER, CRIMINAL LAW 463-465. 

FN4  H.R. REP. NO. 803, 74TH CONG., 1ST SESS.; S. REP. NO. 1021, 74TH
CONG., 1ST SESS. 

FN5  THE GOVERNMENT'S BRIEF APTLY SUMMARIZES SOME OF THE MORE SERIOUS
CONSIDERATIONS LEADING TO ADOPTION OF THE ORIGINAL AND AMENDED ACTS, AS
FOLLOWS:  "ESCAPES AND ATTEMPTED ESCAPES FROM PENAL INSTITUTIONS OR
FROM OFFICIAL CUSTODY PRESENT A MOST SERIOUS PROBLEM OF PENAL
DISCIPLINE.  THEY ARE OFTEN VIOLENT, MENACING, AS IN THE INSTANT CASE,
THE LIVES OF GUARDS AND CUSTODIANS, AND CARRY IN THEIR WAKE OTHER
CRIMES ATTENDANT UPON PROCURING MONEY, WEAPONS AND TRANSPORTATION AND
UPON RESISTING RECAPTURE." 

FN6  BUT SEE RUTLEDGE V. UNITED STATES, 146 F.2D 199. 

FN7  DEPENDING ON WHETHER THE TERM OF THE SENTENCE FOR ESCAPE, AS OF
THE TIME OF ITS IMPOSITION, IS SHORTER OR LONGER THAN THE PERIODS OF
THE OTHER SENTENCES REMAINING UNSERVED. 

FN8  THE ACT WAS AS FOLLOWS:  "ANY PERSON PROPERLY COMMITTED TO THE
CUSTODY OF THE ATTORNEY GENERAL OR HIS AUTHORIZED REPRESENTATIVE OR WHO
IS CONFINED IN ANY PENAL OR CORRECTIONAL INSTITUTION, PURSUANT TO THE
DIRECTION OF THE ATTORNEY GENERAL, WHO ESCAPES OR ATTEMPTS TO ESCAPE
THEREFROM SHALL BE GUILTY OF AN OFFENSE AND UPON APPREHENSION AND
CONVICTION OF ANY SUCH OFFENSE IN ANY UNITED STATES COURT SHALL BE
PUNISHED BY IMPRISONMENT FOR NOT MORE THAN FIVE YEARS, SUCH SENTENCE TO
BEGIN UPON THE EXPIRATION OF OR UPON LEGAL RELEASE FROM THE SENTENCE
FOR WHICH SAID PERSON WAS ORIGINALLY CONFINED."  46 STAT. 327. 

FN9 EITHER BY ELIMINATING THE ORIGINAL WORDING'S AMBIGUITY BY
REJECTING THE NARROW CONSTRUCTION OR, IF THAT CONSTRUCTION WERE THOUGHT
VALID, BY CHANGING THE ACT'S TERMS TO INSURE A DIFFERENT RESULT. 

FN10  THE $5,000 FINE THAT COULD BE IMPOSED FOR EACH ESCAPE ATTEMPT,
SEE NOTE 1 SUPRA, WOULD BE NO DETERRENT TO AN IMPECUNIOUS OFFENDER, AND
LITTLE MORE THAN AN EMPTY THREAT TO THE LONG-INCARCERATED ONE WHOSE ALL
CONSUMING INTEREST IS FREEDOM. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :











BOB-LO EXCURSION CO. V. MICHIGAN, 333 U.S. 28 


NO. 374.  ARGUED DECEMBER 16-17, 1947.  - DECIDED FEBRUARY 2, 1948.  -
317 MICH. 686, 27 N.W.2D 139, AFFIRMED. 


1.  APPELLANT, A MICHIGAN CORPORATION ENGAGED CHIEFLY IN THE ROUND
TRIP TRANSPORTATION OF PASSENGERS FROM DETROIT TO BOIS BLANC ISLAND,
CANADA, WAS CONVICTED IN A CRIMINAL PROSECUTION UNDER THE MICHIGAN
CIVIL RIGHTS ACT FOR REFUSING PASSAGE TO A NEGRO SOLELY BECAUSE OF
COLOR.  HELD:  IN VIEW OF THE SPECIAL LOCAL INTEREST ATTACHING TO
APPELLANT'S BUSINESS IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE, SUCH
APPLICATION OF THE STATE ACT TO THE APPELLANT, ALTHOUGH ENGAGED IN
FOREIGN COMMERCE, DID NOT CONTRAVENE THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  PP. 29-40. 

2.  A DECISION OF THE HIGHEST COURT OF THE STATE THAT, AS A MATTER OF
LOCAL LAW, THE STATE STATUTE WAS APPLICABLE TO APPELLANT'S BUSINESS IS
BINDING HERE UPON REVIEW.  P. 33. 

3.  APPELLANT'S TRANSPORTATION OF PASSENGERS BETWEEN DETROIT,
MICHIGAN, AND BOIS BLANC ISLAND, CANADA, IS FOREIGN COMMERCE WITHIN THE
SCOPE OF ART. I, SEC. 8 OF THE FEDERAL CONSTITUTION.  P. 34. 

4.  HALL V. DECUIR, 95 U.S. 485, AND MORGAN V. VIRGINIA, 328 U.S.
373, DISTINGUISHED.  PP. 39-40. 

BOB-LO EXCURSION CO. V. MICHIGAN. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

APPELLANT'S CONVICTION IN A CRIMINAL PROSECUTION FOR VIOLATION OF THE
MICHIGAN CIVIL RIGHTS ACT WAS AFFIRMED BY THE SUPREME COURT OF THE
STATE.  317 MICH. 686, 27 N.W.2D 139.  UPON APPEAL TO THIS COURT,
AFFIRMED, P. 40. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

BOIS BLANC ISLAND IS PART OF THE PROVINCE OF ONTARIO, CANADA.  IT
LIES JUST ABOVE THE MOUTH OF THE DETROIT RIVER, SOME FIFTEEN MILES FROM
MICHIGAN'S METROPOLIS UPSTREAM.  THE ISLAND, KNOWN IN DETROIT BY THE
CORRUPTION "BOB-LO," HAS BEEN CHARACTERIZED AS THAT CITY'S CONEY
ISLAND. 

APPELLANT OWNS ALMOST ALL OF BOIS BLANC IN FEE.  FN1  FOR MANY YEARS
IT HAS OPERATED THE ISLAND, DURING THE SUMMER SEASONS, AS A PLACE OF
DIVERSE AMUSEMENTS FOR DETROIT'S VARIED POPULATION.  APPELLANT ALSO
OWNS AND OPERATES TWO STEAMSHIPS FOR TRANSPORTING ITS PATRONS OF THE
ISLAND'S ATTRACTIONS FROM DETROIT TO BOIS BLANC AND RETURN.  THE
VESSELS ENGAGE IN NO OTHER BUSINESS ON THESE TRIPS.  FN2  NO FREIGHT,
MAIL OR EXPRESS IS CARRIED; THE ONLY PASSENGERS ARE THE PATRONS BENT ON
PLEASURE, WHO BOARD SHIP AT DETROIT; THEY GO ON ROUND-TRIP ONE-DAY
LIMIT  FN3  TICKETS WHICH INCLUDE THE PRIVILEGE OF LANDING AT BOIS
BLANC AND GOING BACK BY A LATER BOAT.  FN4  NO INTERMEDIATE STOPS ARE
MADE ON THESE EXCURSIONS. 

IN CONDUCTING THIS BUSINESS OF AMUSEMENT AND TRANSPORTATION,
APPELLANT LONG HAS FOLLOWED THE POLICY, BY ADVERTISEMENT AND OTHERWISE,
TO INVITE AND ENCOURAGE ALL COMERS, EXCEPT TWO CLASSES.  ONE IS THE
DISORDERLY; THE OTHER, COLORED PEOPLE.  FN5  FROM THE LATTER EXCLUSION
THIS CASE ARISES. 

IN JUNE OF 1945 SARAH ELIZABETH RAY, THE COMPLAINING WITNESS, WAS
EMPLOYED BY THE DETROIT ORDNANCE DISTRICT.  SHE AND SOME FORTY OTHER
GIRLS WERE ALSO MEMBERS OF A CLASS CONDUCTED AT THE COMMERCE HIGH
SCHOOL UNDER THE AUSPICES OF THE ORDNANCE DISTRICT.  THE CLASS PLANNED
AN EXCURSION TO BOIS BLANC FOR JUNE 21 UNDER THE DISTRICT'S
SPONSORSHIP. 

ON THAT MORNING THIRTEEN GIRLS WITH THEIR TEACHER APPEARED AT
APPELLANT'S DOCK IN DETROIT TO GO ON THE OUTING.  ALL WERE WHITE EXCEPT
MISS RAY.  EACH GIRL PAID EIGHTY-FIVE CENTS TO ONE OF THE GROUP, WHO
PURCHASED ROUND-TRIP TICKETS AND DISTRIBUTED THEM.  THE PARTY THEN
PASSED THROUGH THE GATE, EACH MEMBER GIVING IN HER TICKET WITHOUT
QUESTION FROM THE TICKET TAKER.  THEY THEN CHECKED THEIR COATS, WENT TO
THE UPPER DECKS AND TOOK CHAIRS. 

SHORTLY AFTERWARD DEVEREAUX, APPELLANT'S ASSISTANT GENERAL MANAGER,
AND A STEWARD NAMED FOX APPEARED AND STATED THAT MISS RAY COULD NOT GO
ALONG BECAUSE SHE WAS COLORED.  AT FIRST SHE REMONSTRATED AGAINST THE
DISCRIMINATION AND REFUSED TO LEAVE.  BUT WHEN IT APPEARED SHE WOULD BE
EJECTED FORCIBLY, SHE SAID SHE WOULD GO.  DEVEREAUX AND FOX THEN
ESCORTED HER ASHORE, SAYING THE COMPANY WAS A PRIVATE CONCERN AND COULD
EXCLUDE HER IF IT WISHED.  THEY TOOK HER TO THE TICKET OFFICE AND
OFFERED TO RETURN HER FARE.  SHE REFUSED TO ACCEPT IT, TOOK THEIR
NAMES, AND LEFT THE COMPANY'S PREMISES.  THERE IS NO SUGGESTION THAT
SHE OR ANY MEMBER OF HER PARTY WAS GUILTY OF UNBECOMING CONDUCT.  NOR
IS THERE ANY DISPUTE CONCERNING THE FACTS. 

THIS CRIMINAL PROSECUTION FOLLOWED IN THE RECORDER'S COURT FOR
DETROIT, FOR VIOLATION OF THE MICHIGAN CIVIL RIGHTS ACT  FN6  IN THE
DISCRIMINATION PRACTICED AGAINST MISS RAY.  JURY TRIAL BEING FORMALLY
WAIVED, THE COURT AFTER HEARING EVIDENCE AND ARGUMENT FOUND APPELLANT
GUILTY AS CHARGED AND SENTENCED IT TO PAY A FINE OF $25.  FN7  ON
APPEAL THE SUPREME COURT OF MICHIGAN AFFIRMED THE JUDGMENT, HOLDING THE
STATUTE APPLICABLE TO THE CIRCUMSTANCES PRESENTED BY THE CASE AND VALID
IN THAT APPLICATION, AS AGAINST THE CONSTITUTIONAL AND OTHER OBJECTIONS
PUT FORWARD.  317 MICH. 686.  IN DUE COURSE PROBABLE JURISDICTION WAS
NOTED HERE.  JUDICIAL CODE SEC. 237(A). 

THE MICHIGAN CIVIL RIGHTS ACT, SEC. 146, ENACTS: 

"ALL PERSONS WITHIN THE JURISDICTION OF THIS STATE SHALL BE ENTITLED
TO FULL AND EQUAL ACCOMMODATIONS, ADVANTAGES, FACILITIES AND PRIVILEGES
OF INNS, HOTELS, RESTAURANTS, EATING HOUSES, BARBER SHOPS, BILLIARD
PARLORS, STORES, PUBLIC CONVEYANCES ON LAND AND WATER, THEATRES, MOTION
PICTURE HOUSES, PUBLIC EDUCATIONAL INSTITUTIONS, IN ELEVATORS, ON
ESCALATORS, IN ALL METHODS OF AIR TRANSPORTATION AND ALL OTHER PLACES
OF PUBLIC ACCOMMODATION, AMUSEMENT, AND RECREATION, WHERE REFRESHMENTS
ARE OR MAY HEREAFTER BE SERVED, SUBJECT ONLY TO THE CONDITIONS AND
LIMITATIONS ESTABLISHED BY LAW AND APPLICABLE ALIKE TO ALL CITIZENS AND
TO ALL CITIZENS ALIKE, WITH UNIFORM PRICES."  FN8 

BY SEC. 147, ANY OWNER, LESSEE, PROPRIETOR, AGENT OR EMPLOYEE OF ANY
SUCH PLACE WHO DIRECTLY OR INDIRECTLY WITHHOLDS ANY ACCOMMODATION
SECURED BY SEC. 146, ON ACCOUNT OF RACE, CREED OR COLOR, BECOMES GUILTY
OF A MISDEMEANOR, PUNISHABLE AS THE SECTION STATES, AND LIABLE TO A
CIVIL ACTION FOR TREBLE DAMAGES.  FN9 

THE MICHIGAN STATUTE IS ONE OF THE FAMILIAR TYPE ENACTED BY MANY
STATES BEFORE AND AFTER THIS COURT'S INVALIDATION OF CONGRESS' SIMILAR
LEGISLATION IN THE CIVIL RIGHTS CASES, 109 U.S. 3.  FN10 THE MICHIGAN
SUPREME COURT HELD THE STATUTE APPLICABLE TO APPELLANT'S BUSINESS OVER
ITS OBJECTION THAT AS A MATTER OF LOCAL LAW IT IS NOT A "PUBLIC
CONVEYANCE" WITHIN THE MEANING OF SEC. 146.  FN11  WE ACCEPT THIS
CONCLUSION OF THE STATE COURT AS A MATTER OF COURSE.  THAT COURT ALSO
IMPLIEDLY REJECTED APPELLANT'S CONSTITUTIONAL OBJECTIONS BASED UPON
ALLEGED DENIAL OF DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAWS
UNDER THE FOURTEENTH AMENDMENT, ISSUES NOW ELIMINATED FROM THE CASE. 
FN12 

WE HAVE THEREFORE ONLY TO CONSIDER THE SINGLE AND NARROW QUESTION
WHETHER THE STATE COURTS CORRECTLY HELD THAT THE COMMERCE CLAUSE, ART.
I, SEC. 8, OF THE FEDERAL CONSTITUTION, DOES NOT FORBID APPLYING THE
MICHIGAN CIVIL RIGHTS ACT TO SUSTAIN APPELLANT'S CONVICTION.  WE AGREE
WITH THEIR DETERMINATION. 

THERE CAN BE NO DOUBT THAT APPELLANT'S TRANSPORTATION OF ITS PATRONS
IS FOREIGN COMMERCE WITHIN THE SCOPE OF ART. I, SEC. 8.  FN13 LORD V.
STEAMSHIP CO., 102 U.S. 541; CF. EDWARDS V. CALIFORNIA, 314 U.S. 160. 
APPELLANT'S VESSELS SAIL TO AND FROM A PORT OR PLACE IN FOREIGN
TERRITORY WHOLLY UNDER ANOTHER NATION'S SOVEREIGNTY.  THEY CROSS THE
INTERNATIONAL BOUNDARY, WHICH IS THE THREAD OF THE DETROIT RIVER,
SEVERAL TIMES IN THE COURSE OF EACH SHORT TRIP.  APPELLANT NECESSARILY
COMPLIES WITH FEDERAL REGULATIONS APPLICABLE TO FOREIGN COMMERCE,
INCLUDING THOSE GOVERNING CUSTOMS, IMMIGRATION AND NAVIGATION MATTERS. 
IT LIKEWISE SATISFIES SIMILAR REGULATIONS OF THE CANADIAN AUTHORITIES. 
FN14 

OF COURSE WE MUST BE WATCHFUL OF STATE INTRUSION INTO INTERCOURSE
BETWEEN THIS COUNTRY AND ONE OF ITS NEIGHBORS.  BUT IF ANY SEGMENT OF
FOREIGN COMMERCE CAN BE SAID TO HAVE A SPECIAL LOCAL INTEREST, APART
FROM THE NECESSITY OF SAFEGUARDING THE FEDERAL INTEREST IN SUCH MATTERS
AS IMMIGRATION, CUSTOMS AND NAVIGATION, THE TRANSPORTATION OF
APPELLANT'S PATRONS FALLS IN THAT CHARACTERIZATION.  IT WOULD BE HARD
TO FIND A SUBSTANTIAL BUSINESS TOUCHING FOREIGN SOIL OF MORE HIGHLY
LOCAL CONCERN.  EXCEPT FOR THE SMALL FENCED-OFF PORTION RESERVED FOR
THE LIGHTHOUSE AND THREE COTTAGE SITES,  FN15  THE ISLAND IS
ECONOMICALLY AND SOCIALLY, THOUGH NOT POLITICALLY, AN AMUSEMENT ADJUNCT
OF THE CITY OF DETROIT.  NOT ONLY CUSTOMS AND IMMIGRATIONS REGULATIONS
OF BOTH COUNTRIES, BUT PHYSICAL BARRIERS PREVENT INTERCOURSE, BOTH
COMMERCIAL AND SOCIAL, BETWEEN CANADIANS AND APPELLANT'S PATRONS,
EXCEPT AS THE FORMER MAY COME FIRST BY OTHER MEANS TO DETROIT, THEN GO
TO THE ISLAND FROM AMERICAN SOIL ON APPELLANT'S VESSELS, AND RETURN
FROM THE HOLIDAY BY THE SAME ROUNDABOUT ROUTE. 

THE RECORD INDICATES THERE ARE NO ESTABLISHED MEANS OF ACCESS FROM
THE CANADIAN SHORE TO THE ISLAND.  THERE IS NO EVIDENCE OF EVEN
SURREPTITIOUS ENTRY FROM THE CANADIAN MAINLAND.  APPELLANT'S VESSELS
NOT ONLY ARE THE SOLE MEANS OF TRANSPORTATION TO AND FROM THE ISLAND,
BUT CARRY ONLY ITS OWN PATRONS OF BOIS BLANC'S RECREATIONAL
FACILITIES.  THESE TRAVEL EXCLUSIVELY ON ROUND-TRIP TICKETS FOR PASSAGE
BEGINNING AND ENDING ON AMERICAN SOIL.  THEY ARE PRINCIPALLY RESIDENTS
OF DETROIT AND VICINITY.  ALL GO ABOARD THERE AND RETURN THE SAME DAY. 
NONE GO FROM THE ISLAND TO THE CANADIAN BANK OF THE RIVER.  THE ONLY
BUSINESS CONDUCTED AT THE ISLAND IS THE OPERATION OF APPELLANT'S
RECREATIONAL AND ACCESSORY FACILITIES, WHICH APPARENTLY DO NOT INCLUDE
PROVISION FOR OVERNIGHT GUESTS.  NO OTHER PERSONS THAN APPELLANT'S
PATRONS COME TO THE ISLAND, OR HAVE A RIGHT TO COME, FROM CANADA'S
MAINLAND OR ELSEWHERE, OR GO FROM THE ISLAND TO DETROIT. 

THE SUM OF THESE FACTS MAKES BOIS BLANC AN ISLAND IN MORE THAN THE
GEOGRAPHIC SENSE.  THEY INSULATE IT AND APPELLANT'S BUSINESS DONE IN
CONNECTION WITH IT FROM ALL COMMERCIAL OR SOCIAL INTERCOURSE AND
TRAFFIC WITH THE PEOPLE OF ANOTHER COUNTRY USUALLY CHARACTERISTIC OF
FOREIGN COMMERCE, IN SHORT FROM THE NORMAL FLOW AND INCIDENTS OF SUCH
COMMERCE.  SINCE THE ENTERPRISE IS CONDUCTED IN THIS HIGHLY CLOSED AND
LOCALIZED MANNER WITH CANADA'S FULL CONSENT, NO DETRACTION WHATEVER
FROM THAT FRIENDLY NEIGHBOR'S SOVEREIGNTY IS IMPLIED BY SAYING THAT THE
BUSINESS ITSELF IS ECONOMICALLY AND SOCIALLY AN ISLAND OF LOCAL DETROIT
BUSINESS, ALTHOUGH SO LARGELY CARRIED ON IN CANADIAN WATERS.  AS NOW
CONDUCTED, APART FROM PRESENTLY APPLICABLE CANADIAN AND FEDERAL
REGULATIONS AND UNTIL CANADA OR CONGRESS OR BOTH COUNTRIES BY TREATY
SEE FIT TO ADD OTHERS, THE BUSINESS IS OF GREATER CONCERN TO DETROIT
AND THE STATE OF MICHIGAN THAN TO DOMINION OR ONTARIO INTERESTS OR TO
THOSE OF THE UNITED STATES IN REGULATING OUR FOREIGN COMMERCE. 

THE REGULATION IN THIS APPLICATION CONTAINS NOTHING OUT OF HARMONY,
MUCH LESS INCONSISTENT, WITH OUR FEDERAL POLICY IN THE REGULATION OF
COMMERCE BETWEEN THE TWO COUNTRIES; NOR, SO FAR AS WE ARE ADVISED, WITH
CANADIAN LAW AND POLICY.  FN16  APPELLANT URGES, HOWEVER, THAT CANADA
MIGHT ADOPT REGULATIONS IN CONFLICT WITH MICHIGAN'S CIVIL RIGHTS ACT,
THUS PLACING IT IN AN INESCAPABLE DILEMMA IF THAT ACT MAY BE APPLIED TO
ITS OPERATIONS.  CONCEDING THE POSSIBILITY, WE THINK THE STATE IS RIGHT
IN VIEWING IT AS SO REMOTE THAT IT IS HARDLY MORE THAN CONCEIVABLE. 
THE SAME THING, WE THINK, IS TRUE OF THE POSSIBILITY THAT CONGRESS
MIGHT TAKE CONFLICTING ACTION. 

IF THEREFORE IN ANY CASE A STATE MAY REGULATE FOREIGN COMMERCE, THE
FACTS HERE WOULD SEEM CLEARLY TO JUSTIFY MICHIGAN'S APPLICATION OF HER
CIVIL RIGHTS ACT.  IT IS FAR TOO LATE TO MAINTAIN THAT THE STATES
POSSESS NO REGULATORY POWERS OVER SUCH COMMERCE.  FROM THE FIRST
MEETING OF CONGRESS THEY HAVE REGULATED IMPORTANT PHASES OF BOTH
FOREIGN AND INTERSTATE COMMERCE, PARTICULARLY IN RELATION TO
TRANSPORTATION BY WATER, WITH CONGRESS' EXPRESS CONSENT N17.  AND
WITHOUT SUCH CONSENT FOR NEARLY A HUNDRED YEARS THEY HAVE EXERCISED
LIKE POWER UNDER THE LOCAL DIVERSITY BRANCH OF THE FORMULA ANNOUNCED IN
COOLEY V. BOARD OF WARDENS, 12 HOW.  299.  FN18  SEE UNION BROKERAGE
CO. V. JENSEN, 322 U.S. 202; KELLY V. WASHINGTON, 302 U.S. 1 AND
AUTHORITIES CITED IN BOTH CASES.  INDEED THE COOLEY CRITERION HAS BEEN
APPLIED SO FREQUENTLY IN CASES CONCERNING ONLY COMMERCE AMONG THE
SEVERAL STATES THAT IT IS OFTEN FORGOTTEN THAT THAT HISTORIC DECISION
DEALT INDISCRIMINATELY WITH SUCH COMMERCE AND FOREIGN COMMERCE.  FN19 

APPELLANT HARDLY SUGGESTS THAT THE POWER OF CONGRESS OVER FOREIGN
COMMERCE EXCLUDES ALL REGULATION BY THE STATES.  BUT IT VERGES ON THAT
VIEW IN REGARDING HALL V. DECUIR, 95 U.S. 485, SUPPLEMENTED BY MORGAN
V. VIRGINIA, 328 U.S. 373, AND PRYCE V. SWEDISH-AMERICAN LINES, 30
F.SUPP.  371, AS FLATLY CONTROLLING THIS CASE.  WE NEED ONLY SAY THAT
NO ONE OF THOSE DECISIONS IS COMPARABLE IN ITS FACTS, WHETHER IN THE
DEGREE OF LOCALIZATION OF THE COMMERCE INVOLVED; IN THE ATTENUATING
EFFECTS, IF ANY, UPON THE COMMERCE WITH FOREIGN NATIONS AND AMONG THE
SEVERAL STATES LIKELY TO BE PRODUCED BY APPLYING THE STATE REGULATION;
OR IN ANY ACTUAL PROBABILITY OF CONFLICTING REGULATIONS BY DIFFERENT
SOVEREIGNTIES.  NONE INVOLVED SO COMPLETELY AND LOCALLY INSULATED A
SEGMENT OF FOREIGN OR INTERSTATE COMMERCE N20.  IN NONE WAS THE
BUSINESS AFFECTED MERELY AN ADJUNCT OF A SINGLE LOCALITY OR COMMUNITY
AS IS THE BUSINESS HERE SO LARGELY.  AND IN NONE WAS A COMPLETE
EXCLUSION FROM PASSAGE MADE.  THE PRYCE CASE, OF COURSE, IS NOT
AUTHORITY IN THIS COURT, AND WE EXPRESS NO OPINION ON THE PROBLEM IT
PRESENTED.  THE REGULATION OF TRAFFIC ALONG THE MISSISSIPPI RIVER, SUCH
AS THE HALL CASE COMPREHENDED, AND OF INTERSTATE MOTOR CARRIAGE OF
PASSENGERS BY COMMON CARRIERS LIKE THAT IN THE MORGAN CASE, ARE NOT
FACTUALLY COMPARABLE TO THIS REGULATION OF APPELLANT'S HIGHLY LOCALIZED
BUSINESS, AND THOSE DECISIONS ARE NOT RELEVANT HERE. 

IT IS DIFFICULT TO IMAGINE WHAT NATIONAL INTEREST OR POLICY, WHETHER
OF SECURING UNIFORMITY IN REGULATING COMMERCE AFFECTING RELATIONS WITH
FOREIGN NATIONS OR OTHERWISE, COULD REASONABLY BE FOUND TO BE ADVERSELY
AFFECTED BY APPLYING MICHIGAN'S STATUTE TO THESE FACTS OR TO OUTWEIGH
HER INTEREST IN DOING SO.  CERTAINLY THERE IS NO NATIONAL INTEREST
WHICH OVERRIDES THE INTEREST OF MICHIGAN TO FORBID THE TYPE OF
DISCRIMINATION PRACTICED HERE.  AND, IN VIEW OF THESE FACTS, THE RULING
WOULD BE STRANGE INDEED, TO COME FROM THIS COURT, THAT MICHIGAN COULD
NOT APPLY HER LONG-SETTLED POLICY AGAINST RACIAL AND CREEDAL
DISCRIMINATION TO THIS SEGMENT OF FOREIGN COMMERCE, SO PECULIARLY AND
ALMOST EXCLUSIVELY AFFECTING HER PEOPLE AND INSTITUTIONS.    THE
SUPREME COURT OF MICHIGAN CONCLUDED "THAT HOLDING THE PROVISIONS OF THE
MICHIGAN STATUTE EFFECTIVE AND APPLICABLE IN THE INSTANT CASE RESULTS
ONLY IN THIS, DEFENDANT WILL BE REQUIRED IN OPERATING ITS SHIPS AS
'PUBLIC CONVEYANCES' TO ACCEPT AS PASSENGERS PERSONS OF THE NEGRO RACE
INDISCRIMINATELY WITH OTHERS.  OUR REVIEW OF THIS RECORD DOES NOT
DISCLOSE THAT SUCH A REQUIREMENT WILL IMPOSE ANY UNDUE BURDEN ON
DEFENDANT IN ITS BUSINESS IN FOREIGN COMMERCE."  317 MICH. 686, 694. 
THOSE CONCLUSIONS WERE RIGHT. 

THE JUDGMENT IS AFFIRMED. 

FN1  A SMALL FENCED-OFF TRACT AT ONE END IS RESERVED FOR LIGHTHOUSE
PURPOSES, AND THREE SMALL COTTAGE LOTS.  APPELLANT IS A MICHIGAN
CORPORATION, AUTHORIZED BY ITS CHARTER TO "LEASE, OWN AND OPERATE
AMUSEMENT PARKS IN CANADA, AND TO CHARTER, LEASE, OWN AND OPERATE
EXCURSION STEAMERS AND FERRY BOATS IN INTERSTATE AND FOREIGN COMMERCE,
TOGETHER WITH DOCK AND TERMINAL FACILITIES PERTAINING THERETO," AS WELL
AS TO ACQUIRE, OWN, USE AND DISPOSE OF REAL AND PERSONAL PROPERTY "AS
MAY BE NECESSARY OR CONVENIENT IN CONNECTION WITH THE AFORESAID
BUSINESS OF THE COMPANY." 

FN2  THE RECORD SHOWS THAT AT TIMES DURING THE SEASON APPELLANT USES
THESE SHIPS TO PROVIDE EXCURSION TRIPS FOR RESIDENTS OF THE PROVINCE OF
ONTARIO, BUT THESE EXCURSIONS ARE KEPT ENTIRELY SEPARATE FROM THOSE
BETWEEN DETROIT AND BOIS BLANC AND WE ARE CONCERNED WITH NO QUESTION
RELATING TO THEM. 

FN3  APPARENTLY NO FACILITIES ARE PROVIDED AT THE ISLAND FOR
OVERNIGHT GUESTS. 

FN4  THE COMPANY FIXES ITS OWN RATES.  THE USUAL ROUND-TRIP CHARGE IS
85[, EXCEPT FOR SATURDAY NIGHTS AND SUNDAYS WHEN A HIGHER RATE
APPLIES.  SPECIAL EXCURSIONS AT TIMES ARE ARRANGED FOR CHURCHES, SUNDAY
DAY SCHOOLS, CLUBS, LODGES, ETC., FOR WHICH THE REGULAR CHARGE IS PAID
BY THE PASSENGER BUT THE COMPANY ALLOWS THE ORGANIZATION A DISCOUNT
WHICH PERMITS IT TO MAKE A PROFIT.  THE DISCOUNTS ARE NOT UNIFORM. 

FN5  APPELLANT'S ASSISTANT GENERAL MANAGER, DEVEREAUX, TESTIFIED:
"THE DEFENDANT ADOPTED THE POLICY OF EXCLUDING SO-CALLED 'ZOOT
SUITERS,' THE ROWDYISH, THE ROUGH AND THE BOISTEROUS AND IT ALSO
ADOPTED THE POLICY OF EXCLUDING COLORED." 

APPELLANT PRINTED ON THE BACK OF EACH TICKET:  "RIGHT RESERVED TO
REJECT THIS TICKET BY REFUNDING THE PURCHASE PRICE."  THE RECORD
CONTAINS NO EVIDENCE OF ANY EXCLUSION OR POLICY OF EXCLUSION OF OTHERS
THAN DISORDERLY OR COLORED PERSONS. 

FN6  MICH. PENAL CODE SECS. 146-148, AS AMENDED BY ACT NO. 117, MICH.
PUB. ACTS 1937; MICH. COMP. LAWS (SUPP. 1940) SECS. 17115-146 TO 17115
148; MICH. STAT. ANN. (1946 CUM. SUPP.) SECS. 28.343-28.346.  THESE
ACT NO. 130, MICH. PUB. ACTS 1885.  SEE NOTES 8 AND 10. 

FN7  APPELLANT'S MOTION FOR "DIRECTED" VERDICT OF NOT GUILTY WAS
DENIED, AS WAS ALSO ITS MOTION AFTER JUDGMENT FOR A NEW TRIAL.  THE
TRIAL COURT FILED A WRITTEN OPINION WHICH IS UNREPORTED. 

FN8  THE APPROPRIATE STATUTORY CITATIONS ARE SET FORTH IN NOTE 6. 

FN9  SECTION 147 IS AS FOLLOWS:  "ANY PERSON BEING AN OWNER, LESSEE,
PROPRIETOR, MANAGER, SUPERINTENDENT, AGENT OR EMPLOYE OF ANY SUCH PLACE
WHO SHALL DIRECTLY OR INDIRECTLY REFUSE, WITHHOLD FROM OR DENY TO ANY
PERSON ANY OF THE ACCOMMODATIONS, ADVANTAGES, FACILITIES AND PRIVILEGES
THEREOF OR DIRECTLY OR INDIRECTLY PUBLISH, CIRCULATE, ISSUE, DISPLAY,
POST OR MAIL ANY WRITTEN OR PRINTED COMMUNICATIONS, NOTICE OR
ADVERTISEMENT TO THE EFFECT THAT ANY OF THE ACCOMMODATIONS, ADVANTAGES,
FACILITIES AND PRIVILEGES OF ANY SUCH PLACES SHALL BE REFUSED, WITHHELD
FROM OR DENIED TO ANY PERSON ON ACCOUNT OF RACE, CREED OR COLOR OR THAT
ANY PARTICULAR RACE, CREED OR COLOR IS NOT WELCOME, OBJECTIONABLE OR
NOT ACCEPTABLE, NOT DESIRED OR SOLICITED, SHALL FOR EVERY SUCH OFFENSE
BE DEEMED GUILTY OF A MISDEMEANOR AND UPON CONVICTION THEREOF SHALL BE
FINED NOT LESS THAN TWENTY-FIVE DOLLARS OR IMPRISONED FOR NOT LESS THAN
FIFTEEN DAYS OR BOTH SUCH FINE AND IMPRISONMENT IN THE DISCRETION OF
THE COURT; AND EVERY PERSON BEING AN OWNER, LESSEE, PROPRIETOR,
MANAGER, SUPERINTENDENT, AGENT OR EMPLOYE OF ANY SUCH PLACE, AND WHO
VIOLATES ANY OF THE PROVISIONS OF THIS SECTION, SHALL BE LIABLE TO THE
INJURED PARTY, IN TREBLE DAMAGES SUSTAINED, TO BE RECOVERED IN A CIVIL
ACTION:  PROVIDED, HOWEVER, THAT ANY RIGHT OF ACTION UNDER THIS SECTION
SHALL BE UNASSIGNABLE." 

NO SUGGESTION IS MADE THAT THE PHRASE "ON ACCOUNT OF RACE, CREED OR
COLOR" DOES NOT APPLY TO THE WITHHOLDING AND DENYING PROVISIONS OF THE
ADVERTISEMENTS SPECIFIED. 

OR COLOR IN SELECTING GRAND AND PETIT JURORS. 

FN10  THESE CASES WERE DECIDED IN 1883.  THE MICHIGAN STATUTE WAS
ENACTED ORIGINALLY IN 1885.  SEVENTEEN OTHER STATES HAVE SIMILAR, AND
IN MANY INSTANCES SUBSTANTIALLY IDENTICAL, LEGISLATION.  THE STATUTORY
CITATIONS ARE GIVEN IN MORGAN V. VIRGINIA, 328 U.S. 373, 382, N. 24. 

FN11  APPELLANT URGED THAT IT WAS NOT A COMMON CARRIER, A PUBLIC
UTILITY, OR A "PUBLIC CONVEYANCE" WITHIN THE SPECIFIC TERMS OF SEC.
146.  THE STATE SUPREME COURT SAID:  "THERE IS NO ESCAPE FROM THE
CONCLUSION THAT DEFENDANT HEREIN IS ENGAGED IN THE BUSINESS OF
OPERATING 'PUBLIC CONVEYANCES' BY WATER, AND THE MICHIGAN STATUTE
PROVIDES:  'ALL PERSONS WITHIN THE JURISDICTION OF THIS STATE SHALL BE
ENTITLED TO FULL AND EQUAL ACCOMMODATIONS' AFFORDED BY SUCH
CONVEYANCES.  THE MICHIGAN ENACTMENT HAS BEEN HELD CONSTITUTIONAL. 
BOLDEN V. GRAND RAPIDS OPERATING CORP., 239 MICH. 318(53 A.L.R. 183). 
OUR CONCLUSION IS  ...  THAT THE MICHIGAN CIVIL RIGHTS ACT  ...  IS
APPLICABLE TO THE BUSINESS CARRIED ON BY DEFENDANT  ...  "  317 MICH.
686, 695. 

THE COURT DISTINGUISHED MEISNER V. DETROIT, BELLE ISLE & WINDSOR
FERRY CO., 154 MICH. 545, IN WHICH APPELLANT'S CORPORATE PREDECESSOR
WAS HELD NOT LIABLE IN TORT FOR BREACH OF AN ALLEGED DUTY AS A COMMON
CARRIER OF PASSENGERS, BY POINTING OUT THAT NO RIGHT APPARENTLY HAD
BEEN ASSERTED IN THAT CASE GROUNDED ON THE STATE CIVIL RIGHTS ACT.  317
MICH. 686, 696. 

FN12  THE JURISDICTIONAL STATEMENT SOUGHT REVIEW OF THESE FOURTEENTH
AMENDMENT QUESTIONS, AS WELL AS THE COMMERCE CLAUSE ISSUE.  BUT
APPELLANT'S REPLY BRIEF STATES:  "THE CAUSE BEFORE US IS A BUSINESS
CASE ARISING UNDER THE MICHIGAN CIVIL RIGHTS ACT AND THE COMMERCE
CLAUSE; NOT ONE ARISING UNDER THE (FEDERAL) CIVIL RIGHTS ACT AND THE
14TH AMENDMENT."  AND WE WERE GIVEN TO UNDERSTAND AT THE ORAL ARGUMENT,
IN RESPONSE TO SPECIFIC INQUIRY, THAT THE ONLY ISSUE ON WHICH DECISION
WAS SOUGHT AS OF THAT TIME WAS THE COMMERCE CLAUSE QUESTION. 

THE MICHIGAN SUPREME COURT DID NOT REFER EXPLICITLY IN ITS OPINION TO
APPELLANT'S FOURTEENTH AMENDMENT CONTENTIONS, BUT THE RECORD SHOWS THEY
WERE PRESENTED TO THAT COURT IN THE ASSIGNMENTS OF ERROR ON APPEAL AND
WERE THEREFORE NECESSARILY REJECTED BY ITS AFFIRMANCE OF THE JUDGMENT
OF THE RECORDER'S COURT. 

FN13  UNTIL THE CASE REACHED THIS COURT, APPARENTLY, THE STATE HAD
MAINTAINED THAT FOREIGN COMMERCE WAS NOT INVOLVED AND THE TRIAL COURT
SO HELD, ALTHOUGH THE RULING WAS HEDGED WITH THE FURTHER ONE THAT, IF
IT WAS ERRONEOUS, STILL THE STATE'S POWER TO APPLY THE CIVIL RIGHTS ACT
WAS NOT NULLIFIED BY THE COMMERCE CLAUSE. 

FN14  E.G., ON ARRIVAL AT BOIS BLANC ALL PASSENGERS WHO LAND PASS
THROUGH CANADIAN CUSTOMS AND IMMIGRATION INSPECTION.  PRIOR TO THE LATE
WAR, ON RETURNING TO DETROIT, SIMILAR INSPECTIONS WERE MADE BY UNITED
STATES AUTHORITIES.  DURING THE WAR THE LATTER INSPECTION WAS
SUSPENDED, APPELLANT FILING A BOND TO INDEMNIFY THE TREASURY AGAINST
LOSS OF REVENUE AND EXPENSES ARISING FROM ANY FREE IMPORTATION OF
DUTIABLE GOODS FROM BOIS BLANC OR CANADA AND AN AGREEMENT WITH THE
IMMIGRATION SERVICE NOT TO BRING IN ALIENS INELIGIBLE FOR ENTRY. 

FN15  IT DOES NOT APPEAR WHETHER THESE SITES ARE INHABITED, BUT
PRESUMABLY A KEEPER OF THE LIGHTHOUSE OCCUPIES SOME PART OF THE
RESERVED PREMISES. 

FN16  THE PROVINCE OF ONTARIO ENACTED IN 1944 ITS RACIAL
DISCRIMINATION ACT, SESSION LAWS 1944, C. 51. 

FEDERAL LEGISLATION HAS INDICATED A NATIONAL POLICY AGAINST RACIAL
DISCRIMINATION IN THE REQUIREMENT, NOT URGED HERE TO BE SPECIFICALLY
APPLICABLE IN THIS CASE, OF THE INTERSTATE COMMERCE ACT THAT CARRIERS
SUBJECT TO ITS PROVISIONS PROVIDE EQUAL FACILITIES FOR ALL PASSENGERS,
49 U.S.C. SEC. 3(1), EXTENDED TO CARRIERS BY WATER AND AIR, 46 U.S.C.
SEC. 815; 49 U.S.C. SECS. 484, 905.  CF. MITCHELL V. UNITED STATES, 313
U.S. 80.  FEDERAL LEGISLATION ALSO COMPELS A COLLECTIVE BARGAINING
AGENT TO REPRESENT ALL EMPLOYEES IN THE BARGAINING UNIT WITHOUT
DISCRIMINATION BECAUSE OF RACE.  45 U.S.C. SECS. 151 ET SEQ. STEELE V.
LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192; TUNSTALL V. BROTHERHOOD OF
LOCOMOTIVE FIREMEN & ENGINEMEN, 323 U.S. 210.  THE DIRECTION OF
NATIONAL POLICY IS CLEARLY IN ACCORD WITH MICHIGAN POLICY.  CF. ALSO
HIRABAYASHI V. UNITED STATES, 320 U.S. 81; KOREMATSU V. UNITED STATES,
323 U.S. 214; EX PARTE ENDO, 323 U.S. 283. 

FN17  IT IS HARDLY NECESSARY TO RECALL AGAIN THAT BY THE ACT OF
AUGUST 7, 1789, THE FIRST CONGRESS DECLARED THAT PILOTAGE IN BAYS,
INLETS, RIVERS, HARBORS AND PORTS OF THE UNITED STATES SHOULD CONTINUE
TO BE REGULATED IN CONFORMITY WITH EXISTING STATE LAWS OR OTHERS
THEREAFTER ENACTED UNTIL FURTHER ACTION BY CONGRESS.  1 STAT. 54. 
CONGRESS ON OCCASION HAS MODIFIED SUCH STATE LEGISLATION, E.G., BY THE
ACT OF MARCH 2, 1837, 5 STAT. 153, MAKING IT LAWFUL FOR VESSELS
NAVIGATING WATERS CONSTITUTING THE BOUNDARY BETWEEN TWO STATES TO TAKE
ON PILOTS QUALIFIED UNDER THE LAWS OF EITHER. 

FN18  IN OLSEN V. SMITH, 195 U.S. 332, THE COURT SUSTAINED A TEXAS
STATUTE REGULATING PILOTAGE OF A BRITISH VESSEL COMING FROM A FOREIGN
PORT.  THE CONTENTION THAT THE STATE WAS WITHOUT POWER TO LEGISLATE IN
THIS FIELD WAS DISPOSED OF IN ONE SENTENCE.  "THE UNSOUNDNESS OF THIS
CONTENTION IS DEMONSTRATED BY THE PREVIOUS DECISIONS OF THIS COURT,
SINCE IT HAS LONG SINCE BEEN SETTLED THAT EVEN ALTHOUGH STATE LAWS
CONCERNING PILOTAGE ARE REGULATIONS OF COMMERCE, 'THEY FALL WITHIN THAT
CLASS OF POWERS WHICH MAY BE EXERCISED BY THE STATES UNTIL CONGRESS HAS
SEEN FIT TO ACT UPON THE SUBJECT.'  (CITING THE COOLEY AND OTHER
CASES)."  195 U.S. 341.  OTHER CASES UPHOLDING STATE REGULATION OF
FOREIGN COMMERCE ARE TO THE SAME EFFECT.  STEAMSHIP CO. V. JOLIFFE, 2
WALL.  450; WILSON V. MCNAMEE, 102 U.S. 572; ANDERSON V. PACIFIC COAST
S.S. CO., 225 U.S. 187.  CF. CLYDE MALLORY LINES V. ALABAMA, 296 U.S.
261, AND CASES CITED; PIGEON RIVER CO. V. COX CO., 291 U.S. 138, 158
159. 

FN19  THE COURT'S OPINION IN THAT CASE DEALS EXPRESSLY BUT
INDISCRIMINATELY WITH BOTH TYPES OF COMMERCE.  AND FROM THE RECORD AND
ARGUMENTS OF COUNSEL IT SEEMS CLEAR THAT BOTH WERE ACTUALLY INVOLVED. 
THERE WERE TWO CASES RELATING TO TWO DIFFERENT VESSELS, THE CONSUL,
WHICH WAS ENGAGED IN COASTWISE TRADE BETWEEN PHILADELPHIA AND NEW YORK,
AND THE UNDINE, WHICH APPEARS TO HAVE BEEN ENGAGED EXCLUSIVELY IN
FOREIGN COMMERCE.  THE DESTINATION, WHETHER FOREIGN OR DOMESTIC, OF THE
UNDINE IS NOT SHOWN BY THE RECORD, WHICH MERELY STATES THAT IT SAILED
"FROM THE PORT OF PHILADELPHIA TO A CERTAIN PORT NOT WITHIN THE RIVER
DELAWARE  ...  "  BUT FROM THE SPECIFIC "ADDITION" BY COUNSEL FOR
ARGUMENTATIVE PURPOSES, 12 HOW.  AT 302-303, OF THE FACTS THAT THE
CONSUL HELD A FEDERAL COASTING LICENSE AND WAS BOUND FROM ONE DOMESTIC
PORT TO ANOTHER, PLUS THE OMISSION OF ANY REFERENCE IN ARGUMENT OR IN
THE RECORD TO A SIMILAR LICENSE FOR THE UNDINE (WHEN SUCH A REFERENCE
WOULD HAVE SUPPORTED THE ADDITIONAL ARGUMENT), THE INFERENCE SEEMS
JUSTIFIED THAT THE UNDINE HAD SAILED FOR A FOREIGN PORT.  MOREOVER
COUNSEL ARGUED THAT BOTH SHIPS WERE ENGAGED IN FOREIGN COMMERCE,
ALTHOUGH ONLY THE CONSUL WAS ENGAGED IN COASTWISE TRADING. 

FN20  CF. PORT RICHMOND FERRY V. HUDSON COUNTY, 234 U.S. 317, 331
332. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE CASE IS, I THINK, CONTROLLED BY A PRINCIPLE WHICH CUTS DEEPER
THAN THAT ANNOUNCED BY THE COURT AND WHICH IS SO IMPORTANT THAT IT
DESERVES TO BE STATED SEPARATELY. 

HALL V. DECUIR, 95 U.S. 485, AND MORGAN V. VIRGINIA, 328 U.S. 373,
PRESENTED PHASES OF THE PROBLEM OF SEGREGATION.  THE FORMER HELD
UNCONSTITUTIONAL A LOUISIANA LAW FORBIDDING STEAMBOATS (WHICH PLIED THE
MISSISSIPPI) FROM SEGREGATING PASSENGERS ACCORDING TO RACE.  THE LATTER
HELD UNCONSTITUTIONAL A VIRGINIA LAW REQUIRING SEGREGATION OF
PASSENGERS ON INTERSTATE MOTOR BUSES.  IT WAS HELD THAT DIVERSE
REGULATIONS OF THAT CHARACTER BY THE SEVERAL STATES THROUGH WHICH THE
TRAFFIC MOVED WOULD BE AN UNDUE OR UNREASONABLE BURDEN ON INTERSTATE
COMMERCE.  BUT THE QUESTION HERE IS A SIMPLER ONE.  IT IS WHETHER A
STATE CAN PREVENT A CARRIER IN FOREIGN COMMERCE FROM DENYING PASSAGE TO
A PERSON BECAUSE OF HIS RACE OR COLOR.  FOR THIS IS A CASE OF A
DISCRIMINATION AGAINST A NEGRO BY A CARRIER'S COMPLETE DENIAL OF
PASSAGE TO HER BECAUSE OF HER RACE. 

IT IS UNTHINKABLE TO ME THAT WE WOULD STRIKE DOWN A STATE LAW WHICH
REQUIRED ALL CARRIERS - LOCAL AND INTERSTATE - TO TRANSPORT ALL PERSONS
REGARDLESS OF THEIR RACE OR COLOR.  THE COMMON-LAW DUTY OF CARRIERS WAS
TO PROVIDE EQUAL SERVICE TO ALL, A DUTY WHICH THE COURT HAS HELD A
STATE MAY REQUIRE OF INTERSTATE CARRIERS IN THE ABSENCE OF A
CONFLICTING FEDERAL LAW.  MISSOURI PACIFIC R. CO. V. LARABEE FLOUR
MILLS CO., 211 U.S. 612, 619, 623-624.  AND THE POLICE POWER OF A STATE
UNDER OUR CONSTITUTIONAL SYSTEM IS ADEQUATE FOR THE PROTECTION OF THE
CIVIL RIGHTS OF ITS CITIZENS AGAINST DISCRIMINATION BY REASON OF RACE
OR COLOR.  RAILWAY MAIL ASSN. V. CORSI, 326 U.S. 88.  MOREOVER, IN THIS
SITUATION THERE IS NO BASIS FOR SAYING THAT THE COMMERCE CLAUSE ITSELF
DEFEATS SUCH A LAW.  THIS REGULATION WOULD NOT PLACE A BURDEN ON
INTERSTATE COMMERCE WITHIN THE MEANING OF OUR CASES.  IT DOES NOT
IMPOSE A REGULATION WHICH DISCRIMINATES AGAINST INTERSTATE COMMERCE OR
WHICH, BY SPECIFYING THE MODE IN WHICH IT SHALL BE CONDUCTED, DISTURBS
THE UNIFORMITY ESSENTIAL TO ITS PROPER FUNCTIONING.  SEE SOUTHERN
PACIFIC CO. V. ARIZONA, 325 U.S. 761; MORGAN V. VIRGINIA, SUPRA.  I SEE
NOTHING IN THE COMMERCE CLAUSE WHICH PLACES FOREIGN COMMERCE ON A MORE
PROTECTED LEVEL.    THERE IS IN EVERY CASE, OF COURSE, A POSSIBILITY
THAT CONGRESS MAY PASS LAWS REGULATING FOREIGN OR INTERSTATE COMMERCE
IN CONFLICT WITH REGULATIONS PRESCRIBED BY A STATE.  OR IN THE CASE OF
FOREIGN COMMERCE THE NATIONAL GOVERNMENT MIGHT ACT THROUGH A TREATY. 
INCONSISTENT STATE LAW WOULD THEN GIVE WAY TO ANY EXERCISE OF FEDERAL
POWER WITHIN THE SCOPE OF CONSTITUTIONAL AUTHORITY.  BUT I AM AWARE OF
NO POWER WHICH CONGRESS HAS TO CREATE DIFFERENT CLASSES OF CITIZENSHIP
ACCORDING TO COLOR SO AS TO GRANT FREEDOM OF MOVEMENT IN THE CHANNELS
OF COMMERCE TO CERTAIN CLASSES ONLY.  CF. EDWARDS V. CALIFORNIA, 314
U.S. 160, 177-181.  THE FEDERAL POLICY REFLECTED IN ACTS OF CONGRESS
INDEED BARS ANY SUCH DISCRIMINATION (SEE MITCHELL V. UNITED STATES, 313
U.S. 80) AND SO IS WHOLLY IN HARMONY WITH MICHIGAN'S LAW.  AND NO
TREATY REVEALS A DIFFERENT ATTITUDE. 

MOREOVER, THERE IS NO DANGER OF BURDEN AND CONFUSION FROM DIVERSE
STATE LAWS IF MICHIGAN'S REGULATION IS SUSTAINED.  IF A SISTER STATE
UNDERTOOK TO BAR NEGROES FROM PASSAGE ON PUBLIC CARRIERS, THAT LAW
WOULD NOT ONLY CONTRAVENE THE FEDERAL RULE BUT ALSO INVADE A
"FUNDAMENTAL INDIVIDUAL RIGHT WHICH IS GUARANTEED AGAINST STATE ACTION
BY THE FOURTEENTH AMENDMENT."  MITCHELL V. UNITED STATES, SUPRA, P.
94.  NOTHING SHORT OF AT LEAST "EQUALITY OF LEGAL RIGHT" (MISSOURI EX
REL. GAINES V. CANADA, 305 U.S. 337, 350) IN OBTAINING TRANSPORTATION
CAN SATISFY THE EQUAL PROTECTION CLAUSE.  HENCE I DO NOT SEE HOW
APPROVAL OF MICHIGAN'S LAW IN ANY WAY INTERFERES WITH THE UNIFORMITY
ESSENTIAL FOR THE MOVEMENT OF VEHICLES IN COMMERCE.  THE ONLY
CONSTITUTIONAL UNIFORMITY IS UNIFORMITY IN THE MICHIGAN PATTERN. 

IF A STATE'S LAW MADE A HEAD-ON COLLISION WITH THE POLICY OF A
FOREIGN POWER WHOSE SHORES WERE REACHED BY OUR VESSELS, A DIFFERENT
PROBLEM MIGHT BE PRESENTED.  BUT NO SUCH CONFLICT IS PRESENT HERE. 

MR. JUSTICE BLACK, WHO JOINS IN THE OPINION OF THE COURT, CONCURS
ALSO IN THIS OPINION. 

MR. JUSTICE JACKSON, WITH WHOM THE CHIEF JUSTICE AGREES, DISSENTING. 

THIS MICHIGAN STATUTE UNDOUBTEDLY IS VALID WHEN APPLIED TO MICHIGAN
INTRASTATE COMMERCE, JUST AS A CONGRESSIONAL ENACTMENT OF LIKE TENOR
WOULD UNDOUBTEDLY BE VALID AS TO COMMERCE AMONG THE STATES AND WITH
FOREIGN COUNTRIES.  THE QUESTION HERE, HOWEVER, IS WHETHER THE MICHIGAN
STATUTE CAN VALIDLY BE APPLIED TO THAT COMMERCE WHICH IS SET APART BY
THE CONSTITUTION FOR REGULATION BY THE CONGRESS. 

THE SPHERE OF A STATE'S POWER HAS NOT BEEN THOUGHT TO EXPAND OR
CONTRACT BECAUSE OF THE POLICY EMBODIED IN A PARTICULAR REGULATION.  A
STATE STATUTE REQUIRING EQUALITY OF ACCOMMODATIONS FOR WHITE AND NEGRO
PASSENGERS WAS HELD INVALID AS APPLIED TO INTERSTATE COMMERCE.  HALL V.
DECUIR, 95 U.S. 485.  ON THE SAME PRINCIPLE A STATE STATUTE REQUIRING
SEGREGATION WAS HELD INVALID AS APPLIED TO INTERSTATE COMMERCE.  MORGAN
V. VIRGINIA, 328 U.S. 373.  HERETOFORE THE COURT STEADILY HAS HELD THAT
THE FAILURE OF CONGRESS TO ENACT A LAW ON THIS SPECIFIC SUBJECT DOES
NOT OPERATE TO EXPOSE INTERSTATE COMMERCE TO THE BURDEN OF LOCAL RULES,
NO MATTER WHAT POLICY IN THIS HIGHLY CONTROVERSIAL MATTER A STATE
SOUGHT TO ADVANCE.  IT WOULD SEEM TO ME THAT THE CONSTITUTIONAL
PRINCIPLES WHICH HAVE BEEN SO APPARENT TO THE COURT THAT IT WOULD NOT
PERMIT LOCAL POLICIES TO BURDEN NATIONAL COMMERCE, ARE EVEN MORE
OBVIOUS IN RELATION TO FOREIGN COMMERCE. 

CERTAINLY IF ANY STATE CAN ENFORCE REGULATIONS CONCERNING EMBARKATION
AND LANDING, IT CAN IN EFFECT CONTROL MUCH THAT PERTAINS TO THE FOREIGN
JOURNEY.  TO DETERMINE WHAT PERSONS AND COMMODITIES SHALL BE TAKEN
ABROAD IS TO CONTROL WHAT PERSONS AND COMMODITIES MAY BECOME THE
SUBJECT OF FOREIGN COMMERCE, AND THAT IS TO CONTROL THE LIFEBLOOD OF
THE COMMERCE ITSELF.  THESE ARE IDENTICAL WITH MATTERS IN WHICH THIS
COMMERCE IS SUBJECT TO CONTROL BY FEDERAL AND FOREIGN GOVERNMENTS.  THE
FEDERAL GOVERNMENT TAKES ACTIVE CONTROL OF THE INBOUND MOVEMENT OF
GOODS BY VIRTUE OF ITS CUSTOMS SERVICE AND OF THE MOVEMENT OF PERSONS
BY VIRTUE OF ITS IMMIGRATION SERVICE ACROSS THESE BOUNDARIES.  THE
CANADIAN GOVERNMENT DOES THE SAME ON THE OUTBOUND CROSSING OF THE
INTERNATIONAL LINE.  IT DOES SO IN THIS CASE, AND IT DOES SO EVEN IF
THE BULK OF THE TRAVELERS DO NOT GO VERY FAR OR STAY VERY LONG AND ARE
MERELY AMUSEMENT BENT. 

THE WHOLESOME AND AMIABLE SITUATION DETAILED IN THE COURT'S OPINION
IS MADE POSSIBLE ONLY BY INTERNATIONAL RELATIONS WHOLLY CONTROLLED BY
THE FEDERAL GOVERNMENT.  IT ALONE CAN EFFECTIVELY PROTECT OR FOSTER
THIS KIND OF COMMERCE, AND IT ALONE SHOULD BE ALLOWED TO BURDEN IT.  IF
WE ARE TO CONCEDE THIS POWER OVER FOREIGN COMMERCE TO ONE STATE, IT
WOULD SEEM THAT IT COULD LOGICALLY BE CLAIMED BY EVERY STATE WHICH HAS
A PORT, BORDER, OR LANDING FIELD USED BY FOREIGN COMMERCE. 

THE COURT ADMITS THAT THE COMMERCE INVOLVED IN THIS CASE IS FOREIGN
COMMERCE, BUT SUBJECTS IT TO THE STATE POLICE POWER ON THE GROUND THAT
IT IS NOT VERY FOREIGN.  IT FAILS TO LAY DOWN ANY STANDARD BY WHICH WE
CAN JUDGE WHEN FOREIGN COMMERCE IS FOREIGN ENOUGH TO BECOME FREE OF
LOCAL REGULATION.  THE COMMERCE INVOLVED HERE IS NOT DISTINGUISHABLE
FROM A GREAT DEAL OF THE TRAFFIC ACROSS OUR CANADIAN AND MEXICAN
BORDERS, EXCEPT PERHAPS IN VOLUME.  COMMUNITIES HAVE SPRUNG UP ON
EITHER SIDE, WHOSE SOCIAL AND ECONOMIC RELATIONS ARE INTERDEPENDENT,
BUT ARE CONDUCTED WITH SCRUPULOUS REGARD FOR THE INTERNATIONAL
BOUNDARY.  LOCALITIES ON EITHER SIDE OF THE LINE MAY DEVELOP IN
RELIANCE ON A CERTAIN RECIPROCITY AND STABILITY OF POLICY WHICH HAS
CHARACTERIZED TWO NATIONS FOR YEARS, WHEN THEY CANNOT RELY ON SIMILAR
STABILITY OR FARSIGHTEDNESS IN LOCAL POLICY. 

IT SEEMS TO ME NO ADEQUATE PROTECTION OF FOREIGN COMMERCE FROM A
MULTITUDE AND DIVERSITY OF BURDENING AND CAPRICIOUS LOCAL REGULATIONS
THAT THIS COURT MAY STAND READY, AS IN THIS CASE, TO APPLY ITSELF TO AN
ANALYSIS OF THE TRAFFIC INVOLVED AND DETERMINE IN EACH CASE WHETHER THE
LOCAL INTEREST IN IT IS SUFFICIENTLY STRONG AND THE FOREIGN ELEMENT IS
SUFFICIENTLY WEAK SO THAT WE WILL PERMIT THE REGULATION TO STAND.  WE
DO NOT AND APPARENTLY CANNOT ENUNCIATE ANY LEGAL CRITERIA BY WHICH
THOSE WHO ENGAGE IN FOREIGN COMMERCE CAN PREDICT WHICH CLASSIFICATION
WE WILL IMPOSE UPON ANY PARTICULAR OPERATION AND WE LAY DOWN NO RULE
OTHER THAN OUR PASSING IMPRESSION TO GUIDE OURSELVES OR OUR
SUCCESSORS.  ALL IS LEFT TO CASE-BY-CASE CONJECTURE.  THE COMMERCE
CLAUSE WAS INTENDED TO PROMOTE COMMERCE RATHER THAN LITIGATION. 

I BELIEVE THAT ONCE IT IS CONCEDED, AS IT IS IN THIS CASE, THAT THE
COMMERCE INVOLVED IS FOREIGN COMMERCE, THAT FACT ALONE SHOULD BE ENOUGH
TO PREVENT A STATE FROM CONTROLLING WHAT MAY, OR WHAT MUST, MOVE IN THE
STREAM OF THAT COMMERCE. 
..END :




OYAMA V. CALIFORNIA, 332 U.S. 633 


NO. 44.  ARGUED OCTOBER 22, 1947.  - DECIDED JANUARY 19, 1948.  - 29
CAL.2D 164, 173 P.2D 794, REVERSED. 


1.  THE CALIFORNIA ALIEN LAND LAW, AS APPLIED IN THIS CASE TO EFFECT
AN ESCHEAT TO THE STATE OF CERTAIN AGRICULTURAL LANDS RECORDED IN THE
NAME OF A MINOR AMERICAN CITIZEN BECAUSE THEY HAD BEEN PAID FOR BY HIS
FATHER, A JAPANESE ALIEN INELIGIBLE FOR NATURALIZATION WHO WAS
APPOINTED THE SON'S GUARDIAN, HELD TO HAVE DEPRIVED THE SON OF THE
EQUAL PROTECTION OF THE LAWS AND OF HIS PRIVILEGES AS AN AMERICAN
CITIZEN, CONTRARY TO THE FOURTEENTH AMENDMENT AND R.S. SEC. 1978.  PP.
640-647. 

2.  THE ALIEN LAND LAW, AS APPLIED IN THIS CASE, DISCRIMINATED
AGAINST THE CITIZEN SON IN THE FOLLOWING RESPECTS: 

(A)  BY A STATUTORY PRIMA FACIE PRESUMPTION THAT CONVEYANCES FINANCED
BY HIS FATHER AND RECORDED IN THE SON'S NAME WERE NOT GIFTS TO THE SON
BUT THAT THE LAND WAS HELD FOR THE BENEFIT OF THE FATHER; WHEREAS, FOR
MOST MINORS, CALIFORNIA APPLIES THE RULE THAT WHERE A PARENT PAYS FOR A
CONVEYANCE TO HIS CHILD IT IS PRESUMED THAT A GIFT WAS INTENDED.  PP.
641-642, 644-645. 

(B)  BECAUSE, UNDER THE LAWS OF CALIFORNIA AS APPLIED BY ITS COURTS
WHEN THE FATHER IS INELIGIBLE FOR CITIZENSHIP, FACTS WHICH WOULD
USUALLY BE CONSIDERED INDICIA OF THE SON'S OWNERSHIP ARE USED TO MAKE
THAT OWNERSHIP SUSPECT; WHEREAS, IF THE FATHER WERE NOT AN INELIGIBLE
ALIEN, THE SAME FACTS WOULD BE EVIDENCE THAT A COMPLETED GIFT WAS
INTENDED.  P. 642. 

(C)  BY BEING REQUIRED TO COUNTER EVIDENCE THAT HIS FATHER WAS REMISS
IN HIS DUTIES AS GUARDIAN; WHEREAS NO OTHER CALIFORNIA CASE HAS BEEN
CALLED TO THIS COURT'S ATTENTION IN WHICH THE PENALTY FOR A GUARDIAN'S
DERELICTIONS HAS FALLEN ON THE WARD.  PP. 642-644. 

3.  THE SOLE BASIS FOR THIS DISCRIMINATION, WHICH RESULTED IN A
CITIZEN LOSING THE LAND IRRETRIEVABLY AND WITHOUT COMPENSATION, WAS THE
FACT THAT HIS FATHER WAS JAPANESE.  COCKRILL V. CALIFORNIA, 268 U.S.
258, DISTINGUISHED.  PP. 644-645. 

4.  SUCH DISCRIMINATION AGAINST A CITIZEN ON THE BASIS OF HIS RACIAL
DESCENT CANNOT BE JUSTIFIED ON THE GROUND THAT IT IS NECESSARY TO
PREVENT EVASION OF THE STATE'S LAWS PROHIBITING THE OWNERSHIP OF
AGRICULTURAL LAND BY ALIENS WHO ARE INELIGIBLE FOR CITIZENSHIP.  PP.
646-647. 

OYAMA ET AL. V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

THE SUPREME COURT OF CALIFORNIA AFFIRMED A DECISION OF A STATE TRIAL
COURT DECLARING ESCHEATED TO THE STATE UNDER THE CALIFORNIA ALIEN LAND
LAW, 1 CAL. GEN. LAWS, ACT 261, AS AMENDED, CERTAIN AGRICULTURAL LANDS
RECORDED IN THE NAME OF A MINOR AMERICAN CITIZEN, WHICH LANDS HAD BEEN
PAID FOR BY HIS FATHER, A JAPANESE CITIZEN INELIGIBLE FOR
NATURALIZATION.  29 CAL.2D 164, 173 P.2D 794.  THIS COURT GRANTED
CERTIORARI.  330 U.S. 818.  REVERSED, P. 647. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

PETITIONERS CHALLENGE THE CONSTITUTIONALITY OF CALIFORNIA'S ALIEN
LAND LAW  FN1  AS IT HAS BEEN APPLIED IN THIS CASE TO EFFECT AN ESCHEAT
OF TWO SMALL PARCELS OF AGRICULTURAL LAND.  FN2  ONE OF THE PETITIONERS
IS FRED OYAMA, A MINOR AMERICAN CITIZEN IN WHOSE NAME TITLE WAS TAKEN. 
THE OTHER IS HIS FATHER AND GUARDIAN, KAJIRO OYAMA, A JAPANESE CITIZEN
NOT ELIGIBLE FOR NATURALIZATION,  FN3 WHO PAID THE PURCHASE PRICE. 

PETITIONERS PRESS THREE ATTACKS ON THE ALIEN LAND LAW AS IT HAS BEEN
APPLIED IN THIS CASE: FIRST, THAT IT DEPRIVES FRED OYAMA OF THE EQUAL
PROTECTION OF THE LAWS AND OF HIS PRIVILEGES AS AN AMERICAN CITIZEN;
SECONDLY, THAT IT DENIES KAJIRO OYAMA EQUAL PROTECTION OF THE LAWS;
AND, THIRDLY, THAT IT CONTRAVENES THE DUE PROCESS CLAUSE BY SANCTIONING
A TAKING OF PROPERTY AFTER EXPIRATION OF THE APPLICABLE LIMITATIONS
PERIOD.  PROPER FOUNDATION FOR THESE CLAIMS HAS BEEN LAID IN THE
PROCEEDINGS BELOW. 

IN APPROACHING CASES, SUCH AS THIS ONE, IN WHICH FEDERAL
CONSTITUTIONAL RIGHTS ARE ASSERTED, IT IS INCUMBENT ON US TO INQUIRE
NOT MERELY WHETHER THOSE RIGHTS HAVE BEEN DENIED IN EXPRESS TERMS, BUT
ALSO WHETHER THEY HAVE BEEN DENIED IN SUBSTANCE AND EFFECT.  WE MUST
REVIEW INDEPENDENTLY BOTH THE LEGAL ISSUES AND THOSE FACTUAL MATTERS
WITH WHICH THEY ARE COMMINGLED.  FN4 

IN BROAD OUTLINE, THE ALIEN LAND LAW FORBIDS ALIENS INELIGIBLE FOR
AMERICAN CITIZENSHIP TO ACQUIRE, OWN, OCCUPY, LEASE, OR TRANSFER
AGRICULTURAL LAND.  FN5  IT ALSO PROVIDES THAT ANY PROPERTY ACQUIRED IN
VIOLATION OF THE STATUTE SHALL ESCHEAT AS OF THE DATE OF ACQUISITION
FN6 AND THAT THE SAME RESULT SHALL FOLLOW ANY TRANSFER MADE WITH
"INTENT TO PREVENT, EVADE OR AVOID" ESCHEAT.  FN7  IN ADDITION, THAT
INTENT IS PRESUMED, PRIMA FACIE, WHENEVER AN INELIGIBLE ALIEN PAYS THE
CONSIDERATION FOR A TRANSFER TO A CITIZEN OR ELIGIBLE ALIEN.  FN8 

THE FIRST OF THE TWO PARCELS IN QUESTION, CONSISTING OF SIX ACRES OF
AGRICULTURAL LAND IN SOUTHERN CALIFORNIA, WAS PURCHASED IN 1934, WHEN
FRED OYAMA WAS SIX YEARS OLD.  KAJIRO OYAMA PAID THE $4,000
CONSIDERATION, AND THE SELLER EXECUTED A DEED TO FRED.  THE DEED WAS
DULY RECORDED. 

SOME SIX MONTHS LATER, THE FATHER PETITIONED THE SUPERIOR COURT FOR
SAN DIEGO COUNTY TO BE APPOINTED FRED'S GUARDIAN, STATING THAT FRED
OWNED THE SIX ACRES.  AFTER A HEARING, THE COURT FOUND THE ALLEGATIONS
OF THE PETITION TRUE AND KAJIRO OYAMA "A COMPETENT AND PROPER PERSON"
TO BE APPOINTED FRED'S GUARDIAN.  THE APPOINTMENT WAS THEN ORDERED, AND
THE FATHER POSTED THE NECESSARY BOND. 

IN 1936 AND AGAIN IN 1937, THE FATHER AS GUARDIAN SOUGHT PERMISSION
TO BORROW $4,000, PAYABLE IN SIX MONTHS, FOR THE PURPOSE OF FINANCING
THE NEXT SEASON'S CROPS AND TO MORTGAGE THE SIX-ACRE PARCEL AS
SECURITY.  IN EACH CASE NOTICE OF THE PETITION AND DATE FOR HEARING WAS
PUBLISHED IN A NEWSPAPER, THE COURT THEN APPROVED THE BORROWING AS
ADVANTAGEOUS TO FRED OYAMA'S ESTATE, AND THE FATHER POSTED A BOND FOR
$8,000.  SO FAR AS APPEARS FROM THE RECORD, BOTH LOANS WERE OBTAINED,
USED FOR THE BENEFIT OF THE ESTATE, AND REPAID ON MATURITY. 

THE SECOND PARCEL, AN ADJOINING TWO ACRES, WAS ACQUIRED IN 1937, WHEN
FRED WAS NINE YEARS OLD.  IT WAS SOLD BY THE GUARDIAN OF ANOTHER MINOR,
AND THE COURT SUPERVISING THAT GUARDIANSHIP CONFIRMED THE SALE "TO FRED
OYAMA" AS HIGHEST BIDDER AT A PUBLICLY ADVERTISED SALE.  A COPY OF THE
COURT'S ORDER WAS RECORDED.  FRED'S FATHER AGAIN PAID THE PURCHASE
PRICE, $1,500. 

FROM THE TIME OF THE TWO TRANSFERS UNTIL THE DATE OF TRIAL, HOWEVER,
KAJIRO OYAMA DID NOT FILE THE ANNUAL REPORTS WHICH THE ALIEN LAND LAW
REQUIRES OF ALL GUARDIANS OF AGRICULTURAL LAND BELONGING TO MINOR
CHILDREN OF INELIGIBLE ALIENS.  FN9 

IN 1942, FRED AND HIS FAMILY WERE EVACUATED FROM THE PACIFIC COAST
ALONG WITH ALL OTHER PERSONS OF JAPANESE DESCENT.  AND IN 1944, WHEN
FRED WAS SIXTEEN AND STILL FORBIDDEN TO RETURN HOME, THE STATE FILED A
PETITION TO DECLARE AN ESCHEAT OF THE TWO PARCELS ON THE GROUND THAT
THE CONVEYANCES IN 1934 AND 1937 HAD BEEN WITH INTENT TO VIOLATE AND
EVADE THE ALIEN LAND LAW. 

AT THE TRIAL THE ONLY WITNESS, OTHER THAN A COURT OFFICIAL TESTIFYING
TO RECORDS SHOWING THE FACTS SET FORTH ABOVE, WAS ONE JOHN KURFURST,
WHO HAD BEEN LEFT IN CHARGE OF THE LAND AT THE TIME OF THE EVACUATION. 
HE TESTIFIED THAT THE OYAMA FAMILY ONCE LIVED ON THE LAND BUT HAD NOT
OCCUPIED IT FOR SEVERAL YEARS BEFORE THE EVACUATION.  AFTER THE
EVACUATION, KURFURST AND THOSE TO WHOM HE RENTED THE PROPERTY DREW
CHECKS TO FRED OYAMA FOR THE RENTALS (LESS EXPENSES), AND KURFURST
TRANSMITTED THEM TO FRED OYAMA THROUGH THE WAR RELOCATION AUTHORITY. 
THE CANCELED CHECKS WERE RETURNED ENDORSED "FRED OYAMA," AND NO
EVIDENCE WAS OFFERED TO PROVE THAT THE SIGNATURES WERE NOT BY THE SON. 
MOREOVER, THE RECEIPTS ISSUED BY THE WAR RELOCATION AUTHORITY FOR THE
FUNDS TRANSMITTED BY KURFURST WERE FOR THE ACCOUNT OF FRED OYAMA, AND
KURFURST IDENTIFIED A LETTER SIGNED "FRED OYAMA" DIRECTING HIM TO TURN
THE PROPERTY OVER TO A LOCAL BANK FOR MANAGEMENT. 

ON DIRECT EXAMINATION BY THE STATE'S ATTORNEY, HOWEVER, KURFURST ALSO
TESTIFIED THAT HE KNEW THE FATHER AS "FRED," BUT HE ADDED THAT HE HAD
NEVER HEARD THE FATHER REFER TO HIMSELF BY THAT NAME.  IN ADDITION, HE
TESTIFIED ON CROSS-EXAMINATION THAT HE HAD ONCE HEARD THE FATHER SAY,
"SOME DAY THE BOY WILL HAVE A GOOD PIECE OF PROPERTY BECAUSE THAT IS
GOING TO BE VALUABLE."  HE ALSO ADMITTED THAT HE KNEW "THE FATHER WAS
RUNNING THE BOY'S BUSINESS" AND THAT "THE PROPERTY BELONGED TO THE BOY
AND TO JUNE KUSHINO" (FRED'S COUSIN, AN AMERICAN CITIZEN).  KURFURST
FURTHER ACKNOWLEDGED THAT IN A LETTER HE HAD WRITTEN ABOUT THE PROPERTY
AND HAD HEADED "RE:  FRED YOSHIHIRO OYAMA AND JUNE KUSHINO" HE MEANT BY
"FRED YOSHIHIRO OYAMA" THE BOY, NOT THE FATHER.  HE ALSO UNDERSTOOD A
LETTER WRITTEN TO HIM BY THE WAR RELOCATION AUTHORITY "RE:  FRED OYAMA"
TO REFER TO THE BOY. 

FROM THIS EVIDENCE THE TRIAL COURT FOUND AS FACTS THAT THE FATHER HAD
HAD THE BENEFICIAL USE OF THE LAND AND THAT THE TRANSFERS WERE
SUBTERFUGES EFFECTED WITH INTENT TO PREVENT, EVADE OR AVOID ESCHEAT. 
ACCORDINGLY, THE COURT ENTERED ITS CONCLUSION OF LAW THAT THE PARCELS
HAD VESTED IN THE STATE AS OF THE DATE OF THE ATTEMPTED TRANSFERS IN
1934 AND 1937. 

THE TRIAL COURT FILED NO WRITTEN OPINION BUT INDICATED ORALLY THAT
ITS FINDINGS WERE BASED PRIMARILY ON FOUR INFERENCES:  (1) THE
STATUTORY PRESUMPTION THAT ANY CONVEYANCE IS WITH "INTENT TO PREVENT,
EVADE OR AVOID" ESCHEAT IF AN INELIGIBLE ALIEN PAYS THE CONSIDERATION;
FN10  (2) AN INFERENCE OF SIMILAR INTENT FROM THE MERE FACT THAT THE
CONVEYANCES RAN TO A MINOR CHILD; FN11 (3) AN INFERENCE OF LACK OF BONA
FIDES AT THE TIME OF THE ORIGINAL TRANSACTIONS FROM THE FACT THAT THE
FATHER THEREAFTER FAILED TO FILE ANNUAL GUARDIANSHIP REPORTS; AND (4)
AN INFERENCE FROM THE FATHER'S FAILURE TO TESTIFY THAT HIS TESTIMONY
WOULD HAVE BEEN ADVERSE TO HIS SON'S CAUSE.  NO COUNTERVAILING
INFERENCE WAS WARRANTED BY THE EXHIBITS IN FRED'S NAME, THE JUDGE SAID,
"BECAUSE THERE ARE MANY INSTANCES WHERE THERE IS LITTLE IN A NAME." 

IN HOLDING THE TRIAL COURT'S FINDINGS OF INTENT FULLY JUSTIFIED BY
THE EVIDENCE, THE SUPREME COURT OF CALIFORNIA POINTED TO THE SAME FOUR
INFERENCES.  IT ALSO RULED THAT CALIFORNIA COULD CONSTITUTIONALLY
EXCLUDE INELIGIBLE ALIENS FROM ANY INTEREST IN AGRICULTURAL LAND,  FN12
AND THAT FRED OYAMA WAS DEPRIVED OF NO CONSTITUTIONAL GUARANTEES SINCE
THE LAND HAD PASSED TO THE STATE WITHOUT EVER VESTING IN HIM. 

WE AGREE WITH PETITIONERS' FIRST CONTENTION, THAT THE ALIEN LAND LAW,
AS APPLIED IN THIS CASE, DEPRIVES FRED OYAMA OF THE EQUAL PROTECTION OF
CALIFORNIA'S LAWS AND OF HIS PRIVILEGES AS AN AMERICAN CITIZEN.  IN OUR
VIEW OF THE CASE, THE STATE HAS DISCRIMINATED AGAINST FRED OYAMA; THE
DISCRIMINATION IS BASED SOLELY ON HIS PARENTS' COUNTRY OF ORIGIN; AND
THERE IS ABSENT THE COMPELLING JUSTIFICATION WHICH WOULD BE NEEDED TO
SUSTAIN DISCRIMINATION OF THAT NATURE. 

BY FEDERAL STATUTE, ENACTED BEFORE THE FOURTEENTH AMENDMENT BUT
VINDICATED BY IT, THE STATES MUST ACCORD TO ALL CITIZENS THE RIGHT TO
TAKE AND HOLD REAL PROPERTY.  FN13  CALIFORNIA, OF COURSE, RECOGNIZES
BOTH THIS RIGHT AND THE FACT THAT INFANCY DOES NOT INCAPACITATE A MINOR
FROM HOLDING REALTY.  FN14  IT IS ALSO ESTABLISHED UNDER CALIFORNIA LAW
THAT INELIGIBLE ALIENS MAY ARRANGE GIFTS OF AGRICULTURAL LAND TO THEIR
CITIZEN CHILDREN.  FN15  LIKEWISE, WHEN A MINOR CITIZEN DOES BECOME THE
OWNER OF AGRICULTURAL LAND, BY GIFT OR OTHERWISE, HIS FATHER MAY BE
APPOINTED GUARDIAN OF THE ESTATE, WHETHER THE FATHER BE A CITIZEN, AN
ELIGIBLE ALIEN, OR AN INELIGIBLE ALIEN.  FN16  AND, ONCE APPOINTED, A
GUARDIAN IS ENTITLED TO HAVE CUSTODY OF THE ESTATE AND TO MANAGE AND
HUSBAND IT FOR THE WARD'S BENEFIT.  FN17  TO THAT EXTENT FRED OYAMA IS
OSTENSIBLY ON A PAR WITH MINORS OF DIFFERENT LINEAGE. 

AT THIS POINT, HOWEVER, THE ROAD FORKS.  THE CALIFORNIA LAW POINTS IN
ONE DIRECTION FOR MINOR CITIZENS LIKE FRED OYAMA, WHOSE PARENTS CANNOT
BE NATURALIZED, AND IN ANOTHER FOR ALL OTHER CHILDREN - FOR MINOR
CITIZENS WHOSE PARENTS ARE EITHER CITIZENS OR ELIGIBLE ALIENS, AND EVEN
FOR MINORS WHO ARE THEMSELVES ALIENS THOUGH ELIGIBLE FOR
NATURALIZATION. 

IN THE FIRST PLACE, FOR MOST MINORS CALIFORNIA HAS THE CUSTOMARY RULE
THAT WHERE A PARENT PAYS FOR A CONVEYANCE TO HIS CHILD THERE IS A
PRESUMPTION THAT A GIFT IS INTENDED; THERE IS NO PRESUMPTION OF A
RESULTING TRUST, NO PRESUMPTION THAT THE MINOR TAKES THE LAND FOR THE
BENEFIT OF HIS PARENT.  FN18  WHEN A GIFT IS THUS PRESUMED AND THE DEED
IS RECORDED IN THE CHILD'S NAME, THE RECORDING SUFFICES FOR DELIVERY,
FN19  AND, ABSENT EVIDENCE THAT THE GIFT IS DISADVANTAGEOUS, ACCEPTANCE
IS ALSO PRESUMED.  FN20  THUS THE BURDEN OF PROVING THAT THERE WAS IN
FACT NO COMPLETED BONA FIDE GIFT FALLS TO HIM WHO WOULD ATTACK ITS
VALIDITY. 

FRED OYAMA, ON THE OTHER HAND, FACED AT THE OUTSET THE NECESSITY OF
OVERCOMING A STATUTORY PRESUMPTION THAT CONVEYANCES FINANCED BY HIS
FATHER AND RECORDED IN FRED'S NAME WERE NOT GIFTS AT ALL.  SOMETHING
VERY AKIN TO A RESULTING TRUST WAS PRESUMED AND, AT LEAST PRIMA FACIE,
FRED WAS PRESUMED TO HOLD TITLE FOR THE BENEFIT OF HIS PARENT.  FN21 

IN THE SECOND PLACE, WHEN IT CAME TO REBUTTING THIS STATUTORY
PRESUMPTION, FRED OYAMA RAN INTO OTHER OBSTACLES WHICH, SO FAR AS WE
CAN ASCERTAIN, DO NOT BESET THE PATH OF MOST MINOR DONEES IN
CALIFORNIA. 

THUS THE CALIFORNIA COURTS SAID THAT THE VERY FACT THAT THE TRANSFER
PUT THE LAND BEYOND THE FATHER'S POWER TO DEAL WITH IT DIRECTLY - TO
DEED IT AWAY, TO BORROW MONEY ON IT, AND TO MAKE FREE DISPOSITION OF IT
IN ANY OTHER WAY - SHOWED THAT THE TRANSFER WAS NOT COMPLETE, THAT IT
WAS MERELY COLORABLE.  THE FACT THAT THE FATHER ATTACHED NO STRINGS TO
THE TRANSFER WAS TAKEN TO INDICATE THAT HE MEANT, IN EFFECT, TO ACQUIRE
THE BENEFICIAL OWNERSHIP HIMSELF.  THE CALIFORNIA LAW PURPORTS TO
PERMIT CITIZEN SONS TO TAKE GIFTS OF AGRICULTURAL LAND FROM THEIR
FATHERS, REGARDLESS OF THE FATHERS' NATIONALITY.  YET, AS INDICATED BY
THIS CASE, IF THE FATHER IS INELIGIBLE FOR CITIZENSHIP, FACTS WHICH
WOULD USUALLY BE CONSIDERED INDICIA OF THE SON'S OWNERSHIP ARE USED TO
MAKE THAT OWNERSHIP SUSPECT; IF THE FATHER IS NOT AN INELIGIBLE ALIEN,
HOWEVER, THE SAME FACTS WOULD BE EVIDENCE THAT A COMPLETED GIFT WAS
INTENDED. 

FURTHERMORE, FRED OYAMA HAD TO COUNTER EVIDENCE THAT HIS FATHER WAS
REMISS IN HIS DUTIES AS GUARDIAN.  ACTS SUBSEQUENT TO A TRANSFER MAY,
OF COURSE, BE RELEVANT TO INDICATE A TRANSFEROR'S INTENT AT THE TIME OF
THE TRANSFER.  IN THIS CASE THE TRIAL COURT ITSELF HAD RESERVATIONS AS
TO THE EVIDENTIARY VALUE OF THE FATHER'S OMISSIONS; FN22  WITH THESE WE
AGREE, ESPECIALLY BECAUSE THERE WAS SOME REASON TO BELIEVE REPORTS WERE
NOT REQUIRED OF HIM UNTIL 1943,  FN23  AND HE HAD BEEN EXCLUDED FROM
THE STATE FROM 1942 ON.  MORE IMPORTANT TO THE ISSUE OF EQUAL
PROTECTION, HOWEVER, OUR ATTENTION HAS BEEN CALLED TO NO OTHER CASE IN
WHICH THE PENALTY FOR A GUARDIAN'S DERELICTIONS HAS FALLEN ON ANY ONE
BUT THE GUARDIAN.  AT ANY TIME THE COURT SUPERVISING THE GUARDIANSHIP
COULD HAVE DEMANDED THE ANNUAL ACCOUNTS AND, IF APPROPRIATE, COULD HAVE
REMOVED KAJIRO OYAMA AS GUARDIAN; SEVERE PUNISHMENT COULD ALSO HAVE
BEEN METED OUT.  FN24  THE WHOLE THEORY OF GUARDIANSHIPS IS TO PROTECT
THE WARD DURING HIS PERIOD OF INCAPACITY TO PROTECT HIMSELF.  IN FRED
OYAMA'S CASE, HOWEVER, THE FATHER'S DEEDS WERE VISITED ON THE SON; THE
WARD BECAME THE GUARANTOR OF HIS GUARDIAN'S CONDUCT.    THE CUMULATIVE
EFFECT, WE BELIEVE, WAS CLEARLY TO DISCRIMINATE AGAINST FRED OYAMA.  HE
WAS SADDLED WITH AN ONEROUS BURDEN OF PROOF WHICH NEED NOT BE BORNE BY
CALIFORNIA CHILDREN GENERALLY.  THE STATUTORY PRESUMPTION AND THE TWO
ANCILLARY INFERENCES, WHICH WOULD NOT BE USED AGAINST MOST CHILDREN,
WERE GIVEN SUCH PROBATIVE VALUE AS TO PREVAIL IN THE FACE OF A DEED
ENTERED IN THE PUBLIC RECORDS, FOUR COURT ORDERS RECOGNIZING FRED OYAMA
AS THE OWNER OF THE LAND, SEVERAL NEWSPAPER NOTICES TO THE SAME EFFECT,
AND TESTIMONY THAT BUSINESS TRANSACTIONS REGARDING THE LAND WERE
GENERALLY UNDERSTOOD TO BE ON HIS BEHALF.  IN SHORT, FRED OYAMA LOST
HIS GIFT, IRRETRIEVABLY AND WITHOUT COMPENSATION, SOLELY BECAUSE OF THE
EXTRAORDINARY OBSTACLES WHICH THE STATE SET BEFORE HIM. 

THE ONLY BASIS FOR THIS DISCRIMINATION AGAINST AN AMERICAN CITIZEN,
MOREOVER, WAS THE FACT THAT HIS FATHER WAS JAPANESE AND NOT AMERICAN,
RUSSIAN, CHINESE, OR ENGLISH.  BUT FOR THAT FACT ALONE, FRED OYAMA, NOW
A LITTLE OVER A YEAR FROM MAJORITY, WOULD BE THE UNDISPUTED OWNER OF
THE EIGHT ACRES IN QUESTION. 

THE STATE ARGUES THAT RACIAL DESCENT IS NOT THE BASIS FOR WHATEVER
DISCRIMINATION HAS TAKEN PLACE.  THE ARGUMENT IS THAT THE SAME
STATUTORY PRESUMPTION OF FRAUD WOULD APPLY ALIKE TO ANY PERSON TAKING
AGRICULTURAL LAND PAID FOR BY KAJIRO OYAMA, WHETHER THE RECIPIENT WAS
FRED OYAMA OR A STRANGER OF ENTIRELY DIFFERENT ANCESTRY.  WE DO NOT
KNOW HOW REALISTIC IT IS TO SUPPOSE THAT KAJIRO OYAMA WOULD ATTEMPT
GIFTS OF LAND TO OTHERS THAN HIS CLOSE RELATIVES.  BUT IN ANY EVENT,
THE STATE'S ARGUMENT IGNORES THE FACT THAT THE GENERALLY APPLICABLE
CALIFORNIA LAW TREATS CONVEYANCES TO THE TRANSFEROR'S CHILDREN
DIFFERENTLY FROM CONVEYANCES TO STRANGERS.  WHENEVER A CHINESE OR
ENGLISH PARENT, TO TAKE AN EXAMPLE, PAYS A THIRD PARTY TO DEED LAND TO
A STRANGER, A RESULTING TRUST IS PRESUMED TO ARISE, AND THE STRANGER IS
PRESUMED TO HOLD THE LAND FOR THE BENEFIT OF THE PERSON PAYING THE
CONSIDERATION N25; WHEN THE ALIEN LAND LAW APPLIES A SIMILAR
PRESUMPTION TO A LIKE TRANSFER BY KAJIRO OYAMA TO A STRANGER, IT
APPEARS MERELY TO REITERATE THE GENERALLY APPLICABLE LAW OF RESULTING
TRUSTS.  WHEN, ON THE OTHER HAND, THE SAME CHINESE OR ENGLISH FATHER
USES HIS OWN FUNDS TO BUY LAND IN HIS CITIZEN SON'S NAME, AN
INDEFEASIBLE TITLE IS PRESUMED TO VEST IN THE BOY; FN26  BUT WHEN
KAJIRO OYAMA ARRANGES A SIMILAR TRANSFER TO FRED OYAMA, THE ALIEN LAND
LAW INTERPOSES A PRESUMPTION JUST TO THE CONTRARY.  THUS, AS BETWEEN
THE CITIZEN CHILDREN OF A CHINESE OR ENGLISH FATHER AND THE CITIZEN
CHILDREN OF A JAPANESE FATHER, THERE IS DISCRIMINATION; AS BETWEEN
STRANGERS TAKING FROM THE SAME TRANSFERORS, THERE APPEARS TO BE NONE. 

IT IS FOR THIS REASON THAT COCKRILL V. CALIFORNIA, 268 U.S.
258(1925), DOES NOT SUPPORT THE STATE'S POSITION.  IN THAT CASE AN
INELIGIBLE ALIEN PAID FOR LAND AND HAD TITLE PUT IN A STRANGER'S NAME,
AND THIS COURT AFFIRMED A DECISION UPHOLDING THE STATUTORY PRESUMPTION
OF THE ALIEN LAND LAW AS THERE APPLIED.  FN27 

THERE REMAINS THE QUESTION OF WHETHER DISCRIMINATION BETWEEN CITIZENS
ON THE BASIS OF THEIR RACIAL DESCENT, AS REVEALED IN THIS CASE, IS
JUSTIFIABLE.  HERE WE START WITH THE PROPOSITION THAT ONLY THE MOST
EXCEPTIONAL CIRCUMSTANCES CAN EXCUSE DISCRIMINATION ON THAT BASIS IN
THE FACE OF THE EQUAL PROTECTION CLAUSE AND A FEDERAL STATUTE GIVING
ALL CITIZENS THE RIGHT TO OWN LAND.  FN28  IN HIRABAYASHI V. UNITED
STATES, THIS COURT SUSTAINED A WAR MEASURE WHICH INVOLVED RESTRICTIONS
AGAINST CITIZENS OF JAPANESE DESCENT.  BUT THE COURT RECOGNIZED THAT,
AS A GENERAL RULE, "DISTINCTIONS BETWEEN CITIZENS SOLELY BECAUSE OF
THEIR ANCESTRY ARE BY THEIR VERY NATURE ODIOUS TO A FREE PEOPLE WHOSE
INSTITUTIONS ARE FOUNDED UPON THE DOCTRINE OF EQUALITY."  320 U.S. 81,
100(1943). 

THE ONLY JUSTIFICATION URGED UPON US BY THE STATE IS THAT THE
DISCRIMINATION IS NECESSARY TO PREVENT EVASION OF THE ALIEN LAND LAW'S
PROHIBITION AGAINST THE OWNERSHIP OF AGRICULTURAL LAND BY INELIGIBLE
ALIENS.  THIS REASONING PRESUPPOSES THE VALIDITY OF THAT PROHIBITION, A
PREMISE WHICH WE DEEM IT UNNECESSARY AND THEREFORE INAPPROPRIATE TO
REEXAMINE IN THIS CASE.  BUT ASSUMING, FOR PURPOSES OF ARGUMENT ONLY,
THAT THE BASIC PROHIBITION IS CONSTITUTIONAL, IT DOES NOT FOLLOW THAT
THERE IS NO CONSTITUTIONAL LIMIT TO THE MEANS WHICH MAY BE USED TO
ENFORCE IT.  IN THE LIGHT MOST FAVORABLE TO THE STATE, THIS CASE
PRESENTS A CONFLICT BETWEEN THE STATE'S RIGHT TO FORMULATE A POLICY OF
LANDHOLDING WITHIN ITS BOUNDS AND THE RIGHT OF AMERICAN CITIZENS TO OWN
LAND ANYWHERE IN THE UNITED STATES.  WHEN THESE TWO RIGHTS CLASH, THE
RIGHTS OF A CITIZEN MAY NOT BE SUBORDINATED MERELY BECAUSE OF HIS
FATHER'S COUNTRY OF ORIGIN. 

SINCE THE VIEW WE TAKE OF PETITIONERS' FIRST CONTENTION REQUIRES
REVERSAL OF THE DECISION BELOW, WE DO NOT REACH THEIR OTHER
CONTENTIONS:  THAT THE ALIEN LAND LAW DENIES INELIGIBLE ALIENS THE
EQUAL PROTECTION OF THE LAWS, AND THAT FAILURE TO APPLY ANY LIMITATIONS
PERIOD TO ESCHEAT ACTIONS UNDER THAT LAW TAKES PROPERTY WITHOUT DUE
PROCESS OF LAW.  REVERSED. 

FN1  1 CAL. GEN. LAWS, ACT 261(DEERING 1944, 1945 SUPP.). 

FN2  29 CAL.2D 164, 173 P.2D 794(1946). 

FN3  AT THE TIME THE ALIEN LAND LAW WAS ADOPTED THE RIGHT TO BE
NATURALIZED EXTENDED ONLY TO FREE WHITE PERSONS AND PERSONS OF AFRICAN
NATIVITY OR DESCENT.  IN 1940, DESCENDANTS OF RACES INDIGENOUS TO THE
WESTERN HEMISPHERE WERE ALSO MADE ELIGIBLE, 54 STAT. 1140; IN 1943
CHINESE WERE MADE ELIGIBLE, 57 STAT. 601; AND IN 1946 FILIPINOS AND
PERSONS OF RACES INDIGENOUS TO INDIA WERE MADE ELIGIBLE, 60 STAT. 416,
8 U.S.C.A. SEC. 703(1946 SUPP.).  WHILE IT IS NOT ALTOGETHER CLEAR
WHETHER THE STATUTE SHOULD BE INTERPRETED TO INCLUDE OR TO EXCLUDE
CERTAIN PEOPLES, SEE NOTE, 54 HARV. L. REV. 860, 864-5(1941), IT SEEMS
TO BE ACCEPTED THAT JAPANESE ARE AMONG THE FEW GROUPS NOT ELIGIBLE FOR
CITIZENSHIP. 

FN4  SEE PATTON V. MISSISSIPPI, 332 U.S. 463(1947); CHAMBERS V.
FLORIDA, 309 U.S. 227, 228-9(1940); NORRIS V. ALABAMA, 294 U.S. 587,
590(1935). 

FN5  SECS. 1 AND 2. 

FN6  SEC. 7. 

FN7  SEC. 9. 

FN8  SEC. 9(A). 

FN9  SECS. 4 AND 5.  THIS WAS THE HOLDING OF THE STATE COURTS. 
PETITIONERS ARGUE THAT UNTIL 1943 THERE WAS SOME DOUBT AS TO WHETHER
REPORTS WERE REQUIRED.  SEE NOTE 23, INFRA. 

FN10  SEC. 9(A) OF THE ALIEN LAND LAW. 

FN11  THE JUDGE STATED THAT IN THE ABSENCE OF A STRONG REASON PEOPLE
JUST DO NOT TAKE TITLE TO REAL ESTATE IN THE NAME OF THEIR SEVEN-YEAR
OLD CHILDREN - THEREBY PUTTING IT BEYOND THE POWER OF THE PARENTS TO
DEAL WITH IT DIRECTLY, TO DEED IT AWAY, TO BORROW MONEY ON IT AND TO
MAKE FREE DISPOSITION OF IT. 

FN12  THIS CONCLUSION WAS BASED IN LARGE MEASURE ON A SERIES OF CASES
DECIDED WITHIN A WEEK OF EACH OTHER IN 1923:  TERRACE V. THOMPSON, 263
U.S. 197; PORTERFIELD V. WEBB, 263 U.S. 225; WEBB V. O'BRIEN, 263 U.S.
313; AND FRICK V. WEBB, 263 U.S. 326. 

FN13  "ALL CITIZENS OF THE UNITED STATES SHALL HAVE THE SAME RIGHT,
IN EVERY STATE AND TERRITORY, AS IS ENJOYED BY WHITE CITIZENS THEREOF
TO INHERIT, PURCHASE, LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL
PROPERTY."  R.S. SEC. 1978, 8 U.S.C. SEC. 42. 

FN14  THE STATE IN ITS BRIEF CONCEDES THAT THIS IS SO.  SEE ALSO
ESTATE OF YANO, 188 CAL. 645, 649, 206 PAC. 995, 998(1922); PEOPLE V.
FUJITA, 215 CAL. 166, 169, 8 P.2D 1011, 1012(1932). 

FN15  THE STATE ALSO CONCEDES THE ACCURACY OF THIS PROPOSITION.  SEE
ALSO PEOPLE V. FUJITA, SUPRA NOTE 14. 

FN16  A STATUTE OF GENERAL APPLICABILITY REQUIRES THAT PARENTS BE
GIVEN PREFERENCE IN THE APPOINTMENT OF A MINOR'S GUARDIAN.  CAL. PROB. 
CODE ANN. SEC. 1407. 

INELIGIBLE ALIEN FROM BECOMING THE GUARDIAN OF THAT PART OF HIS CHILD'S
ESTATE WHICH CONSISTED OF AGRICULTURAL LAND.  CAL. STATS. 1921, P.
LXXXIII.  THIS SECTION WAS HELD UNCONSTITUTIONAL IN ESTATE OF YANO,
SUPRA NOTE 14. 

FN17  SEE DEGREAYER V. SUPERIOR COURT, 117 CAL. 640, 49 PAC.
983(1897). 

FN18  GOMEZ V. CECENA, 15 CAL.2D 363, 101 P.2D 477(1940); QUINN V.
REILLY, 198 CAL. 465, 245 PAC. 1091(1926); RUSS V. MEBIUS, 16 CAL.
350(1860); CF. LEZINSKY V. MASON MALT WHISKEY DISTILLING CO., 185 CAL.
240, 250, 196 PAC. 884, 889(1921); HAMILTON V. HUBBARD, 134 CAL. 603,
605, 65 PAC. 321, 322(1901). 

FN19  PEOPLE V. FUJITA, 215 CAL. 166, 169, 8 P.2D 1011, 1012(1932);
ESTATE OF YANO, 188 CAL. 645, 649, 206 PAC. 995, 998(1922); CF. TURNER
V. TURNER, 173 CAL. 782, 786, 161 PAC. 980, 982(1916). 

FN20  PEOPLE V. FUJITA AND ESTATE OF YANO, BOTH SUPRA NOTE 19;
DELEVILLAIN V. EVANS, 39 CAL. 120, 123(1870). 

FN21  IT IS INTERESTING TO NOTE THAT IN TWO PREVIOUS CASES THE
CALIFORNIA SUPREME COURT HAS EXPLICITLY STATED THAT WHERE ALIENS ARE
PROHIBITED FROM HOLDING LANDS, AN IMPLIED TRUST BY OPERATION OF LAW
WILL NOT ARISE IN THEIR FAVOR.  ESTATE OF YANO AND PEOPLE V. FUJITA,
BOTH SUPRA, NOTE 19.  BOTH CASES WERE DECIDED BEFORE PURCHASE OF EITHER
OF THE PARCELS INVOLVED IN THIS CASE AND AT THE TIME OF THE PURCHASE
APPARENTLY REPRESENTED THE ESTABLISHED STATE LAW. 

FN22  WHILE RELYING TO SOME EXTENT ON THIS INFERENCE THE TRIAL COURT
INDICATED THAT IT DID NOT CONSIDER IT A STRONG ONE "BECAUSE SOMETIMES
PEOPLE WHO ARE NOT INFORMED AS TO THE REQUIREMENTS OF THE LAW IN
CONNECTION WITH THOSE MATTERS SIMPLY FAIL TO DO THE THING THAT THE LAW
REQUIRES." 

FN23  SECTION 4 OF THE ALIEN LAND LAW, AS AMENDED IN 1920, PROHIBITED
INELIGIBLE ALIENS FROM BECOMING GUARDIANS OF AGRICULTURAL LAND OWNED BY
THEIR MINOR CHILDREN, CAL. STATS. 1921, P. LXXXIII, WHILE SEC. 5
REQUIRED CERTAIN REPORTS OF PERSONS WHO COULD AND DID BECOME GUARDIANS
OF SUCH LAND - I.E., PERSONS OTHER THAN THE PARENTS.  SECTION 4 WAS
HELD INVALID IN 1922 IN ESTATE OF YANO, SUPRA NOTE 21, AND WAS NOT
REPLACED UNTIL 1943, WHEN THERE WAS ENACTED A NEW SEC. 4 ENUNCIATING
REQUIREMENTS FOR INELIGIBLE ALIEN GUARDIANS.  SECTION 5 HAS REMAINED ON
THE BOOKS CONTINUOUSLY. 

PETITIONERS ARGUE THAT THERE MAY HAVE BEEN AT LEAST A JUSTIFIABLE
BELIEF ON THE PART OF INELIGIBLE ALIENS SUCH AS KAJIRO OYAMA THAT THEY
WERE NOT REQUIRED TO FILE GUARDIANSHIP REPORTS UNTIL 1943.  AS
INFERENTIAL CORROBORATION OF THIS VIEW, THEY POINT TO THE FAILURE OF
BOTH THE GUARDIANSHIP COURT AND THE DISTRICT ATTORNEY TO TAKE ACTION
AGAINST KAJIRO OYAMA UNDER SEC. 5 BETWEEN 1935 AND 1943. 

FN24  IF, AS THE STATE CONTENDS, SEC. 5 OF THE ACT REQUIRED KAJIRO
OYAMA TO FILE ANNUAL REPORTS, THE SAME SECTION SET AS THE PENALTY FOR
VIOLATION A FINE UP TO $1,000 AND IMPRISONMENT UP TO A YEAR.  OTHER
STATUTES OF GENERAL APPLICABILITY SUBJECT GUARDIANS TO THE LAW OF
TRUSTS AND AUTHORIZE THE COURT TO REMOVE A GUARDIAN FOR MISMANAGEMENT
OR FAILURE TO RENDER ACCOUNTS.  CAL. PROB.  CODE SECS. 1400, 1580. 
FURTHERMORE, SINCE 1943 THE STATUTE HAS PROVIDED THAT BREACH OF SEC. 4
MAY SUBJECT THE GUARDIAN TO A MAXIMUM OF 10 YEARS' IMPRISONMENT AND A
$5,000 FINE. 

FN25  CAL. CIVIL CODE SEC. 853. 

FN26  SEE NOTE 18 SUPRA. 

FN27  IN THE COCKRILL CASE THE INELIGIBLE ALIEN, ONE IKADA, FIRST
ATTEMPTED TO PURCHASE THE LAND IN HIS OWN NAME.  WHEN THE SELLER
QUESTIONED THE LEGALITY OF THE TRANSFER, IT WAS ARRANGED FOR TITLE TO
BE PUT IN THE NAME OF COCKRILL, IKADA'S ATTORNEY.  THAT WAS DONE, AND
IMMEDIATELY ON EXECUTION OF THE CONTRACT OF SALE, IKADA HIMSELF ENTERED
INTO POSSESSION.  THERE WAS SOME EVIDENCE THAT THE LAND WAS PURCHASED
AND WAS BEING HELD FOR IKADA'S AMERICAN-BORN CHILDREN, BUT A JURY FOUND
IKADA AND COCKRILL GUILTY OF CONSPIRACY TO VIOLATE THE ALIEN LAND LAW. 
IN AFFIRMING, THE CALIFORNIA APPELLATE COURT POINTED OUT THAT NO MOVE
HAD BEEN MADE TOWARD HAVING A GUARDIAN APPOINTED FOR THE CHILDREN.  62
CAL. APP. 22, 45, 216 PAC. 78, 88.  BEFORE THIS COURT IKADA AND
COCKRILL ARGUED THAT THE STATUTORY PRESUMPTION DENIED EQUAL PROTECTION
TO THE JAPANESE, NOT TO THE DONEE AS IN THE PRESENT CASE. 

SINCE WE DO NOT REACH PETITIONERS' SECOND ARGUMENT, THAT IT IS
UNCONSTITUTIONAL FOR A STATE TO FORBID THE OWNERSHIP OF LAND BY AN
INELIGIBLE ALIEN, WE DO NOT THINK IT APPROPRIATE TO REEXAMINE EITHER
THE CASES CITED IN NOTE 12, SUPRA, OR THE NECESSARY IMPLICATION IN THE
COCKRILL CASE THAT THE BASIC PROHIBITION OF THE ALIEN LAND LAW IS
VALID. 

FN28  SEE NOTE 13 SUPRA. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AGREES, CONCURRING. 

I CONCUR IN THE COURT'S JUDGMENT AND ITS OPINION.  BUT I SHOULD
PREFER TO REVERSE THE JUDGMENT ON THE BROADER GROUNDS THAT THE BASIC
PROVISIONS OF THE CALIFORNIA ALIEN LAND LAW VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND CONFLICT WITH FEDERAL
LAWS AND TREATIES GOVERNING THE IMMIGRATION OF ALIENS AND THEIR RIGHTS
AFTER ARRIVAL IN THIS COUNTRY.  THE CALIFORNIA LAW IN ACTUAL EFFECT
SINGLES OUT ALIENS OF JAPANESE ANCESTRY, REQUIRES THE ESCHEAT OF ANY
REAL ESTATE THEY OWN, AND ITS LANGUAGE IS BROAD ENOUGH TO MAKE IT A
CRIMINAL OFFENSE, PUNISHABLE BY IMPRISONMENT UP TO TEN YEARS, FOR THEM
TO ACQUIRE, ENJOY, USE, POSSESS, CULTIVATE, OCCUPY, OR TRANSFER REAL
PROPERTY.  FN1  IT WOULD THEREFORE APPEAR TO BE A CRIME FOR AN ALIEN OF
JAPANESE ANCESTRY TO OWN A HOME IN CALIFORNIA, AT LEAST IF THE LAND
AROUND IT IS SUITABLE FOR CULTIVATION.  FN2  THIS IS TRUE ALTHOUGH THE
STATUTE DOES NOT NAME THE JAPANESE AS SUCH, AND ALTHOUGH ITS TERMS ALSO
APPLY TO A COMPARATIVELY SMALL NUMBER OF ALIENS FROM OTHER COUNTRIES. 
THAT THE EFFECT AND PURPOSE OF THE LAW IS TO DISCRIMINATE AGAINST
JAPANESE BECAUSE THEY ARE JAPANESE IS TOO PLAIN TO CALL FOR MORE THAN A
STATEMENT OF THAT WELL-KNOWN FACT. 

WE ARE TOLD, HOWEVER, THAT, DESPITE THE SWEEPING PROHIBITION AGAINST
JAPANESE OWNERSHIP OR OCCUPANCY, IT IS NO VIOLATION OF THE LAW FOR A
JAPANESE TO WORK ON LAND AS A HIRED HAND FOR AMERICAN CITIZENS OR FOR
FOREIGN NATIONALS PERMITTED TO OWN CALIFORNIA LANDS.  AND A JAPANESE
MAN OR WOMAN MAY ALSO USE OR OCCUPY LAND IF ACTING ONLY IN THE CAPACITY
OF A SERVANT.  IN OTHER WORDS, BY THIS ALIEN LAND LAW CALIFORNIA PUTS
ALL JAPANESE ALIENS WITHIN ITS BOUNDARIES ON THE LOWEST POSSIBLE
ECONOMIC LEVEL.  AND THIS LAND LAW HAS BEEN FOLLOWED BY ANOTHER WHICH
NOW BARS JAPANESE FROM THE FISHING INDUSTRY.  CAL. STATS. 1945, C. 181;
SEE TAKAHASHI V. FISH & GAME COMM'N, 30 CAL.2D 719, 185 P.2D 805.  IF
THERE IS ANY ONE PURPOSE OF THE FOURTEENTH AMENDMENT THAT IS WHOLLY
OUTSIDE THE REALM OF DOUBT, IT IS THAT THE AMENDMENT WAS DESIGNED TO
BAR STATES FROM DENYING TO SOME GROUPS, ON ACCOUNT OF THEIR RACE OR
COLOR, ANY RIGHTS, PRIVILEGES, AND OPPORTUNITIES ACCORDED TO OTHER
GROUPS.  I WOULD NOW OVERRULE THE PREVIOUS DECISIONS OF THIS COURT THAT
SUSTAINED STATE LAND LAWS WHICH DISCRIMINATE AGAINST PEOPLE OF JAPANESE
ORIGIN RESIDING IN THIS COUNTRY.  FN3    CONGRESS HAS PROVIDED STRICT
IMMIGRATION TESTS AND QUOTAS.  IT HAS ALSO ENACTED LAWS TO REGULATE
ALIENS AFTER ADMISSION INTO THE COUNTRY.  OTHER STATUTES PROVIDE FOR
DEPORTATION OF ALIENS.  ALTHOUGH JAPANESE ARE NOT PERMITTED TO BECOME
CITIZENS BY THE ORDINARY PROCESS OF NATURALIZATION, STILL CONGRESS
PERMITTED THE ADMISSION OF SOME JAPANESE INTO THIS COUNTRY.  ALL OF
THIS MEANS THAT CONGRESS, IN THE EXERCISE OF ITS EXCLUSIVE POWER OVER
IMMIGRATION, TRUAX V. RAICH, 239 U.S. 33, 42, DECIDED THAT CERTAIN
JAPANESE, SUBJECT TO FEDERAL LAWS, MIGHT COME TO AND LIVE IN ANY ONE OF
THE STATES OF THE UNION.  THE SUPREME COURT OF CALIFORNIA HAS SAID THAT
ONE PURPOSE OF THAT STATE'S LAND LAW IS TO "DISCOURAGE THE COMING OF
JAPANESE INTO THIS STATE  ...  "  ESTATE OF YANO, 188 CAL. 645, 658,
206 P. 995, 1001.  CALIFORNIA SHOULD NOT BE PERMITTED TO ERECT
OBSTACLES DESIGNED TO PREVENT THE IMMIGRATION OF PEOPLE WHOM CONGRESS
HAS AUTHORIZED TO COME INTO AND REMAIN IN THE COUNTRY.  SEE HINES V.
DAVIDOWITZ, 312 U.S. 52, 68.  THERE ARE ADDITIONAL REASONS NOW WHY THAT
LAW STANDS AS AN OBSTACLE TO THE FREE ACCOMPLISHMENT OF OUR POLICY IN
THE INTERNATIONAL FIELD.  ONE OF THESE REASONS IS THAT WE HAVE RECENTLY
PLEDGED OURSELVES TO COOPERATE WITH THE UNITED NATIONS TO "PROMOTE  ...
UNIVERSAL RESPECT FOR, AND OBSERVANCE OF, HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS FOR ALL WITHOUT DISTINCTION AS TO RACE, SEX, LANGUAGE, OR
RELIGION."  FN4 HOW CAN THIS NATION BE FAITHFUL TO THIS INTERNATIONAL
PLEDGE IF STATE LAWS WHICH BAR LAND OWNERSHIP AND OCCUPANCY BY ALIENS
ON ACCOUNT OF RACE ARE PERMITTED TO BE ENFORCED? 

FN1  SECTION 10(A) OF THE ALIEN PROPERTY INITIATIVE ACT PROVIDES:
"ANY PERSON WHO VIOLATES ANY OF THE PROVISIONS OF THIS ACT SHALL BE
PUNISHABLE BY IMPRISONMENT IN THE COUNTY JAIL NOT TO EXCEED ONE YEAR OR
IN THE STATE PENITENTIARY NOT EXCEEDING 10 YEARS, OR BY A FINE NOT TO
EXCEED FIVE THOUSAND DOLLARS ($5,000) OR BOTH."  SECTION 2 OF THE ACT
PROVIDES THAT ALIENS INELIGIBLE FOR CITIZENSHIP "MAY ACQUIRE, POSSESS,
ENJOY, USE, CULTIVATE, OCCUPY AND TRANSFER REAL PROPERTY, OR ANY
INTEREST THEREIN" IN CALIFORNIA ONLY TO THE EXTENT ALLOWED BY TREATY
BETWEEN THE UNITED STATES AND THE NATION OF WHICH THE ALIEN IS A
CITIZEN. 

FN2  THE UNITED STATES-JAPANESE TREATY OF 1911, WHICH GUARANTEED
JAPANESE IN THIS COUNTRY THE RIGHT TO OWN AND LEASE LAND "FOR
RESIDENTIAL AND COMMERCIAL PURPOSES," 37 STAT. 1504, WAS ABROGATED
EFFECTIVE JANUARY 26, 1940.  DEPT. OF STATE BULL., JULY 29, 1939, P.
81.  SINCE THE ABROGATION OF THIS TREATY, IT IS DOUBTFUL WHETHER
JAPANESE ALIENS IN CALIFORNIA MAY OWN OR RENT A HOME OR A BUSINESS.  WE
ARE TOLD THAT A RECENT INTERMEDIATE COURT DECISION UPHOLDING THE RIGHT
OF JAPANESE ALIENS TO RENT A BUILDING FOR BUSINESS PURPOSES, PALMERO V.
STOCKTON THEATRES, 172 P.2D 103(1946), HAS BEEN APPEALED TO THE SUPREME
COURT OF CALIFORNIA. 

FN3  TERRACE V. THOMPSON, 263 U.S. 197; PORTERFIELD V. WEBB, 263 U.S.
225; WEBB V. O'BRIEN, 263 U.S. 313; FRICK V. WEBB, 263 U.S. 326. 

FN4  UNITED NATIONS CHARTER, ARTICLES 55C AND 56; 59 STAT. 1045,
1046(1945). 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE RUTLEDGE JOINS,
CONCURRING. 

TO ME THE CONTROLLING ISSUE IN THIS CASE IS WHETHER THE CALIFORNIA
ALIEN LAND LAW ON ITS FACE IS CONSISTENT WITH THE CONSTITUTION OF THE
UNITED STATES.  CAN A STATE PROHIBIT ALL ALIENS INELIGIBLE FOR AMERICAN
CITIZENSHIP FROM ACQUIRING, OWNING, OCCUPYING, ENJOYING, LEASING OR
TRANSFERRING AGRICULTURAL LAND?  DOES SUCH A PROHIBITION SQUARE WITH
THE LANGUAGE OF THE FOURTEENTH AMENDMENT THAT NO STATE SHALL "DENY TO
ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS"? 

THE NEGATIVE ANSWER TO THOSE QUERIES IS DICTATED BY THE
UNCOMPROMISING OPPOSITION OF THE CONSTITUTION TO RACISM, WHATEVER CLOAK
OR DISGUISE IT MAY ASSUME.  THE CALIFORNIA STATUTE IN QUESTION, AS I
VIEW IT, IS NOTHING MORE THAN AN OUTRIGHT RACIAL DISCRIMINATION.  AS
SUCH, IT DESERVES CONSTITUTIONAL CONDEMNATION.  AND SINCE THE VERY CORE
OF THE STATUTE IS SO DEFECTIVE, I CONSIDER IT NECESSARY TO GIVE VOICE
TO THAT FACT EVEN THOUGH I JOIN IN THE OPINION OF THE COURT. 

IN ITS ARGUMENT BEFORE US, CALIFORNIA HAS DISCLAIMED ANY IMPLICATION
THAT THE ALIEN LAND LAW IS RACIST IN ITS ORIGIN, PURPOSE OR EFFECT. 
REFERENCE IS MADE TO THE FACT THAT NOWHERE IN THE STATUTE IS THERE A
SINGLE MENTION OF RACE, COLOR, CREED OR PLACE OF BIRTH OR ALLEGIANCE AS
A DETERMINANT OF WHO MAY NOT OWN OR HOLD FARM LAND.  THE DISCRIMINATION
ESTABLISHED BY THE STATUTE IS SAID TO BE ENTIRELY INNOCENT OF THE USE
OF SUCH FACTORS, BEING GROUNDED SOLELY UPON THE REASONABLE DISTINCTIONS
CREATED BY CONGRESS IN ITS NATURALIZATION LAWS.  HOWEVER, AN
EXAMINATION OF THE CIRCUMSTANCES SURROUNDING THE ORIGINAL ENACTMENT OF
THIS LAW IN 1913, ITS REENACTMENT IN 1920 AND ITS SUBSEQUENT
APPLICATION REVEALS QUITE A DIFFERENT STORY.  FN1 

THE CALIFORNIA ALIEN LAND LAW WAS SPAWNED OF THE GREAT ANTI-ORIENTAL
VIRUS WHICH, AT AN EARLY DATE, INFECTED MANY PERSONS IN THAT STATE. 
THE HISTORY OF THIS ANTI-ORIENTAL AGITATION IS NOT ONE THAT DOES CREDIT
TO A NATION THAT PRIDES ITSELF, AT LEAST HISTORICALLY, ON BEING THE
FRIENDLY HAVEN OF THE TIRED AND THE OPPRESSED OF OTHER LANDS. 
BEGINNING IN 1850, WITH THE ARRIVAL OF SUBSTANTIAL NUMBERS OF CHINESE
IMMIGRANTS, RACIAL PREJUDICES AND DISCRIMINATIONS BEGAN TO MOUNT.  MUCH
OF THE OPPOSITION TO THESE CHINESE CAME FROM TRADE UNIONISTS, WHO
FEARED ECONOMIC COMPETITION, AND FROM POLITICIANS, WHO SOUGHT UNION
SUPPORT.  OTHER GROUPS ALSO SHARED IN THIS OPPOSITION.  VARIOUS LAWS
AND ORDINANCES WERE ENACTED FOR THE PURPOSE OF DISCOURAGING THE
IMMIGRANTS AND DRAMATIZING THE NATIVE DISSATISFACTION.  INDIVIDUAL
CHINESE WERE SUBJECTED TO MANY ACTS OF VIOLENCE.  EVENTUALLY, CONGRESS
RESPONDED TO THIS POPULAR AGITATION AND ADOPTED CHINESE EXCLUSION
LAWS. 

IT WAS NOT UNTIL 1900 THAT JAPANESE BEGAN TO ARRIVE IN CALIFORNIA IN
LARGE NUMBERS.  BY THAT TIME THE REPRESSIVE MEASURES DIRECTED AT THE
CHINESE HAD ACHIEVED MUCH OF THEIR DESIRED EFFECT; THE CHINESE
POPULATION HAD MATERIALLY DECREASED AND THE ANTIPATHY OF THE AMERICANS
WAS ON THE DECLINE.  BUT THE ARRIVAL OF THE JAPANESE FANNED ANEW THE
FLAMES OF ANTI-ORIENTAL PREJUDICE.  HISTORY THEN BEGAN TO REPEAT
ITSELF.  WHITE WORKERS RESENTED THE NEW INFLUX, A RESENTMENT WHICH
READILY LENT ITSELF TO POLITICAL EXPLOITATION.  DEMANDS WERE MADE THAT
JAPANESE IMMIGRATION BE LIMITED OR PROHIBITED ENTIRELY.  FN2  NUMEROUS
ACTS OF VIOLENCE WERE PERPETRATED AGAINST JAPANESE BUSINESSMEN AND
WORKERS, COMBINED WITH PRIVATE ECONOMIC SANCTIONS DESIGNED TO DRIVE
THEM OUT OF BUSINESS.  CHARGES OF ESPIONAGE, UNASSIMILATIVENESS,
CLANNISHNESS AND CORRUPTION OF YOUNG CHILDREN WERE MADE AGAINST THESE
"MONGOLIAN INVADERS."  CAMPAIGNS WERE ORGANIZED TO SECURE SEGREGATED
SCHOOLS AND TO PRESERVE "AMERICA FOR THE AMERICANS." 

INDEED, SO LOUD DID THIS ANTI-JAPANESE CLAMOR BECOME THAT THE
JAPANESE GOVERNMENT MADE FORMAL PROTESTS TO THE UNITED STATES. 
PRESIDENT THEODORE ROOSEVELT THEREUPON INVESTIGATED AND INTERVENED IN
THE CALIFORNIA SITUATION.  HE WAS ABLE TO SECURE A SLIGHT
AMELIORATION.  FURTHER NEGOTIATIONS WITH THE JAPANESE GOVERNMENT
RESULTED IN A SO-CALLED "GENTLEMEN'S AGREEMENT," WHEREBY THE JAPANESE
GOVERNMENT AGREED TO LIMIT PASSPORTS TO THE UNITED STATES TO
NONLABORERS AND TO OTHERS WHO HAD ALREADY ESTABLISHED CERTAIN BUSINESS
AND PERSONAL INTERESTS IN THIS COUNTRY.  FN3 

BUT THE AGITATION DID NOT DIE AND ANTI-JAPANESE MEASURES CONTINUED TO
BE PROPOSED IN WHOLESALE FASHION.  THE FIRST ANTI-JAPANESE LAND BILLS
WERE INTRODUCED IN THE CALIFORNIA LEGISLATURE IN 1907, BUT THE COMBINED
EFFORTS OF PRESIDENT ROOSEVELT AND GOVERNOR GILLETT PREVENTED THEIR
PASSAGE.  AT LEAST SEVENTEEN ANTI-JAPANESE BILLS WERE INTRODUCED IN THE
1909 SESSION, INCLUDING ANOTHER LAND BILL.  PRESIDENT ROOSEVELT AGAIN
INTERVENED.  THIS TIME HE SUCCEEDED IN HAVING THE LAND BILL AMENDED TO
APPLY TO ALL ALIENS, AS A RESULT OF WHICH THE BILL WAS DEFEATED; FN4
HE WAS ALSO INSTRUMENTAL IN PREVENTING THE PASSAGE OF A SCHOOL
SEGREGATION BILL.  THE FLOOD OF ANTI-JAPANESE PROPOSALS CONTINUED IN
THE 1911 SESSION, AT WHICH MORE THAN TWENTY SUCH MEASURES WERE
INTRODUCED.  AMONG THEM, OF COURSE, WAS STILL ANOTHER ALIEN LAND BILL. 
IT PROVIDED THAT "NO ALIEN WHO IS NOT ELIGIBLE TO CITIZENSHIP" SHOULD
HOLD REAL PROPERTY IN CALIFORNIA.  THE PROSPECTS FOR THE PASSAGE OF
THIS BILL SEEMED GOOD, FOR BY THIS TIME ALL POLITICAL PARTIES IN THE
STATE HAD ANTI-JAPANESE PLANKS IN THEIR PLATFORMS.  BUT PRESIDENTIAL
INTERVENTION WAS ONCE AGAIN SUCCESSFUL AND THE BILL DIED IN COMMITTEE. 
FN5 

IN 1913, HOWEVER, NOTHING COULD STOP THE PASSAGE OF THE ORIGINAL
VERSION OF WHAT IS NOW THE ALIEN LAND LAW.  FN6  THIS MEASURE, THOUGH
LIMITED TO AGRICULTURAL LANDS, REPRESENTED THE FIRST OFFICIAL ACT OF
DISCRIMINATION AIMED AT THE JAPANESE.  MANY JAPANESE WERE ENGAGED IN
AGRICULTURAL PURSUITS IN 1913 AND THEY CONSTITUTED A SUBSTANTIAL
SEGMENT OF THE CALIFORNIA FARM LABOR SUPPLY.  FROM 1900 TO 1910,
JAPANESE-CONTROLLED FARMS IN CALIFORNIA HAD INCREASED FROM 4,698 ACRES
TO 99,254 ACRES.  THE AGRICULTURAL SITUATION THUS OFFERED A FRUITFUL
TARGET FOR THE ANTI-JAPANESE FORCES, WHO HAD BEEN BALKED IN THEIR
ATTEMPTS TO SECURE A BAN ON ALL JAPANESE IMMIGRATION AND TO OUTLAW
JAPANESE ACQUISITION AND ENJOYMENT OF RESIDENTIAL AND COMMERCIAL
PROPERTY.  IN THIS NEW ENDEAVOR THEY WERE EMINENTLY SUCCESSFUL. 
SECRETARY OF STATE BRYAN, ACTING ON BEHALF OF PRESIDENT WILSON, MADE A
PERSONAL APPEARANCE IN CALIFORNIA TO PLEAD FOR CAUTION, BUT HIS REQUEST
WAS IGNORED AS THE LEGISLATORS VOTED OVERWHELMINGLY IN FAVOR OF THE
BILL.  THIS 1913 LAW DENIED "ALIENS INELIGIBLE TO CITIZENSHIP" THE
PRIVILEGE OF BUYING LAND FOR AGRICULTURAL PURPOSES IN CALIFORNIA, AND
ALLOWED THEM TO LEASE LAND FOR SUCH PURPOSES FOR NO MORE THAN THREE
YEARS.  THE MEASURE WAS SO DRAWN AS NOT TO BE INCONSISTENT WITH THE
JAPANESE-AMERICAN TREATY OF 1911, WHICH AUTHORIZED JAPANESE IN THIS
COUNTRY TO LEASE AND OCCUPY LAND FOR RESIDENTIAL AND COMMERCIAL
PURPOSES.  BUT SINCE THE TREATY MADE NO MENTION OF AGRICULTURAL LAND,
LEGISLATION ON THE MATTER BY CALIFORNIA DID NOT PRESENT A SQUARE
CONFLICT. 

THE PASSAGE OF THE LAW WAS AN INTERNATIONAL INCIDENT.  THE JAPANESE
GOVERNMENT MADE AN IMMEDIATE PROTEST ON THE GROUND THAT THE STATUTE WAS
AN INDICATION OF UNFRIENDLINESS TOWARDS ITS PEOPLE.  INDEED, THE
RESENTMENT WAS SO VIOLENT INSIDE JAPAN THAT DEMANDS WERE MADE THAT WAR
BE DECLARED AGAINST THE UNITED STATES.  ANTI-AMERICAN AGITATION GREW
RAPIDLY.  FN7  THE QUESTION WAS DISCUSSED AT LENGTH ON THE DIPLOMATIC
LEVEL.  IT WAS DECLARED BY THE JAPANESE MINISTER OF FOREIGN AFFAIRS
THAT THE STATUTE "IS ESSENTIALLY UNFAIR AND INVIDIOUSLY DISCRIMINATORY
AGAINST MY COUNTRYMEN, AND INCONSISTENT AS WELL WITH THE SENTIMENTS OF
AMITY AND GOOD NEIGHBORHOOD WHICH HAVE PRESIDED OVER THE RELATIONS
BETWEEN THE TWO COUNTRIES  ...  "  FN8  BUT THE MATTER WAS ALLOWED TO
LAPSE AS BOTH COUNTRIES BECAME INCREASINGLY OCCUPIED WITH THE
DEVELOPMENTS OF WORLD WAR I. 

THE INTENTION OF THOSE RESPONSIBLE FOR THE 1913 LAW WAS PLAIN.  THE
"JAPANESE MENACE" WAS TO BE DEALT WITH ON A RACIAL BASIS.  THE
IMMEDIATE PURPOSE, OF COURSE, WAS TO RESTRICT JAPANESE FARM
COMPETITION.  AS SUBSEQUENTLY STATED BY GOVERNOR STEPHENS OF
CALIFORNIA, "IN 1913 THE LEGISLATURE OF THIS STATE PASSED A STATUTE
FORBIDDING THE OWNERSHIP OF AGRICULTURAL LANDS BY JAPANESE AND LIMITING
THEIR TENURE TO THREE-YEAR LEASEHOLDS.  IT WAS THE HOPE AT THAT TIME
THAT THE ENACTMENT OF THIS STATUTE MIGHT PUT A STOP TO THE
ENCROACHMENTS OF THE JAPANESE AGRICULTURIST."  N9 ACTUALLY, HOWEVER,
THE LAW HAD LITTLE EFFECT ON THE FARM SITUATION.  IT FAILED TO PROHIBIT
THE ACQUISTION OF FARMS IN THE FUTURE OR TO DIVEST ANY EXISTING
HOLDINGS; AND THERE WAS NO LIMITATION ON THE RENEWAL OF LEASES.  THE
JAPANESE FARM POPULATION REMAINED LARGELY INTACT. 

THE MORE BASIC PURPOSE OF THE STATUTE WAS TO IRRITATE THE JAPANESE,
TO MAKE ECONOMIC LIFE IN CALIFORNIA AS UNCOMFORTABLE AND UNPROFITABLE
FOR THEM AS LEGALLY POSSIBLE.  IT WAS THUS BUT A STEP IN THE LONG
CAMPAIGN TO DISCOURAGE THE JAPANESE FROM ENTERING CALIFORNIA AND TO
DRIVE OUT THOSE WHO WERE ALREADY THERE.  THE SUPREME COURT OF
CALIFORNIA ADMITTED AS MUCH IN ITS STATEMENT THAT THE ALIEN LAND LAW
WAS FRAMED SO AS "TO DISCOURAGE THE COMING OF JAPANESE INTO THIS
STATE."  ESTATE OF TETSUBUMI YANO, 188 CAL. 645, 658, 206 P. 995,
1001.  EVEN MORE CANDID WAS THE DECLARATION IN 1913 BY ULYSSES S. WEBB,
ONE OF THE AUTHORS OF THE LAW AND AN ATTORNEY GENERAL OF CALIFORNIA. 
HE STATED:  "THE FUNDAMENTAL BASIS OF ALL LEGISLATION UPON THIS
SUBJECT, STATE AND FEDERAL, HAS BEEN, AND IS, RACE UNDESIRABILITY.  IT
IS UNIMPORTANT AND FOREIGN TO THE QUESTION UNDER DISCUSSION WHETHER A
PARTICULAR RACE IS INFERIOR.  THE SIMPLE AND SINGLE QUESTION IS, IS THE
RACE DESIRABLE  ...  IT (THE ALIEN LAND LAW) SEEKS TO LIMIT THEIR
PRESENCE BY CURTAILING THEIR PRIVILEGES WHICH THEY MAY ENJOY HERE; FOR
THEY WILL NOT COME IN LARGE NUMBERS AND LONG ABIDE WITH US IF THEY MAY
NOT ACQUIRE LAND.  AND IT SEEKS TO LIMIT THE NUMBERS WHO WILL COME BY
LIMITING THE OPPORTUNITIES FOR THEIR ACTIVITY HERE WHEN THEY ARRIVE." 
FN10    FURTHER EVIDENCE OF THE RACIAL PREJUDICE UNDERLYING THE ALIEN
LAND LAW IS TO BE FOUND IN THE EVENTS RELATING TO THE REENACTMENT AND
STRENGTHENING OF THE STATUTE BY POPULAR INITIATIVE IN 1920.  MORE
SEVERE AND EFFECTIVE THAN THE 1913 LAW, THE INITIATIVE MEASURE
PROHIBITED INELIGIBLE ALIENS FROM LEASING LAND FOR AGRICULTURAL
PURPOSES; AND IT PLUGGED VARIOUS OTHER LOOPHOLES IN THE EARLIER
PROVISIONS.  A SPIRITED CAMPAIGN WAS WAGED TO SECURE POPULAR APPROVAL,
A CAMPAIGN WITH A BITTER ANTI-JAPANESE FLAVOR.  ALL THE PROPAGANDA
DEVICES THEN KNOWN - NEWSPAPERS, SPEECHES, FILMS, PAMPHLETS, LEAFLETS,
BILLBOARDS, AND THE LIKE - WERE UTILIZED TO SPREAD THE ANTI-JAPANESE
POISON.  FN11  THE JAPANESE WERE DEPICTED AS DEGENERATE MONGRELS AND
THE VOTERS WERE URGED TO SAVE "CALIFORNIA - THE WHITE MAN'S PARADISE"
FROM THE "YELLOW PERIL," WHICH HAD SOMEWHAT LAPSED IN THE PUBLIC MIND
SINCE 1913.  CLAIMS WERE MADE THAT THE BIRTH RATE OF THE JAPANESE WAS
SO HIGH THAT THE WHITE PEOPLE WOULD EVENTUALLY BE REPLACED AND DIRE
WARNINGS WERE MADE THAT THE LOW STANDARD OF LIVING OF THE JAPANESE
ENDANGERED THE ECONOMIC AND SOCIAL HEALTH OF THE COMMUNITY.  OPPONENTS
OF THE INITIATIVE MEASURE WERE LABELED "JAPLOVERS."  THE FIRES OF
RACIAL ANIMOSITY WERE THUS REKINDLED AND THE FLAMES ROSE TO NEW
HEIGHTS. 

IN A PAMPHLET OFFICIALLY MAILED TO ALL VOTERS PRIOR TO THE ELECTION,
THEY WERE TOLD THAT THE PRIMARY PURPOSE OF THE NEW MEASURE WAS "TO
PROHIBIT ORIENTALS WHO CANNOT BECOME AMERICAN CITIZENS FROM CONTROLLING
OUR RICH AGRICULTURAL LANDS  ...  ORIENTALS, AND MORE PARTICULARLY
JAPANESE, (HAVE) COMMENCED TO SECURE CONTROL OF AGRICULTURAL LANDS IN
CALIFORNIA  ...  "  FN12  THE ARGUMENTS IN THE PAMPHLET IN SUPPORT OF
THE MEASURE WERE REPEATEDLY DIRECTED AGAINST THE JAPANESE ALONE,
WITHOUT REFERENCE TO OTHER ORIENTALS OR TO OTHERS WHO WERE INELIGIBLE
FOR AMERICAN CITIZENSHIP.  IN THIS ATMOSPHERE HEAVY WITH RACE HATRED,
THE VOTERS GAVE DECISIVE APPROVAL TO THE PROPOSAL, 668,483 TO 222,086,
THOUGH THE MAJORITY CONSTITUTED LESS THAN HALF OF THE TOTAL
ELECTORATE.  BUT SO VIRULENT HAD BEEN THE CAMPAIGN AND SO DEEP HAD BEEN
THE NATURAL RESENTMENT IN JAPAN THAT ONCE AGAIN THE THREAT OF WAR
APPEARED ON THE HORIZON, ONLY TO DIE IN THE RUSH OF OTHER EVENTS. 

IT IS TRUE THAT THE ALIEN LAND LAW, IN ITS ORIGINAL AND AMENDED FORM,
FAILS TO MENTION JAPANESE ALIENS BY NAME.  SOME OF THE PROPOSALS
PRECEDING THE ADOPTION OF THE ORIGINAL MEASURE IN 1913 HAD IN FACT MADE
SPECIFIC REFERENCE TO JAPANESE ALIENS.  BUT THE EXPANSION OF THE
DISCRIMINATION TO INCLUDE ALL ALIENS INELIGIBLE FOR CITIZENSHIP DID NOT
INDICATE ANY RETREAT FROM THE AVOWED ANTI-JAPANESE PURPOSE.  ADOPTION
OF THE CONGRESSIONAL STANDARD OF INELIGIBILITY FOR CITIZENSHIP WAS ONLY
AN INDIRECT, BUT NO LESS EFFECTIVE, MEANS OF ACHIEVING THE DESIRED
END.  THE FEDERAL LEGISLATION AT ALL PERTINENT TIMES HAS BEEN SO DRAWN
AS TO EXCLUDE JAPANESE ALIENS FROM AMERICAN CITIZENSHIP.  FN13  THIS
COURT HAS SAID, IN REFERRING TO SUCH LEGISLATION, THAT "A PERSON OF THE
JAPANESE RACE, IF NOT BORN A CITIZEN, IS INELIGIBLE TO BECOME A
CITIZEN, I.E., TO BE NATURALIZED."  MORRISON V. CALIFORNIA, 291 U.S.
82, 85.  THE FRAMERS OF THE CALIFORNIA LAW WERE THEREFORE ABLE TO
UTILIZE THE FEDERAL STANDARD WITH FULL ASSURANCE THAT THE RESULT WOULD
BE TO EXCLUDE JAPANESE ALIENS FROM THE OWNERSHIP AND USE OF FARM LAND. 
CONGRESS SUPPLIED A READY-MADE VEHICLE FOR DISCRIMINATING AGAINST
JAPANESE ALIENS, A VEHICLE WHICH CALIFORNIA WAS PROMPT TO GRASP AND
EXPAND TO PURPOSES QUITE BEYOND THE SCOPE OR OBJECT OF THE
CONGRESSIONAL STATUTE. 

MOREOVER, THERE IS NOTHING TO INDICATE THAT THE PROPONENTS OF THE
CALIFORNIA LAW WERE AT ANY TIME CONCERNED WITH THE USE OR OWNERSHIP OF
FARM LAND BY INELIGIBLE ALIENS OTHER THAN THOSE OF JAPANESE ORIGIN. 
AMONG THOSE INELIGIBLE FOR CITIZENSHIP WHEN THE LAW WAS UNDER
CONSIDERATION WERE CHINESE ALIENS.  BUT THE CHINESE IN CALIFORNIA WERE
GENERALLY ENGAGED IN SMALL COMMERCIAL ENTERPRISES RATHER THAN IN
AGRICULTURAL OCCUPATIONS AND, IN ADDITION, WERE NOT CONSIDERED A MENACE
BECAUSE OF THE CHINESE EXCLUSION ACTS.  FN14  NO MENTION WAS MADE BY
THE STATUTE'S PROPONENTS OF THE HINDUS OR THE MALAY AND POLYNESIAN
ALIENS WHO WERE RESIDENT IN CALIFORNIA.  ALIENS OF THE LATTER TYPES
WERE SO NUMERICALLY INSIGNIFICANT AS TO AROUSE NO INTEREST OR
ANIMOSITY.  FN15  ONLY THE JAPANESE ALIENS PRESENTED THE REAL PROBLEM. 
IT WAS THEY, THE "YELLOW HORDE," WHO WERE THE OBJECT OF THE
LEGISLATION. 

THAT FACT HAS BEEN FURTHER DEMONSTRATED BY THE SUBSEQUENT ENFORCEMENT
OF THE ALIEN LAND LAW.  AT LEAST 79 ESCHEAT ACTIONS HAVE BEEN
INSTITUTED BY THE STATE SINCE THE STATUTE BECAME EFFECTIVE.  OF THESE
79 PROCEEDINGS, 4 INVOLVED HINDUS, 2 INVOLVED CHINESE AND THE REMAINING
73 INVOLVED JAPANESE.  FN16  CURIOUSLY ENOUGH, 59 OF THE 73 JAPANESE
CASES WERE BEGUN BY THE STATE SUBSEQUENT TO PEARL HARBOR, DURING THE
PERIOD WHEN THE HYSTERIA GENERATED BY WORLD WAR II MAGNIFIED THE
OPPORTUNITIES FOR EFFECTIVE ANTI-JAPANESE PROPAGANDA.  FN17  VIGOROUS
ENFORCEMENT OF THE ALIEN LAND LAW HAS BEEN BUT ONE OF THE CRUEL
DISCRIMINATORY ACTIONS WHICH HAVE MARKED THIS NATION'S TREATMENT SINCE
1941 OF THOSE RESIDENTS WHO CHANCED TO BE OF JAPANESE ORIGIN. 

THE ALIEN LAND LAW, IN SHORT, WAS DESIGNED TO EFFECTUATE A PURELY
RACIAL DISCRIMINATION, TO PROHIBIT A JAPANESE ALIEN FROM OWNING OR
USING AGRICULTURAL LAND SOLELY BECAUSE HE IS A JAPANESE ALIEN.  IT IS
ROOTED DEEPLY IN RACIAL, ECONOMIC AND SOCIAL ANTAGONISMS.  THE QUESTION
CONFRONTING US IS WHETHER SUCH A STATUTE, VIEWED AGAINST THE BACKGROUND
OF RACISM, CAN MOUNT THE HURDLE OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  CAN A STATE DISREGARD IN THIS MANNER THE
HISTORIC IDEAL THAT THOSE WITHIN THE BORDERS OF THIS NATION ARE NOT TO
BE DENIED RIGHTS AND PRIVILEGES BECAUSE THEY ARE OF A PARTICULAR RACE? 
I SAY THAT IT CANNOT. 

THE EQUAL PROTECTION CLAUSE IS TOO CLEAR TO ADMIT OF ANY OTHER
CONCLUSION.  IT PROVIDES THAT NO STATE SHALL "DENY TO ANY PERSON WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS."  THE WORDS "ANY
PERSON" HAVE SUFFICIENT SCOPE TO INCLUDE RESIDENT ALIENS, WHETHER
ELIGIBLE FOR CITIZENSHIP OR NOT.  YICK WO V. HOPKINS, 118 U.S. 356;
TRUAX V. RAICH, 239 U.S. 33.  HENCE JAPANESE ALIENS INELIGIBLE FOR
CITIZENSHIP MUST BE ACCORDED EQUAL PROTECTION.  AND THE LAWS AS TO
WHICH EQUAL PROTECTION MUST BE GIVEN CERTAINLY INCLUDE THOSE PROTECTING
THE RIGHT TO ENGAGE IN COMMON OCCUPATIONS LIKE FARMING, YICK WO V.
HOPKINS, SUPRA, AND THOSE PERTAINING TO THE USE AND OWNERSHIP OF
AGRICULTURAL LANDS, BUCHANAN V. WARLEY, 245 U.S. 60.  THE CONCEPT OF
EQUAL PROTECTION, HOWEVER, MAY IN RARE CASES PERMIT A STATE TO SINGLE
OUT A CLASS OF PERSONS, SUCH AS INELIGIBLE ALIENS, FOR DISTINCTIVE
TREATMENT.  THE CRUCIAL TEST IN THESE EXCEPTIONAL INSTANCES IS WHETHER
THERE IS A RATIONAL BASIS FOR THE PARTICULAR KIND OF DISCRIMINATION
INVOLVED.  ARE THE CHARACTERISTICS OF THE CLASS SUCH AS TO PROVIDE A
RATIONAL JUSTIFICATION FOR THE DIFFERENCE IN TREATMENT? 

SUCH A RATIONAL BASIS IS COMPLETELY LACKING WHERE, AS HERE, THE
DISCRIMINATION STEMS DIRECTLY FROM RACIAL HATRED AND INTOLERANCE.  THE
CONSTITUTION OF THE UNITED STATES, AS I READ IT, EMBODIES THE HIGHEST
POLITICAL IDEALS OF WHICH MAN IS CAPABLE.  IT INSISTS THAT OUR
GOVERNMENT, WHETHER STATE OR FEDERAL, SHALL RESPECT AND OBSERVE THE
DIGNITY OF EACH INDIVIDUAL, WHATEVER MAY BE THE NAME OF HIS RACE, THE
COLOR OF HIS SKIN OR THE NATURE OF HIS BELIEFS.  IT THUS RENDERS
IRRATIONAL, AS A JUSTIFICATION FOR DISCRIMINATION, THOSE FACTORS WHICH
REFLECT RACIAL ANIMOSITY.  YET THE HISTORY OF THE ALIEN LAND LAW SHOWS
BEYOND ALL DOUBT THAT FACTORS OF THAT NATURE MAKE UP THE FOUNDATION
UPON WHICH RESTS THE DISCRIMINATION ESTABLISHED THEREIN.  AND SUCH
FACTORS ARE AT ONCE EVIDENT WHEN THE LEGAL, SOCIAL AND ECONOMIC
CONSIDERATIONS ADVANCED IN SUPPORT OF THE DISCRIMINATION ARE SUBJECTED
TO RIGID SCRUTINY. 

FIRST.  IT IS SAID THAT THE RULE ESTABLISHED BY CONGRESS FOR
DETERMINING THOSE CLASSES OF ALIENS WHO MAY BECOME CITIZENS FURNISHES
IN AND OF ITSELF A REASONABLE BASIS FOR THE DISCRIMINATION INVOLVED IN
THE ALIEN LAND LAW. 

THE PROPOSITION THAT THE "PLENARY" POWER OF CONGRESS OVER
NATURALIZATION IS UNINHIBITED, EVEN BY THE CONSTITUTIONAL PROHIBITION
OF RACISM, IS ONE THAT IS OPEN TO GRAVE DOUBTS IN MY MIND.  FN18 RACISM
HAS NO JUSTIFIABLE PLACE WHATEVER IN OUR WAY OF LIFE, EVEN WHEN IT
APPEARS UNDER THE GUISE OF "PLENARY" POWER.  CF. CONCURRING OPINION IN
BRIDGES V. WIXON, 326 U.S. 135, 161-162.  BUT THE FACT REMAINS THAT
CONGRESS HAS MADE RACIAL DISTINCTIONS IN ESTABLISHING NATURALIZATION
STANDARDS.  AND THOSE DISTINCTIONS IN LARGE PART HAVE GROWN OUT OF THE
DEMANDS OF RACIALLY INTOLERANT GROUPS, INCLUDING MANY OF THOSE WHO WERE
AMONG THE FOREMOST PROPONENTS OF THE ALIEN LAND LAW.  YET IT DOES NOT
FOLLOW, EVEN IF WE ASSUME THAT CONGRESS WAS JUSTIFIED IN ADOPTING SUCH
RACIAL DISTINCTIONS, THAT CALIFORNIA CAN BLINDLY ADOPT THOSE
DISTINCTIONS FOR THE PURPOSE OF DETERMINING WHO MAY OWN AND ENJOY
AGRICULTURAL LAND.  WHAT MAY BE REASONABLE AND CONSTITUTIONAL FOR
CONGRESS FOR ONE PURPOSE MAY NOT BE REASONABLE OR CONSTITUTIONAL FOR A
STATE LEGISLATURE FOR ANOTHER AND WHOLLY DISTINCT PURPOSE.  OTHERWISE
THERE WOULD BE FEW PRACTICAL LIMITATIONS TO THE POWER OF A STATE TO
DISCRIMINATE AMONG THOSE WITHIN ITS JURISDICTION, THERE BEING A
PLETHORA OF FEDERAL CLASSIFICATIONS WHICH COULD BE COPIED.  FN19 

IN OTHER WORDS, IF A STATE WISHES TO BORROW A FEDERAL CLASSIFICATION,
IT MUST SEEK TO RATIONALIZE THE ADOPTED DISTINCTION IN THE NEW
SETTING.  IS THE DISTINCTION A REASONABLE ONE FOR THE PURPOSES FOR
WHICH THE STATE DESIRES TO USE IT?  TO THAT QUESTION IT IS NO ANSWER
THAT THE DISTINCTION WAS TAKEN FROM A FEDERAL STATUTE OR THAT THE
DISTINCTION MAY BE RATIONALIZED FOR THE PURPOSE FOR WHICH CONGRESS USED
IT.  THE STATE'S USE OF THE DISTINCTION MUST STAND OR FALL ON ITS OWN
MERITS.  AND IF IT APPEARS THAT THE EQUAL PROTECTION CLAUSE FORBIDS THE
STATE FROM USING THE DISTINCTION FOR THE DESIRED PURPOSE, THE FACT THAT
CONGRESS IS FREE TO ADOPT THE DISTINCTION IN SOME OTHER CONNECTION
GIVES THE STATE NO ADDITIONAL POWER TO ACT UPON IT.  THUS THE STATE
ACQUIRES NO POWER WHATEVER TO IMPOSE RACIAL DISCRIMINATIONS UPON
RESIDENT ALIENS FROM THE CONGRESSIONAL POWER TO EXCLUDE SOME OR ALL
ALIENS ON A RACIAL BASIS. 

SECOND.  IT IS SAID THAT ELIGIBILITY FOR AMERICAN CITIZENSHIP IS
INHERENTLY RELATED TO LOYAL ALLEGIANCE AND DESIRE TO WORK FOR THE
SUCCESS AND WELFARE OF THE STATE, WHICH HAS A VITAL INTEREST IN THE
FARM LANDS WITHIN ITS BORDERS.  HENCE IT MAY LIMIT THE OWNERSHIP AND
USE OF FARMS TO THOSE WHO ARE OR WHO MAY BECOME CITIZENS. 

SUCH A CLAIM IS OUTLAWED BY REALITY.  IN 1940 THERE WERE 4,741,971
ALIENS RESIDING IN THE CONTINENTAL UNITED STATES, OF WHOM 48,158 WERE
INELIGIBLE FOR NATURALIZATION.  FN20  MANY OF THESE INELIGIBLE ALIENS
HAVE LONG BEEN DOMICILED IN THIS COUNTRY.  THEY HAVE GONE INTO VARIOUS
BUSINESSES AND PROFESSIONS.  THEY HAVE ESTABLISHED HOMES AND REARED
CHILDREN, WHO HAVE THE STATUS OF AMERICAN CITIZENS BY VIRTUE OF THEIR
BIRTH IN THIS COUNTRY.  AND THEY HAVE ENTERED INTO THE SOCIAL AND
RELIGIOUS FABRICS OF THEIR COMMUNITIES.  SUCH INELIGIBLE ALIENS THUS
HAVE A VITAL INTEREST IN THE ECONOMIC, SOCIAL AND POLITICAL WELL-BEING
OF THE STATES IN WHICH THEY RESIDE AND THEIR LOYALTY HAS BEEN PROVED
MANY TIMES.  FN21  THE FACT THAT THEY ARE INELIGIBLE FOR CITIZENSHIP
DOES NOT, BY ITSELF, MAKE THEM INCAPABLE OF FORMING THESE TIES AND
INTERESTS.  NOR DOES THEIR INELIGIBILITY NECESSARILY PRECLUDE THEM FROM
POSSESSING THE LOYALTY AND ALLEGIANCE WHICH THE STATE RIGHTLY DESIRES. 

LOYALTY AND THE DESIRE TO WORK FOR THE WELFARE OF THE STATE, IN
SHORT, ARE INDIVIDUAL RATHER THAN GROUP CHARACTERISTICS.  AN INELIGIBLE
ALIEN MAY OR MAY NOT BE LOYAL; HE MAY OR MAY NOT WISH TO WORK FOR THE
SUCCESS AND WELFARE OF THE STATE OR NATION.  BUT THE SAME CAN BE SAID
OF AN ELIGIBLE ALIEN OR A NATURAL BORN CITIZEN.  IT IS THE ESSENCE OF
NAIVETE TO INSIST THAT THESE DESIRABLE CHARACTERISTICS ARE ALWAYS
LACKING IN A RACIALLY INELIGIBLE ALIEN, WHOSE INELIGIBILITY MAY BE
REMEDIED TOMORROW BY CONGRESS.  FN22  THESE ARE MATTERS WHICH DEPEND
UPON FACTORS FAR MORE SUBTLE AND PENETRATING THAN THE PREVAILING
NATURALIZATION STANDARDS.  AS THIS COURT HAS SAID, "LOYALTY IS A MATTER
OF THE HEART AND MIND, NOT OF RACE, CREED, OR COLOR."  EX PARTE ENDO,
323 U.S. 283, 302.  AND SO RACIAL ELIGIBILITY FOR CITIZENSHIP IS AN
IRRATIONAL BASIS FOR DETERMINING WHO IS LOYAL OR WHO DESIRES TO WORK
FOR THE WELFARE OF THE STATE. 

THIRD.  IT HAS BEEN SAID THAT IF INELIGIBLE ALIENS COULD LEASE OR OWN
FARMS, IT IS WITHIN THE REALM OF POSSIBILITY THAT THEY MIGHT ACQUIRE
EVERY FOOT OF LAND IN CALIFORNIA WHICH IS FIT FOR AGRICULTURE. 

IF WE ASSUME THAT IT IS WRONG FOR INELIGIBLE ALIENS TO OWN OR USE ALL
THE FARM LAND IN CALIFORNIA, SUCH A CONTENTION IS STATISTICALLY
ABSURD.  FN23  THE JAPANESE POPULATION IN CALIFORNIA, BOTH CITIZEN AND
ALIEN, HAS INCREASED FROM 41,356(MORE THAN ONE-TENTH OF THEM CITIZENS)
IN 1910 TO 71,952(ABOUT ONE-THIRD OF THEM CITIZENS) IN 1920 TO
93,717(ABOUT TWO-THIRDS OF THEM CITIZENS) IN 1940.  OF THE TOTAL FARMS
IN CALIFORNIA IN 1920, JAPANESE CITIZENS AND ALIENS CONTROLLED 4.4%,
COMPRISING 1.2% OF THE TOTAL ACREAGE.  IN 1930 THEY CONTROLLED 2.9% OF
THE FARMS, OR 0.6% OF THE ACREAGE.  AND IN 1940 THEY CONTROLLED 3.9% OF
THE FARMS, OR 0.7% OF THE ACREAGE.  SINCE WE ARE CONCERNED HERE ONLY
WITH THE JAPANESE ALIENS, THE PERCENTAGE OF THE FARMS AND ACREAGE
CONTROLLED BY THEM IS MATERIALLY LESS THAN THE FOREGOING FIGURES.  THUS
THE POSSIBILITY OF ALL THE CALIFORNIA FARM LAND FALLING UNDER THE
CONTROL OF JAPANESE ALIENS IS QUITE REMOTE, TO SAY THE LEAST. 
MOREOVER, THE NATURE OF THE JAPANESE ALIEN SEGMENT OF THE CALIFORNIA
POPULATION IS SIGNIFICANT.  IN 1940 THERE WERE 33,569 JAPANESE ALIENS
IN THAT STATE, BUT THE NUMBER IS NOW SMALLER, THE BEST ESTIMATE BEING
ABOUT 25,000.  FN24  THE 33,569 FIGURE REPRESENTS THOSE WHO ENTERED
BEFORE 1924, WHEN CONGRESS PROHIBITED FURTHER IMMIGRATION OF ALIENS
INELIGIBLE FOR CITIZENSHIP.  FN25  BY 1940, ALL BUT 2,760 OF THESE
INDIVIDUALS WERE 35 YEARS OF AGE OR OLDER.  MORE THAN HALF OF THEM WERE
50 YEARS OR MORE IN AGE.  THESE AGE FIGURES HAVE RISEN TO 43 AND 58
DURING THE PAST EIGHT YEARS AND DEATH IS BEGINNING TO TAKE A MORE RAPID
TOLL.  DEPORTATION, VOLUNTARY RETURN TO JAPAN AND DEPARTURE TO OTHER
STATES HAVE ALSO CONTRIBUTED TO THE DECLINE.  THE NUMBER OF THESE
ALIENS DECREASED 42% BETWEEN 1920 AND 1940 AND AN EVER-INCREASING LOSS
IS INEVITABLE. 

FURTHER DEDUCTIONS FROM THIS DECLINING TOTAL OF JAPANESE ALIENS MUST
BE MADE, FOR OUR PURPOSES, FOR MEN AND WOMEN WHO ARE ENGAGED IN NON
AGRICULTURAL ACTIVITIES.  IN 1940 ABOUT 58% OF THEM RESIDED IN URBAN
CENTERS OF 2,500 POPULATION OR MORE.  OUT OF 23,208 ALIEN JAPANESE,
FOURTEEN YEARS OF AGE OR OLDER, ONLY 10,512 WERE REPORTED AS ENGAGED IN
FARMING OCCUPATIONS.  WHILE THE ALIEN LAND LAW HAS UNDOUBTEDLY
DISCOURAGED SOME FROM BECOMING FARMERS, THE NUMBER WHO WOULD NORMALLY
BE NON-FARMERS REMAINS RELATIVELY SUBSTANTIAL.  THE FARMERS, ACTUAL AND
POTENTIAL, AMONG THIS DECLINING GROUP ARE NUMERICALLY MINUTE. 

ONE OTHER FACT SHOULD BE MENTIONED IN THIS CONNECTION.  "MANY OF
THESE AGED AND AGING JAPANESE ALIENS SUFFERED HEAVY PECUNIARY LOSSES
INCIDENT TO THEIR EVACUATION DURING THE WAR.  SUDDENLY ORDERED TO
ABANDON THEIR PROPERTIES AND THEIR HOMES, MANY FELT COMPELLED TO SELL
AT SACRIFICIAL PRICES.  OTHERS LOST THROUGH UNFAITHFUL CUSTODIANSHIP OF
THEIR PROPERTIES DURING THEIR ABSENCE.  CONFINED TO SO-CALLED
RELOCATION CENTERS, THEY WERE CUT OFF FOR NEARLY THREE YEARS FROM ANY
GAINFUL EMPLOYMENT.  THE RESULT IS THAT MANY OF THE WELL-TO-DO AMONG
THEM RETURNED TO CALIFORNIA BROKEN IN FORTUNE, WITH VERY FEW YEARS OF
LIFE LEFT FOR FINANCIAL RECUPERATION."  FN26 

SUCH IS THE NATURE OF THE GROUP TO WHOM CALIFORNIA WOULD DENY THE
RIGHT TO OWN AND OCCUPY AGRICULTURAL LAND.  THESE ELDERLY INDIVIDUALS,
WHO HAVE RESIDED IN THIS COUNTRY FOR AT LEAST TWENTY-THREE YEARS AND
WHO ARE CONSTANTLY SHRINKING IN NUMBER, ARE SAID TO CONSTITUTE A
MENACE, A "YELLOW PERIL," TO THE WELFARE OF CALIFORNIA.  THEY ARE SAID
TO BE ENCROACHING ON THE AGRICULTURAL INTERESTS OF AMERICAN CITIZENS. 
THEY ARE SAID TO THREATEN TO TAKE OVER ALL THE RICH FARM LAND OF
CALIFORNIA.  THEY ARE SAID TO BE SO EFFICIENT THAT AMERICANS CANNOT
COMPETE WITH THEM.  THEY ARE SAID TO BE SO DISLOYAL AND SO UNDESIROUS
OF WORKING FOR THE WELFARE OF THE STATE THAT THEY MUST BE DENIED THE
RIGHT TO EARN A LIVING BY FARMING.  THE MERE STATEMENT OF THESE
CONTENTIONS IN THE CONTEXT OF THE ACTUAL SITUATION IS ENOUGH TO
DEMONSTRATE THEIR SHALLOWNESS AND UNREALITY.  THE EXISTENCE OF A FEW
THOUSAND AGING RESIDENTS, POSSESSING NO RACIAL CHARACTERISTIC DANGEROUS
TO THE LEGITIMATE INTERESTS OF CALIFORNIA, CAN HARDLY JUSTIFY A RACIAL
DISCRIMINATION OF THE TYPE HERE INVOLVED. 

FOURTH.  IT IS STATED THAT JAPANESE ALIENS ARE SO EFFICIENT IN THEIR
FARMING OPERATIONS AND THAT THEIR LIVING STANDARD IS SO LOW THAT
AMERICAN FARMERS CANNOT COMPETE SUCCESSFULLY WITH THEM.  THEIR RIGHT TO
OWN AND USE FARM LANDS MUST THEREFORE BE DENIED IF ECONOMIC CONFLICTS
ARE TO BE AVOIDED. 

THAT JAPANESE IMMIGRANTS BROUGHT WITH THEM HIGHLY DEVELOPED
TECHNIQUES OF CULTIVATION IS NOT TO BE DENIED.  IN JAPAN THEY HAD
LEARNED TO OBTAIN THE HIGHEST POSSIBLE YIELD FROM EACH NARROW STRIP OF
SOIL.  AND THEY POSSESSED THE WILLINGNESS AND ABILITY TO PERFORM THE
GREAT AMOUNT OF LABOR NECESSARY FOR INTENSIVE FARMING.  WHEN THEY CAME
TO CALIFORNIA THEY PUT THEIR EFFICIENT METHODS INTO OPERATION.  THERE
THEY PIONEERED IN THE PRODUCTION OF VARIOUS CROPS AND RECLAIMED LARGE
AREAS, DEVELOPING SOME OF THE RICHEST AGRICULTURAL REGIONS IN THE
STATE.  IN PERFORMING THESE TASKS, HOWEVER, THE JAPANESE CAUSED NO
SUBSTANTIAL DISPLACEMENT OF AMERICAN FARMERS.  THE AREAS WHICH THEY
CULTIVATED WERE, FOR THE MOST PART, DESERTED OR UNDESIRED BY OTHERS. 
FN27 

BUT EVENTUALLY, THE JAPANESE CONCENTRATED ALL OF THEIR AGRICULTURAL
EFFORTS IN THE PRODUCTION OF VEGETABLES, SMALL FRUITS AND GREENHOUSE
PRODUCTS, EXPERIENCE HAVING SHOWN THAT THEY COULD NOT COMPETE
SUCCESSFULLY IN LARGER FARMING ENDEAVORS.  WITHIN THIS TRUCK-FARM
SPHERE, THE JAPANESE ACHIEVED A NEAR-MONOPOLY BY THEIR DILIGENCE AND
EFFICIENCY.  WHILE THEY HAD, AS WE HAVE SEEN, AN INFINITESIMAL
PROPORTION OF THE TOTAL FARM ACREAGE IN CALIFORNIA, THEIR 1941 TRUCK
CROPS COVERED 42% OF THE STATE'S ACREAGE DEVOTED TO SUCH PRODUCTION. 
FN28  IN LOS ANGELES COUNTY ALONE, THEY RAISED 64% OF THE TRUCK CROPS
FOR PROCESSING AND 87% OF THE VEGETABLES FOR FRESH MARKETING.  FN29
THIS CONCENTRATION OF EFFORT BY THE JAPANESE, MANY OF WHOM WERE NOT
ALIENS, NATURALLY GAVE STRONG COMPETITION TO OTHER PRODUCERS AND FORCED
SOME OF THEM OUT OF THE FIELD. 

THE SUCCESS THUS ACHIEVED THROUGH DILIGENCE AND EFFICIENCY, HOWEVER,
DOES NOT JUSTIFY PROHIBITING THE JAPANESE FROM OWNING OR USING FARM
LANDS.  FREE COMPETITION AND THE SURVIVAL OF THE FITTEST ARE SUPPOSEDLY
VITAL ELEMENTS IN THE AMERICAN ECONOMIC STRUCTURE.  AND THOSE WHO ARE
INJURED BY THE FAIR OPERATION OF SUCH ELEMENTS CAN MAKE NO LEGITIMATE
OBJECTION.  IT WOULD INDEED BE STRANGE IF EFFICIENCY IN AGRICULTURAL
PRODUCTION WERE TO BE CONSIDERED A RATIONAL BASIS FOR DENYING ONE THE
RIGHT TO ENGAGE IN THAT PRODUCTION.  CERTAINLY FROM A CONSTITUTIONAL
STANDPOINT, SUPERIORITY IN EFFICIENCY AND PRODUCTIVITY HAS NEVER BEEN
THOUGHT TO JUSTIFY DISCRIMINATION. 

COMPARATIVELY SPEAKING, THE STANDARD OF LIVING OF THE JAPANESE
IMMIGRANTS MAY HAVE BEEN LOW AT FIRST.  BUT THEY HAVE WORKED TO RAISE
THEIR STANDARD DESPITE SUCH OBSTACLES AS THE ALIEN LAND LAW.  LIKE MANY
OTHER FIRST-GENERATION IMMIGRANTS, THE JAPANESE WERE OFTEN FORCED TO
WORK LONG HOURS FOR LOW PAY.  YET NOTHING HAS INDICATED THAT, GIVEN A
FAIR OPPORTUNITY, THEY ARE INCAPABLE OF IMPROVING THEIR ECONOMIC
STATUS.  AT THE VERY LEAST, A LOW STANDARD OF LIVING IS HARDLY A
JUSTIFICATION FOR A STATUTE WHICH OPERATES TO KEEP THAT STANDARD LOW. 
SOMETHING MORE THAN ITS OWN BOOTSTRAPS IS NEEDED TO PULL SUCH A LAW UP
TO THE CONSTITUTIONAL LEVEL. 

FIFTH.  CLOSELY KNIT WITH THE FOREGOING ARE A HOST OF OTHER
CONTENTIONS WHICH MAKE NO PRETENSE AT CONCEALING RACIAL BIGOTRY AND
WHICH HAVE BEEN USED SO SUCCESSFULLY BY PROPONENTS AND SUPPORTERS OF
THE ALIEN LAND LAW.  THESE RELATE TO THE ALLEGED DISLOYALTY,
CLANNISHNESS, INABILITY TO ASSIMILATE, RACIAL INFERIORITY AND RACIAL
UNDESIRABILITY OF THE JAPANESE, WHETHER CITIZENS OR ALIENS.  THE
MISREPRESENTATIONS, HALF-TRUTHS AND DISTORTIONS WHICH MARK SUCH
CONTENTIONS HAVE BEEN EXPOSED MANY TIMES AND NEED NOT BE REPEATED
HERE.  SEE DISSENTING OPINION IN KOREMATSU V. UNITED STATES, 323 U.S.
214, 236-240.  SUFFICE IT TO SAY THAT FACTORS OF THIS TYPE FORM NO
RATIONAL BASIS FOR A STATUTORY DISCRIMINATION. 

UNQUESTIONABLY THERE WERE AND ARE CULTURAL, LINGUISTIC AND RACIAL
DIFFERENCES BETWEEN JAPANESE ALIENS AND NATIVE AMERICANS NOT OF
JAPANESE ORIGIN OR ANCESTRY.  FN30  THE PHYSICAL CHARACTERISTICS OF THE
JAPANESE, THEIR DIFFERENT CUSTOMS AND HABITS, THEIR PAST CONNECTIONS
WITH JAPAN, THEIR UNIQUE FAMILY RELATIONSHIPS, THEIR ORIENTAL RELIGION,
AND THEIR EXTREME EFFICIENCY ALL CONTRIBUTED TO THE SOCIAL AND ECONOMIC
CONFLICTS WHICH UNFORTUNATELY DEVELOPED.  BUT THE CRUCIAL MISTAKE THAT
WAS MADE, THE MISTAKE THAT MADE THE ATTITUDE OF MANY AMERICANS ONE OF
INTOLERANCE AND BIGOTRY, WAS THE QUICK ASSUMPTION THAT THESE
DIFFERENCES WERE ALL RACIAL AND UNCHANGEABLE.  FROM THAT MISTAKE IT WAS
AN EASY STEP TO CHARGE THAT THE JAPANESE RACE WAS UNDESIRABLE AND THAT
ALL JAPANESE PERSONS WERE UNASSIMILABLE.  AND FROM THAT MISTAKE FLOWED
THE MANY PROPOSALS TO DEAL WITH THE SOCIAL AND ECONOMIC CONFLICTS ON A
GROUP OR RACIAL BASIS.  IT WAS JUST SUCH A PROPOSAL THAT BECAME THE
ALIEN LAND LAW. 

HENCE THE BASIC VICE, THE CONSTITUTIONAL INFIRMITY, OF THE ALIEN LAND
LAW IS THAT ITS DISCRIMINATION RESTS UPON AN UNREAL RACIAL FOUNDATION. 
IT ASSUMES THAT THERE IS SOME RACIAL CHARACTERISTIC, COMMON TO ALL
JAPANESE ALIENS, THAT MAKES THEM UNFIT TO OWN OR USE AGRICULTURAL LAND
IN CALIFORNIA.  THERE IS NO SUCH CHARACTERISTIC.  NONE HAS EVEN BEEN
SUGGESTED.  THE ARGUMENTS IN SUPPORT OF THE STATUTE MAKE NO ATTEMPT
WHATEVER TO DISCOVER ANY TRUE RACIAL FACTOR.  THEY MERELY REPRESENT
SOCIAL AND ECONOMIC ANTAGONISMS WHICH HAVE BEEN TRANSLATED INTO FALSE
RACIAL TERMS.  AS SUCH, THEY CANNOT FORM THE RATIONALIZATION NECESSARY
TO CONFORM THE STATUTE TO THE REQUIREMENTS OF THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  ACCORDINGLY, I BELIEVE THAT THE
PRIOR DECISIONS OF THIS COURT GIVING SANCTION TO THIS ATTEMPT TO
LEGALIZE RACISM SHOULD BE OVERRULED.  FN31 

ADDED TO THIS CONSTITUTIONAL DEFECT, OF COURSE, IS THE FACT THAT THE
ALIEN LAND LAW FROM ITS INCEPTION HAS PROVED AN EMBARRASSMENT TO THE
UNITED STATES GOVERNMENT.  THIS STATUTE HAS BEEN MORE THAN A LOCAL
REGULATION OF INTERNAL AFFAIRS.  IT HAS OVERFLOWED INTO THE REALM OF
FOREIGN POLICY; IT HAS HAD DIRECT AND UNFORTUNATE CONSEQUENCES ON THIS
COUNTRY'S RELATIONS WITH JAPAN.  DRAWN ON A BACKGROUND OF RACIAL
ANIMOSITY, THE LAW WAS SO PATENT IN ITS DISCRIMINATION AGAINST JAPANESE
ALIENS AS TO CAUSE SERIOUS ANTAGONISM IN JAPAN, EVEN TO THE POINT OF
DEMANDS FOR WAR AGAINST THE UNITED STATES.  THE SITUATION WAS SO
FRAUGHT WITH DANGER THAT THREE PRESIDENTS OF THE UNITED STATES WERE
FORCED TO INTERVENE IN AN EFFORT TO PREVENT THE ALIEN LAND LAW FROM
COMING INTO EXISTENCE.  A SECRETARY OF STATE MADE A PERSONAL PLEA THAT
THE PASSAGE OF THE LAW MIGHT TURN JAPAN INTO AN UNFRIENDLY NATION. 
EVEN AFTER THE LAW BECAME EFFECTIVE, FEDERAL AUTHORITIES FEARED THAT
ENFORCEMENT OF ITS PROVISIONS MIGHT JEOPARDIZE OUR RELATIONS WITH
JAPAN.  THAT FEAR WAS IN LARGE PART RESPONSIBLE FOR THE SUBSTANTIAL NON
ENFORCEMENT OF THE STATUTE PRIOR TO WORLD WAR II.  BUT THE VERY
EXISTENCE OF THE LAW UNDOUBTEDLY HAS CAUSED MANY IN JAPAN TO BEAR ILL
FEELING TOWARD THIS COUNTRY, THUS MAKING FRIENDLY RELATIONS BETWEEN THE
TWO NATIONS THAT MUCH MORE DIFFICULT. 

MOREOVER, THIS NATION HAS RECENTLY PLEDGED ITSELF, THROUGH THE UNITED
NATIONS CHARTER, TO PROMOTE RESPECT FOR, AND OBSERVANCE OF, HUMAN
RIGHTS AND FUNDAMENTAL FREEDOMS FOR ALL WITHOUT DISTINCTION AS TO RACE,
SEX, LANGUAGE AND RELIGION.  THE ALIEN LAND LAW STANDS AS A BARRIER TO
THE FULFILLMENT OF THAT NATIONAL PLEDGE.  ITS INCONSISTENCY WITH THE
CHARTER, WHICH HAS BEEN DULY RATIFIED AND ADOPTED BY THE UNITED STATES,
IS BUT ONE MORE REASON WHY THE STATUTE MUST BE CONDEMNED. 

AND SO IN ORIGIN, PURPOSE, ADMINISTRATION AND EFFECT, THE ALIEN LAND
LAW DOES VIOLENCE TO THE HIGH IDEALS OF THE CONSTITUTION OF THE UNITED
STATES AND THE CHARTER OF THE UNITED NATIONS.  IT IS AN UNHAPPY
FACSIMILE, A DISHEARTENING REMINDER, OF THE RACIAL POLICY PURSUED BY
THOSE FORCES OF EVIL WHOSE DESTRUCTION RECENTLY NECESSITATED A
DEVASTATING WAR.  IT IS RACISM IN ONE OF ITS MOST MALIGNANT FORMS. 
FORTUNATELY, THE MAJORITY OF THE INHABITANTS OF THE UNITED STATES, AND
THE MAJORITY OF THOSE IN CALIFORNIA,  FN32  REJECT RACISM AND ALL OF
ITS IMPLICATIONS.  THEY RECOGNIZE THAT UNDER OUR CONSTITUTION ALL
PERSONS ARE ENTITLED TO THE EQUAL PROTECTION OF THE LAWS WITHOUT REGARD
TO THEIR RACIAL ANCESTRY.  HUMAN LIBERTY IS IN TOO GREAT A PERIL TODAY
TO WARRANT IGNORING THAT PRINCIPLE IN THIS CASE.  FOR THAT REASON I
BELIEVE THAT THE PENALTY OF UNCONSTITUTIONALITY SHOULD BE IMPOSED UPON
THE ALIEN LAND LAW. 

FN1  THE STORY IS A FAMILIAR ONE AND HAS BEEN TOLD MANY TIMES.  SEE
THE FOLLOWING SOURCES: 

TREATISES. - MILLIS, THE JAPANESE PROBLEM IN THE UNITED STATES
(1915); ICHIHASHI, JAPANESE IN THE UNITED STATES (1932); STRONG, THE
SECOND GENERATION JAPANESE PROBLEM (1934); MCWILLIAMS, PREJUDICE
(1944); KONVITZ, THE ALIEN AND THE ASIATIC IN AMERICAN LAW (1946), CH.
5. 

ARTICLES. - BUELL, "THE DEVELOPMENT OF ANTI-JAPANESE AGITATION IN THE
UNITED STATES," 37 POL.  SCI.  Q. 605, 38 ID. 57; BAILEY, "CALIFORNIA,
JAPAN, AND THE ALIEN LAND LEGISLATION OF 1913," 1 PAC. HIST. REV. 36;
MCGOVNEY, "THE ANTI-JAPANESE LAND LAWS OF CALIFORNIA AND TEN OTHER
STATES," 35 CALIF. L. REV. 7; FERGUSON, "THE CALIFORNIA ALIEN LAND LAW
AND THE FOURTEENTH AMENDMENT," 35 CALIF. L. REV. 61; COMMENT, 56 YALE
L.J. 1017. 

GOVERNMENT PUBLICATIONS.  - H.R. REP. NO. 2124, 77TH CONG., 2D SESS.;
U.S. DEPT. OF INTERIOR, W.R.A., PEOPLE IN MOTION:  THE POSTWAR
ADJUSTMENT OF THE EVACUATED JAPANESE AMERICANS (1947). 

FN2  "IN NOVEMBER OF 1904 THE AMERICAN FEDERATION OF LABOR, IN ANNUAL
CONVENTION IN SAN FRANCISCO, RESOLVED TO EXCLUDE JAPANESE AND KOREAN,
AS WELL AS CHINESE LABORERS.  THE SAN FRANCISCO CHRONICLE IN FEBRUARY
1905 BEGAN THE PUBLICATION OF A SERIES OF ARTICLES CAPTIONED: 'CRIME
AND POVERTY GO HAND IN HAND WITH ASIATIC LABOR,' 'BROWN MEN AN EVIL IN
THE PUBLIC SCHOOLS,' 'JAPANESE A MENACE TO AMERICAN WOMEN,' 'JAPS
THROTTLE PROGRESS IN THE RICH FRUIT SECTION.'  THE CAMPAIGN WAS
IMMEDIATELY EFFECTIVE.  IN EARLY MARCH THE CALIFORNIA LEGISLATURE,
FOLLOWED BY THE NEVADA LEGISLATURE, PASSED A RESOLUTION DEMANDING
IMMEDIATE ACTION TO LIMIT THE IMMIGRATION OF JAPANESE LABORERS.  AND IN
MAY 1905 THE ASIATIC EXCLUSION LEAGUE, ORIGINALLY THE JAPANESE AND
KOREAN EXCLUSION LEAGUE, WAS ORGANIZED IN SAN FRANCISCO  ... 

"THE AVOWED PURPOSE OF THE LEAGUE WAS TO PRESERVE NORTH AMERICA FOR
AMERICANS, BY PREVENTING OR MINIMIZING THE IMMIGRATION OF ASIATICS, WHO
WERE SAID TO BE UNASSIMILABLE, AND ILL-SUITED TO COMPLEMENT THE MACHINE
PROCESSES OF AMERICAN INDUSTRIAL LIFE.  THE LEAGUE DECLARED ITSELF IN
FAVOR OF SEGREGATION OF JAPANESE IN THE SCHOOLS AND A BOYCOTT AGAINST
JAPANESE WORKERS AND BUSINESSMEN.  IN CALIFORNIA ALONE, IT WAS CLAIMED
THAT MEMBERSHIP OF THE LEAGUE WAS 110,000 IN FEBRUARY OF 1908.  OF THE
238 AFFILIATED BODIES COMPOSING THE LEAGUE, 202 WERE LABOR UNIONS; THE
REST WERE FRATERNAL, CIVIC, BENEVOLENT, POLITICAL, AND MILITARY
SOCIETIES."  H.R. REP. NO. 2124, 77TH CONG., 2D SESS., PP. 72-73. 
FN3  SEE ICHIHASHI, JAPANESE IN THE UNITED STATES (1932), CH. XVI. 

FN4  DURING THE LEGISLATIVE DEBATE ON THIS BILL, ONE OF THE
ASSEMBLYMEN STATED:  "I WOULD RATHER EVERY FOOT OF CALIFORNIA WAS IN
ITS NATIVE WILDERNESS THAN TO BE CURSED BY THE FOOT OF THESE YELLOW
INVADERS, WHO ARE A CURSE TO THE COUNTRY, A MENACE TO OUR INSTITUTIONS,
AND DESTRUCTIVE OF EVERY PRINCIPLE OF AMERICANISM.  I WANT NO ALIENS,
WHITE, RED, BLACK OR YELLOW, TO OWN A FOOT OF LAND IN THE STATE OF
CALIFORNIA."  ANOTHER ASSEMBLYMAN SAID THAT HE INTENSELY AND
UNALTERABLY HATED THE JAPANESE, WHOM HE CHARACTERIZED AS "A BANDY
LEGGED BAGABOO, MISERABLE CRAVEN SIMIAN, DEGENERATED ROTTEN LITTLE
DEVIL."  FROM THE SAN FRANCISCO CHRONICLE, FEBRUARY 3, 1909, QUOTED IN
ICHIHASHI, JAPANESE IN THE UNITED STATES (1932), P. 262. 

FN5  ALSO OPPOSING THE BILL AT THIS TIME WAS THE PANAMA PACIFIC
EXPOSITION COMPANY AND ITS SUPPORTERS.  THEY DESIRED NOT TO ANTAGONIZE
JAPAN AND THUS JEOPARDIZE THE CHANCES OF JAPAN'S PARTICIPATION IN THE
EXPOSITION, WHICH WAS SOON TO BE HELD AT SAN FRANCISCO. 

FN6  "BY 1913 THE POLITICAL SITUATION WAS RIPE FOR THE PASSAGE OF AN.
ANTI-JAPANESE LAND LAW.  THE STATE ADMINISTRATION IN CALIFORNIA
REMAINED PROGRESSIVE REPUBLICAN WHILE THE NATIONAL ADMINISTRATION
BECAME DEMOCRATIC AND EXERCISED LESS INFLUENCE OVER THE STATE
LEGISLATURE.  THE EXPOSITION HAD PROGRESSED TO THE POINT WHERE THE
APPEAL FOR ITS SUCCESS WAS NO LONGER SUFFICIENTLY EFFECTIVE. 
OPPOSITION TO THE BILL CAME ONLY FROM A FEW RELATIVELY INEFFECTIVE
GROUPS."  FERGUSON, "THE CALIFORNIA ALIEN LAND LAW AND THE FOURTEENTH
AMENDMENT," 35 CALIF. L. REV. 61, 66. 

FN7  "THE LAND ACT COULD NOT HAVE BEEN PASSED AT A MORE INOPPORTUNE
TIME.  SHORTLY PRIOR TO ITS ADOPTION, THIS COUNTRY HAD AROUSED
CONSIDERABLE RESENTMENT IN JAPAN BY ITS RECOGNITION OF THE NEWLY
ESTABLISHED CHINESE REPUBLIC.  ...  FURTHERMORE THE LAND ACT WAS
PASSED, AS MR. A. M. POOLEY HAS POINTED OUT, 'SHORTLY AFTER THE TOKIO
MOB HAD SUCCEEDED IN SHATTERING THE THIRD KATSURA MINISTRY.'  PASSAGE
OF THE BILL OCCASIONED VIOLENT RESENTMENT IN JAPAN.  'REVELLING IN THE
RECENT DISCOVERY OF ITS POWER,' WRITES MR. POOLEY, 'THE MOB, INFLAMED
BY THE OPPOSITION, ENDEAVORED TO USE THE SAME METHODS TO FORCE A
SETTLEMENT OF THE CALIFORNIA QUESTION ON THE GOVERNMENT' THAT IT HAD
USED IN OUSTING THE KATSURA MINISTRY.  THROUGHOUT APRIL AND MAY, 1913,
THE JAPANESE PRESS ADOPTED A MOST THREATENING AND TRUCULENT TONE. 
CALIFORNIA NEWSPAPERS ON APRIL 18, 1913, CARRIED A DISPATCH FROM TOKYO
TO THE EFFECT THAT 'A DEMAND THAT JAPAN RESORT TO ARMS WAS HYSTERICALLY
CHEERED AT A MASS MEETING HERE TONIGHT TO PROTEST AGAINST THE ALIEN
LAND BILL NOW PENDING BEFORE THE CALIFORNIA LEGISLATURE.  TWENTY
THOUSAND PERSONS ASSEMBLED.' 

"'MORE UNFORTUNATE STILL,' OBSERVED MR. POOLEY, 'THE WAVE OF
EXCITEMENT GREW UNDER THE STIMULUS OF ANTI-AMERICAN SOCIETIES FORMED BY
MEN IN RESPONSIBLE POSITIONS.  THE AGITATION OF APRIL AND MAY, 1913,
BECAME A NATIONAL MOVEMENT AND OF SUCH VOLUME THAT THE GOVERNMENT HAD
TO PAY RESPECT TO IT.  THE ANTI-AMERICAN MOVEMENT SPREAD, ASSOCIATIONS
SPRANG UP LIKE MUSHROOMS TO DEAL WITH THE MATTER.'"  MCWILLIAMS,
PREJUDICE (1944), P. 46. 

FN8  QUOTED IN ICHIHASHI, JAPANESE IN THE UNITED STATES (1932), P.
274. 

FN9  REPORT OF CALIFORNIA STATE BOARD OF CONTROL, CALIFORNIA AND THE
ORIENTAL (1920), P. 11. 

FN10  FROM A SPEECH BEFORE THE COMMONWEALTH CLUB OF SAN FRANCISCO ON
AUGUST 9, 1913, QUOTED IN ICHIHASHI, JAPANESE IN THE UNITED STATES
(1932), P. 275. 

APPARENTLY ONE FACTOR WHICH, IN MR. WEBB'S MIND, MADE THE JAPANESE AN
"UNDESIRABLE" RACE WAS THEIR EFFICIENCY IN AGRICULTURAL PRODUCTION.  IN
A BRIEF SIGNED BY HIM AND SUBMITTED TO THIS COURT IN PORTERFIELD V.
WEBB, 263 U.S. 225(NO. 28, OT 1923), P. 25, HE STATED: 

"THE FUNDAMENTAL QUESTION IS NOT ONE OF RACE DISCRIMINATION.  IT IS A
QUESTION OF RECOGNIZING THE OBVIOUS FACT THAT THE AMERICAN FARM, WITH
ITS HISTORICAL ASSOCIATIONS OF CULTIVATION, ENVIRONMENT, AND INCLUDING
THE HOME LIFE OF ITS OCCUPANTS, CAN NOT EXIST IN COMPETITION WITH A
FARM DEVELOPED BY ORIENTALS WITH THEIR TOTALLY DIFFERENT STANDARDS AND
IDEAS OF CULTIVATION OF THE SOIL, OF LIVING AND SOCIAL CONDITIONS. 

"IF THE ORIENTAL FARMER IS THE MORE EFFICIENT, FROM THE STANDPOINT OF
SOIL PRODUCTION, THERE IS JUST THAT MUCH GREATER CERTAINTY OF AN
ECONOMIC CONFLICT WHICH IT IS THE DUTY OF STATESMEN TO AVOID. 

"THE CONSERVATIVE AND INTELLIGENT STATESMEN OF JAPAN HAVE RECOGNIZED
THIS TRUTH JUST AS FULLY AS HAVE THOSE OF AMERICA.  IT IS FAR BETTER TO
HAVE AN OCCASIONAL OUTBURST FROM EXTREMISTS WHO REFUSE TO RECOGNIZE THE
UNDERLYING REASON FOR SUCH LEGISLATION, THAN TO PERMIT OF A CONDITION
THAT WOULD LEAD TO RESULTS FAR MORE SERIOUS FROM THE STANDPOINT OF THE
FRIENDLY RELATIONS OF THE TWO NATIONS." 

FN11  "IN POINT OF VIRULENCE, THE 1920 AGITATION FAR EXCEEDED ANY
SIMILAR DEMONSTRATION IN CALIFORNIA.  IN SUPPORT OF THE INITIATIVE
MEASURES, THE AMERICAN LEGION EXHIBITED A MOTION PICTURE THROUGHOUT THE
STATE ENTITLED 'SHADOWS OF THE WEST.'  ALL THE CHARGES EVER MADE
AGAINST THE JAPANESE WERE ENACTED IN THIS FILM.  THE FILM SHOWED A
MYSTERIOUS ROOM FITTED WITH WIRELESS APPARATUS BY WHICH 'A HEAD
JAPANESE TICKED OUT PRICES WHICH CONTROLLED A STATE-WIDE VEGETABLE
MARKET'; SPIES DARTED IN AND OUT OF THE SCENES, JAPANESE WERE SHOWN
DUMPING VEGETABLES INTO THE HARBOR TO MAINTAIN HIGH PRICES; TWO WHITE
GIRLS WERE ABDUCTED BY A GROUP OF JAPANESE MEN ONLY TO BE RESCUED, AT
THE LAST MOMENT, BY A SQUAD OF AMERICAN LEGIONNAIRES.  WHEN MEETINGS
WERE CALLED TO PROTEST THE EXHIBITION OF THIS SCURRILOUS FILM, THE
MEETINGS WERE BROKEN UP."  MCWILLIAMS, PREJUDICE (1944), P. 60. 

FN12  FROM THE PAMPHLET, "ARGUMENT IN FAVOR OF PROPOSED ALIEN LAND
LAW," QUOTED IN MCGOVNEY, "THE ANTI-JAPANESE LAND LAWS OF CALIFORNIA
AND TEN OTHER STATES," 35 CALIF. L. REV. 7, 14. 

FN13  SEE 8 U.S.C. SEC. 703, AS LAST AMENDED ON JULY 2, 1946, 60
STAT. 416.  THIS EXTENDS THE RIGHT TO BECOME A NATURALIZED CITIZEN ONLY
TO WHITE PERSONS, PERSONS OF AFRICAN NATIVITY OR DESCENT, PERSONS WHO
ARE DESCENDANTS OF RACES INDIGENOUS TO THE CONTINENTS OF NORTH OR SOUTH
AMERICA OR ADJACENT ISLANDS, FILIPINO PERSONS, CHINESE PERSONS AND
PERSONS OF CHINESE DESCENT, AND PERSONS OF RACES INDIGENOUS TO INDIA. 
BUT CHINESE AND HINDUS WERE NOT ELIGIBLE AT THE TIME THE ALIEN LAND LAW
WAS UNDER CONSIDERATION. 

FN14  "THE PEOPLE OF THAT STATE (CALIFORNIA) DID NOT OBJECT
PARTICULARLY TO CHINESE AND NEGROES, WHO WERE RACIALLY DIFFERENT BUT
WHO STAYED IN THEIR PLACE.  BUT THEY DID OBJECT TO THE JAPANESE BECAUSE
THEY WERE EFFICIENT, THRIFTY, AMBITIOUS, AND, ABOVE ALL, UNWILLING TO
REMAIN 'MUDSILLERS.'"  BAILEY, "CALIFORNIA, JAPAN, AND THE ALIEN LAND
LEGISLATION OF 1913," 1 PAC. HIST. REV. 36, 57. 

FN15  THE CALIFORNIA STATE BOARD OF CONTROL COLLECTED STATISTICS IN
1920 AS TO CITY LOTS AND FARM LANDS OCCUPIED BY ORIENTALS, BOTH
AMERICAN CITIZENS AND ALIENS.  OF THE TOTAL OF 27,931,444 ACRES OF FARM
LAND IN THE STATE, JAPANESE OWNED 74,769 ACRES, CHINESE OWNED 12,076
ACRES AND HINDUS OWNED 2,099 ACRES.  AT THE SAME TIME, JAPANESE HELD
UNDER LEASE OR CROP CONTRACT 383,287 ACRES, CHINESE HELD 65,181 ACRES
AND HINDUS HELD 86,340.  THERE WAS NO INDICATION THAT ANY OTHER ALIENS
THEN INELIGIBLE FOR CITIZENSHIP HELD ANY SUBSTANTIAL AMOUNT OF FARM
LANDS.  REPORT, CALIFORNIA AND THE ORIENTAL (1920), P. 47. 

FN16  THESE STATISTICS HAVE BEEN COMPILED BY THE PETITIONER (APPENDIX
B OF BRIEF IN THIS COURT) FROM THE BIENNIAL REPORTS OF THE CALIFORNIA
ATTORNEY GENERAL'S OFFICE FROM 1912-14 THROUGH 1944-46, AS SUPPLEMENTED
BY THE STATE'S BRIEF IN THIS CASE (P. 47). 

FN17  IN 1944 THE ATTORNEY GENERAL OF CALIFORNIA EXPLAINED THAT THE
SUBSTANTIAL NON-ENFORCEMENT OF THE LAW PRIOR TO WORLD WAR II WAS "A
REFLECTION OF THE NATIONAL POLICY TO REFRAIN FROM ACTS WHICH MIGHT BE
REGARDED AS UNFRIENDLY TO THE JAPANESE RACE AND THE JAPANESE EMPIRE." 
PROCEEDINGS, CALIFORNIA LAND TITLE ASSOCIATION (38TH ANN. CONF. 1944),
P. 97.  SUCH WAS ALSO THE REASON GIVEN BY A CALIFORNIA SENATE FACT
FINDING COMMITTEE ON JAPANESE RESETTLEMENT (REPORT OF MAY 1, 1945), P.
3:  "THE FEDERAL AUTHORITIES SINCE THE BEGINNING HAVE NOT LOOKED WITH
FAVOR UPON THE ENFORCEMENT OF THE LAW JUST AS THEY OPPOSED ITS
ENACTMENT IN THE BEGINNING.  THE PRINCIPAL REASON FOR THIS ATTITUDE
APPEARS TO HAVE BEEN THAT EXPRESSED BY WILLIAM JENNINGS BRYAN WHEN, AS
SECRETARY OF STATE, HE CAME TO CALIFORNIA IN OPPOSITION TO THE
ENACTMENT OF THIS LAW.  HE STATED THAT THE ENACTMENT OF THE LAW MIGHT
TURN A NOW FRIENDLY NATION INTO AN UNFRIENDLY NATION.  UNDOUBTEDLY THE
ATTITUDE OF THE FEDERAL AUTHORITIES ON THIS MATTER HAS BEEN AN
IMPORTANT INFLUENCE." 

FN18  SEE GORDON, "THE RACIAL BARRIER TO AMERICAN CITIZENSHIP," 93 U.
OF PA. L. REV. 237. 

FN19  SEE ARROWSMITH V. VOORHIES, 55 F.2D 310, HOLDING INVALID A
MICHIGAN STATUTE WHICH PROHIBITED "UNDESIRABLE ALIENS," AS DEFINED BY
THE LAWS OF THE UNITED STATES, FROM ESTABLISHING OR MAINTAINING LEGAL
RESIDENCE IN THAT STATE OR FROM SECURING EMPLOYMENT IN THAT STATE.  SEE
ALSO HINES V. DAVIDOWITZ, 312 U.S. 52. 

FN20  OF THE 48,158 ALIENS INELIGIBLE FOR NATURALIZATION, 47,305 WERE
JAPANESE, 749 WERE KOREAN, 9 WERE POLYNESIAN, AND 95 BELONGED TO OTHER
ASIATIC GROUPS.  16TH CENSUS OF THE UNITED STATES: 1940,
CHARACTERISTICS OF THE NONWHITE POPULATION, P. 2. 

FN21  THERE WAS NO INDICATION OF ANY SABOTAGE OR OTHER SUBVERSIVE
ACTIVITIES IN THE PERIOD SURROUNDING PEARL HARBOR ON THE PART OF
JAPANESE ALIENS LONG RESIDENT IN THIS COUNTRY. 

FN22  THUS SEE THE RECENT AMENDMENT TO THE NATURALIZATION ACT, 56
STAT. 182, 8 U.S.C. SEC. 1001, PERMITTING THE NATURALIZATION OF EVERY
PERSON WHO HONORABLY SERVED IN THE ARMED FORCES OF THE UNITED STATES
DURING WORLD WAR II WITHOUT REGARD TO WHAT WOULD OTHERWISE BE RACIAL
INELIGIBILITY.  PRESUMABLY A JAPANESE ALIEN COULD OWN OR USE FARM LAND
IN CALIFORNIA IF HE MEETS THE REQUIREMENTS OF THIS PROVISION. 

FN23  THE STATISTICS WHICH FOLLOW ARE TAKEN FROM THE 16TH CENSUS OF
THE UNITED STATES:  1940, CHARACTERISTICS OF THE NONWHITE POPULATION. 
SEE ALSO MCGOVNEY, "THE ANTI-JAPANESE LAND LAWS OF CALIFORNIA AND TEN
OTHER STATES," 35 CALIF. L. REV. 7, 15-16. 

FN24  MCGOVNEY, "THE ANTI-JAPANESE LAND LAWS OF CALIFORNIA AND TEN
OTHER STATES," 35 CALIF. L. REV. 7, 14. 

FN25  43 STAT. 161, 8 U.S.C. SEC. 213(C). 

FN26  MCGOVNEY, "THE ANTI-JAPANESE LAND LAWS OF CALIFORNIA AND TEN
OTHER STATES," 35 CALIF. L. REV. 7, 16-17. 

FN27  MCWILLIAMS, PREJUDICE (1944), PP. 79-80. 

FN28  H.R. REP. NO. 2124, 77TH CONG., 2D SESS., PP. 117-118.  IN 1941
THE JAPANESE PRODUCED 90% OR MORE OF CALIFORNIA'S SNAP BEANS FOR
MARKETING, SPRING AND SUMMER CELERY, PEPPERS AND STRAWBERRIES; 50% TO
90% OF THE ARTICHOKES, SNAP BEANS FOR CANNING, CAULIFLOWER, FALL AND
WINTER CELERY, CUCUMBERS, FALL PEAS, SPINACH AND TOMATOES; 25% TO 50%
OF THE ASPARAGUS, CABBAGE, CANTALOUPES, CARROTS, LETTUCE, ONIONS, AND
WATERMELONS. 

FN29  ID., P. 118. 

FN30  SEE MCWILLIAMS, PREJUDICE (1944), CH. III. 

FN31  TERRACE V. THOMPSON, 263 U.S. 197; PORTERFIELD V. WEBB, 263
U.S. 225; WEBB V. O'BRIEN, 263 U.S. 313; FRICK V. WEBB, 263 U.S. 326. 

FN32  ON NOVEMBER 5, 1946, THE VOTERS OF CALIFORNIA REJECTED BY
1,143,780 TO 797,067 AN ATTEMPT TO "CLOSE LOOPHOLES IN LEGISLATIVE
ENACTMENTS (THE ALIEN LAND LAWS) BASED ON CONSTITUTIONAL GROUNDS."  THE
REJECTED AMENDMENT VALIDATED VARIOUS ADDITIONS TO THE ALIEN LAND LAW
WHICH HAD BEEN MADE BY THE LEGISLATURE TO PREVENT CIRCUMVENTION OF THAT
LAW.  U.S. DEPT. OF INTERIOR, W.R.A., PEOPLE IN MOTION:  THE POSTWAR
ADJUSTMENT OF THE EVACUATED JAPANESE AMERICANS (1947), PP. 41-45. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE BURTON JOINS, DISSENTING. 

THE COURT'S OPINION ASSUMES ARGUENDO THAT THE CALIFORNIA ALIEN LAND
LAWS ARE CONSTITUTIONAL.  AS WE READ THE OPINION, IT HOLDS THAT THE
ALIEN LAND LAWS OF CALIFORNIA, AS HERE APPLIED, DISCRIMINATE IN AN
UNCONSTITUTIONAL MANNER AGAINST AN AMERICAN CITIZEN - A SON BORN IN THE
UNITED STATES TO RESIDENT PARENTS OF JAPANESE NATIONALITY.  FROM THIS
HOLDING WE DISSENT. 

CALIFORNIA, THROUGH AN EXERCISE OF THE POLICE POWER, WHICH HAS BEEN
REPEATEDLY APPROVED BY US, FN1  HAS PROHIBITED OWNERSHIP OF LAND WITHIN
THE STATE BY ALIENS INELIGIBLE FOR CITIZENSHIP.  FN2 RECOGNIZING THAT
THE BENEFITS FLOWING FROM OWNERSHIP CAN BE ENJOYED THROUGH SUBTERFUGES
BY PERSONS NOT THE HOLDERS OF LEGAL OR EQUITABLE TITLE, CALIFORNIA HAS
PROSCRIBED AS TO THE STATE EVERY "CONVEYANCE  ...  MADE WITH INTENT TO
PREVENT, EVADE OR AVOID ESCHEAT  ...  "  FN3  TRANSFERS OF REAL
PROPERTY MADE WITH THIS INTENT "SHALL BE VOID AS TO THE STATE AND THE
INTEREST THEREBY CONVEYED OR SOUGHT TO BE CONVEYED SHALL ESCHEAT TO THE
STATE AS OF THE DATE OF SUCH TRANSFER  ... "  TO ASSIST IN THE PROOF OF
"INTENT TO PREVENT, EVADE OR AVOID ESCHEAT," THE STATE WAS GIVEN THE
BENEFIT OF A "PRIMA FACIE PRESUMPTION THAT THE CONVEYANCE IS MADE WITH
SUCH INTENT  ...  " WHERE THE STATE PROVES:  "THE TAKING OF THE
PROPERTY IN THE NAME OF A PERSON OTHER THAN (AN ALIEN WHO CANNOT HOLD
LAND)  ...  IF THE CONSIDERATION IS PAID OR AGREED OR UNDERSTOOD TO BE
PAID BY AN ALIEN (WHO CANNOT HOLD LAND)  ...  "  THUS THE STATE HAS
MADE VOID AS TO IT, TWO SUBSTANTIVE ACTS: (1) OWNERSHIP OF LAND BY
INELIGIBLE ALIENS AND (2) TRANSFERS MADE TO AVOID BY INDIRECTION THE
PROHIBITION AGAINST OWNERSHIP OF LAND BY INELIGIBLE ALIENS.  THE
STATUTORY SCHEME RECOGNIZES THAT THE PURPOSE OF THE ALIEN LAND LAWS
CANNOT BE ACHIEVED UNLESS ATTEMPTS TO AVOID THE BASIC PROHIBITION OF
THE LAW ARE PENALIZED.  ANY LAW AIMED AT THE PREVENTION OF OWNERSHIP BY
INELIGIBLE ALIENS, WHICH DID NOT PENALIZE BOTH THE ACT OF OWNING AND
THE ACT OF ATTEMPTING TO ENJOY THE RIGHTS OF OWNERSHIP THROUGH A CLOAK,
WOULD BE DEFECTIVE AND READILY AVOIDED.    THE TRIAL COURT FOUND THAT
THE TRANSFERS CHALLENGED BY CALIFORNIA IN THIS CASE WERE MADE WITH AN
"INTENT TO PREVENT, EVADE OR AVOID ESCHEAT"; IN SO FINDING THE COURT
CONSIDERED THE STATUTORY PRESUMPTION TOGETHER WITH THE OTHER EVIDENCE
DETAILED IN THE COURT'S OPINION AND CONCLUDED THAT THE DEFENDANTS HAD
NOT MET THE STATUTORY BURDEN OF PROOF IMPOSED BY SEC. 9.  THE SUPREME
COURT OF CALIFORNIA AFFIRMED. 

WE DO NOT HAVE IN THIS REVIEW A BALANCING OF CONSTITUTIONAL RIGHTS;
ON ONE HAND, THE RIGHT OF CALIFORNIA TO EXCLUDE INELIGIBLE ALIENS FROM
LAND OWNERSHIP AND, ON THE OTHER, THE RIGHT OF THEIR CITIZEN SONS TO
HOLD LAND.  CALIFORNIA DOES NOT DENY THE RIGHT TO OWN LAND IN
CALIFORNIA TO A CITIZEN SON OF AN INELIGIBLE ALIEN.  IF THAT CITIZEN
OBTAINS THE LAND IN ANY WAY NOT MADE VOID AS A VIOLATION OF LAW, HE MAY
HOLD IT.  UNDER SEC. 9 THE LAND ESCHEATS BECAUSE OF THE FATHER'S
VIOLATION OF LAW BEFORE IT REACHES THE SON.  THE DENIAL TO THE FATHER
BY CALIFORNIA OF THE PRIVILEGE OF LAND OWNERSHIP IS NOT CHALLENGED. 
NEITHER IS THE RIGHT TO PROTECT THAT DENIAL BY AN ESCHEAT OF THE LAND
ON THE FATHER'S ATTEMPT TO AVOID THE LIMITATIONS OF THE CALIFORNIA LAND
LAW.  ACTUALLY, THE ONLY PROBLEM IS WHETHER THE PRESUMPTION ARISING
FROM THE PAYMENT OF MONEY FOR LAND BY THE INELIGIBLE FATHER DENIES
EQUAL PROTECTION OF THE LAW TO THE SON.  WE UNDERSTAND THE MAJORITY
OPINION TO HOLD THAT PRESUMPTION (A) OF SEC. 9, WITH ITS SO-CALLED
ANCILLARY INFERENCES BECAUSE OF THE SON'S MINORITY AND THE FATHER'S
FAILURE TO FILE GUARDIANSHIP REPORTS OR TESTIFY, AS HERE APPLIED,
DISCRIMINATES UNCONSTITUTIONALLY AGAINST FRED OYAMA.  IF THAT
PRESUMPTION, WITH THE INFERENCES, HAD BEEN HELD CONSTITUTIONAL,
APPARENTLY THE COURT WOULD HAVE AFFIRMED THE OPINION BELOW BECAUSE THE
ISSUE THEN REMAINING WOULD HAVE BEEN THE CORRECTNESS OF THE FINDINGS OF
FACT BY THE TRIAL JUDGE.  NO ONE WOULD SUGGEST THAT THE CORRECTNESS OF
THOSE FINDINGS COULD BE CHALLENGED HERE; THE RESOLUTION OF DISPUTED
ISSUES OF FACT IN NON-CONSTITUTIONAL MATTERS IS FOR THE STATE JUDICIAL
SYSTEM.  THIS COURT DOES NOT INTIMATE THAT IT DISAGREES WITH
CALIFORNIA'S FACTUAL CONCLUSION.  ITS RULING IS BASED ON THE
"CUMULATIVE EFFECT" OF THE "STATUTORY PRESUMPTION" AND "TWO ANCILLARY
INFERENCES."  ON REMAND TO THE COURTS OF CALIFORNIA, THE CASE MAY BE
TRIED AGAIN.  ON THAT RETRIAL ALL OF THE EVIDENCE ADMITTED AT THE FIRST
TRIAL MAY BE SUBMITTED TO THE TRIERS OF FACT FOR NO ONE SAYS THAT THE
ITEMS OF EVIDENCE, INCLUDING THE FATHER'S PAYMENT OF CONSIDERATION,
INTRODUCED BY THE STATE ARE INADMISSIBLE.  A MAJOR VICE OF THE STATE'S
APPLICATION OF THE LAW APPARENTLY WAS THE RELIANCE UPON A PRESUMPTION
AND INFERENCES THAT THIS COURT HOLDS DENY EQUAL PROTECTION.  IF AN
INTENT TO "PREVENT, EVADE OR AVOID ESCHEAT" IS FOUND ON THE SAME
EVIDENCE, AN ESCHEAT WILL AGAIN TAKE PLACE. 

PRESUMPTION (A) OF SEC. 9 HAS BEEN CONSTRUED BY THE CALIFORNIA
SUPREME COURT:  "THAT IF THE CONSIDERATION FOR THE PURCHASE OF THE REAL
PROPERTY IS PAID BY AN INELIGIBLE ALIEN AND THE TITLE IS TAKEN IN THE
NAME OF A THIRD PERSON, IT WILL BE PRESUMED, IN THE ABSENCE OF OTHER
EVIDENCE TO THE CONTRARY, THAT IT WAS THE INTENT OF BOTH THE ALIEN AND
THE GRANTEE TO 'PREVENT, EVADE OR AVOID' THE ESCHEAT AT LAW.  ...  BUT
THE PRESUMPTION IS RECOGNIZED AS DISPUTABLE AND AS DISAPPEARING IN THE
FACE OF CONTRARY EVIDENCE OF SUFFICIENT STRENGTH TO MEET OUR RULE ON
CONFLICT OF TESTIMONY."  FN4  WE DO NOT INTERPRET THE OPINION OF OUR
BRETHREN TO SAY THAT THE PRESUMPTION, IF VALID, IS IRREBUTTABLE; OR, TO
PUT THE MATTER DIFFERENTLY, THAT THE EFFECT OF THE PRESUMPTION, IF
VALID, IS TO MAKE IT INEVITABLE THAT ALL GIFTS OF REAL PROPERTY BY AN
ALIEN-JAPANESE FATHER TO HIS CHILD CAN BE SUCCESSFULLY ESCHEATED BY THE
STATE.  AS THE CASES PROVE, AN ALIEN-JAPANESE FATHER CAN GIVE
CALIFORNIA LANDS TO HIS SON IN SPITE OF THE PRESUMPTION.  FN5  THE
EFFECT OF THE PRESUMPTION, IF VALID, IS RATHER TO PLACE A BURDEN, AN
"ONEROUS BURDEN" TO ADOPT THE PHRASE OF THE MAJORITY OPINION, UPON ALL
GRANTEES WHO TAKE LAND UNDER THOSE CONDITIONS SET FORTH IN SEC. 9. 

THE ISSUE IN THIS CASE, THEREFORE, IS NEITHER THE VALIDITY OF THE
CALIFORNIA PROHIBITION AGAINST THE OWNERSHIP OF AGRICULTURAL LAND BY A
PERSON INELIGIBLE TO BECOME AN AMERICAN CITIZEN, NOR THE VALIDITY OF A
LAW, SEC. 9, THAT AN ATTEMPT TO EVADE THAT PROHIBITION SHALL BE
PENALIZED BY ESCHEAT.  THE VALIDITY OF BOTH OF THESE PROVISIONS IS
UNCHALLENGED BY THIS COURT'S OPINION.  THE ISSUE HERE IS THE VALIDITY
OF THE PRESUMPTION THAT WHEN AN INELIGIBLE PERSON PAYS THE
CONSIDERATION FOR LAND CONVEYED TO AN ELIGIBLE PERSON, THERE IS A PRIMA
FACIE PRESUMPTION THAT THE CONVEYANCE IS MADE TO AVOID THE PROHIBITED
OWNERSHIP.  THE ESSENCE OF THE ARGUMENT IN THE OPINION IS THIS:  WHEN
AN ALIEN-ENGLISH FATHER PURCHASES LAND FROM A THIRD PARTY AND PUTS
TITLE IN HIS CHILD, ACCEPTANCE BY THE CHILD AND DELIVERY OF THE DEED
ARE PRESUMED; HOWEVER, IF AN ALIEN-JAPANESE FATHER ENGAGES IN THE SAME
TRANSACTION, HIS CHILD MUST MEET THE "ONEROUS BURDEN" OF THE
PRESUMPTION; THEREFORE, FRED JOHNSON AND FRED OYAMA ARE NOT TREATED
EQUALLY BY THE LAWS OF CALIFORNIA AND FRED OYAMA IS DENIED EQUAL
PROTECTION BY THOSE LAWS.  THESE FACTS ARE ACCURATE; THE FLAW IS THAT
THE CONCLUSION DOES NOT FOLLOW.  CALIFORNIA HAS, AS AGAINST THE STATE,
MADE ILLEGAL A PARTICULAR CLASS OF TRANSACTIONS:  TRANSFERS MADE WITH
THE INTENT TO EVADE ESCHEAT OF LANDS.  ANYONE, NO MATTER WHAT HIS
RACIAL ORIGIN MAY BE, WHO AS A GRANTEE IS A PARTY TO A SALE OF LAND
WHICH THE STATE ATTACKS AS BEING WITHIN THE PROSCRIBED CLASS MUST
OVERCOME THE PRESUMPTION OF SEC. 9 TO ESTABLISH THE LEGALITY OF THE
TRANSFER.  THIS PRESUMPTION OPERATES WITH A MECHANICAL IMPARTIALITY. 
WHOEVER THE GRANTEE IN A TRANSFER QUESTIONED BY THE STATE IS, BE HE
FRED JOHNSON OR FRED OYAMA, HE MUST BEAR THE "ONEROUS BURDEN"; HE MUST
BEAR IT NOT BECAUSE OF DESCENT OR NATIONALITY BUT BECAUSE HE HAS BEEN A
PARTY TO A TRANSACTION WHICH THE STATE CHALLENGES AS ILLEGAL UNDER AN
ADMITTEDLY VALID LAW. 

AS WE SEE THE COURT'S ARGUMENT, IT FOCUSES ATTENTION UPON WHAT IT
CONTENDS ARE TWO PARALLEL SITUATIONS:  THE GIFT OF AN ENGLISH FATHER TO
A CITIZEN SON AND THE GIFT OF A JAPANESE FATHER TO A CITIZEN SON.  UPON
EXAMINATION OF THE RELEVANT STATE LAWS, IT CONCLUDES THAT THE SON OF
THE JAPANESE FATHER IS PLACED IN A POSITION LESS ADVANTAGEOUS THAN THAT
OF THE SON OF AN ENGLISH FATHER.  THAT IS SO, BUT FOR OUR PURPOSES IT
IS THE REASON FOR THE RESULT, AND NOT THE RESULT ITSELF, THAT IS
IMPORTANT.  THE LEGAL POSITIONS OF THE TWO SONS ARE DIFFERENT ONLY
BECAUSE THE SITUATIONS ARE NOT PARALLEL.  THE JAPANESE FATHER AND HIS
CITIZEN SON ARE PARTIES TO AN ILLEGAL TRANSACTION IF THE LAND WAS
TRANSFERRED WITH THE "INTENT TO PREVENT, EVADE OR AVOID ESCHEAT"; AS AN
ENGLISH FATHER IS NOT PREVENTED FROM HOLDING REAL PROPERTY, HIS GIFT
CANNOT BE CHALLENGED ON THAT GROUND BY THE STATE.  THE CAPACITIES OF
THE DONORS ARE DIFFERENT AND IT IS THIS DIFFERENCE, AND NOTHING ELSE,
WHICH RAISES IN ONE CASE AND FAILS TO RAISE IN THE OTHER, THE
PRESUMPTION COMPLAINED OF BY OYAMA.  FN6  IT IS NOT A DENIAL OF EQUAL
PROTECTION FOR A STATE TO CLASSIFY TRANSACTIONS READILY LEADING TO LAW
EVASIONS DIFFERENTLY FROM THOSE WITHOUT SUCH A POSSIBILITY.  SUCH
CLASSIFICATION IS PERMISSIBLE. 

LET US TEST THE COURT'S REASONING BY APPLYING IT TO A DIFFERENT SET
OF FACTS.  FOR PURPOSES OF ILLUSTRATION, WE PUT THESE CASES:  (1) A
SOLVENT FATHER PURCHASES LAND FROM A THIRD PARTY AND PUTS THE TITLE IN
HIS SON; AND (2) AN INSOLVENT FATHER PURCHASES LAND FROM A THIRD PARTY
AND PUTS THE TITLE IN HIS SON.  IN EXAMPLE (2), THE CREDITORS OF THE
FATHER IN AN ACTION AGAINST THE SON TO SUBJECT THE LAND TO THE
SATISFACTION OF THEIR CLAIMS AGAINST THE FATHER, CAN RAISE A PRIMA
FACIE PRESUMPTION THAT THE TRANSFER WAS FRAUDULENT AS TO THEM BY
PROVING THAT THE TRANSACTION TOOK PLACE DURING THE PERIOD OF THE
FATHER'S INSOLVENCY.  FN7  HERE THE SON OF THE INSOLVENT FATHER BEARS
AN "ONEROUS BURDEN" TO WHICH THE SON OF A SOLVENT FATHER IS NOT
SUBJECTED; HE BEARS THIS BURDEN BECAUSE HE HAS BEEN A PARTY TO A
TRANSACTION WHICH CREDITORS CHALLENGE AS VOIDABLE.  THE DISABILITY OF
THE FATHER TAINTS THE SON'S RIGHT AND, THEREFORE, HE IS PLACED IN A
POSITION LESS ADVANTAGEOUS THAN THAT OF THE SON OF A SOLVENT FATHER. 
WOULD IT BE REASONABLE TO SAY THAT THE SON OF THE INSOLVENT FATHER HAS
BEEN DENIED "EQUAL PROTECTION" AND, CONSEQUENTLY, THE PRESUMPTION IS
UNCONSTITUTIONAL?  NO ONE WOULD SO CONTEND.  THE INEQUALITY BETWEEN THE
SONS OF ELIGIBLE AND INELIGIBLE LANDOWNERS DOES NOT SEEM TO US TO
DIFFER. 

AS WE UNDERSTAND PETITIONERS' ARGUMENT IN BRIEFS AND BEFORE THIS
COURT, THE PETITIONERS IN THEIR DISCUSSION OF THE DENIAL OF EQUAL
PROTECTION TO THE CITIZEN SON DEPENDED SOLELY UPON THE INVALIDITY OF
THE PRESUMPTION ARISING FROM THE PAYMENT OF THE MONEY BY THE FATHER. 
THIS COURT'S OPINION RECOGNIZES THAT PETITIONERS' ARGUMENT INCLUDES
DISCRIMINATION, AMOUNTING TO A LACK OF EQUAL PROTECTION, ARISING (1)
FROM THE REQUIREMENT OF SEC. 9 THAT THE SON MUST TAKE THE BURDEN OF
PROVING AFFIRMATIVELY THE BONA FIDES OF THE GIFT FROM THE FATHER; (2)
BECAUSE THE GIFT TO THE INFANT SON OF A JAPANESE IS PRESUMED INVALID
WHILE THE GIFT TO AN INFANT SON OF AN ELIGIBLE ALIEN IS PRESUMED VALID;
(3) BECAUSE THE COURT TOOK INTO CONSIDERATION THE FATHER'S OMISSION TO
FILE GUARDIAN REPORTS AFTER THE TRANSFER.  NORMALLY, THE COURT SAYS, A
GUARDIAN'S SUBSEQUENT IMPROPER CONDUCT WOULD NOT AFFECT THE VALIDITY OF
A GIFT TO A CHILD.  BECAUSE OF WHAT IS DEEMED ADDITIONAL BURDENS THUS
PLACED UPON THE SON, THE COURT CONCLUDES THAT: 

"THE CUMULATIVE EFFECT, WE BELIEVE, WAS CLEARLY TO DISCRIMINATE
AGAINST FRED OYAMA.  ... 

"THE ONLY BASIS FOR THIS DISCRIMINATION AGAINST AN AMERICAN CITIZEN,
MOREOVER, WAS THE FACT THAT HIS FATHER WAS JAPANESE AND NOT AMERICAN,
RUSSIAN, CHINESE, OR ENGLISH." 

THESE DISCRIMINATIONS, IF SUCH THEY ARE, SEEM TO US MERE ELABORATIONS
OF THE CENTRAL THEORY THAT THE CHALLENGED PRESUMPTION OF SEC. 9 IS
UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION.  IT IS OF COURSE TRUE
THAT THE SON OF A CITIZEN OF JAPAN CANNOT RECEIVE A GIFT FROM AN
INELIGIBLE FATHER AS READILY AS A SON OF AN ALIEN ENTITLED TO
NATURALIZATION BUT AGAIN SUCH A CLASSIFICATION IS ENTIRELY REASONABLE
WHEN WE ONCE ASSUME THAT THE STATE OF CALIFORNIA HAS A RIGHT TO
PROHIBIT THE OWNERSHIP OF CALIFORNIA LAND DIRECTLY OR INDIRECTLY BY A
JAPANESE. 

DISCRIMINATION IN THE SENSE OF PLACING MORE BURDENS UPON SOME THAN
UPON OTHERS IS NOT IN ITSELF UNCONSTITUTIONAL.  IF ALL TYPES OF
DISCRIMINATION WERE UNCONSTITUTIONAL, OUR SOCIETY WOULD BE INCAPABLE OF
LEGISLATION UPON MANY IMPORTANT AND VITAL QUESTIONS.  ALL REASONABLE
CLASSIFICATION PUTS ITS SUBJECTS INTO DIFFERENT CATEGORIES WHERE THEY
MAY HAVE ADVANTAGES OR DISADVANTAGES THAT FLOW FROM THEIR POSITIONS. 
FN8  THE GROUPING OF ALL THOSE WHO TAKE LAND AS GRANTEES, IN A
TRANSACTION IN WHICH AN INELIGIBLE ALIEN PAYS THE CONSIDERATION, IN A
CLASS SUBJECT TO THE STATUTORY PRESUMPTION OF SEC. 9 AND OTHER
INFERENCES WHICH ARE REASONABLY RELATED TO THE TRANSFER, SHOULD NOT BE
STRUCK DOWN AS UNCONSTITUTIONAL.  UNLESS THE CALIFORNIA LAND LAWS ARE
TO BE HELD UNCONSTITUTIONAL, WE THINK THE PRESUMPTION AND ITS RESULTING
EFFECTS MUST BE ACCEPTED AS LEGAL. 

FN1  SEE FOOTNOTE 12 OF THE MAJORITY OPINION. 

FN2  SEC. 1:  "ALL ALIENS ELIGIBLE TO CITIZENSHIP UNDER THE LAWS OF
THE UNITED STATES MAY ACQUIRE, POSSESS, ENJOY, USE, CULTIVATE, OCCUPY,
TRANSFER, TRANSMIT AND INHERIT REAL PROPERTY, OR ANY INTEREST THEREIN,
IN THIS STATE, AND HAVE IN WHOLE OR IN PART THE BENEFICIAL USE THEREOF,
IN THE SAME MANNER AND TO THE SAME EXTENT AS CITIZENS OF THE UNITED
STATES, EXCEPT AS OTHERWISE PROVIDED BY THE LAWS OF THIS STATE." 

SEC. 2:  "ALL ALIENS OTHER THAN THOSE MENTIONED IN SECTION ONE OF
THIS ACT MAY ACQUIRE, POSSESS, ENJOY, USE, CULTIVATE, OCCUPY AND
TRANSFER REAL PROPERTY, OR ANY INTEREST THEREIN, IN THIS STATE, AND
HAVE IN WHOLE OR IN PART THE BENEFICIAL USE THEREOF, IN THE MANNER AND
TO THE EXTENT, AND FOR THE PURPOSES PRESCRIBED BY ANY TREATY NOW
EXISTING BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE NATION OR
COUNTRY OF WHICH SUCH ALIEN IS A CITIZEN OR SUBJECT, AND NOT
OTHERWISE." 

SEC. 7:  "ANY REAL PROPERTY HEREAFTER ACQUIRED IN FEE IN VIOLATION OF
THE PROVISIONS OF THIS ACT BY ANY ALIEN MENTIONED IN SECTION 2 OF THIS
ACT, OR BY ANY COMPANY, ASSOCIATION OR CORPORATION MENTIONED IN SECTION
3 OF THIS ACT, SHALL ESCHEAT AS OF THE DATE OF SUCH ACQUIRING, TO, AND
BECOME AND REMAIN THE PROPERTY OF THE STATE OF CALIFORNIA.  ...  " 

FN3  SEC. 9:  "EVERY TRANSFER OF REAL PROPERTY, OR OF AN INTEREST
THEREIN, THOUGH COLORABLE IN FORM, SHALL BE VOID AS TO THE STATE AND
THE INTEREST THEREBY CONVEYED OR SOUGHT TO BE CONVEYED SHALL ESCHEAT TO
THE STATE AS OF THE DATE OF SUCH TRANSFER, IF THE PROPERTY INTEREST
INVOLVED IS OF SUCH A CHARACTER THAT AN ALIEN MENTIONED IN SECTION 2
HEREOF IS INHIBITED FROM ACQUIRING, POSSESSING, ENJOYING, USING,
CULTIVATING, OCCUPYING, TRANSFERRING, TRANSMITTING OR INHERITING IT,
AND IF THE CONVEYANCE IS MADE WITH INTENT TO PREVENT, EVADE OR AVOID
ESCHEAT AS PROVIDED FOR HEREIN. 

"A PRIMA FACIE PRESUMPTION THAT THE CONVEYANCE IS MADE WITH SUCH
INTENT SHALL ARISE UPON PROOF OF ANY OF THE FOLLOWING GROUP OF FACTS: 

"(A)  THE TAKING OF THE PROPERTY IN THE NAME OF A PERSON OTHER THAN
THE PERSONS MENTIONED IN SECTION 2 HEREOF IF THE CONSIDERATION IS PAID
OR AGREED OR UNDERSTOOD TO BE PAID BY AN ALIEN MENTIONED IN SECTION 2
HEREOF;    "(B)  THE TAKING OF THE PROPERTY IN THE NAME OF A COMPANY,
ASSOCIATION OR CORPORATION IF THE MEMBERSHIPS OR SHARES OF STOCK
THEREIN HELD BY ALIENS MENTIONED IN SECTION 2 HEREOF, TOGETHER WITH THE
MEMBERSHIPS OR SHARES OF STOCK HELD BY OTHERS BUT PAID FOR OR AGREED OR
UNDERSTOOD TO BE PAID FOR BY SUCH ALIENS, WOULD AMOUNT TO A MAJORITY OF
THE MEMBERSHIP OR ISSUED CAPITAL STOCK OF SUCH COMPANY, ASSOCIATION OR
CORPORATION; 

"(C)  THE EXECUTION OF A MORTGAGE IN FAVOR OF AN ALIEN MENTIONED IN
MANAGEMENT OF THE PROPERTY.    "IN EACH OF THE FOREGOING INSTANCES THE
BURDEN OF PROOF SHALL BE UPON THE DEFENDANT TO SHOW THAT THE CONVEYANCE
WAS NOT MADE WITH INTENT TO PREVENT, EVADE OR AVOID ESCHEAT. 

     .         .         .         .  . 

"THE ENUMERATION IN THIS SECTION OF CERTAIN PRESUMPTIONS SHALL NOT BE
SO CONSTRUED AS TO PRECLUDE OTHER PRESUMPTIONS OR INFERENCES THAT
REASONABLY MAY BE MADE AS TO THE EXISTENCE OF INTENT TO PREVENT, EVADE
OR AVOID ESCHEAT AS PROVIDED FOR HEREIN." 

PRESUMPTION (A) HAS NOT BEEN CHALLENGED ON DUE PROCESS GROUNDS.  SUCH
AN ATTACK WOULD BE FUTILE AS THERE IS A "RATIONAL CONNECTION BETWEEN
THE (FACTS) PROVED AND THE ULTIMATE FACT PRESUMED."  TOT V. UNITED
STATES, 319 U.S. 463, 467.  IN COCKRILL V. CALIFORNIA, 268 U.S. 258,
THIS COURT HELD THAT PRESUMPTION (A) DID NOT VIOLATE DUE PROCESS. 

FN4  PEOPLE V. FUJITA, 215 CAL. 166, 170-71, 8 P.2D 1011-12; SEE
TAKEUCHI V. SCHMUCK, 206 CAL. 782, 276 P. 345.  INDEED, A HOLDING THAT
THIS PRESUMPTION WAS CONCLUSIVE MIGHT OPEN IT TO A SERIOUS ATTACK BASED
UPON DUE PROCESS GROUNDS.  SEE HEINER V. DONNAN, 285 U.S. 312. 

FN5  PEOPLE V. FUJITA, 215 CAL. 166, 8 P.2D 1011; SEE ESTATE OF YANO,
188 CAL. 645, 206 P. 995. 

FN6  MOBILE, J. & K.C.R. CO. V. TURNIPSEED, 219 U.S. 35, 42-43: 

"LEGISLATION PROVIDING THAT PROOF OF ONE FACT SHALL CONSTITUTE PRIMA
FACIE EVIDENCE OF THE MAIN FACT IN ISSUE IS BUT TO ENACT A RULE OF
EVIDENCE, AND QUITE WITHIN THE GENERAL POWER OF GOVERNMENT.  STATUTES,
NATIONAL AND STATE, DEALING WITH SUCH METHODS OF PROOF IN BOTH CIVIL
AND CRIMINAL CASES ABOUND, AND THE DECISIONS UPHOLDING THEM ARE
NUMEROUS.  ... 

"THAT A LEGISLATIVE PRESUMPTION OF ONE FACT FROM EVIDENCE OF ANOTHER
MAY NOT CONSTITUTE A DENIAL OF DUE PROCESS OF LAW OR A DENIAL OF THE
EQUAL PROTECTION OF THE LAW IT IS ONLY ESSENTIAL THAT THERE SHALL BE
SOME RATIONAL CONNECTION BETWEEN THE FACT PROVED AND THE ULTIMATE FACT
PRESUMED, AND THAT THE INFERENCE OF ONE FACT FROM PROOF OF ANOTHER
SHALL NOT BE SO UNREASONABLE AS TO BE A PURELY ARBITRARY MANDATE.  SO,
ALSO, IT MUST NOT, UNDER GUISE OF REGULATING THE PRESENTATION OF
EVIDENCE, OPERATE TO PRECLUDE THE PARTY FROM THE RIGHT TO PRESENT HIS
DEFENSE TO THE MAIN FACT THUS PRESUMED." 

SEABOARD AIR LINE R. CO. V. WATSON, 287 U.S. 86, 90; BANDINI CO. V.
SUPERIOR COURT, 284 U.S. 8, 18-19; UNITED STATES EX REL. ST. LOUIS S.R.
CO. V. I.C.C., 264 U.S. 64, 77. 

FN7  BAILEY V. BLACKMON, 3 F.2D 252, 253, AFF'D ON REHEARING, 14 F.2D
16; HEDRICK V. HOCKFIELD, 283 F. 574, 576-77; RYAN V. WOHL, SOUTH &
CO., 241 ALA. 123, 124-25, 1 SO.2D 292, 293; JUDSON V. LYFORD, 84 CAL.
505, 509, 24 P. 286, 287-288; SWARTZ V. HAZLETT, 8 CAL. 118, 128;
CHRISMAN V. GREER, 239 KY. 378, 380, 39 S.W.2D 678, 679; PRUYN V.
YOUNG, 51 LA. ANN. 320, 322, 25 SO. 125, 126; LUSK V. RIGGS, 65 NEB.
258, 261, 91 N.W. 243, 244; GRAMBLING, SPALDING & CO. V. DICKEY, 118
N.C. 986, 988, 24 S.E. 671, 672; WILLAMETTE GROCERY CO. V. SKIFF, 118
ORE.  685, 689, 248 P. 143, 144. 

THIS ANALOGY IS EXACT BECAUSE IN MOST JURISDICTIONS THE FACT OF A
BLOOD RELATIONSHIP ALONE RAISES NO PRESUMPTION OF FRAUD.  GOTTLIEB V.
THATCHER, 151 U.S. 271, 279; GRAY V. GALPIN, 98 CAL. 633, 635, 33 P.
725, 726.  SEE CASES COLLECTED IN 27 C.J. 827, NOTE 99; 37 C.J.S. 1084,
NOTE 9. 

FN8  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-79: 

"THE RULES BY WHICH THIS CONTENTION MUST BE TESTED, AS IS SHOWN BY
REPEATED DECISIONS OF THIS COURT, ARE THESE:  1.  THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT TAKE FROM THE STATE THE
POWER TO CLASSIFY IN THE ADOPTION OF POLICE LAWS, BUT ADMITS OF THE
EXERCISE OF A WIDE SCOPE OF DISCRETION IN THAT REGARD, AND AVOIDS WHAT
IS DONE ONLY WHEN IT IS WITHOUT ANY REASONABLE BASIS AND THEREFORE IS
PURELY ARBITARY.  2.  A CLASSIFICATION HAVING SOME REASONABLE BASIS
DOES NOT OFFEND AGAINST THAT CLAUSE MERELY BECAUSE IT IS NOT MADE WITH
MATHEMATICAL NICETY OR BECAUSE IN PRACTICE IT RESULTS IN SOME
INEQUALITY.  3.  WHEN THE CLASSIFICATION IN SUCH A LAW IS CALLED IN
QUESTION, IF ANY STATE OF FACTS REASONABLY CAN BE CONCEIVED THAT WOULD
SUSTAIN IT, THE EXISTENCE OF THAT STATE OF FACTS AT THE TIME THE LAW
WAS ENACTED MUST BE ASSUMED.  4.  ONE WHO ASSAILS THE CLASSIFICATION IN
SUCH A LAW MUST CARRY THE BURDEN OF SHOWING THAT IT DOES NOT REST UPON
ANY REASONABLE BASIS, BUT IS ESSENTIALLY ARBITRARY." 

FINLEY V. CALIFORNIA, 222 U.S. 28. 

MR. JUSTICE JACKSON, DISSENTING. 

I AM UNABLE TO SEE HOW THIS COURT LOGICALLY CAN SET ASIDE THIS
JUDGMENT UNLESS IT IS PREPARED TO INVALIDATE THE CALIFORNIA ALIEN LAND
LAWS, ON WHICH IT IS BASED.  IF THIS JUDGMENT OF ESCHEAT SEEMS HARSH AS
TO THE OYAMAS, IT IS ONLY BECAUSE IT FAITHFULLY CARRIES OUT A
LEGISLATIVE POLICY, THE VALIDITY OF WHICH THIS COURT DOES NOT
QUESTION. 

THE STATE'S ARGUMENT IS AS SIMPLE AS THIS:  IF CALIFORNIA HAS POWER
TO FORBID CERTAIN ALIENS TO OWN ITS LANDS, IT MUST HAVE INCIDENTAL
POWER TO PREVENT EVASION OF THAT PROHIBITION BY USE OF AN INFANT'S NAME
TO CLOAK A FORBIDDEN OWNERSHIP.  IF IT HAS THE RIGHT TO PROTECT ITSELF
AGAINST SUCH EVASION, ITS COURTS MUST HAVE THE RIGHT TO DECIDE THE
QUESTION OF FACT WHETHER A GIVEN TRANSACTION CONSTITUTES AN EVASION. 
AND IF ITS COURTS HAVE TO APPLY THE ACT, THE STATE HAS POWER TO AID
THEM BY CREATING REASONABLE PRESUMPTIONS.  I CANNOT FIND THAT THIS
REASONING IS DEFECTIVE OR THAT IT FAILS TO SUPPORT THE JUDGMENT BELOW,
HOWEVER LITTLE I LIKE THE RESULT. 

IN THIS CASE THE ELDER OYAMA ARRANGED TO ACQUIRE SOME SIX ACRES OF
AGRICULTURAL LANDS.  HE COULD NOT TAKE TITLE IN HIS OWN NAME BECAUSE OF
HIS CLASSIFICATION AS AN INELIGIBLE ALIEN, AND HENCE ONE FORBIDDEN TO
ACQUIRE SUCH LANDS.  TITLE WAS TAKEN IN THE NAME OF FRED, HIS SON. 
WHEN THIS WAS HAPPENING FRED WAS SIX YEARS OLD.  HE HAD NO FUNDS AND
THE ENTIRE CONSIDERATION WAS PAID BY THE FATHER.  WE CAN HARDLY
CRITICIZE THE STATE COURT FOR CONCLUDING, ESPECIALLY IN ABSENCE OF ANY
PROOF TO THE CONTRARY, THAT A 6-YEAR-OLD CHILD DID NOT DECIDE FOR
HIMSELF TO GO INTO AGRICULTURE, OR THAT THESE PARTICULAR LANDS WOULD BE
SUITABLE FOR HIM IF HE DID.  THE LANDS WOULD REQUIRE CONTINUOUS
CULTIVATION IF THEY WERE NOT TO REVERT TO A STATE OF NATURE AND IT WAS
NOT UNREASONABLE TO DOUBT THAT THE 6-YEAR-OLD SON COULD SUPPLY EITHER
THE MANUAL LABOR OR THE OVERSIGHT NECESSARY TO PRESERVE THE INVESTMENT
OR TO MAKE IT YIELD A RETURN.  MOREOVER, THE RETURN FROM THE LANDS,
EVEN IF APPLIED TO THE SUPPORT OF YOUNG OYAMA, OPERATED TO REDUCE THE
PARENTAL OBLIGATION.  IN SHORT, THERE IS NO PROOF THAT THIS 6-YEAR-OLD
CHILD CONTRIBUTED TO THE PURCHASE OF THESE LANDS EITHER FUNDS, JUDGMENT
OR DESIRE.  THE CALIFORNIA COURT CONSIDERED THAT HIS NAME WAS USED IN
THE TRANSACTION WITHOUT THE INFANT'S UNDERSTANDING CONSENT.  EVEN IF
THERE WERE NO PRESUMPTION CREATED BY STATUTE, I SHOULD FIND IT
DIFFICULT TO SAY THAT THIS CONCLUSION IS AN UNREASONABLE ONE. 

NOR DO I THINK WE COULD SAY THAT IT WOULD OFFEND THE FEDERAL
CONSTITUTION IF THE STATE, TO MAKE ADMITTEDLY CONSTITUTIONAL
LEGISLATION EFFECTIVE, SHOULD GO SO FAR AS TO CREATE A PRESUMPTION THAT
WHERE THE CONSIDERATION IS PAID BY AN INELIGIBLE FATHER AND THE TITLE
IS TAKEN IN THE NAME OF HIS INFANT SON, IT IS TO BE DEEMED THE FATHER'S
PURCHASE.  I DO NOT UNDERSTAND THE COURT TO SAY THAT THIS IS A
FARFETCHED OR UNREASONABLE INFERENCE FROM SUCH FACTS.  IT SEEMS TO SAY,
HOWEVER, THAT A PRESUMPTION, WHICH IT CONSTRUES IN THIS WAY, IS INVALID
BECAUSE IT OPERATES ONLY AGAINST SONS OF PERSONS INELIGIBLE FOR
CITIZENSHIP.  IF EVEN SUCH A PRESUMPTION STRIKES ONLY A LIMITED CLASS,
IT IS BECAUSE THE BASIC PROHIBITIONS OF THE ACT STRIKE ONLY A LIMITED
CLASS.  IF THE STATE CAN VALIDLY CLASSIFY CERTAIN ASIATICS AS A
SEPARATE CLASS FOR EXCLUSION FROM LAND OWNERSHIP, I DO NOT SEE WHY IT
COULD NOT DO SO FOR PURPOSES OF A PRESUMPTION. 

BUT THE CALIFORNIA STATUTE HAS NOT MADE A PRESUMPTION APPLICABLE ONLY
AGAINST SONS OF THE EXCLUDED ASIATICS.  THE STATUTORY PRESUMPTION, SO
FAR AS IT APPLIES HERE, IS CAST IN THIS LANGUAGE: 

"A PRIMA FACIE PRESUMPTION THAT THE CONVEYANCE IS MADE WITH SUCH
INTENT SHALL ARISE UPON PROOF OF ANY OF THE FOLLOWING GROUP OF FACTS: 

"(A)  THE TAKING OF THE PROPERTY IN THE NAME OF A PERSON OTHER THAN
THE PERSONS MENTIONED IN SECTION 2 HEREOF (THE EXCLUDED ALIEN) IF THE
CONSIDERATION IS PAID OR AGREED OR UNDERSTOOD TO BE PAID BY AN ALIEN
MENTIONED IN SECTION 2 HEREOF  ...  " 

THE SAME PRESUMPTION WOULD BE RAISED BY THE STATUTE AGAINST ANY
AMERICAN CITIZEN OR ANY ALIEN OR ANY PERSON WHATSOEVER IF HE RECEIVED
THE TITLE AND ANY INELIGIBLE ALIEN PAID THE CONSIDERATION.  THE COURT'S
DECISION IS THAT THE PRESUMPTION DENIES FRED OYAMA THE EQUAL PROTECTION
OF THE LAWS BECAUSE GRANTEES ARE TREATED DIFFERENTLY IF THEY ARE SONS
OF INELIGIBLE ALIENS THAN IF THEY ARE THE SONS OF OTHERS.  THIS ACT
MAKES NO SUCH CLASSIFICATION.  THE PRESUMPTION DOES NOT APPLY TO HIM
BECAUSE HE IS THE SON OF AN INELIGIBLE FATHER - IT APPLIES BECAUSE HE
IS A GRANTEE OF LANDS PAID FOR BY AN INELIGIBLE ALIEN.  THE COURT
ITSELF READS THIS FATHER AND SON CLASSIFICATION INTO THE ACT, QUITE
UNJUSTIFIED BY ITS WORDS.  IT IS TRUE THAT IN THIS CASE THE
RELATIONSHIP OF FATHER AND SON ALSO EXISTS, BUT THAT IS NOT THE
RELATIONSHIP THAT CALLS THE PRESUMPTION INTO OPERATION. 

THE ACT CLASSIFIES GRANTEES ONLY AS THOSE WHOSE LANDS HAVE BEEN PAID
FOR BY AN INELIGIBLE ALIEN AND THOSE WHOSE LANDS HAVE NOT.  EVERY
MEMBER OF THE CLASS WHOSE LANDS HAVE BEEN PAID FOR BY SUCH AN ALIEN
MUST OVERCOME THE PRESUMPTION.  EVERY GRANTEE SIMILARLY SITUATED IS
SADDLED BY THE IDENTICAL BURDEN IMPOSED ON FRED OYAMA WHETHER HE IS THE
SON OF A JAPANESE, THE SON OF AN AMERICAN CITIZEN OR THE SON OF AN
ELIGIBLE ALIEN.  THUS THERE IS NO DISCRIMINATION APPARENT ON ITS FACE
IN THE PROVISION OF THE STATUTE WHICH THE COURT STRIKES DOWN. 

BUT IT IS SAID THAT A DISCRIMINATION IS LATENT IN THIS PRESUMPTION
FROM THE FACT THAT OTHER FATHERS MAY GIVE LAND TO THEIR SONS AND NO
PRESUMPTION WOULD APPLY.  THAT THERE IS A DISCRIMINATION IN THIS
SITUATION NO ONE WILL DENY; IT IS THE FUNDAMENTAL ONE, WHICH THE COURT
DOES NOT TOUCH, BY WHICH THE ELDER OYAMA COULD NOT, DIRECTLY OR
INDIRECTLY, ACQUIRE THIS LAND WHILE MANY OTHER FATHERS COULD.  THE
PRESUMPTION, OF COURSE, WOULD NOT APPLY IF THE CONSIDERATION WERE PAID
BY A PERSON TO WHOM THE STATUTE DOES NOT APPLY.  BUT FRED OYAMA, THE
SON, IS IN NO DIFFERENT POSITION AS TO THE PRESUMPTION THAN THE SON OF
ANY OTHER PERSON WHATSOEVER.  IF A CITIZEN'S SON RECEIVED THIS LAND
FROM OYAMA, SENIOR UNDER THE SAME CONDITIONS, HE WOULD BE CONFRONTED
WITH THE SAME PRESUMPTION AND ESCHEAT.  IF THE OYAMA LAD, ON THE OTHER
HAND, RECEIVED THIS LAND FROM A CITIZEN, HE WOULD TAKE IT AS FREE OF
PRESUMPTION AND ESCHEAT AS ANY CALIFORNIA LAD COULD DO.  THE ONLY
DISCRIMINATION WHICH PREJUDICES YOUNG OYAMA IS THE ONE WHICH MAKES HIS
FATHER INELIGIBLE TO OWN LAND OR BE A DONOR OF IT.  THAT DISCRIMINATION
IS PASSED BY AS VALID, AND ONE THAT SEEMS TO ME WHOLLY FICTITIOUS IS
FIRST ERECTED BY THIS COURT AND THEN STRUCK DOWN. 

I DO NOT FIND ANYTHING IN THE FEDERAL CONSTITUTION WHICH AUTHORIZES
US TO STRIP A STATE OF ITS POWER TO ENACT REASONABLE PRESUMPTIONS WHICH
PUT THE BURDEN OF PRODUCING EVIDENCE UPON THE ONLY PERSON WHO POSSESSES
IT.  THIS PRESUMPTION IS NOT MADE CONCLUSIVE AND THE CALIFORNIA COURTS
HAVE SOMETIMES HELD IT TO BE OVERCOME BY EVIDENCE.  IN THIS CASE, IF
THERE IS ANY EXPLANATION OF THIS TRANSACTION OTHER THAN THAT OYAMA USED
HIS SON'S NAME TO ACQUIRE BENEFICIAL INTERESTS FOR HIMSELF WHICH HE WAS
FORBIDDEN TO ACQUIRE IN HIS OWN NAME, NO ONE KNOWS THOSE FACTS BETTER
THAN THE SENIOR OYAMA.  HE DID NOT TAKE THE WITNESS STAND.  HE LEFT
UNREBUTTED BOTH THE PRESUMPTION OF THE STATUTE AND THE INFERENCE THAT
MOST REASONABLE PERSONS, EVEN IN THE ABSENCE OF A STATUTE, WOULD DRAW
FROM THE FACTS. 

THIS COURT ALSO SAYS THAT CALIFORNIA USED THE DEFAULT OF THE FATHER,
IN FAILING TO FILE ACCOUNTINGS AS TRUSTEE FOR THE INFANT, AS EVIDENCE
AGAINST THE INFANT AND SEEMS TO IMPLY THIS WAS AN UNCONSTITUTIONAL
PROCEDURE.  AS WE HAVE SEEN, THIS INFANT WAS OF SUCH TENDER YEARS THAT
HE HAD NEITHER IDEAS NOR WILL NOR UNDERSTANDING ABOUT THE PURCHASE. 
THE ONLY PERSON'S INTENTION WHICH WOULD STAMP THIS TRANSACTION AS ONE
IN GOOD FAITH OR AS AN EVASION OF THE STATUTE WAS THE INTENTION OF THE
FATHER.  HE WAS THE ONLY ACTOR; HE GAVE THE LAND TO THE SON AND
ACCEPTED ON HIS BEHALF, SO WE ARE TOLD.  CERTAINLY IT WAS COMPETENT FOR
THE CALIFORNIA COURTS, AS BEARING ON HIS INTENTIONS AND GOOD FAITH, TO
RECEIVE EVIDENCE OF THE FACT THAT THE SOLE ACTOR DID NOT CONSIDER
HIMSELF UNDER AN OBLIGATION TO ACCOUNT AS THE LAW WOULD REQUIRE HIM TO
DO IF THE PROPERTY REALLY BELONGED TO AN INFANT AND HE WERE A TRUSTEE. 

WHILE I THINK THAT CALIFORNIA HAS PURSUED A POLICY OF UNNECESSARY
SEVERITY BY WHICH THE OYAMAS LOSE BOTH LAND AND INVESTMENT, I DO NOT
SEE HOW THIS COURT, WHILE CONCEDING THE STATE'S RIGHT TO KEEP THE
POLICY ON ITS BOOKS, CAN STRIP THE STATE OF THE RIGHT TO MAKE ITS ACT
EFFECTIVE.  WHAT WE SEEM TO BE HOLDING IS THAT WHILE THE STATE HAS
POWER TO EXCLUDE THE ALIEN FROM LAND OWNERSHIP, THE ALIEN HAS THE
CONSTITUTIONAL RIGHT TO NULLIFY THE POLICY BY A DEVICE WE WOULD BE
PROMPT TO CONDEMN IF IT WERE USED TO EVADE A FEDERAL STATUTE.    A
MAJORITY OF THE COURT AGREES THAT THE GROUND ASSIGNED BY THE COURT'S
OPINION IS SUFFICIENT TO DECIDE THIS LITIGATION.  IT DOES NOT THEREFORE
SEEM NECESSARY OR HELPFUL TO ENTER INTO A DISCUSSION OF THE
CONSTITUTIONALITY OF THE ALIEN LAND LAWS THEMSELVES. 
..END :






UNITED STATES V. SULLIVAN, 332 U.S. 689 


NO. 121.  ARGUED DECEMBER 9, 1947.  - DECIDED JANUARY 19, 1948.  - 161
F.2D 629, REVERSED. 


1.  IT IS A VIOLATION OF SEC. 301(K) OF THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT OF 1938 FOR A RETAIL DRUGGIST WHO HAS PURCHASED
SULFATHIAZOLE TABLETS FROM A WHOLESALER IN THE SAME STATE (WHO HAD
OBTAINED THEM BY WAY OF AN INTERSTATE SHIPMENT) TO REMOVE A DOZEN OF
THEM FROM A PROPERLY LABELED BULK CONTAINER IN WHICH THEY WERE SHIPPED
IN INTERSTATE COMMERCE AND IN WHICH THEY WERE BEING HELD FOR RESALE,
PLACE THEM IN A PILL BOX LABELED "SULFATHIAZOLE" BUT NOT CONTAINING THE
STATUTORILY REQUIRED DIRECTIONS FOR USE OR WARNINGS OF DANGER, AND SELL
THEM LOCALLY TO A RETAIL PURCHASER.  PP. 695-697. 

(A)  THE REMOVAL OF DRUGS FROM A CONTAINER LABELED IN ACCORDANCE WITH
THE REQUIREMENTS OF THE ACT TO ONE NOT SO LABELED IS THE DOING OF AN
ACT WHICH RESULTS IN THEIR BEING "MISBRANDED" WITHIN THE MEANING OF
SEC. 301(K).  P. 695. 

(B)  ALTHOUGH A PREVIOUS INTRASTATE SALE HAD OCCURRED FOLLOWING THE
INTERSTATE SHIPMENT AND ALTHOUGH THE RETAIL SALE IN QUESTION OCCURRED
OVER SIX MONTHS AFTER COMPLETION OF THE SHIPMENT IN INTERSTATE
COMMERCE, THE SULFATHIAZOLE TABLETS IN THIS CASE WERE "HELD FOR SALE
AFTER SHIPMENT IN INTERSTATE COMMERCE" WITHIN THE MEANING OF SEC.
301(K).  PP. 695-696. 

(C)  THE PURPOSE OF THE ACT IS TO SAFEGUARD THE CONSUMER BY APPLYING
ITS REQUIREMENTS TO ARTICLES FROM THE MOMENT OF THEIR INTRODUCTION INTO
INTERSTATE COMMERCE ALL THE WAY TO THE MOMENT OF THEIR DELIVERY TO THE
ULTIMATE CONSUMER.  PP. 696-697. 

2.  AS THUS CONSTRUED, THE ACT DOES NOT EXCEED THE CONSTITUTIONAL
POWER OF CONGRESS UNDER THE COMMERCE CLAUSE OR INVADE THE POWERS
RESERVED TO THE STATES.  MCDERMOTT V. WISCONSIN, 228 U.S. 115.  PP. 697
698. 

3.  A RESTRICTIVE INTERPRETATION SHOULD NOT BE GIVEN A STATUTE MERELY
BECAUSE CONGRESS HAS CHOSEN TO DEPART FROM CUSTOM OR BECAUSE GIVING
EFFECT TO THE EXPRESS LANGUAGE EMPLOYED BY CONGRESS MIGHT REQUIRE A
COURT TO FACE A CONSTITUTIONAL QUESTION.  PP. 692-694. 

4.  THE SCOPE OF THE OFFENSE WHICH CONGRESS DEFINED IN SEC. 301(K) OF
THE ACT IS NOT TO BE JUDICIALLY NARROWED AS APPLIED TO DRUGS BY
ENVISIONING EXTREME POSSIBLE APPLICATIONS OF ITS PROVISIONS RELATING TO
FOOD AND COSMETICS, ESPECIALLY IN VIEW OF THE BROAD DISCRETION GIVEN
THE ADMINISTRATOR TO EXCUSE MINOR VIOLATIONS WITH A WARNING AND TO
ISSUE REGULATIONS EXEMPTING MANY ARTICLES FROM THE LABELING
REQUIREMENTS WHEN COMPLIANCE IS IMPRACTICAL.  PP. 694-695. 

UNITED STATES V. SULLIVAN, TRADING AS SULLIVAN'S PHARMACY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

RESPONDENT WAS CONVICTED IN A FEDERAL DISTRICT COURT OF VIOLATING
SEC. 301(K) OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT OF 1938.  67
F.SUPP.  192.  THE CIRCUIT COURT OF APPEALS REVERSED.  161 F.2D 629. 
THIS COURT GRANTED CERTIORARI.  332 U.S. 753.  REVERSED, P. 698. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, A RETAIL DRUGGIST IN COLUMBUS, GEORGIA, WAS CHARGED IN
TWO COUNTS OF AN INFORMATION WITH A VIOLATION OF SEC. 301(K) OF THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT OF 1938.  THAT SECTION PROHIBITS
"THE DOING OF ANY  ...  ACT WITH RESPECT TO, A  ...  DRUG  ...  IF SUCH
ACT IS DONE WHILE SUCH ARTICLE IS HELD FOR SALE AFTER SHIPMENT IN
INTERSTATE COMMERCE AND RESULTS IN SUCH ARTICLE BEING MISBRANDED."  N1
ITS LABELING BEARS (1) ADEQUATE DIRECTIONS FOR USE; AND (2) SUCH
ADEQUATE WARNINGS AGAINST USE  ...  DANGEROUS TO HEALTH, OR AGAINST
UNSAFE DOSAGE  ...  AS ARE NECESSARY FOR THE PROTECTION OF USERS."  THE
INFORMATION CHARGED SPECIFICALLY THAT THE RESPONDENT HAD PERFORMED
CERTAIN ACTS WHICH RESULTED IN SULFATHIAZOLE BEING "MISBRANDED" WHILE
"HELD FOR SALE AFTER SHIPMENT IN INTERSTATE COMMERCE." 

THE FACTS ALLEGED WERE THESE: A LABORATORY HAD SHIPPED IN INTERSTATE
COMMERCE FROM CHICAGO, ILLINOIS, TO A CONSIGNEE AT ATLANTA, GEORGIA, A
NUMBER OF BOTTLES, EACH CONTAINING 1,000 SULFATHIAZOLE TABLETS.  THESE
BOTTLES HAD LABELS AFFIXED TO THEM, WHICH, AS REQUIRED BY SEC.
502(F)(1) AND (2) OF THE ACT, SET OUT ADEQUATE DIRECTIONS FOR THE USE
OF THE TABLETS AND ADEQUATE WARNINGS TO PROTECT ULTIMATE CONSUMERS FROM
DANGERS INCIDENT TO THIS USE.  FN2 RESPONDENT BOUGHT ONE OF THESE
PROPERLY LABELED BOTTLES OF SULFATHIAZOLE TABLETS FROM THE ATLANTA
CONSIGNEE, TRANSFERRED IT TO HIS COLUMBUS, GEORGIA, DRUGSTORE, AND
THERE HELD THE TABLETS FOR RESALE.  ON TWO SEPARATE OCCASIONS TWELVE
TABLETS WERE REMOVED FROM THE PROPERLY LABELED AND BRANDED BOTTLE,
PLACED IN PILL BOXES, AND SOLD TO CUSTOMERS.  THESE BOXES WERE LABELED
"SULFATHIAZOLE."  THEY DID NOT CONTAIN THE STATUTORILY REQUIRED
ADEQUATE DIRECTIONS FOR USE OR WARNINGS OF DANGER. 

RESPONDENT'S MOTION TO DISMISS THE INFORMATION WAS OVERRULED, A JURY
WAS WAIVED, EVIDENCE WAS HEARD, AND RESPONDENT WAS CONVICTED UNDER BOTH
COUNTS.  67 F.SUPP.  192. 

THE CIRCUIT COURT OF APPEALS REVERSED.  161 F.2D 629.  THE COURT
THOUGHT THAT AS A RESULT OF RESPONDENT'S ACTION THE SULFATHIAZOLE
BECAME "MISBRANDED" WITHIN THE MEANING OF THE FEDERAL ACT, AND THAT IN
ITS "BROADEST POSSIBLE SENSE" THE ACT'S LANGUAGE "MAY INCLUDE WHAT
HAPPENED."  HOWEVER, IT WAS ALSO OF THE OPINION THAT THE ACT OUGHT NOT
TO BE TAKEN SO BROADLY "BUT HELD TO APPLY ONLY TO THE HOLDING FOR THE
FIRST SALE BY THE IMPORTER AFTER INTERSTATE SHIPMENT."  THUS THE
CIRCUIT COURT OF APPEALS INTERPRETED THE STATUTORY LANGUAGE OF SEC.
301(K) "WHILE SUCH ARTICLE IS HELD FOR SALE AFTER SHIPMENT IN
INTERSTATE COMMERCE" AS THOUGH CONGRESS HAD SAID "WHILE SUCH ARTICLE IS
HELD FOR SALE BY A PERSON WHO HAD HIMSELF RECEIVED IT BY WAY OF A
SHIPMENT IN INTERSTATE COMMERCE."  WE GRANTED CERTIORARI TO REVIEW THIS
IMPORTANT QUESTION CONCERNING THE ACT'S COVERAGE.  332 U.S. 753. 

FIRST.  THE NARROW CONSTRUCTION GIVEN SEC. 301(K) RESTED NOT SO MUCH
UPON ITS LANGUAGE AS UPON THE CIRCUIT COURT'S VIEW OF THE CONSEQUENCES
THAT MIGHT RESULT FROM THE BROADER INTERPRETATION URGED BY THE
GOVERNMENT.  THE COURT POINTED OUT THAT THE RETAIL SALES HERE INVOLVED
WERE MADE IN COLUMBUS NINE MONTHS AFTER THIS SULFATHIAZOLE HAD BEEN
SHIPPED FROM CHICAGO TO ATLANTA.  IT WAS IMPRESSED BY THE FACT THAT, IF
THE STATUTORY LANGUAGE "WHILE SUCH ARTICLE IS HELD FOR SALE AFTER
SHIPMENT IN INTERSTATE COMMERCE" SHOULD BE GIVEN ITS LITERAL MEANING,
THE CRIMINAL PROVISIONS RELIED ON WOULD "APPLY TO ALL INTRASTATE SALES
OF IMPORTED DRUGS AFTER ANY NUMBER OF INTERMEDIATE SALES WITHIN THE
STATE AND AFTER ANY LAPSE OF TIME; AND NOT ONLY TO SUCH SALES OF DRUGS,
BUT ALSO TO SIMILAR RETAIL SALES OF FOODS, DEVICES AND COSMETICS, FOR
ALL THESE ARE EQUALLY COVERED BY THESE PROVISIONS OF THE ACT."  THE
COURT EMPHASIZED THAT SUCH CONSEQUENCES WOULD RESULT IN FAR-REACHING
INROADS UPON CUSTOMARY CONTROL BY LOCAL AUTHORITIES OF TRADITIONALLY
LOCAL ACTIVITIES, AND THAT A PURPOSE TO AFFORD LOCAL RETAIL PURCHASERS
FEDERAL PROTECTION FROM HARMFUL FOODS, DRUGS AND COSMETICS SHOULD NOT
BE ASCRIBED TO CONGRESS IN THE ABSENCE OF AN EXCEPTIONALLY CLEAR
MANDATE, CITING FEDERAL TRADE COMMISSION V. BUNTE BROS., 312 U.S. 349. 
ANOTHER REASON OF THE COURT FOR REFRAINING FROM CONSTRUING THE ACT AS
APPLICABLE TO ARTICLES MISBRANDED WHILE HELD FOR RETAIL SALE, EVEN
THOUGH THE ARTICLES HAD PREVIOUSLY BEEN SHIPPED IN INTERSTATE COMMERCE,
WAS ITS OPINION THAT SUCH A CONSTRUCTION WOULD RAISE GRAVE DOUBTS AS TO
THE ACT'S CONSTITUTIONALITY.  IN SUPPORT OF THIS POSITION THE COURT
CITED LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 30, AND
SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495. 

A RESTRICTIVE INTERPRETATION SHOULD NOT BE GIVEN A STATUTE MERELY
BECAUSE CONGRESS HAS CHOSEN TO DEPART FROM CUSTOM OR BECAUSE GIVING
EFFECT TO THE EXPRESS LANGUAGE EMPLOYED BY CONGRESS MIGHT REQUIRE A
COURT TO FACE A CONSTITUTIONAL QUESTION.  AND NONE OF THE FOREGOING
CASES, NOR ANY OTHER ON WHICH THEY RELIED, AUTHORIZES A COURT IN
INTERPRETING A STATUTE TO DEPART FROM ITS CLEAR MEANING.  WHEN IT IS
REASONABLY PLAIN THAT CONGRESS MEANT ITS ACT TO PROHIBIT CERTAIN
CONDUCT, NO ONE OF THE ABOVE REFERENCES JUSTIFIES A DISTORTION OF THE
CONGRESSIONAL PURPOSE, NOT EVEN IF THE CLEARLY CORRECT PURPOSE MAKES
MARKED DEVIATIONS FROM CUSTOM OR LEADS INEVITABLY TO A HOLDING OF
CONSTITUTIONAL INVALIDITY.  ALTHOUGH CRIMINAL STATUTES MUST BE SO
PRECISE AND UNAMBIGUOUS THAT THE ORDINARY PERSON CAN KNOW HOW TO AVOID
UNLAWFUL CONDUCT, SEE KRAUS & BROS., INC. V. UNITED STATES, 327 U.S.
614, 621-622, EVEN IN DETERMINING WHETHER SUCH STATUTES MEET THAT TEST,
THEY SHOULD BE GIVEN THEIR FAIR MEANING IN ACCORD WITH THE EVIDENT
INTENT OF CONGRESS.  UNITED STATES V. RAYNOR 302 U.S. 540, 552. 

SECOND.  ANOTHER CONSIDERATION THAT MOVED THE CIRCUIT COURT OF
APPEALS TO GIVE THE STATUTE A NARROW CONSTRUCTION WAS ITS BELIEF THAT
THE HOLDING IN THIS CASE WITH REFERENCE TO MISBRANDING OF DRUGS BY A
RETAIL DRUGGIST WOULD NECESSARILY APPLY ALSO TO "SIMILAR RETAIL SALES
OF FOODS, DEVICES AND COSMETICS, FOR ALL OF THESE," THE COURT SAID,
"ARE EQUALLY COVERED BY THE SAME PROVISIONS OF THE ACT."  AND IN THIS
COURT THE EFFECT OF SUCH A POSSIBLE COVERAGE OF THE ACT IS GRAPHICALLY
MAGNIFIED.  WE ARE TOLD THAT ITS APPLICATION TO THESE LOCAL SALES OF
SULFATHIAZOLE WOULD LOGICALLY REQUIRE ALL RETAIL GROCERS AND BEAUTY
PARLOR OPERATORS TO REPRODUCE THE BULK CONTAINER LABELS ON EACH
INDIVIDUAL ITEM WHEN IT IS TAKEN FROM THE CONTAINER TO SELL TO A
PURCHASER.  IT IS EVEN PROPHESIED THAT, IF SEC. 301(K) IS GIVEN THE
INTERPRETATION URGED BY THE GOVERNMENT, IT WILL LATER BE APPLIED SO AS
TO REQUIRE RETAIL MERCHANTS TO LABEL STICKS OF CANDY AND SARDINES WHEN
REMOVED FROM THEIR CONTAINERS FOR SALE. 

THE SCOPE OF THE OFFENSE WHICH CONGRESS DEFINED IS NOT TO BE
JUDICIALLY NARROWED AS APPLIED TO DRUGS BY ENVISIONING EXTREME POSSIBLE
APPLICATIONS OF ITS DIFFERENT MISBRANDING PROVISIONS WHICH RELATE TO
FOOD, COSMETICS, AND THE LIKE.  THERE WILL BE OPPORTUNITY ENOUGH TO
CONSIDER SUCH CONTINGENCIES SHOULD THEY EVER ARISE.  IT MAY NOW BE
NOTED, HOWEVER, THAT THE ADMINISTRATOR OF THE ACT IS GIVEN RATHER BROAD
DISCRETION - BROAD ENOUGH UNDOUBTEDLY TO ENABLE HIM TO PERFORM HIS
DUTIES FAIRLY WITHOUT WASTING HIS EFFORTS ON WHAT MAY BE NO MORE THAN
TECHNICAL INFRACTIONS OF LAW.  AS AN ILLUSTRATION OF THE
ADMINISTRATOR'S DISCRETION, SEC. 306 PERMITS HIM TO EXCUSE MINOR
VIOLATIONS WITH A WARNING IF HE BELIEVES THAT THE PUBLIC INTEREST WILL
THEREBY BE ADEQUATELY SERVED.  AND THE ADMINISTRATOR IS GIVEN EXTENSIVE
AUTHORITY UNDER SECS. 405, 503 AND 603 TO ISSUE REGULATIONS EXEMPTING
FROM THE LABELING REQUIREMENTS MANY ARTICLES THAT OTHERWISE WOULD FALL
WITHIN THIS PORTION OF THE ACT.  THE PROVISIONS OF SEC. 405 WITH REGARD
TO FOOD APPARENTLY ARE BROAD ENOUGH TO PERMIT THE RELAXATION OF SOME OF
THE LABELING REQUIREMENTS WHICH MIGHT OTHERWISE IMPOSE A BURDEN ON
RETAILERS OUT OF PROPORTION TO THEIR VALUE TO THE CONSUMER. 

THIRD.  WHEN WE SEEK THE MEANING OF SEC. 301(K) FROM ITS LANGUAGE WE
FIND THAT THE OFFENSE IT CREATES AND WHICH IS HERE CHARGED REQUIRES THE
DOING OF SOME ACT WITH RESPECT TO A DRUG (1) WHICH RESULTS IN ITS BEING
MISBRANDED, (2) WHILE THE ARTICLE IS HELD FOR SALE "AFTER SHIPMENT IN
INTERSTATE COMMERCE."  RESPONDENT HAS NOT SERIOUSLY CONTENDED THAT THE
"MISBRANDED" PORTION OF SEC. 301(K) IS AMBIGUOUS.  SECTION 502(F), AS
HAS BEEN SEEN, PROVIDES THAT A DRUG IS MISBRANDED UNLESS THE LABELING
CONTAINS ADEQUATE DIRECTIONS AND ADEQUATE WARNINGS.  THE LABELING HERE
DID NOT CONTAIN THE INFORMATION WHICH SEC. 502(F) REQUIRES.  THERE IS A
SUGGESTION HERE THAT, ALTHOUGH ALTERATION, MUTILATION, DESTRUCTION, OR
OBLITERATION OF THE BOTTLE LABEL WOULD HAVE BEEN A "MISBRANDING,"
TRANSFERRING THE PILLS TO NON-BRANDED BOXES WOULD NOT HAVE BEEN, SO
LONG AS THE LABELING ON THE EMPTY BOTTLE WAS NOT DISTURBED.  SUCH AN
ARGUMENT CANNOT BE SUSTAINED.  FOR THE CHIEF PURPOSE OF FORBIDDING THE
DESTRUCTION OF THE LABEL IS TO KEEP IT INTACT FOR THE INFORMATION AND
PROTECTION OF THE CONSUMER.  THAT PURPOSE WOULD BE FRUSTRATED WHEN THE
PILLS THE CONSUMER BUYS ARE NOT LABELED AS REQUIRED, WHETHER THE LABEL
HAS BEEN TORN FROM THE ORIGINAL CONTAINER OR THE PILLS HAVE BEEN
TRANSFERRED FROM IT TO A NON-LABELED ONE.  WE FIND NO AMBIGUITY IN THE
MISBRANDING LANGUAGE OF THE ACT. 

FURTHERMORE, IT WOULD REQUIRE GREAT INGENUITY TO DISCOVER AMBIGUITY
IN THE ADDITIONAL REQUIREMENT OF SEC. 301(K) THAT THE MISBRANDING OCCUR
"WHILE SUCH ARTICLE IS HELD FOR SALE AFTER SHIPMENT IN INTERSTATE
COMMERCE."  THE WORDS ACCURATELY DESCRIBE RESPONDENT'S CONDUCT HERE. 
HE HELD THE DRUGS FOR SALE AFTER THEY HAD BEEN SHIPPED IN INTERSTATE
COMMERCE FROM CHICAGO TO ATLANTA.  IT IS TRUE THAT RESPONDENT BOUGHT
THEM OVER SIX MONTHS AFTER THE INTERSTATE SHIPMENT HAD BEEN COMPLETED
BY THEIR DELIVERY TO ANOTHER CONSIGNEE.  BUT THE LANGUAGE USED BY
CONGRESS BROADLY AND UNQUALIFIEDLY PROHIBITS MISBRANDING ARTICLES HELD
FOR SALE AFTER SHIPMENT IN INTERSTATE COMMERCE, WITHOUT REGARD TO HOW
LONG AFTER THE SHIPMENT THE MISBRANDING OCCURRED, HOW MANY INTRASTATE
SALES HAD INTERVENED, OR WHO HAD RECEIVED THE ARTICLES AT THE END OF
THE INTERSTATE SHIPMENT.  ACCORDINGLY WE FIND THAT THE CONDUCT OF THE
RESPONDENT FALLS WITHIN THE LITERAL LANGUAGE OF SEC. 301(K). 

FOURTH.  GIVEN THE MEANING THAT WE HAVE FOUND THE LITERAL LANGUAGE OF
SEC. 301(K) TO HAVE, IT IS THOROUGHLY CONSISTENT WITH THE GENERAL AIMS
AND PURPOSES OF THE ACT.  FOR THE ACT AS A WHOLE WAS DESIGNED PRIMARILY
TO PROTECT CONSUMERS FROM DANGEROUS PRODUCTS.  THIS COURT SO RECOGNIZED
IN UNITED STATES V. DOTTERWEICH, 320 U.S. 277, 282, AFTER REVIEWING THE
HOUSE AND SENATE COMMITTEE REPORTS ON THE BILL THAT BECAME LAW.  ITS
PURPOSE WAS TO SAFEGUARD THE CONSUMER BY APPLYING THE ACT TO ARTICLES
FROM THE MOMENT OF THEIR INTRODUCTION INTO INTERSTATE COMMERCE ALL THE
WAY TO THE MOMENT OF THEIR DELIVERY TO THE ULTIMATE CONSUMER.  SECTION
301(A) FORBIDS THE "INTRODUCTION OR DELIVERY FOR INTRODUCTION INTO
INTERSTATE COMMERCE" OF MISBRANDED OR ADULTERATED DRUGS; SEC. 301(B)
FORBIDS THE MISBRANDING OR ADULTERATION OF DRUGS WHILE "IN INTERSTATE
COMMERCE"; AND SEC. 301(C) PROHIBITS THE "RECEIPT IN INTERSTATE
COMMERCE" OF ANY MISBRANDED OR ADULTERATED DRUG, AND "THE DELIVERY OR
PROFFERED DELIVERY THEREOF FOR PAY OR OTHERWISE."  BUT THESE THREE
PARAGRAPHS ALONE WOULD NOT SUPPLY PROTECTION ALL THE WAY TO THE
CONSUMER.  THE WORDS OF PARAGRAPH (K) "WHILE SUCH ARTICLE IS HELD FOR
SALE AFTER SHIPMENT IN INTERSTATE COMMERCE" APPARENTLY WERE DESIGNED TO
FILL THIS GAP AND TO EXTEND THE ACT'S COVERAGE TO EVERY ARTICLE THAT
HAD GONE THROUGH INTERSTATE COMMERCE UNTIL IT FINALLY REACHED THE
ULTIMATE CONSUMER.  DOUBTLESS IT WAS THIS PURPOSE TO INSURE FEDERAL
PROTECTION UNTIL THE VERY MOMENT THE ARTICLES PASSED INTO THE HANDS OF
THE CONSUMER BY WAY OF AN INTRASTATE TRANSACTION THAT MOVED THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE TO REPORT ON THIS SECTION
OF THE ACT AS FOLLOWS:  "IN ORDER TO EXTEND THE PROTECTION OF CONSUMERS
CONTEMPLATED BY THE LAW TO THE FULL EXTENT CONSTITUTIONALLY POSSIBLE,
PARAGRAPH (K) HAS BEEN INSERTED PROHIBITING THE CHANGING OF LABELS SO
AS TO MISBRAND ARTICLES HELD FOR SALE AFTER INTERSTATE SHIPMENT."  N3
WE HOLD THAT SEC. 301(K) PROHIBITS THE MISBRANDING CHARGED IN THE
INFORMATION. 

FIFTH.  IT IS CONTENDED THAT THE ACT AS WE HAVE CONSTRUED IT IS
BEYOND ANY AUTHORITY GRANTED CONGRESS BY THE CONSTITUTION AND THAT IT
INVADES THE POWERS RESERVED TO THE STATES.  A SIMILAR CHALLENGE WAS
MADE AGAINST THE PURE FOOD AND DRUGS ACT OF 1906, 34 STAT. 768, AND
REJECTED, IN MCDERMOTT V. WISCONSIN, 228 U.S. 115.  THAT ACT DID NOT
CONTAIN SEC. 301(K), BUT IT DID PROHIBIT MISBRANDING AND AUTHORIZED
SEIZURE OF MISBRANDED ARTICLES AFTER THEY WERE SHIPPED FROM ONE STATE
TO ANOTHER, SO LONG AS THEY REMAINED "UNSOLD."  THE AUTHORITY OF
CONGRESS TO MAKE THIS REQUIREMENT WAS UPHELD AS A PROPER EXERCISE OF
ITS POWERS UNDER THE COMMERCE CLAUSE.  THERE ARE TWO VARIANTS BETWEEN
THE CIRCUMSTANCES OF THAT CASE AND THIS ONE.  IN THE MCDERMOTT CASE THE
LABELS INVOLVED WERE ON THE ORIGINAL CONTAINERS; HERE THE LABELS ARE
REQUIRED TO BE PUT ON OTHER THAN THE ORIGINAL CONTAINERS - THE BOXES TO
WHICH THE TABLETS WERE TRANSFERRED.  ALSO, IN THE MCDERMOTT CASE THE
POSSESSOR OF THE LABELED CANS HELD FOR SALE HAD HIMSELF RECEIVED THEM
BY WAY OF AN INTERSTATE SALE AND SHIPMENT; HERE, WHILE THE PETITIONER
HAD RECEIVED THE SULFATHIAZOLE BY WAY OF AN INTRASTATE SALE AND
SHIPMENT, HE BOUGHT IT FROM A WHOLESALER WHO HAD RECEIVED IT AS THE
DIRECT CONSIGNEE OF AN INTERSTATE SHIPMENT.  THESE VARIANTS ARE NOT
SUFFICIENT WE THINK TO DETRACT FROM THE APPLICABILITY OF THE MCDERMOTT
HOLDING TO THE PRESENT DECISION.  IN BOTH CASES ALIKE THE QUESTION
RELATES TO THE CONSTITUTIONAL POWER OF CONGRESS UNDER THE COMMERCE
CLAUSE TO REGULATE THE BRANDING OF ARTICLES THAT HAVE COMPLETED AN
INTERSTATE SHIPMENT AND ARE BEING HELD FOR FUTURE SALES IN PURELY LOCAL
OR INTRASTATE COMMERCE.  THE REASONS GIVEN FOR THE MCDERMOTT HOLDING
THEREFORE ARE EQUALLY APPLICABLE AND PERSUASIVE HERE.  AND MANY CASES
DECIDED SINCE THE MCDERMOTT DECISION LEND SUPPORT TO THE VALIDITY OF
SEC. 301(K).  SEE, E.G., UNITED STATES V. WALSH, 331 U.S. 432; WICKARD
V. FILBURN, 317 U.S. 111; UNITED STATES V. WRIGHTWOOD DAIRY CO., 315
U.S. 110; UNITED STATES V. DARBY, 312 U.S. 100; SEE UNITED STATES V.
OLSEN, 161 F.2D 669.  REVERSED. 

FN1  "SEC.  301.  THE FOLLOWING ACTS AND THE CAUSING THEREOF ARE
HEREBY PROHIBITED: 

     .         .    .         .         . 

"(K)  THE ALTERATION, MUTILATION, DESTRUCTION, OBLITERATION, OR
REMOVAL OF THE WHOLE OR ANY PART OF THE LABELING OF, OR THE DOING OF
ANY OTHER ACT WITH RESPECT TO, A FOOD, DRUG, DEVICE, OR COSMETIC, IF
SUCH ACT IS DONE WHILE SUCH ARTICLE IS HELD FOR SALE AFTER SHIPMENT IN
INTERSTATE COMMERCE AND RESULTS IN SUCH ARTICLE BEING MISBRANDED."  52
STAT. 1042, 21 U.S.C. SEC. 331(K). 

FN2  THE FOLLOWING INSCRIPTION APPEARED ON THE BOTTLE LABELS AS A
COMPLIANCE WITH SEC. 502(F)(1) WHICH REQUIRES DIRECTIONS AS TO USE:
"CAUTION.  - TO BE USED ONLY BY OR ON THE PRESCRIPTION OF A
PHYSICIAN."  THIS WOULD APPEAR TO CONSTITUTE ADEQUATE DIRECTIONS SINCE
IT IS REQUIRED BY REGULATION ISSUED BY THE ADMINISTRATOR PURSUANT TO
AUTHORITY OF THE ACT.  21 C.F.R. CUM. SUPP. SEC. 2.106(B)(3).  THE
FOLLOWING APPEARED ON THE LABEL OF THE BOTTLES AS A COMPLIANCE WITH
SEC. 502(F)(2) WHICH REQUIRES WARNINGS OF DANGER:  "WARNING.  - IN SOME
INDIVIDUALS SULFATHIAZOLE MAY CAUSE SEVERE TOXIC REACTIONS.  DAILY
BLOOD COUNTS FOR EVIDENCE OF ANEMIA OR LEUKOPENIA AND URINE
EXAMINATIONS FOR HEMATURIA ARE RECOMMENDED. 

"PHYSICIANS SHOULD FAMILIARIZE THEMSELVES WITH THE USE OF THIS
PRODUCT BEFORE IT IS ADMINISTERED.  A CIRCULAR GIVING FULL DIRECTIONS
AND CONTRAINDICATIONS WILL BE FURNISHED UPON REQUEST." 

FN3  H.R. REP. 2139, 75TH CONG., 3D SESS., 3. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

THIS CASE HAS BEEN PRESENTED AS IF THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT OF 1938 HAD POSED AN INESCAPABLE DILEMMA.  IT IS SAID THAT
WE MUST EITHER (1) IGNORE CONGRESS' OBVIOUS INTENTION TO PROTECT
ULTIMATE CONSUMERS OF DRUGS THROUGH LABELING REQUIREMENTS LITERALLY AND
PLAINLY MADE APPLICABLE TO THE SALES IN THIS CASE OR (2) MAKE CRIMINAL
EVERY CORNER GROCER WHO TAKES A STICK OF CANDY FROM A PROPERLY LABELED
CONTAINER AND SELLS IT TO A CHILD WITHOUT WRAPPING IT IN A SIMILAR
LABEL. 

THE TROUBLE-MAKING FACTOR IS NOT FOUND IN THE STATUTE'S PROVISIONS
RELATING SPECIFICALLY TO DRUGS.  THOSE PROVISIONS TAKEN BY THEMSELVES
ARE CLEAR AND UNEQUIVOCAL IN THE EXPRESSED PURPOSE TO PROTECT THE
ULTIMATE CONSUMER BY THE LABELING REQUIREMENTS.  SO IS THE LEGISLATIVE
HISTORY.  STANDING ALONE, THEREFORE, THE DRUG PROVISIONS WOULD COVER
THIS CASE WITHOUT ROOM FOR SERIOUS QUESTION. 

HOWEVER, THOSE PROVISIONS DO NOT STAND ENTIRELY SEPARATE AND
INDEPENDENT IN THE ACT'S STRUCTURE.  IN SOME RESPECTS, PARTICULARLY IN
SEC. 301(K), THEY ARE INTERLACED WITH PROVISIONS AFFECTING FOOD AND
COSMETICS.  AND FROM THIS FACT IS DRAWN THE CONCLUSION THAT THIS
DECISION NECESSARILY WILL CONTROL FUTURE DECISIONS CONCERNING THOSE
VERY DIFFERENT COMMODITIES. 

IF THE STATUTE AS WRITTEN REQUIRED THIS, FURNISHING NO SUBSTANTIAL
BASIS FOR DIFFERENTIATING SUCH CASES, THE DECISION HERE WOULD BE MORE
DIFFICULT THAN I CONCEIVE IT TO BE.  BUT I DO NOT THINK THE STATUTE HAS
LAID THE TRAP WITH WHICH WE ARE SAID TO BE FACED.  ONLY AN
OVERSIMPLIFIED VIEW OF ITS TERMS AND EFFECTS COULD PRODUCE THAT
RESULT. 

THE ACT IS LONG AND COMPLICATED.  ITS NUMEROUS PROVISIONS TREAT THE
VERY DIFFERENT SUBJECTS OF DRUGS, FOOD AND COSMETICS ALIKE IN SOME
RESPECTS, DIFFERENTLY IN OTHERS.  THE DIFFERENCES ARE AS IMPORTANT AS
THE SIMILARITIES, AND CANNOT BE IGNORED.  MORE IS NECESSARY FOR
CONSTRUCTION OF THE STATUTE THAN LOOKING MERELY TO THE TERMS OF SECS.
301(K) AND 502(F). 

IT IS TRUE THAT SEC. 301(K) DEALS INDISCRIMINATELY WITH FOOD, DRUGS,
DEVICES AND COSMETICS, ON THE SURFACE OF ITS TERMS ALONE.  HENCE IT IS
SAID THAT THE TRANSFER OF SULFATHIAZOLE, A HIGHLY DANGEROUS DRUG, FROM
A BULK CONTAINER TO A SMALL BOX FOR RETAIL SALE, COULD NOT BE "ANY
OTHER ACT" UNLESS A SIMILAR TRANSFER OF CANDIES, USUALLY HARMLESS, ALSO
WOULD BE "ANY OTHER ACT."  FROM THIS HYPOTHESIS IT IS THEN CONCLUDED
THAT THE PHRASE MUST BE INTERPRETED WITH REFERENCE TO THE
PARTICULARITIES WHICH PRECEDE IT, NAMELY, "ALTERATION, MUTILATION,
DESTRUCTION, OBLITERATION OR REMOVAL" OF ANY PART OF THE LABEL, AND
MUST BE LIMITED BY THOSE PARTICULARITIES. 

THAT CONSTRUCTION ALMOST, IF NOT QUITE, REMOVES "ANY OTHER ACT" FROM
THE SECTION.  AND BY DOING SO IT GOES FAR TO EMASCULATE THE SECTION'S
EFFECTIVE ENFORCEMENT, ESPECIALLY IN RELATION TO DRUGS.  ANY DEALER
HOLDING DRUGS FOR SALE AFTER SHIPMENT IN INTERSTATE COMMERCE COULD
AVOID THE STATUTE'S EFFECT SIMPLY BY LEAVING THE LABEL INTACT, REMOVING
THE CONTENTS FROM THE BULK CONTAINER, AND SELLING THEM, HOWEVER DEADLY,
IN BROKEN PARCELS WITHOUT LABEL OR WARNING. 

I DO NOT THINK CONGRESS MEANT THE PHRASE TO BE SO DISASTROUSLY
LIMITED.  FOR THE "DOING OF ANY OTHER ACT WITH RESPECT TO, A FOOD,
DRUG, DEVICE, OR COSMETIC" IS PROHIBITED BY SEC. 301(K) ONLY "IF SUCH
ACT  ...  RESULTS IN SUCH ARTICLE BEING MISBRANDED."  AND THE STATUTE
PROVIDES, NOT A SINGLE COMMON DEFINITION OF MISBRANDING FOR FOODS,
DRUGS AND COSMETICS, BUT SEPARATE AND DIFFERING SECTIONS ON MISBRANDED
FOODS, MISBRANDED DRUGS AND DEVICES, AND MISBRANDED COSMETICS.  SECS.
403, 502, 602. 

THE TERM "MISBRANDED" AS USED IN SEC. 301(K) THEREFORE IS NOT ONE OF
UNIFORM CONNOTATION.  ON THE CONTRARY, ITS MEANING IS VARIABLE IN
RELATION TO THE DIFFERENT COMMODITIES AND THE SECTIONS DEFINING THEIR
MISBRANDING.  SO ALSO NECESSARILY IS THE MEANING OF "ANY OTHER ACT,"
WHICH PRODUCES THOSE MISBRANDING CONSEQUENCES.  EACH OF THE THREE
MEANING AND INTENDED SCOPE OF APPLICATION FOR SEC. 301(K) IN RELATION
TO THE SPECIFIC TYPE OF COMMODITY INVOLVED IN THE PARTICULAR SALE, IF
CONGRESS' WILL IS NOT TO BE OVERRIDDEN BY BROADSIDE GENERALIZATION
GLOSSED UPON THE STATUTE.  AS MIGHT HAVE BEEN EXPECTED, CONGRESS DID
NOT LUMP FOOD, DRUGS AND COSMETICS IN ONE INDISCRIMINATE HOPPER FOR THE
PURPOSE OF APPLYING SEC. 301(K), EITHER IN RESPECT TO MISBRANDING OR AS
TO "ANY OTHER ACT" WHICH PRODUCES THAT CONSEQUENCE.  BRIEF REFERENCE TO
THE SEVERAL MISBRANDING SECTIONS INCORPORATED BY REFERENCE IN SEC.
301(K) SUBSTANTIATES THIS CONCLUSION. 

THE THREE SECTIONS CONTAIN SOME COMMON PROVISIONS.  FN1 BUT THE FACT
THAT EACH SECTION IS ALSO DIFFERENT FROM THE OTHER TWO IN IMPORTANT
RESPECTS INDICATES THAT EACH BROAD SUBDIVISION OF THE ACT PRESENTS
DIFFERENT PROBLEMS OF INTERPRETATION.  NEITHER THE MISBRANDED FOODS
DIRECTLY COMPARABLE TO SEC. 502(F), WHICH THE RESPONDENT HERE HAS
VIOLATED.  THAT SECTION, HOWEVER, IS TO BE CONTRASTED WITH SEC. 403(K),
ONE OF THE SUBSECTIONS DEALING WITH MISBRANDED FOODS.  COMPARISON OF
THE TWO PROVISIONS INDICATES THAT THE DOING OF A PARTICULAR ACT WITH
RESPECT TO A DRUG MAY RESULT IN MISBRANDING, WHEREAS THE SAME METHOD OF
SELLING FOOD WOULD BE PROPER. 

MISBRANDED: 

"UNLESS ITS LABELING BEARS (1) ADEQUATE DIRECTIONS FOR USE; AND (2)
SUCH ADEQUATE WARNINGS AGAINST USE IN THOSE PATHOLOGICAL CONDITIONS OR
BY CHILDREN WHERE ITS USE MAY BE DANGEROUS TO HEALTH, OR AGAINST UNSAFE
DOSAGE OR METHODS OR DURATION OF ADMINISTRATION OR APPLICATION, IN SUCH
MANNER AND FORM, AS ARE NECESSARY FOR THE PROTECTION OF USERS:
PROVIDED, THAT WHERE ANY REQUIREMENT OF CLAUSE (1) OF THIS PARAGRAPH,
AS APPLIED TO ANY DRUG OR DEVICE, IS NOT NECESSARY FOR THE PROTECTION
OF THE PUBLIC HEALTH, THE ADMINISTRATOR SHALL PROMULGATE REGULATIONS
EXEMPTING SUCH DRUG OR DEVICE FROM SUCH REQUIREMENT." 

THIS PROVISION, DEALING WITH DIRECTIONS FOR USE AND WARNINGS AGAINST
IMPROPER USE, IN TERMS IS DESIGNED "FOR THE PROTECTION OF USERS."  TO
BE EFFECTIVE, THIS PROTECTION REQUIRES REGULATION OF THE LABEL WHICH
THE CONTAINER BEARS WHEN THE DRUG REACHES THE ULTIMATE CONSUMER.  FN2
THE LEGISLATIVE HISTORY LEAVES NO DOUBT THAT THE DRAFTSMEN AND SPONSORS
REALIZED THE IMPORTANCE OF HAVING DANGEROUS DRUGS PROPERLY LABELED AT
THE TIME OF USE, NOT JUST AT THE TIME OF SALE.  FN3 THE INTENT TO
PROTECT THE PUBLIC HEALTH IS FURTHER EMPHASIZED BY THE LIMITED SCOPE OF
THE PROVISO, WHICH DIRECTS THE ADMINISTRATOR TO MAKE EXEMPTIONS ONLY
WHEN COMPLIANCE WITH CLAUSE (1) "IS NOT NECESSARY FOR THE PROTECTION OF
THE PUBLIC HEALTH." 

RETAIL GROCER A CRIMINAL," IS VERY DIFFERENT.  BY ITS TERMS FOOD IS
DEEMED TO BE MISBRANDED: 

"IF IT BEARS OR CONTAINS ANY ARTIFICIAL FLAVORING, ARTIFICIAL
COLORING, OR CHEMICAL PRESERVATIVE, UNLESS IT BEARS LABELING STATING
THAT FACT:  PROVIDED, THAT TO THE EXTENT THAT COMPLIANCE WITH THE
REQUIREMENTS OF THIS PARAGRAPH IS IMPRACTICABLE, EXEMPTIONS SHALL BE
ESTABLISHED BY REGULATIONS PROMULGATED BY THE ADMINISTRATOR.  THE
PROVISIONS OF THIS PARAGRAPH AND PARAGRAPHS (G) AND (I) WITH RESPECT TO
ARTIFICIAL COLORING SHALL NOT APPLY IN THE CASE OF BUTTER, CHEESE, OR
ICE CREAM." 

THE SECTION, IN CONTRAST TO SEC. 502(F)'S COMPREHENSIVE COVERAGE OF
DRUGS, APPLIES NOT TO ALL FOODS SHIPPED INTERSTATE, BUT ONLY TO THE
RESTRICTED CLASSES CONTAINING ARTIFICIAL FLAVORING, OR COLORING, OR
CHEMICAL PRESERVATIVES.  THE LABELING REQUIREMENT IS MUCH SIMPLER.  AND
THE PROVISO CONFERS A MUCH BROADER POWER OF EXEMPTION UPON THE
ADMINISTRATOR THAN DOES THE PROVISO OF SEC. 502(F).  UNDER THE LATTER
HE IS GIVEN NO POWER TO EXEMPT ON THE GROUND THAT COMPLIANCE IS
IMPRACTICABLE.  HE CANNOT WEIGH BUSINESS CONVENIENCE AGAINST PROTECTION
OF THE PUBLIC HEALTH.  ONLY WHERE HE FINDS THAT LABELING IS NOT
NECESSARY TO THAT PROTECTION IS HE AUTHORIZED TO CREATE AN EXEMPTION
FOR DRUGS AND DEVICES.  HEALTH SECURITY IS NOT ONLY THE FIRST, IT IS
THE EXCLUSIVE CRITERION. 

UNDER SEC. 403(K), HOWEVER, IN DEALING WITH FOODS THE ADMINISTRATOR
CAN DISPENSE WITH LABELS MUCH MORE BROADLY.  IN TERMS THE CRITERION FOR
HIS ACTION BECOMES "THE EXTENT THAT COMPLIANCE ...  IS IMPRACTICABLE"
RATHER THAN, AS UNDER SEC. 502(F), "WHERE ANY REQUIREMENT OF CLAUSE
(1)(ADEQUATE DIRECTIONS FOR USE)  ...  IS NOT NECESSARY FOR THE
PROTECTION OF THE PUBLIC HEALTH."  PRACTICAL CONSIDERATIONS AFFECTING
THE BURDEN OF COMPLIANCE BY MANUFACTURERS AND RETAILERS, IRRELEVANT
UNDER SEC. 502(F), BECOME CONTROLLING UNDER SEC. 403(K).  THUS UNDER
THE STATUTE'S INTENT A MUCH MORE RIGID AND INVARIABLE COMPLIANCE WITH
THE LABELING REQUIREMENTS FOR DRUGS IS CONTEMPLATED THAN FOR THOSE WITH
FOODS, APART FROM ITS GREATLY NARROWER COVERAGE OF THE LATTER.  AND THE
DIFFICULTY OF COMPLIANCE WITH THOSE REQUIREMENTS FOR SUCH ARTICLES AS
CANDIES EXPLAINS THE DIFFERENCE IN THE TWO PROVISOS.  FN4 

THESE DIFFERENCES, AND PARTICULARLY THE DIFFERENCES IN THE PROVISOS,
HAVE A DIRECT AND AN INTENDED RELATION TO THE PROBLEM OF ENFORCEMENT. 
THE LABELING REQUIREMENTS FOR FOODS ARE GIVEN MUCH NARROWER AND MORE
SELECTIVE SCOPE FOR APPLICATION THAN THOSE FOR DRUGS, A DIFFERENCE
MAGNIFIED BY THE CONVERSELY DIFFERING ROOM ALLOWED FOR EXEMPTIONS. 
WHAT IS PERHAPS EQUALLY IMPORTANT, THE PROVISOS ARE RELEVANT TO
ENFORCEMENT BEYOND SPECIFIC ACTION TAKEN BY THE ADMINISTRATOR TO CREATE
EXEMPTIONS. 

HIS DUTY UNDER BOTH SECTIONS IS CAST IN MANDATORY TERMS.  WHETHER OR
NOT HE CAN BE FORCED BY MANDAMUS TO ACT IN CERTAIN SITUATIONS, HIS
FAILURE TO ACT IN SOME WOULD SEEM TO BE CLEARLY IN VIOLATION OF HIS
DUTY.  OBVIOUSLY THERE MUST BE MANY MORE INSTANCES WHERE COMPLIANCE
WITH THE LABELING REQUIREMENTS FOR FOODS WILL BE "IMPRACTICABLE" THAN
WHERE COMPLIANCE WITH THE VERY DIFFERENT REQUIREMENTS FOR DRUGS WILL
NOT BE "NECESSARY FOR THE PROTECTION OF THE PUBLIC HEALTH."  THAT
DIFFERENCE IS OBVIOUSLY IMPORTANT FOR ENFORCEMENT, PARTICULARLY BY
CRIMINAL PROSECUTION.  I THINK IT IS ONE WHICH COURTS ARE ENTITLED TO
TAKE INTO ACCOUNT WHEN CALLED UPON TO PUNISH VIOLATIONS.  THE AUTHORS
OF THE LEGISLATION RECOGNIZED EXPRESSLY THAT "TECHNICAL, INNOCENT
VIOLATIONS  ...  WILL FREQUENTLY ARISE."  S. REP. NO. 152, 75TH CONG.,
1ST SESS. 4.  IN OTHER WORDS, THERE WILL BE CONDUCT WHICH MAY BE
PROHIBITED BY THE ACT'S LITERAL WORDING, BUT WHICH NEVERTHELESS SHOULD
BE IMMUNE TO PROSECUTION.    WHEN THAT SITUATION ARISES, AS IT OFTEN
MAY WITH REFERENCE TO FOODS, BY VIRTUE OF THE ADMINISTRATOR'S FAILURE
TO DISCHARGE HIS DUTY TO CREATE EXEMPTIONS BEFORE THE DEALER'S
QUESTIONED ACTION TAKES PLACE, THAT FAILURE IN MY JUDGMENT IS A MATTER
FOR THE COURT'S CONSIDERATION IN DETERMINING WHETHER PROSECUTION SHOULD
PROCEED.  WHENEVER IT IS MADE TO APPEAR THAT THE VIOLATION IS A
"TECHNICAL, INNOCENT" ONE, AN ACT FOR WHICH THE ADMINISTRATOR SHOULD
HAVE MADE EXEMPTION AS REQUIRED BY SEC. 403(K), THE PROSECUTION SHOULD
BE STOPPED.  THIS COURT HAS NOT HESITATED TO DIRECT RETROACTIVE
ADMINISTRATIVE DETERMINATION OF PRIVATE RIGHTS WHEN THAT UNUSUAL COURSE
SEEMED TO IT THE APPROPRIATE SOLUTION FOR THEIR DETERMINATION.  ADDISON
V. HOLLY HILL FRUIT PRODUCTS, 322 U.S. 607.  IF THAT IS PERMISSIBLE IN
CIVIL LITIGATION, THERE IS MUCH GREATER REASON FOR THE ANALOGOUS STEP
OF TAKING INTO ACCOUNT IN A CRIMINAL PROSECUTION AN ADMINISTRATIVE
OFFICER'S FAILURE TO ACT WHEN THE COMMANDED ACTION, IF TAKEN, WOULD
HAVE MADE PROSECUTION IMPOSSIBLE. 

IT IS CLEAR THEREFORE THAT THE CORNER GROCER OCCUPIES NO SUCH
POSITION OF JEOPARDY UNDER THIS LEGISLATION AS THE DRUGGIST, AND THAT
THE MEANING OF SEC. 301(K) IS NOT IDENTICAL FOR THE TWO, EITHER AS TO
WHAT AMOUNTS TO MISBRANDING OR AS TO WHAT IS "THE DOING OF ANY  ...
ACT" CREATING THAT RESULT.  THE SUPPOSED DILEMMA IS FALSE.  CONGRESS
HAD POWER TO IMPOSE THE DRUG RESTRICTIONS, THEY ARE CLEARLY APPLICABLE
TO THIS CASE, THE DECISION DOES NOT RULE THE CORNER GROCER SELLING
CANDY, AND THE JUDGMENT SHOULD BE REVERSED.  I THEREFORE JOIN IN THE
COURT'S JUDGMENT AND OPINION TO THAT EFFECT. 

FN1  E.G., SECS. 403(A), 502(A) AND 602(A) ARE IN IDENTICAL
LANGUAGE. 

FN2  SEE S. REP. NO. 361, 74TH CONG., 1ST SESS. 19. 

FN3  SEE H.R. REP. NO. 2139, 75TH CONG., 3D SESS. 8. 

FN4  "THE PROVISO OF THIS PARAGRAPH LIKEWISE REQUIRES THE
ESTABLISHMENT OF REGULATIONS EXEMPTING PACKAGES OF ASSORTED FOODS FROM
THE NAMING OF INGREDIENTS OR FROM THEIR APPEARANCE IN THE ORDER OF
PREDOMINANCE BY WEIGHT WHERE, UNDER GOOD MANUFACTURING PRACTICE, LABEL
DECLARATION OF SUCH INFORMATION IS IMPRACTICABLE.  THIS PROVISION WILL
BE PARTICULARLY APPLICABLE, FOR EXAMPLE, TO ASSORTED CONFECTIONS, WHICH
UNDER NORMAL MANUFACTURING PRACTICES MAY VARY FROM PACKAGE TO PACKAGE
NOT ONLY WITH RESPECT TO IDENTITY OF INGREDIENTS BUT ALSO IN REGARD TO
THE RELATIVE PROPORTIONS OF SUCH INGREDIENTS AS ARE COMMON TO ALL
PACKAGES."  S. REP. NO. 493, 73D CONG., 2D SESS. 12.  THE PROVISO
DISCUSSED IS IN SEC. 403(I), NOT IN SEC. 403(K); BUT THE DISCUSSION
BRINGS OUT THE SORT OF CONSIDERATIONS WHICH REQUIRE EXEMPTION WHEN
COMPLIANCE IS IMPRACTICABLE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

IF IT TAKES NINE PAGES TO DETERMINE THE SCOPE OF A STATUTE, ITS
MEANING CAN HARDLY BE SO CLEAR THAT HE WHO RUNS MAY READ, OR THAT EVEN
HE WHO READS MAY READ.  GENERALITIES REGARDING THE EFFECT TO BE GIVEN
TO THE "CLEAR MEANING" OF A STATUTE DO NOT MAKE THE MEANING OF A
PARTICULAR STATUTE "CLEAR."  THE COURT'S OPINION BARELY FACES WHAT, ON
THE BALANCE OF CONSIDERATIONS, SEEMS TO ME TO BE THE CONTROLLING
DIFFICULTY IN ITS RENDERING OF SEC. 301(K) OF THE FEDERAL FOOD, DRUG,
AND COSMETIC ACT, 52 STAT. 1040, 1042; 21 U.S.C. SEC. 331(K).  THAT
INTERSTATE COMMERCE AND RESULTS IN SUCH ARTICLE BEING MISBRANDED."  BUT
AN ARTICLE IS "MISBRANDED" ONLY IF THERE IS "ALTERATION, MUTILATION,
DESTRUCTION, OBLITERATION, OR REMOVAL OF THE WHOLE OR ANY PART OF THE
LABELING OF, OR THE DOING OF ANY OTHER ACT WITH RESPECT TO, A FOOD,
DRUG, DEVICE, OR COSMETIC."  HERE THERE WAS NO "ALTERATION, MUTILATION,
DESTRUCTION, OBLITERATION, OR REMOVAL" OF ANY PART OF THE LABEL.  THE
DECISIVE QUESTION IS WHETHER TAKING A UNIT FROM A CONTAINER AND PUTTING
IT IN A BAG, WHETHER IT BE FOOD, DRUG OR COSMETIC, IS DOING "ANY OTHER
ACT" IN THE CONTEXT IN WHICH THAT PHRASE IS USED IN THE SETTING OF THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT AND PARTICULARLY OF SEC. 301(K). 
FN1 

AS BEARING UPON THE APPROPRIATE ANSWER TO THIS QUESTION, IT CANNOT BE
THAT A TRANSFER FROM A JAR, THE BULK CONTAINER, TO A SMALL PAPER BAG,
WITHOUT TRANSFERRING THE LABEL OF THE JAR TO THE PAPER BAG, IS "ANY
OTHER ACT" WHEN APPLIED TO A DRUG, BUT NOT "ANY OTHER ACT" WHEN APPLIED
TO CANDIES OR COSMETICS.  BEFORE WE REACH THE POSSIBLE DISCRETION THAT
MAY BE EXERCISED IN PROSECUTING A CERTAIN CONDUCT, IT MUST BE
DETERMINED WHETHER THERE IS ANYTHING TO PROSECUTE.  THEREFORE, IT
CANNOT BE PUT OFF TO SOME OTHER DAY TO DETERMINE WHETHER "ANY OTHER
ACT" IN SEC. 301(K) APPLIES TO THE ORDINARY RETAIL SALE OF CANDIES OR
COSMETICS IN EVERY DRUG STORE OR GROCERY THROUGHOUT THE LAND, AND SO
PLACES EVERY CORNER GROCERY AND DRUG STORE UNDER THE HAZARD THAT THE
ADMINISTRATOR MAY REPORT SUCH CONDUCT FOR PROSECUTION.  THAT QUESTION
IS NOW HERE.  IT IS PART OF THIS VERY CASE, FOR THE SIMPLE REASON THAT
THE PROHIBITED CONDUCT OF SEC. 301(K) APPLIES WITH EQUAL FORCE, THROUGH
THE SAME PHRASE, TO FOOD, DRUGS AND COSMETICS INSOFAR AS THEY ARE
REQUIRED TO BE LABELED.  SEE SECS. 403, 502, AND 602 OF THE ACT. 

IT IS THIS INESCAPABLE CONJUNCTION OF FOOD, DRUGS AND COSMETICS IN
THE PROHIBITION OF SEC. 301(K) THAT CALLS FOR A CONSIDERATION OF THE
PHRASE "OR THE DOING OF ANY OTHER ACT," IN THE CONTEXT OF THE REST OF
THE SENTENCE AND WITH DUE REGARD FOR THE IMPORTANT FACT THAT THE STATES
ARE ALSO DEEPLY CONCERNED WITH THE PROTECTION OF THE HEALTH AND WELFARE
OF THEIR CITIZENS ON TRANSACTIONS PECULIARLY WITHIN LOCAL ENFORCING
POWERS.  SO CONSIDERED, "THE DOING OF ANY OTHER ACT" SHOULD BE READ
WITH THE MEANING WHICH RADIATES TO THAT LOOSE PHRASE FROM THE
PARTICULARITIES THAT PRECEDE IT, NAMELY "ALTERATION, MUTILATION,
DESTRUCTION, OBLITERATION, OR REMOVAL" OF ANY PART OF THE LABEL.  TO
DISREGARD ALL THESE CONSIDERATIONS AND THEN FIND A "CLEAR MEANING" IS
TO REACH A SUM BY OMITTING FIGURES TO BE ADDED.  THERE IS NOTHING IN
THE LEGISLATIVE HISTORY OF THE ACT, INCLUDING THE EXCERPT FROM THE
COMMITTEE REPORT ON WHICH RELIANCE IS PLACED, TO GIVE THE SLIGHTEST
BASIS FOR INFERRING THAT CONGRESS CONTEMPLATED WHAT THE COURT NOW FINDS
IN THE STATUTE.  THE STATUTE IN ITS ENTIRETY WAS OF COURSE INTENDED TO
PROTECT THE ULTIMATE CONSUMER.  THIS IS NO MORE TRUE IN REGARD TO THE
REQUIREMENTS PERTAINING TO DRUGS THAN OF THOSE PERTAINING TO FOOD.  AS
TO THE REACH OF THE STATUTE - THE MEANS BY WHICH ITS ULTIMATE PURPOSE
IS TO BE ACHIEVED - THE LEGISLATIVE HISTORY SHEDS PRECISELY THE SAME
LIGHT ON THE PROVISIONS PERTAINING TO FOOD AS ON THE PROVISIONS
PERTAINING TO DRUGS.  IF DIFFERENTIATIONS ARE TO BE MADE IN THE
ENFORCEMENT OF THE ACT AND IN THE MEANING WHICH THE ORDINARY PERSON IS
TO DERIVE FROM THE ACT, SUCH DIFFERENTIATIONS ARE INTERPOLATIONS OF
CONSTRUCTION.  THEY ARE NOT EXPRESSIONS BY CONGRESS. 

IN THE LIGHT OF THIS APPROACH TO THE PROBLEM OF CONSTRUCTION
PRESENTED BY THIS ACT, I WOULD AFFIRM THE JUDGMENT BELOW. 

MR. JUSTICE REED AND MR. JUSTICE JACKSON JOIN IN THIS DISSENT. 

FN1  "THE ALTERATION, MUTILATION, DESTRUCTION, OBLITERATION, OR
REMOVAL OF THE WHOLE OR ANY PART OF THE LABELING OF, OR THE DOING OF
ANY OTHER ACT WITH RESPECT TO, A FOOD, DRUG, DEVICE, OR COSMETIC, IF
SUCH ACT IS DONE WHILE SUCH ARTICLE IS HELD FOR SALE AFTER SHIPMENT IN
INTERSTATE COMMERCE AND RESULTS IN SUCH ARTICLE BEING MISBRANDED." 
..END :






















VON MOLTKE V. GILLIES, 332 U.S. 708 


NO. 73.  ARGUED NOVEMBER 20, 1947.  - DECIDED JANUARY 19, 1948.  - 161
F.2D 113, REVERSED. 


UPON AN INDICTMENT FOR CONSPIRACY TO VIOLATE THE ESPIONAGE ACT OF
1917, THE PENALTY FOR WHICH MAY BE DEATH OR IMPRISONMENT FOR AS LONG AS
30 YEARS, PETITIONER SIGNED A PAPER PURPORTING TO WAIVE HER RIGHT TO
COUNSEL AND PLEADED GUILTY.  SHE WAS SENTENCED TO IMPRISONMENT FOR FOUR
YEARS.  IN A SUBSEQUENT HABEAS CORPUS PROCEEDING CHALLENGING THE
VALIDITY OF THE SENTENCE, SHE ALLEGED (1) THAT THE PLEA WAS ENTERED
BECAUSE OF COERCION, INTIMIDATION, AND DECEPTION BY FEDERAL OFFICERS IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, AND (2)
THAT SHE NEITHER UNDERSTANDINGLY WAIVED THE BENEFIT OF THE ADVICE OF
COUNSEL NOR WAS PROVIDED WITH THE ASSISTANCE OF COUNSEL AS REQUIRED BY
THE SIXTH AMENDMENT.  THE DISTRICT COURT HEARD THE CONFLICTING EVIDENCE
OFFERED BY PETITIONER AND THE GOVERNMENT, FOUND THAT PETITIONER HAD
FAILED TO PROVE EITHER CONTENTION, AND DISMISSED THE WRIT.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  HELD: 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS SET ASIDE.  THE CAUSE IS REMANDED TO THE DISTRICT
COURT SO THAT IT MAY HOLD FURTHER HEARINGS AND GIVE CONSIDERATION TO,
AND MAKE EXPLICIT FINDINGS UPON, THE QUESTION WHETHER THE PETITIONER
PLEADED GUILTY IN RELIANCE UPON THE ERRONEOUS LEGAL ADVICE OF A
GOVERNMENT AGENT.  IF UPON SUCH FURTHER HEARINGS AND CONSIDERATION THE
DISTRICT COURT FINDS THAT THE PETITIONER DID NOT COMPETENTLY,
INTELLIGENTLY, AND WITH FULL UNDERSTANDING OF THE IMPLICATIONS WAIVE
HER CONSTITUTIONAL RIGHT TO COUNSEL, AN ORDER SHOULD BE ENTERED
DIRECTING THAT SHE BE RELEASED FROM FURTHER CUSTODY UNDER THE JUDGMENT
BASED ON HER PLEA.  PP. 709-710, 727. 

VON MOLTKE V. GILLIES, SUPERINTENDENT OF THE DETROIT HOUSE OF
CORRECTION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

IN A HABEAS CORPUS PROCEEDING IN WHICH THE PETITIONER SOUGHT RELEASE
FROM IMPRISONMENT UNDER A SENTENCE UPON HER PLEA OF GUILTY TO AN
INDICTMENT FOR CONSPIRACY TO VIOLATE THE ESPIONAGE ACT OF 1917, THE
DISTRICT COURT DISMISSED THE WRIT.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  161 F.2D 113.  THIS COURT GRANTED CERTIORARI.  331 U.S.
800.  REVERSED AND REMANDED, P. 727. 

MR. JUSTICE BLACK ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION
IN WHICH MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, AND MR. JUSTICE
RUTLEDGE CONCUR. 

THE PETITIONER WAS INDICTED FOR CONSPIRACY TO VIOLATE THE ESPIONAGE
ACT OF 1917.  FN1  THE SPECIFIC CHARGE WAS THAT, IN ORDER TO INJURE THE
UNITED STATES AND TO AID THE GERMAN REICH, SHE AND TWENTY-THREE OTHERS
HAD CONSPIRED DURING THE SECOND WORLD WAR TO COLLECT AND DELIVER VITAL
MILITARY INFORMATION TO GERMAN AGENTS. 

WITH NO MONEY TO HIRE A LAWYER AND WITHOUT THE BENEFIT OF COUNSEL THE
PETITIONER APPEARED BEFORE A FEDERAL DISTRICT JUDGE, TOLD HIM THAT THE
INDICTMENT HAD BEEN EXPLAINED TO HER, SIGNED A PAPER STATING THAT SHE
WAIVED THE "RIGHT TO BE REPRESENTED BY COUNSEL AT THE TRIAL OF THIS
CAUSE," AND THEN PLEADED GUILTY.  UNDER HER PLEA SHE COULD HAVE BEEN
SENTENCED TO DEATH OR TO IMPRISONMENT FOR NOT MORE THAN THIRTY YEARS. 
AFTER THIRTEEN MONTHS IN JAIL FOLLOWING HER PLEA, THE COURT SENTENCED
HER TO FOUR YEARS IN PRISON. 

IN THIS HABEAS CORPUS PROCEEDING SHE CHARGED THAT THE SENTENCE,
RESTING AS IT DID SOLELY ON HER PLEA OF GUILTY, WAS INVALID FOR TWO
REASONS:  FIRST, SHE ALLEGED THAT THE PLEA WAS ENTERED BY REASON OF THE
COERCION, INTIMIDATION, AND DECEPTION OF FEDERAL OFFICERS IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  SECOND, SHE ALLEGED
THAT SHE NEITHER UNDERSTANDINGLY WAIVED THE BENEFIT OF THE ADVICE OF
COUNSEL NOR WAS PROVIDED WITH THE ASSISTANCE OF COUNSEL AS REQUIRED BY
THE SIXTH AMENDMENT.  AS THE GOVERNMENT CONCEDES, THESE CHARGES ENTITLE
THE PETITIONER TO HAVE THE ISSUES HEARD AND DETERMINED IN A HABEAS
CORPUS PROCEEDING, AND, IF TRUE, INVALIDATE THE PLEA AND SENTENCE.  FN2
THE DISTRICT COURT HEARD EVIDENCE OFFERED BY BOTH THE PETITIONER AND
THE GOVERNMENT, AND THEN FOUND THAT SHE HAD FAILED TO PROVE EITHER
CONTENTION.  72 F.SUPP.  994.  THE SIXTH CIRCUIT COURT OF APPEALS
AFFIRMED, WITH ONE JUDGE DISSENTING.  161 F.2D 113. 

ON THE BASIS OF WHAT HE DESIGNATED AS "THE UNDISPUTED EVIDENCE," THE
DISSENTING JUDGE CONCLUDED THAT PETITIONER HAD PLEADED GUILTY BECAUSE
OF HER RELIANCE UPON THE LEGAL ADVICE OF A FEDERAL BUREAU OF
INVESTIGATION (FBI) LAWYER-AGENT, WHICH ADVICE "WAS, THOUGH HONESTLY
GIVEN, FALSE."  NEITHER THE DISTRICT COURT NOR THE MAJORITY OF THE
CIRCUIT COURT OF APPEALS CONTROVERTED THIS CONCLUSION OF THE DISSENTING
JUDGE.  A CHALLENGE TO A PLEA OF GUILTY MADE BY AN INDIGENT DEFENDANT,
FOR WHOM NO LAWYER HAS BEEN PROVIDED, ON THE GROUND THAT THE PLEA WAS
ENTERED IN RELIANCE UPON ADVICE GIVEN BY A GOVERNMENT LAWYER-AGENT,
RAISES SERIOUS CONSTITUTIONAL QUESTIONS.  UNDER THESE CIRCUMSTANCES WE
GRANTED CERTIORARI IN THIS CASE.  331 U.S. 800. 

IT THUS BECOMES APPARENT THAT DETERMINATION OF THE QUESTIONS
PRESENTED DEPENDS UPON WHAT THE EVIDENCE SHOWED.  THERE WAS CONFLICTING
TESTIMONY ON MANY POINTS IN THIS CASE.  WE DO NOT ATTEMPT TO RESOLVE
THESE CONFLICTS.  OUR CONCLUSION IS REACHED FROM THE FOLLOWING FACTS
SHOWN BY THE TESTIMONY OF GOVERNMENT AGENTS OR BY UNDISPUTED EVIDENCE
OFFERED BY PETITIONER. 

THE PETITIONER WAS BORN IN GERMANY.  IN THAT COUNTRY SHE BORE THE
TITLE OF COUNTESS.  SHE AND HER HUSBAND CAME TO THE UNITED STATES IN
DECEMBER, 1926.  SINCE 1930 THEY HAVE LIVED IN DETROIT WHERE THE
PETITIONER HAS BEEN A HOUSEWIFE AND HER HUSBAND AN INSTRUCTOR IN GERMAN
AT WAYNE UNIVERSITY.  HER HUSBAND IS A NATURALIZED CITIZEN OF THE
UNITED STATES; HER OWN NATURALIZATION PAPERS HAVE BEEN PENDING FOR SOME
TIME.  THEY HAVE FOUR CHILDREN, THREE OF WHOM WERE BORN IN THIS COUNTRY
AS AMERICAN CITIZENS. 

AUGUST 24, 1943, BETWEEN 6 AND 7 A.M., SIX FBI AGENTS CAME TO THEIR
HOME.  THE PETITIONER WAS IN BED.  SHE WAS INFORMED THAT SHE MUST GET
UP AND GO WITH THEM.  THE HOME WAS SEARCHED WITH HER HUSBAND'S
PERMISSION.  SHE WAS TAKEN TO THE LOCAL OFFICE OF THE FBI,
FINGERPRINTED, PHOTOGRAPHED, AND EXAMINED BY A PHYSICIAN.  FROM THERE
SHE WAS TAKEN TO THE IMMIGRATION DETENTION HOME, PLACED IN SOLITARY
CONFINEMENT, AND, WITH ONE EXCEPTION NOTED BELOW, NOT PERMITTED TO SEE
OR COMMUNICATE WITH ANYONE OUTSIDE FOR THE NEXT FOUR DAYS.  TWO FBI
AGENTS PERSISTENTLY BUT COURTEOUSLY EXAMINED HER EVERY DAY FROM ABOUT
10 A.M. UNTIL ABOUT 9 P.M.  SHE KNEW NOTHING ABOUT HER ARREST AND
DETENTION EXCEPT THAT SHE WAS BEING HELD INDEFINITELY ON A PRESIDENTIAL
WARRANT "AS A DANGEROUS ENEMY ALIEN."  SHE WAS INFORMED "THAT THE FBI
IS AN INVESTIGATING AGENCY, AND NOT A PROSECUTING, AND AS AN ENEMY
ALIEN I (SHE) WAS NOT ALLOWED TO SEE AN ATTORNEY."  DURING THIS FIRST
PERIOD OF QUESTIONING, THE ONLY RELAXATION OF PETITIONER'S
INCOMMUNICADO STATUS WAS A SINGLE PERMISSION TO RELAY INSTRUCTIONS
THROUGH AN FBI AGENT TO HER HUSBAND WHO WAS TOLD HOW TO LOOK AFTER
THEIR NINE-YEAR-OLD DIABETIC CHILD.  THIS CHILD, FOR WHOM THE MOTHER
HAD SPECIALLY CARED SINCE HIS INFANCY, REQUIRED A STRICT DIET AND
INJECTIONS TWICE DAILY. 

SEPTEMBER 1, EIGHT DAYS AFTER HER EARLY MORNING ARREST, PETITIONER
WAS TAKEN BEFORE AN ENEMY ALIEN HEARING BOARD.  SHE WAS NOT THEN
INFORMED OF ANY SPECIFIC CHARGES AGAINST HER, BUT SHE WAS TOLD THAT SHE
COULD NOT BE "REPRESENTED BY A LEGAL ATTORNEY" AT THE HEARING.  THE
RESULTS OF THIS HEARING WERE NOT MADE KNOWN TO HER.  AT ITS CONCLUSION
SHE WAS RETURNED TO THE DETENTION HOME. 

SEPTEMBER 18 THE PETITIONER WAS HANDED THE INDICTMENT AGAINST HER. 
IN OUR PRINTED RECORD THIS DOCUMENT COVERS A LITTLE MORE THAN FOURTEEN
PAGES.  IT CHARGES GENERALLY, IN THE LANGUAGE OF THE STATUTE, THAT THE
TWENTY-FOUR DEFENDANTS CONSPIRED TO VIOLATE THE STATUTE.  IT ALSO
ENUMERATES 47 OVERT ACTS ALLEGED TO HAVE BEEN PERFORMED IN PURSUANCE OF
THE OBJECTS OF THE CONSPIRACY, FIVE OF WHICH ACTS SPECIFICALLY REFER TO
THE PETITIONER.  FOUR OUT OF THE FIVE MERELY ALLEGE THAT THE PETITIONER
"MET AND CONFERRED WITH" ONE OR MORE OF THE OTHER DEFENDANTS; THE FIFTH
ALLEGES THAT SHE "INTRODUCED" SOMEONE TO ONE OF THE DEFENDANTS. 

SEPTEMBER 21, ALMOST A MONTH AFTER HER ARREST, THE PETITIONER AND A
CO-DEFENDANT, MRS. LEONHARDT, WERE TAKEN TO THE COURTHOUSE FOR
ARRAIGNMENT.  UPON BEING TOLD THAT THE TWO DEFENDANTS HAD NO ATTORNEY
AND NO MEANS TO OBTAIN ONE, THE JUDGE SAID HE WOULD APPOINT COUNSEL
RIGHT AWAY AND WOULD NOT ARRAIGN THEM UNTIL THEY HAD SEEN AN ATTORNEY. 
THEY WERE THEN LED "TO THE BULL PEN TO WAIT FOR THE ATTORNEY."  BEFORE
ANY ATTORNEY ARRIVED THEY WERE TAKEN BACK INTO THE COURTROOM.  COURT
WAS IN SESSION.  AS EXPLAINED BY PETITIONER AND CORROBORATED BY OTHERS,
"JUDGE MOINET WAS ON THE BENCH, AND THERE SEEMED TO BE A TRIAL GOING
ON, BECAUSE JUDGE MOINET APPOINTED A LAWYER IN THE COURTROOM.  HE SAID,
'COME HERE, "SO-AND-SO", AND HELP THESE TWO WOMEN OUT,' AND THE YOUNG
LAWYER OBJECTED TO THAT; HE SAID HE DIDN'T WANT TO HAVE ANYTHING TO DO
WITH THAT.  BUT THEN HE CONSENTED JUST FOR THE ARRAIGNMENT, TO HELP
OUT, AND HE CAME OVER TO US - WE WERE SITTING ON THE SIDE BENCH - AND
HE ASKED ME, 'HOW DO YOU WANT TO PLEAD?'  I SAID, 'NOT GUILTY.'  AND HE
ASKED MRS. LEONHARDT, AND SHE SAID THE SAME THING.  SO HE TOLD US THAT,
HE WHISPERED TO US, IN FACT, HE WENT OVER IT, WHISPERED THAT IT WOULD
NOT BE ADVISABLE, BUT I DO NOT KNOW EVEN NOW WHY, BUT HE SUGGESTED IT
WOULD BE PROPER TO STAND MUTE."  IN THIS TWO TO FIVE MINUTE WHISPERED
CONVERSATION (THE LAWYER SAID "A COUPLE OF MINUTES") THE LAWYER ASKED
BOTH DEFENDANTS IF THEY "UNDERSTOOD WHAT THIS WAS ALL ABOUT."  THEY
INDICATED THAT THEY DID.  HE DID NOT EVEN SEE THE INDICTMENT, DID NOT
INFORM THE PETITIONER AS TO THE NATURE OF THE CHARGE AGAINST HER OR AS
TO HER POSSIBLE DEFENSES, AND DID NOT INQUIRE IF SHE KNEW THE
PUNISHMENT THAT COULD BE IMPOSED FOR HER ALLEGED OFFENSE.  THE CASE ON
TRIAL WAS THEN INTERRUPTED, THE CHARGE WAS MADE AGAINST THE DEFENDANTS,
WHO STOOD MUTE, AND A PLEA OF NOT GUILTY WAS ENTERED.  WITH REFERENCE
TO THEIR FUTURE REPRESENTATION BY AN ATTORNEY, THE PETITIONER'S
UNCONTRADICTED TESTIMONY WAS THAT THE JUDGE "SAID HE WOULD APPOINT AN
ATTORNEY RIGHT AWAY, AND I UNDERSTOOD THAT THE GENTLEMAN WAS TO BE
EXPECTED TO COME RIGHT AWAY." 

THE TWO WOMEN, UNABLE TO GET OUT ON BOND, WERE THEN IMMEDIATELY TAKEN
FROM THE COURTHOUSE TO THE WAYNE COUNTY JAIL.  THE MATRON THERE
INFORMED THE PETITIONER THAT SHE HAD STRICT ORDERS TO HOLD THE
PETITIONER AND MRS. LEONHARDT "INCOMMUNICADO."  NOTWITHSTANDING THIS
ORDER, HOWEVER, THE FBI AGENTS CONTINUED TO VISIT AND TALK WITH BOTH OF
THEM AND A THIRD DEFENDANT, MRS. BEHRENS, EVERY DAY EXCEPT SUNDAY. 
DURING THIS PERIOD ALL THREE OF THEM WERE ALLOWED TO READ AND DISCUSS
AMONG THEMSELVES THE UNFAVORABLE NEWSPAPER REPORTS WHICH THEIR ARREST
AND INDICTMENT HAD OCCASIONED.  THEY TALKED ALSO WITH THE FBI AGENTS
ABOUT THIS ADVERSE PUBLICITY AND ABOUT HOW THEY SHOULD PLEAD TO THE
CHARGES. 

SEPTEMBER 25, ONE MONTH AND ONE DAY AFTER MRS. VON MOLTKE'S ARREST,
TWO LAWYERS CAME TO THE JAIL TO SEE HER.  THEY HAD BEEN SENT BY HER
HUSBAND.  ONE OF THEM APPEARS TO HAVE TAKEN THE HUSBAND'S LANGUAGE
COURSE AT WAYNE UNIVERSITY.  THESE LAWYERS' MESSAGE WAS THE FIRST
COMMUNICATION SHE HAD BEEN PERMITTED TO RECEIVE FROM HER HUSBAND SINCE
HER REMOVAL TO THE COUNTY JAIL.  SHE HAD BEEN SO WELL SHUT OFF FROM THE
OUTSIDE WORLD THAT SHE THOUGHT HE DID NOT EVEN KNOW WHERE SHE WAS THEN
CONFINED.  THESE LAWYERS INFORMED HER THAT, ALTHOUGH THEY HAD COME AT
HER HUSBAND'S REQUEST, THEY WOULD NOT REPRESENT HER AS COUNSEL. 
FURTHERMORE, THEY WARNED HER THAT THEY WOULD NOT EVEN HOLD WHAT SHE
SAID IN CONFIDENCE, AND THAT THEY WOULD FEEL FREE TO DISCLOSE ANYTHING
SHE TOLD THEM TO THE GOVERNMENT.  ONLY ONE OF THE LAWYERS APPEARED AT
THE TRIAL.  HE TESTIFIED THAT THE PETITIONER WAS CONCERNED DURING THEIR
VISIT FOR HER CHILDREN AND HER HUSBAND, WHOM THE UNIVERSITY HAD REMOVED
FROM HIS $4,000 POSITION THE DAY AFTER HER ARREST.  SHE PARTICULARLY
INQUIRED WHETHER IT WOULD HELP HER HUSBAND TO GET HIS UNIVERSITY
POSITION BACK IF SHE PLEADED GUILTY, BUT RECEIVED NO COUNSEL ON THE
SUBJECT ONE WAY OR ANOTHER.  IN FACT, THE LAWYERS EMPHASIZED A NUMBER
OF TIMES THAT THEY COULD NOT AND WOULD NOT ADVISE HER WHAT SHE SHOULD
DO.  ALTHOUGH THEY GAVE HER A FORM OF CROSS-EXAMINATION REGARDING THE
CHARGES AGAINST HER IN THE INDICTMENT, THEY DID NOT ATTEMPT TO EXPLAIN
TO HER THE IMPLICATIONS OF THESE CHARGES, OR TO ADVISE HER AS TO ANY
POSSIBLE DEFENSES TO THEM, OR TO INFORM HER OF THE PERMISSIBLE
PUNISHMENTS UNDER THE INDICTMENT. 

SEPTEMBER 28, THREE DAYS AFTER THE LAWYERS' VISIT, THE PETITIONER AND
MRS. LEONHARDT WERE TAKEN BY FBI AGENTS TO THE MARSHAL'S OFFICE WHERE
THEY TALKED WITH THE ASSISTANT DISTRICT ATTORNEY ABOUT WHAT PLEA THEY
SHOULD ENTER.  MRS. LEONHARDT ANNOUNCED THERE THAT SHE WOULD PLEAD
GUILTY, WHICH PLEA SHE LATER ENTERED, BUT THE PETITIONER FIRST ASKED
FOR THE OPPORTUNITY OF DISCUSSING THE MATTER WITH HER HUSBAND.  HE CAME
TO THE MARSHAL'S OFFICE, WAS ALLOWED TO TALK WITH HIS WIFE IN THE "BULL
PEN," AND ADVISED HER NOT TO DO ANYTHING BEFORE SHE SAW A LAWYER.  SHE
THEN DECLINED TO PLEAD GUILTY AND WAS TAKEN BACK TO JAIL. 

OCTOBER 7, NINE DAYS LATER, SHE DID PLEAD GUILTY WITHOUT HAVING
TALKED TO ANY LAWYER IN THE MEANTIME EXCEPT THE FBI AGENT-ATTORNEYS,
ALTHOUGH SHE HAD SEEN HER HUSBAND SEVERAL MORE TIMES.  A FEW DAYS
BEFORE THE 7TH, MRS. BEHRENS HAD ENTERED A PLEA OF GUILTY, AND RUMORS
REACHED THE PETITIONER THAT OTHER DEFENDANTS NAMED IN THE INDICTMENT
WOULD ALSO PLEAD GUILTY.  DURING THE INTERVAL BETWEEN THE 28TH OF
SEPTEMBER AND PETITIONER'S PLEA OF GUILTY ON THE 7TH OF OCTOBER, THE
FBI MEN HAD TALKED TO HER DAILY.  SHE HAD PARTICULARLY ASKED THEM
WHETHER UNDER UNITED STATES LAW SHE WOULD HAVE THE RIGHT TO A TRIAL IF
ALL HER CO-DEFENDANTS PLEADED GUILTY.  THE AGENT'S REPLY, AS HE
REMEMBERED IT, WAS "THAT THE QUESTION OF THE TRIAL WOULD BE UP TO THE
UNITED STATES ATTORNEY'S OFFICE."  SHE ALSO REPEATEDLY PLIED THE AGENTS
WITH QUESTIONS AS TO WHAT PLEA SHE SHOULD ENTER IN ORDER TO REDUCE AS
MUCH AS POSSIBLE THE INJURIOUS PUBLICITY OF THE AFFAIR, AND WHAT WOULD
BE THE LEAST HARMFUL COURSE TO MAKE IT POSSIBLE FOR HER HUSBAND TO
RECOVER HIS OLD POSITION.  SHE WAS ALSO VITALLY INTERESTED IN WHETHER
SHE WOULD BE DEPORTED, AND WHETHER, IF SHE DID PLEAD GUILTY, HER
SENTENCE COULD BE SERVED CLOSE TO HER FAMILY.  ALL OF THESE SUBJECTS
THE AGENTS TALKED OVER WITH HER IN THEIR DAILY CONVERSATIONS AND ONE OF
THEM OFFERED TO, AND DID, DISCUSS THEM WITH THE ASSISTANT DISTRICT
ATTORNEY ON HER BEHALF.  FOLLOWING THIS DISCUSSION, THE AGENT BROUGHT
BACK WORD TO THE PETITIONER THAT THE ASSISTANT DISTRICT ATTORNEY COULD
NOT CONTROL DEPORTATION, PUBLICITY, OR THE PLACE OF HER IMPRISONMENT,
BUT THAT IF SHE PLEADED GUILTY HE WOULD WRITE A LETTER TO THE
CONTROLLING AUTHORITIES AND RECOMMEND THAT SHE BE IMPRISONED CLOSE TO
HER FAMILY.    ABOUT THIS TIME ONE OF THE LAWYER-AGENTS OF THE FBI
DISCUSSED THE PETITIONER'S LEGAL PROBLEMS WITH HER AT GREAT LENGTH. 
ACCORDING TO HIS TESTIMONY HE DID HIS BEST TO EXPLAIN THE IMPLICATIONS
OF THE INDICTMENT.  SHE TOLD THIS AGENT-ATTORNEY ABOUT A STATEMENT SHE
HAD HEARD WHILE IN JAIL THAT UNLESS SHE PLEADED GUILTY HER HUSBAND
WOULD BE INVOLVED, AND SHE ASKED THE AGENT IF THIS WERE TRUE.  HE
REPLIED THAT HE COULD NOT ANSWER THIS QUESTION.  SHE ALSO ASKED ONE OF
THE LAWYER-AGENTS WHETHER MERE ASSOCIATION WITH PEOPLE GUILTY OF A
CRIME - SUCH ASSOCIATION AS THAT WITH WHICH SHE WAS CHARGED IN THE FIVE
OVERT ACTS - WAS SUFFICIENT IN ITSELF TO BRING ABOUT HER CONVICTION
UNDER THE INDICTMENT.  THIS AGENT, ACCORDING TO THE PETITIONER, THEN
EXPLAINED THE INDICTMENT TO HER BY THE USE OF A "RUM RUNNERS" PLOT AS
AN EXAMPLE.  SHE TESTIFIED THAT HE SAID:  "THAT IF THERE IS A GROUP OF
PEOPLE IN A 'RUM' PLAN WHO VIOLATE THE LAW, AND ANOTHER PERSON IS THERE
AND THE PERSON DOESN'T KNOW THE PEOPLE WHO ARE PLANNING THE VIOLATION
AND DOESN'T KNOW WHAT IS GOING ON, BUT STILL IT SEEMED AFTER TWO YEARS
THIS PLAN IS CARRIED OUT, IN THE LAW THE MAN WHO WAS PRESENT BECOMES
...  THE PERSON NEVERTHELESS IS GUILTY OF CONSPIRACY.  ...  "  THE FBI
AGENT DID NOT DENY THAT HE HAD GIVEN HER THE RUM RUNNER ILLUSTRATION. 
IN FACT, THE AGENT SAID THAT IT WAS QUITE POSSIBLE THAT THE
CONVERSATION HAD OCCURRED.  FN3 

DURING THE TEN DAYS PRIOR TO HER PLEA OF GUILTY, PETITIONER HAD MANY
CONVERSATIONS WITH FBI AGENTS ABOUT HOW SHE SHOULD PLEAD TO THE
INDICTMENT.  IN RESOLVING HER DOUBTS SHE HAD NO LEGAL COUNSEL UPON WHOM
TO RELY EXCEPT THE GOVERNMENT LAWYER-AGENTS, SINCE NEITHER SHE NOR HER
HUSBAND COULD AFFORD A LAWYER, AND THE COUNSEL PROMISED BY JUDGE MOINET
NEVER APPEARED.  HER CHIEF CONCERN IN TRYING TO DECIDE WHETHER TO PLEAD
GUILTY WAS NOT THE INDICTMENT, OR POSSIBLE IMPRISONMENT; AS WAS
TESTIFIED BY GOVERNMENT AGENTS, "SHE WAS CONCERNED ABOUT HER HUSBAND
AND HIS JOB," AND "SHE WAS HOPING TO DO WHATEVER WOULD BE BEST FOR HER
HUSBAND AND HER CHILD."  THAT HER TROUBLED STATE OF MIND WAS RECOGNIZED
BY THE PROSECUTING ATTORNEY IS SHOWN BY THESE LEADING QUESTIONS HE
ASKED HER ON CROSS-EXAMINATION: 

"Q.  NOW, ISN'T IT TRUE THAT UP UNTIL THE TIME YOU PLEAD GUILTY YOU
REPEATEDLY ASKED THE AGENTS FOR ADVICE AS TO WHETHER YOU SHOULD PLEAD
GUILTY OR NOT?  ISN'T THAT TRUE? 

"A.  THERE WAS NOBODY ELSE I COULD ASK. 

"Q.  WELL, JUST SAY YES OR NO. 

"A.  YES." 

OCTOBER 7, HAVING REACHED A TEMPORARY DECISION, SHE WENT WITH TWO OF
THE AGENTS TO THE ASSISTANT DISTRICT ATTORNEY AND TOLD HIM THAT SHE
WANTED TO PLEAD GUILTY.  SINCE JUDGE MOINET WAS NOT AVAILABLE, SHE WAS
TAKEN BEFORE ANOTHER JUDGE WHO WAS UNFAMILIAR WITH THE CASE.  AT FIRST
HE WOULD NOT ACCEPT THE PLEA OF GUILTY BECAUSE SHE THEN HAD NO LAWYER,
AND THE RECORD BEFORE HIM INDICATED THAT SHE HAD PREVIOUSLY PLEADED NOT
GUILTY UNDER THE ADVICE OF COUNSEL.  BUT IN RESPONSE TO THE JUDGE'S
QUESTIONS, SHE SAID THAT SHE UNDERSTOOD THE INDICTMENT AND WAS
VOLUNTARILY ENTERING A PLEA OF GUILTY.  THE JUDGE THEN PERMITTED
PETITIONER TO SIGN A WRITTEN WAIVER OF COUNSEL.  THE WHOLE MATTER
APPEARS TO HAVE BEEN DISPOSED OF BY ROUTINE QUESTIONING WITHIN FIVE
MINUTES DURING AN INTERLUDE IN ANOTHER TRIAL.  IF ANY EXPLANATION OF
THE IMPLICATIONS OF THE INDICTMENT OR OF THE CONSEQUENCES OF HER PLEA
WAS THEN MENTIONED BY THE JUDGE, OR BY ANYONE IN HIS PRESENCE, THE
RECORD DOES NOT SHOW IT.  NOR IS THERE ANYTHING TO INDICATE SHE WAS
INFORMED THAT A SENTENCE OF DEATH COULD BE IMPOSED UNDER THE CHARGES. 
THE JUDGE APPEARS NOT TO HAVE ASKED PETITIONER WHETHER SHE WAS ABLE TO
HIRE A LAWYER, WHY SHE DID NOT WANT ONE, OR WHO HAD GIVEN HER ADVICE IN
CONNECTION WITH HER PLEA.  APPARENTLY HE WAS NOT INFORMED THAT THE
PETITIONER'S ONLY LEGAL COUNSEL HAD COME FROM FBI AGENTS. 

PETITIONER CONTINUED THEREAFTER TO WORRY ABOUT WHETHER SHE HAD ACTED
WISELY IN CHANGING HER PLEA TO GUILTY.  ON LEARNING IN JANUARY, 1944,
FROM AN FBI AGENT THAT SHE COULD REQUEST PERMISSION TO WITHDRAW THE
PLEA, SHE SENT MESSAGES TO THE DISTRICT ATTORNEY, SEEKING SUCH
PERMISSION.  SOME MONTHS LATER JUDGE MOINET APPOINTED COUNSEL SOLELY
FOR THE PURPOSE OF FILING A MOTION FOR LEAVE TO WITHDRAW HER PLEA. 
COUNSEL DID FILE SUCH A MOTION, BUT ITS DISMISSAL AS TARDY  FN4  WAS
REQUIRED BY THE CRIMINAL APPEALS RULES, EVEN IF THE MOTION HAD BEEN
MADE WHEN PETITIONER FIRST LEARNED OF HER RIGHTS.  HAD THE MOTION TO
WITHDRAW THE PLEA OF GUILTY NOT BEEN TARDY, THE COURT WOULD HAVE BEEN
REQUIRED TO CONSIDER IT IN THE LIGHT OF WHAT THIS COURT DECLARED IN
KERCHEVAL V. UNITED STATES, 274 U.S. 220, 223:  "A PLEA OF GUILTY
DIFFERS IN PURPOSE AND EFFECT FROM A MERE ADMISSION OR AN EXTRA
JUDICIAL CONFESSION; IT IS ITSELF A CONVICTION.  ...  OUT OF JUST
CONSIDERATION FOR PERSONS ACCUSED OF CRIME, COURTS ARE CAREFUL THAT A
PLEA OF GUILTY SHALL NOT BE ACCEPTED UNLESS MADE VOLUNTARILY AFTER
PROPER ADVICE AND WITH FULL UNDERSTANDING OF THE CONSEQUENCES."  FN5 

IT IS SUGGESTED THAT SOME ADVERSE INFERENCE SHOULD BE DRAWN AGAINST
THE PETITIONER BECAUSE SHE FAILED TO TRY TO APPEAL FROM HER CONVICTION
AND SENTENCE FOLLOWING THE DENIAL OF HER MOTION.  IN VIEW OF HER
COUNSEL'S APPOINTMENT SOLELY FOR "THE PURPOSE OF MOVING THAT SHE BE
ALLOWED TO WITHDRAW HER PLEA" OF GUILTY, IT IS QUESTIONABLE WHETHER HE
HAD AUTHORITY TO PROSECUTE AN APPEAL FROM HER CONVICTION AND SENTENCE. 
AT LEAST THE APPOINTED COUNSEL DID NOT TAKE AN APPEAL AND HE WAS THE
ONLY LAWYER PETITIONER HAD.  FURTHERMORE, THE FUTILITY OF AN APPEAL
BASED UPON THE TRIAL COURT'S REFUSAL TO PERMIT THE WITHDRAWAL OF HER
PLEA WAS OBVIOUS, IN VIEW OF HER FAILURE TO MEET THE STRICT
REQUIREMENTS OF RULE II (4).  IT SEEMS PRETTY PLAIN THAT THE PETITIONER
HAS RAISED THE QUESTION HERE IN THE ONLY PROPER WAY - BY HABEAS CORPUS
PROCEEDINGS. 

WE ACCEPT THE GOVERNMENT'S CONTENTION THAT THE PETITIONER IS AN
INTELLIGENT, MENTALLY ACUTE WOMAN.  IT IS NOT NOW NECESSARY TO
DETERMINE WHETHER, AS THE GOVERNMENT ARGUES, THE DISTRICT COURT MIGHT
REASONABLY HAVE REJECTED MUCH OF PETITIONER'S TESTIMONY.  NOR NEED WE
PASS UPON THE GOVERNMENT'S CONTENTION THAT THE EVIDENCE MIGHT HAVE
SUPPORTED A FINDING THAT THE FBI LAWYER-AGENT DID NOT ACTUALLY GIVE HER
THE ERRONEOUS ADVICE THAT MERE ASSOCIATION WITH CRIMINAL CONSPIRATORS
WAS SUFFICIENT IN AND OF ITSELF TO MAKE A PERSON GUILTY OF CRIMINAL
CONSPIRACY.  FOR, ASSUMING THE CORRECTNESS OF THE TWO LATTER
CONTENTIONS, WE ARE OF THE OPINION THAT THE UNDISPUTED TESTIMONY
PREVIOUSLY SUMMARIZED SHOWS THAT WHEN PETITIONER PLEADED GUILTY, SHE
DID NOT HAVE THAT FULL UNDERSTANDING AND COMPREHENSION OF HER LEGAL
RIGHTS INDISPENSABLE TO A VALID WAIVER OF THE ASSISTANCE OF COUNSEL. 

FIRST.  THE SIXTH AMENDMENT GUARANTEES THAT AN ACCUSED, UNABLE TO
HIRE A LAWYER, SHALL BE PROVIDED WITH THE ASSISTANCE OF COUNSEL FOR HIS
DEFENSE IN ALL CRIMINAL PROSECUTIONS IN THE FEDERAL COURTS.  WALKER V.
JOHNSTON, 312 U.S. 275, 286; SEE FOSTER V. ILLINOIS, 332 U.S. 134, 136
137.  THIS COURT HAS BEEN PARTICULARLY SOLICITOUS TO SEE THAT THIS
RIGHT WAS CAREFULLY PRESERVED WHERE THE ACCUSED WAS IGNORANT AND
UNEDUCATED, WAS KEPT UNDER CLOSE SURVEILLANCE, AND WAS THE OBJECT OF
WIDESPREAD PUBLIC HOSTILITY.  POWELL V. ALABAMA, 287 U.S. 45.  THE
PETITIONER'S CASE BRISTLED WITH FACTORS THAT MADE IT ALL THE MORE
ESSENTIAL THAT, BEFORE ACCEPTING A WAIVER OF HER CONSTITUTIONAL RIGHT
TO COUNSEL, THE COURT BE SATISFIED THAT SHE FULLY COMPREHENDED HER
PERILOUS POSITION.  WE WERE WAGING TOTAL WAR WITH GERMANY.  SHE HAD A
GERMAN NAME.  SHE WAS A GERMAN.  SHE HAD BEEN A GERMAN COUNTESS.  THE
WAR ATMOSPHERE WAS SATURATED AT THAT TIME WITH A SUSPICION AND FEAR OF
GERMANS.  THE INDICTMENT CHARGED THAT WHILE THIS COUNTRY WAS AT WAR
WITH GERMANY AND JAPAN THE PETITIONER HAD CONSPIRED WITH OTHERS TO
BETRAY OUR MILITARY SECRETS TO GERMANY.  SHE HAD BEEN KEPT IN CLOSE
CONFINEMENT SINCE HER ARREST.  MANY OF HER ALLEGED CO-CONSPIRATORS HAD
ALREADY PLEADED GUILTY.  IF FOUND GUILTY, SHE COULD HAVE BEEN, AND MANY
PEOPLE MIGHT THINK SHOULD HAVE BEEN, LEGALLY PUT TO DEATH AS PUNISHMENT
FOR VIOLATION OF THE ESPIONAGE ACT.  IF NOT EXECUTED, SHE COULD HAVE
BEEN IMPRISONED FOR THIRTY YEARS OR FOR SUCH SHORTER PERIOD AS THE
JUDGE IN HIS DISCRETION MIGHT FIX.  EVEN WHEN THE TRIAL COURT WAS ABOUT
TO IMPOSE SENTENCE ON THIS PETITIONER FOLLOWING HER PLEA OF GUILTY, A
LAWYER MIGHT HAVE RENDERED HER INVALUABLE AID IN CALLING TO THE COURT'S
ATTENTION ANY MITIGATING CIRCUMSTANCES THAT MIGHT HAVE INCLINED HIM TO
FIX A LIGHTER PENALTY FOR HER.  ANYONE CHARGED WITH ESPIONAGE IN
WARTIME UNDER THE STATUTE IN QUESTION WOULD HAVE SORELY NEEDED A
LAWYER; MRS. VON MOLTKE, IN PARTICULAR, DESPERATELY NEEDED THE BEST SHE
COULD GET. 

SECOND.  A WAIVER OF THE CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF
COUNSEL IS OF NO LESS MOMENT TO AN ACCUSED WHO MUST DECIDE WHETHER TO
PLEAD GUILTY THAN TO AN ACCUSED WHO STANDS TRIAL.  SEE WILLIAMS V.
KAISER, 323 U.S. 471, 475.  PRIOR TO TRIAL AN ACCUSED IS ENTITLED TO
RELY UPON HIS COUNSEL TO MAKE AN INDEPENDENT EXAMINATION OF THE FACTS,
CIRCUMSTANCES, PLEADINGS AND LAWS INVOLVED AND THEN TO OFFER HIS
INFORMED OPINION AS TO WHAT PLEA SHOULD BE ENTERED.  DETERMINING
WHETHER AN ACCUSED IS GUILTY OR INNOCENT OF THE CHARGES IN A COMPLEX
LEGAL INDICTMENT IS SELDOM A SIMPLE AND EASY TASK FOR A LAYMAN, EVEN
THOUGH ACUTELY INTELLIGENT.  CONSPIRACY CHARGES FREQUENTLY ARE OF BROAD
AND CONFUSING SCOPE, AND THAT IS PARTICULARLY TRUE OF CONSPIRACIES
UNDER THE ESPIONAGE ACT.  SEE, E.G., GORIN V. UNITED STATES, 312 U.S.
19; UNITED STATES V. HEINE, 151 F.2D 813.  AND ESPECIALLY MISLEADING TO
A LAYMAN ARE THE OVERT ACT ALLEGATIONS OF A CONSPIRACY.  SUCH CHARGES
ARE OFTEN, AS IN THIS INDICTMENT, MERE STATEMENTS OF PAST ASSOCIATIONS
OR CONFERENCES WITH OTHER PERSONS, WHICH ACTIVITIES APPARENTLY ARE
ENTIRELY HARMLESS STANDING ALONE.  A LAYMAN READING THE OVERT ACT
CHARGES OF THIS INDICTMENT MIGHT REASONABLY THINK THAT ONE COULD BE
CONVICTED UNDER THE INDICTMENT SIMPLY BECAUSE HE HAD, IN PERFECT
INNOCENCE, ASSOCIATED WITH SOME CRIMINAL AT THE TIME AND PLACE
ALLEGED.  THE UNDISPUTED EVIDENCE IN THIS CASE THAT PETITIONER WAS
CONCERNED ABOUT MANY OF THESE LEGAL QUESTIONS - SUCH AS THE
SIGNIFICANCE OF THE OVERT ACT CHARGES, AND HER POSSIBILITIES OF DEFENSE
SHOULD ALL HER CO-DEFENDANTS PLEAD GUILTY - EMPHASIZES HER NEED FOR THE
AID OF COUNSEL AT THIS STAGE. 

THIRD.  IT IS THE SOLEMN DUTY OF A FEDERAL JUDGE BEFORE WHOM A
DEFENDANT APPEARS WITHOUT COUNSEL TO MAKE A THOROUGH INQUIRY AND TO
TAKE ALL STEPS NECESSARY TO INSURE THE FULLEST PROTECTION OF THIS
CONSTITUTIONAL RIGHT AT EVERY STAGE OF THE PROCEEDINGS.  JOHNSON V.
ZERBST, 304 U.S. 458, 463; HAWK V. OLSON, 326 U.S. 271, 278.  THIS DUTY
CANNOT BE DISCHARGED AS THOUGH IT WERE A MERE PROCEDURAL FORMALITY.  IN
POWELL V. ALABAMA, 287 U.S. 45, THE TRIAL COURT, INSTEAD OF APPOINTING
COUNSEL PARTICULARLY CHARGED WITH THE SPECIFIC DUTY OF REPRESENTING THE
DEFENDANTS, APPOINTED THE ENTIRE LOCAL BAR.  THIS COURT TREATED SUCH A
CAVALIER DESIGNATION OF COUNSEL AS A MERE GESTURE, AND DECLINED TO
RECOGNIZE IT AS A COMPLIANCE WITH THE CONSTITUTIONAL MANDATE RELIED ON
IN THAT CASE.  IT IS IN THIS LIGHT THAT WE VIEW THE APPOINTMENT OF
COUNSEL FOR PETITIONER WHEN SHE WAS ARRAIGNED.  THIS LAWYER, APPARENTLY
RELUCTANT TO ACCEPT THE CASE AT ALL, AGREED TO REPRESENT HER ONLY WHEN
PROMISED BY THE JUDGE THAT IT WOULD TAKE ONLY TWO OR THREE MINUTES TO
PERFORM HIS DUTY.  AND IT SEEMS TO HAVE TAKEN NO LONGER.  EVEN THOUGH
WE ASSUME THAT THIS ATTORNEY DID THE VERY BEST HE COULD UNDER THE
CIRCUMSTANCES, WE CANNOT ACCEPT THIS DESIGNATION OF COUNSEL BY THE
TRIAL COURT AS ANYTHING MORE THAN TOKEN OBEDIENCE TO HIS
CONSTITUTIONALLY REQUIRED DUTY TO APPOINT COUNSEL FOR PETITIONER. 
ARRAIGNMENT IS TOO IMPORTANT A STEP IN A CRIMINAL PROCEEDING TO GIVE
SUCH WHOLLY INADEQUATE REPRESENTATION TO ONE CHARGED WITH A CRIME.  THE
HOLLOW COMPLIANCE WITH THE MANDATE OF THE CONSTITUTION AT A STAGE SO
IMPORTANT AS ARRAIGNMENT MIGHT BE ENOUGH IN ITSELF TO CONVINCE ONE LIKE
PETITIONER, WHO PREVIOUSLY HAD NEVER SET FOOT IN AN AMERICAN COURTROOM,
THAT A WAIVER OF THIS RIGHT TO COUNSEL WAS NO GREAT LOSS - JUST ANOTHER
LEGALISTIC FORMALITY.  WE ARE UNABLE TO AGREE WITH THE GOVERNMENT'S
ARGUMENT THAT THE MOMENTARY APPOINTMENT OF THE LAWYER FOR ARRAIGNMENT
PURPOSES SUPPORTS THE CONTENTION THAT THE PETITIONER INTELLIGENTLY
WAIVED HER RIGHT TO COUNSEL.  IN FACT, THAT COURT EPISODE POINTS IN THE
OTHER DIRECTION, FOR THE JUDGE THEN TOLD THE PETITIONER THAT HE WOULD
APPOINT ANOTHER LAWYER "RIGHT AWAY" FOR HER - WHICH HE NEVER DID UNTIL
LONG AFTER SHE HAD PLEADED GUILTY, TOO LATE TO DO HER ANY GOOD. 

FOURTH.  WE HAVE SAID:  "THE CONSTITUTIONAL RIGHT OF AN ACCUSED TO BE
REPRESENTED BY COUNSEL INVOKES, OF ITSELF, THE PROTECTION OF A TRIAL
COURT, IN WHICH THE ACCUSED - WHOSE LIFE OR LIBERTY IS AT STAKE - IS
WITHOUT COUNSEL.  THIS PROTECTING DUTY IMPOSES THE SERIOUS AND WEIGHTY
RESPONSIBILITY UPON THE TRIAL JUDGE OF DETERMINING WHETHER THERE IS AN
INTELLIGENT AND COMPETENT WAIVER BY THE ACCUSED."  FN6  TO DISCHARGE
THIS DUTY PROPERLY IN LIGHT OF THE STRONG PRESUMPTION AGAINST WAIVER OF
THE CONSTITUTIONAL RIGHT TO COUNSEL,  FN7  A JUDGE MUST INVESTIGATE AS
LONG AND AS THOROUGHLY AS THE CIRCUMSTANCES OF THE CASE BEFORE HIM
DEMAND.  THE FACT THAT AN ACCUSED MAY TELL HIM THAT HE IS INFORMED OF
HIS RIGHT TO COUNSEL AND DESIRES TO WAIVE THIS RIGHT DOES NOT
AUTOMATICALLY END THE JUDGE'S RESPONSIBILITY.  TO BE VALID SUCH WAIVER
MUST BE MADE WITH AN APPREHENSION OF THE NATURE OF THE CHARGES, THE
STATUTORY OFFENSES INCLUDED WITHIN THEM, THE RANGE OF ALLOWABLE
PUNISHMENTS THEREUNDER, POSSIBLE DEFENSES TO THE CHARGES AND
CIRCUMSTANCES IN MITIGATION THEREOF, AND ALL OTHER FACTS ESSENTIAL TO A
BROAD UNDERSTANDING OF THE WHOLE MATTER.  A JUDGE CAN MAKE CERTAIN THAT
AN ACCUSED'S PROFESSED WAIVER OF COUNSEL IS UNDERSTANDINGLY AND WISELY
MADE ONLY FROM A PENETRATING AND COMPREHENSIVE EXAMINATION OF ALL THE
CIRCUMSTANCES UNDER WHICH SUCH A PLEA IS TENDERED.   THIS CASE
GRAPHICALLY ILLUSTRATES THAT A MERE ROUTINE INQUIRY - THE ASKING OF
SEVERAL STANDARD QUESTIONS FOLLOWED BY THE SIGNING OF A STANDARD
WRITTEN WAIVER OF COUNSEL - MAY LEAVE A JUDGE ENTIRELY UNAWARE OF THE
FACTS ESSENTIAL TO AN INFORMED DECISION THAT AN ACCUSED HAS EXECUTED A
VALID WAIVER OF HIS RIGHT TO COUNSEL.  AND THIS CASE SHOWS THAT SUCH
ROUTINE INQUIRIES MAY BE INADEQUATE ALTHOUGH THE CONSTITUTION "DOES NOT
REQUIRE THAT UNDER ALL CIRCUMSTANCES COUNSEL BE FORCED UPON A
DEFENDANT."  CARTER V. ILLINOIS, 329 U.S. 173, 174-175.  FOR THE RECORD
DEMONSTRATES THAT THE PETITIONER WELCOMED LEGAL AID FROM ALL POSSIBLE
SOURCES; THERE WOULD HAVE BEEN NO NECESSITY FOR FORCING COUNSEL ON
HER. 

TWICE THE COURT DID DESIGNATE COUNSEL FOR PETITIONER.  THE FIRST
OCCASION WAS UPON HER ARRAIGNMENT.  PETITIONER APPEARS WILLINGLY TO
HAVE COOPERATED WITH THIS APPOINTED COUNSEL FOR THE TWO OR THREE
MINUTES HE WAS CALLED UPON TO ACT.  THE SECOND OCCASION WAS WHEN
COUNSEL WAS NAMED FOR THE SOLE PURPOSE OF MOVING TO WITHDRAW HER PLEA
OF GUILTY.  NOTWITHSTANDING HER UNFORTUNATE FIRST ENCOUNTER WITH COURT
APPOINTED COUNSEL AND DESPITE THE FACT THAT COUNSEL WAS NOT DESIGNATED
THE SECOND TIME UNTIL IT WAS OBVIOUSLY MONTHS TOO LATE TO SUBMIT THIS
MOTION UNDER THE PROCEDURAL RULES, THERE IS NO COMPLAINT THAT THE
PETITIONER FAILED TO COOPERATE WITH HIM.  AND THE RECORD IS FILLED WITH
EVIDENCE FROM MANY WITNESSES THAT THE PETITIONER PERSISTENTLY SOUGHT
LEGAL ADVICE FROM ALL OF THE VERY LIMITED NUMBER OF PEOPLE SHE WAS
PERMITTED TO SEE DURING THE PERIOD OF HER CLOSE INCARCERATION BEFORE
HER PLEA OF GUILTY WAS ENTERED.  IT IS APPARENT FROM THE RECORD THAT
WHEN SHE DID PLEAD GUILTY THE SLIGHTEST DEVIATION FROM THE COURT'S
ROUTINE PROCEDURE WOULD HAVE REVEALED THE PETITIONER'S PERPLEXITY AND
DOUBT.  FOR THE TESTIMONY OF ALL THE WITNESSES POINTS UNERRINGLY TO THE
EXISTENCE OF THE UNCERTAINTY WHICH WAS OBVIOUSLY JUST BELOW THE SURFACE
OF THE PETITIONER'S STATEMENTS TO THE JUDGE. 

FIFTH.  THE RIGHT TO COUNSEL GUARANTEED BY THE CONSTITUTION
CONTEMPLATES THE SERVICES OF AN ATTORNEY DEVOTED SOLELY TO THE
INTERESTS OF HIS CLIENT.  GLASSER V. UNITED STATES, 315 U.S. 60, 70. 
BEFORE PLEADING GUILTY THIS PETITIONER UNDOUBTEDLY RECEIVED ADVICE AND
COUNSEL ABOUT THE INDICTMENT AGAINST HER, THE LEGAL QUESTIONS INVOLVED
IN A UNDER IT, AND MANY OTHER MATTERS CONCERNING HER CASE.  THIS
COUNSEL CAME SOLELY FROM GOVERNMENT REPRESENTATIVES, SOME OF WHOM WERE
LAWYERS.  THE RECORD SHOWS THAT THESE REPRESENTATIVES WERE UNIFORMLY
COURTEOUS TO HER, ALTHOUGH THERE IS NO INDICATION THAT THEY EVER
DEVIATED IN THE SLIGHTEST FROM THE COURSE DICTATED BY THEIR LOYALTY TO
THE GOVERNMENT AS ITS AGENTS.  IN THE COURSE OF HER ASSOCIATION WITH
THESE AGENTS, SHE APPEARS TO HAVE DEVELOPED A GREAT CONFIDENCE IN
THEM.  SOME OF THEIR EVIDENCE INDICATES A LIKE CONFIDENCE IN HER.  FN8 

THE CONSTITUTION DOES NOT CONTEMPLATE THAT PRISONERS SHALL BE
DEPENDENT UPON GOVERNMENT AGENTS FOR LEGAL COUNSEL AND AID, HOWEVER
CONSCIENTIOUS AND ABLE THOSE AGENTS MAY BE.  UNDIVIDED ALLEGIANCE AND
FAITHFUL, DEVOTED SERVICE TO A CLIENT ARE PRIZED TRADITIONS OF THE
AMERICAN LAWYER.  FN9  IT IS THIS KIND OF SERVICE FOR WHICH THE SIXTH
AMENDMENT MAKES PROVISION.  AND NOWHERE IS THIS SERVICE DEEMED MORE
HONORABLE THAN IN CASE OF APPOINTMENT TO REPRESENT AN ACCUSED TOO POOR
TO HIRE A LAWYER, EVEN THOUGH THE ACCUSED MAY BE A MEMBER OF AN
UNPOPULAR OR HATED GROUP, OR MAY BE CHARGED WITH AN OFFENSE WHICH IS
PECULIARLY ABHORRENT. 

THE ADMITTED CIRCUMSTANCES HERE CANNOT SUPPORT A HOLDING THAT
PETITIONER INTELLIGENTLY AND UNDERSTANDINGLY WAIVED HER RIGHT TO
COUNSEL.  SHE WAS ENTITLED TO COUNSEL OTHER THAN THAT GIVEN HER BY
GOVERNMENT AGENTS.  SHE IS STILL ENTITLED TO THAT COUNSEL BEFORE HER
LIFE OR HER LIBERTY CAN BE TAKEN FROM HER. 

WHAT HAS BEEN SAID REPRESENTS THE VIEWS OF MR. JUSTICE BLACK, MR.
JUSTICE DOUGLAS, MR. JUSTICE MURPHY, AND MR. JUSTICE RUTLEDGE.  THEY
WOULD THEREFORE REVERSE THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS,
SET ASIDE THE PRIOR JUDGMENT OF THE DISTRICT COURT AND DIRECT THAT
COURT TO GRANT THE PETITIONER'S PRAYER FOR RELEASE FROM FURTHER
IMPRISONMENT UNDER THE JUDGMENT BASED ON HER PLEA OF GUILTY.  MR.
JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON, FOR THE REASONS STATED IN
A SEPARATE OPINION, AGREE THAT THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS SHOULD BE REVERSED, AND THAT THE DISTRICT COURT'S PRIOR
JUDGMENT SHOULD BE SET ASIDE, BUT THEY ARE OF THE OPINION THAT, AFTER
SETTING ASIDE ITS JUDGMENT, THE DISTRICT COURT SHOULD FURTHER CONSIDER,
AND MAKE EXPLICIT FINDINGS ON, THE QUESTIONS OF FACT DISCUSSED IN THE
SEPARATE OPINION. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS SET ASIDE.  THE CAUSE IS REMANDED TO THE DISTRICT
COURT SO THAT IT MAY HOLD FURTHER HEARINGS AND GIVE CONSIDERATION TO,
AND MAKE EXPLICIT FINDINGS ON, THE QUESTIONS OF FACT DISCUSSED IN THE
SEPARATE OPINION.  IF UPON SUCH FURTHER HEARINGS AND CONSIDERATION THE
DISTRICT COURT FINDS THAT THE PETITIONER DID NOT COMPETENTLY,
INTELLIGENTLY, AND WITH FULL UNDERSTANDING OF THE IMPLICATIONS, WAIVE
HER CONSTITUTIONAL RIGHT TO COUNSEL, AN ORDER SHOULD BE ENTERED
DIRECTING THAT SHE BE RELEASED FROM FURTHER CUSTODY UNDER THE JUDGMENT
BASED ON HER PLEA.  IT IS SO ORDERED. 

FN1  SECTION 32 DEFINES THE SUBSTANTIVE CRIME OF ESPIONAGE.  SECTION
34 DECLARES CONSPIRACIES TO VIOLATE SEC. 32 TO BE UNLAWFUL.  40 STAT.
217, 50 U.S.C. SECS. 32, 34. 

FN2  WALEY V. JOHNSTON, 316 U.S. 101; WALKER V. JOHNSTON, 312 U.S.
275, 286; JOHNSON V. ZERBST, 304 U.S. 458, 467; CF. SUNAL V. LARGE, 332
U.S. 174, 177. 

FN3  "Q.  AND DID YOU DURING THAT DISCUSSION USE A ILLUSTRATION ABOUT
A RUM RUNNER? 

"A.  WELL, I HEARD MRS. VON MOLTKE SAY THAT, AND SINCE SHE DID I HAVE
BEEN TRYING TO RECALL, AND I CANNOT REMEMBER SUCH AN ILLUSTRATION. 

"Q.  I SEE. 

"A.  BUT IT IS QUITE POSSIBLE THAT MRS. VON MOLTKE'S MEMORY IS BETTER
THAN MINE, AND I MAY HAVE USED SUCH AN ILLUSTRATION." 

FN4  RULE II (4) OF THE CRIMINAL APPEALS RULES, EFFECTIVE SEPTEMBER
1, 1934, THEN REQUIRED SUCH MOTIONS TO BE FILED WITHIN TEN DAYS AFTER
ENTRY OF THE PLEA AND BEFORE IMPOSITION OF SENTENCE.  SWIFT V. UNITED
STATES, 79 U.S. APP. D.C. 387, 148 F.2D 361; SEE HOOD V. UNITED STATES,
152 F.2D 431, 435; UNITED STATES V. ACHTNER, 144 F.2D 49, 52.  IT HAS
SINCE BEEN LIBERALIZED BY RULE 32(D) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, EFFECTIVE MARCH 21, 1946. 

PETITIONER'S BRIEF STATES THAT THE COURT DENIED HER MOTION TO WITHDRAW
THE PLEA OF GUILTY "WITHOUT TAKING ANY TESTIMONY OR PERMITTING
PETITIONER TO TAKE THE STAND  ...  "  THE GOVERNMENT HAS NOT CHALLENGED
THAT STATEMENT.  THERE IS NOTHING IN THE RECORD WHICH INDICATES THAT
THE JUDGE ALLOWED ANY WITNESSES TO TESTIFY ON THE MOTION.  NEVERTHELESS
THE JUDGE, "AFTER CONSIDERATION OF SAID MOTION AND OF THE ARGUMENTS
PRESENTED," MADE PURPORTED FINDINGS OF FACT TO THE EFFECT THAT SHE HAD
PLEADED GUILTY "AFTER DUE AND CAREFUL DELIBERATION" AND THAT AT THE
TIME SHE ENTERED THE PLEA SHE "THOROUGHLY UNDERSTOOD THE NATURE OF THE
CHARGE CONTAINED IN THE INDICTMENT."  NEITHER THE MAJORITY NOR THE
MINORITY OPINION OF THE CIRCUIT COURT OF APPEALS REFERRED TO THESE SO
CALLED "FINDINGS" AS A SUPPORT FOR DENIAL OF THE MOTION TO WITHDRAW THE
PLEA OF GUILTY.  THE CIRCUIT COURT OF APPEALS SIMPLY JUSTIFIED THE
DENIAL ON THE GROUND THAT THE MOTION WAS FILED "FAR TOO LATE." 

FN5  ON THIS SAME SUBJECT SEE ORFIELD, CRIMINAL PROCEDURE FROM ARREST
TO APPEAL (1947) AT 300: "SINCE A PLEA OF GUILTY IS A CONFESSION IN
OPEN COURT AND A WAIVER OF TRIAL, IT HAS ALWAYS BEEN RECEIVED WITH
GREAT CAUTION.  IT IS THE DUTY OF THE COURT TO SEE THAT THE DEFENDANT
THOROUGHLY UNDERSTANDS THE SITUATION AND ACTS VOLUNTARILY BEFORE
RECEIVING IT."  SEE ALSO 4 BLACKSTONE, COMMENTARIES AT* 329:  "UPON A
SIMPLE AND PLAIN CONFESSION, THE COURT HATH NOTHING TO DO BUT TO AWARD
JUDGMENT; BUT IT IS USUALLY VERY BACKWARD IN RECEIVING AND RECORDING
SUCH CONFESSION, OUT OF TENDERNESS TO THE LIFE OF THE SUBJECT; AND WILL
GENERALLY ADVISE THE PRISONER TO RETRACT IT AND PLEAD TO THE
INDICTMENT," AND BOWYER, COMMENTARIES ON THE CONSTITUTIONAL LAW OF
ENGLAND (1846) AT 355:  "THE CIVIL LAW WILL NOT ALLOW A MAN TO BE
CONVICTED ON HIS BARE CONFESSION, NOT CORROBORATED BY EVIDENCE OF HIS
GUILT, BECAUSE THERE MAY BE CIRCUMSTANCES WHICH MAY INDUCE AN INNOCENT
MAN TO ACCUSE HIMSELF." 

FN6  JOHNSON V. ZERBST, 304 U.S. 458, 465; SEE ALSO ADAMS V. UNITED
STATES EX REL. MCCANN, 317 U.S. 269, 270. 

FN7  JOHNSON V. ZERBST, 304 U.S. 458, 464; GLASSER V. UNITED STATES,
315 U.S. 60, 70. 

FN8  SEE NOTE 3, SUPRA. 

FN9  AMERICAN BAR ASSOCIATION, CANONS OF PROFESSIONAL AND JUDICIAL
ETHICS, CANON 15:  "THE LAWYER OWES 'ENTIRE DEVOTION TO THE INTEREST OF
THE CLIENT, WARM ZEAL IN THE MAINTENANCE AND DEFENSE OF HIS RIGHTS AND
THE EXERTION OF HIS UTMOST LEARNING AND ABILITY,' TO THE END THAT
NOTHING BE TAKEN OR BE WITHHELD FROM HIM, SAVE BY THE RULES OF LAW,
LEGALLY APPLIED.  NO FEAR OF JUDICIAL DISFAVOR OR PUBLIC UNPOPULARITY
SHOULD RESTRAIN HIM FROM THE FULL DISCHARGE OF HIS DUTY.  IN THE
JUDICIAL FORUM THE CLIENT IS ENTITLED TO THE BENEFIT OF ANY AND EVERY
REMEDY AND DEFENSE THAT IS AUTHORIZED BY THE LAW OF THE LAND, AND HE
MAY EXPECT HIS LAWYER TO ASSERT EVERY SUCH REMEDY OR DEFENSE." 

CANON 4:  "A LAWYER ASSIGNED AS COUNSEL FOR AN INDIGENT PRISONER
OUGHT NOT TO ASK TO BE EXCUSED FOR ANY TRIVIAL REASON, AND SHOULD
ALWAYS EXERT HIS BEST EFFORTS IN HIS BEHALF." 

SEPARATE OPINION OF MR. JUSTICE FRANKFURTER, IN WHICH MR. JUSTICE
JACKSON JOINS. 

THE APPROPRIATE DISPOSITION OF THIS CASE TURNS FOR ME ON THE TRUTH OF
PETITIONER'S ALLEGATION THAT SHE WAS ADVISED BY AN F.B.I. AGENT, ACTIVE
IN THE CASE, THAT ONE WHO MERELY ASSOCIATED, HOWEVER INNOCENTLY, WITH
PERSONS WHO WERE PARTIES TO A CRIMINAL CONSPIRACY WAS EQUALLY GUILTY. 

WE ARE DEALING, NO DOUBT, WITH A PERSON OF INTELLECTUAL ACUTENESS. 
BUT IT WOULD BE VERY RARE, INDEED, EVEN FOR AN EXTREMELY INTELLIGENT
LAYMAN TO HAVE THE UNDERSTANDING NECESSARY TO DECIDE WHAT COURSE WAS
BEST CALCULATED TO SERVE HER INTERESTS WHEN CHARGED WITH PARTICIPATION
IN A CONSPIRACY.  THE TOO EASY ABUSES TO WHICH A CHARGE OF CONSPIRACY
MAY BE PUT HAVE OCCASIONED WEIGHTY ANIMADVERSION BY THE CONFERENCE OF
SENIOR CIRCUIT JUDGES.  REPORT OF THE ATTORNEY GENERAL, 1925, PP. 5-6;
AND SEE ALSO THE OBSERVATIONS OF JUDGE LEARNED HAND IN UNITED STATES V.
FALCONE, 109 F.2D 579, 581; AFFIRMED IN 311 U.S. 205.  THE SUBTLETIES
OF REFINED DISTINCTIONS TO WHICH A CHARGE OF CONSPIRACY MAY GIVE RISE
ARE REFLECTED IN THIS COURT'S DECISIONS.  SEE, E.G., KOTTEAKOS V.
UNITED STATES, 328 U.S. 750.  BECAUSE OF ITS COMPLEXITY, THE LAW OF
CRIMINAL CONSPIRACY, AS IT HAS UNFOLDED, IS MORE DIFFICULT OF
COMPREHENSION BY THE LAITY THAN THAT WHICH DEFINES OTHER TYPES OF
CRIMES.  THUS, AS MAY HAVE BEEN TRUE OF PETITIONER, AN ACCUSED MIGHT BE
FOUND IN THE NET OF A CONSPIRACY BY REASON OF THE RELATION OF HER ACTS
TO ACTS OF OTHERS, THE SIGNIFICANCE OF WHICH SHE MAY NOT HAVE
APPRECIATED, AND WHICH MAY RESULT FROM THE APPLICATION OF CRITERIA MORE
DELICATE THAN THOSE WHICH DETERMINE GUILT AS TO THE USUAL SUBSTANTIVE
OFFENSES.  ACCORDINGLY, IF AN F.B.I. AGENT, ACTING AS A MEMBER OF THE
PROSECUTION, GAVE HER, HOWEVER HONESTLY, CLEARLY ERRONEOUS LEGAL ADVICE
FN1  WHICH MIGHT WELL HAVE INDUCED HER TO BELIEVE THAT SHE WAS GUILTY
UNDER THE LAW AS EXPOUNDED TO HER BY ONE WHO FOR HER REPRESENTED THE
GOVERNMENT, A PERSON IN THE PETITIONER'S SITUATION MIGHT WELL HAVE
THOUGHT A DEFENSE FUTILE AND THE MERCY OF THE COURT HER BEST HOPE. 
SUCH MIGHT HAVE BEEN HER CONCLUSION, HOWEVER INNOCENT SHE MAY HAVE
DEEMED HERSELF TO BE.  I COULD NOT REGARD A PLEA OF GUILTY MADE UNDER
SUCH CIRCUMSTANCES, MADE WITHOUT EITHER THE ADVICE OF COUNSEL
EXCLUSIVELY REPRESENTING HER OR AFTER A SEARCHING INQUIRY BY THE COURT
INTO THE UNDERSTANDING THAT LAY BEHIND IT, AS HAVING BEEN MADE ON THE
NECESSARY BASIS OF INFORMED, SELF-DETERMINED CHOICE. 

OF COURSE AN ACCUSED "IN THE EXERCISE OF A FREE AND INTELLIGENT
CHOICE, AND WITH THE CONSIDERED APPROVAL OF THE COURT  ...  MAY  ...
COMPETENTLY AND INTELLIGENTLY WAIVE" HIS RIGHT TO THE ASSISTANCE OF
COUNSEL GUARANTEED BY THE SIXTH AMENDMENT.  ADAMS V. UNITED STATES EX
REL. MCCANN, 317 U.S. 269, 275; AND SEE PATTON V. UNITED STATES, 281
U.S. 276, AND JOHNSON V. ZERBST, 304 U.S. 458.  THERE MUST BE BOTH THE
CAPACITY TO MAKE AN UNDERSTANDING CHOICE AND AN ABSENCE OF SUBVERTING
FACTORS SO THAT THE CHOICE IS CLEARLY FREE AND RESPONSIBLE.  IF THE
CHOICE IS BECLOUDED, WHETHER BY DURESS OR BY MISLEADING ADVICE, HOWEVER
HONESTLY OFFERED BY A MEMBER OF THE PROSECUTION, A PLEA OF GUILTY
ACCEPTED WITHOUT MORE THAN WHAT THIS RECORD DISCLOSES CAN HARDLY BE
CALLED A REFUSAL TO PUT THE INNER FEELING OF INNOCENCE TO THE FAIR TEST
OF THE LAW WITH INTELLIGENT AWARENESS OF CONSEQUENCES.  THEREFORE, IF
THE F.B.I. AGENT HAD ADMITTED THAT THE PETITIONER ACCURATELY STATED HIS
ADVICE TO HER, OR IF THE DISTRICT COURT UPON A CONFLICT OF TESTIMONY
HAD FOUND THAT MEMORY OR TRUTH LAY WITH THE PETITIONER, I COULD NOT
ESCAPE THE CONCLUSION THAT THE CIRCUMSTANCES UNDER WHICH THE
PETITIONER'S PLEA OF GUILTY WAS ACCEPTED DID NOT MEASURE UP TO THE
SAFEGUARDS HERETOFORE ENUNCIATED BY THIS COURT FOR ACCEPTING A PLEA OF
GUILTY, ESPECIALLY WHERE A SENTENCE OF DEATH WAS AT HAZARD. 

ON THE RECORD AS WE HAVE IT, HOWEVER, I CANNOT TELL WHETHER THE
ADVICE WHICH, IF GIVEN, WOULD HAVE COLORED THE PLEA OF GUILTY WAS
ACTUALLY GIVEN.  IF THE UNREVEALING WORDS OF THE COLD RECORD SPOKE TO
ME WITH THE CLARITY WHICH THEY CONVEY TO FOUR OF MY BRETHREN, I SHOULD
AGREE THAT THE PETITIONER MUST BE DISCHARGED.  CONVERSELY, IF THE
DISTRICT COURT'S OPINION CONVEYED TO ME THE FINDINGS WHICH IT RADIATES
TO MY OTHER BRETHREN, I TOO WOULD CONCLUDE THAT THE JUDGMENT SHOULD BE
AFFIRMED.    UNFORTUNATELY, THE RECORD DOES NOT GIVE ME A FIRM BASIS
FOR JUDGMENT REGARDING THE CRUCIAL ISSUE OF THE F.B.I. AGENT'S ADVICE
TO THE PETITIONER.  IT IS NOT DISPUTED THAT THE AGENT, WHO WAS ALSO A
LAWYER, DID TALK WITH HER AND DID DISCUSS LEGAL ISSUES WITH HER.  BUT
HE NEITHER ADMITTED NOR DENIED WHETHER, IN THE COURSE OF HIS
DISCUSSIONS WITH HER, HE EXPOUNDED THE LAW SO AS HARDLY TO LEAVE HER
ESCAPE, HOWEVER INNOCENT UNDER A CORRECT VIEW OF THE LAW SHE MAY HAVE
BEEN.  HE DID NOT EVEN SUGGEST THAT EVEN THOUGH HE DID NOT REMEMBER, HE
WAS CONFIDENT THAT HE COULD NOT HAVE GIVEN HER THE KIND OF MISLEADING
LEGAL INFORMATION SHE ATTRIBUTED TO HIM.  ON THE CONTRARY, HE ADDED
THAT "IT IS QUITE POSSIBLE THAT MRS. VON MOLTKE'S MEMORY IS BETTER THAN
MINE."  FN2  FROM THE DEAD PAGE, IN CONNECTION WITH THE REST OF THE
AGENT'S TESTIMONY, THIS SUGGESTS A SCRUPULOUS WITNESS.  BUT I CANNOT
NOW RECREATE HIS TONE OF VOICE OR THE GLOSS THAT PERSONALITY PUTS UPON
SPEECH.  THEREFORE I AM UNABLE TO DETERMINE WHETHER THE PETITIONER
PLEADED GUILTY IN RELIANCE ON THE PALPABLY ERRONEOUS ADVICE OF AN
F.B.I. LAWYER-AGENT WHO, AS THE SYMBOL OF THE PROSECUTION, OWED IT TO
AN ACCUSED IN PETITIONER'S POSITION TO GIVE HER ACCURATE GUIDANCE, IF
HE GAVE ANY. 

NOR DOES THE DISTRICT JUDGE'S OPINION RESOLVE THESE DIFFICULTIES FOR
ME.  FROM WHAT HE WROTE IT WOULD BE THE MOST TENUOUS GUESSING WHETHER
HE REJECTED THE PETITIONER'S ACCOUNT OF THE F.B.I. AGENT'S COUNSELLING
OR WHETHER HE DID NOT ATTACH TO THAT ISSUE THE LEGAL SIGNIFICANCE WHICH
I DEEM CONTROLLING.  FN3  SINCE THE RECORD AFFORDS NEITHER RESOLVING
EVIDENCE NOR THE DISTRICT COURT'S FINDING ON WHAT I DEEM TO BE THE
CIRCUMSTANCE OF CONTROLLING IMPORTANCE, I WOULD SEND THE CAUSE BACK TO
THE DISTRICT COURT FOR FURTHER PROCEEDINGS WITH A VIEW TO A SPECIFIC
FINDING OF FACT REGARDING THE CONVERSATION BETWEEN PETITIONER AND THE
F.B.I. AGENT, WITH AS CLOSE A RECREATION OF THE INCIDENT AS IS NOW
POSSIBLE. 

FN1  THIS IS THE PRECISE TESTIMONY:  "THAT IF THERE IS A GROUP OF
PEOPLE IN A 'RUM' PLAN WHO VIOLATE THE LAW, AND ANOTHER PERSON IS THERE
AND THE PERSON DOESN'T KNOW THE PEOPLE WHO ARE PLANNING THE VIOLATION
AND DOESN'T KNOW WHAT IS GOING ON, BUT STILL IT SEEMED AFTER TWO YEARS
THIS PLAN IS CARRIED OUT, IN THE LAW THE MAN WHO WAS PRESENT BECOMES
...  THE PERSON NEVERTHELESS IS GUILTY OF CONSPIRACY."  THE LAW, OF
COURSE, IS PRECISELY TO THE CONTRARY.  UNITED STATES V. FALCONE, 311
U.S. 205, 210. 

FN2  "Q.  AND DID YOU (THE F.B.I. AGENT) DURING THAT DISCUSSION USE A
ILLUSTRATION ABOUT A RUM RUNNER? 

"A.  WELL, I HEARD MRS. VON MOLTKE SAY THAT, AND SINCE SHE DID I HAVE
BEEN TRYING TO RECALL, AND I CANNOT REMEMBER SUCH AN ILLUSTRATION. 

"Q.  I SEE. 

"A.  BUT IT IS QUITE POSSIBLE THAT MRS. VON MOLTKE'S MEMORY IS BETTER
THAN MINE, AND I MAY HAVE USED SUCH AN ILLUSTRATION." 

FN3  THE DISTRICT JUDGE INDICATED ABANDONMENT OF THE CHARGES THAT THE
"AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION MISLEAD HER OR MADE
PROMISES TO HER THAT, WHICH AT LEAST (IN) SOME DEGREE, INFLUENCED HER
ACTION IN PLEADING GUILTY TO THE CHARGE," BUT "FOR THE PURPOSE OF THE
RECORD" HE STATED "MOST VIGOROUSLY THAT THERE WAS ABSOLUTELY NOTHING IN
THE TESTIMONY SUSTAINING SUCH CHARGES OR IMPLICATIONS."  WHILE IT DOES
APPEAR, FROM THE RECORD, THAT PETITIONER ABANDONED HER CHARGE OF
COERCION, THERE IS NOTHING TO BUTTRESS THE SUGGESTION THAT SHE
ABANDONED THE CHARGE THAT SHE HAD BEEN MISLED BY THE AGENT, AND I
THEREFORE READ THE STATEMENT AS REFERRING TO THREATS OR PROMISES TO
INDUCE CONFESSION BY THE PETITIONER.  THE DISTRICT JUDGE GAVE NO
INTIMATION WHATEVER THAT IN HIS VIEW THE PLEA OF GUILTY IN CONNECTION
WITH ALL THE OTHER CIRCUMSTANCES COULD NOT BE DEEMED TO HAVE BEEN
INTELLIGENTLY TENDERED, IF IN FACT IT WAS INFLUENCED BY THE F.B.I.
AGENT'S EXPOSITION OF THE LAW, AS ASSERTED BY THE PETITIONER.  NOWHERE
IS THERE A SUGGESTION THAT ALTHOUGH THE AGENT WAS NOT PREPARED TO SAY
HER MEMORY OF THE INTERVIEW WAS FALSE OR INCORRECT, THE DISTRICT JUDGE
REJECTED HER ACCOUNT. 

MR. JUSTICE BURTON, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE REED
CONCUR, DISSENTING. 

AS THE ISSUES IN THIS CASE ARE FACTUAL AND DEAL LARGELY WITH THE
CREDIBILITY OF WITNESSES, THE BINDING FORCE OF THIS DECISION AS A
PRECEDENT IS NARROW.  HOWEVER, TO GUARD AGAINST UNDUE EXTENSION OF ITS
INFLUENCE, A RECORDED DISSENT SEEMS JUSTIFIED. 

THE GOVERNMENT DOES NOT CONTEST THE RELEASE OF THE PETITIONER IF SHE
ESTABLISHES, AS A MATTER OF FACT, THAT EITHER HER LONG CONSIDERED AND
UNEQUIVOCAL PLEA OF GUILTY IN THE ORIGINAL PROCEEDINGS AGAINST HER FOR
VIOLATION OF THE ESPIONAGE ACT OR HER WRITTEN AND OTHERWISE CLEARLY
STATED WAIVER OF COUNSEL IN THOSE PROCEEDINGS WAS NOT FREELY,
INTELLIGENTLY AND KNOWINGLY MADE.  THE GOVERNMENT VIGOROUSLY CONTENDS
THAT SHE HAS FAILED IN THIS PROCEEDING TO ESTABLISH EITHER OF THOSE
FACTS.  WE AGREE WITH THE GOVERNMENT.  SHE HAS FAILED TO DO SO AND,
HAVING SO FAILED, SHE IS NOT ENTITLED TO RELEASE.  THE PRINTED RECORD
DOES NOT REQUIRE REVERSAL OF THE JUDGMENT.  THE UNIFORM FINDINGS OF
FACT AGAINST HER BY THE THREE TRIAL JUDGES WHO SEPARATELY SAW AND HEARD
HER ARE AMPLY SUSTAINABLE. 

THE PETITIONER MADE HER PLEA OF GUILTY AND FILED HER WAIVER OF
COUNSEL IN OPEN COURT BEFORE DISTRICT JUDGE ARTHUR F. LEDERLE ON
OCTOBER 7, 1943.  IN NOVEMBER, 1944, AFTER CONSIDERATION AND DENIAL OF
HER MOTION FOR LEAVE TO WITHDRAW HER PLEA OF GUILTY, SHE WAS SENTENCED
BY DISTRICT JUDGE EDWARD J. MOINET.  SHE HAS MADE NO DIRECT ATTACK ON
THE JUDGMENT AGAINST HER.  ACCORDINGLY, BEFORE CONSIDERING THE
EXCEPTIONAL BURDEN OF PROOF WHICH SHE MUST BEAR IN MAKING A COLLATERAL
ATTACK UPON THAT JUDGMENT MORE THAN A YEAR AFTER IT WAS ENTERED, IT IS
WELL TO EXAMINE THE PROCESS OF LAW WHICH LED UP TO THIS JUDGMENT. 

AT HER ARRAIGNMENT, SEPTEMBER 21, 1943, BEFORE DISTRICT JUDGE EDWARD
J. MOINET, SHE WAS ASSIGNED COUNSEL TO ASSIST HER DURING THE
ARRAIGNMENT.  SUCH COUNSEL ADVISED HER TO STAND MUTE.  SHE DID SO.
THIS CONDUCT PRESERVED HER FULL RIGHTS AND IT HAS NOT PREJUDICED HER
POSITION.  A PLEA OF NOT GUILTY WAS ENTERED FOR HER.  THIS LEFT HER
FREE TO STAND BY IT OR TO CHANGE IT TO A PLEA OF GUILTY AS SHE LATER
DID.  THERE IS NO INDICATION THAT OTHER COUNSEL COULD HAVE DONE MORE
FOR HER THAN WAS DONE.  SHE THUS WAS MADE AWARE THAT THE COURT WOULD
ASSIGN COUNSEL TO ASSIST HER.  IN FACT SHE TESTIFIED THAT, AFTER THE
ARRAIGNMENT, "JUDGE MOINET SAID HE WOULD APPOINT AN ATTORNEY RIGHT
AWAY, AND I UNDERSTOOD THAT THE GENTLEMAN WAS TO BE EXPECTED TO COME
RIGHT AWAY."  THIS REFERRED TO THE PERIOD AFTER HER ARRAIGNMENT. 

IN ADDITION TO THIS CONTACT WITH THE ATTITUDE OF THE COURT ON THE
SUBJECT OF COUNSEL, SHE FREQUENTLY DISCUSSED THE SUBJECT OF COUNSEL
WITH HER HUSBAND.  HE HIMSELF HAD SOME LEGAL EDUCATION.  SHE ALSO
TALKED WITH TWO LAWYER FRIENDS OF HER HUSBAND WHO CAME TO SEE HER AS
FRIENDS, ALTHOUGH NOT PROFESSIONALLY.  SHE LIKEWISE DISCUSSED HER
SITUATION ON MANY OCCASIONS WITH THE REPRESENTATIVES OF THE FEDERAL
BUREAU OF INVESTIGATION AND OCCASIONALLY WITH REPRESENTATIVES OF THE
UNITED STATES ATTORNEY.  SHE REPEATEDLY WAS URGED BY HER HUSBAND NOT TO
DO ANYTHING UNTIL SHE HAD CONSULTED WITH AN ATTORNEY.  ON THE BASIS OF
THIS ADVICE, SHE DECIDED NOT TO PLEAD GUILTY ON SEPTEMBER 28, ALTHOUGH
SEVERAL OTHER DEFENDANTS IN THE SAME PROCEEDING HAD DONE SO.  SHE
TESTIFIED AS FOLLOWS ABOUT HER HUSBAND'S ADVICE AND ABOUT HER DECISION
OF SEPTEMBER 28: 

"Q.  HE TOLD YOU TO GET A LAWYER? 

"A.  YES; HE SAID I SHOULD NOT (PLEAD GUILTY) BEFORE I HAVE SEEN AN
ATTORNEY; ON SUCH A QUESTION I SHOULD TALK TO AN ATTORNEY FIRST ABOUT
THE WHOLE THING. 

     .         .         .         .         . 

"A.  MY HUSBAND SAID TO WAIT UNTIL A LAWYER COMES OUT. 

"Q.  AND YOU DECIDED NOT TO PLEAD GUILTY BECAUSE OF THAT? 

"A.  BECAUSE OF THAT, YES." 

SEVERAL DAYS LATER SHE FINALLY DETERMINED TO PLEAD GUILTY.  ON
OCTOBER 7, 1943, SHE EXPRESSLY WAIVED COUNSEL, BOTH IN OPEN COURT AND
IN WRITING.  AS TO THIS SHE LATER WAS ASKED ON THE STAND: 

"Q.  SO, DURING THE WEEK YOU DECIDED TO DISREGARD THE ADVICE THAT
YOUR HUSBAND HAD GIVEN YOU? 

"A.  YES, SIR. 

     .         .   .         .         . 

"Q.  YOU MADE THAT DECISION; YES OR NO? 

"A.  YES." 

IN OTHER WORDS, SHE HAD DISCUSSED HER SITUATION TO HER OWN
SATISFACTION TO THE POINT WHERE SHE HAD REACHED A CONCLUSION BOTH AS TO
HER PLEA OF GUILTY AND AS TO HER WISH TO WAIVE COUNSEL.  THERE IS NO
CONSTITUTIONAL PROVISION THAT REQUIRED OR PERMITTED COUNSEL TO BE
THRUST UPON HER AGAINST HER WISHES.  SHE HAD A RIGHT TO DECIDE THAT SHE
DID NOT WANT TO DISCUSS HER CASE FURTHER WITH ANYONE.  THE ISSUE WAS
NOT THEN AND IS NOT NOW WHETHER SHE MIGHT HAVE BEEN BENEFITED BY HAVING
COUNSEL.  SHE WAS AN "INTELLIGENT, MENTALLY ACUTE WOMAN" AND, FOR
REASONS OF HER OWN, SHE MADE UP HER MIND THAT SHE WISHED TO PLEAD
GUILTY AND TO WAIVE COUNSEL.  IF SHE DID THIS FREELY, INTELLIGENTLY AND
KNOWINGLY, THAT WAS HER RIGHT AND THAT ACTION SHOULD BE FINAL, SUBJECT
ONLY TO A MOTION TO WITHDRAW HER PLEA IN REGULAR COURSE BY DUE PROCESS
OF LAW OR TO APPEAL FROM THE JUDGMENT RENDERED ON HER PLEA.  UNDER THE
RULES OF THE COURT, ANY WITHDRAWAL OF HER PLEA HAD TO BE MADE WITHIN
TEN DAYS AFTER ENTRY OF SUCH PLEA AND BEFORE SENTENCE WAS IMPOSED. 
RULES FOR CRIMINAL APPEALS, RULE II (4), 292 U.S. 662.  THIS WAS NOT
DONE.  JUDGE LEDERLE, TO GUARD AGAINST ANY MISUNDERSTANDING, ON OCTOBER
7, 1943, SPECIALLY INQUIRED IF SHE DESIRED THE ASSISTANCE OF COUNSEL. 
SHE ANSWERED IN THE NEGATIVE.  HE THEN INQUIRED AS TO WHAT HER PLEA
WAS.  SHE ANSWERED GUILTY.  IN ADDITION, SHE SUBMITTED A WRITTEN WAIVER
OF COUNSEL.  THE COURT THEN DEFERRED SENTENCE AND REFERRED THE CASE TO
THE UNITED STATES PROBATION OFFICER FOR INVESTIGATION AND REPORT. 
AMPLE TIME WAS TAKEN FOR THIS. 

IN JUNE, 1944, SHE WAS TAKEN BEFORE JUDGE MOINET BEFORE WHOM SHE
ORIGINALLY HAD BEEN ARRAIGNED.  SHE THEN ADVISED HIM THAT SHE WISHED TO
CHANGE HER PLEA.  THE JUDGE INFORMED HER THAT SHE WAS ENTITLED TO
REPRESENTATION BY COUNSEL AND THAT AN ATTORNEY OUGHT TO MAKE A MOTION
FOR PERMISSION TO WITHDRAW HER PLEA AND THAT, IF SHE HAD A PREFERENCE
AS TO COUNSEL, HE WOULD APPOINT SUCH COUNSEL AS SHE DESIRED HIM TO
APPOINT.  THE MATTER WAS LEFT IN ABEYANCE WHILE SHE TRIED TO SELECT
COUNSEL.  ON JULY 3, 1944, SHE WROTE TO JUDGE MOINET, ADVISING HIM THAT
SHE HAD NO PREFERENCE AND THE COURT SOON THEREAFTER APPOINTED COUNSEL
FOR THE PURPOSE OF MAKING HER MOTION.  THE ASSISTANCE RENDERED BY SUCH
COUNSEL IS NOT CRITICIZED.  HE SECURED FROM JUDGE MOINET NOT MERELY A
RULING UPON THE PROCEDURAL POINT AS TO THE UNTIMELINESS OF HER MOTION,
BUT ALSO SPECIFIC FINDINGS BEARING UPON ITS MERITS.  THIS ORDER MADE BY
JUDGE MOINET, ABOUT A YEAR AFTER HER ARRAIGNMENT BEFORE HIM, IS
SIGNIFICANT BECAUSE OF ITS DIRECT RELATION TO THE ISSUE NOW BEFORE THE
COURT.  HIS ORDER READ AS FOLLOWS: 

"THIS CAUSE HAVING COME ON FOR HEARING UPON THE MOTION OF THE
DEFENDANT GRAFIN MARIANNA VON MOLTKE FOR LEAVE TO WITHDRAW HER PLEA OF
GUILTY, HERETOFORE ENTERED, AND FOR LEAVE TO ENTER A PLEA OF NOT GUILTY
TO THE INDICTMENT FILED HEREIN, THE MATTER AFTER HEARING, HAVING BEEN
SUBMITTED, THE COURT, AFTER CONSIDERATION OF SAID MOTION AND OF THE
ARGUMENTS PRESENTED ON BEHALF OF THE RESPECTIVE PARTIES HERETO,
SPECIFICALLY FINDS: 

"1.  THAT THE DEFENDANT GRAFIN MARIANNA VON MOLTKE WAS PROPERLY
ADVISED OF HER CONSTITUTIONAL RIGHTS BY THE COURT, BOTH PRIOR TO AND AT
THE TIME SHE ENTERED HER PLEA OF GUILTY TO THE INDICTMENT; 

"2.  THAT THE PLEA OF GUILTY, ENTERED SEVERAL WEEKS AFTER THE FILING
OF THE INDICTMENT AND HER ARRAIGNMENT THEREON, WAS SUBMITTED AFTER DUE
AND CAREFUL DELIBERATION; 

"3. THAT THE DEFENDANT WAS ADVISED OF AND THOROUGHLY UNDERSTOOD THE
NATURE OF THE CHARGE CONTAINED IN THE INDICTMENT FILED IN THIS CAUSE; 

"4.  THAT NO PROMISES OR INDUCEMENTS OR THREATS WERE MADE FOR THE
PURPOSE OF OBTAINING THE PLEA OF GUILTY, AND THAT THE ENTRY OF THE PLEA
OF GUILTY WAS NOT DUE TO ANY MISREPRESENTATIONS; 

"5.  THAT THE MOTION PRAYING FOR LEAVE TO WITHDRAW THE PLEA OF GUILTY
WAS NOT FILED WITHIN THE PERIOD FIXED BY RULE II (4) ADOPTED BY THE
SUPREME COURT OF THE UNITED STATES OF AMERICA; 

"WHEREFORE, IT IS ORDERED THAT THE SAID MOTION TO WITHDRAW THE PLEA
OF GUILTY ENTERED BY THE DEFENDANT GRAFFIN (GRAFIN) MARIANNA VON MOLTKE
IN THE ABOVE ENTITLED CAUSE, BE AND THE SAME IS HEREBY DENIED." 

THIS WAS IN NOVEMBER, 1944.  JUDGE MOINET ASKED THE DEFENDANT WHETHER
SHE HAD ANYTHING TO SAY WHY JUDGMENT SHOULD NOT BE PRONOUNCED AGAINST
HER, AND, NO SUFFICIENT REASON TO THE CONTRARY BEING SHOWN OR APPEARING
TO THE JUDGE, HE SENTENCED HER TO IMPRISONMENT FOR FOUR YEARS.  SHE
BEGAN SERVING HER SENTENCE.  HOWEVER, AFTER A DETERMINATION HAD BEEN
MADE BY THE GOVERNMENT IN 1945, LOOKING TOWARD HER REMOVAL AND
REPATRIATION TO GERMANY, SHE, IN 1946, FILED A PETITION FOR HABEAS
CORPUS MAKING THE PRESENT COLLATERAL ATTACK ON THE ORIGINAL
PROCEEDINGS.  WE, THEREFORE, ARE ASKED TO REVIEW HERE THE FACTUAL
FINDINGS OF THE DISTRICT COURT MADE IN APRIL, 1946, THROUGH DISTRICT
JUDGE ERNEST A. O'BRIEN IN THIS HABEAS CORPUS PROCEEDING AND, BY WAY OF
COLLATERAL ATTACK, TO REVIEW THE ACTION OF THE SAME DISTRICT COURT,
TAKEN IN THE ORIGINAL PROCEEDING THROUGH JUDGE LEDERLE IN OCTOBER,
1943, AND THROUGH JUDGE MOINET IN NOVEMBER, 1944.  WHILE SUCH
PROCEEDINGS BY HABEAS CORPUS, BASED ON CONSTITUTIONAL GROUNDS, ARE
VITAL TO THE PRESERVATION OF INDIVIDUAL RIGHTS, THE PROTECTION OF OUR
JUDICIAL PROCESS AGAINST THE MAKING, IN THIS WAY, OF UNJUSTIFIED
ATTACKS UPON SUCH PROCESS IS EQUALLY IMPORTANT TO THE PRESERVATION OF
THE RIGHTS OF THE PEOPLE AS A WHOLE.  EACH ATTEMPTED ATTACK CALLS FOR
THE CAREFUL WEIGHING NOT ONLY OF THE CLAIMS MADE, BUT ALSO OF THE PROOF
SUBMITTED TO SUSTAIN EACH CLAIM.    IN NOW ATTACKING COLLATERALLY THE
UNAPPEALED AND DELIBERATE JUDICIAL PROCEEDINGS OF 1944, A HEAVY BURDEN
OF PROOF RESTS UPON THE PETITIONER TO ESTABLISH THE INVALIDITY OF HER
ORIGINAL PLEA AND WAIVER.  THE ESSENTIAL PRESUMPTION OF REGULARITY
WHICH ATTACHES TO JUDICIAL PROCEEDINGS IS NOT LIGHTLY TO BE REBUTTED. 
JOHNSON V. ZERBST, 304 U.S. 458, 468-469; HAWK V. OLSON, 326 U.S. 271,
279.  JUDGE O'BRIEN RECOGNIZED THE STRENGTH OF THIS PRESUMPTION AND THE
HEAVY BURDEN OF PROOF TO BE BORNE BY THE PETITIONER.  HE THEREFORE HELD
EXTENDED HEARINGS AT WHICH THE PETITIONER AND MANY OTHERS APPEARED AS
WITNESSES.  THE EVIDENCE INCLUDED A SUBSTANTIAL SHOWING THAT THE TRIAL
JUDGE IN ACCEPTING THE PETITIONER'S PLEA OF GUILTY IN THE ORIGINAL
PROCEEDING HAD DONE SO ONLY AFTER SATISFYING HIMSELF, BY CAREFUL
QUESTIONING, THAT THE PLEA WAS NOT THE RESULT OF THREATS OR PROMISES
AND THAT, WITH KNOWLEDGE OF HER RIGHT TO COUNSEL, THE PETITIONER HAD
VOLUNTARILY WAIVED THAT RIGHT.  FN1  AT THE CONCLUSION OF THESE
HEARINGS JUDGE O'BRIEN FOUND NOT ONLY THAT THE PETITIONER HAD FAILED TO
SUSTAIN THE BURDEN RESTING UPON HER, BUT THAT THE OVERWHELMING WEIGHT
OF THE EVIDENCE IN THESE PROCEEDINGS WAS AGAINST HER. 

HIS STATEMENT AS THE TRIAL JUDGE IN THE HABEAS CORPUS PROCEEDINGS IS
IMPRESSIVE AND ENTITLED TO GREAT WEIGHT HERE: 

"IN THE PETITION FILED IN THIS CAUSE THE PETITIONER DIRECTLY OR BY
IMPLICATION CHARGES THAT THE DISTRICT ATTORNEY HAVING THE CASE IN
CHARGE AND AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION MISLEAD
(MISLED) HER OR MADE PROMISES TO HER THAT WHICH AT LEAST (IN) SOME
DEGREE, INFLUENCED HER ACTION IN PLEADING GUILTY TO THE CHARGE.  I AM
OF THE OPINION THAT THESE CHARGES HAVE NOW BEEN ABANDONED BY THE
PETITIONER BUT FOR THE PURPOSES OF THE RECORD I WISH TO STATE MOST
VIGOROUSLY THAT THERE WAS ABSOLUTELY NOTHING IN THE TESTIMONY
SUSTAINING SUCH CHARGES OR IMPLICATIONS.  THE CONDUCT OF BOTH THE
OFFICIALS OF THE DISTRICT ATTORNEY'S OFFICE AND THE AGENTS OF THE
FEDERAL BUREAU OF INVESTIGATION WERE METICULOUS IN SAFEGUARDING THE
RIGHTS OF THE PETITIONER AND THAT THE RECORD IS UTTERLY BARE OF ANY
SUPPORT OF PETITIONER'S CONTENTIONS. 

"THE PETITIONER IS A WOMAN OBVIOUSLY OF GOOD EDUCATION AND ABOVE THE
AVERAGE IN INTELLIGENCE.  HER KNOWLEDGE OF ENGLISH WAS FLUENT AND
AMPLE.  SHE HAD DISCUSSED THE CASE WITH VARIOUS PEOPLE BEFORE THE PLEA
OF GUILTY WAS ENTERED.  IN FACT, AT HER OWN REQUEST, SHE HAD A
CONFERENCE WITH THE CHIEF ASSISTANT DISTRICT ATTORNEY WHEREIN SHE
ENDEAVORED TO SECURE FROM HIM SOME PROMISES OF LENIENCY AND CONVENIENCE
AS AN INDUCEMENT TO A PLEA OF GUILTY.  THESE ADVANCEMENTS BY THE
PETITIONER WERE, OF COURSE, REPUDIATED BY THE DISTRICT ATTORNEY AND SHE
WAS INFORMED OF THE OFFICIALS WHO HAD JURISDICTION OVER THE MATTER IN
ADVENT (THE EVENT) OF HER PLEA OF GUILTY. 

"THE CHIEF CONTENTION OF THE PETITIONER WAS THAT HER WAIVER OF HER
RIGHT TO COUNSEL WAS NOT COMPETENTLY AND INTELLIGENTLY MADE.  THE PLEA
WAS TAKEN BEFORE JUDGE ARTHUR LEDERLE OF THIS DISTRICT.  THE EVIDENCE
SHOWED THAT THE JUDGE INQUIRED OF HER IF SHE UNDERSTOOD THE CHARGES
MADE IN THE INDICTMENT.  SHE ANSWERED IN THE AFFIRMATIVE.  THE JUDGE
INQUIRED IF SHE DESIRED THE ASSISTANCE OF COUNSEL.  SHE ANSWERED IN THE
NEGATIVE.  THE JUDGE THEN INQUIRED WHAT WAS HER PLEA.  SHE ANSWERED
GUILTY.  IN ADDITION TO THIS SHE SUBMITTED A SIGNED WAIVER STATING THAT
SHE DID NOT DESIRE COUNSEL. 

     .         .         .         .         . 

"THE ONLY SUBSTANTIAL QUESTION IN THIS CASE IS WHETHER THE PETITIONER
INTELLIGENTLY AND KNOWINGLY WAIVED HER CONSTITUTIONAL RIGHTS.  IT WAS
HER OBLIGATION TO SUSTAIN THE ALLEGATIONS OF HER PETITION BY A
PREPONDERANCE OF EVIDENCE.  NOT ONLY HAS SHE FAILED IN THIS, BUT I
BELIEVE THAT THE EVIDENCE IS OVERWHELMING AGAINST HER CONTENTIONS.  THE
PETITIONER IS AN INTELLIGENT, MENTALLY ACUTE WOMAN.  SHE UNDERSTOOD THE
CHARGE AND THE PROCEEDINGS.  SHE FREELY, INTELLIGENTLY AND KNOWINGLY
WAIVED HER CONSTITUTIONAL RIGHTS.  I CONCLUDE, THEREFORE, THAT THERE IS
NO MERIT IN HER PETITION AND THAT IT SHALL BE DISMISSED TOGETHER WITH
THE WRIT."  (72 F.SUPP.  994, 995, 997.) 

THE CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT DISMISSING THE
PETITION FOR THE WRIT OF HABEAS CORPUS.  THAT JUDGMENT IS NOW BROUGHT
HERE AND WE ARE CALLED UPON TO MAKE A FURTHER REVIEW OF THE FACTUAL
CONCLUSIONS OF THE DISTRICT COURT IN THE HABEAS CORPUS PROCEEDINGS. 

DUE PROCESS OF LAW CALLS FOR AN EQUAL REGARD BY US FOR THE INTERESTS
OF THE GOVERNMENT AND OF THE PETITIONER IN SEEKING THE NEAREST POSSIBLE
APPROXIMATION TO THE TRUTH.  NECESSARILY WE HAVE ONLY THE PRINTED
RECORD HERE.  ON THE OTHER HAND, THE TRIAL JUDGE, FACED BY THE SAME
ISSUES, HEARD SPOKEN THE WORDS WE NOW READ.  HE SAW THE ORIGINAL
INSTRUMENTS THAT WE NOW SEE REPRODUCED.  HE OBSERVED THE CONDUCT AND
EXPRESSIONS OF THE PETITIONER AND OF THE OTHER WITNESSES WHEREAS WE
CANNOT MAKE AN INFORMED INDEPENDENT CONJECTURE AS TO SUCH CONDUCT OR
EXPRESSIONS.  FROM THE LIVING RECORD HE FOUND THE FACTUAL ISSUES
OVERWHELMINGLY AGAINST THE PETITIONER. 

THERE IS NOTHING IN THE PRINTED RECORD SUFFICIENT TO CONVINCE US
THAT, IF WE HAD SEEN THE WITNESSES AND HEARD THE TESTIMONY, WE WOULD
NOT HAVE REACHED THE SAME CONCLUSION.  MUCH LESS IS THERE ANYTHING IN
IT THAT CONVINCES US THAT, NOT HAVING SEEN OR HEARD IT MADE, WE ARE
JUSTIFIED IN REVERSING HIS FINDINGS WHICH WERE BASED UPON MORE THAN CAN
BE BEFORE US.  UNDER THE CIRCUMSTANCES, WE BELIEVE THAT THE TRUTH IS
MORE NEARLY APPROXIMATED AND JUSTICE IS MORE SURELY SERVED BY READING
THE PRINTED RECORD IN THE STRONG LIGHT OF THE TRIAL JUDGE'S FACTUAL
CONCLUSIONS THAN BY ATTEMPTING TO INTERPRET THAT RECORD WITHOUT GIVING
LARGE EFFECT TO HIS CONCLUSIONS AS TO ITS CREDIBILITY AND TO THE
INFERENCES HE HAS DRAWN FROM IT.  THE AID TO THE ASCERTAINMENT OF THE
TRUTH TO BE DERIVED FROM THE TRIAL COURT'S IMPARTIAL OBSERVATION OF THE
WITNESSES SHOULD NOT BE DISSIPATED IN THE PROCESS OF REVIEW.  HIS
APPRAISAL OF THE LIVING RECORD IS ENTITLED TO PROPORTIONATELY MORE
RATHER THAN LESS, RELIANCE THE FURTHER THE REVIEWING COURT IS REMOVED
FROM THE SCENE OF THE TRIAL.  SEE DISTRICT OF COLUMBIA V. PACE, 320
U.S. 698, 701; UNITED STATES V. JOHNSON, 319 U.S. 503, 518; WILLIAMS
MFG. CO. V. UNITED SHOE MACHINERY CORP., 316 U.S. 364, 367; DELANEY V.
UNITED STATES, 263 U.S. 586, 589-590. 

HER STATUS AS AN ENEMY ALIEN DOES NOT, IN ITSELF, AFFECT HER RIGHT TO
COUNSEL OR THE INFORMED CHARACTER OF HER PLEA OF GUILTY AND HER WAIVER
OF COUNSEL.  THE FACT THAT THE CHARGE AGAINST HER WAS UNDER THE
ESPIONAGE ACT AND THEREFORE CARRIED A TECHNICAL POSSIBILITY OF THE
DEATH PENALTY DID NOT AT ANY TIME INTRODUCE A PRACTICAL CONSIDERATION
THAT SHE WAS IN ACTUAL DANGER OF SUFFERING CAPITAL PUNISHMENT.  SHE
ACCURATELY FORECAST THE GENERAL CHARACTER OF HER SENTENCE AND WAS
CONCERNED PRIMARILY WITH THE WISH THAT HER SENTENCE BE SERVED NEAR HER
FAMILY.  AN ASSISTANT DISTRICT ATTORNEY STATED THAT HE WOULD WRITE A
LETTER RECOMMENDING THAT SHE BE IMPRISONED CLOSE TO HER FAMILY. 

WHILE A CONSPIRACY IS EXCEPTIONALLY DIFFICULT TO DEFINE IN ALL ITS
LEGAL AND FACTUAL COMPLEXITIES, THERE IS NOTHING IN THE CONSTITUTION
THAT PREVENTS AN ACCUSED FROM FREELY, INTELLIGENTLY AND KNOWINGLY
CHOOSING TO PLEAD GUILTY TO THAT, AS WELL AS TO OTHER COMPLEX CHARGES,
FOR REASONS BEST KNOWN TO THE ACCUSED, AS AN ALTERNATIVE TO STANDING
TRIAL ON THAT CHARGE.  THIS WAS HER RIGHT.  HAVING THUS POSITIVELY
DECIDED NOT TO STAND TRIAL SHE DID NOT REQUIRE COUNSEL IN ORDER FREELY,
INTELLIGENTLY AND KNOWINGLY TO WAIVE COUNSEL. 

OUR CONSTITUTION, BILL OF RIGHTS AND FUNDAMENTAL PRINCIPLES OF
GOVERNMENT CALL FOR CAREFUL AND SYMPATHETIC OBSERVANCE OF THE DUE
PROCESS OF LAW THAT IS GUARANTEED TO ALL ACCUSED PERSONS, INCLUDING
ENEMY ALIENS LIKE THE PETITIONER.  THE CONSTITUTION, HOWEVER, WAS
ADOPTED ALSO IN ORDER TO ESTABLISH JUSTICE, INSURE DOMESTIC
TRANQUILITY, PROMOTE THE GENERAL WELFARE AND SECURE THE BLESSINGS OF
LIBERTY TO THE PEOPLE OF THE UNITED STATES AS A WHOLE.  TO THAT END, IT
IS EQUALLY IMPORTANT TO REVIEW WITH SYMPATHETIC UNDERSTANDING THE
JUDICIAL PROCESS AS CONSTITUTIONALLY ADMINISTERED BY OUR COURTS.  WHILE
THE MAJORITY OF THIS COURT ARE NOT READY TO AFFIRM THE JUDGMENT BELOW
ON THE RECORD AS IT STANDS, THEIR DECISION TO REMAND THE CASE FOR
FURTHER FINDINGS DOES NOT MEAN THAT ESTABLISHED AND SALUTARY GENERAL
PRESUMPTIONS IN FAVOR OF THE VALIDITY OF JUDICIAL PROCEEDINGS AND IN
FAVOR OF A TRIAL COURT'S CONCLUSIONS AS TO THE CREDIBILITY OF WITNESSES
ARE TO BE RELAXED. 

FN1  SEE ADAMS V. UNITED STATES EX REL. MCCANN, 317 U.S. 269, 276
277. 
..END :





LEE V. MISSISSIPPI, 332 U.S. 742 


NO. 91.  ARGUED NOVEMBER 21, 1947.  - DECIDED JANUARY 19, 1948.  - 201
MISS.  423, 30 SO.2D 74, REVERSED. 


1.  A DEFENDANT IN A CRIMINAL PROSECUTION IN A STATE COURT, WHO
TESTIFIED THAT HE HAD NOT IN FACT CONFESSED, IS NOT THEREBY PRECLUDED
FROM RAISING THE ISSUE THAT AN ALLEGED CONFESSION OFFERED AS EVIDENCE
WAS COERCED AND THAT A CONVICTION OBTAINED BY THE USE THEREOF DENIED
HIM DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE
FEDERAL CONSTITUTION.  PP. 742-746. 

2.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT INVALIDATES A
STATE COURT CONVICTION GROUNDED IN WHOLE OR IN PART UPON A CONFESSION
WHICH IS THE PRODUCT OF OTHER THAN REASONED AND VOLUNTARY CHOICE.  P.
745. 

3.  FORECLOSING THE RIGHT TO COMPLAIN OF THE USE OF AN ALLEGEDLY
COERCED CONFESSION BECAUSE OF INCONSISTENT TESTIMONY AS TO THE
CONFESSION WOULD ITSELF BE A DENIAL OF DUE PROCESS OF LAW.  PP. 745
746. 

LEE V. MISSISSIPPI. 

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI. 

PETITIONER'S CONVICTION IN A CRIMINAL PROSECUTION IN A STATE COURT,
CLAIMED TO HAVE DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT, WAS
AFFIRMED BY THE STATE SUPREME COURT.  201 MISS.  423, 30 SO.2D 74. 
THIS COURT GRANTED CERTIORARI.  331 U.S. 795.  REVERSED, P. 746. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES A QUESTION OF PROCEDURE UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. 
DOES A DEFENDANT IN A STATE CRIMINAL PROCEEDING LOSE THE RIGHT TO
CONTEND THAT A CONFESSION WAS COERCED BECAUSE OF HIS TESTIMONY THAT THE
CONFESSION WAS IN FACT NEVER MADE? 

PETITIONER, A 17-YEAR-OLD NEGRO, WAS INDICTED BY A GRAND JURY IN
MISSISSIPPI ON A CHARGE OF ASSAULT WITH INTENT TO RAVISH A FEMALE OF
PREVIOUS CHASTE CHARACTER.  DURING THE COURSE OF THE TRIAL, THE STATE
OFFERED THE TESTIMONY OF TWO CITY DETECTIVES AS TO AN ALLEGED ORAL
CONFESSION OBTAINED BY THEM FROM PETITIONER.  OBJECTION WAS MADE THAT
THIS CONFESSION HAD BEEN SECURED AS THE RESULT OF DURESS, THREATS AND
VIOLENCE INFLICTED UPON PETITIONER BY TWO UNIDENTIFIED POLICE OFFICERS
SEVERAL HOURS PRIOR TO THE CONFESSION.  THE JURY RETIRED AND A
PRELIMINARY HEARING WAS HELD BEFORE THE TRIAL JUDGE AS TO THE
VOLUNTARINESS OF THIS CONFESSION.  AFTER VARIOUS WITNESSES APPEARED,
INCLUDING THE PETITIONER HIMSELF, THE JUDGE CONCLUDED THAT THE
CONFESSION WAS VOLUNTARY AND THAT THE TESTIMONY IN RELATION THERETO WAS
ADMISSIBLE.  THIS TESTIMONY PROVED TO BE THE CRUCIAL ELEMENT LEADING TO
THE JURY'S CONVICTION OF PETITIONER.  HIS SENTENCE WAS FIXED AT 18
YEARS IN PRISON. 

THE MISSISSIPPI SUPREME COURT AFFIRMED THE CONVICTION ON APPEAL,
REJECTING PETITIONER'S CONTENTION THAT THE INTRODUCTION OF THE
TESTIMONY IN QUESTION CONTRAVENED HIS RIGHTS UNDER THE FOURTEENTH
AMENDMENT.  IT STATED THAT THE CONDUCT OF THE TWO UNIDENTIFIED OFFICERS
ALLEGED TO HAVE STRUCK AND THREATENED PETITIONER WAS, IF TRUE,
INDEFENSIBLE AND WARRANTED CONDEMNATION.  BUT IT FELT THAT "THE ISSUE
OF FACT AS WELL AS CREDIBILITY WAS FOR THE TRIAL JUDGE UPON SUCH
PRELIMINARY QUALIFICATION, AND WE ARE NOT WILLING TO DISTURB HIS
CONCLUSION."  201 MISS.  423, 432, 29 SO.2D 211, 212. 

THIS CONSTITUTIONAL CONTENTION WAS TREATED QUITE DIFFERENTLY BY THE
COURT ON THE FILING OF A SUGGESTION OF ERROR.  IT FOUND THAT
PETITIONER'S TESTIMONY AT THE PRELIMINARY HEARING THAT HE HAD BEEN
THREATENED PRIOR TO MAKING THE CONFESSION WAS ENTIRELY UNDISPUTED IN
THE RECORD.  BUT IT ALSO FOUND THAT PETITIONER HAD STEADFASTLY
TESTIFIED, BOTH AT THE PRELIMINARY HEARING AND AT THE TRIAL ON THE
MERITS BEFORE THE JURY, THAT HE DID NOT IN FACT ADMIT TO THE CITY
DETECTIVES THAT HE HAD COMMITTED THE CRIME.  THE COURT THEN STATED:
"IF THE ACCUSED HAD NOT DENIED HAVING MADE ANY CONFESSION AT ALL, WE
WOULD FEEL CONSTRAINED TO REVERSE THE CONVICTION HEREIN BECAUSE OF THE
FACT THAT HIS TESTIMONY AS TO THE THREAT MADE TO HIM DURING THE
FORENOON BY THE PLAIN CLOTHES MEN IS WHOLLY UNDISPUTED, THE JAILER NOT
HAVING BEEN ASKED ABOUT THIS THREAT, AND HAVING TESTIFIED ONLY THAT HE
WAS NOT STRUCK BY ANYONE IN HIS PRESENCE AFTER HIS ARREST FOR THIS
CRIME.  BUT, WE THINK THAT ONE ACCUSED OF CRIME CANNOT BE HEARD TO SAY
THAT HE DID NOT MAKE A CONFESSION AT ALL, AND AT THE SAME TIME CONTEND
THAT AN ALLEGED CONFESSION WAS MADE UNDER THE INDUCEMENT OF FEAR."  201
MISS.  423, 435, 30 SO.2D 74, 75.  THE SUGGESTION OF ERROR WAS
ACCORDINGLY OVERRULED. 

THE INCOMPLETE RECORD BEFORE US PRECLUDES OUR DETERMINATION OF
WHETHER PETITIONER DID DENY IN THE TRIAL COURT THAT HE HAD CONFESSED
THE CRIME.  FN1  BUT ASSUMING THAT HE DID SO TESTIFY, WE CANNOT AGREE
WITH THE COURT BELOW THAT HE WAS THEREBY ESTOPPED FROM ASSERTING HIS
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.  THE IMPORTANT FACT IS THAT
THE ORAL CONFESSION WAS INTRODUCED, ADMITTED AND USED AS EVIDENCE OF
PETITIONER'S GUILT.  NOT ONLY MAY THIS CONFESSION HAVE BEEN INFLUENTIAL
IN INDUCING THE JURY'S VERDICT, BUT IT FORMED AN ESSENTIAL PART OF THE
EVIDENTIARY BASIS OF THE CONVICTION NOW UNDER REVIEW.  HIS ALLEGED
DENIAL OF THE CONFESSION WENT ONLY TO THE ORIGINAL ISSUE OF WHETHER HE
ACTUALLY MADE THE CONFESSION, AN ISSUE THAT IS NO LONGER OPEN.  THAT
QUESTION WAS AT MOST A DISPUTED ONE; BUT THE JURY RESOLVED THE MATTER
AGAINST PETITIONER AND, LIKE THE COURT BELOW, WE ACCEPT THAT
DETERMINATION.  THE SOLE CONCERN NOW IS WITH THE VALIDITY OF THE
CONVICTION BASED UPON THE USE OF THE ORAL CONFESSION. 

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT INVALIDATES A
STATE COURT CONVICTION GROUNDED IN WHOLE OR IN PART UPON A CONFESSION
WHICH IS THE PRODUCT OF OTHER THAN REASONED AND VOLUNTARY CHOICE.  FN2
A CONVICTION RESULTING FROM SUCH USE OF A COERCED CONFESSION, HOWEVER,
IS NO LESS VOID BECAUSE THE ACCUSED TESTIFIED AT SOME POINT IN THE
PROCEEDING THAT HE HAD NEVER IN FACT CONFESSED, VOLUNTARILY OR
INVOLUNTARILY.  TESTIMONY OF THAT NATURE CAN HARDLY LEGALIZE A
PROCEDURE WHICH CONFLICTS WITH THE ACCEPTED PRINCIPLES OF DUE PROCESS. 
AND SINCE OUR CONSTITUTIONAL SYSTEM PERMITS A CONVICTION TO BE
SANCTIONED ONLY IF IN CONFORMITY WITH THOSE PRINCIPLES, INCONSISTENT
TESTIMONY AS TO THE CONFESSION SHOULD NOT AND CANNOT PRECLUDE THE
ACCUSED FROM RAISING THE DUE PROCESS ISSUE IN AN APPROPRIATE MANNER. 
WHITE V. TEXAS, 310 U.S. 530, 531-532.  INDEED, SUCH A FORECLOSURE OF
THE RIGHT TO COMPLAIN "OF A WRONG SO FUNDAMENTAL THAT IT MADE THE WHOLE
PROCEEDING A MERE PRETENSE OF A TRIAL AND RENDERED THE CONVICTION AND
SENTENCE WHOLLY VOID," BROWN V. MISSISSIPPI, 297 U.S. 278, 286, WOULD
ITSELF BE A DENIAL OF DUE PROCESS OF LAW. 

THE JUDGMENT BELOW MUST BE REVERSED.  SINCE THE MISSISSIPPI SUPREME
COURT UPHELD THE CONVICTION SOLELY BECAUSE IT THOUGHT PETITIONER WAS
NOT ENTITLED TO RAISE THE CONSTITUTIONAL ISSUE, WE REMAND THE CASE TO
THAT COURT SO THAT IT MAY DEFINITIVELY EXPRESS ITS VIEWS ON THAT
ISSUE.  REVERSED. 

FN1  THE TRANSCRIPT OF THE TRIAL ON THE MERITS IS NOT BEFORE US.  AT
THE PRELIMINARY HEARING ON THE VOLUNTARINESS OF THE CONFESSION, THE
TRANSCRIPT OF WHICH IS BEFORE US, PETITIONER STATED IN REGARD TO THE
ALLEGED CONFESSION:  "I DON'T KNOW WHAT ALL HE ASKED AND ALL I SAID,
BUT I DIDN'T ADMIT I DID IT."  HE ALSO DENIED HAVING CONFESSED VARIOUS
DETAILS OF THE CRIME.  SUCH TESTIMONY, HOWEVER, MIGHT BE CONSTRUED AS
NOTHING MORE THAN A LAYMAN'S INEXACT WAY OF STATING THAT HIS ANSWERS
DID NOT AMOUNT TO A VOLUNTARY CONFESSION.  BUT IN THE ABSENCE OF THE
COMPLETE RECORD, WE EXPRESS NO OPINION ON THE MATTER. 

FN2  BROWN V. MISSISSIPPI, 297 U.S. 278; CHAMBERS V. FLORIDA, 309
U.S. 227; CANTY V. ALABAMA, 309 U.S. 629; WHITE V. TEXAS, 309 U.S. 631,
310 U.S. 530; LOMAX V. TEXAS, 313 U.S. 544; VERNON V. ALABAMA, 313 U.S.
547; LISENBA V. CALIFORNIA, 314 U.S. 219; WARD V. TEXAS, 316 U.S. 547;
ASHCRAFT V. TENNESSEE, 322 U.S. 143, 327 U.S. 274; LYONS V. OKLAHOMA,
322 U.S. 596; MALINSKI V. NEW YORK, 324 U.S. 401; HALEY V. OHIO, 332
U.S. 596. 

SEE, IN GENERAL, BOSKEY AND PICKERING, "FEDERAL RESTRICTIONS ON STATE
CRIMINAL PROCEDURE," 13 U. OF CHI.  L. REV. 266, 282-295. 
..END :
















HALEY V. OHIO, 332 U.S. 596 


NO. 51.  ARGUED NOVEMBER 17, 1947.  - DECIDED JANUARY 12, 1948.  - 147
OHIO ST. 340, 70 N.E.2D 905, REVERSED. 


1.  A 15-YEAR-OLD BOY WAS ARRESTED ABOUT MIDNIGHT ON A CHARGE OF
MURDER AND QUESTIONED BY RELAYS OF POLICE FROM SHORTLY AFTER MIDNIGHT
UNTIL ABOUT 5 A.M., WITHOUT BENEFIT OF COUNSEL OR ANY FRIEND TO ADVISE
HIM.  WHEN CONFRONTED WITH ALLEGED CONFESSIONS OF HIS ALLEGED
ACCOMPLICES AROUND 5 A.M., HE SIGNED A CONFESSION TYPED BY THE POLICE. 
THIS CONFESSION WAS ADMITTED IN EVIDENCE OVER HIS PROTEST AND HE WAS
CONVICTED.  HELD:  THE METHODS USED IN OBTAINING THIS CONFESSION
VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND THE
CONVICTION CANNOT BE SUSTAINED.  PP. 597-601. 

2.  THE RULING OF THE TRIAL COURT ADMITTING THE CONFESSION IN
EVIDENCE AND THE FINDING OF THE JURY THAT THE CONFESSION WAS VOLUNTARY
DID NOT FORECLOSE THE INDEPENDENT EXAMINATION WHICH IT IS THE DUTY OF
THIS COURT TO MAKE IN SUCH A CASE.  P. 599. 

3.  THE FACT THAT THIS 15-YEAR-OLD BOY WAS FORMALLY ADVISED OF HIS
CONSTITUTIONAL RIGHTS JUST BEFORE HE SIGNED THE CONFESSION DOES NOT
ALTER THE RESULT.  FORMULAS OF RESPECT FOR CONSTITUTIONAL SAFEGUARDS
MAY NOT BECOME A CLOAK FOR INQUISITORIAL PRACTICES AND MAKE AN EMPTY
FORM OF DUE PROCESS OF LAW.  P. 601. 

HALEY V. OHIO. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

PETITIONER'S CONVICTION FOR MURDER WAS SUSTAINED BY THE COURT OF
APPEALS OF OHIO.  79 OHIO APP. 237, 34 O.O. 568, 72 N.E.2D 785.  THE
SUPREME COURT OF OHIO DISMISSED AN APPEAL.  147 OHIO ST. 340, 70 N.E.2D
905.  THIS COURT GRANTED CERTIORARI.  331 U.S. 803.  REVERSED, P. 601. 

MR. JUSTICE DOUGLAS ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE BLACK, MR. JUSTICE MURPHY, AND MR. JUSTICE
RUTLEDGE JOIN. 

PETITIONER WAS CONVICTED IN AN OHIO COURT OF MURDER IN THE FIRST
DEGREE AND SENTENCED TO LIFE IMPRISONMENT.  THE COURT OF APPEALS OF
OHIO SUSTAINED THE JUDGMENT OF CONVICTION OVER THE OBJECTION THAT THE
ADMISSION OF PETITIONER'S CONFESSION AT THE TRIAL VIOLATED THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION.  79 OHIO APP. 237.  THE OHIO
SUPREME COURT, BEING OF THE VIEW THAT NO DEBATABLE CONSTITUTIONAL
QUESTION WAS PRESENTED, DISMISSED THE APPEAL.  147 OHIO ST. 340.  THE
CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED
BECAUSE WE HAD DOUBTS WHETHER THE RULING OF THE COURT BELOW COULD BE
SQUARED WITH CHAMBERS V. FLORIDA, 309 U.S. 227, MALINSKI V. NEW YORK,
324 U.S. 401, AND LIKE CASES IN THIS COURT. 

A CONFECTIONERY STORE WAS ROBBED NEAR MIDNIGHT ON OCTOBER 14, 1945,
AND WILLIAM KARAM, ITS OWNER, WAS SHOT.  IT WAS THE PROSECUTOR'S
THEORY, SUPPORTED BY SOME EVIDENCE WHICH IT IS UNNECESSARY FOR US TO
RELATE, THAT PETITIONER, A NEGRO BOY AGED 15, AND TWO OTHERS, WILLIE
LOWDER, AGED 16, AND AL PARKS, AGED 17, COMMITTED THE CRIME, PETITIONER
ACTING AS A LOOKOUT.  FIVE DAYS LATER - AROUND MIDNIGHT OCTOBER 19,
1945 - PETITIONER WAS ARRESTED AT HIS HOME AND TAKEN TO POLICE
HEADQUARTERS. 

THERE IS SOME CONTRARIETY IN THE TESTIMONY AS TO WHAT THEN
TRANSPIRED.  THERE IS EVIDENCE THAT HE WAS BEATEN.  HE TOOK THE STAND
AND SO TESTIFIED.  HIS MOTHER TESTIFIED THAT THE CLOTHES HE WORE WHEN
ARRESTED, WHICH WERE EXCHANGED TWO DAYS LATER FOR CLEAN ONES SHE
BROUGHT TO THE JAIL, WERE TORN AND BLOOD-STAINED.  SHE ALSO TESTIFIED
THAT WHEN SHE FIRST SAW HIM FIVE DAYS AFTER HIS ARREST HE WAS BRUISED
AND SKINNED.  THE POLICE TESTIFIED TO THE CONTRARY ON THIS ENTIRE LINE
OF TESTIMONY.  SO WE PUT TO ONE SIDE THE CONTROVERTED EVIDENCE.  TAKING
ONLY THE UNDISPUTED TESTIMONY (MALINSKI V. NEW YORK, SUPRA, P. 404 AND
CASES CITED), WE HAVE THE FOLLOWING SEQUENCE OF EVENTS.  BEGINNING
SHORTLY AFTER MIDNIGHT THIS 15-YEAR-OLD LAD WAS QUESTIONED BY THE
POLICE FOR ABOUT FIVE HOURS.  FIVE OR SIX OF THE POLICE QUESTIONED HIM
IN RELAYS OF ONE OR TWO EACH.  DURING THIS TIME NO FRIEND OR COUNSEL OF
THE BOY WAS PRESENT.  AROUND 5 A.M. - AFTER BEING SHOWN ALLEGED
CONFESSIONS OF LOWDER AND PARKS - THE BOY CONFESSED.  A CONFESSION WAS
TYPED IN QUESTION AND ANSWER FORM BY THE POLICE.  AT NO TIME WAS THIS
BOY ADVISED OF HIS RIGHT TO COUNSEL; BUT THE WRITTEN CONFESSION STARTED
OFF WITH THE FOLLOWING STATEMENT: 

"WE WANT TO INFORM YOU OF YOUR CONSTITUTIONAL RIGHTS, THE LAW GIVES
YOU THE RIGHT TO MAKE THIS STATEMENT OR NOT AS YOU SEE FIT.  IT IS MADE
WITH THE UNDERSTANDING THAT IT MAY BE USED AT A TRIAL IN COURT EITHER
FOR OR AGAINST YOU OR ANYONE ELSE INVOLVED IN THIS CRIME WITH YOU, OF
YOUR OWN FREE WILL AND ACCORD, YOU ARE UNDER NO FORCE OR DURESS OR
COMPULSION AND NO PROMISES ARE BEING MADE TO YOU AT THIS TIME
WHATSOEVER. 

"DO YOU STILL DESIRE TO MAKE THIS STATEMENT AND TELL THE TRUTH AFTER
HAVING HAD THE ABOVE CLAUSE READ TO YOU? 

"A. YES." 

HE WAS PUT IN JAIL ABOUT 6 OR 6:30 A.M. ON SATURDAY, THE 20TH,
SHORTLY AFTER THE CONFESSION WAS SIGNED.  BETWEEN THEN AND TUESDAY, THE
23D, HE WAS HELD INCOMMUNICADO.  A LAWYER RETAINED BY HIS MOTHER TRIED
TO SEE HIM TWICE BUT WAS REFUSED ADMISSION BY THE POLICE.  HIS MOTHER
WAS NOT ALLOWED TO SEE HIM UNTIL THURSDAY, THE 25TH.  BUT A NEWSPAPER
PHOTOGRAPHER WAS ALLOWED TO SEE HIM AND TAKE HIS PICTURE IN THE EARLY
MORNING HOURS OF THE 20TH, RIGHT AFTER HE HAD CONFESSED.  HE WAS NOT
TAKEN BEFORE A MAGISTRATE AND FORMALLY CHARGED WITH A CRIME UNTIL THE
23D - THREE DAYS AFTER THE CONFESSION WAS SIGNED. 

THE TRIAL COURT, AFTER A PRELIMINARY HEARING ON THE VOLUNTARY
CHARACTER OF THE CONFESSION, ALLOWED IT TO BE ADMITTED IN EVIDENCE OVER
PETITIONER'S OBJECTION THAT IT VIOLATED HIS RIGHTS UNDER THE FOURTEENTH
AMENDMENT.  THE COURT INSTRUCTED THE JURY TO DISREGARD THE CONFESSION
IF IT FOUND THAT HE DID NOT MAKE THE CONFESSION VOLUNTARILY AND OF HIS
FREE WILL. 

BUT THE RULING OF THE TRIAL COURT AND THE FINDING OF THE JURY ON THE
VOLUNTARY CHARACTER OF THE CONFESSION DO NOT FORECLOSE THE INDEPENDENT
EXAMINATION WHICH IT IS OUR DUTY TO MAKE HERE.  ASHCRAFT V. TENNESSEE,
322 U.S. 143, 147-148.  IF THE UNDISPUTED EVIDENCE SUGGESTS THAT FORCE
OR COERCION WAS USED TO EXACT THE CONFESSION, WE WILL NOT PERMIT THE
JUDGMENT OF CONVICTION TO STAND, EVEN THOUGH WITHOUT THE CONFESSION
THERE MIGHT HAVE BEEN SUFFICIENT EVIDENCE FOR SUBMISSION TO THE JURY. 
MALINSKI V. NEW YORK, SUPRA, P. 404, AND CASES CITED. 

WE DO NOT THINK THE METHODS USED IN OBTAINING THIS CONFESSION CAN BE
SQUARED WITH THAT DUE PROCESS OF LAW WHICH THE FOURTEENTH AMENDMENT
COMMANDS. 

WHAT TRANSPIRED WOULD MAKE US PAUSE FOR CAREFUL INQUIRY IF A MATURE
MAN WERE INVOLVED.  AND WHEN, AS HERE, A MERE CHILD - AN EASY VICTIM OF
THE LAW - IS BEFORE US, SPECIAL CARE IN SCRUTINIZING THE RECORD MUST BE
USED.  AGE 15 IS A TENDER AND DIFFICULT AGE FOR A BOY OF ANY RACE.  HE
CANNOT BE JUDGED BY THE MORE EXACTING STANDARDS OF MATURITY.  THAT
WHICH WOULD LEAVE A MAN COLD AND UNIMPRESSED CAN OVERAWE AND OVERWHELM
A LAD IN HIS EARLY TEENS.  THIS IS THE PERIOD OF GREAT INSTABILITY
WHICH THE CRISIS OF ADOLESCENCE PRODUCES.  A 15-YEAR-OLD LAD,
QUESTIONED THROUGH THE DEAD OF NIGHT BY RELAYS OF POLICE, IS A READY
VICTIM OF THE INQUISITION.  MATURE MEN POSSIBLY MIGHT STAND THE ORDEAL
FROM MIDNIGHT TO 5 A.M. BUT WE CANNOT BELIEVE THAT A LAD OF TENDER
YEARS IS A MATCH FOR THE POLICE IN SUCH A CONTEST.  HE NEEDS COUNSEL
AND SUPPORT IF HE IS NOT TO BECOME THE VICTIM FIRST OF FEAR, THEN OF
PANIC.  HE NEEDS SOMEONE ON WHOM TO LEAN LEST THE OVERPOWERING PRESENCE
OF THE LAW, AS HE KNOWS IT, CRUSH HIM.  NO FRIEND STOOD AT THE SIDE OF
THIS 15-YEAR-OLD BOY AS THE POLICE, WORKING IN RELAYS, QUESTIONED HIM
HOUR AFTER HOUR, FROM MIDNIGHT UNTIL DAWN.  NO LAWYER STOOD GUARD TO
MAKE SURE THAT THE POLICE WENT SO FAR AND NO FARTHER, TO SEE TO IT THAT
THEY STOPPED SHORT OF THE POINT WHERE HE BECAME THE VICTIM OF
COERCION.  NO COUNSEL OR FRIEND WAS CALLED DURING THE CRITICAL HOURS OF
QUESTIONING.  A PHOTOGRAPHER WAS ADMITTED ONCE THIS LAD BROKE AND
CONFESSED.  BUT NOT EVEN A GESTURE TOWARDS GETTING A LAWYER FOR HIM WAS
EVER MADE. 

THIS DISREGARD OF THE STANDARDS OF DECENCY IS UNDERLINED BY THE FACT
THAT HE WAS KEPT INCOMMUNICADO FOR OVER THREE DAYS DURING WHICH THE
LAWYER RETAINED TO REPRESENT HIM TWICE TRIED TO SEE HIM AND TWICE WAS
REFUSED ADMISSION.  A PHOTOGRAPHER WAS ADMITTED AT ONCE; BUT HIS
CLOSEST FRIEND - HIS MOTHER - WAS NOT ALLOWED TO SEE HIM FOR OVER FIVE
DAYS AFTER HIS ARREST.  IT IS SAID THAT THESE EVENTS ARE NOT GERMANE TO
THE PRESENT PROBLEM BECAUSE THEY HAPPENED AFTER THE CONFESSION WAS
MADE.  BUT THEY SHOW SUCH A CALLOUS ATTITUDE OF THE POLICE TOWARDS THE
SAFEGUARDS WHICH RESPECT FOR ORDINARY STANDARDS OF HUMAN RELATIONSHIPS
COMPELS THAT WE TAKE WITH A GRAIN OF SALT THEIR PRESENT APOLOGIA THAT
THE FIVE-HOUR GRILLING OF THIS BOY WAS CONDUCTED IN A FAIR AND
DISPASSIONATE MANNER.  WHEN THE POLICE ARE SO UNMINDFUL OF THESE BASIC
STANDARDS OF CONDUCT IN THEIR PUBLIC DEALINGS, THEIR SECRET TREATMENT
OF A 15-YEAR-OLD BOY BEHIND CLOSED DOORS IN THE DEAD OF NIGHT BECOMES
DARKLY SUSPICIOUS. 

THE AGE OF PETITIONER, THE HOURS WHEN HE WAS GRILLED, THE DURATION OF
HIS QUIZZING, THE FACT THAT HE HAD NO FRIEND OR COUNSEL TO ADVISE HIM,
THE CALLOUS ATTITUDE OF THE POLICE TOWARDS HIS RIGHTS COMBINE TO
CONVINCE US THAT THIS WAS A CONFESSION WRUNG FROM A CHILD BY MEANS
WHICH THE LAW SHOULD NOT SANCTION.  NEITHER MAN NOR CHILD CAN BE
ALLOWED TO STAND CONDEMNED BY METHODS WHICH FLOUT CONSTITUTIONAL
REQUIREMENTS OF DUE PROCESS OF LAW. 

BUT WE ARE TOLD THAT THIS BOY WAS ADVISED OF HIS CONSTITUTIONAL
RIGHTS BEFORE HE SIGNED THE CONFESSION AND THAT, KNOWING THEM, HE
NEVERTHELESS CONFESSED.  THAT ASSUMES, HOWEVER, THAT A BOY OF FIFTEEN,
WITHOUT AID OF COUNSEL, WOULD HAVE A FULL APPRECIATION OF THAT ADVICE
AND THAT ON THE FACTS OF THIS RECORD HE HAD A FREEDOM OF CHOICE.  WE
CANNOT INDULGE THOSE ASSUMPTIONS.  MOREOVER, WE CANNOT GIVE ANY WEIGHT
TO RECITALS WHICH MERELY FORMALIZE CONSTITUTIONAL REQUIREMENTS. 
FORMULAS OF RESPECT FOR CONSTITUTIONAL SAFEGUARDS CANNOT PREVAIL OVER
THE FACTS OF LIFE WHICH CONTRADICT THEM.  THEY MAY NOT BECOME A CLOAK
FOR INQUISITORIAL PRACTICES AND MAKE AN EMPTY FORM OF THE DUE PROCESS
OF LAW FOR WHICH FREE MEN FOUGHT AND DIED TO OBTAIN. 

THE COURSE WE FOLLOWED IN CHAMBERS V. FLORIDA, SUPRA, WHITE V. TEXAS,
310 U.S. 530, ASHCRAFT V. TENNESSEE, SUPRA, AND MALINSKI V. NEW YORK,
SUPRA, MUST BE FOLLOWED HERE.  THE FOURTEENTH AMENDMENT PROHIBITS THE
POLICE FROM USING THE PRIVATE, SECRET CUSTODY OF EITHER MAN OR CHILD AS
A DEVICE FOR WRINGING CONFESSIONS FROM THEM.  REVERSED. 

MR. JUSTICE FRANKFURTER, JOINING IN REVERSAL OF JUDGMENT. 

IN A RECENT SERIES OF CASES, BEGINNING WITH BROWN V. MISSISSIPPI, 297
U.S. 278, THE COURT HAS SET ASIDE CONVICTIONS COMING HERE FROM STATE
COURTS BECAUSE THEY WERE BASED ON CONFESSIONS ADMITTED UNDER
CIRCUMSTANCES THAT OFFENDED THE REQUIREMENTS OF THE "DUE PROCESS"
EXACTED FROM THE STATES BY THE FOURTEENTH AMENDMENT.  IF THE RATIONALE
OF THOSE CASES RULED THIS, WE WOULD DISPOSE OF IT PER CURIAM WITH THE
MERE CITATION OF THE CASES.  THEY DO NOT RULE IT.  SINCE AT BEST THIS
COURT'S REVERSAL OF A STATE COURT'S CONVICTION FOR WANT OF DUE PROCESS
ALWAYS INVOLVES A DELICATE EXERCISE OF POWER AND SINCE THERE IS A SHARP
DIVISION AS TO THE PROPRIETY OF ITS EXERCISE IN THIS CASE, I DEEM IT
APPROPRIATE TO STATE AS EXPLICITLY AS POSSIBLE WHY, ALTHOUGH I HAVE
DOUBTS AND DIFFICULTIES, I CANNOT SUPPORT AFFIRMANCE OF THE
CONVICTION. 

THE DOUBTS AND DIFFICULTIES DERIVE FROM THE VERY NATURE OF THE
PROBLEM BEFORE US.  THEY ARISE FREQUENTLY WHEN THIS COURT IS OBLIGED TO
GIVE DEFINITENESS TO "THE VAGUE CONTOURS" OF DUE PROCESS OR, TO CHANGE
THE FIGURE, TO SPIN JUDGMENT UPON STATE ACTION OUT OF THAT GOSSAMER
CONCEPT.  SUBTLE AND EVEN ELUSIVE AS ITS CRITERIA ARE, WE CANNOT ESCAPE
THAT DUTY OF JUDICIAL REVIEW.  THE NATURE OF THE DUTY, HOWEVER, MAKES
IT ESPECIALLY IMPORTANT TO BE HUMBLE IN EXERCISING IT.  HUMILITY IN
THIS CONTEXT MEANS AN ALERT SELF-SCRUTINY SO AS TO AVOID INFUSING INTO
THE VAGUENESS OF A CONSTITUTIONAL COMMAND ONE'S MERELY PRIVATE
NOTIONS.  LIKE OTHER MORTALS, JUDGES, THOUGH UNAWARE, MAY BE IN THE
GRIP OF PREPOSSESSIONS.  THE ONLY WAY TO RELAX SUCH A GRIP, THE ONLY
WAY TO AVOID FINDING IN THE CONSTITUTION THE PERSONAL BIAS ONE HAS
PLACED IN IT, IS TO EXPLORE THE INFLUENCES THAT HAVE SHAPED ONE'S
UNANALYZED VIEWS IN ORDER TO LAY BARE PREPOSSESSIONS. 

A LIFETIME'S PREOCCUPATION WITH CRIMINAL JUSTICE, AS PROSECUTOR,
DEFENDER OF CIVIL LIBERTIES, AND SCIENTIFIC STUDENT, NATURALLY LEAVES
ONE WITH VIEWS.  THUS, I DISBELIEVE IN CAPITAL PUNISHMENT.  BUT AS A
JUDGE I COULD NOT IMPOSE THE VIEWS OF THE VERY FEW STATES WHO THROUGH
BITTER EXPERIENCE HAVE ABOLISHED CAPITAL PUNISHMENT UPON ALL THE OTHER
STATES, BY FINDING THAT "DUE PROCESS" PROSCRIBES IT.  AGAIN, I DO NOT
BELIEVE THAT EVEN CAPITAL OFFENSES BY BOYS OF FIFTEEN SHOULD BE DEALT
WITH ACCORDING TO THE CONVENTIONAL CRIMINAL PROCEDURE.  IT WOULD,
HOWEVER, BE BALD JUDICIAL USURPATION TO HOLD THAT STATES VIOLATE THE
CONSTITUTION IN SUBJECTING MINORS LIKE HALEY TO SUCH A PROCEDURE.  IF A
STATE, CONSISTENTLY WITH THE FOURTEENTH AMENDMENT, MAY TRY A BOY OF
FIFTEEN CHARGED WITH MURDER BY THE ORDINARY CRIMINAL PROCEDURE, I
CANNOT SAY THAT SUCH A YOUTH IS NEVER CAPABLE OF THAT FREE CHOICE OF
ACTION WHICH, IN THE EYES OF THE LAW, MAKES A CONFESSION "VOLUNTARY." 
AGAIN, IT WOULD HARDLY BE A JUSTIFIABLE EXERCISE OF JUDICIAL POWER TO
DISPOSE OF THIS CASE BY FINDING IN THE DUE PROCESS CLAUSE
CONSTITUTIONAL OUTLAWRY OF THE ADMISSIBILITY OF ALL PRIVATE STATEMENTS
MADE BY AN ACCUSED TO A POLICE OFFICER, HOWEVER MUCH LEGISLATION TO
THAT EFFECT MIGHT SEEM TO ME WISE.  SEE THE INDIAN EVIDENCE ACT OF
1872, SEC. 25; CF. SEC. 26. 

BUT WHETHER A CONFESSION OF A LAD OF FIFTEEN IS "VOLUNTARY" AND AS
SUCH ADMISSIBLE, OR "COERCED" AND THUS WANTING IN DUE PROCESS, IS NOT A
MATTER OF MATHEMATICAL DETERMINATION.  ESSENTIALLY IT INVITES
PSYCHOLOGICAL JUDGMENT - A PSYCHOLOGICAL JUDGMENT THAT REFLECTS DEEP,
EVEN IF INARTICULATE, FEELINGS OF OUR SOCIETY.  JUDGES MUST DIVINE THAT
FEELING AS BEST THEY CAN FROM ALL THE RELEVANT EVIDENCE AND LIGHT WHICH
THEY CAN BRING TO BEAR FOR A CONFIDENT JUDGMENT OF SUCH AN ISSUE, AND
WITH EVERY ENDEAVOR TO DETACH THEMSELVES FROM THEIR MERELY PRIVATE
VIEWS.  (IT IS NOTEWORTHY THAT WHILE AMERICAN EXPERIENCE HAS BEEN DRAWN
UPON IN THE FRAMING OF CONSTITUTIONS FOR OTHER DEMOCRATIC COUNTRIES,
THE DUE PROCESS CLAUSE HAS NOT BEEN COPIED.  SEE, ALSO, THE
ILLUMINATING DEBATE ON THE PROPOSAL TO AMEND THE IRISH HOME RULE BILL
BY INCORPORATING OUR DUE PROCESS CLAUSE.  42 H.C. DEB.  2082-2091, 2215
2267(5TH SER., OCT. 22, 23, 1912).)    WHILE THE ISSUE THUS FORMULATED
APPEARS VAGUE AND IMPALPABLE, IT CANNOT BE TOO OFTEN REPEATED THAT THE
LIMITATIONS WHICH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
PLACED UPON THE METHODS BY WHICH THE STATES MAY PROSECUTE FOR CRIME
CANNOT BE MORE NARROWLY CONCEIVED.  THIS COURT MUST GIVE THE FREEST
POSSIBLE SCOPE TO STATES IN THE CHOICE OF THEIR METHODS OF CRIMINAL
PROCEDURE.  BUT THESE PROCEDURES CANNOT INCLUDE METHODS THAT MAY FAIRLY
BE DEEMED TO BE IN CONFLICT WITH DEEPLY ROOTED FEELINGS OF THE
COMMUNITY.  SEE CONCURRING OPINIONS IN MALINSKI V. NEW YORK, 324 U.S.
401, 412, AND LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S. 459,
466.  OF COURSE THIS IS A MOST DIFFICULT TEST TO APPLY, BUT APPLY IT WE
MUST, WARILY, AND FROM CASE TO CASE. 

THIS BRINGS ME TO THE PRECISE ISSUE ON THE RECORD BEFORE US.
SUSPECTING A FIFTEEN-YEAR-OLD BOY OF COMPLICITY IN MURDER RESULTING
FROM ATTEMPTED ROBBERY, AT ABOUT MIDNIGHT THE POLICE TOOK HIM FROM HIS
HOME TO POLICE HEADQUARTERS.  THERE HE WAS QUESTIONED FOR ABOUT FIVE
HOURS BY AT LEAST FIVE POLICE OFFICERS WHO INTERROGATED IN RELAYS OF
TWO OR MORE.  ABOUT FIVE O'CLOCK IN THE MORNING THIS PROCEDURE
CULMINATED IN WHAT THE POLICE REGARDED AS A CONFESSION, WHEREUPON IT
WAS FORMALLY REDUCED TO WRITING.  DURING THE COURSE OF THE
INTERROGATION THE BOY WAS NOT ADVISED THAT HE WAS NOT OBLIGED TO TALK,
THAT IT WAS HIS RIGHT IF HE CHOSE TO SAY NOT A WORD, NOR THAT HE WAS
ENTITLED TO HAVE THE BENEFIT OF COUNSEL OR THE HELP OF HIS FAMILY. 
BEARING UPON THE SAFEGUARDS OF THESE RIGHTS, THE CHIEF OF POLICE
ADMITTED THAT WHILE HE KNEW THAT THE BOY "HAD A RIGHT TO REMAIN MUTE
AND NOT ANSWER ANY QUESTIONS" HE DID NOT KNOW THAT IT WAS THE DUTY OF
THE POLICE TO APPRISE HIM OF THAT FACT.  UNQUESTIONABLY, DURING THIS
WHOLE PERIOD HE WAS HELD INCOMMUNICADO.  ONLY AFTER THE NIGHTLONG
QUESTIONING HAD RESULTED IN DISCLOSURES SATISFACTORY TO THE POLICE AND
AS SUCH TO BE DOCUMENTED, WAS THERE READ TO THE BOY A CLAUSE GIVING THE
CONVENTIONAL FORMULA ABOUT HIS CONSTITUTIONAL RIGHT TO MAKE OR WITHHOLD
A STATEMENT AND STATING THAT IF HE MAKES IT, HE MAKES IT OF HIS "OWN
FREE WILL."  DO THESE UNCONTESTED FACTS JUSTIFY A STATE COURT IN
FINDING THAT THE BOY'S CONFESSION WAS "VOLUNTARY," OR DO THE
CIRCUMSTANCES BY THEIR VERY NATURE PRECLUDE A FINDING THAT A DELIBERATE
AND RESPONSIBLE CHOICE WAS EXERCISED BY THE BOY IN THE CONFESSION THAT
CAME AT THE END OF FIVE HOURS QUESTIONING? 

THE ANSWER, AS HAS ALREADY BEEN INTIMATED, DEPENDS ON AN EVALUATION
OF PSYCHOLOGICAL FACTORS, OR, MORE ACCURATELY STATED, UPON THE
PERVASIVE FEELING OF SOCIETY REGARDING SUCH PSYCHOLOGICAL FACTORS. 
UNFORTUNATELY, WE CANNOT DRAW UPON ANY FORMULATED EXPRESSION OF THE
EXISTENCE OF SUCH FEELING.  NOR ARE THERE AVAILABLE EXPERTS ON SUCH
MATTERS TO GUIDE THE JUDICIAL JUDGMENT.  OUR CONSTITUTIONAL SYSTEM
MAKES IT THE COURT'S DUTY TO INTERPRET THOSE FEELINGS OF SOCIETY TO
WHICH THE DUE PROCESS CLAUSE GIVES LEGAL PROTECTION.  BECAUSE OF THEIR
INHERENT VAGUENESS THE TESTS BY WHICH WE ARE TO BE GUIDED ARE MOST
UNSATISFACTORY, BUT SUCH AS THEY ARE WE MUST APPLY THEM. 

THE OHIO COURTS HAVE IN EFFECT DENIED THAT THE VERY NATURE OF THE
CIRCUMSTANCES OF THE BOY'S CONFESSION PRECLUDES A FINDING THAT IT WAS
VOLUNTARY.  THEIR DENIAL CARRIES GREAT WEIGHT, OF COURSE.  IT REQUIRES
MUCH TO BE OVERBORNE.  BUT IT DOES NOT END THE MATTER.  AGAINST IT WE
HAVE THE JUDGMENT THAT COMES FROM JUDICIAL EXPERIENCE WITH THE CONDUCT
OF CRIMINAL TRIALS AS THEY PASS IN REVIEW BEFORE THIS COURT.  AN
IMPRESSIVE SERIES OF CASES IN THIS AND OTHER COURTS ADMONISHES OF THE
TEMPTATIONS TO ABUSE OF POLICE ENDEAVORS TO SECURE CONFESSIONS FROM
SUSPECTS, THROUGH PROTRACTED QUESTIONING, CARRIED ON IN SECRECY, WITH
THE INEVITABLE DISQUIETUDE AND FEARS POLICE INTERROGATIONS NATURALLY
ENGENDER IN INDIVIDUALS QUESTIONED WHILE HELD INCOMMUNICADO, WITHOUT
THE AID OF COUNSEL AND UNPROTECTED BY THE SAFEGUARDS OF A JUDICIAL
INQUIRY.  DISINTERESTED ZEAL FOR THE PUBLIC GOOD DOES NOT ASSURE EITHER
WISDOM OR RIGHT IN THE METHODS IT PURSUES.  A REPORT OF PRESIDENT
HOOVER'S NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT GAVE
PROOF OF THE FACT, UNFORTUNATELY, THAT THESE POTENTIALITIES OF ABUSE
WERE NOT THE IMAGININGS OF MAWKISH SENTIMENTALITY, NOR THEIR TOLERANCE
DESIRABLE OR NECESSARY FOR A STERN POLICY AGAINST CRIME.  LEGISLATION
THROUGHOUT THE COUNTRY REFLECTS A SIMILAR BELIEF THAT DETENTION FOR
PURPOSES OF ELICITING CONFESSIONS THROUGH SECRET, PERSISTENT, LONG
CONTINUED INTERROGATION VIOLATES SENTIMENTS DEEPLY EMBEDDED IN THE
FEELINGS OF OUR PEOPLE.  SEE MCNABB V. UNITED STATES, 318 U.S. 332, 342
43. 

IT IS SUGGESTED THAT HALEY'S GUILT COULD EASILY HAVE BEEN ESTABLISHED
WITHOUT THE CONFESSION ELICITED BY THE SWEATING PROCESS OF THE NIGHT'S
SECRET INTERROGATION.  BUT THIS ONLY AFFORDS ONE MORE PROOF THAT IN
GUARDING AGAINST MISUSE OF THE LAW ENFORCEMENT PROCESS THE EFFECTIVE
DETECTION OF CRIME AND THE PROSECUTION OF CRIMINALS ARE FURTHERED AND
NOT HAMPERED.  SUCH CONSTITUTIONAL RESTRAINTS OF DECENCY DERIVE FROM
RELIANCE UPON THE RESOURCES OF INTELLIGENCE IN DEALING WITH CRIME AND
DISCOURAGE THE TOO EASY TEMPTATIONS OF UNIMAGINATIVE CRUDE FORCE, EVEN
WHEN SUCH FORCE IS NOT BRUTALLY EMPLOYED. 

IT WOULD DISREGARD STANDARDS THAT WE CHERISH AS PART OF OUR FAITH IN
THE STRENGTH AND WELL-BEING OF A RATIONAL, CIVILIZED SOCIETY TO HOLD
THAT A CONFESSION IS "VOLUNTARY" SIMPLY BECAUSE THE CONFESSION IS THE
PRODUCT OF A SENTIENT CHOICE.  "CONDUCT UNDER DURESS INVOLVES A
CHOICE," UNION PACIFIC R. CO. V. PUBLIC SERVICE COMMISSION, 248 U.S.
67, 70, AND CONDUCT DEVOID OF PHYSICAL PRESSURE BUT NOT LEAVING A FREE
EXERCISE OF CHOICE IS THE PRODUCT OF DURESS AS MUCH SO AS CHOICE
REFLECTING PHYSICAL CONSTRAINT. 

UNHAPPILY WE HAVE NEITHER PHYSICAL NOR INTELLECTUAL WEIGHTS AND
MEASURES BY WHICH JUDICIAL JUDGMENT CAN DETERMINE WHEN PRESSURES IN
SECURING A CONFESSION REACH THE COERCIVE INTENSITY THAT CALLS FOR THE
EXCLUSION OF A STATEMENT SO SECURED.  OF COURSE, THE POLICE MEANT TO
EXERCISE PRESSURES UPON HALEY TO MAKE HIM TALK.  THAT WAS THE VERY
PURPOSE OF THEIR PROCEDURE.  IN CONCLUDING THAT A STATEMENT IS NOT
VOLUNTARY WHICH RESULTS FROM PRESSURES SUCH AS WERE EXERTED IN THIS
CASE TO MAKE A LAD OF FIFTEEN TALK WHEN THE CONSTITUTION GAVE HIM THE
RIGHT TO KEEP SILENT AND WHEN THE SITUATION WAS SO CONTRIVED THAT
APPRECIATION OF HIS RIGHTS AND THEREBY THE MEANS OF ASSERTING THEM WERE
EFFECTIVELY WITHHELD FROM HIM BY THE POLICE, I DO NOT BELIEVE I EXPRESS
A MERELY PERSONAL BIAS AGAINST SUCH A PROCEDURE.  SUCH A FINDING, I
BELIEVE, REFLECTS THOSE FUNDAMENTAL NOTIONS OF FAIRNESS AND JUSTICE IN
THE DETERMINATION OF GUILT OR INNOCENCE WHICH LIE EMBEDDED IN THE
FEELINGS OF THE AMERICAN PEOPLE AND ARE ENSHRINED IN THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  TO REMOVE THE INDUCEMENT TO RESORT
TO SUCH METHODS THIS COURT HAS REPEATEDLY DENIED USE OF THE FRUITS OF
ILLICIT METHODS. 

ACCORDINGLY, I THINK HALEY'S CONFESSION SHOULD HAVE BEEN EXCLUDED AND
THE CONVICTION BASED UPON IT SHOULD NOT STAND. 

MR. JUSTICE BURTON, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE REED AND
MR. JUSTICE JACKSON CONCUR, DISSENTING. 

THE ISSUE HERE IS A NARROW ONE OF FACT TURNING LARGELY UPON THE
CREDIBILITY OF WITNESSES WHOSE TESTIMONY ON MATERIAL POINTS IS IN
DIRECT CONFLICT WITH THAT OF OTHER WITNESSES.  THE JUDGMENT RENDERED
TODAY BY THIS COURT DOES NOT HOLD THAT THE PROCEDURE AUTHORIZED BY THE
STATE OF OHIO TO DETERMINE THE ADMISSIBILITY OF THE CONFESSION OF A
PERSON ACCUSED OF A CAPITAL OFFENSE VIOLATES PER SE THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  IT HOLDS MERELY THAT THE
APPLICATION MADE OF THAT PROCEDURE IN THIS CASE AMOUNTED TO A VIOLATION
OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT IN THAT, ON THIS RECORD,
IT AMOUNTED TO A REFUSAL BY THE TRIAL COURT TO EXCLUDE FROM THE JURY
THIS PARTICULAR CONFESSION WHICH THIS COURT IS CONVINCED WAS AN
INVOLUNTARY CONFESSION. 

THE FOLLOWING FACTS ARE NOT DISPUTED: 

ABOUT MIDNIGHT, ON OCTOBER 14, 1945, A STOREKEEPER IN CANTON, OHIO,
WAS SHOT TO DEATH IN HIS STORE BY ONE OF TWO BOYS, ALFRED PARKS, AGED
16, OR WILLIE LOWDER, AGED 17.  THE ACCUSED, JOHN HARVEY HALEY, THEN
ABOUT 15 YEARS AND 8 MONTHS OLD AND A SENIOR IN HIGH SCHOOL, WAS WITH
THESE BOYS BEFORE THEY WENT INTO THE STORE AND WAS WAITING FOR THEM
OUTSIDE OF IT AT THE TIME WHEN THE SHOOTING OCCURRED.  HALEY TESTIFIED
"ALL OF A SUDDEN I HEARD A SHOT AND A MAN HOLLERED, AND I WAS SCARED
AND I RAN."  THE TWO OTHER BOYS ALSO RAN AWAY IMMEDIATELY AFTER THE
SHOT WAS FIRED.  THE THREE SOON MET AND HALEY THEN WENT HOME.  THESE
BOYS HAD BEEN TOGETHER ALL THAT EVENING.  EARLY IN THE EVENING, WHILE
PARKS AND LOWDER WAITED OUTSIDE OF HALEY'S HOME, HALEY WENT IN TO GET A
PISTOL FOR THEIR JOINT USE.  WITHOUT THE KNOWLEDGE OF WILLIAM MACK, THE
OWNER OF THE PISTOL, HALEY TOOK FROM A TRUNK A .32 CALIBER AUTOMATIC
PISTOL WHICH HALEY HAD SHOT ONCE ON NEW YEAR'S DAY AND, FROM ANOTHER
PLACE IN HIS HOME, A HANDFUL OF AMMUNITION FOR THE PISTOL.  THE THREE
BOYS TOOK PART IN LOADING IT.  HALEY THEN TURNED IT OVER TO PARKS AND
LOWDER, ONE OR THE OTHER OF WHOM THEREAFTER RETAINED POSSESSION OF IT
THROUGHOUT THE EVENING.  A DAY OR TWO AFTER THE SHOOTING, HALEY ASKED
THE TWO BOYS WHAT THEY HAD DONE WITH THE GUN.  HE TESTIFIED THAT IN
ANSWER "THEY SAID THEY GOT RID OF IT."  THIS MUCH OF THE STORY HALEY
TESTIFIED TO AT THE TRIAL AND HAS ADMITTED SUBSTANTIALLY EVER SINCE HIS
ARREST AND SINCE ABANDONING HIS FIRST, AND ADMITTEDLY FALSE, STATEMENT
THAT HE AND HIS TWO FRIENDS HAD GONE TO A SHOW THAT EVENING.  A .32
CALIBER AUTOMATIC COLT PISTOL, THE ADMISSION OF WHICH IN EVIDENCE IS
NOT HERE IN ISSUE, WAS SENT BY THE CANTON POLICE TO THE FEDERAL BUREAU
OF INVESTIGATION FOR IDENTIFICATION, TOGETHER WITH THE BULLET WHICH
KILLED THE STOREKEEPER AND A CARTRIDGE SHELL FOUND BY THE POLICE AT THE
SCENE OF THE CRIME.  AN UNCONTRADICTED EXPERT WITNESS FROM THE F.B.I.
FIRED THREE BULLETS FROM THE PISTOL, COMPARED THE MICROSCOPIC MARKINGS
ON THEM WITH THOSE ON THE BULLET WHICH HAD KILLED THE STOREKEEPER AND,
ON THIS BASIS, POSITIVELY IDENTIFIED THE PISTOL AS THE WEAPON WHICH HAD
FIRED THE FATAL SHOT.  THIS FATAL SHOT ADMITTEDLY WAS FIRED WHILE PARKS
AND LOWDER WERE IN THE STORE OF THE DECEASED AND WERE IN POSSESSION OF
THE PISTOL WITH WHICH HALEY HAD SUPPLIED THEM.  THERE IS NOTHING IN THE
RECORD TO SUGGEST THE PRESENCE IN THE STORE OF ANY OTHER PISTOL.  HALEY
TESTIFIED THAT THIS PISTOL "LOOKED LIKE" THE ONE HE HAD GIVEN TO HIS
COMPANIONS. 

AFTER HEARING THE FOREGOING AND OTHER MATERIAL EVIDENCE, INCLUDING
THE DISPUTED CONFESSION OF HALEY, THE JURY FOUND HIM GUILTY OF MURDER
IN THE FIRST DEGREE WHILE ATTEMPTING TO PERPETRATE ROBBERY.  THE
VERDICT CARRIED A RECOMMENDATION OF MERCY WHICH AUTOMATICALLY REDUCED
THE STATUTORY PENALTY FROM DEATH TO LIFE IMPRISONMENT.  IN CONSIDERING
THE RECORD AS A WHOLE, AND PARTICULARLY IN REACHING A CONCLUSION OF
FACT THAT THE POLICE OFFICERS WHO EXAMINED HALEY COERCED HIM INTO
MAKING HIS CONFESSION, IT IS APPROPRIATE TO NOTE THAT THE FOREGOING
UNDISPUTED FACTS LEFT COMPARATIVELY LITTLE NEED FOR SUCH A CONFESSION
AS WAS SIGNED BY HALEY.  THAT CONFESSION, IN SUBSTANCE, ADDED ONLY THE
EXPRESS STATEMENT BY HALEY THAT HE KNEW THAT PARKS AND LOWDER WENT INTO
THE STORE TO ROB THE STOREKEEPER AND THAT HALEY REMAINED OUTSIDE TO
SERVE AS A LOOKOUT AND TO WARN PARKS AND LOWDER BY TAPPING ON THE
WINDOW IN CASE ANYONE APPROACHED. 

THE PROCEDURE FOLLOWED BY THE POLICE AS SOON AS THEY HAD THE
INFORMATION UPON WHICH THEY ARRESTED HALEY WAS SUBSTANTIALLY AS
FOLLOWS: 

ON FRIDAY, OCTOBER 19, 1945, AGAIN AT ABOUT MIDNIGHT, AND WHILE HALEY
WAS STILL UP AND ABOUT HIS HOME, AFTER HAVING RETURNED FROM AN EVENING
FOOTBALL GAME, HE WAS ARRESTED BY FOUR POLICEMEN WHO CAME TO HIS HOME
IN TWO CARS.  THEY WERE ADMITTED TO HALEY'S HOME BY HIS MOTHER AND THEY
TOOK HIM WITH THEM TO POLICE HEADQUARTERS, NOT USING HANDCUFFS.  HE WAS
"BOOKED" THERE AT ABOUT 12:30 A.M. FROM THEN UNTIL BETWEEN 3 AND 4 A.M.
HE WAS IN THE RECORD ROOM OF THE DETECTIVE BUREAU, USUALLY WITH TWO
OFFICERS.  WHAT TOOK PLACE THERE LEADING UP TO HIS ORAL, AND LATER
SIGNED, CONFESSION IS THE SUBJECT OF DIRECTLY CONTRADICTORY TESTIMONY
GIVEN BY THE ACCUSED AND THE POLICE.  HALEY TESTIFIED THAT HE WAS
ROUGHLY HANDLED IN SUCH A MANNER THAT IF THIS TESTIMONY IS BELIEVED THE
CONFESSION WAS NOT VOLUNTARY.  ON THE OTHER HAND, THE POLICE AND
EVERYONE ELSE WHO WAS PRESENT OR SAW HALEY DURING OR AFTER THIS
EXAMINATION TESTIFIED IN DETAIL, AND WITH POSITIVENESS, THAT HALEY WAS
NOT ABUSED OR ROUGHLY HANDLED IN ANY DEGREE AND THAT HIS PERSON AND
CLOTHES PRESENTED A NORMAL APPEARANCE AFTER THE EXAMINATION. 
IMMEDIATELY AFTER HALEY HAD BEEN SHOWN ALLEGED CONFESSIONS BY PARKS AND
LOWDER AND HAD READ AT LEAST THAT BY PARKS, HALEY MADE AN ORAL
STATEMENT EVIDENTLY SIMILAR TO THAT MADE BY PARKS.  THEREUPON, HALEY
WAS TAKEN TO A FRONT ROOM WHERE A SERGEANT OF DETECTIVES TYPED HALEY'S
CONFESSION IN QUESTION AND ANSWER FORM DURING A PERIOD WHICH CONSUMED
FROM ONE HOUR TO AN HOUR AND A HALF.  BEFORE TAKING THIS CONFESSION THE
SERGEANT TESTIFIED THAT HE TYPED AND READ TO HALEY, CLEARLY AND
DISTINCTLY, THE PRELIMINARY STATEMENT, A PART OF WHICH IS QUOTED IN
THIS COURT'S OPINION AS BEING AT THE BEGINNING OF THE WRITTEN
CONFESSION.  THE SERGEANT TESTIFIED THAT HALEY, AFTER HEARING THIS
INTRODUCTION, SAID THAT HE STILL DESIRED TO MAKE A STATEMENT AND TELL
THE TRUTH.  WHEN COMPLETED, THE STATEMENT, SO PREPARED, WAS SIGNED BY
HALEY IN THE PRESENCE NOT ONLY OF SOME OF THE POLICE OFFICERS WHO HAD
QUESTIONED HIM BUT ALSO OF TWO CIVILIAN WITNESSES CALLED IN FOR THAT
PURPOSE FROM OUTSIDE OF POLICE HEADQUARTERS.  THE ACTING CHIEF OF
POLICE, WHO HIMSELF WAS A MEMBER OF THE BAR OF OHIO, REQUESTED HALEY TO
READ THE ENTIRE CONFESSION.  WHEN THIS HAD BEEN DONE, THE ACTING CHIEF
OF POLICE, IN THE CAPACITY OF A NOTARY PUBLIC, ADMINISTERED THE OATH
SIGNED BY HALEY AT THE END OF THE CONFESSION, STATING THAT THE FACTS
CONTAINED THEREIN WERE TRUE AND CORRECT AS HALEY VERILY BEVIEVED.  A
NEWSPAPER PHOTOGRAPHER THEN TOOK A PICTURE OF HALEY IN COMPANY WITH
PARKS AND LOWDER.  EITHER THEN OR ON THE FOLLOWING MONDAY, THE DATE
BEING DISPUTED, HALEY WAS TAKEN BACK TO HIS HOME WHERE THE POLICE FOUND
THE TRUNK DESCRIBED BY HIM AS THAT FROM WHICH HE HAD TAKEN THE PISTOL. 
AFTER HIS CONFESSION HE WAS PLACED IN THE CITY JAIL AND, ON THE
FOLLOWING TUESDAY, OCTOBER 23, HE WAS REMOVED TO THE COUNTY JAIL.  ON
THAT DAY, A COMPLAINT WAS FILED IN THE COURT OF COMMON PLEAS OF STARK
COUNTY, OHIO, DIVISION OF DOMESTIC RELATIONS, JUVENILE DEPARTMENT, BY A
SERGEANT OF POLICE, CHARGING HALEY WITH BEING A DELINQUENT CHILD. 

ON OCTOBER 29, 1945, PURSUANT TO A MOTION OF THE PROSECUTING
ATTORNEY, THE JUDGE ASSIGNED TO THE ABOVE-MENTIONED DOMESTIC RELATIONS
DIVISION OF THE COURT OF COMMON PLEAS APPOINTED A DOCTOR TO MAKE A
PHYSICAL AND MENTAL EXAMINATION OF THE ACCUSED. 

ON NOVEMBER 1, 1945, THE MENTAL AND PHYSICAL EXAMINATION WAS FILED
AND, AFTER HEARING, THE COURT FOUND - 

"THAT THE SAID CHILD HAS COMMITTED AN ACT WHICH, IF (IT) HAD BEEN
COMMITTED BY AN ADULT, WOULD BE A FELONY; AN EXAMINATION HAVING BEEN
MADE OF THE SAID JOHN HALEY BY A COMPETENT PHYSICIAN, QUALIFIED TO MAKE
SUCH EXAMINATION, IT IS ORDERED THAT THE SAID JOHN HALEY SHALL
PERSONALLY BE AND APPEAR BEFORE THE COURT OF COMMON PLEAS ON THE FIRST
DAY OF THE NEXT TERM THEREOF TO ANSWER FOR SUCH ACT." 

ON NOVEMBER 14, 1945, A TRANSCRIPT FROM THE DOCKET OF THE ABOVE
MENTIONED JUVENILE COURT WAS FILED IN THE COURT OF COMMON PLEAS. 
THEREAFTER, BEGINNING WITH AN INDICTMENT FOR FIRST DEGREE MURDER WHICH
WAS RETURNED ON JANUARY 8, 1946, THE CASE PROCEEDED TO ARRAIGNMENT ON
JANUARY 11, AND TO TRIAL IN THE COURT OF COMMON PLEAS MARCH 25-APRIL 3,
WHEN A VERDICT OF GUILTY AS CHARGED WAS RETURNED, WITH A RECOMMENDATION
OF MERCY.  A MOTION FOR A NEW TRIAL WAS OVERRULED AND THE CASE WAS
APPEALED TO THE COURT OF APPEALS FOR STARK COUNTY, OHIO, AND THERE WAS
UNANIMOUSLY AFFIRMED OCTOBER 25, 1946.  APPEAL WAS MADE, BOTH ON A
MOTION FOR LEAVE TO APPEAL AND AS A MATTER OF RIGHT, TO THE SUPREME
COURT OF OHIO.  THE MOTION FOR LEAVE TO APPEAL WAS OVERRULED AND THE
APPEAL, AS A MATTER OF RIGHT, WAS DISMISSED BY UNANIMOUS ACTION OF THE
FIVE JUDGES SITTING IN THE CASE.  THE REASON GIVEN FOR DISMISSAL WAS
THAT THE COURT FOUND THAT NO DEBATABLE CONSTITUTIONAL QUESTION WAS
INVOLVED IN THE CASE.  FN1 

BEGINNING WITH THE ARRAIGNMENT OF THE ACCUSED, THE RECORD SHOWS THAT
HALEY HAS BEEN REPRESENTED BY COUNSEL.  THE CASE HAS PROCEEDED IN THIS
COURT IN FORMA PAUPERIS, THE ACCUSED BEING REPRESENTED BY THE SAME
COMPETENT COUNSEL WHO REPRESENTED HIM IN THE STATE COURTS.  IT DOES NOT
APPEAR THAT THE ACCUSED EVER ASKED TO HAVE COUNSEL APPOINTED FOR HIM. 
IT DOES NOT APPEAR THAT, AT ANY TIME BEFORE HIS ARRAIGNMENT, HE
EMPLOYED COUNSEL OR ASKED FOR COUNSEL TO REPRESENT HIM.  THE NEAREST
APPROACH TO SUCH ACTION IS THAT DISCLOSED BY THE TESTIMONY OF HALEY'S
MOTHER AND BY A STIPULATION BETWEEN THE PARTIES THAT LEROY CONTIE, AN
ATTORNEY, ON MONDAY, OCTOBER 22, WAS EMPLOYED BY MRS. HALEY TO
REPRESENT HER SON.  MR. CONTIE WENT TO THE CITY JAIL ON TWO OCCASIONS
AFTER HALEY'S CONFESSION WAS SIGNED, WAS UNABLE TO SEE HIM AND WAS
REFUSED ADMISSION BY THE POLICE AUTHORITIES.  MR. CONTIE DID NOT SEE
HALEY UNTIL AFTER THE LATTER HAD BEEN TRANSFERRED TO THE COUNTY JAIL,
SOME DAYS AFTER THAT.  HE APPARENTLY DID NOT BECOME AN ATTORNEY OF
RECORD IN THE CASE. 

IT IS NOT DISPUTED ON HALEY'S BEHALF THAT HIS ARREST AND UNCOERCIVE
QUESTIONING AFTER HIS ARREST WOULD HAVE BEEN PROPER UNDER SUCH
CIRCUMSTANCES.  WHILE THE CONSTITUTIONAL AND STATUTORY RIGHTS OF THE
ACCUSED, UNDER SUCH CIRCUMSTANCES, MUST BE SAFEGUARDED CAREFULLY, IT IS
EQUALLY CLEAR THAT SERIOUS CONSTITUTIONAL AND STATUTORY OBLIGATIONS
REST UPON LAW ENFORCEMENT OFFICERS TO DISCOVER PROMPTLY THOSE GUILTY OF
SUCH AN UNPROVOKED MURDER AS HAD BEEN COMMITTED.  LIKEWISE, THE
COMPARATIVE YOUTH OF THESE THREE BOYS WHO NOW HAVE BEEN CONVICTED OF
THIS MURDER IS ENTITLED TO FULL RECOGNITION IN CONSIDERING THE
CONSTITUTIONALITY OF THE PROCESS OF LAW THAT HAS BEEN APPLIED TO THEM. 
THIS HAS BEEN DONE.  HALEY'S YOUTH WAS RECOGNIZED EXPRESSLY BY THE
PRELIMINARY PROCEEDINGS BEFORE THE JUVENILE DEPARTMENT OF THE DIVISION
OF DOMESTIC RELATIONS OF THE LOCAL COURT.  THOSE PROCEEDINGS MARKEDLY
DIFFERENTIATED THE PROCEDURE FROM THAT ORDINARILY FOLLOWED IN THE CASE
OF AN ADULT.  UNDOUBTEDLY THE THOUGHT OF HALEY'S YOUTH WAS REFLECTED IN
THE JURY'S RECOMMENDATION OF MERCY, AND IN THE CARE WHICH THE SERGEANT
AND THE ACTING CHIEF OF POLICE TESTIFIED THAT THEY TOOK IN PREPARING
HIS CONFESSION FOR SIGNATURE AND IN SEEING TO IT THAT HALEY UNDERSTOOD
IT AND HIS RIGHTS IN CONNECTION WITH IT.  IT IS NECESSARY TO RECOGNIZE,
ON THE OTHER HAND, THAT THE OFFENSE HERE CHARGED WAS NOT AN ORDINARY
JUVENILE OFFENSE.  IT WAS A CAPITAL OFFENSE OF THE MOST SERIOUS KIND. 
IT INVOLVED THE SAME FATAL CONSEQUENCE TO A LAW-ABIDING CITIZEN OF
CANTON AS WOULD HAVE BEEN THE CASE IF IT HAD BEEN COMMITTED BY ADULT
OFFENDERS.  AN OBLIGATION RESTS UPON THE POLICE NOT ONLY TO DISCOVER
THE PERPETRATORS OF SUCH A CRIME BUT ALSO TO DETERMINE, AS PROMPTLY AS
POSSIBLE, THEIR GUILT OR INNOCENCE TO A DEGREE SUFFICIENT TO JUSTIFY
THEIR PROSECUTION OR RELEASE.  IT IS COMMON KNOWLEDGE THAT MANY
FELONIES ARE BEING COMMITTED CURRENTLY BY MINORS AND AN OBLIGATION
ATTACHES TO LAW ENFORCEMENT OFFICIALS TO PUNISH, PREVENT AND DISCOURAGE
SUCH CONDUCT BY MINORS AS WELL AS BY ADULTS.  IF HALEY'S PART IN THIS
CRIME HAD BEEN REASONABLY SUSPECTED BY THE POLICE IMMEDIATELY AFTER ITS
COMMISSION AT MIDNIGHT, OCTOBER 14, THE POLICE WOULD HAVE DESERVED
SEVERE CRITICISM IF THEY HAD NOT ARRESTED AND QUESTIONED HIM THAT
NIGHT.  THE SAME OBLIGATION RESTED ON THEM, FIVE DAYS LATER, AT
MIDNIGHT, OCTOBER 19. 

AS ADMITTED BY THE PETITIONER IN THIS COURT, THE ENTIRE ISSUE HERE
RESOLVES ITSELF INTO A CONSIDERATION OF THE METHODS USED IN OBTAINING
THE CONFESSION.  THIS IN TURN RESOLVES ITSELF PRIMARILY INTO A QUESTION
OF THE CREDIBILITY OF WITNESSES AS A MEANS OF DETERMINING THE CONTESTED
QUESTION AS TO WHAT METHODS IN FACT WERE USED.  A VOLUNTARY CONFESSION
NOT ONLY IS VALID BUT IT IS THE USUAL, BEST AND GENERALLY FAIREST KIND
OF EVIDENCE.  OFTEN IT IS THE ONLY DIRECT EVIDENCE OBTAINABLE AS TO THE
STATE OF MIND OF THE ACCUSED.  THE GIVING OF SUCH A CONFESSION PROMPTLY
IS TO BE ENCOURAGED IN THE INTEREST OF ALL CONCERNED.  THE POLICE ARE
JUSTIFIED AND UNDER OBLIGATION TO SEEK SUCH CONFESSIONS.  AT THE SAME
TIME, IT IS A PRIMARY PART OF THEIR OBLIGATION TO SEE TO IT THAT
COERCION, INCLUDING INTIMIDATION, IS NOT USED TO SECURE A CONFESSION. 
IT SHOULD BE EVIDENT TO THEM NOT ONLY THAT INVOLUNTARY CONFESSIONS ARE
WORTHLESS AS EVIDENCE, BUT THAT COERCION APPLIED IN SECURING THEM
ITSELF CONSTITUTES A SERIOUS VIOLATION OF DUTY. 

THE QUESTION IN THIS CASE IS THE SIMPLE ONE - WAS THE CONFESSION IN
FACT VOLUNTARY?  AS IN MANY OTHER CASES IT IS DIFFICULT, BECAUSE OF
CONFLICTING TESTIMONY, TO DETERMINE THIS CONTROLLING FACT.  IT MAY NOT
BE POSSIBLE TO BECOME ABSOLUTELY CERTAIN OF IT.  SELF-SERVING PERJURY,
HOWEVER, MUST NOT BE THE PASS-KEY TO A MANDATORY EXCLUSION OF THE
CONFESSION FROM USE AS EVIDENCE.  IT IS FOR THE TRIAL JUDGE AND THE
JURY, UNDER THE SAFEGUARDS OF CONSTITUTIONAL DUE PROCESS OF CRIMINAL
LAW, TO APPLY EVENHANDED JUSTICE TO THE DETERMINATION OF THE FACTUAL
ISSUES.  TO DO THIS, THEY NEED EVERY AVAILABLE LAWFUL AID TO HELP THEM
TEST THE CREDIBILITY OF THE CONFLICTING TESTIMONY. 

DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT REQUIRES THAT THE
STATES USE SOME FAIR MEANS TO DETERMINE THE VOLUNTARY CHARACTER OF A
CONFESSION LIKE THAT IN THIS CASE.  THE PROCEDURE MAY DIFFER IN EACH
STATE.  THE FORM ADOPTED BY OHIO IS NOT CRITICIZED BY THIS COURT.  THE
SOLE QUESTION HERE IS THE VALIDITY OF THE APPLICATION OF THE OHIO
PROCEDURE TO THE FACTS OF THIS CASE.  THAT APPLICATION CAN BE TESTED IN
THIS COURT ONLY UNDER THE GREAT HANDICAP OF ATTEMPTING TO APPRAISE, BY
USE OF THE PRINTED RECORD, THE ACTION OF THE TRIAL COURT AND JURY TAKEN
IN THE LIGHT OF THE LIVING RECORD.  IN CONNECTION WITH EVERY CONFESSION
THAT IS UNACCOMPANIED BY TESTIMONY AS TO HOW IT WAS SECURED, ALL SORTS
OF CONDITIONS MAY BE CONJECTURED AS TO THE METHODS USED TO SECURE IT.
TO RELY UPON CONJECTURE, EITHER IN FAVOR OF OR AGAINST THE ACCUSED, IS
NOT JUSTICE.  IT IS NOT DUE PROCESS OF LAW BY ANY DEFINITION. 
SIMILARLY, ALL SORTS OF CONDITIONS AS TO THE METHODS WHICH MIGHT HAVE
BEEN USED IN OBTAINING SUCH A CONFESSION MAY BE CONJECTURED BY A
WITNESS AND FALSELY TESTIFIED TO BY HIM.  SUCH ACTION PUTS THE TRUE
TESTIMONY INTO DIRECT CONFLICT WITH THE FALSE.  IN THE PRESENT CASE,
THE CONFLICT OF TESTIMONY IS SO CLEAR THAT IT IS EVIDENT THAT ONE OR
MORE OF THE WITNESSES MUST HAVE COMMITTED PERJURY.  THE ISSUE RESOLVES
ITSELF, THEREFORE, NOT INTO ONE OF CIVIL RIGHTS BUT INTO ONE OF THE
TRUTH OR FALSITY OF THE TESTIMONY AS TO THE METHODS USED IN OBTAINING
HALEY'S CONFESSION.  THIS ISSUE OF CREDIBILITY CANNOT BE RESOLVED HERE
WITH NEARLY AS GOOD A CHANCE OF DETERMINING THE TRUTH AS THAT WHICH WAS
ENJOYED BY THE TRIAL COURT AND JURY.  THEY SAW AND HEARD THE WITNESSES
AND THEY EXAMINED THE EXHIBITS.  FURTHERMORE, THEY AND THE STATE
APPELLATE AND SUPREME COURTS ALSO WERE FAMILIAR WITH THE GENERAL
CONDITIONS AND STANDARDS OF LAW ENFORCEMENT IN EFFECT IN THE LONG
ESTABLISHED INDUSTRIAL CIVIC CENTER OF OVER 100,000 PEOPLE OF CANTON,
OHIO, WHERE THIS CONFESSION WAS MADE AND USED.  THE TESTIMONY OF THE
WITNESSES AS TO THE METHODS USED SHOULD BE READ IN THE CONTEXT OF THE
COMMUNITY WHERE SUCH TESTIMONY WAS GIVEN IN ORDER FOR IT TO BE FAIRLY
APPRAISED.  THERE IS NO SUGGESTION THAT RACIAL DISCRIMINATION OR
PREJUDICE EXISTED IN THE ATTITUDE OF ANY OF THE WITNESSES, OR OF THE
COURTS OR OF THE COMMUNITY OF CANTON.  THE ISSUE IS THE CREDIBILITY OF
THESE PARTICULAR POLICE OFFICERS AND OTHER LOCAL WITNESSES.  IT CANNOT
BE DETERMINED ON THE BASIS OF PUBLISHED REPORTS, HOWEVER AUTHENTIC, OF
POLICE METHODS IN OTHER COMMUNITIES IN OTHER YEARS.  "THE MERE FACT
THAT A CONFESSION WAS MADE WHILE IN THE CUSTODY OF THE POLICE DOES NOT
RENDER IT INADMISSIBLE."  MCNABB V. UNITED STATES, 318 U.S. 332, 346. 

THE PRESENT CASE, TURNING AS IT DOES UPON THE CREDIBILITY OF THE
TESTIMONY AS TO THE EXISTENCE OF THE COERCION, IF ANY, THAT WAS USED TO
SECURE THE CONFESSION, IS READILY DISTINGUISHABLE FROM CASES RELIED
UPON BY THE ACCUSED.  FOR EXAMPLE, IN THE PRESENT CASE, THIS COURT DOES
NOT RELY ON ANY CLAIM THAT THE CONFESSION WAS ELICITED BY UNREASONABLY
DELAYING THE ARRAIGNMENT OF THE ACCUSED OR EVEN BY ANY ALLEGED DELAY IN
CHARGING HIM WITH DELINQUENCY IN THE JUVENILE COURT.  THE CONFESSION OF
THE ACCUSED WAS GIVEN, TRANSCRIBED AND SIGNED BY 5:30 A.M. ON OCTOBER
20, IMMEDIATELY FOLLOWING HIS ARREST AT ABOUT MIDNIGHT.  THERE IS,
ACCORDINGLY, NO BASIS FOR CONTENDING THAT THERE WAS UNNECESSARY DELAY
IN TAKING THE ACCUSED BEFORE A COURT OR MAGISTRATE HAVING JURISDICTION
OF THE OFFENSE INSOFAR AS SUCH UNNECESSARY DELAY, IF ANY, HAD RELATION
TO THE CONFESSION.  WHATEVER DELAY THERE WAS OCCURRED AFTER THE
CONFESSION WAS MADE AND IT IS OBVIOUS THAT IT WAS NOT UNREASONABLE TO
DELAY THE TAKING OF THE ACCUSED BEFORE A COURT OR MAGISTRATE AT LEAST
UNTIL AFTER 5:30 A.M.  UNITED STATES V. MITCHELL, 322 U.S. 65.  CF.
ANDERSON V. UNITED STATES, 318 U.S. 350; MCNABB V. UNITED STATES, 318
U.S. 332. 

IF THE UNEQUIVOCAL AND CONSISTENT TESTIMONY OF THE SEVERAL POLICE
OFFICERS IS BELIEVED, INCLUDING THAT OF THE ACTING CHIEF OF POLICE, THE
CONFESSION WAS CLEARLY VOLUNTARY.  THE POLICE OFFICERS WERE MEN OF
EXPERIENCE IN THE LOCAL DETECTIVE SERVICE AND, IF INFERENCES ARE TO BE
INDULGED IN, IT MAY BE INFERRED THAT THEY UNDERSTOOD THE NECESSITY THAT
THE CONFESSION BE UNCOERCED AND VOLUNTARY IF IT WAS TO BE ADMISSIBLE IN
EVIDENCE.  THE PRINCIPAL EXAMINING OFFICERS WERE TWO DETECTIVES, ONE OF
NINE AND THE OTHER OF ELEVEN YEARS' POLICE SERVICE.  THE SERGEANT OF
DETECTIVES WHO TYPED THE CONFESSION WAS A MAN OF NINE YEARS' POLICE
SERVICE.  EVERY POLICEMAN WHO TOOK ANY PART IN THE EXAMINATION WAS
CALLED AS A WITNESS.  EACH TESTIFIED THAT THERE WAS NO USE OF FORCE AND
NO INTIMIDATION DURING THE EXAMINATION.  EACH TESTIFIED THAT IN FACT
THE CONFESSION WAS UNCOERCED.  THE QUESTIONING OF THE ACCUSED WAS
DESCRIBED AS HAVING BEEN CARRIED ON WHILE THE PARTIES TO IT WERE SEATED
NEAR A DESK AND NOT WITHIN ARM'S LENGTH OF EACH OTHER.  IT WAS
CONDUCTED IN THE RECORD ROOM OF THE DETECTIVE BUREAU, RATHER THAN IN
JAIL.  THE ACCUSED WAS NOT HANDCUFFED NOR SUBJECTED TO INDIGNITIES. 
THE POLICE, THE NEWSPAPER REPORTER, AND THE ICEMAN WHO WAS BROUGHT IN
TO WITNESS THE ACCUSED'S SIGNATURE TO THE CONFESSION TESTIFIED TO THE
NORMAL APPEARANCE OF THE CLOTHING AND PERSON OF THE ACCUSED DURING OR
FOLLOWING THE EXAMINATION, INCLUDING THE TIME HE WAS PHOTOGRAPHED.  THE
WITNESSES TESTIFIED ONLY AS TO WHAT THEY SEVERALLY HAD OBSERVED DURING
THE RESPECTIVE PERIODS THAT THEY WERE PRESENT BUT, TOGETHER, THEY
COVERED THE ENTIRE PERIOD OF THE EXAMINATION.  IF THE CONFESSION WAS IN
FACT VOLUNTARY, THESE WITNESSES COULD NOT HAVE SAID MORE TO PROVE IT.
IF THEIR TESTIMONY IS TRUE, IT MAKES FALSE MUCH OF THE TESTIMONY OF THE
ACCUSED.  THE TESTING OF THE CREDIBILITY OF THIS TESTIMONY IS THEREFORE
IMPORTANT.  THIS TESTIMONY, FURTHERMORE, SHOULD NOT BE LAID ASIDE HERE
MERELY BECAUSE IT IS IN CONFLICT WITH OPPOSING TESTIMONY.  IF THE TRIAL
COURT AND JURY BELIEVED THE POLICE AND DISBELIEVED THE ACCUSED ON THIS
TESTIMONY, THERE WAS NO SUBSTANTIAL GROUND LEFT FOR ANY INFERENCE OF
COERCION.  IF, ON THE CONTRARY, THEY BELIEVED THE ACCUSED AND THEREFORE
CONCLUDED THAT THE POLICE AND OTHER WITNESSES AGREEING WITH THEM WERE
PERJURERS, THE TRIAL COURT COULD NOT FAIRLY HAVE ADMITTED THE
CONFESSION IN EVIDENCE.    THE EVIDENCE IN THE RECORD INCLUDES AMPLE
EVIDENCE TO SUPPORT THE ACTION TAKEN BY THE TRIAL JUDGE AND JURY
AGAINST THE ACCUSED IF THIS COURT CHOOSES TO BELIEVE THAT EVIDENCE AND
TO DISBELIEVE THE CONFLICTING EVIDENCE.  FURTHERMORE, THAT EVIDENCE, IF
SO BELIEVED, IS STRONG AND SPECIFIC ENOUGH GREATLY TO OFFSET
CONFLICTING INFERENCES WHICH OTHERWISE MIGHT BE SUGGESTED TO THIS COURT
BY THE UNDISPUTED EVIDENCE.    AS A REVIEWING COURT, WE HAVE A MAJOR
OBLIGATION TO GUARD AGAINST READING INTO THE PRINTED RECORD PURELY
CONJECTURAL CONCEPTS.  TO CONJECTURE FROM THE PRINTED RECORD OF THIS
CASE THAT THE ACCUSED, BECAUSE OF HIS KNOWN PROXIMITY TO THE SCENE OF
THE CRIME AND HIS KNOWN ASSOCIATION THAT NIGHT WITH THE BOYS, ONE OF
WHOM DID THE ACTUAL SHOOTING, MUST HAVE BEEN A HARDENED, SMART BOY,
WHOSE CONDUCT AND FALSEHOODS NECESSARILY MADE ALL OF HIS TESTIMONY
WORTHLESS PER SE, IS AS UNJUSTIFIABLE AS IT WOULD BE TO ASSUME, WITHOUT
SEEING HIM OR HIS MOTHER AS WITNESSES, THAT HE WAS AN IMPRESSIONABLE,
INNOCENT LAD, LIKELY TO BE PANIC-STRICKEN BY POLICE SURROUNDINGS AND
THAT ALL HIS TESTIMONY MUST BE ACCEPTED AS TRUE EXCEPT WHERE EXPRESSLY
ADMITTED BY HIM TO HAVE BEEN FALSE.  TO ASSUME FROM THE PRINTED RECORD
THAT THE POLICEMEN, INCLUDING THE ACTING CHIEF, AND THE CIVILIANS WHO
GAVE UNEQUIVOCAL TESTIMONY AS TO THE ABSENCE OF FORCE AND INTIMIDATION
IN SECURING THE CONFESSION OR AS TO THE NORMAL APPEARANCE OF THE
ACCUSED AND OF HIS CLOTHING AT THE TIME OF MAKING THE CONFESSION, WERE
CALLOUS AS TO THE FEELINGS OF A BOY 15 YEARS OF AGE OR WERE GUILTY OF
DELIBERATE PERJURY WOULD BE AS UNJUSTIFIABLE AS IT WOULD BE TO ASSUME,
WITHOUT HEARING AND SEEING THE RESPECTIVE POLICE OFFICERS, AS
WITNESSES, THAT EACH OF THEM WAS AS WELL-INFORMED, TOLERANT AND
THOUGHTFUL AS AN IDEAL JUVENILE JUDGE.  IN THIS CASE, THIS COURT SEEMS
TO HAVE LAID ASIDE ALL THE CONFLICTING TESTIMONY AND THEN, WITHOUT
SEEING OR HEARING THE WITNESSES, HAS ATTEMPTED TO DRAW, FROM THE MEAGER
BALANCE OF THE RECORD, IMPORTANT INFERENCES OF CALLOUSNESS AND COERCION
ON THE PART OF THE EXAMINING OFFICERS.  BY DISREGARDING THE CONFLICTING
MATERIAL TESTIMONY INSTEAD OF CHOOSING BETWEEN THE TRUE AND THE FALSE
MATERIAL TESTIMONY, THE MATERIAL RECORD IS REDUCED LARGELY TO ISOLATED
ITEMS OF SUBSEQUENT CONDUCT ON THE PART OF CERTAIN POLICE OFFICERS WHO
ARE ALLEGED TO HAVE HAMPERED THE BOY'S MOTHER OR AN ATTORNEY IN TRYING
TO SEE HIM SEVERAL DAYS AFTER HIS CONFESSION.  THERE IS NO LIKELIHOOD
THAT THESE OFFICERS WERE THE SAME ONES WHO CONDUCTED THE EXAMINATION. 
FN2  IT IS NOT ENOUGH FOR THIS COURT TO SAY IN ITS OPINION TODAY THAT
IF "THE UNDISPUTED EVIDENCE SUGGESTS THAT FORCE OR COERCION WAS USED TO
EXACT THE CONFESSION, WE WILL NOT PERMIT THE JUDGMENT OF CONVICTION TO
STAND  ...  "  RECOGNITION MUST BE GIVEN ALSO TO THE RIGHT OF THE TRIAL
COURT TO WEIGHT THE CREDIBILITY OF THE MATERIAL DISPUTED EVIDENCE. 

WE ARE NOT IN A POSITION, ON THE BASIS OF MERE SUSPICION, TO HOLD THE
TRIAL COURT IN ERROR AND TO CONCLUDE "THAT THIS WAS A CONFESSION WRUNG
FROM A CHILD BY MEANS WHICH THE LAW SHOULD NOT SANCTION."  WHILE
COERCION AND INTIMIDATION IN SECURING A CONFESSION SHOULD BE
UNEQUIVOCALLY CONDEMNED AND PUNISHED AND THEIR PRODUCT INVALIDATED,
NEVERTHELESS SUCH COERCION SHOULD NOT BE PRESUMED TO EXIST BECAUSE OF A
MERE SUGGESTION OR SUSPICION, IN THE FACE OF CONTRARY FINDINGS BY THE
TRIERS OF FACT.  ON THE BASIS OF THE UNDISPUTED TESTIMONY RELIED UPON
BY THIS COURT, IT IS NOT JUSTIFIED IN MAKING SUCH A DETERMINATION OF
"THE CALLOUS ATTITUDE OF THE POLICE" OF CANTON AS THEREBY TO OVERRIDE
NOT ONLY THE SWORN TESTIMONY OF THE STATE'S PUBLIC OFFICIALS BUT ALSO
THE CONCLUSIONS OF THE TRIERS OF FACT.  THE TRIAL JUDGE, WITH HIS FIRST
HAND KNOWLEDGE, BOTH OF THE CREDIBILITY INDICATED BY THE TESTIMONY IN
OPEN COURT AND OF THE HABITUAL "ATTITUDE OF THE POLICE" OF CANTON, IF
THERE BE ANY SUCH ATTITUDE, FOUND TO THE CONTRARY.  THAT JUDGE AND THE
LAW ENFORCEMENT OFFICERS OF CANTON HAVE BEEN ENTRUSTED BY THE STATE OF
OHIO WITH THE ENFORCEMENT OF THE CONSTITUTIONAL OBLIGATIONS OF THE
PUBLIC TO EACH INDIVIDUAL AND ALSO OF EACH INDIVIDUAL TO THE PUBLIC. 
IN THE ABSENCE OF SUBSTANTIAL PROOF TO UPSET THE FINDINGS OF THE TRIAL
COURT, THESE PUBLIC OFFICERS SHOULD NOT BE CHARGED WITH CALLOUSNESS
TOWARD, OR WITH VIOLATION OF, THEIR CONSTITUTIONAL OBLIGATIONS. 

THE LEGAL PROCESS GOVERNING THE ADMISSION OF CONFESSIONS IN EVIDENCE
IN JURY TRIALS IN OHIO IN A CASE LIKE THIS TAKES THESE CONDITIONS INTO
CONSIDERATION.  THE OHIO PROCEDURE PROVIDES FOR A PRELIMINARY
EXAMINATION BY THE TRIAL JUDGE, OUT OF THE PRESENCE OF THE JURY, TO
DETERMINE WHETHER THE CONFESSION SHOULD BE EXCLUDED AS INVOLUNTARY. 
SUCH AN EXAMINATION WAS MADE AT LENGTH IN THIS CASE AND THE JUDGE, IN
THE ABSENCE OF THE JURY, OVERRULED THE OBJECTION MADE TO THE CONFESSION
UPON SUCH GROUND.  THE MOTION WAS RENEWED IN THE PRESENCE OF THE JURY
AND AGAIN DENIED.  THE JUDGE LIKEWISE REFUSED TO DIRECT A VERDICT FOR
HALEY AT THE CLOSE OF THE STATE'S CASE AND AGAIN AT THE CLOSE OF THE
ENTIRE CASE.  THE ADMISSIBILITY OF THE CONFESSION WAS FULLY ARGUED IN
THE TRIAL COURT AND, BEFORE ITS ADMISSION, THE TRIAL JUDGE TOOK THE
SUBJECT UNDER ADVISEMENT WHILE HE ADJOURNED THE HEARING OVER A WEEK
END.  HAVING DECIDED THAT THE CONFESSION WAS NOT TO BE EXCLUDED, IT WAS
HIS DUTY TO SUBMIT IT TO THE JURY.  HE DID THIS WITH AMPLE INSTRUCTIONS
ADVISING THE JURY OF ITS RESPONSIBILITY IN CONNECTION WITH THE
CONFESSION.  TESTIMONY THEN WAS GIVEN AT LENGTH, IN THE PRESENCE OF THE
JURY, BEARING UPON THE VOLUNTARINESS OF THE CONFESSION AS WELL AS UPON
THE PROBABLE TRUTH OR FALSITY OF ITS CONTENTS.  THE FINAL INSTRUCTIONS
OF THE COURT EMPHASIZED NOT ONLY THE OBLIGATION AND OPPORTUNITY OF THE
JURY TO PASS UPON THE VOLUNTARINESS OF THE CONFESSION BUT ALSO ITS
OBLIGATION TO GIVE APPROPRIATE WEIGHT TO THE CONFESSION IN THE LIGHT OF
ALL THE TESTIMONY IN THE EVENT THAT THE CONFESSION WAS FOUND BY THE
JURY TO HAVE BEEN A VOLUNTARY ONE.  FN3 

THE RULE OF LAW GOVERNING THIS CASE IS STATED IN LISENBA V.
CALIFORNIA, 314 U.S. 219, 238: 

"THERE ARE CASES, SUCH AS THIS ONE, WHERE THE EVIDENCE AS TO THE
METHODS EMPLOYED TO OBTAIN A CONFESSION IS CONFLICTING, AND IN WHICH,
ALTHOUGH DENIAL OF DUE PROCESS WAS NOT AN ISSUE IN THE TRIAL, AN ISSUE
HAS BEEN RESOLVED BY COURT AND JURY, WHICH INVOLVES AN ANSWER TO THE
DUE PROCESS QUESTION.  IN SUCH A CASE, WE ACCEPT THE DETERMINATION OF
THE TRIERS OF FACT, UNLESS IT IS SO LACKING IN SUPPORT IN THE EVIDENCE
THAT TO GIVE IT EFFECT WOULD WORK THAT FUNDAMENTAL UNFAIRNESS WHICH IS
AT WAR WITH DUE PROCESS." 

THIS COURT PROPERLY RESERVES TO ITSELF AN OPPORTUNITY TO CONSIDER THE
RECORD IN A CASE LIKE THIS INDEPENDENTLY FROM THE CONSIDERATION GIVEN
TO THAT RECORD BY THE LOWER COURTS.  HOWEVER, WHEN CREDIBILITY PLAYS AS
LARGE A PART IN THE RECORD AS IT DOES IN THIS CASE, THIS COURT RARELY
CAN JUSTIFY A REVERSAL OF THE JUDGMENT OF THE TRIAL COURT AND THE
VERDICT OF THE JURY.  THIS IS INCREASINGLY TRUE WHERE THE JUDGMENT OF
THE TRIAL COURT HAS BEEN AFFIRMED, AS HERE, BY TWO STATE COURTS OF
REVIEW.  IN THE PRELIMINARY EXAMINATION AS TO THE ADMISSIBILITY OF THE
CONFESSION IN THIS CASE, THE TRIAL COURT MAY HAVE BELIEVED THE POLICE
AND DISBELIEVED THE ACCUSED.  ON THAT BASIS, THERE IS MORE THAN AMPLE
EVIDENCE TO SUPPORT THE TRIAL COURT'S CONCLUSION IN REFUSING TO EXCLUDE
THE CONFESSION.  A SIMILAR STATEMENT MAY BE MADE AS TO THE PRESENTATION
OF EVIDENCE TO THE JURY.  IT IS NOT JUSTIFIABLE FOR THIS COURT, IN
TESTING THE CONCLUSIONS OF THE TRIERS OF FACT, TO RELY ON INFERENCES
DRAWN SOLELY FROM THOSE PORTIONS OF THE RECORD WHICH, WHEN READ
SEPARATELY, APPARENTLY WERE NOT DISPUTED.  THE ACCEPTANCE OF ONE
VERSION OR THE OTHER OF THE SHARPLY CONFLICTING TESTIMONY WHICH WAS
BEFORE THE TRIERS OF FACT COULD REASONABLY JUSTIFY A CONCLUSION OF THE
TRIAL COURT AND JURY TO EXCLUDE OR ADMIT THE CONFESSION WITHOUT
REFERENCE TO, OR EVEN IN SPITE OF, IMPLICATIONS WHICH MIGHT BE DRAWN
FROM THE COMPARATIVELY COLORLESS UNDISPUTED TESTIMONY IF THAT
UNDISPUTED TESTIMONY STOOD ALONE.  THIS COURT SHOULD INCLUDE IN ITS
APPRAISAL OF THE RECORD NOT ONLY THE UNDISPUTED TESTIMONY, BUT IT ALSO
SHOULD ALLOW FOR A REASONABLE CONCLUSION BY THE TRIAL COURT AND JURY,
BASED UPON ACCEPTANCE OR REJECTION OF THE DISPUTED TESTIMONY.  ON THIS
BASIS, THIS COURT IS NOT JUSTIFIED, IN THIS CASE, IN HOLDING THAT THE
DETERMINATION BY THE TRIAL JUDGE THAT THE CONFESSION WAS ADMISSIBLE, OR
THAT THE HOLDING BY THE TRIAL JURY THAT THE CONFESSOR WAS GUILTY, "IS
SO LACKING IN SUPPORT IN THE EVIDENCE THAT TO GIVE IT EFFECT WOULD WORK
THAT FUNDAMENTAL UNFAIRNESS WHICH IS AT WAR WITH DUE PROCESS."  FN4 

IN TESTING DUE PROCESS THIS COURT MUST FIRST MAKE SURE OF ITS FACTS. 
UNTIL A BETTER WAY IS FOUND FOR TESTING CREDIBILITY THAN BY THE
EXAMINATION OF WITNESSES IN OPEN COURT, WE MUST GIVE TRIAL COURTS AND
JURIES THAT WIDE DISCRETION IN THIS FIELD TO WHICH A LIVING RECORD, AS
DISTINGUISHED FROM A PRINTED RECORD, LOGICALLY ENTITLES THEM.  IN THIS
LIVING RECORD THERE ARE MANY GUIDEPOSTS TO THE TRUTH WHICH ARE NOT IN
THE PRINTED RECORD.  WITHOUT SEEING THEM OURSELVES, WE WILL DO WELL TO
GIVE HEED TO THOSE WHO HAVE SEEN THEM. 

FN1  IT APPEARS FROM THE OPINION OF THE COURT OF APPEALS FOR STARK
COUNTY IN THIS CASE THAT THE THREE BOYS WERE SEPARATELY INDICTED AND
TRIED.  LOWDER AND HALEY WERE TRIED BY JURIES.  PARKS WAIVED THAT RIGHT
AND WAS TRIED BEFORE THREE JUDGES.  EACH WAS CONVICTED OF MURDER IN THE
FIRST DEGREE, WITH A RECOMMENDATION OF MERCY.  APPEALS FROM THE THREE
CASES WERE HEARD TOGETHER AND THE JUDGMENTS WERE AFFIRMED IN EACH WITH
A SINGLE OPINION EMPHASIZING THE SEPARATE CONSIDERATION THAT HAD BEEN
GIVEN TO EACH.  OHIO V. LOWDER, OHIO V. HALEY, OHIO V. PARKS, 79 OHIO
APP. 237, 34 O.O. 568, 72 N.E.2D 785.  SEE ALSO, OHIO V. HALEY, 147
OHIO ST. 340, 70 N.E.2D 905; OHIO V. LOWDER, 147 OHIO ST. 530, 72
N.E.2D 102; OHIO V. PARKS, 147 OHIO ST. 531, 72 N.E.2D 81; WHERE EACH
APPEAL WAS DISMISSED FOR LACK OF A DEBATABLE CONSTITUTIONAL QUESTION. 

FN2  IN A CASE WHICH AROSE IN THE DISTRICT OF COLUMBIA, THIS COURT
SAID: 

"BUT THE CIRCUMSTANCES OF LEGALITY ATTENDING THE MAKING OF THESE ORAL
STATEMENTS ARE NULLIFIED, IT IS SUGGESTED, BY WHAT FOLLOWED.  FOR NOT
UNTIL EIGHT DAYS AFTER THE STATEMENTS WERE MADE WAS MITCHELL ARRAIGNED
BEFORE A COMMITTING MAGISTRATE.  UNDOUBTEDLY HIS DETENTION DURING THIS
PERIOD WAS ILLEGAL.  ...  ILLEGALITY IS ILLEGALITY, AND OFFICERS OF THE
LAW SHOULD DEEM THEMSELVES SPECIAL GUARDIANS OF THE LAW.  BUT IN ANY
EVENT, THE ILLEGALITY OF MITCHELL'S DETENTION DOES NOT RETROACTIVELY
CHANGE THE CIRCUMSTANCES UNDER WHICH HE MADE THE DISCLOSURES.  THESE,
WE HAVE SEEN, WERE NOT ELICITED THROUGH ILLEGALITY.  THEIR ADMISSION,
THEREFORE, WOULD NOT BE USE BY THE GOVERNMENT OF THE FRUITS OF
WRONGDOING BY ITS OFFICERS.  BEING RELEVANT, THEY COULD BE EXCLUDED
ONLY AS A PUNITIVE MEASURE AGAINST UNRELATED WRONGDOING BY THE POLICE. 
OUR DUTY IN SHAPING RULES OF EVIDENCE RELATES TO THE PROPRIETY OF
ADMITTING EVIDENCE.  THIS POWER IS NOT TO BE USED AS AN INDIRECT MODE
OF DISCIPLINING MISCONDUCT."  UNITED STATES V. MITCHELL, 322 U.S. 65,
70-71. 

FN3  THE TRIAL COURT INCLUDED IN ITS FINAL INSTRUCTIONS TO THE JURY
THE FOLLOWING: 

"YOU WILL RECALL THAT I HAVE HERETOFORE SAID TO YOU THAT, IN GENERAL,
THE JUDGE DETERMINES THE ADMISSIBILITY OF EVIDENCE.  BUT, YOU WILL
RECALL I THINK THAT ON MONDAY JUST BEFORE CERTAIN ALLEGED STATEMENTS OR
DECLARATIONS CLAIMED BY THE STATE TO HAVE BEEN MADE BY THE DEFENDANT,
IN PART ORAL AND IN PART CONSISTING OF AN ALLEGED WRITTEN OR TYPED
STATEMENT OR DECLARATION, IDENTIFIED AS STATE'S EXHIBIT D, WERE BY THE
JUDGE PERMITTED TO BE INTRODUCED WITH THE INSTRUCTION THAT YOU THE JURY
WOULD IN THE END AND FINALLY, DETERMINE FIRST, WHETHER THE DEFENDANT
MADE SAID STATEMENTS AND DECLARATIONS, AND IF HE DID MAKE IT, WHETHER
THEY WERE MADE BY THE DEFENDANT VOLUNTARILY AND OF HIS OWN FREE WILL;
AND FURTHER IN THE EVENT YOU SHOULD FIND HE DID MAKE THEM AND MADE THEM
VOLUNTARILY AND OF HIS FREE WILL, JUST WHAT WEIGHT, IF ANY, SHOULD BE
ACCORDED THEM. 

"I NOW AGAIN DIRECT YOUR ATTENTION TO THAT EVIDENCE.  THE STATE
CLAIMS THE DEFENDANT MADE SAID STATEMENTS AND DECLARATIONS AND THAT HE
MADE THEM VOLUNTARILY AND OF HIS OWN FREE WILL.  THE DEFENDANT DENIES
THE STATE'S SAID CLAIMS AND ASSERTS THEY WERE NOT MADE VOLUNTARILY AND
OF FREE WILL.  YOU WILL DECIDE THESE QUESTIONS FROM ALL THE EVIDENCE IN
THE CASE.  SHOULD YOU FIND FROM ALL THE EVIDENCE THAT THE DEFENDANT DID
NOT MAKE THEM, OR IF HE MADE THEM THAT HE DID NOT MAKE THEM VOLUNTARILY
AND OF HIS FREE WILL, YOU WILL IN THAT EVENT DISREGARD THEM ENTIRELY
AND NOT CONSIDER THEM FURTHER.  ON THE OTHER HAND, SHOULD YOU FIND
DEFENDANT DID MAKE THEM AND THAT HE MADE THEM VOLUNTARILY AND OF HIS
OWN FREE WILL, YOU WILL CONSIDER THEM AS EVIDENCE AND GIVE THEM JUST
SUCH WEIGHT TO WHICH YOU FIND FROM ALL THE EVIDENCE THEY ARE ENTITLED. 
SHOULD YOU FIND FROM THE EVIDENCE THAT SOME OF THEM WERE MADE BY THE
DEFENDANT AND BY HIM MADE VOLUNTARILY AND OF HIS FREE WILL, AND FIND
OTHERS WERE NOT MADE BY HIM, OR IF MADE BY HIM, NOT MADE BY HIM
VOLUNTARILY AND OF HIS FREE WILL, YOU WILL CONSIDER ONLY THOSE YOU FIND
WERE MADE BY HIM VOLUNTARILY AND OF HIS FREE WILL AND REJECT THE
OTHERS.  YOU WILL CONSIDER THE ALLEGED ORAL STATEMENTS OR DECLARATIONS,
SEPARATE AND APART FROM THE SAID WRITTEN OR TYPED STATEMENTS, AND THE
CIRCUMSTANCES INCIDENT TO EACH.    "YOU ARE INSTRUCTED FURTHER THAT
STATEMENTS OF GUILT OR DECLARATIONS OF GUILT AS THEY ARE SOMETIMES
CALLED, MADE THROUGH THE INFLUENCE OF HOPES OR FEARS, STATEMENTS OR
DECLARATIONS INDUCED BY PROMISES OF TEMPORAL BENEFIT OR THREATS OF
DISADVANTAGE, ARE TO BE WEIGHED AND NOT TO BE CONSIDERED OF ANY VALUE. 
STATEMENTS AND DECLARATIONS WHICH ARE NOT VOLUNTARY AND OF FREE WILL
MADE, ARE EXCLUDED ON THE GROUND THAT THEY ARE PROBABLY NOT TRUE. 
ANOTHER GROUND FOR THE EXCLUSION IS THAT IT IS A VIOLATION OF THE
CONSTITUTIONAL PROVISION THAT NO MAN SHALL BE REQUIRED TO GIVE EVIDENCE
AGAINST HIMSELF, FOR IF HE IS COMPELLED BY THREATS OR INDUCED BY HOPES
TO MAKE CONFESSION AGAINST HIMSELF, IT IS AN INDIRECT METHOD OF
COMPELLING HIM TO GIVE EVIDENCE AGAINST HIMSELF, WHEN STATEMENTS OR
DECLARATIONS MADE UNDER SUCH CIRCUMSTANCES ARE AFTERWARDS PROVEN
AGAINST HIM IN COURT.  ON THE OTHER HAND, A FREE WILL AND VOLUNTARY
STATEMENT OR ADMISSION, MADE BY A DEFENDANT AGAINST HIS INTEREST,
AGAINST HIS INTEREST, IS ONE OF THE MOST SATISFACTORY PROOFS OF GUILT,
FOR AN INNOCENT PERSON WILL NOT VOLUNTARILY SUBJECT HIMSELF TO INFAMY
AND LIABILITY TO PUNISHMENT BY FALSE STATEMENTS AGAINST HIMSELF. 

"THE STATE HAVING OFFERED THESE STATEMENTS OR ADMISSIONS, MUST PROVE
THAT THEY WERE MADE; BUT THE BURDEN OF PROVING THAT A PARTICULAR
STATEMENT OR ADMISSION WAS OBTAINED BY IMPROPER INDUCEMENTS, IN
GENERAL, IS UPON THE DEFENDANT." 

FN4  SEE LISENBA V. CALIFORNIA, SUPRA, P. 238. 
..END :
























CALLEN V. PENNSYLVANIA R. CO., 332 U.S. 625 


NO. 331.  ARGUED DECEMBER 18, 1947.  - DECIDED JANUARY 12, 1948.  - 162
F.2D 832, AFFIRMED. 


1.  WHERE PLAINTIFF IN A SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT CONTENDED THAT A RELEASE RELIED UPON BY DEFENDANT WAS INVALID
BECAUSE NEITHER PARTY KNEW AT THE TIME IT WAS GIVEN THAT PLAINTIFF'S
INJURY WAS PERMANENT, AND THE PERMANENCE OF THE INJURY WAS DISPUTED BY
DEFENDANT, DEFENDANT WAS ENTITLED TO HAVE THE ISSUE AS TO THE
PERMANENCE OF THE INJURY PASSED UPON BY THE JURY; AND IT WAS ERROR FOR
THE TRIAL COURT TO WITHDRAW FROM THE JURY THE QUESTION OF THE VALIDITY
OF THE RELEASE.  PP. 626-629. 

2.  WHERE, IN A CASE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, A
RAILROAD PLEADS A RELEASE OBTAINED FROM AN INJURED EMPLOYEE AND THE
EMPLOYEE ADMITS GIVING THE RELEASE BUT CHALLENGES ITS VALIDITY ON THE
GROUND OF FRAUD OR MUTUAL MISTAKE, THE BURDEN IS ON THE EMPLOYEE TO
SHOW THAT THE CONTRACT WAS INVALID.  PP. 629-630. 

3.  SECTION 5 OF THE FEDERAL EMPLOYERS' LIABILITY ACT, PROVIDING THAT
ANY CONTRACT TO ENABLE ANY COMMON CARRIER TO "EXEMPT ITSELF FROM ANY
LIABILITY CREATED BY THIS CHAPTER SHALL TO THAT EXTENT BE VOID," DOES
NOT PREVENT A RAILROAD FROM COMPROMISING OR SETTLING CLAIMS AND
OBTAINING RELEASES BASED UPON SUCH SETTLEMENTS.  PP. 630-631. 

CALLEN V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

IN A SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE PLAINTIFF
OBTAINED A JUDGMENT NOTWITHSTANDING A RELEASE PREVIOUSLY GIVEN.  THE
CIRCUIT COURT OF APPEALS REVERSED AND ORDERED A NEW TRIAL.  162 F.2D
832.  THIS COURT GRANTED CERTIORARI.  332 U.S. 807.  AFFIRMED, P. 631. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PLAINTIFF, A RAILROAD BRAKEMAN, BROUGHT THIS ACTION UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, 35 STAT. 65; 53 STAT. 1404; 45 U.S.C. SEC.
51.  HE RECOVERED A JURY VERDICT OF $24,990, BUT THE CIRCUIT COURT OF
APPEALS REVERSED BECAUSE OF ERRORS IN THE CHARGE BY THE DISTRICT JUDGE
AND ORDERED A NEW TRIAL.  THE PLAINTIFF'S CLAIM AS SUBMITTED TO THE
JURY WAS NEGLIGENCE ON THE PART OF AN ENGINEER IN EFFECTING A COUPLING
OPERATION AT A SPEED WHICH PLAINTIFF THOUGHT WOULD JOLT HIM OFF THE
STIRRUP OF THE CAR HE WAS RIDING.  IN JUMPING FOR SAFETY, HE CLAIMED TO
HAVE RECEIVED A SEVERE AND PERMANENT BACK INJURY.  THE DEFENDANT DENIED
THE OCCURRENCE, OFFERED TESTIMONY THAT PLAINTIFF DID NOT WORK AT THE
TIME IN QUESTION AND ALSO EVIDENCE OF HIS ADMISSION THAT HE DID NOT
WORK ON THAT DAY BUT INSTEAD SHOVELED SNOW TO GET HIS CAR OUT OF THE
GARAGE.  IT ALSO WAS TESTIFIED THAT HE HAD TOLD HIS CONDUCTOR HE HURT
HIS BACK ON A DIFFERENT OCCASION.  BUT IF THE INJURY WAS SUSTAINED AT
THE TIME AND PLACE ALLEGED, THE DEFENDANT DENIED NEGLIGENCE, CLAIMED
CONTRIBUTORY NEGLIGENCE AND PLEADED A GENERAL RELEASE.  THE CONTROVERSY
HERE CONCERNS THE RELEASE. 

IT WAS PROVED AND NOT DENIED THAT FOR A CONSIDERATION OF $250 THE
PLAINTIFF EXECUTED A GENERAL RELEASE OF "ALL CLAIMS AND DEMANDS WHICH I
HAVE OR CAN OR MAY HAVE AGAINST THE SAID PENNSYLVANIA RAILROAD COMPANY
FOR OR BY REASON OF PERSONAL INJURIES SUSTAINED BY ME" AT THE TIME AND
PLACE INVOLVED IN THE SUIT.  IT ALSO RELEASED CLAIMS FOR LOSS OF TIME
AND EXPENSE, AND RECITED THAT THE PAYMENT WAS IN COMPROMISE AND NOT AN
ADMISSION OF LIABILITY, THAT PLAINTIFF READ AND UNDERSTOOD THE
AGREEMENT AND THAT THE SUM OF MONEY STATED THEREIN IS ALL THAT HE WAS
TO RECEIVE. 

ON THE TRIAL, THE PLAINTIFF TESTIFIED THAT HE READ AND UNDERSTOOD THE
RELEASE, KNEW WHAT HE WAS DOING AND INTENDED TO WAIVE ANY FURTHER
CLAIM, AND THAT WHEN HE BEGAN TALKING SETTLEMENT HE SAID HE SHOULD HAVE
BETWEEN $300 AND $350.  NO FRAUD WAS ALLEGED, BUT THE PLAINTIFF
TESTIFIED THAT HE EXECUTED THE RELEASE IN RELIANCE ON THE CLAIM AGENT'S
ASSURANCE THAT "THERE WAS NOTHING WRONG" AND THAT HE "WAS ALL RIGHT TO
GO BACK TO THE JOB." 

AT THE TRIAL, PLAINTIFF OFFERED EVIDENCE FROM WHICH THE JURY MIGHT
WELL FIND THAT HE HAD A PERMANENT AND SERIOUS INJURY.  THE CLAIM AGENT
ADMITTED THAT AT THE TIME OF SETTLEMENT HE DID NOT KNOW THE PLAINTIFF
WAS SUFFERING THE INJURY WHICH THE DOCTORS AT THE TRIAL DESCRIBED.  THE
PLAINTIFF HAD GONE TO A FAMILY PHYSICIAN WHO TAPED HIS BACK AND TO A
CHIROPRACTOR WHOSE REPORT PLAINTIFF TOOK WITH HIM TO THE CLAIM AGENT. 
IT DID NOT DIAGNOSE PERMANENT INJURY BUT DID SUGGEST A WEAKNESS MAKING
HIM MORE SUSCEPTIBLE TO RECURRENCE.  THE RAILROAD PROCURED NO MEDICAL
EXAMINATION OF PLAINTIFF.  THE CLAIM AGENT'S TESTIMONY WAS THAT HE
DETERMINED THE AMOUNT OF THE SETTLEMENT ON THE BASIS OF HIS BELIEF THAT
THERE WAS NO LIABILITY. 

INSTRUCTING THE JURY, THE TRIAL COURT STATED: 

"ANYHOW, THEY SETTLED TO THE EXTENT OF $250.00, AND THE RELEASE HAS
BEEN OFFERED IN EVIDENCE AND ADMITTED, AND BOTH SIDES AGREE THAT THAT
RELEASE WAS NOT IN CONTEMPLATION OF ANY SORT OF PERMANENT INJURY. 

     .         .         .         .         . 

"NOW, I AM GOING TO CONSIDER THAT RELEASE AS BINDING TO THE AMOUNT OF
$250.00, AND IF YOU FIND A VERDICT FOR THE PLAINTIFF YOU WILL DEDUCT
THAT FROM ANY AMOUNT YOU WOULD OTHERWISE GIVE HIM.  THE $250.00 HE GOT
FOR EXPENSES AND MEDICAL BILLS AND SERVICES THAT HE OBTAINED UP TO THAT
TIME; AND IF YOU FIND THAT HE IS ENTITLED TO A VERDICT AT YOUR HANDS I
WILL ASK YOU TO DEDUCT THAT $250.00 FROM ANY AMOUNT YOU OTHERWISE WOULD
AWARD HIM, BECAUSE THAT IS WHAT HE AGREED TO TAKE TOWARD THAT
PARTICULAR PHASE OF HIS CLAIM, AND OF COURSE HE WOULD NOT AND DOES NOT
ASK, AS I UNDERSTAND IT TO BE EXCUSED FROM THAT,  - HE ADMITS THAT HE
GOT IT, AND THERE IT IS. 

"THE RELEASE, AS I HAVE TOLD THE ATTORNEYS FOR BOTH SIDES, I DO NOT
CONSIDER BINDING INSOFAR AS IT APPLIES TO HIS PERMANENT INJURIES,
BECAUSE THE PENNSYLVANIA RAILROAD CERTAINLY DIDN'T KNOW HE WAS
PERMANENTLY INJURED  ...  " 

THE CIRCUIT COURT OF APPEALS, QUITE RIGHTLY WE THINK, CONSTRUED THE
CHARGE OF THE DISTRICT JUDGE AS WITHDRAWING THE QUESTION OF VALIDITY OF
THE RELEASE FROM THE JURY AND SAID:  "THIS WAS PALPABLE ERROR UNDER THE
FACTS RELATING TO THE RELEASE AND ENTIRELY ASIDE FROM THE COURT'S
INCORRECT ASSUMPTION THAT THERE WAS NO DISPUTE ABOUT THE PERMANENCY OF
THE INJURIES." 

AN EXAMINATION OF THE RECORD AT THE TRIAL MAKES IT CLEAR THAT THE
ISSUE WAS RAISED AND SHARPLY LITIGATED AS TO WHETHER THE INJURY, IF
RECEIVED BY PLAINTIFF IN THE MANNER ALLEGED, WAS PERMANENT IN
CHARACTER.  ONLY WHEN AND IF THIS ISSUE WAS RESOLVED IN FAVOR OF ONE
PARTY OR THE OTHER COULD IT BE KNOWN WHETHER THERE WAS A BASIS FOR
FINDING A MUTUAL MISTAKE OR ANY MISTAKE OF FACT IN EXECUTING THE
RELEASE.  THE COURT, HOWEVER, RESOLVED THE ISSUE OF PERMANENCE OF
INJURY AGAINST THE DEFENDANT, AT LEAST SO FAR AS THE RELEASE WAS
CONCERNED, AND ON THAT BASIS WITHDREW CONSIDERATION OF THAT ISSUE FROM
THE JURY.  EVEN IF THE ISSUE OF PERMANENCE WERE RESOLVED AGAINST THE
DEFENDANT, AN ISSUE STILL EXISTED AS TO VALIDITY OF THE RELEASE SINCE
THE DEFENDANT INSISTS THAT IT DID NOT ACT FROM MISTAKE AS TO THE NATURE
AND EXTENT OF THE INJURIES BUT ENTERED INTO THE RELEASE FOR THE SMALL
CONSIDERATION INVOLVED BECAUSE, UPON THE EVIDENCE IN ITS HANDS AT THE
TIME, NO LIABILITY WAS INDICATED.  WE THINK THE DEFENDANT WAS ENTITLED
TO ARGUE THESE CONTENTIONS TO THE JURY AND TO HAVE THEM SUBMITTED UNDER
PROPER INSTRUCTIONS. 

IT IS APPARENT THAT THE JURY ACCEPTED THE INSTRUCTIONS OF THE COURT
ON THE SUBJECT OF THE RELEASE.  RETURNING, THEY RENDERED A VERDICT "FOR
THE PLAINTIFF, AND ASSESS THE DAMAGES AT $25,240, OF WHICH THE RAILROAD
IS TO BE REIMBURSED WITH $250.00."  THE COURT, SAYING HE WANTED TO MAKE
THE RECORD RIGHT, ASKED THE JURY IF THEY MADE A NET FINDING OF $24,990,
WHICH THE FOREMAN SAID THEY DID.  UNDER THE INSTRUCTIONS THEY HAD
RECEIVED, THERE WAS LITTLE ELSE THAT THE JURY COULD DO, FOR THE COURT
HAD WITHDRAWN FROM THEM THE ISSUE AS TO THE VALIDITY OF THE RELEASE AND
CONSEQUENTLY HAD GIVEN THEM NO INSTRUCTIONS AS TO THE LAW THAT SHOULD
GOVERN THE DETERMINATION OF ANY SUCH QUESTION. 

WHILE THE TRIAL COURT ASSUMED A FINDING OF PERMANENCY AS A BASIS FOR
HIS SETTING ASIDE OF THE RELEASE, AFTER CHALLENGE TO HIS ASSUMPTION AS
TO THE NATURE OF THE INJURIES HE MADE EVERY EFFORT TO CORRECT THE
IMPRESSION, INSOFAR AS IT AFFECTED THE ISSUE OF DAMAGES.  BUT THE TRIAL
COURT DID NOT CORRECT OR IN ANY WAY ALTER HIS DETERMINATION THAT THE
RELEASE WAS NOT BINDING INSOFAR AS IT RESTED ON THE ASSUMPTION OF
PERMANENT INJURY.  THE COURT OF APPEALS WAS RIGHT IN HOLDING THAT
FAILURE TO SUBMIT THIS LATTER QUESTION TO THE JURY WAS REVERSIBLE
ERROR. 

WE ARE URGED, HOWEVER, TO DECIDE IN THIS CASE THAT THE RELEASE WAS
PROPERLY DISREGARDED BY THE TRIAL COURT UPON THE GROUND THAT THE BURDEN
SHOULD NOT BE ON ONE WHO ATTACKS A RELEASE, TO SHOW GROUNDS OF MUTUAL
MISTAKE OR FRAUD, BUT SHOULD REST UPON THE ONE WHO PLEADS SUCH A
CONTRACT, TO PROVE THE ABSENCE OF THOSE GROUNDS.  IT IS NOT CONTENDED
THAT THIS IS OR EVER HAS BEEN THE LAW; RATHER, IT IS CONTENDED THAT IT
SHOULD BE THE LAW, AT LEAST AS TO RAILROAD CASES.  THE AMICUS BRIEF*
PUTS IT THAT "WE ASK THAT THE BURDEN OF ESTABLISHING THE VALIDITY OF A
RELEASE TAKEN FROM A RAILROAD EMPLOYEE UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT BE PLACED ON THE RAILROAD, AND THAT, WHERE BUT A NOMINAL
SUM HAS BEEN PAID, WHICH IS LESS THAN OR EVEN EQUAL TO ONLY THE WAGES
LOST, THAT FACT OF ITSELF BE HELD TO BE EVIDENCE OF AT LEAST A MISTAKE
OF FACT, IF NOT PRESUMED FRAUD, SINCE THE RAILROAD POSSESSES SUPERIOR
FACILITIES FOR DETERMINING THE EXTENT OF THE INJURIES.  ... "
CONSIDERABLE RELIANCE IS PLACED UPON A CONCURRING OPINION IN THE COURT
OF APPEALS FOR THE SECOND CIRCUIT IN RICKETTS V. PENNSYLVANIA R. CO.,
153 F.2D 757, 760.  HOWEVER PERSUASIVE THE ARGUMENTS THERE STATED MAY
BE THAT INEQUALITY OF BARGAINING POWER MIGHT WELL JUSTIFY A CHANGE IN
THE LAW, THEY ARE ALSO A FRANK RECOGNITION THAT THE CONGRESS HAS MADE
NO SUCH CHANGE.  AN AMENDMENT OF THIS CHARACTER IS FOR THE CONGRESS TO
CONSIDER RATHER THAN FOR THE COURTS TO INTRODUCE.  IF THE CONGRESS WERE
TO ADOPT A POLICY DEPRIVING SETTLEMENTS OF LITIGATION OF THEIR PRIMA
FACIE VALIDITY, IT MIGHT ALSO MAKE COMPENSATION FOR INJURIES MORE
CERTAIN AND THE AMOUNTS THEREOF LESS SPECULATIVE.  BUT UNTIL THE
CONGRESS CHANGES THE STATUTORY PLAN, THE RELEASES OF RAILROAD EMPLOYEES
STAND ON THE SAME BASIS AS THE RELEASES OF OTHERS.  ONE WHO ATTACKS A
SETTLEMENT MUST BEAR THE BURDEN OF SHOWING THAT THE CONTRACT HE HAS
MADE IS TAINTED WITH INVALIDITY, EITHER BY FRAUD PRACTICED UPON HIM OR
BY A MUTUAL MISTAKE UNDER WHICH BOTH PARTIES ACTED. 

*(IN SUPPORT OF THE PETITION FOR CERTIORARI, SEE POST, P. 807.) 

THE PLAINTIFF HAS ALSO CONTENDED THAT THIS RELEASE VIOLATES SEC. 5 OF
THE FEDERAL EMPLOYERS' LIABILITY ACT WHICH PROVIDES THAT ANY CONTRACT
TO ENABLE ANY COMMON CARRIER TO "EXEMPT ITSELF FROM ANY LIABILITY
CREATED BY THIS CHAPTER, SHALL TO THAT EXTENT BE VOID."  35 STAT. 66,
45 U.S.C. SEC. 55.  IT IS OBVIOUS THAT A RELEASE IS NOT A DEVICE TO
EXEMPT FROM LIABILITY BUT IS A MEANS OF COMPROMISING A CLAIMED
LIABILITY AND TO THAT EXTENT RECOGNIZING ITS POSSIBILITY.  WHERE
CONTROVERSIES EXIST AS TO WHETHER THERE IS LIABILITY, AND IF SO FOR HOW
MUCH, CONGRESS HAS NOT SAID THAT PARTIES MAY NOT SETTLE THEIR CLAIMS
WITHOUT LITIGATION. 

SINCE WE BELIEVE THE COURT OF APPEALS WAS RIGHT IN DIRECTING A NEW
TRIAL AT WHICH THE JURY SHALL BE PERMITTED TO PASS ON ALL ISSUES OF
FACT, THE JUDGMENT IS AFFIRMED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR.
JUSTICE RUTLEDGE, BEING OF THE VIEW THAT RELEASES UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT SHOULD BE GOVERNED BY THE SAME RULE WHICH
APPLIES TO RELEASES BY SEAMEN IN ADMIRALTY (SEE THE SEPARATE OPINION OF
JUDGE JEROME FRANK, RICKETTS V. PENNSYLVANIA R. CO., 153 F.2D 757, 767
770), DISSENT FROM AN AFFIRMANCE OF THE JUDGMENT. 
..END :



















SIPUEL V. BOARD OF REGENTS, 332 U.S. 631 


NO. 369.  ARGUED JANUARY 7-8, 1948.  - DECIDED JANUARY 12, 1948.  - 199
OKLA. 36, 180 P.2D 135, REVERSED. 


A NEGRO, CONCEDEDLY QUALIFIED TO RECEIVE PROFESSIONAL LEGAL EDUCATION
OFFERED BY A STATE, CANNOT BE DENIED SUCH EDUCATION BECAUSE OF HER
COLOR.  THE STATE MUST PROVIDE SUCH EDUCATION FOR HER IN CONFORMITY
WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND
PROVIDE IT AS SOON AS IT DOES FOR APPLICANTS OF ANY OTHER GROUP.  PP.
632-633. 

SIPUEL V. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA ET AL. 

CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. 

THE SUPREME COURT OF OKLAHOMA AFFIRMED A DENIAL BY AN INFERIOR STATE
COURT OF A WRIT OF MANDAMUS TO REQUIRE ADMISSION OF A QUALIFIED NEGRO
APPLICANT TO A STATE LAW SCHOOL.  199 OKLA. 36, 180 P.2D 135.  THIS
COURT GRANTED CERTIORARI.  332 U.S. 814.  REVERSED, P. 633. 

PER CURIAM. 

ON JANUARY 14, 1946, THE PETITIONER, A NEGRO, CONCEDEDLY QUALIFIED TO
RECEIVE THE PROFESSIONAL LEGAL EDUCATION OFFERED BY THE STATE, APPLIED
FOR ADMISSION TO THE SCHOOL OF LAW OF THE UNIVERSITY OF OKLAHOMA, THE
ONLY INSTITUTION FOR LEGAL EDUCATION SUPPORTED AND MAINTAINED BY THE
TAXPAYERS OF THE STATE OF OKLAHOMA.  PETITIONER'S APPLICATION FOR
ADMISSION WAS DENIED, SOLELY BECAUSE OF HER COLOR. 

PETITIONER THEN MADE APPLICATION FOR A WRIT OF MANDAMUS IN THE
DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA.  THE WRIT OF MANDAMUS WAS
REFUSED, AND THE SUPREME COURT OF THE STATE OF OKLAHOMA AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT.  199 OKLA. 36, 180 P.2D 135.  WE
BROUGHT THE CASE HERE FOR REVIEW. 

THE PETITIONER IS ENTITLED TO SECURE LEGAL EDUCATION AFFORDED BY A
STATE INSTITUTION.  TO THIS TIME, IT HAS BEEN DENIED HER ALTHOUGH
DURING THE SAME PERIOD MANY WHITE APPLICANTS HAVE BEEN AFFORDED LEGAL
EDUCATION BY THE STATE.  THE STATE MUST PROVIDE IT FOR HER IN
CONFORMITY WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
AND PROVIDE IT AS SOON AS IT DOES FOR APPLICANTS OF ANY OTHER GROUP. 
MISSOURI EX REL. GAINES V. CANADA, 305 U.S. 337(1938). 

THE JUDGMENT OF THE SUPREME COURT OF OKLAHOMA IS REVERSED AND THE
CAUSE IS REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

THE MANDATE SHALL ISSUE FORTHWITH.  REVERSED. 
..END :
























GLOBE LIQUOR CO. V. SAN ROMAN, 332 U.S. 571 


NO. 205.  ARGUED DECEMBER 17, 1947.  - DECIDED JANUARY 5, 1948.  - 160
F.2D 800, AFFIRMED IN PART AND REVERSED IN PART. 


IN A SUIT ON A CONTRACT IN A FEDERAL DISTRICT COURT, EACH PARTY MOVED
FOR A DIRECTED VERDICT.  ONE PARTY'S MOTION WAS GRANTED AND JUDGMENT
WAS ENTERED FOR HIM.  THE OTHER PARTY FAILED TO MOVE AS AUTHORIZED BY
RULE 50(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE TO HAVE THE JUDGMENT
SET ASIDE AND JUDGMENT ENTERED IN ACCORDANCE WITH HIS OWN MOTION FOR A
DIRECTED VERDICT.  THE CIRCUIT COURT OF APPEALS REVERSED AND REMANDED
WITH DIRECTIONS TO ENTER JUDGMENT FOR THE LOSER BELOW.  HELD: 

1.  THE CIRCUIT COURT OF APPEALS ERRED IN DIRECTING ENTRY OF SUCH A
JUDGMENT.  CONE V. WEST VIRGINIA PAPER CO., 330 U.S. 212.  PP. 572
574. 

2.  SINCE THE QUESTION WHETHER THE DISTRICT COURT SHOULD HAVE
DIRECTED A VERDICT FOR PETITIONER DEPENDED UPON A NUMBER OF FACTORS,
INCLUDING AN INTERPRETATION OF THE LAW OF THE STATE WHERE THE CONTRACT
WAS MADE, A PROPER INTERPRETATION OF THE PLEADINGS, A DETERMINATION
WHETHER A DISPUTED DEPOSITION WAS ADMITTED IN EVIDENCE IN WHOLE OR IN
PART, AND THE EFFECT OF THAT EVIDENCE IF ADMITTED, THE CASE SHOULD BE
REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL.  P. 574. 

GLOBE LIQUOR CO., INC. V. SAN ROMAN ET AL., DOING BUSINESS AS
INTERNATIONAL INDUSTRIES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

THE DISTRICT COURT DIRECTED A VERDICT AND ENTERED JUDGMENT FOR
PETITIONER.  THE CIRCUIT COURT OF APPEALS REVERSED.  160 F.2D 800. 
THIS COURT GRANTED CERTIORARI.  332 U.S. 756.  AFFIRMED IN PART AND
REVERSED IN PART, P. 574. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, GLOBE LIQUOR COMPANY, INC., BROUGHT THIS ACTION IN
FEDERAL DISTRICT COURT AGAINST RESPONDENTS, FRANK AND DOROTHEA SAN
ROMAN, DOING BUSINESS UNDER THE NAME OF INTERNATIONAL INDUSTRIES.  THE
COMPLAINT CLAIMED DAMAGES FOR AN ALLEGED BREACH OF WARRANTY IN THE SALE
OF CERTAIN LIQUORS.  AN ANSWER WAS FILED; ISSUES WERE APPROPRIATELY
JOINED.  AFTER ALL THE EVIDENCE HAD BEEN INTRODUCED, EACH PARTY
REQUESTED A DIRECTED VERDICT.  THE PETITIONERS MOTION WAS GRANTED,
VERDICT WAS RETURNED IN ITS FAVOR, AND JUDGMENT WAS ACCORDINGLY
ENTERED.  THE RESPONDENTS THEN MOVED FOR A NEW TRIAL ON THE GROUND
AMONG OTHERS THAT THERE WERE MANY CONTESTED ISSUES OF FACT WHICH SHOULD
HAVE BEEN SUBMITTED TO THE JURY.  THEY DID NOT MOVE FOR JUDGMENT UNDER
RULE 50(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH PROVIDES IN
PART:  "WITHIN 10 DAYS AFTER THE RECEPTION OF A VERDICT, A PARTY WHO
HAS MOVED FOR A DIRECTED VERDICT MAY MOVE TO HAVE THE VERDICT AND ANY
JUDGMENT ENTERED THEREON SET ASIDE AND TO HAVE JUDGMENT ENTERED IN
ACCORDANCE WITH HIS MOTION FOR A DIRECTED VERDICT; ...  A MOTION FOR A
NEW TRIAL MAY BE JOINED WITH THIS MOTION, OR A NEW TRIAL MAY BE PRAYED
FOR IN THE ALTERNATIVE.  IF A VERDICT WAS RETURNED THE COURT MAY ALLOW
THE JUDGMENT TO STAND OR MAY REOPEN THE JUDGMENT AND EITHER ORDER A NEW
TRIAL OR DIRECT THE ENTRY OF JUDGMENT AS IF THE REQUESTED VERDICT HAD
BEEN DIRECTED."  ON APPEAL THE CIRCUIT COURT OF APPEALS NOT ONLY SET
ASIDE THE JUDGMENT IN FAVOR OF THE PETITIONER BUT ALSO REMANDED THE
CASE TO THE DISTRICT COURT WITH DIRECTIONS TO ENTER JUDGMENT FOR THE
RESPONDENTS.  160 F.2D 800.  WE GRANTED CERTIORARI TO CONSIDER THE
APPARENT INCONSISTENCY BETWEEN THIS LATTER ACTION OF THE CIRCUIT COURT
OF APPEALS AND OUR HOLDING IN CONE V. WEST VIRGINIA PAPER CO., 330 U.S.
212. 

IN THE CONE CASE WE HELD THAT THE CIRCUIT COURT OF APPEALS WAS
WITHOUT POWER TO ORDER THE ENTRY OF FINAL JUDGMENT FOR THE LOSER OF A
JURY VERDICT IN THE DISTRICT COURT WHERE HE HAD FAILED TO FOLLOW HIS
MOTION FOR DIRECTED VERDICT WITH A TIMELY MOTION FOR JUDGMENT AS
REQUIRED BY RULE 50(B).  WE POINTED OUT IN THE CONE CASE THAT RULE
50(B) VESTED DISTRICT JUDGES WITH A DISCRETION, UNDER THE CIRCUMSTANCES
OUTLINED IN THE RULE, TO CHOOSE BETWEEN TWO ALTERNATIVES:  (1)
REOPENING THE JUDGMENT AND GRANTING A NEW TRIAL, AND (2) ORDERING THE
ENTRY OF JUDGMENT AS IF THE LOSING PARTY'S REQUEST FOR DIRECTED VERDICT
HAD BEEN GRANTED BY THE TRIAL JUDGE. 

IT IS URGED THAT THE REASONS WHICH SUPPORTED THE CONE DECISION ARE
NOT RELEVANT HERE BECAUSE, UNLIKE THE CONE CASE, THE JURY IN THIS CASE
RETURNED ITS VERDICT UNDER SPECIFIC DIRECTIONS OF THE TRIAL JUDGE. 
HOWEVER SIGNIFICANT THIS VARIANCE BETWEEN THE TWO CASES MIGHT BE FOR
SOME PURPOSES, IT IS OF NO IMPORTANCE HERE.  BY ITS TERMS THE RULE
APPLIES EQUALLY TO CASES WHERE THE VERDICT RETURNED BY THE JURY WAS NOT
DIRECTED, AS IN THE CONE CASE, OR WAS DIRECTED, AS IN THIS CASE. 

FURTHERMORE, THE VERY CIRCUMSTANCES WHICH AROSE IN THIS CASE
EMPHASIZE THE IMPORTANCE OF HAVING THE DISTRICT COURT FIRST PASS UPON
WHETHER ITS ERROR SHOULD RESULT IN A NEW TRIAL OR IN A JUDGMENT FINALLY
ENDING THE CONTROVERSY.  FOR THERE IS HERE A DISPUTE BETWEEN THE
PARTIES WHETHER ALL OR CERTAIN PARTS OF A DEPOSITION CONTAINING
IMPORTANT EVIDENCE WERE PROPERLY INTRODUCED IN THE TRIAL COURT.  BOTH
PARTIES TOOK THE POSITION IN THE CIRCUIT COURT OF APPEALS THAT SOME,
THOUGH DIFFERENT PORTIONS OF THE DEPOSITION, WERE PROPERLY PRESENTED IN
EVIDENCE.  THE CIRCUIT COURT OF APPEALS DECIDED THE CASE ON THE
ASSUMPTION THAT NO PART OF THE DEPOSITION WAS EVER ADMITTED AS
EVIDENCE.  IN THIS COURT RESPONDENTS ARGUE THAT NO PART OF THE
DEPOSITION WAS EVER READ TO THE JURY AND THEREFORE NO PART OF IT CAN BE
CONSIDERED AS INTRODUCED IN EVIDENCE.  WHETHER THIS DEPOSITION OR ANY
PART OF IT WAS PROPERLY BEFORE THE COURT, AND EVEN IF IT WERE NOT
BEFORE THE COURT, WHETHER THE ENDS OF JUSTICE REQUIRED THAT A NEW TRIAL
BE GRANTED IN ORDER THAT THE EVIDENCE IT CONTAINED MIGHT PROPERLY BE
OFFERED, WERE QUESTIONS WHICH THE PETITIONER WAS ENTITLED UNDER RULE
50(B) TO HAVE PASSED UPON IN THE FIRST INSTANCE BY THE TRIAL COURT. 
WHAT WE SAID IN THE CONE CASE IS PECULIARLY APPROPRIATE HERE:
"DETERMINATION OF WHETHER A NEW TRIAL SHOULD BE GRANTED OR A JUDGMENT
ENTERED UNDER RULE 50(B) CALLS FOR THE JUDGMENT IN THE FIRST INSTANCE
OF THE JUDGE WHO SAW AND HEARD THE WITNESSES AND HAS THE FEEL OF THE
CASE WHICH NO APPELLATE PRINTED TRANSCRIPT CAN IMPART."  IT WAS ERROR
THEREFORE FOR THE CIRCUIT COURT OF APPEALS TO DIRECT THE DISTRICT COURT
TO ENTER JUDGMENT FOR THE RESPONDENTS. 

PETITIONER ALSO STRONGLY URGES THAT THE EVIDENCE IN THE DISTRICT
COURT WAS SUCH THAT THE TRIAL JUDGE WAS JUSTIFIED IN DIRECTING A
VERDICT IN ITS FAVOR AND THAT THE JUDGMENT RESTING ON THAT VERDICT
SHOULD BE REINSTATED.  WHETHER A VERDICT SHOULD HAVE BEEN DIRECTED,
HOWEVER, DEPENDS UPON A NUMBER OF FACTORS, INCLUDING AN INTERPRETATION
OF THE LAW OF ILLINOIS WHERE THE CONTRACT WAS MADE, A PROPER
INTERPRETATION OF THE PLEADINGS, A DETERMINATION WHETHER THE DISPUTED
DEPOSITION WAS ADMITTED IN EVIDENCE IN WHOLE OR IN PART, AND THE EFFECT
OF THAT EVIDENCE IF ADMITTED.  UNDER THESE CIRCUMSTANCES, THE JUDGMENT
OF THE CIRCUIT COURT OF APPEALS IN REVERSING AND REMANDING THE CAUSE TO
THE DISTRICT COURT IS AFFIRMED.  BUT SINCE THE RESPONDENTS MADE NO
MOTION FOR JUDGMENT UNDER RULE 50(B), IT WAS ERROR TO DIRECT THE
DISTRICT COURT TO ENTER A JUDGMENT IN THEIR FAVOR.  THE CASE SHOULD GO
BACK TO THE DISTRICT COURT FOR A NEW TRIAL.  IT IS SO ORDERED. 
..END :















SEALFON V. UNITED STATES, 332 U.S. 575 


NO. 174.  ARGUED DECEMBER 11, 1947.  - DECIDED JANUARY 5, 1948.  - 161
F.2D 481, REVERSED. 


1.  PETITIONER WAS TRIED AND ACQUITTED ON A CHARGE OF CONSPIRACY TO
DEFRAUD THE UNITED STATES BY PRESENTING FALSE INVOICES AND MAKING FALSE
REPRESENTATIONS TO A RATION BOARD TO THE EFFECT THAT CERTAIN SALES OF
SUGAR PRODUCTS WERE MADE TO EXEMPT AGENCIES.  THEREAFTER, HE WAS TRIED
AND CONVICTED FOR AIDING AND ABETTING THE UTTERING AND PUBLISHING OF
THE FALSE INVOICES INTRODUCED IN THE CONSPIRACY TRIAL.  THE CRUX OF THE
PROSECUTOR'S CASE AT THE SECOND TRIAL WAS AN ALLEGED AGREEMENT
NECESSARILY FOUND IN THE FIRST TRIAL TO BE NONEXISTENT.  HELD:  IN THE
UNIQUE CIRCUMSTANCES OF THIS CASE, THE JURY'S VERDICT IN THE CONSPIRACY
TRIAL WAS A DETERMINATION FAVORABLE TO PETITIONER OF THE FACTS
ESSENTIAL TO CONVICTION OF THE SUBSTANTIVE OFFENSE; AND RES JUDICATA
WAS A VALID DEFENSE TO THE SECOND PROSECUTION.  PP. 576-580. 

2.  THE DOCTRINE OF RES JUDICATA IS APPLICABLE TO CRIMINAL AS WELL AS
CIVIL PROCEEDINGS, AND OPERATES TO CONCLUDE THOSE MATTERS IN ISSUE
WHICH HAVE BEEN DETERMINED BY A PREVIOUS VERDICT, EVEN THOUGH THE
OFFENSES BE DIFFERENT.  P. 578. 

SEALFON V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

AFTER BEING ACQUITTED ON A CONSPIRACY CHARGE, PETITIONER WAS TRIED
AND CONVICTED ON SUBSTANTIALLY THE SAME EVIDENCE FOR VIOLATING SEC. 332
OF THE CRIMINAL CODE.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  161 F.2D
481.  THIS COURT GRANTED CERTIORARI.  332 U.S. 754.  REVERSED, P. 580. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER AN ACQUITTAL OF CONSPIRACY TO
DEFRAUD THE UNITED STATES PRECLUDES A SUBSEQUENT PROSECUTION FOR
COMMISSION OF THE SUBSTANTIVE OFFENSE, ON THE PARTICULAR FACTS HERE
INVOLVED. 

TWO INDICTMENTS WERE RETURNED AGAINST PETITIONER AND OTHERS.  ONE
CHARGED A CONSPIRACY TO DEFRAUD THE UNITED STATES OF ITS GOVERNMENTAL
FUNCTION OF CONSERVING AND RATIONING SUGAR BY PRESENTING FALSE INVOICES
AND MAKING FALSE REPRESENTATIONS TO A RATION BOARD TO THE EFFECT THAT
CERTAIN SALES OF SUGAR PRODUCTS WERE MADE TO EXEMPT AGENCIES.  FN1  THE
OTHER INDICTMENT CHARGED PETITIONER AND GREENBERG WITH THE COMMISSION
OF THE SUBSTANTIVE OFFENSE N2, VIZ., UTTERING AND PUBLISHING AS TRUE
THE FALSE INVOICES.  THE CONSPIRACY INDICTMENT WAS TRIED FIRST AND THE
FOLLOWING FACTS WERE SHOWN: 

DEFENDANT GREENBERG MANUFACTURED SYRUP AND APPROACHED SANFORD
DOCTORS, A SALESMAN FOR A BROKERAGE CONCERN, TO SELL VANILLA SYRUP. 
DOCTORS NEGOTIATED SOME SALES TO PETITIONER WHO DID A WHOLESALE
BUSINESS UNDER THE NAME OF SERO SYRUP CO. THEREAFTER GREENBERG ASKED
DOCTORS TO GET A LIST FROM PETITIONER SHOWING THE PLACES WHERE
PETITIONER MADE SALES AND TOLD HIM THAT IF ANY SALES WERE MADE TO
EXEMPT AGENCIES, GREENBERG COULD SELL TO PETITIONER IN LARGER
QUANTITIES.  DOCTORS SO INFORMED PETITIONER AND SOME TIME THEREAFTER
PETITIONER WROTE TO GREENBERG SAYING, "AT THE PRESENT TIME SOME OF OUR
SYRUPS ARE BEING SOLD AT THE BROOKLYN NAVY YARD" AND VARIOUS DEFENSE
PLANTS.  PETITIONER DID SELL SOME OF HIS SYRUP TO A VENDING COMPANY
WHICH HAD MACHINES AT THE NAVY YARD BUT IT WAS NOT VANILLA SYRUP AND NO
SALES WERE MADE TO THE NAVY YARD AS SUCH.  GREENBERG THEREAFTER
PRESENTED A SERIES OF FALSE INVOICES TO THE RATION BOARD PURPORTING TO
SHOW SALES TO PETITIONER FOR DELIVERY TO THE NAVY YARD.  PETITIONER'S
LETTER WAS NEVER SHOWN TO THE BOARD.  ON THE BASIS OF THESE INVOICES
GREENBERG RECEIVED REPLACEMENT CERTIFICATES FOR 21 MILLION POUNDS OF
SUGAR, 10 MILLION OF WHICH HE SOLD TO PETITIONER IN THE FORM OF VANILLA
SYRUP, AND WHICH WAS BY PETITIONER SOLD TO NON-EXEMPT CONSUMERS, MOSTLY
THE NATIONAL BISCUIT COMPANY.  PETITIONER AT FIRST MADE PAYMENTS TO
GREENBERG BY CHECK BUT THEREAFTER GAVE CHECKS TO HIS TRUCKER WHICH THE
LATTER CASHED, DEDUCTED HIS TRUCKING FEE, AND PAID GREENBERG. 

THE JURY RETURNED A VERDICT OF NOT GUILTY AS TO PETITIONER N3. 
THEREAFTER A TRIAL WAS HAD ON THE OTHER INDICTMENT WHICH CHARGED
PETITIONER AND GREENBERG WITH UTTERING AND PUBLISHING AS TRUE THE FALSE
INVOICES INTRODUCED IN THE CONSPIRACY TRIAL.  GREENBERG PLEADED GUILTY
AND THE TRIAL PROCEEDED AGAINST PETITIONER ON THE THEORY THAT HE AIDED
AND ABETTED GREENBERG IN THE COMMISSION OF THE SUBSTANTIVE OFFENSE. 
THE FALSE INVOICES, THE LETTER FROM PETITIONER TO GREENBERG, AND
ESSENTIALLY THE SAME TESTIMONY WERE AGAIN INTRODUCED AGAINST
PETITIONER.  IN ADDITION, IT WAS BROUGHT OUT ON CROSS-EXAMINATION THAT
PETITIONER HAD UNSUCCESSFULLY SOUGHT REPLACEMENT CERTIFICATES FROM HIS
RATION BOARD FOR SUGAR CONTAINED IN SYRUPS SOLD AT THE NAVY YARD AND
DEFENSE PLANTS.  GREENBERG GAVE TESTIMONY FROM WHICH THE JURY COULD
CONCLUDE THAT PETITIONER WAS A MOVING FACTOR IN THE SCHEME TO DEFRAUD
WHICH WAS CONSTRUCTED AROUND PETITIONER'S LETTER AND THAT HE WAS
FAMILIAR WITH GREENBERG'S INTENTION TO SUBMIT FALSE INVOICES. 
GREENBERG FURTHER TESTIFIED THAT PETITIONER RECEIVED $500,000 IN CASH
UNDER THE AGREEMENT AS A REBATE OF TWO CENTS A POUND ON ALL REPLACEMENT
SUGAR WHICH GREENBERG RECEIVED ON NAVY YARD INVOICES WHETHER OR NOT IT
WAS USED IN SYRUP SOLD TO PETITIONER.  THIS TIME THE JURY RETURNED A
VERDICT OF GUILTY AND PETITIONER WAS SENTENCED TO FIVE YEARS'
IMPRISONMENT AND FINED $12,000. 

PETITIONER MOVED TO QUASH THE SECOND INDICTMENT ON GROUNDS OF DOUBLE
JEOPARDY (ABANDONED IN THIS COURT) AND RES JUDICATA, AND ALSO OBJECTED
TO THE INTRODUCTION OF THE EVIDENCE ADDUCED AT THE FIRST TRIAL.  THE
DISTRICT JUDGE RULED AGAINST PETITIONER, AND THE COURT BELOW AFFIRMED. 
161 F.2D 481.  WE GRANTED THE PETITION FOR A WRIT OF CERTIORARI BECAUSE
OF THE IMPORTANCE OF THE QUESTION TO THE ADMINISTRATION OF THE CRIMINAL
LAW. 

IT HAS LONG BEEN RECOGNIZED THAT THE COMMISSION OF THE SUBSTANTIVE
OFFENSE AND A CONSPIRACY TO COMMIT IT ARE SEPARATE AND DISTINCT
OFFENSES.  PINKERTON V. UNITED STATES, 328 U.S. 640, 643.  THUS, WITH
SOME EXCEPTIONS, ONE MAY BE PROSECUTED FOR BOTH CRIMES.  IBID.  BUT RES
JUDICATA MAY BE A DEFENSE IN A SECOND PROSECUTION.  THAT DOCTRINE
APPLIES TO CRIMINAL AS WELL AS CIVIL PROCEEDINGS (UNITED STATES V.
OPPENHEIMER, 242 U.S. 85, 87; UNITED STATES V. DE ANGELO, 138 F.2D 466,
468: 147 A.L.R. 991; SEE FRANK V. MANGUM, 237 U.S. 309, 334) AND
OPERATES TO CONCLUDE THOSE MATTERS IN ISSUE WHICH THE VERDICT
DETERMINED THOUGH THE OFFENSES BE DIFFERENT.  SEE UNITED STATES V.
ADAMS, 281 U.S. 202, 205. 

THUS THE ONLY QUESTION IN THIS CASE IS WHETHER THE JURY'S VERDICT IN
THE CONSPIRACY TRIAL WAS A DETERMINATION FAVORABLE TO PETITIONER OF THE
FACTS ESSENTIAL TO CONVICTION OF THE SUBSTANTIVE OFFENSE.  THIS DEPENDS
UPON THE FACTS ADDUCED AT EACH TRIAL AND THE INSTRUCTIONS UNDER WHICH
THE JURY ARRIVED AT ITS VERDICT AT THE FIRST TRIAL. 

RESPONDENT ARGUES THAT THE BASIS OF THE JURY'S VERDICT CANNOT BE
KNOWN WITH CERTAINTY, THAT THE CONSPIRACY TRIAL WAS PREDICATED ON THE
THEORY THAT PETITIONER WAS A PARTY TO AN OVER-ALL CONSPIRACY ULTIMATELY
INVOLVING PETITIONER, GREENBERG, AND THE BARON CORPORATION.  FN4  THUS
IT IS SAID THAT THE VERDICT ESTABLISHED WITH CERTAINTY ONLY THAT
PETITIONER WAS NOT A MEMBER OF SUCH CONSPIRACY, AND THAT THEREFORE THE
PROSECUTION WAS NOT FORECLOSED FROM SHOWING IN THE SECOND TRIAL THAT
PETITIONER WROTE THE LETTER PURSUANT TO AN AGREEMENT WITH GREENBERG TO
DEFRAUD THE UNITED STATES.  THE THEORY IS THAT UNDER THE INSTRUCTIONS
GIVEN THE JURY MIGHT HAVE FOUND THAT PETITIONER CONSPIRED WITH
GREENBERG AND YET REFUSED TO INFER THAT HE WAS A PARTY TO THE OVER-ALL
CONSPIRACY. 

THE INSTRUCTIONS UNDER WHICH THE VERDICT WAS RENDERED, HOWEVER, MUST
BE SET IN A PRACTICAL FRAME AND VIEWED WITH AN EYE TO ALL THE
CIRCUMSTANCES OF THE PROCEEDINGS.  WE LOOK TO THEM ONLY FOR SUCH LIGHT
AS THEY SHED ON THE ISSUES DETERMINED BY THE VERDICT.  CF. DE SOLLAR V.
HANSCOME, 158 U.S. 216, 222.  PETITIONER WAS THE ONLY ONE ON TRIAL
UNDER THE CONSPIRACY INDICTMENT.  THERE WAS NO EVIDENCE TO CONNECT HIM
DIRECTLY WITH ANYONE OTHER THAN GREENBERG.  ONLY IF AN AGREEMENT WITH
AT LEAST GREENBERG WAS INFERRED BY THE JURY COULD PETITIONER BE
CONVICTED.  AND IN THE ONLY INSTRUCTION KEYED TO THE PARTICULAR FACTS
OF THE CASE THE JURY WAS TOLD THAT PETITIONER MUST BE ACQUITTED IF
THERE WAS REASONABLE DOUBT THAT HE CONSPIRED WITH GREENBERG.  NOWHERE
WAS THE JURY TOLD THAT TO RETURN A VERDICT OF GUILTY IT MUST BE FOUND
THAT PETITIONER WAS A PARTY TO A CONSPIRACY INVOLVING NOT ONLY
GREENBERG BUT THE BARON CORPORATION AS WELL.  FN5  VIEWED IN THIS
SETTING, THE VERDICT IS A DETERMINATION THAT PETITIONER, WHO CONCEDEDLY
WROTE AND SENT THE LETTER, DID NOT DO SO PURSUANT TO AN AGREEMENT WITH
GREENBERG TO DEFRAUD. 

SO INTERPRETED, THE EARLIER VERDICT PRECLUDES A LATER CONVICTION OF
THE SUBSTANTIVE OFFENSE.  THE BASIC FACTS IN EACH TRIAL WERE
IDENTICAL.  AS WE READ THE RECORDS OF THE TWO TRIALS, PETITIONER COULD
BE CONVICTED OF EITHER OFFENSE ONLY ON PROOF THAT HE WROTE THE LETTER
PURSUANT TO AN AGREEMENT WITH GREENBERG.  UNDER THE EVIDENCE
INTRODUCED, PETITIONER COULD HAVE AIDED AND ABETTED GREENBERG IN NO
OTHER WAY.  INDEED, RESPONDENT DOES NOT URGE THAT HE COULD.  THUS THE
CORE OF THE PROSECUTOR'S CASE WAS IN EACH CASE THE SAME:  THE LETTER,
AND THE CIRCUMSTANCES SURROUNDING IT AND TO BE INFERRED FROM IT, AND
THE FALSE INVOICES.  THERE WAS, OF COURSE, ADDITIONAL EVIDENCE ON THE
SECOND TRIAL ADDING DETAIL TO THE CIRCUMSTANCES LEADING UP TO THE
ALLEGED AGREEMENT, PETITIONER'S PARTICIPATION THEREIN, AND WHAT HE MAY
HAVE GOT OUT OF IT.  BUT AT MOST THIS EVIDENCE ONLY MADE IT MORE LIKELY
THAT PETITIONER HAD ENTERED INTO THE CORRUPT AGREEMENT.  IT WAS A
SECOND ATTEMPT TO PROVE THE AGREEMENT WHICH AT EACH TRIAL WAS CRUCIAL
TO THE PROSECUTION'S CASE AND WHICH WAS NECESSARILY ADJUDICATED IN THE
FORMER TRIAL TO BE NON-EXISTENT.  THAT THE PROSECUTION MAY NOT DO.
REVERSED. 

FN1  SEE SEC. 28 CRIMINAL CODE, 18 U.S.C. SEC. 72. 

FN2  SEE SEC. 332 CRIMINAL CODE, 18 U.S.C. SEC. 550. 

FN3  THE CONSPIRACY INDICTMENT ALSO NAMED LEO AND MURRAY GREENBERG,
FRESH GROWN PRESERVES CORPORATION IN WHICH THE GREENBERGS WERE OFFICERS
(ALL OF WHOM WE REFER TO SIMPLY AS GREENBERG), THE S.J. BARON
CORPORATION, THE ROYAL CROWN BOTTLING CO. OF BALTIMORE, INC., ROYAL
CROWN BOTTLING CO. OF WASHINGTON, INC., AND WILLIAM C. FRANKLIN,
PRESIDENT OF THE ROYAL CROWN COMPANIES.  GREENBERG PLEADED GUILTY,
BARON CORPORATION PLEADED NOLO CONTENDERE, AND VERDICTS WERE DIRECTED
FOR ROYAL CROWN AND FRANKLIN.  IT WAS CHARGED THAT THE BARON
CORPORATION PARTICIPATED IN THE CONSPIRACY BY WRITING A LETTER SIMILAR
TO THAT WRITTEN BY PETITIONER, DISCUSSED HEREAFTER. 

FN4  SEE NOTE 3, SUPRA. 

FN5  THAT WAS THE VIEW OF THE JUDGE WHO TRIED BOTH CASES.  AT THE
SECOND TRIAL HE CHARACTERIZED AS FOLLOWS THE CHARGE AND THE VERDICT AT
THE FIRST:  "  ...  WHAT WAS TRIED ON THE 11TH OF DECEMBER WAS A CHARGE
OF CONSPIRACY AND WHAT THE JURY BY ITS VERDICT DETERMINED WAS THAT
SEALFON HAD NOT ENTERED INTO COMMON AGREEMENT WITH THE GREENBERGS AND
THE FRESH GROWN COMPANY TO VIOLATE THE LAW." 
..END :












UNITED STATES V. DI RE, 332 U.S. 581 


NO. 61.  ARGUED OCTOBER 17, 1947.  - DECIDED JANUARY 5, 1948.  - 159
F.2D 818, AFFIRMED. 


1.  RESPONDENT AND AN INFORMER WERE IN AN AUTOMOBILE, THE DRIVER OF
WHICH WAS SUSPECTED OF SELLING COUNTERFEIT GASOLINE RATION COUPONS. 
WHEN APPROACHED BY FEDERAL AND NEW YORK STATE OFFICERS, THE INFORMER
HAD COUNTERFEIT GASOLINE RATION COUPONS IN HIS HAND AND STATED THAT HE
HAD OBTAINED THEM FROM THE DRIVER.  WITHOUT PREVIOUS INFORMATION
IMPLICATING RESPONDENT, AND WITHOUT A WARRANT, THE STATE OFFICER
ARRESTED RESPONDENT AND THE DRIVER, BUT DID NOT SEARCH THE CAR OR STATE
THE CHARGE ON WHICH RESPONDENT WAS ARRESTED.  AT THE POLICE STATION,
RESPONDENT WAS SEARCHED AND COUNTERFEIT GASOLINE RATION COUPONS WERE
FOUND ON HIS PERSON.  ON THE EVIDENCE THUS OBTAINED, RESPONDENT WAS
CONVICTED OF POSSESSION OF COUNTERFEIT GASOLINE RATION COUPONS IN
VIOLATION OF SEC. 301 OF THE SECOND WAR POWERS ACT.  HELD:  THE SEARCH
WAS UNLAWFUL AND THE CONVICTION CANNOT BE SUSTAINED.  PP. 583-595. 

(A)  ASSUMING, ARGUENDO, THAT THERE WAS REASONABLE CAUSE FOR SEARCH
OF THE AUTOMOBILE AS A VEHICLE BELIEVED TO BE CARRYING CONTRABAND, THIS
DID NOT JUSTIFY A SEARCH OF THE PERSON OF RESPONDENT.  CARROLL V.
UNITED STATES, 267 U.S. 132, DISTINGUISHED.  PP. 583-587. 

(B)  IT WAS NOT JUSTIFIED AS INCIDENT TO A LAWFUL ARREST, SINCE THE
ARREST WAS NOT LAWFUL UNDER NEW YORK LAW, WHICH IS CONTROLLING IN THIS
CASE.  PP. 587-595. 

2.  BY MERE PRESENCE IN A SUSPECTED AUTOMOBILE, A PERSON DOES NOT
LOSE IMMUNITIES FROM SEARCH OF HIS PERSON TO WHICH HE OTHERWISE WOULD
BE ENTITLED.  P. 587. 

3.  IN THE ABSENCE OF AN APPLICABLE FEDERAL STATUTE, THE LAW OF THE
STATE WHERE AN ARREST WITHOUT WARRANT TAKES PLACE DETERMINES ITS
VALIDITY.  P. 589. 

4.  NO FEDERAL STATUTE CONTROLS THE VALIDITY OF AN ARREST WITHOUT
WARRANT IN A CASE SUCH AS THIS.  PP. 590-591. 

5. IN THE CIRCUMSTANCES OF THIS CASE, THE MERE PRESENCE OF RESPONDENT
IN THE CAR DID NOT AUTHORIZE AN INFERENCE OF PARTICIPATION IN A
CONSPIRACY VIOLATIVE OF SEC. 37 OF THE CRIMINAL CODE.  PP. 593-594. 

6.  PROBABLE CAUSE FOR ARREST MAY NOT BE INFERRED FROM THE FACT THAT
THE PERSON ARRESTED DOES NOT PROTEST OR RESIST ARREST OR ASSERT HIS
INNOCENCE TO THE ARRESTING OFFICER.  IT IS THE RIGHT OF ONE PLACED
UNDER ARREST TO SUBMIT TO CUSTODY AND RESERVE HIS DEFENSES FOR THE
NEUTRAL TRIBUNALS ERECTED BY THE LAW FOR THE PURPOSE OF JUDGING HIS
CASE.  PP. 594-595. 

7.  A SEARCH IS NOT MADE LEGAL BY WHAT IT TURNS UP; IN LAW IT IS GOOD
OR BAD WHEN IT STARTS AND DOES NOT CHANGE CHARACTER FROM ITS SUCCESS. 
P. 595. 

8.  THAT LAW ENFORCEMENT MAY BE MADE MORE DIFFICULT IS NO
JUSTIFICATION FOR DISREGARDING THE CONSTITUTIONAL PROHIBITION AGAINST
UNREASONABLE SEARCHES AND SEIZURES.  P. 595. 

UNITED STATES V. DI RE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

RESPONDENT WAS CONVICTED IN A FEDERAL DISTRICT COURT OF POSSESSING
COUNTERFEIT GASOLINE RATION COUPONS CONTRARY TO SEC. 301 OF THE SECOND
WAR POWERS ACT.  THE CIRCUIT COURT OF APPEALS REVERSED.  159 F.2D 818. 
THIS COURT GRANTED CERTIORARI.  331 U.S. 800.  AFFIRMED, P. 595. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

MICHAEL DI RE WAS CONVICTED ON A CHARGE OF KNOWINGLY POSSESSING
COUNTERFEIT GASOLINE RATION COUPONS IN VIOLATION OF SEC. 301 OF THE
SECOND WAR POWERS ACT, 1942.  FN1  THE DECISIVE EVIDENCE WAS THAT
OBTAINED BY SEARCH OF HIS PERSON, AFTER HE WAS ARRESTED WITHOUT A
WARRANT OF ANY KIND.  THE CIRCUIT COURT OF APPEALS, SECOND CIRCUIT,
CONSIDERED THAT ANY QUESTION AS TO THE TIMELINESS OF HIS OBJECTION TO
THIS EVIDENCE WAS ELIMINATED BY ITS DISPOSITION ON ITS MERITS BY THE
DISTRICT COURT, AND, ONE JUDGE DISSENTING, IT HELD BOTH HIS SEARCH AND
ARREST TO HAVE BEEN ILLEGAL.  THE GOVERNMENT WAS GRANTED CERTIORARI,
FN2  RAISING NO QUESTION OTHER THAN THE CORRECTNESS OF THE HOLDING BY
THE COURT OF APPEALS THAT THE EVIDENCE WAS THE FRUIT OF AN ILLEGAL
ARREST AND SEARCH. 

AN INVESTIGATOR FOR THE OFFICE OF PRICE ADMINISTRATION WAS INFORMED
BY ONE REED THAT HE WAS TO BUY COUNTERFEIT GASOLINE RATION COUPONS FROM
A CERTAIN BUTTITTA AT A NAMED PLACE IN THE CITY OF BUFFALO, NEW YORK. 
THE INVESTIGATOR AND A DETECTIVE FROM THE BUFFALO POLICE DEPARTMENT
TRAILED BUTTITTA'S CAR AND FINALLY CAME UPON IT PARKED AT THE APPOINTED
PLACE.  THEY WENT TO THE CAR AND FOUND THE INFORMER REED, THE ONLY
OCCUPANT OF THE REAR SEAT, HOLDING IN HIS HAND TWO GASOLINE RATION
COUPONS WHICH LATER PROVED TO BE COUNTERFEIT.  REED, ON BEING ASKED,
SAID HE OBTAINED THEM FROM BUTTITTA, WHO WAS SITTING IN THE DRIVER'S
SEAT.  BESIDE BUTTITTA SAT DI RE.  ALL THREE WERE TAKEN INTO CUSTODY,
"FRISKED" TO MAKE SURE THEY HAD NO WEAPONS AND WERE THEN TAKEN TO THE
POLICE STATION.  HERE DI RE COMPLIED WITH A DIRECTION TO PUT THE
CONTENTS OF HIS POCKETS ON A TABLE.  TWO GASOLINE AND SEVERAL FUEL OIL
RATION COUPONS WERE LAID OUT.  HE SAID HE HAD FOUND THEM IN THE
STREET.  ABOUT TWO HOURS LATER, AFTER QUESTIONING, HE WAS "BOOKED" AND
THOROUGHLY SEARCHED.  ONE HUNDRED INVENTORY GASOLINE RATION COUPONS
WERE FOUND IN AN ENVELOPE CONCEALED BETWEEN HIS SHIRT AND UNDERWEAR. 
THESE, AS WELL AS THE GASOLINE COUPONS EARLIER DISCLOSED, PROVED TO BE
COUNTERFEIT.  THEIR INTRODUCTION AS EVIDENCE, OVER THE OBJECTION OF THE
DEFENDANT, WAS HELD BY THE COURT BELOW TO REQUIRE REVERSAL OF THE
CONVICTION.  FN3

I. 

THE GOVERNMENT NOW DEFENDS THE SEARCH UPON ALTERNATIVE GROUNDS:  1,
THAT SEARCH OF DI RE WAS JUSTIFIED AS INCIDENT TO A LAWFUL ARREST; 2,
THAT SEARCH OF HIS PERSON WAS JUSTIFIED AS INCIDENT TO SEARCH OF A
VEHICLE REASONABLY BELIEVED TO BE CARRYING CONTRABAND.  WE CONSIDER THE
SECOND GROUND FIRST. 

THE CLAIM IS THAT OFFICERS HAVE THE RIGHT, WITHOUT A WARRANT, TO
SEARCH ANY CAR WHICH THEY HAVE REASONABLE CAUSE TO BELIEVE CARRIES
CONTRABAND, AND INCIDENTALLY MAY SEARCH ANY OCCUPANT OF SUCH CAR WHEN
THE CONTRABAND SOUGHT IS OF A CHARACTER THAT MIGHT BE CONCEALED ON THE
PERSON.  THIS CONTENTION CALLS, FIRST, FOR A DETERMINATION AS TO
WHETHER THE CIRCUMSTANCES GAVE A RIGHT TO SEARCH THIS CAR. 

THE BELIEF THAT AN AUTOMOBILE IS MORE VULNERABLE TO SEARCH WITHOUT
WARRANT THAN IS OTHER PROPERTY HAS ITS SOURCE IN THE DECISION OF
CARROLL V. UNITED STATES, 267 U.S. 132.  THAT SEARCH WAS MADE AND ITS
VALIDITY WAS UPHELD UNDER THE SEARCH AND SEIZURE PROVISIONS ENACTED FOR
ENFORCEMENT OF THE NATIONAL PROHIBITION ACT AND OF THAT ACT ALONE. 
TRANSPORTATION OF LIQUOR IN VIOLATION OF THAT ACT SUBJECTED FIRST THE
LIQUOR, AND THEN THE VEHICLE IN WHICH IT WAS FOUND, TO SEIZURE AND
CONFISCATION, AND THE PERSON "IN CHARGE THEREOF" TO ARREST.  FN4  THE
COURT REVIEWED THE LEGISLATIVE HISTORY OF ENFORCEMENT LEGISLATION AND
CONCLUDED (AT P. 147), "THE INTENT OF CONGRESS TO MAKE A DISTINCTION
BETWEEN THE NECESSITY FOR A SEARCH WARRANT IN THE SEARCHING OF PRIVATE
DWELLINGS AND IN THAT OF AUTOMOBILES AND OTHER ROAD VEHICLES IN  FN5
THE ENFORCEMENT OF THE PROHIBITION ACT IS THUS CLEARLY ESTABLISHED BY
THE LEGISLATIVE HISTORY OF THE STANLEY AMENDMENT.  IS SUCH A
DISTINCTION CONSISTENT WITH THE FOURTH AMENDMENT?  WE THINK THAT IT IS.
THE FOURTH AMENDMENT DOES NOT DENOUNCE ALL SEARCHES OR SEIZURES, BUT
ONLY SUCH AS ARE UNREASONABLE."  THE PROGENY OF THE CARROLL CASE
LIKEWISE DEALT WITH SEARCHES AND SEIZURES UNDER THIS ACT.  HUSTY V.
UNITED STATES, 282 U.S. 694. 

OBVIOUSLY THE COURT SHOULD BE RELUCTANT TO DECIDE THAT A SEARCH THUS
AUTHORIZED BY CONGRESS WAS UNREASONABLE AND THAT THE ACT WAS THEREFORE
UNCONSTITUTIONAL.  IN VIEW OF THE STRONG PRESUMPTION OF
CONSTITUTIONALITY DUE TO AN ACT OF CONGRESS, ESPECIALLY WHEN IT TURNS
ON WHAT IS "REASONABLE," THE CARROLL DECISION FALLS SHORT OF
ESTABLISHING A DOCTRINE THAT, WITHOUT SUCH LEGISLATION, AUTOMOBILES
NONETHELESS ARE SUBJECT TO SEARCH WITHOUT WARRANT IN ENFORCEMENT OF ALL
FEDERAL STATUTES.  THIS COURT HAS NEVER YET SAID SO.  THE MOST THAT CAN
BE SAID IS THAT SOME OF THE LANGUAGE BY WHICH THE COURT JUSTIFIED THE
SEARCH AND SEIZURE LEGISLATION IN THE CARROLL CASE MIGHT BE USED TO
MAKE A DISTINCTION BETWEEN WHAT IS A REASONABLE SEARCH AS APPLIED TO AN
AUTOMOBILE AND AS APPLIED TO A RESIDENCE OR FIXED PREMISES, EVEN IN
ABSENCE OF LEGISLATION. 

WE NEED NOT DECIDE WHETHER, WITHOUT SUCH CONGRESSIONAL AUTHORIZATION
AS WAS FOUND CONTROLLING IN THE CARROLL CASE, ANY AUTOMOBILE IS SUBJECT
TO SEARCH WITHOUT WARRANT ON REASONABLE CAUSE TO BELIEVE IT CONTAINS
CONTRABAND.  IN THE CASE BEFORE US THERE APPEARS TO HAVE BEEN NO SEARCH
OF THE CAR ITSELF.  NO ONE ON THE SPOT SEEMS TO HAVE THOUGHT THERE WAS
CAUSE FOR SEARCHING IT, OR THAT IT WAS SUBJECT TO FORFEITURE.  THE
NATURE OF RATION TICKETS, THE CONTRABAND INVOLVED, WAS NOT SUCH THAT A
CAR WOULD BE NECESSARY OR ADVANTAGEOUS IN CARRYING THEM EXCEPT AS AN
INCIDENT OF CARRYING THE PERSON.  WHEN THE QUESTION OF ADMISSIBILITY OF
THIS EVIDENCE AROSE IN THE TRIAL COURT, COUNSEL FOR THE GOVERNMENT MADE
NO CLAIM THAT THERE HAD BEEN SEARCH OR CAUSE FOR SEARCH OF THE CAR.  NO
QUESTION OF FACT CONCERNING SUCH A CLAIM HAS BEEN RESOLVED BY THE TRIAL
COURT OR THE JURY. 

ASSUMING, HOWEVER, WITHOUT DECIDING, THAT THERE WAS REASONABLE CAUSE
FOR SEARCHING THE CAR, DID IT CONFER AN INCIDENTAL RIGHT TO SEARCH DI
RE?  IT IS ADMITTED BY THE GOVERNMENT THAT THERE IS NO AUTHORITY TO
THAT EFFECT, EITHER IN THE STATUTE OR IN PRECEDENT DECISION OF THIS
COURT, BUT WE ARE ASKED TO EXTEND THE ASSUMED RIGHT OF CAR SEARCH TO
INCLUDE THE PERSON OF OCCUPANTS BECAUSE "COMMON SENSE DEMANDS THAT SUCH
RIGHT EXIST IN A CASE SUCH AS THIS WHERE THE CONTRABAND SOUGHT IS A
SMALL ARTICLE WHICH COULD EASILY BE CONCEALED ON THE PERSON." 

THIS ARGUMENT POINTS UP THE DIFFERENT RELATION OF THE AUTOMOBILE TO
THE CRIME IN THE CARROLL CASE THAN IN THE ONE BEFORE US.  AN
AUTOMOBILE, AS WAS THERE POINTED OUT, WAS AN ALMOST INDISPENSABLE
INSTRUMENTALITY IN LARGE-SCALE VIOLATION OF THE NATIONAL PROHIBITION
ACT, AND THE CAR ITSELF THEREFORE WAS TREATED SOMEWHAT AS AN OFFENDER
AND BECAME CONTRABAND.  BUT EVEN THE NATIONAL PROHIBITION ACT DID NOT
DIRECT THE ARREST OF ALL OCCUPANTS BUT ONLY OF THE PERSON IN CHARGE OF
THE OFFENDING VEHICLE, THOUGH THERE IS BETTER REASON TO ASSUME THAT NO
PASSENGER IN A CAR LOADED WITH LIQUOR WOULD REMAIN INNOCENT OF
KNOWLEDGE OF THE CAR'S CARGO THAN TO ASSUME THAT A PASSENGER MUST KNOW
WHAT PIECES OF PAPER ARE CARRIED IN THE POCKETS OF THE DRIVER. 

THE GOVERNMENT SAYS IT WOULD NOT CONTEND THAT, ARMED WITH A SEARCH
WARRANT FOR A RESIDENCE ONLY, IT COULD SEARCH ALL PERSONS FOUND IN IT.
BUT AN OCCUPANT OF A HOUSE COULD BE USED TO CONCEAL THIS CONTRABAND ON
HIS PERSON QUITE AS READILY AS CAN AN OCCUPANT OF A CAR.  NECESSITY, AN
ARGUMENT ADVANCED IN SUPPORT OF THIS SEARCH, WOULD SEEM AS STRONG A
REASON FOR SEARCHING GUESTS OF A HOUSE FOR WHICH A SEARCH WARRANT HAD
ISSUED AS FOR SEARCH OF GUESTS IN A CAR FOR WHICH NONE HAD BEEN
ISSUED.  BY A PARITY OF REASONING WITH THAT ON WHICH THE GOVERNMENT
DISCLAIMS THE RIGHT TO SEARCH OCCUPANTS OF A HOUSE, WE SUPPOSE THE
GOVERNMENT WOULD NOT CONTEND THAT IF IT HAD A VALID SEARCH WARRANT FOR
THE CAR ONLY IT COULD SEARCH THE OCCUPANTS AS AN INCIDENT TO ITS
EXECUTION.  HOW THEN COULD WE SAY THAT THE RIGHT TO SEARCH A CAR
WITHOUT A WARRANT CONFERS GREATER LATITUDE TO SEARCH OCCUPANTS THAN A
SEARCH BY WARRANT WOULD PERMIT? 

WE SEE NO GROUND FOR EXPANDING THE RULING IN THE CARROLL CASE TO
JUSTIFY THIS ARREST AND SEARCH AS INCIDENT TO THE SEARCH OF A CAR.  WE
ARE NOT CONVINCED THAT A PERSON, BY MERE PRESENCE IN A SUSPECTED CAR,
LOSES IMMUNITIES FROM SEARCH OF HIS PERSON TO WHICH HE WOULD OTHERWISE
BE ENTITLED. 

         II. 

THE OTHER GROUND ON WHICH THE GOVERNMENT DEFENDED THE SEARCH OF DI
RE, AND THE ONLY ONE ON WHICH IT RELIED AT THE TRIAL, IS THAT THE
OFFICERS JUSTIFIABLY ARRESTED HIM AND THAT THIS CONFERRED A RIGHT TO
SEARCH HIS PERSON.  IF HE WAS LAWFULLY ARRESTED, IT IS NOT QUESTIONED
THAT THE ENSUING SEARCH WAS PERMISSIBLE.  HENCE WE MUST EXAMINE THE
CIRCUMSTANCES AND THE LAW OF ARREST. 

SOME MEMBERS OF THIS COURT REST THEIR CONCLUSION THAT THE ARREST WAS
INVALID ON SEC. 180 OF THE NEW YORK CODE OF CRIMINAL PROCEDURE WHICH
REQUIRES AN OFFICER MAKING AN ARREST WITHOUT A WARRANT TO INFORM THE
SUSPECT OF THE CAUSE OF ARREST, EXCEPT WHEN IT IS MADE DURING
COMMISSION OF THE CRIME OR WHEN IN PURSUIT AFTER AN ESCAPE.  FN6  THIS
QUESTION WAS FIRST RAISED FROM THE BENCH DURING ARGUMENT IN THIS
COURT.  DI RE DID NOT ASSERT THIS GROUND OF INVALIDITY AT THE TRIAL. 
HAD HE DONE SO THE GOVERNMENT MIGHT HAVE MET IT WITH PROOF OF
CIRCUMSTANCES WHICH IN THEMSELVES WOULD SHOW THAT DI RE HAD BEEN
EFFECTIVELY INFORMED, EVEN IF THE CIRCUMSTANCES FELL SHORT OF
ESTABLISHING THE STATUTORY EXCEPTION.  THE PROCEEDINGS BELOW DID NOT
DEVELOP THE FACTS CONCERNING DI RE'S ARREST IN CONNECTION WITH THIS
REQUIREMENT.  INASMUCH AS THE ISSUE WOULD LEAD TO EXPLORATION OF THE
LAW AS TO WAIVER WHEN THE DEFENSE WAS NOT RAISED IN EITHER COURT BELOW,
OR INDEED BY THE PETITION HERE, AND AS TO APPLICABILITY OF THE STATUTE
IF, AS THE GOVERNMENT CONTENDS, LACK OF EXPRESS DECLARATION WAS
UNNECESSARY BECAUSE CIRCUMSTANCES SUPPLIED THE REQUIRED INFORMATION, WE
DO NOT UNDERTAKE TO DETERMINE ON THIS RECORD WHETHER DI RE'S ARREST
SATISFIED THIS PROVISION OF THE NEW YORK LAW. 

THE ARREST WAS CHALLENGED IN THE COURTS BELOW ON THE GROUND THAT IT
VIOLATED ANOTHER PROVISION OF NEW YORK LAW WHICH WAS CONSIDERED TO BE
CONTROLLING ON THE SUBJECT.  THE COURT BELOW ASSUMED THAT THE ARRESTING
OFFICER, A STATE OFFICER, DERIVED HIS AUTHORITY TO ARREST BUTTITTA AND
REED, ALTHOUGH IT WAS FOR A FEDERAL CRIME, FROM SEC. 177 OF THE NEW
YORK CODE OF CRIMINAL PROCEDURE, AND ALSO CONSIDERED THE LEGALITY OF
THE ARREST OF DI RE UNDER PARAGRAPH 3 THEREOF.  FN7  IN THIS COURT THE
GOVERNMENT ORIGINALLY ARGUED THAT THE ARREST WAS AUTHORIZED UNDER BOTH
PARAGRAPHS 2 AND 3 OF THE STATE LAW, BUT IN A SUPPLEMENTAL BRIEF THE
GOVERNMENT WITHDRAWS THE SUGGESTION "THAT THE ARREST OF RESPONDENT CAN
BE JUSTIFIED UNDER SUBSECTION 2 OF SECTION 177 OF THE NEW YORK CODE OF
CRIMINAL PROCEDURE."  INSTEAD, IT NOW URGES THAT "THE VALIDITY OF AN
ARREST WITHOUT A WARRANT FOR A FEDERAL CRIME IS A MATTER OF FEDERAL LAW
TO BE DETERMINED BY A UNIFORM RULE APPLICABLE IN ALL FEDERAL COURTS." 

WE BELIEVE, HOWEVER, THAT IN ABSENCE OF AN APPLICABLE FEDERAL STATUTE
THE LAW OF THE STATE WHERE AN ARREST WITHOUT WARRANT TAKES PLACE
DETERMINES ITS VALIDITY.  BY ONE OF THE EARLIEST ACTS OF CONGRESS, THE
PRINCIPLE OF WHICH IS STILL RETAINED, THE ARREST BY JUDICIAL PROCESS
FOR A FEDERAL OFFENSE MUST BE "AGREEABLY TO THE USUAL MODE OF PROCESS
AGAINST OFFENDERS IN SUCH STATE."  FN8 THERE IS NO REASON TO BELIEVE
THAT STATE LAW IS NOT AN EQUALLY APPROPRIATE STANDARD BY WHICH TO TEST
ARRESTS WITHOUT WARRANT, EXCEPT IN THOSE CASES WHERE CONGRESS HAS
ENACTED A FEDERAL RULE.  INDEED THE ENACTMENT OF A FEDERAL RULE IN SOME
SPECIFIC CASES SEEMS TO IMPLY THE ABSENCE OF ANY GENERAL FEDERAL LAW OF
ARREST. 

TURNING TO THE ACTS OF CONGRESS TO FIND A RULE FOR ARREST WITHOUT
WARRANT, WE FIND NONE WHICH CONTROLS SUCH A CASE AS WE HAVE HERE AND
NONE THAT PURPORTS TO CREATE A GENERAL RULE ON THE SUBJECT.  IF WE WERE
TO TRY TO FIND OR FASHION A FEDERAL RULE FOR ARREST WITHOUT WARRANT, IT
APPEARS THAT THE FEDERAL LEGISLATIVE MATERIALS ARE MEAGER, INCONSISTENT
AND INCONCLUSIVE.  FEDERAL BUREAU OF INVESTIGATION OFFICERS ARE
AUTHORIZED ONLY "TO MAKE ARRESTS WITHOUT WARRANT FOR FELONIES WHICH
HAVE BEEN COMMITTED AND WHICH ARE COGNIZABLE UNDER THE LAWS OF THE
UNITED STATES, IN CASES WHERE THE PERSON MAKING THE ARREST HAS
REASONABLE GROUNDS TO BELIEVE THAT THE PERSON SO ARRESTED IS GUILTY OF
SUCH FELONY AND WHERE THERE IS A LIKELIHOOD OF THE PERSON ESCAPING
BEFORE A WARRANT CAN BE OBTAINED FOR HIS ARREST, BUT THE PERSON
ARRESTED SHALL BE IMMEDIATELY TAKEN BEFORE A COMMITTING OFFICER."  FN9
HOWEVER, MARSHALS AND THEIR DEPUTIES "SHALL HAVE THE POWER TO MAKE
ARRESTS WITHOUT WARRANT FOR ANY OFFENSE AGAINST THE LAWS OF THE UNITED
STATES COMMITTED IN THEIR PRESENCE OR FOR ANY FELONY COGNIZABLE UNDER
THE LAWS OF THE UNITED STATES IN CASES WHERE SUCH FELONY HAS IN FACT
BEEN OR IS BEING COMMITTED AND THEY HAVE REASONABLE GROUNDS TO BELIEVE
THAT THE PERSON TO BE ARRESTED HAS COMMITTED OR IS COMMITTING IT,"
FN10  AND THEY ARE ALSO GIVEN THE SAME POWERS AS SHERIFFS IN THE SAME
STATE MAY HAVE, BY LAW, IN EXECUTING THE LAWS THEREOF.  FN11    IN
DENOUNCING UNLAWFUL SEARCH BY FEDERAL OFFICERS AS A MISDEMEANOR,
CONGRESS PROVIDED THAT IT SHOULD NOT APPLY TO ONE "ARRESTING OR
ATTEMPTING TO ARREST ANY PERSON COMMITTING OR ATTEMPTING TO COMMIT AN
OFFENSE IN THE PRESENCE OF SUCH OFFICER, AGENT, OR EMPLOYEE, OR WHO HAS
COMMITTED, OR WHO IS SUSPECTED ON REASONABLE GROUNDS OF HAVING
COMMITTED, A FELONY."  FN12  THUS THE LEGISLATIVE SOURCES, WHILE
YIELDING SOME COMMON PROVISIONS, ALSO CONTAIN MANY INCONSISTENCIES.  NO
ACT OF CONGRESS LAYS DOWN A GENERAL FEDERAL RULE FOR ARREST WITHOUT
WARRANT FOR FEDERAL OFFENSES.  NONE PURPORTS TO SUPERSEDE STATE LAW. 
AND NONE APPLIES TO THIS ARREST WHICH, WHILE FOR A FEDERAL OFFENSE, WAS
MADE BY A STATE OFFICER ACCOMPANIED BY FEDERAL OFFICERS WHO HAD NO
POWER OF ARREST.  THEREFORE THE NEW YORK STATUTE PROVIDES THE STANDARD
BY WHICH THIS ARREST MUST STAND OR FALL. 

SINCE, UNDER THAT LAW, ANY VALID ARREST OF DI RE, IF FOR A
MISDEMEANOR MUST BE FOR ONE COMMITTED IN THE ARRESTING OFFICER'S
PRESENCE, AND IF FOR A FELONY MUST BE FOR ONE WHICH THE OFFICER HAD
REASONABLE GROUNDS TO BELIEVE THE SUSPECT HAD COMMITTED, WE SEEK TO
LEARN FOR WHAT OFFENSE THIS MAN WAS TAKEN INTO CUSTODY.  THE ARRESTING
OFFICER TESTIFIED THAT HE DID NOT TELL DI RE WHAT HE WAS BEING ARRESTED
FOR.  AFTER HE WAS TAKEN TO THE STATION HE WAS "BOOKED," BUT THE RECORD
DOES NOT SHOW UPON WHAT CHARGE.  HE WAS LATER INDICTED FOR THE
MISDEMEANOR OF KNOWINGLY POSSESSING COUNTERFEIT GASOLINE RATION COUPONS
IN VIOLATION OF RATION ORDER NO. 5(C) OF THE OFFICE OF PRICE
ADMINISTRATOR.  BUT ON APPEAL THE GOVERNMENT SUGGESTED THE ARREST MAY
BE DEFENDED AS ONE FOR A FELONY BECAUSE PROBABLE GROUNDS EXISTED FOR
BELIEVING HIM GUILTY OF THE FELONY OF CONSPIRACY UNDER SEC. 37 OF THE
CRIMINAL CODE,  FN13  AND IN THIS COURT FOR THE FIRST TIME IT SUGGESTS
THAT THERE WERE GROUNDS FOR ARREST ON A CHARGE OF POSSESSING A KNOWN
COUNTERFEIT WRITING WITH INTENT TO UTTER IT AS TRUE FOR THE PURPOSE OF
DEFRAUDING THE UNITED STATES, A FELONY UNDER SEC. 28 OF THE CRIMINAL
CODE.  FN14 

ASSUMING, WITHOUT DECIDING, THAT AN ARREST WITHOUT A WARRANT ON A
CHARGE NOT COMMUNICATED AT THE TIME MAY LATER BE JUSTIFIED IF THE
ARRESTING OFFICER'S KNOWLEDGE GAVE PROBABLE GROUNDS TO BELIEVE ANY
FELONY FOUND IN THE STATUTE BOOKS HAD BEEN COMMITTED, WE ARE BROUGHT TO
THE INQUIRY WHETHER THE CIRCUMSTANCES AT THAT TIME AFFORDED SUCH
GROUNDS. 

THE GOVERNMENT NOW CONCEDES THAT THE ONLY PERSON WHO COMMITTED A
POSSIBLE MISDEMEANOR IN THE OPEN PRESENCE OF THE OFFICER WAS REED, THE
GOVERNMENT INFORMER WHO WAS FOUND VISIBLY POSSESSING THE COUPONS.  OF
COURSE, AS TO BUTTITTA THEY HAD PREVIOUS INFORMATION THAT HE WAS TO
SELL SUCH COUPONS TO REED, AND REED GAVE INFORMATION THAT HE HAD DONE
SO.  BUT THE OFFICER HAD NO SUCH INFORMATION AS TO DI RE.  ALL THEY HAD
WAS HIS PRESENCE, AND IF HIS PRESENCE WAS NOT ENOUGH TO MAKE A CASE FOR
ARREST FOR A MISDEMEANOR, IT IS HARD TO SEE HOW IT WAS ENOUGH FOR THE
FELONY OF VIOLATING SEC. 28 OF THE CRIMINAL CODE. 

THE RELEVANT DIFFERENCE BETWEEN RATION ORDER 5(C) AND SEC. 28 OF THE
CRIMINAL CODE IS THAT THE FORMER DECLARES MERE POSSESSION OF A
COUNTERFEIT COUPON AN OFFENSE, WHILE THE LATTER DEFINES A FELONY WHICH
CONSISTS NOT MERELY OF POSSESSION BUT ALSO OF KNOWLEDGE OF THE
INSTRUMENT'S COUNTERFEIT CHARACTER, AND ALSO OF INTENT TO UTTER IT AS
TRUE.  IT IS ADMITTED THAT AT THE TIME OF THE ARREST THE OFFICERS HAD
NO INFORMATION IMPLICATING DI RE AND NO INFORMATION POINTING TO
POSSESSION OF ANY COUPONS, UNLESS HIS PRESENCE IN THE CAR WARRANTED
THAT INFERENCE.  OF COURSE THEY HAD NO INFORMATION HINTING FURTHER AT
THE KNOWLEDGE AND INTENT REQUIRED AS ELEMENTS OF THE FELONY UNDER THE
STATUTE. 

            III. 

THE GOVERNMENT'S DEFENSE OF THE ARREST RELIES MOST HEAVILY ON THE
CONSPIRACY GROUND.  IN VIEW OF REED'S CHARACTER AS AN INFORMER, IT IS
QUESTIONABLE WHETHER A CONSPIRACY IS SHOWN.  BUT IF THE PRESENCE OF DI
RE IN THE CAR DID NOT AUTHORIZE AN INFERENCE OF PARTICIPATION IN THE
BUTTITTA-REED SALE, IT FAILS TO SUPPORT THE INFERENCE OF ANY FELONY AT
ALL. 

THERE IS NO EVIDENCE THAT IT IS A FACT OR THAT THE OFFICERS HAD ANY
INFORMATION INDICATING THAT DI RE WAS IN THE CAR WHEN REED OBTAINED
RATION COUPONS FROM BUTTITTA, AND NONE THAT HE HEARD OR TOOK PART IN
ANY CONVERSATION ON THE SUBJECT.  REED, THE INFORMER, CERTAINLY KNEW IT
IF ANY PART OF HIS TRANSACTION WAS IN DI RE'S PRESENCE.  BUT HE WAS NOT
CALLED AS A WITNESS BY THE GOVERNMENT, NOR SHOWN TO BE UNAVAILABLE, AND
WE MUST ASSUME THAT HIS TESTIMONY WOULD NOT HAVE BEEN HELPFUL IN
BRINGING GUILTY KNOWLEDGE HOME TO DI RE. 

AN INFERENCE OF PARTICIPATION IN CONSPIRACY DOES NOT SEEM TO BE
SUSTAINED BY THE FACTS PECULIAR TO THIS CASE.  THE ARGUMENT THAT ONE
WHO "ACCOMPANIES A CRIMINAL TO A CRIME RENDEZVOUS" CANNOT BE ASSUMED TO
BE A BYSTANDER, FORCEFUL ENOUGH IN SOME CIRCUMSTANCES, IS FARFETCHED
WHEN THE MEETING IS NOT SECRETIVE OR IN A SUSPICIOUS HIDE-OUT BUT IN
BROAD DAYLIGHT, IN PLAIN SIGHT OF PASSERS-BY, IN A PUBLIC STREET OF A
LARGE CITY, AND WHERE THE ALLEGED SUBSTANTIVE CRIME IS ONE WHICH DOES
NOT NECESSARILY INVOLVE ANY ACT VISIBLY CRIMINAL.  IF DI RE HAD
WITNESSED THE PASSING OF PAPERS FROM HAND TO HAND, IT WOULD NOT FOLLOW
THAT HE KNEW THEY WERE RATION COUPONS, AND IF HE SAW THAT THEY WERE
RATION COUPONS, IT WOULD NOT FOLLOW THAT HE WOULD KNOW THEM TO BE
COUNTERFEIT.  INDEED IT APPEARED AT THE TRIAL TO REQUIRE AN EXPERT TO
ESTABLISH THAT FACT.  PRESUMPTIONS OF GUILT ARE NOT LIGHTLY TO BE
INDULGED FROM MERE MEETINGS. 

MOREOVER, WHATEVER SUSPICION MIGHT RESULT FROM DI RE'S MERE PRESENCE
SEEMS DIMINISHED, IF NOT DESTROYED, WHEN REED, PRESENT AS THE INFORMER,
POINTED OUT BUTTITTA, AND BUTTITTA ONLY, AS A GUILTY PARTY.  NO REASON
APPEARS TO DOUBT THAT REED WILLINGLY WOULD INVOLVE DI RE IF THE NATURE
OF THE TRANSACTION PERMITTED.  YET HE DID NOT INCRIMINATE DI RE.  ANY
INFERENCE THAT EVERYONE ON THE SCENE OF A CRIME IS A PARTY TO IT MUST
DISAPPEAR IF THE GOVERNMENT INFORMER SINGLES OUT THE GUILTY PERSON. 

                            IV. 

THE GOVERNMENT ALSO MAKES, AND SEVERAL TIMES REPEATS, AN ARGUMENT TO
THE EFFECT THAT THE OFFICERS COULD INFER PROBABLE CAUSE FROM THE FACT
THAT DI RE DID NOT PROTEST HIS ARREST, DID NOT AT ONCE ASSERT HIS
INNOCENCE, AND SILENTLY ACCEPTED THE COMMAND TO GO ALONG TO THE POLICE
STATION.  ONE HAS AN UNDOUBTED RIGHT TO RESIST AN UNLAWFUL ARREST, AND
COURTS WILL UPHOLD THE RIGHT OF RESISTANCE IN PROPER CASES.  BUT COURTS
WILL HARDLY PENALIZE FAILURE TO DISPLAY A SPIRIT OF RESISTANCE OR TO
HOLD FUTILE DEBATES ON LEGAL ISSUES IN THE PUBLIC HIGHWAY WITH AN
OFFICER OF THE LAW.  A LAYMAN MAY NOT FIND IT EXPEDIENT TO HAZARD
RESISTANCE ON HIS OWN JUDGMENT OF THE LAW AT A TIME WHEN HE CANNOT KNOW
WHAT INFORMATION, CORRECT OR INCORRECT, THE OFFICERS MAY BE ACTING
UPON.  IT IS LIKELY TO END IN FRUITLESS AND UNSEEMLY CONTROVERSY IN A
PUBLIC STREET, IF NOT IN AN ADDITIONAL CHARGE OF RESISTING AN OFFICER. 
IF THE OFFICERS BELIEVED THEY HAD PROBABLE CAUSE FOR HIS ARREST ON A
FELONY CHARGE, IT IS NOT TO BE SUPPOSED THAT THEY WOULD HAVE BEEN
DISSUADED BY HIS PROFESSION OF INNOCENCE. 

IT IS THE RIGHT OF ONE PLACED UNDER ARREST TO SUBMIT TO CUSTODY AND
TO RESERVE HIS DEFENSES FOR THE NEUTRAL TRIBUNALS ERECTED BY THE LAW
FOR THE PURPOSE OF JUDGING HIS CASE.  AN INFERENCE OF PROBABLE CAUSE
FROM A FAILURE TO ENGAGE IN DISCUSSION OF THE MERITS OF THE CHARGE WITH
ARRESTING OFFICERS IS UNWARRANTED.  PROBABLE CAUSE CANNOT BE FOUND FROM
SUBMISSIVENESS, AND THE PRESUMPTION OF INNOCENCE IS NOT LOST OR
IMPAIRED BY NEGLECT TO ARGUE WITH A POLICEMAN.  IT IS THE OFFICER'S
RESPONSIBILITY TO KNOW WHAT HE IS ARRESTING FOR, AND WHY, AND ONE IN
THE UNHAPPY PLIGHT OF BEING TAKEN INTO CUSTODY IS NOT REQUIRED TO TEST
THE LEGALITY OF THE ARREST BEFORE THE OFFICER WHO IS MAKING IT. 

THE GOVERNMENT'S LAST RESORT IN SUPPORT OF THE ARREST IS TO REASON
FROM THE FRUITS OF THE SEARCH TO THE CONCLUSION THAT THE OFFICER'S
KNOWLEDGE AT THE TIME GAVE THEM GROUNDS FOR IT.  WE HAVE HAD FREQUENT
OCCASION TO POINT OUT THAT A SEARCH IS NOT TO BE MADE LEGAL BY WHAT IT
TURNS UP.  FN15 IN LAW IT IS GOOD OR BAD WHEN IT STARTS AND DOES NOT
CHANGE CHARACTER FROM ITS SUCCESS. 

                      V. 

WE MEET IN THIS CASE, AS IN MANY, THE APPEAL TO NECESSITY.  IT IS
SAID THAT IF SUCH ARRESTS AND SEARCHES CANNOT BE MADE, LAW ENFORCEMENT
WILL BE MORE DIFFICULT AND UNCERTAIN.  BUT THE FOREFATHERS, AFTER
CONSULTING THE LESSONS OF HISTORY, DESIGNED OUR CONSTITUTION TO PLACE
OBSTACLES IN THE WAY OF A TOO PERMEATING POLICE SURVEILLANCE, WHICH
THEY SEEMED TO THINK WAS A GREATER DANGER TO A FREE PEOPLE THAN THE
ESCAPE OF SOME CRIMINALS FROM PUNISHMENT.  TAKING THE LAW AS IT HAS
BEEN GIVEN TO US, THIS ARREST AND SEARCH WERE BEYOND THE LAWFUL
AUTHORITY OF THOSE WHO EXECUTED THEM.  THE CONVICTION BASED ON EVIDENCE
SO OBTAINED CANNOT STAND.  AFFIRMED. 

FN1  50 U.S.C. APP. (SUPP. V, 1946), SEC. 633. 

FN2  331 U.S. 800. 

FN3  159 F.2D 818. 

FN4  SECTION 26, TITLE II OF THE NATIONAL PROHIBITION ACT PROVIDED IN
PART AS FOLLOWS:  "WHEN ... ANY OFFICER OF THE LAW SHALL DISCOVER ANY
PERSON IN THE ACT OF TRANSPORTING IN VIOLATION OF THE LAW, INTOXICATING
LIQUORS IN ANY WAGON, BUGGY, AUTOMOBILE, WATER OR AIR CRAFT, OR OTHER
VEHICLE, IT SHALL BE HIS DUTY TO SEIZE ANY AND ALL INTOXICATING LIQUORS
FOUND THEREIN BEING TRANSPORTED CONTRARY TO LAW.  WHENEVER INTOXICATING
LIQUORS TRANSPORTED OR POSSESSED ILLEGALLY SHALL BE SEIZED BY AN
OFFICER HE SHALL TAKE POSSESSION OF THE VEHICLE AND TEAM OR AUTOMOBILE,
BOAT, AIR OR WATER CRAFT, OR ANY OTHER CONVEYANCE, AND SHALL ARREST ANY
PERSON IN CHARGE THEREOF.  ...  "  IN THE CARROLL CASE IT WAS SAID (267
U.S. AT 155) THAT THIS SECTION WAS INTENDED "TO REACH AND DESTROY THE
FORBIDDEN LIQUOR IN TRANSPORTATION AND THE PROVISIONS FOR FORFEITURE OF
THE VEHICLE AND THE ARREST OF THE TRANSPORTER WERE INCIDENTAL"; AND
(267 U.S. AT 158) "THE RIGHT TO SEARCH AND THE VALIDITY OF THE SEIZURE
ARE NOT DEPENDENT ON THE RIGHT TO ARREST.  THEY ARE DEPENDENT ON THE
REASONABLE CAUSE THE SEIZING OFFICER HAS FOR BELIEF THAT THE CONTENTS
OF THE AUTOMOBILE OFFEND AGAINST THE LAW.  THE SEIZURE IN SUCH A
PROCEEDING COMES BEFORE THE ARREST AS SECTION 26 INDICATES  ...  " 

FN5  THIS WORD "IN" IS ERRONEOUSLY PRINTED "IS" IN THE CASE AS
REPORTED. 

FN6  SECTION 180 PROVIDES: 

"WHEN ARRESTING A PERSON WITHOUT A WARRANT THE OFFICER MUST INFORM
HIM OF THE AUTHORITY OF THE OFFICER AND THE CAUSE OF THE ARREST, EXCEPT
WHEN THE PERSON ARRESTED IS IN THE ACTUAL COMMISSION OF A CRIME, OR IS
PURSUED IMMEDIATELY AFTER AN ESCAPE." 

SEE ALSO PEOPLE V. MARENDI, 213 N.Y. 600, 610, 107 N.E. 1058, 1061. 
CF. JOHN BAD ELK V. UNITED STATES, 177 U.S. 529; CHRISTIE V.
LEACHINSKY, (1947) 1 ALL ENG. 567. 

FN7  SECTION 177 OF THE NEW YORK CODE OF CRIMINAL PROCEDURE
PROVIDES: 

"A PEACE OFFICER MAY, WITHOUT A WARRANT, ARREST A PERSON, 

"1.  FOR A CRIME, COMMITTED OR ATTEMPTED IN HIS PRESENCE; 

"2.  WHEN THE PERSON ARRESTED HAS COMMITTED A FELONY, ALTHOUGH NOT IN
HIS PRESENCE; 

"3.  WHEN A FELONY HAS IN FACT BEEN COMMITTED, AND HE HAS REASONABLE
CAUSE FOR BELIEVING THE PERSON TO BE ARRESTED TO HAVE COMMITTED IT." 

FN8  THE ACT OF SEPTEMBER 24, 1789(CH. 20, SEC. 33, 1 STAT. 91),
CONCERNING ARREST WITH WARRANT, PROVIDED:  "THAT FOR ANY CRIME OR
OFFENCE AGAINST THE UNITED STATES, THE OFFENDER MAY, BY ANY JUSTICE OR
JUDGE OF THE UNITED STATES, OR BY ANY JUSTICE OF THE PEACE, OR OTHER
MAGISTRATE OF ANY OF THE UNITED STATES WHERE HE MAY BE FOUND AGREEABLY
TO THE USUAL MODE OF PROCESS AGAINST OFFENDERS IN SUCH STATE, AND AT
THE EXPENSE OF THE UNITED STATES, BE ARRESTED, AND IMPRISONED OR
BAILED, AS THE CASE MAY BE, FOR TRIAL BEFORE SUCH COURT OF THE UNITED
STATES AS BY THIS ACT HAS COGNIZANCE OF THE OFFENCE."  THIS PROVISION
HAS REMAINED SUBSTANTIALLY SIMILAR TO THIS DAY.  18 U.S.C. SEC. 591. 
SEE ALSO 1 OPS.  ATTY.  GEN. 85, 86. 

FN9  48 STAT. 1008, 49 STAT. 77, 5 U.S.C. SEC. 300(A). 

FN10  49 STAT. 378, 28 U.S.C. SEC. 504(A). 

FN11 1 STAT. 425, 12 STAT. 282, 28 U.S.C. SEC. 504. 

FN12  49 STAT. 877, 18 U.S.C. SEC. 53(A). 

FN13  18 U.S.C. SEC. 88. 

FN14  18 U.S.C. SEC. 72. 

FN15  SEE, FOR EXAMPLE, BYARS V. UNITED STATES, 273 U.S. 28, 29. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK DISSENT. 
..END :

















JONES V. LIBERTY GLASS CO., 332 U.S. 524 


NO. 71.  ARGUED NOVEMBER 17-18, 1947.  - DECIDED DECEMBER 22, 1947.  -
159 F.2D 316, REVERSED. 


1.  UNDER SEC. 322(B)(1) OF THE INTERNAL REVENUE CODE, A CLAIM FOR
REFUND OF FEDERAL INCOME TAX, WHETHER ARISING OUT OF AN INCOME TAX
"ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED" OR NOT, MUST BE FILED
WITHIN THREE YEARS FROM THE TIME THE RETURN WAS FILED OR WITHIN TWO
YEARS FROM THE TIME THE TAX WAS PAID.  THE FOUR-YEAR PERIOD PRESCRIBED
BY SEC. 3313 IS INAPPLICABLE TO SUCH A CLAIM.  PP. 525-526, 534-535. 

2.  THE WORD "OVERPAYMENT" IN SEC. 322 OF THE INTERNAL REVENUE CODE
IS TO BE READ IN ITS USUAL SENSE, AS MEANING ANY PAYMENT IN EXCESS OF
THAT WHICH IS PROPERLY DUE, WHETHER TRACEABLE TO AN ERROR IN
MATHEMATICS OR IN JUDGMENT OR IN INTERPRETATION OF FACTS OR LAW, AND
WHETHER THE ERROR BE COMMITTED BY THE TAXPAYER OR THE REVENUE AGENTS. 
P. 531. 

3.  WHERE THE LANGUAGE AND PURPOSE OF AN ACT OF CONGRESS ARE CLEAR,
LEGISLATIVE ACQUIESCENCE IN A RATHER RECENT CONTRARY INTERPRETATION BY
LOWER FEDERAL COURTS IS NOT TO BE ASSUMED.  PP. 533-534. 

JONES, COLLECTOR OF INTERNAL REVENUE, V. LIBERTY GLASS CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

THE DISTRICT COURT GAVE JUDGMENT FOR RESPONDENT IN A SUIT FOR A
REFUND OF FEDERAL INCOME TAXES.  66 F.SUPP.  254.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  159 F.2D 316.  THIS COURT GRANTED CERTIORARI.  331
U.S. 800.  REVERSED, P. 535. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

OUR CONCERN HERE IS WITH THE PERIOD OF LIMITATIONS APPLICABLE TO THE
FILING OF CLAIMS FOR REFUND OF FEDERAL INCOME TAXES.  MUST SUCH CLAIMS
BE FILED WITHIN TWO YEARS AFTER PAYMENT OF THE TAX, AS PROVIDED BY SEC.
322(B)(1) OF THE INTERNAL REVENUE CODE, OR WITHIN FOUR YEARS AFTER
PAYMENT OF THE TAX, AS PROVIDED BY SEC. 3313 OF THE CODE? 

THE CORPORATE TAXPAYER, RESPONDENT HEREIN, FILED ITS INCOME AND
EXCESS-PROFITS TAX RETURN FOR 1938, A RETURN WHICH INDICATED A TAX
LIABILITY OF $1,193.25.  THIS SUM, PLUS A SMALL ADDITIONAL ASSESSMENT,
WAS PAID IN 1939.  A REVENUE AGENT LATER INVESTIGATED THE TAXPAYER'S
LIABILITY AGAIN, RESULTING IN AN ADDITIONAL ASSESSMENT OF $6,640.81. 
PAYMENT OF THIS AMOUNT WAS MADE ON MARCH 8, 1941.  OVER THREE YEARS
LATER, ON MARCH 30, 1944, THE TAXPAYER FILED A CLAIM FOR REFUND OF
$1,053.49.  IT WAS STATED THAT THE REVENUE AGENT ERRONEOUSLY HAD FAILED
TO ALLOW CERTAIN CREDITS FOR SUMS USED BY THE TAXPAYER IN 1938 TO
REDUCE ITS INDEBTEDNESS.  RELIANCE WAS PLACED BY THE TAXPAYER ON THE
FOUR-YEAR LIMITATION PERIOD SPECIFIED IN SEC. 3313.  THE COMMISSIONER
OF INTERNAL REVENUE REJECTED THIS CLAIM, POINTING OUT THAT SEC. 3313
SPECIFICALLY EXEMPTS FROM ITS APPLICATION INCOME, WAR-PROFITS, EXCESS
PROFITS, ESTATE AND GIFT TAXES. 

THIS SUIT WAS THEN BROUGHT BY THE TAXPAYER IN THE DISTRICT COURT TO
RECOVER THE AMOUNT ALLEGED BY THE REFUND CLAIM TO BE DUE.  THAT COURT
HELD THAT SEC. 3313 WAS APPLICABLE AND GAVE JUDGMENT FOR THE TAXPAYER. 
66 F.SUPP.  254.  THE TENTH CIRCUIT COURT OF APPEALS, ONE JUDGE
DISSENTING, AFFIRMED THE JUDGMENT.  159 F.2D 316.  THE PROBLEM BEING
ONE OF IMPORTANCE IN THE ADMINISTRATION OF THE REVENUE LAWS, WE GRANTED
CERTIORARI. 

REVENUE CODE, A SUBTITLE DEALING WITH THOSE TAXES OVER WHICH THE TAX
COURT HAS JURISDICTION.  SUCH JURISDICTION INCLUDES INCOME, EXCESS
PROFITS, ESTATE AND GIFT TAXES.  MORE SPECIFICALLY, SEC. 322(B)(1)
APPEARS UNDER CHAPTER 1 OF THE CODE, PERTAINING TO INCOME TAXES.  IT IS
CONCERNED WITH OVERPAYMENTS OF INCOME TAXES AND PROVIDES QUITE SIMPLY
THAT NO REFUND SHALL BE ALLOWED UNLESS A CLAIM FOR REFUND "IS FILED BY
THE TAXPAYER WITHIN THREE YEARS FROM THE TIME THE RETURN WAS FILED BY
THE TAXPAYER OR WITHIN TWO YEARS FROM THE TIME THE TAX WAS PAID  ...." 
FN1 

CODE, A SUBTITLE DEVOTED TO MISCELLANEOUS TAXES.  IT IS IN CHAPTER 28,
WHICH CONTAINS VARIOUS PROVISIONS COMMON TO SUCH TAXES.  AND IT IS
AMONG THOSE PROVISIONS DEALING WITH THE ASSESSMENT, COLLECTION AND
REFUND OF THE TAXES.  IT READS AS FOLLOWS:  "ALL CLAIMS FOR THE
REFUNDING OR CREDITING OF ANY INTERNAL REVENUE TAX ALLEGED TO HAVE BEEN
ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED, OR OF ANY PENALTY
ALLEGED TO HAVE BEEN COLLECTED WITHOUT AUTHORITY, OR OF ANY SUM ALLEGED
TO HAVE BEEN EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED MUST,
EXCEPT AS OTHERWISE PROVIDED BY LAW IN THE CASE OF INCOME, WAR-PROFITS,
EXCESS-PROFITS, ESTATE, AND GIFT TAXES, BE PRESENTED TO THE
COMMISSIONER WITHIN FOUR YEARS NEXT AFTER THE PAYMENT OF SUCH TAX,
PENALTY, OR SUM.  THE AMOUNT OF THE REFUND (IN THE CASE OF TAXES OTHER
THAN INCOME, WAR-PROFITS, EXCESS-PROFITS, ESTATE, AND GIFT TAXES) SHALL
NOT EXCEED THE PORTION OF THE TAX, PENALTY, OR SUM PAID DURING THE FOUR
YEARS IMMEDIATELY PRECEDING THE FILING OF THE CLAIM, OR IF NO CLAIM WAS
FILED, THEN DURING THE FOUR YEARS IMMEDIATELY PRECEDING THE ALLOWANCE
OF THE REFUND." 

THE SUBSTANCE OF SEC. 3313 OF THE CODE HAS LONG BEEN A PART OF
FEDERAL STATUTORY LAW.  ITS ANCESTRY CAN BE TRACED BACK TO 1872, WHEN
SEC. 3228 OF THE REVISED STATUTES WAS ENACTED.  FN2 SECTION 3228
ESTABLISHED A PROCEDURE FOR FILING CLAIMS FOR REFUND OF ANY INTERNAL
REVENUE TAX ALLEGED TO HAVE BEEN "ERRONEOUSLY OR ILLEGALLY ASSESSED OR
COLLECTED" AND CREATED A LIMITATION PERIOD OF TWO YEARS FROM THE TIME
THE CAUSE OF ACTION ACCRUED, LATER EXTENDED IN 1921 TO FOUR YEARS FROM
THE DATE OF PAYMENT OF THE TAX.  FN3  BUT SOON AFTER THE ENTRY OF THE
INCOME TAX INTO THE FEDERAL SCENE IN 1913, SEPARATE PROVISION WAS MADE
FOR THE FILING OF CLAIMS FOR REFUND OF INCOME TAXES "PAID IN EXCESS OF
THOSE PROPERLY DUE."  SECTION 14(A) OF THE REVENUE ACT OF 1916 FN4  WAS
THE FIRST SUCH PROVISION AND IT MADE CLEAR THAT SEC. 3228 WAS
INAPPLICABLE TO CLAIMS OF THIS NATURE.  SECTION 252 OF THE REVENUE ACT
OF 1918,  FN5  FOLLOWED BY SEC. 252 OF THE 1921 ACT, FN6  CONTINUED
THIS SCHEME OF SEPARATE TREATMENT.  THESE LATER PROVISIONS WERE WRITTEN
SO AS TO INCLUDE REFUND CLAIMS RELATING TO WAR-PROFITS AND EXCESS
PROFITS TAXES AS WELL AS THOSE INVOLVING INCOME TAXES; AND A LIMITATION
OF FIVE YEARS FROM THE DATE THE RETURN WAS DUE WAS PLACED ON THE FILING
OF SUCH CLAIMS.  IT WAS FURTHER SPECIFIED THAT THE PROCEDURE THEREIN
DETAILED WAS TO BE FOLLOWED "NOTWITHSTANDING THE PROVISIONS" OF SEC.
3228. 

FN7  SO AS TO PERMIT CLAIMS FOR REFUND OF INCOME AND PROFITS TAXES
"PAID IN EXCESS OF THAT PROPERLY DUE" TO BE FILED WITHIN TWO YEARS
AFTER THE TAX WAS PAID, IN ADDITION TO THE FIVE-YEAR PERIOD AFTER THE
DUE DATE OF THE RETURN.  THIS CHANGE WAS MADE "SO THAT THE TAXPAYER WHO
HAS, BY AGREEMENT WITH THE TREASURY, PERMITTED THE TIME FOR THE FINAL
ASSESSMENT OF THE TAXES DUE FROM HIM TO BE MADE AFTER THE EXPIRATION OF
THE FIVE-YEAR PERIOD, WILL NOT BE BARRED FROM MAKING A CLAIM FOR A
REFUND WHEN SUCH ASSESSMENT IS MADE AND THE TAXPAYER ALLEGES THAT THE
ASSESSMENT IS ILLEGAL."  FN8  AMENDING SEC. 252 RATHER THAN SEC. 3228
OF THE REVISED STATUTES TO ACCOMPLISH THIS PURPOSE WAS SIGNIFICANT.  IT
WAS AN UNEQUIVOCAL INDICATION THAT SEC. 252, IN SPEAKING OF CLAIMS FOR
REFUND OF "EXCESS" PAYMENTS OF INCOME AND PROFITS TAXES, WAS DESIGNED
BY ITS FRAMERS TO INCLUDE NOT ONLY THOSE PAYMENTS GROWING OUT OF ERRORS
IN THE PREPARATION OF RETURNS BUT ALSO THOSE PAYMENTS RESULTING FROM
ILLEGAL OR ERRONEOUS ASSESSMENTS.  SEE GRAHAM V. DUPONT, 262 U.S. 234,
258. 

THE REVENUE ACT OF 1924  FN9  TRANSFERRED THE SUBSTANCE OF THE FORMER
SEC. 252 TO A NEW SEC. 281.  A FOUR-YEAR PERIOD OF LIMITATIONS FROM THE
DATE OF THE PAYMENT OF THE TAX WAS ESTABLISHED, A PERIOD COINCIDING IN
LENGTH WITH THAT PRESCRIBED BY SEC. 3228.  THE REFERENCE TO THE TYPE OF
PAYMENTS INVOLVED WAS RECAST; IN PLACE OF SPEAKING OF PAYMENTS "IN
EXCESS OF THAT PROPERLY DUE," SEC. 281 USED THE SIMPLE TERM
"OVERPAYMENT."  FN10  AND INSTEAD OF STATING IN SEC. 281 THAT ITS
PROVISIONS SHOULD APPLY "NOTWITHSTANDING THE PROVISIONS" OF SEC. 3228
OF THE REVISED STATUTES, SEC. 3228 ITSELF WAS AMENDED  FN11  TO MAKE IT
APPLICABLE TO ALL CLAIMS FOR THE REFUNDING OR CREDITING OF ANY INTERNAL
REVENUE TAX "EXCEPT AS PROVIDED IN SECTION 281 OF THE REVENUE ACT OF
1924."  THIS PLACING OF AN EXCEPTIVE CLAUSE IN SEC. 3228 WAS DONE "TO
REMOVE THE DOUBT WHICH NOW EXISTS AS TO WHETHER OR NOT THE PROVISIONS
OF SECTION 3228, REVISED STATUTES, APPLY IN ANY EVENT TO INCOME
TAXES."  FN12  IN OTHER WORDS, THE STATUTORY DRAFTERS INTENDED TO MAKE
CERTAIN THAT SEC. 3228 WAS IN NO EVENT TO APPLY TO INCOME TAX REFUND
CLAIMS.  SUCH CLAIMS WERE TO BE GOVERNED EXCLUSIVELY BY SEC. 281. 

THE ESSENCE OF SEC. 281 OF THE 1924 ACT HAS BEEN CARRIED THROUGH TO
THE PRESENT SEC. 322 OF THE INTERNAL REVENUE CODE.  FN13  THE ONLY
SIGNIFICANT CHANGE IN THE INTERVAL, FOR OUR PURPOSES, WAS A REDUCTION
IN THE PERIOD OF LIMITATIONS, AS MEASURED FROM THE PAYMENT OF THE TAX,
FROM FOUR YEARS TO THREE YEARS AND FINALLY TO TWO YEARS.  AND SEC. 3228
OF THE REVISED STATUTES, AS AMENDED TO STATE THAT IT APPLIES "EXCEPT AS
OTHERWISE PROVIDED BY LAW IN THE CASE OF INCOME, WAR-PROFITS, EXCESS
PROFITS, ESTATE, AND GIFT TAXES," HAS BECOME THE CURRENT SEC. 3313 OF
THE CODE. 

WITH THIS BACKGROUND IN MIND, WE FIND THE PATTERN OF LIMITATION
PERIODS FOR TAX REFUND CLAIMS TO BE CLEAR.  SECTION 3313 OF THE CODE
ESTABLISHES A FOUR-YEAR PERIOD FOR ALL INTERNAL REVENUE TAXES, EXCEPT
AS OTHERWISE PROVIDED BY LAW IN THE CASE OF SPECIFIED TAXES.  AMONG THE
LATTER IS THE INCOME TAX, AS TO WHICH SEC. 322(B)(1) MAKES PROVISION
"OTHERWISE" BY REQUIRING THAT REFUND CLAIMS BE PRESENTED WITHIN TWO
YEARS OF PAYMENT OR WITHIN THREE YEARS FROM THE FILING OF THE RETURN. 
PROVISIONS ARE ALSO MADE "OTHERWISE" IN THE CASE OF THE ESTATE TAX
(SEC. 910 OF THE CODE) AND THE GIFT TAX (SEC. 1027 OF THE CODE). 

THE ARGUMENT IS MADE, HOWEVER, THAT SEC. 322(B)(1) DEALS ONLY WITH
INCOME TAX "OVERPAYMENTS" AND NOT WITH INCOME TAXES "ERRONEOUSLY OR
ILLEGALLY ASSESSED OR COLLECTED."  OVERPAYMENTS ARE SAID TO REFER
SOLELY TO EXCESS PAYMENTS RESULTING FROM ERRORS BY TAXPAYERS IN THE
PREPARATION OF THEIR RETURNS OR IN RELATED ACTIVITIES, WHILE ERRONEOUS
OR ILLEGAL ASSESSMENTS AND COLLECTIONS ARE CLAIMED TO RELATE TO VARIOUS
KINDS OF ERRORS ON THE PART OF REVENUE AGENTS.  SINCE THERE IS NO
PROVISION "OTHERWISE" FOR INCOME TAX REFUND CLAIMS INVOLVING THE LATTER
TYPE OF ERRORS, THE CONCLUSION IS REACHED THAT THE FOUR-YEAR LIMITATION
PERIOD OF SEC. 3313 REMAINS APPLICABLE.  WE CANNOT AGREE. 

IN THE ABSENCE OF SOME CONTRARY INDICATION, WE MUST ASSUME THAT THE
FRAMERS OF THESE STATUTORY PROVISIONS INTENDED TO CONVEY THE ORDINARY
MEANING WHICH IS ATTACHED TO THE LANGUAGE THEY USED.  SEE ROSENMAN V.
UNITED STATES, 323 U.S. 658, 661.  HENCE WE READ THE WORD "OVERPAYMENT"
IN ITS USUAL SENSE, AS MEANING ANY PAYMENT IN EXCESS OF THAT WHICH IS
PROPERLY DUE.  SUCH AN EXCESS PAYMENT MAY BE TRACED TO AN ERROR IN
MATHEMATICS OR IN JUDGMENT OR IN INTERPRETATION OF FACTS OR LAW.  AND
THE ERROR MAY BE COMMITTED BY THE TAXPAYER OR BY THE REVENUE AGENTS. 
WHATEVER THE REASON, THE PAYMENT OF MORE THAN IS RIGHTFULLY DUE IS WHAT
CHARACTERIZES AN OVERPAYMENT. 

THAT THIS ORDINARY MEANING IS THE ONE INTENDED BY THE AUTHORS OF SEC.
322(B)(1) IS QUITE EVIDENT FROM THE LEGISLATIVE HISTORY WHICH WE HAVE
DETAILED.  THE WORD "OVERPAYMENT" FIRST APPEARED IN SEC. 281 OF THE
1924 REVENUE ACT, ONE OF THE DIRECT ANCESTORS OF SEC. 322(B)(1).  THE
WORD WAS THERE USED AS A SUBSTITUTE FOR THE PREVIOUS REFERENCE TO
PAYMENTS "IN EXCESS OF THAT PROPERLY DUE," A PHRASE THAT IS A PERFECT
DEFINITION OF AN OVERPAYMENT AND THAT IS NOT NECESSARILY CONFINED TO
OVERPAYMENTS OCCASIONED BY ERRORS MADE BY TAXPAYERS.  THE IMMEDIATE
PREDECESSOR OF SEC. 281 HAD EMPLOYED THAT PHRASE AND HAD BEEN ENACTED
IN 1923 WITH THE EXPRESSED INTENTION OF INCLUDING CLAIMS GROWING OUT OF
ILLEGAL ASSESSMENTS.  THERE WAS NOT THE SLIGHTEST INDICATION THAT THE
SUBSTITUTION OF THE WORD "OVERPAYMENT" WAS DESIGNED TO NARROW THE SCOPE
OF SEC. 281.  IT APPARENTLY WAS A MERE SIMPLIFICATION IN PHRASEOLOGY. 
BUT IT DOES MAKE CLEAR THE SENSE IN WHICH THE WORD WAS FIRST USED IN
THIS CONTEXT.  THE GENERIC CHARACTER OF THE WORD WAS EMPHASIZED FROM
THE START.  FN14  AND WE SEE NO BASIS FOR MAKING IT OVER INTO A WORD OF
ART AT THIS LATE DATE. 

THE LEGISLATIVE HISTORY FURTHER REVEALS A CONSISTENT INTENTION TO
MAKE A SEPARATE AND COMPLETE LIMITATION PROVISION FOR INCOME TAX REFUND
CLAIMS, WHATEVER MIGHT BE THE UNDERLYING BASIS OF THE CLAIMS.  SECTION
322 AND ITS PREDECESSORS WERE DEVISED IN ORDER TO PROVIDE SUCH AN
EXCLUSIVE SCHEME.  CLAIMS RELATING TO THE INCOME TAX HAVE AT ALL TIMES
BEEN EXPLICITLY EXCLUDED FROM SEC. 3313.  FN15  THIS ARRANGEMENT IS BUT
PART OF THE GENERAL PLAN EVIDENT IN THE INTERNAL REVENUE CODE OF
PROVIDING SEPARATE TREATMENT FOR THE INCOME, PROFITS, ESTATE AND GIFT
TAXES, AS DISTINCT FROM THE MISCELLANEOUS TAXES AND THE EXCISE, IMPORT
AND TEMPORARY TAXES.  WE WOULD BE DOING UNWARRANTED VIOLENCE TO THIS
CLEAR DEMARCATION WERE WE TO READ THE WORD "OVERPAYMENT" SO AS TO PLACE
CERTAIN TYPES OF INCOME TAX REFUND CLAIMS WITHIN THE SCOPE OF SEC.
3313, A SECTION THAT HAS ALWAYS BEEN DIVORCED FROM THE INCOME TAX
PORTION OF THE REVENUE LAWS. 

IT IS POINTED OUT, HOWEVER, THAT VARIOUS LOWER FEDERAL COURTS,
BEGINNING IN 1939, HAVE REACHED A CONTRARY RESULT.  FN16  THEY HAVE
HELD THAT SEC. 3313 RATHER THAN SEC. 322(B)(1) GOVERNS REFUND CLAIMS
FOR INCOME TAXES ALLEGED TO HAVE BEEN "ERRONEOUSLY OR ILLEGALLY
ASSESSED OR COLLECTED."  SINCE CONGRESS HAS SUBSEQUENTLY CONVENED FROM
TIME TO TIME AND HAS AMENDED SEC. 322 IN OTHER RESPECTS WITHOUT
EXPRESSLY DISAPPROVING THIS INTERPRETATION, THE CONTENTION IS ADVANCED
THAT LEGISLATIVE ACQUIESCENCE IN THE INTERPRETATION MUST BE ASSUMED. 
BUT THE DOCTRINE OF LEGISLATIVE ACQUIESCENCE IS AT BEST ONLY AN
AUXILIARY TOOL FOR USE IN INTERPRETING AMBIGUOUS STATUTORY PROVISIONS. 
SEE HELVERING V. REYNOLDS, 313 U.S. 428, 432.  HERE THE LANGUAGE AND
THE PURPOSE OF CONGRESS SEEM CLEAR TO US.  THE ARRANGEMENT WHEREBY ALL
INCOME TAX REFUND CLAIMS ARE TO BE GOVERNED BY WHAT IS NOW SEC.
322(B)(1) WAS ESTABLISHED IN AN UNMISTAKABLE MANNER NEARLY A QUARTER OF
A CENTURY AGO, AN ARRANGEMENT THAT HAS BEEN CONTINUED THROUGH VARIOUS
REENACTMENTS AND CHANGES IN THE REVENUE LAWS.  AND THAT ARRANGEMENT HAS
BEEN CONSISTENTLY RECOGNIZED AND FOLLOWED BY THE TREASURY DEPARTMENT. 
FN17  UNDER THOSE CIRCUMSTANCES, IT WOULD TAKE MORE THAN LEGISLATIVE
SILENCE IN THE FACE OF RATHER RECENT CONTRARY DECISIONS BY LOWER
FEDERAL COURTS TO OVERCOME THE FACTORS UPON WHICH WE HAVE PLACED
RELIANCE.  CF. ELECTRIC BATTERY CO. V. SHIMADZU, 307 U.S. 5, 14;
MISSOURI V. ROSS, 299 U.S. 72, 75; UNITED STATES V. ELGIN, J. & E.R.
CO., 298 U.S. 492, 500.  WE DO NOT EXPECT CONGRESS TO MAKE AN
AFFIRMATIVE MOVE EVERY TIME A LOWER COURT INDULGES IN AN ERRONEOUS
INTERPRETATION.  IN SHORT, THE ORIGINAL LEGISLATIVE LANGUAGE SPEAKS
LOUDER THAN SUCH JUDICIAL ACTION. 

WE ACCORDINGLY CONCLUDE THAT ALL INCOME TAX REFUND CLAIMS, WHATEVER
THE REASONS GIVING RISE TO THE CLAIMS, MUST BE FILED WITHIN THREE YEARS
FROM THE TIME THE RETURN WAS FILED OR WITHIN TWO YEARS FROM THE TIME
THE TAX WAS PAID, AS PROVIDED IN SEC. 322(B)(1).  THE FOUR-YEAR PERIOD
PRESCRIBED BY SEC. 3313 IS INAPPLICABLE TO SUCH CLAIMS.  SINCE
RESPONDENT FILED ITS INCOME TAX REFUND CLAIM MORE THAN THREE YEARS
AFTER FILING THE RETURN AND MORE THAN TWO YEARS AFTER PAYMENT OF THE
TAX, ITS CLAIM WAS OUT OF TIME.  THAT IS TRUE EVEN THOUGH THE CLAIM
AROSE OUT OF AN INCOME TAX ALLEGED TO HAVE BEEN "ERRONEOUSLY OR
ILLEGALLY ASSESSED OR COLLECTED."  REVERSED. 

FN1  THE RETURN IN THIS CASE WAS FILED IN JUNE, 1939.  SINCE THE
CLAIM WAS FILED ON MARCH 30, 1944, NO CONTENTION COULD BE MADE THAT IT
WAS WITHIN THE THREE-YEAR PERIOD FROM THE DATE THE RETURN WAS FILED. 

FN2  SECTION 3228 WAS IN THE NATURE OF A REVISION OF SEC. 44 OF THE
ACT OF JUNE 6, 1872, 17 STAT. 230, 257. 

FN3  REVENUE ACT OF 1921, SEC. 1316, 42 STAT. 227, 314. 

FN4  39 STAT. 756, 772.  THIS PROVIDED THAT THE CLAIM FOR REFUND
MIGHT BE PRESENTED "NOTWITHSTANDING THE PROVISIONS OF SECTION THIRTY
TWO HUNDRED AND TWENTY-EIGHT OF THE REVISED STATUTES." 

FN5  40 STAT. 1057, 1085. 

FN6  42 STAT. 227, 268. 

FN7  ACT OF MARCH 4, 1923, 42 STAT. 1504, 1505.  IN AMENDING SEC.
252, THE ACT OF MARCH 4, 1923, MADE MENTION OF REFUNDS OF INCOME TAXES
TO WITHHOLDING AGENTS WHICH MIGHT BE MADE UNDER THE PROVISIONS OF
"SECTION 3228 OF THE REVISED STATUTES."  THIS WAS AN OBVIOUS REFERENCE
TO THE PRACTICE OF THE TREASURY DEPARTMENT, ADMITTED TO BE OF "VERY
DOUBTFUL LEGALITY," H.R. REP. NO. 1424, 67TH CONG., 4TH SESS., P. 2, OF
ALLOWING A TAXPAYER WHO HAD PERMITTED AN ADDITIONAL ASSESSMENT AFTER
THE FIVE-YEAR PERIOD FROM THE DUE DATE OF THE RETURN (SPECIFIED BY SEC.
252 OF THE 1921 ACT) TO FILE A CLAIM FOR REFUND WITHIN FOUR YEARS AFTER
PAYMENT OF THE TAX (PURSUANT TO SEC. 3228), EVEN THOUGH THE FIVE-YEAR
PERIOD HAD ELAPSED.  THE TREASURY HAD INSTITUTED THIS PRACTICE TO
PREVENT INEQUITIES WHICH MIGHT OTHERWISE ENSUE TO SUCH TAXPAYERS, BUT
IT WAS WITHOUT LEGISLATIVE SANCTION.  IT WAS TO TAKE CARE OF THE
TAXPAYERS WHO HAD TAKEN ADVANTAGE OF THE TREASURY PRACTICE THAT THE
REFERENCE IN QUESTION IN THE ACT OF MARCH 4, 1923, WAS MADE.  AS TO
CLAIMS PENDING ON MARCH 4, 1923, WHICH WERE TIMELY FILED UNDER SEC.
3228, BUT NOT TIMELY UNDER SEC. 252, REFUNDS TO WITHHOLDING AGENTS WERE
NECESSARILY TO BE MADE UNDER SEC. 3228.  THIS PROVISION WAS NOT
REPEATED IN SUBSEQUENT LEGISLATION AND IT WAS NOT INDICATIVE OF A
LEGISLATIVE INTENT TO PERMIT INCOME TAX REFUND CLAIMS TO BE GOVERNED BY
SEC. 3228 IN THE FUTURE. 

FN8  H.R. REP. NO. 1424, 67TH CONG., 4TH SESS., P. 2; S. REP. NO.
1137, 67TH CONG., 4TH SESS., P. 2. 

FN9  43 STAT. 253, 301. 

FN10  THE REVENUE ACT OF 1924, 43 STAT. 253, 296, ALSO CREATED A NEW
SEC. 272, DEALING WITH "OVERPAYMENTS" OF INCOME TAX INSTALLMENTS.  THIS
SPOKE OF OVERPAYMENTS IN THE SENSE OF PAYMENTS OF "MORE THAN THE AMOUNT
DETERMINED TO BE THE CORRECT AMOUNT OF SUCH INSTALLMENT."  THIS
PROVISION NOW EXISTS AS SEC. 321 OF THE INTERNAL REVENUE CODE. 

FN11  43 STAT. 253, 342. 

FN12  H.R. REP. NO. 179, 68TH CONG., 1ST SESS., P. 71; S. REP. NO.
398, 68TH CONG., 1ST SESS., P. 44.  THIS QUOTATION WAS TAKEN VERBATIM
BY THE CONGRESSIONAL COMMITTEES FROM THE STATEMENT OF A.W. GREGG OF THE
TREASURY DEPARTMENT, STATEMENT OF THE CHANGES MADE IN THE REVENUE ACT
OF 1921 BY H.R. 6715 AND THE REASONS THEREFOR, SENATE COMMITTEE PRINT,
68TH CONG., 1ST SESS., MARCH 6, 1924, P. 37. 

FN13  SEE REVENUE ACT OF 1926, SEC. 284, 44 STAT. 9, 66; REVENUE ACT
OF 1928, SEC. 322, 45 STAT. 791, 861; REVENUE ACT OF 1932, SEC. 322, 47
STAT. 169, 242; REVENUE ACT OF 1934, SEC. 322, 48 STAT. 680, 750. 

FN14  SECTION 272 OF THE 1924 ACT (NOW SEC. 321 OF THE CODE) REFERRED
TO "OVERPAYMENTS" OF INCOME TAX INSTALLMENTS AS PAYMENTS OF "MORE THAN
THE AMOUNT DETERMINED TO BE THE CORRECT AMOUNT OF SUCH INSTALLMENT." 
SEE NOTE 10, SUPRA.  SUCH A DEFINITION ADMITS OF NO DISTINCTION BETWEEN
ERRORS BY THE TAXPAYER AND ERRORS BY THE REVENUE AGENTS. 

FN15  REFERENCE SHOULD ALSO BE MADE TO THE SECOND SENTENCE OF SEC.
3313, PROVIDING THAT THE AMOUNT OF REFUND MAY NOT EXCEED THE AMOUNT OF
TAX PAID DURING THE FOUR-YEAR PERIOD.  THERE IS A PARENTHETICAL PHRASE
IN THIS SENTENCE WHICH SPECIFICALLY EXCLUDES INCOME, WAR-PROFITS,
EXCESS-PROFITS, ESTATE AND GIFT TAXES.  IF THE FIRST SENTENCE OF SEC.
3313, ESTABLISHING THE FOUR-YEAR LIMITATION PERIOD, APPLIED TO INCOME
TAX REFUND CLAIMS ARISING OUT OF ILLEGAL ASSESSMENTS, THERE WOULD BE NO
LIMIT ON THE AMOUNT OF REFUND BY REASON OF THIS SECOND SENTENCE.  SUCH
A RESULT IS WITHOUT SUPPORT IN THE PURPOSE OR HISTORY OF THE PROVISIONS
DEALING WITH THESE REFUND CLAIMS. 

FN16  HUNTLEY V. SOUTHERN OREGON SALES, 102 F.2D 538, WAS THE FIRST
CASE SO HOLDING.  SUBSEQUENT DECISIONS OF THE SAME TENOR HAVE RELIED IN
LARGE PART UPON THE HUNTLEY CASE.  OLSEN V. UNITED STATES, 32 F.SUPP. 
276; UNITED STATES V. LEADERER TERMINAL W. CO., 139 F.2D 679; IN RE
TINDLE'S ESTATE, 59 F.SUPP.  667, AFFIRMED PER CURIAM SUB NOM.
PENNSYLVANIA CO. FOR INSURANCES ON LIVES V. UNITED STATES, 152 F.2D
757; GODFREY V. UNITED STATES, 61 F.SUPP.  240; NOBLE V. KAVANAGH, 66
F.SUPP.  258, AFFIRMED PER CURIAM, 160 F.2D 104; SBARBARO V. UNITED
STATES, 73 F.SUPP.  213.  SEE ALSO FAWCETT V. UNITED STATES, 70
F.SUPP.  742.  COMPARE CENTRAL HANOVER BANK & TRUST CO. V. UNITED
STATES, 67 F.SUPP.  920.  IN MANY CASES, HOWEVER, THE APPLICABILITY OF
SEC. 322(B)(1) TO CLAIMS OF THE TYPE HERE INVOLVED WAS ASSUMED WITHOUT
QUESTION AND WITHOUT AN EXPLICIT HOLDING ON THE POINT.  SEE, FOR
EXAMPLE, UNITED STATES V. GARBUTT OIL CO., 302 U.S. 528. 

FN17  SEE I.T. 1447, I-2 CUM. BULL.  220(1922); T.D. 3457, II-1 CUM.
BULL.  177(1923) AND T.D. 3462, AMENDING REGULATIONS 62, II-1 CUM.
BULL.  180(1923); S.M. 1712, III-1 CUM. BULL.  345(1924); S.M. 2293,
III-2 CUM. BULL.  310(1924); G.C.M. 3152, VII-1 CUM. BULL.  153(1928);
G.C.M. 13759, XIII-2 CUM. BULL.  102(1934); MIM.  4814, 1938-2 CUM.
BULL.  96; I.T. 3483, 1941-1 CUM. BULL.  397. 

THE PRESENT TREASURY VIEWPOINT IS CODIFIED IN TREASURY REGULATIONS
111, PROMULGATED UNDER THE INTERNAL REVENUE CODE, SEC. 29.322-3 AND
SEC. 29.322-7.  SEE ALSO TREASURY REGULATIONS 103, PROMULGATED UNDER
THE CODE, SEC. 19.322-3 AND SEC. 19.322-7, AS AMENDED BY T.D. 5256,
1943 CUM. BULL.  550; AND TREASURY REGULATIONS 101, PROMULGATED UNDER
THE REVENUE ACT OF 1938, ARTICLES 322-3 AND 322-7. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :







KAVANAGH V. NOBLE, 332 U.S. 535 


NO. 70.  ARGUED NOVEMBER 18, 1947.  - DECIDED DECEMBER 22, 1947.  - 160
F.2D 104, REVERSED. 


1.  ASSUMING THAT THE DEFICIENCY ASSESSMENT AND COLLECTION OF THE
FEDERAL INCOME TAX IN THIS CASE WERE WITHOUT LEGAL AUTHORITY, THE
TAXPAYER'S PAYMENT OF THAT ILLEGAL ASSESSMENT WAS AN "OVERPAYMENT"
WITHIN THE MEANING OF SEC. 322(B)(1) OF THE INTERNAL REVENUE CODE, AND
(THE RETURN HAVING BEEN FILED MORE THAN THREE YEARS PREVIOUSLY) A CLAIM
FOR REFUND WAS BARRED BY LIMITATIONS WHERE NOT FILED WITHIN TWO YEARS
OF THE DATE OF THAT PAYMENT.  JONES V. LIBERTY GLASS CO., ANTE, P.
524.  PP. 536-538. 

2.  IT IS FOR CONGRESS, NOT THE COURTS, TO PROVIDE REMEDIES FOR
INEQUITIES RESULTING FROM THE APPLICATION OF LIMITATIONS ON REFUNDS OF
FEDERAL TAXES.  P. 539. 

KAVANAGH, COLLECTOR OF INTERNAL REVENUE, V. NOBLE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE DISTRICT COURT GAVE JUDGMENT FOR THE RESPONDENT IN A SUIT UPON A
CLAIM FOR REFUND OF FEDERAL INCOME TAX.  66 F.SUPP.  258.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  160 F.2D 104.  THIS COURT GRANTED
CERTIORARI.  331 U.S. 800.  REVERSED, P. 539. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A COMPANION TO JONES V. LIBERTY GLASS CO., ANTE, P.
524. 

THE STIPULATED FACTS SHOW THAT ON MARCH 16, 1936, THE RESPONDENT
TAXPAYER FILED WITH THE COLLECTOR OF INTERNAL REVENUE A JOINT
INDIVIDUAL INCOME TAX RETURN FOR HIMSELF AND HIS WIFE FOR THE CALENDAR
YEAR 1935.  THIS DISCLOSED A TAX LIABILITY OF $8,017.01, WHICH WAS DULY
PAID.  IN THE RETURN THE LOSSES AND GAINS FROM SALES OF CAPITAL ASSETS
BY THE TAXPAYER AND HIS WIFE WERE REPORTED TOGETHER, THE LOSSES OF THE
WIFE BEING DEDUCTED FROM THE GAINS OF THE HUSBAND, RESULTING IN A NET
LOSS IN EXCESS OF $2,000.  THIS AMOUNT (THE ALLOWABLE LIMIT OF LOSS)
WAS DEDUCTED ON THE RETURN. 

ON JUNE 7, 1937, THE TAXPAYER WAS ADVISED AT A CONFERENCE WITH
REVENUE AGENTS THAT THERE WAS ADDITIONAL INCOME TAX DUE FOR THE YEAR
1935, AGGREGATING $421.80.  THE TAXPAYER'S CHECK, WHICH WAS TENDERED
FOR THAT AMOUNT, WAS LATER RETURNED TO HIM.  THEN BY A LETTER DATED
JUNE 11, 1937, A REVENUE AGENT NOTIFIED THE TAXPAYER THAT INSTEAD OF A
DEFICIENCY OF $421.80 ON THE 1935 INCOME TAX RETURN THERE WAS A
DEFICIENCY OF $19,973.93 AND THE TAXPAYER WAS FURNISHED A COMPUTATION
SHOWING THE BASIS FOR SUCH DETERMINATION.  THE AGENT RELIED UPON
ARTICLE 117-5, TREASURY REGULATIONS 86, LATER DECLARED VOID BY THIS
COURT IN HELVERING V. JANNEY, 311 U.S. 189.  AFTER PROTEST AND FURTHER
CONFERENCE, THE TAXPAYER GAVE THE AGENT A CHECK FOR $21,527.70,
COVERING THE THEN PROPOSED DEFICIENCY ASSESSMENT OF $19,973.93, PLUS
INTEREST OF $1,553.77.  THIS CHECK WAS REMITTED TO THE UNITED STATES
TREASURY, AFTER HAVING BEEN RECEIVED BY THE COLLECTOR ON JULY 21,
1937. 

ON JULY 14, 1937, THE TAXPAYER AND HIS WIFE EXECUTED AN AGREEMENT
WAIVING CERTAIN STATUTORY RESTRICTIONS IN THEIR FAVOR AND CONSENTING TO
THE IMMEDIATE ASSESSMENT AND COLLECTION AGAINST THEM OF 1935 INCOME TAX
IN THE PRINCIPAL SUM OF $19,973.93, PLUS DEFICIENCY INTEREST OF
$1,553.77, WHICH THE COMMISSIONER THEREAFTER ASSESSED.  THE AGREEMENT
SPECIFIED IN A FOOTNOTE THAT IT WAS NOT A FINAL CLOSING AGREEMENT UNDER
SEC. 606 OF THE REVENUE ACT OF 1928 AND THAT IT DID NOT THEREFORE
PRECLUDE THE ASSERTION OF A FURTHER DEFICIENCY IF ONE SHOULD BE
DETERMINED, NOR DID IT EXTEND THE STATUTORY PERIOD OF LIMITATION FOR
REFUND, ASSESSMENT OR COLLECTION OF THE TAX. 

ON JANUARY 28, 1941, THE TAXPAYER AND HIS WIFE FILED A CLAIM FOR
REFUND OF $21,105.90, PLUS INTEREST, ON THE GROUND THAT THERE HAD BEEN
AN ILLEGAL ASSESSMENT AND COLLECTION SINCE THE REVENUE AGENTS HAD
"REFUSED TO ALLOW THE LOSSES OF ONE SPOUSE AGAINST THE GAINS OF THE
OTHER SPOUSE IN THE JOINT RETURN OF HUSBAND AND WIFE."  REFERENCE WAS
MADE TO SEC. 3313 OF THE INTERNAL REVENUE CODE, SPECIFYING A FOUR-YEAR
PERIOD OF LIMITATIONS.  THE COMMISSIONER OF INTERNAL REVENUE REJECTED
THIS CLAIM IN RELIANCE UPON SEC. 322(B)(1) OF THE REVENUE ACT OF
1934(THE SAME AS SEC. 322(B)(1) OF THE CODE), ESTABLISHING A TWO-YEAR
PERIOD OF LIMITATIONS; IT WAS POINTED OUT THAT SEC. 3313 SPECIFICALLY
EXCLUDES INCOME TAXES FROM THOSE FOR WHICH A CLAIM MAY BE FILED WITHIN
FOUR YEARS AFTER PAYMENT. 

ON JULY 12, 1941, THE TAXPAYER FILED HIS INDIVIDUAL CLAIM FOR REFUND
OF $21,527.70 PAID WITH RESPECT TO THE YEAR 1935.  THE CLAIM WAS ON THE
SAME GROUNDS AS THE CLAIM PREVIOUSLY FILED BY THE TAXPAYER AND HIS
WIFE.  THIS CLAIM WAS RETURNED WITH THE REQUEST THAT THE WIFE JOIN IN
THE EXECUTION OF THE CLAIM; THIS REQUEST WAS REFUSED AND THE CLAIM WAS
RETURNED TO THE COLLECTOR; ONCE AGAIN THE CLAIM WAS RETURNED TO THE
TAXPAYER. 

THE TAXPAYER THEN BROUGHT THIS SUIT AGAINST THE COLLECTOR TO RECOVER
THE AMOUNT ALLEGED TO BE DUE IN THE REFUND CLAIM.  THE DISTRICT COURT
HELD THAT THE DECISION OF THE SIXTH CIRCUIT COURT OF APPEALS IN UNITED
STATES V. LEDERER TERMINAL W. CO., 139 F.2D 679, CONTROLLED THE CASE
AND MADE IT CLEAR THAT THE FOUR-YEAR PERIOD OF SEC. 3313 WAS
APPLICABLE.  SUMMARY JUDGMENT WAS THEREFORE ENTERED FOR THE TAXPAYER. 
66 F.SUPP.  258.  THE SIXTH CIRCUIT COURT OF APPEALS AFFIRMED PER
CURIAM, 160 F.2D 104, CITING ITS PREVIOUS DECISION IN THE LEDERER
TERMINAL CASE. 

FOR REASONS WHICH WE HAVE SET FORTH IN JONES V. LIBERTY GLASS CO.,
ANTE, P. 524, THE DECISION BELOW CANNOT STAND.  THE TWO-YEAR PERIOD
PROVIDED BY SEC. 322(B)(1), RATHER THAN THE FOUR-YEAR PERIOD OF SEC.
3313, GOVERNS INCOME TAX REFUND CLAIMS.  THE OVERPAYMENT WHICH BRINGS
SEC. 322(B)(1) INTO OPERATION OCCURS WHENEVER THE TAXPAYER HAS PAID AN
AMOUNT OVER AND ABOVE HIS TRUE LIABILITY.  HENCE, IF WE ASSUME THAT THE
DEFICIENCY ASSESSMENT AND COLLECTION IN THIS CASE WERE WITHOUT LEGAL
AUTHORITY, THE TAXPAYER'S PAYMENT OF THAT ILLEGAL ASSESSMENT WAS AN
OVERPAYMENT WITHIN THE MEANING OF SEC. 322(B)(1).  AND HE HAD TWO YEARS
FROM THE DATE OF THAT PAYMENT WITHIN WHICH TO FILE A CLAIM FOR REFUND. 
SINCE HE DID NOT FILE HIS CLAIM UNTIL THREE AND A HALF YEARS AFTER
PAYMENT, THE CLAIM WAS OUT OF TIME. 

IT MAY WELL BE THAT THE TAXPAYER'S REFUND CLAIM WAS PROMPTED BY THIS
COURT'S DECISION IN HELVERING V. JANNEY, SUPRA, WHICH SET ASIDE THE
TREASURY REGULATION UPON WHICH THE DEFICIENCY ASSESSMENT WAS BASED. 
THAT DECISION WAS RENDERED ON DECEMBER 9, 1940, AND THE TAXPAYER FILED
HIS FIRST REFUND CLAIM ON JANUARY 28, 1941.  BUT ASSUMING THAT THE
JANNEY DECISION MAKES CLEAR THAT THE TAXPAYER HERE MADE AN OVERPAYMENT,
THE LOSS WHICH HE NOW SUFFERS FROM AN APPLICATION OF SEC. 322(B)(1) IS
A LOSS WHICH IS INHERENT IN THE APPLICATION OF ANY PERIOD OF
LIMITATIONS.  SUCH PERIODS ARE ESTABLISHED TO CUT OFF RIGHTS,
JUSTIFIABLE OR NOT, THAT MIGHT OTHERWISE BE ASSERTED AND THEY MUST BE
STRICTLY ADHERED TO BY THE JUDICIARY.  ROSENMAN V. UNITED STATES, 323
U.S. 658, 661.  REMEDIES FOR RESULTING INEQUITIES ARE TO BE PROVIDED BY
CONGRESS, NOT THE COURTS. 

MOREOVER, IT IS NOT OUR PROVINCE TO SPECULATE AS TO WHY CONGRESS
ESTABLISHED A SHORTER PERIOD OF LIMITATIONS RELATIVE TO THE INCOME TAX
THAN IS THE CASE OF THOSE TAXES GOVERNED BY SEC. 3313.  IT IS ENOUGH
THAT SEC. 322(B)(1) CREATES A TWO-YEAR PERIOD APPLICABLE TO ALL INCOME
TAX REFUND CLAIMS AND THAT THE CLAIM IN THIS CASE IS OF THAT TYPE. 
REVERSED. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :




BLUMENTHAL V. UNITED STATES, 332 U.S. 539 


ARGUED OCTOBER 23, 1947.  - DECIDED DECEMBER 22, 1947.  - 158 F.2D 883,
AFFIRMED. 


THE FOUR PETITIONERS AND ANOTHER DEFENDANT WERE TRIED JOINTLY AND
CONVICTED FOR VIOLATING SEC. 37 OF THE CRIMINAL CODE BY CONSPIRING TO
SELL WHISKEY AT PRICES ABOVE THE CEILING SET BY THE OFFICE OF PRICE
ADMINISTRATION.  TWO OF THE DEFENDANTS WERE THE OWNER AND SALES
MANAGER, RESPECTIVELY, OF A BUSINESS HOLDING A WHOLESALE LIQUOR LICENSE
WHICH WAS THE OSTENSIBLE OWNER OF THE WHISKEY; BUT THEY WERE PROVEN,
SOLELY BY THEIR OWN ADMISSIONS, WHICH WERE RECEIVED IN EVIDENCE AS TO
THEM ALONE, TO HAVE KNOWN THAT THE CONCERN WAS ACTING AS INTERMEDIARY
FOR AN UNDISCLOSED OWNER.  THE OTHER THREE DEFENDANTS WERE SALESMEN WHO
MADE THE SALES AND COLLECTED THE PROCEEDS; AND THEY WERE NOT PROVEN TO
HAVE KNOWN THAT THE BUSINESS WAS NOT THE ACTUAL OWNER.  HELD: 

1.  UNDER THE TRIAL COURT'S RULINGS ON ADMISSIBILITY AND INSTRUCTIONS
THAT THE JURY MUST DETERMINE THE GUILT OR INNOCENCE OF EACH DEFENDANT
SEPARATELY AND MUST NOT TAKE INTO CONSIDERATION THE ADMISSIONS OF THE
OWNER AND SALES MANAGER IN DETERMINING THE GUILT OF THE SALESMEN, THE
ADMISSIONS WERE ADEQUATELY EXCLUDED FROM CONSIDERATION ON THE QUESTION
OF THE SALESMEN'S GUILT.  PP. 550-553, 559-560. 

2.  WITH THE ADMISSIONS OF THE OWNER AND SALES MANAGER THUS EXCLUDED,
THE EVIDENCE SUMMARIZED IN THE OPINION WAS SUFFICIENT TO SHOW THAT THE
FIVE DEFENDANTS JOINED IN A SINGLE CONSPIRACY TO SELL THE WHISKEY AT
OVER-CEILING PRICES IN THE GUISE OF LEGAL SALES.  PP. 542-545, 553
556. 

3.  ALTHOUGH IN A HYPERTECHNICAL ASPECT THE CASE MIGHT BE REGARDED AS
SHOWING TWO AGREEMENTS, ONE AMONG THE OWNER OF THE BUSINESS, THE SALES
MANAGER, AND THE UNDISCLOSED OWNER OF THE WHISKEY, AND THE OTHER AMONG
THE FIVE DEFENDANTS, THE UNIQUE FACTS OF THIS CASE REVEALED A SINGLE
OVER-ALL CONSPIRACY OF WHICH BOTH AGREEMENTS WERE ESSENTIAL AND
INTEGRAL STEPS.  PP. 553-559. 

4.  KOTTEAKOS V. UNITED STATES, 328 U.S. 750, DISTINGUISHED.  PP. 558
559. 

5.  THE RECEPTION IN EVIDENCE OF THE ADMISSIONS MADE BY THE OWNER AND
THE SALES MANAGER UNDER THE TRIAL COURT'S CAREFUL INSTRUCTIONS THAT THE
JURY MUST DETERMINE THE GUILT OR INNOCENCE OF EACH DEFENDANT SEPARATELY
AND MUST NOT TAKE THOSE ADMISSIONS INTO CONSIDERATION IN DETERMINING
THE GUILT OF THE SALESMEN, WAS NOT PREJUDICIAL ERROR AS TO THE LATTER. 
PP. 550-553, 559-560. 

6.  A CONSPIRACY TO VIOLATE THE EMERGENCY PRICE CONTROL ACT, COUPLED
WITH AN OVERT ACT IN FURTHERANCE THEREOF, IS PUNISHABLE UNDER SEC. 37
OF THE CRIMINAL CODE.  P. 560, N. 18. 

BLUMENTHAL V. UNITED STATES. 

NO. 54.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT* . 

*TOGETHER WITH NO. 55, GOLDSMITH V. UNITED STATES; NO. 56, WEISS V.
UNITED STATES; AND NO. 57, FEIGENBAUM V. UNITED STATES, ALSO ON
CERTIORARI TO THE SAME COURT. 

PETITIONERS WERE CONVICTED UNDER SEC. 37 OF THE CRIMINAL CODE FOR
CONSPIRING TO VIOLATE THE EMERGENCY PRICE CONTROL ACT.  THE CIRCUIT
COURT OF APPEALS AFFIRMED, 158 F.2D 883, AND DENIED REHEARING, ONE
JUDGE DISSENTING.  158 F.2D 762.  THIS COURT GRANTED CERTIORARI.  331
U.S. 799.  AFFIRMED, P. 560. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE FOUR PETITIONERS AND ABEL, ANOTHER DEFENDANT, WERE CONVICTED OF
CONSPIRING TO SELL WHISKEY AT PRICES ABOVE THE CEILING SET BY
REGULATIONS OF THE OFFICE OF PRICE ADMINISTRATION, IN VIOLATION OF THE
EMERGENCY PRICE CONTROL ACT.  50 U.S.C. SECS. 902(A), 904(A) AND
925(B).  THE CHARGE WAS MADE PURSUANT TO THE GENERAL CONSPIRACY
STATUTE, SEC. 37 OF THE CRIMINAL CODE.  THE CONVICTIONS WERE AFFIRMED
BY THE CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING.  158 F.2D 883,
DISSENTING OPINION AT 158 F.2D 762.  ABEL HAS NOT SOUGHT REVIEW IN THIS
COURT.  CERTIORARI WAS GRANTED AS TO THE OTHER FOUR DEFENDANTS BECAUSE
WE THOUGHT IMPORTANT QUESTIONS WERE PRESENTED CONCERNING THE
APPLICABILITY OF OUR RECENT DECISION IN KOTTEAKOS V. UNITED STATES, 328
U.S. 750. 

WE DID NOT LIMIT OUR GRANT OF CERTIORARI TO THAT QUESTION, HOWEVER,
AND ON THE RECORD IT IS INSEPARABLY CONNECTED WITH THE OTHER ISSUES,
WHICH RELATE TO THE ADMISSIBILITY AND SUFFICIENCY OF THE EVIDENCE. 
ACCORDINGLY WE HAVE CONSIDERED ALL OF PETITIONERS' CONTENTIONS.  THE
COMPETENT PROOF WAS CLEARLY SUFFICIENT TO SHOW THAT EACH PETITIONER HAD
AIDED IN THE WHISKEY'S ILLEGAL SALE AND HAD CONSPIRED WITH OTHERS TO DO
SO.  THE ONLY PHASE OF THE CASE MERITING FURTHER ATTENTION IS WHETHER,
BECAUSE OF A DIFFERENCE IN THE STATE OF THE PROOF AFFECTING TWO GROUPS
OF DEFENDANTS, THE PROOF, IN VARIANCE FROM THE INDICTMENT, SHOWS THAT
THERE WAS MORE THAN ONE CONSPIRACY. 

                               I. 

THE INDICTMENT CHARGES A SINGLE CONSPIRACY IN A SINGLE COUNT.  TEN
OVERT ACTS ARE SPECIFIED.  THE GOVERNMENT ALLEGED AND SOUGHT TO
ESTABLISH THAT ALL OF THE DEFENDANTS AND OTHER UNIDENTIFIED PERSONS
CONSPIRED TOGETHER TO DISPOSE OF TWO CARLOADS, EACH CONSISTING OF ABOUT
2,000 CASES, OF OLD MR. BOSTON ROCKING CHAIR WHISKEY AT OVER THE
CEILING WHOLESALE PRICES. 

THIS WHISKEY WAS SHIPPED BY RAIL FROM THE DISTILLER OR HIS AGENT TO
THE FRANCISCO DISTRIBUTING COMPANY, IN SAN FRANCISCO, IN DECEMBER,
1943.  GOLDSMITH WAS THE INDIVIDUAL AND SOLE OWNER OF THAT BUSINESS AND
HELD A WHOLESALE LIQUOR DEALER'S BASIC PERMIT AS REQUIRED BY FEDERAL
LAW.  WEISS, HIS FORMER PARTNER, WAS SALES MANAGER FOR THE BUSINESS. 
FEIGENBAUM OPERATED THE SUNSET DRUGSTORE IN SAN FRANCISCO.  BLUMENTHAL
OWNED AND OPERATED THE SPORTORIUM, A SPORTING GOODS AND PAWN SHOP IN
THE SAME CITY.  ABEL EITHER OWNED OR WORKED IN A JEWELRY STORE IN
VALLEJO, CALIFORNIA.  THE EVIDENCE DOES NOT SHOW THAT ANY OF THESE LAST
THREE WAS CONNECTED WITH FRANCISCO IN ANY WAY EXCEPT THAT EACH HAD PART
IN ARRANGING SALES AND DELIVERIES OF PORTIONS OF THESE TWO SHIPMENTS TO
PURCHASERS.  THESE WERE TAVERN OWNERS IN SAN FRANCISCO AND NEAR-BY
TOWNS SUCH AS VALLEJO, SANTA ROSA, LIVERMORE, COTTONWOOD AND EL
CERRITO.  PROOF OF THE ACTIVITIES OF FEIGENBAUM, BLUMENTHAL AND ABEL
WAS MADE LARGELY BY THE TESTIMONY OF THE VARIOUS TAVERNKEEPERS WITH
WHOM THEY RESPECTIVELY DEALT. 

THE EVIDENCE SHOWED THAT ON ARRIVAL OF THE WHISKEY IN SAN FRANCISCO
LEGAL TITLE WAS TAKEN IN FRANCISCO'S NAME, IN WHICH THE SHIPPING
DOCUMENTS WERE MADE OUT; THAT IT HONORED SIGHT DRAFTS FOR BOTH
SHIPMENTS, UPON GOLDSMITH'S DIRECTIONS TO FRANCISCO'S BANK TO PAY THEM
OUT OF FRANCISCO'S ACCOUNT; THAT SOME OF THE WHISKEY WAS DELIVERED EX
CAR DIRECTLY TO TAVERNKEEPERS WHO PREVIOUSLY HAD ARRANGED FOR PURCHASES
IN LOTS VARYING FROM 25 TO 200 CASES; THAT THE REMAINDER WAS PLACED IN
STORAGE WITH THE SAN FRANCISCO WAREHOUSE COMPANY, PURSUANT TO
ARRANGEMENTS MADE BY WEISS, AND THEREAFTER WAS DELIVERED BY THE
WAREHOUSE TO VARIOUS PURCHASERS HOLDING INVOICES ISSUED BY FRANCISCO
FN1  ON ORDERS GIVEN BY WEISS.  THE EX CAR DELIVERIES ALSO WERE MADE
PURSUANT TO SIMILAR INVOICES AND ORDERS. 

IT FURTHER APPEARED THAT THE COST OF THE WHISKEY TO FRANCISCO WAS
$21.97 A CASE,  FN2  THE WHOLESALE CEILING PRICE WAS $25.27, AND
FRANCISCO RECEIVED, BY CHECK OF THE PURCHASING TAVERNKEEPERS, $24.50
FOR EACH CASE SOLD.  THERE WAS THUS LEFT TO IT A MARGIN ABOVE COST OF
$2.53 ON EACH CASE, OUT OF WHICH WERE TO COME STORAGE CHARGES, IF ANY,
AND LEGITIMATE NET PROFIT. 

THUS FAR NO ILLEGAL ACT, TRANSACTION, INTENT OR AGREEMENT APPEARS. 
BUT BY THE TESTIMONY OF PURCHASING TAVERNKEEPERS THE GOVERNMENT PROVED
THAT IN CONNECTION WITH EACH SALE THE PURCHASER HAD PAID TO THE SELLING
INTERMEDIARY, IN ADDITION TO THE $24.50 PER CASE REMITTED BY CHECK TO
FRANCISCO, AN ADDITIONAL SUM IN CASH AMOUNTING ROUGHLY TO FROM $30 TO
$40 PER CASE.  THUS THE ACTUAL COST TO THE RETAILER WAS FROM $55 TO $65
PER CASE. 

IN SOME INSTANCES THE IDENTITY OF THE PERSON ARRANGING THE
TRANSACTION FOR THE SELLER AND RECEIVING THE CASH PAYMENT WAS NOT
ESTABLISHED OR KNOWN TO THE WITNESS TESTIFYING TO THE SALE AND ITS
DETAILS.  IN OTHERS, HOWEVER, BLUMENTHAL, FEIGENBAUM OR ABEL WAS
IDENTIFIED AS THE SALESMAN OR INTERMEDIARY.  IT WAS NOT BROUGHT OUT
WITH WHAT PERSON OR PERSONS ABEL, FEIGENBAUM, BLUMENTHAL OR THE OTHER
SALESMEN DEALT IN SECURING THE WHISKEY FROM FRANCISCO.  FN3  IN TWO
SALES, FIGONE, A TAVERNKEEPER OF EL CERRITO, TESTIFIED HE ARRANGED FOR
THE PURCHASES IN FRANCISCO'S OFFICES, BUT COULD NOT IDENTIFY THE PERSON
WITH WHOM HE DEALT. 

IN ALL INSTANCES, HOWEVER, WHETHER INVOLVING SALES TO SAN FRANCISCO
OR TO OUT-OF-TOWN DEALERS AND WHETHER THROUGH IDENTIFIED OR
UNIDENTIFIED SELLING INTERMEDIARIES, THE SALES FOLLOWED THE GENERAL
PATTERN DESCRIBED ABOVE.  THAT IS, ONCE THE UNDERSTANDING HAD BEEN
REACHED, THE PURCHASER MADE OUT HIS CHECK AT THE PRICE OF $24.50 PER
CASE, TO THE ORDER OF "FRANCISCO DISTRIBUTING CO.," AT THE DIRECTION OF
THE SELLING INTERMEDIARY, TO WHOM THE CHECK WAS DELIVERED; AT THE SAME
TIME OR LATER THE PURCHASER ALSO PAID IN CASH TO THE INTERMEDIARY THE
DIFFERENCE BETWEEN THE AMOUNT OF THE CHECK AND THE AGREED OVERCEILING
PURCHASE PRICE; THEN OR LATER THE PURCHASER RECEIVED INVOICES IN THE
NAME OF FRANCISCO FOR THE NUMBER OF CASES OF OLD MR. BOSTON ROCKING
CHAIR WHISKEY BOUGHT, SHOWING ONLY THE LEGAL PRICE OF $24.50 PER CASE;
AND THEREAFTER THE PURCHASER RECEIVED DELIVERY OF THE WHISKEY FROM THE
WAREHOUSE COMPANY, BY FREIGHT IN THE CASE OF OUT-OF-TOWN BUYERS.  WEISS
GAVE THE WAREHOUSE COMPANY INSTRUCTIONS FOR SHIPMENTS OR LOCAL
DELIVERIES.  FRANCISCO COLLECTED THE CHECKS BY ENDORSING AND SENDING
THEM THROUGH ITS BANK FOR COLLECTION.  SLIGHT VARIATIONS IN DETAIL OF
THE PATTERN APPEAR IN SOME INSTANCES BUT THEY ARE INSIGNIFICANT FOR OUR
PURPOSES. 

THE FOREGOING IS SUBSTANTIALLY THE EVIDENCE USED, NOT ONLY IN PART TO
SHOW THE CONSPIRACY, BUT ALSO TO CONNECT BLUMENTHAL, FEIGENBAUM AND
ABEL WITH IT.  IN ADDITION TO THE EVIDENCE ALREADY RELATED AS IT
AFFECTS GOLDSMITH AND WEISS, THE COURT RECEIVED AS TO THEM ALONE THE
TESTIMONY OF HARKINS, A SPECIAL INVESTIGATOR FOR THE ALCOHOL TAX UNIT
OF THE TREASURY DEPARTMENT.  HE RELATED CONVERSATIONS HAD WITH
GOLDSMITH AND WEISS, DURING WHICH IMPORTANT ADMISSIONS WERE MADE BY ONE
OR THE OTHER OR BOTH.  THOSE ADMISSIONS GIVE RISE TO THE CRUCIAL
PROBLEMS IN THE CASE. 

AT THE INITIAL CONFERENCE "EARLY IN JANUARY," 1944, ATTENDED BY BOTH
GOLDSMITH AND WEISS, THE LATTER "DID MOST OF THE TALKING."  QUESTIONED
CONCERNING WHO PURCHASED THE TWO CARLOADS AND HOW THEY WERE HANDLED,
WEISS SAID "THAT HIS FIRM RECEIVED $2.00 A CASE FOR CLEARING IT THROUGH
THEIR BOOKS."  GOLDSMITH CONCURRED IN THIS AND BOTH STATED THAT THEY
DIVIDED THE $2.00, EACH TAKING A DOLLAR.  "THEY BOTH STATED, AGREED,
THAT THEY DID NOT SELL ANY OF THE WHISKEY.  IT WAS SOLD BY OTHERS, AND
THEY RECEIVED THE CHECK GENERALLY FOR THE PAYMENT OF (FOR) THE WHISKEY
IN ADVANCE OF THE DATE THAT THEY HAD TO TAKE UP THE SIGHT DRAFT BILLS
OF LADING.  AT THAT TIME THEY DID NOT TELL US WHO ACTUALLY SOLD THE
WHISKEY." 

LATER CONFERENCES HELD SEPARATELY WITH GOLDSMITH AND WEISS SIMPLY
CONFIRMED THE SUBSTANCE OF THE FIRST TO THE EFFECT THAT FRANCISCO WAS
NOT THE ACTUAL OWNER, BUT THAT GOLDSMITH AND WEISS WERE ACTING FOR AN
UNIDENTIFIED PERSON IN HANDLING THE SHIPMENTS IN FRANCISCO'S NAME.  FN4
THE IDENTITY OF THE OWNER WAS NOT ESTABLISHED.  BUT GOLDSMITH ADDED
THE ADMISSION THAT HE WROTE MOST OF THE INVOICES. 

SHORTLY AFTER THE TRIAL BEGAN THE COURT ANNOUNCED THAT IT WOULD SAVE
TIME AND BE FAIRER TO ALL FOR THE EVIDENCE TO BE RECEIVED INITIALLY
ONLY AS AGAINST THE PARTICULAR DEFENDANT OR DEFENDANTS TO WHOM IT
APPEARED EXPRESSLY RELATED, RESERVING TO THE GOVERNMENT, HOWEVER, THE
RIGHT TO MOVE FOR ITS ADMISSION AS AGAINST ANY OR ALL OF THE OTHER
DEFENDANTS WHENEVER IN THE GOVERNMENT'S OPINION SUFFICIENT FACTS HAD
BEEN INTRODUCED TO SHOW SUCH DEFENDANTS TO HAVE BEEN CONNECTED WITH THE
CONSPIRACY CHARGED. 

THIS COURSE WAS FOLLOWED.  AT THE CLOSE OF THE GOVERNMENT'S CASE, THE
COURT GRANTED ITS MOTION TO ADMIT ALL OF THE EVIDENCE AS AGAINST ALL OF
THE DEFENDANTS, EXCEPT THAT IT DECLINED TO ALLOW HARKINS' TESTIMONY
CONCERNING HIS CONVERSATIONS WITH GOLDSMITH AND WEISS TO BE ADMITTED AS
AGAINST THE DEFENDANTS BLUMENTHAL, FEIGENBAUM AND ABEL.  THAT TESTIMONY
HOWEVER WAS ALLOWED TO STAND AGAINST BOTH GOLDSMITH AND WEISS INSOFAR
AS IT RELATED THE CONVERSATION HAD IN THE PRESENCE OF BOTH, AND AS TO
EACH OF THEM RESPECTIVELY TO THE EXTENT THAT THE OTHER INTERVIEWS TOOK
PLACE IN HIS PRESENCE. 

THE COURT OVERRULED NUMEROUS OBJECTIONS TO THESE RULINGS BY EACH
DEFENDANT.  NONE OFFERED EVIDENCE IN HIS OWN BEHALF. 

FOLLOWING ITS RULINGS ON ADMISSIBILITY, THE TRIAL COURT CONCLUDED AS
AGAINST VARIOUS OBJECTIONS THAT THE EVIDENCE WAS SUFFICIENT TO GO TO
THE JURY ON THE ISSUES WHETHER THE CONSPIRACY CHARGED HAD BEEN MADE OUT
AND CONCERNING EACH DEFENDANT'S CONNECTION WITH IT.  ACCORDINGLY, IT
OVERRULED THE DEFENDANTS' MOTIONS FOR DIRECTED VERDICTS AND SUBMITTED
THE CASE TO THE JURY.  IN THE INSTRUCTIONS THE COURT EXPRESSLY STATED,
IN ACCORDANCE WITH THE PREVIOUS RULINGS ON ADMISSIBILITY, THAT HARKINS'
TESTIMONY WAS TO BE CONSIDERED ONLY AS AGAINST GOLDSMITH AND WEISS, NOT
AS AGAINST THE OTHER THREE DEFENDANTS. 

                                 II. 

IN THE KOTTEAKOS CASE, SUPRA, THE GOVERNMENT CONCEDED THAT, UNDER THE
CHARGE OF A SINGLE, ALL-INCLUSIVE CONSPIRACY, THE PROOF SHOWED DISTINCT
AND SEPARATE ONES CONNECTED ONLY BY THE FACT THAT ONE MAN, BROWN, WAS A
PARTICIPANT AND KEY FIGURE IN ALL.  BUT IT URGED THAT UNDER THE RULING
IN BERGER V. UNITED STATES, 295 U.S. 78, THE VARIANCE WAS AT THE MOST
HARMLESS ERROR, A CONTENTION WE REJECTED.  HERE THE SITUATION IS THE
REVERSE.  THE GOVERNMENT HAS CONCEDED, IN EFFECT, THAT PREJUDICE HAS
RESULTED IF MORE THAN ONE CONSPIRACY HAS BEEN PROVED.  FN5  BUT IT
INSISTS THAT THE EVIDENCE ESTABLISHES A SINGLE CONSPIRACY AND NO MORE,
AN ISSUE NOT PRESENTED OR DETERMINED IN THE KOTTEAKOS CASE. 

THE PROOF, IN RELATION TO WHETHER ONE OR MORE CONSPIRACIES WERE SHOWN
AS WELL AS RELATIVE TO WHETHER ANY WAS MADE OUT, REQUIRES SOMEWHAT
DIFFERENT TREATMENT CONCERNING THE TWO GROUPS OF DEFENDANTS, WEISS AND
GOLDSMITH, ON THE ONE HAND, AND BLUMENTHAL, FEIGENBAUM AND ABEL, ON THE
OTHER.  THIS IS BY REASON OF THE COURT'S EXCLUSION OF THE ADMISSIONS OF
GOLDSMITH AND WEISS FROM CONSIDERATION AS TO THE OTHER THREE
DEFENDANTS. 

THE GOVERNMENT DOES NOT MAINTAIN THAT FRANCISCO, OR GOLDSMITH (OR
THEREFORE WEISS), WAS THE OWNER OF THE WHISKEY.  IT ACCEPTS THE VIEW
THAT ANOTHER OR OTHERS, UNIDENTIFIED, WERE THE REAL OWNER OR OWNERS AND
THAT FRANCISCO (AND THUS GOLDSMITH AND WEISS) WAS MERELY A CHANNEL FOR
DISTRIBUTING THE LIQUOR AND GIVING THAT UNLAWFUL PROCESS A LEGAL
FACADE.  INDEED THE "INNOCENT APPEARING ACTIONS" OF WEISS AND GOLDSMITH
IN THEIR USE OF FRANCISCO, THE BRIEF ASSERTS, "WERE THE CRUX OF THE
CONSPIRACY  ...  SINCE THE COLOR OF LEGITIMACY WAS AN ESSENTIAL PART OF
THE PLAN TO DISPOSE OF THE LIQUOR TO TAVERN OWNERS AT OVER-CEILING
PRICES."  FN6 

THE EVIDENCE INCLUDING THE ADMISSIONS WAS CLEARLY SUFFICIENT TO
ESTABLISH THAT THE OWNER DEVISED A PLAN WHICH CONTEMPLATED THE ENTIRE
CHAIN OF EVENTS FROM THE ORIGINAL PURCHASE IN FRANCISCO'S NAME TO THE
ULTIMATE BLACK MARKET SALES AND DELIVERIES.  THIS INCLUDES THE OBVIOUS
INFERENCE THAT HE MADE THE ARRANGEMENTS FOR CLEARANCE THROUGH
FRANCISCO'S BOOKS.  SINCE GOLDSMITH AND WEISS WERE THE OWNER AND SALES
MANAGER RESPECTIVELY OF FRANCISCO AND HAD ACTIVE PARTS PERSONALLY IN
CARRYING OUT THOSE ARRANGEMENTS, THERE HARDLY CAN BE ANY QUESTION THAT
THEY KNEW THE OWNER, HAD PART IN MAKING THE ARRANGEMENTS WITH HIM AND,
BY VIRTUE OF THOSE FACTS AND THEIR PARTS IN FACILITATING THE SALES AND
DELIVERIES TO THE TAVERNKEEPERS, KNEW ALSO OF HIS INTENTION TO RESELL
THE WHISKEY AND OF HIS PLAN FOR DOING SO IN EVERY MATERIAL RESPECT
EXCEPT THAT HE INTENDED TO SELL AT OVER-CEILING PRICES.    THE SHOWING
ON THAT CRUCIAL QUESTION WAS ENTIRELY CIRCUMSTANTIAL.  IT WAS
NONETHELESS SUBSTANTIAL.  GOLDSMITH AND WEISS KNEW THAT THERE WAS A
MARGIN OF ONLY ABOUT 77[ BETWEEN THE LEGAL PRICE CEILING AND THE $24.50
PER CASE THEY RECEIVED BY CHECK IN PAYMENT FOR THE WHISKEY.  FN7 THEY
KNEW THAT THE INVOICES SENT BY FRANCISCO TO EACH PURCHASER GAVE NO ROOM
FOR EVEN THAT SLENDER MARGIN BUT REPRESENTED ONLY THE OWNER'S COST
FIGURE.  THEY KNEW FURTHER THAT BY USING FRANCISCO'S NAME, SERVICES AND
FACILITIES THE OWNER WAS CONCEALING HIS IDENTITY FROM THE PURCHASERS IN
THE SALES, MAKING FRANCISCO APPEAR AS THE OWNER ON THE PAPER RECORDS;
THAT SALES WERE BEING MADE TO NUMEROUS AND WIDELY SCATTERED
TAVERNKEEPERS; AND THAT IN EVERY SALE REMITTANCE WAS MADE TO THEM
UNIFORMLY NOT ONLY BY CHECK, USUALLY OF THE PURCHASER, BUT ALSO IN THE
EXACT AMOUNT OF $24.50 PER CASE. 

THE INFERENCE THAT THE UNKNOWN OWNER WAS GIVING AWAY THE LIQUOR IS
SCARCELY CONCEIVABLE.  THE MOST LIKELY INFERENCES TO BE DRAWN WERE TWO,
NAMELY, THAT THE OWNER WAS SELLING FOR A LEGAL MARGIN OF NOT MORE THAN
77[ OR THAT HE WAS SELLING AT OVER-CEILING PRICES.  THE FIRST INFERENCE
IS HARDLY TENABLE, ESPECIALLY IN VIEW OF THE PREVAILING AND WIDESPREAD
SHORTAGE AND DEMAND, WITH ACCOMPANYING BLACK MARKET ACTIVITY, OF WHICH
THE MOST METICULOUS WHOLESALE LIQUOR DEALER HARDLY COULD HAVE BEEN
IGNORANT.  THE INFERENCE WAS NOT ONLY JUSTIFIED, IT WAS ALMOST
INESCAPABLE, THAT GOLDSMITH AND WEISS KNEW OF THE OWNER'S INTENT AND
PURPOSE TO SELL ABOVE THE LAWFUL PRICE, AS WELL AS MOST OF THE DETAIL
OF HIS PLAN FOR DOING SO.  WITH THAT KNOWLEDGE THEIR ACTIVE AID TOWARD
EXECUTING HIS DESIGN MADE THEM CO-CONSPIRATORS WITH HIM, AND HE WITH
THEM, TOWARD ACCOMPLISHING IT.

        III. 

IT REMAINS HOWEVER TO CONSIDER WHETHER, WITHOUT THE ADMISSIONS,
BLUMENTHAL, FEIGENBAUM AND ABEL HAVE BEEN SHOWN TO HAVE CONSPIRED
TOGETHER AND WITH GOLDSMITH AND WEISS IN THE SCHEME PROVED AGAINST THE
LATTER TWO. 

THE ADMISSIONS ALONE DISCLOSED THE UNKNOWN OWNER'S EXISTENCE; THAT
GOLDSMITH AND WEISS WERE ACTING FOR HIM, NOT FOR THEMSELVES; RECEIVED
FROM THE TRANSACTIONS, AND DIVIDED EQUALLY, THE $2 PER CASE; AND GAVE
THE USE OF FRANCISCO'S NAME TO COVER UP THE UNKNOWN OWNER'S EXISTENCE,
IDENTITY AND PART IN THE SCHEME. 

WHETHER OR NOT THE EVIDENCE STRIPPED OF THOSE FACTS WAS SUFFICIENT TO
SUSTAIN THE CHARGE, A PRELIMINARY QUESTION ARISES UPON THE TRIAL
COURT'S DISPOSITION OF THE ADMISSIONS.  THEY SUPPLIED STRONG
CONFIRMATORY OR SUPPLEMENTING PROOF TO SHOW, NOT ONLY THE CONNECTIONS
OF GOLDSMITH AND WEISS WITH THE SCHEME, BUT ALSO ITS EXISTENCE AND
ILLEGAL CHARACTER.  IF THEREFORE IT WERE SHOWN, OR EVEN WERE DOUBTFUL,
THAT THE ADMISSIONS HAD BEEN IMPROPERLY RECEIVED AS AGAINST BLUMENTHAL,
FEIGENBAUM AND ABEL, REVERSAL WOULD BE REQUIRED AS TO THEM.  FN8 

BUT THE TRIAL COURT'S RULINGS, BOTH UPON ADMISSIBILITY  FN9  AND IN
THE INSTRUCTIONS,  FN10 LEAVE NO ROOM FOR DOUBT THAT THE ADMISSIONS
WERE ADEQUATELY EXCLUDED, INSOFAR AS THIS COULD BE DONE IN A JOINT
TRIAL, FROM CONSIDERATION ON THE QUESTION OF THEIR GUILT.  THE RULINGS
TOLD THE JURY PLAINLY TO DISREGARD THE ADMISSIONS ENTIRELY, IN EVERY
PHASE OF THE CASE, IN DETERMINING THAT QUESTION.  FN11  THE DIRECTION
WAS A TOTAL EXCLUSION, NOT SIMPLY A PARTIAL ONE AS THE GOVERNMENT'S
ARGUMENT SEEMS TO IMPLY.  FN12  THE COURT MIGHT HAVE BEEN MORE
EMPHATIC.  BUT WE CANNOT SAY ITS UNAMBIGUOUS DIRECTION WAS INADEQUATE. 
NOR CAN WE ASSUME THAT THE JURY MISUNDERSTOOD OR DISOBEYED IT. 

WITH THE ADMISSIONS THUS ENTIRELY EXCLUDED, WE THINK NEVERTHELESS
THAT THE REMAINING EVIDENCE WAS SUFFICIENT TO SHOW, IN ACCORDANCE WITH
THE CHARGE, THAT THE FIVE DEFENDANTS JOINED IN A SINGLE CONSPIRACY TO
SELL THE WHISKEY AT OVER-CEILING PRICES IN THE GUISE OF LEGAL SALES. 
WE SET FORTH IN THE MARGIN THE REMAINING EVIDENCE, IN PART, WHICH
JUSTIFIES THIS CONCLUSION BOTH AS TO GOLDSMITH AND WEISS  FN13  AND AS
TO THE OTHER THREE DEFENDANTS.  FN14 

THE MAIN DIFFERENCE COMES WITH THE ELIMINATION OF THE UNKNOWN OWNER
FROM VIEW, AND FRANCISCO'S CONSEQUENT APPEARANCE AS BOTH ACTUAL AND
LEGAL OWNER.  THIS CHANGES THE DETAIL OF THE FACADE, BUT DOES NOT
REMOVE EITHER THE FACADE ITSELF OR THE ESSENCE OF THE UNLAWFUL SCHEME. 
THAT STILL WAS TO SELL THE WHISKEY ILLEGALLY IN THE GUISE OF LEGAL
SALES,  FN15  TO THE KNOWLEDGE OF EACH DEFENDANT.  FN16  THE GIST OF
THE CONSPIRACY LAY NOT IN WHO ACTUALLY OWNED THE WHISKEY, BUT IN THE
AGREEMENT TO SELL IT IN THIS UNLAWFUL FASHION, REGARDLESS OF WHO MIGHT
OWN IT. 

WITH THE CASE THUS POSITED, IT IS TRUE THE SALESMEN DID NOT KNOW OF
THE UNKNOWN OWNER'S EXISTENCE OR PART IN THE PLAN.  AND IN A
HYPERTECHNICAL ASPECT THE CASE AS A WHOLE MIGHT BE REGARDED AS SHOWING
IN ONE PHASE AN AGREEMENT AMONG GOLDSMITH, WEISS AND THE UNKNOWN OWNER,
X, AND IN THE OTHER AN AGREEMENT AMONG THE FIVE DEFENDANTS TO WHICH X
WAS NOT A PARTY.  THUS IN THE MOST METICULOUS SENSE IT MIGHT BE
REGARDED AS DISCLOSING TWO AGREEMENTS, WITH GOLDSMITH AND WEISS AS
FIGURES COMMON TO BOTH. 

INDEED THAT MAY BE WHAT TOOK PLACE CHRONOLOGICALLY, FOR CONSPIRACIES
INVOLVING SUCH ELABORATE ARRANGEMENTS GENERALLY ARE NOT BORN FULL
GROWN.  RATHER THEY MATURE BY SUCCESSIVE STAGES WHICH ARE NECESSARY TO
BRING IN THE ESSENTIAL PARTIES.  AND NOT ALL OF THOSE JOINING IN THE
EARLIER ONES MAKE KNOWN THEIR PARTICIPATION TO OTHERS LATER COMING IN. 

THE LAW DOES NOT DEMAND PROOF OF SO MUCH.  FOR IT IS MOST OFTEN TRUE,
ESPECIALLY IN BROAD SCHEMES CALLING FOR THE AID OF MANY PERSONS, THAT
AFTER DISCOVERY OF ENOUGH TO SHOW CLEARLY THE ESSENCE OF THE SCHEME AND
THE IDENTITY OF A NUMBER PARTICIPATING, THE IDENTITY AND THE FACT OF
PARTICIPATION OF OTHERS REMAIN UNDISCOVERED AND UNDISCOVERABLE. 
SECRECY AND CONCEALMENT ARE ESSENTIAL FEATURES OF SUCCESSFUL
CONSPIRACY.  THE MORE COMPLETELY THEY ARE ACHIEVED, THE MORE SUCCESSFUL
THE CRIME.  HENCE THE LAW RIGHTLY GIVES ROOM FOR ALLOWING THE
CONVICTION OF THOSE DISCOVERED UPON SHOWING SUFFICIENTLY THE ESSENTIAL
NATURE OF THE PLAN AND THEIR CONNECTIONS WITH IT, WITHOUT REQUIRING
EVIDENCE OF KNOWLEDGE OF ALL ITS DETAILS OR OF THE PARTICIPATION OF
OTHERS.  FN17  OTHERWISE THE DIFFICULTIES, NOT ONLY OF DISCOVERY, BUT
OF CERTAINTY IN PROOF AND OF CORRELATING PROOF WITH PLEADING WOULD
BECOME INSUPERABLE, AND CONSPIRATORS WOULD GO FREE BY THEIR VERY
INGENUITY. 

HERE, APART FROM THE WEIGHT WHICH THE PROOF OF THE UNKNOWN OWNER'S
EXISTENCE AND PARTICIPATION ADDED TO THE CONVICTIONS OF WEISS AND
GOLDSMITH, IT ADDED NO ESSENTIAL FEATURE TO THE CHARGE AGAINST THE FIVE
DEFENDANTS.  THE WHISKEY WAS THE SAME.  THE AGREEMENTS RELATED ALIKE TO
ITS DISPOSITION.  THEY COMPREHENDED ILLEGAL SALES IN THE GUISE OF LEGAL
ONES.  WHO OWNED THE WHISKEY WAS IRRELEVANT TO THE BASIC PLAN AND ITS
ESSENTIAL ILLEGALITY.  IT WAS A MATTER OF INDIFFERENT DETAIL TO THE
SALESMEN, AS BY THE SAME TOKEN WAS THE FACT THAT GOLDSMITH AND WEISS
WERE RECEIVING AND SPLITTING ONLY THE $2 PER CASE.  IT MATTERED NOTHING
TO THE OTHERS WHETHER THOSE TWO RECEIVED ONLY THAT AMOUNT OR THE LARGER
ILLEGAL SUMS. 

WE THINK THAT IN THE SPECIAL CIRCUMSTANCES OF THIS CASE THE TWO
AGREEMENTS WERE MERELY STEPS IN THE FORMATION OF THE LARGER AND
ULTIMATE MORE GENERAL CONSPIRACY.  IN THAT VIEW IT WOULD BE A
PERVERSION OF JUSTICE TO REGARD THE SALESMEN'S IGNORANCE OF THE UNKNOWN
OWNER'S PARTICIPATION AS FURNISHING ADEQUATE GROUND FOR REVERSAL OF
THEIR CONVICTIONS.  NOR DOES ANYTHING IN THE KOTTEAKOS DECISION REQUIRE
THIS.  THE SCHEME WAS IN FACT THE SAME SCHEME; THE SALESMEN KNEW OR
MUST HAVE KNOWN THAT OTHERS UNKNOWN TO THEM WERE SHARING IN SO LARGE A
PROJECT; AND IT HARDLY CAN BE SUFFICIENT TO RELIEVE THEM THAT THEY DID
NOT KNOW, WHEN THEY JOINED THE SCHEME, WHO THOSE PEOPLE WERE OR EXACTLY
THE PARTS THEY WERE PLAYING IN CARRYING OUT THE COMMON DESIGN AND
OBJECT OF ALL.  BY THEIR SEPARATE AGREEMENTS, IF SUCH THEY WERE, THEY
BECAME PARTIES TO THE LARGER COMMON PLAN, JOINED TOGETHER BY THEIR
KNOWLEDGE OF ITS ESSENTIAL FEATURES AND BROAD SCOPE, THOUGH NOT OF ITS
EXACT LIMITS, AND BY THEIR COMMON SINGLE GOAL. 

THE CASE THEREFORE IS VERY DIFFERENT FROM THE FACTS ADMITTED TO EXIST
IN THE KOTTEAKOS CASE.  APART FROM THE MUCH LARGER NUMBER OF AGREEMENTS
THERE INVOLVED, NO TWO OF THOSE AGREEMENTS WERE TIED TOGETHER AS STAGES
IN THE FORMATION OF A LARGER ALL-INCLUSIVE COMBINATION, ALL DIRECTED TO
ACHIEVING A SINGLE UNLAWFUL END OR RESULT.  ON THE CONTRARY EACH
SEPARATE AGREEMENT HAD ITS OWN DISTINCT, ILLEGAL END.  EACH LOAN WAS AN
END IN ITSELF, SEPARATE FROM ALL OTHERS, ALTHOUGH ALL WERE ALIKE IN
HAVING SIMILAR ILLEGAL OBJECTS.  EXCEPT FOR BROWN, THE COMMON FIGURE,
NO CONSPIRATOR WAS INTERESTED IN WHETHER ANY LOAN EXCEPT HIS OWN WENT
THROUGH.  AND NONE AIDED IN ANY WAY, BY AGREEMENT OR OTHERWISE, IN
PROCURING ANOTHER'S LOAN.  THE CONSPIRACIES THEREFORE WERE DISTINCT AND
DISCONNECTED, NOT PARTS OF A LARGER GENERAL SCHEME, BOTH IN THE PHASE
OF AGREEMENT WITH BROWN AND ALSO IN THE ABSENCE OF ANY AID GIVEN TO
OTHERS AS WELL AS IN SPECIFIC OBJECT AND RESULT.  THERE WAS NO DRAWING
OF ALL TOGETHER IN A SINGLE, OVER-ALL, COMPREHENSIVE PLAN. 

HERE THE CONTRARY IS TRUE.  ALL KNEW OF AND JOINED IN THE OVERRIDING
SCHEME.  ALL INTENDED TO AID THE OWNER, WHETHER FRANCISCO OR ANOTHER,
TO SELL THE WHISKEY UNLAWFULLY, THOUGH THE TWO GROUPS OF DEFENDANTS
DIFFERED ON THE PROOF IN KNOWLEDGE AND BELIEF CONCERNING THE OWNER'S
IDENTITY.  ALL BY REASON OF THEIR KNOWLEDGE OF THE PLAN'S GENERAL
SCOPE, IF NOT ITS EXACT LIMITS, SOUGHT A COMMON END, TO AID IN
DISPOSING OF THE WHISKEY.  TRUE, EACH SALESMAN AIDED IN SELLING ONLY
HIS PART.  BUT HE KNEW THE LOT TO BE SOLD WAS LARGER AND THUS THAT HE
WAS AIDING IN A LARGER PLAN.  HE THUS BECAME A PARTY TO IT AND NOT
MERELY TO THE INTEGRATING AGREEMENT WITH WEISS AND GOLDSMITH. 

WE THINK THEREFORE THAT IN EVERY PRACTICAL SENSE THE UNIQUE FACTS OF
THIS CASE REVEAL A SINGLE CONSPIRACY OF WHICH THE SEVERAL AGREEMENTS
WERE ESSENTIAL AND INTEGRAL STEPS, AND ACCORDINGLY THAT THE JUDGMENTS
SHOULD BE AFFIRMED. 

THE GRAVE DANGER IN THIS CASE, IF ANY, AROSE NOT FROM THE TRIAL
COURT'S RULINGS UPON ADMISSIBILITY OR FROM ITS INSTRUCTIONS TO THE
JURY.  AS WE HAVE SAID, THESE WERE AS ADEQUATE AS MIGHT REASONABLY BE
REQUIRED IN A JOINT TRIAL.  THE DANGER RESTED RATHER IN THE RISK THAT
THE JURY, IN DISREGARD OF THE COURT'S DIRECTION, WOULD TRANSFER,
CONSCIOUSLY OR UNCONSCIOUSLY, THE EFFECT OF THE EXCLUDED ADMISSIONS
FROM THE CASE AS MADE AGAINST GOLDSMITH AND WEISS ACROSS THE BARRIER OF
THE EXCLUSION TO THE OTHER THREE DEFENDANTS. 

THAT DANGER WAS REAL.  IT IS ONE LIKELY TO ARISE IN ANY CONSPIRACY
TRIAL AND MORE LIKELY TO OCCUR AS THE NUMBER OF PERSONS CHARGED
TOGETHER INCREASES.  PERHAPS EVEN AT BEST THE SAFEGUARDS PROVIDED BY
CLEAR RULINGS ON ADMISSIBILITY, LIMITATIONS OF THE BEARING OF EVIDENCE
AS AGAINST PARTICULAR INDIVIDUALS, AND ADEQUATE INSTRUCTIONS, ARE
INSUFFICIENT TO WARD OFF THE DANGER ENTIRELY.  IT IS THEREFORE
EXTREMELY IMPORTANT THAT THOSE SAFEGUARDS BE MADE AS IMPREGNABLE AS
POSSIBLE.  HERE, HOWEVER, THE CASE AS PRESENTED INVOLVED NONE OF THE
RISKS COMMON TO MASS TRIALS.  AND, IN VIEW OF THE TRIAL COURT'S
CAUTION, THE RISK OF TRANSFERENCE OF GUILT OVER THE BORDER OF
ADMISSIBILITY WAS REDUCED TO THE MINIMUM.  SO GREAT WAS THE COURT'S
CONCERN THAT IT EXPRESSLY TOLD THE JURY, IN ADDITION TO THE
INSTRUCTIONS SET FORTH ABOVE, "  ...  THE GUILT OR INNOCENCE OF EACH
DEFENDANT MUST BE DETERMINED BY THE JURY SEPARATELY.  EACH DEFENDANT
HAS THE SAME RIGHT TO THAT KIND OF CONSIDERATION ON YOUR PART AS IF HE
WERE BEING TRIED ALONE." 

WE HAVE CONSIDERED PETITIONERS' REMAINING CONTENTIONS AND FIND THEM
WITHOUT MERIT.  FN18 

THE JUDGMENT IS AFFIRMED. 

FN1  OF THE MORE THAN 4,000 CASES RECEIVED BY FRANCISCO, PROOF
CONCERNING DISPOSITION AT OVER-CEILING PRICES RELATED TO LESS THAN
HALF, OR SOME 1,500-PLUS CASES. 

FN2  CONSISTING OF $19.24 PER CASE TO THE DISTILLER, 81[ FOR FREIGHT,
AND $1.92 FOR STATE TAXES. 

FN3  THE WITNESSES IDENTIFYING FEIGENBAUM TESTIFIED THEY SOUGHT HIM
OUT AT THE SUNSET DRUGSTORE IN SAN FRANCISCO AND MADE THE ARRANGEMENTS
WITH HIM FOR THEIR PURCHASES THERE.  SIMILAR TESTIMONY WAS GIVEN BY
THOSE IDENTIFYING BLUMENTHAL WITH THE ARRANGEMENTS TAKING PLACE IN THE
SPORTORIUM. 

IN SOME INSTANCES THE OUT-OF-TOWN PURCHASING WITNESSES TESTIFIED THAT
THEY WENT TO SAN FRANCISCO IN SEARCH OF WHISKEY TO BUY AND BY ONE MEANS
OR ANOTHER, USUALLY THROUGH INQUIRY OF PERSONS FREQUENTING BARS WHERE
THE WITNESSES STOPPED, WERE DIRECTED TO THE SELLING AGENT.  IN OTHER
INSTANCES THE INTERMEDIARY SOUGHT OUT THE TAVERNKEEPER AS A PROSPECTIVE
PURCHASER AT HIS PLACE OF BUSINESS. 

FN4  AT AN INTERVIEW WITH GOLDSMITH "EARLY IN SEPTEMBER," GOLDSMITH
WAS ASKED "WHO ACTUALLY BOUGHT HIM THE WHISKEY, WHO OWNED IT."  IN
REPLY "HE SAID THAT BLUMENTHAL BROUGHT IT IN, AND WHEN ASKED IF HE KNEW
OF HIS OWN KNOWLEDGE, HE SAID, 'NO.'"  HE AGAIN STATED THAT FRANCISCO
RECEIVED $2 PER CASE, OF WHICH HE GAVE WEISS HALF. 

A STILL FURTHER QUESTIONING OF GOLDSMITH TOOK PLACE ON SEPTEMBER 13. 
HARKINS SHOWED GOLDSMITH SEVERAL INVOICES GIVEN TO PURCHASERS IN THE
NAME OF FRANCISCO.  GOLDSMITH ADMITTED THAT HE WROTE MOST OF THE
INVOICES AND IDENTIFIED HIS OWN HANDWRITING, STATING HOWEVER THAT A FEW
WERE WRITTEN BY HIS BOOKKEEPER. 

HARKINS TESTIFIED ALSO REGARDING A CONVERSATION WITH WEISS ON MAY 14,
1944.  IN THIS WEISS STATED "IT WAS TRUE THAT HE RECEIVED HALF OF THE
$2 COMMISSION PAID TO THE FRANCISCO DISTRIBUTING COMPANY FOR CLEARING
THIS WHISKEY THROUGH THEIR BOOKS, AND HE FINALLY REFUSED TO ANSWER WHO
ACTUALLY OWNED THE WHISKEY.  HE SAID 'I DON'T WANT TO INVOLVE
MYSELF.'"  WEISS ALSO ADMITTED KNOWING BLUMENTHAL, BUT "REFUSED TO
STATE, TO THE BEST OF MY (THE WITNESS') RECOLLECTION, POSITIVELY,
WHETHER MR. BLUMENTHAL WAS THE OWNER OF THE WHISKEY OR NOT."    FN5
THE BRIEF STATES:  "THE GOVERNMENT DOES NOT CONTEND THAT IF THE PROOF
SHOWED SEVERAL CONSPIRACIES, AS THE DISSENTING JUDGE THOUGHT, THE
VARIANCE WOULD NOT BE PREJUDICIAL." 

FN6  THE BRIEF ALSO DECLARES THAT "THE GIST OF THE CONSPIRACY  ...
WAS THE SCHEME TO SELL LIQUOR TO TAVERN OWNERS AT OVER-CEILING PRICES
IN AN APPARENTLY LEGITIMATE FASHION THROUGH THE MEDIUM OF FRANCISCO." 

THE PLAN, IT IS SAID, "WAS NOT MERELY TO SELL LIQUOR AT OVER-CEILING
PRICES; IT WAS A PLAN TO SELL LIQUOR AT OVER-CEILING PRICES IN AN
APPARENTLY LEGITIMATE FASHION" AND "THE CORE OF THE SCHEME WAS THE
ARRANGEMENT BY WHICH THE WHISKEY WOULD CLEAR TO TAVERN OWNERS THROUGH
FRANCISCO, A LEGITIMATE WHOLESALER." 

FN7  THE $24.50 PRICE WAS AT THE MOST 53[ ABOVE THE ACTUAL COST OF
THE WHISKEY, SEE NOTE 2, PLUS THE $2.00 FEE PAID FRANCISCO FOR THE USE
OF ITS BOOKS.  THERE IS NO EVIDENCE THAT THE UNKNOWN OWNER RECEIVED ANY
PORTION OF THIS 53[ MARGIN.  SINCE THE RECORD SHOWS THAT FRANCISCO WAS
BILLED BY THE WAREHOUSE COMPANY FOR THE STORAGE OF THE LIQUOR, THE
INFERENCE WAS FULLY JUSTIFIED THAT THE 53[ MARGIN WAS LARGELY
DISSIPATED BY THE STORAGE CHARGES AND OTHER OVERHEAD COSTS ATTRIBUTABLE
TO THE SALE OF THE WHISKEY AND THAT THE REMAINING SUM, IF ANY, WAS
RETAINED BY FRANCISCO. 

FN8  EVEN IF THE EVIDENCE WERE SUFFICIENT WITH THE ADMISSIONS
EXCLUDED, THEY WERE OF SUCH IMPORTANCE THAT IF ADMITTED IMPROPERLY THE
JURY MIGHT HAVE DRAWN ENTIRELY DIFFERENT INFERENCES FROM THE WHOLE
EVIDENCE INCLUDING THEM THAN FROM IT WITHOUT THEM. 

FN9  BEFORE SENDING THE CASE TO THE JURY THE COURT STATED IN ITS
PRESENCE AND FOR ITS BENEFIT THAT IT HAD GRANTED THE GOVERNMENT'S
MOTION TO ADMIT ALL THE EVIDENCE AGAINST ALL THE DEFENDANTS EXCEPT:
"THAT THE TESTIMONY OF THE LAST WITNESS, MR. HARKINS, IS ADMITTED IN
EVIDENCE AS AGAINST THE DEFENDANT GOLDSMITH AS TO THE CONVERSATION HAD
BY THE WITNESS WITH THE DEFENDANT GOLDSMITH; THAT HIS TESTIMONY IS
ADMITTED AS TO THE DEFENDANT WEISS WITH RESPECT TO CONVERSATIONS WITH
THE DEFENDANT WEISS; AND AS TO BOTH DEFENDANTS, GOLDSMITH AND WEISS, AS
TO ALL CONVERSATIONS AT WHICH BOTH DEFENDANTS, GOLDSMITH AND WEISS,
WERE PRESENT, AND EXCEPTIONS ARE NOTED AS TO THIS RULING ON BEHALF OF
ALL THE DEFENDANTS SEPARATELY."  THE COURT THEN ADDED, ON INQUIRY, THAT
COUNSEL WAS RIGHT IN TAKING THIS TO MEAN THAT THE HARKINS TESTIMONY
"DOES NOT AFFECT THE DEFENDANTS BLUMENTHAL AND THE OTHER TWO OR
THREE." 

FN10  AT THREE DISTINCT PLACES THE COURT MADE REFERENCES EITHER
GENERALLY AND ABSTRACTLY OR EXPRESSLY APPLICABLE TO THE ADMISSIONS. 

IN THE FIRST, AFTER STATING THAT THE TESTIMONY OF AN ACCOMPLICE OR CO
CONSPIRATOR AND ORAL ADMISSIONS OF A DEFENDANT MUST BE RECEIVED WITH
CAUTION, THE COURT SAID:  "IN THIS CASE  ... PROOF OF THE CONSPIRACY
CHARGED  ...  MUST BE MADE INDEPENDENT OF ADMISSIONS OF ANY DEFENDANT
MADE AFTER THE TERMINATION OF THE ALLEGED CONSPIRACY."  AT A LATER
POINT THE JURY WAS TOLD:  "  ... YOU MUST DISREGARD ENTIRELY ANY
TESTIMONY STRICKEN OUT BY THE COURT, OR ANY TESTIMONY TO WHICH AN
OBJECTION HAS BEEN SUSTAINED.  ...  TESTIMONY WHICH HAS BEEN ADMITTED
ONLY TO APPLY AS TO A SPECIFIED DEFENDANT MAY ONLY BE CONSIDERED BY YOU
AS TO THAT DEFENDANT AND NONE OTHER."  AND FINALLY NEAR THE END OF THE
INSTRUCTIONS, EXPRESSLY REFERRING TO THE ADMISSIONS OF GOLDSMITH AND
WEISS, THE COURT SAID:  "WHERE THE EXISTENCE OF A CRIMINAL CONSPIRACY
HAS BEEN SHOWN, EVERY ACT OR DECLARATION OF EACH MEMBER OF SUCH
CONSPIRACY, DONE OR MADE THEREAFTER PURSUANT TO THE CONCERTED PLAN AND
IN FURTHERANCE OF THE COMMON OBJECT, IS CONSIDERED THE ACT AND
DECLARATION OF ALL THE CONSPIRATORS, AND IS EVIDENCE AGAINST EACH OF
THEM.  ON THE OTHER HAND, AFTER A CONSPIRACY HAS COME TO AN END, EITHER
BY THE ACCOMPLISHMENT OF THE COMMON DESIGN, OR BY THE PARTIES
ABANDONING THE SAME, EVIDENCE OF ACTS OR DECLARATIONS THEREAFTER MADE
BY ANY OF THE CONSPIRATORS CAN BE CONSIDERED ONLY AS AGAINST THE PERSON
DOING SUCH ACTS OR MAKING SUCH STATEMENTS. 

"IN THAT CONNECTION, YOU WILL RECALL THAT I ADVISED YOU DURING THE
TRIAL OF THE CASE THAT THE STATEMENTS MADE BY THE DEFENDANTS GOLDSMITH
AND WEISS TO THE WITNESS HARKINS COULD ONLY BE CONSIDERED BY YOU AS
AGAINST THOSE TWO NAMED DEFENDANTS." 

FN11  IT IS NOT ENTIRELY CLEAR WHETHER THE WORDS "IN THAT
CONNECTION," ITALICIZED IN THE LAST PARAGRAPH OF NOTE 10, REFER ONLY TO
THE LAST OR TO BOTH OF THE PRECEDING SENTENCES, IN THE SPECIFIC CONTEXT
OF THE TWO PARAGRAPHS LAST QUOTED.  BUT WHEN THOSE STATEMENTS ARE TAKEN
IN CONJUNCTION WITH THE EARLIER ONES AND WITH THE COURT'S RULINGS ON
ADMISSIBILITY MADE IN THE JURY'S PRESENCE, WE THINK THE TOTAL EFFECT OF
THE INSTRUCTIONS WAS TO TELL THE JURY PLAINLY TO DISREGARD THE
ADMISSIONS ENTIRELY IN CONSIDERING THE GUILT OF BLUMENTHAL, FEIGENBAUM
AND ABEL. 

THIS VIEW, THOUGH APPARENTLY DIFFERING FROM THE GOVERNMENT'S, SEE
NOTE 12, IS REINFORCED BY THE FURTHER INSTRUCTION, IMMEDIATELY
FOLLOWING THE ONE LAST QUOTED IN NOTE 10, TO THE EFFECT THAT ADMISSIONS
OF A CONSPIRATOR NOT MADE IN EXECUTION OF THE COMMON DESIGN ARE NOT
EVIDENCE AGAINST ANY OF THE PARTIES OTHER THAN THE ONE MAKING THEM. 
THE ADMISSIONS HERE FELL CLEARLY IN THAT CATEGORY, SOME OF THEM BECAUSE
MADE AFTER TERMINATION OF THE CONSPIRACY, OTHERS BECAUSE THEY HAD NO
EFFECT TO FORWARD ITS OBJECT.  NONE WERE MADE IN FURTHERANCE OF THE
CONSPIRACY'S OBJECT.  CF. FISWICK V. UNITED STATES, 329 U.S. 211. 

FN12  ALTHOUGH WE ARE NOT SURE THE ARGUMENT GOES SO FAR, IT SEEMS TO
URGE, SEE NOTE 6 AND TEXT, THAT THE ADMISSIONS, AS WELL AS THE OTHER
EVIDENCE EXPRESSLY AFFECTING ONLY ONE OR SOME OF THE DEFENDANTS, WERE
ADMISSIBLE AND WERE RECEIVED, NOT MERELY AS AGAINST WEISS AND GOLDSMITH
ON THE WHOLE CASE BUT ALSO IN PART AS AGAINST THE OTHER THREE, THAT IS,
TO SHOW EVEN AS TO THEM THE EXISTENCE AND ILLEGAL CHARACTER OF THE
SCHEME, THOUGH NOT TO ESTABLISH THEIR CONNECTIONS WITH IT. WE DO NOT
READ THE RECORD AS SHOWING THIS WAS THE EFFECT OF THE TRIAL COURT'S
RULING. 

FN13  THE EVIDENCE AS TO THE UNKNOWN OWNER NO LONGER BEING IN THE
PICTURE, THE INFERENCE IS ALMOST IRRESISTIBLE THAT FRANCISCO WAS THE
OWNER.  ON ARRIVAL OF THE WHISKEY, TITLE WAS TAKEN IN FRANCISCO'S NAME,
IN WHICH THE SHIPPING DOCUMENTS WERE MADE OUT; SIGHT DRAFTS FOR THE TWO
CARLOADS WERE PAID, AT GOLDSMITH'S DIRECTION, FROM FRANCISCO'S BANK
ACCOUNT; AND THE WHISKEY WAS STORED AND DELIVERED BY THE WAREHOUSE
COMPANY IN ACCORDANCE WITH WEISS' DIRECTIONS. 

AT A TIME WHEN WHOLESALE LIQUOR DISTRIBUTORS WERE HARD PUT TO SUPPLY
EVEN LONG-ESTABLISHED CUSTOMERS, FRANCISCO SOLD ITS LIQUOR, THROUGH THE
MEDIUM OF SALESMEN WHO HAD NO PREVIOUS CONNECTION WITH THE FIRM AND
WERE NOT REGULARLY ENGAGED IN THE BUSINESS OF SELLING LIQUOR, TO
VARIOUS TAVERN OWNERS WHO HAD NOT PREVIOUSLY HAD DEALINGS WITH
FRANCISCO.  MOREOVER, THE SALES WERE BILLED AT A PRICE 77[ PER CASE
BELOW THE OPA CEILING, DESPITE THE FACT THAT TAVERN OWNERS AND OTHER
RETAIL DISTRIBUTORS CONSIDERED THEMSELVES FORTUNATE TO SECURE WHISKEY
AT THE FULL CEILING PRICE.  ALSO OF INTEREST ARE TAVERN OWNER FIGONE'S
OVER-CEILING PURCHASES, WHICH FOLLOWED THE PATTERN OF THE OTHER SALES,
EXCEPT IN THE IMPORTANT RESPECT THAT THEY WERE MADE AT THE FRANCISCO
OFFICE, BUT WITH A PERSON FIGONE COULD NOT IDENTIFY.  SEE TEXT SUPRA
FOLLOWING NOTE 3. 

WE ARE NOT PREPARED TO SAY THAT THE JURY WAS NOT JUSTIFIED IN
INFERRING FROM THIS EVIDENCE THAT GOLDSMITH AND WEISS, THE GUIDING
HANDS OF FRANCISCO, WERE WILLING TO MAKE THE SALES ONLY BECAUSE OF AN
ILLEGAL AGREEMENT WITH THE SALESMEN TO RECEIVE OVER-CEILING PRICES. 

THE CASE WOULD STAND LITTLE BETTER FOR GOLDSMITH AND WEISS UPON AN
INFERENCE THAT THEY SOLD TO SOME OTHER PERSON, WHO IN TURN RESOLD TO
THE TAVERNKEEPERS THROUGH THE SALESMEN.  FOR THEN THE 77[ LEGAL MARGIN
WOULD REMAIN, NOW FOR THE INTERVENING PURCHASER, TOGETHER WITH THE USE
OF FRANCISCO'S BOOKS AND RECORDS TO CONCEAL HIS EXISTENCE AND PART IN
THE TRANSACTIONS AND THE ALLOWABLE INFERENCES FROM THOSE FACTS. 

FN14  ACTING ALMOST SIMULTANEOUSLY IN EARLY DECEMBER BEFORE THE FIRST
CARLOAD ARRIVED IN SAN FRANCISCO, BLUMENTHAL AND FEIGENBAUM, AS WELL AS
ABEL AND OTHER UNIDENTIFIED SALESMEN, MADE IT KNOWN THAT THEY COULD
OBTAIN WHISKEY FOR TAVERNKEEPERS.  THERE ARE COMPELLING INDICATIONS
THAT THESE SALESMEN WERE KEPT INFORMED OF THE STATUS OF THE WHISKEY. 
THUS, ON THE 8TH OR 9TH OF DECEMBER, FEIGENBAUM TOLD ONE PURCHASER THAT
THE WHISKEY WOULD ARRIVE IN SAN FRANCISCO IN "ABOUT A WEEK OR TEN
DAYS," THAT IT WOULD COME IN BY RAILROAD, AND THAT THERE WOULD BE "A
CARLOAD OF IT."  THE FIRST OF THE TWO CARLOADS OF LIQUOR ACTUALLY
ARRIVED ON DECEMBER 17.  SIMILARLY, ON THE 3D OR 4TH OF DECEMBER,
BLUMENTHAL TOLD TAVERNKEEPER FINGERHUT THAT THE WHISKEY WOULD ARRIVE IN
THE LATTER PART OF THE MONTH.  THE WHISKEY DID SO ARRIVE AND THE
PURCHASER RECEIVED DELIVERY.  THEN, LATE IN DECEMBER, FINGERHUT
RECEIVED A TELEPHONE CALL, WHICH HE SAID WAS FROM BLUMENTHAL, ASKING
WHETHER HE NEEDED MORE WHISKEY.  AS A RESULT, FINGERHUT MADE AN
ADDITIONAL PURCHASE ON JANUARY 3 OR 4, 1944.  THE SECOND CARLOAD WAS
RECEIVED BY THE WAREHOUSE COMPANY ON OR ABOUT JANUARY 3D. 

IN ADDITION TO BEING WELL INFORMED AS TO THE PROGRESS OF THE WHISKEY
IN ITS JOURNEY WESTWARD, THE SALESMEN FOLLOWED A SINGULARLY SET PATTERN
IN MAKING THEIR RESPECTIVE SALES.  ALL KNEW AND SO TOLD THE PROSPECTIVE
CUSTOMER THAT HE WOULD RECEIVE FRANCISCO'S INVOICE FOR THE WHISKEY AT
THE SAME BELOW-CEILING PRICE, WHICH INVOICE WAS OF GREAT IMPORTANCE
BECAUSE IT ENABLED THE TAVERNKEEPERS TO COMPLY WITH THE RECORD-KEEPING
REQUIREMENTS IMPOSED BY THE CALIFORNIA LAW.  SEE NOTE 15.  ALL MADE
ARRANGEMENTS FOR THE PAYMENT OF THE IDENTICAL PRICE OF $24.50 PER CASE
TO FRANCISCO BY CHECK.  ALL RECEIVED THE CHECKS, WHICH WERE DELIVERED
TO FRANCISCO AND COLLECTED BY IT. 

OF SOME SIGNIFICANCE, IN CONNECTION WITH THE OTHER EVIDENCE, IS THE
TESTIMONY OF TAVERNKEEPER REINBURG THAT ON TWO OCCASIONS, AT ABEL'S
DIRECTION, HE DROVE ABEL TO SAN FRANCISCO, DROPPED HIM AT THE
SPORTORIUM, BLUMENTHAL'S PLACE OF BUSINESS, AND PICKED HIM UP THERE
ABOUT A HALF HOUR LATER. 

THE INFERENCE WAS JUSTIFIED THAT BLUMENTHAL, FEIGENBAUM AND THE OTHER
SALESMEN WERE AWARE THAT THEIR INDIVIDUAL SALES WERE PART OF A LARGER
COMMON ENTERPRISE, DEPENDENT ON THE CAREFULLY EVOLVED ARRANGEMENTS TO
GIVE THE SALES THE GUISE OF LEGITIMACY, TO DISPOSE OF A LARGER STORE OF
LIQUOR.  WHERE A SALESMAN KNEW, AS DID FEIGENBAUM, THAT AT LEAST A
CARLOAD OF WHISKEY WAS INVOLVED, IT WAS AN ENTIRELY REASONABLE
INFERENCE THAT HE KNEW THAT OTHER SALESMEN, PARALLELING HIS EFFORTS,
WERE MAKING SALES SIMILAR TO HIS.  ON THE BASIS OF THE EVIDENCE, THE
JURY WAS WELL WARRANTED IN DECIDING THAT THE FACTS DOVETAILED TOO
NEATLY TO BE THE RESULT OF MERE CHANCE. 

FN15  THE EVIDENCE SHOWED THAT SOME OF THE PURCHASERS WERE UNWILLING
TO BUY LIQUOR WITHOUT RECEIVING A DOCUMENT TO SHOW PURCHASE FROM A
LAWFULLY AUTHORIZED SOURCE AS REQUIRED BY STATE LAW.  WITH FRANCISCO
APPEARING AS ACTUAL OWNER THE SCHEME TOOK ON THE ASPECT OF ONE TO SELL
ITS OWN WHISKEY ILLEGALLY IN THE GUISE OF LAWFUL SALES. 

FN16  EACH SALESMAN KNEW THAT HE WAS RECEIVING $30 TO $40 ABOVE THE
CEILING; THAT FRANCISCO WAS SUPPLYING THE WHISKEY; THAT THE ELABORATE
ARRANGEMENTS WERE MADE NOT MERELY FOR HIS SALES, BUT ALSO FOR OTHERS,
SEE NOTE 14; AND THAT HE HAD TO HAVE THE CASH, AS WELL AS THE CHECK,
BEFORE DELIVERY FROM FRANCISCO WAS COMPLETED. 

THE BASIS FOR IMPUTING SUCH KNOWLEDGE TO GOLDSMITH AND WEISS BECOMES
NOT SO COMPELLING AS WITH THE ADMISSIONS INCLUDED, BUT NEVERTHELESS
REMAINS ADEQUATE.  HOWEVER THE CASE IS VIEWED, APART FROM THE
ADMISSIONS, THEY KNEW THE MARGIN OF LEGAL PROFIT LEFT, WHETHER FOR
THEMSELVES OR FOR OTHERS, AFTER DEDUCTING THE $24.50 PER CASE, WAS ONLY
77[.  IF THEY ACTUALLY OWNED AND SOLD THE WHISKEY, WHY SELL BELOW THE
CEILING IN THE FACE OF THE SHORTAGE AND DEMAND, WHEN SELLING COSTS
INCLUDING THE SALESMEN'S COMPENSATION STILL WERE TO BE PAID?  IF THEY
DID NOT OWN OR SELL AT THE $24.50 FIGURE, THEN WHY THE CHECKS AND FALSE
INVOICES IN THAT AMOUNT?  THE INFERENCE IS JUSTIFIED THAT EITHER THEY
OR SOMEONE ELSE TO THEIR KNOWLEDGE WAS RECEIVING MORE THAN THE LAWFUL
PRICE. 

FN17  MARINO V. UNITED STATES, 91 F.2D 691; LEFCO V. UNITED STATES,
74 F.2D 66; JEZEWSKI V. UNITED STATES, 13 F.2D 599; ALLEN V. UNITED
STATES, 4 F.2D 688. 

FN18  THESE INCLUDE THE ARGUMENT THAT PETITIONERS WERE PROSECUTED
UNDER THE WRONG STATUTE.  SECTION 4(A) OF THE EMERGENCY PRICE CONTROL
ACT MAKES IT UNLAWFUL, AS A MISDEMEANOR, SEC. 205(B), FOR ANY PERSON TO
SELL OR DELIVER ANY COMMODITY IN VIOLATION OF PRICE REGULATIONS, "OR TO
OFFER, SOLICIT, ATTEMPT, OR AGREE TO DO ANY OF THE FOREGOING." 
PETITIONERS REGARD THE PROHIBITORY WORDS "OR AGREE," ETC., AS REPEAL BY
IMPLICATION OF THE GENERAL CONSPIRACY STATUTE, SEC. 37 OF THE CRIMINAL
CODE, INSOFAR AS OTHERWISE IT MIGHT APPLY TO THE ACTS FORBIDDEN BY SEC.
4(A).  THERE WAS NO "IMPLIED REPEAL."  CONVICTION UNDER THE GENERAL
CONSPIRACY STATUTE REQUIRES MORE THAN MERE AGREEMENT, NAMELY, THE
COMMISSION OF AN OVERT ACT.  SEE ALSO TAUB V. BOWLES, 149 F.2D 817;
H.R. REP. NO. 827, 79TH CONG., 1ST SESS., 7-8. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 
..END :




MARINO V. RAGEN, 332 U.S. 561 


NO. 93.  DECIDED DECEMBER 22, 1947.  - CERTIORARI GRANTED - JUDGMENT
VACATED AND REMANDED. 


1.  WHERE AN INFERIOR STATE COURT QUASHES A WRIT OF HABEAS CORPUS
SOUGHT TO REVIEW AN ALLEGED DENIAL OF RIGHTS UNDER THE FEDERAL
CONSTITUTION AND ITS ORDER CANNOT BE REVIEWED BY ANY HIGHER STATE
COURT, A PETITION FOR A WRIT OF CERTIORARI TO OBTAIN REVIEW OF THAT
ORDER IS PROPERLY ADDRESSED TO THIS COURT.  P. 561. 

2.  WHETHER, UPON THE FACTS OF THIS CASE, HABEAS CORPUS IS AN
APPROPRIATE REMEDY IN THE STATE COURT TO CORRECT A DENIAL OF DUE
PROCESS IS A QUESTION OF STATE LAW UPON WHICH THIS COURT ACCEPTS THE
CONCESSION OF THE STATE'S ATTORNEY GENERAL.  P. 562. 

3.  ON THE FACTS RECITED IN THE OPINION AND CONFESSION OF ERROR BY
THE STATE'S ATTORNEY GENERAL, THIS COURT CONCLUDES THAT IN HIS TRIAL
FOR MURDER PETITIONER WAS DENIED DUE PROCESS OF LAW CONTRARY TO THE
FOURTEENTH AMENDMENT.  P. 562. 

MARINO V. RAGEN, WARDEN. 

PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF WINNEBAGO
COUNTY, ILLINOIS. 

PER CURIAM. 

PETITIONER SOUGHT A WRIT OF HABEAS CORPUS IN THE CIRCUIT COURT OF
WINNEBAGO COUNTY, ILLINOIS, ALLEGING THAT HIS CONVICTION IN 1925 ON A
CHARGE OF MURDER WAS THE RESULT OF A DENIAL OF HIS RIGHTS UNDER THE
FEDERAL CONSTITUTION.  THAT COURT, AFTER A HEARING, QUASHED THE WRIT;
AND AS ITS ORDER CANNOT BE REVIEWED BY ANY HIGHER ILLINOIS COURT UNDER
ILLINOIS PRACTICE, THIS PETITION FOR A WRIT OF CERTIORARI IS PROPERLY
ADDRESSED TO THIS COURT.  SEE WOODS V. NIERSTHEIMER, 328 U.S. 211; 15
U. OF CHIC.  L. REV. 118, 122. 

THE FACTS CONCEDED BY RESPONDENT ARE AS FOLLOWS: 

THE COMMON-LAW RECORD RECITES THAT PETITIONER WAS ARRAIGNED IN OPEN
COURT AND ADVISED THROUGH INTERPRETERS OF THE MEANING AND EFFECT OF A
PLEA OF GUILTY AND THAT PETITIONER SIGNED A STATEMENT WAIVING JURY
TRIAL AND PLEADING GUILTY.  HE WAS SENTENCED TO LIFE IMPRISONMENT.  IT
DOES NOT APPEAR, HOWEVER, THAT AN ATTORNEY WAS APPOINTED TO REPRESENT
HIM.  THE WAIVER WAS NOT IN FACT SIGNED BY HIM, AND NO PLEA OF GUILTY
WAS ENTERED AT THE TRIAL.  HE WAS 18 YEARS OLD AT THAT TIME AND HAD
BEEN IN THIS COUNTRY ONLY TWO YEARS.  HE DID NOT UNDERSTAND THE ENGLISH
LANGUAGE AND IT IS DOUBTFUL THAT HE UNDERSTOOD AMERICAN TRIAL COURT
PROCEDURE.  THE ARRESTING OFFICER SERVED AS AN INTERPRETER FOR
PETITIONER AT THE ORIGINAL TRIAL. 

THE STATE OF ILLINOIS SPEAKING THROUGH THE ATTORNEY GENERAL ADMITS
THE FOREGOING FACTS, CONFESSES ERROR, AND CONSENTS TO A REVERSAL OF THE
JUDGMENT BELOW.  HE STATES THAT THE WRIT OF HABEAS CORPUS IS A PROPER
REMEDY IN ILLINOIS IN THIS CASE BECAUSE THE FACTS, WHICH HE CONCEDES TO
BE A DENIAL OF DUE PROCESS OF LAW UNDER THE DECISIONS OF THIS COURT,
WERE KNOWN TO THE COURT AT THE TIME OF THE ORIGINAL TRIAL, THOUGH THEY
WERE NOT A MATTER OF RECORD AT THE TRIAL.  WHETHER OR NOT ON THIS
SHOWING HABEAS CORPUS IS AN APPROPRIATE REMEDY IN THE COURT TO CORRECT
A DENIAL OF DUE PROCESS IS A QUESTION OF STATE LAW AS TO WHICH WE
ACCEPT THE CONCESSION OF THE STATE'S ATTORNEY GENERAL. 

IN LIGHT OF THE CONFESSION OF ERROR (SEE YOUNG V. UNITED STATES, 315
U.S. 257; BOZZA V. UNITED STATES, 330 U.S. 160; CF. BALTZER V. UNITED
STATES, 248 U.S. 593) AND THE UNDISPUTED FACTS, WE CONCLUDE THAT
PETITIONER WAS DENIED THE DUE PROCESS OF LAW WHICH THE FOURTEENTH
AMENDMENT REQUIRES. 

PERMISSION TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE PETITION FOR
A WRIT OF CERTIORARI IS GRANTED AND THE JUDGMENT BELOW IS VACATED AND
REMANDED TO THE CIRCUIT COURT.  SO ORDERED. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MURPHY JOIN, CONCURRING. 

THIS CASE SHARPLY POINTS UP A MUCH LARGER PROBLEM, OF GROWING CONCERN
TO THIS COURT, THAN MERELY THE DISPOSITION TO BE MADE OF MARINO'S
PETITION IN VIEW OF THE STATE'S CONFESSION OF ERROR.  I AGREE THAT
RELIEF IS DUE HIM, AND I JOIN IN THE COURT'S OPINION.  BUT I DO NOT
FIND HIS CASE DIFFERENT, EXCEPT IN ONE RESPECT, FROM MANY OTHERS WHICH
HAVE COME REGULARLY TO THIS COURT FROM ILLINOIS IN RECENT YEARS, IN
WHICH RELIEF HAS BEEN AS REGULARLY DENIED.  THE ONLY SUBSTANTIAL
DIFFERENCE, IN MY JUDGMENT, IS THAT HERE THE STATE HAS CONFESSED
ERROR.  THAT CONFESSION RAISES, IN MY OPINION, THE QUESTION OF THE
COURSE THIS COURT SHOULD FOLLOW IN THE FUTURE CONCERNING THE
DISPOSITION OF SIMILAR PETITIONS FROM ILLINOIS. 

DURING THE LAST THREE TERMS WE HAVE BEEN FLOODED WITH PETITIONS FROM
ILLINOIS ALLEGING DEPRIVATIONS OF DUE PROCESS AND OTHER CONSTITUTIONAL
RIGHTS.  THUS IN THE 1944 TERM, OUT OF A TOTAL OF 339 PETITIONS FILED
IN FORMA PAUPERIS, ALMOST ALL BY PRISONERS, 141 CAME FROM ILLINOIS; IN
THE 1945 TERM, 175 OUT OF 393 WERE FROM ILLINOIS; AND IN THE 1946 TERM,
322 OUT OF 528 CAME FROM THAT STATE.  FN1  WITH MECHANICAL REGULARITY
PETITIONS FOR CERTIORARI TO REVIEW ILLINOIS' REFUSALS TO GRANT RELIEF,
OFTEN EVEN TO GRANT A HEARING, HAVE BEEN DENIED.  FN2  WE HAVE ADHERED
CONSISTENTLY TO THE PRACTICE OF NOT ENTERTAINING SUCH A PETITION WHEN
IT SEEMED TO APPEAR THAT THE APPLICANT HAD NOT SOUGHT THE APPROPRIATE
STATE REMEDY.  WOODS V. NIERSTHEIMER, 328 U.S. 211.  AND, AS A
COROLLARY OF THIS PRACTICE, WE HAVE INSISTED THAT THE FEDERAL COURTS
DENY A HEARING TO AN APPLICANT FOR HABEAS CORPUS WHO HAS NOT EXHAUSTED
HIS STATE REMEDIES.  EX PARTE HAWK, 321 U.S. 114; EX PARTE ABERNATHY,
320 U.S. 219 AND CASES CITED. 

THIS RULE, REQUIRING EXHAUSTION OF STATE REMEDIES AS A CONDITION
PRECEDENT TO FEDERAL RELIEF, HAS BEEN FIRMLY ESTABLISHED BY REPEATED
DECISIONS OF THIS COURT.  EVEN IN EXTREME SITUATIONS ITS APPLICATION
HAS BEEN JUSTIFIED BY SOUND ADMINISTRATIVE REASONS.  SEE MOONEY V.
HOLOHAN, 294 U.S. 103, 115.  BUT IT HAS ALWAYS BEEN CLEAR THAT THE RULE
MAY BE APPLIED ONLY ON THE ASSUMPTION THAT AN ADEQUATE STATE REMEDY IS
ACTUALLY AVAILABLE.  CARTER V. ILLINOIS, 329 U.S. 173, 176; WOODS V.
NIERSTHEIMER, SUPRA AT 217; EX PARTE HAWK, SUPRA AT 118.  AND IT WOULD
BE NOTHING LESS THAN ABDICATION OF OUR CONSTITUTIONAL DUTY AND FUNCTION
TO REBUFF PETITIONERS WITH THIS MECHANICAL FORMULA WHENEVER IT MAY
BECOME CLEAR THAT THE ALLEGED STATE REMEDY IS NOTHING BUT A PROCEDURAL
MORASS OFFERING NO SUBSTANTIAL HOPE OF RELIEF.  EXPERIENCE HAS
CONVINCED ME THAT THIS IS TRUE OF ILLINOIS. 

THIS CASE PRESENTS A FLAGRANT EXAMPLE OF DEPRIVATION OF DUE PROCESS. 
IN 1925 PETITIONER WAS CONVICTED OF MURDER AND SENTENCED TO LIFE
IMPRISONMENT.  HE WAS THEN EIGHTEEN YEARS OLD AND UNABLE TO SPEAK
ENGLISH, HAVING ARRIVED IN THE UNITED STATES FROM ITALY LESS THAN TWO
YEARS BEFORE.  THE POLICE OFFICER WHO ARRESTED HIM SERVED AS ONE OF THE
TWO INTERPRETERS AT HIS TRIAL.  HE WAS NOT REPRESENTED BY COUNSEL NOR,
AS FAR AS CAN BE DETERMINED, WAS HIS RIGHT TO COUNSEL EXPLAINED TO
HIM.  SEE FOSTER V. ILLINOIS, 332 U.S. 134, DISSENTING OPINION 141. 
ALTHOUGH THE RECORD SHOWS THAT PETITIONER SIGNED A WRITTEN WAIVER OF
JURY TRIAL, WHICH STATED THAT HE HAD ENTERED A PLEA OF GUILTY, IN FACT
HE DID NOT SIGN ANY SUCH WAIVER, AND NO GUILTY PLEA APPEARS TO HAVE
BEEN ENTERED.  HIS SENTENCE WAS IMPOSED ONE WEEK AFTER THE INDICTMENT. 

TWENTY-TWO YEARS LATER THESE FACTS WERE ESTABLISHED AT A HEARING IN
THE CIRCUIT COURT OF WINNEBAGO COUNTY, ILLINOIS, ON PETITIONER'S
APPLICATION FOR HABEAS CORPUS.  NEVERTHELESS, THE WRIT WAS DENIED
WITHOUT ASSIGNMENT OF ANY GROUND.  FN3  PETITIONER SOUGHT CERTIORARI IN
THIS COURT, AND WHEN CALLED UPON FOR A RESPONSE, ILLINOIS CONFESSED
ERROR.  WHILE I CONCUR IN THE COURTHS JUDGMENT, THE LIGHT WHICH THE
CONFESSION OF ERROR SHEDS ON THE ILLINOIS PROCEDURAL LABYRINTH CONFIRMS
THE GROWING CONVICTION THAT ILLINOIS OFFERS NO ADEQUATE REMEDY TO
PRISONERS SITUATED AS IS THE PRESENT PETITIONER. 

THE TROUBLE WITH ILLINOIS IS NOT THAT IT OFFERS NO PROCEDURE.  IT IS
THAT IT OFFERS TOO MANY, AND MAKES THEM SO INTRICATE AND INEFFECTIVE
THAT IN PRACTICAL EFFECT THEY AMOUNT TO NONE.  THE POSSIBILITY OF
SECURING EFFECTIVE DETERMINATION ON THE MERITS IS SUBSTANTIALLY
FORECLOSED BY THE PROBABILITY, INDEED THE ALL BUT MATHEMATICAL
CERTAINTY, THAT THE CASE WILL GO OFF ON THE PROCEDURAL RULING THAT THE
WRONG ONE OF SEVERAL POSSIBLE REMEDIES HAS BEEN FOLLOWED.  FN4 

THUS, OUR UNDERSTANDING OF ILLINOIS LAW AT THE TIME OF WOODS V.
NIERSTHEIMER, SUPRA, WAS THAT HABEAS CORPUS WOULD NOT LIE IN SUCH A
CASE AS THIS BECAUSE PETITIONER NEITHER CHALLENGED THE JURISDICTION OF
THE COURT WHICH CONVICTED HIM, NOR ALLEGED ANY SUBSEQUENT EVENTS HAVING
THE EFFECT OF VOIDING THAT CONVICTION.  328 U.S. 211, 215.  HENCE WE
ASSUMED THAT CORAM NOBIS WOULD BE THE APPROPRIATE REMEDY.  BUT ILLINOIS
NOW SUGGESTS THAT WE HAVE OVERSIMPLIFIED THE SITUATION.  THAT HABEAS
CORPUS IS APPROPRIATE HERE IS EXPLAINED BY THE STATE'S ATTORNEY GENERAL
AS FOLLOWS: 

"IN ORDER TO KEEP ILLINOIS' POSITION CONSTANT AND CONSISTENT BEFORE
THIS COURT, WE VENTURE TO POINT OUT THAT ALTHOUGH THE PRESENT ATTORNEY
GENERAL HAS PREVAILED UPON THIS COURT TO RECOGNIZE THAT CORAM NOBIS IS
A REMEDY IN ILLINOIS EXCLUSIVE OF HABEAS CORPUS, WHERE THE FACTS
CONSTITUTING DENIAL OF DUE PROCESS BUT DEHORS THE RECORD WERE NOT KNOWN
TO THE TRIAL COURT AT THE TIME OF THE IMPOSITION OF SENTENCE, WE HAVE
ALWAYS CONCEDED THAT WHERE, AS IN THE INSTANT CASE, THOSE FACTS
ALTHOUGH NOT A MATTER OF RECORD AT THE TRIAL WERE NEVERTHELESS KNOWN TO
THE TRIAL COURT, HABEAS CORPUS MAY BE AVAILABLE IN PROPER CASES.  WE
DEEM HABEAS CORPUS TO BE CLEARLY APPROPRIATE UNDER THE ILLINOIS LAW IN
THIS CASE.  WE DO NOT CONCEDE, HOWEVER, THAT THERE ARE NO CASES IN
WHICH WRIT OF ERROR, AS DISTINCT FROM EITHER CORAM NOBIS OR HABEAS
CORPUS, WOULD BE THE PROPER REMEDY." 

NOTWITHSTANDING THE EXPLANATION, THE EXTENT OF THE APPLICABILITY OF
THIS EXPANDED SCOPE OF HABEAS CORPUS "IN PROPER CASES" IS BY NO MEANS
CLEAR.  PERHAPS IT IS LIMITED TO A CASE WHERE OVER TWENTY YEARS HAVE
ELAPSED SINCE THE CONVICTION, AND HENCE NEITHER WRIT OF ERROR NOR CORAM
NOBIS IS AVAILABLE; PERHAPS IT WOULD BE AVAILABLE ANY TIME AFTER THE
FIVE-YEAR STATUTE OF LIMITATIONS ON CORAM NOBIS HAD RUN.  FN5  POSSIBLY
THE RULE IS GENERAL FOR CASES OF DEPRIVATION OF CONSTITUTIONAL RIGHTS
WHENEVER THE JUDGE RESPONSIBLE FOR THE DEPRIVATION HAD KNOWLEDGE OF THE
FACTS.  I CAN ONLY INDULGE IN SPECULATION, BECAUSE I AM AWARE OF
NOTHING IN THE ILLINOIS STATUTES OR DECISIONS WHICH DEFINES THESE NOVEL
LIMITATIONS ON THE USE OF HABEAS CORPUS OR SUPPORTS THE ATTORNEY
GENERAL'S POSITION.  NOR DO I KNOW WHETHER THE LOWER ILLINOIS COURTS
ACCEPT THIS POSITION IN VIEW OF THE LIMITED AREA TO WHICH THE WRIT HAS
BEEN CONFINED BY THE STATE SUPREME COURT DECISIONS.  SEE E.G., THOMPSON
V. NIERSTHEIMER, 395 ILL. 572; BARRETT V. BRADLEY, 391 ILL. 169. 

IN SHORT, THE EFFECT OF THE STATE'S CONFESSION OF ERROR IN THIS CASE
IS NOT TO CLARIFY, IT IS RATHER TO CONFUSE FURTHER, A SITUATION ALREADY
SO MUDDLED THAT ONLY ONE RATIONAL CONCLUSION MAY BE DRAWN.  IT IS THAT
THE ILLINOIS PROCEDURAL LABYRINTH IS MADE UP ENTIRELY OF BLIND ALLEYS,
EACH OF WHICH IS USEFUL ONLY AS A MEANS OF CONVINCING THE FEDERAL
COURTS THAT THE STATE ROAD WHICH THE PETITIONER HAS TAKEN WAS THE WRONG
ONE.  IF THE ONLY STATE REMEDY IS THE POSSIBILITY THAT THE ATTORNEY
GENERAL WILL CONFESS ERROR WHEN HE DETERMINES THAT A FLAGRANT CASE WILL
NOT SURVIVE SCRUTINY BY THIS COURT,  FN6  IT IS HARDLY NECESSARY TO
POINT OUT THAT THE FEDERAL COURTS SHOULD BE OPEN TO A PETITIONER EVEN
THOUGH HE HAS NOT MADE HIS WAY THROUGH SEVERAL COURTS APPLYING FOR
HABEAS CORPUS, THEN WRIT OF ERROR, AND FINALLY CORAM NOBIS.  FN7 

MOREOVER, EVEN THOUGH THERE MAY BE AN AVENUE OF ESCAPE THROUGH THE
STATE COURTS IN A RARE CASE, THE SITUATION IS NO DIFFERENT AS LONG AS
THE TECHNICAL DISTINCTIONS BETWEEN THE VARIOUS REMEDIES ARE SO FINE
THAT ONLY AN ORACLE COULD POINT OUT THE PROPER PROCEDURAL ROAD.  THE
EXHAUSTION-OF-STATE-REMEDIES RULE SHOULD NOT BE STRETCHED TO THE
ABSURDITY OF REQUIRING THE EXHAUSTION OF THREE SEPARATE REMEDIES WHEN
AT THE OUTSET A PETITIONER CANNOT INTELLIGENTLY SELECT THE PROPER WAY,
AND IN CONCLUSION HE MAY FIND ONLY THAT NONE OF THE THREE IS
APPROPRIATE OR EFFECTIVE.  THAT EACH IS SEVERELY RESTRICTED IS CLEAR. 
FN8  THAT ANY ONE IS AVAILABLE AS A MATTER OF RIGHT IS BY NO MEANS
CLEAR.  FN9 AND EVEN IF EACH HAS A LIMITED FUNCTION EXCLUSIVE OF THE
OTHER TWO, IT MAY WELL BE THAT NO ONE IS ADEQUATE IN A CASE WHERE THE
PETITIONER MUST SHOW A COMBINATION OF FACTS TO ESTABLISH A VIOLATION OF
HIS CONSTITUTIONAL RIGHTS.  FN10 

THE ILLINOIS SCHEME AFFORDS A THEORETICAL SYSTEM OF REMEDIES.  IN MY
JUDGMENT IT IS HARDLY MORE THAN THEORETICAL.  EXPERIENCE HAS SHOWN
BEYOND ALL DOUBT THAT, IN ANY PRACTICAL SENSE, THE REMEDIES AVAILABLE
THERE ARE INADEQUATE N11.  WHETHER THIS IS TRUE BECAUSE IN FACT NO
REMEDY EXISTS, OR BECAUSE EVERY REMEDY IS SO LIMITED AS TO BE
INADEQUATE, OR BECAUSE THE PROCEDURAL PROBLEM OF SELECTING THE PROPER
ONE IS SO DIFFICULT, IS BESIDE THE POINT.  IF THE FEDERAL GUARANTEE OF
DUE PROCESS IN A CRIMINAL TRIAL IS TO HAVE REAL SIGNIFICANCE IN
ILLINOIS, IT IS IMPERATIVE THAT MEN CONVICTED IN VIOLATION OF THEIR
CONSTITUTIONAL RIGHTS HAVE AN ADEQUATE OPPORTUNITY TO BE HEARD IN
COURT.  THIS OPPORTUNITY IS NOT ADEQUATE SO LONG AS THEY ARE REQUIRED
TO RIDE THE ILLINOIS MERRY-GO-ROUND OF HABEAS CORPUS, CORAM NOBIS, AND
WRIT OF ERROR BEFORE GETTING A HEARING IN A FEDERAL COURT. 

CONSEQUENTLY, AS FAR AS I AM CONCERNED, THE ILLINOIS REMEDIES ARE
EXHAUSTED HERE, APART FROM THE STATE'S CONFESSION OF ERROR.  I ALSO
THINK THAT, UNTIL THAT STATE AFFORDS A REASONABLY CLEAR AND ADEQUATE
MEANS FOR PRESENTING AND DISPOSING OF SUCH QUESTIONS AS MARINO'S CASE
INVOLVES, THIS COURT SHOULD NO LONGER REQUIRE EXHAUSTION OF ITS PRESENT
SCHEME OF INEFFECTIVE AND INADEQUATE REMEDIES BEFORE PERMITTING RESORT
TO THE FEDERAL DISTRICT COURTS SITTING IN ILLINOIS N12.  WE SHOULD
NEITHER DELAY NOR DENY JUSTICE, NOR CLOG ITS ADMINISTRATION, WITH SO
USELESS AND HARMFUL A PROCEDURAL STRANGLING OF FEDERAL CONSTITUTIONAL
RIGHTS. 

FN1  THIS INCREASING VOLUME NO DOUBT IS DUE IN PART TO THE ASSIDUITY
WITH WHICH PRISONERS SEEK RELIEF EITHER FROM PRISON OR FROM THE TEDIUM
OF PRISON LIFE.  BUT THAT NOT ALL OF IT CAN BE ATTRIBUTED TO THAT
FACTOR SEEMS CLEAR FROM THE FACT THAT NO OTHER STATE PRESENTS ANYTHING
APPROACHING SUCH A VOLUME OF PETITIONS OR SO COMPLICATED A PROCEDURE
FOR FINALLY DISPOSING OF THE QUESTIONS RAISED.    FN2  OF THE 322
PETITIONS FILED IN THE 1946 TERM, ONLY TWO WERE GRANTED.  IN FOSTER V.
ILLINOIS, 332 U.S. 134, THE NARROW SCOPE OF REVIEW BY WRIT OF ERROR IN
ILLINOIS PRECLUDED RELIEF HERE; IN MCLAREN V. NIERSTHEIMER, 329 U.S.
685, THE JUDGMENT WAS VACATED AND THE CASE REMANDED AFTER THE STATE
CONFESSED ERROR. 

FN3  BUT FOR THE STATE'S CONFESSION OF ERROR, OUR USUAL PRACTICE IN
THESE CASES WOULD LEAD US TO ASSUME THAT THE DENIAL HAD BEEN ON THE
GROUND THAT HABEAS CORPUS WAS NOT THE APPROPRIATE STATE REMEDY.  SEE
NOTE 4. 

FN4  SINCE THE PETITIONS MORE OFTEN THAN OTHERWISE ARE DISPOSED OF BY
MERE DENIAL WITHOUT ASSIGNMENT OF GROUNDS, IT IS SELDOM POSSIBLE FOR
THIS COURT TO KNOW WHETHER THE ILLINOIS COURT HAS ACTED ON THE MERITS
OR ON THE STATE GROUND THAT THE WRONG REMEDY HAS BEEN FOLLOWED.  IT IS
THEREFORE ALWAYS POSSIBLE TO ASSUME HERE THAT THE RULING WAS OF THE
LATTER TYPE AND THIS WOULD SEEM TO BE TRUE, IF NOT OF EVERY SUCH
DETERMINATION, AT LEAST OF ALL UNTIL THE LAST CONCEIVABLY POSSIBLE
ROUTE HAS BEEN FOLLOWED. 

FN5  ILL. REV. STAT. (1947) C. 110, SEC. 196.  THIS FIVE-YEAR
LIMITATION PERIOD APPLIES TO "ALL CORAM NOBIS PROCEEDINGS."  PEOPLE V.
TOUHY, 397 ILL. 19, 26; PEOPLE V. RAVE, 392 ILL. 435.  WRIT OF ERROR IS
GOVERNED BY A COMMON-LAW LIMITATION PERIOD OF TWENTY YEARS.  PEOPLE V.
CHAPMAN, 392 ILL. 168; PEOPLE V. MURPHY, 296 ILL. 532. 

FN6  SEE MCLAREN V. NIERSTHEIMER, 329 U.S. 685. 

FN7  "UNDER PRESENT PROCEDURES, IT IS NEARLY IMPOSSIBLE TO SECURE
ADJUDICATION OF THE MERITS OF ALLEGED CONSTITUTIONAL DEFECTS IN
JUDGMENTS OF CONVICTION IN ILLINOIS COURTS; YET PETITIONERS MUST
PRESENT THEIR APPLICATIONS FOR CONSIDERATION SEVEN TO TWELVE TIMES IN
ORDER TO ESCAPE THE PROCEDURAL MAZE OF THE STATE COURTS AND TO SECURE
THEIR INITIAL HEARINGS ON THE TRUTH OF THEIR ALLEGATIONS IN THE FEDERAL
COURTS."  NOTE, A STUDY OF THE ILLINOIS SUPREME COURT, 15 U. OF CHI. 
L. REV. 107, 120. 

FN8  REVIEW BY WRIT OF ERROR IN ILLINOIS IS LIMITED TO MATTERS IN THE
COMMON-LAW RECORD WHERE NO BILL OF EXCEPTIONS IS FILED.  CARTER V.
ILLINOIS, 329 U.S. 173; FOSTER V. ILLINOIS, 332 U.S. 134; PEOPLE V.
OWENS, 397 ILL. 166.  THE BILL OF EXCEPTIONS MUST BE PRESERVED WITHIN
FIFTY DAYS AFTER JUDGMENT WAS ENTERED UNLESS AN EXTENSION IS GRANTED
DURING THAT TIME.  ILL. REV. STAT., C. 110, SEC. 259.70A.  HABEAS
CORPUS HAS BEEN THOUGHT TO BE AVAILABLE ONLY TO CHALLENGE JURISDICTION
IN THE NARROW SENSE OF JURISDICTION OVER THE PERSON OR THE SUBJECT
MATTER, OR TO SHOW EVENTS SUBSEQUENT TO THE TRIAL WHICH RENDER THE
ORIGINAL CONVICTION VOID.  WOODS V. NIERSTHEIMER, 328 U.S. 211;
THOMPSON V. NIERSTHEIMER, 395 ILL. 572; BARRETT V. BRADLEY, 391 ILL.
169.  CORAM NOBIS IS AVAILABLE ONLY TO PRESENT FACTUAL QUESTIONS OF A
CERTAIN KIND, PEOPLE V. DRYSCH, 311 ILL. 342, 349, WHICH WERE NOT KNOWN
TO THE TRIAL COURT, PEOPLE V. SCHUEDTER, 336 ILL. 244, WHICH DO NOT
CONFLICT WITH JURY FINDINGS, AND WHICH PETITIONER FAILED TO RAISE
BECAUSE OF EXCUSABLE MISTAKE RATHER THAN NEGLIGENCE ON HIS, OR HIS
ATTORNEY'S PART, SEE PEOPLE V. RAVE, 392 ILL. 435, 440.  SEE COMMENT,
COLLATERAL RELIEF FROM CONVICTIONS IN VIOLATION OF DUE PROCESS IN
ILLINOIS, 42 ILL. L. REV. 329. 

FN9  IT IS QUESTIONABLE WHETHER ILLINOIS AFFORDS A REMEDY FOR A MAN
DEPRIVED OF HIS RIGHT TO COUNSEL.  SEE FOSTER V. ILLINOIS, 332 U.S.
134, DISSENTING OPINION 141; PEOPLE V. EVANS, 397 ILL. 430.  THE TRIAL
JUDGE WOULD SURELY KNOW THAT HE HAD REFUSED TO APPOINT COUNSEL AND
WOULD BE PRESUMED TO BE FAMILIAR WITH THE RECORD, SEE PEOPLE V. RAVE,
392 ILL. 435, 440; HENCE CORAM NOBIS WOULD NOT LIE.  ASSUMING THAT THE
CLERK MAKES THE ROUTINE ENTRY TO THE EFFECT THAT THE ACCUSED WAS
APPRISED OF HIS RIGHTS, WHICH HE PROMPTLY WAIVED, SEE PEOPLE V. GREEN,
355 ILL. 468, WRIT OF ERROR WOULD AFFORD INADEQUATE REVIEW.  SEE CARTER
V. ILLINOIS, 329 U.S. 173.  ONLY IF THE ATTORNEY GENERAL'S VIEW OF
HABEAS CORPUS WOULD EXTEND TO SUCH A CASE WOULD A REMEDY BE AVAILABLE. 
THERE MAY EVEN BE DOUBT WHETHER AN ALLEGATION THAT A CONFESSION WAS
OBTAINED BY COERCION WOULD WARRANT REVIEW, SEE PEOPLE V. DRYSCH, 311
ILL. 342; PEOPLE V. SCHUEDTER, 336 ILL. 244. 

FN10  FOR EXAMPLE, PETITIONER MIGHT ALLEGE THAT HE HAD INADEQUATE
TIME TO PREPARE HIS DEFENSE, THAT THE TRIAL COURT DENIED HIM COUNSEL,
AND THAT A FORCED CONFESSION WAS USED AS EVIDENCE AT THE TRIAL.  THE
FIRST ALLEGATION COULD BE MADE ONLY BY WRIT OF ERROR BECAUSE THE
CRUCIAL DATES WOULD BE A MATTER OF RECORD; THE SECOND ONLY BY HABEAS
CORPUS, IF AT ALL, BECAUSE THE TRIAL COURT IS PRESUMED TO KNOW WHAT IS
IN THE RECORD AND HE WOULD CERTAINLY KNOW THAT HE HAD REFUSED TO
APPOINT COUNSEL; AND THE THIRD ALLEGATION ONLY BY CORAM NOBIS BECAUSE
THE FACTS WOULD BE UNKNOWN TO THE TRIAL COURT.  PERHAPS NONE OF THE
ALLEGATIONS CONSIDERED SEPARATELY WOULD ESTABLISH A DEPRIVATION OF DUE
PROCESS, YET WITH THE WHOLE PICTURE BEFORE THE COURT A VIOLATION OF
CONSTITUTIONAL RIGHTS WOULD BE APPARENT. 

FN11  SEE NOTE 1 AND TEXT; ALSO NOTE 2.  "(THE) INEVITABLE CONCLUSION
MUST BE REACHED THAT THE STATE OF ILLINOIS PROVIDES NO SATISFACTORY OR
ADEQUATE METHOD FOR POST-CONVICTION HEARINGS  ...  " NOTE, A STUDY OF
THE ILLINOIS SUPREME COURT, 15 U. OF CHI.  L. REV. 107, 128. 

FN12  THIS COURT HAS FREQUENTLY RECOGNIZED THAT THE POLICY UNDERLYING
THE EXHAUSTION-OF-REMEDIES DOCTRINE DOES NOT REQUIRE THE EXHAUSTION OF
INADEQUATE REMEDIES.  HILLSBOROUGH TWP.  V. CROMWELL, 326 U.S. 620;
WHITE V. RAGEN, 324 U.S. 760; DRISCOLL V. EDISON CO., 307 U.S. 104;
MOUNTAIN STATES CO. V. COMM'N, 299 U.S. 167; CORPORATION COMM'N V.
CARY, 296 U.S. 452; PACIFIC TEL. CO. V. KUYKENDALL, 265 U.S. 196; OKLA.
GAS CO. V. RUSSELL, 261 U.S. 290; MOORE V. DEMPSEY, 261 U.S. 86;
WALLACE V. HINES, 253 U.S. 66. 
..END :














PANHANDLE PIPE LINE CO. V. COMM'N, 332 U.S. 507 


NO. 69.  ARGUED NOVEMBER 14, 17, 1947.  - DECIDED DECEMBER 15, 1947.  -
224 IND. 662, 71 N.E.2D 117, AFFIRMED. 


1.  SALES OF IMPORTED NATURAL GAS BY AN INTERSTATE PIPELINE CARRIER
DIRECT TO INDUSTRIAL CONSUMERS ARE SALES IN INTERSTATE COMMERCE, EVEN
THOUGH THE GAS LEAVES THE MAIN TRANSMISSION LINE WITHIN THE STATE AND
IS PIPED TO THE CONSUMERS THROUGH BRANCH LINES OR LATERALS AT REDUCED
PRESSURE.  PP. 512-513. 

2.  IN VIEW OF THE POSITION OF THE STATE COMMISSION AS CONSTRUED BY
THE STATE SUPREME COURT, THE ORDERS OF THE COMMISSION, DIRECTING
IMMEDIATELY ONLY THE FILING OF INFORMATION, CONSTITUTED AN ASSERTION OF
POWER TO REGULATE APPELLANT'S RATES AND SERVICE UNDER THE STATE'S
COMPREHENSIVE SCHEME OF REGULATION; AND APPELLANT WAS NOT REQUIRED TO
AWAIT A FURTHER REGULATORY ORDER BEFORE CONTESTING THE COMMISSION'S
JURISDICTION.  P. 511. 

3.  IN THE LIGHT OF THE LEGISLATIVE HISTORY, PROVISIONS, AND POLICY
OF THE NATURAL GAS ACT, AND OF THE JUDICIAL HISTORY LEADING TO ITS
ENACTMENT, SALES OF NATURAL GAS BY AN INTERSTATE PIPELINE CARRIER
DIRECT TO INDUSTRIAL CONSUMERS, ALTHOUGH IN INTERSTATE COMMERCE, ARE
SUBJECT TO REGULATION BY THE STATES.  PP. 513-524. 

4.  BY THE NATURAL GAS ACT, CONGRESS DID NOT OCCUPY THE ENTIRE FIELD
OPEN TO FEDERAL REGULATION OF THE TRANSPORTATION AND SALE OF NATURAL
GAS IN INTERSTATE COMMERCE, BUT EXTENDED FEDERAL REGULATION ONLY TO
THAT AREA WHICH THIS COURT PREVIOUSLY HAD HELD THE STATES COULD NOT
REACH.  PP. 516-519. 

5.  IT IS UNNECESSARY IN THIS CASE TO CONSIDER THE EFFECT OF THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION INDEPENDENTLY OF THE EFFECT
OF THE NATURAL GAS ACT AS HERE CONSTRUED.  P. 524. 

PANHANDLE EASTERN PIPE LINE CO. V. PUBLIC SERVICE COMMISSION OF
INDIANA ET AL. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

ORDERS OF A STATE COMMISSION REQUIRING A PIPELINE COMPANY TO FILE
TARIFFS, REGULATIONS, REPORTS, ETC., WERE VACATED AND ENJOINED BY A
STATE COURT.  THE SUPREME COURT OF THE STATE REVERSED.  224 IND. 662,
71 N.E.2D 117.  ON APPEAL TO THIS COURT, AFFIRMED, P. 524. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

BROADLY THE QUESTION IS WHETHER INDIANA HAS POWER TO REGULATE SALES
OF NATURAL GAS MADE BY AN INTERSTATE PIPE-LINE CARRIER DIRECT TO
INDUSTRIAL CONSUMERS IN INDIANA.  MORE NARROWLY WE ARE ASKED TO DECIDE
WHETHER THE COMMERCE CLAUSE, CONST. ART. I, SEC. 8, BY ITS OWN FORCE
FORBIDS THE APPELLEE, PUBLIC SERVICE COMMISSION, TO REQUIRE APPELLANT
TO FILE TARIFFS, RULES AND REGULATIONS, ANNUAL REPORTS, ETC., AS STEPS
IN A COMPREHENSIVE PLAN OF REGULATION PRELIMINARY TO POSSIBLE EXERCISE
OF JURISDICTION OVER RATES AND SERVICE IN SUCH SALES.  FN1 

PANHANDLE EASTERN TRANSPORTS NATURAL GAS FROM TEXAS AND KANSAS FIELDS
INTO AND ACROSS INTERVENING STATES, INCLUDING INDIANA, TO OHIO AND
MICHIGAN.  IN INDIANA IT FURNISHES GAS TO LOCAL PUBLIC UTILITY
DISTRIBUTING COMPANIES AND MUNICIPALITIES.  THESE IN TURN SUPPLY THE
NEEDS OF OVER 112,000 RESIDENTIAL, COMMERCIAL AND INDUSTRIAL
CONSUMERS. 

SINCE 1942 APPELLANT ALSO HAS SOLD GAS IN LARGE AMOUNTS DIRECT TO
ANCHOR-HOCKING GLASS CORPORATION FOR INDUSTRIAL CONSUMPTION.  FN2
SHORTLY BEFORE BEGINNING THIS SERVICE APPELLANT HAD INFORMED A NUMBER
OF ITS CUSTOMERS, LOCAL DISTRIBUTING COMPANIES IN INDIANA, THAT IT
INTENDED TO RENDER SERVICE DIRECTLY TO LARGE INDUSTRIAL CONSUMERS
WHEREVER POSSIBLE.  FN3  PURSUANT TO THAT POLICY, SINCE THESE
PROCEEDINGS BEGAN DIRECT SERVICE HAS BEEN EXTENDED TO ANOTHER BIG
INDUSTRIAL USER.  FN4 

IN 1944 THE COMMISSION INITIATED HEARINGS RELATIVE TO DIRECT SERVICE
BY PANHANDLE EASTERN TO INDIANA CONSUMERS.  IT CONCLUDED THAT "THE
DISTRIBUTION IN INDIANA BY PANHANDLE OF NATURAL GAS DIRECT TO CONSUMERS
IS SUBJECT TO REGULATION BY THIS COMMISSION UNDER THE LAWS OF THIS
STATE," NOTWITHSTANDING ANY ALLEGED CONTRARY EFFECT OF THE COMMERCE
CLAUSE UPON APPELLANT'S DIRECT SALES TO INDUSTRIAL USERS.  ACCORDINGLY
IT ISSUED ITS ORDER OF NOVEMBER 21, 1945, FOR THE FILING OF TARIFFS,
ETC., AS HAS BEEN STATED. 

EARLY IN 1946 PANHANDLE EASTERN BROUGHT THIS SUIT IN A STATE COURT TO
SET ASIDE AND ENJOIN ENFORCEMENT OF THE ORDER.  WHILE THE CAUSE WAS
PENDING THE COMMISSION ISSUED A SUPPLEMENTAL ORDER DECLINING
APPELLANT'S OFFER TO SUBMIT THE SPECIFIED TARIFFS, REPORTS, ETC., "AS
INFORMATION ONLY," AND REASSERTING ITS FULL REGULATORY POWER AS
CONFERRED BY THE INDIANA STATUTES.  FN5  63 P.U.R. (N.S.)  309. 

THE TRIAL COURT VACATED THE ORDERS AND ENJOINED THE COMMISSION FROM
ENFORCING THEM.  IT ACCEPTED APPELLANT'S VIEW OF THE EFFECT OF THE
COMMERCE CLAUSE ON ITS OPERATIONS.  THE SUPREME COURT OF INDIANA
REVERSED THAT JUDGMENT AND DENIED THE RELIEF APPELLANT SOUGHT.  224
IND. 662.  IT HELD FIRST THAT THE COMMISSION'S ORDERS AMOUNTED TO AN
UNEQUIVOCAL ASSERTION OF POWER TO REGULATE RATES AND SERVICE ON
APPELLANT'S DIRECT INDUSTRIAL SALES AND THUS PRESENTED SQUARELY THE
QUESTION OF THE COMMISSION'S JURISDICTION OVER SUCH SALES AS AFFECTED
BY THE COMMERCE CLAUSE.  THE COURT DID NOT FLATLY HOLD THAT THE SALES
ARE IN INTERSTATE RATHER THAN INTRASTATE COMMERCE.  BUT, TAKING THEM TO
BE OF THE FORMER KIND, IT HELD THEM NEVERTHELESS SUBJECT TO THE STATE'S
POWER OF REGULATION UNDER THE DOCTRINE OF COOLEY V. BOARD OF WARDENS,
12 HOW.  299.  THE COURT FURTHER HELD THAT APPELLANT, IN MAKING THESE
SALES, IS A PUBLIC UTILITY WITHIN THE MEANING AND APPLICATION OF THE
STATE'S REGULATORY STATUTES, BURNS IND. STATE.  ANN.  SECS. 54-105 AND
IND. ACTS 1945, C. 53, P. 110.  IT IS THIS DECISION WE HAVE TO REVIEW
PURSUANT TO SEC. 237 OF THE JUDICIAL CODE, 28 U.S.C. 344(A).  FN6 

THE EFFECT OF THE STATE STATUTES, WHETHER PERMITTING THE FILING OF
THE TARIFFS, ETC., AS INFORMATION UNRELATED TO FURTHER REGULATION OR
REQUIRING THE FILING AS INITIAL AND INTEGRAL STEPS IN THE REGULATORY
SCHEME, AND THUS AS PRESENTING AT THE THRESHOLD OF THE SCHEME'S
APPLICATION THE QUESTION OF THE STATE'S POWER TO GO FURTHER WITH IT, IS
PRIMARILY A QUESTION OF CONSTRUCTION FOR THE STATE COURTS TO
DETERMINE.  IN VIEW OF THE COMMISSION'S POSITION, AS CONSTRUED BY THE
STATE SUPREME COURT, WE CANNOT SAY THAT THE ONLY THING PRESENTLY
INVOLVED IS THE STATE'S POWER TO REQUIRE THE FILING OF INFORMATION
WITHOUT REFERENCE TO ITS FURTHER USE FOR CONTROLLING THESE SALES.  CF.
ARKANSAS LOUISIANA GAS CO. V. DEPARTMENT OF PUBLIC UTILITIES, 304 U.S.
61.  HERE THE ORDERS CONSTITUTED "AN UNEQUIVOCAL ASSERTION OF POWER" TO
REGULATE RATES AND SERVICE.  INDEED THEY INVOLVE SOMETHING MORE THAN A
MERE THREAT TO APPLY THE REGULATORY PLAN IN ITS LATER PHASES.  THEY
REPRESENT THE ACTUAL APPLICATION OF THAT PLAN IN ITS INITIAL STAGE.  IN
SUCH A SITUATION APPELLANT WAS NOT REQUIRED TO AWAIT A FURTHER
REGULATORY ORDER BEFORE CONTESTING THE COMMISSION'S JURISDICTION.  CF.
PUBLIC UTILITIES COMM'N V. GAS CO., 317 U.S. 456. 

THIS DOES NOT MEAN THAT WE NOW EXPRESS OPINION CONCERNING THE
VALIDITY OF ANY FURTHER ORDER WHICH THE COMMISSION MAY ENTER.  NO SUCH
ORDER IS BEFORE US.  IT DOES MEAN THAT WE ARE REQUIRED TO DECIDE
WHETHER THE SALES IN QUESTION LIE WITHIN THE SCOPE OF THE STATE'S POWER
TO REGULATE RATES AND SERVICE, SO THAT SOME FURTHER ORDER IN THOSE
RESPECTS MAY OR MAY NOT BE ENTERED. 

NOR DO WE QUESTION THAT THESE SALES ARE INTERSTATE TRANSACTIONS.  THE
CONTRARY SUGGESTION LEFT OPEN IN THE STATE SUPREME COURT'S TREATMENT
RESTS UPON THE VIEW THAT GAS TRANSPORTED INTERSTATE TAKES ON THE
CHARACTER OF A COMMODITY WHICH HAS COME TO REST OR BROKEN BULK WHEN IT
LEAVES THE MAIN TRANSMISSION LINE AND, UNDER REDUCED PRESSURE, ENTERS
BRANCH LINES OR LATERALS IRREVOCABLY ON ITS WAY TO FINAL DISTRIBUTION
OR CONSUMPTION.  THOSE MERELY MECHANICAL CONSIDERATIONS ARE NO LONGER
EFFECTIVE, IF EVER THEY WERE EXCLUSIVELY, TO DETERMINE FOR REGULATORY
PURPOSES THE INTERSTATE OR INTRASTATE CHARACTER OF THE CONTINUOUS
MOVEMENT AND RESULTING SALES WE HAVE HERE.  FN7 

THUS GAS FURNISHED TO LOCAL UTILITIES FOR RESALE IS SUPPLIED
UNQUESTIONABLY, BOTH AS TO TRANSPORTATION AND AS TO SALE, IN INTERSTATE
COMMERCE.  YET IT IS SUBJECTED TO PRACTICALLY IDENTICAL CHANGES IN
PRESSURE WITH THE GAS SOLD BY APPELLANT DIRECTLY FOR INDUSTRIAL USE. 
FN8 NEITHER PRACTICAL COMMON SENSE NOR CONSTITUTIONAL SENSE WOULD
TOLERATE HOLDING THAT REDUCTION IN PRESSURE MAKES THE INDUSTRIAL SALES
TO ANCHOR-HOCKING WHOLLY INTRASTATE FOR PURPOSES OF LOCAL REGULATION
WHILE DELIVERIES AT SIMILAR PRESSURES TO UTILITY COMPANIES REMAIN
EXCLUSIVELY INTERSTATE.  VARIATIONS IN MAIN PRESSURE ARE NOT THE
CRITERION OF THE STATES' REGULATORY POWERS UNDER THE COMMERCE CLAUSE. 
CF. INTERSTATE GAS CO. V. POWER COMM'N, 331 U.S. 682, 689.  THE SALES
HERE WERE CLEARLY IN INTERSTATE COMMERCE. 

THE CONTROLLING ISSUES THEREFORE ARE TWO:  (1) HAS CONGRESS, BY
ENACTING THE NATURAL GAS ACT, 52 STAT. 821, 15 U.S.C. SEC. 717, IN
EFFECT FORBIDDEN THE STATES TO REGULATE SUCH SALES AS THOSE APPELLANT
MAKES DIRECTLY TO INDUSTRIAL CONSUMERS; (2) IF NOT, ARE THOSE SALES OF
SUCH A NATURE, AS RELATED TO THE COOLEY FORMULA, THAT THE COMMERCE
CLAUSE OF ITS OWN FORCE FORBIDS THE STATES TO ACT. 

WE THINK THERE CAN BE NO DOUBT OF THE ANSWER TO BE GIVEN TO EACH OF
THESE QUESTIONS, NAMELY, THAT THE STATES ARE COMPETENT TO REGULATE THE
SALES.  THE TWO QUESTIONS MAY BEST BE CONSIDERED IN THE BACKGROUND OF
THE LEGISLATIVE HISTORY OF THE NATURAL GAS ACT AND OF THE JUDICIAL
HISTORY LEADING TO ITS ENACTMENT IN 1938. 

PRIOR TO THAT TIME THIS COURT IN A SERIES OF DECISIONS HAD DEALT WITH
VARIOUS SITUATIONS ARISING FROM STATE EFFORTS TO REGULATE THE SALE OF
IMPORTED NATURAL GAS.  THE STORY HAS BEEN ADEQUATELY TOLD  FN9  AND WE
DO NOT STOP TO REVIEW IT AGAIN OR ATTEMPT RECONCILIATION OF ALL THE
DECISIONS OR THEIR GROUNDINGS.  SUFFICE IT TO SAY THAT BY 1938 THE
COURT HAD DELINEATED BROADLY BETWEEN THE AREA OF PERMISSIBLE STATE
CONTROL AND THAT IN WHICH THE STATES COULD NOT INTRUDE.  THE FORMER
INCLUDED INTERSTATE DIRECT SALES TO LOCAL CONSUMERS, AS EXEMPLIFIED IN
PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMM'N, 252 U.S. 23; THE LATTER,
SERVICE INTERSTATE TO LOCAL DISTRIBUTING COMPANIES FOR RESALE, AS HELD
IN MISSOURI V. KANSAS GAS CO., 265 U.S. 298, REINFORCED BY PUBLIC
UTILITIES COMM'N V. ATTLEBORO CO., 273 U.S. 83. 

SHORTLY THEN, AS THE DECISIONS STOOD IN 1938, THE STATES COULD
REGULATE SALES DIRECT TO CONSUMERS, EVEN THOUGH MADE BY AN INTERSTATE
PIPE-LINE CARRIER.  THIS WAS TRUE OF SALES NOT ONLY FOR DOMESTIC AND
COMMERCIAL USES BUT ALSO FOR INDUSTRIAL CONSUMPTION, AT ANY RATE
WHENEVER THE INTERSTATE CARRIER ENGAGED IN DISTRIBUTION FOR ALL OF
THESE USES.  FN10  ON THE OTHER HAND, SALES FOR RESALE, USUALLY TO
LOCAL DISTRIBUTING COMPANIES, WERE BEYOND THE REACH OF STATE POWER,
REGARDLESS OF THE CHARACTER OF ULTIMATE USE.  THIS FACT NOT ONLY
PREVENTED THE STATES FROM REGULATING THOSE SALES BUT ALSO SERIOUSLY
HANDICAPPED THEM IN MAKING EFFECTIVE REGULATION OF SALES WITHIN THEIR
AUTHORITY.  FN11 

THIS IMPOTENCE OF THE STATES TO ACT IN RELATION TO SALES FOR RESALE
BY INTERSTATE CARRIERS BROUGHT ABOUT THE DEMAND FOR FEDERAL REGULATION
AND CONGRESS' RESPONSE IN THE NATURAL GAS ACT.  TO REACH THOSE SALES
AND PREVENT THE HIATUS IN REGULATION THEIR IMMUNITY CAUSED, THE ACT
DECLARED IN SEC. 1(B): 

"THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL-GAS." 

THIS SECTION DETERMINES THE ACT'S COVERAGE AND DOES SO IN THE LIGHT
OF THE SITUATION EXISTING AT THE TIME.  THREE THINGS AND THREE ONLY
CONGRESS DREW WITHIN ITS OWN REGULATORY POWER, DELEGATED BY THE ACT TO
ITS AGENT, THE FEDERAL POWER COMMISSION.  THESE WERE:  (1) THE
TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE; (2) ITS SALE IN
INTERSTATE COMMERCE FOR RESALE; AND (3) NATURAL GAS COMPANIES ENGAGED
IN SUCH TRANSPORTATION OR SALE. 

THE OMISSION OF ANY REFERENCE TO OTHER SALES, THAT IS, TO DIRECT
SALES FOR CONSUMPTIVE USE, IN THE AFFIRMATIVE DECLARATION OF COVERAGE
WAS NOT INADVERTENT.  IT WAS DELIBERATE.  FOR CONGRESS MADE SURE ITS
INTENT COULD NOT BE MISTAKEN BY ADDING THE EXPLICIT PROHIBITION THAT
THE ACT "SHALL NOT APPLY TO ANY OTHER  ...  SALE  ...."  THOSE WORDS
PLAINLY MEAN THAT THE ACT SHALL NOT APPLY TO ANY SALES OTHER THAN SALES
"FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC, COMMERCIAL,
INDUSTRIAL, OR ANY OTHER USE."  DIRECT SALES FOR CONSUMPTIVE USE OF
WHATEVER SORT WERE EXCLUDED. 

THE LINE OF THE STATUTE WAS THUS CLEAR AND COMPLETE.  IT CUT SHARPLY
AND CLEANLY BETWEEN SALES FOR RESALE AND DIRECT SALES FOR CONSUMPTIVE
USES.  NO EXCEPTIONS WERE MADE IN EITHER CATEGORY FOR PARTICULAR USES,
QUANTITIES OR OTHERWISE.  AND THE LINE DRAWN WAS THAT ONE AT WHICH THE
DECISIONS HAD ARRIVED IN DISTRIBUTING REGULATORY POWER BEFORE THE ACT
WAS PASSED.  FN12 

MOREOVER, THIS UNUSUAL LEGISLATIVE PRECISION WAS NOT EMPLOYED WITH
ANY VIEW TO RELIEVING OR EXEMPTING ANY SEGMENT OF THE INDUSTRY FROM
REGULATION.  THE ACT, THOUGH EXTENDING FEDERAL REGULATION, HAD NO
PURPOSE OR EFFECT TO CUT DOWN STATE POWER.  ON THE CONTRARY, PERHAPS
ITS PRIMARY PURPOSE WAS TO AID IN MAKING STATE REGULATION EFFECTIVE, BY
ADDING THE WEIGHT OF FEDERAL REGULATION TO SUPPLEMENT AND REINFORCE IT
IN THE GAP CREATED BY THE PRIOR DECISIONS.  FN13  THE ACT WAS DRAWN
WITH METICULOUS REGARD FOR THE CONTINUED EXERCISE OF STATE POWER, NOT
TO HANDICAP OR DILUTE IT IN ANY WAY.  THIS APPEARS NOT MERELY FROM THE
SITUATION WHICH LED TO ITS ADOPTION AND THE LEGISLATIVE HISTORY,
INCLUDING THE COMMITTEE REPORTS IN CONGRESS CITED ABOVE, BUT MOST
PLAINLY FROM THE HISTORY OF SEC. 1(B) IN RESPECT TO THE CHANGES WHICH
TOOK PLACE IN REACHING ITS FINAL FORM.  FN14 

IT WOULD BE AN EXCEEDINGLY INCONGRUOUS RESULT IF A STATUTE SO
MOTIVATED, DESIGNED AND SHAPED TO BRING ABOUT MORE EFFECTIVE
REGULATION, AND PARTICULARLY MORE EFFECTIVE STATE REGULATION, WERE
CONSTRUED IN THE TEETH OF THOSE OBJECTS, AND THE IMPORT OF ITS WORDING
AS WELL, TO CUT DOWN REGULATORY POWER AND TO DO SO IN A MANNER MAKING
THE STATES LESS CAPABLE OF REGULATION THAN BEFORE THE STATUTE'S
ADOPTION.  YET THIS, IN EFFECT, IS WHAT APPELLANT ASKS US TO DO.  FOR
THE ESSENCE OF ITS POSITION, APART FROM STANDING DIRECTLY ON THE
COMMERCE CLAUSE, IS THAT CONGRESS BY ENACTING THE NATURAL GAS ACT HAS
"OCCUPIED THE FIELD," I.E., THE ENTIRE FIELD OPEN TO FEDERAL
REGULATION, AND THUS HAS RELIEVED ITS DIRECT INDUSTRIAL SALES OF ANY
SUBORDINATION TO STATE CONTROL.    THE EXACT OPPOSITE IS THE FACT. 
CONGRESS, IT IS TRUE, OCCUPIED A FIELD.  BUT IT WAS METICULOUS TO TAKE
IN ONLY TERRITORY WHICH THIS COURT HAD HELD THE STATES COULD NOT
REACH.  FN15  THAT AREA DID NOT INCLUDE DIRECT CONSUMER SALES, WHETHER
FOR INDUSTRIAL OR OTHER USES.  THOSE SALES HAD BEEN REGULATED BY THE
STATES AND THE REGULATION HAD BEEN REPEATEDLY SUSTAINED.  IN NO
INSTANCE REACHING THIS COURT HAD IT BEEN STRICKEN DOWN.  FN16 

IT IS TRUE THAT NO CASE CAME HERE INVOLVING STATE REGULATION OF DIRECT
INDUSTRIAL SALES WHOLLY APART FROM SALES FOR OTHER USES.  IN THE CASES
SUSTAINING STATE POWER, WHETHER TO REGULATE OR TO TAX, THE COMPANY
MAKING THE INDUSTRIAL SALES WAS SELLING ALSO TO DOMESTIC AND COMMERCIAL
USERS.  FN17  BUT THERE WAS NO SUGGESTION, CERTAINLY NO DECISION, THAT
A DIFFERENT RESULT WOULD FOLLOW IF ONLY DIRECT INDUSTRIAL SALES WERE
BEING MADE.  NEITHER THE PRIOR JUDICIAL LINE NOR THE STATUTORY LINE WAS
DRAWN BETWEEN KINDS OF USE OR ON THE RELATION BETWEEN SALES FOR
DIFFERENT USES.  BOTH LINES WERE DRAWN BETWEEN SALES FOR USE, OF
WHATEVER KIND, AND SALES FOR RESALE.  CF. COLORADO INTERSTATE CO. V.
COMM'N, 324 U.S. 581, 595-596. 

THE NATURAL GAS ACT CREATED AN ARTICULATE LEGISLATIVE PROGRAM BASED
ON A CLEAR RECOGNITION OF THE RESPECTIVE RESPONSIBILITIES OF THE
FEDERAL AND STATE REGULATORY AGENCIES.  IT DOES NOT CONTEMPLATE
INEFFECTIVE REGULATION AT EITHER LEVEL.  WE HAVE EMPHASIZED REPEATEDLY
THAT CONGRESS MEANT TO CREATE A COMPREHENSIVE AND EFFECTIVE REGULATORY
SCHEME, COMPLEMENTARY IN ITS OPERATION TO THOSE OF THE STATES AND IN NO
MANNER USURPING THEIR AUTHORITY.  PUBLIC UTILITIES COMM'N V. GAS CO.,
317 U.S. 456, 467; POWER COMM'N V. HOPE GAS CO., 320 U.S. 591, 609-610;
INTERSTATE GAS CO. V. POWER COMM'N, 331 U.S. 682, 690.  AND, AS WAS
POINTED OUT IN POWER COMM'N V. HOPE GAS CO., SUPRA AT 610, "THE PRIMARY
AIM OF THIS LEGISLATION WAS TO PROTECT CONSUMERS AGAINST EXPLOITATION
AT THE HANDS OF NATURAL GAS COMPANIES."  THE SCHEME WAS ONE OF
COOPERATIVE ACTION  FN18  BETWEEN FEDERAL AND STATE AGENCIES.  IT COULD
ACCOMPLISH NEITHER THAT PROTECTIVE AIM NOR THE COMPREHENSIVE AND
EFFECTIVE DUAL REGULATION CONGRESS HAD IN MIND, IF THOSE COMPANIES
COULD DIVERT AT WILL ALL OR THE CREAM OF THEIR BUSINESS TO UNREGULATED
INDUSTRIAL USES.  FN19 

THE NATURAL GAS ACT THEREFORE WAS NOT MERELY INEFFECTIVE TO EXCLUDE
THE SALES NOW IN QUESTION FROM STATE CONTROL.  RATHER BOTH ITS POLICY
AND ITS TERMS CONFIRM THAT CONTROL.  MORE THAN "SILENCE" OF CONGRESS IS
INVOLVED.  THE DECLARATION, THOUGH NOT IDENTICAL IN TERMS WITH THE ONE
MADE BY THE MCCARRAN ACT, 59 STAT. 33, 15 U.S.C. SEC. 1011, CONCERNING
CONTINUED STATE REGULATION OF THE INSURANCE BUSINESS, IS IN EFFECT
EQUALLY CLEAR, IN VIEW OF THE ACT'S HISTORICAL SETTING, LEGISLATIVE
HISTORY AND OBJECTS, TO SHOW INTENTION FOR THE STATES TO CONTINUE WITH
REGULATION WHERE CONGRESS HAS NOT EXPRESSLY TAKEN OVER.  CF. PRUDENTIAL
INS. CO. V. BENJAMIN, 328 U.S. 408.  CONGRESS HAS UNDOUBTED POWER TO
DEFINE THE DISTRIBUTION OF POWER OVER INTERSTATE COMMERCE.  SOUTHERN
PACIFIC CO. V. ARIZONA, 325 U.S. 761, 769, AND AUTHORITIES CITED; CF.
PRUDENTIAL INS. CO. V. BENJAMIN, SUPRA.  HERE THE POWER HAS BEEN
EXERCISED IN A MANNER WHOLLY INCONSISTENT WITH EXCLUSION OF STATE
AUTHORITY OVER THE SALES IN QUESTION. 

CONGRESS' ACTION MOREOVER WAS AN UNEQUIVOCAL RECOGNITION OF THE VITAL
INTERESTS OF THE STATES AND THEIR PEOPLE, CONSUMERS AND INDUSTRY ALIKE,
IN THE REGULATION OF RATES AND SERVICE.  INDIANA'S INTEREST IN
APPELLANT'S DIRECT SALES IS OBVIOUS.  THAT INTEREST IS CERTAINLY NOT
LESS THAN THE INTEREST OF CALIFORNIA AND HER PEOPLE IN THEIR PROTECTION
AGAINST THE EVIL EFFECTS OF WHOLLY UNREGULATED SALE OF INSURANCE
INTERSTATE.  ROBERTSON V. CALIFORNIA, 328 U.S. 440.  NOT ONLY WOULD
INDUSTRIAL CONSUMERS IN MOST INSTANCES GO WITHOUT PROTECTION AS TO
RATES AND SERVICE OTHER THAN THAT SUPPLIED BY COMPETITION FROM OTHER
FUELS,  FN20  BUT THE STATE'S REGULATORY SYSTEM WOULD BE CRIPPLED AND
THE EFFORTS OF THE INDIANA COMMISSION SERIOUSLY HAMPERED IN PROTECTING
THE INTERESTS OF OTHER CLASSES OF USERS EQUALLY IF NOT MORE IMPORTANT. 
FN21 

AS AGAINST THESE VITAL LOCAL INTERESTS, BECOMING MORE IMPORTANT WITH
EVERY PASSING YEAR IN THE STEADY TRANSITION FROM USE OF MORE PRIMITIVE
FUELS TO NATURAL GAS AND FUEL OILS, APPELLANT SEEKS TO SET UP ITS OWN
INTEREST IN COMPLETE FREEDOM FROM REGULATION AND, IF ANY IS TO BE
IMPOSED, A SUPPOSED NATIONAL INTEREST IN UNIFORM REGULATION.  THE
NATIONAL INTEREST, CONSIDERED APART FROM ITS OWN, IS LARGELY ILLUSORY
ON THIS RECORD.  FOR ITSELF, THE COMPANY ASSERTS THAT STATE REGULATION
OF PRICES AND SERVICE WILL AMOUNT TO A POWER OF BLOCKING THE COMMERCE
OR IMPEDING ITS FREE FLOW. 

THERE ARE TWO ANSWERS.  ONE IS EXPERIENCE.  INSOFAR AS THIS PHASE OF
THE NATURAL GAS INDUSTRY HAS BEEN SUBJECTED TO STATE REGULATION TO
DATE, THOSE EFFECTS HAVE NOT BEEN SHOWN TO OCCUR.  THE OTHER ANSWER, IN
CASE THAT EXPERIENCE SHOULD VARY, IS THE POWER OF CONGRESS TO CORRECT
ABUSES IN REGULATION IF AND WHEN THEY APPEAR.  STATE POWER TO REGULATE
INTERSTATE COMMERCE, WHEREVER IT EXISTS, IS NOT THE POWER TO DESTROY
IT, UNLESS CONGRESS HAS EXPRESSLY SO PROVIDED.  FN22  IT IS THE POWER
TO REQUIRE THAT IT BE DONE ON TERMS REASONABLY RELATED TO THE NECESSITY
FOR PROTECTING THE LOCAL INTERESTS ON WHICH THE POWER RESTS. 

APPELLANT ALSO ENVISAGES CONFLICTING REGULATIONS BY THE COMMISSIONS
OF THE VARIOUS STATES ITS MAIN PIPE LINE SERVES, PARTICULARLY IN
RELATION TO CURTAILMENT OF SERVICE WHEN WEATHER CONDITIONS OR OTHERS
REQUIRE IT, AND FEARS CONFLICT ALSO BETWEEN THE STATE COMMISSIONS AND
THE FEDERAL POWER COMMISSION.  IT ASSIGNS THESE POSSIBILITIES IN
SUPPORT OF ITS VIEW THAT NATIONAL UNIFORM REGULATION ALONE IS
APPROPRIATE TO ITS OPERATIONS.  THERE IS NO EVIDENCE THUS FAR OF
SUBSTANTIAL CONFLICT IN EITHER RESPECT  FN23  AND WE DO NOT SEE THAT
THE PROBABILITY OF SERIOUS CONFLICT IS SO STRONG AS TO OUTWEIGH THE
VITAL LOCAL INTERESTS TO WHICH WE HAVE REFERRED REQUIRING REGULATION BY
THE STATES.  MOREOVER, IF SUCH CONFLICT SHOULD DEVELOP, THE MATTER OF
INTERRUPTING SERVICE IS ONE LARGELY RELATED, AS APPELLEES SAY, TO
TRANSPORTATION AND THUS WITHIN THE JURISDICTION OF THE FEDERAL POWER
COMMISSION TO CONTROL, IN ACCOMMODATION OF ANY CONFLICTING INTERESTS
AMONG VARIOUS STATES.  FN24 

THESE CONSIDERATIONS ALL WOULD LEAD TO THE CONCLUSION THAT THE STATES
ARE NOT MADE POWERLESS TO REGULATE THE SALES IN QUESTION BY ANY
SUPPOSED NECESSITY FOR UNIFORM NATIONAL REGULATION BUT THAT ON THE
CONTRARY THE MATTER IS OF SUCH HIGH LOCAL IMPORT AS TO JUSTIFY THEIR
CONTROL, EVEN IF CONGRESS HAD REMAINED WHOLLY SILENT AND GIVEN NO
INDICATION OF ITS INTENT THAT STATE REGULATION SHOULD BE EFFECTIVE. 
BUT IN THIS CASE, IN ADDITION TO THOSE CONSIDERATIONS TAKEN
INDEPENDENTLY, THE POLICY WHICH WE THINK CONGRESS HAS CLEARLY
DELINEATED FOR PERMITTING AND SUPPORTING STATE REGULATION REMOVES ANY
NECESSITY FOR DETERMINING THE EFFECT OF THE COMMERCE CLAUSE
INDEPENDENTLY OF ACTION BY CONGRESS AND TAKEN AS OPERATIVE IN ITS
SILENCE. 

THE ATTRACTIVE GAP WHICH APPELLANT HAS ENVISIONED IN THE COORDINATE
SCHEMES OF REGULATION IS A MIRAGE.  THE JUDGMENT OF THE SUPREME COURT
OF INDIANA IS AFFIRMED. 

FN1  THE COMMISSION IS AUTHORIZED TO TAKE THESE STEPS BY INDIANA
STATUTES CREATING THE STATE'S REGULATORY SCHEME FOR PUBLIC UTILITIES. 
BURNS IND. STAT. ANN. SECS. 54-101 ET SEQ. 

FN2  APPELLANT'S SALES TO ANCHOR-HOCKING ARE FAR LARGER THAN SALES
MADE TO SEVERAL OF THE LOCAL DISTRIBUTING COMPANIES.  THUS, IN 1943
APPELLANT SOLD 1,150,279 CUBIC FEET TO ANCHOR-HOCKING AND ONLY 151,065
CUBIC FEET TO THE LOCAL UTILITY SERVED FROM THE SAME BRANCH LINE.  SEE
NOTE 8 INFRA. 

FN3  THIS WAS IN 1941.  IN 1943 THE CHAIRMAN OF APPELLANT'S BOARD
STATED THAT "PANHANDLE WAS ANXIOUS TO TAKE OVER SUCH BUSINESS BECAUSE
IT WAS UNREGULATED TRANSACTION BOTH AS TO THE FEDERAL POWER COMMISSION
AND THE PUBLIC SERVICE COMMISSION OF INDIANA AND THAT HE INTENDED TO
ESTABLISH HIGHER INDUSTRIAL RATES BASED ON A COMPETITIVE FUEL BASIS." 

FN4  PRIOR TO THE HEARINGS BEFORE THE COMMISSION APPELLANT HAD
ENTERED INTO ARRANGEMENTS TO PROVIDE DIRECT INDUSTRIAL SERVICE TO AN
E.I. DUPONT DE NEMOURS & COMPANY PLANT NEAR FORTVILLE, INDIANA.  THAT
SERVICE WAS COMMENCED SUBSEQUENT TO THE HEARINGS. 

FN5  IN THE TRIAL COURT THE COMMISSION HAD URGED, AS IT STILL DOES,
THAT ITS FIRST ORDER MERELY REQUIRED THE FILING OF INFORMATION AND THAT
NO ACTION WOULD LIE TO CONTEST ITS POWER TO FIX RATES OR OTHERWISE
REGULATE THE SALES UNTIL THAT POWER WAS EXERCISED.  THIS RESULTED IN
BRINGING FORTH APPELLANT'S TENDER OF COMPLIANCE AS "INFORMATION ONLY,"
CONDITIONED UPON THE COMMISSION'S ACCEPTANCE OF THE FILING AS SUCH AND
WITHOUT PREJUDICE TO APPELLANT'S RIGHT TO CONTEST THE VALIDITY OF ANY
SUBSEQUENT ORDER.  THE SUPPLEMENTAL ORDER EXPRESSLY STATED THAT THE
FILING, IF ANY, WOULD BE DEEMED TO BE FOR THE PURPOSE OF AND AVAILABLE
FOR USE BY THE COMMISSION IN CARRYING OUT ITS FURTHER DUTIES UNDER THE
STATUTE. 

FN6  SEVERAL OF THE LOCAL UTILITY COMPANIES, WHICH HAD BEEN
INTERVENORS IN THE PROCEEDINGS BEFORE THE COMMISSION, WERE PERMITTED TO
INTERVENE IN THE COURT TEST OF THE ORDERS AND ARE APPELLEES HERE.  THE
NATIONAL ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS HAS FILED
A BRIEF AMICUS CURIAE IN SUPPORT OF THE COMMISSION'S POSITION. 

FN7  IN ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S. 498, 504,
THE COURT REFERRED TO EARLIER DECISIONS TURNED BY "APPLYING THIS
MECHANICAL TEST FOR DETERMINING WHEN INTERSTATE COMMERCE ENDS AND
INTRASTATE COMMERCE BEGINS," NAMELY, "UPON THE INTRODUCTION OF THE GAS
INTO THE SERVICE PIPES OF THE DISTRIBUTOR," AND THEN STATED:  "IN OTHER
CASES, THE COURT, IN DETERMINING THE VALIDITY OF STATE REGULATIONS, HAS
BEEN LESS CONCERNED TO FIND A POINT IN TIME AND SPACE WHERE THE
INTERSTATE COMMERCE IN GAS ENDS AND INTRASTATE COMMERCE BEGINS, AND HAS
LOOKED TO THE NATURE OF THE STATE REGULATION INVOLVED, THE OBJECTIVE OF
THE STATE, AND THE EFFECT OF THE REGULATION UPON THE NATIONAL INTEREST
IN THE COMMERCE.  CF. SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS.,
303 U.S. 177, 185, 187, ET SEQ.; CALIFORNIA V. THOMPSON, 313 U.S. 109,
113, 114; DUCKWORTH V. ARKANSAS (314 U.S.), P. 390."  314 U.S. AT 505. 

FN8  APPELLANT'S GAS ENTERS INDIANA IN A 22-INCH MAIN AT A PRESSURE
OF 250 POUNDS OR MORE PER SQUARE INCH.  IN THE STATE THE GAS ENTERS A
16-INCH BRANCH LINE AT A PRESSURE OF 200 POUNDS PER SQUARE INCH, AND
THEN A 6-INCH LATERAL LINE AT A PRESSURE OF 100 POUNDS PER SQUARE
INCH.  IN THE LATERAL LINE THE GAS IS TRANSPORTED TO TWO ADJACENT METER
HOUSES.  FROM ONE HOUSE GAS IS DELIVERED TO ANCHOR-HOCKING AT PRESSURES
AS LOW AS 10 POUNDS PER SQUARE INCH, WHILE FROM THE OTHER DELIVERIES
ARE MADE TO A LOCAL DISTRIBUTING COMPANY AT PRESSURES RANGING FROM 9 TO
25 POUNDS PER SQUARE INCH. 

SIMILARLY, GAS FROM OTHER LATERALS STEMMING FROM APPELLANT'S MAIN
LINE IS REDUCED TO A PRESSURE OF 16 POUNDS PER SQUARE INCH BEFORE BEING
FURNISHED TO THE DUPONT PLANT AND TO PRESSURES OF APPROXIMATELY 20
POUNDS PER SQUARE INCH FOR TWO UTILITY COMPANIES SERVED FROM THE SAME
LATERAL AS THE DUPONT PLANT. 

FN9  FOR A SUMMARY OF THE LEADING DECISIONS CONCERNING THE SALE AND
TRANSPORTATION OF GAS PRIOR TO THE PASSAGE OF THE NATURAL GAS ACT, SEE
ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S. 498, 504-505.  SEE
ALSO POWELL, NOTE, PHYSICS AND LAW - COMMERCE IN GAS AND ELECTRICITY,
58 HARV. L. REV. 1072; HOWARD, GAS AND ELECTRICITY IN INTERSTATE
COMMERCE, 18 MINN. L. REV. 611. 

FN10  APPELLANT CONTENDS THAT "WHOLESALE," I.E., LARGE QUANTITY,
SERVICE DIRECT TO INDUSTRIAL CONSUMERS, AS EXEMPLIFIED BY ITS SALES TO
ANCHOR-HOCKING, IS TO BE DISTINGUISHED FROM THE SALES IN PENNSYLVANIA
GAS CO. V. PUBLIC SERVICE COMM'N, 252 U.S. 23, WHICH WERE MADE IN A
MANNER COMMONLY ASSOCIATED WITH A LOCAL DISTRIBUTION SYSTEM SUPPLYING
GAS TO CONSUMERS IN A CITY.  NOTHING IN THE DECISION, HOWEVER, REQUIRES
IT TO BE SO LIMITED.  ON THE CONTRARY, EMPHASIS MAY RATHER BE PLACED ON
THE FACT THAT BOTH SITUATIONS INVOLVE SALES TO ULTIMATE CONSUMERS,
ANCHOR-HOCKING BEING JUST AS CLEARLY IN THAT CATEGORY AS THE "FACTORIES
AND RESIDENCES" SERVED BY THE COMPANY IN THE PENNSYLVANIA GAS CO.
CASE.  SEE ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S. 498, 505,
WHERE CHIEF JUSTICE STONE, IN SUMMARIZING THE PENNSYLVANIA GAS CO.
CASE, STATED THAT IT INVOLVED GAS "SOLD DIRECTLY TO ULTIMATE LOCAL
CONSUMERS"; JERSEY CENTRAL CO. V. POWER COMM'N, 319 U.S. 61, 78,
80(DISSENTING OPINION); POWELL, NOTE, 58 HARV. L. REV. 1072, 1082,
QUOTED INFRA NOTE 12. 

FN11  THE ATTLEBORO DECISION, 273 U.S. 83, HAD BEEN MADE IN THE FACE
OF THE RHODE ISLAND COMMISSION'S FINDING THAT THE NARRAGANSETT COMPANY
IN SELLING ELECTRIC CURRENT INTERSTATE TO THE ATTLEBORO COMPANY WAS
SUFFERING AN OPERATING LOSS WHILE THE RATES TO ITS OTHER CUSTOMERS
YIELDED A FAIR RETURN; AND OVER THE COMMISSION'S CONTENTIONS GROUNDED
ON THAT FINDING THAT IT COULD NOT EFFECTIVELY REGULATE RATES OF THE
NARRAGANSETT COMPANY TO ITS LOCAL CONSUMERS WITHOUT ALSO REGULATING ITS
RATES TO THE ATTLEBORO COMPANY. 

COMPARE THE MEMORANDUM SUBMITTED ON BEHALF OF THE NATIONAL
ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS BY ITS GENERAL
SOLICITOR, MR. JOHN E. BENTON, HEARING BEFORE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE ON H.R. 4008, 75TH CONG., 1ST SESS. 141, 143:
"SALES FOR INDUSTRIAL USE OUGHT NOT TO BE EXEMPT FROM ALL REGULATION,
FOR THE RESULT MAY VERY WELL BE THAT UNJUSTIFIABLE DISCRIMINATION WILL
RESULT, AND THERE WILL BE NO COMMISSION TO WHICH COMPLAINT MAY BE
MADE.  SALES FOR INDUSTRIAL USES PLAINLY OUGHT TO BE SUBJECT TO
REGULATION BY THE SAME COMMISSION WHICH REGULATES SALES TO OTHER
CLASSES OF CONSUMERS, SO THAT JUST AND REASONABLE RATES, FOR THE
SEVERAL CLASSES OF SERVICE, PROPERLY RELATED TO EACH OTHER, MAY BE
ESTABLISHED."    FN12  "  ...  (THE) SUPREME COURT HAS FROM THE
BEGINNING ALLOWED THE STATE BOTH TO TAX AND TO FIX THE PRICE ON THE
FIRST SALE OR DELIVERY OF GAS OR ELECTRICITY BROUGHT IN FROM A SISTER
STATE WHEN AND IF THIS FIRST SALE IS ALSO NECESSARILY THE LAST SALE
BECAUSE CONSUMMATED BY CONSUMPTION."  POWELL, NOTE, 58 HARV. L. REV.
1072, 1082. 

FN13  IN H.R. REP. NO. 709, 75TH CONG., 1ST SESS., THE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE SAID OF THE PROPOSED BILL WHICH BECAME
THE NATURAL GAS ACT:  "IT CONFERS JURISDICTION UPON THE FEDERAL POWER
COMMISSION OVER THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE
COMMERCE, AND THE SALE IN INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE
FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL,
OR ANY OTHER USE.  THE STATES HAVE, OF COURSE, FOR MANY YEARS REGULATED
SALES OF NATURAL GAS TO CONSUMERS IN INTRASTATE TRANSACTIONS.  THE
STATES HAVE ALSO BEEN ABLE TO REGULATE SALES TO CONSUMERS EVEN THOUGH
SUCH SALES ARE IN INTERSTATE COMMERCE, SUCH SALES BEING CONSIDERED
LOCAL IN CHARACTER AND IN THE ABSENCE OF CONGRESSIONAL PROHIBITION
SUBJECT TO STATE REGULATION.  (SEE PENNSYLVANIA GAS CO. V. PUBLIC
SERVICE COMMISSION (1920), 252 U.S. 23.)  THERE IS NO INTENTION IN
ENACTING THE PRESENT LEGISLATION TO DISTURB THE STATES IN THEIR
EXERCISE OF SUCH JURISDICTION.  HOWEVER, IN THE CASE OF SALES FOR
RESALE, OR SO-CALLED WHOLESALE SALES, IN INTERSTATE COMMERCE (FOR
EXAMPLE, SALES BY PRODUCING COMPANIES TO DISTRIBUTING COMPANIES) THE
LEGAL SITUATION IS DIFFERENT.  SUCH TRANSACTIONS HAVE BEEN CONSIDERED
TO BE NOT LOCAL IN CHARACTER AND, EVEN IN THE ABSENCE OF CONGRESSIONAL
ACTION, NOT SUBJECT TO STATE REGULATION.  (SEE MISSOURI V. KANSAS GAS
CO. (1924), 265 U.S. 298, AND PUBLIC UTILITIES COMMISSION V. ATTLEBORO
STEAM & ELECTRIC CO. (1927) 273 U.S. 83.)  THE BASIC PURPOSE OF THE
PRESENT LEGISLATION IS TO OCCUPY THIS FIELD IN WHICH THE SUPREME COURT
HAS HELD THAT THE STATES MAY NOT ACT." 

SEE ALSO H.R. REP. NO. 2651, 74TH CONG., 2D SESS. 1-3; SEN. REP. NO.
1162, 75TH CONG., 1ST SESS. 

FN14  IN THE HEARINGS ON H.R. 4008, THE BILL IN THE 75TH CONGRESS,
THE REPRESENTATIVE OF SEVERAL LARGE PIPE-LINE COMPANIES CONSTRUED SEC.
1(B) AS IT THEN STOOD TO EXEMPT SALES TO INDUSTRIAL CONSUMERS FROM ALL
REGULATION, STATE AS WELL AS FEDERAL, AND PROPOSED AN AMENDMENT
EXEMPTING SALES FOR RESALE, WHEN FOR INDUSTRIAL USE ONLY, FROM
REGULATION UNDER THE PROPOSED LEGISLATION.  HEARING BEFORE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE ON H.R. 4008, 75TH CONG., 1ST SESS.,
124.  IN AN ANSWERING MEMORANDUM, MR. BENTON POINTED OUT THE PIPE-LINE
REPRESENTATIVE'S MISUNDERSTANDING OF THE PURPOSES OF SEC. 1(B), STATING
THAT "SERVICE TO AN INDUSTRIAL USER IS JUST AS MUCH A LOCAL SERVICE
...  AS IS A SALE TO A HOUSEHOLDER FOR DOMESTIC USE" AND UNTIL
"CONGRESS OCCUPIES THE FIELD, A SALE FOR INDUSTRIAL USE IS ACCORDINGLY
SUBJECT TO STATE REGULATION  ...  "  ID. AT 143.  HE PROPOSED AN
ALTERNATIVE AMENDMENT TO RENDER IT CLEAR BEYOND DOUBT THAT FEDERAL
REGULATION OF SALES FOR RESALE EXTENDED TO TRANSACTIONS WHERE THE GAS
WAS TO BE USED FOR INDUSTRIAL PURPOSES ONLY.  ID. AT 142.  MR. BENTON'S
AMENDMENT WAS ADOPTED BY THE HOUSE COMMITTEE AND APPEARS IN
SUBSTANTIALLY UNALTERED FORM IN SEC. 1(B) OF THE NATURAL GAS ACT AS
FINALLY ENACTED.  IN H.R. REP. NO. 709, 75TH CONG., 1ST SESS., THE
COMMITTEE EMPHASIZED THAT MR. BENTON AND OTHER REPRESENTATIVES OF STATE
COMMISSIONS AND MUNICIPALITIES APPEARED IN SUPPORT OF THE BILL. 

IN SUPPORT OF ITS POSITION APPELLANT RELIES IN PART ON H.R. REP. NO.
800, 80TH CONG., 1ST SESS., FAVORABLY REPORTING H.R. 4051 AMENDING THE
NATURAL GAS ACT.  THIS BILL DID NOT BECOME LAW.  THE VIEWS EXPRESSED IN
THE COMMITTEE REPORT MADE IN 1947, SOME NINE YEARS AFTER THE NATURAL
GAS ACT'S PASSAGE, ARE HARDLY DETERMINATIVE OR, IN JUXTAPOSITION WITH
THE CONTEMPORANEOUS HISTORY, PERSUASIVE OF THE CONGRESSIONAL INTENT IN
PASSING THAT ACT. 

FN15  SEE NOTES 12 AND 13 SUPRA. 

FN16  IBID. 

FN17  PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMM'N, 252 U.S. 23,
APPEARS TO BE THE ONLY CASE FLATLY RULING THE POINT FOR REGULATORY
PURPOSES.  BUT ITS AUTHORITY WAS CLEARLY RECOGNIZED IN ILLINOIS GAS CO.
V. PUBLIC SERVICE CO., 314 U.S. 498, 505, CF. NOTE 10 SUPRA; MISSOURI
V. KANSAS GAS CO., 265 U.S. 298, 308; PUBLIC UTILITIES COMM'N V.
ATTLEBORO CO., 273 U.S. 83, 87, AND OTHER CASES, AS WELL AS IN THE
CONGRESSIONAL REPORT QUOTED IN NOTE 13. 

FN18  THE JURISDICTION GRANTED THE FEDERAL POWER COMMISSION BY THE
NATURAL GAS ACT NECESSITATES CLOSE CORRELATION WITH STATE REGULATORY
BODIES.  SECTION 17 OF THE ACT PROVIDES FOR COOPERATION BETWEEN THE
FEDERAL AND STATE AGENCIES.  SEE NOTE 23 AND TEXT. 

FN19  OVER 38 PER CENT OF THE GROSS REVENUES OF THE LOCAL INDIANA
UTILITIES FROM THE SALE OF GAS IS DERIVED FROM SERVICE TO THE
APPROXIMATELY 250 INDUSTRIAL CONSUMERS SERVED BY THEM.  IF SERVICE TO
ANY SUBSTANTIAL NUMBER OF THE INDUSTRIAL USERS WERE TO BE TAKEN OVER BY
APPELLANT, THE LOCAL UTILITIES NOT ONLY WOULD SUFFER GREAT LOSSES IN
REVENUE, BUT WOULD BE UNABLE TO DISPENSE WITH MORE THAN A TRIVIAL
PERCENTAGE OF THEIR PLANT PROPERTIES.  THE RESULTANT INCREASE IN UNIT
COST OF GAS WOULD LEAD NECESSARILY TO INCREASED RATES FOR THE CONSUMERS
SERVED BY THE LOCAL COMPANIES. 

FN20  PIPE-LINE SERVICE, BY THE VERY PHYSICAL CONDITIONS
CHARACTERIZING THE INDUSTRY AND MAGNITUDE OF INVESTMENT REQUIRED,
ACQUIRES LARGE MONOPOLISTIC EFFECTS, MORE PARTICULARLY IN MARKETING
AREAS DISTANT FROM PRODUCING ONES.  CF. POWER COMM'N V. HOPE GAS CO.,
320 U.S. 591, 610, N. 17 AND TEXT.  MOST OFTEN ITS COMPETITION IS WITH
OTHER FUELS RATHER THAN COMPETING PIPE LINES. 

FN21 SEE NOTE 19.  CF. MILK CONTROL BOARD V. EISENBERG FARM PRODUCTS,
306 U.S. 346; ROBERTSON V. CALIFORNIA, 328 U.S. 440, 448; INDUSTRIAL
GAS CO. V. PUBLIC UTILITIES COMM'N OF OHIO, 135 OHIO ST. 408, 412; RE
SERVICE GAS CO., 15 P.U.R. (N.S.)  202. 

FN22  KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENT. R. CO., 299 U.S.
334; CLARK DISTILLING CO. V. WESTERN MARYLAND R. CO., 242 U.S. 311;
UNITED STATES V. DARBY, 312 U.S. 100. 

FN23  THERE IS NO EVIDENCE OF ANY CONFLICT IN THE ASSERTED EXERCISE
OF JURISDICTION BY THE APPELLEE COMMISSION WITH ANY FUNCTIONS OF THE
FEDERAL POWER COMMISSION.  IN GRANTING APPELLANT PERMISSION UNDER SEC.
7(C) OF THE NATURAL GAS ACT TO EXTEND ITS FACILITIES TO SERVE THE
DUPONT PLANT, SEE NOTE 4 SUPRA, THE FEDERAL POWER COMMISSION
SPECIFICALLY PROVIDED THAT THE ORDER WAS "WITHOUT PREJUDICE TO THE
AUTHORITY OF THE INDIANA COMMISSION IN THE EXERCISE OF ANY JURISDICTION
WHICH IT MAY HAVE OVER THE SALE OR SERVICE PROPOSED TO BE RENDERED BY
PANHANDLE EASTERN TO DU PONT."  CF. NOTE 18. 

FN24  SEE NOTE 23. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






PATTON V. MISSISSIPPI, 332 U.S. 463 


NO. 122.  ARGUED NOVEMBER 21, 24, 1947.  - DECIDED DECEMBER 8, 1947.  -
201 MISS.  410, 29 SO.2D 96, REVERSED. 


1.  PETITIONER, A NEGRO, WAS INDICTED FOR MURDER BY AN ALL-WHITE GRAND
JURY AND CONVICTED BY AN ALL-WHITE PETIT JURY, NOTWITHSTANDING A TIMELY
MOTION TO QUASH THE INDICTMENT.  ALTHOUGH THERE WERE 12,511 ADULT
NEGROES IN THE COUNTY OUT OF A TOTAL ADULT POPULATION OF 34,821 AND
THERE WERE AT LEAST 25 NEGRO QUALIFIED MALE ELECTORS ELIGIBLE FOR JURY
SERVICE, THE VENIRES FOR THE TERM FROM WHICH THE GRAND AND PETIT JURIES
WERE SELECTED DID NOT CONTAIN THE NAME OF A SINGLE NEGRO AND NO NEGRO
HAD SERVED ON A GRAND OR PETIT CRIMINAL COURT JURY IN THE COUNTY FOR 30
YEARS.  HELD:  THE RECORD SUSTAINS PETITIONER'S CLAIM OF A SYSTEMATIC,
PURPOSEFUL, ADMINISTRATIVE EXCLUSION OF NEGROES FROM JURY DUTY CONTRARY
TO THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT; THE
CONVICTION IS REVERSED; AND THE CASE IS REMANDED FOR FURTHER
PROCEEDINGS.  PP. 465-469. 

2.  WHETHER THERE HAS BEEN SYSTEMATIC RACIAL DISCRIMINATION BY
ADMINISTRATIVE OFFICIALS IN THE SELECTION OF JURORS IS A QUESTION TO BE
DETERMINED FROM THE FACTS IN EACH PARTICULAR CASE.  P. 466. 

3.  THE FACT THAT NO NEGRO HAD SERVED ON A CRIMINAL COURT GRAND OR
PETIT JURY FOR A PERIOD OF 30 YEARS CREATED A STRONG PRESUMPTION THAT
NEGROES WERE SYSTEMATICALLY EXCLUDED FROM JURY SERVICE BECAUSE OF RACE;
AND IT BECAME THE STATE'S DUTY TO JUSTIFY SUCH AN EXCLUSION AS HAVING
BEEN BROUGHT ABOUT FOR SOME REASON OTHER THAN RACIAL DISCRIMINATION. 
P. 466. 

4.  SUCH A PRESUMPTION WAS NOT OVERCOME BY AN ATTEMPT TO DISPROVE
SYSTEMATIC RACIAL DISCRIMINATION IN THE SELECTION OF JURORS BY
PERCENTAGE CALCULATIONS APPLIED TO THE COMPOSITION OF A SINGLE VENIRE. 
P. 468. 

5.  WHEN A JURY SELECTION PLAN OPERATES IN SUCH A WAY AS ALWAYS TO
RESULT IN THE COMPLETE AND LONG-CONTINUED EXCLUSION OF ANY
REPRESENTATIVE AT ALL FROM A LARGE GROUP OF NEGROES, OR ANY OTHER
RACIAL GROUP, INDICTMENTS AND VERDICTS RETURNED AGAINST THEM BY JURIES
THUS SELECTED CANNOT STAND.  P. 469. 

PATTON V. MISSISSIPPI. 

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI. 

THE SUPREME COURT OF MISSISSIPPI AFFIRMED A STATE TRIAL COURT'S
DENIAL OF A MOTION TO QUASH AN INDICTMENT FOR MURDER BECAUSE OF
SYSTEMATIC RACIAL DISCRIMINATION IN THE SELECTION OF JURORS CONTRARY TO
THE FOURTEENTH AMENDMENT.  201 MISS.  410, 29 SO.2D 96.  THIS COURT
GRANTED CERTIORARI.  331 U.S. 804.  REVERSED AND REMANDED, P. 469. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, A NEGRO, WAS INDICTED IN THE CIRCUIT COURT OF
LAUDERDALE COUNTY, MISSISSIPPI, BY AN ALL-WHITE GRAND JURY, CHARGED
WITH THE MURDER OF A WHITE MAN.  HE WAS CONVICTED BY AN ALL-WHITE PETIT
JURY AND SENTENCED TO DEATH BY ELECTROCUTION.  HE HAD FILED A TIMELY
MOTION TO QUASH THE INDICTMENT ALLEGING THAT, ALTHOUGH THERE WERE
NEGROES IN THE COUNTY QUALIFIED FOR JURY SERVICE, THE VENIRES FOR THE
TERM FROM WHICH THE GRAND AND PETIT JURIES WERE SELECTED DID NOT
CONTAIN THE NAME OF A SINGLE NEGRO.  FAILURE TO HAVE ANY NEGROES ON THE
VENIRES, HE ALLEGED, WAS DUE TO THE FACT THAT FOR A GREAT NUMBER OF
YEARS PREVIOUSLY AND DURING THE THEN TERM OF COURT THERE HAD BEEN IN
THE COUNTY A "SYSTEMATIC, INTENTIONAL, DELIBERATE AND INVARIABLE
PRACTICE ON THE PART OF ADMINISTRATIVE OFFICERS TO EXCLUDE NEGROES FROM
THE JURY LISTS, JURY BOXES AND JURY SERVICE, AND THAT SUCH PRACTICE HAS
RESULTED AND DOES NOW RESULT IN THE DENIAL OF THE EQUAL PROTECTION OF
THE LAWS TO THIS DEFENDANT AS GUARANTEED BY THE 14TH AMENDMENT TO THE
U.S. CONSTITUTION."  IN SUPPORT OF HIS MOTION PETITIONER INTRODUCED
EVIDENCE WHICH SHOWED WITHOUT CONTRADICTION THAT NO NEGRO HAD SERVED ON
THE GRAND OR PETIT CRIMINAL COURT JURIES FOR THIRTY YEARS OR MORE. 
THERE WAS EVIDENCE THAT A SINGLE NEGRO HAD ONCE BEEN SUMMONED DURING
THAT PERIOD BUT FOR SOME UNDISCLOSED REASON HE HAD NOT SERVED, NOR HAD
HE EVEN APPEARED.  AND THERE WAS ALSO EVIDENCE FROM ONE JURY SUPERVISOR
THAT HE HAD, AT SOME INDEFINITE TIME, PLACED ON THE JURY LISTS THE
NAMES OF "TWO OR THREE" UNIDENTIFIED NEGROES.  IN 1940 THE ADULT
COLORED POPULATION OF LAUDERDALE COUNTY, ACCORDING TO THE UNITED STATES
CENSUS, WAS 12,511 OUT OF A TOTAL ADULT POPULATION OF 34,821. 

IN THE FACE OF THE FOREGOING THE TRIAL COURT OVERRULED THE MOTION TO
QUASH.  THE SUPREME COURT OF MISSISSIPPI AFFIRMED OVER PETITIONER'S
RENEWED INSISTENCE THAT HE HAD BEEN DENIED THE EQUAL PROTECTION OF THE
LAWS BY THE DELIBERATE EXCLUSION OF NEGROES FROM THE GRAND JURY THAT
INDICTED AND THE PETIT JURY THAT CONVICTED HIM.  201 MISS.  410, 29
SO.2D 96.  WE GRANTED CERTIORARI TO REVIEW THIS SERIOUS CONTENTION. 
FN1  331 U.S. 804. 

SIXTY-SEVEN YEARS AGO THIS COURT HELD THAT STATE EXCLUSION OF NEGROES
FROM GRAND AND PETIT JURIES SOLELY BECAUSE OF THEIR RACE DENIED NEGRO
DEFENDANTS IN CRIMINAL CASES THE EQUAL PROTECTION OF THE LAWS REQUIRED
BY THE FOURTEENTH AMENDMENT.  STRAUDER V. WEST VIRGINIA, 100 U.S.
303(1880).  A LONG AND UNBROKEN LINE OF OUR DECISIONS SINCE THEN HAS
REITERATED THAT PRINCIPLE, REGARDLESS OF WHETHER THE DISCRIMINATION WAS
EMBODIED IN STATUTE  FN2  OR WAS APPARENT FROM THE ADMINISTRATIVE
PRACTICES OF STATE JURY SELECTION OFFICIALS,  FN3  AND REGARDLESS OF
WHETHER THE SYSTEM FOR DEPRIVING DEFENDANTS OF THEIR RIGHTS WAS
"INGENIOUS OR INGENUOUS."  FN4 

WHETHER THERE HAS BEEN SYSTEMATIC RACIAL DISCRIMINATION BY
ADMINISTRATIVE OFFICIALS IN THE SELECTION OF JURORS IS A QUESTION TO BE
DETERMINED FROM THE FACTS IN EACH PARTICULAR CASE.  IN THIS CASE THE
MISSISSIPPI SUPREME COURT CONCLUDED THAT PETITIONER HAD FAILED TO PROVE
SYSTEMATIC RACIAL DISCRIMINATION IN THE SELECTION OF JURORS, BUT IN SO
CONCLUDING IT ERRONEOUSLY CONSIDERED ONLY THE FACT THAT NO NEGROES WERE
ON THE PARTICULAR VENIRE LISTS FROM WHICH THE JURIES WERE DRAWN THAT
INDICTED AND CONVICTED PETITIONER.  FN5  IT REGARDED AS IRRELEVANT THE
KEY FACT THAT FOR THIRTY YEARS OR MORE NO NEGRO HAD SERVED ON THE GRAND
OR PETIT JURIES.  THIS OMISSION SERIOUSLY DETRACTS FROM THE WEIGHT AND
RESPECT THAT WE WOULD OTHERWISE GIVE TO ITS CONCLUSION IN REVIEWING THE
FACTS, AS WE MUST IN A CONSTITUTIONAL QUESTION LIKE THIS.  FN6 

IT IS TO BE NOTED AT ONCE THAT THE INDISPUTABLE FACT THAT NO NEGRO
HAD SERVED ON A CRIMINAL COURT GRAND OR PETIT JURY FOR A PERIOD OF
THIRTY YEARS CREATED A VERY STRONG SHOWING THAT DURING THAT PERIOD
NEGROES WERE SYSTEMATICALLY EXCLUDED FROM JURY SERVICE BECAUSE OF
RACE.  FN7  WHEN SUCH A SHOWING WAS MADE, IT BECAME A DUTY OF THE STATE
TO TRY TO JUSTIFY SUCH AN EXCLUSION AS HAVING BEEN BROUGHT ABOUT FOR
SOME REASON OTHER THAN RACIAL DISCRIMINATION.  THE MISSISSIPPI SUPREME
COURT DID NOT CONCLUDE, THE STATE DID NOT OFFER ANY EVIDENCE, AND IN
FACT DID NOT MAKE ANY CLAIM, THAT ITS OFFICIALS HAD ABANDONED THEIR OLD
JURY SELECTION PRACTICES.  THE STATE SUPREME COURT'S CONCLUSION OF
JUSTIFICATION RESTED UPON THE FOLLOWING REASONING.  SECTION 1762 OF THE
MISSISSIPPI CODE ENUMERATES THE QUALIFICATIONS FOR JURY SERVICE, THE
MOST IMPORTANT OF WHICH APPARENTLY ARE THAT ONE MUST BE A MALE CITIZEN
AND "A QUALIFIED ELECTOR."  SECTIONS 241, 242, 243 AND 244 OF THE STATE
CONSTITUTION SET FORTH THE PREREQUISITES FOR QUALIFIED ELECTORS.  AMONG
OTHER THINGS, THESE PROVISIONS REQUIRE THAT EACH ELECTOR SHALL PAY AN
ANNUAL POLL TAX, PRODUCE SATISFACTORY PROOF OF SUCH PAYMENT, AND BE
ABLE TO READ ANY SECTION OF THE STATE CONSTITUTION, OR TO UNDERSTAND
THE SAME WHEN READ TO HIM, OR TO GIVE A REASONABLE INTERPRETATION
THEREOF.  THE EVIDENCE SHOWED THAT A VERY SMALL NUMBER OF NEGRO MALE
CITIZENS (THE COURT ESTIMATED ABOUT 25), AS COMPARED WITH WHITE MALE
CITIZENS, HAD MET THE REQUIREMENTS FOR QUALIFIED ELECTORS, AND THEREBY
BECOME ELIGIBLE TO BE CONSIDERED UNDER ADDITIONAL TESTS FOR JURY
SERVICE.  ON THIS SUBJECT THE STATE SUPREME COURT SAID: 

"OF THE 25 QUALIFIED NEGRO MALE ELECTORS THERE WOULD BE LEFT,
THEREFORE, AS THOSE NOT EXEMPT, 12 OR 13 AVAILABLE MALE NEGRO ELECTORS
AS COMPARED WITH 5,500 TO 6,000 MALE WHITE ELECTORS AS TO WHOM, AFTER
DEDUCTING 500 TO 1,000 EXEMPT, WOULD LEAVE A PROPORTION OF 5,000
NONEXEMPT WHITE JURORS TO 12 OR 13 NONEXEMPT NEGRO JURORS, OR ABOUT ONE
FOURTH OF ONE PER CENT NEGRO JURORS,  - 400 TO 1.  ...  FOR THE REASONS
ALREADY HERETOFORE STATED THERE WAS ONLY A CHANCE OF 1 IN 400 THAT A
NEGRO WOULD APPEAR ON SUCH A VENIRE AND AS THIS VENIRE WAS OF ONE
HUNDRED JURORS, THE SHERIFF, HAD HE BROUGHT IN A NEGRO, WOULD HAVE HAD
TO DISCRIMINATE AGAINST WHITE JURORS, NOT AGAINST NEGROES,  - HE COULD
NOT BE EXPECTED TO BRING IN ONE-FOURTH OF ONE NEGRO."  FN8  THE ABOVE
STATEMENT OF THE MISSISSIPPI SUPREME COURT ILLUSTRATES THE UNWISDOM OF
ATTEMPTING TO DISPROVE SYSTEMATIC RACIAL DISCRIMINATION IN THE
SELECTION OF JURORS BY PERCENTAGE CALCULATIONS APPLIED TO THE
COMPOSITION OF A SINGLE VENIRE.  FN9 

THE PETITIONER HERE POINTS OUT CERTAIN LEGISLATIVE RECORD EVIDENCE
FN10  OF WHICH IT IS CLAIMED WE CAN TAKE JUDICIAL NOTICE, AND WHICH IT
IS ASSERTED ESTABLISHES THAT THE REASON WHY THERE ARE SO FEW QUALIFIED
NEGRO ELECTORS IN MISSISSIPPI IS BECAUSE OF DISCRIMINATION AGAINST THEM
IN MAKING UP THE REGISTRATION LISTS.  BUT WE NEED NOT CONSIDER THAT
QUESTION IN THIS CASE.  FOR IT IS CLEAR FROM THE EVIDENCE IN THE RECORD
THAT THERE WERE SOME NEGROES IN LAUDERDALE COUNTY ON THE REGISTRATION
LIST.  IN FACT, IN 1945, THE CIRCUIT CLERK OF THE COUNTY, WHO IS
HIMSELF CHARGED WITH DUTIES IN ADMINISTERING THE JURY SYSTEM, SENT THE
NAMES OF EIGHT NEGROES TO THE JURY COMMISSIONER OF THE FEDERAL DISTRICT
COURT AS CITIZENS OF LAUDERDALE COUNTY QUALIFIED FOR FEDERAL JURY
SERVICE.  MOREOVER, THERE WAS EVIDENCE THAT THE NAMES OF FROM THIRTY TO
SEVERAL HUNDRED QUALIFIED NEGRO ELECTORS WERE ON THE REGISTRATION
LISTS.  BUT WHATEVER THE PRECISE NUMBER OF QUALIFIED COLORED ELECTORS
IN THE COUNTY, THERE WERE SOME; AND IF IT CAN POSSIBLY BE CONCEIVED
THAT ALL OF THEM WERE DISQUALIFIED FOR JURY SERVICE BY REASON OF THE
COMMISSION OF CRIME, HABITUAL DRUNKENNESS, GAMBLING, INABILITY TO READ
AND WRITE, OR TO MEET ANY OTHER OR ALL OF THE STATUTORY TESTS, WE DO
NOT DOUBT THAT THE STATE COULD HAVE PROVED IT.  FN11 

WE HOLD THAT THE STATE WHOLLY FAILED TO MEET THE VERY STRONG EVIDENCE
OF PURPOSEFUL RACIAL DISCRIMINATION MADE OUT BY THE PETITIONER UPON THE
UNCONTRADICTED SHOWING THAT FOR THIRTY YEARS OR MORE NO NEGRO HAD
SERVED AS A JUROR IN THE CRIMINAL COURTS OF LAUDERDALE COUNTY.  WHEN A
JURY SELECTION PLAN, WHATEVER IT IS, OPERATES IN SUCH WAY AS ALWAYS TO
RESULT IN THE COMPLETE AND LONG-CONTINUED EXCLUSION OF ANY
REPRESENTATIVE AT ALL FROM A LARGE GROUP OF NEGROES, OR ANY OTHER
RACIAL GROUP, INDICTMENTS AND VERDICTS RETURNED AGAINST THEM BY JURIES
THUS SELECTED CANNOT STAND.  AS WE POINTED OUT IN HILL V. TEXAS, 316
U.S. 400, 406, OUR HOLDING DOES NOT MEAN THAT A GUILTY DEFENDANT MUST
GO FREE.  FOR INDICTMENTS CAN BE RETURNED AND CONVICTIONS CAN BE
OBTAINED BY JURIES SELECTED AS THE CONSTITUTION COMMANDS. 

THE JUDGMENT OF THE MISSISSIPPI SUPREME COURT IS REVERSED AND THE
CASE IS REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  PETITIONER ALSO ARGUED THAT HIS CONVICTION WAS BASED SOLELY ON
AN EXTORTED CONFESSION; THAT USE OF THIS EXTORTED CONFESSION DENIED HIM
DUE PROCESS OF LAW; AND THAT THE CASE SHOULD BE REVERSED FOR THAT
REASON.  THE VIEW WE TAKE AS TO THE SYSTEMATIC EXCLUSION OF NEGRO
JURORS MAKES IT UNNECESSARY TO PASS ON THE ALLEGED EXTORTED
CONFESSION. 

FN2  BUSH V. KENTUCKY, 107 U.S. 110, 122. 

FN3  EX PARTE VIRGINIA, 100 U.S. 339; NEAL V. DELAWARE, 103 U.S. 370;
CARTER V. TEXAS, 177 U.S. 442; ROGERS V. ALABAMA, 192 U.S. 226; NORRIS
V. ALABAMA, 294 U.S. 587; HOLLINS V. OKLAHOMA, 295 U.S. 394; HALE V.
KENTUCKY, 303 U.S. 613; PIERRE V. LOUISIANA, 306 U.S. 354; SMITH V.
TEXAS, 311 U.S. 128; HILL V. TEXAS, 316 U.S. 400. 

FN4  SMITH V. TEXAS, 311 U.S. 128, 132. 

FN5  AKINS V. TEXAS, 325 U.S. 398, 403. 

FN6  NORRIS V. ALABAMA, 294 U.S. 587, 590; PIERRE V. LOUISIANA, 306
U.S. 354, 358; AKINS V. TEXAS, 325 U.S. 398, 402; FAY V. NEW YORK, 332
U.S. 261, 272. 

FN7 NEAL V. DELAWARE, 103 U.S. 370, 397; NORRIS V. ALABAMA, 294 U.S.
587, 591; PIERRE V. LOUISIANA, 306 U.S. 354, 361. 

FN8  ALTHOUGH THIS LATTER STATEMENT WAS MADE WITH PARTICULAR
REFERENCE TO THE SPECIAL VENIRE FROM WHICH THE PETIT JURY WAS DRAWN,
THE REASONING OF THE COURT APPLIED ALSO TO ITS GROUNDS FOR HOLDING THAT
THERE WAS NO DISCRIMINATION IN EXCLUDING NEGROES FROM THE GRAND JURY. 

FN9  AKINS V. TEXAS, 325 U.S. 398, 403. 

FN10  HEARINGS BEFORE SPECIAL COMMITTEE TO INVESTIGATE SENATORIAL
CAMPAIGN EXPENDITURES, 1946, 79TH CONG., 2D SESS. (1947). 

FN11  HILL V. TEXAS, 316 U.S. 400, 404-405. 
..END :























SILESIAN-AMERICAN CORP. V. CLARK, 332 U.S. 469 


NO. 6.  ARGUED MAY 1, 1947.  - REARGUED NOVEMBER 12, 1947.  - DECIDED
DECEMBER 8, 1947.  - 156 F.2D 793, AFFIRMED. 


1.  PURSUANT TO THE TRADING WITH THE ENEMY ACT, AS AMENDED BY THE
FIRST WAR POWERS ACT OF 1941, AND EXECUTIVE ORDER 9095, AS AMENDED, THE
ALIEN PROPERTY CUSTODIAN ISSUED AN ORDER VESTING IN HIMSELF TITLE TO
CERTAIN SHARES OF STOCK IN PETITIONER, A DELAWARE CORPORATION, AND
DIRECTING PETITIONER TO CANCEL THE CERTIFICATES FOR SUCH STOCK
OUTSTANDING ON ITS BOOKS AND TO ISSUE NEW CERTIFICATES TO THE
CUSTODIAN.  THE ORDER CONTAINED A FINDING THAT, ALTHOUGH PRIOR TO
AUGUST 31, 1939, THE SHARES STOOD ON THE BOOKS OF PETITIONER IN THE
NAME OF A SWISS CORPORATION, THEY WERE HELD FOR THE BENEFIT OF A GERMAN
CORPORATION, AND CONSTITUTED PROPERTY BELONGING TO A NATIONAL OF
GERMANY.  IT WAS CONTENDED THAT THE SHARES WERE PLEDGED TO CERTAIN
SWISS BANKS AS COLLATERAL FOR A LOAN.  HELD:  THE CUSTODIAN'S ORDER IS
VALID AND MUST BE COMPLIED WITH.  PP. 474-479. 

2.  PETITIONER HAS NO LEGAL INTEREST IN THE ISSUE AS TO OWNERSHIP OF
ITS STOCK AND NO STANDING TO REPRESENT THE INTERESTS OF ITS
SHAREHOLDERS OR PLEDGEES OF ITS STOCK.  P. 474. 

3.  UNDER THE WAR POWER, WHICH INCLUDES REASONABLE PREPARATION FOR
WAR, THE UNITED STATES, ACTING UNDER A STATUTE, MAY SUMMARILY REDUCE TO
POSSESSION IN FURTHERANCE OF THE WAR EFFORT ANY PROPERTY IN THIS
COUNTRY OF ANY ALIEN; AND THE PROBLEMS OF COMPENSATION MAY AWAIT THE
JUDICIAL PROCESS.  PP. 474-477. 

4.  THE VESTING ORDER OF THE CUSTODIAN WAS AUTHORIZED BY SEC. 5(B)(1)
OF THE TRADING WITH THE ENEMY ACT, AS AMENDED, AND EXECUTIVE ORDER
9095, AS AMENDED.  P. 477. 

(A)  THE FACT THAT THE STOCK CERTIFICATES DID NOT COME INTO THE HANDS
OF THE CUSTODIAN IS IMMATERIAL.  P. 477. 

(B)  THE POWER TO REQUIRE THE ISSUANCE OF NEW CERTIFICATES WAS
INCIDENTAL TO THE CUSTODIAN'S POWER TO VEST IN HIMSELF THE PROPERTY OF
A FOREIGN NATIONAL, INCLUDING STOCK OWNERSHIP IN AN AMERICAN
CORPORATION.  P. 477. 

5.  SECTIONS 5(B)(2) AND 7(E) OF THE TRADING WITH THE ENEMY ACT, AS
AMENDED, PROTECT PETITIONER FROM ANY LIABILITY TO BONA FIDE HOLDERS OF
ITS SHARES BY REASON OF ANY INFIRMITY IN THE CUSTODIAN'S VESTING ORDER
OR HIS DIRECTION THAT NEW CERTIFICATES BE ISSUED TO HIM.  PP. 477-478. 

6.  THE CUSTODIAN'S VESTING ORDER WAS NOT CONTRARY TO SEC. 8(A) OF
THE TRADING WITH THE ENEMY ACT, WHICH FORMERLY EXEMPTED PROPERTY
PLEDGED TO "ANY PERSON NOT AN ENEMY OR ALLY OF ENEMY"; BECAUSE THE
LATER ENACTMENT OF SEC. 5(B)(1) RENDERED SEC. 8(A) INAPPLICABLE TO THE
PROPERTY OF FRIENDLY ALIENS.  PP. 478-479. 

7.  THE CONSTITUTION GUARANTEES TO FRIENDLY ALIENS THE RIGHT TO JUST
COMPENSATION FOR THE REQUISITIONING OF THEIR PROPERTY BY THE UNITED
STATES; AND IT MUST BE ASSUMED THAT THE UNITED STATES WILL MEET ITS
OBLIGATIONS UNDER THE CONSTITUTION.  PP. 479-480. 

SILESIAN-AMERICAN CORP. ET AL. V. CLARK, ATTORNEY GENERAL, AS
SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

A BANKRUPTCY COURT INSTRUCTED A CORPORATION IN REORGANIZATION
PROCEEDINGS UNDER CHAPTER X TO COMPLY WITH AN ORDER OF THE ALIEN
PROPERTY CUSTODIAN VESTING IN HIMSELF SHARES OF THE CORPORATION'S STOCK
OUTSTANDING IN THE NAME OF A FRIENDLY ALIEN AND DIRECTING THE
CORPORATION TO CANCEL THE SHARES ON ITS BOOKS AND TO ISSUE NEW
CERTIFICATES THEREFOR TO THE CUSTODIAN.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  156 F.2D 793.  THIS COURT DENIED CERTIORARI, 329 U.S. 730;
BUT, ON REHEARING, GRANTED CERTIORARI AND SUBSTITUTED THE ATTORNEY
GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, AS THE PARTY
RESPONDENT.  330 U.S. 852.  AFFIRMED, P. 480. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE ALIEN PROPERTY CUSTODIAN ON NOVEMBER 17, 1942, EXECUTED VESTING
ORDER NO. 370.  THIS ORDER WAS ISSUED UNDER THE AUTHORITY OF THE
TRADING WITH THE ENEMY ACT, 40 STAT. 411, AS AMENDED, AND EXECUTIVE
ORDER NO. 9095, AS AMENDED, AND IN TERMS VESTED THE PROPERTY THEREIN
DESCRIBED IN THE ALIEN PROPERTY CUSTODIAN IN THE INTEREST AND FOR THE
BENEFIT OF THE UNITED STATES.  THE ORDER FOUND THE PROPERTY TO BELONG
TO A NATIONAL OF GERMANY.  THE PROPERTY COVERED BY THE ORDER WAS TWO
BLOCKS OF STOCK - ONE COMMON, ONE PREFERRED - IN THE SILESIAN AMERICAN
CORPORATION, A DELAWARE CORPORATION, HEREINAFTER CALLED SILESIAN.  THE
STOCK, PRIOR TO AUGUST 31, 1939, STOOD IN THE STOCK BOOK OF SILESIAN IN
THE NAME OF NON FERRUM GESELLSCHAFT ZUR FINANZIERUNG VON UNTERNEHMUNGEN
DES BERGBAUES UND DER INDUSTRIE DER NICHTEISENMETALLE, ZURICH,
SWITZERLAND, A SWISS CORPORATION, HEREINAFTER REFERRED TO AS THE NON
FERRUM COMPANY.  NON FERRUM, IT WAS DETERMINED BY THE CUSTODIAN'S
ORDER, HELD THE STOCK FOR THE BENEFIT OF BERGWERKSGESELLSCHAFT GEORG
VON GIESCHE'S ERBEN, A GERMAN CORPORATION.  THE CERTIFICATES, IT IS
ASSERTED, HAD BEEN DEPOSITED AS SECURITY FOR LOANS WITH A GROUP OF
BANKS, ALL OF WHICH APPARENTLY WERE CHARTERED BY SWITZERLAND AND ARE
HEREINAFTER REFERRED TO AS THE SWISS BANKS.  FN1 

TO CARRY OUT THE PURPOSE OF HIS VESTING ORDER, THE CUSTODIAN DIRECTED
SILESIAN TO CANCEL ON ITS BOOKS THE OUTSTANDING NON FERRUM
CERTIFICATES, ABOVE REFERRED TO, AND TO ISSUE IN LIEU THEREOF NEW
CERTIFICATES TO THE CUSTODIAN.  THIS CONTROVERSY REVOLVES AROUND THE
OBJECTION OF SILESIAN SO TO ACT BECAUSE THE CUSTODIAN DID NOT HAVE
PHYSICAL POSSESSION OF THE PLEDGED NON FERRUM CERTIFICATES SO AS TO BE
ABLE TO SURRENDER THEM FOR CANCELLATION, AS THE CORPORATION'S BY-LAWS
REQUIRED.  SILESIAN FEARED LIABILITY TO THE HOLDERS OF THE NON FERRUM
CERTIFICATES FOR ISSUING OTHER CERTIFICATES IN SUCH CIRCUMSTANCES. 

SILESIAN HAD BEEN A DEBTOR UNDER CHAPTER X OF THE BANKRUPTCY ACT
SINCE JULY 30, 1941.  IT THEREFORE ASKED THE BANKRUPTCY COURT FOR
INSTRUCTIONS AS TO ITS COMPLIANCE WITH THE CUSTODIAN'S DIRECTION.  THE
OTHER PETITIONER HERE, SILESIAN HOLDING COMPANY, A DELAWARE CORPORATION
ALSO, APPEARED AND THROUGHOUT HAS REMAINED AS A PARTY TO THIS
LITIGATION.  IT IS THE MAJORITY STOCKHOLDER OF SILESIAN BUT CLAIMS NO
DIFFERENT OR OTHER INTEREST IN THE ISSUE THAN SILESIAN.  FOR THE
PURPOSE OF THIS CASE, IT MAY AND WILL BE TREATED AS HAVING NO MORE
INTEREST IN THE ISSUE THAN SILESIAN HAS.  THE SWISS BANKS ASKED THE
REORGANIZATION COURT TO GIVE INSTRUCTIONS TO THE DEBTOR THAT NO NEW
SHARES BE ISSUED UNTIL THE CONTROVERSY BETWEEN THE SWISS BANKS AND THE
CUSTODIAN COULD BE "FULLY, FIRMLY AND FINALLY ADJUDICATED."  THIS
PRAYER WAS BASED ON A VERIFIED ANSWER TO SILESIAN'S REQUEST FOR
INSTRUCTION, WHICH ANSWER ALLEGED THAT THE "SWISS BANKS WERE THE OWNERS
OF THE 'NON FERRUM' STOCK."  THE SWISS BANKS NOTIFIED SILESIAN THAT ANY
ISSUE OF NEW CERTIFICATES REPRESENTING THE NON FERRUM STOCK, WITH OR
WITHOUT COURT DIRECTION, WOULD BE AT SILESIAN'S RISK.  AFFIDAVITS
SUPPORTING THE OBJECTION OF THE SWISS BANKS TO INSTRUCTIONS TO SILESIAN
TO ISSUE THE NEW CERTIFICATES TO THE CUSTODIAN WERE FILED WITH THE
DISTRICT COURT.  THESE AFFIDAVITS DECLARED THE NON FERRUM STOCK WAS
PLEDGED, PRIOR TO 1938, TO GROUPS OF SWISS BANKS.  IT IS NOT CLEAR
WHETHER THEY ARE THE SAME INSTITUTIONS THAT ARE NAMED IN THE ANSWER OF
THE SWISS BANKS TO THE DEBTOR'S REQUEST FOR INSTRUCTIONS.  FOR THE
PURPOSE OF THIS CASE, WE ASSUME THAT THE GROUPS ARE IDENTICAL. 

THE DISTRICT COURT INSTRUCTED THE DEBTOR TO ISSUE NEW CERTIFICATES TO
THE ALIEN PROPERTY CUSTODIAN.  THE COURT SAID: 

"THE VESTING ORDER OF THE CUSTODIAN FOUND THAT THE STOCK WAS HELD FOR
THE BENEFIT OF AN ENEMY.  THE STATUTORY DISCHARGE FROM LIABILITY, SEC.
5B OR SEC. 7E, (TRADING WITH THE ENEMY ACT) PROTECTS THE DEBTOR
CORPORATION AND RELIEVES IT OF DOUBT IN THE PREMISES." 

THE COURT ADDED: 

"WHATEVER MAY BE THE INTERESTS OR RIGHTS OF THE SWISS BANKS, THEY
CANNOT BE CONSIDERED HERE.  HEARSAY STATEMENTS, UNSUPPORTED BY
DOCUMENTS, ALLEGE THAT THESE BANKS ARE PLEDGEES OF THE STOCK.  THESE
STATEMENTS CREATE NO ISSUE FOR OUR CONSIDERATION.  THE BANKS ARE
PARTIES HEREIN ONLY TO THE EXTENT THAT THEY HAVE BEEN RECOGNIZED IN THE
REORGANIZATION PROCEEDING AS POSSIBLE OWNERS OF A CLAIMED INTEREST
WHICH THEY HAVE NEVER BEEN CALLED UPON TO PROVE.  THEY ARE NOT HERE
BECAUSE OF ANY ACTION TAKEN AGAINST THEM OR ANY RECOGNITION GIVEN THEM
BY THE CUSTODIAN OR EVEN BY REASON OF ANY ESTABLISHED INTEREST IN THE
STOCK." 

NO APPEAL TO THE CIRCUIT COURT OF APPEALS WAS TAKEN BY THE SWISS
BANKS.  THEY DO NOT APPEAR HERE AS PARTIES TO THIS WRIT OF CERTIORARI
OR OTHERWISE.  WE THEREFORE EXPRESS NO OPINION AS TO THE EFFECT OF THE
ORDER AND DECISION OF THE DISTRICT COURT UPON THE CLAIMS OF THE SWISS
BANKS AS PLEDGEES OF THE NON FERRUM STOCK.  SEE SILESIAN-AMERICAN
CORPORATION V. MARKHAM, 156 F.2D 793, 795. 

AN APPEAL WAS TAKEN TO THE CIRCUIT COURT OF APPEALS BY SILESIAN. 
THAT COURT AFFIRMED THE ORDER OF THE BANKRUPTCY COURT.  WE FIRST DENIED
A PETITION FOR CERTIORARI AND THEN GRANTED IT SO THAT THIS CASE MIGHT
BE CONSIDERED IN RELATION TO OTHER ISSUES, THEREAFTER PRESENTED HERE,
IN CONNECTION WITH THE ADMINISTRATION OF THE TRADING WITH THE ENEMY
ACT.  329 U.S. 730 AND 330 U.S. 852; CLARK V. UEBERSEE FINANZ
KORPORATION, 330 U.S. 813. 

IT WAS HELD BY THE CIRCUIT COURT OF APPEALS THAT SILESIAN HAD NO
"STANDING VICARIOUSLY" TO ASSERT THE INTERESTS OF ITS SHAREHOLDERS.  WE
AGREE.  SILESIAN HAS NO LEGAL INTEREST IN THE ISSUE AS TO THE OWNERSHIP
OF ITS STOCK.  IT FOLLOWS THAT SILESIAN HAS NO STANDING TO REPRESENT
THE INTERESTS OF THE PLEDGEES OF THE NON FERRUM SHARES, IF THAT IS THE
PRESENT POSITION OF THOSE SHARES.  SEE ANDERSON NAT. BANK V. LUCKETT,
321 U.S. 233, 242.  THIS REDUCES PETITIONERS' OBJECTION TO THE ORDER
DIRECTING THE ISSUE OF NEW CERTIFICATES IN FAVOR OF THE CUSTODIAN FOR
THE NON FERRUM STOCK TO THE CLAIM THAT THE SECTIONS OF THE TRADING WITH
THE ENEMY ACT UNDER WHICH THE CUSTODIAN ACTED ARE INVALID AS APPLIED TO
SILESIAN IN THESE CIRCUMSTANCES.  IF THE PROVISIONS DO NOT AUTHORIZE
THE ORDER AND DIRECTION, SILESIAN, OVER ITS OWN OBJECTIONS, CANNOT BE
COMPELLED TO OBEY. 

THE CUSTODIAN VESTED THE STOCK IN HIMSELF BY VIRTUE OF THE TRADING
WITH THE ENEMY ACT, AS AMENDED BY THE FIRST WAR POWERS ACT OF 1941,
INCLUDING, OF COURSE, SEC. 5(B)(1),  FN2  AND EXECUTIVE ORDER NO. 9095,
C.F.R. CUM. SUPP. 1121, AS AMENDED 1174.  THIS PROPERTY WAS VESTED
DURING WAR.  THERE IS NO DOUBT BUT THAT UNDER THE WAR POWER,  FN3  AS
HERETOFORE INTERPRETED BY THIS COURT, THE UNITED STATES, ACTING UNDER A
STATUTE, MAY VEST IN ITSELF THE PROPERTY OF A NATIONAL OF AN ENEMY
NATION.  UNQUESTIONABLY TO WAGE WAR SUCCESSFULLY, THE UNITED STATES MAY
CONFISCATE ENEMY PROPERTY.  UNITED STATES V. CHEMICAL FOUNDATION, 272
U.S. 1, 11.  NOR CAN THERE, WE THINK, BE ANY DOUBT THAT ANY PROPERTY IN
THIS COUNTRY OF ANY ALIEN MAY BE SUMMARILY REDUCED TO POSSESSION BY THE
UNITED STATES IN FURTHERANCE OF THE WAR EFFORT.  EVERY RESOURCE WITHIN
THE AMBIT OF SOVEREIGN POWER IS SUBJECT TO USE FOR THE NATIONAL
DEFENSE.  THIS SECTION WAS AMENDED DURING WAR TO COVER THE TAKING OF
ALIEN PROPERTY.  IT IS LIMITED TO A WAR OR A DECLARED EMERGENCY
PERIOD.  WHILE A NATURAL HESITANCY EXISTS AGAINST SO INTERPRETING THE
WAR POWER CLAUSE AS TO EXPAND ITS SCOPE TO COVER INCIDENTS NOT
INTIMATELY CONNECTED WITH WAR, WE THINK REASONABLE PREPARATION FOR THE
STORM OF WAR IS A PROPER EXERCISE OF THE WAR POWER.  THIS SEIZURE OF
ALIEN PROPERTY, IN A TIME OF EMERGENCY, IS OF THAT CHARACTER.  WE NEED
NOT CONSIDER WHETHER THE GENERAL WELFARE CLAUSE COULD BE A SOURCE OF
CONGRESSIONAL POWER OVER ALIEN PROPERTY.  FN4  THIS TAKING MAY BE DONE
AS A MEANS OF AVOIDING THE USE OF THE PROPERTY TO DRAW EARNINGS OR
WEALTH OUT OF THIS COUNTRY TO TERRITORY WHERE IT MAY MORE LIKELY BE
USED TO ASSIST THE ENEMY THAN IF IT REMAINS IN THE HANDS OF THIS
GOVERNMENT.  OR THE COMMANDEERED PROPERTY OF A FRIENDLY ALIEN MAY BE
USED TO PROSECUTE THE WAR.  THE PROBLEMS OF COMPENSATION MAY AWAIT THE
JUDICIAL PROCESS.  CENTRAL UNION TRUST CO. V. GARVAN, 254 U.S. 554, 567
68.  WAR BROOKS NO DELAY.  THE CONSTITUTION IMPOSES NONE. 

THE SECTION, 5(B)(1), AND EXECUTIVE ORDER UNDER WHICH THE CUSTODIAN
ACTED AUTHORIZED THE VESTING IN HIM BY HIS ORDER OF THE PROPERTY OF A
FOREIGN NATIONAL.  THIS DESCRIPTION COVERED STOCK OWNERSHIP OF A
FOREIGN NATIONAL IN SILESIAN.  THE FACT THAT THE CERTIFICATES DID NOT
COME INTO THE HANDS OF THE CUSTODIAN IS IMMATERIAL.  THEY ARE EVIDENCES
OF THE PROPERTY RIGHT OF THE FOREIGN NATIONAL IN SILESIAN THAT IS
SUBJECT TO BE VESTED IN THE CUSTODIAN BY THE ACT.  SEE GREAT NORTHERN
R. CO. V. SUTHERLAND, 273 U.S. 182.  SECTION 5(B)(1) SPECIFICALLY
STATES, "AND SUCH DESIGNATED AGENCY OR PERSON MAY PERFORM ANY AND ALL
ACTS INCIDENT TO THE ACCOMPLISHMENT OR FURTHERANCE OF THESE PURPOSES." 
SEE NOTE 2 ABOVE.  SINCE THE CUSTODIAN WAS AUTHORIZED TO VEST AND TO
SELL THE PROPERTY BY SEC. 5, WE THINK THAT THE POWER TO REQUIRE THE
ISSUE OF NEW CERTIFICATES WAS INCIDENTAL TO THAT AUTHORITY.  AS ONE
PURPOSE OF SEC. 5(B)(1) WAS TO AUTHORIZE THE SEIZURE OF THE INTERESTS
OF FOREIGN NATIONALS IN DOMESTIC CORPORATIONS SO THAT SUCH INTEREST
COULD BE USED OR SOLD, SUCH AUTHORITY TO PARTICIPATE IN MANAGEMENT OR
TO TRANSFER THE STOCK INTERESTS WOULD BE FRUSTRATED IF CUSTOMARY
EVIDENCES OF THE OWNERSHIP COULD NOT BE REQUIRED FROM THE CORPORATION. 
THE POWER OF THE CUSTODIAN TO DEMAND THE CERTIFICATES IS PLAIN.  THE
CORRELATIVE DUTY TO OBEY THE ORDER EQUALLY SO, IF THE EFFECT OF
OBEDIENCE DOES NOT DO VIOLENCE TO OTHER VALID REQUIREMENTS OF THE
STATUTE OR MAKE SILESIAN LIABLE TO BONA FIDE HOLDERS OF THE OLD STOCK. 

SILESIAN IN SPECIFIC TERMS IS PROTECTED FROM ANY LIABILITY TO BONA
FIDE HOLDERS SUCH AS NON FERRUM OR THE SWISS BANKS BY REASON OF ANY
INFIRMITY IN THE CUSTODIAN'S VESTING ORDER OR HIS DIRECTION TO SILESIAN
TO ISSUE NEW CERTIFICATES FOR THE NON FERRUM STOCK.  THE APPLICABLE
LANGUAGE OF SEC. 7(E) OF THE TRADING WITH THE ENEMY ACT, 40 STAT. 418,
AND SEC. 5(B)(2), AS AMENDED, 55 STAT. 839-40, ARE SET OUT IN THE
MARGIN.  FN5  BUT SILESIAN ARGUES THAT PROTECTION CANNOT FOLLOW FROM AN
ORDER CONTRARY TO THE TRADING WITH THE ENEMY ACT.  THE ORDER TO ISSUE
THE NEW CERTIFICATES IS SAID TO BE UNAUTHORIZED BECAUSE IT ALLOWS THE
PROPERTY OF FRIENDLY ALIEN PLEDGEES, THE SWISS BANKS, TO BE TAKEN
CONTRARY TO SEC. 8(A).  FN6  SECTION 8(A) IS SAID TO BE A LIMITATION ON
THE CUSTODIAN'S POWER TO SEIZE PROPERTY PLEDGED TO "ANY PERSON NOT AN
ENEMY OR ALLY OF ENEMY."  IT IS SUGGESTED THAT IF SEC. 7(E) OR SEC.
5(B)(2) IS INTERPRETED TO REQUIRE SILESIAN TO CARRY OUT THE CUSTODIAN'S
DIRECTION, EVEN THOUGH THIS SEIZURE IS CONTRARY TO SEC. 8(A), A WAY HAS
BEEN FOUND TO "COERCE AN INTERESTED PARTY (SILESIAN) INTO COMPLIANCE
WITH HIS (THE CUSTODIAN'S) UNLAWFUL ACTIONS."  THE ANSWER TO THIS
CONTENTION IS MADE BY THE CIRCUIT COURT OF APPEALS.  IT MAKES
UNNECESSARY ANY DISCUSSION OF THE PROTECTION AFFORDED SILESIAN BY SEC.
7(E) AND SEC. 5(B)(2) FROM THE CLAIMS OF A PLEDGE OF STOCK EXEMPTED BY
STATUTE FROM SEIZURE.  156 F.2D AT 797.  WHEN SEC. 5(B)(1) WAS ENACTED
AS AN AMENDMENT IN THE FIRST WAR POWERS ACT OF 1941, IT AUTHORIZED THE
TAKING OF ANY PROPERTY OR INTEREST THEREIN OF ANY FOREIGN NATIONAL. 
THIS BROADENING OF THE SCOPE OF THE CUSTODIAN'S POWER TO VEST SO AS TO
INCLUDE INTERESTS OF FRIENDLY ALIENS IN PROPERTY INCLUDES THE POWER TO
VEST THE INTEREST WHICH FRIENDLY ALIENS HAVE FROM PLEDGES.  AS THE
CIRCUIT COURT OF APPEALS SAID, P. 797: 

"ANY OTHER INTERPRETATION OF THE SECTION WOULD MAKE THE PLEDGES OF
FRIENDLY ALIENS A WHOLLY IRRATIONAL EXCEPTION TO THE GENERAL PURPOSE TO
SUBJECT ALL ALIEN INTERESTS TO SEIZURE." 

THEREFORE, AS WE HOLD THAT SEC. 5(B)(1) RENDERED SEC. 8(A)
INAPPLICABLE TO THE PROPERTY OF FRIENDLY ALIENS, THE ORDER OF THE
CUSTODIAN WAS VALID AND SILESIAN'S OBJECTION DISAPPEARS. 

FINALLY THERE IS THE ARGUMENT THAT SILESIAN CANNOT BE COMPELLED TO
ISSUE THE NEW CERTIFICATES BECAUSE THE FRIENDLY ALIENS WHO CLAIM
INTERESTS IN THE NON FERRUM STOCK MAY NOT SUCCEED IN RECOVERING THE
JUST COMPENSATION FOR THE TAKING.  SEE RUSSIAN VOLUNTEER FLEET V.
UNITED STATES, 282 U.S. 481, 489.  FN7  THE CONSTITUTION GUARANTEES TO
FRIENDLY ALIENS THE RIGHT TO JUST COMPENSATION FOR THE REQUISITIONING
OF THEIR PROPERTY BY THE UNITED STATES.  RUSSIAN FLEET V. UNITED
STATES, SUPRA.  WE MUST ASSUME THAT THE UNITED STATES WILL MEET ITS
OBLIGATIONS UNDER THE CONSTITUTION.  CONSEQUENTLY, FRIENDLY ALIENS WILL
BE COMPENSATED FOR ANY PROPERTY TAKEN AND SILESIAN IS PROTECTED BY THE
EXCULPATORY CLAUSES OF THE ACT FROM ANY CLAIM FROM ITS ALIEN
STOCKHOLDERS.  JUDGMENT AFFIRMED.    FN1  THEY ARE UNION BANK OF
SWITZERLAND, LA ROCHE & COMPANY, BANQUE CANTONALE DE BERNE, AND
AKTIENGESELLSCHAFT LEU & COMPANY.    FN2  TRADING WITH THE ENEMY ACT,
40 STAT. 411, AS AMENDED BY THE FIRST WAR POWERS ACT OF 1941, 55 STAT.
839, SEC. 5(B)(1): 

"DURING THE TIME OF WAR OR DURING ANY OTHER PERIOD OF NATIONAL
EMERGENCY DECLARED BY THE PRESIDENT, THE PRESIDENT MAY, THROUGH ANY
AGENCY THAT HE MAY DESIGNATE, OR OTHERWISE, AND UNDER SUCH RULES AND
REGULATIONS AS HE MAY PRESCRIBE, BY MEANS OF INSTRUCTIONS, LICENSES, OR
OTHERWISE - 

     .         .       .         .         . 

"(B)  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, 

BY ANY PERSON, OR WITH RESPECT TO ANY PROPERTY, SUBJECT TO THE
JURISDICTION OF THE UNITED STATES; AND ANY PROPERTY OR INTEREST OF ANY
FOREIGN COUNTRY OR NATIONAL THEREOF SHALL VEST, WHEN, AS, AND UPON THE
TERMS, DIRECTED BY THE PRESIDENT, IN SUCH AGENCY OR PERSON AS MAY BE
DESIGNATED FROM TIME TO TIME BY THE PRESIDENT, AND UPON SUCH TERMS AND
CONDITIONS AS THE PRESIDENT MAY PRESCRIBE SUCH INTEREST OR PROPERTY
SHALL BE HELD, USED, ADMINISTERED, LIQUIDATED, SOLD, OR OTHERWISE DEALT
WITH IN THE INTEREST OF AND FOR THE BENEFIT OF THE UNITED STATES, AND
SUCH DESIGNATED AGENCY OR PERSON MAY PERFORM ANY AND ALL ACTS INCIDENT
TO THE ACCOMPLISHMENT OR FURTHERANCE OF THESE PURPOSES; ...  " 

FN3  ART. I, SEC. 8, CL. 11. 

FN4  COMPARE WITH THE STATEMENT BELOW:  "THE POWER OF CONGRESS TO
SEIZE AND CONFISCATE ENEMY PROPERTY RESTS UPON ART. 1, SEC. 8, CLAUSE
11 OF THE CONSTITUTION.  STOEHR V. WALLACE, SUPRA, 255 U.S. AT PAGE 242
...  ; UNITED STATES V. CHEMICAL FOUNDATION, INC., 272 U.S. 1, 11  ...
WHETHER IT EXISTS AT INTERNATIONAL LAW MAY BE DOUBTED; BUT NOBODY
CONTENDS THAT THE WAR POWER OF CONGRESS INCLUDES THE SEIZURE OF THE
PROPERTY OF FRIENDLY ALIENS.  THE AMENDMENT OF SEC. 5(B) MUST THEREFORE
REST UPON SOME OTHER POWER OF CONGRESS, NOT ONLY FOR THAT REASON, BUT
BECAUSE THE AMENDMENT ITSELF WAS EXPRESSLY NOT LIMITED TO TIME OF WAR
(ALTHOUGH IT WAS IN FACT PASSED FLAGRANTE BELLO) BUT WAS TO GO INTO
EFFECT UPON ANY 'NATIONAL EMERGENCY DECLARED.'  IT CAN REST UPON ART.
1, SEC. 8, CLAUSE 1:  I.E. UPON THE POWER 'TO PROVIDE FOR THE COMMON
DEFENCE AND GENERAL WELFARE'; INDEED, SO FAR AS WE CAN SEE, THE DEBTOR
DOES NOT CHALLENGE THE POWER ITSELF, BUT ITS EXERCISE.  IT COMPLAINS
THAT THE AMENDMENT DELEGATES AN UNRESTRICTED DISCRETION TO THE
PRESIDENT, AND DOES NOT PROVIDE 'JUST COMPENSATION' FOR SEIZURES."  156
F.2D 793, 796. 

FN5  40 STAT. 418, SEC. 7(E): 

"NO PERSON SHALL BE HELD LIABLE IN ANY COURT FOR OR IN RESPECT TO
ANYTHING DONE OR OMITTED IN PURSUANCE OF ANY ORDER, RULE, OR REGULATION
MADE BY THE PRESIDENT UNDER THE AUTHORITY OF THIS ACT." 

55 STAT. 840, SEC. 5(B)(2): 

"ANY PAYMENT, CONVEYANCE, TRANSFER, ASSIGNMENT, OR DELIVERY OF
PROPERTY OR INTEREST THEREIN, MADE TO OR FOR THE ACCOUNT OF THE UNITED
STATES, OR AS OTHERWISE DIRECTED, PURSUANT TO THIS SUBDIVISION OR ANY
RULE, REGULATION, INSTRUCTION, OR DIRECTION ISSUED HEREUNDER SHALL TO
THE EXTENT THEREOF BE A FULL ACQUITTANCE AND DISCHARGE FOR ALL PURPOSES
OF THE OBLIGATION OF THE PERSON MAKING THE SAME; AND NO PERSON SHALL BE
HELD LIABLE IN ANY COURT FOR OR IN RESPECT TO ANYTHING DONE OR OMITTED
IN GOOD FAITH IN CONNECTION WITH THE ADMINISTRATION OF, OR IN PURSUANCE
OF AND IN RELIANCE ON, THIS SUBDIVISION, OR ANY RULE, REGULATION,
INSTRUCTION, OR DIRECTION ISSUED HEREUNDER." 

FN6  40 STAT. 418-19, SEC. 8(A): 

"THAT ANY PERSON NOT AN ENEMY OR ALLY OF ENEMY HOLDING A LAWFUL
MORTGATE, PLEDGE, OR LIEN, OR OTHER RIGHT IN THE NATURE OF SECURITY IN
PROPERTY OF AN ENEMY OR ALLY OF ENEMY WHICH, BY LAW OR BY THE TERMS OF
THE INSTRUMENT CREATING SUCH MORTGAGE, PLEDGE, OR LIEN, OR RIGHT, MAY
BE DISPOSED OF ON NOTICE OR PRESENTATION OR DEMAND  ...  MAY CONTINUE
TO HOLD SAID PROPERTY, AND, AFTER DEFAULT, MAY DISPOSE OF THE PROPERTY
...  PROVIDED FURTHER, THAT IF, ON ANY SUCH DISPOSITION OF PROPERTY, A
SURPLUS SHALL REMAIN AFTER THE SATISFACTION OF THE MORTGAGE, PLEDGE,
LIEN, OR OTHER RIGHT IN THE NATURE OF SECURITY, NOTICE OF THAT FACT
SHALL BE GIVEN TO THE PRESIDENT PURSUANT TO SUCH RULES AND REGULATIONS
AS HE MAY PRESCRIBE, AND SUCH SURPLUS SHALL BE HELD SUBJECT TO HIS
FURTHER ORDER." 

FN7  THE CIRCUIT COURT OF APPEALS SAID:  "THUS IT CAN BE ARGUED WITH
MUCH FORCE THAT, UNLESS SOME PROVISION CAN BE FOUND BY WHICH HE MAY
SECURE COMPENSATION, SEC. 5(B) IS UNCONSTITUTIONAL; AND, IF SO, IT
WOULD AT BEST BE DOUBTFUL WHETHER THE PROTECTION GIVEN BY SUBSECTION
(2) WOULD BE VALID."  156 F.2D 793, 797. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







CLARK V. UEBERSEE FINANZ-KORP., 332 U.S. 480 


NO. 35.  ARGUED MAY 1, 1947.  - REARGUED NOVEMBER 12, 1947.  - DECIDED
DECEMBER 8, 1947.  - 81 U.S. APP. D.C. 284, 158 F.2D 313, AFFIRMED. 


1.  RESPONDENT, A CORPORATION ORGANIZED UNDER THE LAWS OF SWITZERLAND
AND HAVING ITS PRINCIPAL PLACE OF BUSINESS IN THAT COUNTRY, SUED UNDER
SEC. 9(A) OF THE TRADING WITH THE ENEMY ACT TO RECLAIM PROPERTY WHICH
THE ALIEN PROPERTY CUSTODIAN HAD VESTED IN HIMSELF UNDER SEC. 5(B), AS
AMENDED BY THE FIRST WAR POWERS ACT OF 1941.  THE PROPERTY SEIZED
CONSISTED OF SHARES OF STOCK IN CORPORATIONS ORGANIZED UNDER THE LAWS
OF VARIOUS STATES OF THIS NATION AND OF AN INTEREST IN A CONTRACT
BETWEEN TWO SUCH CORPORATIONS AND, ACCORDING TO THE ALLEGATIONS OF THE
COMPLAINT WHICH ARE ASSUMED TO BE TRUE, WAS FREE OF ALL ENEMY TAINT -
I.E., THE CORPORATIONS WHOSE SHARES HAD BEEN SEIZED, THE CORPORATIONS
WHICH HAD A CONTRACT IN WHICH RESPONDENT HAD AN INTEREST, AND
RESPONDENT ITSELF, WERE CORPORATIONS IN WHICH NO ENEMY, ALLY OF AN
ENEMY, OR ANY NATIONAL OF EITHER, HAD ANY INTEREST OF ANY KIND
WHATSOEVER, AND RESPONDENT HAD NOT DONE BUSINESS IN THE TERRITORY OF
THE ENEMY OR ANY ALLY OF AN ENEMY.  HELD:  RESPONDENT IS ENTITLED TO
MAINTAIN THE SUIT.  PP. 482-490. 

2.  BY THE AMENDMENT TO SEC. 5(B) OF THE TRADING WITH THE ENEMY ACT
CONTAINED IN THE FIRST WAR POWERS ACT OF 1941, THE PROPERTY OF ALL
FOREIGN INTERESTS WAS PLACED WITHIN REACH OF THE VESTING POWER, NOT TO
APPROPRIATE FRIENDLY OR NEUTRAL ASSETS BUT TO REACH ENEMY INTERESTS
WHICH MASQUERADE UNDER THOSE INNOCENT FRONTS.  PP. 484-486. 

3.  ALTHOUGH SECS. 2 AND 9(A) WERE NOT AMENDED IN 1941, THEY MUST BE
READ HARMONIOUSLY WITH SEC. 5(B) AS AMENDED IN 1941, SO AS NOT TO
DEFEAT THE PURPOSE OF THE 1941 AMENDMENT.  PP. 486-489. 

4.  SECTION 2, DEFINING THE TERMS "ENEMY" AND "ALLY OF ENEMY," MUST
BE READ DIFFERENTLY THAN IT WAS PREVIOUSLY, SO AS TO GIVE THE CONCEPT
OF ENEMY OR ALLY OF ENEMY A SCOPE WHICH HELPS THE 1941 AMENDMENT
FULFILL ITS MISSION WITHOUT NULLIFYING SEC. 9(A).  P. 489. 

5.  WHEN SECS. 2, 5(B) AND 9(A) ARE THUS READ TOGETHER HARMONIOUSLY,
SEC. 9(A) CANNOT BE CONSTRUED AS AFFORDING NO REMEDY FOR THE RECOVERY
OF PROPERTY BY FOREIGN INTERESTS WHICH HAVE NO POSSIBLE CONNECTION WITH
THE ENEMY, MERELY BECAUSE SUCH PROPERTY WAS MADE SUBJECT TO SEIZURE
UNDER SEC. 5(A), AS AMENDED.  PP. 486-489. 

CLARK, ATTORNEY GENERAL, AS SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN,
V. UEBERSEE FINANZ-KORPORATION, A.G. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

THE DISTRICT COURT DISMISSED A SUIT BROUGHT BY RESPONDENT UNDER SEC.
9(A) OF THE TRADING WITH THE ENEMY ACT TO RECOVER PROPERTY VESTED BY
THE ALIEN PROPERTY CUSTODIAN IN HIMSELF UNDER SEC. 5(B), AS AMENDED BY
THE FIRST WAR POWERS ACT OF 1941.  THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA REVERSED.  81 U.S. APP. D.C. 284, 158 F.2D
313.  THIS COURT GRANTED CERTIORARI.  330 U.S. 813.  AFFIRMED, P. 490. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BROUGHT THIS SUIT TO RECLAIM PROPERTY WHICH THE ALIEN
PROPERTY CUSTODIAN,  FN1 ACTING UNDER SEC. 5(B) OF THE TRADING WITH THE
ENEMY ACT, 40 STAT. 411, 50 U.S.C. APP. SEC. 1, AS AMENDED BY THE FIRST
WAR POWERS ACT OF 1941, 55 STAT. 839, 50 U.S.C. APP. (SUPP. V, 1946),
SEC. 5(B), HAD VESTED IN HIMSELF.  RESPONDENT IS A CORPORATION
ORGANIZED UNDER THE LAWS OF SWITZERLAND AND HAVING ITS PRINCIPAL PLACE
OF BUSINESS IN THAT COUNTRY.  THE PROPERTY SEIZED CONSISTED OF SHARES
OF STOCK IN CORPORATIONS ORGANIZED UNDER THE LAWS OF VARIOUS STATES OF
THIS NATION AND OF AN INTEREST IN A CONTRACT BETWEEN TWO SUCH
CORPORATIONS. 

THE COMPLAINT ALLEGES THAT RESPONDENT IS NOT AN ENEMY OR ALLY OF AN
ENEMY AND THAT AT NO TIME AT OR SINCE THE VESTING HAS THE PROPERTY IN
QUESTION BEEN OWNED OR CONTROLLED, DIRECTLY OR INDIRECTLY, IN WHOLE OR
IN PART, BY AN ENEMY, ALLY OF AN ENEMY, OR A NATIONAL OF A DESIGNATED
ENEMY COUNTRY.  IT ALSO ALLEGES THAT NONE OF THE PROPERTY HAS BEEN
OWING OR BELONGING TO OR HELD ON ACCOUNT OF OR FOR THE BENEFIT OF ANY
SUCH PERSON OR INTEREST.  WE CONSTRUE THESE ALLEGATIONS TO MEAN THAT
THE PROPERTY IS FREE OF ALL ENEMY TAINT AND PARTICULARLY THAT THE
CORPORATIONS WHOSE SHARES HAVE BEEN SEIZED, THE CORPORATIONS WHICH HAVE
A CONTRACT IN WHICH RESPONDENT HAS AN INTEREST, AND RESPONDENT ITSELF,
ARE COMPANIES IN WHICH NO ENEMY, ALLY OF AN ENEMY, NOR ANY NATIONAL OF
EITHER HAS ANY INTEREST OF ANY KIND WHATSOEVER, AND THAT RESPONDENT HAS
NOT DONE BUSINESS IN THE TERRITORY OF THE ENEMY OR ANY ALLY OF AN
ENEMY.  THOSE ALLEGATIONS, AS SO CONSTRUED, ARE INDEED TAKEN AS TRUE
FOR THE PURPOSES OF THE PRESENT RULING, SINCE PETITIONER'S MOTION TO
DISMISS IS BASED SOLELY ON THE FACT THAT RESPONDENT IS A NATIONAL OF A
FOREIGN COUNTRY. 

THE DISTRICT COURT GRANTED PETITIONER'S MOTION TO DISMISS.  THE COURT
OF APPEALS REVERSED, ONE JUSTICE DISSENTING.  81 U.S. APP. D.C. 284,
158 F.2D 313.  THE CASE IS HERE ON PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTION IN THE
ADMINISTRATION OF THE ACT.  330 U.S. 813. 

UNDER THE ACT AS IT READ PRIOR TO THE 1941 AMENDMENT RESPONDENT WOULD
HAVE BEEN ABLE TO MAINTAIN THIS SUIT ON A SHOWING, WITHOUT MORE, THAT
IT WAS A CORPORATION ORGANIZED UNDER THE LAWS OF A FRIENDLY NATION AND
NOT DOING BUSINESS IN THE TERRITORY OF AN ENEMY NATION OR ANY OF ITS
ALLIES.  THAT RESULT WOULD BE REACHED AS FOLLOWS:  SEC. 7(C) PERMITTED
SEIZURE BY THE CUSTODIAN ONLY OF PROPERTY IN WHICH AN ENEMY OR ALLY OF
AN ENEMY HAD AN INTEREST.  SEC. 9(A) PERMITTED "ANY PERSON NOT AN ENEMY
OR ALLY OF ENEMY" CLAIMING AN INTEREST IN ANY SEIZED PROPERTY TO SUE TO
RECLAIM IT. AND THE COURT HELD IN BEHN, MEYER & CO. V. MILLER, 266 U.S.
457, THAT A CORPORATION ORGANIZED UNDER THE LAWS OF A FRIENDLY NATION
AND NOT DOING BUSINESS IN THE TERRITORY OF AN ENEMY NATION OR ANY OF
ITS ALLIES  FN2  COULD MAINTAIN SUCH A SUIT EVEN THOUGH THE CORPORATION
WAS ENEMY OWNED OR CONTROLLED.  THE SCHEME OF THE ACT AS IT WAS THEN
DRAWN WAS "TO SEIZE THE SHARES OF STOCK WHEN ENEMY OWNED RATHER THAN TO
TAKE OVER THE CORPORATE PROPERTY."  HAMBURG-AMERICAN CO. V. UNITED
STATES, 277 U.S. 138, 140. 

THAT WAS AT LEAST ONE RESPECT IN WHICH THE ACT HAD A "RIGIDITY AND
INFLEXIBILITY" THAT WAS SOUGHT TO BE CURED BY THE AMENDMENT TO SEC.
5(B) IN 1941.  SEE H.R. REP. NO. 1507, 77TH CONG., 1ST SESS., P. 3.  IT
WAS NOTORIOUS THAT GERMANY AND HER ALLIES HAD DEVELOPED NUMEROUS
TECHNIQUES FOR CONCEALING ENEMY OWNERSHIP OR CONTROL OF PROPERTY WHICH
WAS OSTENSIBLY FRIENDLY OR NEUTRAL.  THEY HAD THROUGH NUMEROUS DEVICES,
INCLUDING THE CORPORATION, ACQUIRED INDIRECT CONTROL OR OWNERSHIP IN
INDUSTRIES IN THIS COUNTRY FOR THE PURPOSES OF ECONOMIC WARFARE.  FN3
SEC. 5(B) WAS AMENDED ON THE HEELS OF THE DECLARATION OF WAR TO COPE
WITH THAT PROBLEM.  CONGRESS BY THAT AMENDMENT GRANTED THE PRESIDENT
THE POWER TO VEST IN AN AGENCY DESIGNATED BY HIM "ANY PROPERTY OR
INTEREST OF ANY FOREIGN COUNTRY OR NATIONAL THEREOF."  FN4  THE
PROPERTY OF ALL FOREIGN INTERESTS WAS PLACED WITHIN REACH OF THE
VESTING POWER, NOT TO APPROPRIATE FRIENDLY OR NEUTRAL ASSETS BUT TO
REACH ENEMY INTERESTS WHICH MASQUERADED UNDER THOSE INNOCENT FRONTS. 

THUS THE PRESIDENT ACQUIRED NEW "FLEXIBLE POWERS" (H.R. REP. NO.
1507, SUPRA, P. 3) TO DEAL EFFECTIVELY WITH PROPERTY INTERESTS WHICH
HAD EITHER AN OPEN OR CONCEALED ENEMY TAINT. 

WHILE THE SCOPE OF THE PRESIDENT'S POWER WAS BROADENED, THERE WAS NO
AMENDMENT RESTRICTING THE SCOPE OF SEC. 9(A).  AS WE HAVE NOTED, SEC.
9(A) GRANTED "ANY PERSON NOT AN ENEMY OR ALLY OF ENEMY," CLAIMING AN
INTEREST IN PROPERTY SEIZED, THE RIGHT TO RECLAIM IT.  SO THE PROVISION
READS TODAY.  YET, AS PETITIONER SUGGESTS, IF BEHN, MEYER & CO. V.
MILLER, SUPRA, IS APPLIED DESPITE THE 1941 AMENDMENT, SEC. 9(A) WILL
UNDO MUCH OF THE GOOD WHICH THE 1941 AMENDMENT TO SEC. 5(B) WAS
DESIGNED TO ACCOMPLISH.  ALL A CORPORATE CLAIMANT WOULD NEED DO TO
RECOVER THE PROPERTY SEIZED WOULD BE TO SHOW THAT IT WAS ORGANIZED IN
THIS COUNTRY OR IN SOME FRIENDLY OR NEUTRAL COUNTRY AND WAS NOT DOING
BUSINESS WITHIN THE TERRITORY OF AN ENEMY OR ANY OF ITS ALLIES.  FN5
THE FACT THAT IT WAS OWNED OR CONTROLLED BY ENEMY INTERESTS AND MIGHT
SAP THE STRENGTH OF THIS NATION THROUGH ECONOMIC WARFARE WOULD BE
IMMATERIAL.  WE AGREE THAT A CONSTRUCTION SO DESTRUCTIVE OF THE
OBJECTIVES OF THE 1941 AMENDMENT TO SEC. 5(B) MUST BE REJECTED. 

PETITIONER THEREFORE SUGGESTS THAT ONCE THE SEIZURE IS SHOWN TO BE
PERMISSIBLE UNDER SEC. 5(B), THERE IS NO REMEDY FOR THE RETURN OF THE
PROPERTY UNDER SEC. 9(A).  IT IS SAID THAT SEC. 9(A) WAS DESIGNED TO
PROVIDE AN ULTIMATE JUDICIAL DETERMINATION OF THE QUESTION WHETHER THE
PROPERTY SEIZED WAS WITHIN THE VESTING POWER DEFINED IN SEC. 5(B). 
CENTRAL TRUST CO. V. GARVAN, 254 U.S. 554, 567-568.  THE ARGUMENT
ACCORDINGLY IS THAT SINCE SEC. 5(B) ALLOWS SEIZURE AND VESTING OF "ANY
PROPERTY OR INTEREST OF ANY FOREIGN COUNTRY OR NATIONAL THEREOF," A
SUIT TO RECLAIM IT IS DEFEATED BY A MERE SHOWING THAT THE CLAIMANT IS A
CORPORATION ORGANIZED UNDER THE LAWS OF ANOTHER NATION. 

THAT IS TO MAKE THE RIGHT TO SUE RUN NOT TO "ANY PERSON NOT AN ENEMY
OR ALLY OF ENEMY" AS SEC. 9(A) IN TERMS PROVIDES BUT TO "ANY PERSON NOT
AN ENEMY OR ALLY OF ENEMY OR NATIONAL OF ANY FOREIGN COUNTRY."  THAT
WOULD WIPE OUT ALL SUITS TO RECLAIM PROPERTY BROUGHT BY ANY FOREIGN
INTEREST, NO MATTER HOW FRIENDLY.  WE STATED IN MARKHAM V. CABELL, 326
U.S. 404, 410-411, "THE RIGHT TO SUE, EXPLICITLY GRANTED BY SEC. 9(A),
SHOULD NOT BE READ OUT OF THE LAW UNLESS IT IS CLEAR THAT CONGRESS BY
WHAT IT LATER DID WITHDREW ITS EARLIER PERMISSION."  SUCH A DRASTIC
CONTRACTION, IF NOT COMPLETE STERILIZATION, OF SEC. 9(A) AS PETITIONER
SUGGESTS SHOULD THEREFORE BE MADE ONLY IF NO OTHER ALTERNATIVE IS
OPEN. 

THERE ARE SEVERAL REASONS WHICH MAKE US HESITATE TO TAKE THAT
COURSE.  IN THE FIRST PLACE, AS WE HAVE SUGGESTED, THE PHASE OF THE
PROBLEM WITH WHICH WE ARE PRESENTLY CONCERNED AND WITH WHICH CONGRESS
WAS WRESTLING WHEN IT AMENDED THE ACT IN 1941 STARTED AND ENDED WITH
PROPERTY HAVING AN ENEMY TAINT.  WE FIND NOT THE SLIGHTEST SUGGESTION
THAT CONGRESS WAS CONCERNED UNDER THIS ACT WITH PROPERTY OWNED OR
CONTROLLED BY FRIENDLY OR NEUTRAL POWERS AND IN NO WAY UTILIZED BY THE
AXIS.  THOSE INTERESTS WERE NOT WAGING ECONOMIC WARFARE AGAINST US.
SECONDLY, WE ARE DEALING HERE WITH THE POWER "TO AFFIRMATIVELY COMPEL
THE USE AND APPLICATION OF FOREIGN PROPERTY IN A MANNER CONSISTENT WITH
THE INTERESTS OF THE UNITED STATES."  FN6  SEN. REP. NO. 911, 77TH
CONG., 1ST SESS., P. 2.  IT IS HARD FOR US TO ASSUME THAT CONGRESS
ADOPTED THAT DRASTIC COURSE IN THE CASE OF FRIENDLY OR NEUTRAL FOREIGN
INTERESTS WHOSE INVESTMENTS IN OUR ECONOMY WERE IN NO WAY INFECTED WITH
ENEMY OWNERSHIP OR CONTROL.  OUR HESITATION IS, MOREOVER, INCREASED
WHEN WE NOTE THAT SEC. 7(C) MAKES THE REMEDY UNDER THE ACT THE ONLY ONE
CONGRESS HAS GRANTED A CLAIMANT.  IT IS NOT EASY FOR US TO ASSUME THAT
CONGRESS TREATED ALL NON-ENEMY NATIONS, INCLUDING OUR RECENT ALLIES, IN
SUCH A HARSH MANNER, LEAVING THEM ONLY WITH SUCH REMEDY AS THEY MIGHT
HAVE UNDER THE FIFTH AMENDMENT. 

THE PROBLEM IS NOT WITHOUT ITS DIFFICULTIES WHICHEVER WAY WE TURN. 
BUT WE THINK THAT WE ADHERE MORE CLOSELY TO THE POLICY OF BOTH SEC.
5(B) AS AMENDED AND SEC. 9(A), IF WE DO NOT CARRY OVER INTO THE AMENDED
ACT THE CONSEQUENCES OF BEHN, MEYER & CO. V. MILLER, SUPRA. 

AS WE HAVE OBSERVED, THE SCHEME OF THE ACT WHEN BEHN, MEYER & CO. V.
MILLER WAS DECIDED WAS TO RESPECT THE CORPORATE FORM, EVEN THOUGH THE
ENEMY HELD ALL THE STOCK OF THE CORPORATE CLAIMANT.  HAMBURG-AMERICAN
CO. V. UNITED STATES, SUPRA.  THE 1941 AMENDMENT TO SEC. 5(B) REFLECTED
A COMPLETE REVERSAL IN THAT POLICY.  THE POWER OF SEIZURE AND VESTING
WAS EXTENDED TO ALL PROPERTY OF ANY FOREIGN COUNTRY OR NATIONAL SO THAT
NO INNOCENT APPEARING DEVICE COULD BECOME A TROJAN HORSE.  CONGRESS DID
NOT, HOWEVER, ALTER THE DEFINITIONS OF ENEMY OR OF ALLY OF ENEMY
CONTAINED IN SEC. 2.  THEY REMAIN THE SAME AS THEY WERE AT THE TIME
BEHN, MEYER & CO. V. MILLER WAS DECIDED.  FN7 

YET IF THE QUESTION WERE PRESENTED FOR THE FIRST TIME UNDER THE
AMENDED ACT, WE COULD NOT CONFINE THE STATUTORY DEFINITIONS OF ENEMY OR
ALLY OF ENEMY TO THE NARROW CATEGORIES INDICATED BY BEHN, MEYER & CO.
V. MILLER.  TO DO SO WOULD BE TO RUN COUNTER TO THE POLICY OF THE ACT
AND BE DISRUPTIVE OF ITS PURPOSE.  WE ARE DEALING WITH HASTY
LEGISLATION WHICH CONGRESS DID NOT STOP TO PERFECT AS AN INTEGRATED
WHOLE.  OUR TASK IS TO GIVE ALL OF IT - 1917 TO 1941 - THE MOST
HARMONIOUS, COMPREHENSIVE MEANING POSSIBLE.  MARKHAM V. CABELL, SUPRA.
SO IF THE DEFINITIONS CONTAINED IN SEC. 2  FN8  ARE TO BE HARMONIZED
WITH THE POLICY UNDERLYING SEC. 5(B) AND SEC. 9(A) OF THE AMENDED ACT,
WE WOULD HAVE TO SAY THAT THEY ARE MERELY ILLUSTRATIVE, NOT
EXCLUSIONARY.  TO DO OTHERWISE WOULD BE TO IMPUTE TO CONGRESS A PURPOSE
TO PARALYZE WITH ONE HAND WHAT IT SOUGHT TO PROMOTE WITH THE OTHER. 

THERE IS PERHAPS IN LOGIC SOME BASIS FOR SAYING THAT THAT SHOULD BE
THE CONSEQUENCE SINCE CONGRESS DID NOT AMEND SEC. 2 WHEN IT REVISED THE
ACT BY ITS AMENDMENT OF SEC. 5(B).  THE ARGUMENT IS THAT THE ONLY
CHANGE EFFECTED WAS IN SEC. 5(B) AND THAT SEC. 2 WHICH STANDS UNAMENDED
SHOULD BE TAKEN TO MEAN WHAT IT MEANT BEFORE 1941.  BUT THE ANSWER TO
OUR PROBLEM CANNOT BE HAD BY THE USE OF LOGIC ALONE.  WE ARE DEALING
HERE WITH CONFLICT AND CONFUSION IN THE STATUTE.  THOUGH NEITHER SEC. 2
NOR SEC. 9(A) WAS AMENDED WITH SEC. 5(B) IN 1941, ONE OF THEM MUST BE
READ DIFFERENTLY AFTER THAN BEFORE THAT EVENT.  WE BELIEVE IT IS MORE
CONSONANT WITH THE FUNCTIONS SOUGHT TO BE SERVED BY THE ACT TO APPLY
SEC. 2 DIFFERENTLY THAN IT WAS PREVIOUSLY APPLIED THAN TO READ SEC.
9(A) MORE RESTRICTIVELY.  WE BELIEVE A MORE HARMONIOUS READING OF SEC.
2, SEC. 5(B) AND SEC. 9(A) IS HAD IF THE CONCEPT OF ENEMY OR ALLY OF
ENEMY IS GIVEN A SCOPE WHICH HELPS THE AMENDMENT OF 1941 FULFILL ITS
MISSION AND WHICH DOES NOT MAKE SEC. 9(A) FOR THE FIRST TIME IN ITS
HISTORY AND CONTRARY TO THE NORMAL CONNOTATION OF ITS TERMS STAND AS A
BARRIER TO THE RECOVERY OF PROPERTY BY FOREIGN INTERESTS WHICH HAVE NO
POSSIBLE CONNECTION WITH THE ENEMY. 

IT IS SUGGESTED, HOWEVER, THAT THIS APPROACH MAY PRODUCE RESULTS
WHICH ARE BOTH ABSURD AND UNCERTAIN.  IT IS SAID THAT THE ENTIRE
PROPERTY OF A CORPORATION WOULD BE JEOPARDIZED MERELY BECAUSE A
NEGLIGIBLE STOCK INTEREST, PERHAPS A SINGLE SHARE, WAS DIRECTLY OR
INDIRECTLY OWNED OR CONTROLLED BY AN ENEMY OR ALLY OF AN ENEMY.  IT IS
ALSO POINTED OUT THAT SECURITIES OR INTERESTS OTHER THAN STOCK MIGHT BE
HELD BY AN ENEMY OR ALLY OF AN ENEMY AND USED EFFECTIVELY IN ECONOMIC
WARFARE AGAINST THIS COUNTRY.  BUT WHAT THESE INTERESTS ARE, THE EXTENT
OF HOLDINGS NECESSARY TO CONSTITUTE AN ENEMY TAINT, WHAT PART OF A
FRIENDLY ALIEN CORPORATION'S PROPERTY MAY BE RETAINED WHERE ONLY A
FRACTIONAL ENEMY OWNERSHIP APPEARS, ARE LEFT UNDECIDED.  SINCE WE
ASSUME FROM THE ALLEGATIONS OF THE COMPLAINT THAT RESPONDENT IS FREE OF
ENEMY TAINT AND THEREFORE IS NOT WITHIN THE DEFINITION OF ENEMY OR ALLY
OF AN ENEMY, THOSE PROBLEMS ARE NOT NOW BEFORE US.  WE RECOGNIZE THEIR
IMPORTANCE; BUT THEY MUST AWAIT LEGISLATIVE  FN9  OR JUDICIAL
CLARIFICATION.  AFFIRMED. 

FN1  THE POWERS AND FUNCTIONS OF THE CUSTODIAN WERE SUBSEQUENTLY
TRANSFERRED TO THE ATTORNEY GENERAL.  EXECUTIVE ORDER NO. 9788, 11 FED.
REG. 11981(OCT.  14, 1946).    FN2  SEC. 2 PROVIDES: 

"THAT THE WORD 'ENEMY,' AS USED HEREIN, SHALL BE DEEMED TO MEAN, FOR
THE PURPOSES OF SUCH TRADING AND OF THIS ACT - 

"(A)  ANY INDIVIDUAL, PARTNERSHIP, OR OTHER BODY OF INDIVIDUALS, OF
ANY NATIONALITY, RESIDENT WITHIN THE TERRITORY (INCLUDING THAT OCCUPIED
BY THE MILITARY AND NAVAL FORCES) OF ANY NATION WITH WHICH THE UNITED
STATES IS AT WAR, OR RESIDENT OUTSIDE THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY, AND ANY CORPORATION INCORPORATED WITHIN
SUCH TERRITORY OF ANY NATION WITH WHICH THE UNITED STATES IS AT WAR OR
INCORPORATED WITHIN ANY COUNTRY OTHER THAN THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY. 

"(B)  THE GOVERNMENT OF ANY NATION WITH WHICH THE UNITED STATES IS AT
WAR, OR ANY POLITICAL OR MUNICIPAL SUBDIVISION THEREOF, OR ANY OFFICER,
OFFICIAL, AGENT, OR AGENCY THEREOF. 

"(C)  SUCH OTHER INDIVIDUALS, OR BODY OR CLASS OF INDIVIDUALS, AS MAY
BE NATIVES, CITIZENS, OR SUBJECTS OF ANY NATION WITH WHICH THE UNITED
STATES IS AT WAR, OTHER THAN CITIZENS OF THE UNITED STATES, WHEREVER
RESIDENT OR WHEREVER DOING BUSINESS, AS THE PRESIDENT, IF HE SHALL FIND
THE SAFETY OF THE UNITED STATES OR THE SUCCESSFUL PROSECUTION OF THE
WAR SHALL SO REQUIRE, MAY, BY PROCLAMATION, INCLUDE WITHIN THE TERM
'ENEMY.' 

"THE WORDS 'ALLY OF ENEMY,' AS USED HEREIN, SHALL BE DEEMED TO MEAN
 

"(A)  ANY INDIVIDUAL, PARTNERSHIP, OR OTHER BODY OF INDIVIDUALS, OF
ANY NATIONALITY, RESIDENT WITHIN THE TERRITORY (INCLUDING THAT OCCUPIED
BY THE MILITARY AND NAVAL FORCES) OF ANY NATION WHICH IS AN ALLY OF A
NATION WITH WHICH THE UNITED STATES IS AT WAR, OR RESIDENT OUTSIDE THE
UNITED STATES AND DOING BUSINESS WITHIN SUCH TERRITORY, AND ANY
CORPORATION INCORPORATED WITHIN SUCH TERRITORY OF SUCH ALLY NATION, OR
INCORPORATED WITHIN ANY COUNTRY OTHER THAN THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY. 

"(B) THE GOVERNMENT OF ANY NATION WHICH IS AN ALLY OF A NATION WITH
WHICH THE UNITED STATES IS AT WAR, OR ANY POLITICAL OR MUNICIPAL
SUBDIVISION OF SUCH ALLY NATION, OR ANY OFFICER, OFFICIAL, AGENT, OR
AGENCY THEREOF. 

"(C)  SUCH OTHER INDIVIDUALS, OR BODY OR CLASS OF INDIVIDUALS, AS MAY
BE NATIVES, CITIZENS, OR SUBJECTS OF ANY NATION WHICH IS AN ALLY OF A
NATION WITH WHICH THE UNITED STATES IS AT WAR, OTHER THAN CITIZENS OF
THE UNITED STATES, WHEREVER RESIDENT OR WHEREVER DOING BUSINESS, AS THE
PRESIDENT, IF HE SHALL FIND THE SAFETY OF THE UNITED STATES OR THE
SUCCESSFUL PROSECUTION OF THE WAR SHALL SO REQUIRE, MAY, BY
PROCLAMATION, INCLUDE WITHIN THE TERM 'ALLY OF ENEMY.'" 

FN3  SOME OF THE USES OF THE CORPORATION IN PROMOTION OF THESE
SUBVERSIVE PROJECTS ARE SUMMARIZED IN ADMINISTRATION OF THE WARTIME
FINANCIAL AND PROPERTY CONTROLS OF THE UNITED STATES GOVERNMENT,
TREASURY DEPT. (1942), PP. 29-30.  IT IS POINTED OUT THAT TECHNICAL
LEGAL TITLE "TO SOME OF THE MOST DANGEROUS OF THE AXIS-INFLUENCED
ENTERPRISES MAY BE SWISS, DUTCH, SWEDISH OR AMERICAN."  IT IS ALSO SAID
THAT "ACTUAL OWNERSHIP OF BUSINESS ENTERPRISES FREQUENTLY RUNS THROUGH
TANGLED MAZES OF HOLDING COMPANIES.  THESE HOLDING COMPANIES WERE
NORMALLY INCORPORATED IN NEUTRAL COUNTRIES AND THE OWNERSHIP OF THE
HOLDING COMPANIES THEMSELVES WAS NORMALLY REPRESENTED BY BEARER SHARES,
MAKING IT EXTREMELY DIFFICULT TO NEGATE A CLAIM THAT THE OWNERSHIP OF
THE CORPORATION WAS COINCIDENT WITH THE STATE OF INCORPORATION." 

FN4  SEC. 5(B)(1), AS AMENDED, ALSO GRANTED THE PRESIDENT THE POWER
TO "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, BY ANY PERSON, OR WITH RESPECT TO
ANY PROPERTY, SUBJECT TO THE JURISDICTION OF THE UNITED STATES  ...  " 

SEC. 5(B)(1), AS AMENDED, FURTHER PROVIDED AS RESPECTS PROPERTY WHICH
HAD BEEN VESTED THAT "UPON SUCH TERMS AND CONDITIONS AS THE PRESIDENT
MAY PRESCRIBE SUCH INTEREST OR PROPERTY SHALL BE HELD, USED,
ADMINISTERED, LIQUIDATED, SOLD, OR OTHERWISE DEALT WITH IN THE INTEREST
OF AND FOR THE BENEFIT OF THE UNITED STATES  ...  " 

FN5  SEE NOTE 2, SUPRA. 

FN6  AS TO THE POWERS OF THE CUSTODIAN OR OTHER AGENCY DESIGNATED BY
THE PRESIDENT OVER THE PROPERTY, SEE SEC. 5(B)(1), SUPRA NOTE 4, AND
SEC. 12. 

FN7  SEE NOTE 2, SUPRA. 

FN8  SEE NOTE 2, SUPRA. 

FN9  SEE 60 STAT. 50, ADDING SEC. 32(A)(2)(E) TO THE ACT. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :








WILLIAMS V. FANNING, 332 U.S. 490 


NO. 47.  ARGUED OCTOBER 22, 1947.  - DECIDED DECEMBER 8, 1947.  - 158
F.2D 95, REVERSED. 


1.  THOSE AGAINST WHOM THE POSTMASTER GENERAL HAS ISSUED A POSTAL
FRAUD ORDER MAY SUE THE LOCAL POSTMASTER TO ENJOIN HIM FROM CARRYING
OUT THE ORDER; AND THE POSTMASTER GENERAL IS NOT AN INDISPENSABLE
PARTY.  PP. 492-494. 

2.  THE SUPERIOR OFFICER IS AN INDISPENSABLE PARTY IF A DECREE
GRANTING THE RELIEF SOUGHT WILL REQUIRE HIM TO TAKE ACTION, EITHER BY
EXERCISING DIRECTLY A POWER LODGED IN HIM OR BY HAVING A SUBORDINATE
EXERCISE IT FOR HIM.  PP. 492-493. 

3.  THE SUPERIOR OFFICER IS NOT AN INDISPENSABLE PARTY IF THE DECREE
WHICH IS ENTERED WOULD EFFECTIVELY GRANT THE RELIEF DESIRED BY
EXPENDING ITSELF ON THE SUBORDINATE OFFICIAL WHO IS BEFORE THE COURT. 
PP. 493-494. 

WILLIAMS ET AL. V. FANNING, POSTMASTER OF LOS ANGELES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

THE DISTRICT COURT DISMISSED A SUIT TO ENJOIN A POSTMASTER FROM
CARRYING OUT A FRAUD ORDER ISSUED BY THE POSTMASTER GENERAL.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  158 F.2D 95.  THIS COURT GRANTED
CERTIORARI.  331 U.S. 797.  REVERSED, P. 494. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, HERE ON CERTIORARI TO RESOLVE A CONFLICT BETWEEN THE
CIRCUITS,  FN1  PRESENTS THE QUESTION WHETHER THOSE AGAINST WHOM THE
POSTMASTER GENERAL HAS ISSUED A POSTAL FRAUD ORDER MAY SUE THE LOCAL
POSTMASTER TO ENJOIN HIM FROM CARRYING OUT THE ORDER OR WHETHER THE
POSTMASTER GENERAL IS AN INDISPENSABLE PARTY. 

THE POSTMASTER GENERAL, AFTER A HEARING IN WASHINGTON, D.C., FOUND
THAT PETITIONERS' WEIGHT-REDUCING ENTERPRISE WAS FRAUDULENT.  HE
ACCORDINGLY ISSUED A FRAUD ORDER (R.S. SECS. 3929, 4041, 39 U.S.C.
SECS. 259, 732) DIRECTING RESPONDENT, POSTMASTER AT LOS ANGELES,
CALIFORNIA (WHERE PETITIONERS DO BUSINESS) TO REFUSE PAYMENT OF ANY
MONEY ORDER DRAWN TO THE ORDER OF PETITIONERS, TO ADVISE THE REMITTER
OF SUCH MONEY ORDER THAT PAYMENT HAD BEEN FORBIDDEN, AND TO STAMP
"FRAUDULENT" ON ALL MAIL MATTER DIRECTED TO PETITIONERS AND TO RETURN
IT TO THE SENDERS. 

PETITIONERS THEREUPON BROUGHT THIS SUIT IN THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA TO ENJOIN RESPONDENT FROM CARRYING OUT
THE ORDER,  FN2  CLAIMING THAT THEY HAD BEEN DEPRIVED OF THE HEARING TO
WHICH THEY WERE ENTITLED AND THAT THE FRAUD ORDER WAS WITHOUT THE
SUPPORT OF SUBSTANTIAL EVIDENCE.  ON MOTION OF RESPONDENT THE DISTRICT
COURT DISMISSED THE COMPLAINT, HOLDING IN ACCORD WITH THE VIEW OF THE
NINTH CIRCUIT COURT OF APPEALS  FN3  THAT THE POSTMASTER GENERAL WAS AN
INDISPENSABLE PARTY.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  158 F.2D
95. 

IT WAS LONG ASSUMED THAT THE POSTMASTER GENERAL WAS NOT AN
INDISPENSABLE PARTY IN THESE FRAUD ORDER CASES.  BEGINNING AT LEAST
WITH AMERICAN SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94,
DECIDED IN 1902, THE MAINTENANCE OF THE SUIT AGAINST THE LOCAL
POSTMASTER ALONE WAS NOT CHALLENGED.  FN4 

MEANWHILE, ANOTHER LINE OF CASES WAS EMERGING.  WARNER VALLEY STOCK
CO. V. SMITH, 165 U.S. 28, HELD THAT A SUIT AGAINST THE SECRETARY OF
THE INTERIOR TO COMPEL HIM TO ISSUE PATENTS TO PUBLIC LANDS ABATED ON
HIS RESIGNATION.  AS THE PURPOSE OF THE BILL WAS "TO CONTROL THE ACTION
OF THE SECRETARY OF THE INTERIOR" (165 U.S. P. 34), HE WAS HELD TO BE
AN INDISPENSABLE PARTY.  NEXT CAME GNERICH V. RUTTER, 265 U.S. 388,
WHICH WAS A SUIT TO ENJOIN A REPRESENTATIVE OF THE COMMISSIONER OF
INTERNAL REVENUE FROM ENFORCING A RESTRICTION EMBODIED IN A PERMIT
ISSUED UNDER THE NATIONAL PROHIBITION ACT.  THE SUBORDINATE OFFICIAL,
ACTING FOR THE COMMISSIONER, HAD REFUSED TO GIVE PLAINTIFFS THE MORE
LIBERAL PERMIT WHICH THEY DESIRED; AND HE HAD NO POWER TO GRANT THE
DESIRED PERMIT WITHOUT REVISION OF HIS DELEGATED AUTHORITY.  THE
COMMISSIONER WAS HELD TO BE AN INDISPENSABLE PARTY.  WEBSTER V. FALL,
266 U.S. 507, FOLLOWED.  THAT WAS A SUIT BROUGHT BY AN OSAGE INDIAN TO
REQUIRE PAYMENT TO HIM OF FUNDS UNDER AN ACT OF CONGRESS.  THE POWER
AND RESPONSIBILITY OF MAKING THE PAYMENTS BEING IN THE SECRETARY OF THE
INTERIOR, HE WAS HELD TO BE AN INDISPENSABLE PARTY. 

THESE CASES EVOLVED THE PRINCIPLE THAT THE SUPERIOR OFFICER IS AN
INDISPENSABLE PARTY IF THE DECREE GRANTING THE RELIEF SOUGHT WILL
REQUIRE HIM TO TAKE ACTION, EITHER BY EXERCISING DIRECTLY A POWER
LODGED IN HIM OR BY HAVING A SUBORDINATE EXERCISE IT FOR HIM. 

THAT PRINCIPLE WAS BROUGHT INTO CLEARER RELIEF BY COLORADO V. TOLL,
268 U.S. 228.  THERE THE DIRECTOR OF NATIONAL PARKS HAD ISSUED
REGULATIONS FORBIDDING OPERATION IN THE ROCKY MOUNTAIN NATIONAL PARK OF
AUTOMOBILES FOR HIRE.  TOLL WAS THE SUPERINTENDENT OF THE PARK WHO WAS
ENFORCING THE REGULATION.  A SUIT TO ENJOIN HIM WAS ALLOWED TO BE
MAINTAINED WITHOUT JOINING HIS SUPERIOR, THE DIRECTOR, WHO HAD
PROMULGATED THE REGULATION.  THAT RESULT FOLLOWED, 268 U.S. P. 230, BY
ANALOGY TO THOSE CASES WHICH PERMIT SUIT AGAINST A PUBLIC OFFICIAL WHO
INVADES A PRIVATE RIGHT EITHER BY EXCEEDING HIS AUTHORITY OR BY
CARRYING OUT A MANDATE OF HIS SUPERIOR.  UNITED STATES V. LEE, 106 U.S.
196; PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 619, 620.  IN THOSE
SITUATIONS RELIEF AGAINST THE OFFENDING OFFICER COULD BE GRANTED
WITHOUT RISK THAT THE JUDGMENT AWARDED WOULD "EXPEND ITSELF ON THE
PUBLIC TREASURY OR DOMAIN, OR INTERFERE WITH THE PUBLIC
ADMINISTRATION."  LAND V. DOLLAR, 330 U.S. 731, 738. 

BUT THE DISTINCTION WE HAVE NOTED BETWEEN THESE TWO LINES OF CASES
APPARENTLY WAS NOT AS CLEAR TO OTHERS AS IT SEEMS TO US.  FOR A
CONFLICT AMONG THE CIRCUITS DEVELOPED IN THESE POSTAL FRAUD CASES.  FN5
NATIONAL CONFERENCE V. GOLDMAN, 85 F.2D 66, WHICH HELD THAT THE
POSTMASTER GENERAL MUST BE MADE A PARTY, SUGGESTED THAT IF HE WERE NOT,
THE LOCAL POSTMASTER WOULD BE LEFT UNDER A COMMAND OF HIS SUPERIOR TO
DO WHAT THE COURT HAS FORBIDDEN.  BUT THAT SEEMS TO US IMMATERIAL IF
THE DECREE WHICH IS ENTERED WILL EFFECTIVELY GRANT THE RELIEF DESIRED
BY EXPENDING ITSELF ON THE SUBORDINATE OFFICIAL WHO IS BEFORE THE
COURT.  IT SEEMS PLAIN IN THE PRESENT CASE THAT THAT WILL BE THE RESULT
EVEN THOUGH THE LOCAL POSTMASTER ALONE IS SUED.  IT IS HE WHO REFUSES
TO PAY MONEY ORDERS, WHO PLACES THE STAMP "FRAUDULENT" ON THE MAIL, WHO
RETURNS THE MAIL TO THE SENDERS.  IF HE DESISTS IN THOSE ACTS, THE
MATTER IS AT AN END.  THAT IS ALL THE RELIEF WHICH PETITIONERS SEEK. 
THE DECREE IN ORDER TO BE EFFECTIVE NEED NOT REQUIRE THE POSTMASTER
GENERAL TO DO A SINGLE THING - HE NEED NOT BE REQUIRED TO TAKE NEW
ACTION EITHER DIRECTLY AS IN THE SMITH AND FALL CASES OR INDIRECTLY
THROUGH HIS SUBORDINATE AS IN THE RUTTER CASE.  NO CONCURRENCE ON HIS
PART IS NECESSARY TO MAKE LAWFUL THE PAYMENT OF THE MONEY ORDERS AND
THE RELEASE OF THE MAIL UNSTAMPED.  YET THAT IS ALL THE COURT IS ASKED
TO COMMAND.  REVERSED. 

FN1  THE CIRCUIT COURT OF APPEALS IN THE INSTANT CASE FOLLOWED ITS
EARLIER DECISIONS HOLDING THAT THE POSTMASTER GENERAL WAS AN
INDISPENSABLE PARTY.  NEHER V. HARWOOD, 128 F.2D 846; DOLPHIN V. STARR,
130 F.2D 868.  ACCORD:  NATIONAL CONFERENCE V. GOLDMAN, 85 F.2D
66(SECOND CIRCUIT).  CONTRA:  JARVIS V. SHACKELTON INHALER CO., 136
F.2D 116(SIXTH CIRCUIT).  FOR COLLECTION AND REVIEW OF THE CASES SEE
158 A.L.R. 1126. 

FN2  JURISDICTION WAS INVOKED UNDER SEC. 24(6) OF THE JUDICIAL CODE,
28 U.S.C. SEC. 41(6). 

FN3  SEE NOTE 1, SUPRA. 

FN4  AND SEE PUBLIC CLEARING HOUSE V. COYNE, 194 U.S. 497; LEACH V.
CARLILE, 258 U.S. 138. 

FN5  SEE NOTE 1, SUPRA. 

THE CHIEF JUSTICE AND MR. JUSTICE BURTON DISSENT. 
..END :


















AERO TRANSIT CO. V. COMM'RS, 332 U.S. 495 


NO. 39.  ARGUED OCTOBER 15, 1947.  - DECIDED DECEMBER 8, 1947.  - 119
MONT. 118, 172 P.2D 452, AFFIRMED. 


APPELLANT, A FOREIGN CORPORATION ENGAGED EXCLUSIVELY IN INTERSTATE
TRANSPORTATION OF FREIGHT BY MOTOR TRUCKS AND DOING A CONTINUOUS AND
SUBSTANTIAL AMOUNT OF SUCH BUSINESS IN MONTANA, CHALLENGED THE VALIDITY
UNDER THE COMMERCE CLAUSE OF TWO MONTANA TAXES ON ALL INTERSTATE AND
INTRASTATE MOTOR CARRIERS OPERATING THERE:  (1) A FLAT TAX OF $10 FOR
EACH VEHICLE OPERATED OVER THE STATE'S HIGHWAYS; AND (2) A "GROSS
REVENUE" TAX WHICH, AS APPLIED TO THE APPELLANT, AMOUNTED TO AN
ADDITIONAL FLAT FEE OF $15 PER VEHICLE.  THE TAXES ARE IMPOSED
EXPRESSLY "IN CONSIDERATION OF THE USE OF THE HIGHWAYS OF THIS STATE"
AND "IN ADDITION TO ALL OTHER LICENSES, FEES AND TAXES IMPOSED UPON
MOTOR VEHICLES IN THIS STATE."  HELD: 

1.  AS APPLIED TO APPELLANT, THE TAXES DO NOT VIOLATE THE FEDERAL
CONSTITUTION.  PP. 501-507. 

2.  THIS COURT IS BOUND BY THE STATE COURT'S CONSTRUCTION OF THE TAX
STATUTE AS APPLYING ALIKE TO INTERSTATE AND INTRASTATE COMMERCE, AND OF
"GROSS OPERATING REVENUE" AS COMPREHENDING ONLY SUCH REVENUE AS IS
DERIVED FROM APPELLANT'S OPERATIONS WITHIN MONTANA.  PP. 499-500. 

3.  THE FACT THAT THE PROCEEDS OF THE TAXES GO INTO THE STATE'S
GENERAL FUND, SUBJECT TO APPROPRIATION FOR GENERAL STATE PURPOSES, DOES
NOT RENDER THEM INVALID.  PP. 502-505. 

4.  THE TAXES ARE LEVIED AS COMPENSATION FOR THE USE OF THE HIGHWAYS,
AND NOT ON THE PRIVILEGE OF DOING INTERSTATE BUSINESS.  P. 505. 

5.  IT IS IMMATERIAL THAT THE STATE IMPOSES TWO TAXES RATHER THAN
ONE, OR THAT APPELLANT PAYS OTHER TAXES WHICH IN FACT ARE DEVOTED TO
HIGHWAY MAINTENANCE.  PP. 506-507. 

AERO MAYFLOWER TRANSIT CO. V. BOARD OF RAILROAD COMMISSIONERS OF
MONTANA ET AL. 

APPEAL FROM THE SUPREME COURT OF MONTANA. 

A STATE COURT OF MONTANA SUSTAINED ONE OF TWO STATE TAXES AS APPLIED
TO APPELLANT, AND ENJOINED APPELLANT FROM OPERATING WITHIN THE STATE
UNTIL THE TAX WAS PAID.  THE SUPREME COURT OF MONTANA UPHELD BOTH TAXES
AS APPLIED TO APPELLANT.  119 MONT. 118, 172 P.2D 452.  AFFIRMED, P.
507. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

AGAIN WE ARE ASKED TO DECIDE WHETHER STATE TAXES AS APPLIED TO AN
INTERSTATE MOTOR CARRIER RUN AFOUL OF THE COMMERCE CLAUSE, ART. I, SEC.
8, OF THE FEDERAL CONSTITUTION. 

TWO DISTINCT MONTANA LEVIES ARE QUESTIONED.  BOTH ARE IMPOSED BY THAT
STATE'S MOTOR CARRIERS ACT, REV. CODES MONT. (1935) SECS. 3847.1
3847.28.  ONE IS A FLAT TAX OF $10 FOR EACH VEHICLE OPERATED BY A MOTOR
CARRIER OVER THE STATE'S HIGHWAYS, PAYABLE ON ISSUANCE OF A CERTIFICATE
OR PERMIT, WHICH MUST BE SECURED BEFORE OPERATIONS BEGIN, AND ANNUALLY
THEREAFTER.  SEC. 3847.16(A).  FN1  THE OTHER IS A QUARTERLY FEE OF ONE
HALF OF ONE PER CENT OF THE MOTOR CARRIER'S "GROSS OPERATING REVENUE,"
BUT WITH A MINIMUM ANNUAL FEE OF $15 PER VEHICLE FOR CLASS C CARRIERS,
IN WHICH GROUP APPELLANT FALLS.  SEC. 3847.27.  FN2  EACH TAX IS
DECLARED EXPRESSLY TO BE LAID "IN CONSIDERATION OF THE USE OF THE
HIGHWAYS OF THIS STATE" AND TO BE "IN ADDITION TO ALL OTHER LICENSES,
FEES AND TAXES IMPOSED UPON MOTOR VEHICLES IN THIS STATE  ...  " 

APPELLANT IS A KENTUCKY CORPORATION, WITH ITS PRINCIPAL OFFICES IN
INDIANAPOLIS, INDIANA.  ITS BUSINESS IS EXCLUSIVELY INTERSTATE.  IT
CONSISTS IN TRANSPORTING HOUSEHOLD GOODS AND OFFICE FURNITURE FROM
POINTS IN ONE STATE TO DESTINATIONS IN ANOTHER.  APPELLANT DOES NO
INTRASTATE BUSINESS IN MONTANA.  THE VOLUME OF ITS INTERSTATE BUSINESS
THERE IS CONTINUOUS AND SUBSTANTIAL, NOT MERELY CASUAL OR OCCASIONAL. 
FN4  IT HOLDS A CERTIFICATE OF CONVENIENCE AND NECESSITY ISSUED BY THE
INTERSTATE COMMERCE COMMISSION, PURSUANT TO WHICH ITS BUSINESS IN
MONTANA AND ELSEWHERE IS CONDUCTED. 

IN 1935 APPELLANT RECEIVED A CLASS C PERMIT TO OPERATE OVER MONTANA
HIGHWAYS, AS REQUIRED BY STATE LAW.  FN5  UNTIL 1937, APPARENTLY, IT
COMPLIED WITH MONTANA REQUIREMENTS, INCLUDING THE PAYMENT OF
REGISTRATION AND LICENSE PLATE FEES FOR ITS VEHICLES OPERATING IN
MONTANA AND OF THE 5[ PER GALLON TAX ON GASOLINE PURCHASED THERE.  FN6
HOWEVER, IN 1937 AND THEREAFTER APPELLANT REFUSED TO PAY THE FLAT $10
FEE IMPOSED BY SEC. 3847.16(A) AND THE $15 MINIMUM "GROSS REVENUE" TAX
LAID BY SEC. 3847.27.  IN CONSEQUENCE, AFTER HEARING ON ORDER TO SHOW
CAUSE, THE APPELLEE BOARD FN7  IN 1939 REVOKED THE 1935 PERMIT AND
BROUGHT THIS SUIT IN A STATE COURT TO ENJOIN APPELLANT FROM FURTHER
OPERATIONS IN MONTANA. 

UPON APPELLANT'S CROSS-COMPLAINT, THE TRIAL COURT ISSUED AN ORDER
RESTRAINING THE BOARD FROM ENFORCING THE "GROSS REVENUE" TAX LAID BY
SEC. 3847.27.  BUT AT THE SAME TIME IT ENJOINED APPELLANT FROM
OPERATING IN MONTANA UNTIL IT PAID THE FEES IMPOSED BY SEC.
3847.16(A).  ON APPEAL THE STATE SUPREME COURT HELD BOTH TAXES
APPLICABLE TO INTERSTATE AS WELL AS INTRASTATE MOTOR CARRIERS AND
CONSTRUED THE TERM "GROSS OPERATING REVENUE" IN SEC. 3847.27 TO MEAN
"GROSS REVENUE DERIVED FROM OPERATIONS IN MONTANA."  N8  IT THEN
SUSTAINED BOTH TAXES AS AGAINST APPELLANT'S CONSTITUTIONAL OBJECTIONS,
STATE AND FEDERAL.  ACCORDINGLY, IT REVERSED THE TRIAL COURT'S JUDGMENT
INSOFAR AS THE "GROSS REVENUE" TAX HAD BEEN HELD INVALID, BUT AFFIRMED
THE DECISION RELATING TO THE FLAT $10 TAX.  119 MONT. 118, 172 P.2D
452. 

WE PUT ASIDE AT THE START APPELLANT'S SUGGESTION THAT THE SUPREME
COURT OF MONTANA HAS MISCONSTRUED THE STATE STATUTES AND THEREFORE THAT
WE SHOULD CONSIDER THEM, FOR PURPOSES OF OUR LIMITED FUNCTION,
ACCORDING TO APPELLANT'S VIEW OF THEIR LITERAL IMPORT.  THE RULE IS TOO
WELL SETTLED TO PERMIT OF QUESTION THAT THIS COURT NOT ONLY ACCEPTS BUT
IS BOUND BY THE CONSTRUCTION GIVEN TO STATE STATUTES BY THE STATE
COURTS.  FN9  ACCORDINGLY, WE ACCEPT THE STATE COURT'S RULINGS, INSOFAR
AS THEY ARE MATERIAL, THAT THE TWO SECTIONS APPLY ALIKE TO INTERSTATE
AND INTRASTATE COMMERCE AND THAT "GROSS OPERATING REVENUE" AS EMPLOYED
IN SEC. 3847.27 COMPREHENDS ONLY SUCH REVENUE DERIVED FROM APPELLANT'S
OPERATIONS WITHIN MONTANA, NOT OUTSIDE THAT STATE.  FN10 

MOREOVER, SINCE MONTANA HAS NOT DEMANDED OR SOUGHT TO ENFORCE PAYMENT
BY APPELLANT OF MORE THAN THE FLAT $15 MINIMUM FEE FOR CLASS C CARRIERS
UNDER SEC. 3847.27,  FN11  WE LIMIT OUR CONSIDERATION OF THE SO-CALLED
"GROSS REVENUE" TAX TO THAT FEE.  THIS TOO IS IN ACCORDANCE WITH THE
STATE SUPREME COURT'S DECLARATION:  "EVEN IF IT BE ADMITTED THAT THE
MANNER OF ARRIVING AT A SOUND BASIS UPON WHICH THE TAX ON GROSS REVENUE
(SHOULD BE CALCULATED) IS NOT PROVIDED BY THE STATUTE, A CONTENTION TO
WHICH WE DO NOT AGREE, NO DIFFICULTY WOULD ARISE IN PUTTING INTO EFFECT
THE MINIMUM FEE OF $15.00 REQUIRED FOR EACH COMPANY VEHICLE OPERATED
WITHIN THE STATE."  FN12 ALTHOUGH THE STATE COURT DID NOT CONCEDE THAT
THE STATUTE COMPREHENDED NO WORKABLE OR SOUND BASIS FOR CALCULATING THE
TAX ABOVE THE MINIMUM, WE TAKE THIS STATEMENT AS A CLEAR DECLARATION
THAT IT WOULD SUSTAIN THE MINIMUM CHARGE EVEN IF FOR SOME REASON THE
AMOUNT OF THE TAX ABOVE THE MINIMUM WOULD HAVE TO FALL. 

WITH THE ISSUES THUS NARROWED, WE HAVE, IN EFFECT, TWO FLAT TAXES,
ONE FOR $10, THE OTHER FOR $15, PAYABLE ANNUALLY UPON EACH VEHICLE
OPERATED ON MONTANA HIGHWAYS IN THE COURSE OF APPELLANT'S BUSINESS,
WITH EACH TAX EXPRESSLY DECLARED TO BE IN ADDITION TO ALL OTHERS AND TO
BE IMPOSED "IN CONSIDERATION OF THE USE OF THE HIGHWAYS OF THIS
STATE." 

NEITHER EXACTION DISCRIMINATES AGAINST INTERSTATE COMMERCE.  EACH
APPLIES ALIKE TO LOCAL AND INTERSTATE OPERATIONS.  NEITHER UNDERTAKES
TO TAX TRAFFIC OR MOVEMENTS TAKING PLACE OUTSIDE MONTANA OR THE GROSS
RETURNS FROM SUCH MOVEMENTS OR TO USE SUCH RETURNS AS A MEASURE OF THE
AMOUNT OF THE TAX.  BOTH LEVIES APPLY EXCLUSIVELY TO OPERATIONS WHOLLY
WITHIN THE STATE OR THE PROCEEDS OF SUCH OPERATIONS, ALTHOUGH THOSE
OPERATIONS ARE INTERSTATE IN CHARACTER. 

MOREOVER, IT IS NOT MATERIAL TO THE VALIDITY OF EITHER TAX THAT THE
STATE ALSO IMPOSES AND COLLECTS THE VEHICLE REGISTRATION AND LICENSE
FEE AND THE GALLONAGE TAX ON GASOLINE PURCHASED IN MONTANA.  THE
VALIDITY OF THOSE TAXES NEITHER IS QUESTIONED NOR WELL COULD BE.
HENDRICK V. MARYLAND, 235 U.S. 610; AERO TRANSIT CO. V. GEORGIA COMM'N,
295 U.S. 285; SONNEBORN BROS. V. CURETON, 262 U.S. 506; EDELMAN V.
BOEING AIR TRANSP., 289 U.S. 249.  NOR DOES THEIR EXACTION HAVE ANY
SIGNIFICANT RELATIONSHIP TO THE IMPOSITION OF THE TAXES NOW IN
QUESTION.  DIXIE OHIO CO. V. COMM'N, 306 U.S. 72, 78; INTERSTATE BUSSES
CORP. V. BLODGETT, 276 U.S. 245, 251.  THEY ARE IMPOSED FOR DISTINCT
PURPOSES AND THE PROCEEDS, AS APPELLANT CONCEDES, ARE DEVOTED TO
DIFFERENT USES, NAMELY, THE POLICING OF MOTOR TRAFFIC AND THE
MAINTENANCE OF THE STATE'S HIGHWAYS.  FN13 

CONCEDEDLY THE PROCEEDS OF THE TWO TAXES PRESENTLY INVOLVED ARE NOT
ALLOCATED TO THOSE OBJECTS.  FN14  RATHER THEY NOW GO INTO THE STATE'S
GENERAL FUND, SUBJECT TO APPROPRIATION FOR GENERAL STATE PURPOSES. 
FN15  INDEED THIS FACT, IN APPELLANT'S VIEW, IS THE VICE OF THE
STATUTE.  BUT IN THAT VIEW APPELLANT MISCONCEIVES THE NATURE AND LEGAL
EFFECT OF THE EXACTIONS.  IT IS FAR TOO LATE TO QUESTION THAT A STATE,
CONSISTENTLY WITH THE COMMERCE CLAUSE, MAY LAY UPON MOTOR VEHICLES
ENGAGED EXCLUSIVELY IN INTERSTATE COMMERCE, OR UPON THOSE WHO OWN AND
SO OPERATE THEM, A FAIR AND REASONABLE NONDISCRIMINATORY TAX AS
COMPENSATION FOR THE USE OF ITS HIGHWAYS.  HENDRICK V. MARYLAND, SUPRA;
CLARK V. POOR, 274 U.S. 554; AERO TRANSIT CO. V. GEORGIA COMM'N, SUPRA;
MORF V. BINGAMAN, 298 U.S. 407; DIXIE OHIO CO. V. COMM'N, SUPRA; CLARK
V. PAUL GRAY, INC., 306 U.S. 583; CF. S.C. HWY.  DEPT.  V. BARNWELL
BROS., 303 U.S. 177.  MOREOVER "COMMON CARRIERS FOR HIRE, WHO MAKE THE
HIGHWAYS THEIR PLACE OF BUSINESS, MAY PROPERLY BE CHARGED AN EXTRA TAX
FOR SUCH USE."  CLARK V. POOR, SUPRA AT 557. 

THE PRESENT TAXES ON THEIR FACE ARE EXACTED "IN CONSIDERATION OF THE
USE OF THE HIGHWAYS OF THIS STATE," THAT IS, THEY ARE LAID FOR THE
PRIVILEGE OF USING THOSE HIGHWAYS.  AND THE AGGREGATE AMOUNT OF THE TWO
TAXES TAKEN TOGETHER IS LESS THAN THE AMOUNT OF SIMILAR TAXES THIS
COURT HAS HERETOFORE SUSTAINED.  CF. DIXIE OHIO CO. V. COMM'N, SUPRA;
AERO TRANSIT CO. V. GEORGIA COMM'N, SUPRA.  THE STATE BUILDS THE
HIGHWAYS AND OWNS THEM.  FN16  MOTOR CARRIERS FOR HIRE, AND
PARTICULARLY TRUCKERS OF HEAVY GOODS, LIKE APPELLANT, MAKE ESPECIALLY
ARDUOUS USE OF ROADWAYS, ENTAILING WEAR AND TEAR MUCH BEYOND THAT
RESULTING FROM GENERAL INDISCRIMINATE PUBLIC USE.  MORF V. BINGAMAN,
SUPRA AT 411.  ALTHOUGH THE STATE MAY NOT DISCRIMINATE AGAINST OR
EXCLUDE SUCH INTERSTATE TRAFFIC GENERALLY IN THE USE OF ITS HIGHWAYS,
THIS DOES NOT MEAN THAT THE STATE IS REQUIRED TO FURNISH THOSE
FACILITIES TO IT FREE OF CHARGE OR INDEED ON EQUAL TERMS WITH OTHER
TRAFFIC NOT INFLICTING SIMILAR DESTRUCTIVE EFFECTS.  CF. CLARK V. POOR,
SUPRA; MORF V. BINGAMAN, SUPRA AT 411.  INTERSTATE TRAFFIC EQUALLY WITH
INTRASTATE MAY BE REQUIRED TO PAY A FAIR SHARE OF THE COST AND
MAINTENANCE REASONABLY RELATED TO THE USE MADE OF THE HIGHWAYS. 

THIS DOES NOT MEAN, AS APPELLANT SEEMS TO ASSUME, THAT THE PROCEEDS
OF ALL TAXES LEVIED FOR THE PRIVILEGE OF USING THE HIGHWAYS MUST BE
ALLOCATED DIRECTLY AND EXCLUSIVELY TO MAINTAINING THEM.  CLARK V. POOR,
SUPRA AT 557; MORF V. BINGAMAN, SUPRA AT 412.  THAT IS TRUE, ALTHOUGH
THIS COURT HAS HELD INVALID, AS FORBIDDEN BY THE COMMERCE CLAUSE,
CERTAIN STATE TAXES ON INTERSTATE MOTOR CARRIERS BECAUSE LAID "NOT AS
COMPENSATION FOR THE USE OF THE HIGHWAYS BUT FOR THE PRIVILEGE OF DOING
THE INTERSTATE BUS BUSINESS."  INTERSTATE TRANSIT, INC. V. LINDSEY, 283
U.S. 183, 186; CF. MCCARROLL V. DIXIE LINES, 309 U.S. 176, 179.  THOSE
CASES DID NOT HOLD THAT ALL STATE EXACTIONS FOR THE PRIVILEGE OF USING
THE STATE'S HIGHWAYS ARE VALID ONLY IF THEIR PROCEEDS ARE REQUIRED TO
GO DIRECTLY AND EXCLUSIVELY FOR HIGHWAY MAINTENANCE, POLICING AND
ADMINISTRATION.  BOTH BEFORE AND AFTER THE INTERSTATE TRANSIT DECISION
THIS COURT HAS SUSTAINED STATE TAXES EXPRESSLY LAID ON THE PRIVILEGE OF
USING THE HIGHWAYS, AS APPLIED TO INTERSTATE MOTOR CARRIERS, DECLARING
IN EACH INSTANCE THAT IT IS IMMATERIAL WHETHER THE PROCEEDS ARE
ALLOCATED TO HIGHWAY USES OR OTHERS.  CLARK V. POOR, SUPRA AT 557; MORF
V. BINGAMAN, SUPRA AT 412.  FN17 

APPELLANT THEREFORE CONFUSES A TAX "ASSESSED FOR A PROPER PURPOSE AND
...  NOT OBJECTIONABLE IN AMOUNT," CLARK V. POOR, SUPRA AT 557, THAT
IS, A TAX AFFIRMATIVELY LAID FOR THE PRIVILEGE OF USING THE STATE'S
HIGHWAYS, WITH A TAX NOT IMPOSED ON THAT PRIVILEGE BUT UPON SOME OTHER
SUCH AS THE PRIVILEGE OF DOING THE INTERSTATE BUSINESS.  THOUGH
NECESSARILY RELATED, IN VIEW OF THE NATURE OF INTERSTATE MOTOR TRAFFIC,
THE TWO PRIVILEGES ARE NOT IDENTICAL, AND IT IS USELESS TO CONFUSE THEM
OR TO CONFOUND A TAX FOR THE PRIVILEGE OF USING THE HIGHWAYS WITH ONE
THE PROCEEDS OF WHICH ARE NECESSARILY DEVOTED TO MAINTAINING THEM. 
WHETHER THE PROCEEDS OF A TAX ARE USED OR REQUIRED TO BE USED FOR
HIGHWAY MAINTENANCE "MAY BE OF SIGNIFICANCE," AS THE COURT HAS SAID,
"WHEN THE POINT IS OTHERWISE IN DOUBT, TO SHOW THAT THE FEE IS IN FACT
LAID FOR THAT PURPOSE AND IS THUS A CHARGE FOR THE PRIVILEGE OF USING
THE HIGHWAYS.  INTERSTATE TRANSIT, INC. V. LINDSEY, SUPRA.  BUT WHERE
THE MANNER OF THE LEVY, LIKE THAT PRESCRIBED BY THE PRESENT STATUTE,
DEFINITELY IDENTIFIES IT AS A FEE CHARGED FOR THE GRANT OF THE
PRIVILEGE, IT IS IMMATERIAL WHETHER THE STATE PLACES THE FEES COLLECTED
IN THE POCKET OUT OF WHICH IT PAYS HIGHWAY MAINTENANCE CHARGES OR IN
SOME OTHER."  MORF V. BINGAMAN, SUPRA AT 412.  FN18 

THE EXACTIONS IN THE PRESENT CASE FALL CLEARLY WITHIN THE RULE OF
MORF V. BINGAMAN AND ITS PREDECESSORS IN AUTHORITY, AND THEREFORE, LIKE
THAT CASE, OUTSIDE THE DECISIONS IN THE INTERSTATE TRANSIT AND LIKE
CASES.  BOTH TAXES ARE LEVIED "IN CONSIDERATION OF THE USE OF THE
HIGHWAYS OF THIS STATE," THAT IS, AS COMPENSATION FOR THEIR USE, AND
BEAR ONLY ON THE PRIVILEGE OF USING THEM, NOT ON THE PRIVILEGE OF DOING
THE INTERSTATE BUSINESS.  MOREOVER, THE FLAT $10 FEE LAID BY SEC.
3847.16(A) IS FURTHER IDENTIFIED AS ONE ON THE PRIVILEGE OF USE BY THE
FACT THAT "UNLIKE THE GENERAL TAX IN INTERSTATE TRANSIT, INC. V.
LINDSEY, 283 U.S. 183, THE LEVY OF WHICH WAS UNRELATED TO THE USE OF
THE HIGHWAYS, GRANT OF THE PRIVILEGE OF THEIR USE IS BY THE PRESENT
STATUTE MADE CONDITIONAL UPON PAYMENT OF THE FEE."  MORF V. BINGAMAN,
SUPRA AT 410. 

THE MINIMUM SO-CALLED "GROSS REVENUE" FEE, ON THE OTHER HAND, IS
TECHNICALLY CONDITIONED ON THE RECEIPT OF SUCH REVENUE FROM THE
OPERATIONS WITHIN MONTANA.  BUT THE FLAT MINIMUM OF $15 ANNUALLY, WHICH
IS ALL WE HAVE BEFORE US IN THE SHAPE THE CASE HAS TAKEN FOR THE
PURPOSES OF DECISION HERE, HAS NONE OF THE ALLEGED VICES CHARACTERISTIC
OF GROSS INCOME TAXES HERETOFORE HELD TO VITIATE SUCH TAXES LAID BY THE
STATES ON INTERSTATE COMMERCE.  AND APPELLANT HAS ADVANCED NO TENABLE
BASIS IN REBUTTAL OF THE LEGISLATIVE DECLARATION THAT THIS TAX TOO IS
EXACTED IN CONSIDERATION OF THE USE OF THE STATE'S HIGHWAYS, I.E., FOR
THE PRIVILEGE OF USING THEM, NOT FOR THAT OF DOING THE INTERSTATE
BUSINESS.  HERE, AS IN MORF V. BINGAMAN, "THERE IS AMPLE SUPPORT FOR A
LEGISLATIVE DETERMINATION THAT THE PECULIAR CHARACTER OF THIS TRAFFIC
INVOLVES A SPECIAL TYPE OF USE OF THE HIGHWAYS," WITH ENHANCED WEAR,
TEAR AND HAZARDS LAYING HEAVIER BURDENS ON THE STATE FOR MAINTENANCE
AND POLICING THAN OTHER TYPES OF TRAFFIC CREATE.  298 U.S. 407, 411. 
IT IS TO COMPENSATE FOR THESE BURDENS THAT THE TAXES ARE IMPOSED, AND
APPELLANT HAS NOT SUSTAINED ITS BURDEN, CLARK V. PAUL GRAY, INC., SUPRA
AT 599, AND AUTHORITIES CITED, OF SHOWING THAT THE LEVIES HAVE NO
REASONABLE RELATION TO THAT END.  FN19 

IT IS OF NO CONSEQUENCE THAT THE STATE HAS SEEN FIT TO LAY TWO
EXACTIONS, SUBSTANTIALLY IDENTICAL, RATHER THAN COMBINE THEM INTO ONE,
OR THAT APPELLANT PAYS OTHER TAXES WHICH IN FACT ARE DEVOTED TO HIGHWAY
MAINTENANCE.  FOR THE STATE DOES NOT EXCEED ITS CONSTITUTIONAL POWERS
BY IMPOSING MORE THAN ONE FORM OF TAX.  INTERSTATE BUSSES CORP. V.
BLODGETT, SUPRA; DIXIE OHIO CO. V. COMM'N, SUPRA.  AND, AS WE HAVE
SAID, THE AGGREGATE AMOUNT OF BOTH TAXES COMBINED IS LESS THAN THAT OF
TAXES HERETOFORE SUSTAINED.  IN VIEW OF THESE FACTS THERE IS NOT EVEN
SEMBLANCE OF SUBSTANCE TO APPELLANT'S CONTENTION THAT THE TAXES ARE
EXCESSIVE. 

NEITHER IS THERE MERIT IN ITS OTHER ARGUMENTS, WHICH WE HAVE
CONSIDERED, INCLUDING THOSE URGING DUE PROCESS AND EQUAL PROTECTION
GROUNDS FOR INVALIDATING THE LEVIES. 

THE JUDGMENT OF THE SUPREME COURT OF MONTANA IS AFFIRMED. 

FN1  THE SECTION WAS ENACTED ORIGINALLY AS MONT. LAWS, 1931, C. 184,
SEC. 16.  TEXTUALLY IT IS AS FOLLOWS:  "(A) IN ADDITION TO ALL OF THE
LICENSES, FEES OR TAXES IMPOSED UPON MOTOR VEHICLES IN THIS STATE, AND
IN CONSIDERATION OF THE USE OF THE PUBLIC HIGHWAYS OF THIS STATE, EVERY
MOTOR CARRIER, AS DEFINED IN THIS ACT, SHALL, AT THE TIME OF THE
ISSUANCE OF A CERTIFICATE AND ANNUALLY THEREAFTER, ON OR BETWEEN THE
FIRST DAY OF JULY AND THE FIFTEENTH DAY OF JULY, OF EACH CALENDAR YEAR,
PAY TO THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF MONTANA THE
SUM OF TEN DOLLARS ($10.00), FOR EVERY MOTOR VEHICLE OPERATED BY THE
CARRIER OVER OR UPON THE PUBLIC HIGHWAYS OF THIS STATE.  ...  " 

IN FURTHER RELATION TO ISSUANCE OF THE PERMIT, SEE NOTE 5. 

FN2  THIS SECTION ORIGINALLY WAS MONT. LAWS, 1935, C. 100, SEC. 2. 
IT READS AS FOLLOWS:  "IN ADDITION TO ALL OTHER LICENSES, FEES AND
TAXES IMPOSED UPON MOTOR VEHICLES IN THIS STATE AND IN CONSIDERATION OF
THE USE OF THE HIGHWAYS OF THIS STATE, EVERY MOTOR CARRIER HOLDING A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE PUBLIC
SERVICE COMMISSION, SHALL BETWEEN THE FIRST AND FIFTEENTH DAYS OF
JANUARY, APRIL, JULY AND OCTOBER OF EACH YEAR, FILE WITH THE PUBLIC
SERVICE COMMISSION A STATEMENT SHOWING THE GROSS OPERATING REVENUE OF
SUCH CARRIER FOR THE PRECEDING THREE MONTHS OF OPERATION, OR PORTION
THEREOF, AND SHALL PAY TO THE BOARD A FEE OF ONE-HALF OF ONE PER CENT
OF THE AMOUNT OF SUCH GROSS OPERATING REVENUE; PROVIDED, HOWEVER, THAT
THE MINIMUM ANNUAL FEE WHICH SHALL BE PAID BY EACH CLASS A AND CLASS B
CARRIER FOR EACH VEHICLE REGISTERED AND/OR OPERATED UNDER THE
PROVISIONS OF THE MOTOR CARRIER ACT SHALL BE THIRTY DOLLARS ($30.00)
AND THE MINIMUM ANNUAL FEE WHICH SHALL BE PAID BY EACH CLASS C CARRIER
FOR EACH VEHICLE REGISTERED AND/OR OPERATED UNDER THE MOTOR CARRIER ACT
SHALL BE FIFTEEN DOLLARS ($15.00)." 

THE THREE CLASSES OF CARRIERS. 

PRIOR TO JULY 1, 1941, THE FEES COLLECTED PURSUANT TO SECS.
3847.16(A) AND 3847.27 WERE PAID INTO THE STATE TREASURY AND CREDITED
TO "THE MOTOR CARRIER FUND."  FN3  AFTER THAT DATE, BY VIRTUE OF MONT.
LAWS, 1941, C. 14, SEC. 2, THEY WERE ALLOCATED TO THE STATE'S GENERAL
FUND. 

FN3  THE MONEYS IN THE MOTOR CARRIER FUND WERE SUBJECT TO
APPROPRIATION FOR USE IN SUPERVISION AND REGULATION OF MANY ACTIVITIES
OTHER THAN THOSE CONNECTED WITH THE PUBLIC HIGHWAYS.  SEE REV. CODES
MONT. (1935), SECS. 3847.17, 3847.28; AND CF. NOTE 13. 

FN4  APPELLANT'S ANSWER AND CROSS-COMPLAINT SET FORTH STATISTICS
CONCERNING ITS USE OF MONTANA HIGHWAYS DURING THE YEARS 1937, 1938 AND
1939.  THE FIGURES SHOW APPELLANT'S EQUIPMENT OPERATING ON MONTANA
HIGHWAYS DURING 227 DAYS IN 1937; 385 TRUCKING DAYS IN 1938; AND 405
TRUCKING DAYS IN 1939.  SEE ALSO NOTE 6. 

FN5  THE STATUTE WAS MONT. LAWS, 1931, C. 184, SEC. 23, NOW REV.
CODES MONT. (1935), SEC. 3847.23.  THE SECTION APPLIED THE ACT OF WHICH
IT WAS A PART TO INTERSTATE AND FOREIGN COMMERCE "INSOFAR AS SUCH
APPLICATION MAY BE PERMITTED UNDER THE PROVISIONS OF" THE FEDERAL
CONSTITUTION, TREATIES AND ACTS OF CONGRESS, BUT EXPRESSLY EXEMPTED
INTERSTATE CARRIERS FROM MAKING "ANY SHOWING OF PUBLIC CONVENIENCE AND
NECESSITY" IN ORDER TO SECURE THE CERTIFICATE OR PERMIT. 

FN6  THESE TAXES WERE IMPOSED SEPARATELY FROM THE TWO INVOLVED IN
THIS CASE.  APPELLANT'S BRIEF STATES THE REGISTRATION AND LICENSE PLATE
FEES INCREASED FROM $660.50 IN 1937 TO $1,212.50 IN 1938 AND TO
$1,630.50 IN 1939.  THE GASOLINE TAX INCREASED FROM $745.30 IN 1937 TO
$1,257.90 IN 1938 AND $1,649.98 IN 1939.  THE GALLONAGE TAX, THOUGH
ULTIMATELY BORNE BY THE CONSUMER, WAS LAID ON THE SALE AND COLLECTED
FROM THE DEALER. 

FN7  IT SHOULD BE NOTED THAT "THE BOARD OF RAILROAD COMMISSIONERS,"
AS USED IN SEC. 3847.16(A), AND "THE PUBLIC SERVICE COMMISSION," AS
USED IN SEC. 3847.27, DESIGNATE A SINGLE BODY, INVESTED WITH REGULATORY
POWER OVER VARIOUS PUBLIC UTILITIES IN ADDITION TO MOTOR CARRIERS,
E.G., RAILROADS, COMMON CARRIERS OF OIL, ETC.  BY REV. CODES MONT.
(1935), SEC. 3880, "THE BOARD OF RAILROAD COMMISSIONERS  ...  SHALL BE
EX-OFFICIO THE PUBLIC SERVICE COMMISSION HEREBY CREATED ...  "  THE TWO
TERMS WERE SAID BY THE MONTANA SUPREME COURT IN THIS CASE TO BE "USED
INTERCHANGEABLY."  119 MONT. 118, 136, 172 P.2D 452, 461. 

FN8  THIS JUDICIAL CONSTRUCTION WAS EMBODIED IN AN AMENDMENT TO THE

FN9  LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S. 459; HUDDLESTON
V. DWYER, 322 U.S. 232; MINNESOTA V. PROBATE COURT, 309 U.S. 270;
MOREHEAD V. N.Y. EX REL. TIPALDO, 298 U.S. 587; CF. ERIE R. CO. V.
TOMPKINS, 304 U.S. 64. 

FN10  ACTING NOT ONLY IN THE VIEW THAT STATUTES ARE PRESUMPTIVELY
CONSTITUTIONAL AND, IF NECESSARY, ARE TO BE SO CONSTRUED AS TO MAKE
THEM SO, THE COURT NOTED THAT SEC. 3847.16(B) EXPRESSLY PROVIDES THAT,
WHEN SERVICE "IS RENDERED PARTLY IN THIS STATE AND PARTLY IN AN
ADJOINING STATE OR FOREIGN COUNTRY," CARRIERS "SHALL COMPLY WITH THE
PROVISIONS OF THIS ACT" CONCERNING "PAYMENT OF COMPENSATION" AND MAKING
REPORTS BY SHOWING "THE TOTAL BUSINESS PERFORMED WITHIN THE LIMITS OF
THIS STATE."  ACCORDINGLY IT HELD THAT SECS. 3847.27 AND 3847.16 SHOULD
BE READ TOGETHER AND THE LIMITATION OF SEC. 3847.16(B) "WITHIN THE
LIMITS OF THIS STATE" THUS BECAME A PART OF SEC. 3847.27 AS WELL AS
SEC. 3847.16(A).  119 MONT. 118, 134, 172 P.2D 452, 460. 

FN11  APPELLANT'S VICE PRESIDENT AND GENERAL MANAGER, WHEATING,
TESTIFIED THAT FOR PURPOSES OF APPLYING SEC. 3847.27 HE HAD CALCULATED,
FOR EACH OF THE YEARS 1939 THROUGH 1942, "THE (GROSS) INCOME FOR THAT
OPERATION OF THE LOAD MILES OPERATED IN MONTANA BY USING AN AVERAGE
INCOME PER MILE FIGURE BASED UPON THE PROBABLE LOAD FACTOR WE WOULD
HAVE HAD IN MONTANA."  ON THIS BASIS THE AMOUNT OF THE TAX AS
CALCULATED AT ONE-HALF OF ONE PER CENT QUARTERLY WAS SUBSTANTIALLY
BELOW THE STATUTORY MINIMUM FOR EACH OF THE FOUR YEARS.  SEE NOTE 19. 
THESE FIGURES APPARENTLY WERE REPORTED TO AND ACCEPTED BY THE BOARD AS
THE BASIS FOR ITS DEMANDS UPON THE TAXPAYER FOR THE FLAT $15 MINIMUM
ANNUAL TAX. 

FN12  119 MONT. 118, 134, 172 P.2D 452, 460.  APPELLANT HAD ARGUED,
AS IT DOES HERE, THAT EVEN IF THE "GROSS REVENUE" TAX IS LIMITED TO
REVENUE DERIVED FROM OPERATIONS IN MONTANA, IT IS NEVERTHELESS INVALID
FOR WANT OF ANY PRESCRIBED METHOD ON THE FACE OF THE STATUTE FOR
ASCERTAINING OR CALCULATING THE TAX.  THE STATE COURT HELD THAT THE
STATUTE BY NECESSARY IMPLICATION AUTHORIZED THE BOARD TO "ADOPT ANY
FAIR AND REASONABLE MODE OF ENFORCEMENT DESIGNED TO EFFECTUATE THE
PURPOSES OF THE ACT."  119 MONT. 118, 135, 172 P.2D 452, 461.  IN VIEW
OF OUR LIMITATION OF THE QUESTION BEFORE US, AS STATED IN THE TEXT, WE
NEED NOT EXPRESS OPINION CONCERNING THIS RULING OR ANY TAX ABOVE THE
MINIMUM CALCULATED IN ACCORDANCE WITH IT.  CF. NOTE 11. 

IN ANOTHER CONNECTION THE STATE SUPREME COURT ADVERTED TO THE
SEPARABILITY CLAUSE CONTAINED IN SEC. 3847.24 OF THE STATUTE, THOUGH
NOT REFERRING TO IT EXPRESSLY IN RELATION TO THE STATEMENT QUOTED IN
THE TEXT. 

FN13  SEE NOTE 6 AND TEXT.  IT IS ADMITTED BY THE PLEADINGS THAT THE
PROCEEDS OF THE VEHICLE REGISTRATION AND LICENSE TAX AND THE GALLONAGE
TAX ARE ALLOCATED TO THE CONSTRUCTION, REPAIR AND MAINTENANCE OF STATE
HIGHWAYS. 

FN14  THE BOARD CONCEDES IN THE BRIEF FILED HERE THAT THE STATE
SUPREME COURT WAS IN ERROR IN THE STATEMENT THAT THE REVENUE FROM THE
TWO TAXES PRESENTLY IN ISSUE "IS DEVOTED TO THE BUILDING, REPAIRING AND
POLICING OF SUCH HIGHWAYS  ...  "  119 MONT. 118, 138, 172 P.2D 452,
462. 

FN15  SEE NOTE 3 AND TEXT. 

FN16  IT IS IMMATERIAL THAT THE STATE RECEIVES FEDERAL AID FOR STATE
ROAD CONSTRUCTION, A FACT ON WHICH APPELLANT PLACES SOME EMPHASIS. 

FN17  SEE NOTE 18 INFRA AND TEXT. 

FN18  IN CLARK V. POOR, THE COURT STATED:  "SINCE THE TAX IS ASSESSED
FOR A PROPER PURPOSE AND IS NOT OBJECTIONABLE IN AMOUNT, THE USE TO
WHICH THE PROCEEDS ARE PUT IS NOT A MATTER WHICH CONCERNS THE
PLAINTIFFS."  274 U.S. 554, 557. 

FN19  APPELLANT CLAIMS THAT THE $15 MINIMUM FEE IS UNREASONABLE SINCE
IT IS ROUGHLY TEN TIMES GREATER THAN THE TAX THAT WOULD BE REQUIRED IF
THE PERCENTAGE STANDARD PROVIDED IN THE STATUTE WERE APPLIED.  TO
ACCEPT APPELLANT'S POSITION WOULD MEAN THAT A STATE COULD NEVER IMPOSE
A MINIMUM FEE, BUT WOULD HAVE TO ADJUST ITS TAXES TO THE INEVITABLE
VARIATIONS IN THE USE OF THE HIGHWAYS MADE BY VARIOUS CARRIERS.  THE
FEDERAL CONSTITUTION DOES NOT REQUIRE THE STATE TO ELABORATE A SYSTEM
OF MOTOR VEHICLE TAXATION WHICH WILL REFLECT WITH EXACT PRECISION EVERY
GRADATION IN USE.  IN RETURN FOR THE $15 FEE APPELLANT CAN DO BUSINESS
GROSSING $3,000 PER VEHICLE ANNUALLY FOR OPERATIONS ON MONTANA ROADS. 
APPELLANT WAS NOT WRONGED BY ITS FAILURE TO MAKE THE FULL USE OF THE
HIGHWAYS PERMITTED.  AERO TRANSIT CO. V. GEORGIA COMM'N, 295 U.S. 285;
MORF V. BINGAMAN, 298 U.S. 407; CF. KANE V. NEW JERSEY, 242 U.S. 160. 
..END :























COX V. UNITED STATES, 332 U.S. 442 


ARGUED OCTOBER 14-15, 1947.  - DECIDED NOVEMBER 24, 1947.  - 157 F.2D
787, AFFIRMED. 


PETITIONERS, JEHOVAH'S WITNESSES, WERE CONVICTED IN PROSECUTIONS FOR
ABSENCE WITHOUT LEAVE FROM A CIVILIAN PUBLIC SERVICE CAMP, IN VIOLATION
OF SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.  THE
DEFENSE IN EACH CASE WAS THAT THE LOCAL BOARD'S CLASSIFICATION OF THE
PETITIONER AS A CONSCIENTIOUS OBJECTOR RATHER THAN AS AN EXEMPT
MINISTER OF RELIGION WAS INVALID.  HELD: 

1.  JUDGMENTS OF THE CIRCUIT COURT OF APPEALS AFFIRMING THE
CONVICTIONS ARE HERE AFFIRMED.  PP. 443-444, 455. 

2.  HAVING EXHAUSTED THEIR REMEDIES IN THE SELECTIVE SERVICE PROCESS
AND COMPLIED WITH THE ORDERS OF THE LOCAL BOARDS TO REPORT TO CAMP,
PETITIONERS WERE ENTITLED TO RAISE THE ISSUE OF THE VALIDITY OF THEIR
CLASSIFICATIONS IN THEIR CRIMINAL TRIALS FOR ABSENCE WITHOUT LEAVE.  P.
448. 

3.  THE LOCAL BOARDS' DENIAL TO THE DEFENDANTS OF THE CLASSIFICATION
OF MINISTER OF RELIGION IS FINAL UNLESS IT IS WITHOUT BASIS IN FACT. 
PP. 448-452. 

4.  THE QUESTION WHETHER THE LOCAL BOARDS' DENIAL TO THE DEFENDANTS
OF THE CLASSIFICATION OF MINISTER OF RELIGION WAS WITHOUT BASIS IN FACT
IS A QUESTION OF LAW FOR DETERMINATION BY THE COURT.  PP. 452-453. 

5.  IN THE CRIMINAL TRIALS, REVIEW OF THE LOCAL BOARDS'
CLASSIFICATIONS WAS PROPERLY LIMITED TO THE EVIDENCE WHICH WAS BEFORE
THE BOARDS AND UPON WHICH THEY ACTED.  PP. 453-455. 

COX V. UNITED STATES. 

NO. 66.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT* . 

*TOGETHER WITH NO. 67, THOMPSON V. UNITED STATES, AND NO. 68, ROISUM
V. UNITED STATES, ALSO ON CERTIORARI TO THE SAME COURT. 

PETITIONERS WERE CONVICTED IN THE DISTRICT COURT OF VIOLATING THE
SELECTIVE TRAINING AND SERVICE ACT OF 1940.  THE CONVICTIONS WERE
AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  157 F.2D 787.  THIS COURT
GRANTED CERTIORARI.  331 U.S. 801.  AFFIRMED, P. 455. 

MR. JUSTICE REED ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE JACKSON, AND MR.
JUSTICE BURTON JOIN. 

THESE CASES PRESENT THE QUESTION OF THE SCOPE OF REVIEW OF A
SELECTIVE SERVICE CLASSIFICATION IN A TRIAL FOR ABSENCE WITHOUT LEAVE
FROM A CIVILIAN PUBLIC SERVICE CAMP.  PETITIONERS ARE JEHOVAH'S
WITNESSES WHO WERE CLASSIFIED AS CONSCIENTIOUS OBJECTORS DESPITE THEIR
CLAIM TO CLASSIFICATION AS MINISTERS OF RELIGION.  MINISTERS ARE EXEMPT
FROM MILITARY AND OTHER SERVICE UNDER THE ACT.  ALL THREE PETITIONERS
EXHAUSTED THEIR REMEDIES IN THE SELECTIVE SERVICE PROCESS AND COMPLIED
WITH THE ORDER OF THE LOCAL BOARD DIRECTING THEM TO REPORT TO CAMP. 
COX AND THOMPSON WERE INDICTED FOR LEAVING THE CAMP WITHOUT PERMISSION,
AND ROISUM WAS INDICTED FOR FAILING TO RETURN AFTER PROPER LEAVE, IN
VIOLATION OF SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE ACT OF
1940.  54 STAT. 885, 57 STAT. 597, 50 U.S.C. APPENDIX SECS. 301-318. 

ON THEIR TRIALS PETITIONERS REQUESTED DIRECTED VERDICTS, AT
APPROPRIATE TIMES, BECAUSE THE SELECTIVE SERVICE ORDERS WERE INVALID
AND REQUESTED THE COURT TO CHARGE THE JURY THAT THEY ACQUIT PETITIONERS
IF THEY FOUND THAT THEY WERE MINISTERS OF RELIGION AND THEREFORE EXEMPT
FROM ALL SERVICE.  THE TRIAL JUDGE DID NOT GRANT PETITIONERS' REQUESTS,
HOWEVER, AND INSTRUCTED THE JURIES THAT THEY WERE NOT TO CONCERN
THEMSELVES WITH THE VALIDITY OF THE CLASSIFICATION ORDERS.  PETITIONERS
WERE CONVICTED, AND ON APPEAL TO THE CIRCUIT COURT OF APPEALS THEIR
CONVICTIONS WERE AFFIRMED.  157 F.2D 787.  WE GRANTED CERTIORARI IN
ORDER TO RESOLVE QUESTIONS CONCERNING THE SUBMISSION TO THE JURY OF
EVIDENCE, TO WIT, THE FILES OF THE LOCAL BOARD OF THE SELECTIVE SERVICE
SYSTEM, AS RELEVANT TO THE CHARGE OF VIOLATION OF SELECTIVE SERVICE
ORDERS.  331 U.S. 801. 

PETITIONER COX REGISTERED UNDER THE SELECTIVE TRAINING AND SERVICE
ACT ON OCTOBER 16, 1940, AND IN HIS QUESTION-NAIRE STATED THAT HE WAS
22 YEARS OLD AND HAD BEEN EMPLOYED AS A TRUCK DRIVER SINCE 1936.  THE
LOCAL BOARD CLASSIFIED HIM IV-F, AS NOT PHYSICALLY FIT FOR SERVICE, ON
JANUARY 31, 1941, AND ON MARCH 10, 1942, CHANGED THE CLASSIFICATION TO
I-A.  TEN DAYS LATER COX FILED A REQUEST FOR RECLASSIFICATION AS IV-E
(CONSCIENTIOUS OBJECTOR), STATING THAT HE HAD BECOME A JEHOVAH'S
WITNESS IN JANUARY 1942.  THE BOARD AT FIRST REJECTED THE CLAIM, BUT ON
JUNE 12 OF THE SAME YEAR GRANTED HIM THE REQUESTED CLASSIFICATION.  TEN
DAYS LATER PETITIONER FIRST MADE HIS CLAIM FOR TOTAL EXEMPTION FROM
SERVICE, CLAIMING TO BE A MINISTER OF RELIGION; THE LOCAL BOARD REFUSED
THE EXEMPTION AND ITS ACTION WAS SUSTAINED BY THE BOARD OF APPEAL.  ON
MAY 18, 1944, THE BOARD ORDERED COX TO REPORT TO CAMP, AND ON MAY 26 HE
COMPLIED AND THEN IMMEDIATELY LEFT CAMP AND DID NOT RETURN. 

UPON TRIAL COX'S SELECTIVE SERVICE FILE WAS RECEIVED IN EVIDENCE.  IT
CONTAINED AN ORDINATION CERTIFICATE FROM THE WATCH TOWER BIBLE AND
TRACT SOCIETY STATING THAT COX WAS "A DULY ORDAINED MINISTER OF THE
GOSPEL" AND THAT HIS "ENTIRE TIME" WAS DEVOTED TO MISSIONARY WORK.  THE
FILE ALSO CONTAINED AN AFFIDAVIT OF A COMPANY SERVANT, COX'S CHURCH
SUPERIOR, DATED OCTOBER 29, 1942, STATING THAT COX "REGULARLY AND
CUSTOMARILY SERVES AS A MINISTER BY GOING FROM HOUSE TO HOUSE AND
CONDUCTING BIBLE STUDIES AND BIBLE TALKS."  THERE WAS ALSO AN AFFIDAVIT
BY COX, DATED OCTOBER 28, 1942, STATING THAT HE WAS ENROLLED IN THE
"PIONEER SERVICE" ON OCTOBER 16 AND THAT HE WAS "ABLE TO AVERAGE 150
HOURS PER MONTH TO MY MINISTERIAL DUTIES WITHOUT SECULAR WORK."  HE
ADDED THAT "MY ENTIRE TIME WILL BE DEVOTED TO PREACHING THE GOSPEL AS A
PIONEER."  COX TESTIFIED AT THE TRIAL IN OCTOBER 1944 AS TO HIS DUTIES
AS A MINISTER THAT HE PREACHED FROM HOUSE TO HOUSE, CONDUCTED FUNERALS,
AND "INSTRUCTED THE BIBLE" IN HOMES.  NO EVIDENCE WAS INTRODUCED
SHOWING THE TOTAL AMOUNT OF TIME COX HAD SPENT IN RELIGIOUS ACTIVITIES
SINCE OCTOBER 16, 1942.  NOR WAS THERE EVIDENCE OF THE SECULAR
ACTIVITIES OF COX NOR THE TIME EMPLOYED IN THEM.  ALTHOUGH THE
SELECTIVE SERVICE FILE WAS INTRODUCED IN EVIDENCE, AND THE TRIAL COURT
DENIED THE MOTION FOR A DIRECTED VERDICT, IT DOES NOT APPEAR THAT THE
TRIAL JUDGE EXAMINED THE FILE TO DETERMINE WHETHER THE ACTION OF THE
LOCAL BOARD WAS ARBITRARY AND CAPRICIOUS OR WITHOUT BASIS IN FACT.  AT
THAT TIME THE LOWER FEDERAL COURTS INTERPRETED FALBO V. UNITED STATES,
320 U.S. 549, AS MEANING THAT NO JUDICIAL REVIEW OF ANY SORT COULD BE
HAD OF A SELECTIVE SERVICE ORDER.  IN ESTEP V. UNITED STATES, 327 U.S.
114, WE HELD THAT A LIMITED REVIEW COULD BE OBTAINED IF THE REGISTRANT
HAD EXHAUSTED HIS ADMINISTRATIVE REMEDIES, AND THE CIRCUIT COURT OF
APPEALS IN ACCORDANCE WITH THAT DECISION REVIEWED THE FILE OF COX AND
FOUND THAT THE EVIDENCE WAS "SUBSTANTIALLY IN SUPPORT" OF THE
CLASSIFICATION FOUND BY THE BOARD. 

PETITIONER THOMPSON ALSO REGISTERED ON OCTOBER 16, 1940, CLAIMING
EXEMPTION AS A MINISTER.  HE STATED IN HIS QUESTIONNAIRE THAT HE WAS 30
YEARS OLD AND THAT FOR THE PAST 13 YEARS HE HAD OPERATED A GROCERY
STORE AND HAD BEEN A MINISTER SINCE AUGUST 1, 1940.  AT FIRST THE LOCAL
BOARD GAVE HIM A DEFERRED CLASSIFICATION BECAUSE OF DEPENDENCY, BUT
THEN CHANGED HIS CLASSIFICATION TO IV-E.  THOMPSON APPEALED TO THE
BOARD OF APPEAL ON NOVEMBER 5, 1943, EXPLAINING HIS DUTIES AS A
MINISTER AND PRESENTING A FULL STATEMENT OF HIS ARGUMENT THAT AS A
COLPORTEUR HE WAS WITHIN THE EXEMPTION FOR MINISTERS AS INTERPRETED BY
SELECTIVE SERVICE REGULATIONS.  HE ATTACHED AN AFFIDAVIT FROM THE
COMPANY SERVANT, WHICH STATED THAT THOMPSON DURING THE PRECEDING TWELVE
MONTHS HAD DEVOTED 519 1/2 HOURS TO "FIELD SERVICE," REPRESENTING TIME
SPENT IN GOING FROM HOUSE TO HOUSE, AND MAKING "BACK-CALLS ON THE
PEOPLE OF GOOD WILL," BUT NOT INCLUDING TIME SPENT IN CONDUCTING
STUDIES AT THE "LOCAL KINGDOM HALL."  ANOTHER AFFIDAVIT FROM THE
COMPANY SERVANT STATED THAT THOMPSON WAS AN ORDAINED MINISTER OF THE
GOSPEL, THAT HE WAS SERVING AS ASSISTANT COMPANY SERVANT, AND THAT HE
WAS A "SCHOOL INSTRUCTOR IN A COURSE IN THEOCRATIC MINISTRY."  THOMPSON
ALSO ATTACHED THREE CERTIFICATES FROM THE NATIONAL HEADQUARTERS OF THE
WATCH TOWER BIBLE AND TRACT SOCIETY WHICH STATED THAT THOMPSON HAD BEEN
ASSOCIATED WITH THE SOCIETY SINCE 1941, THAT HE SERVED AS ASSISTANT
COMPANY SERVANT AND THEOCRATIC MINISTRY INSTRUCTOR, AND ALSO AS
ADVERTISING SERVANT AND BOOK STUDY CONDUCTOR.  UNLIKE THE OTHER TWO
PETITIONERS, THOMPSON DID NOT INTRODUCE AN ORDINATION CERTIFICATION
FROM NATIONAL HEAD-QUARTERS STATING THAT HE DEVOTED HIS ENTIRE TIME AS
A MINISTER.  THOMPSON ALSO FILED A STATEMENT SIGNED BY TWELVE WITNESSES
WHICH STATED THAT THEY REGARDED THOMPSON AS AN ORDAINED MINISTER OF THE
GOSPEL.  NO EVIDENCE WAS SUBMITTED INDICATING ANY CHANGE IN THOMPSON'S
ACTIVITIES IN OPERATING HIS GROCERY STORE.  THE BOARD OF APPEAL
SUSTAINED THE LOCAL BOARD IN ITS CLASSIFICATION, THE BOARD ORDERED
THOMPSON TO REPORT TO CAMP, AND ON APRIL 18, 1944, HE REPORTED AND
IMMEDIATELY LEFT.  THOMPSON'S TRIAL FOLLOWED THE SAME PATTERN AS COX'S,
EXCEPT THAT THOMPSON WAS NOT ALLOWED TO TESTIFY CONCERNING HIS DUTIES
AS A MINISTER. 

PETITIONER ROISUM ALSO REGISTERED ON THE INITIAL REGISTRATION DAY,
AND FILED A QUESTIONNAIRE STATING THAT HE WAS 22 YEARS OLD, THAT HE HAD
WORKED FOR THE PAST 15 YEARS AS A FARMER, AND THAT HE WAS ORDAINED AS A
MINISTER IN JUNE 1940.  ROISUM MADE CLAIM TO A MINISTER'S EXEMPTION BUT
AT THE SAME TIME SUBMITTED AN AFFIDAVIT SIGNED BY HIS FATHER SAYING
THAT PETITIONER WAS NECESSARY TO THE OPERATION OF HIS FATHER'S FARM. 
IN JUNE 1942 ROISUM FILED A CONSCIENTIOUS OBJECTOR'S FORM CLAIMING
EXEMPTION FROM BOTH COMBATANT AND NON-COMBATANT MILITARY SERVICE; THIS
FORM WAS APPARENTLY FILED UNDER MISAPPREHENSION, SINCE ROISUM DID NOT
ABANDON HIS CONTENTION THAT HE SHOULD BE CLASSIFIED AS A MINISTER.  IN
THE FORM HE STATED THAT HE PREACHED THE GOSPEL OF THE KINGDOM AT EVERY
OPPORTUNITY.  ROISUM ALSO ENCLOSED A LETTER FROM NATIONAL HEADQUARTERS
OF THE SOCIETY STATING THAT ROISUM HAD BEEN AFFILIATED WITH THE SOCIETY
SINCE 1936, THAT HE HAD BEEN BAPTIZED IN 1940 AND "WAS APPOINTED DIRECT
REPRESENTATIVE OF THIS ORGANIZATION TO PERFORM MISSIONARY AND
EVANGELISTIC SERVICE IN ORGANIZING AND ESTABLISHING CHURCHES AND
GENERALLY PREACHING THE GOSPEL OF THE KINGDOM OF GOD IN DEFINITELY
ASSIGNED TERRITORY IN 1941" AND THAT ROISUM DEVOTED HIS "ENTIRE TIME"
TO MISSIONARY WORK AND WAS A DULY ORDAINED MINISTER.  THE LOCAL BOARD
CLASSIFIED ROISUM AS A CONSCIENTIOUS OBJECTOR TO COMBAT SERVICE (I-A
O), AND ROISUM APPEALED ON JUNE 30, 1943.  ROISUM ATTACHED AN AFFIDAVIT
FROM HIS COMPANY SERVANT STATING THAT ROISUM WAS AN ASSISTANT COMPANY
SERVANT, A BACK CALL SERVANT, AND BOOK STUDY CONDUCTOR, AND THAT BY
PERFORMANCE OF THESE DUTIES ROISUM HAD ACQUITTED HIMSELF AS A "REGULAR
MINISTER OF THE GOSPEL."  THE COMPANY SERVANT SUBMITTED A SCHEDULE
SHOWING THE NUMBER OF HOURS WHICH ROISUM HAD SPENT IN RELIGIOUS
ACTIVITIES FOR SIX MONTHS FROM OCTOBER 1942 TO MARCH 1943, RANGING FROM
AS LITTLE AS 11 HOURS PER MONTH TO AS MANY AS 69, AVERAGING ABOUT 40. 
THE BOARD OF APPEAL CHANGED THE CLASSIFICATION TO IV-E AND REJECTED
ROISUM'S REQUEST THAT AN APPEAL BE TAKEN TO THE PRESIDENT.  ROISUM WAS
ORDERED TO REPORT TO CAMP, DISOBEYED THE ORDER, AND WAS ARRESTED AND
INDICTED.  THE TRIAL COURT DECLARED A MISTRIAL ON ROISUM'S UNDERTAKING
TO OBEY THE BOARD'S ORDER AND SEEK RELEASE ON HABEAS CORPUS.  ROISUM
SUBSEQUENTLY FAILED TO COMPLY, APPARENTLY BECAUSE OF TRANSPORTATION
DIFFICULTIES, BUT FINALLY REPORTED TO CAMP ON MAY 23, 1944, AS
DIRECTED.  HE REMAINED IN CAMP FOR FIVE DAYS, LEFT ON A WEEK-END PASS,
AND NEVER RETURNED. 

UPON TRIAL ROISUM MADE NO EFFORT TO INTRODUCE NEW EVIDENCE SHOWING
THE NATURE OF HIS DUTIES AS A MINISTER.  HE DID REQUEST THE COURT TO
CHARGE THAT IF THE DECISION OF THE LOCAL BOARD ERRONEOUSLY CLASSIFIED
HIM IN IV-E THE ORDER WAS VOID AND AFTER CONVICTION HE MOVED FOR A
JUDGMENT OF ACQUITTAL OR A NEW TRIAL ON THE GROUND THAT THE EVIDENCE IN
HIS SELECTIVE SERVICE FILE SHOWED THAT THE CLASSIFICATION OF THE BOARD
WAS ARBITRARY AND CAPRICIOUS.  THE TRIAL JUDGE EXAMINED THE FILE AND
CONCLUDED THAT THERE WAS NO GROUND TO SUPPORT ROISUM'S MOTION. 

PETITIONERS ARE ENTITLED TO RAISE THE QUESTION OF THE VALIDITY OF
THEIR SELECTIVE SERVICE CLASSIFICATIONS IN THIS PROCEEDING.  THEY HAVE
EXHAUSTED THEIR REMEDIES IN THE SELECTIVE SERVICE PROCESS, AND WHATEVER
THEIR POSITION MIGHT BE IN ATTEMPTING TO RAISE THE QUESTION BY WRITS OF
HABEAS CORPUS AGAINST THE CAMP CUSTODIAN, THEY ARE ENTITLED TO RAISE
THE ISSUE AS A DEFENSE IN A CRIMINAL PROSECUTION FOR ABSENCE WITHOUT
LEAVE.  GIBSON V. UNITED STATES, 329 U.S. 338, 351-360.  THE SCOPE OF
REVIEW TO WHICH PETITIONERS ARE ENTITLED, HOWEVER, IS LIMITED; AS WE
SAID IN ESTEP V. UNITED STATES, 327 U.S. 114, 122-23:  "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."  COMPARE
EAGLES V. UNITED STATES EX REL. SAMUELS, 329 U.S. 304, AND EAGLES V.
UNITED STATES EX REL. HOROWITZ, 329 U.S. 317, IN WHICH A SIMILAR SCOPE
OF REVIEW IS ENUNCIATED IN HABEAS CORPUS PROCEEDINGS BY REGISTRANTS
CLAIMING TO HAVE BEEN IMPROPERLY INDUCTED. 

"REGULAR OR DULY ORDAINED MINISTERS OF RELIGION" SHALL BE EXEMPT FROM
TRAINING AND SERVICE UNDER THE ACT, AND SEC. 622.44 OF SELECTIVE
SERVICE REGULATIONS DEFINES THE TERMS "REGULAR MINISTER OF RELIGION"
AND "DULY ORDAINED MINISTER OF RELIGION."  FN1  IN ORDER TO AID THE
LOCAL BOARDS IN APPLYING THE REGULATION, THE DIRECTOR OF SELECTIVE
SERVICE ISSUED OPINION NO. 14(AMENDED) ON NOVEMBER 2, 1942,  FN2  WHICH
DESCRIBED THE TESTS TO BE APPLIED IN DETERMINING WHETHER JEHOVAH'S
WITNESSES WERE ENTITLED TO EXEMPTION AS MINISTERS, REGULAR OR
ORDAINED.  THE OPINION STATED THAT WITNESSES WHO WERE MEMBERS OF THE
BETHEL FAMILY (PRODUCERS OF RELIGIOUS SUPPLIES) OR PIONEERS, DEVOTING
ALL OR SUBSTANTIALLY ALL OF THEIR TIME TO THE WORK OF TEACHING THE
TENETS OF THEIR RELIGION, GENERALLY WERE EXEMPT, AND APPENDED A LIST OF
CERTAIN MEMBERS OF THE BETHEL FAMILY AND PIONEERS WHO WERE ENTITLED TO
THIS EXEMPTION.  NONE OF THESE WITNESSES WERE ON THE LIST.  THE OPINION
STATED THAT MEMBERS OF THE BETHEL FAMILY AND PIONEERS WHOSE NAMES DID
NOT APPEAR ON THE LIST, AS WELL AS ALL OTHER WITNESSES HOLDING OFFICIAL
TITLES IN THE ORGANIZATION, MUST BE CLASSIFIED BY THE BOARDS ACCORDING
TO THE FACTS IN EACH CASE.  THE DETERMINING CRITERIA WERE STATED TO BE
"WHETHER OR NOT THEY DEVOTE THEIR LIVES IN THE FURTHERANCE OF THE
BELIEFS OF JEHOVAH'S WITNESSES, WHETHER OR NOT THEY PERFORM FUNCTIONS
WHICH ARE NORMALLY PERFORMED BY REGULAR OR DULY ORDAINED MINISTERS OF
OTHER RELIGIONS, AND, FINALLY, WHETHER OR NOT THEY ARE REGARDED BY
OTHER JEHOVAH'S WITNESSES IN THE SAME MANNER IN WHICH REGULAR OR DULY
ORDAINED MINISTERS OF OTHER RELIGIONS ARE ORDINARILY REGARDED."  THE
OPINION FURTHER STATED THAT THE LOCAL BOARD SHOULD PLACE IN THE
REGISTRANT'S FILE "A RECORD OF ALL FACTS ENTERING INTO ITS
DETERMINATION FOR THE REASON THAT IT IS LEGALLY NECESSARY THAT THE
RECORD SHOW THE BASIS OF THE LOCAL BOARD'S DECISION." 

IT WILL BE OBSERVED THAT SEC. 622.44 OF THE REGULATION MAKES
"ORDINATION" THE ONLY PRACTICAL DIFFERENCE BETWEEN A "REGULAR" AND A
"DULY ORDAINED MINISTER."  THIS SEEMS CONSISTENT WITH SEC. 5 OF THE
ACT.  WE ARE OF THE VIEW THAT THE REGULATION CONFORMS TO THE ACT AND
THAT IT IS VALID UNDER THE RULE-MAKING POWER CONFERRED BY SEC. 10(A). 
WE AGREE, ALSO, THAT OPINION 14 FURNISHES A PROPER GUIDE TO THE
INTERPRETATION OF THE ACT AND REGULATIONS. 

OUR EXAMINATION OF THE FACTS, AS STATED HEREIN IN EACH CASE,
CONVINCES US THAT THE BOARD HAD ADEQUATE BASIS TO DENY TO COX, THOMPSON
AND ROISUM CLASSIFICATION AS MINISTERS, REGULAR OR ORDAINED.  WE
CONFINE OURSELVES TO THE FACTS APPEARING IN THE SELECTIVE SERVICE FILES
OF THE THREE PETITIONERS, ALTHOUGH THE ONLY DOCUMENTS DEALING WITH THE
PETITIONERS' STATUS AS MINISTERS WERE SUBMITTED BY PETITIONERS
THEMSELVES.  THE DOCUMENTS SHOW THAT THOMPSON AND ROISUM SPENT ONLY A
SMALL PORTION OF THEIR TIME IN RELIGIOUS ACTIVITIES, AND THIS FACT
ALONE, WITHOUT A FAR STRONGER SHOWING THAN IS CONTAINED IN EITHER OF
THE FILES OF THE REGISTRANTS' LEADERSHIP IN CHURCH ACTIVITIES AND THE
DEDICATION OF THEIR LIVES TO THE FURTHERANCE OF RELIGIOUS WORK, IS
SUFFICIENT FOR THE BOARD TO DENY THEM A MINISTER'S CLASSIFICATION.  AS
FOR COX, THE DOCUMENTS SUGGEST BUT DO NOT PROVE THAT COX SPENT FULL
TIME AS A "PIONEER" BETWEEN OCTOBER 1942 AND MAY 1944 WHEN HE WAS
ORDERED TO CAMP.  AS HE MADE CLAIM OF CONSCIENTIOUS OBJECTOR
CLASSIFICATION ONLY AFTER HE WAS RECLASSIFIED I-A FROM IV-F AND STILL
LATER CLAIMED MINISTERIAL EXEMPTION, THE BOARD WAS JUSTIFIED IN
DECIDING FROM THE AVAILABLE FACTS THAT COX HAD NOT ESTABLISHED HIS
MINISTERIAL STATUS.  THE BOARD MIGHT HAVE REASONABLY HELD THAT NOTHING
LESS THAN DEFINITE EVIDENCE OF HIS FULL DEVOTION OF HIS AVAILABLE TIME
TO RELIGIOUS LEADERSHIP WOULD SUFFICE UNDER THESE CIRCUMSTANCES.  FN3
NOR MAY COX AND THOMPSON COMPLAIN THAT THE DISTRICT COURT FAILED TO
PASS ON THE VALIDITY OF THE CLASSIFICATION ORDERS.  IF THERE WAS ERROR
OF THE DISTRICT COURT IN FAILING TO EXAMINE THE FILES OF THE BOARD TO
DETERMINE WHETHER OR NOT THERE WAS BASIS FOR THEIR CLASSIFICATION, IT
WAS CURED IN THE CIRCUIT COURT OF APPEALS BY THAT COURT'S EXAMINATION. 

PETITIONERS DO NOT LIMIT THEMSELVES TO THE CLAIM THAT DIRECTED
VERDICTS SHOULD HAVE BEEN ENTERED IN THEIR FAVOR BECAUSE OF THE
INVALIDITY OF THEIR CLASSIFICATIONS AS A MATTER OF LAW; THEY CLAIM THAT
THE ISSUE SHOULD HAVE BEEN SUBMITTED WITH APPROPRIATE INSTRUCTIONS TO
THE JURY.  FN4  THE CHARGE REQUESTED BY ROISUM THAT HE BE ACQUITTED IF
THE JURY FOUND THAT HE WAS "ERRONEOUSLY" CLASSIFIED WAS IMPROPER.  IN
ESTEP V. UNITED STATES IT WAS DISTINCTLY STATED THAT MERE ERROR IN A
CLASSIFICATION WAS INSUFFICIENT GROUNDS FOR ATTACK.  COX AND THOMPSON
REQUESTED CHARGES UNDER WHICH THE JURY WOULD DETERMINE "WHETHER OR NOT
THE DEFENDANT IS A MINISTER OF RELIGION" WITHOUT CONSIDERING THE ACTION
OF THE LOCAL BOARD.  WE HOLD THAT SUCH A CHARGE WOULD ALSO HAVE BEEN
IMPROPER.  WHETHER THERE WAS "NO BASIS IN FACT" FOR THE CLASSIFICATION
IS NOT A QUESTION TO BE DETERMINED BY THE JURY ON AN INDEPENDENT
CONSIDERATION OF THE EVIDENCE.  THE CONCEPT OF A JURY PASSING
INDEPENDENTLY ON AN ISSUE PREVIOUSLY DETERMINED BY AN ADMINISTRATIVE
BODY OR REVIEWING THE ACTION OF AN ADMINISTRATIVE BODY IS CONTRARY TO
SETTLED FEDERAL ADMINISTRATIVE PRACTICE; THE CONSTITUTIONAL RIGHT TO
JURY TRIAL DOES NOT INCLUDE THE RIGHT TO HAVE A JURY PASS ON THE
VALIDITY OF AN ADMINISTRATIVE ORDER.  YAKUS V. UNITED STATES, 321 U.S.
414.  ALTHOUGH WE HELD IN ESTEP THAT CONGRESS DID NOT INTEND TO CUT OFF
ALL JUDICIAL REVIEW OF A SELECTIVE SERVICE ORDER, PETITIONERS HAVE FULL
PROTECTION BY HAVING THE ISSUE SUBMITTED TO THE TRIAL JUDGE AND THE
REVIEWING COURTS TO DETERMINE WHETHER THERE WAS ANY SUBSTANTIAL BASIS
FOR THE CLASSIFICATION ORDER.  WHEN THE JUDGE DETERMINES THAT THERE WAS
A BASIS IN FACT TO SUPPORT CLASSIFICATION, THE ISSUE NEED NOT AND
SHOULD NOT BE SUBMITTED TO THE JURY.  PERHAPS A COURT OR JURY WOULD
REACH A DIFFERENT RESULT FROM THE EVIDENCE BUT AS THE DETERMINATION OF
CLASSIFICATION IS FOR SELECTIVE SERVICE, ITS ORDER IS REVIEWABLE "ONLY
IF THERE IS NO BASIS IN FACT FOR THE CLASSIFICATION."  ESTEP V. UNITED
STATES, SUPRA, 122.  CONSEQUENTLY WHEN A COURT FINDS A BASIS IN THE
FILE FOR THE BOARD'S ACTION THAT ACTION IS CONCLUSIVE.  THE QUESTION OF
THE PREPONDERANCE OF EVIDENCE IS NOT FOR TRIAL ANEW.  IT IS NOT
RELEVANT TO THE ISSUE OF THE GUILT OF THE ACCUSED FOR DISOBEDIENCE OF
ORDERS.  UPON THE JUDGE'S DETERMINATION THAT THE FILE SUPPORTS THE
BOARD, NOTHING IN THE FILE IS PERTINENT TO ANY ISSUE PROPER FOR JURY
CONSIDERATION.  FN5 

PETITIONERS ALSO CLAIM THAT THEY WERE DENIED THE RIGHT TO INTRODUCE
NEW EVIDENCE AT THE TRIAL TO SUPPORT THEIR CONTENTION THAT THE ORDERS
WERE INVALID.  ROISUM MADE NO ATTEMPT TO INTRODUCE SUCH EVIDENCE, COX
WAS IN FACT ALLOWED TO TESTIFY AS TO HIS DUTIES AS A MINISTER, AND ONLY
THOMPSON WAS DENIED THE OPPORTUNITY SO TO TESTIFY.  THOMPSON DID NOT
SPECIFY THIS POINT AS ERROR IN HIS APPEAL TO THE CIRCUIT COURT OF
APPEALS.  PASSING THE POSSIBLE WAIVER ON THE PART OF THOMPSON BY
FAILING TO ARGUE THIS POINT BELOW, WE HOLD THAT HIS CONTENTION IS
WITHOUT MERIT.  PETITIONER CLAIMS THAT HIS STATUS AS A MINISTER IS A
"JURISDICTIONAL FACT" WHICH MAY BE DETERMINED DE NOVO (REEXAMINATION OF
THE RECORD OF THE FORMER HEARING WITH RIGHT TO ADDUCE ADDITIONAL
EVIDENCE) IN A CRIMINAL TRIAL, AND RELIES ON NG FUNG HO V. WHITE, 259
U.S. 276, WHERE WE HELD THAT AN ALLEGED ALIEN WAS ENTITLED TO A
JUDICIAL TRIAL ON THE ISSUE OF ALIENAGE IN HABEAS CORPUS PROCEEDINGS. 
BUT THAT CASE IS DIFFERENT FROM THIS.  THE ALIEN, THERE, CLAIMED
AMERICAN CITIZENSHIP.  AS SUCH, THIS COURT SAID, HE HAD A RIGHT TO A
JUDICIAL HEARING OF HIS CLAIM AS A MATTER OF DUE PROCESS.  THIS HE
COULD NOT GET BEFORE THE COMMISSIONER OF IMMIGRATION.  THEREFORE, SINCE
THE DEPORTATION OF A CITIZEN MAY INVOLVE LOSS "OF ALL THAT MAKES LIFE
WORTH LIVING," THIS COURT DECIDED THAT THE "JURISDICTION" OF THE
COMMISSIONER TO TRY THE ALLEGED ALIEN COULD BE TESTED BY HABEAS
CORPUS.  P. 284.  THAT GAVE THE ALLEGED ALIEN A JUDICIAL HEARING.  IN
THESE CASES JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IS ALLOWED IN THE
CRIMINAL TRIAL.  THIS ASSURES JUDICIAL CONSIDERATION OF A REGISTRANT'S
RIGHTS.  PETITIONERS' OBJECTION ON THIS POINT IS IN ESSENCE THAT THE
REVIEW IS LIMITED TO EVIDENCE THAT APPEARED IN THE ADMINISTRATIVE
PROCEEDING.  IT SEEMS TO US THAT IT IS QUITE IN ACCORD WITH JUSTICE TO
LIMIT THE EVIDENCE AS TO STATUS IN THE CRIMINAL TRIAL ON REVIEW OF
ADMINISTRATIVE ACTION TO THAT UPON WHICH THE BOARD ACTED.  FN6  AS WE
HAVE SAID ELSEWHERE THE BOARD RECORDS WERE MADE BY PETITIONERS.  IT WAS
OPEN TO THEM THERE TO FURNISH FULL INFORMATION AS TO THEIR ACTIVITIES. 
IT IS THAT RECORD UPON WHICH THE BOARD ACTED AND UPON WHICH THE
REGISTRANTS' VIOLATION OF ORDERS MUST BE PREDICATED. 

WE PERCEIVE NO ERROR TO PETITIONERS' PREJUDICE IN THE RECORDS. 
AFFIRMED. 

FN1  54 STAT. 885, 888: 

"SEC. 5.  ... 

"(D)  REGULAR OR DULY ORDAINED MINISTERS OF RELIGION, AND STUDENTS
WHO ARE PREPARING FOR THE MINISTRY IN THEOLOGICAL OR DIVINITY SCHOOLS
RECOGNIZED AS SUCH FOR MORE THAN ONE YEAR PRIOR TO THE DATE OF
ENACTMENT OF THIS ACT, SHALL BE EXEMPT FROM TRAINING AND SERVICE (BUT
NOT FROM REGISTRATION) UNDER THIS ACT." 

SELECTIVE SERVICE REGULATIONS, 32 C.F.R., 1941 SUPP.: 

STUDENT.  (A)  IN CLASS IV-D SHALL BE PLACED ANY REGISTRANT WHO IS A
REGULAR OR DULY ORDAINED MINISTER OF RELIGION OR WHO IS A STUDENT
PREPARING FOR THE MINISTRY IN A THEOLOGICAL OR DIVINITY SCHOOL WHICH
HAS BEEN RECOGNIZED AS SUCH FOR MORE THAN 1 YEAR PRIOR TO THE DATE OF
ENACTMENT OF THE SELECTIVE TRAINING AND SERVICE ACT (SEPTEMBER 16,
1940). 

"(B)  A 'REGULAR MINISTER OF RELIGION' IS A MAN WHO CUSTOMARILY
PREACHES AND TEACHES THE PRINCIPLES OF RELIGION OF A RECOGNIZED CHURCH,
RELIGIOUS SECT, OR RELIGIOUS 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 MINISTER. 

"(C)  A 'DULY ORDAINED MINISTER OF RELIGION' IS A MAN WHO HAS BEEN
ORDAINED IN ACCORDANCE WITH THE CEREMONIAL RITUAL OR DISCIPLINE OF A
RECOGNIZED CHURCH, RELIGIOUS SECT, OR RELIGIOUS ORGANIZATION, TO TEACH
AND PREACH ITS DOCTRINES AND TO ADMINISTER ITS RITES AND CEREMONIES IN
PUBLIC WORSHIP; AND WHO CUSTOMARILY PERFORMS THOSE DUTIES." 

FN2  OPINION 14(AMENDED) IS ON FILE AT THE OFFICE OF SELECTIVE
SERVICE RECORDS, WASHINGTON, D.C. 

FN3  FOR A SIMILAR CONCLUSION UNDER THE SAME SUBDIVISION OF THE
STATUTE, GIVING EXEMPTION TO REGULAR AND DULY ORDAINED MINISTERS OF
RELIGION AND STUDENTS, SEE EAGLES V. SAMUELS, 329 U.S. 304, 316-17: 

"NOR CAN WE SAY THERE WAS NO EVIDENCE TO SUPPORT THE FINAL
CLASSIFICATION MADE BY THE BOARD OF APPEAL.  SAMUELS' STATEMENT THAT HE
WAS BEST FITTED TO BE A HEBREW SCHOOL TEACHER AND SPIRITUAL LEADER, THE
TWO-YEAR INTERRUPTION IN HIS EDUCATION, HIS RETURN TO THE DAY SESSION
OF THE SEMINARY IN THE MONTH WHEN HIS SELECTIVE SERVICE QUESTIONNAIRE
WAS RETURNED, AND THE FACT THAT THE SEMINARY IN QUESTION WAS APPARENTLY
NOT PREPARING MEN EXCLUSIVELY FOR THE RABBINATE MAKE QUESTIONABLE HIS
CLAIM THAT HE WAS PREPARING IN GOOD FAITH FOR THE RABBINATE.  A
REGISTRANT MIGHT SEEK A THEOLOGICAL SCHOOL AS A REFUGE FOR THE DURATION
OF THE WAR.  CONGRESS DID NOT CREATE THE EXEMPTION IN SEC. 5(D) FOR
HIM.  THERE WAS SOME EVIDENCE THAT THIS WAS SAMUELS' PLAN; AND THAT
EVIDENCE, COUPLED WITH HIS DEMEANOR AND ATTITUDE, MIGHT HAVE SEEMED
MORE PERSUASIVE TO THE BOARDS THAN IT DOES IN THE COLD RECORD.  OUR
INQUIRY IS ENDED WHEN WE ARE UNABLE TO SAY THAT THE BOARD FLOUTED THE
COMMAND OF CONGRESS IN DENYING SAMUELS THE EXEMPTION." 

FN4  THE CIRCUIT COURT OF APPEALS ON APRIL 5, 1946, ORDERED THE
JUDGMENTS IN THESE CASES REVERSED ON THE GROUND THAT THE JURY SHOULD
HAVE PASSED ON PETITIONERS' CLAIMS.  UPON REHEARING THE OPINION WAS
WITHDRAWN, AND ON OCTOBER 4 THE COURT HANDED DOWN AN OPINION AFFIRMING
THE JUDGMENTS.  157 F.2D 787.  IN SMITH V. UNITED STATES, 157 F.2D 176,
THE CIRCUIT COURT OF APPEALS HELD THAT THE SUBMISSION OF THE ISSUE OF
CLASSIFICATION TO THE JURY CONSTITUTED REVERSIBLE ERROR.  BUT CF.
UNITED STATES EX REL. KULICK V. KENNEDY, 157 F.2D 811. 

FN5  FOR AN ANALOGOUS POWER OF A JUDGE AS TO ADMISSIBILITY, SEE
WIGMORE (3D ED.)  SEC.  2550; STEELE V. UNITED STATES NO. 2, 267 U.S.
505, 510-11; FORD V. UNITED STATES, 273 U.S. 593, 605; DOE DEM. 
JENKINS V. DAVIES, 10 AD. & E.N.S. 314, 323-24; PHIPSON, EVIDENCE (8TH
ED.), P. 9. 

FN6  SEE GOFF V. UNITED STATES, 135 F.2D 610, AND UNITED STATES V.
MESSERSMITH, 138 F.2D 599. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

I AGREE WITH THE MAJORITY OF THE COURT THAT WE CAN REVERSE THE
JUDGMENTS BELOW ONLY IF THERE WAS NO BASIS IN FACT FOR THE
CLASSIFICATION.  I ALSO AGREE THAT THAT QUESTION IS PROPERLY ONE OF LAW
FOR THE COURT.  TO THAT EXTENT I JOIN IN THE OPINION OF THE COURT.  BUT
I DO NOT AGREE THAT THE LOCAL BOARDS HAD ADEQUATE BASIS TO DENY TO
PETITIONERS THE CLASSIFICATION OF MINISTERS.  MY DISAGREEMENT IS
REQUIRED BY WHAT I CONCEIVE TO BE THE MANDATE OF CONGRESS, THAT ALL WHO
PREACH AND TEACH THEIR FAITH AND ARE RECOGNIZED AS MINISTERS WITHIN
THEIR RELIGIOUS GROUP ARE ENTITLED TO THE STATUTORY EXEMPTION. 

THE EXEMPTION RUNS TO "REGULAR OR DULY ORDAINED MINISTERS OF
RELIGION."  THERE IS NO SUGGESTION THAT ONLY MINISTERS OF THE MORE
ORTHODOX OR CONVENTIONAL FAITHS ARE INCLUDED.  NOR DID CONGRESS MAKE
THE AVAILABILITY OF THE EXEMPTION TURN ON THE AMOUNT OF TIME DEVOTED TO
RELIGIOUS ACTIVITY.  IT EXEMPTED ALL REGULAR OR DULY ORDAINED
MINISTERS.  HENCE, I THINK THE SELECTIVE SERVICE REGULATIONS PROPERLY
REQUIRED THAT A "REGULAR" MINISTER, AS DISTINGUISHED FROM A "DULY
ORDAINED" MINISTER,  FN1  ONLY BE ONE WHO "CUSTOMARILY PREACHES AND
TEACHES THE PRINCIPLES OF RELIGION OF A RECOGNIZED CHURCH, RELIGIOUS
BEEN FORMALLY ORDAINED AS A MINISTER OF RELIGION; AND WHO IS RECOGNIZED
BY SUCH CHURCH, SECT, OR ORGANIZATION AS A MINISTER."  32 C.F.R. CUM.
SUPP. SEC. 622.44(B). 

IT IS NOT DISPUTED THAT JEHOVAH'S WITNESSES CONSTITUTE A RELIGIOUS
DOOR EVANGELISM IS AS MUCH RELIGIOUS ACTIVITY AS "WORSHIP IN THE
CHURCHES AND PREACHING FROM THE PULPITS."  MURDOCK V. PENNSYLVANIA, 319
U.S. 105, 109.  THE SELECTIVE SERVICE FILES OF THESE PETITIONERS
ESTABLISH, I THINK, THEIR STATUS AS MINISTERS OF THAT SECT.  THEIR
CLAIMS TO THAT STATUS ARE SUPPORTED BY AFFIDAVITS OF THEIR IMMEDIATE
SUPERIORS IN THE LOCAL GROUP AND BY THEIR NATIONAL HEADQUARTERS.  AND
EACH OF THEM WAS SPENDING SUBSTANTIAL TIME IN THE RELIGIOUS ACTIVITY OF
PREACHING THEIR FAITH.  IF A PERSON IS IN FACT ENGAGING IN THE
MINISTRY, HIS MOTIVES FOR DOING SO ARE QUITE IMMATERIAL.  FN2    TO
DENY THESE CLAIMANTS THEIR STATUTORY EXEMPTION IS TO DISREGARD THESE
FACTS OR TO ADOPT A DEFINITION OF MINISTER WHICH CONTRACTS THE
CLASSIFICATION PROVIDED BY CONGRESS. 

THE CLASSIFICATION AS A MINISTER MAY NOT BE DENIED BECAUSE THE
REGISTRANT DEVOTES BUT A PART OF HIS TIME TO RELIGIOUS ACTIVITY.  IT IS
NOT UNCOMMON FOR ORDAINED MINISTERS OF MORE ORTHODOX RELIGIONS TO WORK
A FULL DAY IN SECULAR OCCUPATIONS, ESPECIALLY IN RURAL COMMUNITIES. 
THEY ARE NONETHELESS MINISTERS.  THEIR STATUS IS DETERMINED NOT BY THE
HOURS DEVOTED TO THEIR PARISH BUT BY THEIR POSITION AS TEACHERS OF
THEIR FAITH.  IT SHOULD BE NO DIFFERENT WHEN A RELIGIOUS ORGANIZATION
SUCH AS JEHOVAH'S WITNESSES HAS PART-TIME MINISTERS.  FINANCIAL NEEDS
MAY REQUIRE THAT THEY DEVOTE A SUBSTANTIAL PORTION OF THEIR TIME TO LAY
OCCUPATIONS.  AND THE USE OF PART-TIME MINISTERS MAY BE DICTATED BY A
DESIRE TO DISSEMINATE MORE WIDELY THE RELIGIOUS VIEWS OF THE SECT. 
WHATEVER THE REASON, THESE PART-TIME MINISTERS ARE VEHICLES FOR
PROPAGATION OF THE FAITH; BY PRACTICAL AS WELL AS HISTORICAL STANDARDS
THEY ARE THE APOSTLES WHO PERFORM THE MINISTER'S FUNCTION FOR THIS
GROUP. 

FN1  A "DULY ORDAINED" MINISTER IS DEFINED AS ONE "WHO HAS BEEN
ORDAINED IN ACCORDANCE WITH THE CEREMONIAL RITUAL OR DISCIPLINE OF A
RECOGNIZED CHURCH, RELIGIOUS SECT, OR RELIGIOUS ORGANIZATION, TO TEACH
AND PREACH ITS DOCTRINES AND TO ADMINISTER ITS RITES AND CEREMONIES IN
PUBLIC WORSHIP; AND WHO CUSTOMARILY PERFORMS THOSE DUTIES."  32 C.F.R.
CUM. SUPP. SEC. 622.44(C). 

THE DISTINCTION BETWEEN "REGULAR" AND "DULY ORDAINED" MINISTERS IS, I
THINK, MORE THAN THE ORDINATION OF THE LATTER.  THE "DULY ORDAINED"
MINISTER PERFORMS ALL THE CUSTOMARY FUNCTIONS OF A MINISTER OF A
CHURCH.  THE CONCEPT OF "REGULAR" MINISTER MORE NEARLY FITS THOSE WHO,
LIKE JEHOVAH'S WITNESSES, FOLLOW LESS ORTHODOX OR CONVENTIONAL
PRACTICES. 

FN2  EAGLES V. SAMUELS, 329 U.S. 304, IS NOT CONTROLLING HERE.  IT
INVOLVED THE EXEMPTION GIVEN STUDENTS PREPARING FOR THE MINISTRY.  MERE
PRESENCE IN A SCHOOL NOT EXCLUSIVELY CONFINED TO PREPARING MEN FOR THE
RABBINATE DID NOT ENTITLE THE STUDENT TO EXEMPTION. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE RUTLEDGE CONCURS,
DISSENTING. 

WITH CERTAIN LIMITATIONS, THIS COURT HAS RECOGNIZED THAT A PERSON ON
TRIAL FOR AN ALLEGED VIOLATION OF THE SELECTIVE TRAINING AND SERVICE
ACT HAS THE RIGHT TO PROVE THAT THE PROSECUTION IS BASED UPON AN
INVALID DRAFT BOARD CLASSIFICATION.  BUT CARE MUST BE TAKEN TO PRECLUDE
THE REVIEW OF THE CLASSIFICATION BY STANDARDS WHICH ALLOW THE JUDGE TO
DO LITTLE MORE THAN GIVE AUTOMATIC APPROVAL TO THE DRAFT BOARD'S
ACTION.  OTHERWISE THE RIGHT TO PROVE THE INVALIDITY OF THE
CLASSIFICATION IS DRAINED OF MUCH OF ITS SUBSTANCE AND THE TRIAL
BECOMES A MERE FORMALITY.  SUCH EMPTY PROCEDURE HAS SERIOUS
CONNOTATIONS, ESPECIALLY WHEN WE DEAL WITH THOSE WHO CLAIM THEY HAVE
BEEN ILLEGALLY DENIED EXEMPTIONS RELATING TO CONSCIENTIOUS BELIEFS OR
MINISTERIAL STATUS. 

SPECIFICALLY, I OBJECT TO THE STANDARD OF REVIEW WHEREBY THE DRAFT
BOARD CLASSIFICATION IS TO BE SUSTAINED UNLESS THERE IS NO EVIDENCE TO
SUPPORT IT.  LESS THAN A SUBSTANTIAL AMOUNT OF EVIDENCE IS THUS
PERMITTED TO LEGALIZE THE CLASSIFICATION.  WHATEVER MERIT THIS STANDARD
MAY HAVE IN OTHER SITUATIONS, I QUESTION THE PROPRIETY OF ITS USE IN
THIS PARTICULAR SETTING.  THIS DIFFERS FROM AN ORDINARY CIVIL
PROCEEDING TO REVIEW A NON-PUNITIVE ORDER OF AN ADMINISTRATIVE AGENCY,
AN ORDER WHICH IS UNRELATED TO FREEDOM OF CONSCIENCE OR RELIGION.  THIS
IS A CRIMINAL TRIAL.  IT INVOLVES ADMINISTRATIVE ACTION DENYING THAT
THE DEFENDANT HAS CONSCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST WAR, OR
THAT HE IS A MINISTER.  HIS LIBERTY AND HIS REPUTATION DEPEND UPON THE
VALIDITY OF THAT ACTION.  IF THE DRAFT BOARD CLASSIFICATION IS HELD
VALID, HE WILL BE IMPRISONED OR FINED AND WILL BE BRANDED AS A VIOLATOR
OF THE NATION'S LAW; IF THAT CLASSIFICATION IS UNLAWFUL, HE IS A FREE
MAN.  MOREOVER, HE HAS HAD NO PREVIOUS OPPORTUNITY TO SECURE A JUDICIAL
TEST OF THIS ADMINISTRATIVE ACTION, NO CHANCE TO PROVE THAT HE WAS
DENIED HIS STATUTORY RIGHTS.  EVERYTHING IS CONCENTRATED IN THE
CRIMINAL PROCEEDING. 

THESE STAKES ARE TOO HIGH, IN MY OPINION, TO PERMIT AN INAPPRECIABLE
AMOUNT OF SUPPORTING EVIDENCE TO SANCTION A DRAFT BOARD
CLASSIFICATION.  SINCE GUILT OR INNOCENCE CENTERS ON THAT
CLASSIFICATION, ITS VALIDITY SHOULD BE ESTABLISHED BY SOMETHING MORE
FORCEFUL THAN A WISP OF EVIDENCE OR A SPECULATIVE INFERENCE.  OTHERWISE
THE DEFENDANT FACES AN ALMOST IMPOSSIBLE TASK IN ATTEMPTING TO PROVE
THE ILLEGALITY OF THE CLASSIFICATION, THE PRESENCE OF A MERE FRAGMENT
OF CONTRARY EVIDENCE DOOMING HIS EFFORTS.  AND SUCH A SCANT FOUNDATION
SHOULD NOT JUSTIFY BRUSHING ASIDE BONA FIDE CLAIMS OF CONSCIENTIOUS
BELIEF OR MINISTERIAL STATUS.  IF RESPECT FOR HUMAN DIGNITY MEANS
ANYTHING, ONLY EVIDENCE OF A SUBSTANTIAL NATURE WARRANTS APPROVAL OF
THE DRAFT BOARD CLASSIFICATION IN A CRIMINAL PROCEEDING. 

IT IS NEEDLESS TO ADD THAT, FROM MY POINT OF VIEW, THE PROOF IN THESE
CASES FALLS FAR SHORT OF JUSTIFYING THE CONVICTION OF THE PETITIONERS. 
THERE IS NO SUGGESTION IN THE RECORD THAT THEY WERE OTHER THAN BONA
FIDE MINISTERS.  AND THE MERE FACT THAT THEY SPENT LESS THAN FULL TIME
IN MINISTERIAL ACTIVITIES AFFORDS NO REASONABLE BASIS FOR IMPLYING A
NON-MINISTERIAL STATUS.  CONGRESS MUST HAVE INTENDED TO EXEMPT FROM
STATUTORY DUTIES THOSE MINISTERS WHO ARE FORCED TO LABOR AT SECULAR
JOBS TO EARN A LIVING AS WELL AS THOSE WHO PREACH TO MORE OPULENT
CONGREGATIONS.  ANY OTHER VIEW WOULD ASCRIBE TO CONGRESS AN INTENTION
TO DISCRIMINATE AMONG RELIGIOUS DENOMINATIONS AND MINISTERS ON THE
BASIS OF WEALTH AND NECESSITY FOR SECULAR WORK, AN INTENTION THAT I AM
UNWILLING TO IMPUTE.  ACCORDINGLY, IN THE ABSENCE OF MORE CONVINCING
EVIDENCE, I CANNOT AGREE THAT THE DRAFT BOARD CLASSIFICATIONS
UNDERLYING PETITIONERS' CONVICTIONS ARE VALID. 
..END :




















LILLIE V. THOMPSON, 332 U.S. 459 


NO. 206.  DECIDED NOVEMBER 24, 1947.  - 162 F.2D 716, REVERSED. 


A COMPLAINT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT ALLEGED THAT
THE HOURS, LOCATION AND CIRCUMSTANCES OF THE COMPLAINANT'S WORK CREATED
A LIKELIHOOD THAT SHE WOULD SUFFER INJURIES THROUGH THE CRIMINAL ACTS
OF A PERSON NOT AN EMPLOYEE; THAT THE RAILROAD FAILED TO EXERCISE ITS
DUTY OF TAKING REASONABLE MEASURES TO PROTECT HER AGAINST THE
FORESEEABLE DANGER, AND THAT SHE SUFFERED INJURIES AS A RESULT OF THE
RAILROAD'S FAILURE TO TAKE SUCH MEASURES.  HELD: 

1.  THE COMPLAINT STATED A CAUSE OF ACTION UNDER THE ACT.  PP. 460
461. 

2.  THAT THE DANGER WAS FROM CRIMINAL MISCONDUCT BY AN OUTSIDER IS
IRRELEVANT.  IF THAT DANGER WAS FORESEEABLE, THE RAILROAD HAD A DUTY TO
MAKE REASONABLE PROVISION AGAINST IT.  PP. 461-462. 

LILLIE V. THOMPSON, TRUSTEE. 

PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE SIXTH CIRCUIT. 

PETITIONER'S SUIT AGAINST A RAILROAD FOR DAMAGES UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT WAS DISMISSED BY THE DISTRICT COURT FOR
FAILURE TO STATE A CAUSE OF ACTION.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  162 F.2D 716.  THIS COURT GRANTS A PETITION FOR CERTIORARI,
REVERSES THE JUDGMENT, AND REMANDS THE CASE TO THE DISTRICT COURT, P.
462. 

PER CURIAM. 

PETITIONER SUED FOR DAMAGES UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT.  FN1  THE ESSENCE OF HER CLAIM WAS THAT SHE WAS INJURED AS A
RESULT OF THE RESPONDENT'S NEGLIGENCE IN SENDING HER TO WORK IN A PLACE
HE KNEW TO BE UNSAFE WITHOUT TAKING REASONABLE MEASURES TO PROTECT
HER. 

THE DISTRICT COURT DISMISSED THE COMPLAINT FOR FAILURE TO STATE A
CAUSE OF ACTION AND ENTERED SUMMARY JUDGMENT FOR THE RESPONDENT.  THE
CIRCUIT COURT OF APPEALS AFFIRMED WITHOUT OPINION.  162 F.2D 716. 

THERE IS THUS A SINGLE ISSUE IN THE CASE:  COULD IT BE FOUND FROM THE
FACTS ALLEGED IN THE COMPLAINT, AS SUPPLEMENTED BY ANY UNCONTROVERTED
ALLEGATIONS BY THE RESPONDENT, THAT PETITIONER'S INJURIES RESULTED AT
LEAST IN PART FROM RESPONDENT'S NEGLIGENCE?  FN2 

PETITIONER'S ALLEGATIONS MAY BE SUMMARIZED AS FOLLOWS:  RESPONDENT
REQUIRED HER, A 22-YEAR-OLD TELEGRAPH OPERATOR, TO WORK ALONE BETWEEN
11:30 P.M. AND 7:30 A.M. IN A ONE-ROOM FRAME BUILDING SITUATED IN AN
ISOLATED PART OF RESPONDENT'S RAILROAD YARDS IN MEMPHIS.  THOUGH
RESPONDENT HAD REASON TO KNOW THE YARDS WERE FREQUENTED BY DANGEROUS
CHARACTERS, HE FAILED TO EXERCISE REASONABLE CARE TO LIGHT THE BUILDING
AND ITS SURROUNDINGS OR TO GUARD OR PATROL IT IN ANY WAY.  PETITIONER'S
DUTIES WERE TO RECEIVE AND DELIVER MESSAGES TO MEN OPERATING TRAINS IN
THE YARD.  IN ORDER FOR THE TRAINMEN TO GET THE MESSAGES IT WAS
NECESSARY FOR THEM TO COME TO THE BUILDING AT IRREGULAR INTERVALS
THROUGHOUT THE NIGHT, AND IT WAS PETITIONER'S DUTY TO ADMIT THEM WHEN
THEY KNOCKED.  BECAUSE THERE WERE NO WINDOWS IN THE BUILDING'S SINGLE
DOOR OR ON THE SIDE OF THE BUILDING IN WHICH THE DOOR WAS LOCATED,
PETITIONER COULD IDENTIFY PERSONS SEEKING ENTRANCE ONLY BY UNLOCKING
AND OPENING THE DOOR.  ABOUT 1:30 A.M. ON THE NIGHT OF HER INJURY
PETITIONER RESPONDED TO A KNOCK, THINKING THAT SOME OF RESPONDENT'S
TRAINMEN WERE SEEKING ADMISSION.  SHE OPENED THE DOOR, AND BEFORE SHE
COULD CLOSE IT A MAN ENTERED AND BEAT HER WITH A LARGE PIECE OF IRON,
SERIOUSLY AND PERMANENTLY INJURING HER. 

IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT RESPONDENT ALLEGED, AND
PETITIONER DID NOT DENY, THAT THE ASSAILANT WAS NOT AN EMPLOYEE OF THE
RESPONDENT AND THAT THE ATTACK WAS CRIMINAL. 

THE DISTRICT COURT STATED, IN EXPLANATION OF ITS ACTION, THAT THERE
WOULD BE NO CAUSAL CONNECTION BETWEEN THE INJURY AND RESPONDENT'S
FAILURE TO LIGHT OR GUARD THE PREMISES, AND THAT THE LAW DOES NOT
PERMIT RECOVERY "FOR THE INTENTIONAL OR CRIMINAL ACTS" OF EITHER A
FELLOW-EMPLOYEE OR AN OUTSIDER.  FN3 

WE ARE OF THE OPINION THAT THE ALLEGATIONS IN THE COMPLAINT, IF
SUPPORTED BY EVIDENCE, WILL WARRANT SUBMISSION TO A JURY.  PETITIONER
ALLEGED IN EFFECT THAT RESPONDENT WAS AWARE OF CONDITIONS WHICH CREATED
A LIKELIHOOD THAT A YOUNG WOMAN PERFORMING THE DUTIES REQUIRED OF
PETITIONER WOULD SUFFER JUST SUCH AN INJURY AS WAS IN FACT INFLICTED
UPON HER.  THAT THE FORESEEABLE DANGER WAS FROM INTENTIONAL OR CRIMINAL
MISCONDUCT IS IRRELEVANT; RESPONDENT NONETHELESS HAD A DUTY TO MAKE
REASONABLE PROVISION AGAINST IT.  FN4  BREACH OF THAT DUTY WOULD BE
NEGLIGENCE, AND WE CANNOT SAY AS A MATTER OF LAW THAT PETITIONER'S
INJURY DID NOT RESULT AT LEAST IN PART FROM SUCH NEGLIGENCE.  THE CASES
CITED BY THE DISTRICT COURT,  FN5  WE BELIEVE, DO NOT SUPPORT THE BROAD
PROPOSITION ENUNCIATED BY IT, AND DO NOT COVER THE FACT SITUATION SET
FORTH BY THE PLEADINGS IN THIS CASE. 

CERTIORARI IS GRANTED, AND THE JUDGMENT IS REVERSED AND THE CASE
REMANDED TO THE DISTRICT COURT.  REVERSED. 

FN1  45 U.S.C. SEC. 51. 

FN2  "EVERY COMMON CARRIER BY RAILROAD  ...  SHALL BE LIABLE IN
DAMAGES TO ANY PERSON SUFFERING INJURY WHILE HE IS EMPLOYED BY SUCH
CARRIER  ...  FOR SUCH INJURY  ...  RESULTING IN WHOLE OR IN PART FROM
THE NEGLIGENCE OF ANY OF THE OFFICERS, AGENTS, OR EMPLOYEES OF SUCH
CARRIER  ...  " IBID. 

IT IS NOT QUESTIONED THAT RESPONDENT WAS ENGAGED IN INTERSTATE
COMMERCE AND THAT PETITIONER WAS INJURED WHILE EMPLOYED IN SUCH
COMMERCE. 

FN3  THE COURT CITED DAVIS V. GREEN, 260 U.S. 349(1922); ST. LOUIS
SAN FRANCISCO R. CO. V. MILLS, 271 U.S. 344(1926); ATLANTIC COAST LINE
R. CO. V. SOUTHWELL, 275 U.S. 64(1927); AND ATLANTA & CHARLOTTE AIR
LINE R. CO. V. GREEN, 279 U.S. 821(1929), REVERSING PER CURIAM 151 S.C.
1, 148 S.E. 633. 

FN4  SEE RESTATEMENT OF TORTS, SEC. 302, COMMENT N: 

"N.  THE ACTOR'S CONDUCT MAY CREATE A SITUATION WHICH AFFORDS AN
OPPORTUNITY OR TEMPTATION TO THIRD PERSONS TO COMMIT MORE SERIOUS FORMS
OF MISCONDUCTS WHICH MAY BE OF ANY OF SEVERAL KINDS.  (1) THE THIRD
PERSON MAY INTEND TO BRING ABOUT THE VERY HARM WHICH THE OTHER
SUSTAINS.  ...  THE ACTOR IS REQUIRED TO ANTICIPATE AND PROVIDE AGAINST
ALL OF THESE MISCONDUCTS UNDER THE FOLLOWING CONDITIONS IN ALL OF WHICH
IT IS IMMATERIAL TO THE ACTOR'S CIVIL LIABILITY THAT THE THIRD PERSON'S
MISCONDUCT IS OR IS NOT CRIMINAL  ...  : 

.         .         .         .         . 

"8.  WHERE HE KNOWS OF PECULIAR CONDITIONS WHICH CREATE A STRONG
LIKELIHOOD OF INTENTIONAL OR RECKLESS MISCONDUCT (SEE ILLUSTRATIONS 21
AND 22). 

"ILLUSTRATIONS: 

     .         .         .   .         . 

"21.  THE EMPLOYEES OF THE X AND Y RAILROAD COMPANY ARE ON A STRIKE. 
THEY OR THEIR SYMPATHIZERS HAVE TORN UP TRACKS, MISPLACED SWITCHES AND
OTHERWISE ATTEMPTED TO WRECK TRAINS.  A TRAIN OF THE X AND Y COMPANY IS
WRECKED BY AN UNGUARDED SWITCH SO MISPLACED.  A, A PASSENGER, AND B, A
TRAVELER UPON A HIGHWAY ADJACENT TO THE TRACK SUSTAIN HARM.  THE X AND
Y COMPANY IS LIABLE TO A AND B BECAUSE IT DID NOT GUARD THE SWITCH." 

FN5  SEE NOTE 3, SUPRA.
..END :



















PRIEBE & SONS V. UNITED STATES, 332 U.S. 407 


NO. 16.  ARGUED OCTOBER 13, 1947.  - DECIDED NOVEMBER 17, 1947.  - 106
CT. CL. 789, 65 F.SUPP.  457, REVERSED. 


1.  PURSUANT TO A PROGRAM FOR AIDING ENGLAND AND RUSSIA UNDER THE LEND
LEASE ACT OF MARCH 11, 1941, PETITIONER CONTRACTED TO SUPPLY TO THE
FEDERAL SURPLUS COMMODITIES CORPORATION A QUANTITY OF DRIED EGGS.  THE
CONTRACT SPECIFIED "MAY 18(1942) DELIVERY," WHICH DATE "SHALL BE THE
FIRST DAY OF A 10-DAY PERIOD WITHIN WHICH THE FSCC WILL ACCEPT
DELIVERY, THE PARTICULAR DAY WITHIN THE PERIOD BEING AT THE FSCC'S
OPTION"; REQUIRED PETITIONER TO HAVE THE EGGS INSPECTED AND THAT
DELIVERY BE ACCOMPANIED BY INSPECTION AND WEIGHT CERTIFICATES; AND
PROVIDED THAT "FAILURE TO HAVE SPECIFIED QUANTITIES OF DRIED EGG
PRODUCTS INSPECTED AND READY FOR DELIVERY BY THE DATE SPECIFIED IN THE
OFFER" WOULD MAKE OPERATIVE A PROVISION FOR "LIQUIDATED DAMAGES."  IT
DID NOT PROVIDE FOR NOTICE TO THE GOVERNMENT WHEN THE SHIPMENTS WERE
READY.  INSPECTION AND CERTIFICATION, THOUGH NOT COMPLETED BY MAY 18,
WERE COMPLETED PRIOR TO THE DATES DESIGNATED BY THE FSCC FOR
DELIVERIES; AND PETITIONER MADE TIMELY DELIVERIES PURSUANT TO
INSTRUCTIONS.  HELD:  THE PROVISION FOR "LIQUIDATED DAMAGES"
CONSTITUTED A PENALTY AND WAS NOT ENFORCEABLE.  PP. 408-414. 

2.  THE CONTRACT IS CONSTRUED TO MEAN THAT THE TIME FOR DELIVERY BY
PETITIONER WAS NOT MAY 18, 1942, BUT THE TIME OR TIMES CHOSEN BY THE
FSCC WITHIN THE 10-DAY PERIOD WHICH BEGAN ON MAY 18; I.E., PERFORMANCE
WAS NOT DUE UNTIL REQUEST WAS MADE AND INSTRUCTIONS GIVEN FOR
DELIVERY.  P. 410. 

3.  SINCE THE PROVISION IN QUESTION DID NOT COVER DELAYS IN
DELIVERIES, IT COULD NOT POSSIBLY BE A REASONABLE FORECAST OF JUST
COMPENSATION FOR DAMAGE CAUSED BY BREACH OF CONTRACT.  P. 412. 

4.  CONGRESS DID NOT EXPRESSLY GRANT THE POWER TO IMPOSE PENALTIES AS
SANCTIONS TO THE PROGRAM ADOPTED PURSUANT TO THE LEND-LEASE ACT; AND
THAT POWER MAY NOT BE IMPLIED.  PP. 413-414. 

PRIEBE & SONS, INC. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS DISMISSED PETITIONER'S SUIT TO RECOVER SUMS
ALLEGED TO BE DUE UPON A CONTRACT WITH THE GOVERNMENT.  106 CT. CL.
789, 65 F.SUPP.  457.  THIS COURT GRANTED CERTIORARI.  330 U.S. 815. 
REVERSED, P. 414. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, HERE ON CERTIORARI TO THE COURT OF CLAIMS, PRESENTS THE
QUESTION WHETHER A PROVISION IN A GOVERNMENT CONTRACT FOR "LIQUIDATED
DAMAGES," AS CONSTRUED AND APPLIED, SHOULD BE DENIED ENFORCEMENT ON THE
GROUND THAT IT CONSTITUTES A "PENALTY." 

SHORTLY AFTER THE ENACTMENT OF THE LEND-LEASE ACT OF MARCH 11, 1941,
55 STAT. 31, 22 U.S.C. (SUPP. V, 1946), SEC. 411 ET SEQ., THE UNITED
STATES ACTING THROUGH AGENCIES OF THE DEPARTMENT OF AGRICULTURE
EMBARKED ON A PROGRAM OF PURCHASING DRIED EGGS FOR SHIPMENT TO ENGLAND
AND RUSSIA.  PETITIONER AGREED TO FURNISH A QUANTITY OF DRIED EGGS
UNDER THAT PROGRAM TO THE FEDERAL SURPLUS COMMODITIES CORPORATION
(FSCC).  THE CONTRACT CALLED FOR "MAY 18(1942) DELIVERY" WHICH DATE,
ACCORDING TO THE CONTRACT, "SHALL BE THE FIRST DAY OF A 10-DAY PERIOD
WITHIN WHICH THE FSCC WILL ACCEPT DELIVERY, THE PARTICULAR DAY WITHIN
THE PERIOD BEING AT THE FSCC'S OPTION."  PETITIONER WAS ALSO REQUIRED
TO HAVE THE EGGS INSPECTED, DELIVERY TO BE ACCOMPANIED BY INSPECTION
AND WEIGHT CERTIFICATES. 

THE CONTRACT CONTAINED TWO PROVISIONS RESPECTING "LIQUIDATED
DAMAGES."  ONE, CONTAINED IN PARAGRAPH 9, WAS APPLICABLE TO DELAYS IN
DELIVERY.  FN1  IT HAS NO APPLICATION HERE, FOR AS WE SHALL SEE,
DELIVERIES WERE TIMELY.  THE PROVISION FOR "LIQUIDATED DAMAGES" WITH
WHICH WE ARE CONCERNED IS CONTAINED IN PARAGRAPH 7 AND IS APPLICABLE TO
A TOTALLY DIFFERENT SITUATION.  IT PROVIDES, WITH EXCEPTIONS NOT
MATERIAL HERE, THAT "FAILURE TO HAVE SPECIFIED QUANTITIES OF DRIED EGG
PRODUCTS INSPECTED AND READY FOR DELIVERY BY THE DATE SPECIFIED IN THE
OFFER" WILL BE CAUSE FOR PAYMENT OF "LIQUIDATED DAMAGES."  FN2 

ON MAY 18, 1942, PETITIONER HAD NOT MADE DELIVERY NOR HAD THE EGGS
BEEN INSPECTED.  INSPECTION WAS, HOWEVER, COMPLETED AND CERTIFICATES
ISSUED BY MAY 22, WHICH WAS PRIOR TO THE TIME WHEN FSCC ASKED FOR
DELIVERY.  FOR IT WAS NOT UNTIL MAY 26 THAT FSCC GAVE THE FIRST OF
SEVERAL WRITTEN NOTICES FOR THE SHIPMENT OF EGGS INVOLVED IN THIS
LITIGATION.  PETITIONER MADE TIMELY SHIPMENTS PURSUANT TO THOSE
INSTRUCTIONS.  SUBSEQUENTLY FSCC ASCERTAINED THAT PETITIONER'S
INSPECTION CERTIFICATES HAD BEEN ISSUED AFTER MAY 18 AND ACCORDINGLY
DEDUCTED FROM THE PRICE 10 CENTS PER POUND ON THE THEORY THAT THE
FAILURE TO HAVE THE EGGS INSPECTED AND READY FOR DELIVERY BY MAY 18 WAS
A DEFAULT WHICH PUT INTO OPERATION THE "LIQUIDATED DAMAGES" PROVISION
OF THE CONTRACT. 

PETITIONER BROUGHT THIS SUIT IN THE COURT OF CLAIMS TO RECOVER THE
AMOUNTS WITHHELD PLUS INTEREST.  THE COURT OF CLAIMS, BEING OF THE VIEW
THAT THERE HAD BEEN A BREACH OF CONTRACT FOR WHICH THE UNITED STATES
WAS ENTITLED TO "LIQUIDATED DAMAGES," DISMISSED THE PETITION.  106 CT.
CL. 789, 65 F.SUPP.  457. 

WE CONSTRUE THE CONTRACT TO MEAN THAT THE TIME FOR DELIVERY BY
PETITIONER WAS NOT MAY 18, 1942 BUT THE TIME OR TIMES CHOSEN BY THE
FSCC WITHIN THE TEN-DAY PERIOD WHICH BEGAN ON MAY 18.  THAT IS TO SAY,
PERFORMANCE BY PETITIONER WAS NOT DUE UNTIL REQUEST WAS MADE AND
INSTRUCTIONS GIVEN FOR DELIVERY.  THAT INTERPRETATION IS IN ACCORD WITH
THE UNCONTESTED FINDING OF THE COURT OF CLAIMS THAT PETITIONER PROMISED
DELIVERY "WITHIN A TEN-DAY PERIOD COMMENCING MAY 18, THE PRECISE DATE
TO BE SELECTED" BY THE FSCC. 

THE CONTRACT WAS DRAWN, HOWEVER, TO MAKE THE "LIQUIDATED DAMAGES"
PROVISIONS INCLUDE SO-CALLED DEFAULTS OF PETITIONER WHICH ANTEDATED THE
TIME WHEN DELIVERY WAS DUE BUT WHICH IN NO WAY INTERFERED WITH OR
CAUSED DELAY IN THAT PERFORMANCE.  AS NOTED, "LIQUIDATED DAMAGES"
BECAME PAYABLE ON "FAILURE TO HAVE SPECIFIED QUANTITIES OF DRIED EGG
PRODUCTS INSPECTED AND READY FOR DELIVERY BY THE DATE SPECIFIED IN THE
OFFER," VIZ. BY MAY 18, 1942.  THE COURT OF CLAIMS HELD THIS PROVISION
ENFORCEABLE EVEN THOUGH PETITIONER HAD MADE PROMPT DELIVERY OF THE
EGGS, BECAUSE IT FELT THAT THE PROVISION ENABLED RESPONDENT TO CARRY ON
ITS DRIED-EGG PROGRAM "WITH ASSURANCE THAT IT COULD COUNT ON THE DRIED
EGG PRODUCTS BEING READY ON THE SPECIFIED DATE."  THAT POSITION IS
AMPLIFIED BY RESPONDENT.  THE ARGUMENT IN SHORT IS THAT LIABILITY TO
PAY "LIQUIDATED DAMAGES" FOR FAILURE TO HAVE GOODS READY FOR DELIVERY
EVEN PRIOR TO THE TIME WHEN DELIVERY IS DUE GIVES ASSURANCE AGAINST
TARDY DELIVERIES; THAT A PROMPT TIME-TABLE OF SHIPMENTS WAS IMPORTANT
HERE BECAUSE OF WAR CONDITIONS AND THE NECESSITY OF HAVING GOODS READY
FOR LOADING WHENEVER SHIPPING SPACE WAS AVAILABLE; THAT DELAY IN
DELIVERIES WOULD CAUSE UNMEASURABLE DAMAGE; AND THAT EVEN THOUGH NO
DAMAGE WERE APPARENT IN A PARTICULAR CASE, THE "LIQUIDATED DAMAGES"
PROVISION SHOULD BE ENFORCED AS A DETERRENT OF TARDY DELIVERIES IN THE
WHOLE CLASS OF CONTRACTS RELATING TO THIS PROCUREMENT PROGRAM. 

IT IS CUSTOMARY, WHERE CONGRESS HAS NOT ADOPTED A DIFFERENT STANDARD,
TO APPLY TO THE CONSTRUCTION OF GOVERNMENT CONTRACTS THE PRINCIPLES OF
GENERAL CONTRACT LAW.  UNITED STATES V. STANDARD RICE CO., 323 U.S.
106, 111, AND CASES CITED.  THAT HAS BEEN DONE IN OTHER CASES WHERE THE
COURT HAS CONSIDERED THE ENFORCEABILITY OF "LIQUIDATED DAMAGES"
PROVISIONS IN GOVERNMENT CONTRACTS.  UNITED STATES V. BETHLEHEM STEEL
CO., 205 U.S. 105, 120-121; WISE V. UNITED STATES, 249 U.S. 361, 365
366.  WE ADHERE TO THOSE DECISIONS AND FOLLOW THE SAME COURSE HERE. 

TODAY THE LAW DOES NOT LOOK WITH DISFAVOR UPON "LIQUIDATED DAMAGES"
PROVISIONS IN CONTRACTS.  WHEN THEY ARE FAIR AND REASONABLE ATTEMPTS TO
FIX JUST COMPENSATION FOR ANTICIPATED LOSS CAUSED BY BREACH OF
CONTRACT, THEY ARE ENFORCED.  WISE V. UNITED STATES, SUPRA, P. 365; SUN
PRINTING & PUB. ASSN. V. MOORE, 183 U.S. 642, 672-674; RESTATEMENT,
CONTRACTS SEC. 339; DUNLOP PNEUMATIC TYRE CO. V. NEW GARAGE & M. CO.,
(1915) A.C. 79.  AND SEE KOTHE V. TAYLOR TRUST, 280 U.S. 224, 226. 
THEY SERVE A PARTICULARLY USEFUL FUNCTION WHEN DAMAGES ARE UNCERTAIN IN
NATURE OR AMOUNT OR ARE UNMEASURABLE, AS IS THE CASE IN MANY GOVERNMENT
CONTRACTS.  UNITED STATES V. BETHLEHEM STEEL CO., SUPRA, P. 121;
CLYDEBANK ENGINEERING & SHIPBUILDING CO. V. CASTANEDA, (1905) A.C. 6,
11-13, 20; UNITED STATES V. WALKOF, 144 F.2D 75, 77.  AND THE FACT THAT
THE DAMAGES SUFFERED ARE SHOWN TO BE LESS THAN THE DAMAGES CONTRACTED
FOR IS NOT FATAL.  THESE PROVISIONS ARE TO BE JUDGED AS OF THE TIME OF
MAKING THE CONTRACT.  UNITED STATES V. BETHLEHEM STEEL CO., SUPRA, P.
121. 

JUDGED BY THESE STANDARDS, THE PROVISION IN QUESTION MAY NOT BE
SUSTAINED AS AN AGREEMENT FOR "LIQUIDATED DAMAGES."  IT DOES NOT COVER
DELAYS IN DELIVERIES.  FN3  IT CAN APPLY ONLY WHERE THERE WAS PROMPT
PERFORMANCE WHEN DELIVERY WAS REQUESTED BUT WHERE PROMPT DELIVERY COULD
NOT HAVE BEEN MADE, DUE TO THE ABSENCE OF THE CERTIFICATES, HAD THE
REQUEST COME ON THE FIRST DAY WHEN DELIVERY COULD HAVE BEEN ASKED.  A
DIFFERENT SITUATION MIGHT BE PRESENTED HAD THE CONTRACT PROVIDED FOR
NOTICE TO THE GOVERNMENT WHEN THE CERTIFICATES WERE READY.  THEN WE
MIGHT POSSIBLY INFER THAT PROMPTNESS IN OBTAINING THEM SERVED AN
IMPORTANT FUNCTION IN THE PREPARATION OF TIMETABLES FOR OVERSEAS
SHIPMENTS.  BUT THE CONTRACT CONTAINS NO SUCH PROVISION; AND IT IS
SHOWN THAT FSCC HAD NO KNOWLEDGE THAT THE CERTIFICATES WERE NOT READY
ON MAY 18 UNTIL LONG AFTER DELIVERIES HAD BEEN MADE.  SO, IT IS
APPARENT THAT THE CERTIFICATES WERE ONLY AN ESSENTIAL OF PROPER
DELIVERY UNDER THIS CONTRACT. 

IT LIKEWISE IS APPARENT THAT THE ONLY THING WHICH COULD POSSIBLY
INJURE THE GOVERNMENT WOULD BE FAILURE TO GET PROMPT PERFORMANCE WHEN
DELIVERY WAS DUE.  WE HAVE NO DOUBT OF THE VALIDITY OF THE PROVISION
FOR "LIQUIDATED DAMAGES" WHEN APPLIED UNDER THOSE CIRCUMSTANCES. 
UNITED STATES V. BETHLEHEM STEEL CO., SUPRA; WISE V. UNITED STATES,
SUPRA.  AND SEE MARYLAND DREDGING CO. V. UNITED STATES, 241 U.S. 184;
ROBINSON V. UNITED STATES, 261 U.S. 486.  BUT UNDER THIS PROCUREMENT
PROGRAM DELAYS OF THE CONTRACTORS WHICH DID NOT INTERFERE WITH PROMPT
DELIVERIES PLAINLY WOULD NOT OCCASION DAMAGE.  THAT WAS AS CERTAIN WHEN
THE CONTRACT WAS MADE AS IT LATER PROVED TO BE.  YET THAT WAS THE ONLY
SITUATION TO WHICH THE PROVISION IN QUESTION COULD EVER APPLY.  UNDER
THESE CIRCUMSTANCES THIS PROVISION FOR "LIQUIDATED DAMAGES" COULD NOT
POSSIBLY BE A REASONABLE FORECAST OF JUST COMPENSATION FOR THE DAMAGE
CAUSED BY A BREACH OF CONTRACT.  IT MIGHT, AS RESPONDENT SUGGESTS, HAVE
AN IN TERROREM EFFECT OF ENCOURAGING PROMPT PREPARATION FOR DELIVERY. 
BUT THE ARGUMENT IS A TACIT ADMISSION THAT THE PROVISION WAS INCLUDED
NOT TO MAKE A FAIR ESTIMATE OF DAMAGES TO BE SUFFERED BUT TO SERVE ONLY
AS AN ADDED SPUR TO PERFORMANCE.  IT IS WELL-SETTLED CONTRACT LAW THAT
COURTS DO NOT GIVE THEIR IMPRIMATUR TO SUCH ARRANGEMENTS.  SEE KOTHE V.
TAYLOR TRUST, SUPRA; RESTATEMENT, CONTRACTS SEC. 339.  ALL PROVISIONS
FOR DAMAGES ARE, OF COURSE, DETERRENTS OF DEFAULT.  BUT AN EXACTION OF
PUNISHMENT FOR A BREACH WHICH COULD PRODUCE NO POSSIBLE DAMAGE HAS LONG
BEEN DEEMED OPPRESSIVE AND UNJUST.  SEE SALMOND & WILLIAMS ON CONTRACTS
(2D ED. 1945) SEC. 202. 

IT IS SAID, HOWEVER, THAT A DIFFERENT RULE SHOULD OBTAIN HERE BECAUSE
OF THE BROAD PROCUREMENT POWERS INVOLVED UNDER THE LEND-LEASE ACT.  WE
ARE POINTED, HOWEVER, TO NO PROVISION BY WHICH THE CONGRESS AUTHORIZED
THE IMPOSITION OF PENALTIES AS SANCTIONS TO THAT PROGRAM; NOR DO WE
FIND ANY.  WE CANNOT INFER SUCH A POWER.  THE POWER TO PURCHASE ON
APPROPRIATE TERMS AND CONDITIONS IS, OF COURSE, INFERRED FROM EVERY
POWER TO PURCHASE.  BUT IF THAT IS THE SOURCE OF CONGRESSIONAL
AUTHORITY TO IMPOSE PENALTIES, THEN ANY PROCUREMENT OFFICER, IN WAR OR
IN PEACE, COULD IMPOSE THEM.  THAT IS CONTRARY TO THE PREMISE
UNDERLYING ALL OUR DECISIONS ON THIS QUESTION WHICH INVOLVE GOVERNMENT
CONTRACTS.  THE RULE WHICH THEY ANNOUNCE HAS BEEN APPLIED BOTH TO THE
EXIGENCIES OF WAR (UNITED STATES V. BETHLEHEM STEEL CO., SUPRA) AND OF
PEACE (WISE V. UNITED STATES, SUPRA).  THE OTHER VIEW IS SUCH A RADICAL
BREAK WITH THE PAST AND SO COUNTER TO THE WHOLE DEVELOPMENT OF THE LAW
AS TO INDICATE THAT THE CONGRESSIONAL PURPOSE SHOULD BE PLAIN BEFORE WE
TAKE THE STEP.  REVERSED. 

FN1  THAT PROVISION OF THE CONTRACT PROVIDED:  "INASMUCH AS THE
FAILURE OF THE VENDOR TO DELIVER THE QUANTITY OF THE COMMODITY OR
COMMODITIES SPECIFIED IN THE CONTRACT IN ACCORDANCE WITH THE TERMS OF
THIS ANNOUNCEMENT WILL, BECAUSE OF THE URGENT NEED FOR THE COMMODITY BY
THE PURCHASER ARISING FROM THE PRESENT EMERGENT CONDITIONS, CAUSE
SERIOUS AND SUBSTANTIAL DAMAGES TO THE PURCHASER, AND IT WILL BE
DIFFICULT, IF NOT IMPOSSIBLE, TO PROVE THE AMOUNT OF SUCH DAMAGES, THE
VENDOR AGREES TO PAY TO THE FSCC LIQUIDATED DAMAGES AS STATED IN THIS
PARAGRAPH.  THE SUM IS AGREED UPON AS LIQUIDATED DAMAGES AND NOT AS A
PENALTY AND SHALL BE IN THE AMOUNT SET FORTH BELOW FOR EACH POUND OF
DRIED EGG PRODUCT UNDELIVERED IN ACCORDANCE WITH THE TERMS OF THIS
ANNOUNCEMENT.  ...  THE PARTIES HAVE COMPUTED, ESTIMATED, AND AGREED
UPON THIS SUM AS AN ATTEMPT TO MAKE A REASONABLE FORECAST OF PROBABLE
ACTUAL LOSS BECAUSE OF THE DIFFICULTY OF ESTIMATING WITH EXACTNESS THE
DAMAGES WHICH RESULT." 

THE "LIQUIDATED DAMAGES" RANGED FROM 10 TO 30 CENTS PER POUND
DEPENDENT UPON THE ELAPSED TIME BETWEEN THE ACCEPTANCE DATE AND MAY 18,
1942. 

FN2  THE MEASURE OF "LIQUIDATED DAMAGES" IN THIS SITUATION WAS THE
SAME AS THAT FOR DELAYS IN DELIVERY SET FORTH IN NOTE 1, SUPRA. 

FN3  THEY ARE COVERED, AS WE HAVE ALREADY NOTED, BY THE PROVISION SET
FORTH IN NOTE 1, SUPRA. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE MURPHY AGREES, DISSENTING. 

THE COURT TODAY INVOKES ELUSIVE AND UNCERTAIN PRINCIPLES OF "GENERAL
CONTRACT LAW" TO STRIKE DOWN A CLAUSE IN A GOVERNMENT CONTRACT EXECUTED
UNDER THE RECOGNIZED CONGRESSIONAL AUTHORITY OF THE LEND-LEASE ACT. 
WITHOUT RELIANCE UPON ANY INDICATION OF CONGRESSIONAL POLICY, THE COURT
ASSUMES THAT IT CAN DISCOVER SOMEWHERE A "GENERAL CONTRACT LAW," AND
THAT IT IS EMPOWERED TO APPLY THIS LAW TO WARTIME CONTRACTS OF THE
FEDERAL GOVERNMENT.  I REGARD THE DECISIONS OF THIS COURT SINCE ERIE R.
CO. V. TOMPKINS, 304 U.S. 64, AS HAVING ESTABLISHED THAT THE
CONSTRUCTION AND VALIDITY OF ALL GOVERNMENT CONTRACTS ARE GOVERNED BY
FEDERAL LAW, WHETHER EXECUTED UNDER AUTHORITY OF THE LEND-LEASE ACT OR
ANY OTHER.  METROPOLITAN BANK V. UNITED STATES, 323 U.S. 454, 456; SEE
UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, 183; CLEARFIELD TRUST
CO. V. UNITED STATES, 318 U.S. 363.  AND CONGRESS HAS ENACTED MANY
LAWS, BOTH GENERAL AND SPECIFIC IN NATURE, TO GUIDE ALL CONTRACTING
AGENTS OF THE FEDERAL GOVERNMENT, 41 U.S.C. SECS. 1 ET SEQ., AS WELL AS
MANY DETAILED RULES APPLICABLE SOLELY TO CERTAIN CATEGORIES OF
CONTRACTS.  SEE, E.G., MERCHANT MARINE ACT OF 1936, 49 STAT. 1985,
TITLES V, VII, VIII.  BUT I CAN FIND NO ACT OF CONGRESS WHICH EXPRESSLY
OR IMPLIEDLY PROHIBITS SUCH GENERALLY AUTHORIZED AGENTS FROM MAKING A
CONTRACT CONTAINING A LIQUIDATED DAMAGE PROVISION SUCH AS HERE
INVOLVED.  NOR HAS CONGRESS EVER INTIMATED THAT CONTRACTS WITHIN THE
GENERAL POWERS OF GOVERNMENT AGENTS SHOULD BE INVALIDATED BY THIS
COURT'S INVOCATION OF A NEBULOUS "GENERAL CONTRACT LAW," OR BECAUSE
SUCH CONTRACTS FAILED TO HARMONIZE WITH THIS COURT'S VIEWS OF WHAT IS
"FAIR AND REASONABLE."  I HAD NOT SUPPOSED THAT THE FEDERAL COURTS WERE
VESTED WITH SUCH SUPERVISORY AND REVISORY POWERS OVER THE TERMS OF
CONTRACTS VOLUNTARILY AND ADVISEDLY ENTERED INTO BY BUSINESS GROUPS
WITH CONGRESSIONALLY AUTHORIZED GOVERNMENT AGENTS.    THE AVAILABLE
INDICATIONS OF CONGRESSIONAL POLICY POINT TO THE VERY OPPOSITE
CONCLUSION.  FAR FROM INDICATING A HOSTILITY TO LIQUIDATED DAMAGE
CLAUSES, CONGRESS HAS MADE IT MANDATORY THAT SUCH CLAUSES TO PROTECT
AGAINST DELAY IN PERFORMANCE BE INSERTED IN ALL GOVERNMENT BUILDING
CONTRACTS; AND IT HAS PROVIDED THAT SUCH CLAUSES "SHALL BE CONCLUSIVE
AND BINDING UPON ALL PARTIES" WITHOUT THE NECESSITY FOR THE GOVERNMENT
TO PROVE "ACTUAL OR SPECIFIC DAMAGES SUSTAINED  ...  BY REASON OF
DELAYS  ...  "  32 STAT. 326; 40 U.S.C. SEC. 269.  SURELY THIS
PROVISION WOULD NOT PERMIT FEDERAL JUDGES TO IGNORE LIQUIDATED DAMAGE
CLAUSES IN BUILDING CONTRACTS BECAUSE ACTUAL DAMAGES WERE NOT PROVED
AND COULD NOT HAVE BEEN REASONABLY FORECAST.  AND IN NO OTHER ACT OF
CONGRESS IS THERE A SUGGESTION THAT LIQUIDATED DAMAGE PROVISIONS IN
OTHER GOVERNMENT CONTRACTS ARE UNENFORCEABLE BECAUSE THE COURTS BELIEVE
NO ACTUAL DAMAGES COULD BE SUSTAINED FROM A BREACH.  YET THE MAJORITY
ADOPTS SUCH A PRINCIPLE TODAY TO INVALIDATE A CLAUSE IN THIS CONTRACT,
AND THEREBY, AS I SEE IT, EMBARKS UPON THE VERY UNDESIRABLE PRACTICE OF
SUPERVISING AND REVISING THE CONGRESSIONALLY AUTHORIZED CONDUCT OF
FEDERAL CONTRACTING AGENTS.  THIS COURT HAS PREVIOUSLY REFUSED TO
INITIATE SUCH A PRACTICE IN A CASE WHERE THE GOVERNMENT ON MOST
APPEALING GROUNDS URGED US TO REVISE ITS AGENT'S CONTRACT.  UNITED
STATES V. BETHLEHEM STEEL CORP., 315 U.S. 289, 308-309. 

IN THIS CASE PROCUREMENT OFFICERS OF THE FEDERAL GOVERNMENT,
ADMITTEDLY ACTING WITHIN THEIR AUTHORITY, ADVERTISED FOR BIDS FOR THE
SALE OF DRIED EGGS WHICH THE ADVERTISEMENT PROVIDED WERE TO BE READY
FOR DELIVERY TO THE GOVERNMENT ON A DATE TO BE CHOSEN BY THE BIDDER. 
ACTUAL DELIVERY OF THE EGGS WAS TO BE MADE ON THE GOVERNMENT'S DEMAND
ANY TIME WITHIN A TEN-DAY PERIOD FOLLOWING THE READY DATE NAMED BY THE
BIDDER.  THE ADVERTISEMENT ALSO CONTAINED A PROVISION FOR THE
ASSESSMENT OF LIQUIDATED DAMAGES FOR DELAY IN DELIVERING THE EGGS OR IN
HAVING THEM INSPECTED, CERTIFIED, AND READY FOR DELIVERY BY THE
BIDDER'S CHOSEN DATE. 

THE EFFICIENT INTEGRATION OF A LARGE-SCALE PROCUREMENT PROGRAM, SUCH
AS WAS HERE INVOLVED, MADE IT HIGHLY ADVISABLE FOR THE GOVERNMENT TO
EXACT ASSURANCES THAT GOODS WOULD BE READY FOR DELIVERY IN ADVANCE OF
SELECTION OF THE DATE FOR ACTUAL DELIVERY.  ESSENTIAL TO THE PROGRAM
WAS THE COORDINATED MOVEMENT OF BOXCARS AND SHIPS, BOTH OF WHICH WERE
THEN SCARCE AND IN GREAT DEMAND.  EACH DAY'S IDLENESS OF CARS AND SHIPS
MIGHT MEAN INJURIES TO THE GOVERNMENT OF LARGE BUT UNCERTAIN AMOUNTS. 
UNDER SUCH CIRCUMSTANCES IT WOULD HAVE BEEN A SERIOUS OMISSION FOR
GOVERNMENT AGENTS TO FAIL TO CHECK AND DOUBLE CHECK, CONTRACT AND
DOUBLE CONTRACT, IN ORDER TO HAVE GOODS READY FOR DELIVERY TO CARS AHD
SHIPS WITH THE LEAST POSSIBLE LOST TIME IN THE USE OF TRANSPORT
FACILITIES.  AND THE GOVERNMENT HAD A RIGHT TO DEPEND ON ITS
CONTRACTORS LIVING UP TO THEIR PROMISE TO HAVE GOODS READY ON THE DATE
THEY SAID THEY WOULD SO THAT THE GOVERNMENT MIGHT THEREAFTER SELECT A
DELIVERY DATE WITH CERTAINTY THAT NO TRANSPORTATION DELAYS WOULD
OCCUR.  FAILURE TO DO SO MIGHT WELL DISRUPT THE GOVERNMENT'S
PREARRANGED TRAIN AND SHIP SCHEDULES, CAUSING IT CUMULATIVE
DIFFICULTIES NOT EASILY TRANSLATED INTO MONEY DAMAGES.  AND ALL OF
THESE DAMAGES MIGHT RESULT FROM FAILURE TO HAVE THE GOODS READY AS
PROMISED, EVEN THOUGH THE CONTRACTOR MIGHT LATER BE ABLE TO DELIVER
WHEN CALLED FOR AND THUS ESCAPE THE DELIVERY LIQUIDATED DAMAGE
PROVISION. 

THIS CONTRACT WAS MADE AT ARM'S LENGTH.  THE PETITIONER KNEW OF THE
NECESSITY FOR FAITHFUL PERFORMANCE OF ITS OBLIGATIONS.  IT UNDOUBTEDLY
GAVE CONSIDERATION TO THIS FACT AND FIXED ITS PRICE HIGH ENOUGH TO
SATISFY ITSELF OF ITS PROFITS.  I CAN THINK OF NO PERSUASIVE REASON WHY
IT SHOULD NOW BE RELIEVED OF THE OBLIGATION IT ADVISEDLY ASSUMED WHICH
WAS, IN EFFECT, TO CHARGE LESS FOR ITS GOODS IF THEY WERE NOT READY FOR
DELIVERY ON THE DATE IT PROMISED.  I DO NOT DENY THAT THIS COURT CAN
FILL GAPS IN STATUTES SO AS TO EXECUTE BROAD CONGRESSIONAL PURPOSES AND
THAT COURTS GENERALLY HAVE MADE LARGE CONTRIBUTIONS TO LAWS GOVERNING
CONTRACTS.  BUT I THINK THAT THE COURT HERE MAKES A LAW WHICH
FRUSTRATES CONGRESSIONAL PURPOSES AND TENDS MOST UNWISELY TO HANDICAP
GOVERNMENT PURCHASING AGENTS IN THE PERFORMANCE OF THEIR AUTHORIZED
DUTIES.  I ADHERE TO THE BELIEF THAT IT IS UNWISE FOR THE COURTS TO
INTERFERE WITH THE MAKING OF CONTRACTS BY GOVERNMENT AGENTS IN HARMONY
WITH VALID CONGRESSIONAL AUTHORITY.  PERKINS V. LUKENS STEEL CO., 310
U.S. 113, 127-128, 131-132.  I WOULD AFFIRM THIS JUDGMENT. 

MR. JUSTICE FRANKFURTER, WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

UPON FAILURE TO PERFORM THE UNDERTAKING OF A CONTRACT THE LAW SECURES
THE MONEY EQUIVALENT FOR THE LOSS THEREBY INCURRED.  IN ORDER TO AVOID
THE WASTE OF CONTROVERSY AS TO THE EXTENT OF A LOSS, SHOULD IT OCCUR,
AND TO SAVE JUDGES AND JURIES FROM HAVING TO GUESS ABOUT IT, PARTIES,
NATURALLY ENOUGH, OFTEN STIPULATE IN ADVANCE THE COMPENSATION FOR SUCH
LOSS, AND COURTS IN APPROPRIATE SITUATIONS WILL ENFORCE SUCH A
PROVISION FOR LIQUIDATED DAMAGES.  BUT EXACTIONS FOR A BREACH OF
CONTRACT NOT GIVING RISE TO DAMAGES AND MERELY SERVING AS ADDED
PRESSURE TO CARRY OUT PUNCTILIOUSLY THE TERMS OF A CONTRACT, ARE NOT
ENFORCED BY COURTS.  IN FAMILIAR LANGUAGE, PENAL PROVISIONS IN A
CONTRACT - THOSE THAT CONCERN DEFAULTS THAT BRING NO LOSS IN THEIR
TRAIN - ARE NOT ENFORCEABLE.  I ASSUME THAT THE BASIC REASON FOR THIS
DOCTRINE IS THAT THE INFLICTION OF PUNISHMENT THROUGH COURTS IS A
FUNCTION OF SOCIETY AND SHOULD NOT INURE TO THE BENEFIT OF
INDIVIDUALS.  SO-CALLED QUI TAM ACTIONS, SUITS FOR TREBLE DAMAGES AND
THE LIKE, STAND ON A DIFFERENT FOOTING.  IN SUCH SITUATIONS SOCIETY
MAKES INDIVIDUALS THE REPRESENTATIVES OF THE PUBLIC FOR THE PURPOSE OF
ENFORCING A POLICY EXPLICITLY FORMULATED BY LEGISLATION.  THE ESSENCE
OF THE LAW'S REMEDY FOR BREACH OF CONTRACT IS THAT HE WHO HAS SUFFERED
FROM A BREACH SHOULD BE DULY COMPENSATED FOR THE LOSS INCURRED BY NON
PERFORMANCE.  BUT ONE MAN'S DEFAULT SHOULD NOT LEAD TO ANOTHER MAN'S
UNJUST ENRICHMENT. 

IF THE CONTRACT IN CONTROVERSY IS TO BE TREATED AS AN ORDINARY
COMMERCIAL TRANSACTION, TO BE GOVERNED BY THE ORDINARY RULES APPLICABLE
ALSO TO GOVERNMENT CONTRACTS IN ORDINARY TIMES, I COULD NOT ESCAPE THE
CONCLUSION THAT THE PROVISION FOR "DAMAGES" MERELY FOR FAILURE TO
SECURE INSPECTION CERTIFICATES WITHOUT FAILURE OF DELIVERY OPERATES AS
A PENALTY TO DETER NON-OBSERVANCE OF THIS REQUIREMENT.  IT IS NOT A
DETERMINATION IN ADVANCE OF THE MONEY LOST TO THE GOVERNMENT DUE TO
DEFAULT.  THE GOVERNMENT WANTED DELIVERY OF EGGS.  BUT FAILURE OF
DELIVERY OR INABILITY TO DELIVER FOR WANT OF CERTIFICATES BRINGS INTO
OPERATION THE PROVISIONS FOR LIQUIDATED DAMAGES OF PARAGRAPH 9.  THERE
IS NO MONEY LOSS TO THE GOVERNMENT THROUGH FAILURE OF ANY OF THE
INTERVENING PREPARATORY STEPS IN THE PROCESS LEADING TO DELIVERY.  OF
COURSE A CONTRACTOR IS INTERESTED IN HAVING THE STEPS LEADING TO
PERFORMANCE DULY CARRIED OUT.  EXACTIONS FOR ANY OF THE INTERVENING
STEPS WOULD UNDOUBTEDLY HAVE A COERCIVE INFLUENCE IN SECURING
PERFORMANCE OF THAT WHICH IS THE REAL OBJECT OF A CONTRACT.  BUT IF A
CONTRACT IS PERFORMED, THE PROMISEE HAS SUFFERED NO LOSS EVEN THOUGH
SOME INTERVENING STEP BY THE PROMISOR HAS BEEN DELAYED.  AND SO, SUCH A
PROVISION FOR DEFAULT OF AN INTERVENING STEP, WHEN DUE DELIVERY HAS
BEEN MADE, IS PLAINLY EXACTION OF AN AMOUNT FOR WHICH THE PROMISEE HAS
NOT BEEN OUT OF POCKET.  ACCORDINGLY, IF THIS CONTRACT WERE AN ORDINARY
COMMERCIAL CONTRACT SUBJECT TO THE ORDINARY RULES OF THE LAW OF
CONTRACT, I SHOULD HAVE TO FIND AGAINST THE GOVERNMENT. 

BUT THIS IS NOT AN ORDINARY PEACE-TIME GOVERNMENT CONTRACT.  THE
GOVERNMENT MAY CERTAINLY ASSURE PERFORMANCE OF CONTRACTS UPON WHICH THE
EFFECTIVE CONDUCT OF THE WAR DEPENDED BY TIGHTENING THE CONSEQUENCE OF
NONPERFORMANCE OF EACH STAGE IN THE ULTIMATE PROCESS OF DELIVERY OF
ESSENTIAL GOODS TO THE EXTENT OF HAVING A TARIFF OF DEDUCTIONS FOR NON
PERFORMANCE OF EACH STEP IN THE ULTIMATE GOAL OF THE CONTRACT. 
CONGRESS CERTAINLY COULD SPECIFICALLY AUTHORIZE SUCH PRESSURES ON EACH
STEP IN THE SEQUENCE OF A CONTRACT-PERFORMANCE BY PROVISIONS LIKE THAT
OF PARAGRAPH 7.  CONGRESS DID NOT DO THIS.  INSTEAD OF PARTICULARIZING
TO THAT EXTENT, SUCH A PROVISION WOULD, AS A MATTER OF FAIR
CONSTRUCTION, ALSO BE AUTHORIZED BY CONGRESS IF IT EMPOWERED AN AGENCY
TO PROCURE "UNDER APPROPRIATE TERMS AND CONDITIONS" ESSENTIAL WAR
GOODS.  I COULD NOT HOLD THAT AN AUTHORITY BY CONGRESS TO A PROCUREMENT
AGENCY TO MAKE CONTRACTS FOR CARRYING OUT THE FOOD PROGRAM FOR THE
SUCCESSFUL CONDUCT OF THE WAR COULD NOT APPROPRIATELY REQUIRE OF THOSE
WHO VOLUNTARILY ENTER INTO SUCH CONTRACTS WITH THE GOVERNMENT TO INCUR
A REASONABLE PENALTY FOR DEFAULT FOR NECESSARY CERTIFICATES UPON WHICH
DELIVERY DEPENDED.  AND THIS WOULD BE SO EVEN THOUGH FOR REASONS
THEMSELVES RELATING TO THE WAR EFFORT, THE GOVERNMENT RESERVED A
NECESSARY MARGIN OF TIME WITHIN WHICH TO CALL FOR DELIVERY AND BY A
DELAYED CALL OBTAINED DELIVERY WHEN REQUIRED, THOUGH IF THE CALL HAD
BEEN PREVIOUSLY MADE THE FAILURE OF CERTIFICATION MIGHT HAVE BEEN
SERIOUS.  CONGRESS DID NOT ADD TO ITS AUTHORIZATION FOR ENTERING INTO
THE MAKING OF THESE WAR CONTRACTS THE ASSUMED PROVISION "WITH
APPROPRIATE TERMS AND CONDITIONS."  BUT I FIND THE DISTINCTION BETWEEN
WHAT CONGRESS DID AND THE INDICATED ADDITION TOO THIN FOR DENYING TO
THE CONTRACTING OFFICERS OF THE GOVERNMENT THE IMPLIED RIGHT, UNDER THE
CIRCUMSTANCES OF THE TIMES.  CONGRESS AUTHORIZED THE PRESIDENT, THROUGH
APPROPRIATE DELEGATION, TO "PROCURE  ...  ANY DEFENSE ARTICLE" DEEMED
"VITAL TO THE DEFENSE OF THE UNITED STATES."  SECTION 3(A) OF THE LEND
LEASE ACT OF 1941, 55 STAT. 31.  AND SO I CONCLUDE THAT THE PROVISIONS
OF PARAGRAPH 7 WERE, ON A FAIR READING OF CONGRESSIONAL LEGISLATION,
WITHIN THE CONTRACTING POWERS OF THE PRESIDENT AS MUCH SO AS IF
CONGRESS HAD IN TERMS AUTHORIZED SUCH A PROVISION. 

IT HARDLY NEEDS TO BE ADDED THAT NEITHER FORMAL LOGIC NOR PRACTICAL
JUDGMENT REQUIRES THAT AUTHORITY TO IMPOSE SAFEGUARDS FOR PREVENTING
BREACHES SHORT OF ULTIMATE DEFAULT, SIMILAR TO THOSE CONTAINED IN
PARAGRAPH 7 OF THIS CONTRACT FOR VITAL WAR PRODUCTS, BE INFERRED FROM
THE ORDINARY IMPLIED POWERS OF GOVERNMENT CONTRACTING OFFICERS IN
MAKING ORDINARY CONTRACTS FOR THE GOVERNMENT. 

IF ONE STARTS WITH THE ASSUMPTION THAT, IN THE ABSENCE OF SPECIFIC
CONGRESSIONAL AUTHORITY, A FIXED RULE OF LAW PRECLUDES CONTRACTING
OFFICERS FROM PROVIDING IN A GOVERNMENT CONTRACT TERMS REASONABLY
CALCULATED TO ASSURE ITS PERFORMANCE EVEN THOUGH THERE BE NO MONEY LOSS
THROUGH A PARTICULAR DEFAULT, THERE IS NO PROBLEM.  BUT ANSWERS ARE NOT
OBTAINED BY PUTTING THE WRONG QUESTION AND THEREBY BEGGING THE REAL
ONE.  IT IS MISLEADING TO ASK:  "WHAT REMEDIES HAS CONGRESS PROVIDED
FOR BREACHES OF CONTRACT?"  THE ANSWER TO THAT DEPENDS ON THE ANSWER TO
THE TRUE QUESTION:  "WITH WHAT SCOPE HAS CONGRESS PRESUMABLY INVESTED
THE EXECUTIVE IN ORDER TO CARRY OUT THE DUTY, NOT DEFINED WITH
PARTICULARITY, OF ASSURING THE NECESSARY WAR SUPPLIES?" 

THE ENFORCEABILITY OF A CLAUSE LIKE THAT NOW IN CONTROVERSY,
REGARDLESS OF WHETHER IT IS FAIRLY TO BE REGARDED AS ONE FOR
"LIQUIDATED DAMAGES" OR FOR A "PENALTY," IS A MATTER OF APPROPRIATE
IMPLICATIONS DRAWN FROM A TOTAL ABSENCE OF EXPRESSED CONGRESSIONAL
DESIRE.  SUCH IMPLICATIONS DO NOT REST ON DOGMA.  THEY DERIVE FROM THE
CONSIDERATIONS OF POLICY UNDERLYING THEM.  IT IS ONE THING TO ATTRIBUTE
TO CONGRESS THE DESIRE TO CONFINE THE GOVERNMENT'S REMEDIES FOR
BREACHES OF ITS ORDINARY PROCUREMENT CONTRACTS TO THE RULES OF LAW
GOVERNING ORDINARY COMMERCIAL CONTRACTS.  IT IS QUITE ANOTHER THING TO
INFER THAT WHEN IN MARCH, 1941, CONGRESS GAVE THE PRESIDENT, THROUGH
THE LEND-LEASE ACT, UNRESTRICTED POWER TO "PROCURE" ESSENTIAL WAR
MATERIALS, IT MEANT TO FETTER THE PROCUREMENT AGENCIES SELECTED BY THE
PRESIDENT, BY FORBIDDING THEM TO INCLUDE, AMONG THE TERMS OF BIDS TO BE
VOLUNTARILY ACCEPTED, CONDITIONS REASONABLY CALCULATED TO SECURE
PERFORMANCE. 

WHILE CONGRESS PRESUMABLY WISHES THE ORDINARY RULES OF CONTRACT LAW
TO APPLY IN ORDINARY TIMES, THE LEND-LEASE ACT WAS THE MOST POTENT
PROOF THAT THE TIMES WERE FAR FROM ORDINARY.  THE INCLUSION OF
PARAGRAPH 7 IN CONTRACTS SUCH AS THIS WAS AN APPROPRIATE REGARD BY THE
EXECUTIVE FOR THE VERY EMERGENCY WHICH IMPELLED CONGRESS TO ACT AND TO
GIVE ITS AGENCIES POWER TO ACT. 
..END :





MORRIS V. MCCOMB, 332 U.S. 422 


NO. 7.  ARGUED OCTOBER 13, 1947.  - DECIDED NOVEMBER 17, 1947.  - 155
F.2D 832, JUDGMENT VACATED AND CAUSE REMANDED. 


1.  UNDER SEC. 204 OF THE MOTOR CARRIER ACT, 1935, THE INTERSTATE
COMMERCE COMMISSION HAS POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE WITH RESPECT TO DRIVERS AND MECHANICS EMPLOYED FULL
TIME, AS SUCH, BY A COMMON CARRIER BY MOTOR VEHICLE, WHEN THE SERVICES
RENDERED THROUGH SUCH EMPLOYEES BY SUCH CARRIER IN INTERSTATE COMMERCE
ARE DISTRIBUTED GENERALLY THROUGHOUT THE YEAR, CONSTITUTE 3% TO 4% OF
THE CARRIER'S TOTAL CARRIER SERVICES, AND THE PERFORMANCE OF SUCH
SERVICES IS SHARED INDISCRIMINATELY AMONG SUCH EMPLOYEES AND MINGLED
WITH THEIR PERFORMANCE OF OTHER LIKE SERVICES FOR SUCH CARRIER NOT IN
INTERSTATE COMMERCE.  PP. 423-424, 431-437. 

2.  IT IS THE CHARACTER OF THE EMPLOYEE'S ACTIVITIES RATHER THAN THE
PROPORTION OF EITHER HIS TIME OR OF HIS ACTIVITIES THAT DETERMINES THE
ACTUAL NEED FOR THE COMMISSION'S POWER TO ESTABLISH QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE.  LEVINSON V. SPECTOR MOTOR SERVICE, 330 U.S.
649.  PP. 431-432. 

3.  SECTION 13(B)(1) OF THE FAIR LABOR STANDARDS ACT MAKES THE
OVERTIME REQUIREMENTS OF SEC. 7 INAPPLICABLE TO SUCH EMPLOYEES. 
LEVINSON V. SPECTOR MOTOR SERVICE, SUPRA.  PP. 423-424, 437-438. 

MORRIS V. MCCOMB, WAGE AND HOUR ADMINISTRATOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE DISTRICT COURT DISMISSED A SUIT BY THE WAGE AND HOUR
ADMINISTRATOR TO ENJOIN ALLEGED VIOLATIONS OF SEC. 15(A)(1) AND (2) OF
THE FAIR LABOR STANDARDS ACT.  THE CIRCUIT COURT OF APPEALS REVERSED. 
155 F.2D 832.  THIS COURT GRANTED CERTIORARI.  330 U.S. 817.  JUDGMENT
OF THE CIRCUIT COURT OF APPEALS VACATED AND CAUSE REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF
THE CIRCUIT COURT OF APPEALS, AS HERE MODIFIED, P. 438. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES FURTHER APPLICATION OF THE PRINCIPLES STATED IN
LEVINSON V. SPECTOR MOTOR SERVICE, 330 U.S. 649, AND PYRAMID MOTOR
FREIGHT CORP. V. ISPASS, 330 U.S. 695.  THE FIRST QUESTION IS WHETHER
THE INTERSTATE COMMERCE COMMISSION HAS THE POWER, UNDER SEC. 204 OF THE
MOTOR CARRIER ACT, 1935,  FN1  TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE WITH RESPECT TO DRIVERS AND MECHANICS EMPLOYED FULL
TIME, AS SUCH, BY A COMMON CARRIER BY MOTOR VEHICLE, WHEN THE SERVICES
RENDERED, THROUGH SUCH EMPLOYEES, BY SUCH CARRIER, IN INTERSTATE
COMMERCE, ARE DISTRIBUTED GENERALLY THROUGHOUT THE YEAR, CONSTITUTE 3%
TO 4% OF THE CARRIER'S TOTAL CARRIER SERVICES, AND THE PERFORMANCE OF
SUCH SERVICES IS SHARED INDISCRIMINATELY AMONG SUCH EMPLOYEES AND
MINGLED WITH THEIR PERFORMANCE OF OTHER LIKE SERVICES FOR SUCH CARRIER
NOT IN INTERSTATE COMMERCE.  THE OTHER QUESTION IS WHETHER, IF THE
COMMISSION HAS THAT POWER, THE OVERTIME REQUIREMENTS OF SEC. 7 OF THE
FAIR LABOR STANDARDS ACT OF 1938  FN2  APPLY TO SUCH EMPLOYEES IN VIEW
OF THE EXEMPTION STATED IN SEC. 13(B)(1) OF THAT ACT.  FN3  WE HOLD
THAT THE COMMISSION HAS THE POWER IN QUESTION AND THAT THE OVERTIME
REQUIREMENTS OF SEC. 7 OF THE FAIR LABOR STANDARDS ACT THEREFORE DO NOT
APPLY TO SUCH EMPLOYEES. 

THIS ACTION WAS BROUGHT MARCH 26, 1942, IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF MICHIGAN BY THE ADMINISTRATOR OF THE
WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, UNDER SEC.
17 OF THE FAIR LABOR STANDARDS ACT,  FN4  TO ENJOIN THE PETITIONER,
JAMES F. MORRIS, FROM VIOLATING SEC. 15(A)(1) AND (2) OF THAT ACT  FN5
THROUGH FAILURE TO PAY HIS EMPLOYEES COMPENSATION FOR OVERTIME IN
ACCORDANCE WITH SEC. 7 OF THAT ACT.  FN6  AFTER A TRIAL BASED ON THE
PLEADINGS AND STIPULATED FACTS, THE COMPLAINT WAS DISMISSED SEPTEMBER
26, 1945.  IN ITS UNREPORTED CONCLUSIONS OF LAW THE COURT STATED THAT
NEITHER THE PETITIONER NOR HIS EMPLOYEES WERE ENGAGED "IN THE
PRODUCTION OF GOODS FOR COMMERCE" WITHIN THE MEANING OF THE FAIR LABOR
STANDARDS ACT AND THAT, TO THE EXTENT THAT THEY MIGHT BE CONSIDERED TO
BE ENGAGED "IN COMMERCE" WITHIN THE MEANING OF THAT ACT, THE
REQUIREMENTS OF ITS SEC. 7, AS TO COMPENSATION FOR OVERTIME, DID NOT
APPLY TO THEM.  THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT
REVERSED THIS JUDGMENT MAY 29, 1946, AND REMANDED THE CASE FOR FURTHER
PROCEEDINGS.  WALLING V. MORRIS, 155 F.2D 832.  BECAUSE OF ITS
IMPORTANCE IN INTERPRETING THE MOTOR CARRIER ACT AND THE FAIR LABOR
STANDARDS ACT AND BECAUSE THE QUESTION FIRST STATED ABOVE HAD NOT BEEN
PASSED UPON IN OUR DECISIONS IN THE LEVINSON AND PYRAMID CASES, SUPRA,
WE GRANTED CERTIORARI, 330 U.S. 817, LIMITED TO THE FOLLOWING
QUESTION: 

"2.  WHERE SUCH EMPLOYEES (I.E., THOSE OF A COMMON CARRIER FOR HIRE
WHO CONDUCTS A GENERAL CARTAGE BUSINESS) DURING A MINORITY OF THEIR
TIME ARE ENGAGED IN THE TRANSPORTATION OF INTERSTATE TRAFFIC ARE THEY
EXEMPT UNDER THE PROVISIONS OF SECTION 13(B)(1) OF THE ACT FROM THE
MAXIMUM HOURS PROVISION OF SECTION 7 OF THE ACT AS EMPLOYEES WITH
RESPECT TO WHOM THE INTERSTATE COMMERCE COMMISSION HAS POWER TO
ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT TO THE
PROVISIONS OF SECTION 204 OF THE MOTOR CARRIER ACT, 1935(49 U.S.C. SEC.
301, ET SEQ.)?" 

IN RESPONSE TO OUR INVITATION, THE INTERSTATE COMMERCE COMMISSION
FILED A BRIEF AMICUS CURIAE. 

THE MATERIAL FACTS ARE TREATED BY THE PARTIES AS BEING THOSE SHOWN BY
THE RECORD TO HAVE BEEN IN EFFECT WHEN THE COMPLAINT WAS FILED IN
1942.  THEY MAY BE SUMMARIZED AS FOLLOWS: 

THE PETITIONER THEN WAS, AND FOR THE PAST 12 YEARS HAD BEEN, THE SOLE
OWNER AND PROPRIETOR OF THE J. F. MORRIS CARTAGE COMPANY WHICH OPERATED
A GENERAL CARTAGE BUSINESS AS A COMMON CARRIER BY MOTOR VEHICLE IN AND
ABOUT THE METROPOLITAN AREA OF DETROIT, MICHIGAN, AND ALL WITHIN THREE
CONTIGUOUS COUNTIES OF THAT STATE.  HIS OPERATIONS WERE CENTRALIZED AT
ECORSE, MICHIGAN, AT HIS GARAGE AND YARD, USED FOR A DISPATCHING
OFFICE, GENERAL MAINTENANCE AND REPAIR GARAGE AND STORAGE SPACE FOR
EQUIPMENT. 

HIS PRINCIPAL BUSINESS WAS THE TRANSPORTATION OF STEEL.  IN THE
REGULAR COURSE OF HIS BUSINESS, IN 1941, HE GENERALLY EMPLOYED ABOUT 60
PERSONS, 40 AS TRUCK DRIVERS, 14 AS MECHANICS, PAINTERS, WASHERS AND
REPAIRMEN IN THE GARAGE, THREE AS DISPATCHERS AND THREE AS GENERAL
OFFICE WORKERS.  HIS EQUIPMENT CONSISTED OF ABOUT 50 TRUCKS OR TRACTORS
AND 60 TRAILERS. 

HE WAS PREPARED TO AND DID RENDER GENERAL CARTAGE SERVICE TO THE
GENERAL SHIPPING PUBLIC.  IN 1941, HE RENDERED SUCH SERVICE TO 47
CONSIGNING FIRMS, BUT ABOUT 97% OF HIS REVENUE CAME FROM THE GREAT
LAKES STEEL CORPORATION AND THE MICHIGAN STEEL CORPORATION, BOTH IN
ECORSE.  HIS GENERAL CARTAGE SERVICES, IN 1941, WERE MADE UP OF THREE
INTERMINGLED TYPES OF SERVICE, GENERALLY CLASSIFIABLE AS FOLLOWS ON THE
BASIS OF THE REVENUE DERIVED FROM THEM:  (1) 35%: TRANSPORTATION OF
STEEL LARGELY WITHIN STEEL PLANTS.  THIS WAS TRANSPORTED FOR FURTHER
PROCESSING IN THOSE PLANTS AND AN UNSEGREGATED PORTION OF IT WAS
SHIPPED ULTIMATELY IN INTERSTATE COMMERCE.  (2) 61%: TRANSPORTATION
BETWEEN STEEL MILLS AND INDUSTRIAL ESTABLISHMENTS.  THESE SHIPMENTS
CONSISTED PRINCIPALLY OF BUMPER STOCK, FENDER STOCK AND OTHER TYPES OF
STEEL USED IN CONNECTION WITH THE MANUFACTURE OF AUTOMOBILES, A
SUBSTANTIAL PORTION OF WHICH ENTERED INTERSTATE COMMERCE.  (3) 4%:
TRANSPORTATION OF MISCELLANEOUS FREIGHT DIRECTLY IN INTERSTATE
COMMERCE, EITHER AS PART OF CONTINUOUS INTERSTATE MOVEMENTS OR OF
INTERSTATE MOVEMENTS BEGUN OR TERMINATED IN METROPOLITAN DETROIT.  FN7 

EVER SINCE SEC. 7 OF THE FAIR LABOR STANDARDS ACT TOOK EFFECT,
OCTOBER 24, 1938, PETITIONER'S EMPLOYEES, WITH THE EXCEPTION OF HIS
OFFICE WORKERS, CONSISTENTLY WORKED ENOUGH HOURS TO ENTITLE THEM TO
ADDITIONAL COMPENSATION AT THE RATE OF ONE AND ONE-HALF TIMES THEIR
REGULAR WAGES IF SUCH SECTION WERE APPLICABLE TO THEM.  THEY WERE,
HOWEVER, PAID ON THE ASSUMPTION THAT THE SECTION DID NOT APPLY TO THEM
AND, THEREFORE, FOR THE MOST PART, RECEIVED ONLY THEIR REGULAR RATE OF
PAY FOR SUCH OVERTIME.  ACCORDINGLY, IF IT IS FOUND THAT SEC. 7 IS
APPLICABLE TO THEM, THERE IS GROUND FOR AN INJUNCTION AGAINST ITS
FURTHER VIOLATION.  NO ISSUE IS PRESENTED HERE AS TO THE OFFICE WORKERS
BECAUSE THERE IS NO PROOF OF OVERTIME SERVICES HAVING BEEN RENDERED BY
THEM OR BEING NOW IN PROSPECT.  NO ISSUE IS PRESENTED HERE AS TO THE
DISPATCHERS.  THE CIRCUIT COURT OF APPEALS HELD THAT SEC. 7 APPLIES TO
THEM AS EMPLOYEES ENGAGED IN THE PRODUCTION OF GOODS FOR INTERSTATE
COMMERCE AND THAT THEY ARE NOT EXEMPT AS ADMINISTRATIVE EMPLOYEES. 
THOSE ISSUES, HOWEVER, ARE NOT WITHIN THE LIMITED GRANT OF CERTIORARI. 
AS TO THE GARAGEMEN AND LABORERS, INCLUDING MECHANICS, PAINTERS,
WASHERS AND REPAIRMEN, TOGETHER WITH THEIR SUPERINTENDENT OF
MAINTENANCE, THERE IS NO ISSUE PRESENTED HERE, EXCEPT TO THE EXTENT
THAT SUCH CLASSIFICATIONS INCLUDE MECHANICS DOING THE CLASS OF WORK
DEFINED AS THAT OF "MECHANICS" IN EX PARTE NO. MC-2, 28 M.C.C. 125,
132, 133,  FN8 INCLUDING THE MAKING OF MECHANICAL REPAIRS DIRECTLY
AFFECTING THE SAFE OPERATION OF MOTOR VEHICLES.  ALL OF THE GARAGEMEN
AND LABORERS, EXCEPT THEIR SUPERINTENDENT OF MAINTENANCE, WERE PAID FOR
THEIR OVERTIME WORK AT "STRAIGHT" OR REGULAR HOURLY RATES.  HE WAS PAID
A WEEKLY WAGE, AND RECEIVED NO OVERTIME PAY, ALTHOUGH HE DEVOTED
APPROXIMATELY 25% OF HIS TIME TO THE PERFORMANCE OF ROUTINE PHYSICAL
TASKS OF THE SAME GENERAL CHARACTER AS THOSE OF THE EMPLOYEES WORKING
UNDER HIS DIRECTION.  THE CIRCUIT COURT OF APPEALS HELD THAT THE
SUPERINTENDENT OF MAINTENANCE WAS NOT EXEMPT AS AN EXECUTIVE OR
ADMINISTRATIVE EMPLOYEE AND SHOULD BE CLASSIFIED IN THE SAME MANNER AS
THE OTHERS IN THIS GROUP.  THERE IS NOTHING IN THE RECORD SHOWING THE
EXTENT TO WHICH THE RESPECTIVE GARAGEMEN AND LABORERS DEVOTED
THEMSELVES TO THE SEVERAL CLASSES OF WORK ABOVE MENTIONED AND, IF THIS
WERE AN ACTION TO RECOVER OVERTIME COMPENSATION FOR INDIVIDUAL
EMPLOYEES, IT WOULD BE NECESSARY TO DETERMINE THAT FACT.  HOWEVER, AS
THIS IS AN ACTION ONLY FOR AN INJUNCTION RELATING TO FUTURE PRACTICES,
THE SITUATION CAN BE MET BY LIMITING THE INJUNCTION TO THE APPROPRIATE
CLASSIFICATIONS OF WORKERS.  ON THIS BASIS, THE INJUNCTION AGAINST
VIOLATION OF SEC. 7 OF THE FAIR LABOR STANDARDS ACT MAY BE ISSUED AS TO
THOSE GARAGEMEN AND LABORERS WHO ARE NOT "MECHANICS" AS DEFINED BY THE
INTERSTATE COMMERCE COMMISSION, AND THE ISSUE BEFORE US IS LIMITED TO
THE PROPER APPLICATION OF SUCH AN INJUNCTION TO SUCH "MECHANICS." 

THE DRIVERS ARE FULL-TIME DRIVERS OF MOTOR VEHICLES WELL WITHIN THE
DEFINITION OF THAT CLASS OF WORK BY THE COMMISSION IF THE WORK IS DONE
IN INTERSTATE COMMERCE.  FN9  FROM OCTOBER 24, 1938, TO AUGUST 1, 1940,
THE DRIVERS RECEIVED THEIR "STRAIGHT" OR REGULAR HOURLY RATE OF PAY FOR
ALL OVERTIME WORK.  SINCE AUGUST 1, 1940, THEIR OVERTIME WORK HAS BEEN
PAID FOR IN ACCORDANCE WITH A COLLECTIVE BARGAINING AGREEMENT IN FORCE
AS TO UNION DRIVERS, THROUGHOUT METROPOLITAN DETROIT, EMPLOYED EITHER
IN INTRASTATE OR INTERSTATE GENERAL CARTAGE.  FROM AUGUST 1, 1940, TO
AUGUST 1, 1941, THESE AGREEMENTS REQUIRED PAYMENT OF OVERTIME IN EXCESS
OF 52 HOURS A WEEK AT ONE AND ONE-HALF TIMES THE REGULAR RATE.  AFTER
AUGUST 1, 1941, AS A CONCESSION TO WARTIME CONDITIONS, THIS ADDITIONAL
RATE WAS APPLIED ONLY TO OVERTIME IN EXCESS OF 54 HOURS A WEEK.  THE
STATUTORY WORKWEEK WHICH WOULD BE APPLICABLE UNDER SEC. 7 OF THE FAIR
LABOR STANDARDS ACT AT ALL TIMES HAS BEEN SUBSTANTIALLY SHORTER THAN
THOSE JUST MENTIONED.  FN10 

AS TO THESE DRIVERS AND THESE "MECHANICS" WHOSE WORK AFFECTS SAFETY
OF TRANSPORTATION, THE FIRST QUESTION HERE, AS IN THE LEVINSON CASE, IS
WHETHER THE COMMISSION HAS THE POWER, UNDER SEC. 204 OF THE MOTOR
CARRIER ACT, TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE
WITH RESPECT TO THEM.  THE SPECIAL SITUATION PRESENTED IS THAT, ON THE
AVERAGE, ONLY ABOUT 4% OF THEIR TIME AND EFFORT HAS BEEN, OR IS LIKELY
TO BE, DEVOTED TO SERVICES IN INTERSTATE COMMERCE.  THE ISSUE WOULD
APPEAR IN ITS SIMPLEST FORM IF EACH DRIVER WERE REQUIRED, EACH DAY, TO
DEVOTE 24 MINUTES (I.E., 4% OF HIS ALLOWABLE DAILY AGGREGATE OF TEN
HOURS OF DRIVING TIME) TO DRIVING IN INTERSTATE COMMERCE.  THE QUESTION
THEN WOULD BE WHETHER THE COMMISSION HAS THE POWER TO ESTABLISH HIS
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE IN VIEW OF THE RELATION OF
THIS DRIVING TO SAFETY OF OPERATION IN INTERSTATE COMMERCE.  UNDER THE
TESTS OF THE COMMISSION'S POWER, AS APPROVED IN BOTH THE MAJORITY AND
MINORITY OPINIONS IN THE LEVINSON CASE, AND, UNDER THE ANALYSIS OF THAT
POWER DEVELOPED BY THE INTERSTATE COMMERCE COMMISSION AND CITED IN THAT
CASE, IT IS "THE CHARACTER OF THE ACTIVITIES RATHER THAN THE PROPORTION
OF EITHER THE EMPLOYEE'S TIME OR OF HIS ACTIVITIES THAT DETERMINES THE
ACTUAL NEED FOR THE COMMISSION'S POWER TO ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO QUALIFICATIONS, MAXIMUM HOURS OF SERVICE,
SAFETY OF OPERATION AND EQUIPMENT."  FN11  IT IS BEYOND QUESTION THAT,
UNDER SUCH CIRCUMSTANCES, SEC. 204(A)(1) OF THE MOTOR CARRIER ACT  FN12
HAS AUTHORIZED THE COMMISSION TO ESTABLISH REASONABLE REQUIREMENTS
WITH RESPECT TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF SUCH
DRIVERS.  THE FAIR LABOR STANDARDS ACT, WHICH WAS PASSED THREE YEARS
LATER, HAS RECOGNIZED AND DOES NOT RESTRICT THE COMMISSION'S POWER OVER
THE SAFETY OF OPERATION UNDER THE MOTOR CARRIER ACT.  WHAT IS THUS TRUE
FOR THE DRIVER IS TRUE ALSO FOR THE MECHANIC WHO REPAIRS HIS TRUCK. 

IN THE RECORD BEFORE US, INSTEAD OF 4% OF THE DRIVING TIME OF EACH
DRIVER BEING DEVOTED EACH DAY TO INTERSTATE COMMERCE WITHOUT RELATION
TO WHAT THE DRIVER DOES AT OTHER TIMES, THE PARTIES PRESENT THE ACTUAL
EXPERIENCE OF THE PETITIONER AND HIS DRIVERS THROUGHOUT 1941.  THE
PRINTED RECORD, TOGETHER WITH AN UNPRINTED EXHIBIT FILED WITH THE
CLERK, CLASSIFIES ALL OF THE 19,786 TRIPS TAKEN IN 1941 BY THE 43
DRIVERS WHO RESPECTIVELY DROVE MOTOR VEHICLES FOR THE PETITIONER DURING
NOT LESS THAN EIGHT WEEKS IN THAT YEAR.  ONLY THE "PICKUP TRIPS" AND
"BOAT DOCK TRIPS" ARE COUNTED AS BEING IN "INTERSTATE COMMERCE."  THESE
INVOLVED MOVEMENTS OF GOODS TO OR FROM RAILROAD FREIGHT HOUSES, LINE
HAUL MOTOR CARRIER DEPOTS OR THE BOAT DOCKS OF THE SEVERAL STEAMSHIP
COMPANIES IN DETROIT.  IT WAS STIPULATED THAT THE PETITIONER WAS
"ENGAGED AS A COMMON CARRIER FOR HIRE IN THE LOCAL TRANSPORTATION OF
PROPERTY BY MOTOR VEHICLE," WAS "ENGAGED IN A GENERAL CARTAGE BUSINESS
AND  ...  (WAS) PREPARED TO RENDER SUCH SERVICE TO THE GENERAL SHIPPING
PUBLIC  ...  " EACH DRIVER APPEARS TO HAVE BEEN A FULL-TIME DRIVER
DURING EACH WEEK THAT HE WORKED.  THE TABLES SHOW 464 "PICKUP TRIPS"
AND 260 "BOAT DOCK TRIPS," OR A TOTAL OF 724 MADE IN INTERSTATE
COMMERCE, WHEN AND AS REQUIRED BY PETITIONER'S CONSIGNORS.  THESE
CONSTITUTED 3.65% OF THE PETITIONER'S TOTAL TRIPS.  THEY WERE NOT
DISTRIBUTED EQUALLY TO EACH DRIVER NOR ON THE BASIS OF 4% OF HIS TIME
EACH DAY.  HOWEVER, APPARENTLY IN THE NORMAL OPERATION OF THE BUSINESS,
THESE STRICTLY INTERSTATE COMMERCE TRIPS WERE DISTRIBUTED GENERALLY
THROUGHOUT THE YEAR AND THEIR PERFORMANCE WAS SHARED INDISCRIMINATELY
BY THE DRIVERS AND WAS MINGLED WITH THE PERFORMANCE OF OTHER LIKE
DRIVING SERVICES RENDERED BY THEM OTHERWISE THAN IN INTERSTATE
COMMERCE.  THESE TRIPS WERE THUS A NATURAL, INTEGRAL AND APPARENTLY
INSEPARABLE PART OF THE COMMON CARRIER SERVICE OF THE PETITIONER AND OF
HIS DRIVERS. 

ONE OR MORE SUCH TRIPS WERE TAKEN BY ONE OR MORE DRIVERS EACH WEEK. 
THE AVERAGE NUMBER OF DRIVERS MAKING ONE OR MORE SUCH TRIPS IN EACH
WEEK WAS NINE DRIVERS OUT OF 37, OR 24.4%.  THERE WERE SIX WEEKS IN
WHICH MORE THAN HALF OF THE DRIVERS THUS ENGAGED DIRECTLY IN INTERSTATE
COMMERCE.  THE HIGHEST PERCENTAGE OF DRIVERS MAKING SUCH TRIPS IN ONE
WEEK WAS 78.1%, WHEN 25 DRIVERS, OUT OF THE 32 THEN ON DUTY, DID SO.
AS TO THE DISTRIBUTION OF SUCH TRIPS, THROUGHOUT THE YEAR, AMONG THE
TOTAL OF 43 DRIVERS, EVERY DRIVER, EXCEPT TWO, MADE AT LEAST ONE SUCH
TRIP WITH INTERSTATE FREIGHT.  EACH OF THE TWO WHO FAILED TO MAKE ANY
SUCH TRIP WAS EMPLOYED FOR ONLY ABOUT ONE-HALF THE YEAR AND THAT WAS
DURING THE MONTHS WHEN THE TRIPS IN INTERSTATE COMMERCE WERE THE LESS
FREQUENT.  ON THE OTHER HAND, ONE DRIVER MADE 97 SUCH TRIPS IN
INTERSTATE COMMERCE.  ANOTHER MADE 52 AND THE AVERAGE PER DRIVER WAS
OVER 16.  THE GREATEST NUMBER OF SUCH TRIPS MADE BY A SINGLE DRIVER IN
A SINGLE WEEK WAS SEVEN OUT OF NINE.  IN SEVERAL OTHER WEEKS HE MADE
SIX SUCH TRIPS OUT OF A TOTAL OF SEVEN IN THE WEEK.  THE NET RESULT IS
A PRACTICAL SITUATION SUCH AS MAY CONFRONT ANY COMMON CARRIER ENGAGED
IN A GENERAL CARTAGE BUSINESS, AND WHO IS PREPARED AND OFFERING TO
SERVE THE NORMAL TRANSPORTATION DEMANDS OF THE SHIPPING PUBLIC IN AN
INDUSTRIAL METROPOLITAN CENTER.  FROM THE POINT OF VIEW OF SAFETY IN
INTERSTATE COMMERCE, THE HAZARDS ARE NOT DISTINGUISHABLE FROM THOSE
WHICH WOULD BE PRESENTED IF EACH DRIVER DROVE 4% OF HIS DRIVING TIME
EACH DAY IN INTERSTATE COMMERCE.  IN BOTH CASES THERE IS THE SAME
ESSENTIAL NEED FOR THE ESTABLISHMENT OF REASONABLE REQUIREMENTS WITH
RESPECT TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES. 
IF THE COMMON CARRIER IS REQUIRED, BY VIRTUE OF THAT STATUS, TO TAKE
THIS INTERSTATE BUSINESS HE MUST PERFORM THE REQUIRED SERVICE IN
ACCORDANCE WITH THE REQUIREMENTS ESTABLISHED BY THE COMMISSION.  THE
COMMISSION HAS MADE NO EXCEPTION IN THESE QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE THAT WOULD EXEMPT THE DRIVERS OF THE PETITIONER FROM
THEM AS A CLASS.  THE APPLICABILITY OF THE COMMISSION'S PRESENT
REQUIREMENTS AS TO SPECIFIC DRIVERS DURING SPECIFIC WEEKS IS NOT THE
ISSUE BEFORE US.  WE HOLD THAT THE COMMISSION HAS THE POWER TO
ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE, PURSUANT TO THE
PROVISIONS OF SEC. 204 OF THE MOTOR CARRIER ACT, FOR THE ENTIRE
CLASSIFICATION OF PETITIONER'S DRIVERS AND "MECHANICS" AND IT IS THE
EXISTENCE OF THAT POWER (RATHER THAN THE PRECISE TERMS OF THE
REQUIREMENTS ACTUALLY ESTABLISHED BY THE COMMISSION IN THE EXERCISE OF
THAT POWER) THAT CONGRESS HAS MADE THE TEST AS TO WHETHER OR NOT SEC. 7
OF THE FAIR LABOR STANDARDS ACT IS APPLICABLE TO THESE EMPLOYEES.  FN13
CONGRESS HAS GONE OUT OF ITS WAY TO MAKE THIS PURPOSE CLEAR IN CASES
COMPARABLE TO THE ONE BEFORE US.  IT HAS DONE THIS BY MAKING THE POWER
OF THE COMMISSION, UNDER SEC. 204 OF THE MOTOR CARRIER ACT, EXPRESSLY
APPLICABLE TO MOTOR VEHICLE PICKUP AND DELIVERY SERVICE WITHIN TERMINAL
AREAS  FN14  TO TRANSPORTATION IN INTERSTATE COMMERCE WHOLLY WITHIN A
METROPOLITAN AREA,  FN15  AND TO CASUAL, OCCASIONAL, OR RECIPROCAL
TRANSPORTATION OF PROPERTY IN INTERSTATE COMMERCE BY ANY PERSON NOT
ENGAGED IN TRANSPORTATION BY MOTOR VEHICLE AS A REGULAR OCCUPATION OR
BUSINESS.  FN16  IT HAS MADE THE COMMISSION'S POWER OVER SAFETY
REQUIREMENTS EXPRESSLY APPLICABLE TO THESE OPERATIONS, EVEN THOUGH, AT
THE SAME TIME, CONGRESS HAS EXEMPTED THEM FROM GENERAL REGULATORY
CONTROL. 

CONGRESS FURTHERMORE HAS PROVIDED A SPECIAL PROCEDURE BY WHICH, IN AN
APPROPRIATE CASE, AN INTRASTATE MOTOR CARRIER OR ANY OTHER PARTY IN
INTEREST, MAY SECURE THE GENERAL EXEMPTION OF SUCH A CARRIER FROM
COMPLIANCE WITH THE MOTOR CARRIER ACT EVEN THOUGH SUCH CARRIER DOES
PERFORM SOME INTERSTATE TRANSPORTATION.  CONGRESS, HOWEVER, EXPRESSLY
HAS AUTHORIZED THE COMMISSION, AND NOT THE COURTS, TO DECIDE WHEN THE
CASE IS AN APPROPRIATE ONE FOR SUCH A GENERAL EXEMPTION.  FN17  IT DOES
NOT APPEAR THAT ANY SUCH CERTIFICATE OF EXEMPTION HAS BEEN OBTAINED OR
SOUGHT AS TO THIS PETITIONER. 

HAVING DETERMINED THAT THE COMMISSION HAS THE POWER TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR THESE DRIVERS AND
"MECHANICS" UNDER SEC. 204 OF THE MOTOR CARRIER ACT, THE QUESTION
RECURS AS TO WHETHER, IN THE FACE OF THE EXEMPTION STATED IN SEC.
13(B)(1) OF THE FAIR LABOR STANDARDS ACT, THE REQUIREMENTS OF SEC. 7 OF
THAT ACT NEVERTHELESS APPLY TO THESE EMPLOYEES.  THIS ISSUE AS TO THE
POSSIBLE RECONCILIATION OF THE LANGUAGE OF THESE ACTS SO AS TO PROVIDE
FOR CONCURRENT JURISDICTION WAS CONSIDERED AT LENGTH IN THE LEVINSON
CASE AND THE CONCLUSION WAS THERE REACHED THAT SUCH A CONSTRUCTION WAS
NOT PERMISSIBLE. 

THIS DISCUSSION HAS PROCEEDED ON THE BASIS OF THE FACTS WHICH WERE
STIPULATED TO EXIST IN 1942.  THIS TREATMENT, HOWEVER, SHOULD NOT BE
INTERPRETED AS NECESSARILY RESTRICTING THE DISTRICT COURT TO THE
PRESENT RECORD IF, FOR GOOD CAUSE, THAT COURT FINDS IT ADVISABLE TO
CONSIDER ADDITIONAL EVIDENCE OR TO RETRY THE CASE DE NOVO. 

FOR THESE REASONS, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS
VACATED AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THE OPINION OF THE CIRCUIT COURT OF
APPEALS, AS HERE MODIFIED.  IT IS SO ORDERED. 

FN1  "SEC.  204(A) IT SHALL BE THE DUTY OF THE COMMISSION - 

"(1)  TO REGULATE COMMON CARRIERS BY MOTOR VEHICLE AS PROVIDED IN
THIS PART, AND TO THAT END THE COMMISSION MAY ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO CONTINUOUS AND A DEQUATE SERVICE,
TRANSPORTATION OF BAGGAGE AND EXPRESS, UNIFORM SYSTEMS OF ACCOUNTS,
RECORDS, AND REPORTS, PRESERVATION OF RECORDS, QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND
EQUIPMENT.   ...  "  49 STAT. 546, 49 U.S.C. SEC. 304(A)(1). 

FN2  "SEC.  7.  (A)  NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED
IN THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE
OR IN THE PRODUCTION OF GOODS FOR COMMERCE - 

(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION, 

(2)  FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND
YEAR FROM SUCH DATE, OR 

(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, 

UNLESS SUCH EMPLOYEE RECEIVES COMPENSATION FOR HIS EMPLOYMENT IN
EXCESS OF THE HOURS ABOVE SPECIFIED AT A RATE NOT LESS THAN ONE AND ONE
HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED.  ...  "  52 STAT.
1063, 29 U.S.C. SEC. 207(A). 

FN3  "SEC.  13.  ... 

"(B)  THE PROVISIONS OF SECTION 7 SHALL NOT APPLY WITH RESPECT TO (1)
ANY EMPLOYEE WITH RESPECT TO WHOM THE INTERSTATE COMMERCE COMMISSION
HAS POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE
PURSUANT TO THE PROVISIONS OF SECTION 204 OF THE MOTOR CARRIER ACT,
1935; ...  "  52 STAT. 1068, 29 U.S.C. SEC. 213(B)(1). 

FN4  "SEC.  17.  THE DISTRICT COURTS OF THE UNITED STATES  ...  SHALL
HAVE JURISDICTION, FOR CAUSE SHOWN, AND SUBJECT TO THE PROVISIONS OF
'AN ACT TO SUPPLEMENT EXISTING LAWS AGAINST UNLAWFUL RESTRAINTS AND
MONOPOLIES, AND FOR OTHER PURPOSES', APPROVED OCTOBER 15, 1914, AS
AMENDED (U.S.C., 1934 EDITION, TITLE 28, SEC. 381), TO RESTRAIN
VIOLATIONS OF SECTION 15."  52 STAT. 1069, 29 U.S.C. SEC. 217. 

FN5  "SEC.  15.  (A)  ...  , IT SHALL BE UNLAWFUL FOR ANY PERSON - 

(1)  TO TRANSPORT, OFFER FOR TRANSPORTATION, SHIP, DELIVER, OR SELL
IN COMMERCE, OR TO SHIP, DELIVER, OR SELL WITH KNOWLEDGE THAT SHIPMENT
OR DELIVERY OR SALE THEREOF IN COMMERCE IS INTENDED, ANY GOODS IN THE
PRODUCTION OF WHICH ANY EMPLOYEE WAS EMPLOYED IN VIOLATION OF SECTION 6
OR SECTION 7, OR IN VIOLATION OF ANY REGULATION OR ORDER OF THE
ADMINISTRATOR ISSUED UNDER SECTION 14; EXCEPT THAT NO PROVISION OF THIS
ACT SHALL IMPOSE ANY LIABILITY UPON ANY COMMON CARRIER FOR THE
TRANSPORTATION IN COMMERCE IN THE REGULAR COURSE OF ITS BUSINESS OF ANY
GOODS NOT PRODUCED BY SUCH COMMON CARRIER, AND NO PROVISION OF THIS ACT
SHALL EXCUSE ANY COMMON CARRIER FROM ITS OBLIGATION TO ACCEPT ANY GOODS
FOR TRANSPORTATION; 

(2)  TO VIOLATE ANY OF THE PROVISIONS OF SECTION 6 OR SECTION 7, OR
ANY OF THE PROVISIONS OF ANY REGULATION OR ORDER OF THE ADMINISTRATOR
ISSUED UNDER SECTION 14; ...  "  52 STAT. 1068, 29 U.S.C. SEC. 215. 

FN6  SEE NOTE 2, SUPRA. 

FN7  THIS ACTIVITY IS DESCRIBED AS FOLLOWS: 

"C.  APPROXIMATELY THREE (3) PER CENT OF THE DEFENDANT'S OPERATIONS
CONSISTS OF THE TRANSPORTATION OF FREIGHT BETWEEN THE PLANTS OF THE
GREAT LAKES STEEL CORPORATION AND THE PLANTS OF THE MICHIGAN STEEL
CORPORATION ON THE ONE HAND, AND, ON THE OTHER HAND, INTERCHANGE
POINTS, SUCH AS BOAT DOCKS, RAILROAD DEPOTS, FREIGHT TERMINALS AND
TRUCK TERMINALS LYING IN THE DETROIT METROPOLITAN AREA, WHOLLY WITHIN
THE BOUNDARIES OF THE STATE OF MICHIGAN, INVOLVING THE PICKING UP OF
FREIGHT FROM OR THE DELIVERY OF FREIGHT TO WATER CARRIERS, RAILROAD
CARRIERS AND LINE HAUL MOTOR CARRIERS, WHICH FREIGHT EITHER HAS MOVED
ACROSS THE MICHIGAN STATE LINES OR IS ABOUT TO MOVE ACROSS THE MICHIGAN
STATE LINES IN CONTINUOUS TRANSPORTATION THROUGH CONNECTION BETWEEN THE
DEFENDANT AND SUCH OTHER INTERSTATE CARRIERS.  THE DEFENDANT'S
COMPENSATION FOR HIS PORTION OF THE THROUGH TRANSPORTATION SERVICE IS
IN SOME INSTANCES PAID TO HIM BY THE INTERSTATE CARRIER, THE
COMPENSATION REPRESENTING A DIVISION OF THE THROUGH RATES ON THE
TRANSPORTATION MOVEMENT, AND OTHER INSTANCES BEING COMPENSATED BY THE
SHIPPER. 

     .         .         .         .         . 

"E.  APPROXIMATELY ONE (1) PER CENT OF THE DEFENDANT'S OPERATIONS
CONSISTS OF THE TRANSPORTATION OF MISCELLANEOUS FREIGHT IN GENERAL
CARTAGE SERVICE FOR HIRE AND FOR SHIPPERS OTHER THAN GREAT LAKES STEEL
CORPORATION OR MICHIGAN STEEL CORPORATION.  CARTAGE IN THIS CATEGORY IS
OF THE SAME PHYSICAL CHARACTER AS THAT DESCRIBED IN SUBPARAGRAPHS A, C,
AND D ABOVE, EXCEPT THAT IT IS DONE ON BEHALF OF AND FOR THE ACCOUNT OF
SHIPPERS OTHER THAN GREAT LAKES STEEL CORPORATION AND MICHIGAN STEEL
CORPORATION." 

FN8  "(1)  MECHANICS AND OTHER GARAGE WORKERS.  - THE EVIDENCE IS
CLEAR THAT CARRIERS THAT DO NOT OPERATE APPROXIMATELY 10 MOTOR VEHICLES
OR MORE CANNOT ECONOMICALLY EMPLOY MECHANICS TO DO REPAIR WORK, AND
THEY DO NOT DO SO.  ... 

"THE LARGER CARRIERS, HOWEVER, DO EMPLOY MECHANICS WHOSE PRIMARY
DUTIES ARE TO KEEP THE MOTOR VEHICLES IN A GOOD AND SAFE WORKING
CONDITION.  THEY ARE REQUIRED, FOR EXAMPLE, TO KEEP THE LIGHTS AND
BRAKES IN SUCH CONDITION.  THEY PERFORM MANY OTHER DUTIES, OF COURSE,
BUT THESE ARE SUFFICIENT TO SHOW CLEARLY THAT THE DUTIES OF THESE
EMPLOYEES DO AFFECT SAFETY OF OPERATION DIRECTLY, AS IT IS OBVIOUS THAT
A LARGE MOTOR VEHICLE WITHOUT THE REQUIRED LIGHTS OR ADEQUATE BRAKES IS
A GREAT POTENTIAL HAZARD TO HIGHWAY SAFETY.  ALL WITNESSES TESTIFYING
AT THE HEARING AGREED THAT THE WORK OF MECHANICS HAS SUCH A DIRECT AND
INTIMATE RELATION TO SAFETY OF OPERATION, AND NO CONFLICTING EVIDENCE
WAS SUBMITTED. 

     .         .         .         .         . 

"OUR CONCLUSION IS THAT MECHANICS DEVOTE A LARGE PORTION OF THEIR
TIME TO ACTIVITIES WHICH DIRECTLY AFFECT THE SAFETY OF OPERATION OF
MOTOR VEHICLES OPERATED IN INTERSTATE OR FOREIGN COMMERCE, AND HENCE
THAT WE HAVE POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE FOR SUCH EMPLOYEES UNDER SAID SECTION 204(A). 

"THERE ARE OTHER GARAGE EMPLOYEES WHO DO NOT PERFORM WORK WHICH
AFFECTS SAFETY OF OPERATION DIRECTLY.  SOME CARRIERS EMPLOY MEN WHO DO
NOTHING BUT PAINT VEHICLES.  OTHERS EMPLOY CARPENTERS, AND SOME FEW
EMPLOY TARPAULIN TAILORS.  WE FIND THAT THE WORK DONE BY NONE OF THESE
EMPLOYEES AFFECTS SAFETY OF OPERATION. 

"IT IS POSSIBLE, ALTHOUGH THE RECORD DOES NOT CLEARLY ESTABLISH THE
FACT, THAT SOME OF THE LARGER CARRIERS EMPLOY MEN WHOSE SOLE DUTY IS TO
SEE THAT THE MOTOR VEHICLES ARE PROPERLY SUPPLIED WITH OIL, GAS, AND
GREASE, OR TO WASH THE VEHICLES.  IN THE MAJORITY OF CASES,
UNDOUBTEDLY, THE MECHANICS PERFORM THIS WORK.  HOWEVER, IF THERE BE
EMPLOYEES WHO DO NOTHING BUT OIL, GAS, GREASE, OR WASH THE MOTOR
VEHICLES, WE FIND THAT THEY DO NOT PERFORM DUTIES WHICH DIRECTLY AFFECT
THE SAFETY OF OPERATION AND ARE NOT SUBJECT TO OUR JURISDICTION.  TO
MAKE OUR FINDING IN THIS REGARD ENTIRELY CLEAR, IT IS THAT MECHANICS
ARE THE ONLY GARAGE WORKERS WE FIND SUBJECT TO OUR JURISDICTION."  EX
PARTE NO. MC-2, 28 M.C.C. 125, 132, 133. 

FN9  SAFETY REGULATIONS (CARRIERS BY MOTOR VEHICLE), 49 CFR CUM.
SUPP., PARTS 190-193. 

FN10  SEE NOTE 2, SUPRA. 

FN11  LEVINSON V. SPECTOR MOTOR SERVICE, 330 U.S. 649, 674-675. 

"FOR, FACTUALLY SPEAKING, NOT THE AMOUNT OF TIME AN EMPLOYEE SPENDS
IN WORK AFFECTING SAFETY, BUT WHAT HE MAY DO IN THE TIME THUS SPENT
WHETHER IT BE LARGE OR SMALL DETERMINES THE EFFECT ON SAFETY.  TEN
MINUTES OF DRIVING BY AN UNQUALIFIED DRIVER MAY DO MORE HARM ON THE
HIGHWAY THAN A MONTH OR A YEAR OF CONSTANT DRIVING BY A QUALIFIED
ONE."  ID., DISSENTING OPINION, AT P. 687.    FN12  SEE NOTE 1, SUPRA. 

FN13  "WE RECOGNIZE, AS A PRACTICAL MATTER, THAT PRIVATE CARRIERS
TRANSPORT PROPERTY BOTH IN INTERSTATE AND INTRASTATE COMMERCE.  THE
SAME MOTOR VEHICLE, OPERATED BY THE SAME DRIVER, ON 1 OR 2 DAYS IN A
WEEK MAY BE ENGAGED IN TRANSPORTING PROPERTY IN INTERSTATE COMMERCE AND
THE REST OF THE WEEK MAY BE ENGAGED IN INTRASTATE COMMERCE.  IN OUR
OPINION IF A DRIVER OPERATES A MOTOR VEHICLE IN THE TRANSPORTATION OF
INTERSTATE OR FOREIGN COMMERCE ON ANY DAY OF A GIVEN WEEK, SUCH DRIVER
IS SUBJECT TO THE WEEKLY MAXIMUM HEREIN PRESCRIBED.  LIKEWISE IF A
DRIVER EMPLOYED BY A PRIVATE CARRIER OF PROPERTY IS ENGAGED IN
INTERSTATE COMMERCE DURING ANY ONE PERIOD OF 24 CONSECUTIVE HOURS, HE
IS SUBJECT TO THE DAILY MAXIMUM HEREIN PRESCRIBED.  IF SUCH A DRIVER
DOES NOT DRIVE OR OPERATE A TRUCK IN THE TRANSPORTATION OF PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE FOR AN ENTIRE WEEK, HE IS NOT SUBJECT TO
THE REGULATIONS HEREIN PRESCRIBED DURING THAT WEEK.  WE EXPRESS NO
OPINION AS TO WHETHER OR NOT DURING THAT WEEK THE DRIVER IS SUBJECT TO
THE PROVISIONS OF SECTION 7 OF THE FAIR LABOR STANDARDS ACT."  EX PARTE
NO. MC-3, 23 M.C.C. 1, 39. 

THE ABOVE STATEMENT DEMONSTRATES THE COMMISSION'S OPINION AS TO ITS
POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE IN THE
FIELD OF MIXED INTERSTATE AND INTRASTATE TRANSPORTATION.  THE RULES
THAT IT HAS PRESCRIBED HAVE NOT EXTENDED TO ITS FULL POWER TO MAKE
RULES IN THIS FIELD.  THE FACT THAT THIS STATEMENT WAS MADE IN 1940,
THREE YEARS BEFORE THE DECISION OF THIS COURT IN SOUTHLAND CO. V.
BAYLEY, 319 U.S. 44, EXPLAINS THE EXPRESS RESERVATION MADE AS TO THE
COMMISSION'S OPINION RELATING TO THE EFFECT OF THE SCOPE OF ITS
UNEXERCISED POWERS UNDER SEC. 204 OF THE MOTOR CARRIER ACT IN RELATION
TO SEC. 7 OF THE FAIR LABOR STANDARDS ACT.  FOR THE COMMISSION'S
REGULATIONS OF HOURS OF SERVICE (CARRIERS BY MOTOR VEHICLE) SEE 49 CFR
CUM. SUPP., PART 191. 

FN14  "SEC.  202.  ... 

"(C)  NOTWITHSTANDING ANY PROVISION OF THIS SECTION OR OF SECTION
203, THE PROVISIONS OF THIS PART, EXCEPT THE PROVISIONS OF SECTION 204
RELATIVE TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES
AND SAFETY OF OPERATION AND EQUIPMENT, SHALL NOT APPLY - 

"(1)  TO TRANSPORTATION BY MOTOR VEHICLE BY A CARRIER BY RAILROAD
SUBJECT TO PART I, OR BY A WATER CARRIER SUBJECT TO PART III, OR BY A
FREIGHT FORWARDER SUBJECT TO PART IV, INCIDENTAL TO TRANSPORTATION OR
SERVICE SUBJECT TO SUCH PARTS, IN THE PERFORMANCE WITHIN TERMINAL AREAS
OF TRANSFER, COLLECTION, OR DELIVERY SERVICES; ...  "  SEC. 202(C)(1),
49 STAT. 543, AS AMENDED BY 56 STAT. 300, 49 U.S.C. (SUPP. V, 1946),
SEC. 302(C)(1). 

FN15  "SEC.  203.  ... 

"(B)  NOTHING IN THIS PART, EXCEPT THE PROVISIONS OF SECTION 204
RELATIVE TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES
AND SAFETY OF OPERATION OR STANDARDS OF EQUIPMENT SHALL BE CONSTRUED TO
INCLUDE  ...  (8) THE TRANSPORTATION OF PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE WHOLLY WITHIN A MUNICIPALITY OR BETWEEN
CONTIGUOUS MUNICIPALITIES OR WITHIN A ZONE ADJACENT TO AND COMMERCIALLY
A PART OF ANY SUCH MUNICIPALITY OR MUNICIPALITIES, EXCEPT WHEN SUCH
TRANSPORTATION IS UNDER A COMMON CONTROL, MANAGEMENT, OR ARRANGEMENT
FOR A CONTINUOUS CARRIAGE OR SHIPMENT TO OR FROM A POINT WITHOUT SUCH
MUNICIPALITY, MUNICIPALITIES, OR ZONE, AND PROVIDED THAT THE MOTOR
CARRIER ENGAGED IN SUCH TRANSPORTATION OF PASSENGERS OVER REGULAR OR
IRREGULAR ROUTE OR ROUTES IN INTERSTATE COMMERCE IS ALSO LAWFULLY
ENGAGED IN THE INTRASTATE TRANSPORTATION OF PASSENGERS OVER THE ENTIRE
LENGTH OF SUCH INTERSTATE ROUTE OR ROUTES IN ACCORDANCE WITH THE LAWS
OF EACH STATE HAVING JURISDICTION; OR (9) THE CASUAL, OCCASIONAL, OR
RECIPROCAL TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OR
FOREIGN COMMERCE FOR COMPENSATION BY ANY PERSON NOT ENGAGED IN
TRANSPORTATION BY MOTOR VEHICLE AS A REGULAR OCCUPATION OR BUSINESS." 
49 STAT. 545-546, 49 U.S.C. SEC. 303(B)(8) AND (9). 

FN16  SEE NOTE 15, SUPRA. 

FN17  "SEC.  204(A) IT SHALL BE THE DUTY OF THE COMMISSION - 

.         .         .         .         . 

"(4A)  TO DETERMINE, UPON ITS OWN MOTION, OR UPON APPLICATION BY A
MOTOR CARRIER, A STATE BOARD, OR ANY OTHER PARTY IN INTEREST, WHETHER
THE TRANSPORTATION IN INTERSTATE OR FOREIGN COMMERCE PERFORMED BY ANY
MOTOR CARRIER OR CLASS OF MOTOR CARRIERS LAWFULLY ENGAGED IN OPERATION
SOLELY WITHIN A SINGLE STATE IS IN FACT OF SUCH NATURE, CHARACTER, OR
QUANTITY AS NOT SUBSTANTIALLY TO AFFECT OR IMPAIR UNIFORM REGULATION BY
THE COMMISSION OF TRANSPORTATION BY MOTOR CARRIERS ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE IN EFFECTUATING THE NATIONAL
TRANSPORTATION POLICY DECLARED IN THIS ACT.  UPON SO FINDING, THE
COMMISSION SHALL ISSUE A CERTIFICATE OF EXEMPTION TO SUCH MOTOR CARRIER
OR CLASS OF MOTOR CARRIERS WHICH, DURING THE PERIOD SUCH CERTIFICATE
SHALL REMAIN EFFECTIVE AND UNREVOKED, SHALL EXEMPT SUCH CARRIER OR
CLASS OF MOTOR CARRIERS FROM COMPLIANCE WITH THE PROVISIONS OF THIS
PART, AND SHALL ATTACH TO SUCH CERTIFICATE SUCH REASONABLE TERMS AND
CONDITIONS AS THE PUBLIC INTEREST MAY REQUIRE.  AT ANY TIME AFTER THE
ISSUANCE OF ANY SUCH CERTIFICATE OF EXEMPTION, THE COMMISSION MAY BY
ORDER REVOKE ALL OR ANY PART THEREOF, IF IT SHALL FIND THAT THE
TRANSPORTATION IN INTERSTATE OR FOREIGN COMMERCE PERFORMED BY THE
CARRIER OR CLASS OF CARRIERS DESIGNATED IN SUCH CERTIFICATE SHALL BE,
OR SHALL HAVE BECOME, OR IS REASONABLY LIKELY TO BECOME, OF SUCH
NATURE, CHARACTER, OR QUANTITY AS IN FACT SUBSTANTIALLY TO AFFECT OR
IMPAIR UNIFORM REGULATION BY THE COMMISSION OF INTERSTATE OR FOREIGN
TRANSPORTATION BY MOTOR CARRIERS IN EFFECTUATING THE NATIONAL
TRANSPORTATION POLICY DECLARED IN THIS ACT.  ...  "  49 STAT. 546, AS
AMENDED BY 54 STAT. 921, 49 U.S.C. SEC. 304(A)(4A). 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
DOUGLAS CONCUR, DISSENTING. 

APART FROM SEC. 13(B)(1), IT IS CLEAR THAT PETITIONER'S TRUCK DRIVERS
AND MECHANICS ARE SUBJECT TO THE WAGE AND HOUR PROVISIONS OF THE FAIR
LABOR STANDARDS ACT.  THEY SPEND VIRTUALLY ALL OF THEIR TIME IN
TRANSPORTATION ACTIVITIES WHICH ARE AN INTEGRAL PART OF THE PRODUCTION
OF GOODS FOR INTERSTATE COMMERCE.  WALLING V. COMET CARRIERS, 151 F.2D
107.  THE ISSUE THUS BECOMES ONE OF DETERMINING WHETHER THESE EMPLOYEES
ARE PLAINLY AND UNMISTAKABLY WITHIN THE TERMS AND SPIRIT OF THE SEC.
13(B)(1) EXEMPTION, GIVING DUE REGARD TO THE RULE THAT EXEMPTIONS FROM
THE OPERATION OF HUMANITARIAN LEGISLATION ARE TO BE NARROWLY
CONSTRUED.  PHILLIPS CO. V. WALLING, 324 U.S. 490, 493. 

BY A PEDANTICALLY LITERAL READING OF SEC. 13(B)(1), IT IS POSSIBLE TO
SAY THAT THESE EMPLOYEES ARE AMONG THOSE AS TO WHOM THE INTERSTATE
COMMERCE COMMISSION HAS "POWER" TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE.  A SPORADIC AND MINUTE PORTION OF THEIR ACTIVITIES,
APPROXIMATING 3% TO 4% OF THE TOTAL, AFFECTS THE SAFETY OF OPERATION OF
TRUCKS IN INTERSTATE COMMERCE.  THE COMMISSION'S POWER UNDER SEC.
204(A) OF THE MOTOR CARRIER ACT IS CONFINED TO REGULATION OF
TRANSPORTATION IN INTERSTATE AND FOREIGN COMMERCE; AND ITS JURISDICTION
OVER EMPLOYEES' ACTIVITIES IS LIMITED TO THOSE WHICH AFFECT THE SAFETY
OF OPERATION OF MOTOR VEHICLES ENGAGED IN SUCH TRANSPORTATION.  UNITED
STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534.  HENCE THE POTENTIAL
SCOPE OF THE COMMISSION'S "POWER" OVER PETITIONER'S EMPLOYEES IS
EXTREMELY NARROW.  APPROXIMATELY 97% OF THEIR ACTIVITIES ARE BEYOND THE
JURISDICTION OF THE COMMISSION.  YET IT IS BY THE SLENDER THREAD OF
THIS "POWER" THAT THEY FALL WITHIN SEC. 13(B)(1) AND HENCE ARE DEPRIVED
OF THE BENEFITS OF THE FAIR LABOR STANDARDS ACT. 

DUE RESPECT FOR THE LEGISLATIVE PURPOSE MILITATES AGAINST SUCH A
RESULT.  WE ARE DEALING HERE WITH A STATUTE THAT IS DEDICATED TO THE
PROPOSITION THAT LABORING MEN ARE TO BE TREATED AS SOMETHING MORE THAN
CHATTELS.  AND THEIR STATUTORY RIGHTS ARE NOT TO BE DISCARDED BY
ADHERENCE TO FORMALISTIC DOGMAS OF INTERPRETATION.  SECTION 13(B)(1) IS
NOT JUST AN EXERCISE IN GRAMMAR.  IT IS PART OF THE LIVING FIBER
EMBODYING THE RIGHTS OF THOSE WHO LABOR FOR OTHERS.  IT MUST BE READ
AND INTERPRETED IN THE LIGHT OF REASON AND IN THE LIGHT OF THE AIMS
WHICH CONGRESS SOUGHT TO ACHIEVE. 

WHEN THAT IS DONE, IT BECOMES CLEAR THAT WHEN SEC. 13(B)(1) SPEAKS OF
THOSE OVER WHOM THE INTERSTATE COMMERCE COMMISSION HAS "POWER" IT MEANS
THOSE WHO PERFORM AT LEAST A SUBSTANTIAL AMOUNT OF ACTIVITIES WITHIN
THE COMMISSION'S JURISDICTION.  CONGRESS WAS NOT CONCERNED WITH
INSIGNIFICANT CONFLICTS BETWEEN FAIR LABOR STANDARDS ACT REGULATIONS
AND INTERSTATE COMMERCE COMMISSION REGULATIONS.  NOR WAS IT DESIROUS OF
LEAVING UNREGULATED NEARLY ALL OF THE WORKING TIME OF THOSE WHO ARE
ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE BUT WHO SPEND
INFINITESIMAL AMOUNTS OF TIME DIRECTLY IN INTERSTATE TRANSPORTATION. 
IN OTHER WORDS, ENGAGING IN AN OCCASIONAL AND MICROSCOPIC AMOUNT OF
ACTIVITIES AFFECTING SAFETY OF OPERATION SHOULD NO MORE EXCLUDE
EMPLOYEES FROM THE ACT THAN SPORADICALLY SHIPPING INSUBSTANTIAL AMOUNTS
OF GOODS IN INTERSTATE COMMERCE SHOULD BRING THOSE ENGAGED IN SUCH
SHIPMENTS WITHIN THE PURVIEW OF THE ACT.  SEE MABEE V. WHITE PLAINS
PUB. CO., 327 U.S. 178, 181.  THAT WAS IMPLICITLY RECOGNIZED BY THE
COURT IN PYRAMID MOTOR CORP. V. ISPASS, 330 U.S. 695, 708, AND I HAD
NOT SUPPOSED UNTIL NOW THAT THAT CASE OR LEVINSON V. SPECTOR MOTOR CO.,
330 U.S. 649, JUSTIFIED ANY OTHER RESULT. 

INTERPRETING SEC. 13(B)(1) IN DISREGARD OF REALITY ONLY ACTS AS AN
OPEN INVITATION TO EVADE THE ACT AND TO DESTROY THE STATUTORY RIGHTS OF
THOSE TRUCKING CONCERN EMPLOYEES WHO NOW PERFORM NO ACTIVITIES WHICH
AFFECT THE SAFETY OF OPERATIONS.  ALL THAT THE EMPLOYER NEED DO TO
WITHDRAW THE BENEFITS OF THE ACT FROM THESE EMPLOYEES IS TO SEND THEM
OCCASIONALLY TO A TERMINAL TO PICK UP OR DELIVER A PIECE OF INTERSTATE
FREIGHT.  THEY THEN FALL INTO THE "POWER" OF THE INTERSTATE COMMERCE
COMMISSION AND AUTOMATICALLY LOSE THEIR RIGHTS UNDER THE FAIR LABOR
STANDARDS ACT.  I ACCORDINGLY DISSENT. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

BUT FOR THIS COURT'S DECISIONS IN THE LEVINSON AND ISPASS CASES, MY
VIEWS IN THIS CASE WOULD BE IN SUBSTANTIAL ACCORD WITH THOSE EXPRESSED
BY MR. JUSTICE MURPHY.  SEE LEVINSON V. SPECTOR MOTOR SERVICE, 330 U.S.
649, DISSENTING OPINION AT 685; PYRAMID MOTOR FREIGHT CORP. V. ISPASS,
330 U.S. 695.  I THOUGHT THE DECISIONS IN THOSE CASES FORESHADOWED THE
EXTREME RESULT HERE, WHICH GOES SO FAR AS TO EXCLUDE FROM THE FAIR
LABOR STANDARDS ACT'S PROTECTION AT LEAST TWO EMPLOYEES WHO MADE NO
TRIPS IN WHAT PETITIONER REGARDS AS THE INTERSTATE PHASE OF HIS
BUSINESS.  WHILE ON THE OTHER HAND ONE DRIVER MADE 97 SUCH TRIPS, THERE
WERE OTHERS WHO MADE ONLY VERY OCCASIONAL ONES. 

ALTHOUGH I REGARDED THE LEVINSON AND ISPASS DECISIONS AS
FORESHADOWING AND PERHAPS CONCLUDING ANY SITUATION WHERE THE EMPLOYEE'S
WORK WOULD SUBSTANTIALLY AFFECT SAFETY IN INTERSTATE OPERATIONS, AND
THUS AS GOING TO THE EXTENT OF EXEMPTING FROM FAIR LABOR STANDARDS ACT
COVERAGE ANY EMPLOYEE WHOSE WORK SUBSTANTIALLY AFFECTS SUCH SAFETY, I
DID NOT UNDERSTAND THAT ALL EMPLOYEES DRIVING FOR A COMPANY ENGAGED
PRINCIPALLY IN INTRASTATE COMMERCE BUT DOING A VERY SMALL AMOUNT OF
INTERSTATE COMMERCE WOULD BE LUMPED TOGETHER, FOR PURPOSES OF THE
EXCLUSION, ON THE BASIS OF THE PROPORTIONATE AMOUNTS OF WORK DONE BY
THE COMPANY IN THOSE PHASES OF ITS BUSINESS.  THAT I THINK IS THE
EFFECT OF THE PRESENT DECISION.  TO THAT EXTENT, I ALSO THINK THE
RULING CONSTITUTES AN EXTENSION OF THE EXEMPTION BEYOND THAT SUSTAINED
IN THE LEVINSON AND ISPASS CASES. 

ON THE BASIS OF THE DECISION LAST TERM IN UNITED STATES V. YELLOW CAB
COMPANY, 332 U.S. 218, I ALSO HAVE DIFFICULTY WITH THE VIEW THAT ANY OF
THE CARRIER'S SERVICES HERE WERE RENDERED IN INTERSTATE COMMERCE.  THAT
DECISION HELD THAT THE TRANSPORTATION IN CHICAGO OF PASSENGERS AND
THEIR LUGGAGE FROM THEIR HOMES, OFFICES, HOTELS, ETC. TO RAILROAD
STATIONS FOR THE PURPOSE OF BOARDING TRAINS ON INTERSTATE JOURNEYS, AND
CONVERSELY THE LIKE USE OF TAXICABS IN THE REVERSE DIRECTION AFTER
LEAVING TRAINS ON ARRIVAL IN CHICAGO FOLLOWING SUCH JOURNEYS, WERE "TOO
UNRELATED TO INTERSTATE COMMERCE TO CONSTITUTE A PART THEREOF WITHIN
THE MEANING OF THE SHERMAN ACT."  332 U.S. AT 230.  WHILE I WAS NOT IN
AGREEMENT WITH THE YELLOW CAB DECISION, THE SAME RULING, IF APPLIED TO
THE FACTS HERE, WOULD MAKE THE SO-CALLED "INTERSTATE COMMERCE," I.E.,
THE TRANSPORTATION OF FREIGHT FROM PETITIONER'S CUSTOMERS' PLACES OF
BUSINESS TO SHIPPING TERMINALS, INTRASTATE RATHER THAN INTERSTATE
COMMERCE.  FN1 

I AM UNABLE TO AGREE WITH THE COURT'S OPINION. 

FN1  I DO NOT READ THE STIPULATION OF FACTS IN THIS CASE AS SHOWING
THAT PETITIONER ENGAGED IN TRANSPORTATION FROM TERMINAL TO TERMINAL. 
..END :




RODGERS V. UNITED STATES, 332 U.S. 371 


NO. 58.  ARGUED OCTOBER 16, 1947.  - DECIDED NOVEMBER 10, 1947.  - 158
F.2D 835, REVERSED. 


PENALTIES INCURRED UNDER THE AGRICULTURAL ADJUSTMENT ACT OF 1938, AS
AMENDED, FOR MARKETING COTTON IN EXCESS OF FARM MARKETING QUOTAS FIXED
PURSUANT THERETO, DO NOT BEAR INTEREST FOR THE PERIOD BETWEEN THE DATE
THE PENALTIES BECAME DUE AND THE DATE JUDGMENT IS ENTERED THEREFOR. 
PP. 373-376. 

RODGERS V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE DISTRICT COURT RENDERED JUDGMENT FOR PENALTIES INCURRED UNDER THE
AGRICULTURAL ADJUSTMENT ACT OF 1938, AS AMENDED, PLUS INTEREST FROM THE
DATES THE PENALTIES BECAME DUE TO THE DATE OF JUDGMENT.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  158 F.2D 835.  THIS COURT GRANTED
CERTIORARI.  331 U.S. 799.  REVERSED, P. 376. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THE YEARS 1940, 1941 AND 1942 THE PETITIONER PRODUCED ON HIS FARMS
AND SOLD MORE COTTON THAN THE QUOTA ALLOTTED HIM UNDER AUTHORITY OF
PART IV OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938 AS AMENDED.  52
STAT. 31, 55-60; 55 STAT. 203; 7 U.S.C. SECS. 1281 ET SEQ. THE UNITED
STATES FILED THIS SUIT AGAINST PETITIONER TO RECOVER MONEY "PENALTIES"
TO WHICH SEC. 348  FN1  OF THE ACT MAKES NON-COOPERATING FARMERS
"SUBJECT" WHO MARKET COTTON FROM THEIR FARMS IN EXCESS OF THEIR QUOTA. 
THE DISTRICT COURT RENDERED JUDGMENT FOR $7,039.52 IN PENALTIES PLUS
INTEREST AT 6% FROM THE VARIOUS DATES THE PENALTIES BECAME DUE TO THE
DATE OF JUDGMENT.  THE SIXTH CIRCUIT COURT OF APPEALS AFFIRMED.  158
F.2D 835.  THE FIFTH CIRCUIT HAD PREVIOUSLY DECIDED THAT NO INTEREST IS
ALLOWABLE ON SUCH PENALTIES PRIOR TO JUDGMENT.  UNITED STATES V. WEST
TEXAS COTTONOIL CO., 155 F.2D 463.  WE THEREFORE GRANTED CERTIORARI
LIMITED TO THIS SINGLE QUESTION.  331 U.S. 799. 

SINCE PENALTIES UNDER THE AGRICULTURAL ADJUSTMENT ACT ARE IMPOSED
UNDER AN ACT OF CONGRESS, THEY BEAR INTEREST ONLY IF AND TO THE EXTENT
SUCH INTEREST IS REQUIRED BY FEDERAL LAW.  BROOKLYN SAVINGS BANK V.
O'NEIL, 324 U.S. 697, 714-716; ROYAL INDEMNITY CO. V. UNITED STATES,
313 U.S. 289, 295-297.  THERE IS NO LANGUAGE IN THE AGRICULTURAL
ADJUSTMENT ACT OR IN ANY OTHER ACT OF CONGRESS WHICH SPECIFICALLY
ALLOWS OR FORBIDS INTEREST ON PENALTIES SUCH AS THESE PRIOR TO
JUDGMENT.  FN2 BUT THE FAILURE TO MENTION INTEREST IN STATUTES WHICH
CREATE OBLIGATIONS HAS NOT BEEN INTERPRETED BY THIS COURT AS
MANIFESTING AN UNEQUIVOCAL CONGRESSIONAL PURPOSE THAT THE OBLIGATION
SHALL NOT BEAR INTEREST.  BILLINGS V. UNITED STATES, 232 U.S. 261, 284
288.  FOR IN THE ABSENCE OF AN UNEQUIVOCAL PROHIBITION OF INTEREST ON
SUCH OBLIGATIONS, THIS COURT HAS FASHIONED RULES WHICH GRANTED OR
DENIED INTEREST ON PARTICULAR STATUTORY OBLIGATIONS BY AN APPRAISAL OF
THE CONGRESSIONAL PURPOSE IN IMPOSING THEM AND IN THE LIGHT OF GENERAL
PRINCIPLES DEEMED RELEVANT BY THE COURT.  SEE, E.G., ROYAL INDEMNITY
CO. V. UNITED STATES, SUPRA; BOARD OF COMM'RS V. UNITED STATES, 308
U.S. 343. 

AS OUR PRIOR CASES SHOW, A PERSUASIVE CONSIDERATION IN DETERMINING
WHETHER SUCH OBLIGATIONS SHALL BEAR INTEREST IS THE RELATIVE EQUITIES
BETWEEN THE BENEFICIARIES OF THE OBLIGATION AND THOSE UPON WHOM IT HAS
BEEN IMPOSED.  AND THIS COURT HAS GENERALLY WEIGHED THESE RELATIVE
EQUITIES IN ACCORDANCE WITH THE HISTORIC JUDICIAL PRINCIPLE THAT ONE
FOR WHOSE FINANCIAL ADVANTAGE AN OBLIGATION WAS ASSUMED OR IMPOSED, AND
WHO HAS SUFFERED ACTUAL MONEY DAMAGES BY ANOTHER'S BREACH OF THAT
OBLIGATION, SHOULD BE FAIRLY COMPENSATED FOR THE LOSS THEREBY
SUSTAINED.  SEE, E.G., BROOKLYN SAVINGS BANK V. O'NEIL, SUPRA; UNITED
STATES V. NORTH CAROLINA, 136 U.S. 211, 216; FUNKHOUSER V. J.B. PRESTON
CO., 290 U.S. 163, 168. 

THE CONTENTION IS HARDLY SUPPORTABLE THAT THE FEDERAL GOVERNMENT
SUFFERS MONEY DAMAGES OR LOSS, IN THE COMMON LAW SENSE, TO BE
COMPENSATED FOR BY INTEREST, WHEN ONE CONVICTED OF A CRIME FAILS
PROMPTLY TO PAY A MONEY FINE ASSESSED AGAINST HIM.  THE UNDERLYING
THEORY OF THAT PENALTY IS THAT IT IS A PUNISHMENT OR DETERRENT AND NOT
A REVENUE-RAISING DEVICE; UNLIKE A TAX, IT DOES NOT REST ON THE BASIC
NECESSITY OF THE GOVERNMENT TO COLLECT A CAREFULLY ESTIMATED SUM OF
MONEY BY A PARTICULAR DATE IN ORDER TO MEET ITS ANTICIPATED
EXPENDITURES.  FOR THE FOREGOING REASONS THIS COURT'S HOLDING THAT A
CRIMINAL PENALTY DOES NOT BEAR INTEREST, PIERCE V. UNITED STATES, 255
U.S. 398, 405-406, IS CONSISTENT WITH ITS HOLDING THAT THE GOVERNMENT
DOES SUFFER RECOVERABLE DAMAGES IF A TAXPAYER FAILS TO PAY TAXES WHEN
DUE AND IS THEREFORE EQUITABLY ENTITLED TO INTEREST.  BILLINGS V.
UNITED STATES, SUPRA.  FURTHERMORE, DENIAL OF INTEREST ON CRIMINAL
PENALTIES MIGHT WELL BE RESTED ON JUDICIAL UNWILLINGNESS TO EXPAND
PUNISHMENT FIXED FOR A CRIMINAL ACT BEYOND THAT WHICH THE PLAIN
LANGUAGE OF THE STATUTE AUTHORIZES. 

VIEWED IN LIGHT OF THESE PRINCIPLES, WE THINK THAT THE QUESTION OF
INTEREST ON THE PENALTIES PROVIDED IN THE AGRICULTURAL ADJUSTMENT ACT
ON NON-COOPERATORS SHOULD BE GOVERNED BY THE RULE PREVIOUSLY APPLIED BY
THIS COURT TO CRIMINAL FINES.  ALTHOUGH CONGRESS NEITHER WHOLLY
PROHIBITED NOR MADE IT A CRIME FOR A FARMER TO MARKET COTTON IN EXCESS
OF HIS QUOTA, STILL IT IMPOSED SANCTIONS UPON NON-COOPERATORS ANALOGOUS
TO THOSE OF THE CRIMINAL LAW.  THE PURPOSE OF CONGRESS IN REQUIRING
PAYMENT OF PENALTIES INTO THE FEDERAL TREASURY FOR MARKETING ABOVE THE
ALLOTTED AMOUNT WAS NOT TO RAISE REVENUE FOR THE GOVERNMENT'S FINANCIAL
ADVANTAGE BUT TO DETER FARMERS FROM PLANTING AND MARKETING MORE THAN
THEIR QUOTAS.  IN FACT, THE WHOLE PHILOSOPHY OF THE AGRICULTURAL
ADJUSTMENT ACT IS BASED ON THE THEORY THAT THE PUBLIC WILL BE
BENEFITED, NOT DAMAGED, IF FARMERS PRODUCE AND MARKET WITHIN THESE
QUOTAS, THEREBY AVOIDING THE PAYMENT OF PENALTIES.  THE FRAMEWORK OF
THE ACT ITSELF, BOTH AS ORIGINALLY PASSED AND AS AMENDED, AND THE
REPORTS OF THE CONGRESSIONAL COMMITTEES THAT DRAFTED IT, SHOW A PRIME
PURPOSE TO LIMIT NATIONAL AND INDIVIDUAL FARM PRODUCTION AND MARKETING
TO THE QUOTAS ALLOTTED, AND SHOW THAT THE PENALTIES WERE SOLELY
INTENDED TO DETER FARMERS FROM EXCEEDING THOSE QUOTAS.  FN3  AFTER
CAREFUL CONSIDERATION THE ORIGINAL 1938 ACT WAS AMENDED IN 1941 FOR THE
EXPRESS PURPOSE OF MAKING THE FARMERS' PENALTIES HIGHER, BECAUSE THE
PRIOR PENALTIES HAD NOT IN PRACTICE PROVED A SEVERE ENOUGH SANCTION TO
REDUCE PRODUCTION THE DESIRED AMOUNT.  THE HOUSE COMMITTEE SAID IN ITS
REPORT ON THE 1941 AMENDMENT: 

"AS IN THE CASE OF CORN AND WHEAT, IT APPEARS THAT THE PRESENT RATE
OF PENALTY (FOR COTTON) IS TOO LOW TO RESULT IN THE DESIRED ADJUSTMENT
OF THE AMOUNT TO BE MARKETED DURING THE MARKETING YEAR."  FN4 

AND WITH REFERENCE TO WHEAT AND CORN, THE COMMITTEE HAD REPORTED: 

"WITH THE HIGHER PENALTIES, IT IS EXPECTED THAT GROWERS GENERALLY
WILL STORE THE FARM MARKETING EXCESSES RATHER THAN PAY THE PENALTY AND
PLACE THE COMMODITY ON THE MARKET AT THE TIME WHEN IT IS NOT NEEDED." 
FN5 

IN ADDITION TO THESE HIGH PENALTIES, THE ACT, AS ORIGINALLY PASSED
AND AS AMENDED, WHOLLY DEPRIVED NON-COOPERATORS LIKE PETITIONER OF
SUBSTANTIAL BENEFITS AUTHORIZED BY THE SOIL CONSERVATION ACT AND OF A
LARGE PART OF THE LOAN VALUE PROVIDED BY THE GOVERNMENT FOR COTTON
FARMERS WHO DID NOT EXCEED THEIR QUOTA.  FN6  WE ARE UNABLE TO SAY THAT
IT WOULD BE CONSISTENT WITH THE CONGRESSIONAL PURPOSE FOR THE COURTS TO
ADD INTEREST TO THESE VERY SUBSTANTIAL PENALTIES ALREADY IMPOSED UPON
NON-COOPERATING FARMERS.  FN7  REVERSED. 

FN1  SECTION 348 OF THE 1938 ACT READS AS FOLLOWS: 

"ANY FARMER WHO, WHILE FARM MARKETING QUOTAS ARE IN EFFECT, MARKETS
COTTON IN EXCESS OF THE FARM MARKETING QUOTA FOR THE MARKETING YEAR FOR
THE FARM ON WHICH SUCH COTTON WAS PRODUCED, SHALL BE SUBJECT TO THE
FOLLOWING PENALTIES WITH RESPECT TO THE EXCESS SO MARKETED:  2 CENTS
PER POUND IF MARKETED DURING THE FIRST MARKETING YEAR WHEN FARM
MARKETING QUOTAS ARE IN EFFECT; AND 3 CENTS PER POUND IF MARKETED
DURING ANY SUBSEQUENT YEAR, EXCEPT THAT THE PENALTY SHALL BE 2 CENTS
PER POUND IF COTTON OF THE CROP SUBJECT TO PENALTY IN THE FIRST YEAR IS
MARKETED SUBJECT TO PENALTY IN ANY SUBSEQUENT YEAR."  52 STAT. 59; 7
U.S.C. SEC. 1348. 

THE 1941 AMENDMENT REQUIRED COMPUTATION OF THE PENALTY ON THE
FOLLOWING BASIS: 

"THAT NOTWITHSTANDING THE PROVISIONS OF THE AGRICULTURAL ADJUSTMENT
ACT OF 1938, AS AMENDED (HEREINAFTER REFERRED TO AS THE ACT) - 

     .         .  .         .         . 

"(9)  THE MARKETING PENALTY FOR COTTON AND RICE PRODUCED IN THE
CALENDAR YEAR IN WHICH ANY MARKETING YEAR BEGINS (IF BEGINNING WITH OR
AFTER THE 1941-1942 MARKETING YEAR) SHALL BE AT A RATE EQUAL TO 50 PER
CENTUM OF THE BASIC RATE OF THE LOAN FOR COOPERATORS FOR SUCH MARKETING
YEAR UNDER SECTION 302 OF THE ACT AND THIS RESOLUTION."  55 STAT. 203,
205; 7 U.S.C. (SUPP. V, 1946), SEC. 1330(9). 

FN2  28 U.S.C. 811 DOES ALLOW INTEREST ON DISTRICT COURT JUDGMENTS IN
ALL CIVIL CASES WHERE INTEREST WOULD BE ALLOWED BY THE LAW OF THE STATE
IN WHICH THE COURT IS HELD. 

FN3  SEN. REP. NO. 1295, 75TH CONG., 2D SESS., 6(1937); H.R. REP. NO.
1645, 75TH CONG., 2D SESS., 1, 36(1937); H.R. REP. NO. 1767, 75TH
CONG., 3D SESS., 90(1938); H.R. REP. NO. 364, 77TH CONG., 1ST SESS.,
3(1941). 

FN4  H.R. REP. NO. 364, 77TH CONG., 1ST SESS., 3(1941). 

FN5 ID. AT 2. 

FN6  SECS. 302(C), 349 OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938; 52
STAT. 43, 59; 7 U.S.C. SEC. 1302(C), 1349. 

FN7  SEE AS TO PENALTIES IN GENERAL, HELWIG V. UNITED STATES, 188
U.S. 605; UNITED STATES V. CHOUTEAU, 102 U.S. 603; SUNSHINE ANTHRACITE
COAL CO. V. ADKINS, 310 U.S. 381, 401; HELVERING V. MITCHELL, 303 U.S.
391; UNITED STATES V. CHILDS, 266 U.S. 304; RODGERS V. UNITED STATES,
138 F.2D 992.  FOR DECISIONS OF STATE COURTS WHICH GRANT INTEREST ON
STATUTORY OBLIGATIONS BUT DISALLOW INTEREST ON STATUTORY PENALTIES, SEE
CASES COLLECTED IN NOTE, 27 ANN. CAS. 1913 B, 853, 855-856; NOTE, 28
L.R.A. (N.S.)  1, 74-75(1910); 1 SUTHERLAND, DAMAGES, SEC. 330(1916). 

MR. JUSTICE BURTON, DISSENTING. 

THE SUMS DUE TO THE GOVERNMENT ARE FIXED OBLIGATIONS WITH FIXED TIMES
OF PAYMENT.  THEY ARE DEBTS INCIDENTAL TO THE LAWFUL CONDUCT OF
BUSINESS AND NOT PENALTIES IMPOSED FOR VIOLATIONS OF LAW.  ACCORDINGLY,
THE DEBTOR SHOULD PAY AND THE GOVERNMENT SHOULD COLLECT INTEREST ON
THEM, AS ON OTHER DEBTS TO THE GOVERNMENT, TO COMPENSATE FOR DELAYS IN
THEIR PAYMENT.  THE AGRICULTURAL ADJUSTMENT ACT EXPRESSLY FIXED THE
AMOUNT AND TIME FOR PAYMENT OF THE SUMS IN QUESTION ALTHOUGH IT DID NOT
EXPRESSLY MENTION THE ACCRUAL OR DENIAL OF INTEREST ON DELAYED
PAYMENTS.  HOWEVER, THE FEDERAL RULE IS WELL-ESTABLISHED THAT, WITHOUT
EXPRESS STATUTORY REFERENCE TO THE SUBJECT OF INTEREST, INTEREST IS DUE
TO THE GOVERNMENT ON UNPAID STATUTORY DEBTS AFTER THEY HAVE BECOME DUE
IN FIXED AMOUNTS AT FIXED TIMES, SUCH AS THOSE FOR CUSTOMS DUTIES AND
TAXES. 

"THUS, AS TO THE NECESSITY FOR A STATUTE IT WAS LONG AGO HERE DECIDED
IN VIEW OF THE TRUE CONCEPTION OF INTEREST, THAT A STATUTE WAS NOT
NECESSARY TO COMPEL ITS PAYMENT WHERE IN ACCORDANCE WITH THE PRINCIPLES
OF EQUITY AND JUSTICE IN THE ENFORCEMENT OF AN OBLIGATION, INTEREST
SHOULD BE ALLOWED."  BILLINGS V. UNITED STATES, 232 U.S. 261, 286. 
FN1 

THIS STATEMENT WAS MADE BY CHIEF JUSTICE WHITE, SPEAKING FOR THE
COURT, IN A CASE UPHOLDING THE COLLECTION OF INTEREST ON A TAX PAYABLE
TO THE UNITED STATES, UNDER A STATUTE THAT CONTAINED NO REFERENCE TO
THE ACCRUAL OF INTEREST. 

THE REQUIREMENT THAT INTEREST BE PAID TO THE GOVERNMENT UPON THE
DEBTS DUE TO IT UNDER THE AGRICULTURAL ADJUSTMENT ACT NOT ONLY IS "IN
ACCORDANCE WITH THE PRINCIPLES OF EQUITY AND JUSTICE" CALLED FOR BY THE
GENERAL RULE JUST STATED BUT THE ACCRUAL OF INTEREST IN FAVOR OF THE
GOVERNMENT UNDER THAT ACT ALSO IS THOROUGHLY CONSISTENT WITH, AND
HELPFUL TO, THE ACCOMPLISHMENT OF ITS PURPOSE OF PRICE AND CROP
CONTROL.  THE DISALLOWANCE OF SUCH INTEREST IS EQUALLY INCONSISTENT
WITH, AND A LIMITATION UPON, THE ACCOMPLISHMENT OF THAT PURPOSE. 

THE DEFAULTED PAYMENTS ON WHICH INTEREST IS CLAIMED HERE BECAME DUE
BECAUSE OF THE PETITIONER'S SALES OF COTTON IN EXCESS OF HIS STATUTORY
QUOTA AND SUCH PAYMENTS ARE REFERRED TO IN THE ACT AS "PENALTIES." 
HOWEVER, THE CONTEXT SHOWS THAT, INSTEAD OF BEING CRIMINAL PENALTIES
IMPOSED FOR VIOLATIONS OF THE LAW, THEY ARE "MARKETING PENALTIES"
CONSISTING OF GOVERNMENTAL CHARGES ADDED TO THE PRESALE EXPENSES OF THE
SELLER, ESPECIALLY TO HELP KEEP PRICES AND SALES IN LINE WITH THE
ECONOMIC PROGRAM OF THE GOVERNMENT.  SATISFACTION OF THESE CHARGES IS
MADE A CONDITION OF THE SELLER'S LEGAL RIGHT TO SELL HIS EXCESS COTTON
AT A PARTICULAR TIME.  THEY ARE THE VERY OPPOSITE OF PENALTIES IMPOSED
FOR MAKING ILLEGAL SALES.  THEY ARE LAWFUL, "ORDINARY AND NECESSARY"
BUSINESS EXPENSES INCIDENTAL TO HIS SALES.  THEY ARE DEDUCTIBLE FROM
HIS TAXABLE INCOME, WHEREAS CRIMINAL PENALTIES ARE NOT DEDUCTIBLE FROM
TAXABLE INCOME.  FN2  THESE "MARKETING PENALTIES" ARE ALSO UNLIKE
CRIMINAL PENALTIES IN THAT THEY MAY BE PAID IN ADVANCE, DEPOSITED IN
ESCROW OR SECURITY GIVEN FOR THEIR PAYMENT.  WHEN THAT IS DONE, THE
SELLER MAY, IN HIS USUAL MANNER, DISPOSE OF THE EXCESS-QUOTA COTTON TO
WHICH THE PAYMENTS RELATE.  COTTON MARKETING QUOTA REGULATIONS, 1942
43, SEC. 722.440(C), 7 FED. REG. 4369; ID. SEC. 722.453, 7 FED. REG.
4374.  THESE DEBTS ARE MORE COMPARABLE TO CUSTOMS DUTIES THAN TO
CRIMINAL PENALTIES.  FN3  APPARENTLY THESE CHARGES ARE COLLECTIBLE BY
THE GOVERNMENT ONLY BY CIVIL PROCEEDINGS AND LIABILITY FOR THEM NEED
NOT BE ESTABLISHED BEYOND A REASONABLE DOUBT.  USHER V. UNITED STATES,
146 F.2D 369, 371.    THE PAYMENTS ARE IMPOSED IN PART FOR REVENUE
PURPOSES ALTHOUGH ESPECIALLY AS A MEANS OF INDUCING COTTON OWNERS TO
CONTROL THEIR SALES OF COTTON IN INTERSTATE AND FOREIGN COMMERCE IN
ACCORDANCE WITH THE ECONOMIC POLICIES OF THE GOVERNMENT.  DURING ITS
CONSIDERATION OF THE AGRICULTURAL ADJUSTMENT ACT, CONGRESS DECLINED TO
ADOPT A PROPOSAL TO TREAT SUCH SALES AS IN VIOLATION OF LAW FN4  AND
ADOPTED INSTEAD THE POLICY RECOGNIZING SUCH SALES AS LAWFUL SALES
CONDITIONED UPON PAYMENT TO THE GOVERNMENT OF THE CHARGES HERE BEING
CONSIDERED.  FINANCIAL BURDENS WHICH MAY BE POSTPONED WITHOUT THE
PAYMENT OF INTEREST ARE MUCH LESS BURDENSOME THAN THOSE THAT ARE NOT
POSTPONABLE OR THAT ARE SUBJECT TO THE ACCRUAL OF INTEREST DURING THEIR
POSTPONEMENT.  THE OMISSION OF THE USUAL INTEREST CHARGE ON POSTPONED
MARKETING PENALTIES THEREFORE DECREASES THE FORCE OF THE ACT AS A
DETERRING FACTOR AND RUNS COUNTER TO THE SPECIAL PURPOSE OF THE ACT. 

FOR THESE REASONS, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS,
AFFIRMING THAT OF THE DISTRICT COURT ALLOWING INTEREST FROM THE DATE OF
DEFAULT, SHOULD HAVE BEEN AFFIRMED. 

FN1  "THE CONFLICT BETWEEN THE SYSTEMS IS PRONOUNCED AND
FUNDAMENTAL.  IN THE ONE, THE STATE RULE, EXCEPT AS TO CONTRACT, NO
INTEREST WITHOUT STATUTE; IN THE UNITED STATES RULE, INTEREST IN ALL
CASES WHERE EQUITABLY DUE UNLESS FORBIDDEN BY STATUTE.  IN ONE NO SUIT
FOR TAXES AS A DEBT WITHOUT EXPRESS STATUTORY AUTHORITY, IN THE OTHER
THE RIGHT TO SUE FOR TAXES AS FOR A DEBT IN EVERY CASE WHERE NOT
PROHIBITED BY STATUTE. 

"FROM THIS REVIEW IT RESULTS THAT THE DOCTRINE AS TO NON-LIABILITY TO
PAY INTEREST FOR TAXES WHICH HAVE BECOME DUE WHICH PREVAILS IN THE
STATE COURTS IS ABSOLUTELY IN CONFLICT WITH THE DOCTRINE APPLIED TO THE
SAME SUBJECT IN THIS COURT AND CANNOT NOW BE MADE THE RULE WITHOUT
REPUDIATING SETTLED PRINCIPLES WHICH HAVE BEEN HERE APPLIED FOR MANY
YEARS IN VARIOUS ASPECTS AND WITHOUT IN EFFECT DISREGARDING THE
SANCTION EITHER EXPRESSLY OR IMPLIEDLY GIVEN BY CONGRESS TO SUCH
RULES.  ...  UNDER THIS CONDITION WE CAN SEE NO GROUND FOR DEPARTING
FROM THE RULE WHICH THE CASES ENFORCED,  ...  "  BILLINGS V. UNITED
STATES, SUPRA, AT PP. 287-288. 

FN2  "ALTHOUGH THE AMOUNTS PAID BY THE PRODUCER ARE DESIGNATED AS
PENALTIES IN THE STATUTE AND REGULATIONS REFERRED TO ABOVE, IT APPEARS
THAT THE PURPOSE OF THE STATUTE IS TO PLACE A CHARGE AGAINST THE
PRODUCER ON THE SALE OF THE COMMODITY WHICH WAS PRODUCED IN EXCESS OF
THE QUOTA.  THE STATUTE DOES NOT PROHIBIT PRODUCERS FROM PRODUCING THE
COMMODITY, BUT MERELY PLACES A CHARGE ON THE EXCESS OF THE QUOTA
PRODUCED AND MARKETED.  THE SO-CALLED PENALTIES ARE NOT PAID FOR THE
VIOLATION OF, OR NONCOMPLIANCE WITH, A STATUTE OR REGULATION OR FOR ANY
ILLEGAL ACT, BUT ARE PAID FOR THE PURPOSE OF LEGALIZING THE MARKETING
OF THE EXCESS PRODUCTION, WHICH WITH THIS CONDITION THE STATUTE
SANCTIONS, AND ARE, THEREFORE, MADE IN COMPLIANCE WITH THE STATUTE.  IT
IS ACCORDINGLY THE VIEW OF THIS OFFICE THAT THE SO-CALLED PENALTIES ARE
DEDUCTIBLE FROM GROSS INCOME UNDER SECTION 23(A) OF THE INTERNAL
REVENUE CODE IN COMPUTING NET INCOME AS ORDINARY AND NECESSARY EXPENSES
INCURRED IN CARRYING ON A TRADE OR BUSINESS."  I.T. 3530, 1942-1 CUM.
BULL., 43, 45-46. 

PAYMENTS IN THE NATURE OF PENALTIES FOR THE VIOLATION OF FEDERAL OR
STATE STATUTES IN THE ORDINARY USE OF THAT TERM ARE NOT DEDUCTIBLE. 
COMMISSIONER V. LONGHORN PORTLAND CEMENT CO., 148 F.2D 276; BURROUGHS
BLDG. MATERIAL CO. V. COMMISSIONER, 47 F.2D 178; GREAT NORTHERN R. CO.
V. COMMISSIONER, 40 F.2D 372. 

FN3  CUSTOMS DUTIES ARE PERSONAL DEBTS TO THE UNITED STATES. 
MEREDITH V. UNITED STATES, 13 PET. 486, 493.  INTEREST IS COLLECTIBLE
ON THE DEBT TO THE GOVERNMENT ARISING OUT OF THE IMPOSITION OF CUSTOMS
DUTIES.  UNITED STATES V. MEXICAN INTERNATIONAL R. CO., 154 F. 519.  IT
IS COMMON KNOWLEDGE THAT, WHILE SOME CUSTOMS DUTIES OR TARIFFS MAY HAVE
BEEN LEVIED "FOR REVENUE ONLY," MANY HAVE BEEN ENACTED AS "PROTECTIVE
TARIFFS" IN WHICH A PRIMARY INTEREST OF THE GOVERNMENT WAS, AS UNDER
THE AGRICULTURAL ADJUSTMENT ACT, TO RESTRICT THE FLOODING OF THE MARKET
WITH CERTAIN GOODS AT A CERTAIN TIME.  THE COLLECTION OF INTEREST ON
DELAYED PAYMENTS OF CUSTOMS DUTIES WOULD BEAR A SIMILAR RELATION OF
HELPFULNESS TO THE GOVERNMENT'S ECONOMIC AND FINANCIAL POLICIES AS
WOULD THE COLLECTION OF INTEREST ON DEFAULTED MARKET PENALTIES.  THE
GOVERNMENT, UNDER THE AGRICULTURAL ADJUSTMENT ACT, NOT ONLY SEEKS TO
RESTRICT EXCESS-QUOTA SALES, BUT IT ALSO SEEKS TO ADD TO ITS CURRENT
CASH RESOURCES FROM WHICH IT PROPOSES TO MAKE THE LOANS TO COOPERATING
PRODUCERS WHICH ARE AUTHORIZED BY THE ACT. 

FN4  SEC. 33, H.R. 8505, 75TH CONG., 2D SESS. (1937), AS PASSED BY
THE SENATE BUT LATER REJECTED. 

MR. JUSTICE RUTLEDGE JOINS IN THIS DISSENT. 
..END :










FEDERAL CROP INS. CORP. V. MERRILL, 332 U.S. 380 


NO. 45.  ARGUED OCTOBER 16, 1947.  - DECIDED NOVEMBER 10, 1947.  - 67
IDAHO 196, 174 P.2D 834, REVERSED. 


1.  THE FEDERAL CROP INSURANCE CORPORATION, A WHOLLY GOVERNMENT-OWNED
CORPORATION CREATED BY THE FEDERAL CROP INSURANCE ACT TO INSURE
PRODUCERS OF WHEAT AGAINST CROP LOSSES DUE TO UNAVOIDABLE CAUSES,
INCLUDING DROUGHT, PROMULGATED AND PUBLISHED IN THE FEDERAL REGISTER
REGULATIONS SPECIFYING THE CONDITIONS ON WHICH IT WOULD INSURE WHEAT
CROPS, INCLUDING A PROVISION MAKING "SPRING WHEAT WHICH HAS BEEN
RESEEDED ON WINTER WHEAT ACREAGE" INELIGIBLE FOR INSURANCE.  WITHOUT
ACTUAL KNOWLEDGE OF THIS PROVISION, A WHEAT GROWER APPLIED TO THE
CORPORATION'S LOCAL AGENT FOR INSURANCE ON HIS WHEAT CROP, INFORMING
THE LOCAL AGENT THAT MOST OF IT WAS BEING RESEEDED ON WINTER WHEAT
ACREAGE; BUT THIS INFORMATION WAS NOT INCLUDED IN THE WRITTEN
APPLICATION.  THE CORPORATION ACCEPTED THE APPLICATION SUBJECT TO THE
TERMS OF ITS REGULATIONS.  MOST OF THE CROP ON THE RESEEDED ACREAGE WAS
DESTROYED BY DROUGHT.  HELD:  THE CORPORATION IS NOT LIABLE FOR THE
LOSS ON THE RESEEDED ACREAGE.  PP. 381-386. 

2.  HAVING BEEN PUBLISHED IN THE FEDERAL REGISTER, THE WHEAT CROP
INSURANCE REGULATIONS ARE BINDING ON ALL WHO SEEK TO COME WITHIN THE
FEDERAL CROP INSURANCE ACT, REGARDLESS OF LACK OF ACTUAL KNOWLEDGE OF
THE REGULATIONS.  P. 385. 

FEDERAL CROP INSURANCE CORP. V. MERRILL ET AL., DOING BUSINESS AS
MERRILL BROS. 

CERTIORARI TO THE SUPREME COURT OF IDAHO. 

THE SUPREME COURT OF IDAHO AFFIRMED A JUDGMENT AGAINST THE FEDERAL
CROP INSURANCE CORPORATION FOR LOSS OF A WHEAT CROP WHICH HAD BEEN
RESEEDED ON WINTER WHEAT ACREAGE.  67 IDAHO 196, 174 P.2D 834.  THIS
COURT GRANTED CERTIORARI.  331 U.S. 798.  REVERSED, P. 386. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THIS CASE HERE BECAUSE IT INVOLVES A QUESTION OF
IMPORTANCE IN THE ADMINISTRATION OF THE FEDERAL CROP INSURANCE ACT. 
331 U.S. 798. 

THE RELEVANT FACTS MAY BE BRIEFLY STATED.  PETITIONER (HEREINAFTER
CALLED THE CORPORATION) IS A WHOLLY GOVERNMENT-OWNED ENTERPRISE,
CREATED BY THE FEDERAL CROP INSURANCE ACT, AS AN "AGENCY OF AND WITHIN
THE DEPARTMENT OF AGRICULTURE."  SEC. 503 OF CHAPTER 30, ACT OF
FEBRUARY 16, 1938, 52 STAT. 72, 7 U.S.C. SEC. 1503, AS AMENDED.  TO
CARRY OUT THE PURPOSES OF THE ACT, THE CORPORATION, "COMMENCING WITH
THE WHEAT  ...  CROPS PLANTED FOR HARVEST IN 1945" IS EMPOWERED "TO
INSURE, UPON SUCH TERMS AND CONDITIONS NOT INCONSISTENT WITH THE
PROVISIONS OF THIS TITLE AS IT MAY DETERMINE, PRODUCERS OF WHEAT  ...
AGAINST LOSS IN YIELDS DUE TO UNAVOIDABLE CAUSES, INCLUDING DROUGHT
... "  52 STAT. 74, SEC. 508(A) AS AMENDED, 55 STAT. 255, IN TURN
AMENDED BY THE ACT OF DECEMBER 23, 1944, CHAPTER 713, 58 STAT. 918, 7
U.S.C. (SUPP. V, 1946), SEC. 1508(A).  IN PURSUANCE OF ITS AUTHORITY,
THE CORPORATION ON FEBRUARY 5, 1945, PROMULGATED ITS WHEAT CROP
INSURANCE REGULATIONS, WHICH WERE DULY PUBLISHED IN THE FEDERAL
REGISTER ON FEBRUARY 7, 1945.  10 FED. REG. 1586. 

ON MARCH 26, 1945, RESPONDENTS APPLIED LOCALLY FOR INSURANCE UNDER
THE FEDERAL CROP INSURANCE ACT TO COVER WHEAT FARMING OPERATIONS IN
BONNEVILLE COUNTY, IDAHO.  RESPONDENTS INFORMED THE BONNEVILLE COUNTY
AGRICULTURAL CONSERVATION COMMITTEE, ACTING AS AGENT FOR THE
CORPORATION, THAT THEY WERE PLANTING 460 ACRES OF SPRING WHEAT AND THAT
ON 400 OF THESE ACRES THEY WERE RESEEDING ON WINTER WHEAT ACREAGE.  THE
COMMITTEE ADVISED RESPONDENTS THAT THE ENTIRE CROP WAS INSURABLE, AND
RECOMMENDED TO THE CORPORATION'S DENVER BRANCH OFFICE ACCEPTANCE OF THE
APPLICATION.  (THE FORMAL APPLICATION ITSELF DID NOT DISCLOSE THAT ANY
PART OF THE INSURED CROP WAS RESEEDED.)  ON MAY 28, 1945, THE
CORPORATION ACCEPTED THE APPLICATION. 

IN JULY, 1945, MOST OF THE RESPONDENTS' CROP WAS DESTROYED BY
DROUGHT.  UPON BEING NOTIFIED, THE CORPORATION, AFTER DISCOVERING THAT
THE DESTROYED ACREAGE HAD BEEN RESEEDED, REFUSED TO PAY THE LOSS, AND
THIS LITIGATION WAS APPROPRIATELY BEGUN IN ONE OF THE LOWER COURTS OF
IDAHO.  THE TRIAL COURT REJECTED THE CORPORATION'S CONTENTION,
PRESENTED BY A DEMURRER TO THE COMPLAINT, THAT THE WHEAT CROP INSURANCE
REGULATIONS BARRED RECOVERY AS A MATTER OF LAW.  EVIDENCE WAS THEREUPON
PERMITTED TO GO TO THE JURY TO THE EFFECT THAT THE RESPONDENTS HAD NO
ACTUAL KNOWLEDGE OF THE REGULATIONS, INSOFAR AS THEY PRECLUDED
INSURANCE FOR RESEEDED WHEAT, AND THAT THEY HAD IN FACT BEEN MISLED BY
PETITIONER'S AGENT INTO BELIEVING THAT SPRING WHEAT RESEEDED ON WINTER
WHEAT ACREAGE WAS INSURABLE BY THE CORPORATION.  THE JURY RETURNED A
VERDICT FOR THE LOSS ON ALL THE 460 ACRES AND THE SUPREME COURT OF
IDAHO AFFIRMED THE RESULTING JUDGMENT.  67 IDAHO 196, 174 P.2D 834. 
THAT COURT IN EFFECT ADOPTED THE THEORY OF THE TRIAL JUDGE, THAT SINCE
THE KNOWLEDGE OF THE AGENT OF A PRIVATE INSURANCE COMPANY, UNDER THE
CIRCUMSTANCES OF THIS CASE, WOULD BE ATTRIBUTED TO, AND THEREBY BIND, A
PRIVATE INSURANCE COMPANY, THE CORPORATION IS EQUALLY BOUND. 

THE CASE NO DOUBT PRESENTS PHASES OF HARDSHIP.  WE TAKE FOR GRANTED
THAT, ON THE BASIS OF WHAT THEY WERE TOLD BY THE CORPORATION'S LOCAL
AGENT, THE RESPONDENTS REASONABLY BELIEVED THAT THEIR ENTIRE CROP WAS
COVERED BY PETITIONER'S INSURANCE.  AND SO WE ASSUME THAT RECOVERY
COULD BE HAD AGAINST A PRIVATE INSURANCE COMPANY.  BUT THE CORPORATION
IS NOT A PRIVATE INSURANCE COMPANY.  IT IS TOO LATE IN THE DAY TO URGE
THAT THE GOVERNMENT IS JUST ANOTHER PRIVATE LITIGANT, FOR PURPOSES OF
CHARGING IT WITH LIABILITY, WHENEVER IT TAKES OVER A BUSINESS
THERETOFORE CONDUCTED BY PRIVATE ENTERPRISE OR ENGAGES IN COMPETITION
WITH PRIVATE VENTURES.  FN1  GOVERNMENT IS NOT PARTLY PUBLIC OR PARTLY
PRIVATE, DEPENDING UPON THE GOVERNMENTAL PEDIGREE OF THE TYPE OF A
PARTICULAR ACTIVITY OR THE MANNER IN WHICH THE GOVERNMENT CONDUCTS IT.
THE GOVERNMENT MAY CARRY ON ITS OPERATIONS THROUGH CONVENTIONAL
EXECUTIVE AGENCIES OR THROUGH CORPORATE FORMS ESPECIALLY CREATED FOR
DEFINED ENDS.  SEE KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP., 306
U.S. 381, 390.  WHATEVER THE FORM IN WHICH THE GOVERNMENT FUNCTIONS,
ANYONE ENTERING INTO AN ARRANGEMENT WITH THE GOVERNMENT TAKES THE RISK
OF HAVING ACCURATELY ASCERTAINED THAT HE WHO PURPORTS TO ACT FOR THE
GOVERNMENT STAYS WITHIN THE BOUNDS OF HIS AUTHORITY.  THE SCOPE OF THIS
AUTHORITY MAY BE EXPLICITLY DEFINED BY CONGRESS OR BE LIMITED BY
DELEGATED LEGISLATION, PROPERLY EXERCISED THROUGH THE RULE-MAKING
POWER.  AND THIS IS SO EVEN THOUGH, AS HERE, THE AGENT HIMSELF MAY HAVE
BEEN UNAWARE OF THE LIMITATIONS UPON HIS AUTHORITY.  SEE, E.G., UTAH
POWER & LIGHT CO. V. UNITED STATES, 243 U.S. 389, 409; UNITED STATES V.
STEWART, 311 U.S. 60, 70, AND SEE, GENERALLY, THE FLOYD ACCEPTANCES, 7
WALL.  666. 

IF THE FEDERAL CROP INSURANCE ACT HAD BY EXPLICIT LANGUAGE PROHIBITED
THE INSURANCE OF SPRING WHEAT WHICH IS RESEEDED ON WINTER WHEAT
ACREAGE, THE IGNORANCE OF SUCH A RESTRICTION, EITHER BY THE RESPONDENTS
OR THE CORPORATION'S AGENT, WOULD BE IMMATERIAL AND RECOVERY COULD NOT
BE HAD AGAINST THE CORPORATION FOR LOSS OF SUCH RESEEDED WHEAT. 
CONGRESS COULD HARDLY DEFINE THE MULTITUDINOUS DETAILS APPROPRIATE FOR
THE BUSINESS OF CROP INSURANCE WHEN THE GOVERNMENT ENTERED IT.
INEVITABLY "THE TERMS AND CONDITIONS" UPON WHICH VALID GOVERNMENTAL
INSURANCE CAN BE HAD MUST BE DEFINED BY THE AGENCY ACTING FOR THE
GOVERNMENT.  AND SO CONGRESS HAS LEGISLATED IN THIS INSTANCE, AS IN
MODERN REGULATORY ENACTMENTS IT SO OFTEN DOES, BY CONFERRING THE RULE
MAKING POWER UPON THE AGENCY CREATED FOR CARRYING OUT ITS POLICY.  SEE
SEC. 516(B), 52 STAT. 72, 77, 7 U.S.C. SEC. 1516(B).  JUST AS EVERYONE
IS CHARGED WITH KNOWLEDGE OF THE UNITED STATES STATUTES AT LARGE,
CONGRESS HAS PROVIDED THAT THE APPEARANCE OF RULES AND REGULATIONS IN
THE FEDERAL REGISTER GIVES LEGAL NOTICE OF THEIR CONTENTS.  49 STAT.
502, 44 U.S.C. SEC. 307. 

ACCORDINGLY, THE WHEAT CROP INSURANCE REGULATIONS WERE BINDING ON ALL
WHO SOUGHT TO COME WITHIN THE FEDERAL CROP INSURANCE ACT, REGARDLESS OF
ACTUAL KNOWLEDGE OF WHAT IS IN THE REGULATIONS OR OF THE HARDSHIP
RESULTING FROM INNOCENT IGNORANCE.  THE OFT-QUOTED OBSERVATION IN ROCK
ISLAND, ARKANSAS & LOUISIANA RAILROAD CO. V. UNITED STATES, 254 U.S.
141, 143, THAT "MEN MUST TURN SQUARE CORNERS WHEN THEY DEAL WITH THE
GOVERNMENT," DOES NOT REFLECT A CALLOUS OUTLOOK.  IT MERELY EXPRESSES
THE DUTY OF ALL COURTS TO OBSERVE THE CONDITIONS DEFINED BY CONGRESS
FOR CHARGING THE PUBLIC TREASURY.  THE "TERMS AND CONDITIONS" DEFINED
BY THE CORPORATION, UNDER AUTHORITY OF CONGRESS, FOR CREATING LIABILITY
ON THE PART OF THE GOVERNMENT PRECLUDE RECOVERY FOR THE LOSS OF THE
RESEEDED WHEAT NO MATTER WITH WHAT GOOD REASON THE RESPONDENTS THOUGHT
THEY HAD OBTAINED INSURANCE FROM THE GOVERNMENT.  INDEED, NOT ONLY DO
THE WHEAT REGULATIONS LIMIT THE LIABILITY OF THE GOVERNMENT AS IF THEY
HAD BEEN ENACTED BY CONGRESS DIRECTLY, BUT THEY WERE IN FACT
INCORPORATED BY REFERENCE IN THE APPLICATION,  FN2  AS SPECIFICALLY
REQUIRED BY THE REGULATIONS.  FN3 

WE HAVE THUS FAR ASSUMED, AS DID THE PARTIES HERE AND THE COURTS
BELOW, THAT THE CONTROLLING REGULATION IN FACT PRECLUDED INSURANCE
COVERAGE FOR SPRING WHEAT RESEEDED ON WINTER WHEAT ACREAGE.  IT
EXPLICITLY STATES THAT THE TERM "WHEAT CROP SHALL NOT INCLUDE  ...
WINTER WHEAT IN THE 1945 CROP YEAR, AND SPRING WHEAT WHICH HAS BEEN
RESEEDED ON WINTER WHEAT ACREAGE IN THE 1945 CROP YEAR."  (SEC.
414.37(V) OF WHEAT CROP INSURANCE REGULATIONS, 10 FED. REG. 1591.)  THE
CIRCUMSTANCES OF THIS CASE TEMPT ONE TO READ THE REGULATION, SINCE IT
IS FOR US TO READ IT, WITH CHARITABLE LAXITY.  BUT NOT EVEN THE
TEMPTATIONS OF A HARD CASE CAN ELUDE THE CLEAR MEANING OF THE
REGULATION.  IT PRECLUDES RECOVERY FOR "SPRING WHEAT WHICH HAS BEEN
RESEEDED ON WINTER WHEAT ACREAGE IN THE 1945 CROP YEAR."  CONCERNING
THE VALIDITY OF THE REGULATION, AS "NOT INCONSISTENT WITH THE
PROVISIONS" OF THE FEDERAL CROP INSURANCE ACT, NO QUESTION HAS BEEN
RAISED. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  JUDGING FROM THE LEGISLATIVE HISTORY OF THE ACT, THE GOVERNMENT
ENGAGED IN CROP INSURANCE AS A PIONEER.  PRIVATE INSURANCE COMPANIES
APPARENTLY DEEMED ALL-RISK CROP INSURANCE TOO GREAT A COMMERCIAL
HAZARD.  SEE REPORT AND RECOMMENDATIONS OF THE PRESIDENT'S COMMITTEE ON
CROP INSURANCE, H. DOC. NO. 150, 75TH CONG., 1ST SESS., PP. 2-4, 11-12;
H.R. REP. NO. 1479, 75TH CONG., 1ST SESS., P. 2; 81 CONG. REC. 2866,
2867, 2887, 2891, 2893, 2895; HEARINGS BEFORE A SUBCOMMITTEE OF THE
SENATE COMMITTEE ON AGRICULTURE AND FORESTRY ON S. 1397, 75TH CONG.,
1ST SESS., 125, 185.  BUT THIS DOES NOT AFFECT THE LEGAL ISSUES.  IT
MERELY UNDERSCORES THE FACT THAT THE UNDERTAKING BY THE GOVERNMENT IS
NOT AN ORDINARY COMMERCIAL UNDERTAKING, AND THEREBY REENFORCES THE
CONCLUSION THAT THE RULES OF LAW WHEREBY PRIVATE INSURANCE COMPANIES
ARE RENDERED LIABLE FOR THE ACTS OF THEIR AGENTS ARE NOT BODILY
APPLICABLE TO A GOVERNMENT AGENCY LIKE THE CORPORATION, UNLESS CONGRESS
HAS SO PROVIDED. 

FN2  "H. ACCEPTANCE BY THE FEDERAL CROP INSURANCE CORPORATION.  - IT
IS UNDERSTOOD AND AGREED THAT UPON ACCEPTANCE OF THE APPLICATION BY A
DULY AUTHORIZED REPRESENTATIVE OF THE CORPORATION AS EVIDENCED BY HIS
APPROVAL BELOW, THE INSURANCE CONTRACT SHALL BE IN EFFECT, PROVIDED THE
APPLICATION HAS BEEN SUBMITTED IN ACCORDANCE WITH THE PROVISIONS OF THE
APPLICATION AND THE APPLICABLE WHEAT CROP INSURANCE REGULATIONS.  IT IS
FURTHER UNDERSTOOD AND AGREED THAT THE ACCEPTED APPLICATION AND THE
APPLICABLE WHEAT CROP INSURANCE REGULATIONS, INCLUDING ANY AMENDMENTS
THERETO, CONSTITUTE THE CONTRACT BETWEEN THE CORPORATION AND THE
INSURED." 

FN3  "SEC.  414.3 ACCEPTANCE OF APPLICATIONS BY THE CORPORATION.  (A)
UPON ACCEPTANCE OF AN APPLICATION BY A DULY AUTHORIZED REPRESENTATIVE
OF THE CORPORATION, THE INSURANCE CONTRACT SHALL BE IN EFFECT, PROVIDED
SUCH APPLICATION IS SUBMITTED IN ACCORDANCE WITH THE PROVISIONS OF THE
APPLICATION AND OF THESE REGULATIONS, INCLUDING ANY AMENDMENTS
THERETO."  10 FED. REG. 1586.  THE REGULATION DEFINED "INSURANCE
CONTRACT" AS "THE CONTRACT OF INSURANCE ENTERED INTO BETWEEN THE
APPLICANT AND THE CORPORATION BY VIRTUE OF THE APPLICATION FOR
INSURANCE AND THESE REGULATIONS AND ANY AMENDMENTS THERETO."  10 FED.
REG. 1591. 

MR. JUSTICE BLACK AND MR. JUSTICE RUTLEDGE DISSENT. 

MR. JUSTICE JACKSON, DISSENTING. 

I WOULD AFFIRM THE DECISION OF THE COURT BELOW.  IF CROP INSURANCE
CONTRACTS MADE BY AGENCIES OF THE UNITED STATES GOVERNMENT ARE TO BE
JUDGED BY THE LAW OF THE STATE IN WHICH THEY ARE WRITTEN, I FIND NO
ERROR IN THE COURT BELOW.  IF, HOWEVER, WE ARE TO HOLD THEM SUBJECT
ONLY TO FEDERAL LAW AND TO DECLARE WHAT THAT LAW IS, I CAN SEE NO
REASON WHY WE SHOULD NOT ADOPT A RULE WHICH RECOGNIZES THE
PRACTICALITIES OF THE BUSINESS. 

IT WAS EARLY DISCOVERED THAT FAIR DEALING IN THE INSURANCE BUSINESS
REQUIRED THAT THE ENTIRE CONTRACT BETWEEN THE POLICYHOLDER AND THE
INSURANCE COMPANY BE EMBODIED IN THE WRITINGS WHICH PASSED BETWEEN THE
PARTIES, NAMELY, THE WRITTEN APPLICATION, IF ANY, AND THE POLICY
ISSUED.  IT MAY BE WELL ENOUGH TO MAKE SOME TYPES OF CONTRACTS WITH THE
GOVERNMENT SUBJECT TO LONG AND INVOLVED REGULATIONS PUBLISHED IN THE
FEDERAL REGISTER.  TO MY MIND, IT IS AN ABSURDITY TO HOLD THAT EVERY
FARMER WHO INSURES HIS CROPS KNOWS WHAT THE FEDERAL REGISTER CONTAINS
OR EVEN KNOWS THAT THERE IS SUCH A PUBLICATION.  IF HE WERE TO PERUSE
THIS VOLUMINOUS AND DULL PUBLICATION AS IT IS ISSUED FROM TIME TO TIME
IN ORDER TO MAKE SURE WHETHER ANYTHING HAS BEEN PROMULGATED THAT
AFFECTS HIS RIGHTS, HE WOULD NEVER NEED CROP INSURANCE, FOR HE WOULD
NEVER GET TIME TO PLANT ANY CROPS.  NOR AM I CONVINCED THAT A READING
OF TECHNICALLY-WORDED REGULATIONS WOULD ENLIGHTEN HIM MUCH IN ANY
EVENT. 

IN THIS CASE, THE GOVERNMENT ENTERED A FIELD WHICH REQUIRED THE
ISSUANCE OF LARGE NUMBERS OF INSURANCE POLICIES TO PEOPLE ENGAGED IN
AGRICULTURE.  IT COULD NOT EXPECT THEM TO BE LAWYERS, EXCEPT IN RARE
INSTANCES, AND ONE SHOULD NOT BE EXPECTED TO HAVE TO EMPLOY A LAWYER TO
SEE WHETHER HIS OWN GOVERNMENT IS ISSUING HIM A POLICY WHICH IN CASE OF
LOSS WOULD TURN OUT TO BE NO POLICY AT ALL.  THERE WAS NO FRAUD OR
CONCEALMENT, AND THOSE WHO REPRESENTED THE GOVERNMENT IN TAKING ON THE
RISK APPARENTLY NO MORE SUSPECTED THE EXISTENCE OF A HIDDEN REGULATION
THAT WOULD RENDER THE CONTRACT VOID THAN DID THE POLICYHOLDER.  IT IS
VERY WELL TO SAY THAT THOSE WHO DEAL WITH THE GOVERNMENT SHOULD TURN
SQUARE CORNERS.  BUT THERE IS NO REASON WHY THE SQUARE CORNERS SHOULD
CONSTITUTE A ONE-WAY STREET.    THE GOVERNMENT ASKS US TO LIFT ITS
POLICIES OUT OF THE CONTROL OF THE STATES AND TO FIND OR FASHION A
FEDERAL RULE TO GOVERN THEM.  I SHOULD RESPOND TO THAT REQUEST BY
LAYING DOWN A FEDERAL RULE THAT WOULD HOLD THESE AGENCIES TO THE SAME
FUNDAMENTAL PRINCIPLES OF FAIR DEALING THAT HAVE BEEN FOUND ESSENTIAL
IN PROGRESSIVE STATES TO PREVENT INSURANCE FROM BEING AN INVESTMENT IN
DISAPPOINTMENT. 

MR. JUSTICE DOUGLAS JOINS IN THIS OPINION. 
..END :













DELGADILLO V. CARMICHAEL, 332 U.S. 388 


NO. 63.  ARGUED OCTOBER 22, 1947.  - DECIDED NOVEMBER 10, 1947.  - 159
F.2D 130, REVERSED. 


MORE THAN FIVE YEARS AFTER HE HAD ENTERED THE UNITED STATES LEGALLY,
AN ALIEN SHIPPED AS A SEAMAN ON AN AMERICAN SHIP BOUND FROM LOS ANGELES
TO NEW YORK.  THE SHIP WAS TORPEDOED AND HE WAS RESCUED AND TAKEN TO
HAVANA, WHENCE HE WAS RETURNED TO THE UNITED STATES.  HE WAS CONVICTED
OF A CRIME INVOLVING MORAL TURPITUDE COMMITTED WITHIN FIVE YEARS
THEREAFTER AND WAS SENTENCED TO IMPRISONMENT FOR A TERM OF ONE YEAR TO
LIFE.  PROCEEDINGS WERE INSTITUTED FOR HIS DEPORTATION.  HELD:  HE IS
NOT SUBJECT TO DEPORTATION, SINCE HIS RETURN TO THE UNITED STATES WAS
NOT "THE ENTRY OF THE ALIEN TO THE UNITED STATES" WITHIN THE MEANING OF
SEC. 19(A) OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, AS AMENDED.  PP.
389-391. 

DELGADILLO V. CARMICHAEL, DISTRICT DIRECTOR, IMMIGRATION AND
NATURALIZATION SERVICE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

ON A PETITION FOR A WRIT OF HABEAS CORPUS, THE DISTRICT COURT
DISCHARGED A RESIDENT ALIEN WHO WAS BEING HELD FOR DEPORTATION UNDER
SEC. 19(A) OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, AS AMENDED, 8
U.S.C. SEC. 155(A).  THE CIRCUIT COURT OF APPEALS REVERSED.  159 F.2D
130.  THIS COURT GRANTED CERTIORARI.  331 U.S. 801.  WILLIAM A.
CARMICHAEL WAS SUBSTITUTED FOR ALBERT DEL GUERCIO AS RESPONDENT.  332
U.S. 806.  REVERSED, P. 391. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS DETAINED BY RESPONDENT UNDER A DEPORTATION ORDER, THE
VALIDITY OF WHICH IS CHALLENGED BY A PETITION FOR A WRIT OF HABEAS
CORPUS.  THE DISTRICT COURT GRANTED THE PETITION AND DISCHARGED
PETITIONER.  THE CIRCUIT COURT OF APPEALS REVERSED.  159 F.2D 130.  THE
CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED
BECAUSE OF THE SEEMING CONFLICT BETWEEN THE DECISION BELOW AND DI
PASQUALE V. KARNUTH, 158 F.2D 878, FROM THE SECOND CIRCUIT COURT OF
APPEALS. 

PETITIONER IS A MEXICAN CITIZEN WHO MADE LEGAL ENTRY INTO THIS
COUNTRY IN 1923 AND RESIDED HERE CONTINUOUSLY UNTIL 1942.  IN JUNE OF
THAT YEAR, WHEN THIS NATION WAS ENGAGED IN HOSTILITIES WITH GERMANY AND
JAPAN, HE SHIPPED OUT OF LOS ANGELES ON AN INTERCOASTAL VOYAGE TO NEW
YORK CITY AS A MEMBER OF THE CREW OF AN AMERICAN MERCHANT SHIP.  THE
SHIP WAS TORPEDOED AFTER PASSING THROUGH THE PANAMA CANAL ON ITS WAY TO
NEW YORK CITY.  PETITIONER WAS RESCUED AND TAKEN TO HAVANA, CUBA, WHERE
HE WAS TAKEN CARE OF BY THE AMERICAN CONSUL FOR ABOUT ONE WEEK.  ON
JULY 19, 1942, HE WAS RETURNED TO THE UNITED STATES THROUGH MIAMI,
FLORIDA, AND THEREAFTER CONTINUED TO SERVE AS A SEAMAN IN THE MERCHANT
FLEET OF THIS NATION.  IN MARCH 1944 HE WAS CONVICTED IN CALIFORNIA OF
SECOND-DEGREE ROBBERY AND SENTENCED TO IMPRISONMENT FOR A TERM OF ONE
YEAR TO LIFE.  WHILE HE WAS CONFINED IN THE CALIFORNIA PRISON,
PROCEEDINGS FOR DEPORTATION WERE COMMENCED AGAINST HIM UNDER SEC. 19(A)
OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917, 39 STAT. 874, AS AMENDED 54
STAT. 671, 8 U.S.C. SEC. 155(A). 

THAT SECTION PROVIDES IN PART: 

"  ...  ANY ALIEN WHO IS HEREAFTER SENTENCED TO IMPRISONMENT FOR A
TERM OF ONE YEAR OR MORE BECAUSE OF CONVICTION IN THIS COUNTRY OF A
CRIME INVOLVING MORAL TURPITUDE, COMMITTED WITHIN FIVE YEARS AFTER THE
ENTRY OF THE ALIEN TO THE UNITED STATES  ...  SHALL, UPON THE WARRANT
OF THE ATTORNEY GENERAL, BE TAKEN INTO CUSTODY AND DEPORTED.  ...  " 

THOSE REQUIREMENTS FOR DEPORTATION ARE SATISFIED IF PETITIONER'S
PASSAGE FROM HAVANA, CUBA, TO MIAMI, FLORIDA, ON JULY 19, 1942, WAS
"THE ENTRY OF THE ALIEN TO THE UNITED STATES" WITHIN THE MEANING OF THE
ACT. 

IN UNITED STATES EX REL. CLAUSSEN V. DAY, 279 U.S. 398, UNITED STATES
EX REL. STAPF V. CORSI, 287 U.S. 129, AND UNITED STATES EX REL. VOLPE
V. SMITH, 289 U.S. 422, THERE IS LANGUAGE WHICH TAKEN FROM ITS CONTEXT
SUGGESTS THAT EVERY RETURN OF AN ALIEN FROM A FOREIGN COUNTRY TO THE
UNITED STATES CONSTITUTES AN "ENTRY" WITHIN THE MEANING OF THE ACT. 
THUS IN THE SMITH CASE IT WAS STATED, 289 U.S. P. 425, THAT "ANY COMING
OF AN ALIEN FROM A FOREIGN COUNTRY INTO THE UNITED STATES WHETHER SUCH
COMING BE THE FIRST OR ANY SUBSEQUENT ONE" IS SUCH AN "ENTRY."  BUT
THOSE WERE CASES WHERE THE ALIEN PLAINLY EXPECTED OR PLANNED TO ENTER A
FOREIGN PORT OR PLACE.  HERE HE WAS CATAPULTED INTO THE OCEAN, RESCUED,
AND TAKEN TO CUBA.  HE HAD NO PART IN SELECTING THE FOREIGN PORT AS HIS
DESTINATION.  HIS ITINERARY WAS FORCED ON HIM BY WHOLLY FORTUITOUS
CIRCUMSTANCES.  IF, NONETHELESS, HIS RETURN TO THIS COUNTRY WAS AN
"ENTRY" INTO THE UNITED STATES WITHIN THE MEANING OF THE ACT, THE LAW
HAS BEEN GIVEN A CAPRICIOUS APPLICATION AS DI PASQUALE V. KARNUTH,
SUPRA, SUGGESTS. 

IN THAT CASE AN ALIEN TRAVELED BETWEEN BUFFALO AND DETROIT ON A
RAILROAD WHICH, UNKNOWN TO HIM, PASSED THROUGH CANADA.  HE WAS ASLEEP
DURING THE TIME HE WAS IN TRANSIT THROUGH CANADA AND WAS QUITE UNAWARE
THAT HE HAD LEFT OR RETURNED TO THIS COUNTRY.  THE COURT REFUSED TO
HOLD THAT THE ALIEN HAD MADE AN "ENTRY," FOR TO DO SO WOULD IMPUTE TO
CONGRESS A PURPOSE TO SUBJECT ALIENS "TO THE SPORT OF CHANCE."  158
F.2D 879.  IN THIS CASE PETITIONER, OF COURSE, CHOSE TO RETURN TO THIS
COUNTRY, KNOWING HE WAS IN A FOREIGN PLACE.  BUT THE EXIGENCIES OF WAR,
NOT HIS VOLUNTARY ACT, PUT HIM ON FOREIGN SOIL.  FN1  IT WOULD INDEED
BE HARSH TO READ THE STATUTE SO AS TO ADD THE PERIL OF DEPORTATION TO
SUCH PERILS OF THE SEA.  WE MIGHT AS WELL HOLD THAT IF HE HAD BEEN
KIDNAPPED AND TAKEN TO CUBA, HE MADE A STATUTORY "ENTRY" ON HIS
VOLUNTARY RETURN.  RESPECT FOR LAW DOES NOT THRIVE ON CAPTIOUS
INTERPRETATIONS. 

DEPORTATION CAN BE THE EQUIVALENT OF BANISHMENT OR EXILE.  SEE
BRIDGES V. WIXON, 326 U.S. 135, 147.  THE STAKES ARE INDEED HIGH AND
MOMENTOUS FOR THE ALIEN WHO HAS ACQUIRED HIS RESIDENCE HERE.  WE WILL
NOT ATTRIBUTE TO CONGRESS A PURPOSE TO MAKE HIS RIGHT TO REMAIN HERE
DEPENDENT ON CIRCUMSTANCES SO FORTUITOUS AND CAPRICIOUS AS THOSE UPON
WHICH THE IMMIGRATION SERVICE HAS HERE SEIZED.  THE HAZARDS TO WHICH WE
ARE NOW ASKED TO SUBJECT THE ALIEN ARE TOO IRRATIONAL TO SQUARE WITH
THE STATUTORY SCHEME. 

OTHER GROUNDS ARE NOW SOUGHT TO BE ADVANCED FOR THE FIRST TIME IN
SUPPORT OF THE DEPORTATION ORDER.  THEY ARE NOT OPEN ON THE RECORD
BEFORE US.  REVERSED. 

FN1  IF HIS INTERCOASTAL VOYAGE HAD CONTINUED WITHOUT INTERRUPTION,
IT IS CLEAR THAT HE WOULD NOT HAVE MADE AN "ENTRY" WHEN HE LANDED AT
ITS TERMINATION.  UNITED STATES EX REL. CLAUSSEN V. DAY, SUPRA, P.
401. 
..END :



















INTERNATIONAL SALT CO. V. U.S., 332 U.S. 392 


NO. 46.  ARGUED OCTOBER 16, 1947.  - DECIDED NOVEMBER 10, 1947.  - 6
F.R.D. 302, AFFIRMED. 


1.  IT IS VIOLATIVE PER SE OF SEC. 1 OF THE SHERMAN ACT AND SEC. 3 OF
THE CLAYTON ACT FOR A CORPORATION ENGAGED IN INTERSTATE COMMERCE IN
SALT, OF WHICH IT IS THE COUNTRY'S LARGEST PRODUCER FOR INDUSTRIAL
USES, AND WHICH ALSO OWNS PATENTS ON MACHINES FOR UTILIZATION OF SALT
PRODUCTS, TO REQUIRE LESSEES OF SUCH MACHINES TO USE ONLY THE
CORPORATION'S UNPATENTED PRODUCTS IN THEM.  PP. 394-396. 

2.  THE DEFENDANT IN A CIVIL ACTION TO ENJOIN VIOLATIONS OF SEC. 1 OF
THE SHERMAN ACT AND SEC. 3 OF THE CLAYTON ACT HAVING ADMITTED PRACTICES
WHICH WERE UNLAWFUL AND UNREASONABLE PER SE, THE DISTRICT COURT WAS
JUSTIFIED IN GRANTING SUMMARY JUDGMENT UNDER RULE 56 OF THE RULES OF
CIVIL PROCEDURE.  P. 396. 

3.  AGREEMENTS WHICH "TEND TO CREATE A MONOPOLY" BEING FORBIDDEN, IT
IS IMMATERIAL THAT THE TENDENCY IS A CREEPING ONE RATHER THAN ONE THAT
PROCEEDS AT FULL GALLOP; NOR DOES THE LAW AWAIT ARRIVAL AT THE GOAL
BEFORE CONDEMNING THE DIRECTION OF THE MOVEMENT.  P. 396. 

4.  A REQUIREMENT IN A LEASE OF PATENTED MACHINES THAT THE LESSEE USE
ONLY THE LESSOR'S UNPATENTED PRODUCTS IN THEM IS NOT SAVED FROM
UNREASONABLENESS AND FROM THE TENDENCY TO MONOPOLY BY PROVISIONS
ENTITLING THE LESSEE TO THE BENEFIT OF ANY GENERAL PRICE REDUCTION IN
THE LESSOR'S PRODUCTS AND PERMITTING THE LESSEE TO PURCHASE THE
PRODUCTS IN THE OPEN MARKET IF THE LESSOR FAILS TO FURNISH THEM AT A
PRICE EQUAL TO THE LOWEST PRICE OFFERED BY ANY COMPETITOR.  PP. 396
397. 

5.  RULES FOR USE OF LEASED MACHINERY MUST NOT BE DISGUISED
RESTRAINTS OF FREE COMPETITION, THOUGH THEY MAY SET REASONABLE
STANDARDS WHICH ALL SUPPLIERS MUST MEET.  PP. 397-398. 

6.  THE FACT THAT THEY HAVE NOT BEEN INCLUDED IN ALL LEASES AND HAVE
NOT ALWAYS BEEN ENFORCED WHEN INCLUDED DOES NOT JUSTIFY THE GENERAL USE
OF CLAUSES REQUIRING LESSEES OF PATENTED MACHINES TO USE THE LESSOR'S
UNPATENTED PRODUCTS THEREIN.  P. 398. 

7.  IN ENJOINING THE PRACTICE OF LEASING PATENTED MACHINES ON
CONDITION THAT THE LESSEES WOULD USE ONLY THE LESSOR'S UNPATENTED
PRODUCTS IN THEM, IT WAS NOT IMPROPER FOR THE DISTRICT COURT TO INCLUDE
A REQUIREMENT THAT SUCH MACHINES BE LEASED, SOLD OR LICENSED TO ALL
APPLICANTS ON NON-DISCRIMINATORY TERMS AND CONDITIONS - ESPECIALLY
WHERE THE COURT RETAINED JURISDICTION TO CONSIDER APPLICATIONS FOR THE
AMENDMENT, MODIFICATION OR TERMINATION OF ANY PROVISION OF THE DECREE. 
PP. 398-402. 

INTERNATIONAL SALT CO., INC. V. UNITED STATES. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT UNDER RULE 56 OF THE
RULES OF CIVIL PROCEDURE, THE DISTRICT COURT ENJOINED VIOLATIONS OF
SEC. 1 OF THE SHERMAN ACT AND SEC. 3 OF THE CLAYTON ACT.  6 F.R.D.
302.  ON DIRECT APPEAL TO THIS COURT, AFFIRMED, P. 402. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE GOVERNMENT BROUGHT THIS CIVIL ACTION TO ENJOIN THE INTERNATIONAL
SALT COMPANY, APPELLANT HERE, FROM CARRYING OUT PROVISIONS OF THE
LEASES OF ITS PATENTED MACHINES TO THE EFFECT THAT LESSEES WOULD USE
THEREIN ONLY INTERNATIONAL'S SALT PRODUCTS.  THE RESTRICTION IS ALLEGED
TO VIOLATE LATE SEC. 1 OF THE SHERMAN ACT,  FN1  AND SEC. 3 OF THE
CLAYTON ACT.  FN2  UPON APPELLANT'S ANSWER AND ADMISSIONS OF FACT, THE
GOVERNMENT MOVED FOR SUMMARY JUDGMENT UNDER RULE 56 OF THE RULES OF
CIVIL PROCEDURE, UPON THE GROUND THAT NO ISSUE AS TO A MATERIAL FACT
WAS PRESENTED AND THAT, ON THE ADMISSIONS, JUDGMENT FOLLOWED AS MATTER
OF LAW.  NEITHER PARTY SUBMITTED AFFIDAVITS.  JUDGMENT WAS GRANTED  FN3
AND APPEAL WAS TAKEN DIRECTLY TO THIS COURT.  FN4 

IT WAS ESTABLISHED BY PLEADINGS OR ADMISSIONS THAT THE INTERNATIONAL
SALT COMPANY IS ENGAGED IN INTERSTATE COMMERCE IN SALT, OF WHICH IT IS
THE COUNTRY'S LARGEST PRODUCER FOR INDUSTRIAL USES.  IT ALSO OWNS
PATENTS ON TWO MACHINES FOR UTILIZATION OF SALT PRODUCTS.  ONE, THE
"LIXATOR," DISSOLVES ROCK SALT INTO A BRINE USED IN VARIOUS INDUSTRIAL
PROCESSES.  THE OTHER, THE "SALTOMAT," INJECTS SALT, IN TABLET FORM,
INTO CANNED PRODUCTS DURING THE CANNING PROCESS.  THE PRINCIPAL
DISTRIBUTION OF EACH OF THESE MACHINES IS UNDER LEASES WHICH, AMONG
OTHER THINGS, REQUIRE THE LESSEES TO PURCHASE FROM APPELLANT ALL
UNPATENTED SALT AND SALT TABLETS CONSUMED IN THE LEASED MACHINES. 

APPELLANT HAD OUTSTANDING 790 LEASES OF AN EQUAL NUMBER OF
"LIXATORS," ALL OF WHICH LEASES WERE ON APPELLANT'S STANDARD FORM
CONTAINING THE TYING CLAUSE  FN5  AND OTHER STANDARD PROVISIONS; OF 50
OTHER LEASES WHICH SOMEWHAT VARIED THE TERMS, ALL BUT 4 CONTAINED THE
TYING CLAUSE.  IT ALSO HAD IN EFFECT 73 LEASES OF 96 "SALTOMATS," ALL
CONTAINING THE RESTRICTIVE CLAUSE.  FN6  IN 1944, APPELLANT SOLD
APPROXIMATELY 119,000 TONS OF SALT, FOR ABOUT $500,000, FOR USE IN
THESE MACHINES. 

THE APPELLANT'S PATENTS CONFER A LIMITED MONOPOLY OF THE INVENTION
THEY REWARD.  FROM THEM APPELLANT DERIVES A RIGHT TO RESTRAIN OTHERS
FROM MAKING, VENDING OR USING THE PATENTED MACHINES.  BUT THE PATENTS
CONFER NO RIGHT TO RESTRAIN USE OF, OR TRADE IN, UNPATENTED SALT.  BY
CONTRACTING TO CLOSE THIS MARKET FOR SALT AGAINST COMPETITION,
INTERNATIONAL HAS ENGAGED IN A RESTRAINT OF TRADE FOR WHICH ITS PATENTS
AFFORD NO IMMUNITY FROM THE ANTITRUST LAWS.  MORTON SALT CO. V. G.S.
SUPPIGER CO., 314 U.S. 488; MERCOID CORP. V. MID-CONTINENT INVESTMENT
CO., 320 U.S. 661; MERCOID CORP. V. MINNEAPOLIS-HONEYWELL CO., 320 U.S.
680. 

APPELLANT CONTENDS, HOWEVER, THAT SUMMARY JUDGMENT WAS UNAUTHORIZED
BECAUSE IT PRECLUDED TRIAL OF ALLEGED ISSUES OF FACT AS TO WHETHER THE
RESTRAINT WAS UNREASONABLE WITHIN THE SHERMAN ACT OR SUBSTANTIALLY
LESSENED COMPETITION OR TENDED TO CREATE A MONOPOLY IN SALT WITHIN THE
CLAYTON ACT.  WE THINK THE ADMITTED FACTS LEFT NO GENUINE ISSUE.  NOT
ONLY IS PRICE-FIXING UNREASONABLE, PER SE, UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S. 150; UNITED STATES V. TRENTON POTTERIES CO.,
273 U.S. 392, BUT ALSO IT IS UNREASONABLE, PER SE, TO FORECLOSE
COMPETITORS FROM ANY SUBSTANTIAL MARKET.  FASHION ORIGINATORS GUILD V.
FEDERAL TRADE COMMISSION, 114 F.2D 80, AFFIRMED, 312 U.S. 457.  THE
VOLUME OF BUSINESS AFFECTED BY THESE CONTRACTS CANNOT BE SAID TO BE
INSIGNIFICANT OR INSUBSTANTIAL AND THE TENDENCY OF THE ARRANGEMENT TO
ACCOMPLISHMENT OF MONOPOLY SEEMS OBVIOUS.  UNDER THE LAW, AGREEMENTS
ARE FORBIDDEN WHICH "TEND TO CREATE A MONOPOLY," AND IT IS IMMATERIAL
THAT THE TENDENCY IS A CREEPING ONE RATHER THAN ONE THAT PROCEEDS AT
FULL GALLOP; NOR DOES THE LAW AWAIT ARRIVAL AT THE GOAL BEFORE
CONDEMNING THE DIRECTION OF THE MOVEMENT. 

APPELLANT CONTENDS, HOWEVER, THAT THE "LIXATOR" CONTRACTS ARE SAVED
FROM UNREASONABLENESS AND FROM THE TENDENCY TO MONOPOLY BECAUSE THEY
PROVIDED THAT IF ANY COMPETITOR OFFERED SALT OF EQUAL GRADE AT A LOWER
PRICE, THE LESSEE SHOULD BE FREE TO BUY IN THE OPEN MARKET, UNLESS
APPELLANT WOULD FURNISH THE SALT AT AN EQUAL PRICE; AND THE "SALTOMAT"
AGREEMENTS PROVIDED THAT THE LESSEE WAS ENTITLED TO THE BENEFIT OF ANY
GENERAL PRICE REDUCTION IN LESSOR'S SALT TABLETS.  THE "LIXATOR"
PROVISION DOES, OF COURSE, AFFORD A MEASURE OF PROTECTION TO THE
LESSEE, BUT IT DOES NOT AVOID THE STIFLING EFFECT OF THE AGREEMENT ON
COMPETITION.  THE APPELLANT HAD AT ALL TIMES A PRIORITY ON THE BUSINESS
AT EQUAL PRICES.  A COMPETITOR WOULD HAVE TO UNDERCUT APPELLANT'S PRICE
TO HAVE ANY HOPE OF CAPTURING THE MARKET, WHILE APPELLANT COULD HOLD
THAT MARKET BY MERELY MEETING COMPETITION.  WE DO NOT THINK THIS
CONCESSION RELIEVES THE CONTRACT OF BEING A RESTRAINT OF TRADE, ALBEIT
A LESS HARSH ONE THAN WOULD RESULT IN THE ABSENCE OF SUCH A PROVISION. 
THE "SALTOMAT" PROVISION OBVIOUSLY HAS NO EFFECT OF LEGAL SIGNIFICANCE
SINCE IT GIVES THE LESSEE NOTHING MORE THAN A RIGHT TO BUY APPELLANT'S
SALT TABLETS AT APPELLANT'S GOING PRICE.  ALL PURCHASES MUST IN ANY
EVENT BE OF APPELLANT'S PRODUCT. 

APPELLANT ALSO URGES THAT SINCE UNDER THE LEASES IT REMAINED UNDER AN
OBLIGATION TO REPAIR AND MAINTAIN THE MACHINES, IT WAS REASONABLE TO
CONFINE THEIR USE TO ITS OWN SALT BECAUSE ITS HIGH QUALITY ASSURED
SATISFACTORY FUNCTIONING AND LOW MAINTENANCE COST.  THE APPELLANT'S
ROCK SALT IS ALLEGED TO HAVE AN AVERAGE SODIUM CHLORIDE CONTENT OF
98.2%.  ROCK SALT OF OTHER PRODUCERS, IT IS SAID, "DOES NOT RUN
CONSISTENT IN SODIUM CHLORIDE CONTENT AND IN MANY INSTANCES RUNS AS LOW
AS 95% OF SODIUM CHLORIDE."  THIS GREATER PERCENTAGE OF INSOLUBLE
IMPURITIES ALLEGEDLY DISTURBS THE FUNCTIONING OF THE "LIXATOR"
MACHINE.  A SOMEWHAT SIMILAR CLAIM IS PLEADED AS TO THE "SALTOMAT." 

OF COURSE, A LESSOR MAY IMPOSE ON A LESSEE REASONABLE RESTRICTIONS
DESIGNED IN GOOD FAITH TO MINIMIZE MAINTENANCE BURDENS AND TO ASSURE
SATISFACTORY OPERATION.  WE MAY ASSUME, AS MATTER OF ARGUMENT, THAT IF
THE "LIXATOR" FUNCTIONS BEST ON ROCK SALT OF AVERAGE SODIUM CHLORIDE
CONTENT OF 98.2%, THE LESSEE MIGHT BE REQUIRED TO USE ONLY SALT MEETING
SUCH A SPECIFICATION OF QUALITY.  BUT IT IS NOT PLEADED, NOR IS IT
ARGUED, THAT THE MACHINE IS ALLERGIC TO SALT OF EQUAL QUALITY PRODUCED
BY ANYONE EXCEPT INTERNATIONAL.  IF OTHERS CANNOT PRODUCE SALT EQUAL TO
REASONABLE SPECIFICATIONS FOR MACHINE USE, IT IS ONE THING; BUT IT IS
ADMITTED THAT, AT TIMES, AT LEAST, COMPETITORS DO OFFER SUCH A
PRODUCT.  THEY ARE, HOWEVER, SHUT OUT OF THE MARKET BY A PROVISION THAT
LIMITS IT, NOT IN TERMS OF QUALITY, BUT IN TERMS OF A PARTICULAR
VENDOR.  RULES FOR USE OF LEASED MACHINERY MUST NOT BE DISGUISED
RESTRAINTS OF FREE COMPETITION, THOUGH THEY MAY SET REASONABLE
STANDARDS WHICH ALL SUPPLIERS MUST MEET.  CF. INTERNATIONAL BUSINESS
MACHINES CORP. V. UNITED STATES, 298 U.S. 131. 

APPELLANT URGES OTHER OBJECTIONS TO THE SUMMARY JUDGMENT.  THE TYING
CLAUSE HAS NOT BEEN INSISTED UPON IN ALL LEASES, NOR HAS IT ALWAYS BEEN
ENFORCED WHEN IT WAS INCLUDED.  BUT THESE FACTS DO NOT JUSTIFY THE
GENERAL USE OF THE RESTRICTION WHICH HAS BEEN ADMITTED HERE. 

THE APPELLANT ALSO STRONGLY OBJECTS TO THE PROVISIONS OF THE SIXTH
PARAGRAPH OF THE DECREE.  FN7 APPELLANT DENIES THE NECESSITY FOR SUCH
PROVISION AND IT IS TRUE THAT THE RECORD DISCLOSES NO THREAT TO
DISCRIMINATE AFTER THE JUDGMENT OF THE COURT IS PRONOUNCED.  IT ALSO
SUGGESTS THAT WE MODIFY THE JUDGMENT TO ACCEPT A PROPOSED ALTERNATIVE
PROVISION  FN8  SIMILAR TO ONE IT SAYS IT URGED UPON THE DISTRICT
COURT, WHICH REJECTED IT.  THE RECORD DOES NOT SHOW WHAT PROCEEDINGS
WERE HAD BETWEEN RENDERING OF THE COURT'S OPINION AND SIGNING OF THE
DECREE. 

THE SPECIFIC GROUND OF OBJECTION RAISED BY APPELLANT TO PARAGRAPH
SIXTH IS THAT INTERNATIONAL MAY FIND IT NECESSARY IN SOME SECTIONS OF
THE COUNTRY TO REDUCE THE RENTAL RATES OF THE MACHINES IN ORDER THAT
ITS MACHINES MAY COMPETE WITH THOSE OF OTHERS.  OF COURSE, THE CLAYTON
ACT ITSELF FN9  PERMITS ONE CHARGED WITH PRICE DISCRIMINATION TO SHOW
THAT HE LOWERED HIS PRICE IN GOOD FAITH TO MEET COMPETITION. 
OBVIOUSLY, THE DISTRICT COURT WAS NOT INTENDING TO PREVENT COMPETITION
OR TO DISABLE THE APPELLANT FROM MEETING OR OFFERING IT. THE
GOVERNMENT, TOO, SAYS IT WOULD NOT OPPOSE PERMITTING A LOWER PRICE TO
MEET, IN GOOD FAITH, THE EQUALLY LOW PRICE OF A COMPETITOR IF THE NEED
AROSE. 

THE SHORT OF THE CONTENTION IS THAT SINCE THE COMPANY NEVER HAS
THREATENED TO VIOLATE ANY DECREE ENTERED IN THIS CASE TO RESTRAIN
FUTURE USE OF THE ILLEGAL LEASES, IT FEELS THAT THE PROVISION
INVALIDATING THE OBJECTIONABLE LEASES SHOULD END THE MATTER AND THAT,
AS TO ANY ADDITIONAL PROVISIONS, APPELLANT IS ENTITLED TO STAND BEFORE
THE COURT IN THE SAME POSITION AS ONE WHO HAS NEVER VIOLATED THE LAW AT
ALL - THAT THE INJUNCTION SHOULD GO NO FARTHER THAN THE VIOLATION OR
THREAT OF VIOLATION.  WE CANNOT AGREE THAT THE CONSEQUENCES OF PROVED
VIOLATIONS ARE SO LIMITED.  THE FACT IS ESTABLISHED THAT THE APPELLANT
ALREADY HAS WEDGED ITSELF INTO THIS SALT MARKET BY METHODS FORBIDDEN BY
LAW.  THE DISTRICT COURT IS NOT OBLIGED TO ASSUME, CONTRARY TO COMMON
EXPERIENCE, THAT A VIOLATOR OF THE ANTITRUST LAWS WILL RELINQUISH THE
FRUITS OF HIS VIOLATION MORE COMPLETELY THAN THE COURT REQUIRES HIM TO
DO.  AND ADVANTAGES ALREADY IN HAND MAY BE HELD BY METHODS MORE SUBTLE
AND INFORMED, AND MORE DIFFICULT TO PROVE, THAN THOSE WHICH, IN THE
FIRST PLACE, WIN A MARKET.  WHEN THE PURPOSE TO RESTRAIN TRADE APPEARS
FROM A CLEAR VIOLATION OF LAW, IT IS NOT NECESSARY THAT ALL OF THE
UNTRAVELED ROADS TO THAT END BE LEFT OPEN AND THAT ONLY THE WORN ONE BE
CLOSED.  THE USUAL WAYS TO THE PROHIBITED GOAL MAY BE BLOCKED AGAINST
THE PROVEN TRANSGRESSOR AND THE BURDEN PUT UPON HIM TO BRING ANY PROPER
CLAIMS FOR RELIEF TO THE COURT'S ATTENTION.  AND IT IS DESIRABLE, IN
THE INTERESTS OF THE COURT AND OF BOTH LITIGANTS, THAT THE DECREE BE AS
SPECIFIC AS POSSIBLE, NOT ONLY IN THE CORE OF ITS RELIEF, BUT IN ITS
OUTWARD LIMITS, SO THAT PARTIES MAY KNOW THEIR DUTIES AND UNINTENDED
CONTEMPTS MAY NOT OCCUR. 

THE FRAMING OF DECREES SHOULD TAKE PLACE IN THE DISTRICT RATHER THAN
IN APPELLATE COURTS.  FN10 THEY ARE INVESTED WITH LARGE DISCRETION TO
MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE PARTICULAR CASE. 
UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 185; UNITED
STATES V. NATIONAL LEAD CO., 332 U.S. 319.  IN AN EQUITY SUIT, THE END
TO BE SERVED IS NOT PUNISHMENT OF PAST TRANSGRESSION, NOR IS IT MERELY
TO END SPECIFIC ILLEGAL PRACTICES.  A PUBLIC INTEREST SERVED BY SUCH
CIVIL SUITS IS THAT THEY EFFECTIVELY PRY OPEN TO COMPETITION A MARKET
THAT HAS BEEN CLOSED BY DEFENDANTS' ILLEGAL RESTRAINTS.  IF THIS DECREE
ACCOMPLISHES LESS THAN THAT, THE GOVERNMENT HAS WON A LAWSUIT AND LOST
A CAUSE. 

THE DISTRICT COURT HAS RETAINED JURISDICTION, BY THE TERMS OF ITS
JUDGMENT, FOR THE PURPOSE OF "ENABLING ANY OF THE PARTIES  ...  TO
APPLY TO THE COURT AT ANY TIME FOR SUCH FURTHER ORDERS AND DIRECTIONS
AS MAY BE NECESSARY OR APPROPRIATE FOR THE CONSTRUCTION OR CARRYING OUT
OF THIS JUDGMENT" AND "FOR THE AMENDMENT, MODIFICATIONS OR TERMINATION
OF ANY OF THE PROVISIONS  ...  " WE THINK IT WOULD NOT BE GOOD JUDICIAL
ADMINISTRATION TO STRIKE PARAGRAPH VI FROM THE JUDGMENT TO MEET A
HYPOTHETICAL SITUATION WHEN THE DISTRICT COURT HAS PURPOSELY LEFT THE
WAY OPEN TO REMEDY ANY SUCH SITUATIONS IF AND WHEN THE NEED ARISES. 
THE FACTUAL BASIS OF THE CLAIM FOR MODIFICATION SHOULD APPEAR IN
EVIDENTIARY FORM BEFORE THE DISTRICT COURT RATHER THAN IN THE
ARGUMENTATIVE FORM IN WHICH IT IS BEFORE US.  NOR ARE WE IMPRESSED THAT
THIS WILL REQUIRE A MULTITUDE OF SEPARATE APPLICATIONS.  ONCE THE
CONCRETE PROBLEM IS BEFORE THE DISTRICT COURT IT WILL NO DOUBT BE ABLE
TO FASHION A PROVISION THAT WILL AVOID REPETITIOUS APPLICATIONS WHICH
WOULD BE AS VEXATIOUS TO THE COURT AS TO THE LITIGANTS.  WE LEAVE THE
APPELLANT TO PROPER APPLICATION TO THE COURT BELOW AND DENY THE RELIEF
HERE, UPON THE PRESENT STATE OF THE RECORD, WITHOUT PREJUDICE. 
JUDGMENT AFFIRMED. 

FN1  26 STAT. 209, SEC. 1, 15 U.S.C. SEC. 1. 

FN2  38 STAT. 730, SEC. 3, 15 U.S.C. SEC. 14. 

FN3  6 F.R.D. 302. 

FN4  PROBABLE JURISDICTION NOTED APRIL 28, 1947. 

FN5  "IT IS FURTHER MUTUALLY AGREED THAT THE SAID LIXATE PROCESS
DISSOLVER SHALL BE INSTALLED BY AND AT THE EXPENSE OF SAID LESSEE AND
SHALL BE MAINTAINED AND KEPT IN REPAIR DURING THE TERM OF THIS LEASE BY
AND AT THE EXPENSE OF SAID LESSEE; THAT THE SAID LIXATE PROCESS
DISSOLVER SHALL BE USED FOR DISSOLVING AND CONVERTING INTO BRINE ONLY
THOSE GRADES OF ROCK SALT PURCHASED BY THE LESSEE FROM THE LESSOR AT
PRICES AND UPON TERMS AND CONDITIONS HEREAFTER AGREED UPON, PROVIDED: 

"IF AT ANY TIME DURING THE TERM OF THIS LEASE A GENERAL REDUCTION IN
PRICE OF GRADES OF SALT SUITABLE FOR USE IN THE SAID LIXATE PROCESS
DISSOLVER SHALL BE MADE, SAID LESSEE SHALL GIVE SAID LESSOR AN
OPPORTUNITY TO PROVIDE A COMPETITIVE GRADE OF SALT AT ANY SUCH
COMPETITIVE PRICE QUOTED, AND IN CASE SAID LESSOR SHALL FAIL OR BE
UNABLE TO DO SO, SAID LESSEE, UPON CONTINUED PAYMENT OF THE RENTAL
HEREIN AGREED UPON, SHALL HAVE THE PRIVILEGE OF CONTINUED USE OF THE
SAID EQUIPMENT WITH SALT PURCHASED IN THE OPEN MARKET, UNTIL SUCH TIME
AS SAID LESSOR SHALL FURNISH A SUITABLE GRADE OF SALT AT THE SAID
COMPETITIVE PRICE."    IT FURTHER PROVIDES AS FOLLOWS: 

"  ...  SHOULD SAID LESSEE FAIL TO PAY PROMPTLY THE AFORESAID RENTAL,
OR SHALL AT ANY TIME DISCONTINUE PURCHASING ITS REQUIREMENTS OF SALT
FROM SAID LESSOR, OR OTHERWISE BREACH ANY OF THE TERMS AND CONDITIONS
OF THIS LEASE, SAID LESSOR SHALL HAVE THE RIGHT, UPON 30 DAYS' WRITTEN
NOTICE OF INTENTION TO DO SO, TO REMOVE THE SAID LIXATE PROCESS
DISSOLVER FROM THE POSSESSION OF SAID LESSEE." 

FN6  "IT IS FURTHER MUTUALLY AGREED THAT THE SAID SALT TABLET
DEPOSITORS) SHALL BE INSTALLED AND MAINTAINED IN GOOD CONDITION DURING
THE TERM OF THIS LEASE:  THAT THE SAID SALT TABLET DEPOSITORS) SHALL BE
USED ONLY IN CONJUNCTION WITH SALT TABLETS SOLD OR MANUFACTURED BY THE
LESSOR, AND THAT THE LESSEE SHALL PURCHASE FROM THE LESSOR, OR ITS
AGENT, SALT TABLETS FOR USE IN THE SALT TABLET DEPOSITORS) AT PRICES
AND UPON TERMS AND CONDITIONS HEREINAFTER AGREED UPON, PROVIDED:  IF,
AT ANY TIME DURING THE TERM OF THIS LEASE, A GENERAL REDUCTION IN
LESSOR'S PRICE OF SALT TABLETS SUITABLE FOR USE IN THE DEPOSITORS)
SHALL BE MADE, SAID LESSOR SHALL PROVIDE SAID LESSEE WITH SALT TABLETS
AT A LIKE PRICE." 

THE LEASE FURTHER PROVIDES: 

"  ...  SHOULD LESSEE FAIL TO PAY PROMPTLY THE AFORESAID RENTAL, OR
AT ANY TIME DISCONTINUE PURCHASING ITS REQUIREMENTS OF SALT TABLETS FOR
SAID SALT TABLET DEPOSITORS) FROM SAID LESSOR, OR ITS AGENT, OR
OTHERWISE BREACH ANY OF THE TERMS AND CONDITIONS OF THIS LEASE, SAID
LESSOR SHALL HAVE THE RIGHT, UPON TEN DAYS' WRITTEN NOTICE OF INTENTION
TO DO SO, TO REMOVE THE SAID SALT TABLET DEPOSITORS) FROM THE PREMISES
AND/OR POSSESSION OF SAID LESSEE." 

FN7  "DEFENDANT INTERNATIONAL SALT IS DIRECTED TO OFFER TO LEASE OR
SELL OR LICENSE THE USE OF THE LIXATOR OR SALTOMAT MACHINES, OR ANY
OTHER MACHINE WHICH IS THEN BEING OR ABOUT TO BE OFFERED OR SHALL HAVE
BEEN OFFERED BY SUCH DEFENDANT IN THE UNITED STATES EMBODYING
INVENTIONS COVERED BY ANY OF THE PATENTS REFERRED TO IN PARAGRAPH II
HEREOF, TO ANY APPLICANT ON NON-DISCRIMINATORY TERMS AND CONDITIONS;
PROVIDED THAT 

"(A)  A MACHINE OR MACHINES IS OR ARE AVAILABLE FOR SUCH PURPOSES
AND 

"(B)  DEFENDANT SHALL NOT BE REQUIRED TO MAKE SUCH OFFER UNLESS IT IS
OFFERING, ABOUT TO OFFER, OR HAS OFFERED SUCH MACHINES FOR LEASE OR
SALE OR LICENSE WITHIN THE UNITED STATES AND AT ANY TIME THE DEFENDANT
MAY DISCONTINUE THE BUSINESS OF RENTING OR SELLING OR LICENSING THE USE
OF SUCH MACHINES; AND 

"(C)  SUCH SALE OR LEASE OR LICENSE IS NOT REQUIRED TO BE MADE
WITHOUT CASH PAYMENT OR SECURITY TO ANY PERSON NOT HAVING PROPER CREDIT
RATING, AND 

"(D) THE RENTAL OR SALE PRICE OR LICENSE ROYALTY MAY DIFFER AS TO
DIFFERENT TYPES AND SIZES OF MACHINES AND FROM TIME TO TIME SO LONG AS
THE RENTAL OR SALE PRICE OR ROYALTY AT ANY ONE TIME IS UNIFORM AS TO
EACH SIZE OR TYPE OF MACHINE.  THE TERMS OF THIS PARAGRAPH SHALL APPLY
TO ALL FUTURE CONTRACTS AND MODIFICATIONS OF EXISTING CONTRACTS.  ANY
PERSON WITH WHOM DEFENDANT INTERNATIONAL SALT NOW HAS A LEASE AGREEMENT
RELATING TO THE LIXATOR OR SALTOMAT MACHINES MAY ELECT TO RETAIN HIS
RIGHTS UNDER THE EXISTING LEASE OR TO ENTER INTO A LEASE OR SALE OR
LICENSE CONTRACT WITH DEFENDANT INTERNATIONAL SALT IN ACCORDANCE WITH
THE PROVISIONS OF THIS PARAGRAPH." 

FN8  DEFENDANT WOULD BE ENJOINED "FROM REFUSING TO SELL, LEASE OR
LICENSE THE USE OF ANY SUCH MACHINE TO ANY PERSON, FIRM OR CORPORATION,
OR FROM DISCRIMINATING IN THE TERMS OF ANY CONTRACT OF SALE, LEASE OR
LICENSE OF ANY SUCH MACHINE WITH ANY PERSON, FIRM OR CORPORATION,
AGAINST THE PROSPECTIVE BUYER, LESSEE OR LICENSEE ON THE GROUND THAT HE
HAS USED OR DEALT IN, OR INTENDS OR PROPOSES TO USE OR DEAL IN, SALT
NOT MANUFACTURED OR SOLD BY THE DEFENDANT INTERNATIONAL SALT." 

FN9  38 STAT. 730, 49 STAT. 1526, 15 U.S.C. SEC. 13B. 

FN10  THAT COURT IS AUTHORIZED, BUT NOT REQUIRED, TO CALL UPON THE
FEDERAL TRADE COMMISSION TO ASSIST IN FRAMING DECREES IN ANTITRUST
CASES.  SEC. 7, FEDERAL TRADE COMMISSION ACT, 38 STAT. 722.  THIS WOULD
SEEM UNNECESSARY IF CONGRESS INTENDED A SIMPLE PROHIBITION OF THE
PARTICULAR PRACTICE PROVED BEFORE THE COURT.  IT INDICATES THE CONGRESS
HAS INTENDED DECREES TO DEAL WITH THE FUTURE ECONOMIC CONDITION OF THE
ENTERPRISE AS WELL AS PAST VIOLATIONS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED AND MR. JUSTICE BURTON
JOIN, DISSENTING IN PART. 

AGREEING WHOLEHEARTEDLY WITH THE COURT'S OPINION ON THE MAIN ISSUE, I
AM LEFT UNPERSUADED BY ITS JUSTIFICATION FOR RETAINING PARAGRAPH VI
FN1  IN THE JUDGMENT. 

INASMUCH AS THE HOLDER OF PATENTS ON MACHINES IS NOT OBLIGED TO
DISPOSE OF THEM TO ALL COMERS OR TO DO SO AT A UNIFORM PRICE, PARAGRAPH
VI IN AND OF ITSELF UNDOUBTEDLY DEPRIVES APPELLANT OF A LEGAL RIGHT. 
IT IS NOT MERELY A THEORETICAL RIGHT.  PRACTICAL CONSIDERATIONS MAY
MAKE IT IMPORTANT FOR APPELLANT TO ACT UPON ITS LEGAL RIGHT NOT TO HAVE
A UNIFORM PRICE FOR ALL ITS CUSTOMERS.  IT WAS CONCEDED AT THE BAR THAT
COMPETITION MAY REQUIRE THIS.  NO DOUBT, WHEN A COURT CONDEMNS
PRACTICES AS VIOLATIVE OF THE SHERMAN LAW AND THE CLAYTON ACT, IT HAS
THE DUTY SO TO FASHION ITS DECREE AS TO PUT AN EFFECTIVE STOP TO THAT
WHICH IS CONDEMNED.  BUT THE LAW ALSO RESPECTS THE WISDOM OF NOT
BURNING EVEN PART OF A HOUSE IN ORDER TO ROAST A PIG.  ORDINARILY,
THEREFORE, WHEN ACTS ARE FOUND TO HAVE BEEN DONE IN VIOLATION OF
ANTITRUST LEGISLATION, RESTRAINT OF SUCH ACTS IN THE FUTURE IS THE
ADEQUATE RELIEF.  SEE NEW YORK, NEW HAVEN & HARTFORD R. CO. V.
INTERSTATE COMMERCE COMMISSION, 200 U.S. 361, 404; STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, 77; LABOR BOARD V. EXPRESS PUBLISHING
COMPANY, 312 U.S. 426, 435-37.  REFLECTING THE DICTATES OF FAIRNESS,
EQUITY DOES NOT PUT UNDER BAN THAT WHICH IS INTRINSICALLY LEGITIMATE
UNLESS FOR ALL PRACTICAL PURPOSES IT IS TIED WITH THE ILLEGITIMATE, OR
THE CIRCUMSTANCES OF THE CASE MAKE IT REASONABLE TO ASSUME THAT PURSUIT
OF WHAT IS LEGITIMATE WOULD BE A COVER FOR DOING WHAT IS FORBIDDEN. 

THE GOVERNMENT ARGUES, IN EFFECT, THAT TO COMPEL APPELLANT TO OBSERVE
UNIFORMITY OF PRICE FOR ITS MACHINES REMOVES ANY TEMPTATION FOR MORE
FAVORABLE TREATMENT OF A CUSTOMER WHO BUYS ITS SALT.  BUT THAT IS
PRECISELY THE AIM OF THE MAIN DECREE - IT PROHIBITS EXTENSION OF THE
PATENT FOR THE MACHINES BY REQUIRING AS A CONDITION OF ITS ACQUISITION
THE PURCHASE OF NON-PATENTED SALT.  THE PRESUPPOSITION OF PARAGRAPH VI
IS THAT THE APPELLANT WILL DISOBEY THAT WHICH THE COURT EXPLICITLY
FORBIDS, SO THAT THE WITHDRAWAL OF AN OTHERWISE LEGAL RIGHT TO FIX THE
PURCHASE PRICE OF PATENTED MACHINES IS EMPLOYED AS A PRECAUTIONARY
SCREW TO HOLD THE APPELLANT DOWN FROM DISOBEYING THE COURT'S DECREE. 
SURELY A COURT OF EQUITY OUGHT NOT TO ADD TO ITS PROHIBITION OF THE
ILLICIT A PROHIBITION OF THE LICIT UNLESS THE TWO ARE PRACTICALLY
INTERTWINED OR THERE IS SOME GROUND FOR BELIEVING THAT THE LICIT WILL
SURREPTITIOUSLY BE MISUSED IN ORDER TO ACCOMPLISH THE ILLICIT.  THERE
SHOULD BE NO SUCH PROHIBITION MERELY AS A RE-ENFORCEMENT OF THE
APPROPRIATE PRESUPPOSITION THAT A LITIGANT, NOT SHOWN TO HAVE BEEN
RECALCITRANT OR UNDERHANDED, WILL OBEY THE COURT'S DECREE.  IF HE DOES,
THE POWER OF CONTEMPT IS THERE TO ENFORCE OBEDIENCE.  IT IS SUGGESTED
THAT IF THE PRESUPPOSITION OF OBEDIENCE IS TO BE ENTERTAINED IT IS
UNNECESSARY TO ENJOIN EVEN ILLEGAL CONDUCT.  BUT, SURELY, IT IS ONE
THING TO DECREE PROHIBITION OF CONDUCT FOUND TO BE ILLEGAL AND A WHOLLY
DIFFERENT THING TO ADD THERETO THE PROHIBITION OF THAT WHICH IS
OTHERWISE LEGAL ON THE THEORY THAT THEREBY ANY TEMPTATION TO PERSIST IN
THE FORBIDDEN ILLEGALITY IS REMOVED. 

UPON THE RECORD BEFORE US THERE IS NOTHING TO SUGGEST THAT THE
APPELLANT IS LIKELY TO DISOBEY THE DECREE NOT ONLY OF THE DISTRICT
COURT AGAINST A CONTINUANCE OF ILLEGAL LEASES, BUT WHAT IN EFFECT, UPON
AFFIRMANCE, BECOMES A DECREE OF THIS COURT.  IT MUST BE REMEMBERED THAT
THE GOVERNMENT SAW FIT TO MOVE FOR JUDGMENT ON THE PLEADINGS.  IT
THEREBY RAISED A PURE LEGAL QUESTION AS TO THE VALIDITY OF THE LEASES
ON THEIR FACE.  THE GOVERNMENT CHOSE NOT TO TRY TO LAY BARE, AS IS
OFTEN DONE IN SHERMAN LAW CASES, FAIR AND UNFAIR PRACTICES INEXTRICABLY
BLENDED.  IN SUCH A SITUATION THE LAWFUL HAS TO FALL WITH THE
UNLAWFUL.  HAVING INVITED JUDGMENT ON THE BARE BONES OF THE PLEADINGS
WHICH MERELY RAISE THE VALIDITY OF THE TYING CLAUSES, THE GOVERNMENT IS
NOT ENTITLED TO REMEDIES WHICH GO BEYOND THE JUSTIFICATION OF THE
PLEADINGS.  THE GOVERNMENT OUGHT NOT TO HAVE IT BOTH WAYS.  THE
GOVERNMENT IS NOT ENTITLED TO A PROVISION IN THE DECREE WHICH CAN BE
JUSTIFIED ONLY ON SOME INDICATION IN THE RECORD, OF WHICH HERE THERE IS
NONE, THAT APPELLANT'S PAST SHOWS A DEVIOUS TEMPER WHICH NEEDS TO BE
HOBBLED BY WITHDRAWING A CONCEDED LEGAL RIGHT. 

IN COMPARABLE SITUATIONS, WHERE ORDERS OF THE FEDERAL TRADE
COMMISSION COME HERE FOR REVIEW, THIS COURT HAS SOUGHT TO PROTECT
OTHERWISE LEGITIMATE RIGHTS EVEN WHERE A BUSINESS HAS INDULGED IN
UNFAIR METHODS OF COMPETITION.  THE COMMISSION IS NOT AUTHORIZED TO
MAKE ITS ORDER NEEDLESSLY DESTRUCTIVE.  THE BABY IS NOT TO BE THROWN
OUT WITH THE BATH.  SEE FEDERAL TRADE COMMISSION V. ROYAL MILLING CO.,
288 U.S. 212, AND JACOB SIEGEL CO. V. FEDERAL TRADE COMMISSION, 327
U.S. 608.  ACCORDINGLY, IF THIS WERE A REVIEW OF AN ORDER OF THE
FEDERAL TRADE COMMISSION, I SHOULD REMIT THE ORDER FOR APPROPRIATE
RECONSIDERATION BY THE COMMISSION.  SINCE THIS IS A REVIEW OF A LOWER
FEDERAL COURT AND THE RECORD PRESUMABLY PRESENTS TO US ALL THAT WAS
BEFORE THE DISTRICT COURT IN SUPPORT OF PARAGRAPH VI, WE COULD DISPOSE
OF THE MATTER HERE. 

BUT THE MOLDING OF DECREES IN SHERMAN LAW CASES IS NORMALLY THE
BUSINESS OF DISTRICT COURTS.  THEY HAVE A SCOPE OF DISCRETION WHICH
SHOULD NOT UNDULY BE CUT OFF BY A RECASTING OF THE DECREE ON APPEAL
HERE.  (IT IS WORTH NOTING THAT THE AVAILABILITY OF THE FEDERAL TRADE
COMMISSION IN THE ROLE OF A MASTER IN CHANCERY TO HELP MOLD DECREES IN
SUITS UNDER THE ANTITRUST STATUTES APPARENTLY DOES NOT APPLY TO A SUIT
LIKE THE PRESENT, WHERE JUDGMENT WAS ASKED ON THE PLEADINGS AND NO
TESTIMONY WAS TAKEN.  SEE SEC. 7 OF THE FEDERAL TRADE COMMISSION ACT,
38 STAT. 717, 722, 15 U.S.C. SEC. 47.)  AND SO I WOULD REMAND THE CASE
TO THE DISTRICT COURT.  IT HAS BEEN SUGGESTED THAT PARAGRAPH VI IS
MERELY A ROUNDABOUT WAY OF SAYING THAT THE APPELLANT SHOULD NOT
DISCRIMINATE IN THE PRICE OF ITS PATENTED MACHINES IN FAVOR OF A
PURCHASER OF ITS SALT.  IF SUCH WAS THE INTENTION OF PARAGRAPH VI, THE
DISTRICT COURT WILL WANT TO CONVEY SUCH MEANING LESS AMBIGUOUSLY.  FN2 

AS THE PARAGRAPH STANDS, I DO NOT SEE HOW ANY LAWYER WOULD ADVISE
THAT THE APPELLANT COULD VARY ITS PRICES AMONG CUSTOMERS IN DIFFERENT
LOCALITIES FOR A LEGITIMATE REASON WITHOUT EACH TIME GOING TO THE
DISTRICT COURT FOR A MODIFICATION OF THE DECREE.  THAT IS NOT A BURDEN
WHICH, ON THIS RECORD, OUGHT TO BE PLACED ON THE APPELLANT.  THE UNDUE
STING OF PARAGRAPH VI IS NOT SAVED BY THE FACT THAT IT IS "SPECIFIC." 
OF COURSE IT IS IN THE INTEREST OF COURTS AND OF LITIGANTS THAT THE
TERMS OF A DECREE BE AS SPECIFIC AS POSSIBLE.  BUT THE DESIDERATUM OF
EXPLICITNESS DOES NOT DISPENSE WITH THE REQUIREMENT THAT REMEDIES BE
APPROPRIATE TO THE CONDEMNED ILLEGALITY.  IT DOES NOT DRAW THE STING OF
UNDUE PROHIBITION OF LAWFUL CONDUCT TO MAKE THE PROHIBITION SPECIFIC. 

FN1                                     "VI 

"DEFENDANT INTERNATIONAL SALT IS DIRECTED TO OFFER TO LEASE OR SELL
OR LICENSE THE USE OF THE LIXATOR OR SALTOMAT MACHINES, OR ANY OTHER
MACHINE WHICH IS THEN BEING OR ABOUT TO BE OFFERED OR SHALL HAVE BEEN
OFFERED BY SUCH DEFENDANT IN THE UNITED STATES EMBODYING INVENTIONS
COVERED BY ANY OF THE PATENTS REFERRED TO IN PARAGRAPH II HEREOF, TO
ANY APPLICANT ON NON-DISCRIMINATORY TERMS AND CONDITIONS; PROVIDED
THAT 

"(A)  A MACHINE OR MACHINES IS OR ARE AVAILABLE FOR SUCH PURPOSES
AND 

"(B)  DEFENDANT SHALL NOT BE REQUIRED TO MAKE SUCH OFFER UNLESS IT IS
OFFERING, ABOUT TO OFFER, OR HAS OFFERED SUCH MACHINES FOR LEASE OR
SALE OR LICENSE WITHIN THE UNITED STATES AND AT ANY TIME THE DEFENDANT
MAY DISCONTINUE THE BUSINESS OF RENTING OR SELLING OR LICENSING THE USE
OF SUCH MACHINES; AND 

"(C)  SUCH SALE OR LEASE OR LICENSE IS NOT REQUIRED TO BE MADE
WITHOUT CASH PAYMENT OR SECURITY TO ANY PERSON NOT HAVING PROPER CREDIT
RATING, AND 

"(D) THE RENTAL OR SALE PRICE OR LICENSE ROYALTY MAY DIFFER AS TO
DIFFERENT TYPES AND SIZES OF MACHINES AND FROM TIME TO TIME SO LONG AS
THE RENTAL OR SALE PRICE OR ROYALTY AT ANY ONE TIME IS UNIFORM AS TO
EACH SIZE OR TYPE OF MACHINE.  THE TERMS OF THIS PARAGRAPH SHALL APPLY
TO ALL FUTURE CONTRACTS AND MODIFICATIONS OF EXISTING CONTRACTS.  ANY
PERSON WITH WHOM DEFENDANT INTERNATIONAL SALT NOW HAS A LEASE AGREEMENT
RELATING TO THE LIXATOR OR SALTOMAT MACHINES MAY ELECT TO RETAIN HIS
RIGHTS UNDER THE EXISTING LEASE OR TO ENTER INTO A LEASE OR SALE OR
LICENSE CONTRACT WITH DEFENDANT INTERNATIONAL SALT IN ACCORDANCE WITH
THE PROVISIONS OF THIS PARAGRAPH." 

FN2  SEE THE CLAUSE WHICH THE APPELLANT PROPOSED TO THE DISTRICT
COURT, ENJOINING IT "FROM REFUSING TO SELL, LEASE OR LICENSE THE USE OF
ANY SUCH MACHINE TO ANY PERSON, FIRM OR CORPORATION, OR FROM
DISCRIMINATING IN THE TERMS OF ANY CONTRACT OF SALE, LEASE OR LICENSE
OF ANY SUCH MACHINE WITH ANY PERSON, FIRM OR CORPORATION, AGAINST THE
PROSPECTIVE BUYER, LESSEE OR LICENSEE ON THE GROUND THAT HE HAS USED OR
DEALT IN, OR INTENDS OR PROPOSES TO USE OR DEAL IN, SALT NOT
MANUFACTURED OR SOLD BY THE DEFENDANT INTERNATIONAL SALT." 
..END :


















UNITED STATES V. PETRILLO, 332 U.S. 1 


NO. 954.  ARGUED MAY 5-6, 1947.  - DECIDED JUNE 23, 1947.  - 68 F.SUPP. 
845, REVERSED AND REMANDED. 


1.  SECTION 506(A)(1) OF THE COMMUNICATIONS ACT, MAKING IT A CRIME, BY
THE USE OR THREAT OF USE OF FORCE, VIOLENCE, INTIMIDATION, OR DURESS,
TO COERCE, COMPEL OR CONSTRAIN OR ATTEMPT TO COERCE, COMPEL OR
CONSTRAIN A RADIO-BROADCASTING LICENSEE TO EMPLOY OR AGREE TO EMPLOY,
IN CONNECTION WITH THE CONDUCT OF THE LICENSEE'S BROADCASTING BUSINESS,
ANY PERSON OR PERSONS "IN EXCESS OF THE NUMBER OF EMPLOYEES NEEDED BY
SUCH LICENSEE TO PERFORM ACTUAL SERVICES," IS NOT SO VAGUE, INDEFINITE
OR UNCERTAIN AS TO VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  PP. 5-8. 

(A)  THIS QUESTION WAS PROPERLY PRESENTED TO THIS COURT FOR A
DECISION ON AN APPEAL BY THE GOVERNMENT UNDER THE CRIMINAL APPEALS ACT
FROM A DECISION OF A DISTRICT COURT DISMISSING, ON THE SOLE GROUND THAT
THE SECTION WAS UNCONSTITUTIONAL, AN INFORMATION CHARGING A VIOLATION
IN SUBSTANTIALLY THE STATUTORY LANGUAGE.  PP. 5-6. 

(B)  THE CONTENTION THAT PERSONS OF ORDINARY INTELLIGENCE WOULD BE
UNABLE TO KNOW WHEN THEIR COMPULSIVE ACTIONS WOULD FORCE A PERSON
AGAINST HIS WILL TO HIRE EMPLOYEES HE DID NOT NEED, CANNOT BE
SUSTAINED.  PP. 6-7. 

(C)  WHEN MEASURED BY COMMON UNDERSTANDING AND PRACTICES, THE
LANGUAGE OF THE STATUTE PROVIDES AN ADEQUATE WARNING AS TO WHAT CONDUCT
FALLS UNDER ITS BAN, AND MARKS BOUNDARIES SUFFICIENTLY DISTINCT FOR
JUDGES AND JURIES FAIRLY TO ADMINISTER THE LAW IN ACCORDANCE WITH THE
WILL OF CONGRESS; AND THE CONSTITUTION REQUIRES NO MORE.  PP. 7-8. 

2.  IT DOES NOT CONTRAVENE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT BY DENYING EQUAL PROTECTION OF THE LAWS TO RADIO-BROADCASTING
EMPLOYEES AS A CLASS - EVEN THOUGH IT PROVIDES NO PUNISHMENT FOR
EMPLOYERS FOR VIOLATING THE POLICY AND LEAVES OTHER CLASSES OF
EMPLOYEES FREE TO ENGAGE IN THE PRACTICES FORBIDDEN TO RADIO WORKERS. 
PP. 8-9. 

(A)  THIS QUESTION WAS PROPERLY PRESENTED TO THIS COURT FOR A
DECISION ON AN APPEAL BY THE GOVERNMENT UNDER THE CRIMINAL APPEALS ACT
FROM A DECISION OF THE DISTRICT COURT DISMISSING AN INFORMATION ON THE
SOLE GROUND THAT THE STATUTE IS UNCONSTITUTIONAL AS WRITTEN.  P. 8. 

(B)  IT IS NOT WITHIN THE PROVINCE OF THIS COURT TO SAY THAT, BECAUSE
CONGRESS HAS PROHIBITED SOME PRACTICES WITHIN ITS POWER TO PROHIBIT, IT
MUST PROHIBIT ALL WITHIN ITS POWER.  PP. 8-9. 

3.  ON ITS FACE, THE STATUTE DOES NOT CONTRAVENE THE FIRST AMENDMENT
BY ABRIDGING FREEDOM OF SPEECH; BUT, SINCE THE STATUTE DOES NOT MENTION
PICKETING AND IT IS UNCERTAIN ON THE RECORD IN THIS CASE WHETHER IT
WOULD HAVE BEEN APPLIED SO AS TO PROHIBIT PEACEFUL PICKETING, THE
QUESTION WHETHER SUCH AN APPLICATION WOULD VIOLATE THE FIRST AMENDMENT
IS NOT BEFORE THIS COURT IN A FORM APPROPRIATE FOR DECISION.  PP. 9
12. 

4.  ON ITS FACE, THE STATUTE DOES NOT VIOLATE THE PROVISIONS OF THE
THIRTEENTH AMENDMENT PROHIBITING SLAVERY AND INVOLUNTARY SERVITUDE; BUT
NO DECISION IS MADE ON THE QUESTION WHETHER SOME POSSIBLE APPLICATION
OF IT TO PARTICULAR PERSONS IN PARTICULAR SETS OF CIRCUMSTANCES WOULD
VIOLATE THE THIRTEENTH AMENDMENT, SINCE QUESTIONS OF THAT KIND ARE NOT
PRESENTED BY THE RECORD IN THIS CASE IN A FORM APPROPRIATE FOR DECISION
BY THIS COURT.  PP. 12-13. 

5.  THE CRIMINAL APPEALS ACT DOES NOT REQUIRE THIS COURT TO PASS ON
CONSTITUTIONAL QUESTIONS PREMATURELY DECIDED BY A DISTRICT COURT'S
DISMISSAL OF AN INFORMATION WHICH HAD NOT BEEN TESTED BY A MOTION TO
STRIKE OR FOR A BILL OF PARTICULARS.  P. 10. 

UNITED STATES V. PETRILLO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

THE DISTRICT COURT DISMISSED A CRIMINAL INFORMATION CHARGING
RESPONDENT WITH VIOLATION OF SEC. 506(A)(1) OF THE COMMUNICATIONS ACT,
ON THE GROUND THAT THE SECTION WAS UNCONSTITUTIONAL.  68 F.SUPP.  845. 
ON DIRECT APPEAL BY THE GOVERNMENT UNDER THE CRIMINAL APPEALS ACT, 18
U.S.C. (SUPP. V, 1946) SEC. 682, REVERSED AND REMANDED, P. 13. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.  L. STERN
ARGUED THE CAUSE FOR THE UNITED STATES.  WITH THEM ON THE BRIEF WAS
ACTING SOLICITOR GENERAL WASHINGTON. 

JOSEPH A. PADWAY AND HENRY KAISER ARGUED THE CAUSE FOR APPELLEE. 
WITH THEM ON THE BRIEF WAS HERBERT S. THATCHER. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE DISTRICT COURT DISMISSED A CRIMINAL INFORMATION FILED AGAINST THE
RESPONDENT, JAMES C. PETRILLO, ON THE GROUND THAT THE STATUTE ON WHICH
THE INFORMATION WAS FOUNDED WAS UNCONSTITUTIONAL.  68 F.SUPP.  845. 
THE CASE IS HERE ON DIRECT APPEAL BY THE GOVERNMENT AS AUTHORIZED BY
THE CRIMINAL APPEALS ACT.  18 U.S.C. (SUPP. V, 1946) SEC. 682.  THE
INFORMATION CHARGED A VIOLATION OF THE COMMUNICATIONS ACT OF 1934, 48
STAT. 1064, 1102, AS AMENDED BY AN ACT OF APRIL 16, 1946.  60 STAT.
89.  THE SPECIFIC PROVISIONS OF THE AMENDMENT CHARGED TO HAVE BEEN
VIOLATED READ: 

"SEC. 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 

     .         .         .  .         . 

"(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. 

THE INFORMATION ALLEGED THAT A RADIO BROADCASTING COMPANY, HOLDING A
FEDERAL LICENSE, HAD, FOR SEVERAL YEARS IMMEDIATELY PRECEDING, EMPLOYED
"CERTAIN PERSONS WHO WERE SUFFICIENT AND ADEQUATE IN NUMBER TO PERFORM
ALL OF THE ACTUAL SERVICES NEEDED  ...  IN CONNECTION WITH THE CONDUCT
OF ITS BROADCASTING BUSINESS."  THE INFORMATION FURTHER CHARGED THAT
THE RESPONDENT, PETRILLO, "WILFULLY, BY THE USE OF FORCE, INTIMIDATION,
DURESS AND BY THE USE OF OTHER MEANS, DID ATTEMPT TO COERCE, COMPEL AND
CONSTRAIN SAID LICENSEE TO EMPLOY AND AGREE TO EMPLOY, IN CONNECTION
WITH THE CONDUCT OF ITS RADIO BROADCASTING BUSINESS, THREE ADDITIONAL
PERSONS NOT NEEDED BY SAID LICENSEE TO PERFORM ACTUAL SERVICES  ...  " 

THE COERCION WAS ALLEGEDLY ACCOMPLISHED IN THE FOLLOWING MANNER: 

"(1)  BY DIRECTING AND CAUSING THREE MUSICIANS, MEMBERS OF THE
CHICAGO FEDERATION OF MUSICIANS, THERETOFORE EMPLOYED BY THE SAID
LICENSEE IN CONNECTION WITH THE CONDUCT OF ITS BROADCASTING BUSINESS,
TO DISCONTINUE THEIR EMPLOYMENT WITH SAID LICENSEE; 

"(2)  BY DIRECTING AND CAUSING SAID THREE EMPLOYEES AND OTHER
PERSONS, MEMBERS OF THE CHICAGO FEDERATION OF MUSICIANS, NOT TO ACCEPT
EMPLOYMENT BY SAID LICENSEE; AND, 

"(3)  BY PLACING AND CAUSING TO BE PLACED A PERSON AS A PICKET IN
FRONT OF THE PLACE OF BUSINESS OF SAID LICENSEE." 

THE ONLY CHALLENGE TO THE INFORMATION WAS A MOTION TO DISMISS ON THE
GROUND THAT THE ACT ON WHICH THE INFORMATION WAS BASED (A) ABRIDGES
FREEDOM OF SPEECH IN CONTRAVENTION OF THE FIRST AMENDMENT; (B) IS
REPUGNANT TO THE FIFTH AMENDMENT BECAUSE IT DEFINES A CRIME IN TERMS
THAT ARE EXCESSIVELY VAGUE, AND DENIES EQUAL PROTECTION OF THE LAW AND
LIBERTY OF CONTRACT; (C) IMPOSES INVOLUNTARY SERVITUDE IN VIOLATION OF
THE THIRTEENTH AMENDMENT.  FN1  THE DISTRICT COURT DISMISSED THE
INFORMATION, HOLDING THAT THE 1946 AMENDMENT ON WHICH IT WAS BASED
VIOLATES THE FIRST, FIFTH, AND THIRTEENTH AMENDMENTS. 

TWO GENERAL PRINCIPLES WHICH CONCERN OUR DISPOSITION OF APPEALS
INVOLVING CONSTITUTIONAL QUESTIONS HAVE SPECIAL APPLICATION TO THIS
CASE:  WE HAVE CONSISTENTLY REFRAINED FROM PASSING ON THE
CONSTITUTIONALITY OF A STATUTE UNTIL A CASE INVOLVING IT HAS REACHED A
STAGE WHERE THE DECISION OF A PRECISE CONSTITUTIONAL ISSUE IS A
NECESSITY.  THE REASONS UNDERLYING THIS PRINCIPLE AND ILLUSTRATIONS OF
THE STRICTNESS WITH WHICH IT HAS BEEN APPLIED APPEAR IN THE OPINION OF
THE COURT IN RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549, 568, AND
CASES THERE COLLECTED.  AND IN REVIEWING A DIRECT APPEAL FROM A
DISTRICT COURT UNDER THE CRIMINAL APPEALS ACT, SUPRA, OUR REVIEW IS
LIMITED TO THE VALIDITY OR CONSTRUCTION OF THE CONTESTED STATUTE.  FOR
"THE GOVERNMENT'S APPEAL DOES NOT OPEN THE WHOLE CASE."  UNITED STATES
V. BORDEN CO., 308 U.S. 188, 193. 

FIRST.  ONE HOLDING OF THE DISTRICT COURT WAS THAT, AS CONTENDED
HERE, THE STATUTE IS REPUGNANT TO THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT BECAUSE ITS WORDS, "NUMBER OF EMPLOYEES NEEDED BY SUCH
LICENSEE," ARE SO VAGUE, INDEFINITE AND UNCERTAIN THAT "PERSONS OF
ORDINARY INTELLIGENCE CANNOT IN ADVANCE TELL WHETHER A CERTAIN ACTION
OR COURSE OF CONDUCT WOULD BE WITHIN ITS PROHIBITION  ...  "  THE
INFORMATION HERE, UP TO THE PLACE WHERE IT SPECIFICALLY CHARGES THE
PARTICULAR MEANS USED TO COERCE THE LICENSEE, SUBSTANTIALLY EMPLOYS
THIS STATUTORY LANGUAGE.  AND THE MOTION TO DISMISS ON THE GROUND OF
VAGUENESS AND INDEFINITENESS SQUARELY RAISES THE QUESTION OF WHETHER
THE SECTION INVOKED IN THE INDICTMENT IS VOID IN TOTO, BARRING ALL
FURTHER ACTIONS UNDER IT, IN THIS, AND EVERY OTHER CASE.  CF. UNITED
STATES V. THOMPSON, 251 U.S. 407, 412.  MANY QUESTIONS OF A STATUTE'S
CONSTITUTIONALITY AS APPLIED CAN BEST AWAIT THE REFINEMENT OF THE
ISSUES BY PLEADING, CONSTRUCTION OF THE CHALLENGED STATUTE AND
PLEADINGS, AND, SOMETIMES, PROOF.  RESCUE ARMY V. MUNICIPAL COURT,
SUPRA; WATSON V. BUCK, 313 U.S. 387, 402.  BORDEN'S COMPANY V. BALDWIN,
293 U.S. 194, 204, 210, AND CONCURRING OPINION AT P. 213.  BUT NO
REFINEMENT OR CLARIFICATION OF ISSUES WHICH WE CAN REASONABLY
ANTICIPATE WOULD BRING INTO BETTER FOCUS THE QUESTION OF WHETHER THE
CONTESTED SECTION IS WRITTEN SO VAGUELY AND INDEFINITELY THAT ONE WHOSE
CONDUCT IT AFFECTED COULD ONLY GUESS WHAT IT MEANT.  CONSEQUENTLY,
SINCE THIS PHASE OF THE APPEAL RAISES A QUESTION OF VALIDITY OF A
STATUTE WITHIN OUR JURISDICTION UNDER THE CRIMINAL APPEALS ACT, SUPRA,
AND IS RIPE FOR OUR DECISION, WE TURN TO THE MERITS OF THE CONTENTION. 

WE COULD NOT SUSTAIN THIS PROVISION OF THE ACT IF WE AGREED WITH THE
CONTENTION THAT PERSONS OF ORDINARY INTELLIGENCE WOULD BE UNABLE TO
KNOW WHEN THEIR COMPULSIVE ACTIONS WOULD FORCE A PERSON AGAINST HIS
WILL TO HIRE EMPLOYEES HE DID NOT NEED.  CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U.S. 385, 391; LANZETTA V. NEW JERSEY, 306 U.S.
451.  BUT WE DO NOT AGREE.  OF COURSE, AS RESPONDENT POINTS OUT, THERE
ARE MANY FACTORS THAT MIGHT BE CONSIDERED IN DETERMINING HOW MANY
EMPLOYEES ARE NEEDED ON A JOB.  BUT THE SAME THING MAY BE SAID ABOUT
MOST QUESTIONS WHICH MUST BE SUBMITTED TO A FACT-FINDING TRIBUNAL IN
ORDER TO ENFORCE STATUTES.  CERTAINLY, AN EMPLOYER'S STATEMENTS AS TO
THE NUMBER OF EMPLOYEES "NEEDED" IS NOT CONCLUSIVE AS TO THAT
QUESTION.  IT, LIKE THE ALLEGED WILFULLNESS OF A DEFENDANT, MUST BE
DECIDED IN THE LIGHT OF ALL THE EVIDENCE. 

CLEARER AND MORE PRECISE LANGUAGE MIGHT HAVE BEEN FRAMED BY CONGRESS
TO EXPRESS WHAT IT MEANT BY "NUMBER OF EMPLOYEES NEEDED."  BUT NONE
OCCURS TO US, NOR HAS ANY BETTER LANGUAGE BEEN SUGGESTED, EFFECTIVELY
TO CARRY OUT WHAT APPEARS TO HAVE BEEN THE CONGRESSIONAL PURPOSE.  THE
ARGUMENT REALLY SEEMS TO BE THAT IT IS IMPOSSIBLE FOR A JURY OR COURT
EVER TO DETERMINE HOW MANY EMPLOYEES A BUSINESS NEEDS, AND THAT,
THEREFORE, NO STATUTORY LANGUAGE COULD MEET THE PROBLEM CONGRESS HAD IN
MIND.  IF THIS ARGUMENT SHOULD BE ACCEPTED, THE RESULT WOULD BE THAT NO
LEGISLATURE COULD MAKE IT AN OFFENSE FOR A PERSON TO COMPEL ANOTHER TO
HIRE EMPLOYEES, NO MATTER HOW UNNECESSARY THEY WERE, AND HOWEVER
DESIRABLE A LEGISLATURE MIGHT CONSIDER SUPPRESSION OF THE PRACTICE TO
BE. 

THE CONSTITUTION PRESENTS NO SUCH INSUPERABLE OBSTACLE TO
LEGISLATION.  WE THINK THAT THE LANGUAGE CONGRESS USED PROVIDES AN
ADEQUATE WARNING AS TO WHAT CONDUCT FALLS UNDER ITS BAN, AND MARKS
BOUNDARIES SUFFICIENTLY DISTINCT FOR JUDGES AND JURIES FAIRLY TO
ADMINISTER THE LAW IN ACCORDANCE WITH THE WILL OF CONGRESS.  THAT THERE
MAY BE MARGINAL CASES IN WHICH IT IS DIFFICULT TO DETERMINE THE SIDE OF
THE LINE ON WHICH A PARTICULAR FACT SITUATION FALLS IS NO SUFFICIENT
REASON TO HOLD THE LANGUAGE TOO AMBIGUOUS TO DEFINE A CRIMINAL
OFFENSE.  ROBINSON V. UNITED STATES, 324 U.S. 282, 285-286.  IT WOULD
STRAIN THE REQUIREMENT FOR CERTAINTY IN CRIMINAL LAW STANDARDS TOO NEAR
THE BREAKING POINT TO SAY THAT IT WAS IMPOSSIBLE JUDICIALLY TO
DETERMINE WHETHER A PERSON KNEW WHEN HE WAS WILFULLY ATTEMPTING TO
COMPEL ANOTHER TO HIRE UNNEEDED EMPLOYEES.  SEE SCREWS V. UNITED
STATES, 325 U.S. 91; UNITED STATES V. RAGEN, 314 U.S. 513, 522, 524,
525.  THE CONSTITUTION HAS ERECTED PROCEDURAL SAFEGUARDS TO PROTECT
AGAINST CONVICTION FOR CRIME EXCEPT FOR VIOLATION OF LAWS WHICH HAVE
CLEARLY DEFINED CONDUCT THEREAFTER TO BE PUNISHED; BUT THE CONSTITUTION
DOES NOT REQUIRE IMPOSSIBLE STANDARDS.  THE LANGUAGE HERE CHALLENGED
CONVEYS SUFFICIENTLY DEFINITE WARNING AS TO THE PROSCRIBED CONDUCT WHEN
MEASURED BY COMMON UNDERSTANDING AND PRACTICES.  THE CONSTITUTION
REQUIRES NO MORE. 

SECOND.  IT IS CONTENDED THAT THE STATUTE DENIES EQUAL PROTECTION OF
THE LAWS TO RADIO-BROADCASTING EMPLOYEES AS A CLASS, AND, FOR THIS
REASON, VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  THIS
CONTENTION, RAISED BY THE MOTION TO DISMISS, AND SUSTAINED BY THE
DISTRICT COURT AS A GROUND FOR HOLDING THE STATUTE UNCONSTITUTIONAL AS
WRITTEN, IS PROPERLY BEFORE US, AND WE REACH THIS EQUAL PROTECTION
GROUND, FOR THE SAME REASON THAT WE DECIDED THE QUESTION OF WHETHER THE

IN SUPPORT OF THIS CONTENTION IT IS FIRST ARGUED THAT IF CONGRESS
CONCLUDED THAT EMPLOYMENT BY BROADCASTING COMPANIES OF UNNEEDED WORKERS
WAS DETRIMENTAL TO INTERSTATE COMMERCE, IN ORDER TO BE CONSISTENT, IT
SHOULD HAVE PROVIDED FOR THE PUNISHMENT OF EMPLOYERS, AS WELL AS
EMPLOYEES, WHO VIOLATE THAT POLICY.  FN2  SECONDLY, IT IS ARGUED, THE
ACT VIOLATES DUE PROCESS BECAUSE IT SINGLES OUT BROADCASTING EMPLOYEES
FOR REGULATION WHILE LEAVING OTHER CLASSES OF EMPLOYEES FREE TO ENGAGE
IN THE VERY PRACTICES FORBIDDEN TO RADIO WORKERS.  BUT IT IS NOT WITHIN
OUR PROVINCE TO SAY THAT, BECAUSE CONGRESS HAS PROHIBITED SOME
PRACTICES WITHIN ITS POWER TO PROHIBIT, IT MUST PROHIBIT ALL WITHIN ITS
POWER.  CONSEQUENTLY, IF CONGRESS BELIEVES THAT THERE ARE EMPLOYEE
PRACTICES IN THE RADIO INDUSTRY WHICH INJURIOUSLY AFFECT INTERSTATE
COMMERCE, AND DIRECTS ITS PROHIBITIONS AGAINST THOSE PRACTICES, WE
COULD NOT SET ASIDE ITS LEGISLATION EVEN IF WE WERE PERSUADED THAT
EMPLOYER PRACTICES ALSO REQUIRED REGULATION.  SEE LABOR BOARD V. JONES
& LAUGHLIN STEEL CORP., 301 U.S. 1, 46.  NOR COULD WE STRIKE DOWN SUCH
LEGISLATION, EVEN IF WE BELIEVED THAT AS A MATTER OF POLICY IT WOULD
HAVE BEEN WISER NOT TO ENACT THE LEGISLATION OR TO EXTEND THE
PROHIBITIONS OVER A WIDER OR NARROWER AREA.  HERE CONGRESS AIMED ITS
LAW DIRECTLY AGAINST ONE PRACTICE - COMPELLING A BROADCASTING COMPANY
TO HIRE UNNEEDED WORKERS.  THERE IS NOTHING NOVEL ABOUT LAWS TO
PROHIBIT SOME PERSONS FROM COMPELLING OTHER PERSONS TO ACT CONTRARY TO
THEIR DESIRES.  WHATEVER MAY BE THE LIMITS OF THE POWER OF CONGRESS
THAT DO NOT APPLY EQUALLY TO ALL CLASSES, GROUPS, AND PERSONS, SEE
STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 584, WE ARE SATISFIED THAT
CONGRESS HAS NOT TRANSGRESSED THOSE LIMITS IN THE PROVISIONS OF THIS
STATUTE WHICH ARE HERE ATTACKED. 

THIRD.  RESPONDENT CONTENDS HERE, AND THE DISTRICT COURT HAS HELD,
THAT THE STATUTE ABRIDGES FREEDOM OF SPEECH BY MAKING PEACEFUL
PICKETING A CRIME.  IT IS IMPORTANT TO NOTE THAT THE STATUTE DOES NOT
MENTION PICKETING, PEACEFUL OR VIOLENT.  THE PROPOSED APPLICATION OF
THE STATUTE TO PICKETING, THEREFORE, DOES NOT DERIVE FROM ANY SPECIFIC
PROHIBITION WRITTEN INTO THE STATUTE AGAINST PEACEFUL PICKETING. 
RATHER IT COMES FROM THE INFORMATION'S CHARGE THAT RESPONDENT ATTEMPTED
TO COMPEL THE LICENSEE TO HIRE UNNEEDED EMPLOYEES BY PLACING "A PICKET
IN FRONT OF THE PLACE OF BUSINESS OF (THE)  ...  LICENSEE."  YET THE
RESPONDENT'S MOTION TO DISMISS WAS MADE ONLY ON THE GROUND THAT THE
STATUTE, AS WRITTEN, CONTRAVENES THE FIRST AMENDMENT.  IN RULING ON
THIS MOTION, THE DISTRICT COURT ASSUMED THAT BECAUSE "THERE (WAS) IN
THIS CASE NO CHARGE OF VIOLENCE ...  THE PLACING OF A PICKET MUST BE
REGARDED  ...  AS PEACEFUL PICKETING."  FROM THIS ASSUMPTION, IT
CONCLUDED THAT "THE APPLICATION (OF THE STATUTE) HERE SOUGHT TO BE MADE
VIOLATES THE FIRST AMENDMENT BY ITS RESTRICTION UPON FREEDOM OF SPEECH
BY PEACEFUL PICKETING."  THUS, RATHER THAN HOLDING THE STATUTE AS
WRITTEN TO BE AN UNCONSTITUTIONAL VIOLATION OF THE FIRST AMENDMENT, THE
DISTRICT COURT RULED ON THE STATUTE AS IT WAS PROPOSED TO BE APPLIED BY
THE INFORMATION AS IT THEN READ.    WE CONSIDER IT INAPPROPRIATE TO
REACH THE MERITS OF THIS CONSTITUTIONAL QUESTION NOW.  AS WE HAVE
POINTED OUT, WE HAVE CONSISTENTLY SAID THAT WE WOULD REFRAIN FROM
PASSING ON THE CONSTITUTIONALITY OF STATUTES IN ADVANCE OF THE
NECESSITY TO DO SO.  AND THE PROVISIONS FOR DIRECT APPEAL FROM DISTRICT
COURTS OF CERTAIN CRIMINAL CASES DO NOT REQUIRE US TO PASS ON
CONSTITUTIONAL QUESTIONS PREMATURELY DECIDED BY A DISTRICT COURT'S
DISMISSAL OF AN INFORMATION. 

THE INFORMATION HERE, UP TO THE PLACE WHERE IT ALLEGES THE USE OF
PARTICULAR COERCIVE MEANS, CHARGES IN SUBSTANTIALLY THE LANGUAGE OF THE
STATUTE THAT RESPONDENT COERCED THE LICENSEE.  THE INFORMATION'S
CHARGES UP TO THIS POINT CONSTITUTE A SUFFICIENT BASIS FOR A CHALLENGE
TO THE STATUTE ON THE GROUND THAT IT CONTRAVENES THE CONSTITUTION. 
WHETHER THIS PART OF THE INFORMATION, OR THE INFORMATION AS A WHOLE,
WAS ADEQUATE DEFINITELY TO INFORM THE RESPONDENT OF THE NATURE OF THE
CHARGE AGAINST HIM IS ANOTHER QUESTION.  SEE UNITED STATES V.
LEPOWITCH, 318 U.S. 702, 704; POTTER V. UNITED STATES, 155 U.S. 438;
CF. UNITED STATES V. HESS, 124 U.S. 483.  HAD THE DISTRICT COURT
POSTPONED RULING ON THE FIRST AMENDMENT QUESTION RAISED BY THE MOTION
TO DISMISS, OR HAD IT DENIED THE MOTION, RESPONDENT COULD HAVE SOUGHT A
BILL OF PARTICULARS, APART FROM ATTACKING THE CONSTITUTIONALITY OF THE
ACT.  SEE HUSTY V. UNITED STATES, 282 U.S. 694, 702; BARTELL V. UNITED
STATES, 227 U.S. 427, 433-434; DUNBAR V. UNITED STATES, 156 U.S. 185,
192.  SO ALSO, IF THE ADDITIONAL ALLEGATIONS DESCRIBING THE MEANS USED
TO ACCOMPLISH THE PROSCRIBED PURPOSE WERE NOT DEFINITE ENOUGH FOR THE
COURT TO DETERMINE WHETHER THEY WERE SUFFICIENT IN LAW TO CHARGE AN
OFFENSE, AND IF SUCH ALLEGATIONS WERE NOT MERE SURPLUSAGE, SEE UNITED
STATES V. SOCONY-VACUUM OIL COMPANY, 310 U.S. 150, 222, A CHALLENGE
COULD HAVE BEEN MADE TO THE INFORMATION, SEE UNITED STATES V. HESS,
SUPRA, AT 487-488, AS DISTINGUISHED FROM A CHALLENGE TO THE STATUTE ON
WHICH IT RESTED.  IN THAT EVENT, AND UPON A HOLDING OF INSUFFICIENCY OF
THE INFORMATION, APPEAL BY THE UNITED STATES WOULD HAVE PROPERLY GONE,
UNDER THE CRIMINAL APPEALS ACT, SUPRA, TO THE CIRCUIT COURT OF APPEALS,
AND IF INAPPROPRIATELY BROUGHT HERE, THAT ACT, AS AMENDED, 56 STAT.
271, WOULD HAVE REQUIRED US TO TRANSFER THE CAUSE TO THE CIRCUIT COURT
OF APPEALS.  BUT NO SUCH CHALLENGE WAS MADE TO THE INFORMATION. 

WE THEREFORE HAVE A SITUATION IN WHICH WE ARE URGED TO STRIKE DOWN A
STATUTE AS VIOLATIVE OF THE CONSTITUTIONAL GUARANTEES OF FREE SPEECH
WHEN THE STATUTE HAS NOT BEEN, AND MIGHT NEVER BE, APPLIED IN SUCH
MANNER AS TO RAISE THE QUESTION RESPONDENT ASKS US TO DECIDE.  FOR THE
GIST OF THE OFFENSE HERE CHARGED IN THE STATUTE AND IN THE INFORMATION
IS THAT RESPONDENT "WILFULLY, BY THE USE OF FORCE, INTIMIDATION, DURESS
AND BY THE USE OF OTHER MEANS, DID ATTEMPT TO COERCE, COMPEL AND
CONSTRAIN" THE LICENSEE TO HIRE UNNEEDED EMPLOYEES.  IF THE ALLEGATIONS
THAT THIS PROHIBITED RESULT WAS ATTEMPTED TO BE ACCOMPLISHED BY
PICKETING ARE SO BROAD AS TO INCLUDE ACTION WHICH EITHER IS NOT
COERCIVE, COMPELLING OR CONSTRAINING, WITHIN THE STATUTE'S MEANING, OR
COULD NOT BE CONSTITUTIONALLY HELD TO BE, THE TRIAL COURT WOULD BE
FREE, ON MOTION OF THE RESPONDENT, TO STRIKE THE PARTICULAR ALLEGATIONS
IF THEY ARE SURPLUSAGE.  RULES OF CRIMINAL PROCEDURE, SEC. 7(D).  OR
THE GOVERNMENT MIGHT AMEND THE INFORMATION "AT ANY TIME BEFORE VERDICT
OR FINDING IF NO ADDITIONAL OR DIFFERENT OFFENSE IS CHARGED AND IF
SUBSTANTIAL RIGHTS OF THE DEFENDANT ARE NOT PREJUDICED."  IBID. SEC.
7(E). 

THE FOREGOING ANALYSIS SHOWS THAT WE ARE ASKED TO RULE ON
CONSTITUTIONAL QUESTIONS THAT ARE NOT YET PRECISELY IN ISSUE.  THE
QUESTION AS IT WAS DECIDED BY THE DISTRICT COURT WAS NOT THE QUESTION
RAISED BY THE MOTION TO DISMISS - WHETHER THE STATUTE IS INVALID ON ITS
FACE - BUT WHETHER IT IS INVALID AS IT IS PROPOSED TO BE APPLIED.  AND
EVEN IF OUR DECISION COULD BE EVOKED UPON A SHOWING THAT THE STATUTE
CERTAINLY, BUT FOR OUR INTERVENTION, WOULD HAVE PUNISHED RESPONDENT FOR
PEACEFUL PICKETING, THERE IS NO SUCH CERTAINTY HERE.  NO FINAL ISSUE
HAD BEEN DRAWN.  THE INFORMATION WAS STILL SUBJECT TO AMENDMENT TO FIT,
WITHIN THE PERMISSIBLE AREA OF AMENDMENTS, THE TYPE OF COERCIVE MEANS
DEVELOPED BY FURTHER PLEADING OR PROOF.  SEE BORDEN'S CO. V. BALDWIN,
SUPRA, AT 213.  FURTHER PLEADINGS AND PROOF MIGHT WELL DRAW THE ISSUES
INTO SHARPER FOCUS MAKING IT UNNECESSARY FOR US TO DECIDE QUESTIONS NOT
RELEVANT TO DETERMINATION OF THE CONSTITUTIONALITY OF THE STATUTE AS
ACTUALLY APPLIED.  THUS THIS CASE HAD NOT REACHED A STAGE WHERE THE
DECISION OF A PRECISE CONSTITUTIONAL ISSUE WAS A NECESSITY. 
CONSEQUENTLY, WE REFRAIN FROM CONSIDERING ANY CONSTITUTIONAL QUESTIONS
EXCEPT THOSE CONCERNING THE ACT AS WRITTEN.  WE DO NOT DECIDE WHETHER
THE ALLEGATIONS OF THE INFORMATION, WHATEVER SHAPE THEY MIGHT
EVENTUALLY TAKE, WOULD CONSTITUTE AN APPLICATION OF THE STATUTE IN SUCH
MANNER AS TO CONTRAVENE THE FIRST AMENDMENT.  WE ONLY PASS ON THE
STATUTE ON ITS FACE; IT IS NOT IN CONFLICT WITH THE FIRST AMENDMENT. 

FOURTH.  THE DISTRICT COURT HELD, AND IT IS ARGUED HERE, THAT THE
STATUTE, AS SOUGHT TO BE APPLIED IN THE INFORMATION, VIOLATES THE
THIRTEENTH AMENDMENT WHICH PROHIBITS SLAVERY AND INVOLUNTARY
SERVITUDE.  THIS CONTENTION IS ALSO ROOTED IN THAT PART OF THE
INFORMATION WHICH PARTICULARIZES THE MEANS BY WHICH RESPONDENT
ATTEMPTED TO COMPEL ACTION BY THE LICENSEE, I.E., BY CAUSING THREE
MUSICIANS TO DISCONTINUE, AND THREE MUSICIANS NOT TO ACCEPT,
EMPLOYMENT.  THE ARGUMENT IS THAT EMPLOYEES HAVE A CONSTITUTIONAL RIGHT
TO LEAVE EMPLOYMENT SINGLY, SEE POLLOCK V. WILLIAMS, 322 U.S. 4, 17,
18, OR IN CONCERT, AND CONSEQUENTLY THAT RESPONDENT CANNOT BE GUILTY OF
A CRIME FOR DIRECTING OR CAUSING THEM TO DO SO.  FOR THE REASONS GIVEN
WITH REFERENCE TO THE PICKETING SPECIFICATION, THEREFORE, WE CONSIDER
THE THIRTEENTH AMENDMENT QUESTION ONLY WITH REFERENCE TO THE STATUTE ON
ITS FACE.  THUS CONSIDERED, IT PLAINLY DOES NOT VIOLATE THE THIRTEENTH
AMENDMENT.  WHETHER SOME POSSIBLE ATTEMPTED APPLICATION OF IT TO
PARTICULAR PERSONS IN PARTICULAR SETS OF CIRCUMSTANCES WOULD VIOLATE
THE THIRTEENTH AMENDMENT IS A QUESTION WE SHALL NOT PASS UPON UNTIL IT
IS APPROPRIATELY PRESENTED.  REVERSED AND REMANDED. 

FN1  ANOTHER GROUND, NOT ARGUED HERE, WAS THAT THE ACT REPRESENTS AN
EXERCISE OF POWER BY CONGRESS NOT DELEGATED TO THE UNITED STATES. 

FN2  THE ACT DOES NOT PROHIBIT RADIO BROADCASTERS FROM VOLUNTARILY
HIRING MORE EMPLOYEES THAN THEY NEED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I AGREE WITH THE COURT'S JUDGMENT AND OPINION BECAUSE IT HOLDS THAT
THE LEA ACT IS NOT BEYOND THE POWER OF CONGRESS TO REGULATE COMMERCE. 
I DESIRE, HOWEVER, TO ADD A FEW WORDS. 

THE CONSTITUTIONAL BASIS FOR THE LEGISLATION IS THE SAME AS THAT UPON
WHICH THE VALIDITY OF THE SHERMAN LAW RESTS.  IT IS TOO LATE IN THE DAY
TO REQUIRE ARGUMENT OR CITATION OF CASES IN SUPPORT OF THE RIGHT OF
CONGRESS TO FREE INTERSTATE COMMERCE FROM OBSTRUCTION THAT THE EXERTION
OF MONOPOLISTIC POWER MAY ENTAIL OR FROM INTERFERENCE THAT MAY
REASONABLY BE DEEMED TO PROMOTE MONOPOLY.  EQUALLY CLEAR IS IT THAT
CONGRESS MAY DIRECT ITS LEGISLATION SPECIFICALLY TOWARDS A DISCLOSED
EVIL, WITHOUT GENERALIZING ITS PROHIBITION, WHEN IN ITS JUDGMENT LIKE
EVILS HAVE NOT DISCLOSED THEMSELVES ELSEWHERE.  IT WOULD BE A
USURPATION OF THE LEGISLATIVE AUTHORITY FOR US TO FIND THAT THERE WAS
NO BASIS IN REASON FOR THE JUDGMENT OF CONGRESS THAT THE PUBLIC
INTEREST CALLED FOR LEGISLATION TO DEAL WITH WHAT IS COLLOQUIALLY
CALLED "FEATHERBEDDING" IN CONNECTION WITH THE BROADCASTING BUSINESS. 
BEYOND THAT, IT IS NOT OUR PROVINCE TO GO. 

THE DISTRICT COURT TOOK A DIFFERENT VIEW, AND ON DEFENDANT'S MOTION
DISMISSED THIS INFORMATION ON THE GROUND THAT THE STATUTE IS
UNCONSTITUTIONAL.  68 F.SUPP.  845.  SINCE THE COURT NOW HOLDS THAT THE
STATUTE IS CONSTITUTIONAL, THE CASE GOES BACK TO THE DISTRICT COURT. 

THE COURT CONJURES UP DIFFICULTIES WHICH I DO NOT SHARE.  THE CASE IS
HERE UNDER THE CRIMINAL APPEALS ACT OF 1907, 34 STAT. 1246, AS AMENDED
BY THE ACT OF MAY 9, 1942, 56 STAT. 271, 18 U.S.C. (SUPP. V, 1946) SEC.
682, WHEREBY A DIRECT REVIEW CAN BE HAD OF A DISTRICT COURT JUDGMENT
SETTING ASIDE AN INDICTMENT OR INFORMATION, IF THE DECISION OF THE
DISTRICT COURT IS BASED "UPON THE INVALIDITY OR CONSTRUCTION OF THE
STATUTE UPON WHICH THE INDICTMENT OR INFORMATION IS FOUNDED."  OUR
DECISIONS HAVE CONSTRUED THIS TO MEAN THAT REVIEW CAN BE HAD HERE ONLY
IF A DISTRICT COURT'S DECISION WAS BASED EXCLUSIVELY UPON THE
INVALIDITY OR CONSTRUCTION OF A STATUTE.  A CRIMINAL CASE CANNOT BE
REVIEWED HERE IF QUESTIONS OF CRIMINAL PLEADING - DEFECTS NOT ARISING
FROM THE STATUTE UNDER CONSIDERATION - ENTER INTO A DECISION SOUGHT TO
BE REVIEWED.  SEE UNITED STATES V. HASTINGS, 296 U.S. 188, 192, 194;
UNITED STATES V. BORDEN CO., 308 U.S. 188, 193; UNITED STATES V. SWIFT
& CO., 318 U.S. 442.  IF BOTH THE SUFFICIENCY OF CRIMINAL PLEADING AND
THE VALIDITY OR CONSTRUCTION OF THE UNDERLYING STATUTE WERE IN ISSUE
BEFORE THE DISTRICT COURT, AND VIEWS AS TO BOTH WERE INTERWOVEN IN THE
COURT'S DECISION, THIS COURT HAS NO JURISDICTION TO ENTERTAIN THE
APPEAL.  UNDER THE ACT OF MAY 9, 1942, IT MUST REMAND THE CAUSE TO THE
APPROPRIATE CIRCUIT COURT OF APPEALS.  ON THE OTHER HAND, IF THE
QUESTION OF CONSTITUTIONAL CONSTRUCTION WAS THE ISOLATED GROUND OF
DECISION BY A DISTRICT COURT DISMISSING A FEDERAL PROSECUTION, THAT IS
THE ONLY QUESTION TO BE CONSIDERED HERE AND IT MUST BE CONSIDERED
WITHIN THE SCOPE GIVEN IT BY THE DISTRICT COURT.  OTHER QUESTIONS MAY
BE IMBEDDED IN THE CASE WHICH MAY EVENTUALLY COME TO THE SURFACE.  BUT
THEY ARE NOT BROUGHT TO THE SURFACE HERE UNDER THE LIMITED, SPECIFIC
REVIEW GIVEN BY THE CRIMINAL APPEALS ACT.  IT IS TO SUCH IMPLICIT
QUESTIONS OF PLEADING, AND TO STATUTORY OR CONSTITUTIONAL QUESTIONS NOT
PASSED UPON BY A DISTRICT COURT, THAT MR. CHIEF JUSTICE HUGHES HAD
REFERENCE WHEN HE SAID, "THE GOVERNMENT'S APPEAL DOES NOT OPEN THE
WHOLE CASE."  UNITED STATES V. BORDEN CO., SUPRA, AT 193. 

THERE IS NO COMPLICATION IN THE RECORD BEFORE US TO AN EXERCISE OF
OUR JURISDICTION UNDER THE CRIMINAL APPEALS ACT.  THE DISTRICT JUDGE'S
DECISION IS WHOLLY FREE FROM ANY RULING INVOLVING CRIMINAL PLEADING. 
HE STATED PRECISELY WHAT HE DEEMED TO BE THE SOLE ISSUE BEFORE HIM AND
WHICH ALONE HE DECIDED:  "THE ONLY QUESTION BEFORE THE COURT IS THE
CONSTITUTIONAL ASPECT OF THIS STATUTE AS IT WAS WRITTEN BY CONGRESS. 
ON THIS QUESTION THE COURT IS OF THE OPINION THAT THIS STATUTE IS
UNCONSTITUTIONAL FOR THE REASONS ABOVE STATED."  68 F.SUPP.  AT 850. 

WE, THEREFORE, HAVE NO ACKNOWLEDGMENT OR INTIMATION BY THE DISTRICT
JUDGE THAT HE HAD ANY DIFFICULTY WITH THE INFORMATION AS A MATTER OF
PLEADING, OR THAT IT CARRIED ANY AMBIGUITIES WHICH HE RESOLVED ONE WAY
RATHER THAN ANOTHER.  IF THAT WERE SO, WE WOULD HAVE NO JURISDICTION TO
REVIEW HIS DECISION.  THE DISTRICT COURT FOUND CONSTITUTIONAL DEFECTS
IN THE STATUTE "AS IT WAS WRITTEN BY CONGRESS."  WE FIND THE CONTRARY. 
THEREFORE, THE INFORMATION SHOULD GO BACK TO THE DISTRICT COURT FOR
DISPOSITION.  JUST AS WE CANNOT GO BEHIND A DISTRICT COURT'S
DETERMINATION REGARDING THE SUFFICIENCY OF THE INDICTMENT AS A MATTER
OF PLEADING AS A PRELIMINARY TO PASSING ON STATUTORY VALIDITY, SO, WHEN
A NAKED QUESTION OF VALIDITY IS PRESENTED TO US, IT IS NOT FOR US TO
SCRUTINIZE THE CHARGE AND HYPOTHESIZE POSSIBILITIES WHEREBY NEW
QUESTIONS MAY ARISE OF A STATUTORY OR CONSTITUTIONAL NATURE. 

MR. JUSTICE REED, DISSENTING. 

I DISSENT FROM THE OPINION AND JUDGMENT OF THE COURT.  MY REASON FOR
DISAGREEMENT IS THAT SEC. 506(A)(1) OF THE COMMUNICATIONS ACT IS TOO
INDEFINITE IN ITS DESCRIPTION OF THE PROHIBITED ACTS TO SUPPORT AN
INFORMATION OR INDICTMENT FOR VIOLATION OF ITS PROVISIONS.  MY
OBJECTION IS NOT TO THE WORDS IN THE FIRST PARAGRAPH OF SEC. 506 THAT
MAKE UNLAWFUL IN LABOR MATTERS THE USE OF THREATS, FORCE, VIOLENCE,
INTIMIDATION OR DURESS AGAINST AN EMPLOYER.  THERE IS A BACKGROUND OF
EXPERIENCE AND COMMON UNDERSTANDING THAT ORDINARILY GIVES SUCH WORDS,
WHEN USED IN CRIMINAL STATUTES, SUFFICIENT DEFINITENESS TO ACQUAINT THE
PUBLIC WITH THE LIMITS OF THE PROSCRIBED ACTS.  WHEN SUCH WORDS ARE
USED, THEY PLACE UPON THOSE AFFECTED THE RISK OF ESTIMATING INCORRECTLY
THE SORT OF ACTION THAT MAY ULTIMATELY BE HELD TO VIOLATE THE
STATUTES.  NASH V. UNITED STATES, 229 U.S. 373. 

MY OBJECTION IS TO THE INDEFINITENESS OF THE STATUTORY DESCRIPTION OF
THE THING FOR WHICH FORCE MUST NOT BE USED - THAT IS, "TO COMPEL" A
LICENSEE UNDER THE COMMUNICATIONS ACT "TO EMPLOY  ... ANY PERSON OR
PERSONS IN EXCESS OF THE NUMBER OF EMPLOYEES NEEDED BY SUCH LICENSEE TO
PERFORM ACTUAL SERVICES." 

THIS CRIMINAL STATUTE IS THE PRODUCT OF LEGISLATION DIRECTED AT THE
CONTROL OF ACTS DEEMED EVIL BY CONGRESS.  IT IS ONE OF THE MANY
REGULATORY ACTS THAT LEGISLATIVE BODIES HAVE PASSED IN RECENT YEARS TO
MAKE UNLAWFUL CERTAIN PRACTICES IN THE FIELD OF ECONOMICS THAT SEEMED
CONTRARY TO THE PUBLIC INTEREST.  FN1  THESE STATUTES MADE NEW CRIMES. 
DEEDS THERETOFORE NOT SUBJECT TO PUNISHMENT FALL WITHIN THE GENERAL
SCOPE OF THEIR PROHIBITION.  COMMON EXPERIENCE HAS NOT CREATED A
GENERAL UNDERSTANDING OF THEIR CRIMINALITY.  CONSEQUENTLY, IN ORDER TO
ADEQUATELY INFORM THE PUBLIC OF THE LIMITATIONS ON CONDUCT, A MORE
PRECISE DEFINITION OF THE CRIME IS NECESSARY TO MEET CONSTITUTIONAL
REQUIREMENTS.  FN2    ANGLO-AMERICAN LAW DOES NOT PUNISH CITIZENS FOR
VIOLATIONS OF VAGUE AND UNCERTAIN STATUTES.  THERE IS NO PLACE IN OUR
CRIMINAL LAW FOR ACTS DEFINED AS DETRIMENTAL TO THE INTERESTS OF THE
STATE.  A STATUTE IS INVALID WHEN "SO VAGUE THAT MEN OF COMMON
INTELLIGENCE MUST NECESSARILY GUESS AT ITS MEANING."  269 U.S. AT 391. 
IT SEEMS TO ME THAT THIS VICE EXISTS IN THIS SECTION OF THE CHALLENGED
ACT.  HOW CAN A MAN OR A JURY POSSIBLY KNOW HOW MANY MEN ARE "NEEDED"
"TO PERFORM ACTUAL SERVICES" IN BROADCASTING?  WHAT MUST THE QUALITY OF
THE PROGRAM BE?  HOW SKILLFUL ARE THE EMPLOYEES IN THE PERFORMANCE OF
THEIR TASK?  DOES ONE WEIGH THE CAPACITY OF THE EMPLOYEE OR THE
MANAGERIAL ABILITY OF THE EMPLOYER?  IS THE DESIRABILITY OF SHORT HOURS
TO SPREAD THE WORK TO BE EVALUATED?  OR IS THE STANDARD THE ADVANTAGE
IN TAKE-HOME PAY FOR OVERTIME WORK? 

THE GOVERNMENT SEEKS TO AVOID THE DIFFICULTY BY INTERPRETING THE
"THE BILL WAS NOT INTENDED TO APPLY TO MERE DIFFERENCES OF OPINION AS
TO WHETHER MEN WERE OVERWORKED; IT ONLY FITS DELIBERATE DEMANDS FOR
PAYMENT TO ADDITIONAL EMPLOYEES MADE IN COMPLETE DISREGARD FOR THE
EMPLOYER'S NEED AND WITHOUT ANY JUSTIFICATION FROM THE VIEWPOINT OF
ACTUALLY GETTING THE EMPLOYER'S BUSINESS DONE.  ...  IF PARAGRAPH (1)
IS READ IN ITS CONTEXT, ALONG WITH THE SUCCEEDING PARAGRAPHS, IT IS
CLEAR WHAT CONGRESS WAS DRIVING AT WHEN IT CHARACTERIZED THE ACT AS ONE
TO PREVENT EXTORTION, AS DISTINCT FROM BONA FIDE DEMANDS RELATING TO
CONDITIONS OF EMPLOYMENT."  THIS INTERPRETATION SEEMS TO ME TO FLY IN
THE FACE OF SEC. 506(1).  THERE IS ANOTHER SUBSECTION TO WHICH THE
LANGUAGE MIGHT APPLY.  FN3  THIS CLEARLY DEFINES THE PROHIBITED ACTS. 
IF THE CONGRESS WISHES TO FIX THE MAXIMUM NUMBER OF EMPLOYEES THAT A
LICENSEE MAY EMPLOY IN STATIONS OF VARIOUS SIZES, IT MAY, OF COURSE, BE
DONE.  OR, IF IT IS IMPRACTICAL FOR CONGRESS TO ACT BECAUSE OF THE
VARYING SITUATIONS, THE NUMBER MAY BE LEFT TO REGULATIONS OF THE
FEDERAL COMMUNICATIONS COMMISSION OR OTHER REGULATORY BODY. 

THIS IS A CRIMINAL STATUTE.  THE PRINCIPLE THAT SUCH STATUTES MUST BE
SO WRITTEN THAT INTELLIGENT MEN MAY KNOW WHAT ACTS OF THEIRS WILL
JEOPARDIZE THEIR LIFE, LIBERTY OR PROPERTY IS OF IMPORTANCE TO ALL. 
THAT PRINCIPLE REQUIRES, I THINK, A DETERMINATION THAT THIS SECTION OF
THE COMMUNICATIONS ACT IS INVALID. 

FN1  EMERGENCY PRICE CONTROL ACT, 56 STAT. 33, SEC. 205(B), 50 U.S.C.
APP. (SUPP. V, 1946) SEC. 925(B); FAIR LABOR STANDARDS ACT, 52 STAT.
1069, SEC. 16(A), 29 U.S.C. SEC. 216(A); NATIONAL LABOR RELATIONS ACT,
49 STAT. 456, SEC. 12, 29 U.S.C. SEC. 162; FEDERAL CORRUPT PRACTICES
ACT, AS AMENDED, 57 STAT. 167, SEC. 9, 50 U.S.C. APP. (SUPP. V, 1946)
SEC. 1509. 

FN2  UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81; CLINE V. FRINK
DAIRY CO., 274 U.S. 445; INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234
U.S. 216; CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385.  SEE
GORIN V. UNITED STATES, 312 U.S. 19, 26. 

FN3  60 STAT. 89, SEC. 506(A)(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; ...  " 

MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE JOIN IN THIS DISSENT. 
..END :



UNITED STATES V. CALIFORNIA, 332 U.S. 19 


ARGUED MARCH 13-14, 1947.  - DECIDED JUNE 23, 1947.* *FOR ORDER AND
DECREE ENTERED OCTOBER 27, 1947, SEE POST, P. 804. 


1.  THE COMPLAINT FILED IN THIS COURT BY THE UNITED STATES AGAINST THE
STATE OF CALIFORNIA TO DETERMINE WHICH GOVERNMENT OWNS, OR HAS
PARAMOUNT RIGHTS IN AND POWER OVER, THE SUBMERGED LAND OFF THE COAST OF
CALIFORNIA BETWEEN THE LOW-WATER MARK AND THE THREE-MILE LIMIT AND HAS
A SUPERIOR RIGHT TO TAKE OR AUTHORIZE THE TAKING OF THE VAST QUANTITIES
OF OIL AND GAS UNDERNEATH THAT LAND (MUCH OF WHICH HAS ALREADY BEEN,
AND MORE OF WHICH IS ABOUT TO BE, TAKEN BY OR UNDER AUTHORITY OF THE
STATE) PRESENTS A CASE OR CONTROVERSY UNDER ARTICLE III, SEC. 2, OF THE
CONSTITUTION.  PP. 24-25. 

2.  THE FACT THAT THE COASTAL LINE IS INDEFINITE AND THAT ITS EXACT
LOCATION WILL INVOLVE MANY COMPLEXITIES AND DIFFICULTIES PRESENTS NO
INSUPERABLE OBSTACLE TO THE EXERCISE OF THE HIGHLY IMPORTANT
JURISDICTION CONFERRED ON THIS COURT BY ARTICLE III, SEC. 2, OF THE
CONSTITUTION.  PP. 25-26. 

3.  CONGRESS HAS NEITHER EXPLICITLY NOR BY IMPLICATION STRIPPED THE
ATTORNEY GENERAL OF THE POWER TO INVOKE THE JURISDICTION OF THIS COURT
IN THIS FEDERAL-STATE CONTROVERSY, PURSUANT TO HIS BROAD AUTHORITY
UNDER 5 U.S.C. SECS. 291, 309, TO PROTECT THE GOVERNMENT'S INTERESTS
THROUGH THE COURTS.  PP. 26-29. 

4.  CALIFORNIA IS NOT THE OWNER OF THE THREE-MILE MARGINAL BELT ALONG
ITS COAST; AND THE FEDERAL GOVERNMENT RATHER THAN THE STATE HAS
PARAMOUNT RIGHTS IN AND POWER OVER THAT BELT, AN INCIDENT TO WHICH IS
FULL DOMINION OVER THE RESOURCES OF THE SOIL UNDER THAT WATER AREA,
INCLUDING OIL.  PP. 29-39. 

(A)  THERE IS NO SUBSTANTIAL SUPPORT IN HISTORY FOR THE VIEW THAT THE
THIRTEEN ORIGINAL COLONIES SEPARATELY ACQUIRED OWNERSHIP OF THE THREE
MILE BELT BEYOND THE LOW-WATER MARK OR THE SOIL UNDER IT, EVEN IF THEY
DID ACQUIRE ELEMENTS OF THE SOVEREIGNTY OF THE ENGLISH CROWN BY THEIR
REVOLUTION AGAINST IT.  POLLARD'S LESSEE V. HAGAN, 3 HOW.  212,
DISTINGUISHED.  PP. 29-33. 

(B)  ACQUISITION OF THE THREE-MILE BELT HAS BEEN ACCOMPLISHED BY THE
NATIONAL GOVERNMENT, AND PROTECTION AND CONTROL OF IT HAS BEEN AND IS A
FUNCTION OF NATIONAL EXTERNAL SOVEREIGNTY.  PP. 33-35. 

(C)  THE ASSERTION BY THE POLITICAL AGENCIES OF THIS NATION OF BROAD
DOMINION AND CONTROL OVER THE THREE-MILE MARGINAL BELT IS BINDING UPON
THIS COURT.  PP. 33-34. 

(D)  THE FACT THAT THE STATE HAS BEEN AUTHORIZED TO EXERCISE LOCAL
POLICE POWER FUNCTIONS IN THE PART OF THE MARGINAL BELT WITHIN ITS
DECLARED BOUNDARIES DOES NOT DETRACT FROM THE FEDERAL GOVERNMENT'S
PARAMOUNT RIGHTS IN AND POWER OVER THIS AREA.  P. 36. 

(E)  MANCHESTER V. MASSACHUSETTS, 139 U.S. 240; LOUISIANA V.
MISSISSIPPI, 202 U.S. 1; THE ABBY DODGE, 223 U.S. 166, DISTINGUISHED. 
PP. 36-38. 

5.  THE FEDERAL GOVERNMENT'S PARAMOUNT RIGHTS IN THE THREE-MILE BELT
HAVE NOT BEEN LOST BY REASON OF THE CONDUCT OF ITS AGENTS, NOR BY THIS
CONDUCT IS THE GOVERNMENT BARRED FROM ENFORCING ITS RIGHTS BY REASON OF
PRINCIPLES SIMILAR TO LACHES, ESTOPPEL OR ADVERSE POSSESSION.  PP. 39
40. 

(A)  THE GOVERNMENT, WHICH HOLDS ITS INTERESTS HERE AS ELSEWHERE IN
TRUST FOR ALL THE PEOPLE, IS NOT TO BE DEPRIVED OF THOSE INTERESTS BY
THE ORDINARY COURT RULES DESIGNED PARTICULARLY FOR PRIVATE DISPUTES
OVER INDIVIDUALLY OWNED PIECES OF PROPERTY.  P. 40. 

(B)  OFFICERS OF THE GOVERNMENT WHO HAVE NO AUTHORITY AT ALL TO
DISPOSE OF GOVERNMENT PROPERTY CANNOT BY THEIR CONDUCT CAUSE THE
GOVERNMENT TO LOSE ITS VALUABLE RIGHTS BY THEIR ACQUIESCENCE, LACHES,
OR FAILURE TO ACT.  P. 40. 

6.  THE GREAT NATIONAL QUESTION WHETHER THE STATE OR THE NATION HAS
PARAMOUNT RIGHTS IN AND POWER OVER THE THREE-MILE BELT IS NOT DEPENDENT
UPON WHAT EXPENSES MAY HAVE BEEN INCURRED BY PUBLIC OR PRIVATE AGENCIES
UPON MISTAKEN ASSUMPTIONS.  P. 40. 

7.  IT IS NOT TO BE ASSUMED THAT CONGRESS, WHICH HAS CONSTITUTIONAL
CONTROL OVER GOVERNMENT PROPERTY, WILL SO EXECUTE ITS POWERS AS TO
BRING ABOUT INJUSTICES TO STATES, THEIR SUBDIVISIONS, OR PERSONS ACTING
PURSUANT TO THEIR PERMISSION.  P. 40. 

8.  THE UNITED STATES IS ENTITLED TO A DECREE DECLARING ITS RIGHTS IN
THE AREA IN QUESTION AS AGAINST CALIFORNIA AND ENJOINING CALIFORNIA AND
ALL PERSONS CLAIMING UNDER IT FROM CONTINUING TO TRESPASS UPON THE AREA
IN VIOLATION OF THE RIGHTS OF THE UNITED STATES.  PP. 22-23, 41. 

UNITED STATES V. CALIFORNIA. 

NO. 12, ORIGINAL. 

THE CASE IS STATED IN THE FIRST PARAGRAPH OF THE OPINION, AND THE
CONCLUSION THAT THE UNITED STATES IS ENTITLED TO THE RELIEF PRAYED FOR
IS REPORTED AT PAGE 41. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BY ITS ATTORNEY GENERAL AND SOLICITOR GENERAL
BROUGHT THIS SUIT AGAINST THE STATE OF CALIFORNIA INVOKING OUR ORIGINAL
JURISDICTION UNDER ARTICLE III, SEC. 2, OF THE CONSTITUTION WHICH
PROVIDES THAT "IN ALL CASES  ...  IN WHICH A STATE SHALL BE PARTY, THE
SUPREME COURT SHALL HAVE ORIGINAL JURISDICTION."  THE COMPLAINT ALLEGES
THAT THE UNITED STATES "IS THE OWNER IN FEE SIMPLE OF, OR POSSESSED OF
PARAMOUNT RIGHTS IN AND POWERS OVER, THE LANDS, MINERALS AND OTHER
THINGS OF VALUE UNDERLYING THE PACIFIC OCEAN, LYING SEAWARD OF THE
ORDINARY LOW WATER MARK ON THE COAST OF CALIFORNIA AND OUTSIDE OF THE
INLAND WATERS OF THE STATE, EXTENDING SEAWARD THREE NAUTICAL MILES AND
BOUNDED ON THE NORTH AND SOUTH, RESPECTIVELY, BY THE NORTHERN AND
SOUTHERN BOUNDARIES OF THE STATE OF CALIFORNIA."  IT IS FURTHER ALLEGED
THAT CALIFORNIA, ACTING PURSUANT TO STATE STATUTES, BUT WITHOUT
AUTHORITY FROM THE UNITED STATES, HAS NEGOTIATED AND EXECUTED NUMEROUS
LEASES WITH PERSONS AND CORPORATIONS PURPORTING TO AUTHORIZE THEM TO
ENTER UPON THE DESCRIBED OCEAN AREA TO TAKE PETROLEUM, GAS, AND OTHER
MINERAL DEPOSITS, AND THAT THE LESSEES HAVE DONE SO, PAYING TO
CALIFORNIA LARGE SUMS OF MONEY IN RENTS AND ROYALTIES FOR THE PETROLEUM
PRODUCTS TAKEN.  THE PRAYER IS FOR A DECREE DECLARING THE RIGHTS OF THE
UNITED STATES IN THE AREA AS AGAINST CALIFORNIA AND ENJOINING
CALIFORNIA AND ALL PERSONS CLAIMING UNDER IT FROM CONTINUING TO
TRESPASS UPON THE AREA IN VIOLATION OF THE RIGHTS OF THE UNITED
STATES. 

CALIFORNIA HAS FILED AN ANSWER TO THE COMPLAINT.  IT ADMITS THAT
PERSONS HOLDING LEASES FROM CALIFORNIA, OR THOSE CLAIMING UNDER IT,
HAVE BEEN EXTRACTING PETROLEUM PRODUCTS FROM THE LAND UNDER THE THREE
MILE OCEAN BELT IMMEDIATELY ADJACENT TO CALIFORNIA.  THE BASIS OF
CALIFORNIA'S ASSERTED OWNERSHIP IS THAT A BELT EXTENDING THREE ENGLISH
MILES FROM LOW WATER MARK LIES WITHIN THE ORIGINAL BOUNDARIES OF THE
STATE, CAL. CONST. ART. XII (1849); FN1  THAT THE ORIGINAL THIRTEEN
STATES ACQUIRED FROM THE CROWN OF ENGLAND TITLE TO ALL LANDS WITHIN
THEIR BOUNDARIES UNDER NAVIGABLE WATERS, INCLUDING A THREE-MILE BELT IN
ADJACENT SEAS; AND THAT SINCE CALIFORNIA WAS ADMITTED AS A STATE ON AN
"EQUAL FOOTING" WITH THE ORIGINAL STATES, CALIFORNIA AT THAT TIME
BECAME VESTED WITH TITLE TO ALL SUCH LANDS.  THE ANSWER FURTHER SETS UP
SEVERAL "AFFIRMATIVE" DEFENSES.  AMONG THESE ARE THAT CALIFORNIA SHOULD
BE ADJUDGED TO HAVE TITLE UNDER A DOCTRINE OF PRESCRIPTION; BECAUSE OF
AN ALLEGED LONG-EXISTING CONGRESSIONAL POLICY OF ACQUIESCENCE IN
CALIFORNIA'S ASSERTED OWNERSHIP; BECAUSE OF ESTOPPEL OR LACHES; AND,
FINALLY, BY APPLICATION OF THE RULE OF RES JUDICATA.  FN2 

AFTER CALIFORNIA'S ANSWER WAS FILED, THE UNITED STATES MOVED FOR
JUDGMENT AS PRAYED FOR IN THE COMPLAINT ON THE GROUND THAT THE
PURPORTED DEFENSES WERE NOT SUFFICIENT IN LAW.  THE LEGAL ISSUES THUS
RAISED HAVE BEEN EXHAUSTIVELY PRESENTED BY COUNSEL FOR THE PARTIES,
BOTH BY BRIEF AND ORAL ARGUMENT.  NEITHER HAS SUGGESTED ANY NECESSITY
FOR THE INTRODUCTION OF EVIDENCE, AND WE PERCEIVE NO SUCH NECESSITY AT
THIS STAGE OF THE CASE.  IT IS NOW RIPE FOR DETERMINATION OF THE BASIC
LEGAL ISSUES PRESENTED BY THE MOTION.  BUT BEFORE REACHING THE MERITS
OF THESE ISSUES, WE MUST FIRST CONSIDER QUESTIONS RAISED IN
CALIFORNIA'S BRIEF AND ORAL ARGUMENT CONCERNING THE GOVERNMENT'S RIGHT
TO AN ADJUDICATION OF ITS CLAIM IN THIS PROCEEDING. 

FIRST.  IT IS CONTENDED THAT THE PLEADINGS PRESENT NO CASE OR
CONTROVERSY UNDER ARTICLE III, SEC. 2, OF THE CONSTITUTION.  THE
CONTENTION RESTS IN THE FIRST PLACE ON AN ARGUMENT THAT THERE IS NO
CASE OR CONTROVERSY IN A LEGAL SENSE, BUT ONLY A DIFFERENCE OF OPINION
BETWEEN FEDERAL AND STATE OFFICIALS.  IT IS TRUE THAT THERE IS A
DIFFERENCE OF OPINION BETWEEN FEDERAL AND STATE OFFICERS.  BUT THERE IS
FAR MORE THAN THAT.  THE POINT OF DIFFERENCE IS AS TO WHO OWNS, OR HAS
PARAMOUNT RIGHTS IN AND POWER OVER SEVERAL THOUSAND SQUARE MILES OF
LAND UNDER THE OCEAN OFF THE COAST OF CALIFORNIA.  THE DIFFERENCE
INVOLVES THE CONFLICTING CLAIMS OF FEDERAL AND STATE OFFICIALS AS TO
WHICH GOVERNMENT, STATE OR FEDERAL, HAS A SUPERIOR RIGHT TO TAKE OR
AUTHORIZE THE TAKING OF THE VAST QUANTITIES OF OIL AND GAS UNDERNEATH
THAT LAND, MUCH OF WHICH HAS ALREADY BEEN, AND MORE OF WHICH IS ABOUT
TO BE, TAKEN BY OR UNDER AUTHORITY OF THE STATE.  SUCH CONCRETE
CONFLICTS AS THESE CONSTITUTE A CONTROVERSY IN THE CLASSIC LEGAL SENSE,
AND ARE THE VERY KIND OF DIFFERENCES WHICH CAN ONLY BE SETTLED BY
AGREEMENT, ARBITRATION, FORCE, OR JUDICIAL ACTION.  THE CASE
PRINCIPALLY RELIED UPON BY CALIFORNIA, UNITED STATES V. WEST VIRGINIA,
295 U.S. 463, DOES NOT SUPPORT ITS CONTENTION.  FOR HERE THERE IS A
CLAIM BY THE UNITED STATES, ADMITTED BY CALIFORNIA, THAT CALIFORNIA HAS
INVADED THE TITLE OR PARAMOUNT RIGHT ASSERTED BY THE UNITED STATES TO A
LARGE AREA OF LAND AND THAT CALIFORNIA HAS CONVERTED TO ITS OWN USE OIL
WHICH WAS EXTRACTED FROM THAT LAND.  CF. UNITED STATES V. WEST
VIRGINIA, SUPRA, 471.  THIS ALONE WOULD SUFFICIENTLY ESTABLISH THE KIND
OF CONCRETE, ACTUAL CONFLICT OF WHICH WE HAVE JURISDICTION UNDER
ARTICLE III.  THE JUSTICIABILITY OF THIS CONTROVERSY RESTS THEREFORE ON
CONFLICTING CLAIMS OF ALLEGED INVASIONS OF INTERESTS IN PROPERTY AND ON
CONFLICTING CLAIMS OF GOVERNMENTAL POWERS TO AUTHORIZE ITS USE.  UNITED
STATES V. TEXAS, 143 U.S. 621, 646, 648; UNITED STATES V. MINNESOTA,
270 U.S. 181, 194; NEBRASKA V. WYOMING, 325 U.S. 589, 608. 

NOR CAN WE SUSTAIN THAT PHASE OF THE STATE'S CONTENTION AS TO THE
ABSENCE OF A CASE OR CONTROVERSY RESTING ON THE ARGUMENT THAT IT IS
IMPOSSIBLE TO IDENTIFY THE SUBJECT MATTER OF THE SUIT SO AS TO RENDER A
PROPER DECREE.  THE LAND CLAIMED BY THE GOVERNMENT, IT IS SAID, HAS NOT
BEEN SUFFICIENTLY DESCRIBED IN THE COMPLAINT SINCE THE ONLY SHOREWARD
BOUNDARY OF SOME SEGMENTS OF THE MARGINAL BELT IS THE LINE BETWEEN THAT
BELT AND THE STATE'S INLAND WATERS.  AND THE GOVERNMENT INCLUDES IN THE
TERM "INLAND WATERS" PORTS, HARBORS, BAYS, RIVERS, AND LAKES.  POINTING
OUT THE NUMEROUS DIFFICULTIES IN FIXING THE POINT WHERE THESE INLAND
WATERS END AND THE MARGINAL SEA BEGINS, THE STATE ARGUES THAT THE
PLEADINGS ARE THEREFORE WHOLLY DEVOID OF A BASIS FOR A DEFINITE DECREE,
THE KIND OF DECREE ESSENTIAL TO DISPOSITION OF A CASE LIKE THIS. 
THEREFORE, CALIFORNIA CONCLUDES, ALL THAT IS PRAYED FOR IS AN ABSTRACT
DECLARATION OF RIGHTS CONCERNING AN UNIDENTIFIED THREE-MILE BELT, WHICH
COULD ONLY BE USED AS A BASIS FOR SUBSEQUENT ACTIONS IN WHICH SPECIFIC
RELIEF COULD BE GRANTED AS TO PARTICULAR LOCALITIES. 

WE MAY ASSUME THAT LOCATION OF THE EXACT COASTAL LINE WILL INVOLVE
MANY COMPLEXITIES AND DIFFICULTIES.  BUT THAT DOES NOT MAKE THIS ANY
THE LESS A JUSTICIABLE CONTROVERSY.  CERTAINLY DEMARCATION OF THE
BOUNDARY IS NOT AN IMPOSSIBILITY.  DESPITE DIFFICULTIES THIS COURT HAS
PREVIOUSLY ADJUDICATED CONTROVERSIES CONCERNING SUBMERGED LAND
BOUNDARIES.  SEE NEW JERSEY V. DELAWARE, 291 U.S. 361, 295 U.S. 694;
BORAX, LTD. V. LOS ANGELES, 296 U.S. 10, 21-27; OKLAHOMA V. TEXAS, 256
U.S. 70, 602.  AND THERE IS NO REASON WHY, AFTER DETERMINING IN GENERAL
WHO OWNS THE THREE-MILE BELT HERE INVOLVED, THE COURT MIGHT NOT LATER,
IF NECESSARY, HAVE MORE DETAILED HEARINGS IN ORDER TO DETERMINE WITH
GREATER DEFINITENESS PARTICULAR SEGMENTS OF THE BOUNDARY.  OKLAHOMA V.
TEXAS, 258 U.S. 574, 582.  SUCH PRACTICE IS COMMONPLACE IN ACTIONS
SIMILAR TO THIS WHICH ARE IN THE NATURE OF EQUITABLE PROCEEDINGS.  SEE
E.G. OKLAHOMA V. TEXAS, 256 U.S. 602, 608-609; 260 U.S. 606, 625, 261
U.S. 340.  CALIFORNIA'S CONTENTION CONCERNING THE INDEFINITENESS OF THE
CLAIM PRESENTS NO INSUPERABLE OBSTACLE TO THE EXERCISE OF THE HIGHLY
IMPORTANT JURISDICTION CONFERRED ON US BY ARTICLE III OF THE
CONSTITUTION. 

SECOND.  IT IS CONTENDED THAT WE SHOULD DISMISS THIS ACTION ON THE
GROUND THAT THE ATTORNEY GENERAL HAS NOT BEEN GRANTED POWER EITHER TO
FILE OR TO MAINTAIN IT.  IT IS NOT DENIED THAT CONGRESS HAS GIVEN A
VERY BROAD AUTHORITY TO THE ATTORNEY GENERAL TO INSTITUTE AND CONDUCT
LITIGATION IN ORDER TO ESTABLISH AND SAFEGUARD GOVERNMENT RIGHTS AND
PROPERTIES.  FN3  THE ARGUMENT IS THAT CONGRESS HAS FOR A LONG PERIOD
OF YEARS ACTED IN SUCH A WAY AS TO MANIFEST A CLEAR POLICY TO THE
EFFECT THAT THE STATES, NOT THE FEDERAL GOVERNMENT, HAVE LEGAL TITLE TO
THE LAND UNDER THE THREE-MILE BELT.  ALTHOUGH CONGRESS HAS NOT
EXPRESSLY DECLARED SUCH A POLICY, WE ARE ASKED TO IMPLY IT FROM CERTAIN
CONDUCT OF CONGRESS AND OTHER GOVERNMENTAL AGENCIES CHARGED WITH
RESPONSIBILITIES CONCERNING THE NATIONAL DOMAIN.  AND, IN EFFECT, WE
ARE URGED TO INFER THAT CONGRESS HAS BY IMPLICATION AMENDED ITS LONG
EXISTING STATUTES WHICH GRANT THE ATTORNEY GENERAL BROAD POWERS TO
INSTITUTE AND MAINTAIN COURT PROCEEDINGS IN ORDER TO SAFEGUARD NATIONAL
INTERESTS. 

AN ACT PASSED BY CONGRESS AND SIGNED BY THE PRESIDENT COULD, OF
COURSE, LIMIT THE POWER PREVIOUSLY GRANTED THE ATTORNEY GENERAL TO
PROSECUTE CLAIMS FOR THE GOVERNMENT.  FOR ARTICLE IV, SEC. 3, CL. 2 OF
THE CONSTITUTION VESTS IN CONGRESS "POWER TO DISPOSE OF AND MAKE ALL
NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY OR OTHER
PROPERTY BELONGING TO THE UNITED STATES ...  "  WE HAVE SAID THAT THE
CONSTITUTIONAL POWER OF CONGRESS IN THIS RESPECT IS WITHOUT
LIMITATION.  UNITED STATES V. SAN FRANCISCO, 310 U.S. 16, 29-30.  THUS
NEITHER THE COURTS NOR THE EXECUTIVE AGENCIES COULD PROCEED CONTRARY TO
AN ACT OF CONGRESS IN THIS CONGRESSIONAL AREA OF NATIONAL POWER. 

BUT NO ACT OF CONGRESS HAS AMENDED THE STATUTES WHICH IMPOSE ON THE
ATTORNEY GENERAL THE AUTHORITY AND THE DUTY TO PROTECT THE GOVERNMENT'S
INTERESTS THROUGH THE COURTS.  SEE IN RE COOPER, 143 U.S. 472, 502
503.  THAT CONGRESS TWICE FAILED TO GRANT THE ATTORNEY GENERAL SPECIFIC
AUTHORITY TO FILE SUIT AGAINST CALIFORNIA,  FN4  IS NOT A SUFFICIENT
BASIS UPON WHICH TO REST A RESTRICTION OF THE ATTORNEY GENERAL'S
STATUTORY AUTHORITY.  AND NO MORE CAN WE REACH SUCH A CONCLUSION
BECAUSE BOTH HOUSES OF CONGRESS PASSED A JOINT RESOLUTION QUITCLAIMING
TO THE ADJACENT STATES A THREE-MILE BELT OF ALL LAND SITUATED UNDER THE
OCEAN BEYOND THE LOW WATER MARK, EXCEPT THOSE WHICH THE GOVERNMENT HAD
PREVIOUSLY ACQUIRED BY PURCHASE, CONDEMNATION, OR DONATION.  FN5 THIS
JOINT RESOLUTION WAS VETOED BY THE PRESIDENT.  FN6  HIS VETO WAS
SUSTAINED.  FN7  PLAINLY, THE RESOLUTION DOES NOT REPRESENT AN EXERCISE
OF THE CONSTITUTIONAL POWER OF CONGRESS TO DISPOSE OF PUBLIC PROPERTY
UNDER ARTICLE IV, SEC. 3, CL. 2. 

NEITHER THE MATTERS TO WHICH WE HAVE SPECIFICALLY REFERRED, NOR ANY
OTHERS RELIED ON BY CALIFORNIA, AFFORD SUPPORT FOR A HOLDING THAT
CONGRESS HAS EITHER EXPLICITLY OR BY IMPLICATION STRIPPED THE ATTORNEY
GENERAL OF HIS STATUTORILY GRANTED POWER TO INVOKE OUR JURISDICTION IN
THIS FEDERAL-STATE CONTROVERSY.  THIS BRINGS US TO THE MERITS OF THE
CASE. 

THIRD.  THE CRUCIAL QUESTION ON THE MERITS IS NOT MERELY WHO OWNS THE
BARE LEGAL TITLE TO THE LANDS UNDER THE MARGINAL SEA.  THE UNITED
STATES HERE ASSERTS RIGHTS IN TWO CAPACITIES TRANSCENDING THOSE OF A
MERE PROPERTY OWNER.  IN ONE CAPACITY IT ASSERTS THE RIGHT AND
RESPONSIBILITY TO EXERCISE WHATEVER POWER AND DOMINION ARE NECESSARY TO
PROTECT THIS COUNTRY AGAINST DANGERS TO THE SECURITY AND TRANQUILITY OF
ITS PEOPLE INCIDENT TO THE FACT THAT THE UNITED STATES IS LOCATED
IMMEDIATELY ADJACENT TO THE OCEAN.  THE GOVERNMENT ALSO APPEARS IN ITS
CAPACITY AS A MEMBER OF THE FAMILY OF NATIONS.  IN THAT CAPACITY IT IS
RESPONSIBLE FOR CONDUCTING UNITED STATES RELATIONS WITH OTHER NATIONS. 
IT ASSERTS THAT PROPER EXERCISE OF THESE CONSTITUTIONAL
RESPONSIBILITIES REQUIRES THAT IT HAVE POWER, UNENCUMBERED BY STATE
COMMITMENTS, ALWAYS TO DETERMINE WHAT AGREEMENTS WILL BE MADE
CONCERNING THE CONTROL AND USE OF THE MARGINAL SEA AND THE LAND UNDER
IT.  SEE MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 403-408; UNITED STATES
V. MINNESOTA, 270 U.S. 181, 194.  IN THE LIGHT OF THE FOREGOING, OUR
QUESTION IS WHETHER THE STATE OR THE FEDERAL GOVERNMENT HAS THE
PARAMOUNT RIGHT AND POWER TO DETERMINE IN THE FIRST INSTANCE WHEN, HOW,
AND BY WHAT AGENCIES, FOREIGN OR DOMESTIC, THE OIL AND OTHER RESOURCES
OF THE SOIL OF THE MARGINAL SEA, KNOWN OR HEREAFTER DISCOVERED, MAY BE
EXPLOITED. 

CALIFORNIA CLAIMS THAT IT OWNS THE RESOURCES OF THE SOIL UNDER THE
THREE-MILE MARGINAL BELT AS AN INCIDENT TO THOSE ELEMENTS OF
SOVEREIGNTY WHICH IT EXERCISES IN THAT WATER AREA.  THE STATE POINTS
OUT THAT ITS ORIGINAL CONSTITUTION, ADOPTED IN 1849 BEFORE THAT STATE
WAS ADMITTED TO THE UNION, INCLUDED WITHIN THE STATE'S BOUNDARY THE
WATER AREA EXTENDING THREE ENGLISH MILES FROM THE SHORE, CAL. CONST.
(1849) ART. XII; THAT THE ENABLING ACT WHICH ADMITTED CALIFORNIA TO THE
UNION RATIFIED THE TERRITORIAL BOUNDARY THUS DEFINED; AND THAT
CALIFORNIA WAS ADMITTED "ON AN EQUAL FOOTING WITH THE ORIGINAL STATES
IN ALL RESPECTS WHATEVER," 9 STAT. 452.  WITH THESE PREMISES ADMITTED,
CALIFORNIA CONTENDS THAT ITS OWNERSHIP FOLLOWS FROM THE RULE ORIGINALLY
ANNOUNCED IN POLLARD'S LESSEE V. HAGAN, 3 HOW.  212; SEE ALSO MARTIN V.
WADDELL, 16 PET. 367, 410.  IN THE POLLARD CASE IT WAS HELD, IN EFFECT,
THAT THE ORIGINAL STATES OWNED IN TRUST FOR THEIR PEOPLE THE NAVIGABLE
TIDEWATERS BETWEEN HIGH AND LOW WATER MARK WITHIN EACH STATE'S
BOUNDARIES, AND THE SOIL UNDER THEM, AS AN INSEPARABLE ATTRIBUTE OF
STATE SOVEREIGNTY.  CONSEQUENTLY, IT WAS DECIDED THAT ALABAMA, BECAUSE
ADMITTED INTO THE UNION ON "AN EQUAL FOOTING" WITH THE OTHER STATES,
HAD THEREBY BECOME THE OWNER OF THE TIDELANDS WITHIN ITS BOUNDARIES. 
THUS THE TITLE OF ALABAMA'S TIDELANDS GRANTEE WAS SUSTAINED AS VALID
AGAINST THAT OF A CLAIMANT HOLDING UNDER A UNITED STATES GRANT MADE
SUBSEQUENT TO ALABAMA'S ADMISSION AS A STATE. 

THE GOVERNMENT DOES NOT DENY THAT UNDER THE POLLARD RULE, AS
EXPLAINED IN LATER CASES,  FN8 CALIFORNIA HAS A QUALIFIED OWNERSHIP
FN9  OF LANDS UNDER INLAND NAVIGABLE WATERS SUCH AS RIVERS, HARBORS,
AND EVEN TIDELANDS DOWN TO THE LOW WATER MARK.  IT DOES QUESTION THE
VALIDITY OF THE RATIONALE IN THE POLLARD CASE THAT OWNERSHIP OF SUCH
WATER AREAS, ANY MORE THAN OWNERSHIP OF UPLANDS, IS A NECESSARY
INCIDENT OF THE STATE SOVEREIGNTY CONTEMPLATED BY THE "EQUAL FOOTING"
CLAUSE.  CF. UNITED STATES V. OREGON, 295 U.S. 1, 14.  FOR THIS REASON,
AMONG OTHERS, IT ARGUES THAT THE POLLARD RULE SHOULD NOT BE EXTENDED SO
AS TO APPLY TO LANDS UNDER THE OCEAN.  IT STRESSES THAT THE THIRTEEN
ORIGINAL COLONIES DID NOT OWN THE MARGINAL BELT; THAT THE FEDERAL
GOVERNMENT DID NOT SERIOUSLY ASSERT ITS INCREASINGLY GREATER RIGHTS IN
THIS AREA UNTIL AFTER THE FORMATION OF THE UNION; THAT IT HAS NOT
BESTOWED ANY OF THESE RIGHTS UPON THE STATES, BUT HAS RETAINED THEM AS
APPURTENANCES OF NATIONAL SOVEREIGNTY.  AND THE GOVERNMENT INSISTS THAT
NO PREVIOUS CASE IN THIS COURT HAS INVOLVED OR DECIDED CONFLICTING
CLAIMS OF A STATE AND THE FEDERAL GOVERNMENT TO THE THREE-MILE BELT IN
A WAY WHICH REQUIRES OUR EXTENSION OF THE POLLARD INLAND WATER RULE TO
THE OCEAN AREA. 

IT WOULD UNDULY PROLONG OUR OPINION TO DISCUSS IN DETAIL THE
MULTITUDE OF REFERENCES TO WHICH THE ABLE BRIEFS OF THE PARTIES HAVE
CITED US WITH REFERENCE TO THE EVOLUTION OF POWERS OVER MARGINAL SEAS
EXERCISED BY ADJACENT COUNTRIES.  FROM ALL THE WEALTH OF MATERIAL
SUPPLIED, HOWEVER, WE CANNOT SAY THAT THE THIRTEEN ORIGINAL COLONIES
SEPARATELY ACQUIRED OWNERSHIP TO THE THREE-MILE BELT OR THE SOIL UNDER
IT,  FN10  EVEN IF THEY DID ACQUIRE ELEMENTS OF THE SOVEREIGNTY OF THE
ENGLISH CROWN BY THEIR REVOLUTION AGAINST IT.  CF. UNITED STATES V.
CURTISS-WRIGHT EXPORT CORP., 299 U.S. 304, 316. 

AT THE TIME THIS COUNTRY WON ITS INDEPENDENCE FROM ENGLAND THERE WAS
NO SETTLED INTERNATIONAL CUSTOM OR UNDERSTANDING AMONG NATIONS THAT
EACH NATION OWNED A THREE-MILE WATER BELT ALONG ITS BORDERS.  SOME
COUNTRIES, NOTABLY ENGLAND, SPAIN, AND PORTUGAL, HAD, FROM TIME TO
TIME, MADE SWEEPING CLAIMS TO A RIGHT OF DOMINION OVER WIDE EXPANSES OF
OCEAN.  AND CONTROVERSIES HAD ARISEN AMONG NATIONS ABOUT RIGHTS TO FISH
IN PRESCRIBED AREAS.  FN11  BUT WHEN THIS NATION WAS FORMED, THE IDEA
OF A THREE-MILE BELT OVER WHICH A LITTORAL NATION COULD EXERCISE RIGHTS
OF OWNERSHIP WAS BUT A NEBULOUS SUGGESTION.  FN12  NEITHER THE ENGLISH
CHARTERS GRANTED TO THIS NATION'S SETTLERS, FN13  NOR THE TREATY OF
PEACE WITH ENGLAND,  FN14  NOR ANY OTHER DOCUMENT TO WHICH WE HAVE BEEN
REFERRED, SHOWED A PURPOSE TO SET APART A THREE-MILE OCEAN BELT FOR
COLONIAL OR STATE OWNERSHIP N15.  THOSE WHO SETTLED THIS COUNTRY WERE
INTERESTED IN LANDS UPON WHICH TO LIVE, AND WATERS UPON WHICH TO FISH
AND SAIL.  THERE IS NO SUBSTANTIAL SUPPORT IN HISTORY FOR THE IDEA THAT
THEY WANTED OR CLAIMED A RIGHT TO BLOCK OFF THE OCEAN'S BOTTOM FOR
PRIVATE OWNERSHIP AND USE IN THE EXTRACTION OF ITS WEALTH. 

IT DID HAPPEN THAT SHORTLY AFTER WE BECAME A NATION OUR STATESMEN
BECAME INTERESTED IN ESTABLISHING NATIONAL DOMINION OVER A DEFINITE
MARGINAL ZONE TO PROTECT OUR NEUTRALITY.  FN16 LARGELY AS A RESULT OF
THEIR EFFORTS, THE IDEA OF A DEFINITE THREE-MILE BELT IN WHICH AN
ADJACENT NATION CAN, IF IT CHOOSES, EXERCISE BROAD, IF NOT COMPLETE
DOMINION, HAS APPARENTLY AT LAST BEEN GENERALLY ACCEPTED THROUGHOUT THE
WORLD,  FN17  ALTHOUGH AS LATE AS 1876 THERE WAS STILL CONSIDERABLE
DOUBT IN ENGLAND ABOUT ITS SCOPE AND EVEN ITS EXISTENCE.  SEE THE QUEEN
V. KEYN, 2 EX. D. 63.  THAT THE POLITICAL AGENCIES OF THIS NATION BOTH
CLAIM AND EXERCISE BROAD DOMINION AND CONTROL OVER OUR THREE-MILE
MARGINAL BELT IS NOW A SETTLED FACT.  CUNARD STEAMSHIP CO. V. MELLON,
262 U.S. 100, 122-124.  FN18  AND THIS ASSERTION OF NATIONAL DOMINION
OVER THE THREEMILE BELT IS BINDING UPON THIS COURT.  SEE JONES V.
UNITED STATES, 137 U.S. 202, 212-214; IN RE COOPER, 143 U.S. 472, 502
503. 

NOT ONLY HAS ACQUISITION, AS IT WERE, OF THE THREE-MILE BELT BEEN
ACCOMPLISHED BY THE NATIONAL GOVERNMENT, BUT PROTECTION AND CONTROL OF
IT HAS BEEN AND IS A FUNCTION OF NATIONAL EXTERNAL SOVEREIGNTY.  SEE
JONES V. UNITED STATES, 137 U.S. 202; IN RE COOPER, 143 U.S. 472, 502. 
THE BELIEF THAT LOCAL INTERESTS ARE SO PREDOMINANT AS CONSTITUTIONALLY
TO REQUIRE STATE DOMINION OVER LANDS UNDER ITS LAND-LOCKED NAVIGABLE
WATERS FINDS SOME ARGUMENT FOR ITS SUPPORT.  BUT SUCH CAN HARDLY BE
SAID IN FAVOR OF STATE CONTROL OVER ANY PART OF THE OCEAN OR THE
OCEAN'S BOTTOM.  THIS COUNTRY, THROUGHOUT ITS EXISTENCE HAS STOOD FOR
FREEDOM OF THE SEAS, A PRINCIPLE WHOSE BREACH HAS PRECIPITATED WARS
AMONG NATIONS.  THE COUNTRY'S ADOPTION OF THE THREE-MILE BELT IS BY NO
MEANS INCOMPATIBLE WITH ITS TRADITIONAL INSISTENCE UPON FREEDOM OF THE
SEA, AT LEAST SO LONG AS THE NATIONAL GOVERNMENT'S POWER TO EXERCISE
CONTROL CONSISTENTLY WITH WHATEVER INTERNATIONAL UNDERTAKINGS OR
COMMITMENTS IT MAY SEE FIT TO ASSUME IN THE NATIONAL INTEREST IS
UNENCUMBERED.  SEE HINES V. DAVIDOWITZ, 312 U.S. 52, 62-64; MCCULLOCH
V. MARYLAND, SUPRA.  THE THREE-MILE RULE IS BUT A RECOGNITION OF THE
NECESSITY THAT A GOVERNMENT NEXT TO THE SEA MUST BE ABLE TO PROTECT
ITSELF FROM DANGERS INCIDENT TO ITS LOCATION.  IT MUST HAVE POWERS OF
DOMINION AND REGULATION IN THE INTEREST OF ITS REVENUES, ITS HEALTH,
AND THE SECURITY OF ITS PEOPLE FROM WARS WAGED ON OR TOO NEAR ITS
COASTS.  AND INSOFAR AS THE NATION ASSERTS ITS RIGHTS UNDER
INTERNATIONAL LAW, WHATEVER OF VALUE MAY BE DISCOVERED IN THE SEAS NEXT
TO ITS SHORES AND WITHIN ITS PROTECTIVE BELT, WILL MOST NATURALLY BE
APPROPRIATED FOR ITS USE.  BUT WHATEVER ANY NATION DOES IN THE OPEN
SEA, WHICH DETRACTS FROM ITS COMMON USEFULNESS TO NATIONS, OR WHICH
ANOTHER NATION MAY CHARGE DETRACTS FROM IT,  FN19  IS A QUESTION FOR
CONSIDERATION AMONG NATIONS AS SUCH, AND NOT THEIR SEPARATE
GOVERNMENTAL UNITS.  WHAT THIS GOVERNMENT DOES, OR EVEN WHAT THE STATES
DO, ANYWHERE IN THE OCEAN, IS A SUBJECT UPON WHICH THE NATION MAY ENTER
INTO AND ASSUME TREATY OR SIMILAR INTERNATIONAL OBLIGATIONS.  SEE
UNITED STATES V. BELMONT, 301 U.S. 324, 331-332.  THE VERY OIL ABOUT
WHICH THE STATE AND NATION HERE CONTEND MIGHT WELL BECOME THE SUBJECT
OF INTERNATIONAL DISPUTE AND SETTLEMENT. 

THE OCEAN, EVEN ITS THREE-MILE BELT, IS THUS OF VITAL CONSEQUENCE TO
THE NATION IN ITS DESIRE TO ENGAGE IN COMMERCE AND TO LIVE IN PEACE
WITH THE WORLD; IT ALSO BECOMES OF CRUCIAL IMPORTANCE SHOULD IT EVER
AGAIN BECOME IMPOSSIBLE TO PRESERVE THAT PEACE.  AND AS PEACE AND WORLD
COMMERCE ARE THE PARAMOUNT RESPONSIBILITIES OF THE NATION, RATHER THAN
AN INDIVIDUAL STATE, SO, IF WARS COME, THEY MUST BE FOUGHT BY THE
NATION.  SEE CHY LUNG V. FREEMAN, 92 U.S. 275, 279.  THE STATE IS NOT
EQUIPPED IN OUR CONSTITUTIONAL SYSTEM WITH THE POWERS OR THE FACILITIES
FOR EXERCISING THE RESPONSIBILITIES WHICH WOULD BE CONCOMITANT WITH THE
DOMINION WHICH IT SEEKS.  CONCEDING THAT THE STATE HAS BEEN AUTHORIZED
TO EXERCISE LOCAL POLICE POWER FUNCTIONS IN THE PART OF THE MARGINAL
BELT WITHIN ITS DECLARED BOUNDARIES,  FN20  THESE DO NOT DETRACT FROM
THE FEDERAL GOVERNMENT'S PARAMOUNT RIGHTS IN AND POWER OVER THIS AREA. 
CONSEQUENTLY, WE ARE NOT PERSUADED TO TRANSPLANT THE POLLARD RULE OF
OWNERSHIP AS AN INCIDENT OF STATE SOVEREIGNTY IN RELATION TO INLAND
WATERS OUT INTO THE SOIL BENEATH THE OCEAN, SO MUCH MORE A MATTER OF
NATIONAL CONCERN.  IF THIS RATIONALE OF THE POLLARD CASE IS A VALID
BASIS FOR A CONCLUSION THAT PARAMOUNT RIGHTS RUN TO THE STATES IN
INLAND WATERS TO THE SHOREWARD OF THE LOW WATER MARK, THE SAME
RATIONALE LEADS TO THE CONCLUSION THAT NATIONAL INTERESTS,
RESPONSIBILITIES, AND THEREFORE NATIONAL RIGHTS ARE PARAMOUNT IN WATERS
LYING TO THE SEAWARD IN THE THREE-MILE BELT.  CF. UNITED STATES V.
CURTISS-WRIGHT CORP., 299 U.S. 304, 316; UNITED STATES V. CAUSBY, 328
U.S. 256. 

AS PREVIOUSLY STATED, THIS COURT HAS FOLLOWED AND REASSERTED THE
BASIC DOCTRINE OF THE POLLARD CASE MANY TIMES.  AND IN DOING SO IT HAS
USED LANGUAGE STRONG ENOUGH TO INDICATE THAT THE COURT THEN BELIEVED
THAT STATES NOT ONLY OWNED TIDELANDS AND SOIL UNDER NAVIGABLE INLAND
WATERS, BUT ALSO OWNED SOILS UNDER ALL NAVIGABLE WATERS WITHIN THEIR
TERRITORIAL JURISDICTION, WHETHER INLAND OR NOT.  ALL OF THESE
STATEMENTS WERE, HOWEVER, MERELY PARAPHRASES OR OFFSHOOTS OF THE
POLLARD INLAND-WATER RULE, AND WERE USED, NOT AS ENUNCIATION OF A NEW
OCEAN RULE, BUT IN EXPLANATION OF THE OLD INLAND-WATER PRINCIPLE. 
NOTWITHSTANDING THE FACT THAT NONE OF THESE CASES EITHER INVOLVED OR
DECIDED THE STATE-FEDERAL CONFLICT PRESENTED HERE, WE ARE URGED TO SAY
THAT THE LANGUAGE USED AND REPEATED IN THOSE CASES FORECLOSES THE
GOVERNMENT FROM THE RIGHT TO HAVE THIS COURT DECIDE THAT QUESTION NOW
THAT IT IS SQUARELY PRESENTED FOR THE FIRST TIME. 

THERE ARE THREE SUCH CASES WHOSE LANGUAGE PROBABLY LENDS MORE WEIGHT
TO CALIFORNIA'S ARGUMENT THAN ANY OTHERS.  THE FIRST IS MANCHESTER V.
MASSACHUSETTS, 139 U.S. 240.  THAT CASE INVOLVED ONLY THE POWER OF
MASSACHUSETTS TO REGULATE FISHING.  MOREOVER, THE ILLEGAL FISHING
CHARGED WAS IN BUZZARDS BAY, FOUND TO BE WITHIN MASSACHUSETTS
TERRITORY, AND NO QUESTION WHATEVER WAS RAISED OR DECIDED AS TO TITLE
OR PARAMOUNT RIGHTS IN THE OPEN SEA.  AND THE COURT SPECIFICALLY LAID
TO ONE SIDE ANY QUESTION AS TO THE RIGHTS OF THE FEDERAL GOVERNMENT TO
REGULATE FISHING THERE.  THE SECOND CASE, LOUISIANA V. MISSISSIPPI, 202
U.S. 1, 52, USES LANGUAGE ABOUT "THE SWAY OF THE RIPARIAN STATES" OVER
"MARITIME BELTS."  THAT WAS A CASE INVOLVING THE BOUNDARY BETWEEN
LOUISIANA AND MISSISSIPPI.  IT DID NOT INVOLVE ANY DISPUTE BETWEEN THE
FEDERAL AND STATE GOVERNMENTS.  AND THE COURT THERE SPECIFICALLY LAID
ASIDE QUESTIONS CONCERNING "THE BREADTH OF THE MARITIME BELT OR THE
EXTENT OF THE SWAY OF THE RIPARIAN STATES  ...  "  ID. AT 52.  THE
THIRD CASE IS THE ABBY DODGE, 223 U.S. 166.  THAT WAS AN ACTION AGAINST
A SHIP LANDING SPONGES AT A FLORIDA PORT IN VIOLATION OF AN ACT OF
CONGRESS, 34 STAT. 313, WHICH MADE IT UNLAWFUL TO "LAND" SPONGES TAKEN
UNDER CERTAIN CONDITIONS FROM THE WATERS OF THE GULF OF MEXICO.  THIS
COURT CONSTRUED THE STATUTE'S PROHIBITION AS APPLYING ONLY TO SPONGES
OUTSIDE THE STATE'S "TERRITORIAL LIMITS" IN THE GULF.  IT THUS NARROWED
THE SCOPE OF THE STATUTE BECAUSE OF A BELIEF THAT THE UNITED STATES WAS
WITHOUT POWER TO REGULATE THE FLORIDA TRAFFIC IN SPONGES OBTAINED FROM
WITHIN FLORIDA'S TERRITORIAL LIMITS, PRESUMABLY THE THREE-MILE BELT. 
BUT THE OPINION IN THAT CASE WAS CONCERNED WITH THE STATE'S POWER TO
REGULATE AND CONSERVE WITHIN ITS TERRITORIAL WATERS, NOT WITH ITS
EXERCISE OF THE RIGHT TO USE AND DEPLETE RESOURCES WHICH MIGHT BE OF
NATIONAL AND INTERNATIONAL IMPORTANCE.  AND THERE WAS NO ARGUMENT
THERE, NOR DID THIS COURT DECIDE, WHETHER THE FEDERAL GOVERNMENT OWNED
OR HAD PARAMOUNT RIGHTS IN THE SOIL UNDER THE GULF WATERS.  THAT THIS
QUESTION REMAINED UNDECIDED IS EVIDENCED BY SKIRIOTES V. FLORIDA, 313
U.S. 69, 75, WHERE WE HAD OCCASION TO SPEAK OF FLORIDA'S POWER OVER
SPONGE-FISHING IN ITS TERRITORIAL WATERS.  THROUGH MR. CHIEF JUSTICE
HUGHES WE SAID:  "IT IS ALSO CLEAR THAT FLORIDA HAS AN INTEREST IN THE
PROPER MAINTENANCE OF THE SPONGE FISHERY AND THAT THE (STATE) STATUTE
SO FAR AS APPLIED TO CONDUCT WITHIN THE TERRITORIAL WATERS OF FLORIDA,
IN THE ABSENCE OF CONFLICTING FEDERAL LEGISLATION, IS WITHIN THE POLICE
POWER OF THE STATE." 

NONE OF THE FOREGOING CASES, NOR OTHERS WHICH WE HAVE DECIDED, ARE
SUFFICIENT TO REQUIRE US TO EXTEND THE POLLARD INLAND-WATER RULE SO AS
TO DECLARE THAT CALIFORNIA OWNS OR HAS PARAMOUNT RIGHTS IN OR POWER
OVER THE THREE-MILE BELT UNDER THE OCEAN.  THE QUESTION OF WHO OWNED
THE BED OF THE SEA ONLY BECAME OF GREAT POTENTIAL IMPORTANCE AT THE
BEGINNING OF THIS CENTURY WHEN OIL WAS DISCOVERED THERE.  FN21  AS A
CONSEQUENCE OF THIS DISCOVERY, CALIFORNIA PASSED AN ACT IN 1921
AUTHORIZING THE GRANTING OF PERMITS TO CALIFORNIA RESIDENTS TO PROSPECT
FOR OIL AND GAS ON BLOCKS OF LAND OFF ITS COAST UNDER THE OCEAN.  CAL.
STATS. 1921, C. 303.  THIS STATE STATUTE, AND OTHERS WHICH FOLLOWED IT,
TOGETHER WITH THE LEASING PRACTICES UNDER THEM, HAVE PRECIPITATED THIS
EXTREMELY IMPORTANT CONTROVERSY, AND POINTEDLY RAISED THIS STATE
FEDERAL CONFLICT FOR THE FIRST TIME.  NOW THAT THE QUESTION IS HERE, WE
DECIDE FOR THE REASONS WE HAVE STATED THAT CALIFORNIA IS NOT THE OWNER
OF THE THREE-MILE MARGINAL BELT ALONG ITS COAST, AND THAT THE FEDERAL
GOVERNMENT RATHER THAN THE STATE HAS PARAMOUNT RIGHTS IN AND POWER OVER
THAT BELT, AN INCIDENT TO WHICH IS FULL DOMINION OVER THE RESOURCES OF
THE SOIL UNDER THAT WATER AREA, INCLUDING OIL. 

FOURTH.  NOR CAN WE AGREE WITH CALIFORNIA THAT THE FEDERAL
GOVERNMENT'S PARAMOUNT RIGHTS HAVE BEEN LOST BY REASON OF THE CONDUCT
OF ITS AGENTS.  THE STATE SETS UP SUCH A DEFENSE, ARGUING THAT BY THIS
CONDUCT THE GOVERNMENT IS BARRED FROM ENFORCING ITS RIGHTS BY REASON OF
PRINCIPLES SIMILAR TO LACHES, ESTOPPEL OR ADVERSE POSSESSION.  IT WOULD
SERVE NO USEFUL PURPOSE TO RECITE THE INCIDENTS IN DETAIL UPON WHICH
THE STATE RELIES FOR THESE DEFENSES.  SOME OF THEM ARE UNDOUBTEDLY
CONSISTENT WITH A BELIEF ON THE PART OF SOME GOVERNMENT AGENTS AT THE
TIME THAT CALIFORNIA OWNED ALL, OR AT LEAST A PART OF THE THREE-MILE
BELT.  THIS BELIEF WAS INDICATED IN THE SUBSTANTIAL NUMBER OF INSTANCES
IN WHICH THE GOVERNMENT ACQUIRED TITLE FROM THE STATES TO LANDS LOCATED
IN THE BELT; SOME DECISIONS OF THE DEPARTMENT OF INTERIOR HAVE DENIED
APPLICATIONS FOR FEDERAL OIL AND GAS LEASES IN THE CALIFORNIA COASTAL
BELT ON THE GROUND THAT CALIFORNIA OWNED THE LANDS.  OUTSIDE OF COURT
DECISIONS FOLLOWING THE POLLARD RULE, THE FOREGOING ARE THE TYPES OF
CONDUCT MOST NEARLY INDICATIVE OF WAIVER UPON WHICH THE STATE RELIES TO
SHOW THAT THE GOVERNMENT HAS LOST ITS PARAMOUNT RIGHTS IN THE BELT. 
ASSUMING THAT GOVERNMENT AGENTS COULD BY CONDUCT, SHORT OF A
CONGRESSIONAL SURRENDER OF TITLE OR INTEREST, PRECLUDE THE GOVERNMENT
FROM ASSERTING ITS LEGAL RIGHTS, WE CANNOT SAY IT HAS DONE SO HERE.  AS
A MATTER OF FACT, THE RECORD PLAINLY DEMONSTRATES THAT UNTIL THE
CALIFORNIA OIL ISSUE BEGAN TO BE PRESSED IN THE THIRTIES, NEITHER THE
STATES NOR THE GOVERNMENT HAD REASON TO FOCUS ATTENTION ON THE QUESTION
OF WHICH OF THEM OWNED OR HAD PARAMOUNT RIGHTS IN OR POWER OVER THE
THREE-MILE BELT.  AND EVEN ASSUMING THAT GOVERNMENT AGENCIES HAVE BEEN
NEGLIGENT IN FAILING TO RECOGNIZE OR ASSERT THE CLAIMS OF THE
GOVERNMENT AT AN EARLIER DATE, THE GREAT INTERESTS OF THE GOVERNMENT IN
THIS OCEAN AREA ARE NOT TO BE FORFEITED AS A RESULT.  THE GOVERNMENT,
WHICH HOLDS ITS INTERESTS HERE AS ELSEWHERE IN TRUST FOR ALL THE
PEOPLE, IS NOT TO BE DEPRIVED OF THOSE INTERESTS BY THE ORDINARY COURT
RULES DESIGNED PARTICULARLY FOR PRIVATE DISPUTES OVER INDIVIDUALLY
OWNED PIECES OF PROPERTY; AND OFFICERS WHO HAVE NO AUTHORITY AT ALL TO
DISPOSE OF GOVERNMENT PROPERTY CANNOT BY THEIR CONDUCT CAUSE THE
GOVERNMENT TO LOSE ITS VALUABLE RIGHTS BY THEIR ACQUIESCENCE, LACHES,
OR FAILURE TO ACT.  FN22 

WE HAVE NOT OVERLOOKED CALIFORNIA'S ARGUMENT, BUTTRESSED BY EARNEST
BRIEFS ON BEHALF OF OTHER STATES, THAT IMPROVEMENTS HAVE BEEN MADE
ALONG AND NEAR THE SHORES AT GREAT EXPENSE TO PUBLIC AND PRIVATE
AGENCIES.  AND WE NOTE THE GOVERNMENT'S SUGGESTION THAT THE AGGREGATE
VALUE OF ALL THESE IMPROVEMENTS ARE SMALL IN COMPARISON WITH THE
TREMENDOUS VALUE OF THE ENTIRE THREE-MILE BELT HERE IN CONTROVERSY. 
BUT HOWEVER THIS MAY BE, WE ARE FACED WITH THE ISSUE AS TO WHETHER
STATE OR NATION HAS PARAMOUNT RIGHTS IN AND POWER OVER THIS OCEAN BELT,
AND THAT GREAT NATIONAL QUESTION IS NOT DEPENDENT UPON WHAT EXPENSES
MAY HAVE BEEN INCURRED UPON MISTAKEN ASSUMPTIONS.  FURTHERMORE, WE
CANNOT KNOW HOW MANY OF THESE IMPROVEMENTS ARE WITHIN AND HOW MANY
WITHOUT THE BOUNDARY OF THE MARGINAL SEA WHICH CAN LATER BE ACCURATELY
DEFINED.  BUT BEYOND ALL THIS WE CANNOT AND DO NOT ASSUME THAT
CONGRESS, WHICH HAS CONSTITUTIONAL CONTROL OVER GOVERNMENT PROPERTY,
WILL EXECUTE ITS POWERS IN SUCH WAY AS TO BRING ABOUT INJUSTICES TO
STATES, THEIR SUBDIVISIONS, OR PERSONS ACTING PURSUANT TO THEIR
PERMISSION.  SEE UNITED STATES V. TEXAS, 162 U.S. 1, 89, 90; LEE WILSON
& CO. V. UNITED STATES, 245 U.S. 24, 32. 

WE HOLD THAT THE UNITED STATES IS ENTITLED TO THE RELIEF PRAYED FOR. 
THE PARTIES, OR EITHER OF THEM, MAY, BEFORE SEPTEMBER 15, 1947, SUBMIT
THE FORM OF DECREE TO CARRY THIS OPINION INTO EFFECT, FAILING WHICH THE
COURT WILL PREPARE AND ENTER AN APPROPRIATE DECREE AT THE NEXT TERM OF
COURT.  IT IS SO ORDERED. 

FN1  THE GOVERNMENT COMPLAINT CLAIMS AN AREA EXTENDING THREE NAUTICAL
MILES FROM SHORE; THE CALIFORNIA BOUNDARY PURPORTS TO EXTEND THREE
ENGLISH MILES.  ONE NAUTICAL MILE EQUALS 1.15 ENGLISH MILES, SO THAT
THERE IS A DIFFERENCE OF .45 OF AN ENGLISH MILE BETWEEN THE BOUNDARY OF
THE AREA CLAIMED BY THE GOVERNMENT, AND THE BOUNDARY OF CALIFORNIA. 
SEE CAL. CONST. ART. XXI, SEC. 1(1879). 

FN2  THE CLAIM OF RES JUDICATA RESTS ON THE FOLLOWING CONTENTION. 
THE UNITED STATES SUED IN EJECTMENT FOR CERTAIN LANDS SITUATED IN SAN
FRANCISCO BAY.  THE DEFENDANT HELD THE LANDS UNDER A GRANT FROM
CALIFORNIA.  THIS COURT DECIDED THAT THE STATE GRANT WAS VALID BECAUSE
THE LAND UNDER THE BAY HAD PASSED TO THE STATE UPON ITS ADMISSION TO
THE UNION.  UNITED STATES V. MISSION ROCK CO., 189 U.S. 391.  THERE MAY
BE OTHER REASONS WHY THE JUDGMENT IN THAT CASE DOES NOT BAR THIS
LITIGATION; BUT IT IS A SUFFICIENT REASON THAT THIS CASE INVOLVES LAND
UNDER THE OPEN SEA, AND NOT LAND UNDER THE INLAND WATERS OF SAN
FRANCISCO BAY. 

FN3  5 U.S.C. SECS. 291, 309; UNITED STATES V. SAN JACINTO TIN CO.,
125 U.S. 273, 279, 284; KERN RIVER CO. V. UNITED STATES, 257 U.S. 147,
154-55; SANITARY DISTRICT V. UNITED STATES, 266 U.S. 405, 425-426; SEE
ALSO IN RE DEBS, 158 U.S. 564, 584; UNITED STATES V. OREGON, 295 U.S.
1, 24; UNITED STATES V. WYOMING, 323 U.S. 669, 329 U.S. 670. 

FN4  S.J. RES. 208, 75TH CONG., 1ST SESS. (1937); S.J. RES. 83 AND
92, 76TH CONG., 1ST SESS. (1939).  S.J. RES. 208 PASSED THE SENATE, 81
CONG. REC. 9326(1937), WAS FAVORABLY REPORTED BY THE HOUSE JUDICIARY
COMMITTEE, H.R. REP. 2378, 75TH CONG., 3D SESS (1938), BUT WAS NEVER
ACTED ON IN THE HOUSE.  HEARINGS WERE HELD ON S.J. RES. 83 AND 92
BEFORE THE SENATE COMMITTEE ON PUBLIC LANDS AND SURVEYS, BUT NO FURTHER
ACTION WAS TAKEN.  HEARINGS BEFORE THE SENATE COMMITTEE ON PUBLIC LANDS
AND SURVEYS ON S.J. RES. 83 AND 92, 76TH CONG., 1ST SESS. (1939).  IN
BOTH HEARINGS OBJECTIONS TO THE RESOLUTIONS WERE REPEATEDLY MADE ON THE
GROUND THAT PASSAGE OF THE RESOLUTIONS WAS UNNECESSARY SINCE THE
ATTORNEY GENERAL ALREADY HAD STATUTORY AUTHORITY TO INSTITUTE THE
PROCEEDINGS.  SEE HEARING BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY
ON S.J. RES. 208, 75TH CONG., 3D SESS., 42-45, 59-61(1938); HEARINGS ON
S.J. RES. 83 AND 92, SUPRA, 27-30. 

FN5  H.J. RES. 225, 79TH CONG., 2D SESS. (1946); 92 CONG. REC. 9642,
10316(1946). 

FN6  92 CONG. REC. 10660(1946). 

FN7  92 CONG. REC. 10745(1946). 

FN8  SEE E.G., MANCHESTER V. MASSACHUSETTS, 139 U.S. 240; LOUISIANA
V. MISSISSIPPI, 202 U.S. 1; THE ABBY DODGE, 223 U.S. 166.  SEE ALSO
UNITED STATES V. MISSION ROCK CO., 189 U.S. 391; BORAX, LTD. V. LOS
ANGELES, 296 U.S. 10. 

ALTHOUGH THE POLLARD CASE HAS THUS BEEN GENERALLY APPROVED MANY
TIMES, THE CASE OF SHIVELY V. BOWLBY, 152 U.S. 1, 47-48, 58, HELD,
CONTRARY TO IMPLICATIONS OF THE POLLARD OPINION, THAT THE UNITED STATES
COULD LAWFULLY DISPOSE OF TIDELANDS WHILE HOLDING A FUTURE STATE'S LAND
"IN TRUST" AS A TERRITORY. 

FN9  SEE UNITED STATES V. COMMODORE PARK, 324 U.S. 386, 390, 391;
SCRANTON V. WHEELER, 179 U.S. 141, 159, 160, 163; STOCKTON V. BALTIMORE
& N.Y.R. CO., 32 F. 9, 20; SEE ALSO UNITED STATES V. CHANDLER-DUNBAR
CO., 229 U.S. 53. 

FN10  A REPRESENTATIVE COLLECTION OF OFFICIAL DOCUMENTS AND
SCHOLARSHIP ON THE SUBJECT IS CROCKER, THE EXTENT OF THE MARGINAL SEA
(1919).  SEE ALSO I AZUNI, MARITIME LAW OF EUROPE (PUBLISHED 1806) C.
II; FULTON, SOVEREIGNTY OF THE SEA (1911); MASTERSON, JURISDICTION IN
MARGINAL SEAS (1929); JESSUP, THE LAW OF TERRITORIAL WATERS AND
MARITIME JURISDICTION (1927); FRASER, THE EXTENT AND DELIMITATION OF
TERRITORIAL WATERS, 11 CORN.  L.Q. 455(1926); IRELAND, MARGINAL SEAS
AROUND THE STATES, 2 LA. L. REV. 252, 436(1940); COMMENT, CONFLICTING
STATE AND FEDERAL CLAIMS OF TITLE IN SUBMERGED LANDS OF THE CONTINENTAL
SHELF, 56 YALE L.J. 356(1947). 

FN11  SEE, E.G., FULTON, OP. CIT. SUPRA, 3-19, 144-145; JESSUP, OP.
CIT. SUPRA, 4. 

FN12  FULTON, OP. CIT. SUPRA, 21, SAYS IN FACT THAT "MAINLY THROUGH
THE ACTION AND PRACTICE OF THE UNITED STATES OF AMERICA AND GREAT
BRITAIN SINCE THE END OF THE EIGHTEENTH CENTURY, THE DISTANCE OF THREE
MILES FROM SHORE WAS MORE OR LESS FORMALLY ADOPTED BY MOST MARITIME
STATES AS ...  MORE DEFINITELY FIXING THE LIMITS OF THEIR JURISDICTION
AND RIGHTS FOR VARIOUS PURPOSES, AND, IN PARTICULAR, FOR EXCLUSIVE
FISHERY." 

FN13  COLLECTED IN THORPE, FEDERAL AND STATE CONSTITUTIONS (1909). 

FN14  TREATY OF 1783, 8 STAT. 80. 

FN15  THE CONTINENTAL CONGRESS DID FOR EXAMPLE AUTHORIZE CAPTURE OF
NEUTRAL AND EVEN AMERICAN SHIPS CARRYING BRITISH GOODS, "IF FOUND
WITHIN THREE LEAGUES (ABOUT NINE MILES) OF THE COASTS."  JOURN.  OF
CONG. 185, 186, 187(1781).  CF. DECLARATION OF PANAMA OF 1939, 1 DEPT.
OF STATE BULL.  321(1939), CLAIMING THE RIGHT OF THE AMERICAN REPUBLICS
TO BE FREE FROM A HOSTILE ACT IN A ZONE 300 MILES FROM THE AMERICAN
COASTS. 

FN16  SECRETARY OF STATE JEFFERSON IN A NOTE TO THE BRITISH MINISTER
IN 1793 POINTED TO THE NEBULOUS CHARACTER OF A NATION'S ASSERTIONS OF
TERRITORIAL RIGHTS IN THE MARGINAL BELT, AND PUT FORWARD THE FIRST
OFFICIAL AMERICAN CLAIM FOR A THREE-MILE ZONE WHICH HAS SINCE WON
GENERAL INTERNATIONAL ACCEPTANCE.  REPRINTED IN H. EX. DOC. NO. 324,
42D CONG., 2D SESS. (1872) 553-554.  SEE ALSO SECRETARY JEFFERSON'S
NOTE TO THE FRENCH MINISTER, GENET, REPRINTED AMERICAN STATE PAPERS, I
FOREIGN RELATIONS (1833), 183, 184; ACT OF JUNE 5, 1794, 1 STAT. 381; 1
KENT, COMMENTARIES, 14TH ED., 33-40. 

FN17  SEE JESSUP, OP. CIT. SUPRA, 66; RESEARCH IN INTERNATIONAL LAW,
23 A.J.I.L. 249, 250(SPEC.  SUPP.  1929). 

FN18  SEE ALSO CHURCH V. HUBBART, 2 CRANCH 187, 234.  CONGRESSIONAL
ASSERTION OF A TERRITORIAL ZONE IN THE SEA APPEARS IN STATUTES
REGULATING SEALS, FISHING, POLLUTION OF WATERS, ETC.  36 STAT. 326,
328; 43 STAT. 604, 605; 37 STAT. 499, 501.  UNDER THE NATIONAL
PROHIBITION ACT, TERRITORY INCLUDING "A MARGINAL BELT OF THE SEA
EXTENDING FROM LOW-WATER MARK OUTWARD A MARINE LEAGUE, OR 3
GEOGRAPHICAL MILES" CONSTITUTING THE "TERRITORIAL WATERS OF THE UNITED
STATES" WAS REGULATED.  SEE U.S. TREAS. REG. 2, SEC. 2201(1927),
REPRINTED IN RESEARCH IN INTERNATIONAL LAW, SUPRA, 250; 41 STAT. 305. 
ANTI-SMUGGLING TREATIES IN WHICH FOREIGN NATIONS AGREED TO PERMIT THE
UNITED STATES TO PURSUE SMUGGLERS BEYOND THE THREE-MILE LIMIT CONTAINED
EXPRESS STIPULATIONS THAT GENERALLY THE THREE-MILE LIMIT CONSTITUTES
"THE PROPER LIMITS OF TERRITORIAL WATERS."  SEE E.G., 43 STAT. 1761(PT.
2). 

THERE ARE INNUMERABLE EXECUTIVE DECLARATIONS TO THE WORLD OF OUR
NATIONAL CLAIMS TO THE THREE-MILE BELT, AND MORE RECENTLY TO THE WHOLE
CONTINENTAL SHELF.  FOR REFERENCES TO DIPLOMATIC CORRESPONDENCE MAKING
THESE ASSERTIONS, SEE 1 MOORE, INTERNATIONAL LAW DIGEST (1906) 705,
706, 707; 1 WHARTON, DIGEST OF INTERNATIONAL LAW (1886) 100.  SEE ALSO
HUGHES, RECENT QUESTIONS AND NEGOTIATIONS, 18 A.J.I.L. 229(1924). 

THE LATEST AND BROADEST CLAIM IS PRESIDENT TRUMAN'S RECENT
PROCLAMATION THAT THE UNITED STATES "REGARDS THE NATURAL RESOURCES OF
THE SUBSOIL AND SEA BED OF THE CONTINENTAL SHELF BENEATH THE HIGH SEAS
BUT CONTIGUOUS TO THE COASTS OF THE UNITED STATES AS APPERTAINING TO
THE UNITED STATES, SUBJECT TO ITS JURISDICTION AND CONTROL.  ...  "
EXEC. PROC. 2667, SEPT. 28, 1945, 10 F.R. 12303. 

FN19  SEE LORD V. STEAMSHIP CO., 102 U.S. 541, 544. 

FN20  SEE UTAH POWER & LIGHT CO. V. UNITED STATES, 243 U.S. 389, 404;
CF. THE ABBY DODGE, 223 U.S. 166, WITH SKIRIOTES V. FLORIDA, 313 U.S.
69, 74-75. 

FN21  BULL.  NO. 321, DEPT. OF INTERIOR, GEOLOGICAL SURVEY. 

FN22  UNITED STATES V. SAN FRANCISCO, 310 U.S. 16, 31-32; UTAH V.
UNITED STATES, 284 U.S. 534, 545, 546; LEE WILSON & CO. V. UNITED
STATES, 245 U.S. 24, 32; UTAH POWER & LIGHT CO. V. UNITED STATES, 243
U.S. 389, 409.  SEE ALSO SEC'Y OF STATE FOR INDIA V. CHELIKANI RAMA
RAO, L.R. 43 INDIAN APP. 192, 204(1916). 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, DISSENTING. 

IN MY VIEW THE CONTROVERSY BROUGHT BEFORE THIS COURT BY THE COMPLAINT
OF THE UNITED STATES AGAINST CALIFORNIA SEEKS A JUDGMENT BETWEEN STATE
AND NATION AS TO THE OWNERSHIP OF THE LAND UNDERLYING THE PACIFIC
OCEAN, SEAWARD OF THE ORDINARY LOW WATER MARK, ON THE COAST OF
CALIFORNIA AND WITHIN THE THREE-MILE LIMIT.  THE OWNERSHIP OF THAT LAND
CARRIES WITH IT, IT SEEMS TO ME, THE OWNERSHIP OF ANY MINERALS OR OTHER
VALUABLES IN THE SOIL, AS WELL AS THE RIGHT TO EXTRACT THEM. 

THE DETERMINATION AS TO THE OWNERSHIP OF THE LAND IN CONTROVERSY
TURNS FOR ME ON THE FACT AS TO OWNERSHIP IN THE ORIGINAL THIRTEEN
STATES OF SIMILAR LANDS PRIOR TO THE FORMATION OF THE UNION.  IF THE
ORIGINAL STATES OWNED THE BED OF THE SEA, ADJACENT TO THEIR COASTS, TO
THE THREE-MILE LIMIT, THEN I THINK CALIFORNIA HAS THE SAME TITLE OR
OWNERSHIP TO THE LANDS ADJACENT TO HER COAST.  THE ORIGINAL STATES WERE
SOVEREIGNTIES IN THEIR OWN RIGHT, POSSESSED OF SO MUCH OF THE LAND
UNDERNEATH THE ADJACENT SEAS AS WAS GENERALLY RECOGNIZED TO BE UNDER
THEIR JURISDICTION.  THE SCOPE OF THEIR JURISDICTION AND THE BOUNDARIES
OF THEIR LANDS WERE COTERMINOUS.  ANY PART OF THAT TERRITORY WHICH HAD
NOT PASSED FROM THEIR OWNERSHIP BY EXISTING VALID GRANTS WERE AND
REMAINED PUBLIC LANDS OF THE RESPECTIVE STATES.  CALIFORNIA, AS IS
CUSTOMARY, WAS ADMITTED INTO THE UNION "ON AN EQUAL FOOTING WITH THE
ORIGINAL STATES IN ALL RESPECTS WHATEVER."  9 STAT. 452.  BY SEC. 3 OF
THE ACT OF ADMISSION, THE PUBLIC LANDS WITHIN ITS BORDERS WERE RESERVED
FOR DISPOSITION BY THE UNITED STATES.  "PUBLIC LANDS" WAS THERE USED IN
ITS USUAL SENSE OF LANDS SUBJECT TO SALE UNDER GENERAL LAWS.  AS WAS
THE RULE, TITLE TO LANDS UNDER NAVIGABLE WATERS VESTED IN CALIFORNIA AS
IT HAD DONE IN ALL OTHER STATES.  POLLARD V. HAGAN, 3 HOW.  212; BARNEY
V. KEOKUK, 94 U.S. 324, 338; SHIVELY V. BOWLBY, 152 U.S. 1, 49; MANN V.
TACOMA LAND CO., 153 U.S. 273, 284; BORAX CONSOLIDATED, LTD. V. LOS
ANGELES, 296 U.S. 10, 17. 

THE AUTHORITIES CITED IN THE COURT'S OPINION LEAD ME TO THE
CONCLUSION THAT THE ORIGINAL STATES OWNED THE LANDS UNDER THE SEAS TO
THE THREE-MILE LIMIT.  THERE WERE, OF COURSE, AS IS SHOWN BY THE
CITATIONS, VARIATIONS IN THE CLAIMS OF SOVEREIGNTY, JURISDICTION OR
OWNERSHIP AMONG THE NATIONS OF THE WORLD.  AS EARLY AS 1793, JEFFERSON
AS SECRETARY OF STATE, IN A COMMUNICATION TO THE BRITISH MINISTER, SAID
THAT THE TERRITORIAL PROTECTION OF THE UNITED STATES WOULD BE EXTENDED
"THREE GEOGRAPHICAL MILES" AND ADDED:    "THIS DISTANCE CAN ADMIT OF NO
OPPOSITION, AS IT IS RECOGNIZED BY TREATIES BETWEEN SOME OF THE POWERS
WITH WHOM WE ARE CONNECTED IN COMMERCE AND NAVIGATION, AND IS AS
LITTLE, OR LESS, THAN IS CLAIMED BY ANY OF THEM ON THEIR OWN COASTS." 
H. EX. DOC. NO. 324, 42D CONG., 2D SESS., PP. 553-54. 

IF THE ORIGINAL STATES DID CLAIM, AS I THINK THEY DID, SOVEREIGNTY
AND OWNERSHIP TO THE THREE-MILE LIMIT, CALIFORNIA HAS THE SAME RIGHTS
IN THE LANDS BORDERING ITS LITTORAL.    THIS OWNERSHIP IN CALIFORNIA
WOULD NOT INTERFERE IN ANY WAY WITH THE NEEDS OR RIGHTS OF THE UNITED
STATES IN WAR OR PEACE.  THE POWER OF THE UNITED STATES IS PLENARY OVER
THESE UNDERSEA LANDS PRECISELY AS IT IS OVER EVERY RIVER, FARM, MINE,
AND FACTORY OF THE NATION.  WHILE NO SQUARE RULING OF THIS COURT HAS
DETERMINED THE OWNERSHIP OF THOSE MARGINAL LANDS, TO ME THE TONE OF THE
DECISIONS DEALING WITH SIMILAR PROBLEMS INDICATES THAT, WITHOUT
DISCUSSION, STATE OWNERSHIP HAS BEEN ASSUMED.  POLLARD V. HAGAN, SUPRA;
LOUISIANA V. MISSISSIPPI, 202 U.S. 1, 52; THE ABBY DODGE, 223 U.S. 166;
NEW JERSEY V. DELAWARE, 291 U.S. 361; 295 U.S. 694. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

BY THIS ORIGINAL BILL THE UNITED STATES PRAYED FOR A DECREE ENJOINING
ALL PERSONS, INCLUDING THOSE ASSERTING A CLAIM DERIVED FROM THE STATE
OF CALIFORNIA, FROM TRESPASSING UPON THE DISPUTED AREA.  AN INJUNCTION
AGAINST TRESPASSERS NORMALLY PRESUPPOSES PROPERTY RIGHTS.  THE COURT,
HOWEVER, GRANTS THE PRAYER BUT DOES NOT DO SO BY FINDING THAT THE
UNITED STATES HAS PROPRIETARY INTERESTS IN THE AREA.  TO BE SURE, IT
DENIES SUCH PROPRIETARY RIGHTS IN CALIFORNIA.  BUT EVEN IF WE ASSUME AN
ABSENCE OF OWNERSHIP OR POSSESSORY INTEREST ON THE PART OF CALIFORNIA,
THAT DOES NOT ESTABLISH A PROPRIETARY INTEREST IN THE UNITED STATES. 
IT IS SIGNIFICANT THAT THE COURT DOES NOT ADOPT THE GOVERNMENT'S
ELABORATE ARGUMENT, BASED ON DUBIOUS AND TENUOUS WRITINGS OF
PUBLICISTS, SEE SCHWARZENBERGER, INDUCTIVE APPROACH TO INTERNATIONAL
LAW, 60 HARV. L. REV. 539, 559, THAT THIS PART OF THE OPEN SEA BELONGS,
IN A PROPRIETARY SENSE, TO THE UNITED STATES.  SEE AMERICAN BANANA CO.
V. UNITED FRUIT CO., 213 U.S. 347, 351.  INSTEAD, THE COURT FINDS
TRESPASS AGAINST THE UNITED STATES ON THE BASIS OF WHAT IT CALLS THE
"NATIONAL DOMINION" BY THE UNITED STATES OVER THIS AREA. 

TO SPEAK OF "DOMINION" CARRIES PRECISELY THOSE OVERTONES IN THE LAW
WHICH RELATE TO PROPERTY AND NOT TO POLITICAL AUTHORITY.  DOMINION,
FROM THE ROMAN CONCEPT DOMINIUM, WAS CONCERNED WITH PROPERTY AND
OWNERSHIP, AS AGAINST IMPERIUM, WHICH RELATED TO POLITICAL
SOVEREIGNTY.  ONE MAY CHOOSE TO SAY, FOR EXAMPLE, THAT THE UNITED
STATES HAS "NATIONAL DOMINION" OVER NAVIGABLE STREAMS.  BUT THE POWER
TO REGULATE COMMERCE OVER THESE STREAMS, AND ITS CONTINUED EXERCISE, DO
NOT CHANGE THE IMPERIUM OF THE UNITED STATES INTO DOMINIUM OVER THE
LAND BELOW THE WATERS.  OF COURSE THE UNITED STATES HAS "PARAMOUNT
RIGHTS" IN THE SEA BELT OF CALIFORNIA - THE RIGHTS THAT ARE IMPLIED BY
THE POWER TO REGULATE INTERSTATE AND FOREIGN COMMERCE, THE POWER OF
CONDEMNATION, THE TREATY-MAKING POWER, THE WAR POWER.  WE HAVE NOT NOW
BEFORE US THE VALIDITY OF THE EXERCISE OF ANY OF THESE PARAMOUNT
RIGHTS.  RIGHTS OF OWNERSHIP ARE HERE ASSERTED - AND RIGHTS OF
OWNERSHIP ARE SOMETHING ELSE.  OWNERSHIP IMPLIES ACQUISITION IN THE
VARIOUS WAYS IN WHICH LAND IS ACQUIRED - BY CONQUEST, BY DISCOVERY AND
CLAIM, BY CESSION, BY PRESCRIPTION, BY PURCHASE, BY CONDEMNATION.  WHEN
AND HOW DID THE UNITED STATES ACQUIRE THIS LAND? 

THE FACT THAT THESE OIL DEPOSITS IN THE OPEN SEA MAY BE VITAL TO THE
NATIONAL SECURITY, AND IMPORTANT ELEMENTS IN THE CONDUCT OF OUR FOREIGN
AFFAIRS, IS NO MORE RELEVANT THAN IS THE EXISTENCE OF URANIUM DEPOSITS,
WHEREVER THEY MAY BE, IN DETERMINING QUESTIONS OF TRESPASS TO THE LAND
OF WHICH THEY FORM A PART.  THIS IS NOT A SITUATION WHERE AN EXERCISE
OF NATIONAL POWER IS ACTIVELY AND PRESENTLY INTERFERED WITH.  IN SUCH A
CASE, THE INHERENT POWER OF A FEDERAL COURT OF EQUITY MAY BE INVOKED TO
PREVENT OR REMOVE THE OBSTRUCTION.  IN RE DEBS, 158 U.S. 564; SANITARY
DISTRICT V. UNITED STATES, 266 U.S. 405.  NEITHER THE BILL, NOR THE
OPINION SUSTAINING IT, SUGGESTS THAT THERE IS INTERFERENCE BY
CALIFORNIA OR THE ALLEGED TRESPASSERS WITH ANY AUTHORITY WHICH THE
GOVERNMENT PRESENTLY SEEKS TO EXERCISE.  IT IS BESIDE THE POINT TO SAY
THAT "IF WARS COME, THEY MUST BE FOUGHT BY THE NATION."  NOR IS IT
RELEVANT THAT "THE VERY OIL ABOUT WHICH THE STATE AND NATION HERE
CONTEND MIGHT WELL BECOME THE SUBJECT OF INTERNATIONAL DISPUTE AND
SETTLEMENT."  IT IS COMMON KNOWLEDGE THAT URANIUM HAS BECOME "THE
SUBJECT OF INTERNATIONAL DISPUTE" WITH A VIEW TO SETTLEMENT.  COMPARE
MISSOURI V. HOLLAND, 252 U.S. 416. 

TO DECLARE THAT THE GOVERNMENT HAS "NATIONAL DOMINION" IS MERELY A
WAY OF SAYING THAT VIS-A-VIS ALL OTHER NATIONS THE GOVERNMENT IS THE
SOVEREIGN.  IF THAT IS WHAT THE COURT'S DECREE MEANS, IT NEEDS NO
PRONOUNCEMENT BY THIS COURT TO CONFER OR DECLARE SUCH SOVEREIGNTY.  IF
IT MEANS MORE THAN THAT, IT IMPLIES THAT THE GOVERNMENT HAS SOME
PROPRIETARY INTEREST.  THAT HAS NOT BEEN REMOTELY ESTABLISHED EXCEPT BY
SLIDING FROM ABSENCE OF OWNERSHIP BY CALIFORNIA TO OWNERSHIP BY THE
UNITED STATES. 

LET US ASSUME, FOR THE PRESENT, THAT OWNERSHIP BY CALIFORNIA CANNOT
BE PROVEN.  ON A FAIR ANALYSIS OF ALL THE EVIDENCE BEARING ON
OWNERSHIP, THEN, THIS AREA IS, I BELIEVE, TO BE DEEMED UNCLAIMED LAND,
AND THE DETERMINATION TO CLAIM IT ON THE PART OF THE UNITED STATES IS A
POLITICAL DECISION NOT FOR THIS COURT.  THE CONSTITUTION PLACES VAST
AUTHORITY FOR THE CONDUCT OF FOREIGN RELATIONS IN THE INDEPENDENT HANDS
OF THE PRESIDENT.  SEE UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S.
304.  IT IS NOTEWORTHY THAT THE COURT DOES NOT TREAT THE PRESIDENT'S
PROCLAMATION IN REGARD TO THE DISPUTED AREA AS AN ASSERTION OF
OWNERSHIP.  SEE EXEC. PROC. 2667(SEPT.  28, 1945) 10 F.R. 12303.  IF
CALIFORNIA IS FOUND TO HAVE NO TITLE, AND THIS AREA IS REGARDED AS
UNCLAIMED LAND, I HAVE NO DOUBT THAT THE PRESIDENT AND THE CONGRESS
BETWEEN THEM COULD MAKE IT PART OF THE NATIONAL DOMAIN AND THEREBY
BRING IT UNDER ARTICLE IV, SECTION 3, OF THE CONSTITUTION.  THE
DISPOSITION OF THE AREA, THE RIGHTS TO BE CREATED IN IT, THE RIGHTS
HERETOFORE CLAIMED IN IT THROUGH USAGE THAT MIGHT BE RESPECTED THOUGH
IT FALL SHORT OF PRESCRIPTION, ALL RAISE APPROPRIATE QUESTIONS OF
POLICY, QUESTIONS OF ACCOMMODATION, FOR THE DETERMINATION OF WHICH
CONGRESS AND NOT THIS COURT IS THE APPROPRIATE AGENCY. 

TODAY THIS COURT HAS DECIDED THAT A NEW APPLICATION EVEN IN THE OLD
FIELD OF TORTS SHOULD NOT BE MADE BY ADJUDICATION, WHERE CONGRESS HAS
REFRAINED FROM ACTING.  UNITED STATES V. STANDARD OIL CO., 332 U.S.
301.  CONSIDERATIONS OF JUDICIAL SELF-RESTRAINT WOULD SEEM TO ME FAR
MORE COMPELLING WHERE THERE ARE OBVIOUSLY AT STAKE CLAIMS THAT INVOLVE
SO MANY FAR-REACHING, COMPLICATED, HISTORIC INTERESTS, THE PROPER
ADJUSTMENTS OF WHICH ARE NOT READILY RESOLVED BY THE MATERIALS AND
METHODS TO WHICH THIS COURT IS CONFINED. 

THIS IS A SUMMARY STATEMENT OF VIEWS WHICH IT WOULD SERVE NO PURPOSE
TO ELABORATE.  I THINK THAT THE BILL SHOULD BE DISMISSED WITHOUT
PREJUDICE. 
..END :























ADAMSON V. CALIFORNIA, 332 U.S. 46 


NO. 102.  ARGUED JANUARY 15-16, 1947.  - DECIDED JUNE 23, 1947.  - 27
CAL.2D 478, 165 P.2D 3, AFFIRMED. 


1.  THE GUARANTY OF THE FIFTH AMENDMENT THAT NO PERSON "SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF" IS NOT
MADE EFFECTIVE AGAINST STATE ACTION BY THE FOURTEENTH AMENDMENT. 
TWINING V. NEW JERSEY, 211 U.S. 78, AND PALKO V. CONNECTICUT, 302 U.S.
319, REAFFIRMED.  PP. 50-53. 

2.  THE PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT INHERENT IN THE
RIGHT TO A FAIR TRIAL, AND IS THEREFORE NOT ON THAT BASIS PROTECTED BY
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 53-54. 

3.  THE CONSTITUTION AND STATUTES OF CALIFORNIA PROVIDE THAT, IN ANY
CRIMINAL CASE, WHETHER THE DEFENDANT TESTIFIES OR NOT, HIS "FAILURE TO
EXPLAIN OR TO DENY BY HIS TESTIMONY ANY EVIDENCE OR FACTS IN THE CASE
AGAINST HIM MAY BE COMMENTED UPON" BY THE COURT AND BY COUNSEL, AND MAY
BE CONSIDERED BY THE COURT OR THE JURY.  IF THE DEFENDANT PLEADS NOT
GUILTY, BUT ADMITS A CHARGE THAT HE HAS SUFFERED A PREVIOUS CONVICTION,
THE CHARGE OF THE PREVIOUS CONVICTION MUST NOT BE READ TO THE JURY. 
HOWEVER, IF THE DEFENDANT TESTIFIES, THE PREVIOUS CONVICTION MAY ON
CROSS-EXAMINATION BE REVEALED TO THE JURY TO IMPEACH HIS TESTIMONY.  IN
A PROSECUTION FOR MURDER, IN WHICH THE DEFENDANT ADMITTED PREVIOUS
CONVICTIONS BUT DID NOT TESTIFY, THE TRIAL COURT INSTRUCTED THE JURY,
AND THE STATE'S ATTORNEY ARGUED THE CASE, IN ACCORDANCE WITH THE STATE
LAW.  HELD:  THE PROVISIONS OF THE CALIFORNIA LAW, AS APPLIED IN THE
CIRCUMSTANCES OF THIS CASE, DO NOT VIOLATE THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  PP. 53-58. 

4.  THERE IS NO BASIS IN THE CALIFORNIA LAW FOR THE DEFENDANT'S
OBJECTION ON DUE PROCESS OR OTHER GROUNDS THAT THE STATUTORY
AUTHORIZATION TO COMMENT ON THE FAILURE TO EXPLAIN OR DENY ADVERSE
TESTIMONY SHIFTS THE BURDEN OF PROOF OR THE DUTY TO GO FORWARD WITH THE
EVIDENCE.  P. 58. 

5.  THIS COURT DOES NOT INTERFERE WITH A CONCLUSION OF THE STATE
SUPREME COURT THAT IT WAS IMPROBABLE THAT THE JURY WAS MISLED BY THE
PROSECUTOR'S ARGUMENT TO BELIEVE THAT THE JURY COULD INFER GUILT SOLELY
FROM THE DEFENDANT'S SILENCE.  P. 58. 

6.  THE DEFENDANT IN THIS CASE WAS NOT DENIED DUE PROCESS OF LAW BY
THE ADMISSION IN EVIDENCE OF TOPS OF WOMEN'S STOCKINGS THAT WERE FOUND
IN HIS ROOM, EVEN THOUGH THEY DID NOT MATCH A STOCKING PART WHICH WAS
FOUND UNDER THE VICTIM'S BODY.  PP. 58-59. 

ADAMSON V. CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

APPELLANT WAS CONVICTED IN A STATE COURT OF MURDER IN THE FIRST
DEGREE.  THE CONVICTION WAS AFFIRMED BY THE STATE SUPREME COURT, 27
CAL.2D 478, 165 P.2D 3, WHICH SUSTAINED THE VALIDITY OF PROVISIONS OF
THE STATE LAW CHALLENGED AS VIOLATIVE OF THE FEDERAL CONSTITUTION. 
AFFIRMED, P. 59. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, ADAMSON, A CITIZEN OF THE UNITED STATES, WAS
CONVICTED, WITHOUT RECOMMENDATION FOR MERCY, BY A JURY IN A SUPERIOR
COURT OF THE STATE OF CALIFORNIA OF MURDER IN THE FIRST DEGREE.  FN1
AFTER CONSIDERING THE SAME OBJECTIONS TO THE CONVICTION THAT ARE
PRESSED HERE, THE SENTENCE OF DEATH WAS AFFIRMED BY THE SUPREME COURT
OF THE STATE.  27 CAL.2D 478, 165 P.2D 3.  REVIEW OF THAT JUDGMENT BY
THIS COURT WAS SOUGHT AND ALLOWED UNDER JUDICIAL CODE SEC. 237; 28
U.S.C. SEC. 344.  FN2  THE PROVISIONS OF CALIFORNIA LAW WHICH WERE
CHALLENGED IN THE STATE PROCEEDINGS AS INVALID UNDER THE FOURTEENTH
AMENDMENT TO THE FEDERAL CONSTITUTION ARE THOSE OF THE STATE
CONSTITUTION AND PENAL CODE IN THE MARGIN.  THEY PERMIT THE FAILURE OF
A DEFENDANT TO EXPLAIN OR TO DENY EVIDENCE AGAINST HIM TO BE COMMENTED
UPON BY COURT AND BY COUNSEL AND TO BE CONSIDERED BY COURT AND JURY. 
FN3  THE DEFENDANT DID NOT TESTIFY.  AS THE TRIAL COURT GAVE ITS
INSTRUCTIONS AND THE DISTRICT ATTORNEY ARGUED THE CASE IN ACCORDANCE
WITH THE CONSTITUTIONAL AND STATUTORY PROVISIONS JUST REFERRED TO, WE
HAVE FOR DECISION THE QUESTION OF THEIR CONSTITUTIONALITY IN THESE
CIRCUMSTANCES UNDER THE LIMITATIONS OF SEC. 1 OF THE FOURTEENTH
AMENDMENT.  FN4 

THE APPELLANT WAS CHARGED IN THE INFORMATION WITH FORMER CONVICTIONS
FOR BURGLARY, LARCENY AND ROBBERY AND PURSUANT TO SEC. 1025, CALIFORNIA
PENAL CODE, ANSWERED THAT HE HAD SUFFERED THE PREVIOUS CONVICTIONS. 
THIS ANSWER BARRED ALLUSION TO THESE CHARGES OF CONVICTIONS ON THE
TRIAL.  FN5  UNDER CALIFORNIA'S INTERPRETATION OF SEC. 1025 OF THE
PENAL CODE AND SEC. 2051 OF THE CODE OF CIVIL PROCEDURE, HOWEVER, IF
THE DEFENDANT, AFTER ANSWERING AFFIRMATIVELY CHARGES ALLEGING PRIOR
CONVICTIONS, TAKES THE WITNESS STAND TO DENY OR EXPLAIN AWAY OTHER
EVIDENCE THAT HAS BEEN INTRODUCED "THE COMMISSION OF THESE CRIMES COULD
HAVE BEEN REVEALED TO THE JURY ON CROSS-EXAMINATION TO IMPEACH HIS
TESTIMONY."  PEOPLE V. ADAMSON, 27 CAL.2D 478, 494, 165 P.2D 3, 11;
PEOPLE V. BRAUN, 14 CAL.2D 1, 6, 92 P.2D 402, 405.  THIS FORCES AN
ACCUSED WHO IS A REPEATED OFFENDER TO CHOOSE BETWEEN THE RISK OF HAVING
HIS PRIOR OFFENSES DISCLOSED TO THE JURY OR OF HAVING IT DRAW HARMFUL
INFERENCES FROM UNCONTRADICTED EVIDENCE THAT CAN ONLY BE DENIED OR
EXPLAINED BY THE DEFENDANT. 

IN THE FIRST PLACE, APPELLANT URGES THAT THE PROVISION OF THE FIFTH
AMENDMENT THAT NO PERSON "SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE
A WITNESS AGAINST HIMSELF" IS A FUNDAMENTAL NATIONAL PRIVILEGE OR
IMMUNITY PROTECTED AGAINST STATE ABRIDGMENT BY THE FOURTEENTH AMENDMENT
OR A PRIVILEGE OR IMMUNITY SECURED, THROUGH THE FOURTEENTH AMENDMENT,
AGAINST DEPRIVATION BY STATE ACTION BECAUSE IT IS A PERSONAL RIGHT,
ENUMERATED IN THE FEDERAL BILL OF RIGHTS. 

SECONDLY, APPELLANT RELIES UPON THE DUE PROCESS OF LAW CLAUSE OF THE
FOURTEENTH AMENDMENT TO INVALIDATE THE PROVISIONS OF THE CALIFORNIA
LAW, SET OUT IN NOTE 3 SUPRA, AND AS APPLIED (A) BECAUSE COMMENT ON
FAILURE TO TESTIFY IS PERMITTED, (B) BECAUSE APPELLANT WAS FORCED TO
FOREGO TESTIMONY IN PERSON BECAUSE OF DANGER OF DISCLOSURE OF HIS PAST
CONVICTIONS THROUGH CROSS-EXAMINATION, AND (C) BECAUSE THE PRESUMPTION
OF INNOCENCE WAS INFRINGED BY THE SHIFTING OF THE BURDEN OF PROOF TO
APPELLANT IN PERMITTING COMMENT ON HIS FAILURE TO TESTIFY. 

WE SHALL ASSUME, BUT WITHOUT ANY INTENTION THEREBY OF RULING UPON THE
ISSUE,  FN6  THAT PERMISSION BY LAW TO THE COURT, COUNSEL AND JURY TO
COMMENT UPON AND CONSIDER THE FAILURE OF DEFENDANT "TO EXPLAIN OR TO
DENY BY HIS TESTIMONY ANY EVIDENCE OR FACTS IN THE CASE AGAINST HIM"
WOULD INFRINGE DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION UNDER
THE FIFTH AMENDMENT IF THIS WERE A TRIAL IN A COURT OF THE UNITED
STATES UNDER A SIMILAR LAW.  SUCH AN ASSUMPTION DOES NOT DETERMINE
APPELLANT'S RIGHTS UNDER THE FOURTEENTH AMENDMENT.  IT IS SETTLED LAW
THAT THE CLAUSE OF THE FIFTH AMENDMENT, PROTECTING A PERSON AGAINST
BEING COMPELLED TO BE A WITNESS AGAINST HIMSELF, IS NOT MADE EFFECTIVE
BY THE FOURTEENTH AMENDMENT AS A PROTECTION AGAINST STATE ACTION ON THE
GROUND THAT FREEDOM FROM TESTIMONIAL COMPULSION IS A RIGHT OF NATIONAL
CITIZENSHIP, OR BECAUSE IT IS A PERSONAL PRIVILEGE OR IMMUNITY SECURED
BY THE FEDERAL CONSTITUTION AS ONE OF THE RIGHTS OF MAN THAT ARE LISTED
IN THE BILL OF RIGHTS. 

THE REASONING THAT LEADS TO THOSE CONCLUSIONS STARTS WITH THE
UNQUESTIONED PREMISE THAT THE BILL OF RIGHTS, WHEN ADOPTED, WAS FOR THE
PROTECTION OF THE INDIVIDUAL AGAINST THE FEDERAL GOVERNMENT AND ITS
PROVISIONS WERE INAPPLICABLE TO SIMILAR ACTIONS DONE BY THE STATES. 
BARRON V. BALTIMORE, 7 PET. 243; FELDMAN V. UNITED STATES, 322 U.S.
487, 490.  WITH THE ADOPTION OF THE FOURTEENTH AMENDMENT, IT WAS
SUGGESTED THAT THE DUAL CITIZENSHIP RECOGNIZED BY ITS FIRST SENTENCE
FN7 SECURED FOR CITIZENS FEDERAL PROTECTION FOR THEIR ELEMENTAL
PRIVILEGES AND IMMUNITIES OF STATE CITIZENSHIP.  THE SLAUGHTER-HOUSE
CASES  FN8 DECIDED, CONTRARY TO THE SUGGESTION, THAT THESE RIGHTS, AS
PRIVILEGES AND IMMUNITIES OF STATE CITIZENSHIP, REMAINED UNDER THE SOLE
PROTECTION OF THE STATE GOVERNMENTS.  THIS COURT, WITHOUT THE
EXPRESSION OF A CONTRARY VIEW UPON THAT PHASE OF THE ISSUES BEFORE THE
COURT, HAS APPROVED THIS DETERMINATION.  MAXWELL V. BUGBEE, 250 U.S.
525, 537; HAMILTON V. REGENTS, 293 U.S. 245, 261.  THE POWER TO FREE
DEFENDANTS IN STATE TRIALS FROM SELF-INCRIMINATION WAS SPECIFICALLY
DETERMINED TO BE BEYOND THE SCOPE OF THE PRIVILEGES AND IMMUNITIES
CLAUSE OF THE FOURTEENTH AMENDMENT IN TWINING V. NEW JERSEY, 211 U.S.
78, 91-98.  "THE PRIVILEGE AGAINST SELF-INCRIMINATION MAY BE WITHDRAWN
AND THE ACCUSED PUT UPON THE STAND AS A WITNESS FOR THE STATE."  FN9
THE TWINING CASE LIKEWISE DISPOSED OF THE CONTENTION THAT FREEDOM FROM
TESTIMONIAL COMPULSION, BEING SPECIFICALLY GRANTED BY THE BILL OF
RIGHTS, IS A FEDERAL PRIVILEGE OR IMMUNITY THAT IS PROTECTED BY THE
FOURTEENTH AMENDMENT AGAINST STATE INVASION.  THIS COURT HELD THAT THE
INCLUSION IN THE BILL OF RIGHTS OF THIS PROTECTION AGAINST THE POWER OF
THE NATIONAL GOVERNMENT DID NOT MAKE THE PRIVILEGE A FEDERAL PRIVILEGE
OR IMMUNITY SECURED TO CITIZENS BY THE CONSTITUTION AGAINST STATE
ACTION.  TWINING V. NEW JERSEY, SUPRA, AT 98-99; PALKO V. CONNECTICUT,
SUPRA, AT 328.  AFTER DECLARING THAT STATE AND NATIONAL CITIZENSHIP
COEXIST IN THE SAME PERSON, THE FOURTEENTH AMENDMENT FORBIDS A STATE
FROM ABRIDGING THE PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED
STATES.  AS A MATTER OF WORDS, THIS LEAVES A STATE FREE TO ABRIDGE,
WITHIN THE LIMITS OF THE DUE PROCESS CLAUSE, THE PRIVILEGES AND
IMMUNITIES FLOWING FROM STATE CITIZENSHIP.  THIS READING OF THE FEDERAL
CONSTITUTION HAS HERETOFORE FOUND FAVOR WITH THE MAJORITY OF THIS COURT
AS A NATURAL AND LOGICAL INTERPRETATION.  IT ACCORDS WITH THE
CONSTITUTIONAL DOCTRINE OF FEDERALISM BY LEAVING TO THE STATES THE
RESPONSIBILITY OF DEALING WITH THE PRIVILEGES AND IMMUNITIES OF THEIR
CITIZENS EXCEPT THOSE INHERENT IN NATIONAL CITIZENSHIP.  FN10  IT IS
THE CONSTRUCTION PLACED UPON THE AMENDMENT BY JUSTICES WHOSE OWN
EXPERIENCE HAD GIVEN THEM CONTEMPORANEOUS KNOWLEDGE OF THE PURPOSES
THAT LED TO THE ADOPTION OF THE FOURTEENTH AMENDMENT.  THIS
CONSTRUCTION HAS BECOME EMBEDDED IN OUR FEDERAL SYSTEM AS A FUNCTIONING
ELEMENT IN PRESERVING THE BALANCE BETWEEN NATIONAL AND STATE POWER.  WE
REAFFIRM THE CONCLUSION OF THE TWINING AND PALKO CASES THAT PROTECTION
AGAINST SELF-INCRIMINATION IS NOT A PRIVILEGE OR IMMUNITY OF NATIONAL
CITIZENSHIP. 

APPELLANT SECONDLY CONTENDS THAT IF THE PRIVILEGE AGAINST SELF
INCRIMINATION IS NOT A RIGHT PROTECTED BY THE PRIVILEGES AND IMMUNITIES
CLAUSE OF THE FOURTEENTH AMENDMENT AGAINST STATE ACTION, THIS
PRIVILEGE, TO ITS FULL SCOPE UNDER THE FIFTH AMENDMENT, INHERES IN THE
RIGHT TO A FAIR TRIAL.  A RIGHT TO A FAIR TRIAL IS A RIGHT ADMITTEDLY
PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  FN11
THEREFORE, APPELLANT ARGUES, THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT PROTECTS HIS PRIVILEGE AGAINST SELF-INCRIMINATION.  THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, HOWEVER, DOES NOT DRAW ALL
THE RIGHTS OF THE FEDERAL BILL OF RIGHTS UNDER ITS PROTECTION.  THAT
CONTENTION WAS MADE AND REJECTED IN PALKO V. CONNECTICUT, 302 U.S. 319,
323.  IT WAS REJECTED WITH CITATION OF THE CASES EXCLUDING SEVERAL OF
THE RIGHTS, PROTECTED BY THE BILL OF RIGHTS, AGAINST INFRINGEMENT BY
THE NATIONAL GOVERNMENT.  NOTHING HAS BEEN CALLED TO OUR ATTENTION THAT
EITHER THE FRAMERS OF THE FOURTEENTH AMENDMENT OR THE STATES THAT
ADOPTED INTENDED ITS DUE PROCESS CLAUSE TO DRAW WITHIN ITS SCOPE THE
EARLIER AMENDMENTS TO THE CONSTITUTION.  PALKO HELD THAT SUCH
PROVISIONS OF THE BILL OF RIGHTS AS WERE "IMPLICIT IN THE CONCEPT OF
ORDERED LIBERTY," P. 325, BECAME SECURE FROM STATE INTERFERENCE BY THE
CLAUSE.  BUT IT HELD NOTHING MORE. 

SPECIFICALLY, THE DUE PROCESS CLAUSE DOES NOT PROTECT, BY VIRTUE OF
ITS MERE EXISTENCE, THE ACCUSED'S FREEDOM FROM GIVING TESTIMONY BY
COMPULSION IN STATE TRIALS THAT IS SECURED TO HIM AGAINST FEDERAL
INTERFERENCE BY THE FIFTH AMENDMENT.  TWINING V. NEW JERSEY, 211 U.S.
78, 99-114; PALKO V. CONNECTICUT, SUPRA, P. 323.  FOR A STATE TO
REQUIRE TESTIMONY FROM AN ACCUSED IS NOT NECESSARILY A BREACH OF A
STATE'S OBLIGATION TO GIVE A FAIR TRIAL.  THEREFORE, WE MUST EXAMINE
THE EFFECT OF THE CALIFORNIA LAW APPLIED IN THIS TRIAL TO SEE WHETHER
THE COMMENT ON FAILURE TO TESTIFY VIOLATES THE PROTECTION AGAINST STATE
ACTION THAT THE DUE PROCESS CLAUSE DOES GRANT TO AN ACCUSED.  THE DUE
PROCESS CLAUSE FORBIDS COMPULSION TO TESTIFY BY FEAR OF HURT, TORTURE
OR EXHAUSTION.  FN12  IT FORBIDS ANY OTHER TYPE OF COERCION THAT FALLS
WITHIN THE SCOPE OF DUE PROCESS.  FN13  CALIFORNIA FOLLOWS ANGLO
AMERICAN LEGAL TRADITION IN EXCUSING DEFENDANTS IN CRIMINAL
PROSECUTIONS FROM COMPULSORY TESTIMONY.  CF. VIII WIGMORE ON EVIDENCE
(3D ED.)  SEC. 2252.  THAT IS A MATTER OF LEGAL POLICY AND NOT BECAUSE
OF THE REQUIREMENTS OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT. 
FN14  SO OUR INQUIRY IS DIRECTED, NOT AT THE BROAD QUESTION OF THE
CONSTITUTIONALITY OF COMPULSORY TESTIMONY FROM THE ACCUSED UNDER THE
DUE PROCESS CLAUSE, BUT TO THE CONSTITUTIONALITY OF THE PROVISION OF
THE CALIFORNIA LAW THAT PERMITS COMMENT UPON HIS FAILURE TO TESTIFY. 
IT IS, OF COURSE, LOGICALLY POSSIBLE THAT WHILE AN ACCUSED MIGHT BE
REQUIRED, UNDER APPROPRIATE PENALTIES, TO SUBMIT HIMSELF AS A WITNESS
WITHOUT A VIOLATION OF DUE PROCESS, COMMENT BY JUDGE OR JURY ON
INFERENCES TO BE DRAWN FROM HIS FAILURE TO TESTIFY, IN JURISDICTIONS
WHERE AN ACCUSED'S PRIVILEGE AGAINST SELF-INCRIMINATION IS PROTECTED,
MIGHT DENY DUE PROCESS.  FOR EXAMPLE, A STATUTE MIGHT DECLARE THAT A
PERMITTED REFUSAL TO TESTIFY WOULD COMPEL AN ACCEPTANCE OF THE TRUTH OF
THE PROSECUTION'S EVIDENCE. 

GENERALLY, COMMENT ON THE FAILURE OF AN ACCUSED TO TESTIFY IS
FORBIDDEN IN AMERICAN JURISDICTIONS.  FN15  THIS ARISES FROM STATE
CONSTITUTIONAL OR STATUTORY PROVISIONS SIMILAR IN CHARACTER TO THE
FEDERAL PROVISIONS.  FIFTH AMENDMENT AND 28 U.S.C. SEC. 632. 
CALIFORNIA, HOWEVER, IS ONE OF A FEW STATES THAT PERMIT LIMITED COMMENT
UPON A DEFENDANT'S FAILURE TO TESTIFY.  FN16  THAT PERMISSION IS
NARROW.  THE CALIFORNIA LAW IS SET OUT IN NOTE 3 AND AUTHORIZES COMMENT
BY COURT AND COUNSEL UPON THE "FAILURE OF THE DEFENDANT TO EXPLAIN OR
TO DENY BY HIS TESTIMONY ANY EVIDENCE OR FACTS IN THE CASE AGAINST
HIM."  THIS DOES NOT INVOLVE ANY PRESUMPTION, REBUTTABLE OR
IRREBUTTABLE, EITHER OF GUILT OR OF THE TRUTH OF ANY FACT, THAT IS
OFFERED IN EVIDENCE.  COMPARE TOT V. UNITED STATES, 319 U.S. 463, 470. 
IT ALLOWS INFERENCES TO BE DRAWN FROM PROVEN FACTS.  BECAUSE OF THIS
CLAUSE, THE COURT CAN DIRECT THE JURY'S ATTENTION TO WHATEVER EVIDENCE
THERE MAY BE THAT A DEFENDANT COULD DENY AND THE PROSECUTION CAN ARGUE
AS TO INFERENCES THAT MAY BE DRAWN FROM THE ACCUSED'S FAILURE TO
TESTIFY.  COMPARE CAMINETTI V. UNITED STATES, 242 U.S. 470, 492-95;
RAFFEL V. UNITED STATES, 271 U.S. 494, 497.  THERE IS HERE NO LACK OF
POWER IN THE TRIAL COURT TO ADJUDGE AND NO DENIAL OF A HEARING. 
CALIFORNIA HAS PRESCRIBED A METHOD FOR ADVISING THE JURY IN THE SEARCH
FOR TRUTH.  HOWEVER SOUND MAY BE THE LEGISLATIVE CONCLUSION THAT AN
ACCUSED SHOULD NOT BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS
AGAINST HIMSELF, WE SEE NO REASON WHY COMMENT SHOULD NOT BE MADE UPON
HIS SILENCE.  IT SEEMS QUITE NATURAL THAT WHEN A DEFENDANT HAS
OPPORTUNITY TO DENY OR EXPLAIN FACTS AND DETERMINES NOT TO DO SO, THE
PROSECUTION SHOULD BRING OUT THE STRENGTH OF THE EVIDENCE BY COMMENTING
UPON DEFENDANT'S FAILURE TO EXPLAIN OR DENY IT.  THE PROSECUTION
EVIDENCE MAY BE OF FACTS THAT MAY BE BEYOND THE KNOWLEDGE OF THE
ACCUSED.  IF SO, HIS FAILURE TO TESTIFY WOULD HAVE LITTLE IF ANY
WEIGHT.  BUT THE FACTS MAY BE SUCH AS ARE NECESSARILY IN THE KNOWLEDGE
OF THE ACCUSED.  IN THAT CASE A FAILURE TO EXPLAIN WOULD POINT TO AN
INABILITY TO EXPLAIN.    APPELLANT SETS OUT THE CIRCUMSTANCES OF THIS
CASE, HOWEVER, TO SHOW COERCION AND UNFAIRNESS IN PERMITTING COMMENT. 
THE GUILTY PERSON WAS NOT SEEN AT THE PLACE AND TIME OF THE CRIME. 
THERE WAS EVIDENCE, HOWEVER, THAT ENTRANCE TO THE PLACE OR ROOM WHERE
THE CRIME WAS COMMITTED MIGHT HAVE BEEN OBTAINED THROUGH A SMALL DOOR. 
IT WAS FRESHLY BROKEN.  EVIDENCE SHOWED THAT SIX FINGERPRINTS ON THE
DOOR WERE PETITIONER'S.  CERTAIN DIAMOND RINGS WERE MISSING FROM THE
DECEASED'S POSSESSION.  THERE WAS EVIDENCE THAT APPELLANT, SOMETIME
AFTER THE CRIME, ASKED AN UNIDENTIFIED PERSON WHETHER THE LATTER WOULD
BE INTERESTED IN PURCHASING A DIAMOND RING.  AS HAS BEEN STATED, THE
INFORMATION CHARGED OTHER CRIMES TO APPELLANT AND HE ADMITTED THEM. 
HIS ARGUMENT HERE IS THAT HE COULD NOT TAKE THE STAND TO DENY THE
EVIDENCE AGAINST HIM BECAUSE HE WOULD BE SUBJECTED TO A CROSS
EXAMINATION AS TO FORMER CRIMES TO IMPEACH HIS VERACITY AND THE
EVIDENCE SO PRODUCED MIGHT WELL BRING ABOUT HIS CONVICTION.  SUCH CROSS
EXAMINATION IS ALLOWABLE IN CALIFORNIA.  PEOPLE V. ADAMSON, 27 CAL.2D
478, 494, 165 P.2D 3, 11.  THEREFORE, APPELLANT CONTENDS THE CALIFORNIA
STATUTE PERMITTING COMMENT DENIES HIM DUE PROCESS. 

IT IS TRUE THAT IF COMMENT WERE FORBIDDEN, AN ACCUSED IN THIS
SITUATION COULD REMAIN SILENT AND AVOID EVIDENCE OF FORMER CRIMES AND
COMMENT UPON HIS FAILURE TO TESTIFY.  WE ARE OF THE VIEW, HOWEVER, THAT
A STATE MAY CONTROL SUCH A SITUATION IN ACCORDANCE WITH ITS OWN IDEAS
OF THE MOST EFFICIENT ADMINISTRATION OF CRIMINAL JUSTICE.  THE PURPOSE
OF DUE PROCESS IS NOT TO PROTECT AN ACCUSED AGAINST A PROPER CONVICTION
BUT AGAINST AN UNFAIR CONVICTION.  WHEN EVIDENCE IS BEFORE A JURY THAT
THREATENS CONVICTION, IT DOES NOT SEEM UNFAIR TO REQUIRE HIM TO CHOOSE
BETWEEN LEAVING THE ADVERSE EVIDENCE UNEXPLAINED AND SUBJECTING HIMSELF
TO IMPEACHMENT THROUGH DISCLOSURE OF FORMER CRIMES.  INDEED, THIS IS A
DILEMMA WITH WHICH ANY DEFENDANT MAY BE FACED.  IF FACTS, ADVERSE TO
THE DEFENDANT, ARE PROVEN BY THE PROSECUTION, THERE MAY BE NO WAY TO
EXPLAIN THEM FAVORABLY TO THE ACCUSED EXCEPT BY A WITNESS WHO MAY BE
VULNERABLE TO IMPEACHMENT ON CROSS-EXAMINATION.  THE DEFENDANT MUST
THEN DECIDE WHETHER OR NOT TO USE SUCH A WITNESS.  THE FACT THAT THE
WITNESS MAY ALSO BE THE DEFENDANT MAKES THE CHOICE MORE DIFFICULT BUT A
DENIAL OF DUE PROCESS DOES NOT EMERGE FROM THE CIRCUMSTANCES.  FN17 

THERE IS NO BASIS IN THE CALIFORNIA LAW FOR APPELLANT'S OBJECTION ON
DUE PROCESS OR OTHER GROUNDS THAT THE STATUTORY AUTHORIZATION TO
COMMENT ON THE FAILURE TO EXPLAIN OR DENY ADVERSE TESTIMONY SHIFTS THE
BURDEN OF PROOF OR THE DUTY TO GO FORWARD WITH THE EVIDENCE.  FAILURE
OF THE ACCUSED TO TESTIFY IS NOT AN ADMISSION OF THE TRUTH OF THE
ADVERSE EVIDENCE.  INSTRUCTIONS TOLD THE JURY THAT THE BURDEN OF PROOF
REMAINED UPON THE STATE AND THE PRESUMPTION OF INNOCENCE WITH THE
ACCUSED.  COMMENT ON FAILURE TO DENY PROVEN FACTS DOES NOT IN
CALIFORNIA TEND TO SUPPLY ANY MISSING ELEMENT OF PROOF OF GUILT. 
PEOPLE V. ADAMSON, 27 CAL.2D 478, 489-95, 165 P.2D 3, 9-12.  IT ONLY
DIRECTS ATTENTION TO THE STRENGTH OF THE EVIDENCE FOR THE PROSECUTION
OR TO THE WEAKNESS OF THAT FOR THE DEFENSE.  THE SUPREME COURT OF
CALIFORNIA CALLED ATTENTION TO THE FACT THAT THE PROSECUTOR'S ARGUMENT
APPROACHED THE BORDERLINE IN A STATEMENT THAT MIGHT HAVE BEEN CONSTRUED
AS ASSERTING "THAT THE JURY SHOULD INFER GUILT SOLELY FROM DEFENDANT'S
SILENCE."  THAT COURT FELT THAT IT WAS IMPROBABLE THE JURY WAS MISLED
INTO SUCH AN UNDERSTANDING OF THEIR POWER.  WE SHALL NOT INTERFERE WITH
SUCH A CONCLUSION.  PEOPLE V. ADAMSON, 27 CAL.2D 478, 494-95, 165 P.2D
3, 12. 

FINALLY, APPELLANT CONTENDS THAT DUE PROCESS OF LAW WAS DENIED HIM BY
THE INTRODUCTION AS EVIDENCE OF TOPS OF WOMEN'S STOCKINGS THAT WERE
FOUND IN HIS ROOM.  THE CLAIM IS MADE THAT SUCH EVIDENCE INFLAMED THE
JURY.  THE LOWER PART OF A WOMAN'S STOCKING WAS FOUND UNDER THE
VICTIM'S BODY.  THE TOP WAS NOT FOUND.  THE CORPSE WAS BARELEGGED.  THE
TOPS FROM DEFENDANT'S ROOM DID NOT MATCH THE LOWER PART FOUND UNDER THE
DEAD BODY.  THE CALIFORNIA COURT HELD THAT THE TOPS WERE ADMISSIBLE AS
EVIDENCE BECAUSE THIS "INTEREST IN WOMEN'S STOCKING TOPS IS A
CIRCUMSTANCE THAT TENDS TO IDENTIFY DEFENDANT" AS THE PERPETRATOR OF
THE CRIME.  WE DO NOT THINK THE INTRODUCTION OF THIS EVIDENCE VIOLATED
ANY FEDERAL CONSTITUTIONAL RIGHT. 

WE FIND NO OTHER ERROR THAT GIVES GROUND FOR OUR INTERVENTION IN
CALIFORNIA'S ADMINISTRATION OF CRIMINAL JUSTICE.  AFFIRMED. 

FN1  THERE WAS ALSO A CONVICTION FOR FIRST DEGREE BURGLARY.  THIS
REQUIRES NO DISCUSSION. 

FN2  THIS SECTION AUTHORIZES APPEAL TO THIS COURT FROM THE FINAL
JUDGMENT OF A STATE WHEN THE VALIDITY OF A STATE STATUTE IS QUESTIONED
ON THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION OF THE UNITED
STATES.  THE SECTION HAS BEEN APPLIED SO AS TO COVER A STATE
CONSTITUTIONAL PROVISION.  RAILWAY EXPRESS AGENCY, INC. V. VIRGINIA,
282 U.S. 440; KING MFG. CO. V. AUGUSTA, 277 U.S. 100. 

FN3  CONSTITUTION OF CALIFORNIA, ART. I, SEC. 13: 

"  ...  NO PERSON SHALL BE TWICE PUT IN JEOPARDY FOR THE SAME
OFFENSE; NOR 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; BUT IN ANY CRIMINAL CASE, WHETHER THE DEFENDANT
TESTIFIES OR NOT, HIS FAILURE TO EXPLAIN OR TO DENY BY HIS TESTIMONY
ANY EVIDENCE OR FACTS IN THE CASE AGAINST HIM MAY BE COMMENTED UPON BY
THE COURT AND BY COUNSEL, AND MAY BE CONSIDERED BY THE COURT OR THE
JURY.  ...  " 

PENAL CODE OF CALIFORNIA, SEC. 1323:  "A DEFENDANT IN A CRIMINAL
ACTION OR PROCEEDING CANNOT BE COMPELLED TO BE A WITNESS AGAINST
HIMSELF; BUT IF HE OFFERS HIMSELF AS A WITNESS, HE MAY BE CROSS
EXAMINED BY THE COUNSEL FOR THE PEOPLE AS TO ALL MATTERS ABOUT WHICH HE
WAS EXAMINED IN CHIEF.  THE FAILURE OF THE DEFENDANT TO EXPLAIN OR TO
DENY BY HIS TESTIMONY ANY EVIDENCE OR FACTS IN THE CASE AGAINST HIM MAY
BE COMMENTED UPON BY COUNSEL." 

FN4  "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." 

FN5  PENAL CODE OF CALIFORNIA, SEC. 1025:  "  ...  IN CASE THE
DEFENDANT PLEADS NOT GUILTY, AND ANSWERS THAT HE HAS SUFFERED THE
PREVIOUS CONVICTION, THE CHARGE OF THE PREVIOUS CONVICTION MUST NOT BE
READ TO THE JURY, NOR ALLUDED TO ON THE TRIAL." 

FN6  THE CALIFORNIA LAW PROTECTS A DEFENDANT AGAINST COMPULSION TO
TESTIFY, THOUGH ALLOWING COMMENT UPON HIS FAILURE TO MEET EVIDENCE
AGAINST HIM.  THE FIFTH AMENDMENT FORBIDS COMPULSION ON A DEFENDANT TO
TESTIFY.  BOYD V. UNITED STATES, 116 U.S. 616, 631, 632; CF. DAVIS V.
UNITED STATES, 328 U.S. 582, 587, 593.  A FEDERAL STATUTE THAT GREW OUT
OF THE EXTENSION OF PERMISSIBLE WITNESSES TO INCLUDE THOSE CHARGED WITH
OFFENSES NEGATIVES A PRESUMPTION AGAINST AN ACCUSED FOR FAILURE TO
AVAIL HIMSELF OF THE RIGHT TO TESTIFY IN HIS OWN DEFENSE.  28 U.S.C.
SEC. 632; BRUNO V. UNITED STATES, 308 U.S. 287.  IT WAS THIS STATUTE
WHICH IS INTERPRETED TO PROTECT THE DEFENDANT AGAINST COMMENT FOR HIS
CLAIM OF PRIVILEGE.  WILSON V. UNITED STATES, 149 U.S. 60, 66; JOHNSON
V. UNITED STATES, 318 U.S. 189, 199. 

FN7  "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." 

FN8  16 WALL.  36.  THE BRIEF OF MR. FELLOWS FOR THE PLAINTIFF IN
ERROR SET OUT THE LEGISLATIVE HISTORY IN AN EFFORT TO SHOW THAT THE
PURPOSE OF THE FIRST SECTION OF THE FOURTEENTH AMENDMENT WAS TO PUT THE
"RIGHTS OF CITIZENS" UNDER THE PROTECTION OF THE UNITED STATES.  IT WAS
POINTED OUT, P. 12, THAT THE FOURTEENTH AMENDMENT WAS NEEDED TO
ACCOMPLISH THAT RESULT.  AFTER QUOTING FROM THE DEBATES, THE BRIEF
SUMMARIZED THE ARGUMENT, AS FOLLOWS, P. 21: 

"AS THE RESULT OF THIS EXAMINATION, THE ONLY CONCLUSION TO BE ARRIVED
AT, AS TO THE INTENTION OF CONGRESS IN PROPOSING THE AMENDMENTS, AND
ESPECIALLY THE FIRST SECTION OF THE FOURTEENTH AMENDMENT, AND THE
INTERPRETATION UNIVERSALLY PUT UPON IT BY EVERY MEMBER OF CONGRESS,
WHETHER FRIEND OR FOE, THE INTERPRETATION IN WHICH ALL WERE AGREED,
WAS, IN THE WORDS OF MR. HALE, 'THAT IT WAS INTENDED TO APPLY TO EVERY
STATE WHICH HAS FAILED TO APPLY EQUAL PROTECTION TO LIFE, LIBERTY AND
PROPERTY;' OR IN THE WORDS OF MR. BINGHAM, 'THAT THE PROTECTION GIVEN
BY THE LAWS OF THE STATES SHALL BE EQUAL IN RESPECT TO LIFE, LIBERTY
AND PROPERTY TO ALL PERSONS;' OR IN THE LANGUAGE OF MR. SUMNER, THAT IT
ABOLISHED 'OLIGARCHY, ARISTOCRACY, CASTE, OR MONOPOLY WITH PECULIAR
PRIVILEGES AND POWERS.'" 

FN9  SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105; PALKO V. CONNECTICUT,
302 U.S. 319, 324; TWINING V. NEW JERSEY, SUPRA, 114. 

FN10  SEE MADDEN V. KENTUCKY, 309 U.S. 83, 90, AND CASES CITED; AND
SEE THE CONCURRING OPINIONS IN EDWARDS V. CALIFORNIA, 314 U.S. 160, AND
THE OPINION OF STONE, J., IN HAGUE V. C.I.O., 307 U.S. 496, 519. 

FN11  MOORE V. DEMPSEY, 261 U.S. 86, 91; CHAMBERS V. FLORIDA, 309
U.S. 227, 238; BUCHALTER V. NEW YORK, 319 U.S. 427. 

FN12  WHITE V. TEXAS, 310 U.S. 530; BROWN V. MISSISSIPPI, 297 U.S.
278; ASHCRAFT V. TENNESSEE, 322 U.S. 143, 154; ASHCRAFT V. TENNESSEE,
327 U.S. 274. 

FN13  SEE MALINSKI V. NEW YORK, 324 U.S. 401, CONCURRING OP. AT 414,
DISSENT AT 438; BUCHALTER V. NEW YORK, SUPRA, AT 429; PALKO V.
CONNECTICUT, SUPRA, AT 325; CARTER V. ILLINOIS, 329 U.S. 173. 

STATE ACTION MUST "BE CONSISTENT WITH THE FUNDAMENTAL PRINCIPLES OF
LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR CIVIL AND
POLITICAL INSTITUTIONS AND NOT INFREQUENTLY ARE DESIGNATED AS 'LAW OF
THE LAND.'"  HEBERT V. LOUISIANA, 272 U.S. 312, 316. 

FN14  TWINING V. NEW JERSEY, SUPRA, PP. 110-12. 

FN15  VIII WIGMORE, SUPRA, P. 412. 

FN16  THE CASES AND STATUTORY REFERENCES ARE COLLECTED IN VIII
WIGMORE, SUPRA, AT PP. 413 ET SEQ.  NEW JERSEY, OHIO AND VERMONT PERMIT
COMMENT.  THE QUESTION OF PERMITTING COMMENT UPON THE FAILURE OF AN
ACCUSED TO TESTIFY HAS BEEN A MATTER FOR CONSIDERATION IN RECENT
YEARS.  SEE REPORTS OF AMERICAN BAR ASSOCIATION (1931) 137;
PROCEEDINGS, AMERICAN LAW INSTITUTE, 1930-31, 202; REEDER, COMMENT UPON
FAILURE OF ACCUSED TO TESTIFY, 31 MICH. L. REV. 40; BRUCE, THE RIGHT TO
COMMENT ON THE FAILURE OF THE DEFENDANT TO TESTIFY, ID., 226. 

FN17  COMMENT HERE DID NOT FOLLOW A GRANT OF PRIVILEGE THAT CARRIED
IMMUNITY FROM COMMENT.  THE CHOICE BETWEEN GIVING EVIDENCE AND
REMAINING SILENT WAS AN OPEN CHOICE.  THERE WAS NO SUCH POSSIBLE
MISLEADING OF THE DEFENDANT AS WE CONDEMNED IN JOHNSON V. UNITED
STATES, 318 U.S. 189, 195-99. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

LESS THAN TEN YEARS AGO, MR. JUSTICE CARDOZO ANNOUNCED AS SETTLED
CONSTITUTIONAL LAW THAT WHILE THE FIFTH AMENDMENT, "WHICH IS NOT
DIRECTED TO THE STATES, BUT SOLELY TO THE FEDERAL GOVERNMENT," PROVIDES
THAT NO PERSON SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS
AGAINST HIMSELF, THE PROCESS OF LAW ASSURED BY THE FOURTEENTH AMENDMENT
DOES NOT REQUIRE SUCH IMMUNITY FROM SELF-CRIMINATION:  "IN PROSECUTIONS
BY A STATE, THE EXEMPTION WILL FAIL IF THE STATE ELECTS TO END IT." 
PALKO V. CONNECTICUT, 302 U.S. 319, 322, 324.  MR. JUSTICE CARDOZO
SPOKE FOR THE COURT, CONSISTING OF MR. CHIEF JUSTICE HUGHES, AND
MCREYNOLDS, BRANDEIS, SUTHERLAND, STONE, ROBERTS, BLACK, JJ.  (MR.
JUSTICE BUTLER DISSENTED.)  THE MATTER NO LONGER CALLED FOR DISCUSSION;
A REFERENCE TO TWINING V. NEW JERSEY, 211 U.S. 78, DECIDED THIRTY YEARS
BEFORE THE PALKO CASE, SUFFICED. 

DECISIONS OF THIS COURT DO NOT HAVE EQUAL INTRINSIC AUTHORITY.  THE
TWINING CASE SHOWS THE JUDICIAL PROCESS AT ITS BEST - COMPREHENSIVE
BRIEFS AND POWERFUL ARGUMENTS ON BOTH SIDES, FOLLOWED BY LONG
DELIBERATION, RESULTING IN AN OPINION BY MR. JUSTICE MOODY WHICH AT
ONCE GAINED AND HAS EVER SINCE RETAINED RECOGNITION AS ONE OF THE
OUTSTANDING OPINIONS IN THE HISTORY OF THE COURT.  AFTER ENJOYING
UNQUESTIONED PRESTIGE FOR FORTY YEARS, THE TWINING CASE SHOULD NOT NOW
BE DILUTED, EVEN UNWITTINGLY, EITHER IN ITS JUDICIAL PHILOSOPHY OR IN
ITS PARTICULARS.  AS THE SUREST WAY OF KEEPING THE TWINING CASE INTACT,
I WOULD AFFIRM THIS CASE ON ITS AUTHORITY. 

THE CIRCUMSTANCES OF THIS CASE PRESENT A MINOR VARIANT FROM WHAT WAS
BEFORE THE COURT IN TWINING V. NEW JERSEY, SUPRA.  THE ATTEMPT TO
INFLATE THE DIFFERENCE INTO CONSTITUTIONAL SIGNIFICANCE WAS ADEQUATELY
DEALT WITH BY MR. JUSTICE TRAYNOR IN THE COURT BELOW.  PEOPLE V.
ADAMSON, 27 CAL.2D 478, 165 P.2D 3.  THE MATTER LIES WITHIN A VERY
NARROW COMPASS.  THE POINT IS MADE THAT A DEFENDANT WHO HAS A
VULNERABLE RECORD WOULD, BY TAKING THE STAND, SUBJECT HIMSELF TO HAVING
HIS CREDIBILITY IMPEACHED THEREBY.  SEE RAFFEL V. UNITED STATES, 271
U.S. 494, 496-97.  ACCORDINGLY, UNDER CALIFORNIA LAW, HE IS CONFRONTED
WITH THE DILEMMA, WHETHER TO TESTIFY AND PERCHANCE HAVE HIS BAD RECORD
PREJUDICE HIM IN THE MINDS OF THE JURY, OR TO SUBJECT HIMSELF TO THE
UNFAVORABLE INFERENCE WHICH THE JURY MIGHT DRAW FROM HIS SILENCE.  AND
SO, IT IS ARGUED, IF HE CHOOSES THE LATTER ALTERNATIVE, THE JURY OUGHT
NOT TO BE ALLOWED TO ATTRIBUTE HIS SILENCE TO A CONSCIOUSNESS OF GUILT
WHEN IT MIGHT BE DUE MERELY TO A DESIRE TO ESCAPE DAMAGING CROSS
EXAMINATION. 

THIS DOES NOT CREATE AN ISSUE DIFFERENT FROM THAT SETTLED IN THE
TWINING CASE.  ONLY A TECHNICAL RULE OF LAW WOULD EXCLUDE FROM
CONSIDERATION THAT WHICH IS RELEVANT, AS A MATTER OF FAIR REASONING, TO
THE SOLUTION OF A PROBLEM.  SENSIBLE AND JUST-MINDED MEN, IN IMPORTANT
AFFAIRS OF LIFE, DEEM IT SIGNIFICANT THAT A MAN REMAINS SILENT WHEN
CONFRONTED WITH SERIOUS AND RESPONSIBLE EVIDENCE AGAINST HIMSELF WHICH
IT IS WITHIN HIS POWER TO CONTRADICT.  THE NOTION THAT TO ALLOW JURORS
TO DO THAT WHICH SENSIBLE AND RIGHT-MINDED MEN DO EVERY DAY VIOLATES
THE "IMMUTABLE PRINCIPLES OF JUSTICE" AS CONCEIVED BY A CIVILIZED
SOCIETY IS TO TRIVIALIZE THE IMPORTANCE OF "DUE PROCESS."  NOR DOES IT
MAKE ANY DIFFERENCE IN DRAWING SIGNIFICANCE FROM SILENCE UNDER SUCH
CIRCUMSTANCES THAT AN ACCUSED MAY DEEM IT MORE ADVANTAGEOUS TO REMAIN
SILENT THAN TO SPEAK, ON THE NICE CALCULATION THAT BY TAKING THE
WITNESS STAND HE MAY EXPOSE HIMSELF TO HAVING HIS CREDIBILITY IMPUGNED
BY REASON OF HIS CRIMINAL RECORD.  SILENCE UNDER SUCH CIRCUMSTANCES IS
STILL SIGNIFICANT.  A PERSON IN THAT SITUATION MAY EXPRESS TO THE JURY,
THROUGH APPROPRIATE REQUESTS TO CHARGE, WHY HE PREFERS TO KEEP SILENT. 
A MAN WHO HAS DONE ONE WRONG MAY PROVE HIS INNOCENCE ON A TOTALLY
DIFFERENT CHARGE.  TO DENY THAT THE JURY CAN BE TRUSTED TO MAKE SUCH
DISCRIMINATION IS TO SHOW LITTLE CONFIDENCE IN THE JURY SYSTEM.  THE
PROSECUTION IS FREQUENTLY COMPELLED TO RELY ON THE TESTIMONY OF SHADY
CHARACTERS WHOSE CREDIBILITY IS BOUND TO BE THE CHIEF TARGET OF THE
DEFENSE.  IT IS A COMMON PRACTICE IN CRIMINAL TRIALS TO DRAW OUT OF A
VULNERABLE WITNESS' MOUTH HIS VULNERABILITY, AND THEN CONVINCE THE JURY
THAT NEVERTHELESS HE IS TELLING THE TRUTH IN THIS PARTICULAR CASE. 
THIS IS ALSO A COMMON EXPERIENCE FOR DEFENDANTS. 

FOR HISTORICAL REASONS A LIMITED IMMUNITY FROM THE COMMON DUTY TO
TESTIFY WAS WRITTEN INTO THE FEDERAL BILL OF RIGHTS, AND I AM PREPARED
TO AGREE THAT, AS PART OF THAT IMMUNITY, COMMENT ON THE FAILURE OF AN
ACCUSED TO TAKE THE WITNESS STAND IS FORBIDDEN IN FEDERAL
PROSECUTIONS.  IT IS SO, OF COURSE, BY EXPLICIT ACT OF CONGRESS.  20
STAT. 30; SEE BRUNO V. UNITED STATES, 308 U.S. 287.  BUT TO SUGGEST
THAT SUCH A LIMITATION CAN BE DRAWN OUT OF "DUE PROCESS" IN ITS
PROTECTION OF ULTIMATE DECENCY IN A CIVILIZED SOCIETY IS TO SUGGEST
THAT THE DUE PROCESS CLAUSE FASTENED FETTERS OF UNREASON UPON THE
STATES.  (THIS OPINION IS CONCERNED SOLELY WITH A DISCUSSION OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  I PUT TO ONE SIDE THE
PRIVILEGES OR IMMUNITIES CLAUSE OF THAT AMENDMENT.  FOR THE MISCHIEVOUS
USES TO WHICH THAT CLAUSE WOULD LEND ITSELF IF ITS SCOPE WERE NOT
CONFINED TO THAT GIVEN IT BY ALL BUT ONE OF THE DECISIONS BEGINNING
WITH THE SLAUGHTER-HOUSE CASES, 16 WALL.  36, SEE THE DEVIATION IN
COLGATE V. HARVEY, 296 U.S. 404, OVERRULED BY MADDEN V. KENTUCKY, 309
U.S. 83.) 

BETWEEN THE INCORPORATION OF THE FOURTEENTH AMENDMENT INTO THE
CONSTITUTION AND THE BEGINNING OF THE PRESENT MEMBERSHIP OF THE COURT -
A PERIOD OF SEVENTY YEARS - THE SCOPE OF THAT AMENDMENT WAS PASSED UPON
BY FORTY-THREE JUDGES.  OF ALL THESE JUDGES, ONLY ONE, WHO MAY
RESPECTFULLY BE CALLED AN ECCENTRIC EXCEPTION, EVER INDICATED THE
BELIEF THAT THE FOURTEENTH AMENDMENT WAS A SHORTHAND SUMMARY OF THE
FIRST EIGHT AMENDMENTS THERETOFORE LIMITING ONLY THE FEDERAL
GOVERNMENT, AND THAT DUE PROCESS INCORPORATED THOSE EIGHT AMENDMENTS AS
RESTRICTIONS UPON THE POWERS OF THE STATES.  AMONG THESE JUDGES WERE
NOT ONLY THOSE WHO WOULD HAVE TO BE INCLUDED AMONG THE GREATEST IN THE
HISTORY OF THE COURT, BUT - IT IS ESPECIALLY RELEVANT TO NOTE - THEY
INCLUDED THOSE WHOSE SERVICES IN THE CAUSE OF HUMAN RIGHTS AND THE
SPIRIT OF FREEDOM ARE THE MOST CONSPICUOUS IN OUR HISTORY.  IT IS NOT
INVIDIOUS TO SINGLE OUT MILLER, DAVIS, BRADLEY, WAITE, MATTHEWS, GRAY,
FULLER, HOLMES, BRANDEIS, STONE AND CARDOZO (TO SPEAK ONLY OF THE DEAD)
AS JUDGES WHO WERE ALERT IN SAFEGUARDING AND PROMOTING THE INTERESTS OF
LIBERTY AND HUMAN DIGNITY THROUGH LAW.  BUT THEY WERE ALSO JUDGES
MINDFUL OF THE RELATION OF OUR FEDERAL SYSTEM TO A PROGRESSIVELY
DEMOCRATIC SOCIETY AND THEREFORE DULY REGARDFUL OF THE SCOPE OF
AUTHORITY THAT WAS LEFT TO THE STATES EVEN AFTER THE CIVIL WAR.  AND SO
THEY DID NOT FIND THAT THE FOURTEENTH AMENDMENT, CONCERNED AS IT WAS
WITH MATTERS FUNDAMENTAL TO THE PURSUIT OF JUSTICE, FASTENED UPON THE
STATES PROCEDURAL ARRANGEMENTS WHICH, IN THE LANGUAGE OF MR. JUSTICE
CARDOZO, ONLY THOSE WHO ARE "NARROW OR PROVINCIAL" WOULD DEEM ESSENTIAL
TO "A FAIR AND ENLIGHTENED SYSTEM OF JUSTICE."  PALKO V. CONNECTICUT,
302 U.S. 319, 325.  TO SUGGEST THAT IT IS INCONSISTENT WITH A TRULY
FREE SOCIETY TO BEGIN PROSECUTIONS WITHOUT AN INDICTMENT, TO TRY PETTY
CIVIL CASES WITHOUT THE PARAPHERNALIA OF A COMMON LAW JURY, TO TAKE
INTO CONSIDERATION THAT ONE WHO HAS FULL OPPORTUNITY TO MAKE A DEFENSE
REMAINS SILENT IS, IN DE TOCQUEVILLE'S PHRASE, TO CONFOUND THE FAMILIAR
WITH THE NECESSARY. 

THE SHORT ANSWER TO THE SUGGESTION THAT THE PROVISION OF THE
FOURTEENTH AMENDMENT, WHICH ORDAINS "NOR SHALL ANY STATE DEPRIVE ANY
PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW," WAS
A WAY OF SAYING THAT EVERY STATE MUST THEREAFTER INITIATE PROSECUTIONS
THROUGH INDICTMENT BY A GRAND JURY, MUST HAVE A TRIAL BY A JURY OF
TWELVE IN CRIMINAL CASES, AND MUST HAVE TRIAL BY SUCH A JURY IN COMMON
LAW SUITS WHERE THE AMOUNT IN CONTROVERSY EXCEEDS TWENTY DOLLARS, IS
THAT IT IS A STRANGE WAY OF SAYING IT.  IT WOULD BE EXTRAORDINARILY
STRANGE FOR A CONSTITUTION TO CONVEY SUCH SPECIFIC COMMANDS IN SUCH A
ROUNDABOUT AND INEXPLICIT WAY.  AFTER ALL, AN AMENDMENT TO THE
CONSTITUTION SHOULD BE READ IN A "'SENSE MOST OBVIOUS TO THE COMMON
UNDERSTANDING AT THE TIME OF ITS ADOPTION.'   ...  FOR IT WAS FOR
PUBLIC ADOPTION THAT IT WAS PROPOSED."  SEE MR. JUSTICE HOLMES IN
EISNER V. MACOMBER, 252 U.S. 189, 220.  THOSE READING THE ENGLISH
LANGUAGE WITH THE MEANING WHICH IT ORDINARILY CONVEYS, THOSE CONVERSANT
WITH THE POLITICAL AND LEGAL HISTORY OF THE CONCEPT OF DUE PROCESS,
THOSE SENSITIVE TO THE RELATIONS OF THE STATES TO THE CENTRAL
GOVERNMENT AS WELL AS THE RELATION OF SOME OF THE PROVISIONS OF THE
BILL OF RIGHTS TO THE PROCESS OF JUSTICE, WOULD HARDLY RECOGNIZE THE
FOURTEENTH AMENDMENT AS A COVER FOR THE VARIOUS EXPLICIT PROVISIONS OF
THE FIRST EIGHT AMENDMENTS.  SOME OF THESE ARE ENDURING REFLECTIONS OF
EXPERIENCE WITH HUMAN NATURE, WHILE SOME EXPRESS THE RESTRICTED VIEWS
OF EIGHTEENTH-CENTURY ENGLAND REGARDING THE BEST METHODS FOR THE
ASCERTAINMENT OF FACTS.  THE NOTION THAT THE FOURTEENTH AMENDMENT WAS A
COVERT WAY OF IMPOSING UPON THE STATES ALL THE RULES WHICH IT SEEMED
IMPORTANT TO EIGHTEENTH CENTURY STATESMEN TO WRITE INTO THE FEDERAL
AMENDMENTS, WAS REJECTED BY JUDGES WHO WERE THEMSELVES WITNESSES OF THE
PROCESS BY WHICH THE FOURTEENTH AMENDMENT BECAME PART OF THE
CONSTITUTION.  ARGUMENTS THAT MAY NOW BE ADDUCED TO PROVE THAT THE
FIRST EIGHT AMENDMENTS WERE CONCEALED WITHIN THE HISTORIC PHRASING* OF
THE FOURTEENTH AMENDMENT WERE NOT UNKNOWN AT THE TIME OF ITS ADOPTION. 
A SURER ESTIMATE OF THEIR BEARING WAS POSSIBLE FOR JUDGES AT THE TIME
THAN DISTORTING DISTANCE IS LIKELY TO VOUCHSAFE.  ANY EVIDENCE OF
DESIGN OR PURPOSE NOT CONTEMPORANEOUSLY KNOWN COULD HARDLY HAVE
INFLUENCED THOSE WHO RATIFIED THE AMENDMENT.  REMARKS OF A PARTICULAR
PROPONENT OF THE AMENDMENT, NO MATTER HOW INFLUENTIAL, ARE NOT TO BE
DEEMED PART OF THE AMENDMENT.  WHAT WAS SUBMITTED FOR RATIFICATION WAS
HIS PROPOSAL, NOT HIS SPEECH.  THUS, AT THE TIME OF THE RATIFICATION OF
THE FOURTEENTH AMENDMENT THE CONSTITUTIONS OF NEARLY HALF OF THE
RATIFYING STATES DID NOT HAVE THE RIGOROUS REQUIREMENTS OF THE FIFTH
AMENDMENT FOR INSTITUTING CRIMINAL PROCEEDINGS THROUGH A GRAND JURY. 
IT COULD HARDLY HAVE OCCURRED TO THESE STATES THAT BY RATIFYING THE
AMENDMENT THEY UPROOTED THEIR ESTABLISHED METHODS FOR PROSECUTING CRIME
AND FASTENED UPON THEMSELVES A NEW PROSECUTORIAL SYSTEM. 

*"THE PROHIBITION AGAINST DEPRIVING THE CITIZEN OR SUBJECT OF HIS
LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW, IS NOT NEW IN
THE CONSTITUTIONAL HISTORY OF THE ENGLISH RACE.  IT IS NOT NEW IN THE
CONSTITUTIONAL HISTORY OF THIS COUNTRY, AND IT WAS NOT NEW IN THE
CONSTITUTION OF THE UNITED STATES WHEN IT BECAME A PART OF THE
FOURTEENTH AMENDMENT, IN THE YEAR 1866."  DAVIDSON V. NEW ORLEANS, 96
U.S. 97, 101. 

INDEED, THE SUGGESTION THAT THE FOURTEENTH AMENDMENT INCORPORATES THE
FIRST EIGHT AMENDMENTS AS SUCH IS NOT UNAMBIGUOUSLY URGED.  EVEN THE
BOLDEST INNOVATOR WOULD SHRINK FROM SUGGESTING TO MORE THAN HALF THE
STATES THAT THEY MAY NO LONGER INITIATE PROSECUTIONS WITHOUT INDICTMENT
BY GRAND JURY, OR THAT THEREAFTER ALL THE STATES OF THE UNION MUST
FURNISH A JURY OF TWELVE FOR EVERY CASE INVOLVING A CLAIM ABOVE TWENTY
DOLLARS.  THERE IS SUGGESTED MERELY A SELECTIVE INCORPORATION OF THE
FIRST EIGHT AMENDMENTS INTO THE FOURTEENTH AMENDMENT.  SOME ARE IN AND
SOME ARE OUT, BUT WE ARE LEFT IN THE DARK AS TO WHICH ARE IN AND WHICH
ARE OUT.  NOR ARE WE GIVEN THE CALCULUS FOR DETERMINING WHICH GO IN AND
WHICH STAY OUT.  IF THE BASIS OF SELECTION IS MERELY THAT THOSE
PROVISIONS OF THE FIRST EIGHT AMENDMENTS ARE INCORPORATED WHICH COMMEND
THEMSELVES TO INDIVIDUAL JUSTICES AS INDISPENSABLE TO THE DIGNITY AND
HAPPINESS OF A FREE MAN, WE ARE THROWN BACK TO A MERELY SUBJECTIVE
TEST.  THE PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE MIGHT
HAVE PRIMACY FOR ONE JUDGE, WHILE TRIAL BY A JURY OF TWELVE FOR EVERY
CLAIM ABOVE TWENTY DOLLARS MIGHT APPEAR TO ANOTHER AS AN ULTIMATE NEED
IN A FREE SOCIETY.  IN THE HISTORY OF THOUGHT "NATURAL LAW" HAS A MUCH
LONGER AND MUCH BETTER FOUNDED MEANING AND JUSTIFICATION THAN SUCH
SUBJECTIVE SELECTION OF THE FIRST EIGHT AMENDMENTS FOR INCORPORATION
INTO THE FOURTEENTH.  IF ALL THAT IS MEANT IS THAT DUE PROCESS CONTAINS
WITHIN ITSELF CERTAIN MINIMAL STANDARDS WHICH ARE "OF THE VERY ESSENCE
OF A SCHEME OF ORDERED LIBERTY," PALKO V. CONNECTICUT, 302 U.S. 319,
325, PUTTING UPON THIS COURT THE DUTY OF APPLYING THESE STANDARDS FROM
TIME TO TIME, THEN WE HAVE MERELY ARRIVED AT THE INSIGHT WHICH OUR
PREDECESSORS LONG AGO EXPRESSED.  WE ARE CALLED UPON TO APPLY TO THE
DIFFICULT ISSUES OF OUR OWN DAY THE WISDOM AFFORDED BY THE GREAT
OPINIONS IN THIS FIELD, SUCH AS THOSE IN DAVIDSON V. NEW ORLEANS, 96
U.S. 97; MISSOURI V. LEWIS, 101 U.S. 22; HURTADO V. CALIFORNIA, 110
U.S. 516; HOLDEN V. HARDY, 169 U.S. 366; TWINING V. NEW JERSEY, 211
U.S. 78, AND PALKO V. CONNECTICUT, 302 U.S. 319.  THIS GUIDANCE BIDS US
TO BE DULY MINDFUL OF THE HERITAGE OF THE PAST, WITH ITS GREAT LESSONS
OF HOW LIBERTIES ARE WON AND HOW THEY ARE LOST.  AS JUDGES CHARGED WITH
THE DELICATE TASK OF SUBJECTING THE GOVERNMENT OF A CONTINENT TO THE
RULE OF LAW WE MUST BE PARTICULARLY MINDFUL THAT IT IS "A CONSTITUTION
WE ARE EXPOUNDING," SO THAT IT SHOULD NOT BE IMPRISONED IN WHAT ARE
MERELY LEGAL FORMS EVEN THOUGH THEY HAVE THE SANCTION OF THE EIGHTEENTH
CENTURY. 

IT MAY NOT BE AMISS TO RESTATE THE PERVASIVE FUNCTION OF THE
FOURTEENTH AMENDMENT IN EXACTING FROM THE STATES OBSERVANCE OF BASIC
LIBERTIES.  SEE MALINSKI V. NEW YORK, 324 U.S. 401, 412 ET SEQ.;
LOUISIANA V. RESWEBER, 329 U.S. 459, 466 ET SEQ. THE AMENDMENT NEITHER
COMPREHENDS THE SPECIFIC PROVISIONS BY WHICH THE FOUNDERS DEEMED IT
APPROPRIATE TO RESTRICT THE FEDERAL GOVERNMENT NOR IS IT CONFINED TO
THEM.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT HAS AN
INDEPENDENT POTENCY, PRECISELY AS DOES THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT IN RELATION TO THE FEDERAL GOVERNMENT.  IT OUGHT NOT TO
REQUIRE ARGUMENT TO REJECT THE NOTION THAT DUE PROCESS OF LAW MEANT ONE
THING IN THE FIFTH AMENDMENT AND ANOTHER IN THE FOURTEENTH.  THE FIFTH
AMENDMENT SPECIFICALLY PROHIBITS PROSECUTION OF AN "INFAMOUS CRIME"
EXCEPT UPON INDICTMENT; IT FORBIDS DOUBLE JEOPARDY; IT BARS COMPELLING
A PERSON TO BE A WITNESS AGAINST HIMSELF IN ANY CRIMINAL CASE; IT
PRECLUDES DEPRIVATION OF "LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE
PROCESS OF LAW  ...  "  ARE MADISON AND HIS CONTEMPORARIES IN THE
FRAMING OF THE BILL OF RIGHTS TO BE CHARGED WITH WRITING INTO IT A
MEANINGLESS CLAUSE?  TO CONSIDER "DUE PROCESS OF LAW" AS MERELY A
SHORTHAND STATEMENT OF OTHER SPECIFIC CLAUSES IN THE SAME AMENDMENT IS
TO ATTRIBUTE TO THE AUTHORS AND PROPONENTS OF THIS AMENDMENT IGNORANCE
OF, OR INDIFFERENCE TO, A HISTORIC CONCEPTION WHICH WAS ONE OF THE
GREAT INSTRUMENTS IN THE ARSENAL OF CONSTITUTIONAL FREEDOM WHICH THE
BILL OF RIGHTS WAS TO PROTECT AND STRENGTHEN. 

A CONSTRUCTION WHICH GIVES TO DUE PROCESS NO INDEPENDENT FUNCTION BUT
TURNS IT INTO A SUMMARY OF THE SPECIFIC PROVISIONS OF THE BILL OF
RIGHTS WOULD, AS HAS BEEN NOTED, TEAR UP BY THE ROOTS MUCH OF THE
FABRIC OF LAW IN THE SEVERAL STATES, AND WOULD DEPRIVE THE STATES OF
OPPORTUNITY FOR REFORMS IN LEGAL PROCESS DESIGNED FOR EXTENDING THE
AREA OF FREEDOM.  IT WOULD ASSUME THAT NO OTHER ABUSES WOULD REVEAL
THEMSELVES IN THE COURSE OF TIME THAN THOSE WHICH HAD BECOME MANIFEST
IN 1791.  SUCH A VIEW NOT ONLY DISREGARDS THE HISTORIC MEANING OF "DUE
PROCESS."  IT LEADS INEVITABLY TO A WARPED CONSTRUCTION OF SPECIFIC
PROVISIONS OF THE BILL OF RIGHTS TO BRING WITHIN THEIR SCOPE CONDUCT
CLEARLY CONDEMNED BY DUE PROCESS BUT NOT EASILY FITTING INTO THE PIGEON
HOLES OF THE SPECIFIC PROVISIONS.  IT SEEMS PRETTY LATE IN THE DAY TO
SUGGEST THAT A PHRASE SO LADEN WITH HISTORIC MEANING SHOULD BE GIVEN AN
IMPROVISED CONTENT CONSISTING OF SOME BUT NOT ALL OF THE PROVISIONS OF
THE FIRST EIGHT AMENDMENTS, SELECTED ON AN UNDEFINED BASIS, WITH
IMPROVISATION OF CONTENT FOR THE PROVISIONS SO SELECTED. 

AND SO, WHEN, AS IN A CASE LIKE THE PRESENT, A CONVICTION IN A STATE
COURT IS HERE FOR REVIEW UNDER A CLAIM THAT A RIGHT PROTECTED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT HAS BEEN DENIED, THE
ISSUE IS NOT WHETHER AN INFRACTION OF ONE OF THE SPECIFIC PROVISIONS OF
THE FIRST EIGHT AMENDMENTS IS DISCLOSED BY THE RECORD.  THE RELEVANT
QUESTION IS WHETHER THE CRIMINAL PROCEEDINGS WHICH RESULTED IN
CONVICTION DEPRIVED THE ACCUSED OF THE DUE PROCESS OF LAW TO WHICH THE
UNITED STATES CONSTITUTION ENTITLED HIM.  JUDICIAL REVIEW OF THAT
GUARANTY OF THE FOURTEENTH AMENDMENT INESCAPABLY IMPOSES UPON THIS
COURT AN EXERCISE OF JUDGMENT UPON THE WHOLE COURSE OF THE PROCEEDINGS
IN ORDER TO ASCERTAIN WHETHER THEY OFFEND THOSE CANONS OF DECENCY AND
FAIRNESS WHICH EXPRESS THE NOTIONS OF JUSTICE OF ENGLISH-SPEAKING
PEOPLES EVEN TOWARD THOSE CHARGED WITH THE MOST HEINOUS OFFENSES. 
THESE STANDARDS OF JUSTICE ARE NOT AUTHORITATIVELY FORMULATED ANYWHERE
AS THOUGH THEY WERE PRESCRIPTIONS IN A PHARMACOPOEIA.  BUT NEITHER DOES
THE APPLICATION OF THE DUE PROCESS CLAUSE IMPLY THAT JUDGES ARE WHOLLY
AT LARGE.  THE JUDICIAL JUDGMENT IN APPLYING THE DUE PROCESS CLAUSE
MUST MOVE WITHIN THE LIMITS OF ACCEPTED NOTIONS OF JUSTICE AND IS NOT
TO BE BASED UPON THE IDIOSYNCRASIES OF A MERELY PERSONAL JUDGMENT.  THE
FACT THAT JUDGES AMONG THEMSELVES MAY DIFFER WHETHER IN A PARTICULAR
CASE A TRIAL OFFENDS ACCEPTED NOTIONS OF JUSTICE IS NOT DISPROOF THAT
GENERAL RATHER THAN IDIOSYNCRATIC STANDARDS ARE APPLIED.  AN IMPORTANT
SAFEGUARD AGAINST SUCH MERELY INDIVIDUAL JUDGMENT IS AN ALERT DEFERENCE
TO THE JUDGMENT OF THE STATE COURT UNDER REVIEW. 

MR. JUSTICE BLACK, DISSENTING. 

THE APPELLANT WAS TRIED FOR MURDER IN A CALIFORNIA STATE COURT.  HE
DID NOT TAKE THE STAND AS A WITNESS IN HIS OWN BEHALF.  THE PROSECUTING
ATTORNEY, UNDER PURPORTED AUTHORITY OF A CALIFORNIA STATUTE, CAL. PENAL
CODE, SEC. 1323(HILLYER-LAKE, 1945), ARGUED TO THE JURY THAT AN
INFERENCE OF GUILT COULD BE DRAWN BECAUSE OF APPELLANT'S FAILURE TO
DENY EVIDENCE OFFERED AGAINST HIM.  THE APPELLANT'S CONTENTION IN THE
STATE COURT AND HERE HAS BEEN THAT THE STATUTE DENIES HIM A RIGHT
GUARANTEED BY THE FEDERAL CONSTITUTION.  THE ARGUMENT IS THAT (1)
PERMITTING COMMENT UPON HIS FAILURE TO TESTIFY HAS THE EFFECT OF
COMPELLING HIM TO TESTIFY SO AS TO VIOLATE THAT PROVISION OF THE BILL
OF RIGHTS CONTAINED IN THE FIFTH AMENDMENT THAT "NO PERSON  ...  SHALL
BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF"; AND
(2) ALTHOUGH THIS PROVISION OF THE FIFTH AMENDMENT ORIGINALLY APPLIED
ONLY AS A RESTRAINT UPON FEDERAL COURTS, BARRON V. BALTIMORE, 7 PET.
243, THE FOURTEENTH AMENDMENT WAS INTENDED TO, AND DID, MAKE THE
PROHIBITION AGAINST COMPELLED TESTIMONY APPLICABLE TO TRIALS IN STATE
COURTS. 

THE COURT REFUSES TO MEET AND DECIDE THE APPELLANT'S FIRST
CONTENTION.  BUT WHILE THE COURT'S OPINION, AS I READ IT, STRONGLY
IMPLIES THAT THE FIFTH AMENDMENT DOES NOT, OF ITSELF, BAR COMMENT UPON
FAILURE TO TESTIFY IN FEDERAL COURTS, THE COURT NEVERTHELESS ASSUMES
THAT IT DOES IN ORDER TO REACH THE SECOND CONSTITUTIONAL QUESTION
INVOLVED IN APPELLANT'S CASE.  I MUST CONSIDER THE CASE ON THE SAME
ASSUMPTION THAT THE COURT DOES.  FOR THE DISCUSSION OF THE SECOND
CONTENTION TURNS OUT TO BE A DECISION WHICH REACHES FAR BEYOND THE
RELATIVELY NARROW ISSUES ON WHICH THIS CASE MIGHT HAVE TURNED. 

THIS DECISION REASSERTS A CONSTITUTIONAL THEORY SPELLED OUT IN
TWINING V. NEW JERSEY, 211 U.S. 78, THAT THIS COURT IS ENDOWED BY THE
CONSTITUTION WITH BOUNDLESS POWER UNDER "NATURAL LAW" PERIODICALLY TO
EXPAND AND CONTRACT CONSTITUTIONAL STANDARDS TO CONFORM TO THE COURT'S
CONCEPTION OF WHAT AT A PARTICULAR TIME CONSTITUTES "CIVILIZED DECENCY"
AND "FUNDAMENTAL LIBERTY AND JUSTICE."  FN1  INVOKING THIS TWINING
RULE, THE COURT CONCLUDES THAT ALTHOUGH COMMENT UPON TESTIMONY IN A
FEDERAL COURT WOULD VIOLATE THE FIFTH AMENDMENT, IDENTICAL COMMENT IN A
STATE COURT DOES NOT VIOLATE TODAY'S FASHION IN CIVILIZED DECENCY AND
FUNDAMENTALS AND IS THEREFORE NOT PROHIBITED BY THE FEDERAL
CONSTITUTION AS AMENDED. 

THE TWINING CASE WAS THE FIRST, AS IT IS THE ONLY, DECISION OF THIS
COURT WHICH HAS SQUARELY HELD THAT STATES WERE FREE, NOTWITHSTANDING
THE FIFTH AND FOURTEENTH AMENDMENTS, TO EXTORT EVIDENCE FROM ONE
ACCUSED OF CRIME.  FN2  I AGREE THAT IF TWINING BE REAFFIRMED, THE
RESULT REACHED MIGHT APPROPRIATELY FOLLOW.  BUT I WOULD NOT REAFFIRM
THE TWINING DECISION.  I THINK THAT DECISION AND THE "NATURAL LAW"
THEORY OF THE CONSTITUTION UPON WHICH IT RELIES DEGRADE THE
CONSTITUTIONAL SAFEGUARDS OF THE BILL OF RIGHTS AND SIMULTANEOUSLY
APPROPRIATE FOR THIS COURT A BROAD POWER WHICH WE ARE NOT AUTHORIZED BY
THE CONSTITUTION TO EXERCISE.  FURTHERMORE, THE TWINING DECISION RESTED
ON PREVIOUS CASES AND BROAD HYPOTHESES WHICH HAVE BEEN UNDERCUT BY
INTERVENING DECISIONS OF THIS COURT.  SEE CORWIN, THE SUPREME COURT'S
CONSTRUCTION OF THE SELF-INCRIMINATION CLAUSE, 29 MICH. L. REV. 1, 191,
202.  MY REASONS FOR BELIEVING THAT THE TWINING DECISION SHOULD NOT BE
REVITALIZED CAN BEST BE UNDERSTOOD BY REFERENCE TO THE CONSTITUTIONAL,
JUDICIAL, AND GENERAL HISTORY THAT PRECEDED AND FOLLOWED THE CASE. 
THAT REFERENCE MUST BE ABBREVIATED FAR MORE THAN IS JUSTIFIED BUT FOR
THE NECESSARY LIMITATIONS OF OPINION-WRITING. 

THE FIRST TEN AMENDMENTS WERE PROPOSED AND ADOPTED LARGELY BECAUSE OF
FEAR THAT GOVERNMENT MIGHT UNDULY INTERFERE WITH PRIZED INDIVIDUAL
LIBERTIES.  THE PEOPLE WANTED AND DEMANDED A BILL OF RIGHTS WRITTEN
INTO THEIR CONSTITUTION.  THE AMENDMENTS EMBODYING THE BILL OF RIGHTS
WERE INTENDED TO CURB ALL BRANCHES OF THE FEDERAL GOVERNMENT IN THE
FIELDS TOUCHED BY THE AMENDMENTS - LEGISLATIVE, EXECUTIVE, AND
JUDICIAL.  THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS WERE POINTEDLY AIMED
AT CONFINING EXERCISE OF POWER BY COURTS AND JUDGES WITHIN PRECISE
BOUNDARIES, PARTICULARLY IN THE PROCEDURE USED FOR THE TRIAL OF
CRIMINAL CASES.  FN3  PAST HISTORY PROVIDED STRONG REASONS FOR THE
APPREHENSIONS WHICH BROUGHT THESE PROCEDURAL AMENDMENTS INTO BEING AND
ATTEST THE WISDOM OF THEIR ADOPTION.  FOR THE FEARS OF ARBITRARY COURT
ACTION SPRANG LARGELY FROM THE PAST USE OF COURTS IN THE IMPOSITION OF
CRIMINAL PUNISHMENTS TO SUPPRESS SPEECH, PRESS, AND RELIGION.  HENCE
THE CONSTITUTIONAL LIMITATIONS OF COURTS' POWERS WERE, IN THE VIEW OF
THE FOUNDERS, ESSENTIAL SUPPLEMENTS TO THE FIRST AMENDMENT, WHICH WAS
ITSELF DESIGNED TO PROTECT THE WIDEST SCOPE FOR ALL PEOPLE TO BELIEVE
AND TO EXPRESS THE MOST DIVERGENT POLITICAL, RELIGIOUS, AND OTHER
VIEWS. 

BUT THESE LIMITATIONS WERE NOT EXPRESSLY IMPOSED UPON STATE COURT
ACTION.  IN 1833, BARRON V. BALTIMORE, SUPRA, WAS DECIDED BY THIS
COURT.  IT SPECIFICALLY HELD INAPPLICABLE TO THE STATES THAT PROVISION
OF THE FIFTH AMENDMENT WHICH DECLARES:  "NOR SHALL PRIVATE PROPERTY BE
TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION."  IN DECIDING THE
PARTICULAR POINT RAISED, THE COURT THERE SAID THAT IT COULD NOT HOLD
THAT THE FIRST EIGHT AMENDMENTS APPLIED TO THE STATES.  THIS WAS THE
CONTROLLING CONSTITUTIONAL RULE WHEN THE FOURTEENTH AMENDMENT WAS
PROPOSED IN 1866.  FN4 

MY STUDY OF THE HISTORICAL EVENTS THAT CULMINATED IN THE FOURTEENTH
AMENDMENT, AND THE EXPRESSIONS OF THOSE WHO SPONSORED AND FAVORED, AS
WELL AS THOSE WHO OPPOSED ITS SUBMISSION AND PASSAGE, PERSUADES ME THAT
ONE OF THE CHIEF OBJECTS THAT THE PROVISIONS OF THE AMENDMENT'S FIRST
MAKE THE BILL OF RIGHTS, APPLICABLE TO THE STATES.  FN5  WITH FULL
KNOWLEDGE OF THE IMPORT OF THE BARRON DECISION, THE FRAMERS AND BACKERS
OF THE FOURTEENTH AMENDMENT PROCLAIMED ITS PURPOSE TO BE TO OVERTURN
THE CONSTITUTIONAL RULE THAT CASE HAD ANNOUNCED.  THIS HISTORICAL
PURPOSE HAS NEVER RECEIVED FULL CONSIDERATION OR EXPOSITION IN ANY
OPINION OF THIS COURT INTERPRETING THE AMENDMENT. 

IN CONSTRUING OTHER CONSTITUTIONAL PROVISIONS, THIS COURT HAS ALMOST
UNIFORMLY FOLLOWED THE PRECEPT OF EX PARTE BAIN, 121 U.S. 1, 12, THAT
"IT IS NEVER TO BE FORGOTTEN THAT, IN THE CONSTRUCTION OF THE LANGUAGE
OF THE CONSTITUTION  ...  , AS INDEED IN ALL OTHER INSTANCES WHERE
CONSTRUCTION BECOMES NECESSARY, WE ARE TO PLACE OURSELVES AS NEARLY AS
POSSIBLE IN THE CONDITION OF THE MEN WHO FRAMED THAT INSTRUMENT."  SEE
ALSO EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 8, 28, 33; THORNHILL V.
ALABAMA, 310 U.S. 88, 95, 102; KNOWLTON V. MOORE, 178 U.S. 41, 89, 106;
REYNOLDS V. UNITED STATES, 98 U.S. 145, 162; BARRON V. BALTIMORE, SUPRA
AT 250-251; COHENS V. VIRGINIA, 6 WHEAT.  264, 416-420. 

INVESTIGATION OF THE CASES RELIED UPON IN TWINING V. NEW JERSEY TO
SUPPORT THE CONCLUSION THERE REACHED THAT NEITHER THE FIFTH AMENDMENT'S
PROHIBITION OF COMPELLED TESTIMONY, NOR ANY OF THE BILL OF RIGHTS,
APPLIES TO THE STATES, REVEALS AN UNEXPLAINED DEPARTURE FROM THIS
SALUTARY PRACTICE.  NEITHER THE BRIEFS NOR OPINIONS IN ANY OF THESE
CASES, EXCEPT MAXWELL V. DOW, 176 U.S. 581, MAKE REFERENCE TO THE
LEGISLATIVE AND CONTEMPORARY HISTORY FOR THE PURPOSE OF DEMONSTRATING
THAT THOSE WHO CONCEIVED, SHAPED, AND BROUGHT ABOUT THE ADOPTION OF THE
FOURTEENTH AMENDMENT INTENDED IT TO NULLIFY THIS COURT'S DECISION IN
BARRON V. BALTIMORE, SUPRA, AND THEREBY TO MAKE THE BILL OF RIGHTS
APPLICABLE TO THE STATES.  IN MAXWELL V. DOW, SUPRA, THE ISSUE TURNED
ON WHETHER THE BILL OF RIGHTS GUARANTEE OF A JURY TRIAL WAS, BY THE
FOURTEENTH AMENDMENT, EXTENDED TO TRIALS IN STATE COURTS.  IN THAT CASE
COUNSEL FOR APPELLANT DID CITE FROM THE SPEECH OF SENATOR HOWARD,
APPENDIX, INFRA, P. 104, WHICH SO EMPHATICALLY STATED THE UNDERSTANDING
OF THE FRAMERS OF THE AMENDMENT - THE COMMITTEE ON RECONSTRUCTION FOR
WHICH HE SPOKE - THAT THE BILL OF RIGHTS WAS TO BE MADE APPLICABLE TO
THE STATES BY THE AMENDMENT'S FIRST SECTION.  THE COURT'S OPINION IN
MAXWELL V. DOW, SUPRA, 601, ACKNOWLEDGED THAT COUNSEL HAD "CITED FROM
THE SPEECH OF ONE OF THE SENATORS," BUT INDICATED THAT IT WAS NOT
ADVISED WHAT OTHER SPEECHES WERE MADE IN THE SENATE OR IN THE HOUSE. 
THE COURT CONSIDERED, MOREOVER, THAT "WHAT INDIVIDUAL SENATORS OR
REPRESENTATIVES MAY HAVE URGED IN DEBATE, IN REGARD TO THE MEANING TO
BE GIVEN TO A PROPOSED CONSTITUTIONAL AMENDMENT, OR BILL OR RESOLUTION,
DOES NOT FURNISH A FIRM GROUND FOR ITS PROPER CONSTRUCTION, NOR IS IT
IMPORTANT AS EXPLANATORY OF THE GROUNDS UPON WHICH THE MEMBERS VOTED IN
ADOPTING IT."  ID. AT 601-602. 

IN THE TWINING CASE ITSELF, THE COURT WAS CITED TO A THEN RECENT
BOOK, GUTHRIE, FOURTEENTH AMENDMENT TO THE CONSTITUTION (1898).  A FEW
PAGES OF THAT WORK RECITED SOME OF THE LEGISLATIVE BACKGROUND OF THE
AMENDMENT, EMPHASIZING THE SPEECH OF SENATOR HOWARD.  BUT GUTHRIE DID
NOT EMPHASIZE THE SPEECHES OF CONGRESSMAN BINGHAM, NOR THE PART HE
PLAYED IN THE FRAMING AND ADOPTION OF THE FIRST SECTION OF THE
FOURTEENTH AMENDMENT.  YET CONGRESSMAN BINGHAM MAY, WITHOUT
EXTRAVAGANCE, BE CALLED THE MADISON OF THE FIRST SECTION OF THE
FOURTEENTH AMENDMENT.  IN THE TWINING OPINION, THE COURT EXPLICITLY
DECLINED TO GIVE WEIGHT TO THE HISTORICAL DEMONSTRATION THAT THE FIRST
SEVERAL PROTECTIONS OF THE BILL OF RIGHTS.  IT HELD THAT THAT QUESTION
WAS "NO LONGER OPEN" BECAUSE OF PREVIOUS DECISIONS OF THIS COURT WHICH,
HOWEVER, HAD NOT APPRAISED THE HISTORICAL EVIDENCE ON THAT SUBJECT. 
ID. AT 98.  THE COURT ADMITTED THAT ITS ACTION HAD RESULTED IN GIVING
"MUCH LESS EFFECT TO THE FOURTEENTH AMENDMENT THAN SOME OF THE PUBLIC
MEN ACTIVE IN FRAMING IT" HAD INTENDED IT TO HAVE.  ID. AT 96.  WITH
PARTICULAR REFERENCE TO THE GUARANTEE AGAINST COMPELLED TESTIMONY, THE
COURT STATED THAT "MUCH MIGHT BE SAID IN FAVOR OF THE VIEW THAT THE
PRIVILEGE WAS GUARANTEED AGAINST STATE IMPAIRMENT AS A PRIVILEGE AND
IMMUNITY OF NATIONAL CITIZENSHIP, BUT, AS HAS BEEN SHOWN, THE DECISIONS
OF THIS COURT HAVE FORECLOSED THAT VIEW."  ID. AT 113.  THUS THE COURT
DECLINED, AND AGAIN TODAY DECLINES, TO APPRAISE THE RELEVANT HISTORICAL
EVIDENCE OF THE INTENDED SCOPE OF THE FIRST SECTION OF THE AMENDMENT. 
INSTEAD IT RELIED UPON PREVIOUS CASES, NONE OF WHICH HAD ANALYZED THE
EVIDENCE SHOWING THAT ONE PURPOSE OF THOSE WHO FRAMED, ADVOCATED, AND
ADOPTED THE AMENDMENT HAD BEEN TO MAKE THE BILL OF RIGHTS APPLICABLE TO
THE STATES.  NONE OF THE CASES RELIED UPON BY THE COURT TODAY MADE SUCH
AN ANALYSIS. 

FOR THIS REASON, I AM ATTACHING TO THIS DISSENT AN APPENDIX WHICH
CONTAINS A RESUME, BY NO MEANS COMPLETE, OF THE AMENDMENT'S HISTORY. 
IN MY JUDGMENT THAT HISTORY CONCLUSIVELY DEMONSTRATES THAT THE LANGUAGE
OF THE FIRST SECTION OF THE FOURTEENTH AMENDMENT, TAKEN AS A WHOLE, WAS
THOUGHT BY THOSE RESPONSIBLE FOR ITS SUBMISSION TO THE PEOPLE, AND BY
THOSE WHO OPPOSED ITS SUBMISSION, SUFFICIENTLY EXPLICIT TO GUARANTEE
THAT THEREAFTER NO STATE COULD DEPRIVE ITS CITIZENS OF THE PRIVILEGES
AND PROTECTIONS OF THE BILL OF RIGHTS.  WHETHER THIS COURT EVER WILL,
OR WHETHER IT NOW SHOULD, IN THE LIGHT OF PAST DECISIONS, GIVE FULL
EFFECT TO WHAT THE AMENDMENT WAS INTENDED TO ACCOMPLISH IS NOT
NECESSARILY ESSENTIAL TO A DECISION HERE.  HOWEVER THAT MAY BE, OUR
PRIOR DECISIONS, INCLUDING TWINING, DO NOT PREVENT OUR CARRYING OUT
THAT PURPOSE, AT LEAST TO THE EXTENT OF MAKING APPLICABLE TO THE
STATES, NOT A MERE PART, AS THE COURT HAS, BUT THE FULL PROTECTION OF
THE FIFTH AMENDMENT'S PROVISION AGAINST COMPELLING EVIDENCE FROM AN
ACCUSED TO CONVICT HIM OF CRIME.  AND I FURTHER CONTEND THAT THE
"NATURAL LAW" FORMULA WHICH THE COURT USES TO REACH ITS CONCLUSION IN
THIS CASE SHOULD BE ABANDONED AS AN INCONGRUOUS EXCRESCENCE ON OUR
CONSTITUTION.  I BELIEVE THAT FORMULA TO BE ITSELF A VIOLATION OF OUR
CONSTITUTION, IN THAT IT SUBTLY CONVEYS TO COURTS, AT THE EXPENSE OF
LEGISLATURES, ULTIMATE POWER OVER PUBLIC POLICIES IN FIELDS WHERE NO
SPECIFIC PROVISION OF THE CONSTITUTION LIMITS LEGISLATIVE POWER.  AND
MY BELIEF SEEMS TO BE IN ACCORD WITH THE VIEWS EXPRESSED BY THIS COURT,
AT LEAST FOR THE FIRST TWO DECADES AFTER THE FOURTEENTH AMENDMENT WAS
ADOPTED. 

IN 1872, FOUR YEARS AFTER THE AMENDMENT WAS ADOPTED, THE SLAUGHTER
HOUSE CASES CAME TO THIS COURT.  16 WALL 36.  THE COURT WAS NOT
PRESENTED IN THAT CASE WITH THE EVIDENCE WHICH SHOWED THAT THE SPECIAL
SPONSORS OF THE AMENDMENT IN THE HOUSE AND SENATE HAD EXPRESSLY
EXPLAINED ONE OF ITS PRINCIPAL PURPOSES TO BE TO CHANGE THE
CONSTITUTION AS CONSTRUED IN BARRON V. BALTIMORE, SUPRA, AND MAKE THE
BILL OF RIGHTS APPLICABLE TO THE STATES.  FN6  NOR WAS THERE REASON TO
DO SO.  FOR THE STATE LAW UNDER CONSIDERATION IN THE SLAUGHTER-HOUSE
CASES WAS ONLY CHALLENGED AS ONE WHICH AUTHORIZED A MONOPOLY, AND THE
BRIEF FOR THE CHALLENGER PROPERLY CONCEDED THAT THERE WAS "NO DIRECT
CONSTITUTIONAL PROVISION AGAINST A MONOPOLY."  FN7  THE ARGUMENT DID
NOT INVOKE ANY SPECIFIC PROVISION OF THE BILL OF RIGHTS, BUT URGED THAT
THE STATE MONOPOLY STATUTE VIOLATED "THE NATURAL RIGHT OF A PERSON" TO
DO BUSINESS AND ENGAGE IN HIS TRADE OR VOCATION.  ON THIS BASIS, IT WAS
CONTENDED THAT "BULWARKS THAT HAVE BEEN ERECTED AROUND THE INVESTMENTS
OF CAPITAL ARE IMPREGNABLE AGAINST STATE LEGISLATION."  THESE NATURAL
LAW ARGUMENTS, SO SUGGESTIVE OF THE PREMISES ON WHICH THE PRESENT DUE
PROCESS FORMULA RESTS, WERE FLATLY REJECTED BY A MAJORITY OF THE COURT
IN THE SLAUGHTER-HOUSE CASES.  WHAT THE COURT DID HOLD WAS THAT THE
PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT ONLY
PROTECTED FROM STATE INVASION SUCH RIGHTS AS A PERSON HAS BECAUSE HE IS
A CITIZEN OF THE UNITED STATES.  THE COURT ENUMERATED SOME, BUT REFUSED
TO ENUMERATE ALL OF THESE NATIONAL RIGHTS.  THE MAJORITY OF THE COURT
EMPHATICALLY DECLINED THE INVITATION OF COUNSEL TO HOLD THAT THE
FOURTEENTH AMENDMENT SUBJECTED ALL STATE REGULATORY LEGISLATION TO
CONTINUOUS CENSORSHIP BY THIS COURT IN ORDER FOR IT TO DETERMINE
WHETHER IT COLLIDED WITH THIS COURT'S OPINION OF "NATURAL" RIGHT AND
JUSTICE.  IN EFFECT, THE SLAUGHTER-HOUSE CASES REJECTED THE VERY
NATURAL JUSTICE FORMULA THE COURT TODAY EMBRACES.  THE COURT DID NOT
MEET THE QUESTION OF WHETHER THE SAFEGUARDS OF THE BILL OF RIGHTS WERE
PROTECTED AGAINST STATE INVASION BY THE FOURTEENTH AMENDMENT.  AND IT
SPECIFICALLY DID NOT SAY AS THE COURT NOW DOES, THAT PARTICULAR
PROVISIONS OF THE BILL OF RIGHTS COULD BE BREACHED BY STATES IN PART,
BUT NOT BREACHED IN OTHER RESPECTS, ACCORDING TO THIS COURT'S NOTIONS
OF "CIVILIZED STANDARDS," "CANONS OF DECENCY," AND "FUNDAMENTAL
JUSTICE." 

LATER, BUT PRIOR TO THE TWINING CASE, THIS COURT DECIDED THAT THE
FOLLOWING WERE NOT "PRIVILEGES OR IMMUNITIES" OF NATIONAL CITIZENSHIP,
SO AS TO MAKE THEM IMMUNE AGAINST STATE INVASION:  THE EIGHTH
AMENDMENT'S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT, IN RE
KEMMLER, 136 U.S. 436; THE SEVENTH AMENDMENT'S GUARANTEE OF A JURY
TRIAL IN CIVIL CASES, WALKER V. SAUVINET, 92 U.S. 90; THE SECOND
AMENDMENT'S "RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS  ...  ," PRESSER
V. ILLINOIS, 116 U.S. 252; THE FIFTH AND SIXTH AMENDMENTS' REQUIREMENTS
FOR INDICTMENT IN CAPITAL OR OTHER INFAMOUS CRIMES, AND FOR TRIAL BY
JURY IN CRIMINAL PROSECUTIONS, MAXWELL V. DOW, 176 U.S. 581.  WHILE IT
CAN BE ARGUED THAT THESE CASES IMPLIED THAT NO ONE OF THE PROVISIONS OF
THE BILL OF RIGHTS WAS MADE APPLICABLE TO THE STATES AS ATTRIBUTES OF
NATIONAL CITIZENSHIP, NO ONE OF THEM EXPRESSLY SO DECIDED.  IN FACT,
THE COURT IN MAXWELL V. DOW, SUPRA AT 597-598, CONCLUDED NO MORE THAN
THAT "THE PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES DO
NOT NECESSARILY INCLUDE ALL THE RIGHTS PROTECTED BY THE FIRST EIGHT
AMENDMENTS TO THE FEDERAL CONSTITUTION AGAINST THE POWERS OF THE
FEDERAL GOVERNMENT."  CF. PALKO V. CONNECTICUT, 302 U.S. 319, 329. 

AFTER THE SLAUGHTER-HOUSE DECISION, THE COURT ALSO SAID THAT STATES
COULD, DESPITE THE "DUE PROCESS" CLAUSE OF THE FOURTEENTH AMENDMENT,
TAKE PRIVATE PROPERTY WITHOUT JUST COMPENSATION, DAVIDSON V. NEW
ORLEANS, 96 U.S. 97, 105; PUMPELLY V. GREEN BAY CO., 13 WALL., 166, 176
177; ABRIDGE THE FREEDOM OF ASSEMBLY GUARANTEED BY THE FIRST AMENDMENT,
UNITED STATES V. CRUIKSHANK, 92 U.S. 542; SEE ALSO PRUDENTIAL INS. CO.
V. CHEEK, 259 U.S. 530, 543; PATTERSON V. COLORADO, 205 U.S. 454; CF.
GITLOW V. NEW YORK, 268 U.S. 652, 666(FREEDOM OF SPEECH); PROSECUTE FOR
CRIME BY INFORMATION RATHER THAN INDICTMENT, HURTADO V. PEOPLE OF
CALIFORNIA, 110 U.S. 516; REGULATE THE PRICE FOR STORAGE OF GRAIN IN
WAREHOUSES AND ELEVATORS, MUNN V. ILLINOIS, 94 U.S. 113.  BUT THIS
COURT ALSO HELD IN A NUMBER OF CASES THAT COLORED PEOPLE MUST, BECAUSE
OF THE FOURTEENTH AMENDMENT, BE ACCORDED EQUAL PROTECTION OF THE LAWS. 
SEE, E.G., STRAUDER V. WEST VIRGINIA, 100 U.S. 303; CF. VIRGINIA V.
RIVES, 100 U.S. 313; SEE ALSO YICK WO V. HOPKINS, 118 U.S. 356. 

THUS, UP TO AND FOR SOME YEARS AFTER 1873, WHEN MUNN V. ILLINOIS,
SUPRA, WAS DECIDED, THIS COURT STEADFASTLY DECLINED TO INVALIDATE
STATES' LEGISLATIVE REGULATION OF PROPERTY RIGHTS OR BUSINESS PRACTICES
UNDER THE FOURTEENTH AMENDMENT UNLESS THERE WERE RACIAL DISCRIMINATION
INVOLVED IN THE STATE LAW CHALLENGED.  THE FIRST SIGNIFICANT BREACH IN
THIS POLICY CAME IN 1889, IN CHICAGO, M. & ST. P.R. CO. V. MINNESOTA,
134 U.S. 418.  FN8  A STATE'S RAILROAD RATE REGULATORY STATUTE WAS
THERE STRICKEN AS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  THIS WAS ACCOMPLISHED BY REFERENCE TO A DUE PROCESS FORMULA
WHICH DID NOT NECESSARILY OPERATE SO AS TO PROTECT THE BILL OF RIGHTS'
PERSONAL LIBERTY SAFEGUARDS, BUT WHICH GAVE A NEW AND HITHERTO
UNDISCOVERED SCOPE FOR THE COURT'S USE OF THE DUE PROCESS CLAUSE TO
PROTECT PROPERTY RIGHTS UNDER NATURAL LAW CONCEPTS.  AND IN 1896, IN
CHICAGO, B. & Q.R. CO. V. CHICAGO, 166 U.S. 226, THIS COURT, IN EFFECT,
OVERRULED DAVIDSON V. NEW ORLEANS, SUPRA, BY HOLDING, UNDER THE NEW DUE
PROCESS-NATURAL LAW FORMULA, THAT THE FOURTEENTH AMENDMENT FORBADE A
STATE FROM TAKING PRIVATE PROPERTY FOR PUBLIC USE WITHOUT PAYMENT OF
JUST COMPENSATION.  FN9 

FOLLOWING THE PATTERN OF THE NEW DOCTRINE FORMALIZED IN THE FOREGOING
DECISIONS, THE COURT IN 1896 APPLIED THE DUE PROCESS CLAUSE TO STRIKE
DOWN A STATE STATUTE WHICH HAD FORBIDDEN CERTAIN TYPES OF CONTRACTS. 
ALLGEYER V. LOUISIANA, 165 U.S. 578.  CF. HOOPESTON CANNING CO. V.
CULLEN, 318 U.S. 313, 316, 318-319.  IN DOING SO, IT SUBSTANTIALLY
ADOPTED THE REJECTED ARGUMENT OF COUNSEL IN THE SLAUGHTER-HOUSE CASES,
THAT THE FOURTEENTH AMENDMENT GUARANTEES THE LIBERTY OF ALL PERSONS
UNDER "NATURAL LAW" TO ENGAGE IN THEIR CHOSEN BUSINESS OR VOCATION.  IN
THE ALLGEYER OPINION, ID. AT 589, THE COURT QUOTED WITH APPROVAL THE
CONCURRING OPINION OF MR. JUSTICE BRADLEY IN A SECOND SLAUGHTER-HOUSE
CASE, BUTCHERS' UNION CO. V. CRESCENT CITY CO., 111 U.S. 746, 762, 764,
765, WHICH CLOSELY FOLLOWED ONE PHASE OF THE ARGUMENT OF HIS DISSENT IN
THE ORIGINAL SLAUGHTER-HOUSE CASES - NOT THAT PHASE WHICH ARGUED THAT
THE BILL OF RIGHTS WAS APPLICABLE TO THE STATES.  AND IN 1905, THREE
YEARS BEFORE THE TWINING CASE, LOCHNER V. NEW YORK, 198 U.S. 45,
FOLLOWED THE ARGUMENT USED IN ALLGEYER TO HOLD THAT THE DUE PROCESS
CLAUSE WAS VIOLATED BY A STATE STATUTE WHICH LIMITED THE EMPLOYMENT OF
BAKERY WORKERS TO SIXTY HOURS PER WEEK AND TEN HOURS PER DAY. 

THE FOREGOING CONSTITUTIONAL DOCTRINE, JUDICIALLY CREATED AND ADOPTED
BY EXPANDING THE PREVIOUSLY ACCEPTED MEANING OF "DUE PROCESS," MARKED A
COMPLETE DEPARTURE FROM THE SLAUGHTER-HOUSE PHILOSOPHY OF JUDICIAL
TOLERANCE OF STATE REGULATION OF BUSINESS ACTIVITIES.  CONVERSELY, THE
NEW FORMULA CONTRACTED THE EFFECTIVENESS OF THE FOURTEENTH AMENDMENT AS
A PROTECTION FROM STATE INFRINGEMENT OF INDIVIDUAL LIBERTIES ENUMERATED
IN THE BILL OF RIGHTS.  THUS THE COURT'S SECOND-THOUGHT INTERPRETATION
OF THE AMENDMENT WAS AN ABOUT-FACE FROM THE SLAUGHTER-HOUSE
INTERPRETATION AND REPRESENTED A FAILURE TO CARRY OUT THE AVOWED
PURPOSE OF THE AMENDMENT'S SPONSORS.  FN10  THIS REVERSAL IS DRAMATIZED
BY THE FACT THAT THE HURTADO CASE, WHICH HAD REJECTED THE DUE PROCESS
CLAUSE AS AN INSTRUMENT FOR PRESERVING BILL OF RIGHTS LIBERTIES AND
PRIVILEGES, WAS CITED AS AUTHORITY FOR EXPANDING THE SCOPE OF THAT
CLAUSE SO AS TO PERMIT THIS COURT TO INVALIDATE ALL STATE REGULATORY
LEGISLATION IT BELIEVED TO BE CONTRARY TO "FUNDAMENTAL" PRINCIPLES. 

THE TWINING DECISION, REJECTING THE COMPELLED TESTIMONY CLAUSE OF THE
FIFTH AMENDMENT, AND INDEED REJECTING ALL THE BILL OF RIGHTS, IS THE
END PRODUCT OF ONE PHASE OF THIS PHILOSOPHY.  AT THE SAME TIME, THAT
DECISION CONSOLIDATED THE POWER OF THE COURT ASSUMED IN PAST CASES BY
LAYING BROADER FOUNDATIONS FOR THE COURT TO INVALIDATE STATE AND EVEN
FEDERAL REGULATORY LEGISLATION.  FOR THE TWINING DECISION, GIVING
SEPARATE CONSIDERATION TO "DUE PROCESS" AND "PRIVILEGES OR IMMUNITIES,"
WENT ALL THE WAY TO SAY THAT THE "PRIVILEGES OR IMMUNITIES" CLAUSE OF
THE FOURTEENTH AMENDMENT "DID NOT FORBID THE STATES TO ABRIDGE THE
PERSONAL RIGHTS ENUMERATED IN THE FIRST EIGHT AMENDMENTS  ...  "
TWINING V. NEW JERSEY, SUPRA, 99.  AND IN ORDER TO BE CERTAIN, SO FAR
AS POSSIBLE, TO LEAVE THIS COURT WHOLLY FREE TO REJECT ALL THE BILL OF
RIGHTS AS SPECIFIC RESTRAINTS UPON STATE ACTION, THE DECISION DECLARED
THAT EVEN IF THIS COURT SHOULD DECIDE THAT THE DUE PROCESS CLAUSE
FORBIDS THE STATES TO INFRINGE PERSONAL LIBERTIES GUARANTEED BY THE
BILL OF RIGHTS, IT WOULD DO SO, NOT "BECAUSE THOSE RIGHTS ARE
ENUMERATED IN THE FIRST EIGHT AMENDMENTS, BUT BECAUSE THEY ARE OF SUCH
A NATURE THAT THEY ARE INCLUDED IN THE CONCEPTION OF DUE PROCESS OF
LAW."  IBID. 

AT THE SAME TIME THAT THE TWINING DECISION HELD THAT THE STATES NEED
NOT CONFORM TO THE SPECIFIC PROVISIONS OF THE BILL OF RIGHTS, IT
CONSOLIDATED THE POWER THAT THE COURT HAD ASSUMED UNDER THE DUE PROCESS
CLAUSE BY LAYING EVEN BROADER FOUNDATIONS FOR THE COURT TO INVALIDATE
STATE AND EVEN FEDERAL REGULATORY LEGISLATION.  FOR UNDER THE TWINING
FORMULA, WHICH INCLUDES NON-REGARD FOR THE FIRST EIGHT AMENDMENTS, WHAT
ARE "FUNDAMENTAL RIGHTS" AND IN ACCORD WITH "CANONS OF DECENCY," AS THE
COURT SAID IN TWINING, AND TODAY REAFFIRMS, IS TO BE INDEPENDENTLY
"ASCERTAINED FROM TIME TO TIME BY JUDICIAL ACTION  ...  "  ID. AT 101;
"WHAT IS DUE PROCESS OF LAW DEPENDS ON CIRCUMSTANCES."  MOYER V.
PEABODY, 212 U.S. 78, 84.  THUS THE POWER OF LEGISLATURES BECAME WHAT
THIS COURT WOULD DECLARE IT TO BE AT A PARTICULAR TIME INDEPENDENTLY OF
THE SPECIFIC GUARANTEES OF THE BILL OF RIGHTS SUCH AS THE RIGHT TO
FREEDOM OF SPEECH, RELIGION AND ASSEMBLY, THE RIGHT TO JUST
COMPENSATION FOR PROPERTY TAKEN FOR A PUBLIC PURPOSE, THE RIGHT TO JURY
TRIAL OR THE RIGHT TO BE SECURE AGAINST UNREASONABLE SEARCHES AND
SEIZURES.  NEITHER THE CONTRACTION OF THE BILL OF RIGHTS SAFEGUARDS
FN11  NOR THE INVALIDATION OF REGULATORY LAWS  FN12  BY THIS COURT'S
APPRAISAL OF "CIRCUMSTANCES" WOULD READILY BE CLASSIFIED AS THE MOST
SATISFACTORY CONTRIBUTION OF THIS COURT TO THE NATION.  IN 1912, FOUR
YEARS AFTER THE TWINING CASE WAS DECIDED, A BOOK WRITTEN BY MR. CHARLES
WALLACE COLLINS GAVE THE HISTORY OF THIS COURT'S INTERPRETATION AND
APPLICATION OF THE FOURTEENTH AMENDMENT UP TO THAT TIME.  IT IS NOT
NECESSARY FOR ONE FULLY TO AGREE WITH ALL HE SAID IN ORDER TO
APPRECIATE THE SENTIMENT OF THE FOLLOWING COMMENT CONCERNING THE
DISAPPOINTMENTS CAUSED BY THIS COURT'S INTERPRETATION OF THE
AMENDMENT. 

"  ...  IT WAS AIMED AT RESTRAINING AND CHECKING THE POWERS OF WEALTH
AND PRIVILEGE.  IT WAS TO BE A CHARTER OF LIBERTY FOR HUMAN RIGHTS
AGAINST PROPERTY RIGHTS.  THE TRANSFORMATION HAS BEEN RAPID AND
COMPLETE.  IT OPERATES TO-DAY TO PROTECT THE RIGHTS OF PROPERTY TO THE
DETRIMENT OF THE RIGHTS OF MAN.  IT HAS BECOME THE MAGNA CHARTA OF
ACCUMULATED AND ORGANIZED CAPITAL."  COLLINS, THE FOURTEENTH AMENDMENT
AND THE STATES, (1912) 137-8. 

THAT THIS FEELING WAS SHARED, AT LEAST IN PART, BY MEMBERS OF THIS
COURT IS REVEALED BY THE VIGOROUS DISSENTS THAT HAVE BEEN WRITTEN IN
ALMOST EVERY CASE WHERE THE TWINING AND HURTADO DOCTRINES HAVE BEEN
APPLIED TO INVALIDATE STATE REGULATORY LAWS.  FN13 

LATER DECISIONS OF THIS COURT HAVE COMPLETELY UNDERMINED THAT PHASE
OF THE TWINING DOCTRINE WHICH BROADLY PRECLUDED RELIANCE ON THE BILL OF
RIGHTS TO DETERMINE WHAT IS AND WHAT IS NOT A "FUNDAMENTAL" RIGHT. 
LATER CASES HAVE ALSO MADE THE HURTADO CASE AN INADEQUATE SUPPORT FOR
THIS PHASE OF THE TWINING FORMULA.  FOR DESPITE HURTADO AND TWINING,
THIS COURT HAS NOW HELD THAT THE FOURTEENTH AMENDMENT PROTECTS FROM
STATE INVASION THE FOLLOWING "FUNDAMENTAL" RIGHTS SAFEGUARDED BY THE
BILL OF RIGHTS:  RIGHT TO COUNSEL IN CRIMINAL CASES, POWELL V. ALABAMA,
287 U.S. 45, 67, LIMITING THE HURTADO CASE; SEE ALSO BETTS V. BRADY,
316 U.S. 455, AND DE MEERLEER V. MICHIGAN, 329 U.S. 663; FREEDOM OF
ASSEMBLY, DE JONGE V. OREGON, 299 U.S. 353, 364; AT THE VERY LEAST,
CERTAIN TYPES OF CRUEL AND UNUSUAL PUNISHMENT AND FORMER JEOPARDY,
STATE OF LOUISIANA EX REL. FRANCIS V. RESWEBER, 329 U.S. 459; THE RIGHT
OF AN ACCUSED IN A CRIMINAL CASE TO BE INFORMED OF THE CHARGE AGAINST
HIM, SEE SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105; THE RIGHT TO
RECEIVE JUST COMPENSATION ON ACCOUNT OF TAKING PRIVATE PROPERTY FOR
PUBLIC USE, CHICAGO, B. & Q.R. CO. V. CHICAGO, 166 U.S. 226.  AND THE
COURT HAS NOW THROUGH THE FOURTEENTH AMENDMENT LITERALLY AND
EMPHATICALLY APPLIED THE FIRST AMENDMENT TO THE STATES IN ITS VERY
TERMS.  EVERSON V. BOARD OF EDUCATION, 330 U.S. 1; BOARD OF EDUCATION
V. BARNETTE, 319 U.S. 624, 639; BRIDGES V. CALIFORNIA, 314 U.S. 252,
268. 

IN PALKO V. CONNECTICUT, SUPRA, A CASE WHICH INVOLVED FORMER JEOPARDY
ONLY, THIS COURT RE-EXAMINED THE PATH IT HAD TRAVELED IN INTERPRETING
THE FOURTEENTH AMENDMENT SINCE THE TWINING OPINION WAS WRITTEN.  IN
TWINING THE COURT HAD DECLARED THAT NONE OF THE RIGHTS ENUMERATED IN
THE FIRST EIGHT AMENDMENTS WERE PROTECTED AGAINST STATE INVASION
BECAUSE THEY WERE INCORPORATED IN THE BILL OF RIGHTS.  BUT THE COURT IN
PALKO, SUPRA, AT 323, ANSWERED A CONTENTION THAT ALL EIGHT APPLIED WITH
THE MORE GUARDED STATEMENT, SIMILAR TO THAT THE COURT HAD USED IN
MAXWELL V. DOW, SUPRA AT 597, THAT "THERE IS NO SUCH GENERAL RULE." 
IMPLICIT IN THIS STATEMENT, AND IN THE CASES DECIDED IN THE INTERIM
BETWEEN TWINING AND PALKO AND SINCE, IS THE UNDERSTANDING THAT SOME OF
THE EIGHT AMENDMENTS DO APPLY BY THEIR VERY TERMS.  THUS THE COURT SAID
IN THE PALKO CASE THAT THE FOURTEENTH AMENDMENT MAY MAKE IT UNLAWFUL
FOR A STATE TO ABRIDGE BY ITS STATUTES THE "FREEDOM OF SPEECH WHICH THE
FIRST AMENDMENT SAFEGUARDS AGAINST ENCROACHMENT BY THE CONGRESS  ...
OR THE LIKE FREEDOM OF THE PRESS  ...  OR THE FREE EXERCISE OF RELIGION
...  , OR THE RIGHT OF PEACEABLE ASSEMBLY  ...  OR THE RIGHT OF ONE
ACCUSED OF CRIME TO THE BENEFIT OF COUNSEL  ...  IN THESE AND OTHER
SITUATIONS IMMUNITIES THAT ARE VALID AS AGAINST THE FEDERAL GOVERNMENT
BY FORCE OF THE SPECIFIC PLEDGES OF PARTICULAR AMENDMENTS HAVE BEEN
FOUND TO BE IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY, AND THUS,
THROUGH THE FOURTEENTH AMENDMENT, BECOME VALID AS AGAINST THE STATES." 
ID. AT 324-325.  THE COURT WENT ON TO DESCRIBE THE AMENDMENTS MADE
APPLICABLE TO THE STATES AS "THE PRIVILEGES AND IMMUNITIES THAT HAVE
BEEN TAKEN OVER FROM THE EARLIER ARTICLES OF THE FEDERAL BILL OF RIGHTS
AND BROUGHT WITHIN THE FOURTEENTH AMENDMENT BY A PROCESS OF
ABSORPTION."  ID. AT 326.  IN THE TWINING CASE FUNDAMENTAL LIBERTIES
WERE THINGS APART FROM THE BILL OF RIGHTS.  NOW IT APPEARS THAT AT
LEAST SOME OF THE PROVISIONS OF THE BILL OF RIGHTS IN THEIR VERY TERMS
SATISFY THE COURT AS SOUND AND MEANINGFUL EXPRESSIONS OF FUNDAMENTAL
LIBERTY.  IF THE FIFTH AMENDMENT'S PROTECTION AGAINST SELF
INCRIMINATION BE SUCH AN EXPRESSION OF FUNDAMENTAL LIBERTY, I ASK, AND
HAVE NOT FOUND A SATISFACTORY ANSWER, WHY THE COURT TODAY SHOULD
CONSIDER THAT IT SHOULD BE "ABSORBED" IN PART BUT NOT IN FULL?  CF.
WARREN, THE NEW "LIBERTY" UNDER THE FOURTEENTH AMENDMENT, 39 HARV. L.
REV. 431, 458-461(1926).  NOTHING IN THE PALKO OPINION REQUIRES THAT
WHEN THE COURT DECIDES THAT A BILL OF RIGHTS' PROVISION IS TO BE
APPLIED TO THE STATES, IT IS TO BE APPLIED PIECEMEAL.  NOTHING IN THE
PALKO OPINION RECOMMENDS THAT THE COURT APPLY PART OF AN AMENDMENT'S
ESTABLISHED MEANING AND DISCARD THAT PART WHICH DOES NOT SUIT THE
CURRENT STYLE OF FUNDAMENTALS. 

THE COURT'S OPINION IN TWINING, AND THE DISSENT IN THAT CASE, MADE IT
CLEAR THAT THE COURT INTENDED TO LEAVE THE STATES WHOLLY FREE TO COMPEL
CONFESSIONS, SO FAR AS THE FEDERAL CONSTITUTION IS CONCERNED.  TWINING
V. NEW JERSEY, SUPRA, SEE PARTICULARLY PP. 111-114, 125-126.  YET IN A
SERIES OF CASES SINCE TWINING THIS COURT HAS HELD THAT THE FOURTEENTH
AMENDMENT DOES BAR ALL AMERICAN COURTS, STATE OR FEDERAL, FROM
CONVICTING PEOPLE OF CRIME ON COERCED CONFESSIONS.  CHAMBERS V.
FLORIDA, 309 U.S. 227; ASHCRAFT V. TENNESSEE, 322 U.S. 143, 154-155,
AND CASES CITED.  FEDERAL COURTS CANNOT DO SO BECAUSE OF THE FIFTH
AMENDMENT.  BRAM V. UNITED STATES, 168 U.S. 532, 542, 562-563.  AND
STATE COURTS CANNOT DO SO BECAUSE THE PRINCIPLES OF THE FIFTH AMENDMENT
ARE MADE APPLICABLE TO THE STATES THROUGH THE FOURTEENTH BY ONE FORMULA
OR ANOTHER.  AND TAKING NOTE OF THESE CASES, THE COURT IS CAREFUL TO
POINT OUT IN ITS DECISION TODAY THAT COERCED CONFESSIONS VIOLATE THE
FEDERAL CONSTITUTION IF SECURED "BY FEAR OF HURT, TORTURE OR
EXHAUSTION."  NOR CAN A STATE, ACCORDING TO TODAY'S DECISION,
CONSTITUTIONALLY COMPEL AN ACCUSED TO TESTIFY AGAINST HIMSELF BY "ANY
OTHER TYPE OF COERCION THAT FALLS WITHIN THE SCOPE OF DUE PROCESS." 
THUS THE COURT ITSELF DESTROYS OR AT LEAST DRASTICALLY CURTAILS THE
VERY TWINING DECISION IT PURPORTS TO REAFFIRM.  IT REPUDIATES THE
FOUNDATION OF THAT OPINION, WHICH PRESENTED MUCH ARGUMENT TO SHOW THAT
COMPELLING A MAN TO TESTIFY AGAINST HIMSELF DOES NOT "VIOLATE" A
"FUNDAMENTAL" RIGHT OR PRIVILEGE. 

IT SEEMS RATHER PLAIN TO ME WHY THE COURT TODAY DOES NOT ATTEMPT TO
JUSTIFY ALL OF THE BROAD TWINING DISCUSSION.  THAT OPINION CARRIES ITS
OWN REFUTATION ON WHAT MAY BE CALLED THE FACTUAL ISSUE THE COURT
RESOLVED.  THE OPINION ITSELF SHOWS, WITHOUT RESORT TO THE POWERFUL
ARGUMENT IN THE DISSENT OF MR. JUSTICE HARLAN, THAT OUTSIDE OF STAR
CHAMBER PRACTICES AND INFLUENCES, THE "ENGLISH-SPEAKING" PEOPLES HAVE
FOR CENTURIES ABHORRED AND FEARED THE PRACTICE OF COMPELLING PEOPLE TO
CONVICT THEMSELVES OF CRIME.  I SHALL NOT ATTEMPT TO NARRATE THE
REASONS.  THEY ARE WELL KNOWN AND THOSE INTERESTED CAN READ THEM IN
BOTH THE MAJORITY AND DISSENTING OPINIONS IN THE TWINING CASE, IN BOYD
V. UNITED STATES, 116 U.S. 616, AND IN THE CASES CITED IN NOTES 8, 9,
10, AND 11 OF ASHCRAFT V. TENNESSEE, SUPRA.  NOR DOES THE HISTORY OF
THE PRACTICE OF COMPELLING TESTIMONY IN THIS COUNTRY, RELIED ON IN THE
TWINING OPINION, SUPPORT THE DEGRADED RANK WHICH THAT OPINION GAVE THE
FIFTH AMENDMENT'S PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION.  I
THINK THE HISTORY THERE RECITED BY THE COURT BELIES ITS CONCLUSION. 

THE COURT IN TWINING EVIDENTLY WAS FORCED TO RESORT FOR ITS
DEGRADATION OF THE PRIVILEGE TO THE FACT THAT GOVERNOR WINTHROP IN
TRYING MRS. ANNE HUTCHINSON IN 1627 WAS EVIDENTLY "NOT AWARE OF ANY
PRIVILEGE AGAINST SELF-INCRIMINATION OR CONSCIOUS OF ANY DUTY TO
RESPECT IT."  ID. AT 103-104.  OF COURSE NOT.  FN14  MRS. HUTCHINSON
WAS TRIED, IF TRIAL IT CAN BE CALLED, FOR HOLDING UNORTHODOX RELIGIOUS
VIEWS.  FN15  PEOPLE WITH A CONSUMING BELIEF THAT THEIR RELIGIOUS
CONVICTIONS MUST BE FORCED ON OTHERS RARELY EVER BELIEVE THAT THE
UNORTHODOX HAVE ANY RIGHTS WHICH SHOULD OR CAN BE RIGHTFULLY
RESPECTED.  AS A RESULT OF HER TRIAL AND COMPELLED ADMISSIONS, MRS.
HUTCHINSON WAS FOUND GUILTY OF UNORTHODOXY AND BANISHED FROM
MASSACHUSETTS.  THE LAMENTABLE EXPERIENCE OF MRS. HUTCHINSON AND
OTHERS, CONTRIBUTED TO THE OVERWHELMING SENTIMENT THAT DEMANDED
ADOPTION OF A CONSTITUTIONAL BILL OF RIGHTS.  THE FOUNDERS OF THIS
GOVERNMENT WANTED NO MORE SUCH "TRIALS" AND PUNISHMENTS AS MRS.
HUTCHINSON HAD TO UNDERGO.  THEY WANTED TO ERECT BARRIERS THAT WOULD
BAR LEGISLATORS FROM PASSING LAWS THAT ENCROACHED ON THE DOMAIN OF
BELIEF, AND THAT WOULD, AMONG OTHER THINGS, STRIP COURTS AND ALL PUBLIC
OFFICERS OF A POWER TO COMPEL PEOPLE TO TESTIFY AGAINST THEMSELVES. 
SEE PITTMAN, SUPRA AT 789. 

I CANNOT CONSIDER THE BILL OF RIGHTS TO BE AN OUTWORN 18TH CENTURY
"STRAIT JACKET" AS THE TWINING OPINION DID.  ITS PROVISIONS MAY BE
THOUGHT OUTDATED ABSTRACTIONS BY SOME.  AND IT IS TRUE THAT THEY WERE
DESIGNED TO MEET ANCIENT EVILS.  BUT THEY ARE THE SAME KIND OF HUMAN
EVILS THAT HAVE EMERGED FROM CENTURY TO CENTURY WHEREVER EXCESSIVE
POWER IS SOUGHT BY THE FEW AT THE EXPENSE OF THE MANY.  IN MY JUDGMENT
THE PEOPLE OF NO NATION CAN LOSE THEIR LIBERTY SO LONG AS A BILL OF
RIGHTS LIKE OURS SURVIVES AND ITS BASIC PURPOSES ARE CONSCIENTIOUSLY
INTERPRETED, ENFORCED AND RESPECTED SO AS TO AFFORD CONTINUOUS
PROTECTION AGAINST OLD, AS WELL AS NEW, DEVICES AND PRACTICES WHICH
MIGHT THWART THOSE PURPOSES.  I FEAR TO SEE THE CONSEQUENCES OF THE
COURT'S PRACTICE OF SUBSTITUTING ITS OWN CONCEPTS OF DECENCY AND
FUNDAMENTAL JUSTICE FOR THE LANGUAGE OF THE BILL OF RIGHTS AS ITS POINT
OF DEPARTURE IN INTERPRETING AND ENFORCING THAT BILL OF RIGHTS.  IF THE
CHOICE MUST BE BETWEEN THE SELECTIVE PROCESS OF THE PALKO DECISION
APPLYING SOME OF THE BILL OF RIGHTS TO THE STATES, OR THE TWINING RULE
APPLYING NONE OF THEM, I WOULD CHOOSE THE PALKO SELECTIVE PROCESS.  BUT
RATHER THAN ACCEPT EITHER OF THESE CHOICES, I WOULD FOLLOW WHAT I
BELIEVE WAS THE ORIGINAL PURPOSE OF THE FOURTEENTH AMENDMENT - TO
EXTEND TO ALL THE PEOPLE OF THE NATION THE COMPLETE PROTECTION OF THE
BILL OF RIGHTS.  TO HOLD THAT THIS COURT CAN DETERMINE WHAT, IF ANY,
PROVISIONS OF THE BILL OF RIGHTS WILL BE ENFORCED, AND IF SO TO WHAT
DEGREE, IS TO FRUSTRATE THE GREAT DESIGN OF A WRITTEN CONSTITUTION. 

CONCEDING THE POSSIBILITY THAT THIS COURT IS NOW WISE ENOUGH TO
IMPROVE ON THE BILL OF RIGHTS BY SUBSTITUTING NATURAL LAW CONCEPTS FOR
THE BILL OF RIGHTS, I THINK THE POSSIBILITY IS ENTIRELY TOO SPECULATIVE
TO AGREE TO TAKE THAT COURSE.  I WOULD THEREFORE HOLD IN THIS CASE THAT
THE FULL PROTECTION OF THE FIFTH AMENDMENT'S PROSCRIPTION AGAINST
COMPELLED TESTIMONY MUST BE AFFORDED BY CALIFORNIA.  THIS I WOULD DO
BECAUSE OF RELIANCE UPON THE ORIGINAL PURPOSE OF THE FOURTEENTH
AMENDMENT. 

IT IS AN ILLUSORY APPREHENSION THAT LITERAL APPLICATION OF SOME OR
ALL OF THE PROVISIONS OF THE BILL OF RIGHTS TO THE STATES WOULD
UNWISELY INCREASE THE SUM TOTAL OF THE POWERS OF THIS COURT TO
INVALIDATE STATE LEGISLATION.  THE FEDERAL GOVERNMENT HAS NOT BEEN
HARMFULLY BURDENED BY THE REQUIREMENT THAT ENFORCEMENT OF FEDERAL LAWS
AFFECTING CIVIL LIBERTY CONFORM LITERALLY TO THE BILL OF RIGHTS.  WHO
WOULD ADVOCATE ITS REPEAL?  IT MUST BE CONCEDED, OF COURSE, THAT THE
NATURAL-LAW-DUE-PROCESS FORMULA, WHICH THE COURT TODAY REAFFIRMS, HAS
BEEN INTERPRETED TO LIMIT SUBSTANTIALLY THIS COURT'S POWER TO PREVENT
STATE VIOLATIONS OF THE INDIVIDUAL CIVIL LIBERTIES GUARANTEED BY THE
BILL OF RIGHTS.  FN16  BUT THIS FORMULA ALSO HAS BEEN USED IN THE PAST,
AND CAN BE USED IN THE FUTURE, TO LICENSE THIS COURT, IN CONSIDERING
REGULATORY LEGISLATION, TO ROAM AT LARGE IN THE BROAD EXPANSES OF
POLICY AND MORALS AND TO TRESPASS, ALL TOO FREELY, ON THE LEGISLATIVE
DOMAIN OF THE STATES AS WELL AS THE FEDERAL GOVERNMENT. 

SINCE MARBURY V. MADISON, 1 CRANCH 137, WAS DECIDED, THE PRACTICE HAS
BEEN FIRMLY ESTABLISHED, FOR BETTER OR WORSE, THAT COURTS CAN STRIKE
DOWN LEGISLATIVE ENACTMENTS WHICH VIOLATE THE CONSTITUTION.  THIS
PROCESS, OF COURSE, INVOLVES INTERPRETATION, AND SINCE WORDS CAN HAVE
MANY MEANINGS, INTERPRETATION OBVIOUSLY MAY RESULT IN CONTRACTION OR
EXTENSION OF THE ORIGINAL PURPOSE OF A CONSTITUTIONAL PROVISION,
THEREBY AFFECTING POLICY.  BUT TO PASS UPON THE CONSTITUTIONALITY OF
STATUTES BY LOOKING TO THE PARTICULAR STANDARDS ENUMERATED IN THE BILL
OF RIGHTS AND OTHER PARTS OF THE CONSTITUTION IS ONE THING; FN17  TO
INVALIDATE STATUTES BECAUSE OF APPLICATION OF "NATURAL LAW" DEEMED TO
BE ABOVE AND UNDEFINED BY THE CONSTITUTION IS ANOTHER.  FN18  "IN THE
ONE INSTANCE, COURTS PROCEEDING WITHIN CLEARLY MARKED CONSTITUTIONAL
BOUNDARIES SEEK TO EXECUTE POLICIES WRITTEN INTO THE CONSTITUTION; IN
THE OTHER, THEY ROAM AT WILL IN THE LIMITLESS AREA OF THEIR OWN BELIEFS
AS TO REASONABLENESS AND ACTUALLY SELECT POLICIES, A RESPONSIBILITY
WHICH THE CONSTITUTION ENTRUSTS TO THE LEGISLATIVE REPRESENTATIVES OF
THE PEOPLE."  FEDERAL POWER COMMISSION V. PIPELINE CO., 315 U.S. 575,
599, 601, N. 4. 

FN1  THE CASES ON WHICH THE COURT RELIES SEEM TO ADOPT THESE
STANDARDS.  MALINSKI V. NEW YORK, 324 U.S. 401, CONCURRING OPINION, 412
417; BUCHALTER V. NEW YORK, 319 U.S. 427, 429; HEBERT V. LOUISIANA, 272
U.S. 312, 316. 

FN2  "THE QUESTION IN THE CASE AT BAR HAS BEEN TWICE BEFORE US, AND
BEEN LEFT UNDECIDED, AS THE CASES WERE DISPOSED OF ON OTHER GROUNDS." 
TWINING V. NEW JERSEY, SUPRA, 92.  IN PALKO V. CONNECTICUT, 302 U.S.
319, RELIED ON BY THE COURT, THE ISSUE WAS DOUBLE JEOPARDY AND NOT
ENFORCED SELF-INCRIMINATION. 

FN3  THE FIFTH AMENDMENT REQUIRES INDICTMENT BY A GRAND JURY IN MANY
CRIMINAL TRIALS, PROHIBITS DOUBLE JEOPARDY, SELF INCRIMINATION,
DEPRIVATION OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW OR
THE TAKING OF PROPERTY FOR PUBLIC USE WITHOUT JUST COMPENSATION. 

THE SIXTH AMENDMENT GUARANTEES TO ONE ACCUSED OF CRIME A SPEEDY,
PUBLIC TRIAL BEFORE AN IMPARTIAL JURY OF THE DISTRICT WHERE THE CRIME
WAS ALLEGEDLY COMMITTED; IT REQUIRES THAT THE ACCUSED BE INFORMED OF
THE NATURE OF THE CHARGE AGAINST HIM, CONFRONTED WITH THE WITNESSES
AGAINST HIM, HAVE COMPULSORY PROCESS TO OBTAIN WITNESSES IN HIS FAVOR,
AND ASSISTANCE OF COUNSEL. 

THE EIGHTH AMENDMENT PROHIBITS EXCESSIVE BAIL, FINES AND CRUEL AND
UNUSUAL PUNISHMENTS. 

FN4  SEE APPENDIX, INFRA, PP. 97-98. 

FN5  ANOTHER PRIME PURPOSE WAS TO MAKE COLORED PEOPLE CITIZENS
ENTITLED TO FULL EQUAL RIGHTS AS CITIZENS DESPITE WHAT THIS COURT
DECIDED IN THE DRED SCOTT CASE.  SCOTT V. SANDFORD, 19 HOW.  393. 

A COMPREHENSIVE ANALYSIS OF THE HISTORICAL ORIGINS OF THE FOURTEENTH
AMENDMENT, FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908) 94,
CONCLUDES THAT "CONGRESS, THE HOUSE AND THE SENATE, HAD THE FOLLOWING
OBJECTS AND MOTIVES IN VIEW FOR SUBMITTING THE FIRST SECTION OF THE
FOURTEENTH AMENDMENT TO THE STATES FOR RATIFICATION: 

"1.  TO MAKE THE BILL OF RIGHTS (THE FIRST EIGHT AMENDMENTS) BINDING
UPON, OR APPLICABLE TO, THE STATES. 

"2.  TO GIVE VALIDITY TO THE CIVIL RIGHTS BILL. 

"3.  TO DECLARE WHO WERE CITIZENS OF THE UNITED STATES." 

FN6  IT IS NOTEWORTHY THAT BEFORE THE TWINING DECISION JUSTICES
BRADLEY, FIELD, SWAYNE, HARLAN, AND APPARENTLY BREWER, ALTHOUGH THEY
HAD NOT BEEN PRESENTED WITH AND DID NOT RELY UPON A DOCUMENTED HISTORY
OF THE FOURTEENTH AMENDMENT SUCH AS IS SET OUT IN THE APPENDIX, INFRA,
NEVERTHELESS DISSENTED FROM THE VIEW THAT THE FOURTEENTH AMENDMENT DID
NOT MAKE PROVISIONS OF THE BILL OF RIGHTS APPLICABLE TO THE STATES.  IN
THE ATTACHED APPENDIX (AT PP. 120-123) I HAVE REFERRED TO SOME CASES
EVIDENCING THEIR VIEWS, AND SET OUT SOME EXPRESSIONS OF ITS. 

A CONTEMPORARY COMMENT ILLUSTRATES THAT THE SLAUGHTER-HOUSE
INTERPRETATION OF THE FOURTEENTH AMENDMENT WAS MADE WITHOUT FULL REGARD
FOR THE CONGRESSIONAL PURPOSE OR POPULAR UNDERSTANDING. 

"IT MUST BE ADMITTED THAT THE CONSTRUCTION PUT UPON THE LANGUAGE OF
THE FIRST SECTION OF THIS AMENDMENT BY THE MAJORITY OF THE COURT IS NOT
ITS PRIMARY AND MOST OBVIOUS SIGNIFICATION.  NINETY-NINE OUT OF EVERY
HUNDRED EDUCATED MEN, UPON READING THIS SECTION OVER, WOULD AT FIRST
SAY THAT IT FORBADE A STATE TO MAKE OR ENFORCE A LAW WHICH ABRIDGED ANY
PRIVILEGE OR IMMUNITY WHATEVER OF ONE WHO WAS A CITIZEN OF THE UNITED
STATES; AND IT IS ONLY BY AN EFFORT OF INGENUITY THAT ANY OTHER SENSE
CAN BE DISCOVERED THAT IT CAN BE FORCED TO BEAR.  IT IS A LITTLE
REMARKABLE THAT, SO FAR AS THE REPORTS DISCLOSE, NO ONE OF THE
DISTINGUISHED COUNSEL WHO ARGUED THIS GREAT CASE (THE SLAUGHTER-HOUSE
CASES), NOR ANY ONE OF THE JUDGES WHO SAT IN IT, APPEARS TO HAVE
THOUGHT IT WORTH WHILE TO CONSULT THE PROCEEDINGS OF THE CONGRESS WHICH
PROPOSED THIS AMENDMENT, TO ASCERTAIN WHAT IT WAS THAT THEY WERE
SEEKING TO ACCOMPLISH.  NOTHING IS MORE COMMON THAN THIS.  THERE IS
HARDLY A QUESTION RAISED AS TO THE TRUE MEANING OF A PROVISION OF THE
OLD, ORIGINAL CONSTITUTION THAT RESORT IS NOT HAD TO ELLIOTT'S DEBATES,
TO ASCERTAIN WHAT THE FRAMERS OF THE INSTRUMENT DECLARED AT THE TIME
THAT THEY INTENDED TO ACCOMPLISH...."  ROYALL, THE FOURTEENTH
AMENDMENT:  THE SLAUGHTER-HOUSE CASES, 4 SO. L. REV. (N.S.)  558,
563(1879).    FOR A COLLECTION OF OTHER COMMENTS ON THE SLAUGHTER-HOUSE
CASES, SEE 2 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY (1937)
C. 32. 

FN7  THE CASE WAS NOT DECIDED UNTIL OVER TWO YEARS AFTER IT WAS
SUBMITTED.  IN A SHORT BRIEF FILED SOME TWO YEARS AFTER THE FIRST
BRIEFS, ONE OF THE COUNSEL ATTACKING THE CONSTITUTIONALITY OF THE STATE
STATUTE REFERRED TO AND CITED PART OF THE HISTORY OF THE FOURTEENTH
AMENDMENT.  THE HISTORICAL REFERENCES MADE WERE DIRECTED ONLY TO AN
EFFORT TO SHOW THAT A PURPOSE OF THE FOURTEENTH AMENDMENT WAS TO
PROTECT FREEDOM OF CONTRACT AGAINST MONOPOLY SINCE MONOPOLIES
INTERFERED WITH THE FREEDOM OF CONTRACT AND THE RIGHT TO ENGAGE IN
BUSINESS.  NONETHELESS SOME OF THESE REFERENCES WOULD HAVE SUPPORTED
THE THEORY, HAD IT BEEN IN QUESTION THERE, THAT A PURPOSE OF THE
FOURTEENTH AMENDMENT WAS TO MAKE THE BILL OF RIGHTS APPLICABLE TO THE
STATES.  FOR COUNSEL QUOTED A STATEMENT BY CONGRESSMAN BINGHAM THAT
"...  IT IS  ...  CLEAR BY EVERY CONSTRUCTION OF THE CONSTITUTION, ITS
CONTINUED CONSTRUCTION, LEGISLATIVE, EXECUTIVE AND JUDICIAL, THAT THESE
GREAT PROVISIONS OF THE CONSTITUTION, THIS IMMORTAL BILL OF RIGHTS
EMBODIED IN THE CONSTITUTION, RESTED FOR ITS EXECUTION AND ENFORCEMENT
HITHERTO UPON THE FIDELITY OF THE STATES.  THE HOUSE KNOWS, THE COUNTRY
KNOWS  ..., THAT THE LEGISLATIVE, EXECUTIVE AND JUDICIAL OFFICERS OF
ELEVEN STATES WITHIN THIS UNION, WITHIN THE LAST FIVE YEARS, HAVE
UTTERLY DISREGARDED THE BEHEST."  BUT SINCE THERE WAS NO CONTENTION
THAT THE BILL OF RIGHTS AMENDMENT PROHIBITED MONOPOLY, THIS STATEMENT,
IN THE CONTEXT IN WHICH IT WAS QUOTED, IS HARDLY AN INDICATION THAT THE
COURT WAS PRESENTED WITH DOCUMENTED ARGUMENT ON THE QUESTION OF WHETHER
THE FOURTEENTH AMENDMENT MADE THE BILL OF RIGHTS APPLICABLE TO THE
STATES. 

FN8  SEE SAN MATEO COUNTY V. SOUTHERN P.R. CO., 116 U.S. 138; SANTA
CLARA COUNTY V. SOUTHERN P.R. CO., 118 U.S. 394, 396; GRAHAM, THE
"CONSPIRACY THEORY" OF THE FOURTEENTH AMENDMENT, 47 YALE L.J. 371, 48
YALE L.J. 171. 

FN9  THIS CASE WAS DECIDED AFTER HURTADO BUT BEFORE TWINING.  IT
APPARENTLY WAS THE FIRST DECISION OF THIS COURT WHICH BROUGHT IN A BILL
OF RIGHTS PROVISION UNDER THE DUE PROCESS CLAUSE.  IN DAVIDSON V. NEW
ORLEANS, 96 U.S. 97, 105 THE COURT HAD REFUSED TO MAKE SUCH A HOLDING,
SAYING THAT "IT MUST BE REMEMBERED THAT, WHEN THE FOURTEENTH AMENDMENT
WAS ADOPTED, THE PROVISION ON THAT SUBJECT (JUST COMPENSATION), IN
IMMEDIATE JUXTAPOSITION IN THE FIFTH AMENDMENT WITH THE ONE WE ARE NOW
CONSTRUING (DUE PROCESS), WAS LEFT OUT, AND THIS (DUE PROCESS) WAS
TAKEN."  NOT ONLY WAS THE JUST COMPENSATION CLAUSE LEFT OUT, BUT IT WAS
DELIBERATELY LEFT OUT.  A COMMITTEE ON RECONSTRUCTION FRAMED THE
FOURTEENTH AMENDMENT, AND ITS JOURNAL SHOWS THAT ON APRIL 21, 1866, THE
COMMITTEE BY A 7 TO 5 VOTE REJECTED A PROPOSAL TO INCORPORATE THE JUST
COMPENSATION CLAUSE IN THE FOURTEENTH AMENDMENT.  JOURNAL OF THE JOINT
COMMITTEE ON RECONSTRUCTION, 39TH CONG., 1ST SESS. (1866), REPRINTED AS
SEN. DOC. NO. 711, 63D CONG., 3D SESS. (1915) 29.  AS SHOWN BY THE
HISTORY OF THE AMENDMENT'S PASSAGE, HOWEVER, THE FRAMERS THOUGHT THAT
IN THE LANGUAGE THEY HAD INCLUDED THIS PROTECTION ALONG WITH ALL THE
OTHER PROTECTIONS OF THE BILL OF RIGHTS.  SEE APPENDIX, INFRA. 

FN10 ONE WRITER OBSERVED, "THAT THE SUPREME COURT HAS, ON THE ONE
HAND, REFUSED TO GIVE THIS AMENDMENT ITS EVIDENT MEANING AND PURPOSE -
THUS COMPLETELY DEFEATING THE INTENTION OF THE CONGRESS THAT FRAMED IT
AND OF THE PEOPLE THAT ADOPTED IT.  BUT, ON THE OTHER HAND, THE COURT
HAS PUT INTO IT A MEANING WHICH HAD NEVER BEEN INTENDED EITHER BY ITS
FRAMERS OR ADOPTERS - THUS IN EFFECT ADOPTING A NEW AMENDMENT AND
AUGMENTING ITS OWN POWER BY CONSTITUTING ITSELF THAT 'PERPETUAL CENSOR
UPON ALL LEGISLATION OF THE STATE,' WHICH MR. JUSTICE MILLER WAS AFRAID
THE COURT WOULD BECOME IF THE FOURTEENTH AMENDMENT WERE INTERPRETED
ACCORDING TO ITS TRUE MEANING AND GIVEN THE FULL EFFECT INTENDED BY THE
PEOPLE WHEN THEY ADOPTED IT."  2 BOUDIN, GOVERNMENT BY JUDICIARY (1932)
117.  SEE ALSO HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS (1930) 143
165; FAIRMAN, MR. JUSTICE MILLER AND THE SUPREME COURT (1939) C. VIII. 

FN11  SEE CASES COLLECTED PP. 78-79 SUPRA.  OTHER CONSTITUTIONAL
RIGHTS LEFT UNPROTECTED FROM STATE VIOLATION ARE, FOR EXAMPLE, RIGHT TO
COUNSEL, BETTS V. BRADY, 316 U.S. 455; PRIVILEGE AGAINST SELF
INCRIMINATION, FELDMAN V. UNITED STATES, 322 U.S. 487, 490. 

FN12  EXAMPLES OF REGULATORY LEGISLATION INVALIDATED ARE:  STATE TEN
HOUR LAW FOR BAKERY EMPLOYEES, LOCHNER V. NEW YORK, 198 U.S. 45; CF.
MULLER V. OREGON, 208 U.S. 412; DISTRICT OF COLUMBIA MINIMUM WAGE FOR
WOMEN, ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525; MOREHEAD V. NEW
YORK, 298 U.S. 587; BUT CF. WEST COAST HOTEL CO. V. PARRISH, 300 U.S.
379; STATE LAW MAKING IT ILLEGAL TO DISCHARGE EMPLOYEE FOR MEMBERSHIP
IN A UNION, COPPAGE V. KANSAS, 236 U.S. 1; CF. ADAIR V. UNITED STATES,
208 U.S. 161; STATE LAW FIXING PRICE OF GASOLINE, WILLIAMS V. STANDARD
OIL CO., 278 U.S. 235; STATE TAXATION OF BONDS, BALDWIN V. MISSOURI,
281 U.S. 586; STATE LAW LIMITING AMUSEMENT TICKET BROKERAGE, RIBNIK V.
MCBRIDE, 277 U.S. 350; LAW FIXING SIZE OF LOAVES OF BREAD TO PREVENT
FRAUD ON PUBLIC, JAY BURNS BAKING CO. V. BRYAN, 264 U.S. 504; CF.
SCHMIDINGER V. CHICAGO, 226 U.S. 578. 

FN13  SEE PARTICULARLY DISSENTS IN CASES CITED NOTES 11 AND 12,
SUPRA. 

FN14  ACTUALLY IT APPEARS THAT THE PRACTICE OF THE COURT OF STAR
CHAMBER OF COMPELLING AN ACCUSED TO TESTIFY UNDER OATH IN LILBURN'S
TRIAL, 3 HOWELL'S STATE TRIALS 1315; 4 ID., 1269, 1280, 1292, 1342, HAD
HELPED BRING TO A HEAD THE POPULAR OPPOSITION WHICH BROUGHT ABOUT THE
DEMISE OF THAT ENGINE OF TYRANNY.  16 CAR.  I, CC. 10, 11.  SEE 8
WIGMORE, EVIDENCE (1940) PP. 292, 298; PITTMAN, THE COLONIAL AND
CONSTITUTIONAL HISTORY OF THE PRIVILEGE AGAINST SELF-INCRIMINATION, 21
VA. L. REV. 763, 774(1935).  MOREOVER, IT HAS BEEN POINTED OUT THAT
SEVEN AMERICAN STATE CONSTITUTIONS GUARANTEED A PRIVILEGE AGAINST SELF
INCRIMINATION PRIOR TO 1789.  PITTMAN, SUPRA, 765; MD. CONST. (1776), 1
POORE CONSTITUTIONS (1878) 818; MASS. CONST. (1780), ID. AT 958; N.C.
CONST. (1776), 2 ID. AT 1409; N.H. CONST. (1784), ID. AT 1282; PA.
CONST. (1776), ID. AT 1542; VT. CONST. (1777), ID. AT 1860; VA. BILL OF
RIGHTS (1776), ID. AT 1909. 

BY CONTRAST IT HAS BEEN POINTED OUT THAT FREEDOM OF SPEECH WAS NOT
PROTECTED BY COLONIAL OR STATE CONSTITUTIONS PRIOR TO 1789 EXCEPT FOR
THE RIGHT TO SPEAK FREELY IN SESSIONS OF THE LEGISLATURES.  SEE WARREN,
THE NEW "LIBERTY" UNDER THE FOURTEENTH AMENDMENT, 39 HARV. L. REV. 431,
461(1926). 

FN15  FOR ACCOUNTS OF THE PROCEEDINGS AGAINST MRS. HUTCHINSON, SEE 1
HART, AMERICAN HISTORY TOLD BY CONTEMPORARIES, 382 FF. (1897); BEARD,
THE RISE OF AMERICAN CIVILIZATION (1930) 57; 1 ANDREWS, THE COLONIAL
PERIOD OF AMERICAN HISTORY, 485(1934). 

FN16  SEE, E.G., BETTS V. BRADY, 316 U.S. 455; FELDMAN V. UNITED
STATES, 322 U.S. 487. 

FN17  SEE CHAMBERS V. FLORIDA, 309 U.S. 227; POLK CO. V. GLOVER, 305
U.S. 5, 12-19; MCCART V. INDIANAPOLIS WATER CO., 302 U.S. 419, 423,
428; MILK WAGON DRIVERS V. MEADOWMOOR DAIRIES, 312 U.S. 287, 299, 301;
BETTS V. BRADY, 316 U.S. 455, 474; INTERNATIONAL SHOE CO. V.
WASHINGTON, 326 U.S. 310, 322, 324-326; FELDMAN V. UNITED STATES, 322
U.S. 487, 494, 495; FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., 320
U.S. 591, 619, 620; UNITED GAS CO. V. TEXAS, 303 U.S. 123, 146, 153;
GIBBS V. BUCK, 307 U.S. 66, 79. 

FN18  AN EARLY AND PRESCIENT EXPOSE OF THE INCONSISTENCY OF THE
NATURAL LAW FORMULA WITH OUR CONSTITUTIONAL FORM OF GOVERNMENT APPEARS
IN THE CONCURRING OPINION OF MR. JUSTICE IREDELL IN CALDER V. BULL, 3
DALL.  386, 398, 399:  "IF ANY ACT OF CONGRESS, OR OF THE LEGISLATURE
OF A STATE, VIOLATES  ...  CONSTITUTIONAL PROVISIONS, IT IS
UNQUESTIONABLY VOID; THOUGH, I ADMIT, THAT AS THE AUTHORITY TO DECLARE
IT VOID IS OF A DELICATE AND AWFUL NATURE, THE COURT WILL NEVER RESORT
TO THAT AUTHORITY, BUT IN A CLEAR AND URGENT CASE.  IF, ON THE OTHER
HAND, THE LEGISLATURE OF THE UNION, OR THE LEGISLATURE OF ANY MEMBER OF
THE UNION, SHALL PASS A LAW, WITHIN THE GENERAL SCOPE OF THEIR
CONSTITUTIONAL POWER, THE COURT CANNOT PRONOUNCE IT TO BE VOID, MERELY
BECAUSE IT IS, IN THEIR JUDGMENT, CONTRARY TO THE PRINCIPLES OF NATURAL
JUSTICE.  THE IDEAS OF NATURAL JUSTICE ARE REGULATED BY NO FIXED
STANDARD: THE ABLEST AND THE PUREST MEN HAVE DIFFERED UPON THE SUBJECT;
AND ALL THAT THE COURT COULD PROPERLY SAY, IN SUCH AN EVENT, WOULD BE,
THAT THE LEGISLATURE (POSSESSED OF AN EQUAL RIGHT OF OPINION) HAD
PASSED AN ACT WHICH, IN THE OPINION OF THE JUDGES, WAS INCONSISTENT
WITH THE ABSTRACT PRINCIPLES OF NATURAL JUSTICE." 

SEE ALSO HAINES, THE LAW OF NATURE IN STATE AND FEDERAL DECISIONS, 25
YALE L.J. 617(1916); JUDICIAL REVIEW OF LEGISLATION IN THE UNITED
STATES AND THE DOCTRINES OF VESTED RIGHTS AND OF IMPLIED LIMITATIONS ON
LEGISLATURES, 2 TEX. L. REV. 257(1924), 3 TEX. L. REV. 1(1924); THE
REVIVAL OF NATURAL LAW CONCEPTS (1930); THE AMERICAN DOCTRINE OF
JUDICIAL SUPREMACY (1932); THE ROLE OF THE SUPREME COURT IN AMERICAN
GOVERNMENT AND POLITICS (1944). 

MR. JUSTICE DOUGLAS JOINS IN THIS OPINION. 

                        APPENDIX. 

           I. 

THE LEGISLATIVE ORIGIN OF THE FIRST SECTION OF THE FOURTEENTH
AMENDMENT SEEMS TO HAVE BEEN IN THE JOINT COMMITTEE ON RECONSTRUCTION. 
THAT COMMITTEE HAD BEEN APPOINTED BY A CONCURRENT RESOLUTION OF THE
HOUSE AND SENATE WITH AUTHORITY TO REPORT "BY BILL OR OTHERWISE"
WHETHER THE FORMER CONFEDERATE STATES "ARE ENTITLED TO BE REPRESENTED
IN EITHER HOUSE OF CONGRESS."  CONG. GLOBE, 39TH CONG., 1ST SESS.
(1865) 6, 30.  THE BROAD MISSION OF THAT COMMITTEE WAS REVEALED BY ITS
VERY FIRST ACTION OF SENDING A DELEGATION TO PRESIDENT JOHNSON
REQUESTING HIM TO "DEFER ALL FURTHER EXECUTIVE ACTION IN REGARD TO
RECONSTRUCTION UNTIL THIS COMMITTEE SHALL HAVE TAKEN ACTION ON THAT
SUBJECT."  JOURNAL OF THE JOINT COMMITTEE ON RECONSTRUCTION, 39TH
CONG., 1ST SESS. (1866), REPRINTED AS SEN. DOC. NO. 711, 63D CONG., 3D
SESS. (1915) 6.  IT IMMEDIATELY SET ABOUT THE BUSINESS OF DRAFTING
CONSTITUTIONAL AMENDMENTS WHICH WOULD OUTLINE THE PLAN OF
RECONSTRUCTION WHICH IT WOULD RECOMMEND TO CONGRESS.  SOME OF THOSE
PROPOSED AMENDMENTS RELATED TO SUFFRAGE AND REPRESENTATION IN THE
SOUTH.  JOURNAL, 7.  ON JANUARY 12, 1866, A SUBCOMMITTEE, CONSISTING OF
SENATORS FESSENDEN (CHAIRMAN OF THE RECONSTRUCTION COMMITTEE) AND
HOWARD, AND CONGRESSMEN STEVENS, BINGHAM AND CONKLING, WAS APPOINTED TO
CONSIDER THOSE SUFFRAGE PROPOSALS.  JOURNAL, 9.  THERE WAS AT THE SAME
TIME REFERRED TO THIS COMMITTEE A "PROPOSED AMENDMENT TO THE
CONSTITUTION" SUBMITTED BY MR. BINGHAM THAT: 

"THE CONGRESS SHALL HAVE POWER TO MAKE ALL LAWS NECESSARY AND PROPER
TO SECURE TO ALL PERSONS IN EVERY STATE WITHIN THIS UNION EQUAL
PROTECTION IN THEIR RIGHTS OF LIFE, LIBERTY, AND PROPERTY."  JOURNAL,
9.  ANOTHER PROPOSED AMENDMENT THAT "ALL LAWS, STATE OR NATIONAL, SHALL
OPERATE IMPARTIALLY AND EQUALLY ON ALL PERSONS WITHOUT REGARD TO RACE
OR COLOR,"  FN1  WAS ALSO REFERRED TO THE COMMITTEE.  JOURNAL, 9.  ON
JANUARY 24, 1866, THE SUBCOMMITTEE REPORTED BACK A COMBINATION OF THESE
TWO PROPOSALS WHICH WAS NOT ACCEPTED BY THE FULL COMMITTEE.  JOURNAL,
13, 14.  THEREUPON THE PROPOSALS WERE REFERRED TO A "SELECT COMMITTEE
OF THREE," BINGHAM, BOUTWELL AND ROGERS.  JOURNAL, 14.  ON JANUARY 27,
1866, MR. BINGHAM ON BEHALF OF THE SELECT COMMITTEE, PRESENTED THIS
RECOMMENDED AMENDMENT TO THE FULL COMMITTEE: 

"CONGRESS SHALL HAVE POWER TO MAKE ALL LAWS WHICH SHALL BE NECESSARY
AND PROPER TO SECURE ALL PERSONS IN EVERY STATE FULL PROTECTION IN THE
ENJOYMENT OF LIFE, LIBERTY, AND PROPERTY; AND TO ALL CITIZENS OF THE
UNITED STATES, IN ANY STATE, THE SAME IMMUNITIES AND ALSO EQUAL
POLITICAL RIGHTS AND PRIVILEGES."  JOURNAL, 14.  THIS WAS NOT
ACCEPTED.  BUT ON FEBRUARY 3, 1866, MR. BINGHAM SUBMITTED AN AMENDED
VERSION: "THE CONGRESS SHALL HAVE POWER TO MAKE ALL LAWS WHICH SHALL BE
NECESSARY AND PROPER TO SECURE TO THE CITIZENS OF EACH STATE ALL
PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES (ART. 4,
SEC. 2); AND TO ALL PERSONS IN THE SEVERAL STATES EQUAL PROTECTION IN
THE RIGHTS OF LIFE, LIBERTY, AND PROPERTY (5TH AMENDMENT)."  THIS WON
COMMITTEE APPROVAL, JOURNAL, 17, AND WAS PRESENTED BY MR. BINGHAM TO
THE HOUSE ON BEHALF OF THE COMMITTEE ON FEBRUARY 13, 1866.  CONG.
GLOBE, SUPRA, 813. 

                       II. 

WHEN, ON FEBRUARY 26, THE PROPOSED AMENDMENT CAME UP FOR DEBATE, MR.
BINGHAM STATED THAT "BY ORDER  ...  OF THE COMMITTEE  ...  I PROPOSE
THE ADOPTION OF THIS AMENDMENT."  IN SUPPORT OF IT HE SAID: 

"  ...  THE AMENDMENT PROPOSED STANDS IN THE VERY WORDS OF THE
CONSTITUTION OF THE UNITED STATES AS IT CAME TO US FROM THE HANDS OF
ITS ILLUSTRIOUS FRAMERS.  EVERY WORD OF THE PROPOSED AMENDMENT IS TO
DAY IN THE CONSTITUTION OF OUR COUNTRY, SAVE THE WORDS CONFERRING THE
EXPRESS GRANT OF POWER UPON THE CONGRESS OF THE UNITED STATES.  THE
RESIDUE OF THE RESOLUTION, AS THE HOUSE WILL SEE BY A REFERENCE TO THE
CONSTITUTION, IS THE LANGUAGE OF THE SECOND SECTION OF THE FOURTH
ARTICLE, AND OF A PORTION OF THE FIFTH AMENDMENT ADOPTED BY THE FIRST
CONGRESS IN 1789, AND MADE PART OF THE CONSTITUTION OF THE COUNTRY. 
... 

"SIR, IT HAS BEEN THE WANT OF THE REPUBLIC THAT THERE WAS NOT AN
EXPRESS GRANT OF POWER IN THE CONSTITUTION TO ENABLE THE WHOLE PEOPLE
OF EVERY STATE, BY CONGRESSIONAL ENACTMENT, TO ENFORCE OBEDIENCE TO
THESE REQUIREMENTS OF THE CONSTITUTION.  NOTHING CAN BE PLAINER TO
THOUGHTFUL MEN THAN THAT IF THE GRANT OF POWER HAD BEEN ORIGINALLY
CONFERRED UPON THE CONGRESS OF THE NATION, AND LEGISLATION HAD BEEN
UPON YOUR STATUTE-BOOKS TO ENFORCE THESE REQUIREMENTS OF THE
CONSTITUTION IN EVERY STATE, THAT REBELLION, WHICH HAS SCARRED AND
BLASTED THE LAND, WOULD HAVE BEEN AN IMPOSSIBILITY.  ...          .
.         .         .         . 

"AND, SIR, IT IS EQUALLY CLEAR BY EVERY CONSTRUCTION OF THE
CONSTITUTION, ITS CONTEMPORANEOUS CONSTRUCTION, ITS CONTINUED
CONSTRUCTION, LEGISLATIVE, EXECUTIVE, AND JUDICIAL, THAT THESE GREAT
PROVISIONS OF THE CONSTITUTION, THIS IMMORTAL BILL OF RIGHTS EMBODIED
IN THE CONSTITUTION, RESTED FOR ITS EXECUTION AND ENFORCEMENT HITHERTO
UPON THE FIDELITY OF THE STATES.  ...  "  CONG. GLOBE, SUPRA, 1033
1034. 

OPPOSITION SPEAKERS EMPHASIZED THAT THE AMENDMENT WOULD DESTROY
STATE'S RIGHTS AND EMPOWER CONGRESS TO LEGISLATE ON MATTERS OF PURELY
LOCAL CONCERN.  CONG. GLOBE, SUPRA, 1054, 1057, 1063-1065, 1083, 1085
1087.  SEE ALSO ID. AT 1082.  SOME TOOK THE POSITION THAT THE AMENDMENT
WAS UNNECESSARY BECAUSE THE BILL OF RIGHTS WERE ALREADY SECURED AGAINST
STATE VIOLATION.  ID. AT 1059, 1066, 1088.  MR. BINGHAM JOINED ISSUE ON
THIS CONTENTION: 

"THE GENTLEMAN SEEMED TO THINK THAT ALL PERSONS COULD HAVE REMEDIES
FOR ALL VIOLATIONS OF THEIR RIGHTS OF 'LIFE, LIBERTY, AND PROPERTY' IN
THE FEDERAL COURTS. 

"I VENTURED TO ASK HIM YESTERDAY WHEN ANY ACTION OF THAT SORT WAS
EVER MAINTAINED IN ANY OF THE FEDERAL COURTS OF THE UNITED STATES TO
REDRESS THE GREAT WRONG WHICH HAS BEEN PRACTICED, AND WHICH IS BEING
PRACTICED NOW IN MORE STATES THAN ONE OF THE UNION UNDER THE AUTHORITY
OF STATE LAWS, DENYING TO CITIZENS THEREIN EQUAL PROTECTION OR ANY
PROTECTION IN THE RIGHTS OF LIFE, LIBERTY, AND PROPERTY. 

     .         .         .         .       . 

"  ...  A GENTLEMAN ON THE OTHER SIDE INTERRUPTED ME AND WANTED TO
KNOW IF I COULD CITE A DECISION SHOWING THAT THE POWER OF THE FEDERAL
GOVERNMENT TO ENFORCE IN THE UNITED STATES COURTS THE BILL OF RIGHTS
UNDER THE ARTICLES OF AMENDMENT TO THE CONSTITUTION HAD BEEN DENIED.  I
ANSWERED THAT I WAS PREPARED TO INTRODUCE SUCH DECISIONS; AND THAT IS
EXACTLY WHAT MAKES PLAIN THE NECESSITY OF ADOPTING THIS AMENDMENT. 

"MR. SPEAKER, ON THIS SUBJECT I REFER THE HOUSE AND THE COUNTRY TO A
DECISION OF THE SUPREME COURT, TO BE FOUND IN 7 PETERS, 247, IN THE
CASE OF BARRON VS. THE MAYOR AND CITY COUNCIL OF BALTIMORE, INVOLVING
THE QUESTION WHETHER THE PROVISIONS OF THE FIFTH ARTICLE OF THE
AMENDMENTS TO THE CONSTITUTION ARE BINDING UPON THE STATE OF MARYLAND
AND TO BE ENFORCED IN THE FEDERAL COURTS.  THE CHIEF JUSTICE SAYS: 

"'THE PEOPLE OF THE UNITED STATES FRAMED SUCH A GOVERNMENT FOR THE
UNITED STATES AS THEY SUPPOSED BEST ADAPTED TO THEIR SITUATION AND BEST
CALCULATED TO PROMOTE THEIR INTERESTS.  THE POWERS THEY CONFERRED ON
THIS GOVERNMENT WERE TO BE EXERCISED BY ITSELF; AND THE LIMITATIONS OF
POWER, IF EXPRESSED IN GENERAL TERMS, ARE NATURALLY, AND WE THINK
NECESSARILY, APPLICABLE TO THE GOVERNMENT CREATED BY THE INSTRUMENT. 
THEY ARE LIMITATIONS OF POWER GRANTED IN THE INSTRUMENT ITSELF, NOT OF
DISTINCT GOVERNMENTS, FRAMED BY DIFFERENT PERSONS AND FOR DIFFERENT
PURPOSES. 

"'IF THESE PROPOSITIONS BE CORRECT, THE FIFTH AMENDMENT MUST BE
UNDERSTOOD AS RESTRAINING THE POWER OF THE GENERAL GOVERNMENT, NOT AS
APPLICABLE TO THE STATES.' 

"I READ ONE FURTHER DECISION ON THIS SUBJECT - THE CASE OF THE LESSEE
OF LIVINGSTON VS. MOORE AND OTHERS, 7 PETERS, PAGE 551.  THE COURT, IN
DELIVERING ITS OPINION, SAYS: 

"'AS TO THE AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES, THEY
MUST BE PUT OUT OF THE CASE, SINCE IT IS NOW SETTLED THAT THOSE
AMENDMENTS DO NOT EXTEND TO THE STATES; AND THIS OBSERVATION DISPOSES
OF THE NEXT EXCEPTION, WHICH RELIES ON THE SEVENTH ARTICLE OF THOSE
AMENDMENTS.' 

     .         .         .         .         . 

"THE QUESTION IS, SIMPLY, WHETHER YOU WILL GIVE BY THIS AMENDMENT TO
THE PEOPLE OF THE UNITED STATES THE POWER, BY LEGISLATIVE ENACTMENT, TO
PUNISH OFFICIALS OF STATES FOR VIOLATION OF THE OATHS ENJOINED UPON
THEM BY THEIR CONSTITUTION?  ...  IS THE BILL OF RIGHTS TO STAND IN OUR
CONSTITUTION HEREAFTER, AS IN THE PAST FIVE YEARS WITHIN ELEVEN STATES,
A MERE DEAD LETTER?  IT IS ABSOLUTELY ESSENTIAL TO THE SAFETY OF THE
PEOPLE THAT IT SHOULD BE ENFORCED. 

"MR. SPEAKER, IT APPEARS TO ME THAT THIS VERY PROVISION OF THE BILL
OF RIGHTS BROUGHT IN QUESTION THIS DAY, UPON THIS TRIAL BEFORE THE
HOUSE, MORE THAN ANY OTHER PROVISION OF THE CONSTITUTION, MAKES THAT
UNITY OF GOVERNMENT WHICH CONSTITUTES US ONE PEOPLE, BY WHICH AND
THROUGH WHICH AMERICAN NATIONALITY CAME TO BE, AND ONLY BY THE
ENFORCEMENT OF WHICH CAN AMERICAN NATIONALITY CONTINUE TO BE. 

     .         .         .         .         . 

"WHAT MORE COULD HAVE BEEN ADDED TO THAT INSTRUMENT TO SECURE THE
ENFORCEMENT OF THESE PROVISIONS OF THE BILL OF RIGHTS IN EVERY STATE,
OTHER THAN THE ADDITIONAL GRANT OF POWER WHICH WE ASK THIS DAY?  ... 

"AS SLAVES WERE NOT PROTECTED BY THE CONSTITUTION, THERE MIGHT BE
SOME COLOR OF EXCUSE FOR THE SLAVE STATES IN THEIR DISREGARD FOR THE
REQUIREMENT OF THE BILL OF RIGHTS AS TO SLAVES AND REFUSING THEM
PROTECTION IN LIFE OR PROPERTY  ... 

"BUT, SIR, THERE NEVER WAS EVEN COLORABLE EXCUSE, MUCH LESS APOLOGY,
FOR ANY MAN NORTH OR SOUTH CLAIMING THAT ANY STATE LEGISLATURE OR STATE
COURT, OR STATE EXECUTIVE, HAS ANY RIGHT TO DENY PROTECTION TO ANY FREE
CITIZEN OF THE UNITED STATES WITHIN THEIR LIMITS IN THE RIGHTS OF LIFE,
LIBERTY, AND PROPERTY.  GENTLEMEN WHO OPPOSE THIS AMENDMENT OPPOSE THE
GRANT OF POWER TO ENFORCE THE BILL OF RIGHTS.  GENTLEMEN WHO OPPOSE
THIS AMENDMENT SIMPLY DECLARE TO THESE REBEL STATES, GO ON WITH YOUR
CONFISCATION STATUTES, YOUR STATUTES OF BANISHMENT, YOUR STATUTES OF
UNJUST IMPRISONMENT, YOUR STATUTES OF MURDER AND DEATH AGAINST MEN
BECAUSE OF THEIR LOYALTY TO THE CONSTITUTION AND GOVERNMENT OF THE
UNITED STATES."  ID. AT 1089-1091. 

"  ...  WHERE IS THE POWER IN CONGRESS, UNLESS THIS OR SOME SIMILAR
AMENDMENT BE ADOPTED, TO PREVENT THE REENACTMENT OF THOSE INFERNAL
STATUTES  ...  ?  LET SOME MAN ANSWER.  WHY, SIR, THE GENTLEMAN FROM
NEW YORK (MR. HALE)  ...  YESTERDAY GAVE UP THE ARGUMENT ON THIS
POINT.  HE SAID THAT THE CITIZENS MUST RELY UPON THE STATE FOR THEIR
PROTECTION.  I ADMIT THAT SUCH IS THE RULE UNDER THE CONSTITUTION AS IT
NOW STANDS."  ID. AT 1093. 

AS ONE IMPORTANT WRITER ON THE ADOPTION OF THE FOURTEENTH AMENDMENT
HAS OBSERVED, "BINGHAM'S SPEECH IN DEFENSE AND ADVOCACY OF HIS
AMENDMENT COMPREHENDS PRACTICALLY EVERYTHING THAT WAS SAID IN THE PRESS
OR ON THE FLOOR OF THE HOUSE IN FAVOR OF THE RESOLUTION  ...  "
KENDRICK, JOURNAL OF THE JOINT COMMITTEE ON RECONSTRUCTION (1914) 217. 
A READING OF THE DEBATES INDICATES THAT NO MEMBER EXCEPT MR. HALE HAD
CONTRADICTED MR. BINGHAM'S ARGUMENT THAT WITHOUT THIS AMENDMENT THE
STATES HAD POWER TO DEPRIVE PERSONS OF THE RIGHTS GUARANTEED BY THE
FIRST EIGHT AMENDMENTS.  MR. HALE HAD CONCEDED THAT HE DID NOT "KNOW OF
A CASE WHERE IT HAS EVER BEEN DECIDED THAT THE UNITED STATES
CONSTITUTION IS SUFFICIENT FOR THE PROTECTION OF THE LIBERTIES OF THE
CITIZEN."  CONG. GLOBE, SUPRA, AT 1064.  BUT HE WAS APPARENTLY UNAWARE
OF THE DECISION OF THIS COURT IN BARRON V. BALTIMORE, SUPRA.  FOR HE
THOUGHT THAT THE PROTECTIONS OF THE BILL OF RIGHTS HAD ALREADY BEEN
"THROWN OVER US IN SOME WAY, WHETHER WITH OR WITHOUT THE SANCTION OF A
JUDICIAL DECISION ...  "  AND IN ANY EVENT, HE INSISTED, "  ...  THE
AMERICAN PEOPLE HAVE NOT YET FOUND THAT THEIR STATE GOVERNMENTS ARE
INSUFFICIENT TO PROTECT THE RIGHTS AND LIBERTIES OF THE CITIZEN."  HE
FURTHER OBJECTED, AS HAD MOST OF THE OTHER OPPONENTS TO THE PROPOSAL,
THAT THE AMENDMENT AUTHORIZED THE CONGRESS TO "ARROGATE" TO ITSELF VAST
POWERS OVER ALL KINDS OF AFFAIRS WHICH SHOULD PROPERLY BE LEFT TO THE
STATES.  CONG. GLOBE, SUPRA, 1064-1065. 

WHEN MR. HOTCHKISS SUGGESTED THAT THE AMENDMENT SHOULD BE COUCHED IN
TERMS OF A PROHIBITION AGAINST THE STATES IN ADDITION TO AUTHORIZING
CONGRESS TO LEGISLATE AGAINST STATE DEPRIVATIONS OF PRIVILEGES AND
IMMUNITIES, DEBATE ON THE AMENDMENT WAS POSTPONED UNTIL THE SECOND
TUESDAY OF APRIL, 1866.  CONG. GLOBE, SUPRA, 1095. 

III. 

IMPORTANT EVENTS WHICH APPARENTLY AFFECTED THE EVOLUTION OF THE
FOURTEENTH AMENDMENT TRANSPIRED DURING THE PERIOD DURING WHICH
DISCUSSION OF IT WAS POSTPONED.  THE FREEDMAN'S BUREAU BILL WHICH MADE
DEPRIVATION OF CERTAIN CIVIL RIGHTS OF NEGROES AN OFFENSE PUNISHABLE BY
MILITARY TRIBUNALS HAD BEEN PASSED.  IT APPLIED, NOT TO THE ENTIRE
COUNTRY, BUT ONLY TO THE SOUTH.  ON FEBRUARY 19, 1866, PRESIDENT
JOHNSON HAD VETOED THE BILL PRINCIPALLY ON THE GROUND THAT IT WAS
UNCONSTITUTIONAL.  CONG. GLOBE, SUPRA, 915.  FORTHWITH, A COMPANION
PROPOSAL KNOWN AS THE CIVIL RIGHTS BILL EMPOWERING FEDERAL COURTS TO
PUNISH THOSE WHO DEPRIVED ANY PERSON ANYWHERE IN THE COUNTRY OF CERTAIN
DEFINED CIVIL RIGHTS WAS PRESSED TO PASSAGE.  SENATOR TRUMBULL,
CHAIRMAN OF THE SENATE JUDICIARY COMMITTEE, WHO OFFERED THE BILL IN THE
SENATE ON BEHALF OF THAT COMMITTEE, HAD STATED THAT "THE LATE
SLAVEHOLDING STATES" HAD ENACTED LAWS "  ...  DEPRIVING PERSONS OF
AFRICAN DESCENT OF PRIVILEGES WHICH ARE ESSENTIAL TO FREEMEN  ...
STATUTES OF MISSISSIPPI  ... PROVIDE THAT  ...  IF ANY PERSON OF
AFRICAN DESCENT RESIDING IN THAT STATE TRAVELS FROM ONE COUNTY TO
ANOTHER WITHOUT HAVING A PASS OR A CERTIFICATE OF HIS FREEDOM, HE IS
LIABLE TO BE COMMITTED TO JAIL AND TO BE DEALT WITH AS A PERSON WHO IS
IN THE STATE WITHOUT AUTHORITY.  OTHER PROVISIONS OF THE STATUTE
PROHIBIT ANY NEGRO OR MULATTO FROM HAVING FIRE-ARMS; AND ONE PROVISION
OF THE STATUTE DECLARES THAT FOR 'EXERCISING THE FUNCTIONS OF A
MINISTER OF THE GOSPEL FREE NEGROES  ...  ON CONVICTION, MAY BE
PUNISHED BY  ...  LASHES  ...  '  OTHER PROVISIONS  ...  PROHIBIT A
FREE NEGRO ...  FROM KEEPING A HOUSE OF ENTERTAINMENT, AND SUBJECT HIM
TO TRIAL BEFORE TWO JUSTICES OF THE PEACE AND FIVE SLAVEHOLDERS FOR
VIOLATING  ...  THIS LAW.  THE STATUTES OF SOUTH CAROLINA MAKE IT A
HIGHLY PENAL OFFENSE FOR ANY PERSON, WHITE OR COLORED, TO TEACH SLAVES;
AND SIMILAR PROVISIONS ARE TO BE FOUND RUNNING THROUGH ALL THE STATUTES
OF THE LATE SLAVEHOLDING STATES.  ...  THE PURPOSE OF THE BILL  ...  IS
TO DESTROY ALL THESE DISCRIMINATIONS  ...  "  CONG. GLOBE, SUPRA, 474. 

IN THE HOUSE, AFTER MR. BINGHAM'S ORIGINAL PROPOSAL FOR A
CONSTITUTIONAL AMENDMENT HAD BEEN REJECTED, THE SUGGESTION WAS ALSO
ADVANCED THAT THE BILL SECURED FOR ALL "THE RIGHT OF SPEECH, ...
TRANSIT,  ...  DOMICIL,  ...  THE RIGHT TO SUE, THE WRIT OF HABEAS
CORPUS, AND THE RIGHT OF PETITION."  CONG. GLOBE, SUPRA, 1263.  AND AN
OPPONENT OF THE MEASURE, MR. RAYMOND, CONCEDED THAT IT WOULD GUARANTEE
TO THE NEGRO "THE RIGHT OF FREE PASSAGE  ...  HE HAS A DEFINED STATUS
...  A RIGHT TO DEFEND HIMSELF  ...  TO BEAR ARMS  ...  TO TESTIFY IN
THE FEDERAL COURTS  ...  " CONG. GLOBE, SUPRA, 1266-1267.  BUT
OPPONENTS TOOK THE POSITION THAT WITHOUT A CONSTITUTIONAL AMENDMENT
SUCH AS THAT PROPOSED BY MR. BINGHAM, THE CIVIL RIGHTS BILL WOULD BE
UNCONSTITUTIONAL.  CONG. GLOBE, SUPRA, 1154-1155, 1263. 

MR. BINGHAM HIMSELF VIGOROUSLY OPPOSED AND VOTED AGAINST THE BILL. 
HIS OBJECTION WAS TWOFOLD: FIRST, INSOFAR AS IT EXTENDED THE
PROTECTIONS OF THE BILL OF RIGHTS AS AGAINST STATE INVASION, HE
BELIEVED THE MEASURE TO BE UNCONSTITUTIONAL BECAUSE OF THE SUPREME
COURT'S HOLDING IN BARRON V. BALTIMORE, SUPRA.  WHILE FAVORING THE
EXTENSION OF THE BILL OF RIGHTS GUARANTEES AS AGAINST STATE INVASION,
HE THOUGHT THIS COULD BE DONE ONLY BY PASSAGE OF HIS AMENDMENT.  HIS
SECOND OBJECTION TO THE BILL WAS THAT, IN HIS VIEW, IT WOULD GO BEYOND
HIS OBJECTIVE OF MAKING THE STATES OBSERVE THE BILL OF RIGHTS AND WOULD
ACTUALLY STRIP THE STATES OF POWER TO GOVERN, CENTRALIZING ALL POWER IN
THE FEDERAL GOVERNMENT.  TO THIS HE WAS OPPOSED.  HIS VIEWS ARE IN PART
REFLECTED BY HIS OWN REMARKS AND THE ANSWERS TO HIM BY MR. WILSON.  MR.
BINGHAM SAID, IN PART: 

"  ...  I DO NOT OPPOSE ANY LEGISLATION WHICH IS AUTHORIZED BY THE
CONSTITUTION OF MY COUNTRY TO ENFORCE IN ITS LETTER AND ITS SPIRIT THE
BILL OF RIGHTS AS EMBODIED IN THAT CONSTITUTION.  I KNOW THAT THE
ENFORCEMENT OF THE BILL OF RIGHTS IS THE WANT OF THE REPUBLIC.  I KNOW
IF IT HAD BEEN ENFORCED IN GOOD FAITH IN EVERY STATE OF THE UNION THE
CALAMITIES AND CONFLICTS AND CRIMES AND SACRIFICES OF THE PAST FIVE
YEARS WOULD HAVE BEEN IMPOSSIBLE. 

"BUT I FEEL THAT I AM JUSTIFIED IN SAYING, IN VIEW OF THE TEXT OF THE
CONSTITUTION OF MY COUNTRY, IN VIEW OF ALL ITS PAST INTERPRETATIONS, IN
VIEW OF THE MANIFEST AND DECLARED INTENT OF THE MEN WHO FRAMED IT, THE
ENFORCEMENT OF THE BILL OF RIGHTS, TOUCHING THE LIFE, LIBERTY, AND
PROPERTY OF EVERY CITIZEN OF THE REPUBLIC WITHIN EVERY ORGANIZED STATE
OF THE UNION, IS OF THE RESERVE POWERS OF THE STATES, TO BE ENFORCED BY
STATE TRIBUNALS  ... 

"  ...  I AM WITH HIM IN AN EARNEST DESIRE TO HAVE THE BILL OF RIGHTS
IN YOUR CONSTITUTION ENFORCED EVERYWHERE.  BUT I ASK THAT IT BE
ENFORCED IN ACCORDANCE WITH THE CONSTITUTION OF MY COUNTRY. 

     .         .        .         .         . 

"  ...  I SUBMIT THAT THE TERM CIVIL RIGHTS INCLUDES EVERY RIGHT THAT
PERTAINS TO THE CITIZEN UNDER THE CONSTITUTION, LAWS, AND GOVERNMENT OF
THIS COUNTRY.  ... 

     .         .         .         .         . 

"  ...  THE LAW IN EVERY STATE SHOULD BE JUST; IT SHOULD BE NO
RESPECTER OF PERSONS.  IT IS OTHERWISE NOW, AND IT HAS BEEN OTHERWISE
FOR MANY YEARS IN MANY OF THE STATES OF THE UNION.  I SHOULD REMEDY
THAT NOT BY AN ARBITRARY ASSUMPTION OF POWER, BUT BY AMENDING THE
CONSTITUTION OF THE UNITED STATES, EXPRESSLY PROHIBITING THE STATES
FROM ANY SUCH ABUSE OF POWER IN THE FUTURE.  ...  "           .
.         .         .         . 

"IF THE BILL OF RIGHTS, AS HAS BEEN SOLEMNLY RULED BY THE SUPREME
COURT OF THE UNITED STATES, DOES NOT LIMIT THE POWERS OF STATES AND
PROHIBIT SUCH GROSS INJUSTICE BY STATES, IT DOES LIMIT THE POWER OF
CONGRESS AND PROHIBIT ANY SUCH LEGISLATION BY CONGRESS. 

     .         .         .         .         . 

"...  THE CARE OF THE PROPERTY, THE LIBERTY, AND THE LIFE OF THE
CITIZEN, UNDER THE SOLEMN SANCTION OF AN OATH IMPOSED BY YOUR FEDERAL
CONSTITUTION, IS IN THE STATES, AND NOT IN THE FEDERAL GOVERNMENT.  I
HAVE SOUGHT TO EFFECT NO CHANGE IN THAT RESPECT IN THE CONSTITUTION OF
THE COUNTRY.  I HAVE ADVOCATED HERE AN AMENDMENT WHICH WOULD ARM
CONGRESS WITH THE POWER TO COMPEL OBEDIENCE TO THE OATH, AND PUNISH ALL
VIOLATIONS BY STATE OFFICERS OF THE BILL OF RIGHTS, BUT LEAVING THOSE
OFFICERS TO DISCHARGE THE DUTIES ENJOINED UPON THEM AS CITIZENS OF THE
UNITED STATES BY THAT OATH AND BY THAT CONSTITUTION.  ...  "  CONG.
GLOBE, SUPRA, 1291-1292. 

MR. WILSON, HOUSE SPONSOR OF THE CIVIL RIGHTS BILL, ANSWERED MR.
BINGHAM'S OBJECTIONS TO IT WITH THESE REMARKS: 

"THE GENTLEMAN FROM OHIO TELLS THE HOUSE THAT CIVIL RIGHTS INVOLVE
ALL THE RIGHTS THAT CITIZENS HAVE UNDER THE GOVERNMENT; THAT IN THE
TERM ARE EMBRACED THOSE RIGHTS WHICH BELONG TO THE CITIZEN OF THE
UNITED STATES AS SUCH, AND THOSE WHICH BELONG TO A CITIZEN OF A STATE
AS SUCH; AND THAT THIS BILL IS NOT INTENDED MERELY TO ENFORCE EQUALITY
OF RIGHTS, SO FAR AS THEY RELATE TO CITIZENS OF THE UNITED STATES, BUT
INVADES THE STATES TO ENFORCE EQUALITY OF RIGHTS IN RESPECT TO THOSE
THINGS WHICH PROPERLY AND RIGHTFULLY DEPEND ON STATE REGULATIONS AND
LAWS.  ... 

"  ...  I FIND IN THE BILL OF RIGHTS WHICH THE GENTLEMAN DESIRES TO
HAVE ENFORCED BY AN AMENDMENT TO THE CONSTITUTION THAT 'NO PERSON SHALL
BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW.' 
I UNDERSTAND THAT THESE CONSTITUTE THE CIVIL RIGHTS BELONGING TO THE
CITIZENS IN CONNECTION WITH THOSE WHICH ARE NECESSARY FOR THE
PROTECTION AND MAINTENANCE AND PERFECT ENJOYMENT OF THE RIGHTS THUS
SPECIFICALLY NAMED, AND THESE ARE THE RIGHTS TO WHICH THIS BILL
RELATES, HAVING NOTHING TO DO WITH SUBJECTS SUBMITTED TO THE CONTROL OF
THE SEVERAL STATES."  CONG. GLOBE, SUPRA AT 1294. 

IN VETOING THE CIVIL RIGHTS BILL, PRESIDENT JOHNSON SAID AMONG OTHER
THINGS THAT THE BILL WAS UNCONSTITUTIONAL FOR MANY OF THE SAME REASONS
ADVANCED BY MR. BINGHAM: 

"HITHERTO EVERY SUBJECT EMBRACED IN THE ENUMERATION OF RIGHTS
CONTAINED IN THIS BILL HAS BEEN CONSIDERED AS EXCLUSIVELY BELONGING TO
THE STATES.  ...  AS RESPECTS THE TERRITORIES, THEY COME WITHIN THE
POWER OF CONGRESS, FOR AS TO THEM, THE LAW-MAKING POWER IS THE FEDERAL
POWER; BUT AS TO THE STATES NO SIMILAR PROVISIONS EXIST, VESTING IN
CONGRESS THE POWER 'TO MAKE RULES AND REGULATIONS' FOR THEM."  CONG.
GLOBE, SUPRA, 1679, 1680. 

THE BILL, HOWEVER, WAS PASSED OVER PRESIDENT JOHNSON'S VETO AND IN
SPITE OF THE CONSTITUTIONAL OBJECTIONS OF BINGHAM AND OTHERS.  CONG.
GLOBE, SUPRA, 1809, 1861. 

                       IV. 

THEREAFTER THE SCENE CHANGED BACK TO THE COMMITTEE ON
RECONSTRUCTION.  THERE MR. STEVENS HAD PROPOSED AN AMENDMENT, SEC. 1 OF
WHICH PROVIDED "NO DISCRIMINATION SHALL BE MADE BY ANY STATE, NOR BY
THE UNITED STATES, AS TO THE CIVIL RIGHTS OF PERSONS BECAUSE OF RACE,
COLOR, OR PREVIOUS CONDITION OF SERVITUDE."  JOURNAL, 28.  MR. BINGHAM
PROPOSED AN ADDITIONAL SECTION PROVIDING THAT "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." 
JOURNAL, 30.  AFTER THE COMMITTEE HAD TWICE DECLINED TO RECOMMEND MR.
BINGHAM'S PROPOSAL, ON APRIL 28 IT WAS ACCEPTED BY THE COMMITTEE,
SUBSTANTIALLY IN THE FORM HE HAD PROPOSED IT, AS SEC. 1 OF THE
RECOMMENDED AMENDMENT.  JOURNAL, 44. 

                                  V. 

IN INTRODUCING THE PROPOSED AMENDMENT TO THE HOUSE ON MAY 8, 1866,
MR. STEVENS SPEAKING FOR THE COMMITTEE SAID: 

"THE FIRST SECTION (OF THE PROPOSED AMENDMENT) PROHIBITS THE STATES
FROM ABRIDGING THE PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED
STATES, OR UNLAWFULLY DEPRIVING THEM OF LIFE, LIBERTY, OR PROPERTY, OR
OF DENYING TO ANY PERSON WITHIN THEIR JURISDICTION THE 'EQUAL'
PROTECTION OF THE LAWS. 

"I CAN HARDLY BELIEVE THAT ANY PERSON CAN BE FOUND WHO WILL NOT ADMIT
THAT EVERY ONE OF THESE PROVISIONS IS JUST.  THEY ARE ALL ASSERTED, IN
SOME FORM OR OTHER, IN OUR DECLARATION OR ORGANIC LAW.  BUT THE
CONSTITUTION LIMITS ONLY THE ACTION OF CONGRESS, AND IS NOT A
LIMITATION ON THE STATES.  THIS AMENDMENT SUPPLIES THAT DEFECT, AND
ALLOWS CONGRESS TO CORRECT THE UNJUST LEGISLATION OF THE STATES, SO FAR
THAT THE LAW WHICH OPERATES UPON ONE MAN SHALL OPERATE EQUALLY UPON
ALL."  CONG. GLOBE, 2459.  FN2 

ON MAY 23, 1866, SENATOR HOWARD INTRODUCED THE PROPOSED AMENDMENT TO
THE SENATE IN THE ABSENCE OF SENATOR FESSENDEN WHO WAS SICK.  SENATOR
HOWARD PREFACED HIS REMARKS BY STATING: 

"I  ...  PRESENT TO THE SENATE  ...  THE VIEWS AND THE MOTIVES (OF
THE RECONSTRUCTION COMMITTEE) ...  ONE RESULT OF THEIR INVESTIGATIONS
HAS BEEN THE JOINT RESOLUTION FOR THE AMENDMENT OF THE CONSTITUTION OF
THE UNITED STATES NOW UNDER CONSIDERATION.  ... 

"THE FIRST SECTION OF THE AMENDMENT  ...  SUBMITTED FOR THE
CONSIDERATION OF THE TWO HOUSES RELATES TO THE PRIVILEGES AND
IMMUNITIES OF CITIZENS OF THE SEVERAL STATES, AND TO THE RIGHTS AND
PRIVILEGES OF ALL PERSONS, WHETHER CITIZENS OR OTHERS, UNDER THE LAWS
OF THE UNITED STATES.  ... 

"IT WILL BE OBSERVED THAT THIS IS A GENERAL PROHIBITION UPON ALL THE
STATES, AS SUCH, FROM ABRIDGING THE PRIVILEGES AND IMMUNITIES OF THE
CITIZENS OF THE UNITED STATES.  THAT IS ITS FIRST CLAUSE, AND I REGARD
IT AS VERY IMPORTANT.  IT ALSO PROHIBITS EACH ONE OF THE STATES FROM
DEPRIVING ANY PERSON OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS
OF LAW, OR DENYING TO ANY PERSON WITHIN THE JURISDICTION OF THE STATE
THE EQUAL PROTECTION OF ITS LAWS. 

     .         .         .       .         . 

"IT WOULD BE A CURIOUS QUESTION TO SOLVE WHAT ARE THE PRIVILEGES AND
IMMUNITIES OF CITIZENS OF EACH OF THE STATES IN THE SEVERAL STATES. 
...  I AM NOT AWARE THAT THE SUPREME COURT HAVE EVER UNDERTAKEN TO
DEFINE EITHER THE NATURE OR EXTENT OF THE PRIVILEGES AND IMMUNITIES
THUS GUARANTIED.  ...  BUT WE MAY GATHER SOME INTIMATION OF WHAT
PROBABLY WILL BE THE OPINION OF THE JUDICIARY BY REFERRING TO  ...
CORFIELD VS. CORYELL  ...  4 WASHINGTON'S CIRCUIT COURT REPORTS, PAGE
380.  (HERE SENATOR HOWARD QUOTED AT LENGTH FROM THAT OPINION.) 

"SUCH IS THE CHARACTER OF THE PRIVILEGES AND IMMUNITIES SPOKEN OF IN
THE SECOND SECTION OF THE FOURTH ARTICLE OF THE CONSTITUTION.  TO THESE
PRIVILEGES AND IMMUNITIES, WHATEVER THEY MAY BE - FOR THEY ARE NOT AND
CANNOT BE FULLY DEFINED IN THEIR ENTIRE EXTENT AND PRECISE NATURE - TO
THESE SHOULD BE ADDED THE PERSONAL RIGHTS GUARANTIED AND SECURED BY THE
FIRST EIGHT AMENDMENTS OF THE CONSTITUTION; SUCH AS THE FREEDOM OF
SPEECH AND OF THE PRESS; THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE
AND PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES, A RIGHT
APPERTAINING TO EACH AND ALL THE PEOPLE; THE RIGHT TO KEEP AND TO BEAR
ARMS; THE RIGHT TO BE EXEMPTED FROM THE QUARTERING OF SOLDIERS IN A
HOUSE WITHOUT THE CONSENT OF THE OWNER; THE RIGHT TO BE EXEMPT FROM
UNREASONABLE SEARCHES AND SEIZURES, AND FROM ANY SEARCH OR SEIZURE
EXCEPT BY VIRTUE OF A WARRANT ISSUED UPON A FORMAL OATH OR AFFIDAVIT;
THE RIGHT OF AN ACCUSED PERSON TO BE INFORMED OF THE NATURE OF THE
ACCUSATION AGAINST HIM, AND HIS RIGHT TO BE TRIED BY AN IMPARTIAL JURY
OF THE VICINAGE; AND ALSO THE RIGHT TO BE SECURE AGAINST EXCESSIVE BAIL
AND AGAINST CRUEL AND UNUSUAL PUNISHMENTS. 

"NOW, SIR, HERE IS A MASS OF PRIVILEGES, IMMUNITIES, AND RIGHTS, SOME
OF THEM SECURED BY THE SECOND SECTION OF THE FOURTH ARTICLE OF THE
CONSTITUTION, WHICH I HAVE RECITED, SOME BY THE FIRST EIGHT AMENDMENTS
OF THE CONSTITUTION; AND IT IS A FACT WELL WORTHY OF ATTENTION THAT THE
COURSE OF DECISION OF OUR COURTS AND THE PRESENT SETTLED DOCTRINE IS,
THAT ALL THESE IMMUNITIES, PRIVILEGES, RIGHTS, THUS GUARANTIED BY THE
CONSTITUTION OR RECOGNIZED BY IT, ARE SECURED TO THE CITIZENS SOLELY AS
A CITIZEN OF THE UNITED STATES AND AS A PARTY IN THEIR COURTS.  THEY DO
NOT OPERATE IN THE SLIGHTEST DEGREE AS A RESTRAINT OR PROHIBITION UPON
STATE LEGISLATION.  STATES ARE NOT AFFECTED BY THEM, AND IT HAS BEEN
REPEATEDLY HELD THAT THE RESTRICTION CONTAINED IN THE CONSTITUTION
AGAINST THE TAKING OF PRIVATE PROPERTY FOR PUBLIC USE WITHOUT JUST
COMPENSATION IS NOT A RESTRICTION UPON STATE LEGISLATION, BUT APPLIES
ONLY TO THE LEGISLATION OF CONGRESS. 

"NOW, SIR, THERE IS NO POWER GIVEN IN THE CONSTITUTION TO ENFORCE AND
TO CARRY OUT ANY OF THESE GUARANTEES.  THEY ARE NOT POWERS GRANTED BY
THE CONSTITUTION TO CONGRESS, AND OF COURSE DO NOT COME WITHIN THE
SWEEPING CLAUSE OF THE CONSTITUTION AUTHORIZING CONGRESS TO PASS ALL
LAWS NECESSARY AND PROPER FOR CARRYING OUT THE FOREGOING OR GRANTED
POWERS, BUT THEY STAND SIMPLY AS A BILL OF RIGHTS IN THE CONSTITUTION,
WITHOUT POWER ON THE PART OF CONGRESS TO GIVE THEM FULL EFFECT; WHILE
AT THE SAME TIME THE STATES ARE NOT RESTRAINED FROM VIOLATING THE
PRINCIPLES EMBRACED IN THEM EXCEPT BY THEIR OWN LOCAL CONSTITUTIONS,
WHICH MAY BE ALTERED FROM YEAR TO YEAR.  THE GREAT OBJECT OF THE FIRST
STATES AND COMPEL THEM AT ALL TIMES TO RESPECT THESE GREAT FUNDAMENTAL
GUARANTEES."  CONG. GLOBE, SUPRA, 2765. 

MR. BINGHAM HAD CLOSED THE DEBATE IN THE HOUSE ON THE PROPOSAL PRIOR
TO ITS CONSIDERATION BY THE SENATE.  HE SAID IN PART: 

"  ...  (MANY) INSTANCES OF STATE INJUSTICE AND OPPRESSION HAVE
ALREADY OCCURRED IN THE STATE LEGISLATION OF THIS UNION, OF FLAGRANT
VIOLATIONS OF THE GUARANTIED PRIVILEGES OF CITIZENS OF THE UNITED
STATES, FOR WHICH THE NATIONAL GOVERNMENT FURNISHED AND COULD FURNISH
BY LAW NO REMEDY WHATEVER.  CONTRARY TO THE EXPRESS LETTER OF YOUR
CONSTITUTION, 'CRUEL AND UNUSUAL PUNISHMENTS' HAVE BEEN INFLICTED UNDER
STATE LAWS WITHIN THIS UNION UPON CITIZENS, NOT ONLY FOR CRIMES
COMMITTED, BUT FOR SACRED DUTY DONE, FOR WHICH AND AGAINST WHICH THE
GOVERNMENT OF THE UNITED STATES HAD PROVIDED NO REMEDY AND COULD
PROVIDE NONE. 

     .         .         .         .  . 

"IT WAS AN APPROBRIUM TO THE REPUBLIC THAT FOR FIDELITY TO THE UNITED
STATES THEY COULD NOT BY NATIONAL LAW BE PROTECTED AGAINST THE
DEGRADING PUNISHMENT INFLICTED ON SLAVES AND FELONS BY STATE LAW.  THAT
GREAT WANT OF THE CITIZEN AND STRANGER, PROTECTION BY NATIONAL LAW FROM
UNCONSTITUTIONAL STATE ENACTMENTS, IS SUPPLIED BY THE FIRST SECTION OF
THIS AMENDMENT."  CONG. GLOBE, SUPRA, 2542-2543. 

BOTH PROPONENTS AND OPPONENTS OF SEC. 1 OF THE AMENDMENT SPOKE OF ITS
RELATION TO THE CIVIL RIGHTS BILL WHICH HAD BEEN PREVIOUSLY PASSED OVER
THE PRESIDENT'S VETO.  SOME CONSIDERED THAT THE AMENDMENT SETTLED ANY
DOUBTS THERE MIGHT BE AS TO THE CONSTITUTIONALITY OF THE CIVIL RIGHTS
BILL.  CONG. GLOBE, 2511, 2896.  OTHERS MAINTAINED THAT THE CIVIL
RIGHTS BILL WOULD BE UNCONSTITUTIONAL UNLESS AND UNTIL THE AMENDMENT
WAS ADOPTED.  CONG. GLOBE, 2461, 2502, 2506, 2513, 2961.  SOME THOUGHT
THAT AMENDMENT WAS NOTHING BUT THE CIVIL RIGHTS "IN ANOTHER SHAPE." 
CONG. GLOBE, 2459, 2462, 2465, 2467, 2498, 2502.  ONE ATTITUDE OF THE
OPPONENTS WAS EPITOMIZED BY A STATEMENT BY MR. SHANKLIN THAT THE
AMENDMENT STRIKES "DOWN THE RESERVED RIGHTS OF THE STATES,  ...
DECLARED BY THE FRAMERS OF THE CONSTITUTION TO BELONG TO THE STATES
EXCLUSIVELY AND NECESSARY FOR THE PROTECTION OF THE PROPERTY AND
LIBERTY OF THE PEOPLE.  THE FIRST SECTION OF THIS PROPOSED AMENDMENT
...  IS TO STRIKE DOWN THOSE STATE RIGHTS AND INVEST ALL POWER IN THE
GENERAL GOVERNMENT."  CONG. GLOBE, SUPRA, 2500.  SEE ALSO CONG. GLOBE,
SUPRA, 2530, 2538. 

EXCEPT FOR THE ADDITION OF THE FIRST SENTENCE OF SEC. 1 WHICH DEFINED
CITIZENSHIP, CONG. GLOBE, SUPRA, 2869, THE AMENDMENT WEATHERED THE
SENATE DEBATE WITHOUT SUBSTANTIAL CHANGE.  IT IS SIGNIFICANT THAT
SEVERAL REFERENCES WERE MADE IN THE SENATE DEBATE TO MR. BINGHAM'S
GREAT RESPONSIBILITY FOR SEC. 1 OF THE AMENDMENT AS PASSED BY THE
HOUSE.  SEE E.G. CONG. GLOBE, SUPRA, 2896. 

                                 VI. 

ALSO JUST PRIOR TO THE FINAL VOTES IN BOTH HOUSES PASSING THE
RESOLUTION OF ADOPTION, THE REPORT OF THE JOINT COMMITTEE ON
RECONSTRUCTION, H.R. REP. NO. 30, 39TH CONG., 1ST SESS. (1866); SEN.
REP. NO. 112, 39TH CONG., 1ST SESS. (1866), WAS SUBMITTED.  CONG.
GLOBE, SUPRA, 3038, 3051.  THIS REPORT WAS APPARENTLY NOT DISTRIBUTED
IN TIME TO INFLUENCE THE DEBATES IN CONGRESS.  BUT A STUDENT OF THE
PERIOD REPORTS THAT 150,000 COPIES OF THE REPORT AND THE TESTIMONY
WHICH IT CONTAINED WERE PRINTED IN ORDER THAT SENATORS AND
REPRESENTATIVES MIGHT DISTRIBUTE THEM AMONG THEIR CONSTITUENTS. 
APPARENTLY THE REPORT WAS WIDELY REPRINTED IN THE PRESS AND USED AS A
CAMPAIGN DOCUMENT IN THE ELECTION OF 1866.  KENDRICK, JOURNAL OF THE
JOINT COMMITTEE ON RECONSTRUCTION (1914) 265.  ACCORDING TO KENDRICK
THE REPORT WAS "EAGERLY  ...  PERUSED" FOR INFORMATION CONCERNING
"CONDITIONS IN THE SOUTH."  KENDRICK, SUPRA, 265. 

THE REPORT OF THE COMMITTEE HAD SAID WITH REFERENCE TO THE NECESSITY
OF AMENDING THE CONSTITUTION:    "  ...  (THE) SO-CALLED CONFEDERATE
STATES ARE NOT, AT PRESENT, ENTITLED TO REPRESENTATION IN THE CONGRESS
OF THE UNITED STATES; THAT, BEFORE ALLOWING SUCH REPRESENTATION,
ADEQUATE SECURITY FOR FUTURE PEACE AND SAFETY SHOULD BE REQUIRED; THAT
THIS CAN ONLY BE FOUND IN SUCH CHANGES OF THE ORGANIC LAW AS SHALL
DETERMINE THE CIVIL RIGHTS AND PRIVILEGES OF ALL CITIZENS IN ALL PARTS
OF THE REPUBLIC  ...  "  REPORT, SUPRA, XXI. 

AMONG THE EXAMPLES RECITED BY THE TESTIMONY WERE DISCRIMINATION
AGAINST NEGRO CHURCHES AND PREACHERS BY LOCAL OFFICIALS AND CRIMINAL
PUNISHMENT OF THOSE WHO ATTENDED OBJECTIONABLE CHURCH SERVICES. 
REPORT, PART II, 52.  TESTIMONY ALSO CITED RECENTLY ENACTED LOUISIANA
LAWS WHICH MADE IT "A HIGHLY PENAL OFFENCE FOR ANYONE TO DO ANYTHING
THAT MIGHT BE CONSTRUED INTO ENCOURAGING THE BLACKS TO LEAVE THE
PERSONS WITH WHOM THEY HAD MADE CONTRACTS FOR LABOR  ...  "  REPORT,
PART III, P. 25.  FN3 

FLACK, SUPRA AT 142, WHO CANVASSED NEWSPAPER COVERAGE AND SPEECHES
CONCERNING THE POPULAR DISCUSSION OF THE ADOPTION OF THE FOURTEENTH
AMENDMENT, INDICATES THAT SENATOR HOWARD'S SPEECH STATING THAT ONE OF
THE PURPOSES OF THE FIRST SECTION WAS TO GIVE CONGRESS POWER TO ENFORCE
THE BILL OF RIGHTS, AS WELL AS EXTRACTS AND DIGESTS OF OTHER SPEECHES
WERE PUBLISHED WIDELY IN THE PRESS.  FLACK SUMMARIZES HIS OBSERVATION
THAT 

"THE DECLARATIONS AND STATEMENTS OF NEWSPAPERS, WRITERS AND SPEAKERS,
...  SHOW VERY CLEARLY, ...  THE GENERAL OPINION HELD IN THE NORTH. 
THAT OPINION, BRIEFLY STATED, WAS THAT THE AMENDMENT EMBODIED THE CIVIL
RIGHTS BILL AND GAVE CONGRESS THE POWER TO DEFINE AND SECURE THE
PRIVILEGES OF CITIZENS OF THE UNITED STATES.  THERE DOES NOT SEEM TO
HAVE BEEN ANY STATEMENT AT ALL AS TO WHETHER THE FIRST EIGHT AMENDMENTS
WERE TO BE MADE APPLICABLE TO THE STATES OR NOT, WHETHER THE PRIVILEGES
GUARANTEED BY THOSE AMENDMENTS WERE TO BE CONSIDERED AS PRIVILEGES
SECURED BY THE AMENDMENT, BUT IT MAY BE INFERRED THAT THIS WAS
RECOGNIZED TO BE THE LOGICAL RESULT BY THOSE WHO THOUGHT THAT THE
FREEDOM OF SPEECH AND OF THE PRESS AS WELL AS DUE PROCESS OF LAW,
INCLUDING A JURY TRIAL, WERE SECURED BY IT."  FLACK, SUPRA, 153-154. 

       VII. 

FORMAL STATEMENTS SUBSEQUENT TO ADOPTION OF THE AMENDMENT BY THE
CONGRESSIONAL LEADERS WHO PARTICIPATED IN THE DRAFTING AND ENACTMENT OF
IT ARE SIGNIFICANT.  IN 1871, A BILL WAS BEFORE THE HOUSE WHICH
CONTEMPLATED ENFORCEMENT OF THE FOURTEENTH AMENDMENT.  MR. GARFIELD,
WHO HAD PARTICIPATED IN THE DEBATES ON THE FOURTEENTH AMENDMENT IN
1866, SAID: 

"I NOW COME TO CONSIDER  ...  FOR IT IS THE BASIS OF THE PENDING
BILL, THE FOURTEENTH AMENDMENT.  I ASK THE ATTENTION OF THE HOUSE TO
THE FIRST SECTION OF THAT AMENDMENT, AS TO ITS SCOPE AND MEANING.  I
HOPE GENTLEMEN WILL BEAR IN MIND THAT THIS DEBATE, IN WHICH SO MANY
HAVE TAKEN PART, WILL BECOME HISTORICAL, AS THE EARLIEST LEGISLATIVE
CONSTRUCTION GIVEN TO THIS CLAUSE OF THE AMENDMENT.  NOT ONLY THE WORDS
WHICH WE PUT INTO THE LAW, BUT WHAT SHALL BE SAID HERE IN THE WAY OF
DEFINING AND INTERPRETING THE MEANING OF THE CLAUSE, MAY GO FAR TO
SETTLE ITS INTERPRETATION AND ITS VALUE TO THE COUNTRY HEREAFTER." 
CONG. GLOBE, 42D CONG., 1ST SESS. (1871) APP. 150. 

"THE NEXT CLAUSE OF THE SECTION UNDER DEBATE DECLARES:  'NOR SHALL
ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE
PROCESS OF LAW.' 

"THIS IS COPIED FROM THE FIFTH ARTICLE OF AMENDMENTS, WITH THIS
DIFFERENCE:  AS IT STOOD IN THE FIFTH ARTICLE IT OPERATED ONLY AS A
RESTRAINT UPON CONGRESS, WHILE HERE IT IS A DIRECT RESTRAINT UPON THE
GOVERNMENTS OF THE STATES.  THE ADDITION IS VERY VALUABLE.  IT REALIZES
THE FULL FORCE AND EFFECT OF THE CLAUSE IN MAGNA CHARTA, FROM WHICH IT
WAS BORROWED; AND THERE IS NOW NO POWER IN EITHER THE STATE OR THE
NATIONAL GOVERNMENT TO DEPRIVE ANY PERSON OF THOSE GREAT FUNDAMENTAL
RIGHTS ON WHICH ALL TRUE FREEDOM RESTS, THE RIGHTS OF LIFE, LIBERTY,
AND PROPERTY, EXCEPT BY DUE PROCESS OF LAW; THAT IS, BY AN IMPARTIAL
TRIAL ACCORDING TO THE LAWS OF THE LAND.  ...  " CONG. GLOBE, SUPRA, AT
152-3. 

A FEW DAYS EARLIER, IN A DEBATE ON THIS SAME BILL TO ENFORCE THE
FOURTEENTH AMENDMENT, MR. BINGHAM, STILL A MEMBER OF CONGRESS, HAD
STATED AT LENGTH HIS UNDERSTANDING OF THE PURPOSE OF THE FOURTEENTH
AMENDMENT AS HE HAD ORIGINALLY CONCEIVED IT: 

"MR. SPEAKER, THE HONORABLE GENTLEMAN FROM ILLINOIS (MR. FARNSWORTH)
DID ME UNWITTINGLY, GREAT SERVICE, WHEN HE VENTURED TO ASK ME WHY I
CHANGED THE FORM OF THE FIRST SECTION OF THE FOURTEENTH ARTICLE OF
AMENDMENT FROM THE FORM IN WHICH I REPORTED IT TO THE HOUSE IN
FEBRUARY, 1866, FROM THE COMMITTEE ON RECONSTRUCTION.  I WILL ANSWER
THE GENTLEMAN, SIR, AND ANSWER HIM TRUTHFULLY.  I HAD THE HONOR TO
FRAME THE AMENDMENT AS REPORTED IN FEBRUARY, 1866, AND THE FIRST
IN THE FOURTEENTH ARTICLE OF THE AMENDMENTS TO THE CONSTITUTION OF THE
UNITED STATES, SAVE THE INTRODUCTORY CLAUSE DEFINING CITIZENS.  THE
CLAUSE DEFINING CITIZENS NEVER CAME FROM THE JOINT COMMITTEE ON
RECONSTRUCTION, BUT THE RESIDUE OF THE FIRST SECTION OF THE FOURTEENTH
AMENDMENT DID COME FROM THE COMMITTEE PRECISELY AS I WROTE IT AND
OFFERED IT IN THE COMMITTEE ON RECONSTRUCTION, AND PRECISELY AS IT NOW
STANDS IN THE CONSTITUTION  ... 

"THAT IS THE GRANT OF POWER.  IT IS FULL AND COMPLETE.  THE GENTLEMAN
SAYS THAT AMENDMENT DIFFERS FROM THE AMENDMENT REPORTED BY ME IN
FEBRUARY; DIFFERS FROM THE PROVISION INTRODUCED AND WRITTEN BY ME, NOW
IN THE FOURTEENTH ARTICLE OF AMENDMENTS.  IT DIFFERS IN THIS:  THAT IT
IS, AS IT NOW STANDS IN THE CONSTITUTION, MORE COMPREHENSIVE THAN AS IT
WAS FIRST PROPOSED AND REPORTED IN FEBRUARY, 1866.  IT EMBRACES ALL AND
MORE THAN DID THE FEBRUARY PROPOSITION. 

     .         .         .         .         . 

"THE GENTLEMAN VENTURED UPON SAYING THAT THIS AMENDMENT DOES NOT
EMBRACE ALL OF THE AMENDMENT PREPARED AND REPORTED BY ME WITH THE
CONSENT OF THE COMMITTEE IN FEBRUARY, 1866.  THE AMENDMENT REPORTED IN
FEBRUARY, AND TO WHICH THE GENTLEMAN REFERS, IS AS FOLLOWS:  'THE
CONGRESS SHALL HAVE POWER TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND
PROPER TO SECURE TO THE CITIZENS OF EACH STATE ALL THE PRIVILEGES AND
IMMUNITIES OF CITIZENS IN THE SEVERAL STATES, AND TO ALL PERSONS IN THE
SEVERAL STATES EQUAL PROTECTION IN THE RIGHTS OF LIFE, LIBERTY, AND
PROPERTY.' 

"THAT IS THE AMENDMENT, AND THE WHOLE OF IT, AS REPORTED IN FEBRUARY,
1866.  THAT AMENDMENT NEVER WAS REJECTED BY THE HOUSE OR SENATE.  A
MOTION WAS MADE TO LAY IT ON THE TABLE, WHICH WAS A TEST VOTE ON THE
MERITS OF IT, AND THE MOTION FAILED  ... I CONSENTED TO AND VOTED FOR
THE MOTION TO POSTPONE IT  ...  AFTERWARD, IN THE JOINT COMMITTEE ON
RECONSTRUCTION, I INTRODUCED THIS AMENDMENT, IN THE PRECISE FORM, AS I
HAVE STATED, IN WHICH IT WAS REPORTED, AND AS IT NOW STANDS IN THE
CONSTITUTION OF MY COUNTRY.  ... 

     .         .         .         .      . 

"I ANSWER THE GENTLEMAN, HOW I CAME TO CHANGE THE FORM OF FEBRUARY TO
THE WORDS NOW IN THE FIRST SECTION OF THE FOURTEENTH ARTICLE OF
AMENDMENT, AS THEY STAND, AND I TRUST WILL FOREVER STAND, IN THE
CONSTITUTION OF MY COUNTRY.  I HAD READ - AND THAT IS WHAT INDUCED ME
TO ATTEMPT TO IMPOSE BY CONSTITUTIONAL AMENDMENTS NEW LIMITATIONS UPON
THE POWER OF THE STATES - THE GREAT DECISION OF MARSHALL IN BARRON VS.
THE MAYOR AND CITY COUNCIL OF BALTIMORE, WHEREIN THE CHIEF JUSTICE
SAID, IN OBEDIENCE TO HIS OFFICIAL OATH AND THE CONSTITUTION AS IT THEN
WAS: 'THE AMENDMENTS (TO THE CONSTITUTION) CONTAIN NO EXPRESSION
INDICATING AN INTENTION TO APPLY THEM TO THE STATE GOVERNMENTS.  THIS
COURT CANNOT SO APPLY THEM.'  - 7 PETERS P. 250. 

"IN THIS CASE THE CITY HAD TAKEN PRIVATE PROPERTY FOR PUBLIC USE,
WITHOUT COMPENSATION AS ALLEGED, AND THERE WAS NO REDRESS FOR THE WRONG
IN THE SUPREME COURT OF THE UNITED STATES; AND ONLY FOR THIS REASON,
THE FIRST EIGHT AMENDMENTS WERE NOT LIMITATIONS ON THE POWER OF THE
STATES. 

"AND SO AFTERWARD, IN THE CASE OF THE LESSEE OF LIVINGSTONE VS. MOORE
...  THE COURT RULED, 'IT IS NOW SETTLED THAT THE AMENDMENTS (TO THE
CONSTITUTION) DO NOT EXTEND TO THE STATES.'  THEY WERE BUT LIMITATIONS
UPON CONGRESS.  JEFFERSON WELL SAID OF THE FIRST EIGHT ARTICLES OF
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES, THEY CONSTITUTE
THE AMERICAN BILL OF RIGHTS.  THOSE AMENDMENTS SECURED THE CITIZENS
AGAINST ANY DEPRIVATION OF ANY ESSENTIAL RIGHTS OF PERSON BY ANY ACT OF
CONGRESS, AND AMONG OTHER THINGS THEREBY THEY WERE SECURED IN THEIR
PERSONS, HOUSES, PAPERS, AND EFFECTS AGAINST UNREASONABLE SEARCHES AND
SEIZURES, IN THE INVIOLABILITY OF THEIR HOMES IN TIMES OF PEACE, BY
DECLARING THAT NO SOLDIER SHALL IN TIME OF PEACE BE QUARTERED IN ANY
HOUSE WITHOUT THE CONSENT OF THE OWNER.  THEY SECURED TRIAL BY JURY;
THEY SECURED THE RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF
ACCUSATIONS WHICH MIGHT IN ANY CASE BE MADE AGAINST THEM; THEY SECURED
COMPULSORY PROCESS FOR WITNESSES, AND TO BE HEARD IN DEFENSE BY
COUNSEL.  THEY SECURED, IN SHORT, ALL THE RIGHTS DEAR TO THE AMERICAN
CITIZEN.  AND YET IT WAS DECIDED, AND RIGHTFULLY, THAT THESE
AMENDMENTS, DEFINING AND PROTECTING THE RIGHTS OF MEN AND CITIZENS,
WERE ONLY LIMITATIONS ON THE POWER OF CONGRESS, NOT ON THE POWER OF THE
STATES. 

"IN REEXAMINING THAT CASE OF BARRON, MR. SPEAKER, AFTER MY STRUGGLE
IN THE HOUSE IN FEBRUARY, 1866, TO WHICH THE GENTLEMAN HAS ALLUDED, I
NOTED AND APPREHENDED AS I NEVER DID BEFORE, CERTAIN WORDS IN THAT
OPINION OF MARSHALL.  REFERRING TO THE FIRST EIGHT ARTICLES OF
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES, THE CHIEF JUSTICE
SAID:  'HAD THE FRAMERS OF THESE AMENDMENTS INTENDED THEM TO BE
LIMITATIONS ON THE POWERS OF THE STATE GOVERNMENTS THEY WOULD HAVE
IMITATED THE FRAMERS OF THE ORIGINAL CONSTITUTION, AND HAVE EXPRESSED
THAT INTENTION.'  BARRON VS. THE MAYOR, &C., 7 PETERS, 250. 

"ACTING UPON THIS SUGGESTION I DID IMITATE THE FRAMERS OF THE
ORIGINAL CONSTITUTION.  AS THEY HAD SAID 'NO STATE SHALL EMIT BILLS OF
CREDIT, PASS ANY BILL OF ATTAINDER, EX POST FACTO LAW, OR LAW IMPAIRING
THE OBLIGATIONS OF CONTRACTS;' IMITATING THEIR EXAMPLE AND IMITATING IT
TO THE LETTER, I PREPARED THE PROVISION OF THE FIRST SECTION OF THE
FOURTEENTH AMENDMENT AS IT STANDS IN THE CONSTITUTION, AS FOLLOWS:  'NO
STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES
OR IMMUNITIES OF THE 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.' 

"I HOPE THE GENTLEMAN NOW KNOWS WHY I CHANGED THE FORM OF THE
AMENDMENT OF FEBRUARY, 1866. 

"MR. SPEAKER, THAT THE SCOPE AND MEANING OF THE LIMITATIONS IMPOSED
BY THE FIRST SECTION, FOURTEENTH AMENDMENT OF THE CONSTITUTION MAY BE
MORE FULLY UNDERSTOOD, PERMIT ME TO SAY THAT THE PRIVILEGES AND
IMMUNITIES OF CITIZENS OF THE UNITED STATES, AS CONTRADISTINGUISHED
FROM CITIZENS OF A STATE, ARE CHIEFLY DEFINED IN THE FIRST EIGHT
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.  THOSE EIGHT
AMENDMENTS ARE AS FOLLOWS:  (HERE MR. BINGHAM RECITED VERBATIM THE
FIRST EIGHT ARTICLES.) 

"THESE EIGHT ARTICLES I HAVE SHOWN NEVER WERE LIMITATIONS UPON THE
POWER OF THE STATES, UNTIL MADE SO BY THE FOURTEENTH AMENDMENT.  THE
WORDS OF THAT AMENDMENT, 'NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH
SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED
STATES,' ARE AN EXPRESS PROHIBITION UPON EVERY STATE OF THE UNION,
WHICH MAY BE ENFORCED UNDER EXISTING LAWS OF CONGRESS, AND SUCH OTHER
LAWS FOR THEIR BETTER ENFORCEMENT AS CONGRESS MAY MAKE. 

"MR. SPEAKER, THAT DECISION IN THE FOURTH OF WASHINGTON'S CIRCUIT
COURT REPORTS, TO WHICH MY LEARNED COLLEAGUE  ...  HAS REFERRED IS ONLY
A CONSTRUCTION OF THE SECOND SECTION, FOURTH ARTICLE OF THE ORIGINAL
CONSTITUTION, TO WIT, 'THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO
ALL PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES.'  IN
THAT CASE THE COURT ONLY HELD THAT IN CIVIL RIGHTS THE STATE COULD NOT
REFUSE TO EXTEND TO CITIZENS OF OTHER STATES THE SAME GENERAL RIGHTS
SECURED TO ITS OWN. 

"IN THE CASE OF THE UNITED STATES VS. PRIMROSE, MR. WEBSTER SAID THAT
- 'FOR THE PURPOSES OF TRADE, IT IS EVIDENTLY NOT IN THE POWER OF ANY
STATE TO IMPOSE ANY HINDERANCE OR EMBARRASSMENT, &C., UPON CITIZENS OF
OTHER STATES, OR TO PLACE THEM, ON COMING THERE, UPON A DIFFERENT
FOOTING FROM HER OWN CITIZENS.'  - 6 WEBSTER'S WORKS, 112. 

"THE LEARNED JUSTICE STORY DECLARED THAT - 'THE INTENTION OF THE
CLAUSE ("THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL PRIVILEGES
AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES,") WAS TO CONFER ON
THE CITIZENS OF EACH STATE A GENERAL CITIZENSHIP, AND COMMUNICATED ALL
THE PRIVILEGES AND IMMUNITIES WHICH A CITIZEN OF THE SAME STATE WOULD
BE ENTITLED TO UNDER THE SAME CIRCUMSTANCES.'  - STORY ON THE
CONSTITUTION, VOL. 2, PAGE 605. 

"IS IT NOT CLEAR THAT OTHER AND DIFFERENT PRIVILEGES AND IMMUNITIES
THAN THOSE TO WHICH A CITIZEN OF A STATE WAS ENTITLED ARE SECURED BY
THE PROVISION OF THE FOURTEENTH ARTICLE, THAT NO STATE SHALL ABRIDGE
THE PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES, WHICH
ARE DEFINED IN THE EIGHT ARTICLES OF AMENDMENT, AND WHICH WERE NOT
LIMITATIONS ON THE POWER OF THE STATES BEFORE THE FOURTEENTH AMENDMENT
MADE THEM LIMITATIONS? 

"SIR, BEFORE THE RATIFICATION OF THE FOURTEENTH AMENDMENT, THE STATE
COULD DENY TO ANY CITIZEN THE RIGHT OF TRIAL BY JURY, AND IT WAS DONE. 
BEFORE THAT THE STATE COULD ABRIDGE THE FREEDOM OF THE PRESS, AND IT
WAS SO DONE IN HALF OF THE STATES OF THE UNION.  BEFORE THAT A STATE,
AS IN THE CASE OF THE STATE OF ILLINOIS, COULD MAKE IT A CRIME
PUNISHABLE BY FINE AND IMPRISONMENT FOR ANY CITIZEN WITHIN HER LIMITS,
IN OBEDIENCE TO THE INJUNCTION OF OUR DIVINE MASTER, TO HELP A SLAVE
WHO WAS READY TO PERISH; TO GIVE HIM SHELTER, OR BREAK WITH HIM HIS
CRUST OF BREAD.  THE VALIDITY OF THAT STATE RESTRICTION UPON THE RIGHTS
OF CONSCIENCE AND THE DUTY OF LIFE WAS AFFIRMED, TO THE SHAME AND
DISGRACE OF AMERICA, IN THE SUPREME COURT OF THE UNITED STATES; BUT
NEVERTHELESS AFFIRMED IN OBEDIENCE TO THE REQUIREMENTS OF THE
CONSTITUTION.  ...    "UNDER THE CONSTITUTION AS IT IS, NOT AS IT WAS,
AND BY FORCE OF THE FOURTEENTH AMENDMENT, NO STATE HEREAFTER CAN
IMITATE THE BAD EXAMPLE OF ILLINOIS, TO WHICH I HAVE REFERRED, NOR CAN
ANY STATE EVER REPEAT THE EXAMPLE OF GEORGIA AND SEND MEN TO THE
PENITENTIARY, AS DID THAT STATE, FOR TEACHING THE INDIAN TO READ THE
LESSONS OF THE NEW TESTAMENT, TO KNOW THAT NEW EVANGEL, 'THE PURE IN
HEART SHALL SEE GOD.' 

     .         .   .         .         . 

"  ...  YOU SAY IT IS CENTRALIZED POWER TO RESTRAIN BY LAW UNLAWFUL
COMBINATIONS IN STATES AGAINST THE CONSTITUTION AND CITIZENS OF THE
UNITED STATES, TO ENFORCE THE CONSTITUTION AND THE RIGHTS OF UNITED
STATES CITIZEN BY NATIONAL LAW, AND TO DISPERSE BY FORCE, IF NEED BE,
COMBINATIONS TOO POWERFUL TO BE OVERCOME BY JUDICIAL PROCESS, ENGAGED
IN TRAMPLING UNDERFOOT THE LIFE AND LIBERTY, OR DESTROYING THE PROPERTY
OF THE CITIZEN. 

     .         .         .         .        . 

"THE STATES NEVER HAD THE RIGHT, THOUGH THEY HAD THE POWER, TO
INFLICT WRONGS UPON FREE CITIZENS BY A DENIAL OF THE FULL PROTECTION OF
THE LAWS; BECAUSE ALL STATE OFFICIALS ARE BY THE CONSTITUTION REQUIRED
TO BE BOUND BY OATH OR AFFIRMATION TO SUPPORT THE CONSTITUTION.  AS I
HAVE ALREADY SAID, THE STATES DID DENY TO CITIZENS THE EQUAL PROTECTION
OF THE LAWS, THEY DID DENY THE RIGHTS OF CITIZENS UNDER THE
CONSTITUTION, AND EXCEPT TO THE EXTENT OF THE EXPRESS LIMITATIONS UPON
THE STATES, AS I HAVE SHOWN, THE CITIZEN HAD NO REMEDY.  THEY DENIED
TRIAL BY JURY, AND HE HAD NO REMEDY.  THEY TOOK PROPERTY WITHOUT
COMPENSATION, AND HE HAD NO REMEDY.  THEY RESTRICTED THE FREEDOM OF THE
PRESS, AND HE HAD NO REMEDY.  THEY RESTRICTED THE FREEDOM OF SPEECH,
AND HE HAD NO REMEDY.  THEY RESTRICTED THE RIGHTS OF CONSCIENCE, AND HE
HAD NO REMEDY.  THEY BOUGHT AND SOLD MEN WHO HAD NO REMEDY.  WHO DARE
SAY, NOW THAT THE CONSTITUTION HAS BEEN AMENDED, THAT THE NATION CANNOT
BY LAW PROVIDE AGAINST ALL SUCH ABUSES AND DENIALS OF RIGHT AS THESE IN
STATES AND BY STATES, OR COMBINATIONS OF PERSONS? 

     .         . .         .         . 

"MR. SPEAKER, I RESPECTFULLY SUBMIT TO THE HOUSE AND COUNTRY THAT, BY
VIRTUE OF THESE AMENDMENTS, IT IS COMPETENT FOR CONGRESS TO-DAY TO
PROVIDE BY LAW THAT NO MAN SHALL BE HELD TO ANSWER IN THE TRIBUNALS OF
ANY STATE IN THIS UNION FOR ANY ACT MADE CRIMINAL BY THE LAWS OF THAT
STATE WITHOUT A FAIR AND IMPARTIAL TRIAL BY JURY.  CONGRESS NEVER
BEFORE HAS HAD THE POWER TO DO IT.  IT IS ALSO COMPETENT FOR CONGRESS
TO PROVIDE THAT NO CITIZEN IN ANY STATE SHALL BE DEPRIVED OF HIS
PROPERTY BY STATE LAW OR THE JUDGMENT OF A STATE COURT WITHOUT JUST
COMPENSATION THEREFOR.  CONGRESS NEVER BEFORE HAD THE POWER SO TO
DECLARE.  IT IS COMPETENT FOR THE CONGRESS OF THE UNITED STATES TO-DAY
TO DECLARE THAT NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL
ABRIDGE THE FREEDOM OF SPEECH, THE FREEDOM OF THE PRESS, OR THE RIGHT
OF THE PEOPLE PEACEABLY TO ASSEMBLE TOGETHER AND PETITION FOR REDRESS
OF GRIEVANCES FOR THESE ARE OF THE RIGHTS OF CITIZENS OF THE UNITED
STATES DEFINED IN THE CONSTITUTION AND GUARANTIED BY THE FOURTEENTH
AMENDMENT, AND TO ENFORCE WHICH CONGRESS IS THEREBY EXPRESSLY
EMPOWERED.  ...  "  CONG. GLOBE, 42D CONG., 1ST SESS. (1871) APP. 81,
83-85. 

AND THE DAY AFTER MR. GARFIELD'S ADDRESS, MR. DAWES, ALSO A MEMBER OF
THE 39TH CONGRESS, STATED HIS UNDERSTANDING OF THE MEANING OF THE
FOURTEENTH AMENDMENT: 

"SIR, IN THE PROGRESS OF CONSTITUTIONAL LIBERTY, WHEN, IN ADDITION TO
THOSE PRIVILEGES AND IMMUNITIES (SECURED BY THE ORIGINAL CONSTITUTION)
...  , THERE WERE ADDED FROM TIME TO TIME, BY AMENDMENTS, OTHERS, AND
THESE WERE AUGMENTED, AMPLIFIED, AND SECURED AND FORTIFIED IN THE
BUTTRESSES OF THE CONSTITUTION ITSELF, HE HARDLY COMPREHENDED THE FULL
SCOPE AND MEASURE OF THE PHRASE WHICH APPEARS IN THIS BILL.  LET ME
READ, ONE BY ONE, THESE AMENDMENTS, AND ASK THE HOUSE TO TELL ME WHEN
AND WHERE AND BY WHAT CHOSEN PHRASE HAS MAN BEEN ABLE TO BRING BEFORE
THE CONGRESS OF THE COUNTRY A BROADER SWEEP OF LEGISLATION THAN MY
FRIEND HAS IN THE BILL HERE.  IN ADDITION TO THE ORIGINAL RIGHTS
SECURED TO HIM IN THE FIRST ARTICLE OF AMENDMENTS HE HAD SECURED THE
FREE EXERCISE OF HIS RELIGIOUS BELIEF, AND FREEDOM OF SPEECH AND OF THE
PRESS.  THEN AGAIN HE HAD SECURED TO HIM THE RIGHT TO KEEP AND BEAR
ARMS IN HIS DEFENSE.  THEN, AFTER THAT, HIS HOME WAS SECURED IN TIME OF
PEACE FROM THE PRESENCE OF A SOLDIER; AND, STILL FURTHER, SIR, HIS
HOUSE, HIS PAPERS, AND HIS EFFECTS WERE PROTECTED AGAINST UNREASONABLE
SEIZURE.  ... 

"THEN, AGAIN, AS IF THAT WERE NOT ENOUGH, BY ANOTHER AMENDMENT HE WAS
SECURED AGAINST TRIAL FOR ANY ALLEGED OFFENSE EXCEPT IT BE ON THE
PRESENTATION OF A GRAND JURY, AND HE WAS PROTECTED AGAINST EVER GIVING
TESTIMONY AGAINST HIMSELF.  THEN, SIR, HE WAS GUARANTIED A SPEEDY
TRIAL, AND THE RIGHT TO CONFRONT EVERY WITNESS AGAINST HIM.  THEN IN
EVERY CONTROVERSY WHICH SHOULD ARISE HE HAD THE RIGHT TO HAVE IT
DECIDED BY A JURY OF HIS PEERS.  THEN, SIR, BY ANOTHER AMENDMENT, HE
WAS NEVER TO BE REQUIRED TO GIVE EXCESSIVE BAIL, OR BE PUNISHED BY
CRUEL AND UNUSUAL PUNISHMENT.  AND STILL LATER, SIR, AFTER THE BLOODY
SACRIFICE OF OUR FOUR YEARS' WAR, WE GAVE THE MOST GRAND OF ALL THESE
RIGHTS, PRIVILEGES, AND IMMUNITIES, BY ONE SINGLE AMENDMENT TO THE
CONSTITUTION, TO FOUR MILLIONS OF AMERICAN CITIZENS WHO SPRANG INTO
BEING, AS IT WERE, BY THE WAVE OF A MAGIC WAND.  STILL FURTHER, EVERY
PERSON BORN ON THE SOIL WAS MADE A CITIZEN AND CLOTHED WITH THEM ALL. 

"IT IS ALL THESE, MR. SPEAKER, WHICH ARE COMPREHENDED IN THE WORDS
'AMERICAN CITIZEN,' AND IT IS TO PROTECT AND TO SECURE HIM IN THESE
RIGHTS, PRIVILEGES, AND IMMUNITIES THIS BILL IS BEFORE THE HOUSE.  AND
THE QUESTION TO BE SETTLED IS, WHETHER BY THE CONSTITUTION, IN WHICH
THESE PROVISIONS ARE INSERTED, THERE IS ALSO POWER TO GUARD, PROTECT,
AND ENFORCE THESE RIGHTS OF THE CITIZENS; WHETHER THEY ARE MORE,
INDEED, THAN A MERE DECLARATION OF RIGHTS, CARRYING WITH IT NO POWER OF
ENFORCEMENT  ...  "  CONG. GLOBE, 42D CONG., 1ST SESS. PART I (1871)
475, 476. 

          VIII. 

HEREAFTER APPEAR STATEMENTS IN OPINIONS OF THIS COURT RENDERED AFTER
ADOPTION OF THE FOURTEENTH AMENDMENT AND PRIOR TO THE TWINING CASE
WHICH INDICATE A BELIEF THAT THE FOURTEENTH AMENDMENT, AND PARTICULARLY
ITS PRIVILEGES AND IMMUNITIES CLAUSE, WAS A PLAIN APPLICATION OF THE
BILL OF RIGHTS TO THE STATES.  SEE P. 75, NOTE 6, SUPRA. 

IN THE SLAUGHTER-HOUSE CASES, 16 WALL.  36, 83, THE DISSENTING
OPINION OF MR. JUSTICE FIELD EMPHASIZED THAT THE FOURTEENTH AMENDMENT
MADE A "CITIZEN OF A STATE  ...  A CITIZEN OF THE UNITED STATES
RESIDING IN THAT STATE."  ID. AT 95.  BUT HE ENUNCIATED A RELATIVELY
LIMITED NUMBER OF PRIVILEGES AND IMMUNITIES WHICH HE CONSIDERED
PROTECTED BY NATIONAL POWER FROM STATE INTERFERENCE BY THE FOURTEENTH
AMENDMENT.  APPARENTLY DISSATISFIED WITH THE LIMITED INTERPRETATION OF
MR. JUSTICE FIELD, MR. JUSTICE BRADLEY, ALTHOUGH AGREEING WITH ALL THAT
MR. JUSTICE FIELD HAD SAID, WROTE AN ADDITIONAL DISSENT.  ID. AT 111. 
IN IT HE SAID: 

"BUT WE ARE NOT BOUND TO RESORT TO IMPLICATION, OR TO THE
CONSTITUTIONAL HISTORY OF ENGLAND, TO FIND AN AUTHORITATIVE DECLARATION
OF SOME OF THE MOST IMPORTANT PRIVILEGES AND IMMUNITIES OF CITIZENS OF
THE UNITED STATES.  IT IS IN THE CONSTITUTION ITSELF.  THE
CONSTITUTION, IT IS TRUE, AS IT STOOD PRIOR TO THE RECENT AMENDMENTS,
SPECIFIES, IN TERMS, ONLY A FEW OF THE PERSONAL PRIVILEGES AND
IMMUNITIES OF CITIZENS, BUT THEY ARE VERY COMPREHENSIVE IN THEIR
CHARACTER.  THE STATES WERE MERELY PROHIBITED FROM PASSING BILLS OF
ATTAINDER, EX POST FACTO LAWS, LAWS IMPAIRING THE OBLIGATION OF
CONTRACTS, AND PERHAPS ONE OR TWO MORE.  BUT OTHERS OF THE GREATEST
CONSEQUENCE WERE ENUMERATED, ALTHOUGH THEY WERE ONLY SECURED, IN
EXPRESS TERMS, FROM INVASION BY THE FEDERAL GOVERNMENT; SUCH AS THE
RIGHT OF HABEAS CORPUS, THE RIGHT OF TRIAL BY JURY, OF FREE EXERCISE OF
RELIGIOUS WORSHIP, THE RIGHT OF FREE SPEECH AND A FREE PRESS, THE RIGHT
PEACEABLY TO ASSEMBLE FOR THE DISCUSSION OF PUBLIC MEASURES, THE RIGHT
TO BE SECURE AGAINST UNREASONABLE SEARCHES AND SEIZURES, AND ABOVE ALL,
AND INCLUDING ALMOST ALL THE REST, THE RIGHT OF NOT BEING DEPRIVED OF
LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW.  THESE, AND
STILL OTHERS ARE SPECIFIED IN THE ORIGINAL CONSTITUTION, OR IN THE
EARLY AMENDMENTS OF IT, AS AMONG THE PRIVILEGES AND IMMUNITIES OF
CITIZENS OF THE UNITED STATES, OR, WHAT IS STILL STRONGER FOR THE FORCE
OF THE ARGUMENT, THE RIGHTS OF ALL PERSONS, WHETHER CITIZENS OR NOT." 
ID. AT 118-119; SEE ALSO ID. AT 120-122. 

MR. JUSTICE SWAYNE JOINED IN THIS OPINION BUT ADDED HIS OWN NOT
INCONSISTENT VIEWS.  ID. AT 124. 

BUT IN WALKER V. SAUVINET, 92 U.S. 90, 92, WHEN A MAJORITY OF THE
COURT HELD THAT "A TRIAL BY JURY IN SUITS AT COMMON LAW PENDING IN THE
STATE COURTS IS NOT  ...  A PRIVILEGE OR IMMUNITY OF NATIONAL
CITIZENSHIP, WHICH THE STATES ARE FORBIDDEN BY THE FOURTEENTH AMENDMENT
TO ABRIDGE," MR. JUSTICE FIELD AND MR. JUSTICE CLIFFORD DISSENTED FROM
"THE OPINION AND JUDGMENT OF THE COURT."  ID. AT 93. 

IN SPIES V. ILLINOIS, 123 U.S. 131, COUNSEL FOR THE PETITIONERS, MR.
J. RANDOLPH TUCKER, AFTER ENUMERATING THE PROTECTIONS OF THE BILL OF
RIGHTS, TOOK THIS POSITION: 

"  ...  THOUGH ORIGINALLY THE FIRST TEN AMENDMENTS WERE ADOPTED AS
LIMITATIONS ON FEDERAL POWER, YET IN SO FAR AS THEY SECURE AND
RECOGNIZE FUNDAMENTAL RIGHTS - COMMON LAW RIGHTS - OF THE MAN, THEY
MAKE THEM PRIVILEGES AND IMMUNITIES OF THE MAN AS CITIZEN OF THE UNITED
STATES, AND CANNOT NOW BE ABRIDGED BY A STATE UNDER THE FOURTEENTH
AMENDMENT.  IN OTHER WORDS, WHILE THE TEN AMENDMENTS, AS LIMITATIONS ON
POWER, ONLY APPLY TO THE FEDERAL GOVERNMENT, AND NOT TO THE STATES, YET
IN SO FAR AS THEY DECLARE OR RECOGNIZE RIGHTS OF PERSONS, THESE RIGHTS
ARE THEIRS, AS CITIZENS OF THE UNITED STATES, AND THE FOURTEENTH
AMENDMENT AS TO SUCH RIGHTS LIMITS STATE POWER, AS THE TEN AMENDMENTS
HAD LIMITED FEDERAL POWER. 

     .         .         .         .         . 

"  ...  THE RIGHTS DECLARED IN THE FIRST TEN AMENDMENTS ARE TO BE
REGARDED AS PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES,
WHICH, AS I INSIST, ARE PROTECTED AS SUCH BY THE FOURTEENTH
AMENDMENT."  ID. AT 151, 152. 

THE CONSTITUTIONAL ISSUES RAISED BY THIS ARGUMENT WERE NOT REACHED BY
THE COURT WHICH DISPOSED OF THE CASE ON JURISDICTIONAL GROUNDS. 

HOWEVER, MR. JUSTICE FIELD, IN HIS DISSENTING OPINION IN O'NEIL V.
VERMONT, 144 U.S. 323, 337, 361, STATED THAT "AFTER MUCH REFLECTION" HE
HAD BECOME PERSUADED THAT THE DEFINITION OF PRIVILEGES AND IMMUNITIES
GIVEN BY MR. TUCKER IN SPIES V. ILLINOIS, SUPRA, "IS CORRECT."  AND MR.
JUSTICE FIELD WENT ON TO SAY THAT 

"WHILE, THEREFORE, THE TEN AMENDMENTS, AS LIMITATIONS ON POWER, AND,
SO FAR AS THEY ACCOMPLISH THEIR PURPOSE AND FIND THEIR FRUITION IN SUCH
LIMITATIONS, ARE APPLICABLE ONLY TO THE FEDERAL GOVERNMENT AND NOT TO
THE STATES, YET, SO FAR AS THEY DECLARE OR RECOGNIZE THE RIGHTS OF
PERSONS, THEY ARE RIGHTS BELONGING TO THEM AS CITIZENS OF THE UNITED
STATES UNDER THE CONSTITUTION; AND THE FOURTEENTH AMENDMENT, AS TO ALL
SUCH RIGHTS, PLACES A LIMIT UPON STATE POWER BY ORDAINING THAT NO STATE
SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THEM.  IF I AM RIGHT
IN THIS VIEW, THEN EVERY CITIZEN OF THE UNITED STATES IS PROTECTED FROM
PUNISHMENTS WHICH ARE CRUEL AND UNUSUAL.  IT IS AN IMMUNITY WHICH
BELONGS TO HIM, AGAINST BOTH STATE AND FEDERAL ACTION.  THE STATE
CANNOT APPLY TO HIM, ANY MORE THAN THE UNITED STATES, THE TORTURE, THE
RACK OR THUMBSCREW, OR ANY CRUEL AND UNUSUAL PUNISHMENT, OR ANY MORE
THAN IT CAN DENY TO HIM SECURITY IN HIS HOUSE, PAPERS AND EFFECTS
AGAINST UNREASONABLE SEARCHES AND SEIZURES, OR COMPEL HIM TO BE A
WITNESS AGAINST HIMSELF IN A CRIMINAL PROSECUTION.  THESE RIGHTS, AS
THOSE OF CITIZENS OF THE UNITED STATES, FIND THEIR RECOGNITION AND
GUARANTY AGAINST FEDERAL ACTION IN THE CONSTITUTION OF THE UNITED
STATES, AND AGAINST STATE ACTION IN THE FOURTEENTH AMENDMENT.  THE
INHIBITION BY THAT AMENDMENT IS NOT THE LESS VALUABLE AND EFFECTIVE
BECAUSE OF THE PRIOR AND EXISTING INHIBITION AGAINST SUCH ACTION IN THE
CONSTITUTIONS OF THE SEVERAL STATES.  ...  "  O'NEIL V. VERMONT, SUPRA,
AT 363. 

MR. JUSTICE HARLAN, AND APPARENTLY MR. JUSTICE BREWER, CONCURRED IN
THIS PHASE OF MR. JUSTICE FIELD'S DISSENT.  ID. AT 366, 370, 371. 

FOR FURTHER EXPOSITION OF THESE VIEWS SEE ALSO THE VIGOROUS
DISSENTING OPINIONS OF MR. JUSTICE HARLAN IN HURTADO V. CALIFORNIA, 110
U.S. 516, 538, AND MAXWELL V. DOW, 176 U.S. 581, 605, AS WELL AS HIS
DISSENTING OPINION IN TWINING V. NEW JERSEY, 211 U.S. 78, 114. 

FN1  MR. BINGHAM AND MR. STEVENS HAD INTRODUCED THESE SAME PROPOSED
AMENDMENTS IN THE HOUSE PRIOR TO THE ESTABLISHMENT OF THE
RECONSTRUCTION COMMITTEE.  CONG.  GLOBE, 39TH CONG., 1ST SESS. (1865)
10, 14. 

FN2  IT HAS BEEN SAID OF STEVENS' STATEMENT:  "HE EVIDENTLY HAD
REFERENCE TO THE BILL OF RIGHTS, FOR IT IS IN IT THAT MOST OF THE
PRIVILEGES ARE ENUMERATED, AND BESIDES IT WAS NOT APPLICABLE TO THE
STATES."  FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908) 75. 

FN3  IN A WIDELY PUBLICIZED REPORT TO THE PRESIDENT WHICH WAS ALSO
SUBMITTED TO THE CONGRESS, CARL SCHURZ HAD REVIEWED SIMILAR INCIDENTS
AND EMPHASIZED THE FACT THAT NEGROES HAD BEEN DENIED THE RIGHT TO BEAR
ARMS, OWN PROPERTY, ENGAGE IN BUSINESS, TO TESTIFY IN COURT, AND THAT
LOCAL AUTHORITIES HAD ARRESTED THEM WITHOUT CAUSE AND TRIED THEM
WITHOUT JURIES.  SEN. EXEC. DOC. NO. 2, 39TH CONG., 1ST SESS. (1865)
23, 24, 26, 36.  SEE ALSO REPORT OF COMMISSIONER OF FREEDMAN'S BUREAU,
H. EXEC. DOC. NO. 70, 39TH CONG., 1ST SESS. (1866) 41, 47, 48, 233,
236, 265, 376.    MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE RUTLEDGE
CONCURS, DISSENTING. 

WHILE IN SUBSTANTIAL AGREEMENT WITH THE VIEWS OF MR. JUSTICE BLACK, I
HAVE ONE RESERVATION AND ONE ADDITION TO MAKE. 

I AGREE THAT THE SPECIFIC GUARANTEES OF THE BILL OF RIGHTS SHOULD BE
CARRIED OVER INTACT INTO THE FIRST SECTION OF THE FOURTEENTH
AMENDMENT.  BUT I AM NOT PREPARED TO SAY THAT THE LATTER IS ENTIRELY
AND NECESSARILY LIMITED BY THE BILL OF RIGHTS.  OCCASIONS MAY ARISE
WHERE A PROCEEDING FALLS SO FAR SHORT OF CONFORMING TO FUNDAMENTAL
STANDARDS OF PROCEDURE AS TO WARRANT CONSTITUTIONAL CONDEMNATION IN
TERMS OF A LACK OF DUE PROCESS DESPITE THE ABSENCE OF A SPECIFIC
PROVISION IN THE BILL OF RIGHTS. 

THAT POINT, HOWEVER, NEED NOT BE PURSUED HERE INASMUCH AS THE FIFTH
AMENDMENT IS EXPLICIT IN ITS PROVISION THAT NO PERSON SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF.  THAT
PROVISION, AS MR. JUSTICE BLACK DEMONSTRATES, IS A CONSTITUENT PART OF
THE FOURTEENTH AMENDMENT. 

MOREOVER, IT IS MY BELIEF THAT THIS GUARANTEE AGAINST SELF
INCRIMINATION HAS BEEN VIOLATED IN THIS CASE.  UNDER CALIFORNIA LAW,
THE JUDGE OR PROSECUTOR MAY COMMENT ON THE FAILURE OF THE DEFENDANT IN
A CRIMINAL TRIAL TO EXPLAIN OR DENY ANY EVIDENCE OR FACTS INTRODUCED
AGAINST HIM.  AS INTERPRETED AND APPLIED IN THIS CASE, SUCH A PROVISION
COMPELS A DEFENDANT TO BE A WITNESS AGAINST HIMSELF IN ONE OF TWO
WAYS: 

1.  IF HE DOES NOT TAKE THE STAND, HIS SILENCE IS USED AS THE BASIS
FOR DRAWING UNFAVORABLE INFERENCES AGAINST HIM AS TO MATTERS WHICH HE
MIGHT REASONABLY BE EXPECTED TO EXPLAIN.  THUS HE IS COMPELLED, THROUGH
HIS SILENCE, TO TESTIFY AGAINST HIMSELF.  AND SILENCE CAN BE AS
EFFECTIVE IN THIS SITUATION AS ORAL STATEMENTS. 

2.  IF HE DOES TAKE THE STAND, THEREBY OPENING HIMSELF TO CROSS
EXAMINATION, SO AS TO OVERCOME THE EFFECTS OF THE PROVISION IN
QUESTION, HE IS NECESSARILY COMPELLED TO TESTIFY AGAINST HIMSELF.  IN
THAT CASE, HIS TESTIMONY ON CROSS-EXAMINATION IS THE RESULT OF THE
COERCIVE PRESSURE OF THE PROVISION RATHER THAN HIS OWN VOLITION. 

MUCH CAN BE SAID PRO AND CON AS TO THE DESIRABILITY OF ALLOWING
COMMENT ON THE FAILURE OF THE ACCUSED TO TESTIFY.  BUT POLICY ARGUMENTS
ARE TO NO AVAIL IN THE FACE OF A CLEAR CONSTITUTIONAL COMMAND.  THIS
GUARANTEE OF FREEDOM FROM SELF-INCRIMINATION IS GROUNDED ON A DEEP
RESPECT FOR THOSE WHO MIGHT PREFER TO REMAIN SILENT BEFORE THEIR
ACCUSERS.  TO BORROW LANGUAGE FROM WILSON V. UNITED STATES, 149 U.S.
60, 66:  "IT IS NOT EVERY ONE WHO CAN SAFELY VENTURE ON THE WITNESS
STAND THOUGH ENTIRELY INNOCENT OF THE CHARGE AGAINST HIM.  EXCESSIVE
TIMIDITY, NERVOUSNESS WHEN FACING OTHERS AND ATTEMPTING TO EXPLAIN
TRANSACTIONS OF A SUSPICIOUS CHARACTER, AND OFFENCES CHARGED AGAINST
HIM, WILL OFTEN CONFUSE AND EMBARRASS HIM TO SUCH A DEGREE AS TO
INCREASE RATHER THAN REMOVE PREJUDICES AGAINST HIM.  IT IS NOT EVERY
ONE, HOWEVER HONEST, WHO WOULD, THEREFORE, WILLINGLY BE PLACED ON THE
WITNESS STAND." 

WE ARE OBLIGED TO GIVE EFFECT TO THE PRINCIPLE OF FREEDOM FROM SELF
INCRIMINATION.  THAT PRINCIPLE IS AS APPLICABLE WHERE THE COMPELLED
TESTIMONY IS IN THE FORM OF SILENCE AS WHERE IT IS COMPOSED OF ORAL
STATEMENTS.  ACCORDINGLY, I WOULD REVERSE THE JUDGMENT BELOW. 
..END :








BARTELS V. BIRMINGHAM, 332 U.S. 126 


ARGUED APRIL 3, 1947.  - DECIDED JUNE 23, 1947.  - 157 F.2D 295,
REVERSED. 


1.  UNDER THE CIRCUMSTANCES DETAILED IN THE OPINION, THE MEMBERS OF
"NAME BANDS" WHICH PLAY SHORT-TERM ENGAGEMENTS AT PUBLIC DANCE HALLS
ARE, FOR PURPOSES OF THE TAXES IMPOSED BY THE SOCIAL SECURITY ACT,
EMPLOYEES OF THE BAND LEADERS AND NOT OF THE DANCE HALL OPERATORS -
NOTWITHSTANDING CONTRACTUAL PROVISIONS DESIGNATING THE DANCE HALL
OPERATORS AS THEIR EMPLOYERS.  PP. 127-132. 

2.  AN INTERPRETIVE RULING ON TREASURY REGULATIONS BY THE
COMMISSIONER OF INTERNAL REVENUE, WHEREBY THE BURDEN OF THE SOCIAL
SECURITY TAX COULD BE SHIFTED BY CONTRACTUAL ARRANGEMENTS FROM THE BAND
LEADERS TO THE DANCE HALL OPERATORS, WAS IN EXCESS OF THE STATUTORY
POWER OF THE COMMISSIONER AND INVALID.  PP. 130-132. 

BARTELS ET AL., DOING BUSINESS AS CRYSTAL BALLROOM, V. BIRMINGHAM,
COLLECTOR OF INTERNAL REVENUE, ET AL. 

NO. 731.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT.* 

*TOGETHER WITH NO. 732, GEER ET AL., DOING BUSINESS AS LARRY GEER
BALLROOMS, V. BIRMINGHAM, COLLECTOR OF INTERNAL REVENUE, ALSO ON
CERTIORARI TO THE SAME COURT. 

PETITIONERS BROUGHT SUITS AGAINST THE COLLECTOR OF INTERNAL REVENUE
FOR REFUNDS OF SOCIAL SECURITY TAXES.  IN ONE OF THE SUITS SEVERAL BAND
LEADERS WERE PERMITTED TO INTERVENE AS DEFENDANTS.  JUDGMENTS FOR THE
PETITIONERS IN THE DISTRICT COURT WERE REVERSED BY THE CIRCUIT COURT OF
APPEALS.  157 F.2D 295.  THIS COURT GRANTED CERTIORARI.  329 U.S. 711. 
REVERSED, P. 132. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, OPERATORS OF PUBLIC DANCE HALLS, BROUGHT THESE ACTIONS,
WHICH WERE CONSOLIDATED FOR TRIAL, AGAINST THE RESPONDENT COLLECTOR OF
INTERNAL REVENUE TO RECOVER TAXES PAID UNDER THE SOCIAL SECURITY ACT,
TITLES VIII AND IX, AND I.R.C., C. 9, SUBCHAP.  A AND C. RECOVERY
DEPENDS ON WHETHER PETITIONERS' ARRANGEMENTS FOR BANDS TO PLAY AT THE
DANCE HALLS MADE THE BAND LEADERS AND OTHER MEMBERS OF THE BANDS
EMPLOYEES OF THE PETITIONERS OR WHETHER, DESPITE THE ARRANGEMENTS, THE
LEADERS WERE INDEPENDENT CONTRACTORS AND THEREFORE THEMSELVES THE
EMPLOYERS OF THE OTHER MEMBERS.  SEVERAL BAND LEADERS WERE ALLOWED TO
INTERVENE IN THE BARTELS CASE AS DEFENDANTS TO PROTECT THEIR OWN
INTERESTS.  AFTER A RECOVERY IN THE DISTRICT COURT, 59 F.SUPP.  84, WAS
REVERSED BY THE CIRCUIT COURT OF APPEALS, BIRMINGHAM V. BARTELS, 157
F.2D 295, PETITIONERS SOUGHT CERTIORARI WHICH WE GRANTED BECAUSE OF THE
IMPORTANCE OF THE ISSUE TO THE ADMINISTRATION OF THE ACT.  329 U.S.
711.  SEE UNITED STATES V. SILK AND HARRISON V. GREYVAN LINES, 331 U.S.
704. 

THESE CASES ARE NOT CONCERNED WITH MUSICIANS HIRED BY PETITIONERS TO
PLAY REGULARLY FOR THEIR DANCE HALLS BUT WITH "NAME BANDS" HIRED TO
PLAY FOR LIMITED ENGAGEMENTS AT THEIR ESTABLISHMENTS.  THESE BANDS ARE
BUILT AROUND A LEADER WHOSE NAME, AND DISTINCTIVE STYLE IN THE
PRESENTATION AND RENDITION OF DANCE MUSIC, IS INTENDED TO GIVE EACH
BAND A MARKED INDIVIDUALITY.  THE LEADER CONTRACTS WITH DIFFERENT
BALLROOM OPERATORS TO PLAY AT THEIR ESTABLISHMENTS FOR A CONTRACT
PRICE.  ALMOST ALL OF THE ENGAGEMENTS HERE INVOLVED WERE ONE-NIGHT
STANDS, SOME FEW BEING FOR SEVERAL SUCCESSIVE NIGHTS.  THE TRIAL COURT
FOUND, AND THERE IS NO REAL DISPUTE, THAT THE LEADER EXERCISES COMPLETE
CONTROL OVER THE ORCHESTRA.  HE FIXES THE SALARIES OF THE MUSICIANS,
PAYS THEM, AND TELLS THEM WHAT AND HOW TO PLAY.  HE PROVIDES THE SHEET
MUSIC AND ARRANGEMENTS, THE PUBLIC ADDRESS SYSTEM, AND THE UNIFORMS. 
HE EMPLOYES AND DISCHARGES THE MUSICIANS, AND HE PAYS AGENTS'
COMMISSIONS, TRANSPORTATION AND OTHER EXPENSES OUT OF THE SUM RECEIVED
FROM THE DANCE HALL OPERATORS.  ANY EXCESS IS HIS PROFIT AND ANY
DEFICIT HIS PERSONAL LOSS.  THE OPERATORS OF THE DANCE HALLS FURNISH
THE PIANO BUT NOT THE OTHER INSTRUMENTS. 

THE AMERICAN FEDERATION OF MUSICIANS, OF WHICH THE LEADERS AND THE
MUSICIANS ARE MEMBERS, ADOPTED A STANDARD CONTRACT KNOWN AS "FORM B." 
THE TERMS OF THIS CONTRACT CREATE THE DIFFICULTIES IN THE DETERMINATION
OF THIS CASE.  AS COMPENSATION TO THE BANDS, SOME CONTRACTS CALL FOR A
GUARANTEED SUM, WITH THE PRIVILEGE TO THE BANDS TO TAKE A PERCENTAGE OF
THE GROSS.  OTHER CONTRACTS ARE FOR A FIXED SUM, ONLY, AND OTHERS FOR A
PERCENTAGE OF GROSS, NOT TO EXCEED A FIXED SUM.  THE CONTRACT STATES
THAT THE BALLROOM OPERATOR IS THE EMPLOYER OF THE MUSICIANS AND THEIR
LEADER, AND "SHALL AT ALL TIMES HAVE COMPLETE CONTROL OF THE SERVICES
WHICH THE EMPLOYEES WILL RENDER UNDER THE SPECIFICATIONS OF THIS
CONTRACT."  THE FORM PARAGRAPH, SO FAR AS PERTINENT, IS SET OUT IN THE
MARGIN.  FN1  THE DISTRICT COURT FOUND THAT THE CONTRACT WAS ADOPTED BY
THE UNION IN ORDER TO SHIFT THE INCIDENCE OF THE SOCIAL SECURITY TAXES
FROM THE LEADER TO THE BALLROOM OPERATOR, AND THAT IT HAD NO PRACTICAL
EFFECT ON THE RELATIONS BETWEEN THE MUSICIANS, LEADER, AND OPERATOR. 
THE DISTRICT COURT HELD THAT THE QUESTION OF EMPLOYMENT UNDER THE ACT
WAS ONE OF FACT, AND THAT THE CONTRACT WAS ONLY ONE FACTOR TO BE
CONSIDERED.  SINCE THE DISTRICT COURT BELIEVED THAT THE CONTRACT WAS
NOT ENTERED INTO "BY FAIR NEGOTIATION" AND THAT ITS PURPOSE WAS TO
PROTECT THE LEADERS FROM TAXES AS EMPLOYERS, IT CONCLUDED THAT THE
CONTRACT WAS OF NO EFFECT AND THAT THE LEADER WAS AN INDEPENDENT
CONTRACTOR EMPLOYING THE MUSICIANS. 

THE CIRCUIT COURT OF APPEALS THOUGHT OTHERWISE.  IT CONCLUDED THAT THE
TEST OF EMPLOYMENT WAS THE COMMON LAW TEST OF CONTROL, I.E., THAT ONE
WAS AN EMPLOYER IF HE HAD THE "RIGHT" TO DIRECT WHAT SHOULD BE DONE AND
HOW IT SHOULD BE DONE.  IT CONCLUDED THAT THE CONTRACT BETWEEN THE
PARTIES GAVE THE BALLROOM OPERATORS THE "RIGHT" TO CONTROL THE
MUSICIANS AND THE LEADER, WHETHER OR NOT THE CONTROL WAS ACTUALLY
EXERCISED.  WHILE THE MAJORITY THOUGHT THAT SUCH A CONTRACT WAS NOT
BINDING ON THE GOVERNMENT, THEY THOUGHT IT WAS BINDING ON THE PARTIES
AND WOULD CONTROL LIABILITY FOR EMPLOYMENT TAXES IF THE BUREAU OF
INTERNAL REVENUE CHOSE TO ACCEPT THE ARRANGEMENT AS VALID.  BIRMINGHAM
V. BARTELS, SUPRA, AT 300. 

THE GOVERNMENT HERE RELIES ENTIRELY ON THE CONTRACT, CONCEDING THAT
OTHERWISE THE BANDLEADERS ARE INDEPENDENT CONTRACTORS EMPLOYING THE
MUSICIANS.  ON THE OTHER HAND, THE BANDLEADERS INVOLVED CONTEND ALSO
THAT THOUGH THE CONTRACT BE THOUGHT INCONCLUSIVE, THE LEADERS AND
MUSICIANS ARE EMPLOYEES OF THE OPERATORS.  THEY RELY UPON THE
DEPENDENCE OF THE ORCHESTRA MEMBERS UPON THE BALLROOM OPERATORS JUDGED
IN THE LIGHT OF THE PURPOSES OF THE ACT. 

IN UNITED STATES V. SILK, SUPRA, WE HELD THAT THE RELATIONSHIP OF
EMPLOYER-EMPLOYEE, WHICH DETERMINES THE LIABILITY FOR EMPLOYMENT TAXES
UNDER THE SOCIAL SECURITY ACT, WAS NOT TO BE DETERMINED SOLELY BY THE
IDEA OF CONTROL WHICH AN ALLEGED EMPLOYER MAY OR COULD EXERCISE OVER
THE DETAILS OF THE SERVICE RENDERED TO HIS BUSINESS BY THE WORKER OR
WORKERS.  OBVIOUSLY CONTROL IS CHARACTERISTICALLY ASSOCIATED WITH THE
EMPLOYER-EMPLOYEE RELATIONSHIP, BUT IN THE APPLICATION OF SOCIAL
LEGISLATION EMPLOYEES ARE THOSE WHO AS A MATTER OF ECONOMIC REALITY ARE
DEPENDENT UPON THE BUSINESS TO WHICH THEY RENDER SERVICE.  IN SILK, WE
POINTED OUT THAT PERMANENCY OF THE RELATION, THE SKILL REQUIRED, THE
INVESTMENT IN THE FACILITIES FOR WORK, AND OPPORTUNITIES FOR PROFIT OR
LOSS FROM THE ACTIVITIES WERE ALSO FACTORS THAT SHOULD ENTER INTO
JUDICIAL DETERMINATION AS TO THE COVERAGE OF THE SOCIAL SECURITY ACT. 
IT IS THE TOTAL SITUATION THAT CONTROLS.  THESE STANDARDS ARE AS
IMPORTANT IN THE ENTERTAINMENT FIELD AS WE HAVE JUST SAID, IN SILK,
THAT THEY WERE IN THAT OF DISTRIBUTION AND TRANSPORTATION. 

CONSIDERATION OF THE REGULATIONS OF THE TREASURY AND THE FEDERAL
SECURITY AGENCY, QUOTED IN SILK, 331 U.S. 704, AT NOTE 8, IS NECESSARY
HERE.  I.R.C., CHAP. 9, SECS. 1429, 1609.  UNDER THOSE REGULATIONS, THE
GOVERNMENT SUCCESSFULLY RESISTED THE EFFORT OF A LEADER OF A "NAME"
BAND, LIKE THOSE HERE INVOLVED, TO RECOVER SOCIAL SECURITY TAXES PAID
ON THE WAGES OF THE MEMBERS OF HIS ORGANIZATION.  WILLIAMS V. UNITED
STATES, 126 F.2D 129.  THE CONTRACT IN THAT CASE WAS NOT "FORM B" AND
DID NOT CONTAIN ANY CORRESPONDING CONTROL CLAUSE.  TWO YEARS LATER, THE
COMMISSIONER OF INTERNAL REVENUE ISSUED MIMEOGRAPHS 5638, 1944-5-11651,
AND 5767, 1944-22-11889, 1944 CUM. BULL.  547-48.  THEY WERE DIRECTED
AT THE STATUS OF MUSICIANS AND VARIETY ENTERTAINERS APPEARING IN
THEATRES, NIGHT CLUBS, RESTAURANTS AND SIMILAR ESTABLISHMENTS. 
COLLECTORS AND OTHERS WERE THEREIN ADVISED THAT A "FORM B" OR SIMILAR
CONTRACT WITH THE ENTERTAINERS MADE OPERATORS OF AMUSEMENT PLACES
LIABLE AS EMPLOYERS UNDER THE SOCIAL SECURITY ACT.  IN THE ABSENCE OF
SUCH A CONTRACT, THAT IS, IN REALITY, THE ABSENCE OF THE CONTROL CLAUSE
OF "FORM B," THE ENTERTAINERS, WITH "SHORT-TERM ENGAGEMENTS FOR A
NUMBER OF DIFFERENT OPERATORS" OF AMUSEMENT PLACES, WOULD BE CONSIDERED
"INDEPENDENT CONTRACTORS."  THE ARGUMENT OF RESPONDENTS TO SUPPORT THE
ADMINISTRATIVE INTERPRETATION OF THE REGULATIONS IS THAT THE GOVERNMENT
MAY ACCEPT THE VOLUNTARY CONTRACTUAL ARRANGEMENTS OF THE AMUSEMENT
OPERATORS AND ENTERTAINERS TO SHIFT THE TAX BURDEN FROM THE BAND
LEADERS TO THE OPERATORS.  FN2  CASES ARE CITED TO SUPPORT THIS
POSITION.  FN3  ALL OF THESE CASES, HOWEVER, INVOLVE THE PROBLEM OF
CORPORATE OR ASSOCIATION ENTITY.  THEY ARE NOT PERTINENT UPON THE
QUESTION OF CONTRACTS TO SHIFT TAX LIABILITY FROM ONE TAXPAYER TO
ANOTHER WHOLLY DISTINCT AND DISCONNECTED CORPORATION OR INDIVIDUAL.  WE
DO NOT THINK THAT SUCH A CONTRACTUAL SHIFT AUTHORIZES THE COMMISSIONER
TO COLLECT TAXES FROM ONE NOT COVERED BY THE TAXING STATUTE.  THE
INTERPRETIVE RULINGS ON THE REGULATIONS, REFERRED TO IN THIS PARAGRAPH,
DO NOT HAVE THE FORCE AND EFFECT OF TREASURY DECISIONS.  FN4  WE ARE OF
THE OPINION THAT SUCH ADMINISTRATIVE ACTION GOES BEYOND ROUTINE AND
EXCEEDS THE STATUTORY POWER OF THE COMMISSIONER.  SOCIAL SECURITY BOARD
V. NIEROTKO, 327 U.S. 358, 369-70. 

THIS BRINGS US THEN TO A DETERMINATION OF WHETHER THE MEMBERS OF A
"NAME BAND" UNDER THE CIRCUMSTANCES HERETOFORE DETAILED ARE EMPLOYEES
OF THE OPERATOR OF THE DANCE HALL OR OF THE LEADER.  IF THE OPERATOR IS
THE EMPLOYER, THE LEADER IS ALSO HIS EMPLOYEE. 

WE ARE OF THE OPINION THAT THE ELEMENTS OF EMPLOYMENT MARK THE BAND
LEADER AS THE EMPLOYER IN THESE CASES.  THE LEADER ORGANIZES AND TRAINS
THE BAND.  HE SELECTS THE MEMBERS.  IT IS HIS MUSICAL SKILL AND
SHOWMANSHIP THAT DETERMINES THE SUCCESS OR FAILURE OF THE
ORGANIZATION.  THE RELATIONS BETWEEN HIM AND THE OTHER MEMBERS ARE
PERMANENT; THOSE BETWEEN THE BAND AND THE OPERATOR ARE TRANSIENT. 
MAINTENANCE COSTS ARE A CHARGE AGAINST THE PRICE RECEIVED FOR THE
PERFORMANCE.  HE BEARS THE LOSS OR GAINS THE PROFIT AFTER PAYMENT OF
THE MEMBERS' WAGES AND THE OTHER BAND EXPENSES. 

THE JUDGMENTS OF THE CIRCUIT COURT OF APPEALS ARE REVERSED AND THOSE
OF THE DISTRICT COURT ARE AFFIRMED.  REVERSED. 

FN1  "WITNESSETH, THAT THE EMPLOYER EMPLOYS THE PERSONAL SERVICES OF
THE EMPLOYEES, AS MUSICIANS SEVERALLY, AND THE EMPLOYEES SEVERALLY,
THROUGH THEIR REPRESENTATIVE, AGREE TO RENDER COLLECTIVELY TO THE
EMPLOYER SERVICES AS MUSICIANS IN THE ORCHESTRA UNDER THE LEADERSHIP OF
GRIFF WILLIAMS, ACCORDING TO THE FOLLOWING TERMS AND CONDITIONS: 

     .         .         .         .        . 

"THE EMPLOYER SHALL AT ALL TIMES HAVE COMPLETE CONTROL OF THE
SERVICES WHICH THE EMPLOYEES WILL RENDER UNDER THE SPECIFICATIONS OF
THIS CONTRACT.  ON BEHALF OF THE EMPLOYER THE LEADER WILL DISTRIBUTE
THE AMOUNT RECEIVED FROM THE EMPLOYER TO THE EMPLOYEES, INCLUDING
HIMSELF, AS INDICATED ON THE OPPOSITE SIDE OF THIS CONTRACT, OR IN
PLACE THEREOF ON SEPARATE MEMORANDUM SUPPLIED TO THE EMPLOYER AT OR
BEFORE THE COMMENCEMENT OF THE EMPLOYMENT HEREUNDER AND TAKE AND TURN
OVER TO THE EMPLOYER RECEIPTS THEREFOR FROM EACH EMPLOYEE, INCLUDING
HIMSELF.  THE AMOUNT PAID TO THE LEADER INCLUDES THE COST OF
TRANSPORTATION, WHICH WILL BE REPORTED BY THE LEADER TO THE EMPLOYER. 
THE EMPLOYER HEREBY AUTHORIZES THE LEADER ON HIS BEHALF TO REPLACE ANY
EMPLOYEE WHO BY ILLNESS, ABSENCE, OR FOR ANY OTHER REASON DOES NOT
PERFORM ANY OR ALL OF THE SERVICES PROVIDED FOR UNDER THIS
CONTRACT...." 

FN2  THERE IS A CONTENTION THAT THE CONTRACTS WERE COERCED BECAUSE
THE OPERATORS COULD NOT SECURE THESE MUSICIANS UNDER OTHER
ARRANGEMENTS.  WE DO NOT FIND IT NECESSARY TO RELY OR PASS UPON THAT
CONTENTION. 

FN3  EDWARDS V. CHILE COPPER CO., 270 U.S. 452, 456; BURNET V.
COMMONWEALTH IMPROVEMENT CO., 287 U.S. 415; NEW COLONIAL ICE CO. V.
HELVERING, 292 U.S. 435; HELVERING V. COLEMAN-GILBERT ASSOCIATES, 296
U.S. 369, 374; HIGGINS V. SMITH, 308 U.S. 473, 477; GRAY V. POWELL, 314
U.S. 402; MOLINE PROPERTIES, INC. V. COMMISSIONER, 319 U.S. 436, 439;
INTERSTATE TRANSIT LINES V. COMMISSIONER, 319 U.S. 590; SCHENLEY CORP.
V. UNITED STATES, 326 U.S. 432, 437. 

FN4  SEE 1944 CUM. BULL., NOTICE, P. I. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY CONCUR, DISSENTING. 

AS THE OPINION OF THE COURT POINTS OUT, THE FORM B CONTRACT INVOLVED
IN THE PRESENT CASE WAS ADOPTED, WITH THE APPROVAL OF THE COMMISSIONER
OF INTERNAL REVENUE, AFTER IT HAD BEEN HELD UNDER AN EARLIER FORM OF
CONTRACT THAT MEMBERS OF THE ORCHESTRA WERE EMPLOYEES OF THE BAND
LEADER.  ON THE FACE OF THE PRESENT CONTRACT THE DANCE HALL PROPRIETOR
IS THE EMPLOYER EVEN UNDER TRADITIONAL CONCEPTS OF MASTER AND SERVANT. 
FOR HE HAS ALL OF THE CONVENTIONAL EARMARKS OF THE ENTREPRENEUR -
OWNERSHIP, PROFIT, LOSS, AND CONTROL - IF THE PROVISIONS OF THE
CONTRACT ALONE ARE CONSIDERED.  THEN THE REQUIREMENTS OF THE SOCIAL
SECURITY ACT ARE SATISFIED.  AND TO HOLD THE DANCE HALL PROPRIETOR
LIABLE FOR THE TAX IS NOT TO CONTRACT THE COVERAGE CONTEMPLATED BY THE
STATUTORY SCHEME. 

I THINK THE TAX COLLECTOR SHOULD BE ENTITLED TO TAKE SUCH PRIVATE
ARRANGEMENTS AT THEIR FACE.  IN OTHER SITUATIONS A TAXPAYER MAY NOT
ESCAPE THE TAX CONSEQUENCES OF THE BUSINESS ARRANGEMENTS WHICH HE MAKES
ON THE GROUNDS THAT THEY ARE FICTIONAL.  THE GOVERNMENT MAY "SUSTAIN OR
DISREGARD THE EFFECT OF THE FICTION AS BEST SERVES THE PURPOSES OF THE
TAX STATUTE."  HIGGINS V. SMITH, 308 U.S. 473, 477.  THAT RULE IS NOT
RESTRICTED IN ITS APPLICATION TO THE USE BY TAXPAYERS OF CORPORATE OR
RELATED DEVICES TO OBTAIN TAX ADVANTAGES.  IT WAS APPLIED IN GRAY V.
POWELL, 314 U.S. 402, WHERE A RAILROAD SOUGHT EXEMPTION FROM THE
BITUMINOUS COAL ACT BY CONTENDING THAT THE OPERATIONS OF ONE WHO
APPEARED TO BE AN INDEPENDENT CONTRACTOR WERE IN FACT ITS OPERATIONS. 
THE COURT IN REJECTING THE CONTENTION SAID THAT "THE CHOICE OF
DISREGARDING A DELIBERATELY CHOSEN ARRANGEMENT FOR CONDUCTING BUSINESS
AFFAIRS DOES NOT LIE WITH THE CREATOR OF THE PLAN."  ID., 414.  I SEE
NO REASON FOR CREATING AN EXCEPTION TO THAT RULE HERE.  IF THE
GOVERNMENT CHOOSES TO ACCEPT THE CONTRACT ON ITS FACE, THE PARTIES
SHOULD BE BARRED FROM SHOWING THAT IT CONCEALS THE REAL ARRANGEMENT. 
TAX ADMINISTRATION SHOULD NOT BE SO EASILY EMBARRASSED. 
..END :













FOSTER V. ILLINOIS, 332 U.S. 134 


NO. 540.  ARGUED MAY 8, 1947.  - DECIDED JUNE 23, 1947.  - 394 ILL. 194,
68 N.E.2D 252, AFFIRMED. 


1.  IN REVIEWING ON WRIT OF ERROR A CONVICTION FOR BURGLARY AND
LARCENY IN WHICH IT WAS CLAIMED THAT THE RIGHT TO COUNSEL HAD BEEN
DENIED CONTRARY TO THE FOURTEENTH AMENDMENT, A STATE SUPREME COURT WAS
CONFINED BY LOCAL PRACTICE TO THE COMMON LAW RECORD.  THAT RECORD
CONTAINED NO SPECIFIC RECITAL OF AN OFFER OF COUNSEL; BUT IT SHOWED
THAT THE DEFENDANT WAS A MATURE MAN AND THAT, BEFORE ACCEPTING HIS PLEA
OF GUILTY, THE TRIAL COURT ADVISED HIM OF HIS "RIGHTS OF TRIAL" AND OF
THE CONSEQUENCES OF A PLEA OF GUILTY; AND IT CONTAINED NOTHING TO
CONTRADICT THIS ACCOUNT OF THE PROCEEDINGS.  IN THE STATE SUPREME
COURT, THERE WAS NEITHER PROOF NOR UNCONTRADICTED ALLEGATION OF ANY
ACTUAL MISCARRIAGE OF JUSTICE IN ACCEPTING THE PLEA OF GUILTY; AND THAT
COURT AFFIRMED THE CONVICTION.  HELD:  ON THIS RECORD, TO WHICH REVIEW
IN THIS COURT IS CONFINED, THERE IS NO SHOWING OF A DENIAL OF DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT.  PP. 138-139. 

2.  THE PROVISION OF THE SIXTH AMENDMENT WHICH GUARANTEES TO AN
ACCUSED IN A CRIMINAL PROSECUTION IN A FEDERAL COURT THE ABSOLUTE RIGHT
"TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE," IS NOT MADE
APPLICABLE BY THE FOURTEENTH AMENDMENT TO PROSECUTIONS IN STATE
COURTS.  PP. 136-137. 

FOSTER ET AL. V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

IN AN ORIGINAL PROCEEDING IN THE SUPREME COURT OF ILLINOIS,
PETITIONERS CHALLENGED THE VALIDITY, UNDER THE FEDERAL CONSTITUTION, OF
SENTENCES OF IMPRISONMENT IMPOSED ON THEM UPON PLEAS OF GUILTY IN
CRIMINAL PROSECUTIONS IN A STATE COURT.  THE STATE SUPREME COURT
AFFIRMED THE JUDGMENTS.  394 ILL. 194, 68 N.E.2D 252.  THIS COURT
GRANTED CERTIORARI.  329 U.S. 712.  AFFIRMED, P. 139. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ORIGINAL PROCEEDING IN THE SUPREME COURT OF ILLINOIS BY
WAY OF WRIT OF ERROR TO TEST THE VALIDITY OF SENTENCES OF IMPRISONMENT
FOLLOWING PLEAS OF GUILTY.  THE SUPREME COURT OF ILLINOIS HAVING
AFFIRMED THE JUDGMENT, 394 ILL. 194, 68 N.E.2D 252, WE BROUGHT THE CASE
HERE, 329 U.S. 712, BECAUSE OF THE IMPORTANCE OF REVIEWING CONVICTIONS
WHERE SOLID DOUBT IS RAISED WHETHER THE REQUIREMENTS OF DUE PROCESS
HAVE BEEN OBSERVED. 

ON FEBRUARY 22, 1935, THE PETITIONERS WERE SENTENCED TO CONFINEMENT
IN THE ILLINOIS STATE PENITENTIARY, UNDER THE ILLINOIS STATE
INDETERMINATE SENTENCE LAW, AFTER PLEADING GUILTY TO AN INDICTMENT
CHARGING THEM WITH BURGLARY AND LARCENY.  CAHILL'S ILL. REV. STATS.
(1933) C. 38, SECS. 65, 796.  SINCE THE CONTROVERSY TURNS ON THE LEGAL
SIGNIFICANCE OF THE CIRCUMSTANCES UNDER WHICH THE PLEAS OF GUILTY WERE
ACCEPTED, IT IS IMPORTANT TO STATE THEM ACCORDING TO THE RECORD WHICH,
FOR PURPOSES OF THIS PROCEEDING, IS BINDING UPON THE ILLINOIS SUPREME
COURT AND THEREFORE UPON THIS COURT.  ACCORDING TO THE "MINUTES FROM
THE JUDGES DOCKET," THE DEFENDANTS FOSTER AND PAYNE (PETITIONERS HERE) 

"HAVING BEEN FURNISHED WITH A COPY OF THE INDICTMENT AND A LIST OF
THE JURORS AND PEOPLES WITNESSES AND ARE ADVISED OF THEIR RIGHTS OF
TRIAL AND OF THE CONSEQUENCES OF AN ENTRY OF A PLEA OF GUILTY AND BEING
ARRAIGNED IN OPEN COURT FOR PLEA TO THE INDICTMENT SAYS, EACH FOR
HIMSELF THAT HE IS GUILTY OF BURGLARY AND LARCENY AS CHARGED IN THE
INDICTMENT AND THEREUPON THE COURT ADVISES AND ADMONISHES EACH OF SAID
DEFENDANTS OF THE CONSEQUENCES OF ENTERING SUCH PLEAS OF GUILTY, AND
THEREAFTER EACH OF SAID DEFENDANTS STILL PERSIST IN SUCH PLEAS OF
GUILTY  ...  WHEREUPON SAID PLEAS OF GUILTY ARE RECEIVED AND ENTERED OF
RECORD." 

"THE COURT FINDS THE AGES OF SAID DEFENDANTS TO BE AS FOLLOWS,
RESPECTIVELY, NELSON FOSTER 34 YEARS OLD, GEORGE PAYNE, ALIAS ELIJAH
JEFFERSON 48 YEARS  ...  " 

ELEVEN YEARS LATER, ON FEBRUARY 7, 1946, THE PETITIONERS ASKED THE
SUPREME COURT OF ILLINOIS FOR THEIR DISCHARGE.  VARIOUS STATE GROUNDS
WERE URGED AND REJECTED.  OUR SOLE CONCERN IS WITH THE CLAIM "THAT THE
RECORD IN THIS CASE FAILS TO SHOW" A COMPLIANCE WITH THE FOURTEENTH
AMENDMENT INSOFAR AS THE DUE PROCESS CLAUSE OF THAT AMENDMENT REQUIRES
AN ACCUSED TO HAVE THE BENEFIT OF COUNSEL. 

THE CONSIDERATIONS THAT GUIDE THE DISPOSITION OF THIS CASE HAVE BEEN
CANVASSED HERE IN A SERIES OF RECENT OPINIONS.  THE "DUE PROCESS OF
LAW" WHICH THE FOURTEENTH AMENDMENT EXACTS FROM THE STATES IS A
CONCEPTION OF FUNDAMENTAL JUSTICE.  SEE HEBERT V. LOUISIANA, 272 U.S.
312, 316; PALKO V. CONNECTICUT, 302 U.S. 319, 325.  IT IS NOT SATISFIED
BY MERELY FORMAL PROCEDURAL CORRECTNESS, NOR IS IT CONFINED BY ANY
ABSOLUTE RULE SUCH AS THAT WHICH THE SIXTH AMENDMENT CONTAINS IN
SECURING TO AN ACCUSED "THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE."  BY
VIRTUE OF THAT PROVISION, COUNSEL MUST BE FURNISHED TO AN INDIGENT
DEFENDANT PROSECUTED IN A FEDERAL COURT IN EVERY CASE, WHATEVER THE
CIRCUMSTANCES.  SEE PALKO V. CONNECTICUT, SUPRA, AT 327; JOHNSON V.
ZERBST, 304 U.S. 458; BETTS V. BRADY, 316 U.S. 455, 464-65. 
PROSECUTIONS IN STATE COURTS ARE NOT SUBJECT TO THIS FIXED
REQUIREMENT.  SO WE HAVE HELD UPON FULLEST CONSIDERATION.  BETTS V.
BRADY, SUPRA.  BUT PROCESS OF LAW IN ORDER TO BE "DUE" DOES REQUIRE
THAT A STATE GIVE A DEFENDANT AMPLE OPPORTUNITY TO MEET AN ACCUSATION. 
AND SO, IN THE CIRCUMSTANCES OF A "PARTICULAR SITUATION," ASSIGNMENT OF
COUNSEL MAY BE "ESSENTIAL TO THE SUBSTANCE OF A HEARING" AS PART OF THE
DUE PROCESS WHICH THE FOURTEENTH AMENDMENT EXACTS FROM A STATE WHICH
IMPOSES SENTENCE.  PALKO V. CONNECTICUT, SUPRA, AT 327.  SUCH NEED MAY
EXIST WHETHER AN ACCUSED CONTESTS A CHARGE AGAINST HIM OR PLEADS
GUILTY. 

THE RATIONALE OF THIS APPLICATION OF DUE PROCESS WAS FIRST EXPOUNDED
IN POWELL V. ALABAMA, 287 U.S. 45.  IN FOLLOWING THAT CASE OUR RECENT
DECISIONS HAVE SPOKEN OF "THE RULE OF POWELL V. ALABAMA," OR "THE
REQUIREMENTS OF POWELL V. ALABAMA," THEREBY INDICATING THE ESSENTIAL
SCOPE OF THE DOCTRINE.  SEE WILLIAMS V. KAISER, 323 U.S. 471, 476-77;
TOMKINS V. MISSOURI, 323 U.S. 485, 488.  AND SO, IN EVERY CASE IN WHICH
THIS DOCTRINE WAS INVOKED AND DUE PROCESS WAS FOUND WANTING, THE
PRISONER SUSTAINED THE BURDEN OF PROVING, OR WAS PREPARED TO PROVE BUT
WAS DENIED OPPORTUNITY, THAT FOR WANT OF BENEFIT OF COUNSEL AN
INGREDIENT OF UNFAIRNESS ACTIVELY OPERATED IN THE PROCESS THAT RESULTED
IN HIS CONFINEMENT.  SEE POWELL V. ALABAMA, SUPRA, AT 51, 53, 56, 57
58; SMITH V. O'GRADY, 312 U.S. 329, 334; WILLIAMS V. KAISER, SUPRA, AT
472, 473-74, AND 476-77; TOMKINS V. MISSOURI, SUPRA, AT 486-487; HOUSE
V. MAYO, 324 U.S. 42, 45-46; WHITE V. RAGEN, 324 U.S. 760, 762-63; RICE
V. OLSON, 324 U.S. 786, 788-89.  ONLY THE OTHER DAY, IN A CASE
CONCERNING A CHARGE OF FIRST-DEGREE MURDER AGAINST A SEVENTEEN-YEAR-OLD
DEFENDANT, IN WHICH WE FOUND A DEPRIVATION "OF RIGHTS ESSENTIAL TO A
FAIR HEARING," WE TOOK PAINS TO POINT OUT THAT "THE COURT DID NOT
EXPLAIN THE CONSEQUENCES OF THE PLEA OF GUILTY, AND THE RECORD
INDICATES CONSIDERABLE CONFUSION IN PETITIONER'S MIND AT THE TIME OF
THE ARRAIGNMENT AS TO THE EFFECT OF SUCH A PLEA."  DE MEERLEER V.
MICHIGAN, 329 U.S. 663, 664. 

IN THIS CASE THERE IS NEITHER PROOF NOR UNCONTRADICTED ALLEGATION OF
ANY SUCH MISCARRIAGE OF JUSTICE IN ACCEPTING PLEAS OF GUILTY.  THE
RECORD OF THE PROCEEDING PLAINLY IMPORTS AN OBSERVANCE OF DUE PROCESS. 
IN THE CONTEMPORANEOUS LANGUAGE OF THE TRIAL COURT, THE DEFENDANTS "ARE
ADVISED OF THEIR RIGHTS OF TRIAL AND OF THE CONSEQUENCES OF AN ENTRY OF
A PLEA OF GUILTY," THE COURT "ADVISES AND ADMONISHES EACH OF SAID
DEFENDANTS OF THE CONSEQUENCES OF ENTERING SUCH PLEAS OF GUILTY," AND
THE DEFENDANTS THEREAFTER STILL PERSISTING, THEIR PLEAS "ARE RECEIVED
AND ENTERED OF RECORD."  THERE WAS NOTHING IN THE COMMON-LAW RECORD, ON
THE BASIS OF WHICH THE SUPREME COURT OF ILLINOIS RENDERED ITS DECISION,
TO CONTRADICT THIS ACCOUNT OF THE PROCEEDINGS IN 1935.  WE THUS HAVE IN
EFFECT THE BALD CLAIM THAT, MERELY BECAUSE THE RECORD DOES NOT DISCLOSE
AN OFFER OF COUNSEL TO A DEFENDANT UPON A PLEA OF GUILTY, ALTHOUGH THE
COURT BEFORE ACCEPTING THE PLEA DULY ADVISED HIM OF HIS "RIGHTS OF
TRIAL" AND OF THE CONSEQUENCES OF SUCH A PLEA, HE IS "DEPRIVED OF
RIGHTS ESSENTIAL TO A FAIR HEARING UNDER THE FEDERAL CONSTITUTION."  DE
MEERLEER V. MICHIGAN, SUPRA, AT 665. 

WE REJECT SUCH A CLAIM.  MOST INCARCERATIONS ARE UPON PLEAS OF
GUILTY, AND PROBABLY MOST SUCH PLEAS HAVE BEEN MADE WITHOUT THE FELT
NEED OF COUNSEL.  IT IS NOT FOR US TO SUGGEST THAT IT MIGHT BE
DESIRABLE TO OFFER TO EVERY ACCUSED WHO DESIRES TO PLEAD GUILTY THE
OPPORTUNITIES FOR COUNSEL AND TO ENTER WITH FORMALITY UPON THE RECORD
THE DELIBERATE DISCLAIMER OF HIS NEED FOR COUNSEL BECAUSE OF A FULL
APPRECIATION OF THE MEANING OF A PLEA OF GUILTY AS EXPOUNDED BY
RESPONSIBLE JUDGES.  OUR DUTY DOES NOT GO BEYOND SAFEGUARDING "RIGHTS
ESSENTIAL TO A FAIR HEARING" BY THE STATES.  AFTER ALL, DUE PROCESS,
"ITSELF A HISTORICAL PRODUCT," JACKMAN V. ROSENBAUM CO., 260 U.S. 22,
31, IS NOT TO BE TURNED INTO A DESTRUCTIVE DOGMA IN THE ADMINISTRATION
OF SYSTEMS OF CRIMINAL JUSTICE UNDER WHICH THE STATES HAVE LIVED NOT
ONLY BEFORE THE FOURTEENTH AMENDMENT BUT FOR THE EIGHTY YEARS SINCE ITS
ADOPTION.  IT DOES NOT MILITATE AGAINST RESPECT FOR THE DEEPLY ROOTED
SYSTEMS OF CRIMINAL JUSTICE IN THE STATES THAT SUCH AN ABRUPT
INNOVATION AS RECOGNITION OF THE CONSTITUTIONAL CLAIM HERE MADE
IMPLIES, WOULD FURNISH OPPORTUNITIES HITHERTO UNCONTEMPLATED FOR
OPENING WIDE THE PRISON DOORS OF THE LAND. 

INSOFAR AS THE SENTENCES IN THIS CASE ARE ATTACKED ON CLAIMS WHICH
WERE NOT OPEN FOR CONSIDERATION ON THE COMMON-LAW RECORD WHICH ALONE
WAS BEFORE THE ILLINOIS COURT, SEE 394 ILL. 194, 68 N.E.2D 252, THEY
ARE NOT OPEN HERE.  CARTER V. ILLINOIS, 329 U.S. 173.  THEY MUST BE
RAISED BY WHATEVER PROCEDURE ILLINOIS MAY PROVIDE, OR, IN DEFAULT OF
RELIEF BY APPROPRIATE ILLINOIS PROCEEDINGS, BY A NEW CLAIM OF DENIAL OF
DUE PROCESS FOR WANT OF SUCH RELIEF.  SEE MOONEY V. HOLOHAN, 294 U.S.
103.  AFFIRMED. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY
AND MR. JUSTICE RUTLEDGE JOIN, DISSENTING. 

IN ADAMSON V. CALIFORNIA, THIS DAY DECIDED, ANTE P. 46, THE COURT
WATERS DOWN THE FOURTEENTH AMENDMENT'S APPLICATION TO THE STATES OF THE
BILL OF RIGHTS GUARANTEE AGAINST SELF-INCRIMINATION SO AS TO MAKE IT
COMPATIBLE WITH THE COURT'S STANDARDS OF DECENCY AND A FAIR TRIAL.  IN
THIS CASE THE COURT SIMILARLY WATERS DOWN THE BILL OF RIGHTS GUARANTEE
OF COUNSEL IN CRIMINAL CASES.  IN BOTH CASES, THE COURT REFUSES TO
STRIKE DOWN CONVICTIONS OBTAINED IN DISREGARD OF BILL OF RIGHTS
GUARANTEES, ASSUMING ALL THE WHILE THAT IDENTICAL CONVICTIONS OBTAINED
IN FEDERAL COURTS WOULD VIOLATE THE BILL OF RIGHTS.  FOR THE COURT, IN
THE INSTANT CASE, CONCEDES THAT, BY VIRTUE OF THE SIXTH AMENDMENT,
"COUNSEL MUST BE FURNISHED AN INDIGENT DEFENDANT PROSECUTED IN A
FEDERAL COURT IN EVERY CASE, WHATEVER THE CIRCUMSTANCES."  THIS, OF
COURSE, RELATES TO CONVICTIONS FOLLOWING BOTH PLEAS OF NOT GUILTY AND
PLEAS OF GUILTY.  WILLIAMS V. KAISER, 323 U.S. 471; TOMKINS V.
MISSOURI, 323 U.S. 485. 

IN THE ADAMSON CASE, I HAVE VOICED MY OBJECTIONS TO DILUTION OF
CONSTITUTIONAL PROTECTIONS AGAINST SELF-INCRIMINATION IN STATE COURTS. 
THIS DECISION IS ANOTHER EXAMPLE OF THE CONSEQUENCES WHICH CAN BE
PRODUCED BY SUBSTITUTION OF THIS COURT'S DAY-TO-DAY OPINION OF WHAT
KIND OF TRIAL IS FAIR AND DECENT FOR THE KIND OF TRIAL WHICH THE BILL
OF RIGHTS GUARANTEES.  THIS TIME IT IS THE RIGHT OF COUNSEL.  WE CANNOT
KNOW WHAT BILL OF RIGHTS PROVISION WILL NEXT BE ATTENUATED BY THE
COURT.  WE CAN AT LEAST BE SURE THAT THERE WILL BE MORE, SO LONG AS THE
COURT ADHERES TO THE DOCTRINE OF THIS AND THE ADAMSON CASE. 

THE COURT'S DECISION RELIES HEAVILY ON BETTS V. BRADY, 316 U.S. 455. 
IN THAT CASE, A MAN ON RELIEF, TOO POOR TO HIRE A LAWYER, AND WHOSE
REQUEST FOR THE APPOINTMENT OF A LAWYER WAS DENIED, WAS COMPELLED TO
ACT AS HIS OWN LAWYER ON A CHARGE OF ROBBERY.  CONVICTION FOLLOWED. 
THAT CASE IS PRECEDENT FOR THIS ONE.  BUT IT IS THE KIND OF PRECEDENT
THAT I HAD HOPED THIS COURT WOULD NOT PERPETUATE. 

ONE THING MORE.  THE COURT SEEMS TO FEAR THAT PROTECTING THESE
DEFENDANTS' RIGHT TO COUNSEL TO THE FULL EXTENT DEFINED IN THE BILL OF
RIGHTS WOULD FURNISH "OPPORTUNITIES HITHERTO UNCONTEMPLATED FOR OPENING
WIDE THE PRISON DOORS OF THE LAND," BECAUSE, PRESUMABLY, THERE ARE MANY
PEOPLE LIKE BETTS, FOSTER AND PAYNE BEHIND THOSE DOORS AFTER TRIALS
WITHOUT HAVING HAD THE BENEFIT OF COUNSEL.  I DO NOT BELIEVE THAT SUCH
A REASON IS EVEN RELEVANT TO A DETERMINATION THAT WE SHOULD DECLINE TO
ENFORCE THE BILL OF RIGHTS. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE MURPHY CONCUR, DISSENTING. 

I THINK THE SIXTH AMENDMENT'S GUARANTY OF THE RIGHT TO COUNSEL IN
CRIMINAL CAUSES IS APPLICABLE TO SUCH PROCEEDINGS AS THIS IN STATE
COURTS. 

APART FROM THAT VIEW AND UPON THE COURT'S BASIS THAT THE FOURTEENTH
AMENDMENT BY ITS OWN FORCE INDEPENDENTLY PRESCRIBES A PARTIAL SIMILAR
GUARANTY, CF. PALKO V. CONNECTICUT, 302 U.S. 319, 327; BETTS V. BRADY,
316 U.S. 455; POWELL V. ALABAMA, 287 U.S. 45, I AM UNABLE TO ACCEPT ITS
CONCLUSION IN THIS CASE.  OF COURSE IF THE SO-CALLED PRESUMPTION OF
REGULARITY IS TO BE EFFECTIVE TO SUSTAIN THE DENIAL OF COUNSEL IN
CIRCUMSTANCES AS BALD AS THOSE PRESENTED IN GAYES V. NEW YORK, 332 U.S.
145, DECIDED TODAY, THAT PRESUMPTION MUST WORK THE SAME DENIAL IN THE
SOMEWHAT LESS STARTLING FACTS OF THIS CASE. 

BUT WHEN A RECORD DISCLOSES AS MUCH AS THE RECORD HERE SHOWS, I DO
NOT THINK ANY PRESUMPTION OF REGULARITY SHOULD BE PERMITTED TO OVERCOME
THE SUBSTANCE OF THE VIOLATED CONSTITUTIONAL RIGHT.  SUCH A PRESUMPTION
INDEED, IF VALID BY MERE FORCE OF THE FACT THAT A JUDGMENT HAS BEEN
RENDERED, MAY ALWAYS BE INDULGED.  CF. WILLIAMS V. KAISER, 323 U.S.
471; TOMKINS V. MISSOURI, 323 U.S. 485; DE MEERLEER V. MICHIGAN, 329
U.S. 663.  AND THE CONSEQUENCES OF SUCH A COURSE OF ACTION HERE, FOR
THE OBSERVANCE AND PRESERVATION OF CONSTITUTIONAL RIGHTS, MORE
ESPECIALLY OF THE INDIGENT AND IGNORANT WHO ARE UNABLE TO EMPLOY
COUNSEL FROM THEIR OWN RESOURCES AND DO NOT KNOW THEIR RIGHTS, MUST BE,
NOT MERELY A DENIAL OF THE BASIC RIGHT OF COUNSEL, BUT ALSO A DENIAL OF
THE EQUAL PROTECTION OF THE LAWS IN SWEEPING APPLICATION.  POVERTY OR
WEALTH WILL MAKE ALL THE DIFFERENCE IN SECURING THE SUBSTANCE OR ONLY
THE SHADOW OF CONSTITUTIONAL PROTECTIONS. 

HERE PETITIONERS WERE CHARGED WITH THE SERIOUS CRIMES OF BURGLARY AND
LARCENY, HANDED A COPY OF THE INDICTMENT, AND ARRAIGNED.  EVERY LAWYER
KNOWS THE DIFFICULTIES OF PLEADING TO SUCH CHARGES, INCLUDING THE
TECHNICALITIES OF THE APPLICABLE STATUTES AND ESPECIALLY OF THE
PRACTICE RELATING TO INCLUDED OR LESSER OFFENSES.  THE CRIMES CHARGED
INVOLVED PENALTIES OF IMPRISONMENT FOR FROM ONE YEAR TO LIFE, THE
PENALTY ACTUALLY IMPOSED UPON THESE PETITIONERS.    ON THE VERY DAY THE
INDICTMENT WAS HANDED DOWN, PETITIONERS WERE ARRAIGNED, THEIR PLEAS OF
GUILTY WERE ACCEPTED, AND THEY WERE SENTENCED.  AT NO TIME WERE THEY
OFFERED COUNSEL OR ADVISED OF THEIR RIGHT TO COUNSEL, NOR DID THEY
RECEIVE ANY ASSISTANCE FROM COUNSEL.  THE RECORD, IT IS TRUE, RECITES
THAT THEY WERE "ADVISED OF THEIR RIGHTS OF TRIAL AND OF THE
CONSEQUENCES OF AN ENTRY OF A PLEA OF GUILTY," NOTWITHSTANDING WHICH
EACH SAID THAT HE WAS GUILTY, WHEREUPON THE COURT "ADVISES AND
ADMONISHES EACH OF SAID DEFENDANTS OF THE CONSEQUENCES OF ENTERING SUCH
PLEAS OF GUILTY," DESPITE WHICH EACH PERSISTED IN HIS PLEA. 

HOWEVER THIS VAGUE AND FORMAL RECITAL MIGHT BE TAKEN IN OTHER
CIRCUMSTANCES, IT CANNOT BE REGARDED IN THIS CASE AS MEANING THAT
PETITIONERS WERE EITHER OFFERED COUNSEL OR INFORMED OF ANY RIGHT TO
COUNSEL.  INDEED THE RECITAL MUST BE TAKEN AS HAVING DELIBERATELY
AVOIDED INCLUDING STATEMENTS IN EITHER RESPECT.  AND, UPON THE RECORD
AS A WHOLE, WE ARE REQUIRED NOT ONLY TO READ IT IN THIS LIGHT BUT TO
CONCLUDE THAT THE RECITAL AND THE INTENTIONAL OMISSION OF STATEMENTS
CONCERNING THE RIGHT TO COUNSEL WERE EFFECTIVE TO ESTABLISH THAT THE
PETITIONERS WERE IN FACT DENIED THAT RIGHT. 

THE COURT DOES NOT POINT OUT, BUT IT IS THE VERY HEART OF THIS CASE,
THAT UNDER ILLINOIS LAW THESE PETITIONERS WERE, IN EFFECT, DENIED THE
RIGHT TO HAVE COUNSEL TENDERED OR APPOINTED BY THE COURT.  IT WAS UNDER
NO DUTY IMPOSED BY STATE LAW TO TENDER COUNSEL, TO INQUIRE INTO THE
NEED FOR COUNSEL, OR TO INFORM THE DEFENDANTS OF ANY RIGHT TO COUNSEL. 
INDEED, UNDER THE LAW OF THE STATE, IT SEEMS, THE COURT WOULD HAVE
EXCEEDED ITS POWERS BY TAKING ACTION IN ANY OF THESE RESPECTS. 

WE ARE NOT ONLY ENTITLED, WE ARE REQUIRED, TO READ THE RECORD OF THE
STATE'S PROCEEDINGS IN THE LIGHT OF THE STATE'S LAW APPLICABLE TO
THEM.  IN ILLINOIS BY STATUTE IT IS ONLY IN CAPITAL CASES THAT THE
COURT IS UNDER AN AFFIRMATIVE DUTY, WHEN IT APPEARS THAT A DEFENDANT IS
INDIGENT, TO TENDER APPOINTMENT OF COUNSEL.  FN1  IN NONCAPITAL CASES
THE FOLLOWING STATUTE APPLIES: 

"  ...  EVERY PERSON CHARGED WITH CRIME SHALL BE ALLOWED COUNSEL, AND
WHEN HE SHALL STATE UPON OATH THAT HE IS UNABLE TO PROCURE COUNSEL, THE
COURT SHALL ASSIGN HIM COMPETENT COUNSEL, WHO SHALL CONDUCT HIS
DEFENSE."  ILL. REV. STAT. (1945) C. 38, SEC. 730. 

THE ILLINOIS SUPREME COURT CONSISTENTLY HAS CONSTRUED THIS STATUTE AS
REQUIRING APPOINTMENT OF COUNSEL ONLY WHEN A DEFENDANT REQUESTS COUNSEL
AND STATES ON OATH THAT HE CANNOT PROCURE COUNSEL.  IT IS EXPRESSLY
HELD THAT THE PROVISION "DOES NOT PLACE UPON THE COURT THE DUTY TO
PROFFER THE SERVICES OF COUNSEL  ...  ," PEOPLE V. LAVENDOWSKI, 326
ILL. 173, 176, NOR DOES IT REQUIRE ADVISING DEFENDANTS OF THEIR RIGHT
TO COUNSEL.  PEOPLE V. CORRIE, 387 ILL. 587, 589-590.  SEE ALSO PEOPLE
V. CORBETT, 387 ILL. 41; PEOPLE V. CHILDERS, 386 ILL. 312; PEOPLE V.
FUHS, 390 ILL. 67.  AND THE FAILURE OF THE DEFENDANT TO STATE HIS NEED
AND INABILITY TO PROCURE COUNSEL UNDER OATH IS TAKEN APPARENTLY AS A
WAIVER OF THE RIGHT.  CF. PEOPLE V. STUBBLEFIELD, 391 ILL. 609, 610. 
FN2 

FINALLY, THE OPINION OF THE ILLINOIS COURT IN THIS CASE SHOWS THAT
PETITIONERS WERE DENIED RELIEF ON THE BASIS OF THESE RULES.  FN3 

IN THE LIGHT OF THE ILLINOIS STATUTES AND DECISIONS, THEREFORE, THE
PRESENT RECORD CAN BE TAKEN TO SUSTAIN NO PRESUMPTION THAT THE TRIAL
COURT OFFERED COUNSEL TO PETITIONERS, INQUIRED CONCERNING THEIR NEED
FOR COUNSEL OR ABILITY TO SECURE SUCH AID, OR ADVISED THEM IN ANY WAY
OF THEIR RIGHT TO HAVE THAT ASSISTANCE.  THE ONLY TENABLE PRESUMPTION
IS THAT THE COURT REFRAINED DELIBERATELY, IN ACCORDANCE WITH THE STATE
LAW, FROM TAKING ACTION IN ANY OF THESE RESPECTS. 

MOREOVER, WHEN MEN APPEAR IN COURT FOR TRIAL OR PLEA, OBVIOUSLY
WITHOUT COUNSEL OR SO FAR AS APPEARS THE MEANS OF SECURING SUCH AID,
UNDER SERIOUS CHARGES SUCH AS WERE MADE HERE INVOLVING PENALTIES OF THE
CHARACTER IMPOSED, IT IS ALTOGETHER INCONSISTENT WITH THEIR FEDERAL
CONSTITUTIONAL RIGHT FOR THE COURT TO SHUT ITS EYES TO THEIR APPARENTLY
HELPLESS CONDITION WITHOUT SO MUCH AS AN INQUIRY CONCERNING ITS CAUSE. 
A SYSTEM SO CALLOUS OF THE RIGHTS OF MEN, NOT ONLY IN THEIR PERSONAL
FREEDOM BUT IN THEIR RIGHTS TO TRIAL COMPORTING WITH ANY CONCEPTION OF
FAIRNESS, AS TO TOLERATE SUCH ACTION, IS IN MY OPINION WHOLLY CONTRARY
TO THE SCHEME OF THINGS THE NATION'S CHARTER ESTABLISHES.  COURTS AND
JUDGES, UNDER THAT PLAN, OWE SOMETHING MORE THAN THE NEGATIVE DUTY TO
SIT SILENT AND BLIND WHILE MEN GO ON THEIR WAY TO PRISON, FOR ALL THAT
APPEARS, FOR WANT OF ANY HINT OF THEIR RIGHTS. 

ADDING TO THIS BLINDNESS A "PRESUMPTION OF REGULARITY" TO SUSTAIN
WHAT HAS THUS BEEN DONE MAKES A MOCKERY OF JUDICIAL PROCEEDINGS IN ANY
SENSE OF THE ADMINISTRATION OF JUSTICE AND A SNARE AND A DELUSION OF
CONSTITUTIONAL RIGHTS FOR ALL UNABLE TO PAY THE COST OF SECURING THEIR
OBSERVANCE. 

FN1  "WHENEVER IT SHALL APPEAR TO THE COURT THAT A DEFENDANT OR
DEFENDANTS INDICTED IN A CAPITAL CASE, IS OR ARE INDIGENT AND UNABLE TO
PAY COUNSEL FOR HIS OR HER DEFENSE, IT SHALL BE THE DUTY OF THE COURT
TO APPOINT ONE OR MORE COMPETENT COUNSEL FOR SAID DEFENDANT OR
DEFENDANTS, WHO SHALL RECEIVE A REASONABLE SUM FOR SERVICES  ...  "
ILL. REV. STAT. (1945) C. 38, SEC. 730. 

FN2  AND SEE NOTE 3. 

FN3  "IT IS FIRST CONTENDED BY PLAINTIFFS IN ERROR THAT THEY DID NOT
HAVE COUNSEL APPOINTED TO REPRESENT AND PROTECT THEIR RIGHTS.  IT IS
NOT SHOWN BY THE RECORD THAT THE DEFENDANTS INFORMED THE COURT OR IN
ANY WAY INDICATED THAT THEY DESIRED COUNSEL.  WE HAVE REPEATEDLY HELD
THAT THE RIGHT TO BE REPRESENTED BY COUNSEL IS A PERSONAL RIGHT WHICH A
DEFENDANT MAY WAIVE OR CLAIM AS HE HIMSELF MAY DETERMINE.  (PEOPLE V.
FUHS, 390 ILL. 67.)  THIS CONTENTION IS WITHOUT MERIT."  394 ILL. 194,
195. 
..END :
























GAYES V. NEW YORK, 332 U.S. 145 


NO. 405.  ARGUED MAY 2, 1947.  - DECIDED JUNE 23, 1947.  - AFFIRMED. 


UPON A PLEA OF GUILTY IN A CRIMINAL PROSECUTION IN A STATE COURT,
PETITIONER WAS SENTENCED AS A SECOND OFFENDER, THE LENGTH OF THE
SENTENCE BEING BASED PARTLY ON A PREVIOUS CONVICTION.  UPON SENTENCE AS
A SECOND OFFENDER, PETITIONER HAD FULL OPPORTUNITY, SO FAR AS APPEARS,
TO CONTEST ANY INFIRMITY IN THE PREVIOUS SENTENCE.  WHILE SERVING THE
SECOND SENTENCE, PETITIONER APPLIED TO THE COURT WHICH HAD IMPOSED THE
EARLIER SENTENCE TO VACATE THE JUDGMENT THERE RENDERED AGAINST HIM, ON
THE GROUND OF DENIAL OF HIS RIGHT TO COUNSEL UNDER THE FEDERAL
CONSTITUTION.  THE STATE COURT DENIED THE MOTION, AND ITS JUDGMENT IS
HERE AFFIRMED.  PP. 147-149. 

GAYES V. NEW YORK. 

CERTIORARI TO THE COUNTY COURT OF MONROE COUNTY, NEW YORK. 

PETITIONER'S APPLICATION TO A STATE COURT TO VACATE A JUDGMENT THERE
RENDERED AGAINST HIM WAS DENIED WITHOUT OPINION.  UNDER THE STATE LAW,
NO REVIEW COULD BE HAD OF THIS DETERMINATION.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 710.  AFFIRMED, P. 149. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT IN AN
OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE
JACKSON JOIN. 

THIS IS ANOTHER CASE IN WHICH RELEASE IS SOUGHT FROM CONFINEMENT
UNDER A SENTENCE BY A STATE COURT FOLLOWING A PLEA OF GUILTY, ON A
CLAIM OF A DENIAL OF DUE PROCESS OF LAW THROUGH WANT OF BENEFIT OF
COUNSEL. 

THE CIRCUMSTANCES ARE THESE.  ON JULY 15, 1938, GAYES, THEN A LAD OF
SIXTEEN, WAS ARRAIGNED IN THE COUNTY COURT OF MONROE COUNTY, NEW YORK,
UPON AN INDICTMENT CHARGING BURGLARY IN THE THIRD DEGREE AND PETTY
LARCENY.  ACCORDING TO THE RECORD OF CONVICTION, HE WAS ASKED, IN
ACCORDANCE WITH THE REQUIREMENT OF SEC. 308 OF THE NEW YORK CODE OF
CRIMINAL PROCEDURE, WHETHER "HE DESIRED THE AID OF COUNSEL," AND HE
ANSWERED "NO."  FN1  IMPOSITION OF SENTENCE WAS POSTPONED TO JULY 28. 
WHEN ON THAT DAY GAYES APPEARED FOR JUDGMENT, HE WAS ASKED, AGAIN
ACCORDING TO THE REQUIREMENTS OF NEW YORK LAW, WHETHER "HE HAD ANY
LEGAL CAUSE TO SHOW WHY JUDGMENT SHOULD NOT BE PRONOUNCED AGAINST
HIM."  NEW YORK CODE OF CRIMINAL PROCEDURE SEC. 480.  AND "NO
SUFFICIENT CAUSE APPEARING," THE RECORD CONTINUES, GAYES WAS COMMITTED
TO A NEW YORK STATE VOCATIONAL SCHOOL TO BE DEALT WITH THERE ACCORDING
TO LAW.  IT APPEARS FROM THE FACTS BEFORE US THAT GAYES DID NOT STAY AT
THIS CORRECTIONAL INSTITUTION AS LONG AS NEW YORK LAW WOULD HAVE
AUTHORIZED HIS DETENTION.  SEE NEW YORK PENAL LAW SECS. 2184-A AND
2189, IN CONNECTION WITH SEC. 407.  FOR, ON OCTOBER 14, 1941, HE
PLEADED GUILTY, IN THE COUNTY COURT OF SCHENECTADY, NEW YORK, TO A NEW
CHARGE OF BURGLARY IN THE THIRD DEGREE.  THE RECORD OF THIS LATTER
PROCEEDING DOES NOT INDICATE WHETHER THIS TIME HE WAS OR WAS NOT
REPRESENTED BY COUNSEL.  BUT NO CLAIM IS MADE THAT THIS PLEA OF GUILTY,
OR THE SENTENCE UNDER IT, HAS ANY INFIRMITY FOR LACK OF LEGAL
ASSISTANCE.  GAYES' CLAIM IS THAT HE WAS SENTENCED AS A SECOND OFFENDER
BY THE INCLUSION OF THE IMPROPER SENTENCE TO THE VOCATIONAL SCHOOL IN
1938. 

IN ACCORDANCE WITH NEW YORK PROCEDURE, GAYES, PRO SE, FILED IN THE
COUNTY COURT OF MONROE COUNTY, NEW YORK, AN APPLICATION TO VACATE THE
JUDGMENT RENDERED AGAINST HIM IN THAT COURT ON JULY 28, 1938.  HE
CLAIMED THAT IN THE PROCEEDINGS WHICH LED TO THAT JUDGMENT HE HAD NOT
BEEN INFORMED OF HIS "CONSTITUTIONAL RIGHTS OF ASSISTANCE OF COUNSEL,"
THAT HE "COULD NOT HAVE UNDERSTOOD HIS RIGHTS TO COUNSEL" AND THAT
"YOUTHS OF THE AGE OF 16 YEARS CANNOT INTELLIGENTLY AND COMPETENTLY
WAIVE THEIR RIGHTS."  SINCE, ACCORDING TO THIS CLAIM, THE FIRST
SENTENCE WAS VOID, HE CHALLENGED THE VALIDITY OF THE SENTENCE IN 1941
BECAUSE THE LENGTH OF THE SECOND SENTENCE WAS PARTLY BASED UPON THE
1938 CONVICTION. 

UPON THIS RECORD, THE COUNTY COURT DENIED THE MOTION WITHOUT
OPINION.  AS NEW YORK LAW THEN STOOD, NO REVIEW COULD THERE BE HAD OF
THIS DETERMINATION.  SEE PEOPLE V. GERSEWITZ, 294 N.Y. 163, 61 N.E.2D
427.  THIS MADE THE COUNTY COURT THE HIGHEST COURT OF THE STATE OF NEW
YORK FOR PURPOSES OF OUR REVIEW.  CANIZIO V. NEW YORK, 327 U.S. 82,
85.  BUT SEE CHAPTER 706 OF THE NEW YORK LAWS OF 1947.  WE BROUGHT THE
CASE HERE, 329 U.S. 710, AS ONE OF A SERIES, FOR FURTHER CONSIDERATION
OF THE CIRCUMSTANCES UNDER WHICH THE REQUIREMENTS OF DUE PROCESS IMPLY
A DUTY TO SUPPLY COUNSEL TO DEFENDANTS IN STATE PROSECUTIONS. 

THE GUIDING PRINCIPLES BEARING ON THE GENERAL PROBLEM HAVE BEEN SET
FORTH IN THE OPINION IN FOSTER V. ILLINOIS, JUST DECIDED, ANTE, P.
134.  INSOFAR AS THE FACTS OF THIS CASE PRESENT A PARTICULAR VARIANT,
THEY ARE CONTROLLED BY OUR DECISION IN CANIZIO V. NEW YORK, SUPRA.  WE
THERE HELD THAT WHATEVER DOUBTS MAY ARISE FROM THE CIRCUMSTANCES OF A
PLEA OF GUILTY, IF, BEFORE SENTENCE IS IMPOSED, THE OPPORTUNITIES
REQUIRED BY THE CONSTITUTION FOR MEETING THE LEGAL IMPLICATIONS OF THE
PLEA ARE SATISFIED, THE SENTENCE MUST STAND.  AND SO, THE QUESTIONS
THAT MAY BE RAISED REGARDING THE CIRCUMSTANCES ATTENDING THE IMPOSITION
OF GAYES' COMMITMENT TO THE VOCATIONAL INSTITUTION IN 1938 ARE NOT NOW
OPEN.  GAYES IS COMPLAINING OF HIS SENTENCE FOLLOWING HIS PLEA OF
GUILTY IN 1941.  FN2  WHAT HE WANTS IS TO BE RELIEVED OF HIS
IMPRISONMENT UNDER THAT SENTENCE.  THAT SENTENCE, TO BE SURE, PARTLY
TOOK INTO ACCOUNT HIS EARLIER SENTENCE IN 1938.  BUT UPON HIS
SUBSEQUENT SENTENCE, AS A SECOND OFFENDER, IN 1941, HE HAD FULL
OPPORTUNITY, SO FAR AS APPEARS, TO CONTEST WHATEVER INFIRMITY HE MAY
HAVE CLAIMED IN THE EARLIER SENTENCE WHEN THE FACT OF THAT SENTENCE WAS
INCLUDED IN THE SENTENCE WHICH HE IS NOW SERVING.  FN3  SINCE THE
PROCESS LEADING UP TO THE SECOND SENTENCE IS NOT CHALLENGED HE CANNOT
NOW, SO FAR AS THE UNITED STATES CONSTITUTION IS CONCERNED, BY A FLANK
ATTACK, CHALLENGE THE SENTENCE OF 1938.  JUDGMENT AFFIRMED. 

FN1  SUBSEQUENT TO THE PROCEEDINGS BEFORE THE COUNTY COURT OF MONROE
NOW UNDER REVIEW, THE MINUTES OF THE ORIGINAL PROCEEDINGS AGAINST GAYES
CAME TO LIGHT.  BY STIPULATION OF COUNSEL THESE MINUTES ARE HERE. 
ACCORDING TO THEM, THE PRECISE QUESTION PUT TO GAYES BY THE ASSISTANT
DISTRICT ATTORNEY IN THE PRESENCE OF THE JUDGE WAS, "DO YOU NEED A
LAWYER BEFORE YOU ENTER A PLEA OF GUILTY OR NOT GUILTY TO THIS
INDICTMENT?"  TO WHICH GAYES REPLIED, "NO, SIR."  IT MAY BE
INCONCLUSIVELY DEBATED WHETHER IF GAYES WAS ASKED "IF HE DESIRED THE
AID OF COUNSEL," AS STATED IN THE ENTRY IN THE RECORD OF CONVICTION, HE
WAS BETTER INFORMED OF HIS RIGHTS, THAN IF HE WAS ASKED, "DO YOU NEED A
LAWYER?"  IN VIEW OF OUR DISPOSITION, THE DIFFERENCE IN SIGNIFICANCE
BECOMES IMMATERIAL, AND IT IS ALSO IMMATERIAL WHETHER, IF THERE WERE A
DIFFERENCE, WE COULD CONSIDER, EVEN IN A CASE INVOLVING BELATED RELEASE
FROM STATE DETENTION, A MATTER NOT BEFORE THE COURT WHOSE JUDGMENT IS
HERE FOR REVIEW.  BUT THE DIFFERENCES THAT MAY EXIST BETWEEN FORMAL
ENTRY IN THE MINUTES OF AN ACCEPTANCE OF A PLEA AND WHAT WAS ACTUALLY
SAID CONTEMPORANEOUSLY LENDS FORCE TO THE CAUTION FREQUENTLY EXPRESSED
THAT EVERY INTENDMENT MUST BE MADE IN SUPPORT OF THE DUE OBSERVANCE OF
LAW IN THE RENDERING OF JUDGMENTS WHICH ARE COLLATERALLY ATTACKED,
OFTEN AFTER A CONSIDERABLE PASSAGE OF TIME. 

FN2  GAYES IS DETAINED UNDER THE 1941 SENTENCE IMPOSED BY THE COUNTY
COURT OF SCHENECTADY.  A MOTION ATTACKING THAT SENTENCE WOULD, UNDER
NEW YORK LAW, HAVE TO BE MADE IN THAT COURT.  WHAT HE IS ASKING IS THE
INVALIDATION OF THE PRIOR SENTENCE, UNDERLYING AS IT WERE THE
SCHENECTADY SENTENCE, PRESUMABLY AS A FIRST STEP IN GETTING RELIEF FROM
DETENTION UNDER THE LATTER SENTENCE.  WE ARE TREATING THIS PROCEEDING,
FOR OUR PURPOSES, AS ONE SEEKING, IN EFFECT, RELIEF FROM THE 1941
SENTENCE WITHOUT REGARD TO FORMAL DISTINCTIONS WHICH MIGHT OTHERWISE BE
RELEVANT. 

FN3  ACCORDING TO THE STATE, GAYES COULD HAVE RAISED THE CLAIM HE NOW
MAKES AGAINST THE 1938 CONVICTION AT THE TIME HE WAS SENTENCED IN 1941,
AND FROM A DENIAL OF RELIEF COULD HAVE APPEALED TO THE HIGHER COURTS. 
THIS WAS NOT CONTRADICTED BY THE PETITIONER AND IS NOT BROUGHT INTO
QUESTION IN ANY OPINION OF THE HIGHER COURTS OF NEW YORK.  IT HAS BEEN
RULED IN COURTS OF VERY LIMITED AUTHORITY THAT A SECOND OFFENDER CANNOT
APPLY FOR RESENTENCE ON A CLAIM THAT THERE WAS A DEFECT IN THE FIRST
SENTENCE IMPOSED BY ANOTHER COURT.  SEE PEOPLE V. KELLER, 37 N.Y.S.2D
61(GEN.  SESS.  N.Y. COUNTY), AND PEOPLE V. PATERNO, 182 MISC. 491, 50
N.Y.S.2D 713(CHATAUQUA COUNTY COURT).  NEITHER CASE, HOWEVER, PRESENTED
THE CLAIM THAT A VIOLATION OF THE UNITED STATES CONSTITUTION VITIATED
THE FIRST SENTENCE, AND NEITHER CASE RAISED THE POWER OF THE COURT AT
THE TIME OF SENTENCING TO CONSIDER SUCH A CLAIM.  IT IS CERTAINLY
WITHIN THE POWER OF A DULY ADVISED DEFENDANT, BEFORE PLEADING GUILTY AS
A SECOND OFFENDER, TO RAISE THE CONSTITUTIONAL INVALIDITY OF THE FIRST
SENTENCE SO AS TO SECURE OPPORTUNITY APPROPRIATELY TO CHALLENGE SUCH
INVALIDITY.  NOTHING THAT IS HEREIN DECIDED PRECLUDES PETITIONER FROM
RAISING A DENIAL OF HIS CONSTITUTIONAL RIGHT UPON A RECORD THAT
DISCLOSES CIRCUMSTANCES OTHER THAN THOSE BEFORE US.  AN ORDER ON SUCH A
MOTION IS NOW REVIEWABLE BY THE NEW YORK SUPREME COURT AND IN CERTAIN
INSTANCES BY THE NEW YORK COURT OF APPEALS. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE MURPHY CONCUR, DISSENTING. 

A SIXTEEN-YEAR-OLD BOY, INDIGENT AND ALONE, WITHOUT RELATIVES,
FRIENDS, MONEY OR COUNSEL TO AID HIM AND, ACCORDING TO THE UNDENIED
ALLEGATIONS OF THE PETITION, WITHOUT KNOWLEDGE OF HIS CONSTITUTIONAL
RIGHTS,  FN1  PLEADED GUILTY IN 1938, UNDER AN INDICTMENT SPECIFYING
TWO HIGHLY TECHNICAL AND DISTINCT CHARGES,  FN2  TO THE CRIME OF
BURGLARY IN THE THIRD DEGREE.  FN3  THE PROPERTY HE WAS CHARGED WITH
INTENDING TO STEAL  FN4  CONSISTED OF CIGARETTES OF THE VALUE OF
SEVENTY-FIVE CENTS, TWO FLASHLIGHTS WORTH ONE DOLLAR, AND THREE DOLLARS
IN CURRENCY.  THE SENTENCE IMPOSED ON THAT PLEA HAS BEEN SERVED.  FN5
HE IS NOW CONFINED AS A SECOND OFFENDER UNDER SENTENCE FOR ANOTHER
OFFENSE OF SIMILAR CHARACTER IMPOSED IN 1941,  FN6  WHEN HE WAS
NINETEEN AND ALSO WITHOUT RELATIVES, FRIENDS OR COUNSEL SO FAR AS
APPEARS.  FN7 

ONE PART OF THE OPINION ANNOUNCED IN THIS CASE, AS I UNDERSTAND,
TAKES THE VIEW THAT BECAUSE GAYES DID NOT ATTACK THE 1938 SENTENCE IN
1941, WHEN HE WAS SENTENCED AS A SECOND OFFENDER, HE IS FOREVER
FORECLOSED FROM DOING SO ON THE FACTS AND ISSUES PRESENTED ON THIS
RECORD, ALTHOUGH AS A SECOND OFFENDER HE IS NOW SUFFERING THE
CONSEQUENCES OF THE 1938 SENTENCE.  FN8  FOR THIS CONCLUSION RELIANCE
IS PLACED UPON NO NEW YORK AUTHORITIES; INDEED, AS I READ THE STATE
CASES, THE COURT'S DECISION IS MADE IN THE FACE OF THEIR RULINGS THAT
THE PROCEDURE PETITIONER HAS FOLLOWED IS THE APPROPRIATE ONE FOR
RAISING THE ISSUES HE PRESENTS.  FN9 

I AM UNWILLING TO SUBSCRIBE TO SUCH A DOCTRINE OF FORFEITURES
CONCERNING CONSTITUTIONAL RIGHTS, WHICH IN THE EXTREME CIRCUMSTANCES OF
THIS CASE SEEMS TO ME SHOCKING. 

UNDER ALL OF THE NEW YORK DECISIONS WHICH HAVE PASSED UPON THE
QUESTION,  FN10  THE PROPER AND APPARENTLY THE NECESSARY PROCEDURE, SEE
PEOPLE V. KELLER, 37 N.Y.S.2D 61, 62, FOR ATTACKING A SENTENCE AS
SECOND OFFENDER, UPON THE GROUND THAT THE FORMER CONVICTION WAS
INVALID, IS FIRST BY MOTION IN THE COURT IMPOSING THE INITIAL SENTENCE
TO VACATE IT, AFTER WHICH IF THE MOTION IS SUCCESSFUL THE SENTENCE FOR
THE SECOND OFFENSE MAY BE ATTACKED AND VACATED.  FN11  IN OTHER WORDS,
THE SECOND OFFENDER, SITUATED AS IS PETITIONER, MUST FIRST OVERTURN HIS
FIRST CONVICTION IN THE COURT WHERE IT WAS OBTAINED, BEFORE HE CAN
ATTACK THE SECOND SENTENCE FOUNDED IN PART UPON THAT CONVICTION. 

THIS PROCEDURE IN MY OPINION IS A REASONABLE ONE WITHIN THE POWER OF
A STATE TO REQUIRE, AT LEAST WHERE BOTH OFFENSES HAVE TAKEN PLACE
WITHIN ITS JURISDICTION.  AND I KNOW OF NO REASON WHY THIS COURT SHOULD
DISREGARD OR OVERRIDE IT.  MUCH LESS IS IT WITHIN OUR PROVINCE TO
INVERT THE STATE PROCEDURE, IF THAT IS THE EFFECT OF THE DUBIOUS
SUGGESTION THAT PETITIONER'S RIGHTS PERHAPS MAY BE SAVED UPON SOME
OTHER RECORD "THAT DISCLOSES CIRCUMSTANCES OTHER THAN THOSE BEFORE US,"
PRESUMABLY IF AT ALL BY MOTION BEFORE THE COURT WHICH IMPOSED THE 1941
SENTENCE TO VACATE IT. FN12 

NO STATE DECISIONS ARE CITED OR, IT WOULD SEEM IN VIEW OF THE
CONTRARY AUTHORITIES CITED ABOVE, FN13  CAN BE CITED TO SUPPORT SUCH A
VIEW.  NOR IS IT REQUIRED BY ANYTHING SAID OR DONE IN CANIZIO V. NEW
YORK, 327 U.S. 82, IF INDEED SUCH A MATTER COULD EVER BE WITHIN OUR
FUNCTION.  THE CANIZIO DECISION HAS NO RELEVANCE TO THIS CASE, EITHER
FOR PRESCRIBING THE STATE PROCEDURE OR FOR THE CONSTITUTIONAL ISSUE. 
IT HELD ONLY THAT WHERE A DEFENDANT HAD COUNSEL AT THE TIME OF HIS
SENTENCE AND COULD THEN HAVE MOVED TO WITHDRAW HIS PRIOR PLEA OF
GUILTY, HE WAS NOT PREJUDICED BY THE CONVICTING COURT'S PREVIOUS
FAILURE TO INFORM HIM OF HIS RIGHT TO COUNSEL. 

THAT CASE HAD NOTHING TO DO WITH THE STATE PROCEDURE OPEN TO ONE
CONVICTED AS A SECOND OFFENDER FOR CHALLENGING HIS SENTENCE ON THE
GROUND THAT THE FIRST CONVICTION WAS INVALID FOR FEDERAL CONSTITUTIONAL
REASONS.  AND THE FACTS, ON THE MERITS, WERE VERY DIFFERENT FROM THOSE
PRESENTED HERE.  WHEREAS, AMONG OTHER THINGS, IN THAT CASE THE
PETITIONER DID HAVE COUNSEL BEFORE HIS SENTENCE WAS IMPOSED, HERE NOT
ONLY WAS GAYES DENIED COUNSEL ALTOGETHER IN THE FIRST TRIAL, BUT SO FAR
AS THE RECORD DISCLOSES HE HAD NONE IN THE TRIAL FOR THE SECOND
OFFENSE.  I DO NOT THINK THE CANIZIO DECISION CAN BE HELD TO COVER SUCH
A WHOLLY DIFFERENT SITUATION AS THIS.  IT DID NOT RULE THAT, IF A
CONVICTED PERSON HAS NEVER HAD COUNSEL, THE FACT THAT IN A LATER
PROCEEDING HE CONCEIVABLY MIGHT HAVE HAD SUCH AID IF HE HAD APPLIED FOR
IT CURES THE DENIAL, MORE PARTICULARLY WHEN SO FAR AS APPEARS HE WAS
TREATED NO BETTER DURING HIS TRIAL FOR THE SECOND OFFENSE THAN DURING
THE FIRST, AND WHEN MOREOVER HIS PRESENT ATTACK IS MADE AS A
PRELIMINARY ONE REQUIRED BY STATE LAW FOR SHOWING THE SECOND SENTENCE
INVALID.    IN MY JUDGMENT IT IS FOR THE STATE, NOT THIS COURT, TO SAY
WHETHER THE ATTACK UPON THE FIRST SENTENCE AS INCREASING THE SECOND
SHALL BE MADE ON THE FLANK OR FRONTALLY, OR PERCHANCE IN EITHER WAY. 
INDEED, UNDER THE LAW OF NEW YORK, WHICH IS CONTROLLING ON US, THE SO
CALLED "FLANK" ATTACK IS APPARENTLY THE ONLY ONE NOW OPEN TO
PETITIONER.  IN THE FACE OF SO CLEAR A VIOLATION OF CONSTITUTIONAL
RIGHT AS THIS CASE PRESENTS, WE SHOULD NEITHER FORECLOSE THAT AVENUE
NOR SUBSTITUTE FOR IT ANOTHER DUBIOUSLY AVAILABLE ONE OF OUR OWN
MANUFACTURE.    THE JUDGMENT SHOULD BE REVERSED. 

FN1  NO ANSWER WAS FILED TO THE PETITION AND THE TRIAL COURT
DETERMINED THE ISSUES ON THE PLEADINGS WITHOUT HEARING OR APPEARANCE OF
PETITIONER IN COURT, IN PERSON OR BY COUNSEL.  THE ALLEGATION OF
PETITIONER THAT WHEN ASKED WHETHER HE "DESIRED COUNSEL," HE ANSWERED
"NO" IN THE BELIEF THAT HE WOULD HAVE TO PAY THE LAWYER'S FEE, AND WAS
NOT INFORMED TO THE CONTRARY IS, OF COURSE, TO BE TAKEN AS TRUE IN THE
ABSENCE OF DENIAL AND OF CONTRARY EVIDENCE WHICH MIGHT HAVE BEEN
TENDERED ON A HEARING. 

FN2  THE FIRST COUNT CHARGED THAT PETITIONER "BROKE AND ENTERED THE
BUILDING AND GARAGE OF FRANCIS MARLOW  ... WITH INTENT TO COMMIT
THEREIN THE CRIME OF LARCENY"; THE SECOND COUNT CHARGED PETIT LARCENY
OF THE PROPERTY DESCRIBED IN THE TEXT ABOVE. 

FN3  THE SENTENCE WAS TO CONFINEMENT IN THE NEW YORK STATE VOCATIONAL
INSTITUTE, WHICH WHEN IMPOSED FOR AN UNSPECIFIED TERM UNDER NEW YORK
PENAL LAW SEC. 2184-A CARRIED A MAXIMUM OF TEN YEARS, WHICH IS THE
MAXIMUM FOR BURGLARY IN THE THIRD DEGREE AS A FIRST OFFENSE.  N.Y.
PENAL LAW SEC. 407(3). 

FN4  UNDER THE SECOND COUNT, FOR PETIT LARCENY OR THEFT, BEING ALSO
PRESUMABLY THE PROPERTY WITH RESPECT TO WHICH IT WAS CHARGED IN THE
FIRST COUNT THAT PETITIONER BROKE AND ENTERED WITH INTENT TO COMMIT
LARCENY. 

FN5  PETITIONER WAS HELD UNDER THE FIRST SENTENCE, SEE NOTE 3, UNTIL
DECEMBER 14, 1943, WHEN THE NEW YORK BOARD OF PAROLE DIRECTED THAT
SERVICE OF THE SENTENCE AS SECOND OFFENDER BEGIN.  THE DATE OF
TERMINATION OF THE LATTER SENTENCE, SEE NOTE 6, WAS CORRESPONDINGLY
POSTPONED. 

FN6 THE SENTENCE OF TEN TO TWENTY YEARS AS SECOND OFFENDER IS
MANDATORY.  N.Y. PENAL LAW SEC. 1941.  HAD PETITIONER BEEN SENTENCED IN
1941 AS A FIRST RATHER THAN A SECOND OFFENDER, THE MAXIMUM SENTENCE
ALLOWED WOULD HAVE BEEN FIVE TO TEN YEARS, N.Y. PENAL LAW SECS. 2189,
407, AND HE MIGHT HAVE BEEN SENT TO A REFORMATORY RATHER THAN PRISON. 
N.Y. PENAL LAW SEC. 2185. 

FN7  THE "RECORD OF CONVICTION" IN THE TRIAL FOR THE SECOND OFFENSE,
CONTAINED IN THE RECORD HERE, DISCLOSES THAT PETITIONER, HAVING BEEN
CHARGED AND ARRAIGNED, FIRST PLEADED NOT GUILTY, THEN WITHDREW THAT
PLEA AND ENTERED ONE OF GUILTY.  IT IS THEN RECITED THAT PETITIONER
APPEARED FOR JUDGMENT AND, "HAVING BEEN ASKED BY THE CLERK WHETHER HE
HAD ANY LEGAL CAUSE TO SHOW WHY JUDGMENT SHOULD NOT BE PRONOUNCED
AGAINST HIM, AND NO LEGAL CAUSE HAVING BEEN SHOWN" OR APPEARING TO THE
COURT, JUDGMENT AND SENTENCE WERE THEREUPON PRONOUNCED.  THERE IS NO
RECITAL THAT PETITIONER WAS REPRESENTED BY COUNSEL, WAS INFORMED OF HIS
RIGHTS IN ANY MANNER, OR WAS ADMONISHED OF THE CONSEQUENCES OF HIS
PLEA. 

FN8  SEE NOTES 3, 5, 6 SUPRA.  SEE ALSO NOTE 12 INFRA AND TEXT. 

FN9  SEE NOTE 11 INFRA. 

FN10  IN THE ABSENCE OF DETERMINATION BY A STATE'S HIGHEST TRIBUNAL
THE RULE ANNOUNCED AND APPLIED BY OTHER STATE COURTS IS TO BE TAKEN BY
US AS DETERMINING QUESTIONS OF STATE LAW.  CF. WEST V. A.T. & T. CO.,
311 U.S. 223. 

FN11  IF THE 1938 CONVICTION IS HELD VOID, UNDER STATE LAW PETITIONER
THEN MAY MOVE TO VACATE THE 1941 SENTENCE IN THE COURT WHICH IMPOSED
IT, AND FOR RESENTENCING ACCORDING TO STATE LAW.  SEE PEOPLE EX REL.
SLOANE V. LAWES, 255 N.Y. 112; PEOPLE EX REL. CAROLLO V. BROPHY, 294
N.Y. 540; PEOPLE V. KELLER, 37 N.Y.S.2D 61.  AND THE PROPER FORUM FOR
ATTACKING THE 1938 CONVICTION, AS A PRELIMINARY TO ATTACK ON THAT OF
1941, IS THE ONE WHERE THE FORMER WAS OBTAINED, BY THE MOTION TO VACATE
WHICH PETITIONER HAS EMPLOYED.  PEOPLE V. BERNOFF, 61 N.Y.S.2D 46;
PEOPLE V. FOSTER, 182 MISC. 73; PEOPLE V. PATERNO, 187 MISC. 56, WITH
WHICH COMPARE PEOPLE V. PATERNO, 182 MISC. 491; CF. PEOPLE V.
GERSEWITZ, 294 N.Y. 163, 167; PEOPLE V. KELLER, SUPRA, AT 63. 

FN12  THE OPINION ANNOUNCED IN CONJUNCTION WITH THE COURT'S JUDGMENT
SEEMS TO SUGGEST THAT THE DECISIONS ESTABLISHING THE STATE PROCEDURE
FOLLOWED IN THIS CASE ARE NOT CONTROLLING FOR OUR DISPOSITION, ON WHAT
BASIS I AM UNABLE TO UNDERSTAND, SEE NOTE 10 SUPRA, UNLESS UPON THE
UNTENABLE ONE THAT STATE RULINGS UPON CRIMINAL PROCEDURES AND THE
PROPER FORUM FOR UTILIZING THEM ARE NOT BINDING FOR FEDERAL
DETERMINATIONS TO THE SAME EXTENT AS ARE SUCH RULINGS IN CIVIL
MATTERS. 

ONLY UPON SOME SUCH BASIS IS THE DUBIOUS SUGGESTION JUSTIFIED THAT
PETITIONER SHOULD HAVE RAISED THE QUESTION OF THE VALIDITY OF HIS FIRST
SENTENCE AT THE TIME OF HIS SENTENCING AS A SECOND OFFENDER AND IN THAT
FORUM.  NOT ONLY IS THIS CONTRARY TO THE ESTABLISHED STATE PROCEDURE,
SEE NOTE 11, BUT IT IS EXPRESSLY QUALIFIED BY THE FURTHER SUGGESTION
THAT PETITIONER'S RIGHTS MAY POSSIBLY BE SAVED "UPON A RECORD THAT
DISCLOSES CIRCUMSTANCES OTHER THAN THOSE BEFORE US," AND IT SEEMS TO BE
CONTRADICTED BY THE FURTHER STATEMENT THAT "THE QUESTIONS THAT MAY BE
RAISED REGARDING THE CIRCUMSTANCES ATTENDING THE IMPOSITION OF GAYES'
COMMITMENT  ...  IN 1938 ARE NOT NOW OPEN."  IT IS PERTINENT TO
INQUIRED WHETHER GAYES IS TO HAVE ANOTHER CHANCE, THROUGH A LOCAL
PROCEDURE PRESCRIBED BY THIS COURT ALONE, OR WHETHER THE CONSTITUTIONAL
QUESTIONS NOW PRESENTED ARE FORECLOSED BY HIS FAILURE TO FOLLOW A
PROCEDURE NOT PRESCRIBED OR, SO FAR AS APPEARS, PERMITTED BY THE
STATE. 

FN13  SEE NOTE 11. 
..END :














CALDAROLA V. ECKERT, 332 U.S. 155 


NO. 625.  ARGUED MARCH 31, APRIL 1, 1947.  - DECIDED JUNE 23, 1947.  -
295 N.Y. 463, 68 N.E.2D 444, AFFIRMED. 


A STEVEDORE, WHILE ABOARD AND ENGAGED IN UNLOADING A VESSEL OWNED BY
THE UNITED STATES AND MANAGED BY GENERAL AGENTS UNDER A GENERAL AGENCY
CONTRACT, WAS INJURED BY A DEFECTIVE BOOM.  HE SUED THE AGENTS FOR
DAMAGES IN A STATE COURT.  HELD: 

1.  THE INJURY WAS A MARITIME TORT AND THE STATE COURT HAD
JURISDICTION BY VIRTUE OF SEC. 9 OF THE JUDICIARY ACT OF 1789, WHICH
SAVES "TO SUITORS, IN ALL CASES, THE RIGHT OF A COMMON LAW REMEDY,
WHERE THE COMMON LAW IS COMPETENT TO GIVE IT."  P. 157. 

2.  THE DETERMINATION OF THE STATE COURT THAT A BUSINESS INVITEE,
SUCH AS THE STEVEDORE, IS WITHOUT A REMEDY IN THE COURTS OF THE STATE
AGAINST ONE WHO HAS NO CONTROL AND POSSESSION OF THE PREMISES IS
DECISIVE.  P. 158. 

3.  TO THE EXTENT THAT THE DETERMINATION OF TORT LIABILITY IN THE
STATE COURT INVOLVES THE CONSTRUCTION OF THE CONTRACT BETWEEN THE
AGENTS AND THE UNITED STATES, THE INTERPRETATION OF THE CONTRACT
PRESENTS A FEDERAL QUESTION UPON WHICH THE DETERMINATION OF THE STATE
COURT IS NOT CONCLUSIVE.  P. 158. 

4.  IF, ON A FAIR READING OF THE CONTRACT, THE CONTROL WHICH THE
AGENTS HAD OVER THE VESSEL IS THE KIND OF CONTROL WHICH THE STATE
REQUIRES AS A BASIS OF LIABILITY TO THIRD PERSONS, THE STATE COURTS CAN
NOT SO READ THE CONTRACT AS TO DENY THE RIGHT WHICH THE STATE
RECOGNIZES.  P. 158. 

5.  UNDER THE CONTRACT WITH THE UNITED STATES, THE AGENTS ARE NOT TO
BE DEEMED OWNERS PRO HAC VICE IN POSSESSION AND CONTROL OF THE VESSEL. 
PP. 158-159. 

6.  HUST V. MOORE-MCCORMACK LINES, 328 U.S. 707, AND BRADY V.
ROOSEVELT S.S. CO., 317 U.S. 575, DIFFERENTIATED.  PP. 159-160. 

CALDAROLA V. ECKERT ET AL., DOING BUSINESS AS THOR ECKERT & CO. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

PETITIONER SUED RESPONDENTS IN A STATE COURT OF NEW YORK TO RECOVER
DAMAGES FOR INJURIES SUSTAINED ABOARD A VESSEL WHICH RESPONDENTS WERE
MANAGING AS GENERAL AGENTS UNDER A CONTRACT WITH THE UNITED STATES.  A
VERDICT FOR THE PETITIONER WAS SET ASIDE BY THE APPELLATE DIVISION. 
270 APP. DIV. 563, 61 N.Y.S.2D 164.  THE COURT OF APPEALS AFFIRMED. 
295 N.Y. 463, 68 N.E.2D 444.  THIS COURT GRANTED CERTIORARI.  329 U.S.
704.  AFFIRMED, P. 160. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE S.S. EVERAGRA IS OWNED BY THE UNITED STATES AND MANAGED IN ITS
BEHALF BY THE RESPONDENTS AS GENERAL AGENTS.  (FOR THE RELEVANT
PORTIONS OF THE CONTRACT AND FOR FULL CONSIDERATION OF IT IN RELATION
TO ISSUES OTHER THAN THOSE HERE INVOLVED, REFERENCE IS MADE TO HUST V.
MOORE-MCCORMACK LINES, 328 U.S. 707.)  ON JANUARY 27, 1944, THE
EVERAGRA, DOCKED IN THE NORTH RIVER, NEW YORK CITY, WAS BEING UNLOADED
BY A STEVEDORING CONCERN, THE JARKA COMPANY.  JARKA DID THE UNLOADING
UNDER A CONTRACT WITH THE UNITED STATES, NEGOTIATED THROUGH THE WAR
SHIPPING ADMINISTRATION.  ONE OF ITS PROVISIONS WAS THAT "THE
ADMINISTRATOR SHALL FURNISH AND MAINTAIN IN GOOD WORKING ORDER ALL"
NECESSARY EQUIPMENT.  CALDAROLA, THE PETITIONER, WAS AN EMPLOYEE OF
JARKA.  IN THE COURSE OF HIS WORK ON THE VESSEL HE WAS INJURED.  HE
BROUGHT THIS ACTION IN THE NEW YORK COURTS AGAINST THE RESPONDENTS,
CLAIMING THAT HIS INJURY WAS CAUSED BY A DEFECTIVE BOOM AND THAT THEY
WERE LIABLE FOR FAILING IN THEIR DUTY AS AGENTS TO MAINTAIN IT IN SOUND
CONDITION. 

THE NEW YORK COURT OF APPEALS, AFFIRMING THE APPELLATE DIVISION IN
SETTING ASIDE A VERDICT FOR THE PETITIONER, 270 APP. DIV. 563, 61
N.Y.S.2D 164, HELD THAT UNDER NEW YORK LAW THE RELATION WHICH THE
AGENTS BORE TO THE VESSEL DID NOT MAKE THEM RESPONSIBLE TO A THIRD
PERSON FOR ITS CONDITION.  295 N.Y. 463, 68 N.E.2D 444.  BECAUSE OF
CLAIMED CONFLICT IN THE DECISIONS, PARTICULARLY BETWEEN THIS RULING AND
HUST V. MOORE-MCCORMACK LINES, 328 U.S. 707, WE GRANTED CERTIORARI. 
329 U.S. 704. 

NO DOUBT PETITIONER COULD HAVE SUED THE UNITED STATES IN ADMIRALTY. 
742.  HE CHOSE NOT TO DO SO.  PRESUMABLY TO OBTAIN THE BENEFIT OF TRIAL
BY JURY, HE ASKED FOR RELIEF FROM NEW YORK.  THERE IS NO QUESTION THAT
THE INJURY OF WHICH CALDAROLA COMPLAINS IS A MARITIME TORT.  AS SUCH IT
IS SUABLE IN THE STATE COURTS BY VIRTUE OF SEC. 9 OF THE JUDICIARY ACT
OF 1789 WHICH SAVES "TO SUITORS, IN ALL CASES, THE RIGHT OF A COMMON
LAW REMEDY, WHERE THE COMMON LAW IS COMPETENT TO GIVE IT  ...  "  1
STAT. 76-77.  WHETHER CONGRESS THEREBY RECOGNIZED THAT THERE WERE
COMMON LAW RIGHTS IN THE STATES AS TO MATTERS ALSO COGNIZABLE IN
ADMIRALTY, OR WHETHER IT WAS CONCERNED ONLY WITH "SAVING" TO THE STATES
THE POWER TO USE THEIR COURTS TO VINDICATE RIGHTS DERIVING FROM THE
MARITIME LAW TO THE EXTENT THAT THEIR COMMON LAW REMEDIES MAY BE
AVAILABLE, IS A QUESTION ON WHICH THE AUTHORITIES DO NOT SPEAK WITH
CLARITY.  COMPARE WARING V. CLARKE, 5 HOW.  441, 460-61; TAYLOR V.
CARRYL, 20 HOW.  583, 598-99; 3 STORY ON THE CONSTITUTION (1ST ED.) 
533, N. 3, WITH SCHOONMAKER V. GILMORE, 102 U.S. 118; THE HAMILTON, 207
U.S. 398; CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372; C.J. HENDRY
CO. V. MOORE, 318 U.S. 133; SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85,
88-89.  IN ANY EVENT, WHETHER NEW YORK IS THE SOURCE OF THE RIGHT OR
MERELY AFFORDS THE MEANS FOR ENFORCING IT, HER DETERMINATION IS
DECISIVE THAT THERE IS NO REMEDY IN ITS COURTS FOR SUCH A BUSINESS
INVITEE AGAINST ONE WHO HAS NO CONTROL AND POSSESSION OF PREMISES. 
COMPARE DOUGLAS V. NEW YORK, NEW HAVEN & HARTFORD R. CO., 279 U.S. 377,
AND TESTA V. KATT, 330 U.S. 386. 

THE NEW YORK COURT OF APPEALS AUTHORITATIVELY DETERMINES WHO IS
LIABLE, IN NEW YORK, FOR SUCH AN OCCURRENCE AS THAT OF WHICH CALDAROLA
COMPLAINS.  INSOFAR AS THE ISSUES IN THIS CASE EXCLUSIVELY CONCERN NEW
YORK LAW, THAT COURT HAD THE FINAL SAY IN HOLDING THAT ONE IN THE
RELATION OF THE RESPONDENTS TO THE PETITIONER IS NOT LIABLE FOR THE
TORT OF WHICH THE LATTER COMPLAINS.  BUT TO THE EXTENT THAT THE
DETERMINATION OF TORT LIABILITY IN NEW YORK IS ENTANGLED WITH THE
CONSTRUCTION OF THE CONTRACT BETWEEN THE AGENTS AND THE UNITED STATES,
THE INTERPRETATION OF THAT CONTRACT IS A MATTER OF FEDERAL CONCERN AND
IS NOT CONCLUDED BY THE MEANING WHICH THE STATE COURT MAY FIND IN IT. 

WE AGREE THAT IF, ON A FAIR READING OF THE CONTRACT, THE CONTROL
WHICH THE AGENTS HAD OVER THE VESSEL IS THE KIND OF CONTROL WHICH NEW
YORK REQUIRES AS A BASIS OF LIABILITY TO THIRD PERSONS, THE NEW YORK
COURTS CANNOT SO READ THE CONTRACT AS TO DENY THE RIGHT WHICH NEW YORK
RECOGNIZES.  IT IS NOT CLAIMED THAT AN INJURED PARTY HAS RIGHTS UNDER
THE AGENCY CONTRACT OR THAT IT CREATED DUTIES TO THIRD PERSONS.  ROBINS
DRYDOCK & REPAIR CO. V. FLINT, 275 U.S. 303.  AND SO THE NARROW
QUESTION IS WHETHER THE AGENTS WERE IN POSSESSION AND CONTROL OF THE
EVERAGRA.  THIS IS THE CRUCIAL ISSUE, BECAUSE LIABILITY IN TORT BY THE
AGENTS FOR CALDAROLA'S INJURY WOULD ONLY ARISE IN NEW YORK WHEN THERE
IS SUCH POSSESSION AND CONTROL OF PREMISES ON WHICH INJURY OCCURS, DUE
TO NEGLIGENCE IN THEIR MAINTENANCE.  CULLINGS V. GOETZ, 256 N.Y. 287,
176 N.E. 397.  THE UNITED STATES, AS AMICUS CURIAE, SUBMITTED WHAT WE
DEEM TO BE CONCLUSIVE CONSIDERATIONS AGAINST READING THE CONTRACT SO AS
TO FIND THE AGENTS TO BE OWNERS PRO HAC VICE IN POSSESSION AND CONTROL
OF THE VESSEL.  THE CONSEQUENCES, TO BOTH THE NATIONAL AND
INTERNATIONAL INTERESTS OF THE UNITED STATES, OF SUCH A CONSTRUCTION
WOULD BE TOO FAR-REACHING TO WARRANT SUCH A FORCED READING MERELY IN
ORDER TO HAVE A BASIS ON WHICH TO BUILD LIABILITY UNDER THE LAW OF NEW
YORK.  SERIOUS ISSUES AFFECTING THE IMMUNITY OF GOVERNMENT VESSELS IN
FOREIGN PORTS AS WELL AS IMMUNITY FROM REGULATION AND TAXATION BY LOCAL
GOVERNMENTS WOULD NEEDLESSLY BE RAISED.  AFTER ALL, THE QUESTION IS NOT
WHETHER PETITIONER MAY BE COMPENSATED FOR HIS INJURY.  CONGRESS HAS
MADE PROVISION FOR THAT.  PETITIONER INSISTS, IN ORDER TO ENABLE HIM TO
SUE IN THE COURTS OF NEW YORK, THAT THE AGENTS ARE TO BE DEEMED, AS A
MATTER OF FEDERAL LAW, OWNERS OF THE VESSEL PRO HAC VICE AND,
THEREFORE, AS A MATTER OF STATE LAW, SUBJECT TO THE DUTIES OF SUCH
OWNERSHIP UNDER NEW YORK LAW TOWARD BUSINESS INVITEES.  WE REJECT THIS
CONSTRUCTION. 

OUR PREVIOUS DECISIONS DO NOT REQUIRE IT.  HUST V. MOORE-MCCORMACK
LINES, SUPRA, AROSE UNDER THE JONES ACT.  (ACT OF MARCH 4, 1915, 38
STAT. 1185, AS AMENDED, JUNE 5, 1920, 41 STAT. 1007).  WE THERE HELD
THAT UNDER THE AGENCY CONTRACT THE AGENT WAS THE "EMPLOYER" OF AN
INJURED SEAMAN AS THAT TERM IS USED IN THE JONES ACT, AND A SEAMAN
COULD THEREFORE BRING THE STATUTORY ACTION AGAINST SUCH AN "EMPLOYER." 
THE COURT DID NOT HOLD THAT THE AGENCY CONTRACT MADE THE AGENT FOR ALL
PRACTICAL PURPOSES THE OWNER OF THE VESSEL.  IT DID NOT HOLD THAT IT
IMPOSED UPON HIM, AS A MATTER OF FEDERAL LAW, DUTIES OF CARE TO THIRD
PERSONS, MORE PARTICULARLY TO A STEVEDORE UNDER EMPLOYMENT OF A CONCERN
UNLOADING THE VESSEL PURSUANT TO A CONTRACT WITH THE UNITED STATES. 
BRADY V. ROOSEVELT STEAMSHIP CO., 317 U.S. 575, IS LIKEWISE REMOTE FROM
THE ISSUES DECISIVE OF THIS CASE.  IT MERELY HELD THAT THE SUITS IN
ADMIRALTY ACT, BY FURNISHING AN IN PERSONAM REMEDY AGAINST THE UNITED
STATES, DID NOT FREE THE AGENT FROM LIABILITY FOR HIS OWN TORTS.  THE
BRADY CASE DID NOT REACH THE "DIFFERENT QUESTION" WHETHER "A CAUSE OF
ACTION" AGAINST THE AGENT HAD BEEN ESTABLISHED.  317 U.S. AT 585.  THAT
IS THE PRECISE QUESTION HERE, AND MORE PARTICULARLY, WHETHER THE
CONTRACT CREATED A RELATIONSHIP FROM WHICH, UNDER NEW YORK LAW,
LIABILITY AS TO BUSINESS INVITEES FOLLOWED.  JUDGMENT AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY CONCUR, DISSENTING. 

FOR THE REASONS STATED IN MY SEPARATE OPINION IN HUST V. MOORE
MCCORMACK LINES, 328 U.S. 707, 734, I THINK THAT RESPONDENTS WERE
OWNERS PRO HAC VICE OF THE VESSEL, SINCE THE BUSINESS OF MANAGING AND
OPERATING IT WAS THEIR BUSINESS.  THEY WERE, THEREFORE, PRINCIPALS AND
LIABLE TO PETITIONER, A LONGSHOREMAN WHO WAS INJURED WHILE WORKING ON
THE DECK OF THE VESSEL BY REASON OF THE BREAKING OF A CARGO BOOM, PART
OF THE SHIP'S GEAR. 

THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT HAS REACHED THE
SAME RESULT IN A CASE DECIDED SINCE HUST V. MOORE-MCCORMACK LINES.  IN
MILITANO V. UNITED STATES, 156 F.2D 599, THAT COURT HELD THAT THE AGENT
UNDER THE SAME FORM OF OPERATING AGREEMENT AS WE HAVE HERE WAS OWNER
PRO HAC VICE.  SWAN, J., SPEAKING FOR THE COURT, SAID IN REFERENCE TO
THE HUST CASE, P. 602, "IF THE AGENT REMAINS THE EMPLOYER SUFFICIENTLY
TO BE LIABLE TO MEMBERS OF THE CREW UNDER THE JONES ACT, WE THINK IT
CANNOT ESCAPE THE DUTIES OF AN OWNER PRO HAC VICE IN OTHER RESPECTS. 
THUS IT HAS THE DUTY TO FURNISH STEVEDORES WITH A SAFE PLACE TO WORK, A
DUTY WHICH IS ANALOGOUS TO THAT OWED BY A LANDOWNER TO A BUSINESS
VISITOR." 

THE COURT DOES NOT ESSAY TO ANSWER THAT ARGUMENT; NOR DOES IT ADDRESS
ITSELF TO THE FACTS WHICH I REVIEWED IN THE HUST CASE AND WHICH
ESTABLISH THAT THE BUSINESS OF MANAGING AND OPERATING THE VESSEL WAS
THE BUSINESS OF THE AGENT.  IT AVOIDS ANALYSIS OF THE ACTUAL
ARRANGEMENT BY VIEWING WITH ALARM THE CONSEQUENCES TO THE GOVERNMENT OF
SUCH A HOLDING AS APPLIED IN OTHER SITUATIONS.  BUT WE ARE HERE
CONCERNED WITH PRIVATE RIGHTS WHICH PRESS FOR RECOGNITION.  IT IS NO
ANSWER TO THE LEGAL ARGUMENT ON WHICH THOSE PRIVATE RIGHTS REST THAT
THE GOVERNMENT MIGHT BE INCONVENIENCED IF THEY WERE RECOGNIZED.  IT IS
PLAIN UNDER THIS OPERATING AGREEMENT THAT THE UNITED STATES IS MERELY
THE UNDERWRITER OF THE FINANCIAL RISKS OF THE VENTURE WHILE THE PRIVATE
OPERATOR PERFORMS THE MANAGERIAL FUNCTIONS IN THE USUAL WAY.  TO CALL
THAT GOVERNMENT OPERATION IS TO IGNORE THE REALITIES OF THE
RELATIONSHIP.  WHATEVER THE CONSEQUENCES IN OTHER SITUATIONS, IT IS
SHOCKING TO FIND PRIVATE OPERATORS GETTING IMMUNITY IN THIS MANNER FROM
THEIR TRADITIONAL LIABILITY FOR TORT CLAIMS. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I AGREE WITH RESPONDENTS' COUNSEL AND THE COURT THAT HUST V. MOORE
MCCORMACK LINES, 328 U.S. 707, DOES NOT RULE THIS CASE.  NEVERTHELESS I
CANNOT AGREE WITH THE COURT'S VIEW THAT EITHER NEW YORK LAW OR THE SO
CALLED "AGENCY CONTRACT," IDENTICAL WITH THAT INVOLVED IN THE HUST
CASE, IMMUNIZES RESPONDENTS FROM THE CONSEQUENCES OF THEIR NEGLIGENCE
CAUSING PETITIONER'S INJURY. 

THE HUST CASE INVOLVED THE RIGHTS OF SEAMEN, NOT OF LONGSHOREMEN. 
FN1  ALSO IT AROSE UNDER THE JONES ACT, 46 U.S.C. SEC. 688, WHEREAS
HERE LIABILITY IS GROUNDED UPON MARITIME TORT.  AND THE HUST DECISION
RESTED IN PART UPON THE EFFECTS OF THE SO-CALLED CLARIFICATION ACT OF
1943, 50 U.S.C. APP. (SUPP. V, 1946) SEC. 1291, WHICH HAS NO BEARING IN
THIS CASE, SINCE SEAMEN ARE NOT INVOLVED. 

THE HUST DECISION FLATLY REJECTED THE VIEW THAT THE EVENTS THERE IN
QUESTION  FN2  HAD BEEN EFFECTIVE TO STRIP THE SEAMAN OF HIS VARIOUS
PREEXISTING REMEDIES, REPLACING THEM WITH THE SINGLE REMEDY OF SUIT
PROVIDED BY THE SUITS IN ADMIRALTY ACT.  FN3  46 U.S.C. SEC. 742.  THE
NECESSARY RESULT WAS TO PRESERVE NOT MERELY THE SEAMAN'S RIGHTS UNDER
THE JONES ACT BUT ALSO HIS OTHER PREEXISTING ONES.  FN4  FOR IF THE
CONJUNCTION OF EVENTS PUT FORWARD IN THE HUST CASE AS HAVING MADE THE
SUITS IN ADMIRALTY ACT REMEDY THE ONLY ONE AVAILABLE TO THE SEAMAN WAS
THUS EFFECTIVE, THE JONES ACT REMEDY AS WELL AS OTHERS WAS THEREBY
EXCLUDED.  AND IF IT WAS NOT EXCLUDED, NEITHER WERE THOSE OTHERS LONG
POSSESSED BY SEAMEN.  FN5  THE HUST DECISION WAS THEREFORE NOT MERELY A
CONSTRUCTION OF THE JONES ACT.  THAT ACT WAS SIMPLY A SPECIFIC FULCRUM
FOR TURNING THE BROADER ISSUE PRESENTED. 

BUT SEAMEN'S RIGHTS ARE NOT LONGSHOREMEN'S RIGHTS AND THE EVENTS
COMBINING TO PRESENT THE QUESTION CONCERNING SEAMEN'S RIGHTS IN THE
HUST CASE WERE NOT CONCLUSIVE UPON LONGSHOREMEN'S RIGHTS.  THIS IS TRUE
ALTHOUGH IN SOME INSTANCES LONGSHOREMEN, THROUGH LEGISLATION OR BY
VIRTUE OF THEIR SUCCESSION TO SEAMEN OCCASIONED BY THE INDUSTRY'S
EVOLUTION IN SOME PHASES OF SHIP AND SHORE DUTY, HAVE BEEN HELD
ENTITLED TO SIMILAR PROTECTIONS.  SEAS SHIPPING CO. V. SIERACKI, 328
U.S. 85; ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52.  THE QUESTION
IN THIS CASE THEREFORE IS NOT ONE NECESSARILY GOVERNED BY THE SAME
CONSIDERATIONS AS APPLIED IN THE CASES OF SEAMEN COVERED BY THE HUST
DECISION. 

BUT, AS THE COURT RECOGNIZES, IT IS ONE OF MARITIME TORT, ALTHOUGH
LONGSHOREMEN RATHER THAN SEAMEN ARE INVOLVED; AND IS MOREOVER "SUABLE
IN THE STATE COURTS BY VIRTUE OF SEC. 9 OF THE JUDICIARY ACT OF 1789
WHICH SAVES 'TO SUITORS, IN ALL CASES, THE RIGHT OF A COMMON LAW
REMEDY, WHERE THE COMMON LAW IS COMPETENT TO GIVE IT.'" 
NOTWITHSTANDING THE CHARACTERIZATION AS MARITIME TORT, THE COURT SKIRTS
THE QUESTION WHETHER THE SOURCE OF THE RIGHT IS NEW YORK LAW OR, ON THE
CONTRARY, IS FEDERAL LAW FOR WHICH NEW YORK, PURSUANT TO SEC. 9, MERELY
SUPPLIES A MEANS FOR ENFORCEMENT.  FOR IN EITHER EVENT, IT SAYS, NEW
YORK'S "DETERMINATION IS DECISIVE THAT THERE IS NO REMEDY IN ITS COURTS
FOR SUCH A BUSINESS INVITEE AGAINST ONE WHO HAS NO CONTROL AND
POSSESSION OF PREMISES."    FROM THIS CONCLUSION I DISAGREE.  FOR, IF
THE LIABILITY HERE IS FOUNDED IN FEDERAL LAW, AS CREATING THE MARITIME
TORT, THEN NEW YORK LAW HAS NOTHING TO DO WITH CREATING OR NULLIFYING
THE SUBSTANTIVE RIGHT.  ITS SOLE FUNCTION IS TO SUPPLY THE REMEDY
COMMANDED BY SEC. 9 OF THE JUDICIARY ACT.  TESTA V. KATT, 330 U.S.
386.  AND IN MY JUDGMENT THE LIABILITY HERE, SINCE IT ARISES FROM A
MARITIME TORT, IS A CREATURE OF FEDERAL LAW IN ITS ENTIRETY, NOT OF
STATE LAW.  FN6  I THEREFORE DO NOT AGREE THAT ANY SUBSTANTIVE ISSUES
IN THE CASE "EXCLUSIVELY CONCERN NEW YORK LAW" OR THAT IN ANY RESPECT
THAT STATE'S COURT OF APPEALS "HAD THE FINAL SAY IN HOLDING THAT ONE IN
THE RELATION OF THE RESPONDENTS TO THE PETITIONER IS NOT LIABLE FOR THE
TORT OF WHICH THE LATTER COMPLAINS."  I DO NOT UNDERSTAND HOW THE COURT
CAN LEAVE OPEN THE QUESTION WHETHER NEW YORK LAW HAS A HAND IN CREATING
THE RIGHT SUED ON OR ONE ONLY IN SUPPLYING A FORUM AND REMEDY, AND AT
THE SAME TIME CAN RELY ON NEW YORK LAW AS HAVING ANY PART IN CREATING
THE RIGHT OR NULLIFYING IT, AS IT SEEMS TO DO.  THE RESULT DOES NOT
SIMPLY ENTANGLE STATE LAW WITH FEDERAL LAW IN THE SUBSTANTIVE PHASE OF
THE CASE.  IT ENTANGLES HYPOTHETICALLY APPLICABLE STATE LAW IN ONE
PHASE WITH FEDERAL LAW IN ANOTHER. 

REGARDING THE CASE, AS I DO, AS BEING CONTROLLED IN ITS SUBSTANTIVE
ASPECT ALTOGETHER BY FEDERAL LAW, I DO NOT THINK THAT LAW REQUIRES OR
SHOULD PERMIT THE RESULT THE COURT REACHES.  REGARDLESS OF WHETHER THE
SO-CALLED "AGENCY" CONTRACT MAKES THE OPERATING COMPANY AN "AGENT," AN
"OWNER PRO HAC VICE," OR TECHNICALLY SOMETHING ELSE IN RELATION TO THE
UNITED STATES, THE FEDERAL MARITIME LAW IN MY OPINION WELL MIGHT HOLD
RESPONSIBLE TO AN INJURED LONGSHOREMAN ONE WHO HAS KNOWLEDGE THAT SUCH
PERSONS WILL COME ABOARD AND WHO UNDERTAKES TO KEEP THE VESSEL AND ITS
EQUIPMENT IN SAFE CONDITION FOR THEIR USE.  FN7  MORE ESPECIALLY SHOULD
SUCH A RULE APPLY WHEN THE PERSON SO UNDERTAKING IS THE ONLY ONE
CONSTANTLY ON BOARD TO OBSERVE THE CREATION OF HAZARDOUS RISKS IN THE
VESSLE'S DAILY ROUTINES AND, IN ADDITION, HAS SUCH A DEGREE OF CONTROL
OVER THEIR CREATION AS THE "AGENT" DID HERE. 

BUT, IN ANY EVENT, THE SAME RESULT SHOULD BE REACHED ON THE BASIS OF
CONSTRUCTION OF THE CONTRACT.  WHETHER THIS IS PUT UPON THE GROUND
STATED IN THE OPINION OF MR. JUSTICE DOUGLAS, THAT THE "AGENT" BECAME
OWNER PRO HAC VICE, OR IN THE VIEW OF THE CONTRACT TAKEN IN THE HUST
CASE, WITH REFERENCE TO APPLICATION OF THE JONES ACT, IS LARGELY
IMMATERIAL, PERHAPS ONLY A MATTER OF WORDS.  FN8 

THAT VIEW, INCORPORATING THE RULE OF THE HEARST CASE,  FN9  WE HAVE
ONLY RECENTLY EXTENDED TO APPLY IN CASES OF COVERAGE OF THE SOCIAL
SECURITY ACT AND THE FAIR LABOR STANDARDS ACT.  UNITED STATES V. SILK,
331 U.S. 704; HARRISON V. GREYVAN LINES, ID.; RUTHERFORD FOOD CORP. V.
MCCOMB, 331 U.S. 722.  WHILE THE LIABILITY HERE IS NOT LEGISLATIVE IN
ORIGIN, NEVERTHELESS AS IN THE HUST CASE, APPLICATION OF THE COMMON-LAW
"CONTROL" TEST TO DEFEAT THE LONGSHOREMAN'S REMEDY UNDER THE STATE
PROCEDURE, AS PROVIDED BY SEC. 9 OF THE JUDICIARY ACT OF 1789, CANNOT
"BE JUSTIFIED IN THIS TEMPORARY SITUATION UNLESS BY INVERSION OF THAT
WISDOM WHICH TEACHES THAT 'THE LETTER KILLETH, BUT THE SPIRIT GIVETH
LIFE.'"  328 U.S. AT 725. 

FINALLY, IN MY OPINION, THE TERMS OF THE AGREEMENT IN ITS PROVISIONS
FOR INDEMNITY CONFIRM THE CONCLUSION THAT LIABILITY OF THE "AGENT" IN
SUCH A CASE AS THIS WAS CONTEMPLATED.  NOT ONLY IS THERE BROAD
INDEMNITY "FOR ALL EXPENDITURES OF EVERY KIND MADE BY IT IN PERFORMING,
PROCURING OR SUPPLYING THE SERVICES, FACILITIES, STORES, SUPPLIES OR
EQUIPMENT AS REQUIRED HEREUNDER," WITH SPECIFIED EXCEPTIONS NOT
COVERING SUCH LIABILITIES AS ARE NOW IN QUESTION.  THE INDEMNITY ALSO
EXPRESSLY PROVIDED: 

"TO THE EXTENT NOT RECOVERED FROM INSURANCE, THE UNITED STATES SHALL
ALSO REIMBURSE THE GENERAL AGENT FOR ALL CREW EXPENDITURES (ACCRUING
DURING THE TERM HEREOF) IN CONNECTION WITH THE VESSELS HEREUNDER,
INCLUDING, WITHOUT LIMITATION, ALL DISBURSEMENTS FOR OR ON ACCOUNT OF
WAGES, EXTRA COMPENSATION, OVERTIME, BONUSES, PENALTIES, SUBSISTENCE,
REPATRIATION, TRAVEL EXPENSE, LOSS OR PERSONAL EFFECTS, MAINTENANCE,
CURE, VACATION ALLOWANCES, DAMAGES OR COMPENSATION FOR DEATH OR
PERSONAL INJURY OR ILLNESS, AND INSURANCE PREMIUMS, REQUIRED TO BE PAID
BY LAW, CUSTOM, OR BY THE TERMS OF THE SHIP'S ARTICLES OR LABOR
AGREEMENTS  ..." 

AS WELL AS FOR PAYMENTS MADE TO PENSION FUNDS AND FOR SOCIAL SECURITY
TAXES.  THIS CLAUSE SPECIFICALLY CONTEMPLATED THAT THE "AGENT" SHOULD
BE RESPONSIBLE FOR PAYING CLAIMS NOT ONLY FOR MAINTENANCE AND CURE BUT
ALSO FOR "DAMAGES OR COMPENSATION FOR DEATH OR PERSONAL INJURY OR
ILLNESS," AND SHOULD BE INDEMNIFIED FOR SUCH PAYMENT.  A NARROW
CONSTRUCTION, OF COURSE, WOULD LIMIT THE PROVISIONS FOR PAYMENT AND
INDEMNITY TO PAYMENTS MADE WITHOUT RESORT TO SUIT.  ON THE OTHER HAND,
EVEN A LITERAL INTERPRETATION WOULD COVER PAYMENTS MADE BY THE "AGENT"
UPON JUDGMENTS RECOVERED AGAINST IT ON CLAIMS OF THE CHARACTER
SPECIFIED.  I KNOW OF NO GOOD REASON WHY THE NARROW VIEW SHOULD BE
ACCEPTED OR WHY THE GOVERNMENT BY ITS CONTRACT SHOULD DESIRE TO UPROOT
SEAMEN AND OTHERS, INCLUDING LONGSHOREMEN INSOFAR AS THEY HAVE ACQUIRED
SEAMEN'S RIGHTS ABOARD SHIP, FROM THEIR NORMALLY APPLICABLE REMEDIES,
IN THE ABSENCE OF EITHER EXPLICIT STATUTORY COMMAND OR EXPRESS
CONTRACTUAL PROVISION TO THAT EFFECT.  MOREOVER, IN VIEW OF THE SCOPE
OF THE INDEMNITY PROVIDED, I SEE NO POSSIBLE HARM THAT COULD BE
INFLICTED ON THE "AGENT" FROM INTERPRETING THE CONTRACT SO AS TO ALLOW
THE NORMALLY APPLICABLE REMEDIES TO APPLY. 

ACCORDINGLY, I WOULD REVERSE THE JUDGMENT OF THE COURT OF APPEALS. 

FN1  CONGRESS AND THE PRESIDENT, IN THE LEGISLATIVE AND EXECUTIVE
ACTION TAKEN IN CONNECTION WITH THE MERCHANT MARINE AND PERTINENT IN
THE HUST CASE, WERE CONCERNED WITH THE RIGHTS OF SEAMEN, NOT PRIMARILY
OR PERHAPS EVEN INCIDENTALLY WITH THOSE OF LONGSHOREMEN. 

FN2  IN THE HUST CASE, AFTER NOTING THE DISRUPTIVE CONSEQUENCES FOR
SEAMEN'S LONG-SETTLED RIGHTS FLOWING FROM THE VIEW THAT THEY HAD BEEN
REDUCED FOR ASSERTION TO THE SINGLE REMEDY PROVIDED BY THE SUITS IN
ADMIRALTY ACT, WE SAID:  "WE MAY ASSUME THAT CONGRESS COULD AUTHORIZE
SO VAST A DISTURBANCE TO SETTLED RIGHTS BY CLEAR AND UNEQUIVOCAL
COMMAND.  IT IS NOT PERMISSIBLE TO FIND ONE BY IMPLICATION.  BRADY V.
ROOSEVELT CO., SUPRA (317 U.S. 575), AT 580.  HERE THE DISRUPTION, IF
IT HAS OCCURRED, HAS DONE SO ONLY AS AN IMPLIED RESULT OF THE
CONJUNCTION OF THE SUITS IN ADMIRALTY ACT'S PROVISIONS WITH THE
GOVERNMENT'S EMERGENCY ACTION IN TAKING OVER THE SHIPPING INDUSTRY FOR
WAR PURPOSES."  328 U.S. AT 722.  NO SUCH INTENT, WE SAID, COULD BE
FOUND IN ANY ACTION OF CONGRESS, OR OF THAT BODY AND THE PRESIDENT, IN
EXERCISING THEIR POWERS TO BRING THE INDUSTRY UNDER GOVERNMENTAL
CONTROL; OR IN THE SUITS IN ADMIRALTY ACT OR THE JONES ACT AS APPLIED
TO THE RELATION CREATED BY THE "AGENCY" CONTRACT. 

FN3  SEE NOTE 2. 

FN4  CONFIRMATION OF THE CONCLUSIONS SUMMARIZED IN NOTE 2, SUPRA, WAS
FOUND IN THE LEGISLATIVE HISTORY OF THE CLARIFICATION ACT OF 1943, 50
U.S.C. APP. (SUPP. V, 1946) SEC. 1291, AND PARTICULARLY IN THE
PROVISION FOR ELECTION OF REMEDIES GIVEN BY SEC. 1, AS TO INJURIES
ACCRUING ON OR AFTER OCTOBER 1, 1941, AND BEFORE MARCH 24, 1943, THE
ACT'S EFFECTIVE DATE.  OPINION WAS EXPRESSLY RESERVED AS TO THE EFFECT
OF THAT ACT CONCERNING INJURIES OCCURRING AFTER ITS EFFECTIVE DATE. 
328 U.S. AT 727. 

FN5  IN THE HUST CASE WE SAID OF THE ARGUMENT THAT THE SUITS IN
ADMIRALTY ACT REMEDY HAD BECOME EXCLUSIVELY AVAILABLE FOR ASSERTING
SEAMEN'S RIGHTS THAT, WITH SPECIFIED EXCEPTIONS, "THE VARIOUS RIGHTS OF
SEAMEN, ENFORCEABLE BY VARIOUS PROCEEDINGS IN ADMIRALTY AND AT LAW, IN
STATE AND FEDERAL COURTS, ARE SWEPT INTO ONE HOPPER, THE SUIT AGAINST
THE GOVERNMENT  ...  "  328 U.S. AT 720. 

FN6  28 U.S.C. SEC. 371, DERIVED FROM SEC. 9 OF THE JUDICIARY ACT OF
1789, IS A RECOGNITION BY CONGRESS THAT THE STATES MAY EXERCISE
WHATEVER JURISDICTION THE COMMON LAW HAD CONCURRENTLY WITH ADMIRALTY. 
SEE WARING V. CLARKE, 5 HOW.  441, 460-461.  HOWEVER, SINCE "IT IS NOT
A REMEDY IN THE COMMON-LAW COURTS WHICH IS SAVED, BUT A COMMON-LAW
REMEDY," THE MOSES TAYLOR, 4 WALL.  411, 431, IT HAS BEEN HELD THAT
WHERE SUIT IS BROUGHT UNDER THE SAVING CLAUSE THE RIGHT TO BE ENFORCED
IS THAT "RECOGNIZED BY THE LAW OF THE SEA."  CHELENTIS V. LUCKENBACH
S.S. CO., 247 U.S. 372, 384.  "THE GENERAL RULES OF THE MARITIME LAW
APPLY WHETHER THE PROCEEDING BE INSTITUTED IN AN ADMIRALTY OR COMMON
LAW COURT."  CARLISLE PACKING CO. V. SANDANGER, 259 U.S. 255, 259.  THE
COMMENTATORS RECOGNIZE THIS TO BE THE RULE NOW, 1 BENEDICT ON ADMIRALTY
(6TH ED.)  53-55; STUMBERG, MARITIME CASES IN COMMON-LAW COURTS (1925)
3 TEX. L. REV. 246; MOLE AND WILSON, A STUDY OF COMPARATIVE NEGLIGENCE
(1932) 17 CORN.  L.Q. 333, 353-355, THOUGH THE MATTER SEEMS NOT TO HAVE
BEEN DECIDED PRIOR TO THE CHELENTIS CASE.  CF. THE HAMILTON, 207 U.S.
398, 404. 

FN7 "ONE WHO DOES AN ACT OR CARRIES ON AN ACTIVITY UPON LAND ON
BEHALF OF THE POSSESSOR THEREOF, IS SUBJECT TO THE SAME LIABILITY, AND
ENJOYS THE SAME IMMUNITY FROM LIABILITY, FOR BODILY HARM CAUSED THEREBY
TO OTHERS WITHIN AND OUTSIDE THE LAND AS THOUGH HE WERE THE POSSESSOR
OF THE LAND."  RESTATEMENT, TORTS, SEC. 383. 

"AN AGENT WHO HAS THE CUSTODY OF LAND OR CHATTELS AND WHO SHOULD
REALIZE THAT THERE IS AN UNDUE RISK THAT THEIR CONDITION WILL CAUSE
HARM TO THE PERSON, LAND, OR CHATTELS OF OTHERS IS SUBJECT TO LIABILITY
FOR SUCH HARM CAUSED, DURING THE CONTINUANCE OF HIS CUSTODY, BY HIS
FAILURE TO USE CARE TO TAKE SUCH REASONABLE PRECAUTIONS AS HE IS
AUTHORIZED TO TAKE."  RESTATEMENT, AGENCY, SEC. 355. 

FN8  IN THAT CASE, ASSUMING THAT THE AGREEMENT MADE HUST, THE INJURED
SEAMAN, AN EMPLOYEE OF THE UNITED STATES FOR PURPOSES OF ULTIMATE
CONTROL, IN SPITE OF THE METICULOUS CHARACTER OF THE DIFFERENCES
BETWEEN IT AND THE MARITIME COMMISSION'S STANDARD CONTRACT, WE SAID:
"BUT IT DOES NOT FOLLOW FROM THE FACT THAT HUST WAS TECHNICALLY THE
GOVERNMENT'S EMPLOYEE THAT HE LOST ALL REMEDIES AGAINST THE OPERATING
'AGENT' FOR SUCH INJURIES AS HE INCURRED.  THIS CASE, LIKE NATIONAL
LABOR RELATIONS BOARD V. HEARST PUBLICATIONS, 322 U.S. 111, INVOLVES
SOMETHING MORE THAN MERE APPLICATION TO THE FACTS OF THE COMMON-LAW
TEST FOR ASCERTAINING THE VICARIOUS RESPONSIBILITIES OF A PRIVATE
EMPLOYER FOR TORTIOUS CONDUCT OF AN EMPLOYEE."  328 U.S. AT 724. 

FN9  NATIONAL LABOR RELATIONS BOARD V. HEARST PUBLICATIONS, 322 U.S.
111. 
..END :









ATLANTIC COAST LINE V. PHILLIPS, 332 U.S. 168 


NO. 385.  ARGUED APRIL 9, 1947.  - DECIDED JUNE 23, 1947.  - 200 GA.
856, 38 S.E.2D 774, AFFIRMED. 


1.  A CHARTER GRANTED BY THE STATE OF GEORGIA TO A RAILROAD COMPANY IN
1833 PROVIDED THAT "THE STOCK OF THE SAID COMPANY AND ITS BRANCHES
SHALL BE EXEMPT FROM TAXATION FOR AND DURING THE TERM OF SEVEN YEARS
FROM AND AFTER THE COMPLETION OF THE SAID RAIL ROADS OR ANY ONE OF
THEM:  AND AFTER THAT, SHALL BE SUBJECT TO A TAX NOT EXCEEDING ONE HALF
PER CENT. PER ANNUM ON THE NET PROCEEDS OF THEIR INVESTMENTS."  IN 1937
THE STATE IMPOSED A TAX OF 5 1/2 PER CENT ON THE NET INCOME OF ALL
DOMESTIC AND FOREIGN CORPORATIONS AND IN 1941 ASSESSED DEFICIENCIES FOR
SUCH TAXES AGAINST A LESSEE OF THE RAILROAD.  HELD, FOLLOWING A
DECISION OF THE HIGHEST COURT OF THE STATE, THAT THE 1833 EXEMPTION DID
NOT APPLY TO TAXES ON "INCOME," IMPOSED BY A STATUTE IN 1937, AND,
THEREFORE, THE TAX DID NOT IMPAIR THE OBLIGATION OF THE RAILROAD'S
CHARTER CONTRARY TO ART. I, SEC. 10, OF THE FEDERAL CONSTITUTION.  PP.
169-174. 

2.  EARLIER DECISIONS OF THIS COURT CONSTRUING THE SAME TAX EXEMPTION
PROVISION, IN CASES INVOLVING PROPERTY TAXES AND NOT A CONVENTIONAL
INCOME TAX, ARE NOT CONTROLLING HERE.  PP. 173-174. 

ATLANTIC COAST LINE RAILROAD CO. V. PHILLIPS, STATE REVENUE
COMMISSIONER. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

THE RAILROAD COMPANY APPEALED TO THE STATE COURTS FROM A TAX
ASSESSMENT UNDER A STATE STATUTE CHALLENGED AS VIOLATIVE OF THE
CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION.  THE TRIAL COURT GAVE
JUDGMENT FOR THE RAILROAD.  THE STATE SUPREME COURT REVERSED.  200 GA.
856, 38 S.E.2D 774.  ON APPEAL TO THIS COURT, AFFIRMED, P. 174. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS WAS A PROCEEDING IN THE COURTS OF GEORGIA TO DECLARE INVALID AN
ASSESSMENT BY THE STATE REVENUE COMMISSIONER AGAINST THE ATLANTIC COAST
LINE RAILROAD COMPANY ON THE GROUND THAT THE TAX AS APPLIED TO THE
APPELLANT IMPAIRS THE OBLIGATION OF CONTRACTS.  UNITED STATES
CONSTITUTION, ART. I, SEC. 10. 

TO ENCOURAGE RAILROAD DEVELOPMENT, THE STATE OF GEORGIA IN 1833
CHARTERED THE GEORGIA RAILROAD COMPANY (WHICH LATER BECAME THE GEORGIA
RAILROAD AND BANKING COMPANY), AND GAVE THE RAILROAD CERTAIN IMMUNITY
FROM TAXATION.  GEORGIA'S INCREASING NEED OF TAPPING NEW SOURCES OF
REVENUE HAS NOT UNNATURALLY BROUGHT TO THE COURTS THE SCOPE OF THIS
IMMUNITY.  ITS CONSTRUCTION IN RELATION TO THE CLAIM OF GEORGIA, THAT
DESPITE THE CHARTER OF 1833 THE APPELLANT IS SUBJECT TO ITS CORPORATE
INCOME TAX, IS THE SOLE ISSUE BEFORE US. 

THE CASE IS THIS.  GEORGIA, IN 1937, IMPOSED A TAX OF 5 1/2 PER CENT.
ON THE NET INCOME OF ALL DOMESTIC AND FOREIGN CORPORATIONS.  ACTS 1931,
EXTRA.  SESS.  PP. 24, 26, AMENDED, ACTS 1937, PP. 109, 117; GA. ANN.
CODE SEC. 92-3102.  NO CLAIM UNDER THIS CORPORATE INCOME TAX WAS MADE
AGAINST THE ATLANTIC COAST LINE, ONE OF THE LESSEES OF THE GEORGIA
RAILROAD, UNTIL 1941.  FOR THE CALENDAR YEARS 1941, 1942, 1943, THE
STATE REVENUE COMMISSIONER ASSESSED AGAINST THE APPELLANT DEFICIENCY
TAXES ON THE BASIS OF ITS NET INCOME FROM THE ROAD, COMPUTED AT THE 5
1/2 PER CENT. RATE PAID BY ALL CORPORATIONS.  IT IS THIS ASSESSMENT
THAT IS CONTESTED.  THE APPELLANT RESISTED ON THE GROUND THAT THE
ATTEMPT OF GEORGIA TO IMPOSE THIS TAX IS IN DISREGARD OF THE OBLIGATION
ASSUMED BY GEORGIA THROUGH SEC. 15 OF THE CHARTER OF 1833.  THE SUPREME
COURT OF GEORGIA SUSTAINED THE ASSESSMENT, HOLDING THAT THE TAX
EXEMPTION OF THE CHARTER RELATED MERELY TO THE LIMITS TO WHICH A TAX ON
THE RAILROAD PROPERTY COULD BE LEVIED, SUCH A PROPERTY TAX TO BE
MEASURED SO AS NOT TO EXCEED ONE-HALF PER CENT. OF THE NET EARNING
POWER OF THE PROPERTIES.  200 GA. 856, 38 S.E.2D 774.  THE EXEMPTION,
SO THE STATE SUPREME COURT FOUND, WAS NOT CONCERNED WITH WHAT WE NOW
KNOW AS A CORPORATE NET INCOME TAX AND THEREFORE DID NOT BARGAIN AWAY
THE POWER OF THE LEGISLATURE TO IMPOSE SUCH A TAX. 

A CLAIM THAT A STATE STATUTE IMPAIRS THE OBLIGATION OF CONTRACT IS AN
APPEAL TO THE UNITED STATES CONSTITUTION, AND CANNOT BE FORECLOSED BY A
STATE COURT'S DETERMINATION WHETHER THERE WAS A CONTRACT OR WHAT WERE
ITS OBLIGATIONS.  BUT WHILE IT IS TRUE THAT WE ARE NOT BOUND BY THE
CONSTRUCTION OF LOCAL STATUTES BY THE LOCAL COURTS IN DECIDING THE
CONSTITUTIONAL QUESTION, "YET WHEN WE ARE DEALING WITH A MATTER OF
LOCAL POLICY, LIKE A SYSTEM OF TAXATION, WE SHOULD BE SLOW TO DEPART
FROM THEIR JUDGMENT, IF THERE WAS NO REAL OPPRESSION OR MANIFEST WRONG
IN THE RESULT."  CLYDE V. GILCHRIST, 262 U.S. 94, 97. 

THE GEORGIA SUPREME COURT HAD TO CONSTRUE THE FOLLOWING GEORGIA
LANGUAGE: 

"THE STOCK OF THE SAID COMPANY AND ITS BRANCHES SHALL BE EXEMPT FROM
TAXATION FOR AND DURING THE TERM OF SEVEN YEARS FROM AND AFTER THE
COMPLETION OF THE SAID RAIL ROADS OR ANY ONE OF THEM:  AND AFTER THAT,
SHALL BE SUBJECT TO A TAX NOT EXCEEDING ONE HALF PER CENT. PER ANNUM ON
THE NET PROCEEDS OF THEIR INVESTMENTS."  SEC. 15, ACT OF DECEMBER 21,
1833, ACTS 1833, PP. 256, 263-64. 

IT IS NOT FOR US TO READ SUCH A LOCAL LAW WITH INDEPENDENT BUT
INNOCENT EYES, HEEDLESS OF A CONSTRUCTION PLACED UPON IT BY THE LOCAL
COURT.  SUCH A TAX PROVISION IS NOT A COLLOCATION OF ABSTRACT WORDS. 
IN SEEKING THE MEANING CONVEYED BY A LOCAL ENACTMENT IT MUST BE VIEWED
AS PART OF THE WHOLE TEXTURE OF LOCAL LAWS AND OF THE ECONOMY TO WHICH
THEY APPLY.  THE LANGUAGE DRAWS TO ITSELF PRESUPPOSITIONS NOT ALWAYS
ARTICULATED, AND EVEN WHAT IS EXPRESSED IN WORDS MAY CARRY MEANING TO
INSIDERS WHICH IS NOT WITHIN THE SURE DISCERNMENT OF THOSE VIEWING THE
LAW FROM A DISTANCE.  AND SO WE ARE NOT PREPARED TO SAY THAT THE
SUPREME COURT OF GEORGIA WAS "MANIFESTLY WRONG," HALE V. STATE BOARD,
302 U.S. 95, 101, IN CONSTRUING THE EXEMPTION AS LIMITING MERELY THE
RIGHT TO IMPOSE PROPERTY TAXES.  OUR SEARCH IS FOR SOMETHING OTHER THAN
THE MEANING WHICH THE TAX SPECIALISTS MAY TODAY FIND IN THE WORDS.  "IT
IS FOR THE MEANING THAT AT A PARTICULAR TIME AND PLACE AND IN THE
SETTING OF A PARTICULAR STATUTE MIGHT REASONABLY HAVE ACCEPTANCE BY MEN
OF COMMON UNDERSTANDING."  HALE V. STATE BOARD, SUPRA.  WE SHOULD
REJECT THE CONSTRUCTION WHICH THE GEORGIA SUPREME COURT HAS PLACED UPON
WHAT THE GEORGIA LEGISLATURE OF 1833 WROTE ONLY IF WE CAN BE CONFIDENT
THAT THE GEORGIA LEGISLATURE OF 1833, BY THE WORDS IT USED, COULD NOT
HAVE EXPRESSED THE MEANING THUS ATTRIBUTED TO IT. A FAIR REGARD FOR THE
PLACE OF INCOME TAXES, AS NOW COMMONLY CONCEIVED, IN THE THOUGHT AND
PRACTICE CONCERNING FISCAL MATTERS PREVALENT IN 1833 PRECLUDES THE
REJECTION OF THE INTERPRETATION BY THE GEORGIA COURT OF THE EXEMPTION
OF 1833. 

THERE WERE, TO BE SURE, SO-CALLED "FACULTY TAXES" IN COLONIAL TIMES
WHICH HAD SOME OF THE CHARACTERISTICS OF OUR PRESENT INCOME TAXES IN
THAT ABILITY TO PAY WAS AN INGREDIENT.  BUT EVEN THESE TAXES, HARDLY
INCOME TAXES AS WE NOW KNOW THEM, HAD BY 1833 GENERALLY CEASED TO BE,
AND PERHAPS EVEN TO BE REMEMBERED.  SEE, E.G., SELIGMAN, THE INCOME TAX
(2D ED.)  PART II, C. I, PP. 367 ET SEQ.; COMPARE HYLTON V. UNITED
STATES, 3 DALL.  171.  IN GEORGIA, THE ONLY IMPOSITION EVEN REMOTELY
CLASSIFIABLE AS AN INCOME TAX BECAUSE PRESUMABLY BASED ON ABILITY TO
PAY IS THAT ILLUSTRATED BY A LEVY OF "THE SUM OF FOUR DOLLARS ON ALL
PROFESSORS OF LAW AND PHYSIC, AND THE SUM OF FIFTY DOLLARS ON ALL
BILLIARD TABLES  ...  "  LAW NO. 590, 1797, WATKINS DIGEST OF THE LAWS
OF GEORGIA, 1755-1799, PP. 646, 648.  NOT UNTIL THE CIVIL WAR DID
GEORGIA, LIKE THE FEDERAL GOVERNMENT, RESORT TO WHAT WAS INDISPUTABLY
AN INCOME TAX.  ON THE OTHER HAND, TO READ AS THE GEORGIA SUPREME COURT
READ THE EXEMPTION PROVISION OF THE CHARTER OF 1833, AS DEALING WITH A
TAX ON PROPERTY, FAIRLY REFLECTS A PRACTICE, NOT UNKNOWN IN THE EARLIER
DAYS, OF ASSESSING PROPERTY FOR TAX PURPOSES NOT BY ITS EXCHANGE VALUE
BUT BY ITS EARNING POWER.  SEE, E.G., SELIGMAN, THE INCOME TAX (2D
ED.)  PP. 382-83; REPORT OF SPECIAL COMMISSION ON TAXATION, CONNECTICUT
1887, P. 9, WITH COMMENTS THEREON IN KENNAN, INCOME TAXATION, P. 207. 

IN THIS SETTING, IT WOULD SAVOR OF DOGMATISM TO INFUSE INTO THE 1833
EXEMPTION THE INCOME TAX ATMOSPHERE OF OUR OWN DAY.  IT DOES NOT SEEM
INADMISSIBLE FOR THE SUPREME COURT OF GEORGIA TO HAVE FOUND THAT WHAT
THE GEORGIA LEGISLATURE OF 1833 SOUGHT WAS TO MEASURE THE COMMONPLACE
PROPERTY TAX OF THE TIME NOT BY A FLAT SUM, OR ON THE BASIS OF A VALUE
ABSTRACTLY ASCERTAINED, BUT IN ACCORDANCE WITH THE FRUITS OF THE
PROPERTY, MODESTLY LIMITED. 

TO SANCTION SUCH A RESTRICTED READING OF THE EXEMPTION IS TO RESPECT
A RULE DEEPLY ROOTED IN HISTORY AND POLICY, ACCORDING TO WHICH
CONTRACTS OF TAX EXEMPTION ARE TO BE READ "NARROWLY AND STRICTLY." 
HALE V. STATE BOARD, SUPRA, AT 109.  TO RECOGNIZE THAT MORE THAN A
HUNDRED YEARS AGO THE GEORGIA LEGISLATURE DID NOT FOREVER BARGAIN AWAY
THE WHOLLY UNTAPPED DOMAIN OF INCOME TAXATION IS TO RECOGNIZE THE
GOVERNING CONSIDERATION THAT "THE POWER OF TAXATION IS NEVER TO BE
REGARDED AS SURRENDERED OR BARGAINED AWAY IF THERE IS ROOM FOR RATIONAL
DOUBT AS TO THE PURPOSE."  THIS WAS SAID WHEN AN EARLIER CONTROVERSY
AFFECTING THIS CHARTER WAS HERE.  WRIGHT V. GEORGIA RAILROAD AND
BANKING CO., 216 U.S. 420, 438.  AS TO THE ASTUTENESS OF TAXPAYERS IN
ORDERING THEIR AFFAIRS SO AS TO MINIMIZE TAXES, WE HAVE SAID THAT "THE
VERY MEANING OF A LINE IN THE LAW IS THAT YOU INTENTIONALLY MAY GO AS
CLOSE TO IT AS YOU CAN IF YOU DO NOT PASS IT."  SUPERIOR OIL CO. V.
MISSISSIPPI, 280 U.S. 390, 395-96.  THIS IS SO BECAUSE "NOBODY OWES ANY
PUBLIC DUTY TO PAY MORE THAN THE LAW DEMANDS:  TAXES ARE ENFORCED
EXACTIONS, NOT VOLUNTARY CONTRIBUTIONS."  LEARNED HAND, C.J.,
DISSENTING IN COMMISSIONER V. NEWMAN, 159 F.2D 848, 851.  CONVERSELY,
THE STATE, INSOFAR AS IT MAY LIMIT ITS BASIC POWER TO TAX TO ENABLE
GOVERNMENT TO GO ON, CAN SAIL AS CLOSELY AS ASTUTENESS PERMITS TO THE
LINE OF AN IMMUNITY FROM SUCH EXACTION.  THIS IS AN OLD CANON OF
JUDICIAL CONSTRUCTION.  THE POLICY ON WHICH IT RESTS ANTEDATES THE
CHARTER BEFORE US, AND IT FORMS THE SETTING IN WHICH THE EXEMPTION IS
TO BE READ.  SEE, E.G., CHARLES RIVER BRIDGE V. WARREN BRIDGE, 7 PICK. 
(MASS.  1829) 344, AFFIRMED, 11 PET. 420(1837).  THIS REQUIREMENT IN
THE CONSTRUCTION OF LEGISLATIVE GRANTS, ESPECIALLY TAX EXEMPTIONS, IS
MERELY AN ASPECT OF RESPECTING LEGISLATIVE PURPOSE.  A LEGISLATURE IS
NOT TO BE PRESUMED TO HAVE RELINQUISHED ITS POWER OF TAXATION BEYOND
THE NARROWEST RATIONAL READING OF AN EXEMPTION.  THE POTENTIAL NEED OF
ALL GOVERNMENTAL POWERS, AND FAIRNESS IN THE DISTRIBUTION OF BURDENS OR
IN THE ENJOYMENT OF PRIVILEGES, PRECLUDE SUCH AN ASSUMPTION. 

WE HAVE CAREFULLY CONSIDERED THE EARLIER CASES IN WHICH THE SCOPE OF
THIS EXEMPTION CAME BEFORE THIS COURT.  CENTRAL RAILROAD AND BANKING
CO. V. GEORGIA, 92 U.S. 665; WRIGHT V. GEORGIA RAILROAD AND BANKING
CO., SUPRA; WRIGHT V. CENTRAL OF GEORGIA R. CO., 236 U.S. 674; WRIGHT
V. LOUISVILLE AND NASHVILLE R. CO., 236 U.S. 687; CENTRAL OF GEORGIA R.
CO. V. WRIGHT, 248 U.S. 525; CENTRAL OF GEORGIA R. CO. V. WRIGHT, 250
U.S. 519.  IT IS NEEDLESS TO REHEARSE THE ISSUES THEY INVOLVED. 
SUFFICE IT TO SAY THAT THE PRIOR TAXES FOUND TO HAVE BEEN BARRED BY THE
EXEMPTION WERE ALL TAXES ON THE RAILROAD PROPERTY.  NOW FOR THE FIRST
TIME WE ARE CALLED UPON TO EXAMINE A CANDID, CONVENTIONAL INCOME TAX. 
PASSING REFERENCE TO "INCOME" WHEN THE COURT'S MIND WAS NOT FOCUSED
UPON THE VALIDITY OF AN INCOME TAX AS SUCH MUST NOT BE TORN FROM THE
CONTEXT OF DISCUSSION OF PROPERTY TAXES.  IN ANY EVENT, THESE PHRASES
LEAVE UNTOUCHED OUR DUTY TO RESPECT THE JUDGMENT OF A STATE COURT AS TO
THE FAIR INTENDMENT OF AN EXEMPTION.  JUDGMENT AFFIRMED. 

MR. JUSTICE RUTLEDGE, AGREEING WITH THE COURT'S CONCLUSIONS
CONCERNING THE MEANING OF THE GEORGIA STATUTE, CONCURS IN THE RESULT. 
..END :








SUNAL V. LARGE, 332 U.S. 174 


ARGUED APRIL 1, 1947.  - DECIDED JUNE 23, 1947.  - 157 F.2D 165,
AFFIRMED.  - 157 F.2D 811, REVERSED. 


1.  IN A CRIMINAL PROSECUTION UNDER THE SELECTIVE TRAINING AND SERVICE
ACT OF 1940 FOR FAILURE TO SUBMIT TO INDUCTION INTO THE ARMY, A FEDERAL
DISTRICT COURT IMPROPERLY DENIED TO A DEFENDANT WHO HAD FULLY EXHAUSTED
HIS ADMINISTRATIVE REMEDY THE RIGHT TO DEFEND ON THE GROUND OF THE
INVALIDITY OF HIS CLASSIFICATION BY THE LOCAL BOARD AS AVAILABLE FOR
MILITARY SERVICE RATHER THAN AS AN EXEMPT MINISTER OF RELIGION.  HE WAS
CONVICTED AND SENTENCED TO IMPRISONMENT BUT TOOK NO APPEAL.  HELD:  HE
COULD NOT LATER OBTAIN A REVIEW OF HIS CONVICTION BY A HABEAS CORPUS
PROCEEDING.  PP. 175-184. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, THE FAILURE OF THE DEFENDANT
TO TAKE AN APPEAL FROM THE JUDGMENT OF CONVICTION CAN NOT BE JUSTIFIED
ON THE GROUND THAT AN APPEAL WAS DEEMED FUTILE BECAUSE OF THE STATE OF
THE LAW AT THAT TIME - I.E., AFTER THE DECISION OF THIS COURT IN FALBO
V. UNITED STATES, 320 U.S. 549, AND BEFORE THE DECISION IN ESTEP V.
UNITED STATES, 327 U.S. 114.  P. 181. 

3.  THE TRIAL COURT'S ERROR IN THE RULING ON THE QUESTION OF LAW DID
NOT DEPRIVE THE DEFENDANT OF ANY RIGHT UNDER THE FEDERAL CONSTITUTION. 
P. 182. 

SUNAL V. LARGE, SUPERINTENDENT, FEDERAL PRISON CAMP. 

NO. 535.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT* . 

*TOGETHER WITH NO. 840, ALEXANDER, WARDEN, V. UNITED STATES EX REL.
KULICK, ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

NO. 535.  IN A HABEAS CORPUS PROCEEDING, THE DISTRICT COURT
DISCHARGED THE WRIT AND REMANDED PETITIONER TO THE CUSTODY OF THE
RESPONDENT.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  157 F.2D 165. 
THIS COURT GRANTED CERTIORARI.  329 U.S. 712.  AFFIRMED, P. 184. 

NO. 840.  IN A HABEAS CORPUS PROCEEDING, THE DISTRICT COURT
DISCHARGED THE WRIT AND REMANDED THE RELATOR HERE TO CUSTODY.  66
F.SUPP.  183.  THE CIRCUIT COURT OF APPEALS REVERSED, AND ORDERED THE
DISCHARGE OF THE RELATOR FROM CUSTODY.  157 F.2D 811.  THIS COURT
GRANTED CERTIORARI.  329 U.S. 712.  REVERSED, P. 184. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SUNAL AND KULICK REGISTERED UNDER THE SELECTIVE TRAINING AND SERVICE
ACT OF 1940, 54 STAT. 885, 57 STAT. 597, 50 U.S.C. APP. SEC. 301, ET
SEQ. EACH IS A JEHOVAH'S WITNESS AND EACH CLAIMED THE EXEMPTION GRANTED
BY CONGRESS TO REGULAR OR DULY ORDAINED MINISTERS OF RELIGION.  FN1
SEC. 5(D).  THE LOCAL BOARDS, AFTER PROCEEDINGS UNNECESSARY TO RELATE
HERE, DENIED THE CLAIMED EXEMPTIONS AND CLASSIFIED THESE REGISTRANTS AS
I-A.  THEY EXHAUSTED THEIR ADMINISTRATIVE REMEDIES BUT WERE UNABLE TO
EFFECT A CHANGE IN THEIR CLASSIFICATIONS.  THEREAFTER THEY WERE ORDERED
TO REPORT FOR INDUCTION - SUNAL ON OCTOBER 25, 1944, KULICK ON NOVEMBER
9, 1944.  EACH REPORTED BUT REFUSED TO SUBMIT TO INDUCTION.  EACH WAS
THEREUPON INDICTED, TRIED AND CONVICTED UNDER SEC. 11 OF THE ACT FOR
REFUSING TO SUBMIT TO INDUCTION.  SUNAL WAS SENTENCED ON MARCH 22,
1945, KULICK ON MAY 7, 1945, EACH TO IMPRISONMENT FOR A TERM OF YEARS. 
NEITHER APPEALED. 

AT THE TRIAL EACH OFFERED EVIDENCE TO SHOW THAT HIS SELECTIVE SERVICE
CLASSIFICATION WAS INVALID.  THE TRIAL COURTS HELD, HOWEVER, THAT SUCH
EVIDENCE WAS INADMISSIBLE, THAT THE CLASSIFICATION WAS FINAL AND NOT
OPEN TO ATTACK IN THE CRIMINAL TRIAL.  ON FEBRUARY 4, 1946, WE DECIDED
ESTEP V. UNITED STATES AND SMITH V. UNITED STATES, 327 U.S. 114.  THESE
CASES  FN2  HELD ON COMPARABLE FACTS THAT A REGISTRANT, WHO HAD
EXHAUSTED HIS ADMINISTRATIVE REMEDIES AND THUS OBVIATED THE RULE OF
FALBO V. UNITED STATES, 320 U.S. 549, WAS ENTITLED, WHEN TRIED UNDER
SEC. 11, TO DEFEND ON THE GROUND THAT HIS LOCAL BOARD EXCEEDED ITS
JURISDICTION IN MAKING THE CLASSIFICATION - FOR EXAMPLE, THAT IT HAD NO
BASIS IN FACT.  327 U.S. PP. 122-123. 

IT IS PLAIN, THEREFORE, THAT THE TRIAL COURTS ERRED IN DENYING SUNAL
AND KULICK THE DEFENSE WHICH THEY TENDERED.  SHORTLY AFTER THE ESTEP
AND SMITH CASES WERE DECIDED, PETITIONS FOR WRITS OF HABEAS CORPUS WERE
FILED ON BEHALF OF SUNAL AND KULICK.  IN EACH CASE IT WAS HELD THAT
HABEAS CORPUS WAS AN AVAILABLE REMEDY.  IN SUNAL'S CASE THE CIRCUIT
COURT OF APPEALS FOR THE FOURTH CIRCUIT HELD THAT THERE WAS A BASIS IN
FACT FOR THE CLASSIFICATION AND AFFIRMED A JUDGMENT DISCHARGING THE
WRIT.  157 F.2D 165.  IN KULICK'S CASE THE CIRCUIT COURT OF APPEALS FOR
THE SECOND CIRCUIT REVERSED A DISTRICT COURT HOLDING THAT THERE WAS
EVIDENCE TO SUPPORT THE CLASSIFICATION, 66 F.SUPP.  183, AND RULED,
WITHOUT EXAMINING THE EVIDENCE, THAT SINCE KULICK HAD BEEN DEPRIVED OF
THE DEFENSE HE SHOULD BE DISCHARGED FROM CUSTODY WITHOUT PREJUDICE TO
FURTHER PROSECUTION.  157 F.2D 811.  THE CASES ARE HERE ON PETITIONS
FOR WRITS OF CERTIORARI, WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF
THE QUESTIONS PRESENTED. 

THE NORMAL AND CUSTOMARY METHOD OF CORRECTING ERRORS OF THE TRIAL IS
BY APPEAL.  APPEALS COULD HAVE BEEN TAKEN IN THESE CASES,  FN3  BUT
THEY WERE NOT.  IT CANNOT BE SAID THAT ABSENCE OF COUNSEL MADE THE
APPEALS UNAVAILABLE AS A PRACTICAL MATTER.  SEE JOHNSON V. ZERBST, 304
U.S. 458, 467.  DEFENDANTS HAD COUNSEL.  NOR WAS THERE ANY OTHER
BARRIER TO THE PERFECTION OF THEIR APPEALS.  CF. COCHRAN V. KANSAS, 316
U.S. 255.  MOREOVER, THIS IS NOT A SITUATION WHERE THE FACTS RELIED ON
WERE DEHORS THE RECORD AND THEREFORE NOT OPEN TO CONSIDERATION AND
REVIEW ON APPEAL.  SEE WALEY V. JOHNSTON, 316 U.S. 101, 104; UNITED
STATES EX REL. MCCANN V. ADAMS, 320 U.S. 220, 221.  AND SEE ADAMS V.
UNITED STATES EX REL. MCCANN, 317 U.S. 269, 274-275.  THE ERROR WAS OF
RECORD IN EACH CASE.  IT IS SAID, HOWEVER, THAT THE FAILURE TO APPEAL
WAS EXCUSABLE, SINCE UNDER THE DECISIONS AS THEY THEN STOOD - MARCH 22,
1945, AND MAY 7, 1945 - THE LOWER COURTS HAD CONSISTENTLY RULED THAT
THE SELECTIVE SERVICE CLASSIFICATION COULD NOT BE ATTACKED IN A
PROSECUTION UNDER SEC. 11.  SEE ESTEP V. UNITED STATES, SUPRA, P. 123,
N. 15.  IT IS ALSO POINTED OUT THAT ON APRIL 30, 1945, WE HAD DENIED
CERTIORARI IN A CASE WHICH SOUGHT TO RAISE THE SAME POINT,  FN4  AND
THAT ESTEP V. UNITED STATES, SUPRA, AND SMITH V. UNITED STATES, SUPRA,
WERE BROUGHT HERE  FN5  AND DECIDED AFTER SUNAL'S AND KULICK'S TIME FOR
APPEAL HAD PASSED.  THE ARGUMENT IS THAT SINCE THE STATE OF THE LAW
MADE THE APPEALS SEEM FUTILE, IT WOULD BE UNFAIR TO THOSE REGISTRANTS
TO CONCLUDE THEM BY THEIR FAILURE TO APPEAL. 

WE PUT TO ONE SIDE COMPARABLE PROBLEMS RESPECTING THE USE OF HABEAS
CORPUS IN THE FEDERAL COURTS TO CHALLENGE CONVICTIONS OBTAINED IN THE
STATE COURTS.  SEE NEW YORK V. ENO, 155 U.S. 89; TINSLEY V. ANDERSON,
171 U.S. 101, 104-105; UNITED STATES EX REL. KENNEDY V. TYLER, 269 U.S.
13; EX PARTE HAWK, 321 U.S. 114, 116-117.  SO FAR AS CONVICTIONS
OBTAINED IN THE FEDERAL COURTS ARE CONCERNED, THE GENERAL RULE IS THAT
THE WRIT OF HABEAS CORPUS WILL NOT BE ALLOWED TO DO SERVICE FOR AN
APPEAL.  ADAMS V. UNITED STATES EX REL. MCCANN, SUPRA, P. 274.  THERE
HAVE BEEN, HOWEVER, SOME EXCEPTIONS.  THAT IS TO SAY, THE WRIT HAS AT
TIMES BEEN ENTERTAINED EITHER WITHOUT CONSIDERATION OF THE ADEQUACY OF
RELIEF BY THE APPELLATE ROUTE OR WHERE AN APPEAL WOULD HAVE AFFORDED AN
ADEQUATE REMEDY.  ILLUSTRATIVE ARE THOSE INSTANCES WHERE THE CONVICTION
WAS UNDER A FEDERAL STATUTE ALLEGED TO BE UNCONSTITUTIONAL,  FN6  WHERE
THERE WAS A CONVICTION BY A FEDERAL COURT WHOSE JURISDICTION OVER THE
PERSON OR THE OFFENSE WAS CHALLENGED N7, WHERE THE TRIAL OR SENTENCE BY
A FEDERAL COURT VIOLATED SPECIFIC CONSTITUTIONAL GUARANTIES.  FN8  IT
IS PLAIN, HOWEVER, THAT THE WRIT IS NOT DESIGNED FOR COLLATERAL REVIEW
OF ERRORS OF LAW COMMITTED BY THE TRIAL COURT - THE EXISTENCE OF ANY
EVIDENCE TO SUPPORT THE CONVICTION,  FN9  IRREGULARITIES IN THE GRAND
JURY PROCEDURE,  FN10  DEPARTURE FROM A STATUTORY GRANT OF TIME IN
WHICH TO PREPARE FOR TRIAL,  FN11 AND OTHER ERRORS IN TRIAL PROCEDURE
WHICH DO NOT CROSS THE JURISDICTIONAL LINE.  CF. CRAIG V. HECHT, 263
U.S. 255. 

YET THE LATTER RULE IS NOT AN ABSOLUTE ONE; AND THE SITUATIONS IN
WHICH HABEAS CORPUS HAS DONE SERVICE FOR AN APPEAL ARE THE EXCEPTIONS. 
THUS WHERE THE JURISDICTION OF THE FEDERAL COURT WHICH TRIED THE CASE
IS CHALLENGED OR WHERE THE CONSTITUTIONALITY OF THE FEDERAL STATUTE
UNDER WHICH CONVICTION WAS HAD IS ATTACKED, HABEAS CORPUS IS
INCREASINGLY DENIED IN CASE AN APPELLATE PROCEDURE WAS AVAILABLE FOR
CORRECTION OF THE ERROR.  FN12  YET, ON THE OTHER HAND, WHERE THE ERROR
WAS FLAGRANT AND THERE WAS NO OTHER REMEDY AVAILABLE FOR ITS
CORRECTION, RELIEF BY HABEAS CORPUS HAS SOMETIMES BEEN GRANTED.  FN13
AS STATED BY CHIEF JUSTICE HUGHES IN BOWEN V. JOHNSTON, 306 U.S. 19,
27, THE RULE WHICH REQUIRES RESORT TO APPELLATE PROCEDURE FOR THE
CORRECTION OF ERRORS "IS NOT ONE DEFINING POWER BUT ONE WHICH RELATES
TO THE APPROPRIATE EXERCISE OF POWER."  THAT RULE IS, THEREFORE, "NOT
SO INFLEXIBLE THAT IT MAY NOT YIELD TO EXCEPTIONAL CIRCUMSTANCES WHERE
THE NEED FOR THE REMEDY AFFORDED BY THE WRIT OF HABEAS CORPUS IS
APPARENT."  ID. P. 27.  THAT CASE WAS DEEMED TO INVOLVE "EXCEPTIONAL
CIRCUMSTANCES" BY REASON OF THE FACT THAT IT INDICATED "A CONFLICT
BETWEEN STATE AND FEDERAL AUTHORITIES ON A QUESTION OF LAW INVOLVING
CONCERNS OF LARGE IMPORTANCE AFFECTING THEIR RESPECTIVE
JURISDICTIONS."  ID. P. 27.  THE COURT ACCORDINGLY ENTERTAINED THE WRIT
TO EXAMINE INTO THE JURISDICTION OF THE COURT TO RENDER THE JUDGMENT OF
CONVICTION. 

THE SAME COURSE WAS FOLLOWED IN EX PARTE HUDGINGS, 249 U.S. 378,
WHERE PETITIONER WAS ADJUDGED GUILTY OF CONTEMPT FOR COMMITTING
PERJURY.  THE COURT DID NOT REQUIRE THE PETITIONER TO PURSUE ANY
APPELLATE ROUTE BUT ISSUED AN ORIGINAL WRIT AND DISCHARGED HIM, HOLDING
THAT PERJURY WITHOUT MORE WAS NOT PUNISHABLE AS A CONTEMPT.  THAT
SITUATION WAS DEEMED EXCEPTIONAL IN VIEW OF "THE NATURE OF THE CASE, OF
THE RELATION WHICH THE QUESTION WHICH IT INVOLVES BEARS GENERALLY TO
THE POWER AND DUTY OF COURTS IN THE PERFORMANCE OF THEIR FUNCTIONS, OF
THE DANGEROUS EFFECT ON THE LIBERTY OF THE CITIZEN WHEN CALLED UPON AS
A WITNESS IN A COURT WHICH MIGHT RESULT IF THE ERRONEOUS DOCTRINE UPON
WHICH THE ORDER UNDER REVIEW WAS BASED WERE NOT PROMPTLY CORRECTED  ...
"  ID. P. 384.  CF. CRAIG V. HECHT, SUPRA. 

THE CIRCUIT COURTS OF APPEALS THOUGHT THAT THE FACTS OF THE PRESENT
CASES LIKEWISE PRESENTED EXCEPTIONAL CIRCUMSTANCES WHICH JUSTIFIED
RESORT TO HABEAS CORPUS THOUGH NO APPEALS WERE TAKEN.  IN THEIR VIEW
THE FAILURE TO APPEAL WAS EXCUSABLE, SINCE RELIEF BY THAT ROUTE SEEMED
QUITE FUTILE. 

BUT DENIAL OF CERTIORARI BY THIS COURT IN THE EARLIER CASE IMPORTED
NO EXPRESSION OF OPINION ON THE MERITS.  HOUSE V. MAYO, 324 U.S. 42,
48, AND CASES CITED.  THE SAME CHIEF COUNSEL REPRESENTED THE DEFENDANTS
IN THE PRESENT CASES AND THOSE IN THE ESTEP AND SMITH CASES.  AT THE
TIME THESE DEFENDANTS WERE CONVICTED THE ESTEP AND SMITH CASES WERE
PENDING BEFORE THE APPELLATE COURTS.  THE PETITION IN THE SMITH CASE
WAS, INDEED, FILED HERE ABOUT TWO WEEKS BEFORE KULICK'S CONVICTION AND
ABOUT A MONTH AFTER SUNAL'S CONVICTION.  THE SAME ROAD WAS OPEN TO
SUNAL AND KULICK AS THE ONE SMITH AND ESTEP TOOK.  WHY THE LEGAL
STRATEGY COUNSELED TAKING APPEALS IN THE SMITH AND ESTEP CASES AND NOT
IN THESE WE DO NOT KNOW.  PERHAPS IT WAS BASED ON THE FACTS OF THESE
TWO CASES.  FOR THE QUESTION OF LAW HAD NOT BEEN DECIDED BY THE COURT;
AND COUNSEL WAS PRESSING FOR A DECISION HERE.  THE CASE, THEREFORE, IS
NOT ONE WHERE THE LAW WAS CHANGED AFTER THE TIME FOR APPEAL HAD
EXPIRED.  CF. WARRING V. COLPOYS, 122 F.2D 642.  IT IS RATHER A
SITUATION WHERE AT THE TIME OF THE CONVICTIONS THE DEFINITIVE RULING ON
THE QUESTION OF LAW HAD NOT CRYSTALLIZED.  OF COURSE, IF SUNAL AND
KULICK HAD PURSUED THE APPELLATE COURSE AND FAILED, THEIR CASES WOULD
BE QUITE DIFFERENT.  BUT SINCE THEY CHOSE NOT TO PURSUE THE REMEDY
WHICH THEY HAD, WE DO NOT THINK THEY SHOULD NOW BE ALLOWED TO JUSTIFY
THEIR FAILURE BY SAYING THEY DEEMED ANY APPEAL FUTILE. 

WE ARE DEALING HERE WITH A PROBLEM WHICH HAS RADIATIONS FAR BEYOND
THE PRESENT CASES.  THE COURTS WHICH TRIED THE DEFENDANTS HAD
JURISDICTION OVER THEIR PERSONS AND OVER THE OFFENSE.  THEY COMMITTED
AN ERROR OF LAW IN EXCLUDING THE DEFENSE WHICH WAS TENDERED.  THAT
ERROR DID NOT GO TO THE JURISDICTION OF THE TRIAL COURT.  CONGRESS,
MOREOVER, HAS PROVIDED A REGULAR, ORDERLY METHOD FOR CORRECTION OF ALL
SUCH ERRORS BY GRANTING AN APPEAL TO THE CIRCUIT COURT OF APPEALS AND
BY VESTING US WITH CERTIORARI JURISDICTION.  IT IS NOT UNCOMMON AFTER A
TRIAL IS ENDED AND THE TIME FOR APPEAL HAS PASSED TO DISCOVER THAT A
SHIFT IN THE LAW OR THE IMPACT OF A NEW DECISION HAS GIVEN INCREASED
RELEVANCE TO A POINT MADE AT THE TRIAL BUT NOT PURSUED ON APPEAL.  CF.
WARRING V. COLPOYS, SUPRA.  IF IN SUCH CIRCUMSTANCES, HABEAS CORPUS
COULD BE USED TO CORRECT THE ERROR, THE WRIT WOULD BECOME A DELAYED
MOTION FOR A NEW TRIAL, RENEWED FROM TIME TO TIME AS THE LEGAL CLIMATE
CHANGED.  ERROR WHICH WAS NOT DEEMED SUFFICIENTLY ADEQUATE TO WARRANT
AN APPEAL WOULD ACQUIRE NEW IMPLICATIONS.  EVERY ERROR IS POTENTIALLY
REVERSIBLE ERROR; AND MANY RULINGS OF THE TRIAL COURT SPELL THE
DIFFERENCE BETWEEN CONVICTION AND ACQUITTAL.  IF DEFENDANTS WHO ACCEPT
THE JUDGMENT OF CONVICTION AND DO NOT APPEAL CAN LATER RENEW THEIR
ATTACK ON THE JUDGMENT BY HABEAS CORPUS, LITIGATION IN THESE CRIMINAL
CASES WILL BE INTERMINABLE.  WISE JUDICIAL ADMINISTRATION OF THE
FEDERAL COURTS COUNSELS AGAINST SUCH COURSE, AT LEAST WHERE THE ERROR
DOES NOT TRENCH ON ANY CONSTITUTIONAL RIGHTS OF DEFENDANTS NOR INVOLVE
THE JURISDICTION OF THE TRIAL COURT. 

AN ENDEAVOR IS MADE TO MAGNIFY THE ERROR IN THESE TRIALS TO
CONSTITUTIONAL PROPORTIONS BY ASSERTING THAT THE REFUSAL OF THE
PROFFERED EVIDENCE ROBBED THE TRIAL OF VITALITY BY DEPRIVING DEFENDANTS
OF THEIR ONLY REAL DEFENSE.  BUT AS MUCH MIGHT BE SAID OF MANY RULINGS
DURING A CRIMINAL TRIAL.  DEFENDANTS RECEIVED THROUGHOUT AN OPPORTUNITY
TO BE HEARD AND ENJOYED ALL PROCEDURAL GUARANTIES GRANTED BY THE
CONSTITUTION.  ERROR IN RULING ON THE QUESTION OF LAW DID NOT INFECT
THE TRIAL WITH LACK OF PROCEDURAL DUE PROCESS.  AS STATED BY MR.
JUSTICE CARDOZO IN ESCOE V. ZERBST, 295 U.S. 490, 494, "WHEN A HEARING
IS ALLOWED BUT THERE IS ERROR IN CONDUCTING IT OR IN LIMITING ITS
SCOPE, THE REMEDY IS BY APPEAL.  WHEN AN OPPORTUNITY TO BE HEARD IS
DENIED ALTOGETHER, THE ENSUING MANDATE OF THE COURT IS VOID, AND THE
PRISONER CONFINED THEREUNDER MAY HAVE RECOURSE TO HABEAS CORPUS TO PUT
AN END TO THE RESTRAINT."    IT IS SAID THAT THE CONTRARY POSITION WAS
INDICATED BY THE FOLLOWING STATEMENT IN ESTEP V. UNITED STATES, SUPRA,
PP. 124-125, 

"BUT IF WE NOW HOLD THAT A REGISTRANT COULD NOT DEFEND AT HIS TRIAL
ON THE GROUND THAT THE LOCAL BOARD HAD NO JURISDICTION IN THE PREMISES,
IT WOULD SEEM THAT THE WAY WOULD THEN BE OPEN TO HIM TO CHALLENGE THE
JURISDICTION OF THE LOCAL BOARD AFTER CONVICTION BY HABEAS CORPUS.  THE
COURT WOULD THEN BE SENDING MEN TO JAIL TODAY WHEN IT WAS APPARENT THAT
THEY WOULD HAVE TO BE RELEASED TOMORROW."    WE WERE THERE EXAMINING
THE ALTERNATIVE PRESSED ON US - THAT THE CLASSIFICATION COULD NOT BE
ATTACKED AT THE TRIAL.  IF WE DENIED THE DEFENSE, WE CONCLUDED THAT
HABEAS CORPUS WOULD LIE THE MOMENT AFTER CONVICTION.  FOR ONE CONVICTED
OF VIOLATING AN ILLEGAL ORDER OF A SELECTIVE SERVICE BOARD, LIKE ONE
CONVICTED OF VIOLATING AN UNCONSTITUTIONAL STATUTE, SHOULD BE AFFORDED
AN OPPORTUNITY AT SOME STAGE TO ESTABLISH THE FACT.  AND WHERE NO OTHER
OPPORTUNITY EXISTED, HABEAS CORPUS WOULD BE THE APPROPRIATE REMEDY. 
FN14  BUT THAT WAS AN ADDITIONAL REASON FOR ALLOWING THE DEFENSE IN THE
CRIMINAL TRIAL, NOT A STATEMENT THAT DEFENDANTS PROSECUTED UNDER SEC.
11 HAD AN ALTERNATIVE OF DEFENDING AT THE TRIAL ON THE BASIS OF AN
ILLEGAL CLASSIFICATION OR RESORTING TO HABEAS CORPUS AFTER CONVICTION. 
THESE REGISTRANTS HAD AVAILABLE A METHOD OF OBTAINING THE RIGHT TO
DEFEND THEIR PROSECUTIONS UNDER SEC. 11 ON THAT GROUND.  THEY DID NOT
USE IT.  AND SINCE WE FIND NO EXCEPTIONAL CIRCUMSTANCES WHICH EXCUSE
THEIR FAILURE, HABEAS CORPUS MAY NOT NOW BE USED AS A SUBSTITUTE. 

ACCORDINGLY SUNAL V. LARGE WILL BE AFFIRMED AND ALEXANDER V. KULICK
WILL BE REVERSED.  SO ORDERED. 

FN1  SUNAL IN 1942 WAS CLASSIFIED AS A CONSCIENTIOUS OBJECTOR AND
ORDERED TO REPORT FOR WORK OF NATIONAL IMPORTANCE.  ON HIS FAILURE TO
DO SO HE WAS CONVICTED UNDER THE ACT AND A FINE AND TERM OF
IMPRISONMENT WERE IMPOSED.  THE EVENTS WITH WHICH WE ARE NOW CONCERNED
RELATE TO HIS CLASSIFICATION AFTER HIS DISCHARGE FROM PRISON. 

FN2  THE SMITH CASE WAS DECIDED BY THE CIRCUIT COURT OF APPEALS ON
APRIL 4, 1945, 148 F.2D 288; THE PETITION FOR CERTIORARI WAS FILED
APRIL 25, 1945, AND GRANTED MAY 28, 1945.  325 U.S. 846.  THE ESTEP
CASE WAS DECIDED BY THE CIRCUIT COURT OF APPEALS ON JULY 6, 1945, 150
F.2D 768; THE PETITION FOR CERTIORARI WAS FILED AUGUST 3, 1945, AND
GRANTED OCTOBER 8, 1945.  326 U.S. 703. 

FN3  WE THEREFORE LAY TO ONE SIDE CASES SUCH AS BRIDGES V. WIXON, 326
U.S. 135, DUNCAN V. KAHANAMOKU, 327 U.S. 304, AND EAGLES V. UNITED
STATES EX REL. SAMUELS, 329 U.S. 304, WHERE THE ORDER OF THE AGENCY
UNDER WHICH PETITIONER WAS DETAINED WAS NOT SUBJECT TO JUDICIAL
REVIEW. 

FN4  RINKO V. UNITED STATES, 325 U.S. 851.  WE ALSO DENIED CERTIORARI
IN FLAKOWICZ V. UNITED STATES, 325 U.S. 851; BUT IT, LIKE FALBO V.
UNITED STATES, SUPRA, WAS ONE WHERE THE ADMINISTRATIVE REMEDIES HAD NOT
BEEN EXHAUSTED, THERE BEING AN ADDITIONAL EXAMINATION WHICH THE
REGISTRANT HAD NOT TAKEN.  SEE GIBSON V. UNITED STATES, 329 U.S. 338. 

FN5  SEE NOTE 2, SUPRA. 

FN6  EX PARTE SIEBOLD, 100 U.S. 371; EX PARTE CURTIS, 106 U.S. 371;
EX PARTE YARBROUGH, 110 U.S. 651; IN RE COY, 127 U.S. 731; MATTER OF
HEFF, 197 U.S. 488; MATTER OF GREGORY, 219 U.S. 210; BAENDER V.
BARNETT, 255 U.S. 224. 

FN7  EX PARTE WATKINS, 3 PET. 193; EX PARTE PARKS, 93 U.S. 18; BOWEN
V. JOHNSTON, 306 U.S. 19. 

FN8  EX PARTE LANGE, 18 WALL.  163(DOUBLE JEOPARDY); IN RE SNOW, 120
U.S. 274(SAME); IN RE NIELSEN, 131 U.S. 176(SAME); COUNSELMAN V.
HITCHCOCK, 142 U.S. 547(SELF-INCRIMINATION); EX PARTE WILSON, 114 U.S.
417(REQUIREMENT OF INDICTMENT); EX PARTE BAIN, 121 U.S. 1(SAME); CALLAN
V. WILSON, 127 U.S. 540(JURY TRIAL); JOHNSON V. ZERBST, SUPRA (RIGHT TO
COUNSEL); WALKER V. JOHNSTON, 312 U.S. 275(SAME); WALEY V. JOHNSTON,
SUPRA (COERCED PLEA OF GUILTY). 

FN9  HARLAN V. MCGOURIN, 218 U.S. 442. 

FN10  EX PARTE HARDING, 120 U.S. 782; KAIZO V. HENRY, 211 U.S. 146. 

FN11  MCMICKING V. SCHIELDS, 238 U.S. 99.  THE RULE IS EVEN MORE
STRICT WHERE HABEAS CORPUS IS SOUGHT BEFORE TRIAL.  SEE JOHNSON V. HOY,
227 U.S. 245. 

FN12  IN RE LINCOLN, 202 U.S. 178; TOY TOY V. HOPKINS, 212 U.S. 542;
GLASGOW V. MOYER, 225 U.S. 420. 

FN13  TINSLEY V. TREAT, 205 U.S. 20(REMOVAL CASE).  IN REMOVAL CASES
HABEAS CORPUS IS AVAILABLE NOT TO WEIGH THE EVIDENCE TO SUPPORT THE
ACCUSATION BUT TO DETERMINE WHETHER THERE IS AN ENTIRE LACK OF EVIDENCE
TO SUPPORT IT.  HYDE V. SHINE, 199 U.S. 62, 84.  IT IS ALSO AVAILABLE
TO DETERMINE WHETHER REMOVAL TO THE DISTRICT IN QUESTION VIOLATES A
CONSTITUTIONAL RIGHT OF THE ACCUSED, HAAS V. HENKEL, 216 U.S. 462, OR
WHETHER THE COURT BEFORE WHICH IT IS PROPOSED TO TAKE AND TRY THE
ACCUSED HAS JURISDICTION OVER THE OFFENSE.  SALINGER V. LOISEL, 265
U.S. 224.  BUT HABEAS CORPUS WILL NOT BE ENTERTAINED TO PASS ON THE
QUESTION OF JURISDICTION WHERE IT INVOLVES CONSIDERATION OF MANY FACTS
AND SERIOUSLY CONTROVERTED QUESTIONS OF LAW.  RODMAN V. POTHIER, 264
U.S. 399; HENRY V. HENKEL, 235 U.S. 219. 

FN14  THE REMEDY OF HABEAS CORPUS EXTENDS TO A CASE WHERE A PERSON
"IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR OF A LAW ...  OF THE
UNITED STATES  ...  "  R.S. SEC. 753, 28 U.S.C. SEC. 453. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THAT HABEAS CORPUS CANNOT BE MADE TO DO SERVICE FOR AN APPEAL IS A
WELL-WORN FORMULA.  BUT THIS GENERALIZATION SHOULD NOT DISPOSE OF THESE
TWO CASES, IF THEIR ACTUALITIES ARE VIEWED IN THE LIGHT OF OUR
DECISIONS. 

THE FIRST JUDICIARY ACT EMPOWERED THE COURTS OF THE UNITED STATES TO
ISSUE WRITS OF HABEAS CORPUS.  SECTION 14 OF THE ACT OF SEPTEMBER 24,
1789, 1 STAT. 73, 81.  SINCE THE SCOPE OF THE WRIT WAS NOT DEFINED BY
CONGRESS, IT CARRIED ITS COMMON LAW IMPLICATIONS.  THE WRIT WAS GREATLY
ENLARGED AFTER THE CIVIL WAR BY THE ACT OF FEBRUARY 5, 1867.  14 STAT.
385.  (FOR LEGISLATION DEALING WITH HABEAS CORPUS SEE NOTE IN 18 F.
68.)  IT WAS NO LONGER LIMITED TO SEARCHING THE FACE OF A JUDGMENT OF A
COURT OF COMPETENT JURISDICTION.  IT WAS AVAILABLE TO CUT THROUGH FORMS
AND GO "TO THE VERY TISSUE OF THE STRUCTURE," MR. JUSTICE HOLMES IN
FRANK V. MANGUM, 237 U.S. 309, 345, 346, THOUGH IT WAS CERTAINLY NOT TO
BE INVOKED MERELY AS A SUBSTITUTE FOR AN AVAILABLE APPEAL.  BUT WHAT IS
"FORM" AND WHAT IS THE "TISSUE OF THE STRUCTURE," AND WHEN IS A WRIT
SOUGHT IN FACT AS A SUBSTITUTE FOR AN APPEAL IN A PRACTICAL VIEW OF THE
ADMINISTRATION OF JUSTICE, ARE QUESTIONS TO WHICH OUR DECISIONS GIVE
DUBIOUS AND CONFUSED ANSWERS.  I THINK IT IS FAIR TO SAY THAT THE SCOPE
OF HABEAS CORPUS IN THE FEDERAL COURTS IS AN UNTIDY AREA OF OUR LAW
THAT CALLS FOR MUCH MORE SYSTEMATIC CONSIDERATION THAN IT HAS THUS FAR
RECEIVED. 

THE EXTENT TO WHICH THIS COURT HAS LEFT ITSELF UNHAMPERED, BY NOT
DRAWING SHARP JURISDICTIONAL LINES, IS INDICATED BY THE FOLLOWING VERY
TENTATIVE CLASSIFICATION OF CATEGORIES IN WHICH HABEAS CORPUS HAS NOT
BEEN DEEMED BEYOND THE POWER OF FEDERAL COURTS TO ENTERTAIN: 

(1)  CONVICTION BY A FEDERAL COURT WHICH HAD NO JURISDICTION EITHER
OVER THE PERSON OR OF THE OFFENSE.  SEE EX PARTE WATKINS, 3 PET. 193,
203; EX PARTE PARKS, 93 U.S. 18, 23.  BUT THE WRIT IS DISCRETIONARY AND
MAY NOT ISSUE EVEN THOUGH IF AN OPPORTUNITY WERE ALLOWED SUCH WANT OF
JURISDICTION MIGHT BE ESTABLISHED.  SEE TOY TOY V. HOPKINS, 212 U.S.
542, AND RODMAN V. POTHIER, 264 U.S. 399.  AND COMPARE IN RE MAYFIELD,
141 U.S. 107, WITH IN RE BLACKBIRD, 66 F. 541. 

(2)  CONVICTION UNDER UNCONSTITUTIONAL STATUTE.  EX PARTE VIRGINIA,
100 U.S. 339, 343; EX PARTE SIEBOLD, 100 U.S. 371; EX PARTE CURTIS, 106
U.S. 371; EX PARTE YARBROUGH, 110 U.S. 651.  THE WRIT WAS DENIED IN
EACH CASE, BUT THE COURT PASSED ON THE CONSTITUTIONALITY OF THE
STATUTE.  HERE TOO THE AVAILABILITY OF THE WRIT WILL DEPEND ON THE
CIRCUMSTANCES OF THE CASE, PARTICULARLY THE STAGE IN THE CRIMINAL
PROCEEDINGS AT WHICH THE WRIT IS SOUGHT.  JOHNSON V. HOY, 227 U.S. 245;
HENRY V. HENKEL, 235 U.S. 219.  COMPARE GLASGOW V. MOYER, 225 U.S. 420,
WITH MATTER OF GREGORY, 219 U.S. 210.  SEE ALSO IN RE LINCOLN, 202 U.S.
178. 

(3)  VIOLATION BY FEDERAL COURTS OF SPECIFIC CONSTITUTIONAL RIGHTS:
(A) DOUBLE JEOPARDY.  COMPARE EX PARTE BIGELOW, 113 U.S. 328, WITH IN
RE SNOW, 120 U.S. 274, AND NIELSEN, PETITIONER, 131 U.S. 176; (B) SELF
CRIMINATION.  WRIT GRANTED AS TO A WITNESS HELD IN CONTEMPT, THOUGH
APPARENTLY NOT AS TO A DEFENDANT RESTRAINED ON CHARGE OF CRIME. 
COMPARE COUNSELMAN V. HITCHCOCK, 142 U.S. 547, AND EX PARTE IRVINE, 74
F. 954(TAFT, CIRCUIT JUDGE), WITH MATTER OF MORAN, 203 U.S. 96; (C) NO
INDICTMENT BY GRAND JURY.  EX PARTE WILSON, 114 U.S. 417.  ALSO EX
PARTE BAIN, 121 U.S. 1.  AS TO DENIAL OF CONSTITUTIONAL RIGHTS IN STATE
COURTS, MOORE V. DEMPSEY, 261 U.S. 86. 

(4)  DUE REGARD FOR HARMONIOUS NATION-STATE RELATIONS, NEED TO AVOID
FRICTION AND MAINTAIN BALANCE.  SEE EX PARTE ROWLAND, 104 U.S. 604; IN
RE AYERS, 123 U.S. 443; IN RE SAWYER, 124 U.S. 200; BOWEN V. JOHNSTON,
306 U.S. 19.  COMPARE IN RE TYLER, 149 U.S. 164; IN RE SWAN, 150 U.S.
637; EX PARTE YOUNG, 209 U.S. 123.  AVAILABILITY OF OTHER REMEDIES IS
HERE AN IMPORTANT FACTOR.  SIMILARLY AS TO STATE INTERFERENCE WITH
FEDERAL OFFICERS, PROMPT RELIEF MAY BE DEEMED NECESSARY.  OHIO V.
THOMAS, 173 U.S. 276.  SEE ALSO IN RE NEAGLE, 135 U.S. 1; HUNTER V.
WOOD, 209 U.S. 205. 

(5)  INSUFFICIENCY OF INDICTMENTS IS NOT OPEN ON HABEAS CORPUS; IT
MAY BE IN REMOVAL CASES, IN VIEW OF THE HARDSHIP TO THE INDIVIDUAL AND
THE INADEQUACY OF OTHER REMEDIES.  COMPARE TINSLEY V. TREAT, 205 U.S.
20; ALSO HYDE V. SHINE, 199 U.S. 62.  COMPARE ALSO THE EXTRADITION
CASES.  BENSON V. MCMAHON, 127 U.S. 457; ORNELAS V. RUIZ, 161 U.S. 502;
BRYANT V. UNITED STATES, 167 U.S. 104. 

(6)  DEFECTS IN JURY PANEL, IN TRIAL PROCEDURE, EXCLUSION OR
INSUFFICIENCY OF EVIDENCE, ARE RARELY HELD GROUND FOR RELIEF ON HABEAS
CORPUS.  BUT WHEN NO OTHER REMEDY WAS AVAILABLE AND THE ERROR APPEARED
FLAGRANT, THERE HAVE BEEN INSTANCES OF RELIEF.  SEE TINSLEY V. TREAT,
205 U.S. 20.  COMPARE EX PARTE BAIN, 121 U.S. 1. 

(7)  LEGALITY OF SENTENCE OR CONDITIONS OF CONFINEMENT.  EX PARTE
LANGE, 18 WALL.  163; IN RE BONNER, 151 U.S. 242. 

(8)  CONTEMPT CASES.  EX PARTE HUDGINGS, 249 U.S. 378, 384.  COMPARE,
SAVIN, PETITIONER, 131 U.S. 267, AND CUDDY, PETITIONER, 131 U.S. 280. 
BUT WHEN APPEAL IS SUFFICIENT REMEDY, SEE CRAIG V. HECHT, 263 U.S. 255,
AND JUDGE LEARNED HAND'S DISSENTING OPINION IN THE CRAIG CASE, 282 F.
138, 155. 

PERHAPS IT IS WELL THAT A WRIT THE HISTORIC PURPOSE OF WHICH IS TO
FURNISH "A SWIFT AND IMPERATIVE REMEDY IN ALL CASES OF ILLEGAL
RESTRAINT," SEE LORD BIRKENHEAD, L.C., SECRETARY OF STATE FOR HOME
AFFAIRS V. O'BRIEN, (1923) A.C. 603, 609, SHOULD BE LEFT FLUID AND FREE
FROM THE DEFINITENESS APPROPRIATE TO ORDINARY JURISDICTIONAL
DOCTRINES.  BUT IF WE ARE TO LEAVE THE LAW PERTAINING TO HABEAS CORPUS
IN THE UNSYSTEMATIZED CONDITION IN WHICH WE FIND IT, THEN I BELIEVE IT
IS TRUE OF BOTH CASES WHAT JUDGE LEARNED HAND SAID OF THE KULICK CASE,
THAT THE WRIT IS NECESSARY "TO PREVENT A COMPLETE MISCARRIAGE OF
JUSTICE."  157 F.2D 811, 813.  IF THE JUSTIFICATION NEED BE NO MORE
DEFINITE THAN THE EXISTENCE OF "EXCEPTIONAL CIRCUMSTANCES," BOWEN V.
JOHNSTON, 306 U.S. 19, 27, THE REASONS FOR ALLOWING THE WRITS IN THESE
CASES ARE MORE COMPELLING THAN WERE THOSE IN BOWEN V. JOHNSTON, WHERE
THERE MERELY APPEARED "TO BE UNCERTAINTY AND CONFUSION  ...  WHETHER
OFFENSES WITHIN THE  ...  NATIONAL PARK ARE TRIABLE IN THE STATE OR
FEDERAL COURTS."  FOR THE REASONS SET FORTH IN JUDGE HAND'S OPINION, IT
"WOULD PASS ALL FAIR DEMANDS UPON KULICK'S DILIGENCE TO CONCLUDE HIM
BECAUSE OF HIS FAILURE TO APPEAL."  157 F.2D AT 813. 

I AGREE WITH BOTH CIRCUIT COURTS OF APPEALS THAT HABEAS CORPUS WAS
AVAILABLE AS A REMEDY IN THE CIRCUMSTANCES OF THESE CASES, BUT SINCE
THE COURT DOES NOT CONSIDER THE MERITS, I SHALL ABSTAIN FROM DOING SO. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I AM IN AGREEMENT WITH MR. JUSTICE FRANKFURTER IN THE RESULT AND
SUBSTANTIALLY IN THE VIEWS HE EXPRESSES.  I WOULD MODIFY THEM BY MAKING
DEFINITE AND CERTAIN HIS TENTATIVELY EXPRESSED CONCLUSION THAT THE
GREAT WRIT OF HABEAS CORPUS SHOULD NOT BE CONFINED BY RIGIDITIES
CHARACTERIZING ORDINARY JURISDICTIONAL DOCTRINES.  AND I AGREE WITH
JUDGE LEARNED HAND, IN THE VIEW STATED FOR THE CIRCUIT COURT OF APPEALS
IN KULICK'S CASE, THAT UPON THE SUM OF OUR DECISIONS, FN1  REGARDLESS
OF THE VARIETY OF STATEMENT IN THE OPINIONS, NO MORE DEFINITE RULE IS
TO BE DRAWN OUT THAN THAT "THE WRIT IS AVAILABLE, NOT ONLY TO DETERMINE
POINTS OF JURISDICTION, STRICTI JURIS, AND CONSTITUTIONAL QUESTIONS;
BUT WHENEVER ELSE RESORT TO IT IS NECESSARY TO PREVENT A COMPLETE
MISCARRIAGE OF JUSTICE."  157 F.2D 811, 813. 

IN MY OPINION NOT ONLY IS THIS THE LAW, MEASURED BY THE SUM OF THE
DECISIONS AND THE APPLICABLE STATUTE,  FN2  BUT THE AGGREGATE OF THE
RESULTS DEMONSTRATES IT SHOULD BE THE LAW. 

CONFUSION IN THE OPINIONS THERE IS, IN QUANTITY.  BUT IT ARISES IN
PART FROM THE EFFORT TO PIN DOWN WHAT BY ITS NATURE CANNOT BE CONFINED
IN SPECIAL, ALL-INCLUSIVE CATEGORIES, UNLESS THE OFFICE OF THE WRIT IS
TO BE DILUTED OR DESTROYED WHERE THAT SHOULD NOT HAPPEN.  AND SO
LIMITATION IN ASSERTION GIVES WAY TO THE NECESSITY FOR ACHIEVING THE
WRIT'S HISTORIC PURPOSE WHEN THE TWO COLLIDE.  ADMIRABLE AS MAY BE THE
EFFORT TOWARD SYSTEM, THIS LAST RESORT FOR HUMAN LIBERTY CANNOT YIELD
WHEN THE CHOICE IS BETWEEN TOLERATING ITS WRONGFUL DEPRIVATION AND
MAINTAINING THE SYSTEMATIST'S ART.    THE WRIT SHOULD BE AVAILABLE
WHENEVER THERE CLEARLY HAS BEEN A FUNDAMENTAL MISCARRIAGE OF JUSTICE
FOR WHICH NO OTHER ADEQUATE REMEDY IS PRESENTLY AVAILABLE.  BESIDE
EXECUTING ITS GREAT OBJECT, WHICH IS THE PRESERVATION OF PERSONAL
LIBERTY AND ASSURANCE AGAINST ITS WRONGFUL DEPRIVATION, CONSIDERATIONS
OF ECONOMY OF JUDICIAL TIME AND PROCEDURES, IMPORTANT AS THEY
UNDOUBTEDLY ARE, BECOME COMPARATIVELY INSIGNIFICANT.  FN3  THIS APPLIES
TO SITUATIONS INVOLVING THE PAST EXISTENCE OF A REMEDY PRESENTLY
FORECLOSED, AS WELL AS TO OTHERS WHERE NO SUCH REMEDY HAS EVER BEEN
AFFORDED. 

IN THE PREVAILING STATE OF OUR CRIMINAL LAW, FEDERAL AND STATE, THERE
ARE FEW ERRORS, EITHER FUNDAMENTAL OR OF LESSER GRAVITY, WHICH CANNOT
BE CORRECTED BY APPEAL TIMELY TAKEN, UNLESS THE FACTS DISCLOSING OR
CONSTITUTING THEM ARISE AFTER THE TIME HAS EXPIRED.  IF THE EXISTENCE
OF A REMEDY BY APPEAL AT SOME STAGE OF THE CRIMINAL PROCEEDINGS IS TO
BE TAKEN FOR THE CRITERION, THEN IN VERY FEW INSTANCES, FAR LESS THAN
THE NUMBER COMPREHENDED BY OUR DECISIONS, WILL THE WRIT BE AVAILABLE. 
TAKEN LITERALLY, THE FORMULA SO OFTEN REPEATED, THAT THE WRIT IS NOT A
SUBSTITUTE FOR APPEAL, IS THUS IN CONFLICT WITH EVERY CASE WHERE THE
GROUND UPON WHICH THE WRIT HAS BEEN ALLOWED EITHER WAS OR MIGHT HAVE
BEEN ASSERTED ON APPEAL.  FN4  THE FORMULA HAS OBVIOUS VALIDITY IN THE
SENSE THAT THE WRIT IS NOT READILY TO BE USED FOR OVERTURNING
DETERMINATIONS MADE ON APPEAL OR FOR SECURING REVIEW WHERE NO
SPECIFICATION HAS BEEN MADE OR NO APPEAL HAS BEEN TAKEN OF MATTERS NOT
GOING TO MAKE THE CONVICTION A GROSS MISCARRIAGE OF JUSTICE. 

BUT ANY EFFORT TO SHUT OFF THE WRIT'S FUNCTIONING MERELY BECAUSE
APPEAL HAS NOT BEEN TAKEN IN A SITUATION WHERE, BUT FOR THAT FACT
ALONE, THE WRIT WOULD ISSUE, SEEMS TO ME TO PRESCRIBE A SYSTEM OF
FORFEITURES IN THE LAST AREA WHERE SUCH A SYSTEM SHOULD PREVAIL. 
CERTAINLY A BASIC MISCARRIAGE OF JUSTICE IS NO LESS GREAT OR HARMFUL,
EITHER TO THE INDIVIDUAL OR TO THE GENERAL CAUSE OF PERSONAL LIBERTY,
MERELY BECAUSE APPEAL HAS NOT BEEN TAKEN, THAN WHERE APPEAL IS TAKEN
BUT RELIEF IS WRONGFULLY DENIED. 

THESE CONSIDERATIONS APPLY WITH SPECIAL FORCE, THOUGH NOT
EXCLUSIVELY, WHERE GOOD REASON EXISTED, AS I THINK DID HERE, FOR
FAILURE TO NOTE THE APPEAL IN THE BRIEF TIME ALLOWED.  FN5 WHETHER OR
NOT THE INFERIOR FEDERAL COURTS WERE JUSTIFIED IN TAKING THE FALBO
DECISION  FN6  FOR MORE THAN ITS SPECIFIC RULING, THE FACT REMAINS THAT
THEIR BROADLY PREVAILING VIEW WAS THAT THAT CASE HAD CUT OFF ALL RIGHT
TO MAKE SUCH DEFENSES AS SUNAL AND KULICK TENDERED.  FN7 

IN THAT PREVAILING CLIMATE OF OPINION IN THOSE COURTS, THERE WAS
HARDLY ANY CHANCE THAT APPEAL TO THE FEDERAL CIRCUIT COURTS OF APPEALS
WOULD BRING RELIEF BY THEIR ACTION.  FN8  THE CHANCES FOR REVERSAL
THEREFORE HUNG ALMOST EXCLUSIVELY UPON THE DOUBTFUL, NOT TO SAY
SLENDER,  FN9  CHANCE THAT THIS COURT IN THE EXERCISE OF ITS
DISCRETIONARY POWER WOULD GRANT CERTIORARI. 

THE DEPRIVATION HERE WAS OF THE RIGHT TO MAKE ANY SUBSTANTIAL
DEFENSE.  FN10  I DO NOT THINK A TRIAL WHICH FORECLOSES THE BASIC RIGHT
TO DEFEND, UPON THE ONLY VALID GROUND AVAILABLE FOR THAT PURPOSE, IS
ANY LESS UNFAIR OR CONCLUSIVE AS AGAINST THE OFFICE OF HABEAS CORPUS
THAN ONE WHICH TAKES PLACE WHEN THE COURT IS WITHOUT JURISDICTION TO
TRY THE OFFENSE, AS WHEN THE CHARGE IS MADE UNDER AN UNCONSTITUTIONAL
STATUTE OR FOR OTHER REASON SETS FORTH NO LAWFULLY PRESCRIBED OFFENSE,
OR WHEN THE COURT LOSES JURISDICTION BY DEPRIVING THE ACCUSED OF HIS
CONSTITUTIONAL RIGHT TO COUNSEL.  THAT RIGHT IS NO MORE AND NO LESS
THAN AN IMPORTANT SEGMENT OF THE RIGHT TO HAVE ANY VALID DEFENSE
ADVANCED AND CONSIDERED.  IT BECOMES ALMOST MEANINGLESS IF THE LARGER
RIGHT TO DEFEND IS ITSELF CUT OFF.  FN11 

WITH MR. JUSTICE FRANKFURTER, SINCE THE COURT REACHES ONLY THE
QUESTION OF THE AVAILABILITY OF HABEAS CORPUS, I DO NOT CONSIDER
OTHERS. 

FN1  INCLUDING THOSE CITED IN THE COURT'S OPINION AND THAT OF MR.
JUSTICE FRANKFURTER.  SEE ALSO DISSENTING OPINION, EX PARTE CRAIG, 282
F. 138, 155-159, AFFIRMED IN CRAIG V. HECHT, 263 U.S. 255; THE WRIT OF
HABEAS CORPUS IN THE FEDERAL COURTS (1935) 35 COL. L. REV. 404. 

FN2  REV. STAT. SEC. 761, 28 U.S.C. SEC. 461, WHICH COMMANDS THE
COURT, AFTER HEARING TO "DISPOSE OF THE PARTY AS LAW AND JUSTICE
REQUIRE."  CF. FRANK V. MANGUM, 237 U.S. 309, 330, 331, AND DISSENTING
OPINION OF MR. JUSTICE HOLMES, AT 345 FF., CONCURRED IN BY MR. JUSTICE
HUGHES, WHO AFTERWARD AS CHIEF JUSTICE WROTE THE COURT'S OPINION IN
BOWEN V. JOHNSTON, 306 U.S. 19.  SEE NOTE 4.  PERTINENTLY THE STATUTE
APPLIES TO PRISONERS "IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR OF
A LAW OR TREATY OF THE UNITED STATES  ...  "  REV. STAT. SEC. 753, 28
U.S.C. SEC. 453. 

FN3  IT IS FOR THIS REASON THAT THE DOCTRINE OF RES JUDICATA DOES NOT
APPLY TO HABEAS CORPUS DETERMINATIONS, WALEY V. JOHNSTON, 316 U.S. 101,
105, ALTHOUGH A PRIOR REFUSAL TO DISCHARGE THE PRISONER ON A LIKE
APPLICATION MAY BE GIVEN WEIGHT, SALINGER V. LOISEL, 265 U.S. 224, 231,
FOR OBVIOUS REASONS OF JUDICIAL ADMINISTRATION. 

FN4  IN THE FOLLOWING CASES THE COURT EITHER PASSED UPON THE
SUBSTANCE OF THE CONTENTIONS PRESENTED IN THE PETITION FOR WRIT OF
HABEAS CORPUS OR HELD THAT THE PETITIONER WAS ENTITLED TO A HEARING,
ALTHOUGH, SO FAR AS APPEARS, AT THE TIME THE PETITION WAS FILED THE
TIME TO APPEAL HAD EXPIRED, E.G., BOWEN V. JOHNSTON, 306 U.S. 19;
WALKER V. JOHNSTON, 312 U.S. 275; JOHNSON V. ZERBST, 304 U.S. 458, SEE
THE WRIT OF HABEAS CORPUS IN THE FEDERAL COURTS (1935) 35 COL. L. REV.
404, 414, N. 66; AN APPEAL HAD ALREADY BEEN TAKEN, MOORE V. DEMPSEY,
261 U.S. 86; OR THE TIME TO APPEAL HAD NOT EXPIRED, HUNTER V. WOOD, 209
U.S. 205; IN RE SAWYER, 124 U.S. 200; WO LEE V. HOPKINS, 118 U.S. 356,
DISCUSSED IN THE WRIT OF HABEAS CORPUS IN THE FEDERAL COURTS, SUPRA, AT
414, N. 60.  SEE ALSO APPLEYARD V. MASSACHUSETTS, 203 U.S. 222, 225
226; EX PARTE BRIDGES, 2 WOODS 428, 430, APPROVED IN EX PARTE ROYALL,
117 U.S. 241. 

IN HIS DISSENTING OPINION IN EX PARTE CRAIG, SUPRA NOTE 1, JUDGE
LEARNED HAND, REVIEWING THE AUTHORITIES, SAID:  "THE APPELLANT'S
ATTEMPT RIGIDLY TO CLASSIFY THESE EXCEPTIONS APPEARS TO ME MORE
DEFINITE THAN THE BOOKS WARRANT.  A SAFER RULE IS TO SAY SOMEWHAT
VAGUELY THAT THEY MUST BE OCCASIONS OF PRESSING NECESSITY."  282 F. AT
156. 

FN5  THE OPINION OF THE CIRCUIT COURT OF APPEALS IN THE KULICK CASE,
AFTER STATING THE SUMMARIZED EFFECT OF OUR DECISIONS AS QUOTED IN THE
TEXT ABOVE, SAID CONCERNING THIS CASE:  "THE OCCASION AT BAR IS SUCH;
CERTAINLY THE REASONS FOR ALLOWING IT ARE MORE COMPELLING THAN WERE
THOSE IN BOWEN V. JOHNSTON (SEE NOTES 3, 4, SUPRA), WHERE THERE MERELY
APPEARED 'TO BE UNCERTAINTY AND CONFUSION  ...  WHETHER OFFENSES
WITHIN' A NATIONAL PARK 'ARE TRIABLE IN THE STATE OR FEDERAL COURTS.' 
IT WOULD PASS ALL FAIR DEMANDS UPON KULICK'S DILIGENCE TO CONCLUDE HIM
BECAUSE OF HIS FAILURE TO APPEAL.  NOT ONLY HAD THERE NOT BEEN ANY
GLIMMER OF A POSITIVE CHANCE OF SUCCESS, BUT THERE HAD BEEN AN UNUSUAL
CONSENSUS OF JUDICIAL OPINION AGAINST IT IN THE LOWER COURTS. 
MOREOVER, ALTHOUGH A NUMBER OF THE DECISIONS COULD BE EXPLAINED UPON
THE GROUND THAT THOSE INDUCTED HAD NOT WHOLLY EXHAUSTED THEIR
ADMINISTRATIVE REMEDIES; IN A NUMBER OF OTHERS THEY HAD DONE SO; AND NO
DISTINCTION HAD BEEN ESTABLISHED BETWEEN THE TWO.  INDEED, IN UNITED
STATES V. FLAKOWICZ, SUPRA (146 F.2D 874), WHICH HAD BEEN ONE OF THESE,
THE SUPREME COURT DENIED CERTIORARI ONLY A FORTNIGHT BEFORE MAY 12TH,"
THE DATE OF KULICK'S CONVICTION.  157 F.2D AT 813-814.  SEE NOTE 9
INFRA. 

FN6  FALBO V. UNITED STATES, 320 U.S. 549.  THE OPINION, THOUGH
CONTAINING LANGUAGE EMPHASIZING THE FAILURE OF CONGRESS TO PROVIDE
EXPRESSLY FOR JUDICIAL REVIEW OF SELECTIVE SERVICE BOARDS'
CLASSIFICATIONS, EXPLICITLY POINTED OUT THAT "A BOARD ORDER TO REPORT
IS NO MORE THAN A NECESSARY INTERMEDIATE STEP IN A UNITED AND
CONTINUOUS PROCESS DESIGNED TO RAISE AN ARMY SPEEDILY AND EFFICIENTLY"
AND THAT, IF THERE WERE A CONSTITUTIONAL REQUIREMENT FOR JUDICIAL
REVIEW, "CONGRESS WAS NOT REQUIRED TO PROVIDE FOR JUDICIAL INTERVENTION
BEFORE FINAL ACCEPTANCE OF AN INDIVIDUAL FOR NATIONAL SERVICE."  PP.
553, 554.  THE OPINION ALSO STATED:  "SURELY IF CONGRESS HAD INTENDED
TO AUTHORIZE INTERFERENCE WITH THAT PROCESS BY INTERMEDIATE CHALLENGES
OF ORDERS TO REPORT, IT WOULD HAVE SAID SO."  P. 554. 

FN7  SEE NOTE 5 SUPRA, AND THE CASES CITED IN MR. JUSTICE
FRANKFURTER'S OPINION IN ESTEP V. UNITED STATES, 327 U.S. 114, 139. 

FN8  IN REFERENCE TO KULICK'S CASE THE CHANCE WAS PRACTICALLY NIL,
SINCE THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT PREVIOUSLY
HAD RULED THE QUESTION ADVERSELY TO THE VALIDITY OF THE DEFENSES IN
UNITED STATES V. FLAKOWICZ, 146 F.2D 874, AND CERTIORARI HAD BEEN
DENIED HERE.  325 U.S. 851.  SEE NOTE 5. 

SMITH V. UNITED STATES, 148 F.2D 288, AFTERWARDS REVERSED HERE, 327
U.S. 114, APPARENTLY WAS THE FIRST IN WHICH THE CIRCUIT COURT OF
APPEALS FOR THE FOURTH CIRCUIT DECIDED THE QUESTION.  THE DECISION WAS
RENDERED APRIL 4, 1945.  SUNAL WAS CONVICTED ON MARCH 22, 1945. 

FN9  ALTHOUGH DENIAL OF CERTIORARI IS NOT TO BE TAKEN AS EXPRESSION
OF OPINION IN ANY CASE, IT WOULD BE IDLE TO CLAIM THAT IT HAS NO ACTUAL
OR REASONABLE INFLUENCE UPON THE PRACTICAL JUDGMENT OF LAWYERS WHETHER
APPEAL SHOULD BE NOTED AND TAKEN UPON THE CHANCE THAT IN A CASE
SUBSTANTIALLY IDENTICAL THIS COURT'S DISCRETION WOULD BE EXERCISED, IN
THE ABSENCE OF CONFLICT, IN A CONTRARY MANNER AT THE STAGE OF
APPLICATION FOR CERTIORARI. 

FN10  UNDER THE RULE APPLIED IN THE DISTRICT COURTS AND THE CIRCUIT
COURTS OF APPEALS THE ONLY DEFENSES OPEN WOULD HAVE BEEN THAT THE
DEFENDANTS HAD NOT REFUSED TO TAKE THE OATHS.  NO DEFENSE RELATING TO
THE VALIDITY OF THE STATUTE, THE REGULATIONS, OR THEIR APPLICATION IN
THE PARTICULAR CASES WAS AVAILABLE. 

FN11  CF. YAKUS V. UNITED STATES, 321 U.S. 414, DISSENTING OPINION,
AT 460 FF. 

MR. JUSTICE MURPHY JOINS IN THIS DISSENT.  HE BELIEVES THAT TODAY'S
DECISION UNDULY NARROWS THE POINT AT WHICH DUE PROCESS MAY BE ACCORDED
THOSE ACCUSED OR CONVICTED OF VIOLATING THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940.  CF. HIS DISSENTING OPINION IN FALBO V. UNITED
STATES, 320 U.S. 549, 555, AND HIS CONCURRING OPINION IN ESTEP V.
UNITED STATES, 327 U.S. 114, 125. 
..END :






















SECURITIES COMM'N V. CHENERY CORP., 332 U.S. 194 


ARGUED DECEMBER 13, 16, 1946.  - DECIDED JUNE 23, 1947.  - 154 F.2D 6,
REVERSED. 


1.  IN APPROVING A PLAN FOR THE REORGANIZATION OF A HOLDING COMPANY
UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, THE SECURITIES
AND EXCHANGE COMMISSION REQUIRED THAT PREFERRED STOCK PURCHASED BY THE
MANAGEMENT WITHOUT FRAUD OR CONCEALMENT WHILE PLANS OF REORGANIZATION
WERE BEFORE THE COMMISSION SHOULD NOT BE CONVERTED INTO STOCK OF THE
REORGANIZED COMPANY, LIKE OTHER PREFERRED STOCK, BUT SHOULD BE
SURRENDERED AT COST PLUS INTEREST.  IN S.E.C. V. CHENERY CORP., 318
U.S. 80, THIS COURT HELD THAT THIS REQUIREMENT COULD NOT BE SUSTAINED
ON THE SOLE GROUND UPON WHICH IT WAS BASED BY THE COMMISSION - I.E.,
PRINCIPLES OF EQUITY JUDICIALLY ESTABLISHED.  ON REMAND, THE COMMISSION
RE-EXAMINED THE PROBLEM AND REACHED THE SAME RESULT, BUT BASED THIS
REQUIREMENT ON THE GROUND THAT TO PERMIT THE MANAGEMENT TO PROFIT FROM
PURCHASES OF STOCK MADE WHILE REORGANIZATION PROCEEDINGS WERE PENDING
WOULD BE INCONSISTENT WITH THE STANDARDS OF SECS. 7 AND 11 OF THE ACT. 
HELD:  THE NEW ORDER IS SUSTAINED.  PP. 196-199, 209. 

2.  THIS COURT'S EARLIER DECISION HELD ONLY THAT THE REQUIREMENT
COULD NOT BE SUPPORTED ON THE SOLE GROUND STATED BY THE COMMISSION IN
ITS FIRST ORDER; AND, ON THE REMAND FOR SUCH FURTHER PROCEEDINGS AS
MIGHT BE APPROPRIATE, THE COMMISSION WAS NOT PRECLUDED IN THE
PERFORMANCE OF ITS ADMINISTRATIVE FUNCTION FROM REACHING THE SAME
RESULT ON PROPER AND RELEVANT GROUNDS.  PP. 200-201. 

3.  THE COMMISSION'S ACTION WAS NOT PRECLUDED BY THE FACT THAT THE
COMMISSION HAD NOT ANTICIPATED THIS PROBLEM AND ADOPTED A GENERAL RULE
OR REGULATION GOVERNING MANAGEMENT TRADING DURING REORGANIZATION.  PP.
201-202. 

4.  THE CHOICE BETWEEN PROCEEDING BY GENERAL RULE OR BY AD HOC
DECISIONS IS ONE THAT LIES PRIMARILY IN THE INFORMED DISCRETION OF THE
ADMINISTRATIVE AGENCY.  PP. 202-203. 

5.  THAT AN AD HOC DECISION OF THE COMMISSION MIGHT HAVE A
RETROACTIVE EFFECT DOES NOT NECESSARILY RENDER IT INVALID.  P. 203. 

6.  THE SCOPE OF JUDICIAL REVIEW OF AN ADMINISTRATIVE DECISION IN
WHICH A NEW PRINCIPLE WAS ANNOUNCED IS NO DIFFERENT FROM THAT IN THE
CASE OF ORDINARY ADMINISTRATIVE ACTION.  P. 207. 

7.  THE JUDICIAL FUNCTION ON REVIEW OF AN ORDER OF THE COMMISSION IS
AT AN END WHEN IT BECOMES EVIDENT THAT THE COMMISSION'S ACTION IS BASED
UPON SUBSTANTIAL EVIDENCE AND IS CONSISTENT WITH THE AUTHORITY GRANTED
BY CONGRESS.  P. 207. 

8.  IN DETERMINING WHETHER TO APPROVE A PLAN OF REORGANIZATION UNDER
THE ACT, THE COMMISSION MAY PROPERLY CONSIDER THAT SOME ABUSES IN THE
FIELD OF CORPORATE REORGANIZATION MAY BE DEALT WITH EFFECTIVELY ONLY BY
PROHIBITIONS NOT CONCERNED WITH THE FAIRNESS OF A PARTICULAR
TRANSACTION.  PP. 207-208. 

9.  IN ITS INTERPRETATION AND APPLICATION OF THE "FAIR AND EQUITABLE"
RULE OF SEC. 11(E), AND OF THE STANDARD OF WHAT IS "DETRIMENTAL TO THE
PUBLIC INTEREST OR THE INTEREST OF INVESTORS OR CONSUMERS" UNDER SECS.
7(D)(6) AND 7(E), THE COMMISSION DID NOT ABUSE ITS DISCRETION IN THIS
CASE.  P. 208. 

10.  THERE WAS REASONABLE BASIS IN THIS CASE FOR THE CONCLUSION THAT
THE BENEFITS AND PROFITS ACCRUING TO THE MANAGEMENT FROM THE STOCK
PURCHASES SHOULD BE PROHIBITED, REGARDLESS OF THE GOOD FAITH INVOLVED. 
P. 208. 

11.  THE COMMISSION'S CONCLUSION IN THIS CASE IS THE PRODUCT OF
ADMINISTRATIVE EXPERIENCE, APPRECIATION OF THE COMPLEXITIES OF THE
PROBLEM, REALIZATION OF THE STATUTORY POLICIES, AND RESPONSIBLE
TREATMENT OF THE UNCONTESTED FACTS; AND CONSTITUTES AN ALLOWABLE
ADMINISTRATIVE JUDGMENT WHICH CAN NOT BE DISTURBED ON JUDICIAL REVIEW. 
P. 209. 

SECURITIES & EXCHANGE COMMISSION V. CHENERY CORPORATION ET AL. 

NO. 81.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA* . 

*TOGETHER WITH NO. 82, SECURITIES & EXCHANGE COMMISSION V. FEDERAL
WATER & GAS CORP., ALSO ON CERTIORARI TO THE SAME COURT. 

UPON REMAND TO THE SECURITIES AND EXCHANGE COMMISSION OF THE CASE
DECIDED BY THIS COURT IN S.E.C. V. CHENERY CORP., 318 U.S. 80, THE
COMMISSION DENIED AN APPLICATION FOR APPROVAL OF AN AMENDMENT OF THE
PLAN OF REORGANIZATION.  HOLDING COMPANY ACT RELEASE NO. 5584.  THE
COURT BELOW REVERSED.  154 F.2D 6.  THIS COURT GRANTED CERTIORARI.  328
U.S. 829.  REVERSED, P. 209. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE FOR THE SECOND TIME.  IN S.E.C. V. CHENERY CORP.,
318 U.S. 80, WE HELD THAT AN ORDER OF THE SECURITIES AND EXCHANGE
COMMISSION COULD NOT BE SUSTAINED ON THE GROUNDS UPON WHICH THAT AGENCY
ACTED.  WE THEREFORE DIRECTED THAT THE CASE BE REMANDED TO THE
COMMISSION FOR SUCH FURTHER PROCEEDINGS AS MIGHT BE APPROPRIATE.  ON
REMAND, THE COMMISSION REEXAMINED THE PROBLEM, RECAST ITS RATIONALE AND
REACHED THE SAME RESULT.  THE ISSUE NOW IS WHETHER THE COMMISSION'S
ACTION IS PROPER IN LIGHT OF THE PRINCIPLES ESTABLISHED IN OUR PRIOR
DECISION. 

WHEN THE CASE WAS FIRST HERE, WE EMPHASIZED A SIMPLE BUT FUNDAMENTAL
RULE OF ADMINISTRATIVE LAW.  THAT RULE IS TO THE EFFECT THAT A
REVIEWING COURT, IN DEALING WITH A DETERMINATION OR JUDGMENT WHICH AN
ADMINISTRATIVE AGENCY ALONE IS AUTHORIZED TO MAKE, MUST JUDGE THE
PROPRIETY OF SUCH ACTION SOLELY BY THE GROUNDS INVOKED BY THE AGENCY. 
IF THOSE GROUNDS ARE INADEQUATE OR IMPROPER, THE COURT IS POWERLESS TO
AFFIRM THE ADMINISTRATIVE ACTION BY SUBSTITUTING WHAT IT CONSIDERS TO
BE A MORE ADEQUATE OR PROPER BASIS.  TO DO SO WOULD PROPEL THE COURT
INTO THE DOMAIN WHICH CONGRESS HAS SET ASIDE EXCLUSIVELY FOR THE
ADMINISTRATIVE AGENCY. 

WE ALSO EMPHASIZED IN OUR PRIOR DECISION AN IMPORTANT COROLLARY OF
THE FOREGOING RULE.  IF THE ADMINISTRATIVE ACTION IS TO BE TESTED BY
THE BASIS UPON WHICH IT PURPORTS TO REST, THAT BASIS MUST BE SET FORTH
WITH SUCH CLARITY AS TO BE UNDERSTANDABLE.  IT WILL NOT DO FOR A COURT
TO BE COMPELLED TO GUESS AT THE THEORY UNDERLYING THE AGENCY'S ACTION;
NOR CAN A COURT BE EXPECTED TO CHISEL THAT WHICH MUST BE PRECISE FROM
WHAT THE AGENCY HAS LEFT VAGUE AND INDECISIVE.  IN OTHER WORDS, "WE
MUST KNOW 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, 511. 

APPLYING THIS RULE AND ITS COROLLARY, THE COURT WAS UNABLE TO SUSTAIN
THE COMMISSION'S ORIGINAL ACTION.  THE COMMISSION HAD BEEN DEALING WITH
THE REORGANIZATION OF THE FEDERAL WATER SERVICE CORPORATION (FEDERAL),
A HOLDING COMPANY REGISTERED UNDER THE PUBLIC UTILITY HOLDING COMPANY
ACT OF 1935, 49 STAT. 803.  DURING THE PERIOD WHEN SUCCESSIVE
REORGANIZATION PLANS PROPOSED BY THE MANAGEMENT WERE BEFORE THE
COMMISSION, THE OFFICERS, DIRECTORS AND CONTROLLING STOCKHOLDERS OF
FEDERAL PURCHASED A SUBSTANTIAL AMOUNT OF FEDERAL'S PREFERRED STOCK ON
THE OVER-THE-COUNTER MARKET.  UNDER THE FOURTH REORGANIZATION PLAN,
THIS PREFERRED STOCK WAS TO BE CONVERTED INTO COMMON STOCK OF A NEW
CORPORATION; ON THE BASIS OF THE PURCHASES OF PREFERRED STOCK, THE
MANAGEMENT WOULD HAVE RECEIVED MORE THAN 10% OF THIS NEW COMMON STOCK. 
IT WAS FRANKLY ADMITTED THAT THE MANAGEMENT'S PURPOSE IN BUYING THE
PREFERRED STOCK WAS TO PROTECT ITS INTEREST IN THE NEW COMPANY.  IT WAS
ALSO PLAIN THAT THERE WAS NO FRAUD OR LACK OF DISCLOSURE IN MAKING
THESE PURCHASES. 

BUT THE COMMISSION WOULD NOT APPROVE THE FOURTH PLAN SO LONG AS THE
PREFERRED STOCK PURCHASED BY THE MANAGEMENT WAS TO BE TREATED ON A
PARITY WITH THE OTHER PREFERRED STOCK.  IT FELT THAT THE OFFICERS AND
DIRECTORS OF A HOLDING COMPANY IN PROCESS OF REORGANIZATION UNDER THE
ACT WERE FIDUCIARIES AND WERE UNDER A DUTY NOT TO TRADE IN THE
SECURITIES OF THAT COMPANY DURING THE REORGANIZATION PERIOD.  8 S.E.C.
893, 915-921.  AND SO THE PLAN WAS AMENDED TO PROVIDE THAT THE
PREFERRED STOCK ACQUIRED BY THE MANAGEMENT, UNLIKE THAT HELD BY OTHERS,
WAS NOT TO BE CONVERTED INTO THE NEW COMMON STOCK; INSTEAD, IT WAS TO
BE SURRENDERED AT COST PLUS DIVIDENDS ACCUMULATED SINCE THE PURCHASE
DATES.  AS AMENDED, THE PLAN WAS APPROVED BY THE COMMISSION OVER THE
MANAGEMENT'S OBJECTIONS.  10 S.E.C. 200. 

THE COURT INTERPRETED THE COMMISSION'S ORDER APPROVING THIS AMENDED
PLAN AS GROUNDED SOLELY UPON JUDICIAL AUTHORITY.  THE COMMISSION
APPEARED TO HAVE TREATED THE PREFERRED STOCK ACQUIRED BY THE MANAGEMENT
IN ACCORDANCE WITH WHAT IT THOUGHT WERE STANDARDS THERETOFORE
RECOGNIZED BY COURTS.  IF IT INTENDED TO CREATE NEW STANDARDS GROWING
OUT OF ITS EXPERIENCE IN EFFECTUATING THE LEGISLATIVE POLICY, IT FAILED
TO EXPRESS ITSELF WITH SUFFICIENT CLARITY AND PRECISION TO BE SO
UNDERSTOOD.  HENCE THE ORDER WAS JUDGED BY THE ONLY STANDARDS CLEARLY
INVOKED BY THE COMMISSION.  ON THAT BASIS, THE ORDER COULD NOT STAND. 
THE OPINION POINTED OUT THAT COURTS DO NOT IMPOSE UPON OFFICERS AND
DIRECTORS OF A CORPORATION ANY FIDUCIARY DUTY TO ITS STOCKHOLDERS WHICH
PRECLUDES THEM, MERELY BECAUSE THEY ARE OFFICERS AND DIRECTORS, FROM
BUYING AND SELLING THE CORPORATION'S STOCK.  NOR WAS IT FELT THAT THE
CASES UPON WHICH THE COMMISSION RELIED ESTABLISHED ANY PRINCIPLES OF
LAW OR EQUITY WHICH IN THEMSELVES WOULD BE SUFFICIENT TO JUSTIFY THIS
ORDER. 

THE OPINION FURTHER NOTED THAT NEITHER CONGRESS NOR THE COMMISSION
HAD PROMULGATED ANY GENERAL RULE PROSCRIBING SUCH ACTION AS THE
PURCHASE OF PREFERRED STOCK BY FEDERAL'S MANAGEMENT.  AND THE ONLY
JUDGE-MADE RULE OF EQUITY WHICH MIGHT HAVE JUSTIFIED THE COMMISSION'S
ORDER RELATED TO FRAUD OR MISMANAGEMENT OF THE REORGANIZATION BY THE
OFFICERS AND DIRECTORS, MATTERS WHICH WERE ADMITTEDLY ABSENT IN THIS
SITUATION. 

AFTER THE CASE WAS REMANDED TO THE COMMISSION, FEDERAL WATER AND GAS
CORP. (FEDERAL WATER), THE SURVIVING CORPORATION UNDER THE
REORGANIZATION PLAN, MADE AN APPLICATION FOR APPROVAL OF AN AMENDMENT
TO THE PLAN TO PROVIDE FOR THE ISSUANCE OF NEW COMMON STOCK OF THE
REORGANIZED COMPANY.  THIS STOCK WAS TO BE DISTRIBUTED TO THE MEMBERS
OF FEDERAL'S MANAGEMENT ON THE BASIS OF THE SHARES OF THE OLD PREFERRED
STOCK WHICH THEY HAD ACQUIRED DURING THE PERIOD OF REORGANIZATION,
THEREBY PLACING THEM IN THE SAME POSITION AS THE PUBLIC HOLDERS OF THE
OLD PREFERRED STOCK.  THE INTERVENING MEMBERS OF FEDERAL'S MANAGEMENT
JOINED IN THIS REQUEST.  THE COMMISSION DENIED THE APPLICATION IN AN
ORDER ISSUED ON FEBRUARY 8, 1945.  HOLDING COMPANY ACT RELEASE NO.
5584.  THAT ORDER WAS REVERSED BY THE COURT OF APPEALS, 80 U.S. APP.
D.C. 365, 154 F.2D 6, WHICH FELT THAT OUR PRIOR DECISION PRECLUDED SUCH
ACTION BY THE COMMISSION. 

THE LATEST ORDER OF THE COMMISSION DEFINITELY AVOIDS THE FATAL ERROR
OF RELYING ON JUDICIAL PRECEDENTS WHICH DO NOT SUSTAIN IT.  THIS TIME,
AFTER A THOROUGH REEXAMINATION OF THE PROBLEM IN LIGHT OF THE PURPOSES
AND STANDARDS OF THE HOLDING COMPANY ACT, THE COMMISSION HAS CONCLUDED
THAT THE PROPOSED TRANSACTION IS INCONSISTENT WITH THE STANDARDS OF
SECS. 7 AND 11 OF THE ACT.  IT HAS DRAWN HEAVILY UPON ITS ACCUMULATED
EXPERIENCE IN DEALING WITH UTILITY REORGANIZATIONS.  AND IT HAS
EXPRESSED ITS REASONS WITH A CLARITY AND THOROUGHNESS THAT ADMIT OF NO
DOUBT AS TO THE UNDERLYING BASIS OF ITS ORDER. 

THE ARGUMENT IS PRESSED UPON US, HOWEVER, THAT THE COMMISSION WAS
FORECLOSED FROM TAKING SUCH A STEP FOLLOWING OUR PRIOR DECISION.  IT IS
SAID THAT, IN THE ABSENCE OF FINDINGS OF CONSCIOUS WRONGDOING ON THE
PART OF FEDERAL'S MANAGEMENT, THE COMMISSION COULD NOT DETERMINE BY AN
ORDER IN THIS PARTICULAR CASE THAT IT WAS INCONSISTENT WITH THE
STATUTORY STANDARDS TO PERMIT FEDERAL'S MANAGEMENT TO REALIZE A PROFIT
THROUGH THE REORGANIZATION PURCHASES.  ALL THAT IT COULD DO WAS TO
ENTER AN ORDER ALLOWING AN AMENDMENT TO THE PLAN SO THAT THE PROPOSED
TRANSACTION COULD BE CONSUMMATED.  UNDER THIS VIEW, THE COMMISSION
WOULD BE FREE ONLY TO PROMULGATE A GENERAL RULE OUTLAWING SUCH PROFITS
IN FUTURE UTILITY REORGANIZATIONS; BUT SUCH A RULE WOULD HAVE TO BE
PROSPECTIVE IN NATURE AND HAVE NO RETROACTIVE EFFECT UPON THE INSTANT
SITUATION. 

WE REJECT THIS CONTENTION, FOR IT GROWS OUT OF A MISAPPREHENSION OF
OUR PRIOR DECISION AND OF THE COMMISSION'S STATUTORY DUTIES.  WE HELD
NO MORE AND NO LESS THAN THAT THE COMMISSION'S FIRST ORDER WAS
UNSUPPORTABLE FOR THE REASONS SUPPLIED BY THAT AGENCY.  BUT WHEN THE
CASE LEFT THIS COURT, THE PROBLEM WHETHER FEDERAL'S MANAGEMENT SHOULD
BE TREATED EQUALLY WITH OTHER PREFERRED STOCKHOLDERS STILL LACKED A
FINAL AND COMPLETE ANSWER.  IT WAS CLEAR THAT THE COMMISSION COULD NOT
GIVE A NEGATIVE ANSWER BY RESORT TO PRIOR JUDICIAL DECLARATIONS.  AND
IT WAS ALSO CLEAR THAT THE COMMISSION WAS NOT BOUND BY SETTLED JUDICIAL
PRECEDENTS IN A SITUATION OF THIS NATURE.  318 U.S. AT 89.  STILL
UNSETTLED, HOWEVER, WAS THE ANSWER THE COMMISSION MIGHT GIVE WERE IT TO
BRING TO BEAR ON THE FACTS THE PROPER ADMINISTRATIVE AND STATUTORY
CONSIDERATIONS, A FUNCTION WHICH BELONGS EXCLUSIVELY TO THE COMMISSION
IN THE FIRST INSTANCE.  THE ADMINISTRATIVE PROCESS HAD TAKEN AN
ERRONEOUS RATHER THAN A FINAL TURN.  HENCE WE CAREFULLY REFRAINED FROM
EXPRESSING ANY VIEWS AS TO THE PROPRIETY OF AN ORDER ROOTED IN THE
PROPER AND RELEVANT CONSIDERATIONS.  SEE SIEGEL CO. V. FEDERAL TRADE
COMMISSION, 327 U.S. 608, 613-614. 

WHEN THE CASE WAS DIRECTED TO BE REMANDED TO THE COMMISSION FOR SUCH
FURTHER PROCEEDINGS AS MIGHT BE APPROPRIATE, IT WAS WITH THE THOUGHT
THAT THE COMMISSION WOULD GIVE FULL EFFECT TO ITS DUTIES IN HARMONY
WITH THE VIEWS WE HAD EXPRESSED.  FORD MOTOR CO. V. LABOR BOARD, 305
U.S. 364, 374; FEDERAL RADIO COMMISSION V. NELSON BROS. CO., 289 U.S.
266, 278.  THIS OBVIOUSLY MEANT SOMETHING MORE THAN THE ENTRY OF A
PERFUNCTORY ORDER GIVING PARITY TREATMENT TO THE MANAGEMENT HOLDINGS OF
PREFERRED STOCK.  THE FACT THAT THE COMMISSION HAD COMMITTED A LEGAL
ERROR IN ITS FIRST DISPOSITION OF THE CASE CERTAINLY GAVE FEDERAL'S
MANAGEMENT NO VESTED RIGHT TO RECEIVE THE BENEFITS OF SUCH AN ORDER. 
SEE FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE BROADCASTING CO.,
309 U.S. 134, 145.  AFTER THE REMAND WAS MADE, THEREFORE, THE
COMMISSION WAS BOUND TO DEAL WITH THE PROBLEM AFRESH, PERFORMING THE
FUNCTION DELEGATED TO IT BY CONGRESS.  IT WAS AGAIN CHARGED WITH THE
DUTY OF MEASURING THE PROPOSED TREATMENT OF THE MANAGEMENT'S PREFERRED
STOCK HOLDINGS BY RELEVANT AND PROPER STANDARDS.  ONLY IN THAT WAY
COULD THE LEGISLATIVE POLICIES EMBODIED IN THE ACT BE EFFECTUATED.  CF.
LABOR BOARD V. DONNELLY CO., 330 U.S. 219, 227-228. 

THE ABSENCE OF A GENERAL RULE OR REGULATION GOVERNING MANAGEMENT
TRADING DURING REORGANIZATION DID NOT AFFECT THE COMMISSION'S DUTIES IN
RELATION TO THE PARTICULAR PROPOSAL BEFORE IT.  THE COMMISSION WAS
ASKED TO GRANT OR DENY EFFECTIVENESS TO A PROPOSED AMENDMENT TO
FEDERAL'S REORGANIZATION PLAN WHEREBY THE MANAGEMENT WOULD BE ACCORDED
PARITY TREATMENT ON ITS HOLDINGS.  IT COULD DO THAT ONLY IN THE FORM OF
AN ORDER, ENTERED AFTER A DUE CONSIDERATION OF THE PARTICULAR FACTS IN
LIGHT OF THE RELEVANT AND PROPER STANDARDS.  THAT WAS TRUE REGARDLESS
OF WHETHER THOSE STANDARDS PREVIOUSLY HAD BEEN SPELLED OUT IN A GENERAL
RULE OR REGULATION.  INDEED, IF THE COMMISSION RIGHTLY FELT THAT THE
PROPOSED AMENDMENT WAS INCONSISTENT WITH THOSE STANDARDS, AN ORDER
GIVING EFFECT TO THE AMENDMENT MERELY BECAUSE THERE WAS NO GENERAL RULE
OR REGULATION COVERING THE MATTER WOULD BE UNJUSTIFIED. 

IT IS TRUE THAT OUR PRIOR DECISION EXPLICITLY RECOGNIZED THE
POSSIBILITY THAT THE COMMISSION MIGHT HAVE PROMULGATED A GENERAL RULE
DEALING WITH THIS PROBLEM UNDER ITS STATUTORY RULE-MAKING POWERS, IN
WHICH CASE THE ISSUE FOR OUR CONSIDERATION WOULD HAVE BEEN ENTIRELY
DIFFERENT FROM THAT WHICH DID CONFRONT US.  318 U.S. 92-93.  BUT WE DID
NOT MEAN TO IMPLY THEREBY THAT THE FAILURE OF THE COMMISSION TO
ANTICIPATE THIS PROBLEM AND TO PROMULGATE A GENERAL RULE WITHDREW ALL
POWER FROM THAT AGENCY TO PERFORM ITS STATUTORY DUTY IN THIS CASE.  TO
HOLD THAT THE COMMISSION HAD NO ALTERNATIVE IN THIS PROCEEDING BUT TO
APPROVE THE PROPOSED TRANSACTION, WHILE FORMULATING ANY GENERAL RULES
IT MIGHT DESIRE FOR USE IN FUTURE CASES OF THIS NATURE, WOULD BE TO
STULTIFY THE ADMINISTRATIVE PROCESS.  THAT WE REFUSE TO DO. 

SINCE THE COMMISSION, UNLIKE A COURT, DOES HAVE THE ABILITY TO MAKE
NEW LAW PROSPECTIVELY THROUGH THE EXERCISE OF ITS RULE-MAKING POWERS,
IT HAS LESS REASON TO RELY UPON AD HOC ADJUDICATION TO FORMULATE NEW
STANDARDS OF CONDUCT WITHIN THE FRAMEWORK OF THE HOLDING COMPANY ACT. 
THE FUNCTION OF FILLING IN THE INTERSTICES OF THE ACT SHOULD BE
PERFORMED, AS MUCH AS POSSIBLE, THROUGH THIS QUASI-LEGISLATIVE
PROMULGATION OF RULES TO BE APPLIED IN THE FUTURE.  BUT ANY RIGID
REQUIREMENT TO THAT EFFECT WOULD MAKE THE ADMINISTRATIVE PROCESS
INFLEXIBLE AND INCAPABLE OF DEALING WITH MANY OF THE SPECIALIZED
PROBLEMS WHICH ARISE.  SEE REPORT OF THE ATTORNEY GENERAL'S COMMITTEE
ON ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, S. DOC. NO. 8, 77TH
CONG., 1ST SESS., P. 29.  NOT EVERY PRINCIPLE ESSENTIAL TO THE
EFFECTIVE ADMINISTRATION OF A STATUTE CAN OR SHOULD BE CAST IMMEDIATELY
INTO THE MOLD OF A GENERAL RULE.  SOME PRINCIPLES MUST AWAIT THEIR OWN
DEVELOPMENT, WHILE OTHERS MUST BE ADJUSTED TO MEET PARTICULAR,
UNFORESEEABLE SITUATIONS.  IN PERFORMING ITS IMPORTANT FUNCTIONS IN
THESE RESPECTS, THEREFORE, AN ADMINISTRATIVE AGENCY MUST BE EQUIPPED TO
ACT EITHER BY GENERAL RULE OR BY INDIVIDUAL ORDER.  TO INSIST UPON ONE
FORM OF ACTION TO THE EXCLUSION OF THE OTHER IS TO EXALT FORM OVER
NECESSITY.    IN OTHER WORDS, PROBLEMS MAY ARISE IN A CASE WHICH THE
ADMINISTRATIVE AGENCY COULD NOT REASONABLY FORESEE, PROBLEMS WHICH MUST
BE SOLVED DESPITE THE ABSENCE OF A RELEVANT GENERAL RULE.  OR THE
AGENCY MAY NOT HAVE HAD SUFFICIENT EXPERIENCE WITH A PARTICULAR PROBLEM
TO WARRANT RIGIDIFYING ITS TENTATIVE JUDGMENT INTO A HARD AND FAST
RULE.  OR THE PROBLEM MAY BE SO SPECIALIZED AND VARYING IN NATURE AS TO
BE IMPOSSIBLE OF CAPTURE WITHIN THE BOUNDARIES OF A GENERAL RULE.  IN
THOSE SITUATIONS, THE AGENCY MUST RETAIN POWER TO DEAL WITH THE
PROBLEMS ON A CASE-TO-CASE BASIS IF THE ADMINISTRATIVE PROCESS IS TO BE
EFFECTIVE.  THERE IS THUS A VERY DEFINITE PLACE FOR THE CASE-BY-CASE
EVOLUTION OF STATUTORY STANDARDS.  AND THE CHOICE MADE BETWEEN
PROCEEDING BY GENERAL RULE OR BY INDIVIDUAL, AD HOC LITIGATION IS ONE
THAT LIES PRIMARILY IN THE INFORMED DISCRETION OF THE ADMINISTRATIVE
AGENCY.  SEE COLUMBIA BROADCASTING SYSTEM V. UNITED STATES, 316 U.S.
407, 421. 

HENCE WE REFUSE TO SAY THAT THE COMMISSION, WHICH HAD NOT PREVIOUSLY
BEEN CONFRONTED WITH THE PROBLEM OF MANAGEMENT TRADING DURING
REORGANIZATION, WAS FORBIDDEN FROM UTILIZING THIS PARTICULAR PROCEEDING
FOR ANNOUNCING AND APPLYING A NEW STANDARD OF CONDUCT.  CF. FEDERAL
TRADE COMMISSION V. KEPPEL & BRO., 291 U.S. 304.  THAT SUCH ACTION
MIGHT HAVE A RETROACTIVE EFFECT WAS NOT NECESSARILY FATAL TO ITS
VALIDITY.  EVERY CASE OF FIRST IMPRESSION HAS A RETROACTIVE EFFECT,
WHETHER THE NEW PRINCIPLE IS ANNOUNCED BY A COURT OR BY AN
ADMINISTRATIVE AGENCY.  BUT SUCH RETROACTIVITY MUST BE BALANCED AGAINST
THE MISCHIEF OF PRODUCING A RESULT WHICH IS CONTRARY TO A STATUTORY
DESIGN OR TO LEGAL AND EQUITABLE PRINCIPLES.  IF THAT MISCHIEF IS
GREATER THAN THE ILL EFFECT OF THE RETROACTIVE APPLICATION OF A NEW
STANDARD, IT IS NOT THE TYPE OF RETROACTIVITY WHICH IS CONDEMNED BY
LAW.  SEE ADDISON V. HOLLY HILL CO., 322 U.S. 607, 620. 

AND SO IN THIS CASE, THE FACT THAT THE COMMISSION'S ORDER MIGHT
RETROACTIVELY PREVENT FEDERAL'S MANAGEMENT FROM SECURING THE PROFITS
AND CONTROL WHICH WERE THE OBJECTS OF THE PREFERRED STOCK PURCHASES MAY
WELL BE OUTWEIGHED BY THE DANGERS INHERENT IN SUCH PURCHASES FROM THE
STATUTORY STANDPOINT.  IF THAT IS TRUE, THE ARGUMENT OF RETROACTIVITY
BECOMES NOTHING MORE THAN A CLAIM THAT THE COMMISSION LACKS POWER TO
ENFORCE THE STANDARDS OF THE ACT IN THIS PROCEEDING.  SUCH A CLAIM
DESERVES REJECTION. 

THE PROBLEM IN THIS CASE THUS RESOLVES ITSELF INTO A DETERMINATION OF
WHETHER THE COMMISSION'S ACTION IN DENYING EFFECTIVENESS TO THE
PROPOSED AMENDMENT TO THE FEDERAL REORGANIZATION PLAN CAN BE JUSTIFIED
ON THE BASIS UPON WHICH IT CLEARLY RESTS.  AS WE HAVE NOTED, THE
COMMISSION AVOIDED PLACING ITS SOLE RELIANCE ON INAPPLICABLE JUDICIAL
PRECEDENTS.  RATHER IT HAS DERIVED ITS CONCLUSIONS FROM THE PARTICULAR
FACTS IN THE CASE, ITS GENERAL EXPERIENCE IN REORGANIZATION MATTERS AND
ITS INFORMED VIEW OF STATUTORY REQUIREMENTS.  IT IS THOSE MATTERS WHICH
ARE THE GUIDE FOR OUR REVIEW. 

THE COMMISSION CONCLUDED THAT IT COULD NOT FIND THAT THE
REORGANIZATION PLAN, IF AMENDED AS PROPOSED, WOULD BE "FAIR AND
EQUITABLE TO THE PERSONS AFFECTED THEREBY" WITHIN THE MEANING OF SEC.
11(E) OF THE ACT, UNDER WHICH THE REORGANIZATION WAS TAKING PLACE.  ITS
VIEW WAS THAT THE AMENDED PLAN WOULD INVOLVE THE ISSUANCE OF SECURITIES
ON TERMS "DETRIMENTAL TO THE PUBLIC INTEREST OR THE INTEREST OF
INVESTORS" CONTRARY TO SECS. 7(D)(6) AND 7(E), AND WOULD RESULT IN AN
"UNFAIR OR INEQUITABLE DISTRIBUTION OF VOTING POWER" AMONG THE FEDERAL
SECURITY HOLDERS WITHIN THE MEANING OF SEC. 7(E).  IT WAS LED TO THIS
RESULT "NOT BY PROOF THAT THE INTERVENERS (FEDERAL'S MANAGEMENT)
COMMITTED ACTS OF CONSCIOUS WRONGDOING BUT BY THE CHARACTER OF THE
CONFLICTING INTERESTS CREATED BY THE INTERVENERS' PROGRAM OF STOCK
PURCHASES CARRIED OUT WHILE PLANS FOR REORGANIZATION WERE UNDER
CONSIDERATION." 

THE COMMISSION NOTED THAT FEDERAL'S MANAGEMENT CONTROLLED A LARGE
MULTI-STATE UTILITY SYSTEM AND THAT ITS INFLUENCE PERMEATED DOWN TO THE
LOWEST TIER OF OPERATING COMPANIES.  THE FINANCIAL, OPERATIONAL AND
ACCOUNTING POLICIES OF THE PARENT AND ITS SUBSIDIARIES WERE THEREFORE
UNDER THE MANAGEMENT'S STRICT CONTROL.  THE BROAD RANGE OF BUSINESS
JUDGMENTS VESTED IN FEDERAL'S MANAGEMENT MULTIPLIED OPPORTUNITIES FOR
AFFECTING THE MARKET PRICE OF FEDERAL'S OUTSTANDING SECURITIES AND MADE
THE EXERCISE OF JUDGMENT ON ANY MATTER A SUBJECT OF GREATEST
SIGNIFICANCE TO INVESTORS.  ADDED TO THESE NORMAL MANAGERIAL POWERS,
THE COMMISSION POINTED OUT THAT A HOLDING COMPANY MANAGEMENT OBTAINS
SPECIAL POWERS IN THE COURSE OF A VOLUNTARY REORGANIZATION UNDER SEC.
11(E) OF THE HOLDING COMPANY ACT.  THE MANAGEMENT REPRESENTS THE
STOCKHOLDERS IN SUCH A REORGANIZATION, INITIATES THE PROCEEDING, DRAWS
UP AND FILES THE PLAN, AND CAN FILE AMENDMENTS THERETO AT ANY TIME. 
THESE ADDITIONAL POWERS MAY INTRODUCE CONFLICTS BETWEEN THE
MANAGEMENT'S NORMAL INTERESTS AND ITS RESPONSIBILITIES TO THE VARIOUS
CLASSES OF STOCKHOLDERS WHICH IT REPRESENTS IN THE REORGANIZATION. 
MOREOVER, BECAUSE OF ITS REPRESENTATIVE STATUS, THE MANAGEMENT HAS
SPECIAL OPPORTUNITIES TO OBTAIN ADVANCE INFORMATION OF THE ATTITUDE OF
THE COMMISSION. 

DRAWING UPON ITS EXPERIENCE, THE COMMISSION INDICATED THAT ALL THESE
NORMAL AND SPECIAL POWERS OF THE HOLDING COMPANY MANAGEMENT DURING THE
COURSE OF A SEC. 11(E) REORGANIZATION PLACED IN THE MANAGEMENT'S
COMMAND "A FORMIDABLE BATTERY OF DEVICES THAT WOULD ENABLE IT, IF IT
SHOULD CHOOSE TO USE THEM SELFISHLY, TO AFFECT IN MATERIAL DEGREE THE
ULTIMATE ALLOCATION OF NEW SECURITIES AMONG THE VARIOUS EXISTING
CLASSES, TO INFLUENCE THE MARKET FOR ITS OWN GAIN, AND TO MANIPULATE OR
OBSTRUCT THE REORGANIZATION REQUIRED BY THE MANDATE OF THE STATUTE." 
IN THAT SETTING, THE COMMISSION FELT THAT A MANAGEMENT PROGRAM OF STOCK
PURCHASE WOULD GIVE RISE TO THE TEMPTATION AND THE OPPORTUNITY TO SHAPE
THE REORGANIZATION PROCEEDING SO AS TO ENCOURAGE PUBLIC SELLING ON THE
MARKET AT LOW PRICES.  NO MANAGEMENT COULD ENGAGE IN SUCH A PROGRAM
WITHOUT RAISING SERIOUS QUESTIONS AS TO WHETHER ITS PERSONAL INTERESTS
HAD NOT OPPOSED ITS DUTIES "TO EXERCISE DISINTERESTED JUDGMENT IN
MATTERS PERTAINING TO SUBSIDIARIES' ACCOUNTING, BUDGETARY AND DIVIDEND
POLICIES, TO PRESENT PUBLICLY AN UNPREJUDICED FINANCIAL PICTURE OF THE
ENTERPRISE, AND TO EFFECTUATE A FAIR AND FEASIBLE PLAN EXPEDITIOUSLY." 

THE COMMISSION FURTHER FELT THAT ITS ANSWER SHOULD BE THE SAME EVEN
WHERE PROOF OF INTENTIONAL WRONGDOING ON THE MANAGEMENT'S PART IS
LACKING.  ASSUMING A CONFLICT OF INTERESTS, THE COMMISSION THOUGHT THAT
THE ABSENCE OF ACTUAL MISCONDUCT IS IMMATERIAL; INJURY TO THE PUBLIC
INVESTORS AND TO THE CORPORATION MAY RESULT JUST AS READILY. 
"QUESTIONABLE TRANSACTIONS MAY BE EXPLAINED AWAY, AND AN ABUSE OF
INVESTORS AND THE ADMINISTRATIVE PROCESS MAY BE PERPETRATED WITHOUT
EVIL INTENT, YET THE INJURY WILL REMAIN."  MOREOVER, THE COMMISSION WAS
OF THE VIEW THAT THE DELAYS AND THE DIFFICULTIES INVOLVED IN PROBING
THE MENTAL PROCESSES AND PERSONAL INTEGRITY OF CORPORATE OFFICIALS DO
NOT WARRANT ANY DISTINCTION ON THE BASIS OF EVIL INTENT, THE PLAIN FACT
BEING "THAT AN ABSENCE OF UNFAIRNESS OR DETRIMENT IN CASES OF THIS SORT
WOULD BE PRACTICALLY IMPOSSIBLE TO ESTABLISH BY PROOF." 

TURNING TO THE FACTS IN THIS CASE, THE COMMISSION NOTED THE SALIENT
FACT THAT THE PRIMARY OBJECT OF FEDERAL'S MANAGEMENT IN BUYING THE
PREFERRED STOCK WAS ADMITTEDLY TO OBTAIN THE VOTING POWER THAT WAS
ACCRUING TO THAT STOCK THROUGH THE REORGANIZATION AND TO PROFIT FROM
THE INVESTMENT THEREIN.  THAT STOCK HAD BEEN PURCHASED IN THE MARKET AT
PRICES THAT WERE DEPRESSED IN RELATION TO WHAT THE MANAGEMENT
ANTICIPATED WOULD BE, AND WHAT IN FACT WAS, THE EARNING AND ASSET VALUE
OF ITS REORGANIZATION EQUIVALENT.  THE COMMISSION ADMITTED THAT THE
GOOD FAITH AND PERSONAL INTEGRITY OF THIS MANAGEMENT WERE NOT IN
QUESTION; BUT AS TO THE MANAGEMENT'S JUSTIFICATION OF ITS MOTIVES, THE
COMMISSION CONCLUDED THAT IT WAS MERELY TRYING TO "DENY THAT THEY MADE
SELFISH USE OF THEIR POWERS DURING THE PERIOD WHEN THEIR CONFLICT OF
INTEREST, VIS-A-VIS PUBLIC INVESTORS, WAS IN EXISTENCE OWING TO THEIR
PURCHASE PROGRAM."  FEDERAL'S MANAGEMENT HAD THUS PLACED ITSELF IN A
POSITION WHERE IT WAS "PECULIARLY SUSCEPTIBLE TO TEMPTATION TO CONDUCT
THE REORGANIZATION FOR PERSONAL GAIN RATHER THAN THE PUBLIC GOOD" AND
WHERE ITS DESIRE TO MAKE ADVANTAGEOUS PURCHASES OF STOCK COULD HAVE AN
IMPORTANT INFLUENCE, EVEN THOUGH SUBCONSCIOUSLY, UPON MANY OF THE
DECISIONS TO BE MADE IN THE COURSE OF THE REORGANIZATION.  ACCORDINGLY,
THE COMMISSION FELT THAT ALL OF ITS GENERAL CONSIDERATIONS OF THE
PROBLEM WERE APPLICABLE TO THIS CASE. 

THE SCOPE OF OUR REVIEW OF AN ADMINISTRATIVE ORDER WHEREIN A NEW
PRINCIPLE IS ANNOUNCED AND APPLIED IS NO DIFFERENT FROM THAT WHICH
PERTAINS TO ORDINARY ADMINISTRATIVE ACTION.  THE WISDOM OF THE
PRINCIPLE ADOPTED IS NONE OF OUR CONCERN.  SEE BOARD OF TRADE V. UNITED
STATES, 314 U.S. 534, 548.  OUR DUTY IS AT AN END WHEN IT BECOMES
EVIDENT THAT THE COMMISSION'S ACTION IS BASED UPON SUBSTANTIAL EVIDENCE
AND IS CONSISTENT WITH THE AUTHORITY GRANTED BY CONGRESS.  SEE NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 224. 

WE ARE UNABLE TO SAY IN THIS CASE THAT THE COMMISSION ERRED IN
REACHING THE RESULT IT DID.  THE FACTS BEING UNDISPUTED, WE ARE FREE TO
DISTURB THE COMMISSION'S CONCLUSION ONLY IF IT LACKS ANY RATIONAL AND
STATUTORY FOUNDATION.  IN THAT CONNECTION, THE COMMISSION HAS MADE A
THOROUGH EXAMINATION OF THE PROBLEM, UTILIZING STATUTORY STANDARDS AND
ITS OWN ACCUMULATED EXPERIENCE WITH REORGANIZATION MATTERS.  IN
ESSENCE, IT HAS MADE WHAT WE INDICATED IN OUR PRIOR OPINION WOULD BE AN
INFORMED, EXPERT JUDGMENT ON THE PROBLEM.  IT HAS TAKEN INTO ACCOUNT
"THOSE MORE SUBTLE FACTORS IN THE MARKETING OF UTILITY COMPANY
SECURITIES THAT GAVE RISE TO THE VERY GRAVE EVILS WHICH THE PUBLIC
UTILITY HOLDING (COMPANY) ACT OF 1935 WAS DESIGNED TO CORRECT" AND HAS
RELIED UPON THE FACT THAT "ABUSE OF CORPORATE POSITION, INFLUENCE, AND
ACCESS TO INFORMATION MAY RAISE QUESTIONS SO SUBTLE THAT THE LAW CAN
DEAL WITH THEM EFFECTIVELY ONLY BY PROHIBITIONS NOT CONCERNED WITH THE
FAIRNESS OF A PARTICULAR TRANSACTION."  318 U.S. AT 92. 

SUCH FACTORS MAY PROPERLY BE CONSIDERED BY THE COMMISSION IN
DETERMINING WHETHER TO APPROVE A PLAN OF REORGANIZATION OF A UTILITY
HOLDING COMPANY, OR AN AMENDMENT TO SUCH A PLAN.  THE "FAIR AND
EQUITABLE" RULE OF SEC. 11(E) AND THE STANDARD OF WHAT IS "DETRIMENTAL
TO THE PUBLIC INTEREST OR THE INTEREST OF INVESTORS OR CONSUMERS" UNDER
SEC. 7(D)(6) AND SEC. 7(E) WERE INSERTED BY THE FRAMERS OF THE ACT IN
ORDER THAT THE COMMISSION MIGHT HAVE BROAD POWERS TO PROTECT THE
VARIOUS INTERESTS AT STAKE.  318 U.S. AT 90-91.  THE APPLICATION OF
THOSE CRITERIA, WHETHER IN THE FORM OF A PARTICULAR ORDER OR A GENERAL
REGULATION, NECESSARILY REQUIRES THE USE OF INFORMED DISCRETION BY THE
COMMISSION.  THE VERY BREADTH OF THE STATUTORY LANGUAGE PRECLUDES A
REVERSAL OF THE COMMISSION'S JUDGMENT SAVE WHERE IT HAS PLAINLY ABUSED
ITS DISCRETION IN THESE MATTERS.  SEE UNITED STATES V. LOWDEN, 308 U.S.
225; I.C.C. V. RAILWAY LABOR ASSN., 315 U.S. 373.  SUCH AN ABUSE IS NOT
PRESENT IN THIS CASE. 

THE PURCHASE BY A HOLDING COMPANY MANAGEMENT OF THAT COMPANY'S
SECURITIES DURING THE COURSE OF A REORGANIZATION MAY WELL BE THOUGHT TO
BE SO FRAUGHT WITH DANGER AS TO WARRANT A DENIAL OF THE BENEFITS AND
PROFITS ACCRUING TO THE MANAGEMENT.  THE POSSIBILITY THAT SUCH A STOCK
PURCHASE PROGRAM WILL RESULT IN DETRIMENT TO THE PUBLIC INVESTORS IS
NOT A FANCIFUL ONE.  THE INFLUENCE THAT PROGRAM MAY HAVE UPON THE
IMPORTANT DECISIONS TO BE MADE BY THE MANAGEMENT DURING REORGANIZATION
IS NOT INCONSEQUENTIAL.  SINCE THE OFFICERS AND DIRECTORS OCCUPY
FIDUCIARY POSITIONS DURING THIS PERIOD, THEIR ACTIONS ARE TO BE HELD TO
A HIGHER STANDARD THAN THAT IMPOSED UPON THE GENERAL INVESTING PUBLIC. 
THERE IS THUS A REASONABLE BASIS FOR A JUDGMENT THAT THE BENEFITS AND
PROFITS ACCRUING TO THE MANAGEMENT FROM THE STOCK PURCHASES SHOULD BE
PROHIBITED, REGARDLESS OF THE GOOD FAITH INVOLVED.  AND IT IS A
JUDGMENT THAT CAN JUSTIFIABLY BE REACHED IN TERMS OF FAIRNESS AND
EQUITABLENESS, TO THE END THAT THE INTERESTS OF THE PUBLIC, THE
INVESTORS AND THE CONSUMERS MIGHT BE PROTECTED.  BUT IT IS A JUDGMENT
BASED UPON PUBLIC POLICY, A JUDGMENT WHICH CONGRESS HAS INDICATED IS OF
THE TYPE FOR THE COMMISSION TO MAKE. 

THE COMMISSION'S CONCLUSION HERE RESTS SQUARELY IN THAT AREA WHERE
ADMINISTRATIVE JUDGMENTS ARE ENTITLED TO THE GREATEST AMOUNT OF WEIGHT
BY APPELLATE COURTS.  IT IS THE PRODUCT OF ADMINISTRATIVE EXPERIENCE,
APPRECIATION OF THE COMPLEXITIES OF THE PROBLEM, REALIZATION OF THE
STATUTORY POLICIES, AND RESPONSIBLE TREATMENT OF THE UNCONTESTED
FACTS.  IT IS THE TYPE OF JUDGMENT WHICH ADMINISTRATIVE AGENCIES ARE
BEST EQUIPPED TO MAKE AND WHICH JUSTIFIES THE USE OF THE ADMINISTRATIVE
PROCESS.  SEE REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793,
800.  WHETHER WE AGREE OR DISAGREE WITH THE RESULT REACHED, IT IS AN
ALLOWABLE JUDGMENT WHICH WE CANNOT DISTURB.  REVERSED. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES.    MR. JUSTICE FRANKFURTER
AND MR. JUSTICE JACKSON DISSENT, BUT THERE IS NOT NOW OPPORTUNITY FOR A
RESPONSE ADEQUATE TO THE ISSUES RAISED BY THE COURT'S OPINION.  THESE
CONCERN THE RULE OF LAW IN ITS APPLICATION TO THE ADMINISTRATIVE
PROCESS AND THE FUNCTION OF THIS COURT IN REVIEWING ADMINISTRATIVE
ACTION.  ACCORDINGLY, THE DETAILED GROUNDS FOR DISSENT WILL BE FILED IN
DUE COURSE. 

MR. JUSTICE JACKSON, DISSENTING* . 

*FILED OCTOBER 6, 1947. 

THE COURT BY THIS PRESENT DECISION SUSTAINS THE IDENTICAL
ADMINISTRATIVE ORDER WHICH ONLY RECENTLY IT HELD INVALID.  S.E.C. V.
CHENERY CORP., 318 U.S. 80.  AS THE COURT CORRECTLY NOTES, THE
COMMISSION HAS ONLY "RECAST ITS RATIONALE AND REACHED THE SAME
RESULT."  (PAR. 1.)  FN1  THERE BEING NO CHANGE IN THE ORDER, NO
ADDITIONAL EVIDENCE IN THE RECORD AND NO AMENDMENT OF RELEVANT
LEGISLATION, IT IS CLEAR THAT THERE HAS BEEN A SHIFT IN ATTITUDE
BETWEEN THAT OF THE CONTROLLING MEMBERSHIP OF THE COURT WHEN THE CASE
WAS FIRST HERE AND THAT OF THOSE WHO HAVE THE POWER OF DECISION ON THIS
SECOND REVIEW. 

I FEEL CONSTRAINED TO DISAGREE WITH THE REASONING OFFERED TO
RATIONALIZE THIS SHIFT.  IT MAKES JUDICIAL REVIEW OF ADMINISTRATIVE
ORDERS A HOPELESS FORMALITY FOR THE LITIGANT, EVEN WHERE GRANTED TO HIM
BY CONGRESS.  IT REDUCES THE JUDICIAL PROCESS IN SUCH CASES TO A MERE
FEINT.  WHILE THE OPINION DOES NOT HAVE THE ADHERENCE OF A MAJORITY OF
THE FULL COURT, IF ITS PRONOUNCEMENTS SHOULD BECOME GOVERNING
PRINCIPLES THEY WOULD, IN PRACTICE, PUT MOST ADMINISTRATIVE ORDERS OVER
AND ABOVE THE LAW. 

                   I. 

THE ESSENTIAL FACTS ARE FEW AND ARE NOT IN DISPUTE.  FN2  THIS
CORPORATION FILED WITH THE SECURITIES AND EXCHANGE COMMISSION A
VOLUNTARY PLAN OF REORGANIZATION.  WHILE THE REORGANIZATION PROCEEDINGS
WERE PENDING SIXTEEN OFFICERS AND DIRECTORS BOUGHT ON THE OPEN MARKET
ABOUT 7 1/2% OF THE CORPORATION'S PREFERRED STOCK.  BOTH THE COMMISSION
AND THE COURT ADMIT THAT THESE PURCHASES WERE NOT FORBIDDEN BY ANY LAW,
JUDICIAL PRECEDENT, REGULATION OR RULE OF THE COMMISSION. 
NEVERTHELESS, THE COMMISSION HAS ORDERED THESE INDIVIDUALS TO SURRENDER
THEIR SHARES TO THE CORPORATION AT COST, PLUS 4% INTEREST, AND THE
COURT NOW APPROVES THAT ORDER. 

IT IS HELPFUL, BEFORE CONSIDERING WHETHER THIS ORDER IS AUTHORIZED BY
LAW, TO REFLECT ON WHAT IT IS AND WHAT IT IS NOT.  IT IS NOT
CONCEIVABLY A DISCHARGE OF THE COMMISSION'S DUTY TO DETERMINE WHETHER A
PROPOSED PLAN OF REORGANIZATION WOULD BE "FAIR AND EQUITABLE."  IT HAS
NOTHING TO DO WITH THE CORPORATE STRUCTURE, OR THE CLASSES AND AMOUNTS
OF STOCK, OR VOTING RIGHTS OR DIVIDEND PREFERENCES.  IT DOES NOT
REMOTELY AFFECT THE IMPERSONAL FINANCIAL OR LEGAL FACTORS OF THE PLAN. 
IT IS A PERSONAL DEPRIVATION DENYING PARTICULAR PERSONS THE RIGHT TO
CONTINUE TO OWN THEIR STOCK AND TO EXERCISE ITS PRIVILEGES.  OTHER
PERSONS WHO BOUGHT AT THE SAME TIME AND PRICE IN THE OPEN MARKET WOULD
BE ALLOWED TO KEEP AND CONVERT THEIR STOCK.  THUS, THE ORDER IS IN NO
SENSE AN EXERCISE OF THE FUNCTION OF CONTROL OVER THE TERMS AND
RELATIONS OF THE CORPORATE SECURITIES. 

NEITHER IS THE ORDER ONE MERELY TO REGULATE THE FUTURE USE OF
PROPERTY.  IT LITERALLY TAKES VALUABLE PROPERTY AWAY FROM ITS LAWFUL
OWNERS FOR THE BENEFIT OF OTHER PRIVATE PARTIES WITHOUT FULL
COMPENSATION AND THE COURT EXPRESSLY APPROVES THE TAKING.  IT SAYS THAT
THE STOCK OWNED BY THESE PERSONS IS DENIED CONVERSION ALONG WITH
SIMILAR STOCK OWNED BY OTHERS; "INSTEAD, IT WAS TO BE SURRENDERED AT
COST PLUS DIVIDENDS ACCUMULATED SINCE THE PURCHASE DATES."  (PAR. 5.) 
IT SHOULD BE NOTED THAT THIS FORMULA WAS SUBSEQUENTLY ALTERED TO READ
"COST PLUS 4% INTEREST."  THAT THIS BASIS WAS LESS THAN ITS VALUE IS
RECOGNIZED, FOR THE COURT SAYS "THAT STOCK HAD BEEN PURCHASED IN THE
MARKET AT PRICES THAT WERE DEPRESSED IN RELATION TO WHAT THE MANAGEMENT
ANTICIPATED WOULD BE, AND WHAT IN FACT WAS, THE EARNING AND ASSET VALUE
OF ITS REORGANIZATION EQUIVALENT."  (PAR. 24.)  ADMITTEDLY, THE VALUE
ABOVE COST, AND INTEREST ON IT, SIMPLY IS TAKEN FROM THE OWNERS,
WITHOUT COMPENSATION.  NO SUCH POWER HAS EVER BEEN CONFIRMED IN ANY
ADMINISTRATIVE BODY. 

IT SHOULD ALSO BE NOTED THAT NEITHER THE COURT NOR THE COMMISSION
PURPORTS TO ADJUDGE A FORFEITURE OF THIS PROPERTY AS A CONSEQUENCE OF
SHARP DEALING OR BREACH OF TRUST.  THE COURT SAYS, "THE COMMISSION
ADMITTED THAT THE GOOD FAITH AND PERSONAL INTEGRITY OF THIS MANAGEMENT
WERE NOT IN QUESTION; ...  "  (PAR. 24.)  AND AGAIN, "IT WAS FRANKLY
ADMITTED THAT THE MANAGEMENT'S PURPOSE IN BUYING THE PREFERRED STOCK
WAS TO PROTECT ITS INTEREST IN THE NEW COMPANY.  IT WAS ALSO PLAIN THAT
THERE WAS NO FRAUD OR LACK OF DISCLOSURE IN MAKING THESE PURCHASES." 
(PAR. 4.) 

                                 II. 

THE REVERSAL OF THE POSITION OF THIS COURT IS DUE TO A FUNDAMENTAL
CHANGE IN PREVAILING PHILOSOPHY.  THE BASIC ASSUMPTION OF THE EARLIER
OPINION AS THEREIN STATED WAS, "BUT BEFORE TRANSACTIONS OTHERWISE LEGAL
CAN BE OUTLAWED OR DENIED THEIR USUAL BUSINESS CONSEQUENCES, THEY MUST
FALL UNDER THE BAN OF SOME STANDARDS OF CONDUCT PRESCRIBED BY AN AGENCY
OF GOVERNMENT AUTHORIZED TO PRESCRIBE SUCH STANDARDS  ...  "  S.E.C. V.
CHENERY CORP., 318 U.S. 80, 92-93.  THE BASIC ASSUMPTION OF THE PRESENT
OPINION IS STATED THUS:  "THE ABSENCE OF A GENERAL RULE OR REGULATION
GOVERNING MANAGEMENT TRADING DURING REORGANIZATION DID NOT AFFECT THE
COMMISSION'S DUTIES IN RELATION TO THE PARTICULAR PROPOSAL BEFORE IT." 
(PAR. 13.)  THIS PUTS IN JUXTAPOSITION THE TWO CONFLICTING PHILOSOPHIES
WHICH PRODUCE OPPOSITE RESULTS IN THE SAME CASE AND ON THE SAME FACTS. 
THE DIFFERENCE BETWEEN THE FIRST AND THE LATEST DECISION OF THE COURT
IS THUS SIMPLY THE DIFFERENCE BETWEEN HOLDING THAT ADMINISTRATIVE
ORDERS MUST HAVE A BASIS IN LAW AND A HOLDING THAT ABSENCE OF A LEGAL
BASIS IS NO GROUND ON WHICH COURTS MAY ANNUL THEM. 

AS THERE ADMITTEDLY IS NO LAW OR REGULATION TO SUPPORT THIS ORDER, WE
PERUSE THE COURT'S OPINION DILIGENTLY TO FIND ON WHAT GROUNDS IT IS NOW
HELD THAT THE COURT OF APPEALS, ON PAIN OF BEING REVERSED FOR ERROR,
WAS REQUIRED TO STAMP THIS ORDER WITH ITS APPROVAL.  WE FIND BUT ONE. 
THAT IS THE PRINCIPLE OF JUDICIAL DEFERENCE TO ADMINISTRATIVE
EXPERIENCE.  THAT ARGUMENT IS FIVE TIMES STRESSED IN AS MANY DIFFERENT
CONTEXTS, AND I QUOTE JUST ENOUGH TO IDENTIFY THE INSTANCES:  "THE
COMMISSION," IT SAYS, "HAS DRAWN HEAVILY UPON ITS ACCUMULATED
EXPERIENCE IN DEALING WITH UTILITY REORGANIZATIONS."  (PAR. 9.) 
"RATHER IT HAS DERIVED ITS CONCLUSIONS FROM THE PARTICULAR FACTS IN THE
CASE, ITS GENERAL EXPERIENCE IN REORGANIZATION MATTERS AND ITS INFORMED
VIEW OF STATUTORY REQUIREMENTS."  (PAR. 19.)  "DRAWING UPON ITS
EXPERIENCE, THE COMMISSION INDICATED  ...  ," ETC. (PAR. 22.)  "  ...
THE COMMISSION HAS MADE A THOROUGH EXAMINATION OF THE PROBLEM,
UTILIZING STATUTORY STANDARDS AND ITS OWN ACCUMULATED EXPERIENCE WITH
REORGANIZATION MATTERS."  (PAR. 26.)  AND FINALLY, OF THE ORDER THE
COURT SAYS, "IT IS THE PRODUCT OF ADMINISTRATIVE EXPERIENCE," ETC.
(PAR. 29.) 

WHAT ARE WE TO MAKE OF THIS REITERATED DEFERENCE TO "ADMINISTRATIVE
EXPERIENCE" WHEN IN ANOTHER CONTEXT THE COURT SAYS, "HENCE, WE REFUSE
TO SAY THAT THE COMMISSION, WHICH HAD NOT PREVIOUSLY BEEN CONFRONTED
WITH THE PROBLEM OF MANAGEMENT TRADING DURING REORGANIZATION, WAS
FORBIDDEN FROM UTILIZING THIS PARTICULAR PROCEEDING FOR ANNOUNCING AND
APPLYING A NEW STANDARD OF CONDUCT."? (PAR. 17.) 

THE COURT'S REASONING ADDS UP TO THIS: THE COMMISSION MUST BE
SUSTAINED BECAUSE OF ITS ACCUMULATED EXPERIENCE IN SOLVING A PROBLEM
WITH WHICH IT HAD NEVER BEFORE BEEN CONFRONTED. 

OF COURSE, THUS TO UPHOLD THE COMMISSION BY PROFESSING TO FIND THAT
IT HAS ENUNCIATED A "NEW STANDARD OF CONDUCT" BRINGS THE COURT SQUARELY
AGAINST THE INVALIDITY OF RETROACTIVE LAW-MAKING.  BUT THE COURT DOES
NOT FALTER.  "THAT SUCH ACTION MIGHT HAVE A RETROACTIVE EFFECT WAS NOT
NECESSARILY FATAL TO ITS VALIDITY."  (PAR. 17.)  "BUT SUCH
RETROACTIVITY MUST BE BALANCED AGAINST THE MISCHIEF OF PRODUCING A
RESULT WHICH IS CONTRARY TO A STATUTORY DESIGN OR TO LEGAL AND
EQUITABLE PRINCIPLES."  (PAR. 17.)  OF COURSE, IF WHAT THESE PARTIES
DID REALLY WAS CONDEMNED BY "STATUTORY DESIGN" OR "LEGAL AND EQUITABLE
PRINCIPLES," IT COULD BE STOPPED WITHOUT RESORT TO A NEW RULE AND THERE
WOULD BE NO RETROACTIVITY TO CONDONE.  BUT IF IT HAD BEEN THE COURT'S
VIEW THAT SOME LAW ALREADY PROHIBITED THE PURCHASES, IT WOULD HARDLY
HAVE BEEN NECESSARY THREE SENTENCES EARLIER TO HOLD THAT THE COMMISSION
WAS NOT PROHIBITED "FROM UTILIZING THIS PARTICULAR PROCEEDING FOR
ANNOUNCING AND APPLYING A NEW STANDARD OF CONDUCT."  (PAR. 17.) 

I GIVE UP.  NOW I REALIZE FULLY WHAT MARK TWAIN MEANT WHEN HE SAID,
"THE MORE YOU EXPLAIN IT, THE MORE I DON'T UNDERSTAND IT." 

           III. 

BUT ONE DOES NOT NEED TO COMPREHEND THE PROCESSES BY WHICH OTHER
MINDS REACH A GIVEN RESULT IN ORDER TO ESTIMATE THE PRACTICAL
CONSEQUENCES OF THEIR PRONOUNCEMENT UPON JUDICIAL REVIEW OF
ADMINISTRATIVE ORDERS. 

IF IT IS OF NO CONSEQUENCE THAT NO RULE OF LAW BE EXISTENT TO SUPPORT
AN ADMINISTRATIVE ORDER, AND THE COURT OF APPEALS IS OBLIGED TO DEFER
TO ADMINISTRATIVE EXPERIENCE AND TO SUSTAIN A COMMISSION'S POWER MERELY
BECAUSE IT HAS BEEN ASSERTED AND EXERCISED, OF WHAT USE IS IT TO PRINT
A RECORD OR BRIEFS IN THE CASE, OR TO HEAR ARGUMENT?  ADMINISTRATIVE
EXPERIENCE ALWAYS IS PRESENT, AT LEAST TO THE DEGREE THAT IT IS HERE,
AND WOULD ALWAYS DICTATE A LIKE DEFERENCE BY THIS COURT TO AN ASSERTION
OF ADMINISTRATIVE POWER.  MUST THE REVIEWING COURT, AS THIS COURT DOES
IN THIS OPINION, SUPPORT THE ORDER ON A PRESUMPTIVE OR IMPUTED
EXPERIENCE EVEN THOUGH THE COURT IS OBLIGED TO DISCREDIT SUCH
EXPERIENCE IN THE VERY SAME OPINION?  IS FICTITIOUS EXPERIENCE TO BE
CONCLUSIVE IN MATTERS OF LAW AND PARTICULARLY IN THE INTERPRETATION OF
STATUTES, AS THE COURT'S OPINION NOW INTIMATES, OR JUST IN FACT FINDING
WHICH HAS BEEN THE FUNCTION WHICH THE COURT HAS HERETOFORE SUSTAINED
UPON THE ARGUMENT OF ADMINISTRATIVE EXPERIENCE? 

I SUGGEST THAT ADMINISTRATIVE EXPERIENCE IS OF WEIGHT IN JUDICIAL
REVIEW ONLY TO THIS POINT - IT IS A PERSUASIVE REASON FOR DEFERENCE TO
THE COMMISSION IN THE EXERCISE OF ITS DISCRETIONARY POWERS UNDER AND
WITHIN THE LAW.  IT CANNOT BE INVOKED TO SUPPORT ACTION OUTSIDE OF THE
LAW.  AND WHAT ACTION IS, AND WHAT IS NOT, WITHIN THE LAW MUST BE
DETERMINED BY COURTS, WHEN AUTHORIZED TO REVIEW, NO MATTER HOW MUCH
DEFERENCE IS DUE TO THE AGENCY'S FACT FINDING.  SURELY AN
ADMINISTRATIVE AGENCY IS NOT A LAW UNTO ITSELF, BUT THE COURT DOES NOT
REALLY FACE UP TO THE FACT THAT THIS IS THE JUSTIFICATION IT IS
OFFERING FOR SUSTAINING THE COMMISSION ACTION. 

EVEN IF THE COMMISSION HAD, AS THE COURT SAYS, UTILIZED THIS CASE TO
ANNOUNCE A NEW LEGAL STANDARD OF CONDUCT, THERE WOULD BE HURDLES TO BE
CLEARED, BUT WE NEED NOT DWELL ON THEM NOW.  BECAUSE TO PROMULGATE A
GENERAL RULE OF LAW, EITHER BY REGULATION OR BY CASE LAW, IS SOMETHING
THE COMMISSION EXPRESSLY DECLINED TO DO.  IT DID NOT PREVIOUSLY
PROMULGATE, AND IT DOES NOT BY THIS ORDER PROFESS TO PROMULGATE, ANY
RULE OR REGULATION TO PROHIBIT SUCH PURCHASES ABSOLUTELY OR UNDER
STATED CONDITIONS.  ON THE OTHER HAND, ITS POSITION IS THAT NO SUCH
RULE OR STANDARD WOULD BE FAIR AND EQUITABLE IN ALL CASES.  FN3

                                 IV. 

WHETHER, AS MATTER OF POLICY, CORPORATE MANAGERS DURING
REORGANIZATION SHOULD BE PROHIBITED FROM BUYING OR SELLING ITS STOCK,
IS NOT A QUESTION FOR US TO DECIDE.  BUT IT IS FOR US TO DECIDE
WHETHER, SO LONG AS NO LAW OR REGULATION PROHIBITS THEM FROM BUYING,
THEIR PURCHASES MAY BE FORFEITED, OR NOT, IN THE DISCRETION OF THE
COMMISSION.  IF SUCH A POWER EXISTS IN WORDS OF THE STATUTE OR IN THEIR
IMPLICATION, IT WOULD BE POSSIBLE TO POINT IT OUT AND THUS END THE
CASE.  INSTEAD, THE COURT ADMITS THAT THERE WAS NO LAW PROHIBITING
THESE PURCHASES WHEN THEY WERE MADE, OR AT ANY TIME THEREAFTER.  AND,
EXCEPT FOR THIS DECISION, THERE IS NONE NOW. 

THE TRUTH IS THAT IN THIS DECISION THE COURT APPROVES THE
COMMISSION'S ASSERTION OF POWER TO GOVERN THE MATTER WITHOUT LAW, POWER
TO FORCE SURRENDER OF STOCK SO PURCHASED WHENEVER IT WILL, AND POWER
ALSO TO OVERLOOK SUCH ACQUISITIONS IF IT SO CHOOSES.  THE REASONS WHICH
WILL LEAD IT TO TAKE ONE COURSE AS AGAINST THE OTHER REMAIN LOCKED IN
ITS OWN BREAST, AND IT HAS NOT AND APPARENTLY DOES NOT INTEND TO COMMIT
THEM TO ANY RULE OR REGULATION.  THIS ADMINISTRATIVE AUTHORITARIANISM,
THIS POWER TO DECIDE WITHOUT LAW, IS WHAT THE COURT SEEMS TO APPROVE IN
SO MANY WORDS:  "THE ABSENCE OF A GENERAL RULE OR REGULATION GOVERNING
MANAGEMENT TRADING DURING REORGANIZATION DID NOT AFFECT THE
COMMISSION'S DUTIES  ...  " (PAR. 13).  THIS SEEMS TO ME TO UNDERVALUE
AND TO BELITTLE THE PLACE OF LAW, EVEN IN THE SYSTEM OF ADMINISTRATIVE
JUSTICE.  IT CALLS TO MIND MR. JUSTICE CARDOZO'S STATEMENT THAT "LAW AS
A GUIDE TO CONDUCT IS REDUCED TO THE LEVEL OF MERE FUTILITY IF IT IS
UNKNOWN AND UNKNOWABLE."  FN4

                                  V. 

THE COURT'S AVERMENT CONCERNING THIS ORDER, THAT "IT IS THE TYPE OF
JUDGMENT WHICH ADMINISTRATIVE AGENCIES ARE BEST EQUIPPED TO MAKE AND
WHICH JUSTIFIES THE USE OF THE ADMINISTRATIVE PROCESS," (PAR. 29) IS
THE FIRST INSTANCE IN WHICH THE ADMINISTRATIVE PROCESS IS SUSTAINED BY
RELIANCE ON THAT DISREGARD OF LAW WHICH ENEMIES OF THE PROCESS HAVE
ALWAYS ALLEGED TO BE ITS PRINCIPAL EVIL.  IT IS THE FIRST ENCOURAGEMENT
THIS COURT HAS GIVEN TO CONSCIOUS LAWLESSNESS AS A PERMISSIBLE RULE OF
ADMINISTRATIVE ACTION.  THIS DECISION IS AN OMINOUS ONE TO THOSE WHO
BELIEVE THAT MEN SHOULD BE GOVERNED BY LAWS THAT THEY MAY ASCERTAIN AND
ABIDE BY, AND WHICH WILL GUIDE THE ACTION OF THOSE IN AUTHORITY AS WELL
AS OF THOSE WHO ARE SUBJECT TO AUTHORITY.  FN5    I HAVE LONG URGED,
AND STILL BELIEVE, THAT THE ADMINISTRATIVE PROCESS DESERVES FOSTERING
IN OUR SYSTEM AS AN EXPEDITIOUS AND NONTECHNICAL METHOD OF APPLYING LAW
IN SPECIALIZED FIELDS.  FN6  I CAN NOT AGREE THAT IT BE USED, AND I
THINK ITS CONTINUED EFFECTIVENESS IS ENDANGERED WHEN IT IS USED, AS A
METHOD OF DISPENSING WITH LAW IN THOSE FIELDS. 

FN1  FOR CONVENIENCE OF REFERENCE, I HAVE NUMBERED CONSECUTIVELY THE
PARAGRAPHS OF THE COURT'S OPINION, AND CITE QUOTATIONS ACCORDINGLY. 
FN2  THE FACTS AND THE LAW OF THE CASE GENERALLY ARE FULLY SET FORTH IN
THE FIRST OPINION OF MR. CHIEF JUSTICE GRONER OF THE COURT OF APPEALS
WHICH REVERSED THE COMMISSION'S ORDER (75 U.S. APP. D.C. 374, 128 F.2D
303) AND IN HIS SECOND OPINION (80 U.S. APP. D.C. 365, 154 F.2D 6)
AGAIN REVERSING THE COMMISSION'S ORDER AFTER IT HAD "RECAST ITS
RATIONALE." 

FN3  THE COMMISSION, SPEAKING OF SUCH A RULE, APPENDS THE FOLLOWING
NOTE TO ITS OPINION: 

"WITHOUT FLEXIBILITY THE RULE MIGHT ITSELF OPERATE UNFAIRLY. 
LIMITATION TO COST APPEARS APPROPRIATE HERE, BUT WOULD BE INAPPROPRIATE
IN A CASE WHERE THE COST OF THE SECURITY PURCHASED WAS IN EXCESS OF ITS
REORGANIZATION VALUE, AND IN SOME INSTANCES CASH PAYMENT BY THE COMPANY
WOULD NOT BE FEASIBLE.  IN ADDITION, SPECIAL TREATMENT OF ANY SORT
MIGHT BE INAPPROPRIATE FOR INCIDENTAL PURCHASES NOT MADE AS PART OF A
PROGRAM IN CONTEMPLATION OF REORGANIZATION BENEFITS.  IN THIS
CONNECTION, WE WISH TO EMPHASIZE THAT OUR CONCERN HERE IS NOT PRIMARILY
WITH THE NORMAL CORPORATE POWERS WHICH MAKE IT POSSIBLE FOR OFFICERS
AND DIRECTORS TO INFLUENCE THE MARKET FOR THEIR OWN GAIN, IN THE
ABSENCE OF REORGANIZATION, BY A CHOICE OF DIVIDEND POLICIES, ACCOUNTING
PRACTICES, PUBLISHED REPORTS, AND THE LIKE.  THE QUESTIONS OF FAIRNESS
AND DETRIMENT HERE PRESENTED ARISE BEFORE US IN THE CONTEXT OF A
CAPITAL READJUSTMENT.  AT THAT POINT OUR SCRUTINY IS CALLED FOR, AND
THAT OUR SCRUTINY IS TO BE VIGILANT CANNOT BE DOUBTED.  SEE APPENDIX TO
SEN. REP. NO. 621(74TH CONG., 1ST SESS.) ON S. 2796, AT P. 58, QUOTED
SUPRA." 

FN4  THE GROWTH OF THE LAW, P. 3. 

FN5  ON THE SAME DAY, THE COURT DENIED ITS OWN AUTHORITY TO RECOGNIZE
AND ENFORCE, WITHOUT CONGRESSIONAL ACTION, AN UNLEGISLATED LIABILITY
MUCH LESS NOVEL THAN THE ONE IMPOSED HERE, AND THAT IN THE FIELD OF
TORT LAW WHICH TRADITIONALLY HAS DEVELOPED BY DECISIONAL RATHER THAN BY
LEGISLATIVE PROCESS.  THE RESULT IS TO CONFIRM IN AN EXECUTIVE AGENCY A
DISCRETION TO ACT OUTSIDE OF ESTABLISHED LAW THAT GOES BEYOND ANY
JUDICIAL DISCRETION AS WELL AS BEYOND ANY LEGISLATIVE DELEGATION. 
COMPARE UNITED STATES V. STANDARD OIL CO., 332 U.S. 301. 

FN6  SEE STATEMENT BEFORE HOUSE OF DELEGATES, AMERICAN BAR
ASSOCIATION, 1939.  (1939 PROCEEDINGS, HOUSE OF DELEGATES, XXV A.B.A.
JOURNAL 95.)  ALSO SEE REPORT AS ATTORNEY GENERAL TO PRESIDENT
ROOSEVELT RECOMMENDING VETO OF WALTER-LOGAN BILL - MADE PART OF VETO
MESSAGE, VOL. 86, PART 12, CONGRESSIONAL RECORD, 76TH CONGRESS, 3D
SESSION, P. 13943. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 
..END :












UNITED STATES V. YELLOW CAB CO., 332 U.S. 218 


NO. 1035.  ARGUED MAY 7, 1947.  - DECIDED JUNE 23, 1947.  - 69 F.SUPP. 
170, REVERSED. 


1.  ALLEGATIONS OF A COMPLAINT FILED IN A FEDERAL DISTRICT COURT
PURSUANT TO SEC. 4 OF THE SHERMAN ANTITRUST ACT TO PREVENT AND RESTRAIN
THE DEFENDANTS FROM VIOLATING SECS. 1 AND 2 OF THE ACT, CHARGING A
COMBINATION AND CONSPIRACY TO RESTRAIN AND TO MONOPOLIZE INTERSTATE
TRADE AND COMMERCE IN THE SALE OF MOTOR VEHICLES FOR USE AS TAXICABS TO
THE PRINCIPAL CAB OPERATING COMPANIES IN CHICAGO, PITTSBURGH, NEW YORK
CITY AND MINNEAPOLIS, HELD SUFFICIENT TO STATE A CLAIM UPON WHICH
RELIEF MIGHT BE GRANTED.  PP. 220-228. 

(A)  A CONSPIRACY TO CONTROL THE PURCHASE OF TAXICABS BY THE
PRINCIPAL OPERATING COMPANIES IN CHICAGO, PITTSBURGH, NEW YORK CITY AND
MINNEAPOLIS, WHEREBY THEY PURCHASE THEIR CABS EXCLUSIVELY FROM A
MICHIGAN MANUFACTURER AND ARE PREVENTED FROM PURCHASING FROM OTHER
MANUFACTURERS, IS IN RESTRAINT OF INTERSTATE COMMERCE.  PP. 224-225,
226. 

(B)  IN DETERMINING WHETHER THE COMPLAINT CHARGES A VIOLATION OF SEC.
1 OR SEC. 2 OF THE SHERMAN ACT, IT IS ENOUGH IF SOME APPRECIABLE PART
OF INTERSTATE COMMERCE IS AFFECTED BY THE RESTRAINT OR MONOPOLY.  P.
225. 

(C)  INTERSTATE PURCHASES OF REPLACEMENTS OF SOME 5,000 LICENSED
TAXICABS IN FOUR CITIES IS AN APPRECIABLE AMOUNT OF COMMERCE.  P. 225. 

(D)  THE IMPORTANCE OF THE INTERSTATE COMMERCE AFFECTED IN RELATION
TO THE ENTIRE AMOUNT OF THAT TYPE OF COMMERCE IN THE UNITED STATES IS
IRRELEVANT.  P. 226. 

(E)  THE COMPLAINT IS NOT DEFECTIVE BY REASON OF ITS FAILURE TO
ALLEGE THAT THE MANUFACTURER INVOLVED HAS A MONOPOLY WITH REFERENCE TO
THE TOTAL NUMBER OF TAXICABS MANUFACTURED AND SOLD IN THE UNITED
STATES.  P. 226. 

(F)  THE FACT THAT THE CORPORATE DEFENDANTS, BY VIRTUE OF AFFILIATION
AND COMMON OWNERSHIP, CONSTITUTE A "VERTICALLY INTEGRATED ENTERPRISE"
DOES NOT NECESSARILY RENDER INAPPLICABLE THE PROHIBITIONS OF THE
SHERMAN ACT.  P. 227. 

2.  ALLEGATIONS OF A CONSPIRACY WHEREBY TWO OF THE DEFENDANTS WILL
NOT COMPETE WITH A THIRD DEFENDANT FOR CONTRACTS WITH RAILROADS OR
RAILROAD TERMINAL ASSOCIATIONS TO TRANSPORT PASSENGERS AND THEIR
LUGGAGE BETWEEN RAILROAD STATIONS IN CHICAGO, HELD SUFFICIENT TO CHARGE
A VIOLATION OF THE SHERMAN ACT.  PP. 228-229. 

(A)  THE TRANSPORTATION OF PASSENGERS AND THEIR LUGGAGE BETWEEN
RAILROAD STATIONS IN CHICAGO IS A PART OF THE STREAM OF INTERSTATE
COMMERCE.  P. 228. 

(B)  WHEN PERSONS OR GOODS MOVE FROM A POINT OF ORIGIN IN ONE STATE
TO A POINT OF DESTINATION IN ANOTHER, THE FACT THAT A PART OF THAT
JOURNEY CONSISTS OF TRANSPORTATION BY AN INDEPENDENT AGENCY SOLELY
WITHIN THE BOUNDARIES OF ONE STATE DOES NOT MAKE THAT PORTION OF THE
TRIP ANY LESS INTERSTATE IN CHARACTER.  P. 228. 

(C)  ALTHOUGH EXCLUSIVE CONTRACTS FOR THE TRANSPORTATION SERVICE IN
QUESTION ARE NOT ILLEGAL, IT IS NEVERTHELESS A VIOLATION OF THE SHERMAN
ACT TO CONSPIRE TO ELIMINATE COMPETITION IN OBTAINING SUCH CONTRACTS. 
P. 229. 

(D)  THE FACT THAT THE COMPETITION RESTRAINED IS THAT BETWEEN
AFFILIATED CORPORATIONS DOES NOT NEGATIVE THE STATUTORY VIOLATION WHERE
THE AFFILIATION ITSELF IS ONE OF THE MEANS OF EFFECTUATING THE ILLEGAL
CONSPIRACY NOT TO COMPETE.  P. 229. 

3.  THE SERVICE RENDERED BY LOCAL TAXICABS IN CONVEYING INTERSTATE
PASSENGERS BETWEEN THEIR HOMES AND RAILROAD STATIONS, IN THE NORMAL
COURSE OF THEIR INDEPENDENT LOCAL SERVICE, IS NOT AN INTEGRAL PART OF
INTERSTATE TRANSPORTATION; AND A RESTRAINT ON OR MONOPOLY OF THAT
GENERAL LOCAL SERVICE, WITHOUT MORE, IS NOT PROSCRIBED BY THE SHERMAN
ACT.  PP. 230-234. 

UNITED STATES V. YELLOW CAB CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

A COMPLAINT FILED BY THE UNITED STATES TO PREVENT AND RESTRAIN
ALLEGED VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ANTITRUST ACT WAS
DISMISSED BY THE DISTRICT COURT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MIGHT BE GRANTED.  69 F.SUPP.  170.  THE UNITED STATES APPEALED
DIRECTLY TO THIS COURT.  REVERSED AND REMANDED, P. 234. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES FILED A COMPLAINT IN THE FEDERAL DISTRICT COURT
BELOW PURSUANT TO SEC. 4 OF THE SHERMAN ANTI-TRUST ACT, 26 STAT. 209,
AS AMENDED, TO PREVENT AND RESTRAIN THE APPELLEES FROM VIOLATING SECS.
1 AND 2 OF THE ACT.  THE COMPLAINT ALLEGED THAT THE APPELLEES HAVE BEEN
AND ARE ENGAGED IN A COMBINATION AND CONSPIRACY TO RESTRAIN AND TO
MONOPOLIZE INTERSTATE TRADE AND COMMERCE (1) IN THE SALE OF MOTOR
VEHICLES FOR USE AS TAXICABS TO THE PRINCIPAL CAB OPERATING COMPANIES
IN CHICAGO, PITTSBURGH, NEW YORK CITY AND MINNEAPOLIS, AND (2) IN THE
BUSINESS OF FURNISHING CAB SERVICES FOR HIRE IN CHICAGO AND VICINITY. 
THE APPELLEES MOVED TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MIGHT BE GRANTED.  THAT MOTION WAS SUSTAINED. 
69 F.SUPP.  170.  THE CASE IS NOW HERE ON DIRECT APPEAL BY THE UNITED
STATES. 

THE ALLEGED FACTS, AS SET FORTH IN THE COMPLAINT, MAY BE SUMMARIZED
BRIEFLY.  IN JANUARY, 1929, ONE MORRIS MARKIN AND OTHERS COMMENCED
NEGOTIATIONS TO MERGE THE MORE IMPORTANT CAB OPERATING COMPANIES IN
CHICAGO, NEW YORK AND OTHER CITIES.  MARKIN WAS THEN PRESIDENT AND
GENERAL MANAGER, AS WELL AS THE CONTROLLING STOCKHOLDER, OF THE CHECKER
CAB MANUFACTURING CORPORATION (CCM).  THAT COMPANY WAS ENGAGED IN THE
BUSINESS OF MANUFACTURING TAXICABS AT ITS FACTORY IN KALAMAZOO,
MICHIGAN, AND SHIPPING THEM TO PURCHASERS IN VARIOUS STATES. 

PARMELEE TRANSPORTATION COMPANY (PARMELEE) WAS ORGANIZED IN APRIL,
1929, WITH 62% OF ITS STOCK BEING OWNED BY CCM.  IT PROMPTLY TOOK OVER
THE BUSINESS OF OPERATING SPECIAL UNLICENSED CABS TO TRANSPORT
PASSENGERS AND THEIR LUGGAGE BETWEEN RAILROAD STATIONS IN CHICAGO,
PURSUANT TO CONTRACTS WITH RAILROADS AND RAILROAD TERMINAL
ASSOCIATIONS.  IT THEN ACQUIRED A CONTROLLING INTEREST IN THE CHICAGO
YELLOW CAB COMPANY, INC. (CHICAGO YELLOW).  THIS LATTER COMPANY HOLDS
ALL THE CAPITAL STOCK OF YELLOW CAB COMPANY (YELLOW), THE OWNER AND
OPERATOR OF "YELLOW" CABS IN CHICAGO AND VICINITY.  YELLOW PRESENTLY
HOLDS 53% OF THE TAXICAB LICENSES OUTSTANDING IN CHICAGO.  IN ADDITION,
PARMELEE ACQUIRED OR ORGANIZED SUBSIDIARY COMPANIES WHICH NOW HOLD 100%
OF THE TAXICAB LICENSES OUTSTANDING IN PITTSBURGH, 58% OF THOSE IN
MINNEAPOLIS, AND 15% OF THOSE IN NEW YORK CITY.  FN1 

IN JANUARY, 1930, CAB SALES AND PARTS CORPORATION (CAB SALES) WAS
INCORPORATED.  AT ALL TIMES, MARKIN HAS BEEN THE ACTIVE MANAGER OF THIS
COMPANY; SINCE 1934, HE HAS BEEN THE SOLE STOCKHOLDER.  IT NOW OWNS AND
OPERATES THE "CHECKER" CABS IN CHICAGO AND VICINITY, USING LICENSES
HELD IN THE NAME OF CHECKER TAXI COMPANY (CHECKER).  FN2  CHECKER
PRESENTLY HAS NO EMPLOYEES AND NO PROPERTY OTHER THAN 1,000 CHICAGO
TAXICAB LICENSES, OR ONE-THIRD OF THE TOTAL OUTSTANDING, WHICH IT
LEASES TO CAB SALES; NEARLY ALL OF ITS STOCK IS OWNED BY ASSOCIATES OF
MARKIN.  FN3 

MARKIN ALSO OBTAINED A SUBSTANTIAL INTEREST IN THE DELUXE MOTOR CAB
COMPANY, WHICH WAS THE THIRD LARGEST CAB OPERATING COMPANY IN CHICAGO
IN 1929 WITH ITS 400 LICENSES.  HE CAUSED ALL OF ITS STOCK TO BE SOLD
TO PARMELEE.  IT WAS THEN CONSOLIDATED INTO A NEW COMPANY; IN 1932, CAB
SALES BOUGHT A CONTROLLING INTEREST IN THIS CONSOLIDATED CONCERN AND
CAUSED IT TO SUSPEND OPERATIONS.  THUS, BY THE END OF 1932, MARKIN HAD
GAINED CONTROL OF THE THREE LARGEST TAXICAB COMPANIES OPERATING IN
CHICAGO AND, THROUGH PARMELEE, HAD SUBSTANTIAL FOOTHOLDS IN THE TAXICAB
BUSINESS IN NEW YORK CITY, PITTSBURGH AND MINNEAPOLIS. 

YELLOW AND CHECKER HAVE CONSISTENTLY HELD A VAST MAJORITY OF THE
CHICAGO TAXICAB LICENSES.  THERE WERE 5,289 LICENSES OUTSTANDING IN
JANUARY, 1929, OF WHICH YELLOW HELD 2,335(44%) AND CHECKER 1,750(33%). 
IN SEPTEMBER, 1929, THE CITY OF CHICAGO ADOPTED AN ORDINANCE TO THE
EFFECT THAT NO MORE LICENSES SHOULD BE ISSUED, EXCEPT FOR RENEWALS,
UNLESS IT SHOULD BE FOUND THAT THE PUBLIC CONVENIENCE AND NECESSITY
REQUIRED OTHERWISE.  THE SUBSTANCE OF THIS PROVISION WAS REPEATED IN AN
ORDINANCE ADOPTED IN MAY, 1934.  YELLOW AND CHECKER SUBSEQUENTLY MADE
AGREEMENTS TO REDUCE THE NUMBER OF CABS IN OPERATION AND TO INDUCE THE
CITY TO LOWER THE NUMBER OF LICENSES OUTSTANDING TO 3,000, OF WHICH
YELLOW WOULD HOLD 1,500 AND CHECKER 1,000. 

ON DECEMBER 22, 1937, THE CITY OF CHICAGO PASSED AN ORDINANCE
PROVIDING FOR A METHOD OF VOLUNTARY SURRENDER BY LICENSEES OF A
SUFFICIENT NUMBER OF THEIR LICENSES TO REDUCE THE NUMBER OUTSTANDING TO
3,000.  IT WAS ALSO PROVIDED THAT IF THE NUMBER OF AUTHORIZED LICENSES
SHOULD LATER BE INCREASED ABOVE THE 3,000 FIGURE, SUCH ADDITIONAL
LICENSES SHOULD FIRST BE ISSUED TO THE ORIGINAL LICENSEES IN PROPORTION
TO, AND UP TO, THE NUMBER WHICH THEY HAD SURRENDERED.  YELLOW AND
CHECKER THEN MADE AN AGREEMENT TO IMPLEMENT THIS ORDINANCE; YELLOW
AGREED TO SURRENDER 571 LICENSES (LEAVING IT WITH 1,595) AND CHECKER
AGREED TO SURRENDER 500(LEAVING IT WITH 1,000); BOTH PARTIES PROMISED
TO ATTEMPT TO SECURE FOR YELLOW 60% AND FOR CHECKER 40% OF ANY LICENSES
IN EXCESS OF 3,000 WHICH THE CITY MIGHT LATER ISSUE.  AS A RESULT,
3,000 LICENSES WERE LEFT OUTSTANDING. 

ON JANUARY 16, 1946, THE CITY AUTHORIZED THE ISSUANCE OF 250 LICENSES
TO WAR VETERANS.  YELLOW WAS NOTIFIED THAT 234 OF ITS LICENSES,
REPRESENTING THAT NUMBER OF CABS WHICH HAD NOT BEEN IN OPERATION, WOULD
BE CANCELED.  CHECKER WAS GIVEN A SIMILAR NOTICE AS TO 87 LICENSES. 
YELLOW AND CHECKER THEN BROUGHT SUIT IN AN ILLINOIS COURT TO ENJOIN THE
CITY FROM ISSUING THE NEW LICENSES AND FROM CANCELING ANY OF THE ONES
ISSUED TO THEM; THEY CLAIMED THAT ECONOMIC CONDITIONS PREVENTED THEM
FROM PROCURING TAXICABS TO REPLACE THOSE WHICH HAD BECOME INOPERABLE. 
THE ILLINOIS COURTS HELD THAT THE 1937 ORDINANCE CREATED A CONTRACT
BETWEEN THE CITY AND THE LICENSEES AND THAT THE CITY COULD NOT ISSUE
LICENSES TO THE WAR VETERANS WITHOUT FIRST REPLACING THE LICENSES WHICH
YELLOW AND CHECKER HAD SURRENDERED; IT WAS FURTHER HELD THAT NO
MONOPOLY EXISTED, SINCE THE NUMBER OF LICENSES AND THE RIGHTS OF THE
LICENSEES WERE SUBJECT TO THE CONTROL OF THE CITY.  YELLOW CAB CO. V.
CITY OF CHICAGO, 396 ILL. 388, 71 N.E.2D 652. 

SUCH IS THE NATURE OF THE FACTS SET FORTH IN THE COMPLAINT.  THOSE
FACTS ALLEGEDLY GIVE RISE TO A COMBINATION AND CONSPIRACY ON THE PART
OF THE APPELLEES (YELLOW, CHICAGO YELLOW, PARMELEE, CAB SALES, CHECKER,
CCM AND MARKIN) IN VIOLATION OF THE SHERMAN ACT.  THE PROBLEMS THEREBY
RAISED CAN BEST BE CONSIDERED IN RELATION TO THE PURPORTED TERMS OF
THIS COMBINATION AND CONSPIRACY.  FOR PRESENT PURPOSES, OF COURSE, WE
MUST ASSUME, WITHOUT DECIDING OR IMPLYING, THAT THE VARIOUS FACTS AND
ALLEGATIONS IN THE COMPLAINT ARE TRUE. 

                                  I. 

IT IS SAID THAT THE APPELLEES HAVE AGREED TO CONTROL THE OPERATION
AND PURCHASE OF TAXICABS BY THE PRINCIPAL OPERATING COMPANIES IN
CHICAGO, NEW YORK CITY, PITTSBURGH AND MINNEAPOLIS, INSISTING THAT THEY
PURCHASE THEIR CABS EXCLUSIVELY FROM CCM.  THIS EXCLUDES ALL OTHER
MANUFACTURERS OF TAXICABS FROM 86% OF THE CHICAGO MARKET, 15% OF THE
NEW YORK CITY MARKET, 100% OF THE PITTSBURGH MARKET AND 58% OF THE
MINNEAPOLIS MARKET.  AT THE SAME TIME, THE TRADE OF THE CONTROLLED CAB
COMPANIES IS RESTRAINED SINCE THEY ARE PREVENTED FROM PURCHASING CABS
FROM MANUFACTURERS OTHER THAN CCM.  THE RESULT ALLEGEDLY IS THAT THESE
COMPANIES MUST PAY MORE FOR CABS THAN THEY WOULD OTHERWISE PAY, THEIR
OTHER EXPENDITURES ARE INCREASED UNNECESSARILY, AND THE PUBLIC IS
CHARGED HIGH RATES FOR THE TRANSPORTATION SERVICES RENDERED. 

THE COMMERCE WHICH IS ASSERTED TO BE RESTRAINED IN THIS MANNER HAS A
CHARACTER THAT IS UNDENIABLY INTERSTATE.  THE VARIOUS CAB OPERATING
COMPANIES DO BUSINESS IN ILLINOIS, NEW YORK, PENNSYLVANIA AND
MINNESOTA.  BY VIRTUE OF THE CONSPIRACY, THEY MUST PURCHASE ALL OF
THEIR CABS FROM CCM.  SINCE CCM'S FACTORY IS LOCATED IN MICHIGAN,
INTERSTATE SALES AND SHIPMENTS ARE INEVITABLE IF THE CONSPIRACY IS TO
BE EFFECTUATED.  THE CONSPIRACY ALSO PREVENTS THOSE OPERATING COMPANIES
FROM PURCHASING CABS FROM OTHER MANUFACTURERS, THUS PRECLUDING ALL
INTERSTATE SALES AND SHIPMENTS BETWEEN EACH INDIVIDUAL CAB OPERATING
COMPANY AND MANUFACTURERS (OTHER THAN CCM) LOCATED IN OTHER STATES. 
INTERSTATE TRADE, IN SHORT, IS OF THE VERY ESSENCE OF THIS ASPECT OF
THE CONSPIRACY. 

BUT THE AMOUNT OF INTERSTATE TRADE THUS AFFECTED BY THE CONSPIRACY IS
IMMATERIAL IN DETERMINING WHETHER A VIOLATION OF THE SHERMAN ACT HAS
BEEN CHARGED IN THE COMPLAINT.  SECTION 1 OF THE ACT OUTLAWS
UNREASONABLE RESTRAINTS ON INTERSTATE COMMERCE, REGARDLESS OF THE
AMOUNT OF THE COMMERCE AFFECTED.  UNITED STATES V. SOCONY-VACUUM OIL
CO., 310 U.S. 150, NOTE 59, P. 225; APEX HOSIERY CO. V. LEADER, 310
U.S. 469, 485.  AND SEC. 2 OF THE ACT MAKES IT UNLAWFUL TO CONSPIRE TO
MONOPOLIZE "ANY PART" OF INTERSTATE COMMERCE, WITHOUT SPECIFYING HOW
LARGE A PART MUST BE AFFECTED.  HENCE IT IS ENOUGH IF SOME APPRECIABLE
PART OF INTERSTATE COMMERCE IS THE SUBJECT OF A MONOPOLY, A RESTRAINT
OR A CONSPIRACY.  THE COMPLAINT IN THIS CASE DEALS WITH INTERSTATE
PURCHASES OF REPLACEMENTS OF SOME 5,000 LICENSED TAXICABS IN FOUR
CITIES.  FN4  THAT IS AN APPRECIABLE AMOUNT OF COMMERCE UNDER ANY
STANDARD.  SEE MONTAGUE & CO. V. LOWRY, 193 U.S. 38. 

LIKEWISE IRRELEVANT IS THE IMPORTANCE OF THE INTERSTATE COMMERCE
AFFECTED IN RELATION TO THE ENTIRE AMOUNT OF THAT TYPE OF COMMERCE IN
THE UNITED STATES.  THE SHERMAN ACT IS CONCERNED WITH MORE THAN THE
LARGE, NATION-WIDE OBSTACLES IN THE CHANNELS OF INTERSTATE TRADE.  IT
IS DESIGNED TO SWEEP AWAY ALL APPRECIABLE OBSTRUCTIONS SO THAT THE
STATUTORY POLICY OF FREE TRADE MIGHT BE EFFECTIVELY ACHIEVED.  AS THIS
COURT STATED IN INDIANA FARMER'S GUIDE CO. V. PRAIRIE FARMER CO., 293
U.S. 268, 279, "THE PROVISIONS OF SECS. 1 AND 2 HAVE BOTH A
GEOGRAPHICAL AND DISTRIBUTIVE SIGNIFICANCE AND APPLY TO ANY PART OF THE
UNITED STATES AS DISTINGUISHED FROM THE WHOLE AND TO ANY PART OF THE
CLASSES OF THINGS FORMING A PART OF INTERSTATE COMMERCE."  IT FOLLOWS
THAT THE COMPLAINT IN THIS CASE IS NOT DEFECTIVE FOR FAILURE TO ALLEGE
THAT CCM HAS A MONOPOLY WITH REFERENCE TO THE TOTAL NUMBER OF TAXICABS
MANUFACTURED AND SOLD IN THE UNITED STATES.  ITS RELATIVE POSITION IN
THE FIELD OF CAB PRODUCTION HAS NO NECESSARY RELATION TO THE ABILITY OF
THE APPELLEES TO CONSPIRE TO MONOPOLIZE OR RESTRAIN, IN VIOLATION OF
THE ACT, AN APPRECIABLE SEGMENT OF INTERSTATE CAB SALES.  AN ALLEGATION
THAT SUCH A SEGMENT HAS BEEN OR MAY BE MONOPOLIZED OR RESTRAINED IS
SUFFICIENT. 

NOR CAN IT BE DOUBTED THAT COMBINATIONS AND CONSPIRACIES OF THE TYPE
ALLEGED IN THIS CASE FALL WITHIN THE BAN OF THE SHERMAN ACT.  BY
EXCLUDING ALL CAB MANUFACTURERS OTHER THAN CCM FROM THAT PART OF THE
MARKET REPRESENTED BY THE CAB OPERATING COMPANIES UNDER THEIR CONTROL,
THE APPELLEES EFFECTIVELY LIMIT THE OUTLETS THROUGH WHICH CABS MAY BE
SOLD IN INTERSTATE COMMERCE.  LIMITATIONS OF THAT NATURE HAVE BEEN
CONDEMNED TIME AND AGAIN AS VIOLATIVE OF THE ACT.  ASSOCIATED PRESS V.
UNITED STATES, 326 U.S. 1, 18-19, AND CASES CITED.  IN ADDITION, BY
PREVENTING THE CAB OPERATING COMPANIES UNDER THEIR CONTROL FROM
PURCHASING CABS FROM MANUFACTURERS OTHER THAN CCM, THE APPELLEES DENY
THOSE COMPANIES THE OPPORTUNITY TO PURCHASE CABS IN A FREE, COMPETITIVE
MARKET.  FN5  THE SHERMAN ACT HAS NEVER BEEN THOUGHT TO SANCTION SUCH A
CONSPIRACY TO RESTRAIN THE FREE PURCHASE OF GOODS IN INTERSTATE
COMMERCE.  SEE MONTAGUE & CO. V. LOWRY, SUPRA; BINDERUP V. PATHE
EXCHANGE, 263 U.S. 291. 

THE FACT THAT THESE RESTRAINTS OCCUR IN A SETTING DESCRIBED BY THE
APPELLEES AS A VERTICALLY INTEGRATED ENTERPRISE DOES NOT NECESSARILY
REMOVE THE BAN OF THE SHERMAN ACT.  THE TEST OF ILLEGALITY UNDER THE
ACT IS THE PRESENCE OR ABSENCE OF AN UNREASONABLE RESTRAINT ON
INTERSTATE COMMERCE.  SUCH A RESTRAINT MAY RESULT AS READILY FROM A
CONSPIRACY AMONG THOSE WHO ARE AFFILIATED OR INTEGRATED UNDER COMMON
OWNERSHIP AS FROM A CONSPIRACY AMONG THOSE WHO ARE OTHERWISE
INDEPENDENT.  SIMILARLY, ANY AFFILIATION OR INTEGRATION FLOWING FROM AN
ILLEGAL CONSPIRACY CANNOT INSULATE THE CONSPIRATORS FROM THE SANCTIONS
WHICH CONGRESS HAS IMPOSED.  THE CORPORATE INTERRELATIONSHIPS OF THE
CONSPIRATORS, IN OTHER WORDS, ARE NOT DETERMINATIVE OF THE
APPLICABILITY OF THE SHERMAN ACT.  THAT STATUTE IS AIMED AT SUBSTANCE
RATHER THAN FORM.  SEE APPALACHIAN COALS, INC. V. UNITED STATES, 288
U.S. 344, 360-361, 376-377. 

AND SO IN THIS CASE, THE COMMON OWNERSHIP AND CONTROL OF THE VARIOUS
CORPORATE APPELLEES ARE IMPOTENT TO LIBERATE THE ALLEGED COMBINATION
AND CONSPIRACY FROM THE IMPACT OF THE ACT.  THE COMPLAINT CHARGES THAT
THE RESTRAINT OF INTERSTATE TRADE WAS NOT ONLY EFFECTED BY THE
COMBINATION OF THE APPELLEES BUT WAS THE PRIMARY OBJECT OF THE
COMBINATION.  THE THEORY OF THE COMPLAINT, TO BORROW LANGUAGE FROM
UNITED STATES V. READING CO., 253 U.S. 26, 57, IS THAT "DOMINATING
POWER" OVER THE CAB OPERATING COMPANIES "WAS NOT OBTAINED BY NORMAL
EXPANSION TO MEET THE DEMANDS OF A BUSINESS GROWING AS A RESULT OF
SUPERIOR AND ENTERPRISING MANAGEMENT, BUT BY DELIBERATE, CALCULATED
PURCHASE FOR CONTROL."  IF THAT THEORY IS BORNE OUT IN THIS CASE BY THE
EVIDENCE, COUPLED WITH PROOF OF AN UNDUE RESTRAINT OF INTERSTATE TRADE,
A PLAIN VIOLATION OF THE ACT HAS OCCURRED.  CF. UNITED STATES V.
CRESCENT AMUSEMENT CO., 323 U.S. 173, 189. 
    II.    IT IS SAID THAT THE APPELLEES HAVE AGREED THAT YELLOW
AND CAB SALES WILL NOT COMPETE WITH PARMELEE FOR CONTRACTS WITH
RAILROADS OR RAILROAD TERMINAL ASSOCIATIONS TO TRANSPORT PASSENGERS AND
THEIR LUGGAGE BETWEEN RAILROAD STATIONS IN CHICAGO.  THE COMPLAINT
POINTS OUT THE WELLKNOWN FACT THAT CHICAGO IS THE TERMINUS OF A LARGE
NUMBER OF RAILROADS ENGAGED IN INTERSTATE PASSENGER TRAFFIC AND THAT A
GREAT MAJORITY OF THE PERSONS MAKING INTERSTATE RAILROAD TRIPS WHICH
CARRY THEM THROUGH CHICAGO MUST DISEMBARK FROM A TRAIN AT ONE RAILROAD
STATION, TRAVEL FROM THAT STATION TO ANOTHER SOME TWO BLOCKS TO TWO
MILES DISTANT, AND BOARD ANOTHER TRAIN AT THE LATTER STATION.  THE
RAILROADS OFTEN CONTRACT WITH THE PASSENGERS TO SUPPLY BETWEEN-STATION
TRANSPORTATION IN CHICAGO.  PARMELEE THEN CONTRACTS WITH THE RAILROADS
AND THE RAILROAD TERMINAL ASSOCIATIONS TO PROVIDE THIS TRANSPORTATION
BY SPECIAL CABS CARRYING SEVEN TO TEN PASSENGERS.  PARMELEE'S CONTRACTS
ARE EXCLUSIVE IN NATURE. 

THE TRANSPORTATION OF SUCH PASSENGERS AND THEIR LUGGAGE BETWEEN
STATIONS IN CHICAGO IS CLEARLY A PART OF THE STREAM OF INTERSTATE
COMMERCE.  WHEN PERSONS OR GOODS MOVE FROM A POINT OF ORIGIN IN ONE
STATE TO A POINT OF DESTINATION IN ANOTHER, THE FACT THAT A PART OF
THAT JOURNEY CONSISTS OF TRANSPORTATION BY AN INDEPENDENT AGENCY SOLELY
WITHIN THE BOUNDARIES OF ONE STATE DOES NOT MAKE THAT PORTION OF THE
TRIP ANY LESS INTERSTATE IN CHARACTER.  THE DANIEL BALL, 10 WALL.  557,
565.  THAT PORTION MUST BE VIEWED IN ITS RELATION TO THE ENTIRE JOURNEY
RATHER THAN IN ISOLATION.  SO VIEWED, IT IS AN INTEGRAL STEP IN THE
INTERSTATE MOVEMENT.  SEE STAFFORD V. WALLACE, 258 U.S. 495. 

ANY ATTEMPT TO MONOPOLIZE OR TO IMPOSE AN UNDUE RESTRAINT ON SUCH A
CONSTITUENT PART OF INTERSTATE COMMERCE BRINGS THE SHERMAN ACT INTO
OPERATION.  HERE THERE IS AN ALLEGED CONSPIRACY TO BRING NEARLY ALL THE
CHICAGO TAXICAB COMPANIES UNDER COMMON CONTROL AND TO ELIMINATE
COMPETITION AMONG THEM RELATIVE TO CONTRACTS FOR SUPPLYING
TRANSPORTATION FOR THIS TRANSFER IN THE MIDST OF INTERSTATE JOURNEYS. 
ONLY PARMELEE IS FREE TO ATTEMPT TO PROCURE SUCH CONTRACTS; YELLOW AND
CAB SALES ARE FORBIDDEN TO COMPETE FOR SUCH CONTRACTS, DESPITE THE FACT
THAT THEY CONCEIVABLY MIGHT PROVIDE THE SAME TRANSPORTATION SERVICE AT
LOWER COST TO THE RAILROADS.  FN6  THE COMPLAINT ACCORDINGLY STATES A
VIOLATION OF THE SHERMAN ACT IN THIS RESPECT.  SEE ADDYSTON PIPE &
STEEL CO. V. UNITED STATES, 175 U.S. 211. 

IT IS TRUE, OF COURSE, THAT EXCLUSIVE CONTRACTS FOR THE
TRANSPORTATION SERVICE IN QUESTION ARE NOT ILLEGAL.  DONOVAN V.
PENNSYLVANIA CO., 199 U.S. 279.  BUT A CONSPIRACY TO ELIMINATE
COMPETITION IN OBTAINING THOSE EXCLUSIVE CONTRACTS IS WHAT IS ALLEGED
IN THIS CASE AND IT IS A CONSPIRACY OF THAT TYPE THAT RUNS AFOUL OF THE
SHERMAN ACT.  MOREOVER, THE FACT THAT THE COMPETITION RESTRAINED IS
THAT BETWEEN AFFILIATED CORPORATIONS CANNOT SERVE TO NEGATIVE THE
STATUTORY VIOLATION WHERE, AS HERE, THE AFFILIATION IS ASSERTEDLY ONE
OF THE MEANS OF EFFECTUATING THE ILLEGAL CONSPIRACY NOT TO COMPETE. 

                                 III. 

FINALLY, IT IS SAID THAT THE APPELLEES HAVE CONSPIRED TO CONTROL THE
PRINCIPAL TAXICAB OPERATING COMPANIES IN CHICAGO AND TO EXCLUDE OTHERS
FROM ENGAGING IN THE TRANSPORTATION OF INTERSTATE TRAVELERS TO AND FROM
CHICAGO RAILROAD STATIONS.  TO THAT END, THEY HAVE CONSPIRED TO INDUCE
THE CITY OF CHICAGO TO LIMIT THE NUMBER OF LICENSED TAXICABS TO 3,000,
TO HOLD 2,595(OR 86%) OF THESE LICENSES THEMSELVES, TO OBTAIN FOR
YELLOW AND CHECKER ANY LICENSES ABOVE 3,000 WHICH THE CITY MIGHT LATER
ISSUE, AND TO PREVENT NEW OPERATORS FROM ENTERING THE CAB BUSINESS IN
CHICAGO BY HAVING YELLOW AND CHECKER ANNUALLY RENEW LICENSES FOR CABS
WHICH THEY DO NOT OPERATE AND HAVE NO INTENTION OF OPERATING. 

THE INTERSTATE COMMERCE TOWARD WHICH THIS ASPECT OF THE CONSPIRACY IS
DIRECTED IS CLAIMED TO ARISE OUT OF THE FOLLOWING FACTS.  MANY PERSONS
ARE SAID TO EMBARK UPON INTERSTATE JOURNEYS FROM THEIR HOMES, OFFICES
AND HOTELS IN CHICAGO BY USING TAXICABS TO TRANSPORT THEMSELVES AND
THEIR LUGGAGE TO RAILROAD STATIONS IN CHICAGO.  CONVERSELY, IN MAKING
JOURNEYS FROM OTHER STATES TO HOMES, OFFICES AND HOTELS IN CHICAGO,
MANY PERSONS ARE SAID TO COMPLETE SUCH TRIPS BY USING TAXICABS TO
TRANSPORT THEMSELVES AND THEIR LUGGAGE FROM RAILROAD STATIONS IN
CHICAGO TO SAID HOMES, OFFICES AND HOTELS.  SUCH TRANSPORTATION OF
PERSONS AND THEIR LUGGAGE IS INTERMINGLED WITH THE ADMITTEDLY LOCAL
OPERATIONS OF THE CHICAGO TAXICABS.  BUT IT IS THAT ALLEGEDLY
INTERSTATE PART OF THE BUSINESS UPON WHICH RESTS THE VALIDITY OF THE
COMPLAINT IN THIS PARTICULAR. 

WE HOLD, HOWEVER, THAT SUCH TRANSPORTATION IS TOO UNRELATED TO
INTERSTATE COMMERCE TO CONSTITUTE A PART THEREOF WITHIN THE MEANING OF
THE SHERMAN ACT.  THESE TAXICABS, IN TRANSPORTING PASSENGERS AND THEIR
LUGGAGE TO AND FROM CHICAGO RAILROAD STATIONS, ADMITTEDLY CROSS NO
STATE LINES; BY ORDINANCE, THEIR SERVICE IS CONFINED TO TRANSPORTATION
"BETWEEN ANY TWO POINTS WITHIN THE CORPORATE LIMITS OF THE CITY."  NONE
OF THEM SERVES ONLY RAILROAD PASSENGERS, ALL OF THEM BEING REQUIRED TO
SERVE "EVERY PERSON" WITHIN THE LIMITS OF CHICAGO.  THEY HAVE NO
CONTRACTUAL OR OTHER ARRANGEMENT WITH THE INTERSTATE RAILROADS.  NOR
ARE THEIR FARES PAID OR COLLECTED AS PART OF THE RAILROAD FARES.  IN
SHORT, THEIR RELATIONSHIP TO INTERSTATE TRANSIT IS ONLY CASUAL AND
INCIDENTAL. 

IN A SENSE, OF COURSE, A TRAVELER STARTS AN INTERSTATE JOURNEY WHEN
HE BOARDS A CONVEYANCE NEAR HIS HOME, OFFICE OR HOTEL TO TRAVEL TO THE
RAILROAD STATION, FROM WHICH THE JOURNEY IS CONTINUED BY TRAIN; AND
SUCH A JOURNEY ENDS WHEN HE ALIGHTS FROM A CONVEYANCE NEAR THE HOME,
OFFICE OR HOTEL WHICH CONSTITUTES HIS ULTIMATE DESTINATION.  INDEED,
THE TERMINAL POINTS OF AN INTERSTATE JOURNEY MAY BE TRACED EVEN FURTHER
TO THE MOMENT WHEN THE TRAVELER LEAVES OR ENTERS HIS ROOM OR OFFICE AND
DESCENDS OR ASCENDS THE BUILDING BY ELEVATOR. 

BUT INTERSTATE COMMERCE IS AN INTENSELY PRACTICAL CONCEPT DRAWN FROM
THE NORMAL AND ACCEPTED COURSE OF BUSINESS.  SWIFT & CO. V. UNITED
STATES, 196 U.S. 375, 398; NORTH AMERICAN CO. V. S.E.C., 327 U.S. 686,
705.  AND INTERSTATE JOURNEYS ARE TO BE MEASURED BY "THE COMMONLY
ACCEPTED SENSE OF THE TRANSPORTATION CONCEPT."  UNITED STATES V.
CAPITAL TRANSIT CO., 325 U.S. 357, 363.  MOREOVER, WHAT MAY FAIRLY BE
SAID TO BE THE LIMITS OF AN INTERSTATE SHIPMENT OF GOODS AND CHATTELS
MAY NOT NECESSARILY BE THE COMMONLY ACCEPTED LIMITS OF AN INDIVIDUAL'S
INTERSTATE JOURNEY.  WE MUST ACCORDINGLY MARK THE BEGINNING AND END OF
A PARTICULAR KIND OF INTERSTATE COMMERCE BY ITS OWN PRACTICAL
CONSIDERATIONS. 

HERE WE BELIEVE THAT THE COMMON UNDERSTANDING IS THAT A TRAVELER
INTENDING TO MAKE AN INTERSTATE RAIL JOURNEY BEGINS HIS INTERSTATE
MOVEMENT WHEN HE BOARDS THE TRAIN AT THE STATION AND THAT HIS JOURNEY
ENDS WHEN HE DISEMBARKS AT THE STATION IN THE CITY OF DESTINATION. 
WHAT HAPPENS PRIOR OR SUBSEQUENT TO THAT RAIL JOURNEY, AT LEAST IN THE
ABSENCE OF SOME SPECIAL ARRANGEMENT, IS NOT A CONSTITUENT PART OF THE
INTERSTATE MOVEMENT.  THE TRAVELER HAS COMPLETE FREEDOM TO ARRIVE AT OR
LEAVE THE STATION BY TAXICAB, TROLLEY, BUS, SUBWAY, ELEVATED TRAIN,
PRIVATE AUTOMOBILE, HIS OWN TWO LEGS, OR VARIOUS OTHER MEANS OF
CONVEYANCE.  TAXICAB SERVICE IS THUS BUT ONE OF MANY THAT MAY BE USED. 
IT IS CONTRACTED FOR INDEPENDENTLY OF THE RAILROAD JOURNEY AND MAY BE
UTILIZED WHENEVER THE TRAVELER SO DESIRES.  FROM THE STANDPOINTS OF
TIME AND CONTINUITY, THE TAXICAB TRIP MAY BE QUITE DISTINCT AND
SEPARATE FROM THE INTERSTATE JOURNEY.  TO THE TAXICAB DRIVER, IT IS
JUST ANOTHER LOCAL FARE. 

PENNSYLVANIA R. CO. V. KNIGHT, 192 U.S. 21, DEMONSTRATES THIS COMMON
UNDERSTANDING.  THE COURT THERE HELD THAT THE PENNSYLVANIA RAILROAD
COMPANY WAS SUBJECT TO A STATE FRANCHISE TAX BY REASON OF THE FACT THAT
IT MAINTAINED A CAB SERVICE WITHIN THE BOUNDARIES OF NEW YORK CITY FOR
THE SOLE BENEFIT OF ITS RAIL PASSENGERS.  ITS CABS TRANSPORTED THE
PASSENGERS BETWEEN ITS FERRY STATION AND THEIR RESIDENCES AND HOTELS. 
THE COURT STATED THAT THIS CAB SERVICE WAS AN INDEPENDENT LOCAL
SERVICE, PRELIMINARY OR SUBSEQUENT TO ANY INTERSTATE TRANSPORTATION AND
NOT INCLUDED IN THE CONTRACT OF RAILROAD CARRIAGE.  HENCE IT WAS
SUBJECT TO STATE TAXATION.  IT IS TRUE THAT THIS RULING AS TO THE
EXTENT OF A STATE'S TAXING POWER IS NOT CONCLUSIVE AS TO THE BOUNDARIES
OF INTERSTATE COMMERCE FOR FEDERAL PURPOSES.  BACON V. ILLINOIS, 227
U.S. 504, 516; BINDERUP V. PATHE EXCHANGE, SUPRA, 311.  BUT IT DOES
ILLUSTRATE THE NORMAL AND ACCEPTED CONCEPT OF THE OUTER LIMITS OF THIS
TYPE OF INTERSTATE JOURNEY.  AND IT IS THAT CONCEPT THAT IS
DETERMINATIVE HERE. 

WE DO NOT MEAN TO ESTABLISH ANY ABSOLUTE RULE THAT LOCAL TAXICAB
SERVICE TO AND FROM RAILROAD STATIONS IS COMPLETELY BEYOND THE REACH OF
FEDERAL POWER OR EVEN BEYOND THE SCOPE OF THE SHERMAN ACT.  IN STAFFORD
V. WALLACE, SUPRA, 528, THE COURT MADE PLAIN THAT NOTHING IN THE KNIGHT
CASE WAS AUTHORITY FOR THE PROPOSITION THAT "IF SUCH AN AGENCY (LOCAL
CAB SERVICE) COULD BE AND WERE USED IN A CONSPIRACY UNDULY AND
CONSTANTLY TO MONOPOLIZE INTERSTATE PASSENGER TRAFFIC, IT MIGHT NOT BE
BROUGHT WITHIN FEDERAL RESTRAINT."  LIKEWISE, WE ARE NOT TO BE
UNDERSTOOD IN THIS CASE AS DECIDING THAT ALL CONSPIRACIES AMONG LOCAL
CAB DRIVERS ARE SO UNRELATED TO INTERSTATE COMMERCE AS TO FALL OUTSIDE
THE FEDERAL KEN.  A CONSPIRACY TO BURDEN OR ELIMINATE TRANSPORTATION OF
PASSENGERS TO AND FROM A RAILROAD STATION WHERE INTERSTATE JOURNEYS
BEGIN AND END MIGHT HAVE SUFFICIENT EFFECT UPON INTERSTATE COMMERCE TO
JUSTIFY THE IMPOSITION OF THE SHERMAN ACT OR OTHER FEDERAL LAWS RESTING
ON THE COMMERCE POWER OF CONGRESS. 

ALL THAT WE HOLD HERE IS THAT WHEN LOCAL TAXICABS MERELY CONVEY
INTERSTATE TRAIN PASSENGERS BETWEEN THEIR HOMES AND THE RAILROAD
STATION IN THE NORMAL COURSE OF THEIR INDEPENDENT LOCAL SERVICE, THAT
SERVICE IS NOT AN INTEGRAL PART OF INTERSTATE TRANSPORTATION.  AND A
RESTRAINT ON OR MONOPOLY OF THAT GENERAL LOCAL SERVICE, WITHOUT MORE,
IS NOT PROSCRIBED BY THE SHERMAN ACT. 

IT FOLLOWS THAT THE COMPLAINT, INSOFAR AS IT IS BASED ON SUCH LOCAL
TAXICAB SERVICE, FAILS TO STATE A CAUSE OF ACTION UNDER THE SHERMAN
ACT.  IT THUS BECOMES UNNECESSARY TO DISCUSS THE POINTS RAISED AS TO
THE SUBSTANCE OF THAT PART OF THE ALLEGED CONSPIRACY RELATING TO THIS
LOCAL SERVICE.  OUR CONCLUSION IN THIS RESPECT, HOWEVER, DOES NOT LEAD
TO AN AFFIRMANCE OF THE DISTRICT COURT'S DISMISSAL OF THE COMPLAINT. 
FOR THE REASONS SET FORTH IN PARTS I AND II OF THIS OPINION, THE
COMPLAINT DOES STATE A CAUSE OF ACTION UNDER THE ACT, ENTITLING THE
UNITED STATES TO A TRIAL ON THE MERITS.  SINCE THE PORTION OF THE
COMPLAINT DEALT WITH IN PART III OF THIS OPINION IS DEFECTIVE,
APPROPRIATE STEPS SHOULD BE TAKEN TO DELETE THE CHARGES IN RELATION
THERETO.  WITH THAT UNDERSTANDING, WE REVERSE THE JUDGMENT OF THE
DISTRICT COURT AND REMAND THE CASE FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  REVERSED. 

FN1  BETWEEN OCTOBER, 1929, AND JUNE, 1930, PARMELEE ACQUIRED ALL THE
TAXICAB COMPANIES OPERATING IN PITTSBURGH; IT NOW OPERATES THE CABS
THROUGH TWO WHOLLY OWNED SUBSIDIARIES.  EARLY IN 1931, PARMELEE FORMED
A COMPANY TO OPERATE CABS IN MINNEAPOLIS; A WHOLLY OWNED SUBSIDIARY NOW
OPERATES 125 OF THE 214 CABS LICENSED IN THAT CITY.  BEGINNING EARLY IN
1929, PARMELEE ACQUIRED CERTAIN COMPANIES OPERATING CABS IN NEW YORK
CITY; IT LATER CONSOLIDATED THEM IN A WHOLLY OWNED SUBSIDIARY NOW
HOLDING 2,000 OF THE 13,000 LICENSES OUTSTANDING IN THAT CITY. 

FN2  CHECKER ORIGINALLY WAS A COOPERATIVE COMPANY, THE STOCKHOLDERS
OF WHICH WERE THE VARIOUS OWNERS OF "CHECKER" CABS.  IN FEBRUARY, 1930,
AS PART OF A SETTLEMENT OF LITIGATION BETWEEN IT AND CCM, CHECKER
AGREED THAT ITS DRIVERS WOULD PURCHASE ALL OF THEIR TAXICABS FROM CAB
SALES FOR A PERIOD OF FIVE YEARS AT $2,350 PER CAB.  AT THE SAME TIME,
CCM APPOINTED CAB SALES AS EXCLUSIVE AGENT FOR THESE SALES AND AGREED
TO SELL ITS CABS TO CAB SALES AT $1,906 PER CAB.  DURING THE FIVE-YEAR
LIFE OF THIS AGREEMENT, CHECKER DRIVERS BOUGHT A LARGE NUMBER OF CABS
FROM CAB SALES AT PRICES ABOUT $400 ABOVE THOSE AT WHICH CAB SALES
BOUGHT THEM FROM CCM.  AS THESE DRIVERS DEFAULTED IN THEIR PAYMENTS
FROM TIME TO TIME, CAB SALES WOULD FORECLOSE AND TAKE OVER THE
OWNERSHIP AND OPERATION OF THE CABS.  SINCE 1941, IT HAS OWNED AND
OPERATED ALL OF THESE CABS. 

FN3  BY 1932, CAB SALES HAD ACQUIRED OVER 97% OF THE STOCK OF
CHECKER.  MARKIN CAUSED THIS STOCK TO BE SOLD TO CERTAIN OF HIS
ASSOCIATES IN 1942. 

FN4  2,595 LICENSES IN CHICAGO, 2,000 IN NEW YORK CITY, 125 IN
MINNEAPOLIS, AND AN ESTIMATED 280 IN PITTSBURGH. 

FN5  TO THE EXTENT THAT THE CONTROLLED OPERATING COMPANIES ARE
CHARGED HIGHER THAN THE OPEN MARKET PRICES, THEY ARE INJURED. 

FN6  THE DISTRICT COURT THOUGHT THAT PARMELEE'S EQUIPMENT AND
SERVICES ARE SO TOTALLY DIFFERENT FROM THE TAXICAB BUSINESS OF YELLOW
AND CAB SALES AS TO MAKE COMPETITION FOR THE CONTRACTS IMPRACTICAL AND
UNLIKELY.  BUT THAT IS A MATTER FOR DETERMINATION AT THE TRIAL ON THE
MERITS AND DOES NOT NEGATIVE THE SUFFICIENCY OF THE COMPLAINT.    MR.
JUSTICE BLACK AND MR. JUSTICE RUTLEDGE AGREE WITH PARTS I AND II OF
THIS OPINION BUT DISSENT FROM THE HOLDING IN PART III. 

MR. JUSTICE BURTON CONCURS IN PART III OF THIS OPINION.  HOWEVER, HE
BELIEVES THAT THE COMPLAINT AS A WHOLE FAILS TO STATE A CAUSE OF ACTION
AND THAT, THEREFORE, THE JUDGMENT OF THE DISTRICT COURT DISMISSING IT
SHOULD BE AFFIRMED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234 


NO. 847.  ARGUED MAY 6, 1947.  - DECIDED JUNE 23, 1947.  - 107 CT. CL.
131, 67 F.SUPP.  976, REVERSED. 


1.  NOTWITHSTANDING CLAIMS OF A SURETY ON A STATUTORY PAYMENT BOND
(GIVEN UNDER 40 U.S.C. SEC. 270A) FOR REIMBURSEMENT FOR SUMS PAID TO
LABORERS AND MATERIALMEN, THE GOVERNMENT MAY SET OFF, AGAINST
UNAPPROPRIATED PERCENTAGES OF PROGRESS PAYMENTS WITHHELD BY IT AND DUE
TO THE CONTRACTOR ON THE CONSTRUCTION CONTRACT, A DEBT OWED TO IT BY
THE CONTRACTOR AS A RESULT OF A SEPARATE AND INDEPENDENT TRANSACTION. 
PP. 236-244. 

2.  WHEN A RECEIVER IS APPOINTED FOR A CONTRACTOR WITH INSTRUCTIONS
TO COLLECT MONEY OWING TO THE CONTRACTOR BY THE GOVERNMENT AND TO HOLD
IT FOR REIMBURSEMENT OF A SURETY ON A PAYMENT BOND FOR PAYMENTS MADE TO
LABORERS AND MATERIALMEN, A SUIT IN THE COURT OF CLAIMS BY THE RECEIVER
AGAINST THE GOVERNMENT FOR MONEY DUE THE CONTRACTOR IS IN THE RIGHT OF
THE CONTRACTOR; BUT THE RECEIVER MAY ASSERT THE SURETY'S RIGHTS ALSO. 
P. 239. 

3.  UNDER JUDICIAL CODE SEC. 145, 28 U.S.C. SEC. 250, WHEN A RECEIVER
ASSERTS IN THE COURT OF CLAIMS A CONTRACTOR'S TITLE TO A SUM OWING TO
HIM BY THE GOVERNMENT, THAT COURT IS UNDER STATUTORY DUTY TO RECOGNIZE
AN UNDISPUTED CLAIM OF THE GOVERNMENT AGAINST THE CONTRACTOR.  PP. 239
240. 

4.  WITH REFERENCE TO WITHHELD AND UNAPPROPRIATED PERCENTAGES OF
PROGRESS PAYMENTS ON A CONSTRUCTION CONTRACT, PERFORMANCE OF WHICH HAS
BEEN COMPLETED AND ACCEPTED, THE GOVERNMENT IS NOT A MERE GENERAL
CREDITOR BUT A SECURED CREDITOR ENTITLED TO WITHHOLD WHAT IT OWES THE
CONTRACTOR UNTIL IT IS PAID WHATEVER THE CONTRACTOR OWES THE
GOVERNMENT.  P. 240. 

5.  A SURETY ON A PAYMENT BOND WHO HAS PAID LABORERS AND MATERIALMEN
FOR LABOR AND MATERIAL FURNISHED UNDER A GOVERNMENT CONSTRUCTION
CONTRACT IS NOT ENTITLED, BY SUBROGATION TO THEIR RIGHTS, TO A LIEN ON
UNAPPROPRIATED PERCENTAGES OF PROGRESS PAYMENTS RETAINED BY THE
GOVERNMENT FOR ITS OWN PROTECTION.  PP. 241-242. 

6.  THE RIGHT OF THE GOVERNMENT TO RETAINED PERCENTAGES OF PROGRESS
PAYMENTS ON A CONSTRUCTION CONTRACT DOES NOT DEVOLVE ON A SURETY WHO
HAS PAID LABORERS AND MATERIALMEN, SO AS TO PREVENT THE GOVERNMENT FROM
APPLYING THE UNAPPROPRIATED SUM TO THE SATISFACTION OF ITS OWN CLAIM
GROWING OUT OF A SEPARATE AND INDEPENDENT TRANSACTION.  PP. 242-243. 

7.  THE PROVISIONS OF 40 U.S.C. SEC. 270A REQUIRING A SEPARATE BOND
FOR PAYMENT OF LABORERS AND MATERIALMEN WERE ENACTED FOR THEIR BENEFIT
AND DO NOT GIVE SURETIES WHO HAVE PAID THEM RIGHTS TO THE DETRIMENT OF
THE GOVERNMENT.  PP. 243-244. 

8.  WHEN THE WORK TO BE DONE UNDER A GOVERNMENT CONSTRUCTION CONTRACT
HAS BEEN COMPLETED AT THE CONTRACT PRICE AND ACCEPTED BY THE
GOVERNMENT, THE LAW OF DAMAGES IS NOT PERTINENT TO THE RIGHTS OF A
SURETY ON A PAYMENT BOND GIVEN UNDER 40 U.S.C. SEC. 270A WHO HAS PAID
LABORERS AND MATERIALMEN.  P. 244. 

UNITED STATES V. MUNSEY TRUST CO., RECEIVER. 

CERTIORARI TO THE COURT OF CLAIMS. 

NOTWITHSTANDING THE EXISTENCE OF A CLAIM BY THE GOVERNMENT AGAINST
THE CONTRACTOR GROWING OUT OF ANOTHER TRANSACTION, THE COURT OF CLAIMS
GAVE JUDGMENT AGAINST THE GOVERNMENT TO A RECEIVER FOR A CONTRACTOR FOR
WITHHELD AND UNAPPROPRIATED PERCENTAGES OF PROGRESS PAYMENTS ON A
CONSTRUCTION CONTRACT, TO BE USED BY THE RECEIVER IN REIMBURSING A
SURETY ON A PAYMENT BOND FOR PAYMENTS MADE TO LABORERS AND
MATERIALMEN.  107 CT. CL. 131, 67 F.SUPP.  976.  THIS COURT GRANTED
CERTIORARI.  330 U.S. 814.  REVERSED, P. 244. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A PROBLEM ARISING OUT OF CONTRACTS FOR PUBLIC
BUILDING CONSTRUCTION AND REPAIR.  THE RIGHTS INTER SESE OF CONTRACTOR,
SURETY, ASSIGNEES AND GOVERNMENT HAVE BEEN PRODUCTIVE OF MUCH
LITIGATION, BUT WE HAVE NOT HERETOFORE HAD TO DECIDE WHETHER
PERCENTAGES RETAINED PURSUANT TO CONTRACT BY THE UNITED STATES MAY BE
SUBJECTED TO ITS SET-OFF CLAIMS DESPITE THE CLAIMS OF A SURETY WHO HAS
PAID LABORERS AND MATERIALMEN. 

IN MAY AND JULY, 1940, SIX CONTRACTS WERE MADE BETWEEN THE UNITED
STATES AND THE FEDERAL CONTRACTING CORPORATION, IN WHICH THE CORPORATE
CONTRACTOR AGREED TO PAINT AND REPAIR CERTAIN FEDERAL BUILDINGS.  EACH
CONTRACT CONFORMED TO THE REQUIREMENTS OF STATUTE, 49 STAT. 793, 40
U.S.C. SEC. 270A, ET SEQ., BY PROVIDING FOR TWO SURETY BONDS, ONE
CONDITIONED ON THE COMPLETION OF THE WORK WITHIN THE CONTRACT PERIOD,
AND THE OTHER ON THE PAYMENT OF THOSE FURNISHING LABOR AND MATERIAL TO
THE CONTRACTOR.  THE AETNA CASUALTY AND SURETY COMPANY SIGNED THOSE
BONDS, EACH OF WHICH ASSIGNED TO IT THE CONTRACTOR'S CLAIMS AGAINST THE
GOVERNMENT FOR SUMS DUE ON THE CONTRACTS WHENEVER THE SURETY SHOULD BE
COMPELLED BY DEFAULT OF THE CONTRACTOR TO FULFILL ITS OBLIGATIONS.  FN1
THE WORK WAS COMPLETED BY THE CONTRACTOR APPARENTLY IN 1940, AND
ACCEPTED BY THE GOVERNMENT.  THE SURETY THEREFORE WAS NOT CALLED UPON
TO MAKE GOOD THE PROMISE OF THE PERFORMANCE BONDS.  BUT THE CONTRACTOR
DID NOT PAY $13,065.93 OWED TO PERSONS WHO HAD SUPPLIED LABOR AND
MATERIAL FOR PERFORMANCE OF FIVE OF THE SIX CONTRACTS.  THIS
INDEBTEDNESS THE SURETY PAID BETWEEN APRIL AND SEPTEMBER, 1941 AS THE
PAYMENT BONDS OBLIGED IT TO DO. 

UNDER THE CUSTOMARY TERMS OF ITS CONTRACTS, THE GOVERNMENT HAD
RETAINED PERCENTAGES OF THE PROGRESS PAYMENTS DUE TO THE CONTRACTOR. 
THIS RETAINED MONEY, ON ACCEPTANCE OF THE WORK, AMOUNTED TO $12,445.03,
BUT IT WAS NOT DISBURSED.  ON OCTOBER 18, 1940, THE FEDERAL CONTRACTING
CORPORATION SUBMITTED A BID TO THE UNITED STATES FOR ANOTHER PAINTING
JOB, IN ST. LOUIS.  THAT BID WAS ACCEPTED, BUT THE CONTRACTOR THEN
FAILED TO ENTER INTO CONTRACT FOR THE WORK.  ANOTHER CONTRACTOR PAINTED
THE BUILDING FOR A PRICE WHICH LEFT THE GOVERNMENT CONSIDERABLY MORE
OUT-OF-POCKET THAN IT WOULD HAVE BEEN HAD FEDERAL UNDERTAKEN
PERFORMANCE AT ITS BID PRICE.  IT IS UNDISPUTED THAT $6,731.50 IS THE
AMOUNT OF DAMAGES SUSTAINED BY THE GOVERNMENT AFTER IT HAD APPLIED THE
CONTRACTOR'S DEPOSIT OF $415.00 IN REDUCTION. 

ALMOST INEVITABLY, COURT PROCESS WAS BEGUN TO UNTANGLE CLAIMS TO THE
MONEY THE UNITED STATES STILL OWED ON THE SIX CONTRACTS.  A STOCKHOLDER
OF FEDERAL ASKED THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA TO APPOINT A RECEIVER  FN2  TO COLLECT THE MONEY.  THE AETNA
CASUALTY AND SURETY COMPANY WAS MADE A PARTY TO THAT ACTION. 
RESPONDENT HERE, THE MUNSEY TRUST COMPANY, WAS APPOINTED RECEIVER WITH
DIRECTIONS TO DEMAND AND AUTHORITY TO RECEIVE FROM THE UNITED STATES
THE PROCEEDS OF THE SIX CONTRACTS.  THE ORDER OF APPOINTMENT ALSO
RECITED THAT "THE PROCEEDS OF ALL COLLECTIONS MADE BY THE RECEIVER
PURSUANT TO THIS ORDER SHALL BE HELD FOR THE REIMBURSEMENT OF THE
DEFENDANT THE AETNA CASUALTY AND SURETY COMPANY FOR EXPENDITURES MADE
BY IT IN THE PAYMENT OF FURNISHERS OF LABOR AND MATERIAL UNDER THE
SEVERAL CONTRACTS OF THE FEDERAL CONTRACTING CORPORATION." 

ON DEMAND BY THE RECEIVER FOR THE AMOUNTS DUE, THE GENERAL ACCOUNTING
OFFICE DEDUCTED THE GOVERNMENT'S CLAIM OF $6,731.50 AND PAID OVER
$5,713.53.  AETNA, BY LETTER TO THE COMPTROLLER GENERAL, PROTESTED THE
GOVERNMENT'S SETTLEMENT BY SET-OFF AND ASSERTED ITS RIGHT TO AN
ADDITIONAL $3,568.23.  FN3  THE RECEIVER ALSO PROTESTED THE SET-OFF AND
DEMANDED $3,143.23 FOR REIMBURSEMENT OF THE SURETY.  IT RELIED UPON
MARYLAND CASUALTY CO. V. UNITED STATES, 100 CT. CL. 513, 53 F.SUPP. 
436.  THE ACTING COMPTROLLER GENERAL DECLINED TO FOLLOW THE OPINION OF
THE COURT OF CLAIMS, IN THE ABSENCE OF RULING BY THIS COURT, AND
REJECTED THE PROTESTS.  WHEN THE RECEIVER REPORTED ITS EFFORTS TO THE
DISTRICT COURT, IT WAS ORDERED TO TURN OVER TO THE SURETY THE MONEY
COLLECTED, LESS $500.  THAT SUM WAS FOR PROSECUTION OF SUIT IN THE
COURT OF CLAIMS FOR THE RECOVERY OF WHATEVER OTHER MONEYS "MAY BE DUE
UNDER THE CONTRACTS OF THE FEDERAL CONTRACTING CORPORATION."  THIS
ACTION WAS BEGUN, AND THE COURT OF CLAIMS GAVE JUDGMENT FOR $3,568.23
TO RESPONDENT.  107 CT. CL. 131, 67 F.SUPP.  976.  WE GRANTED THE
GOVERNMENT'S PETITION FOR CERTIORARI BECAUSE OF THE IMPORTANCE AND
NOVELTY OF THE QUESTION AND THE CUMULATIVE EFFECT OF MARYLAND CASUALTY
CO. V. UNITED STATES, SUPRA, AND THE DECISION BELOW.  330 U.S. 814. 

IN THESE CASES, IT IS USUAL FOR THE RIGHTS RELIED UPON TO BE LARGELY
DERIVATIVE OR SUBROGATED ONES.  DECISION WILL BE ATTENDED WITH
UNNECESSARY CONFUSION AND DIFFICULTY IF IT IS NOT CLEAR WHOSE RIGHTS
ARE BEING ASSERTED AND WHO CLAIMS THEM.  THE COURT OF CLAIMS TREATED
THIS CASE AS THOUGH THE SURETY WERE PLAINTIFF.  BUT THE DISTRICT COURT
DIRECTED THE RECEIVER TO BRING THE SUIT.  ITS ORDER OF APPOINTMENT MADE
IT THE REPRESENTATIVE OF FEDERAL CONTRACTING CORPORATION, ALTHOUGH THE
SUMS IT WAS TO COLLECT WERE TO BE HELD FOR THE REIMBURSEMENT OF AETNA. 
THE SECOND ORDER AUTHORIZED THIS ACTION TO COLLECT WHATEVER OTHER MONEY
MIGHT BE HELD TO BE DUE UNDER THE SIX CONTRACTS WHICH THE GOVERNMENT
WOULD NOT VOLUNTARILY PAY.  CERTAINLY, THE RECEIVER SUED AT LEAST IN
THE RIGHT OF FEDERAL, BUT SINCE ITS EFFORTS WERE DIRECTED TO BE FOR THE
BENEFIT OF AETNA, IT MIGHT ASSERT THE SURETY'S RIGHTS ALSO.  SAMUEL
OLSON & CO. V. VOORHEES, 292 F. 113, 115. 

IF THE RIGHT OF THE UNITED STATES TO MAKE THE SET-OFF WERE OPPOSED
ONLY BY THE CLAIMS OF THE CONTRACTOR, THIS CASE WOULD PRESENT NO
DIFFICULTY.  THE GOVERNMENT HAS THE SAME RIGHT "WHICH BELONGS TO EVERY
CREDITOR, TO APPLY THE UNAPPROPRIATED MONEYS OF HIS DEBTOR, IN HIS
HANDS, IN EXTINGUISHMENT OF THE DEBTS DUE TO HIM."  GRATIOT V. UNITED
STATES, 15 PET. 336, 370; MCKNIGHT V. UNITED STATES, 98 U.S. 179, 186. 
MORE THAN THAT, FEDERAL STATUTE GIVES JURISDICTION TO THE COURT OF
CLAIMS TO HEAR AND DETERMINE "ALL SET-OFFS, COUNTERCLAIMS, CLAIMS FOR
DAMAGES, WHETHER LIQUIDATED OR UNLIQUIDATED, OR OTHER DEMANDS
WHATSOEVER ON THE PART OF THE GOVERNMENT OF THE UNITED STATES AGAINST
ANY CLAIMANT AGAINST THE GOVERNMENT IN SAID COURT  ...  "  JUDICIAL
CODE SEC. 145, 28 U.S.C. SEC. 250(2).  THIS POWER GIVEN TO THE COURT OF
CLAIMS TO STRIKE A BALANCE BETWEEN THE DEBTS AND CREDITS OF THE
GOVERNMENT, BY LOGICAL IMPLICATION GIVES POWER TO THE COMPTROLLER
GENERAL TO DO THE SAME, SUBJECT TO REVIEW BY THAT COURT.  INSOFAR AS
THE SUITOR IN THE COURT OF CLAIMS ASSERTED THE CONTRACTOR'S TITLE TO
THE SUM IN DISPUTE, THAT COURT WAS UNDER STATUTORY DUTY TO RECOGNIZE
THE UNDISPUTED CLAIM FOR DAMAGES OF THE UNITED STATES.  CHERRY COTTON
MILLS, INC. V. UNITED STATES, 327 U.S. 536. 

BUT THE SURETY URGES THAT IT IS SUBROGATED ALSO TO THE RIGHTS OF
LABORERS AND MATERIALMEN WHOM IT PAID AND OF THE UNITED STATES.  FROM
PRAIRIE STATE BANK V. UNITED STATES, 164 U.S. 227, TO AMERICAN SURETY
CO. V. SAMPSELL, 327 U.S. 269, WE HAVE RECOGNIZED THE PECULIARLY
EQUITABLE CLAIM OF THOSE RESPONSIBLE FOR THE PHYSICAL COMPLETION OF
BUILDING CONTRACTS TO BE PAID FROM AVAILABLE MONEYS AHEAD OF OTHERS
WHOSE CLAIMS COME FROM THE ADVANCE OF MONEY.  BUT IN ALL THOSE CASES,
THE OWNER WAS A MERE STAKEHOLDER AND HAD NO RIGHTS OF ITS OWN TO
ASSERT.  RESPONDENT TELLS US THAT HERE THE UNITED STATES IS IN THE SAME
POSITION AND THAT AS A GENERAL CREDITOR IT HAS NO MORE RIGHT TO THE
MONEY WHICH IT HOLDS THAN DOES ANY OTHER GENERAL CREDITOR OF THE
CONTRACTOR. 

AT THE TIME DEMAND FOR PAYMENT WAS MADE BY THE RECEIVER, THE CLAIM OF
THE UNITED STATES ON THE ST. LOUIS CONTRACT WAS EXTANT FOR SOME TIME. 
THE DISBURSING OFFICERS, THEREFORE, DID NOT CONCEDE THAT THEY HELD THE
ENTIRE AMOUNT OF THE RETAINED PERCENTAGES FOR DISTRIBUTION TO THE
CONTRACTOR OR OTHERS.  AND ONE WHOSE OWN APPROPRIATION AND PAYMENT OF
MONEY IS NECESSARY TO CREATE A FUND FOR GENERAL CREDITORS IS NOT A
GENERAL CREDITOR.  HE 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.  IN FACT, HE IS THE BEST
SECURED OF CREDITORS; HIS SECURITY IS HIS OWN JUSTIFIED REFUSAL TO PAY
WHAT HE OWES UNTIL HE IS PAID WHAT IS DUE HIM. 

BUT THE INFIRMITY IN RESPONDENT'S CASE GOES DEEPER.  IF THE UNITED
STATES WERE OBLIGATED TO PAY LABORERS AND MATERIALMEN UNPAID BY A
CONTRACTOR, THE SURETY WHO DISCHARGED THAT OBLIGATION COULD CLAIM
SUBROGATION.  BUT NOTHING IS MORE CLEAR THAN THAT LABORERS AND
MATERIALMEN DO NOT HAVE ENFORCEABLE RIGHTS AGAINST THE UNITED STATES
FOR THEIR COMPENSATION.  CF. H. HERFURTH, JR., INC. V. UNITED STATES,
89 CT. CL. 122; SEE SCHMOLL V. UNITED STATES, 105 CT. CL. 415, 455, 63
F.SUPP.  753, 757; MARYLAND CASUALTY CO. V. UNITED STATES, 100 CT. CL.
513, 521-522, 53 F.SUPP.  436, 440.  THEY CANNOT ACQUIRE A LIEN ON
PUBLIC BUILDINGS, HILL V. AMERICAN SURETY CO., 200 U.S. 197, 203;
EQUITABLE SURETY CO. V. MCMILLAN, 234 U.S. 448, 455, AND AS A
SUBSTITUTE FOR THAT MORE CUSTOMARY PROTECTION, THE VARIOUS STATUTES
WERE PASSED WHICH REQUIRE THAT A SURETY GUARANTEE THEIR PAYMENT.  OF
THESE, THE LAST AND THE ONE NOW IN FORCE IS THE MILLER ACT UNDER WHICH
THE BONDS HERE WERE DRAWN. 

THE SURETY SAYS, NEVERTHELESS, THAT THE LABORERS AND MATERIALMEN MAY
HAVE A LIEN, OR SOMETHING IN THE NATURE OF A LIEN, ON THE RETAINED
PERCENTAGES.  ITS ARGUMENT RUNS INTO LOGICAL DIFFICULTIES.  FOR IT
ASSERTS THAT THE MONEYS ARE RETAINED BY THE GOVERNMENT AS MUCH FOR
ASSURANCE THAT THE CONTRACTOR WILL PERFORM HIS CONTRACT BY PAYING THE
LABORERS AND MATERIALMEN AS BY COMPLETING THE WORK ON TIME.  IT IS SAID
TO FOLLOW THAT SO LONG AS THEY REMAIN UNPAID, THE CONTRACTOR MAY NOT
DEMAND PAYMENT AND THE GOVERNMENT WOULD BE JUSTIFIED IN REFUSING TO
DISBURSE THE RETAINED PERCENTAGES.  FN4  IN THAT CASE, HOW MAY THE
LABORERS AND MATERIALMEN HAVE A LIEN UPON MONEY WHICH THE UNITED STATES
MAY LEGALLY KEEP?  SURELY IT IS NOT INTENDED THAT THE LABORERS AND
MATERIALMEN MAY CLAIM PAYMENT OF THAT WHICH IS NOT DUE TO THE
CONTRACTOR.  WE ARE AWARE THAT THE LABORERS AND MATERIALMEN HAVE BEEN
PAID, SO THAT BY NO INTERPRETATION OF THE CONTRACTS BETWEEN GOVERNMENT
AND CONTRACTOR CAN THERE BE RESTRICTIONS ON PAYING OUT THE MONEY
RETAINED.  IT IS SAID THAT IT WAS THE SURETY'S PAYMENT OF THOSE CLAIMS
WHICH RELEASED THE ASSERTED CONTRACT RESTRICTIONS.  IN RELYING ON THE
RIGHTS OF THE LABORERS AND MATERIALMEN, HOWEVER, THE SURETY MUST
ESTABLISH THAT THOSE RIGHTS EXISTED BEFORE THEIR CLAIMS WERE PAID.  FOR
IT IS ELEMENTARY THAT ONE CANNOT ACQUIRE BY SUBROGATION WHAT ANOTHER
WHOSE RIGHTS HE CLAIMS DID NOT HAVE.  ONCE THE LABORERS AND MATERIALMEN
HAVE BEEN PAID, EITHER BY CONTRACTOR OR SURETY, THEY HAVE NO RIGHTS IN
ANY FUND.  IF BEFORE THEY ARE PAID, THE FUND TO WHICH THEY ARE SAID TO
BE ENTITLED TO LOOK IS UNAVAILABLE FOR THE VERY REASON THAT THEY ARE
UNPAID, THE SURETY RELIES ON NOTHING WHEN IT RELIES ON THOSE
NONEXISTENT "RIGHTS."  ONE WHO RESTS ON SUBROGATION STANDS IN THE PLACE
OF ONE WHOSE CLAIM HE HAS PAID, AS IF THE PAYMENT GIVING RISE TO THE
SUBROGATION HAD NOT BEEN MADE.  SEE AETNA LIFE INSURANCE CO. V.
MIDDLEPORT, 124 U.S. 534, 548.  HE CANNOT JUMP BACK AND FORTH IN TIME
AND PRESENT HIMSELF AT ONCE AS THE UNPAID CLAIMANT AND AGAIN, UNDER THE
CONDITIONS AS THEY HAVE CHANGED, BECAUSE PAYMENT WAS MADE. 

WE NEED NOT DECIDE WHETHER LABORERS AND MATERIALMEN WOULD HAVE ANY
CLAIM TO THE RETAINED PERCENTAGES IF BOTH CONTRACTOR AND SURETY FAILED
TO PAY THEM.  EVEN IF THEY DO, CERTAINLY THOSE WOULD BE RIGHTS TO WHICH
THE SURETY COULD NOT BE SUBROGATED, FOR BY HYPOTHESIS IT WOULD HAVE
DONE NOTHING TO EARN SUBROGATION. 

THE SURETY HAS YET ANOTHER PARTY WHOSE RIGHTS IT WOULD CLAIM, IF IT
CANNOT PREVAIL BY SUBSTITUTION FOR CONTRACTOR OR LABORERS AND
MATERIALMEN.  THIS CONTENTION TOO WAS SUSTAINED BY THE COURT OF CLAIMS
WHEN IT SAID THAT THE RIGHTS OF THE UNITED STATES DEVOLVED UPON THE
SURETY, BECAUSE OF ITS PAYMENTS.  WE ARE TOLD THAT THE UNITED STATES
RETAINED THE MONEY TO ASSURE PERFORMANCE OF ALL THE OBLIGATIONS OF THE
CONTRACTOR, AND THAT THE SURETY IS ENTITLED TO APPLY THAT SECURITY TO
INDEMNIFY ITSELF FOR PERFORMING ONE OF THOSE OBLIGATIONS.  THIS IS BY
ANALOGY TO THE RULE THAT AN OBLIGEE, AS AGAINST A SURETY, MAY NOT APPLY
SECURITY IN SATISFACTION OF DEBTS OTHER THAN THE ONE IT SECURES.  SEE 4
POMEROY, EQUITY JURISPRUDENCE (5TH ED.)  1075.  BUT ALTHOUGH WE HAVE
ASSUMED, FOR THE PURPOSES OF ANOTHER ARGUMENT, THAT ASSURANCE THAT
LABORERS AND MATERIALMEN WILL BE PAID IS ONE OF THE REASONS FOR
RETAINING THE MONEY, IT SEEMS MORE LIKELY THAT COMPLETION OF THE WORK
ON TIME IS THE ONLY MOTIVE.  CALIFORNIA BANK V. UNITED STATES FIDELITY
& GUARANTY CO., 129 F.2D 751; SEE SCHMOLL V. UNITED STATES, 105 CT. CL.
415, 455, 63 F.SUPP.  753, 757; MARYLAND CASUALTY CO. V. UNITED STATES,
SUPRA, AT 439.  IT IS HARDLY REASONABLE TO WITHHOLD MONEY IN ORDER TO
ASSURE PAYMENTS WHICH PERHAPS CAN BE MADE ONLY FROM THE MONEY EARNED. 
IN ANY EVENT, WE ARE NOT PREPARED TO APPLY LAW RELATING TO SECURITY TO
UNAPPROPRIATED SUMS WHICH EXIST ONLY AS A CLAIM. 

FINALLY, THE SURETY BY REFERENCE TO THE MARYLAND CASUALTY CASE, SUPRA,
SUGGESTS THAT IT HAS RIGHTS OF ITS OWN IN THE MONEY WHICH THE
GOVERNMENT RETAINED.  IT ARGUES THAT THE IMPLICATION OF THE SEVERAL
CONTRACTS AMONG GOVERNMENT, CONTRACTOR AND SURETY WAS THAT THE MONEYS
EARNED UNDER THE REPAIR CONTRACTS WOULD BE AVAILABLE TO PAY CLAIMS
ARISING UNDER EACH JOB.  HOWEVER, IF STATUTE DID NOT REQUIRE A SURETY,
THERE COULD BE NO QUESTION THAT THE GOVERNMENT WOULD HAVE THE RIGHT OF
SET-OFF.  RESPONDENT'S CONTENTION THEN COMES TO THIS:  THAT BY
REQUIRING THE CONTRACTOR TO FURNISH ASSURANCES THAT HE WILL PERFORM HIS
OBLIGATIONS TO LABORERS AND MATERIALMEN, THE GOVERNMENT HAS
DELIBERATELY DECREASED THE ORDINARY SAFEGUARDS IT WOULD HAVE HAD TO
ENFORCE THE CONTRACTOR'S OBLIGATIONS TO IT.  WE SEE NOTHING IN THE
WORDS OF THE CONTRACT OR THE STATUTE TO LEAD US TO THIS CONCLUSION.  ON
THE CONTRARY, THE STATUTORY PROVISIONS REQUIRING A SEPARATE BOND FOR
PAYMENT OF LABORERS AND MATERIALMEN WERE ENACTED FOR THEIR BENEFIT, NOT
TO THE DETRIMENT OF THE GOVERNMENT.  IT IS THE SURETY WHO IS REQUIRED
TO TAKE RISK.  WE HAVE NO WARRANT TO INCREASE RISKS OF THE GOVERNMENT. 

RESPONDENT ARGUES THAT IF THE WORK HAD NOT BEEN COMPLETED, AND THE
SURETY CHOSE NOT TO COMPLETE IT, THE SURETY WOULD BE LIABLE ONLY FOR
THE AMOUNT NECESSARY TO COMPLETE, LESS THE RETAINED MONEY.  MOREOVER,
IF THE SURETY DID COMPLETE THE JOB, IT WOULD BE ENTITLED TO THE
RETAINED MONEYS IN ADDITION TO PROGRESS PAYMENTS.  THE SITUATION HERE
IS SAID TO BE SIMILAR.  BUT WHEN A JOB IS INCOMPLETE, THE GOVERNMENT
MUST EXPEND FUNDS TO GET THE WORK DONE, AND IS ENTITLED TO CLAIM
DAMAGES ONLY IN THE AMOUNT OF THE EXCESS WHICH IT PAYS FOR THE JOB OVER
WHAT IT WOULD HAVE PAID HAD THE CONTRACTOR NOT DEFAULTED.  THEREFORE, A
SURETY WOULD RARELY UNDERTAKE TO COMPLETE A JOB IF IT INCURRED THE RISK
THAT BY COMPLETING IT MIGHT LOSE MORE THAN IF IT HAD ALLOWED THE
GOVERNMENT TO PROCEED.  WHEN LABORERS AND MATERIALMEN, HOWEVER, ARE
UNPAID AND THE WORK IS COMPLETE, THE GOVERNMENT SUFFERS NO DAMAGE.  THE
WORK HAS BEEN DONE AT THE CONTRACT PRICE.  THE GOVERNMENT CANNOT SUFFER
DAMAGE BECAUSE IT IS UNDER NO LEGAL OBLIGATION TO PAY THE LABORERS AND
MATERIALMEN.  IN THE CASE OF THE LABORERS' BOND, THE SURETY HAS
PROMISED THAT THEY WILL BE PAID, NOT, AS IN THE CASE OF PERFORMANCE
BOND, THAT WORK WILL BE DONE AT A CERTAIN PRICE.  THE LAW OF DAMAGES IS
THEREFORE NOT PERTINENT TO THE PAYMENT BOND. 

WE HOLD THAT THE GOVERNMENT PROPERLY USED ITS RIGHT TO SET OFF ITS
INDEPENDENT CLAIM AND THE JUDGMENT BELOW MUST BE REVERSED. 

FN1  THESE ASSIGNMENTS WERE OF COURSE INVALID AGAINST THE UNITED
STATES, R.S. SEC. 3477, 31 U.S.C. SEC. 203; MARTIN V. NATIONAL SURETY
CO., 300 U.S. 588, BUT THEY ENABLE THE SURETY TO PREVAIL OVER THE
CONTRACTOR IF THERE IS CONTEST BETWEEN THEM. 

FN2  SUCH PROCEEDINGS TO APPOINT A RECEIVER IN THE DISTRICT OF
COLUMBIA ARE FOR THE PURPOSE OF TAKING POSSESSION OF A FUND OR PROPERTY
AND TO PREVENT ITS LOSS OR DISSIPATION.  INSOLVENCY IS NOT A NECESSARY
ALLEGATION, HOUSTON V. ORMES, 252 U.S. 469, AND THERE IS NO CLAIM IN
THIS CASE THAT THE CONTRACTOR IS INSOLVENT. 

FN3  THE SURETY DID NOT AND COULD NOT CLAIM THE WHOLE AMOUNT RETAINED
BY THE GOVERNMENT.  THE PAYMENTS FOR WHICH IT WAS LIABLE, AND WHICH IT
PAID, ON TWO OF THE CONTRACTS EXCEEDED, AND ON THE OTHER FOUR WERE LESS
THAN, THE AMOUNTS RETAINED ON EACH PARTICULAR CONTRACT. 

FN4  IF THE MONEY IS RETAINED ONLY TO ASSURE PERFORMANCE OF THE WORK,
THEN THE CONTRACTOR MIGHT COMPEL PAYMENT WHEN THE WORK IS ACCEPTED.  IN
THAT CASE, THE SURETY'S ARGUMENT FALLS, SINCE OBVIOUSLY, BEFORE PAYING,
THE GOVERNMENT MIGHT SET OFF CLAIMS AGAINST THE CONTRACTOR. 

MR. JUSTICE BURTON DISSENTS. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











FAHEY V. MALLONEE, 332 U.S. 245 


NO. 687.  ARGUED APRIL 30, 1947.  - DECIDED JUNE 23, 1947.  - 68
F.SUPP.  418, REVERSED. 


1.  SECTION 5(D) OF THE HOME OWNERS' LOAN ACT OF 1933, WHICH
AUTHORIZES THE FEDERAL HOME LOAN BANK BOARD TO PRESCRIBE BY REGULATION
THE TERMS AND CONDITIONS UPON WHICH A CONSERVATOR MAY BE APPOINTED FOR
A FEDERAL SAVINGS AND LOAN ASSOCIATION, IS NOT AN UNCONSTITUTIONAL
DELEGATION OF LEGISLATIVE FUNCTIONS.  PP. 248-254. 

(A)  PANAMA REFINING CO. V. RYAN, 293 U.S. 388; SCHECHTER CORP. V.
UNITED STATES, 295 U.S. 495, DISTINGUISHED.  PP. 249-250. 

(B)  BANKING BEING ONE OF THE LONGEST REGULATED AND MOST CLOSELY
SUPERVISED OF PUBLIC CALLINGS, A DISCRETION TO MAKE REGULATIONS TO
GUIDE SUPERVISORY ACTION WITH RESPECT TO THE APPOINTMENT OF
CONSERVATORS, RECEIVERS AND LIQUIDATORS FOR BANKING INSTITUTIONS MAY BE
CONSTITUTIONALLY PERMISSIBLE WHILE IT MIGHT NOT BE ALLOWABLE TO
AUTHORIZE CREATION OF NEW CRIMES IN UNCHARTED FIELDS.  P. 250. 

(C)  THE RULES AND REGULATIONS OF THE HOME LOAN BANK BOARD GOVERNING
THE APPOINTMENT OF CONSERVATORS ARE SUFFICIENTLY EXPLICIT, AGAINST THE
BACKGROUND OF CUSTOM, TO BE ADEQUATE FOR PROPER ADMINISTRATION AND FOR
JUDICIAL REVIEW.  PP. 250-253. 

(D)  IN VIEW OF THE DELICATE NATURE OF BANKING INSTITUTIONS AND THE
IMPOSSIBILITY OF PRESERVING CREDIT DURING AN INVESTIGATION, IT IS NOT
UNCONSTITUTIONAL TO PROVIDE FOR A HEARING AFTER, INSTEAD OF BEFORE, A
CONSERVATOR TAKES POSSESSION.  PP. 253-254. 

2.  WHEN, AFTER THE APPOINTMENT OF A CONSERVATOR FOR A FEDERAL
SAVINGS AND LOAN ASSOCIATION, AN ADMINISTRATIVE HEARING IS GRANTED AND
SPECIFICATIONS OF THE CHARGES ARE FURNISHED, BUT THE MAKING OF A RECORD
IS PREVENTED BY AN INJUNCTION OBTAINED BY ITS SHAREHOLDERS IN A
DERIVATIVE SUIT ON BEHALF OF THE ASSOCIATION WITHOUT THE TAKING OF
TESTIMONY BY THE TRIAL COURT, THIS COURT, IN REVIEWING THE JUDGMENT FOR
THE PURPOSE OF DETERMINING THE CASE WITHOUT TRIAL, MUST ASSUME THAT THE
SUPERVISORY AUTHORITIES WOULD BE ABLE TO SUSTAIN THE STATEMENTS OF FACT
AND TO JUSTIFY THE CONCLUSIONS IN THEIR CHARGES.  P. 254. 

3.  IN A DERIVATIVE SUIT ON BEHALF OF THE ASSOCIATION, SHAREHOLDERS
OF A FEDERAL SAVINGS AND LOAN ASSOCIATION ORGANIZED UNDER SEC. 5 OF THE
HOME OWNERS' LOAN ACT OF 1933 ARE ESTOPPED FROM CHALLENGING THE
CONSTITUTIONALITY OF THE PROVISIONS OF SEC. 5(D), WHICH AUTHORIZE THE
FEDERAL HOME LOAN BANK BOARD TO PRESCRIBE THE TERMS AND CONDITIONS UPON
WHICH A CONSERVATOR MAY BE APPOINTED FOR THE ASSOCIATION.  PP. 255
256. 

FAHEY, FEDERAL HOME LOAN BANK COMMISSIONER, ET AL. V. MALLONEE ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

IN A SHAREHOLDERS' DERIVATIVE SUIT ON BEHALF OF A FEDERAL SAVINGS AND
LOAN ASSOCIATION, A THREE-JUDGE DISTRICT COURT HELD SEC. 5(D) OF THE
HOME OWNERS' LOAN ACT OF 1933 UNCONSTITUTIONAL, ORDERED REMOVAL OF A
CONSERVATOR WHO HAD BEEN APPOINTED FOR THE ASSOCIATION, PERMANENTLY
ENJOINED THE AUTHORITIES FROM HOLDING AN ADMINISTRATIVE HEARING ON THE
MATTER, PERMANENTLY ENJOINED AN APPREHENDED MERGER, RESTORED THE
ASSOCIATION TO ITS FORMER MANAGEMENT, ORDERED THE CONSERVATOR TO
ACCOUNT, AND ENJOINED THESE AUTHORITIES "FROM EVER ASSERTING ANY
CLAIMS, RIGHT, TITLE OR INTEREST" IN OR TO THE ASSOCIATION'S PROPERTY. 
68 F.SUPP.  418.  ON DIRECT APPEAL TO THIS COURT, REVERSED, P. 258. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

A SPECIALLY CONSTITUTED THREE-JUDGE DISTRICT COURT HAS SUMMARILY,
WITHOUT TRIAL, ENTERED FINAL JUDGMENT OUSTING A CONSERVATOR WHO, ON
ORDERS OF THE FEDERAL HOME LOAN BANK COMMISSIONER, HAD TAKEN POSSESSION
OF THE LONG BEACH FEDERAL SAVINGS AND LOAN ASSOCIATION.  IT GRANTED
THIS AND OTHER RELIEF ON THE PRINCIPAL GROUND THAT SEC. 5(D) OF THE
HOME OWNERS' LOAN ACT OF 1933, AS AMENDED, VIOLATES ARTICLE I, SECS. 1
AND 8 OF THE CONSTITUTION. 

THE FEDERAL HOME LOAN BANK ADMINISTRATION ON MAY 20, 1946, WITHOUT
NOTICE OR HEARING, APPOINTED AMMANN CONSERVATOR FOR THE ASSOCIATION AND
HE AT ONCE ENTERED INTO POSSESSION.  THE GROUNDS ASSIGNED WERE THAT THE
ASSOCIATION WAS CONDUCTING ITS AFFAIRS IN AN UNLAWFUL, UNAUTHORIZED AND
UNSAFE MANNER, THAT ITS MANAGEMENT WAS UNFIT AND UNSAFE, THAT IT WAS
PURSUING A COURSE INJURIOUS TO, AND JEOPARDIZING THE INTERESTS OF, ITS
MEMBERS, CREDITORS AND THE PUBLIC.  PLAINTIFFS AT ONCE COMMENCED THIS
CLASS ACTION IN THE RIGHT OF THE ASSOCIATION AGAINST THE CONSERVATOR
AND FAHEY, CHAIRMAN OF THE FEDERAL HOME LOAN BANK BOARD, THE
ASSOCIATION AS A NOMINAL DEFENDANT, AND SEVERAL OTHERS NOT IMPORTANT TO
THE ISSUE HERE.  THE COMPLAINT ALLEGED THAT THE CONSERVATOR AND THE
CHAIRMAN HAD SEIZED THE PROPERTY WITHOUT DUE PROCESS OF LAW, MOTIVATED
BY MALICE AND ILL WILL, AND THAT THE SEIZURE FOR VARIOUS REASONS WAS IN
VIOLATION OF THE CONSTITUTION.  IT ASKED RETURN OF THE ASSOCIATION TO
ITS FORMER MANAGEMENT, PERMANENT INJUNCTION AGAINST FURTHER
INTERFERENCE, AND OTHER RELIEF.  OTHER PARTIES IN INTEREST INTERVENED. 
TEMPORARY RESTRAINING ORDERS ISSUED AND A THREE-JUDGE COURT WAS DULY
CONVENED. 

PERSONAL SERVICE WAS SECURED UPON AMMANN, THE CONSERVATOR, BUT FAHEY,
THE FEDERAL HOME LOAN BANK COMMISSIONER, OFFICIALLY AN INHABITANT OF
THE DISTRICT OF COLUMBIA, COULD NOT BE SERVED IN CALIFORNIA.  A MOTION
FOR SUBSTITUTED SERVICE, THEREFORE, WAS GRANTED AND PROCESS WAS SERVED
UPON HIM IN THE DISTRICT OF COLUMBIA.  IT WAS BELIEVED THAT THIS WAS
AUTHORIZED BY JUDICIAL CODE, SEC. 57, 28 U.S.C. SEC. 118.  AMMANN MOVED
TO DISMISS THE COMPLAINT ON THE GROUND THAT IT FAILED TO STATE A CAUSE
OF ACTION.  FAHEY APPEARED SPECIALLY TO MOVE DISMISSAL OR QUASHING
RETURN OF SERVICE ON HIM UPON THE GROUND THAT HE COULD NOT, IN HIS
OFFICIAL CAPACITY, BE SUED IN CALIFORNIA AND HAD NOT BEEN SERVED
PROPERLY WITH PROCESS.  NEITHER HAD ANSWERED THE COMPLAINT, NOR HAD
THEIR TIME TO DO SO EXPIRED, WHEN FINAL JUDGMENT WAS GRANTED AGAINST
THEM. 

THE THREE-JUDGE COURT SET A VARIETY OF PENDING MOTIONS FOR ARGUMENT
AND, AFTER ARGUMENT MAINLY ON THE CONSTITUTIONALITY OF SEC. 5(D), WITH
ONLY PLEADINGS AND MOTION PAPERS BEFORE IT, HELD THE SECTION
UNCONSTITUTIONAL, ORDERED REMOVAL OF THE CONSERVATOR, PERMANENTLY
ENJOINED THE AUTHORITIES FROM HOLDING AN ADMINISTRATIVE HEARING ON THE
MATTER, PERMANENTLY ENJOINED AN APPREHENDED MERGER, RESTORED THE
INSTITUTION TO ITS FORMER MANAGEMENT, ORDERED THE CONSERVATOR TO
ACCOUNT AND ENJOINED THESE AUTHORITIES "FROM EVER ASSERTING ANY CLAIMS,
RIGHT, TITLE OR INTEREST" IN OR TO THE ASSOCIATION'S PROPERTY.  68
F.SUPP.  418.  THE CASE IS HERE ON DIRECT APPEAL.  50 STAT. 752-53, 28
U.S.C. SECS. 349A, 380A. 

IT IS MANIFEST THAT WHATEVER MERIT THERE MAY BE IN VARIOUS SUBSIDIARY
AND COLLATERAL QUESTIONS, THIS DRASTIC DECREE CAN STAND ONLY IF THE

ITS DEFECT IS SAID TO CONSIST OF DELEGATION OF LEGISLATIVE FUNCTIONS
TO THE SUPERVISING AUTHORITY WITHOUT ADEQUATE STANDARDS OF ACTION OR
GUIDES TO POLICY.  SECTION 5(D) OF THE ACT GIVES TO THE BOARD "FULL
POWER TO PROVIDE IN THE RULES AND REGULATIONS HEREIN AUTHORIZED FOR THE
REORGANIZATION, CONSOLIDATION, MERGER, OR LIQUIDATION OF SUCH
ASSOCIATIONS, INCLUDING THE POWER TO APPOINT A CONSERVATOR OR A
RECEIVER TO TAKE CHARGE OF THE AFFAIRS OF ANY SUCH ASSOCIATION, AND TO
REQUIRE AN EQUITABLE READJUSTMENT OF THE CAPITAL STRUCTURE OF THE SAME;
AND TO RELEASE ANY SUCH ASSOCIATION FROM SUCH CONTROL AND PERMIT ITS
FURTHER OPERATION."  48 STAT. 133, 12 U.S.C. SEC. 1464(D).  THIS, THE
DISTRICT COURT HELD, WAS UNCONSTITUTIONAL DELEGATION OF THE
CONGRESSIONAL FUNCTION.  IT RELIED ON PANAMA REFINING CO. V. RYAN, 293
U.S. 388, AND SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495. 

BOTH CITED CASES DEALT WITH DELEGATION OF A POWER TO MAKE FEDERAL
CRIMES OF ACTS THAT NEVER HAD BEEN SUCH BEFORE AND TO DEVISE NOVEL
RULES OF LAW IN A FIELD IN WHICH THERE HAD BEEN NO SETTLED LAW OR
CUSTOM.  THE LATTER CASE ALSO INVOLVED DELEGATION TO PRIVATE GROUPS AS
WELL AS TO PUBLIC AUTHORITIES.  CHIEF JUSTICE HUGHES EMPHASIZED THESE
FEATURES, SAYING THAT THE ACT UNDER EXAMINATION WAS NOT MERELY TO DEAL
WITH PRACTICES "WHICH OFFEND AGAINST EXISTING LAW, AND COULD BE THE
SUBJECT OF JUDICIAL CONDEMNATION WITHOUT FURTHER LEGISLATION, OR TO
CREATE ADMINISTRATIVE MACHINERY FOR THE APPLICATION OF ESTABLISHED
PRINCIPLES OF LAW TO PARTICULAR INSTANCES OF VIOLATION.  RATHER, THE
PURPOSE IS CLEARLY DISCLOSED TO AUTHORIZE NEW AND CONTROLLING
PROHIBITIONS THROUGH CODES OF LAWS WHICH WOULD EMBRACE WHAT THE
FORMULATORS WOULD PROPOSE, AND WHAT THE PRESIDENT WOULD APPROVE, OR
PRESCRIBE, AS WISE AND BENEFICENT MEASURES FOR THE GOVERNMENT OF TRADES
AND INDUSTRIES IN ORDER TO BRING ABOUT THEIR REHABILITATION, CORRECTION
AND DEVELOPMENT, ACCORDING TO THE GENERAL DECLARATION OF POLICY IN

THE SAVINGS AND LOAN ASSOCIATIONS WITH WHICH SEC. 5(D) DEALS, ON THE
OTHER HAND, ARE CREATED, INSURED AND AIDED BY THE FEDERAL GOVERNMENT. 
IT MAY BE THAT EXPLICIT STANDARDS IN THE HOME OWNERS' LOAN ACT WOULD
HAVE BEEN A DESIRABLE ASSURANCE OF RESPONSIBLE ADMINISTRATION.  BUT THE
PROVISIONS OF THE STATUTE UNDER ATTACK ARE NOT PENAL PROVISIONS AS IN
THE CASE OF LANZETTA V. NEW JERSEY, 306 U.S. 451, OR UNITED STATES V.
COHEN GROCERY CO., 255 U.S. 81.  THE PROVISIONS ARE REGULATORY.  THEY
DO NOT DEAL WITH UNPRECEDENTED ECONOMIC PROBLEMS OF VARIED INDUSTRIES. 
THEY DEAL WITH A SINGLE TYPE OF ENTERPRISE AND WITH THE PROBLEMS OF
INSECURITY AND MISMANAGEMENT WHICH ARE AS OLD AS BANKING ENTERPRISE. 
THE REMEDIES WHICH ARE AUTHORIZED ARE NOT NEW ONES UNKNOWN TO EXISTING
LAW TO BE INVENTED BY THE BOARD IN EXERCISE OF A LAWLESS RANGE OF
POWER.  BANKING IS ONE OF THE LONGEST REGULATED AND MOST CLOSELY
SUPERVISED OF PUBLIC CALLINGS.  IT IS ONE IN WHICH ACCUMULATED
EXPERIENCE OF SUPERVISORS, ACTING FOR MANY STATES UNDER VARIOUS
STATUTES, HAS ESTABLISHED WELL-DEFINED PRACTICES FOR THE APPOINTMENT OF
CONSERVATORS, RECEIVERS AND LIQUIDATORS.  CORPORATE MANAGEMENT IS A
FIELD, TOO, IN WHICH COURTS HAVE EXPERIENCE AND MANY PRECEDENTS HAVE
CRYSTALLIZED INTO WELL-KNOWN AND GENERALLY ACCEPTABLE STANDARDS.  A
DISCRETION TO MAKE REGULATIONS TO GUIDE SUPERVISORY ACTION IN SUCH
MATTERS MAY BE CONSTITUTIONALLY PERMISSIBLE WHILE IT MIGHT NOT BE
ALLOWABLE TO AUTHORIZE CREATION OF NEW CRIMES IN UNCHARTED FIELDS. 

THE BOARD ADOPTED RULES AND REGULATIONS GOVERNING APPOINTMENT OF
CONSERVATORS.  THEY PROVIDED THE GROUNDS UPON WHICH A CONSERVATOR MIGHT
BE NAMED,  FN1  AND THEY ARE THE USUAL AND CONVENTIONAL GROUNDS FOUND
IN MOST STATE AND FEDERAL BANKING STATUTES.  FN2  THEY ARE SUFFICIENTLY
EXPLICIT, AGAINST THE BACKGROUND OF CUSTOM, TO BE ADEQUATE FOR PROPER
ADMINISTRATION AND FOR JUDICIAL REVIEW IF THERE SHOULD BE A PROPER
OCCASION FOR IT. 

IT IS COMPLAINED THAT THESE REGULATIONS PROVIDE FOR HEARING AFTER THE
CONSERVATOR TAKES POSSESSION INSTEAD OF BEFORE.  THIS IS A DRASTIC
PROCEDURE.  BUT THE DELICATE NATURE OF THE INSTITUTION AND THE
IMPOSSIBILITY OF PRESERVING CREDIT DURING AN INVESTIGATION HAS MADE IT
AN ALMOST INVARIABLE CUSTOM TO APPLY SUPERVISORY AUTHORITY IN THIS
SUMMARY MANNER.  IT IS A HEAVY RESPONSIBILITY TO BE EXERCISED WITH
DISINTERESTEDNESS AND RESTRAINT, BUT IN THE LIGHT OF THE HISTORY AND
CUSTOMS OF BANKING WE CANNOT SAY IT IS UNCONSTITUTIONAL.  FN3 

IN THIS CASE AN ADMINISTRATIVE HEARING WAS DEMANDED AND
SPECIFICATIONS WERE ASKED AS TO THE CHARGES AGAINST THE MANAGEMENT OF
THE ASSOCIATION.  THE HEARING WAS GRANTED AND A STATEMENT OF COMPLAINTS
AGAINST THE MANAGEMENT WAS FURNISHED. 

THE CAUSES FOR THE APPOINTMENT OF A CONSERVATOR AS THEREIN SET FORTH
BY THE BOARD INCLUDED WITHDRAWALS BY THE PRESIDENT WITHOUT PROPER
VOUCHER THEREFOR; PAYMENT OF SALARIES AND FEES NOT COMMENSURATE WITH
SERVICES RENDERED; A DIRECTOR'S UNLAWFUL REMOVAL OF A CASHIER'S CHECK
IN THE AMOUNT OF $50,000 DURING AN EXAMINATION BY FEDERAL HOME LOAN
BANK EXAMINERS; LEASING PROPERTIES OF THE ASSOCIATION FOR A TWENTY-YEAR
PERIOD ON TERMS WHICH WOULD NOT PROVIDE ADEQUATE CONSIDERATION TO THE
ASSOCIATION; USE OF THE ASSOCIATION FOR PERSONAL GAIN OF ONE OR MORE
OFFICERS AND DIRECTORS; FAILURE TO MAINTAIN PROPER ACCOUNTS AND TO MAKE
PROPER REPORTS; AND FALSIFICATION OF RECORDS.  IT ALSO CHARGED CERTAIN
MANIPULATIONS OF THE AFFAIRS OF ANOTHER INSTITUTION BY THE PRESIDENT OF
THIS INSTITUTION. 

THE PLAINTIFFS NEVERTHELESS DEMANDED AND OBTAINED AN INJUNCTION TO
PREVENT THE ADMINISTRATIVE HEARING AND THEY HAVE THEREFORE CUT OFF THE
MAKING OF A RECORD AS TO WHETHER THESE CHARGES ARE WELL-FOUNDED.  NOR
DID THE TRIAL COURT TAKE EVIDENCE ON THE SUBJECT.  WE MUST ASSUME THAT
THE SUPERVISING AUTHORITIES WOULD BE ABLE TO SUSTAIN THE STATEMENTS OF
FACT AND TO JUSTIFY THE CONCLUSIONS IN THEIR CHARGES FOR THE PURPOSE OF
DETERMINING THE CASE WITHOUT TRIAL.  WE ARE THEREFORE UNABLE TO AGREE
WITH THE COURT BELOW THAT THE SECTION IS INVALID AND HENCE THAT
REGARDLESS OF THE CHARGES THE MANAGEMENT WAS FREE TO GO ON
UNDISCIPLINED AND UNCHECKED. 

BUT EVEN IF THE SECTION WERE DEFECTIVE, WHICH WE THINK IT IS NOT IN A
CONSTITUTIONAL SENSE, ANOTHER OBSTACLE STANDS IN THE WAY OF OUSTING
THIS CONSERVATOR. 

THE LONG BEACH FEDERAL SAVINGS AND LOAN ASSOCIATION WAS ORGANIZED IN
1934 UNDER SEC. 5 OF THE HOME OWNERS' LOAN ACT OF 1933, SUBSECTION (D)
OF WHICH IS NOW SOUGHT TO BE DECLARED UNCONSTITUTIONAL.  THE PRESENT
MANAGEMENT OBTAINED A CHARTER WHICH PROVIDED THAT THE ASSOCIATION
"SHALL AT ALL TIMES BE SUBJECT TO THE PROVISIONS OF THE HOME OWNERS'
LOAN ACT OF 1933, PROVIDING FOR FEDERAL SAVINGS AND LOAN ASSOCIATIONS,
AND TO ANY AMENDMENTS THEREOF, AND TO ANY VALID RULES AND REGULATIONS
MADE THEREUNDER AS THE SAME MAY BE AMENDED FROM TIME TO TIME," AND THAT
IT MIGHT BE "LIQUIDATED, MERGED, CONSOLIDATED, OR REORGANIZED, AS IS
PROVIDED IN THE RULES AND REGULATIONS FOR FEDERAL SAVINGS AND LOAN
ASSOCIATIONS  ...  "  IN 1937, UPON THE ASSOCIATION'S REQUEST, AN
AMENDED CHARTER WAS ISSUED WHICH LIKEWISE PROVIDED THAT THE ASSOCIATION
WAS TO EXERCISE ITS POWERS SUBJECT TO THE HOME OWNERS' LOAN ACT AND
REGULATIONS ISSUED THEREUNDER. 

THIS IS A STOCKHOLDER'S DERIVATIVE ACTION IN WHICH PLAINTIFFS SUE
ONLY IN THE RIGHT OF THE ASSOCIATION.  IT IS AN ELEMENTARY RULE OF
CONSTITUTIONAL LAW THAT ONE MAY NOT "RETAIN THE BENEFITS OF THE ACT
WHILE ATTACKING THE CONSTITUTIONALITY OF ONE OF ITS IMPORTANT
CONDITIONS."  UNITED STATES V. SAN FRANCISCO, 310 U.S. 16, 29.  AS
FORMULATED BY MR. JUSTICE BRANDEIS, CONCURRING IN ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 348, "THE COURT WILL NOT PASS
UPON THE CONSTITUTIONALITY OF A STATUTE AT THE INSTANCE OF ONE WHO HAS
AVAILED HIMSELF OF ITS BENEFITS." 

IN THE NAME AND RIGHT OF THE ASSOCIATION IT IS NOW BEING ASKED THAT
THE ACT UNDER WHICH IT HAS ITS EXISTENCE BE STRUCK DOWN IN IMPORTANT
PARTICULARS, HARDLY SEVERABLE FROM THOSE PROVISIONS WHICH GRANT ITS
RIGHT TO EXIST.  PLAINTIFFS CHALLENGE THE CONSTITUTIONAL VALIDITY OF
THE ONLY PROVISION UNDER WHICH PROCEEDINGS MAY BE TAKEN TO LIQUIDATE OR
CONSERVE THE ASSOCIATION FOR THE PROTECTION OF ITS MEMBERS AND THE
PUBLIC.  IF IT CAN HOLD THE CHARTER THAT IT OBTAINED UNDER THIS ACT AND
STRIKE DOWN THE PROVISION FOR TERMINATING ITS POWERS OR CONSERVING ITS
ASSETS, IT MAY PERPETUALLY GO ON, NOTWITHSTANDING ANY ABUSES WHICH ITS
MANAGEMENT MAY PERPETRATE.  IT WOULD BE INTOLERABLE THAT THE CONGRESS
SHOULD ENDOW AN ASSOCIATION WITH THE RIGHT TO CONDUCT A PUBLIC BANKING
BUSINESS ON CERTAIN LIMITATIONS AND THAT THE COURT AT THE BEHEST OF
THOSE WHO TOOK ADVANTAGE FROM THE PRIVILEGE SHOULD REMOVE THE
LIMITATIONS INTENDED FOR PUBLIC PROTECTION.  IT WOULD BE DIFFICULT TO
IMAGINE A MORE APPROPRIATE SITUATION IN WHICH TO APPLY THE DOCTRINE
THAT ONE WHO UTILIZES AN ACT TO GAIN ADVANTAGES OF CORPORATE EXISTENCE
IS ESTOPPED FROM QUESTIONING THE VALIDITY OF ITS VITAL CONDITIONS.  WE
HOLD THAT PLAINTIFFS ARE ESTOPPED, AS THE ASSOCIATION WOULD BE, FROM
CHALLENGING THE PROVISIONS OF THE ACT WHICH AUTHORIZE THE BOARD TO
PRESCRIBE THE TERMS AND CONDITIONS UPON WHICH A CONSERVATOR MAY BE
NAMED.    THERE ARE OTHER IMPORTANT AND DIFFICULT QUESTIONS RAISED IN
THE CASE WHICH IT BECOMES UNNECESSARY TO DECIDE. 

OBJECTION IS MADE TO THE ADMINISTRATIVE HEARING UPON THE GROUND THAT
IT IS BEFORE THE SAME AUTHORITY WHICH HAS PREFERRED THE CHARGES AND
THAT IT CANNOT BE EXPECTED, THEREFORE, TO BE FAIR AND IMPARTIAL AND
THAT THE ACT DOES NOT PROVIDE FOR JUDICIAL REVIEW OF THE BOARD'S
DETERMINATION ON THE HEARING.  WE CANNOT AGREE THAT COURTS SHOULD
ASSUME IN ADVANCE THAT AN ADMINISTRATIVE HEARING MAY NOT BE FAIRLY
CONDUCTED.  WE DO NOT NOW DECIDE WHETHER THE DETERMINATION OF THE BOARD
IN SUCH PROCEEDING IS SUBJECT TO ANY MANNER OF JUDICIAL REVIEW.  THE
ABSENCE FROM THE STATUTE OF A PROVISION FOR COURT REVIEW HAS SOMETIMES
BEEN HELD NOT TO FORECLOSE REVIEW.  STARK V. WICKARD, 321 U.S. 288;
FEDERAL RESERVE BOARD V. AGNEW, 329 U.S. 441; ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C.A. SEC. 1009.  NOR DO WE MEAN TO BE UNDERSTOOD THAT IF
SUPERVISING AUTHORITIES MALICIOUSLY, WANTONLY AND WITHOUT CAUSE DESTROY
THE CREDIT OF A FINANCIAL INSTITUTION, THERE ARE NOT REMEDIES. 

ONE OF THE ALLEGATIONS OF THE COMPLAINT IS THAT IT WAS INTENDED THAT
THIS INSTITUTION WOULD BE MERGED WITH OTHER INSTITUTIONS TO THE INJURY
OF ITS SHAREHOLDERS.  THE ALLEGATION SEEMS TO BE BASED ON THE FACT THAT
A DIFFERENT INSTITUTION WITH WHICH THE MANAGEMENT OF THE LONG BEACH
INSTITUTION WAS CONNECTED WAS MERGED BY THE AUTHORITIES IN A WAY THAT
WAS HIGHLY OBJECTIONABLE TO SOME OF THE SHAREHOLDERS AND AROUSED
CONCERN OF THE PUBLIC AUTHORITIES.  WE FIND NO EXPLICIT THREAT TO MERGE
THE LONG BEACH INSTITUTION AND THERE IS NO SUCH FINDING BY THE COURT
BELOW.  THE GOVERNMENT HAS ASSURED US AT THE BAR THAT THERE IS NO PLAN
FOR SUCH A MERGER IN CONTEMPLATION.  NEVERTHELESS, SUCH A MERGER WAS
ENJOINED.  IN VIEW OF THE ABSENCE OF A FINDING OF THE THREAT OR OF
EVIDENCE TO SUSTAIN ONE, WE ACCEPT THE GOVERNMENT'S ASSURANCE THAT
MERGER WILL NOT FOLLOW AND, HENCE, WE DO NOT CONSIDER IT NECESSARY TO
DISCUSS THE LEGALITY OF HYPOTHETICAL MERGERS. 

SINCE THE JUDGMENT THAT HAS BEEN RENDERED AGAINST THE CONSERVATOR,
WHO WAS DULY SERVED WITH PROCESS, MUST BE REVERSED, WE FIND IT
UNNECESSARY TO DECIDE WHETHER FAHEY WAS AN INDISPENSABLE PARTY OR WAS
PROPERLY BROUGHT INTO THE CASE BY SUBSTITUTED SERVICE. 

IT IS OBVIOUS THAT THERE IS MORE TO THIS LITIGATION THAN MEETS THE
EYE ON THE PLEADINGS.  THE PLAINTIFFS' CHARGES THAT ILL WILL AND MALICE
ACTUATED THE SUPERVISING AUTHORITIES, AS WELL AS THE CHARGES OF THE
DEFENDANTS THAT THE INSTITUTION HAS BEEN MISMANAGED AND THAT THE
MANAGEMENT IS UNFIT, ARE ALIKE UNDETERMINED BY THE COURTS BELOW, AND WE
MAKE NO DETERMINATION OR INTIMATION CONCERNING THE MERITS OF THESE
ISSUES OR AS TO OTHER REMEDIES OR RELIEF THAN THAT IN THE JUDGMENT
BEFORE US. 

OUR DECISION IS THAT IT WAS ERROR IN THE COURT BELOW TO HOLD THE
HIS PROCEEDINGS OR TO ENJOIN THE ADMINISTRATIVE HEARING, AND THIS
WITHOUT PREJUDICE TO ANY OTHER ADMINISTRATIVE OR JUDICIAL PROCEEDINGS
WHICH MAY BE WARRANTED BY LAW.  THE JUDGMENT IS REVERSED. 

FN1  THE RULES AND REGULATIONS FOR THE FEDERAL SAVINGS AND LOAN
SYSTEM PROVIDE IN PART AS FOLLOWS:

         PART 206.  APPOINTMENT OF CONSERVATOR OR RECEIVER. 

SEC. 206.1.  RECEIVER OR CONSERVATOR; APPOINTMENT.  (A) WHENEVER, IN
THE OPINION OF THE FEDERAL HOME LOAN BANK ADMINISTRATION, ANY FEDERAL
SAVINGS AND LOAN ASSOCIATION: 

(1)  IS CONDUCTING ITS BUSINESS IN AN UNLAWFUL, UNAUTHORIZED, OR
UNSAFE MANNER; 

(2)  IS IN AN UNSOUND OR UNSAFE CONDITION, OR HAS A MANAGEMENT WHICH
IS UNSAFE OR UNFIT TO MANAGE A FEDERAL SAVINGS AND LOAN ASSOCIATION; 

(3)  CANNOT WITH SAFETY CONTINUE IN BUSINESS; 

(4)  IS IMPAIRED IN THAT ITS ASSETS DO NOT HAVE AN AGGREGATE VALUE
(IN THE JUDGMENT OF THE FEDERAL HOME LOAN BANK ADMINISTRATION) AT LEAST
EQUAL TO THE AGGREGATE AMOUNT OF ITS LIABILITIES TO ITS CREDITORS,
MEMBERS, AND ALL OTHER PERSONS; 

(5)  IS IN IMMINENT DANGER OF BECOMING IMPAIRED; 

(6)  IS PURSUING A COURSE THAT IS JEOPARDIZING OR INJURIOUS TO THE
INTERESTS OF ITS MEMBERS, CREDITORS, OR THE PUBLIC; 

(7)  HAS SUSPENDED PAYMENT OF ITS OBLIGATIONS; 

(8)  HAS REFUSED TO SUBMIT ITS BOOKS, PAPERS, RECORDS, OR AFFAIRS FOR
INSPECTION TO ANY EXAMINER OR LAWFUL AGENT APPOINTED BY THE FEDERAL
HOME LOAN BANK ADMINISTRATION; 

(9)  HAS REFUSED BY THE REFUSAL OF ANY OF ITS OFFICERS, DIRECTORS, OR
EMPLOYEES TO BE EXAMINED UPON OATH BY THE FEDERAL HOME LOAN BANK
ADMINISTRATION OR ITS REPRESENTATIVE CONCERNING ITS AFFAIRS; OR 

(10)  HAS REFUSED OR FAILED TO OBSERVE A LAWFUL ORDER OF THE FEDERAL
HOME LOAN BANK ADMINISTRATION, THE FEDERAL HOME LOAN BANK
ADMINISTRATION MAY APPOINT THE FEDERAL SAVINGS AND LOAN INSURANCE
CORPORATION RECEIVER FOR SUCH FEDERAL ASSOCIATION, WHICH APPOINTMENT
SHALL BE FOR THE PURPOSE OF LIQUIDATION, OR THE FEDERAL HOME LOAN BANK
ADMINISTRATION MAY APPOINT A CONSERVATOR FOR SUCH FEDERAL ASSOCIATION
TO CONSERVE THE ASSETS OF THE ASSOCIATION PENDING FURTHER DISPOSITION
OF ITS AFFAIRS.  THE APPOINTMENT SHALL BE BY ORDER, WHICH ORDER SHALL
STATE ON WHICH OF THE ABOVE CAUSES THE APPOINTMENT IS BASED.  ANY
CONSERVATOR SO APPOINTED SHALL FURNISH BOND FOR HIMSELF AND HIS
EMPLOYEES, IN FORM AND AMOUNT AND WITH SURETY ACCEPTABLE TO THE
GOVERNOR OF THE FEDERAL HOME LOAN BANK SYSTEM, OR ANY DEPUTY OR
ASSISTANT GOVERNOR, BUT NO BOND SHALL BE REQUIRED OF THE FEDERAL
SAVINGS AND LOAN INSURANCE CORPORATION AS RECEIVER.  THE CONSERVATOR OR
RECEIVER SHALL FORTHWITH UPON APPOINTMENT TAKE POSSESSION OF THE
ASSOCIATION AND, AT THE TIME SUCH CONSERVATOR OR RECEIVER SHALL DEMAND
POSSESSION, SUCH CONSERVATOR OR RECEIVER SHALL NOTIFY THE OFFICER OR
EMPLOYEE OF THE ASSOCIATION, IF ANY, WHO SHALL BE IN THE HOME OFFICE OF
THE ASSOCIATION AND APPEAR TO BE IN CHARGE OF SUCH OFFICE, OF THE
ACTION OF THE FEDERAL HOME LOAN BANK ADMINISTRATION.  THE SECRETARY OF
THE FEDERAL HOME LOAN BANK ADMINISTRATION SHALL, FORTHWITH UPON
ADOPTION THEREOF, MAIL A CERTIFIED COPY OF THE ORDER OF APPOINTMENT TO
THE ADDRESS OF THE ASSOCIATION AS IT SHALL APPEAR ON THE RECORDS OF THE
FEDERAL HOME LOAN BANK ADMINISTRATION AND TO EACH DIRECTOR OF THE
ASSOCIATION, KNOWN BY THE SECRETARY TO BE SUCH, AT THE LAST ADDRESS OF
EACH AS THE SAME SHALL APPEAR ON THE RECORDS OF THE FEDERAL HOME LOAN
BANK ADMINISTRATION.  IF SUCH CERTIFIED COPY OF THE ORDER APPOINTING
THE CONSERVATOR OR RECEIVER IS RECEIVED AT THE OFFICES OF THE
ASSOCIATION AFTER THE TAKING OF POSSESSION BY THE CONSERVATOR OR
RECEIVER, SUCH CONSERVATOR OR RECEIVER SHALL HAND THE SAME TO ANY
OFFICER OR DIRECTOR OF THE ASSOCIATION WHO MAY MAKE DEMAND THEREFOR. 

SEC. 206.2.  HEARING ON APPOINTMENT.  WITHIN FOURTEEN DAYS (SUNDAYS
AND HOLIDAYS INCLUDED) AFTER THE APPOINTMENT OF A CONSERVATOR OR
RECEIVER FOR A FEDERAL ASSOCIATION NOT AT THE TIME OF SUCH APPOINTMENT
IN THE HANDS OF A CONSERVATOR, SUCH FEDERAL ASSOCIATION, WHICH HAS NOT,
BY ITS BOARD OF DIRECTORS, CONSENTED TO OR REQUESTED THE APPOINTMENT OF
A CONSERVATOR OR RECEIVER, MAY FILE AN ANSWER AND SERVE A WRITTEN
DEMAND FOR A HEARING, AUTHORIZED BY ITS BOARD OF DIRECTORS, WHICH
DEMAND SHALL STATE THE ADDRESS TO WHICH NOTICE OF HEARING SHALL BE
SENT.  UPON RECEIPT OF SUCH ANSWER AND WRITTEN DEMAND FOR A HEARING THE
FEDERAL HOME LOAN BANK ADMINISTRATION SHALL ISSUE AND SERVE A NOTICE OF
HEARING UPON THE INSTITUTION BY MAILING A COPY OF THE ORDER OF HEARING
TO THE ADDRESS STATED IN THE DEMAND THEREFOR AND SHALL CONDUCT A
HEARING, AT WHICH TIME AND PLACE THE FEDERAL ASSOCIATION MAY APPEAR AND
SHOW CAUSE WHY THE CONSERVATOR OR RECEIVER SHOULD NOT HAVE BEEN
APPOINTED AND WHY AN ORDER SHOULD BE ENTERED BY THE FEDERAL HOME LOAN
BANK ADMINISTRATION DISCHARGING THE CONSERVATOR OR RECEIVER.  SUCH
HEARING SHALL BE HELD EITHER IN THE DISTRICT OF THE FEDERAL HOME LOAN
BANK OF WHICH SUCH FEDERAL ASSOCIATION IS A MEMBER OR IN WASHINGTON,
D.C., AS THE FEDERAL HOME LOAN BANK ADMINISTRATION SHALL DETERMINE,
UNLESS THE ASSOCIATION OTHERWISE CONSENTS IN WRITING.  SUCH HEARING MAY
BE HELD BEFORE THE FEDERAL HOME LOAN BANK COMMISSIONER OR BEFORE A
TRIAL EXAMINER OR HEARING OFFICER, AS THE FEDERAL HOME LOAN BANK
ADMINISTRATION SHALL DETERMINE.  SUCH FEDERAL ASSOCIATION, WHICH HAS
NOT, BY ITS BOARD OF DIRECTORS, CONSENTED TO OR REQUESTED THE
APPOINTMENT OF A CONSERVATOR OR RECEIVER, MAY, WITHIN SEVEN DAYS
(SUNDAYS AND HOLIDAYS INCLUDED) OF SUCH APPOINTMENT, SERVE A WRITTEN OR
TELEGRAPHIC DEMAND, AUTHORIZED BY ITS BOARD OF DIRECTORS, UPON THE
FEDERAL HOME LOAN BANK ADMINISTRATION FOR A MORE DEFINITE STATEMENT OF
THE CAUSE OR CAUSES FOR THE ACTION.  THE TIME OF SERVICE UPON THE
FEDERAL HOME LOAN BANK ADMINISTRATION FOR THE PURPOSES OF THIS SECTION
SHALL BE THE TIME OF RECEIPT BY THE SECRETARY OF THE FEDERAL HOME LOAN
BANK ADMINISTRATION. 

SEC. 206.4.  DISCHARGE OF CONSERVATOR OR RECEIVER.  AN ORDER OF THE
FEDERAL HOME LOAN BANK ADMINISTRATION DISCHARGING A CONSERVATOR AND
RETURNING THE ASSOCIATION TO ITS MANAGEMENT SHALL RESTORE TO SUCH
FEDERAL ASSOCIATION ALL ITS RIGHTS, POWERS AND PRIVILEGES AND SHALL
RESTORE THE RIGHTS, POWERS AND PRIVILEGES OF ITS OFFICERS AND
DIRECTORS, ALL AS OF THE TIME SPECIFIED IN SUCH ORDER, EXCEPT AS SUCH
ORDER MAY OTHERWISE PROVIDE.  AN ORDER OF THE FEDERAL HOME LOAN BANK
ADMINISTRATION DISCHARGING A RECEIVER AND RETURNING THE ASSOCIATION TO
ITS MANAGEMENT SHALL BY OPERATION OF LAW AND WITHOUT ANY CONVEYANCE OR
OTHER INSTRUMENT, ACT OR DEED, RESTORE TO SUCH FEDERAL ASSOCIATION ALL
ITS RIGHTS, POWERS AND PRIVILEGES, REVEST IN SUCH FEDERAL ASSOCIATION
THE TITLE TO ALL ITS PROPERTY, AND RESTORE THE RIGHTS, POWERS AND
PRIVILEGES OF ITS OFFICERS AND DIRECTORS, ALL AS OF THE TIME SPECIFIED
IN SUCH ORDER, EXCEPT AS SUCH ORDER MAY OTHERWISE PROVIDE.  24 C.F.R.
CUM. SUPP. SEC. 206.1 ET SEQ., AS AMENDED, 24 C.F.R. 1943 SUPP. SEC.
206.1. 

FN2  BANK CONSERVATION ACT OF MARCH 9, 1933, SEC. 203, 48 STAT. 2-3,
12 U.S.C. SEC. 203; BANKING ACT OF 1933, SEC. 31, 48 STAT. 194, 12
U.S.C. SEC. 71A; NATIONAL HOUSING ACT, SEC. 406, 48 STAT. 1259-60, 12
U.S.C. SEC. 1729.  E.G., NEW YORK BANKING LAW, SEC. 606, 4 MCKINNEY'S
CONSOLIDATED LAWS OF NEW YORK, PP. 708-709, (POCKET PART, 1946) 125-26;
PAGE'S OHIO GENERAL CODE ANN., SEC. 687; 1 DEERING'S CALIFORNIA GENERAL
LAWS, ACT 986, SEC. 13.11; MASSACHUSETTS LAWS ANN. C. 167, SEC. 22; C.
170B, SEC. 4; JONES ILLINOIS STAT. ANN., SEC. 14.40. 

FN3  SEE NOTE 2. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT AND IN THE COURT'S OPINION
INSOFAR AS IT RESTS UPON THE GROUND THAT THE CONTROLLING STATUTE, SEC.
5(D) OF THE HOME OWNERS' LOAN ACT OF 1933, IS NOT UNCONSTITUTIONAL. 
..END :







EX PARTE FAHEY, 332 U.S. 258 


NO. 133, MISC.  ARGUED APRIL 30, 1947.  - DECIDED JUNE 23, 1947. 


MANDAMUS, PROHIBITION AND INJUNCTION AGAINST JUDGES ARE EXTRAORDINARY
REMEDIES WHICH SHOULD BE RESERVED FOR REALLY EXTRAORDINARY CASES; AND
THIS COURT WILL NOT COUNTENANCE THEIR USE AS SUBSTITUTES FOR AN
APPEAL.  PP. 259-260. 

EX PARTE FAHEY, FEDERAL HOME LOAN BANK COMMISSIONER, ET AL. 

PETITION INVOKING THE ORIGINAL JURISDICTION OF THIS COURT AND ASKING
LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS, PROHIBITION OR INJUNCTION
AGAINST A DISTRICT JUDGE TO VACATE HIS ORDER ALLOWING FEES TO COUNSEL
IN FAHEY V. MALLONEE, ANTE, P. 245, TO PROHIBIT ANY FURTHER ALLOWANCE
THEREIN AND TO ENJOIN ANY PAYMENTS HERETOFORE ALLOWED, DENIED, P. 260. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS PETITION BY JOHN H. FAHEY, INDIVIDUALLY AND AS FEDERAL HOME LOAN
BANK COMMISSIONER, AND A.V. AMMANN, INDIVIDUALLY AND AS CONSERVATOR FOR
THE LONG BEACH FEDERAL SAVINGS AND LOAN ASSOCIATION, INVOKES THE
ORIGINAL JURISDICTION OF THIS COURT.  THEY ASK LEAVE TO FILE PETITION
FOR A WRIT OF "MANDAMUS AND/OR PROHIBITION AND/OR INJUNCTION" AGAINST
JUDGE PEIRSON M. HALL OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA TO VACATE HIS ORDER ALLOWING FEES TO
COUNSEL IN FAHEY V. MALLONEE, DECIDED TODAY, ANTE, P. 245, TO PROHIBIT
ANY FURTHER ALLOWANCE THEREIN, AND TO ENJOIN ANY PAYMENTS HERETOFORE
ALLOWED. 

WHILE AN APPEAL IN THE PRINCIPAL CASE WAS PENDING IN THIS COURT,
APPLICATION WAS MADE BY VARIOUS COUNSEL FOR THE PLAINTIFFS AND
ASSOCIATED INTERESTS THEREIN FOR ALLOWANCE OF FEES AGGREGATING SOME
$125,000.  THE DISTRICT COURT ALLOWED COUNSEL FOR PLAINTIFFS $50,000 AS
A PARTIAL PAYMENT ON ACCOUNT OF SERVICES, BUT WITHHELD ACTION ON OTHER
APPLICATIONS.  CERTAIN COSTS AND EXPENSES OF THE PLAINTIFFS IN THE
AMOUNT OF $17,295.13 WERE ALSO ORDERED REIMBURSED. 

THE PETITION INVOLVES SERIOUS QUESTIONS OF LAW AND OF FACT.  WHETHER,
BECAUSE OF THE PENDENCY OF THE APPEAL AND THE STAY ORDER GRANTED
THEREIN, THE DISTRICT COURT HAD POWER TO ENTERTAIN THE APPLICATION,
WHETHER BEFORE THE FINAL OUTCOME OF THE CASE COULD BE KNOWN AN
ALLOWANCE WAS PREMATURE, WHETHER THE SOURCE OF THE FUND ON DEPOSIT WITH
THE COURT WAS SO RELATED TO THE SERVICES AS TO BE SUBJECT TO
DISBURSEMENT FOR THEIR COMPENSATION, AND WHETHER ONE JUDGE CAN MAKE
ALLOWANCES IN A CASE BEFORE A THREE-JUDGE COURT, ARE, WITH OTHER
QUESTIONS, MUCH CONTESTED.  WE DO NOT DECIDE ANY QUESTION AS TO THE
MERITS. 

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.  WE
ARE UNWILLING TO UTILIZE THEM AS SUBSTITUTES FOR APPEALS.  AS
EXTRAORDINARY REMEDIES, THEY ARE RESERVED FOR REALLY EXTRAORDINARY
CAUSES. 

WE FIND NOTHING IN THIS CASE TO WARRANT THEIR USE.  AN ALLOWANCE OF
$50,000 WILL HARDLY DESTROY A TWENTY-SIX-MILLION-DOLLAR ASSOCIATION
DURING THE TIME IT WOULD TAKE TO PROSECUTE AN APPEAL.  THE STATUS OF
ONE OF THE APPLICANTS IN THE PRINCIPAL CASE IS NOW SETTLED SO THAT HE
HAS STANDING TO TAKE ALL AUTHORIZED APPEALS.  WE HOLD THAT THE
APPLICANTS' GRIEVANCE IS ONE TO BE PURSUED BY APPEAL AT THE PROPER TIME
AND TO THE APPROPRIATE COURT, RATHER THAN BY RESORT TO OUR ORIGINAL
JURISDICTION FOR EXTRAORDINARY WRITS. 

THE PETITION IS DENIED. 
..END :




FAY V. NEW YORK, 332 U.S. 261 


ARGUED APRIL 3, 1947.  - DECIDED JUNE 23, 1947.  - 296 N.Y. 510, 68
N.E.2D 453, AFFIRMED. 


1.  NEW YORK JUDICIARY LAW SEC. 749-AA, 29 MCKINNEY'S L.N.Y., PP. 511
515, PROVIDING FOR THE ADMINISTRATIVE SELECTION OF A SPECIAL OR "BLUE
RIBBON" JURY PANEL FROM THE GENERAL JURY PANEL IN COUNTIES OF ONE
MILLION OR MORE INHABITANTS AND THE USE IN CERTAIN CLASSES OF CASES OF
JURIES DRAWN FROM THIS SPECIAL PANEL, DOES NOT ON ITS FACE DENY
DEFENDANTS IN CRIMINAL CASES DUE PROCESS OF LAW OR EQUAL PROTECTION OF
THE LAWS CONTRARY TO THE FOURTEENTH AMENDMENT.  PP. 270-272. 

(A)  THIS COURT CANNOT FIND IT CONSTITUTIONALLY FORBIDDEN TO SET UP
IN A METROPOLIS WITH CONGESTED COURT CALENDARS ADMINISTRATIVE
PROCEDURES IN ADVANCE OF TRIAL TO ELIMINATE FROM THE JURY PANEL THOSE
WHO, IN A LARGE PROPORTION OF CASES, WOULD BE REJECTED BY THE COURT
AFTER ITS TIME HAD BEEN TAKEN IN EXAMINATION TO ASCERTAIN THE
DISQUALIFICATIONS.  P. 271. 

(B)  THESE ARE LOCAL MATTERS WITH WHICH LOCAL AUTHORITY MUST AND DOES
HAVE CONSIDERABLE LATITUDE TO COPE, FOR THEY AFFECT THE ADMINISTRATION
OF JUSTICE WHICH IS A LOCAL RESPONSIBILITY.  P. 271. 

(C)  THERE IS NOTHING IN THE STANDARDS PRESCRIBED FOR THE SELECTION
OF THE SPECIAL PANEL WHICH, ON ITS FACE, IS PROHIBITED BY THE
CONSTITUTION.  PP. 267-268, 270-272. 

2.  PETITIONERS HAVE NOT SUSTAINED THE BURDEN OF SHOWING THAT THEIR
TRIAL BY A JURY DRAWN FROM SUCH A SPECIAL PANEL DENIED THEM EQUAL
PROTECTION OF THE LAWS.  PP. 272-286. 

(A)  IT IS NOT PROVEN THAT LABORERS, OPERATIVES, CRAFTSMEN, FOREMEN
AND SERVICE EMPLOYEES WERE SYSTEMATICALLY, INTENTIONALLY AND
DELIBERATELY EXCLUDED FROM THE SPECIAL PANEL.  PP. 273-277. 

(B)  NOR IS IT PROVEN THAT WOMEN WERE SO EXCLUDED - ESPECIALLY IN
VIEW OF THE FACT THAT THREE WOMEN TALESMEN WERE EXAMINED AND ONE SERVED
ON THE JURY IN THIS CASE.  PP. 277-278. 

(C)  THE ELIMINATION FROM THE SPECIAL PANEL OF PERSONS WHO, IN
REPLYING TO A QUESTIONNAIRE, EXPRESSED A PREFERENCE TO SERVE DURING
CERTAIN MONTHS IS OF NO CONSTITUTIONAL SIGNIFICANCE AND OF NO PREJUDICE
TO PETITIONERS.  P. 278. 

(D)  PETITIONERS HAVE NOT SUSTAINED THE BURDEN OF PROVING THAT IN
1945, WHEN THEY WERE TRIED, THE SPECIAL PANEL WAS SO COMPOSED AS TO BE
MORE PRONE TO CONVICT THAN THE GENERAL PANEL.  PP. 278-286. 

3.  THE STATUTE PROVIDING FOR THE SPECIAL JURY DOES NOT VIOLATE THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  GLASSER V. UNITED
STATES, 315 U.S. 60; THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217;
BALLARD V. UNITED STATES, 329 U.S. 187, DISTINGUISHED.  PP. 286-296. 

(A)  THERE BEING NO CONSTITUTIONAL REQUIREMENT THAT JURIES SHALL
INCLUDE WOMEN, THEIR PARTIAL EXCLUSION FROM THE GENERAL AND SPECIAL
JURY PANELS (BY MAKING THEIR SERVICE VOLUNTARY INSTEAD OF COMPULSORY)
WAS NOT A DENIAL OF DUE PROCESS.  PP. 289-290. 

(B)  A LACK OF PROPORTIONAL REPRESENTATION OF AN ECONOMIC CLASS
COMPRISING LABORERS, CRAFTSMEN AND SERVICE EMPLOYEES, WHICH DOES NOT
RESULT FROM AN INTENTIONAL AND PURPOSEFUL EXCLUSION OF ANY CLASS BUT
FROM TESTS OF INTELLIGENCE, CITIZENSHIP AND UNDERSTANDING OF ENGLISH
APPLIED ALIKE TO ALL PROSPECTIVE JURORS, DOES NOT VIOLATE THE DUE
PROCESS CLAUSE.  PP. 290-294. 

4.  IN CONSIDERING WHETHER THE STATUTE IS ADMINISTERED SO AS TO
PRODUCE UNCONSTITUTIONAL RESULTS, THIS COURT MUST EXAMINE THE EVIDENCE
AND REACH ITS OWN CONCLUSIONS AS TO THE FACTS.  P. 272. 

5.  SINCE CONGRESS HAS CONSIDERED THE SPECIFIC APPLICATION OF THE
FOURTEENTH AMENDMENT TO THE STATE JURY SYSTEMS AND HAS FOUND ONLY
DISCRIMINATIONS ON ACCOUNT OF "RACE, COLOR, OR PREVIOUS CONDITION OF
SERVITUDE" TO DESERVE GENERAL LEGISLATIVE CONDEMNATION (8 U.S.C. SEC.
44), ONE WHO WOULD HAVE THE JUDICIARY INTERVENE ON OTHER GROUNDS MUST
COMPLY WITH THE EXACTING REQUIREMENTS OF PROVING CLEARLY THAT IN HIS
OWN CASE THE PROCEDURE HAS GONE SO FAR AFIELD THAT ITS RESULTS ARE A
DENIAL OF EQUAL PROTECTION OR DUE PROCESS.  PP. 282-284. 

6.  IT IS FUNDAMENTAL IN QUESTIONING THE COMPOSITION OF A JURY THAT A
MERE SHOWING THAT A CLASS WAS NOT REPRESENTED IN A PARTICULAR JURY IS
NOT ENOUGH; THERE MUST BE A CLEAR SHOWING THAT ITS ABSENCE WAS CAUSED
BY DISCRIMINATION.  P. 284. 

7.  WHEN DISCRIMINATION OF AN UNCONSTITUTIONAL KIND IN THE SELECTION
OF A JURY IS ALLEGED, THE BURDEN OF PROVING IT PURPOSEFUL AND
INTENTIONAL IS ON THE DEFENDANT.  P. 285. 

8.  IN CONSIDERING WHETHER THE METHOD OF SELECTING A JURY VIOLATES
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, THE INQUIRY IS
WHETHER DEFENDANTS RECEIVED LESS FAVORABLE TREATMENT THAN OTHERS.  P.
285. 

9.  THIS COURT MAY EXERT A SUPERVISORY POWER OVER FEDERAL PROCEEDINGS
WITH GREATER FREEDOM TO REFLECT ITS NOTIONS OF GOOD POLICY THAN IT MAY
CONSTITUTIONALLY EXERT OVER PROCEEDINGS IN STATE COURTS, AND THESE
EXPRESSIONS OF POLICY ARE NOT NECESSARILY EMBODIED IN THE CONCEPT OF
DUE PROCESS.  P. 287. 

10.  THE COMMANDMENTS OF THE SIXTH AND SEVENTH AMENDMENTS, WHICH
REQUIRE JURY TRIAL IN CRIMINAL AND CERTAIN CIVIL CASES, ARE NOT MADE
APPLICABLE TO THE STATES BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  P. 288. 

11.  DUE PROCESS REQUIRES A REAL HEARING BY A TRIBUNAL UNBIASED BY
INTEREST IN THE EVENT; BUT AN ACCUSED IS NOT ENTITLED TO A SET-UP THAT
WILL GIVE A CHANCE OF ESCAPE AFTER HE IS PROPERLY PROVEN GUILTY.  HE
HAS NO CONSTITUTIONAL RIGHT TO FRIENDS ON THE JURY.  PP. 288-289. 

12.  THE STATE'S RIGHT TO APPLY TESTS OF INTELLIGENCE, CITIZENSHIP
AND UNDERSTANDING OF ENGLISH IN SELECTING JURORS IS NOT OPEN TO DOUBT,
EVEN THOUGH THEY DISQUALIFY A DISPROPORTIONATE NUMBER OF MANUAL
WORKERS.  P. 291. 

13.  THIS COURT IS UNABLE TO SAY THAT MERE EXCLUSION OF JURORS OF
ONE'S OCCUPATION RENDERS A JURY UNCONSTITUTIONAL, EVEN THOUGH THE
OCCUPATION TENDS TO GIVE THOSE WHO PRACTICE IT A PARTICULAR AND
DISTINCTIVE VIEWPOINT.  P. 292, N. 35. 

14.  THERE IS SOME DISCRETION LEFT IN THE STATES TO SAY THAT PERSONS
IN SOME OCCUPATIONS ARE MORE NEEDED AT THEIR WORK THAN ON JURY DUTY
AND, PERHAPS, THAT SOME HAVE OCCUPATIONAL ATTITUDES THAT MAKE IT
APPROPRIATE TO LEAVE THEM OFF THE LIST SO LONG AS AN UNEXCEPTIONABLE
LIST REMAINS ON CALL.  P. 292, N. 35. 

15.  THE FUNCTION OF THIS COURT UNDER THE FOURTEENTH AMENDMENT WITH
REFERENCE TO STATE JURIES IS NOT TO PRESCRIBE PROCEDURES BUT IS
ESSENTIALLY TO PROTECT THE INTEGRITY OF THE TRIAL PROCESS BY WHATEVER
METHOD THE STATE SEES FIT TO EMPLOY.  P. 294. 

16.  BEYOND REQUIRING CONFORMITY TO STANDARDS OF FUNDAMENTAL FAIRNESS
THAT HAVE WON LEGAL RECOGNITION, THIS COURT ADHERES TO A POLICY OF SELF
RESTRAINT IN INTERPRETING THE FOURTEENTH AMENDMENT AND WILL NOT USE
THAT AMENDMENT TO IMPOSE UNIFORM PROCEDURES UPON THE SEVERAL STATES,
WHOSE LEGAL SYSTEMS STEM FROM DIVERSE SOURCES OF LAW AND REFLECT
DIFFERENT HISTORICAL INFLUENCES.  PP. 294-295. 

17.  NO VIOLATION OF A FEDERAL STATUTE BEING ALLEGED, A SUCCESSFUL
CHALLENGE TO THIS JUDGMENT UNDER THE DUE PROCESS CLAUSE DEPENDS ON A
SHOWING THAT THESE DEFENDANTS HAVE HAD A TRIAL SO UNFAIR AS TO AMOUNT
TO A TAKING OF THEIR LIBERTY WITHOUT DUE PROCESS OF LAW; AND SUCH A
SHOWING HAS NOT BEEN MADE.  P. 296. 

FAY V. NEW YORK. 

NO. 377.  CERTIORARI TO THE COURT OF APPEALS OF NEW YORK* . 

*TOGETHER WITH NO. 452, BOVE V. NEW YORK, ALSO ON CERTIORARI TO THE
SAME COURT. 

IN A STATE COURT IN NEW YORK COUNTY, A SPECIAL OR SO-CALLED "BLUE
RIBBON" JURY IMPANELED PURSUANT TO N.Y. JUDICIARY LAW SEC. 749-AA, 29
MCKINNEY L.N.Y., PP. 511-15, 15, CONVICTED PETITIONERS OF EXTORTION AND
CONSPIRACY TO EXTORT.  THE APPELLATE DIVISION OF THE SUPREME COURT OF
NEW YORK AFFIRMED.  270 APP. DIV. 261, 59 N.Y.S.2D 127.  THE COURT OF
APPEALS OF NEW YORK AFFIRMED.  296 N.Y. 510, 68 N.E.2D 453.  THIS COURT
GRANTED CERTIORARI.  329 U.S. 697.  AFFIRMED, P. 296. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT THE SAME ISSUE, A CHALLENGE TO THE
CONSTITUTIONALITY OF THE SPECIAL OR SO-CALLED "BLUE RIBBON" JURY AS
USED BY STATE COURTS IN THE STATE AND COUNTY OF NEW YORK. 

SUCH A JURY FOUND FAY AND BOVE GUILTY OF CONSPIRACY TO EXTORT AND OF
EXTORTION.  BOVE WAS VICE-PRESIDENT OF THE INTERNATIONAL HOD CARRIERS,
BUILDING AND COMMON LABORERS' UNION OF AMERICA.  FAY WAS VICE-PRESIDENT
OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS.  THE CITY OF NEW
YORK AWARDED CONTRACTS FOR CONSTRUCTION OF AN EXTENSIVE PROJECT KNOWN
AS THE DELAWARE WATER SUPPLY SYSTEM TO SEVERAL LARGE CONSTRUCTION
CONCERNS.  IT WAS NOT DENIED THAT FAY AND BOVE COLLECTED FROM THESE
CONTRACTORS UPWARDS OF $300,000.  BUT IT WAS DENIED THAT PAYMENT WAS
INDUCED BY THREATS TO DO UNLAWFUL INJURY TO PERSON OR PROPERTY.  THE
DEFENSE CLAIMED THAT THE PAYMENTS WERE VOLUNTARY - BRIBES, PERHAPS, BUT
NOT EXTORTION - THAT THESE MEN WERE PAID MERELY FOR UNDERTAKING TO
ASSIST THE CONTRACTORS TO AVOID LABOR TROUBLE, TO PREVENT
JURISDICTIONAL OR UNAUTHORIZED STRIKES, AND TO "HANDLE THE LABOR
SITUATION," AND THAT FAY AND BOVE RENDERED SERVICE AS AGREED. 

THE INDICTMENT CHARGED THE CRIMES IN SEVEN COUNTS.  ONE WAS DISMISSED
BY THE COURT; THE REMAINING SIX WERE SUBMITTED TO THE JURY.  THE JURY
ACQUITTED THE DEFENDANTS ON THREE OF THE COUNTS, DISAGREED ON ANOTHER,
AND CONVICTED ON TWO COUNTS.  THE CONVICTIONS WERE AFFIRMED ON APPEAL
BY THE APPELLATE DIVISION OF THE SUPREME COURT,  FN1  WHICH REVIEWS
BOTH LAW AND FACT,  FN2 AND BY THE COURT OF APPEALS.  FN3  NO FEDERAL
QUESTION IS RAISED AS TO THE MERITS OF THE FINDING OF GUILT AND WE ARE
TO ASSUME THAT THE CONVICTIONS WERE WARRANTED BY THE EVIDENCE AND,
EXCEPT FOR QUESTIONS AS TO THE SPECIAL JURY, WERE REGULAR.  WHILE THERE
WAS CHALLENGE TO THE PANEL FROM WHICH THIS JURY WAS DRAWN, ON GROUND OF
DENIAL OF FEDERAL DUE PROCESS AND EQUAL PROTECTION, EACH INDIVIDUAL
JUROR WAS ACCEPTED BY THE DEFENDANTS WITHOUT CHALLENGE FOR CAUSE.  THE
CHALLENGE TO THE SPECIAL JURY PANEL WAS NOT DISCUSSED BY EITHER OF THE
APPELLATE COURTS OF THE STATE BUT THE FEDERAL QUESTIONS WERE
SUFFICIENTLY AND TIMELY RAISED THROUGHOUT AND WERE OVERRULED BY ALL
STATE COURTS.  A DUAL SYSTEM OF JURIES PRESENTS EASY POSSIBILITIES OF
VIOLATION OF THE FOURTEENTH AMENDMENT AND WE TOOK THESE CASES BY
CERTIORARI TO EXAMINE THE CHARGES OF UNCONSTITUTIONALITY.  329 U.S.
697. 

THE QUESTION IS WHETHER A WARRANTED CONVICTION BY A JURY INDIVIDUALLY
ACCEPTED AS FAIR AND UNBIASED SHOULD BE SET ASIDE ON THE GROUND THAT
THE MAKE-UP OF THE PANEL FROM WHICH THEY WERE DRAWN UNFAIRLY NARROWS
THE CHOICE OF JURORS AND DENIES DEFENDANTS DUE PROCESS OF LAW OR EQUAL
PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION.  IF ANSWERED IN THE AFFIRMATIVE, IT MEANS THAT NO
CONVICTION BY THESE SPECIAL JURIES IS CONSTITUTIONALLY VALID, AND ALL
WOULD BE SET ASIDE IF THE QUESTION HAD BEEN PROPERLY RAISED AT OR
BEFORE TRIAL. 

THE DEFENDANTS RAISE NO QUESTION AS TO THE CONSTITUTIONALITY OF THE
GENERAL STATUTES OF NEW YORK WHICH PRESCRIBE THE QUALIFICATIONS,
DISQUALIFICATIONS AND EXEMPTIONS FOR ORDINARY JURY SERVICE.  NEITHER IS
ANY QUESTION RAISED AS TO THE ADMINISTRATION OF THESE GENERAL STATUTES
BY WHICH THE POPULATION OF NEW YORK COUNTY, NUMBERING SOME 1,800,000,
IS SIFTED TO PRODUCE A GENERAL JURY PANEL OF ABOUT 60,000, UNLESS IT BE
THAT THERE IS DISCRIMINATION AGAINST WOMEN.  FN4  IT IS FROM THIS PANEL
THAT DEFENDANTS INSIST, APART FROM ANY OBJECTION THEY MAY HAVE AS TO
IMPROPER EXCLUSION OF WOMEN EVEN FROM THE GENERAL PANEL, THEY HAD A
CONSTITUTIONAL RIGHT TO HAVE THEIR TRIAL JURY DRAWN.  THE STATUTES
ADVANCED AS A STANDARD MAY BE ROUGHLY SUMMARIZED: 

TO QUALIFY AS A JUROR, A PERSON MUST BE AN AMERICAN CITIZEN AND A
RESIDENT OF THE COUNTY; NOT LESS THAN 21 NOR MORE THAN 70 YEARS OLD;
THE OWNER OR SPOUSE OF AN OWNER OF PROPERTY OF THE VALUE OF $250; IN
POSSESSION OF HIS OR HER NATURAL FACULTIES AND NOT INFIRM OR DECREPIT;
NOT CONVICTED OF A FELONY OR A MISDEMEANOR INVOLVING MORAL TURPITUDE;
INTELLIGENT; OF SOUND MIND AND GOOD CHARACTER; WELL-INFORMED; ABLE TO
READ AND WRITE THE ENGLISH LANGUAGE UNDERSTANDINGLY.  FN5  FROM THOSE
QUALIFIED THE FOLLOWING CLASSES ARE EXEMPT FROM SERVICE:  CLERGYMEN,
PHYSICIANS, DENTISTS, PHARMACISTS, EMBALMERS, OPTOMETRISTS, ATTORNEYS,
MEMBERS OF THE ARMY, NAVY OR MARINE CORPS, OR OF THE NATIONAL GUARD OR
NAVAL MILITIA, FIREMEN, POLICEMEN, SHIP'S OFFICERS, PILOTS, EDITORS,
EDITORIAL WRITERS, SUBEDITORS, REPORTERS AND COPY READERS.  FN6 

WOMEN ARE EQUALLY QUALIFIED WITH MEN, FN7  BUT AS THEY ALSO ARE
GRANTED EXEMPTION,  FN8  A WOMAN DRAWN MAY SERVE OR NOT, AS SHE
CHOOSES. 

THE ATTACK IS FOCUSED UPON THE STATUTES AND SIFTING PROCEDURES WHICH
SHRINK THE GENERAL PANEL TO THE SPECIAL OR "BLUE RIBBON" PANEL OF ABOUT
3,000. 

SPECIAL JURORS ARE SELECTED FROM THOSE ACCEPTED FOR THE GENERAL PANEL
BY THE COUNTY CLERK, BUT ONLY AFTER EACH HAS BEEN SUBPOENAED FOR
PERSONAL APPEARANCE AND HAS TESTIFIED UNDER OATH AS TO HIS
QUALIFICATION AND FITNESS N9.  THE STATUTE PRESCRIBES STANDARDS FOR
THEIR SELECTION BY DECLARING INELIGIBLE AND DIRECTING ELIMINATION OF
THESE CLASSES:  (1) ALL WHO HAVE BEEN DISQUALIFIED OR WHO CLAIM AND ARE
ALLOWED EXEMPTION FROM GENERAL SERVICE.  (2) ALL WHO HAVE BEEN
CONVICTED OF A CRIMINAL OFFENSE, OR FOUND GUILTY OF FRAUD OR MISCONDUCT
BY JUDGMENT OF ANY CIVIL COURT.  (3) ALL WHO POSSESS SUCH CONSCIENTIOUS
OPINIONS WITH REGARD TO THE DEATH PENALTY AS WOULD PRECLUDE THEIR
FINDING A DEFENDANT GUILTY IF THE CRIME CHARGED BE PUNISHABLE WITH
DEATH.  (4) ALL WHO DOUBT THEIR ABILITY TO LAY ASIDE AN OPINION OR
IMPRESSION FORMED FROM NEWSPAPER READING OR OTHERWISE, OR TO RENDER AN
IMPARTIAL VERDICT UPON THE EVIDENCE UNINFLUENCED BY ANY SUCH OPINION OR
IMPRESSION, OR WHOSE OPINION OF CIRCUMSTANTIAL EVIDENCE IS SUCH AS
WOULD PREVENT THEIR FINDING A VERDICT OF GUILTY UPON SUCH EVIDENCE, OR
WHO AVOW SUCH A PREJUDICE AGAINST ANY LAW OF THE STATE AS WOULD
PRECLUDE FINDING A DEFENDANT GUILTY OF A VIOLATION OF SUCH LAW, OR WHO
AVOW SUCH A PREJUDICE AGAINST ANY PARTICULAR DEFENSE TO A CRIMINAL
CHARGE AS WOULD PREVENT GIVING A FAIR AND IMPARTIAL TRIAL UPON THE
MERITS OF SUCH DEFENSE, OR WHO AVOW THAT THEY CANNOT IN ALL CASES GIVE
TO A DEFENDANT WHO FAILS TO TESTIFY AS A WITNESS IN HIS OWN BEHALF THE
FULL BENEFIT OF THE STATUTORY PROVISION THAT SUCH DEFENDANT'S NEGLECT
OR REFUSAL TO TESTIFY AS A WITNESS IN HIS OWN BEHALF SHALL NOT CREATE
ANY PRESUMPTION AGAINST HIM.  FN10 

THE SPECIAL JURY PANEL IS NOT ONE BROUGHT INTO EXISTENCE FOR THIS
PARTICULAR CASE NOR FOR ANY SPECIAL CLASS OF OFFENSES OR TYPE OF
ACCUSED.  IT IS PART OF THE REGULAR MACHINERY OF TRIAL IN COUNTIES OF
ONE MILLION OR MORE INHABITANTS.  IN ITS SOUND DISCRETION THE COURT MAY
ORDER TRIAL BY SPECIAL JURY ON APPLICATION OF EITHER PARTY IN A CIVIL
ACTION AND BY EITHER THE PROSECUTION OR DEFENSE IN CRIMINAL CASES.  THE
MOTION MAY BE GRANTED ONLY ON A SHOWING THAT "BY REASON OF THE
IMPORTANCE OR INTRICACY OF THE CASE, A SPECIAL JURY IS REQUIRED" OR
"THE ISSUE TO BE TRIED HAS BEEN SO WIDELY COMMENTED UPON  ...  THAT AN
ORDINARY JURY CANNOT WITHOUT DELAY AND DIFFICULTY BE OBTAINED" OR THAT
FOR ANY OTHER REASON "THE DUE, EFFICIENT AND IMPARTIAL ADMINISTRATION
OF JUSTICE IN THE PARTICULAR CASE WOULD BE ADVANCED BY THE TRIAL OF
SUCH AN ISSUE BY A SPECIAL JURY  ...  " FN11 

THIS SPECIAL JURY STATUTE IS NOT RECENT NOR IS THE PRACTICE UNDER IT
NOVEL.  THE PROGENITOR OF THIS STATUTE, LIKE IT IN ALL PERTINENT
RESPECTS, WAS ENACTED IN 1896 BUT WAS REPEALED AND SIMULTANEOUSLY
REENACTED IN SUBSTANTIALLY ITS PRESENT FORM IN 1901.  FN12  IT WAS SOON
ATTACKED AS ON ITS FACE VIOLATING THE STATE CONSTITUTION.  THE CLAIM OF
ONE CONVICTED BY A SPECIAL JURY THAT IT WAS AN UNCONSTITUTIONAL BODY
BECAUSE ITS RESTRICTIVE COMPOSITION DENIED DUE PROCESS OF LAW, WAS
REJECTED BY THE COURT OF APPEALS IN A WELLCONSIDERED OPINION.  PEOPLE
V. DUNN, 157 N.Y. 528, 52 N.E. 572(1899).  THE ATTACK THEN WAS MADE
FROM THE OPPOSITE DIRECTION.  ONE CONVICTED BY AN ORDINARY JURY CLAIMED
THAT IT WAS AN UNCONSTITUTIONAL BODY.  THIS CLAIM THAT THE SPECIAL
PANEL HAD WITHDRAWN TWENTY-FIVE HUNDRED "MEN OF PRESUMABLY SUPERIOR
INTELLIGENCE," 162 N.Y. AT 362, 56 N.E. AT 759, TOO, WAS REJECTED BY
THE COURT OF APPEALS.  PEOPLE V. MEYER, 162 N.Y. 357, 56 N.E.
758(1900). 

THEN, IN 1901, AN ATTACK ON THE CONSTITUTIONALITY OF THE STATUTE WAS
REJECTED BY THIS COURT.  ONE HALL HAD BEEN CONVICTED OF MURDER BY A
SPECIAL JURY AND SENTENCED TO DEATH.  HE SUED OUT A WRIT OF HABEAS
CORPUS WHICH WAS DENIED BELOW.  HE CHALLENGED THE SPECIAL PANEL AND
CLAIMED THAT HIS CONVICTION BY ITS VERDICT WAS A DENIAL OF DUE PROCESS
OF LAW AND OF EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE
FOURTEENTH AMENDMENT BECAUSE THE JURY WAS "TAKEN FROM A PARTICULAR BODY
OF CITIZENS AND NOT FROM THE GENERAL BODY OF THE COUNTY AS WAS PROVIDED
IN ALL CASES WHEREIN SUCH SPECIAL JURY WAS NOT DRAWN."  THIS COURT
AFFIRMED, HALL V. JOHNSON, 186 U.S. 480, CITING AMONG OTHER AUTHORITIES
BROWN V. NEW JERSEY, 175 U.S. 172, WHICH UPHELD A STATE STATUTE FOR A
"STRUCK JURY."  FN13 

SINCE THESE DECISIONS, THE SPECIAL JURY HAS BEEN IN CONTINUOUS USE IN
NEW YORK COUNTY IN IMPORTANT CASES.  THE DISTRICT ATTORNEY CITES OVER
ONE HUNDRED MURDER CONVICTIONS, ON VERDICT OF THE SPECIAL JURY,
CONSIDERED BY THE COURT OF APPEALS WHICH AFFIRMED JUDGMENTS OF DEATH. 
WE ARE ASKED, HOWEVER, TO RECONSIDER THE QUESTION AND, IN THE LIGHT OF
MORE RECENT TRENDS OF DECISION AND OF PARTICULAR FACTS ABOUT THE
PRESENT OPERATION OF THE JURY SYSTEM NOT ADVANCED IN SUPPORT OF THE
ARGUMENT IN THE EARLIER CASE, TO DISAPPROVE THE SPECIAL JURY SYSTEM. 

WE FAIL TO PERCEIVE ON ITS FACE ANY CONSTITUTIONAL OFFENSE IN THE
STATUTORY STANDARDS PRESCRIBED FOR THE SPECIAL PANEL.  THE ACT DOES NOT
EXCLUDE, OR AUTHORIZE THE CLERK TO EXCLUDE, ANY PERSON OR CLASS BECAUSE
OF RACE, CREED, COLOR OR OCCUPATION.  IT IMPOSES NO QUALIFICATION OF AN
ECONOMIC NATURE BEYOND THAT IMPOSED BY THE CONCEDEDLY VALID GENERAL
PANEL STATUTE.  EACH OF THE GROUNDS OF ELIMINATION IS REASONABLY AND
CLOSELY RELATED TO THE JUROR'S SUITABILITY FOR THE KIND OF SERVICE THE
SPECIAL PANEL REQUIRES OR TO HIS FITNESS TO JUDGE THE KIND OF CASES FOR
WHICH IT IS MOST FREQUENTLY UTILIZED.  NOT ALL OF THE GROUNDS OF
ELIMINATION WOULD APPEAR RELEVANT TO THE ISSUES OF THE PRESENT CASE. 
BUT WE KNOW OF NO RIGHT OF DEFENDANTS TO HAVE A SPECIALLY CONSTITUTED
PANEL WHICH WOULD INCLUDE ALL PERSONS WHO MIGHT BE FITTED TO HEAR THEIR
PARTICULAR AND UNIQUE CASE.  THIS PANEL IS FOR SERVICE IN A WIDE
VARIETY OF CASES AND ITS ELIMINATIONS MUST BE JUDGED IN THAT LIGHT.  WE
CANNOT OVERLOOK THAT ONE OF THE FEATURES WHICH HAS TENDED TO DISCREDIT
JURY TRIALS IS INTERMINABLE EXAMINATION AND REJECTION OF PROSPECTIVE
JURORS.  IN A METROPOLIS WITH NOTORIOUSLY CONGESTED COURT CALENDARS WE
CANNOT FIND IT CONSTITUTIONALLY FORBIDDEN TO SET UP ADMINISTRATIVE
PROCEDURES IN ADVANCE OF TRIAL TO ELIMINATE FROM THE PANEL THOSE WHO,
IN A LARGE PROPORTION OF CASES, WOULD BE REJECTED BY THE COURT AFTER
ITS TIME HAD BEEN TAKEN IN EXAMINATION TO ASCERTAIN THE
DISQUALIFICATIONS.  MANY OF THE STANDARDS OF ELIMINATION WHICH THE
CLERK IS DIRECTED TO APPLY IN CHOICE OF THE PANEL ARE THOSE THE COURT
WOULD HAVE TO APPLY TO EXCUSE A JUROR ON CHALLENGE FOR CAUSE. 

THESE ARE MATTERS WITH WHICH LOCAL AUTHORITY MUST AND DOES HAVE
CONSIDERABLE LATITUDE TO COPE, FOR THEY AFFECT THE ADMINISTRATION OF
JUSTICE WHICH IS A LOCAL RESPONSIBILITY.  FOR EXAMPLE, IN THIS CASE THE
TIME OF THE TRIAL COURT AND ITS ENTIRE RETINUE OF ATTENDANTS WAS TAKEN
WHILE EIGHTY-NINE PROSPECTIVE JURORS WERE EXAMINED.  HOW MANY MORE
WOULD HAVE BEEN EXAMINED IF THE CLERK HAD NOT ALREADY ELIMINATED THOSE
WHO ADMIT THAT THEY WOULD NOT GIVE DEFENDANTS BENEFIT OF THE RULE THAT
THEIR NEGLECT OR REFUSAL TO TESTIFY IN THEIR OWN BEHALF WOULD NOT
CREATE A PRESUMPTION AGAINST THEM?  NEITHER OF THESE DEFENDANTS SAW FIT
TO TAKE THE WITNESS STAND.  THE DEFENDANTS THEMSELVES HAVE COMPLAINED
OF THE EXCEPTIONAL PUBLICITY GIVEN TO THE CHARGES IN THIS CASE.  HOW
MANY MORE JURORS WOULD HAVE BEEN EXAMINED IF THE CLERK HAD NOT ALREADY
ELIMINATED THOSE WHO FELT THEMSELVES SUBJECT TO INFLUENCE BY
PUBLICITY?  THESE ARE PRACTICAL MATTERS IN ADMINISTERING JUSTICE IN
WHICH WE WILL TAKE CARE NOT TO HAMSTRING LOCAL AUTHORITY BY ARTIFICIAL
OR DOCTRINAIRE REQUIREMENTS.    IT HAS CONSISTENTLY BEEN HELD THAT A
JURY IS NOT RENDERED CONSTITUTIONALLY INVALID BY FAILURE OF THE STATUTE
TO SET FORTH ANY STANDARDS FOR SELECTION.  MURRAY V. LOUISIANA, 163
U.S. 101, 108; FRANKLIN V. SOUTH CAROLINA, 218 U.S. 161, 167-68; AKINS
V. TEXAS, 325 U.S. 398, 403; SEE ALSO EX PARTE VIRGINIA, 100 U.S. 339,
348.  WE FIND NOTHING IN THE STANDARDS NEW YORK HAS PRESCRIBED WHICH,
ON ITS FACE, IS PROHIBITED BY THE CONSTITUTION.  THERE REMAIN, HOWEVER,
MORE SERIOUS QUESTIONS AS TO WHETHER THE SPECIAL JURY ACT HAS BEEN SO
ADMINISTERED AS TO DENY DUE PROCESS TO THE DEFENDANTS AND WHETHER THE
DUAL SYSTEM OF JURY PANELS AS ADMINISTERED DENIED EQUAL PROTECTION OF
THE LAWS. 

AS TO THE ACTUAL RESULTS OF APPLICATION OF THE STATUTE, THE LITIGANTS
ARE IN CONTROVERSY.  THE NEW YORK COURTS, DOUBTLESS INFLUENCED BY THE
FACT THAT LONG AGO THEY HAD UPHELD SIMILAR STATUTES, MADE NO FINDINGS
OF FACT AND WROTE NO OPINION ON THE SUBJECT.  IT IS TO BE REGRETTED
THAT WE MUST DEAL WITH QUESTIONS OF FACT WITHOUT AID OF FINDINGS BY THE
COURTS WHOSE EXPERIENCE WITH THE SYSTEM AND PROXIMITY TO THE LOCAL
CONDITIONS WITH WHICH THE SPECIAL JURY CUSTOMS ARE SO INTERWOVEN WOULD
ENTITLE THEIR FINDINGS TO VERY GREAT WEIGHT.  WE WOULD, IN ANY CASE, BE
OBLIGED ON A CONSTITUTIONAL QUESTION TO REACH OUR OWN CONCLUSIONS,
AFTER FULL ALLOWANCE OF WEIGHT TO FINDINGS OF THE STATE COURTS, AND IN
THIS CASE MUST EXAMINE THE EVIDENCE.  NORRIS V. ALABAMA, 294 U.S. 587,
590; LISENBA V. CALIFORNIA, 314 U.S. 219, 237-38; ASHCRAFT V.
TENNESSEE, 322 U.S. 143, 148. 

THE ALLEGATIONS OF FACT UPON WHICH DEFENDANTS ASK US TO HOLD THESE
SPECIAL PANELS UNCONSTITUTIONAL COME TO THREE:  (1) THAT LABORERS,
OPERATIVES, CRAFTSMEN, FOREMEN AND SERVICE EMPLOYEES WERE
SYSTEMATICALLY, INTENTIONALLY AND DELIBERATELY EXCLUDED FROM THE
PANEL.  (2) THAT WOMEN WERE IN THE SAME WAY EXCLUDED.  (3) THAT THE
SPECIAL PANEL IS SO COMPOSED AS TO BE MORE PRONE TO CONVICT THAN THE
GENERAL PANEL. 

(1)  THE PROOF THAT LABORERS AND SUCH WERE EXCLUDED CONSISTS OF A
TABULATION OF OCCUPATIONS AS LISTED IN THE QUESTIONNAIRES FILED WITH
THE CLERK.  THE TABLE RECEIVED IN EVIDENCE IS SET OUT IN THE MARGIN. 
FN14  IT IS SAID IN CRITICISM OF THIS LIST THAT IT SHOWS THE INDUSTRY
IN WHICH THESE PERSONS WORK RATHER THAN WHETHER THEY ARE LABORERS OR
CRAFTSMEN; THAT IS, "MECHANICS" MAY BE AND PROBABLY ARE ALSO LABORERS;
"BANKERS" MAY BE CLERKS.  CERTAINLY THE TABULATION DOES NOT SHOW THE
RELATION OF THESE JURORS TO THE INDUSTRY IN WHICH THEY WERE CLASSIFIED,
AS, FOR EXAMPLE, WHETHER THEY WERE OWNERS OR FINANCIALLY INTERESTED, OR
MERELY EMPLOYEES.  IT DOES NOT SHOW ABSENCE OR EXCLUSION OF WAGE
EARNERS OR OF UNION MEMBERS, ALTHOUGH NONE LISTED THEMSELVES AS
"LABORERS," FOR SEVERAL OF THESE CLASSES ARE OBVIOUSLY OF THE EMPLOYEE
RATHER THAN THE ENTREPRENEUR CHARACTER.  ONE OF PETITIONERS' TABLES
SHOWED THAT 38% OF THE SPECIAL PANEL WERE "CLERICAL, SALES, AND KINDRED
WORKERS."  THREE OF THOSE EXAMINED AS JURORS IN THIS CASE WERE MEMBERS
OF LABOR UNIONS.  TWO WERE PEREMPTORILY CHALLENGED BY THE PEOPLE AND
THE ONE ACCEPTED BY THE PROSECUTION WAS CHALLENGED BY THE DEFENSE. 

IT IS SOUGHT TO GIVE SIGNIFICANCE TO THIS EXHIBIT SHOWING THE
BREAKDOWN INTO OCCUPATIONS OF SOME 2,700 SPECIAL JURORS, HOWEVER, BY
REFERENCE TO A TABULATION OF OCCUPATIONS OF SOME 920,000 EMPLOYEES AND
PERSONS SEEKING EMPLOYMENT IN MANHATTAN.  THE COMPARISON IS SAID TO
SHOW A GREAT DISPARITY BETWEEN THE PERCENTAGE OF JURORS OF EACH
OCCUPATION REPRESENTED ON THE JURY LIST OF 1945 AND THE OCCUPATIONAL
DISTRIBUTION OF THE NUMBER OF EMPLOYED PERSONS OR EXPERIENCED PERSONS
SEEKING EMPLOYMENT IN MANHATTAN IN 1940.  THIS TABLE WAS NOT PUT IN
EVIDENCE BUT IS REPRODUCED IN THE MARGIN.  FN15  APART FROM THE
DISCREPANCY OF FIVE YEARS IN THE DATES OF THE DATA AND THE DIFFERENCES
IN CLASSIFICATION OF OCCUPATIONS, THE TWO TABLES DO NOT AFFORD
STATISTICAL PROOF THAT THE JURY PERCENTAGES ARE THE RESULT OF
DISCRIMINATION.  SUCH A CONCLUSION WOULD BE JUSTIFIED ONLY IF WE KNEW
WHETHER THE APPLICATION OF THE PROPER JURY STANDARDS WOULD AFFECT ALL
OCCUPATIONS ALIKE, OF WHICH THERE IS NO EVIDENCE AND WHICH WE REGARD AS
IMPROBABLE.  THE PERCENTAGE OF PERSONS EMPLOYED OR SEEKING EMPLOYMENT
IN EACH OCCUPATION DOES NOT ESTABLISH EVEN AN APPROXIMATE RATIO FOR
THOSE OF EACH OCCUPATION THAT SHOULD APPEAR IN A FAIRLY SELECTED JURY
PANEL.  THE FORMER IS NOT LIMITED, AS THE LATTER MUST BE, TO THOSE OVER
21 OR UNDER 70 YEARS OF AGE.  IT IS COMMON KNOWLEDGE THAT MANY EMPLOYED
AND SEEKERS OF EMPLOYMENT IN NEW YORK ARE NOT, AS JURORS MUST BE,
CITIZENS OF THE UNITED STATES.  HOW MANY COULD NOT MEET THE PROPERTY
QUALIFICATIONS?  HOW MANY COULD NOT READ AND WRITE THE ENGLISH LANGUAGE
UNDERSTANDINGLY?  IT IS ONLY AFTER EFFECT IS GIVEN TO THESE ADMITTEDLY
CONSTITUTIONAL REQUIREMENTS THAT WE WOULD HAVE ANY FIGURES WHICH
DETERMINED OR EVEN SUGGESTED THE EFFECT OF THE ADDITIONAL
DISQUALIFICATIONS IMPOSED ON SPECIAL JURORS. 

AN OCCUPATIONAL COMPARISON OF THE SPECIAL PANEL WITH THE GENERAL
PANEL MIGHT AFFORD SOME GROUND FOR AN OPINION ON THE EFFECT OF THE
PARTICULAR PRACTICES COMPLAINED OF IN THE COMPOSITION OF THE SPECIAL
PANEL.  BUT NO SUCH COMPARISON IS OFFERED.  PETITIONERS' ONLY STATEMENT
AS TO THE COMPARATIVE MAKE-UP OF THE GENERAL AND SPECIAL PANELS IS AS
FOLLOWS:  "WHILE THE DEFECT OF DISCRIMINATION AGAINST WOMEN,
PARTICULARLY THOSE WHO ARE NOT MEMBERS OF SO-CALLED 'CIVIC CONSCIOUS'
ORGANIZATIONS, PERMEATES BOTH THE GENERAL AND SPECIAL JURIES, THERE IS
NO EVIDENCE WHATEVER THAT LABORERS, OPERATIVES, SERVICE EMPLOYEES,
CRAFTSMEN, AND FOREMEN, ARE EXCLUDED FROM THE GENERAL JURY PANEL." 
WHAT IS MORE TO THE POINT IS THAT PETITIONERS ADDUCED NO EVIDENCE
WHATEVER THAT THE OCCUPATIONAL COMPOSITION OF THE GENERAL PANEL IS
SUBSTANTIALLY DIFFERENT FROM THAT OF THE SPECIAL.  IF THEY ARE THE
SAME, THEN PETITIONERS' ASSERTION THAT QUESTION 23, REFERRED TO BELOW,
SOMEHOW SEPARATES THE RICH FROM THE POOR IS OBVIOUSLY WITHOUT MERIT. 
IT IS NOT UNLIKELY THAT THE REQUIREMENTS OF CITIZENSHIP, PROPERTY AND
LITERACY DISQUALIFY A GREATER PROPORTION OF LABORERS, CRAFTSMEN AND
SERVICE EMPLOYEES THAN OF SOME OTHER CLASSES.  THOSE WHO ARE ILLITERATE
OR, IF LITERATE IN THEIR OWN, ARE UNABLE TO SPEAK OR WRITE THE ENGLISH
LANGUAGE, NATURALLY FIND EMPLOYMENT CHIEFLY IN MANUAL WORK.  IT IS
IMPOSSIBLE FROM THE DEFENDANTS' EVIDENCE IN THIS CASE TO FIND THAT THE
DISTRIBUTION OF THE JURY PANEL AMONG OCCUPATIONS IS NOT THE RESULT OF
THE APPLICATION OF LEGITIMATE STANDARDS OF DISQUALIFICATION. 

ON THE OTHER HAND, THE EVIDENCE THAT THERE HAS BEEN NO DISCRIMINATION
AS TO OCCUPATION IN SELECTION OF THE PANEL, WHILE FROM INTERESTED
WITNESSES, WHOSE DUTY IT WAS TO ADMINISTER THE LAW, IS CLEAR AND
POSITIVE AND IS NEITHER CONTRADICTED NOR IMPROBABLE.  THE TESTIMONY OF
THOSE IN CHARGE OF THE SELECTION, OFFERED BY THE DEFENDANTS THEMSELVES,
IS THAT WITHOUT OCCUPATIONAL DISCRIMINATION THEY APPLIED THE STANDARDS
OF THE STATUTE TO ALL WHOM THEY EXAMINED.  WE ARE UNABLE TO FIND THAT
THIS EVIDENCE IS UNTRUE. 

(2)  AS TO THE EXCLUSION OF WOMEN, IT WILL BE REMEMBERED THAT THE LAW
OF NEW YORK GIVES TO WOMEN THE PRIVILEGE TO SERVE BUT DOES NOT IMPOSE
SERVICE AS A DUTY.  IT IS SAID TO HAVE BEEN FOUND IMPRACTICAL TO COMPEL
LARGE NUMBERS OF WOMEN, WHO HAVE AN ABSOLUTE EXEMPTION, TO COME TO THE
CLERK'S OFFICE FOR EXAMINATION SINCE THEY SO GENERALLY ASSERT THEIR
EXEMPTION.  HENCE, ONLY THOSE WHO VOLUNTEER OR ARE SUGGESTED AS WILLING
TO SERVE BY OTHER WOMEN OR BY ORGANIZATIONS, INCLUDING THE LEAGUE OF
WOMEN VOTERS, ARE SUBPOENAED FOR EXAMINATION.  SOME EFFORT IS MADE BY
THE OFFICIALS ALSO TO INDUCE WOMEN TO VOLUNTEER.  BUT THE EVIDENCE DOES
NOT SHOW THAT WOMEN ARE EXCLUDED FROM THE SPECIAL JURY.  IN THIS CASE
THREE WOMEN TALESMEN WERE EXAMINED.  ONE WAS PRONOUNCED "SATISFACTORY"
BY BOTH SIDES AND SERVED ON THE JURY. 

AS TO BOTH WOMEN AND MEN, IT IS COMPLAINED THAT ELIMINATIONS RESULTED
UNFAIRLY FROM USE OF A QUESTIONNAIRE, WHICH ASKED, "WHAT MONTHS OF THE
YEAR BETWEEN OCTOBER 1 AND JUNE 30 WOULD YOU PREFER TO SERVE (NAME TWO
OR MORE MONTHS)."  THOSE WHO STATED A PREFERENCE, AND THEY WERE MANY,
WERE EXCLUDED FROM THE SPECIAL PANEL ALTHOUGH THEY CONTINUED ELIGIBLE
FOR THE GENERAL PANEL.  THE REASON GIVEN FOR THIS IS THAT SERVICE ON
THE GENERAL PANEL CAN BE ADJUSTED TO SUCH PREFERENCES WHILE THE SPECIAL
PANEL, BECAUSE OF THE NATURE OF THE CASES TRIED BEFORE IT, MAY REQUIRE
SERVICE AT ANY TIME AND FOR LONG PERIODS.  WE THINK THE PHRASING OF
THIS QUESTION IS LESS THAN CANDID IN VIEW OF THIS PURPOSE.  BUT WE FIND
NO EVIDENCE THAT IT OPERATES MORE MISLEADINGLY ON WOMEN THAN ON MEN, OR
ON ONE OCCUPATION OR CLASS THAN ON OTHERS.  WHILE IT DOES NOT COMMEND
ITSELF, IT APPEARS TO BE AN ADMINISTRATIVE INEPTITUDE OF NO
CONSTITUTIONAL SIGNIFICANCE AND OF NO PREJUDICE TO THESE DEFENDANTS. 

(3)  A MORE SERIOUS ALLEGATION AGAINST THE SPECIAL JURY PANEL IS THAT
IT IS MORE INCLINED THAN THE GENERAL PANEL TO CONVICT.  EXTENSIVE
STUDIES HAVE BEEN MADE BY THE NEW YORK STATE JUDICIAL COUNCIL WHICH IS
UNDER THE DUTY OF CONTINUOUS STUDY OF THE PROCEDURES OF THE COURTS AND
OF MAKING RECOMMENDATIONS FOR IMPROVEMENT TO THE LEGISLATURE N16.  IT
IS ON STUDIES AND CRITICISMS BY THIS OFFICIAL BODY THAT PETITIONERS
BASE THEIR CHARGE HERE THAT THE SPECIAL JURY IS A CONVICTING JURY IN AN
UNCONSTITUTIONAL SENSE. 

IN 1937 THE COUNCIL RECOMMENDED ABOLITION OF STRUCK JURIES,  FN17
FOREIGN JURIES  FN18  AND SPECIAL JURIES.  FN19  IT SAID THAT, "A WELL
ADMINISTERED ORDINARY JURY SYSTEM SHOULD PRODUCE JURORS OF AS HIGH
CALIBRE FOR EVERY ACTION AS THE SPECIAL JURY SYSTEM ATTEMPTS TO PROVIDE
IN EXCEPTIONAL CASES."  FN20  THE RECOMMENDATION WAS FOLLOWED BY THE
LEGISLATURE EXCEPT AS TO SPECIAL JURIES.  IN 1938 THE JUDICIAL COUNCIL
RENEWED ITS RECOMMENDATION AS TO THESE.  IT SUMMARIZED THAT ITS DATA
"INDICATE THAT SPECIAL JURIES ARE PRONE TO CONVICT."  FN21  IN A STUDY
OF CERTAIN TYPES OF HOMICIDE CASES, IT FOUND THAT, IN 1933 AND 1934,
SPECIAL JURIES CONVICTED IN EIGHTY-THREE PERCENT AND EIGHTY-TWO PERCENT
OF THE CASES WHILE ORDINARY JURIES THOSE YEARS CONVICTED IN FORTY-THREE
PERCENT AND THIRTY-SEVEN PERCENT RESPECTIVELY.  IT REPORTED THAT, "THE
JUDICIAL COUNCIL BELIEVES THAT EVERY PETIT JURY SHOULD BE OF UNIFORMLY
HIGH CALIBRE AND CAPABLE OF GIVING A FAIR TRIAL IN ALL CASES.  TO
ATTAIN THIS GOAL, THE ORDINARY JURY, AS NOW PROVIDED, MAY BE IN NEED OF
IMPROVEMENT.  IT IS, HOWEVER, UNJUST AND SHOULD BE UNNECESSARY TO
SELECT SUPPOSEDLY SPECIAL JURIES IN SPECIFIC CASES."  FN22  THE COUNCIL
NEXT YEAR REPORTED THAT THE GENERAL PANEL HAD NOT BEEN CONSIDERED
ADEQUATE, LARGELY BECAUSE IN ITS SELECTION THE STANDARDS OF THE STATUTE
HAD NOT BEEN FOLLOWED, AND THAT A COMPLETE REEXAMINATION OF THE GENERAL
PANEL WAS UNDERTAKEN N23.  FROM TIME TO TIME THE COUNCIL RENEWED ITS
RECOMMENDATION.  IN 1945 IT PROPOSED THAT THE SPECIAL JURY "BE
ABOLISHED AS UNNECESSARY AND UNDESIRABLE."  IT SAID, "IT IS UNDISPUTED
THAT THE REVISED JURY SYSTEM FOR NEW YORK CITY RECOMMENDED BY THE
JUDICIAL COUNCIL AND IN OPERATION SINCE 1940 HAS SUCCEEDED IN IMPROVING
THE QUALITY OF JURORS GENERALLY BY APPLYING TO ALL JURORS THE HIGH
STANDARDS WHICH FORMERLY WERE REQUIRED ONLY OF SPECIAL JURORS.  THUS,
THE NECESSITY FOR SPECIAL JURORS NO LONGER EXISTS."  FN24 

WHILE THE JUDICIAL COUNCIL HAS POINTED OUT AND INVESTIGATED THE
DIFFERENT CONVICTION RATIOS, IT HAS AT NO TIME SUGGESTED THAT THE
SPECIAL JURY HAS BEEN INCLINED TO CONVICT EXCEPT WHERE CONVICTION WAS
WARRANTED.  NEW YORK EXTENDS AN APPEAL ON LAW AND FACT AS MATTER OF
RIGHT.  FN25 IF THERE WERE A TENDENCY TO CONVICT IMPROPERLY, THE
JUDICIAL COUNCIL, WHICH INCLUDES THE CHIEF JUDGE OF THE COURT OF
APPEALS AND THE PRESIDING JUSTICE OF THE APPELLATE DIVISION, WHICH
COURTS REVIEW THESE CASES, WOULD KNOW IT.  DESPITE THE COUNCIL'S DESIRE
TO ABOLISH THIS JURY, NO SUCH REASONS WERE EVER ASSIGNED.  NO
STATISTICS ARE PRODUCED TO SHOW THAT SPECIAL JURIES HAVE BEEN MORE
OFTEN REVERSED ON THE FACTS THAN ORDINARY ONES.  OF COURSE, IT WOULD BE
IMPOSSIBLE FOR US TO SAY, EVEN WERE WE TO EXAMINE THE CASES IN DETAIL,
WHETHER THE DIFFERENCE IN PERCENTAGE OF CONVICTIONS INDICATED A TOO
GREAT READINESS TO CONVICT ON THE PART OF SPECIAL JURIES OR A TOO GREAT
READINESS TO ACQUIT ON THE PART OF ORDINARY JURIES, OR WHETHER THE
DISPARITY REFLECTED A DIFFERENCE BETWEEN THE ORDINARY CASE AND THOSE
SELECTED FOR SPECIAL JURY TRIAL, RATHER THAN A REFLECTION OF AN
ATTITUDE ON THE PART OF EITHER PANEL.  IT MAY RESULT FROM THE GREATER
ATTENTION AND BETTER COUNSEL WHICH THE PROSECUTION GIVES TO THESE
IMPORTANT CASES. 

THESE DEFENDANTS WERE CONVICTED MARCH 15, 1945, WHEN THE STATISTICS
OFFERED HERE AS TO RELATIVE PROPENSITY OF THE TWO JURIES TO CONVICT
WERE MORE THAN TEN YEARS OLD, AND WHEN THE CONDITIONS WHICH MAY HAVE
PRODUCED THE DISCREPANCY IN RATIO OF CONVICTIONS HAD LONG SINCE BEEN
CORRECTED. 

THE EVIDENCE IN SUPPORT OF THESE OBJECTIONS MAY WELL, AS THE JUDICIAL
COUNCIL THOUGHT, WARRANT A POLITICAL OR SOCIAL JUDGMENT THAT THIS
SPECIAL PANEL IN 1945 WAS "UNNECESSARY AND UNDESIRABLE" AND THAT THE
LEGISLATURE SHOULD ABOLISH IT.  BUT IT IS QUITE ANOTHER MATTER TO SAY
THAT THIS FEDERAL COURT HAS A MANDATE FROM THE CONSTITUTION TO DISABLE
THE SPECIAL JURY BY SETTING ASIDE ITS CONVICTIONS.  THE GREAT DISPARITY
BETWEEN A LEGISLATIVE POLICY OR A POLITICAL JUDGMENT ON THE ONE HAND
AND A CONSTITUTIONAL OR LEGAL JUDGMENT ON THE OTHER, FINDS STRIKING
ILLUSTRATION IN THE POSITION TAKEN BY THE HIGHEST JUDICIAL PERSONAGES
IN NEW YORK STATE WHO JOINED IN THE RECOMMENDATION TO ABOLISH THE
SPECIAL JURY. 

TWO MEMBERS  FN26  OF THE COUNCIL WHO JOINED IN PROPOSING LEGISLATION
TO ABOLISH THE DUAL SYSTEM SAT IN THIS CASE AND ABSTAINED FROM PUTTING
THEIR LEGISLATIVE RECOMMENDATION INTO A COURT DECISION - THEY SUSTAINED
AS CONSTITUTIONAL THE SYSTEM THEY WOULD ABOLISH AS MATTER OF POLICY. 
OUR FUNCTION CONCERNS ONLY CONSTITUTIONALITY AND WE TURN TO THE BEARING
OF FEDERAL CONSTITUTIONAL PROVISIONS ON THE LEGAL ISSUES.    IT IS NOT
EASY, AND IT SHOULD NOT BE EASY, FOR DEFENDANTS TO HAVE PROCEEDINGS SET
ASIDE AND HELD FOR NAUGHT ON CONSTITUTIONAL GROUNDS WHEN THEY HAVE
ACCEPTED AS SATISFACTORY ALL OF THE INDIVIDUAL JURORS WHO SAT IN THEIR
CASE, THE JURY EXERCISED SUCH DISCRIMINATING AND DISPASSIONATE JUDGMENT
AS TO ACQUIT THEM ON THREE OF THE FIVE COUNTS SUBMITTED, AND THEIR
CONVICTION ON A FULL JUDICIAL REVIEW OF THE FACTS AND LAW HAS BEEN
FOUND JUSTIFIED.  THIS COURT HAS LONG DEALT AND MUST CONTINUE TO DEAL
WITH THESE CONTROVERSIES FROM STATE COURTS WITH SELF-IMPOSED RESTRAINTS
INTENDED TO PROTECT ITSELF AND THE STATE AGAINST IRRESPONSIBLE EXERCISE
OF ITS UNAPPEALABLE POWER. 

WHILE THIS CASE DOES NOT INVOLVE ANY QUESTION AS TO EXCLUSION OF
NEGROES OR ANY OTHER RACE, THE DEFENDANTS RELY LARGELY UPON A SERIES OF
DECISIONS IN WHICH THIS COURT HAS SET ASIDE STATE COURT CONVICTIONS OF
NEGROES BECAUSE NEGROES WERE PURPOSEFULLY AND COMPLETELY EXCLUDED FROM
THE JURY.  HOWEVER, BECAUSE OF THE LONG HISTORY OF UNHAPPY RELATIONS
BETWEEN THE TWO RACES, CONGRESS HAS PUT THESE CASES IN A CLASS BY
THEMSELVES.  THE FOURTEENTH AMENDMENT, IN ADDITION TO DUE PROCESS AND
EQUAL PROTECTION CLAUSES, DECLARES THAT "THE CONGRESS SHALL HAVE POWER
TO ENFORCE, BY APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS
ARTICLE."  SO EMPOWERED, THE CONGRESS ON MARCH 1, 1875, ENACTED THAT
"NO CITIZEN POSSESSING ALL OTHER QUALIFICATIONS WHICH ARE OR MAY BE
PRESCRIBED BY LAW SHALL BE DISQUALIFIED FOR SERVICE AS GRAND OR PETIT
JUROR IN ANY COURT OF THE UNITED STATES, OR OF ANY STATE, ON ACCOUNT OF
RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE;" AND MADE IT A CRIME
FOR ANY OFFICER TO EXCLUDE ANY CITIZEN ON THOSE GROUNDS.  18 STAT. 336
37, 8 U.S.C. SEC. 44.  FOR US THE MAJESTIC GENERALITIES OF THE
FOURTEENTH AMENDMENT ARE THUS REDUCED TO A CONCRETE STATUTORY COMMAND
WHEN CASES INVOLVE RACE OR COLOR WHICH IS WANTING IN EVERY OTHER CASE
OF ALLEGED DISCRIMINATION.  THIS STATUTE WAS A FACTOR SO DECISIVE IN
ESTABLISHING THE NEGRO CASE PRECEDENTS THAT THE COURT EVEN HINTED THAT
THERE MIGHT BE NO JUDICIAL POWER TO INTERVENE EXCEPT IN MATTERS
AUTHORIZED BY ACTS OF CONGRESS.  REFERRING TO THE PROVISION EMPOWERING
CONGRESS TO ENFORCE THE FOURTEENTH AMENDMENT, IT SAID THAT "ALL OF THE
AMENDMENTS DERIVE MUCH OF THEIR FORCE FROM THIS LATTER PROVISION.  IT
IS NOT SAID THE JUDICIAL POWER OF THE GENERAL GOVERNMENT SHALL EXTEND
TO ENFORCING THE PROHIBITIONS AND TO PROTECTING THE RIGHTS AND
IMMUNITIES GUARANTEED.  IT IS NOT SAID THAT BRANCH OF THE GOVERNMENT
SHALL BE AUTHORIZED TO DECLARE VOID ANY ACTION OF A STATE IN VIOLATION
OF THE PROHIBITIONS.  IT IS THE POWER OF CONGRESS WHICH HAS BEEN
ENLARGED.  CONGRESS IS AUTHORIZED TO ENFORCE THE PROHIBITIONS BY
APPROPRIATE LEGISLATION."  EX PARTE VIRGINIA, 100 U.S. 339, 345. 

IT IS SIGNIFICANT THAT THIS COURT NEVER HAS INTERFERED WITH THE
COMPOSITION OF STATE COURT JURIES EXCEPT IN CASES WHERE THIS GUIDANCE
OF CONGRESS WAS APPLICABLE.  IN AN OPINION BY MR. JUSTICE HOLMES IT
UNANIMOUSLY MADE SHORT WORK OF REJECTING A CLAIM THAT THE FOURTEENTH
AMENDMENT PROHIBITS THE STATE FROM EXCLUDING FROM THE JURY CERTAIN
OCCUPATIONAL GROUPS SUCH AS LAWYERS, PREACHERS, MINISTERS, DOCTORS,
DENTISTS, AND ENGINEERS AND FIREMEN OF RAILROAD TRAINS.  RAWLINS V.
GEORGIA, 201 U.S. 638.  CF. BROWN V. NEW JERSEY, 175 U.S. 172. 

WE DO NOT MEAN THAT NO CASE OF DISCRIMINATION IN JURY DRAWING EXCEPT
THOSE INVOLVING RACE OR COLOR CAN CARRY SUCH UNJUST CONSEQUENCES AS TO
AMOUNT TO A DENIAL OF EQUAL PROTECTION OR DUE PROCESS OF LAW.  BUT WE
DO SAY THAT SINCE CONGRESS HAS CONSIDERED THE SPECIFIC APPLICATION OF
THIS AMENDMENT TO THE STATE JURY SYSTEMS AND HAS FOUND ONLY THESE
DISCRIMINATIONS TO DESERVE GENERAL LEGISLATIVE CONDEMNATION, ONE WHO
WOULD HAVE THE JUDICIARY INTERVENE ON GROUNDS NOT COVERED BY STATUTE
MUST COMPLY WITH THE EXACTING REQUIREMENTS OF PROVING CLEARLY THAT IN
HIS OWN CASE THE PROCEDURE HAS GONE SO FAR AFIELD THAT ITS RESULTS ARE
A DENIAL OF EQUAL PROTECTION OR DUE PROCESS.  FN27 

THESE RULES TO CONFINE OUR USE OF POWER TO RESPONSIBLE LIMITS HAVE
BEEN FORMULATED AND APPLIED EVEN IN CASES WHERE THE FEDERAL RACE AND
COLOR STATUTE APPLIED.  CERTAINLY THEY SHOULD APPLY WITH EQUAL, IF NOT
GREATER, RIGOR IN CASES THAT ARE OUTSIDE THE STATUTE. 

IT IS FUNDAMENTAL IN QUESTIONING THE COMPOSITION OF A JURY THAT A
MERE SHOWING THAT A CLASS WAS NOT REPRESENTED IN A PARTICULAR JURY IS
NOT ENOUGH; THERE MUST BE A CLEAR SHOWING THAT ITS ABSENCE WAS CAUSED
BY DISCRIMINATION, AND IN NEARLY ALL CASES IT HAS BEEN SHOWN TO HAVE
PERSISTED OVER MANY YEARS.  FN28  VIRGINIA V. RIVES, 100 U.S. 313, 322
23; MARTIN V. TEXAS, 200 U.S. 316, 320-21; THOMAS V. TEXAS, 212 U.S.
278, 282; SMITH V. TEXAS, 311 U.S. 128; HILL V. TEXAS, 316 U.S. 400;
AKINS V. TEXAS, SUPRA.  ALSO, WHEN DISCRIMINATION OF AN
UNCONSTITUTIONAL KIND IS ALLEGED, THE BURDEN OF PROVING IT PURPOSEFUL
AND INTENTIONAL IS ON THE DEFENDANT.  TARRANCE V. FLORIDA, 188 U.S.
519; MARTIN V. TEXAS, 200 U.S. 316; NORRIS V. ALABAMA, 294 U.S. 587;
SNOWDEN V. HUGHES, 321 U.S. 1, 8-9; AKINS V. TEXAS, 325 U.S. 398, 400. 

OUR ONLY SOURCE OF POWER OR GUIDANCE FOR INTERFERING IN THIS CASE
WITH THE STATE COURT JURY SYSTEM IS FOUND IN THE CRYPTIC WORDS OF THE
FOURTEENTH AMENDMENT, UNAIDED BY ANY WORD FROM CONGRESS OR ANY
GOVERNING PRECEDENT IN THIS COURT.  WE CONSIDER FIRST THE CLAUSE WHICH
FORBIDS A STATE TO "DENY TO ANY PERSON WITHIN ITS JURISDICTION THE
EQUAL PROTECTION OF THE LAWS."  THIS PROHIBITS PREJUDICIAL DISPARTIES
BEFORE THE LAW.  UNDER IT A SYSTEM WHICH MIGHT BE CONSTITUTIONALLY
UNOBJECTIONABLE, IF APPLIED TO ALL, MAY BE BROUGHT WITHIN THE
PROHIBITION IF SOME HAVE MORE FAVORABLE TREATMENT.  THE INQUIRY UNDER
THIS CLAUSE INVOLVES DEFENDANTS' STANDING BEFORE THE LAW RELATIVE TO
THAT OF OTHERS ACCUSED. 

IF IT WERE PROVED THAT IN 1945 AN INEQUALITY BETWEEN THE SPECIAL
JURY'S RECORD OF CONVICTIONS AND THAT OF THE ORDINARY JURY CONTINUED AS
IT WAS FOUND BY THE JUDICIAL COUNCIL TO HAVE PREVAILED IN 1933-34, SOME
FOUNDATION WOULD BE LAID FOR A CLAIM OF UNEQUAL TREATMENT.  NO
DEFENDANT HAS A RIGHT TO ESCAPE AN EXISTING MECHANISM OF TRIAL MERELY
ON THE GROUND THAT SOME OTHER COULD BE DEVISED WHICH WOULD GIVE HIM A
BETTER CHANCE OF ACQUITTAL.  BUT IN THIS CASE AN ALTERNATIVE SYSTEM
ACTUALLY WAS PROVIDED BY THE STATE TO OTHER DEFENDANTS.  A STATE IS NOT
REQUIRED TO TRY ALL CLASSES OF OFFENSES IN THE SAME FORUM.  BUT A
DISCRETION, EVEN IF VESTED IN THE COURT, TO SHUNT A DEFENDANT BEFORE A
JURY SO CHOSEN AS GREATLY TO LESSEN HIS CHANCES WHILE OTHERS ACCUSED OF
A LIKE OFFENSE ARE TRIED BY A JURY SO DRAWN AS TO BE MORE FAVORABLE TO
THEM, WOULD HARDLY BE "EQUAL PROTECTION OF THE LAWS."  PERHAPS IT COULD
BE SHOWN THAT THE DIFFERENCE IN PERCENTAGES OF CONVICTIONS WAS NOT DUE
TO A DIFFERENCE IN ATTITUDE OF THE JURORS BUT TO A DIFFERENCE IN THE
CASES THAT WERE SELECTED FOR SPECIAL JURY TRIAL, OR TO A MORE INTENSIVE
PREPARATION AND EFFORT BY THE PROSECUTION IN CASES SINGLED OUT FOR SUCH
TRIAL.  BUT A RATIO OF CONVICTION SO DISPARATE, IF IT CONTINUED UNTIL
1945, MIGHT, IN ABSENCE OF EXPLANATION, BE TAKEN TO INDICATE THAT THE
SPECIAL JURY WAS, IN CONTRAST TO ITS ALTERNATE, ORGANIZED TO CONVICT. 
A DEFENDANT COULD COMPLAIN OF THIS INEQUALITY EVEN IF IT WERE SHOWN
THAT A SPECIAL JURY COURT NEVER HAD CONVICTED ANY DEFENDANT WHO DID NOT
DESERVE CONVICTION. 

BUT THE DEFENDANTS HAVE FAILED TO SHOW BY ANY EVIDENCE WHATEVER THAT
THIS DISPARITY IN RATIO OF CONVICTION EXISTED IN 1945 WHEN THEY WERE
TRIED.  THEY SHOW THAT IT EVER EXISTED ONLY BY THE STUDIES AND
CONCLUSIONS OF THE JUDICIAL COUNCIL.  THE SAME SOURCE SHOWS THAT IT WAS
CORRECTED BEFORE THESE DEFENDANTS WERE TRIED.  AS WE HAVE POINTED OUT,
THIS OFFICIAL BODY CHALLENGED THE FAIRNESS OF THIS DUAL SYSTEM AS
FORMERLY CONSTITUTED AND AS EARLY AS 1937 DECLARED THAT "A WELL
CONSIDERED JURY SYSTEM WILL INSURE AN IMPARTIAL CROSS-SECTION OF THE
COMMUNITY ON EVERY PETIT JURY,"  FN29  AND SET OUT MEANS TO ACHIEVE IT.
WE KNOW OF NO REASON WHY WE SHOULD IGNORE OR DISCREDIT THEIR ASSURANCE
THAT BY ADMINISTRATIVE IMPROVEMENTS IN THE SELECTION OF THE ORDINARY
JURIES THEY BECAME THE SUBSTANTIAL EQUIVALENT OF THE SPECIAL JURY
BEFORE THESE TRIALS TOOK PLACE. 

WE HOLD, THEREFORE, THAT DEFENDANTS HAVE NOT CARRIED THE BURDEN OF
SHOWING THAT THE METHOD OF THEIR TRIAL DENIED THEM EQUAL PROTECTION OF
THE LAW. 

THE DEFENDANTS' OTHER OBJECTION IS GROUNDED ON THAT CLAUSE OF THE
FOURTEENTH AMENDMENT WHICH PROVIDES, "NOR SHALL ANY STATE DEPRIVE ANY
PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW  ...
"  IT COMPRISES OBJECTIONS WHICH MIGHT BE URGED AGAINST ANY JURY MADE
UP AS THE SPECIAL JURY WAS, EVEN IF IT WERE THE ONLY JURY IN USE IN THE
STATE.  IT DOES NOT DEPEND UPON COMPARISON WITH THE JURY FACILITIES
AFFORDED OTHER DEFENDANTS. 

THIS COURT, HOWEVER, HAS NEVER ENTERTAINED A DEFENDANT'S OBJECTIONS
TO EXCLUSIONS FROM THE JURY EXCEPT WHEN HE WAS A MEMBER OF THE EXCLUDED
CLASS.  RAWLINS V. GEORGIA, 201 U.S. 638, 640.  CF. STRAUDER V. WEST
VIRGINIA, 100 U.S. 303.  RELIEF HAS BEEN HELD UNAVAILABLE TO A NEGRO
WHO OBJECTED THAT ALL WHITE PERSONS WERE PURPOSELY EXCLUDED FROM THE
GRAND JURY THAT INDICTED HIM.  HARAWAY V. STATE, 203 ARK. 912, 159
S.W.2D 733.  NEVERTHELESS, WE NEED NOT HERE DECIDE WHETHER LACK OF
IDENTITY WITH AN EXCLUDED GROUP WOULD ALONE DEFEAT AN OTHERWISE WELL
ESTABLISHED CASE UNDER THE AMENDMENT. 

THESE DEFENDANTS RELY HEAVILY ON ARGUMENTS DRAWN FROM OUR DECISIONS
IN GLASSER V. UNITED STATES, 315 U.S. 60; THIEL V. SOUTHERN PACIFIC
CO., 328 U.S. 217; AND BALLARD V. UNITED STATES, 329 U.S. 187.  THE
FACTS IN THE PRESENT CASE ARE DISTINGUISHABLE IN VITAL AND OBVIOUS
PARTICULARS FROM THOSE IN ANY OF THESE CASES.  BUT THOSE DECISIONS WERE
NOT CONSTRAINED BY ANY DUTY OF DEFERENCE TO THE AUTHORITY OF THE STATE
OVER LOCAL ADMINISTRATION OF JUSTICE.  THEY DEALT ONLY WITH JURIES IN
FEDERAL COURTS.  OVER FEDERAL PROCEEDINGS WE MAY EXERT A SUPERVISORY
POWER WITH GREATER FREEDOM TO REFLECT OUR NOTIONS OF GOOD POLICY THAN
WE MAY CONSTITUTIONALLY EXERT OVER PROCEEDINGS IN STATE COURTS, AND
THESE EXPRESSIONS OF POLICY ARE NOT NECESSARILY EMBODIED IN THE CONCEPT
OF DUE PROCESS. 

THE DUE PROCESS CLAUSE IS ONE OF COMPREHENSIVE GENERALITY, AND IN
REDUCING IT TO APPLY IN CONCRETE CASES THERE ARE DIFFERENT SCHOOLS OF
THOUGHT.  ONE IS THAT ITS CONTENT ON ANY SUBJECT IS TO BE DETERMINED BY
THE CONTENT OF CERTAIN RELEVANT OTHER AMENDMENTS IN THE BILL OF RIGHTS
WHICH ORIGINALLY IMPOSED RESTRAINTS ON ONLY THE FEDERAL GOVERNMENT BUT
WHICH THE FOURTEENTH AMENDMENT DEFLECTED AGAINST THE STATES.  THE OTHER
THEORY IS THAT THE CLAUSE HAS AN INDEPENDENT CONTENT APART FROM, AND IN
ADDITION TO, ANY AND ALL OTHER AMENDMENTS.  THIS MEANING IS DERIVED
FROM THE HISTORY, EVOLUTION AND PRESENT NATURE OF OUR INSTITUTIONS AND
IS TO BE SPELLED OUT FROM TIME TO TIME IN SPECIFIC CASES BY THE
JUDICIARY. 

TO TREAT FIRST OF THE FORMER DOCTRINE, IT STEADILY HAS BEEN RULED
THAT THE COMMANDMENTS OF THE SIXTH AND SEVENTH AMENDMENTS, WHICH
REQUIRE JURY TRIAL IN CRIMINAL AND CERTAIN CIVIL CASES, ARE NOT PICKED
UP BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH SO AS TO BECOME
LIMITATIONS ON THE STATES.  "THIS COURT HAS RULED THAT CONSISTENTLY
WITH THOSE AMENDMENTS TRIAL BY JURY MAY BE MODIFIED BY A STATE OR
ABOLISHED ALTOGETHER."  PALKO V. CONNECTICUT, 302 U.S. 319, 324, AND
CASES THERE CITED.  UNLESS WE ARE NOW SO TO CHANGE OUR INTERPRETATION
AS TO WITHDRAW FROM THE STATES THE POWER SO LATELY CONCEDED TO BE
THEIRS, THIS WOULD END THE MATTER UNDER THE VIEW THAT THE FORCE OF THE
DUE PROCESS CLAUSE IS EXHAUSTED WHEN IT HAS APPLIED THE PRINCIPLES OF
OTHER RELEVANT AMENDMENTS. 

BUT THIS COURT HAS CONSTRUED IT TO BE INHERENT IN THE INDEPENDENT
CONCEPT OF DUE PROCESS THAT CONDEMNATION SHALL BE RENDERED ONLY AFTER A
TRIAL, IN WHICH THE HEARING IS A REAL ONE, NOT A SHAM OR PRETENSE. 
PALKO V. CONNECTICUT, 302 U.S. 319, 327; MOONEY V. HOLOHAN, 294 U.S.
103; MOORE V. DEMPSEY, 261 U.S. 86.  TRIAL MUST BE HELD BEFORE A
TRIBUNAL NOT BIASED BY INTEREST IN THE EVENT.  TUMEY V. OHIO, 273 U.S.
510.  UNDOUBTEDLY A SYSTEM OF EXCLUSIONS COULD BE SO MANIPULATED AS TO
CALL A JURY BEFORE WHICH DEFENDANTS WOULD HAVE SO LITTLE CHANCE OF A
DECISION ON THE EVIDENCE THAT IT WOULD CONSTITUTE A DENIAL OF DUE
PROCESS.  A VERDICT ON THE EVIDENCE, HOWEVER, IS ALL AN ACCUSED CAN
CLAIM; HE IS NOT ENTITLED TO A SET-UP THAT WILL GIVE A CHANCE OF ESCAPE
AFTER HE IS PROPERLY PROVEN GUILTY.  SOCIETY ALSO HAS A RIGHT TO A FAIR
TRIAL.  THE DEFENDANT'S RIGHT IS A NEUTRAL JURY.  HE HAS NO
CONSTITUTIONAL RIGHT TO FRIENDS ON THE JURY. 

TO ESTABLISH THE UNFAIRNESS OF THIS TRIBUNAL AND THE LACK OF DUE
PROCESS AFFORDED TO ONE WHO IS BEING TRIED BEFORE IT, THE DEFENDANTS
ASSERT TWO DEFECTS IN ITS COMPOSITION:  FIRST, THAT IT
UNCONSTITUTIONALLY EXCLUDED WOMEN, AND, SECOND, THAT IT
UNCONSTITUTIONALLY EXCLUDED LABORERS, CRAFTSMEN, SERVICE EMPLOYEES, AND
OTHERS OF LIKE OCCUPATION, AMOUNTING IN SUM TO THE EXCLUSION OF AN
ECONOMIC CLASS. 

ASSUMING THAT DEFENDANTS, NOT BEING WOMEN, HAVE STANDING TO COMPLAIN
OF EXCLUSION OF WOMEN FROM THE GENERAL AND SPECIAL JURY PANELS, WE ARE
UNABLE TO SUSTAIN THEIR OBJECTION.  APPROXIMATELY 7,000 WOMEN WERE ON
THE GENERAL PANEL OF 60,000 AND 30 WERE ON THE SPECIAL PANEL.  ONE
SERVED ON THE JURY WHICH CONVICTED THE PETITIONERS.  THE PROPORTION OF
WOMEN ON THE JURY PANELS DID NOT EQUAL THEIR PROPORTION OF THE
POPULATION.  THERE MAY BE NO LOGICAL REASON FOR THIS, BUT THERE IS AN
HISTORICAL ONE.  UNTIL RECENTLY, AND FOR NEARLY A HALF-CENTURY AFTER
THE FOURTEENTH AMENDMENT WAS ADOPTED, IT WAS UNIVERSAL PRACTICE IN THE
UNITED STATES TO ALLOW ONLY MEN TO SIT ON JURIES.  THE FIRST STATE TO
PERMIT WOMEN JURORS WAS WASHINGTON, AND IT DID NOT DO SO UNTIL 1911. 
FN30  IN 1942 ONLY 28 STATES PERMITTED WOMEN TO SERVE ON JURIES AND
THEY WERE STILL DISQUALIFIED IN THE OTHER 20.  MOREOVER, IN 15 OF THE
28 STATES WHICH PERMITTED WOMEN TO SERVE, THEY MIGHT CLAIM EXEMPTION
BECAUSE OF THEIR SEX.  FN31  IT WOULD, IN THE LIGHT OF THIS HISTORY,
TAKE SOMETHING MORE THAN A JUDICIAL INTERPRETATION TO SPELL OUT OF THE
CONSTITUTION A COMMAND TO SET ASIDE VERDICTS RENDERED BY JURIES
UNLEAVENED BY FEMININE INFLUENCE.  THE CONTENTION THAT WOMEN SHOULD BE
ON THE JURY IS NOT BASED ON THE CONSTITUTION, IT IS BASED ON A CHANGING
VIEW OF THE RIGHTS AND RESPONSIBILITIES OF WOMEN IN OUR PUBLIC LIFE,
WHICH HAS PROGRESSED IN ALL PHASES OF LIFE, INCLUDING JURY DUTY, BUT
HAS ACHIEVED CONSTITUTIONAL COMPULSION ON THE STATES ONLY IN THE GRANT
OF THE FRANCHISE BY THE NINETEENTH AMENDMENT.  WE MAY INSIST ON THEIR
INCLUSION ON FEDERAL JURIES WHERE BY STATE LAW THEY ARE ELIGIBLE  FN32
BUT WOMAN JURY SERVICE HAS NOT SO BECOME A PART OF THE TEXTUAL OR
CUSTOMARY LAW OF THE LAND THAT ONE CONVICTED OF CRIME MUST BE SET FREE
BY THIS COURT IF HIS STATE HAS LAGGED BEHIND WHAT WE PERSONALLY MAY
REGARD AS THE MOST DESIRABLE PRACTICE IN RECOGNIZING THE RIGHTS AND
OBLIGATIONS OF WOMANHOOD. 

THE OTHER OBJECTION WHICH PETITIONERS URGE UNDER THE DUE PROCESS
CLAUSE IS THAT THE SPECIAL JURY PANEL WAS INVALIDATED BY EXCLUSION OF
AN ECONOMIC GROUP COMPRISING SUCH SPECIFIED CLASSIFICATIONS AS
LABORERS, CRAFTSMEN AND SERVICE EMPLOYEES.  THEY ARGUE THAT THE JURY
PANEL WAS CHOSEN "WITH A PURPOSE TO OBTAIN PERSONS OF CONSERVATIVE
VIEWS, PERSONS OF THE UPPER ECONOMIC AND SOCIAL STRATUM IN NEW YORK
COUNTY, PERSONS HAVING A TENDENCY TO CONVICT DEFENDANTS ACCUSED OF
CRIME, AND TO EXCLUDE THOSE WHO MIGHT UNDERSTAND THE POINT OF VIEW OF
THE LABORING MAN."  AS WE HAVE POINTED OUT, THERE IS NO PROOF OF
EXCLUSION OF THESE.  FN33  AT MOST, THE PROOF SHOWS LACK OF
PROPORTIONAL REPRESENTATION AND THERE IS AN UTTER DEFICIENCY OF PROOF
THAT THIS WAS THE RESULT OF A PURPOSE TO DISCRIMINATE AGAINST THIS
GROUP AS SUCH.  THE UNCONTRADICTED EVIDENCE IS THAT NO PERSON WAS
EXCLUDED BECAUSE OF HIS OCCUPATION OR ECONOMIC STATUS.  ALL WERE
SUBJECTED TO THE SAME TESTS OF INTELLIGENCE, CITIZENSHIP AND
UNDERSTANDING OF ENGLISH.  THE STATE'S RIGHT TO APPLY THESE TESTS IS
NOT OPEN TO DOUBT EVEN THOUGH THEY DISQUALIFY, ESPECIALLY IN THE
CONDITIONS THAT PREVAIL IN NEW YORK, A DISPROPORTIONATE NUMBER OF
MANUAL WORKERS.  A FAIR APPLICATION OF LITERACY, INTELLIGENCE AND OTHER
TESTS WOULD HARDLY ACT WITH PROPORTIONAL EQUALITY ON ALL LEVELS OF
LIFE.  THE MOST THAT THE EVIDENCE DOES IS TO RAISE, RATHER THAN ANSWER,
THE QUESTION WHETHER THERE WAS AN UNLAWFUL DISPROPORTIONATE
REPRESENTATION OF LOWER INCOME GROUPS ON THE SPECIAL JURY. 

EVEN IN THE NEGRO CASES, THIS COURT HAS NEVER UNDERTAKEN TO SAY THAT
A WANT OF PROPORTIONATE REPRESENTATION OF GROUPS, WHICH IS NOT PROVED
TO BE DELIBERATE AND INTENTIONAL, IS SUFFICIENT TO VIOLATE THE
CONSTITUTION.  AKINS V. TEXAS, 325 U.S. 398.  IF THE COURT HAS
HESITATED TO REQUIRE PROPORTIONAL REPRESENTATION WHERE BUT TWO GROUPS
NEED BE CONSIDERED AND IDENTIFICATION OF EACH GROUP IS FAIRLY CLEAR,
HOW MUCH MORE IMPRUDENT WOULD IT BE TO REQUIRE PROPORTIONAL
REPRESENTATION OF ECONOMIC CLASSES.  THE OCCUPATIONS WHICH ARE SAID TO
COMPRISE THE ECONOMIC CLASS ALLEGEDLY EXCLUDED FROM THE SPECIAL PANEL
ARE SEPARATED BY SUCH UNCERTAIN LINES THAT THE DEFENDANTS' TWO EXHIBITS
ARE BASED ON DIFFERENT CLASSIFICATIONS WHICH ARE NUMEROUS AND
OVERLAPPING. 

NO SIGNIFICANT DIFFERENCE IN VIEWPOINT BETWEEN THOSE ALLEGEDLY
EXCLUDED AND THOSE PERMITTED TO SERVE HAS BEEN PROVED AND NOTHING IN
OUR EXPERIENCE PERMITS US TO ASSUME IT.  FN34  IT WOULD REQUIRE LARGE
ASSUMPTIONS TO SAY THAT ONE'S PRESENT ECONOMIC STATUS, IN A SOCIETY AS
FLUID AS OURS, DETERMINES HIS OUTLOOK IN THE TRIAL OF CASES IN GENERAL
OR OF THIS ONE IN PARTICULAR.  THERE IS OF COURSE LEGITIMATE CONFLICT
OF INTEREST AMONG ECONOMIC GROUPS, BUT THEY ARE SO MANY AND SO OVERLIE
EACH OTHER THAT NOT ALL CAN BE SIGNIFICANT.  THERE IS ENTREPRENEUR AND
WAGE-EARNER, CONSUMER AND PRODUCER, TAXPAYER AND CIVIL SERVANT, FOREMAN
AND LABORER, WHITE-COLLAR WORKER AND MANUAL LABORER.  BUT WE ARE NOT
READY TO ASSUME THAT THESE DIFFERENCES OF FUNCTION DEGENERATE INTO A
HOSTILITY SUCH THAT ONE CANNOT EXPECT JUSTICE AT THE HANDS OF
OCCUPATIONS AND GROUPS OTHER THAN HIS OWN.  WERE THIS TRUE, AN
EXTREMELY RICH MAN COULD RARELY HAVE A FAIR TRIAL, FOR HIS CLASS IS NOT
OFTEN FOUND SITTING ON JURIES.  FN35 

NOR IS THERE ANY SUCH PERSUASIVE REASON FOR DEALING WITH PURPOSEFUL
OCCUPATIONAL OR ECONOMIC DISCRIMINATIONS IF THEY DO EXIST AS
PRESUMPTIVE CONSTITUTIONAL VIOLATIONS, AS WOULD BE THE CASE WITH REGARD
TO PURPOSEFUL DISCRIMINATIONS BECAUSE OF RACE OR COLOR.  WE DO NOT NEED
TO FIND PREJUDICE IN THESE LATTER EXCLUSIONS, BUT CF. STRAUDER V. WEST
VIRGINIA, 100 U.S. 303, 306-309, FOR CONGRESS HAS FORBIDDEN THEM, AND A
TRIBUNAL SET UP IN DEFIANCE OF ITS COMMAND IS AN UNLAWFUL ONE WHETHER
WE THINK IT UNFAIR OR NOT.  BUT AS TO OTHER EXCLUSIONS, WE MUST FIND
THEM SUCH AS TO DENY A FAIR TRIAL BEFORE THEY CAN BE LABELED AS
UNCONSTITUTIONAL. 

THERE MAY BE SPECIAL CASES WHERE EXCLUSION OF LABORERS WOULD INDICATE
THAT THOSE SITTING WERE PREJUDICED AGAINST LABOR DEFENDANTS, AS WHERE A
LABOR LEADER IS ON TRIAL ON CHARGES GROWING OUT OF A LABOR DISPUTE. 
THE SITUATION WOULD BE SIMILAR TO THAT OF A NEGRO WHO CONFRONTS A JURY
ON WHICH NO NEGRO IS ALLOWED TO SIT.  HE MIGHT VERY WELL SAY THAT A
COMMUNITY WHICH PURPOSELY DISCRIMINATES AGAINST ALL NEGROES
DISCRIMINATES AGAINST HIM.  BUT IT IS QUITE DIFFERENT IF WE ASSUME THAT
"PERSONS OF CONSERVATIVE VIEWS" DO PREDOMINATE ON THE SPECIAL JURY. 
DOES IT FOLLOW THAT "LIBERALS" WOULD BE MORE FAVORABLY DISPOSED TOWARD
A DEFENSE THAT NOMINAL LABOR LEADERS WERE HIRING OUT TO EMPLOYERS TO
"HANDLE" THEIR LABOR PROBLEMS?  DOES IT FOLLOW THAT A JURY FROM THE
"UPPER ECONOMIC AND SOCIAL STRATUM" WOULD BE MORE DISPOSED TO CONVICT
THOSE WHO SO UNDERTAKE TO SERVE TWO MASTERS THAN "THOSE WHO MIGHT
UNDERSTAND THE POINT OF VIEW OF THE LABORING MAN"?  WE SHOULD THINK IT
MIGHT BE THE OTHER WAY ABOUT AND DEFENDANTS OFFER NOTHING BUT ASSERTION
TO CONVINCE US.  OUR ATTENTION, MOREOVER, IS CALLED TO FEDERAL COURT
RECORDS WHICH SHOW THAT FAY REPORTED A NET TAXABLE INCOME OF OVER
$65,000 FOR THE YEARS 1940 TO 1942, WHILE BOVE REPORTED OVER $39,000
FOR A SIMILAR PERIOD, BOTH OF THEM EXCLUSIVE OF THE SUMS RECEIVED FROM
THE CONTRACTORS AND INVOLVED IN THESE CHARGES.  THESE EARNINGS DO NOT
IDENTIFY THEM VERY CLOSELY WITH THE VIEWPOINT OF THE DEPRESSED
CLASSES.  THE GROUP WITH WHICH THEY MIGHT BE MOST CLOSELY IDENTIFIED IS
ORGANIZED LABOR.  BUT IT CANNOT BE CLAIMED THAT UNION MEMBERS WERE
EXCLUDED FROM THIS SPECIAL PANEL SINCE THREE UNION MEMBERS WERE CALLED
FOR EXAMINATION ON THIS PARTICULAR JURY, TWO BEING REJECTED BY THE
PEOPLE AND ONE BY THE DEFENDANTS THEMSELVES.  THE DEFENDANTS HAVE SHOWN
NO INTENTIONAL AND PURPOSEFUL EXCLUSION OF ANY CLASS, AND THEY HAVE
SHOWN NONE THAT WAS PREJUDICIAL TO THEM.  THEY HAVE HAD A FAIR TRIAL,
AND NO REASON APPEARS WHY THEY SHOULD ESCAPE ITS RESULTS. 

THE FUNCTION OF THIS FEDERAL COURT UNDER THE FOURTEENTH AMENDMENT IN
REFERENCE TO STATE JURIES IS NOT TO PRESCRIBE PROCEDURES BUT IS
ESSENTIALLY TO PROTECT THE INTEGRITY OF THE TRIAL PROCESS BY WHATEVER
METHOD THE STATE SEES FIT TO EMPLOY.  NO DEVICE, WHETHER CONVENTIONAL
OR NEWLY DEVISED, CAN BE SET UP BY WHICH THE JUDICIAL PROCESS IS
REDUCED TO A SHAM AND COURTS ARE ORGANIZED TO CONVICT.  THEY MUST BE
ORGANIZED TO HEAR, TRY AND DETERMINE ON THE EVIDENCE AND THE LAW.  BUT
BEYOND REQUIRING CONFORMITY TO STANDARDS OF FUNDAMENTAL FAIRNESS THAT
HAVE WON LEGAL RECOGNITION, THIS COURT ALWAYS HAS BEEN CAREFUL NOT SO
TO INTERPRET THIS AMENDMENT AS TO IMPOSE UNIFORM PROCEDURES UPON THE
SEVERAL STATES WHOSE LEGAL SYSTEMS STEM FROM DIVERSE SOURCES OF LAW AND
REFLECT DIFFERENT HISTORICAL INFLUENCES.  FN36 

WE ADHERE TO THIS POLICY OF SELF-RESTRAINT AND WILL NOT USE THIS
GREAT CENTRALIZING AMENDMENT TO STANDARDIZE ADMINISTRATION OF JUSTICE
AND STAGNATE LOCAL VARIATIONS IN PRACTICE.  THE JURY SYSTEM IS ONE
WHICH HAS UNDERGONE GREAT MODIFICATIONS IN ITS LONG HISTORY, SEE PEOPLE
V. DUNN, 157 N.Y. 528, 52 N.E. 572, AND IT IS STILL UNDERGOING REVISION
AND ADAPTATION TO ADJUST IT TO THE TENSIONS OF TIME AND LOCALITY.  IN
NO PLACE ARE AMERICAN INSTITUTIONS PUT TO GREATER STRAIN THAN IN THE
CITY OF NEW YORK WITH ITS SOME SEVEN AND A HALF MILLION INHABITANTS
GATHERED FROM THE FOUR CORNERS OF THE EARTH AND A DAILY TRANSIENT FLOW
OF TWO MILLION, WITH ALL THAT THIS IMPLIES OF DIFFICULTY IN LAW
ENFORCEMENT.  THE CITIZEN THERE, AS IN OTHER JURISDICTIONS, HAS BEEN
CALLED FOR JURY SERVICE TO PERFORM A VARIETY OF FUNCTIONS - THE GRAND
JURY, THE PETIT JURY, THE SHERIFF'S JURY, THE CORONER'S JURY, THE
FOREIGN JURY, THE STRUCK JURY, AND THE SPECIAL JURY.  THE STATES HAVE
HAD DIFFERENT AND CONSTANTLY CHANGING TESTS OF ELIGIBILITY FOR
SERVICE.  EVOLUTION OF THE JURY CONTINUES EVEN NOW, AND MANY
EXPERIMENTS ARE UNDER WAY THAT WERE STRANGE TO THE COMMON LAW.  SOME
STATES HAVE TAKEN MEASURES TO RESTRICT ITS USE; OTHERS, WHERE JURY
SERVICE IS A HARDSHIP, DIMINISH THE REQUIRED NUMBER OF JURORS.  SOME
STATES NO LONGER REQUIRE THE UNANIMOUS VERDICT; OTHERS ADD ALTERNATE OR
SUBSTITUTE JURORS TO AVOID MISTRIAL IN CASE OF SICKNESS OR DEATH.  SOME
STATES HAVE ABOLISHED THE GENERAL VERDICT AND REQUIRE ANSWERS TO
SPECIFIC QUESTIONS.  FN37  WELL HAS IT BEEN SAID OF OUR POWER TO LIMIT
STATE ACTION THAT "TO STAY EXPERIMENTATION IN THINGS SOCIAL AND
ECONOMIC IS A GRAVE RESPONSIBILITY.  DENIAL OF THE RIGHT TO EXPERIMENT
MAY BE FRAUGHT WITH SERIOUS CONSEQUENCES TO THE NATION.  IT IS ONE OF
THE HAPPY INCIDENTS OF THE FEDERAL SYSTEM THAT A SINGLE COURAGEOUS
STATE MAY, IF ITS CITIZENS CHOOSE, SERVE AS A LABORATORY; AND TRY NOVEL
SOCIAL AND ECONOMIC EXPERIMENTS WITHOUT RISK TO THE REST OF THE
COUNTRY."  MR. JUSTICE BRANDEIS, DISSENTING IN NEW STATE ICE CO. V.
LIEBMANN, 285 U.S. 262, 311. 

AS THERE IS NO VIOLATION OF A FEDERAL STATUTE ALLEGED, THE CHALLENGE
TO THIS JUDGMENT UNDER THE DUE PROCESS CLAUSE MUST STAND OR FALL ON A
SHOWING THAT THESE DEFENDANTS HAVE HAD A TRIAL SO UNFAIR AS TO AMOUNT
TO A TAKING OF THEIR LIBERTY WITHOUT DUE PROCESS OF LAW.  ON THIS
RECORD WE THINK THAT SHOWING HAS NOT BEEN MADE.  AFFIRMED. 

FN1  270 APP. DIV. 261, 59 N.Y.S.2D 127. 

FN2  CODE OF CRIMINAL PROCEDURE, SECS. 520, 543-A, 66 MCKINNEY'S
CONSOLIDATED LAWS OF NEW YORK, PART 2, PP. 328-29, 429. 

FN3  296 N.Y. 510, 68 N.E.2D 453. 

FN4 BUT 7,000 OF THE 60,000 ON THE GENERAL JURY PANEL, OR 11%, ARE
WOMEN.  IT IS ALMOST FRIVOLOUS TO ASSERT THAT THERE IS A BIAS AGAINST
THEIR INCLUSION ON JURIES.  CF. AKINS V. TEXAS, 325 U.S. 398, 403. 

FN5  JUDICIARY LAW, SEC. 596, 29 MCKINNEY'S CONSOLIDATED LAWS OF NEW
YORK (POCKET PART, 1946), PP. 131-32. 

FN6  JUDICIARY LAW, SEC. 599, 29 MCKINNEY'S CONSOLIDATED LAWS OF NEW
YORK (POCKET PART, 1946), PP. 133-34. 

FN7  JUDICIARY LAW, SEC. 596, SUPRA. 

FN8  JUDICIARY LAW, SEC. 599, SUPRA. 

FN9  JUDICIARY LAW, SEC. 749-AA3, 29 MCKINNEY'S CONSOLIDATED LAWS OF
NEW YORK, PP. 512-13. 

FN10  JUDICIARY LAW, SEC. 749-AA2, 29 MCKINNEY'S CONSOLIDATED LAWS OF
NEW YORK, P. 512. 

FN11  JUDICIARY LAW, SEC. 749-AA4, 29 MCKINNEY'S CONSOLIDATED LAWS OF
NEW YORK, PP. 513-14. 

FN12  N.Y. LAWS 1896, C. 378; N.Y. LAWS 1901, C. 602. 

FN13  THE OTHER CASES CITED IN THE PER CURIAM AFFIRMANCE WERE STORTI
V. MASSACHUSETTS, 183 U.S. 138, 141, AND ANDREWS V. SWARTZ, 156 U.S.
272, BOTH OF WHICH DISAPPROVE THE USE OF HABEAS CORPUS AS A SUBSTITUTE
FOR WRIT OF ERROR.  IT IS NOT CLEAR, THEREFORE, HOW MUCH THE AFFIRMANCE
OF THE HALL CASE DEPENDED ON THAT PROCEDURAL GROUND RATHER THAN ON A
DISPOSITION OF THE MERITS.  MOREOVER, THE GROUNDS URGED AGAINST THE
SPECIAL JURY IN THAT CASE RELATED TO ITS SELECTION FROM A PANEL WHICH
WAS ONLY A SEGMENT OF THE GENERAL PANEL AND DID NOT ASSERT THE
EXCLUSION OF PARTICULAR GROUPS. 

FN14  THE TABLE WAS PREPARED AT THE REQUEST OF PETITIONERS' COUNSEL
BY AN ATTORNEY WHO TESTIFIED THAT HE "FOUND VARIOUS OCCUPATIONS LISTED"
AND "TRIED TO CLASSIFY THEM TO GROUPS, MAKING THEM NOT TOO NUMEROUS." 

TOTAL NUMBER OF SPECIAL JURORS ON FILE IN NEW YORK COUNTY 

CLERK'S OFFICE................................................
2,911 

TOTAL NUMBER WITH CLASSIFIABLE OCCUPATIONS.....................
2,743 

AUDITORS AND ACCOUNTANTS.......................................
166 

BANKERS........................................................
170 

MANUFACTURERS.................................................. 106 

REAL ESTATE BROKERS............................................
117 

RETIRED........................................................
62 

ARCHITECTS AND ENGINEERS.......................................
229 

EDUCATORS, TEACHERS, LIBRARIANS................................
27 

EXECUTIVES, MANAGERS OF INDUSTRIAL ENTERPRISES.................
470 

STOCK BROKERS..................................................
185 

SALESMEN, PROMOTERS OF BUSINESS ENTERPRISES AND ADVERTISING 

MEN...........................................................
438 

NEWSPAPER MEN, EDITORIAL WRITERS AND OTHERS ENGAGED IN THE 

DISSEMINATION OF INFORMATION..................................
148 

MECHANICS......................................................
5 

INSURANCE MEN..................................................
166 

TRAVEL AGENCY MEN..............................................
10 

CIVIL SERVICE EMPLOYEES........................................
21    OFFICE CLERKS..................................................
94 

RETAIL MERCHANTS...............................................
144 

ENTERTAINERS...................................................
26 

BUILDING AND CONSTRUCTION SUPERINTENDENTS......................
70 

CHEMISTS AND PHYSICISTS........................................
66 

ATTORNEYS......................................................
5 

LABORERS.......................................................
NONE 

LABOR UNION REPRESENTATIVES....................................
1    HOUSEWIVES.....................................................
20

   - THERE ARE ONLY ABOUT 30 WOMEN ON THE ENTIRE SPECIAL JURY LIST
 

PETITIONERS' ATTORNEYS REQUESTED THE BUREAU OF LABOR STATISTICS OF
THE UNITED STATES DEPARTMENT OF LABOR TO CONFORM THE CLASSIFICATIONS OF
THE ABOVE TABLE TO THE CENSUS CLASSIFICATIONS.  IN THE TABLE THUS
PREPARED, TWENTY-ONE PERSONS ARE CLASSED AS CIVIL SERVICE EMPLOYEES AND
A NOTE CAUTIONS THAT "SOME MEMBERS OF THIS GROUP UNDOUBTEDLY BELONG
ELSEWHERE, AS UNDER SERVICE TRADES, OR LABORERS."  ONE HUNDRED AND
SIXTY-FIVE PERSONS ARE LISTED AS UNCLASSIFIABLE IN THE BUREAU'S TABLE. 

FN15 

OCCUPATIONS OF EMPLOYED PERSONS (EXCEPT ON PUBLIC EMERGENCY WORK) AND
OF EXPERIENCED WORKERS SEEKING WORK, RESIDING IN MANHATTAN IN THE WEEK
OF MARCH 24 TO 30, 1940, COMPARED WITH OCCUPATIONS OF SPECIAL JURORS ON
FILE IN NEW YORK COUNTY CLERK'S OFFICE, JANUARY 31, 1945. 

(CHART OMITTED) 

FN16  JUDICIARY LAW, SECS. 40-48, 29 MCKINNEY'S CONSOLIDATED LAWS OF
NEW YORK, PP. 58-62, (POCKET PART, 1946), P. 17. 

FN17  TO OBTAIN A STRUCK JURY, THE COMMISSIONER OF JURORS OR THE
COUNTY CLERK, IN THE PRESENCE OF THE PARTIES, SELECTED FROM THE GENERAL
JURY LIST THE NAMES OF FORTY-EIGHT PERSONS WHOM HE DEEMED MOST
INDIFFERENT BETWEEN THE PARTIES AND BEST QUALIFIED TO TRY THE CASE. 
THE PARTIES THEN ALTERNATELY WOULD EACH STRIKE OFF TWELVE NAMES FROM
THE LIST.  THE JURY WAS CHOSEN FROM THE REMAINING TWENTY-FOUR NAMES. 

FN18  THE FOREIGN JURY WAS CHOSEN FROM A COUNTY ADJOINING THAT WHERE
THE TRIAL WAS TO BE HELD, IN CASES IN WHICH IT WAS THOUGHT A MORE
IMPARTIAL JURY WOULD THUS BE HAD.  IT LOST ITS USEFULNESS BECAUSE OF
THE EASE WITH WHICH A CHANGE OF VENUE MIGHT BE OBTAINED.  CODE OF
CRIMINAL PROCEDURE, SEC. 344.2, 66 MCKINNEY'S CONSOLIDATED LAWS OF NEW
YORK, PART 1, P. 622. 

FN19  THIRD ANNUAL REPORT OF THE JUDICIAL COUNCIL OF THE STATE OF NEW
YORK (1937) 123-28. 

FN20  ID. AT 127. 

FN21  FOURTH ANNUAL REPORT OF THE JUDICIAL COUNCIL OF THE STATE OF
NEW YORK (1938) 46. 

FN22  ID. AT 47. 

FN23  FIFTH ANNUAL REPORT OF THE JUDICIAL COUNCIL OF THE STATE OF NEW
YORK (1939) 42-43. 

FN24  ELEVENTH ANNUAL REPORT OF THE JUDICIAL COUNCIL OF THE STATE OF
NEW YORK (1945) 49-50. 

FN25  SEE NOTE 2, SUPRA. 

FN26  LOUGHRAN, CH. J., NEW YORK COURT OF APPEALS, AND MARTIN, P.J.,
APP. DIV. (1ST DEPT.). 

FN27  IT IS UNNECESSARY TO DECIDE WHETHER THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT MIGHT OF ITS OWN FORCE PROHIBIT
DISCRIMINATION ON ACCOUNT OF RACE IN THE SELECTION OF JURORS, SO THAT
SUCH DISCRIMINATION WOULD VIOLATE THE DUE PROCESS CLAUSE OF THE SAME
AMENDMENT.  NOR NEED WE DECIDE WHETHER THE DUE PROCESS CLAUSE ALONE
OUTLAWS SUCH DISCRIMINATION.  CF. HILL V. TEXAS, 316 U.S. 400, 406:
"BUT NO STATE IS AT LIBERTY TO IMPOSE UPON ONE CHARGED WITH CRIME A
DISCRIMINATION IN ITS TRIAL PROCEDURE WHICH THE CONSTITUTION, AND AN
ACT OF CONGRESS PASSED PURSUANT TO THE CONSTITUTION, ALIKE FORBID.  ...
IT IS OUR DUTY AS WELL AS THE STATE'S TO SEE TO IT THAT THROUGHOUT THE
PROCEDURE FOR BRINGING HIM TO JUSTICE HE SHALL ENJOY THE PROTECTION
WHICH THE CONSTITUTION GUARANTEES.  WHERE, AS IN THIS CASE, TIMELY
OBJECTION HAS LAID BARE A DISCRIMINATION IN THE SELECTION OF GRAND
JURORS, THE CONVICTION CANNOT STAND, BECAUSE THE CONSTITUTION PROHIBITS
THE PROCEDURE BY WHICH IT WAS OBTAINED.  EQUAL PROTECTION OF THE LAWS
IS SOMETHING MORE THAN AN ABSTRACT RIGHT.  IT IS A COMMAND WHICH THE
STATE MUST RESPECT, THE BENEFITS OF WHICH EVERY PERSON MAY DEMAND." 

FN28  OFFICIAL RECORDS OF THE NEW YORK COUNTY CLERK SHOW THAT IN THE
FIVE-YEAR PERIOD, 1940-44, 2,407 NEW JURORS WERE PUT ON THE SPECIAL
PANEL WHICH IS MAINTAINED AT ABOUT 3,000, AND 2,692 PERSONS WERE
REMOVED FROM THE LIST. 

FN29  THIRD ANNUAL REPORT OF THE JUDICIAL COUNCIL OF THE STATE OF NEW
YORK (1937) 123. 

FN30  1911 LAWS OF WASHINGTON, C. 57.  SEE CARSON, WOMEN JURORS
(1928). 

FN31  REPORT TO THE JUDICIAL CONFERENCE OF THE COMMITTEE ON SELECTION
OF JURORS (1942) 23.  A LATER BULLETIN OF THE WOMEN'S BUREAU OF THE
UNITED STATES DEPARTMENT OF LABOR SHOWED THAT IN 1945, 31 STATES
PERMITTED JURY SERVICE BY WOMEN, EXEMPTION BEING ALLOWED IN 15 OF
THEM.  BUT 17 STATES STILL WITHHELD THEIR APPROVAL OF WOMEN ON JURIES. 
A PAMPHLET OF THE WOMEN'S BUREAU, AS YET UNPUBLISHED, SHOWS THAT AT
THIS TIME FOUR MORE STATES FIND WOMEN ACCEPTABLE AS JURORS. 

FN32  SEE JUDICIAL CODE, SECS. 275, 276, 28 U.S.C. SECS. 411, 412;
BALLARD V. UNITED STATES, 329 U.S. 187. 

FN33  IT IS WORTH COMMENT THAT THE ANNUAL REPORTS OF THE JUDICIAL
COUNCIL, ON WHICH PETITIONERS HEAVILY RELY, ALTHOUGH THEY URGE STRONGLY
AND PERSISTENTLY THAT THE SPECIAL JURY BE ABOLISHED, DO NOT GIVE AS ONE
OF THE REASONS THE SOCIAL MAKE-UP OF THE PANEL.  THIS IS ODD, IF THAT
REASON WERE VALID, SINCE THE COUNCIL OBVIOUSLY WAS INTERESTED IN URGING
ALL GOOD REASONS WHICH WOULD SUPPORT ITS STRONG DISAPPROVAL AND ITS
REITERATED RECOMMENDATION. 

FN34  CF. RAWLINS V. GEORGIA, 201 U.S. 638, 640:  "THE NATURE OF THE
CLASSES EXCLUDED WAS NOT SUCH AS WAS LIKELY TO AFFECT THE CONDUCT OF
THE MEMBERS AS JURYMEN, OR TO MAKE THEM ACT OTHERWISE THAN THOSE WHO
WERE DRAWN WOULD ACT." 

FN35  WE ARE UNABLE TO SAY THAT MERE EXCLUSION OF JURORS OF ONE'S
OCCUPATION RENDERS A JURY UNCONSTITUTIONAL, EVEN THOUGH THE OCCUPATION
TENDS TO GIVE THOSE WHO PRACTICE IT A PARTICULAR AND DISTINCTIVE
VIEWPOINT.  NEW YORK HAS SOME 20,000 POLICEMEN PRESUMABLY OTHERWISE
QUALIFIED FOR JURY SERVICE.  IT IS NOT UNKNOWN THAT A DEFENDANT IS A
POLICEMAN.  CAN HE NOT BE CONSTITUTIONALLY TRIED IF POLICEMEN ARE
EXEMPT FROM SERVICE OR EVEN EXCLUDED FROM THE PANEL?  THERE IS SOME
DISCRETION LEFT IN THE STATES TO SAY THAT PERSONS IN SOME OCCUPATIONS
ARE MORE NEEDED AT THEIR WORK THAN ON JURY DUTY AND, PERHAPS, THAT SOME
HAVE OCCUPATIONAL ATTITUDES THAT MAKE IT APPROPRIATE TO LEAVE THEM OFF
THE LIST SO LONG AS AN UNEXCEPTIONABLE LIST REMAINS ON CALL.  CF.
RAWLINS V. GEORGIA, 201 U.S. 638.  SEE KNOX, SELECTION OF FEDERAL
JURORS, 31 JOURNAL OF THE AMERICAN JUDICATURE SOCIETY 9, 11. 

FN36  WHILE ENGLISH COMMON LAW IS THE SOURCE FROM WHICH IT OFTEN IS
ASSUMED A UNIFORM SYSTEM WAS DERIVED BY THE STATES OF THE UNITED
STATES, IT MUST NOT BE OVERLOOKED THAT MANY OF THEM HAVE BEEN DEEPLY
INFLUENCED BY ROMAN AND CIVIL LAW TO WHICH THEIR HISTORY EXPOSED THEM. 
NONE OF THE TERRITORY WEST OF THE ALLEGHENIES WAS MORE THAN BRIEFLY OR
CASUALLY SUBJECT TO COMMON LAW BEFORE THE REVOLUTION.  FRENCH CIVIL LAW
PREVAILED IN MOST OF THE OHIO AND MISSISSIPPI VALLEYS FROM THEIR
SETTLEMENT UNTIL WOLFE'S DECISIVE VICTORY BEFORE QUEBEC IN 1763.  ITS
ASCENDANCY IN THE NORTH THEN WAS BROKEN, AND IN 1803 THE LOUISIANA
PURCHASE ENDED FRENCH SOVEREIGNTY IN THE REST OF THE MISSISSIPPI AREA. 
LOUISIANA CONTINUES, HOWEVER, A SYSTEM OF LAW BASED ON THE CODE
NAPOLEON.  THE SOUTHWEST AND FLORIDA ONCE WERE SPANISH.  SEE COLVIN,
PARTICIPATION OF THE UNITED STATES OF AMERICA WITH THE REPUBLICS OF
LATIN AMERICA IN THE COMMON HERITAGE OF ROMAN AND CIVIL LAW, 10
PROCEEDINGS OF THE EIGHTH AMERICAN SCIENTIFIC CONGRESS 467. 

EVEN AMONG THE EARLY SEABOARD STATES, THE ENGLISH COMMON LAW HAD
RIVALS.  THE SWEDES ON THE BANKS OF THE DELAWARE HELD ONE OF THE
EARLIEST JURY TRIALS ON THIS CONTINENT.  THE GOVERNOR FOLLOWED SWEDISH
LAW AND CUSTOM IN CALLING TO HIS AID IN JUDGING "ASSISTANTS" WHO WERE
SELECTED FROM AMONG "THE PRINCIPAL AND WISEST INHABITANTS" AND WERE
BOTH JUDGES AND JURORS AND SOMETIMES WITNESSES.  SEE 1 JOHNSON, THE
SWEDISH SETTLEMENTS ON THE DELAWARE (1911) 450 ET SEQ. IN NEW YORK,
THERE WAS A DEEP AND PERSISTENT INFLUENCE FROM ROMAN DUTCH LAW.  UPON
CAPITULATION OF NEW AMSTERDAM, IT WAS STIPULATED THAT CERTAIN DUTCH
LAW, AND JUDGMENTS AND CUSTOMS SHOULD BE RESPECTED.  BUT EVEN BEYOND
THIS, IN THE ORGANIZATION OF THE COURTS THE DUTCH RULE PERSISTED
ALTHOUGH CONTRARY TO THE "DUKE'S LAWS" ENACTED BY THE CONQUEROR.  THE
HISTORY OF THE EARLY DUTCH INFLUENCE IN NEW YORK COURT PROCEDURE WAS
PRESERVED BY THE DILIGENCE AND FORESIGHT OF JUDGE DALY.  1 E. D.
SMITH'S REPORTS (NEW YORK COMMON PLEAS) XVII, XXXIV, XXXVII.  THE ROMAN
DUTCH ELEMENT IN NEW YORK LAW IS RECOGNIZED BY ITS COURTS, E.G., DUNHAM
V. WILLIAMS, 37 N.Y. 251, 253; VAN GIESSEN V. BRIDGFORD, 83 N.Y. 348,
356; SMITH V. RENTZ, 131 N.Y. 169, 175, 30 N.E. 54, 56. 

FN37  SEE 8 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 492. 

MR. JUSTICE MURPHY, DISSENTING. 

THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT PROHIBITS A
STATE FROM CONVICTING ANY PERSON BY USE OF A JURY WHICH IS NOT
IMPARTIALLY DRAWN FROM A CROSS-SECTION OF THE COMMUNITY.  THAT MEANS
THAT JURIES MUST BE CHOSEN WITHOUT SYSTEMATIC AND INTENTIONAL EXCLUSION
OF ANY OTHERWISE QUALIFIED GROUP OF INDIVIDUALS.  SMITH V. TEXAS, 311
U.S. 128.  ONLY IN THAT WAY CAN THE DEMOCRATIC TRADITIONS OF THE JURY
SYSTEM BE PRESERVED.  THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217, 220;
GLASSER V. UNITED STATES, 315 U.S. 60, 85.  IT IS BECAUSE I BELIEVE
THAT THIS CONSTITUTIONAL STANDARD OF JURY SELECTION HAS BEEN IGNORED IN
THE CREATION OF THE SO-CALLED "BLUE RIBBON" JURY PANEL IN THIS CASE
THAT I AM FORCED TO DISSENT. 

PRELIMINARILY, IT SHOULD BE NOTED THAT LEGISLATION BY CONGRESS
PROHIBITING THE PARTICULAR KIND OF INEQUALITY HERE INVOLVED IS
UNNECESSARY TO ENABLE US TO STRIKE IT DOWN UNDER THE CONSTITUTION. 
WHILE CONGRESS HAS THE POWER TO ENFORCE BY APPROPRIATE LEGISLATION THE
PROVISIONS OF THE FOURTEENTH AMENDMENT, AND HAS DONE SO RELATIVE TO
DISCRIMINATION IN JURY SELECTION ON THE BASIS OF RACE OR COLOR, ITS
FAILURE TO LEGISLATE AS TO ECONOMIC OR OTHER DISCRIMINATION IN JURY
SELECTION DOES NOT PERMIT US TO STAND IDLY BY.  WE HAVE CONSISTENTLY
INTERFERED WITH STATE PROCEDURE AND STATE LEGISLATION WHEN WE FELT THAT
THEY WERE INCONSISTENT WITH THE FOURTEENTH AMENDMENT OR WITH THE
FEDERAL COMMERCE POWER DESPITE CONGRESSIONAL SILENCE ON THE MATTER
INVOLVED.  SEE, E.G., WEST VIRGINIA STATE BOARD OF EDUCATION V.
BARNETTE, 319 U.S. 624; NIPPERT V. RICHMOND, 327 U.S. 416; MORGAN V.
VIRGINIA, 328 U.S. 373.  AND SO IN THIS CASE WE ARE ENTITLED TO JUDGE
THE ACTION OF NEW YORK BY CONSTITUTIONAL STANDARDS WITHOUT REGARD TO
THE ABSENCE OF RELEVANT FEDERAL LEGISLATION. 

THE CONSTITUTIONAL VICE INHERENT IN THE TYPE OF "BLUE RIBBON" JURY
PANEL HERE INVOLVED IS THAT IT RESTS UPON INTENTIONAL AND SYSTEMATIC
EXCLUSION OF CERTAIN CLASSES OF PEOPLE WHO ARE ADMITTEDLY QUALIFIED TO
SERVE ON THE GENERAL JURY PANEL.  WHATEVER MAY BE THE STANDARDS ERECTED
BY JURY OFFICIALS FOR DISTINGUISHING BETWEEN THOSE ELIGIBLE FOR SUCH A
"BLUE RIBBON" PANEL AND THOSE WHO ARE NOT, THE DISTINCTION ITSELF IS AN
INVALID ONE.  IT DENIES THE DEFENDANT HIS CONSTITUTIONAL RIGHT TO BE
TRIED BY A JURY FAIRLY DRAWN FROM A CROSS-SECTION OF THE COMMUNITY.  IT
FORCES UPON HIM A JURY DRAWN FROM A PANEL CHOSEN IN A MANNER WHICH
TENDS TO OBLITERATE THE REPRESENTATIVE BASIS OF THE JURY. 

THE SELECTION OF THE "BLUE RIBBON" PANEL IN THIS CASE RESTS UPON THE
"DEGREE OF INTELLIGENCE AS REVEALED BY THE QUESTIONNAIRE" SENT TO
PROSPECTIVE JURORS, AUGMENTED BY PERSONAL INTERVIEWS.  THE
QUESTIONNAIRE, HOWEVER, DOES NOT PURPORT TO BE A TEST OF NATIVE
INTELLIGENCE, NOR DOES IT APPEAR TO OFFER ANY SOUND BASIS FOR
DISTINGUISHING THE INTELLIGENCE OF ONE PERSON FROM ANOTHER.  THE
UNDENIABLE RESULT HAS BEEN TO PERMIT THE JURY OFFICIALS TO FORMULATE
WHATEVER STANDARDS THEY DESIRE, WHETHER IN TERMS OF "INTELLIGENCE" OR
SOME OTHER FACTOR, TO ELIMINATE PERSONS FROM THE "BLUE RIBBON" PANEL,
EVEN THOUGH THEY ADMITTEDLY ARE QUALIFIED FOR GENERAL JURY SERVICE. 
THAT FACT IS STRIKINGLY BORNE OUT BY THE STATISTICS COMPILED IN THIS
CASE AS TO THE PERSONNEL OF THE "BLUE RIBBON" PANEL.  CERTAIN CLASSES
OF INDIVIDUALS ARE TOTALLY UNREPRESENTED ON THE PANEL DESPITE THEIR
GENERAL QUALIFICATIONS AND DESPITE THE FACT THAT HIGH INTELLIGENCE IS
TO BE FOUND IN SUCH CLASSES. 

                                     PERCENTAGE OF
PERCENTAGE OF

     TOTAL EXPERIENCED    REPRESENTATION ON

                      LABOR FORCES IN       "BLUE RIBBON"

                                      MANHATTAN.   PANEL. 

PROFESSIONAL AND SEMI-PROFESSIONAL...      12.1              18.8 

PROPRIETORS, MANAGERS AND OFFICIALS...    9.3                 43 

CLERICAL, SALES AND KINDRED WORKERS...     21.3                 38 

CRAFTSMEN, FOREMEN AND KINDRED 

WORKERS...........................         7.7             0.2 

OPERATIVES AND KINDRED WORKERS..... 17                    0 

SERVICE WORKERS....................        27.6                  0 

LABORERS ..........................         4.9                  0 

FARMERS ...........................         0.1                  0
SUCH STATISTICS CAN ONLY MEAN THAT THE JURY OFFICIALS HAVE EVOLVED SOME
STANDARD OTHER THAN THAT OF "INTELLIGENCE" TO EXCLUDE CERTAIN PERSONS
FROM THE "BLUE RIBBON" PANEL.  AND THAT STANDARD IS APPARENTLY OF AN
ECONOMIC OR SOCIAL NATURE, UNJUSTIFIED BY THE DEMOCRATIC PRINCIPLES OF
THE JURY SYSTEM.    THE COURT POINTS OUT SOME OF THE DIFFICULTIES
INVOLVED IN COMPARING THE PERSONNEL OF THE PANEL WITH 1940 CENSUS
FIGURES.  BUT WE ARE DEALING HERE WITH A VERY SUBTLE AND SOPHISTICATED
FORM OF DISCRIMINATION WHICH DOES NOT LEND ITSELF TO EASY OR PRECISE
PROOF.  THE PROOF HERE IS ADEQUATE ENOUGH TO DEMONSTRATE THAT THIS
PANEL, LIKE EVERY DISCRIMINATORILY SELECTED "BLUE RIBBON" PANEL,
SUFFERS FROM A CONSTITUTIONAL INFIRMITY.  THAT INFIRMITY IS THE DENIAL
OF EQUAL PROTECTION TO THOSE WHO ARE TRIED BY A JURY DRAWN FROM A "BLUE
RIBBON" PANEL.  SUCH A PANEL IS NARROWER AND DIFFERENT FROM THAT USED
IN FORMING JURIES TO TRY THE VAST MAJORITY OF OTHER ACCUSED PERSONS. 
TO THE EXTENT OF THAT DIFFERENCE, THEREFORE, THE PERSONS TRIED BY "BLUE
RIBBON" JURIES RECEIVE UNEQUAL PROTECTION. 

IN ADDITION, AS ILLUSTRATED IN THIS CASE, THE DISTINCTION THAT IS
DRAWN IN FACT BETWEEN "BLUE RIBBON" JURORS AND GENERAL JURORS IS OFTEN
OF SUCH A CHARACTER AS TO DESTROY THE REPRESENTATIVE NATURE OF THE
"BLUE RIBBON" PANEL.  THERE IS NO CONSTITUTIONAL RIGHT TO A JURY DRAWN
FROM A GROUP OF UNEDUCATED AND UNINTELLIGENT PERSONS.  NOR IS THERE ANY
RIGHT TO A JURY CHOSEN SOLELY FROM THOSE AT THE LOWER END OF THE
ECONOMIC AND SOCIAL SCALE.  BUT THERE IS A CONSTITUTIONAL RIGHT TO A
JURY DRAWN FROM A GROUP WHICH REPRESENTS A CROSS-SECTION OF THE
COMMUNITY.  AND A CROSS-SECTION OF THE COMMUNITY INCLUDES PERSONS WITH
VARYING DEGREES OF TRAINING AND INTELLIGENCE AND WITH VARYING ECONOMIC
AND SOCIAL POSITIONS.  UNDER OUR CONSTITUTION, THE JURY IS NOT TO BE
MADE THE REPRESENTATIVE OF THE MOST INTELLIGENT, THE MOST WEALTHY OR
THE MOST SUCCESSFUL, NOR OF THE LEAST INTELLIGENT, THE LEAST WEALTHY OR
THE LEAST SUCCESSFUL.  IT IS A DEMOCRATIC INSTITUTION, REPRESENTATIVE
OF ALL QUALIFIED CLASSES OF PEOPLE.  SMITH V. TEXAS, SUPRA.  TO THE
EXTENT THAT A "BLUE RIBBON" PANEL FAILS TO REFLECT THIS DEMOCRATIC
PRINCIPLE, IT IS CONSTITUTIONALLY DEFECTIVE. 

THE COURT DEMONSTRATES RATHER CONVINCINGLY THAT IT IS DIFFICULT TO
PROVE THAT THE PARTICULAR PETITIONERS WERE PREJUDICED BY THE
DISCRIMINATION PRACTICED IN THIS CASE.  YET THAT SHOULD NOT EXCUSE THE
FAILURE TO COMPLY WITH THE CONSTITUTIONAL STANDARD OF JURY SELECTION. 
WE CAN NEVER MEASURE ACCURATELY THE PREJUDICE THAT RESULTS FROM THE
EXCLUSION OF CERTAIN TYPES OF QUALIFIED PEOPLE FROM A JURY PANEL.  SUCH
PREJUDICE IS SO SUBTLE, SO INTANGIBLE, THAT IT ESCAPES THE ORDINARY
METHODS OF PROOF.  IT MAY BE ABSENT IN ONE CASE AND PRESENT IN ANOTHER;
IT MAY GRADUALLY AND SILENTLY ERODE THE JURY SYSTEM BEFORE IT BECOMES
EVIDENT.  BUT IT IS NO LESS REAL OR MEANINGFUL FOR OUR PURPOSES.  IF
THE CONSTITUTIONAL RIGHT TO A JURY IMPARTIALLY DRAWN FROM A CROSS
RIGHT EVEN THOUGH THE EFFECT OF THE VIOLATION HAS NOT YET PUT IN A
TANGIBLE APPEARANCE.  OTHERWISE THAT RIGHT MAY BE IRRETRIEVABLY LOST IN
A WELTER OF EVIDENTIARY RULES. 

SINCE THIS "BLUE RIBBON" PANEL FALLS SHORT OF THE CONSTITUTIONAL
STANDARD OF JURY SELECTION, THE JUDGMENTS BELOW SHOULD BE REVERSED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN
IN THIS DISSENT. 
..END :















UNITED STATES V. STANDARD OIL CO., 332 U.S. 301 


NO. 235.  ARGUED APRIL 8-9, 1947.  - DECIDED JUNE 23, 1947.  - 153 F.2D
958, AFFIRMED. 


A SOLDIER IN THE ARMY OF THE UNITED STATES WAS INJURED BY A MOTOR
TRUCK, THROUGH NEGLIGENCE OF THE DRIVER.  THE EXPENSES OF HIS
HOSPITALIZATION WERE BORNE BY THE UNITED STATES; AND HE CONTINUED TO
RECEIVE HIS ARMY PAY DURING THE PERIOD OF HIS DISABILITY.  THE UNITED
STATES BROUGHT SUIT IN A FEDERAL DISTRICT COURT AGAINST THE OWNER AND
DRIVER OF THE TRUCK AS TORT-FEASORS TO RECOVER THE AMOUNTS EXPENDED FOR
HOSPITALIZATION AND SOLDIER'S PAY DURING THE PERIOD OF DISABILITY, AS
FOR LOSS OF THE SOLDIER'S SERVICES.  HELD: 

1.  THE DECISION IS GOVERNED NOT BY THE LAW OF THE STATE WHERE THE
INJURY OCCURRED BUT BY FEDERAL LAW, EVEN THOUGH CONGRESS HAS NOT ACTED
AFFIRMATIVELY CONCERNING THE SPECIFIC QUESTION.  ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, DISTINGUISHED.  PP. 305-311. 

2.  IN THE ABSENCE OF LEGISLATION BY CONGRESS ON THE SUBJECT, THE
UNITED STATES WAS NOT ENTITLED TO RECOVER ON THE CLAIM.  PP. 311-317. 

3.  IT IS FOR CONGRESS, NOT THE JUDICIARY, TO MAKE NEW LAWS
CONCERNING THE RIGHT OF THE GOVERNMENT TO RECOVER FOR THE LOSS OF A
SOLDIER'S SERVICES.  PP. 314-317. 

UNITED STATES V. STANDARD OIL COMPANY OF CALIFORNIA ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

THE UNITED STATES BROUGHT SUIT IN THE DISTRICT COURT TO RECOVER ON A
CLAIM ARISING OUT OF INJURIES SUSTAINED BY A SOLDIER AS A RESULT OF
NEGLIGENCE OF THE DEFENDANTS.  THE DISTRICT COURT GAVE JUDGMENT FOR THE
UNITED STATES.  60 F.SUPP.  807.  THE CIRCUIT COURT OF APPEALS
REVERSED.  153 F.2D 958.  THIS COURT GRANTED CERTIORARI.  329 U.S.
696.  AFFIRMED, P. 317. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

NOT OFTEN, SINCE THE DECISION IN ERIE R. CO. V. TOMPKINS, 304 U.S.
64, IS THIS COURT ASKED TO CREATE A NEW SUBSTANTIVE LEGAL LIABILITY
WITHOUT LEGISLATIVE AID AND AS AT THE COMMON LAW.  THIS CASE OF FIRST
IMPRESSION HERE SEEKS SUCH A RESULT.  IT ARISES FROM THE FOLLOWING
CIRCUMSTANCES. 

EARLY ONE MORNING IN FEBRUARY, 1944, JOHN ETZEL, A SOLDIER, WAS HIT
AND INJURED BY A TRUCK OF THE STANDARD OIL COMPANY OF CALIFORNIA AT A
STREET INTERSECTION IN LOS ANGELES.  THE VEHICLE WAS DRIVEN BY BOONE,
AN EMPLOYEE OF THE COMPANY.  AT THE GOVERNMENT'S EXPENSE OF $123.45
ETZEL WAS HOSPITALIZED, AND HIS SOLDIER'S PAY OF $69.31 WAS CONTINUED
DURING HIS DISABILITY.  UPON THE PAYMENT OF $300 ETZEL RELEASED THE
COMPANY AND BOONE "FROM ANY AND ALL CLAIMS AND DEMANDS WHICH I NOW HAVE
OR MAY HEREAFTER HAVE, ON ACCOUNT OF OR ARISING OUT OF" THE ACCIDENT. 
FN1 

FROM THESE FACTS THE NOVEL QUESTION SPRINGS WHETHER THE GOVERNMENT IS
ENTITLED TO RECOVER FROM THE RESPONDENTS AS TORT-FEASORS THE AMOUNTS
EXPENDED FOR HOSPITALIZATION AND SOLDIER'S PAY, AS FOR LOSS OF ETZEL'S
SERVICES.  A JURY BEING WAIVED, THE DISTRICT COURT MADE FINDINGS OF
FACT AND CONCLUSIONS OF LAW IN THE GOVERNMENT'S FAVOR UPON ALL THE
ISSUES, INCLUDING THOSE OF NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE. 
JUDGMENT WAS RENDERED ACCORDINGLY.  60 F.SUPP.  807.  THIS THE CIRCUIT
COURT OF APPEALS REVERSED, 153 F.2D 958, AND WE GRANTED CERTIORARI
BECAUSE OF THE NOVELTY AND IMPORTANCE OF THE PRINCIPAL QUESTION.  FN2
329 U.S. 696. 

AS THE CASE REACHES US, A NUMBER OF ISSUES CONTESTED IN THE DISTRICT
COURT AND THE CIRCUIT COURT OF APPEALS HAVE BEEN ELIMINATED.  FN3
REMAINING IS THE BASIC QUESTION OF RESPONDENTS' LIABILITY FOR
INTERFERENCE WITH THE GOVERNMENT-SOLDIER RELATION AND CONSEQUENT LOSS
TO THE UNITED STATES, TOGETHER WITH QUESTIONS WHETHER THIS ISSUE IS TO
BE DETERMINED BY FEDERAL OR STATE LAW  FN4  AND CONCERNING THE EFFECT
OF THE RELEASE.  FN5  IN THE VIEW WE TAKE OF THE CASE IT IS NOT
NECESSARY TO CONSIDER THE QUESTIONS RELATING TO THE RELEASE,  FN6  FOR
WE HAVE REACHED THE CONCLUSION THAT RESPONDENTS ARE NOT LIABLE FOR THE
INJURIES INFLICTED UPON THE GOVERNMENT. 

WE AGREE WITH THE GOVERNMENT'S VIEW THAT THE CREATION OR NEGATION OF
SUCH A LIABILITY IS NOT A MATTER TO BE DETERMINED BY STATE LAW.  THE
CASE IN THIS ASPECT IS GOVERNED BY THE RULE OF CLEARFIELD TRUST CO. V.
UNITED STATES, 318 U.S. 363, AND NATIONAL METROPOLITAN BANK V. UNITED
STATES, 323 U.S. 454, RATHER THAN THAT OF ERIE R. CO. V. TOMPKINS,
SUPRA.  IN THE CLEARFIELD CASE, INVOLVING LIABILITIES ARISING OUT OF A
FORGED INDORSEMENT OF A CHECK ISSUED BY THE UNITED STATES, THE COURT
SAID:  "THE AUTHORITY TO ISSUE THE CHECK HAD ITS ORIGIN IN THE
CONSTITUTION AND THE STATUTES OF THE UNITED STATES AND WAS IN NO WAY
DEPENDENT ON THE LAWS OF PENNSYLVANIA OR OF ANY OTHER STATE.  CF. BOARD
OF COMMISSIONERS V. UNITED STATES, 308 U.S. 343; ROYAL INDEMNITY CO. V.
UNITED STATES, 313 U.S. 289.  THE DUTIES IMPOSED UPON THE UNITED STATES
AND THE RIGHTS ACQUIRED BY IT AS A RESULT OF THE ISSUANCE FIND THEIR
ROOTS IN THE SAME FEDERAL SOURCES.  CF. DEITRICK V. GREANEY, 309 U.S.
190; D'OENCH, DUHME & CO. V. FEDERAL DEPOSIT INS. CORP., 315 U.S. 447. 
IN THE ABSENCE OF AN APPLICABLE ACT OF CONGRESS IT IS FOR THE FEDERAL
COURTS TO FASHION THE GOVERNING RULE OF LAW ACCORDING TO THEIR OWN
STANDARDS."  318 U.S. AT 366-367. 

ALTHOUGH THE CLEARFIELD CASE APPLIED THESE PRINCIPLES TO A SITUATION
INVOLVING CONTRACTUAL RELATIONS OF THE GOVERNMENT, THEY ARE EQUALLY
APPLICABLE IN THE FACTS OF THIS CASE WHERE THE RELATIONS AFFECTED ARE
NONCONTRACTUAL OR TORTIOUS IN CHARACTER. 

PERHAPS NO RELATION BETWEEN THE GOVERNMENT AND A CITIZEN IS MORE
DISTINCTIVELY FEDERAL IN CHARACTER THAN THAT BETWEEN IT AND MEMBERS OF
ITS ARMED FORCES.  TO WHATEVER EXTENT STATE LAW MAY APPLY TO GOVERN THE
RELATIONS BETWEEN SOLDIERS OR OTHERS IN THE ARMED FORCES AND PERSONS
OUTSIDE THEM OR NONFEDERAL GOVERNMENTAL AGENCIES, THE SCOPE, NATURE,
LEGAL INCIDENTS AND CONSEQUENCES OF THE RELATION BETWEEN PERSONS IN
SERVICE AND THE GOVERNMENT ARE FUNDAMENTALLY DERIVED FROM FEDERAL
SOURCES AND GOVERNED BY FEDERAL AUTHORITY.  SEE TARBLE'S CASE, 13
WALL.  397; KURTZ V. MOFFITT, 115 U.S. 487.  SO ALSO WE THINK ARE
INTERFERENCES WITH THAT RELATIONSHIP SUCH AS THE FACTS OF THIS CASE
INVOLVE.  FOR, AS THE FEDERAL GOVERNMENT HAS THE EXCLUSIVE POWER TO
ESTABLISH AND DEFINE THE RELATIONSHIP BY VIRTUE OF ITS MILITARY AND
OTHER POWERS,  FN7  EQUALLY CLEARLY IT HAS POWER IN EXECUTION OF THE
SAME FUNCTIONS TO PROTECT THE RELATION ONCE FORMED FROM HARMS INFLICTED
BY OTHERS.  FN8 

SINCE ALSO THE GOVERNMENT'S PURSE IS AFFECTED, AS WELL AS ITS POWER
TO PROTECT THE RELATIONSHIP, ITS FISCAL POWERS, TO THE EXTENT THAT THEY
ARE AVAILABLE TO PROTECT IT AGAINST FINANCIAL INJURY, ADD THEIR WEIGHT
TO THE MILITARY BASIS FOR EXCLUDING STATE INTRUSION.  INDEED, IN THIS
ASPECT THE CASE IS NOT GREATLY DIFFERENT FROM THE CLEARFIELD CASE OR
FROM ONE INVOLVING THE GOVERNMENT'S PARAMOUNT POWER OF CONTROL OVER ITS
OWN PROPERTY, BOTH TO PREVENT ITS UNAUTHORIZED USE OR DESTRUCTION AND
TO SECURE INDEMNITY FOR THOSE INJURIES.  FN9 

AS IN THE CLEARFIELD CASE, MOREOVER, QUITE APART FROM ANY POSITIVE
ACTION BY CONGRESS, THE MATTER IN ISSUE IS NEITHER PRIMARILY ONE OF
STATE INTEREST NOR EXCLUSIVELY FOR DETERMINATION BY STATE LAW WITHIN
THE SPIRIT AND PURPOSE OF THE ERIE DECISION.  THE GREAT OBJECT OF THE
ERIE CASE WAS TO SECURE IN THE FEDERAL COURTS, IN DIVERSITY CASES, THE
APPLICATION OF THE SAME SUBSTANTIVE LAW AS WOULD CONTROL IF THE SUIT
WERE BROUGHT IN THE COURTS OF THE STATE WHERE THE FEDERAL COURT SITS. 
IT WAS THE SO-CALLED "FEDERAL COMMON LAW" UTILIZED AS A SUBSTITUTE FOR
STATE POWER, TO CREATE AND ENFORCE LEGAL RELATIONSHIPS IN THE AREA SET
APART IN OUR SCHEME FOR STATE RATHER THAN FOR FEDERAL CONTROL, THAT THE
ERIE DECISION THREW OUT.  ITS OBJECT AND EFFECT WERE THUS TO BRING
FEDERAL JUDICIAL POWER UNDER SUBJECTION TO STATE AUTHORITY IN MATTERS
ESSENTIALLY OF LOCAL INTEREST AND STATE CONTROL. 

CONVERSELY THERE WAS NO PURPOSE OR EFFECT FOR BROADENING STATE POWER
OVER MATTERS ESSENTIALLY OF FEDERAL CHARACTER OR FOR DETERMINING
WHETHER ISSUES ARE OF THAT NATURE.  THE DIVERSITY JURISDICTION HAD NOT
CREATED SPECIAL PROBLEMS OF THAT SORT.  ACCORDINGLY THE ERIE DECISION,
WHICH RELATED ONLY TO THE LAW TO BE APPLIED IN EXERCISE OF THAT
JURISDICTION, HAD NO EFFECT, AND WAS INTENDED TO HAVE NONE, TO BRING
WITHIN THE GOVERNANCE OF STATE LAW MATTERS EXCLUSIVELY FEDERAL, BECAUSE
MADE SO BY CONSTITUTIONAL OR VALID CONGRESSIONAL COMMAND, OR OTHERS SO
VITALLY AFFECTING INTERESTS, POWERS AND RELATIONS OF THE FEDERAL
GOVERNMENT AS TO REQUIRE UNIFORM NATIONAL DISPOSITION RATHER THAN
DIVERSIFIED STATE RULINGS.  CF. CLEARFIELD TRUST CO. V. UNITED STATES,
318 U.S. AT 366-368.  HENCE, ALTHOUGH FEDERAL JUDICIAL POWER TO DEAL
WITH COMMON-LAW PROBLEMS WAS CUT DOWN IN THE REALM OF LIABILITY OR ITS
ABSENCE GOVERNABLE BY STATE LAW, THAT POWER REMAINED UNIMPAIRED FOR
DEALING INDEPENDENTLY, WHEREVER NECESSARY OR APPROPRIATE, WITH
ESSENTIALLY FEDERAL MATTERS, EVEN THOUGH CONGRESS HAS NOT ACTED
AFFIRMATIVELY ABOUT THE SPECIFIC QUESTION. 

IN THIS SENSE THEREFORE THERE REMAINS WHAT MAY BE TERMED, FOR WANT OF
A BETTER LABEL, AN AREA OF "FEDERAL COMMON LAW" OR PERHAPS MORE
ACCURATELY "LAW OF INDEPENDENT FEDERAL JUDICIAL DECISION," OUTSIDE THE
CONSTITUTIONAL REALM, UNTOUCHED BY THE ERIE DECISION.  AS THE
GOVERNMENT POINTS OUT, THIS HAS BEEN DEMONSTRATED BROADLY NOT ONLY BY
THE CLEARFIELD AND NATIONAL METROPOLITAN BANK CASES, BUT ALSO BY OTHER
DECISIONS RENDERED HERE SINCE THE ERIE CASE WENT DOWN,  FN10  WHETHER
OR NOT THE GOVERNMENT IS ALSO CORRECT IN SAYING THE FACT WAS
FORESHADOWED THE SAME DAY BY HINDERLIDER V. LA PLATA CO., 304 U.S. 92,
110, IN A UNANIMOUS OPINION DELIVERED LIKEWISE BY MR. JUSTICE
BRANDEIS.  FN11 

IT IS TRUE, OF COURSE, THAT IN MANY SITUATIONS, AND APART FROM ANY
SUPPOSED INFLUENCE OF THE ERIE DECISION, RIGHTS, INTERESTS AND LEGAL
RELATIONS OF THE UNITED STATES ARE DETERMINED BY APPLICATION OF STATE
LAW, WHERE CONGRESS HAS NOT ACTED SPECIFICALLY.  "IN OUR CHOICE OF THE
APPLICABLE FEDERAL RULE WE HAVE OCCASIONALLY SELECTED STATE LAW." 
CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. AT 367.  THE
GOVERNMENT, FOR INSTANCE, MAY PLACE ITSELF IN A POSITION WHERE ITS
RIGHTS NECESSARILY ARE DETERMINABLE BY STATE LAW, AS WHEN IT PURCHASES
REAL ESTATE FROM ONE WHOSE TITLE IS INVALID BY THAT LAW IN RELATION TO
ANOTHER'S CLAIM.  CF. UNITED STATES V. FOX, 94 U.S. 315.  FN12  IN
OTHER SITUATIONS IT MAY FAIRLY BE TAKEN THAT CONGRESS HAS CONSENTED TO
APPLICATION OF STATE LAW, WHEN ACTING PARTIALLY IN RELATION TO FEDERAL
INTERESTS AND FUNCTIONS, THROUGH FAILURE TO MAKE OTHER PROVISION
CONCERNING MATTERS ORDINARILY SO GOVERNED.  FN13  AND IN STILL OTHERS
STATE LAW MAY FURNISH CONVENIENT SOLUTIONS IN NO WAY INCONSISTENT WITH
ADEQUATE PROTECTION OF THE FEDERAL INTEREST. 

BUT WE DO NOT UNDERTAKE TO DELIMIT OR CATEGORIZE THE INSTANCES WHERE
IT IS PROPERLY TO BE APPLIED OUTSIDE THE ERIE AEGIS.  IT IS ENOUGH FOR
PRESENT PURPOSES TO POINT OUT THAT THEY EXIST, COVER A VARIETY OF
SITUATIONS, AND GENERALLY INVOLVE MATTERS IN WHICH APPLICATION OF LOCAL
LAW NOT ONLY AFFORDS A CONVENIENT AND FAIR MODE OF DISPOSITION, BUT
ALSO IS EITHER INESCAPABLE, AS IN THE ILLUSTRATION GIVEN ABOVE, OR DOES
NOT RESULT IN SUBSTANTIALLY DIVERSIFIED TREATMENT WHERE UNIFORMITY IS
INDICATED AS MORE APPROPRIATE, IN VIEW OF THE NATURE OF THE SUBJECT
MATTER AND THE SPECIFIC ISSUES AFFECTING THE GOVERNMENT'S INTEREST. 

WHETHER OR NOT, THEREFORE, STATE LAW IS TO CONTROL IN SUCH A CASE AS
THIS IS NOT AT ALL A MATTER TO BE DECIDED BY APPLICATION OF THE ERIE
RULE.  FOR, EXCEPT WHERE THE GOVERNMENT HAS SIMPLY SUBSTITUTED ITSELF
FOR OTHERS AS SUCCESSOR TO RIGHTS GOVERNED BY STATE LAW, THE QUESTION
IS ONE OF FEDERAL POLICY, AFFECTING NOT MERELY THE FEDERAL JUDICIAL
ESTABLISHMENT AND THE GROUNDINGS OF ITS ACTION, BUT ALSO THE
GOVERNMENT'S LEGAL INTERESTS AND RELATIONS, A FACTOR NOT CONTROLLING IN
THE TYPES OF CASES PRODUCING AND GOVERNED BY THE ERIE RULING.  AND THE
ANSWER TO BE GIVEN NECESSARILY IS DEPENDENT UPON A VARIETY OF
CONSIDERATIONS ALWAYS RELEVANT TO THE NATURE OF THE SPECIFIC
GOVERNMENTAL INTERESTS AND TO THE EFFECTS UPON THEM OF APPLYING STATE
LAW.  THESE INCLUDE NOT ONLY CONSIDERATIONS OF FEDERAL SUPREMACY IN THE
PERFORMANCE OF FEDERAL FUNCTIONS, BUT OF THE NEED FOR UNIFORMITY AND,
IN SOME INSTANCES, INFERENCES PROPERLY TO BE DRAWN FROM THE FACT THAT
CONGRESS, THOUGH COGNIZANT OF THE PARTICULAR PROBLEM, HAS TAKEN NO
ACTION TO CHANGE LONG-SETTLED WAYS OF HANDLING IT. 

LEAVING OUT OF ACCOUNT, THEREFORE, ANY SUPPOSED EFFECT OF THE ERIE
DECISION, WE NEVERTHELESS ARE OF OPINION THAT STATE LAW SHOULD NOT BE
SELECTED AS THE FEDERAL RULE FOR GOVERNING THE MATTER IN ISSUE.  NOT
ONLY IS THE GOVERNMENT-SOLDIER RELATION DISTINCTIVELY AND EXCLUSIVELY A
CREATION OF FEDERAL LAW, BUT WE KNOW OF NO GOOD REASON WHY THE
GOVERNMENT'S RIGHT TO BE INDEMNIFIED IN THESE CIRCUMSTANCES, OR THE
LACK OF SUCH A RIGHT, SHOULD VARY IN ACCORDANCE WITH THE DIFFERENT
RULINGS OF SEVERAL STATES, SIMPLY BECAUSE THE SOLDIER MARCHES OR TODAY
PERHAPS AS OFTEN FLIES ACROSS STATE LINES. 

FURTHERMORE, THE LIABILITY SOUGHT IS NOT ESSENTIAL OR EVEN RELEVANT
TO PROTECTION OF THE STATE'S CITIZENS AGAINST TORTIOUS HARMS, NOR
INDEED FOR THE SOLDIER'S PERSONAL INDEMNITY OR SECURITY, EXCEPT IN THE
REMOTEST SENSE,  FN14  SINCE HIS PERSONAL RIGHTS AGAINST THE WRONGDOER
MAY BE FULLY PROTECTED WITHOUT REFERENCE TO ANY INDEMNITY FOR THE
GOVERNMENT'S LOSS.  FN15  IT IS RATHER A LIABILITY THE PRINCIPAL, IF
NOT THE ONLY, EFFECT OF WHICH WOULD BE TO MAKE WHOLE THE FEDERAL
TREASURY FOR FINANCIAL LOSSES SUSTAINED, FLOWING FROM THE INJURIES
INFLICTED AND THE GOVERNMENT'S OBLIGATIONS TO THE SOLDIER.  THE
QUESTION, THEREFORE, IS CHIEFLY ONE OF FEDERAL FISCAL POLICY, NOT OF
SPECIAL OR PECULIAR CONCERN TO THE STATES OR THEIR CITIZENS.  AND
BECAUSE THOSE MATTERS ORDINARILY ARE APPROPRIATE FOR UNIFORM NATIONAL
TREATMENT RATHER THAN DIVERSIFIED LOCAL DISPOSITION, AS WELL WHERE
CONGRESS HAS NOT ACTED AFFIRMATIVELY AS WHERE IT HAS, THEY ARE MORE
FITTINGLY DETERMINABLE BY INDEPENDENT FEDERAL JUDICIAL DECISION THAN BY
REFERENCE TO VARYING STATE POLICIES. 

WE TURN, FINALLY, TO CONSIDERATION OF THE POLICY PROPERLY TO BE
APPLIED CONCERNING THE WRONGDOER, WHETHER OF LIABILITY OR OF CONTINUED
IMMUNITY AS IN THE PAST.  HERE THE GOVERNMENT PUTS FORWARD INTERESTING
VIEWS TO SUPPORT ITS CLAIM OF RESPONSIBILITY.  IT APPEALS FIRST TO THE
GREAT PRINCIPLE THAT THE LAW CAN NEVER BE WHOLLY STATIC.  GROWTH, IT
URGES, IS THE LIFE OF THE LAW AS IT IS OF ALL LIVING THINGS.  AND IN
THIS EXPANSIVE AND CREATIVE LIVING PROCESS, WE ARE FURTHER REMINDED,
THE JUDICIAL INSTITUTION HAS HAD AND MUST CONTINUE TO HAVE A LARGE AND
PLIANT, IF ALSO A RESTRAINED AND STEADY, HAND.  MOREOVER, THE SPECIAL
PROBLEM HERE HAS ROOTS IN THE ANCIENT SOIL OF TORT LAW, WHEREIN THE
CHIEF PLOWMAN HAS BEEN THE JUDGE, NOTWITHSTANDING HIS FURROW MAY BE
COVERED UP OR WIDENED BY LEGISLATION.    BRINGING THE ARGUMENT DOWN TO
SPECIAL POINT, COUNSEL HAS FAVORED US WITH SCHOLARLY DISCUSSION OF THE
ORIGINS AND FOUNDATIONS OF LIABILITIES CONSIDERED ANALOGOUS AND OF
THEIR LATER EXPANSION TO INCLUDE RELATIONS NOT ORIGINALLY
COMPREHENDED.  THESE EMBRACE PARTICULARLY THE LIABILITIES CREATED BY
THE COMMON LAW, ARISING FROM TORTIOUS INJURIES INFLICTED UPON PERSONS
STANDING IN VARIOUS SPECIAL LEGAL RELATIONSHIPS, AND CAUSING HARM NOT
ONLY TO THE INJURED PERSON BUT ALSO, AS FOR LOSS OF SERVICES AND
ASSIMILATED INJURIES, TO THE PERSON TO WHOM HE IS BOUND BY THE
RELATION'S TIE.  SUCH, FOR OBVIOUS EXAMPLES, ARE THE MASTER'S RIGHTS OF
RECOVERY FOR LOSS OF THE SERVICES OF HIS SERVANT OR APPRENTICE; FN16
THE HUSBAND'S SIMILAR ACTION FOR INTERFERENCE WITH THE MARITAL
RELATION, INCLUDING LOSS OF CONSORTIUM AS WELL AS THE WIFE'S SERVICES;
AND THE PARENT'S RIGHT TO INDEMNITY FOR LOSS OF A CHILD'S SERVICES,
INCLUDING HIS ACTION FOR A DAUGHTER'S SEDUCTION.  FN17 

STARTING WITH THESE LONG-ESTABLISHED INSTANCES, ILLUSTRATING THE
CREATIVE POWERS AND FUNCTIONS OF COURTS, THE ARGUMENT LEADS ON IN AN
EFFORT TO SHOW THAT THE GOVERNMENT-SOLDIER RELATION IS, IF NOT
IDENTICAL, STILL STRONGLY ANALOGOUS; FN18  THAT THE ANALOGIES ARE NOT
DESTROYED BY ANY OF THE VARIATIONS, SOME HIGHLY ANOMALOUS,  FN19
CHARACTERIZING ONE OR MORE OF THE SETTLED TYPES OF LIABILITY; AND THAT
AN EXERTION OF CREATIVE JUDICIAL POWER TO BRING THE GOVERNMENT-SOLDIER
RELATION UNDER THE SAME LEGAL PROTECTION AGAINST TORTIOUS INTERFERENCES
BY STRANGERS WOULD BE ONLY A FURTHER AND A PROPER EXEMPLIFICATION OF
THE LAW'S CAPACITY TO CATCH UP WITH THE TIMES.  FURTHER ELABORATION OF
THE ARGUMENT'S DETAILS WOULD BE INTERESTING, FOR THE LAW HAS NO MORE
ATTRACTIVE SCENE OF ACTION THAN IN THE BROAD FIELD COMPENDIOUSLY
LABELED THE LAW OF TORTS, AND WITHIN IT PERHAPS NONE MORE ENGROSSING
THAN THOSE AREAS DEALING WITH THESE ESSENTIALLY HUMAN AND HIGHLY
PERSONAL RELATIONS. 

BUT WE FOREGO THE TENDERED OPPORTUNITY.  FOR WE THINK THE ARGUMENT
IGNORES FACTORS OF CONTROLLING IMPORTANCE DISTINGUISHING THE PRESENT
PROBLEM FROM THOSE WITH WHICH THE GOVERNMENT SEEKS TO BRING IT INTO
COMPANIONATE DISPOSITION.  THESE ARE CENTERED IN THE VERY FACT THAT IT
IS THE GOVERNMENT'S INTERESTS AND RELATIONS THAT ARE INVOLVED, RATHER
THAN THE HIGHLY PERSONAL RELATIONS OUT OF WHICH THE ASSERTEDLY
COMPARABLE LIABILITIES AROSE; AND IN THE NARROWER SCOPE, AS COMPARED
WITH THAT ALLOWED COURTS OF GENERAL COMMON-LAW JURISDICTION, FOR THE
ACTION OF FEDERAL COURTS IN SUCH MATTERS. 

WE WOULD NOT DENY THE GOVERNMENT'S BASIC PREMISE OF THE LAW'S
CAPACITY FOR GROWTH, OR THAT IT MUST INCLUDE THE CREATIVE WORK OF
JUDGES.  SOON ALL LAW WOULD BECOME ANTIQUATED STRAIT JACKET AND THEN
DEAD LETTER, IF THAT POWER WERE LACKING.  AND THE JUDICIAL HAND WOULD
STIFFEN IN MORTMAIN IF IT HAD NO PART IN THE WORK OF CREATION.  BUT IN
THE FEDERAL SCHEME OUR PART IN THAT WORK, AND THE PART OF THE OTHER
FEDERAL COURTS, OUTSIDE THE CONSTITUTIONAL AREA IS MORE MODEST THAN
THAT OF STATE COURTS, PARTICULARLY IN THE FREEDOM TO CREATE NEW COMMON
LAW LIABILITIES, AS ERIE R. CO. V. TOMPKINS ITSELF WITNESSES.  SEE ALSO
UNITED STATES V. HUDSON, 7 CRANCH 32. 

MOREOVER, AS THE GOVERNMENT RECOGNIZES FOR ONE PHASE OF THE ARGUMENT
BUT IGNORES FOR THE OTHER, FN20  WE HAVE NOT HERE SIMPLY A QUESTION OF
CREATING A NEW LIABILITY IN THE NATURE OF A TORT.  FN21  FOR GROUNDED
THOUGH THE ARGUMENT IS IN ANALOGIES DRAWN FROM THAT FIELD, THE ISSUE
COMES DOWN IN FINAL CONSEQUENCE TO A QUESTION OF FEDERAL FISCAL POLICY,
COUPLED WITH CONSIDERATIONS CONCERNING THE NEED FOR AND THE
APPROPRIATENESS OF MEANS TO BE USED IN EXECUTING THE POLICY SOUGHT TO
BE ESTABLISHED.  THE TORT LAW ANALOGY IS BROUGHT FORTH, INDEED, NOT TO
SECURE A NEW STEP FORWARD IN EXPANDING THE RECOGNIZED AREA FOR APPLYING
SETTLED PRINCIPLES OF THAT LAW AS SUCH, OR FOR CREATING NEW ONES.  IT
IS ADVANCED RATHER AS THE INSTRUMENT FOR DETERMINING AND ESTABLISHING
THE FEDERAL FISCAL AND REGULATORY POLICIES WHICH THE GOVERNMENT'S
EXECUTIVE ARM THINKS SHOULD PREVAIL IN A SITUATION NOT COVERED BY
TRADITIONALLY ESTABLISHED LIABILITIES. 

WHATEVER THE MERITS OF THE POLICY, ITS CONVERSION INTO LAW IS A
PROPER SUBJECT FOR CONGRESSIONAL ACTION, NOT FOR ANY CREATIVE POWER OF
OURS.  CONGRESS, NOT THIS COURT OR THE OTHER FEDERAL COURTS, IS THE
CUSTODIAN OF THE NATIONAL PURSE.  BY THE SAME TOKEN IT IS THE PRIMARY
AND MOST OFTEN THE EXCLUSIVE ARBITER OF FEDERAL FISCAL AFFAIRS.  AND
THESE COMPREHEND, AS WE HAVE SAID, SECURING THE TREASURY OR THE
GOVERNMENT AGAINST FINANCIAL LOSSES HOWEVER INFLICTED, INCLUDING
REQUIRING REIMBURSEMENT FOR INJURIES CREATING THEM, AS WELL AS FILLING
THE TREASURY ITSELF. 

MOREOVER CONGRESS WITHOUT DOUBT HAS BEEN CONSCIOUS THROUGHOUT MOST OF
ITS HISTORY THAT THE GOVERNMENT CONSTANTLY SUSTAINS LOSSES THROUGH THE
TORTIOUS OR EVEN CRIMINAL CONDUCT OF PERSONS INTERFERING WITH FEDERAL
FUNDS, PROPERTY AND RELATIONSHIPS.  WE CANNOT ASSUME THAT IT HAS BEEN
IGNORANT THAT LOSSES LONG HAVE ARISEN FROM INJURIES INFLICTED ON
SOLDIERS SUCH AS OCCURRED HERE.  THE CASE THEREFORE IS NOT ONE IN
WHICH, AS THE GOVERNMENT ARGUES, ALL THAT IS INVOLVED IS APPLICATION OF
"A WELL-SETTLED CONCEPT OF LEGAL LIABILITY TO A NEW SITUATION, WHERE
THAT NEW SITUATION IS IN EVERY RESPECT SIMILAR TO THE OLD SITUATION
THAT ORIGINALLY GAVE RISE TO THE CONCEPT  ...  "  AMONG OTHERS, ONE
TROUBLE WITH THIS IS THAT THE SITUATION IS NOT NEW, AT ANY RATE NOT SO
NEW THAT CONGRESS CAN BE PRESUMED NOT TO HAVE KNOWN OF IT OR TO HAVE
ACTED IN THE LIGHT OF THAT KNOWLEDGE. 

WHEN CONGRESS HAS THOUGHT IT NECESSARY TO TAKE STEPS TO PREVENT
INTERFERENCE WITH FEDERAL FUNDS, PROPERTY OR RELATIONS, IT HAS TAKEN
POSITIVE ACTION TO THAT END.  FN22  WE THINK IT WOULD HAVE DONE SO
HERE, IF THAT HAD BEEN ITS DESIRE.  THIS IT STILL MAY DO, IF OR WHEN IT
SO WISHES. 

IN VIEW OF THESE CONSIDERATIONS, EXERCISE OF JUDICIAL POWER TO
ESTABLISH THE NEW LIABILITY NOT ONLY WOULD BE INTRUDING WITHIN A FIELD
PROPERLY WITHIN CONGRESS' CONTROL AND AS TO A MATTER CONCERNING WHICH
IT HAS SEEN FIT TO TAKE NO ACTION.  TO ACCEPT THE CHALLENGE, MAKING THE
LIABILITY EFFECTIVE IN THIS CASE, ALSO WOULD INVOLVE A POSSIBLE ELEMENT
OF SURPRISE, IN VIEW OF THE SETTLED CONTRARY PRACTICE, WHICH ACTION BY
CONGRESS WOULD AVOID,  FN23  NOT ONLY HERE BUT IN THE MANY OTHER CASES
WE ARE TOLD MAY BE GOVERNED BY THE DECISION. 

FINALLY, IF THE COMMON-LAW PRECEDENTS RELIED ON WERE MORE PERTINENT
THAN THEY ARE TO THE TOTAL PROBLEM, PARTICULARLY IN VIEW OF ITS FEDERAL
AND ESPECIALLY ITS FISCAL ASPECTS, IN NONE OF THE SITUATIONS TO WHICH
THEY APPLY WAS THE QUESTION OF LIABILITY OR NO LIABILITY WITHIN THE
POWER OF ONE OF THE PARTIES TO THE LITIGATION TO DETERMINE.  IN THEM
THE COURTS STOOD AS ARBITERS BETWEEN CITIZENS, NEITHER OF WHOM COULD
DETERMINE THE OUTCOME OR THE POLICY PROPERLY TO BE FOLLOWED.  HERE THE
UNITED STATES IS THE PARTY PLAINTIFF TO THE SUIT.  AND THE UNITED
STATES HAS POWER AT ANY TIME TO CREATE THE LIABILITY.  THE ONLY
QUESTION IS WHICH ORGAN OF THE GOVERNMENT IS TO MAKE THE DETERMINATION
THAT LIABILITY EXISTS.  THAT DECISION, FOR THE REASONS WE HAVE STATED,
IS IN THIS INSTANCE FOR THE CONGRESS, NOT FOR THE COURTS.  UNTIL IT
ACTS TO ESTABLISH THE LIABILITY, THIS COURT AND OTHERS SHOULD WITHHOLD
CREATIVE TOUCH. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE INSTRUMENT OF RELEASE RECITED THAT THE PAYMENT "IS NOT, AND
IS NOT TO BE CONSTRUED AS" AN ADMISSION OF LIABILITY. 

FN2  THE GOVERNMENT'S PETITION FOR CERTIORARI ASSERTED THAT "UPWARDS
OF 450 INSTANCES OF NEGLIGENTLY INFLICTED INJURIES UPON SOLDIERS OF THE
UNITED STATES, REQUIRING HOSPITALIZATION AT GOVERNMENT EXPENSE, AND THE
PAYMENT OF COMPENSATION DURING INCAPACITATION, HAVE BEEN REPORTED BY
THE WAR DEPARTMENT TO THE DEPARTMENT OF JUSTICE IN THE PAST THREE
YEARS," AND THAT ADDITIONAL INSTANCES WERE BEING REPORTED TO THE WAR
DEPARTMENT AT THE RATE OF APPROXIMATELY 40 A MONTH. 

THE SUIT ALSO WAS SAID TO BE REPRESENTATIVE OF A NUMBER ALREADY
COMMENCED, E.G., UNITED STATES V. ATLANTIC COAST LINE R. CO., 64
F.SUPP.  289(E.D.N.C.), DISMISSED ON THE GROUND THAT NO MASTER-SERVANT
RELATIONSHIP EXISTED, AND UNITED STATES V. KLEIN, 153 F.2D 55(C.C.A.
8), AN ACTION TO RECOVER HOSPITAL AND MEDICAL EXPENSES INCURRED AS A
RESULT OF AN INJURY TO A CIVILIAN CONSERVATION CORPS EMPLOYEE,
DISMISSED FOR THE REASON THAT THE UNITED STATES EMPLOYEES' COMPENSATION
ACT, 5 U.S.C. SEC. 751 ET SEQ., WAS HELD TO AFFORD THE GOVERNMENT A
METHOD OF RECOUPMENT, CONCEDEDLY NOT AVAILABLE HERE. 

FN3  INCLUDING THE ISSUES OF NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE,
AS TO WHICH A STIPULATION OF RECORD ON THE APPEAL TO THE CIRCUIT COURT
OF APPEALS STATES THAT EVIDENCE OTHER THAN THAT SET FORTH IN THE
STIPULATION IS OMITTED "FOR THE REASON THAT APPELLANTS ARE NOT MAKING
ANY POINT ON APPEAL AS TO THE INSUFFICIENCY OF THE EVIDENCE EITHER TO
PROVE NEGLIGENCE OR THE ABSENCE OF CONTRIBUTORY NEGLIGENCE." 

ALTHOUGH THE DISTRICT COURT REFUSED TO FIND THAT ETZEL AS A SOLDIER
WAS "AS SUCH, A SERVANT OF THE PLAINTIFF," RESPONDENTS DESIGNATED AS
THE POINTS ON APPEAL ON WHICH THEY INTENDED TO RELY: THAT THE UNITED
STATES HAD NO CAUSE OF ACTION OR RIGHT TO RECOVER FOR THE COMPENSATION
PAID ETZEL OR FOR THE MEDICAL AND HOSPITAL EXPENDITURES; THAT HE "WAS
NOT AN EMPLOYEE OF THE PLAINTIFF NOR WAS PLAINTIFF HIS MASTER NOR DID
THE RELATION OF EMPLOYER OR EMPLOYEE EXIST BETWEEN THEM"; AND THAT HIS
RELEASE WAS EFFECTIVE TO END "ALL RIGHT TO RECOVER FOR LOST WAGES OR
MEDICAL OR HOSPITAL EXPENSES." 

FN4  THE CIRCUIT COURT OF APPEALS, CONSIDERING THAT AT THE OUTSET IT
WAS "CONFRONTED WITH THE PROBLEM OF WHAT LAW SHOULD APPLY," SAID:
"ASIDE FROM ANY FEDERAL LEGISLATION CONFERRING A RIGHT OF SUBROGATION
OR INDEMNIFICATION UPON THE UNITED STATES, IT WOULD SEEM THAT THE STATE
RULES OF SUBSTANTIVE COMMON LAW WOULD GOVERN AN ACTION BROUGHT BY THE
UNITED STATES IN THE ROLE OF A PRIVATE LITIGANT.  ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, 71, 78; UNITED STATES V. MOSCOW-IDAHO SEED CO.,
SUPRA (92 F.2D 170), AT PAGES 173, 174."  153 F.2D AT 960.  THE COURT
THEN INDICATED AGREEMENT WITH APPELLANT THAT CALIFORNIA'S STATUTORY
LAW, NAMELY, SEC. 49 OF THE CIVIL CODE, WAS CONTROLLING AND CONCLUDED
THAT THE GOVERNMENT'S CASE "MUST FAIL FOR TWO REASONS:  FIRST, BECAUSE
THE GOVERNMENT-SOLDIER RELATION IS NOT WITHIN THE SCOPE OF SEC. 49 OF
THE CODE, AND, SECOND, BECAUSE THE GOVERNMENT IS NOT A 'MASTER' AND THE
SOLDIER IS NOT A 'SERVANT' WITHIN THE MEANING OF THE CODE SECTION." 
153 F.2D AT 961. 

THE COURT FURTHER CONCLUDED, HOWEVER, THAT ETZEL'S RELEASE "COVERED
HIS LOST WAGES AND MEDICAL EXPENSES AS ELEMENTS OF DAMAGE," AND
THEREFORE WAS EFFECTIVE TO DISCHARGE ALL LIABILITY, INCLUDING ANY RIGHT
OF SUBROGATION IN THE UNITED STATES "WITHOUT STATUTORY AUTHORITY." 
FINALLY THE OPINION STATED:  "  ...  IT SEEMS CLEAR THAT CONGRESS DID
NOT INTEND THAT FOR TORTIOUS INJURIES TO A SOLDIER IN TIME OF WAR, THE
GOVERNMENT SHOULD BE SUBROGATED TO THE SOLDIER'S CLAIMS FOR DAMAGES." 
ID. AT 963. 

FN5  SEE NOTE 3.  THE GOVERNMENT'S CLAIM, OF COURSE, IS NOT ONE FOR
SUBROGATION.  IT IS RATHER FOR AN INDEPENDENT LIABILITY OWING DIRECTLY
TO ITSELF AS FOR DEPRIVATION OF THE SOLDIER'S SERVICES AND "INDEMNITY"
FOR LOSSES CAUSED IN DISCHARGING ITS DUTY TO CARE FOR HIM CONSEQUENT
UPON THE INJURIES INFLICTED BY APPELLANTS.  SEE ROBERT MARYS'S CASE,
VOL. 5, PART 9 CO. REP. AT 113A.  IT IS, IN EFFECT, FOR TORTIOUS
INTERFERENCE BY A THIRD PERSON WITH THE RELATION BETWEEN THE GOVERNMENT
AND THE SOLDIER AND CONSEQUENT HARM TO THE GOVERNMENT'S INTEREST,
RIGHTS AND OBLIGATIONS IN THAT RELATION, NOT SIMPLY TO SUBROGATION TO
THE SOLDIER'S RIGHTS AGAINST THE TORT-FEASORS. 

FN6  WE MAY ASSUME THAT THE RELEASE WAS NOT EFFECTIVE TO DISCHARGE
ANY LIABILITY OWING INDEPENDENTLY TO THE GOVERNMENT, CF. NOTE 5,
ALTHOUGH FULLY EFFECTIVE AS AGAINST ANY CLAIM BY THE SOLDIER.  ONLY IF
SUCH AN INDEPENDENT LIABILITY WERE FOUND TO EXIST WOULD ANY ISSUE
CONCERNING THE RELEASE BE REACHED. 

FN7  INCLUDING THE POWERS OF CONGRESS TO "PROVIDE FOR THE COMMON
DEFENCE," "RAISE AND SUPPORT ARMIES," AND "MAKE RULES FOR THE
GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES," U.S. CONST.,
ART. I, SEC. 8, AS WELL AS "TO DECLARE WAR" AND "TO MAKE ALL LAWS WHICH
SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING
POWERS  ...  "  IBID. 

FN8  THE DECISION OF THE CIRCUIT COURT OF APPEALS SEEMS TO HAVE BEEN
PREDICATED UPON THE ASSUMPTION THAT CONGRESS COULD OVERRIDE ANY
CONTRARY RULE OF STATE LAW AND THAT THE CALIFORNIA LAW GOVERNS ONLY IN
THE ABSENCE OF CONGRESS' AFFIRMATIVE ACTION.  SEE NOTE 4 SUPRA. 

FN9  SEE U.S. CONST., ART. IV, SEC. 3, CL. 2:  "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  ...  "; CAMFIELD V. UNITED STATES, 167 U.S. 518, 524:  "  ...
THE GOVERNMENT HAS, WITH RESPECT TO ITS OWN LANDS, THE RIGHTS OF AN
ORDINARY PROPRIETOR, TO MAINTAIN ITS POSSESSION AND TO PROSECUTE
TRESPASSERS"; UNITED STATES V. WALTER, 263 U.S. 15, 17:  "THE UNITED
STATES CAN PROTECT ITS PROPERTY BY CRIMINAL LAWS  ...  " 

FN10  BOARD OF COMMISSIONERS V. UNITED STATES, 308 U.S. 343; DEITRICK
V. GREANEY, 309 U.S. 190; ROYAL INDEMNITY CO. V. UNITED STATES, 313
U.S. 289; D'OENCH, DUHME & CO. V. FEDERAL DEPOSIT INS. CORP., 315 U.S.
447; UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174; HOLMBERG V.
ARMBRECHT, 327 U.S. 392.  SEE ALSO DISCUSSION IN NOTES, FEDERAL COMMON
LAW IN GOVERNMENT ACTION FOR TORT (1946) 41 ILL. L. REV. 551;
EXCEPTIONS TO ERIE V. TOMPKINS:  THE SURVIVAL OF FEDERAL COMMON LAW
(1946) 59 HARV. L. REV. 966.    FN11  IF THE RULING FOLLOWED, THAT THE
WATERS OF AN INTERSTATE STREAM MUST BE EQUITABLY APPORTIONED AMONG THE
STATES THROUGH WHICH IT FLOWS IN THE ARID REGIONS OF THE WEST, IS NOT
PROPERLY TO BE CHARACTERIZED AS MERELY ONE OF "FEDERAL COMMON LAW," IT
MARKS OFF AT ANY RATE ANOTHER AREA FOR FEDERAL JUDICIAL DECISION NOT
DEPENDENT ON APPLICATION OF STATE LAW OR, INDEED, UPON THE EXISTENCE OF
FEDERAL LEGISLATION. 

FN12  THE PROBLEM OF THE GOVERNMENT'S IMMUNITY TO SUIT IS DIFFERENT,
OF COURSE, FROM THAT OF THE NATURE OF THE SUBSTANTIVE RIGHTS IT MAY
ACQUIRE, FOR EXAMPLE, BY THE PURCHASE OF PROPERTY AS AGAINST CLAIMS OF
OTHERS FOR WHICH THERE MAY OR MAY NOT BE AVAILABLE A LEGAL REMEDY
AGAINST IT. 

FN13  SEE BLAIR V. COMMISSIONER, 300 U.S. 5; RECONSTRUCTION FINANCE
CORP. V. BEAVER COUNTY, 328 U.S. 204. 

FN14  THAT IS, IF POTENTIAL ADDED LIABILITY EVER CAN BE CONSIDERED AS
HAVING EFFECT TO DETER THE COMMISSION OF NEGLIGENT TORTS, THE
IMPOSITION OF LIABILITY TO INDEMNIFY THE GOVERNMENT IN ADDITION TO
INDEMNIFYING THE SOLDIER CONCEIVABLY COULD BE THOUGHT TO FURNISH SOME
ADDITIONAL INCENTIVE FOR AVOIDING SUCH HARMS. 

FN15  SEE NOTE 5 SUPRA. 

FN16  AS TO THE ANCIENT ACTION FOR LOSS OF SERVICES, EXISTENT IN
BRACTON'S DAY, SEE WIGMORE, INTERFERENCE WITH SOCIAL RELATIONS (1887)
21 AMER.  L. REV. 764; VIII HOLDSWORTH, A HISTORY OF ENGLISH LAW (2D
ED., 1937) 427-430; II ID., 459-464; IV ID., 379-387; POLLOCK, THE LAW
OF TORTS (13TH ED.)  234-239; CLERK & LINDSELL ON TORTS (8TH ED.)  201
212. 

FN17  EXTENSION OF THE ACTION PER QUOD SERVITIUM AMISIT TO DOMESTIC
RELATIONS, UPON A FICTIONAL BASIS, TOOK PLACE AS EARLY AS 1653.  NORTON
V. JASON, STYLE 398; SEE WINFIELD, TEXTBOOK OF THE LAW OF TORT (2D
ED.)  257. 

FN18  ANALOGIES ARE DRAWN CONCERNING THE NATURE OF THE RELATION BOTH
ON THE BASIS OF STATUS, UNDERLYING THE EARLIER FORMS OF LIABILITY, AND
ON THAT OF ITS ASSERTED CONTRACTUAL CHARACTER, IN THE LATTER INSTANCE
TO THE RATHER FAR-FETCHED EXTENT OF REGARDING THE DRAFTED SOLDIER AS
HAVING ENTERED INTO A "CONTRACT IMPLIED IN LAW." 

FN19  E.G., IN THE FICTION OF LOSS OF SERVICES INVOLVED IN THE
FATHER'S ACTION FOR A DAUGHTER'S SEDUCTION AND IN THE HUSBAND'S ACTION
FOR LOSS OF CONSORTIUM.  COMPARE SERJEANT MANNING'S OFT-QUOTED
STATEMENT THAT "THE QUASI FICTION OF SERVITIUM AMISIT AFFORDS
PROTECTION TO THE RICH MAN, WHOSE DAUGHTER OCCASIONALLY MAKES HIS TEA,
BUT LEAVES WITHOUT REDRESS THE POOR MAN, WHOSE CHILD, AS HERE, IS SENT,
UNPROTECTED, TO EARN HER BREAD AMONGST STRANGERS."  NOTE TO GRINNELL V.
WELLS, 7 MAN.  & GR. AT P. 1044. 

FN20  THAT IS, IN THE PHASE STRESSING THAT THE QUESTION IS NOT TO BE
DETERMINED BY APPLYING STATE LAW, THE EMPHASIS IS PUT UPON THE FEDERAL
ASPECT OF THE CASE, BUT IN THAT ADVANCING THE THESIS OF LIABILITY FOR
ACCEPTANCE AS THE FEDERAL RULE, STRESS GOES TO THE TORT GROUNDING OF
THE ARGUMENT. 

FN21  THE GOVERNMENT DOES NOT CONTEND THAT THE LIABILITY SOUGHT HAS
EXISTED HERETOFORE.  IT FRANKLY URGES THE CREATION OF A NEW ONE.  THE
ONLY DECISION DETERMINING THE MATTER, WHICH HAS COME TO OUR ATTENTION,
IN ADDITION TO THE CASES CITED ABOVE IN NOTE 2, IS THAT OF THE HIGH
COURT OF AUSTRALIA IN COMMONWEALTH V. QUINCE, 68 C.L.R. 227, AFF'G,
(1943) Q.S.R. 199, DENYING LIABILITY.  SEE ALSO ATTORNEY-GENERAL V.
VALLE-JONES, (1935) 2 K.B. 209, REACHING A CONTRARY RESULT, IN WHICH
HOWEVER THE PRINCIPAL ISSUE APPARENTLY WENT BY CONCESSION. 

FN22  SEE, E.G., 35 STAT. 1097, 18 U.S.C. SEC. 94(ENTICING DESERTION
FROM THE MILITARY OR NAVAL SERVICE); 35 STAT. 1097, 18 U.S.C. SEC.
95(ENTICING WORKMEN FROM ARSENALS OR ARMORIES); 35 STAT. 1097, 18
U.S.C. SEC. 99(ROBBERY OF PERSONAL PROPERTY BELONGING TO THE UNITED
STATES); 35 STAT. 1097, 18 U.S.C. SEC. 100(EMBEZZLEMENT OF PROPERTY
BELONGING TO THE UNITED STATES). 

OF COURSE IT HAS NOT BEEN NECESSARY FOR CONGRESS TO PASS STATUTES
IMPOSING CIVIL LIABILITY IN THOSE SITUATIONS WHERE IT HAS BEEN
UNDERSTOOD SINCE THE DAYS OF THE COMMON LAW THAT THE SOVEREIGN IS
PROTECTED FROM TORTIOUS INTERFERENCE.  THUS, TRESPASS ON LAND BELONGING
TO THE UNITED STATES IS A CIVIL WRONG TO BE REMEDIED IN THE COURTS. 
COTTON V. UNITED STATES, 11 HOW.  229. 

FN23  NECESSARILY SUCH AN ELEMENT OR EFFECT OFTEN, IF NOT ALWAYS,
EXISTS WHENEVER A NEW LIABILITY IS CREATED, AS AT COMMON LAW, IN THE
NATURE OF RESPONSIBILITY FOR TORT.  THIS, HOWEVER, COULD NOT BE MADE AN
INVARIABLY CONTROLLING CONSIDERATION IN CASES PRESENTING COMMON-LAW
ISSUES CONCERNING SUCH LIABILITIES TO TRIBUNALS WHOSE BUSINESS IT IS
PRIMARILY TO DECIDE THEM, FOR TO DO THIS WOULD FORESTALL ALL GROWTH IN
THE LAW EXCEPT BY LEGISLATIVE ACTION.  THE FACTOR, HOWEVER, IS ONE
GENERALLY TO BE TAKEN INTO ACCOUNT AND WEIGHED AGAINST THE SOCIAL NEED
DICTATING THE NEW RESPONSIBILITY, IN CASES SQUARELY PRESENTING THOSE
ISSUES AND NOT COMPLICATED, AS THIS CASE IS, BY CONSIDERATIONS ARISING
FROM DISTRIBUTIONS OF POWER IN THE FEDERAL SYSTEM. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON, DISSENTING. 

IF THE DEFENDANT IN THIS CASE HAD BEEN HELD LIABLE FOR NEGLIGENTLY
INFLICTING PERSONAL INJURIES ON A CIVILIAN, IT WOULD HAVE BEEN OBLIGED
TO PAY, AMONG OTHER ITEMS OF DAMAGE, THE REASONABLE COST OF RESULTING
CARE BY HIS DOCTOR, HOSPITAL AND NURSE, AND THE EARNINGS LOST DURING
THE PERIOD OF DISABILITY.  IF THE CIVILIAN BORE THIS COST HIMSELF, IT
WOULD BE PART OF HIS OWN DAMAGE; IF THE CIVILIAN WERE A WIFE AND THE
EXPENSE FELL UPON HER HUSBAND, HE WOULD BE ENTITLED TO RECOVER IT; IF
THE CIVILIAN WERE A CHILD, IT WOULD BE RECOVERABLE BY THE PARENT.  THE
LONG-ESTABLISHED LAW IS THAT A WRONGDOER WHO COMMITS A TORT AGAINST A
CIVILIAN MUST MAKE GOOD TO SOMEBODY THESE ELEMENTS OF THE COSTS
RESULTING FROM HIS WRONGDOING. 

WHAT THE COURT NOW HOLDS IS THAT IF THE VICTIM OF NEGLIGENCE IS A
SOLDIER, THE WRONGDOER DOES NOT HAVE TO MAKE GOOD THESE ITEMS OF
EXPENSE TO THE ONE WHO BEARS THEM.  THE UNITED STATES IS UNDER THE DUTY
TO FURNISH MEDICAL SERVICES, HOSPITALIZATION AND NURSING TO A SOLDIER
AND LOSES HIS SERVICES WHILE HIS PAY GOES ON.  THESE COSTS, WHICH
ESSENTIALLY FALL UPON THE UNITED STATES BY REASON OF THE SOVEREIGN
SOLDIER RELATIONSHIP, THE COURT HOLDS CANNOT BE RECOVERED BY THE UNITED
STATES FROM THE WRONGDOER AS THE PARENT CAN IN THE CASE OF A CHILD OR
THE HUSBAND CAN IN THE CASE OF A WIFE.  AS A MATTER OF JUSTICE, I SEE
NO REASON WHY TAXPAYERS OF THE UNITED STATES SHOULD RELIEVE A WRONGDOER
OF PART OF HIS NORMAL LIABILITY FOR PERSONAL INJURY WHEN THE VICTIM OF
NEGLIGENCE HAPPENS TO BE A SOLDIER.  AND I CANNOT SEE WHY THE
PRINCIPLES OF TORT LAW THAT ALLOW A HUSBAND OR PARENT TO RECOVER DO NOT
LOGICALLY SUSTAIN THE RIGHT OF THE UNITED STATES TO RECOVER IN THIS
CASE. 

BUT THE COURT HAS QUALMS ABOUT APPLYING THESE WELLKNOWN PRINCIPLES OF
TORT LAW TO THIS NOVEL STATE OF FACTS, UNLESS DIRECTED TO DO SO BY
CONGRESS.  THE LAW OF TORTS HAS BEEN DEVELOPED ALMOST EXCLUSIVELY BY
THE JUDICIARY IN ENGLAND AND THIS COUNTRY BY COMMON LAW METHODS.  WITH
FEW EXCEPTIONS, TORT LIABILITY DOES NOT DEPEND UPON LEGISLATION.  IF
THERE IS ONE FUNCTION WHICH I SHOULD THINK WE WOULD FEEL FREE TO
EXERCISE UNDER A CONSTITUTION WHICH VESTS IN US JUDICIAL POWER, IT
WOULD BE TO APPLY WELL-ESTABLISHED COMMON LAW PRINCIPLES TO A CASE
WHOSE ONLY NOVELTY IS IN FACTS.  THE COURTS OF ENGLAND, WHOSE SCRUPLES
AGAINST LEGISLATING ARE AT LEAST AS SENSITIVE AS OURS NORMALLY ARE,
HAVE NOT HESITATED TO SAY THAT HIS MAJESTY'S TREASURY MAY RECOVER
OUTLAY TO CURE A BRITISH SOLDIER FROM INJURY BY A NEGLIGENT WRONGDOER
AND THE WAGES HE WAS MEANWHILE PAID.  ATTORNEY-GENERAL V. VALLE-JONES,
(1935) 2 K.B. 209.  I THINK WE COULD HOLD AS MUCH WITHOUT BEING
SUSPECTED OF TRYING TO USURP LEGISLATIVE FUNCTION. 
..END :





















UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319 


ARGUED FEBRUARY 3-5, 1947.  - DECIDED JUNE 23, 1947.  - 63 F.SUPP.  513,
AFFIRMED. 


1.  IN A SUIT TO ENJOIN VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN
ANTI-TRUST ACT, THE DISTRICT COURT FOUND THAT DEFENDANTS HAD
PARTICIPATED IN AN "INTERNATIONAL CARTEL" CONSTITUTING A COMBINATION OR
CONSPIRACY IN RESTRAINT OF TRADE AND COMMERCE IN TITANIUM PRODUCTS
AMONG THE SEVERAL STATES OF THE UNITED STATES AND WITH FOREIGN NATIONS
THROUGH THE POOLING OF PATENTS AND THE ALLOCATION OF MARKETS AND THAT
THEY HAD BEEN AND STILL WERE PARTIES TO AGREEMENTS IN RESTRAINT OF SUCH
TRADE AND COMMERCE IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  HELD: 

(A)  COUNSEL FOR TWO OF THE DEFENDANTS HAVING ACCEPTED CANCELLATION
OF THE AGREEMENTS AND AN INJUNCTION AGAINST THEIR CONTINUATION OR
RENEWAL, THIS COURT ACCEPTS WITHOUT DISCUSSION THE DISTRICT COURT'S
FINDING THAT THESE TWO DEFENDANTS PARTICIPATED SINCE 1920 IN THE CARTEL
IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  PP. 325-326. 

(B)  THIS COURT SUSTAINS THE FINDING OF THE DISTRICT COURT THAT THE
THIRD DEFENDANT PARTICIPATED IN SUCH ILLEGAL COMBINATION AFTER 1933. 
PP. 326-327. 

(C)  THIS COURT SUSTAINS THE FINDING OF THE DISTRICT COURT THAT THE
CONTRACT BETWEEN TWO OF THE DEFENDANTS, UNDER WHICH THEY UTILIZED THEIR
PATENTS TO CONTROL AND REGULATE THE MANUFACTURE AND SALE OF TITANIUM
PRODUCTS IN THE UNITED STATES, WAS OFFENSIVE TO THE ANTITRUST LAWS
APART FROM THE RELATION OF THAT CONTRACT, AND OF THE PARTIES THERETO,
TO FOREIGN PRODUCERS.  PP. 327-328. 

2.  THE DISTRICT COURT ADJUDGED UNLAWFUL AND CANCELED CERTAIN
AGREEMENTS BETWEEN DEFENDANTS AND BETWEEN THEM AND VARIOUS CO
CONSPIRATORS; ENJOINED FURTHER PERFORMANCE, CONTINUATION OR RENEWAL OF
SUCH AGREEMENTS; ENJOINED DEFENDANTS FROM ENTERING INTO SIMILAR
AGREEMENTS IN THE FUTURE; ORDERED DEFENDANTS TO GRANT TO ANY APPLICANT
THEREFOR A NONEXCLUSIVE LICENSE UNDER CERTAIN PATENTS AT A UNIFORM
REASONABLE ROYALTY; AUTHORIZED RECIPROCAL LICENSES ON CERTAIN TERMS;
ORDERED CERTAIN DEFENDANTS TO PRESENT TO THE COURT FOR ITS APPROVAL A
PLAN FOR DIVESTING THEMSELVES OF THEIR STOCKHOLDINGS AND OTHER
FINANCIAL INTERESTS IN CERTAIN OTHER COMPANIES OR FOR THE PURCHASE OF
THE ENTIRE STOCKHOLDINGS AND OTHER FINANCIAL INTERESTS IN SUCH
COMPANIES; RETAINED JURISDICTION; AND PROVIDED FOR SUPERVISION.  HELD:
THIS DECREE DID NOT EXCEED THE DISTRICT COURT'S DISCRETION.  PP. 328
335. 

(A)  TO A LARGE EXTENT, THE PROVISIONS OF THIS DECREE ARE MATTERS
LYING IN THE DISCRETION OF THE DISTRICT COURT.  P. 334. 

(B)  THE DISTRICT COURT WAS CONFRONTED WITH AN OBLIGATION TO GIVE
EFFECT, ON THE ONE HAND, TO THE PROVISIONS OF THE PATENT LAWS GRANTING
CERTAIN VALUABLE RIGHTS IN THE NATURE OF MONOPOLIES AND, ON THE OTHER
HAND, TO THE PROVISIONS OF THE SHERMAN ACT PROHIBITING ANY COMBINATION
OR CONSPIRACY IN RESTRAINT OF TRADE.  PP. 334-335. 

(C)  THE ESSENTIAL CONSIDERATION IS THAT THE REMEDY SHALL BE AS
EFFECTIVE AND FAIR AS POSSIBLE IN PREVENTING CONTINUED OR FUTURE
VIOLATIONS OF THE SHERMAN ACT IN THE LIGHT OF THE FACTS OF THE
PARTICULAR CASE.  P. 335. 

3.  THE DECREE SHOULD NOT BE MODIFIED SO AS TO PROVIDE FOR COMPULSORY
ROYALTY-FREE LICENSES OR SO AS TO ENJOIN THE PATENTEES OR LICENSEES
FROM ENFORCING THE TERMS OF THE PATENTS INVOLVED.  PP. 335-351. 

(A)  WITHOUT REACHING THE QUESTION WHETHER ROYALTY-FREE LICENSING OR
A PERPETUAL INJUNCTION AGAINST THE ENFORCEMENT OF A PATENT IS
PERMISSIBLE AS A MATTER OF LAW IN ANY CASE, THE PRESENT DECREE
REPRESENTS AN EXERCISE OF SOUND JUDICIAL DISCRETION.  P. 338. 

(B) THIS BEING A CIVIL, NOT A CRIMINAL, PROCEEDING, THE PURPOSE OF
THE DECREE IS NOT PUNISHMENT BUT EFFECTIVE AND FAIR ENFORCEMENT.  PP.
338, 348. 

(C)  ON THE FACTS OF THIS CASE, SUCH A MODIFICATION OF THE DECREE HAS
NOT BEEN SHOWN TO BE NECESSARY IN ORDER TO ENFORCE EFFECTIVELY THE
ANTITRUST ACT.  PP. 338-349. 

(D)  TO REDUCE ALL ROYALTIES AUTOMATICALLY TO ZERO, REGARDLESS OF
THEIR NATURE AND REGARDLESS OF THEIR NUMBER, APPEARS, ON ITS FACE, TO
BE INEQUITABLE WITHOUT SPECIAL PROOF TO SUPPORT SUCH A CONCLUSION.  P.
349. 

(E)  WHAT WILL BE "REASONABLE ROYALTIES" WILL DEPEND UPON THE FACTS
OF EACH CASE.  P. 349. 

(F)  UNDER ITS DECREE, THE DISTRICT COURT RETAINS SUFFICIENT
JURISDICTION TO ENABLE IT TO VACATE OR MODIFY ITS ORDERS FIXING
REASONABLE ROYALTY RATES IF IT FINDS SUCH ACTION TO BE NECESSARY OR
APPROPRIATE.  P. 351. 

4.  ON THE FACTS OF THIS CASE, THERE WAS NEITHER PRECEDENT NOR GOOD
REASON FOR A REQUIREMENT (REQUESTED BY THE GOVERNMENT AND DENIED BY THE
DISTRICT COURT) THAT NATIONAL LEAD AND DU PONT EACH SUBMIT A PLAN FOR
THE DIVESTITURE OF ONE OF ITS TWO PRINCIPAL TITANIUM PIGMENT PLANTS,
TOGETHER WITH THE RELATED PHYSICAL PROPERTIES.  PP. 351-353. 

(A)  THE EXISTING VIGOROUS COMPETITION BETWEEN THESE TWO DEFENDANTS
SUGGESTED THAT THE DISTRICT COURT WOULD DO WELL TO REMOVE UNLAWFUL
HANDICAPS FROM IT BUT DEMONSTRATES NO SUFFICIENT BASIS FOR WEAKENING
ITS FORCE BY DIVESTING EACH OF THE TWO LARGEST COMPETITORS OF ONE OF
ITS PRINCIPAL PLANTS.  PP. 352-353. 

(B)  IT IS NOT FOR THE COURTS TO REALIGN AND REDIRECT EFFECTIVE AND
LAWFUL COMPETITION WHERE IT ALREADY EXISTS AND NEEDS ONLY TO BE
RELEASED FROM RESTRAINTS THAT VIOLATE THE ANTITRUST LAWS.  P. 353. 

(C)  TO SEPARATE THE OPERATING UNITS OF GOING CONCERNS WITHOUT MORE
SUPPORTING EVIDENCE THAN HAS BEEN PRESENTED HERE TO ESTABLISH EITHER
THE NEED OR THE FEASIBILITY OF IT WOULD AMOUNT TO AN ABUSE OF
DISCRETION.  P. 353. 

5.  THE DISTRICT COURT DID NOT EXCEED ITS DISCRETION IN REQUIRING
THAT, DURING A PERIOD OF THREE YEARS, DEFENDANTS MAKE AVAILABLE TO
LICENSEES UNDER THEIR PATENTS, AT A REASONABLE CHARGE, CERTAIN
INFORMATION IN WRITING AS TO THE METHODS AND PROCESSES USED BY THE
LICENSOR AT THE DATE OF LICENSING.  HARTFORD-EMPIRE CO. V. UNITED
STATES, 323 U.S. 386, 413, 418, DISTINGUISHED.  PP. 353-358. 

(A)  THE JUSTIFICATION FOR THE COMPULSORY IMPARTING OF METHODS AND
PROCESSES RESTS UPON ITS APPROPRIATENESS AND UPON THE NECESSITY FOR IT
IN PROVIDING AN EFFECTIVE DECREE - NOT UPON A PUNITIVE PURPOSE.  P.
357. 

(B)  SINCE THE PUBLIC INTEREST REQUIRES THAT THE COURT BE PERMITTED
TO PRODUCE THE MOST EFFECTIVE AND GENERALLY FAIR DECREE THAT IT CAN
DEVISE TO GIVE EFFECT SIMULTANEOUSLY TO THE ANTITRUST LAWS AND THE
PATENT LAWS, THE DECREE REPRESENTS A PERMISSIBLE EXERCISE OF JUDICIAL
DISCRETION - EVEN THOUGH IT INCLUDES, WITHIN NARROW LIMITS, DISCLOSURE
OF TECHNICAL INFORMATION BY ONE DEFENDANT TO ANOTHER DEFENDANT WHICH IS
ITS LEADING COMPETITOR.  PP. 358-359. 

6.  THE DISTRICT COURT DID NOT EXCEED ITS DISCRETION IN DENYING THE
GOVERNMENT'S REQUEST THAT THERE BE SUBSTITUTED A REQUIREMENT THAT
DEFENDANTS FURNISH TO ANY APPLICANT, AT A REASONABLE CHARGE, DURING THE
PERIOD OF THREE YEARS, TECHNICAL INFORMATION DESIRED BY THE APPLICANT
RELATING TO THE METHODS AND PROCESSES FOR MANUFACTURING TITANIUM
PIGMENTS.  PP. 353, 359. 

(A)  THE DECREE IS WITHIN THE PERMISSIBLE BREADTH OF THE DISTRICT
COURT'S DISCRETION OVER THE CONDITIONS UNDER WHICH TECHNICAL
INFORMATION SHALL BE REQUIRED TO BE SHARED WITH THE WORLD.  P. 359. 

(B)  THE PROPOSAL TO THROW THE FIELD OF TECHNICAL KNOWLEDGE IN THIS
FIELD WIDE-OPEN WOULD DISCOURAGE, RATHER THAN ENCOURAGE, COMPETITIVE
RESEARCH AND THUS WOULD BE CONTRARY TO, RATHER THAN IN CONFIRMITY WITH,
THE PRESENT POLICY OF THE PATENT LAWS.  P. 359. 

7.  THE DISTRICT COURT DID NOT EXCEED ITS DISCRETION IN DENYING THE
GOVERNMENT'S REQUEST THAT THERE BE OMITTED FROM THE DECREE A PROVISION
THAT DEFENDANTS MAY MAKE THE GRANT OF ANY LICENSE BY EITHER OF THEM TO
AN APPLICANT UNDER THE DECREE CONDITIONED UPON THE RECIPROCAL GRANT OF
A LICENSE BY THE APPLICANT, AT A REASONABLE ROYALTY, UNDER CERTAIN
DESCRIBED PATENTS OWNED OR CONTROLLED BY SUCH APPLICANT.  PP. 359-360. 

8.  THE GOVERNMENT'S REQUEST TO OMIT THE SIX-MONTHS' TIME LIMIT
IMPOSED BY THE DECREE UPON THE OPTIONS OF CERTAIN CORPORATIONS TO
SECURE CERTAIN LICENSES UNDER THE DECREE NEED NOT BE GRANTED, SINCE THE
NEW EFFECTIVE DATE TO BE GIVEN THE DECREE PURSUANT TO THE ORDER OF THIS
COURT WILL ALLOW AMPLE TIME FOR THE EXERCISE OF THIS OPTION UNDER ITS
TERMS.  PP. 360-361. 

9.  THE DISTRICT COURT DID NOT EXCEED ITS DISCRETION IN DENYING THE
REQUEST OF A DEFENDANT TO MODIFY THE DECREE SO AS TO ELIMINATE LANGUAGE
WHICH, THE DEFENDANT CLAIMED, FORBIDS NORMAL AND USUAL BUSINESS
ARRANGEMENTS BETWEEN THE DEFENDANT AND OTHER PRODUCERS OF TITANIUM
PRODUCTS.  PP. 361-363. 

(A)  THIS PROVISION DEALS SOLELY WITH THE FUTURE ENFORCEABILITY OF
EXISTING CONTRACTS WHICH HAVE BEEN FOUND TO VIOLATE THE SHERMAN ACT AND
IT IMPOSES NO UNJUSTIFIED RESTRICTION ON DEFENDANT'S POWER TO
CONTRACT.  P. 362. 

(B)  IF DEFENDANT LATER CAN DEMONSTRATE THAT ITS RIGHT OF CONTRACT
HAS BEEN UNDULY RESTRICTED, IT MAY, UNDER THE TERMS OF THE DECREE,
APPLY TO THE DISTRICT COURT FOR A MODIFICATION.  P. 363. 

10.  THE ACQUISITION BY DEFENDANTS OF STOCK AND OTHER FINANCIAL
INTERESTS IN CERTAIN FOREIGN COMPANIES HAVING BEEN PART AND PARCEL OF
UNLAWFUL TERRITORIAL ALLOCATION AGREEMENTS, THE FUTURE PERFORMANCE OF
WHICH HAS BEEN ENJOINED, THE DISTRICT COURT DID NOT EXCEED ITS
DISCRETION IN DECREEING THAT, WITHIN ONE YEAR, DEFENDANTS SHALL PRESENT
TO THE DISTRICT COURT FOR ITS APPROVAL A PLAN FOR DIVESTING THEMSELVES
OF THEIR STOCKHOLDINGS AND OTHER FINANCIAL INTERESTS IN SUCH FOREIGN
COMPANIES OR FOR THE PURCHASE OF THE ENTIRE STOCKHOLDINGS AND
INTERESTS, DIRECT OR INDIRECT, THEREIN.  P. 363. 

11.  IN VIEW OF THE STAY GRANTED BY A JUSTICE OF THIS COURT
SUSPENDING CERTAIN PROVISIONS OF THE DECREE PENDING DETERMINATION OF
THESE APPEALS, THE DECREE SHALL BE DEEMED, FOR THE PURPOSES OF THOSE
PARAGRAPHS AND FOR THE RUNNING OF TIME THEREON, TO TAKE EFFECT ON THE
EFFECTIVE DATE OF THE MANDATE TO BE ISSUED BY THIS COURT.  PP. 363
364. 

UNITED STATES V. NATIONAL LEAD CO. ET AL. 

NO. 89.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK* . 

*TOGETHER WITH NO. 90, NATIONAL LEAD CO. ET AL. V. UNITED STATES, AND
NO. 91, E.I. DU PONT DE NEMOURS & CO. V. UNITED STATES, ALSO ON APPEAL
FROM THE SAME COURT. 

IN A PROCEEDING IN EQUITY INSTITUTED UNDER SEC. 4 OF THE SHERMAN
ANTITRUST ACT, THE DISTRICT COURT FOUND THAT DEFENDANTS HAD VIOLATED
SEC. 1 OF THE ACT AND ISSUED A DECREE TO PREVENT AND RESTRAIN FURTHER
VIOLATIONS.  63 F.SUPP.  513.  BOTH THE GOVERNMENT AND THE DEFENDANTS
APPEALED.  AFFIRMED, P. 364. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT BY THE UNITED STATES OF AMERICA, JUNE 24,
1944, IN THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AGAINST NATIONAL LEAD COMPANY (A NEW JERSEY
CORPORATION, HERE CALLED NATIONAL LEAD OR NL), ITS WHOLLY OWNED
SUBSIDIARY, TITAN COMPANY, INC. (A DELAWARE CORPORATION, HERE CALLED
TITAN INC. OR TINC) AND E.I. DU PONT DE NEMOURS AND COMPANY (A DELAWARE
CORPORATION, HERE CALLED DU PONT OR DP).  IT IS A PROCEEDING IN EQUITY
INSTITUTED UNDER SEC. 4 OF THE SHERMAN ANTITRUST ACT, 26 STAT. 209, 36
STAT. 1167, 15 U.S.C. SEC. 4, TO PREVENT AND RESTRAIN ALLEGED
VIOLATIONS OF SECS. 1 AND 2 OF THAT ACT, 26 STAT. 209, 50 STAT. 693, 15
U.S.C. SECS. 1 AND 2.  THE TRIAL WAS CONDUCTED BY JUDGE SIMON H.
RIFKIND OF THAT COURT.  IT BEGAN DECEMBER 4, 1944, AND ENDED MARCH 14,
1945.  HIS OPINION WAS FILED JULY 5, 1945.  HIS 96 FINDINGS OF FACT AND
TWO CONCLUSIONS OF LAW WERE ENTERED OCTOBER 2, 1945.  AFTER EXTENDED
CONSIDERATION OF ITS TERMS, BY THE COURT AND BY COUNSEL FOR ALL
PARTIES, THE DECREE WAS ENTERED OCTOBER 11, 1945.  THE OPINION AND
DECREE ARE REPORTED IN 63 F.SUPP.  513-535.  THE FINDINGS OF FACT,
CONCLUSIONS OF LAW AND MUCH OF THE DETAILED DISCUSSION OF THE DECREE
ARE IN THE RECORD.  SEPARATE APPEALS WERE FILED IN THIS COURT, IN CASE
NO. 89 BY THE UNITED STATES, IN CASE NO. 90 BY NATIONAL LEAD AND TITAN
INC. AND IN CASE NO. 91 BY DU PONT.  THE THREE COMPANIES ARE SOMETIMES
REFERRED TO AS "THE APPELLANT COMPANIES."  WE NOTED PROBABLE
JURISDICTION IN EACH APPEAL, MAY 20, 1946, AND THE THREE APPEALS WERE
ARGUED TOGETHER FEBRUARY 3-5, 1947.  A PARTIAL STAY OF THE DECREE HAD
BEEN GRANTED BY MR. JUSTICE REED, ON JANUARY 2, 1946, PENDING
DETERMINATION OF THE APPEALS.  REFERENCE IS MADE TO THE OPINION OF THE
DISTRICT COURT FOR A RECITAL OF THE COMPLEX FACTS WHICH IT HAD TO
CONSIDER IN ORDER TO REACH ITS CONCLUSION THAT NATIONAL LEAD, TITAN
INC. AND DU PONT EACH VIOLATED SEC. 1 OF THE SHERMAN ACT,  FN1
ALTHOUGH IT FOUND A MARKED DIFFERENCE BETWEEN THE CONDUCT OF NATIONAL
LEAD AND OF ITS SUBSIDIARY, TITAN INC., ON THE ONE HAND, AND THAT OF DU
PONT ON THE OTHER.  THIS COURT AFFIRMS THE JUDGMENT OF THE DISTRICT
COURT, EXCEPT AS TO THE ORIGINAL EFFECTIVE DATES OF CERTAIN OF ITS
PROVISIONS, AND OUR DISCUSSION WILL RELATE LARGELY TO THE ASSIGNMENTS
OF ERROR AS TO THE TERMS OF THE DECREE. 

I. THE FIRST ISSUE PRESENTED TO THE DISTRICT COURT WAS THAT OF THE
PARTICIPATION OF NATIONAL LEAD AND TITAN INC. IN A SO-CALLED
"INTERNATIONAL CARTEL" DATING BACK TO 1920, AND CONSTITUTING A
COMBINATION OR CONSPIRACY IN RESTRAINT OF TRADE AND COMMERCE IN
TITANIUM PIGMENTS AND COMPOUNDS, AMONG THE SEVERAL STATES OF THE UNITED
STATES AND WITH FOREIGN NATIONS, WHICH COMBINATION, AFTER 1933, WAS
ALLEGED TO INCLUDE DU PONT.  THE DISTRICT COURT FOUND SUCH
PARTICIPATION.  FN2  IN THEIR BRIEF ON APPEAL IN NO. 90, NATIONAL LEAD
AND TITAN INC. SAID: 

"THE GOVERNMENT'S CASE WAS BASED ON A SERIES OF CLOSELY RELATED
AGREEMENTS MADE BETWEEN 1920 AND 1944.  THE AGREEMENTS HAVE BEEN
CANCELLED AND CONTINUATION OR RENEWAL HAS BEEN ENJOINED.  THE APPEALS
ARE GREATLY SIMPLIFIED BY THE FACT THAT WE ACCEPT THE CANCELLATION AND
THE INJUNCTION AGAINST CONTINUATION OR RENEWAL.  WE SUBMIT, HOWEVER,
THAT THE COURT WENT TOO FAR IN FORBIDDING NORMAL AND USUAL CONTRACTUAL
ARRANGEMENTS." 

ACCORDINGLY, THE FINDING OF THE DISTRICT COURT, AS TO THE
PARTICIPATION OF NATIONAL LEAD AND TITAN INC. IN THE VIOLATION OF SEC.
1 OF THE SHERMAN ACT, IS ACCEPTED HERE WITHOUT FURTHER DISCUSSION. 

II.  THE SECOND ISSUE WAS THAT OF THE PARTICIPATION OF DU PONT IN
SUCH COMBINATION AFTER 1933.  THE DISTRICT COURT FOUND THAT DU PONT
"JOINED THE CONSPIRACY FOUND HEREIN TO EXIST BETWEEN, NL AND ITS
FOREIGN ASSOCIATES.  DP'S STATUS RIGHTS AND OBLIGATIONS WERE DIFFERENT
FROM THOSE OF THE OTHER MEMBERS OF THE COMBINATION.  DP DID NOT
THEREAFTER WITHDRAW."  FINDING OF FACT 73.  THE DISTRICT COURT, IN ITS
OPINION, ALSO STATED THAT - 

"AT LEAST THEN AS TO TERRITORIAL DELIMITATIONS OF THE TITANIUM
PIGMENT BUSINESS, DP JOINED THE COMBINATION.   ... 

     .         .         .         .         . 

"MY GENERAL SUMMARY OF THE EVIDENCE ON THIS ISSUE IS THAT DP WAS A
MEMBER OF THE COMBINATION - TRUE, A SPECIAL MEMBER, WITH A STATUS,
RIGHTS AND OBLIGATIONS, DIFFERENT FROM THAT OF THE OTHER MEMBERS, BUT A
MEMBER NONETHELESS."  63 F.SUPP.  AT 530, 531, AND SEE THE PREAMBLE TO
THE DECREE AT 532.  FN3 

THIS FINDING IS CONTESTED VIGOROUSLY BY DU PONT AND IS THE PRINCIPAL
SUBJECT MATTER OF ITS APPEAL IN NO. 91.  AFTER CAREFUL CONSIDERATION,
WE AGREE WITH THE FOLLOWING CONCLUSION OF THE DISTRICT COURT: 

"IN SHARP CONTRAST WITH NL, DP EXHIBITED, FROM THE VERY BEGINNING OF
ITS INTEREST IN TITANIUM, AN ALERT CONSCIOUSNESS OF THE ANTI-TRUST LAWS
AND MOVED CAUTIOUSLY AND UNDER THE GUIDANCE OF TRAINED ANTI-TRUST
LAWYERS.  THE QUESTION IS WHETHER IT SUCCEEDED IN AVOIDING NOT ONLY THE
FORM BUT ALSO THE SUBSTANCE OF TRANSGRESSION.  I HAVE CONCLUDED THAT IT
HAS NOT; ...  "  ID. AT 527. 

IT WOULD SERVE NO BENEFICIAL PURPOSE TO REVIEW HERE THE EVIDENCE UPON
WHICH THAT COURT BASED ITS CONCLUSION.  ITS OPINION ANALYZES THE FACTS
(ID. AT 527-531) AND, IN THE LIGHT OF THE RECORD AS A WHOLE, WE FIND IN
THOSE FACTS THE SUPPORT NECESSARY FOR THE CONCLUSION REACHED. 

III.  RELATED TO THESE ISSUES WAS A THIRD.  THIS WAS WHETHER THE
CONTRACT BETWEEN NATIONAL LEAD AND DU PONT WAS OFFENSIVE TO THE
ANTITRUST LAWS APART FROM THE RELATION OF THAT CONTRACT, AND OF THE
PARTIES THERETO, TO THE FOREIGN PRODUCERS.  THE DISTRICT COURT FOUND
THAT IT WAS AND ALSO RELATED IT TO THE INTERNATIONAL SITUATION.  IT
FOUND THAT - 

"THE DEFENDANTS NL, DP AND TINC HAVE UTILIZED THEIR PATENTS WHICH
RELATE TO THE MANUFACTURE AND USE OF TITANIUM PIGMENTS TO CONTROL AND
REGULATE THE MANUFACTURE AND SALE OF TITANIUM PIGMENTS AND COMPOUNDS IN
THE UNITED STATES; AND NL AND TINC WITH THE CO-OPERATION OF DP HAVE
DONE SO THROUGHOUT THE REST OF THE WORLD."  FINDING OF FACT 95,
SUBPARAGRAPH 9. 

IN ITS OPINION THE DISTRICT COURT EMPHASIZED ALSO "THE GREAT POWER
THEY ACQUIRED" (ID. AT 531) AND INDICATED CRITICISM OF LIMITATIONS
ORIGINALLY INSERTED IN CERTAIN IMPORTANT LICENSES, ALTHOUGH LATER
REMOVED FROM THEM.  ID. AT 532.  ADDED TOGETHER, THE CONTROL OF THE
PATENTS COVERED BY THIS AGREEMENT GAVE TO NATIONAL LEAD AND DU PONT
"DOMINATION AND CONTROL OVER THE TITANIUM PIGMENT BUSINESS IN THE
U.S."  FINDING OF FACT 79.  THE DISTRICT COURT REFERRED TO THE
"PROLIFERATION OF PATENTS" AS ANOTHER "INEVITABLE CONSEQUENCE" OF THE
AGREEMENT.  ID. AT 532.  THIS WAS EXPLAINED TO MEAN THE GREAT
MULTIPLICATION OF RELATED PATENTS, RESULTING IN INCREASING THE
DIFFICULTY OF AN ATTACK UPON THEM.  THE VALIDITY OF NONE OF THE
HUNDREDS OF PATENTS INVOLVED HAS BEEN LITIGATED. 

"THESE PATENTS, THROUGH THE AGREEMENTS IN WHICH THEY ARE ENMESHED AND
THE MANNER IN WHICH THEY HAVE BEEN USED, HAVE, IN FACT, BEEN FORGED
INTO INSTRUMENTS OF DOMINATION OF AN ENTIRE INDUSTRY.  THE NET EFFECT
IS THAT A BUSINESS, ORIGINALLY FOUNDED UPON PATENTS WHICH HAVE LONG
SINCE EXPIRED, IS TODAY LESS ACCESSIBLE TO FREE ENTERPRISE THAN WHEN IT
WAS FIRST LAUNCHED."  ID. AT 532. 

REFERRING TO THE EXCHANGE OF PATENTS BETWEEN NATIONAL LEAD AND DU
PONT, THE DISTRICT COURT ADDED: 

"  ...  IN THE CONTEXT OF THE PRESENT CASE,  ...  THIS EXCHANGE
BETWEEN TWO CORPORATIONS, WHO BETWEEN THEM CONTROLLED THE ENTIRE
MARKET, BECOMES AN INSTRUMENT OF RESTRAINT, AVAILABLE FOR USE AND USED,
TO CONTINUE THE MASTERY OF THE MARKET WHICH NL AND DP ACHIEVED BY MEANS
OF THE ILLEGAL INTERNATIONAL AGREEMENTS."  ID. AT 532. 

THESE FACTS ARE IMPORTANT NOT ONLY IN AFFIRMING, AS WE DO, THE
FINDING THAT NATIONAL LEAD, TITAN INC. AND DU PONT EACH HAS VIOLATED
SEC. 1 OF THE SHERMAN ANTITRUST ACT, BUT ALSO IN PASSING UPON THE TERMS
OF THE DECREE ENTERED IN ORDER TO PREVENT FUTURE VIOLATIONS OF THAT ACT
BY THEM. 

IV.  THE REMAINING ISSUES RELATE TO THE TERMS OF THE DECREE.  THE
ENTIRE DECREE, EXCLUSIVE OF ITS APPENDIX, IS REPORTED AT 63 F.SUPP. 
532-535, AND, FOR REFERENCE PURPOSES, IS HERE REPRINTED IN THE MARGIN,
AS THERE REPORTED.  FN4 

THIS DECREE REPRESENTS A CAREFUL ATTEMPT TO FIT THE REMEDY TO THE
NEEDS OF THIS CASE.  THE RECORD UPON WHICH IT IS BASED CONSISTS OF TWO
LARGE VOLUMES OF TESTIMONY AND FOUR LARGER VOLUMES OF EXHIBITS,
REPRESENTING A TOTAL OF OVER 5,500 PAGES, REFLECTING MORE THAN THREE
MONTHS OF TRIAL.  IT DEMONSTRATES A COMMENDABLE PROCEDURE.  PROPOSED
FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE SUBMITTED ON BEHALF OF THE
RESPECTIVE PARTIES AND A FORM OF DECREE WAS SUBMITTED ON BEHALF OF THE
GOVERNMENT TO THE DISTRICT COURT IMMEDIATELY FOLLOWING THE TRIAL.  THE
OPINION OF THE DISTRICT COURT, WHEN FILED, FORMED THE BASIS OF FURTHER
CONSULTATION AND ARGUMENT.  AFTER THE DISTRICT COURT'S FINDINGS OF FACT
AND CONCLUSIONS OF LAW WERE ENTERED, FURTHER CONFERENCES WERE HELD WITH
COUNSEL AND FULL OPPORTUNITY WAS GIVEN TO THEM TO PROPOSE CHANGES IN
THE FINDINGS OF FACT AND THE DECREE.  MUCH OF THIS DISCUSSION WAS
REPORTED IN THE RECORD AND HAS BEEN OF BENEFIT TO THIS COURT IN
REVIEWING THE DECREE. 

IN OUR OPINION, THE PROVISIONS OF THIS DECREE, TO A LARGE EXTENT, ARE
MATTERS LYING WITHIN THE DISCRETION OF THE DISTRICT COURT AS A COURT OF
EQUITY WHOSE DUTY IT WAS TO MAKE THE REMEDY AS EFFECTIVE AS POSSIBLE. 
THE DISTRICT COURT WAS CONFRONTED WITH AN OBLIGATION TO GIVE EFFECT TO
THE PROVISIONS, ON THE ONE HAND, OF THE PATENT LAWS GRANTING CERTAIN
VALUABLE RIGHTS IN THE NATURE OF MONOPOLIES TO THE PATENTEES AND THEIR
LICENSEES, AND ALSO TO GIVE EFFECT, ON THE OTHER HAND, TO THE
PROVISIONS OF THE SHERMAN ANTITRUST ACT PROHIBITING ANY COMBINATION OR
CONSPIRACY IN RESTRAINT OF TRADE AMONG THE SEVERAL STATES OR WITH
FOREIGN NATIONS.  WE BELIEVE THAT THE DISTRICT COURT HAS NOT EXCEEDED
ITS DISCRETION IN THE PROVISIONS OF THIS DECREE BUT HAS EMPLOYED ITS
DISCRETION WITH COMMENDABLE FAIRNESS HAVING ESPECIAL REGARD TO THE
NEEDS OF THIS CASE.  IT HAS SUCCEEDED IN KEEPING WITHIN THE LINES OF
PRECEDENT THUS FAR ESTABLISHED, ALTHOUGH, IN THIS FIELD, SUCH LINES
CANNOT BE MUCH MORE THAN GUIDES.  THE ESSENTIAL CONSIDERATION IS THAT
THE REMEDY SHALL BE AS EFFECTIVE AND FAIR AS POSSIBLE IN PREVENTING
CONTINUED OR FUTURE VIOLATIONS OF THE ANTITRUST ACT IN THE LIGHT OF THE
FACTS OF THE PARTICULAR CASE. 

THE ISSUES ARE PRESENTED BY THE ASSIGNMENTS OF ERROR IN THE THREE
APPEALS.  THEY WILL BE CONSIDERED SEPARATELY IN CONJUNCTION WITH THEIR
SUPPORTING ARGUMENTS.  IN EACH INSTANCE WE SUSTAIN THE PRESENT DECREE. 

A. REQUEST TO OMIT THE REQUIREMENT OF THE GRANTING OF COMPULSORY,
NONEXCLUSIVE LICENSES AT UNIFORM, REASONABLE ROYALTIES AND TO
SUBSTITUTE FOR THAT REQUIREMENT, EITHER A PERPETUAL INJUNCTION AGAINST
THE ENFORCEMENT OF THE TITANIUM PATENTS PRESENTLY OWNED OR CONTROLLED
BY THE RESPECTIVE APPELLANT COMPANIES, OR A PROVISION FOR COMPULSORY
LICENSES TO BE ISSUED UNDER THOSE PATENTS, FREE OF ROYALTIES. 

THIS IS THE MAJOR LEGAL ISSUE IN THIS CASE. 

THE MATERIAL PROVISIONS IN THE PRESENT DECREE ARE AS FOLLOWS: 

"4.  THE TERM 'PATENTS AS HEREIN DEFINED' SHALL MEAN UNITED STATES
LETTERS PATENT AND APPLICATIONS AS FOLLOWS:  (A) THE LETTERS PATENT AND
PATENT APPLICATIONS LISTED IN APPENDIX A HEREOF; (B) ALL DIVISIONS,
CONTINUATIONS OR REISSUES OF ANY OF THE FOREGOING PATENTS AND
APPLICATIONS; (C) ALL PATENTS ISSUED UPON SUCH APPLICATIONS; (D) ALL
PATENTS WHICH COVER ANY TITANIUM PIGMENTS OR ANY PROCESS FOR THE
MANUFACTURE OF TITANIUM PIGMENTS ISSUED TO ANY OF THE DEFENDANTS WITHIN
FIVE YEARS FROM THE DATE OF THIS DECREE; AND ALL SUCH PATENTS WHICH ANY
OF THE DEFENDANTS ACQUIRES WITHIN SUCH FIVE YEARS; AND ALL SUCH PATENTS
OF WHICH ANY OF THE DEFENDANTS BECOMES THE EXCLUSIVE LICENSEE WITHIN
SUCH FIVE YEARS WITH POWER TO SUBLICENSE. 

     .         .         .    .         . 

"7.  EACH OF THE DEFENDANTS IS ORDERED TO GRANT TO ANY APPLICANT
THEREFOR, INCLUDING ANY DEFENDANT OR CO-CONSPIRATOR, A NONEXCLUSIVE
LICENSE UNDER ANY OR ALL OF THE PATENTS AS HEREIN DEFINED AT A UNIFORM,
REASONABLE ROYALTY.  SUCH GRANT MAY, AT THE OPTION OF THE LICENSOR, BE
CONDITIONED UPON THE RECIPROCAL GRANT OF A LICENSE BY THE APPLICANT, AT
A REASONABLE ROYALTY, UNDER ANY AND ALL PATENTS COVERING TITANIUM
PIGMENTS OR THEIR MANUFACTURE, NOW ISSUED OR PENDING, OR ISSUED WITHIN
FIVE YEARS FROM THE DATE OF THIS DECREE, IF ANY, OWNED OR CONTROLLED BY
SUCH APPLICANT.  SUCH LICENSE OR RECIPROCAL LICENSE MAY, AT THE OPTION
OF EITHER PARTY, CONTAIN A PROVISION FOR THE INSPECTION OF THE BOOKS
AND RECORDS OF THE LICENSEE BY AN INDEPENDENT AUDITOR WHO SHALL REPORT
TO THE LICENSOR ONLY THE AMOUNT OF ROYALTY DUE AND PAYABLE AND NO OTHER
INFORMATION.  DURING A PERIOD OF THREE YEARS FROM THE DATE OF THIS
DECREE SUCH LICENSE OR RECIPROCAL LICENSE MAY AT THE OPTION OF EITHER
PARTY CONTAIN A PROVISION FOR THE IMPARTING IN WRITING, AT A REASONABLE
CHARGE, BY THE LICENSOR TO THE LICENSEE, OF THE METHODS AND PROCESSES
USED BY THE FORMER AT THE DATE OF THE LICENSE IN ITS COMMERCIAL
PRACTICE UNDER THE LICENSED PATENTS IN CONNECTION WITH THE PRODUCTION
OF TITANIUM PIGMENTS.  THE COURT RESERVES JURISDICTION TO PASS UPON THE
REASONABLENESS OF ANY ROYALTY OR CHARGE HEREIN DIRECTED TO BE
REASONABLE.  DEFENDANTS ARE RESTRAINED FROM ATTEMPTING TO ENFORCE ANY
RIGHTS UNDER ANY FOREIGN PATENTS OWNED BY THEM OR UNDER WHICH THEY ARE
THE EXCLUSIVE LICENSEES TO PREVENT THE EXPORTATION OF TITANIUM PIGMENTS
FROM THE UNITED STATES TO ANY FOREIGN COUNTRY." 

THE ASSIGNMENT OF ERROR ORIGINALLY MADE BY THE GOVERNMENT, IN NO. 89,
AS TO THIS POINT WAS AS FOLLOWS: 

"1.  THE COURT ERRED IN FAILING TO REQUIRE EACH DEFENDANT TO LICENSE
ITS EXISTING TITANIUM PIGMENT PATENTS FREE OF ROYALTY UNTIL THE COURT
SHALL HAVE DETERMINED, ON APPLICATION BY ANY DEFENDANT, THAT THE
EFFECTS OF THE DEFENDANTS' ILLEGAL COMBINATION, AS SET FORTH IN THE
COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW, HAVE BEEN FULLY
DISSIPATED." 

LATER THE GOVERNMENT MOVED TO AMEND THIS ASSIGNMENT OF ERROR SO THAT
IT WOULD READ AS FOLLOWS: 

"THE COURT ERRED IN FAILING TO ENTER AN INJUNCTION PERPETUALLY
ENJOINING THE DEFENDANTS FROM ENFORCING THE TITANIUM PATENTS PRESENTLY
OWNED OR CONTROLLED BY THEM." 

THIS COURT POSTPONED CONSIDERATION OF THE ABOVE MOTION TO THE HEARING
OF THE CASE ON ITS MERITS.  ON ORAL ARGUMENT, THE GOVERNMENT SUPPORTED
ITS SECOND PROPOSAL BUT INDICATED THAT, IF THAT PROPOSAL WERE NOT
SATISFACTORY, IT WOULD PREFER ITS ORIGINAL REQUEST TO THE PROVISION FOR
UNIFORM, REASONABLE ROYALTIES NOW IN THE DECREE.  THE GOVERNMENT'S
MOTION TO AMEND ITS ASSIGNMENT OF ERRORS ACCORDINGLY IS GRANTED. 
NATIONAL LEAD, IN ITS ASSIGNMENTS OF ERROR IN NO. 90, HOWEVER, ASSIGNS
THE ORDERS CONTAINED IN PARAGRAPH 7 OF THE DECREE ON THIS SUBJECT AS
ERROR AND, IN ITS BRIEFS, ARGUES THAT "THE COURT ERRED IN REFUSING TO
ORDER ROYALTY-FREE LICENSING OF ALL PATENTS AS DEFINED IN THE
JUDGMENT."  ACCORDINGLY, BOTH PROPOSALS HAVE BEEN CONSIDERED. 

WHILE IT HAS BEEN CONTENDED THAT, BECAUSE OF THE DECISION OF THIS
COURT IN HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, THE
DISTRICT COURT WAS NOT FREE IN THE PRESENT CASE TO REQUIRE THE ISSUANCE
OF ROYALTY-FREE LICENSES, WE FEEL THAT, WITHOUT REACHING THE QUESTION
WHETHER ROYALTY-FREE LICENSING OR A PERPETUAL INJUNCTION AGAINST THE
ENFORCEMENT OF A PATENT IS PERMISSIBLE AS A MATTER OF LAW IN ANY CASE,
THE PRESENT DECREE REPRESENTS AN EXERCISE OF SOUND JUDICIAL
DISCRETION. 

THIS IS A CIVIL, NOT A CRIMINAL, PROCEEDING.  THE PURPOSE OF THE
DECREE, THEREFORE, IS EFFECTIVE AND FAIR ENFORCEMENT, NOT PUNISHMENT. 
AN UNDERSTANDING OF THE FINDINGS OF FACT IS ESSENTIAL TO AN
APPRECIATION OF THE REASONS FOR THE DECREE. 

PURE TITANIUM PIGMENT AND ITS COMPOUNDS REPRESENT A PRODUCT OF
COMPARATIVELY RECENT DEVELOPMENT BUT OF MAJOR COMMERCIAL VALUE.  THE
DISTRICT COURT FOUND THAT - 

"TITANIUM PIGMENTS ARE POSSESSED OF GREAT OPACITY, HIDING POWER AND
CHEMICAL INERTNESS, AND ARE LARGELY DISPLACING OTHER PIGMENTS SUCH AS
LITHOPONE AND WHITE LEAD.  TITANIUM PIGMENTS ARE USED IN THE
MANUFACTURE OF PAINTS AND ARE ALSO USED IN THE MANUFACTURE OF RUBBER,
GLASS, PAPER, VITREOUS ENAMELS, AND MANY OTHER PRODUCTS.  ... 

"IN AND BEFORE 1920 THERE WAS NO SUBSTANTIAL TRADE OR COMMERCE IN,
AND NO COMMERCIAL MANUFACTURE OF, TITANIUM PIGMENTS FOR USE IN PAINT,
PAPER, RUBBER, OR OTHER PRODUCTS; ...  "  FINDING OF FACT 33. 

"THE PRODUCTION OF TITANIUM PIGMENTS IN THE UNITED STATES HAD RISEN
FROM 100 TONS (ON THE BASIS OF PURE TIO2 CONTENT) IN 1920 TO
APPROXIMATELY 110,000 TONS IN 1943 WITH A PEAK PRODUCTION OF
APPROXIMATELY 128,000 TONS IN THE UNITED STATES IN 1941.  THE TOTAL
PRODUCTION OF TITANIUM PIGMENTS AND COMPOUNDS OUTSIDE OF THE UNITED
STATES HAS SHOWN LESS GROWTH, THE ESTIMATED FOREIGN PRODUCTION OF
TITANIUM PIGMENTS AND COMPOUNDS BEING APPROXIMATELY 1,000 TONS IN 1920
AND APPROXIMATELY 23,000 TONS IN 1938."  FINDING OF FACT 35. 

THERE ARE FOUR PRODUCERS OF TITANIUM PRODUCTS IN THE UNITED STATES -
NATIONAL LEAD, DU PONT, AMERICAN ZIRCONIUM (HERE CALLED ZIRCONIUM),
WHICH IS A SUBSIDIARY OF GLIDDEN COMPANY, AND VIRGINIA CHEMICAL COMPANY
(HERE CALLED VIRGINIA CHEMICAL), WHICH IS A SUBSIDIARY OF AMERICAN
CYANAMID COMPANY.  NATIONAL LEAD AND DU PONT HAVE CROSS-LICENSED EACH
OTHER UNDER THEIR RESPECTIVE PATENTS.  ZIRCONIUM ENTERED THE FIELD IN
1935 WITH LICENSES FROM NATIONAL LEAD AND DU PONT, BUT THE NATIONAL
LEAD LICENSE HAS BEEN CANCELED.  VIRGINIA CHEMICAL ENTERED THE FIELD IN
1937 WITH A LICENSE FROM DU PONT.  FINDING OF FACT 42. 

NATIONAL LEAD HAS ASSETS OF OVER $100,000,000 AND IS THE LARGEST
MANUFACTURER OF TITANIUM PIGMENTS AND COMPOUNDS NOT ONLY IN THE UNITED
STATES BUT IN THE WORLD.  IN 1943 IT MANUFACTURED AND SOLD 76.5% OF THE
COMPOSITE PIGMENTS AND 46.4% OF PURE TIO2 MADE IN THE UNITED STATES. 
FINDING OF FACT 3.  DU PONT IS ONE OF THE LARGEST CHEMICAL COMPANIES IN
THE UNITED STATES WITH ASSETS OF OVER $1,000,000,000.  IT IS ONE OF THE
LARGEST MANUFACTURERS OF TITANIUM PIGMENTS IN THE UNITED STATES.  IN
1943 IT MANUFACTURED AND SOLD APPROXIMATELY 23.5% OF THE COMPOSITE
PIGMENTS AND 45.1% OF PURE TIO2 MADE IN THE UNITED STATES.  FINDING OF
FACT 9. 

NATIONAL LEAD TOOK AN EARLY LEAD IN PROMOTING THE COMMERCIAL
MANUFACTURE AND USE OF TITANIUM PIGMENTS.  IN 1920 IT ACQUIRED AN
INTEREST IN THE TITANIUM PIGMENT COMPANY, INC., WHICH HAD BEEN
ORGANIZED BY THE TITANIUM ALLOY MANUFACTURING COMPANY AT NIAGARA FALLS,
NEW YORK.  IT MADE USE OF A PATENTED PROCESS DEVELOPED BY BARTON AND
ROSSI.  AT ABOUT THAT TIME, A NORWEGIAN CHEMIST, GUSTAV JEBSEN, MADE
SIMILAR INVESTIGATIONS BUT ALONG DIFFERENT LINES IN NORWAY.  HE AND HIS
ASSOCIATES PERFECTED A PATENTED MEANS FOR PRODUCING RELATIVELY PURE
TITANIUM DIOXIDE BY A PROCESS MUCH LESS COSTLY THAN THAT IN USE AT
NIAGARA FALLS.  THESE ASSOCIATES HAD NOT, HOWEVER, PERFECTED PROCESSES
FOR THE MANUFACTURE OF COMPOSITE PIGMENTS.  FINDING OF FACT 33.  IN
ABOUT 1922, JOSEPH BLUMENFELD, A CHEMIST AND MANAGING DIRECTOR OF A
FRENCH COMPANY, OBTAINED PATENTS RELATING TO THE MANUFACTURE OF
TITANIUM COMPOUNDS.  FINDING OF FACT 34. 

ON JULY 30, 1920, THE TITANIUM PIGMENT COMPANY, INC., (AFFILIATED
WITH NATIONAL LEAD) AND TITAN CO. A/S (REPRESENTING THE JEBSEN
INTERESTS) ENTERED INTO AN AGREEMENT WHICH IS STILL UNCANCELED.  ITS
PRINCIPLES BECAME THE BASIS FOR MORE THAN 60 SUBSEQUENT AGREEMENTS AND
FOR AN INTERNATIONAL CARTEL  FN5  IN TITANIUM PIGMENTS.  THE ESSENTIAL
FEATURES OF THIS AGREEMENT ARE STATED IN FINDING OF FACT 44 AND IN THE
OPINION OF THE DISTRICT COURT, 63 F.SUPP.  AT 517-518. 

BRIEFLY STATED, IT APPLIED TO A LICENSED FIELD, DEFINED AS INCLUDING
ALL SUBSTANCES CONTAINING ABOVE 2% OF TITANIUM UNLESS CONTAINING BY
WEIGHT MORE THAN 5% OF A METAL OTHER THAN TITANIUM IN ITS PURELY
METALLIC FORM.  IT APPLIED TO ALL APPARATUS, METHODS AND PROCESSES
USEFUL IN OBTAINING OR MANUFACTURING SUCH SUBSTANCES BOTH IN THE
TITANIUM AND IN THE TITANIUM COMPOUND FIELD. 

BOTH PARTIES AGREED TO GRANT AND ACCEPT A LICENSE, EXCLUSIVE OF ALL
OTHERS INCLUDING THE LICENSOR, UNDER ALL "EXISTING OR FUTURE" PATENTS
OF THE LICENSING PARTY.  THEY DIVIDED THE GLOBE TERRITORIALLY.  THE
AMERICAN COMPANY WAS TO HAVE THE NORTH AMERICAN CONTINENT.  THE
NORWEGIAN COMPANY WAS TO HAVE THE REST OF THE WORLD, EXCEPT THAT
RECIPROCAL, NONEXCLUSIVE RIGHTS OF SALE WERE RESERVED FOR BOTH
COMPANIES IN SOUTH AMERICA. 

DETAILED PROVISION WAS MADE FOR EXCHANGE OF COPIES OF APPLICATIONS
FOR PATENTS FILED BY THE PARTIES OR THEIR OTHER LICENSEES.  NEITHER
PARTY WAS EVER TO QUESTION OR CONTEST THE VALIDITY OF ANY PATENT OF THE
OTHER UNDER WHICH IT WAS LICENSED WITHIN THE FIELD DESCRIBED. 

THE AMERICAN COMPANY BECAME THE EXCLUSIVE AGENT FOR THE NORWEGIAN
COMPANY IN NORTH AMERICA AND VICE VERSA OUTSIDE OF NORTH AND SOUTH
AMERICA.  SALES WERE TO BE AT PRICES AND ON TERMS DETERMINED BY THE
AGENT.  NOTWITHSTANDING THESE AGENCIES, HOWEVER, IMPORTATIONS OF
"FINISHED ARTICLES" - THAT IS, PAINT, PAPER, RUBBER, GLASS, ETC. -
CONTAINING TITANIUM PRODUCTS OF THE PRINCIPAL, ITS LICENSEES OR
SUBLICENSEES, WOULD BE PERMITTED PROVIDED SUCH PRODUCTS DID NOT
CONSTITUTE SUCH AN IMPORTANT PART OF SUCH FINISHED ARTICLES THAT SALES
WITHIN THE AGENT'S TERRITORY WOULD INTERFERE SUBSTANTIALLY WITH THE
AGENT'S SALES OF ITS OWN TITANIUM PRODUCTS. 

EACH PARTY WOULD IMPART SEMIANNUALLY TO THE OTHER INFORMATION IN
DETAIL AS TO KNOWLEDGE OBTAINED IN AND APPLICABLE TO THE "LICENSED
FIELD," AND WOULD PERMIT THE OTHER TO INSPECT AND STUDY OPERATIONS IN
ITS PLANTS (EXCLUSIVE OF RESEARCH LABORATORIES).  THE RECIPROCAL GRANTS
OF EXCLUSIVE LICENSES WOULD EXTEND TO DECEMBER 31, 1936, AND THEREAFTER
FOR PERIODS OF TEN YEARS EACH, WITH PROVISION FOR TERMINATION BY NOTICE
TO BE GIVEN AT LEAST FIVE YEARS BEFORE THE END OF ANY SUCH PERIOD.  IN
PARTICULAR, SO LONG AS EACH COMPANY HELD AN EXCLUSIVE LICENSE FROM THE
OTHER UNDER THIS AGREEMENT, IT WOULD HAVE THE RIGHT TO GRANT LICENSES
UNDER ITS OWN PATENTS, AND SUBLICENSES UNDER THE OTHER'S PATENTS, ON
THE CONDITION, NEVERTHELESS, THAT EVERY SUCH LICENSEE OR SUBLICENSEE
WOULD GRANT TO THE PARTY TO THE 1920 AGREEMENT (OTHER THAN ITS
LICENSOR), ITS PATENT RIGHTS IN THE "LICENSED FIELD" IDENTICAL IN
CHARACTER, TERRITORIAL SCOPE, AND DURATION TO THOSE GIVEN BY ITS
LICENSOR TO SUCH OTHER PARTY UNDER THE 1920 AGREEMENT, AND WOULD IMPART
TECHNICAL INFORMATION TO SUCH OTHER PARTY IN THE SAME MANNER AND TO THE
SAME EXTENT AS ITS LICENSOR. 

IN 1929, THE OBLIGATIONS OF TITAN CO. A/S UNDER THIS AGREEMENT WERE
ASSUMED BY TITAN INC. AND, IN 1936, THE OBLIGATIONS OF THE TITANIUM
PIGMENT COMPANY, INC., WERE ASSUMED BY NATIONAL LEAD. 

OTHER COMPANIES THROUGHOUT THE WORLD JOINED IN CARRYING OUT THIS
PROGRAM TO RESTRAIN INTERNATIONAL COMMERCE AND TO ESTABLISH AN
INTERNATIONAL COMBINATION OR CONSPIRACY IN RESTRAINT OF TRADE.  THE
COMPLAINT IN THE PRESENT CASE LISTS MANY OF THESE FOREIGN COMPANIES AS
COCONSPIRATORS WITH NATIONAL LEAD, TITAN INC. AND DU PONT, BUT IT DOES
NOT ATTEMPT TO MAKE SUCH CO-CONSPIRATORS PARTIES DEFENDANT.  THE
DISTRICT COURT RECOGNIZED THAT IT DID NOT HAVE JURISDICTION OVER SUCH
CO-CONSPIRATORS AND FOUND IN THAT CIRCUMSTANCE ONE OF ITS DIFFICULTIES
IN EFFECTIVELY RESTRAINING NATIONAL LEAD, TITAN INC. AND DU PONT FROM
FURTHER VIOLATIONS OF THE SHERMAN ANTITRUST ACT, PURSUANT TO THIS
INTERNATIONAL AS WELL AS DOMESTIC PROGRAM.  TO ACCOMPLISH THIS PURPOSE,
THE DISTRICT COURT HAS ADJUDGED THESE AGREEMENTS TO BE UNLAWFUL AND IT
HAS CANCELED THEM.  IN ADDITION, IT HAS ENJOINED ALL THREE DEFENDANTS,
NATIONAL LEAD, TITAN INC. AND DU PONT, FROM FURTHER PERFORMANCE OF ANY
OF THE PROVISIONS OF SUCH AGREEMENTS AND OF ANY AGREEMENTS AMENDATORY
THEREOF OR SUPPLEMENTAL THERETO.  PARS. 5 AND 6 OF THE DECREE, 63
F.SUPP.  AT 533-534. 

NATIONAL LEAD ACQUIRED AN 87% INTEREST IN TITAN CO. A/S, JEBSEN
RETAINING 13%.  THE DISTRICT COURT FOUND THAT "THE INTENDED PURPOSE OF
THE ACQUISITION OF CONTROL OF TAS BY NL WAS TO UTILIZE TAS AND THE
CONTRACT OF 1920 TO FURTHER CONTROL COMPETITION IN THE MANUFACTURE OF
TITANIUM PIGMENTS AND COMPOUNDS IN ALL MARKETS OF THE WORLD INCLUDING
THE UNITED STATES."  FINDING OF FACT 47.  FN6  WHILE THIS COMBINATION
AND CONSPIRACY IN RESTRAINT OF INTERSTATE AND FOREIGN COMMERCE THUS WAS
DEVELOPING FROM 1920 TO 1931, WITH NATIONAL LEAD AND TITAN INC. AT ITS
CENTER, DU PONT WAS UNCONNECTED WITH IT.  DU PONT HAD INITIATED
INDEPENDENT, BUT UNSUCCESSFUL, EFFORTS TO DEVELOP, THROUGH RESEARCH, A
NEW AND PATENTABLE COMMERCIALLY FEASIBLE PROCESS IN THIS FIELD.  IT
BECAME CONVINCED THAT IF IT WERE TO UNDERTAKE THE MANUFACTURE AND SALE
OF TITANIUM PIGMENTS AS A DEVELOPMENT OF ITS WHITE PIGMENT BUSINESS, IT
WOULD BE NECESSARY TO ENTER THE FIELD AS PROMPTLY AS POSSIBLE THROUGH
THE ACQUISITION OF THE PATENTS AND OF THE GOING BUSINESS OF COMMERCIAL
PIGMENTS COMPANY.  THAT COMPANY HAD BEEN FORMED BY COMMERCIAL SOLVENTS
CORPORATION IN 1928 AND HAD ACQUIRED THE BLUMENFELD AND OTHER PATENTS
IN THE UNITED STATES RELATING TO THE MANUFACTURE AND SALE OF TITANIUM
PIGMENTS AND COMPOUNDS.  IT WAS OPERATING A PLANT IN BALTIMORE,
MARYLAND, WHERE IT MANUFACTURED PURE TIO2 PIGMENT ONLY AND SOLD IT IN
COMPETITION WITH THE THE TITANIUM PIGMENT COMPANY, INC. (THE AFFILIATE
OF NATIONAL LEAD).  IN JULY, 1931, DU PONT, THROUGH ITS SUBSIDIARY,
KREBS PIGMENT & COLOR CORPORATION, ACQUIRED ALL OF THE ASSETS AND
ASSUMED SOME OF THE OBLIGATIONS OF COMMERCIAL PIGMENTS COMPANY.  IT
THUS CONTINUED AND, IN FACT, INCREASED ITS COMPETITION IN THE TITANIUM
PIGMENT FIELD AGAINST NATIONAL LEAD.  FINDINGS OF FACT 70, 12, 10 AND
71. 

"BOTH NL AND DP IN GOOD FAITH CLAIMED THAT EACH INFRINGED CERTAIN OF
THE OTHER'S TITANIUM PIGMENT PATENTS AND BOTH IN GOOD FAITH DENIED SUCH
INFRINGEMENT CLAIMING, AMONG OTHER THINGS, THAT THE PATENTS ALLEGED TO
BE INFRINGED WERE OF DOUBTFUL VALIDITY.  NL AND DP AGREED IN OCTOBER,
1932, THAT THE VALIDITY OF THE PATENTS CLAIMED TO BE INFRINGED SHOULD
NOT BE QUESTIONED EXCEPT AS A LAST RESORT AND THAT THEY SHOULD TRY TO
ARRIVE AT A GENERAL UNDERSTANDING."  FINDING OF FACT 72. 

FINALLY, IN 1933, THE TITANIUM PIGMENT COMPANY, INC. (BY THAT TIME A
100% SUBSIDIARY OF NATIONAL LEAD), AND KREBS PIGMENT & COLOR
CORPORATION (SUBSIDIARY OF DU PONT) WERE THE ONLY PRODUCERS OF TITANIUM
PIGMENTS IN THE UNITED STATES.  THE 1920 AGREEMENT, HOWEVER, PREVENTED
THE TITANIUM PIGMENT COMPANY, INC. (NATIONAL LEAD), FROM ENTERING INTO
A CONTRACT WITH KREBS PIGMENT & COLOR CORPORATION (DU PONT) UNLESS THE
LATTER SUBSCRIBED TO THE PROVISIONS OF THE 1920 AGREEMENT.  SUCH A
SUBSCRIPTION WOULD HAVE REQUIRED AN AGREEMENT BY KREBS (DU PONT) NOT TO
EXPORT INTO THE TERRITORIES OF NATIONAL LEAD'S FOREIGN ASSOCIATES, AND
AN AGREEMENT TO GRANT TO NATIONAL LEAD'S FOREIGN ASSOCIATES EXCLUSIVE
LICENSES UNDER ALL OF KREBS' (DU PONT'S) PRESENT AND FUTURE PATENTS FOR
TITANIUM PIGMENTS AND COMPOUNDS IN THE TERRITORIES OF THE FOREIGN
ASSOCIATES.  FINDING OF FACT 73.  AFTER EXTENSIVE NEGOTIATIONS,
NATIONAL LEAD AND DU PONT FORMULATED AN AGREEMENT IN WRITING, DATED AS
OF JANUARY 1, 1933, WHICH WAS EXECUTED AUGUST 28, 1933.  IT IS
SUMMARIZED IN FINDING OF FACT 73 AND IN THE OPINION OF THE LOWER COURT,
63 F.SUPP.  AT 520-521.  BY ITS TERMS, IT PROVIDED FOR CROSS-LICENSING
BUT DID NOT PROVIDE FOR THE EXCLUSIVE LICENSING AND RESTRICTIVE
TERRITORIAL AND AGENCY AGREEMENTS SPECIFIED IN THE 1920 PROGRAM. 
CERTAIN FOREIGN ASSOCIATES OF NATIONAL LEAD, PARTICULARLY
INTERESSENGEMEINSCHAFT FARBEN-INDUSTRIE AKTIENGESELLSCHAFT (USUALLY
REFERRED TO AS I.G. FARBENINDUSTRIE), INSISTED UPON SOME SUCH
COMMITMENT FROM DU PONT OR ITS SUBSIDIARY.  THIS INSISTENCE NEVER WAS
ABANDONED.  AFTER FURTHER NEGOTIATIONS AND AN EXCHANGE OF LETTERS, ALL
AS SET FORTH IN FULL IN FINDING OF FACT 73 AND IN THE OPINION OF THE
DISTRICT COURT, 63 F.SUPP.  AT 528-529, SOME UNDERSTANDING WAS REACHED
AS TO THE FUTURE CONDUCT OF DU PONT, OR OF ITS SUBSIDIARY.  ON THE
STRENGTH OF THIS, I.G. FARBENINDUSTRIE AGREED TO THE SITUATION.  ON THE
BASIS OF ALL THE EVIDENCE, THE DISTRICT COURT FOUND THAT - 

"DP, THROUGH RUPPRECHT (PRESIDENT OF KREBS PIGMENT & COLOR
CORPORATION) AND KREBS (THE CORPORATION), BY THESE ASSURANCES AND
EXHIBIT E (THE AGREEMENT DATED AS OF JANUARY 1, 1933), JOINED THE
CONSPIRACY FOUND HEREIN TO EXIST BETWEEN, NL AND ITS FOREIGN
ASSOCIATES.  DP'S STATUS RIGHTS AND OBLIGATIONS WERE DIFFERENT FROM
THOSE OF THE OTHER MEMBERS OF THE COMBINATION.  DP DID NOT THEREAFTER
WITHDRAW."  FINDING OF FACT 73. 

THAT FINDING, WHICH WE ACCEPT, THROWS IMPORTANT LIGHT UPON THE
CONDITIONS TO WHICH THE DECREE IS TO BE APPLIED.  FURTHERMORE, ALTHOUGH
NATIONAL LEAD AND DU PONT EXCHANGED TECHNICAL INFORMATION RELATING TO
THE MANUFACTURING OR USE OF TITANIUM PIGMENTS OR COMPOUNDS FROM ABOUT
APRIL, 1932, UNTIL APRIL, 1940, THIS EXCHANGE WAS DISCONTINUED MAY 1,
1940.  THE AGREEMENT OF 1933 BETWEEN THE TITANIUM PIGMENT COMPANY,
INC., AND KREBS PIGMENT & COLOR CORPORATION WHICH THEN HAD BEEN ASSUMED
BY NATIONAL LEAD AND DU PONT, RESPECTIVELY, WAS AMENDED ON JANUARY 1,
1941, TO ELIMINATE PROVISIONS FOR THE EXCHANGE OF TECHNICAL
INFORMATION.  FINDING OF FACT 75.  IT WAS FURTHER AMENDED TO INCLUDE
EXTENDER PIGMENTS, WHICH THERETOFORE HAD BEEN INCLUDED BY IMPLICATION
AND PRACTICE.  FINDING OF FACT 76.  AFTER JANUARY 1, 1941, PATENT
APPLICATIONS WERE TO BE AVAILABLE BETWEEN NATIONAL LEAD AND DU PONT
ONLY AFTER SIX MONTHS FROM THE DATE OF THEIR FILING, INSTEAD OF
IMMEDIATELY.  FINDING OF FACT 77. 

"FROM 1933 ON THERE WAS ACTIVE COMPETITION BETWEEN NL AND DP FOR
CUSTOMERS.  THERE HAS BEEN A VAST INCREASE IN SALES; AND REPEATED
REDUCTIONS IN THE PRICE OF TITANIUM PIGMENTS HAVE TAKEN PLACE AND A
VERY FEW INCREASES.  DP ENTERED THE TITANIUM PIGMENT BUSINESS IN 1931
AND SINCE THAT DATE IT HAS MADE FREQUENT PLANT EXPANSIONS FOR THE
MANUFACTURE OF PURE AND COMPOSITE TIO2 AND ITS PRODUCTION INCREASED
FROM 20,027 TONS IN 1935 TO 50,674 TONS IN 1941 AND THEN DECREASED TO
42,843 TONS IN 1943. 

"NL AND DP HAVE ENDEAVORED TO MATCH EACH OTHER'S TITANIUM PRODUCTS;
BUT EACH ALSO MANUFACTURES CERTAIN TITANIUM PIGMENTS HAVING SPECIAL
APPLICATIONS NOT MANUFACTURED BY THE OTHER. 

"THERE IS NO ALLOCATION OF TERRITORY OR CUSTOMERS BETWEEN NL AND DP;
AND EACH MAINTAINS A LARGE, HIGHLY TRAINED TECHNICAL SALES FORCE
ENGAGED IN ENDEAVORING TO SELL TITANIUM PIGMENTS.  TO A VERY LARGE
EXTENT THE SALESMEN OF THE TWO COMPANIES ARE CHEMISTS WHOSE CONTACT
WITH CONSUMERS (THAT IS, MANUFACTURERS OF PAINT, RUBBER, GLASS, ETC.)
CONSISTS IN ENDEAVORING TO DEMONSTRATE THAT THEIR PRODUCTS MERIT
ACCEPTANCE ON THE BASIS OF TECHNICAL SUPERIORITY.  THE BUYERS OF
TITANIUM PIGMENTS ARE MAINLY WELL-INFORMED, EXPERIENCED PURCHASING
AGENTS.  NL AND DP SELL FOR IDENTICAL PRICES; THERE IS NO EVIDENCE THAT
SUCH PRICE IDENTITY IS THE PRODUCT OF AGREEMENT OR COLLUSION."  FINDING
OF FACT 78. 

THESE FINDINGS DISCLOSE THE SPECIAL CONDITIONS WHICH CONFRONTED THE
DISTRICT COURT IN FRAMING ITS DECREE.  THEY DISCLOSE A VIGOROUS,
COMPARATIVELY YOUNG, BUT COMPARATIVELY LARGE, WORLD-WIDE INDUSTRY IN
WHICH TWO GREAT COMPANIES, NATIONAL LEAD AND DU PONT, NOW CONTROL
APPROXIMATELY 90% OF THE DOMESTIC PRODUCTION IN SUBSTANTIALLY EQUAL
SHARES.  THE BALANCE OF THAT PRODUCTION IS IN THE HANDS OF TWO SMALLER
COMPANIES.  EACH OF THESE IS AFFILIATED WITH LARGER ORGANIZATIONS, NOT
PARTIES TO THIS CASE.  THE FINDINGS SHOW VIGOROUS AND APPARENTLY
PROFITABLE COMPETITION ON THE PART OF EACH OF THE FOUR PRODUCERS,
INCLUDING AN INTIMATION THAT THE SMALLER COMPANIES ARE GAINING GROUND
RATHER THAN LOSING IT.  KEEN COMPETITION HAS EXISTED BOTH BEFORE AND
AFTER THE ELIMINATION, BY THE 1933 AGREEMENT AND UNDERSTANDING, OF
CERTAIN PATENT ADVANTAGES FROM AMONG THE WEAPONS OF COMPETITION.  THE
COMPETITION BETWEEN NATIONAL LEAD AND DU PONT HAS BEEN CARRIED INTO
THIS COURT WHERE TODAY NATIONAL LEAD SUPPORTS THE GOVERNMENT'S PROPOSAL
FOR ROYALTY-FREE LICENSES, WHILE DU PONT ARGUES STRONGLY FOR A COMPLETE
DISMISSAL OF THE PROCEEDINGS AND CONTENDS THAT, IN ANY EVENT, IF THERE
ARE TO BE COMPULSORY LICENSES THEY AT LEAST SHOULD REQUIRE PAYMENT OF
UNIFORM, REASONABLE ROYALTIES AS PROVIDED IN THE PRESENT DECREE. 

ASSUMING, AS IS JUSTIFIED, THAT VIOLATION OF THE SHERMAN ACT IN THIS
CASE HAS CONSISTED PRIMARILY OF THE MISUSE OF PATENT RIGHTS PLACING
RESTRAINT UPON INTERSTATE AND FOREIGN COMMERCE, THAT CONDUCT IS NOT
BEFORE THIS COURT FOR PUNISHMENT.  IT IS BROUGHT BEFORE THIS COURT IN
ORDER TO SECURE AN ORDER FOR ITS IMMEDIATE DISCONTINUANCE AND FOR ITS
FUTURE PREVENTION.  THAT WILL BE ACCOMPLISHED LARGELY THROUGH THE
STRICT PROHIBITION OF FURTHER PERFORMANCE OF THE PROVISIONS OF THE
UNLAWFUL AGREEMENTS.  FURTHER ASSURANCE AGAINST CONTINUED ILLEGAL
RESTRAINTS UPON INTERSTATE AND FOREIGN COMMERCE THROUGH MISUSE OF THESE
PATENT RIGHTS IS PROVIDED THROUGH THE COMPULSORY GRANTING TO ANY
APPLICANT THEREFOR OF LICENSES AT UNIFORM, REASONABLE ROYALTIES UNDER
ANY OR ALL PATENTS DEFINED IN THE DECREE.  SUCH PATENTS INCLUDE NOT
ONLY THE PATENTS AND PATENT APPLICATIONS LISTED IN THE APPENDIX TO THE
DECREE, BUT ALSO, AMONG OTHERS, ALL PATENTS WHICH COVER ANY TITANIUM
PIGMENTS OR ANY PROCESS FOR THE MANUFACTURE OF SUCH PIGMENTS ISSUED TO,
OR ACQUIRED BY, ANY OF THE APPELLANT COMPANIES WITHIN FIVE YEARS FROM
THE DATE OF THE DECREE.  IT APPLIES ALSO TO ALL SUCH PATENTS OF WHICH
ANY OF THE APPELLANT COMPANIES SHALL BECOME THE EXCLUSIVE LICENSEE
WITHIN SUCH FIVE YEARS WITH POWER TO SUBLICENSE. 

ON THE FACTS BEFORE US, NEITHER THE ISSUANCE OF SUCH LICENSES ON A
ROYALTY-FREE BASIS NOR THE ISSUANCE OF A PERMANENT INJUNCTION
PROHIBITING THE PATENTEES AND LICENSEES FROM ENFORCING THOSE PATENTS
HAS BEEN SHOWN TO BE NECESSARY IN ORDER TO ENFORCE EFFECTIVELY THE
ANTITRUST ACT.  WE DO NOT, IN THIS CASE, FACE THE ISSUE OF THE
CONSTITUTIONALITY OF SUCH AN ORDER.  THAT ISSUE WOULD ARISE ONLY IN A
CASE WHERE THE ORDER WOULD BE MORE NECESSARY AND APPROPRIATE TO THE
ENFORCEMENT OF THE ANTITRUST ACT THAN HERE.  IN THE ABSENCE OF A
SHOWING TO THE CONTRARY, IT IS OBVIOUS THAT SOME PATENTS SHOULD ENTITLE
THEIR OWNERS TO RECEIVE HIGHER ROYALTIES THAN OTHERS.  ALSO, IT IS
CLEAR THAT SEVERAL PATENTS, EACH OF EQUAL VALUE, ORDINARILY SHOULD
ENTITLE THEIR OWNERS TO A LARGER TOTAL RETURN IN ROYALTIES THAN WOULD
ONE OF THEM ALONE.  IT FOLLOWS THAT TO REDUCE ALL ROYALTIES
AUTOMATICALLY TO A TOTAL OF ZERO, REGARDLESS OF THEIR NATURE AND
REGARDLESS OF THEIR NUMBER, APPEARS, ON ITS FACE, TO BE INEQUITABLE
WITHOUT SPECIAL PROOF TO SUPPORT SUCH A CONCLUSION.  ON THE OTHER HAND,
IT MAY WELL BE THAT UNIFORM, REASONABLE ROYALTIES COMPUTED ON SOME
PATENTS WILL BE FOUND TO BE BUT NOMINAL IN VALUE.  SUCH ROYALTIES MIGHT
BE SET AT ZERO OR AT A NOMINAL RATE.  THE CONCLUSION, HOWEVER, WOULD
DEPEND ON THE FACTS OF EACH CASE. 

RECOGNIZING THE DIFFICULTY OF COMPUTING A REASONABLE ROYALTY,  FN7
NEVERTHELESS, THAT CONCEPTION IS ONE THAT ALREADY HAS BEEN RECOGNIZED
BOTH BY CONGRESS AND BY THIS COURT.  FN8  THE TERM FREQUENTLY HAS BEEN
EMPLOYED IN SHERMAN ANTITRUST CASE CONSENT DECREES.  FN9  IN THE
PRESENT CASE, THE ROYALTIES CHARGED TO AND PAID BY ZIRCONIUM AND
VIRGINIA CHEMICAL PROVIDE ENOUGH GUIDANCE TO INDICATE THAT THE
REASONABLENESS OF FUTURE ROYALTIES MAY BE DETERMINED IN THIS CASE WITH
LESS DIFFICULTY THAN OFTEN MIGHT CONFRONT A COURT FACED WITH SUCH A
TASK.  CF. SINCLAIR REFINING CO. V. JENKINS PETROLEUM PROCESS CO., 289
U.S. 689, 697-698.  THE GROWING STRENGTH OF THOSE TWO ROYALTY-PAYING
LICENSEES HAS DEMONSTRATED THAT ROYALTY-FREE LICENSES HAVE NOT BEEN
ESSENTIAL TO SUCH PROGRESS EVEN UNDER PAST CONDITIONS.  FINALLY, THE
DISTRICT COURT, UNDER PARAGRAPHS 7 AND 13 OF THE DECREE, WILL RETAIN
SUFFICIENT JURISDICTION TO ENABLE IT TO VACATE OR MODIFY ITS ORDERS
FIXING REASONABLE ROYALTY RATES IF IT FINDS SUCH ACTION TO BE NECESSARY
OR APPROPRIATE.  WE HOLD, THEREFORE, THAT PARAGRAPHS 4 AND 7 OF THE
DECREE SHOULD NOT BE MODIFIED EITHER SO AS TO PROVIDE FOR COMPULSORY
ROYALTY-FREE LICENSES OR SO AS TO ENJOIN THE PATENTEES OR LICENSEES
FROM ENFORCING THE TERMS OF THE PATENTS INVOLVED. 

B. REQUEST TO ADD A PROVISION REQUIRING NATIONAL LEAD AND DU PONT
EACH TO SUBMIT, WITHIN A YEAR, A PLAN FOR THE DIVESTITURE BY IT OF ONE
OF ITS TWO PRINCIPAL TITANIUM PIGMENT PLANTS, TOGETHER WITH THE RELATED
PHYSICAL PROPERTY.  THIS REQUEST IS URGED BY THE GOVERNMENT IN NO. 89. 
IT IS STRONGLY OPPOSED BOTH BY NATIONAL LEAD AND DU PONT.  THE ISSUE
WAS DISCUSSED AT LENGTH BY THE PARTIES AND THE DISTRICT COURT IN THE
REPORTED CONFERENCES AS TO THE FORM OF THE DECREE. 

WE BELIEVE THERE IS NEITHER PRECEDENT NOR GOOD REASON FOR SUCH A
REQUIREMENT.  THE VIOLATION OF THE SHERMAN ACT IS FOUND IN THESE CASES
IN THE PATENT POOLING AND IN THE RELATED AGREEMENTS RESTRAINING
INTERSTATE AND FOREIGN COMMERCE.  THERE IS NEITHER ALLEGATION IN THE
COMPLAINT NOR FINDING OF FACT BY THE DISTRICT COURT THAT THE PHYSICAL
PROPERTIES OF EITHER NATIONAL LEAD OR DU PONT HAVE BEEN ACQUIRED OR
USED IN A MANNER VIOLATIVE OF THE SHERMAN ACT, EXCEPT AS SUCH
ACQUISITION OR USE MAY HAVE BEEN INCIDENTAL OR RELATED TO THE
AGREEMENTS ABOVE MENTIONED.  THE CANCELLATION OF SUCH AGREEMENTS AND
THE INJUNCTION AGAINST THE PERFORMANCE OF THEM BY THE APPELLANT
COMPANIES ELIMINATE THEM.  PARAGRAPH 8 OF THE DECREE GOES FURTHER.  IT
REQUIRES NATIONAL LEAD AND ITS SUBSIDIARY, TITAN INC., TO PRESENT,
WITHIN ONE YEAR, A PLAN FOR DIVESTING THEMSELVES OF THEIR STOCKHOLDINGS
AND OTHER FINANCIAL INTERESTS IN CERTAIN FOREIGN CORPORATIONS, OR FOR
THE PURCHASE OF THE ENTIRE STOCKHOLDINGS AND OTHER FINANCIAL INTERESTS,
DIRECT OR INDIRECT, IN SUCH CORPORATIONS OR ANY OF THEM.  SUCH A PLAN,
WHICH WAS REQUIRED ALSO TO PROVIDE FOR ITS COMPLETION WITHIN TWO YEARS
FROM THE DATE OF THE DECREE, WILL GO AS FAR TOWARD DIVESTITURE AS THE
FINDINGS OF FACT INDICATE SHOULD BE NECESSARY TO MAKE THE DECREE
EFFECTIVE. 

THERE IS NO FINDING OF FACT, AND APPARENTLY NO EVIDENCE, SHOWING THAT
THE RESPECTIVE PRINCIPAL TITANIUM PLANTS OF NATIONAL LEAD OR DU PONT
WERE ACQUIRED IN VIOLATION OF LAW, THAT THEY EVER WERE SEPARATELY OWNED
OR OPERATED, OR THAT THEY ARE ADAPTED TO SUCH OPERATION.  PRESUMABLY,
THE REQUESTED DIVESTITURE WOULD BE FOR THE PURPOSE OF PROVIDING FOUR
INSTEAD OF TWO INDEPENDENT MAJOR COMPETING PLANTS IN THE TITANIUM
PIGMENT INDUSTRY.  HOWEVER, THERE IS NO SHOWING WHETHER OR NOT THE TWO
LICENSEES, ZIRCONIUM (SUBSIDIARY OF GLIDDEN COMPANY) AND VIRGINIA
CHEMICAL (SUBSIDIARY OF AMERICAN CYANAMID COMPANY), MAY NOT BE ABLE TO
DEVELOP, UNDER THE DECREE, EVEN MORE SUBSTANTIAL COMPETITION AGAINST
NATIONAL LEAD AND DU PONT THAN WOULD NEW CONCERNS OPERATING THE
DIVESTED PLANTS.  NO COMPARABLE PRECEDENTS HAVE BEEN PRESENTED. 

THERE IS NO SHOWING THAT FOUR MAJOR COMPETING UNITS WOULD BE
PREFERABLE TO TWO, OR, INCLUDING ZIRCONIUM AND VIRGINIA CHEMICAL, THAT
SIX WOULD BE BETTER THAN FOUR.  LIKEWISE, THERE IS NO SHOWING OF THE
NECESSITY FOR THIS DIVESTITURE OF PLANTS OR OF ITS PRACTICALITY AND
FAIRNESS.  THE FINDINGS OF FACT HAVE SHOWN VIGOROUS AND EFFECTIVE
COMPETITION BETWEEN NATIONAL LEAD AND DU PONT IN THIS FIELD.  THE
GENERAL MANAGER OF THE PIGMENTS DEPARTMENT OF DU PONT CHARACTERIZED THE
COMPETITION WITH ZIRCONIUM AND VIRGINIA CHEMICAL AS "TOUGH" AND THAT
WITH NATIONAL LEAD AS "PLENTY TOUGH."  SUCH COMPETITION SUGGESTS THAT
THE DISTRICT COURT WOULD DO WELL TO REMOVE UNLAWFUL HANDICAPS FROM IT
BUT DEMONSTRATES NO SUFFICIENT BASIS FOR WEAKENING ITS FORCE BY
DIVESTING EACH OF THE TWO LARGEST COMPETITORS OF ONE OF ITS PRINCIPAL
PLANTS.  IT IS NOT FOR THE COURTS TO REALIGN AND REDIRECT EFFECTIVE AND
LAWFUL COMPETITION WHERE IT ALREADY EXISTS AND NEEDS ONLY TO BE
RELEASED FROM RESTRAINTS THAT VIOLATE THE ANTITRUST LAWS.  TO SEPARATE
THE OPERATING UNITS OF GOING CONCERNS WITHOUT MORE SUPPORTING EVIDENCE
THAN HAS BEEN PRESENTED HERE TO ESTABLISH EITHER THE NEED FOR, OR THE
FEASIBILITY OF, SUCH SEPARATION WOULD AMOUNT TO AN ABUSE OF
DISCRETION. 

C. REQUEST TO ADD A PROVISION REQUIRING NATIONAL LEAD AND DU PONT TO
FURNISH TO ANY APPLICANT, AT A REASONABLE CHARGE, DURING A PERIOD OF
THREE YEARS, TECHNICAL INFORMATION DESIRED BY THE APPLICANT RELATING TO
THE METHODS AND PROCESSES FOR MANUFACTURING TITANIUM PIGMENTS.  THIS
WOULD SUPERSEDE THE PROVISION NOW IN THE DECREE WHICH, DURING A PERIOD
OF THREE YEARS, MAKES AVAILABLE TO A LICENSEE CERTAIN INFORMATION IN
WRITING, AT A REASONABLE CHARGE, AS TO THE METHODS AND PROCESSES USED
BY HIS LICENSOR AT THE DATE OF THE LICENSE.  THIS IS URGED BY THE
GOVERNMENT IN NO. 89 AND OPPOSED BY NATIONAL LEAD AND DU PONT.  DU
PONT, IN NO. 91, GOES FURTHER AND URGES THE OMISSION OF ALL
REQUIREMENTS COMPELLING IT TO FURNISH TECHNICAL INFORMATION.    THE
REQUEST BY DU PONT TO ELIMINATE THIS REQUIREMENT ALTOGETHER IS BASED,
IN PART, UPON THE EXPERIENCE OF THE APPELLANT COMPANIES.  DU PONT
EMPHASIZES THE FACT THAT THE TITANIUM PIGMENT INDUSTRY HAS MATURED AND
THAT, SINCE ABOUT MAY 1, 1940, THE EXCHANGE OF TECHNICAL INFORMATION
BETWEEN NATIONAL LEAD AND DU PONT HAS CEASED.  ALSO, THE AGREEMENT
BETWEEN THEM WHICH CALLED FOR THE EXCHANGE OF TECHNICAL INFORMATION WAS
AMENDED JANUARY 1, 1941, TO ELIMINATE THE PROVISIONS REQUIRING SUCH
EXCHANGE.  FINDING OF FACT 75.  DU PONT ARGUES THAT NEITHER ZIRCONIUM,
WHICH ENTERED THE INDUSTRY IN 1934, NOR VIRGINIA CHEMICAL, WHICH
ENTERED THE INDUSTRY IN 1935, EVER EXCHANGED TECHNICAL INFORMATION WITH
DU PONT OR RECEIVED ANY FROM DU PONT.  HOWEVER, FINDING OF FACT 84
SHOWS THAT, AS TO NATIONAL LEAD IN 1935 - 

"  ...  NL AND ZIRCONIUM CROSS LICENSED EACH OTHER UNDER ALL PATENTS
IN THE TITANIUM PIGMENT FIELD, THEN OWNED OR THEREAFTER ACQUIRED, AND
BOTH PARTIES AGREED TO EXCHANGE TECHNICAL INFORMATION AND EXPERIENCE. 
... 

     .         .         .         .     . 

"NL DID RENDER SOME ENGINEERING ASSISTANCE TO ZIRCONIUM IN CONNECTION
WITH THE INSTALLATION AND USE OF ITS PROCESSES AND IMPARTED SOME
TECHNICAL INFORMATION BUT FREQUENTLY IT REFUSED TO CONVEY SUCH
TECHNOLOGY TO ZIRCONIUM ON THE GROUND THAT IT WAS PREVENTED BY OTHER
AGREEMENTS FROM SO DOING. 

     .         .         .         .         . 

"ON OCCASIONS BEFORE 1940 THERE WAS EXCHANGE OF INFORMATION BETWEEN
DP AND NL RELATIVE TO ZIRCONIUM'S PRODUCTION." 

VIRGINIA CHEMICAL WAS NOT LICENSED UNDER NATIONAL LEAD'S PATENTS AND
APPARENTLY DID NOT RECEIVE TECHNICAL INFORMATION FROM NATIONAL LEAD. 

FINDING OF FACT 95, SUBPARAGRAPH 8, CONTAINS A FURTHER MATERIAL
FINDING, ALTHOUGH THIS IS DISPUTED BY DU PONT: 

"THE DEFENDANTS NL AND DP SECURED A MONOPOLY ON TECHNICAL INFORMATION
RELATING TO THE MANUFACTURE AND USE OF TITANIUM PIGMENTS AND CERTAIN
APPARATUS AND EQUIPMENT NECESSARY TO THE MANUFACTURE OF CERTAIN
TITANIUM PIGMENTS TO THE EXCLUSION AND DETRIMENT OF OTHER PRODUCERS NOW
ENGAGED IN THE TITANIUM PIGMENT BUSINESS IN THE UNITED STATES; WHEN NL
AND DP CEASED EXCHANGING TECHNICAL INFORMATION, THE TITANIUM PIGMENT
BUSINESS WAS A MATURE INDUSTRY." 

THE REQUIREMENT FOR THE EXCHANGE OF TECHNICAL KNOWLEDGE UNDER THE
PRESENT DECREE IS MERELY THAT INCLUDED IN PARAGRAPH 7, WHICH IS AS
FOLLOWS: 

"DURING A PERIOD OF THREE YEARS FROM THE DATE OF THIS DECREE SUCH
LICENSE OR RECIPROCAL LICENSE MAY AT THE OPTION OF EITHER PARTY CONTAIN
A PROVISION FOR THE IMPARTING IN WRITING AT A REASONABLE CHARGE, BY THE
LICENSOR TO THE LICENSEE, OF THE METHODS AND PROCESSES USED BY THE
FORMER AT THE DATE OF THE LICENSE IN ITS COMMERCIAL PRACTICE UNDER THE
LICENSED PATENTS IN CONNECTION WITH THE PRODUCTION OF TITANIUM
PIGMENTS." 

THE LIMITED SCOPE OF THIS ACCESS TO TECHNICAL INFORMATION IS
APPARENT.  ON THE OTHER HAND, THERE IS REASON TO BELIEVE THAT THE
KNOWLEDGE WHICH THUS CAN BE SECURED MAY BE VITAL IN GIVING VALUE TO THE
COMPULSORY LICENSES WHICH ARE A CENTRAL FEATURE OF THE DECREE.  THE
INFORMATION IS PUT UPON A BASIS COMPARABLE TO THAT OF A LICENSE.  JUST
AS A LICENSEE IS REQUIRED TO PAY A UNIFORM, REASONABLE ROYALTY FOR THE
PRIVILEGE OF OPERATING UNDER THE PATENT, SO, ALSO, HE IS REQUIRED TO
PAY A REASONABLE CHARGE FOR THE INFORMATION AS TO METHODS AND PROCESSES
WHICH MAY BE IMPORTANT TO HIM IN HIS COMMERCIAL PRACTICE UNDER THE
LICENSED PATENTS. 

THE NEED FOR TECHNICAL INFORMATION TO ACCOMPANY PATENT LICENSES IN
THIS FIELD, AT LEAST WHERE DESIRED BY A NEWCOMER, IS TESTIFIED TO
REPEATEDLY.  IF THERE BE SUCH A NEED, THE REASONABLENESS OF THIS
LIMITED AVAILABILITY OF IT AS STATED IN THE DECREE IS HARD TO DENY. 
FINDINGS OF FACT EVIDENCING THE IMPORTANCE OF SUCH INFORMATION INCLUDE
THE FOLLOWING: 

"NL WISHED TO POOL WITH DP ALL THEIR PATENTS AND TECHNICAL
INFORMATION RELATING TO THE MANUFACTURE OR USE OF TITANIUM PIGMENTS IN
THE UNITED STATES IN ORDER TO SETTLE ITS PATENT CONTROVERSIES WITH DP
AND TO OBTAIN ACCESS TO DP'S PATENTS AND TECHNICAL FACILITIES AND
JOINTLY TO CONTROL AND DOMINATE THE MANUFACTURE AND SALE OF TITANIUM
PIGMENTS AND COMPOUNDS; ...  BOTH TP AND KREBS BEGAN TO EXCHANGE
EXTENSIVELY TECHNICAL INFORMATION RELATING TO THE MANUFACTURE AND USE
OF TITANIUM PIGMENTS IN 1932 AND THE INFORMATION SO EXCHANGED RELATED
TO MUCH MORE THAN ANY ALLEGED CLAIMS OF PATENT INFRINGEMENT BY EITHER
COMPANY.  BLUMENFELD AND HIS FOREIGN ASSOCIATES FURNISHED TECHNICAL AID
AND ASSISTANCE TO KREBS AT ITS INSTANCE FROM AUGUST 1931 UNTIL THE
APPROXIMATE DATE AT WHICH TP AND KREBS COMMENCED THE EXCHANGE OF
TECHNICAL INFORMATION IN 1932."  FINDING OF FACT 72. 

"DP AND NL EXCHANGED TECHNICAL INFORMATION RELATING IN ANY MANNER TO
THE MANUFACTURING OR USE OF TITANIUM PIGMENTS OR COMPOUNDS FROM ABOUT
APRIL, 1932, UNTIL APRIL, 1940."  FINDING OF FACT 75. 

"IN ENTERING INTO THE AGREEMENT, EX. E (THE AGREEMENT OF JULY 1,
1933), NL HAD SEVERAL PURPOSES: 

1)  FOR ABOUT A YEAR PRIOR TO THE MAKING OF EX. E OFFICIALS OF NL HAD
BEEN CONCERNED BY THE EARLY EXPIRATION DATES OF MANY OF THE PATENTS
UPON WHICH NL RELIED.  BY EXCHANGING PATENTS AND TECHNOLOGY WITH DP, A
LARGE AND POWERFUL CORPORATION, POSSESSED OF GREAT RESEARCH FACILITIES,
NL EXPECTED TO STRENGTHEN THE PATENT MONOPOLY OF NL AND DP JOINTLY, AS
AGAINST NEWCOMERS IN THE TITANIUM PIGMENT BUSINESS. 

     .    .         .         .         . 

"DP'S PURPOSES IN ENTERING INTO THE AGREEMENT EX. E WERE: 

     .         .   .         .         . 

3)  TO OBTAIN ACCESS TO NL'S TECHNICAL EXPERIENCE AND PATENTS IN THE
TITANIUM PIGMENT FIELD AS WELL AS THE PATENTS AND THE EXPERIENCE OF
NL'S FOREIGN ASSOCIATES. 

     .         .         .         .         . 

"THE NECESSARY EFFECTS OF THE AGREEMENT EX. E. AND OF DP ASSURANCES
HAVE BEEN 

1)  THE ACHIEVEMENT OF NL PURPOSES. 

2)  THE ACHIEVEMENT OF DP'S PURPOSES. 

3)  TO GIVE NL AND DP TOGETHER DOMINATION AND CONTROL OVER THE
TITANIUM PIGMENT BUSINESS IN THE U.S."  FINDING OF FACT 79. 

NATIONAL LEAD ON THIS POINT NOW TAKES A MIDDLE GROUND.  APPARENTLY IT
SUPPORTS THE PRESENT PROVISION IN THE DECREE AND OPPOSES ITS EXPANSION
AS PROPOSED BY THE GOVERNMENT.  IT EXPRESSLY ENDORSES THE PRESENT
PROVISIONS IF THE DECREE IS AMENDED SO AS TO PUT THE COMPULSORY
LICENSES ON A ROYALTY-FREE BASIS.  IF IT APPROVES THIS GRANT OF ACCESS
TO TECHNICAL INFORMATION ON THAT BASIS, IT HARDLY CAN OBJECT TO IT IN
CONNECTION WITH LICENSES ON A UNIFORM, REASONABLE ROYALTY BASIS. 

THE FACT THAT THIS COURT ELIMINATED, WITHOUT DISCUSSION, PARAGRAPH
24(C) FROM THE HARTFORD-EMPIRE DECREE IS NOT CONTROLLING HERE. 
HARTFORD-EMPIRE CO. V. UNITED STATES, SUPRA, 413, 418.  THE FACT THAT
THE VIOLATIONS OF THE ANTITRUST ACT MAY HAVE BEEN MORE REPREHENSIBLE IN
THAT CASE THAN HERE IS NOT PERSUASIVE BECAUSE THIS PROVISION IS NOT AND
SHOULD NOT BE PUNITIVE.  THE JUSTIFICATION FOR THE COMPULSORY IMPARTING
OF METHODS AND PROCESSES RESTS UPON ITS APPROPRIATENESS AND UPON THE
NECESSITY FOR IT IN PROVIDING AN EFFECTIVE DECREE.  IN THE HARTFORD
EMPIRE DECREE, PARAGRAPH 24(C) PROPOSED TO MAKE AVAILABLE, TO ANY
LICENSEE UNDER PARAGRAPH 24(A)(WITHOUT ROYALTIES), OR UNDER PARAGRAPH
24(B)(WITH REASONABLE ROYALTIES), AT COST, PLUS A REASONABLE PROFIT,
"ALL DRAWINGS AND PATTERNS 'RELATING TO THE MACHINERY OR METHODS USED
IN THE MANUFACTURE OF GLASSWARE' EMBODIED IN THE LICENSED INVENTIONS
..."  ID. AT 413-414.  THIS COURT, IN THAT CASE, MODIFIED PARAGRAPHS
24(A) AND 24(B) AND DELETED PARAGRAPH 24(C).  IN THE ABSENCE OF A
STATEMENT OF THIS COURT'S REASONS FOR THE DELETION OF PARAGRAPH 24(C),
IT CANNOT BE ASSUMED THAT, BY SUCH DELETION, IT ANNOUNCED ITS
DISAPPROVAL, IN ALL FUTURE DECREES, OF PROVISIONS REQUIRING THE
SUPPLYING OF TECHNICAL INFORMATION TO LICENSEES AT A REASONABLE
CHARGE. 

IT MAY WELL BE THAT THE DISTRICT COURT, IN THE PRESENT CASE, TOOK
INTO CONSIDERATION THE ARGUMENT MADE BY NATIONAL LEAD THAT, IN THIS
FIELD, "THE PRODUCT CLAIMS COVER PRACTICALLY ALL SUCH IMPROVED TITANIUM
PIGMENTS; THUS, OF 23 DIFFERENT GRADES OF TITANIUM PIGMENTS (I.E.
DIFFERENT PRODUCTS) SOLD BY NL, 21 ARE COVERED BY UNEXPIRED PATENTS." 
FINDING OF FACT 37.  THEREFORE, THE IMPARTING TO THE NEWCOMER OF
METHODS AND PROCESSES COVERED BY THE DECREE MIGHT BE PARTICULARLY
IMPORTANT TO HIM IN ENTERING THIS INDUSTRY WHERE SUBSTANTIALLY ALL THE
COMMERCIAL PRODUCTS ARE COVERED EITHER BY PROCESS OR PRODUCT PATENTS. 

DU PONT HAS PRESENTED A STRONG CASE AGAINST COMPELLING IT TO MAKE
FURTHER DISCLOSURE OF ITS TECHNICAL INFORMATION TO ITS LEADING
COMPETITOR, NATIONAL LEAD, IN THIS COMPARATIVELY MATURE TECHNICAL
INDUSTRY, ESPECIALLY SINCE THE AGREEMENT OF 1941 BETWEEN THESE
COMPANIES EXPRESSLY TERMINATED THEIR PRE-EXISTING AGREEMENT TO SUPPLY
SUCH INFORMATION.  THIS ARGUMENT DOES NOT APPLY, HOWEVER, WITH
COMPARABLE FORCE, TO THE MANY OTHER SITUATIONS TOWARD WHICH THIS
PROVISION IS DIRECTED.  UNDER ALL THE CIRCUMSTANCES, AND IN VIEW OF THE
NARROW LIMITS WRITTEN INTO THE PROVISION BY THE DISTRICT COURT, WE
BELIEVE THAT IT REPRESENTS A PERMISSIBLE EXERCISE OF JUDICIAL
DISCRETION.  IT IS TO BE JUDGED FROM THE POINT OF VIEW OF THE PUBLIC
INTEREST AS WELL AS THAT OF THE PRIVATE INTERESTS CONCERNED.  THAT
PUBLIC INTEREST REQUIRES THAT THE COURT BE PERMITTED TO PRODUCE THE
MOST EFFECTIVE AND GENERALLY FAIR DECREE THAT IT CAN DEVISE TO GIVE
EFFECT SIMULTANEOUSLY TO THE ANTITRUST LAWS AND THE PATENT LAWS. 

THIS DECISION RELIES ALSO ON THE PERMISSIBLE BREADTH OF THE DISTRICT
COURT'S DISCRETION OVER THE CONDITIONS UNDER WHICH TECHNICAL
INFORMATION SHALL BE REQUIRED TO BE SHARED WITH THE WORLD.  THE ATTEMPT
OF THE GOVERNMENT TO THROW THE FIELD OF TECHNICAL KNOWLEDGE IN THE
TITANIUM PIGMENT INDUSTRY WIDE-OPEN WOULD REDUCE THE COMPETITIVE VALUE
OF THE INDEPENDENT RESEARCH OF THE PARTIES.  IT WOULD DISCOURAGE RATHER
THAN ENCOURAGE COMPETITIVE RESEARCH.  IT WOULD BE CONTRARY TO, RATHER
THAN IN CONFORMITY WITH, THE POLICY OF THE PATENT LAWS NOW IN FORCE. 
CHANGES IN THE UNDERLYING POLICIES OF THE PATENT LAWS FREQUENTLY HAVE
BEEN PRESENTED TO CONGRESS,  FN10  BUT CONGRESS, BY ITS FAILURE TO
ACCEPT THOSE CHANGES, HAS ADDED TO, RATHER THAN DETRACTED FROM, THE
STRENGTH OF THE PRESENT AND TRADITIONAL PATENT POLICIES. 

D. REQUEST TO OMIT THE PROVISION THAT NATIONAL LEAD AND DU PONT,
RESPECTIVELY, MAY MAKE THE GRANT OF ANY LICENSE BY EITHER OF THEM TO AN
APPLICANT UNDER THE DECREE CONDITIONED UPON THE RECIPROCAL GRANT OF A
LICENSE BY THE APPLICANT, AT A REASONABLE ROYALTY, UNDER CERTAIN
DESCRIBED PATENTS OWNED OR CONTROLLED BY SUCH APPLICANT.  THIS IS URGED
BY THE GOVERNMENT IN NO. 89 AND OPPOSED BY THE APPELLANT COMPANIES. 

THE DISTRICT COURT, DURING THE CONFERENCES ON THE TERMS OF THE
DECREE, SUMMARIZED THE NEED FOR THIS PROVISION BY A CONCRETE
ILLUSTRATION OF WHAT IT SUGGESTED MIGHT HAPPEN WITHOUT IT.  IT SAID: 

"OTHERWISE YOU WILL ARRIVE AT A SITUATION CONCEIVABLY WHERE VIRGINIA
CHEMICAL WOULD SIMPLY CHANGE PLACES WITH DU PONT IN BECOMING THE
DOMINATING FACTOR IN THE INDUSTRY UNDER THIS EXTRAORDINARY ADVANTAGE OF
BEING ABLE TO TAKE EVERYTHING FOR ITSELF AND KEEPING EVERYTHING THAT IT
HAS." 

THE DISTRICT COURT DISTINGUISHED THE PRESENT CASE FROM THE HARTFORD
EMPIRE CASE BY SHOWING THAT, IN THE LATTER, THERE HAD NOT BEEN A
SIMILAR REASON FOR INSERTING THE RECIPROCAL REQUIREMENT.  IN THAT CASE,
THE COURT WAS DEALING WITH A LICENSOR ORGANIZATION WHICH HAD NO USE FOR
PATENTS EXCEPT FOR THE RESULTING CONTROL OVER LICENSING AND,
CONSEQUENTLY, IT WOULD HAVE DERIVED NO BENEFIT FROM CROSS-LICENSES. 
THE RECIPROCAL CLAUSE INCLUDES AN APPROPRIATE REFERENCE TO FUTURE
PATENTS.  AS A FIVE-YEAR LIMIT IS PUT ON THE PATENTS WHICH WILL BE
SUBJECT TO THE COMPULSORY LICENSE CLAUSE, UNDER PARAGRAPHS 4 AND 7 OF
THE DECREE, SO ALSO THE RECIPROCAL LICENSES ARE LIMITED BY PARAGRAPH 7
TO "PATENTS COVERING TITANIUM PIGMENTS OR THEIR MANUFACTURE, NOW ISSUED
OR PENDING, OR ISSUED WITHIN FIVE YEARS FROM THE DATE OF THIS DECREE
...  " 

HERE AGAIN, THE PROVISION IS WELL WITHIN THE DISCRETION OF THE
DISTRICT COURT IN SEEKING MEANS TO FIT THE RELIEF IT GRANTS TO THE
NEEDS OF THE PARTICULAR CASE, ALWAYS WITH DUE REGARD TO THE UNDERLYING
PUBLIC INTEREST THAT IS INHERENT IN THE ANTITRUST AND PATENT LAWS. 
FN11 

E. REQUEST TO OMIT THE SIX-MONTHS' TIME LIMIT IMPOSED BY THE DECREE
UPON THE OPTIONS OF AMERICAN ZIRCONIUM CORPORATION AND VIRGINIA
CHEMICAL CORPORATION, RESPECTIVELY, TO SECURE CERTAIN LICENSES UNDER
THE DECREE.  THIS IS URGED BY THE GOVERNMENT IN NO. 89.  IT IS NOT
DISCUSSED HERE IN THE BRIEFS OF THE OTHER PARTIES.  THE EFFECTIVE DATE
OF THE DECREE OF OCTOBER 11, 1945, WAS STAYED AND SUSPENDED, BY THE
ORDER OF MR. JUSTICE REED ENTERED JANUARY 2, 1946, PENDING
DETERMINATION OF THE PRESENT APPEALS TO THIS COURT, SO THAT MORE THAN
SIX MONTHS ALREADY HAVE PASSED SINCE THE ORIGINAL DATE OF THE DECREE
WITHOUT PREJUDICING THE RIGHTS OF THE PARTIES AFFECTED.  IN VIEW OF
SUCH SUSPENSION AND OF THE NEW EFFECTIVE DATE TO BE GIVEN TO THE
DECREE, PURSUANT TO THE ORDER OF THIS COURT, THERE WILL BE AMPLE TIME
FOR THE EXERCISE OF THIS OPTION UNDER ITS TERMS. 

F. REQUEST TO MODIFY THE LANGUAGE OF THE DECREE SO AS TO ELIMINATE
LANGUAGE WHICH, IT IS CLAIMED, ENJOINS NORMAL AND USUAL BUSINESS
ARRANGEMENTS BETWEEN THE APPELLANT COMPANIES AND OTHER PRODUCERS OF
TITANIUM PRODUCTS.  THIS IS URGED BY NATIONAL LEAD IN NO. 90 AND IS
OPPOSED BY THE GOVERNMENT.  THE PRECISE REQUEST IS TO STRIKE FROM
PARAGRAPHS 5 AND 6 OF THE DECREE CERTAIN LANGUAGE SHOWN IN THE MARGIN
OF THIS TEXT IN ITALICS AND TO INSERT IN PARAGRAPH 6 THE WORD
"PRODUCER" AT THE POINT THERE SHOWN IN CAPITAL LETTERS.  FN12  NATIONAL
LEAD CONTENDS THAT THE CANCELLATION OF THE AGREEMENTS, AS ORDERED IN
PARAGRAPH 5, AND THE INJUNCTION, AS ORDERED IN PARAGRAPHS 5 AND 6,
AGAINST THE FURTHER PERFORMANCE OR THE CONTINUATION OR RENEWAL OF THE
UNLAWFUL PROVISIONS THEREOF (NAMELY, DIVISION OF SALES OR MANUFACTURING
TERRITORY, ALLOCATION OF MARKETS, LIMITATION OF IMPORTS OR EXPORTS,
RESTRICTIONS ON USE, ETC.) WILL INSURE COMPLETE AND EFFECTIVE RELIEF
WITHOUT SUBJECTING NATIONAL LEAD OR DU PONT TO UNDUE HARDSHIP AND
LOSSES.  ACCORDINGLY, NATIONAL LEAD STATES THAT IT ASKS FOR THE CHANGES
HERE INDICATED IN THE INTEREST OF PROMOTING TRADE AND COMPETITION IN
TITANIUM PIGMENTS. 

WE AGREE, HOWEVER, WITH THE GOVERNMENT'S INTERPRETATION THAT
PARAGRAPH 5 DEALS SOLELY WITH THE FUTURE ENFORCEABILITY OF EXISTING
CONTRACTS AND THAT THE DELETION OF THE WORDS REQUESTED BY NATIONAL LEAD
IS NOT NECESSARY IN ORDER TO REMOVE BARRIERS TO FUTURE CONTRACTS. 
PARAGRAPH 6 DEALS WITH FUTURE CONTRACTS.  CLAUSE (A) ENJOINS THE
PARTIES FROM ENTERING INTO OR ADHERING TO ANY AGREEMENT, PLAN OR
PROGRAM "WHICH HAS AS ITS PURPOSE OR EFFECT THE CONTINUING OR RENEWING
OF ANY OF THE AGREEMENTS LISTED IN PARAGRAPH 5  ...  "  SINCE SUCH
AGREEMENTS HAVE BEEN FOUND TO VIOLATE THE SHERMAN ACT, THIS PROVISION
IMPOSES NO UNJUSTIFIED RESTRICTION ON NATIONAL LEAD'S POWER TO
CONTRACT.  WE FIND ALSO NO SUFFICIENT BASIS FOR INSERTING THE WORD
"PRODUCER" AS REQUESTED IN PARAGRAPH 6.  IF NATIONAL LEAD LATER CAN
DEMONSTRATE THAT ITS RIGHT OF CONTRACT HAS BEEN UNDULY RESTRICTED, IT
MAY, UNDER THE TERMS OF THE DECREE, APPLY TO THE DISTRICT COURT FOR A
MODIFICATION OF THE JUDGMENT. 

G. REQUEST TO OMIT THE REQUIREMENT THAT NATIONAL LEAD AND TITAN INC.,
WITHIN ONE YEAR, SHALL PRESENT TO THE DISTRICT COURT, FOR ITS APPROVAL,
A PLAN FOR DIVESTING THEMSELVES OF THEIR STOCKHOLDINGS AND OTHER
FINANCIAL INTERESTS IN CERTAIN FOREIGN COMPANIES OR FOR THE PURCHASE OF
THE ENTIRE STOCKHOLDINGS AND INTERESTS, DIRECT OR INDIRECT, IN SUCH
COMPANIES OR ANY OF THEM.  TO ACCOMPLISH THIS, NATIONAL LEAD AND TITAN
INC., IN NO. 90, URGE THE DELETION OF PARAGRAPH 8 FROM THE DECREE. 
FN13  THE GOVERNMENT OPPOSES SUCH DELETION.  THE REQUIREMENT IMPOSED BY
PARAGRAPH 8 IS MERELY THAT CERTAIN PARTIES SHALL PRESENT TO THE
DISTRICT COURT, WITHIN ONE YEAR, A PLAN SUBJECT TO ITS APPROVAL.  THAT
COURT, DURING THE CONFERENCES ON THE TERMS OF THE DECREE, SAID: "IN
OTHER WORDS, THE STOCK ACQUISITIONS WERE PART AND PARCEL OF THE
TERRITORIAL ALLOCATION AGREEMENTS, AND PROBABLY WERE A NECESSARY
ELEMENT IN THE ESTABLISHMENT OF THE TERRITORIAL ARRANGEMENT."  WE FIND
AMPLE REASONS IN THE RECORD FOR THE ACTION OF THE DISTRICT COURT IN
INSERTING PARAGRAPH 8 IN THE DECREE.  IT IS RELATED DIRECTLY TO THE
INJUNCTION AGAINST FURTHER PERFORMANCE OF ANY OF THE PROVISIONS OF THE
AGREEMENTS LISTED IN THE DECREE AS BEING IN VIOLATION OF THE SHERMAN
ACT. 

IN THUS DISPOSING OF THE POINTS RELIED UPON IN THE RESPECTIVE
APPEALS, THE DECREE WILL REMAIN AS ORIGINALLY ENTERED BY THE DISTRICT
COURT, EXCEPTING ONLY THAT, AS A RESULT OF THE DISSOLUTION OF THE STAY
AND SUSPENSION OF CERTAIN PROVISIONS OF THE DECREE CONTAINED IN
PARAGRAPHS 5, 8, 9, 10 AND 11 THEREOF, WHICH WERE GRANTED PENDING
DETERMINATION OF THESE APPEALS TO THIS COURT, THE DECREE SHALL BE
DEEMED, FOR THE PURPOSES OF THOSE PARAGRAPHS AND FOR THE RUNNING OF
TIME THEREUNDER, TO TAKE EFFECT ON THE EFFECTIVE DATE OF THE MANDATE TO
BE ISSUED BY THIS COURT. 

FOR THE REASONS SET FORTH, THE MOTION OF THE UNITED STATES TO AMEND
ITS ASSIGNMENTS OF ERROR IS GRANTED AND THE JUDGMENT OF THE DISTRICT
COURT IS AFFIRMED. 

FN1  "SECTION 1.  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 HEREBY DECLARED TO BE
ILLEGAL:  ...  EVERY PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN
ANY COMBINATION OR CONSPIRACY HEREBY DECLARED TO BE ILLEGAL SHALL BE
DEEMED GUILTY OF A MISDEMEANOR, AND, ON CONVICTION THEREOF, SHALL BE
PUNISHED BY FINE NOT EXCEEDING $5,000, OR BY IMPRISONMENT NOT EXCEEDING
ONE YEAR, OR BY BOTH SAID PUNISHMENTS, IN THE DISCRETION OF THE
COURT."  50 STAT. 693-694, 15 U.S.C. SEC. 1. 

FN2  THE CONCLUSIONS OF LAW OF THE DISTRICT COURT WERE AS FOLLOWS: 

"1.  BEGINNING ON OR ABOUT JULY 30, 1920, NL AND CO-CONSPIRATOR TAS
(TITAN CO. A/S TO WHICH TITAN INC. BECAME A SUCCESSOR IN INTEREST) AND
ON VARIOUS DATES THEREAFTER TINC, DP AND THE OTHERS FOUND HEREIN TO BE
CO-CONSPIRATORS CONTINUING AT ALL TIMES THEREAFTER TO THE DATE OF THESE
FINDINGS HAVE BEEN CONTINUOUSLY ENGAGED IN A COMBINATION AND CONSPIRACY
IN RESTRAINT OF TRADE AND COMMERCE IN TITANIUM PIGMENTS AND COMPOUNDS
AMONG THE SEVERAL STATES OF THE UNITED STATES AND WITH FOREIGN NATIONS
AND HAVE BEEN AND ARE NOW PARTIES TO CONTRACTS, AGREEMENTS AND
UNDERSTANDINGS IN RESTRAINT OF SUCH TRADE AND COMMERCE. 

"2.  PLAINTIFF IS ENTITLED TO A DECREE."  SEE ALSO, UNITED STATES V.
NATIONAL LEAD CO., 63 F.SUPP.  513, 527, 531, 532. 

FN3  SEE NOTE 4, INFRA. 

FN4  "THIS CAUSE CAME ON TO BE HEARD UPON THE COMPLAINT AND THE
ANSWERS THERETO UPON THE EVIDENCE AND UPON ARGUMENT OF COUNSEL.  THE
COURT HAVING THEREAFTER RENDERED AND FILED ITS OPINION AND HAVING MADE
AND ENTERED FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREIN THE
DEFENDANTS HAVE BEEN FOUND TO HAVE BEEN ENGAGED IN A COMBINATION IN
RESTRAINT OF TRADE AND COMMERCE IN TITANIUM PIGMENTS AMONG THE SEVERAL
STATES OF THE UNITED STATES AND OF FOREIGN NATIONS, AND THAT THE
DEFENDANTS HAVE BEEN AND NOW ARE PARTIES TO CONTRACTS, AGREEMENTS, AND
UNDERSTANDINGS IN RESTRAINT OF SUCH TRADE AND COMMERCE IN VIOLATION OF

"NOW, THEREFORE, UPON MOTION OF PLAINTIFF BY WENDELL BERGE, ASSISTANT
ATTORNEY GENERAL, HERBERT BERMAN AND WILLIAM C. DIXON, SPECIAL
ASSISTANTS TO THE ATTORNEY GENERAL, JULIAN CAPLAN AND EPHRAIM JACOBS,
SPECIAL ATTORNEYS, AND JOHN F. X. MCGOHEY, UNITED STATES ATTORNEY, FOR
RELIEF IN ACCORDANCE WITH THE PRAYER OF THE COMPLAINT, AND THE
DEFENDANTS HAVING SEVERALLY APPEARED BY COUNSEL, IT IS ORDERED,
ADJUDGED AND DECREED AS FOLLOWS: 

"1.  THE TERM 'TITANIUM PIGMENTS' AS USED HEREIN SHALL MEAN ANY
PRODUCT CONTAINING TWO PERCENT (2%) OR MORE OF THE ELEMENT TITANIUM IN
A CHEMICALLY, MECHANICALLY OR PHYSICALLY COMBINED STATE AND MIXTURES
THEREOF WHICH CAN BE USED AS PIGMENTS, WHETHER OR NOT ADAPTED FOR OTHER
USES, AND ALSO EXTENDERS TO BE USED IN CONJUNCTION WITH ANY SUCH
PRODUCT. 

"2.  THE TERM 'DEFENDANTS' SHALL MEAN THE CORPORATIONS HEREINAFTER
LISTED WHO MAY BE IDENTIFIED BY THE DESIGNATED ABBREVIATIONS: 

NL               NATIONAL LEAD COMPANY 

TINC             TITAN COMPANY, INC. 

DP       E.I. DU PONT DE NEMOURS AND COMPANY 

"3.  THE TERM 'CO-CONSPIRATORS' SHALL MEAN THE CORPORATIONS
HEREINAFTER LISTED, WHO MAY BE IDENTIFIED BY THE DESIGNATED
ABBREVIATIONS: 

TP              THE TITANIUM PIGMENT COMPANY, INC. 

KREBS       KREBS PIGMENT & COLOR CORPORATION 

TAS              TITAN CO. A/S 

IG               INTERESSENGEMEINSCHAFT FARBENINDUSTRIE
AKTIENGESELLSCHAFT 

TG               TITANGESELLSCHAFT M.B.H. 

SIT              SOCIETE INDUSTRIELLE DU TITANE 

ICI              IMPERIAL CHEMICAL INDUSTRIES, LTD. 

GW               GOODLASS WALL AND LEAD INDUSTRIES, LTD. 

ISC             IMPERIAL SMELTING CORPORATION, LTD. 

BTP       BRITISH TITAN PRODUCTS COMPANY, LTD. 

NTP OR LAPORTE  NATIONAL TITANIUM PIGMENTS, LTD. 

CIL              CANADIAN INDUSTRIES, LTD. 

CTP              CANADIAN TITANIUM PIGMENTS, LTD. 

KOKUSAN OR KK    KOKUSAN KOGYO KABUSHIKI KAISHA 

TK               TITAN KOGYO KABUSHIKI KAISHA 

TERRES RARES     SOCIETE DES PRODUITS CHIMIQUES DES TERRES RARES 

THANN            FABRIQUES DES PRODUITS CHIMIQUES DE THANN ET DE
MULHOUSE 

MONTECATINI      SOCIETA ANONIMA TITANIUM 

AUSSIG           VEREIN FUR CHEMISCHE UND METALLURGISCHE PRODUKTION 

"4.  THE TERM 'PATENTS AS HEREIN DEFINED' SHALL MEAN UNITED STATES
LETTERS PATENT AND APPLICATIONS AS FOLLOWS:  (A) THE LETTERS PATENT AND
PATENT APPLICATIONS LISTED IN APPENDIX A HEREOF; (B) ALL DIVISIONS,
CONTINUATIONS OR REISSUES OF ANY OF THE FOREGOING PATENTS AND
APPLICATIONS; (C) ALL PATENTS ISSUED UPON SUCH APPLICATIONS; (D) ALL
PATENTS WHICH COVER ANY TITANIUM PIGMENTS OR ANY PROCESS FOR THE
MANUFACTURE OF TITANIUM PIGMENTS ISSUED TO ANY OF THE DEFENDANTS WITHIN
FIVE YEARS FROM THE DATE OF THIS DECREE; AND ALL SUCH PATENTS WHICH ANY
OF THE DEFENDANTS ACQUIRES WITHIN SUCH FIVE YEARS; AND ALL SUCH PATENTS
OF WHICH ANY OF THE DEFENDANTS BECOMES THE EXCLUSIVE LICENSEE WITHIN
SUCH FIVE YEARS WITH POWER TO SUBLICENSE. 

"5.  THE FOLLOWING AGREEMENTS ARE HEREBY ADJUDGED TO BE UNLAWFUL
UNDER SECTION 1 OF THE SHERMAN ACT AND EACH OF THEM IS HEREBY CANCELLED
AND THE DEFENDANTS AND EACH OF THEM AND ALL PERSONS ACTING OR CLAIMING
TO ACT THROUGH, FOR OR UNDER THEM AND ALL SUCCESSORS AND SUBSIDIARIES
OF ANY OF THE DEFENDANTS ARE HEREBY ENJOINED AND RESTRAINED FROM THE
FURTHER PERFORMANCE OF ANY OF THE PROVISIONS OF SAID AGREEMENTS AND OF
ANY AGREEMENTS AMENDATORY THEREOF OR SUPPLEMENTAL THERETO: 

AGREEMENT DATED JULY 30, 1920, BETWEEN TP AND TAS (EXHIBIT A); 

AGREEMENT BETWEEN TP AND KREBS DATED JANUARY 1, 1933, AS AMENDED
JANUARY 1, 1941(EXHIBITS E AND E-3); 

AGREEMENTS DATED JULY 30, 1920, BETWEEN NL, TP, THE TITANIUM ALLOY
MANUFACTURING COMPANY AND TAS (EXHIBITS A-1 AND A-2); 

AGREEMENT BETWEEN TAS AND SIT DATED MARCH 3, 1927(EXHIBIT B); 

AGREEMENT BETWEEN TAS AND IG DATED OCTOBER 3 AND 20, 1927(EXHIBIT
C); 

AGREEMENT BETWEEN TAS AND IG SIGNED JUNE 24 AND OCTOBER 20,
1927(EXHIBIT C-1); 

AGREEMENT BETWEEN TAS AND TG SIGNED OCTOBER 3 AND 20, 1927(EXHIBIT C
3); 

AGREEMENT BETWEEN TG AND TAS DATED OCTOBER 3 AND 20, 1927(EXHIBIT C
7); 

AGREEMENT BETWEEN TG AND TAS DATED OCTOBER 3 AND 20, 1927(EXHIBIT C
8); 

AGREEMENT DATED FEBRUARY 16, 1933 BETWEEN ICI, ISC, GW AND TINC
(EXHIBIT F); 

AGREEMENTS BETWEEN TINC, SIT, TERRES RARES, AND THANN DATED JUNE 5
AND 17, 1935(EXHIBITS G-1 AND G-2); 

AGREEMENTS BETWEEN TINC, TERRES RARES, AND IG, AND BETWEEN TINC,
TERRES RARES, IG, TG, THANN, AND DOITSU (DOITSU SENRYO GOMEI KAISHA,
KOBE/JAPAN) BOTH DATED JANUARY 18, 1936(EXHIBITS J AND J-2); 

AGREEMENT BETWEEN NL AND CIL DATED JANUARY 1, 1937(EXHIBIT K); 

AGREEMENT BETWEEN NL AND CTP DATED JANUARY 1, 1937, AS AMENDED
FEBRUARY 27, 1939(EXHIBITS K-1 AND K-5); 

AGREEMENTS BETWEEN DP AND TINC DATED JULY 27, 1937, JUNE 20, 1938,
APRIL 21, 1939, MAY 10, 1940, AND JUNE 23, 1941(EXHIBITS M, N, Q, R AND
S), AND THE 

'LICENSE FIELD EXTENDER' AGREEMENTS TO WHICH NL OR TINC WERE PARTIES,
INCLUDING THE AGREEMENT BETWEEN NL AND TINC DATED MARCH 28,
1939(EXHIBIT O); 

PROVIDED, HOWEVER, THAT THE PROVISIONS OF THIS PARAGRAPH WITH RESPECT
TO THE AGREEMENTS BETWEEN TP AND KREBS DATED JANUARY 1, 1933, AS
AMENDED JANUARY 1, 1941(EXHIBITS E AND E-3) SHALL NOT GO INTO EFFECT
UNTIL THE EXPIRATION OF NINE MONTHS FROM THE DATE OF THIS DECREE. 

"6.  EACH OF THE DEFENDANTS AND EACH OF THEIR DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES, SUCCESSORS AND SUBSIDIARIES AND ALL PERSONS ACTING,
OR CLAIMING TO ACT UNDER, THROUGH OR FOR THEM OR ANY OF THEM ARE HEREBY
ENJOINED AND RESTRAINED (A) FROM ENTERING INTO, ADHERING TO,
MAINTAINING OR FURTHERING, DIRECTLY OR INDIRECTLY, OR CLAIMING ANY
RIGHTS UNDER ANY CONTRACT, AGREEMENT, UNDERSTANDING, PLAN OR PROGRAM
AMONG THEMSELVES, THE CO-CONSPIRATORS, OR WITH ANY OTHER PERSON,
PARTNERSHIP OR CORPORATION, WHICH HAS AS ITS PURPOSE OR EFFECT THE
CONTINUING OR RENEWING OF ANY OF THE AGREEMENTS LISTED IN PARAGRAPH 5
HEREOF; (B) FROM ENTERING INTO, ADHERING TO, MAINTAINING OR FURTHERING,
DIRECTLY OR INDIRECTLY, ANY CONTRACT, AGREEMENT, UNDERTAKING, PLAN OR
PROGRAM WITH ANY OTHER PRODUCER OR DEALER RELATING TO TITANIUM PIGMENTS
WHICH HAS AS ITS PURPOSE OR EFFECT (1) TO DIVIDE SALES OR MANUFACTURING
TERRITORIES, (2) TO ALLOCATE MARKETS, (3) TO LIMIT OR PREVENT UNITED
STATES IMPORTS OR EXPORTS, (4) TO GRANT TO ANY THIRD PARTY ANY MARKET
AS ITS EXCLUSIVE TERRITORY, (5) TO KEEP ANY THIRD PARTY OUT OF ANY
MARKET; PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SUBDIVISION
(B) OF THIS PARAGRAPH 6 SHALL PROHIBIT ANY NORMAL AND USUAL
ARRANGEMENTS BETWEEN ANY DEFENDANT AND ITS DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, SUBSIDIARIES, OR ANY DEALER OR DISTRIBUTOR, WHETHER
OR NOT A CO-CONSPIRATOR; (C) FROM RESTRICTING ANY PURCHASER OF TITANIUM
PIGMENTS IN THE USE THEREOF. 

"7.  EACH OF THE DEFENDANTS IS ORDERED TO GRANT TO ANY APPLICANT
THEREFOR, INCLUDING ANY DEFENDANT OR CO-CONSPIRATOR, A NONEXCLUSIVE
LICENSE UNDER ANY OR ALL OF THE PATENTS AS HEREIN DEFINED AT A UNIFORM,
REASONABLE ROYALTY.  SUCH GRANT MAY, AT THE OPTION OF THE LICENSOR, BE
CONDITIONED UPON THE RECIPROCAL GRANT OF A LICENSE BY THE APPLICANT, AT
A REASONABLE ROYALTY, UNDER ANY AND ALL PATENTS COVERING TITANIUM
PIGMENTS OR THEIR MANUFACTURE, NOW ISSUED OR PENDING, OR ISSUED WITHIN
FIVE YEARS FROM THE DATE OF THIS DECREE, IF ANY, OWNED OR CONTROLLED BY
SUCH APPLICANT.  SUCH LICENSE OR RECIPROCAL LICENSE MAY, AT THE OPTION
OF EITHER PARTY, CONTAIN A PROVISION FOR THE INSPECTION OF THE BOOKS
AND RECORDS OF THE LICENSEE BY AN INDEPENDENT AUDITOR WHO SHALL REPORT
TO THE LICENSOR ONLY THE AMOUNT OF ROYALTY DUE AND PAYABLE AND NO OTHER
INFORMATION.  DURING A PERIOD OF THREE YEARS FROM THE DATE OF THIS
DECREE SUCH LICENSE OR RECIPROCAL LICENSE MAY AT THE OPTION OF EITHER
PARTY CONTAIN A PROVISION FOR THE IMPARTING IN WRITING, AT A REASONABLE
CHARGE, BY THE LICENSOR TO THE LICENSEE, OF THE METHODS AND PROCESSES
USED BY THE FORMER AT THE DATE OF THE LICENSE IN ITS COMMERCIAL
PRACTICE UNDER THE LICENSED PATENTS IN CONNECTION WITH THE PRODUCTION
OF TITANIUM PIGMENTS.  THE COURT RESERVES JURISDICTION TO PASS UPON THE
REASONABLENESS OF ANY ROYALTY OR CHARGE HEREIN DIRECTED TO BE
REASONABLE.  DEFENDANTS ARE RESTRAINED FROM ATTEMPTING TO ENFORCE ANY
RIGHTS UNDER ANY FOREIGN PATENTS OWNED BY THEM OR UNDER WHICH THEY ARE
THE EXCLUSIVE LICENSEES TO PREVENT THE EXPORTATION OF TITANIUM PIGMENTS
FROM THE UNITED STATES TO ANY FOREIGN COUNTRY.    "8.  WITHIN ONE YEAR
FROM THE DATE OF THIS DECREE, DEFENDANTS NL AND TINC SHALL PRESENT TO
THE COURT FOR ITS APPROVAL A PLAN FOR DIVESTING THEMSELVES OF THEIR
STOCK HOLDINGS AND OTHER FINANCIAL INTEREST, DIRECT AND INDIRECT, IN
BTP, CTP, TG AND TK, OR FOR THE PURCHASE OF THE ENTIRE STOCK HOLDINGS
AND OTHER FINANCIAL INTERESTS, DIRECT AND INDIRECT, IN SAID COMPANIES
OR ANY OF THEM.  SUCH PLAN OF SALE SHALL NOT PROVIDE FOR THE TRANSFER
OF SUCH STOCK OR INTEREST TO ANY OTHER DEFENDANT OR TO ANY CORPORATION
IN WHICH ANY DEFENDANT WILL, UPON CONSUMMATION OF THE PLAN, HAVE ANY
INTEREST, PROVIDED THAT THIS PROVISION SHALL NOT PRECLUDE TRANSFER OF
SAID DEFENDANTS' STOCK HOLDINGS IN BTP TO ISC, GW, AND ICI, OR ANY OF
THEM, OR PRECLUDE TRANSFER OF SAID DEFENDANTS' STOCK HOLDINGS IN CTP TO
CIL.  THE PLAN SHALL PROVIDE FOR ITS COMPLETION WITHIN TWO YEARS FROM
THE DATE OF THIS DECREE. 

"9.  EITHER AMERICAN ZIRCONIUM CORPORATION OR VIRGINIA CHEMICAL
CORPORATION, THEIR SUCCESSORS OR ASSIGNS, MAY AT THEIR OPTION, IF
EXERCISED WITHIN SIX MONTHS FROM THE DATE OF THIS DECREE, APPLY FOR
LICENSES FROM DP UNDER THE PROVISIONS OF PARAGRAPH 7.  IN THE EVENT
AMERICAN ZIRCONIUM CORPORATION, VIRGINIA CHEMICAL CORPORATION OR THEIR
RESPECTIVE SUCCESSORS OR ASSIGNS EXERCISE THE FOREGOING OPTION, DP IS
ENJOINED FROM COLLECTING ROYALTIES UNDER ANY EXISTING LICENSE AGREEMENT
RELATING TO TITANIUM PIGMENTS BETWEEN IT AND THE PERSON EXERCISING THE
OPTION IN RESPECT OF ANY PERIOD SUBSEQUENT TO SUCH EXERCISE. 
DEFENDANTS NL, TINC AND DP ARE HEREBY ENJOINED FROM BRINGING, OR
THREATENING TO BRING, ANY ACTION AGAINST ANY PERSON OR CORPORATION FOR
THE ALLEGED INFRINGEMENT PRIOR TO THE DATE OF THIS DECREE OF ANY PATENT
AS HEREIN DEFINED. 

"10.  THE ATTORNEY GENERAL OF THE UNITED STATES OR HIS PROPER
REPRESENTATIVE SHALL, FOR THE PURPOSE OF SECURING COMPLIANCE WITH THIS
DECREE, BE PERMITTED (1) ACCESS, DURING THE OFFICE HOURS OF THE
DEFENDANTS, TO ALL BOOKS, LEDGERS, ACCOUNTS, CORRESPONDENCE, MEMORANDA,
AND OTHER RECORDS AND DOCUMENTS IN THE POSSESSION OR UNDER THE CONTROL
OF THE DEFENDANTS, RELATING TO ANY MATTERS CONTAINED IN THIS DECREE,
(2) SUBJECT TO ANY LEGALLY RECOGNIZED PRIVILEGE, WITHOUT RESTRAINT OR
INTERFERENCE FROM THE DEFENDANTS, TO INTERVIEW OFFICERS OR EMPLOYEES OF
THE DEFENDANTS, WHO MAY HAVE COUNSEL PRESENT, REGARDING ANY SUCH
MATTERS; PROVIDED, HOWEVER, THAT INFORMATION OBTAINED BY THE MEANS
PERMITTED IN THIS PARAGRAPH SHALL NOT BE DIVULGED BY ANY REPRESENTATIVE
OF THE DEPARTMENT OF JUSTICE TO ANY PERSON OTHER THAN A DULY AUTHORIZED
REPRESENTATIVE OF THE DEPARTMENT OF JUSTICE EXCEPT IN THE COURSE OF
LEGAL PROCEEDINGS FOR THE PURPOSE OF SECURING COMPLIANCE WITH THIS
DECREE IN WHICH THE UNITED STATES IS A PARTY OR AS OTHERWISE REQUIRED
BY LAW. 

"11.  JUDGMENT IS ENTERED AGAINST THE DEFENDANTS FOR ALL COSTS TO BE
TAXED IN THIS PROCEEDING. 

"12.  THE CANCELLATIONS, INJUNCTIONS AND ALL EXECUTORY ACTION
PROVIDED FOR UNDER THIS DECREE SHALL NOT BECOME EFFECTIVE OR OPERATIVE
UNTIL NINETY DAYS FROM THE DATE OF THIS DECREE. 

"13.  JURISDICTION OF THIS CAUSE, AND OF THE PARTIES HERETO, IS
RETAINED BY THE COURT FOR THE PURPOSE OF ENABLING ANY OF THE PARTIES TO
THIS DECREE, OR ANY OTHER PERSON OR CORPORATION THAT MAY HEREAFTER
BECOME BOUND, IN WHOLE OR IN PART, THEREBY TO APPLY TO THE COURT AT ANY
TIME FOR SUCH FURTHER ORDERS, MODIFICATIONS, VACATIONS OR DIRECTIONS AS
MAY BE NECESSARY OR APPROPRIATE 

(1)  FOR THE CONSTRUCTION OR CARRYING OUT OF THIS DECREE, AND 

(2)  FOR THE ENFORCEMENT OF COMPLIANCE THEREWITH AND THE PUNISHMENT
OF VIOLATIONS THEREOF." 

"APPENDIX A" CONSISTS ONLY OF THE IDENTIFICATION OF NATIONAL LEAD'S
82 PATENTS AND 20 APPLICATIONS FOR PATENTS; TITAN INC.'S 19 PATENTS AND
1 APPLICATION; TITAN CO. A/S'S 2 PATENTS; I.G. FARBENINDUSTRIE'S 22
PATENTS; TITANGESELLSCHAFT'S 2 PATENTS; AND DU PONT'S 175 PATENTS AND
30 APPLICATIONS.  THE REFERENCES IN THE DECREE TO EXHIBITS REFER TO
SUCH EXHIBITS AS THEY ARE IDENTIFIED IN THE RECORD OF THIS CASE IN THE
DISTRICT COURT. 

FN5  "CARTELS HAVE BEEN DEFINED BY TWO OF THE FOREMOST MEMBERS AND
ADVOCATES OF SUCH BODIES.  IN THE WORDS OF SIR ALFRED MOND, ORGANIZER
OF IMPERIAL CHEMICAL INDUSTRIES: 

"'I USE THE WORD CARTEL TO INCLUDE FUSION, POOLING ARRANGEMENT, QUOTA
ARRANGEMENT AND PRICE CONVENTION, BECAUSE A CARTEL IS PROTEAN IN ITS
FORM.  ...  IN AN ULTRATECHNICAL WAY, A CARTEL MIGHT BE DEFINED AS A
COMBINATION OF PRODUCERS FOR THE PURPOSE OF REGULATING, AS A RULE,
PRODUCTION, AND, FREQUENTLY, PRICES.  ... ' 

"IN THE WORDS OF SIR FELIX J. C. POLE, CHAIRMAN OF ASSOCIATED
ELECTRICAL INDUSTRIES, LTD.: 

"'A CARTEL OR ASSOCIATION USUALLY MEANS AN ASSOCIATION BY AGREEMENT
OF COMPANIES OR SECTIONS OF COMPANIES HAVING COMMON INTERESTS.  IT IS
DESIGNED TO PREVENT EXTREME OR UNFAIR COMPETITION AND ALLOCATE MARKETS,
AND IT MAY ALSO EXTEND TO INTERCHANGE OF KNOWLEDGE RESULTING FROM
SCIENTIFIC AND TECHNICAL RESEARCH, EXCHANGE OF PATENT RIGHTS,
STANDARDIZATION OF PRODUCTS, ETC.  COMPETITION IS NOT ELIMINATED, BUT
IT IS REGULATED.  COMPETITION IN QUALITY, EFFICIENCY, AND SERVICE TAKES
THE PLACE OF THE CRUDE METHOD OF PRICE CUTTING.'"  MONOGRAPH NO. 1,
SUBCOMMITTEE ON WAR MOBILIZATION OF THE COMMITTEE ON MILITARY AFFAIRS,
U.S. SENATE, 78TH CONG., 2D SESS., PART I, P. 1.  QUOTED ALSO IN UNITED
STATES V. NATIONAL LEAD CO., 63 F.SUPP.  513, 523, NOTE 5. 

FN6  "THIS PURPOSE WAS ACCOMPLISHED.  THE DEFENDANT NL AND TAS AGREED
TO HAVE TAS AND SUBSEQUENTLY DEFENDANT TINC FORM IN EACH OF THE
IMPORTANT INDUSTRIAL COUNTRIES OF THE WORLD, IN ASSOCIATION WITH A
LOCAL CORPORATION OR FIRM WHICH CONTEMPLATED THE MANUFACTURE AND SALE
OF TITANIUM PIGMENTS AND COMPOUNDS OR WHICH COULD CONTRIBUTE TO THE
TECHNICAL OR COMMERCIAL DEVELOPMENT OR WHICH THREATENED TO BE A SERIOUS
COMPETITOR OF NL AND TAS, A NEW COMPANY IN WHICH NL OR TAS WERE TO HAVE
A PART INTEREST.  ANY NEW COMPANY SO FORMED WAS TO BE GIVEN CERTAIN
TERRITORY IN WHICH IT WOULD HAVE THE EXCLUSIVE RIGHT TO MANUFACTURE AND
SELL TITANIUM PIGMENTS AND COMPOUNDS FREE FROM ANY EXPORTS INTO SAID
TERRITORY BY NL.  THE NEW COMPANY SO ORGANIZED WAS TO REFRAIN FROM
COMPETING WITH NL IN ITS TERRITORY (THE UNITED STATES AND OTHER
COUNTRIES OF NORTH AMERICA) OR IN THE TERRITORY OF ANY OTHER COMPANY
ASSOCIATED WITH NL.  TAS AND SUBSEQUENTLY DEFENDANT TINC WERE TO MAKE
SAID CONTRACTS PROVIDING FOR THE FORMATION OF THE NEW COMPANIES AND NL
WAS TO BE BOUND TO ADHERE TO ALL OF THE TERRITORIAL RESTRICTIONS PLACED
ON TAS AND SUBSEQUENTLY DEFENDANT TINC IN SUCH CONTRACTS BY VIRTUE OF
CONTRACT EXHIBIT A. (THE AGREEMENT OF JULY 30, 1920.)  ALL THE PRESENT
AND FUTURE PATENTS BELONGING TO NL OR TAS OR ANY OF THE COMPANIES
ASSOCIATED WITH EITHER IN THE FORMATION OF SUCH NEW COMPANIES, AS WELL
AS THOSE OF THE NEW COMPANIES TO BE ORGANIZED, WERE TO BE LICENSED
EXCLUSIVELY TO NL FOR NORTH AMERICA AND TO THE NEW COMPANIES TO BE
ORGANIZED FOR THEIR RESPECTIVE EXCLUSIVE TERRITORIES AND TO TAS AND
SUBSEQUENTLY DEFENDANT TINC FOR THE REST OF THE WORLD."  FINDING OF
FACT 48. 

FN7  HEARINGS BEFORE COMMITTEE ON PATENTS ON H.R. 23,417, 62D CONG.,
2D SESS. (1912), PART XII, PP. 10-11; H.R. REP. 1161, 62D CONG., 2D
SESS. (1912), PART 2, P. 8; REPORT OF SUBCOMMITTEE OF THE AMERICAN BAR
ASSOCIATION APPOINTED TO CONSIDER THE KING BILL, S. 383, 74TH CONG.
(1935), P. 38. 

FN8  A RECENT RECOGNITION OF A REASONABLE ROYALTY TEST IS CONTAINED
IN CHAPTER 726 OF THE 79TH CONGRESS, 2D SESSION: 

"  ...  UPON A JUDGMENT BEING RENDERED IN ANY CASE FOR AN
INFRINGEMENT THE COMPLAINANT SHALL BE ENTITLED TO RECOVER GENERAL
DAMAGES WHICH SHALL BE DUE COMPENSATION FOR MAKING, USING, OR SELLING
THE INVENTION, NOT LESS THAN A REASONABLE ROYALTY THEREFOR, TOGETHER
WITH SUCH COSTS, AND INTEREST, AS MAY BE FIXED BY THE COURT...."  R.S.
SEC. 4921, AS AMENDED AUGUST 1, 1946, 60 STAT. 778, 35 U.S.C.A. SEC.
70(SUPP.  1946), RELATING TO THE POWER OF COURTS TO GRANT INJUNCTIONS
AND ESTIMATE DAMAGES. 

THE MOST RECENT AND OUTSTANDING EXAMPLE OF ITS RECOGNITION IS IN
HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 413-417. 

IN PATENT ACCOUNTING SUITS, WHERE THE PROFITS OR DAMAGES CANNOT BE
ASCERTAINED AND NO STANDARD OF COMPARISON IS AVAILABLE, THE COURT MAY
ALLOW A REASONABLE ROYALTY. 

"BUT, AS THE PATENT HAD BEEN KEPT A CLOSE MONOPOLY, THERE WAS NO
ESTABLISHED ROYALTY.  IN THAT SITUATION IT WAS PERMISSIBLE TO SHOW THE
VALUE BY PROVING WHAT WOULD HAVE BEEN A REASONABLE ROYALTY, CONSIDERING
THE NATURE OF THE INVENTION, ITS UTILITY AND ADVANTAGES, AND THE EXTENT
OF THE USE INVOLVED.  NOT IMPROBABLY SUCH PROOF WAS MORE DIFFICULT TO
PRODUCE, BUT IT WAS QUITE AS ADMISSIBLE AS THAT OF AN ESTABLISHED
ROYALTY."  DOWAGIAC MFG. CO. V. MINNESOTA PLOW CO., 235 U.S. 641, 648. 

SEE ALSO, SHELDON V. METRO-GOLDWYN CORP., 309 U.S. 390, 404; SUFFOLK
CO. V. HAYDEN, 3 WALL.  315, 320; 3 WALKER ON PATENTS SEC. 833(DELLER'S
ED. 1937)(ID. 1945 POCKET SUPP.); 56 YALE L.J. 77. 

FN9  UNITED STATES V. OWENS-ILLINOIS GLASS CO., CCH TRADE REG. SERV.
P57,498(D.C.N.D. CALIF., 1946); UNITED STATES V. AMERICAN AIR FILTER
CO., CCH TRADE REG. SERV. P57,492(D.C.W.D. KY. 1946); UNITED STATES V.
LIBBEY-OWENS-FORD GLASS CO., CCH TRADE REG. SERV. P57,489(D.C.N.D. OHIO
1946); UNITED STATES V. DIAMOND MATCH CO., CCH TRADE REG. SERV.
P57,456(D.C.S.D.N.Y. 1946); UNITED STATES V. GENERAL ELEC.  CO., CCH
TRADE REG. SERV. P57,448(D.C.N.J. 1946); UNITED STATES V. BENDIX
AVIATION CORP., CCH TRADE REG. SERV. P57,444(D.C.N.J. 1946); CROSBY
STEAM GAGE & VALUE CO. V. MANNING, MAXWELL & MOORE, CCH TRADE REG.
SERV. P57,336(D.C. MASS. 1945). 

FN10  H.R. 20,388, 60TH CONG., 1ST SESS. (1908); H.R. 11,796, 61ST
CONG., 1ST SESS. (1909); H.R. 2930, 62D CONG., 1ST SESS. (1911); H.R.
16,828, 62D CONG., 2D SESS. (1912); H.R. 23,417, AS AMENDED, 62D CONG.,
2D SESS. (1912); H.R. 1700, 63D CONG., 1ST SESS. (1913); H.R. 14,865,
63D CONG., 2D SESS. (1914); S. 2783, 70TH CONG., 1ST SESS. (1928); S.
2491, 77TH CONG., 2D SESS. (1942). 

FN11  PROVISIONS FOR RECIPROCAL LICENSING HAVE BEEN INCORPORATED IN
CONSENT DECREES.  SEE $2UNITED STATES V. GENERAL ELEC.  CO., CCH TRADE
REG. SERV. P52,777(D.C.N.J. 1942); UNITED STATES V. AMERICAN BOSCH
CORP., CCH TRADE REG. SERV. P52,888(D.C.S.D.N.Y. 1942).  1942). 

FN12  "'5.  THE FOLLOWING AGREEMENTS ARE HEREBY ADJUDGED TO BE
UNLAWFUL UNDER SECTION 1 OF THE SHERMAN ACT AND EACH OF THEM IS HEREBY
CANCELLED AND THE DEFENDANTS AND EACH OF THEM AND ALL PERSONS ACTING OR
CLAIMING TO ACT THROUGH, FOR OR UNDER THEM AND ALL SUCCESSORS AND
SUBSIDIARIES OF ANY OF THE DEFENDANTS ARE HEREBY ENJOINED AND
RESTRAINED FROM THE FURTHER PERFORMANCE OF ANY OF THE PROVISIONS OF
SAID AGREEMENTS AND OF ANY AGREEMENTS AMENDATORY THEREOF OR
SUPPLEMENTAL THERETO:  (FOLLOWED BY A LIST OF THE CANCELED
AGREEMENTS)' 

"'6.  EACH OF THE DEFENDANTS AND EACH OF THEIR DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES, SUCCESSORS AND SUBSIDIARIES AND ALL PERSONS ACTING,
OR CLAIMING TO ACT UNDER, THROUGH OR FOR THEM OR ANY OF THEM ARE HEREBY
ENJOINED AND RESTRAINED (A) FROM ENTERING INTO, ADHERING TO,
MAINTAINING OR FURTHERING, DIRECTLY OR INDIRECTLY, OR CLAIMING ANY
RIGHTS UNDER ANY CONTRACT, AGREEMENT, UNDERSTANDING, PLAN OR PROGRAM
AMONG THEMSELVES, THE CO-CONSPIRATORS, OR WITH ANY OTHER PERSON,
PARTNERSHIP OR CORPORATION, WHICH HAS AS ITS PURPOSE OR EFFECT THE
CONTINUING OR RENEWING OF ANY OF THE AGREEMENTS LISTED IN PARAGRAPH 5
HEREOF; (B) FROM ENTERING INTO, ADHERING TO, MAINTAINING OR FURTHERING,
DIRECTLY OR INDIRECTLY, ANY CONTRACT, AGREEMENT, UNDERTAKING, PLAN OR
PROGRAM WITH ANY OTHER PRODUCER OR DEALER RELATING TO TITANIUM PIGMENTS
WHICH HAS AS ITS PURPOSE OR EFFECT (1) TO DIVIDE SALES OR MANUFACTURING
TERRITORIES, (2) TO ALLOCATE MARKETS, (3) TO LIMIT OR PREVENT UNITED
STATES IMPORTS OR EXPORTS, (4) TO GRANT TO ANY THIRD PARTY ANY MARKET
AS ITS EXCLUSIVE TERRITORY, (5) TO KEEP ANY THIRD PARTY OUT OF ANY
MARKET; PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SUBDIVISION
(B) OF THIS PARAGRAPH 6 SHALL PROHIBIT ANY NORMAL AND USUAL
ARRANGEMENTS BETWEEN ANY DEFENDANT AND ITS DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, SUBSIDIARIES, OR ANY PRODUCER, DEALER OR
DISTRIBUTOR, WHETHER OR NOT A CO-CONSPIRATOR; (C) FROM RESTRICTING ANY
PURCHASER OF TITANIUM PIGMENTS IN THE USE THEREOF.'" 

FN13  FOR PARAGRAPH 8, SEE NOTE 4, SUPRA. 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MURPHY AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING IN PART. 

I CANNOT AGREE THAT ROYALTIES SHOULD BE CHARGED ON PATENTS WHOSE
MISUSE HAS BEEN SO FLAGRANT AS TO PERSUADE US TO APPROVE COMPULSORY
LICENSING OF ALL WHO DESIRE TO USE THE INVENTIONS.  NOR DO I THINK THAT
THE FAILURE TO PROVIDE FOR ROYALTY-FREE LICENSING MAY BE SUSTAINED AS
AN EXERCISE OF THE JUDICIAL DISCRETION OF THE DISTRICT COURT.  THAT
WOULD BE THE CASE IF THE DISTRICT COURT HAD BEEN FREE TO FRAME ITS
DECREE UNEMBARRASSED BY THE RULING IN HARTFORD-EMPIRE CO. V. UNITED
STATES, 323 U.S. 386, 324 U.S. 570.  IN THAT CASE THIS COURT MODIFIED
AN ANTITRUST DECREE SO AS TO PERMIT "REASONABLE" ROYALTIES ON PATENTS
WHICH HAD BEEN ORDERED LICENSED WITHOUT CHARGE TO ALL APPLICANTS.  THE
LANGUAGE THERE USED WELL MIGHT LEAD A COURT TO THE CONCLUSION THAT
ROYALTY-FREE LICENSING IS A REMEDY UNACCEPTABLE AS A MATTER OF LAW. 
FN1  IN THESE CIRCUMSTANCES IT IS FAIR TO ASSUME THAT THE ACTION OF THE
DISTRICT JUDGE IN THE PRESENT CASE WAS IN DEFERENCE TO THE HARTFORD
EMPIRE RULE RATHER THAN A REFLECTION OF HIS OWN JUDGMENT.  FN2    THE
HARTFORD-EMPIRE CASE PRESENTED THE FIRST INSTANCE, SO FAR AS I AM
AWARE, OF THE INCORPORATION OF A ROYALTY-FREE LICENSING PROVISION IN AN
ANTITRUST DECREE.  SINCE THE QUESTION IS ONE OF THE GREATEST IMPORTANCE
IN THE ADMINISTRATION OF THE ANTITRUST LAWS, AND WAS NOT CONSIDERED BY
THE FULL COURT,  FN3  I THINK IT REMAINS AN OPEN ONE, EXCEPT AS APPLIED
TO THE HARTFORD-EMPIRE CASE, AND WE ARE FREE TO CONSIDER WHETHER THAT
CASE SHOULD BE FOLLOWED UNDER THE FACTS AND CIRCUMSTANCES HERE
PRESENTED. 

IN THE HARTFORD-EMPIRE CASE THE COURT STRESSED THE FACT THAT CONGRESS
HAD NOT SPECIFICALLY AUTHORIZED FORFEITURE OF PATENTS IN ANTITRUST
ACTIONS.  IT THOUGHT THAT "IF, AS WE MUST ASSUME ON THIS RECORD, A
DEFENDANT OWNS VALID PATENTS, IT IS DIFFICULT TO SAY THAT, HOWEVER MUCH
IN THE PAST SUCH DEFENDANT HAS ABUSED THE RIGHTS THEREBY CONFERRED, IT
MUST NOW DEDICATE THEM TO THE PUBLIC."  323 U.S. P. 415.  THE
DIFFICULTY WITH THAT ARGUMENT IS THAT IT PROVES TOO MUCH.  FOR THE
COURT WAS AT THE SAME TIME SANCTIONING COMPULSORY LICENSING, A MOST
SERIOUS INROAD ON PATENT RIGHTS.  THE PATENT LAW GIVES TO THE PATENTEE
OR HIS ASSIGNEE THE "EXCLUSIVE RIGHT TO MAKE, USE, AND VEND THE
INVENTION OR DISCOVERY  ...  "  R.S. SEC. 4884, 35 U.S.C. SEC. 40.  IF
THE ANTITRUST COURT COULD NOT INTERFERE WITH PATENT RIGHTS, THEN IT
COULD NOT ORDER LICENSING ON ANY TERMS, FOR MANDATORY LICENSING IS
HARDLY CONSISTENT WITH EXCLUSIVE RIGHTS.  AGAIN, IF THE FAILURE OF
CONGRESS SPECIFICALLY SO TO PROVIDE PREVENTS A COURT FROM DIRECTING
ROYALTY-FREE LICENSING, THEN BY THE SAME TOKEN THE FAILURE TO PROVIDE
FOR COMPULSORY LICENSING IS A BAR TO THAT RELIEF ALSO. 

IT IS THUS CLEAR THAT THE CRITERION FOR CHOOSING THE APPROPRIATE
ANTITRUST REMEDIES CANNOT BE FOUND IN CONGRESSIONAL SILENCE.  THE TASK
OF PUTTING AN END TO MONOPOLISTIC PRACTICES AND RESTORING COMPETITION
IS ONE OF MAGNITUDE AND COMPLEXITY; CONGRESS HAS AUTHORIZED USE OF THE
BROADEST POWERS OF EQUITY TO COPE WITH IT.  UNDER A STATUTE PROVIDING
MORE DETAILED REMEDIES THAN DO THE ANTITRUST LAWS, WE HAVE HELD THAT AN
EQUITY COURT MAY MOULD ADDITIONAL ONES.  SEE PORTER V. WARNER HOLDING
CO., 328 U.S. 395.  AND ITS POWERS UNDER THE ANTITRUST LAWS, THOUGH NOT
SPECIFICALLY ENUMERATED, ARE AMPLE TO THWART THE PLANS OF THOSE WHO
WOULD BUILD ILLEGAL EMPIRES, NO MATTER HOW IMAGINATIVE THEIR
UNDERTAKINGS OR SUBTLE THEIR TECHNIQUES.  THE POWER OF THE COURT IS NOT
LIMITED TO THE RESTRAINT OF FUTURE TRANSGRESSIONS.  THE IMPAIRMENT OF
PROPERTY RIGHTS IS NO BARRIER TO THE FASHIONING OF A DECREE WHICH WILL
GRANT EFFECTIVE RELIEF.  UNITED STATES V. UNION PACIFIC R. CO., 226
U.S. 470, 476-477.  DIVESTITURE OR DISSOLUTION MAY BE ORDERED IN SPITE
OF HARDSHIP, INCONVENIENCE, OR LOSS.  UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173, 189.  DEVICES OR INSTRUMENTALITIES WHICH
MAY BE USED FOR LEGITIMATE ENDS MAY NEVERTHELESS BE OUTLAWED ENTIRELY
WHERE THEY HAVE BEEN EMPLOYED TO BUILD THE MONOPOLY OR TO CREATE THE
RESTRAINT OF TRADE.  UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA,
PP. 187-188.  FOR THE AIM OF THE DECREE IS NOT ONLY TO PREVENT A
REPETITION OF THE UNLAWFUL PRACTICE BUT TO UNDO WHAT WAS DONE, TO
NEUTRALIZE POWER UNLAWFULLY ACQUIRED, TO PREVENT THE DEFENDANTS FROM
ACQUIRING ANY OF THE FRUITS OF THE CONDEMNED PROJECT.  STANDARD OIL CO.
V. UNITED STATES, 221 U.S. 1, 78. 

IF THAT IS TO BE DONE HERE, I THINK WE MUST DO MORE THAN FORBID
FURTHER EXPANSION OF THE EXISTING MONOPOLISTIC SITUATION.  THE
DEFENDANTS HAVE UNLAWFULLY ACQUIRED CONTROL AND DOMINATION OVER THIS
INDUSTRY TO THE EXCLUSION OF COMPETITORS.  THIS CONTROL WAS OBTAINED IN
PART THROUGH THE UNLAWFUL ACQUISITION AND USE OF PATENTS.  AS STATED BY
THE DISTRICT COURT, "THESE PATENTS, THROUGH THE AGREEMENTS IN WHICH
THEY ARE ENMESHED AND THE MANNER IN WHICH THEY HAVE BEEN USED, HAVE, IN
FACT, BEEN FORGED INTO INSTRUMENTS OF DOMINATION OF AN ENTIRE
INDUSTRY.  THE NET EFFECT IS THAT A BUSINESS, ORIGINALLY FOUNDED UPON
PATENTS WHICH HAVE LONG SINCE EXPIRED, IS TODAY LESS ACCESSIBLE TO FREE
ENTERPRISE THAN WHEN IT WAS FIRST LAUNCHED."  63 F.SUPP.  513, 532.  IF
DEFENDANTS ARE ALLOWED ROYALTIES ON THOSE PATENTS, THEY DO, INDEED,
REAP DIVIDENDS FROM THEIR UNLAWFUL ACTIVITIES.  AS STATED IN A DISSENT
IN THE HARTFORD-EMPIRE CASE, "EVERY DOLLAR HEREAFTER, AS WELL AS
HERETOFORE, SECURED FROM LICENSES ON THE PATENTS ILLEGALLY AGGREGATED
IN THE COMBINATION'S HANDS IS MONEY TO WHICH THE PARTICIPANTS ARE NOT
ENTITLED BY VIRTUE OF THE PATENT LAWS OR OTHERS.  IT IS THE IMMEDIATE
PRODUCT OF THE CONSPIRACY."  323 U.S. P. 443. 

BUT BEYOND THAT IS THE EFFECT ON THE INDUSTRY.  HERE DEFENDANTS HAVE
BEEN IN A COMMANDING AND IMPREGNABLE POSITION.  THEY HAVE DOMINATED THE
FIELD AND SUPPRESSED COMPETITION.  IF COMPETITION IS TO BE RESTORED
STRONG MEASURES MUST BE ADOPTED TO PROVIDE THE MAXIMUM OPPORTUNITY FOR
NEW VENTURES TO COMPETE WITH THE ESTABLISHED GIANTS OF THE INDUSTRY. 
IT IS HERE THAT THE MAJOR VICE OF PERMITTING ROYALTIES ON THE LICENSED
PATENTS BECOMES APPARENT.  EACH DOLLAR OF ROYALTY ADDS A DOLLAR TO THE
COSTS OF THE NEW COMPETITOR AND GIVES THE ESTABLISHED LICENSOR ANOTHER
DOLLAR WITH WHICH TO FIGHT THAT COMPETITION.  AS STATED BY NATIONAL
LEAD IN ITS BRIEF BEFORE THIS COURT: 

"NATIONAL AND DU PONT NOT ONLY COMPETE WITH THEIR LICENSEES BUT
DOMINATE THE TITANIUM INDUSTRY.  A REQUIREMENT OF UNIFORM, REASONABLE
ROYALTIES IN NO WAY FREES COMPETITION BECAUSE, NO MATTER WHAT THE
ROYALTY MAY BE, IN THIS INDUSTRY A LICENSEE REQUIRED TO PAY MORE THAN
ITS LICENSOR WILL BE AT A COMPETITIVE DISADVANTAGE." 

     .         .         .         .         . 

"COMPULSORY LICENSING ALONE WOULD NOT BE ENOUGH TO RESTORE THE
INDUSTRY TO A HEALTHY, COMPETITIVE CONDITION.  IF NATIONAL AND DU PONT
ARE PERMITTED TO RECEIVE ROYALTIES ON THEIR EXISTING PATENTS, THEY WILL
STILL BE IN POSITION TO DOMINATE THE INDUSTRY." 

IF NATIONAL LEAD, THE WORLD'S LARGEST PRODUCER OF TITANIUM PIGMENTS,
EXPECTS TO FIND ITSELF AT A COMPETITIVE DISADVANTAGE AS A RESULT OF
REASONABLE ROYALTY LICENSES, WHAT CAN BE THE PROBABLE FATE OF NEWCOMERS
OR EXISTING INDEPENDENTS OF SMALL STATURE?  FN4 

THE DECREE APPROVED BY THE COURT STOPS SHORT OF GRANTING EFFECTIVE
RELIEF.  DIVESTITURE IS REFUSED.  COMPULSORY LICENSING IS ORDERED, BUT
ONLY TO THOSE WHO ARE WILLING RECIPROCALLY TO LICENSE USE BY THE
DEFENDANTS OF THEIR PATENTS.  IN THIS ADDITIONAL RESPECT THE DECREE
WILL ENABLE THE LARGE ESTABLISHED COMPANIES TO STRENGTHEN THEIR
DOMINANT POSITION.  TO GET THE BENEFITS OF THE DECREE AN INDEPENDENT
MUST GIVE UP ONE OF HIS FEW COMPETITIVE ADVANTAGES - THE EXCLUSIVE
RIGHT TO USE SUCH PATENTS AS HE MAY POSSESS.  THESE PROVISIONS, PLUS
THE ADDITIONAL REQUIREMENT OF ROYALTIES ON THE MISUSED PATENTS, EVEN
THOUGH THOSE ROYALTIES BE "REASONABLE," GREATLY INCREASE THE ODDS
AGAINST RESTORATION OF COMPETITION IN THIS INDUSTRY. 

EXCEPT AS TO THE MATTERS MENTIONED, I JOIN IN THE OPINION OF THE
COURT. 

FN1  "THAT A PATENT IS PROPERTY, PROTECTED AGAINST APPROPRIATION BOTH
BY INDIVIDUALS AND BY GOVERNMENT, HAS LONG BEEN SETTLED.  IN
RECOGNITION OF THIS QUALITY OF A PATENT THE COURTS, IN ENJOINING
VIOLATIONS OF THE SHERMAN ACT ARISING FROM THE USE OF PATENT LICENSES,
AGREEMENTS, AND LEASES, HAVE ABSTAINED FROM ACTION WHICH AMOUNTED TO A
FORFEITURE OF THE PATENTS. 

"THE GOVERNMENT URGES THAT SUCH FORFEITURE IS JUSTIFIED BY OUR RECENT
DECISIONS.  ...  BUT THOSE CASES MERELY APPLY THE DOCTRINE THAT, SO
LONG AS THE PATENT OWNER IS USING HIS PATENT IN VIOLATION OF THE
ANTITRUST LAWS, HE CANNOT RESTRAIN INFRINGEMENT OF IT BY OTHERS.  WE
WERE NOT THERE CONCERNED WITH THE PROBLEM WHETHER, WHEN A VIOLATION OF
THE ANTITRUST LAWS WAS TO BE RESTRAINED AND DISCONTINUED, THE COURT
COULD, AS PART OF THE RELIEF, FORFEIT THE PATENTS OF THOSE WHO HAD BEEN
GUILTY OF THE VIOLATION.  LOWER FEDERAL COURTS HAVE RIGHTLY REFUSED TO
EXTEND THE DOCTRINE OF THOSE CASES TO ANTITRUST DECREES BY INSERTING
FORFEITURE PROVISIONS."  323 U.S. PP. 415-416. 

FN2  HE, INDEED, STATED ON ARGUMENT OF A MOTION TO DETERMINE
REASONABLE ROYALTIES:  "I WOULD HAVE LIKED TO GO ALONG ON THE QUESTION
OF ROYALTY-FREE PATENTS, BUT I FELT THAT I HADN'T BEEN GIVEN THE GREEN
LIGHT ON THAT." 

FN3  THE HARTFORD-EMPIRE DECISION WAS FOUR TO TWO ON THIS POINT. 

FN4  IT MUST BE REMEMBERED THAT ONE OF THE CONSEQUENCES OF THE
UNHEALTHY MONOPOLISTIC CONDITION IN THE INDUSTRY HAS BEEN A DEARTH OF
THE ORDINARY PATENT LITIGATION.  THE BURDEN OF TESTING POTENTIALLY
INVALID PATENTS WILL THUS BE PLACED ON THE FIRST ENTERPRISE UNWILLING
TO PAY THE ROYALTIES. 
..END :













UNITED STATES V. CALIFORNIA 382 U.S. 448 


NO. 5, ORIGINAL.  DECIDED JUNE 23, 1947, AND MAY 17, 1965 - ORDER AND
DECREE ENTERED OCTOBER 27, 1947 - SUPPLEMENTAL DECREE ENTERED JANUARY
31, 1966. 


THE MOTION BY THE UNITED STATES FOR THE ENTRY OF A SUPPLEMENTAL DECREE
IS GRANTED AND A SUPPLEMENTAL DECREE IS ENTERED. 

OPINIONS REPORTED:  332 U.S. 19, 381 U.S. 139; ORDER AND DECREE
REPORTED:  332 U.S. 804. 

UNITED STATES V. CALIFORNIA. 

PER CURIAM. 

IN ACCORDANCE WITH THE COURT'S OPINION IN UNITED STATES V.
CALIFORNIA, 381 U.S. 139, PROPOSED DECREES HAVE BEEN SUBMITTED BY THE
PARTIES.  THE COURT HAS EXAMINED SUCH PROPOSED DECREES AND THE BRIEFS
AND PAPERS SUBMITTED IN SUPPORT THEREOF, AND ENTERS THE FOLLOWING
DECREE:

                                 SUPPLEMENTAL DECREE. 

THE UNITED STATES HAVING MOVED FOR ENTRY OF A SUPPLEMENTAL DECREE
HEREIN, AND THE MATTER HAVING BEEN REFERRED TO THE LATE WILLIAM H.
DAVIS AS SPECIAL MASTER TO HOLD HEARINGS AND RECOMMEND ANSWERS TO
CERTAIN QUESTIONS WITH RESPECT THERETO, AND THE SPECIAL MASTER HAVING
HELD SUCH HEARINGS AND HAVING SUBMITTED HIS REPORT, AND THE ISSUES
HAVING BEEN MODIFIED BY THE SUPPLEMENTAL COMPLAINT OF THE UNITED STATES
AND THE ANSWER OF THE STATE OF CALIFORNIA THERETO, AND THE PARTIES
HAVING FILED AMENDED EXCEPTIONS TO THE REPORT OF THE SPECIAL MASTER,
AND THE COURT HAVING RECEIVED BRIEFS AND HEARD ARGUMENT WITH RESPECT
THERETO AND HAVING BY ITS OPINION OF MAY 17, 1965, APPROVED THE
RECOMMENDATIONS OF THE SPECIAL MASTER, WITH MODIFICATIONS, IT IS
ORDERED, ADJUDGED AND DECREED THAT THE DECREE HERETOFORE ENTERED IN
THIS CAUSE ON OCTOBER 27, 1947, 332 U.S. 804, BE, AND THE SAME IS
HEREBY, MODIFIED TO READ AS FOLLOWS: 

1.  AS AGAINST THE STATE OF CALIFORNIA AND ALL PERSONS CLAIMING UNDER
IT, THE SUBSOIL AND SEABED OF THE CONTINENTAL SHELF, MORE THAN THREE
GEOGRAPHICAL MILES SEAWARD FROM THE NEAREST POINT OR POINTS ON THE
COAST LINE, AT ALL TIMES PERTINENT HERETO HAVE APPERTAINED AND NOW
APPERTAIN TO THE UNITED STATES AND HAVE BEEN AND NOW ARE SUBJECT TO ITS
EXCLUSIVE JURISDICTION, CONTROL AND POWER OF DISPOSITION.  THE STATE OF
CALIFORNIA HAS NO TITLE THERETO OR PROPERTY INTEREST THEREIN. 

2.  AS USED HEREIN, "COAST LINE" MEANS: 

(A)  THE LINE OF MEAN LOWER LOW WATER ON THE MAINLAND, ON ISLANDS,
AND ON LOW-TIDE ELEVATIONS LYING WHOLLY OR PARTLY WITHIN THREE
GEOGRAPHICAL MILES FROM THE LINE OF MEAN LOWER LOW WATER ON THE
MAINLAND OR ON AN ISLAND; AND: 

(B)  THE LINE MARKING THE SEAWARD LIMIT OF INLAND WATERS. 

THE COAST LINE IS TO BE TAKEN AS HERETOFORE OR HEREAFTER MODIFIED BY
NATURAL OR ARTIFICIAL MEANS, AND INCLUDES THE OUTERMOST PERMANENT
HARBOR WORKS THAT FORM AN INTEGRAL PART OF THE HARBOR SYSTEM WITHIN THE
MEANING OF ARTICLE 8 OF THE CONVENTION ON THE TERRITORIAL SEA AND THE
CONTIGUOUS ZONE, T.I.A.S. NO. 5639. 

3.  AS USED HEREIN: 

(A)  "ISLAND" MEANS A NATURALLY-FORMED AREA OF LAND SURROUNDED BY
WATER, WHICH IS ABOVE THE LEVEL OF MEAN HIGH WATER: 

(B)  "LOW-TIDE ELEVATION" MEANS A NATURALLY-FORMED AREA OF LAND
SURROUNDED BY WATER AT MEAN LOWER LOW WATER, WHICH IS ABOVE THE LEVEL
OF MEAN LOWER LOW WATER BUT NOT ABOVE THE LEVEL OF MEAN HIGH WATER: 

(C)  "MEAN LOWER LOW WATER" MEANS THE AVERAGE ELEVATION OF ALL THE
DAILY LOWER LOW TIDES OCCURRING OVER A PERIOD OF 18.6 YEARS: 

(D)  "MEAN HIGH WATER" MEANS THE AVERAGE ELEVATION OF ALL THE HIGH
TIDES OCCURRING OVER A PERIOD OF 18.6 YEARS: 

(E)  "GEOGRAPHICAL MILE" MEANS A DISTANCE OF 1852 METERS (6076.10333
...  U.S. SURVEY FEET OR APPROXIMATELY 6076.11549 INTERNATIONAL FEET). 

4.  AS USED HEREIN, "INLAND WATERS" MEANS WATERS LANDWARD OF THE
BASELINE OF THE TERRITORIAL SEA, WHICH ARE NOW RECOGNIZED AS INTERNAL
WATERS OF THE UNITED STATES UNDER THE CONVENTION ON THE TERRITORIAL SEA
AND THE CONTIGUOUS ZONE.  THE INLAND WATERS REFERRED TO IN PARAGRAPH
2(B) HEREOF INCLUDE: 

(A)  ANY RIVER OR STREAM FLOWING DIRECTLY INTO THE SEA, LANDWARD OF A
STRAIGHT LINE ACROSS ITS MOUTH: 

(B)  ANY PORT, LANDWARD OF ITS OUTERMOST PERMANENT HARBOR WORKS AND A
STRAIGHT LINE ACROSS ITS ENTRANCE: 

(C)  ANY "HISTORIC BAY,"  AS THAT TERM IS USED IN PARAGRAPH 6 OF
ARTICLE 7 OF THE CONVENTION, DEFINED ESSENTIALLY AS A BAY OVER WHICH
THE UNITED STATES HAS TRADITIONALLY ASSERTED AND MAINTAINED DOMINION
WITH THE ACQUIESCENCE OF FOREIGN NATIONS: 

(D)  ANY OTHER BAY (DEFINED AS A WELL-MARKED COASTAL INDENTATION
HAVING SUCH PENETRATION, IN PROPORTION TO THE WIDTH OF ITS ENTRANCE, AS
TO CONTAIN LANDLOCKED WATERS, AND HAVING AN AREA, INCLUDING ISLANDS
WITHIN THE BAY, AT LEAST AS GREAT AS THE AREA OF A SEMICIRCLE WHOSE
DIAMETER EQUALS THE LENGTH OF THE CLOSING LINE ACROSS THE ENTRANCE OF
THE BAY, OR THE SUM OF SUCH CLOSING LINES IF THE BAY HAS MORE THAN ONE
ENTRANCE), LANDWARD OF A STRAIGHT LINE ACROSS ITS ENTRANCE OR, IF THE
ENTRANCE IS MORE THAN 24 GEOGRAPHICAL MILES WIDE, LANDWARD OF A
STRAIGHT LINE NOT OVER 24 GEOGRAPHICAL MILES LONG, DRAWN WITHIN THE BAY
SO AS TO ENCLOSE THE GREATEST POSSIBLE AMOUNT OF WATER.  AN ESTUARY OF
A RIVER IS TREATED IN THE SAME WAY AS A BAY. 

5.  IN DRAWING A CLOSING LINE ACROSS THE ENTRANCE OF ANY BODY OF
INLAND WATER HAVING PRONOUNCED HEADLANDS, THE LINE SHALL BE DRAWN
BETWEEN THE POINTS WHERE THE PLANE OF MEAN LOWER LOW WATER MEETS THE
OUTERMOST EXTENSION OF THE HEADLANDS.  WHERE THERE IS NO PRONOUNCED
HEADLAND, THE LINE SHALL BE DRAWN TO THE POINT WHERE THE LINE OF MEAN
LOWER LOW WATER ON THE SHORE IS INTERSECTED BY THE BISECTOR OF THE
ANGLE FORMED WHERE A LINE PROJECTING THE GENERAL TREND OF THE LINE OF
MEAN LOWER LOW WATER ALONG THE OPEN COAST MEETS A LINE PROJECTING THE
GENERAL TREND OF THE LINE OF MEAN LOWER LOW WATER ALONG THE TRIBUTARY
WATERWAY. 

6.  ROADSTEADS, WATERS BETWEEN ISLANDS, AND WATERS BETWEEN ISLANDS
AND THE MAINLAND ARE NOT PER SE INLAND WATERS. 

7.  THE INLAND WATERS OF THE PORT OF SAN PEDRO ARE THOSE ENCLOSED BY
THE BREAKWATER AND BY STRAIGHT LINES ACROSS OPENINGS IN THE BREAKWATER;
BUT THE LIMITS OF THE PORT, EAST OF THE EASTERN END OF THE BREAKWATER,
ARE NOT DETERMINED BY THIS DECREE. 

8.  THE INLAND WATERS OF CRESCENT CITY HARBOR ARE THOSE ENCLOSED
WITHIN THE BREAKWATERS AND A STRAIGHT LINE FROM THE OUTER END OF THE
WEST BREAKWATER TO THE SOUTHERN EXTREMITY OF WHALER ISLAND. 

9.  THE INLAND WATERS OF MONTEREY BAY ARE THOSE ENCLOSED BY A
STRAIGHT LINE BETWEEN POINT PINOS AND POINT SANTA CRUZ. 

10.  THE DESCRIPTION OF THE INLAND WATERS OF THE PORT OF SAN PEDRO,
CRESCENT CITY HARBOR, AND MONTEREY BAY, AS SET FORTH IN PARAGRAPHS 7,
8, AND 9 HEREOF, DOES NOT IMPLY THAT THE THREE-MILE LIMIT IS TO BE
MEASURED FROM THE SEAWARD LIMITS OF THOSE INLAND WATERS IN PLACES WHERE
THE THREE-MILE LIMIT IS PLACED FARTHER SEAWARD BY THE APPLICATION OF
ANY OTHER PROVISION OF THIS DECREE. 

11.  THE FOLLOWING ARE NOT HISTORIC INLAND WATERS, AND DO NOT
COMPRISE INLAND WATERS EXCEPT TO THE EXTENT THAT THEY MAY BE ENCLOSED
BY LINES AS HEREINABOVE DESCRIBED FOR THE ENCLOSURE OF INLAND WATERS
OTHER THAN HISTORIC BAYS: 

(A)  WATERS BETWEEN THE SANTA BARBARA OR CHANNEL ISLANDS, OR BETWEEN
THOSE ISLANDS AND THE MAINLAND: 

(B)  WATERS ADJACENT TO THE COAST BETWEEN POINT CONCEPTION AND POINT
HUENEME: 

(C)  WATERS ADJACENT TO THE COAST BETWEEN POINT FERMIN AND POINT
LASUEN (IDENTIFIED AS THE BLUFFS AT THE END OF THE LAS BOLSAS RIDGE AT
HUNTINGTON BEACH): 

(D)  WATERS ADJACENT TO THE COAST BETWEEN POINT LASUEN AND THE
WESTERN HEADLAND OF NEWPORT BAY: 

(E)  SANTA MONICA BAY: 

(F)  CRESCENT CITY BAY: 

(G)  SAN LUIS OBISPO BAY. 

12.  WITH THE DXCDPTIONS PROVIDED BY SEC. 5 OF THE SUBMERGED LANDS
ACT, 67 STAT. 32, 43 U.S.C. SEC. 1313 (1964 ED.), AND SUBJECT TO THE
POWERS RESERVED TO THE UNITED STATES BY SEC. 3(D) AND SEC. 6 OF SAID
ACT, 67 STAT. 31, 32, 43 U.S.C. SECS. 1311(D) AND 1314 (1964 ED.), THE
STATE OF CALIFORNIA IS ENTITLED, AS AGAINST THE UNITED STATES, TO THE
TITLE TO AND OWNERSHIP OF THE TIDELANDS ALONG ITS COAST (DEFINED AS THE
SHORE OF THE MAINLAND AND OF ISLANDS, BETWEEN THE LINE OF MEAN HIGH
WATER AND THE LINE OF MEAN LOWER LOW WATER) AND THE SUBMERGED LANDS,
MINERALS, OTHER NATURAL RESOURCES AND IMPROVEMENTS UNDERLYING THE
INLAND WATERS AND THE WATERS OF THE PACIFIC OCEAN WITHIN THREE
GEOGRAPHICAL MILES SEAWARD FROM THE COAST LINE AND BOUNDED ON THE NORTH
AND SOUTH BY THE NORTHERN AND SOUTHERN BOUNDARIES OF THE STATE OF
CALIFORNIA, INCLUDING THE RIGHT AND POWER TO MANAGE, ADMINISTER, LEASE,
DEVELOP AND USE THE SAID LANDS AND NATURAL RESOURCES ALL IN ACCORDANCE
WITH APPLICABLE STATE LAW.  THE UNITED STATES IS NOT ENTITLED, AS
AGAINST THE STATE OF CALIFORNIA, TO ANY RIGHT, TITLE OR INTEREST IN OR
TO SAID LANDS, IMPROVEMENTS AND NATURAL RESOURCES EXCEPT AS PROVIDED BY
SEC. 5 OF THE SUBMERGED LANDS ACT. 

13.  THE PARTIES SHALL SUBMIT TO THE COURT FOR ITS APPROVAL ANY
STIPULATION OR STIPULATIONS THAT THEY MAY ENTER INTO, IDENTIFYING WITH
GREATER PARTICULARITY ALL OR ANY PART OF THE BOUNDARY LINE, AS DEFINED
BY THIS DECREE, BETWEEN THE SUBMERGED LANDS OF THE UNITED STATES AND
THE SUBMERGED LANDS OF THE STATE OF CALIFORNIA, OR IDENTIFYING ANY OF
THE AREAS RESERVED TO THE UNITED STATES BY SEC. 5 OF THE SUBMERGED
LANDS ACT.  AS TO ANY PORTION OF SUCH BOUNDARY LINE OR OF ANY AREAS
CLAIMED TO HAVE BEEN RESERVED UNDER SEC. 5 OF THE SUBMERGED LANDS ACT
AS TO WHICH THE PARTIES MAY BE UNABLE TO AGREE, EITHER PARTY MAY APPLY
TO THE COURT AT ANY TIME FOR ENTRY OF A FURTHER SUPPLEMENTAL DECREE. 

14.  THE COURT RETAINS JURISDICTION TO ENTERTAIN SUCH FURTHER
PROCEEDINGS, ENTER SUCH ORDERS, AND ISSUE SUCH WRITS AS MAY FROM TIME
TO TIME BE DEEMED NECESSARY OR ADVISABLE TO GIVE PROPER FORCE AND
EFFECT TO THIS DECREE OR TO EFFECTUATE THE RIGHTS OF THE PARTIES IN THE
PREMISES. 

THE CHIEF JUSTICE, MR. JUSTICE CLARK, AND MR. JUSTICE FORTAS TOOK NO
PART IN THE FORMULATION OF THIS DECREE. 
..END :























WILLIAMS V. AUSTRIAN, 331 U.S. 642 


NO. 850.  ARGUED APRIL 10, 11, 1947.  - DECIDED JUNE 16, 1947.  - 159
F.2D 67, AFFIRMED. 


TRUSTEES IN A REORGANIZATION PROCEEDING UNDER CHAPTER X OF THE
BANKRUPTCY ACT, AS AMENDED BY THE CHANDLER ACT OF 1938, 52 STAT. 840,
WHO HAVE BEEN AUTHORIZED BY THE REORGANIZATION COURT TO SUE OFFICERS
AND DIRECTORS OF THE DEBTOR CORPORATION AND AFFILIATED INTERESTS
ALLEGING MISAPPROPRIATION OF CORPORATE ASSETS (DISCOVERED IN AN
INVESTIGATION UNDER SEC. 167) AND SEEKING AN ACCOUNTING AND OTHER
RELIEF, MAY BRING SUCH SUIT IN ANOTHER FEDERAL DISTRICT COURT, EVEN IN
THE ABSENCE OF DIVERSITY OF CITIZENSHIP OR OTHER USUAL GROUNDS OF
FEDERAL JURISDICTION.  PP. 646-662. 

(A)  THE PHRASE "PROCEEDINGS UNDER THIS ACT," AS USED IN SEC. 2, DOES
NOT RELATE SOLELY TO SUMMARY PROCEEDINGS, BUT INCLUDES PLENARY SUITS AS
WELL.  LATHROP V. DRAKE, 91 U.S. 516, FOLLOWED.  BARDES V. HAWARDEN
BANK, 178 U.S. 524, AND SCHUMACHER V. BEELER, 293 U.S. 367,
DISTINGUISHED.  PP. 646-662. 

(B)  SECTION 23 WAS ADOPTED AS A LIMITATION ON THE PLENARY
JURISDICTION CONFERRED UPON ALL DISTRICT COURTS BY SEC. 2.  PP. 648
654. 

(C)  SECTION 102 OF CHAPTER X, MAKING SEC. 23 INAPPLICABLE IN
PROCEEDINGS UNDER THAT CHAPTER, REMOVES THIS LIMITATION AND GIVES ALL
FEDERAL DISTRICT COURTS JURISDICTION UNDER SEC. 2 OVER PLENARY SUITS
BROUGHT BY A CHAPTER X TRUSTEE, EVEN THOUGH DIVERSITY OF CITIZENSHIP OR
OTHER USUAL GROUND FOR FEDERAL JURISDICTION IS LACKING.  PP. 654-659,
661-662. 

(D)  SUCH JURISDICTION IS NOT CONFINED TO THE REORGANIZATION COURT
BUT APPLIES TO ALL OTHER DISTRICT COURTS AS WELL.  PP. 659-661. 

WILLIAMS ET AL. V. AUSTRIAN ET AL., TRUSTEES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

A DISTRICT COURT IN NEW YORK DISMISSED FOR WANT OF JURISDICTION A
SUIT BROUGHT BY TRUSTEES APPOINTED BY A DISTRICT COURT IN VIRGINIA IN A
REORGANIZATION PROCEEDING UNDER CHAPTER X OF THE BANKRUPTCY ACT.  67
F.SUPP.  223.  THE CIRCUIT COURT OF APPEALS REVERSED.  159 F.2D 67. 
THIS COURT GRANTED CERTIORARI.  330 U.S. 813.  AFFIRMED, P. 662. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

COURTS "SUCH JURISDICTION AT LAW AND IN EQUITY AS WILL ENABLE THEM TO
EXERCISE ORIGINAL JURISDICTION IN PROCEEDINGS UNDER THIS ACT  ...  TO
...  (7) CAUSE THE ESTATES OF BANKRUPTS TO BE COLLECTED, REDUCED TO
MONEY AND DISTRIBUTED, AND DETERMINE CONTROVERSIES IN RELATION THERETO,
EXCEPT AS HEREIN OTHERWISE PROVIDED ...  "  THE EXCEPTION HAS REFERENCE
TO SEC. 23(B), WHICH REQUIRES THAT "SUITS BY THE RECEIVER AND THE
TRUSTEE SHALL BE BROUGHT OR PROSECUTED ONLY IN THE COURTS WHERE THE
BANKRUPT MIGHT HAVE BROUGHT OR PROSECUTED THEM IF PROCEEDINGS UNDER
THIS ACT HAD NOT BEEN INSTITUTED, UNLESS BY CONSENT OF THE DEFENDANT,
EXCEPT AS PROVIDED IN SECTIONS 60, 67, AND 70 OF THIS ACT."  FN2
CONGRESS, HOWEVER, IN THE CHANDLER ACT OF 1938 DECLARED THE
INAPPLICABILITY OF SEC. 23 IN REORGANIZATION PROCEEDINGS UNDER CHAPTER
X; AND IT IS UPON THE SIGNIFICANCE OF THIS ACTION TO THE JURISDICTION
OF THE FEDERAL COURTS THAT THIS CASE TURNS.  FN3 

RESPONDENTS WERE APPOINTED TRUSTEES FOR THE CENTRAL STATES ELECTRIC
CORPORATION, A VIRGINIA CORPORATION IN REORGANIZATION IN THE DISTRICT
COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA. 
FOLLOWING AN INVESTIGATION UNDER SEC. 167  FN4  OF THE ACT, RESPONDENTS
WERE AUTHORIZED TO INSTITUTE SUIT AGAINST PETITIONERS, WHO ARE PAST AND
PRESENT OFFICERS AND DIRECTORS OF THE DEBTOR AND OTHERS HAVING
CONNECTION THEREWITH.  THIS SUIT WAS THEN FILED AGAINST PETITIONERS IN
THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK, ALLEGING A CONSPIRACY TO MISAPPROPRIATE CORPORATE ASSETS AND
ASKING AN ACCOUNTING AND OTHER RELIEF.  THERE WAS NO ALLEGATION OF
DIVERSITY AND JURISDICTION WAS RESTED UPON "THE CONSTITUTION OF THE
UNITED STATES (ARTICLE I, SECTION 8, CLAUSE 4, AND ARTICLE III, SECTION
2), THE ACT OF CONGRESS RELATING TO BANKRUPTCIES (U.S.C. TITLE 11), AND
...  THE PROVISIONS OF SECTION 24(1), (19) OF THE JUDICIAL CODE  ...
" 

THE DISTRICT COURT DISMISSED FOR LACK OF JURISDICTION; FN5  BUT THE
CIRCUIT COURT OF APPEALS REVERSED, HOLDING THAT SINCE THE GOVERNING
PROVISIONS OF SEC. 23, TO WHICH THE "EXCEPT" CLAUSE OF SEC. 2(A)(7)
REFERS, WERE SUSPENDED IN CHAPTER X PROCEEDINGS, JURISDICTION TO HEAR
THIS PLENARY SUIT COULD BE RESTED UPON THE GENERAL LANGUAGE OF SEC. 2. 
OTHER ALLEGED GROUNDS FOR JURISDICTION WERE NOT CONSIDERED.  159 F.2D
67(1946). 

1.  PETITIONERS CONSTRUE "PROCEEDINGS UNDER THIS ACT," WITHIN WHICH
THE JURISDICTIONAL GRANT CONTAINED IN SEC. 2 IS CONFINED, AS EXTENDING
ONLY TO MATTERS PROPER FOR SUMMARY DISPOSITION,  FN6 AND INTERPRET THE
SUSPENSION OF SEC. 23 IN CHAPTER X CASES, WITHOUT PROVIDING A
SUBSTITUTE THEREFOR, AS REMOVING FROM THE ACT AN AFFIRMATIVE GRANT TO
FEDERAL COURTS OF JURISDICTION TO HEAR PLENARY SUITS, RATHER THAN AS AN
ACTION AIMED AT EXPANDING THAT JURISDICTION.  FN7  BUT THESE VIEWS
REST, IN THE MAIN, UPON WHAT WE THINK IS AN ERRONEOUS APPRAISAL OF THE
HISTORY OF SECS. 2 AND 23. 

ACT OF 1867,  FN8  BABBITT V. DUTCHER, 216 U.S. 102, 107(1910); AND
CASES DEALING WITH THAT ACT, WHILE RECOGNIZING THAT CERTAIN SUITS
BROUGHT BY BANKRUPTCY ASSIGNEES SHOULD PROCEED IN PLENARY, RATHER THAN
SUMMARY, FASHION, HELD THAT SEC. 1 GAVE JURISDICTION TO THE BANKRUPTCY
COURTS TO PROCEED IN BOTH WAYS.  FN9 AND ALTHOUGH CERTAIN ASPECTS OF A
BANKRUPTCY PROCEEDING COULD BE HANDLED ONLY BY THE COURT IN WHICH THE
ADJUDICATION WAS HAD, SEC. 1 CONFERRED UPON ALL BANKUPTCY COURTS
JURISDICTION TO HEAR PLENARY SUITS BROUGHT BY BANKRUPTCY ASSIGNEES
AGAINST ADVERSE CLAIMANTS OR AGAINST DEBTORS OF THE BANKRUPT.  FN10 

LATHROP V. DRAKE, 91 U.S. 516(1875), VIEWED THE JURISDICTION OF THE
DISTRICT COURTS IN THIS MANNER AND, WE THINK, CONTRARY TO THE
STATEMENTS LATER MADE IN BARDES V. HAWARDEN BANK, 178 U.S. 524(1900),
AND SCHUMACHER V. BEELER, 293 U.S. 367(1934), UPON WHICH PETITIONERS
RELY, CONSIDERED THE JURISDICTION OF THE DISTRICT COURTS OVER PLENARY
SUITS TO REST UPON SEC. 1 OF THE 1867 ACT.  FN11 

BROAD GRANT OF JURISDICTION CONTAINED IN SEC. 1 OF THE 1867 ACT.  THE
BANKRUPTCY COURTS WERE GIVEN "SUCH JURISDICTION AT LAW AND IN EQUITY AS
WILL ENABLE THEM TO EXERCISE ORIGINAL JURISDICTION IN BANKRUPTCY
PROCEEDINGS ...  "  FN12  BUT SEC. 2(7), WHILE GRANTING TO ALL
BANKRUPTCY COURTS JURISDICTION TO COLLECT AND TO HEAR CONTROVERSIES
RELATING TO THE ESTATE OF THE BANKRUPT, APPENDED THE WORDS "EXCEPT AS
HEREIN OTHERWISE PROVIDED."  THE EXCEPTION HAD REFERENCE TO SEC. 23,
FN13  WHICH, IN THE CLAUSE APPLICABLE TO THE DISTRICT COURTS, PROVIDED
THAT, UNLESS BY THE CONSENT OF THE DEFENDANT, SUITS BY THE BANKRUPTCY
TRUSTEE SHOULD BE BROUGHT ONLY IN THE COURTS WHERE THE BANKRUPT MIGHT
HAVE BROUGHT THEM IF BANKRUPTCY PROCEEDINGS HAD NOT BEEN INSTITUTED. 
IN SHARP CONTRAST TO THE BROAD LANGUAGE OF SEC. 2(7) AND TO THE
PRACTICE UNDER THE 1867 ACT,  FN14  SEC. 23, IN THE INTEREST OF
LITIGANTS AND WITNESSES, DELIBERATELY DIRECTED TO THE STATE COURTS MOST
OF A BANKRUPTCY TRUSTEE'S PLENARY SUITS.  FN15 

SOME LOWER FEDERAL COURTS, HOWEVER, IMMEDIATELY HELD THAT SEC. 23 DID
NOT APPLY TO SUITS BROUGHT TO RECOVER CERTAIN TRANSFERS OF THE
BANKRUPT'S PROPERTY AND, RELYING UPON SEC. 2, UPHELD THE JURISDICTION
OF FEDERAL COURTS.  FN16  BARDES V. HAWARDEN BANK, SUPRA, CHECKED THIS
TREND AND GAVE FULL SCOPE TO THE LANGUAGE OF SEC. 23.  SUITS TO RECOVER
FRAUDULENT TRANSFERS, LIKE OTHER PLENARY SUITS, WERE TO BE TRIED IN THE
STATE COURTS.  IT WAS IN THE BARDES CASE UNNECESSARY TO EXPLORE THE
SCOPE OF SEC. 2; FOR WHATEVER THE GRANT OF JURISDICTION THERE MADE, THE
INTERPRETATION GIVEN SEC. 23 WOULD HAVE REQUIRED THE RESULT REACHED. 
IN ANY EVENT, THE CONSTRUCTION OF SEC. 2, STANDING ALONE AND WITHOUT
REGARD FOR THE INFLUENCE OF SEC. 23, AS BEING CONFINED TO SUMMARY
MATTERS RESTED TO A GREAT EXTENT UPON A READING OF LATHROP V. DRAKE,
SUPRA, WITH WHICH, AS HAS BEEN INDICATED, WE CANNOT AGREE. 

CONGRESSIONAL REACTION TO THE BARDES CASE WAS ALMOST IMMEDIATE. 
WISHING TO ALLOW THE TRUSTEE TO RESORT TO FEDERAL COURTS IN RECOVERING
FRAUDULENT TRANSFERS AND PREFERENCES, CONGRESS IN 1903 CREATED
EXCEPTIONS TO SEC. 23 IN FAVOR OF SUITS BROUGHT UNDER SECS. 60(B) AND
67(E); FN17  AND, BEING DOUBLY CAUTIOUS, CONGRESS ALSO INSERTED IN
SECS. 60(B) AND 67(E) CLAUSES GIVING ANY BANKRUPTCY COURT JURISDICTION
TO HEAR PLENARY SUITS BROUGHT UNDER THOSE SECTIONS.  FN18  IT WAS
EXPLAINED AT THE TIME BY THE HOUSE JUDICIARY COMMITTEE THAT SEC. 2(7)
WOULD PROBABLY HAVE BEEN AMPLE BASIS FOR THE JURISDICTION OF THE
BANKRUPTCY COURTS, AND THAT IT WAS ONLY TO REMOVE ALL DOUBT THAT SECS.
60(B) AND 67(E) HAD ALSO BEEN AMENDED.  FN19 

WHERE SECS. 60(B), 67(E), AND 70(E) WERE NOT INVOLVED, THE BARDES
RULE CONTINUED TO BE APPLIED WHERE PLENARY PROCEEDINGS WERE REQUIRED,
AS IN CASES RELATING TO PROPERTY ADVERSELY HELD  FN20 AND SUITS UPON
CHOSES IN ACTION BELONGING TO THE BANKRUPT'S ESTATE.  FN21  LEFT FOR
SUMMARY DISPOSITION UNDER SEC. 2 WERE THOSE PROCEEDINGS IN WHICH THE
CONTROVERSY RELATED TO PROPERTY IN THE POSSESSION OR CONSTRUCTIVE
POSSESSION OF THE COURT OR TO PROPERTY HELD BY THOSE ASSERTING NO TRULY
ADVERSE CLAIM.  FN22 

FROM ITS INCEPTION, SEC. 23 CONTAINED A CLAUSE SEEMINGLY MITIGATING
THE RIGORS OF THE JURISDICTIONAL REQUIREMENTS IMPOSED.  A TRUSTEE,
"UNLESS BY CONSENT OF THE PROPOSED DEFENDANT," COULD BRING SUIT ONLY IN
COURTS WHERE THE BANKRUPT COULD HAVE SUED.  SUBSEQUENT TO THE BARDES
CASE SOME LOWER FEDERAL COURTS HELD THAT, EVEN WITH THE CONSENT OF A
DEFENDANT, SOME INDEPENDENT GROUND FOR FEDERAL JURISDICTION MUST BE
PRESENT.  FN23  THE CONFLICT WAS RESOLVED IN SCHUMACHER V. BEELER,
SUPRA.  IT WAS HELD THAT IN SEC. 23 CONGRESS HAD EXERCISED ITS
BANKRUPTCY POWERS TO CONFER UPON FEDERAL COURTS JURISDICTION
CONDITIONED UPON A DEFENDANT'S CONSENT  FN24  AND THAT, GIVEN CONSENT,
NO INDEPENDENT GROUND FOR FEDERAL JURISDICTION WAS REQUIRED.  THE CASE
TURNED UPON THE MEANING OF THE CONSENT CLAUSE IN SEC. 23.  THE REMARKS
OFFERED CONCERNING SEC. 2 WERE UNNECESSARY AND, IN ANY EVENT, WERE
BASED UPON THE SIMILAR STATEMENTS MADE IN BARDES V. HAWARDEN BANK,
SUPRA. 

THE BEELER DECISION, LIKE THAT IN THE BARDES CASE, DOES NOT DIRECT A
CONCLUSION THAT SEC. 2, IN THE ABSENCE OF SEC. 23, CONFERS ONLY A
SUMMARY JURISDICTION; FOR IT WAS BECAUSE OF THE LIMITATIONS OF SEC. 23
THAT PLENARY SUITS HAD BEEN EXCLUDED FROM THE OTHERWISE BROAD SCOPE OF
SEC. 2.  FN25 CASES CONSTRUING THE LATTER IN THE PRESENCE OF THE
OVERRIDING PROHIBITIONS OF SEC. 23 ARE NOT PERSUASIVE IN A SITUATION
WHERE, FOR THE FIRST TIME, SEC. 23 HAS BEEN DECLARED INOPERATIVE. 

2.  TO ACCEPT PETITIONER'S READING OF SEC. 2 WOULD PRODUCE
CONSEQUENCES AFFORDING PECULIAR EXPLANATIONS FOR THE EXPRESS
ELIMINATION OF SEC. 23 IN CHAPTER X CASES.  FOR ONE THING, THERE WOULD
BE DESTROYED THE CONSENT BASIS FOR FEDERAL JURISDICTION OF PLENARY
SUITS BROUGHT BY A TRUSTEE; FN26  AND, FOR ANOTHER, DIVERSITY
JURISDICTION WOULD DEPEND UPON THE CITIZENSHIP OF THE TRUSTEE RATHER
THAN UPON THAT OF THE DEBTOR.  THE LATTER IS A FORMAL CHANGE OF NO
OBVIOUS VALUE, AND THE FORMER PUTS A GREATER LIMITATION UPON THE
JURISDICTION OF A CHAPTER X COURT THAN HAS BEEN PLACED UPON AN EQUITY
RECEIVERSHIP, 77B, OR ORDINARY BANKRUPTCY COURT, A RESULT IN OBVIOUS
CONTRAST TO DISCERNIBLE TRENDS IN REORGANIZATION LAW. 

THE COMMITTEE REPORTS AND CONGRESSIONAL DEBATES DO NOT ELABORATE UPON
THE DECISION TO ELIMINATE SEC. 23,  FN27  AND THE HEARINGS REVEAL ONLY
THAT SEC. 23 WAS ONE OF SEVERAL SECTIONS WHICH THE NATIONAL BANKRUPTCY
CONFERENCE DESIRED TO ELIMINATE, AND WHICH MIGHT BE HELD APPLICABLE IF
NOT EXPRESSLY DELETED.  FN28  HOWEVER, THE ACTION OCCURRED IN THE
PROCESS OF DEVELOPING A WORKABLE REORGANIZATION TECHNIQUE AND SHOULD BE
VIEWED IN THAT CONTEXT.  WHILE AN EQUITY RECEIVERSHIP COURT HAD
DEPENDENT JURISDICTION, REGARDLESS OF DIVERSITY OR OTHER INDEPENDENT
GROUNDS FOR FEDERAL JURISDICTION, TO HEAR PLENARY SUITS RELATED TO THE
ESTATE OF THE DEBTOR,  FN29  UNDER SEC. 77B, WHICH MADE REORGANIZATION
OF NON-RAILROAD CORPORATIONS A PART OF THE BANKRUPTCY SCHEME, IT WAS
BELIEVED IN SOME QUARTERS THAT SEC. 23 WOULD HAVE ITS TRADITIONAL
EFFECT UPON THE JURISDICTION OF FEDERAL COURTS TO HEAR PLENARY SUITS,
EVEN THOUGH THE REORGANIZATION COURT WAS GIVEN THE "POWERS" OF AN
EQUITY RECEIVERSHIP COURT.  FN30  OTHER COMMENTATORS, THINKING THAT
SEC. 77B SHOULD NOT PROVIDE A LESS EFFICIENT PROCEDURE THAN THE EQUITY
RECEIVERSHIP, CONSIDERED SEC. 23 INAPPLICABLE TO ((B CASES AND REGARDED
THE REORGANIZATION COURTS AS HAVING JURISDICTION TO HEAR PLENARY
SUITS.  FN31  THE CONTROVERSY HAD NOT BEEN SETTLED WHEN CONGRESSIONAL
COMMITTEES WERE CONSIDERING THE BILL WHICH BECAME THE CHANDLER ACT OF
1938, AND SUCH A BACKGROUND FOR THE SUSPENSION OF SEC. 23 IN CHAPTER X
CASES OBVIOUSLY RAISES NO INFERENCE OF A DESIRE TO RESTRICT, RATHER
THAN TO EXPAND, THE JURISDICTION OF THE FEDERAL COURTS. 

TO INTERPRET THE ELIMINATION OF SEC. 23 IN CHAPTER X CASES AS
RESTRICTING THE ACCESS OF THE TRUSTEE TO THE FEDERAL COURTS WOULD NOT
BE IN HARMONY WITH OTHER PROVISIONS CONTEMPORANEOUSLY WRITTEN INTO
CHAPTER X AND DEFINING ANEW THE POSITION AND FUNCTIONS OF THE
REORGANIZATION TRUSTEE.  THE APPOINTMENT OF A DISINTERESTED TRUSTEE WAS
MADE MANDATORY IN APPROPRIATE CASES, FN32  HIS QUALIFICATIONS WERE
PRESCRIBED N33, AND UPON HIM WERE DEVOLVED FUNCTIONS AIMED AT
ELIMINATING THE ABUSES OF PREVIOUS REORGANIZATION SCHEMES.  FN34  IT
WAS HIS DUTY TO PREPARE THE REORGANIZATION PLAN,  FN35  AND THERE WERE
CONFERRED UPON HIM INVESTIGATIVE POWERS AND DUTIES FN36  WHICH NOT ONLY
CONTEMPLATED THE DISCOVERY OF WRONGS DONE THE DEBTOR BY ITS FORMER
MANAGEMENT, BUT ALSO INSURED THE "PROSECUTION OF ALL CAUSES OF ACTION"
WHICH MIGHT "ADD TO THE ASSETS OF CORPORATIONS IN REORGANIZATION." 
FN37  THESE PROVISIONS WERE "OF PARAMOUNT IMPORTANCE IN THE REVISION OF
DESIRE TO RESTRICT THE TRUSTEE'S CHOICE OF A FORUM IN WHICH TO LITIGATE
PLENARY SUITS.  ON THE CONTRARY, THE CONCLUSION MORE IN ACCORD WITH THE
PURPOSES OF CHAPTER X AND WITH THE PIVOTAL POSITION IN WHICH THE
TRUSTEE WAS PLACED  FN39  IS THAT CONGRESS INTENDED BY THE ELIMINATION
OF SEC. 23 TO ESTABLISH THE JURISDICTION OF FEDERAL COURTS TO HEAR
PLENARY SUITS BROUGHT BY A REORGANIZATION TRUSTEE, EVEN THOUGH
DIVERSITY OR OTHER USUAL GROUND FOR FEDERAL JURISDICTION IS LACKING. 

THE DECISION OF THE CIRCUIT COURT OF APPEALS IS IN ENTIRE HARMONY
WITH THE FOREGOING CONSIDERATIONS.  THE LANGUAGE OF SEC. 2, IN ITS
ORDINARY SENSE AND NO LONGER LIMITED BY SEC. 23, EASILY COMPREHENDS THE
PRESENT TYPE OF SUIT; AND SO TO HOLD DIRECTLY AND EFFECTIVELY SUBSERVES
CONGRESSIONAL DESIRES AS REVEALED IN THE PLAIN POLICY OF CHAPTER X AND
IN THE EXPRESS ELIMINATION OF SEC. 23, WHICH HAS, SINCE ITS ENACTMENT
IN 1898, BEEN VIEWED AS A SHARP RESTRICTION UPON THE JURISDICTION
THERETOFORE EXERCISED BY BANKRUPTCY COURTS AND AS A STRONG PREFERENCE
FOR STATE COURTS.  FN40  SINCE ALL REORGANIZATION COURTS ARE THE
OBJECTS OF THE JURISDICTION CONFERRED BY SEC. 2, FN41  THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK HAS JURISDICTION TO HEAR
THE PRESENT SUIT, WHICH IS BROUGHT BY REORGANIZATION TRUSTEES AND WHICH
CHARGES MISAPPROPRIATION OF THE ASSETS OF A CHAPTER X DEBTOR.  FN42
"THIS SEEMS TO BE THE ONLY LOGICAL CONCLUSION TO BE DERIVED FROM THE
FACT THAT SEC. 23 HAS NO APPLICATION UNDER CHAPTER X."  FN43 

3.  RESPONDENTS IN THE ALTERNATIVE ARGUE THAT THE EQUITY RECEIVERSHIP
POWERS CONFERRED BY SEC. 115  FN44  INCLUDE JURISDICTION TO HEAR
PLENARY SUITS AND THAT ALL REORGANIZATION COURTS MAY EXERCISE THE
JURISDICTION SO CONFERRED.  PETITIONERS WOULD, IN ANY EVENT, CONFINE
THE EFFECTS OF SEC. 115 TO THE REORGANIZATION COURT IN WHICH THE
REORGANIZATION PETITION HAS BEEN APPROVED.  WE NEED NOT PASS ON THESE
CONTENTIONS; FOR, ASSUMING THAT SEC. 115 IS JURISDICTIONAL  FN45  AND
THAT IT EXTENDS ONLY TO THE PRIMARY COURT, JURISDICTION IN THE PRESENT
CASE MAY STILL BE RESTED UPON SEC. 2.  THAT SECTION, IN THE ABSENCE OF
SEC. 23, SUPPORTS THE JURISDICTION OF ALL DISTRICT COURTS TO HEAR
PLENARY SUITS BROUGHT BY A REORGANIZATION TRUSTEE, A RESULT CONSISTENT
WITH THE AIMS OF CHAPTER X AND WITH THE ELIMINATION OF A SECTION WHICH
IS ITSELF APPLICABLE TO ALL DISTRICT COURTS.  CONGRESS COULD HAVE
CARVED OUT OF SEC. 23 ONLY A NARROW EXCEPTION IN FAVOR OF THE COURT IN
WHICH THE REORGANIZATION PROCEEDINGS ARE PENDING AND THEREBY LEFT
UNCHANGED THE JURISDICTION OF OTHER COURTS OVER A TRUSTEE'S PLENARY
SUITS.  LIMITED EXCEPTIONS ARE FAMILIAR IN THE HISTORY OF SEC. 23.  BUT
CONGRESS WENT FURTHER AND ELIMINATED SEC. 23 ENTIRELY IN CHAPTER X
PROCEEDINGS.  BECAUSE OF THE COUNTRYWIDE RAMIFICATIONS OF CORPORATE
DEBTORS PLACED IN CHAPTER X REORGANIZATION, IT IS AS USUAL AS NOT FOR
THE TRUSTEE TO RESORT TO FOREIGN JURISDICTIONS FOR THE DISPOSITION OF
PLENARY SUITS.  ALLOWING THE PRIMARY COURT TO HEAR THESE SUITS WILL NOT
CHANGE THIS SITUATION, IF IT IS TRUE THAT THE PROCESS OF A
REORGANIZATION COURT DOES NOT RUN NATIONWIDE IN PLENARY CASES.  FN46
CONGRESSIONAL POLICY WOULD RECEIVE ONLY LIMITED RECOGNITION IF THE
SUSPENSION OF SEC. 23 IS INTERPRETED AS ALLOWING THE TRUSTEE ACCESS TO
ONLY THE APPOINTING COURT AND AS RESTRICTING HIS ACCESS TO ALL OTHER
DISTRICT COURTS.  FN47 

4.  OUR HOLDING IS, OF COURSE, THAT CONGRESS IN 1938 EXTENDED THE
JURISDICTION OF THE REORGANIZATION COURTS BEYOND THAT EXERCISED BY
ORDINARY BANKRUPTCY COURTS.  SECTION 2 OF THE 1898 ACT CONTAINED THE
BROAD LANGUAGE BORROWED FROM SEC. 1 OF THE ACT OF 1867.  BUT THE
EXCEPTION TO SEC. 2(A)(7) ACKNOWLEDGED THE OVERRIDING LIMITATIONS OF
SEC. 23, WHICH WAS THE EMBODIMENT OF CONGRESSIONAL POLICY TO EXCLUDE
FROM THE BANKRUPTCY COURTS MANY OF THE TRUSTEE'S PLENARY SUITS.  THAT
SAME MEANINGFUL SECTION WAS EXPRESSLY ELIMINATED IN 1938 IN THE PROCESS
OF PERFECTING A CHAPTER OF THE BANKRUPTCY ACT DEALING WITH THE
DISTINCTIVE AND SPECIAL PROCEEDINGS IN CORPORATE REORGANIZATIONS.  CF.
CONTINENTAL BANK V. ROCK ISLAND R. CO., 294 U.S. 648, 676(1935).  THIS
NEGATION OF LONG-STANDING POLICY SHOULD BE GIVEN EFFECT CONSISTENT WITH
THE AIMS OF CHAPTER X AND SHOULD NOT BE HEDGED BY JUDGE-MADE PRINCIPLES
NOT IN ACCORD WITH THOSE AIMS.  CONGRESS NEED NOT DOCUMENT ITS SPECIFIC
ACTIONS IN ELABORATE FASHION IN ORDER TO DIRECT THIS COURT'S ATTENTION
TO STATUTORY POLICY AND PURPOSE.  THE FAILURE TO PROVIDE APPROPRIATE
FANFARE FOR THE SUSPENSION OF SEC. 23 IN CHAPTER X CASES, AND FOR THE
CONSEQUENT EXPANSION OF FEDERAL JURISDICTION, HARDLY INVITES OUR
OPINION AS TO THE ADVISABILITY OF THE ACTION WHICH CONGRESS HAS TAKEN. 
JUDICIAL DRIVES TO LIMIT THE JURISDICTION OF FEDERAL COURTS SHOULD NOT
LEAD TO DECISION FALLING SHORT OF COMPLETE EFFECTUATION OF STATUTORY
SCHEME.  WITH THE LIMITATIONS OF SEC. 23 SUSPENDED, SEC. 2 CONFERS
JURISDICTION UPON ALL REORGANIZATION COURTS TO HEAR PLENARY SUITS
BROUGHT BY A CHAPTER X TRUSTEE. 

5.  PETITIONERS INSIST THAT CERTAIN CONSEQUENCES, WHICH THEY TERM
UNDESIRABLE, WILL FLOW FROM THIS DECISION.  IT IS SAID, FOR EXAMPLE,
THAT THE STATE COURTS WILL AUTOMATICALLY BE DEPRIVED OF JURISDICTION TO
HEAR A TRUSTEE'S PLENARY SUITS.  BUT WHETHER OR NOT THIS AND OTHER
SUGGESTED CONSEQUENCES WILL FOLLOW WE LEAVE FOR CONSIDERATION IN CASES
PRESENTING SUCH ISSUES FOR DECISION. 

THE DECISION OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  THE CHANDLER ACT OF 1938, 52 STAT. 840, GENERALLY REVISED THE
BANKRUPTCY ACT OF 1898, 30 STAT. 544, AS AMENDED.  SECTION 2 IN ITS
ORIGINAL FORM WAS SUBSTANTIALLY AS SET OUT IN THE TEXT EXCEPT THAT
JURISDICTION WAS CONFERRED "IN BANKRUPTCY PROCEEDINGS," INSTEAD OF "IN
PROCEEDINGS UNDER THIS ACT."  THE CHANGE IN LANGUAGE WAS MADE IN 1938. 

FN2  SECTION 23 IN FULL PROVIDES AS FOLLOWS:  "JURISDICTION OF UNITED
STATES AND STATE COURTS.  - A.  THE UNITED STATES DISTRICT COURTS SHALL
HAVE JURISDICTION OF ALL CONTROVERSIES AT LAW AND IN EQUITY, AS
DISTINGUISHED FROM PROCEEDINGS UNDER THIS ACT, BETWEEN RECEIVERS AND
TRUSTEES AS SUCH AND ADVERSE CLAIMANTS, CONCERNING THE PROPERTY
ACQUIRED OR CLAIMED BY THE RECEIVERS OR TRUSTEES, IN THE SAME MANNER
AND TO THE SAME EXTENT AS THOUGH SUCH PROCEEDINGS HAD NOT BEEN
INSTITUTED AND SUCH CONTROVERSIES HAD BEEN BETWEEN THE BANKRUPTS AND
SUCH ADVERSE CLAIMANTS. 

"B.  SUITS BY THE RECEIVER AND THE TRUSTEE SHALL BE BROUGHT OR
PROSECUTED ONLY IN THE COURTS WHERE THE BANKRUPT MIGHT HAVE BROUGHT OR
PROSECUTED THEM IF PROCEEDINGS UNDER THIS ACT HAD NOT BEEN INSTITUTED,
UNLESS BY CONSENT OF THE DEFENDANT, EXCEPT AS PROVIDED IN SECTIONS 60,
67, AND 70 OF THIS ACT." 

WHICH WERE ABOLISHED IN 1911 BY SEC. 289 OF THE JUDICIAL CODE.  36
STAT. 1167.  FORMAL AMENDMENT TO SEC. 23(A) WAS MADE IN 1926.  44 STAT.
664. 

FN3  CHAPTER X, CONTAINING THE REORGANIZATION PROVISIONS, SUPERSEDED
SEC. 77B.  SECTION 102 OF CHAPTER X PROVIDES:  "THE PROVISIONS OF
CHAPTERS I TO VII, INCLUSIVE, OF THIS ACT SHALL, INSOFAR AS THEY ARE
NOT INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS CHAPTER,
APPLY IN PROCEEDINGS UNDER THIS CHAPTER:  PROVIDED, HOWEVER, THAT
SUBDIVISION F OF SECTION 70, SHALL NOT APPLY IN SUCH PROCEEDINGS UNLESS
AN ORDER SHALL BE ENTERED DIRECTING THAT BANKRUPTCY BE PROCEEDED WITH
PURSUANT TO THE PROVISIONS OF CHAPTERS I TO VII, INCLUSIVE.  FOR THE
PURPOSES OF SUCH APPLICATION, PROVISIONS RELATING TO 'BANKRUPTS' SHALL
BE DEEMED TO RELATE ALSO TO 'DEBTORS', AND 'BANKRUPTCY PROCEEDINGS' OR
'PROCEEDINGS IN BANKRUPTCY' SHALL BE DEEMED TO INCLUDE PROCEEDINGS
UNDER THIS CHAPTER." 

FN4  THE INVESTIGATION WAS MADE PURSUANT TO THE DECISION IN COMMITTEE
FOR HOLDERS V. KENT, 143 F.2D 684(1944). 

FN5  PETITIONERS ALSO BASED THEIR MOTION TO DISMISS ON THE APPLICABLE
STATUTE OF LIMITATIONS; BUT THE DISTRICT COURT INDICATED THAT IF THERE
HAD BEEN JURISDICTION TO PROCEED, THE MOTION TO DISMISS WOULD OTHERWISE
HAVE BEEN DENIED, BECAUSE OF FACTUAL ISSUES WHICH FIRST REQUIRED
DETERMINATION. 

FN6  "PROCEEDINGS UNDER THIS CHAPTER," REFERRED TO IN SECS. 101 AND
102 OF CHAPTER X, IS SIMILARLY CONSTRUED. 

FN7  ACCORDING TO THIS VIEW THERE WOULD, IN CHAPTER X CASES, BE NO
PROVISIONS IN THE BANKRUPTCY ACT CONFERRING JURISDICTION UPON FEDERAL
COURTS TO HEAR PLENARY SUITS OTHER THAN IN SECS. 60, 67, AND 70.  A
REORGANIZATION TRUSTEE WOULD BE LEFT, WHERE HE COULD, TO TAKE ADVANTAGE
OF THE ORDINARY GROUNDS FOR FEDERAL JURISDICTION. 

FN8  14 STAT. 517.  SECTION 1 GAVE THE BANKRUPTCY COURTS ORIGINAL
JURISDICTION "IN ALL MATTERS AND PROCEEDINGS IN BANKRUPTCY" WHICH
EXTENDED "TO ALL CASES AND CONTROVERSIES ARISING BETWEEN THE BANKRUPT
AND ANY CREDITOR OR CREDITORS WHO SHALL CLAIM ANY DEBT OR DEMAND UNDER
THE BANKRUPTCY; TO THE COLLECTION OF ALL THE ASSETS OF THE BANKRUPT
...  " 

FN9  SHERMAN V. BINGHAM, 21 FED. CAS. 1270, NO. 12,762(1872); GOODALL
V. TUTTLE, 10 FED. CAS. 579, NO. 5,533(1872).  THE REQUIREMENT OF
PLENARY PROCEEDINGS, THOUGH NOT EXPRESSLY APPEARING IN THE ACT, WAS
WELL RECOGNIZED.  MARSHALL V. KNOX, 16 WALL.  551(1872); SMITH V.
MASON, 14 WALL.  419(1871). 

FN10  SHERMAN V. BINGHAM, 21 FED. CAS. 1270, NO. 12,762(1872);
GOODALL V. TUTTLE, 10 FED. CAS. 579, NO. 5,533(1872). 

FN11  THE REFERENCES TO THE ACT CONTAINED IN THE DISCUSSION OF THE
JURISDICTION OF THE DISTRICT COURTS OBVIOUSLY REFERRED TO SEC. 1; AND
SHERMAN V. BINGHAM, 21 FED. CAS. 1270, NO. 12,762(1872), WHICH
EXPRESSLY BASED UPON SEC. 1 THE JURISDICTION OF THE DISTRICT COURTS TO
HEAR PLENARY SUITS, WAS CITED WITH UNRESERVED APPROVAL.  THE PERTINENT
PASSAGE IN THE LATHROP CASE IS AS FOLLOWS: 

"THE LANGUAGE CONFERRING THIS JURISDICTION OF THE DISTRICT COURTS IS
VERY BROAD AND GENERAL.  IT IS, THAT THEY SHALL HAVE ORIGINAL
JURISDICTION IN THEIR RESPECTIVE DISTRICTS IN ALL MATTERS AND
PROCEEDINGS IN BANKRUPTCY.  THE VARIOUS BRANCHES OF THIS JURISDICTION
ARE AFTERWARDS SPECIFIED; RESULTING, HOWEVER, IN THE TWO GENERAL
CLASSES BEFORE MENTIONED.   ...  EACH COURT WITHIN ITS OWN DISTRICT MAY
EXERCISE THE POWERS CONFERRED; BUT THOSE POWERS EXTEND TO ALL MATTERS
OF BANKRUPTCY, WITHOUT LIMITATION.  ...  BUT THE EXCLUSION OF OTHER
DISTRICT COURTS FROM JURISDICTION OVER THESE PROCEEDINGS DOES NOT
PREVENT THEM FROM EXERCISING JURISDICTION IN MATTERS GROWING OUT OF OR
CONNECTED WITH THAT IDENTICAL BANKRUPTCY, SO FAR AS IT DOES NOT TRENCH
UPON OR CONFLICT WITH THE JURISDICTION OF THE COURT IN WHICH THE CASE
IS PENDING.  PROCEEDINGS ANCILLARY TO AND IN AID OF THE PROCEEDINGS IN
BANKRUPTCY MAY BE NECESSARY IN OTHER DISTRICTS WHERE THE PRINCIPAL
COURT CANNOT EXERCISE JURISDICTION; AND IT MAY BE NECESSARY FOR THE
ASSIGNEE TO INSTITUTE SUITS IN OTHER DISTRICTS FOR THE RECOVERY OF
ASSETS OF THE BANKRUPT.  THAT THE COURTS OF SUCH OTHER DISTRICTS MAY
EXERCISE JURISDICTION IN SUCH CASES WOULD SEEM TO BE THE NECESSARY
RESULT OF THE GENERAL JURISDICTION CONFERRED UPON THEM, AND IS IN
HARMONY WITH THE SCOPE AND DESIGN OF THE ACT.  THE STATE COURTS MAY
UNDOUBTEDLY BE RESORTED TO IN CASES OF ORDINARY SUITS FOR THE
POSSESSION OF PROPERTY OR THE COLLECTION OF DEBTS; AND IT IS NOT TO BE
PRESUMED THAT EMBARRASSMENTS WOULD BE ENCOUNTERED IN THOSE COURTS IN
THE WAY OF A PROMPT AND FAIR ADMINISTRATION OF JUSTICE.  BUT A UNIFORM
SYSTEM OF BANKRUPTCY, NATIONAL IN ITS CHARACTER, OUGHT TO BE CAPABLE OF
EXECUTION IN THE NATIONAL TRIBUNALS, WITHOUT DEPENDENCE UPON THOSE OF
THE STATES IN WHICH IT IS POSSIBLE THAT EMBARRASSMENTS MIGHT ARISE. 
THE QUESTION HAS BEEN QUITE FULLY AND SATISFACTORILY DISCUSSED BY A
MEMBER OF THIS COURT IN THE FIRST CIRCUIT, IN THE CASE OF SHEARMAN V.
BINGHAM, 7 BANK.  REG. 490; AND WE CONCUR IN THE OPINION THERE
EXPRESSED, THAT THE SEVERAL DISTRICT COURTS HAVE JURISDICTION OF SUITS
BROUGHT BY ASSIGNEES APPOINTED BY OTHER DISTRICT COURTS IN CASES OF
BANKRUPTCY."  91 U.S. 516, 517-18. 

FN12  SECTION 2 CREATED THE COURTS OF BANKRUPTCY AND INVESTED THEM
"WITH SUCH JURISDICTION AT LAW AND IN EQUITY AS WILL ENABLE THEM TO
EXERCISE ORIGINAL JURISDICTION IN BANKRUPTCY PROCEEDINGS ...  TO  ...
(7) CAUSE THE ESTATES OF BANKRUPTS TO BE COLLECTED, REDUCED TO MONEY
AND DISTRIBUTED, AND DETERMINE CONTROVERSIES IN RELATION THERETO,
EXCEPT AS HEREIN OTHERWISE PROVIDED ...  " 

FN13  FIRST NAT. BANK V. TITLE AND TRUST CO., 198 U.S. 280,
289(1905); BRYAN V. BERNHEIMER, 181 U.S. 188, 194(1901); BARDES V.
HAWARDEN BANK, 178 U.S. 524, 535(1900).  SECTION 23(B), AS ORIGINALLY
ENACTED, PROVIDED:  "SUITS BY THE TRUSTEE SHALL ONLY BE BROUGHT OR
PROSECUTED IN THE COURTS WHERE THE BANKRUPT, WHOSE ESTATE IS BEING
ADMINISTERED BY SUCH TRUSTEE, MIGHT HAVE BROUGHT OR PROSECUTED THEM IF
PROCEEDINGS IN BANKRUPTCY HAD NOT BEEN INSTITUTED, UNLESS BY CONSENT OF
THE PROPOSED DEFENDANT." 

FN14  "A CONSTRUCTION OF THE STATUTE OF 1898 WHICH WOULD DEPRIVE THE
FEDERAL COURTS OF JURISDICTION OF THE SUITS IN QUESTION (TRUSTEE'S SUIT
TO RECOVER PROPERTY) WOULD MAKE THE ACT OF 1898 UNPRECEDENTED AMONG
BANKRUPT ACTS."  IN RE HAMMOND, 98 F. 845, 853(1899). 

FN15  WHEN S. 1035, WHICH EVENTUALLY BECAME THE ACT OF 1898, REACHED
THE HOUSE, THE JUDICIARY COMMITTEE RECOMMENDED STRIKING OUT ALL AFTER
THE ENACTING CLAUSE AND SUBSTITUTING THE COMMITTEE'S OWN BILL.  SECTION
23 OF THE HOUSE VERSION, 31 CONG. REC. 1781(1898), SURVIVED BOTH DEBATE
AND CONFERENCE ACTION AND BECAME SEC. 23 OF THE ACT OF 1898.  IN
REVIEWING THE BILL PRELIMINARY TO DEBATE, THE CHAIRMAN OF THE HOUSE
JUDICIARY COMMITTEE EXPLAINED: 

"THE JURISDICTION OF STATE COURTS TO TRY CONTROVERSIES BETWEEN THE
TRUSTEES OF BANKRUPT ESTATES AND PARTIES CLAIMING ADVERSE INTEREST IS
NOT IN ANY WAY INTERFERED WITH. 

"SUITS BY THE TRUSTEE SHALL ONLY BE BROUGHT IN THE COURTS WHERE THE
BANKRUPT MIGHT HAVE BROUGHT THEM EXCEPT FOR THE MISFORTUNE OF HIS
BANKRUPTCY, UNLESS BY THE CONSENT OF THE PROPOSED DEFENDANT. 

"UNDER THE LAST BANKRUPTCY LAW THE LITIGATION INCIDENT TO THE
SETTLEMENT OF ESTATES WAS CONDUCTED ALMOST WHOLLY IN UNITED STATES
COURTS.  THE RESULT WAS GREAT INCONVENIENCE AND MUCH EXPENSE TO A
MAJORITY OF THE PEOPLE INTERESTED IN SUCH LITIGATION AS PRINCIPALS,
WITNESSES, AND ATTORNEYS.  SUCH WILL NOT BE THE EFFECT UNDER THIS
BILL.  IT IS PROPER THAT SUCH SHOULD NOT BE THE CASE, SPEAKING
GENERALLY, IN BEHALF OF THE ADMINISTRATION OF JUSTICE."  31 CONG. REC.
1785(1898).    FN16  IN RE WOODBURY, 98 F. 833(1900); IN RE HAMMOND, 98
F. 845(1899); LOUISVILLE TRUST CO. V. MARX, 98 F. 456(1899). 

FN17  32 STAT. 798-9. 

FN18  ID. AT 799-800.  CONGRESS LIKEWISE AMENDED SEC. 70(E), BUT BY
AN OVERSIGHT THE EXCEPTIONS MADE TO SEC. 23 WERE NOT CORRESPONDINGLY
EXTENDED.  THE OMISSION WAS CORRECTED IN 1910.  36 STAT. 840.  SEE H.
REP. NO. 511, 61ST CONG., 2D SESS. 6(1910). 

FN19  "SECTION 9:  UNDER THE LAW OF 1867, THE FEDERAL AND STATE
COURTS HAD CONCURRENT JURISDICTION OF SUITS TO RECOVER PROPERTY
FRAUDULENTLY OR PREFERENTIALLY TRANSFERRED.  BARDES V. BANK OF HAWARDEN
(IA.), 178 U.S., 524, HAS SO CONSTRUED SECTION 23 B, OF THE LAW AS TO
DENY SUCH JURISDICTION TO THE DISTRICT COURTS, SAVE WITH THE CONSENT OF
THE PROPOSED DEFENDANT.  IN COMMERCIAL CENTERS THIS AMOUNTS TO A DENIAL
OF JUSTICE, THE CALENDARS OF THE STATE COURTS BEING YEARS BEHINDHAND;
WHILE, GROWING OUT OF BARDES V. BANK, HAVE COME DECISIONS WHICH HAVE
CRIPPLED THE ADMINISTRATION OF THE LAW TO A MARKED DEGREE.  (SEE IN RE
WARD (MASS.), 5 AM. B.R., 215; MUELLER V. NUGENT (KY.), 105 FED., 581;
THIS LATTER, HOWEVER, RECENTLY REVERSED BY THE SUPREME COURT.)  THERE
IS A VERY GENERAL DEMAND FOR A RETURN TO THE POLICY OF THE LAW OF
1867.  WERE IT NOT FOR SECTION 23 B, SECTION 2(7), WOULD PROBABLY
CONFER AMPLE JURISDICTION ON THE DISTRICT COURTS.  THE CHANGE IN
OF IT ALL SUITS WHICH CAN, UNDER THE SPECIFIC WORDS OF THE LAW, BE
BROUGHT TO RECOVER PROPERTY, AND THIS MERELY BY REFERRING TO THE THREE
DOUBT, ALSO, SECTIONS 13 AND 16 OF THE BILL CONFER CONCURRENT
JURISDICTION OF ALL SUCH SUITS ON THE STATE COURTS AND THE FEDERAL
DISTRICT COURTS, BY ADDING APPROPRIATE WORDS TO EACH OF THE THREE
1698, 57TH CONG., 1ST SESS. 7(1902). 

SUBSTANTIALLY THE SAME EXPLANATION WAS GIVEN ON THE FLOOR OF THE
HOUSE BY REPRESENTATIVE GEORGE W. RAY, CHAIRMAN OF THE JUDICIARY
COMMITTEE.  35 CONG. REC. 6941, 6942(1902). 

REPRESENTATIVE RAY, WE NOTE, WAS SECOND RANKING MEMBER OF THE
JUDICIARY COMMITTEE AT THE TIME OF THE PASSAGE OF THE 1898 ACT.  IT WAS
THAT COMMITTEE WHICH DRAFTED SECS. 2 AND 23 IN SUBSTANTIALLY THE FORM
APPEARING IN THE 1898 ACT.  SEE NOTE 15, SUPRA.  REPRESENTATIVE RAY WAS
ALSO A MEMBER OF THE HOUSE CONFERENCE COMMITTEE, AND IT WAS IN
CONFERENCE THAT THE ACT OF 1898 WAS FINALLY DRAFTED AND THE SERIOUS
DIFFERENCES BETWEEN THE HOUSE AND SENATE WERE RESOLVED. 

FN20  HARRIS V. FIRST NAT. BANK, 216 U.S. 382(1910). 

FN21  KELLEY V. GILL, 245 U.S. 116(1917); IN RE ROMAN, 23 F.2D
556(1928); LYNCH V. BRONSON, 177 F. 605(1910). 

FN22  WHITNEY V. WENMAN, 198 U.S. 539(1905); MUELLER V. NUGENT, 184
U.S. 1(1902); BRYAN V. BERNHEIMER, 181 U.S. 188(1901); WHITE V.
SCHLOERB, 178 U.S. 542(1900).  "BUT IN NO CASE WHERE IT LACKED
POSSESSION, COULD THE BANKRUPTCY COURT  ...  ADJUDICATE IN A SUMMARY
PROCEEDING THE VALIDITY OF A SUBSTANTIAL ADVERSE CLAIM.  IN THE ABSENCE
OF POSSESSION, THERE WAS UNDER THE BANKRUPTCY ACT OF 1898, AS
ORIGINALLY PASSED, NO JURISDICTION, WITHOUT CONSENT, TO ADJUDICATE THE
CONTROVERSY EVEN BY A PLENARY SUIT."  TAUBEL-SCOTT-KITZMILLER CO. V.
FOX, 264 U.S. 426, 433-34(1924). 

FN23  MATTHEW V. COPPIN, 32 F.2D 100, 101(1929); SEE STIEFEL V. 14TH
STREET REALTY CORP., 48 F.2D 1041, 1043(1931); COYLE V. DUNCAN SPANGLER
COAL CO., 288 F. 897, 901(1923); PIANO CO. V. FIRST WISCONSIN TRUST
CO., 283 F. 904, 906(1922); DE FRIECE V. BRYANT, 232 F. 233, 236(1916);
MCELDOWNEY V. CARD, 193 F. 475, 479(1911).  CONTRA:  BEELER V.
SCHUMACHER, 71 F.2D 831(1934); TOLEDO FENCE & POST CO. V. LYONS, 290 F.
637, 645(1923). 

FN24  "THE CONGRESS, BY VIRTUE OF ITS CONSTITUTIONAL AUTHORITY OVER
BANKRUPTCIES, COULD CONFER OR WITHHOLD JURISDICTION TO ENTERTAIN SUCH
SUITS AND COULD PRESCRIBE THE CONDITIONS UPON WHICH THE FEDERAL COURTS
SHOULD HAVE JURISDICTION.  ...  EXERCISING THAT POWER, THE CONGRESS
PRESCRIBED IN SEC. 23B THE CONDITION OF CONSENT ON THE PART OF THE
DEFENDANT SUED BY THE TRUSTEE."  SCHUMACHER V. BEELER, 293 U.S. 367,
374(1934). 

FN25  THE CASES DECIDED UNDER THE 1867 ACT AND REFERRED TO IN NOTES
10-11, SUPRA, RECOGNIZED THE BROAD SCOPE OF LANGUAGE SIMILAR TO THAT OF
SEC. 2; AND CASES ARISING UNDER THE 1898 ACT AND DECIDED BEFORE BARDES
V. HAWARDEN BANK, 178 U.S. 524(1900), BASED UPON SEC. 2 THE
JURISDICTION OF THE FEDERAL COURTS TO ENTERTAIN PLENARY SUITS TO
RECOVER PROPERTY ADVERSELY HELD.  SEE NOTE 16, SUPRA. 

LATER CASES HAVE RECOGNIZED THE OVERRIDING CONSEQUENCE OF SEC. 23. 
"SECTION 2, CLAUSE 7, CONFERS UPON THE COURT OF BANKRUPTCY JURISDICTION
TO 'CAUSE THE ESTATES OF BANKRUPTS TO BE COLLECTED, REDUCED TO MONEY
AND DISTRIBUTED, AND DETERMINE CONTROVERSIES IN RELATION THERETO,
EXCEPT AS HEREIN OTHERWISE PROVIDED.'  BUT SEC. 23-B PROHIBITS THE
TRUSTEE (WITH EXCEPTIONS NOT HERE APPLICABLE) FROM PROSECUTING, WITHOUT
THE CONSENT OF THE PROPOSED DEFENDANT, A SUIT IN A COURT OTHER THAN
THAT IN WHICH THE BANKRUPT MIGHT HAVE BROUGHT IT, HAD BANKRUPTCY NOT
INTERVENED."  KELLEY V. GILL, 245 U.S. 116, 119(1917).  "THERE IS
PLAINLY A CONTROVERSY IN RELATION TO THE ESTATE OF A BANKRUPT, AND
SUBDIVISION 7 OF SECTION 2 WOULD CONFER JURISDICTION IF IT WERE NOT FOR
THE LIMITING WORDS, 'EXCEPT AS HEREIN OTHERWISE PROVIDED.'"  LYNCH V.
BRONSON, 160 F. 139, 140(1908).  SEE ALSO LOWENSTEIN V. REIKES, 54 F.2D
481, 485(1931)(DISSENTING OPINION), AND THE ANALYSIS OF THE INTERPLAY
OF SECS. 2 AND 23 IN ROSS, FEDERAL JURISDICTION IN SUITS BY TRUSTEES IN
BANKRUPTCY, 20 IOWA L. REV. 565(1935), WHICH WAS WRITTEN AFTER THE
BEELER DECISION. 

FN26  SCHUMACHER V. BEELER, 293 U.S. 367(1934).  SEE P. 652 AND NOTE
24, SUPRA.  IN TILTON V. MODEL TAXI CORP., 112 F.2D 86(1940), A 77B
CASE, THE JURISDICTION OF THE DISTRICT COURT TO ENTERTAIN A PLENARY
SUIT WAS BASED UPON CONSENT. 

FN27  THE SENATE REPORT SAID IN REGARD TO THE COMMITTEE'S SUGGESTED
AMENDMENTS TO SEC. 102: "THE PROPOSED AMENDMENT AMPLIFIES THE PROVISION
WITH REFERENCE TO APPLICABILITY SO AS TO LEAVE NO DOUBT THAT THE
PROVISIONS OF CHAPTERS I TO VII ARE ALONE TO BE DEEMED APPLICABLE,
EXCEPT WHERE INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THE
CHAPTER."  S. REP. NO. 1916, 75TH CONG., 3D SESS. 6(1938). 

THE AMENDMENTS TO SEC. 102 WERE AGREED TO WITHOUT COMMENT ON THE
FLOOR OF THE SENATE, AND WERE SIMILARLY ACCEPTED BY THE HOUSE.  83
CONG. REC. 8697, 9103, 9107, 9110(1938). 

FN28  THE RECOMMENDATION WAS MADE BY MR. JOHN GERDES.  SEE HEARINGS
BEFORE SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, U.S. SENATE, ON
H.R. 8046, 75TH CONG., 2D SESS. 77(1938).  MR. GERDES DID NOT AT THIS
TIME EXPLAIN THE REASONS FOR THE SUGGESTED SUSPENSION OF SEC. 23.  HE
STATED AS FOLLOWS: 

"CHAPTER X IS NOT INTENDED TO BE SELF-SUFFICIENT.  ALL PROVISIONS OF
THE GENERAL BANKRUPTCY ACT ARE APPLICABLE TO PROCEEDINGS UNDER CHAPTER
X, EXCEPT SUCH PROVISIONS ARE INCONSISTENT WITH EXPRESS PROVISIONS IN
CHAPTER X. SOME PROVISIONS OF THE GENERAL ACT ARE CLEARLY INCONSISTENT
WITH THE CORPORATE REORGANIZATION PROVISIONS AND ARE THEREFORE
INAPPLICABLE.  OTHER PROVISIONS ARE CLEARLY APPLICABLE.  HOWEVER, THERE
ARE CERTAIN SECTIONS WHICH BY THEIR NATURE PERMIT OF DOUBT AS TO
WHETHER OR NOT THEY ARE APPLICABLE.  SECTION 64 OF THE GENERAL
BANKRUPTCY ACT, FOR EXAMPLE, PROVIDES FOR A FIXED PRIORITY IN THE
PAYMENT OF CLAIMS.  THIS SECTION DEALS SOLELY WITH UNSECURED CLAIMS,
ONLY UNSECURED CLAIMS BEING AFFECTED BY BANKRUPTCY.  TO APPLY IT IN
CORPORATE REORGANIZATIONS - WHERE SECURED AS WELL AS UNSECURED CLAIMS
ARE DEALT WITH - WOULD CAUSE GREAT CONFUSION.  TO MAKE IT CLEAR THAT
PROVIDES THAT 64 SHALL NOT BE APPLICABLE TO CHAPTER X. THE PRIORITIES
UNDER CHAPTER X WOULD THEREFORE BE THOSE USED IN EQUITY RECEIVERSHIPS. 
THAT IS THE PRESENT PRACTICE UNDER 77B, WHICH EXPRESSLY PROVIDES THAT
HERE WE MERELY ADOPT THE PRACTICE WHICH IS ALREADY IN EXISTENCE UNDER

"IN THIS ENUMERATION OF SECTIONS AND SUBSECTIONS WHICH ARE NOT
APPLICABLE, WE INCLUDE ONLY THOSE AS TO WHICH THERE MAY BE REASONABLE
DOUBT.  THE SECTIONS WHICH WE ENUMERATE ARE 23, 57(H), 57(N), 64, AND
70(F).  WE PROPOSE THAT SECTION 102 BE AMENDED TO PROVIDE THAT THESE
CHAPTER X." 

A REPRESENTATIVE OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW
YORK ALSO LISTED SEC. 23 AMONG THOSE SECTIONS WHICH "HAVE NO
APPLICABILITY TO A REORGANIZATION PROCEDURE."  ID. AT 37.  AND THE
SPOKESMAN FOR THE PHILADELPHIA COURT PLAN COMMITTEE SUGGESTED AMENDING
SEC. 23 TO GIVE ORDINARY BANKRUPTCY COURTS MORE EFFECTIVE POWERS TO
DEAL WITH FRAUDULENTLY TRANSFERRED OR CONCEALED ASSETS.  ID. AT 26. 

FN29  WHITE V. EWING, 159 U.S. 36(1895); SEE RIEHLE V. MARGOLIES, 279
U.S. 218, 223(1929). 

FN30  FINLETTER, PRINCIPLES OF CORPORATE REORGANIZATION 185
87(1937). 

FN31  2 GERDES, CORPORATE REORGANIZATIONS 1465(1936).  THE COURTS HAD
NOT BEEN SQUARELY FACED WITH THE PROBLEM AT THE TIME CONGRESS WAS
CONSIDERING THE 1938 REVISION OF THE BANKRUPTCY ACT.  MATTER OF UNITED
SPORTWEAR CO., 28 AM. B.R. (N.S.)  456(1935), HAD SUGGESTED THAT SEC.
23 WAS APPLICABLE, WHILE THE CONTRARY INTIMATION IS EVIDENT IN THOMAS
V. WINSLOW, 11 F.SUPP.  839(1935).  SEE ALSO NOTE, 49 HARV. L. REV.
797(1936). 

FN32  SEC. 156.  THE REQUIREMENT OF A DISINTERESTED TRUSTEE WAS ONE
OF THE MAJOR SUBSTANTIVE ADDITIONS WHICH CHAPTER X MADE TO SEC. 77B. 
S. REP. NO. 1916, 75TH CONG., 3D SESS. 19(1938). 

FN33  SECS. 156 AND 158. 

FN34  THE IMPORTANT DEFECTS OF 77B REORGANIZATIONS AND THE REMEDY
PROVIDED IN CHAPTER X ARE ANALYZED IN S. REP. NO. 2084, 75TH CONG., 3D
SESS. 1-3(1938). 

FN35  SECS. 167(6) AND 169. 

FN36  SECTION 167 IN PART PROVIDES:  "THE TRUSTEE UPON HIS
APPOINTMENT AND QUALIFICATION - 

"(1)  SHALL, IF THE JUDGE SHALL SO DIRECT, FORTHWITH INVESTIGATE THE
ACTS, CONDUCT, PROPERTY, LIABILITIES, AND FINANCIAL CONDITION OF THE
DEBTOR, THE OPERATION OF ITS BUSINESS AND THE DESIRABILITY OF THE
CONTINUANCE THEREOF, AND ANY OTHER MATTER RELEVANT TO THE PROCEEDING OR
TO THE FORMULATION OF A PLAN, AND REPORT THEREON TO THE JUDGE; 

"(2)  MAY, IF THE JUDGE SHALL SO DIRECT, EXAMINE THE DIRECTORS AND
OFFICERS OF THE DEBTOR AND ANY OTHER WITNESSES CONCERNING THE FOREGOING
MATTERS OR ANY OF THEM; 

"(3)  SHALL REPORT TO THE JUDGE ANY FACTS ASCERTAINED BY HIM
PERTAINING TO FRAUD, MISCONDUCT, MISMANAGEMENT AND IRREGULARITIES, AND
TO ANY CAUSES OF ACTION AVAILABLE TO THE ESTATE  ...  " 

FN37  S. REP. NO. 1916, 75TH CONG., 3D SESS. 29(1938). 

FN38  IBID. 

FN39  "THESE FUNCTIONS OF THE INDEPENDENT TRUSTEE APPOINTED IN THE
LARGER CASES ARE DIFFICULT TO OVEREMPHASIZE.  ...  INVESTORS MUST BE
AFFORDED A 'FOCAL POINT' FOR ORGANIZATION."  H.REP.  NO. 1409, 75TH
CONG., 1ST SESS. 43(1937). 

FN40  "THE BANKRUPTCY ACT OF 1898, IN RESPECT TO THE MATTERS NOW
UNDER CONSIDERATION, WAS A RADICAL DEPARTURE FROM THE ACT OF 1867, IN
THE EVIDENT PURPOSE OF CONGRESS TO LIMIT THE JURISDICTION OF THE UNITED
STATES COURTS IN RESPECT TO CONTROVERSIES WHICH DID NOT COME SIMPLY
WITHIN THE JURISDICTION OF THE FEDERAL COURTS AS BANKRUPTCY COURTS, AND
TO PRESERVE, TO A GREATER EXTENT THAN THE FORMER ACT, THE JURISDICTION
OF THE STATE COURTS OVER ACTIONS WHICH WERE NOT DISTINCTLY MATTERS AND
PROCEEDINGS IN BANKRUPTCY."  BUSH V. ELLIOTT, 202 U.S. 477, 479
80(1906).  AND SEE PP. 649 AND 650, NOTES 14-15, SUPRA. 

FN41  SECTION 1(10) DEFINES THE COURTS OF BANKRUPTCY AS FOLLOWS:
"'COURTS OF BANKRUPTCY' SHALL INCLUDE THE DISTRICT COURTS OF THE UNITED
STATES AND OF THE TERRITORIES AND POSSESSIONS TO WHICH THIS ACT IS OR
MAY HEREAFTER BE APPLICABLE, AND THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT OF COLUMBIA"; BABBITT V. DUTCHER, 216 U.S.
102(1910).  AND SEE SEC. 2(A)(20) OF THE BANKRUPTCY ACT. 

FN42  OUR CONCLUSION IS NOT CHANGED BY THE LANGUAGE OF SEC. 23(A),
WHICH AS DRAWN IN 1898, 30 STAT. 544, 552, WAS DESIGNED TO GRANT A
LIMITED JURISDICTION TO CIRCUIT COURTS OVER "CONTROVERSIES AT LAW AND
IN EQUITY," AS DISTINGUISHED FROM "PROCEEDINGS IN BANKRUPTCY," AND
WHICH SEEMS ONLY TO HAVE RECOGNIZED THE RULE EXISTING UNDER THE 1867
ACT THAT CERTAIN BANKRUPTCY MATTERS WERE THE EXCLUSIVE CONCERN OF THE
BANKRUPTCY COURT.  IF "PROCEEDINGS" AS USED IN SEC. 23(A) DENOTED THOSE
INSTANCES IN WHICH SUMMARY JURISDICTION WAS PROPER, TO FIND THAT
"PROCEEDINGS" IN SEC. 2 HAS NO SUCH PRECISE MEANING SIMPLY EXEMPLIFIES
THE VARIETY OF WAYS IN WHICH "PROCEEDINGS" HAS BEEN EMPLOYED IN THE
BANKRUPTCY STATUTE.  SECTION 11(E) AUTHORIZES TRUSTEES TO INSTITUTE
"PROCEEDINGS IN BEHALF OF THE ESTATE UPON ANY CLAIM" AND REFERS TO "ANY
PROCEEDING, JUDICIAL OR OTHERWISE."  AND SECS. 60(B), 67(E) AND 70(E)
SPEAK OF "PROCEEDINGS" IN CONNECTION WITH PLENARY.  IN CHAPTER X
ITSELF, SECS. 101 AND 102 REFER TO "PROCEEDINGS UNDER THIS CHAPTER." 
THIS TERM MUST EXTEND TO PLENARY SUITS, FOR OTHERWISE SEC. 23, WHICH
DEALS ONLY WITH PLENARY SUITS, WOULD NOT BE SUSPENDED AT ALL. 
SIGNIFICANT TOO IS THAT "BANKRUPTCY PROCEEDINGS" IN SEC. 2 WAS IN 1938
CHANGED TO "PROCEEDINGS UNDER THIS ACT" IN ORDER THAT THE JURISDICTION
GRANTED BY SEC. 2 WOULD EXTEND TO "PROCEEDINGS" UNDER THE NEW DEBTOR
RELIEF CHAPTERS, INCLUDING CHAPTER X. 

FN43  6 COLLIER ON BANKRUPTCY 673(14TH ED. 1947.) 

FN44  SECTION 115 PROVIDES:  "UPON THE APPROVAL OF A PETITION, THE
COURT SHALL HAVE AND MAY, IN ADDITION TO THE JURISDICTION, POWERS, AND
DUTIES HEREINABOVE AND ELSEWHERE IN THIS CHAPTER CONFERRED AND IMPOSED
UPON IT, EXERCISE ALL THE POWERS, NOT INCONSISTENT WITH THE PROVISIONS
OF THIS CHAPTER, WHICH A COURT OF THE UNITED STATES WOULD HAVE IF IT
HAD APPOINTED A RECEIVER IN EQUITY OF THE PROPERTY OF THE DEBTOR ON THE
GROUND OF INSOLVENCY OR INABILITY TO MEET ITS DEBTS AS THEY MATURE." 
FN45  THE SIMILAR "POWERS" PROVISION IN SEC. 77B HAS BEEN VIEWED AS NON
JURISDICTIONAL.  IN RE STANDARD GAS & ELECTRIC CO., 119 F.2D 658,
662(1941); SEE IN RE PRIMA CO., 98 F.2D 952, 958(1938).  THESE CASES
WERE DECIDED AFTER THE PASSAGE OF THE CHANDLER ACT AND CONSIDERED SEC.
23 FULLY APPLICABLE IN PENDING 77B PROCEEDINGS.  IN TILTON V. MODEL
TAXI CORP., 112 F.2D 86(1940), SEC. 23 WAS CONSIDERED APPLICABLE IN
SEC. 77B PROCEEDINGS SO AS TO PERMIT JURISDICTION OF THE DISTRICT COURT
TO BE BASED UPON A DEFENDANT'S CONSENT.  AND SEE THOMPSON V. TERMINAL
SHARES, 104 F.2D 1(1939), FOR A TREATMENT OF A SIMILAR PROVISION
CONTAINED IN SEC. 77.  ON THE OTHER HAND, SEC. 115 HAS BEEN INTERPRETED
AS JURISDICTIONAL.  IN RE CUYAHOGA FINANCE CO., 136 F.2D 18(1943); SEE
WARDER V. BRADY, 115 F.2D 89, 93-94(1940).  OTHER COURTS HAVE THOUGHT
THE SUSPENSION OF SEC. 23 IN CHAPTER X CASES WOULD GIVE THE
REORGANIZATION COURT JURISDICTION TO HEAR PLENARY SUITS.  SEE CLARKE V.
FITCH, CCH BANKR.  LAW SER.  P53,805(1942); TILTON V. MODEL TAXI CORP.,
SUPRA AT 88. 

FN46  IT HAS BEEN SO HELD.  IN RE STANDARD GAS & ELECTRIC CO., 119
F.2D 658(1941); BOVAY V. H.M. BYLLESBY & CO., 88 F.2D 990(1937); UNITED
STATES V. TACOMA ORIENTAL S.S. CO., 86 F.2D 363(1936); CLARKE V. FITCH,
CCH BANKR.  LAW SER.  P53,805(1942). 

FN47  THE CHAPTER X CASES CITED IN NOTE 45, SUPRA, DID NOT REACH THE
QUESTION OF WHETHER COURTS OTHER THAN THE PRIMARY COURT WOULD HAVE
JURISDICTION TO HEAR PLENARY SUITS WHERE THE LATTER HAD JURISDICTION OF
SUCH A SUIT BUT COULD NOT EXERCISE IT BECAUSE OF PERSONAL SERVICE OR
VENUE DIFFICULTIES.  NOR DID MR. GERDES, WHO CONSTRUED THE SUSPENSION
OF SEC. 23 AS ESTABLISHING, BY WAY OF SEC. 115, THE JURISDICTION OF THE
REORGANIZATION COURT TO HEAR PLENARY SUITS.  GERDES, CORPORATE
REORGANIZATIONS:  CHANGES EFFECTED BY CHAPTER X OF THE BANKRUPTCY ACT,
52 HARV. L. REV. 1, 21(1938).  BUT IT WAS HIS OPINION EVEN UNDER SEC.
77B, WHERE THE APPLICABILITY OF SEC. 23 WAS LEFT IN DOUBT, THAT ALL
REORGANIZATION COURTS, NOT JUST THE DOMICILIARY COURT, HAD JURISDICTION
TO HEAR PLENARY SUITS BROUGHT BY THE TRUSTEE, EVEN THOUGH THE USUAL
GROUNDS FOR FEDERAL JURISDICTION WERE LACKING.  2 GERDES, CORPORATE
REORGANIZATIONS 1480, 1513-14, 1525-26(1936). 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE JACKSON JOINS,
DISSENTING. 

ON THE SURFACE THIS APPEARS TO BE MERELY A BANKRUPTCY CASE RAISING
TECHNICAL QUESTIONS OF FEDERAL JURISDICTION.  BUT THE ANSWERS TO THESE
QUESTIONS HAVE FAR-REACHING IMPORT.  THEY INVOLVE THE DISTRIBUTION OF
JUDICIAL POWER AS BETWEEN UNITED STATES AND STATE COURTS, AND THUS
CONCERN FEDERAL-STATE RELATIONS GENERALLY.  MORE IMMEDIATELY, INASMUCH
AS THE ALLOWABLE SCOPE OF THE BUSINESS OF THE FEDERAL COURTS IS IN
CONTROVERSY, A PROPER DISPOSITION OF THE CASE BEARS UPON THE QUALITY OF
THE WORK OF THOSE COURTS AND OF THIS COURT IN PARTICULAR. 

THE COURT MAKES A SHIFT IN THE DISTRIBUTION OF JUDICIAL POWER BETWEEN
STATE AND FEDERAL COURTS WHICH HAS PREVAILED FOR HALF A CENTURY.  SUCH
A BREAK WITH THE PAST IS NOT REQUIRED BY WHAT CONGRESS HAS WRITTEN NOR
BY ANY INFERENCE DRAWN FROM DISCLOSED CONGRESSIONAL POLICIES.  ON THE
CONTRARY, I BELIEVE THAT THE RESULT REACHED IS REPELLED BY EVERY
CONSIDERATION RELEVANT TO THE PROPER CONSTRUCTION OF THE STATUTORY
MATERIALS BY WHICH THE JURISDICTION OF THE FEDERAL COURTS IS TO BE
DETERMINED. 

IN 1867 CONGRESS GRANTED JURISDICTION TO THE THEN LOWER FEDERAL
COURTS OVER SUITS ON CLAIMS OWING TO ONE WHOSE ESTATE WAS ADMINISTERED
IN BANKRUPTCY, THOUGH THE CLAIMS WERE BASED WHOLLY ON LOCAL LAW AND
WERE DEVOID OF ANY FEDERAL ASPECT WHICH WOULD GIVE A FEDERAL COURT
JURISDICTION WERE THE CREDITOR NOT IN BANKRUPTCY.  THIS WAS ANOTHER ONE
OF THOSE ENACTMENTS OF THE RECONSTRUCTION PERIOD WHEN THE INFLUENCES
TOWARD EXPANSION OF FEDERAL JURISDICTION WERE AT FLOOD-TIDE.  AS PART
OF THE RECESSION FROM THIS RECONSTRUCTION TENDENCY CONGRESS, IN THE
BANKRUPTCY ACT OF 1898, WITHDREW FROM THE FEDERAL COURTS SUITS THAT
RESTED SOLELY ON LOCAL LAW EVEN THOUGH THEY INVOLVED CLAIMS ASSERTED ON
BEHALF OF ONE WHOSE ESTATE WAS BEING ADMINISTERED IN THE BANKRUPTCY
COURT.  BY A TENUOUS PROCESS OF IMPLICATION THE COURT NOW CONCLUDES
THAT CONGRESS, THROUGH THE CHANDLER ACT OF 1938, ENLARGED FEDERAL
JURISDICTION IN ONE ASPECT OF THE BANKRUPTCY LAW, THOUGH NEITHER THE
TERMS OF THE LEGISLATION, NOR ITS CONTEXT, NOR ITS LEGISLATIVE HISTORY,
NOR CONSIDERATIONS OF POLICY HERETOFORE SUGGESTED, CALL FOR SUCH
CONSTRUCTION, WHILE THE HISTORY AND STRUCTURE OF THE LEGISLATION, ITS
JUDICIAL INTERPRETATION, REGARD FOR CONGRUITY IN FINDING MEANING, AND
THE LARGER CLAIMS OF THE FEDERAL JUDICIAL SYSTEM, SUPPORT A DIFFERENT
READING OF THE STATUTE.  THE LARGE ASSUMPTIONS OF THE DECISION ARE THAT
BY INDIRECTION AND WITHOUT MANIFESTED DESIGN CONGRESS REVERSED ITS
PREVAILING POLICY OF LIMITING FEDERAL JURISDICTION AND PRESERVING A
PROPER BALANCE BETWEEN FEDERAL AND STATE COURTS; THAT CONGRESS DEVIATED
FROM A PRINCIPLE OF OUR FEDERALISM ESPECIALLY RESPECTED IN RECENT
TIMES, ACCORDING TO WHICH CLAIMS ARISING UNDER STATE LAW SHALL BE TRIED
UNDER LOCAL TRIAL PROCEDURE IN THE LOCAL COURTS; THAT CONGRESS HAS
DEPARTED FROM A SETTLED POLICY OF FIFTY YEARS UNIFORMLY APPLICABLE IN
BANKRUPTCY PROCEEDINGS AND WHICH NOW CONTINUES AS TO ALL OTHER
PROCEEDINGS IN BANKRUPTCY, ALTHOUGH THIS ESTABLISHED POLICY OF LEAVING
LOCAL CLAIMS TO THE STATE COURTS DOES NOT AT ALL INTERFERE WITH THOSE
AIMS FOR EFFECTIVE REORGANIZATION THROUGH USE OF THE BANKRUPTCY POWER
WHICH GAVE RISE TO CHAPTER X. 

1.  THE FACTS IN THIS CASE ARE NOT IN DISPUTE.  THE CENTRAL STATES
ELECTRIC CORPORATION FILED IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA A VOLUNTARY PETITION FOR REORGANIZATION UNDER
CHAPTER X OF THE BANKRUPTCY ACT.  WITH THE CONSENT OF THE
REORGANIZATION COURT, RESPONDENTS, AS TRUSTEES, BROUGHT THIS SUIT IN
THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ON BEHALF OF
THE CORPORATION FOR AN ACCOUNTING AND DAMAGES AGAINST ITS OFFICERS AND
DIRECTORS FOR ALLEGED FRAUD AND MISMANAGEMENT.  THE DISTRICT COURT
FOUND WANT OF JURISDICTION, BUT WAS REVERSED BY THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT.  159 F.2D 67.  THIS COURT NOW AFFIRMS
THE CIRCUIT COURT OF APPEALS AND HOLDS THAT A CHAPTER X TRUSTEE MAY
BRING THIS PLENARY SUIT IN PERSONAM IN A FEDERAL DISTRICT COURT NOT THE
REORGANIZATION COURT, ALTHOUGH NEITHER DIVERSITY OF CITIZENSHIP NOR
OTHER GROUND OF FEDERAL JURISDICTION EXISTS. 

NO DOUBT CONGRESS COULD AUTHORIZE SUCH A SUIT.  SEE SCHUMACHER V.
BEELER, 293 U.S. 367, 374.  NOR IS THERE ANY DOUBT THAT CONGRESS HAS
NOT CONFERRED UPON THE DISTRICT COURTS THE POWER TO ENTERTAIN SUCH A
SUIT BY AN ORDINARY BANKRUPTCY TRUSTEE.  SECTION 23 OF THE BANKRUPTCY
ACT SPECIFICALLY LIMITS PLENARY JURISDICTION TO A FEW ENUMERATED CASES
(OF WHICH THIS IS NOT ONE), OR WHERE DEFENDANT CONSENTS.  THE COURT
FINDS, HOWEVER, THAT CONGRESS, BY MAKING SEC. 23 INAPPLICABLE TO
CHAPTER X PROCEEDINGS, OPENED ALL THE FEDERAL COURTS TO PLENARY SUITS
BY A CHAPTER X TRUSTEE.  TO DETERMINE THE SIGNIFICANCE OF THE
INAPPLICABILITY OF SEC. 23 TO CHAPTER X PROCEEDINGS IT IS NECESSARY TO
CONSIDER THE AFFILIATIONS BETWEEN THE BANKRUPTCY ACT OF 1898 AND THE
CHANDLER ACT.  THAT IN TURN MAKES IT NECESSARY TO EXAMINE THE ACT OF
1898 IN RELATION TO ITS PREDECESSOR, THE ACT OF 1867.  THESE THREE
ENACTMENTS - THE BANKRUPTCY ACT OF 1867, THE BANKRUPTCY ACT OF 1898,
AND THE BANKRUPTCY ACT OF 1938 - ARE AN INTERRELATED PROCESS OF
LEGISLATION.  THE ROLE OF SEC. 23 CANNOT BE PROPERLY ASSESSED MERELY BY
A TEXTUAL READING, OR BY ASCERTAINING ITS PRESENCE OR ABSENCE IN THESE
THREE ACTS.  IT MUST BE PLACED IN THE CONTEXT OF THE HISTORY OF THE ACT
OF 1867 AND OF THE ACT OF 1898, AND THE RELATION OF THAT HISTORY TO THE
AIMS OF THE CHANDLER ACT. 

2.  TO UNDERSTAND THE FULL IMPORT OF THE ACT OF 1867, SO FAR AS NOW
RELEVANT, IT WILL BEAR REPETITION THAT IT REFLECTED THE EXPANSIONIST
TREND IN FEDERAL JURISDICTION AFTER THE CIVIL WAR.  STATUTE AFTER
STATUTE GAVE TO THE FEDERAL COURTS JURISDICTION OVER CASES WHICH HAD
PREVIOUSLY BEEN LEFT ENTIRELY TO STATE TRIBUNALS, AND THIS COURT GAVE A
BROAD CONSTRUCTION TO SUCH STATUTES.  THE BANKRUPTCY ACT OF 1867 GAVE
TO ALL DISTRICT AND CIRCUIT COURTS CONCURRENT JURISDICTION OVER SUITS
"BY THE ASSIGNEE IN BANKRUPTCY AGAINST ANY PERSON CLAIMING AN ADVERSE
INTEREST" IN THE ESTATE.  SECTION 2 OF THE ACT OF MARCH 2, 1867, 14
STAT. 517, 518.  THIS PROVISION WAS CONSTRUED IN LATHROP V. DRAKE, 91
U.S. 516.  MR. JUSTICE BRADLEY, WITH CHARACTERISTIC CLARITY,
DISTINGUISHED BETWEEN "JURISDICTION AS A COURT OF BANKRUPTCY OVER THE
PROCEEDINGS IN BANKRUPTCY  ...  (AND) JURISDICTION, AS AN ORDINARY
COURT, OF SUITS AT LAW OR IN EQUITY BROUGHT BY OR AGAINST THE ASSIGNEE
IN REFERENCE TO ALLEGED PROPERTY OF THE BANKRUPT, OR TO CLAIMS ALLEGED
TO BE DUE FROM OR TO HIM."  91 U.S. AT 517.  BUT THE TERMS OF THE ACT
WERE READ TO CONFER THE LATTER JURISDICTION ON THE LOWER FEDERAL
COURTS.  IT IS WORTH NOTING THAT MR. JUSTICE BRADLEY WAS A WELL-KNOWN
EXPONENT OF EXPANSIVE FEDERAL JURISDICTION.  SEE, E.G., HIS DISSENTING
OPINION IN MURDOCK V. MEMPHIS, 20 WALL.  590, 639. 

3.  THE BUSINESS WHICH THIS BROAD CONSTRUCTION OF THE ACT OF 1867
BROUGHT TO THE FEDERAL COURTS, TOGETHER WITH THAT FROM OTHER SOURCES,
LED TO THE OVERBURDENING OF THEIR DOCKETS, AND INEVITABLY OF THE
DOCKETS OF THIS COURT, AND GAVE RISE TO THE VARIOUS MOVEMENTS FOR THEIR
RELIEF.  THE HISTORY OF THE FEDERAL COURTS IS TO A CONSIDERABLE MEASURE
A HISTORY OF THE RISE AND FALL OF THE SCOPE OF THE JURISDICTION GIVEN
TO THEM BY CONGRESS.  NOT TO TAKE ACCOUNT OF THESE UNDERLYING FACTORS
IN THE CONSTRUCTION OF JUDICIARY ACTS IS TO LEAVE OUT THE MEANING IN
THE INTERSTICES OF THE WORDS OF ENACTMENTS.  THE ACT OF 1898 EXPLICITLY
REVEALS THE IMPORTANT SHIFT IN EMPHASIS THAT HAD TAKEN PLACE WITHIN
THIRTY YEARS IN THE DISTRIBUTION BETWEEN STATE AND FEDERAL COURTS OF
THE JUDICIAL POWER AT THE DISPOSAL OF CONGRESS.  BY 1898 THE
EXPANSIONIST TREND IN FEDERAL JURISDICTION HAD RECEDED.  THE MOVEMENT
WAS TOWARD A CURTAILMENT FOR AN OVERBURDENED JUDICIARY.  THE NEW
BANKRUPTCY ACT ALSO SHOWED THE RECESSION. 

THE ACT OF 1898 WAS NOT AN AMENDMENT OF THE ACT OF 1867.  THE LATTER
HAD BEEN REPEALED BY THE ACT OF JUNE 7, 1878, 20 STAT. 99, AND FOR
TWENTY YEARS THERE WAS NO FEDERAL BANKRUPTCY ACT.  ACCORDINGLY, THE
1898 ACT IS NOT TO BE READ AS A MODIFICATION OF AN EXISTING SYSTEM.  IT
ESTABLISHED A SCHEME OF BANKRUPTCY ADMINISTRATION WHERE THERE WAS
NONE.  ITS FRAMERS, OF COURSE, DREW ON HISTORY.  THEY BORROWED HEAVILY
FROM THE ACT OF 1867.  BUT A COMPARISON OF THE JURISDICTIONAL SECTIONS
OF THE 1898 ACT WITH THOSE OF ITS PREDECESSOR REVEALS THE GREAT CHANGE
IN THE ATTITUDE OF CONGRESS REGARDING THE WITHDRAWAL OF ESSENTIALLY
LOCAL LITIGATION FROM THE STATE COURTS. 

4.  THE SHIFT IN JURISDICTIONAL DIRECTION WAS DULY RESPECTED WHEN THE
ACT OF 1898 FIRST CAME HERE FOR CONSTRUCTION.  SPEAKING FOR A UNANIMOUS
COURT, MR. JUSTICE GRAY POINTED OUT THE MARKED STRUCTURAL DIFFERENCES
BETWEEN THE ACT OF 1898 AND THAT OF 1867.  THE LATTER GRANTED SUMMARY
JURISDICTION TO THE DISTRICT COURT IN SEC. 1; PLENARY JURISDICTION WAS
CONFERRED BY SEC. 2 ON DISTRICT AND CIRCUIT COURTS CONCURRENTLY OF
"SUITS, AT LAW OR IN EQUITY, BETWEEN THE ASSIGNEE IN BANKRUPTCY AND AN
ADVERSE CLAIMANT  ...  ."  THE ACT OF 1898 TOOK OVER SEC. 1 OF THE ACT
OF 1867, AND DISCARDED SEC. 2.  SECTION 2 OF THE ACT OF 1898, DERIVED
FROM SEC. 1 OF THE 1867 ACT, CONFERS ONLY SUMMARY JURISDICTION. 
PLENARY JURISDICTION WAS NOT CONFERRED BY THE ACT OF 1898 ON EITHER THE
DISTRICT OR CIRCUIT COURTS EXCEPT TO THE VERY LIMITED EXTENT GRANTED BY
SEC. 23. 

SUCH WAS THE CONSTRUCTION OF THE ACT OF 1898 MADE ALMOST
CONTEMPORANEOUSLY WITH ITS ENACTMENT.  BARDES V. HAWARDEN BANK, 178
U.S. 524.  THIS CONSTRUCTION WAS REAFFIRMED THIRTY-FOUR YEARS LATER BY
A UNANIMOUS COURT, SPEAKING THROUGH MR. CHIEF JUSTICE HUGHES. 
SCHUMACHER V. BEELER, SUPRA. 

5.  THIS RECOGNITION OF THE DRASTIC DIFFERENCE BETWEEN THE TWO ACTS
WAS NOT DRAWN MERELY FROM THE INERT WORDS OF THE STATUTES.  THE WORDS
EXPRESSED THE GREAT DIFFERENCES OF OUTLOOK, TO WHICH REFERENCE HAS BEEN
MADE, IN REGARD TO THE TRANSFER TO THE FEDERAL COURTS OF WHAT IS
ESSENTIALLY STATE LITIGATION.  THIS COURT FOUND THE ACCENT OF THE ACT
OF 1867 TO BE ON ENFORCEMENT THROUGH "NATIONAL TRIBUNALS."  THE MATTER
WAS PUT QUITE PLAINLY BY MR. JUSTICE BRADLEY.  "THE STATE COURTS MAY
UNDOUBTEDLY BE RESORTED TO IN CASES OF ORDINARY SUITS FOR THE
POSSESSION OF PROPERTY OR THE COLLECTION OF DEBTS; AND IT IS NOT TO BE
PRESUMED THAT EMBARRASSMENTS WOULD BE ENCOUNTERED IN THOSE COURTS IN
THE WAY OF A PROMPT AND FAIR ADMINISTRATION OF JUSTICE.  BUT A UNIFORM
SYSTEM OF BANKRUPTCY, NATIONAL IN ITS CHARACTER, OUGHT TO BE CAPABLE OF
EXECUTION IN THE NATIONAL TRIBUNALS, WITHOUT DEPENDENCE UPON THOSE OF
THE STATES IN WHICH IT IS POSSIBLE THAT EMBARRASSMENTS MIGHT ARISE." 
LATHROP V. DRAKE, SUPRA, AT 518. 

THE OUTLOOK OF THE ACT OF 1898 AS TO PROCEEDINGS NOT IN BANKRUPTCY
"PROPERLY SO CALLED," BARDES V. HAWARDEN BANK, 178 U.S. 524, 533, WAS
PRECISELY THE OPPOSITE.  THE EMPHASIS WAS NOT ON UNIFORM ENFORCEMENT
THROUGH "NATIONAL TRIBUNALS."  CONCERN WAS WITH "THE GREATER ECONOMY
AND CONVENIENCE OF LITIGANTS AND WITNESSES" BY LEAVING THE
DETERMINATION OF WHAT INTRINSICALLY ARE MERELY LOCAL QUESTIONS TO THE
"LOCAL COURTS OF THE STATE."  BARDES V. HAWARDEN BANK, SUPRA, AT 538. 
THE COURT AGAIN REFERRED TO THIS PURPOSE OF THE 1898 ACT WHEN IT GAVE
FULL RECONSIDERATION TO THE LEGISLATION IN SCHUMACHER V. BEELER, SUPRA,
AT 374.  EMPHASIS WAS PLACED ON THE IMPORTANCE OF READY ACCESSIBILITY
TO LITIGANTS AFFORDED BY LOCAL COURTS AS AGAINST THE INCONVENIENCE
OFTEN ENTAILED IN BRINGING SUITORS TO THE FEDERAL COURTS, PARTICULARLY
IN WESTERN STATES.  BY REFERENCE TO AN EARLIER DECISION IN WHICH THAT
CONSIDERATION WAS TREATED AS A CONTROLLING FACTOR, THE COURT INDICATED
A GUIDING PRINCIPLE IN DECIDING QUESTIONS OF DOUBTFUL JURISDICTION. 
SEE SHOSHONE MINING COMPANY V. RUTTER, 177 U.S. 505, 511, 513, CITED IN
BARDES V. HAWARDEN BANK, AT 538.    6.  BUT WE ARE NOW TOLD THAT THE
BARDES AND SCHUMACHER CASES MISCONSTRUED THE ACT OF 1898 AND ITS
RELATION TO THAT OF 1867.  THE OPINIONS OF MR. JUSTICE GRAY AND MR.
CHIEF JUSTICE HUGHES WERE, ACCORDING TO THIS VIEW, THE PRODUCTS OF
MISREADING OF JUDICIAL HISTORY AND OF A FAULTY ANALYSIS OF THE ACT OF
1898.  INDEED, THE FOUNDATION OF THE DECISION OF THE COURT BELOW AND OF
THE ARGUMENT AT THE BAR OF THIS COURT IS THE CLAIM THAT THE
CONSTRUCTION PLACED UPON THE JURISDICTIONAL ACT OF 1898 BY THE BARDES
AND SCHUMACHER CASES WAS ERRONEOUS AND TO BE REJECTED WITHOUT
COMPUNCTION BECAUSE, AFTER ALL, MERELY THE EXPRESSION OF ERRONEOUS
DICTA.  WHETHER THE DISCUSSION OF THE WHOLE STRUCTURE OF AN ACT IN
ORDER TO FIND MEANING FOR A PARTICULAR PART MORE IMMEDIATELY IN
LITIGATION CONSTITUTES DICTA, IN THE TECHNICAL SENSE, IS A NICE
EXERCISE IN LEGAL DIALECTICS.  THE FACT OF THE MATTER IS THAT IT WAS
RATIONALLY RELEVANT TO THE PROBLEM CALLING FOR ADJUDICATION IN THE
BARDES CASES TO CONSIDER COMPREHENSIVELY THE RELATION OF THE ACT OF
1898 TO THAT OF 1867.  THE VIEW THAT WAS TAKEN HAD THE STRENGTH THAT
COMES NOT ONLY FROM A UNANIMOUS COURT BUT ONE CONTEMPORANEOUS WITH THE
LEGISLATION UNDER SCRUTINY.  AND WHEN THE CONSTRUCTION SO PLACED UPON
AN ACT IS REAFFIRMED THIRTY-FOUR YEARS LATER BY A COURT PARTICULARLY
STRONG IN JUSTICES WHO HAD HAD EXTENSIVE EXPERIENCE IN COMMERCIAL LAW,
IT SEEMS PRETTY LATE IN THE DAY TO SUGGEST THAT SUCH WEIGHTY
CONSTRUCTIONS BY THIS COURT ARE NOW TO BE FOUND WRONG.  FN1  THE COURT
BELOW WAS DRIVEN TO THIS DRASTIC UNDERTAKING.  FOR IF SEC. 2 OF THE ACT
OF 1898 IS THE SOURCE SOLELY OF SUMMARY PROCEEDINGS IN BANKRUPTCY, AND
JURISDICTION FOR PLENARY SUITS, TO A LIMITED EXTENT, WAS GRANTED SOLELY
BY SEC. 23, THE ELIMINATION OF SEC. 23 FOR PURPOSES OF CHAPTER X CANNOT
SERVE TO PUT INTO SEC. 2 A PLENARY JURISDICTION WHICH WAS NEVER THERE. 

7.  TO REEXAMINE THE GROUND COVERED IN THE BARDES AND SCHUMACHER
CASES WOULD, AS IT SEEMS TO ME, BE A WORK OF SUPEREROGATION.  AND SO I
WILL CONTENT MYSELF WITH SOME OBSERVATIONS PERTINENT TO A PROPER VIEW
OF THE ACT OF 1898 AS AN ENTIRETY.  THE DIFFERENT FEATURES OF AN
ORGANIC STATUTE ARE NOT DISCRETE PARTS.  THEY CAST LIGHT UPON EACH
OTHER AND ILLUMINE THE WHOLE.  THE ACT OF 1898 WAS READ AS IT WAS BY
THIS COURT BECAUSE IT ESTABLISHED A COMPREHENSIVE BANKRUPTCY SCHEME. 
BETWEEN "PROCEEDINGS IN BANKRUPTCY" AND PLENARY "SUITS AT LAW OR IN
EQUITY."  FOR FIFTY YEARS IT HAS BEEN THE POLICY OF CONGRESS THAT A
BANKRUPTCY TRUSTEE BRINGING AN ACTION LIKE THAT BEFORE US SHOULD SUE IN
A STATE COURT.  (THIS, OF COURSE, INCLUDES A FEDERAL COURT SITTING IN
THE STATE WHERE THERE IS DIVERSITY OF CITIZENSHIP.  ERIE R. CO. V.
TOMPKINS, 304 U.S. 64; GUARANTY TRUST COMPANY V. YORK, 326 U.S. 99.) 
HOWSOEVER ANY SECTION OF THE ACT OF 1898 MIGHT HAVE BEEN READ HAD IT
EXISTED BY ITSELF, ON A VIEW OF THE ACT AS AN ENTIRETY IT WAS SETTLED
THAT SUMMARY PROCEEDINGS MAY BE BROUGHT IN ANY FEDERAL COURT, WHEREAS
PLENARY SUITS AT LAW AND IN EQUITY, DISTINGUISHED AS SUCH FROM
PROCEEDINGS IN BANKRUPTCY, CAN BE BROUGHT ONLY WHERE THEY COULD HAVE
BEEN BROUGHT BETWEEN THE BANKRUPT AND THE OPPOSING PARTY HAD THERE BEEN
NO BANKRUPTCY.  SECTION 2 HAD AN INTRINSICALLY LIMITED SCOPE IN ITS
SETTING WITH SEC. 23.  THE SCOPE CONTINUES SO LIMITED AND DOES NOT
AUTOMATICALLY EXPAND BECAUSE SEC. 23 IS PRO TANTO ELIMINATED. 

THIS JURISDICTIONAL DIFFERENTIATION WAS NOT A MATTER OF CONGRESSIONAL
WHIM OR JUDICIAL TECHNICALITY.  IT WAS EASY FOR THIS COURT TO DISCERN
THAT THE OBJECT OF CONGRESS "MAY WELL HAVE BEEN TO LEAVE SUCH
CONTROVERSIES TO BE TRIED AND DETERMINED, FOR THE MOST PART, IN THE
LOCAL COURTS OF THE STATE, TO THE GREATER ECONOMY AND CONVENIENCE OF
LITIGANTS AND WITNESSES."  BARDES V. HAWARDEN BANK, SUPRA, AT 538;
SCHUMACHER V. BEELER, SUPRA, AT 374.  CONGRESS SAW GOOD REASON FOR NOT
INFRINGING ON THE ORDINARY JURISDICTION OF STATE COURTS WHERE A SUIT IS
NOT REALLY PART OF THE BANKRUPTCY PROCEEDINGS.  IT CHOSE TO LEAVE SUCH
LITIGATION TO THE APPROPRIATE LOCAL PRACTICE AND LOCAL RULES CONCERNING
JURY TRIAL IN THE LOCAL COURT, AND AT THE SAME TIME TO RELIEVE THEREBY
AN OVERWORKED FEDERAL JUDICIARY. 

8.  THESE IMPORTANT CONSIDERATIONS TOUCHING THE INTERPLAY OF STATE
AND FEDERAL COURTS AS WELL AS THE EFFECTIVE ADMINISTRATION OF JUSTICE
IN THE FEDERAL COURTS HAVE NOT LOST FORCE WITH TIME.  CONGRESS HAS
CONTINUED TO RECOGNIZE THEIR VALIDITY.  AS TO BANKRUPTCY TRUSTEES
GENERALLY, THE ACT OF 1938 CONTINUES TO REQUIRE THAT LOCAL SUITS LIKE
THE PRESENT BE BROUGHT IN LOCAL COURTS.  AND IN PREPARING FOR THE
JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES AN ANALYSIS OF A
PREDECESSOR BILL INTRODUCED BY MR. CHANDLER, THE NATIONAL BANKRUPTCY
CONFERENCE INDICATED THAT THE CONSIDERATIONS RELEVANT TO A PROPER
DISTRIBUTION OF BUSINESS AS BETWEEN STATE AND FEDERAL COURTS WHICH
UNDERLAY THE RESTRICTIVE POLICY OF THE ACT OF 1898 WERE MORE THAN EVER
APPLICABLE: 

"IN TAUBEL-SCOTT-KITZMILLER CO. V. FOX, 264 U.S. 426, MR. JUSTICE
BRANDEIS DECLARED OBITER THAT CONGRESS HAD POWER TO CONFER ON A
BANKRUPTCY COURT JURISDICTION TO ADJUDICATE THE RIGHTS OF TRUSTEES TO
PROPERTY NOT IN POSSESSION OF THE BANKRUPTCY COURT, EITHER ACTUALLY OR
CONSTRUCTIVELY, BUT ADVERSELY HELD BY A THIRD PERSON; BUT THAT CONGRESS
HAD NOT AS YET EXERCISED THAT POWER, OR CONFERRED SUCH JURISDICTION
UNDER ANY OF THE PROVISIONS OF THE BANKRUPTCY ACT. 

"THE PROCEEDINGS OF CONGRESS PRIOR TO THE ENACTMENT OF THE BANKRUPTCY
LAW OF 1898 SHOW THAT THE EXERCISE OF THAT POWER WAS DELIBERATELY
WITHHELD, BECAUSE OF THE FEAR OF FLOODING THE FEDERAL COURTS WITH A
LARGE VOLUME OF NEW LITIGATION.  THAT MOTIVE IS EVEN STRONGER TODAY
(1936) THAN IT WAS IN 1898, AND FOR THAT REASON WE DO NOT CONSIDER IT
WISE TO ENLARGE THE JURISDICTION AT THIS TIME; EXCEPT AS INDICATED TO
INCLUDE RECEIVERS AND SO-CALLED 'DEBTOR PROCEEDINGS.'"  (ANALYSIS OF
H.R. 12889, 74TH CONG., 2D SESS., COMMITTEE PRINT P. 134.) 

THE INDICATED EXCEPTIONS DO NOT TOUCH THE JURISDICTION HERE
ASSERTED.  YET THE COURT NOW CONCLUDES THAT AS TO CHAPTER X TRUSTEES
CONGRESS IMPLIED AN EXCEPTION SO AS TO ALLOW THE TRUSTEE TO SUE IN ANY
FEDERAL DISTRICT COURT IN THE COUNTRY.  IF THIS BE SO, I SEE NO ESCAPE
FROM THE CONCLUSION THAT NOT ONLY HAVE THE FEDERAL COURTS JURISDICTION
BUT THE STATE COURTS NO LONGER HAVE IT.  CONSIDERATION OF SO
DESTRUCTIVE A CONSEQUENCE OUGHT NOT TO BE POSTPONED AS THOUGH IT WERE
NOT IMMEDIATELY RELEVANT TO THE PROPER CONSTRUCTION OF THE LEGISLATION
BEFORE US.  IF SUCH SUITS ARE "BANKRUPTCY PROCEEDINGS"  FN2  WITHIN THE
JURISDICTIONAL GRANT OF SEC. 2 - FOR IT IS NECESSARY TO FIND IN SOME
LANGUAGE AN EXPLICIT GRANT OF JURISDICTION, AND ONLY SEC. 2 IS INVOKED
HOW CAN THE BANKRUPTCY ASPECT OF THE PROCEEDING EVAPORATE WHEN IT
COMES TO "MATTERS AND PROCEEDINGS IN BANKRUPTCY" AS TO WHICH "THE
JURISDICTION VESTED IN THE COURTS OF THE UNITED STATES  ...  SHALL BE
EXCLUSIVE OF THE COURTS OF THE SEVERAL STATES"?  REV. STAT. SEC. 711,
JUDICIAL CODE, SEC. 256, 28 U.S.C. SEC. 371.  NO SUPPORT CAN BE FOUND
FOR THIS SHIFTING ATTRIBUTION OF MEANING TO THE SAME CONCEPT IN THE
HISTORY OF PROCEEDINGS UNDER THE ACT OF 1867.  TO BE SURE, IT WAS HELD
UNDER THAT ACT THAT THE STATE COURTS WERE NOT DEPRIVED OF JURISDICTION
OF SUCH PLENARY SUITS.  BUT THAT WAS SO FOR THE CONCLUSIVE REASON THAT
THE PROVISION MAKING FEDERAL JURISDICTION EXCLUSIVE IN BANKRUPTCY
PROCEEDINGS CAME INTO THE LAW MUCH LATER THAN THE ACT OF 1867.  FEDERAL
EXCLUSIVENESS AS TO BANKRUPTCY PROCEEDINGS FORMALLY SO-CALLED WAS
BROUGHT IN BY SEC. 711 OF THE REVISED STATUTES OF 1874.  DURING THE FEW
YEARS WITHIN WHICH THE BANKRUPTCY ACT OF 1867 COEXISTED WITH THE
REQUIREMENT OF EXCLUSIVENESS OF JURISDICTION IN THE FEDERAL COURTS, THE
OCCASION DID NOT ARISE FOR APPLYING THE PROVISION EXCLUDING THE STATE
COURTS.  BUT THIS COURT WAS WELL AWARE OF THE PROBLEM AND CAREFULLY PUT
IT TO ONE SIDE.  SEE CLAFLIN V. HOUSEMAN, 93 U.S. 130, 133, AND WILSON
V. GOODRICH, 154 U.S. 640.  INTRINSICALLY, THAT QUESTION NOW PRESSES
FOR DECISION.  IF PLENARY SUITS ARE "BANKRUPTCY PROCEEDINGS" WITHIN
SEC. 2 OF THE ACT OF 1898, AS THE COURT HOLDS, HOW DO THEY CEASE TO BE
"PROCEEDINGS IN BANKRUPTCY" AS TO WHICH THE FEDERAL COURTS HAVE
JURISDICTION "EXCLUSIVE" OF THE JURISDICTION OF THE SEVERAL STATES? 
FN3  ONLY A FORCED DISHARMONY CAN AVOID THE GRIEVOUS CONSEQUENCES OF A
CONSTRUCTION EQUALLY FORCED AS TO THE RELATIONS BETWEEN SECS. 2 AND 23
OF THE ACT OF 1898. 

9.  THE COURT FINDS A REVERSAL IN THE POLICY OF CONTRACTION OF
FEDERAL JURISDICTION WHICH BEGAN WITH THE END OF THE RECONSTRUCTION
ERA, FOUND EXPRESSION IN CASES CULMINATING IN GULLY V. FIRST NATIONAL
BANK, 299 U.S. 109, AND UNDOUBTEDLY FURNISHED THE MOMENTUM FOR THE
RADICAL REVERSAL OF HISTORIC POLICY INITIATED BY ERIE R. CO. V.
TOMPKINS, 304 U.S. 64.  THE COURT EXTENDS THE JURISDICTION OF THE
FEDERAL COURTS AND, I CANNOT ESCAPE CONCLUDING, WITHDRAWS IT FROM THE
STATE COURTS.  IT RESOLVES WHATEVER AMBIGUITY MAY BE FOUND IN SEC. 102
OF CHAPTER X BY INTERPOLATING AN EXCEPTION WHICH EFFECTS A BREAK WITH
THE PAST AND CREATES DIFFICULTIES FOR THE FUTURE.  ONE WOULD NATURALLY
EXPECT THAT SUCH AN INNOVATION IN A MATTER OF VITAL CONCERN TO THE
SCOPE OF FEDERAL JURISDICTION, WITH ITS RESULTING EFFECT UPON THE
RELATIONS BETWEEN THE STATE AND FEDERAL COURTS, WOULD BE EXPLICITLY
STATED AND NOT DEPEND FOR DISCOVERY UPON INTRICATE EXEGESIS.  ONE WOULD
SUPPOSE THAT SOME INDICATION AT LEAST OF CONGRESSIONAL AWARENESS OF THE
PROBLEM COULD BE FOUND.  DILIGENCE OF COUNSEL HAS NOT UNEARTHED THE
REMOTEST HINT THAT SUCH SHIFT IN JURISDICTION WAS CONTEMPLATED OR THAT
THE NEED FOR IT WAS ASSERTED.  OUR OWN INVESTIGATION HAS BEEN EQUALLY
FRUITLESS.  THERE IS NOTHING IN CHAPTER X, IN ITS TERMS, ITS
ANTECEDENTS, ITS HISTORY, ITS ADVOCACY, THAT GIVES THE REMOTEST HINT OF
A PURPOSE CALLING FOR A DIFFERENT POLICY FOR REORGANIZATION TRUSTEES IN
THIS RESPECT FROM OTHER TRUSTEES IN BANKRUPTCY, OR ANY INTIMATION THAT
THE DISTRICT COURTS, OTHER THAN THE PARTICULAR REORGANIZATION COURT,
WOULD PLAY A SPECIAL ROLE AS TO PLENARY SUITS IN REORGANIZATION
PROCEEDINGS.  NOR DO THE PURPOSES OF THE CHANDLER ACT BEAR UPON THIS
ASPECT OF JURISDICTION.  CHAPTER X PROVIDED NEW FACILITIES FOR
REORGANIZATION OF BANKRUPT ESTATES AND EXTENDED THE SCOPE OF
REORGANIZATIONS.  BUT IT IS HARDLY RELEVANT TO THE PURPOSE OF EASIER
AND MORE COMPREHENSIVE METHODS OF REORGANIZATION TO ESTABLISH A CLAIM
THROUGH THE FEDERAL COURTS RATHER THAN THE STATE COURTS WHEN THE BASIS
OF RECOVERY IS STATE LAW, CALLING FOR APPLICATION OF STATE LAW AND
PROCEDURE.  THE COURT DRAWS SUPPORT FOR ITS CONCLUSION FROM THE FACT
THAT OTHER POWERS ARE CONFERRED UPON THE CHAPTER X TRUSTEE WHICH WERE
NOT POSSESSED BY OTHER BANKRUPTCY TRUSTEES.  BUT THE POWERS TO WHICH
ATTENTION IS CALLED ARE ALL EXPLICITLY CONFERRED AND ARE NOT DERIVED BY
ROUNDABOUT INFERENCE.  AND UNLIKE THE EXTENSION OF JURISDICTION HERE
CLAIMED, THE ADDITIONAL POWERS CONFERRED ON THE TRUSTEE ALL BEAR
DIRECTLY UPON THE VERY PROCESS OF REORGANIZATION AND THE PURPOSES FOR
WHICH CHAPTER X WAS DESIGNED. 

THE RESULT HAS BEEN SPUN LARGELY OUT OF WORDS IN THE ACT OF 1898 BY
DISREGARDING THE CONTROLLING FACTS OF ITS HISTORY AND ITS LONG JUDICIAL
AND PRACTICAL CONSTRUCTION.  THE OTHER SOURCE FROM WHICH THE ARGUMENT
IS SPUN IS THE PROVISION MAKING SEC. 23 INAPPLICABLE TO PROCEEDINGS
UNDER CHAPTER X. AS WE HAVE SEEN, OUR DECISIONS RULED THAT SEC. 23 WAS
NOT AN EXCEPTION TO SEC. 2 BUT AN EMPHASIS OF THE LIMITED SCOPE OF SEC.
2, TOGETHER WITH A GRANT, OF LITTLE IMPORTANCE, OF CONSENT
JURISDICTION.  FN4  IF SEC. 2 DID NOT GRANT JURISDICTION TO THE
DISTRICT COURTS OVER A PLENARY SUIT LIKE THE ONE BEFORE US, MERELY
ELIMINATING SEC. 23 COULD ADD NO NEW HEAD OF JURISDICTION TO SEC. 2. 
AND YET THE COURT FINDS THAT THE PURPOSE OF MAKING SEC. 23 INAPPLICABLE
TO CHAPTER X WAS TO THROW ALL THE FEDERAL COURTS OPEN TO PLENARY SUITS
IN CHAPTER X PROCEEDINGS, ALTHOUGH, AS WE HAVE SEEN, NOT A CLEAR
EXPRESSION EITHER OF SUCH PURPOSE, OR AN ASSESSMENT OF ITS
CONSEQUENCES, IS TO BE FOUND IN ALL THE LITERATURE ON THIS SUBJECT
PRIOR TO THIS LITIGATION.  IF A PERFECTLY REASONABLE EXPLANATION CAN BE
GIVEN TO THE ELIMINATION OF SEC. 23 FROM CHAPTER X PROCEEDINGS, WE
OUGHT NOT LIGHTLY TO ATTRIBUTE TO CONGRESS A RADICAL CHANGE AFFECTING
THE JURISDICTION OF THE FEDERAL COURTS, WITHOUT EVEN AN INDIRECT
MENTION OF THE NEED OR DESIRABILITY FOR SUCH A CHANGE IN THE THOUSANDS
OF PAGES OF LEGISLATIVE HEARINGS, DEBATES, AND REPORTS ON THE VARIOUS
BILLS LEADING UP TO THE CHANDLER ACT. 

10.  THERE IS AN ADEQUATE EXPLANATION FOR THE PROVISION MAKING SEC.
23 INAPPLICABLE THAT AMPLY ACCOUNTS FOR IT, WITHOUT USING IT AS A
SPRINGBOARD FOR A WHOLLY UNFORESEEN RESULT OUT OF HARMONY WITH
ESTABLISHED JURISDICTIONAL CONSIDERATIONS. 

THE PROVISION TO MAKE SEC. 23 INAPPLICABLE DID NOT APPEAR IN THE
EARLIER DRAFTS OF CHAPTER X AND WAS NOT IN THE BILL AS IT CAME FROM THE
HOUSE.  IT CAME INTO THE ACT THROUGH AMENDMENTS PROPOSED BEFORE THE
JUDICIARY COMMITTEE OF THE SENATE BY THE NATIONAL BANKRUPTCY CONFERENCE
THROUGH ITS SPOKESMAN, MR. JOHN GERDES.  HIS STATEMENT IS ALL WE HAVE
BY WAY OF LEGISLATIVE HISTORY FOR THE AMENDMENT.  FN5  IT WILL BE NOTED
THAT MR. GERDES INTIMATED NOTHING REGARDING THE NEED FOR EXTENDING
FEDERAL JURISDICTION, NOTHING OF THE DESIRABILITY OF GRANTING PLENARY
JURISDICTION TO ALL FEDERAL COURTS, NOTHING TO THE EFFECT THAT A
CHAPTER X TRUSTEE NEEDED SUCH GREATER FREEDOM, NOTHING TO INDICATE THAT
THE PLAN OF THAT CHAPTER REQUIRED A DIFFERENT RULE AS TO ORDINARY
PLENARY SUITS FROM THAT WHICH WAS REAFFIRMED AS TO SUITS BY OTHER
BANKRUPTCY TRUSTEES.  YET THE COURT BELOW SEEMED TO FIND IN HIS
STATEMENT WARRANT FOR ITS RESULT.  AND IT SOUGHT TO REENFORCE ITS
CONCLUSION BY APPEAL TO AN ARTICLE BY MR. GERDES ELUCIDATING THE
CHANDLER ACT AFTER ITS PASSAGE.  GERDES, CORPORATE REORGANIZATIONS:
CHANGES EFFECTED BY CHAPTER X OF THE REORGANIZATION ACT, 52 HARV. L.
REV. 1, 21. 

THE CIRCUIT COURT OF APPEALS, IT SEEMS TO ME, FINDS IN MR. GERDES'
OBSERVATIONS WHAT HE DID NOT PUT INTO THEM.  NOWHERE IS THERE THE
REMOTEST SUGGESTION THAT IN THIS ROUNDABOUT AND UNDISCLOSED WAY HE
SOUGHT TO THROW ALL LITIGATION BY OR AGAINST A REORGANIZATION TRUSTEE
INTO FEDERAL COURTS, OTHER THAN THE REORGANIZATION COURT, BECAUSE THE
FEDERAL COURTS MIGHT BE A MORE CONVENIENT FORUM.  HE WAS CONCERNED WITH
VARIOUS PROVISIONS, OF WHICH SEC. 23 WAS ONE, WHICH EITHER WERE
INTRINSICALLY IN CONFLICT WITH THE NEW PROVISIONS OF CHAPTER X OR MIGHT
BE DEEMED TO BE IN CONFLICT WITH THEM.  HE USED THE TERMS
"INCONSISTENT" AND "NOT APPLICABLE" INTERCHANGEABLY.  HE WAS CONCERNED
WITH REMOVING ALL LIMITATIONS IN THE EXISTING BANKRUPTCY ACT THAT WERE
INCONSISTENT WITH PROVISIONS IN CHAPTER X, LIMITATIONS WHICH MIGHT
IMPAIR THE NEW SCHEME FOR BANKRUPTCY REORGANIZATION.  WHILE MR. GERDES
WAS NOT EXPLICIT AS TO POSSIBLE INCONSISTENCY BETWEEN SEC. 23 AND
CHAPTER X, A CONTROVERSY WHICH HAD ARISEN IN REGARD TO SEC. 23 PRIOR TO
THE CHANDLER ACT, AND WITH WHICH HE WAS THOROUGHLY FAMILIAR, FULLY
EXPLAINS WHY MR. GERDES DEEMED IT DESIRABLE THAT SEC. 23 BE MADE
INAPPLICABLE TO CHAPTER X. 

THE MATTER IN CONTROVERSY WAS THIS.  SECTION 77B (A) GRANTED THE
REORGANIZATION COURT THE POWER POSSESSED BY AN EQUITY COURT WITH REGARD
TO EQUITY RECEIVERSHIPS.  THE QUESTION AROSE WHETHER A 77B TRUSTEE
COULD BRING A PLENARY SUIT IN THE REORGANIZATION COURT WITHOUT REGARD
TO DIVERSITY CITIZENSHIP, AS COULD AN EQUITY RECEIVER IN HIS HOME
COURT.  WHITE V. EWING, 159 U.S. 36.  THAT THE REORGANIZATION COURT HAD
SUCH JURISDICTION AND THAT SEC. 23 WAS NO BAR, WAS MR. GERDES' VIEW. 
BUT OTHER BANKRUPTCY SPECIALISTS AND SOME LOWER FEDERAL COURTS WERE OF
OPINION THAT SEC. 23 PRECLUDED SUCH SUITS.  COMPARE 2 GERDES, CORPORATE
REORGANIZATIONS, 1478, WITH FINLETTER, PRINCIPLES OF CORPORATE
REORGANIZATION, 186-87; AND SEE IN RE STANDARD GAS & ELECTRIC CO., 119
F.2D 658; TILTON V. MODEL TAXI CORP., 112 F.2D 86; IN RE PRIMA CO., 98
F.2D 952. 

TO REMOVE DOUBT AS TO THIS EFFECT OF SEC. 23, NAMELY ITS POSSIBLE
LIMITATION UPON THE POWER OF THE REORGANIZATION TRUSTEE TO SUE IN HIS
HOME COURT, IS THE FULL PURPOSE AND SCOPE OF ITS ELIMINATION FROM
CHAPTER X. IT WAS NOT TO GIVE THE REORGANIZATION TRUSTEE ROVING
AUTHORITY FOR PLENARY SUITS IN ALL FEDERAL COURTS THAT SEC. 23 WAS MADE
INAPPLICABLE.  IT WAS A DESIRE TO REMOVE THE DANGER THAT SEC. 23 MIGHT
BE DEEMED TO DEPRIVE A REORGANIZATION TRUSTEE OF THE POWER WHICH HE
OUGHT TO HAVE IN HIS REORGANIZATION COURT, THAT WAS IMPLICIT IN THE
SHORT STATEMENT OF MR. GERDES ON BEHALF OF THE NATIONAL BANKRUPTCY
CONFERENCE.  IT IS THIS PURPOSE THAT PREVAILED AND IT IS THIS PURPOSE
THAT SHOULD BE ENFORCED, AND NOT A RADICAL DEPARTURE UPSETTING THE
DISTRIBUTION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS, FOR
WHICH THERE IS NOT A VESTIGE OF A CLAIM BY ANYBODY IN THE HISTORY THAT
LED UP TO THE LEGISLATION.  THE ARTICLE OF MR. GERDES TO WHICH THE
COURT BELOW REFERS SEEMS TO LEAVE NO DOUBT AS TO THE LIMITED PURPOSE OF
MAKING SEC. 23 INAPPLICABLE.  "THE BANKRUPTCY PROVISION RESTRICTING
PLENARY JURISDICTION," HE WROTE, "HAS BEEN EXPRESSLY EXCLUDED FROM
APPLICATION SO THAT THE EQUITY RECEIVERSHIP JURISDICTION OVER PLENARY
ACTIONS WHICH ARE ANCILLARY TO THE MAIN PROCEEDINGS IS STILL AVAILABLE,
EVEN THOUGH THE CONTROVERSY INVOLVES LESS THAN $3,000 AND EVEN THOUGH
THERE IS NO DIVERSITY OF CITIZENSHIP."  52 HARV. L. REV. 1, 21.  FN6
THE ACT OF 1938 CONGRESS GAVE TO THE REORGANIZATION COURT EQUITY POWERS
LIKE THOSE WHICH HAD BEEN CONFERRED IN SEC. 77B (A), IT AUTHORIZED THE
TRUSTEE-RECEIVER TO BRING PLENARY SUITS IN HIS HOME COURT.  SUCH ALSO
IS THE VIEW OF ANOTHER IMPORTANT WITNESS IN THE HEARINGS ON THE
CHANDLER BILL, SEE WEINSTEIN, THE BANKRUPTCY LAW OF 1938, PP. 63-64,
193-94.  COMPARE THE ANALYSIS OF THE CHANDLER ACT IN 11 U.S.C.A. XXX. 

THIS CONSTRUCTION GIVES SCOPE TO THE PROVISION MAKING SEC. 23
INAPPLICABLE IN CHAPTER X PROCEEDINGS.  IT IS CONSISTENT WITH THE
POLICY OF THE WHOLE BANKRUPTCY ACT, AND GIVES EFFECT TO THE GRANT OF
EQUITY POWERS TO THE REORGANIZATION COURT.  ON THE OTHER HAND, NOTHING
IN THE POLICY OF THE CHANDLER ACT, IN ITS LANGUAGE, IN ITS HISTORY, OR
IN ANY OTHER FACTOR RELEVANT TO ITS CONSTRUCTION, JUSTIFIES A FINDING
THAT CONGRESS, BY IMPLICATION AND INDIRECTION, WITHOUT COMMENT OR
DISCUSSION, CHANGED THE MEANING WHICH THIS COURT HAD GIVEN TO ITS
LEGISLATION FOR FIFTY YEARS, AND EXPANDED A FEDERAL JURISDICTION WHICH
IS ALREADY OVER-BURDENED AND WHICH CONGRESS HAS TENDED TO CONTRACT;
THAT IT UPSET THE RELATION BETWEEN FEDERAL AND STATE COURTS WHICH
DEMANDS THAT, EVEN IN BANKRUPTCY, CLAIMS CREATED BY STATE LAW BE
LITIGATED IN LOCAL COURTS, APPLYING LOCAL LAW UNDER LOCAL RULES OF
PROCEDURE AND TRIAL PRACTICE, "TO THE GREATER ECONOMY AND CONVENIENCE
OF LITIGANTS AND WITNESSES." 

11.  THIS DECISION OVERTURNS THE ANALYSIS WHICH HAS GUIDED THE COURT
IN CONSTRUING THE DISTRIBUTION OF JURISDICTION BETWEEN THE FEDERAL AND
STATE COURTS WHICH CONGRESS DEVISED BY THE BANKRUPTCY ACT OF 1898, AND
ATTRIBUTES TO THE ACT OF 1938 A BIG CHANGE IN THIS DISTRIBUTION,
ALTHOUGH THERE IS NOT A GLIMMER OF A HINT IN ITS ENTIRE LEGISLATIVE
HISTORY THAT CONGRESS WAS AWARE THAT IT WAS DOING SO.  IMPORTANT SHIFTS
IN JURISDICTION OUGHT TO BE THE PRODUCT OF SOMETHING MORE PERSUASIVE
THAN WHAT IS MADE TO APPEAR AS A FIT OF CONGRESSIONAL ABSENT
MINDEDNESS.  IT OUGHT NOT TO BE DEEMED NATURAL THAT CONGRESS TOOK FROM
THE STATE COURTS LONG-ESTABLISHED JURISDICTION AND TRANSFERRED IT TO
THE FEDERAL COURTS, WHEN THERE IS NOTHING TO INDICATE THAT CONGRESS
WANTED TO DO SO OR KNEW THAT IT WAS DOING IT. 

WHEN CONGRESS HAS NOT, BY PLAIN LANGUAGE, EXTENDED THE JURISDICTION
OF THE DISTRICT COURTS WHICH ARE THE FEEDERS OF THE CIRCUIT COURTS OF
APPEALS AND OF THIS COURT, AN UNEXPRESSED PURPOSE TO SWELL THE DOCKETS
OF THE FEDERAL JUDICIARY OUGHT NOT TO BE ATTRIBUTED TO CONGRESS BY
CONSIDERING IN ISOLATION THE DESIRABILITY OF ALLOWING A PARTICULAR
CLASS OF LITIGATION TO BE BROUGHT IN A FEDERAL COURT.  ANY ADVANTAGE OF
GIVING JURISDICTION TO THE FEDERAL COURTS MUST BE BALANCED AGAINST THE
DISADVANTAGES OF TAKING AWAY FROM THE STATE COURTS CAUSES OF ACTION
ROOTED IN STATE LAW.  AND IN CONSIDERING THE ADVANTAGES OF ABSORPTION
BY THE FEDERAL COURTS OF JURISDICTION THERETOFORE VESTED IN THE STATE
COURTS, IT SHOULD BE OUR SPECIAL CONCERN TO BE MINDFUL THAT THE
DISTRICT COURTS ARE PART OF A SINGLE JUDICIAL SYSTEM.  INCREASE IN THE
SCOPE OF THE BUSINESS OF THE DISTRICT COURTS INEVITABLY REFLECTS ITSELF
IN THE BUSINESS OF THE CIRCUIT COURTS OF APPEALS AND OF THIS COURT.  IT
IS A TRUISM, BUT VITAL TO KEEP IN MIND, THAT INCREASE IN THE QUANTITY
OF THE COURT'S BUSINESS AFFECTS THE QUALITY OF ITS WORK.  FN7 

WHERE CONGRESS HAS CLEARLY ENLARGED THE JURISDICTION OF THE DISTRICT
COURTS, IT CANNOT BE WITHHELD NO MATTER WHAT THE EFFECT UPON THE
DOCKETS.  BUT WHERE CONGRESS HAS NOT MANIFESTED ITS PURPOSE WITH
CLARITY - MORE PARTICULARLY, WHERE SUCH PURPOSE IS DERIVED BY WAY OF
ELABORATE ARGUMENTATION - RESOLUTION OF JURISDICTIONAL DOUBTS PROPERLY
TAKES INTO ACCOUNT THE STRONG POLICY OF CONGRESS, EXPRESSED THROUGH A
SERIES OF JUDICIARY ACTS, NOT TO CAST BURDENS UPON THE FEDERAL COURTS
WHICH INTERFERE WITH THE EFFECTIVE DISCHARGE OF THEIR FUNCTIONS.  SEE,
FOR INSTANCE, AMERICAN SECURITY & TRUST CO. V. DISTRICT OF COLUMBIA,
224 U.S. 491, AND PHILLIPS V. UNITED STATES, 312 U.S. 246, 250-51. 
THESE ARE CONSIDERATIONS THAT WILL SEEM FAR AFIELD TO THE ISSUES OF
THIS CASE ONLY IF ITS DECISION IS NOT RELATED TO THE WORKINGS OF THE
FEDERAL JUDICIARY IN THE LIGHT OF ITS HISTORY. 

FN1  IN VIEW OF HIS EXTENSIVE COMMERCIAL EXPERIENCE ON MATTERS OF
BANKRUPTCY, ANY OBSERVATION BY MR. JUSTICE BRANDEIS CARRIES GREAT
WEIGHT.  BUT NEITHER IN KELLEY V. GILL, 245 U.S. 116, NOR ELSEWHERE,
DID HE STATE THAT SEC. 2 OF THE BANKRUPTCY ACT WAS A GRANT OF PLENARY
JURISDICTION TO ALL THE COURTS AND THAT SEC. 23 MERELY OPERATED AS A
CURTAILMENT OF SUCH GRANT.  WHAT IS SIGNIFICANT IS THAT WHEN, IN
SCHUMACHER V. BEELER, SUPRA, UPON A FULL DRESS CONSIDERATION OF THE
PROBLEM, A CONTRARY ANALYSIS WAS MADE, MR. JUSTICE BRANDEIS JOINED IN
IT. 

IN ANOTHER BANKRUPTCY CASE, THIS COURT SAID:  "ONLY COMPELLING
LANGUAGE IN THE STATUTE ITSELF WOULD WARRANT THE REJECTION OF A
CONSTRUCTION SO LONG AND SO GENERALLY ACCEPTED, ESPECIALLY WHERE
OVERTURNING THE ESTABLISHED PRACTICE WOULD HAVE SUCH FAR REACHING
CONSEQUENCES AS IN THE PRESENT INSTANCE."  MAYNARD V. ELLIOTT, 283 U.S.
273, 277. 

FN2  THE ACT OF 1938 SUBSTITUTED "PROCEEDINGS UNDER THIS ACT." 

FN3  NOTE THAT WITH REGARD TO THE EXCEPTIONS TO SEC. 23 CONGRESS
DEEMED IT NECESSARY TO CONFER JURISDICTION ON THE STATE COURTS
EXPLICITLY.  SEE SECS. 60(B), 67(E), AND 70(E)(3). 

FN4  IF THE PROVISIONS RENDERING SEC. 23 INAPPLICABLE TO CHAPTER X
PROCEEDINGS ALSO WITHDREW JURISDICTION BY CONSENT, IT IS NOT AN
IMPORTANT MATTER.  IN RESOLVING WHAT IS AT BEST A JURISDICTIONAL
AMBIGUITY A RESULT WHICH CLOSES THE DOORS OF THE FEDERAL COURTS TO
CONSENTING PARTIES IS OF MINOR CONSEQUENCE COMPARED WITH OPENING WIDE
THE DOOR TO A JURISDICTION THERETOFORE BARRED TO THE FEDERAL COURTS,
WHEN CONGRESS MANIFESTED NO CONSCIOUSNESS OF SUCH A NEW GRANT OF
JURISDICTION. 

FN5  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
THE JUDICIARY, ON H.R. 8046, 75TH CONG., 2D SESS., P. 77: 

"CHAPTER X IS NOT INTENDED TO BE SELF-SUFFICIENT.  ALL PROVISIONS OF
THE GENERAL BANKRUPTCY ACT ARE APPLICABLE TO PROCEEDINGS UNDER CHAPTER
X, EXCEPT SUCH PROVISIONS ARE INCONSISTENT WITH EXPRESS PROVISIONS IN
CHAPTER X. SOME PROVISIONS OF THE GENERAL ACT ARE CLEARLY INCONSISTENT
WITH THE CORPORATE REORGANIZATION PROVISIONS AND ARE THEREFORE
INAPPLICABLE.  OTHER PROVISIONS ARE CLEARLY APPLICABLE.  HOWEVER, THERE
ARE CERTAIN SECTIONS WHICH BY THEIR NATURE PERMIT OF DOUBT AS TO
WHETHER OR NOT THEY ARE APPLICABLE.  SECTION 64 OF THE GENERAL
BANKRUPTCY ACT, FOR EXAMPLE, PROVIDES FOR A FIXED PRIORITY IN THE
PAYMENT OF CLAIMS.  THIS SECTION DEALS SOLELY WITH UNSECURED CLAIMS,
ONLY UNSECURED CLAIMS BEING AFFECTED BY BANKRUPTCY.  TO APPLY IT IN
CORPORATE REORGANIZATIONS - WHERE SECURED AS WELL AS UNSECURED CLAIMS
ARE DEALT WITH - WOULD CAUSE GREAT CONFUSION.  TO MAKE IT CLEAR THAT
PROVIDES THAT 64 SHALL NOT BE APPLICABLE TO CHAPTER X. THE PRIORITIES
UNDER CHAPTER X WOULD THEREFORE BE THOSE USED IN EQUITY RECEIVERSHIPS. 
THAT IS THE PRESENT PRACTICE UNDER 77B, WHICH EXPRESSLY PROVIDES THAT
HERE WE MERELY ADOPT THE PRACTICE WHICH IS ALREADY IN EXISTENCE UNDER

"IN THIS ENUMERATION OF SECTIONS AND SUBSECTIONS WHICH ARE NOT
APPLICABLE, WE INCLUDE ONLY THOSE AS TO WHICH THERE MAY BE REASONABLE
DOUBT.  THE SECTIONS WHICH WE ENUMERATE ARE 23, 57(H), 57(N), 64, AND
70(F).  WE PROPOSE THAT SECTION 102 BE AMENDED TO PROVIDE THAT THESE
CHAPTER X." 

ANOTHER AMENDMENT, PROPOSED TO THE COMMITTEE BY MR. HEUSTON,
REPRESENTING THE SPECIAL COMMITTEE ON BANKRUPTCY OF THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK, WOULD HAVE MADE INAPPLICABLE TO
CHAPTER X SOME THIRTY SECTIONS OF THE ACT, AMONG THEM SEC. 23.  "THE
PROPOSED AMENDMENT EXCLUDES FROM A REORGANIZATION PROCEDURE ALL
WELL AS MANY ADDITIONAL SECTIONS WHICH HAVE NO APPLICABILITY TO A
REORGANIZATION PROCEDURE."  THE STATEMENT MAKES NO REFERENCE TO PLENARY
SUITS.  "THE SECTIONS EXCLUDED BY THE PROPOSED AMENDMENT, INCLUDE THOSE
WHICH WOULD PERMIT ANCILLARY RECEIVERSHIPS, THE APPOINTMENT OF
RECEIVERS BEFORE THE APPROVAL OF THE PETITION  ...  THE BANKRUPTCY
PROVISIONS RELATING TO PRIORITIES, ETC."  HEARINGS ON H.R. 8046, BEFORE
A SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE, 75TH CONG., 2D SESS.,
P. 37. 

FN6  THE DISCUSSION IN BANKRUPTCY LITERATURE OF THE EFFECT OF THE
PROVISION ELIMINATING SEC. 23 IS NOT ONLY MEAGER BUT AMBIGUOUS. 
CONFLICTING ARGUMENTS CAN BE DRAWN BY GIVING VARIANT MEANINGS TO
LANGUAGE SUSCEPTIBLE OF THEM, BUT THIS ONLY SERVES TO INDICATE THAT ON
SUCH TENUOUS MATERIALS OUGHT NOT TO BE BASED A REVERSAL OF
JURISDICTIONAL POLICY OF FAR-REACHING IMPORT. 

IT IS WORTHY OF NOTE THAT MR. GERDES IN HIS ARTICLE CITES AS THE
EFFECT OF THE ELIMINATION OF SEC. 23 ONLY THE CLARIFICATION OF THE
JURISDICTION OF THE REORGANIZATION COURT ITSELF OVER PLENARY SUITS.  HE
DOES NOT NOTE ANY EXPANSION OF THE JURISDICTION OF THE OTHER DISTRICT
COURTS ALTHOUGH, UNDER SEC. 77B.  WHEN SEC. 23 WAS NOT MADE EXPRESSLY
INAPPLICABLE, IT HAD BEEN HIS VIEW THAT OTHER DISTRICT COURTS WOULD
HAVE PLENARY JURISDICTION AS ANCILLARY TO THE RECEIVERSHIP JURISDICTION
OF THE REORGANIZATION COURT.  SEE 2 GERDES, CORPORATE REORGANIZATION,
1480, 1513-14. 

FN7  IF THE COURT WORKS UNDER TOO MUCH PRESSURE, BECAUSE OF THE
EXCESSIVE VOLUME OF ITS BUSINESS, THE PROCESS OF STUDY AND REFLECTION
INDISPENSABLE FOR WISE JUDGMENT IS BOUND TO SUFFER.  BEFORE HE BECAME
ITS HEAD, BUT SPEAKING FROM CLOSE ACQUAINTANCE WITH THE WORK OF THE
COURT, CHIEF JUSTICE TAFT GAVE WARNING THAT IF THIS COURT'S BUSINESS
"IS TO INCREASE WITH THE GROWTH OF THE COUNTRY, IT WILL BE SWAMPED WITH
ITS BURDEN, THE WORK WHICH IT DOES WILL, BECAUSE OF HASTE, NOT BE OF
THE HIGH QUALITY THAT IT OUGHT TO HAVE  ...  ."  TAFT, ATTACKS ON THE
COURTS AND LEGAL PROCEDURE (1916) 5 KY. L.J. NO. 2, P. 18.  AS IS WELL
KNOWN, IT WAS LARGELY THROUGH THE LEADERSHIP OF CHIEF JUSTICE TAFT THAT
THE JUDICIARY ACT OF FEBRUARY 13, 1925, 43 STAT. 936, WAS PASSED TO
ENABLE THE COURT TO KEEP ITS BUSINESS WITHIN MANAGEABLE LIMITS BY
CUTTING OFF THE FLOW OF LITIGATION AT ITS VARIOUS SOURCES.  THE TOTAL
NUMBER OF PETITIONS FOR CERTIORARI IS THE MOST SIGNIFICANT INDEX OF THE
COURT'S BUSINESS.  IN THE 1927 TERM, THE FIRST TERM DURING WHICH THE
INFLUENCE OF THE ACT OF 1925 WAS FULLY OPERATIVE, THE TOTAL NUMBER OF
SUCH PETITIONS WAS 587.  IN THE 1946 TERM, THROUGH JUNE 9, 1947, 1,144
SUCH PETITIONS WERE CONSIDERED.  SINCE MOST OF THE PETITIONS COME FROM
THE LOWER FEDERAL COURTS, ANY ENLARGEMENT OF THEIR JURISDICTION IS
INEVITABLY REFLECTED IN ATTEMPTS TO REVIEW THOSE COURTS HERE.  IF IT BE
SUGGESTED THAT THE VOLUME OF BUSINESS THAT WILL FLOW FROM THE NEW HEAD
OF JURISDICTION ESTABLISHED BY THIS DECISION IS IN ITSELF NOT LIKELY TO
BE VERY HEAVY, IT IS PERTINENT TO SAY THAT IT IS TRUE OF THE COURT'S
BUSINESS ALSO THAT MANY A MICKLE MAKES A MUCKLE. 
..END :






















INTERSTATE GAS CO. V. POWER COMM'N, 331 U.S. 682 


NO. 733.  ARGUED MAY 2, 1947.  - DECIDED JUNE 16, 1947.  - 156 F.2D 949,
AFFIRMED. 


A NATURAL GAS COMPANY SUBJECT TO THE NATURAL GAS ACT OF 1938, 52 STAT.
821, PRODUCES SOME GAS AND PURCHASES SOME GAS, WHICH IT MINGLES AND
CONDUCTS THROUGH A SYSTEM OF FIELD, BRANCH AND MAIN LINES (ALL WITHIN A
SINGLE STATE) INTO ITS MAIN TRUNK LINE, WHENCE IT IS SOLD TO INTERSTATE
PIPELINE COMPANIES FOR TRANSPORTATION, RESALE AND ULTIMATE CONSUMPTION
IN OTHER STATES.  THE ENTIRE MOVEMENT FROM THE WELLS TO THE PURCHASING
COMPANIES, THROUGH THEIR COMPRESSION PUMPS AND ACROSS THE STATE LINES
IS A CONTINUOUS PROCESS WITHOUT INTERRUPTION FOR STORAGE, PROCESSING OR
ANY OTHER PURPOSE.  HELD:  THE FEDERAL POWER COMMISSION HAS
JURISDICTION UNDER SEC. 1(B) OF THE NATURAL GAS ACT TO REGULATE SUCH
SALES.  PP. 686-693. 

(A)  SUCH SALES ARE "IN INTERSTATE COMMERCE" WITHIN THE MEANING OF
SEC. 1(B) OF THE NATURAL GAS ACT.  PP. 687-689. 

(B)  THEY ARE NOT WITHIN THE CLAUSE OF SEC. 1(B) WHICH EXCEPTS "THE
PRODUCTION OR GATHERING" OF NATURAL GAS FROM THE COMMISSION'S
REGULATORY JURISDICTION.  PP. 689-693. 

INTERSTATE NATURAL GAS CO., INC. V. FEDERAL POWER COMMISSION ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

THE FEDERAL POWER COMMISSION ISSUED AN ORDER UNDER SEC. 5(A) OF THE
NATURAL GAS ACT OF 1938, 52 STAT. 821, REQUIRING PETITIONER TO EFFECT
SUBSTANTIAL RATE REDUCTIONS IN CERTAIN OF ITS SALES OF NATURAL GAS AND
TO FILE NEW SCHEDULES OF RATES AND CHARGES.  3 F.P.C. 416.  THE CIRCUIT
COURT OF APPEALS DENIED A REVIEW.  156 F.2D 949.  THIS COURT GRANTED
CERTIORARI LIMITED TO THE QUESTION OF THE COMMISSION'S JURISDICTION. 
330 U.S. 852.  AFFIRMED, P. 693. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE ORIGINATED IN PROCEEDINGS BEFORE THE FEDERAL POWER
COMMISSION INITIATED PURSUANT TO SEC. 5(A) OF THE NATURAL GAS ACT OF
1938.  FN1  AFTER OVERRULING OBJECTIONS TO ITS JURISDICTION, THE
COMMISSION ENTERED AN ORDER REQUIRING THE PETITIONER TO EFFECT
SUBSTANTIAL RATE REDUCTIONS IN CERTAIN OF ITS SALES OF NATURAL GAS AND
TO FILE NEW SCHEDULES OF RATES AND CHARGES.  FN2 PETITIONER, IN SEEKING
REVIEW OF THE ORDER IN THE CIRCUIT COURT OF APPEALS, DENIED THE
JURISDICTION OF THE COMMISSION TO SET RATES FOR THE SALES IN ISSUE IN
THIS CASE AND ASSERTED THAT THE RATES SO ESTABLISHED WERE
CONFISCATORY.  THAT COURT, ONE JUDGE DISSENTING, DENIED THE PETITION
FOR REVIEW.  FN3  WE GRANTED CERTIORARI LIMITED TO THE QUESTION OF THE
COMMISSION'S JURISDICTION. 

PETITIONER OWNS AND OPERATES 110 NATURAL GAS WELLS AND OWNS OR
CONTROLS OVER 56,000 ACRES IN THE MONROE FIELD OF NORTHERN LOUISIANA. 
PETITIONER'S MAIN PIPE LINE TRANSPORTS GAS SOUTHWARD FROM THE MONROE
FIELD THROUGH A PART OF MISSISSIPPI AND BACK INTO LOUISIANA, WHERE AT
BATON ROUGE SALES ARE MADE TO VARIOUS DISTRIBUTING COMPANIES AND
INDUSTRIAL CONSUMERS.  PETITIONER CONCEDES THAT WITH RESPECT TO THESE
OPERATIONS IT IS A NATURAL GAS COMPANY WITHIN THE MEANING OF SEC. 2(6)
FN4  OF THE ACT AND THAT THE COMMISSION HAS JURISDICTION TO REGULATE
THE RATES OF SALES CONNECTED THEREWITH. 

THE ISSUE OF THIS CASE INVOLVES THE JURISDICTION OF THE FEDERAL POWER
COMMISSION TO REGULATE SALES MADE IN THE FIELD BY PETITIONER TO THREE
PIPE-LINE COMPANIES, EACH OF WHICH TRANSPORTS THE GAS SO PURCHASED TO
MARKETS IN STATES OTHER THAN LOUISIANA.  FN5  GAS PRODUCED FROM
PETITIONER'S WELLS FLOWS INTO PETITIONER'S SYSTEM OF FIELD PIPE LINES,
MOVING FIRST INTO BRANCH LINES, THEN INTO TRUNK LINES, AND FINALLY INTO
THE MAIN TRUNK LINES FROM WHICH DELIVERY IS MADE TO THE THREE
PURCHASING COMPANIES.  DURING THE COURSE OF THIS MOVEMENT PETITIONER
PURCHASES GAS FROM OTHER PRODUCERS IN THE FIELD WHICH GAS IS INTRODUCED
INTO PETITIONER'S SYSTEM AT DESIGNATED POINTS AND IS THERE COMMINGLED
WITH THE GAS MOVING FROM PETITIONER'S OWN WELLS.  BY FAR THE LARGER
PART OF THE GAS SO PURCHASED BY PETITIONER HAS BEEN GATHERED FROM
VARIOUS WELLS OF THE SELLING COMPANIES BEFORE DELIVERY TO PETITIONER IS
MADE.  FN6  THE GAS MOVES THROUGH PETITIONER'S SYSTEM AT WELL
PRESSURE.  SHORTLY AFTER THE SALES IN QUESTION ARE COMPLETED, THE GAS
IS DIRECTED THROUGH THE COMPRESSOR STATIONS OF THE PURCHASING COMPANIES
AND IS THERE SUBJECTED TO INCREASED PRESSURE IN ORDER THAT IT MAY BE
MOVED TO MARKETS AS FAR DISTANT AS ILLINOIS.  THE ENTIRE MOVEMENT OF
THE GAS FROM THE WELLS TO THE PURCHASING COMPANIES THROUGH THE
COMPRESSOR PUMPS AND ACROSS THE STATE LINES IS A CONTINUOUS PROCESS
WITHOUT INTERRUPTION FOR STORAGE, PROCESSING OR FOR ANY OTHER PURPOSE. 
FN7  ALL THE GAS SOLD IN THESE TRANSACTIONS IS DESTINED FOR ULTIMATE
PUBLIC CONSUMPTION IN STATES OTHER THAN LOUISIANA. 

IT APPEARS THAT PETITIONER SUPPLIES ONLY A PART OF THE GAS PURCHASED
BY THE THREE PIPE-LINE COMPANIES IN THE MONROE FIELD.  FN8 COUNSEL FOR
PETITIONER CONCEDED BEFORE THE COMMISSION THAT THE PRICES CHARGED THE
THREE PIPE-LINE COMPANIES WERE, BY AGREEMENT, IDENTICAL WITH THOSE
BEING CHARGED BY OTHER PRODUCERS IN THE FIELD.  THE COMMISSION FOUND
THAT PETITIONER WAS AN AFFILIATE OF ONE OF THE THREE PURCHASING
COMPANIES.  IT WAS THE CONCLUSION OF THE COMMISSION THAT THE RATES
CHARGED BY PETITIONER IN THESE SALES WERE "UNJUST, UNREASONABLE AND
UNLAWFUL" AND ORDERED RATE REDUCTIONS AMOUNTING TO $596,320 PER YEAR AS
APPLIED TO THE VOLUME OF GAS SOLD IN THE TEST YEAR OF 1941. 

PETITIONER HAS AT NO TIME CONTENDED THAT REGULATION OF ITS SALES TO
THE THREE PURCHASING COMPANIES IS BEYOND THE CONSTITUTIONAL POWERS OF
CONGRESS.  PETITIONER HAS VIGOROUSLY ASSERTED, HOWEVER, THAT CONGRESS
DID NOT EXERCISE ITS FULL POWERS IN THE NATURAL GAS ACT AND THAT IN
SEC. 1(B) OF THE ACT THE JURISDICTION OF THE FEDERAL POWER COMMISSION
IS SO LIMITED AS TO PRECLUDE VALID REGULATION OF THE SALES BY THAT
AGENCY.  SECTION 1(B) PROVIDES: 

"THE PROVISIONS OF THIS ACT SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

IT IS NOT DENIED THAT THE TRANSACTIONS IN QUESTION WERE SALES OF
NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION. 

PETITIONER HAS RAISED TWO ISSUES:  FIRST, IT IS CONTENDED, THE SALES
ARE NOT "IN INTERSTATE COMMERCE."  SECOND, THE SALES ARE A PART OF
"PRODUCTION OR GATHERING" AND HENCE NOT WITHIN THE COMMISSION'S POWER
OF REGULATION. 

WE HAVE NO DOUBT THAT THE SALES ARE IN INTERSTATE COMMERCE.  INDEED,
PETITIONER DID NOT CONTEST THAT POSITION BEFORE THE COMMISSION, BUT, SO
FAR AS THE RECORD REVEALS, RAISED THE ISSUE FOR THE FIRST TIME IN ITS
PETITION FOR REHEARING IN THE CIRCUIT COURT OF APPEALS.  FN9  THE
FEDERAL POWER COMMISSION FOUND THAT THE GAS SOLD TO THE THREE PIPE-LINE
COMPANIES MOVES "  ...  IN A CONSTANT FLOW FROM THE MOUTHS OF THE WELLS
FROM WHICH IT IS PRODUCED THROUGH PIPE LINES BELONGING TO INTERSTATE TO
THE COMPRESSOR STATION OF THE RESPECTIVE PURCHASER, AND THENCE THROUGH
SAID COMPRESSOR STATIONS INTO THE PIPE LINE OF SAID RESPECTIVE
PURCHASER AND THUS INTO AND THROUGH STATES OTHER THAN LOUISIANA  ...  ,
ALL WITHOUT INTERRUPTION, AND SAID GAS IS SO DESTINED FROM THE MOMENT
OF ITS PRODUCTION."  THE COMMISSION FURTHER FOUND THAT "THE GAS
TRANSPORTED AND SOLD BY INTERSTATE TO THESE THREE PIPE LINE COMPANIES
CONTINUES ITS FLOW IN INTERSTATE COMMERCE AND, AS AN ESTABLISHED COURSE
OF BUSINESS WELL KNOWN TO INTERSTATE, IS DESTINED FOR RESALE FOR
ULTIMATE PUBLIC CONSUMPTION IN ...  MARKETS OUTSIDE LOUISIANA." 

UNDER THE CIRCUMSTANCES DESCRIBED BY THE COMMISSION, IT IS CLEAR THAT
THE SALES IN QUESTION WERE QUITE AS MUCH IN INTERSTATE COMMERCE AS THEY
WOULD HAVE BEEN HAD THE PIPES OF THE PETITIONER CROSSED THE STATE LINE
BEFORE REACHING THE POINTS OF SALE.  FN10  THUS IN PUBLIC UTILITIES
COMMISSION V. ATTLEBORO STEAM & ELECTRIC CO., 273 U.S. 83(1927), A SALE
OF ELECTRICAL ENERGY AT THE STATE LINE WAS HELD TO BE IN INTERSTATE
COMMERCE.  COMMENTING ON THAT CASE, THIS COURT IN JERSEY CENTRAL POWER
& LIGHT CO. V. FEDERAL POWER COMMISSION, 319 U.S. 61, 69(1943) STATED:
"WE SEE NO DISTINCTION BETWEEN A SALE AT OR BEFORE REACHING THE STATE
LINE."  THERE IS NOTHING IN THE TERMS OF THE ACT OR IN ITS LEGISLATIVE
HISTORY TO INDICATE THAT CONGRESS INTENDED THAT A MORE RESTRICTED
MEANING BE ATTRIBUTED TO THE PHRASE "IN INTERSTATE COMMERCE" THAN THAT
WHICH THERETOFORE HAD BEEN GIVEN TO IT IN THE OPINIONS OF THIS COURT. 
FN11  SECTION 2(7) OF THE ACT DEFINES "INTERSTATE COMMERCE" AS "  ...
COMMERCE BETWEEN ANY POINT IN A STATE AND ANY POINT OUTSIDE THEREOF, OR
BETWEEN POINTS WITHIN THE SAME STATE BUT THROUGH ANY PLACE OUTSIDE
THEREOF, ...  "  CLEARLY THE SALES IN QUESTION WERE A PART OF COMMERCE
BEING CARRIED ON BETWEEN POINTS IN LOUISIANA AND POINTS IN OTHER
STATES.  THERE IS NOTHING IN THAT LANGUAGE TO SUGGEST THAT CONGRESS
INTENDED THAT SALES CONSUMMATED BEFORE THE GAS CROSSES A STATE LINE
SHOULD NOT BE REGARDED AS BEING "IN" SUCH COMMERCE. 

NOR ARE WE IMPRESSED WITH THE SUGGESTION THAT THE INTERSTATE MOVEMENT
OF THE GAS SHOULD BE REGARDED AS BEGINNING WHEN THE GAS, THERETOFORE
MOVING THROUGH PETITIONER'S PIPE LINE SYSTEM AT WELL PRESSURE, IS
SUBJECTED TO INCREASED PRESSURE IN THE COMPRESSOR STATIONS OF THE
PURCHASING COMPANIES IN ORDER THAT THE GAS MAY BE MOVED TO THE DISTANT
MARKETS.  LONG BEFORE THE GAS REACHES THE COMPRESSOR PUMPS IT HAS BEEN
COMMITTED TO ITS INTERSTATE JOURNEY WHICH FOLLOWS WITHOUT INTERRUPTION
OR DEVIATION.  UNDER SUCH CIRCUMSTANCES, THE INCREASE OF PRESSURE IN
THE COMPRESSOR STATIONS MUST BE REGARDED AS MERELY AN INCIDENT IN THE
INTERSTATE COMMERCE RATHER THAN AS ITS ORIGIN.  FN12 

THE COMPANY CONTENDS, HOWEVER, THAT REGARDLESS OF WHETHER THE SALES
IN QUESTION ARE IN INTERSTATE COMMERCE, THOSE TRANSACTIONS FALL WITHIN
THE CLAUSE OF SEC. 1(B) SPECIFICALLY EXCEPTING FROM THE COMMISSION'S
JURISDICTION REGULATION OF "  ...  THE PRODUCTION OR GATHERING OF
NATURAL GAS."  IN EVALUATING THAT CONTENTION WE SHOULD NOT LOSE SIGHT
OF THE OBJECTIVES SOUGHT TO BE ACCOMPLISHED BY CONGRESS IN PASSING THE
NATURAL GAS ACT. 

IN A SERIES OF DECISIONS ANNOUNCED PRIOR TO THE PASSAGE OF THE ACT,
THIS COURT HAD HELD THAT, ALTHOUGH CONGRESS HAD NOT ACTED, THE
REGULATION OF WHOLESALE RATES OF GAS AND ELECTRICAL ENERGY MOVING IN
INTERSTATE COMMERCE IS BEYOND THE CONSTITUTIONAL POWERS OF THE STATES. 
FN13 PETITIONER, RELYING IN PART UPON THE PRINCIPLES ESTABLISHED BY
THOSE CASES, HAS SUCCESSFULLY AVOIDED REGULATION BY THE LOUISIANA
PUBLIC SERVICE COMMISSION.  FN14  AS WAS STATED IN THE HOUSE COMMITTEE
REPORT, THE "BASIC PURPOSE" OF CONGRESS IN PASSING THE NATURAL GAS ACT
WAS "TO OCCUPY THIS FIELD IN WHICH THE SUPREME COURT HAS HELD THAT THE
STATES MAY NOT ACT."  FN15  IN DENYING THE FEDERAL POWER COMMISSION
JURISDICTION TO REGULATE THE PRODUCTION OR GATHERING OF NATURAL GAS, IT
WAS NOT THE PURPOSE OF CONGRESS TO FREE COMPANIES SUCH AS PETITIONER
FROM EFFECTIVE PUBLIC CONTROL.  THE PURPOSE OF THAT RESTRICTION WAS,
RATHER, TO PRESERVE IN THE STATES POWERS OF REGULATION IN AREAS IN
WHICH THE STATES ARE CONSTITUTIONALLY COMPETENT TO ACT.  THUS THE HOUSE
COMMITTEE REPORT STATES:  "THE BILL TAKES NO AUTHORITY FROM STATE
COMMISSIONS, AND IS SO DRAWN AS TO COMPLEMENT AND IN NO MANNER USURP
STATE REGULATORY AUTHORITY  ...  "  FN16  CLEARLY, AMONG THE POWERS
THUS RESERVED TO THE STATES IS THE POWER TO REGULATE THE PHYSICAL
PRODUCTION AND GATHERING OF NATURAL GAS IN THE INTERESTS OF
CONSERVATION OR OF ANY OTHER CONSIDERATION OF LEGITIMATE LOCAL
CONCERN.  FN17  IT WAS THE INTENTION OF CONGRESS TO GIVE THE STATES
FULL FREEDOM IN THESE MATTERS.  THUS, WHERE SALES, THOUGH TECHNICALLY
CONSUMMATED IN INTERSTATE COMMERCE, ARE MADE DURING THE COURSE OF
PRODUCTION AND GATHERING AND ARE SO CLOSELY CONNECTED WITH THE LOCAL
INCIDENTS OF THAT PROCESS AS TO RENDER RATE REGULATION BY THE FEDERAL
POWER COMMISSION INCONSISTENT OR A SUBSTANTIAL INTERFERENCE WITH THE
EXERCISE BY THE STATE OF ITS REGULATORY FUNCTIONS, THE JURISDICTION OF
THE FEDERAL POWER COMMISSION DOES NOT ATTACH.  FN18  BUT SUCH CONFLICT
MUST BE CLEARLY SHOWN.  EXCEPTIONS TO THE PRIMARY GRANT OF JURISDICTION
IN THE SECTION ARE TO BE STRICTLY CONSTRUED.  IT IS NOT SUFFICIENT TO
DEFEAT THE COMMISSION'S JURISDICTION OVER SALES FOR RESALE IN
INTERSTATE COMMERCE TO ASSERT THAT IN THE EXERCISE OF THE POWER OF RATE
REGULATION IN SUCH CASES, LOCAL INTERESTS MAY IN SOME DEGREE BE
AFFECTED.  FN19 

THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE REGULATION IN
QUESTION IS IN ANY WAY INCONSISTENT WITH THE EXERCISE BY LOUISIANA OF
THE POWERS OVER PRODUCTION AND GATHERING OF NATURAL GAS RESERVED TO IT
BY CONGRESS IN SEC. 1(B) OF THE ACT.  THE STATE IN A SERIES OF
ENACTMENTS HAS MADE ELABORATE PROVISION FOR THE CONSERVATION OF ITS
NATURAL GAS RESOURCES AND HAS ESTABLISHED VARIOUS RULES AND REGULATIONS
RELATING TO THE PRODUCTION AND GATHERING PROCESS.  FN20  MOST OF THOSE
PROVISIONS, PRESUMABLY, ARE APPLICABLE TO PETITIONER'S FIELD
OPERATIONS.  FN21  THE RECORD IS DEVOID OF ANY SUGGESTION THAT
LOUISIANA HAS EVER OPPOSED THE JURISDICTION OF THE FEDERAL POWER
COMMISSION IN THIS CASE OR HAS EVER URGED THAT FEDERAL REGULATION OF
THE SALES IN QUESTION WOULD INTERFERE WITH THE EXERCISE BY THE STATE OF
ITS REGULATORY FUNCTIONS.  FN22  WE DO NOT SUGGEST THAT THE
JURISDICTION OF THE COMMISSION IN ANY CASE IS TO BE DETERMINED BY THE
RESISTANCE OR LACK OF RESISTANCE ON THE PART OF THE STATE TO FEDERAL
REGULATION.  BUT IN EVALUATING THE COMPANY'S CONTENTION THAT THE
STATE'S POWERS HAVE BEEN INVADED, WE REGARD IT A MATTER OF SOME
SIGNIFICANCE THAT ALTHOUGH THE STATE HAS FREELY EXERCISED ITS
REGULATORY POWERS OVER THE PRODUCTION AND GATHERING OF NATURAL GAS,
THERE IS NO EVIDENCE OF ANY CONFLICT, PRESENT OR THREATENED, IN THE
PERFORMING OF THOSE FUNCTIONS BY THE STATE WITH THE EXERCISE OF THE
JURISDICTION OF THE FEDERAL POWER COMMISSION IN THIS CASE.    IT IS NOT
CONTENDED THAT THE COMMISSION IS PRECLUDED FROM REGULATING THE SALES IN
QUESTION BY REASON OF THE EXCEPTION FROM THE COMMISSION'S JURISDICTION
RELATING TO THE PRODUCTION OF NATURAL GAS.  PETITIONER ASSERTS,
HOWEVER, THAT THE SALES TO THE THREE PIPE-LINE COMPANIES ARE A PART OF
THE GATHERING PROCESS AND CONSEQUENTLY NOT WITHIN THE COMMISSION'S
POWER OF REGULATION.  THIS BASIC CONTENTION HAS GIVEN RISE TO A GREAT
MANY SUBSIDIARY QUESTIONS SUCH AS WHETHER THE SALES WERE MADE FROM
PETITIONER'S "GATHERING" LINES OR FROM PETITIONER'S "TRANSMISSION"
LINES AND WHETHER THE GATHERING PROCESS CONTINUED TO THE POINTS OF SALE
OR WAS, AS THE COMMISSION FOUND, COMPLETED AT SOME POINT PRIOR TO
SURRENDER OF CUSTODY AND PASSAGE OF TITLE.  WE HAVE FOUND IT
UNNECESSARY TO RESOLVE THOSE ISSUES.  THE GAS MOVED BY PETITIONER TO
THE POINTS OF SALE CONSISTED OF GAS PRODUCED FROM PETITIONER'S WELLS
COMMINGLED WITH THAT PRODUCED AND GATHERED BY OTHER COMPANIES AND
INTRODUCED INTO PETITIONER'S PIPE-LINE SYSTEM DURING THE COURSE OF THE
MOVEMENT.  BY THE TIME THE SALES ARE CONSUMMATED, NOTHING FURTHER IN
THE GATHERING PROCESS REMAINS TO BE DONE.  WE HAVE HELD THAT THESE
SALES ARE IN INTERSTATE COMMERCE.  IT CANNOT BE DOUBTED THAT THEIR
REGULATION IS PREDOMINATELY A MATTER OF NATIONAL, AS CONTRASTED TO
LOCAL CONCERN.  ALL THE GAS SOLD IN THESE TRANSACTIONS IS DESTINED FOR
CONSUMPTION IN STATES OTHER THAN LOUISIANA.  UNREASONABLE CHARGES
EXACTED AT THIS STAGE OF THE INTERSTATE MOVEMENT BECOME PERPETUATED IN
LARGE PART IN FIXED ITEMS OF COSTS WHICH MUST BE COVERED BY RATES
CHARGED SUBSEQUENT PURCHASERS OF THE GAS, INCLUDING THE ULTIMATE
CONSUMER.  FN23  IT WAS TO AVOID SUCH SITUATIONS THAT THE NATURAL GAS
ACT WAS PASSED. 

FOR REASONS STATED ABOVE, WE HAVE CONCLUDED THAT THE FEDERAL POWER
COMMISSION IN THIS CASE HAS NOT EXCEEDED THE JURISDICTION CONFERRED
UPON IT BY CONGRESS IN SEC. 1(B) OF THE NATURAL GAS ACT.  AFFIRMED. 

FN1  52 STAT. 821, 15 U.S.C. SEC. 717 ET SEQ.; 56 STAT. 83. 

FN2  3 F.P.C. 416. 

FN3  156 F.2D 949(1946). 

FN4  SECTION 2(6) PROVIDES:  "'NATURAL-GAS COMPANY' MEANS A PERSON
ENGAGED IN THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE, OR
THE SALE IN INTERSTATE COMMERCE OF SUCH GAS FOR RESALE." 

FN5  THE THREE COMPANIES INCLUDE THE MISSISSIPPI RIVER FUEL
CORPORATION, SOUTHERN NATURAL GAS COMPANY, AND THE UNITED GAS PIPE LINE
COMPANY TO WHICH GAS IS SOLD FOR THE ACCOUNT OF THE MEMPHIS NATURAL GAS
COMPANY. 

FN6  PETITIONER PRODUCED AND PURCHASED A TOTAL OF 51,659,799 MCF OF
GAS IN THE MONROE FIELD DURING 1941.  OF THIS TOTAL, PETITIONER
PRODUCED FROM ITS OWN WELLS 28,819,814 MCF.  OF THE 22,839,985 MCF
PURCHASED, 95% WAS GATHERED BY THE PRODUCERS BEFORE DELIVERY TO
PETITIONER; THE REMAINING 5% WAS PURCHASED BY PETITIONER DIRECTLY AT
THE WELL HEADS.  PETITIONER SOLD 21,863,278 MCF TO THE THREE PURCHASING
COMPANIES IN THE TRANSACTIONS IN QUESTION. 

FN7  GAS IN THE MONROE FIELD IS "DRY" GAS AND CONSEQUENTLY IS NOT
SUBJECTED TO ANY EXTRACTION PROCESSING.  BEFORE MOVING INTO THE
COMPRESSOR PUMPS THE GAS IS RUN THROUGH A SERIES OF "SCRUBBERS" WHICH
REMOVE DIRT AND FOREIGN PARTICLES.  THIS IS ACCOMPLISHED, HOWEVER,
WITHOUT INTERRUPTION IN THE MOVEMENT. 

FN8  THE TRANSACTIONS IN QUESTION SUPPLY THE MISSISSIPPI FUEL CORP.
WITH 22% OF ITS REQUIREMENTS, 24% OF THE REQUIREMENTS OF THE MEMPHIS
NATURAL GAS CO., AND 16.61% OF THE REQUIREMENTS OF SOUTHERN NATURAL GAS
CO. 

FN9  IN ITS COMPLAINT FILED IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA INVOKING THE EQUITY POWERS OF THE COURT TO
RESTRAIN THE LOUISIANA PUBLIC SERVICE COMMISSION FROM CONDUCTING AN
INVESTIGATION INTO PETITIONER'S RATES AND CHARGES, PETITIONER
SPECIFICALLY ASSERTED THAT THE SALES IN QUESTION ARE IN INTERSTATE
COMMERCE AND THUS BEYOND THE JURISDICTION OF THE STATE COMMISSION.  THE
DISTRICT COURT GRANTED THE REQUESTED RELIEF.  INTERSTATE NATURAL GAS
CO. V. PUBLIC SERVICE COMMISSION, 33 F.SUPP.  50; 34 F.SUPP. 
980(1940). 

FN10  SHAFER V. FARMERS GRAIN CO., 268 U.S. 189(1925); LEMKE V.
FARMERS GRAIN CO., 258 U.S. 50(1922); DAHNKE-WALKER MILLING CO. V.
BONDURANT, 257 U.S. 282(1921).  AND SEE ILLINOIS NATURAL GAS CO. V.
CENTRAL ILLINOIS PUBLIC SERVICE CO., 314 U.S. 498, 503-504(1942);
CURRIN V. WALLACE, 306 U.S. 1, 10(1939); PEOPLES NATURAL GAS CO. V.
PUBLIC SERVICE COMM'N, 270 U.S. 550, 554(1926); ILLINOIS CENTRAL R. CO.
V. RAILROAD COMM'N, 236 U.S. 157, 163(1915).  CF. MILK CONTROL BOARD V.
EISENBERG FARM PRODUCTS, 306 U.S. 346(1939). 

FN11  ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC SERVICE
CO., 314 U.S. 498, 508(1942); PEOPLES NATURAL GAS CO. V. FEDERAL POWER
COMM'N, 75 U.S. APP. D.C. 235, 127 F.2D 153(1942).  CF. JERSEY CENTRAL
POWER & LIGHT CO. V. FEDERAL POWER COMM'N, 319 U.S. 61, 70-71(1943). 

FN12  CF. ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC SERVICE
CO., SUPRA AT 504-505; STATE TAX COMM'N V. INTERSTATE NATURAL GAS CO.,
284 U.S. 41, 44(1931). 

FN13  MISSOURI V. KANSAS NATURAL GAS CO., 265 U.S. 298(1924); PUBLIC
UTILITIES COMM'N V. ATTLEBORO STEAM & ELECTRIC CO., 273 U.S. 83(1927);
STATE CORP. COMM'N V. WICHITA GAS CO., 290 U.S. 561(1934). 

FN14  SEE NOTE 9, SUPRA. 

FN15  H.R. REP. NO. 709, 75TH CONG., 1ST SESS., 2. 

FN16  IBID. 

FN17  COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMM'N, 324 U.S.
581, 602-603(1945). 

FN18  THE FEDERAL POWER COMMISSION HAS NOT ASSERTED JURISDICTION OVER
ALL SALES TAKING PLACE IN THE NATURAL GAS FIELDS EVEN THOUGH IN
INTERSTATE COMMERCE FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION.  IN THE
MATTER OF COLUMBIAN FUEL CORP., 2 F.P.C. 200; IN THE MATTER OF BILLINGS
CO., 2 F.P.C. 288.  WE EXPRESS NO OPINION AS TO THE VALIDITY OF THE
JURISDICTIONAL TESTS EMPLOYED BY THE COMMISSION IN THESE CASES. 

FN19  CF. COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMM'N, SUPRA
AT 603; FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591, 607
612(1944). 

FN20  LA. GEN. STAT. SECS. 4766-4826.2. 

FN21  THE RECORD CONTAINS TESTIMONY BY COUNSEL FOR PETITIONER TO THE
EFFECT THAT THESE PROVISIONS APPLY TO PETITIONER AND THAT PETITIONER'S
OPERATIONS HAVE CONFORMED WITH THEIR REQUIREMENTS. 

FN22  COUNSEL FOR THE LOUISIANA PUBLIC SERVICE COMMISSION AND FOR TWO
LOUISIANA MUNICIPALITIES PARTICIPATED IN THE PROCEEDINGS BEFORE THE
FEDERAL POWER COMMISSION. 

FN23  A NUMBER OF CASES IN THIS COURT HAVE HELD THAT THE
REASONABLENESS OF COST ITEMS SUCH AS THAT INCURRED BY A PURCHASING PIPE
LINE COMPANY IN ACQUIRING GAS FOR TRANSPORTATION MAY BE INQUIRED INTO
DURING THE COURSE OF SUBSEQUENT REGULATION WHEN BUYER AND SELLER ARE
AFFILIATED CORPORATIONS AND THERE IS EVIDENCE THAT THE SALES WERE NOT
MADE AT ARM'S LENGTH.  THE COMMISSION FOUND AFFILIATION TO EXIST
BETWEEN PETITIONER AND ONLY ONE OF THE THREE PURCHASING COMPANIES, THE
MISSISSIPPI RIVER FUEL CORPORATION.  THERE WAS A FINDING OF "CLOSE
CONTRACTUAL AND OPERATING ARRANGEMENTS" BETWEEN PETITIONER AND ANOTHER
OF THE PURCHASING COMPANIES.  NATURAL GAS PIPELINE CO. V. SLATTERY, 302
U.S. 300(1937); COLUMBUS GAS & FUEL CO. V. PUBLIC UTILITIES COMM'N, 292
U.S. 398(1934); DAYTON POWER & LIGHT CO. V. PUBLIC UTILITIES COMM'N,
292 U.S. 290(1934); WESTERN DISTRIBUTING CO. V. PUBLIC SERVICE COMM'N,
285 U.S. 119(1932); SMITH V. ILLINOIS BELL TELEPHONE CO., 282 U.S.
133(1930); UNITED FUEL GAS CO. V. RAILROAD COMM'N, 278 U.S. 300(1929). 

..END :























MCWILLIAMS V. COMMISSIONER, 331 U.S. 694 


ARGUED MAY 8, 1947.  - DECIDED JUNE 16, 1947.  - 158 F.2D 637,
AFFIRMED. 


1.  IN ORDER TO ESTABLISH TAX LOSSES, A HUSBAND WHO MANAGED THE
SEPARATE ESTATE OF HIS WIFE, AS WELL AS HIS OWN, ORDERED HIS BROKER TO
SELL CERTAIN STOCK FOR THE ACCOUNT OF ONE OF THE TWO AND TO BUY THE
SAME NUMBER OF SHARES OF THE SAME STOCK FOR THE OTHER, AT AS NEARLY THE
SAME PRICE AS POSSIBLE.  THE SALES WERE MADE TO, AND THE PURCHASES
FROM, UNKNOWN STRANGERS THROUGH A STOCK EXCHANGE, AND THE BUYING SPOUSE
RECEIVED STOCK CERTIFICATES DIFFERENT FROM THOSE WHICH THE OTHER HAD
SOLD.  HELD:  DEDUCTIONS IN THEIR SEPARATE INCOME TAX RETURNS FOR
LOSSES ON SUCH SALES ARE FORBIDDEN BY SEC. 24(B) OF THE INTERNAL
REVENUE CODE, AS LOSSES FROM "SALES OR EXCHANGES OF PROPERTY, DIRECTLY
OR INDIRECTLY  ...  BETWEEN MEMBERS OF A FAMILY."  PP. 695-703. 

2.  THE PURPOSE OF SEC. 24(B) WAS TO PUT AN END TO THE RIGHT OF
TAXPAYERS TO CHOOSE, BY INTRA-FAMILY TRANSFERS AND OTHER DESIGNATED
DEVICES, THEIR OWN TIME FOR REALIZING TAX LOSSES ON INVESTMENTS WHICH,
FOR MOST PRACTICAL PURPOSES, ARE CONTINUED UNINTERRUPTED - REGARDLESS
OF THE MANNER IN WHICH THE TRANSFERS ARE ACCOMPLISHED.  PP. 700-701. 

3.  THE WORDS "DIRECTLY OR INDIRECTLY" IN SEC. 24(B) PRECLUDE A
CONSTRUCTION WHICH WOULD LIMIT THE PROHIBITION TO DIRECT INTRA-FAMILY
TRANSFERS OR TO THOSE IN WHICH THE UNITS OF FUNGIBLE PROPERTY SOLD BY
ONE SPOUSE AND THOSE BOUGHT BY THE OTHER ARE IDENTICAL.  PP. 702-703. 

MCWILLIAMS V. COMMISSIONER OF INTERNAL REVENUE. 

NO. 945.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT.* 

*TOGETHER WITH NO. 946, ESTATE OF MCWILLIAMS ET AL. V. COMMISSIONER
OF INTERNAL REVENUE, AND NO. 947, MCWILLIAMS V. COMMISSIONER OF
INTERNAL REVENUE, ALSO ON CERTIORARI TO THE SAME COURT. 

THE TAX COURT EXPUNGED DEFICIENCY ASSESSMENTS FOR LOSSES REALIZED
FROM INDIRECT INTRA-FAMILY TRANSFERS OF STOCKS.  5 T.C. 623.  THE
CIRCUIT COURT OF APPEALS REVERSED.  158 F.2D 637.  THIS COURT GRANTED
CERTIORARI.  330 U.S. 814.  AFFIRMED, P. 703. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE FACTS OF THESE CASES ARE NOT IN DISPUTE.  JOHN P. MCWILLIAMS,
PETITIONER IN NO. 945, HAD FOR A NUMBER OF YEARS MANAGED THE LARGE
INDEPENDENT ESTATE OF HIS WIFE, PETITIONER IN NO. 947, AS WELL AS HIS
OWN.  ON SEVERAL OCCASIONS IN 1940 AND 1941 HE ORDERED HIS BROKER TO
SELL CERTAIN STOCK FOR THE ACCOUNT OF ONE OF THE TWO AND TO BUY THE
SAME NUMBER OF SHARES OF THE SAME STOCK FOR THE OTHER, AT AS NEARLY THE
SAME PRICE AS POSSIBLE.  HE TOLD THE BROKER THAT HIS PURPOSE WAS TO
ESTABLISH TAX LOSSES.  ON EACH OCCASION THE SALE AND PURCHASE WERE
PROMPTLY NEGOTIATED THROUGH THE STOCK EXCHANGE, AND THE IDENTITY OF THE
PERSONS BUYING FROM THE SELLING SPOUSE AND OF THE PERSONS SELLING TO
THE BUYING SPOUSE WAS NEVER KNOWN.  INVARIABLY, HOWEVER, THE BUYING
SPOUSE RECEIVED STOCK CERTIFICATES DIFFERENT FROM THOSE WHICH THE OTHER
HAD SOLD.  PETITIONERS FILED SEPARATE INCOME TAX RETURNS FOR THESE
YEARS, AND CLAIMED THE LOSSES WHICH HE OR SHE SUSTAINED ON THE SALES AS
DEDUCTIONS FROM GROSS INCOME. 

THE COMMISSIONER DISALLOWED THESE DEDUCTIONS ON THE AUTHORITY OF SEC.
24(B) OF THE INTERNAL REVENUE CODE,  FN1  WHICH PROHIBITS DEDUCTIONS
FOR LOSSES FROM "SALES OR EXCHANGES OF PROPERTY, DIRECTLY OR INDIRECTLY
...  BETWEEN MEMBERS OF A FAMILY," AND BETWEEN CERTAIN OTHER CLOSELY
RELATED INDIVIDUALS AND CORPORATIONS. 

ON THE TAXPAYERS' APPLICATIONS TO THE TAX COURT, IT HELD SEC. 24(B)
INAPPLICABLE, FOLLOWING ITS OWN DECISION IN ICKELHEIMER V.
COMMISSIONER,  FN2  AND EXPUNGED THE COMMISSIONER'S DEFICIENCY
ASSESSMENTS.  FN3  THE CIRCUIT COURT OF APPEALS REVERSED THE TAX COURT
FN4  AND WE GRANTED CERTIORARI  FN5  BECAUSE OF A CONFLICT BETWEEN
CIRCUITS  FN6  AND THE IMPORTANCE OF THE QUESTION INVOLVED. 

PETITIONERS CONTEND THAT CONGRESS COULD NOT HAVE INTENDED TO DISALLOW
LOSSES ON TRANSACTIONS LIKE THOSE DESCRIBED ABOVE, WHICH, HAVING BEEN
MADE THROUGH A PUBLIC MARKET, WERE UNDOUBTEDLY BONA FIDE SALES, BOTH IN
THE SENSE THAT TITLE TO PROPERTY WAS ACTUALLY TRANSFERRED, AND ALSO IN
THE SENSE THAT A FAIR CONSIDERATION WAS PAID IN EXCHANGE.  THEY CONTEND
THAT THE DISALLOWANCE OF SUCH LOSSES WOULD AMOUNT, PRO TANTO, TO
TREATING HUSBAND AND WIFE AS A SINGLE INDIVIDUAL FOR TAX PURPOSES. 

IN SUPPORT OF THIS CONTENTION, THEY CALL OUR ATTENTION TO THE PRE
1934 RULE, WHICH APPLIED TO ALL SALES REGARDLESS OF THE RELATIONSHIP OF
SELLER AND BUYER, AND MADE THE DEDUCTIBILITY OF THE RESULTANT LOSS TURN
ON THE "GOOD FAITH" OF THE SALE, I.E., WHETHER THE SELLER ACTUALLY
PARTED WITH TITLE AND CONTROL.  FN7  THEY POINT OUT THAT IN THE CASE OF
THE USUAL INTRA-FAMILY SALE, THE EVIDENCE MATERIAL TO THIS ISSUE WAS
PECULIARLY WITHIN THE KNOWLEDGE AND EVEN THE CONTROL OF THE TAXPAYER
AND THOSE AMENABLE TO HIS WISHES, AND INACCESSIBLE TO THE GOVERNMENT. 
FN8  THEY MAINTAIN THAT THE ONLY PURPOSE OF THE PROVISIONS OF THE 1934
AND 1937 REVENUE ACTS - THE FORERUNNERS OF SEC. 24(B)  FN9  - WAS TO
OVERCOME THESE EVIDENTIARY DIFFICULTIES BY DISALLOWING LOSSES ON SUCH
SALES IRRESPECTIVE OF GOOD FAITH.  IT SEEMS TO BE PETITIONERS' BELIEF
THAT THE EVIDENTIARY DIFFICULTIES SO CONTEMPLATED WERE ONLY THOSE
RELATING TO PROOF OF THE PARTIES' OBSERVANCE OF THE FORMALITIES OF A
SALE AND OF THE FAIRNESS OF THE PRICE, AND CONSEQUENTLY THAT THE
LEGISLATIVE REMEDY APPLIED ONLY TO SALES MADE IMMEDIATELY FROM ONE
MEMBER OF A FAMILY TO ANOTHER, OR MEDIATELY THROUGH A CONTROLLED
INTERMEDIARY. 

WE ARE NOT PERSUADED THAT CONGRESS HAD SO LIMITED AN APPRECIATION OF
THIS TYPE OF TAX AVOIDANCE PROBLEM.  EVEN ASSUMING THAT THE PROBLEM WAS
THOUGHT TO ARISE SOLELY OUT OF THE TAXPAYER'S INHERENT ADVANTAGE IN A
CONTEST CONCERNING THE GOOD OR BAD FAITH OF AN INTRA-FAMILY SALE,
DECEPTION COULD OBVIOUSLY BE PRACTICED BY A BUYING SPOUSE'S AGREEMENT
OR TACIT READINESS TO HOLD THE PROPERTY SOLD AT THE DISPOSAL OF A
SELLING SPOUSE, RATHER MORE EASILY THAN BY A PRETENSE OF A SALE WHERE
NONE ACTUALLY OCCURRED, OR BY AN UNFAIR PRICE.  THE DIFFICULTY OF
DETERMINING THE FINALITY OF AN INTRA-FAMILY TRANSFER WAS ONE WITH WHICH
THE COURTS WRESTLED UNDER THE PRE-1934 LAW,  FN10  AND WHICH CONGRESS
UNDOUBTEDLY MEANT TO OVERCOME BY ENACTING THE PROVISIONS OF SEC.
24(B).  FN11 

IT IS CLEAR, HOWEVER, THAT THIS DIFFICULTY IS ONE WHICH ARISES OUT OF
THE CLOSE RELATIONSHIP OF THE PARTIES, AND WOULD BE MET WHENEVER, BY
PREARRANGEMENT, ONE SPOUSE SELLS AND ANOTHER BUYS THE SAME PROPERTY AT
A COMMON PRICE, REGARDLESS OF THE MECHANICS OF THE TRANSACTION. 
INDEED, IF THE PROPERTY IS FUNGIBLE, THE POSSIBILITY THAT A SALE AND
PURCHASE MAY BE RENDERED NUGATORY BY THE BUYING SPOUSE'S AGREEMENT TO
HOLD FOR THE BENEFIT OF THE SELLING SPOUSE, AND THE DIFFICULTY OF
PROVING THAT FACT AGAINST THE TAXPAYER, ARE EQUALLY GREAT WHEN THE
UNITS OF THE PROPERTY WHICH THE ONE BUYS ARE NOT THE IDENTICAL UNITS
WHICH THE OTHER SELLS. 

SECURITIES TRANSACTIONS HAVE BEEN THE MOST COMMON VEHICLE FOR THE
CREATION OF INTRA-FAMILY LOSSES.  EVEN IF WE SHOULD ACCEPT PETITIONERS'
PREMISE THAT THE ONLY PURPOSE OF SEC. 24(B) WAS TO MEET AN EVIDENTIARY
PROBLEM, WE COULD AGREE THAT CONGRESS DID NOT MEAN TO REACH THE
TRANSACTIONS IN THIS CASE ONLY IF WE THOUGHT IT COMPLETELY INDIFFERENT
TO THE EFFECTUALITY OF ITS SOLUTION. 

MOREOVER, WE THINK THE EVIDENTIARY PROBLEM WAS NOT THE ONLY ONE WHICH
CONGRESS INTENDED TO MEET.  SECTION 24(B) STATES AN ABSOLUTE
PROHIBITION - NOT A PRESUMPTION - AGAINST THE ALLOWANCE OF LOSSES ON
ANY SALES BETWEEN THE MEMBERS OF CERTAIN DESIGNATED GROUPS.  THE ONE
COMMON CHARACTERISTIC OF THESE GROUPS IS THAT THEIR MEMBERS, ALTHOUGH
DISTINCT LEGAL ENTITIES, GENERALLY HAVE A NEARIDENTITY OF ECONOMIC
INTERESTS.  FN12  IT IS A FAIR INFERENCE THAT EVEN LEGALLY GENUINE
INTRA-GROUP TRANSFERS WERE NOT THOUGHT TO RESULT, USUALLY, IN
ECONOMICALLY GENUINE REALIZATIONS OF LOSS, AND ACCORDINGLY THAT
CONGRESS DID NOT DEEM THEM TO BE APPROPRIATE OCCASIONS FOR THE
ALLOWANCE OF DEDUCTIONS. 

THE PERTINENT LEGISLATIVE HISTORY LENDS SUPPORT TO THIS INFERENCE. 
THE CONGRESSIONAL COMMITTEES, IN REPORTING THE PROVISIONS ENACTED IN
1934, MERELY STATED THAT "THE PRACTICE OF CREATING LOSSES THROUGH
TRANSACTIONS BETWEEN MEMBERS OF A FAMILY AND CLOSE CORPORATIONS HAS
BEEN FREQUENTLY UTILIZED FOR AVOIDING THE INCOME TAX," AND THAT THESE
PROVISIONS WERE PROPOSED TO "DENY LOSSES TO BE TAKEN IN THE CASE OF
(SUCH) SALES" AND "TO CLOSE THIS LOOPHOLE OF TAX AVOIDANCE."  FN13
SIMILAR LANGUAGE WAS USED IN REPORTING THE 1937 PROVISIONS.  FN14
CHAIRMAN DOUGHTON OF THE WAYS AND MEANS COMMITTEE, IN EXPLAINING THE
1937 PROVISIONS TO THE HOUSE, SPOKE OF "THE ARTIFICIAL TAKING AND
ESTABLISHMENT OF LOSSES WHERE PROPERTY WAS SHUFFLED BACK AND FORTH
BETWEEN VARIOUS LEGAL ENTITIES OWNED BY THE SAME PERSONS OR PERSON,"
AND STATED THAT "THESE TRANSACTIONS SEEM TO OCCUR AT MOMENTS REMARKABLY
OPPORTUNE TO THE REAL PARTY IN INTEREST IN REDUCING HIS TAX LIABILITY
BUT, AT THE SAME TIME ALLOWING HIM TO KEEP SUBSTANTIAL CONTROL OF THE
ASSETS BEING TRADED OR EXCHANGED."  FN15 

WE CONCLUDE THAT THE PURPOSE OF SEC. 24(B) WAS TO PUT AN END TO THE
RIGHT OF TAXPAYERS TO CHOOSE, BY INTRA-FAMILY TRANSFERS AND OTHER
DESIGNATED DEVICES, THEIR OWN TIME FOR REALIZING TAX LOSSES ON
INVESTMENTS WHICH, FOR MOST PRACTICAL PURPOSES, ARE CONTINUED
UNINTERRUPTED. 

WE ARE CLEAR AS TO THIS PURPOSE, TOO, THAT ITS EFFECTUATION OBVIOUSLY
HAD TO BE MADE INDEPENDENT OF THE MANNER IN WHICH AN INTRA-GROUP
TRANSFER WAS ACCOMPLISHED.  CONGRESS, WITH SUCH PURPOSE IN MIND, COULD
NOT HAVE INTENDED TO INCLUDE WITHIN THE SCOPE OF SEC. 24(B) ONLY SIMPLE
TRANSFERS MADE DIRECTLY OR THROUGH A DUMMY, OR TO EXCLUDE TRANSFERS OF
SECURITIES EFFECTED THROUGH THE MEDIUM OF THE STOCK EXCHANGE, UNLESS IT
WANTED TO LEAVE A LOOP-HOLE ALMOST AS LARGE AS THE ONE IT HAD SET OUT
TO CLOSE. 

PETITIONERS SUGGEST THAT CONGRESS, IF IT TRULY INTENDED TO DISALLOW
LOSSES ON INTRA-FAMILY TRANSACTIONS THROUGH THE MARKET, WOULD PROBABLY
HAVE DONE SO BY AN AMENDMENT TO THE WASH SALES PROVISIONS,  FN16
MAKING THEM APPLICABLE WHERE THE SELLER AND BUYER WERE MEMBERS OF THE
SAME FAMILY, AS WELL AS WHERE THEY WERE ONE AND THE SAME INDIVIDUAL. 
THIS EXTENSION OF THE WASH SALES PROVISIONS, HOWEVER, WOULD BAR ONLY
ONE PARTICULAR MEANS OF ACCOMPLISHING THE EVIL AT WHICH SEC. 24(B) WAS
AIMED, AND THE NECESSITY FOR A COMPREHENSIVE REMEDY WOULD HAVE
REMAINED. 

NOR CAN WE AGREE THAT CONGRESS' OMISSION FROM SEC. 24(B) OF ANY
PRESCRIBED TIME INTERVAL, COMPARABLE IN FUNCTION TO THAT IN THE WASH
SALES PROVISIONS, INDICATES THAT SEC. 24(B) WAS NOT INTENDED TO APPLY
TO INTRA-FAMILY TRANSFERS THROUGH THE EXCHANGE.  PETITIONERS' ARGUMENT
IS PREDICATED ON THE DIFFICULTY WHICH COURTS MAY HAVE IN DETERMINING
WHETHER THE ELAPSE OF CERTAIN PERIODS OF TIME BETWEEN ONE SPOUSE'S SALE
AND THE OTHER'S PURCHASE OF LIKE SECURITIES ON THE EXCHANGE IS OF GREAT
ENOUGH IMPORTANCE IN ITSELF TO BREAK THE CONTINUITY OF THE INVESTMENT
AND MAKE SEC. 24(B) INAPPLICABLE. 

PRECISELY THE SAME DIFFICULTY MAY ARISE, HOWEVER, IN THE CASE OF AN
INTRA-FAMILY TRANSFER THROUGH AN INDIVIDUAL INTERMEDIARY, WHO, BY PRE
ARRANGEMENT, BUYS FROM ONE SPOUSE AT THE MARKET PRICE AND A SHORT TIME
ALTER SELLS THE IDENTICAL CERTIFICATES TO THE OTHER AT THE PRICE
PREVAILING AT THE TIME OF SALE.  THE OMISSION OF A PRESCRIBED TIME
INTERVAL NEGATES THE APPLICABILITY OF SEC. 24(B) TO THE FORMER TYPE OF
TRANSFER NO MORE THAN IT DOES TO THE LATTER.  BUT IF WE SHOULD HOLD
THAT IT NEGATED BOTH, WE WOULD HAVE CONVERTED THE SECTION INTO A MERE
TRAP FOR THE UNWARY.  FN17 

PETITIONERS ALSO URGE THAT, WHATEVER MAY HAVE BEEN CONGRESS' INTENT,
ITS DESIGNATION IN SEC. 24(B) OF SALES "BETWEEN" MEMBERS OF A FAMILY IS
NOT ADEQUATE TO COMPREHEND THE TRANSACTIONS IN THIS CASE, WHICH
CONSISTED ONLY OF A SALE OF STOCK BY ONE OF THE PETITIONERS TO AN
UNKNOWN STRANGER, AND THE PURCHASE OF DIFFERENT CERTIFICATES OF STOCK
BY THE OTHER PETITIONER, PRESUMABLY FROM ANOTHER STRANGER. 

WE CAN UNDERSTAND HOW THIS PHRASEOLOGY, IF CONSTRUED LITERALLY AND
OUT OF CONTEXT, MIGHT BE THOUGHT TO MEAN ONLY DIRECT INTRA-FAMILY
TRANSFERS.  BUT PETITIONERS CONCEDE THAT THE EXPRESS STATUTORY
REFERENCE TO SALES MADE "DIRECTLY OR INDIRECTLY" PRECLUDES THAT
CONSTRUCTION.  MOREOVER, WE CAN DISCOVER IN THIS LANGUAGE NO
IMPLICATION WHATSOEVER THAT AN INDIRECT INTRA-FAMILY SALE OF FUNGIBLES
IS OUTSIDE THE STATUTE UNLESS THE UNITS SOLD BY ONE SPOUSE AND THOSE
BOUGHT BY THE OTHER ARE IDENTICAL.  INDEED, IF WE ACCEPTED PETITIONERS'
CONSTRUCTION OF THE STATUTE, WE THINK WE WOULD BE READING INTO IT A
CRIPPLING EXCEPTION WHICH IS NOT THERE. 

FINALLY, WE MUST REJECT PETITIONERS' ASSERTION THAT THE DOBSON RULE
FN18  CONTROLS THIS CASE.  THE TAX COURT FOUND THE FACTS AS WE STATED
THEM, AND THEN OVERRULED THE COMMISSIONER'S DETERMINATION BECAUSE IT
THOUGHT THAT SEC. 24(B) HAD NO APPLICATION TO A TAXPAYER'S SALE OF
SECURITIES ON THE EXCHANGE TO AN UNKNOWN PURCHASER, REGARDLESS OF WHAT
OTHER CIRCUMSTANCES ACCOMPANIED THE SALE.  WE HAVE DECIDED OTHERWISE,
AND ON OUR CONSTRUCTION OF THE STATUTE, AND THE CONCEDED FACTS, THE TAX
COURT COULD NOT HAVE REACHED A RESULT CONTRARY TO OUR OWN.  FN19
AFFIRMED. 

FN1  THE MATERIAL PARTS OF SEC. 24(B) ARE AS FOLLOWS: 

"(B)  LOSSES FROM SALES OR EXCHANGES OF PROPERTY.  - 

"(1)  LOSSES DISALLOWED.  - IN COMPUTING NET INCOME NO DEDUCTION
SHALL IN ANY CASE BE ALLOWED IN RESPECT OF LOSSES FROM SALES OR
EXCHANGES OF PROPERTY, DIRECTLY OR INDIRECTLY - 

"(A)  BETWEEN MEMBERS OF A FAMILY, AS DEFINED IN PARAGRAPH (2)(D); 

"(B)  EXCEPT IN THE CASE OF DISTRIBUTIONS IN LIQUIDATION, BETWEEN AN
INDIVIDUAL AND A CORPORATION MORE THAN 50 PER CENTUM IN VALUE OF THE
OUTSTANDING STOCK OF WHICH IS OWNED, DIRECTLY OR INDIRECTLY, BY OR FOR
SUCH INDIVIDUAL; 

"(C)  EXCEPT IN THE CASE OF DISTRIBUTIONS IN LIQUIDATION, BETWEEN TWO
CORPORATIONS MORE THAN 50 PER CENTUM IN VALUE OF THE OUTSTANDING STOCK
OF EACH OF WHICH IS OWNED, DIRECTLY OR INDIRECTLY, BY OR FOR THE SAME
INDIVIDUAL, IF EITHER ONE OF SUCH CORPORATIONS, WITH RESPECT TO THE
TAXABLE YEAR OF THE CORPORATION PRECEDING THE DATE OF THE SALE OR
EXCHANGE WAS, UNDER THE LAW APPLICABLE TO SUCH TAXABLE YEAR, A PERSONAL
HOLDING COMPANY OR A FOREIGN PERSONAL HOLDING COMPANY; 

"(D)  BETWEEN A GRANTOR AND A FIDUCIARY OF ANY TRUST; 

"(E)  BETWEEN THE FIDUCIARY OF A TRUST AND THE FIDUCIARY OF ANOTHER
TRUST, IF THE SAME PERSON IS A GRANTOR WITH RESPECT TO EACH TRUST; OR 

"(F)  BETWEEN A FIDUCIARY OF A TRUST AND A BENEFICIARY OF SUCH
TRUST."    SECTION 24(B)(2)(D) DEFINES THE FAMILY OF AN INDIVIDUAL TO
INCLUDE "ONLY HIS BROTHERS AND SISTERS (WHETHER BY THE WHOLE OR HALF
BLOOD), SPOUSE, ANCESTORS, AND LINEAL DESCENDANTS; ...." 

FN2  45 B.T.A. 478, AFFIRMED, 132 F.2D 660(C.C.A.2). 

FN3  5 T.C. 623. 

FN4  158 F.2D 637(C.C.A.6). 

FN5  330 U.S. 814.  IN NO. 946, THE PETITION FOR CERTIORARI OF THE
ESTATE OF SUSAN P. MCWILLIAMS, THE DECEASED MOTHER OF JOHN P.
MCWILLIAMS, WAS GRANTED AT THE SAME TIME AS THE PETITIONS IN NOS. 945
AND 947, AND THE THREE CASES WERE CONSOLIDATED IN THIS COURT.  AS ALL
THREE PRESENT THE SAME MATERIAL FACTS AND RAISE PRECISELY THE SAME
ISSUES, NO FURTHER REFERENCE WILL BE MADE TO THE SEVERAL CASES
SEPARATELY. 

FN6  THE DECISION OF THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT IN COMMISSIONER V. ICKELHEIMER, SUPRA, NOTE 2, IS IN CONFLICT
ON THIS POINT WITH THE DECISION OF THE CIRCUIT COURT OF APPEALS FOR THE
SIXTH CIRCUIT IN THE PRESENT CASE, AND ALSO WITH THAT OF THE CIRCUIT
COURT OF APPEALS FOR THE FOURTH CIRCUIT IN COMMISSIONER V. KOHN, 158
F.2D 32. 

FN7  COMMISSIONER V. HALE, 67 F.2D 561(C.C.A.1); ZIMMERMANN V.
COMMISSIONER, 36 B.T.A. 279, REVERSED ON OTHER GROUNDS, 100 F.2D
1023(C.C.A.3); UIHLEIN V. COMMISSIONER, 30 B.T.A. 399, AFFIRMED, 82
F.2D 944(C.C.A.7). 

FN8  SEE H. REP. NO. 1546, 75TH CONG., 1ST SESS., P. 26(1939-1 CUM.
BULL.  (PART 2) 704, 722-723).  SEE ALSO CASES CITED IN NOTE 7, SUPRA. 

FN9  THE PROVISIONS OF SEC. 24(B)(1)(A) AND (B) OF THE INTERNAL
REVENUE CODE ORIGINATED IN SEC. 24(A)(6) OF THE REVENUE ACT OF 1934, 48
STAT. 680, 691.  THESE PROVISIONS WERE REENACTED WITHOUT CHANGE AS SEC.
24(A)(6) OF THE REVENUE ACT OF 1936, 49 STAT. 1648, 1662, AND THE
PROVISIONS OF SEC. 24(B)(1)(C), (D), (E), AND (F) OF THE CODE WERE
ADDED BY SEC. 301 OF THE 1937 ACT, 50 STAT. 813, 827. 

FN10  CF. SHOENBERG V. COMMISSIONER, 77 F.2D 446(C.C.A.8); COLE V.
HELBURN, 4 F.SUPP.  230; ZIMMERMANN V. COMMISSIONER, SUPRA, NOTE 7. 

FN11  SEE H. REP. NO. 1546, 75TH CONG., 1ST SESS., P. 26, SUPRA, NOTE
8. 

FN12  SEE THE TEXT OF SEC. 24(B)(1), QUOTED IN NOTE 1. 

FN13  H. REP. NO. 704, 73D CONG., 2D SESS., P. 23(1939-1 CUM. BULL. 
(PART 2) 554, 571); S. REP. NO. 558, 73D CONG., 2D SESS., P. 27(1939-1
CUM. BULL.  (PART 2) 586, 607). 

FN14  THE TYPE OF SITUATIONS TO WHICH THESE PROVISIONS APPLIED WAS
DESCRIBED AS BEING THAT "IN WHICH, DUE TO FAMILY RELATIONSHIPS OR
FRIENDLY CONTROL, ARTIFICIAL LOSSES MIGHT BE CREATED FOR TAX
PURPOSES."  H. REP. NO. 1546, 75TH CONG., 1ST SESS., P. 28(1939-1 CUM.
BULL.  (PART 2) 704, 724). 

FN15  81 CONG. REC. 9019.  REPRESENTATIVE HILL, CHAIRMAN OF A HOUSE
SUBCOMMITTEE ON THE INCOME-TAX LAWS, EXPLAINED TO THE HOUSE WITH
REFERENCE TO THE 1934 PROVISIONS THAT THE COMMITTEE HAD "PROVIDED IN
THIS BILL THAT TRANSFERS BETWEEN MEMBERS OF THE FAMILY FOR THE PURPOSE
OF CREATING A LOSS TO BE OFFSET AGAINST ORDINARY INCOME SHALL NOT BE
RECOGNIZED FOR SUCH DEDUCTION PURPOSES."  78 CONG. REC. 2662. 

FN16  SEC. 118 OF THE INTERNAL REVENUE CODE, WHICH FIRST APPEARED IN
ITS PRESENT FORM AS SEC. 118 OF THE REVENUE ACT OF 1932, 47 STAT. 169,
208, PROVIDES IN PART AS FOLLOWS: 

"SEC. 118.  LOSS FROM WASH SALES OF STOCK OR SECURITIES. 

"(A)  IN THE CASE OF ANY LOSS CLAIMED TO HAVE BEEN SUSTAINED FROM ANY
SALE OR OTHER DISPOSITION OF SHARES OF STOCK OR SECURITIES WHERE IT
APPEARS THAT, WITHIN A PERIOD BEGINNING 30 DAYS BEFORE THE DATE OF SUCH
SALE OR DISPOSITION AND ENDING 30 DAYS AFTER SUCH DATE, THE TAXPAYER
HAS ACQUIRED (BY PURCHASE OR BY AN EXCHANGE UPON WHICH THE ENTIRE
AMOUNT OF GAIN OR LOSS WAS RECOGNIZED BY LAW), OR HAS ENTERED INTO A
CONTRACT OR OPTION SO TO ACQUIRE, SUBSTANTIALLY IDENTICAL STOCK OR
SECURITIES, THEN NO DEDUCTION FOR THE LOSS SHALL BE ALLOWED UNDER
23(F) UNLESS THE CLAIM IS MADE BY A CORPORATION, A DEALER IN STOCKS OR
SECURITIES, AND WITH RESPECT TO A TRANSACTION MADE IN THE ORDINARY
COURSE OF ITS BUSINESS." 

FN17  WE HAVE NOTED PETITIONERS' SUGGESTION THAT A TAXPAYER IS
ASSURED, UNDER THE WASH SALES PROVISIONS, OF THE RIGHT TO DEDUCT THE
LOSS INCURRED ON A SALE OF SECURITIES, EVEN THOUGH HE HIMSELF BUYS
SIMILAR SECURITIES THIRTY-ONE DAYS LATER; AND THAT HE SHOULD CERTAINLY
NOT BE PRECLUDED BY SEC. 24(B) FROM CLAIMING A SIMILAR LOSS IF THE
TAXPAYER'S SPOUSE, INSTEAD OF THE TAXPAYER, MAKES THE PURCHASE UNDER
THE SAME CIRCUMSTANCES.  WE DO NOT FEEL IMPELLED TO COMMENT ON THESE
PROPOSITIONS, HOWEVER, IN A CASE IN WHICH THE SALE AND PURCHASE WERE
PRACTICALLY SIMULTANEOUS AND THE NET CONSIDERATION RECEIVED BY ONE
SPOUSE AND THAT PAID BY THE OTHER DIFFERED ONLY IN THE AMOUNT OF
BROKERS' COMMISSIONS AND EXCISE TAXES. 

FN18  DOBSON V. COMMISSIONER, 320 U.S. 489. 

FN19  CF. TRUST OF BINGHAM V. COMMISSIONER, 325 U.S. 365. 

MR. JUSTICE BURTON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :

















UNITED STATES V. SILK, 331 U.S. 704 


ARGUED MARCH 10, 1947.  - DECIDED JUNE 16, 1947.  - 155 F.2D 356,
AFFIRMED IN PART AND REVERSED IN PART.  - 156 F.2D 412, AFFIRMED. 


1.  IN DETERMINING WHETHER PARTICULAR WORKERS ARE INDEPENDENT
CONTRACTORS OR "EMPLOYEES" WITHIN THE MEANING OF THE SOCIAL SECURITY
ACT, THE SAME RULES ARE APPLICABLE AS WERE APPLIED BY THIS COURT TO THE
NATIONAL LABOR RELATIONS ACT IN LABOR BOARD V. HEARST PUBLICATIONS, 322
U.S. 111.  PP. 713-714. 

2.  UNLOADERS OF COAL WHO PROVIDE THEIR OWN TOOLS, WORK ONLY WHEN
THEY WISH TO WORK AND ARE PAID AN AGREED PRICE PER TON TO UNLOAD COAL
FROM RAILROAD CARS, HELD, IN THE CIRCUMSTANCES OF THIS CASE, TO BE
"EMPLOYEES" WITHIN THE MEANING OF THE SOCIAL SECURITY ACT.  PP. 706,
716-718. 

3.  TRUCK DRIVERS WHO OWN THEIR OWN TRUCKS, PAY THE EXPENSES OF THEIR
OPERATION, EMPLOY AND PAY THEIR OWN HELPERS AND RECEIVE COMPENSATION ON
A PIECE-WORK OR PERCENTAGE BASIS, HELD, IN THE CIRCUMSTANCES OF THESE
CASES, TO BE INDEPENDENT CONTRACTORS AND NOT "EMPLOYEES" WITHIN THE
MEANING OF THE SOCIAL SECURITY ACT.  PP. 706-710, 718-719. 

UNITED STATES V. SILK, DOING BUSINESS AS ALBERT SILK COAL CO. 

NO. 312.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT.* 

*TOGETHER WITH NO. 673, HARRISON, COLLECTOR OF INTERNAL REVENUE, V.
GREYVAN LINES, INC., ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE SEVENTH CIRCUIT, ARGUED MARCH 10, 11, 1947. 

NO. 312.  THE DISTRICT COURT GRANTED RESPONDENTS A JUDGMENT FOR A
REFUND OF SOCIAL SECURITY TAXES.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  155 F.2D 356.  THIS COURT GRANTED CERTIORARI.  329 U.S.
702.  AFFIRMED IN PART AND REVERSED IN PART, P. 719. 

FN3  155 F.2D 356. 

NO. 673.  THE DISTRICT COURT GRANTED RESPONDENT A JUDGMENT FOR A
REFUND OF SOCIAL SECURITY TAXES.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  156 F.2D 412.  THIS COURT GRANTED CERTIORARI.  329 U.S.
709.  AFFIRMED, P. 719. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

WE CONSIDER TOGETHER THE ABOVE TWO CASES.  BOTH INVOLVE SUITS TO
RECOVER SUMS EXACTED FROM BUSINESSES BY THE COMMISSIONER OF INTERNAL
REVENUE AS EMPLOYMENT TAXES ON EMPLOYERS UNDER THE SOCIAL SECURITY
ACT.  FN1  IN BOTH INSTANCES THE TAXES WERE COLLECTED ON ASSESSMENTS
MADE ADMINISTRATIVELY BY THE COMMISSIONER BECAUSE HE CONCLUDED THE
PERSONS HERE INVOLVED WERE EMPLOYEES OF THE TAXPAYERS.  BOTH CASES TURN
ON A DETERMINATION AS TO WHETHER THE WORKERS INVOLVED WERE EMPLOYEES
UNDER THAT ACT OR WHETHER THEY WERE INDEPENDENT CONTRACTORS.  WRITS OF
CERTIORARI WERE GRANTED, 329 U.S. 702 AND 329 U.S. 709, BECAUSE OF THE
GENERAL IMPORTANCE IN THE COLLECTION OF SOCIAL SECURITY TAXES OF
DECIDING WHAT ARE THE APPLICABLE STANDARDS FOR THE DETERMINATION OF
EMPLOYEES UNDER THE ACT.  VARYING STANDARDS HAVE BEEN APPLIED IN THE
FEDERAL COURTS.  FN2 

RESPONDENT IN NO. 312, ALBERT SILK, DOING BUSINESS AS THE ALBERT SILK
COAL CO., SUED THE UNITED STATES, PETITIONER, TO RECOVER TAXES ALLEGED
TO HAVE BEEN ILLEGALLY ASSESSED AND COLLECTED FROM RESPONDENT FOR THE
YEARS 1936 THROUGH 1939 UNDER THE SOCIAL SECURITY ACT.  THE TAXES WERE
LEVIED ON RESPONDENT AS AN EMPLOYER OF CERTAIN WORKMEN SOME OF WHOM
WERE ENGAGED IN UNLOADING RAILWAY COAL CARS AND THE OTHERS IN MAKING
RETAIL DELIVERIES OF COAL BY TRUCK. 

RESPONDENT SELLS COAL AT RETAIL IN THE CITY OF TOPEKA, KANSAS.  HIS
COALYARD CONSISTS OF TWO BUILDINGS, ONE FOR AN OFFICE AND THE OTHER A
GATHERING PLACE FOR WORKERS, RAILROAD TRACKS UPON WHICH CARLOADS OF
COAL ARE DELIVERED BY THE RAILROAD, AND BINS FOR THE DIFFERENT TYPES OF
COAL.  RESPONDENT PAYS THOSE WHO WORK AS UNLOADERS AN AGREED PRICE PER
TON TO UNLOAD COAL FROM THE RAILROAD CARS.  THESE MEN COME TO THE YARD
WHEN AND AS THEY PLEASE AND ARE ASSIGNED A CAR TO UNLOAD AND A PLACE TO
PUT THE COAL.  THEY FURNISH THEIR OWN TOOLS, WORK WHEN THEY WISH AND
WORK FOR OTHERS AT WILL.  ONE OF THESE UNLOADERS TESTIFIED THAT HE
WORKED AS REGULARLY "AS A MAN HAS TO WHEN HE HAS TO EAT" BUT THERE WAS
ALSO TESTIMONY THAT SOME OF THE UNLOADERS WERE FLOATERS WHO CAME TO THE
YARD ONLY INTERMITTENTLY. 

RESPONDENT OWNS NO TRUCKS HIMSELF BUT CONTRACTS WITH WORKERS WHO OWN
THEIR OWN TRUCKS TO DELIVER COAL AT A UNIFORM PRICE PER TON.  THIS IS
PAID TO THE TRUCKER BY THE RESPONDENT OUT OF THE PRICE HE RECEIVES FOR
THE COAL FROM THE CUSTOMER.  WHEN AN ORDER FOR COAL IS TAKEN IN THE
COMPANY OFFICE, A BELL IS RUNG WHICH RINGS IN THE BUILDING USED BY THE
TRUCKERS.  THE TRUCKERS HAVE VOLUNTARILY ADOPTED A CALL LIST UPON WHICH
THEIR NAMES COME UP IN TURN, AND THE TOP MAN ON THE LIST HAS AN
OPPORTUNITY TO DELIVER THE COAL ORDERED.  THE TRUCKERS ARE NOT
INSTRUCTED HOW TO DO THEIR JOBS, BUT ARE MERELY GIVEN A TICKET TELLING
THEM WHERE THE COAL IS TO BE DELIVERED AND WHETHER THE CHARGE IS TO BE
COLLECTED OR NOT.  ANY DAMAGE CAUSED BY THEM IS PAID FOR BY THE
COMPANY.  THE DISTRICT COURT FOUND THAT THE TRUCKERS COULD AND OFTEN
DID REFUSE TO MAKE A DELIVERY WITHOUT PENALTY.  FURTHER, THE COURT
FOUND THAT THE TRUCKERS MAY COME AND GO AS THEY PLEASE AND FREQUENTLY
DID LEAVE THE PREMISES WITHOUT PERMISSION.  THEY MAY AND DID HAUL FOR
OTHERS WHEN THEY PLEASED.  THEY PAY ALL THE EXPENSES OF OPERATING THEIR
TRUCKS, AND FURNISH EXTRA HELP NECESSARY TO THE DELIVERY OF THE COAL
AND ALL EQUIPMENT EXCEPT THE YARD STORAGE BINS.  NO RECORD IS KEPT OF
THEIR TIME.  THEY ARE PAID AFTER EACH TRIP, AT THE END OF THE DAY OR AT
THE END OF THE WEEK, AS THEY REQUEST. 

THE COLLECTOR RULED THAT THE UNLOADERS AND TRUCKERS WERE EMPLOYEES OF
THE RESPONDENT DURING THE YEARS 1936 THROUGH 1939 WITHIN THE MEANING OF
THE SOCIAL SECURITY ACT AND HE ACCORDINGLY ASSESSED ADDITIONAL TAXES
UNDER TITLES VIII AND IX OF THE SOCIAL SECURITY ACT AND SUBCHAPTERS A
AND C OF CHAPTER 9 OF THE INTERNAL REVENUE CODE.  RESPONDENT FILED A
CLAIM FOR A REFUND WHICH WAS DENIED.  HE THEN BROUGHT THIS ACTION. 
BOTH THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS  FN3 THOUGHT
THAT THE TRUCKERS AND UNLOADERS WERE INDEPENDENT CONTRACTORS AND
ALLOWED THE RECOVERY. 

RESPONDENT IN NO. 673, GREYVAN LINES, INC., A COMMON CARRIER BY MOTOR
TRUCK, SUED THE PETITIONER, A COLLECTOR OF INTERNAL REVENUE, TO RECOVER
EMPLOYMENT TAXES ALLEGED TO HAVE BEEN ILLEGALLY ASSESSED AND COLLECTED
FROM IT UNDER SIMILAR PROVISIONS OF THE SOCIAL SECURITY ACT INVOLVED IN
SILK'S CASE FOR THE YEARS OR PARTS OF YEARS 1937 THROUGH THE FIRST
QUARTER OF 1942.  FROM A HOLDING FOR THE RESPONDENT IN THE DISTRICT
COURT PETITIONER APPEALED.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  THE
CHIEF QUESTION IN THIS CASE IS WHETHER TRUCKMEN WHO PERFORM THE ACTUAL
SERVICE OF CARRYING THE GOODS SHIPPED BY THE PUBLIC ARE EMPLOYEES OF
THE RESPONDENT.  BOTH THE DISTRICT COURT AND THE CIRCUIT COURT OF
APPEALS  FN4  THOUGHT THAT THE TRUCKMEN WERE INDEPENDENT CONTRACTORS. 

THE RESPONDENT OPERATES ITS TRUCKING BUSINESS UNDER A PERMIT ISSUED
BY THE INTERSTATE COMMERCE COMMISSION UNDER THE "GRANDFATHER CLAUSE" OF
THE MOTOR CARRIER ACT.  32 M.C.C. 719, 723.  IT OPERATES THROUGHOUT
THIRTY-EIGHT STATES AND PARTS OF CANADA, CARRYING LARGELY HOUSEHOLD
FURNITURE.  WHILE ITS PRINCIPAL OFFICE IS IN CHICAGO, IT MAINTAINS
AGENCIES TO SOLICIT BUSINESS IN MANY OF THE LARGER CITIES OF THE AREAS
IT SERVES, FROM WHICH IT CONTRACTS TO MOVE GOODS.  AS EARLY AS 1930,
BEFORE THE PASSAGE OF THE SOCIAL SECURITY ACT, THE RESPONDENT ADOPTED
THE SYSTEM OF RELATIONS WITH THE TRUCKMEN HERE CONCERNED, WHICH GIVES
RISE TO THE PRESENT ISSUE.  THE SYSTEM WAS BASED ON CONTRACTS WITH THE
TRUCKMEN UNDER WHICH THE TRUCKMEN WERE REQUIRED TO HAUL EXCLUSIVELY FOR
THE RESPONDENT AND TO FURNISH THEIR OWN TRUCKS AND ALL EQUIPMENT AND
LABOR NECESSARY TO PICK UP, HANDLE AND DELIVER SHIPMENTS, TO PAY ALL
EXPENSES OF OPERATION, TO FURNISH ALL FIRE, THEFT, AND COLLISION
INSURANCE WHICH THE RESPONDENT MIGHT SPECIFY, TO PAY FOR ALL LOSS OR
DAMAGE TO SHIPMENTS AND TO INDEMNIFY THE COMPANY FOR ANY LOSS CAUSED IT
BY THE ACTS OF THE TRUCKMEN, THEIR SERVANTS AND EMPLOYEES, TO PAINT THE
DESIGNATION "GREYVAN LINES" ON THEIR TRUCKS, TO COLLECT ALL MONEY DUE
THE COMPANY FROM SHIPPERS OR CONSIGNEES, AND TO TURN IN SUCH MONEYS AT
THE OFFICE TO WHICH THEY REPORT AFTER DELIVERING A SHIPMENT, TO POST
BONDS WITH THE COMPANY IN THE AMOUNT OF $1,000 AND CASH DEPOSITS OF
$250 PENDING FINAL SETTLEMENT OF ACCOUNTS, TO PERSONALLY DRIVE THEIR
TRUCKS AT ALL TIMES OR BE PRESENT ON THE TRUCK WHEN A COMPETENT RELIEF
DRIVER WAS DRIVING (EXCEPT IN EMERGENCIES, WHEN A SUBSTITUTE MIGHT BE
EMPLOYED WITH THE APPROVAL OF THE COMPANY), AND TO FOLLOW ALL RULES,
REGULATIONS, AND INSTRUCTIONS OF THE COMPANY.  ALL CONTRACTS OR BILLS
OF LADING FOR THE SHIPMENT OF GOODS WERE TO BE BETWEEN THE RESPONDENT
AND THE SHIPPER.  THE COMPANY'S INSTRUCTIONS COVERED DIRECTIONS TO THE
TRUCKMEN AS TO WHERE AND WHEN TO LOAD FREIGHT.  IF FREIGHT WAS TENDERED
THE TRUCKMEN, THEY WERE UNDER OBLIGATION TO NOTIFY THE COMPANY SO THAT
IT COULD COMPLETE THE CONTRACT FOR SHIPMENT IN ITS OWN NAME.  AS
REMUNERATION, THE TRUCKMEN WERE TO RECEIVE FROM THE COMPANY A
PERCENTAGE OF THE TARIFF CHARGED BY THE COMPANY VARYING BETWEEN 50 AND
52% AND A BONUS UP TO 3% FOR SATISFACTORY PERFORMANCE OF THE SERVICE. 
THE CONTRACT WAS TERMINABLE AT ANY TIME BY EITHER PARTY.  THESE
TRUCKMEN WERE REQUIRED TO TAKE A SHORT COURSE OF INSTRUCTION IN THE
COMPANY'S METHODS OF DOING BUSINESS BEFORE CARRYING OUT THEIR
CONTRACTUAL OBLIGATIONS TO HAUL.  THE COMPANY MAINTAINED A STAFF OF
DISPATCHERS WHO ISSUED ORDERS FOR THE TRUCKMEN'S MOVEMENTS, ALTHOUGH
NOT THE ROUTES TO BE USED, AND TO WHICH THE TRUCKMEN, AT INTERVALS,
REPORTED THEIR POSITIONS.  CARGO INSURANCE WAS CARRIED BY THE COMPANY. 
ALL PERMITS, CERTIFICATES AND FRANCHISES "NECESSARY TO THE OPERATION OF
THE VEHICLE IN THE SERVICE OF THE COMPANY AS A MOTOR CARRIER UNDER ANY
FEDERAL OR STATE LAW" WERE TO BE OBTAINED AT THE COMPANY'S EXPENSE. 

THE RECORD SHOWS THE FOLLOWING ADDITIONAL UNDISPUTED FACTS, NOT
CONTAINED IN THE FINDINGS.  A MANUAL OF INSTRUCTIONS, GIVEN BY THE
RESPONDENT TO THE TRUCKMEN, AND A CONTRACT BETWEEN THE COMPANY AND
LOCAL NO. 711 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA WERE INTRODUCED IN
EVIDENCE.  IT SUFFICES TO SAY THAT THE MANUAL PURPORTED TO REGULATE IN
DETAIL THE CONDUCT OF THE TRUCKMEN IN THE PERFORMANCE OF THEIR DUTIES,
AND THAT THE AGREEMENT WITH THE UNION PROVIDED THAT ANY TRUCKMAN MUST
FIRST BE A MEMBER OF THE UNION, AND THAT GRIEVANCES WOULD BE REFERRED
TO REPRESENTATIVES OF THE COMPANY AND THE UNION.  A COMPANY OFFICIAL
TESTIFIED THAT THE MANUAL WAS IMPRACTICAL AND THAT NO ATTEMPT WAS MADE
TO ENFORCE IT.  WE UNDERSTAND THE UNION CONTRACT WAS IN EFFECT.  THE
COMPANY HAD SOME TRUCKS DRIVEN BY TRUCKMEN WHO WERE ADMITTEDLY COMPANY
EMPLOYEES.  OPERATIONS BY THE COMPANY UNDER THE TWO SYSTEMS WERE
CARRIED OUT IN THE SAME MANNER.  THE INSURANCE REQUIRED BY THE COMPANY
WAS CARRIED UNDER A BLANKET COMPANY POLICY FOR WHICH THE TRUCKMEN WERE
CHARGED PROPORTIONATELY. 

THE SOCIAL SECURITY ACT OF 1935 WAS THE RESULT OF LONG CONSIDERATION
BY THE PRESIDENT AND CONGRESS OF THE EVIL OF THE BURDENS THAT REST UPON
LARGE NUMBERS OF OUR PEOPLE BECAUSE OF THE INSECURITIES OF MODERN LIFE,
PARTICULARLY OLD AGE AND UNEMPLOYMENT.  IT WAS ENACTED IN AN EFFORT TO
COORDINATE THE FORCES OF GOVERNMENT AND INDUSTRY FOR SOLVING THE
PROBLEMS.  FN5  THE PRINCIPAL METHOD ADOPTED BY CONGRESS TO ADVANCE ITS
PURPOSES WAS TO PROVIDE FOR PERIODIC PAYMENTS IN THE NATURE OF
ANNUITIES TO THE ELDERLY AND COMPENSATION TO WORKERS DURING PERIODS OF
UNEMPLOYMENT.  EMPLOYMENT TAXES, SUCH AS WE ARE HERE CONSIDERING, ARE
NECESSARY TO PRODUCE THE REVENUE FOR FEDERAL PARTICIPATION IN THE
PROGRAM OF ALLEVIATION.  EMPLOYERS DO NOT PAY TAXES ON CERTAIN GROUPS
OF EMPLOYEES, SUCH AS AGRICULTURAL OR DOMESTIC WORKERS BUT NONE OF
THESE EXCEPTIONS ARE APPLICABLE TO THESE CASES.  SECS. 811 AND 907. 
TAXES ARE LAID AS EXCISES ON A PERCENTAGE OF WAGES PAID THE NONEXEMPT
EMPLOYEES.  SECS. 804 AND 901; I.R.C. SECS. 1410, 1600.  "WAGES" MEANS
ALL REMUNERATION FOR THE EMPLOYMENT THAT IS COVERED BY THE ACT, CASH OR
OTHERWISE.  SECS. 811, 907; I.R.C. SECS. 1426, 1607(B).  "EMPLOYMENT"
MEANS "ANY SERVICE, OF WHATEVER NATURE, PERFORMED  ... BY AN EMPLOYEE
FOR HIS EMPLOYER, EXCEPT  ...  AGRICULTURAL LABOR" ET CETERA.  SECS.
811(B), 907(C); I.R.C. SECS. 1426(B), 1607(C).  AS A COROLLARY TO THE
COVERAGE OF EMPLOYEES WHOSE WAGES ARE THE BASIS FOR THE EMPLOYMENT
TAXES UNDER THE TAX SECTIONS OF THE SOCIAL SECURITY LEGISLATION, RIGHTS
TO BENEFIT PAYMENTS UNDER FEDERAL OLD AGE INSURANCE DEPEND UPON THE
RECEIPT OF WAGES AS EMPLOYEES UNDER THE SAME SECTIONS.  53 STAT. 1360,
SECS. 202, 209(A), (B), (G), 205(C)(1).  SEE SOCIAL SECURITY BOARD V.
NIEROTKO, 327 U.S. 358.  THIS RELATIONSHIP BETWEEN THE TAX SECTIONS AND
THE BENEFIT SECTIONS EMPHASIZES THE UNDERLYING PURPOSE OF THE
LEGISLATION - THE PROTECTION OF ITS BENEFICIARIES FROM SOME OF THE
HARDSHIPS OF EXISTENCE.  HELVERING V. DAVIS, SUPRA, 640.  NO DEFINITION
OF EMPLOYER OR EMPLOYEE APPLICABLE TO THESE CASES OCCURS IN THE ACT. 
SEE SEC. 907(A) AND I.R.C. SEC. 1607(A).  COMPARE, AS TO CARRIER
EMPLOYMENT, I.R.C. SEC. 1532(D), AS AMENDED BY 60 STAT. 722, SEC. 1. 
NOTHING THAT IS HELPFUL IN DETERMINING THE SCOPE OF THE COVERAGE OF THE
TAX SECTIONS OF THE SOCIAL SECURITY ACT HAS COME TO OUR ATTENTION IN
THE LEGISLATIVE HISTORY OF THE PASSAGE OF THE ACT OR AMENDMENTS
THERETO. 

SINCE CONGRESS HAS MADE CLEAR BY ITS MANY EXEMPTIONS, SUCH AS, FOR
EXAMPLE, THE BROAD CATEGORIES OF AGRICULTURAL LABOR AND DOMESTIC
SERVICE, 53 STAT. 1384, 1393, THAT IT WAS NOT ITS PURPOSE TO MAKE THE
ACT COVER THE WHOLE FIELD OF SERVICE TO EVERY BUSINESS ENTERPRISE, THE
VERY SPECIFICITY OF THE EXEMPTIONS, HOWEVER, AND THE GENERALITY OF THE
EMPLOYMENT DEFINITIONS  FN6  INDICATES THAT THE TERMS "EMPLOYMENT" AND
"EMPLOYEE," ARE TO BE CONSTRUED TO ACCOMPLISH THE PURPOSES OF THE
LEGISLATION.  AS THE FEDERAL SOCIAL SECURITY LEGISLATION IS AN ATTACK
ON RECOGNIZED EVILS IN OUR NATIONAL ECONOMY, A CONSTRICTED
INTERPRETATION OF THE PHRASING BY THE COURTS WOULD NOT COMPORT WITH ITS
PURPOSE.  SUCH AN INTERPRETATION WOULD ONLY MAKE FOR A CONTINUANCE, TO
A CONSIDERABLE DEGREE, OF THE DIFFICULTIES FOR WHICH THE REMEDY WAS
DEVISED AND WOULD INVITE ADROIT SCHEMES BY SOME EMPLOYERS AND EMPLOYEES
TO AVOID THE IMMEDIATE BURDENS AT THE EXPENSE OF THE BENEFITS SOUGHT BY
THE LEGISLATION.  FN7  THESE CONSIDERATIONS HAVE HERETOFORE GUIDED OUR
CONSTRUCTION OF THE ACT.  BUCKSTAFF BATH HOUSE CO. V. MCKINLEY, 308
U.S. 358; SOCIAL SECURITY BOARD V. NIEROTKO, 327 U.S. 358.    OF
COURSE, THIS DOES NOT MEAN THAT ALL WHO RENDER SERVICE TO AN INDUSTRY
ARE EMPLOYEES.  COMPARE METCALF & EDDY V. MITCHELL, 269 U.S. 514, 520. 
OBVIOUSLY THE PRIVATE CONTRACTOR WHO UNDERTAKES TO BUILD AT A FIXED
PRICE OR ON COST-PLUS A NEW PLANT ON SPECIFICATIONS IS NOT AN EMPLOYEE
OF THE INDUSTRY THUS SERVED NOR ARE HIS EMPLOYEES.  THE DISTRIBUTOR WHO
UNDERTAKES TO MARKET AT HIS OWN RISK THE PRODUCT OF ANOTHER, OR THE
PRODUCER WHO AGREES SO TO MANUFACTURE FOR ANOTHER, ORDINARILY CANNOT BE
SAID TO HAVE THE EMPLOYER-EMPLOYEE RELATIONSHIP.  PRODUCTION AND
DISTRIBUTION ARE DIFFERENT SEGMENTS OF BUSINESS.  THE PURPOSES OF THE
LEGISLATION ARE NOT FRUSTRATED BECAUSE THE GOVERNMENT COLLECTS
EMPLOYMENT TAXES FROM THE DISTRIBUTOR INSTEAD OF THE PRODUCER OR THE
OTHER WAY AROUND. 

THE PROBLEM OF DIFFERENTIATING BETWEEN EMPLOYEE AND AN INDEPENDENT
CONTRACTOR, OR BETWEEN AN AGENT AND AN INDEPENDENT CONTRACTOR, HAS
GIVEN DIFFICULTY THROUGH THE YEARS BEFORE SOCIAL LEGISLATION MULTIPLIED
ITS IMPORTANCE.  WHEN THE MATTER AROSE IN THE ADMINISTRATION OF THE
NATIONAL LABOR RELATIONS ACT, WE POINTED OUT THAT THE LEGAL STANDARDS
TO FIX RESPONSIBILITY FOR ACTS OF SERVANTS, EMPLOYEES OR AGENTS HAD NOT
BEEN REDUCED TO SUCH CERTAINTY THAT IT COULD BE SAID THERE WAS "SOME
SIMPLE, UNIFORM AND EASILY APPLICABLE TEST."  THE WORD "EMPLOYEE," WE
SAID, WAS NOT THERE USED AS A WORD OF ART, AND ITS CONTENT IN ITS
CONTEXT WAS A FEDERAL PROBLEM TO BE CONSTRUED "IN THE LIGHT OF THE
MISCHIEF TO BE CORRECTED AND THE END TO BE ATTAINED."  WE CONCLUDED
THAT, SINCE THAT END WAS THE ELIMINATION OF LABOR DISPUTES AND
INDUSTRIAL STRIFE, "EMPLOYEES" INCLUDED WORKERS WHO WERE SUCH AS A
MATTER OF ECONOMIC REALITY.  THE AIM OF THE ACT WAS TO REMEDY THE
INEQUALITY OF BARGAINING POWER IN CONTROVERSIES OVER WAGES, HOURS AND
WORKING CONDITIONS.  WE REJECTED THE TEST OF THE "TECHNICAL CONCEPTS
PERTINENT TO AN EMPLOYER'S LEGAL RESPONSIBILITY TO THIRD PERSONS FOR
ACTS OF HIS SERVANTS."  THIS IS OFTEN REFERRED TO AS POWER OF CONTROL,
WHETHER EXERCISED OR NOT, OVER THE MANNER OF PERFORMING SERVICE TO THE
INDUSTRY.  RESTATEMENT OF THE LAW, AGENCY, SEC. 220.  WE APPROVED THE
STATEMENT OF THE NATIONAL LABOR RELATIONS BOARD THAT "THE PRIMARY
CONSIDERATION IN THE DETERMINATION OF THE APPLICABILITY OF THE
STATUTORY DEFINITION IS WHETHER EFFECTUATION OF THE DECLARED POLICY AND
PURPOSES OF THE ACT COMPREHEND SECURING TO THE INDIVIDUAL THE RIGHTS
GUARANTEED AND PROTECTION AFFORDED BY THE ACT."  LABOR BOARD V. HEARST
PUBLICATIONS, 322 U.S. 111, 120, 123, 124, 128, 129, 131. 

APPLICATION OF THE SOCIAL SECURITY LEGISLATION SHOULD FOLLOW THE SAME
RULE THAT WE APPLIED TO THE NATIONAL LABOR RELATIONS ACT IN THE HEARST
CASE.  THIS, OF COURSE, DOES NOT LEAVE COURTS FREE TO DETERMINE THE
EMPLOYER-EMPLOYEE RELATIONSHIP WITHOUT REGARD TO THE PROVISIONS OF THE
ACT.  THE TAXPAYER MUST BE AN "EMPLOYER" AND THE MAN WHO RECEIVES WAGES
AN "EMPLOYEE."  THERE IS NO INDICATION THAT CONGRESS INTENDED TO CHANGE
NORMAL BUSINESS RELATIONSHIPS THROUGH WHICH ONE BUSINESS ORGANIZATION
OBTAINED THE SERVICES OF ANOTHER TO PERFORM A PORTION OF PRODUCTION OR
DISTRIBUTION.  FEW BUSINESSES ARE SO COMPLETELY INTEGRATED THAT THEY
CAN THEMSELVES PRODUCE THE RAW MATERIAL, MANUFACTURE AND DISTRIBUTE THE
FINISHED PRODUCT TO THE ULTIMATE CONSUMER WITHOUT ASSISTANCE FROM
INDEPENDENT CONTRACTORS.  THE SOCIAL SECURITY ACT WAS DRAWN WITH THIS
INDUSTRIAL SITUATION AS A PART OF THE SURROUNDINGS IN WHICH IT WAS TO
BE ENFORCED.  WHERE A PART OF AN INDUSTRIAL PROCESS IS IN THE HANDS OF
INDEPENDENT CONTRACTORS, THEY ARE THE ONES WHO SHOULD PAY THE SOCIAL
SECURITY TAXES. 

THE LONG-STANDING REGULATIONS OF THE TREASURY AND THE FEDERAL
SECURITY AGENCY (H. DOC. 595, 79TH CONG., 2D SESS.) RECOGNIZE THAT
INDEPENDENT CONTRACTORS EXIST UNDER THE ACT.  THE PERTINENT PORTIONS
ARE SET OUT IN THE MARGIN.  FN8  CERTAINLY THE INDUSTRY'S RIGHT TO
CONTROL HOW "WORK SHALL BE DONE" IS A FACTOR IN THE DETERMINATION OF
WHETHER THE WORKER IS AN EMPLOYEE OR INDEPENDENT CONTRACTOR.  THE
GOVERNMENT POINTS OUT THAT THE REGULATIONS WERE CONSTRUED BY THE
COMMISSIONER OF INTERNAL REVENUE TO COVER THE CIRCUMSTANCES HERE
PRESENTED.  THIS IS SHOWN BY HIS ADDITIONAL TAX ASSESSMENTS.  OTHER
INSTANCES OF SUCH ADMINISTRATIVE DETERMINATIONS ARE CALLED TO OUR
ATTENTION.  FN9 

SO FAR AS THE REGULATIONS REFER TO THE EFFECT OF CONTRACTS, WE THINK
THEIR STATEMENT OF THE LAW CANNOT BE CHALLENGED SUCCESSFULLY. 
CONTRACTS, HOWEVER "SKILFULLY DEVISED," LUCAS V. EARL, 281 U.S. 111,
115, SHOULD NOT BE PERMITTED TO SHIFT TAX LIABILITY AS DEFINITELY FIXED
BY THE STATUTES.  FN10 

PROBABLY IT IS QUITE IMPOSSIBLE TO EXTRACT FROM THE STATUTE A RULE OF
THUMB TO DEFINE THE LIMITS OF THE EMPLOYER-EMPLOYEE RELATIONSHIP.  THE
SOCIAL SECURITY AGENCY AND THE COURTS WILL FIND THAT DEGREES OF
CONTROL, OPPORTUNITIES FOR PROFIT OR LOSS, INVESTMENT IN FACILITIES,
PERMANENCY OF RELATION AND SKILL REQUIRED IN THE CLAIMED INDEPENDENT
OPERATION ARE IMPORTANT FOR DECISION.  NO ONE IS CONTROLLING NOR IS THE
LIST COMPLETE.  THESE UNLOADERS AND TRUCKERS AND THEIR ASSISTANTS ARE
FROM ONE STANDPOINT AN INTEGRAL PART OF THE BUSINESSES OF RETAILING
COAL OR TRANSPORTING FREIGHT.  THEIR ENERGY, CARE AND JUDGMENT MAY
CONSERVE THEIR EQUIPMENT OR INCREASE THEIR EARNINGS BUT GREYVAN AND
SILK ARE THE DIRECTORS OF THEIR BUSINESSES.  ON THE OTHER HAND, THE
TRUCKMEN HIRE THEIR OWN ASSISTANTS, OWN THEIR TRUCKS, PAY THEIR OWN
EXPENSES, WITH MINOR EXCEPTIONS, AND DEPEND UPON THEIR OWN INITIATIVE,
JUDGMENT AND ENERGY FOR A LARGE PART OF THEIR SUCCESS. 

BOTH LOWER COURTS IN BOTH CASES HAVE DETERMINED THAT THESE WORKERS
ARE INDEPENDENT CONTRACTORS.  THESE INFERENCES WERE DRAWN BY THE COURTS
FROM FACTS CONCERNING WHICH THERE IS NO REAL DISPUTE.  THE EXCERPTS
FROM THE OPINIONS BELOW SHOW THE REASONS FOR THEIR CONCLUSIONS.  FN11 

GIVING FULL CONSIDERATION TO THE CONCURRENCE OF THE TWO LOWER COURTS
IN A CONTRARY RESULT, WE CANNOT AGREE THAT THE UNLOADERS IN THE SILK
CASE WERE INDEPENDENT CONTRACTORS.  FN12  THEY PROVIDED ONLY PICKS AND
SHOVELS.  THEY HAD NO OPPORTUNITY TO GAIN OR LOSE EXCEPT FROM THE WORK
OF THEIR HANDS AND THESE SIMPLE TOOLS.  THAT THE UNLOADERS DID NOT WORK
REGULARLY IS NOT SIGNIFICANT.  THEY DID WORK IN THE COURSE OF THE
EMPLOYER'S TRADE OR BUSINESS.  THIS BRINGS THEM UNDER THE COVERAGE OF
THE ACT.  FN13  THEY ARE OF THE GROUP THAT THE SOCIAL SECURITY ACT WAS
INTENDED TO AID.  SILK WAS IN A POSITION TO EXERCISE ALL NECESSARY
SUPERVISION OVER THEIR SIMPLE TASKS.  UNLOADERS HAVE OFTEN BEEN HELD TO
BE EMPLOYEES IN TORT CASES.  FN14 

THERE ARE CASES, TOO, WHERE DRIVER-OWNERS OF TRUCKS OR WAGONS HAVE
BEEN HELD EMPLOYEES  FN15  IN ACCIDENT SUITS AT TORT OR UNDER WORKMEN'S
COMPENSATION LAWS.  BUT WE AGREE WITH THE DECISIONS BELOW IN SILK AND
GREYVAN THAT WHERE THE ARRANGEMENTS LEAVE THE DRIVER-OWNERS SO MUCH
RESPONSIBILITY FOR INVESTMENT AND MANAGEMENT AS HERE, THEY MUST BE HELD
TO BE INDEPENDENT CONTRACTORS.  FN16  THESE DRIVER-OWNERS ARE SMALL
BUSINESSMEN.  THEY OWN THEIR OWN TRUCKS.  THEY HIRE THEIR OWN HELPERS. 
IN ONE INSTANCE THEY HAUL FOR A SINGLE BUSINESS, IN THE OTHER FOR ANY
CUSTOMER.  THE DISTINCTION, THOUGH IMPORTANT, IS NOT CONTROLLING.  IT
IS THE TOTAL SITUATION, INCLUDING THE RISK UNDERTAKEN, THE CONTROL
EXERCISED, THE OPPORTUNITY FOR PROFIT FROM SOUND MANAGEMENT, THAT MARKS
THESE DRIVER-OWNERS AS INDEPENDENT CONTRACTORS. 

NO. 312, UNITED STATES V. SILK, IS AFFIRMED IN PART AND REVERSED IN
PART. 

NO. 673, HARRISON V. GREYVAN LINES, INC., IS AFFIRMED. 

FN1  TITLES VIII AND IX, SOCIAL SECURITY ACT, 49 STAT. 636 AND 639,
AS REPEALED IN PART 53 STAT. 1. 

SEE INTERNAL REVENUE CODE, CHAP. 9, SUBCHAP.  A AND C. 

FN2  TEXAS CO. V. HIGGINS, 118 F.2D 636; JONES V. GOODSON, 121 F.2D
176; DEECY PRODUCTS CO. V. WELCH, 214 F.2D 592; AMERICAN OIL CO. V.
FLY, 135 F.2D 491; GLENN V. BEARD, 141 F.2D 376; MAGRUDER V. YELLOW CAB
CO., 141 F.2D 324; UNITED STATES V. MUTUAL TRUCKING CO., 141 F.2D 655;
GLENN V. STANDARD OIL CO., 148 F.2D 51, 53; MCGOWAN V. LAZEROFF, 148
F.2D 512; UNITED STATES V. WHOLESALE OIL CO., 154 F.2D 745; UNITED
STATES V. VOGUE, INC., 145 F.2D 609, 612; UNITED STATES V. ABERDEEN
AERIE NO. 24, 148 F.2D 655, 658; GRACE V. MAGRUDER, 148 F.2D 679, 680
81; NEVINS, INC. V. ROTHENSIES, 151 F.2D 189. 

FN3  155 F.2D 356. 

FN4  156 F.2D 412. 

FN5  MESSAGE OF THE PRESIDENT, JANUARY 17, 1935, AND REPORT OF THE
COMMITTEE ON ECONOMIC SECURITY, H. DOC. NO. 81, 74TH CONG., 1ST SESS.;
S. REP. NO. 628, 74TH CONG., 1ST SESS.; S. REP. NO. 734, 76TH CONG.,
1ST SESS.; H. REP. NO. 615, 74TH CONG., 1ST SESS.; H. REP. NO. 728,
76TH CONG., 1ST SESS.  STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548;
HELVERING V. DAVIS, 301 U.S. 619. 

FN6  SEE 53 STAT. 1384, 1393, "THE TERM 'EMPLOYMENT' MEANS ANY
SERVICE PERFORMED PRIOR TO JANUARY 1, 1940, WHICH WAS EMPLOYMENT AS
DEFINED IN THIS SECTION PRIOR TO SUCH DATE, AND ANY SERVICE, OF
WHATEVER NATURE, PERFORMED AFTER DECEMBER 31, 1939, WITHIN THE UNITED
STATES BY AN EMPLOYEE FOR THE PERSON EMPLOYING HIM, IRRESPECTIVE OF THE
CITIZENSHIP OR RESIDENCE OF EITHER, EXCEPT -  ...."  COMPARE 49 STAT.
639 AND 643. 

FN7  NOTHING TO SUGGEST TAX AVOIDANCE APPEARS IN THESE RECORDS. 

FN8  TREASURY REGULATIONS 90, PROMULGATED UNDER TITLE IX OF THE
SOCIAL SECURITY ACT, ART. 205: 

"GENERALLY THE RELATIONSHIP EXISTS WHEN THE PERSON FOR WHOM SERVICES
ARE PERFORMED HAS THE RIGHT TO CONTROL AND DIRECT THE INDIVIDUAL WHO
PERFORMS THE SERVICES, NOT ONLY AS TO THE RESULT TO BE ACCOMPLISHED BY
THE WORK BUT ALSO AS TO THE DETAILS AND MEANS BY WHICH THAT RESULT IS
ACCOMPLISHED.  THAT IS, AN EMPLOYEE IS SUBJECT TO THE WILL AND CONTROL
OF THE EMPLOYER NOT ONLY AS TO WHAT SHALL BE DONE BUT HOW IT SHALL BE
DONE....  THE RIGHT TO DISCHARGE IS ALSO AN IMPORTANT FACTOR INDICATING
THAT THE PERSON POSSESSING THAT RIGHT IS AN EMPLOYER.  OTHER FACTORS
CHARACTERISTIC OF AN EMPLOYER ARE THE FURNISHING OF TOOLS AND THE
FURNISHING OF A PLACE TO WORK, TO THE INDIVIDUAL WHO PERFORMS THE
SERVICES.  IN GENERAL, IF AN INDIVIDUAL IS SUBJECT TO THE CONTROL OR
DIRECTION OF ANOTHER MERELY AS TO THE RESULT TO BE ACCOMPLISHED BY THE
WORK AND NOT AS TO THE MEANS AND METHODS FOR ACCOMPLISHING THE RESULT,
HE IS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE. 

"IF THE RELATIONSHIP OF EMPLOYER AND EMPLOYEE EXISTS, THE DESIGNATION
OR DESCRIPTION OF THE RELATIONSHIP BY THE PARTIES AS ANYTHING OTHER
THAN THAT OF EMPLOYER AND EMPLOYEE IS IMMATERIAL.  THUS, IF TWO
INDIVIDUALS IN FACT STAND IN THE RELATION OF EMPLOYER AND EMPLOYEE TO
EACH OTHER, IT IS OF NO CONSEQUENCE THAT THE EMPLOYEE IS DESIGNATED AS
A PARTNER, COADVENTURER, AGENT, OR INDEPENDENT CONTRACTOR. 

"THE MEASUREMENT, METHOD, OR DESIGNATION OF COMPENSATION IS ALSO
IMMATERIAL, IF THE RELATIONSHIP OF EMPLOYER AND EMPLOYEE IN FACT
EXISTS. 

"INDIVIDUALS PERFORMING SERVICES AS INDEPENDENT CONTRACTORS ARE NOT
EMPLOYEES.  GENERALLY, PHYSICIANS, LAWYERS, DENTISTS, VETERINARIANS,
CONTRACTORS, SUBCONTRACTORS, PUBLIC STENOGRAPHERS, AUCTIONEERS, AND
OTHERS WHO FOLLOW AN INDEPENDENT TRADE, BUSINESS, OR PROFESSION, IN
WHICH THEY OFFER THEIR SERVICES TO THE PUBLIC, ARE INDEPENDENT
CONTRACTORS AND NOT EMPLOYEES."  26 C.F.R. SEC. 400.205.  SEE ALSO
TREASURY REGULATIONS 91, 26 C.F.R. SEC. 401.3. 

FN9  THE CITATION OF THESE CASES DOES NOT IMPLY APPROVAL OR
DISAPPROVAL OF THE RESULTS.  THE CASES DO SHOW THE CONSTRUCTION OF THE
REGULATION BY THE AGENCY.  UNITED STATES V. MUTUAL TRUCKING CO., 141
F.2D 655; JONES V. GOODSON, 121 F.2D 176; MAGRUDER V. YELLOW CAB CO.,
141 F.2D 324; TEXAS CO. V. HIGGINS, 118 F.2D 636; AMERICAN OIL CO. V.
FLY, 135 F.2D 491; GLENN V. STANDARD OIL CO., 148 F.2D 51. 

SEE ALSO NOTE 2. 

FN10  GREGORY V. HELVERING, 293 U.S. 465; GRIFFITHS V. COMMISSIONER,
308 U.S. 355; HIGGINS V. SMITH, 308 U.S. 473; HELVERING V. CLIFFORD,
309 U.S. 331. 

FN11  UNITED STATES V. SILK, 155 F.2D 356, 358-9:  "BUT EVEN WHILE
THEY WORK FOR APPELLEE THEY ARE NOT SUBJECT TO HIS CONTROL AS TO THE
METHOD OR MANNER IN WHICH THEY ARE TO DO THEIR WORK.  THE UNDISPUTED
EVIDENCE IS THAT THE ONLY SUPERVISION OR CONTROL EVER EXERCISED OR THAT
COULD BE EXERCISED OVER THE HAULERS WAS TO GIVE THEM THE SALES TICKET
IF THEY WERE WILLING TO TAKE IT, AND LET THEM DELIVER THE COAL.  THEY
WERE FREE TO CHOOSE ANY ROUTE IN GOING TO OR RETURNING.  THEY WERE NOT
REQUIRED EVEN TO TAKE THE COAL FOR DELIVERY. 

"WE THINK THAT THE RELATIONSHIP BETWEEN APPELLEE AND THE UNLOADERS IS
NOT MATERIALLY DIFFERENT FROM THAT BETWEEN HIM AND THE HAULERS.  IN
RESPONSE TO A QUESTION ON CROSS EXAMINATION, APPELLEE DID TESTIFY THAT
THE UNLOADERS DID WHAT HIS SUPERINTENDENT AT THE COAL YARD TOLD THEM TO
DO, BUT WHEN CONSIDERED IN THE LIGHT OF ALL HIS TESTIMONY, ALL THAT
THIS ANSWER MEANT WAS THAT THEY UNLOADED THE CAR ASSIGNED TO THEM INTO
THE DESIGNATED BIN.... 

"THE UNDISPUTED FACTS FAIL TO ESTABLISH SUCH REASONABLE MEASURE OF
DIRECTION AND CONTROL OVER THE METHOD AND MEANS OF PERFORMING THE
SERVICES PERFORMED BY THESE WORKERS AS IS NECESSARY TO ESTABLISH A
LEGAL RELATIONSHIP OF EMPLOYER AND EMPLOYEE BETWEEN APPELLEE AND THE
WORKERS IN QUESTION." 

GREYVAN LINES V. HARRISON, 156 F.2D 412, 414-16.  AFTER STATING THE
TRIAL COURT'S FINDING THAT THE TRUCKMEN WERE NOT EMPLOYEES, THE
APPELLATE COURT NOTED: 

"APPELLANT CONTENDS THAT IN DETERMINING THESE FACTS THE COURT FAILED
TO GIVE EFFECT TO IMPORTANT PROVISIONS OF THE CONTRACTS WHICH IT
ASSERTS CLEARLY SHOW THE RESERVATION OF THE RIGHT OF CONTROL OVER THE
TRUCKMEN AND THEIR HELPERS AS TO THE METHODS AND MEANS OF THEIR
OPERATIONS WHICH, IT IS AGREED, FURNISH THE TEST FOR DETERMINING THE
RELATIONSHIP HERE IN QUESTION...."    IT THEN DISCUSSED THE MANUAL AND
CONCLUDED: 

"WHILE IT IS TRUE THAT MANY PROVISIONS OF THE MANUAL, IF STRICTLY
ENFORCED, WOULD GO FAR TO ESTABLISH AN EMPLOYER-EMPLOYEE RELATIONSHIP
BETWEEN THE COMPANY AND ITS TRUCKMEN, WE AGREE WITH APPELLEE THAT THERE
WAS EVIDENCE TO JUSTIFY THE COURT'S DISREGARDING OF IT. IT WAS NOT
PREPARED UNTIL APRIL, 1940, ALTHOUGH THE TAX PERIOD INVOLVED WAS FROM
NOVEMBER, 1937, THROUGH MARCH, 1942, AND THERE WAS NO EVIDENCE TO SHOW
ANY CHANGE OR TIGHTENING OF CONTROLS AFTER ITS ADOPTION AND
DISTRIBUTION; ONE DRIVER TESTIFIED THAT HE WAS NEVER INSTRUCTED TO
FOLLOW THE RULES THEREIN PROVIDED; AN OFFICER OF THE COMPANY TESTIFIED
THAT IT HAD BEEN PREPARED BY A GROUP OF THREE MEN NO LONGER IN THEIR
EMPLOY, AND THAT IT HAD BEEN IMPRACTICAL AND WAS NOT ADHERED TO." 

AFTER A DISCUSSION OF THE HELPER PROBLEM, THIS STATEMENT APPEARS:
"...  THE COMPANY CANNOT BE HELD LIABLE FOR EMPLOYMENT TAXES ON THE
WAGES OF PERSONS OVER WHOM IT EXERTS NO CONTROL, AND OF WHOSE
EMPLOYMENT IT HAS NO KNOWLEDGE.  AND THIS ELEMENT OF CONTROL OF THE
TRUCKMEN OVER THEIR OWN HELPERS GOES FAR TO PREVENT THE EMPLOYER
EMPLOYEE RELATIONSHIP FROM ARISING BETWEEN THEM AND THE COMPANY.  WHILE
MANY FACTORS IN THIS CASE INDICATE SUCH CONTROL AS TO GIVE RISE TO THAT
RELATIONSHIP, WE THINK THE MOST VITAL ONE IS MISSING BECAUSE OF THE
COMPLETE CONTROL OF THE TRUCKMEN AS TO HOW MANY, IF ANY, AND WHAT
HELPERS THEY MAKE USE OF IN THEIR OPERATIONS...." 

FN12  CF. GRACE V. MAGRUDER, 148 F.2D 679. 

FN13  I.R.C., CHAP. 9, SUBCHAP.  A, SEC. 1426(B), AS AMENDED, 53
STAT. 1384: 

"THE TERM 'EMPLOYMENT' MEANS ANY SERVICE PERFORMED  ...  BY AN
EMPLOYEE FOR THE PERSON EMPLOYING HIM  ... EXCEPT - 

     .         .         .         .         . 

"(3)  CASUAL LABOR NOT IN THE COURSE OF THE EMPLOYER'S TRADE OR
BUSINESS; ..." 

FN14  SWIFT & CO. V. ALSTON, 48 GA. APP. 649, 173 S.E. 741; HOLMES V.
TENNESSEE COAL, I. & R. CO., 49 LA. ANN. 1465, 22 SO. 403; MUNCIE
FOUNDRY CO. V. THOMPSON, 70 IND. APP. 157, 123 N.E. 196; CHICAGO, R.I.
& P.R. CO. V. BENNETT, 36 OKLA. 358, 128 P. 705; MURRAY'S CASE, 130 ME.
181, 154 A. 352; DECATUR R. CO. V. INDUSTRIAL BOARD, 276 ILL. 472, 114
N.E. 915; BENJAMIN V. FERTILIZER CO., 169 MISS.  162, 152 SO. 839. 

FN15  WESTERN EXPRESS CO. V. SMELTZER, 88 F.2D 94; INDUSTRIAL
COMMISSION V. BONFILS, 78 COLO. 306, 241 P. 735; COPPES BROS. & ZOOK V.
PONTIUS, 76 IND. APP. 298, 131 N.E. 845; BURRUSS V. B.M.C. LOGGING CO.,
38 N.M. 254, 31 P.2D 263; BRADLEY V. REPUBLIC CREOSOTING CO., 281 MICH.
177, 274 N.W. 754; ROUSE V. TOWN OF BIRD ISLAND, 169 MINN. 367, 211
N.W. 327; INDUSTRIAL COMMISSION V. HAMMOND, 77 COLO. 414, 236 P. 1006;
KIRK V. LIME CO. & INSURANCE CO., 137 ME. 73, 15 A.2D 184; SHOWERS V.
LUND, 123 NEB. 56, 242 N.W. 258; BURT V. DAVIS-WOOD LUMBER CO., 157 LA.
111, 102 SO. 87; DUNN V. REEVES COAL YARDS CO., INC., 150 MINN. 282,
184 N.W. 1027; WATERS V. PIONEER FUEL CO., 52 MINN. 474, 55 N.W. 52;
WARNER V. HARDWOOD LUMBER CO., 231 MICH. 328, 204 N.W. 107; FROST V.
BLUE RIDGE TIMBER CORP., 158 TENN. 18, 11 S.W.2D 860; LEE V. MARK H.
BROWN LUMBER CO., 15 LA. APP. 294, 131 SO. 697. 

SEE PARTICULARLY SINGER MANUFACTURING CO. V. RAHN, 132 U.S. 518. 

FN16  COMPARE UNITED STATES V. MUTUAL TRUCKING CO., 141 F.2D 655;
GLENN V. STANDARD OIL CO., 148 F.2D 51. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY ARE OF
THE VIEW THAT THE APPLICABLE PRINCIPLES OF LAW, STATED BY THE COURT AND
WITH WHICH THEY AGREE, REQUIRE REVERSAL OF BOTH JUDGMENTS IN THEIR
ENTIRETY. 

MR. JUSTICE RUTLEDGE. 

I JOIN IN THE COURT'S OPINION AND IN THE RESULT INSOFAR AS THE
PRINCIPLES STATED ARE APPLIED TO THE UNLOADERS IN THE SILK CASE.  BUT I
THINK A DIFFERENT DISPOSITION SHOULD BE MADE IN APPLICATION OF THOSE
PRINCIPLES TO THE TRUCKERS IN THAT CASE AND IN THE GREYVAN CASE. 

SO FAR AS THE TRUCKERS ARE CONCERNED, BOTH ARE BORDERLINE CASES.  FN1
THAT WOULD BE TRUE, I THINK, EVEN IF THE SO-CALLED "COMMON LAW
CONTROL" TEST WERE CONCLUSIVE,  FN2  AS THE DISTRICT COURT AND THE
CIRCUIT COURT OF APPEALS IN EACH CASE SEEM TO HAVE REGARDED IT.  FN3
IT IS EVEN MORE TRUE UNDER THE BROADER AND MORE FACTUAL APPROACH THE
COURT HOLDS SHOULD BE APPLIED. 

I AGREE WITH THE COURT'S VIEWS IN ADOPTING THIS APPROACH AND THAT THE
BALANCE IN CLOSE CASES SHOULD BE CAST IN FAVOR OF RATHER THAN AGAINST
COVERAGE, IN ORDER TO FULFILL THE STATUTE'S BROAD AND BENEFICENT
OBJECTS.  A NARROW, CONSTRICTED CONSTRUCTION IN DOUBTFUL CASES ONLY
GOES, AS INDEED THE OPINION RECOGNIZES, TO DEFEAT THE ACT'S POLICY AND
PURPOSES PRO TANTO. 

BUT I DO NOT THINK IT NECESSARY OR PERHAPS IN HARMONY WITH SOUND
PRACTICE, CONSIDERING THE NATURE OF THIS COURT'S FUNCTIONS AND THOSE OF
THE DISTRICT COURTS, FOR US TO UNDERTAKE DRAWING THE FINAL CONCLUSION
GENERALLY IN THESE BORDERLINE CASES.  HAVING DECLARED THE APPLICABLE
PRINCIPLES OF LAW TO BE APPLIED, OUR FUNCTION IS SUFFICIENTLY
DISCHARGED BY SEEING TO IT THAT THEY ARE OBSERVED.  AND WHEN THIS HAS
BEEN DONE, DRAWING THE FINAL CONCLUSION, IN MATTERS SO LARGELY FACTUAL
AS THE END RESULT MUST BE IN CLOSE CASES, IS MORE PROPERLY THE BUSINESS
OF THE DISTRICT COURTS THAN OURS. 

HERE THE DISTRICT COURTS AND THE CIRCUIT COURTS OF APPEALS DETERMINED
THE CASES LARGELY IF NOT INDEED EXCLUSIVELY BY APPLYING THE SO-CALLED
"COMMON LAW CONTROL" TEST AS THE CRITERION.  THIS WAS CLEARLY WRONG, IN
VIEW OF THE COURT'S PRESENT RULING.  BUT FOR ITS ACTION IN DRAWING THE
ULTIMATE AND LARGELY FACTUAL CONCLUSION ON THAT BASIS, THE ERROR WOULD
REQUIRE REMANDING THE CAUSES TO THE DISTRICT  COURTS IN ORDER FOR THEM
TO EXERCISE THAT FUNCTION IN THE LIGHT OF THE PRESENT DECISION. 

I WOULD FOLLOW THAT COURSE, SO FAR AS THE TRUCKERS ARE CONCERNED. 

FN1  THE OPINION OF THE CIRCUIT COURT OF APPEALS IN THE GREYVAN CASE
STATED, AFTER REFERRING TO UNITED STATES V. MUTUAL TRUCKING CO., 141
F.2D 655:  "IT IS TRUE THAT THE FACTS THERE DO NOT PRESENT AS CLOSE A
QUESTIONS AS IN THE CASE AT BAR."  AND SEE NOTE 3. 

FN2  IT IS NOT AT ALL CERTAIN THAT EITHER SILK OR GREYVAN LINES WOULD
NOT BE HELD LIABLE IN TORT, UNDER APPLICATION OF THE COMMON LAW TEST,
FOR INJURIES NEGLIGENTLY INFLICTED UPON PERSONS OR PROPERTY OF OTHERS
BY THEIR TRUCKERS, RESPECTIVELY, IN THE COURSE OF OPERATING THE TRUCKS
IN CONNECTION WITH THEIR BUSINESSES.  INDEED THIS RESULT WOULD SEEM TO
BE CLEARLY INDICATED, IN THE CASE OF GREYVAN PARTICULARLY, IN VIEW OF
THE FACT THAT THE TRUCKS BORE ITS NAME, IN ADDITION TO OTHER FACTORS
INCLUDING A LARGE DEGREE OF CONTROL EXERCISED OVER THE TRUCKING
OPERATIONS.  FOR FEDERAL CASES IN POINT SEE SILENT AUTOMATIC SALES
CORP. V. STAYTON, 45 F.2D 471(APPLYING MISSOURI LAW); FALSTAFF BREWING
CORP. V. THOMPSON, 101 F.2D 301(APPLYING NEBRASKA LAW); YOUNG V. WILKY
CARRIER CORP., 54 F.SUPP.  912, AFF'D, 150 F.2D 764(APPLYING
PENNSYLVANIA LAW).  AND SEE FOR A GENERAL COLLECTION OF STATE CASES, 9
BLASHFIELD, CYCLOPEDIA OF AUTOMOBILE LAW AND PRACTICE (1941) SEC.
6056. 

CERTAINLY THE QUESTION OF COVERAGE UNDER THE STATUTE, AS AN EMPLOYEE,
SHOULD NOT BE DETERMINED MORE NARROWLY THAN THAT OF EMPLOYEE STATUS FOR
PURPOSES OF IMPOSING VICARIOUS LIABILITY IN TORT UPON AN EMPLOYER,
WHETHER BY APPLICATION OF THE CONTROL TEST EXCLUSIVELY OR OF THE
COURT'S BROADER RULING. 

FN3  IN THE SILK CASE FORMAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
BY THE DISTRICT COURT DO NOT APPEAR IN THE RECORD.  BUT A "STATEMENT BY
THE COURT" RECITES DETAILS OF THE ARRANGEMENTS WITH THE TRUCKERS AND
UNLOADERS IN THE FOCUS OF WHETHER SILK EXERCISED CONTROL OVER THEM AND
CONCLUDES HE DID NOT; HENCE, THERE WAS NO EMPLOYER-EMPLOYEE RELATION. 
THE OPINION OF THE CIRCUIT COURT OF APPEALS, THOUGH RECOGNIZING THE
NECESSITY FOR LIBERAL CONSTRUCTION OF THE ACT, TREATS THE FACTS FOUND
IN THE SAME FOCUS OF CONTROL.  THE COURT WAS INFLUENCED BY THE
REGULATIONS PROMULGATED UNDER THE ACT (REG. 90, ART. 205) AND ALSO BY
THE BUREAU OF INTERNAL REVENUE (REG. 91, ART. 3).  THE OPINION
CONCLUDES:  "THE UNDISPUTED FACTS FAIL TO ESTABLISH SUCH REASONABLE
MEASURE OF DIRECTION AND CONTROL OVER THE METHOD AND MEANS OF
PERFORMING THE SERVICES  ...  AS IS NECESSARY" TO CREATE THE EMPLOYER
EMPLOYEE RELATION.  155 F.2D 356, 359. 

IN THE GREYVAN CASE FORMAL FINDINGS AND CONCLUSIONS WERE FILED.  THE
CIRCUIT COURT OF APPEALS, ACCEPTING THE FINDINGS, CONCLUDED THEY DID
NOT SHOW "CHANGE OR TIGHTENING OF CONTROLS" AFTER THE COMPANY'S
ADOPTION OF A MANUAL IN 1940, ALTHOUGH ITS PROVISIONS "IF STRICTLY
ENFORCED, WOULD GO FAR TO ESTABLISH AN EMPLOYER-EMPLOYEE RELATIONSHIP
...."  156 F. D 412, 415.  HOWEVER, IT FOUND ANOTHER FACTOR CONCLUSIVE:
"WHILE MANY FACTORS IN THIS CASE INDICATE SUCH CONTROL AS TO GIVE RISE
TO THAT RELATIONSHIP, WE THINK THE MOST VITAL ONE IS MISSING BECAUSE OF
THE COMPLETE CONTROL OF THE TRUCKMEN AS TO HOW MANY, IF ANY, AND WHAT
HELPERS THEY MAKE USE OF IN THEIR OPERATIONS."  156 F.2D AT 416. 
APPARENTLY NOT CONTROL OF THE METHOD OF PERFORMING THE WORK IN GENERAL
BUT ABSENCE OF EXPRESSLY RESERVED RIGHT OF CONTROL IN A SINGLE FEATURE
BECAME THE CRITERION USED. 
..END :
















RUTHERFORD FOOD CORP. V. MCCOMB, 331 U.S. 722 


NO. 562.  ARGUED APRIL 9, 10, 1947.  - DECIDED JUNE 16, 1947.  - 156
F.2D 513, CONCLUSION AFFIRMED AND DIRECTION OF JUDGMENT MODIFIED. 


1.  BONERS OF MEAT WORKED IN A SLAUGHTERHOUSE EXCLUSIVELY FOR THE
OPERATOR THEREOF AND THEIR WORK WAS BUT ONE STEP IN A CONTINUOUS
PROCESS THE OTHER STEPS OF WHICH WERE PERFORMED BY PERSONS WHO WERE
ADMITTEDLY EMPLOYEES OF THE OPERATOR.  HELD:  IN THE CIRCUMSTANCES OF
THIS CASE, THE BONERS WERE EMPLOYEES OF THE OPERATOR OF THE
SLAUGHTERHOUSE WITHIN THE MEANING OF THE FAIR LABOR STANDARDS ACT, EVEN
THOUGH THEY WORKED UNDER A CONTRACT, OWNED THEIR OWN TOOLS, AND WERE
PAID COLLECTIVELY A CERTAIN AMOUNT PER HUNDRED-WEIGHT OF BONED BEEF,
WHICH PAY THEY DIVIDED AMONG THEMSELVES.  PP. 724-726, 729-730. 

2.  DECISIONS DEFINING THE COVERAGE OF THE EMPLOYER-EMPLOYEE
RELATIONSHIP UNDER THE NATIONAL LABOR RELATIONS ACT AND THE SOCIAL
SECURITY ACT ARE PERSUASIVE IN THE CONSIDERATION OF A SIMILAR COVERAGE
UNDER THE FAIR LABOR STANDARDS ACT.  SEE LABOR BOARD V. HEARST
PUBLICATIONS, 322 U.S. 111; UNITED STATES V. SILK, ANTE, P. 704.  P.
723. 

3.  WHERE THE WORK DONE, IN ITS ESSENCE, FOLLOWS THE USUAL PATH OF AN
EMPLOYEE, PUTTING AN "INDEPENDENT CONTRACTOR" LABEL ON THE WORKER DOES
NOT DEPRIVE HIM OF THE PROTECTION OF THE FAIR LABOR STANDARDS ACT.  P.
729. 

4.  DETERMINATION OF THE EMPLOYER-EMPLOYEE RELATIONSHIP WITHIN THE
CONTEMPLATION OF THE FAIR LABOR STANDARDS ACT DOES NOT DEPEND ON
ISOLATED FACTORS BUT RATHER UPON THE CIRCUMSTANCES OF THE WHOLE
ACTIVITY.  P. 730. 

RUTHERFORD FOOD CORP. ET AL. V. MCCOMB, WAGE AND HOUR ADMINISTRATOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

THE DISTRICT COURT REFUSED TO ENJOIN ALLEGED VIOLATIONS OF THE FAIR
LABOR STANDARDS ACT.  THE CIRCUIT COURT OF APPEALS REVERSED.  156 F.2D
513.  THIS COURT GRANTED CERTIORARI.  329 U.S. 704.  CONCLUSION
AFFIRMED AND DIRECTION OF JUDGMENT MODIFIED, P. 731. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF
LABOR BROUGHT THIS ACTION TO ENJOIN THE RUTHERFORD FOOD CORPORATION AND
THE KAISER PACKING COMPANY FROM FURTHER VIOLATING THE FAIR LABOR
STANDARDS ACT.  FN1  THE ADMINISTRATOR ALLEGED THAT THE DEFENDANTS HAD
REPEATEDLY FAILED TO KEEP PROPER RECORDS AND TO PAY CERTAIN OF ITS
EMPLOYEES OVERTIME AS REQUIRED BY SEC. 7 OF THE ACT.  FN2  THE DISTRICT
COURT REFUSED TO GRANT THE INJUNCTION.  THE CIRCUIT COURT OF APPEALS
REVERSED ON APPEAL, AND DIRECTED THE ENTRY OF THE JUDGMENT
SUBSTANTIALLY AS PRAYED FOR.  WALLING V. RUTHERFORD FOOD CORPORATION,
156 F.2D 513.  WE BROUGHT THE CASE HERE BECAUSE OF THE IMPORTANCE OF
THE ISSUES PRESENTED BY THE PETITION FOR CERTIORARI TO THE
ADMINISTRATION OF THE ACT. 

THE FAIR LABOR STANDARDS ACT OF 1938, ENACTED JUNE 25, 1938, IS A
PART OF THE SOCIAL LEGISLATION OF THE 1930'S OF THE SAME GENERAL
CHARACTER AS THE NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935, 49 STAT.
449, AND THE SOCIAL SECURITY ACT OF AUGUST 14, 1935, 49 STAT. 620. 
DECISIONS THAT DEFINE THE COVERAGE OF THE EMPLOYER-EMPLOYEE
RELATIONSHIP UNDER THE LABOR AND SOCIAL SECURITY ACTS ARE PERSUASIVE IN
THE CONSIDERATION OF A SIMILAR COVERAGE UNDER THE FAIR LABOR STANDARDS
ACT.  SEE LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111; UNITED
STATES V. SILK, ANTE, P. 704, DECIDED TODAY. 

THE PETITIONERS ARE CORPORATIONS OF MISSOURI AUTHORIZED TO DO
BUSINESS IN KANSAS.  THE SLAUGHTERHOUSE OF THE KAISER PACKING COMPANY,
THE PLACE OF THE ALLEGED VIOLATIONS WITH WHICH WE ARE CONCERNED, AND
THE PRINCIPAL PLACE OF BUSINESS OF THAT COMPANY, IS IN KANSAS CITY,
KANSAS, FROM WHICH IT SHIPS MEAT IN INTERSTATE COMMERCE.  SINCE 1942
MOST OF ITS PRODUCT HAS BEEN BONED BEEF.  THE PETITIONER, RUTHERFORD
FOOD CORPORATION, HAS ITS PRINCIPAL PLACE OF BUSINESS AND ITS PLANT FOR
PROCESSING MEAT PRODUCTS IN KANSAS CITY, MISSOURI.  IN 1943, RUTHERFORD
BOUGHT 51% OF THE STOCK OF KAISER IN ORDER TO ASSURE ITSELF OF A
CONSTANT SUPPLY OF BONED BEEF FOR CONTRACTS IT HAD WITH THE U.S. ARMY. 
KAISER HAD BEEN OPERATING AND CONTINUED TO OPERATE AT A LOSS, AND
RUTHERFORD ADVANCED MORE THAN $50,000 TO KAISER BETWEEN MARCH, WHEN
RUTHERFORD BOUGHT THE KAISER STOCK, AND JULY, 1943.  TO ASSURE ITSELF
OF A CONTINUED SUPPLY OF MEAT, RUTHERFORD LEASED KAISER'S FACILITIES
AND TOOK OVER OPERATION OF THE SLAUGHTERHOUSE IN JULY.  IN MAY, 1944,
THE LEASE WAS TERMINATED AND RUTHERFORD'S STOCK INTEREST IN KAISER
SOLD, SO THAT KAISER MIGHT QUALIFY FOR SUBSIDIES GRANTED BY THE DEFENSE
SUPPLIES CORPORATION TO UNAFFILIATED NONPROCESSING SLAUGHTERERS UNDER
ITS REGULATION NO. 3.  FN3 

PRIOR TO 1942 KAISER HAD ONE HOURLY PAID EMPLOYEE WHO ACTED AS A
COMBINED BUTCHER, BEEF BONER AND ORDER FILLER.  DURING 1942, IN ORDER
TO BE ABLE TO FURNISH BEEF BONED TO ARMY SPECIFICATIONS TO THE ARMY
UNDER CONTRACT, KAISER ENTERED INTO A WRITTEN CONTRACT WITH ONE REED,
AN EXPERIENCED BONER, WHICH PROVIDED THAT REED SHOULD ASSEMBLE A GROUP
OF SKILLED BONERS TO DO THE BONING AT THE SLAUGHTERHOUSE.  THE TERMS OF
THE CONTRACT WERE THAT REED SHOULD BE PAID FOR THE WORK OF BONING AN
AMOUNT PER HUNDRED-WEIGHT OF BONED BEEF, THAT HE WOULD HAVE COMPLETE
CONTROL OVER THE OTHER BONERS, WHO WOULD BE HIS EMPLOYEES, THAT KAISER
WOULD FURNISH A ROOM IN ITS PLANT FOR THE WORK, KNOWN AS THE BONING
VESTIBULE, INTO WHICH THE CARCASSES OF CATTLE SLAUGHTERED BY KAISER
WOULD BE MOVED ON OVERHEAD RAILS BY KAISER EMPLOYEES, THAT KAISER WOULD
ALSO FURNISH BARRELS FOR THE BONED MEAT WHICH WOULD BE WASHED AND MOVED
OUT OF THE VESTIBULE BY KAISER'S EMPLOYEES.  REED ABANDONED THE WORK IN
FEBRUARY, 1943, AND THE WORK WAS TAKEN OVER UNDER AN ORAL CONTRACT BY
ONE OF THE BONERS WHO HAD WORKED WITH HIM.  THIS BONER, SCHINDEL, ALSO
ABANDONED THE WORK IN MAY, 1944, AND AN ORAL CONTRACT WAS THEN MADE BY
THE COMPANY WITH HOOPER AND DEERE, WHO HAD WORKED WITH SCHINDEL.  AFTER
A FEW MONTHS DEERE LEFT, AT WHICH TIME HOOPER ENTERED INTO A WRITTEN
CONTRACT SUBSTANTIALLY LIKE THE ONE BETWEEN KAISER AND REED, SAVE THAT
IT PROVIDED FOR RENT TO BE PAID BY HOOPER FOR THE BONING ROOM, ALTHOUGH
AS A MATTER OF FACT NO RENT WAS EVER PAID.  THE DISTRICT COURT FOUND
THAT SINCE THE BONING WORK HAD STARTED IN 1942, THE MONEY PAID BY
KAISER HAD BEEN SHARED EQUALLY AMONG ALL THE BONERS, EXCEPT FOR A SHORT
TIME AFTER HOOPER TOOK OVER THE WORK WHEN HE PAID SOME OF THE BONERS BY
THE HOUR.  IT WAS STIPULATED FURTHER THAT THE BONERS OWNED THEIR OWN
TOOLS, ALTHOUGH THESE CONSISTED MERELY OF A HOOK TO HOLD THE MEAT, A
KNIFE TO CUT IT, A SHARPENER FOR THE KNIFE, AND A LEATHER BELT
(APRON).  ALTHOUGH THE C.I.O. UNION WHICH WAS THE REPRESENTATIVE OF THE
WORKERS OF THE COMPANY INSISTED THAT THE BONERS BE MEMBERS, AND
ALTHOUGH THE WRITTEN CONTRACTS PROVIDED THAT THEY SHOULD JOIN, IT WAS
STIPULATED THAT THE UNION DUES OF THE BONERS WERE NOT CHECKED OFF AND
THAT THE BONERS WERE NOT SUBJECT TO THE AUTHORITY OF THE UNION STEWARD
AT THE PLANT. 

THE SLAUGHTERHOUSE OPERATIONS, OF WHICH THE BONING IS A PART, ARE
CARRIED ON IN A SERIES OF INTERDEPENDENT STEPS.  THE CATTLE ARE
SLAUGHTERED, SKINNED AND DRESSED IN THE KILLING ROOM, AND THE CARCASSES
ARE MOVED THENCE ON OVERHEAD RAILS INTO AN OVERNIGHT COOLER BY
EMPLOYEES OF KAISER.  THE NEXT DAY THEY ARE MOVED INTO ANOTHER COOLER
AND THEN INTO THE BONING VESTIBULE, ON THE SAME OVERHEAD RAIL.  THEY
MOVE AROUND THE BONING ROOM ON THE RAIL, EACH BONER CUTTING OFF A
TO A TRIMMER, AN EMPLOYEE OF KAISER, WHO TRIMS WASTE MATTER FROM THE
BONED MEAT.  WASTE IS PUT INTO OTHER BARRELS.  THE BARRELS ARE MOVED
FROM THE BONING ROOM BY EMPLOYEES OF KAISER INTO ANOTHER ROOM, CALLED
THE DOCK, WHERE THE MEAT IS WEIGHED AND PUT ON TRUCKS.  KAISER HAS
NEVER ATTEMPTED TO CONTROL THE HOURS OF THE BONERS, BUT THEY MUST "KEEP
THE WORK CURRENT AND THE HOURS THEY WORK DEPEND IN LARGE MEASURE UPON
THE NUMBER OF CATTLE SLAUGHTERED."  156 F.2D 513, 515.  IT IS
UNDISPUTED THAT THE PRESIDENT AND MANAGER OF KAISER GOES THROUGH THE
BONING VESTIBULE MANY TIMES A DAY AND "IS AFTER THE BONERS FREQUENTLY
ABOUT THEIR FAILURE TO CUT ALL OF THE MEAT OFF THE BONES." 

THE ADMINISTRATOR THOUGHT THESE FACTS BROUGHT THE BONERS WITHIN THE
CLASSIFICATION OF EMPLOYEES, AS THAT TERM IS USED IN THE ACT.  BUT THE
DISTRICT COURT THOUGHT THAT THEY WERE INDEPENDENT CONTRACTORS, AND
DENIED THE INJUNCTION SOUGHT BY THE ADMINISTRATOR.  THE CIRCUIT COURT
OF APPEALS, HOWEVER, SAID:  "THE OPERATIONS AT THE SLAUGHTERHOUSE
CONSTITUTE AN INTEGRATED ECONOMIC UNIT DEVOTED PRIMARILY TO THE
PRODUCTION OF BONELESS BEEF.  PRACTICALLY ALL OF THE WORK ENTERING INTO
THE UNIT IS DONE AT ONE PLACE AND UNDER ONE ROOF.  ...  THE BONERS WORK
ALONGSIDE ADMITTED EMPLOYEES OF THE PLANT OPERATOR AT THEIR TASKS.  THE
TASK OF EACH IS PERFORMED IN ITS NATURAL ORDER AS A CONTRIBUTION TO THE
ACCOMPLISHMENT OF A COMMON OBJECTIVE."  IN ITS VIEW THE TEST FOR
DETERMINING WHO WAS AN EMPLOYEE UNDER THE ACT WAS NOT THE COMMON LAW
TEST OF CONTROL, "AS THE ACT CONCERNS ITSELF WITH THE CORRECTION OF
ECONOMIC EVILS THROUGH REMEDIES WHICH WERE UNKNOWN AT COMMON LAW  ...
"  IT CONCLUDED THAT THE "UNDERLYING ECONOMIC REALITIES  ...  LEAD TO
THE CONCLUSION THAT THE BONERS WERE AND ARE EMPLOYEES OF KAISER  ...  "
156 F.2D 513, 516-17. 

THE FAIR LABOR STANDARDS ACT WAS PASSED BY CONGRESS TO LESSEN, SO FAR
AS SEEMED THEN PRACTICABLE, THE DISTRIBUTION IN COMMERCE OF GOODS
PRODUCED UNDER SUBNORMAL LABOR CONDITIONS.  AN EFFORT TO ELIMINATE LOW
WAGES AND LONG HOURS WAS THE METHOD CHOSEN TO FREE COMMERCE FROM THE
INTERFERENCES ARISING FROM PRODUCTION OF GOODS UNDER CONDITIONS THAT
WERE DETRIMENTAL TO THE HEALTH AND WELL-BEING OF WORKERS.  IT WAS
SOUGHT TO ACCOMPLISH THIS PURPOSE BY THE MINIMUM PAY AND MAXIMUM HOUR
PROVISIONS AND THE REQUIREMENT THAT RECORDS OF EMPLOYEES' SERVICES BE
KEPT BY THE EMPLOYER.  FN4  TO MAKE THE METHOD EFFECTIVE, THE ACT
CONTAINS A SECTION GRANTING TO THE DISTRICT COURTS OF THE UNITED STATES
JURISDICTION TO ENJOIN CERTAIN VIOLATIONS OF THE ACT HERE INVOLVED,
RELATING TO THE KEEPING OF RECORDS OF EMPLOYMENT AND THE PAYING OF
OVERTIME.  FN5  WHETHER OR NOT THE ACTS CHARGED IN THIS COMPLAINT
VIOLATE THE ACT DEPENDS, SO FAR AS THE MEAT BONERS ARE CONCERNED, UPON
A DETERMINATION AS TO WHETHER EITHER OR BOTH RESPONDENTS ARE EMPLOYERS
OF THE BONERS.  AS OUR CONCLUSION REQUIRES FURTHER ACTION IN THE TRIAL
COURT TO FRAME THE INJUNCTION, WE SHALL TREAT ONLY THE QUESTION OF THE
RELATIONSHIP OF THE BONERS TO THE ALLEGED EMPLOYERS.  WE SHALL NOT IN
OUR CONSIDERATION UNDERTAKE TO REACH ANY CONCLUSION AS TO THE
APPROPRIATE FORM OF AN INJUNCTION.  WE PASS ONLY UPON THE QUESTION
WHETHER THE BONERS WERE EMPLOYEES OF THE OPERATOR OF THE KANSAS PLANT
UNDER THE FAIR LABOR STANDARDS ACT. 

AS IN THE NATIONAL LABOR RELATIONS ACT AND THE SOCIAL SECURITY ACT,
THERE IS IN THE FAIR LABOR STANDARDS ACT NO DEFINITION THAT SOLVES
PROBLEMS AS TO THE LIMITS OF THE EMPLOYER-EMPLOYEE RELATIONSHIP UNDER
THE ACT.  PROVISIONS WHICH HAVE SOME BEARING APPEAR IN THE MARGIN.  FN6
THE DEFINITION OF "EMPLOY" IS BROAD.  IT EVIDENTLY DERIVES FROM THE
CHILD LABOR STATUTES AND IT SHOULD BE NOTED THAT THIS DEFINITION
APPLIES TO THE CHILD LABOR PROVISIONS OF THIS ACT, SEC. 12.  FN7  WE
HAVE DECIDED THAT IT IS NOT SO BROAD AS TO INCLUDE THOSE "WHO, WITHOUT
ANY EXPRESS OR IMPLIED COMPENSATION AGREEMENT, MIGHT WORK FOR THEIR OWN
ADVANTAGE ON THE PREMISES OF ANOTHER."  WALLING V. PORTLAND TERMINAL
CO., 330 U.S. 148, 152, DECIDED FEBRUARY 17, 1947.  IN THE SAME
OPINION, HOWEVER, WE POINTED OUT THAT "THIS ACT CONTAINS ITS OWN
DEFINITIONS, COMPREHENSIVE ENOUGH TO REQUIRE ITS APPLICATION TO MANY
PERSONS AND WORKING RELATIONSHIPS WHICH, PRIOR TO THIS ACT, WERE NOT
DEEMED TO FALL WITHIN AN EMPLOYER-EMPLOYEE CATEGORY."  330 U.S. 148,
150.  WE HAVE SAID THAT THE ACT INCLUDED THOSE WHO ARE COMPENSATED ON A
PIECE RATE BASIS.  UNITED STATES V. ROSENWASSER, 323 U.S. 360.  WE HAVE
ACCEPTED A STIPULATION THAT STATION "REDCAPS" WERE RAILROAD EMPLOYEES. 
WILLIAMS V. JACKSONVILLE TERMINAL CO., 315 U.S. 386, 391.  THERE MAY BE
INDEPENDENT CONTRACTORS WHO TAKE PART IN PRODUCTION OR DISTRIBUTION WHO
WOULD ALONE BE RESPONSIBLE FOR THE WAGES AND HOURS OF THEIR OWN
EMPLOYEES.  SEE UNITED STATES V. SILK, SUPRA; COMPARE ROLAND ELECTRICAL
CO. V. WALLING, 326 U.S. 657; MARTINO V. MICHIGAN WINDOW CLEANING CO.,
327 U.S. 173.  WE CONCLUDE, HOWEVER, THAT THESE MEAT BONERS ARE NOT
INDEPENDENT CONTRACTORS.  WE AGREE WITH THE CIRCUIT COURT OF APPEALS,
QUOTED ABOVE, IN ITS CHARACTERIZATION OF THEIR WORK AS A PART OF THE
INTEGRATED UNIT OF PRODUCTION UNDER SUCH CIRCUMSTANCES THAT THE WORKERS
PERFORMING THE TASK WERE EMPLOYEES OF THE ESTABLISHMENT.  WHERE THE
WORK DONE, IN ITS ESSENCE, FOLLOWS THE USUAL PATH OF AN EMPLOYEE,
PUTTING ON AN "INDEPENDENT CONTRACTOR" LABEL DOES NOT TAKE THE WORKER
FROM THE PROTECTION OF THE ACT.  FN8 

THE DISTRICT COURT WAS OF THE VIEW THAT: 

"THE RIGHT TO CONTRACT IS NOT ONLY AN INHERENT RIGHT BUT A
CONSTITUTIONAL RIGHT, AND INDEPENDENT CONTRACTS, AS A METHOD OF
QUANTITY PRODUCTION OF BONED BEEF, HAVE NOT BEEN UNCOMMON IN THE
PACKING BUSINESS, GENERALLY.  ...  THE PLAN UNDER WHICH BONERS SHARE
EQUALLY IN THE BONING MONEY IS COMMONLY EMPLOYED IN KANSAS CITY AND
ELSEWHERE, AND MOST OF THE BONERS WHO HAVE WORKED IN THE KAISER PLANT
HAVE WORKED AT VARIOUS TIMES AND IN VARIOUS PLANTS UNDER INDEPENDENT
CONTRACTORS.  THERE IS NOTHING INEQUITABLE IN THE SHARING METHOD UNDER
WHICH COMPENSATION IS DIVIDED EQUALLY AMONG THE GROUP.  IT GIVES EACH
MAN AN INTEREST IN THE AMOUNT OF WORK BEING DONE BY THE OTHER MEMBERS
OF THE GROUP.  IT ALSO GIVES NO ADVANTAGE TO THE MAN WHO IS BONING THE
FLESHIER PARTS OF THE CARCASS.  UNDER THIS PLAN BEGINNERS AND CASUAL
BONERS CAN BE EQUITABLY TAKEN CARE OF BY PAYMENT ON AN HOURLY BASIS OUT
OF THE BONING MONEY." 

WE THINK, HOWEVER, THAT THE DETERMINATION OF THE RELATIONSHIP DOES
NOT DEPEND ON SUCH ISOLATED FACTORS BUT RATHER UPON THE CIRCUMSTANCES
OF THE WHOLE ACTIVITY.  VIEWED IN THIS WAY, THE WORKERS DID A SPECIALTY
JOB ON THE PRODUCTION LINE.  THE RESPONSIBILITY UNDER THE BONING
CONTRACTS WITHOUT MATERIAL CHANGES PASSED FROM ONE BONER TO ANOTHER. 
THE PREMISES AND EQUIPMENT OF KAISER WERE USED FOR THE WORK.  THE GROUP
HAD NO BUSINESS ORGANIZATION THAT COULD OR DID SHIFT AS A UNIT FROM ONE
SLAUGHTERHOUSE TO ANOTHER.  THE MANAGING OFFICIAL OF THE PLANT KEPT
CLOSE TOUCH ON THE OPERATION.  WHILE PROFITS TO THE BONERS DEPENDED
UPON THE EFFICIENCY OF THEIR WORK, IT WAS MORE LIKE PIECEWORK THAN AN
ENTERPRISE THAT ACTUALLY DEPENDED FOR SUCCESS UPON THE INITIATIVE,
JUDGMENT OR FORESIGHT OF THE TYPICAL INDEPENDENT CONTRACTOR.  UPON THE
WHOLE, WE MUST CONCLUDE THAT THESE MEAT BONERS WERE EMPLOYEES OF THE
SLAUGHTERING PLANT UNDER THE FAIR LABOR STANDARDS ACT.    WE THEREFORE
AFFIRM THE CONCLUSION TO THAT EFFECT OF THE CIRCUIT COURT OF APPEALS
AND MODIFY THE DIRECTION OF THE JUDGMENT OF THAT COURT "FOR THE ENTRY
OF A JUDGMENT SUBSTANTIALLY AS PRAYED," SO AS TO LEAVE THE DISTRICT
COURT FREE TO FRAME ITS DECREE IN ACCORDANCE WITH THIS DECISION.  IT IS
SO ORDERED. 

FN1 52 STAT. 1060. 

FN2  29 U.S.C. SEC. 207.    FN3  8 F.R. 10826; 8 F.R. 14641; 9 F.R.
1820. 

FN4  52 STAT. 1060, SECS. 2, 6, 7, 11(C).  UNITED STATES V. DARBY,
312 U.S. 100, 125; OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, 577
78. 

FN5  52 STAT. 1060, SECS. 17, 15, 7(A), 11(C). 

FN6  52 STAT. 1060, SEC. 3: 

"AS USED IN THIS ACT - 

     .         .         .         .         . 

"(D)  'EMPLOYER' INCLUDES ANY PERSON ACTING DIRECTLY OR INDIRECTLY IN
THE INTEREST OF AN EMPLOYER IN RELATION TO AN EMPLOYEE  ... 

"(E)  'EMPLOYEE' INCLUDES ANY INDIVIDUAL EMPLOYED BY AN EMPLOYER. 

     .         .     .         .         . 

"(G)  'EMPLOY' INCLUDES TO SUFFER OR PERMIT TO WORK." 

FN7  NOTE 11 IN THE BRIEF FOR THE UNITED STATES SUMMARIZES THE
RELEVANT DATA: 

"AT THE TIME OF THE ENACTMENT OF THE FAIR LABOR STANDARDS ACT, THE
PHRASE 'EMPLOYED, PERMITTED OR SUFFERED TO WORK' WAS CONTAINED IN THE
CHILD LABOR STATUTES OF THIRTY-TWO STATES AND THE DISTRICT OF
COLUMBIA.  THE SAME PHRASEOLOGY APPEARED IN THE UNIFORM CHILD LABOR
LAWS RECOMMENDED IN 1911 AND IN 1930 BY THE NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS (CHILD LABOR BULLETIN, VOL. I, NO.
2, AUGUST 1912; PROCEEDINGS OF THE NATIONAL CONFERENCE, 1930), IN THE
STANDARD CHILD LABOR LAW RECOMMENDED IN THE CHILD LABOR LEGISLATION
HANDBOOK COMPILED BY JOSEPHINE C. GOLDMARK (SEE E.G., ISSUE OF 1904, P.
11), AND IN THE STANDARDS RECOMMENDED FOR CHILD LABOR LEGISLATION BY
THE INTERNATIONAL ASSOCIATION OF GOVERNMENTAL LABOR OFFICIALS.  THE
PHRASE 'EMPLOYED OR PERMITTED TO WORK' WAS FOUND IN SEVENTEEN STATE
STATUTES AS WELL AS IN THE FEDERAL STATUTES HELD UNCONSTITUTIONAL IN
HAMMER V. DAGENHART, 247 U.S. 251, AND CHILD LABOR TAX CASE, 259 U.S.
20.  THE STATUTES ARE CITED IN THE APPENDIX TO THIS BRIEF, INFRA, PP.
58-60." 

FN8  SEE WALLING V. AMERICAN NEEDLECRAFTS, 139 F.2D 60; UNITED STATES
V. VOGUE, INC., 145 F.2D 609; WALLING V. TWYEFFORT, INC., 158 F.2D
944. 
..END :
















MEXICAN LIGHT CO. V. TEX. MEX. R. CO., 331 U.S. 731 


NO. 404.  ARGUED FEBRUARY 6, 1947.  - DECIDED JUNE 16, 1947.  - 145 TEX.
50, 193 S.W.2D 964, AFFIRMED. 


GOODS DESTINED FOR EXPORT BY RAIL TO MEXICO WERE SHIPPED FROM THE
POINT OF ORIGIN OVER A SERIES OF CONNECTING CARRIERS UNDER A BILL OF
LADING ISSUED BY THE INITIAL CARRIER AND COVERING THE SHIPMENT TO THE
POINT OF EXPORT ON THE MEXICAN BORDER, THE TRANSPORTATION CHARGES BEING
PREPAID TO THAT POINT.  THE LAST CONNECTING CARRIER IN THE UNITED
STATES ISSUED A NEW BILL OF LADING WHICH PURPORTED TO COVER THE
SHIPMENT TO ITS ULTIMATE DESTINATION IN MEXICO, BUT RECEIVED NO PAYMENT
FOR TRANSPORTING THE GOODS OTHER THAN ITS SHARE OF THAT PAID TO THE
INITIAL CARRIER UNDER THE ORIGINAL BILL OF LADING.  HELD:  UNDER THE
CARMACK AMENDMENT, THE SECOND BILL OF LADING WAS VOID AND THE LAST
CONNECTING CARRIER IN THE UNITED STATES IS NOT LIABLE FOR INJURIES TO
THE GOODS INCURRED ON A MEXICAN RAILROAD BETWEEN THE BORDER AND THEIR
ULTIMATE DESTINATION IN MEXICO.  PP. 733-735. 

MEXICAN LIGHT & POWER CO., LTD. V. TEXAS MEXICAN RAILWAY CO. 

CERTIORARI TO THE SUPREME COURT OF TEXAS. 

A TEXAS STATE COURT DENIED A JUDGMENT AGAINST AN AMERICAN CONNECTING
RAILROAD FOR INJURIES SUSTAINED ON A MEXICAN RAILROAD TO GOODS EXPORTED
FROM THE UNITED STATES.  THE TEXAS COURT OF CIVIL APPEALS REVERSED. 
190 S.W.2D 838.  IT WAS REVERSED BY THE SUPREME COURT OF TEXAS.  145
TEX. 50, 193 S.W.2D 964.  THIS COURT GRANTED CERTIORARI.  329 U.S.
697.  AFFIRMED, P. 735. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION TO RECOVER DAMAGES FOR INJURY TO GOODS IN THE
COURSE OF AN EXPORT SHIPMENT BY RAIL.  THE WESTING-HOUSE ELECTRIC AND
MANUFACTURING COMPANY DELIVERED TO THE PENNSYLVANIA RAILROAD COMPANY IN
SHARON, PENNSYLVANIA, GOODS ULTIMATELY DESTINED FOR THE MEXICAN LIGHT
AND POWER COMPANY.  ACCORDING TO THE BILL OF LADING ISSUED BY THE
PENNSYLVANIA RAILROAD THE GOODS WERE CONSIGNED

     THE MEXICAN LIGHT & POWER CO. LTD.,        C/O FAUSTO

           TREVINO, CUSTOMS AGENT,                  (NATIONAL

           RAILWAYS OF MEXICO). 

THE DESTINATION WAS LAREDO, TEXAS, WITH THE FURTHER NOTATION 

"FOR EXPORT TO: EL ORO, ESTADO DE MEXICO VIA ACAMBARO VIA LAREDO." 

THE TRANSPORTATION CHARGES WERE PREPAID AT THE EXPORT RATE, LESS THAN
THE DOMESTIC, AND THEY COVERED SHIPMENT NOT MERELY INTO LAREDO BUT UP
TO THE INTERNATIONAL BOUNDARY. 

THE TEXAS-MEXICAN RAILWAY WAS THE LAST OF THE SERIES OF CONNECTING
CARRIERS OVER WHICH THE MACHINERY WAS ROUTED BY THE PENNSYLVANIA.  THE
FORMER, HAVING RECEIVED THE SHIPMENT AT ALICE, TEXAS, CONTINUED THE
CARRIAGE TO ITS YARDS AT LAREDO.  AT LAREDO, THERE WAS ISSUED TO FAUSTO
TREVINO, THE AGENT, WHAT FORMALLY APPEARS TO BE A BILL OF LADING
CONSIGNING THE SHIPMENT TO PETITIONER AT EL ORO.  THE RECORD IS SILENT
AS TO THE CIRCUMSTANCES THAT BROUGHT THIS DOCUMENT INTO EXISTENCE, BUT
IT IS ADMITTED THAT THE RESPONDENT RECEIVED NO PAYMENT FOR TRANSPORTING
THE GOODS OTHER THAN ITS SHARE IN THE EXPORT RATE PREPAID TO THE
PENNSYLVANIA UNDER THE SHARON BILL OF LADING.  TREVINO DID USE THE
SECOND BILL OF LADING FOR CLEARING THE SHIPMENT WITH THE MEXICAN
CUSTOMS, BUT THERE IS NO SHOWING THAT THE FIRST BILL OF LADING WOULD
NOT HAVE SERVED AS DOCUMENTATION FOR THIS PURPOSE.  THE RESPONDENT
RAILROAD THEN MOVED THE GOODS, STILL IN THE ORIGINAL CARS, FROM ITS
YARDS TO THE INTERNATIONAL BOUNDARY.  THERE, THE SHIPMENT PASSED TO THE
NATIONAL RAILWAYS OF MEXICO AND IT WAS ON ITS LINES, IN MEXICO, THAT
THE MACHINERY WAS INJURED. 

PETITIONER BROUGHT THIS SUIT IN ONE OF THE DISTRICT COURTS OF TEXAS. 
JUDGMENT WENT FOR THE RAILROAD.  THE TEXAS COURT OF CIVIL APPEALS
REVERSED, 190 S.W.2D 838, BUT WAS IN TURN REVERSED BY THE SUPREME COURT
OF TEXAS.  145 TEX. 50, 193 S.W.2D 964.  WE GRANTED CERTIORARI, 329
U.S. 697, BECAUSE IMPORTANT ISSUES AFFECTING THE CARRIER'S LIABILITY
UNDER THE INTERSTATE COMMERCE ACT WERE PRESSED UPON US. 

ON FULL CONSIDERATION OF THE CASE IT FALLS WITHIN A VERY NARROW
COMPASS.  THE GOODS CONSIGNED TO LAREDO MOVED ON THE BILL OF LADING
ISSUED AT SHARON WITH THE INDICATED CONNECTIONS, INCLUDING THE TEXAS
MEXICAN.  BY VIRTUE OF THE CARMACK AMENDMENT, 34 STAT. 584, AMENDED, 38
STAT. 1196, THAT BILL OF LADING DETERMINES THE RIGHTS OF THE
CONSIGNEE.  WHILE EACH CONNECTING CARRIER IS, OF COURSE, LIABLE FOR
DAMAGE OCCURRING ON ITS LINE, ONLY THE INITIAL CARRIER IS LIABLE FOR
DAMAGE ON ANY OF THE CONNECTIONS.  UNLESS, THEREFORE, THE TEXAS-MEXICAN
RAILWAY WAS AN INITIAL CARRIER WITH REFERENCE TO THE MEXICAN RAILROAD
IT CANNOT BE RESPONSIBLE FOR INJURIES ON THAT ROAD.  AND IT DID NOT
BECOME AN INITIAL CARRIER MERELY BY FORCE OF WHAT PURPORTED TO BE A
BILL OF LADING ISSUED AT LAREDO UNLESS THE SO-CALLED SECOND BILL OF
LADING REPRESENTS THE INITIATION OF A NEW SHIPMENT ON THE TEXAS
MEXICAN. 

WE AGREE WITH THE TEXAS SUPREME COURT THAT NOTHING HAPPENED AT LAREDO
TO DISPLACE THE DUTY WHICH WAS CREATED AT SHARON FOR THE CARRIAGE OF
THE GOODS BY THE TEXAS-MEXICAN TO THE INTERNATIONAL BOUNDARY, OR TO
MODIFY THE TERMS OF ITS UNDERTAKING WHEN, AT ALICE, IT RECEIVED THE
GOODS UNDER THE SHARON BILL OF LADING. 

WHAT WAS SAID OF THE SHIPMENT OF CATTLE IN MISSOURI, KANSAS & TEXAS
R. CO. V. WARD, 244 U.S. 383, 387, IS PRECISELY APPLICABLE TO THE
SHIPMENT OF MACHINERY IN THIS CASE: 

"THE TERMS OF THE ORIGINAL BILL OF LADING WERE NOT ALTERED BY THE
SECOND ISSUED BY THE CONNECTING CARRIER.  AS APPELLANTS WERE ALREADY
BOUND TO TRANSPORT THE CATTLE AT THE RATE AND UPON THE TERMS NAMED IN
THE ORIGINAL BILL OF LADING, THE ACCEPTANCE BY THE SHIPPER OF THE
SECOND BILL WAS WITHOUT CONSIDERATION AND WAS VOID." 

NO MATTER WHAT THE CONVENIENCE WHICH A CONSIGNEE MAY DERIVE FROM A
BILL OF LADING ISSUED BY A CONNECTING CARRIER ON A THROUGH SHIPMENT,
UNLESS THE CONNECTING CARRIER HAS RECEIVED A CONSIDERATION FOR THE BILL
OF LADING IN ADDITION TO THAT WHICH FLOWED UNDER THE BILL OF LADING
ISSUED BY THE INITIATING CARRIER, THE CARMACK AMENDMENT MAKES SUCH
SECOND BILL OF LADING VOID.  IT CAN NEITHER ENLARGE THE LIABILITY OF
THE CONNECTING CARRIER NOR CONTRACT THAT OF THE INITIATING CARRIER. 
THAT IS WHAT WAS MEANT WHEN THE WARD CASE SAID THAT THE PURPOSE OF THE
CARMACK AMENDMENT WAS "TO CREATE IN THE INITIAL CARRIER UNITY OF
RESPONSIBILITY FOR THE TRANSPORTATION TO DESTINATION."  MISSOURI,
KANSAS & TEXAS R. CO. V. WARD, SUPRA, AT 386.  THIS IS AN EVEN STRONGER
CASE FOR THE APPLICATION OF THIS PRINCIPLE.  FOR IN THE WARD CASE THE
COURT FOUND THE SECOND BILL OF LADING VOID FOR LACK OF CONSIDERATION
ALTHOUGH IT WAS "ALLEGED TO HAVE BEEN ISSUED IN CONSIDERATION OF A
SPECIAL REDUCED RATE THERETOFORE DULY FILED WITH THE INTERSTATE
COMMERCE COMMISSION" BECAUSE THERE WAS NOTHING TO INDICATE THAT THAT
SPECIAL RATE "AFFECTED THE THROUGH RATE ALREADY AGREED UPON IN THE
ORIGINAL BILL OF LADING."  244 U.S. AT 385-86. 

PROPERLY FINDING THAT THE SO-CALLED BILL OF LADING DID NOT EVIDENCE
ANY NEW AND INDEPENDENT UNDERTAKING, WHEN JUDGED BY THE RIGID
REQUIREMENTS BY WHICH BILLS OF LADING ARE VALID UNDER THE CARMACK
AMENDMENT, THE TEXAS SUPREME COURT WAS RIGHT IN HOLDING THAT THE
SHIPMENT OVER THE TEXAS-MEXICAN LEGALLY MOVED ONLY UNDER THE ORIGINAL
BILL OF LADING, THAT THE PENNSYLVANIA WAS NEVER DISPLACED AS THE
INITIAL CARRIER, AND THAT THEREFORE THE TEXAS-MEXICAN WAS NOT LIABLE
FOR DAMAGE THAT OCCURRED ON THE MEXICAN RAILROAD.  JUDGMENT AFFIRMED. 

MR. JUSTICE REED, WITH WHOM MR. CHIEF JUSTICE VINSON JOINS,
DISSENTING. 

WE ARE OF THE OPINION THAT THE RESPONDENT, THE TEXAS MEXICAN RAILWAY
COMPANY, IS THE INITIAL CARRIER UNDER THE BILL OF LADING ISSUED BY IT
AT LAREDO FOR CARRIAGE OF THE ARTICLES TO EL ORO, MEXICO.  THE BILL OF
LADING ISSUED BY THE PENNSYLVANIA RAILROAD WAS FOR CARRIAGE FROM
SHARON, PENNSYLVANIA, TO LAREDO, TEXAS.  ACCEPTING THE INTERPRETATION
OF THE COURT, THAT THIS PENNSYLVANIA BILL REQUIRED THE DELIVERY OF THE
SHIPMENT BY THE RESPONDENT AT THE INTERNATIONAL BOUNDARY IN LAREDO,
THERE REMAINS THE NECESSITY OF CAUSING THE SHIPMENT TO CROSS THE
BOUNDARY LINE AND PROCEED UPON ITS JOURNEY INTO MEXICO.  AS THE COURT
CONCEDES, THE BILL OF LADING, SUED UPON HERE, WAS USED TO CLEAR "THE
SHIPMENT WITH THE MEXICAN CUSTOMS."  IT IS ALSO PLAIN THAT IT WAS THIS
LATTER BILL THAT CAUSED THE SHIPMENT TO CROSS THE LINE.  WITHOUT IT,
THE RESPONDENT COULD NOT HAVE MADE DELIVERY TO THE MEXICAN RAILWAY
SYSTEM.  THE PENNSYLVANIA BILL OF LADING CALLED FOR DELIVERY TO THE
CONSIGNEE'S AGENT IN LAREDO, FAUSTO TREVINO.  THE CONSIDERATION TO
RESPONDENT FOR ITS ISSUE WOULD BE A SIMILAR SERVICE FOR NORTHBOUND
SHIPMENTS FROM THE MEXICAN RAILWAYS OR PROMOTION OF RESPONDENT'S EXPORT
BUSINESS. 

THE WARD CASE, 244 U.S. 383, IS NOT AN AUTHORITY FOR THE COURT'S
HOLDING.  THERE THE SUIT WAS BROUGHT ON A THROUGH BILL FROM A TEXAS
POINT TO AN OKLAHOMA POINT.  THE DEFENSE WAS THAT A NEW CONTRACT HAD
BEEN MADE WITH A CONNECTING CARRIER.  IT WAS SAID, P. 387: 

"THE BILL OF LADING REQUIRED TO BE ISSUED BY THE INITIAL CARRIER UPON
AN INTERSTATE SHIPMENT GOVERNS THE ENTIRE TRANSPORTATION.  THE TERMS OF
THE ORIGINAL BILL OF LADING WERE NOT ALTERED BY THE SECOND ISSUED BY
THE CONNECTING CARRIER.  AS APPELLANTS WERE ALREADY BOUND TO TRANSPORT
THE CATTLE AT THE RATE AND UPON THE TERMS NAMED IN THE ORIGINAL BILL OF
LADING, THE ACCEPTANCE BY THE SHIPPER OF THE SECOND BILL WAS WITHOUT
CONSIDERATION AND WAS VOID." 

THE FACTS OF THIS CASE SEEM TO US ENTIRELY DIFFERENT AND TO REQUIRE
THAT THE RESPONDENT RAILWAY ACCEPT RESPONSIBILITY AS THE INITIAL
CARRIER. 
..END :








BAZLEY V. COMMISSIONER, 331 U.S. 737 


ARGUED JANUARY 10, 1947.  - DECIDED JUNE 16, 1947.  - 155 F.2D 237 AND
155 F.2D 246, AFFIRMED. 


1.  PURSUANT TO A PURPORTED PLAN OF "REORGANIZATION" AND
"RECAPITALIZATION" OF A FAMILY CORPORATION, ALL BUT ONE SHARE OF WHICH
WAS OWNED BY A TAXPAYER AND HIS WIFE AND WHICH HAD AN EARNED SURPLUS OF
$855,783, EACH OLD SHARE OF STOCK HAVING A PAR VALUE OF $100 WAS
EXCHANGED FOR FIVE NEW SHARES OF NO PAR VALUE, BUT A STATED VALUE OF
$60, AND NEW DEBENTURE BONDS HAVING A TOTAL FACE VALUE OF $400,000
PAYABLE IN TEN YEARS BUT CALLABLE AT ANY TIME.  HELD:  THE TRANSACTION
WAS NOT A TAX-FREE "REORGANIZATION" WITHIN THE MEANING OF SECS.
112(B)(3) AND 112(G)(1)(E) OF THE INTERNAL REVENUE CODE, AND THE
TAXPAYER IS LIABLE FOR INCOME TAXES ON THE FULL VALUE OF THE
DEBENTURES.  PP. 742-743. 

2.  THE SAME CONCLUSION REACHED AS TO ANOTHER SIMILAR TRANSACTION
VARYING IN SOME DETAILS, INCLUDING THE FACT THAT THERE WAS LEFT
UNDISTURBED ON THE BOOKS OF THE CORPORATION AN EARNED SURPLUS ACCOUNT
EQUAL TO THE VALUE OF THE DEBENTURES DISTRIBUTED IN PARTIAL EXCHANGE
FOR THE OLD STOCK.  PP. 743-744. 

3.  IT WAS NOT THE PURPOSE OF THE REORGANIZATION PROVISIONS OF SEC.
112(B) AND (G) OF THE INTERNAL REVENUE CODE TO EXEMPT FROM PAYMENT OF A
TAX WHAT AS A PRACTICAL MATTER IS A REALIZED GAIN.  P. 740. 

4.  SINCE A "RECAPITALIZATION" WITHIN THE MEANING OF SEC.
112(G)(1)(E) IS ONE FORM OF "REORGANIZATION," NOTHING CAN BE A
RECAPITALIZATION FOR THIS PURPOSE UNLESS IT PARTAKES OF THOSE
CHARACTERISTICS OF A REORGANIZATION WHICH UNDERLIE THE PURPOSE OF
CONGRESS IN POSTPONING THE TAX LIABILITY.  P. 741. 

5. IN THE CASE OF A CORPORATION WHICH HAS UNDISTRIBUTED EARNINGS, THE
CREATION OF NEW CORPORATE OBLIGATIONS WHICH ARE TRANSFERRED TO
STOCKHOLDERS IN RELATION TO THEIR FORMER HOLDINGS, SO AS TO PRODUCE,
FOR ALL PRACTICAL PURPOSES, THE SAME RESULT AS A DISTRIBUTION OF CASH
EARNINGS OF EQUIVALENT VALUE, CANNOT OBTAIN TAX IMMUNITY BECAUSE CAST
IN THE FORM OF A RECAPITALIZATION-REORGANIZATION.  P. 742. 

BAZLEY V. COMMISSIONER OF INTERNAL REVENUE. 

NO. 287.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT.* 

*TOGETHER WITH NO. 209, ADAMS V. COMMISSIONER OF INTERNAL REVENUE,
ALSO ON CERTIORARI TO THE SAME COURT, ARGUED JANUARY 9, 1947. 

NO. 287.  THE TAX COURT SUSTAINED A DETERMINATION OF THE COMMISSIONER
OF INTERNAL REVENUE THAT A TAXPAYER WAS LIABLE FOR INCOME TAX ON THE
FULL VALUE OF DEBENTURES RECEIVED UNDER A PURPORTED "REORGANIZATION" OF
A FAMILY CORPORATION.  4 T.C. 897.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  155 F.2D 237.  THIS COURT GRANTED CERTIORARI.  329 U.S.
701.  AFFIRMED, P. 744. 

NO. 209.  THE TAX COURT SUSTAINED A DETERMINATION OF THE COMMISSIONER
OF INTERNAL REVENUE THAT A TAXPAYER WAS LIABLE FOR INCOME TAX ON
CERTAIN DEBENTURE BONDS RECEIVED UNDER A PURPORTED "REORGANIZATION" OF
A CORPORATION OF WHICH HE OWNED ALL BUT A FEW SHARES.  5 T.C. 351.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  155 F.2D 246.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 695.  AFFIRMED, P. 744. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE PROPER CONSTRUCTION OF PROVISIONS OF THE INTERNAL REVENUE CODE
RELATING TO CORPORATE REORGANIZATIONS IS INVOLVED IN BOTH THESE CASES. 
THEIR IMPORTANCE TO THE TREASURY AS WELL AS TO CORPORATE ENTERPRISE LED
US TO GRANT CERTIORARI, 329 U.S. 695, 329 U.S. 701.  WHILE THERE ARE
DIFFERENCES IN DETAIL TO WHICH WE SHALL REFER, THE TWO CASES MAY BE
DISPOSED OF IN ONE OPINION. 

IN THE BAZLEY CASE, NO. 287, THE COMMISSIONER OF INTERNAL REVENUE
ASSESSED AN INCOME TAX DEFICIENCY AGAINST THE TAXPAYER FOR THE YEAR
1939.  ITS VALIDITY DEPENDS ON THE LEGAL SIGNIFICANCE OF THE
RECAPITALIZATION IN THAT YEAR OF A FAMILY CORPORATION IN WHICH THE
TAXPAYER AND HIS WIFE OWNED ALL BUT ONE OF THE COMPANY'S ONE THOUSAND
SHARES.  THESE HAD A PAR VALUE OF $100.  UNDER THE PLAN OF
REORGANIZATION THE TAXPAYER, HIS WIFE, AND THE HOLDER OF THE ADDITIONAL
SHARE WERE TO TURN IN THEIR OLD SHARES AND RECEIVE IN EXCHANGE FOR EACH
OLD SHARE FIVE NEW SHARES OF NO PAR VALUE, BUT OF A STATED VALUE OF
$60, AND NEW DEBENTURE BONDS, HAVING A TOTAL FACE VALUE OF $400,000,
PAYABLE IN TEN YEARS BUT CALLABLE AT ANY TIME.  ACCORDINGLY, THE
TAXPAYER RECEIVED 3,990 SHARES OF THE NEW STOCK FOR THE 798 SHARES OF
HIS OLD HOLDING AND DEBENTURES IN THE AMOUNT OF $319,200.  AT THE TIME
OF THESE TRANSACTIONS THE EARNED SURPLUS OF THE CORPORATION WAS
$855,783.82. 

THE COMMISSIONER CHARGED TO THE TAXPAYER AS INCOME THE FULL VALUE OF
THE DEBENTURES.  THE TAX COURT AFFIRMED THE COMMISSIONER'S
DETERMINATION, AGAINST THE TAXPAYER'S CONTENTION THAT AS A
"RECAPITALIZATION" THE TRANSACTION WAS A TAX-FREE "REORGANIZATION" AND
THAT THE DEBENTURES WERE "SECURITIES IN A CORPORATION A PARTY TO A
REORGANIZATION," "EXCHANGED SOLELY FOR STOCK OR SECURITIES IN SUCH
CORPORATION" "IN PURSUANCE OF THE PLAN OF REORGANIZATION," AND AS SUCH
NO GAIN IS RECOGNIZED FOR INCOME TAX PURPOSES.  INTERNAL REVENUE CODE,
SECS. 112(B)(1)(E) AND 112(B)(3).  THE TAX COURT FOUND THAT THE
RECAPITALIZATION HAD "NO LEGITIMATE CORPORATE BUSINESS PURPOSE" AND WAS
THEREFORE NOT A "REORGANIZATION" WITHIN THE STATUTE.  THE DISTRIBUTION
OF DEBENTURES, IT CONCLUDED, WAS A DISGUISED DIVIDEND, TAXABLE AS
EARNED INCOME UNDER SECS. 22(A) AND 115(A) AND (G).  4 T.C. 897.  THE
CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT, SITTING EN BANC,
AFFIRMED, TWO JUDGES DISSENTING.  155 F.2D 237. 

UNLESS A TRANSACTION IS A REORGANIZATION CONTEMPLATED BY SEC. 112(G),
ANY EXCHANGE OF "STOCK OF SECURITIES" IN CONNECTION WITH SUCH
TRANSACTION, CANNOT BE "IN PURSUANCE OF THE PLAN OF REORGANIZATION"
UNDER SEC. 112(B)(3).  WHILE SEC. 112(G) INFORMS US THAT
"REORGANIZATION" MEANS, AMONG OTHER THINGS, "A RECAPITALIZATION," IT
DOES NOT INFORM US WHAT "RECAPITALIZATION" MEANS.  "RECAPITALIZATION"
IN CONNECTION WITH THE INCOME TAX HAS BEEN PART OF THE REVENUE LAWS
SINCE 1921.  42 STAT. 227, 230, SEC. 202(C)(2).  CONGRESS HAS NEVER
DEFINED IT AND THE TREASURY REGULATIONS SHED ONLY LIMITED LIGHT. 
TREAS. REG. 103, SEC. 19.112(G).  ONE THING IS CERTAIN.  CONGRESS DID
NOT INCORPORATE SOME TECHNICAL CONCEPT, WHETHER THAT OF ACCOUNTANTS OR
OF OTHER SPECIALISTS, INTO SEC. 112(G), ASSUMING THAT THERE IS
AGREEMENT AMONG SPECIALISTS AS TO THE MEANING OF RECAPITALIZATION.  AND
SO, RECAPITALIZATION AS USED IN SEC. 112(G) MUST DRAW ITS MEANING FROM
ITS FUNCTION IN THAT SECTION.  IT IS ONE OF THE FORMS OF REORGANIZATION
WHICH OBTAINS THE PRIVILEGES AFFORDED BY SEC. 112(G).  THEREFORE,
"RECAPITALIZATION" MUST BE CONSTRUED WITH REFERENCE TO THE
PRESUPPOSITIONS AND PURPOSE OF SEC. 112(G).  IT WAS NOT THE PURPOSE OF
THE REORGANIZATION PROVISION TO EXEMPT FROM PAYMENT OF A TAX WHAT AS A
PRACTICAL MATTER IS REALIZED GAIN.  NORMALLY, A DISTRIBUTION BY A
CORPORATION, WHATEVER FORM IT TAKES, IS A DEFINITE AND RATHER
UNAMBIGUOUS EVENT.  IT FURNISHES THE PROPER OCCASION FOR THE
DETERMINATION AND TAXATION OF GAIN.  BUT THERE ARE CIRCUMSTANCES WHERE
A FORMAL DISTRIBUTION, DIRECTLY OR THROUGH EXCHANGE OF SECURITIES,
REPRESENTS MERELY A NEW FORM OF THE PREVIOUS PARTICIPATION IN AN
ENTERPRISE, INVOLVING NO CHANGE OF SUBSTANCE IN THE RIGHTS AND
RELATIONS OF THE INTERESTED PARTIES ONE TO ANOTHER OR TO THE CORPORATE
ASSETS.  AS TO THESE, CONGRESS HAS SAID THAT THEY ARE NOT TO BE DEEMED
SIGNIFICANT OCCASIONS FOR DETERMINING TAXABLE GAIN. 

THESE CONSIDERATIONS UNDERLIE SEC. 112(G) AND THEY SHOULD COMINATE
THE SCOPE TO BE GIVEN TO THE VARIOUS SECTIONS, ALL OF WHICH CONVERGE
TOWARD A COMMON PURPOSE.  APPLICATION OF THE LANGUAGE OF SUCH A REVENUE
PROVISION IS NOT AN EXERCISE IN FRAMING ABSTRACT DEFINITIONS.  IN A
SERIES OF CASES THIS COURT HAS WITHHELD THE BENEFITS OF THE
REORGANIZATION PROVISION IN SITUATIONS WHICH MIGHT HAVE SATISFIED
PROVISIONS OF THE SECTION TREATED AS INERT LANGUAGE, BECAUSE THEY WERE
NOT REORGANIZATIONS OF THE KIND WITH WHICH SEC. 112, IN ITS PURPOSE AND
PARTICULARS, CONCERNS ITSELF.  SEE PINELLAS ICE & COLD STORAGE CO. V.
COMMISSIONER, 287 U.S. 462; GREGORY V. HELVERING, 293 U.S. 465; LETULLE
V. SCOFIELD, 308 U.S. 415. 

CONGRESS HAS NOT ATTEMPTED A DEFINITION OF WHAT IS RECAPITALIZATION
AND WE SHALL FOLLOW ITS EXAMPLE.  THE SEARCH FOR RELEVANT MEANING IS
OFTEN SATISFIED NOT BY A FUTILE ATTEMPT AT ABSTRACT DEFINITION BUT BY
PRICKING A LINE THROUGH CONCRETE APPLICATIONS.  MEANING FREQUENTLY IS
BUILT UP BY ASSURED RECOGNITION OF WHAT DOES NOT COME WITHIN A CONCEPT
THE CONTENT OF WHICH IS IN CONTROVERSY.  SINCE A RECAPITALIZATION
WITHIN THE SCOPE OF SEC. 112 IS AN ASPECT OF REORGANIZATION, NOTHING
CAN BE A RECAPITALIZATION FOR THIS PURPOSE UNLESS IT PARTAKES OF THOSE
CHARACTERISTICS OF A REORGANIZATION WHICH UNDERLIE THE PURPOSE OF
CONGRESS IN POSTPONING THE TAX LIABILITY. 

NO DOUBT THERE WAS A RECAPITALIZATION OF THE BAZLEY CORPORATION IN
THE SENSE THAT THE SYMBOLS THAT REPRESENTED ITS CAPITAL WERE CHANGED,
SO THAT THE FISCAL BASIS OF ITS OPERATIONS WOULD APPEAR VERY
DIFFERENTLY ON ITS BOOKS.  BUT THE FORM OF A TRANSACTION AS REFLECTED
BY CORRECT CORPORATE ACCOUNTING OPENS QUESTIONS AS TO THE PROPER
APPLICATION OF A TAXING STATUTE; IT DOES NOT CLOSE THEM.  CORPORATE
ACCOUNTING MAY REPRESENT THAT CORRESPONDENCE BETWEEN CHANGE IN THE FORM
OF CAPITAL STRUCTURE AND ESSENTIAL IDENTITY IN FACT WHICH IS OF THE
ESSENCE OF A TRANSACTION RELIEVED FROM TAXATION AS A REORGANIZATION. 
WHAT IS CONTROLLING IS THAT A NEW ARRANGEMENT INTRINSICALLY PARTAKE OF
THE ELEMENTS OF REORGANIZATION WHICH UNDERLIE THE CONGRESSIONAL
EXEMPTION AND NOT MERELY GIVE THE APPEARANCE OF IT TO ACCOMPLISH A
DISTRIBUTION OF EARNINGS.  IN THE CASE OF A CORPORATION WHICH HAS
UNDISTRIBUTED EARNINGS, THE CREATION OF NEW CORPORATE OBLIGATIONS WHICH
ARE TRANSFERRED TO STOCKHOLDERS IN RELATION TO THEIR FORMER HOLDINGS,
SO AS TO PRODUCE, FOR ALL PRACTICAL PURPOSES, THE SAME RESULT AS A
DISTRIBUTION OF CASH EARNINGS OF EQUIVALENT VALUE, CANNOT OBTAIN TAX
IMMUNITY BECAUSE CAST IN THE FORM OF A RECAPITALIZATION
REORGANIZATION.  THE GOVERNING LEGAL RULE CAN HARDLY BE STATED MORE
NARROWLY.  TO ATTEMPT TO DO SO WOULD ONLY CHALLENGE ASTUTENESS IN
EVADING IT.  AND SO IT IS HARD TO ESCAPE THE CONCLUSION THAT WHETHER IN
A PARTICULAR CASE A PAPER RECAPITALIZATION IS NO MORE THAN AN
ADMISSIBLE ATTEMPT TO AVOID THE CONSEQUENCES OF AN OUTRIGHT
DISTRIBUTION OF EARNINGS TURNS ON DETAILS OF CORPORATE AFFAIRS,
JUDGMENT ON WHICH MUST BE LEFT TO THE TAX COURT.  SEE DOBSON V.
COMMISSIONER, 320 U.S. 489. 

WHAT HAVE WE HERE?  NO DOUBT, IF THE BAZLEY CORPORATION HAD ISSUED
THE DEBENTURES TO BAZLEY AND HIS WIFE WITHOUT ANY RECAPITALIZATION, IT
WOULD HAVE MADE A TAXABLE DISTRIBUTION.  INSTEAD, THESE DEBENTURES WERE
ISSUED AS PART OF A FAMILY ARRANGEMENT, THE ONLY ADDITIONAL INGREDIENT
BEING AN UNRELATED MODIFICATION OF THE CAPITAL ACCOUNT.  THE DEBENTURES
WERE FOUND TO BE WORTH AT LEAST THEIR PRINCIPAL AMOUNT, AND THEY WERE
VIRTUALLY CASH BECAUSE THEY WERE CALLABLE AT THE WILL OF THE
CORPORATION WHICH IN THIS CASE WAS THE WILL OF THE TAXPAYER.  ONE DOES
NOT HAVE TO PURSUE THE MOTIVES BEHIND ACTIONS, EVEN IN THE MORE
ASCERTAINABLE FORMS OF PURPOSE, TO FIND, AS DID THE TAX COURT, THAT THE
WHOLE ARRANGEMENT TOOK THIS FORM INSTEAD OF AN OUTRIGHT DISTRIBUTION OF
CASH OR DEBENTURES, BECAUSE THE LATTER WOULD UNDOUBTEDLY HAVE BEEN
TAXABLE INCOME WHEREAS WHAT WAS DONE COULD, WITH A SHOW OF REASON,
CLAIM THE SHELTER OF THE IMMUNITY OF A RECAPITALIZATION
REORGANIZATION. 

THE COMMISSIONER, THE TAX COURT AND THE CIRCUIT COURT OF APPEALS
AGREE THAT NOTHING WAS ACCOMPLISHED THAT WOULD NOT HAVE BEEN
ACCOMPLISHED BY AN OUTRIGHT DEBENTURE DIVIDEND.  AND SINCE WE FIND NO
MISCONCEPTION OF LAW ON THE PART OF THE TAX COURT AND THE CIRCUIT COURT
OF APPEALS, WHATEVER MAY HAVE BEEN THEIR CHOICE OF PHRASING, THEIR
APPLICATION OF THE LAW TO THE FACTS OF THIS CASE MUST STAND.  A
"REORGANIZATION" WHICH IS MERELY A VEHICLE, HOWEVER ELABORATE OR
ELEGANT, FOR CONVEYING EARNINGS FROM ACCUMULATIONS TO THE STOCKHOLDERS
IS NOT A REORGANIZATION UNDER SEC. 112.  THIS DISPOSES OF THE CASE AS A
MATTER OF LAW, SINCE THE FACTS AS FOUND BY THE TAX COURT BRING THEM
WITHIN IT.  AND EVEN IF THIS TRANSACTION WERE DEEMED A REORGANIZATION,
THE FACTS WOULD EQUALLY SUSTAIN THE IMPOSITION OF THE TAX ON THE
DEBENTURES UNDER SEC. 112(C)(1) AND (2).  COMMISSIONER V. ESTATE OF
BEDFORD, 325 U.S. 283. 

IN THE ADAMS CASE, NO. 209, THE TAXPAYER OWNED ALL BUT A FEW OF THE
5914 SHARES OF STOCK OUTSTANDING OUT OF AN AUTHORIZED 6000, PAR VALUE
$100.  BY A PLAN OF REORGANIZATION, THE AUTHORIZED CAPITAL WAS REDUCED
BY HALF, TO $295,700, DIVIDED INTO 5914 SHARES OF NO PAR VALUE BUT
HAVING A STATED VALUE OF $50 PER SHARE.  THE 5914 OLD SHARES WERE
CANCELLED AND THE CORPORATION ISSUED IN EXCHANGE THEREFOR 5914 SHARES
OF THE NEW NO-PAR COMMON STOCK AND 6 PER CENT 20 YEAR DEBENTURE BONDS
IN THE PRINCIPAL AMOUNT OF $295,700.  THE EXCHANGE WAS MADE ON THE
BASIS OF ONE NEW SHARE OF STOCK AND ONE $50 BOND FOR EACH OLD SHARE. 
THE OLD CAPITAL ACCOUNT WAS DEBITED IN THE SUM OF $591,400, A NEW NO
PAR CAPITAL ACCOUNT WAS CREDITED WITH $295,700, AND THE BALANCE OF
$295,700 WAS CREDITED TO A "DEBENTURE PAYABLE" ACCOUNT.  THE
CORPORATION AT THIS TIME HAD ACCUMULATED EARNINGS AVAILABLE FOR
DISTRIBUTION IN A SUM NOT LESS THAN $164,514.82, AND THIS ACCOUNT WAS
LEFT UNCHANGED.  AT THE TIME OF THE EXCHANGE, THE DEBENTURES HAD A
VALUE NOT LESS THAN $164,208.82. 

THE COMMISSIONER DETERMINED AN INCOME TAX DEFICIENCY BY TREATING THE
DEBENTURE BONDS AS A DISTRIBUTION OF THE CORPORATION'S ACCUMULATED
EARNINGS.  THE TAX COURT SUSTAINED THE COMMISSIONER'S DETERMINATION, 5
T.C. 351, AND THE CIRCUIT COURT OF APPEALS AFFIRMED.  155 F.2D 246. 
THE CASE IS GOVERNED BY OUR TREATMENT OF THE BAZLEY CASE.  THE FINDING
BY THE TAX COURT THAT THE REORGANIZATION HAD NO PURPOSE OTHER THAN TO
ACHIEVE THE DISTRIBUTION OF THE EARNINGS, IS UNAFFECTED BY THE
BOOKKEEPING DETAIL OF LEAVING THE SURPLUS ACCOUNT UNAFFECTED.  SEE SEC.
115(B), AND COMMISSIONER V. WHEELER, 324 U.S. 542,546. 

OTHER CLAIMS RAISED HAVE BEEN CONSIDERED BUT THEIR REJECTION DOES NOT
CALL FOR DISCUSSION.  JUDGMENTS AFFIRMED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE BURTON DISSENT IN BOTH CASES FOR
THE REASONS STATED IN THE JOINT DISSENT OF JUDGES MARIS AND GOODRICH IN
THE COURT BELOW.  BAZLEY V. COMMISSIONER, 155 F.2D 237, 244. 
..END :
























UNITED STATES V. DICKINSON, 331 U.S. 745 


ARGUED DECEMBER 13, 1946.  - DECIDED JUNE 16, 1947.  - 152 F.2D 865,
AFFIRMED. 


1.  WITHOUT CONDEMNING THE LAND, THE GOVERNMENT DAMMED A RIVER AND
RAISED THE WATER LEVEL BY SUCCESSIVE STAGES UNTIL IT FLOODED PART OF
RESPONDENTS' LAND.  MORE THAN 6 YEARS AFTER THE DAM BEGAN TO IMPOUND
WATER, BUT LESS THAN 6 YEARS AFTER THE WATER REACHED ITS ULTIMATE
LEVEL, RESPONDENTS SUED FOR COMPENSATION UNDER THE TUCKER ACT, JUDICIAL
CODE SEC. 24(20), 28 U.S.C. SEC. 41(20).  HELD:  THEIR CLAIMS ARE NOT
BARRED BY THE SIX-YEAR LIMITATION.  PP. 747-750. 

2.  WHEN THE GOVERNMENT CHOOSES NOT TO CONDEMN LAND BUT TO BRING
ABOUT A TAKING BY A CONTINUING PROCESS OF PHYSICAL EVENTS, THE OWNER IS
NOT REQUIRED TO RESORT EITHER TO PIECEMEAL OR TO PREMATURE LITIGATION
TO ASCERTAIN THE JUST COMPENSATION FOR WHAT REALLY IS "TAKEN."  P.
749. 

3.  WHEN THE GOVERNMENT TAKES PART OF A TRACT OF LAND BY FLOODING, IT
MUST PAY FOR THE DAMAGE CAUSED BY RESULTING EROSION TO THE REMAINDER OF
THE TRACT.  PP. 750-751. 

4.  IF THE RESULTING EROSION IS IN FACT PREVENTABLE BY PRUDENT
MEASURES, THE COST OF THAT PREVENTION IS A PROPER BASIS FOR DETERMINING
THE DAMAGE.  P. 751. 

5.  WHEN THE GOVERNMENT TAKES LAND BY FLOODING, IT MUST PAY THE FULL
VALUE THEREOF, EVEN THOUGH THE OWNER SUBSEQUENTLY, WITH THE CONSENT OF
THE WAR DEPARTMENT, RECLAIMS MOST OF IT BY FILLING.  P. 751. 

6.  NOTHING IN THE RECORD OF THIS CASE JUSTIFIES THIS COURT IN
SETTING ASIDE CONCURRENT FINDINGS BY THE TWO COURTS BELOW THAT THE
LANDOWNER WAS ENTITLED TO COMPENSATION FOR AN EASEMENT FOR THE
INTERMITTENT FLOODING OF HIS LAND ABOVE THE NEW PERMANENT WATER LEVEL
CREATED BY THE GOVERNMENT'S DAM.  P. 751. 

UNITED STATES V. DICKINSON. 

NO. 77.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT* . 

*TOGETHER WITH NO. 78, UNITED STATES V. WITHROW, ALSO ON CERTIORARI
TO THE SAME COURT. 

IN SUITS UNDER THE TUCKER ACT, JUDICIAL CODE SEC. 24(20), 28 U.S.C.
SEC. 41(20), RESPONDENTS RECOVERED JUDGMENTS AGAINST THE GOVERNMENT FOR
THE VALUE OF EASEMENTS TAKEN BY IT TO FLOOD PERMANENTLY PART OF THEIR
LAND, FOR DAMAGES BY EROSION TO PARTS OF THEIR LAND AND FOR AN EASEMENT
FOR INTERMITTENT FLOODING OF PARTS OF THEIR LAND.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  152 F.2D 865.  THIS COURT GRANTED CERTIORARI.  328
U.S. 828.  AFFIRMED, P. 751. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE ARE TWO SUITS BROUGHT UNDER THE TUCKER ACT (JUDICIAL CODE SEC.
24(20), 28 U.S.C. SEC. 41(20)) TO RECOVER THE VALUE OF PROPERTY CLAIMED
TO HAVE BEEN TAKEN BY THE GOVERNMENT.  THE SUITS WERE CONSOLIDATED FOR
PURPOSES OF THE TRIAL AND THOUGH THEY PRESENT MINOR DIFFERENTIATING
FACTORS THEY MAY HERE, AS BELOW, BE DISPOSED OF BY A SINGLE OPINION. 

IN ORDER TO IMPROVE THE NAVIGABILITY OF THE KANAWHA RIVER, WEST
VIRGINIA, CONGRESS AUTHORIZED CONSTRUCTION OF THE WINFIELD DAM, SOUTH
CHARLESTON.  ACT OF AUGUST 30, 1935, 49 STAT. 1028, 1035, IN CONNECTION
WITH H. DOC. NO. 31, 73D CONG., 1ST SESS., PP. 2-4.  THE WATER ABOVE
THE DAM WAS TO BE IMPOUNDED TO CREATE A DEEPER CHANNEL AND TO RAISE THE
RIVER POOL LEVEL IN THAT AREA.  NOTICE OF THE PROPOSED POOL ELEVATION
WAS GIVEN TO ABUTTING LANDOWNERS ON JULY 1, 1936, AND THE DAM WAS
COMPLETED AND OFFICIALLY ACCEPTED BY THE UNITED STATES ON AUGUST 20,
1937.  THE RIVER WAS TO BE RAISED BY SUCCESSIVE STAGES FROM 554.65 FEET
TO 566 FEET ABOVE SEA LEVEL.  THAT LEVEL WAS NOT REACHED UNTIL
SEPTEMBER 22, 1938.  AS A RESULT OF THE RAISING OF THE RIVER THE LAND
BELONGING TO THE RESPONDENTS WAS PERMANENTLY FLOODED.  IN ADDITION,
EROSION ATTRIBUTABLE TO THE IMPROVEMENT DAMAGED THE LAND WHICH FORMED
THE NEW BANK OF THE POOL. 

RESPONDENTS RECOVERED JUDGMENTS FOR THE VALUE OF EASEMENTS TAKEN BY
THE UNITED STATES TO FLOOD PERMANENTLY LANDS BELONGING TO THEM. 
DAMAGES WERE ALSO AWARDED FOR THE EROSION, BASED ON THE COST OF
PROTECTIVE MEASURES WHICH THE LANDOWNERS MIGHT HAVE TAKEN TO PREVENT
THE LOSS.  IN ADDITION, THE COURT FOUND THAT THE UNITED STATES HAD ALSO
ACQUIRED AN EASEMENT FOR INTERMITTENT FLOODING OF PART OF THE LAND
BELONGING TO THE DEFENDANTS, AND ALLOWED JUDGMENT FOR THE VALUE OF SUCH
AN EASEMENT.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE DISTRICT
COURT'S JUDGMENT.  152 F.2D 865.  WE GRANTED CERTIORARI, 328 U.S. 828,
BECAUSE IMPORTANT QUESTIONS WERE RAISED RELEVANT TO THE DETERMINATION
OF JUST COMPENSATION FOR THE TAKING OF PRIVATE PROPERTY BY THE
GOVERNMENT. 

FIRST.  THE PRINCIPAL ATTACK BY THE UNITED STATES AGAINST THE
JUDGMENTS IS THAT BOTH ACTIONS WERE OUTLAWED.  THE APPLICABLE STATUTE
OF LIMITATIONS IS SIX YEARS.  THE COMPLAINTS WERE FILED ON APRIL 1,
1943.  THE GOVERNMENT ARGUES THAT THE STATUTE BEGAN TO RUN ON OCTOBER
21, 1936, WHEN THE DAM BEGAN TO IMPOUND WATER.  IN ANY EVENT, IT
MAINTAINS THAT THE SIX YEARS BEGAN TO RUN NOT LATER THAN ON MAY 30,
1937, WHEN THE DAM WAS FULLY CAPABLE OF OPERATION, THE WATER WAS RAISED
ABOVE ITS FORMER LEVEL, AND THE PROPERTY OF THE RESPONDENTS WAS
PARTIALLY SUBMERGED FOR THE FIRST TIME.  WHILE ON THE LATTER VIEW THE
TIME FOR TAKING HAD NOT RUN UNDER THE STATUTE, DICKINSON'S CLAIM WOULD
BE BARRED BECAUSE HE ACQUIRED THE LAND AFTER THAT DATE. 

THE GOVERNMENT COULD, OF COURSE, HAVE TAKEN APPROPRIATE PROCEEDINGS
TO CONDEMN AS EARLY AS IT CHOSE BOTH LAND AND FLOWAGE EASEMENTS.  BY
SUCH PROCEEDINGS IT COULD HAVE FIXED THE TIME WHEN THE PROPERTY WAS
"TAKEN."  THE GOVERNMENT CHOSE NOT TO DO SO.  IT LEFT THE TAKING TO
PHYSICAL EVENTS, THEREBY PUTTING ON THE OWNER THE ONUS OF DETERMINING
THE DECISIVE MOMENT IN THE PROCESS OF ACQUISITION BY THE UNITED STATES
WHEN THE FACT OF TAKING COULD NO LONGER BE IN CONTROVERSY.  THESE SUITS
AGAINST THE GOVERNMENT ARE AUTHORIZED BY THE TUCKER ACT EITHER AS
CLAIMS "FOUNDED UPON THE CONSTITUTION OF THE UNITED STATES" OR AS
ARISING UPON IMPLIED CONTRACTS WITH THE GOVERNMENT.  (SEE THE
DISCUSSION OF JURISDICTION BOTH IN THE OPINION OF THE COURT AND IN THE
CONCURRING OPINION IN UNITED STATES V. LYNAH, 188 U.S. 445, AND IN
TEMPEL V. UNITED STATES, 248 U.S. 121.)  BUT WHETHER THE THEORY OF
THESE SUITS BE THAT THERE WAS A TAKING UNDER THE FIFTH AMENDMENT, AND
THAT THEREFORE THE TUCKER ACT MAY BE INVOKED BECAUSE IT IS A CLAIM
FOUNDED UPON THE CONSTITUTION, OR THAT THERE WAS AN IMPLIED PROMISE BY
THE GOVERNMENT TO PAY FOR IT, IS IMMATERIAL.  IN EITHER EVENT, THE
CLAIM TRACES BACK TO THE PROHIBITION OF THE FIFTH AMENDMENT, "NOR SHALL
PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION." 
THE CONSTITUTION IS "INTENDED TO PRESERVE PRACTICAL AND SUBSTANTIAL
RIGHTS, NOT TO MAINTAIN THEORIES."  DAVIS V. MILLS, 194 U.S. 451, 457. 
ONE OF THE MOST THEORY-RIDDEN OF LEGAL CONCEPTS IS A "CAUSE OF
ACTION."  THIS COURT HAS RECOGNIZED ITS "SHIFTING MEANINGS" AND THE
DANGER OF DETERMINING RIGHTS BASED UPON DEFINITIONS OF "A CAUSE OF
ACTION" UNRELATED TO THE FUNCTION WHICH THE CONCEPT SERVES IN A
PARTICULAR SITUATION.  UNITED STATES V. MEMPHIS COTTON OIL CO., 288
U.S. 62, 67 ET SEQ. 

PROPERTY IS TAKEN IN THE CONSTITUTIONAL SENSE WHEN INROADS ARE MADE
UPON AN OWNER'S USE OF IT TO AN EXTENT THAT, AS BETWEEN PRIVATE
PARTIES, A SERVITUDE HAS BEEN ACQUIRED EITHER BY AGREEMENT OR IN COURSE
OF TIME.  THE FIFTH AMENDMENT EXPRESSES A PRINCIPLE OF FAIRNESS AND NOT
A TECHNICAL RULE OF PROCEDURE ENSHRINING OLD OR NEW NICETIES REGARDING
"CAUSES OF ACTION" - WHEN THEY ARE BORN, WHETHER THEY PROLIFERATE, AND
WHEN THEY DIE.  WE ARE NOT NOW CALLED UPON TO DECIDE WHETHER IN A
SITUATION LIKE THIS A LANDOWNER MIGHT BE ALLOWED TO BRING SUIT AS SOON
AS INUNDATION THREATENS.  ASSUMING THAT SUCH AN ACTION WOULD BE
SUSTAINED, IT IS NOT A GOOD ENOUGH REASON WHY HE MUST SUE THEN OR HAVE,
FROM THAT MOMENT, THE STATUTE OF LIMITATIONS RUN AGAINST HIM.  IF SUIT
MUST BE BROUGHT, LEST HE JEOPARDIZE HIS RIGHTS, AS SOON AS HIS LAND IS
INVADED, OTHER CONTINGENCIES WOULD BE RUNNING AGAINST HIM - FOR
INSTANCE, THE UNCERTAINTY OF THE DAMAGE AND THE RISK OF RES JUDICATA
AGAINST RECOVERING LATER FOR DAMAGE AS YET UNCERTAIN.  THE SOURCE OF
THE ENTIRE CLAIM - THE OVERFLOW DUE TO RISES IN THE LEVEL OF THE RIVER
IS NOT A SINGLE EVENT; IT IS CONTINUOUS.  AND AS THERE IS NOTHING IN
REASON, SO THERE IS NOTHING IN LEGAL DOCTRINE, TO PRECLUDE THE LAW FROM
MEETING SUCH A PROCESS BY POSTPONING SUIT UNTIL THE SITUATION BECOMES
STABILIZED.  AN OWNER OF LAND FLOODED BY THE GOVERNMENT WOULD NOT
UNNATURALLY POSTPONE BRINGING A SUIT AGAINST THE GOVERNMENT FOR THE
FLOODING UNTIL THE CONSEQUENCES OF INUNDATION HAVE SO MANIFESTED
THEMSELVES THAT A FINAL ACCOUNT MAY BE STRUCK. 

WHEN DEALING WITH A PROBLEM WHICH ARISES UNDER SUCH DIVERSE
CIRCUMSTANCES PROCEDURAL RIGIDITIES SHOULD BE AVOIDED.  ALL THAT WE ARE
HERE HOLDING IS THAT WHEN THE GOVERNMENT CHOOSES NOT TO CONDEMN LAND
BUT TO BRING ABOUT A TAKING BY A CONTINUING PROCESS OF PHYSICAL EVENTS,
THE OWNER IS NOT REQUIRED TO RESORT EITHER TO PIECEMEAL OR TO PREMATURE
LITIGATION TO ASCERTAIN THE JUST COMPENSATION FOR WHAT IS REALLY
"TAKEN."  ACCORDINGLY, WE FIND THAT THE TAKING WHICH WAS THE BASIS OF
THESE SUITS WAS NOT COMPLETE SIX YEARS PRIOR TO APRIL 1, 1943, NOR AT A
TIME PRECEDING DICKINSON'S OWNERSHIP.  IN THIS CONCLUSION WE ARE
FORTIFIED BY THE FACT THAT THE TWO LOWER COURTS REACHED THE SAME
CONCLUSION ON WHAT IS AFTER ALL A PRACTICAL MATTER AND NOT A TECHNICAL
RULE OF LAW. 

NOTHING HERETOFORE RULED BY THE COURT RUNS COUNTER TO WHAT WE HAVE
SAID.  THE GOVERNMENT FINDS COMFORT IN PORTSMOUTH CO. V. UNITED STATES,
260 U.S. 327.  BUT IN THAT CASE THE PROBLEM WAS WHETHER BY PUTTING A
GUN BATTERY INTO PERMANENT POSITION WITH A VIEW TO CONVERTING AN AREA,
FOR ALL PRACTICAL PURPOSES, INTO AN ARTILLERY RANGE, THE GOVERNMENT
INEVITABLY TOOK AN EASEMENT IN THE LAND OVER WHICH THE GUNS WERE TO BE
FIRED.  THE ISSUE WAS NOT WHEN A SUIT MUST BE BROUGHT ON A CLAIM IN
RESPECT TO LAND TAKEN BY THE UNITED STATES, WHICH IS THE ISSUE BEFORE
US, BUT WHETHER THERE HAD BEEN A TAKING AT ALL. 

SECOND.  THE GOVERNMENT CHALLENGES THE COMPENSATION AWARDED FOR
DAMAGE TO THE LAND DUE TO EROSION.  IT REGARDS THIS DAMAGE AS
CONSEQUENTIAL, TO BE BORNE WITHOUT ANY RIGHT TO COMPENSATION.  PEABODY
V. UNITED STATES, 231 U.S. 530.  OF COURSE, PAYMENT NEED ONLY BE MADE
FOR WHAT IS TAKEN, BUT FOR ALL THAT THE GOVERNMENT TAKES IT MUST PAY. 
WHEN IT TAKES PROPERTY BY FLOODING, IT TAKES THE LAND WHICH IT
PERMANENTLY FLOODS AS WELL AS THAT WHICH INEVITABLY WASHES AWAY AS A
RESULT OF THAT FLOODING.  THE MERE FACT THAT ALL THE UNITED STATES
NEEDS AND PHYSICALLY APPROPRIATES IS THE LAND UP TO THE NEW LEVEL OF
THE RIVER, DOES NOT DETERMINE WHAT IN NATURE IT HAS TAKEN.  IF THE
GOVERNMENT CANNOT TAKE THE ACREAGE IT WANTS WITHOUT ALSO WASHING AWAY
MORE, THAT MORE BECOMES PART OF THE TAKING.  THIS FALLS UNDER A
PRINCIPLE THAT IN OTHER ASPECTS HAS FREQUENTLY BEEN RECOGNIZED BY THIS
COURT.  IT WAS THUS PUT IN BAUMAN V. ROSS, 167 U.S. 548, 574:  "WHEN
PART ONLY OF A PARCEL OF LAND IS TAKEN FOR A HIGHWAY, THE VALUE OF THAT
PART IS NOT THE SOLE MEASURE OF THE COMPENSATION OR DAMAGES TO BE PAID
TO THE OWNER; BUT THE INCIDENTAL INJURY OR BENEFIT TO THE PART NOT
TAKEN IS ALSO TO BE CONSIDERED.  WHEN THE PART NOT TAKEN IS LEFT IN
SUCH SHAPE OR CONDITION AS TO BE IN ITSELF OF LESS VALUE THAN BEFORE,
THE OWNER IS ENTITLED TO ADDITIONAL DAMAGES ON THAT ACCOUNT."  SO,
ALSO, UNITED STATES V. WELCH, 217 U.S. 333; UNITED STATES V. GRIZZARD,
219 U.S. 180.  COMPARE SHARP V. UNITED STATES, 191 U.S. 341, 355;
CAMPBELL V. UNITED STATES, 266 U.S. 368.  CONGRESS HAS RECOGNIZED THAT
DAMAGE TO THE OWNER IS ASSESSED NOT ONLY FOR THE VALUE OF THE PART
TAKEN BUT ALSO "FOR ANY INJURY TO THE PART NOT TAKEN."  SEE SEC. 6 OF
THE ACT OF JULY 18, 1918, 40 STAT. 911, 33 U.S.C. 595.  IF THE
RESULTING EROSION WHICH, AS A PRACTICAL MATTER, CONSTITUTED PART OF THE
TAKING WAS IN FACT PREVENTABLE BY PRUDENT MEASURES, THE COST OF THAT
PREVENTION IS A PROPER BASIS FOR DETERMINING THE DAMAGE, AS THE COURTS
BELOW HELD. 

THIRD.  AT CONSIDERABLE EXPENSE, AND WITH THE CONSENT OF THE WAR
DEPARTMENT, DICKINSON RECLAIMED MOST OF HIS LAND WHICH THE GOVERNMENT
ORIGINALLY TOOK BY FLOODING.  THE GOVERNMENT CLAIMS THAT THIS
DISENTITLED HIM TO BE PAID FOR THE ORIGINAL TAKING.  THE COURTS BELOW
PROPERLY REJECTED THIS DEFENSE.  WHEN THE PROPERTY WAS FLOODED THE
UNITED STATES ACQUIRED THE LAND AND IT BECAME PART OF THE RIVER.  BY
HIS RECLAMATION, DICKINSON APPROPRIATED PART OF WHAT BELONGED TO THE
UNITED STATES.  WHETHER THE WAR DEPARTMENT COULD LEGALLY AUTHORIZE
DICKINSON'S RECLAMATION OR WHETHER IT WAS IN FACT A TRESPASS HOWEVER
INNOCENT, IS NOT BEFORE US.  BUT NO USE TO WHICH DICKINSON COULD
SUBSEQUENTLY PUT THE PROPERTY BY HIS RECLAMATION EFFORTS CHANGED THE
FACT THAT THE LAND WAS TAKEN WHEN IT WAS TAKEN AND AN OBLIGATION TO PAY
FOR IT THEN AROSE. 

FOURTH.  JUDGMENT WAS ALSO ALLOWED AGAINST THE UNITED STATES FOR
TAKING AN EASEMENT FOR INTERMITTENT FLOODING OF LAND ABOVE THE NEW
PERMANENT LEVEL, AND A VALUE FOR SUCH EASEMENTS WAS ASSESSED.  WE FIND
NOTHING IN THIS RECORD TO JUSTIFY OUR SETTING ASIDE THESE CONCURRENT
FINDINGS BY TWO COURTS.  UNITED STATES V. O'DONNELL, 303 U.S. 501, 508;
ALLEN V. TRUST CO., 326 U.S. 630, 636.  JUDGMENTS AFFIRMED. 
..END :






















AIRCRAFT & DIESEL CORP. V. HIRSCH, 331 U.S. 752 


NO. 95.  ARGUED JANUARY 15, 1947.  - DECIDED JUNE 16, 1947.  - 62
F.SUPP.  520, AFFIRMED. 


1.  PURSUANT TO THE FIRST AND SECOND RENEGOTIATION ACTS, THE SECRETARY
OF WAR AND THE WAR CONTRACTS ADJUSTMENT BOARD, RESPECTIVELY, DETERMINED
THAT APPELLANT HAD REALIZED EXCESSIVE PROFITS DURING TWO YEARS ON
SUBCONTRACTS UNDER WHICH IT HAD SUPPLIED PARTS TO CONTRACTORS
MANUFACTURING WAR EQUIPMENT FOR THE ARMY; AND THE UNDER SECRETARY OF
WAR DIRECTED CERTAIN OF APPELLANT'S CUSTOMERS TO WITHHOLD AND PAY INTO
THE TREASURY SUMS DUE APPELLANT EQUAL TO SUCH EXCESSIVE PROFITS (LESS
TAX CREDITS) FOR THE SECOND OF THE YEARS IN QUESTION.  AFTER
PETITIONING THE TAX COURT FOR REDETERMINATION AND WHILE SUCH
PROCEEDINGS WERE PENDING, APPELLANT SUED IN A FEDERAL DISTRICT COURT
FOR A DECLARATORY JUDGMENT THAT THE RENEGOTIATION ACTS ARE
UNCONSTITUTIONAL AND FOR AN INJUNCTION AGAINST FURTHER PROCEEDINGS
THEREUNDER.  HELD: 

(A)  THE SUIT IS PREMATURE, SINCE APPELLANT HAD NOT EXHAUSTED ITS
ADMINISTRATIVE REMEDY BEFORE THE TAX COURT.  PP. 764-774. 

(B)  THE DISTRICT COURT HAD NO JURISDICTION IN EQUITY, SINCE
APPELLANT HAD A COMPLETE REMEDY AT LAW BY ACTIONS AGAINST THE
CONTRACTORS TO WHICH IT HAD SUPPLIED THE PARTS.  PP. 774-781. 

2.  MERE SUGGESTIONS OF CLAIM FOR RELIEF RAISING SERIOUS
CONSTITUTIONAL QUESTIONS ARE NOT TO BE ENTERTAINED UPON DUBIOUS
PRESENTATIONS OR, MOST CERTAINLY, WHEN THE PRESENTATION REASONABLY MAY
BE TAKEN AS NOT INTENDED TO PUT THEM FORWARD SQUARELY AND INESCAPABLY. 
P. 763. 

3.  THE DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES REQUIRES
NOT MERELY THE INITIATION OF PRESCRIBED ADMINISTRATIVE PROCEDURES; IT
REQUIRES PURSUING THEM TO THEIR APPROPRIATE CONCLUSION AND AWAITING
THEIR FINAL OUTCOME BEFORE SEEKING JUDICIAL INTERVENTION.  P. 767. 

4.  WHERE CONGRESS HAS CLEARLY COMMANDED THAT ADMINISTRATIVE JUDGMENT
BE TAKEN INITIALLY OR EXCLUSIVELY, THE COURTS HAVE NO LAWFUL FUNCTION
TO ANTICIPATE THE ADMINISTRATIVE DECISION WITH THEIR OWN, WHETHER OR
NOT WHEN IT HAS BEEN RENDERED THEY MAY INTERVENE EITHER IN PRESUMED
ACCORDANCE WITH CONGRESS' WILL OR BECAUSE, FOR CONSTITUTIONAL REASONS,
ITS WILL TO EXCLUDE THEM HAS BEEN EXERTED IN AN INVALID MANNER.  P.
767. 

5.  BY PROVIDING IN THE RENEGOTIATION ACTS FOR ADMINISTRATIVE
DETERMINATIONS OF EXCESSIVE PROFITS BY THE WAR CONTRACTS PRICE
ADJUSTMENT BOARD AND FOR REDETERMINATIONS DE NOVO BY THE TAX COURT,
CONGRESS INTENDED TO SECURE UNIFORMITY OF ADMINISTRATIVE POLICY AND
DISPOSITION, EXPERTNESS OF JUDGMENT, AND FINALITY OF DETERMINATION, AT
LEAST OF THOSE THINGS WHICH CONGRESS INTENDED TO AND COULD COMMIT TO
SUCH AGENCIES FOR FINAL DECISION.  PP. 767-768. 

6.  CONGRESS INTENDED THE TAX COURT'S FUNCTIONS WITH RESPECT TO
REDETERMINATION OF EXCESSIVE PROFITS UNDER WAR CONTRACTS NOT ONLY TO BE
PUT IN MOTION BUT TO BE FULLY PERFORMED, BEFORE JUDICIAL INTERVENTION
AT THE INSTANCE OF ONE IN APPELLANT'S POSITION, EVEN THOUGH
CONSTITUTIONAL QUESTIONS ARE RAISED.  P. 771. 

7.  WHERE CONGRESS CLEARLY INTENDED TO REQUIRE ADMINISTRATIVE
DETERMINATION, EITHER TO THE EXCLUSION OF JUDICIAL ACTION OR IN ADVANCE
OF IT, A STRONG SHOWING IS REQUIRED, BOTH OF INADEQUACY OF THE
PRESCRIBED PROCEDURE AND OF IMPENDING HARM, TO PERMIT SHORT-CIRCUITING
THE ADMINISTRATIVE PROCESS - ESPECIALLY IN THE CASE OF WARTIME
LEGISLATION RESTING, AT LEAST IN PART, ON WAR POWERS.  PP. 773-774. 

8.  APPELLANT SUBCONTRACTOR HAS AN ADEQUATE REMEDY AT LAW BY SUITS
UPON ITS CONTRACTS AGAINST ITS CUSTOMERS; SINCE SUCH SUITS ARE NOT
FORBIDDEN EXPRESSLY OR IMPLIEDLY BY THE RENEGOTIATION ACTS, THEY ARE
NOT MADE DEPENDENT UPON COMPLETION OF THE TAX COURT PROCEEDINGS, AND
THERE APPEARS TO BE NO REASON WHY EVERY QUESTION OF CONSTITUTIONALITY
RAISED IN THIS SUIT COULD NOT BE PRESENTED AND DETERMINED IN SUCH A
SUIT.  PP. 775-777. 

9.  APPELLANT'S ALLEGATIONS THAT IT WOULD SUFFER IRREPARABLE INJURY
AS A RESULT OF THE WITHHOLDING OF THE FUNDS DUE FROM ITS CUSTOMERS ARE
INSUFFICIENT TO SUSTAIN THE INTERVENTION OF A COURT OF EQUITY,
PARTICULARLY TO AVOID OR ANTICIPATE THE CONGRESSIONALLY AUTHORIZED
PROCEEDING.  PP. 777-778. 

10.  NOR, ON THE FACTS OF THIS CASE, IS THE SHOWING MADE CONCERNING
MULTIPLICITY OF SUITS SUFFICIENT TO JUSTIFY INTERVENTION OF A COURT OF
EQUITY OR THE SUBSTITUTION OF ITS EXTRAORDINARY RELIEF FOR WHAT APPEARS
TO BE A FULL, ADEQUATE AND COMPLETELY AVAILABLE REMEDY AT LAW.  PP. 778
781. 

AIRCRAFT & DIESEL EQUIPMENT CORP. V. HIRSCH ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

WHILE PROCEEDINGS WERE PENDING IN THE TAX COURT FOR REDETERMINATION
OF EXCESSIVE PROFITS DETERMINED BY THE SECRETARY OF WAR AND THE WAR
CONTRACTS PRICE ADJUSTMENT BOARD TO HAVE BEEN REALIZED BY A
SUBCONTRACTOR ON PRODUCTION OF WAR EQUIPMENT, THE SUBCONTRACTOR SUED IN
A FEDERAL DISTRICT COURT FOR A DECLARATORY JUDGMENT THAT THE
RENEGOTIATION ACTS ARE UNCONSTITUTIONAL AND FOR AN INJUNCTION AGAINST
FURTHER PROCEEDINGS THEREUNDER.  THE DISTRICT COURT DISMISSED THE
SUIT.  62 F.SUPP.  520.  ON APPEAL TO THIS COURT, AFFIRMED, P. 781. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS THE FOURTH IN A SERIES SEEKING HERE A DETERMINATION OF
THE INVALIDITY, ON CONSTITUTIONAL GROUNDS, OF THE FIRST AND SECOND
RENEGOTIATION ACTS  FN1  AND ALLIED LEGISLATION. 

IN COFFMAN V. BREEZE CORPORATIONS, 323 U.S. 316, AND IN ALMA MOTOR
CO. V. TIMKEN-DETROIT AXLE CO., 329 U.S. 129, THE ROYALTY ADJUSTMENT
ACT  FN2  WAS ATTACKED.  THE ALMA MOTOR CASE WAS REMANDED TO THE
CIRCUIT COURT OF APPEALS FOR A DETERMINATION OF THE ACT'S
APPLICABILITY.  THE SUIT IN THE COFFMAN CASE WAS BY A PATENT OWNER TO
RESTRAIN HIS LICENSEES FROM PAYING ACCRUED ROYALTIES TO THE GOVERNMENT
PURSUANT TO THE ACT'S PROVISIONS.  WE HELD THAT THE COMPLAINT HAD BEEN
RIGHTLY DISMISSED FOR WANT OF EQUITY JURISDICTION, SINCE THE PLAINTIFF
HAD AN ADEQUATE REMEDY AT LAW BY SUIT AGAINST ITS LICENSEES, AND ALSO
FOR WANT OF A JUSTICIABLE CASE OR CONTROVERSY. 

IN MINE SAFETY CO. V. FORRESTAL, 326 U.S. 371, A GOVERNMENT
CONTRACTOR CHALLENGED THE RENEGOTIATION ACTS.  FN3  THE COMPLAINT
SOUGHT TO ENJOIN THE SECRETARY OF THE NAVY FROM TAKING ACTION "WHICH
WOULD STOP PAYMENT BY THE GOVERNMENT OF MONEY LAWFULLY IN THE UNITED
STATES TREASURY TO SATISFY THE GOVERNMENT'S AND NOT THE SECRETARY'S
DEBT TO THE APPELLANT."  326 U.S. AT 374.  ACCORDINGLY WE HELD THAT THE
GOVERNMENT WAS AN INDISPENSABLE PARTY.  SINCE IT NEITHER HAD BEEN
JOINED IN THE SUIT NOR HAD CONSENTED TO BE SUED IN SUCH A PROCEEDING,
IT FOLLOWED THAT THE COMPLAINT HAD BEEN PROPERLY DISMISSED. 

IN ONE OTHER CASE, MACAULEY V. WATERMAN S.S. CORP., 327 U.S. 540,
CONSTITUTIONALITY WAS NOT INVOLVED, BUT COVERAGE OF THE RENEGOTIATION
ACTS WAS PUT IN ISSUE.  THE SUIT WAS BROUGHT IN A DISTRICT COURT FOR A
DECLARATORY JUDGMENT AND TO RESTRAIN FURTHER RENEGOTIATION PROCEEDINGS
AFFECTING THE SPECIFIED CONTRACTS.  THE CONTRACTOR HAD NOT SOUGHT A
DECISION ON COVERAGE FROM THE TAX COURT.  WE HELD THAT THE TAX COURT
HAS POWER TO DECIDE SUCH QUESTIONS IN THE PROCEEDINGS AUTHORIZED BY
SEC. 403(E)(1) OF THE SECOND RENEGOTIATION ACT.  HENCE, UNDER THE
AUTHORITY OF MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, THE
COMPLAINT IN THE WATERMAN CASE ALSO WAS HELD RIGHTLY TO HAVE BEEN
DISMISSED, IN THIS INSTANCE FOR THE PLAINTIFF'S FAILURE TO EXHAUST ITS
ADMINISTRATIVE REMEDY. 

NOW THE AIRCRAFT & DIESEL EQUIPMENT CORPORATION SEEKS A DECLARATORY
JUDGMENT THAT THE FIRST AND SECOND RENEGOTIATION ACTS ARE
UNCONSTITUTIONAL ON VARIOUS GROUNDS.  INJUNCTIVE RELIEF ALSO IS ASKED. 
AND, IN ADDITION TO THE CONSTITUTIONAL QUESTIONS, DETERMINATION IS
SOUGHT OF ISSUES OF COVERAGE AND OTHER MATTERS. 

THE DEFENDANTS, APPELLEES HERE, CONSIST OF THE MEMBERS OF THE WAR
CONTRACTS PRICE ADJUSTMENT BOARD, THE SECRETARY OF WAR, AND THE UNDER
SECRETARY OF WAR.  FN4  PURSUANT TO THE STATUTORY REQUIREMENT, 50 STAT.
751, 752, 28 U.S.C. SEC. 380(A), A DISTRICT COURT OF THREE JUDGES WAS
ESPECIALLY CONVENED.  AFTER HEARING, THE COMPLAINT WAS DISMISSED.  FN5
ONE GROUND FOR THIS ACTION WAS THAT THE SUIT IS PREMATURE, SINCE
PROCEEDINGS WERE PENDING AND UNDETERMINED IN THE TAX COURT, PURSUANT TO
APPELLANT'S APPLICATIONS, FOR REDETERMINATION OF ITS ALLEGEDLY
EXCESSIVE PROFITS FOR 1942 AND 1943.  FN6  THE COURT ALSO HELD THAT IT
WAS WITHOUT JURISDICTION IN EQUITY, SINCE IN ITS VIEW ADEQUATE REMEDY
AT LAW WAS AVAILABLE TO AIRCRAFT.  PROBABLE JURISDICTION OF THE APPEAL
WAS DULY NOTED HERE.  FN7 

WE THINK THE DISTRICT COURT CORRECTLY DISMISSED THE COMPLAINT, AND
FOR THE REASONS STATED AS GROUNDING ITS ACTION.  THE ISSUES EXPANSIVELY
INCLUDE ALMOST ALL COMPREHENDED IN THE CAUSES PREVIOUSLY DETERMINED
HERE.  BUT THE CASE REACHES THIS COURT IN A POSTURE DIFFERING IN SOME
SUBSTANTIAL RESPECTS FROM THAT CHARACTERIZING ANY OF THOSE
PROCEEDINGS.  HENCE IT BECOMES NECESSARY TO SET FORTH WITH SOME
PARTICULARITY THE FACTS AND CONTROLLING ISSUES. 

                                  I. 

APPELLANT IS IN THE BUSINESS OF MANUFACTURING DIESEL FUEL INJECTION
EQUIPMENT AND PRECISION PARTS, AND AIRCRAFT PRECISION PARTS.  ITS
MANUFACTURING ACTIVITIES, INSOFAR AS MATERIAL,  FN8 WERE CARRIED ON
UNDER SUBCONTRACTS WITH GOVERNMENT CONTRACTORS.  THE CONTRACTOR IN TURN
FURNISHED THE COMPLETED AIRCRAFT OR ENGINES TO THE UNITED STATES. 

PURSUANT TO THE FIRST RENEGOTIATION ACT, THE SECRETARY OF WAR, ACTING
THROUGH HIS DELEGATE THE UNDER SECRETARY OF WAR, DETERMINED ON OCTOBER
27, 1943, THAT DURING THE FISCAL YEAR ENDED NOVEMBER 30, 1942,
APPELLANT HAD REALIZED EXCESSIVE PROFITS (LESS TAX CREDITS) AMOUNTING
TO $204,000.  ON APRIL 29, 1944, THE UNDER SECRETARY DIRECTED
APPELLANT'S CUSTOMERS TO WITHHOLD THIS SUM FROM APPELLANT.  THEREAFTER
IT FILED A PETITION WITH THE TAX COURT  FN9  FOR A REDETERMINATION OF
THE ALLEGED EXCESSIVE PROFITS.  NEVERTHELESS, ON JULY 19, 1944, THE
UNDER SECRETARY FURTHER DIRECTED APPELLANT'S CUSTOMERS TO PAY THE
$204,000 INTO THE TREASURY OF THE UNITED STATES, AND THIS DIRECTION WAS
OBEYED.  FN10 

FOLLOWING THE FISCAL YEAR ENDED NOVEMBER 30, 1943, RENEGOTIATION
PROCEEDINGS WERE INSTITUTED UNDER THE SECOND RENEGOTIATION ACT.  ON
JANUARY 11, 1945, THE UNDER SECRETARY OF WAR, AS DELEGATE OF THE WAR
CONTRACTS PRICE ADJUSTMENT BOARD, ENTERED AN ORDER DETERMINING THAT
APPELLANT HAD REALIZED EXCESSIVE PROFITS OF $1,265,000.  DEDUCTION OF
TAX CREDITS REDUCED THIS AMOUNT TO APPROXIMATELY $270,000.  APPELLANT
AGAIN FILED A PETITION FOR REDETERMINATION WITH THE TAX COURT.  FN11
THEN FOLLOWED THIS SUIT. 

THE AMENDED COMPLAINT IS TOO LENGTHY FOR DETAILED SUMMARIZATION IN
THIS OPINION.  APART FROM ALLEGATIONS GOING TO CONSTITUTIONALITY AND
COVERAGE, INCLUDING ASSERTED DEFECTS IN THE RENEGOTIATION PROCEDURES
FOLLOWED,  FN12  THE COMPLAINT SOUGHT TO ESTABLISH JURISDICTION IN THE
DISTRICT COURT, EQUITABLE IN CHARACTER, BY SHOWING THE INADEQUACY OF
ALL AVAILABLE LEGAL OR OTHER REMEDIES.  THESE INCLUDED THE PENDING TAX
COURT PROCEEDINGS, POSSIBLE SUIT IN THE COURT OF CLAIMS FOLLOWING
COMPLETION OF THE TAX COURT'S DETERMINATION, AND ACTIONS AT LAW AGAINST
APPELLANT'S CUSTOMERS, CONTRACTORS WITH THE GOVERNMENT, TO RECOVER THE
AMOUNTS SAID TO BE DUE UNDER THEIR VARIOUS CONTRACTS. 

IN PARTICULAR IT WAS ALLEGED THAT, NOTWITHSTANDING THE PENDENCY OF
THE TAX COURT PROCEEDINGS, THE BOARD AND THE SECRETARY, OR HIS
DELEGATES, WERE TAKING STEPS TO PREVENT AIRCRAFT'S CUSTOMERS FROM
PAYING OVER TO IT MONEYS OWING ON CONTRACTS, AGGREGATING $270,000, AND
CLAIMED TO BE DUE THE GOVERNMENT AS EXCESSIVE PROFITS.  THE COMPLAINT
ALLEGED FURTHER THAT THE BOARD AND THE SECRETARY WERE THREATENING TO
DIRECT AIRCRAFT'S CUSTOMERS TO PAY THESE SUMS INTO THE TREASURY  FN13
AND THAT, UNLESS THEY WERE RESTRAINED, SUCH PAYMENT WOULD BE MADE, TO
APPELLANT'S IRREPARABLE INJURY.  FN14  NO DIRECT RELIEF WAS ASKED, BY
WAY OF JUDGMENT OR DECREE, FOR REFUND OF THE $204,000 COLLECTED BY THE
GOVERNMENT FROM APPELLANT'S CUSTOMERS, PURSUANT TO THE FIRST
RENEGOTIATION ACT, AS EXCESSIVE PROFITS REALIZED IN 1942.  IT WAS
SUGGESTED, HOWEVER, THAT IF THAT ACT SHOULD BE FOUND INVALID AND THE
SECOND ACT SUSTAINED,  FN15  THE GOVERNMENT SHOULD BE PERMITTED TO
COLLECT ONLY THE DIFFERENCE BETWEEN $270,000, THE AMOUNT DETERMINED TO
BE EXCESSIVE PROFITS FOR 1943, AND THE $204,000 COLLECTED FOR 1942. 
THE SUGGESTION, OF COURSE, IF FORMALLY MADE, WOULD BE SUBSTANTIALLY A
CLAIM AGAINST THE GOVERNMENT BY WAY OF SETOFF OF THE LATTER AMOUNT. 
CF. MINE SAFETY CO. V. FORRESTAL, SUPRA. 

THE GOVERNMENT HAS CONTESTED EACH OF APPELLANT'S CLAIMS.  BUT ITS
PRIMARY CONTENTIONS HAVE BEEN AIMED AT AIRCRAFT'S JURISDICTIONAL
SHOWING.  IT ARGUES THAT THE SUIT IN SUBSTANCE AND LEGAL EFFECT IS ONE
AGAINST THE UNITED STATES, TO WHICH THERE HAS BEEN NO GOVERNMENTAL
CONSENT, CF. MINE SAFETY CO. V. FORRESTAL, SUPRA; THAT THE SUIT IS
PREMATURE, BECAUSE THE TAX COURT PROCEEDINGS HAVE NOT BEEN COMPLETED
AND UNTIL THIS HAS BEEN DONE AIRCRAFT WILL NOT HAVE EXHAUSTED ITS
ADMINISTRATIVE REMEDY, CF. MACAULEY V. WATERMAN S.S. CORP., SUPRA; THAT
THE TAX COURT HAS BEEN GIVEN EXCLUSIVE JURISDICTION IN RENEGOTIATION
MATTERS; AND THAT, IN ANY EVENT, THERE IS NO JURISDICTION OF AN
EQUITABLE CHARACTER IN THE DISTRICT COURT, TO AFFORD THE RELIEF
APPELLANT SEEKS, SINCE IT HAS AN ADEQUATE REMEDY AT LAW BY SUIT UPON
ITS CONTRACTS TO RECOVER ANY AMOUNTS DUE FROM ITS CUSTOMERS, IN WHICH
ALL QUESTIONS OF CONSTITUTIONALITY MAY BE DETERMINED.  CF. COFFMAN V.
BREEZE CORPORATIONS, SUPRA. 

IN THE LATTER CONNECTION APPELLEE HIRSCH, AS CHAIRMAN OF THE BOARD,
HAS FILED AN AFFIDAVIT ADMITTING THAT HE AND THE OTHER APPELLEES,
UNLESS RESTRAINED, WILL TAKE STEPS, AS APPELLANT ALLEGES, TO PREVENT
PAYMENT OF THE $270,000 BY ITS CUSTOMERS TO IT, AND ALSO TO SECURE
PAYMENT OF THAT SUM INTO THE TREASURY.  THE AFFIDAVIT SETS FORTH,
HOWEVER, THAT DIRECTION FOR PAYMENT WILL NOT BE REQUIRED OR MADE AS TO
MORE THAN TWO OR THREE OF APPELLANT'S CUSTOMERS AND, IN THE EVENT THIS
DOES NOT RESULT IN PAYMENT OF THE FULL AMOUNT, THE GOVERNMENT WILL
PROCEED TO COLLECT WHATEVER MAY REMAIN BY SUIT AGAINST APPELLANT. 

AIRCRAFT, ON THE OTHER HAND, BOTH IN THE AMENDED COMPLAINT AND BY THE
SUPPORTING AFFIDAVIT OF ITS PRESIDENT, ALLEGED THAT NO SUCH SUM AS
$270,000 WAS OWING TO IT FROM, OR COULD BE COLLECTED BY DIRECTION TO,
ANY TWO OR THREE OF ITS CUSTOMERS.  RATHER IT WAS SET FORTH THAT
COLLECTION OF ANY SUCH AMOUNT COULD BE MADE ONLY BY DIRECTION TO SOME
SIXTEEN OR MORE CUSTOMERS.  AND ON THE SAME BASIS IT IS ASSERTED THAT
AIRCRAFT'S REMEDY BY SUIT AGAINST ITS CUSTOMERS WOULD REQUIRE
INSTITUTION OF NUMEROUS ACTIONS IN DIFFERENT JURISDICTIONS, RESULTING
IN EXPENSE AND DELAY, AS WELL AS LOSS OF GOOD WILL AND INCURRING THE
CONTINUED RISK OF THE CUSTOMERS' SOLVENCY.  FN16 ACCORDINGLY AIRCRAFT
CLAIMS THAT JURISDICTION IN EQUITY IS CONFERRED UPON THE DISTRICT COURT
BOTH BY REASON OF THE MULTIPLICITY OF SUITS INVOLVED IN ASSERTING THE
LEGAL REMEDY BY ACTIONS AGAINST ITS CUSTOMERS AND BECAUSE OF THE
INJURIOUS CONSEQUENCES WHICH WOULD FOLLOW FROM PURSUING THAT COURSE. 

                                 II. 

WE DO NOT FIND IT NECESSARY TO UNDERTAKE DETERMINING THE THRESHOLD
QUESTION WHETHER THE SUIT IS ONE AGAINST THE UNITED STATES.  WERE THE
ISSUE SQUARELY PRESENTED AS A FORMAL CLAIM FOR REFUND OR SETOFF
CONCERNING THE $204,000 COLLECTED BY THE GOVERNMENT FOR 1942, THE CASE
IN THAT ASPECT WOULD BE VERY CLOSE TO MINE SAFETY CO. V. FORRESTAL,
SUPRA.  FN17 

WE DO NOT TARRY, HOWEVER, TO CONSIDER FURTHER THIS FEATURE OF THE
CASE, SINCE THE ABSENCE OF FORMAL AND SPECIFIC CLAIM IN THE NATURE OF
SETOFF OR OTHERWISE INDICATES, WE THINK, A STRATEGIC DECISION TO AVOID
THE DIFFICULTIES WHICH WOULD FOLLOW UPON ITS DEFINITE AND UNEQUIVOCAL
ASSERTION, ON THE SCORE OF THE NATURE OF THE SUIT AS BEING ONE IN FACT
AND FUNCTION AGAINST THE GOVERNMENT.  SOMETHING MORE THAN A MERE
SUGGESTION OF CLAIM FOR RELIEF IS REQUIRED TO BRING INTO PLAY JUDICIAL
POWER OF AFFORDING REMEDY, ESPECIALLY WHEN IT APPEARS THERE MAY BE GOOD
REASON DELIBERATELY ACCEPTED FOR GOING NO FARTHER.  THIS IS REINFORCED
WHEN THE SUGGESTION, IF ACTED ON, WOULD INVOLVE THE COURT IN DECISION
OF SERIOUS CONSTITUTIONAL QUESTIONS.  THEY ARE NOT TO BE ENTERTAINED
UPON DUBIOUS PRESENTATIONS OR, MOST CERTAINLY, WHEN THE PRESENTATION
REASONABLY MAY BE TAKEN AS NOT INTENDED TO PUT THEM FORWARD SQUARELY
AND INESCAPABLY.  CF. RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549;
ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE CO., 329 U.S. 129.  ACCORDINGLY
WE PUT TO ONE SIDE THE LENGTHY ALLEGATIONS CONCERNING THE 1942
DETERMINATION, AND CONFINE OUR CONSIDERATION TO THE ISSUES RELATING TO
THE REDETERMINATION MADE FOR THE FISCAL YEAR OF 1943. 

THESE ALSO, THE GOVERNMENT URGES, SUBSTANTIALLY ARE EFFECTIVE TO MAKE
THE SUIT ONE AGAINST THE GOVERNMENT, TO WHICH IT HAS NOT CONSENTED. 
AND FOR THIS VIEW, LIKEWISE, IT RELIES UPON THE MINE SAFETY DECISION,
AS WELL AS OTHERS.  FN18  APPELLANT UNDERTAKES TO DISTINGUISH THE CASES
UPON THE BASIS THAT IN THE MINE SAFETY CASE THE OFFICIAL ACTION SOUGHT
TO BE ENJOINED WAS CONDUCT EFFECTIVE TO STOP THE PAYMENT OF FUNDS OUT
OF THE TREASURY, WHEREAS HERE THE ANALOGOUS CONDUCT AFFECTS NO FUNDS IN
THE GOVERNMENT'S ACTUAL POSSESSION BUT SEEKS ONLY TO TOUCH MONEYS HELD
BY THIRD PERSONS FOR APPELLANT'S OR THE GOVERNMENT'S ACCOUNT.  THE
DIFFERENCE, IT IS URGED, IS BETWEEN ACTION AFFECTING ONLY THE
WITHHOLDING OF GOVERNMENT MONEYS AND ACTION EFFECTIVE TO BRING ABOUT
COLLECTION FROM THIRD PERSONS OF MONEYS CLAIMED TO BE DUE TO THE
GOVERNMENT.    THAT DIFFERENCE INDEED MAY BE SUBSTANTIAL.  BUT WE DO
NOT DECIDE WHETHER IT IS SUFFICIENT TO ENABLE THE APPELLANT TO AVOID
THE DIFFICULTY PRESENTED OF FORECLOSING THE GOVERNMENT'S CLAIM BY A
SUIT BROUGHT ONLY AGAINST ITS OFFICIALS, ESSENTIALLY AS TRESPASSERS,
FN19  WITHOUT JOINING THE GOVERNMENT ITSELF.  IN OTHER WORDS, WE DO NOT
DETERMINE WHETHER THE SUIT IS, IN LEGAL EFFECT, ONE AGAINST THE
GOVERNMENT, SINCE IN OUR OPINION THE OTHER GROUNDS GOING TO THE
DISTRICT COURT'S JURISDICTION ARE ADEQUATE TO SUSTAIN ITS DISMISSAL OF
THE CAUSE. 

IN MACAULEY V. WATERMAN S.S. CORP., SUPRA, WE WERE CALLED UPON TO
CONSIDER THE RELATION BETWEEN THE TAX COURT PROCEEDINGS, AS PROVIDED BY
SEC. 403(E)(1), AND JUDICIAL PROCEEDINGS INSTITUTED IN THE DISTRICT OR
OTHER COURTS OF THE UNITED STATES IN REGARD TO RENEGOTIATION MATTERS. 
BY AN ORDER OF THE BOARD DETERMINING THE AMOUNT OF EXCESSIVE PROFITS
RECEIVED OR ACCRUED BY" HIM, TO FILE A PETITION FOR REDETERMINATION
WITH THE TAX COURT WITHIN NINETY DAYS AFTER NOTICE OF THE ORDER IS
MAILED.  FN21 THE SECTION THEN PROVIDES: 

"UPON SUCH FILING SUCH COURT SHALL HAVE EXCLUSIVE JURISDICTION, BY
ORDER, TO FINALLY DETERMINE THE AMOUNT, IF ANY, OF SUCH EXCESSIVE
PROFITS RECEIVED OR ACCRUED BY THE CONTRACTOR OR SUBCONTRACTOR, AND
SUCH DETERMINATION SHALL NOT BE REVIEWED OR REDETERMINED BY ANY COURT
OR AGENCY." 

THE SECTION EXPRESSLY STATES THAT THE PROCEEDING "SHALL NOT BE
TREATED AS A PROCEEDING TO REVIEW THE DETERMINATION OF THE BOARD,  FN22
BUT SHALL BE TREATED AS A PROCEEDING DE NOVO."  AND THE TAX COURT IS
GIVEN THE SAME POWERS AND DUTIES, "INSOFAR AS APPLICABLE," RESPECTING
"THE CONTRACTOR, THE SUBCONTRACTOR, THE BOARD AND THE SECRETARY, AND IN
RESPECT OF THE ATTENDANCE OF WITNESSES AND THE PRODUCTION OF PAPERS,"
TOGETHER WITH OTHER PROCEDURAL MATTERS, AS THE COURT HAS UNDER
SPECIFIED SECTIONS OF THE INTERNAL REVENUE CODE IN REDETERMINING A
DEFICIENCY IN TAXES.  MOREOVER, SEC. 403(E)(1) COMMANDS:  "THE FILING
OF A PETITION UNDER THIS SUBSECTION SHALL NOT OPERATE TO STAY THE
EXECUTION OF THE ORDER OF THE BOARD UNDER SUBSECTION (C)(2)." 

IN THE WATERMAN CASE, TAKING ACCOUNT OF THESE PROVISIONS, WE SAID:
"THE LEGISLATIVE HISTORY OF THE RENEGOTIATION ACT, MOREOVER, SHOWS THAT
CONGRESS INTENDED THE TAX COURT TO HAVE EXCLUSIVE JURISDICTION TO
DECIDE QUESTIONS OF FACT AND LAW,  FN23  WHICH LATTER INCLUDE THE ISSUE
RAISED HERE OF WHETHER THE CONTRACTS IN QUESTION ARE SUBJECT TO THE
ACT."  327 U.S. AT 544.  "TO GRANT THE INJUNCTION SOUGHT," THE OPINION
CONTINUED, "THE DISTRICT COURT WOULD HAVE TO DECIDE THIS ISSUE IN THE
FIRST INSTANCE.  WHETHER IT EVER CAN DO SO OR NOT, IT CANNOT NOW DECIDE
QUESTIONS OF COVERAGE WHEN THE ADMINISTRATIVE AGENCIES  FN24
AUTHORIZED TO DO SO HAVE NOT YET MADE THEIR DETERMINATION.  HERE JUST
AS IN THE MYERS CASE, THE ADMINISTRATIVE PROCESS, FAR FROM BEING
EXHAUSTED, HAD HARDLY BEGUN.  THE DISTRICT COURT CONSEQUENTLY WAS
CORRECT IN HOLDING THAT IT LACKED JURISDICTION TO ACT."  IBID., 544
545. 

THE WATERMAN CASE DIFFERED FROM THIS ONE IN THREE RESPECTS.  THERE
THE APPELLANT HAD "HARDLY BEGUN" THE ADMINISTRATIVE PROCESS, WHILE HERE
AIRCRAFT HAS DONE ALL THAT IT CAN DO.  THE WATERMAN CORPORATION HAD
CONTRACTED DIRECTLY WITH A GOVERNMENT AGENCY, THE MARITIME COMMISSION. 
HERE THE APPELLANT IS A SUBCONTRACTOR, A DIFFERENCE OF SOME IMPORTANCE
IN THE MATTER OF JURISDICTION IN EQUITY LATER TO BE NOTED.  THE
WATERMAN CASE, AS WE HAVE SAID, RAISED ONLY QUESTIONS OF COVERAGE, NOT
ISSUES OF CONSTITUTIONALITY.  HERE BOTH TYPES OF QUESTION ARE
PRESENTED.  ON THE OTHER HAND, THE CASES ARE SUBSTANTIALLY IDENTICAL IN
THE NATURE OF THE RELIEF SOUGHT.  EACH COMPLAINT ASKED FOR A
DECLARATORY JUDGMENT UPON THE LEGAL ISSUES AND FOR INJUNCTIVE RELIEF
RESTRAINING FURTHER ACTION LOOKING TOWARD APPLICATION OF THE ACT'S
PROVISIONS. 

WE DO NOT THINK THE DIFFERENCES MENTIONED ARE SUFFICIENT TO
DISTINGUISH THE CASES FOR PURPOSES OF APPLYING THE EXHAUSTION RULE. 
CERTAINLY NO SUCH EFFECT CAN BE DERIVED FROM THE FACT THAT IN THE
WATERMAN CASE THE PLAINTIFF HAD NOT BEGUN THE ADMINISTRATIVE PROCESS,
WHILE HERE AIRCRAFT HAS GONE AS FAR AS IT CAN.  THE DOCTRINE, WHEREVER
APPLICABLE, DOES NOT REQUIRE MERELY THE INITIATION OF PRESCRIBED
ADMINISTRATIVE PROCEDURES.  IT IS ONE OF EXHAUSTING THEM, THAT IS, OF
PURSUING THEM TO THEIR APPROPRIATE CONCLUSION AND, CORRELATIVELY, OF
AWAITING THEIR FINAL OUTCOME BEFORE SEEKING JUDICIAL INTERVENTION. 

THE VERY PURPOSE OF PROVIDING EITHER AN EXCLUSIVE OR AN INITIAL AND
PRELIMINARY ADMINISTRATIVE DETERMINATION IS TO SECURE THE
ADMINISTRATIVE JUDGMENT EITHER, IN THE ONE CASE, IN SUBSTITUTION FOR
JUDICIAL DECISION OR, IN THE OTHER, AS FOUNDATION FOR OR PERCHANCE TO
MAKE UNNECESSARY LATER JUDICIAL PROCEEDINGS.  WHERE CONGRESS HAS
CLEARLY COMMANDED THAT ADMINISTRATIVE JUDGMENT BE TAKEN INITIALLY OR
EXCLUSIVELY, THE COURTS HAVE NO LAWFUL FUNCTION TO ANTICIPATE THE
ADMINISTRATIVE DECISION WITH THEIR OWN, WHETHER OR NOT WHEN IT HAS BEEN
RENDERED THEY MAY INTERVENE EITHER IN PRESUMED ACCORDANCE WITH
CONGRESS' WILL OR BECAUSE, FOR CONSTITUTIONAL REASONS, ITS WILL TO
EXCLUDE THEM HAS BEEN EXERTED IN AN INVALID MANNER.  TO DO THIS NOT
ONLY WOULD CONTRAVENE THE WILL OF CONGRESS AS A MATTER OF RESTRICTING
OR DEFERRING JUDICIAL ACTION.  IT WOULD NULLIFY THE CONGRESSIONAL
OBJECTS IN PROVIDING THE ADMINISTRATIVE DETERMINATION.  IN THIS CASE
THESE INCLUDE SECURING UNIFORMITY OF ADMINISTRATIVE POLICY AND
DISPOSITION,  FN25  EXPERTNESS OF JUDGMENT, AND FINALITY IN
DETERMINATION, AT LEAST OF THOSE THINGS WHICH CONGRESS INTENDED TO AND
COULD COMMIT TO SUCH AGENCIES FOR FINAL DECISION. 

THERE CAN BE NO DOUBT WHATEVER, IN VIEW OF THE LEGISLATIVE HISTORY,
THAT CONGRESS HAD EACH OF THESE ENDS IN VIEW WHEN IT PROVIDED FOR THE
TAX COURT PROCEEDINGS, AS WELL AS FOR ACTION BY THE BOARD PRIOR TO THAT
STAGE.  INDEED THE BOARD WAS CREATED IN LARGE PART TO BRING UNDER A
SINGLE AEGIS THE LAST STAGE OF INFORMAL RENEGOTIATION BEFORE THE TAX
COURT ACTION, IN ORDER THUS TO SECURE AS NEARLY AS POSSIBLE UNIFORM
POLICY AND ADMINISTRATION OF RENEGOTIATION PROBLEMS.  FN26 THIS POLICY
WAS FOLLOWED AND REINFORCED IN THE PROVISION FOR TAX COURT
REDETERMINATION.  AND THAT PROCEDURE WAS CHOSEN DELIBERATELY IN
PREFERENCE TO JUDICIAL REVIEW IN THE COURT OF CLAIMS OR ELSEWHERE,
PRIMARILY BECAUSE OF THE TAX COURT'S  FN27  EXPERTNESS IN FISCAL
MATTERS ANALOGOUS TO THOSE ARISING IN CONNECTION WITH RENEGOTIATION
PROBLEMS,  FN28  AS WELL AS ITS ESSENTIALLY JUDICIAL PROCEDURES AND
EXPERIENCE.  FN29 

IT IS EQUALLY CLEAR THAT CONGRESS INTENDED TO ENDOW THE TAX COURT'S
DECISIONS WITH A VERY LARGE DEGREE OF FINALITY, AS APPEARS FROM THE
VERY TERMS OF SEC. 403(E)(1), FROM THE WHOLE STRUCTURE OF THE ACT, AND
FROM THE LEGISLATIVE HISTORY N30.  THE EXPRESS COMMAND OF SEC.
403(E)(1) IS NOT SIMPLY THAT THE TAX COURT SHALL HAVE "EXCLUSIVE
JURISDICTION, BY ORDER, TO FINALLY DETERMINE" THE AMOUNT OF EXCESSIVE
PROFITS, IF ANY.  IT IS ALSO THAT THE DETERMINATION "SHALL NOT BE
REVIEWED OR REDETERMINED BY ANY COURT OR AGENCY."  THIS IS BUTTRESSED
BY THE PROHIBITION THAT FILING THE PETITION SHALL NOT OPERATE TO STAY
EXECUTION OF THE BOARD'S ORDER UNDER SEC. 403(C)(2).  FN31  AND NOT
IRRELEVANT TO THE STATUTE'S GENERAL POLICY OF FINALITY ARE THE
PROVISIONS MAKING THE BOARD'S DETERMINATIONS FINAL, IF THE PETITION FOR
TAX COURT REDETERMINATION IS NOT FILED IN THE SPECIFIED TIME, AND THOSE
OF THE SECRETARY OR HIS DELEGATES FINAL IF SIMILAR ACTION IS NOT TAKEN
TO SECURE REDETERMINATION BY THE BOARD.  SEC. 403(C)(1). 

TRUE, THE STATUTE EXPRESSLY CONFERS RIGHTS TO FOLLOW THROUGH THE
VARIOUS STAGES OF THE PROCEDURE TO THE END OF THE TAX COURT PHASE. 
NEVERTHELESS ITS ENTIRE STRUCTURE INDICATES THE CONGRESSIONAL PURPOSE
TO HAVE MATTERS OF RENEGOTIATION PROMPTLY AND EXPEDITIOUSLY SETTLED;
AND TO ACCOMPLISH THIS AS FAR AS POSSIBLE BOTH BY INFORMAL NEGOTIATIONS
AND BY INTRODUCING THE COMPULSION OF FINALITY AT EVERY STAGE UNLESS
EACH SUCCEEDING ONE IS TAKEN AS COMMANDED. 

AT THE HEIGHT OF THE WAR CONGRESS RECOGNIZED, AS DID THE PROCURING
AGENCIES,  FN32  THAT SPEED IN PROCUREMENT, AND CONSEQUENTLY IN
PRODUCTION OF WAR MATERIALS, OUTWEIGHED ALL OTHER CONSIDERATIONS
NORMALLY APPLICABLE.  AND WHILE RENEGOTIATION WAS A PRODUCT OF THAT
NECESSITY RATHER THAN A CAUSE, THE PROBLEMS IT RAISED WERE TIME
CONSUMING AND CLOSELY RELATED TO PRICING DIFFICULTIES.  FN33  OFTEN
THEY WORKED TO HINDER AND DELAY THE PROCESS OF PROCUREMENT.  CONGRESS
THEREFORE SOUGHT, SO FAR AS POSSIBLE, TO RELIEVE THE INTERRELATED
PROCESSES FROM THE TEDIOUS BURDEN OF LITIGATION.  IT DID THIS BY
WRITING THE POLICY OF FINALITY INTO THE ACT'S PROVISIONS AT EACH
SUCCESSIVE PROCEDURAL STAGE, ALTHOUGH SAVING THE RIGHT OF RESORT
EVENTUALLY TO THE TAX COURT TO THOSE ACTING PROMPTLY IN THE PRESCRIBED
WAY. 

WE DO NOT EXPRESS ANY OPINION, INDEED WE EXPLICITLY RESERVE DECISION,
UPON THE QUESTION OF THE FINALITY OF TAX COURT DECISIONS IN THESE
MATTERS.  BUT WE CANNOT INFER FROM A STATUTE SO CONDITIONED IN
BACKGROUND, PURPOSE, TERMS AND COMPULSION DERIVED FROM THE INEVITABLE
CIRCUMSTANCES OF ITS APPLICATION THAT CONGRESS INTENDED TO ALLOW
SKIRTING THE PROCEDURES DEVISED ALTOGETHER OR PARTIALLY, MORE
PARTICULARLY IN ANY CASE WHERE FOLLOWING THEM COULD RESULT IN NO
GREATER LOSS THAN THE DELAY AND INCONVENIENCE WHICH WOULD FLOW FROM
INABILITY TO SEEK SOME OTHER REMEDY NOT DEPENDENT UPON THEIR
COMPLETION. 

WE ARE NOT FORCED IN THIS CASE, HOWEVER, TO DECIDE WHETHER CONGRESS
INTENDED TO GIVE THE TAX COURT THE LAST WORD UPON ALL QUESTIONS OF FACT
AND LAW, OR WHETHER IT COULD DO SO IF THAT WERE SURELY ITS PURPOSE. 
NOR NEED WE BECOME INVOLVED IN AN ATTEMPT TO DECIDE WHAT PARTICULAR
QUESTIONS IT MIGHT HAVE LEFT, OR DID LEAVE, FOR THAT BODY'S FINAL AND
CONCLUSIVE DISPOSITION.  FOR IT SEEMS OBVIOUS, IN VIEW OF THE ACT'S
TERMS, HISTORY, OBJECTS AND THE POLICIES INCORPORATED, THAT CONGRESS
CLEARLY AND AT THE VERY LEAST INTENDED THE TAX COURT'S FUNCTIONS NOT
ONLY TO BE PUT IN MOTION BUT TO BE FULLY PERFORMED, BEFORE JUDICIAL
INTERVENTION SHOULD TAKE PLACE AT THE INSTANCE OF ONE IN APPELLANT'S
POSITION. 

THIS INDEED WAS THE RULING OF THE WATERMAN CASE.  AND WE DO NOT THINK
THE EFFECT OF THAT RULING IS EXHAUSTED SIMPLY BECAUSE CONSTITUTIONAL
QUESTIONS WERE NOT RAISED THERE, BUT HAVE BEEN PUT FORWARD IN THIS
CAUSE.  NOR IS IT OVERCOME, IN OUR JUDGMENT, BY THE SHOWING WHICH HAS
BEEN MADE ON THIS RECORD OF IRREPARABLE INJURY AND OF THE NEED AS WELL
AS THE POWER OF EQUITY TO FORESTALL THE COMPLETE OPERATION OF THE
CONGRESSIONALLY PRESCRIBED PROCEDURE. 

ON THE CONTRARY, WHATEVER MAY BE TRUE OF OTHER SITUATIONS N34, IN
THIS CASE THE VERY FACT THAT CONSTITUTIONAL ISSUES ARE PUT FORWARD
CONSTITUTES A STRONG REASON FOR NOT ALLOWING THIS SUIT EITHER TO
ANTICIPATE OR TO TAKE THE PLACE OF THE TAX COURT'S FINAL PERFORMANCE OF
ITS FUNCTION.  WHEN THAT HAS BEEN DONE, IT IS POSSIBLE THAT NOTHING
WILL BE LEFT OF APPELLANT'S CLAIM, ASSERTED BOTH IN THAT PROCEEDING AND
IN THIS CAUSE, CONCERNING WHICH IT WILL HAVE BASIS FOR COMPLAINT. 

THE TAX COURT MAY DECIDE ENTIRELY IN APPELLANT'S FAVOR.  INDEED, IF
IT CAN SUSTAIN THERE THE CLAIMS AND ISSUES IT OFFERS TO SUPPORT HERE,
THAT POSSIBILITY IS NOT AN UNLIKELY ONE.  FOR, APART FROM THE QUESTIONS
OF CONSTITUTIONALITY AND OF THE TAX COURT'S POWER TO DECIDE THEM
FINALLY OR OTHERWISE N35, APPELLANT HAS PUT FORWARD, IN BOTH
PROCEEDINGS,  FN36  CLAIMS OF EXEMPTION AND NONCOVERAGE RELATING TO
CONTRACTS INVOLVING MUCH LARGER AMOUNTS THAN THE AGGREGATE SUMS
AFFECTED BY RENEGOTIATION, AFTER DEDUCTION OF TAX CREDITS.  FN37  AND
IF THOSE CLAIMS ARE WELL FOUNDED, AS TO WHICH OF COURSE WE EXPRESS NO
OPINION, THE TAX COURT'S DETERMINATION OF THESE MATTERS OF COVERAGE,
WHICH WE HELD IN THE WATERMAN CASE ARE INITIALLY AT LEAST FOR ITS
DISPOSITION, WELL MIGHT RENDER CONSIDERATION OF THE CONSTITUTIONAL
QUESTIONS BY IT UNNECESSARY AND THIS CAUSE MOOT. 

CERTAINLY THAT POSSIBLE OUTCOME SHOULD NOT BE ANTICIPATED, EITHER
HERE OR BY THE DISTRICT COURT, THROUGH A DECISION IN THIS CASE ON THE
CONSTITUTIONAL ISSUES.  RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549. 
NO MORE SHOULD IT BE FORESTALLED BY DECISION UPON THE MATTERS OF
COVERAGE.  MACAULEY V. WATERMAN S.S. CORP., SUPRA. 

IT IS TRUE THAT THE PRESENCE OF CONSTITUTIONAL QUESTIONS, COUPLED
WITH A SUFFICIENT SHOWING OF INADEQUACY OF PRESCRIBED ADMINISTRATIVE
RELIEF AND OF THREATENED OR IMPENDING IRREPARABLE INJURY FLOWING FROM
DELAY INCIDENT TO FOLLOWING THE PRESCRIBED PROCEDURE, HAS BEEN HELD
SUFFICIENT TO DISPENSE WITH EXHAUSTING THE ADMINISTRATIVE PROCESS
BEFORE INSTITUTING JUDICIAL INTERVENTION.  FN38  BUT, WITHOUT GOING
INTO A DETAILED ANALYSIS OF THE DECISIONS, THIS RULE IS NOT ONE OF MERE
CONVENIENCE OR READY APPLICATION.  WHERE THE INTENT OF CONGRESS IS
CLEAR TO REQUIRE ADMINISTRATIVE DETERMINATION, EITHER TO THE EXCLUSION
OF JUDICIAL ACTION OR IN ADVANCE OF IT, A STRONG SHOWING IS REQUIRED,
BOTH OF INADEQUACY OF THE PRESCRIBED PROCEDURE AND OF IMPENDING HARM,
TO PERMIT SHORT-CIRCUITING THE ADMINISTRATIVE PROCESS.  CONGRESS'
COMMANDS FOR JUDICIAL RESTRAINT IN THIS RESPECT ARE NOT LIGHTLY TO BE
DISREGARDED. 

MORE ESPECIALLY IS THIS TRUE WITH LEGISLATION, OF THIS TYPE, ADOPTED
DURING AND TO MEET THE EMERGENCY OF WAR AND RESTING, AT LEAST IN PART,
UPON WAR POWERS.  FOR, IN SUCH CASES, "ONLY IF WE COULD SAY IN ADVANCE
OF RESORT TO THE STATUTORY PROCEDURE THAT IT IS INCAPABLE OF AFFORDING
DUE PROCESS TO PETITIONERS COULD WE CONCLUDE THAT THEY HAVE SHOWN ANY
LEGAL EXCUSE FOR THEIR FAILURE TO RESORT TO IT OR THAT THEIR
CONSTITUTIONAL RIGHTS HAVE BEEN OR WILL BE INFRINGED," YAKUS V. UNITED
STATES, 321 U.S. 414, 435, A STATEMENT IMPLICITLY REQUIRING EXHAUSTION,
NOT MERELY INITIATION, OF THE STATUTORY PROCEDURE.    WE NEED NOT
DECIDE IN THIS CASE, HOWEVER, WHETHER MERE DOUBT CONCERNING THE
ADEQUACY OF ADMINISTRATIVE OR OTHER RELIEF WOULD BE SUFFICIENT FOR
ALLOWING ANTICIPATION OF THE ADMINISTRATIVE DETERMINATION.  FOR THAT
COURSE IS NOT TO BE FOLLOWED IF THERE IS ANOTHER REMEDY, NOT
INCONSISTENT WITH THE CONGRESSIONAL COMMAND, AND OF CERTAIN CHARACTER,
EVEN THOUGH IT BE NEITHER SO EXPEDITIOUS OR CONVENIENT AS SOME OTHER
SOUGHT TO BE SUBSTITUTED WHICH CIRCUMVENTS THAT COMMAND.  TO THIS OF
COURSE SHOULD BE ADDED THE FURTHER QUALIFICATION THAT FOLLOWING THE
PRESCRIBED REMEDY, UPON THE SHOWING MADE, WILL NOT CERTAINLY OR
PROBABLY RESULT IN THE LOSS OR DESTRUCTION OF SUBSTANTIVE RIGHTS. 
THIS BRINGS US TO CONSIDERATION OF THE SHOWING MADE HERE IN SUPPORT OF
EQUITY'S INTERVENTION.  THAT SHOWING, WE THINK WHEN CONSIDERED IN THE
LIGHT OF THE FOREGOING PRINCIPLES AND OF THE STATUTE'S CLEAR PURPOSE
AND INTENT, IS NOT SUFFICIENT. 

WHATEVER MAY BE THE SCOPE ALLOWED GENERALLY FOR EQUITY TO INTERVENE
UPON THE GROUND OF INADEQUACY OF LEGAL REMEDIES, WHERE NO EXPLICIT
CONGRESSIONAL COMMAND EXISTS FOR FOLLOWING A PRESCRIBED PROCEDURE, THE
PROBLEM WHEN SUCH A MANDATE IS PRESENT IS ENTIRELY DIFFERENT FROM ONE
TENDERED IN ITS ABSENCE.  THE VERY FACT THAT CONGRESS HAS MADE THE
DIRECTION MUST BE CAST INTO THE SCALES AS AGAINST THE FACTORS WHICH,
WITHOUT THAT FACT, WOULD OR MIGHT BE OF SUFFICIENT WEIGHT TO TURN THE
BALANCE IN FAVOR OF ALLOWING UTILIZATION OF EQUITY'S RESOURCES.  THAT
FACT ITSELF MAY BE OF SUCH WEIGHT AS TO TURN THE SCALES THE OTHER WAY,
EVEN IN SITUATIONS MUCH MORE DOUBTFUL THAN THE PRESENT ONE.  IN SHORT,
THE SO-CALLED GENERAL PRINCIPLES GOVERNING THE EXERCISE OF JURISDICTION
IN EQUITY ARE NOT TO BE TAKEN, IN SUCH A CASE, AS ISOLATED FROM ALL
EFFECT OF THE LEGISLATIVE MANDATE OR NECESSARILY OR EVEN READILY AS
OVERRIDING IT. 

IN THE FIRST PLACE, THERE CAN BE NO DOUBT OF THE AVAILABILITY OR
INDEED OF THE CERTAINTY AND EFFECTIVENESS OF APPELLANT'S REMEDY AT LAW
BY SUIT UPON ITS CONTRACTS AGAINST ITS CUSTOMERS CLAIMED TO OWE IT
MONEY UNDER THOSE AGREEMENTS.  SUITS OF THAT CHARACTER ARE NOT
FORBIDDEN, EITHER EXPRESSLY OR IMPLIEDLY BY THE RENEGOTIATION ACTS. 
NOR ARE THEY MADE DEPENDENT UPON COMPLETION OF THE TAX COURT
PROCEEDINGS.  FN39  MOREOVER WE KNOW OF NO REASON WHY EVERY QUESTION OF
CONSTITUTIONALITY WHICH HAS BEEN RAISED IN THIS SUIT COULD NOT BE
PRESENTED AND DETERMINED IN SUCH A SUIT. 

IN ADDITION, THERE IS SPECIAL REASON IN THE STATUTORY PROVISIONS WHY
THAT COURSE SHOULD BE FOLLOWED RATHER THAN ALLOWING THE PRESENT SUIT. 
APPELLANT IS, AS WE HAVE POINTED OUT, A SUBCONTRACTOR, NOT A CONTRACTOR
WITH THE GOVERNMENT.  WHILE ITS SUIT COULD BE INSTITUTED DIRECTLY ONLY
AGAINST THE CONTRACTOR WITH WHOM IT HAD DEALT, NEVERTHELESS IT IS
HARDLY CONCEIVABLE THAT THE GOVERNMENT WOULD PERMIT THE SUIT TO GO TO
FINAL JUDGMENT WITHOUT INTERVENTION BY IT OR, AT THE LEAST, UNDERTAKING
THE RESPONSIBILITY FOR MAKING THE DEFENSE.  FOR BY SEC. 403(C)(2)  FN40
IT IS EXPRESSLY PROVIDED:  "EACH CONTRACTOR AND SUBCONTRACTOR IS
HEREBY INDEMNIFIED BY THE UNITED STATES AGAINST ALL CLAIMS BY ANY
SUBCONTRACTOR ON ACCOUNT OF AMOUNTS WITHHELD FROM SUCH SUBCONTRACTOR
PURSUANT TO THIS PARAGRAPH." 

IN THE FACE OF THIS INDEMNITY, THE CONTRACTOR BECOMES SUBSTANTIALLY A
STAKEHOLDER AS BETWEEN THE GOVERNMENT AND THE SUBCONTRACTOR, AND THE
LATTER'S SUIT AGAINST THE CONTRACTOR, IF TERMINATED FAVORABLY TO THE
COMPLAINANT, WOULD OBLIGATE THE GOVERNMENT TO INDEMNIFY OR REIMBURSE
THE CONTRACTOR FOR THE LIABILITY THUS INCURRED.  IN EFFECT, THE
GOVERNMENT HAS CONSENTED TO SUIT BY THE CONTRACTOR IN THE COURT OF
CLAIMS ON ACCOUNT OF ANY LIABILITY THE CONTRACTOR INCURS BY VIRTUE OF
LAWFUL PAYMENT OF THE SUBCONTRACTOR'S CLAIMS. 

ACCORDINGLY, THERE WOULD SEEM TO BE NO SUBSTANTIAL REASON FOR
REGARDING THE SUIT AGAINST THE CONTRACTOR AS INHERENTLY INADEQUATE OR
INEFFECTIVE FOR THE PROTECTION OF ANY RIGHTS OF THE APPELLANT,
INCLUDING CONSTITUTIONAL ONES.  IN THIS RESPECT THE CASE STANDA
IDENTICALLY WITH COFFMAN V. BREEZE CORPORATIONS, SUPRA.  FN41  IF ANY
SUCH INADEQUACY EXISTS, IT MUST BE BY VIRTUE OF FACTORS EXTRANEOUS TO
THE NATURE OF THE SUIT ITSELF AND NOT PRESENT IN THE COFFMAN CASE. 

THESE APPELLANT SEEKS TO ESTABLISH IN ITS SHOWING RELATING TO
MULTIPLICITY OF SUITS AND IRREPARABLE INJURY.  APART FROM MULTIPLICITY,
THE SHOWING CONCERNING INJURY CERTAINLY WOULD NOT BE SUFFICIENT TO
JUSTIFY ELIMINATING THE TAX COURT PROCEEDING.  FN42  BOILED DOWN, THE
ALLEGATIONS COME TO APPELLANT'S ASSUMING, FOR THE PERIOD NECESSARY TO
SECURE EITHER THE TAX COURT'S DECISION OR FINAL JUDGMENT IN SUITS
AGAINST ITS CUSTOMERS DIRECTED TO WITHHOLD, THE CONTINUED RISK OF THEIR
SOLVENCY, WITHOUT SPECIFIC ALLEGATION THAT ANY OF THEM IS SERIOUSLY SO
THREATENED OR FACTS TO SUPPORT SUCH A CLAIM; AND TO DEPRIVATION, FOR
THE SAME PERIOD, OF THE USE OF $270,000 DIRECTED TO BE WITHHELD.  FN43
WE DO NOT THINK THIS SHOWING ALONE, WITHOUT REGARD TO MULTIPLICITY,
APPROACHES WHAT WOULD BE REQUIRED TO SUSTAIN THE INTERVENTION OF A
COURT OF EQUITY, PARTICULARLY IN ORDER TO AVOID OR ANTICIPATE THE
CONGRESSIONALLY AUTHORIZED PROCEEDING. 

NOR, IN THE FACTS OF THIS CASE, IS THE SHOWING MADE CONCERNING
MULTIPLICITY OF SUITS SUFFICIENT FOR THAT PURPOSE.  APPELLANT'S CASE AS
MADE IN THIS FEATURE IS THAT IT WOULD BE FORCED TO SUE SOME SIXTEEN "OR
MORE" CUSTOMERS, IN VARIOUS AND SCATTERED JURISDICTIONS, WITH
CONSEQUENT EXPENSE OF LITIGATION AND "RESULTANT ILL-FEELING AND
IRREPARABLE INJURY" TO GOOD WILL AND APPELLANT'S BUSINESS.  ON THE
OTHER HAND STANDS THE AFFIDAVIT OF APPELLEE HIRSCH THAT DIRECTION FOR
WITHHOLDING AND PAYMENT INTO THE TREASURY WILL NOT BE NEEDED OR GIVEN
IN MORE THAN TWO OR THREE INSTANCES, AND IN CASE ANY BALANCE SHOULD
REMAIN IT WILL BE COLLECTED THROUGH SUIT INSTITUTED BY THE GOVERNMENT. 

WHETHER THE DISTRICT COURT ACCEPTED ONE VERSION OF THE FACTS OR THE
OTHER, IT FOUND THERE WAS NO SUFFICIENT BASIS IN THE CLAIM OF
MULTIPLICITY TO SUSTAIN EQUITY'S ASSUMPTION OF JURISDICTION.  WE WOULD
NOT BE DISPOSED TO OVERRIDE THAT JUDGMENT OF THE TRIAL COURT, TURNING
AS MUCH AS IT MAY UPON QUESTIONS OF FACT.  FN44 

MOREOVER, IT IS NOT APPARENT, AT ANY RATE FROM THE ALLEGATIONS, WHY
IT WOULD BE NECESSARY FOR APPELLANT TO SUE ALL OF THE SIXTEEN CUSTOMERS
OR INDEED PERHAPS MORE THAN ONE OF THEM IN ORDER TO SECURE A
DETERMINATION OF ITS CONSTITUTIONAL RIGHTS OR PRESERVE ITS RIGHTS.  A
SINGLE TEST SUIT WOULD SERVE THE FORMER PURPOSE FULLY, AND THERE ARE NO
ALLEGATIONS OF FACT SUFFICIENT TO SHOW THAT APPELLANT'S RIGHTS OF
RECOURSE AGAINST OTHERS PROBABLY WOULD BE LOST BY AWAITING THE OUTCOME
OF SUCH A SUIT, EITHER LEGALLY THROUGH THE OPERATION OF STATUTES OF
LIMITATIONS OR PRACTICALLY, AS WE HAVE SAID, THROUGH ANY PROBABLE
INCIDENCE OF INSOLVENCY. 

IN THE ABSENCE OF EITHER KIND OF SHOWING, THE INJURY APPELLANT SEEKS
TO AVOID BY THE ARGUMENT OF MULTIPLICITY ACTUALLY COMES DOWN, AS WE
HAVE SAID, TO DEPRIVATION OF THE USE OF THE AMOUNT WITHHELD FOR THE
PERIOD REQUIRED FOR COMPLETION OF THE TAX COURT PROCEEDINGS OR A TEST
SUIT AGAINST A CUSTOMER.  WHETHER OR NOT THERE WILL BE ANY INJURY IN
THIS LIMITED RESPECT DEPENDS OF COURSE, FIRST, ON THE OUTCOME OF THE
TAX COURT PROCEEDINGS, PARTICULARLY IN RELATION TO THE MATTERS OF
COVERAGE; SECOND, ON WHETHER, UPON THE ASSUMPTION THAT THOSE
PROCEEDINGS SUSTAIN THE GOVERNMENT'S CLAIM AS TO ALL OR PART OF THE
$270,000, THE AMOUNT THUS FOUND DUE IS FINALLY HELD, IN AUTHORIZED
LITIGATION, TO BE DUE AND OWING TO THE APPELLANT OR TO THE GOVERNMENT. 
AND, AS WE HAVE ALSO SAID, IF THAT RESULT SHOULD FAVOR THE APPELLANT,
THE GOVERNMENT'S OBLIGATION TO INDEMNIFY THE CONTRACTOR WOULD BE, IN
EFFECT, INDIRECTLY AVAILABLE TO APPELLANT TO INDEMNIFY IT FOR ANY LOSS
OF THE USE OF THE MONEYS WITHHELD.  FN45 

WHATEVER MIGHT BE TRUE IN OTHER CIRCUMSTANCES, THIS SHOWING AS TO THE
NECESSITY FOR SUING MANY CUSTOMERS IS HARDLY SUFFICIENT TO JUSTIFY THE
SUBSTITUTION OF EQUITY'S EXTRAORDINARY RELIEF FOR WHAT IN ALL THE
CONDITIONS OF THIS CASE APPEARS TO BE A FULL, ADEQUATE AND COMPLETELY
AVAILABLE REMEDY AT LAW.  COFFMAN V. BREEZE CORPORATIONS, SUPRA;
MACAULEY V. WATERMAN S.S. CORP., SUPRA. 

INDEED THE ARGUMENT OF MULTIPLICITY, WITH OTHERS, WAS EXPRESSLY
ADVANCED AND REJECTED IN THE WATERMAN CASE, AS GROUND FOR NOT APPLYING
THE MYERS RULE AND FOR SUSTAINING DECLARATORY AND EQUITABLE
INTERVENTION TO CIRCUMVENT IT.  AFTER NOTING THE COMPANY'S CLAIM, WITH
OTHERS, THAT "IT WOULD BE SUBJECTED TO A MULTIPLICITY OF SUITS IN ORDER
TO RECOVER THE MONEY DUE ON THE CONTRACTS," WE THERE SAID:  "EVEN IF
ONE OR ALL OF THESE THINGS MIGHT POSSIBLY OCCUR IN THE FUTURE, THAT
POSSIBILITY DOES NOT AFFECT THE APPLICATION OF THE RULE REQUIRING
EXHAUSTION OF ADMINISTRATIVE REMEDIES.  THE DISTRICT COURT HAD NO POWER
TO DETERMINE IN THIS PROCEEDING AND AT THIS TIME ISSUES THAT MIGHT
ARISE BECAUSE OF THESE FUTURE CONTINGENCIES."  327 U.S. AT 545. 

THIS CASE IS PERHAPS EVEN STRONGER THAN THE WATERMAN CASE FOR
APPLICATION OF THE MYERS RULE.  FOR HERE THE APPELLANT IS A
SUBCONTRACTOR RETAINING WHAT THE CONTRACTOR COMPLAINANT DID NOT HAVE IN
THE WATERMAN CASE, NAMELY, A COMPLETELY ADEQUATE REMEDY AT LAW AGAINST
ITS CUSTOMERS, BUTTRESSED BY THE GOVERNMENT'S GUARANTY OF INDEMNITY TO
THE CONTRACTOR FOR ALL LIABILITY INCURRED BY HIM ON ACCOUNT OF
WITHHOLDING FUNDS ALLEGEDLY DUE THE APPELLANT. 

IN VIEW OF THAT FACT THE FURTHER ONE THAT CONSTITUTIONAL ISSUES ARE
INCLUDED AMONG THOSE TENDERED IN THIS CASE BUT WERE NOT PRESENTED IN
THE WATERMAN CASE, BECOMES WHOLLY IMMATERIAL.  TO COUNTENANCE SHORT
CIRCUITING OF THE TAX COURT PROCEEDINGS HERE WOULD BE, UNDER ALL THE
CIRCUMSTANCES BUT MORE ESPECIALLY IN VIEW OF CONGRESS' POLICY AND
COMMAND WITH RESPECT TO THOSE PROCEEDINGS, A LONG OVERREACHING OF
EQUITY'S STRONG ARM. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE FIRST RENEGOTIATION ACT WAS CONTAINED IN SEC. 403 OF THE
SIXTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 56 STAT. 226, AS
AMENDED 56 STAT. 798, 982, 57 STAT. 347, 57 STAT. 564.  THE SECOND
RENEGOTIATION ACT APPEARS IN THE 1943 REVENUE ACT.  58 STAT. 21, 78, AS
AMENDED 59 STAT. 294. 

FN2  OF OCTOBER 31, 1942, 56 STAT. 1013, 35 U.S.C. (SUPP. V, 1946)
SECS. 89-96. 

FN3  SEE NOTE 1. 

FN4 THE WAR CONTRACTS PRICE ADJUSTMENT BOARD IS CREATED BY SEC.
403(D)(1) OF THE SECOND RENEGOTIATION ACT, 50 U.S.C. APP. (SUPP. V,
1946) SEC. 1191(D)(1).  THE PRESENT APPELLEES WERE SUBSTITUTED BY AN
ORDER OF THE DISTRICT COURT AS SUCCESSORS IN OFFICE OF THE ORIGINAL
DEFENDANTS. 

FN5  62 F.SUPP.  520. 

FN6  SEE NOTE 9.  THE TAX COURT PROCEEDINGS REMAIN PENDING AND
UNDETERMINED AT THE DATE OF THIS DECISION. 

FN7  ON APPELLANT'S APPLICATION THE DISTRICT COURT ENJOINED THE
DEFENDANTS, PENDING DETERMINATION OF THE APPEAL, FROM TAKING FURTHER
ACTION TO ENFORCE THE STATUTES, PARTICULARLY BY NOTIFYING OR REQUIRING
APPELLANT'S CUSTOMERS TO PAY INTO THE TREASURY OF THE UNITED STATES
MONEYS ALLEGED TO BE DUE AIRCRAFT UNDER CONTRACT PROVISIONS, BUT
CLAIMED BY APPELLEES TO BE PAYABLE TO THE GOVERNMENT AS EXCESSIVE
PROFITS PURSUANT TO THE ACTS' TERMS.  CF. NOTES 10, 13 INFRA. 

FN8  THE AMENDED COMPLAINT ALLEGES THAT APPELLANT SUPPLIED MATERIALS
TO THE DEPARTMENT OF THE NAVY UNDER ONE CONTRACT MADE DIRECTLY BETWEEN
IT AND THE GOVERNMENT.  BUT IT IS ALSO ALLEGED THAT APPELLANT HAS BEEN
PAID IN FULL FOR THESE SUPPLIES.  APPARENTLY, THEREFORE, THE CONTRACT
AND THE RELATION WHICH IT CREATED BETWEEN APPELLANT AND THE GOVERNMENT
HAVE NO BEARING UPON THE ISSUES IN THIS CAUSE. 

FN9  THE FIRST RENEGOTIATION ACT DID NOT PROVIDE FOR REDETERMINATION
BY THE TAX COURT AS ORIGINALLY ENACTED; NOR DID IT SPECIFICALLY PROVIDE
FOR REVIEW, BY ANY BODY, OF THE DETERMINATION OF EXCESSIVE PROFITS. 
SEE STEADMAN, A FURTHER LEGAL INQUIRY INTO RENEGOTIATION:  I (1944) 43
MICH. L. REV. 1, 12.  BUT TAX COURT REDETERMINATION WAS AFFORDED BY THE
SECOND RENEGOTIATION ACT AND WAS MADE RETROACTIVE.  50 U.S.C. APP.
(SUPP. V, 1946) SEC. 1191(E)(2) PROVIDES THAT IT IS AVAILABLE TO "ANY
CONTRACTOR OR SUBCONTRACTOR  ...  AGGRIEVED BY A DETERMINATION OF THE
SECRETARY MADE PRIOR TO THE DATE OF ENACTMENT OF THE REVENUE ACT OF
1943, WITH RESPECT TO A FISCAL YEAR ENDING BEFORE JULY 1, 1943, AS TO
THE EXISTENCE OF EXCESS PROFITS  ...  " 

FN10  THE ORIGINAL ACT, AS AMENDED, PROVIDED:  "UPON RENEGOTIATION,
THE SECRETARY IS AUTHORIZED AND DIRECTED TO ELIMINATE ANY EXCESSIVE
PROFITS UNDER SUCH CONTRACT OR SUBCONTRACT  ...  (III) BY DIRECTING A
CONTRACTOR TO WITHHOLD FOR THE ACCOUNT OF THE UNITED STATES, FROM
AMOUNTS OTHERWISE DUE TO THE SUBCONTRACTOR, ANY AMOUNT OF SUCH
EXCESSIVE PROFITS UNDER THE SUBCONTRACT  ...  " 56 STAT. AT 983.  SEE
ALSO NOTE 13. 

FN11  AN EARLIER PETITION WAS DISMISSED ON MOTION OF THE UNITED
STATES BECAUSE IT WAS FILED DURING THE TIME WHEN THE WAR CONTRACTS
PRICE ADJUSTMENT BOARD MIGHT HAVE INITIATED A REVIEW.  CF. MACAULEY V.
WATERMAN S.S. CORP., 327 U.S. 540.  AFTER DISMISSAL OF THE EARLIER
PETITION AND BEFORE FILING OF THE LATER ONE, APPELLANT HAD SOUGHT
REDETERMINATION, PURSUANT TO SEC. 403(E)(1) OF THE SECOND RENEGOTIATION
ACT, BY THE WAR CONTRACTS PRICE ADJUSTMENT BOARD.  THE BOARD DENIED
REVIEW AND ADOPTED THE UNDER SECRETARY'S REDETERMINATION AS ITS OWN. 

FN12  FOR EXAMPLE, IN ADDITION TO CONTENTIONS THAT THE RENEGOTIATION
ACTS AS A MATTER OF SUBSTANTIVE LAW VIOLATE ARTICLE I, SEC. 1, OF THE
CONSTITUTION IN THAT THEY CONSTITUTE UNLAWFUL DELEGATIONS OF
LEGISLATIVE POWER AS WELL AS CONTRAVENE THE DUE PROCESS AND JUST
COMPENSATION PROVISIONS OF THE FIFTH AMENDMENT, THE JURY TRIAL
PROVISION OF THE SEVENTH AMENDMENT, AND THE TENTH AMENDMENT, IT IS SAID
THAT THE ORDER UNDER THE SECOND RENEGOTIATION ACT WAS BASED IN PART AT
LEAST ON INFORMATION SAID TO HAVE BEEN OBTAINED FROM "GOVERNMENTAL AND
OTHER RELIABLE SOURCES" WHICH THE APPELLANT HAS HAD NO OPPORTUNITY TO
EXAMINE OR REBUT.    FN13  SECTION 403(C)(2) OF THE SECOND
RENEGOTIATION ACT, 50 U.S.C. APP. (SUPP. V, 1946) SEC. 1191(C)(2),
PROVIDES:  "UPON THE MAKING OF AN AGREEMENT, OR THE ENTRY OF AN ORDER,
UNDER PARAGRAPH (1) BY THE BOARD, OR THE ENTRY OF AN ORDER UNDER
SUBSECTION (E) BY THE TAX COURT OF THE UNITED STATES, DETERMINING
EXCESSIVE PROFITS, THE BOARD SHALL FORTHWITH AUTHORIZE AND DIRECT THE
SECRETARIES OR ANY OF THEM TO ELIMINATE SUCH EXCESSIVE PROFITS (A) BY
REDUCTIONS IN THE AMOUNTS OTHERWISE PAYABLE TO THE CONTRACTOR UNDER
CONTRACTS WITH THE DEPARTMENTS, OR BY OTHER REVISION OF THEIR TERMS; OR
(B) BY WITHHOLDING FROM AMOUNTS OTHERWISE DUE TO THE CONTRACTOR ANY
AMOUNT OF SUCH EXCESSIVE PROFITS; OR (C) BY DIRECTING A CONTRACTOR TO
WITHHOLD FOR THE ACCOUNT OF THE UNITED STATES, FROM AMOUNTS OTHERWISE
DUE TO A SUBCONTRACTOR, ANY AMOUNT OF SUCH EXCESSIVE PROFITS OF SUCH
SUBCONTRACTOR; OR (D) BY RECOVERY FROM THE CONTRACTOR, THROUGH
REPAYMENT, CREDIT, OR SUIT ANY AMOUNT OF SUCH EXCESSIVE PROFITS
ACTUALLY PAID TO HIM; OR (E) BY ANY COMBINATION OF THESE METHODS, AS IS
DEEMED DESIRABLE.  ...  " 

FN14  THE ALLEGATIONS INCLUDED THE FOLLOWING:  "NOTWITHSTANDING THE
FACT THAT THE PLAINTIFF HAS FILED ITS PETITION FOR REDETERMINATION IN
THE TAX COURT OF THE UNITED STATES WHEREBY IT SEEKS AN ORDERLY
DETERMINATION OF THE AMOUNT, IF ANY, IT MAY OWE TO THE UNITED STATES OF
AMERICA, AS EXCESSIVE PROFITS FOR ITS FISCAL YEAR ENDING NOVEMBER 30,
1943, THE WAR CONTRACTS PRICE ADJUSTMENT BOARD, PURPORTING TO ACT UNDER
THE PROVISIONS OF SECTION 403(C)(2) OF THE RENEGOTIATION ACT, PURPOSES
TO DIRECT THE DEFENDANT HENRY L. STIMSON, SECRETARY OF WAR, OR HIS
DELEGATES, TO DIRECT CONTRACTORS, CUSTOMERS OF THE PLAINTIFF, TO
WITHHOLD MONEYS DUE TO THE PLAINTIFF BY SUCH CONTRACTORS FOR THE
ACCOUNT OF THE UNITED STATES, IN AMOUNTS DETERMINED BY IT, THE WAR
CONTRACTS PRICE ADJUSTMENT BOARD, TO BE DUE AS EXCESSIVE PROFITS, AND
HENRY L. STIMSON, SECRETARY OF WAR, OR HIS DELEGATES PURPOSES TO FOLLOW
SUCH DIRECTIONS OF THE WAR CONTRACTS PRICE ADJUSTMENT BOARD AND FURTHER
TO DIRECT SUCH CONTRACTORS TO PAY SUCH SUMS OF MONEY INTO THE TREASURY
OF THE UNITED STATES, IN ACCORDANCE WITH THE PROCEDURE ADOPTED BY HENRY
L. STIMSON, SECRETARY OF WAR, ACTING THROUGH HIS DELEGATE, ROBERT P.
PATTERSON, IN RESPECT OF EXCESSIVE PROFITS FOUND BY HIM TO BE DUE FOR
THE FISCAL YEAR OF THE PLAINTIFF ENDING NOVEMBER 30, 1942, AS
HERETOFORE, RECITED IN THIS COMPLAINT, BEFORE THE TAX COURT OF THE
UNITED STATES OF AMERICA SHALL HAVE MADE OR SHALL HAVE HAD OPPORTUNITY
TO MAKE ANY DETERMINATION OF THIS PLAINTIFF'S PETITION FOR A
REDETERMINATION OF ITS EXCESSIVE PROFITS, IF ANY, FOR ITS FISCAL YEAR
ENDING 1943."  SEE ALSO NOTE 42. 

FN15  THE OMISSION FROM THE FIRST ACT OF VARIOUS PROVISIONS CONTAINED
IN THE SECOND, SEE, E.G., NOTE 9 SUPRA, IS ALLEGED TO AFFORD BASIS FOR
INVALIDATING THE FORMER EVEN THOUGH THE LATTER MAY BE HELD
CONSTITUTIONAL. 

FN16  SEE NOTE 42 INFRA. 

FN17  ALTHOUGH ASSERTED BY WAY OF EQUITABLE SETOFF, THE EFFECT OF
ALLOWING SUCH A CLAIM WOULD BE, AS WE SAID IN THE MINE SAFETY CASE, TO
PREVENT THE SECRETARY FROM TAKING CERTAIN ACTION WHICH, THOUGH IT WOULD
NOT "STOP PAYMENT BY THE GOVERNMENT OF MONEY LAWFULLY IN THE UNITED
STATES TREASURY TO SATISFY THE GOVERNMENT'S AND NOT THE SECRETARY'S
DEBT TO THE APPELLANT," NEVERTHELESS WOULD AMOUNT TO "AN INDIRECT
EFFORT TO COLLECT A DEBT ALLEGEDLY OWED BY THE GOVERNMENT IN A
PROCEEDING TO WHICH THE GOVERNMENT HAS NOT CONSENTED," 326 U.S. 374,
375, AND TO WHICH, AS IN THAT CASE, IT HAS NOT BEEN MADE FORMALLY A
PARTY. 

FN18  ESPECIALLY LOUISIANA V. MCADOO, 234 U.S. 627; BELKNAP V.
SCHILD, 161 U.S. 10; IN RE AYERS, 123 U.S. 443. 

FN19  APPELLANT'S CLAIM IS THAT ORDERING ITS CUSTOMERS NOT ONLY TO
WITHHOLD FUNDS DUE TO IT UNDER THE CONTRACTS BUT ALSO TO PAY THEM INTO
THE TREASURY WOULD BE, IN EFFECT, A "TRESPASS UPON ITS PROPERTY" WITHIN
THE RULE OF UNITED STATES V. LEE, 106 U.S. 196; CF. LAND V. DOLLAR, 330
U.S. 731, AND THAT EXECUTION OF SUCH ORDERS WOULD DEPRIVE IT OF VESTED
PROPERTY RIGHTS, CONTRARY TO VARIOUS CONSTITUTIONAL PROVISIONS.  SINCE
A DECISION OF THE CONSTITUTIONAL ISSUES WOULD DETERMINE THE
GOVERNMENT'S RIGHT TO THE FUNDS, IN ANY EVENT, THE CASE, LIKE LAND V.
DOLLAR, SUPRA, WOULD SEEM TO BE ONE "WHERE THE QUESTION OF JURISDICTION
(AS INVOLVING THE GOVERNMENT'S IMMUNITY TO SUIT) IS DEPENDENT ON
DECISION OF THE MERITS."  330 U.S. AT 735. 

ORDINARILY OF COURSE ISSUES RELATING TO EXHAUSTION OF ADMINISTRATIVE
REMEDIES, AS A CONDITION PRECEDENT TO SECURING JUDICIAL RELIEF, AND TO
THE EXISTENCE OF JURISDICTION IN EQUITY ARE EITHER SEPARATE OR
SEPARABLE MATTERS, TO BE TREATED AS ENTIRELY OR SUBSTANTIALLY
DISTINCT.  THE ONE GENERALLY SPEAKING IS SIMPLY A CONDITION TO BE
PERFORMED PRIOR TO INVOKING AN EXERCISE OF JURISDICTION BY THE COURTS. 
THE OTHER GOES TO THE EXISTENCE OF JUDICIAL POWER IN THE BASIC
JURISDICTIONAL SENSE.  IN THIS CASE, HOWEVER, THE EXHAUSTION PROBLEM
AND THAT OF EQUITY JURISDICTION ARE CLOSELY, INDEED INSEPARABLY,
RELATED.  AND BOTH ARE COLORED BY THE RELEVANT SPECIFIC PROVISIONS OF
THE RENEGOTIATION ACTS, MORE PARTICULARLY THE SECOND, SINCE IT ALONE
PROVIDES FOR TAX COURT REDETERMINATION.  FN20 

FN20  THE PROVISION, HOWEVER, APPLIES TO DETERMINATIONS MADE PRIOR TO
THE ACT'S EFFECTIVE DATE.  SEE NOTE 9 SUPRA. 

FN21  OTHERWISE THE BOARD'S ORDER BECOMES FINAL.  SEC. 403(C)(1). 
THE PROVISION READS:  "IN THE ABSENCE OF THE FILING OF A PETITION WITH
THE TAX COURT OF THE UNITED STATES UNDER THE PROVISIONS OF AND WITHIN
THE TIME LIMIT PRESCRIBED IN SUBSECTION (E)(1), SUCH ORDER SHALL BE
FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO REVIEW OR
REDETERMINATION BY ANY COURT OR OTHER AGENCY." 

SIMILARLY, A LIMITATION OF ONE YEAR IS PLACED UPON "ALL LIABILITIES
OF THE CONTRACTOR OR SUBCONTRACTOR FOR EXCESSIVE PROFITS RECEIVED OR
ACCRUED" DURING EACH FISCAL YEAR.  SEE SEC. 403(C)(3). 

FN22  SEE NOTE 11 SUPRA. 

FN23  CITING, AT 90 CONG. REC. 1355, THE STATEMENT OF A SPONSOR IN
THE HOUSE THAT THE TAX COURT COULD DECIDE "ALL QUESTIONS OF FACT AND
LAW  ...  "  SEE ALSO NOTES 30, 35 INFRA. 

FN24  THE WATERMAN S.S. CORPORATION NOT ONLY HAD FAILED TO FILE A
PETITION WITH THE TAX COURT BUT ALSO HAD REFUSED TO ATTEND
RENEGOTIATION CONFERENCES WITH THE BOARD OR TO SUPPLY INFORMATION
SOUGHT BY IT. 

FN25  SEE NOTE 26 INFRA. 

FN26  SEE 89 CONG. REC. 9928-9929.  PREVIOUSLY THE GOVERNMENTAL
DEPARTMENTS CONCERNED WITH RENEGOTIATION HAD SET UP A CENTRAL BOARD TO
EFFECT A "MORE UNIFORM POLICY IN THE DETERMINATION OF EXCESSIVE
PROFITS," H. REP. 871, 78TH CONG., 1ST SESS., 75, BUT THERE WAS
DISSATISFACTION WITH THE BOARD THUS VOLUNTARILY ESTABLISHED, SEE 89
CONG. REC. 9934, AND "INSISTENCE IN CONGRESS THAT COORDINATION BETWEEN
THE DEPARTMENTS HAVING RENEGOTIATING AUTHORITY UNDER THE PRIOR ACT BE
NOT A MATTER OF VOLUNTARY COOPERATION BUT ONE OF STATUTORY NECESSITY." 
STEADMAN, A FURTHER LEGAL INQUIRY INTO RENEGOTIATION:  I (1944) 43
MICH. L. REV. 1, 6. 

FN27  SEE 53 STAT. 158, AS AMENDED BY 56 STAT. 957, 26 U.S.C. (SUPP.
V, 1946) SEC. 1100:  "THE BOARD OF TAX APPEALS (HEREINAFTER REFERRED TO
AS THE 'BOARD') SHALL BE CONTINUED AS AN INDEPENDENT AGENCY IN THE
EXECUTIVE BRANCH OF THE GOVERNMENT.  THE BOARD SHALL BE KNOWN AS THE
TAX COURT OF THE UNITED STATES AND THE MEMBERS THEREOF SHALL BE KNOWN
AS THE PRESIDING JUDGE AND THE JUDGES OF THE TAX COURT OF THE UNITED
STATES." 

FN28  SEE H. REP. 871, 78TH CONG., 1ST SESS., 77; STEADMAN, A FURTHER
LEGAL INQUIRY INTO RENEGOTIATION:  II (1944) 43 MICH. L. REV. 235, 270;
CF. S. REP. 627, 78TH CONG., 1ST SESS., 109; H. REP. 1079, 78TH CONG.,
2D SESS., 83. 

FN29  DOBSON V. COMMISSIONER, 320 U.S. 489, 498; CF. NOTE 27. 

FN30  "THAT COURT WILL HAVE EXCLUSIVE JURISDICTION, BY AN ORDER, TO
MAKE A FINAL DETERMINATION AS TO WHETHER EXCESSIVE PROFITS HAVE BEEN
RECEIVED OR ACCRUED, OR WHETHER A FAIR PRICE HAS BEEN DETERMINED, AND
THE TAX COURT'S DETERMINATION MAY NOT BE REVIEWED OR REDETERMINED BY
ANY OTHER COURT OR AGENCY."  H. REP. 871, 78TH CONG., 1ST SESS., 77. 
SEE ALSO 89 CONG. REC. 9930:  "THE COMMITTEE HAS PROVIDED THAT ANY
CONTRACTOR AGGRIEVED BY A DETERMINATION OF EXCESSIVE PROFITS UNDER THE
OLD LAW, WHETHER HE WAS COOPERATIVE AND SIGNED A CLOSING AGREEMENT OR
NOT, MAY HAVE A REVIEW OF THAT DETERMINATION IN THE TAX COURT OF THE
UNITED STATES AND IN THE REVIEW HAVE ALL ISSUES, CONSTITUTIONAL AND
OTHERWISE, DECIDED BY THE COURT." 

FN31  SEE NOTE 13 SUPRA. 

FN32  THE RECORD CONTAINS AN AFFIDAVIT MADE BY ROBERT P. PATTERSON
WHEN UNDER SECRETARY OF WAR WHICH READS IN PART:  "WARTIME PROCUREMENT
FOR THE MILITARY ESTABLISHMENT DIFFERS RADICALLY FROM PROCUREMENT IN
TIMES OF PEACE.  SPEED IN PRODUCTION AT ONCE BECOMES ALL-IMPORTANT. 
...  " 

"  ...  THE WAR PROCURING AGENCIES CANNOT USE NORMAL METHODS OF
PROCUREMENT.  THE PRESSING NEED FOR SPEED REQUIRES THE ABANDONMENT OF
DRAWN-OUT NEGOTIATION AND THE CAREFUL SURVEYS OF ALL RELEVANT FACTORS
WHICH SOUND PURCHASING WOULD OTHERWISE REQUIRE.  COMPETITION
NECESSARILY WANES AND NO LONGER OFFERS AN ADEQUATE GUIDE TO THE PRICES
WHICH SHOULD BE PAID.  ABOVE ALL, THE FORECASTING OF COSTS OF
PRODUCTION BECOMES, IN LARGE MEASURE, A MATTER OF INFORMED GUESSING
RATHER THAN OF REAL COST ANALYSIS." 

FN33  THE SECOND RENEGOTIATION ACT SEPARATED THE REPRICING AUTHORITY
FROM RENEGOTIATION.  SEE 58 STAT. 92, 50 U.S.C. APP. (SUPP. V, 1946)
SEC. 1192.  SEE ALSO S. REP. 627, 78TH CONG., 1ST SESS., 37-38. 

FN34  SEE NOTE 38 INFRA. 

FN35  SEE NOTES 23, 30 SUPRA; CF. HELVERING V. INDEPENDENT LIFE INS.
CO., 292 U.S. 371, REVERSING 67 F.2D 470, AFFIRMING 17 B.T.A. 757;
STEIN BROS. MFG. CO. V. SECRETARY OF WAR, 7 T.C. 863. 

FN36  A COPY OF THE PETITION FOR REDETERMINATION FILED IN THE TAX
COURT BY APPELLANT HAS BEEN ATTACHED AS AN EXHIBIT TO THE COMPLAINT. 

FN37  APPELLANT IN ITS COMPLAINT ALLEGED, FOR EXAMPLE, THAT ALTHOUGH
FOR THE FISCAL YEAR ENDING NOVEMBER 30, 1943, ITS TOTAL SALES AMOUNTING
TO $3,548,845.50 WERE RENEGOTIATED, "ONLY $2,207,574.95, IN ANY EVENT,
WERE SUBJECT TO RENEGOTIATION; THAT $1,312,250.07 OF ITS TOTAL SALES
WERE OF 'STANDARD COMMERCIAL ARTICLES' AS DEFINED IN THE RENEGOTIATION
ACT; WERE ARTICLES SOLD UNDER COMPETITIVE CONDITIONS AFFECTING THE SALE
THEREOF IN A MANNER WHICH REASONABLY PROTECTED THE GOVERNMENT AGAINST
EXCESSIVE PRICES, AND, AS SUCH, WERE NOT SUBJECT TO RENEGOTIATION; THAT
$29,020.48 OF ITS TOTAL SALES WERE NOT SOLD FOR THE ULTIMATE USE OF THE
UNITED STATES OF AMERICA OR ANY DEPARTMENT, AGENCY OR INSTRUMENTALITY
THEREOF, BUT WERE MADE AND SOLD FOR CIVILIAN USE, AND, AS SUCH, WERE
NOT SUBJECT TO RENEGOTIATION." 

FN38  THUS, THE COURT HAS PERMITTED RESORT TO A FEDERAL COURT OF
EQUITY WHERE A STATE WAS ENFORCING CONFISCATORY RATES AND BY ITS LAW
PRECLUDED A STAY OR SUPERSEDEAS UNTIL THE STATE COURTS "ACTING IN A
LEGISLATIVE CAPACITY" HAD TAKEN FINAL ACTION.  OKLAHOMA NATURAL GAS CO.
V. RUSSELL, 261 U.S. 290; PACIFIC TEL. & TEL. CO. V. KUYKENDALL, 265
U.S. 196; PORTER V. INVESTORS SYNDICATE, 286 U.S. 461.  FOR OTHER
DECISIONS HOLDING THAT A FEDERAL COURT MAY EXERCISE ITS EQUITABLE
JURISDICTION WHERE THERE IS AN INADEQUATE STATE REMEDY TO CORRECT A
CONSTITUTIONAL WRONG, SEE HILLSBOROUGH V. CROMWELL, 326 U.S. 620;
WALLACE V. HINES, 253 U.S. 66. 

THE RULE HAS BEEN APPLIED MOST FREQUENTLY IN RESPECT TO STATE RATHER
THAN FEDERAL ADMINISTRATIVE ACTION, THOUGH OF COURSE IT IS NOT
INAPPLICABLE TO THE LATTER, NOTWITHSTANDING THE POWER OF CONGRESS TO
REGULATE THE JURISDICTION AND PROCEDURE OF THE FEDERAL COURTS MAY
PRESENT OBSTACLES TO ITS APPLICATION NOT PRESENT IN STATE CASES. 

FN39  IT IS UNNECESSARY TO CONSIDER WHETHER IN SUCH A SUIT A DISTRICT
COURT SHOULD FIND IT PROPER TO DEFER ITS FINAL DECISION UNTIL AFTER THE
TAX COURT HAD MADE ITS FINAL REDETERMINATION, IN ORDER POSSIBLY TO
AVOID THE NECESSITY OF DECIDING THE CONSTITUTIONAL QUESTIONS.  CF.
AMERICAN FEDERATION OF LABOR V. WATSON, 327 U.S. 582, 599, AND CASES
CITED.  FOR, EVEN IN THE EVENT OF SUCH ACTION, THE COURT WOULD HAVE
POWER TO PRESERVE, PENDING THE ADMINISTRATIVE DECISION, THE STATUS QUO
AND ALL RIGHTS OF THE APPELLANT.  THE PROVISION IN SEC. 403(E)(1) THAT
THE FILING OF A PETITION WITH THE TAX COURT "SHALL NOT OPERATE TO STAY
THE EXECUTION OF THE ORDER OF THE (WAR CONTRACTS PRICE ADJUSTMENT)
BOARD" UNDER SEC. 403(C)(2) DOES NOT MEAN THAT THE COURTS ARE DEPRIVED
OF THEIR POWER TO GRANT STAYS WHERE NECESSARY.  "WHERE CONGRESS WISHED
TO DEPRIVE THE COURTS OF THIS HISTORIC POWER, IT KNEW HOW TO USE APT
WORDS  ...  "  SCRIPPS-HOWARD RADIO V. FEDERAL COMMUNICATIONS
COMMISSION, 316 U.S. 4, 17.  IT DID SO IN THE EMERGENCY PRICE CONTROL
ACT OF 1942, 56 STAT. 23; SEE YAKUS V. UNITED STATES, 321 U.S. 414,
429, 437, USING VERY EXPLICIT LANGUAGE.  HERE THE PROVISION LITERALLY
AT ANY RATE APPEARS TO MEAN ONLY THAT THERE SHALL BE NO AUTOMATIC STAY
BY VIRTUE OF FILING THE PETITION IN THE TAX COURT. 

FN40  THE PARAGRAPH COVERS WITHHOLDING PAYMENT PURSUANT TO DIRECTION
BY THE BOARD TO THE CONTRACTOR, FOR THE ACCOUNT OF THE UNITED STATES. 
SEE NOTE 13 SUPRA. 

FN41  THE SITUATION OF THE LICENSOR IN THE COFFMAN CASE, WITH
REFERENCE TO THE REMEDY BY SUIT AGAINST ITS LICENSEES WAS EXACTLY THE
SAME AS APPELLANT'S SITUATION HERE IN RESPECT TO SUIT AGAINST ITS
CUSTOMERS, THE CONTRACTORS WITH THE GOVERNMENT.  WE SAID, AS TO THE
ADEQUACY OF THAT REMEDY:  "BUT WHETHER THE PROVISIONS OF THE ACT BE
VALID OR INVALID APPELLANT SHOWS NO GROUND FOR EQUITABLE RELIEF.  IF
VALID THEY WOULD BE A DEFENSE, AND APPELLANT WOULD BE ENTITLED TO NO
RELIEF OTHER THAN THAT AFFORDED BY THE SUIT AGAINST THE GOVERNMENT
AUTHORIZED BY SEC. 2 OF THE ACT.  IF INVALID, APPELLANT'S RIGHT TO
RECOVER REMAINS UNIMPAIRED.  THE SUFFICIENCY OF THE DEFENSE MAY BE AS
READILY TESTED IN A SUIT AT LAW TO RECOVER THE ROYALTIES AS BY THE
PRESENT SUIT IN EQUITY TO ENJOIN PAYMENT OF THE ROYALTIES INTO THE
TREASURY.  IN EITHER CASE APPELLANT WOULD RECEIVE ALL THE RELIEF TO
WHICH IT SHOWS ITSELF ENTITLED."  323 U.S. AT 323.    THE COFFMAN
DECISION STOOD SQUARELY UPON THE GROUNDING OF THE ADEQUACY OF THE
REMEDY BY SUIT AGAINST THE LICENSEES, ALTHOUGH IT RESTED ALSO UPON THE
ALTERNATIVE RULING THAT THERE WAS NO CASE OR CONTROVERSY.  THIS WAS FOR
THE REASON THAT THE APPELLANT ASSERTED NO RIGHT TO RECOVER THE
ROYALTIES, BUT ASKED ONLY A DETERMINATION THAT THE ROYALTY ADJUSTMENT
ACT WAS UNCONSTITUTIONAL "AND, IF SO FOUND, THAT COMPLIANCE WITH THE
ACT BE ENJOINED, AN ISSUE WHICH APPELLEE  ... DECLINES TO CONTEST." 
THIS, WE SAID, MADE THE PRAYER OF THE BILL "BUT A REQUEST FOR AN
ADVISORY OPINION AS TO THE VALIDITY OF A DEFENSE TO A SUIT FOR RECOVERY
OF THE ROYALTIES."  323 U.S. AT 323, 324. 

FN42  IT IS ALLEGED THAT APPELLANT, UNLESS ALLOWED TO MAINTAIN THIS
SUIT, WILL BE CAUSED UNNECESSARILY TO RUN THE RISK OF IMPAIRED CREDIT
OR INSOLVENCY OF CUSTOMERS DIRECTED TO WITHHOLD FUNDS; THAT ITS WORKING
CAPITAL ESSENTIAL TO CARRYING OUT ITS OBLIGATIONS WITH CONTRACTORS AND
SUBCONTRACTORS WOULD BE REDUCED; THAT ITS OPERATIONS "WILL BE HAMPERED
AND ITS BUSINESS IRREPARABLY DAMAGED BY THE REDUCTION OF ITS WORKING
CAPITAL"; AND THAT IT WILL BE FORCED EITHER TO CONTINUE SUPPLYING
CUSTOMERS DIRECTED TO WITHHOLD PAYMENT, IMPAIRING ITS ASSETS AND THE
INTERESTS OF STOCKHOLDERS OR, IN THE ALTERNATIVE, TO REFUSE MAKING SUCH
SHIPMENTS WITH THE ASSERTED CONSEQUENCE OF BEING UNABLE TO CONTINUE IN
BUSINESS, "INASMUCH AS A SUBSTANTIAL PORTION OF ITS MARKET FOR ITS
PRODUCTS PRESENTLY IS PRIME CONTRACTORS WITH THE UNITED STATES AND
SUBCONTRACTORS THEREOF." 

FN43  APPELLANT ALSO ALLEGES THAT IT "COULD NOT RECOVER INTEREST FOR
THE USE OF ITS MONEY" IN A SUIT AGAINST THE UNITED STATES IN THE COURT
OF CLAIMS, WHICH ON OTHER COUNTS IT ASSERTS IS BOTH UNAVAILABLE AND
INADEQUATE.  THERE IS NO ALLEGATION, HOWEVER, CONCERNING INTEREST AS
NOT BEING RECOVERABLE IN SUITS AGAINST ITS CUSTOMERS.  AND, AS WE HAVE
POINTED OUT ABOVE, THE STATUTORY INDEMNITY PROVIDED FOR SUCH
CONTRACTORS IS IN SUFFICIENTLY BROAD TERMS TO COVER INTEREST AS WELL AS
ANY OTHER LIABILITY INCURRED BY THEM THROUGH AUTHORIZED WITHHOLDING, A
GUARANTY WHICH CERTAINLY WOULD NOT PRECLUDE RECOVERY OF INTEREST BY THE
SUIT AGAINST THE CONTRACTORS IF TERMINATED ON THE MERITS IN APPELLANT'S
FAVOR. 

FN44  IT IS PERHAPS OF SOME SIGNIFICANCE IN THIS RESPECT THAT THE
COMPLAINT CONTAINS ALLEGATIONS, THOUGH NOT MADE IN THIS CONNECTION,
RELATING TO BOTH THE FISCAL YEARS 1942 AND 1943 TO THE EFFECT THAT OVER
80 PER CENT OF THE DOLLAR VALUE OF APPELLANT'S TOTAL SHIPMENTS WERE
MADE TO THREE PRIVATE CONCERNS, FAIRCHILD ENGINE AND AIRPLANE
CORPORATION, GENERAL MOTORS CORPORATION, WOODWARD GOVERNOR COMPANY, AND
THE UNITED STATES NAVY.  CONCERNING THE SHIPMENTS TO THE NAVY, SEE NOTE
8. 

FN45  SEE NOTE 43 SUPRA. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :























GREENOUGH V. TAX ASSESSORS, 331 U.S. 486 


NO. 461.  ARGUED MARCH 7, 1947.  - DECIDED JUNE 9, 1947.  - 71 R.I. 477,
47 A.2D 625, AFFIRMED. 


1.  A RHODE ISLAND MUNICIPALITY ASSESSED A TAX AGAINST A RESIDENT OF
RHODE ISLAND FOR HALF THE VALUE OF INTANGIBLES HELD JOINTLY BY HIM AND
A RESIDENT OF NEW YORK AS TRUSTEES UNDER THE WILL OF A RESIDENT OF NEW
YORK.  THE EVIDENCES OF THE INTANGIBLE PROPERTY WERE AT ALL TIMES IN
NEW YORK AND THE LIFE BENEFICIARY OF THE TRUST RESIDED THERE, THE
FUTURE BENEFICIARIES BEING UNDETERMINED.  THE RHODE ISLAND RESIDENT DID
NOT ACTUALLY EXERCISE HIS POWERS AS TRUSTEE IN RHODE ISLAND.  HELD: THE
TAX DID NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  PP. 491-498. 

2.  SO LONG AS A STATE CHOOSES TO TAX THE VALUE OF INTANGIBLES AS A
PART OF A TAXPAYER'S WEALTH, THE LOCATION OF EVIDENCES OF OWNERSHIP IS
IMMATERIAL.  P. 492. 

3.  SINCE INTANGIBLES HAVE NO REAL SITUS, THE DOMICILE OF THE OWNER
IS THE NEAREST APPROXIMATION, ALTHOUGH OTHER TAXING JURISDICTIONS MAY
ALSO HAVE POWER TO TAX THE SAME INTANGIBLES.  P. 493. 

4.  SINCE NORMALLY INTANGIBLES ARE SUBJECT TO THE IMMEDIATE CONTROL
OF THE OWNER, THIS CLOSE RELATIONSHIP BETWEEN INTANGIBLES AND THE OWNER
FURNISHES AN ADEQUATE BASIS FOR THE TAX ON THE OWNER BY THE STATE OF
HIS RESIDENCE AS AGAINST ANY ATTACK FOR VIOLATION OF THE FOURTEENTH
AMENDMENT.  P. 493. 

5.  THE SAME RULES APPLY TO THE TAXATION OF INTANGIBLES HELD BY A
TRUSTEE AS ASSETS OF A TRUST, SINCE THE TRUSTEE CAN SUE AND BE SUED AS
SUCH AND IN THIS WAY THE STATE OF HIS RESIDENCE AFFORDS HIM PROTECTION
AS THE OWNER OF INTANGIBLES.  PP. 493-496. 

6.  BROOKE V. NORFOLK, 277 U.S. 27; SAFE DEPOSIT & TRUST CO. V.
VIRGINIA, 280 U.S. 83; GRAVES V. SCHMIDLAPP, 315 U.S. 657,
DISTINGUISHED.  PP. 496-497. 

7.  IT IS NOT CONSTITUTIONALLY SIGNIFICANT THAT THE RHODE ISLAND
TRUSTEE IS NOT THE SOLE TRUSTEE OF THE NEW YORK TRUST, SINCE THE TAX
WAS ONLY UPON HIS PROPORTIONATE INTEREST, AS A TRUSTEE, IN THE RES AND
HE POSSESSED AN INTEREST IN THE INTANGIBLES SUFFICIENT TO SUPPORT A
PROPORTIONAL TAX FOR THE BENEFIT AND PROTECTION AFFORDED TO THAT
INTEREST IN RHODE ISLAND.  P. 498. 

8.  STATE COURTS ARE THE FINAL JUDICIAL AUTHORITY UPON THE MEANING OF
STATUTES OF THEIR STATES; BUT WHERE THEIR JUDGMENTS COLLIDE WITH RIGHTS
SECURED BY THE FEDERAL CONSTITUTION THIS COURT HAS POWER TO PROTECT OR
ENFORCE SUCH RIGHTS.  PP. 489, 497. 

GREENOUGH ET AL., TRUSTEES, V. TAX ASSESSORS OF NEWPORT ET AL. 

APPEAL FROM THE SUPERIOR COURT OF NEWPORT COUNTY, RHODE ISLAND. 

THE SUPREME COURT OF RHODE ISLAND SUSTAINED A TAX AGAINST A RESIDENT
OF RHODE ISLAND FOR ONE-HALF OF THE VALUE OF INTANGIBLES HELD JOINTLY
BY HIM AND A RESIDENT OF NEW YORK AS TRUSTEES OF A NEW YORK TRUST, AND
REMANDED THE CASE TO THE SUPERIOR COURT OF NEWPORT COUNTY, RHODE
ISLAND.  71 R.I. 477, 47 A.2D 625.  ON APPEAL TO THIS COURT, AFFIRMED,
P. 498. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE TESTAMENTARY TRUSTEES OF GEORGE H. WARREN, WHO DIED A
RESIDENT OF NEW YORK.  HIS WILL WAS DULY PROBATED IN THAT STATE AND
LETTERS TESTAMENTARY ISSUED TO APPELLANTS AS EXECUTORS.  A DULY
AUTHENTICATED COPY OF SAID WILL WAS FILED AND RECORDED IN RHODE ISLAND
AND THERE LETTERS TESTAMENTARY WERE ALSO ISSUED.  LETTERS OF
TRUSTEESHIP WERE GRANTED TO APPELLANTS BY A SURROGATE'S COURT IN NEW
YORK.  NONE WERE NEEDED OR ASKED FOR OR GRANTED BY RHODE ISLAND.  AT
ALL TIMES PERTINENT TO THIS APPEAL, APPELLANTS, AS TRUSTEES UNDER THE
WILL, HELD INTANGIBLE PERSONALTY FOR THE BENEFIT OF CONSTANCE W. WARREN
FOR HER LIFE AND THEN TO CERTAIN AS YET UNDETERMINED FUTURE
BENEFICIARIES. 

THE EVIDENCES OF THE INTANGIBLE PROPERTY IN THE ESTATE OF GEORGE H.
WARREN AND IN THE TRUST IN QUESTION WERE AT ALL TIMES IN NEW YORK.  THE
LIFE BENEFICIARY AND ONE OF THE TRUSTEES ARE RESIDENTS OF NEW YORK. 
THE OTHER TRUSTEE RESIDES IN RHODE ISLAND.  DURING THE PERIOD IN
QUESTION, HE DID NOT, HOWEVER, EXERCISE HIS POWERS, AS TRUSTEE, IN
RHODE ISLAND. 

A PERSONAL PROPERTY TAX OF $50 WAS ASSESSED BY THE CITY OF NEWPORT,
RHODE ISLAND, AGAINST THE RESIDENT TRUSTEE UPON ONE-HALF OF THE VALUE
OF THE CORPUS OF THE TRUST.  THE APPLICABLE ASSESSMENT STATUTE FOR AD
VALOREM TAXES APPEARS IN THE MARGIN.  FN1  AT THE TIME OF THIS
ASSESSMENT, THE PROPERTY CONSISTED OF 500 SHARES OF THE CAPITAL STOCK
OF STANDARD OIL COMPANY OF NEW JERSEY.  THE TAX WAS PAID BY THE
TRUSTEES AND THIS SUIT INSTITUTED, UNDER APPROPRIATE STATE PROCEDURE,
IN THE SUPERIOR COURT OF THE COUNTY OF NEWPORT TO RECOVER THE TAX FROM
THE CITY.  THE SUPERIOR COURT BY DECISION DENIED THE PETITION.  A BILL
OF EXCEPTIONS WAS PROSECUTED BY THESE PETITIONERS TO THE SUPREME COURT
OF RHODE ISLAND WHICH OVERRULED THE EXCEPTIONS AND REMITTED THE CASE TO
THE SUPERIOR COURT.  FN2  THEREUPON JUDGMENT WAS ENTERED FOR THE
APPELLEES AND AN APPEAL ALLOWED TO THIS COURT.  ALL QUESTIONS OF STATE
PROCEDURE AND OF THE APPLICABILITY OF THE STATE STATUTE TO THE RESIDENT
TRUSTEE IN THE CIRCUMSTANCES OF THIS CASE WERE FORECLOSED FOR US BY THE
RULINGS OF THE SUPREME COURT OF RHODE ISLAND.  FN3 

THE APPELLANTS' CONTENTION THROUGHOUT HAS BEEN THAT THE RHODE ISLAND
STATUTE, UNDER WHICH THE ASSESSMENT WAS MADE, IF APPLICABLE TO THE
RESIDENT TRUSTEE, WAS UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. 
THEIR OBJECTION IN THE STATE COURTS AND HERE IS THAT RHODE ISLAND
CANNOT TAX THE RESIDENT TRUSTEE'S PROPORTIONATE PART OF THESE TRUST
INTANGIBLES MERELY BECAUSE THAT TRUSTEE RESIDES IN RHODE ISLAND.  SUCH
A TAX, THEY URGE, IS UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE
BECAUSE IT EXACTS PAYMENT MEASURED BY THE VALUE OF PROPERTY WHOLLY
BEYOND THE REACH OF RHODE ISLAND'S POWER AND TO WHICH THAT STATE DOES
NOT GIVE PROTECTION OR BENEFIT.  APPELLANTS SPECIFICALLY DISCLAIM
RELIANCE UPON THE ARGUMENT THAT THE RHODE ISLAND TAX EXPOSES THEM TO
THE DANGER OF OTHER AD VALOREM TAXES IN ANOTHER STATE.  FN4  THE SAME
CONCESSION WAS MADE IN THE SUPREME COURT OF RHODE ISLAND.  FN5 WE
THEREFORE RESTRICT OUR DISCUSSION AND DETERMINATION TO THE ISSUE
PRESENTED BY APPELLANTS' INSISTENCE THAT RHODE ISLAND CANNOT
CONSTITUTIONALLY COLLECT THIS TAX BECAUSE THE STATE RENDERED NO
EQUIVALENT FOR ITS EXACTION IN PROTECTION OF OR BENEFIT TO THE TRUST
FUND. 

FOR THE PURPOSE OF THE TAXATION OF THOSE RESIDENT WITHIN HER BORDERS,
RHODE ISLAND HAS SOVEREIGN POWER UNEMBARRASSED BY ANY RESTRICTION
EXCEPT THOSE THAT EMERGE FROM THE CONSTITUTION.  WHETHER THAT POWER IS
EXERCISED WISELY OR UNWISELY IS THE PROBLEM OF EACH STATE.  IT MAY WELL
BE THAT SOUND FISCAL POLICY WOULD BE PROMOTED BY A TAX UPON TRUST
INTANGIBLES LEVIED ONLY BY THE STATE THAT IS THE SEAT OF A TESTAMENTARY
TRUST.  FN6  OR, IT MAY BE THAT THE ACTUAL DOMICILE OF THE TRUSTEE
SHOULD BE PREFERRED FOR A SINGLE TAX.  UTILIZATION BY THE STATES OF
MODERN RECIPROCAL STATUTORY TAX PROVISIONS MAY MORE FAIRLY DISTRIBUTE
TAX BENEFITS AND BURDENS, ALTHOUGH THE DANGER OF COMPETITIVE
INDUCEMENTS FOR OBTAINING A SETTLOR'S FAVOR ARE OBVIOUS.  FN7  BUT OUR
QUESTION HERE IS WHETHER OR NOT A PROVISION OF THE CONSTITUTION FORBIDS
THIS TAX.  NEITHER THE EXPEDIENCY OF THE LEVY NOR ITS ECONOMIC EFFECT
ON THE ECONOMY OF THE TAXING STATE IS FOR OUR CONSIDERATION.  FN8  WE
ARE DEALING WITH THE TOTALITY OF A STATE'S AUTHORITY IN THE EXERCISE OF
ITS REVENUE RAISING POWERS. 

THE FOURTEENTH AMENDMENT HAS BEEN HELD TO PLACE A LIMIT ON A STATE'S
POWER TO LAY AN AD VALOREM TAX ON ITS RESIDENTS.  FN9  PREVIOUS
DECISIONS OF THIS COURT HAVE HELD THAT MERE POWER OVER A RESIDENT DOES
NOT PERMIT A STATE TO EXACT FROM HIM A PROPERTY TAX ON HIS TANGIBLE
PROPERTY PERMANENTLY LOCATED OUTSIDE THE JURISDICTION OF THE TAXING
STATE.  FN10  SUCH AN EXACTION, THE CASES TEACH, WOULD VIOLATE THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, BECAUSE NO BENEFIT OR
PROTECTION, ADEQUATE TO SUPPORT A TAX EXACTION, IS FURNISHED BY THE
STATE OF RESIDENCE.  FN11 THE DOMICILIARY STATE OF THE OWNER OF
TANGIBLES PERMANENTLY LOCATED IN ANOTHER STATE, HOWEVER, MAY REQUIRE
ITS RESIDENT TO CONTRIBUTE TO THE GOVERNMENT UNDER WHICH HE LIVES BY AN
INCOME TAX IN WHICH THE INCOME FROM THE OUT-OF-STATE PROPERTY IS AN
ITEM OF THE TAXPAYER'S GROSS INCOME.  IT IS IMMATERIAL, IN SUCH A CASE,
THAT THE PROPERTY PRODUCING THE INCOME IS LOCATED IN ANOTHER STATE. 
NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308.  AND, WHERE THE TANGIBLE
PROPERTY OF A CORPORATION HAS NO TAXABLE SITUS OUTSIDE THE DOMICILIARY
STATE, THAT STATE MAY TAX THE TANGIBLES BECAUSE THE CORPORATION EXISTS
UNDER THE LAW OF ITS DOMICILE.  SOUTHERN PACIFIC CO. V. KENTUCKY, 222
U.S. 63.  FN12 

THE PRECEDENTS, HOLDING IT UNCONSTITUTIONAL FOR A STATE TO TAX
TANGIBLES OF A RESIDENT THAT ARE PERMANENTLY BEYOND ITS BOUNDARIES,
HAVE NOT BEEN APPLIED TO INTANGIBLES WHERE THE DOCUMENTS OF OWNER
INTEREST ARE BEYOND THE CONFINES OF THE TAXING JURISDICTION OR WHERE
THE CHOSES IN ACTION ARE MERE PROMISES OF A NONRESIDENT WITHOUT
DOCUMENTS.  FN13  ONE REASON THAT STATE TAXATION OF A RESIDENT ON HIS
INTANGIBLES IS JUSTIFIED IS THAT WHEN THE TAXPAYER'S WEALTH IS
REPRESENTED BY INTANGIBLES, THE TAX GATHERER HAS DIFFICULTY IN LOCATING
THEM AND THERE IS UNCERTAINTY AS TO WHICH TAXING DISTRICT AFFORDS
BENEFITS OR PROTECTION TO THE ACTUAL PROPERTY THAT THE INTANGIBLES
REPRESENT.  THERE MAY BE NO "PAPERS."  IF THE ASSESSMENT IS NOT MADE AT
THE RESIDENCE OF THE OWNER, INTANGIBLES MAY BE OVERLOOKED EASILY BY
OTHER ASSESSORS OF TAXES.  A STATE IS DEPENDENT UPON ITS CITIZENS FOR
REVENUE.  WEALTH HAS LONG BEEN ACCEPTED AS A FAIR MEASURE OF A TAX
ASSESSMENT.  AS A PRACTICAL MODE OF COLLECTING REVENUE, THE STATES
UNRESTRICTED BY THE FEDERAL CONSTITUTION HAVE BEEN ACCUSTOMED TO ASSESS
PROPERTY TAXES UPON INTANGIBLES "WHEREVER ACTUALLY HELD OR DEPOSITED,"
BELONGING TO THEIR CITIZENS AND REGARDLESS OF THE LOCATION OF THE
DEBTOR.  FN14  SO LONG AS A STATE CHOOSES TO TAX THE VALUE OF
INTANGIBLES AS A PART OF A TAXPAYER'S WEALTH, THE LOCATION OF THE
EVIDENCES OF OWNERSHIP IS IMMATERIAL.  IF THE LOCATION OF THE DOCUMENTS
WAS CONTROLLING, THEIR TRANSFER TO ANOTHER JURISDICTION WOULD DEFEAT
THE TAX OF THE DOMICILIARY STATE.  AS A MATTER OF FACT, THERE IS MORE
REASON FOR THE DOMICILIARY STATE OF THE OWNER OF THE INTANGIBLES THAN
FOR ANY OTHER TAXING JURISDICTION TO COLLECT A PROPERTY TAX ON THE
INTANGIBLES.  SINCE THE INTANGIBLES THEMSELVES HAVE NO REAL SITUS, THE
DOMICILE OF THE OWNER IS THE NEAREST APPROXIMATION, ALTHOUGH OTHER
TAXING JURISDICTIONS MAY ALSO HAVE POWER TO TAX THE SAME INTANGIBLES
N15.  NORMALLY THE INTANGIBLES ARE SUBJECT TO THE IMMEDIATE CONTROL OF
THE OWNER.  THIS CLOSE RELATIONSHIP BETWEEN THE INTANGIBLES AND THE
OWNER FURNISHES AN ADEQUATE BASIS FOR THE TAX ON THE OWNER BY THE STATE
OF HIS RESIDENCE AS AGAINST ANY ATTACK FOR VIOLATION OF THE FOURTEENTH
AMENDMENT.  THE STATE OF THE OWNER'S RESIDENCE SUPPLIES THE OWNER WITH
THE BENEFITS AND PROTECTION INHERENT IN THE EXISTENCE OF AN ORGANIZED
GOVERNMENT.  HE MAY CHOOSE TO EXPAND HIS ACTIVITIES BEYOND ITS BORDERS
BUT THE STATE OF HIS RESIDENCE IS HIS BASE OF OPERATIONS.  IT IS THE
PLACE WHERE HE EXERCISES CERTAIN PRIVILEGES OF CITIZENSHIP AND ENJOYS
THE PROTECTION OF HIS DOMICILIARY GOVERNMENT.  DOES A SIMILAR
RELATIONSHIP EXIST BETWEEN A TRUSTEE AND THE INTANGIBLES OF A TRUST? 

THE TRUSTEE OF TODAY MOVES FREELY FROM STATE TO STATE.  THE SETTLOR'S
RESIDENCE MAY BE ONE STATE, THE SEAT OF A TRUST ANOTHER STATE AND THE
TRUSTEE OR TRUSTEES MAY LIVE IN STILL ANOTHER JURISDICTION OR MAY
CONSTANTLY CHANGE THEIR RESIDENCE N16.  THE OFFICIAL LIFE OF A TRUSTEE
IS, OF COURSE, DIFFERENT FROM HIS PERSONAL.  A TRUST, THIS COURT HAS
SAID, IS "AN ABSTRACTION."  FOR FEDERAL INCOME TAX PURPOSES IT IS
SOMETIMES DEALT WITH AS THOUGH IT HAD A SEPARATE EXISTENCE.  ANDERSON
V. WILSON, 289 U.S. 20, 27.  THIS IS BECAUSE CONGRESS HAS SEEN FIT SO
TO DEAL WITH THE TRUST.  THIS ENTITY, THE TRUST, FROM ANOTHER POINT OF
VIEW CONSISTS OF SEPARATE INTERESTS, THE EQUITABLE INTEREST IN THE RES
OF THE BENEFICIARY N17 AND THE LEGAL INTEREST OF THE TRUSTEE.  THE
LEGAL INTEREST OF THE TRUSTEE IN THE RES IS A DISTINCT RIGHT.  IT
ENABLES A SETTLOR TO PROTECT HIS BENEFICIARIES FROM THE BURDENS OF
OWNERSHIP, WHILE THE BENEFICIARY RETAINS THE RIGHT, THROUGH EQUITY, TO
COMPEL THE LEGAL OWNER TO ACT IN ACCORDANCE WITH HIS TRUST
OBLIGATIONS.  THE TRUSTEE AS THE OWNER OF THIS LEGAL INTEREST IN THE
RES MAY INCUR OBLIGATIONS IN THE ADMINISTRATION OF THE TRUST
ENFORCEABLE AGAINST HIM, PERSONALLY.  FN18  NOTHING ELSE APPEARING, THE
TRUSTEE IS PERSONALLY LIABLE AT LAW FOR CONTRACTS FOR THE TRUST.  FN19
THIS IS THE RULE IN RHODE ISLAND.  FN20  SPECIFIC PERFORMANCE MAY BE
DECREED AGAINST HIM.  FN21  OF COURSE, THE TRUSTEE WHEN ACTING WITHIN
HIS POWERS FOR THE TRUST IS ENTITLED TO EXONERATION OR REIMBURSEMENT
FN22  AND THE TRUST RES MAY BE PURSUED IN EQUITY BY THE CREDITOR FOR
PAYMENT.  FN23 

THE SUPREME COURT OF RHODE ISLAND CONSIDERED THE ARGUMENT THAT THE
LAWS OF THE STATE AFFORDED NO BENEFIT OR PROTECTION TO THE RESIDENT
TRUSTEE.  ALTHOUGH NOTHING APPEARED AS TO ANY SPECIFIC BENEFIT OR
PROTECTION WHICH THE TRUSTEE HAD ACTUALLY RECEIVED, IT CONCLUDED THAT
THE STATE WAS "READY, WILLING AND CAPABLE" OF FURNISHING EITHER "IF
REQUESTED."  A RESIDENT TRUSTEE OF A FOREIGN TRUST WOULD BE ENTITLED TO
THE SAME ADVANTAGES FROM RHODE ISLAND LAWS AS WOULD ANY NATURAL PERSON
THERE RESIDENT.  GREENOUGH V. TAX ASSESSORS, SUPRA, 488, 47 A.2D AT
631.  THERE MAY BE MATTERS OF TRUST ADMINISTRATION WHICH CAN BE
LITIGATED ONLY IN THE COURTS OF THE STATE THAT IS THE SEAT OF THE
TRUST.  FOR EXAMPLE, IN THE CASE OF A TESTAMENTARY TRUST, THE
APPOINTMENT OF TRUSTEES, SETTLEMENT, TERMINATION AND DISTRIBUTION UNDER
THE PROVISIONS OF THE TRUST ARE TO BE CARRIED OUT, NORMALLY, IN THE
COURTS OF DECEDENT'S DOMICILE.  SEE HARRISON V. COMMISSIONER OF
CORPORATIONS, 272 MASS. 422, 427, 172 N.E. 605, 608.  BUT WHEN
TESTAMENTARY TRUSTEES RESIDE OUTSIDE OF THE JURISDICTION OF THE COURTS
OF THE STATE OF THE SEAT OF THE TRUST, THIRD PARTIES DEALING WITH THE
TRUSTEE ON TRUST MATTERS OR BENEFICIARIES MAY NEED TO PROCEED DIRECTLY
AGAINST THE TRUSTEE AS AN INDIVIDUAL FOR MATTERS ARISING OUT OF HIS
RELATION TO THE TRUST.  OR THE RESIDENT TRUSTEE MAY NEED THE BENEFIT OF
THE RHODE ISLAND LAW TO ENFORCE TRUST CLAIMS AGAINST A RHODE ISLAND
RESIDENT.  AS THE TRUSTEE IS A CITIZEN OF RHODE ISLAND, THE FEDERAL
COURTS WOULD NOT BE OPEN TO THE TRUSTEE FOR SUCH CAUSES OF ACTION WHERE
THE FEDERAL JURISDICTION DEPENDED UPON DIVERSITY.  THE CITIZENSHIP OF
THE TRUSTEE AND NOT THE SEAT OF THE TRUST OR THE RESIDENCE OF THE
BENEFICIARY IS THE CONTROLLING FACTOR.  FN24  THE TRUSTEE IS SUABLE
LIKE ANY OTHER OBLIGOR.  THERE IS NO PROVISION OF THE FEDERAL
CONSTITUTION WHICH FORBIDS SUITS IN STATE COURTS AGAINST A RESIDENT
TRUSTEE OF A TRUST CREATED UNDER THE LAWS OF A SISTER STATE. 
CONSEQUENTLY, WE MUST CONCLUDE THAT RHODE ISLAND DOES OFFER BENEFIT AND
PROTECTION THROUGH ITS LAW TO THE RESIDENT TRUSTEE AS THE OWNER OF
INTANGIBLES.  AND, WHILE IT MAY LOGICALLY BE URGED THAT THESE BENEFITS
AND PROTECTION ARE NO MORE THAN IS OFFERED A RESIDENT OWNER OF LAND OR
CHATTELS, PERMANENTLY OUT OF THE STATE, THE SAME REASONS, HEREINBEFORE
STATED ON PAGES 492 AND 493, APPLY THAT PERMIT STATE PROPERTY TAXATION
OF A RESIDENT OWNER OF INTANGIBLES WHILE DENYING A STATE POWER TO TAX
SIMILARLY THE RESIDENT'S OUT-OF-STATE REALTY. 

NO PRECEDENT FROM THIS COURT CALLED TO OUR ATTENTION INDICATES THAT
THE FEDERAL CONSTITUTION CONTAINS PROVISIONS THAT FORBID TAXATION BY A
STATE OF INTANGIBLES IN THE HANDS OF A RESIDENT TESTAMENTARY TRUSTEE. 
IN BROOKE V. NORFOLK, 277 U.S. 27, THE STATE PROPERTY TAX THERE
INVALIDATED, EVIDENTLY AS VIOLATIVE OF THE FOURTEENTH AMENDMENT, WAS
ASSESSED TO A LIFE BENEFICIARY, ON A RES, COMPOSED OF INTANGIBLES, WHEN
BOTH THE TESTATOR AND THE TRUSTEE WERE RESIDENTS OF ANOTHER STATE WHERE
THE TRUST WAS ADMINISTERED.  SAFE DEPOSIT AND TRUST COMPANY V.
VIRGINIA, 280 U.S. 83, HELD INVALID A STATE'S TAX ON A TRUST'S
INTANGIBLES, ACTUALLY IN THE HANDS OF THE NONRESIDENT TRUSTEE AND NOT
SUBJECT TO THE CONTROL OF THE EQUITABLE OWNER, BECAUSE IT WAS AN
ATTEMPT TO TAX THE TRUST RES, INTANGIBLES ACTUALLY IN THE HANDS OF A
NONRESIDENT TRUSTEE.  THIS WAS SAID TO CONFLICT WITH THE FOURTEENTH
AMENDMENT AS A TAX ON A THING BEYOND THE JURISDICTION OF THE TAXING
STATE.  FN25  SEE ALSO GRAVES V. SCHMIDLAPP, 315 U.S. 657, 663, WHERE
THE SOVEREIGN POWER OF TAXATION WAS HELD TO EXTEND TO A STATE RESIDENT
WHO BY WILL DISPOSED OF INTANGIBLES HELD BY HIM AS TRUSTEE WITH POWER
OF TESTAMENTARY DISPOSITION UNDER A NONRESIDENT TRUST.  NOTHING IN
THESE CASES LEADS TO THE CONCLUSION THAT A STATE MAY NOT TAX
INTANGIBLES IN THE HANDS OF A RESIDENT TRUSTEE OF AN OUT-OF-STATE
TRUST.  FN26 

STATE COURTS CONSTRUE THEIR STATUTES ACCORDING TO THEIR UNDERSTANDING
OF STATE POLICY AND APPLY THEM TO SUCH SITUATIONS AS THEIR
INTERPRETATION OF THE STATUTORY LANGUAGE REQUIRES.  IN SO ADJUDGING,
THEY ARE THE FINAL JUDICIAL AUTHORITY UPON THE MEANING OF THEIR STATE
LAW.  IT IS ONLY IN CIRCUMSTANCES WHERE THEIR JUDGMENTS COLLIDE WITH
RIGHTS SECURED BY THE FEDERAL CONSTITUTION THAT WE HAVE POWER TO
PROTECT OR ENFORCE THE FEDERAL RIGHTS.  IN ADJUDGING THE TAXABILITY
UNDER STATE LAW OF A RESIDENT TRUSTEE'S OWNERSHIP OF INTANGIBLES,
WITHOUT RELIANCE UPON THE RESIDENCE OF SETTLOR OR BENEFICIARY OR THE
LOCATION OF THE INTANGIBLES, VARIOUS CONCLUSIONS HAVE BEEN REACHED
UNDER STATE LAW AND WITHOUT REGARD TO THE CONSTITUTION OF THE UNITED
STATES.  THEY ARE PERTINENT TO OUR PROBLEM ONLY AS ILLUSTRATIONS OF THE
DIFFERENT VIEWPOINTS OF STATE LAW.  FN27 

NOR DO WE THINK IT CONSTITUTIONALLY SIGNIFICANT THAT THE RHODE ISLAND
TRUSTEE IS NOT THE SOLE TRUSTEE OF THE NEW YORK TRUST.  THE ASSESSMENT,
AS THE STATUTE IN QUESTION REQUIRED, WAS ONLY UPON HIS PROPORTIONATE
INTEREST, AS A TRUSTEE, IN THE RES.  WHATEVER MAY HAVE BEEN THE
CHARACTER OF HIS TITLE TO THE INTANGIBLES  FN28  OR THE LIMITATIONS ON
HIS SOLE ADMINISTRATIVE POWER OVER THE TRUST,  FN29  THE RESIDENT
TRUSTEE WAS THE POSSESSOR OF AN INTEREST IN THE INTANGIBLES,
SUFFICIENT, AS WE HAVE EXPLAINED, TO SUPPORT A PROPORTIONAL TAX FOR THE
BENEFIT AND PROTECTION AFFORDED TO THAT INTEREST BY RHODE ISLAND.  FN30
AFFIRMED. 

FN1  GENERAL LAWS OF RHODE ISLAND (1938), C. 30, SEC. 9: 

"FIFTH.  INTANGIBLE PERSONAL PROPERTY HELD IN TRUST BY ANY EXECUTOR,
ADMINISTRATOR, OR TRUSTEE, WHETHER UNDER AN EXPRESS OR IMPLIED TRUST,
THE INCOME OF WHICH IS TO BE PAID TO ANY OTHER PERSON, SHALL BE TAXED
TO SUCH EXECUTOR, ADMINISTRATOR, OR TRUSTEE IN THE TOWN WHERE SUCH
OTHER PERSON RESIDES; BUT IF SUCH OTHER PERSON RESIDES OUT OF THE
STATE, THEN IN THE TOWN WHERE THE EXECUTOR, ADMINISTRATOR, OR TRUSTEE
RESIDES; AND IF THERE BE MORE THAN ONE SUCH EXECUTOR, ADMINISTRATOR, OR
TRUSTEE, THEN IN EQUAL PROPORTIONS TO EACH OF SUCH EXECUTORS,
ADMINISTRATORS, AND TRUSTEES IN THE TOWNS WHERE THEY RESPECTIVELY
RESIDE." 

FN2  GENERAL LAWS OF RHODE ISLAND (1938), C. 31, SEC. 14; C. 545,
SEC. 6, AS AMENDED BY C. 941, PUBLIC LAWS OF RHODE ISLAND (1939-40);
GREENOUGH V. TAX ASSESSORS, 71 R.I. 477, 47 A.2D 625. 

FN3  CHASE SECURITIES CORPORATION V. DONALDSON, 325 U.S. 304, 311;
SEE HUDDLESTON V. DWYER, 322 U.S. 232, 237; AMERICAN FEDERATION OF
LABOR V. WATSON, 327 U.S. 582, 595. 

FN4  SEE MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK, TAX LAW, SECS. 3,
350(7), 365, 369, 377.  FIDELITY & COLUMBIA TRUST CO. V. LOUISVILLE,
245 U.S. 54.  COMPARE BLACKSTONE V. MILLER, 188 U.S. 189; CURRY V.
MCCANLESS, 307 U.S. 357, 363; GRAVES V. ELLIOTT, 307 U.S. 383; GRAVES
V. SCHMIDLAPP, 315 U.S. 657; STATE TAX COMM'N V. ALDRICH, 316 U.S. 174,
177, WITH FARMERS LOAN & TRUST CO. V. MINNESOTA, 280 U.S. 204; FIRST
NATIONAL BANK V. MAINE, 284 U.S. 312. 

FN5  GREENOUGH V. TAX ASSESSORS, 71 R.I. 477, 488, 47 A.2D 625, 631. 

FN6  COMPARE HARRISON V. COMMISSIONER OF CORPORATIONS AND TAXATION,
272 MASS. 422, 172 N.E. 605. 

FN7  COMPARE MR. JUSTICE HOLMES' DISSENT, BALDWIN V. MISSOURI, 281
U.S. 586, 595. 

FN8  STATE TAX COMM'N V. ALDRICH, 316 U.S. 174, 181. 

FN9  SEE LAWRENCE V. STATE TAX COMM'N, 286 U.S. 276, 279.  ART. I,
SEC. 10, CL. 2 AND 3, CONTAIN LIMITATIONS ON A STATE'S POWER TO LEVY
IMPORT OR EXPORT OR TONNAGE DUTIES. 

FN10  UNION TRANSIT CO. V. KENTUCKY, 199 U.S. 194, 202; FRICK V.
PENNSYLVANIA, 268 U.S. 473, 488; CREAM OF WHEAT CO. V. GRAND FORKS, 253
U.S. 325, 328-29; CURRY V. MCCANLESS, 307 U.S. 357, 363-65, AND NOTE 3;
SEE WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 444; STATE TAX COMM'N
V. ALDRICH, 316 U.S. 174, 178. 

FN11  EVEN WHERE OUR CASES HAVE SPOKEN OF POWER OVER THE PERSON AS
THOUGH IT ALONE MIGHT BE A SUFFICIENT JUSTIFICATION FOR AD VALOREM
TAXATION OF A RESIDENT ON TANGIBLES OUTSIDE THE TAXING JURISDICTION,
THE LANGUAGE WAS USED IN INSTANCES WHERE THERE WERE OTHER BASES FOR THE
TAX.  STATE TAX ON FOREIGN-HELD BONDS, 15 WALL.  300, 319; SOUTHERN
PACIFIC CO. V. KENTUCKY, 222 U.S. 63, 76; PEARSON V. MCGRAW, 308 U.S.
313, 318. 

FN12  SEE DISCUSSION IN NORTHWEST AIRLINES V. MINNESOTA, 322 U.S.
292. 

FN13 KIRTLAND V. HOTCHKISS, 100 U.S. 491; FIDELITY & COLUMBIA TRUST
CO. V. LOUISVILLE, 245 U.S. 54; COMPARE BLODGETT V. SILBERMAN, 277 U.S.
1, 8-12; MAGUIRE V. TREFRY, 253 U.S. 12; CURRY V. MCCANLESS, 307 U.S.
357, 365-68; WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 444; STATE TAX
COMM'N V. ALDRICH, 316 U.S. 174, 180. 

FN14  KIRTLAND V. HOTCHKISS, 100 U.S. 491.  COMPARE NEW YORK EX REL.
COHN V. GRAVES, 300 U.S. 308. 

FN15  SEE CURRY V. MCCANLESS, 307 U.S. 357, 365-68; WHEELING STEEL
CORP. V. FOX, 298 U.S. 193.  CERTAIN EVIDENCES OF INDEBTEDNESS HAVE
BEEN HELD SUFFICIENT IN THEMSELVES TO JUSTIFY A STATE'S IMPOSITION OF A
SUCCESSION TAX UPON THEIR NONRESIDENT OWNER.  WHEELER V. NEW YORK, 233
U.S. 434. 

FN16  SEE HUTCHISON V. ROSS, 262 N.Y. 381, 393, 187 N.E. 65, 70. 

FN17  BROWN V. FLETCHER, 235 U.S. 589, 598-600; BLAIR V.
COMMISSIONER, 300 U.S. 5, 13. 

FN18  SCOTT, TRUSTS (1939), PP. 487, 1469 ET SEQ.; WILLISTON,
CONTRACTS (1936) SEC. 312; BOGERT, TRUSTS AND TRUSTEES (1935) SEC.
146. 

FN19  DUVALL V. CRAIG, 2 WHEAT.  45, 56; TAYLOR V. DAVIS, 110 U.S.
330, 335:  "A TRUSTEE MAY BE DEFINED GENERALLY AS A PERSON IN WHOM SOME
ESTATE, INTEREST, OR POWER IN OR AFFECTING PROPERTY IS VESTED FOR THE
BENEFIT OF ANOTHER.  WHEN AN AGENT CONTRACTS IN THE NAME OF HIS
PRINCIPAL, THE PRINCIPAL CONTRACTS AND IS BOUND, BUT THE AGENT IS NOT. 
WHEN A TRUSTEE CONTRACTS AS SUCH, UNLESS HE IS BOUND NO ONE IS BOUND,
FOR HE HAS NO PRINCIPAL.  THE TRUST ESTATE CANNOT PROMISE; THE CONTRACT
IS THEREFORE THE PERSONAL UNDERTAKING OF THE TRUSTEE.  AS A TRUSTEE
HOLDS THE ESTATE, ALTHOUGH ONLY WITH THE POWER AND FOR THE PURPOSE OF
MANAGING IT, HE IS PERSONALLY BOUND BY THE CONTRACTS HE MAKES AS
TRUSTEE, EVEN WHEN DESIGNATING HIMSELF AS SUCH." 

LAZENBY V. CODMAN, 28 F.SUPP.  949; PRUDENTIAL INS. CO. V. LAND
ESTATES, 31 F.SUPP.  845; PEYSER V. AMERICAN SECURITY & TRUST CO., 107
F.2D 625. 

FN20  ROGER WILLIAMS N. BK. V. GROTON MANUFACTURING CO., 16 R.I. 504,
17 A. 170. 

FN21  WARREN V. GOODLOE'S EXECUTOR, 230 KY. 514, 520, 20 S.W.2D 278,
281. 

FN22  SCOTT, TRUSTS, SEC. 244 ET SEQ. AND SEC. 268. 

FN23  SCOTT, TRUSTS, SEC. 267 ET SEQ. SEE BALLENTINE V. EATON, 297
MASS. 389, 8 N.E.2D 808; O'BRIEN V. JACKSON, 167 N.Y. 31, 60 N.E. 238. 

FN24  BULLARD V. CISCO, 290 U.S. 179, 190.  SEE MEMPHIS STREET R. CO.
V. MOORE, 243 U.S. 299. 

FN25  THE POWER OF A STATE TO TAX THE EQUITABLE INTEREST OF A
BENEFICIARY IN SUCH CIRCUMSTANCES WAS NOT PRESENTED.  ID., PP. 92 AND
95. 

FN26  GOODSITE V. LANE, 139 F. 593(C.C.A.6TH), HOLDS THAT A STATE
PROPERTY TAX ON A TRUSTEE'S INTANGIBLES FOR THE SOLE REASON THAT HE
RESIDES IN THE TAXING STATE IS INVALID.  IT WOULD SEEM THIS WAS SO
DECIDED BECAUSE OF THE FOURTEENTH AMENDMENT.  WE DO NOT THINK THIS CASE
GIVES PROPER RECOGNITION TO THE STATE'S POWER TO TAX THE OWNER OF THE
LEGAL TITLE TO THE RES. 

FN27  THE STATE STATUTE TAXING PROPERTY TO THE TRUSTEE VALIDLY
APPLIES TO THE RESIDENT TRUSTEE: WELCH V. CITY OF BOSTON, 221 MASS.
155, 109 N.E. 174; HARVARD TRUST CO. V. COMMISSIONER OF TAXATION, 284
MASS. 225, 230, 187 N.E. 596, 598; MACKAY V. SAN FRANCISCO, 128 CAL.
678, 61 P. 382; MILLSAPS V. JACKSON, 78 MISS.  537, 30 SO. 756;
MCLELLAN V. CONCORD, 78 N.H. 89, 97 A. 552; FLORIDA V. BEARDSLEY, 77
FLA. 803, 82 SO. 794. 

THE STATE TAX STATUTE IS INAPPLICABLE TO THE RESIDENT TRUSTEE:
DORRANCE'S ESTATE, 333 PA. 162, 3 A.2D 682; COMMONWEALTH V. PEEBLES,
134 KY. 121, 135, 119 S.W. 774, 778; DARROW V. COLEMAN, 119 N.Y. 137,
23 N.E. 488; RAND V. PITTSFIELD, 70 N.H. 530, 49 A. 88.  NEWCOMB V.
PAIGE, 224 MASS. 516, 113 N.E. 458, AND HARRISON V. COMMISSIONER, 272
MASS. 422, 172 N.E. 605, DECLINED TAXATION ON THE GROUND OF COMITY AND
THUS DISTINGUISHED WELCH V. CITY OF BOSTON, SUPRA, 272 MASS. 428-29,
172 N.E. 609. 

FN28  SCOTT, TRUSTS, SECS. 88.1, 103; BOGERT, TRUSTS AND TRUSTEES,
SEC. 145. 

FN29  SCOTT, TRUSTS, SEC. 194; BRENNAN V. WILLSON, 71 N.Y. 502; FRITZ
V. CITY TRUST CO., 72 APP. DIV. 532, 76 N.Y.S. 625, AFF. 173 N.Y. 622,
66 N.E. 1109; IN RE CAMPBELL'S ESTATE, 171 MISC. 750, 13 N.Y.S.2D 773. 

FN30  THE STATE COURTS HAVE REACHED VARYING CONCLUSIONS UNDER THEIR
STATUTES:  SEE PEOPLE EX REL. BEAMAN V. FEITNER, 168 N.Y. 360, 61 N.E.
280; MACKAY V. SAN FRANCISCO, 128 CAL. 678, 61 P. 382; MCLELLAN V.
CONCORD, 78 N.H. 89, 97 A. 552; DORRANCE'S ESTATE, 333 PA. 162, 3 A.2D
682; NEWCOMB V. PAIGE, 224 MASS. 516, 113 N.E. 458; HARRISON V.
COMMISSIONER, 272 MASS. 422, 430-31, 172 N.E. 605, 609-10. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IN VIEW OF THE DISSENTS ELICITED BY THE COURT'S OPINION, I SHOULD
LIKE TO STATE WHY I JOIN IT. 

RHODE ISLAND TAXES ITS PERMANENT RESIDENTS IN PROPORTION TO THE VALUE
OF THEIR PROPERTY.  THE STATE IMPOSES THE TAX WHETHER ITS RESIDENTS OWN
PROPERTY OUTRIGHT OR OWN IT, LEGALLY SPEAKING, IN A FIDUCIARY
CAPACITY.  IT IS NOT QUESTIONED THAT THE INTANGIBLE ASSETS IN
CONTROVERSY COULD BE INCLUDED IN THE MEASURE OF THE TAX AGAINST THE
PERSON OF THIS TRUSTEE IF HE OWNED THEM OUTRIGHT.  THE DOCTRINE THAT
THE POWER OF TAXATION DOES NOT EXTEND TO CHATTELS PERMANENTLY SITUATED
OUTSIDE A STATE THOUGH THE OWNER WAS WITHIN IT, UNION REFRIGERATOR
TRANSIT CO. V. KENTUCKY, 199 U.S. 194; FRICK V. PENNSYLVANIA, 268 U.S.
473, IS INAPPLICABLE.  THE TAX IS CHALLENGED, AS WANTING IN "DUE
PROCESS," BECAUSE THE RHODE ISLAND RESIDENT IS MERELY TRUSTEE OF THESE
INTANGIBLES AND THE PIECES OF PAPER THAT EVIDENCE THEM ARE KEPT OUTSIDE
THE STATE. 

RHODE ISLAND'S SYSTEM OF TAXING ITS RESIDENTS - SUBJECTING THEM TO
THE SAME MEASURE FOR ASCERTAINING THEIR ABILITY TO PAY WHETHER THEY
HOLD PROPERTY FOR THEMSELVES OR FOR OTHERS - LONG ANTEDATED THE
FOURTEENTH AMENDMENT.  RHODE ISLAND HAS IMPOSED THIS TAX, "IT MAY BE
PRESUMED, FOR THE GENERAL ADVANTAGES OF LIVING WITHIN THE
JURISDICTION."  FIDELITY & COLUMBIA TRUST CO. V. LOUISVILLE, 245 U.S.
54, 58.  IT CAN HARDLY BE DEEMED IRRATIONAL TO SAY, AS RHODE ISLAND
APPARENTLY HAS SAID FOR A HUNDRED YEARS, THAT THOSE ADVANTAGES MAY BE
ROUGHLY MEASURED, FOR FISCAL PURPOSES, BY THE WEALTH WHICH A PERSON
CONTROLS, WHATEVER HIS ULTIMATE BENEFICIAL INTEREST IN THE PROPERTY. 
"THE FOURTEENTH AMENDMENT, ITSELF A HISTORICAL PRODUCT, DID NOT DESTROY
HISTORY FOR THE STATES AND SUBSTITUTE MECHANICAL COMPARTMENTS OF LAW
ALL EXACTLY ALIKE."  JACKMAN V. ROSENBAUM CO., 260 U.S. 22, 31. 

IN ANY EVENT, RHODE ISLAND COULD IN TERMS TAX ITS RESIDENTS FOR
ACTING AS TRUSTEES, AND DETERMINE THE AMOUNT OF THE TAX AS THOUGH A
TRUSTEE OWNED HIS TRUST ESTATE OUTRIGHT.  RHODE ISLAND HAS, IN EFFECT,
DONE SO BY TREATING ALL RHODE ISLAND RESIDENTS ALIKE IN RELATION TO
THEIR PROPERTY HOLDINGS, REGARDLESS OF THEIR BENEFICIAL INTERESTS. 
THAT IS THE PRACTICAL OPERATION OF THE STATUTE.  IT IS THAT WHICH
CONTROLS CONSTITUTIONALITY, AND NOT THE FORM IN WHICH A STATE HAS CAST
A TAX.  LAWRENCE V. STATE TAX COMMISSION, 286 U.S. 276, 280; WISCONSIN
V. J.C. PENNEY CO., 311 U.S. 435, 443 ET SEQ. WHETHER A RHODE ISLAND
TRUSTEE CAN GO AGAINST HIS TRUST ESTATE FOR THE AMOUNT OF THE TAX WHICH
RHODE ISLAND EXACTS FROM HIM IS OF NO CONCERN TO RHODE ISLAND.  RHODE
ISLAND'S POWER TO TAX ITS RESIDENTS IS NOT CONTINGENT UPON IT.  A
TRUSTEESHIP IS A FREE UNDERTAKING. 

MR. JUSTICE JACKSON, DISSENTING. 

IF RHODE ISLAND HAD LAID A TAX ON ONE OF ITS CITIZENS INDIVIDUALLY, I
SHOULD THINK IT UNASSAILABLE EVEN IF THE BASIS FOR TAXING HIM WAS THAT
HE HELD THIS TRUSTEESHIP, AND PERHAPS THE TAX ON HIM COULD BE MEASURED
BY THE VALUE OF THE TRUST ESTATE.  IN THAT CASE THE STATE WOULD TAX
ONLY ITS OWN CITIZEN.  ONE IS PRETTY MUCH AT THE MERCY OF HIS OWN STATE
AS TO THE EVENTS OR RELATIONSHIP FOR WHICH IT WILL TAX HIM.  IF IT
WANTS TO MAKE THE HOLDING OF A TRUSTEESHIP TAXABLE, I KNOW OF NO
FEDERAL GROUNDS OF OBJECTION.  BUT THAT IS NOT WHAT IS BEING DONE, NOR
WHAT THIS DECISION AUTHORIZES. 

IF RHODE ISLAND HAD TAXED THE INDIVIDUAL, HE MIGHT HAVE SOUGHT
REIMBURSEMENT FROM THE ESTATE.  WHETHER THE ESTATE WAS CHARGEABLE WOULD
BE LEFT TO DETERMINATION BY THE COURTS OF THE STATE SUPERVISING THE
TRUST.  THEY MIGHT CONSIDER THE NATURE OF THE TAX TO BE A PERSONAL
CHARGE, AS AN INCOME TAX WOULD DOUBTLESS BE.  OR THEY MIGHT FIND IT TO
BE AN EXPENSE OF ADMINISTRATION, SUCH AS A TRANSFER TAX, AND PROPERLY
TO BE BORNE BY THE FUND.  BUT HERE NO SUCH DECISION IS LEFT TO THE
COURTS WHICH CONTROL THE FUND - THE TAX IS LAID ON THE TRUSTEE AS SUCH
THE ESTATE IS THE TAXPAYER.    RHODE ISLAND CLAIMS THE POWER TO TAX
THE ESTATE SOLELY BECAUSE ONE OF ITS TRUSTEES RESIDES IN THAT STATE. 
NO PROPERTY IS IN RHODE ISLAND AND ITS COURTS ARE NOT SUPERVISING
ADMINISTRATION OF THE TRUST.  THE ESTATE IS WHOLLY LOCATED IN NEW YORK
AND THE TRUSTEES DERIVE THEIR AUTHORITY, POWERS AND TITLE FROM ITS
COURTS AND TO THEM MUST ACCOUNT. 

I HAD NOT SUPPOSED THAT A TRUST FUND BECAME TAXABLE IN EVERY STATE IN
WHICH ONE OF ITS TRUSTEES MAY RESIDE.  OF COURSE, IN THIS INSTANCE IT
IS PROPOSED TO TAX ONLY ONE-HALF OF THE ESTATE AS ONLY ONE OF THE TWO
TRUSTEES IS RESIDENT IN RHODE ISLAND.  BUT THIS SEEMS TO BE AN ACT OF
GRACE IF THERE IS A RIGHT TO TAX AT ALL.  THE TRUSTEE HAS NO POWER
OVER, OR TITLE TO, ANY FRACTION OF THE TRUST PROPERTY THAT HE DOES NOT
HAVE OVER ALL OF IT.  IF MERE RESIDENCE OF A TRUSTEE IS SUCH A
CONDUCTOR OF STATE AUTHORITY THAT THROUGH HIM IT REACHES THE ESTATE, I
SEE NO REASON WHY IT SHOULD STOP AT A PART, NOR INDEED WHY A TRUSTEE
SUBJECT TO THE TAXING POWER OF SEVERAL STATES, CF. TEXAS V. FLORIDA,
306 U.S. 398, MAY NOT ALSO SUBJECT THE TRUST FUND TO SEVERAL STATE
TAXES BY MERELY MOVING ABOUT. 

THE DECISION IS A HARD BLOW TO THE PRACTICE OF NAMING INDIVIDUAL
TRUSTEES.  IT SEEMS TO ME THAT THERE IS NO POWER IN THE STATE TO LAY
THE TAX ON THE TRUST FUNDS, DESPITE UNQUESTIONABLE AUTHORITY TO TAX ITS
OWN CITIZEN-TRUSTEE INDIVIDUALLY. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 

MR. JUSTICE RUTLEDGE, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

I AM IN AGREEMENT WITH THE VIEWS EXPRESSED BY MR. JUSTICE JACKSON,
EXCEPT THAT I INTIMATE NO OPINION CONCERNING WHETHER RHODE ISLAND COULD
LAY A TAX UPON ONE OF ITS RESIDENTS FOR THE PRIVILEGE OF ACTING AS ONE
OF TWO OR MORE TRUSTEES, WHEN THE STATE'S ONLY CONNECTION WITH THE
TRUST ARISES FROM THE FACT OF HIS RESIDENCE.  THIS IS NOT SUCH A CASE. 

WHETHER OR NOT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT FORBIDS
STATE TAXATION OF ACTS, TRANSACTIONS, EVENTS OR PROPERTY IS ESSENTIALLY
A PRACTICAL MATTER AND ONE OF DEGREE, DEPENDING UPON THE EXISTENCE OF
SUFFICIENT FACTUAL CONNECTIONS, HAVING ECONOMIC AND LEGAL EFFECTS,
BETWEEN THE TAXING STATE AND THE SUBJECT OF THE TAX.  I DO NOT THINK
THE MERE FACT THAT ONE OF A NUMBER OF TRUSTEES RESIDES IN A STATE,
WITHOUT MORE, IS A SUFFICIENTLY SUBSTANTIAL CONNECTION TO JUSTIFY A
LEVY BY THAT STATE UPON THE TRUST CORPUS, BY AN AD VALOREM TAX EITHER
FRACTIONAL OR ON THE ENTIRETY OF THE RES. 

IT MAY BECOME NECESSARY FOR CLAIMANTS, BENEFICIARIES OR OTHERS TO SUE
THE TRUSTEE IN RHODE ISLAND OR PERHAPS FOR HIM TO JOIN WITH OTHER
TRUSTEES IN SUING THIRD PERSONS THERE ABOUT TRUST MATTERS.  TO THAT
EXTENT BENEFIT AND PROTECTION MAY BE CONFERRED UPON THE TRUST.  BUT
THOSE NEEDS MAY ARISE IN CONNECTION WITH ANY SORT OF BUSINESS OR
ACTIVITY, TRUST OR OTHER, LOCATED AND CONDUCTED OUTSIDE THE STATE AS
LARGELY AS THIS TRUST'S AFFAIRS.  I HAD NOT SUPPOSED THAT MERELY
KEEPING OPEN THE STATE'S COURTS TO SUCH CLAIMS WOULD FURNISH A
SUFFICIENT BASIS FOR BRINGING WITHIN ITS TAXING GRASP ALL PROPERTY
AFFECTED BY THE CLAIMS' ASSERTION.  THAT THE TRUST RES HERE CONSISTS OF
INTANGIBLES DOES NOT SEEM TO ME A SUFFICIENTLY SUBSTANTIAL FACTOR, IN
THE CIRCUMSTANCES PRESENTED, TO JUSTIFY SO WIDE A REACH OF THE STATE'S
TAXING ARM. 

MOBILIA SEQUUNTUR PERSONAM HAS ITS APPROPRIATE USES FOR SUSTAINING
THE STATES' TAXING POWERS AFFECTING RESIDENTS AND THEIR EXTRASTATE
INTERESTS.  BUT WHEN IT IS APPLIED TO THE SPLIT OWNERSHIP OF A TRUST,
NOT ONLY AS BETWEEN TRUSTEE AND BENEFICIARY BUT ALSO AS AMONG SEVERAL
TRUSTEES, TO BRING THE TRUST RES WITHIN THE SEVERAL STATES' POWERS OF
TAXATION, MERELY BY VIRTUE OF THE RESIDENCE IN EACH OF ONE TRUSTEE AND
NOTHING MORE, THE FICTION I THINK IS CARRIED TOO FAR.  SOMETHING MORE
THAN AFFORDING A DOMICILIARY BASIS FOR SERVICE OF PROCESS, COUPLED WITH
THE SPLIT AND QUALIFIED REPRESENTATIVE OWNERSHIP OF SUCH A TRUSTEE,
SHOULD BE REQUIRED TO SUSTAIN THE STATE'S POWER TO TAX THE TRUST RES,
WHETHER FOR ALL OR ONLY A FRACTION OF ITS VALUE. 

FINALLY, WHATEVER MIGHT BE TRUE OF A SINGLE TRUSTEE OR OF SEVERAL
RESIDING IN A SINGLE STATE, I SHOULD DOUBT THE THESIS THAT THE INTEREST
OF ONE OF TWO OR MORE TRUSTEES IN A TRUST IS MORE SUBSTANTIAL THAN THAT
OF A BENEFICIARY OR RECEIVES GREATER PROTECTION OR BENEFIT FROM THE
STATE OF HIS RESIDENCE.  AND IF THE BENEFICIARY'S RESIDENCE ALONE IS
INSUFFICIENT TO SUSTAIN A STATE'S POWER TO TAX THE CORPUS OF THE TRUST,
CF. BROOKE V. NORFOLK, 277 U.S. 27,  FN1  IT WOULD SEEM THAT THE MERE
RESIDENCE OF ONE OF A NUMBER OF TRUSTEES HARDLY WOULD SUPPLY A FIRMER
FOUNDATION. 

FN1  BUT CF. HOLMES, J., DISSENTING IN SAFE DEPOSIT & TRUST CO. V.
VIRGINIA, 280 U.S. 83, 96. 
..END :










CLARK V. ALLEN, 331 U.S. 503 


NO. 626.  ARGUED APRIL 11, 1947.  - DECIDED JUNE 9, 1947.  - 156 F.2D
653, REVERSED IN PART AND AFFIRMED IN PART. 


1.  THE PROVISIONS OF ARTICLE IV OF THE TREATY OF 1923 WITH GERMANY,
WHICH ASSURES TO GERMAN HEIRS OF "ANY PERSON" HOLDING REALTY IN THE
UNITED STATES THE RIGHT TO INHERIT THE SAME, TO SELL IT WITHIN THREE
YEARS, TO WITHDRAW THE PROCEEDS, AND TO BE EXEMPT FROM DISCRIMINATORY
TAXATION, PREVAIL OVER ANY CONFLICTING PROVISION OF CALIFORNIA LAW -
UNLESS THE PROVISIONS OF THE TREATY HAVE BEEN SUPERSEDED OR ABROGATED. 
PP. 507-508. 

2.  SO FAR AS THE RIGHT TO INHERIT REALTY IS CONCERNED, THE TREATY
HAS NOT BEEN ABROGATED OR SUPERSEDED - ALTHOUGH THE RIGHT TO SELL IT
AND WITHDRAW THE PROCEEDS MAY HAVE BEEN ABROGATED AND THE FEDERAL
GOVERNMENT HAS DISCRETIONARY POWER TO VEST THE PROPERTY IN ITSELF,
SUBJECT TO CERTAIN RIGHTS OF THE OWNERS.  PP. 508-514. 

(A)  THE OUTBREAK OF WAR DOES NOT NECESSARILY SUSPEND OR ABROGATE
TREATY PROVISIONS.  P. 508. 

(B)  THE NATIONAL POLICY EXPRESSED IN THE TRADING WITH THE ENEMY ACT,
AS AMENDED BY THE FIRST WAR POWERS ACT, IS NOT INCOMPATIBLE WITH THE
RIGHT OF INHERITANCE OF REALTY GRANTED GERMAN ALIENS UNDER ARTICLE IV
OF THE TREATY.  PP. 510-512. 

(C)  THE TREATY OF BERLIN, WHICH ACCORDED THE UNITED STATES ALL
RIGHTS AND ADVANTAGES SPECIFIED IN THE JOINT RESOLUTION OF JULY 2,
1921, VESTING IN THE UNITED STATES ABSOLUTE TITLE TO PROPERTY OF GERMAN
NATIONALS THEN HELD BY THE UNITED STATES, DID NOT ABROGATE THE RIGHT OF
GERMAN HEIRS UNDER THE 1923 TREATY WITH GERMANY TO INHERIT REALTY IN
THIS COUNTRY.  PP. 512-514. 

(D)  THERE IS NO EVIDENCE THAT THE POLITICAL DEPARTMENTS OF THE
GOVERNMENT HAVE CONSIDERED THAT THE COLLAPSE AND SURRENDER OF GERMANY
PUT AN END TO SUCH PROVISIONS OF THE 1923 TREATY AS SURVIVED THE
OUTBREAK OF WAR OR THE OBLIGATIONS OF EITHER PARTY IN RESPECT TO THEM. 
P. 514. 

3.  THE PROVISIONS OF ARTICLE IV OF THE TREATY OF 1923 WITH GERMANY,
WHICH ASSURES TO GERMAN NATIONALS THE POWER TO DISPOSE OF THEIR
PERSONAL PROPERTY IN THIS COUNTRY, DOES NOT COVER PERSONALTY LOCATED IN
THIS COUNTRY WHICH AN AMERICAN CITIZEN UNDERTAKES TO LEAVE TO GERMAN
NATIONALS, BUT IT DOES COVER PERSONALTY IN THIS COUNTRY WHICH A GERMAN
NATIONAL UNDERTAKES TO DISPOSE OF BY WILL.  PP. 514-516, 517. 

4.  SECTION 259 OF THE CALIFORNIA PROBATE CODE AS IT EXISTED IN 1942,
WHICH MADE THE RIGHT OF NON-RESIDENT ALIENS TO ACQUIRE PERSONAL
PROPERTY DEPENDENT UPON THE RECIPROCAL RIGHTS OF AMERICAN CITIZENS TO
DO SO IN THE COUNTRIES OF WHICH SUCH ALIENS ARE INHABITANTS OR
CITIZENS, IS NOT UNCONSTITUTIONAL AS AN INVASION BY THE STATE OF THE
FIELD OF FOREIGN AFFAIRS RESERVED TO THE FEDERAL GOVERNMENT.  PP. 516
517. 

CLARK, ATTORNEY GENERAL, AS SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN,
V. ALLEN ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

A RESIDENT OF CALIFORNIA HAVING BEQUEATHED HER ENTIRE ESTATE TO
CERTAIN GERMAN NATIONALS AFTER THE DECLARATION OF WAR ON GERMANY AND
THE ALIEN PROPERTY CUSTODIAN HAVING VESTED IN HIMSELF ALL THEIR RIGHT,
TITLE AND INTEREST IN THE ESTATE, PURSUANT TO EXECUTIVE ORDER 9788, 11
FED. REG. 11981, ISSUED UNDER THE TRADING WITH THE ENEMY ACT, AS
AMENDED BY THE FIRST WAR POWERS ACT, A DISTRICT COURT HELD THAT THE
CUSTODIAN WAS ENTITLED TO THE ENTIRE NET ESTATE AND THAT THE EXECUTOR
AND THE CALIFORNIA HEIRS-AT-LAW HAD NO INTEREST IN THE ESTATE.  52
F.SUPP.  850.  THE CIRCUIT COURT OF APPEALS REVERSED ON THE GROUND THAT
THE DISTRICT COURT WAS WITHOUT JURISDICTION OF THE SUBJECT MATTER.  147
F.2D 136.  THIS COURT GRANTED CERTIORARI, 325 U.S. 846, AND REVERSED. 
326 U.S. 490.  THE CIRCUIT COURT OF APPEALS THEN HELD FOR THE EXECUTOR
AND CALIFORNIA HEIRS-AT-LAW.  156 F.2D 653.  THIS COURT GRANTED
CERTIORARI, 329 U.S. 706, AND SUBSTITUTED THE ATTORNEY GENERAL AS
SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN.  329 U.S. 691.  AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED TO THE DISTRICT COURT, P. 518. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ALVINA WAGNER, A RESIDENT OF CALIFORNIA, DIED IN 1942, LEAVING REAL
AND PERSONAL PROPERTY SITUATE THERE.  BY A WILL DATED DECEMBER 23,
1941, AND ADMITTED TO PROBATE IN A CALIFORNIA COURT IN 1942, SHE
BEQUEATHED HER ENTIRE ESTATE TO FOUR RELATIVES WHO ARE NATIONALS AND
RESIDENTS OF GERMANY.  SIX HEIRS-AT-LAW, RESIDENTS OF CALIFORNIA, FILED
A PETITION FOR DETERMINATION OF HEIRSHIP IN THE PROBATE PROCEEDINGS
CLAIMING THAT THE GERMAN NATIONALS WERE INELIGIBLE AS LEGATEES UNDER
CALIFORNIA LAW.  FN1 

THERE HAS NEVER BEEN A HEARING ON THAT PETITION.  FOR IN 1943 THE
ALIEN PROPERTY CUSTODIAN, TO WHOSE FUNCTIONS THE ATTORNEY GENERAL HAS
RECENTLY SUCCEEDED,  FN2  VESTED IN HIMSELF ALL RIGHT, TITLE AND
INTEREST OF THE GERMAN NATIONALS IN THE ESTATE OF THIS DECEDENT.  FN3
HE THEREUPON INSTITUTED THIS ACTION IN THE DISTRICT COURT AGAINST THE
EXECUTOR UNDER THE WILL AND THE CALIFORNIA HEIRS-AT-LAW FOR A
DETERMINATION THAT THEY HAD NO INTEREST IN THE ESTATE AND THAT HE WAS
ENTITLED TO THE ENTIRE NET ESTATE, AFTER PAYMENT OF ADMINISTRATION AND
OTHER EXPENSES.  THE DISTRICT COURT GRANTED JUDGMENT FOR THE CUSTODIAN
ON THE PLEADINGS.  52 F.SUPP.  850.  THE CIRCUIT COURT OF APPEALS
REVERSED, HOLDING THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION OF
THE SUBJECT MATTER.  147 F.2D 136.  THE CASE CAME HERE ON CERTIORARI. 
WE HELD THAT THE DISTRICT COURT HAD JURISDICTION OF THE SUIT AND
REMANDED THE CAUSE TO THE CIRCUIT COURT OF APPEALS FOR CONSIDERATION OF
THE MERITS.  326 U.S. 490.  THE CIRCUIT COURT OF APPEALS THEREUPON HELD
FOR RESPONDENTS.  156 F.2D 653.  THE CASE IS HERE AGAIN ON A PETITION
FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE THE ISSUES RAISED ARE
OF NATIONAL IMPORTANCE. 

FIRST.  OUR PROBLEM STARTS WITH THE TREATY OF FRIENDSHIP, COMMERCE
AND CONSULAR RIGHTS WITH GERMANY, SIGNED DECEMBER 8, 1923, AND
PROCLAIMED OCTOBER 14, 1925.  44 STAT. 2132.  IT HAS DIFFERENT
PROVISIONS GOVERNING THE TESTAMENTARY DISPOSITION OF REALTY AND
PERSONALTY, WHICH WE WILL TREAT SEPARATELY.  THE ONE PERTAINING TO
REALTY, CONTAINED IN ARTICLE IV, READS AS FOLLOWS: 

"WHERE, ON THE DEATH OF ANY PERSON HOLDING REAL OR OTHER IMMOVABLE
PROPERTY OR INTERESTS THEREIN WITHIN THE TERRITORIES OF ONE HIGH
CONTRACTING PARTY, SUCH PROPERTY OR INTERESTS THEREIN WOULD, BY THE
LAWS OF THE COUNTRY OR BY A TESTAMENTARY DISPOSITION, DESCEND OR PASS
TO A NATIONAL OF THE OTHER HIGH CONTRACTING PARTY, WHETHER RESIDENT OR
NON-RESIDENT, WERE HE NOT DISQUALIFIED BY THE LAWS OF THE COUNTRY WHERE
SUCH PROPERTY OR INTERESTS THEREIN IS OR ARE SITUATED, SUCH NATIONAL
SHALL BE ALLOWED A TERM OF THREE YEARS IN WHICH TO SELL THE SAME, THIS
TERM TO BE REASONABLY PROLONGED IF CIRCUMSTANCES RENDER IT NECESSARY,
AND WITHDRAW THE PROCEEDS THEREOF, WITHOUT RESTRAINT OR INTERFERENCE,
AND EXEMPT FROM ANY SUCCESSION, PROBATE OR ADMINISTRATIVE DUTIES OR
CHARGES OTHER THAN THOSE WHICH MAY BE IMPOSED IN LIKE CASES UPON THE
NATIONALS OF THE COUNTRY FROM WHICH SUCH PROCEEDS MAY BE DRAWN." 

THE RIGHTS SECURED ARE IN TERMS A RIGHT TO SELL WITHIN A SPECIFIED
TIME PLUS A RIGHT TO WITHDRAW THE PROCEEDS AND AN EXEMPTION FROM
DISCRIMINATORY TAXATION.  IT IS PLAIN THAT THOSE RIGHTS EXTEND TO THE
GERMAN HEIRS OF "ANY PERSON" HOLDING REALTY IN THE UNITED STATES.  AND
THOUGH THEY ARE NOT EXPRESSED IN TERMS OF OWNERSHIP OR THE RIGHT TO
INHERIT, THAT IS THEIR IMPORT AND MEANING.  TECHT V. HUGHES, 229 N.Y.
222, 240, 128 N.E. 185, 191; AHRENS V. AHRENS, 144 IOWA 486, 489, 123
N.W. 164, 166.  AND SEE PEOPLE V. GERKE, 5 CAL. 381; SCHARPF V.
SCHMIDT, 172 ILL. 255, 50 N.E. 182; COLSON V. CARLSON, 116 KAN. 593,
227 P. 360; GOOS V. BROCKS, 117 NEB. 750, 223 N.W. 13. 

IF, THEREFORE, THE PROVISIONS OF THE TREATY HAVE NOT BEEN SUPERSEDED
OR ABROGATED, THEY PREVAIL OVER ANY REQUIREMENTS OF CALIFORNIA LAW
WHICH CONFLICT WITH THEM.  HAUENSTEIN V. LYNHAM, 100 U.S. 483, 488
490. 

SECOND.  THE CIRCUIT COURT OF APPEALS CONCLUDED THAT THESE PROVISIONS
OF THE TREATY HAD BEEN ABROGATED.  IT RELIED FOR THAT CONCLUSION ON THE
TRADING WITH THE ENEMY ACT, 40 STAT. 411, 50 U.S.C. APP. SEC. 1 ET
SEQ., AS AMENDED BY THE FIRST WAR POWERS ACT, 55 STAT. 839, 50 U.S.C.
APP. (SUPP. I, 1941) SEC. 5, AND THE TREATY OF BERLIN, 42 STAT. 1939. 

WE START FROM THE PREMISE THAT THE OUTBREAK OF WAR DOES NOT
NECESSARILY SUSPEND OR ABROGATE TREATY PROVISIONS.  SOCIETY FOR THE
PROPAGATION OF THE GOSPEL V. NEW HAVEN, 8 WHEAT.  464, 494-495.  THERE
MAY OF COURSE BE SUCH AN INCOMPATIBILITY BETWEEN A PARTICULAR TREATY
PROVISION AND THE MAINTENANCE OF A STATE OF WAR AS TO MAKE CLEAR THAT
IT SHOULD NOT BE ENFORCED.  KARNUTH V. UNITED STATES, 279 U.S. 231.  OR
THE CHIEF EXECUTIVE OR THE CONGRESS MAY HAVE FORMULATED A NATIONAL
POLICY QUITE INCONSISTENT WITH THE ENFORCEMENT OF A TREATY IN WHOLE OR
IN PART.  THIS WAS THE VIEW STATED IN TECHT V. HUGHES, SUPRA, AND WE
BELIEVE IT TO BE THE CORRECT ONE.  THAT CASE CONCERNED THE RIGHT OF A
RESIDENT ALIEN ENEMY TO INHERIT REAL PROPERTY IN NEW YORK.  UNDER NEW
YORK LAW, AS IT THEN STOOD, AN ALIEN ENEMY HAD NO SUCH RIGHT.  THE
QUESTION WAS WHETHER THE RIGHT WAS GRANTED BY A RECIPROCAL INHERITANCE
PROVISION IN A TREATY WITH AUSTRIA WHICH WAS COUCHED IN TERMS
PRACTICALLY IDENTICAL WITH THOSE WE HAVE HERE.  THE COURT FOUND NOTHING
INCOMPATIBLE WITH NATIONAL POLICY IN PERMITTING THE RESIDENT ALIEN
ENEMY TO HAVE THE RIGHT OF INHERITANCE GRANTED BY THE TREATY.  CARDOZO,
J., SPEAKING FOR THE COURT, STATED THE APPLICABLE PRINCIPLES AS
FOLLOWS: 

"THE QUESTION IS NOT WHAT STATES MAY DO AFTER WAR HAS SUPERVENED, AND
THIS WITHOUT BREACH OF THEIR DUTY AS MEMBERS OF THE SOCIETY OF
NATIONS.  THE QUESTION IS WHAT COURTS ARE TO PRESUME THAT THEY HAVE
DONE.  ...  PRESIDENT AND SENATE MAY DENOUNCE THE TREATY, AND THUS
TERMINATE ITS LIFE.  CONGRESS MAY ENACT AN INCONSISTENT RULE, WHICH
WILL CONTROL THE ACTION OF THE COURTS (FONG YUE TING V. U.S., 149 U.S.
698).  THE TREATY OF PEACE ITSELF MAY SET UP NEW RELATIONS, AND
TERMINATE EARLIER COMPACTS EITHER TACITLY OR EXPRESSLY.  ...  BUT UNTIL
SOME ONE OF THESE THINGS IS DONE, UNTIL SOME ONE OF THESE EVENTS
OCCURS, WHILE WAR IS STILL FLAGRANT, AND THE WILL OF THE POLITICAL
DEPARTMENTS OF THE GOVERNMENT UNREVEALED, THE COURTS, AS I VIEW THEIR
FUNCTION, PLAY A HUMBLER AND MORE CAUTIOUS PART.  IT IS NOT FOR THEM TO
DENOUNCE TREATIES GENERALLY, EN BLOC.  THEIR PART IT IS, AS ONE
PROVISION OR ANOTHER IS INVOLVED IN SOME ACTUAL CONTROVERSY BEFORE
THEM, TO DETERMINE WHETHER, ALONE, OR BY FORCE OF CONNECTION WITH AN
INSEPARABLE SCHEME, THE PROVISION IS INCONSISTENT WITH THE POLICY OR
SAFETY OF THE NATION IN THE EMERGENCY OF WAR, AND HENCE PRESUMABLY
INTENDED TO BE LIMITED TO TIMES OF PEACE.  THE MERE FACT THAT OTHER
PORTIONS OF THE TREATY ARE SUSPENDED OR EVEN ABROGATED IS NOT
CONCLUSIVE.  THE TREATY DOES NOT FALL IN ITS ENTIRETY UNLESS IT HAS THE
CHARACTER OF AN INDIVISIBLE ACT."  229 N.Y. PP. 242-243, 128 N.E. P.
192. 

TO THE SAME EFFECT SEE GOOS V. BROCKS, SUPRA; STATE V. REARDON, 120
KAN. 614, 245 P. 158.  FN4 

WE DO NOT THINK THAT THE NATIONAL POLICY EXPRESSED IN THE TRADING
WITH THE ENEMY ACT, AS AMENDED, IS INCOMPATIBLE WITH THE RIGHT OF
INHERITANCE GRANTED GERMAN ALIENS UNDER ARTICLE IV OF THE TREATY.  IT
IS TRUE THAT SINCE THE DECLARATION OF WAR ON DECEMBER 11, 1941(55 STAT.
796), THE ACT AND THE EXECUTIVE ORDERS ISSUED THEREUNDER HAVE
PROHIBITED THE ENTRY OF GERMAN NATIONALS INTO THIS COUNTRY,  FN5  HAVE
OUTLAWED COMMUNICATIONS OR TRANSACTIONS OF A COMMERCIAL CHARACTER WITH
THEM,  FN6  AND HAVE PRECLUDED THE REMOVAL OF MONEY OR PROPERTY FROM
THIS COUNTRY FOR THEIR USE OR ACCOUNT.  FN7  WE ASSUME THAT THESE
PROVISIONS ABROGATE THE PARTS OF ARTICLE IV OF THE TREATY DEALING WITH
THE LIQUIDATION OF THE INHERITANCE AND THE WITHDRAWAL OF THE PROCEEDS,
EVEN THOUGH THE ACT PROVIDES THAT THE PROHIBITED ACTIVITIES AND
TRANSACTIONS MAY BE LICENSED.  FN8  BUT THE ACT AND THE EXECUTIVE
ORDERS DO NOT EVINCE SUCH HOSTILITY TO OWNERSHIP OF PROPERTY BY ALIEN
ENEMIES AS TO IMPLY THAT ITS ACQUISITION CONFLICTS WITH THE NATIONAL
POLICY.  THERE IS, INDEED, TACIT RECOGNITION THAT ACQUISITION OF
PROPERTY BY INHERITANCE IS COMPATIBLE WITH THE SCHEME OF THE ACT.  FOR
THE CUSTODIAN IS EXPRESSLY EMPOWERED TO REPRESENT THE ALIEN ENEMY HEIR
IN ALL LEGAL PROCEEDINGS, INCLUDING THOSE INCIDENT TO SUCCESSION.  FN9
MUCH RELIANCE FOR THE CONTRARY VIEW IS PLACED ON THE POWER TO VEST
ALIEN PROPERTY IN AN AGENCY OF THE UNITED STATES.  FN10  BUT THE POWER
TO VEST, I.E., TO TAKE AWAY, WHAT MAY BE OWNED OR ACQUIRED DOES NOT
REVEAL A POLICY AT ODDS WITH THE RECIPROCAL RIGHT TO INHERIT GRANTED BY
ARTICLE IV OF THE TREATY.  FOR THE POWER TO VEST IS DISCRETIONARY NOT
MANDATORY.  THE LOSS OF THE INHERITANCE BY VESTING IS, THEREFORE, NOT
INEVITABLE.  BUT MORE IMPORTANT, VESTING DOES NOT NECESSARILY DEPRIVE
THE ALIEN ENEMY OF ALL THE BENEFITS OF HIS INHERITANCE.  IF HE OWES
MONEY TO AMERICAN CREDITORS, THE PROPERTY WILL BE APPLIED TO THE
PAYMENT OF HIS DEBTS.  FN11 

TO GIVE THE POWER TO VEST THE EFFECT WHICH RESPONDENTS URGE WOULD,
INDEED, PROVE TOO MUCH.  THAT POWER IS NOT RESTRICTED TO PROPERTY OF
ALIEN ENEMIES.  IT EXTENDS TO THE PROPERTY OF NATIONALS OF ANY FOREIGN
COUNTRY, FRIEND OR ENEMY.  FN12 PROVISIONS COMPARABLE TO THAT CONTAINED
IN ARTICLE IV OF THE PRESENT TREATY ARE FOUND IN EXISTING TREATIES WITH
FRIENDLY NATIONS.  FN13  WE WILL NOT READILY ASSUME THAT WHEN CONGRESS
ENACTED SEC. 5(B) AND AUTHORIZED THE VESTING OF PROPERTY, IT HAD A
PURPOSE TO ABROGATE ALL SUCH TREATY CLAUSES.  CF. COOK V. UNITED
STATES, 288 U.S. 102, 120.  YET IF THE POWER TO VEST IS INCONSISTENT
WITH THE RIGHT OF INHERITANCE OF AN ALIEN ENEMY, IT IS DIFFICULT TO SEE
WHY IT IS ANY LESS SO WHEN OTHER ALIENS ARE INVOLVED.  FINALLY, THERE
IS A DISTINCTION BETWEEN THE ACQUISITION OF PROPERTY AND THE USE
THEREOF WHICH SEC. 5(B) ITSELF RECOGNIZES.  THAT SECTION NOT ONLY
GRANTS THE PRESIDENT THE POWER TO VEST; IT LIKEWISE GRANTS HIM
AUTHORITY UNDER THE SAME CIRCUMSTANCES TO "PREVENT OR PROHIBIT, ANY
ACQUISITION  ...  OF  ...  ANY PROPERTY IN WHICH ANY FOREIGN COUNTRY OR
A NATIONAL THEREOF HAS ANY INTEREST  ...  " SEC. 5(B)(1)(B).  NO ACTION
HAS BEEN TAKEN TO PREVENT OR PROHIBIT THE ACQUISITION OF PROPERTY BY
INHERITANCE ON THE PART OF ENEMY ALIENS.  THE GRANT OF EXPRESS POWER TO
CUT OFF, INTER ALIA, THE RIGHT OF INHERITANCE AND THE NON-EXERCISE OF
THE POWER LEND SUPPORT TO THE VIEW THAT THE TRADING WITH THE ENEMY ACT,
AS AMENDED, DID NOT WITHOUT MORE SUSPEND OR ABROGATE ARTICLE IV OF THE
PRESENT TREATY.  THIS CONCLUSION SQUARES WITH THE GENERAL RULE STATED
IN KARNUTH V. UNITED STATES, SUPRA, P. 237, THAT TREATY PROVISIONS
"GIVING THE RIGHT TO CITIZENS OR SUBJECTS OF ONE OF THE HIGH
CONTRACTING POWERS TO CONTINUE TO HOLD AND TRANSMIT LAND IN THE
TERRITORY OF THE OTHER" SURVIVE THE OUTBREAK OF WAR. 

THE ARGUMENT BASED ON THE TREATY OF BERLIN IS INCONCLUSIVE.  THE
JOINT RESOLUTION OF JULY 2, 1921, 42 STAT. 105, 106, DECLARED THAT
PROPERTY OF GERMAN NATIONALS HELD BY THE UNITED STATES SHOULD BE
RETAINED AND NO DISPOSITION MADE OF IT, EXCEPT AS SPECIFICALLY PROVIDED
BY LAW, UNTIL THE GERMAN GOVERNMENT MADE SUITABLE PROVISION FOR THE
SATISFACTION OF CLAIMS OF AMERICAN NATIONALS AGAINST IT.  THUS ABSOLUTE
TITLE TO THE PROPERTY IN QUESTION BECAME VESTED IN THE UNITED STATES. 
CUMMINGS V. DEUTSCHE BANK, 300 U.S. 115.  THE TREATY OF BERLIN ACCORDED
THE UNITED STATES ALL RIGHTS AND ADVANTAGES SPECIFIED IN THE
RESOLUTION.  BUT THE TREATY OF 1828 WITH PRUSSIA CONTAINED A PROVISION
SUBSTANTIALLY SIMILAR TO ARTICLE IV OF THE PRESENT TREATY.  8 STAT.
378, 384, ART. XIV.  HENCE IT IS ARGUED THAT IF THE TREATY OF 1828
SURVIVED THE OUT-BREAK OF WAR AND THUS GUARANTEED PROPERTY RIGHTS IN
GERMAN NATIONALS BY WAY OF INHERITANCE DURING THAT WAR, IT WOULD NOT
HAVE BEEN NECESSARY TO HAVE NEGOTIATED A NEW CONVENTION COVERING THE
SAME GROUND IN 1923.  AND IT IS ALSO ARGUED THAT IF THE PROVISION IN
THE EARLIER TREATY DID NOT SURVIVE THE WAR, IT IS UNLIKELY THAT THE
SAME PARTIES WOULD INTEND LIKE PROVISIONS IN THE LATER TREATY TO HAVE A
DIFFERENT EFFECT.    THE ATTITUDE OF THE STATE DEPARTMENT HAS VARIED. 
IN 1918 SECRETARY LANSING EXPRESSED THE VIEW THAT SUCH TREATY
PROVISIONS WERE NOT IN FORCE DURING THE WAR WITH GERMANY AND AUSTRIA. 
FN14 TODAY THE DEPARTMENT APPARENTLY TAKES THE OTHER VIEW.  FN15  WE
HAVE NO RELIABLE EVIDENCE OF THE INTENTION OF THE HIGH CONTRACTING
PARTIES OUTSIDE THE WORDS OF THE PRESENT TREATY.  THE ATTITUDE AND
CONDUCT UNDER EARLIER TREATIES, REFLECTING AS THEY DID NUMEROUS
CONTINGENCIES AND CONDITIONS, LEAVE NO SURE GUIDE TO THE CONSTRUCTION
OF THE PRESENT TREATY.  WHERE THE RELEVANT HISTORICAL SOURCES AND THE
INSTRUMENT ITSELF GIVE NO PLAIN INDICATION THAT IT IS TO BECOME
INOPERATIVE IN WHOLE OR IN PART ON THE OUTBREAK OF WAR, WE ARE LEFT TO
DETERMINE, AS TECHT V. HUGHES, SUPRA, INDICATES, WHETHER THE PROVISION
UNDER WHICH RIGHTS ARE ASSERTED IS INCOMPATIBLE WITH NATIONAL POLICY IN
TIME OF WAR.  SO FAR AS THE RIGHT OF INHERITANCE OF REALTY UNDER
ARTICLE IV OF THE PRESENT TREATY IS CONCERNED, WE FIND NO
INCOMPATIBILITY WITH NATIONAL POLICY, FOR REASONS ALREADY GIVEN. 

IT IS ARGUED, HOWEVER, THAT THE TREATY OF 1923 WITH GERMANY MUST BE
HELD TO HAVE FAILED TO SURVIVE THE WAR, SINCE GERMANY, AS A RESULT OF
ITS DEFEAT AND THE OCCUPATION BY THE ALLIES, HAS CEASED TO EXIST AS AN
INDEPENDENT NATIONAL OR INTERNATIONAL COMMUNITY.  BUT THE QUESTION
WHETHER A STATE IS IN A POSITION TO PERFORM ITS TREATY OBLIGATIONS IS
ESSENTIALLY A POLITICAL QUESTION.  TERLINDEN V. AMES, 184 U.S. 270,
288.  WE FIND NO EVIDENCE THAT THE POLITICAL DEPARTMENTS HAVE
CONSIDERED THE COLLAPSE AND SURRENDER OF GERMANY AS PUTTING AN END TO
SUCH PROVISIONS OF THE AS SURVIVED THE OUTBREAK OF THE WAR OR THE
OBLIGATION OF EITHER PARTY IN RESPECT TO THEM.  THE ALLIED CONTROL
COUNCIL HAS, INDEED, ASSUMED CONTROL OF GERMANY'S FOREIGN AFFAIRS AND
TREATY OBLIGATIONS FN16  - A POLICY AND COURSE OF CONDUCT BY THE
POLITICAL DEPARTMENTS WHOLLY CONSISTENT WITH THE MAINTENANCE AND
ENFORCEMENT, RATHER THAN THE REPUDIATION, OF PRE-EXISTING TREATIES. 

THIRD.  THE PROBLEM OF THE PERSONALTY RAISES DISTINCT QUESTIONS. 
ARTICLE IV OF THE TREATY CONTAINS THE FOLLOWING PROVISION PERTAINING TO
IT: 

"NATIONALS OF EITHER HIGH CONTRACTING PARTY MAY HAVE FULL POWER TO
DISPOSE OF THEIR PERSONAL PROPERTY OF EVERY KIND WITHIN THE TERRITORIES
OF THE OTHER, BY TESTAMENT, DONATION, OR OTHERWISE, AND THEIR HEIRS,
LEGATEES AND DONEES, OF WHATSOEVER NATIONALITY, WHETHER RESIDENT OR NON
RESIDENT, SHALL SUCCEED TO SUCH PERSONAL PROPERTY, AND MAY TAKE
POSSESSION THEREOF, EITHER BY THEMSELVES OR BY OTHERS ACTING FOR THEM,
AND RETAIN OR DISPOSE OF THE SAME AT THEIR PLEASURE SUBJECT TO THE
PAYMENT OF SUCH DUTIES OR CHARGES ONLY AS THE NATIONALS OF THE HIGH
CONTRACTING PARTY WITHIN WHOSE TERRITORIES SUCH PROPERTY MAY BE OR
BELONG SHALL BE LIABLE TO PAY IN LIKE CASES." 

A PRACTICALLY IDENTICAL PROVISION OF THE TREATY OF 1844 WITH
WURTTEMBURG, ART. III, 8 STAT. 588, WAS BEFORE THE COURT IN
FREDERICKSON V. LOUISIANA, 23 HOW.  445.  IN THAT CASE THE TESTATOR WAS
A CITIZEN OF THE UNITED STATES, HIS LEGATEES BEING CITIZENS AND
RESIDENTS OF WURTTEMBERG.  LOUISIANA, WHERE THE TESTATOR WAS DOMICILED,
LEVIED A SUCCESSION TAX OF 10 PER CENT ON LEGATEES NOT DOMICILED IN THE
UNITED STATES.  THE COURT HELD THAT THE TREATY DID NOT COVER THE "CASE
OF A CITIZEN OR SUBJECT OF THE RESPECTIVE COUNTRIES RESIDING AT HOME,
AND DISPOSING OF PROPERTY THERE IN FAVOR OF A CITIZEN OR SUBJECT OF THE
OTHER  ...  "  PP. 447-448.  THAT DECISION WAS MADE IN 1860.  IN 1917
THE COURT FOLLOWED IT IN CASES INVOLVING THREE OTHER TREATIES. 
PETERSEN V. IOWA, 245 U.S. 170; DUUS V. BROWN, 245 U.S. 176; SKARDERUD
V. TAX COMMISSION, 245 U.S. 633. 

THE CONSTRUCTION ADOPTED BY THOSE CASES IS, TO SAY THE LEAST,
PERMISSIBLE WHEN THE SYNTAX OF THE SENTENCES DEALING WITH REALTY AND
PERSONALTY IS CONSIDERED.  SO FAR AS REALTY IS CONCERNED, THE TESTATOR
INCLUDES "ANY PERSON"; AND THE PROPERTY COVERED IS THAT WITHIN THE
TERRITORY OF EITHER OF THE HIGH CONTRACTING PARTIES.  IN CASE OF
PERSONALITY, THE PROVISION GOVERNS THE RIGHT OF "NATIONALS" OF EITHER
CONTRACTING PARTY TO DISPOSE OF THEIR PROPERTY WITHIN THE TERRITORY OF
THE "OTHER" CONTRACTING PARTY; AND IT IS "SUCH PERSONAL PROPERTY" THAT
THE "HEIRS, LEGATEES AND DONEES" ARE ENTITLED TO TAKE. 

PETITIONER, HOWEVER, PRESENTS A DETAILED ACCOUNT OF THE HISTORY OF
THE CLAUSE WHICH WAS NOT BEFORE THE COURT IN FREDERICKSON V. LOUISIANA,
SUPRA, AND WHICH BEARS OUT THE CONSTRUCTION THAT IT GRANTS THE FOREIGN
HEIR THE RIGHT TO SUCCEED TO HIS INHERITANCE OR THE PROCEEDS THEREOF. 
BUT WE DO NOT STOP TO REVIEW THAT HISTORY.  FOR THE CONSISTENT JUDICIAL
CONSTRUCTION OF THE LANGUAGE SINCE 1860 HAS GIVEN IT A CHARACTER WHICH
THE TREATY-MAKING AGENCIES HAVE NOT SEEN FIT TO ALTER.  AND THAT
CONSTRUCTION IS ENTIRELY CONSISTENT WITH THE PLAIN LANGUAGE OF THE
TREATY.  WE THEREFORE DO NOT DEEM IT APPROPRIATE TO CHANGE THAT
CONSTRUCTION AT THIS LATE DATE, EVEN THOUGH AS AN ORIGINAL MATTER THE
OTHER VIEW MIGHT HAVE MUCH TO COMMEND IT. 

WE ACCORDINGLY HOLD THAT ARTICLE IV OF THE TREATY DOES NOT COVER
PERSONALTY LOCATED IN THIS COUNTRY AND WHICH AN AMERICAN CITIZEN
UNDERTAKES TO LEAVE TO GERMAN NATIONALS.  WE DO NOT KNOW FROM THE
PRESENT RECORD THE NATIONALITY OF ALVINA WAGNER.  BUT SINCE THE ISSUE
ARISES ON THE GOVERNMENT'S MOTION FOR JUDGMENT ON THE PLEADINGS, WE
PROCEED ON THE ASSUMPTION LESS FAVORABLE TO IT, VIZ., THAT SHE WAS AN
AMERICAN CITIZEN. 

FOURTH.  IT IS ARGUED, HOWEVER, THAT EVEN THOUGH THE PROVISION OF THE
TREATY IS INAPPLICABLE, THE PERSONALTY MAY NOT BE DISPOSED OF PURSUANT
TO THE CALIFORNIA STATUTE BECAUSE THAT STATUTE IS UNCONSTITUTIONAL. 
ISSUES UNDER THE FOURTEENTH AMENDMENT ARE NOT RAISED AS IN TERRACE V.
THOMPSON, 263 U.S. 197.  THE CHALLENGE TO THE STATUTE IS THAT IT IS AN
EXTENSION OF STATE POWER INTO THE FIELD OF FOREIGN AFFAIRS, WHICH IS
EXCLUSIVELY RESERVED BY THE CONSTITUTION TO THE FEDERAL GOVERNMENT. 
THAT ARGUMENT IS BASED ON THE FACT THAT UNDER THE STATUTE THE RIGHT OF
NONRESIDENT ALIENS TO TAKE BY SUCCESSION OR TESTAMENTARY DISPOSITION IS
DEPENDENT UPON THE EXISTENCE OF A RECIPROCAL RIGHT ON THE PART OF
CITIZENS OF THE UNITED STATES TO TAKE PERSONALTY ON THE SAME TERMS AND
CONDITIONS AS RESIDENTS AND CITIZENS OF THE OTHER NATION.  FN17  THE
ARGUMENT IS THAT BY THIS METHOD CALIFORNIA SEEKS TO PROMOTE THE RIGHT
OF AMERICAN CITIZENS TO INHERIT ABROAD BY OFFERING TO ALIENS RECIPROCAL
RIGHTS OF INHERITANCE IN CALIFORNIA.  SUCH AN OFFER OF RECIPROCAL
ARRANGEMENTS IS SAID TO BE A MATTER FOR SETTLEMENT BY THE FEDERAL
GOVERNMENT ON A NATION-WIDE BASIS. 

IN BLYTHE V. HINCKLEY, 180 U.S. 333, CALIFORNIA HAD GRANTED ALIENS AN
UNQUALIFIED RIGHT TO INHERIT PROPERTY WITHIN ITS BORDERS.  THE ALIEN
CLAIMANT WAS A CITIZEN OF GREAT BRITAIN WITH WHOM THE UNITED STATES HAD
NO TREATY PROVIDING FOR INHERITANCE BY ALIENS IN THIS COUNTRY.  THE
ARGUMENT WAS THAT A GRANT OF RIGHTS TO ALIENS BY A STATE WAS, IN
ABSENCE OF A TREATY, A FORBIDDEN ENTRY INTO FOREIGN AFFAIRS.  THE COURT
REJECTED THE ARGUMENT AS BEING AN EXTRAORDINARY ONE.  THE OBJECTION TO
THE PRESENT STATUTE IS EQUALLY FARFETCHED. 

RIGHTS OF SUCCESSION TO PROPERTY ARE DETERMINED BY LOCAL LAW.  SEE
LYETH V. HOEY, 305 U.S. 188, 193; IRVING TRUST CO. V. DAY, 314 U.S.
556, 562.  THOSE RIGHTS MAY BE AFFECTED BY AN OVERRIDING FEDERAL
POLICY, AS WHERE A TREATY MAKES DIFFERENT OR CONFLICTING ARRANGEMENTS. 
HAUENSTEIN V. LYNHAM, SUPRA.  THEN THE STATE POLICY MUST GIVE WAY.  CF.
HINES V. DAVIDOWITZ, 312 U.S. 52.  BUT HERE THERE IS NO TREATY
GOVERNING THE RIGHTS OF SUCCESSION TO THE PERSONAL PROPERTY.  NOR HAS
CALIFORNIA ENTERED THE FORBIDDEN DOMAIN OF NEGOTIATING WITH A FOREIGN
COUNTRY, UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304, 316-17,
OR MAKING A COMPACT WITH IT CONTRARY TO THE PROHIBITION OF ARTICLE I,
SOME INCIDENTAL OR INDIRECT EFFECT IN FOREIGN COUNTRIES.  BUT THAT IS
TRUE OF MANY STATE LAWS WHICH NONE WOULD CLAIM CROSS THE FORBIDDEN
LINE. 

IN SUMMARY, WE HOLD THAT DISPOSITION OF THE REALTY IS GOVERNED BY
ARTICLE IV OF THE TREATY.  DISPOSITION OF THE PERSONALTY, HOWEVER, IS
NOT GOVERNED BY THE TREATY UNLESS IT IS DETERMINED THAT ALVINA WAGNER
WAS A GERMAN NATIONAL.  IF SHE WAS AN AMERICAN CITIZEN, DISPOSITION OF
THE PERSONALTY IS GOVERNED BY CALIFORNIA LAW.  WHETHER THERE ARE OTHER
REQUIREMENTS OF THE CALIFORNIA STATUTE WHICH WOULD BAR THE CALIFORNIA
HEIRS-AT-LAW IS A QUESTION ON WHICH WE INTIMATE NO OPINION. 

THE JUDGMENT IS REVERSED IN PART AND AFFIRMED IN PART, AND THE CAUSE
IS REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS IN CONFORMITY WITH
THIS OPINION.  SO ORDERED. 

FN1  SECTION 259, CALIFORNIA PROBATE CODE, IN 1942 PROVIDED: 

"THE RIGHTS OF ALIENS NOT RESIDING WITHIN THE UNITED STATES OR ITS
TERRITORIES TO TAKE EITHER REAL OR PERSONAL PROPERTY OR THE PROCEEDS
THEREOF IN THIS STATE BY SUCCESSION OR TESTAMENTARY DISPOSITION, UPON
THE SAME TERMS AND CONDITIONS AS RESIDENTS AND CITIZENS OF THE UNITED
STATES IS DEPENDENT IN EACH CASE UPON THE EXISTENCE OF A RECIPROCAL
RIGHT UPON THE PART OF CITIZENS OF THE UNITED STATES TO TAKE REAL AND
PERSONAL PROPERTY AND THE PROCEEDS THEREOF UPON THE SAME TERMS AND
CONDITIONS AS RESIDENTS AND CITIZENS OF THE RESPECTIVE COUNTRIES OF
WHICH SUCH ALIENS ARE INHABITANTS AND CITIZENS AND UPON THE RIGHTS OF
CITIZENS OF THE UNITED STATES TO RECEIVE BY PAYMENT TO THEM WITHIN THE
UNITED STATES OR ITS TERRITORIES MONEY ORIGINATING FROM THE ESTATES OF
PERSONS DYING WITHIN SUCH FOREIGN COUNTRIES." 


"IF SUCH RECIPROCAL RIGHTS ARE NOT FOUND TO EXIST AND IF NO HEIRS
OTHER THAN SUCH ALIENS ARE FOUND ELIGIBLE TO TAKE SUCH PROPERTY, THE
PROPERTY SHALL BE DISPOSED OF AS ESCHEATED PROPERTY." 

THE CONDITION WITH RESPECT TO RECEIPT OF MONEYS IN THE UNITED STATES
WAS REPEALED IN 1945, WHILE THIS CASE WAS PENDING.  CAL. STATS. 1945,
C. 1160, SEC. 1, EFFECTIVE SEPTEMBER 15, 1945.  UNDER THE ORIGINAL ACT,
THE NON-RESIDENT ALIENS HAD THE BURDEN OF ESTABLISHING THE FACT OF
EXISTENCE OF THE RECIPROCAL RIGHTS.  SEC. 259.1.  BY THE 1945 AMENDMENT
THE BURDEN OF ESTABLISHING THE NON-EXISTENCE OF SUCH RECIPROCAL RIGHT
WAS PLACED ON HIM WHO CHALLENGED THE RIGHT OF THE NON-RESIDENT ALIENS
TO TAKE.  SECTION 259.2 WAS REPEALED. 

FN2  EXEC. ORDER NO. 9788, OCT. 15, 1946, 11 FED. REG. 11981. 

FN3  VESTING ORDER NO. 762, 8 FED. REG. 1252. 

FN4  FOR A RECENT REVIEW OF THE AUTHORITIES SEE LENOIR, THE EFFECT OF
WAR ON BILATERAL TREATIES, 34 GEO. L.J. 129. 

FN5  SEC. 3(B). 

FN6  SEC. 3(A). 

FN7  SEC. 7(C); SEC. 5(B), AS AMENDED; EXEC. ORDER NO. 8785, 3 C.F.R.
CUM. SUPP. 948. 

FN8  SEC. 5(A). 

FN9  EXEC. ORDER NO. 9193, P5, 3 C.F.R. CUM. SUPP. 1174, 1176. 

FN10  SECTION 5(B)(1), AS AMENDED, PROVIDES IN PART: 

"DURING THE TIME OF WAR OR DURING ANY OTHER PERIOD OF NATIONAL
EMERGENCY DECLARED BY THE PRESIDENT  ...  ANY PROPERTY OR INTEREST OF
ANY FOREIGN COUNTRY OR NATIONAL THEREOF SHALL VEST, WHEN, AS, AND UPON
THE TERMS, DIRECTED BY THE PRESIDENT, IN SUCH AGENCY OR PERSON AS MAY
BE DESIGNATED FROM TIME TO TIME BY THE PRESIDENT, AND UPON SUCH TERMS
AND CONDITIONS AS THE PRESIDENT MAY PRESCRIBE SUCH INTEREST OR PROPERTY
SHALL BE HELD, USED, ADMINISTERED, LIQUIDATED, SOLD, OR OTHERWISE DEALT
WITH IN THE INTEREST OF AND FOR THE BENEFIT OF THE UNITED STATES, AND
SUCH DESIGNATED AGENCY OR PERSON MAY PERFORM ANY AND ALL ACTS INCIDENT
TO THE ACCOMPLISHMENT OR FURTHERANCE OF THESE PURPOSES  ...  " 

FN11  60 STAT. 925, ADDING SEC. 34 TO THE TRADING WITH THE ENEMY
ACT. 

FN12  SEE NOTE 10, SUPRA. 

FN13  TREATY WITH GREAT BRITAIN, ARTS. I, II, MARCH 2, 1899, 31 STAT.
1939.  TREATY WITH NORWAY, ART. IV, JUNE 5, 1928, 47 STAT. 2135, 2138. 

FN14  U.S. FOREIGN REL., 1918 SUPP. 2, P. 309(DEPT.  STATE 1933); VI
HACKWORTH, DIGEST OF INTERNATIONAL LAW (1943) P. 327. 

FN15  LETTER TO THE ATTORNEY GENERAL FROM ACTING SECRETARY OF STATE,
JOSEPH C. GREW, DATED MAY 21, 1945, COMMENTING ON THE GOVERNMENT'S
POSITION IN THE PRESENT LITIGATION. 

FN16  THE AXIS IN DEFEAT, STATE DEPT. PUB. NO. 2423, PP. 71, 72, 77. 

FN17  SEE NOTE 1, SUPRA. 

MR. JUSTICE RUTLEDGE, CONCURRING IN PART. 

I JOIN IN THE COURT'S OPINION INSOFAR AS IT RELATES TO THE REAL
ESTATE.  BUT, AS TO THE PERSONAL PROPERTY, I THINK THE CAUSE SHOULD BE
REMANDED TO THE DISTRICT COURT FOR DETERMINATION OF ALVINA WAGNER'S
NATIONALITY, WITHOUT EXPRESSION OF OPINION HERE UPON THE
CONSTITUTIONALITY OF THE CALIFORNIA STATUTE. 

THE DECISION NOW MADE ON THAT ISSUE, BY VIRTUE OF THE COURT'S
HYPOTHESIZING THAT SHE WAS AN AMERICAN CITIZEN, WILL BE RENDERED BOTH
MOOT AND ADVISORY IN CHARACTER IF IT IS FOUND, AS IT MAY WELL BE IN THE
DISTRICT COURT'S FURTHER PROCEEDINGS, THAT SHE WAS A GERMAN NATIONAL. 
THIS COURT HAS CONSISTENTLY DECLINED TO DECIDE CONSTITUTIONAL QUESTIONS
ON HYPOTHETICAL PRESENTATIONS.  RESCUE ARMY V. MUNICIPAL COURT, 331
U.S. 549.  THE PRACTICE SHOULD BE FOLLOWED IN THIS CASE, EVEN THOUGH
CONCEIVABLY ANOTHER APPEAL MIGHT BE SAVED BY INDULGING THE PRESUMPTION
WHICH THE COURT MAKES.  IT IS MORE IMPORTANT THAT CONSTITUTIONAL
DECISIONS BE RESERVED UNTIL THE ISSUES CALLING FOR THEM ARE SQUARELY
AND INESCAPABLY PRESENTED, FACTUALLY AS WELL AS LEGALLY, THAN IT IS TO
EXPEDITE THE TERMINATION OF LITIGATION OR THE PROCEDURAL CONVENIENCE OF
THE PARTIES. 
..END :

















RAILROAD TRAINMEN V. B. & O.R. CO., 331 U.S. 519 


NO. 970.  ARGUED MAY 6, 1947.  - DECIDED JUNE 9, 1947.  - REVERSED. 


1.  UNDER SEC. 17(11) OF THE INTERSTATE COMMERCE ACT, AS AMENDED BY
THE TRANSPORTATION ACT OF 1940, A UNION DULY DESIGNATED AS THE
REPRESENTATIVE OF EMPLOYEES OF A RAILROAD IS GIVEN AN ABSOLUTE RIGHT,
WITHIN THE MEANING OF RULE 24(A)(1) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, TO INTERVENE IN A SUIT BROUGHT UNDER SEC. 16(12) TO ENJOIN
THE RAILROAD AND ITS EMPLOYEES FROM VIOLATING AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION, WHERE THE INJUNCTION SOUGHT WOULD
PREVENT THE RAILROAD FROM CARRYING OUT A CONTRACT WITH THE UNION AND
WAS DIRECTED IN PART AGAINST THE EMPLOYEES.  PP. 525-526. 

(A)  THE RIGHT OF INTERVENTION GRANTED TO REPRESENTATIVES OF
EMPLOYEES OF CARRIERS BY SEC. 17(11) APPLIES TO A COURT PROCEEDING
UNDER SEC. 16(12) AND NOT MERELY TO PROCEEDINGS BEFORE THE COMMISSION. 
PP. 526-530. 

(B)  THE RIGHT TO INTERVENE GRANTED BY SEC. 17(11) IS ABSOLUTE AND
NOT MERELY PERMISSIVE.  PP. 530-532. 

(C)  A SUIT IS ONE "AFFECTING SUCH EMPLOYEES," WITHIN THE MEANING OF
SEC. 17(11), IF THE EMPLOYEES WOULD BE PREJUDICED OR BOUND BY ANY
JUDGMENT THAT MIGHT BE ENTERED IN THE CASE.  PP. 530, 531. 

2.  AN ORDER OF A DISTRICT COURT DENYING A UNION THE RIGHT UNDER SEC.
17(11) TO INTERVENE IN SUCH A CASE IS APPEALABLE TO THIS COURT, WHICH
HAS JURISDICTION TO CONSIDER THE APPEAL ON ITS MERITS.  PP. 524-525,
531-532. 

BROTHERHOOD OF RAILROAD TRAINMEN V. BALTIMORE & OHIO RAILROAD CO. ET
AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN DIVISION. 

A DISTRICT COURT DENIED A PETITION OF A UNION OF RAILROAD EMPLOYEES
TO INTERVENE UNDER SEC. 17(11) OF THE INTERSTATE COMMERCE ACT AND RULE
24(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE IN A SUIT BROUGHT UNDER
SEC. 16(12) TO ENJOIN THE RAILROAD AND ITS EMPLOYEES FROM VIOLATING AN
ORDER OF THE INTERSTATE COMMERCE COMMISSION.  ON APPEAL TO THIS COURT,
REVERSED, P. 532. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

OUR CONCERN HERE IS WITH THE INTERVENTION RIGHTS OF REPRESENTATIVES
OF RAILROAD EMPLOYEES IN A SUIT BROUGHT AGAINST THE RAILROAD UNDER SEC.
16(12) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 16(12). 

THE ORIGIN OF THIS SUIT IS TO BE FOUND IN AN ORDER ISSUED BY THE
INTERSTATE COMMERCE COMMISSION ON MAY 16, 1922.  CHICAGO JUNCTION CASE,
71 I.C.C. 631.  SEE ALSO CHICAGO JUNCTION CASE, 264 U.S. 258.  THE
COMMISSION THERE APPROVED THE PURCHASE BY THE NEW YORK CENTRAL RAILROAD
CO. (CENTRAL) OF ALL THE CAPITAL STOCK OF THE CHICAGO RIVER & INDIANA
RAILROAD CO. (RIVER ROAD); IT ALSO AUTHORIZED THE LEASING TO RIVER ROAD
OF ALL THE PROPERTIES OF THE CHICAGO JUNCTION RAILWAY CO. (JUNCTION)
FOR 99 YEARS AND THEREAFTER, AT THE LESSEE'S OPTION, IN PERPETUITY. 
AMONG THE PROPERTIES IN QUESTION WERE TRACKAGE AND SWITCHING FACILITIES
AT THE UNION STOCK YARDS, CHICAGO, ILLINOIS, CONNECTING WITH VARIOUS
TRUNK LINES.  PRIOR TO THE COMMISSION ORDER, THE PRACTICE HAD BEEN FOR
THE TRUNK LINE RAILROADS TO USE THEIR OWN POWER AND CREWS TO MOVE THEIR
EMPTY AND LOADED LIVESTOCK CARS OVER THESE TRACKS TO AND FROM THE
LOADING PLACES IN THE UNION STOCK YARDS.  FOR THE PRIVILEGE OF SO
MOVING THEIR CARS, THE RAILROADS WERE CHARGED $1.00 PER CAR, LOADED OR
EMPTY. 

THE COMMISSION MADE VARIOUS CONDITIONS TO ITS APPROVAL OF THE
PROPOSED TRANSACTIONS.  THE THIRD CONDITION PROVIDED:  "THE PRESENT
TRAFFIC AND OPERATING RELATIONSHIPS EXISTING BETWEEN THE JUNCTION AND
RIVER ROAD AND ALL CARRIERS OPERATING IN CHICAGO SHALL BE CONTINUED, IN
SO FAR AS SUCH MATTERS ARE WITHIN THE CONTROL OF THE CENTRAL."  71
I.C.C. AT 639.  THIS CONDITION IS STILL IN EFFECT, THE COMMISSION'S
DECISION AND ORDER HAVING BEEN FOUND TO BE VALID AND BINDING ON ALL
PARTIES IN A PROCEEDING IN THE DISTRICT COURT IN 1929.  FN1 

THE TRUNK LINE RAILROADS HAVE CONTINUED TO USE THEIR OWN POWER AND
CREWS IN MOVING THEIR LIVESTOCK CARS OVER THE TRACKAGE OPERATED BY
RIVER ROAD AND HAVE PAID RIVER ROAD THE AMOUNT OF $1.00 PER CAR.  BUT
ON JANUARY 25, 1946, CENTRAL AND RIVER ROAD NOTIFIED THE RAILROADS THAT
ON AND AFTER FEBRUARY 1, 1946, THE CARS WOULD BE MOVED OVER THIS
TRACKAGE BY MEANS OF THE POWER AND CREWS OF RIVER ROAD AND THAT THE
HANDLING CHARGE WOULD BE $12.96 PER OUTBOUND LOADED CAR.  SOON AFTER
THIS NEW PRACTICE WENT INTO EFFECT, THE TRUNK LINE RAILROADS (APPELLEES
HEREIN) BROUGHT THIS SUIT FOR PRELIMINARY AND PERMANENT INJUNCTIONS
UNDER SEC. 16(12) OF THE INTERSTATE COMMERCE ACT AGAINST CENTRAL, RIVER
ROAD AND JUNCTION.  THEY CLAIMED THAT THE NEW PRACTICE WAS IN VIOLATION
OF THE THIRD CONDITION OF THE 1922 COMMISSION ORDER.  THEY ACCORDINGLY
SOUGHT TO ENJOIN THE DEFENDANTS AND "THEIR RESPECTIVE OFFICERS, AGENTS,
REPRESENTATIVES, SERVANTS, EMPLOYEES AND SUCCESSORS," FROM DISOBEYING
THE ORDER, ESPECIALLY THE THIRD CONDITION THEREOF, AND TO FORCE THE
DEFENDANTS TO PERMIT THEM TO MOVE THEIR CARS WITH THEIR OWN POWER AND
CREWS.  THE COMMISSION WAS ALLOWED TO INTERVENT AS A PARTY PLAINTIFF;
ITS INTERVENING COMPLAINT ALSO PRAYED FOR AN INJUNCTION AGAINST THE
ALLEGED VIOLATION OF THE THIRD CONDITION BY THE DEFENDANTS AND THEIR
EMPLOYEES.  FN2 

A STIPULATION OF FACTS WAS THEN FILED.  AFTER DESCRIBING THE CHANGE
IN HANDLING THE CARS, IT POINTED OUT THAT THIS CHANGE RESULTED FROM A
SETTLEMENT BETWEEN THE RIVER ROAD AND THE BROTHERHOOD OF RAILROAD
TRAINMEN OF A LABOR DISPUTE OVER THE WORK INVOLVED IN THESE LIVESTOCK
CAR MOVEMENTS.  THE BROTHERHOOD WAS THE BARGAINING AGENT UNDER THE
RAILWAY LABOR ACT FOR THE RIVER ROAD TRAINMEN.  IT MADE A DEMAND, BASED
UPON ITS CONTRACT WITH RIVER ROAD, THAT THESE TRAINMEN BE GIVEN THE
WORK OF MOVING AND SWITCHING THE LIVESTOCK CARS OVER THE RIVER ROAD
TRACKAGE.  THE BROTHERHOOD THREATENED TO CALL A STRIKE UNLESS THIS
DEMAND WAS MET BEFORE 10:30 P.M., JANUARY 23, 1946, A THREAT THAT WAS
BACKED BY AN ALMOST UNANIMOUS STRIKE VOTE OF THE TRAINMEN.  UNDER THIS
THREAT, RIVER ROAD MADE AN AGREEMENT WITH THE BROTHERHOOD SHORTLY
BEFORE THE SCHEDULED STRIKE HOUR, AS A RESULT OF WHICH THE RIVER ROAD
TRAINMEN WERE TO BE PERMITTED TO MOVE AND SWITCH THE CARS.  THE NOTICE
TO THE TRUNK LINE RAILROADS OF THIS CHANGE IN PRACTICE SUBSEQUENTLY
FOLLOWED. 

THE DISTRICT COURT THEREUPON ISSUED A PRELIMINARY INJUNCTION AS
REQUESTED.  CENTRAL, RIVER ROAD AND JUNCTION, AND "THEIR RESPECTIVE
OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES AND SUCCESSORS," WERE
RESTRAINED FROM DISOBEYING THE 1922 COMMISSION ORDER AND FROM VIOLATING
THE THIRD CONDITION OF THAT ORDER AND WERE COMMANDED TO PERMIT THE
TRUNK LINE RAILROADS TO MOVE THEIR CARS OVER THE RIVER ROAD LINE WITH
THEIR OWN POWER AND CREWS.  THE COURT CONCLUDED, AS A MATTER OF LAW,
THAT THE FACTS RELATIVE TO THE LABOR DISPUTE BETWEEN THE BROTHERHOOD
AND RIVER ROAD WERE "IRRELEVANT AND IMMATERIAL."  FN3 

THREE DAYS AFTER THE PRELIMINARY INJUNCTION BECAME EFFECTIVE, THE
BROTHERHOOD ASKED LEAVE TO FILE ITS SPECIAL APPEARANCE FOR THE PURPOSE
OF MOVING TO VACATE THE INJUNCTION AND TO DISMISS THE PROCEEDINGS FOR
FAILURE TO JOIN THE BROTHERHOOD AND ITS MEMBERS AS INDISPENSABLE
PARTIES.  THIS MOTION WAS DENIED.  RIVER ROAD THEN FILED ITS ANSWER TO
THE ORIGINAL COMPLAINT, POINTING OUT THAT THE CHANGED ARRANGEMENT
RESULTED FROM THE LABOR DISPUTE WITH THE BROTHERHOOD AND CONTENDING
THAT THIS NEW PRACTICE DID NOT VIOLATE THE 1922 COMMISSION ORDER.  THE
BROTHERHOOD THEREAFTER FILED ITS MOTION TO INTERVENE GENERALLY AS A
PARTY DEFENDANT, ALLEGING THAT THE PRIMARY PURPOSE OF THE SUIT WAS TO
NULLIFY ITS AGREEMENT WITH RIVER ROAD AND TO DEPRIVE THE BROTHERHOOD
MEMBERS OF THE WORK THEY WERE PERFORMING UNDER THAT AGREEMENT AND THAT
THE BROTHERHOOD MEMBERS WERE THEREFORE INDISPENSABLE PARTIES.  THE
CONTENTION WAS MADE THAT THE BROTHERHOOD HAD AN UNCONDITIONAL RIGHT TO
INTERVENE BY VIRTUE OF SEC. 17(11) OF THE INTERSTATE COMMERCE ACT  FN4
AND RULE 24(A)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE; AND 28
U.S.C. SEC. 45A WAS LATER ADDED IN SUPPORT OF THIS CONTENTION.  BUT THE
MOTION TO INTERVENE WAS DENIED BY ORDER, WITHOUT OPINION. 

THE DISTRICT COURT THEN ALLOWED AN APPEAL TO THIS COURT FROM ITS
ORDER DENYING INTERVENTION.  THE APPELLEE RAILROADS MOVED TO DISMISS
THE APPEAL ON THE GROUND THAT SUCH AN ORDER WAS NOT FINAL AND HENCE WAS
NOT APPEALABLE, THE BROTHERHOOD NOT BEING ENTITLED TO INTERVENE AS A
MATTER OF RIGHT.  WE POSTPONED FURTHER CONSIDERATION OF THE QUESTION OF
OUR JURISDICTION TO REVIEW THE ORDER TO THE HEARING OF THE APPEAL UPON
THE MERITS. 

ORDINARILY, IN THE ABSENCE OF AN ABUSE OF DISCRETION, NO APPEAL LIES
FROM AN ORDER DENYING LEAVE TO INTERVENE WHERE INTERVENTION IS A
PERMISSIVE MATTER WITHIN THE DISCRETION OF THE COURT.  UNITED STATES V.
CALIFORNIA CANNERIES, 279 U.S. 553, 556.  FN5  THE PERMISSIVE NATURE OF
SUCH INTERVENTION NECESSARILY IMPLIES THAT, IF INTERVENTION IS DENIED,
THE APPLICANT IS NOT LEGALLY BOUND OR PREJUDICED BY ANY JUDGMENT THAT
MIGHT BE ENTERED IN THE CASE.  HE IS AT LIBERTY TO ASSERT AND PROTECT
HIS INTERESTS IN SOME MORE APPROPRIATE PROCEEDING.  HAVING NO ADVERSE
EFFECT UPON THE APPLICANT, THE ORDER DENYING INTERVENTION ACCORDINGLY
FALLS BELOW THE LEVEL OF APPEALABILITY.  BUT WHERE A STATUTE OR THE
PRACTICAL NECESSITIES GRANT THE APPLICANT AN ABSOLUTE RIGHT TO
INTERVENE, THE ORDER DENYING INTERVENTION BECOMES APPEALABLE.  THEN IT
MAY FAIRLY BE SAID THAT THE APPLICANT IS ADVERSELY AFFECTED BY THE
DENIAL, THERE BEING NO OTHER WAY IN WHICH HE CAN BETTER ASSERT THE
PARTICULAR INTEREST WHICH WARRANTS INTERVENTION IN THIS INSTANCE.  AND
SINCE HE CANNOT APPEAL FROM ANY SUBSEQUENT ORDER OR JUDGMENT IN THE
PROCEEDING UNLESS HE DOES INTERVENE, THE ORDER DENYING INTERVENTION HAS
THE DEGREE OF DEFINITIVENESS WHICH SUPPORTS AN APPEAL THEREFROM.  SEE
PIPE LINE CO. V. UNITED STATES, 312 U.S. 502, 508. 

OUR JURISDICTION TO CONSIDER AN APPEAL FROM AN ORDER DENYING
INTERVENTION THUS DEPENDS UPON THE NATURE OF THE APPLICANT'S RIGHT TO
INTERVENE.  IF THE RIGHT IS ABSOLUTE, THE ORDER IS APPEALABLE AND WE
MAY JUDGE IT ON ITS MERITS.  BUT IF THE MATTER IS ONE WITHIN THE
DISCRETION OF THE TRIAL COURT AND IF THERE IS NO ABUSE OF DISCRETION,
THE ORDER IS NOT APPEALABLE AND WE LACK POWER TO REVIEW IT.  IN OTHER
WORDS, OUR JURISDICTION IS IDENTIFIED BY THE NECESSARY INCIDENTS OF THE
RIGHT TO INTERVENE IN EACH PARTICULAR INSTANCE.  WE MUST THEREFORE
DETERMINE THE QUESTION OF OUR JURISDICTION IN THIS CASE BY EXAMINING
THE CHARACTER OF THE BROTHERHOOD'S RIGHT TO INTERVENE IN THE PROCEEDING
BROUGHT UNDER SEC. 16(12) OF THE INTERSTATE COMMERCE ACT. 

WE START WITH RULE 24(A) AND (B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, APPLICABLE TO A CIVIL PROCEEDING OF THIS TYPE.  RULE 24(A)
DEALS WITH INTERVENTION OF RIGHT AND PROVIDES IN PERTINENT PART:  "UPON
TIMELY APPLICATION ANYONE SHALL BE PERMITTED TO INTERVENE IN AN ACTION:
(1) WHEN A STATUTE OF THE UNITED STATES CONFERS AN UNCONDITIONAL RIGHT
TO INTERVENE; OR (2) WHEN THE REPRESENTATION OF THE APPLICANT'S
INTEREST BY EXISTING PARTIES IS OR MAY BE INADEQUATE AND THE APPLICANT
IS OR MAY BE BOUND BY A JUDGMENT IN THE ACTION; ...  "  IN CONTRAST,
RULE 24(B) IS CONCERNED WITH PERMISSIVE INTERVENTION AND READS AS
FOLLOWS:  "UPON TIMELY APPLICATION ANYONE MAY BE PERMITTED TO INTERVENE
IN AN ACTION:  (1) WHEN A STATUTE OF THE UNITED STATES CONFERS A
CONDITIONAL RIGHT TO INTERVENE; OR (2) WHEN AN APPLICANT'S CLAIM OR
DEFENSE AND THE MAIN ACTION HAVE A QUESTION OF LAW OR FACT IN COMMON. 
IN EXERCISING ITS DISCRETION THE COURT SHALL CONSIDER WHETHER THE
INTERVENTION WILL UNDULY DELAY OR PREJUDICE THE ADJUDICATION OF THE
RIGHTS OF THE ORIGINAL PARTIES." 

THE BROTHERHOOD CLAIMS THAT AS A CONSEQUENCE OF EITHER OF TWO FEDERAL
STATUTES - SEC. 17(11) OF THE INTERSTATE COMMERCE ACT OR 28 U.S.C. SEC.
45A - IT HAS AN ABSOLUTE RIGHT TO INTERVENE WITHIN THE MEANING OF RULE
24(A)(1).  IT ALSO ALLEGES THAT IT POSSESSES AN ABSOLUTE RIGHT WITHIN
THE CONTEMPLATION OF RULE 24(A)(2), THE REPRESENTATION OF ITS INTEREST
BY EXISTING PARTIES BEING INADEQUATE AND THE POSSIBILITY THAT IT MAY BE
BOUND BY A JUDGMENT IN THE ACTION BEING A REAL ONE.  NO CLAIM TO
PERMISSIVE INTERVENTION UNDER RULE 24(B) IS MADE; NOR IS THERE A
CONTENTION THAT THE DISTRICT COURT ABUSED ANY DISCRETION IT MIGHT HAVE
HAD. 

IN OUR VIEW, SEC. 17(11) OF THE INTERSTATE COMMERCE ACT DOES GIVE THE
BROTHERHOOD AN ABSOLUTE RIGHT TO INTERVENE IN THE INSTANT PROCEEDING
WITHIN THE MEANING OF RULE 24(A)(1).  AS SET FORTH IN 54 STAT. 916,
FN6  THIS PORTION OF THE ACT READS:  "REPRESENTATIVES OF EMPLOYEES OF A
CARRIER, DULY DESIGNATED AS SUCH, MAY INTERVENE AND BE HEARD IN ANY
PROCEEDING ARISING UNDER THIS ACT AFFECTING SUCH EMPLOYEES."  THE
FOLLOWING CONSIDERATIONS MAKE OBVIOUS THE FACT THAT THE BROTHERHOOD
MEETS ALL THE REQUIREMENTS OF THIS PROVISION: 

FIRST.  IT IS UNQUESTIONED THAT THE BROTHERHOOD IS THE DULY
DESIGNATED REPRESENTATIVE OF THE RIVER ROAD TRAINMEN. 

SECOND.  THE RIGHT OF INTERVENTION GRANTED TO SUCH A REPRESENTATIVE
BY SEC. 17(11) APPLIES TO A COURT PROCEEDING UNDER SEC. 16(12) OF THE
ACT, THE PLAIN LANGUAGE OF SEC. 17(11) EXTENDING ITS REACH TO "ANY
PROCEEDING ARISING UNDER THIS ACT." 

ON THIS POINT, HOWEVER, THE APPELLEE RAILROADS CONTEND THAT SEC.
17(11) MUST BE CONFINED TO PROCEEDINGS BEFORE THE INTERSTATE COMMERCE
COMMISSION, TO THE EXCLUSION OF COURT PROCEEDINGS.  IN SUPPORT OF THIS
CONTENTION, THEY POINT TO THE FACT THAT SEC. 17 AS A WHOLE IS PRIMARILY
CONCERNED WITH COMMISSION PROCEDURE AND ORGANIZATION.  THAT FACT IS
EMPHASIZED BY THE HEADING OF SEC. 17 AS IT APPEARS IN THE STATUTES AT
LARGE, 54 STAT. 913, AND THE U.S.C.  49 U.S.C. SEC. 17, A HEADING THAT
READS:  "COMMISSION PROCEDURE; DELEGATION OF DUTIES; REHEARINGS."  THE
INFERENCE IS THEN MADE THAT PARAGRAPH (11), WITH WHICH WE ARE
CONCERNED, MUST BE LIMITED BY THAT HEADING AND BY THE GENERAL CONTEXT
OF SEC. 17 AS A WHOLE.  THE RESULT OF THE CONTENTION IS THAT THE PHRASE
"ANY PROCEEDING ARISING UNDER THIS ACT," AS FOUND IN PARAGRAPH (11), IS
REWRITTEN BY CONSTRUCTION TO REFER ONLY TO "ANY PROCEEDING BEFORE THE
COMMISSION ARISING UNDER THIS SECTION." 

WE CANNOT SANCTION SUCH A CONSTRUCTION OF THESE WORDS.  IT IS TRUE,
OF COURSE, THAT SEC. 17 IS CONCERNED PRIMARILY WITH THE ORGANIZATION OF
THE COMMISSION AND ITS SUBDIVISIONS AND WITH THE ADMINISTRATIVE
DISPOSITION OF MATTERS COMING WITHIN THAT AGENCY'S JURISDICTION.  AT
LEAST TEN OF THE TWELVE PARAGRAPHS OF SEC. 17 DEAL WITH THOSE MATTERS. 
AND BEFORE SEC. 17 WAS CAST INTO ITS PRESENT FORM IN 1940, ALL FIVE OF
ITS PARAGRAPHS RELATED EXCLUSIVELY TO THOSE MATTERS.  CONGRESS REWROTE
THE SECTION WHEN IT ENACTED THE TRANSPORTATION ACT OF 1940, 54 STAT.
898, CONTINUING AND MODIFYING PREVIOUS PROVISIONS AND CONSOLIDATING AND
INCLUDING MATTERS WHICH HAD FORMERLY BEEN SCATTERED THROUGHOUT THE
ACT.  FN7  AT THE SAME TIME, HOWEVER, IT WAS EXPRESSLY RECOGNIZED THAT
CERTAIN PARAGRAPHS WERE BEING ADDED WHICH WERE ENTIRELY NEW, PARAGRAPHS
WHICH WENT BEYOND PURELY ADMINISTRATIVE MATTERS.  THUS THE PERTINENT
COMMITTEE REPORTS STATED  FN8  THAT "A NEW PARAGRAPH (9) IS INCLUDED
PROVIDING THAT ORDERS OF A DIVISION, AN INDIVIDUAL COMMISSIONER, OR A
BOARD SHALL BE SUBJECT TO JUDICIAL REVIEW AS IN THE CASE OF FULL
COMMISSION ORDERS, AFTER AN APPLICATION FOR REHEARING HAS BEEN MADE AND
ACTED UPON."  AND AS TO PARAGRAPH (11), IT WAS SAID  FN9  THAT "A NEW
PARAGRAPH IS ADDED AT THE END OF SECTION 17 PROVIDING THAT
REPRESENTATIVES OF EMPLOYEES OF A CARRIER MAY INTERVENE AND BE HEARD IN
ANY PROCEEDINGS ARISING UNDER PART I AFFECTING SUCH EMPLOYEES."  BY
SUCH LANGUAGE IN THEIR REPORTS, THE FRAMERS OF SEC. 17 RECOGNIZED THE
OBVIOUS FACT THAT CERTAIN PROVISIONS OF THAT SECTION DEAL WITH
SOMETHING MORE THAN MIGHT BE INDICATED BY THE HEADING. 

THAT THE HEADING OF SEC. 17 FAILS TO REFER TO ALL THE MATTERS WHICH
THE FRAMERS OF THAT SECTION WROTE INTO THE TEXT IS NOT AN UNUSUAL
FACT.  THAT HEADING IS BUT A SHORT-HAND REFERENCE TO THE GENERAL
SUBJECT MATTER INVOLVED.  WHILE ACCURATELY REFERRING TO THE SUBJECTS OF
COMMISSION PROCEDURE AND ORGANIZATION, IT NEGLECTS TO REVEAL THAT SEC.
17 ALSO DEALS WITH JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS AND WITH
INTERVENTION BY EMPLOYEE REPRESENTATIVES.  BUT HEADINGS AND TITLES ARE
NOT MEANT TO TAKE THE PLACE OF THE DETAILED PROVISIONS OF THE TEXT. 
NOR ARE THEY NECESSARILY DESIGNED TO BE A REFERENCE GUIDE OR A
SYNOPSIS.  WHERE THE TEXT IS COMPLICATED AND PROLIFIC, HEADINGS AND
TITLES CAN DO NO MORE THAN INDICATE THE PROVISIONS IN A MOST GENERAL
MANNER; TO ATTEMPT TO REFER TO EACH SPECIFIC PROVISION WOULD OFTEN BE
UNGAINLY AS WELL AS USELESS.  AS A RESULT, MATTERS IN THE TEXT WHICH
DEVIATE FROM THOSE FALLING WITHIN THE GENERAL PATTERN ARE FREQUENTLY
UNREFLECTED IN THE HEADINGS AND TITLES.  FACTORS OF THIS TYPE HAVE LED
TO THE WISE RULE THAT THE TITLE OF A STATUTE AND THE HEADING OF A
FISHER, 2 CRANCH 358, 386; CORNELL V. COYNE, 192 U.S. 418, 430;
STRATHEARN S.S. CO. V. DILLON, 252 U.S. 348, 354.  FOR INTERPRETATIVE
PURPOSES, THEY ARE OF USE ONLY WHEN THEY SHED LIGHT ON SOME AMBIGUOUS
WORD OR PHRASE.  THEY ARE BUT TOOLS AVAILABLE FOR THE RESOLUTION OF A
DOUBT.  BUT THEY CANNOT UNDO OR LIMIT THAT WHICH THE TEXT MAKES PLAIN. 

HERE THE MEANING OF SEC. 17(11) IS UNMISTAKABLE ON ITS FACE.  THERE
IS A SIMPLE, UNAMBIGUOUS REFERENCE TO "ANY PROCEEDING ARISING UNDER
THIS ACT" OR, AS THE HOUSE COMMITTEE PARAPHRASED IT, FN10  TO "ANY
PROCEEDINGS ARISING UNDER PART I."  THERE IS NOT A WORD WHICH WOULD
WARRANT LIMITING THIS REFERENCE SO AS TO ALLOW INTERVENTION ONLY IN
PROCEEDINGS ARISING UNDER SEC. 17 OR IN PROCEEDINGS BEFORE THE
COMMISSION.  THE PROCEEDINGS MENTIONED ARE THOSE WHICH ARISE UNDER THIS
ACT, AN ACT UNDER WHICH BOTH JUDICIAL AND ADMINISTRATIVE PROCEEDINGS
MAY ARISE.  FN11  THE INSTANT CASE IS A READY ILLUSTRATION OF A
JUDICIAL PROCEEDING ARISING UNDER THIS ACT; A SUIT OF THIS NATURE IS
AUTHORIZED SOLELY BY SEC. 16(12) OF THE ACT.  FN12  HENCE IT IS A
PROCEEDING TO WHICH THE RIGHT OF INTERVENTION MAY ATTACH BY VIRTUE OF
SEC. 17(11). 

NOR DO WE PERCEIVE ANY REASON OF STATUTORY POLICY WHY THE FRAMERS OF
SEC. 17(11) SHOULD HAVE WISHED TO CONFINE THE RIGHT OF INTERVENTION BY
EMPLOYEE REPRESENTATIVES TO PROCEEDINGS BEFORE THE COMMISSION. 
OCCASIONS MAY ARISE, AS IN THIS CASE, WHERE THE EMPLOYEE
REPRESENTATIVES HAVE NO INTEREST IN INTERVENING IN THE ORIGINAL
ADMINISTRATIVE PROCEEDING, BUT WHERE THEY HAVE A VERY DEFINITE INTEREST
IN INTERVENING IN A SUBSEQUENT JUDICIAL PROCEEDING ARISING UNDER THE
ACT.  WHEN THE FRAMERS HAVE USED LANGUAGE WHICH COVERS BOTH TYPES OF
PROCEEDINGS, WE WOULD BE UNJUSTIFIED IN FORMULATING SOME POLICY WHICH
THEY DID NOT SEE FIT TO EXPRESS TO LIMIT THAT LANGUAGE IN ANY WAY. 

THIRD.  THIS IS A PROCEEDING ARISING UNDER THE ACT WHICH AFFECTS THE
EMPLOYEES REPRESENTED BY THE BROTHERHOOD.  NOTHING COULD MAKE THIS
PLAINER THAN THE FACT THAT DIRECT INJUNCTIVE RELIEF WAS SOUGHT AND
OBTAINED AGAINST THESE EMPLOYEES.  THE APPELLEE RAILROADS SUED TO
ENJOIN RIVER ROAD AND ITS EMPLOYEES FROM DISOBEYING THE THIRD CONDITION
OF THE 1922 COMMISSION ORDER.  IT WAS ALLEGED THAT THIS CONDITION
REQUIRED RIVER ROAD AND ITS EMPLOYEES TO PERMIT THE RAILROADS TO USE
THEIR OWN POWER AND CREWS IN MOVING CARS OVER THE RIVER ROAD LINE.  YET
THAT WAS PRECISELY THE SUBJECT MATTER OF THE CONFLICT BETWEEN RIVER
ROAD AND THE BROTHERHOOD, RESULTING IN THE INSERTION OF IMPORTANT
PROVISIONS IN THE CONTRACT BETWEEN THEM.  IF THE COMMISSION ORDER DID
REQUIRE THE RIVER ROAD EMPLOYEES TO FOREGO OPERATING THE LIVESTOCK
CARS, THEIR CONTRACT RIGHTS WITH RIVER ROAD WERE AFFECTED IN A VERY
REAL SENSE.  ACTS DONE BY THE EMPLOYEES IN PERFORMANCE OF THIS CONTRACT
OBVIOUSLY PROMPTED THIS SUIT; AND ANY SUCH ACTS PERFORMED AFTER THE
ISSUANCE OF AN INJUNCTION MIGHT GIVE RISE TO CONTEMPT ACTION.  IT IS
THUS IMPOSSIBLE TO SAY THAT THIS PROCEEDING IS NOT ONE "AFFECTING SUCH
EMPLOYEES" WITHIN THE MEANING OF SEC. 17(11). 

SINCE ALL THE CONDITIONS OF SEC. 17(11) HAVE BEEN SATISFIED IN THIS
CASE, THE ONLY QUESTION THAT REMAINS IS WHETHER THE BROTHERHOOD IS
THEREBY ACCORDED A PERMISSIVE OR AN ABSOLUTE RIGHT TO INTERVENE.  THE
LANGUAGE OF SEC. 17(11) IS IN TERMS OF "MAY INTERVENE AND BE HEARD,"
WHICH MIGHT BE CONSTRUED AS GIVING ONLY A DISCRETIONARY RIGHT.  BUT OUR
VIEW, AS WE HAVE INDICATED, IS THAT ONCE THE REQUIREMENTS OF SEC.
17(11) HAVE BEEN MET, THE EMPLOYEES' REPRESENTATIVE ACQUIRES AN
ABSOLUTE RIGHT OF INTERVENTION. 

SOME STATUTES SPEAK OF INTERVENTION "AS OF RIGHT."  THUS WHERE SUIT
IS BROUGHT BY OR AGAINST THE UNITED STATES TO ENFORCE OR SET ASIDE A
COMMISSION ORDER, THE COMMISSION OR THE PARTIES IN INTEREST TO THE
PROCEEDING BEFORE THE COMMISSION "MAY APPEAR AS PARTIES THERETO  ...
AS OF RIGHT."  28 U.S.C. SEC. 45A.  IN SUCH A CASE, THE RIGHT TO
INTERVENE IS ABSOLUTE AND UNCONDITIONAL.  SPRUNT & SON V. UNITED
STATES, 281 U.S. 249, 255. 

NO LESS ABSOLUTE OR UNCONDITIONAL IS THE RIGHT TO INTERVENE UNDER
SEC. 17(11), WHICH PERMITS INTERVENTION WHERE THE EMPLOYEES ARE
AFFECTED BY THE PROCEEDING.  TO BE SUFFICIENTLY AFFECTED WITHIN THE
MEANING OF THIS PROVISION REQUIRES THAT THE EMPLOYEES BE PREJUDICED OR
BOUND BY ANY JUDGMENT THAT MIGHT BE ENTERED IN THE CASE, AS IS THE
SITUATION RELATIVE TO THE RIVER ROAD EMPLOYEES.  ONCE IT IS CLEAR THAT
AN EFFECT OF THAT DEGREE IS PRESENT, HOWEVER, THERE IS NO ROOM FOR THE
OPERATION OF A COURT'S DISCRETION.  WHETHER THE EMPLOYEES' INTERESTS
SHOULD BE ASSERTED OR DEFENDED IN A PROCEEDING WHERE THOSE INTERESTS
ARE AT STAKE IS A QUESTION TO BE DECIDED BY THE EMPLOYEES'
REPRESENTATIVE, NOT BY THE COURT.  THE STATUTORY TERM "MAY INTERVENE"
THUS MEANS "MAY INTERVENE IF THE EMPLOYEES' REPRESENTATIVE SO CHOOSES"
RATHER THAN "MAY INTERVENE IN THE DISCRETION OF THE COURT."  AND IF THE
REPRESENTATIVE DOES CHOOSE TO INTERVENE, IT MAY DO SO AS A MATTER OF
RIGHT WITHIN THE MEANING OF RULE 24(A)(1) OF THE FEDERAL RULES OF CIVIL
PROCEDURE.  SUCH IS THIS CASE. 

WE THUS CONCLUDE THAT SEC. 17(11) GIVES THE BROTHERHOOD AN ABSOLUTE
RIGHT TO INTERVENE IN THIS PROCEEDING, MAKING IT UNNECESSARY TO DISCUSS
WHETHER, AND TO WHAT EXTENT, THE BROTHERHOOD WOULD HAVE HAD SUCH A
RIGHT APART FROM SEC. 17(11).  IT FOLLOWS THAT WE HAVE JURISDICTION TO
CONSIDER THE APPEAL ON ITS MERITS.  AND IN THE EXERCISE OF THAT
JURISDICTION, WE REVERSE THE JUDGMENT OF THE DISTRICT COURT DENYING
LEAVE TO THE BROTHERHOOD TO INTERVENE.  REVERSED. 

FN1  BALTIMORE & O.R. CO. V. UNITED STATES (UNREPORTED), UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN
DIVISION, EQUITY NO. 3427, JANUARY 15, 1929.  THE COURT APPROVED THE
COMMISSION ORDER AS AMENDED IN 150 I.C.C. 32.  THAT AMENDMENT IS NOT
GERMANE TO THIS CASE. 

FN2  THE COMMISSION BASED ITS COMPLAINT UPON SEC. 5(8) OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 5(8), WHICH AUTHORIZES THE
COMMISSION TO SEEK, AND GRANTS JURISDICTION TO THE FEDERAL DISTRICT
COURTS TO ISSUE, INJUNCTIVE OR MANDATORY RELIEF TO RESTRAIN VIOLATION
OF OR COMPEL OBEDIENCE TO AN ORDER ISSUED UNDER SEC. 5. 

FN3  ON APPEAL BY JUNCTION, THE SEVENTH CIRCUIT COURT OF APPEALS
REVERSED THE DECREE AS TO JUNCTION, HOLDING THAT JUNCTION HAD NO
CONTROL OVER AND NOTHING TO DO WITH THE ACTS COMPLAINED OF BY THE
APPELLEES.  BALTIMORE & O.R. CO. V. CHICAGO JUNCTION R. CO., 156 F.2D
357. 

FN4  54 STAT. 916, 49 U.S.C. SEC. 17(11). 

FN5  SEE ALSO EX PARTE CUTTING, 94 U.S. 14; CREDITS COMMUTATION CO.
V. UNITED STATES, 177 U.S. 311; EX PARTE LEAF TOBACCO BOARD OF TRADE,
222 U.S. 578; IN RE ENGELHARD, 231 U.S. 646; CITY OF NEW YORK V.
CONSOLIDATED GAS CO., 253 U.S. 219; NEW YORK CITY V. NEW YORK TELEPHONE
CO., 261 U.S. 312. 

FN6  AS IT APPEARS IN THE U.S.C.  49 U.S.C. SEC. 17(11), THIS
PARAGRAPH READS: "REPRESENTATIVES OF EMPLOYEES OF A CARRIER, DULY
DESIGNATED AS SUCH, MAY INTERVENE AND BE HEARD IN ANY PROCEEDING
ARISING UNDER THIS CHAPTER AND CHAPTERS 8 AND 12 OF THIS TITLE
AFFECTING SUCH EMPLOYEES." 

THE WORDS "THIS CHAPTER" REFER TO PART I OF THE INTERSTATE COMMERCE
ACT, WHICH EMBODIES THE ORIGINAL STATUTE KNOWN BY THAT NAME PRIOR TO
ITS DIVISION INTO PARTS.  CHAPTER 8 RELATES TO PART II OF THE
INTERSTATE COMMERCE ACT, ORIGINALLY KNOWN AS THE MOTOR CARRIER ACT OF
1935.  SECTION 305(H) OF PART II IS A CROSS-REFERENCE TO SEC. 17 OF
PART I:  "ALL THE PROVISIONS OF SECTION 17 OF THIS TITLE SHALL APPLY TO
ALL PROCEEDINGS UNDER THIS CHAPTER."  CHAPTER 12 IS THE EQUIVALENT OF
PART III OF THE INTERSTATE COMMERCE ACT, WHICH DEALS WITH WATER
CARRIERS.  SECTION 916(A) IS ALSO A CROSS-REFERENCE TO SEC. 17 OF PART
I:  "THE PROVISIONS OF SECTION 12 AND SECTION 17 OF CHAPTER 1 OF THIS
TITLE AND SECTIONS 46-48 OF THIS TITLE SHALL APPLY WITH FULL FORCE AND
EFFECT IN THE ADMINISTRATION AND ENFORCEMENT OF THIS CHAPTER." 

FN7  H. REP. NO. 1217, 76TH CONG., 1ST SESS., P. 13; H. REP. NO.
2832, 76TH CONG., 3D SESS., P. 72. 

FN8  H.R. NO. 2016, 76TH CONG., 3D SESS., P. 67; H. REP. NO. 2832,
76TH CONG., 3D SESS., P. 72. 

FN9  H. REP. NO. 1217, 76TH CONG., 1ST SESS., P. 15. 

FN10  H. REP. NO. 1217, 76TH CONG., 1ST SESS., P. 15. 

FN11  SECTION 17(11), BY REFERRING TO PROCEEDINGS ARISING UNDER "THIS
ACT," ALSO AFFECTS JUDICIAL AND ADMINISTRATIVE PROCEEDINGS ARISING
UNDER PARTS II AND III OF THE ACT.  SEE NOTE 6, SUPRA. 

FN12  SECTION 16(12) IS LABELED "PROCEEDINGS TO ENFORCE ORDERS OTHER
THAN FOR PAYMENT OF MONEY."  49 U.S.C. SEC. 16(12).  IT PROVIDES THAT
IF ANY CARRIER FAILS TO OBEY A COMMISSION ORDER OTHER THAN FOR THE
PAYMENT OF MONEY, THE COMMISSION, ANY INJURED PARTY OR THE UNITED
STATES MAY APPLY TO A FEDERAL DISTRICT COURT FOR THE ENFORCEMENT OF THE
ORDER. 
..END :





UNITED STATES V. BAYER, 331 U.S. 532 


NO. 606.  ARGUED APRIL 2, 1947.  - DECIDED JUNE 9, 1947.  - 156 F.2D
964, REVERSED. 


1.  WHEN A JUDGE'S CHARGE TO A JURY IS ACCURATE AND CORRECT, THE
EXTENT OF ITS AMPLIFICATION RESTS IN HIS DISCRETION; AND THE FACT THAT
THE CHARGE IS UNUSUALLY BRIEF DOES NOT MAKE IT A REVERSIBLE ERROR WHERE
THERE IS NO EVIDENCE THAT THE JURY MISUNDERSTOOD IT.  PP. 536-537. 

2.  IN THE CIRCUMSTANCES OF THIS CASE, IT WAS NOT REVERSIBLE ERROR TO
REFUSE TO ADMIT IN EVIDENCE AN UNSWORN UNVERIFIED LONG DISTANCE CALL
SLIP FROM THE TELEPHONE COMPANY RECORDS FOUR HOURS AFTER THE CASE HAD
BEEN SUBMITTED TO THE JURY, EVEN IF ITS EXCLUSION WOULD HAVE BEEN
PREJUDICIAL ERROR HAD THE OFFER BEEN TIMELY AND PROPERLY VERIFIED.  537
539. 

3.  THE FACT THAT AN ARMY OFFICER HAD MADE A CONFESSION UNDER
CIRCUMSTANCES PRECLUDING ITS USE IN EVIDENCE AGAINST HIM DID NOT
PRECLUDE THE USE IN EVIDENCE AGAINST HIM OF A SECOND CONFESSION MADE
VOLUNTARILY SIX MONTHS LATER AFTER FAIR WARNING THAT IT MIGHT BE USED
AGAINST HIM AND WHEN HE WAS UNDER NO RESTRAINT EXCEPT THAT HE COULD NOT
LEAVE HIS BASE LIMITS WITHOUT PERMISSION - EVEN THOUGH THE SECOND
CONFESSION WAS BUT AN ELABORATION OF THE FIRST.  PP. 539-541. 

4.  CONVICTION BY COURT-MARTIAL FOR VIOLATING THE 95TH AND 96TH
ARTICLES OF WAR, BY CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN AND
CONDUCT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE, DOES NOT
BAR, ON THE GROUND OF DOUBLE JEOPARDY, ANOTHER TRIAL IN A CIVIL COURT
FOR A CONSPIRACY TO DEFRAUD THE GOVERNMENT BY DEPRIVING IT OF THE
FAITHFUL SERVICES OF AN ARMY OFFICER IN VIOLATION OF 18 U.S.C. SEC. 88;
SINCE THE TWO OFFENSES ARE NOT THE SAME EVEN THOUGH THEY ARISE OUT OF
THE SAME FACTS.  PP. 541-543. 

UNITED STATES V. BAYER ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

RESPONDENTS WERE CONVICTED IN A DISTRICT COURT OF CONSPIRACY TO
DEFRAUD THE GOVERNMENT BY DEPRIVING IT OF THE FAITHFUL SERVICES OF AN
ARMY OFFICER IN VIOLATION OF 18 U.S.C. SEC. 88.  THE CIRCUIT COURT OF
APPEALS REVERSED.  156 F.2D 964.  THIS COURT GRANTED CERTIORARI.  329
U.S. 706.  REVERSED, P. 543. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS IS A SORDID THREE-SIDED CASE.  THE GOVERNMENT CHARGED ALL OF THE
DEFENDANTS WITH CONSPIRING TO DEFRAUD BY DEPRIVING IT OF THE FAITHFUL
SERVICES OF AN ARMY OFFICER.  18 U.S.C. SEC. 88, 35 STAT. 1096.  THE
DEFENDANT RADOVICH, THE OFFICER IN QUESTION, ADMITS RECEIPT OF MONEY
FROM THE OTHER DEFENDANTS AND ADMITS THE QUESTIONED ACTIONS BUT DENIES
THE CONSPIRACY, CLAIMING THE OTHERS INDUCED HIM TO ACCEPT A BRIBE.  THE
DEFENDANTS BAYER ADMIT PAYMENT OF THE MONEY BUT CLAIM THEY WERE VICTIMS
OF EXTORTION BY RADOVICH.  THE JURY FOUND ALL GUILTY BUT RECOMMENDED
"THE HIGHEST DEGREE OF CLEMENCY FOR ALL THREE DEFENDANTS."  THE COURT
OF APPEALS FOR THE SECOND CIRCUIT REVERSED.  FN1  WE GRANTED THE
GOVERNMENT'S PETITION FOR CERTIORARI.  FN2 

THE PRINCIPAL FACTS ARE ADMITTED AND IT IS CONTESTED INFERENCES WHICH
ARE DECISIVE OF THE ISSUE OF GUILT.  NONE OF THE DEFENDANTS TESTIFIED. 
IT WOULD SERVE NO PURPOSE TO REVIEW THE EVIDENCE IN DETAIL.  IT
JUSTIFIES FINDING AS FOLLOWS: 

THE BAYER BROTHERS WERE MANUFACTURERS OF YARN AND THREAD AND BORE
GOOD NAMES IN THEIR CIRCLE.  SAMUEL HAD THREE SONS IN THE SERVICE.  ONE
OF THEM, MARTIN, WITH MELVIN USDAN, A NEPHEW OF BOTH BAYERS, WAS
INVOLVED IN THIS CASE.  MARTIN'S HEALTH HAD NOT BEEN ROBUST.  THESE TWO
BOYS ENLISTED IN THE AIR CORPS ON THE DAY WHICH SAMUEL HAD LEARNED WAS
THE LAST ON WHICH A VOLUNTEER COULD SELECT THE BRANCH IN WHICH TO
SERVE.  THEY WERE ALMOST IMMEDIATELY ASSIGNED AS FILE CLERKS AT MITCHEL
FIELD, LONG ISLAND.  IN JANUARY 1943, AT A NIGHT CLUB, ELIAS BAYER
PICKED UP THE ACQUAINTANCE OF TWO OFFICERS STATIONED THERE.  THEY WERE
INTERESTED IN OBTAINING UNIFORMS AT WHOLESALE.  THE BAYERS EVENTUALLY
AIDED THEM AND OTHERS TO OBTAIN UNIFORMS AND PAID FOR THEM, THOUGH THEY
CLAIM TO HAVE UNDERSTOOD THAT THE OFFICERS WERE TO PAY FOR THEM.  THE
ACQUAINTANCE EXTENDED TO OTHER OFFICERS, AND THERE WAS CONSIDERABLE
ENTERTAINMENT.  IN APRIL 1943 REPLACEMENT OF MEN IN CLERICAL POSITIONS
BY WOMEN'S ARMY CORPS PERSONNEL WAS IMPENDING AND ONE COL. JACOBSON
REQUESTED A TRANSFER OF THESE TWO BOYS WITH THE EFFECT, AS SAMUEL
UNDERSTOOD IT, OF ASSURING THEM A YEAR'S ASSIGNMENT AT MITCHEL FIELD. 
JACOBSON WAS GIVEN A DINNER AT THE WALDORF AND PRESENTED WITH FOUR NEW
AUTOMOBILE TIRES. 

THIS TRANSFER PLACED THE TWO BOYS UNDER COMMAND OF RADOVICH.  BY JULY
THERE WERE RUMORS THAT THE OFFICERS WERE RECEIVING GIFTS FROM THE
BAYERS AND RADOVICH TOLD SAMUEL THAT THE BOYS WOULD HAVE TO BE
TRANSFERRED.  SAMUEL WANTED THEM KEPT AT MITCHEL FIELD.  RADOVICH MADE
A TRANSFER FROM HIS UNIT TO THE MEDICAL DETACHMENT AT THE SAME FIELD,
WHICH AT FIRST WAS DISAPPROVED, AND THEN HE ACCOMPLISHED IT BY AN
EXCHANGE OF PERSONNEL.  AFTER THE TRANSFER WAS MADE, SAMUEL PAID
RADOVICH SOME $1,900 OR $2,000. 

IN AUGUST 1943 THE BOYS WERE AGAIN TRANSFERRED, TO A UNIT OF AIRBORNE
ENGINEERS FOR OVERSEAS DUTY.  BOTH BAYERS WERE GREATLY CONCERNED ABOUT
THIS AND BESOUGHT THEIR FRIENDS AMONG THE OFFICERS TO PREVENT IT.
RADOVICH HAD GONE.  HE HAD JOINED AN AIR COMMANDO GROUP WITH HIGH
PRIORITY ON PERSONNEL.  BUT HE SEVERAL TIMES TALKED WITH CAPTAIN
PEPPER, IN CHARGE OF PERSONNEL, ABOUT TRANSFERRING THESE BOYS FROM THE
OVERSEAS SERVICE TO AIR TRANSPORT COMMAND FOR SERVICE ONLY IN
CONTINENTAL UNITED STATES.  THIS COULD NOT BE DONE.  THEN RADOVICH
PROPOSED TO USE HIS UNIT'S HIGHER PRIORITY TO REQUISITION THE BOYS FOR
IT, TO DROP THEM AS SURPLUS, AND THEREUPON TO HAVE THEM TRANSFERRED TO
THE AIR TRANSPORT COMMAND FOR DOMESTIC SERVICE.  PEPPER AGREED THIS
MIGHT BE DONE.  RADOVICH TOLD PEPPER IT WAS "WORTH HIS WHILE" TO GET IT
DONE AND HE WOULD SEE THAT DOING IT WAS WORTH PEPPER'S WHILE. 

ON NOVEMBER 22, 1943 RADOVICH REQUISITIONED THE TRANSFER OF THE BOYS
TO HIS UNIT, TO REPORT NOVEMBER 25.  ALMOST AT ONCE HE ALSO REQUESTED
THAT THEY BE TRANSFERRED OUT OF HIS UNIT AND TO AIR TRANSPORT COMMAND. 
THIS WAS EFFECTED SHORTLY.  ELIAS BAYER AND ONE OF NAME UNKNOWN TO THE
RECORD THEN DELIVERED $5,000 TO RADOVICH, WHO SENT PEPPER $500.  PEPPER
TESTIFIED THAT HE DESTROYED THE CHECK. 

THE GOVERNMENT FROM THESE FACTS AND OTHER EVIDENCE DRAWS, AS DID THE
JURY, THE INFERENCE OF CONSPIRACY.  THE BAYERS SAY THEY WERE VICTIMS OF
EXTORTION AND THERE IS EVIDENCE THAT RADOVICH USED THE TRANSFER TO HIS
OWN UNIT, ONE OF EXTREMELY DANGEROUS MISSION FOR WHICH THESE BOYS HAD
NEITHER TRAINING NOR APTITUDE, TO FORCE MONEY OUT OF THE BAYERS. 
RADOVICH DENIES THE CONSPIRACY AND PLEADS CERTAIN COURT-MARTIAL
PROCEEDINGS AS A BAR. 

THE ISSUE AS TO WHETHER THE BAYERS TEMPTED RADOVICH WITH A BRIBE OR
RADOVICH COERCED THEM WITH THREATS IS ONE WITH EVIDENCE AND INFERENCES
BOTH WAYS.  RADOVICH WAS A GALLANT AND SKILLFUL FLIER AND EXPLAINED HIS
CONDUCT THUS:  "I WAS GOING OVERSEAS ON A VERY HOT JOB AND DIDN'T
EXPECT TO COME BACK, HAD THE WIFE AND THE BABY, FIGURED I MIGHT JUST AS
WELL TAKE CARE OF THEM."  THE BAYERS WERE PERSONS OF SOME MEANS,
THOROUGHLY FRIGHTENED AT THE PROSPECT OF SERVICE FOR THESE BOYS IN
COMBAT AREAS, AND READY TO USE THEIR MEANS TO FOSTER THE BOYS' SAFETY. 
WHETHER THEY WERE VICTIMS OF EXTORTION OR VOLUNTARY CONSPIRATORS WAS
FOR THE JURY TO SAY, AND THE REVERSAL DOES NOT REST ON ANY INADEQUACY
OF PROOF.  THE GROUNDS OF REVERSAL BY THE COURT OF APPEALS RAISE FOR
OUR CONSIDERATION FOUR QUESTIONS OF LAW. 

1.  THE BAYERS ASSIGNED AS ERROR THE TRIAL JUDGE'S CHARGE AS TO
CONSPIRACY.  THE COURT OF APPEALS UNANIMOUSLY SAID, "THERE IS NO
QUESTION BUT THAT THIS CHARGE WAS AN ACCURATE, ALBEIT BRIEF, STATEMENT
OF THE LAW."  BUT A MAJORITY THOUGHT THAT "THE STATEMENT WAS SO CRYPTIC
AS TO BE DIFFICULT TO UNDERSTAND, IF NOT TO BE ACTUALLY MISLEADING TO A
JURY OF LAYMEN," WHILE ONE JUDGE THOUGHT IT "A WELCOME RELIEF FROM MUCH
JUDICIAL VERBOSITY."  FN3  WE ARE NOT CERTAIN WHETHER A REVERSAL AS TO
THE BAYERS WOULD HAVE BEEN RESTED ON THIS CRITICISM OF THE CHARGE
ALONE.  WE DO NOT CONSIDER OBJECTION TO THE CHARGE TO AMOUNT TO
REVERSIBLE ERROR.  ONCE THE JUDGE HAS MADE AN ACCURATE AND CORRECT
CHARGE, THE EXTENT OF ITS AMPLIFICATION MUST REST LARGELY IN HIS
DISCRETION.  THE TRIAL JUDGE, IN THE LIGHT OF THE WHOLE TRIAL AND WITH
THE JURY BEFORE HIM, MAY FEEL THAT TO REPEAT THE SAME WORDS WOULD MAKE
THEM NO MORE CLEAR, AND TO INDULGE IN VARIATIONS OF STATEMENT MIGHT
WELL CONFUSE.  HOW FAR ANY CHARGE ON TECHNICAL QUESTIONS OF LAW IS
REALLY UNDERSTOOD BY THOSE OF LAY BACKGROUND WOULD BE DIFFICULT TO
ASCERTAIN, BUT IT IS CERTAINLY MORE EVIDENT IN THE LIVING SCENE THAN IN
A COLD RECORD.  IN THIS CASE THE JURY ASKED A REREADING OF THE CHARGE
ON CONSPIRACY.  AFTER REPEATING HIS INSTRUCTION, THE COURT INQUIRED OF
THE JURY WHETHER ANYTHING ABOUT IT WAS NOT CLEAR, OR WHETHER THERE WAS
ANYTHING WHICH THEY DESIRED TO HAVE AMPLIFIED.  NOTHING WAS SUGGESTED,
ALTHOUGH INQUIRY WAS MADE AS TO OTHER MATTERS.  WHILE MANY JUDGES WOULD
HAVE MADE A MORE EXTENDED CHARGE, WE THINK THE TRIAL COURT WAS WITHIN
ITS AREA OF DISCRETION IN HIS BREVITY. 

2.  THE BAYERS WON REVERSAL ON ANOTHER GROUND.  AFTER THE JURY HAD
BEEN OUT ABOUT FOUR HOURS, IT RETURNED FOR INSTRUCTIONS AND ASKED TO
HAVE PARTS OF THE SUMMATIONS OF COUNSEL READ.  THE COURT DECLINED TO
READ PARTS.  IT WAS AT THIS POINT THAT COUNSEL FOR THE BAYERS ASKED TO
REOPEN THE CASE AND TO PUT IN EVIDENCE A LONG DISTANCE CALL SLIP FROM
TELEPHONE COMPANY RECORDS.  IT WAS THE MEMORANDUM OF A CALL ON NOVEMBER
24, 1943, FROM ONE WE ASSUME TO BE RADOVICH, SPELLED ON THE TICKET
"RAVISH," FROM ARLINGTON, VIRGINIA, TO BAYER'S NUMBER IN NEW YORK.  THE
TICKET TENDED TO CORROBORATE SAMUEL BAYER'S SECRETARY WHO TESTIFIED TO
RECEIVING SUCH A CALL AND WHO WAS THE BAYERS' CHIEF WITNESS ON THE
SUBJECT OF EXTORTION.  IT ALSO TENDED TO CONTRADICT A GOVERNMENT
WITNESS.  THE MATTER HAD BECOME OF IMPORTANCE BECAUSE OF THE DISTRICT
ATTORNEY'S ARGUMENT THAT THE BAYERS' WITNESS FALSIFIED HER STORY.  THE
COURT HAD ALREADY, AT RESPONDENTS' REQUEST, AFTER THE JURY HAD BEEN
INSTRUCTED, TOLD THEM THAT A CHECK OF THE BAYERS' RECORDS SHOWED A
COLLECT-CALL FROM WASHINGTON THAT DAY, BUT ON REQUEST OF COUNSEL FOR
RADOVICH THE COURT HAD ALSO STATED THAT THE RECORD DID NOT SHOW WHO
MADE THE CALL.  WE WILL ASSUME THAT THE PROFFERED EVIDENCE WAS
RELEVANT, CORROBORATIVE OF THE BAYERS' CONTENTIONS, AND HAD THE OFFER
BEEN TIMELY AND PROPERLY VERIFIED, ITS EXCLUSION WOULD HAVE BEEN
PREJUDICIAL ERROR. 

BUT THE ITEM OF EVIDENCE WAS DISPUTED.  THE DISTRICT ATTORNEY HAD NOT
SEEN THE SLIP AND DID NOT ADMIT THE INTERPRETATION BAYER'S COUNSEL PUT
UPON IT.  COUNSEL FOR RADOVICH OBJECTED.  TO HAVE ADMITTED IT OVER HIS
OBJECTION MIGHT WELL HAVE BEEN PREJUDICIAL TO HIM.  THE TRIAL COURT HAD
ALREADY, AS HE ADMITTED, AND AS RADOVICH'S COUNSEL CHARGED, GIVEN THE
BAYERS THE BENEFIT OF AN IRREGULAR CONVEYANCE OF INFORMATION TO THE
JURY ABOUT THE CALL WHICH HAD NOT BEEN REGULARLY PROVED.  MOREOVER,
DEFENDANTS OFFERED NO WITNESS TO AUTHENTICATE THE SLIP.  AS THE TRIAL
COURT POINTED OUT TO COUNSEL, HIS PROPOSAL WAS MERELY TO HAND TO THE
JURY "AN UNVERIFIED MEMORANDUM FROM THE TELEPHONE COMPANY."  EVEN
DURING THE TRIAL SUCH AN OFFER, WITH NO FOUNDATION IN TESTIMONY AND
AGAINST OBJECTION, WOULD HAVE BEEN INADEQUATE.  TO HAVE ADMITTED IT
WITH NO WITNESS TO IDENTIFY OR SUPPORT IT WOULD HAVE CUT OFF ALL CROSS
EXAMINATION BY BOTH THE GOVERNMENT AND RADOVICH, AND CROSS-EXAMINATION
WOULD NOT HAVE BEEN UNREASONABLE CONCERNING A SLIP IN WHICH THE BAYERS
WISHED ARLINGTON TO BE TAKEN AS EQUIVALENT TO WASHINGTON AND "RAVISH"
TO IDENTIFY RADOVICH.  THE EVIDENCE, IF PUT IN AFTER FOUR HOURS OF
DELIBERATION BY THE JURY, WOULD LIKELY BE OF DISTORTED IMPORTANCE.  IT
SURELY WOULD HAVE BEEN PREJUDICIAL TO THE GOVERNMENT, FOR THE DISTRICT
ATTORNEY WOULD THEN HAVE HAD NO CHANCE TO COMMENT ON IT, SUMMATION
HAVING BEEN CLOSED.  IT ALSO WOULD HAVE BEEN PREJUDICIAL TO THE OTHER
DEFENDANT, RADOVICH, WHO, WITH NO CHANCE TO CROSS-EXAMINE OR TO
COMMENT, WOULD BE CONFRONTED WITH A NEW ITEM OF EVIDENCE AGAINST HIM. 
THE COURT SEEMS TO HAVE FACED A DILEMMA, EITHER TO GRANT A MISTRIAL AND
START THE WHOLE CASE OVER AGAIN OR TO DENY THE BAYERS' REQUEST. 
CERTAINLY A DEFENDANT WHO SEEKS THUS TO DESTROY A TRIAL MUST BRING HIS
DEMAND WITHIN THE RULES OF PROOF AND DO SOMETHING TO EXCUSE ITS
UNTIMELINESS. 

NOT ONLY WAS THE PROFFER OF THE EVIDENCE TECHNICALLY DEFICIENT, BUT
NO EXCUSE FOR THE UNTIMELINESS OF THE OFFER APPEARED.  IT IS TRUE, NO
DOUBT, THAT COUNSEL WAS SURPRISED AT THE ARGUMENT MADE BY THE DISTRICT
ATTORNEY WHICH WOULD HAVE BEEN LESS EFFECTIVE HAD THIS EVIDENCE BEEN
IN.  BUT MISS SOLOMON, AN EMPLOYEE OF DEFENDANTS AND, HENCE, AN
INTERESTED WITNESS, WAS LEFT TO CARRY THE BURDEN OF PROVING EXTORTION
WITHOUT THE CORROBORATION OF THE TESTIMONY OF HER EMPLOYER-DEFENDANTS. 
THIS WAS DEFENDANTS' RIGHT, BUT IT SHOULD HAVE BEEN APPARENT THAT EVERY
BOLSTER TO HER CREDIBILITY WOULD BE IMPORTANT.  IT IS WELL KNOWN THAT
THE TELEPHONE COMPANIES KEEP SUCH RECORDS AND THEY SEEM TO HAVE BEEN
EASILY OBTAINED WHEN ASKED FOR.  WE DO NOT CONSIDER IT REVERSIBLE ERROR
TO REFUSE TO LET THIS UNSWORN, UNVERIFIED SLIP BE PUT INTO EVIDENCE
FOUR HOURS AFTER THE CASE HAD BEEN SUBMITTED TO THE JURY.  THE JUDGMENT
OF REVERSAL AS TO THE BAYERS WAS, IN OUR OPINION, ERRONEOUS. 

3.  RADOVICH'S CASE RAISES ADDITIONAL QUESTIONS.  THE FIRST CONCERNS
THE RECEIPT IN EVIDENCE OF HIS CONFESSION OF MARCH 15 AND 17, 1945.  IN
ABSENCE OF THE JURY, THE COURT HEARD TESTIMONY BEFORE ADMITTING IT AND
THEREAFTER MOST OF IT WAS REPEATED BEFORE THE JURY.  THE PROOF AGAINST
RADOVICH LARGELY RESTED ON THE CONFESSION. 

AFTER SERVICE OF DISTINCTION IN BURMA, RADOVICH, THEN 24 YEARS OF
AGE, WAS ORDERED TO REPORT TO MITCHEL FIELD.  UPON ARRIVAL ON AUGUST 9,
1944, HE WAS PLACED UNDER ARREST AND CONFINED IN THE PSYCHOPATHIC WARD
IN THE STATION HOSPITAL.  HERE, FOR SOME TIME, HE WAS DENIED CALLERS,
COMMUNICATION, COMFORTS AND FACILITIES WHICH IT IS NEEDLESS TO DETAIL. 
CHARGES FOR COURT-MARTIAL WERE NOT PROMPTLY SERVED ON HIM AS SAID TO BE
REQUIRED BY THE 70TH ARTICLE OF WAR, NOR WAS HE TAKEN BEFORE A
MAGISTRATE FOR ARRAIGNMENT ON ANY CHARGES PREFERRED BY CIVIL
AUTHORITIES.  MILITARY CHARGES WERE FINALLY SERVED ON MAY 30, 1945. 
MEANWHILE, UNDER SUCH RESTRAINT, HE MADE A FIRST CONFESSION ON
SEPTEMBER 5 OR 6, 1944.  WITHOUT MORE, WE WILL ASSUME THIS CONFESSION
TO BE INADMISSIBLE UNDER THE RULE LAID DOWN IN MCNABB V. UNITED STATES,
318 U.S. 332, AND ANDERSON V. UNITED STATES, 318 U.S. 350.  BUT THIS
CONFESSION WAS NEITHER OFFERED NOR RECEIVED IN EVIDENCE. 

A SECOND CONFESSION MADE TO AGENT FLYNN OF THE FEDERAL BUREAU OF
INVESTIGATION ON MARCH 15 AND 17, 1945 WAS RECEIVED, HOWEVER, AND THE
COURT OF APPEALS HAS HELD IT TO BE "PATENTLY THE FRUIT OF THE EARLIER
ONE"  FN4  AND EQUALLY INADMISSIBLE, CITING SILVERTHORNE LUMBER CO. V.
UNITED STATES, 251 U.S. 385; NARDONE V. UNITED STATES, 308 U.S. 338. 
AT THE TIME OF THIS CONFESSION RADOVICH WAS STILL AT MITCHEL FIELD, BUT
ONLY UNDER "ADMINISTRATIVE RESTRICTIONS," WHICH MEANT THAT HE COULD NOT
DEPART THE LIMITS OF THE BASE WITHOUT LEAVE.  FLYNN TESTIFIED THAT
RADOVICH HAD A NUMBER OF CONVERSATIONS WITH F.B.I. AGENTS.  HE HAD
VOLUNTEERED SOME FACTS NOT IN THE ORIGINAL STATEMENT AND THE MEETING OF
MARCH WAS TO INCORPORATE THE WHOLE STORY IN ONE STATEMENT.  FLYNN
WARNED HIM HIS STATEMENT MIGHT BE USED AGAINST HIM.  RADOVICH REQUESTED
THE ORIGINAL STATEMENT AND READ IT BEFORE MAKING THE SECOND.  THE MARCH
STATEMENT IS LABELED A "SUPPLEMENTARY" STATEMENT AND IS "BASICALLY" THE
SAME AS THE EARLIER ONE BUT WENT INTO MORE DETAIL.  THE DISTRICT
ATTORNEY REFUSED TO PRODUCE THE FIRST STATEMENT, WHICH WAS NOT OFFERED
IN EVIDENCE, AND THE COURT SUSTAINED HIM, HAVING EXAMINED THE STATEMENT
AND FOUND NO MATERIAL CONFLICT BETWEEN THEM. 

OF COURSE, AFTER AN ACCUSED HAS ONCE LET THE CAT OUT OF THE BAG BY
CONFESSING, NO MATTER WHAT THE INDUCEMENT, HE IS NEVER THEREAFTER FREE
OF THE PSYCHOLOGICAL AND PRACTICAL DISADVANTAGES OF HAVING CONFESSED. 
HE CAN NEVER GET THE CAT BACK IN THE BAG.  THE SECRET IS OUT FOR GOOD. 
IN SUCH A SENSE, A LATER CONFESSION ALWAYS MAY BE LOOKED UPON AS FRUIT
OF THE FIRST.  BUT THIS COURT HAS NEVER GONE SO FAR AS TO HOLD THAT
MAKING A CONFESSION UNDER CIRCUMSTANCES WHICH PRECLUDE ITS USE,
PERPETUALLY DISABLES THE CONFESSOR FROM MAKING A USABLE ONE AFTER THOSE
CONDITIONS HAVE BEEN REMOVED.  THE SILVERTHORNE AND NARDONE CASES,
RELIED ON BY THE COURT OF APPEALS, DID NOT DEAL WITH CONFESSIONS BUT
WITH EVIDENCE OF A QUITE DIFFERENT CATEGORY AND DO NOT CONTROL THIS
QUESTION.  THE SECOND CONFESSION IN THIS CASE WAS MADE SIX MONTHS AFTER
THE FIRST.  THE ONLY RESTRAINT UNDER WHICH RADOVICH LABORED WAS THAT HE
COULD NOT LEAVE THE BASE LIMITS WITHOUT PERMISSION.  CERTAINLY SUCH A
LIMITATION ON THE FREEDOM OF ONE IN THE ARMY AND SUBJECT TO MILITARY
DISCIPLINE IS NOT ENOUGH TO MAKE A CONFESSION VOLUNTARILY GIVEN AFTER
FAIR WARNING INVALID AS EVIDENCE AGAINST HIM.  WE HOLD THE ADMISSION OF
THE CONFESSION WAS NOT ERROR.  CF. LYONS V. OKLAHOMA, 322 U.S. 596. 

4.  LASTLY, WE MUST CONSIDER WHETHER THE COURT-MARTIAL PROCEEDINGS
INSTITUTED AGAINST RADOVICH BAR THIS PROSECUTION ON THE GROUND OF
DOUBLE JEOPARDY.  RADOVICH WAS TRIED AND, ON JUNE 29, 1945, CONVICTED
BY COURT-MARTIAL OF VIOLATING THE 95TH AND 96TH ARTICLES OF WAR, 10
U.S.C. SECS. 1567, 1568, 41 STAT. 806-807.  THE OFFENSE CHARGED AND
FOUND WAS THAT OF CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN, AND OF
CONDUCT TO THE PREJUDICE OF GOOD ORDER AND MILITARY DISCIPLINE AND OF A
NATURE TO BRING DISCREDIT UPON THE MILITARY SERVICE.  AS TO EACH
OFFENSE, THE SPECIFICATIONS SET FORTH RECEIPT OF THE SAME PAYMENTS OF
MONEY FROM THE BAYERS FOR EFFECTING THE SAME TRANSFERS THAT ARE
INVOLVED IN THIS INDICTMENT.  RADOVICH'S PLEA IN BAR WAS OVERRULED BY
THE TRIAL COURT UPON THE GROUND THAT THE CONSPIRACY CHARGED IN THE
INDICTMENT WAS NOT THE SAME OFFENSE AS THAT UNDER THE ARTICLES OF WAR. 
THE COURT OF APPEALS DISAPPROVED THIS GROUND BUT LEFT THE ISSUE OF
DOUBLE JEOPARDY TO BE DECIDED AFTER RETRIAL BECAUSE OF DOUBT MEANWHILE
RAISED ABOUT THE STATUS OF THE MILITARY JUDGMENT. 

THE COURT OF APPEALS THOUGHT THE IDENTITY OF THE SPECIFICATIONS IN
THE COURT-MARTIAL PROCEEDINGS AND THE OFFENSE CHARGED IN THE
INDICTMENT, AND THE LIKELIHOOD THAT THE MILITARY COURT DID NOT
DISTINGUISH CAREFULLY BETWEEN THE PASSING OF THE MONEY AND THE
ARRANGEMENT TO THAT END, REQUIRED THE PLEA IN BAR TO BE SUSTAINED UNDER
GRAFTON V. UNITED STATES, 206 U.S. 333.  IN THAT CASE A SOLDIER ON
GUARD DUTY IN THE PHILIPPINES SHOT AND KILLED TWO FILIPINOS.  HE WAS
TRIED BY COURT-MARTIAL ON CHARGE OF HOMICIDE AND ACQUITTED.  A
PROSECUTING ATTORNEY OF THE ISLANDS THEN FILED IN PROVINCIAL COURT A
CHARGE OF "ASSASSINATION" ON IDENTICAL FACTS.  THIS COURT FOUND NOT
MERELY THE EVIDENCE BUT THE OFFENSE CHARGED TO BE IDENTICAL IN
EVERYTHING BUT NAME, AND HELD RETRIAL OF THE SAME OFFENSE IN PHILIPPINE
COURTS TO CONSTITUTE DOUBLE JEOPARDY. 

BUT HERE WE THINK THE DISTRICT COURT CORRECTLY RULED THAT THE TWO
CHARGES DID NOT ACCUSE OF IDENTICAL OFFENSES.  THE INDICTMENT IS FOR
CONSPIRING AND WE HAVE BUT RECENTLY REVIEWED THE NATURE OF THAT
OFFENSE.  PINKERTON V. UNITED STATES, 328 U.S. 640.  ITS ESSENCE IS IN
THE AGREEMENT OR CONFEDERATION TO COMMIT A CRIME, AND THAT IS WHAT IS
PUNISHABLE AS A CONSPIRACY, IF ANY OVERT ACT IS TAKEN IN PURSUIT OF IT.
THE AGREEMENT IS PUNISHABLE WHETHER OR NOT THE CONTEMPLATED CRIME IS
CONSUMMATED.  BUT THE SAME OVERT ACTS CHARGED IN A CONSPIRACY COUNT MAY
ALSO BE CHARGED AND PROVED AS SUBSTANTIVE OFFENSES, FOR THE AGREEMENT
TO DO THE ACT IS DISTINCT FROM THE ACT ITSELF.  PINKERTON V. UNITED
STATES, 328 U.S. 640, 644.  IN THE COURT-MARTIAL PROCEEDINGS, RADOVICH
ALONE WAS ACCUSED.  NO CONSPIRACY WAS ALLEGED AND THE SPECIFICATION WAS
CONFINED TO RADOVICH'S RECEIPT OF MONEY FOR EFFECTING TRANSFERS.  THIS
WAS A SUBSTANTIVE OFFENSE ON HIS PART UNDER THE ARTICLES OF WAR.  THE
AGREEMENT WITH OTHERS TO COMMIT IT CONSTITUTED A SEPARATE OFFENSE,
ALTHOUGH AMONG THE OVERT ACTS PROVED TO ESTABLISH THE CONSPIRACY WERE
THE SAME PAYMENTS AND TRANSFERS.  BOTH OFFENSES COULD BE CHARGED AND
CONVICTION HAD ON EACH.  THE PLEA IN BAR WAS PROPERLY OVERRULED. 

THIS CONCLUSION MAKES IT UNNECESSARY TO DECIDE WHETHER THE
DISAPPROVAL OF THE COURT-MARTIAL JUDGMENT FOR ERRORS IN TRIAL AND
WITHOUT ORDERING RETRIAL CREATES A STATUS FOR THE MILITARY JUDGMENT
SUCH THAT IN NO EVENT WOULD IT BE AVAILABLE TO BAR THIS PROSECUTION. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED. 

FN1  UNITED STATES V. BAYER, 156 F.2D 964. 

FN2  329 U.S. 706. 

FN3  156 F.2D AT 967. 

FN4  156 F.2D AT 970. 

MR. JUSTICE FRANKFURTER WOULD AFFIRM THE DECISION OF THE CIRCUIT
COURT OF APPEALS SUBSTANTIALLY FOR THE REASONS SET FORTH BELOW BY JUDGE
CLARK IN REVERSING THE CONVICTION OF THE BAYERS, WHICH, UNDER A CHARGE
OF CONSPIRACY, CARRIES WITH IT A REVERSAL AS TO RADOVICH.  156 F.2D
964, 967-68. 

MR. JUSTICE RUTLEDGE IS OF THE VIEW THAT THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS SHOULD BE AFFIRMED INSOFAR AS IT RELATES TO THE
RESPONDENT RADOVICH, FOR THE REASONS STATED IN THAT COURT'S OPINION. 
156 F.2D 964, 968-70. 
..END :





















GOSPEL ARMY V. LOS ANGELES, 331 U.S. 543 


NO. 103.  ARGUED FEBRUARY 6, 7, 1947.  - DECIDED JUNE 9, 1947.  - 27
CAL.2D 232, 163 P.2D 704, APPEAL DISMISSED. 


1.  A JUDGMENT OF THE SUPREME COURT OF CALIFORNIA REVERSING A JUDGMENT
OF A TRIAL COURT WITHOUT DIRECTION, WHICH UNDER CALIFORNIA LAW HAS ONLY
THE EFFECT OF REMANDING THE CASE FOR A NEW TRIAL AND, SO FAR AS
APPEARS, PLACES THE PARTIES IN THE SAME POSITION AS IF THE CASE HAD
NEVER BEEN TRIED, IS NOT A "FINAL JUDGMENT" WITHIN THE MEANING OF SEC.
237 OF THE JUDICIAL CODE, AND THIS COURT DOES NOT HAVE JURISDICTION OF
AN APPEAL THEREFROM.  PP. 546-548. 

2.  RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69, DISTINGUISHED
UPON THE SPECIAL CIRCUMSTANCES APPEARING IN THAT CASE AS RENDERING THE
CALIFORNIA SUPREME COURT'S JUDGMENT "FINAL" WITHIN THE MEANING OF SEC.
237 OF THE JUDICIAL CODE.  PP. 547-548. 

3.  ALTHOUGH THE MODERN RULE IS THAT, IN DETERMINING WHETHER A STATE
COURT'S REMAND IS FOR A NEW TRIAL, THIS COURT WILL EXAMINE BOTH THE
JUDGMENT AND THE OPINION AS WELL AS OTHER CIRCUMSTANCES THAT MAY BE
PERTINENT, THIS DOES NOT MEAN THAT IN THE ORDINARY CASE THIS COURT WILL
DISREGARD THE EFFECT OF THE JUDGMENT UNDER LOCAL LAW.  P. 548. 

GOSPEL ARMY V. LOS ANGELES ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

AN APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF CALIFORNIA, 27
CAL.2D 232, 163 P.2D 704, REVERSING A JUDGMENT OF A TRIAL COURT WITHOUT
DIRECTION DISMISSED FOR WANT OF JURISDICTION UNDER SEC. 237 OF THE
JUDICIAL CODE.  P. 548. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO RESCUE ARMY V. MUNICIPAL COURT OF THE
CITY OF LOS ANGELES, 331 U.S. 549, DECIDED TODAY.  BECAUSE WE DISMISS
THE APPEAL IN THIS CAUSE FOR JURISDICTIONAL REASONS, THE FACTS MAY BE
SHORTLY STATED. 

THE GOSPEL ARMY IS AN INCORPORATED RELIGIOUS ORGANIZATION.  THE TRIAL
COURT FOUND THAT IT IS "ENGAGED EXCLUSIVELY IN THE PROMULGATION, BY
LITERATURE AND WORD OF MOUTH, OF ITS RELIGIOUS BELIEFS, BY AND THROUGH
ITS AUXILIARIES, AND IN THE PROCURING OF DONATIONS IN THE FORM OF MONEY
AND ARTICLES OF VALUE IN THE PROSECUTION AND FURTHERANCE OF ITS
RELIGIOUS ACTIVITIES."  MORE PARTICULARLY, ITS ACTIVITIES CONSIST OF
CONDUCTING A MISSION, DISTRIBUTING RELIGIOUS BOOKS WITHOUT CHARGE,
GIVING AID TO THE POOR.  IT COLLECTS SALVAGE WHICH IT EITHER SELLS IN A
SECOND-HAND GOODS STORE,  FN1  DISTRIBUTES DIRECTLY TO THE POOR, OR
SENDS TO A SALVAGE MILL.  FN2 

THE GOSPEL ARMY INSTITUTED THIS SUIT TO ENJOIN THE ENFORCEMENT OF
CERTAIN ORDINANCES OF THE CITY OF LOS ANGELES ON THE GROUND THAT THEY
VIOLATE ITS RELIGIOUS LIBERTY UNDER THE CONSTITUTIONS OF CALIFORNIA AND
THE UNITED STATES.  FN3 

AFTER TRIAL THE SUPERIOR COURT OF LOS ANGELES COUNTY BROADLY
CONCLUDED: 

"THAT A PERMANENT INJUNCTION SHOULD ISSUE HEREIN RESTRAINING AND
ENJOINING THE DEFENDANTS AND EACH OF THEM AND ANY AND ALL PERSONS,
ASSOCIATIONS, DEPARTMENTS UNDER WHOM SAID DEFENDANTS OR ANY OF THEM MAY
BE EMPLOYED OR ACTING AND ANY AND ALL PERSONS, ASSOCIATIONS OR
DEPARTMENTS WHO MAY BE ACTING OR CLAIMING BY, THROUGH OR UNDER SAID
DEFENDANTS, OR ANY OF THEM FROM THE FURTHER INTERFERENCE AND THREATENED
ACTS, WHICH WOULD IN ANY WAY PREVENT THE FREE EXERCISE OF A RELIGIOUS
LIBERTY OF SAID PLAINTIFF." 

FROM THIS DECISION AN APPEAL WAS TAKEN TO THE DISTRICT COURT OF
APPEAL OF THE SECOND APPELLATE DIVISION, DIVISION TWO, AND THE CAUSE
WAS THEN TRANSFERRED TO THE SUPREME COURT OF CALIFORNIA.  THAT COURT
HELD, THREE JUDGES DISSENTING, THAT THE SUPERIOR COURT'S ACTION IN
GRANTING THE INJUNCTION WAS ERRONEOUS.  27 CAL.2D 232.  SOME, IF NOT
ALL, OF THE ORDINANCES IN SUIT WERE SUSTAINED AS CONSTITUTIONAL.  ON
APPEAL TO THIS COURT DETERMINATION OF JURISDICTION WAS POSTPONED TO THE
MERITS. 

THE JURISDICTIONAL DIFFICULTIES ARISE FROM THE FORM OF THE CALIFORNIA
SUPREME COURT'S JUDGMENT.  THAT COURT ENDED ITS OPINION WITH THE
STATEMENT, "THE JUDGMENT IS REVERSED."  ITS JUDGMENT WAS IN THE SAME
FORM:  "IT IS ORDERED, ADJUDGED, AND DECREED BY THE COURT THAT THE
JUDGMENT OF THE SUPERIOR COURT IN AND FOR THE COUNTY OF LOS ANGELES IN
THE ABOVE ENTITLED CAUSE, BE AND THE SAME IS HEREBY REVERSED."  IN
CALIFORNIA AN UNQUALIFIED REVERSAL, "THAT IS TO SAY, WITHOUT DIRECTION
TO THE TRIAL COURT," IS EFFECTIVE TO REMAND THE CASE "FOR A NEW TRIAL
AND PLACES THE PARTIES IN THE SAME POSITION AS IF THE CASE HAD NEVER
BEEN TRIED."  ERLIN V. NATIONAL UNION FIRE INS. CO., 7 CAL.2D 547, 549;
STEARNS V. AGUIRRE, 7 CAL. 443, 448; CENTRAL SAV. BANK V. LAKE, 201
CAL. 438, 443; RICHFIELD OIL CORP. V. STATE BOARD OF EQUALIZATION, 329
U.S. 69, 72; 2 CAL. JUR.  SEC.  590. 

UNDER SEC. 237 OF THE JUDICIAL CODE, 28 U.S.C., SEC. 344, ONLY "FINAL
JUDGMENTS" OF STATE COURTS MAY BE APPEALED TO THIS COURT.  AND IT
FREQUENTLY HAS BEEN SAID THAT FOR A JUDGMENT OF AN APPELLATE COURT TO
BE FINAL AND REVIEWABLE FOR THIS PURPOSE IT MUST END THE LITIGATION BY
FULLY DETERMINING THE RIGHTS OF THE PARTIES, SO THAT NOTHING REMAINS TO
BE DONE BY THE TRIAL COURT "EXCEPT THE MINISTERIAL ACT OF ENTERING THE
JUDGMENT WHICH THE APPELLATE COURT  ...  DIRECTED."  DEPARTMENT OF
BANKING V. PINK, 317 U.S. 264, 267.  THUS, WHERE THE EFFECT OF THE
STATE COURT'S DIRECTION IS TO GRANT A NEW TRIAL, THE JUDGMENT WILL NOT
BE FINAL. 

INCREASINGLY THIS COURT HAS BECOME LESS FORMAL IN THE MATTER OF FINAL
JUDGMENTS.  IT IS NO LONGER THE RULE THAT THE FACE OF THE JUDGMENT IS
DETERMINATIVE OF WHETHER IT IS FINAL.  FN4  TODAY "THE TEST IS NOT
WHETHER UNDER LOCAL RULES OF PRACTICE THE JUDGMENT IS DENOMINATED FINAL
...  BUT RATHER WHETHER THE RECORD SHOWS THAT THE ORDER OF THE
APPELLATE COURT HAS IN FACT FULLY ADJUDICATED RIGHTS AND THAT THAT
ADJUDICATION IS NOT SUBJECT TO FURTHER REVIEW BY A STATE COURT ...  "
DEPARTMENT OF BANKING V. PINK, 317 U.S. AT 268. 

THUS, THIS TERM IN RICHFIELD OIL CORP. V. STATE BOARD OF
EQUALIZATION, SUPRA, DESPITE THE FACT THAT THE SUPREME COURT OF
CALIFORNIA HAD REVERSED A JUDGMENT WITHOUT DIRECTIONS, WE DETERMINED ON
THE ENTIRE RECORD AND UPON AN INDEPENDENT INVESTIGATION OF CALIFORNIA
LAW THAT THE JUDGMENT WAS FINAL FOR THE PURPOSES OF SEC. 237.  IN THE
FIRST PLACE, THE FACTS HAD BEEN STIPULATED AND, SO FAR AS APPEARED, THE
STIPULATION WOULD HAVE BEEN AVAILABLE AND CONTROLLING UPON A SECOND
TRIAL.  IN THE SECOND PLACE, THE SUIT WAS ONE FOR A REFUND OF A TAX AND
UNDER CALIFORNIA LAW ONLY THOSE GROUNDS PRESENTED IN THE PRIOR CLAIM
FOR REFUND COULD BE URGED IN THE SUIT.  THE OPINION STATED: "SINCE THE
FACTS HAVE BEEN STIPULATED AND THE SUPREME COURT OF CALIFORNIA HAS
PASSED ON THE ISSUES WHICH CONTROL THE LITIGATION, WE TAKE IT THAT
THERE IS NOTHING MORE TO BE DECIDED."  329 U.S. AT 73-74. 

IN THIS CASE, HOWEVER, THE FACTS HAVE NOT BEEN STIPULATED, NOR ARE
THERE ANY SPECIAL PROCEDURAL RESTRICTIONS.  THUS, UNDER CALIFORNIA LAW,
THE GOSPEL ARMY ON THE SECOND TRIAL TO WHICH IT IS ENTITLED MAY AMEND
ITS COMPLAINT AND PRESENT NEW FACTS.  "SUCH A REVERSAL REMANDS THE CASE
FOR A NEW TRIAL AND PLACES THE PARTIES IN THE SAME POSITION AS IF THE
CASE HAD NEVER BEEN TRIED.  ... OF COURSE, UPON A RETRIAL THE DECISION
OF THE APPELLATE COURT BECOMES THE LAW OF THE CASE UPON THE FACTS AS
THEN PRESENTED.  BUT THAT LAW MUST BE APPLIED BY THE TRIAL COURT TO THE
EVIDENCE PRESENTED UPON THE SECOND TRIAL.  'IT IS SETTLED BEYOND
CONTROVERSY THAT A DECISION OF THIS COURT UPON APPEAL, AS TO A (MATTER)
OF FACT, DOES NOT BECOME THE LAW OF THE CASE.'"  ERLIN V. NATIONAL
UNION FIRE INS. CO., 7 CAL.2D AT 549. 

WE CANNOT ASSUME THAT THE SUPREME COURT OF CALIFORNIA WOULD HOLD THE
ORDINANCES IN QUESTION CONSTITUTIONAL NO MATTER WHAT FACTS MIGHT BE
PRESENTED UPON A SECOND TRIAL.  INDEED, EXPERIENCE DEMONSTRATES THAT
PARTICULARLY IN CONSTITUTIONAL CASES ISSUES TURN UPON FACTUAL
PRESENTATION. 

ACCORDINGLY, THE CASE DOES NOT FALL WITHIN THE SPECIFIC HOLDING OF
THE RICHFIELD OIL CASE, FOR, ALTHOUGH THE MODERN RULE IS THAT IN
DETERMINING WHETHER THE STATE COURT'S REMAND IS FOR A NEW TRIAL THIS
COURT WILL EXAMINE BOTH THE JUDGMENT AND THE OPINION AS WELL AS OTHER
CIRCUMSTANCES WHICH MAY BE PERTINENT, DEPARTMENT OF BANKING V. PINK,
SUPRA; RICHFIELD OIL CORPORATION V. STATE BOARD OF EQUALIZATION, SUPRA,
THIS DOES NOT MEAN THAT IN THE ORDINARY CASE WE WILL DISREGARD THE
EFFECT OF THE JUDGMENT UNDER THE LOCAL LAW.  IN THIS CASE, FOR EXAMPLE,
THE EFFECT OF THE JUDGMENT UNDER STATE PRACTICE IS TO REMAND THE CASE
FOR A NEW TRIAL.  NOTHING IN THE OPINION OF THE COURT IS TO THE
CONTRARY.  WE CANNOT ASSUME THAT THE STATE COURT MADE AN ERROR IN ITS
JUDGMENT, CLERICAL OR OTHERWISE.  IF THE PARTIES HAD THOUGHT SO, THEY
COULD HAVE MOVED TO HAVE IT AMENDED.  INDEED, THAT COURSE MAY STILL BE
OPEN TO THEM. 

THE APPEAL IS DISMISSED. 

FN1  THE MONEY RECEIVED FROM THE SALES IS USED TO MEET THE COST OF
OPERATING THE STORE, INCLUDING COMPENSATION PAID TO THE MANAGER AND TO
THOSE WHO SOLICIT CONTRIBUTIONS.  WHATEVER REMAINS GOES INTO THE
CORPORATE TREASURY. 

FN2  NINETY PER CENT OF THE MONEY RECEIVED FOR THE GOODS SENT TO THE
SALVAGE MILL IS PAID TO THE DRIVERS OF TRUCKS USED BY THE GOSPEL ARMY
TO COLLECT THE SALVAGE.  THE OTHER TEN PER CENT GOES INTO THE
TREASURY. 

FN3  IT IS UNNECESSARY TO CONSIDER PRECISELY WHAT ORDINANCES WERE
INVOLVED IN THIS CASE OR WERE SUSTAINED BY THE CALIFORNIA SUPREME
COURT.  SEE RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549. 

FN4  FOR CASES INCORPORATING THE OLD "FACE OF THE JUDGMENT" RULE,
SEE, E.G., BRUCE V. TOBIN, 245 U.S. 18; SCHLOSSER V. HEMPHILL, 198 U.S.
173; HASELTINE V. CENTRAL BANK, 183 U.S. 130.  THERE WAS STRONG DISSENT
TO THE ABANDONMENT OF THE RULE.  SEE THE SEPARATE OPINION OF
MCREYNOLDS, J., IN CLARK V. WILLIARD, 292 U.S. 112, 129.  AND FOR
GENERAL DISCUSSION, CF. BOSKEY, FINALITY OF STATE COURT JUDGMENTS UNDER
THE FEDERAL JUDICIAL CODE (1943) 43 COL. L. REV. 1002, 1003-1008;
ROBERTSON AND KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE UNITED
STATES (1936) 54-57. 
..END :





















RESCUE ARMY V. MUNICIPAL COURT, 331 U.S. 549 


NO. 574.  ARGUED FEBRUARY 6, 7, 1947.  - DECIDED JUNE 9, 1947.  - 28
CAL.2D 460, 171 P.2D 8, APPEAL DISMISSED WITHOUT PREJUDICE. 


BEING CHARGED IN A MUNICIPAL COURT IN CALIFORNIA ON TWO COUNTS WITH
VIOLATIONS OF THREE SECTIONS OF A MUNICIPAL CODE GOVERNING THE
SOLICITATION OF CONTRIBUTIONS FOR CHARITY, WHICH SECTIONS INCORPORATED
BY REFERENCE NUMEROUS OTHER SECTIONS OF AN INTRICATE AND AMBIGUOUS
CHAPTER, APPELLANTS SUED FOR A WRIT OF PROHIBITION TO TEST THE
JURISDICTION OF THE TRIAL COURT, CLAIMING THAT THE CODE UNDULY ABRIDGED
THE FREE EXERCISE OF THEIR RELIGION CONTRARY TO THE FIRST AND
FOURTEENTH AMENDMENTS.  IN AN OPINION WHICH AMBIGUOUSLY INCORPORATED BY
REFERENCE PARTS OF ITS OPINION IN ANOTHER CASE INVOLVING A WIDER RANGE
OF ISSUES, THE SUPREME COURT OF CALIFORNIA SUSTAINED THE VALIDITY OF
THE CODE AND THE JURISDICTION OF THE MUNICIPAL COURT WITHOUT CLEARLY
IDENTIFYING OR CONSTRUING THE RELEVANT PROVISIONS OF THE CODE OR
PASSING UPON QUESTIONS OF LOCAL PROCEDURE NECESSARILY INVOLVED.  HELD: 

1.  THE STATE SUPREME COURT'S JUDGMENT IS "FINAL" WITHIN THE MEANING
OF SEC. 237(A) OF THE JUDICIAL CODE AND THIS COURT HAS JURISDICTION OF
AN APPEAL THEREFROM.  BANDINI CO. V. SUPERIOR COURT, 284 U.S. 8; BRYANT
V. ZIMMERMAN, 278 U.S. 63; PLESSY V. FERGUSON, 163 U.S. 537, FOLLOWED. 
GOSPEL ARMY V. LOS ANGELES, ANTE, P. 543, DISTINGUISHED.  PP. 556-568. 

2.  THIS COURT, PURSUANT TO LONG-SETTLED POLICY IN DISPOSITION OF
CONSTITUTIONAL QUESTIONS, DECLINES TO EXERCISE ITS JURISDICTION TO PASS
UPON THE CONSTITUTIONAL ISSUES RAISED IN THE APPEAL; SINCE THEY ARE
PRESENTED IN A HIGHLY ABSTRACT AND SPECULATIVE FORM AND THE STATE
SUPREME COURT HAS NOT CLEARLY INTERPRETED THE NUMEROUS AMBIGUOUS AND
INTERDEPENDENT PROVISIONS OF THE INTRICATE CHAPTER OUT OF WHICH THEY
ARISE.  PP. 574-585. 

3.  DECISION OF THE CONSTITUTIONAL QUESTIONS BY THIS COURT SHOULD
AWAIT THE DETERMINATION WHICH NECESSARILY WILL BE MADE IN THE FURTHER
PROCEEDINGS IN THE MUNICIPAL COURT WHETHER IN THE FIRST COUNT
APPELLANTS HAVE BEEN CHARGED INDEPENDENTLY OR ALTERNATIVELY UNDER TWO
SUBSECTIONS.  PP. 576-577. 

4.  IN A CASE SUCH AS THIS, THE JURISDICTION OF THIS COURT TO
ADJUDICATE CONSTITUTIONAL ISSUES SHOULD BE EXERTED ONLY WHEN THEY ARE
PRESENTED IN CLEAN-CUT AND CONCRETE FORM, UNCLOUDED BY ANY SERIOUS
PROBLEM OF CONSTRUCTION RELATING EITHER TO THE TERMS OF THE QUESTIONED
LEGISLATION OR TO ITS INTERPRETATION BY THE STATE COURTS.  P. 584. 

5.  THE APPEAL IS DISMISSED WITHOUT PREJUDICE TO THE DETERMINATION IN
THE FUTURE OF ANY ISSUES ARISING UNDER THE FEDERAL CONSTITUTION FROM
FURTHER PROCEEDINGS IN THE MUNICIPAL COURT.  PP. 584-585. 

RESCUE ARMY ET AL. V. MUNICIPAL COURT OF LOS ANGELES. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

THE SUPREME COURT OF CALIFORNIA DENIED A WRIT OF PROHIBITION TO TEST
THE JURISDICTION OF A MUNICIPAL COURT TO TRY APPELLANTS FOR ALLEGED
VIOLATIONS OF A MUNICIPAL CODE GOVERNING THE SOLICITATION OF
CONTRIBUTIONS FOR CHARITY, WHICH THEY CHALLENGED AS UNDULY ABRIDGING
THE FREE EXERCISE OF THEIR RELIGION CONTRARY TO THE FIRST AND
FOURTEENTH AMENDMENTS.  28 CAL.2D 460, 171 P.2D 8.  APPEAL DISMISSED,
WITHOUT PREJUDICE TO THE DETERMINATION IN THE FUTURE OF ANY ISSUES
ARISING UNDER THE FEDERAL CONSTITUTION FROM FURTHER PROCEEDINGS IN THE
MUNICIPAL COURT.  P. 585. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

ON THE MERITS THIS APPEAL PRESENTS SUBSTANTIAL QUESTIONS CONCERNING
THE CONSTITUTIONAL VALIDITY OF ORDINANCES OF THE CITY OF LOS ANGELES
GOVERNING THE SOLICITATION OF CONTRIBUTIONS FOR CHARITY.  FIRST AND
FOURTEENTH AMENDMENT GROUNDS ARE URGED AS NULLIFYING THEM CHIEFLY IN
THE VIEW THAT THEY IMPOSE PRIOR RESTRAINTS UPON AND UNDULY ABRIDGE
APPELLANTS' RIGHTS IN THE FREE EXERCISE OF THEIR RELIGION.  THOSE
RIGHTS, AS CLAIMED, ARE TO ENGAGE IN SOLICITING DONATIONS FOR CHARITY
AS A PART OF THEIR RELIGION FREE FROM THE ORDINANCES' RESTRICTIONS. 

SIMILAR, BUT ALSO DISTINCT, QUESTIONS WERE INVOLVED IN GOSPEL ARMY V.
LOS ANGELES, DISMISSED TODAY FOR JURISDICTIONAL REASONS.  331 U.S.
543.  THIS CASE, HOWEVER, AROSE PROCEDURALLY IN A DIFFERENT FASHION, SO
THAT IT IS NOT SUBJECT TO THE SAME JURISDICTIONAL DEFECT.  AND THE
PROCEDURAL DIFFERENCE IS IMPORTANT, NOT MERELY FOR OUR JURISDICTION BUT
ALSO FOR DETERMINING THE PROPRIETY OF EXERCISING IT IN THE SPECIAL
CIRCUMSTANCES PRESENTED BY THIS APPEAL. 

THE CALIFORNIA SUPREME COURT HEARD AND DETERMINED THE GOSPEL ARMY
CASE SEVERAL MONTHS IN ADVANCE OF THIS ONE.  IT SUSTAINED THE
REGULATIONS IN BOTH INSTANCES, FILING SEPARATE OPINIONS IN EACH CASE. 
27 CAL.2D 232; 28 CAL.  2D 460.  BUT THE ATTACK UPON THE CITY
ORDINANCES IN THE GOSPEL ARMY CASE COVERED A MUCH WIDER RANGE THAN
HERE, AND THE COURT'S PRINCIPAL OPINION WAS RENDERED IN THAT CAUSE. 
HENCE IN THIS CASE IT DISPOSED OF OVERLAPPING ISSUES MERELY BY
REFERENCE A FORTIORI TO ITS "APPROVAL" OF THE CHALLENGED PROVISIONS IN
THE GOSPEL ARMY OPINION. 

AS WILL MORE FULLY APPEAR, THIS MODE OF TREATMENT, TOGETHER WITH
INTERLACING RELATIONSHIPS BETWEEN PROVISIONS INVOLVED HERE AND OTHERS
IN THE GOSPEL ARMY CASE, HAS COMBINED WITH THE NECESSITATED DISMISSAL
OF THAT APPEAL TO CREATE FOR US DIFFICULT PROBLEMS IN DETERMINING
EXACTLY HOW MUCH OF THE REGULATORY SCHEME APPROVED IN THE GOSPEL ARMY
OPINION, AND HENCE ALSO HOW MUCH OF THAT DECISION, MUST BE TAKEN AS
HAVING BEEN INCORPORATED IN THE DISPOSITION OF THIS CAUSE.  BY VIRTUE
OF THE CALIFORNIA COURT'S METHOD OF DECISION, WE ARE LARGELY WITHOUT
BENEFIT OF ITS JUDGMENT UPON THESE MATTERS, INCLUDING POSSIBLE
QUESTIONS OF SEVERABILITY.  CONSEQUENTLY, THIS FACT, TOGETHER WITH THE
DIFFERENT JURISDICTIONAL POSTURES IN WHICH THE CASES REACH THIS COURT,
WOULD FORCE US TO DETERMINE THOSE QUESTIONS INDEPENDENTLY BEFORE
UNDERTAKING ANY DECISION ON THE MERITS. 

THAT NECESSITY AND THE DIFFICULTIES TENDERED BY THE EXTRICATING
PROBLEM RAISE SUBSTANTIAL QUESTIONS CONCERNING THE DISPOSITION
APPROPRIATE, IN THE UNUSUAL SITUATION, TO BE MADE OF THIS APPEAL.  IN
ORDER TO PRESENT THE PROBLEM WITH A FAIR DEGREE OF PRECISION, IT IS
NECESSARY TO STATE IN SOME DETAIL THE NATURE OF THE TWO PROCEEDINGS,
THEIR RELATIONSHIPS TO EACH OTHER, AND THEIR PROCEDURAL AS WELL AS
JURISDICTIONAL DIFFERENCES. 

                                  I. 

THIS SUIT IS ONE FOR A WRIT OF PROHIBITION.  THE APPEAL IS FROM THE
CALIFORNIA SUPREME COURT'S JUDGMENT DENYING APPELLANTS' APPLICATION FOR
SUCH A WRIT.  28 CAL.2D 460.  THEY INSTITUTED THE SUIT IN THE DISTRICT
COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION THREE, OF
CALIFORNIA.  ITS OBJECT WAS TO TEST THE JURISDICTION OF THE RESPONDENT
MUNICIPAL COURT OF LOS ANGELES TO PROCEED WITH A PENDING CRIMINAL
PROSECUTION AGAINST MURDOCK, WHO IS AN OFFICER OF THE RESCUE ARMY.  IN
THAT COURT HE HAD BEEN CHARGED WITH VIOLATING THREE PROVISIONS OF THE
CITY ORDINANCES, HAD BEEN TWICE CONVICTED, AND TWICE THE CONVICTIONS
HAD BEEN REVERSED BY THE SUPERIOR COURT OF LOS ANGELES COUNTY.  FN1 

WHILE THE CASE WAS PENDING IN THE MUNICIPAL COURT AFTER THE SECOND
REVERSAL, APPELLANTS FILED THEIR PETITION IN THIS CAUSE IN THE DISTRICT
COURT OF APPEAL.  ALLEGING THAT THE MUNICIPAL COURT WAS THREATENING TO
PROCEED WITH A THIRD TRIAL ON THE SAME CHARGES, THEY SET FORTH GROUNDS
HELD SUFFICIENT UNDER THE STATE PROCEDURE TO PRESENT FOR ADJUDICATION
THE QUESTION OF THE MUNICIPAL COURT'S JURISDICTION.  28 CAL.2D AT 462
467. 

THE DISTRICT COURT OF APPEAL DENIED THE WRIT.  THEREUPON THE STATE
SUPREME COURT TRANSFERRED THE CAUSE TO ITS OWN DOCKET AND ISSUED AN
ALTERNATIVE WRIT OF PROHIBITION PENDING DETERMINATION THERE.  AS IN THE
GOSPEL ARMY CASE, THE SUPREME COURT, WITH THREE OF THE SEVEN JUSTICES
DISSENTING, DECIDED THE ISSUES ON THE MERITS AGAINST THE APPELLANTS. 
IT THEREFORE DENIED THE WRIT, AT THE SAME TIME DISCHARGING THE
ALTERNATIVE WRIT.  IN SHORT EFFECT THE ORDINANCES, INSOFAR AS THEY WERE
INVOLVED, WERE SUSTAINED AS AGAINST THE CONSTITUTIONAL AND OTHER
OBJECTIONS RAISED CONCERNING THEM.  PROBABLE JURISDICTION WAS DULY
NOTED HERE, AND THE CAUSE WAS ASSIGNED FOR ARGUMENT IMMEDIATELY
FOLLOWING THE GOSPEL ARMY CASE. 

APPARENTLY MURDOCK WAS CHARGED IN THE MUNICIPAL COURT WITH VIOLATING
THREE SECTIONS OF THE MUNICIPAL CODE.  THESE WERE SECS. 44.09(A),
44.09(B), AND 44.12 OF ARTICLE 4, CHAPTER IV.  FN2 SECTIONS 44.09(A)
AND (B) FORMED THE BASIS FOR THE FIRST COUNT AGAINST MURDOCK.  FN3
COLLOQUIALLY SPEAKING, SEC. 44.09 IS A "TIN-CUP" ORDINANCE.  IN
SUMMARY, ITS TWO SUBDIVISIONS, (A) AND (B), PROHIBIT SOLICITATIONS IN
THE SPECIFIED PUBLIC PLACES OR ADJACENT AREAS "BY MEANS OF ANY BOX OR
RECEPTACLE" EXCEPT, UNDER (A), "BY THE EXPRESS WRITTEN PERMISSION OF
THE BOARD (OF SOCIAL SERVICE COMMISSIONERS)"; UNDER (B), "WITHOUT FIRST
FILING WITH THE DEPARTMENT (OF SOCIAL SERVICE) A 'NOTICE OF INTENTION'
AS REQUIRED BY SEC. 44.05" AND, LITERALLY, OBEYING THE FURTHER COMMAND
THAT "EVERY PERSON SO SOLICITING MUST IN ALL OTHER RESPECTS COMPLY WITH
THE PROVISIONS OF THIS ARTICLE."  FN4  THE FULL TEXT OF THE SECTION IS
SET FORTH IN THE MARGIN.  FN5 

THE SECOND COUNT CHARGED VIOLATION OF SEC. 44.12 BY SOLICITING
WITHOUT EXHIBITING OR READING TO THE PERSONS SOLICITED AN INFORMATION
CARD ISSUED BY THE LOS ANGELES BOARD OF SOCIAL SERVICE COMMISSIONERS. 
SOLICITATION.  IT IS IN THE FOLLOWING WORDS: 

"NO PERSON SHALL SOLICIT ANY CONTRIBUTIONS UNLESS HE EXHIBITS AN
INFORMATION CARD PROVIDED FOR IN SEC. 44.03 OF THIS ARTICLE AND READS
IT TO THE PERSON SOLICITED OR PRESENTS IT TO SAID PERSON FOR HIS
PERUSAL, ALLOWING HIM SUFFICIENT OPPORTUNITY TO READ SAME, BEFORE
ACCEPTING ANY CONTRIBUTION SO SOLICITED." 

OBVIOUSLY NEITHER SEC. 44.09(B) NOR SEC. 44.12 IS SELF-CONTAINED. 
EACH INCORPORATES BY REFERENCE OTHER SECTIONS OF THE CODE.  THUS, IT IS
NECESSARY TO TAKE INTO ACCOUNT, UNDER SEC. 44.09(B), THE PROVISIONS OF
SEC. 44.05 REQUIRING THE FILING OF THE "NOTICE OF INTENTION" AS WELL AS
THE OMNIBUS REQUIREMENT OF COMPLIANCE "IN ALL OTHER RESPECTS  ...  WITH
THE PROVISIONS OF THIS ARTICLE"; UNDER SEC. 44.12, THE REQUIREMENTS OF
SEC. 44.03 CONCERNING ISSUANCE OF THE INFORMATION CARD.  ENFORCEMENT OF
SEC. 44.09(A), WHICH DOES NOT REFER SPECIFICALLY TO OTHER SECTIONS,
NECESSARILY INVOLVES CONSIDERATION OF WHATEVER REQUIREMENTS MAY RELATE
TO SECURING THE BOARD'S WRITTEN PERMISSION. 

THE ISSUE OF THE MUNICIPAL COURT'S JURISDICTION THEREFORE, INSOFAR AS
IT CONCERNS US, TURNS UPON THE VALIDITY OF SECS. 44.09(A), 44.09(B) AND
44.12, TOGETHER WITH THE OTHER PROVISIONS NECESSARILY INCORPORATED IN
THEM BY REFERENCE; AND, UPON THIS APPEAL, THEIR VALIDITY NOT ONLY IS
RELATIVE SOLELY TO THE EFFECT OF THE FEDERAL CONSTITUTIONAL
PROHIBITIONS, BUT MUST BE DETERMINED IN LIGHT OF THE CALIFORNIA SUPREME
COURT'S INTERPRETATION, INCLUDING THE EXTENT TO WHICH OTHER PROVISIONS
HAVE BEEN INCORPORATED.  MOREOVER THE JURISDICTIONAL QUESTION ARISES
SUBSTANTIALLY AS UPON DEMURRER TO THE CHARGES, SINCE TRIAL HAS NOT BEEN
HAD AND THE ISSUE CONCERNS ONLY THE MUNICIPAL COURT'S POWER TO PROCEED
WITH THE CRIMINAL CAUSE.  HENCE ONLY THE VALIDITY OF THE PROVISIONS ON
THEIR FACE, NOT AS APPLIED TO PROVEN CIRCUMSTANCES, IS CALLED IN
QUESTION.  FN6 

THE GOSPEL ARMY CASE, ON THE OTHER HAND, WAS AN INJUNCTION SUIT, IN
WHICH ATTACK WAS PROJECTED ON A BROAD FRONT AGAINST THE ORDINANCES AND
THE SCHEME OF REGULATION THEY EMBODY AS A WHOLE.  FOR SOME REASON SEC.
44.09(A) WAS NOT ATTACKED IN THAT SUIT.  BUT SEC. 44.09(B) WAS INVOLVED
INDIRECTLY THROUGH ITS RELATION TO SEC. 44.05 AND SEC. 44.12 DIRECTLY,
AS WELL AS NUMEROUS OTHER PROVISIONS BOTH OF ARTICLE 4, CHAPTER IV, AND
OUTSIDE IT.  THAT ARTICLE, AS WE HAVE NOTED ABOVE, CONSISTS OF CODE
SECS. 44.01-44.19, ENTITLED "CHARITIES AND RELIEF," AND THUS INCLUDES
ALL OF THE SECTIONS INVOLVED HERE AS WELL AS MANY OTHERS WHICH WERE IN
ISSUE IN THE GOSPEL ARMY CASE. 

IT IS THIS SETTING OF DOVETAILED LEGISLATIVE ENACTMENTS AND JUDICIAL
DECISIONS WHICH CREATES THE PRIMARY PROBLEM FOR OUR DISPOSITION.  THOSE
INTERRELATIONS, OF THE CASES AND OF THE ORDINANCES THEY INVOLVE, WILL
BE BETTER UNDERSTOOD IN THE SETTING OF A SUMMARY OF THE GENERAL
SCHEME. 

II. 

THE MUNICIPAL CODE REGULATES BOTH CHARITABLE AND OTHER SOLICITATIONS,
AS WELL AS PAWNBROKERS, SECONDHAND DEALERS, JUNK DEALERS, ETC.  THE
REGULATIONS AFFECTING THOSE DEALERS LIE OUTSIDE ARTICLE 4 AND BECAME
PERTINENT IN THE GOSPEL ARMY CASE BECAUSE OF THAT ORGANIZATION'S
ACTIVITIES IN COLLECTING, REPAIRING, SELLING AND GIVING AWAY USED
ARTICLES.  FN7  NONE OF THOSE REGULATIONS, HOWEVER, APPEARS TO BE
INVOLVED HERE.  FN8  THE MUNICIPAL COURT CHARGES, SO FAR AS WE CAN NOW
ASCERTAIN, RELATE EXCLUSIVELY TO CHARITABLE SOLICITATIONS AND
CONSEQUENTLY ARE COMPREHENDED WITHIN ARTICLE 4.  FN9  WE THEREFORE ARE
RELIEVED OF THE NECESSITY FOR TAKING ACCOUNT OF ANY OF THE CODE
PROVISIONS OUTSIDE THAT ARTICLE. 

ARTICLE 4, HOWEVER, COMPREHENDS NUMEROUS INTERRELATED SECTIONS AND
SUBDIVISIONS.  THEY PROVIDE A BROAD AND GENERAL, THOUGH ALSO HIGHLY
DETAILED AND INTEGRATED, PLAN FOR REGULATING SOLICITATIONS IN LOS
ANGELES.  THE SECTIONS HERE IN QUESTION ARE INTEGRAL PARTS OF THAT
PLAN. 

IT IS DESIGNED PRIMARILY, THOUGH NOT EXCLUSIVELY, TO SECURE A MAXIMUM
OF INFORMATION AND PUBLICITY FOR THE PUBLIC.  IT SEEKS TO MAKE
AVAILABLE TO ALL PERSONS SOLICITED DETAILED INFORMATION CONCERNING THE
PERSONS SOLICITING, THE CAUSES OR ORGANIZATIONS ON BEHALF OF WHICH THEY
ACT, AND THE USES TO WHICH THE DONATIONS WILL BE PUT.  THE PLAN ALSO
UNDERTAKES, IN OTHER WAYS, TO ASSURE RESPONSIBILITY, BOTH MORAL AND
FINANCIAL, ON THE PART OF SOLICITING INDIVIDUALS AND AGENCIES; AND TO
SEE TO IT THAT THE FUNDS COLLECTED ARE APPLIED TO THEIR APPROPRIATE
PURPOSES. 

MACHINERY FOR EXECUTING THE SCHEME IS CREATED THROUGH THE
ESTABLISHMENT OF A DEPARTMENT OF SOCIAL SERVICE AND A BOARD OF SOCIAL
SERVICE COMMISSIONERS, EACH WITH SPECIFIED ADMINISTRATIVE POWERS.  FN10
COMPREHENSIVE AND DETAILED DEFINITIONS OF ACTIVITIES AFFECTED AND
CORRELATIVE PROHIBITIONS ARE PRESCRIBED, TOGETHER WITH VARIOUS
PROVISIONS FOR EXEMPTION.  VIOLATION OF THE PROHIBITIONS, WHICH
GENERALLY REQUIRE COMPLIANCE WITH ONE OR MORE OTHER REGULATIONS, IS
MADE PUNISHABLE BY CRIMINAL SANCTIONS. 

MORE NARROWLY, INSOFAR AS THE PLAN IS RELEVANT HERE, ANY PERSON OR
ASSOCIATION DESIRING TO SOLICIT CONTRIBUTIONS FOR A CHARITABLE PURPOSE
FN11  MUST FILE WITH THE DEPARTMENT, AT LEAST TEN DAYS BEFORE BEGINNING
TO SOLICIT, A WRITTEN "NOTICE OF INTENTION."  SEC. 44.05.  THIS IS, IN
SUBSTANCE, AN APPLICATION FOR THE "INFORMATION CARD" PROVIDED FOR IN
SEC. 44.03(D).  IT WILL BE RECALLED THAT SEC. 44.09(B), IN ISSUE HERE,
EXPRESSLY REQUIRES THE FILING OF THIS NOTICE.  AND SEC. 44.12, ALSO
DIRECTLY IN ISSUE, REQUIRES EXHIBITION OF THE CARD BEFORE SOLICITATION
MAY LAWFULLY TAKE PLACE. 

THE NOTICE MUST BE FILED ON A FORM FURNISHED BY THE DEPARTMENT AND
MUST CONTAIN THE "COMPLETE INFORMATION" SPECIFIED IN THE MARGIN.  FN12
SEC. 44.05.  THE DEPARTMENT IS AUTHORIZED, AMONG OTHER THINGS, TO
INVESTIGATE THE STATEMENTS CONTAINED IN THE NOTICE AND TO ISSUE
INFORMATION CARDS "TO ALL SOLICITORS."  FN13  SEC. 44.03.  THOSE CARDS
MUST SHOW THE DETAILED MATTERS SPECIFIED BELOW.  FN14  IBID.  THE BOARD
IS EMPOWERED TO PUBLISH THE RESULTS OF THE INVESTIGATIONS PROVIDED FOR
IN SEC. 44.03  FN15  AND TO EXERCISE OTHER POWERS, SUCH AS ENDORSING A
SOLICITING ASSOCIATION, WAIVING SPECIFIED REQUIREMENTS, AND RECALLING
THE INFORMATION CARDS FOR CORRECTION.  FN16 SECS. 44.02, 44.03.  A FEE
OF FOUR CENTS PER CARD IS CHARGED, WHEN ISSUED, UNLESS MORE THAN TWENTY
FIVE ARE ISSUED AT ONE TIME FOR THE SAME SOLICITATION.  IN THAT EVENT
THE FEE BECOMES ONE CENT PER CARD.    THE FOREGOING REGULATIONS APPLY,
ON THE FACE OF THE ORDINANCE, TO CHARITABLE SOLICITATIONS AS
REQUIREMENTS IN THE NATURE OF CONDITIONS PRECEDENT, COMPLIANCE WITH
WHICH IS NECESSARY BEFORE SOLICITATION MAY BE LAWFULLY MADE.  THERE ARE
ALSO OTHER REQUIREMENTS WHICH BECOME APPLICABLE DURING AND AFTER THE
ACT OF SOLICITATION.  ONE IS THAT OF SEC. 44.15, WHICH COMMANDS PERSONS
SOLICITING FOR CHARITY TO TENDER TO EACH CONTRIBUTOR A WRITTEN RECEIPT
CONTAINING SPECIFIED DETAILED INFORMATION.  FN17  AND BY SEC. 44.14
EVERY SUCH SOLICITOR MUST FILE WITH THE DEPARTMENT, WITHIN THIRTY DAYS
AFTER "THE CLOSE OF ANY SUCH SOLICITATION" OR DEMAND, A REPORT SHOWING
THE CONTRIBUTIONS SECURED AND "EXACTLY FOR WHAT USES AND IN WHAT
MANNER" THEY "WERE OR ARE TO BE DISBURSED." 

ARTICLE 4, MOREOVER, CLASSIFIES PERSONS SOLICITING INTO THREE GROUPS,
TWO OF WHICH ARE PRIMARY, NAMELY, "PROMOTERS" AND "SOLICITORS." 
"SOLICITORS," AS WILL APPEAR, ARE SUBDIVIDED INTO TWO CLASSES.  THE
REGULATIONS BEARING UPON PROMOTERS ARE MORE ONEROUS THAN THOSE TOUCHING
SOLICITORS AND ARE CONTAINED IN SEC. 44.19, WHICH ITSELF INCLUDES
NUMEROUS SUBDIVISIONS.  FN18 

THE EXACT DEFINITIVE DISTINCTION BETWEEN SOLICITORS AND PROMOTERS,
WHO MAY BE EITHER INSTITUTIONS OR INDIVIDUALS, IS NOT CLEAR FROM THE
DEFINITIONS GIVEN IN THE ORDINANCE N19, OR INDEED FROM THE OPINIONS
FILED IN THE STATE COURT.  FN20  BUT, SO FAR AS WE CAN GATHER, THE
PROMOTER DIFFERS FROM THE SOLICITOR, GENERALLY AT ANY RATE, AS BEING
ONE WHO ENGAGES IN SOLICITATION AS A BUSINESS OR BY EXERCISING A
MANAGERIAL OR SUPERVISORY CAPACITY OVER OTHER PERSONS ACTING AS PAID
SOLICITORS UNDER HIS DIRECTION OR PURSUANT TO A PROGRAM IN HIS CHARGE. 
FN21 

SOLICITORS ASSOCIATED WITH THEM.  A PROMOTER IS FORBIDDEN BY SEC.
44.19(9)(A) TO CAUSE OR PERMIT ANY PERSON FOR COMPENSATION "TO SOLICIT
OR RECEIVE ON HIS BEHALF OR AT HIS INSTIGATION, UNDER HIS DIRECTION OR
CONTROL OR IN HIS EMPLOYMENT, ANY CONTRIBUTION UNLESS SUCH PERSON SHALL
BE REGISTERED AS A SOLICITOR BY THE BOARD."  AND THE NEXT SUBSECTION
REQUIRES THE REGISTERED SOLICITOR TO PROVE HIS GOOD MORAL CHARACTER AND
REPUTATION FOR HONESTY, TO FILE A $500 BOND, AND TO PAY A $1.00
REGISTRATION FEE.  SEC. 44.19(9)(B), (D). 

SOLICITORS, NAMELY, REGISTERED AND UNREGISTERED, AS WELL AS THE
DISTINCTION BETWEEN PROMOTERS AND SOLICITORS; AND ESTABLISHES SPECIAL
AND MORE BURDENSOME CONDITIONS FOR LAWFUL SOLICITATION BY REGISTERED
SOLICITORS, AS WELL AS BY PROMOTERS, THAN ARE CREATED FOR SOLICITORS
NOT REQUIRED TO BE REGISTERED. 

FINALLY, WITHOUT DETAILED ELABORATION, NUMEROUS REGULATIONS IN
ADDITION TO OR INTERWOVEN WITH THOSE RELATING TO SOLICITORS OF BOTH
TYPES AND TO PROMOTERS GOVERN THE ORGANIZATIONS OR CHARITIES ON WHOSE
BEHALF THE SOLICITATIONS ARE MADE.  FN22 

THE FOREGOING SUMMARY IS PERHAPS MORE THAN SUFFICIENT TO SHOW THE
COMPREHENSIVE NATURE OF THE PLAN AND THE INTRICATELY INTERLACING
RELATIONSHIPS OF THE NUMEROUS PROVISIONS OF ARTICLE 4 MAKING UP THE
GENERAL SCHEME IN WHICH SECS. 44.09(A), (B) AND 44.12 FIND THEIR
CONTEXT AND SETTING.  SOME NO DOUBT COULD BE APPLIED INDEPENDENTLY,
PERHAPS FOR EXAMPLE SEC. 44.09(A).  FN23  BUT OTHERS ARE INTERWOVEN
WITH ONE OR MORE DISTINCT PROVISIONS TO SPECIFY ESSENTIAL CONSTITUENT
ELEMENTS.  AND IN MANY INSTANCES THE PROVISIONS SO IMPORTED REQUIRE OR
SUGGEST STILL FURTHER REFERENCE TO ADDITIONAL ONES.  THE ARTICLE IS IN
FACT A WEB OF INTRICATELY DOVETAILING REFERENCES AND CROSS-REFERENCES. 

THUS, WITH RESPECT TO THE SECTIONS INVOLVED HERE, SEC. 44.12 REQUIRES
EXHIBITION OF THE INFORMATION CARD PROVIDED FOR IN SEC. 44.03.  THIS IN
TURN FORCES REFERENCE TO SEC. 44.05, WHICH SPECIFIES THE CONDITIONS FOR
SECURING THE CARD.  AND FULFILLMENT OF THOSE CONDITIONS MAY COMPEL
RESORT TO STILL OTHER PROVISIONS.  THE SAME PROCESS MUST BE GONE
THROUGH WITH RESPECT TO SEC. 44.09(B).  FOR WHILE THAT SECTION DIFFERS
VERBALLY FROM SEC. 44.12 IN THAT IT SPECIFICALLY REQUIRES ONLY THE
FILING OF THE NOTICE OF INTENTION, NOT ISSUANCE OR EXHIBITION OF THE
INFORMATION CARD, NOT ONLY IS THE PROCEDURE FOR FILING THE NOTICE
HIGHLY DETAILED AND LARGELY SET FORTH IN OTHER SECTIONS.  IT IS ALSO
HIGHLY DOUBTFUL, IN VIEW OF THE CALIFORNIA SUPREME COURT'S DECISION,
WHETHER PERSONS SO COMPLYING AND FILING THE NOTICE WOULD BE AUTHORIZED
BY THAT ACT ALONE TO PROCEED WITH LAWFUL SOLICITATION UNDER SEC.
44.09(B), WITHOUT WAITING THE SPECIFIED TEN-DAY PERIOD (SEC. 44.05) AND
UNDERGOING THE INVESTIGATIONS PRESCRIBED BY SEC. 44.03 OR PERHAPS
ACTUALLY PROCURING THE CARD.  FN24 

IT IS NECESSARY, IN ORDER TO COMPLETE THE ENVIRONMENT OF THE PROBLEM
PRESENTED BY THE APPEAL, TO SET FORTH SOMEWHAT MORE FULLY THE MANNER IN
WHICH THE CALIFORNIA SUPREME COURT DEALT WITH SECS. 44.09(A), 44.09(B)
AND 44.12, AND RELATED PROVISIONS.  THIS, HOWEVER, MAY BEST BE DEFERRED
AT THIS POINT, IN ORDER TO STATE THE LEGAL PRINCIPLES WHICH WE THINK
ARE CONTROLLING OF OUR DISPOSITION. 

 III. 

THE GOSPEL ARMY CASE WE HAVE DISMISSED FOR THE TECHNICAL,
NEVERTHELESS IMPORTANT, REASON THAT UNDER CALIFORNIA LAW THE STATE
SUPREME COURT'S REVERSAL, WITHOUT MORE, CONTEMPLATES FURTHER
PROCEEDINGS IN THE TRIAL COURT.  CONSEQUENTLY THAT JUDGMENT IS NOT
FINAL FOR THE PURPOSES OF OUR JURISDICTION ON APPEAL, WITHIN THE
MEANING OF SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 344(A). 
331 U.S. 543. 

ON THE OTHER HAND, THIS APPEAL IS NOT SUBJECT TO THAT PARTICULAR
INFIRMITY.  THE EFFECT OF THE CALIFORNIA SUPREME COURT'S JUDGMENT, OF
COURSE, WILL BE TO PERMIT FURTHER PROCEEDINGS BY THE MUNICIPAL COURT. 
BUT UNDER THE RULE OF BANDINI CO. V. SUPERIOR COURT, 284 U.S. 8, THIS
PROHIBITION PROCEEDING WOULD BE AN INDEPENDENT SUIT, IN RELATION TO
THAT CRIMINAL PROSECUTION, "AND THE JUDGMENT FINALLY DISPOSING OF IT,"
AS DID THE STATE SUPREME COURT'S JUDGMENT, "IS A FINAL JUDGMENT WITHIN
THE MEANING OF SEC. 237(A) OF THE JUDICIAL CODE."  284 U.S. AT 14. 
FN25 

THE BANDINI CASE, LIKE THIS ONE, WAS A PROHIBITION PROCEEDING BROUGHT
IN A CALIFORNIA DISTRICT COURT OF APPEAL.  ITS OBJECT WAS TO DETERMINE
THE JURISDICTION OF A STATE SUPERIOR COURT IN AN EQUITY CAUSE.  THAT
SUIT HAD BEEN BROUGHT BY THE STATE DIRECTOR OF NATURAL RESOURCES TO
ENJOIN ALLEGED UNREASONABLE WASTE OF NATURAL GAS, PURSUANT TO THE OIL
AND GAS CONSERVATION ACT OF CALIFORNIA.  A PRELIMINARY INJUNCTION
ISSUED IN THE SUPERIOR COURT.  THEREUPON THE WRIT OF PROHIBITION WAS
SOUGHT TO RESTRAIN THE ENFORCEMENT OF THE ORDER, AND OF THE ACT, WHICH
WAS ATTACKED UNDER THE FOURTEENTH AMENDMENT ON DUE PROCESS AND EQUAL
PROTECTION GROUNDS.  THE WRIT WAS DENIED, AS WAS HEARING BY THE
CALIFORNIA SUPREME COURT.  UPON APPEAL HERE THIS COURT SUSTAINED ITS
JURISDICTION AND DETERMINED THE CONSTITUTIONAL ISSUES PRESENTED UPON
THE FACE OF THE STATUTE, FN26  AFFECTING THE SUPERIOR COURT'S
JURISDICTION, ADVERSELY TO THE APPELLANTS' CONTENTIONS. 

THE BANDINI RULING IS WELL SETTLED.  FN27  APPARENTLY, HOWEVER, IT
HAS BEEN APPLIED TO A PROCEEDING IN PROHIBITION RELATING TO A CRIMINAL
PROSECUTION IN BUT A SINGLE CASE, PLESSY V. FERGUSON, 163 U.S. 537,
WITHOUT DISCUSSION.  ON THE OTHER HAND, A CLOSE, INDEED IT WOULD SEEM A
COMPLETE, ANALOGY IS TO BE FOUND IN BRYANT V. ZIMMERMAN, 278 U.S. 63. 
IN THAT CASE BRYANT HAD BEEN CHARGED CRIMINALLY IN THE COURTS OF NEW
YORK WITH VIOLATING THAT STATE'S SO-CALLED ANTI-SECRET ORGANIZATION
STATUTE, AND WAS HELD IN CUSTODY FOR TRIAL PURSUANT TO THAT CHARGE.  HE
INSTITUTED HABEAS CORPUS PROCEEDINGS IN THE STATE COURTS, ON THE GROUND
THAT "THE WARRANT UNDER WHICH HE WAS ARRESTED AND DETAINED WAS ISSUED
WITHOUT ANY JURISDICTION, IN THAT THE STATUTE WHICH HE WAS CHARGED WITH
VIOLATING WAS UNCONSTITUTIONAL."  278 U.S. AT 65.  UPON APPEAL FROM THE
STATE COURT'S DENIAL OF THE WRIT, THIS COURT WITH ONE JUSTICE
DISSENTING ENTERTAINED THE APPEAL AND HELD THE STATUTE VALID. 

ALTHOUGH THE JURISDICTIONAL INQUIRY, IN THE STATE COURTS AND HERE,
WAS CONDUCTED IN THE SEPARATE PROCEEDING ON HABEAS CORPUS, UNLIKE THE
BANDINI CASE IT RELATED TO A CRIMINAL CAUSE, AS DOES THIS CASE.  AND
FOR THE PURPOSES OF OUR JURISDICTION UNDER SEC. 237(A) OF THE JUDICIAL
CODE, A DISTINCTION WOULD SEEM TO BE WHOLLY VERBAL BETWEEN SUCH AN
INQUIRY AND ITS DISPOSITION MADE UNDER THE STATE PROCEDURE OF HABEAS
CORPUS AND A SIMILAR ONE MADE IN A STATE PROCEEDING FOR A WRIT OF
PROHIBITION.  FN28  THOSE PROCEDURES, OF COURSE, HAVE THEIR HISTORIC
DIFFERENCES, BOTH IN AVAILABILITY AND IN SPECIFIC FUNCTION, AT THE
COMMON LAW.  BUT WHEN THEY ARE UTILIZED, UNDER STATE AUTHORIZATION,
SUBSTANTIALLY FOR THE IDENTICAL PURPOSE OF QUESTIONING THE VALIDITY OF
STATE STATUTES UNDER THE FEDERAL CONSTITUTION, AS DETERMINATIVE OF THE
JURISDICTION OF STATE COURTS TO PROCEED WITH CRIMINAL PROSECUTIONS
BASED ON THOSE ACTS, IT WOULD SEEM DIFFICULT TO FIND ANY SUBSTANTIAL
DIFFERENCE BETWEEN THEM RELATIVE TO THIS COURT'S JURISDICTION TO REVIEW
THEIR DETERMINATIONS.  THIS ASSUMES, OF COURSE, THAT THE JUDGMENT
REVIEWED UNDER ONE NAME OR THE OTHER WOULD BE SUCH AS FINALLY DISPOSES
OF THE PROCEEDING. 

WHILE THEREFORE WE ARE UNABLE TO CONCLUDE THAT THERE IS NO
JURISDICTION IN THIS CAUSE, NEVERTHELESS COMPELLING REASONS EXIST FOR
NOT EXERCISING IT. 

FROM HAYBURN'S CASE, 2 DALL.  409, TO ALMA MOTOR CO. V. TIMKEN
DETROIT AXLE CO. AND THE HATCH ACT CASE DECIDED THIS TERM,  FN29  THIS
COURT HAS FOLLOWED A POLICY OF STRICT NECESSITY IN DISPOSING OF
CONSTITUTIONAL ISSUES.  THE EARLIEST EXEMPLIFICATIONS, TOO WELL KNOWN
FOR REPEATING THE HISTORY HERE, AROSE IN THE COURT'S REFUSAL TO RENDER
ADVISORY OPINIONS AND IN APPLICATIONS OF THE RELATED JURISDICTIONAL
POLICY DRAWN FROM THE CASE AND CONTROVERSY LIMITATION.  U.S. CONST.,
ART. III.  THE SAME POLICY HAS BEEN REFLECTED CONTINUOUSLY NOT ONLY IN
DECISIONS BUT ALSO IN RULES OF COURT AND IN STATUTES MADE APPLICABLE TO
JURISDICTIONAL MATTERS, INCLUDING THE NECESSITY FOR REASONABLE CLARITY
AND DEFINITENESS, AS WELL AS FOR TIMELINESS, IN RAISING AND PRESENTING
CONSTITUTIONAL QUESTIONS.  FN30  INDEED PERHAPS THE MOST EFFECTIVE
IMPLEMENT FOR MAKING THE POLICY EFFECTIVE HAS BEEN THE CERTIORARI
JURISDICTION CONFERRED UPON THIS COURT BY CONGRESS.  E.G., JUDICIAL
CODE, SECS. 237, 240. 

THE POLICY, HOWEVER, HAS NOT BEEN LIMITED TO JURISDICTIONAL
DETERMINATIONS.  FOR, IN ADDITION, "THE COURT (HAS) DEVELOPED, FOR ITS
OWN GOVERNANCE IN THE CASES CONFESSEDLY WITHIN ITS JURISDICTION, A
SERIES OF RULES UNDER WHICH IT HAS AVOIDED PASSING UPON A LARGE PART OF
ALL THE CONSTITUTIONAL QUESTIONS PRESSED UPON IT FOR DECISION."  FN31
THUS, AS THOSE RULES WERE LISTED IN SUPPORT OF THE STATEMENT QUOTED,
CONSTITUTIONAL ISSUES AFFECTING LEGISLATION WILL NOT BE DETERMINED IN
FRIENDLY, NONADVERSARY PROCEEDINGS; IN ADVANCE OF THE NECESSITY OF
DECIDING THEM; IN BROADER TERMS THAN ARE REQUIRED BY THE PRECISE FACTS
TO WHICH THE RULING IS TO BE APPLIED; IF THE RECORD PRESENTS SOME OTHER
GROUND UPON WHICH THE CASE MAY BE DISPOSED OF; AT THE INSTANCE OF ONE
WHO FAILS TO SHOW THAT HE IS INJURED BY THE STATUTE'S OPERATION, OR WHO
HAS AVAILED HIMSELF OF ITS BENEFITS; OR IF A CONSTRUCTION OF THE
STATUTE IS FAIRLY POSSIBLE BY WHICH THE QUESTION MAY BE AVOIDED.  FN32 

SOME, IF NOT INDEED ALL, OF THESE RULES HAVE FOUND "MOST VARIED
APPLICATIONS."  FN33  AND EVERY APPLICATION HAS BEEN AN INSTANCE OF
RELUCTANCE, INDEED OF REFUSAL, TO UNDERTAKE THE MOST IMPORTANT AND THE
MOST DELICATE OF THE COURT'S FUNCTIONS, NOTWITHSTANDING CONCEDED
JURISDICTION, UNTIL NECESSITY COMPELS IT IN THE PERFORMANCE OF
CONSTITUTIONAL DUTY. 

MOREOVER THE POLICY IS NEITHER MERELY PROCEDURAL NOR IN ITS ESSENCE
DEPENDENT FOR APPLICABILITY UPON THE DIVERSITIES OF JURISDICTION AND
PROCEDURE, WHETHER OF THE STATE COURTS, THE INFERIOR FEDERAL COURTS, OR
THIS COURT.  RATHER IT IS ONE OF SUBSTANCE,  FN34  GROUNDED IN
CONSIDERATIONS WHICH TRANSCEND ALL SUCH PARTICULAR LIMITATIONS.  LIKE
THE CASE AND CONTROVERSY LIMITATION ITSELF AND THE POLICY AGAINST
ENTERTAINING POLITICAL QUESTIONS,  FN35  IT IS ONE OF THE RULES BASIC
TO THE FEDERAL SYSTEM AND THIS COURT'S APPROPRIATE PLACE WITHIN THAT
STRUCTURE.  FN36 

INDEED IN ORIGIN AND IN PRACTICAL EFFECTS, THOUGH NOT IN TECHNICAL
FUNCTION, IT IS A COROLLARY OFFSHOOT OF THE CASE AND CONTROVERSY RULE. 
AND OFTEN THE LINE BETWEEN APPLYING THE POLICY OR THE RULE IS VERY
THIN.  FN37  THEY WORK, WITHIN THEIR RESPECTIVE AND TECHNICALLY
DISTINCT AREAS, TO ACHIEVE THE SAME PRACTICAL PURPOSES FOR THE PROCESS
OF CONSTITUTIONAL ADJUDICATION, AND UPON CLOSELY RELATED
CONSIDERATIONS. 

THE POLICY'S ULTIMATE FOUNDATIONS, SOME IF NOT ALL OF WHICH ALSO
SUSTAIN THE JURISDICTIONAL LIMITATION, LIE IN ALL THAT GOES TO MAKE UP
THE UNIQUE PLACE AND CHARACTER, IN OUR SCHEME, OF JUDICIAL REVIEW OF
GOVERNMENTAL ACTION FOR CONSTITUTIONALITY.  THEY ARE FOUND IN THE
DELICACY OF THAT FUNCTION, PARTICULARLY IN VIEW OF POSSIBLE
CONSEQUENCES FOR OTHERS STEMMING ALSO FROM CONSTITUTIONAL ROOTS; THE
COMPARATIVE FINALITY OF THOSE CONSEQUENCES; THE CONSIDERATION DUE TO
THE JUDGMENT OF OTHER REPOSITORIES OF CONSTITUTIONAL POWER CONCERNING
THE SCOPE OF THEIR AUTHORITY; THE NECESSITY, IF GOVERNMENT IS TO
FUNCTION CONSTITUTIONALLY, FOR EACH TO KEEP WITHIN ITS POWER, INCLUDING
THE COURTS; THE INHERENT LIMITATIONS OF THE JUDICIAL PROCESS, ARISING
ESPECIALLY FROM ITS LARGELY NEGATIVE CHARACTER AND LIMITED RESOURCES OF
ENFORCEMENT; WITHAL IN THE PARAMOUNT IMPORTANCE OF CONSTITUTIONAL
ADJUDICATION IN OUR SYSTEM. 

ALL THESE CONSIDERATIONS AND PERHAPS OTHERS, TRANSCENDING SPECIFIC
PROCEDURES, HAVE UNITED TO FORM AND SUSTAIN THE POLICY.  ITS EXECUTION
HAS INVOLVED A CONTINUOUS CHOICE BETWEEN THE OBVIOUS ADVANTAGES IT
PRODUCES FOR THE FUNCTIONING OF GOVERNMENT IN ALL ITS COORDINATE PARTS
AND THE VERY REAL DISADVANTAGES, FOR THE ASSURANCE OF RIGHTS, WHICH
DEFERRING DECISION VERY OFTEN ENTAILS.  ON THE OTHER HAND IT IS NOT
ALTOGETHER SPECULATIVE THAT A CONTRARY POLICY, OF ACCELERATED DECISION,
MIGHT DO EQUAL OR GREATER HARM FOR THE SECURITY OF PRIVATE RIGHTS,
WITHOUT ATTAINING ANY OF THE BENEFITS OF TOLERANCE AND HARMONY FOR THE
FUNCTIONING OF THE VARIOUS AUTHORITIES IN OUR SCHEME.  FOR PREMATURE
AND RELATIVELY ABSTRACT DECISION, WHICH SUCH A POLICY WOULD BE MOST
LIKELY TO PROMOTE, HAVE THEIR PART TOO IN RENDERING RIGHTS UNCERTAIN
AND INSECURE.    AS WITH THE CASE AND CONTROVERSY LIMITATION, HOWEVER,
THE CHOICE HAS BEEN MADE LONG SINCE.  TIME AND EXPERIENCE HAVE GIVEN IT
SANCTION.  THEY ALSO HAVE VERIFIED FOR BOTH THAT THE CHOICE WAS WISELY
MADE.  ANY OTHER INDEED MIGHT HAVE PUT AN END TO OR SERIOUSLY IMPAIRED
THE DISTINCTIVELY AMERICAN INSTITUTION OF JUDICIAL REVIEW.  FN38  AND
ON THE WHOLE, IN SPITE OF INEVITABLE EXCEPTIONS, THE POLICY HAS WORKED
NOT ONLY FOR FINDING THE APPROPRIATE PLACE AND FUNCTION OF THE JUDICIAL
INSTITUTION IN OUR GOVERNMENTAL SYSTEM, BUT ALSO FOR THE PRESERVATION
OF INDIVIDUAL RIGHTS. 

MOST RECENTLY BOTH PHASES OF ITS OPERATION HAVE BEEN EXEMPLIFIED IN
DECLARATORY JUDGMENT PROCEEDINGS.  FN39  DESPITE SOME SEEMINGLY
WIDESPREAD MISCONCEPTIONS,  FN40  THE GENERAL INTRODUCTION OF THAT
PROCEDURE IN BOTH STATE AND FEDERAL SPHERES HAS NOT REVERSED OR
MODIFIED THE POLICY'S GENERAL DIRECTION OR EFFECTS.  FN41 

ONE ASPECT OF THE POLICY'S APPLICATION, IT HAS BEEN NOTED, HAS BEEN
BY VIRTUE OF THE PRESENCE OF OTHER GROUNDS FOR DECISION.  BUT WHEN SUCH
ALTERNATIVES ARE ABSENT, AS IN THIS CASE, APPLICATION MUST REST UPON
CONSIDERATIONS RELATIVE TO THE MANNER IN WHICH THE CONSTITUTIONAL ISSUE
ITSELF IS SHAPED AND PRESENTED. 

THESE CANNOT BE REDUCED TO ANY PRECISE FORMULA OR COMPLETE
CATALOGUE.  BUT IN GENERAL, AS WE HAVE SAID, THEY ARE OF THE SAME
NATURE AS THOSE WHICH MAKE THE CASE AND CONTROVERSY LIMITATION
APPLICABLE, DIFFERING ONLY IN DEGREE.  TO THE MORE USUAL CONSIDERATIONS
OF TIMELINESS AND MATURITY, OF CONCRETENESS, DEFINITENESS, CERTAINTY,
AND OF ADVERSITY OF INTERESTS AFFECTED, ARE TO BE ADDED IN CASES COMING
FROM STATE COURTS INVOLVING STATE LEGISLATION THOSE ARISING WHEN
QUESTIONS OF CONSTRUCTION, ESSENTIALLY MATTERS OF STATE LAW, REMAIN
UNRESOLVED OR HIGHLY AMBIGUOUS.  THEY INCLUDE, OF COURSE, QUESTIONS OF
INCORPORATION BY REFERENCE AND SEVERABILITY, SUCH AS THIS CASE
INVOLVES.  NECESSARILY WHETHER DECISION OF THE CONSTITUTIONAL ISSUE
WILL BE MADE MUST DEPEND UPON THE DEGREE TO WHICH UNCERTAINTY EXISTS IN
THESE RESPECTS.  AND THIS INEVITABLY WILL VARY WITH PARTICULAR CAUSES
AND THEIR VARYING PRESENTATIONS. 

ACCORDINGLY THE POLICY'S APPLICABILITY CAN BE DETERMINED ONLY BY AN
EXERCISE OF JUDGMENT RELATIVE TO THE PARTICULAR PRESENTATION, THOUGH
RELATIVE ALSO TO THE POLICY GENERALLY AND TO THE DEGREE IN WHICH THE
SPECIFIC FACTORS RENDERING IT APPLICABLE ARE EXEMPLIFIED IN THE
PARTICULAR CASE.  IT IS LARGELY A QUESTION OF ENOUGH OR NOT ENOUGH, THE
SORT OF THING PRECISIONISTS ABHOR BUT CONSTITUTIONAL ADJUDICATION
NEVERTHELESS CONSTANTLY REQUIRES.  AND IT IS THIS KIND OF QUESTION THAT
THE DECLARATORY JUDGMENTS PROCEDURE HAS FACILITATED IN PRESENTATION, A
CONSEQUENCE WHICH DICTATES THE GREATEST CARE IN SEEING THAT IT BE NOT
UTILIZED SO AS TO BECOME A MEANS FOR NULLIFYING THE POLICY. 

MUCH THE SAME THING MAY BE SAID FOR THE STATE PROCEDURE IN
PROHIBITION AS IT HAS BEEN FOLLOWED IN THIS CASE.  INDEED, IN ALL BUT
NAME THE TWO PROCEDURES ARE SUBSTANTIALLY IDENTICAL, FOR THE PURPOSES
OF OUR JURISDICTION AND FUNCTION IN REVIEW.  HERE RELIEF IS NEITHER
SOUGHT NOR NEEDED BEYOND ADJUDICATION OF THE JURISDICTIONAL ISSUE.  THE
SUIT SEEKS ONLY, IN SUBSTANCE, A JUDICIAL DECLARATION THAT JURISDICTION
DOES NOT EXIST IN THE MUNICIPAL COURT.  BUT FOR A VARIETY OF REASONS
THE SHAPE IN WHICH THE UNDERLYING CONSTITUTIONAL ISSUES HAVE REACHED
THIS COURT PRESENTS, WE THINK, INSUPERABLE OBSTACLES TO ANY EXERCISE OF
JURISDICTION TO DETERMINE THEM. 

THOSE REASONS COMPRISE NOT ONLY OBSTACLES OF PREMATURITY AND
COMPARATIVE ABSTRACTNESS ARISING FROM THE NATURE OF THE PROCEEDING IN
PROHIBITION AND THE MANNER IN WHICH THE PARTIES HAVE UTILIZED IT FOR
PRESENTING THE CONSTITUTIONAL QUESTIONS.  THEY ALSO INCLUDE RELATED
CONSIDERATIONS GROWING OUT OF UNCERTAINTIES RESULTING FROM THE VOLUME
OF LEGISLATIVE PROVISIONS POSSIBLY INVOLVED, THEIR INTRICATE
INTERLACING NOT ONLY WITH EACH OTHER ON THEIR FACE BUT ALSO IN THE
CALIFORNIA SUPREME COURT'S DISPOSITION OF THEM, AND ESPECIALLY FROM ITS
TREATMENT OF THIS CASE BY REFERENCE IN CONSIDERABLE PART TO THE GOSPEL
ARMY CASE, DIFFICULTIES ALL ACCENTUATED FOR US OF COURSE BY THE
NECESSITY FOR DISMISSAL OF THAT CAUSE HERE.  BECAUSE THE APPLICATION OF
THE POLICY MUST BE RELATIVE TO THE FACTORS SPECIFICALLY DICTATING SUCH
ACTION, A STATEMENT OF OUR PARTICULAR REASONS FOLLOWS. 

                                 IV. 

IN THE FIRST PLACE, THE CONSTITUTIONAL ISSUES COME TO US IN HIGHLY
ABSTRACT FORM.  ALTHOUGH RAISED TECHNICALLY IN THE SEPARATE PROCEEDING
IN PROHIBITION, THEY ARISE SUBSTANTIALLY AS UPON DEMURRER TO THE
CHARGES AGAINST MURDOCK IN THE CRIMINAL PROCEEDING.  THE RECORD
PRESENTS ONLY BARE ALLEGATIONS THAT HE WAS CHARGED CRIMINALLY WITH
VIOLATING SECS. 44.09(A), 44.09(B) AND 44.12, AND THAT THOSE SECTIONS
ARE UNCONSTITUTIONAL, ON VARIOUS ASSIGNMENTS, AS APPLIED TO HIS ALLEGED
SOLICITATIONS.  WE ARE THEREFORE WITHOUT BENEFIT OF THE PRECISION WHICH
WOULD BE AFFORDED BY PROOF OF CONDUCT MADE UPON TRIAL.  MOREOVER, WE DO
NOT HAVE THE BENEFIT ON THIS RECORD OF EVEN THE LITERAL TEXT OF THE
CHARGES.  FN42  INDEED, THE SUMMARIZED STATEMENT OF THE PLEADINGS
LEAVES US IN DOUBT WHETHER THERE WERE ONLY TWO OR, ON THE OTHER HAND,
THREE DISTINCT OFFENSES CHARGED.  FN43 

THE PLEADINGS SEEM TO ALLEGE THAT MURDOCK WAS CHARGED WITH VIOLATION
OF THREE DIFFERENT PROVISIONS OF ARTICLE 4, NAMELY, SECS. 44.09(A),
44.09(B) AND 44.12.  YET THEY ALLEGE EQUALLY CLEARLY THAT THERE WERE
ONLY TWO COUNTS.  THE SECOND RESTED, AS WE HAVE SAID, ON SEC. 44.12. 
BUT FROM THE STATE OF THE PLEADINGS WE CANNOT BE SURE WHETHER THE FIRST
WAS GROUNDED ON SEC. 44.09(A), ON SEC. 44.09(B), OR ON BOTH AND, IF THE
LATTER, WHETHER CONJUNCTIVELY OR ALTERNATIVELY. 

THE CALIFORNIA SUPREME COURT'S DECISION PURPORTED TO DEAL WITH BOTH. 
BUT THE OPINION DID NOT DISCUSS THE ANOMALY OF INCLUDING TWO DISTINCT
CHARGES IN A SINGLE COUNT.  NOR DID IT DECIDE WHETHER THAT COUNT WAS
INTENDED TO CHARGE TWO SUCH OFFENSES INDEPENDENTLY, ONE UNDER EACH
SUBDIVISION, OR ONLY COMMISSION OF THOSE OFFENSES ALTERNATIVELY, THAT
IS, EITHER AN OFFENSE UNDER SEC. 44.09(A) OR ONE UNDER SEC. 44.09(B) IN
ORDER, POSSIBLY, TO ANTICIPATE CONTINGENCIES OF PROOF. 

WE MIGHT ASSUME EITHER ONE CONSTRUCTION OR THE OTHER, OF COURSE, AND
MAKE OUR DISPOSITION ACCORDINGLY.  PERHAPS THE MORE TENABLE ASSUMPTION
WOULD BE THAT MURDOCK WAS CHARGED CONJUNCTIVELY UNDER BOTH
SUBDIVISIONS, RATHER THAN THAT HE WAS CONFRONTED WITH AN ALTERNATIVE
ALLEGATION.  BUT THE DOUBT RAISED CONCERNING THIS, BY CONJUNCTION OF
THE CHARGES IN A SINGLE COUNT, IS SUBSTANTIAL; THE MATTER IS, FOR
PRESENT PURPOSES, ENTIRELY ONE OF STATE PROCEDURE AND STATE LAW; AND
THEREFORE IS ONE FOR THE STATE COURT OF LAST RESORT TO RESOLVE.  IN
THESE CIRCUMSTANCES WE ARE UNWILLING TO UNDERTAKE CLARIFYING THE
AMBIGUITY.  TO DO SO WOULD BE DIRECTLY CONTRARY TO THE POLICY OF
AVOIDING CONSTITUTIONAL DECISIONS UNTIL THE ISSUES ARE PRESENTED WITH
CLARITY, PRECISION AND CERTAINTY. 

THE TWO SUBDIVISIONS, WHILE COMPLEMENTARY IN REGULATING SOLICITATION
BY RECEPTACLES, ARE ENTIRELY DISTINCT NOT ONLY IN THE PLACES WHERE THE
REGULATIONS APPLY, BUT ALSO IN THE CONDITIONS PRESCRIBED TO BE
FULFILLED BEFORE LAWFUL SOLICITATION MAY TAKE PLACE.  THOSE DIFFERENCES
ARE SUBSTANTIAL, NOT MERELY NOMINAL OR TECHNICAL.  FN44  WITH THE
POSSIBILITY PRESENTED BY THE RECORD THAT ONLY ONE OR THE OTHER
PROVISION MAY BE INVOLVED IN THE FINAL DISPOSITION OF THE CRIMINAL
PROCEEDING, AS A MATTER OF PLEADING AND PROOF AND NOT SIMPLY OF THE
JURY'S ACTION, IT IS ENTIRELY TOO SPECULATIVE WHETHER ONE SORT OF
REGULATION OR THE OTHER ACTUALLY WILL BE UTILIZED TO SECURE MURDOCK'S
CONVICTION FOR US TO EXPRESS OPINION AT THIS STAGE ON THE
CONSTITUTIONALITY OF EITHER.  FOR THE SAME REASON WE ARE UNWILLING TO
DETERMINE THE VALIDITY OF BOTH, NOTWITHSTANDING THE CALIFORNIA COURT
HAS HELD EACH VALID.  THAT DECISION ON OUR PART, CONSISTENTLY WITH THE
POLICY, SHOULD AWAIT THE DETERMINATION WHICH NECESSARILY WILL BE MADE
IN THE FURTHER PROCEEDINGS IN THE MUNICIPAL COURT, WHETHER MURDOCK HAS
BEEN CHARGED INDEPENDENTLY OR ALTERNATIVELY UNDER THE TWO SUBSECTIONS
IN THE FIRST COUNT. 

OTHER REASONS RELATING PARTICULARLY TO SEC. 44.09(B) SUSTAIN THIS
CONCLUSION.  IN THE FIRST PLACE, THE CALIFORNIA COURT'S OPINIONS GIVE
US NO GUIDE CONCERNING THE EFFECT OF THAT SECTION'S CONCLUDING OMNIBUS
CLAUSE, REQUIRING COMPLIANCE "IN ALL OTHER RESPECTS  ...  WITH THE
PROVISIONS OF THIS ARTICLE."  WHETHER OR NOT THAT COURT, TREATING THE
TO INCORPORATE ALL OR ONLY SOME OF THE MANY PROVISIONS OF ARTICLE 4,
AND IN THE LATTER EVENT HOW MANY, ARE MATTERS UPON WHICH WE ARE
ALTOGETHER WITHOUT LIGHT.  AND THOSE QUESTIONS, BEING MATTERS OF STATE
LAW, ARE ESSENTIALLY FOR THE STATE COURT'S DETERMINATION, NOT OURS. 

MOREOVER THEY ARE SUBSTANTIAL.  AS WE HAVE SHOWN, THE REQUIREMENTS OF
ARTICLE 4 CONCERNING LAWFUL SOLICITATION ARE MANY AND VARIED. 
PRESUMABLY, THOUGH BY NO MEANS CERTAINLY, THE SPECIAL ONES OF SEC.
44.19, RELATING TO PROMOTERS AND REGISTERED SOLICITORS, WOULD NOT
BECOME APPLICABLE UNDER A GENERAL CHARGE MADE PURSUANT TO SEC.
44.09(B).  BUT A LITERAL APPLICATION OF THE CONCLUDING LANGUAGE OF SEC.
44.09(B) WOULD MAKE THEM SO, UPON PROOF OF VIOLATION.  AND, IN THAT
EVENT, MURDOCK CONCEIVABLY COULD BE CONVICTED UPON PROOF OF HIS FAILURE
TO PAY THE SUBSTANTIAL LICENSE FEES, GIVE THE BONDS, OR OTHERWISE
COMPLY WITH THE MORE BURDENSOME PROVISIONS OF SEC. 44.19, EVEN THOUGH
HE HAD FULFILLED THE EXPLICIT COMMAND OF SEC. 44.09(B) FOR FILING THE
NOTICE OF INTENTION AS REQUIRED BY SEC. 44.05 AND, INDEED, ALL OTHER
REQUIREMENTS OF ARTICLE 4 OUTSIDE SEC. 44.19. 

WHETHER THE CHARGE UNDER SEC. 44.09(B) COMPREHENDS FAILURE TO COMPLY
WITH ALL OF THE CONDITIONS OF ARTICLE 4 OR ONLY SOME OF THEM, AND IF
THE LATTER WHICH ONES, DEPENDS ON WHETHER THE OMNIBUS CLAUSE IS TO BE
LITERALLY APPLIED, DISREGARDED ENTIRELY,  FN46  OR POSSIBLY CONSTRUED
IN SOME MODIFIED WAY INVOLVING NEITHER OF THESE EXTREMES.  THIS COURT
CERTAINLY HAS NO PROPER FUNCTION TO UNDERTAKE SUCH A TASK OF
INTERPRETATION.  APART FROM INVADING THE STATE COURT'S FUNCTION, THE
PROBLEM OF EXTRICATING THE APPLICABLE PROVISIONS FROM SUCH A MASS,
TOGETHER WITH MATTERS OF SEVER-ABILITY LIKELY TO ARISE, WOULD BE
FORMIDABLE.  AND WHEN DISCHARGED THE RESULT MIGHT BE MERELY THAT WE HAD
PERFORMED IT AND DETERMINED THE CONSTITUTIONAL ISSUES SO PRESENTED,
ONLY TO FIND THAT IN THE FURTHER PROCEEDINGS TO BE HAD IN THE MUNICIPAL
COURT OUR INTERPRETATION HAD BEEN PUT ASIDE IN FAVOR OF ANOTHER. 

MOREOVER THAT CAUSE HARDLY CAN PROCEED TO FINAL DECISION WITHOUT
CLARIFICATION OF THE CHARGE, OR MAKING CLARIFICATION UNNECESSARY. 
MURDOCK'S RIGHTS THUS CAN BE ASSURED OF PROTECTION, EVEN THOUGH AT THE
TROUBLE AND EXPENSE OF UNDERGOING ANOTHER TRIAL.  THOSE INCONVENIENCES,
CONCEDEDLY SUBSTANTIAL, DO NOT OUTWEIGH THE STRONG CONSIDERATIONS
RELATIVE TO THIS COURT'S FUNCTIONS DICTATING THAT IT SHOULD NOT
UNDERTAKE A TASK AT ONCE SO SPECULATIVE AND SO FOREIGN TO THEM. 

SOMEWHAT LESS OBVIOUSLY, SIMILAR DIFFICULTIES ARE PRESENTED FOR
DEALING WITH THE MORE SPECIFIC REQUIREMENT OF SEC. 44.09(B) FOR FILING
THE NOTICE OF INTENTION AND THE RELATED ONE OF SEC. 44.12 FOR PROCURING
AND EXHIBITING THE INFORMATION CARD.  FN47  SIMPLY UPON THE FACE OF THE
ORDINANCE (ARTICLE 4), WE WOULD CONSTRUE THESE PROVISIONS AS EXCLUDING
ALL REFERENCE TO THE LICENSING REQUIREMENTS OF SEC. 44.19, AS WELL AS
THE REGULATIONS RELATING TO DEALERS IN USED ARTICLES, JUNK, ETC.,  FN48
AS INDEED THE CALIFORNIA SUPREME COURT'S OPINION SEEMS TO EXCLUDE
THEM.  IN SUCH A VIEW THE CHARGES UNDER SEC. 44.09(B)(WITHOUT REFERENCE
TO THE OMNIBUS CONCLUDING CLAUSE) AND SEC. 44.12 WOULD BE RESTRICTED TO
FAILURE TO COMPLY WITH WHATEVER PROVISIONS OF SECS. 44.01-44.18 MAY BE
INCORPORATED BY REFERENCE IN THOSE TWO SECTIONS.  PRESUMABLY ALSO,
WITHIN THAT RANGE, WOULD BE EXCLUDED ALL REQUIREMENTS APPLICABLE ONLY
AFTER THE ACT OF SOLICITATION, SUCH AS THOSE FOR KEEPING RECORDS AND
MAKING REPORTS OF THE RECEIPT AND DISPOSITION OF CONTRIBUTIONS
RECEIVED, SECS. 44.09, 44.14, CF. ALSO SEC. 44.08, AND PERHAPS THOUGH
NOT AT ALL CERTAINLY (AS TO THE CHARGE UNDER SEC. 44.12)  FN49  THE
TENDERING AT THE TIME OF SOLICITATION OF THE RECEIPT REQUIRED BY SEC.
44.15.  POSSIBLY THEREFORE A FAIR CONSTRUCTION OF THE CHARGES UNDER
SECS. 44.09(B) AND 44.12 WOULD BE THAT THEY ARE LIMITED, SO FAR AS
CONCERNS INCORPORATION OF OTHER PROVISIONS, TO INCLUDING THE LICENSING
REQUIREMENTS OF SECS. 44.05 AND 44.03, THEMSELVES EXTENSIVE AND HIGHLY
DETAILED, WHICH SO FAR AS WE CAN GATHER FROM THE CALIFORNIA COURT'S
TREATMENT OF THEM, WAS THE EFFECT OF ITS DECISION. 

APART, HOWEVER, FROM THE DIFFICULTIES CREATED BY THE NECESSITY OF
ADDING CONSTRUCTION OF THE CALIFORNIA COURT'S OPINIONS TO CONSTRUCTION
OF SO MANY POSSIBLY APPLICABLE PROVISIONS OF THE ORDINANCE, OTHER
PROBLEMS HAVE ARISEN FROM ITS DISPOSITION.  IN PARTICULAR, ITS OPINIONS
DO NOT ENLIGHTEN US CONCERNING THE CHARACTER AND EFFECTS OF THE
LICENSING REQUIREMENTS SPECIFIED IN SECS. 44.05 AND 44.03.  WITH
REFERENCE TO THEM IT SAID IN ITS GOSPEL ARMY OPINION: 

"THE INFORMATION CARDS, WHICH ARE IN EFFECT PERMITS TO SOLICIT, ARE
ISSUED AUTOMATICALLY UPON THE FILING OF THE REQUIRED INFORMATION AND
THE PAYMENT OF THE FOUR CENTS FOR EACH CARD.  THE DEPARTMENT IS GIVEN
NO AUTHORITY TO WITHHOLD SUCH CARDS WHEN THESE REQUIREMENTS ARE MET,
AND WE CANNOT ASSUME THAT IT WILL ABUSE ITS AUTHORITY IN ORDER TO
WITHHOLD THEM.  ...  'IF THIS PETITIONER HAD APPLIED FOR A PERMIT UNDER
THE REQUIREMENT (OF SEC. 44.05),  ...  AND BEEN EITHER WHIMSICALLY OR
ARBITRARILY REFUSED SUCH PERMIT, HE MIGHT THEN  ...  HAVE HAD RECOURSE
TO THE COURTS FOR RELIEF FROM SUCH UNJUST AND ARBITRARY ACTION.'"  27
CAL.2D AT 238-239.    SO CONSTRUING THE LICENSING PROVISIONS AND
ASSERTING THAT THEY ARE "DESIGNED PRIMARILY TO SECURE INFORMATION THAT
WILL ASSIST THE PUBLIC IN JUDGING THE NATURE AND WORTHINESS OF THE
CAUSE  ... AND TO INSURE THE PRESENTATION OF SUCH INFORMATION TO
PROSPECTIVE DONORS," THE CALIFORNIA COURT CONCLUDED:  "WE FIND NOTHING
UNDULY BURDENSOME OR UNREASONABLE IN ANY OF THESE PROVISIONS."  27
CAL.2D AT 237. 

NEVERTHELESS, THE CONSTRUCTION GIVEN IS, TO SAY THE LEAST,
AMBIGUOUS.  FOR, DESPITE THE LANGUAGE INDICATING THAT THE CARDS ARE TO
BE ISSUED "AUTOMATICALLY UPON THE FILING OF THE REQUIRED INFORMATION
AND THE PAYMENT OF THE FOUR CENTS FOR EACH CARD," THE OPINION EXPRESSLY
ASSERTED THAT THE DEPARTMENT "MAY INVESTIGATE THE STATEMENTS IN THE
NOTICE OF INTENTION."  27 CAL.2D AT 239.  AND AT ANOTHER POINT IT SAID:
"THE BOARD MAY NOT DISALLOW A PROPOSED SOLICITATION BUT IT MAY
INVESTIGATE THE STATEMENTS IN THE NOTICE OF INTENTION AND THE METHODS
OF MAKING OR CONDUCTING THE SOLICITATION; IT MAY INSPECT THE RECORDS OF
THE PERSON IN CHARGE OF THE SOLICITATION AND THE ASSOCIATION FOR WHOM
IT IS MADE, AND IT MAY GIVE SUCH PUBLICITY TO ITS FINDINGS AS IT DEEMS
BEST TO REACH THE GENERAL PUBLIC AND PERSONS INTERESTED."  FN50  IBID. 

THESE QUALIFICATIONS MAKE IT HIGHLY QUESTIONABLE THAT THE COURT, BY
USING "AUTOMATICALLY" IN THE QUOTED CONTEXT, MEANT TO RULE THAT ON THE
MERE FILING OF THE REQUIRED INFORMATION, WITHOUT MORE, SOLICITATION
WOULD BECOME LAWFUL UNDER SEC. 44.09(B) OR THAT THE INFORMATION CARDS
WOULD ISSUE SO AS TO MAKE SOLICITATION LEGAL UNDER SEC. 44.12.  RATHER,
THE INTENDED HOLDING WOULD SEEM TO HAVE BEEN THAT, UPON FULL COMPLIANCE
WITH THE NUMEROUS CONDITIONS SPECIFIED FOR ISSUANCE OF THE CARD, THE
BOARD WOULD BE WITHOUT AUTHORITY "EITHER WHIMSICALLY OR ARBITRARILY" TO
WITHHOLD IT FROM THE APPLICANT; BUT HIS FAILURE IN ANY SUBSTANTIAL
RESPECT TO MEET THOSE CONDITIONS, INCLUDING PERHAPS WAITING FOR THE TEN
DAY PERIOD AND THE OUT-COME OF THE AUTHORIZED INVESTIGATIONS, WOULD BE
GOOD AND SUFFICIENT CAUSE FOR THE BOARD TO EXERCISE ITS DISCRETION TO
REFUSE THE CARD AND FOR PROSECUTION IF HE SHOULD UNDERTAKE TO SOLICIT
WITHOUT IT. 

THAT THIS PROBABLY WAS THE COURT'S INTENDED CONSTRUCTION APPEARS NOT
ONLY FROM ITS APPARENT UNWILLINGNESS TO DISPENSE WITH THE NECESSITY FOR
MEETING ANY OF THE CONDITIONS SPECIFIED IN THE ORDINANCE, BUT ALSO FROM
THE MANNER IN WHICH IT DISPOSED OF THE PROVISIONS RELATING TO PROMOTERS
AND TO SOLICITORS REQUIRED TO BE REGISTERED UNDER SEC. 44.19.  IN THIS
CONNECTION IT SAID, ALSO IN THE GOSPEL ARMY OPINION: 

"THE BOARD HAS NO DISCRETION TO WITHHOLD A LICENSE IF THE APPLICANT'S
GOOD CHARACTER AND REPUTATION AND HIS FINANCIAL RESPONSIBILITY ARE
ESTABLISHED AND THE REQUIRED BOND IS FILED.  THE BOARD IS NOT FREE TO
DENY LICENSES, BUT MUST ACT REASONABLY IN THE LIGHT OF THE EVIDENCE
PRESENTED."  27 CAL.2D AT 249.  FN51 

THERE IS, OF COURSE, A VERY SUBSTANTIAL DIFFERENCE BETWEEN THE TWO
POSSIBLE VIEWS OF THE COURT'S CONSTRUCTION OF THE ORDINANCES, FOR
CONSTITUTIONAL AS WELL AS OTHER PURPOSES.  FOR IN THE ONE CONCEPTION
THE PROVISIONS WOULD BE MORE NEARLY AKIN TO A "MERE IDENTIFICATION"
REQUIREMENT SUCH AS THE FIRST AMENDMENT HAS BEEN SAID NOT TO FORBID; IN
THE OTHER, THEY WOULD COMPREHEND A MUCH BROADER EXERCISE OF
ADMINISTRATIVE DISCRETION THAN SIMPLY RECEIVING AND FILING IDENTIFYING
INFORMATION.  FN52  OBVIOUSLY IT WOULD BE ONE THING TO SUSTAIN THE
LICENSING PROVISIONS IF THEY ARE TO BE TAKEN AS OF THE "AUTOMATIC MERE
IDENTIFICATION" TYPE, AND QUITE ANOTHER IF THEY INVOLVE THE VERY
CONSIDERABLE DEGREE OF DISCRETION UPON THE PART OF ADMINISTRATIVE
OFFICIALS WHICH THE CLEARLY APPLICABLE PROVISIONS OF THE ORDINANCE SEEM
TO REQUIRE BY THEIR TERMS AND INDEED BY THE STATE COURT'S RULING. 

BUT WE EXPRESS NO OPINION CONCERNING THEIR VALIDITY IN EITHER
CONCEPTION.  FOR WE DO NOT UNDERTAKE TO RESOLVE THE DOUBT WHICH
NECESSARILY EXISTS CONCERNING THE COURT'S MEANING, WHETHER WITH
REFERENCE TO SEC. 44.09(B) OR SEC. 44.12.  ON THE CONTRARY THAT DOUBT
ONLY ADDS TO THE REASONS WE HAVE STATED, THE SUM OF WHICH IN THIS CASE
GOES TO PRECLUDE THE EXERCISE OF JURISDICTION.  THAT DOUBT ALSO SHOULD
BE RESOLVED, WITH THE OTHER UNCERTAINTIES IN THIS CAUSE, BEFORE THIS
COURT UNDERTAKES TO PRONOUNCE JUDGMENT ON THE CONSTITUTIONAL
QUESTIONS.  THEY MAY BE REMOVED IN THE MUNICIPAL COURT PROCEEDINGS YET
TO TAKE PLACE. 

WE ARE NOT UNMINDFUL THAT OUR RULING WILL SUBJECT THE PETITIONER
MURDOCK TO THE BURDEN OF UNDERGOING A THIRD TRIAL OR THAT THIS BURDEN
IS SUBSTANTIAL.  FN53  WERE THE UNCERTAINTIES CONFRONTING US IN
RELATION TO THIS COURT'S HISTORIC POLICY LESS IN NUMBER, AND RESOLVING
THEM NOT SO FAR FROM OUR APPROPRIATE FUNCTION IN CASES COMING FROM
STATE COURTS, THE INCONVENIENCE OF UNDERGOING TRIAL ANOTHER TIME MIGHT
JUSTIFY EXERCISING JURISDICTION IN THIS CAUSE.  BUT, CONSISTENTLY WITH
THE POLICY, JURISDICTION HERE SHOULD BE EXERTED ONLY WHEN THE
JURISDICTIONAL QUESTION PRESENTED BY THE PROCEEDING IN PROHIBITION
TENDERS THE UNDERLYING CONSTITUTIONAL ISSUES IN CLEAN-CUT AND CONCRETE
FORM, UNCLOUDED BY ANY SERIOUS PROBLEM OF CONSTRUCTION RELATING EITHER
TO THE TERMS OF THE QUESTIONED LEGISLATION OR TO ITS INTERPRETATION BY
THE STATE COURTS. 

OUR DECISION OF COURSE SHOULD BE WITHOUT PREJUDICE TO ANY RIGHTS
WHICH MAY ARISE UPON FINAL DETERMINATION OF THE MUNICIPAL COURT
PROCEEDING, RELATIVE TO REVIEW IN THIS COURT OF THAT DETERMINATION. 
WITH THAT RESERVATION WE THINK THE ONLY COURSE CONSISTENT, UPON THIS
RECORD, AT ONCE WITH PRESERVATION OF APPELLANTS' RIGHTS AND WITH
ADHERENCE TO OUR LONG-OBSERVED POLICY, IS TO DECLINE TO EXERCISE
JURISDICTION IN THIS CAUSE. 

ACCORDINGLY, THE APPEAL IS DISMISSED, WITHOUT PREJUDICE TO THE
DETERMINATION IN THE FUTURE OF ANY ISSUES ARISING UNDER THE FEDERAL
CONSTITUTION FROM FURTHER PROCEEDINGS IN THE MUNICIPAL COURT. 

FN1  THE GROUNDS FOR REVERSAL IN EACH INSTANCE WERE SUCH AS DID NOT
DETERMINE THE CAUSE FINALLY, BUT RESULTED IN REMANDING IT FOR FURTHER
TRIAL.  THE FIRST REVERSAL WAS FOR RECEPTION OF INCOMPETENT EVIDENCE;
THE SECOND, FOR INSUFFICIENCY OF THE EVIDENCE TO PROVE VIOLATIONS OF
THE ORDINANCES IN QUESTION. 

FN2  APPELLANTS REFER TO THE CODE AS ORDINANCE NO. 77,000.  ACCORDING
TO APPELLEE'S BRIEF, ORDINANCE NO. 77,000 CONSISTS OF A "REVISION AND
CODIFICATION OF THE REGULATORY AND PENAL ORDINANCES OF THE CITY OF LOS
ANGELES, TO BE KNOWN AS THE LOS ANGELES MUNICIPAL CODE," AND CONTAINS
NINE CHAPTERS, I-IX, SUBDIVIDED INTO ARTICLES, DIVISIONS AND SECTIONS,
THE LATTER NUMBERING IN EXCESS OF 2000. 

THE BRIEF FURTHER STATES:  "THE PORTION OF THE LOS ANGELES MUNICIPAL
CODE INVOLVED IN THIS PROCEEDING IS ARTICLE 4(CHARITIES AND RELIEF) IN
CHAPTER IV (PUBLIC WELFARE) AND CONSISTS OF NINETEEN SECTIONS NUMBERED
44.01 TO 44.19, INCLUSIVE.  HOWEVER, NOT ALL OR ANY CONSIDERABLE NUMBER
OF SUCH SECTIONS ARE ACTUALLY INVOLVED HEREIN, ALTHOUGH A COMPLETE
TREATMENT OF THE SECTIONS PRIMARILY INVOLVED MAY REQUIRE SOME MENTION
...  OF MOST IF NOT ALL OF THE OTHER SECTIONS."  APPELLANTS' VIEW,
HOWEVER, IS THAT SUBSTANTIALLY ALL OF THE PROVISIONS OF SECS. 44.01 TO
44.19 ARE INCORPORATED BY REFERENCE INTO SECS. 44.09 AND 44.12 FOR
PURPOSES OF DETERMINING THEIR CONSTITUTIONAL VALIDITY. 

FN3  IT IS NOT CLEAR WHETHER THE CHARGES UNDER SECS. 44.09(A) AND (B)
WERE MADE IN THE ALTERNATIVE OR CONJUNCTIVELY.  SEE TEXT INFRA, PART
IV, FOLLOWING NOTE 43; SEE ALSO NOTE 42. 

FN4  THE ARTICLE IS ARTICLE 4 OF CHAPTER IV.  SEE NOTE 2. 

FN5  SECTION 44.09.  "(A)  NO PERSON SHALL SOLICIT ANY CONTRIBUTION
FOR ANY PURPOSE BY MEANS OF ANY BOX OR RECEPTACLE, UPON ANY PUBLIC
STREET, SIDEWALK OR WAY, OR IN ANY PUBLIC PARK OR IN ANY PUBLICLY OWNED
OR CONTROLLED PLACE, EXCEPT BY THE EXPRESS WRITTEN PERMISSION OF THE
BOARD. 

"(B)  NO PERSON SHALL SOLICIT ANY CHARITABLE CONTRIBUTION, OR ANY
CONTRIBUTION FOR ANY REAL OR PURPORTED CHARITABLE PURPOSE, BY MEANS OF
ANY BOX OR RECEPTACLE IN ANY PLACE IMMEDIATELY ABUTTING UPON ANY PUBLIC
SIDEWALK OR WAY, OR IN ANY PLACE OF BUSINESS OPEN TO THE PUBLIC, OR IN
ANY ROOM, HALLWAY, CORRIDOR, LOBBY OR ENTRANCEWAY, OR OTHER PLACE OPEN
TO OR ACCESSIBLE TO THE PUBLIC, OR IN ANY PLACE OF PUBLIC RESORT,
WITHOUT FIRST FILING WITH THE DEPARTMENT A 'NOTICE OF INTENTION' AS
REQUIRED BY SEC. 44.05, AND EVERY PERSON SO SOLICITING MUST IN ALL
OTHER RESPECTS COMPLY WITH THE PROVISIONS OF THIS ARTICLE." 

FN6  THE CALIFORNIA SUPREME COURT SAID AT THE END OF ITS OPINION, IN
RELATION TO APPELLANTS' CONTENTION THAT THE ORDINANCES ARE BEING
UNCONSTITUTIONALLY APPLIED TO THEM:  "THE ALLEGATIONS RELIED UPON IN
SUPPORT OF THIS CONTENTION, HOWEVER, ARE DENIED BY THE ANSWER AND THE
ISSUES OF FACT THUS PRESENTED WILL NOT BE DETERMINED BY US IN THIS
PROCEEDING."  28 CAL.2D 460, 473.  SEE BANDINI CO. V. SUPERIOR COURT,
284 U.S. 8, 14; CF. NOTE 26 INFRA. 

FN7  THESE OPERATIONS WERE PERFORMED THROUGH THE GOSPEL ARMY'S SO
CALLED INDUSTRIAL DEPARTMENT.  FOR DETAILS SEE THE CALIFORNIA SUPREME
COURT'S OPINION, 27 CAL.2D 232. 

FN8  NO CHARGES IN THE MUNICIPAL COURT PURPORTED EXPRESSLY TO BE
GROUNDED UPON THE PROVISIONS OF THE ORDINANCE DEALING WITH PAWN
BROKERS, SECONDHAND DEALERS AND JUNK DEALERS; AND SECS. 44.09(A), (B)
AND 44.12 DO NOT RELATE EXPLICITLY OR, IT WOULD SEEM, BY NECESSARY
IMPLICATION, UPON THEIR FACE, TO SUCH ACTIVITIES. 

FN9  NOT ONLY ARE SECS. 44.09(A), (B) AND 44.12 LOCATED WITHIN THAT
ARTICLE BUT OTHER PROVISIONS OF THE ORDINANCE WHICH THEY EXPRESSLY
PURPORT TO INCORPORATE ARE SO PLACED. 

FN10  SEE NOTES 13, 16, AND TEXT INFRA. 

FN11  SECTION 44.01 DEFINES "CHARITABLE" TO "INCLUDE THE WORDS
PHILANTHROPIC, SOCIAL SERVICE, BENEVOLENT, PATRIOTIC, EITHER ACTUAL OR
PURPORTED."  "CONTRIBUTION" IS DEFINED TO "INCLUDE THE WORDS ALMS,
FOOD, CLOTHING, MONEY, PROPERTY OR DONATIONS UNDER THE GUISE OF A LOAN
OF MONEY OR PROPERTY."  "SOLICITATION" IS BROADLY DEFINED TO INCLUDE
ORAL OR WRITTEN REQUESTS, AND REQUESTS MADE BY DISTRIBUTING, MAILING OR
PUBLISHING "ANY HANDBILL," BY PRESS ANNOUNCEMENT, RADIO, TELEPHONE
CONCERNING SPECIFIED TYPES OF EVENTS, THE OFFERING TO SELL OR SELLING
ANY ADVERTISING, BOOK, CARD, CHANCE, ETC., IN CONNECTION WITH
CHARITABLE APPEALS. 

FN12  "(A)  THE PURPOSE OF THE SOLICITATION AND USE OF THE
CONTRIBUTION TO BE SOLICITED; 

"(B)  A SPECIFIC STATEMENT, SUPPORTED BY REASONS AND, IF AVAILABLE,
FIGURES, SHOWING THE NEED FOR THE CONTRIBUTION PROPOSED TO BE
SOLICITED; 

"(C)  THE CHARACTER OF SUCH SOLICITATION AND HOW IT WILL BE MADE OR
CONDUCTED; 

"(D)  THE EXPENSES OF THE SOLICITATION, INCLUDING SALARIES AND OTHER
ITEMS, IF ANY, REGARDLESS OF FROM WHAT FUNDS SUCH EXPENSES ARE
PAYABLE; 

"(E)  WHAT PORTION OF THE CONTRIBUTIONS COLLECTED AS A RESULT OF THE
SOLICITATION WILL REMAIN AVAILABLE FOR APPLICATION TO THE SPECIFIC
PURPOSES DECLARED IN THE NOTICE OF INTENTION AS THE OBJECT OF THE
SOLICITATION; 

"(F) A SPECIFIC STATEMENT OF ALL CONTRIBUTIOUS  COLLECTED OR RECEIVED
BY SUCH PERSON OR ASSOCIATION WITHIN THE CALENDAR YEAR IMMEDIATELY
PRECEDING THE FILING OF SUCH NOTICE OF INTENTION.  THE EXPENDITURES OR
USE MADE OF SUCH CONTRIBUTIONS, TOGETHER WITH THE NAMES AND ADDRESSES
OF ALL PERSONS OR ASSOCIATIONS RECEIVING SALARIES, WAGES, COMPENSATION,
COMMISSIONS OR EMOLUMENTS FROM SUCH CONTRIBUTIONS, AND THE RESPECTIVE
AMOUNTS THEREOF; 

"(G)  THE NAMES AND ADDRESSES OF THE OFFICERS AND DIRECTORS OF ANY
SUCH ASSOCIATION FOR WHICH THE SOLICITATION IS PROPOSED TO BE MADE; 

"(H)  A COPY OF THE RESOLUTION, IF ANY, OF ANY SUCH ASSOCIATION
AUTHORIZING SUCH SOLICITATION, CERTIFIED TO AS A TRUE AND CORRECT COPY
OF THE ORIGINAL OF SUCH RESOLUTION BY THE OFFICER OF SUCH ASSOCIATION
HAVING CHARGE OF THE RECORDS THEREOF; 

"(I)  A STATEMENT THAT THE SIGNERS OF SUCH NOTICE HAVE READ AND ARE
FAMILIAR WITH THE PROVISIONS OF THIS ARTICLE AND WILL REQUIRE ALL
SOLICITORS ENGAGED IN SUCH SOLICITATION TO READ AND BE FAMILIAR WITH
ALL SECTIONS OF THIS ARTICLE PRIOR TO MAKING ANY SUCH SOLICITATION." 
SEC. 44.05. 

FN13  THE DEPARTMENT'S POWERS ARE SPECIFIED IN SEC. 44.03 AS
FOLLOWS: 

"(A)  TO INVESTIGATE THE ALLEGATIONS OF NOTICE OF INTENTION, OR ANY
STATEMENT OR REPORTS; 

"(B)  TO HAVE ACCESS TO AND INSPECT AND MAKE COPIES OF ALL BOOKS,
RECORDS AND PAPERS OF SUCH PERSON, BY OR ON WHOSE BEHALF ANY
SOLICITATION IS MADE; 

"(C)  TO INVESTIGATE AT ANY TIME THE METHODS OF MAKING OR CONDUCTING
DUCTING ANY SUCH SOLICITATION; 

"(D)  TO ISSUE TO ALL SOLICITORS INFORMATION CARDS WHICH CARDS SHALL
SHOW" THE MATTERS SET FORTH BELOW IN NOTE 14. 

FN14  "(1)  THAT SAME IS ISSUED AS INFORMATION FOR THE PUBLIC AND IS
NOT AN ENDORSEMENT; 

"(2)  THE BOARD MAY, PURSUANT TO ORDINANCE NO. 34982, OMIT ABOVE
PROVISION AND STATE THAT THEY ENDORSE SUCH CHARITABLE ASSOCIATION; 

"(3) THE PERTINENT FACTS SET FORTH IN NOTICE OF INTENTION REQUIRED
UNDER SECTION 44.05 OF THIS ARTICLE; (SEE NOTE 12 SUPRA.) 

"(4)  ANY ADDITIONAL INFORMATION OBTAINED AS SHALL IN THE OPINION OF
THE BOARD BE OF ASSISTANCE TO THE PUBLIC TO DETERMINE THE NATURE AND
WORTHINESS OF THE PURPOSE FOR WHICH THE SOLICITATION IS MADE." 

FN15  SEE NOTE 13. 

FN16  THE BOARD'S POWER TO ENDORSE CHARITABLE ASSOCIATIONS IS
CONFERRED BY SEC. 44.02.  THE POWERS GIVEN BY SEC. 44.02 ARE AS
FOLLOWS, EXCEPT FOR SUBSECTION (E) WHICH FOR BREVITY IS SUMMARIZED: 
"(A)  TO PUBLISH RESULTS OF ANY INVESTIGATION PROVIDED FOR OR
AUTHORIZED IN SECTION 44.03 SUBDIVISIONS (A), (B) AND (C) OF THIS
ARTICLE; 

"(B)  TO GIVE SUCH PUBLICITY TO ANY SUCH RESULTS BY SUCH MEANS AS MAY
BE DEEMED BEST TO REACH THE GENERAL PUBLIC AND PERSONS INTERESTED; 

"(C)  TO WAIVE THE WHOLE OR PART OF ANY PROVISIONS OF SECTIONS 44.03,
44.05, 44.06, 44.10, 44.11, 44.12, 44.13, 44.15, AND 44.02 EXCEPTING
THIS SUBSECTION, OF THIS ARTICLE FOR THE PURPOSE OF MEETING ANY
EXTRAORDINARY EMERGENCY OR CALAMITY;    "(D)  TO REQUEST RETURN OF
INFORMATION CARDS TO THE DEPARTMENT UPON COMPLETION OF SOLICITATION FOR
WHICH THEY ARE ISSUED OR AT THE EXPIRATION OF THE PERIOD FOR WHICH THEY
ARE VALID;" 

(SUBSECTION (E) AUTHORIZES THE BOARD TO RECALL AND AMEND OR CORRECT
THE INFORMATION CARDS ON RECEIVING ADDITIONAL INFORMATION WHICH, IN ITS
OPINION, RENDERS INACCURATE ANY STATEMENT CONTAINED IN IT.) 

"(F)  TO WAIVE ALL CONDITIONS OF THIS ARTICLE UPON APPLICATION OF
PERSON FILING NOTICE OF INTENTION, IN RESPECT TO INFORMATION CARDS AND
FILING COPIES OF WRITTEN AUTHORIZATION WHEN A CAMPAIGN OR DRIVE FOR
RAISING FUNDS FOR ANY CHARITABLE PURPOSE IS GIVEN GENERAL PUBLICITY
THROUGH THE PRESS OR OTHERWISE, AND WHEN MORE THAN TWENTY-FIVE (25)
PERSONS SERVE AS SOLICITORS WITHOUT COMPENSATION, IF IT SHALL BE PROVED
TO THE SATISFACTION OF THE BOARD THAT THE PUBLICITY CONCERNING THE
SOLICITATION FULLY INFORMS THE GENERAL PUBLIC AND THE PERSONS TO BE
SOLICITED AS TO THE FACTS REQUIRED TO BE SET FORTH ON THE INFORMATION
CARD." 

FN17  IN ADDITION TO "THE AMOUNT AND KIND OF THE CONTRIBUTION," THE
RECEIPT MUST SHOW "SUBSTANTIALLY" THE NAME OF THE ASSOCIATION AIDED; A
STATEMENT WHETHER THE CONTRIBUTION IS TO BE APPLIED TO ITS "GENERAL
PURPOSES" OR TO SPECIAL ONES AND, IF THE LATTER, "THE NATURE THEREOF
... CLEARLY STATED"; THAT THE INFORMATION CARD WAS PRESENTED FOR
PERUSAL PRIOR TO THE MAKING OF THE CONTRIBUTION.  BUT TENDER OF THE
RECEIPT IS NOT REQUIRED IF THE DONATION IS MADE, IN MONEY, BY PLACING
IT IN A LOCKED RECEPTACLE PREVIOUSLY APPROVED BY THE BOARD. 

FN18  THE REGULATIONS GOVERNING PROMOTERS REQUIRE A LICENSE FROM THE
BOARD DISTINCT FROM OR ADDITIONAL TO THE INFORMATION CARD WHICH
SOLICITORS MUST SECURE, SEC. 44.19(1); THE PAYMENT OF A $25.00 LICENSE
FEE, SEC. 44.19(4); THE FILING OF A BOND IN THE SUM OF $2000
CONDITIONED AS SPECIFIED IN SEC. 44.19(3); AND PROOF TO SATISFY THE
BOARD THAT THE APPLICANT IS "OF GOOD CHARACTER AND REPUTATION" AND HAS
"SUFFICIENT FINANCIAL RESPONSIBILITY TO CARRY OUT THE OBLIGATIONS
INCIDENT TO ANY SOLICITATION SUCH APPLICANT MAY MAKE."  SEC. 44.19(5). 
THE ORDINARY SOLICITOR, ON THE OTHER HAND, MUST SECURE ONLY THE
INFORMATION CARD, WHICH IS IN EFFECT A PERMIT; PAY THE COST OF THE
CARD; AND GENERALLY, IT WOULD SEEM, COMPLY WITH THE OTHER REQUIREMENTS
HERETOFORE OUTLINED FOR SECURING THE CARD. 

FN19  SECTION 44.01 DEFINES "PROMOTER" TO MEAN "ANY PERSON WHO FOR
PECUNIARY COMPENSATION OR CONSIDERATION RECEIVED OR TO BE RECEIVED,
SOLICITS OR IS ENGAGED IN THE BUSINESS OF OR HOLDS HIMSELF OUT TO THE
PUBLIC AS ENGAGED IN THE BUSINESS OF SOLICITING CONTRIBUTIONS FOR OR ON
BEHALF OF ANY OTHER PERSON OR ANY CHARITABLE ASSOCIATION, CORPORATION
OR INSTITUTION, OR CONDUCTS, MANAGES OR CARRIES ON OR AGREES TO
CONDUCT, MANAGE OR CARRY ON OR IS ENGAGED IN THE BUSINESS OF OR HOLDS
HIMSELF OUT AS ENGAGED IN THE BUSINESS OF CONDUCTING, MANAGING OR
CARRYING ON ANY DRIVE OR CAMPAIGN FOR ANY SUCH PURPOSE  ...  " 

"SOLICITOR," BUT DEFINES "SOLICITATION" BROADLY, AS WE HAVE INDICATED
IN NOTE 11 SUPRA.  THE MEANING OF "SOLICITOR" APPARENTLY IS LEFT
THEREFORE TO BE GATHERED DEFINITIVELY FROM THE DEFINITION OF
"SOLICITATION" AND THE USE OF "SOLICIT" OR "SOLICITOR" IN THE SPECIAL
CONTEXT OF OTHER SECTIONS AS THEY BECOME PERTINENT. 

IT SHOULD BE NOTED THAT THE DEFINITION OF "PROMOTER" IN SEC. 44.01,
BY INCLUDING THE WORD "SOLICITS," ITALICIZED ABOVE, WOULD SEEM
LITERALLY BROAD ENOUGH TO INCLUDE ANY PAID SOLICITOR OF CONTRIBUTIONS
"FOR OR ON BEHALF OF ANY OTHER PERSON" OR CHARITABLE ORGANIZATION, AND
THUS TO INCLUDE ALL SOLICITORS EXCEPT WHOLLY VOLUNTARY ONES.  THIS
SEEMS TO HAVE BEEN JUSTICE CARTER'S VIEW AS EXPRESSED IN HIS DISSENT IN
THE GOSPEL ARMY CASE, 27 CAL.2D 232, 266.  HOWEVER, OTHER SECTIONS
INDICATE THAT SOLICITORS MAY BE PAID AS WELL AS VOLUNTARY WITHOUT
BECOMING PROMOTERS.  SEE SEC. 44.19(9).  AND SEE NOTE 20.  MURDOCK
APPARENTLY RECEIVES COMPENSATION FOR HIS SERVICES AS AN OFFICER OF THE
RESCUE ARMY. 

FN20  IN THE GOSPEL ARMY CASE THE RECORD SHOWS THAT ALL THE
SOLICITORS WERE PAID UPON A PERCENTAGE BASIS.  NEVERTHELESS, THE COURT
DEALT IN ITS OPINION WITH THE PROVISIONS GOVERNING SOLICITORS AS WELL
AS PROMOTERS, THUS INDICATING APPARENTLY THAT IN ITS VIEW THE
DIFFERENCE WAS OTHER THAN THAT SOLICITORS ARE VOLUNTARY WORKERS AND
PROMOTERS ARE PAID.  THE ORDINANCE AND THE STATE COURT'S OPINIONS, MORE
ESPECIALLY IN THE GOSPEL ARMY CASE, APPEAR TO TREAT THE TWO GROUPS AS
DISTINCT AND NOT MERELY OVERLAPPING IN RELATION TO PERSONS THEMSELVES
ENGAGED IN DIRECT SOLICITATION. 

FN21  SEE NOTES 19 AND 20. 

FN22  SPECIFIC AND HIGHLY DETAILED RECORDS AND REPORTS MUST BE MADE
OF CONTRIBUTIONS RECEIVED, OF EXPENDITURES, AND OF OTHER MATTERS. 
SECS. 44.08, 44.14.  WRITTEN AND CORPORATELY AUTHENTICATED
AUTHORIZATIONS MUST BE ISSUED.  SECS. 44.10, 44.11.  INDEED COMPLIANCE
WITH SUCH REQUIREMENTS AS THOSE RELATING TO FILING THE NOTICE OF
INTENTION UNDER SEC. 44.05 AND PROCURING THE INFORMATION CARD UNDER
SEC. 44.03 FOR USE BY PERSONS ACTING FOR THE CHARITY FORCES
ORGANIZATIONAL CONFORMITY AS MUCH AS INDIVIDUAL.  AND BY DEPARTMENTAL
REGULATION, APPARENTLY, FIFTY PER CENT OF ALL CONTRIBUTIONS RECEIVED
MUST BE APPLIED TO THE CHARITABLE PURPOSE RATHER THAN TO EXPENSES OF
COLLECTION OR PROMOTION. 

FN23  THE SUBSECTION IS ONE OF THE FEW NOT REFERRING TO OTHER
PROVISIONS OF THE ARTICLE OR THE CODE.  NONE OF THEM CONTAINS ANY
SPECIFICATION OF CONDITIONS FOR SECURING THE BOARD'S WRITTEN
PERMISSION.  CF. NOTE 5.  THE CALIFORNIA SUPREME COURT, HOWEVER,
SUPPLIED THEM IN THE FOLLOWING LANGUAGE:  "WE CONCLUDE, THEREFORE, THAT
IF SUBDIVISION (A) OF SECTION 44.09 IS READ, AS IT MUST BE, IN LIGHT OF
THE PURPOSE AND CONTEXT OF THE ENTIRE ORDINANCE, ON THE ONE HAND, AND
THE PECULIAR CIRCUMSTANCES ATTENDANT UPON COLLECTIONS BY MEANS OF
RECEPTACLES IN PUBLIC PLACES, ON THE OTHER HAND, THAT THE DENIAL OF A
PERMIT IS WARRANTED ONLY IF THE INFORMATION FURNISHED TO THE BOARD
DISCLOSES FRAUD OR IF THE SOLICITATION AS PLANNED WOULD INTERFERE WITH
THE PUBLIC CONVENIENCE AND SAFETY."  28 CAL.2D AT 471-472. 

IT BECOMES UNNECESSARY, HOWEVER, TO CONSIDER THE VALIDITY OF POSSIBLE
INDEPENDENT APPLICATION OF SEC. 44.09(A), FOR REASONS TO BE STATED. 
SEE TEXT INFRA PART IV, FOLLOWING NOTE 43. 

FN24  SEE TEXT INFRA PART IV, CIRCA NOTE 50. 

FN25  THE FOLLOWING AUTHORITIES WERE CITED AND RELIED UPON:  WESTON
V. CHARLESTON, 2 PET. 449, 464; MT. VERNON COTTON CO. V. ALABAMA POWER
CO., 240 U.S. 30, 31; MISSOURI EX REL. ST. LOUIS, B. & M.R. CO. V.
TAYLOR, 266 U.S. 200, 206; MICHIGAN CENTRAL R. CO. V. MIX, 278 U.S.
492, 494. 

FN26  REFERRING TO THE STATE COURT'S DENIAL OF THE WRIT, THE BANDINI
OPINION STATED:  "THAT JUDGMENT, HOWEVER, MERELY DEALT WITH THE
JURISDICTION OF THE SUPERIOR COURT OF THE SUIT FOR INJUNCTION, AND THE
ONLY QUESTION BEFORE US IS WHETHER THE DISTRICT COURT OF APPEAL ERRED
IN DECIDING THE FEDERAL QUESTIONS AS TO THE VALIDITY OF THE STATUTE
UPON WHICH THAT JURISDICTION WAS BASED.  MOREOVER, WITH ALL QUESTIONS
OF FACT, OR WITH QUESTIONS OF LAW WHICH WOULD APPROPRIATELY BE RAISED
UPON THE FACTS ADDUCED IN THE TRIAL OF THE CASE IN THE SUPERIOR COURT,
AS A COURT COMPETENT TO ENTERTAIN THE SUIT, WE ARE NOT CONCERNED ON
THIS APPEAL."  284 U.S. AT 14.  "  ... THE DISTRICT COURT OF APPEAL
MUST BE REGARDED, AS ITS OPINION IMPORTS, AS HAVING DETERMINED MERELY
THAT THE STATUTE WAS VALID UPON ITS FACE SO THAT THE SUPERIOR COURT HAD
JURISDICTION TO ENTERTAIN THE INJUNCTION SUIT.  IT IS THAT
DETERMINATION ALONE THAT WE CAN NOW CONSIDER."  284 U.S. AT 15-16. 

FN27  SEE THE AUTHORITIES CITED IN NOTES 25 AND 28. 

FN28  IN HOLMES V. JENNISON, 14 PET. 540, THE COURT HELD THAT AN
ORDER OF A STATE COURT OF LAST RESORT REFUSING TO DISCHARGE A PRISONER
UPON HABEAS CORPUS WAS A FINAL JUDGMENT SUBJECT TO REVIEW.  IN REACHING
THAT CONCLUSION TANEY, C.J., RELIED UPON WESTON V. CHARLESTON, 2 PET.
449, AS "DECISIVE."  THAT DECISION, RENDERED BY MARSHALL, C.J., HELD
FOR THE FIRST TIME THAT THE DENIAL OF A WRIT OF PROHIBITION WAS A FINAL
JUDGMENT.  SEE ALSO LARGENT V. TEXAS, 318 U.S. 418, WHERE THE COURT
CITES BOTH BANDINI CO. V. SUPERIOR COURT, 284 U.S. 8, AND BRYANT V.
ZIMMERMAN, 278 U.S. 63. 

FN29  ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE CO., 329 U.S. 129; UNITED
PUBLIC WORKERS V. MITCHELL, 330 U.S. 75. 

FN30  SEE, E.G., AS TO APPEALS FROM STATE COURTS, SEC. 237(A) OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 344(A), RULE 12(1) OF THE REVISED RULES
OF THE SUPREME COURT OF THE UNITED STATES; HONEYMAN V. HANAN, 300 U.S.
14. 

FN31  BRANDEIS, J., WITH WHOM STONE, ROBERTS AND CARDOZO, JJ.,
CONCURRED, IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288,
CONCURRING OPINION AT 346. 

FN32  ID., AT 346-348, AND AUTHORITIES CITED.  SEE ALSO COFFMAN V.
BREEZE CORPORATIONS, 323 U.S. 316, 324-325. 

FN33  FOR EXAMPLE, WITH REFERENCE TO THE RULE FORBIDDING DECISION OF
PROPERLY PRESENTED CONSTITUTIONAL QUESTIONS, IF THE CASE MAY BE
DISPOSED OF ON ANOTHER GROUND:  "THUS, IF A CASE CAN BE DECIDED ON
EITHER OF TWO GROUNDS, ONE INVOLVING A CONSTITUTIONAL QUESTION, THE
OTHER A QUESTION OF STATUTORY CONSTRUCTION OR GENERAL LAW, THE COURT
WILL DECIDE ONLY THE LATTER.  SILER V. LOUISVILLE & NASHVILLE R. CO.,
213 U.S. 175, 191; LIGHT V. UNITED STATES, 220 U.S. 523, 538.  APPEALS
FROM THE HIGHEST COURT OF A STATE CHALLENGING ITS DECISION OF A
QUESTION UNDER THE FEDERAL CONSTITUTION ARE FREQUENTLY DISMISSED
BECAUSE THE JUDGMENT CAN BE SUSTAINED ON AN INDEPENDENT STATE GROUND. 
BEREA COLLEGE V. KENTUCKY, 211 U.S. 45, 53."  297 U.S. AT 347. 

FN34  "IF THERE IS ONE DOCTRINE MORE DEEPLY ROOTED THAN ANY OTHER IN
THE PROCESS OF CONSTITUTIONAL ADJUDICATION, IT IS THAT WE OUGHT NOT TO
PASS ON QUESTIONS OF CONSTITUTIONALITY ...  UNLESS SUCH ADJUDICATION IS
UNAVOIDABLE."  SPECTOR MOTOR SERVICE V. MCLAUGHLIN, 323 U.S. 101, 105. 
IT HAS LONG BEEN THE COURT'S "CONSIDERED PRACTICE NOT TO DECIDE
ABSTRACT, HYPOTHETICAL OR CONTINGENT QUESTIONS  ...  OR TO DECIDE ANY
CONSTITUTIONAL QUESTION IN ADVANCE OF THE NECESSITY FOR ITS DECISION
...  OR TO FORMULATE A RULE OF CONSTITUTIONAL LAW BROADER THAN IS
REQUIRED BY THE PRECISE FACTS TO WHICH IT IS TO BE APPLIED  ...  OR TO
DECIDE ANY CONSTITUTIONAL QUESTION EXCEPT WITH REFERENCE TO THE
PARTICULAR FACTS TO WHICH IT IS TO BE APPLIED  ...  "  ALABAMA STATE
FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 461.  "IT IS NOT THE
HABIT OF THE COURT TO DECIDE QUESTIONS OF A CONSTITUTIONAL NATURE
UNLESS ABSOLUTELY NECESSARY TO A DECISION OF THE CASE."  BURTON V.
UNITED STATES, 196 U.S. 283, 295. 

FN35  WHICH HAS HAD APPLICATION IN APPEALS AND ON WRITS OF ERROR, AS
WELL AS IN CASES ARISING UNDER THE CERTIORARI JURISDICTION.  SEE LUTHER
V. BORDEN, 7 HOW.  1; PACIFIC STATES TEL. & TEL. CO. V. OREGON, 223
U.S. 118; OHIO EX REL. DAVIS V. HILDEBRANT, 241 U.S. 565; OPINION OF
FRANKFURTER, J., IN COLEGROVE V. GREEN, 328 U.S. 549. 

FN36  LIKE THE POLICY ABOUT POLITICAL MATTERS, ALTHOUGH NOT GOING TO
JURISDICTION AS THAT POLICY DOES, IT IS A RULE "WHICH CANNOT BE MET BY
VERBAL FENCING ABOUT 'JURISDICTION.'  IT MUST BE RESOLVED BY
CONSIDERATIONS ON THE BASIS OF WHICH THIS COURT, FROM TIME TO TIME, HAS
REFUSED TO INTERVENE IN CONTROVERSIES."  OPINION OF FRANKFURTER, J., IN
COLEGROVE V. GREEN, 328 U.S. 549, 552. 

FN37  INDEED MORE THAN ONCE THE POLICY HAS BEEN APPLIED IN ORDER TO
AVOID THE NECESSITY OF DECIDING THE "CASE OR CONTROVERSY"
JURISDICTIONAL QUESTION, WHEN CONSTITUTIONAL ISSUES WERE AT STAKE ON
THE MERITS, E.G., RECENTLY IN DECLARATORY JUDGMENT PROCEEDINGS.  SEE
AMERICAN FEDERATION OF LABOR V. WATSON, 327 U.S. 582; UNITED PUBLIC
WORKERS V. MITCHELL, 330 U.S. 75.  COMPARE ALABAMA STATE FEDERATION OF
LABOR V. MCADORY, 325 U.S. 450, AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS V. MCADORY, 325 U.S. 472, WHICH AROSE UNDER STATE
DECLARATORY JUDGMENT ACTS. 

FN38  IT IS NOT WITHOUT SIGNIFICANCE FOR THE POLICY'S VALIDITY THAT
THE PERIODS WHEN THE POWER HAS BEEN EXERCISED MOST READILY AND BROADLY
HAVE BEEN THE ONES IN WHICH THIS COURT AND THE INSTITUTION OF JUDICIAL
REVIEW HAVE HAD THEIR STORMIEST EXPERIENCES.  SEE E.G., BRANT, STORM
OVER THE CONSTITUTION (1936). 

FN39  SEE THE AUTHORITIES CITED IN NOTE 37 SUPRA.  CF. COFFMAN V.
BREEZE CORPORATIONS, 323 U.S. 316, 324. 

FN40  AS THE CASES CITED IN NOTE 37 ILLUSTRATE, THE PROCEDURE HAS
BEEN UTILIZED TO BRING FOR DECISION CHALLENGES TO AN ENTIRE ARRAY OF
STATUTORY PROVISIONS ALLEGED TO VIOLATE RIGHTS SECURED BY AN ALMOST
EQUAL ARRAY OF CONSTITUTIONAL PROVISIONS.  THE STRATEGIC CONCEPTION
SEEMS TO HAVE BEEN THAT THE DECLARATORY JUDGMENT SUIT FURNISHES A READY
VEHICLE FOR PRESENTING AND SECURING DECISION OF CONSTITUTIONAL MATTERS,
SOLELY UPON THE PLEADINGS, IN HIGHLY ABSTRACT OR PREMATURE, IF NOT
HYPOTHETICAL STATES OF FACT, AND EN MASSE.  SUCH A NOTION OF COURSE IS
ESSENTIALLY CONTRADICTORY OF THE POLICY AND, IF ACCEPTED, WOULD GO FAR
TOWARD NULLIFYING IT. 

FN41  BY DISPENSING WITH THE NECESSITY OF ASKING FOR SPECIFIC RELIEF
BEYOND THAT AFFORDED BY ADJUDICATION ITSELF, IT IS TRUE, THE OCCASIONS
FOR APPLYING THE POLICY THROUGH GROUNDING DECISION UPON FAILURE TO
SATISFY REMEDIAL LIMITATIONS HAVE BEEN AVOIDED.  BUT, AS SLOUGHING OFF
THOSE LIMITATIONS HAS NOT, AND OF COURSE COULD NOT, OVERCOME THE CASE
AND CONTROVERSY REQUIREMENT, NO MORE WAS THIS INTENDED TO DISCARD THE
COROLLARY POLICY EFFECTIVE WITHIN THE LIMITS OF CONCEDED JURISDICTION. 
INDEED THE DISCRETIONARY ELEMENT CHARACTERISTIC OF DECLARATORY
JURISDICTION, AND IMPORTED PERHAPS FROM EQUITY JURISDICTION AND
PRACTICE WITHOUT THE REMEDIAL PHASE, OFFERS A CONVENIENT INSTRUMENT FOR
MAKING THE POLICY EFFECTIVE, QUITE TO THE CONTRARY EFFECT OF THE
CONCEPTION DISCUSSED IN NOTE 40 ABOVE.  BUT THAT ELEMENT, FOR
APPLICATION OF THE POLICY, IS ONLY ONE OF CONVENIENCE, NOT ONE OF
NECESSITY.  NO MORE IS APPLICATION DEPENDENT UPON IT, ESSENTIALLY, THAN
UPON THE SIMILAR ELEMENT IN OTHER TYPES OF SUIT, AS FOR EXAMPLE IN
SUITS FOR INJUNCTIVE RELIEF.  CF. SPECTOR MOTOR SERVICE V. MCLAUGHLIN,
323 U.S. 101. 

FN42  IT IS ALLEGED IN THE PETITION FOR THE WRIT OF PROHIBITION THAT
MURDOCK WAS CHARGED WITH HAVING VIOLATED SECS. 44.09 AND 44.12 OF THE
MUNICIPAL CODE "IN THAT, AS IT IS CHARGED IN SAID COMPLAINT, COURT I
THEREOF, SAID MURDOCK SOLICITED CONTRIBUTIONS, AND IN COURT II THEREOF,
THAT SAID MURDOCK HAD NO PERMIT OR INFORMATION CARD, AND FAILED TO SHOW
THE SAME TO A PERSON SOLICITED BY SAID MURDOCK.  ...  " 

FN43  SEE NOTE 3 SUPRA. 

FN44  SEE NOTE 5 SUPRA. 

FN45  THAT IS, INDEPENDENTLY OF THE ENTIRE SCHEME CONSIDERED AS A
VALID PLAN OF REGULATION IN ALL ITS PARTS, AS THE CALIFORNIA COURT
SUBSTANTIALLY CONSIDERED IT IN THE GOSPEL ARMY CASE.  DISMISSAL OF THAT
APPEAL, OF COURSE, FORBIDS EXPRESSION BY US OF ANY OPINION UPON THE
MERITS OF THE ISSUES AS INVOLVED IN THAT PRESENTATION, ASIDE FROM THOSE
NECESSARILY INCORPORATED IN THE DECISION OF THIS CAUSE. 

FN46  UNDER THE FAMILIAR BUT NOT INVARIABLY APPLIED RULE OF EJUSDEM
GENERIS.  SEE, E.G., LOS ANGELES V. SUPERIOR COURT, 2 CAL.2D 138, 140;
PASADENA UNIVERSITY V. LOS ANGELES COUNTY, 190 CAL. 786, 790; IN RE
JOHNSON, 167 CAL. 142, 145. 

FN47  SEE NOTE 5 SUPRA AND SEC. 44.12 AS QUOTED ABOVE IN THE TEXT,
PART I. 

FN48  SEE TEXT SUPRA PART II. 

FN49  THE RECEIPT REQUIREMENT APPARENTLY IS NOT APPLICABLE TO
SOLICITATIONS BY RECEPTACLE UNDER SECS. 44.09(A) AND (B).  SEE NOTE 17
SUPRA. 

FN50  THE LAST QUOTED MATTER WAS FOLLOWED BY THE STATEMENT:  "THE
ASSOCIATION FOR WHOM THE SOLICITATION IS MADE MUST MAINTAIN AN
ACCOUNTING SYSTEM RECORDING THE ENTRY OF ALL DONATIONS AND
DISBURSEMENTS.  (SEC. 44.08.)"  THIS PROVISION RELATES APPARENTLY TO
THE FURTHER REQUIREMENTS FOR FILING POST-SOLICITATION REPORTS. 

FN51  THE QUOTED SENTENCES WERE PRECEDED BY THE FOLLOWING:  "THE
REQUIREMENT THAT PROMOTERS AND THE SOLICITORS WORKING UNDER THEM SUBMIT
PROOF OF THEIR GOOD CHARACTER AND REPUTATION DOES NOT DISCRIMINATE
AGAINST PLAINTIFF OR OTHER RELIGIOUS ORGANIZATIONS OR CENSOR THEIR
RELIGIOUS BELIEFS, NOR DOES THE REGULATION VEST ARBITRARY POWER IN THE
ADMINISTRATIVE BOARD IN AUTHORIZING IT TO WITHHOLD A LICENSE IF IT IS
NOT SATISFIED THAT THE APPLICANT IS OF GOOD CHARACTER AND REPUTATION. 
SUCH A REQUIREMENT IS COMMON IN STATUTES REGULATING ADMISSION TO
PROFESSIONS AND OCCUPATIONS INVOLVING DUTIES OF A FIDUCIARY CHARACTER. 
...  THE FILING OF A BOND IS ALSO A COMMON REQUIREMENT IN THE
REGULATION OF OCCUPATIONS OR ACTIVITIES INVOLVING THE HANDLING OF
ENTRUSTED FUNDS.  ... THE LICENSE FEE IS A REASONABLE ONE, COVERING THE
EXPENSES OF INVESTIGATIONS AND ADMINISTRATION."  27 CAL.2D 232, 248
249. 

FN52  SEE THOMAS V. COLLINS, 323 U.S. 516, 538-539:  "HOW FAR THE
STATE CAN REQUIRE PREVIOUS IDENTIFICATION BY ONE WHO UNDERTAKES TO
EXERCISE THE RIGHTS SECURED BY THE FIRST AMENDMENT HAS BEEN LARGELY
UNDETERMINED.  IT HAS ARISEN HERE CHIEFLY, THOUGH ONLY TANGENTALLY, IN
CONNECTION WITH LICENSE REQUIREMENTS INVOLVING THE SOLICITATION OF
FUNDS, CANTWELL V. CONNECTICUT (310 U.S. 296); CF. SCHNEIDER V. STATE,
308 U.S. 147; LARGENT V. TEXAS, 318 U.S. 418, AND OTHER ACTIVITIES UPON
THE PUBLIC STREETS OR IN PUBLIC PLACES, CF. LOVELL V. GRIFFIN, 303 U.S.
444; HAGUE V. C.I.O., 307 U.S. 496, OR HOUSE-TO-HOUSE CANVASSING, CF.
SCHNEIDER V. STATE, SUPRA.  IN THESE CASES, HOWEVER, THE LICENSE
REQUIREMENTS WERE FOR MORE THAN MERE IDENTIFICATION OR PREVIOUS
REGISTRATION AND WERE HELD INVALID BECAUSE THEY VESTED DISCRETION IN
THE ISSUING AUTHORITIES TO CENSOR THE ACTIVITY INVOLVED.  NEVERTHELESS,
IT WAS INDICATED BY DICTUM IN CANTWELL V. CONNECTICUT, 310 U.S. 296,
306, THAT A STATUTE GOING NO FURTHER THAN MERELY TO REQUIRE PREVIOUS
IDENTIFICATION WOULD BE SUSTAINED IN RESPECT TO THE ACTIVITIES
MENTIONED." 

THE DICTUM REFERRED TO IS THE STATEMENT:  "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."  CANTWELL V.
CONNECTICUT, 310 U.S. 296, 306. 

FN53  THE RESCUE ARMY, SO FAR AS APPEARS, WAS NOT A PARTY TO THE
MUNICIPAL COURT SUIT.  NO ISSUE WAS MADE HERE CONCERNING ITS APPEARANCE
AS A PARTY IN THE PROHIBITION PROCEEDINGS IN THE STATE COURTS OR ON
THIS APPEAL.  ACCORDINGLY, WE EXPRESS NO OPINION IN THIS RESPECT.  CF.
INDEPENDENT WAREHOUSES V. SCHEELE, 331 U.S. 70. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
DISSENTING. 

IT IS DIFFICULT FOR ME TO BELIEVE THAT THE OPINION OF THE SUPREME
COURT OF CALIFORNIA IS SO AMBIGUOUS THAT THE PRECISE CONSTITUTIONAL
ISSUES IN THIS CASE HAVE BECOME TOO BLURRED FOR OUR POWERS OF
DISCERNMENT. 

THE COURTS BELOW AND THE PARTIES INVOLVED HAVE ALL ACTED ON THE
ASSUMPTION THAT THE APPELLANT MURDOCK WAS CHARGED WITH HAVING VIOLATED
SECS. 44.09(A) AND 44.12 OF THE LOS ANGELES MUNICIPAL CODE.  NOW IT IS
TRUE THAT VARIOUS OTHER PARTS OF THE CODE ARE INTERCONNECTED WITH THOSE
CONSTITUTIONAL ISSUES THEREBY RAISED SEEM CLEAR TO ME.  SIMPLY STATED,
THEY ARE:  (1) DOES IT VIOLATE THE CONSTITUTIONAL GUARANTEE OF FREEDOM
OF RELIGION TO PROHIBIT SOLICITORS OF RELIGIOUS CHARITIES FROM USING
BOXES OR RECEPTACLES IN PUBLIC PLACES EXCEPT BY WRITTEN PERMISSION OF
CITY OFFICIALS?  (2) IS THAT GUARANTEE INFRINGED BY A REQUIREMENT THAT
SUCH SOLICTORS DISPLAY AN INFORMATION CARD ISSUED BY CITY OFFICIALS? 

THOSE ISSUES WERE PROPERLY RAISED BELOW AND THE COURTS NECESSARILY
PASSED UPON THEM.  THE TIME IS THUS RIPE FOR THIS COURT TO SUPPLY THE
DEFINITIVE JUDICIAL ANSWERS.  ITS FAILURE TO DO SO IN THIS CASE FORCES
ME TO REGISTER THIS DISSENT. 
..END :




















ORDER OF TRAVELERS V. WOLFE, 331 U.S. 586 


NO. 32.  ARGUED FEBRUARY 28, 1946.  - REARGUED NOVEMBER 12, 1946.  -
DECIDED JUNE 9, 1947.  - 70 S.D. 452, 18 N.W.2D 755, REVERSED. 


1.  AN OHIO CITIZEN BROUGHT AN ACTION IN A STATE COURT IN SOUTH DAKOTA
AGAINST A FRATERNAL BENEFIT SOCIETY, INCORPORATED IN OHIO AND LICENSED
TO DO BUSINESS IN SOUTH DAKOTA, TO RECOVER BENEFITS CLAIMED TO HAVE
ARISEN UNDER THE SOCIETY'S CONSTITUTION AS A RESULT OF THE DEATH OF AN
INSURED MEMBER WHO HAD BEEN A CITIZEN OF SOUTH DAKOTA THROUGHOUT HIS
MEMBERSHIP.  THE SOCIETY'S CONSTITUTION, WHICH WAS VALID IN OHIO,
PROHIBITED THE BRINGING OF AN ACTION ON SUCH A CLAIM MORE THAN SIX
MONTHS AFTER ITS DISALLOWANCE BY THE SOCIETY.  THE ACTION WAS BROUGHT
AFTER EXPIRATION OF THIS TIME BUT BEFORE THE EXPIRATION OF THE PERIOD
PRESCRIBED BY SOUTH DAKOTA LAW FOR COMMENCING SUITS ON CONTRACTS.  A
STATUTE OF SOUTH DAKOTA DECLARED VOID EVERY STIPULATION OR CONDITION IN
A CONTRACT WHICH LIMITS THE TIME WITHIN WHICH A PARTY THERETO MAY
ENFORCE HIS RIGHTS BY USUAL LEGAL PROCEEDINGS IN THE ORDINARY
TRIBUNALS.  HELD:  THE FEDERAL CONSTITUTION REQUIRES SOUTH DAKOTA TO
GIVE FULL FAITH AND CREDIT TO THE PUBLIC ACTS OF OHIO UNDER WHICH THE
SOCIETY WAS INCORPORATED, AND THE CLAIMANT WAS BOUND BY THE SIX-MONTH
LIMITATION UPON BRINGING SUCH AN ACTION.  PP. 588-589, 624-625. 

2.  A CLAIM BASED ON MEMBERSHIP RIGHTS UNDER THE CONSTITUTION OF AN
INCORPORATED FRATERNAL BENEFIT SOCIETY, THE TERMS OF WHICH ARE SUBJECT
TO AMENDMENT THROUGH THE PROCESSES OF A REPRESENTATIVE FORM OF
GOVERNMENT AUTHORIZED BY THE LAW OF THE STATE OF INCORPORATION, DIFFERS
FROM A CLAIM FOR BENEFITS UNDER AN ORDINARY CONTRACT OF ACCIDENT
INSURANCE WHETHER ISSUED BY A STOCK OR A MUTUAL INSURANCE COMPANY.  PP.
600, 606. 

3.  IT IS OF PRIMARY SIGNIFICANCE FROM THE LEGAL POINT OF VIEW IN
THIS CASE THAT THE SOCIETY IS A VOLUNTARY FRATERNAL ASSOCIATION
ORGANIZED AND CARRIED ON NOT FOR PROFIT BUT SOLELY FOR THE MUTUAL
BENEFIT OF ITS MEMBERS AND THEIR BENEFICIARIES, AND HAS A
REPRESENTATIVE FORM OF GOVERNMENT WHICH SHALL MAKE PROVISION FOR THE
PAYMENT OF BENEFITS IN ACCORDANCE WITH CERTAIN STATUTORY REQUIREMENTS. 
P. 605. 

4.  RELATIONSHIPS BETWEEN THE MEMBERS OF FRATERNAL BENEFIT SOCIETIES
ARE CONTRACTUAL IN THAT THEY ARE UNDERTAKEN VOLUNTARILY IN
CONSIDERATION OF THE LIKE OBLIGATIONS OF OTHERS; BUT, INTERWOVEN WITH
THEIR FINANCIAL RIGHTS AND OBLIGATIONS, THEY HAVE OTHER COMMON
INTERESTS INCIDENTAL TO THEIR MEMBERSHIPS, WHICH GIVE THEM A STATUS
TOWARD ONE ANOTHER THAT INVOLVES MORE INTERDEPENDENCE THAN ARISES FROM
PURELY BUSINESS AND FINANCIAL RELATIONSHIPS.  PP. 605-606. 

5.  MEMBERSHIP IN A FRATERNAL BENEFIT SOCIETY IS GOVERNED BY THE LAW
OF THE STATE OF INCORPORATION; CONTROL OVER ITS TERMS IS VESTED IN THE
ELECTED REPRESENTATIVE GOVERNMENT OF THE SOCIETY AS AUTHORIZED AND
REGULATED BY THAT LAW.  P. 606. 

6.  BY VIRTUE OF THE FULL FAITH AND CREDIT CLAUSE, THE PEOPLE OF THE
UNITED STATES HAVE IMPOSED UPON THE GENERAL RULES GOVERNING CONFLICTS
OF LAWS RESPECTING STATUTES OF LIMITATIONS ON CLAIMS ARISING OUT OF
ORDINARY CONTRACTS ANOTHER LIMITATION, GIVING EFFECT TO A LIMITATION
CONTAINED, AS IN THE PRESENT CASE, IN THE CONSTITUTION OF A FRATERNAL
BENEFIT SOCIETY.  P. 607. 

7.  FRATERNAL BENEFIT SOCIETIES EXIST BY VIRTUE OF THE LAWS OF THE
STATES OF THEIR INCORPORATION, AND THE RIGHTS AND OBLIGATIONS INCIDENT
TO MEMBERSHIP IN THEM ARE AS MUCH ENTITLED TO FULL FAITH AND CREDIT AS
THE STATUTES UPON WHICH THEY DEPEND.  P. 609. 

8.  TO PERMIT RECOVERY IN THIS CASE WOULD FAIL TO GIVE FULL FAITH AND
CREDIT TO THE TERMS OF MEMBERSHIP AUTHORIZED BY OHIO BY PLACING AN
ADDITIONAL LIABILITY ON THE SOCIETY BEYOND THAT AUTHORIZED BY OHIO OR
ACCEPTED BY THE SOCIETY.  P. 610. 

9.  THE WEIGHT OF PUBLIC POLICY BEHIND THE GENERAL STATUTE OF SOUTH
DAKOTA, WHICH SEEKS TO AVOID CONTRACTUAL LIMITATIONS UPON RIGHTS TO SUE
ON ORDINARY CONTRACTS, DOES NOT EQUAL THAT WHICH MAKES NECESSARY THE
RECOGNITION OF THE SAME TERMS OF MEMBERSHIP FOR MEMBERS OF FRATERNAL
BENEFIT SOCIETIES WHEREVER THEIR BENEFICIARIES MAY BE - ESPECIALLY
WHERE THE STATE, WITH FULL INFORMATION AS TO THOSE TERMS OF MEMBERSHIP,
HAS PERMITTED SUCH SOCIETIES TO DO BUSINESS AND SECURE MEMBERS WITHIN
ITS BORDERS.  P. 624. 

10.  IF A STATE GIVES SOME FAITH AND CREDIT TO THE LAWS OF ANOTHER
STATE BY PERMITTING ITS OWN CITIZENS TO BECOME MEMBERS OF, AND BENEFIT
FROM, FRATERNAL BENEFIT SOCIETIES ORGANIZED BY SUCH OTHER STATE, IT
MUST GIVE FULL FAITH AND CREDIT TO THOSE LAWS AND MUST RECOGNIZE THE
BURDENS AND LIMITATIONS WHICH ARE INHERENT IN SUCH MEMBERSHIPS.  P.
625. 

ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA V. WOLFE. 

CERTIORARI TO THE SUPREME COURT OF SOUTH DAKOTA. 

IN AN ACTION BROUGHT IN A STATE COURT IN SOUTH DAKOTA, AN OHIO
CITIZEN OBTAINED A JUDGMENT AGAINST A FRATERNAL BENEFIT SOCIETY
INCORPORATED IN OHIO FOR BENEFITS CLAIMED TO HAVE ARISEN UNDER THE
SOCIETY'S CONSTITUTION AS A RESULT OF THE DEATH OF AN INSURED MEMBER
WHO WAS A CITIZEN OF SOUTH DAKOTA.  THE SUPREME COURT OF SOUTH DAKOTA
AFFIRMED.  70 S.D. 452, 18 N.W.2D 755.  THIS COURT GRANTED CERTIORARI. 
326 U.S. 712.  REVERSED, P. 625. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION IN A CIRCUIT COURT OF THE STATE OF SOUTH DAKOTA,
BROUGHT BY AN OHIO CITIZEN AGAINST A FRATERNAL BENEFIT SOCIETY
INCORPORATED IN OHIO, TO RECOVER BENEFITS CLAIMED TO HAVE ARISEN UNDER
THE CONSTITUTION OF THAT SOCIETY AS A RESULT OF THE DEATH OF AN INSURED
MEMBER WHO HAD BEEN A CITIZEN OF SOUTH DAKOTA THROUGHOUT HIS
MEMBERSHIP.  THE CASE PRESENTS THE QUESTION WHETHER THE FULL FAITH AND
CREDIT CLAUSE OF THE CONSTITUTION OF THE UNITED STATES  FN1  REQUIRED
THE COURT OF THE FORUM, SOUTH DAKOTA, TO GIVE EFFECT TO A PROVISION OF
THE CONSTITUTION OF THE SOCIETY PROHIBITING THE BRINGING OF AN ACTION
ON SUCH A CLAIM MORE THAN SIX MONTHS AFTER THE DISALLOWANCE OF THE
CLAIM BY THE SUPREME EXECUTIVE COMMITTEE OF THE SOCIETY,  FN2  WHEN
THAT PROVISION WAS VALID UNDER THE LAW OF THE STATE OF THE SOCIETY'S
INCORPORATION, OHIO, BUT WHEN THE TIME PRESCRIBED GENERALLY BY SOUTH
DAKOTA FOR COMMENCING ACTIONS ON CONTRACTS WAS SIX YEARS  FN3 AND WHEN
ANOTHER STATUTE OF SOUTH DAKOTA DECLARED THAT - 

"EVERY STIPULATION OR CONDITION IN A CONTRACT, BY WHICH ANY PARTY
THERETO IS RESTRICTED FROM ENFORCING HIS RIGHTS UNDER THE CONTRACT BY
THE USUAL LEGAL PROCEEDINGS IN THE ORDINARY TRIBUNALS, OR WHICH LIMITS
THE TIME WITHIN WHICH HE MAY THUS ENFORCE HIS RIGHTS, IS VOID."  FN4 

WE HOLD THAT, UNDER SUCH CIRCUMSTANCES, SOUTH DAKOTA, AS THE STATE OF
THE FORUM, WAS REQUIRED, BY THE CONSTITUTION OF THE UNITED STATES, TO
GIVE FULL FAITH AND CREDIT TO THE PUBLIC ACTS OF OHIO UNDER WHICH THE
FRATERNAL BENEFIT SOCIETY WAS INCORPORATED, AND THAT THE CLAIMANT WAS
BOUND BY THE SIX-MONTH LIMITATION UPON BRINGING SUIT TO RECOVER DEATH
BENEFITS BASED UPON MEMBERSHIP RIGHTS OF A DECEDENT UNDER THE
CONSTITUTION OF THE SOCIETY.  THIS HAS BEEN THE CONSISTENT VIEW OF THIS
COURT.  FN5 

THE RECORD IN THE PRESENT CASE WELL ILLUSTRATES BOTH THE PRACTICAL
EFFECT OF SUCH A LIMITATION AS THAT CONTAINED IN THE CONSTITUTION OF
THIS SOCIETY AND THE NEED FOR THE APPLICATION OF THE FULL FAITH AND
CREDIT CLAUSE TO MEMBERSHIP OBLIGATIONS IN FRATERNAL BENEFIT
SOCIETIES. 

THE PETITIONER, THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA,
WAS INCORPORATED IN 1888, UNDER THE GENERAL CORPORATION LAWS OF OHIO. 
FN6 BY 1920, WHEN THE DECEDENT, FORD SHANE, OF RAPID CITY, SOUTH
DAKOTA, BECAME A MEMBER, THIS FRATERNAL BENEFIT SOCIETY WAS IN ACTIVE
OPERATION IN MANY STATES.  THEN, AND AT HIS DEATH IN 1931, IT WAS
REGULATED IN DETAIL BY THE GENERAL CODE OF OHIO.  THAT CODE INCLUDED
PUBLIC ACTS OF OHIO ON SUCH SUBJECTS AS THE FOLLOWING:  SEC. 9462,
FRATERNAL BENEFIT SOCIETY DEFINED N7; SEC. 9463, LODGE SYSTEM; SEC.
9464, REPRESENTATIVE FORM OF GOVERNMENT, INCLUDING RESTRICTIONS ON
AMENDMENTS TO ITS CONSTITUTION; SEC. 9465, EXEMPTION FROM GENERAL
INSURANCE LAWS OF THE STATE; SEC. 9466, BENEFITS; SEC. 9467, TO WHOM
BENEFITS SHALL BE PAID, STATING LIMITATIONS ON THE DEGREES OF FAMILY
RELATIONSHIP PERMITTED TO EXIST BETWEEN A MEMBER AND THOSE WHOM HE MAY
DESIGNATE TO RECEIVE BENEFITS AS A RESULT OF HIS DEATH; SEC. 9468, AGE
LIMITS FOR ADMISSION TO MEMBERSHIP; SEC. 9469, CERTIFICATE SHALL
CONSTITUTE AGREEMENT N8; SEC. 9469-1, EXCEPTION AS TO COMMERCIAL
TRAVELERS N9; SEC. 9470, INVESTMENT, DISBURSEMENT AND APPLICATION OF
FUNDS; SEC. 9481, LAWS OF SOCIETY SHALL BE BINDING ON MEMBERS AND
BENEFICIARIES, AND THE SOCIETY MAY PROVIDE, AS HERE, THAT NO
SUBORDINATE BODY, OFFICERS OR MEMBERS MAY WAIVE ANY OF THE PROVISIONS
OF THE LAWS AND CONSTITUTION OF THE SOCIETY.  FN10  THESE PUBLIC ACTS
HAVE CREATED AND REGULATED THE SOCIETY AND THE RIGHTS AND OBLIGATIONS
OF ITS MEMBERS.  THEY ARE REFLECTED IN ITS ARTICLES OF INCORPORATION,
CONSTITUTION AND BY-LAWS.  THEY MAKE POSSIBLE UNIFORMITY OF RIGHTS AND
OBLIGATIONS AMONG ALL MEMBERS THROUGHOUT THE COUNTRY, PROVIDED FULL
FAITH AND CREDIT ARE GIVEN ALSO TO THE CONSTITUTION AND BY-LAWS OF THE
SOCIETY INSOFAR AS THEY ARE VALID UNDER THE LAW OF THE STATE OF
INCORPORATION.  IF FULL FAITH AND CREDIT ARE NOT GIVEN TO THESE
PROVISIONS, THE MUTUAL RIGHTS AND OBLIGATIONS OF THE MEMBERS OF SUCH
SOCIETIES ARE LEFT SUBJECT TO THE CONTROL OF EACH STATE.  THEY BECOME
UNPREDICTABLE AND ALMOST INEVITABLY UNEQUAL. 

THE PRINCIPAL OFFICE OF THIS SOCIETY HAS BEEN CONTINUOUSLY IN
COLUMBUS, OHIO.  THE SOCIETY HAS ESTABLISHED SUBORDINATE COUNCILS IN
MANY STATES AND, AT ALL TIMES INVOLVED IN THIS CASE, HAS BEEN LICENSED
TO DO BUSINESS IN SOUTH DAKOTA AS A FOREIGN FRATERNAL BENEFIT SOCIETY. 
FN11  IN ACCORDANCE WITH THE REQUIREMENTS FOR MAINTAINING SUCH LICENSE
IN GOOD STANDING, THE SOCIETY HAS KEPT ON FILE, WITH THE COMMISSIONER
OF INSURANCE OF SOUTH DAKOTA, A COPY OF THE SOCIETY'S CONSTITUTION,
INCLUDING SEC. 11 OF ARTICLE IV, HERE IN CONTROVERSY, LIMITING THE TIME
FOR BRINGING SUITS TO RECOVER CLAIMS FOR BENEFITS BASED UPON THAT
ARTICLE.  THE STATE OF THE FORUM THUS HAS BEEN CONTINUOUSLY IN A
POSITION TO REVOKE OR REFUSE TO RENEW THE SOCIETY'S LICENSE TO DO
BUSINESS IN THAT STATE IF IT HAD GOOD REASON TO DO SO.  THERE IS NO
EVIDENCE THAT SOUTH DAKOTA HAS ATTEMPTED OR SUGGESTED SUCH ACTION.  THE
FAVORABLE, RATHER THAN HOSTILE, ATTITUDE OF SOUTH DAKOTA TOWARDS SUCH
SOCIETIES IS EVIDENCED BY ITS OWN AUTHORIZATION OF THEIR INCORPORATION
IN THAT STATE ON TERMS IDENTICAL, WORD FOR WORD, WITH THOSE PRESCRIBED
IN OHIO.  FN12 

THE DECEDENT, ON JULY 31, 1920, APPLIED FOR MEMBERSHIP IN THE SOCIETY
THROUGH RAPID CITY COUNCIL NO. 516, IN RAPID CITY, SOUTH DAKOTA.  HE
WAS 37 YEARS OLD, A MANAGER AND SALESMAN SELLING "PACKING PRODUCTS" ON
THE ROAD, IN GOOD PHYSICAL CONDITION AND EMPLOYED IN AN OCCUPATION OF
PRECISELY THE TYPE CONTEMPLATED FOR MEMBERSHIP IN THIS SOCIETY.  FN13
HE NAMED HIS WIFE AS HIS BENEFICIARY IN CASE OF HIS DEATH FROM
ACCIDENTAL MEANS.  ON AUGUST 19, 1920, HE WAS ACCEPTED BY THE SUPREME
COUNCIL AS AN INSURED MEMBER OF THE SOCIETY UNDER "CLASS A."  THE
CERTIFICATE, NO. 169655, EVIDENCING THIS ACCEPTANCE WAS EXECUTED AT
COLUMBUS, OHIO, BY THE SUPREME COUNSELOR AND SUPREME SECRETARY.  IN
1922, FOLLOWING A BRIEF SUSPENSION, HE APPLIED FOR REINSTATEMENT IN
WHAT WAS THEN BLACK HILLS COUNCIL NO. 516 IN RAPID CITY, SOUTH DAKOTA,
AND, ON DECEMBER 21, 1922, WAS REINSTATED AS AN INSURED MEMBER OF THE
SOCIETY UNDER "CLASS A."  IN HIS APPLICATION FOR THIS RENEWAL, HE
REFERRED TO HIMSELF AS A TRAVELING SALESMAN, SELLING MEAT TO DEALERS,
AND NAMED HIS MOTHER, ELIZABETH SHANE OF MT. VERNON, SOUTH DAKOTA, AS
HIS BENEFICIARY.  FN14  THEREAFTER, HE REMAINED IN GOOD STANDING AND IT
IS UPON HIS MEMBERSHIP, EVIDENCED BY THIS CERTIFICATE, ALSO EXECUTED IN
OHIO, THAT THIS ACTION DEPENDS.  ON MAY 8, 1931, HE VISITED A
PHYSICIAN'S OFFICE IN RAPID CITY, SOUTH DAKOTA, TO BE EXAMINED FOR
STRICTURE.  THE DOCTOR APPLIED A LOCAL ANESTHETIC PRELIMINARY TO
INTRODUCING AN INSTRUMENT KNOWN AS A "SOUND" FOR EXPLORATORY PURPOSES. 
THE LOCAL ANESTHETIC WAS A DRUG KNOWN AS "BUTYN."  THE RECORD SHOWS
THAT BUTYN COMMONLY WAS USED BY PHYSICIANS FOR SUCH A PURPOSE; THAT IT
WAS PROPERLY ADMINISTERED IN THE USUAL AND PROPER AMOUNT AND WAS OF THE
USUAL AND PROPER STRENGTH; BUT THAT THE DECEDENT, UNKNOWN TO ANYONE,
WAS SUBJECT TO A RARE IDIOSYNCRASY, AS A RESULT OF THE PRESENCE OF
WHICH HE SUFFERED CONVULSIONS IMMEDIATELY FOLLOWING THE ADMINISTRATION
OF THE ANESTHETIC AND DIED WITHIN TWO MINUTES. 

IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN THE CONSTITUTION OF
THE SOCIETY, THE DECEDENT'S BENEFICIARY PROMPTLY MAILED TO THE SOCIETY
A NOTICE OF HER SON'S DEATH.  ON JUNE 8, 1931, THE SUPREME EXECUTIVE
COMMITTEE, IN COLUMBUS, OHIO, REVIEWED AND DISALLOWED HER CLAIM ON ITS
MERITS AND MAILED TO HER NOTICE OF SUCH ACTION.  ON JUNE 16, SHE FILED
A COMPLAINT AGAINST THE SOCIETY IN A CIRCUIT COURT FOR THE STATE OF
SOUTH DAKOTA TO RECOVER DEATH BENEFITS, AMOUNTING TO $6,300, CLAIMED
UNDER ARTICLE IV OF THE CONSTITUTION OF THE SOCIETY.  THE CASE WAS
REMOVED TO THE UNITED STATES DISTRICT COURT FOR SOUTH DAKOTA BECAUSE OF
DIVERSITY OF CITIZENSHIP.  ON SEPTEMBER 2 IT WAS TRIED, WITHOUT A JURY,
AND, ON DECEMBER 15, 1931, JUDGMENT WAS RENDERED FOR THE MOTHER WITH
FINDINGS OF FACT AND CONCLUSIONS OF LAW DEALING WITH THE MERITS OF THE
CASE.  THIS JUDGMENT, ON FEBRUARY 27, 1933, WAS REVERSED, ON ITS
MERITS, BY THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT AND JUDGMENT FOR COSTS WAS ENTERED AGAINST ELIZABETH SHANE.  64
F.2D 55.  FN15 UPON REMAND OF THE CASE TO IT, THE DISTRICT COURT, ON
APRIL 18, 1933, ORDERED "THAT THE JUDGMENT OF THE UNITED STATES CIRCUIT
COURT OF APPEALS IN THIS MATTER BE MADE THE JUDGMENT OF THIS COURT, AND
THAT ALL COSTS OF THIS COURT RELATING TO SUCH MANDATE AND JUDGMENT, BE
TAXED AND ALLOWED THE DEFENDANT."  (UNREPORTED.)  THUS, WITHIN LESS
THAN TWO YEARS, THE CASE HAD BEEN COMPLETELY PRESENTED AND HEARD BY THE
DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS AND DISPOSED OF, ON ITS
MERITS, IN FAVOR OF THE SOCIETY, WITH FULL RECOGNITION OF THE DIVERSITY
OF CITIZENSHIP OF THE PARTIES AND IN COMPLIANCE WITH THE TIME LIMITS
PRESCRIBED BY THE CONSTITUTION OF THE SOCIETY. 

THE PRESENT PROCEEDING, HOWEVER, RESULTED FROM THE FACT THAT,
PURSUANT TO STIPULATION OF THE PARTIES, THE DISTRICT COURT, ON JANUARY
18, 1934, DISMISSED THE CASE WITHOUT PREJUDICE TO THE FILING OF ANOTHER
SUIT.  ON JUNE 15, 1934, THE DECEDENT'S MOTHER ASSIGNED HER CLAIM TO
EDWARD C. WOLFE, THE PRESENT RESPONDENT, A CITIZEN OF OHIO, AS TRUSTEE,
TO ENFORCE COLLECTION OF THE CLAIM.  ON THE SAME DAY, THE PRESENT
ACTION WAS FILED IN A CIRCUIT COURT OF THE STATE OF SOUTH DAKOTA.  AN
ANSWER WAS ENTERED AND A STIPULATION WAS MADE TO USE THE TESTIMONY
WHICH HAD BEEN TAKEN IN THE DISTRICT COURT IN THE PREVIOUS CASE.  THERE
THE CASE RESTED FOR SIX YEARS.  ON OCTOBER 19, 1940, AN AMENDED ANSWER
WAS FILED RAISING, AMONG OTHERS, THE DEFENSE THAT THIS SECOND ACTION
WAS IN VIOLATION OF THE FOLLOWING SECTION OF THE CONSTITUTION OF THE
SOCIETY:

                     "ARTICLE IV.  INSURANCE. 

     .        .         .         .         .

         WAIVERS. 

"SEC. 11.  NO SUIT OR PROCEEDING, EITHER AT LAW OR IN EQUITY, SHALL
BE BROUGHT TO RECOVER ANY BENEFITS UNDER THIS ARTICLE AFTER SIX (6)
MONTHS FROM THE DATE THE CLAIM FOR SAID BENEFITS IS DISALLOWED BY THE
SUPREME EXECUTIVE COMMITTEE. 

"NO GRAND OR SUBORDINATE COUNCIL, OFFICER, MEMBER OR AGENT OF ANY
SUBORDINATE, GRAND, OR THE SUPREME COUNCIL OF THE ORDER IS AUTHORIZED
OR PERMITTED TO WAIVE ANY OF THE PROVISIONS OF THE CONSTITUTION OF THIS
ORDER, RELATING TO INSURANCE, AS THE SAME ARE NOW IN FORCE OR MAY BE
HEREAFTER ENACTED." 

IT IS NOT DISPUTED THAT SUCH PROVISION HAS BEEN IN SUCH CONSTITUTION
SINCE BEFORE THE DECEDENT'S FIRST APPLICATION FOR MEMBERSHIP IN THE
SOCIETY, AND THAT IT WAS PRINTED IN FULL ON THE BACK OF THE CERTIFICATE
OF MEMBERSHIP ORIGINALLY ISSUED TO THE DECEDENT.  IT FURTHER WAS
ALLEGED THAT THIS PROVISION WAS VALID AND BINDING UPON THE MEMBERS OF
THE SOCIETY BY AND UNDER THE LAWS OF OHIO; THAT THE HIGHEST COURT OF
THAT STATE HAD HELD THAT A FRATERNAL BENEFIT SOCIETY, BY ITS
CONSTITUTION AND BY-LAWS, COULD LIMIT THE TIME WITHIN WHICH SUIT MUST
BE BROUGHT TO RECOVER FOR BENEFITS PROMISED TO MEMBERS; AND THAT TO
DENY THE BINDING EFFECT OF THAT LIMITATION ON THE PLAINTIFF IN SUCH
SUIT WOULD BE A VIOLATION OF THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION OF THE UNITED STATES (ART. IV, SEC. 1), AND A VIOLATION OF
THE SOCIETY'S RIGHTS THEREUNDER.  WE DECIDE THAT ISSUE HERE IN FAVOR OF
THE SOCIETY.  NO CLAIM IS MADE HERE THAT THE SOCIETY IS BARRED FROM
THIS DEFENSE BY ANY WAIVER PURPORTING TO HAVE BEEN MADE ON ITS BEHALF
IN CONNECTION WITH THE DISMISSAL OF THE EARLIER ACTION WITHOUT
PREJUDICE TO FILING ANOTHER.  SEE RIDDLESBARGER V. HARTFORD INS. CO., 7
WALL.  386.  IN THIS VIEW OF THE CASE, IT IS NOT NECESSARY TO CONSIDER
THE OTHER DEFENSES. 

IN 1942, THE CASE WAS PRESENTED BEFORE A JUDGE OF A CIRCUIT COURT OF
THE STATE OF SOUTH DAKOTA.  UPON THE DEATH OF THAT JUDGE BEFORE A
DECISION IN THE CASE, IT WAS HEARD, IN 1943, BY ANOTHER JUDGE OF THAT
COURT, LARGELY UPON THE RECORD MADE, IN 1931, IN THE UNITED STATES
DISTRICT COURT.  THE STATE COURT, ON APRIL 4, 1944, ENTERED JUDGMENT IN
FAVOR OF THE CLAIMANT, RESPONDENT HEREIN.  IN 1945, THE SUPREME COURT
OF THE STATE OF SOUTH DAKOTA, BY A DIVIDED COURT, AFFIRMED THAT
JUDGMENT.  70 S.D. 452, 18 N.W.2D 755.  BECAUSE OF THE CONSTITUTIONAL
ISSUE PRESENTED AND ITS RELATION TO PREVIOUS DECISIONS OF THIS COURT,
WE GRANTED CERTIORARI.  326 U.S. 712.  THE CASE WAS ARGUED HERE
FEBRUARY 28, 1946.  LATER IT WAS RESTORED TO THE DOCKET, ASSIGNED FOR
REARGUMENT BEFORE A FULL BENCH AND REARGUED HERE NOVEMBER 12, 1946. 
THIS IS A CLEAR-CUT CASE OF A CLAIM BASED SOLELY UPON MEMBERSHIP RIGHTS
AND OBLIGATIONS CONTAINED IN THE CONSTITUTION OF AN INCORPORATED
FRATERNAL BENEFIT SOCIETY, THE TERMS OF WHICH ARE SUBJECT TO AMENDMENT
THROUGH THE PROCESSES OF A REPRESENTATIVE FORM OF GOVERNMENT AUTHORIZED
BY THE LAW OF THE STATE OF INCORPORATION.  THERE IS NO EVIDENCE IN THE
RECORDS OF THE THREE TRIALS, NO SUGGESTION IN THE OPINIONS OF THE LOWER
COURTS, AND NO CLAIM IN THE ARGUMENTS HERE THAT THE DECEDENT WAS NOT A
BONA FIDE ACTIVE MEMBER OF THE SOCIETY, OR THAT THE SOCIETY WAS ACTING
OTHERWISE THAN AS A FRATERNAL BENEFIT SOCIETY.  THIS CASE, THEREFORE,
IS TO BE DISTINGUISHED FROM A CLAIM FOR DEATH BENEFITS UNDER AN
ORDINARY CONTRACT OF ACCIDENT INSURANCE, WHETHER ISSUED BY A STOCK OR A
MUTUAL INSURANCE COMPANY. 

WE RELY UPON THE CHARACTER OF THE MEMBERSHIP OBLIGATION SUED UPON. 
THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT A CONTENTION THAT THE CONTRACT
OF MEMBERSHIP, INCLUDING ALL INSURANCE RIGHTS, WAS MADE IN OHIO AND
THAT MANY ACTS IN CONNECTION WITH THE CONTRACT WERE REQUIRED TO BE
PERFORMED IN OHIO AND WERE SO PERFORMED.  HOWEVER, WE DO NOT RELY UPON
THE PLACE OF CONCLUDING THE CONTRACT OF MEMBERSHIP OR UPON THE PLACE
PRESCRIBED FOR ITS PERFORMANCE.  WE RELY, RATHER, UPON ITS CHARACTER AS
SOMETHING CREATED, REGULATED AND SUBJECT TO CHANGE THROUGH A FRATERNAL
AND REPRESENTATIVE FORM OF INTRA-CORPORATE GOVERNMENT, DEPENDENT FOR
ITS TERMS, CONTINUITY AND UNITY UPON PUBLIC ACTS OF OHIO CREATING AND
REGULATING FRATERNAL BENEFIT SOCIETIES. 

ALTHOUGH THE RESPONDENT, SUING AS AN OHIO CITIZEN, HAS ELIMINATED THE
SOUTH DAKOTA CITIZENSHIP OF THE ORIGINAL BENEFICIARY AS A
JURISDICTIONAL FACTOR IN THIS CASE, WE DO NOT HOLD THAT, FOR THAT
REASON, HE MAY NOT URGE THE COURTS TO CONSIDER THE CONTINUOUS SOUTH
DAKOTA RESIDENCE AND CITIZENSHIP OF THE DECEDENT AND OF THE NAMED
BENEFICIARY IN DETERMINING WHETHER THE PUBLIC POLICY OF SOUTH DAKOTA
SHOULD YIELD TO THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION OF
THE UNITED STATES IN GIVING RECOGNITION TO THE CHARTER RIGHTS AND
OBLIGATIONS OF THE SOCIETY AS AN OHIO CORPORATION. 

IN ORDER, HOWEVER, TO APPRECIATE THE NATURE OF THE OBLIGATION HERE
RELIED UPON, IT IS ESSENTIAL TO SEE HOW COMPLETELY ITS TERMS ARE
INTERWOVEN WITH THE ENABLING LEGISLATION AUTHORIZING THE CORPORATE
CHARTER AND WITH THE CONSTITUTION AND BY-LAWS OF THE SOCIETY, AS WELL
AS WITH THE MEMBER'S APPLICATION FOR AND HIS CERTIFICATE OF MEMBERSHIP
IN SUCH SOCIETY. 

THE ENABLING LEGISLATION, CORPORATE CHARTER AND CERTIFICATE OF
MEMBERSHIP HAVE BEEN DESCRIBED.  THE APPLICATION FOR MEMBERSHIP
CONTRIBUTES NOTHING FURTHER TO THE ISSUE EXCEPT TO EMPHASIZE THE
INTEGRATION WHICH IT DEMONSTRATES BETWEEN THE MEMBER AND THE ARTICLES
OF INCORPORATION, CONSTITUTION AND BY-LAWS OF HIS SOCIETY.  THERE WAS
NO APPLICATION FOR INSURANCE SEPARATE FROM THE APPLICATION FOR
MEMBERSHIP.  BENEFITS DERIVED FROM MEMBERSHIP FLOWED SOLELY FROM THE
DECEDENT'S MEMBERSHIP STATUS. 

THERE REMAIN TO BE CONSIDERED THE CONSTITUTION AND BY-LAWS OF THE
SOCIETY.  THESE SET FORTH THE MAIN BODY OF THE MEMBER'S RIGHTS AND
OBLIGATIONS, INCLUDING THOSE OF A FRATERNAL AND PROCEDURAL NATURE AS
WELL AS THOSE RELATING TO FINANCIAL BENEFITS AND LIABILITIES.  THE
PRINCIPAL PART OF THE RECORD CONSISTS OF PRINTED COPIES OF THE CHARTER,
CONSTITUTION AND BY-LAWS OF THE SOCIETY, ONE AS GENERALLY EFFECTIVE
SEPTEMBER 1, 1922, AND THE OTHER AS EFFECTIVE SEPTEMBER 1, 1930.  A
COMPARISON OF THESE COPIES SHOWS THAT MANY CHANGES WERE MADE IN THE
RIGHTS AND OBLIGATIONS OF MEMBERS DURING THE DECEDENT'S MEMBERSHIP IN
THE SOCIETY.  FN16 

THE 1930 CONSTITUTION, IN PAMPHLET FORM, FILLED 90 CLOSELY PRINTED
PAGES.  ITS SUBJECT MATTER IS OUTLINED IN THE MARGIN.  FN17  IT IS
OBVIOUS HOW VITAL THESE TERMS, BOTH IN DETAIL AND AS A WHOLE, WERE TO
EACH MEMBER.  THE BY-LAWS FILLED SIX PAGES.  THEY CONSISTED OF 29
PARAGRAPHS DEALING WITH THE CONDUCT OF MEETINGS OF THE SUBORDINATE (OR
LOCAL) COUNCILS, GRAND (OR REGIONAL) COUNCILS AND THE SUPREME (NATIONAL
OR INTERNATIONAL) COUNCIL.  UNDER SUCH A CONSTITUTION IT IS IMPOSSIBLE
TO SEPARATE THE MEMBER'S INSURANCE RIGHTS AND OBLIGATIONS FROM HIS
OTHER RIGHTS AND OBLIGATIONS.  WHILE THE STATUTE AUTHORIZING THE
INCORPORATION OF FRATERNAL BENEFIT SOCIETIES CALLS FOR "A LODGE SYSTEM
WITH RITUALISTIC FORM OF WORK" AND THIS IS A NATURAL EXPRESSION OF A
CLOSE COMMUNITY OF INTEREST AMONG MEMBERS OF A FRATERNAL BENEFIT
SOCIETY, YET IT IS NOT THE FORMALITY OF ANY RITUAL THAT IS OF PRIMARY
SIGNIFICANCE FROM THE LEGAL POINT OF VIEW IN THIS CASE.  THE MORE
CRITICAL FACTORS ARE THAT THE SOCIETY IS A VOLUNTARY FRATERNAL
ASSOCIATION "ORGANIZED AND CARRIED ON SOLELY FOR THE MUTUAL BENEFIT OF
ITS MEMBERS AND THEIR BENEFICIARIES, AND NOT FOR PROFIT, AND HAVING A
...  REPRESENTATIVE FORM OF GOVERNMENT, AND WHICH SHALL MAKE PROVISION
FOR THE PAYMENT OF BENEFITS" IN ACCORDANCE WITH CERTAIN STATUTORY
REQUIREMENTS.  FN18  HISTORICALLY, MANY GROUPS OF PEOPLE HAVE BEEN
DRAWN TOGETHER NATURALLY INTO FRATERNAL ORGANIZATIONS FOR SOCIAL AND
ECONOMIC REASONS.  SOME OF THESE HAVE DEVELOPED INTO THOSE FORMS OF
FRATERNAL BENEFIT SOCIETIES NOW OFFICIALLY RECOGNIZED BY MANY STATES. 
THE RELATIONSHIPS BETWEEN THE MEMBERS OF SUCH SOCIETIES ARE CONTRACTUAL
IN THAT THEY ARE VOLUNTARILY UNDERTAKEN IN CONSIDERATION OF THE LIKE
OBLIGATIONS OF OTHERS.  HOWEVER, INTERWOVEN WITH THEIR FINANCIAL RIGHTS
AND OBLIGATIONS, THEY HAVE OTHER COMMON INTERESTS INCIDENTAL TO THEIR
MEMBERSHIPS, WHICH GIVE THEM A STATUS TOWARD ONE ANOTHER THAT INVOLVES
MORE MUTUALITY OF INTEREST AND MORE INTERDEPENDENCE THAN ARISES FROM
PURELY BUSINESS AND FINANCIAL RELATIONSHIPS.  THIS CREATES - 

"THE INDIVISIBLE UNITY BETWEEN THE MEMBERS OF A CORPORATION OF THIS
KIND IN RESPECT OF THE FUND FROM WHICH THEIR RIGHTS ARE TO BE ENFORCED
AND THE CONSEQUENCE THAT THEIR RIGHTS MUST BE DETERMINED BY A SINGLE
LAW,  ...  THE ACT OF BECOMING A MEMBER IS SOMETHING MORE THAN A
CONTRACT, IT IS ENTERING INTO A COMPLEX AND ABIDING RELATION, AND AS
MARRIAGE LOOKS TO DOMICIL, MEMBERSHIP LOOKS TO AND MUST BE GOVERNED BY
THE LAW OF THE STATE GRANTING THE INCORPORATION N19." 

THE RELATIONSHIP THUS ESTABLISHED BETWEEN A MEMBER AND HIS FRATERNAL
BENEFIT SOCIETY DIFFERS FROM THE ORDINARY CONTRACTUAL RELATIONSHIP
BETWEEN A POLICYHOLDER AND A SEPARATELY OWNED CORPORATE OR "STOCK"
INSURANCE COMPANY.  IT DIFFERS ALSO FROM THAT BETWEEN AN INSURED MEMBER
OF THE USUAL BUSINESS FORM OF A MUTUAL INSURANCE COMPANY AND THAT
COMPANY.  THE FACT OF MEMBERSHIP IN THE OHIO FRATERNAL BENEFIT SOCIETY
IS THE CONTROLLING AND CENTRAL FEATURE OF THE RELATIONSHIP.  AS LONG AS
HE REMAINS A MEMBER, THE TERMS OF HIS MEMBERSHIP, INCLUDING OBLIGATIONS
AND BENEFITS RELATING TO THE INSURANCE FUNDS OF THE SOCIETY, ARE
SUBJECT TO CHANGE WITHOUT HIS INDIVIDUAL CONSENT.  THE CONTROL OVER
THOSE TERMS IS VESTED BY HIM AND HIS FELLOW MEMBERS IN THE ELECTED
REPRESENTATIVE GOVERNMENT OF THEIR SOCIETY AS AUTHORIZED AND REGULATED
BY THE LAW OF OHIO.  UPON THAT LAW THE CONTINUED EXISTENCE OF THE
SOCIETY DEPENDS.  THE FOUNDATION OF THE SOCIETY IS THE LAW OF OHIO.  IT
PROVIDES THE UNIFYING CONTROL OVER THE RIGHTS AND OBLIGATIONS OF ITS
MEMBERS.  SOVEREIGN CAMP V. BOLIN, 305 U.S. 66, 75, DISCUSSED INFRA. 
IT IS THIS DEPENDENCE OF MEMBERSHIP RIGHTS UPON THE PUBLIC ACTS OF THE
DOMICILIARY STATE, SUPPORTED BY THE REQUIREMENT THAT FULL FAITH AND
CREDIT SHALL BE GIVEN IN EACH STATE TO THOSE PUBLIC ACTS, THAT HAS BEEN
RECOGNIZED BY THIS COURT IN THE UNBROKEN LINE OF DECISIONS REVIEWED IN
THIS OPINION. 

THE DECISIONS PASSING UPON THIS COMPARATIVELY NARROW ISSUE ARE TO BE
DISTINGUISHED FROM THOSE WHICH DEAL ONLY WITH 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 SEC. 603(1934).  IT IS TO THAT GENERAL
PRINCIPLE THAT SUCH EARLY CASES AS HAWKINS V. BARNEY'S LESSEE, 5 PET.
457, AND M'ELMOYLE V. COHEN, 13 PET. 312, HAVE REFERENCE.  THE
DECISIONS HERE REVIEWED ARE TO BE DISTINGUISHED, LIKEWISE, FROM THOSE
SUPPORTING THE CONVERSE GENERAL PRINCIPLE THAT "IF ACTION IS NOT BARRED
BY THE STATUTE OF LIMITATIONS OF THE FORUM, AN ACTION CAN BE
MAINTAINED, THOUGH ACTION IS BARRED IN THE STATE WHERE THE CAUSE OF
ACTION AROSE."  RESTATEMENT, CONFLICT OF LAWS SEC. 604(1934).  NEITHER
OF THESE GENERAL STATEMENTS IS HERE QUESTIONED.  AN OBVIOUS NEED FOR
MODIFICATION OF THE LATTER STATEMENT, HOWEVER, HAS LED MANY STATES TO
PLACE A LIMITATION UPON IT THROUGH THE ADOPTION OF THE SO-CALLED
"BORROWING STATUTES" OF LIMITATIONS.  THE RESULT IS THAT TODAY
"STATUTES FREQUENTLY PROVIDE THAT AN ACTION MAY NOT BE MAINTAINED IF IT
HAS BEEN BARRED BY THE STATUTE OF LIMITATIONS AT THE PLACE WHERE THE
ACTION ACCRUED OR, IN SOME CASES, AT THE DOMICIL OF THE DEFENDANT." 
ID. SEC. 604, COMMENT B. THESE NUMEROUS "BORROWING STATUTES"
DEMONSTRATE THE GENERAL RECOGNITION OF THE SOUND PUBLIC POLICY OF
LIMITING, UNDER SOME CIRCUMSTANCES, THE APPLICATION OF THE GENERAL
STATUTE OF LIMITATIONS OF THE STATE OF THE FORUM.  THE FULL FAITH AND
CREDIT CLAUSE APPLIED, AS IN THE PRESENT CASE, IS BUT ANOTHER
LIMITATION VOLUNTARILY IMPOSED, BY THE PEOPLE OF THE UNITED STATES,
UPON THE SOVEREIGNTY OF THEIR RESPECTIVE STATES IN APPLYING THE LAW OF
THE FORUM.  SEE BRODERICK V. ROSNER, 294 U.S. 629, 643, AND MILWAUKEE
COUNTY V. WHITE CO., 296 U.S. 268, 276-277, DISCUSSED INFRA. 

EVEN WITHOUT THE COMPELLING FORCE OF STATUTORY OR CONSTITUTIONAL
PROVISIONS, THE COURTS HAVE RECOGNIZED OTHER RESTRICTIONS ON THE LAW OF
THE FORUM.  FOR EXAMPLE, IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF
A CONTROLLING STATUTE TO THE CONTRARY, A PROVISION IN A CONTRACT MAY
VALIDLY LIMIT, BETWEEN THE PARTIES, THE TIME FOR BRINGING AN ACTION ON
SUCH CONTRACT TO A PERIOD LESS THAN THAT PRESCRIBED IN THE GENERAL
STATUTE OF LIMITATIONS, PROVIDED THAT THE SHORTER PERIOD ITSELF SHALL
BE A REASONABLE PERIOD.  FN20  SUCH SHORTER PERIODS, WRITTEN INTO
PRIVATE CONTRACTS, ALSO HAVE BEEN HELD TO BE ENTITLED TO THE
CONSTITUTIONAL PROTECTION OF THE FOURTEENTH AMENDMENT UNDER APPROPRIATE
CIRCUMSTANCES.  SEE HOME INS. CO. V. DICK, 281 U.S. 397, AND HARTFORD
ACCIDENT & INDEMNITY CO. V. DELTA & PINE LAND CO., 292 U.S. 143,
MENTIONED AGAIN INFRA. 

THE INSTANT CASE PRESENTS ADDITIONAL FACTS WHICH DISTINGUISH IT FROM
THE CASES GOVERNED BY THE FOREGOING GENERAL RULES.  THE PRINCIPAL
DISTINGUISHING FEATURE OF THIS CASE IS THE MEMBERSHIP OF THE DECEDENT
IN THE OHIO FRATERNAL BENEFIT SOCIETY, WHICH SOUTH DAKOTA MADE
AVAILABLE TO HIM THROUGH THE LICENSE ISSUED TO IT TO DO BUSINESS IN
SOUTH DAKOTA.  EVEN CONCEDING, FOR PURPOSES OF ARGUMENT, THAT THE
DECEDENT'S MEMBERSHIP CONTRACT WAS ENTERED INTO IN SOUTH DAKOTA, RATHER
THAN WHERE IT WAS ACCEPTED AT THE SOCIETY'S HOME OFFICE IN OHIO, IT IS
THE CHARACTER OF THAT FRATERNAL BENEFIT MEMBERSHIP, CREATED AND DEFINED
BY THE LAWS OF OHIO AND FOSTERED BY THE FRATERNAL BENEFIT LAWS OF SOUTH
DAKOTA, THAT IS AT ISSUE.  CONCEDING FURTHER THAT, AS INTERPRETED IN
THIS CASE BY THE SUPREME COURT OF SOUTH DAKOTA, THE PROVISION OF SEC.
897 OF THE SOUTH DAKOTA CODE (QUOTED NEAR THE BEGINNING OF THIS
OPINION), GENERALLY OUTLAWING CONTRACTUAL TIME LIMITS ON THE
ENFORCEMENT OF CONTRACTUAL RIGHTS BY LEGAL PROCEEDINGS, IS AN ATTEMPT
TO MAKE VOID THE TIME LIMIT INCLUDED IN SEC. 11 OF ARTICLE IV OF THE
CONSTITUTION OF THIS OHIO FRATERNAL BENEFIT SOCIETY, WE THEN ARE
BROUGHT FACE TO FACE WITH THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION OF THE UNITED STATES.  IT IS HERE THAT WE REACH THE LINE
OF DECISIONS OF THIS COURT, EXTENDING FROM ROYAL ARCANUM V. GREEN, 237
U.S. 531, TO PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S. 201, 207-208, 210
211, DISCUSSED INFRA.  THESE DECISIONS ARE DIRECTLY IN POINT.  WITHOUT
QUESTIONING THIS COURT'S RECOGNITION OF THE COMMON LAW PRINCIPLE OF
CONFLICT OF LAWS AS TO THE CONTROL BY EACH STATE OVER THE APPLICATION
OF ITS OWN STATUTES OF LIMITATIONS, THIS LINE OF DECISIONS DEMONSTRATES
THIS COURT'S SIMULTANEOUS RECOGNITION OF THE NECESSARY SCOPE OF THE
FULL FAITH AND CREDIT CLAUSE IN THIS FIELD.  THESE CASES UNWAVERINGLY
SAFEGUARD, IN EACH STATE, THE EFFECTIVENESS OF THE PUBLIC ACTS OF EVERY
OTHER STATE AS EXPRESSED IN THE RIGHTS AND OBLIGATIONS OF MEMBERS OF
FRATERNAL BENEFIT SOCIETIES.  SUCH SOCIETIES EXIST BY VIRTUE OF SUCH
STATE LEGISLATION, AND THE RIGHTS AND OBLIGATIONS INCIDENT TO
MEMBERSHIP THEREIN ARE AS MUCH ENTITLED TO FULL FAITH AND CREDIT AS THE
STATUTES UPON WHICH THEY DEPEND. 

THE RESPONDENT'S CLAIM TO BENEFITS IS BASED UPON ITEM (12) OF SEC. 4
OF ARTICLE IV OF THIS CONSTITUTION WHICH SPECIFIES THE DEATH BENEFITS
DERIVED FROM THE MEMBERSHIP OF "CLASS A" MEMBERS.  THE PROHIBITION
LIMITING THE TIME FOR SUING ON THIS CLAIM, WHICH IS RELIED UPON AS THE
DEFENSE OF THE SOCIETY, APPEARS AS SEC. 11 OF THE SAME ARTICLE IV.
SOCIETY NO LESS THAN DOES SEC. 4.  THE LIMITATION, RESULTING FROM SEC.
4, ON THE AMOUNT OF THE BENEFIT TO BE PAID TO BENEFICIARIES AND THE
LIMITATION, RESULTING FROM SEC. 11, ON THE TIME WHEN LITIGATION MAY BE
BROUGHT BY BENEFICIARIES, ARE OF COMPARABLE CHARACTER.  TO PERMIT
RECOVERY HERE WOULD BE TO PERMIT RECOVERY ON A SPECIAL AND UNAUTHORIZED
TYPE OF MEMBERSHIP MORE FAVORABLE TO DECEDENT THAN WAS AVAILABLE TO
OTHER MEMBERS.  THIS WOULD FAIL TO GIVE FULL FAITH AND CREDIT TO THE
TERMS OF MEMBERSHIP AUTHORIZED BY OHIO BY PLACING AN ADDITIONAL
LIABILITY ON THE SOCIETY BEYOND THAT AUTHORIZED BY OHIO OR ACCEPTED BY
THE SOCIETY. 

UNDERLYING THE DEFENSE OF THE SOCIETY IS THE REQUIREMENT THAT SEC. 11
BE VALID UNDER THE LAW OF OHIO AS THE STATE OF INCORPORATION.  SUCH
VALIDITY WAS ADMITTED BY THE SUPREME COURT OF SOUTH DAKOTA IN ITS
OPINION BELOW.  70 S.D. 452, 18 N.W.2D 755, 756.  "THE PARTIES TO A
CONTRACT OF INSURANCE MAY, BY A PROVISION INSERTED IN THE POLICY,
LAWFULLY LIMIT THE TIME WITHIN WHICH SUIT MAY BE BROUGHT THEREON,
PROVIDED THE PERIOD OF LIMITATION FIXED BE NOT UNREASONABLE."  APPEL V.
COOPER INS. CO., 76 OHIO ST. 52(SYLLABUS, NO. 1, BY THE COURT), 80 N.E.
955.  THE COURT THERE ENFORCED A CLAUSE IN A FIRE INSURANCE POLICY
PROVIDING THAT NO ACTION FOR RECOVERY OF ANY CLAIM SHALL BE SUSTAINABLE
IN ANY COURT UNLESS COMMENCED WITHIN SIX MONTHS AFTER THE FIRE ITSELF,
EVEN THOUGH SUCH ACTIONS WERE PROHIBITED DURING MOST OF THE FIRST THREE
OF THOSE SIX MONTHS.  IN BARTLEY V. NATIONAL BUSINESS MEN'S ASSN., 109
OHIO ST. 585, 143 N.E. 386, THE SUPREME COURT OF OHIO APPROVED THE
APPEL CASE AND APPLIED IT TO A TWO-YEAR CONTRACTUAL LIMITATION FOR
SUING AN OHIO MUTUAL PROTECTIVE ASSOCIATION ON A CLAIM FOR ACCIDENTAL
DEATH.  SEE ALSO:  MODERN WOODMEN V. MYERS, 99 OHIO ST. 87, 124 N.E.
48, UPHOLDING A STRICT ADHERENCE TO LIMITATIONS STATED IN THE BY-LAWS
OF FRATERNAL BENEFIT SOCIETIES; PORTAGE COUNTY MUTUAL FIRE INS. CO. V.
WEST, 6 OHIO ST. 599, EMPHASIZING THE REASONABLENESS OF SHORT PERIODS
FOR COMMENCING SUITS ON CLAIMS AGAINST MUTUAL COMPANIES; YOUNG V. ORDER
OF UNITED COMMERCIAL TRAVELERS, 142 NEB. 566, 7 N.W.2D 81, RECOGNIZING
THE VALIDITY IN OHIO OF THE PRECISE PROVISION OF THE CONSTITUTION OF
THE SOCIETY HERE AT ISSUE, AND SUSTAINING ITS EFFECTIVENESS IN NEBRASKA
BY FORCE OF THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION OF THE
UNITED STATES; AND ROBERTS V. MODERN WOODMEN, 133 MO. APP. 207, 113
S.W. 726, SUSTAINING, IN MISSOURI, A ONE-YEAR LIMITATION IN THE
INSURANCE CONTRACT OF AN ILLINOIS FRATERNAL BENEFIT SOCIETY, IN THE
FACE OF A CONTRARY LOCAL POLICY AS TO MISSOURI CONTRACTS LIMITING THE
TIME WITHIN WHICH SUITS MAY BE INSTITUTED.  SEE ALSO, RIDDLESBARGER V.
HARTFORD INS. CO., 7 WALL.  386. 

STARTING WITH THE RECOGNIZED VALIDITY UNDER THE LAW OF OHIO, OF
ARTICLE IV, SEC. 11 OF THE CONSTITUTION OF THE PETITIONING SOCIETY,
THAT SOCIETY HAS A COMPLETE DEFENSE TO THE PRESENT ACTION UNLESS SUCH
SEC. 11 IS NOT ENFORCIBLE IN THE COURTS OF SOUTH DAKOTA BECAUSE OF A
CONTRARY PUBLIC POLICY OF THAT STATE.  WE EXAMINE FIRST THE CLAIM THAT
SUCH A CONTRARY POLICY EXISTS, AND THEN SHOW WHY, ON THE PRINCIPLES
ESTABLISHED BY THIS COURT, THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION OF THE UNITED STATES REQUIRES THE COURTS OF SOUTH DAKOTA
TO GIVE EFFECT TO THE PUBLIC ACTS OF OHIO AS EXPRESSED IN SUCH SEC.
11. 

THE GENERAL STATUTES OF LIMITATIONS WHICH HAVE BEEN IN EFFECT IN
SOUTH DAKOTA THROUGHOUT THE PERIOD INVOLVED IN THIS CASE HAVE
PRESCRIBED LIMITS VARYING FROM 20 YEARS TO ONE YEAR ACCORDING TO THE
SUBJECT OF THE ACTION.  FN21 "AN ACTION UPON A CONTRACT, OBLIGATION OR
LIABILITY, EXPRESS OR IMPLIED," WAS REQUIRED TO BE COMMENCED WITHIN SIX
YEARS.  FN22  ON THE OTHER HAND THE STATE REQUIRED THE INSERTION IN
EVERY HEALTH OR ACCIDENT POLICY ISSUED IN THE STATE, A STANDARD
CONTRACTUAL PROVISION LIMITING TO TWO YEARS THE TIME FOR BRINGING AN
ACTION UPON IT.  FN23 THROUGHOUT THIS PERIOD, THE SOUTH DAKOTA
STATUTES, MOREOVER, HAVE EXPRESSED NO HOSTILITY TOWARD DOMESTIC OR
FOREIGN FRATERNAL BENEFIT SOCIETIES.  IN FACT, THEY HAVE PROVIDED FOR
THE INCORPORATION, LICENSING AND SUPERVISION OF SUCH SOCIETIES IN TERMS
CLOSELY COMPARABLE TO THOSE OF THE STATUTES OF OHIO.  FN24 

BOTH THE ALLEGED PROHIBITION BY SOUTH DAKOTA OF SUCH A CONTRACTUAL
LIMITATION AS IS CONTAINED IN SEC. 11 AND THE PUBLIC POLICY OF SOUTH
DAKOTA AGAINST SUCH LIMITATIONS DEPEND ENTIRELY UPON ITS STATUTE
DIRECTED GENERALLY AGAINST CONTRACTUAL LIMITATIONS UPON RIGHTS TO SUE
ON CONTRACTS WHICH IS QUOTED, SUPRA, FROM SEC. 897 OF THE REVISED CODE
OF SOUTH DAKOTA, 1919.  FN25 

THE PUBLIC POLICY SO DECLARED IS NOT DIRECTED SPECIFICALLY AGAINST
FRATERNAL BENEFIT SOCIETIES OR THEIR INSURANCE MEMBERSHIP
REQUIREMENTS.  IN THIS VERY CASE, HOWEVER, THE SUPREME COURT OF SOUTH
DAKOTA, IN ITS DECISION BELOW, EXPRESSLY HELD THAT THIS STATUTE APPLIES
TO AND RENDERS VOID IN SOUTH DAKOTA SEC. 11 OF ARTICLE IV OF THIS
SOCIETY'S CONSTITUTION.  WE THUS ARE CONFRONTED WITH AN INESCAPABLE
ISSUE AS TO THE UNCONSTITUTIONALITY OF AN ATTEMPT, THROUGH THIS
STATUTE, TO DECLARE VOID IN SOUTH DAKOTA A PROVISION OF THE
CONSTITUTION OF AN INCORPORATED FRATERNAL BENEFIT SOCIETY WHICH COMES
WITHIN THE AUTHORIZATION OF A PUBLIC ACT OF THE STATE OF OHIO AND IS
VALID UNDER THE LAWS OF THAT STATE.  THIS IS NOT A NEW ISSUE IN THIS
COURT.  IT FALLS SQUARELY WITHIN A LINE OF DECISIONS CONSISTENTLY
UPHOLDING THE APPLICABILITY OF THE FULL FAITH AND CREDIT CLAUSE IN
SUPPORT OF COMPARABLE PROVISIONS IN THE CONSTITUTION OF SUCH A
SOCIETY. 

IN ROYAL ARCANUM V. GREEN, 237 U.S. 531, MR. CHIEF JUSTICE WHITE,
WRITING ON BEHALF OF A UNANIMOUS COURT, POINTED OUT THAT THE FULL FAITH
AND CREDIT CLAUSE THERE REQUIRED THE STATE OF THE FORUM (NEW YORK) TO
GIVE EFFECT TO A LAW OF THE STATE OF INCORPORATION (MASSACHUSETTS)
PURSUANT TO WHICH A FRATERNAL BENEFIT SOCIETY HAD AMENDED ITS
CONSTITUTION SO AS TO INCREASE THE ASSESSMENT RATE UPON THE COMPLAINING
MEMBERS, ALTHOUGH THE TRIAL COURT HAD FOUND THAT THEIR CONTRACT OF
MEMBERSHIP WAS ENTERED INTO, MADE AND COMPLETED IN THE STATE OF NEW
YORK, AND THAT UNDER THE LAW OF THAT STATE, THE MEMBER WOULD NOT BE
BOUND BY SUCH INCREASE.  206 N.Y. 591, 597, 100 N.E. 411, 412.  IN
TERMS WHICH HAVE NOT BEEN OVERRULED OR MODIFIED BY IT IN LATER
DECISIONS, THIS COURT THERE EXPLAINED WHY THE FULL FAITH AND CREDIT
CLAUSE REQUIRES CONTROLLING EFFECT TO BE GIVEN TO THE LAW OF THE STATE
OF INCORPORATION IN INTERPRETING AND DETERMINING THE ENFORCIBILITY OF
THE RIGHTS AND OBLIGATIONS OF MEMBERS CONTAINED IN THE CONSTITUTION AND
BY-LAWS OF SUCH SOCIETIES.  IT SAID: 

"  ...  , AS THE CHARTER WAS A MASSACHUSETTS CHARTER AND THE
CONSTITUTION AND BY-LAWS WERE A PART THEREOF, ADOPTED IN MASSACHUSETTS,
HAVING NO OTHER SANCTION THAN THE LAWS OF THAT STATE, IT FOLLOWS BY THE
SAME TOKEN THAT THOSE LAWS WERE INTEGRALLY AND NECESSARILY THE
CRITERION TO BE RESORTED TO FOR THE PURPOSE OF ASCERTAINING THE
SIGNIFICANCE OF THE CONSTITUTION AND BY-LAWS.  INDEED, THE ACCURACY OF
THIS CONCLUSION IS IRRESISTIBLY MANIFESTED BY CONSIDERING THE INTRINSIC
RELATION BETWEEN EACH AND ALL THE MEMBERS CONCERNING THEIR DUTY TO PAY
ASSESSMENTS AND THE RESULTING INDIVISIBLE UNITY BETWEEN THEM IN THE
FUND FROM WHICH THEIR RIGHTS WERE TO BE ENJOYED.  THE CONTRADICTION IN
TERMS IS APPARENT WHICH WOULD RISE FROM HOLDING ON THE ONE HAND THAT
THERE WAS A COLLECTIVE AND UNIFIED STANDARD OF DUTY AND OBLIGATION ON
THE PART OF THE MEMBERS THEMSELVES AND THE CORPORATION, AND SAYING ON
THE OTHER HAND THAT THE DUTY OF MEMBERS WAS TO BE TESTED ISOLATEDLY AND
INDIVIDUALLY BY RESORTING NOT TO ONE SOURCE OF AUTHORITY APPLICABLE TO
ALL BUT BY APPLYING MANY DIVERGENT, VARIABLE AND CONFLICTING CRITERIA. 
IN FACT THEIR DESTRUCTIVE EFFECT HAS LONG SINCE BEEN RECOGNIZED. 
GAINES V. SUPREME COUNCIL OF THE ROYAL ARCANUM, 140 FED. REP. 978;
ROYAL ARCANUM V. BRASHEARS, 89 MARYLAND, 624.  AND FROM THIS IT IS
CERTAIN THAT WHEN REDUCED TO THEIR LAST ANALYSIS THE CONTENTIONS RELIED
UPON IN EFFECT DESTROY THE RIGHTS WHICH THEY ARE ADVANCED TO SUPPORT,
SINCE AN ASSESSMENT WHICH WAS ONE THING IN ONE STATE AND ANOTHER IN
ANOTHER, AND A FUND WHICH WAS DISTRIBUTED BY ONE RULE IN ONE STATE AND
BY A DIFFERENT RULE SOMEWHERE ELSE, WOULD IN PRACTICAL EFFECT AMOUNT TO
NO ASSESSMENT AND NO SUBSTANTIAL SUM TO BE DISTRIBUTED.  IT WAS
DOUBTLESS NOT ONLY A RECOGNITION OF THE INHERENT UNSOUNDNESS OF THE
PROPOSITION HERE RELIED UPON, BUT THE MANIFEST IMPOSSIBILITY OF ITS
ENFORCEMENT WHICH HAS LED COURTS OF LAST RESORT OF SO MANY STATES IN
PASSING ON QUESTIONS INVOLVING THE GENERAL AUTHORITY OF FRATERNAL
ASSOCIATIONS AND THEIR DUTIES AS TO SUBJECTS OF A GENERAL CHARACTER
CONCERNING ALL THEIR MEMBERS TO RECOGNIZE THE CHARTER OF THE
CORPORATION AND THE LAWS OF THE STATE UNDER WHICH IT WAS GRANTED AS THE
TEST AND MEASURE TO BE APPLIED."  ID. AT 542-543. 

IN MODERN WOODMEN V. MIXER, 267 U.S. 544, THIS COURT UNANIMOUSLY
FOLLOWED THE SAME REASONING AND MR. JUSTICE HOLMES, IN LANGUAGE
PREVIOUSLY QUOTED SUPRA, EMPHASIZED THE "COMPLEX AND ABIDING RELATION"
OF A MEMBERSHIP IN A FRATERNAL BENEFIT SOCIETY.  HE SAID, "AS MARRIAGE
LOOKS TO DOMICIL, MEMBERSHIP LOOKS TO AND MUST BE GOVERNED BY THE LAW
OF THE STATE GRANTING THE INCORPORATION."  ID. AT 551.  IN THAT CASE,
THE COURT HELD THAT THE FULL FAITH AND CREDIT CLAUSE REQUIRED THE STATE
OF THE FORUM (NEBRASKA) TO GIVE EFFECT TO THE LAW OF THE STATE OF
INCORPORATION (ILLINOIS) PURSUANT TO WHICH A BY-LAW OF THE FRATERNAL
BENEFIT SOCIETY HAD BEEN ENACTED REQUIRING THAT THE CONTINUED ABSENCE
OF ANY MEMBER, ALTHOUGH UNHEARD FROM FOR TEN YEARS, SHOULD NOT GIVE HIS
BENEFICIARY THE RIGHT TO RECOVER DEATH BENEFITS UNTIL THE FULL TERM OF
THE MEMBER'S EXPECTANCY OF LIFE HAD EXPIRED.  THIS WAS SO HELD IN THE
FACE OF A RULE OF LAW IN THE STATE OF THE FORUM THAT SEVEN YEARS OF
UNEXPLAINED ABSENCE WAS SUFFICIENT TO ESTABLISH DEATH FOR PURPOSES OF
SUCH A RECOVERY.  THIS COURT STATED THAT NEITHER THE PUBLIC POLICY OF
THE FORUM NOR THE OPINION OF THE SUPREME COURT OF THAT STATE THAT THE
BY-LAW WAS UNREASONABLE, NOR THE FACT THAT THE MEMBERSHIP CONTRACT HAD
BEEN MADE IN SOUTH DAKOTA, NOR THE FACT THAT THE BY-LAW ITSELF HAD BEEN
ADOPTED SEVERAL YEARS AFTER THE MEMBERSHIP RELATION HAD COMMENCED,
COULD AFFECT THIS RESULT.  THIS COURT SAID: 

"WE NEED NOT CONSIDER WHAT OTHER STATES MAY REFUSE TO DO, BUT WE DEEM
IT ESTABLISHED THAT THEY CANNOT ATTACH TO MEMBERSHIP RIGHTS AGAINST THE
COMPANY THAT ARE REFUSED BY THE LAW OF THE DOMICIL.  IT DOES NOT MATTER
THAT THE MEMBER JOINED IN ANOTHER STATE."  ID. AT 551. 

IN BRODERICK V. ROSNER, 294 U.S. 629, THIS COURT, WITH MR. JUSTICE
CARDOZO NOTING DISSENT, APPLIED THIS PRINCIPLE TO A SUIT BROUGHT IN A
NEW JERSEY COURT AGAINST CERTAIN CITIZENS OF NEW JERSEY TO RECOVER
UNPAID ASSESSMENTS LEVIED UPON THEM AS STOCKHOLDERS IN A BANK
INCORPORATED UNDER THE LAWS OF NEW YORK.  A NEW JERSEY STATUTE SOUGHT
TO PROHIBIT, IN THE COURTS OF NEW JERSEY, PROCEEDINGS FOR THE
ENFORCEMENT OF ANY STOCKHOLDER'S STATUTORY PERSONAL LIABILITY IMPOSED
BY THE LAWS OF ANOTHER STATE, EXCEPT IN SUITS FOR EQUITABLE ACCOUNTING,
TO WHICH THE CORPORATION, ITS LEGAL REPRESENTATIVES, AND ALL OF ITS
CREDITORS AND STOCKHOLDERS WERE TO BE NECESSARY PARTIES.  PRACTICALLY,
THIS AMOUNTED TO AN ATTEMPT TO BAR SUCH SUITS FROM THE NEW JERSEY
COURTS.  THIS COURT, HOWEVER, SAID "IT IS SUFFICIENT TO DECIDE THAT,
SINCE THE NEW JERSEY COURTS POSSESS GENERAL JURISDICTION OF THE SUBJECT
MATTER AND THE PARTIES, AND THE SUBJECT MATTER IS NOT ONE AS TO WHICH
THE ALLEGED PUBLIC POLICY OF NEW JERSEY COULD BE CONTROLLING, THE FULL
FAITH AND CREDIT CLAUSE REQUIRES THAT THIS SUIT BE ENTERTAINED (WITHOUT
COMPLIANCE WITH THE SPECIAL NEW JERSEY STATUTE)."  ID. AT 647. 

MR. JUSTICE BRANDEIS, IN STATING THE REASONING OF THE COURT IN THE
BRODERICK CASE, SAID: 

"  ...  THE FULL FAITH AND CREDIT CLAUSE DOES NOT REQUIRE THE
ENFORCEMENT OF EVERY RIGHT WHICH HAS RIPENED INTO A JUDGMENT OF ANOTHER
STATE OR HAS BEEN CONFERRED BY ITS STATUTES.  SEE BRADFORD ELECTRIC
LIGHT CO. V. CLAPPER, 286 U.S. 145, 160; ALASKA PACKERS ASSN. V.
INDUSTRIAL ACCIDENT COMM'N, ANTE, P. 532, AT P. 546.  BUT THE ROOM LEFT
FOR THE PLAY OF CONFLICTING POLICIES IS A NARROW ONE.  ...  FOR THE
STATES OF THE UNION, THE CONSTITUTIONAL LIMITATION IMPOSED BY THE FULL
FAITH AND CREDIT CLAUSE ABOLISHED, IN LARGE MEASURE, THE GENERAL
PRINCIPLE OF INTERNATIONAL LAW BY WHICH LOCAL POLICY IS PERMITTED TO
DOMINATE RULES OF COMITY. 

"HERE THE NATURE OF THE CAUSE OF ACTION BRINGS IT WITHIN THE SCOPE OF
THE FULL FAITH AND CREDIT CLAUSE.  THE STATUTORY LIABILITY SOUGHT TO BE
ENFORCED IS CONTRACTUAL IN CHARACTER.  THE ASSESSMENT IS AN INCIDENT OF
THE INCORPORATION.  THUS THE SUBJECT MATTER IS PECULIARLY WITHIN THE
REGULATORY POWER OF NEW YORK, AS THE STATE OF INCORPORATION.  'SO MUCH
SO,' AS WAS SAID IN CONVERSE V. HAMILTON, 224 U.S. 243, 260, 'THAT NO
OTHER STATE PROPERLY CAN BE SAID TO HAVE ANY PUBLIC POLICY THEREON. 
...  '  ...  IN RESPECT TO THE DETERMINATION OF LIABILITY FOR AN
ASSESSMENT, THE NEW JERSEY STOCKHOLDERS SUBMITTED THEMSELVES TO THE
JURISDICTION OF NEW YORK.  FOR 'THE ACT OF BECOMING A MEMBER (OF A
CORPORATION) IS SOMETHING MORE THAN A CONTRACT, IT IS ENTERING INTO A
COMPLEX AND ABIDING RELATION, AND AS MARRIAGE LOOKS TO DOMICIL,
MEMBERSHIP LOOKS TO AND MUST BE GOVERNED BY THE LAW OF THE STATE
GRANTING THE INCORPORATION.'  MODERN WOODMEN OF AMERICA V. MIXER, 267
U.S. 544, 551."  FN26  ID. AT 642-644. 

IN MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268, MR. JUSTICE STONE,
SPEAKING FOR THE COURT, SAID: 

"THE VERY PURPOSE OF THE FULL FAITH AND CREDIT CLAUSE WAS TO ALTER
THE STATUS OF THE SEVERAL STATES AS INDEPENDENT FOREIGN SOVEREIGNTIES,
EACH FREE TO IGNORE OBLIGATIONS CREATED UNDER THE LAWS OR BY THE
JUDICIAL PROCEEDINGS OF THE OTHERS, AND TO MAKE THEM INTEGRAL PARTS OF
A SINGLE NATION THROUGHOUT WHICH A REMEDY UPON A JUST OBLIGATION MIGHT
BE DEMANDED AS OF RIGHT, IRRESPECTIVE OF THE STATE OF ITS ORIGIN."  ID.
AT 276-277. 

IN SOVEREIGN CAMP V. BOLIN, 305 U.S. 66, THIS COURT UNANIMOUSLY
APPROVED THE FOREGOING PRINCIPLES AND AUTHORITIES AND APPLIED THEM TO A
CASE THAT GOES EVEN BEYOND THE ISSUE PRESENTED BY THE INSTANT CASE.  IN
THAT CASE, BOLIN JOINED A MISSOURI LODGE OF A FRATERNAL BENEFIT SOCIETY
INCORPORATED IN NEBRASKA.  HIS CERTIFICATE OF MEMBERSHIP WAS DELIVERED
TO HIM IN MISSOURI, AND HE PAID HIS DUES AND ASSESSMENTS IN MISSOURI. 
HE WAS OVER 43 WHEN HE JOINED THE SOCIETY IN JUNE, 1896.  AT THAT TIME,
ONE OF ITS BY-LAWS PROVIDED THAT A MEMBER JOINING AT AN AGE GREATER
THAN 43 WAS ENTITLED TO LIFE MEMBERSHIP WITHOUT PAYMENT OF FURTHER DUES
OR ASSESSMENTS AFTER HIS CERTIFICATE HAD BEEN OUTSTANDING 20 YEARS.  ON
HIS CERTIFICATE WERE ENDORSED THE WORDS "PAYMENTS TO CEASE AFTER 20
YEARS," AND IT STATED THAT, IF IN GOOD STANDING, HE WOULD BE ENTITLED
TO PARTICIPATE IN THE BENEFICIAL FUND UP TO $1,000 PAYABLE TO HIS
BENEFICIARIES AND TO $100 FOR PLACING A MONUMENT AT HIS GRAVE.  HE PAID
HIS DUES AND ASSESSMENTS FOR THE REQUIRED 20 YEARS BUT CEASED DOING SO
IN JULY, 1916.  UPON HIS DEATH, HIS BENEFICIARIES SUED IN A STATE COURT
OF MISSOURI TO RECOVER ON HIS CERTIFICATE.  THEY WERE MET BY THE
DEFENSE THAT, IN TRAPP V. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD,
102 NEB. 562, 168 N.W. 191, THE SUPREME COURT OF NEBRASKA, IN 1918, IN
A REPRESENTATIVE SUIT BINDING ALL MEMBERS, HAD HELD THAT THE BY-LAW OF
THE SOCIETY, WHICH HAD PURPORTED TO AUTHORIZE THE "PAYMENTS TO CEASE"
CERTIFICATES, WAS ULTRA VIRES AND VOID.  IN THE SUIT BY BOLIN'S
BENEFICIARIES, THE SUPREME COURT OF MISSOURI THEN HELD THAT FROM 1889
TO 1897, INCLUDING THE TIME WHEN BOLIN JOINED THE SOCIETY, THERE HAD
BEEN NO MISSOURI STATUTE PROVIDING FOR THE REGISTRATION AND FILING OF
REPORTS IN MISSOURI BY FOREIGN FRATERNAL BENEFIT SOCIETIES AND THAT
THERE HAD BEEN NO PROVISION EXEMPTING THEM FROM THE OPERATION OF THE
GENERAL INSURANCE LAWS OF MISSOURI.  THE SUPREME COURT OF MISSOURI,
ACCORDINGLY, APPLIED WHAT IT CONSIDERED TO BE THE MISSOURI LAW AND
PUBLIC POLICY.  ON THIS BASIS, IT DISREGARDED THE SPECIAL STATUS OF THE
CLAIM AS ONE DERIVED FROM THE DECEDENT'S MEMBERSHIP IN A NEBRASKA
FRATERNAL BENEFIT SOCIETY AND DISREGARDED THE NEBRASKA LAW, AS
INTERPRETED BY THE SUPREME COURT OF NEBRASKA, WHICH HAD HELD THE
DECEDENT'S PURPORTED EXEMPTION FROM PAYMENTS AFTER 1916 TO BE ULTRA
VIRES AND VOID.  THE MISSOURI COURT TREATED HIS MEMBERSHIP AS A
MISSOURI CONTRACT, SUBJECT TO THE GENERAL INSURANCE LAWS OF MISSOURI,
INTERPRETED HIS CERTIFICATE AS AN ORDINARY MISSOURI CONTRACT, NOT ULTRA
VIRES UNDER THE LAW OF MISSOURI, AND HELD THE SOCIETY LIABLE UPON IT.
THIS COURT, HOWEVER, REVERSED THAT JUDGMENT ON THE GROUND THAT, UNDER
THE FULL FAITH AND CREDIT CLAUSE, THE MISSOURI COURTS WERE REQUIRED TO
ACCEPT THE NEBRASKA LAW AS TO THE VALIDITY OF THE CORPORATE BY-LAW. 

MR. JUSTICE ROBERTS, WRITING FOR THE COURT SAID: 

"WE HOLD THAT THE JUDGMENT DENIED FULL FAITH AND CREDIT TO THE PUBLIC
ACTS, RECORDS, AND JUDICIAL PROCEEDINGS OF THE STATE OF NEBRASKA. 

"  ...  THE BENEFICIARY CERTIFICATE WAS NOT A MERE CONTRACT TO BE
CONSTRUED AND ENFORCED ACCORDING TO THE LAWS OF THE STATE WHERE IT WAS
DELIVERED.  ENTRY INTO MEMBERSHIP OF AN INCORPORATED BENEFICIARY
SOCIETY IS MORE THAN A CONTRACT; IT IS ENTERING INTO A COMPLEX AND
ABIDING RELATION AND THE RIGHTS OF MEMBERSHIP ARE GOVERNED BY THE LAW
OF THE STATE OF INCORPORATION.  ANOTHER STATE, WHEREIN THE CERTIFICATE
OF MEMBERSHIP WAS ISSUED, CANNOT ATTACH TO MEMBERSHIP RIGHTS AGAINST
THE SOCIETY WHICH ARE REFUSED BY THE LAW OF THE DOMICILE. 

     .         .  .         .         . 

"THE COURT BELOW WAS NOT AT LIBERTY TO DISREGARD THE FUNDAMENTAL LAW
OF THE PETITIONER AND TURN A MEMBERSHIP BENEFICIARY CERTIFICATE INTO AN
OLD LINE POLICY TO BE CONSTRUED AND ENFORCED ACCORDING TO THE LAW OF
THE FORUM.  THE DECISION THAT THE PRINCIPLE OF ULTRA VIRES CONTRACTS
WAS TO BE APPLIED AS IF THE PETITIONER WERE A MISSOURI OLD LINE LIFE
INSURANCE COMPANY WAS ERRONEOUS IN THE LIGHT OF THE DECISIONS OF THIS
COURT WHICH HAVE UNIFORMLY HELD THAT THE RIGHTS OF MEMBERS OF SUCH
ASSOCIATIONS ARE GOVERNED BY THE DEFINITION OF THE SOCIETY'S POWERS BY
THE COURTS OF ITS DOMICILE. 

     .   .         .         .         . 

"UNDER OUR UNIFORM HOLDINGS THE COURT BELOW FAILED TO GIVE FULL FAITH
AND CREDIT TO THE PETITIONER'S CHARTER EMBODIED IN THE STATUTES OF
NEBRASKA AS INTERPRETED BY ITS HIGHEST COURT."  ID. AT 75(CITING MODERN
WOODMEN V. MIXER, SUPRA, AND ROYAL ARCANUM V. GREEN, SUPRA), 78, 79. 

THIS PRONOUNCEMENT AS TO THE UNIFORM HOLDINGS OF THIS COURT HAS NOT
BEEN REPUDIATED OR MODIFIED.  IN THE PRESENT CASE, THE DECISIONS RELIED
UPON BY THE COURT BELOW, IN REACHING A CONTRARY RESULT, DEAL WITH
RELATED BUT DISTINGUISHABLE SITUATIONS. 

IN PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S. 201, THIS COURT, IN A
UNANIMOUS OPINION WRITTEN BY MR. CHIEF JUSTICE STONE, HELD THAT THE
FULL FAITH AND CREDIT CLAUSE DOES NOT APPLY TO AN ACTION BROUGHT IN THE
COURTS OF GEORGIA TO COLLECT ASSESSMENTS AGAINST AN ALLEGED MEMBER OF
AN INSOLVENT MUTUAL INSURANCE COMPANY, ACCORDING TO THE TERMS OF HIS
CONTRACT OF MEMBERSHIP, UNLESS SUCH MEMBERSHIP FIRST BE PROVED.  THE
COURT, HOWEVER, RECOGNIZED THAT CORPORATE PROCEDURE IN CONFORMITY WITH
THE STATUTES OF THE STATE OF INCORPORATION IS ENTITLED TO FULL FAITH
AND CREDIT SO FAR AS THE NECESSITY AND AMOUNT OF THE ASSESSMENT OF
STOCKHOLDERS' LIABILITY IS CONCERNED, AND SAID AT PP. 207-208:  "THE
LIKE PRINCIPLE HAS BEEN CONSISTENTLY APPLIED TO MUTUAL INSURANCE
ASSOCIATIONS, WHERE THE FACT THAT THE POLICYHOLDERS WERE MEMBERS WAS
NOT CONTESTED," CITING ROYAL ARCANUM V. GREEN, 237 U.S. 531; MODERN
WOODMEN V. MIXER, 267 U.S. 544.  AND FURTHER: 

"WHERE A RESIDENT OF ONE STATE HAS BY STIPULATION OR STOCK OWNERSHIP
BECOME A MEMBER OF A CORPORATION OR ASSOCIATION OF ANOTHER, THE STATE
OF HIS RESIDENCE MAY HAVE NO SUCH DOMESTIC INTEREST IN PREVENTING HIM
FROM FULFILLING THE OBLIGATIONS OF MEMBERSHIP AS WOULD ADMIT OF A
RESTRICTED APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE.  BUT IT
DOES HAVE A LEGITIMATE INTEREST IN DETERMINING WHETHER ITS RESIDENTS
HAVE ASSENTED TO MEMBERSHIP OBLIGATIONS SOUGHT TO BE IMPOSED ON THEM BY
EXTRASTATE LAW TO WHICH THEY ARE NOT OTHERWISE SUBJECT."  ID. AT 210
211. 

THESE RECENT REFERENCES TO THE PRINCIPLE WHICH IS INVOLVED IN THE
INSTANT CASE CONSTITUTE A SIGNIFICANT RECOGNITION OF ITS CONSISTENCY
WITH THE DECISIONS OF THIS COURT IN RELATED BUT DISTINGUISHABLE
SITUATIONS.  THE PINK CASE APPROPRIATELY EMPHASIZED THE DISTINCTION
BETWEEN, ON THE ONE HAND, A SOUND LOCAL PUBLIC POLICY WHICH CLOSELY
SCRUTINIZES THE PROOF OF THE ENTRY INTO A CERTAIN RELATIONSHIP AND, ON
THE OTHER HAND, A LOCAL PUBLIC POLICY WHICH, IN THE FACE OF THE FULL
FAITH AND CREDIT CLAUSE, WOULD SEEK TO ELIMINATE IMPORTANT TERMS FROM
THAT RELATIONSHIP AFTER IT HAS BEEN ENTERED INTO. 

CONTEMPORANEOUSLY WITH THIS DEVELOPMENT OF THE POLICY OF THIS COURT,
APPLYING THE FULL FAITH AND CREDIT CLAUSE IN SUPPORT OF MEMBERSHIP
OBLIGATIONS IN FRATERNAL BENEFIT SOCIETIES, IT HAS CONSIDERED THE SAME
CLAUSE IN SEVERAL RELATED SITUATIONS.  FOR EXAMPLE, IT HAS APPLIED IT
IN REQUIRING THE MINNESOTA COURTS TO RECOGNIZE THE OBLIGATION OF
MEMBERS OF THE SAFETY FUND DEPARTMENT OF A CONNECTICUT LIFE INSURANCE
COMPANY TO MEET ASSESSMENTS LEVIED UPON THEM PURSUANT TO A MUTUAL
ASSESSMENT PLAN VALID UNDER THE LAWS OF CONNECTICUT.  HARTFORD LIFE
INS. CO. V. IBS, 237 U.S. 662.  THIS WAS A UNANIMOUS OPINION WRITTEN BY
MR. JUSTICE J. R. LAMAR.  IN ANOTHER UNANIMOUS OPINION IN HARTFORD LIFE
INS. CO. V. BARBER, 245 U.S. 146, AT P. 150, MR. JUSTICE HOLMES SAID,
"THE POWERS GIVEN BY THE CONNECTICUT CHARTER ARE ENTITLED TO THE SAME
CREDIT ELSEWHERE AS THE JUDGMENT OF THE CONNECTICUT COURT.  SUPREME
COUNCIL OF THE ROYAL ARCANUM V. GREEN, 237 U.S. 531, 542."  SEE ALSO,
JOHN HANCOCK INS. CO. V. YATES, 299 U.S. 178, 182-183. 

WITHOUT RELIANCE UPON THE FULL FAITH AND CREDIT CLAUSE, A SOMEWHAT
SIMILAR RESULT HAS BEEN RECOGNIZED IN THE PROTECTIVE EFFECT OF THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES,
PROHIBITING THE DEPRIVATION OF ANY PERSON OF HIS PROPERTY WITHOUT DUE
PROCESS OF LAW.  A LIKE POLICY UNDERLIES SEC. 10 OF ARTICLE I OF THE
CONSTITUTION, PROHIBITING A STATE FROM PASSING ANY LAW IMPAIRING THE
OBLIGATION OF CONTRACTS.  ACCORDINGLY, IN HOME INS. CO. V. DICK, 281
U.S. 397, IN AN OPINION BY MR. JUSTICE BRANDEIS, THIS COURT RELIED UPON
THE FOURTEENTH AMENDMENT IN DEALING WITH ORDINARY INSURANCE POLICIES. 
IT UPHELD UNANIMOUSLY THE EFFECTIVENESS OF A CONTRACTUAL ONE-YEAR
LIMITATION UPON THE RIGHT TO SUE FOR RECOVERY OF A LOSS UNDER A MARINE
FIRE INSURANCE POLICY, WHERE SUCH LIMITATION WAS GOOD IN MEXICO (IN
WHICH COUNTRY THE INSURANCE WAS WRITTEN AND WAS TO BE PERFORMED), AS
AGAINST A TWO-YEAR GENERAL STATUTE OF LIMITATIONS OF THE STATE OF THE
FORUM (TEXAS).  IN HARTFORD ACCIDENT & INDEMNITY CO. V. DELTA & PINE
LAND CO., 292 U.S. 143, IN AN OPINION BY MR. JUSTICE ROBERTS, THE COURT
AGAIN RELIED UPON THE FOURTEENTH AMENDMENT.  THERE IT UPHELD
UNANIMOUSLY A 15-MONTH CONTRACTUAL LIMITATION UPON THE RIGHT TO SUE
UPON A FIDELITY BOND.  THIS LIMITATION WAS VALID IN TENNESSEE, WHERE
SUCH BOND WAS ENTERED INTO, AND IT WAS HERE UPHELD AGAINST THE LOCAL
POLICY OF THE STATE OF THE FORUM (MISSISSIPPI). 

IN A RELATED BUT READILY DISTINGUISHABLE SERIES OF CASES DEALING WITH
CONFLICTING CLAIMS ARISING UNDER WORKMEN'S COMPENSATION ACTS, EMPHASIS
HAS BEEN PLACED UPON THE RULE STATED BY MR. JUSTICE STONE, FOR A
UNANIMOUS COURT, IN ALASKA PACKERS ASSN. V. COMM'N, 294 U.S. 532, 547. 
HE THERE SAID: 

"  ...  THE CONFLICT IS TO BE RESOLVED, NOT BY GIVING AUTOMATIC EFFECT
TO THE FULL FAITH AND CREDIT CLAUSE, COMPELLING THE COURTS OF EACH
STATE TO SUBORDINATE ITS OWN STATUTES TO THOSE OF THE OTHER, BUT BY
APPRAISING THE GOVERNMENTAL INTERESTS OF EACH JURISDICTION, AND TURNING
THE SCALE OF DECISION ACCORDING TO THEIR WEIGHT." 

IN PACIFIC INS. CO. V. INDUSTRIAL ACCIDENT COMM'N, 306 U.S. 493,
AGAIN SPEAKING FOR THE COURT, HE ADDED AT P. 502: 

"AND IN THE CASE OF STATUTES, THE EXTRA-STATE EFFECT OF WHICH
CONGRESS HAS NOT PRESCRIBED, AS IT MAY UNDER THE CONSTITUTIONAL
PROVISION, WE THINK THE CONCLUSION IS UNAVOIDABLE THAT THE FULL FAITH
AND CREDIT CLAUSE DOES NOT REQUIRE ONE STATE TO SUBSTITUTE FOR ITS OWN
STATUTE, APPLICABLE TO PERSONS AND EVENTS WITHIN IT, THE CONFLICTING
STATUTE OF ANOTHER STATE, EVEN THOUGH THAT STATUTE IS OF CONTROLLING
FORCE IN THE COURTS OF THE STATE OF ITS ENACTMENT WITH RESPECT TO THE
SAME PERSONS AND EVENTS."  SEE ALSO, MAGNOLIA PETROLEUM CO. V. HUNT,
320 U.S. 430, IN WHICH, AS CHIEF JUSTICE, HE UPHELD THE CONTROLLING
EFFECT OF THE FULL FAITH AND CREDIT CLAUSE AS AGAINST THE LAW OF THE
FORUM. 

THE LANGUAGE QUOTED FROM THE PACIFIC INS. CO. CASE, SUPRA, ALSO WAS
QUOTED WITH APPROVAL IN WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, AT P.
296.  IN THE LATTER CASE, ON THE BASIS OF THE FULL FAITH AND CREDIT
CLAUSE, THIS COURT GAVE EFFECT TO THE LAW OF THE DOMICIL IN UPHOLDING
THE VALIDITY OF A DIVORCE, AS AGAINST THE LAW OF THE FORUM. 

WE FIND NO CONFLICT BETWEEN THE POSITION TAKEN IN THE INSTANT CASE
AND THAT TAKEN IN THE FOREGOING CASES OR IN GRIFFIN V. MCCOACH, 313
U.S. 498, HOOPESTON CO. V. CULLEN, 318 U.S. 313, OR IN OTHER DECISIONS
OF THIS COURT UPON WHICH RELIANCE HAS BEEN PLACED TO SUPPORT AN
OPPOSITE CONCLUSION. 

ACCEPTING THE VIEW, EXPRESSED IN THESE RELATED CASES, THAT THIS COURT
SHOULD NOT GIVE WHAT MR. JUSTICE STONE CALLED A MERE "AUTOMATIC EFFECT
TO THE FULL FAITH AND CREDIT CLAUSE,"  FN27 THIS COURT CONSISTENTLY HAS
UPHELD, ON THE BASIS OF EVALUATED PUBLIC POLICY, THE LAW OF THE STATE
OF INCORPORATION OF A FRATERNAL BENEFIT SOCIETY AS THE LAW THAT SHOULD
CONTROL THE VALIDITY OF THE TERMS OF MEMBERSHIP IN THAT CORPORATION. 
THE WEIGHT OF PUBLIC POLICY BEHIND THE GENERAL STATUTE OF SOUTH DAKOTA,
WHICH SEEKS TO AVOID CERTAIN PROVISIONS IN ORDINARY CONTRACTS, DOES NOT
EQUAL THAT WHICH MAKES NECESSARY THE RECOGNITION OF THE SAME TERMS OF
MEMBERSHIP FOR MEMBERS OF FRATERNAL BENEFIT SOCIETIES WHEREVER THEIR
BENEFICIARIES MAY BE.  THIS IS ESPECIALLY OBVIOUS WHERE THE STATE OF
THE FORUM, WITH FULL INFORMATION AS TO THOSE TERMS OF MEMBERSHIP, HAS
PERMITTED SUCH SOCIETIES TO DO BUSINESS AND SECURE MEMBERS WITHIN ITS
BORDERS.  THERE WOULD BE LITTLE SOUND PUBLIC POLICY IN PERMITTING THE
COURTS OF SOUTH DAKOTA TO RECOGNIZE AN ACTION TO COLLECT THE FULL
BENEFITS TO BE DERIVED FROM A MEMBERSHIP IN THE PETITIONER SOCIETY,
WHILE, AT THE SAME TIME, NULLIFYING OTHER INTEGRAL TERMS OF THAT SAME
MEMBERSHIP WHICH LIMIT CERTAIN RIGHTS OF BENEFICIARIES TO ENFORCE
COLLECTION OF SUCH BENEFITS.  IT IS OF THE ESSENCE OF THE FULL FAITH
AND CREDIT CLAUSE THAT, IF A STATE GIVES SOME FAITH AND CREDIT TO THE
PUBLIC ACTS OF ANOTHER STATE BY PERMITTING ITS OWN CITIZENS TO BECOME
MEMBERS OF, AND BENEFIT FROM, FRATERNAL BENEFIT SOCIETIES ORGANIZED BY
SUCH OTHER STATE, THEN IT MUST GIVE FULL FAITH AND CREDIT TO THOSE
PUBLIC ACTS AND MUST RECOGNIZE THE BURDENS AND LIMITATIONS WHICH ARE
INHERENT IN SUCH MEMBERSHIPS.  IN THIS CASE, THE STATE OF THE FORUM HAS
LICENSED THE SOCIETY TO DO BUSINESS WITHIN ITS BORDERS.  IT IS
CONCERNED AS MUCH WITH THE VALIDITY AND FAIRNESS OF THE OBLIGATIONS TO
BE ENFORCED BY ASSESSMENTS AGAINST ITS CITIZENS WHO BECOME MEMBERS OF
THE SOCIETY AS IT IS WITH THE BENEFITS TO BE CLAIMED BY THOSE WHO
BECOME ITS BENEFICIARIES.  IN THIS CASE, THE FULL FAITH AND CREDIT
CLAUSE, THEREFORE, REQUIRES THAT EFFECT BE GIVEN TO THE SIX-MONTH
LIMIT, PRESCRIBED BY THE SOCIETY AND AUTHORIZED BY OHIO, UPON THE RIGHT
TO COMMENCE THIS ACTION.  SUCH LIMIT EXPIRED BEFORE THIS ACTION WAS
COMMENCED AND THE JUDGMENT OF THE SUPREME COURT OF SOUTH DAKOTA IN
FAVOR OF THE RESPONDENT ACCORDINGLY IS REVERSED. 

FN1  "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."  U.S. CONST. ART. IV, SEC. 1.  SEE ALSO, ACT OF MAY 26, 1790,
1 STAT. 122; ACT OF MAR. 27, 1804, 2 STAT. 298; REV. STAT. SECS. 905,
906, 28 U.S.C. SECS. 687, 688. 

FN2  "NO SUIT OR PROCEEDING, EITHER AT LAW OR IN EQUITY, SHALL BE
BROUGHT TO RECOVER ANY BENEFITS UNDER THIS ARTICLE AFTER SIX (6) MONTHS
FROM THE DATE THE CLAIM FOR SAID BENEFITS IS DISALLOWED BY THE SUPREME
EXECUTIVE COMMITTEE."  FROM SEC. 11 OF ARTICLE IV, "INSURANCE," OF THE
CONSTITUTION OF THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, AS
PRINTED ON THE BACK OF THE ORIGINAL CERTIFICATE OF MEMBERSHIP ISSUED TO
DECEDENT AUGUST 19, 1920, AND AS IN EFFECT AT THE FILING OF THIS ACTION
JUNE 15, 1934.    FN3  SEC. 2298, S.D. REV. CODE, 1919. 

FN4  SEC. 897, S.D. REV. CODE, 1919. 

FN5  ROYAL ARCANUM V. GREEN, 237 U.S. 531; MODERN WOODMEN V. MIXER,
267 U.S. 544; BRODERICK V. ROSNER, 294 U.S. 629; SOVEREIGN CAMP V.
BOLIN, 305 U.S. 66.  SEE ALSO, PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S.
201, 207, 210-211.    FN6  AS IN EFFECT SEPTEMBER 1, 1930, AND
PRESUMABLY AT THE MEMBER'S DEATH, MAY 8, 1931, THE ARTICLES OF
INCORPORATION CONTAINED ONLY THE FOLLOWING PROVISIONS: 

"WITNESSETH:  THAT WE, THE UNDERSIGNED, ALL OF WHOM ARE CITIZENS OF
THE STATE OF OHIO, DESIRING TO FORM A CORPORATION, NOT FOR PROFIT,
UNDER THE GENERAL CORPORATION LAWS OF SAID STATE, DO HEREBY CERTIFY: 

"FIRST.  THE NAME OF SAID CORPORATION SHALL BE THE ORDER OF UNITED
COMMERCIAL TRAVELERS OF AMERICA. 

"SECOND.  SAID CORPORATION SHALL BE LOCATED, AND ITS PRINCIPAL
BUSINESS TRANSACTED AT COLUMBUS, IN FRANKLIN COUNTY, OHIO. 

"THIRD.  THE PURPOSE FOR WHICH SAID CORPORATION IS FORMED IS: 

"1ST.  TO UNITE FRATERNALLY ALL COMMERCIAL TRAVELERS, WHOLESALE
SALESMEN AND SUCH OTHER PERSONS OF GOOD MORAL CHARACTER AS ARE NOW OR
MAY HEREAFTER BECOME ELIGIBLE TO MEMBERSHIP, UNDER THE PROVISIONS OF
THE CONSTITUTION OF THE ORDER. 

"2ND.  TO GIVE ALL MORAL AND MATERIAL AID IN ITS POWER TO ITS MEMBERS
AND THOSE DEPENDENT UPON THEM.  ALSO TO ASSIST THE WIDOWS AND ORPHANS
OF DECEASED MEMBERS. 

"3RD.  TO ESTABLISH FUNDS TO INDEMNIFY ITS MEMBERS FOR DISABILITY OR
DEATH RESULTING FROM ACCIDENTAL MEANS. 

"4TH.  TO SECURE JUST AND EQUITABLE FAVORS FOR COMMERCIAL TRAVELERS
AND WHOLESALE SALESMEN AS A CLASS. 

"5TH.  TO ELEVATE THE MORAL AND SOCIAL STANDING OF ITS MEMBERS. 

"6TH.  SAID CORPORATION SHALL BE A SECRET ORDER. 

"7TH.  TO ESTABLISH A WIDOWS' AND ORPHANS' RESERVE FUND." 

THIS SOCIETY IS STRIKINGLY SIMILAR IN FORM TO THE "FRATERNAL
BENEFICIARY ASSOCIATION," INCORPORATED IN MASSACHUSETTS IN 1877 AND
DESCRIBED IN THE LEADING CASE ON THIS SUBJECT, ROYAL ARCANUM V. GREEN,
237 U.S. 531.  AS TO THAT ASSOCIATION IT WAS SAID BY THE SUPREME COURT
OF MASSACHUSETTS THAT:  "THE FRATERNAL PLAN, WITH MUTUALITY AND WITHOUT
PROFIT, DISTINGUISHES THE WORK OF SUCH AN ASSOCIATION FROM A COMMERCIAL
ENTERPRISE.  IT IS A CHARITABLE AND BENEVOLENT ORGANIZATION, WITH A
LIMITATION OF MEMBERSHIP TO A SPECIAL CLASS, AND A LIMITATION UPON THE
CHOICE OF BENEFICIARIES."  REYNOLDS V. ROYAL ARCANUM, 192 MASS. 150,
155, 78 N.E. 129, 131. 

FN7  "SEC.  9462.  ...  ANY CORPORATION, SOCIETY, ORDER, OR VOLUNTARY
ASSOCIATION, WITHOUT CAPITAL STOCK, ORGANIZED AND CARRIED ON SOLELY FOR
THE MUTUAL BENEFIT OF ITS MEMBERS AND THEIR BENEFICIARIES, AND NOT FOR
PROFIT, AND HAVING A LODGE SYSTEM WITH RITUALISTIC FORM OF WORK AND
REPRESENTATIVE FORM OF GOVERNMENT, AND WHICH SHALL MAKE PROVISION FOR
THE PAYMENT OF BENEFITS IN ACCORDANCE WITH SECTION 5(G.C. SEC. 9466)
HEREOF, IS HEREBY DECLARED TO BE A FRATERNAL BENEFIT SOCIETY."  OHIO
GEN. CODE, 1931. 

FN8  "SEC.  9469.  ...  EVERY CERTIFICATE ISSUED BY ANY SUCH SOCIETY
SHALL SPECIFY THE AMOUNT OF BENEFIT PROVIDED THEREBY, AND SHALL PROVIDE
THAT THE CERTIFICATE, THE CHARTER OR ARTICLES OF INCORPORATION, OF, IF
A VOLUNTARY ASSOCIATION, THE ARTICLES OF ASSOCIATION, THE CONSTITUTION
AND LAWS OF THE SOCIETY AND THE APPLICATION FOR MEMBERSHIP AND MEDICAL
EXAMINATION, SIGNED BY THE APPLICANT, AND ALL AMENDMENTS TO EACH
THEREOF, SHALL CONSTITUTE THE AGREEMENT BETWEEN THE SOCIETY AND THE
MEMBER, AND COPIES OF THE SAME CERTIFIED BY THE SECRETARY OF THE
SOCIETY, OR CORRESPONDING OFFICER, SHALL BE RECEIVED IN EVIDENCE OF THE
TERMS AND CONDITIONS THEREOF, AND ANY CHANGES, ADDITIONS OR AMENDMENTS
TO SUCH CHARTER OR ARTICLES OF INCORPORATION, OR ARTICLES OF
ASSOCIATION, IF A VOLUNTARY ASSOCIATION, CONSTITUTION OR LAWS DULY MADE
OR ENACTED SUBSEQUENT TO THE ISSUANCE OF THE BENEFIT CERTIFICATE SHALL
BIND THE MEMBERS AND HIS BENEFICIARIES, AND SHALL GOVERN AND CONTROL
THE AGREEMENT IN ALL RESPECTS THE SAME AS THOUGH SUCH CHANGES,
ADDITIONS OR AMENDMENTS HAD BEEN MADE PRIOR TO AND WERE IN FORCE AT THE
TIME OF THE APPLICATION FOR MEMBERSHIP."  OHIO GEN. CODE, 1931. 

FN9  "SEC.  9469-1.  ...  THE PROVISIONS OF SECTION NINETY-FOUR
HUNDRED AND SIXTY-NINE OF THE GENERAL CODE, REQUIRING THE CERTIFICATE
TO SPECIFY THE MAXIMUM AMOUNT OF BENEFIT PROVIDED THEREBY AND THE
CONDITIONS GOVERNING THE PAYMENT THEREOF, SHALL NOT APPLY TO THE
CERTIFICATES OF A FRATERNAL BENEFICIARY ASSOCIATION ORGANIZED UNDER THE
LAWS OF OHIO, WHOSE MEMBERSHIP CONSISTS OF COMMERCIAL TRAVELERS AND
WHICH DOES NOT OBLIGATE ITSELF TO PAY STIPULATED AMOUNTS OF BENEFITS IN
CASE OF NATURAL DEATH."  OHIO GEN. CODE, 1931. 

FN10  "SEC.  9481.  ...  THE CONSTITUTION AND LAWS OF THE SOCIETY MAY
PROVIDE THAT NO SUBORDINATE BODY, NOR ANY OF ITS SUBORDINATE OFFICERS
OR MEMBERS SHALL HAVE THE POWER OR AUTHORITY TO WAIVE ANY OF THE
PROVISIONS OF THE LAWS AND CONSTITUTION OF THE SOCIETY, AND THE SAME
SHALL BE BINDING ON THE SOCIETY AND EACH AND EVERY MEMBER THEREOF AND
ON ALL BENEFICIARIES OF MEMBERS."  OHIO GEN. CODE, 1931. 

FN11  S.D.L., 1919, C. 232, SEC. 16, AUTHORIZED THE ISSUANCE OF SUCH
A LICENSE - 

"UPON FILING WITH THE COMMISSIONER A DULY CERTIFIED COPY OF ITS
CHARTER OR ARTICLES OF ASSOCIATION; A COPY OF ITS CONSTITUTION AND
LAWS, CERTIFIED BY ITS SECRETARY OR CORRESPONDING OFFICERS; A POWER OF
ATTORNEY TO THE COMMISSIONER (TO ACCEPT SERVICE OF PROCESS)  ...  ; A
STATEMENT OF ITS BUSINESS UNDER OATH OF ITS PRESIDENT AND SECRETARY, OR
CORRESPONDING OFFICERS, IN THE FORM REQUIRED BY THE COMMISSIONER, DULY
VERIFIED BY AN EXAMINATION MADE BY THE SUPERVISING INSURANCE OFFICIAL
OF ITS HOME STATE OR OTHER STATE SATISFACTORY TO THE COMMISSIONER OF
INSURANCE OF THIS STATE; A CERTIFICATE FROM THE PROPER OFFICIAL IN ITS
HOME STATE, PROVINCE OR COUNTRY, THAT THE SOCIETY IS LEGALLY ORGANIZED;
A COPY OF ITS CONTRACT, WHICH MUST SHOW THAT BENEFITS ARE PROVIDED FOR
BY PERIODICAL, OR OTHER PAYMENTS BY PERSONS HOLDING SIMILAR CONTRACTS;
AND UPON FURNISHING THE COMMISSIONER SUCH OTHER INFORMATION AS HE MAY
DEEM NECESSARY TO A PROPER EXHIBIT OF ITS BUSINESS AND PLAN OF WORKING,
AND UPON SHOWING THAT ITS ASSETS ARE INVESTED IN ACCORDANCE WITH THE
LAWS OF THE STATE, TERRITORY, DISTRICT, PROVINCE OR COUNTRY WHERE IT IS
ORGANIZED, HE SHALL ISSUE A LICENSE TO SUCH SOCIETY TO DO BUSINESS IN
THIS STATE UNTIL THE FIRST DAY OF THE SUCCEEDING MARCH, AND SUCH
LICENSE SHALL, UPON COMPLIANCE WITH THE PROVISIONS OF THIS ACT, BE
RENEWED ANNUALLY, BUT IN ALL CASES TO TERMINATE ON THE FIRST DAY OF THE
SUCCEEDING MARCH; PROVIDED, HOWEVER, THAT LICENSE SHALL CONTINUE IN
FULL FORCE AND EFFECT UNTIL THE NEW LICENSE BE ISSUED OR SPECIFICALLY
REFUSED.  ANY FOREIGN SOCIETY DESIRING ADMISSION TO THIS STATE, SHALL
HAVE THE QUALIFICATIONS REQUIRED OF DOMESTIC SOCIETIES ORGANIZED UNDER
THIS ACT, UPON A VALUATION BY ANY ONE OF THE STANDARDS AUTHORIZED IN
THE LAWS OF THE STATE, TERRITORY, DISTRICT, COUNTRY, OR PROVINCE WHERE
IT IS ORGANIZED.  FOR EACH SUCH LICENSE OR RENEWAL THE SOCIETY SHALL
PAY THE COMMISSIONER TWO ($2.00) DOLLARS.  WHEN THE COMMISSIONER
REFUSES TO LICENSE ANY SOCIETY, OR REVOKES ITS AUTHORITY TO DO BUSINESS
IN THIS STATE, HE SHALL REDUCE HIS RULING, ORDER OR DECISION TO WRITING
AND FILE THE SAME IN HIS OFFICE, AND SHALL FURNISH A COPY THEREOF,
TOGETHER WITH A STATEMENT OF HIS REASON, TO THE OFFICERS OF THE
SOCIETY, UPON REQUEST, AND THE ACTION OF THE COMMISSIONER SHALL BE
REVIEWABLE BY PROPER PROCEEDINGS IN ANY COURT OF COMPETENT JURISDICTION
WITHIN THE STATE,  ...  " 

SEE ALSO, SECS. 31.2124-31.2126, 31.2139, S.D. CODE OF 1939.  THE
STATE OF OHIO HAS SIMILAR PROVISIONS IN ITS CODE.  SEC. 9477, OHIO GEN.
CODE, 1931. 

FN12  "AN ACT PROVIDING FOR THE REGULATION AND CONTROL OF ALL
FRATERNAL BENEFIT SOCIETIES," APPROVED MAR. 11, 1919, S.D.L., 1919, C.
232, PP. 240-253.  FOR EXAMPLE, SEC. 1 DEFINES THEM AS FOLLOWS: 

"ANY CORPORATION, SOCIETY, ORDER, OR VOLUNTARY ASSOCIATION, WITHOUT
CAPITAL STOCK, ORGANIZED AND CARRIED ON SOLELY FOR THE MUTUAL BENEFIT
OF ITS MEMBERS AND THEIR BENEFICIARIES, AND NOT FOR PROFIT, AND HAVING
A LODGE SYSTEM WITH RITUALISTIC FORM OF WORK AND REPRESENTATIVE FORM OF
GOVERNMENT, AND WHICH SHALL MAKE PROVISION FOR THE PAYMENT OF BENEFITS
IN ACCORDANCE WITH SECTION 5 HEREOF, IS HEREBY DECLARED TO BE A
FRATERNAL BENEFIT SOCIETY." 

SEE ALSO, C. 31.21, "FRATERNAL BENEFIT SOCIETIES," S.D. CODE OF 1939,
AND CF. WITH OHIO DEFINITION IN NOTE 6, SUPRA. 

FN13  "SEC.  2.  ANY WHITE MALE CITIZEN OF THE UNITED STATES OR
BRITISH POSSESSIONS IN NORTH AMERICA OF GOOD MORAL CHARACTER AND GOOD
GENERAL HEALTH, NOT UNDER EIGHTEEN (18) AND NOT OVER SIXTY (60) YEARS
OF AGE, WHO HAS BEEN ACTIVELY AND ACTUALLY ENGAGED FOR A TERM OF NOT
LESS THAN SIX MONTHS IMMEDIATELY PRECEDING THE DATE OF HIS APPLICATION
AS A COMMERCIAL TRAVELER, CITY SALESMAN, WHOLESALE HOUSE SALESMAN,
SALES MANAGER OR MERCHANDISE BROKER, SELLING GOODS AT WHOLESALE OR
SELLING OFFICE, STORE, FACTORY, RAILROAD, MILL OR MUNICIPAL EQUIPMENT,
FOR A MANUFACTURER OR WHOLESALE DEALER, OR ONE WHO HAS HAD AT LEAST SIX
MONTHS EXPERIENCE IN EITHER OF THE OCCUPATIONS NAMED HEREIN, AND IS
THUS ENGAGED AT THE DATE OF FILING THE APPLICATION, AND WHO IS IN GOOD
MENTAL AND PHYSICAL CONDITION MAY BECOME A MEMBER OF THIS ORDER IF
FOUND ACCEPTABLE."  ART. II, CONSTITUTION OF THE SOCIETY, 1922. 

FN14  THE CERTIFICATE, NO. 169655, THEN ISSUED TO HIM, AND WHICH IS
THE PRIMARY BASIS FOR THE RESPONDENT'S CLAIM, IS AS FOLLOWS:

              "INCORPORATED UNDER THE GENERAL LAWS OF THE

STATE OF OHIO. 

                                CLASS A

                         INSURANCE CERTIFICATE

                    THE ORDER OF

UNITED COMMERCIAL TRAVELERS

OF AMERICA

                            COLUMBUS, OHIO 

"AN ASSOCIATION INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO,
HEREBY CERTIFIES THAT FORD SHANE, A MEMBER OF THE ORDER OF UNITED
COMMERCIAL TRAVELERS OF AMERICA, IN CONSIDERATION OF THE STATEMENTS
CONTAINED IN HIS APPLICATION FOR INSURANCE AND THE APPLICATION FEE PAID
BY HIM, IS HEREBY ACCEPTED AS AN INSURED MEMBER OF SAID ORDER UNDER
'CLASS A,' BEGINNING AT TWELVE (12) O'CLOCK, NOON, STANDARD TIME, ON
THE DAY THIS CERTIFICATE IS DATED, AND IS ENTITLED TO ALL THE RIGHTS
AND BENEFITS WHICH MAY BE PROVIDED FOR SUCH 'CLASS A' INSURED MEMBERS
IN AND BY THE CONSTITUTION OF SAID ORDER IN FORCE AND EFFECT AT THE
TIME ANY ACCIDENT OCCURS SUBSEQUENT TO SAID TIME AND DATE. 

"THIS CERTIFICATE, THE CONSTITUTION, BY-LAWS AND ARTICLES OF
INCORPORATION OF SAID ORDER, TOGETHER WITH THE APPLICATION FOR
INSURANCE SIGNED BY SAID INSURED MEMBER, SHALL CONSTITUTE THE CONTRACT
BETWEEN SAID ORDER AND SAID INSURED MEMBER AND SHALL GOVERN THE PAYMENT
OF BENEFITS, AND ANY CHANGES, ADDITIONS OR AMENDMENTS TO SAID
CONSTITUTION, BY-LAWS OR ARTICLES OF INCORPORATION, HEREAFTER DULY
MADE, SHALL BIND SAID ORDER AND SAID INSURED MEMBER AND HIS BENEFICIARY
OR BENEFICIARIES, AND SHALL GOVERN AND CONTROL THE CONTRACT IN ALL
RESPECTS. 

"IN WITNESS WHEREOF, WE HAVE AFFIXED OUR SIGNATURES AND THE SEAL OF
THE SUPREME COUNCIL, AT COLUMBUS, OHIO, THIS 21ST DAY OF DECEMBER A.D.
1922. 

"THIS CERTIFICATE SUPERSEDES ALL INSURANCE CERTIFICATES ISSUED OF A
PRIOR DATE BEARING THIS NUMBER. 

      S/ FRANK J. ROSSER

               SUPREME COUNSELOR. 

               S/ WALTER D. MURPHY

                         SUPREME SECRETARY." 

SEAL 

FN15  THE CIRCUIT COURT OF APPEALS EVIDENTLY RELIED, IN PART, ON
ARTICLE IV, SEC. 7, OF THE CONSTITUTION OF THE SOCIETY WHICH STATED
"NOR SHALL BENEFITS UNDER THIS ARTICLE BE PAYABLE UNLESS EXTERNAL,
VIOLENT AND ACCIDENTAL MEANS, PRODUCING BODILY INJURY, IS THE
PROXIMATE, SOLE AND ONLY CAUSE OF DEATH, DISABILITY OR LOSS" AND SAID: 

"THERE WERE NO ACCIDENTAL MEANS, BUT SIMPLY AN UNEXPECTED OR
ACCIDENTAL RESULT.  THE ADMINISTRATION OF THE DRUG DID NOT CAUSE THE
IDIOSYNCRASY, AND, IF THE BODILY INJURY WHICH RESULTED IN DEATH WAS
PRODUCED BY THE IDIOSYNCRASY AS A CAUSE OR MEANS, THEN THE
ADMINISTRATION OF THE DRUG WAS NOT THE SOLE CAUSE, AND THERE WOULD BE
NO LIABILITY UNDER THE POLICY."  64 F.2D 55, 59. 

RELATING TO A PROVISION IN THE SAME SECTION THAT "THIS ORDER SHALL
NOT BE LIABLE TO ANY PERSON FOR ANY BENEFITS FOR ANY DEATH,  ...
RESULTING FROM  ...  MEDICAL, MECHANICAL OR SURGICAL TREATMENT (EXCEPT
WHERE THE SURGICAL TREATMENT IS MADE NECESSARY BY THE ACCIDENT), THE
INTENTIONAL TAKING OF MEDICINE OR DRUGS"; THE CIRCUIT COURT OF APPEALS
SAID: 

"WE THINK THE ADMINISTERING OF THE DRUG MUST BE PLACED IN THE
CATEGORY OF MEDICAL OR SURGICAL TREATMENT. 

     .         .         .         .         . 

"IF THE ADMINISTERING OF THE DRUG IN THE CASE AT BAR DID NOT
CONSTITUTE MEDICAL OR SURGICAL TREATMENT, WE SHOULD BE AT A LOSS HOW TO
CLASSIFY SUCH ACT."  ID. AT 59-60. 

FN16  TYPICAL OF THESE CHANGES WERE THOSE RELATING TO THE
DISTRIBUTION, ON A CHANGED PERCENTAGE BASIS, OF FUNDS RAISED BY CALLS
TO MEET INSURANCE AND OTHER NEEDS; CHANGES IN THE CLASSIFICATION OF
EMPLOYMENTS TO BE TREATED AS HAZARDOUS ENOUGH TO REQUIRE THE LOWERING
OF RATES OF DISABILITY BENEFITS TO BE PAID TO MEMBERS EMPLOYED IN THEM;
AND A NEW PROVISION EXPRESSLY RECOGNIZING THE RIGHTS OF UNINSURED
MEMBERS TO CONTINUE AS MEMBERS OF THE SOCIETY, ALTHOUGH DISQUALIFIED
PHYSICALLY FROM TAKING ADVANTAGE OF INSURANCE BENEFITS.  THERE ALSO WAS
A CHANGE IN THE PROCEDURE GOVERNING FUTURE AMENDMENTS.    FN17  THE
1930 CONSTITUTION DEALT WITH THE FOLLOWING SUBJECTS AND IT IS IN THEM,
AS AMENDED FROM TIME TO TIME, THAT THERE CAN BE FOUND THE RIGHTS AND
OBLIGATIONS OF THE MEMBERS: 

ARTICLE I. NAME, OBJECTS, PROVISION FOR SUBORDINATE COUNCILS, GRAND
COUNCILS AND THE SUPREME COUNCIL.    ARTICLE II.  SUBORDINATE COUNCILS,
MEMBERSHIP, WITHDRAWALS, TRANSFER CARDS, DELINQUENCY, SUSPENSIONS,
REINSTATEMENT, UNINSURED MEMBERSHIP, OFFICERS AND ELECTIONS, DUTIES OF
OFFICERS, VACANCIES IN OFFICE, HONORARY TITLES, MEETINGS AND QUORUM,
SPECIAL SESSIONS, REPORTS, PER CAPITA TAX TO COUNCIL HAVING CONTROL AND
JURISDICTION OVER THE SUBORDINATE COUNCIL, AND REPRESENTATION OF
SUBORDINATE COUNCILS IN THE GRAND COUNCIL. 

ARTICLE III.  FUNDS, PROVISION FOR WIDOWS' AND ORPHANS' FUND,
ASSESSMENT FUND, DISTRIBUTION OF ASSESSMENT FUND, DEATH FUND,
DISABILITY FUND, GENERAL EXPENSE FUND AND RESERVE FUNDS.  THE
ASSESSMENT FUND IS CREATED BY ASSESSMENTS ON INSURED MEMBERS, IN GOOD
STANDING, TO PROVIDE A BASIS FOR MEETING ASSESSMENT CALLS.  WHEN CALLS
ARE MADE UPON SUCH MEMBERS, THE PROCEEDS ARE APPORTIONED 30% TO THE
DEATH FUND, 40% TO THE DISABILITY FUND, 5% TO THE RESERVE FUNDS AND 25%
TO THE GENERAL EXPENSE FUND. 

ARTICLE IV.  INSURANCE.  MEMBERS IN GOOD STANDING ARE SUBJECT TO
REGULAR QUARTERLY CALLS OF $3 PER INSURED MEMBER AND THE SUPREME
COUNSELOR HAS THE RIGHT TO MAKE AS MANY CALLS, IN AN AMOUNT NOT TO
EXCEED $3 EACH, AS MAY BE REQUIRED TO PAY IN FULL ALL VALID CLAIMS,
TOGETHER WITH EXPENSES INCURRED IN MAINTAINING THE SOCIETY AND
CONDUCTING ITS BUSINESS.  BASED ON THEIR PHYSICAL CONDITION, MEMBERS
BECOME INSURED MEMBERS OF CLASS A OR CLASS B. THOSE PROVIDING THE
POORER RISK ARE PUT IN CLASS B AND ARE ENTITLED TO BENEFITS OF BUT ONE
HALF THE AMOUNT OF THOSE PROVIDED FOR CLASS A MEMBERS.  THE BENEFITS
ARE IN THE NATURE OF INDEMNITIES AGAINST THE RESULT OF BODILY INJURIES
"EFFECTED THROUGH EXTERNAL, VIOLENT AND ACCIDENTAL MEANS,  ... WHICH
SHALL BE OCCASIONED BY THE SAID ACCIDENT ALONE AND INDEPENDENT OF ALL
OTHER CAUSES."  THERE ARE MANY LIMITATIONS UPON THIS LIABILITY AND, IN
CASE OF CERTAIN CHANGES IN THE OCCUPATION OR PHYSICAL CONDITION OF A
MEMBER, HIS RIGHT TO BENEFITS MAY BE REDUCED OR CANCELED.  THERE ARE
DOUBLE INDEMNITIES FOR INJURIES RESULTING FROM ACCIDENTS ON PASSENGER
TRAINS, ETC., AND THE COVERAGE GENERALLY IS RELATED TO RISKS NORMALLY
ENCOUNTERED BY COMMERCIAL TRAVELERS.  SPECIFIC EXEMPTIONS ARE MADE OF
INJURIES RESULTING FROM ENGAGING IN CERTAIN HAZARDOUS SPORTS OR FROM
BEING UNDER THE INFLUENCE OF LIQUOR, ETC.  THOSE WHO MAY BE NAMED AS
BENEFICIARIES ARE LIMITED TO SPECIFIED DEGREES OF FAMILY RELATIONSHIP. 
(THE FORM OF APPLICATION MAKES EXPRESS REFERENCE TO THE LIMITATIONS AS
TO BENEFICIARIES CONTAINED IN THE STATUTES OF OHIO.)  PROVISION IS MADE
FOR NOTICES AND PROOFS OF CLAIMS, FOR SURGICAL EXAMINATIONS, ETC.
THERE IS A STRICT PROHIBITION IN SEC. 11(QUOTED SUPRA) AGAINST THE
WAIVER OF PROVISIONS OF THE CONSTITUTION AND, IN THE SAME SECTION,
THERE APPEARS THE SIX-MONTH LIMITATION, HERE IN CONTROVERSY, UPON THE
TIME WITHIN WHICH TO BRING SUITS TO RECOVER BENEFITS AFTER A CLAIM HAS
BEEN DISALLOWED BY THE SUPREME EXECUTIVE COMMITTEE. 

ARTICLE V. GRAND COUNCILS, CHARTERS FOR SUBORDINATE COUNCILS, PER
CAPITA TAX PAYABLE TO GRAND COUNCILS AND DETAILED PROVISIONS FOR THE
OPERATION OF GRAND COUNCILS. 

ARTICLE VI.  SUPREME COUNCIL, CHARTERS FOR GRAND COUNCILS, OFFICERS
AND ELECTIONS AND DETAILED PROVISIONS FOR THE CONDUCT OF THE BUSINESS
OF THE SUPREME COUNCIL, INCLUDING THE ESTABLISHMENT OF THE SUPREME
EXECUTIVE COMMITTEE.  THIS COMMITTEE IS TO CONSIST OF SEVEN MEMBERS,
INCLUDING THE SUPREME COUNSELOR, SUPREME SECRETARY, SUPREME TREASURER
AND FOUR SPECIALLY ELECTED MEMBERS.  IT HAS LARGE POWERS OVER THE
BUSINESS AND ACTIVITIES OF THE SOCIETY.  AMONG THESE PROVISIONS ARE
THOSE OF EXAMINING INSURANCE CLAIMS, DECIDING UPON THEIR VALIDITY AND
ADJUSTING THEM. 

ARTICLE VII.  PROHIBITION OF THE USE OF MALT OR SPIRITUOUS LIQUORS IN
CONNECTION WITH MEETINGS OF THE SOCIETY. 

ARTICLE VIII.  MEMORIAL DAY IN HONOR OF THE SOCIETY'S FIRST SUPREME
SECRETARY. 

ARTICLE IX.  SPECIAL DUTY OF EVERY MEMBER TO REPORT THE NAME OF ANY
MEMBER WHO IS AN EXTRA HAZARDOUS, PHYSICAL OR MORAL RISK. 

ARTICLE X. PROHIBITION AGAINST DONATIONS OF FUNDS OF THE SOCIETY. 

ARTICLES XI, XII AND XIII.  TRIALS, PENALTIES AND APPEALS RELATING TO
VIOLATIONS OF THE CONSTITUTION, BY-LAWS AND RULES, AND THE DIVULGING OF
SECRETS OF THE SOCIETY OR CONDUCT UNBECOMING A GENTLEMAN. 

"ARTICLE XIV.  AMENDMENTS.  SECTION 1.  PROPOSED AMENDMENTS TO THIS
CONSTITUTION, BY-LAWS AND ARTICLES OF INCORPORATION SHALL BE SUBMITTED
IN WRITING AND FILED WITH THE SUPREME SECRETARY OF THE ORDER AT LEAST
SIX (6) MONTHS BEFORE THE CONVENING OF THE ANNUAL SESSION OF THE
SUPREME COUNCIL. 

"THE SUPREME SECRETARY OF THE ORDER SHALL, AT LEAST FOUR (4) MONTHS
BEFORE THE CONVENING OF SUCH ANNUAL SESSION, FORWARD TO ALL GRAND AND
SUBORDINATE COUNCILS A COPY OF THE PROPOSED AMENDMENTS. 

"SEC. 2.  NO AMENDMENT TO THE CONSTITUTION, BY-LAWS OR ARTICLES OF
INCORPORATION SHALL BE ADOPTED UNLESS IT RECEIVES THE AFFIRMATIVE VOTE
OF AT LEAST TWO-THIRDS (2-3)(2/3) OF THE MEMBERS OF THE SUPREME COUNCIL
PRESENT, ENTITLED TO VOTE, AT THE SESSION WHEN SUCH AMENDMENT IS VOTED
UPON. 

"SEC. 3.  ALL AMENDMENTS TO THIS CONSTITUTION, BY-LAWS AND ARTICLES
OF INCORPORATION SHALL TAKE EFFECT ON THE FIRST DAY OF SEPTEMBER
FOLLOWING THE SESSION OF THE SUPREME COUNCIL AT WHICH THEY WERE
ADOPTED, UNLESS THE DATE FOR BECOMING EFFECTIVE IS OTHERWISE SPECIFIED
BY THE SUPREME COUNCIL. 

"SEC. 4.  ALL RECOMMENDATIONS OR RESOLUTIONS ADOPTED BY THE SUPREME
COUNCIL WHICH ADDS (ADD) TO OR CONFLICT WITH THIS CONSTITUTION OR BY
LAWS SHALL BE PRESENTED TO THE SUPREME COUNCIL AT ITS NEXT ANNUAL
SESSION AS AN AMENDMENT TO THE CONSTITUTION OR BY-LAWS AND SHALL NOT
BECOME EFFECTIVE UNTIL SUCH AMENDMENTS HAVE BEEN APPROVED BY A TWO
THIRDS VOTE OF THE MEMBERS PRESENT ENTITLED TO VOTE."  (SECTION 4 WAS
ADDED BETWEEN 1922 AND 1931.) 

FN18  SEE NOTE 7, SUPRA. 

FN19  MODERN WOODMEN V. MIXER, 267 U.S. 544, 551. 

FN20  "THE POLICY OF THESE STATUTES (OF LIMITATION) IS TO ENCOURAGE
PROMPTITUDE IN THE PROSECUTION OF REMEDIES.  THEY PRESCRIBE WHAT IS
SUPPOSED TO BE A REASONABLE PERIOD FOR THIS PURPOSE, BUT THERE IS
NOTHING IN THEIR LANGUAGE OR OBJECT WHICH INHIBITS PARTIES FROM
STIPULATING FOR A SHORTER PERIOD WITHIN WHICH TO ASSERT THEIR
RESPECTIVE CLAIMS."  RIDDLESBARGER V. HARTFORD INS. CO., 7 WALL.  386,
390; APPROVED, THOMPSON V. PHENIX INS. CO., 136 U.S. 287, 298. 

SEE ALSO, APPEL V. COOPER INS. CO., 76 OHIO ST. 52, 80 N.E. 955;
BARTLEY V. NATIONAL BUSINESS MEN'S ASSN., 109 OHIO ST. 585, 143 N.E.
386; YOUNG V. ORDER OF UNITED COMMERCIAL TRAVELERS, 142 NEB. 566, 7
N.W.2D 81; BURLEW V. FIDELITY & CASUALTY CO. OF N.Y., 276 KY. 132, 122
S.W.2D 990; SEE NOTE, 121 A.L.R. 758; 29 AM. JUR.  1039. 

FN21  SECS. 2294-2305, S.D. REV. CODE, 1919; SEC. 33.0232, S.D. CODE
OF 1939. 

FN22  SEC. 2298, S.D. REV. CODE, 1919; SEC. 33.0232(4), S.D. CODE OF
1939. 

FN23  "NO ACTION AT LAW OR IN EQUITY SHALL BE BROUGHT TO RECOVER ON
THIS POLICY PRIOR TO THE EXPIRATION OF SIXTY DAYS AFTER PROOF OF LOSS
HAS BEEN FILED IN ACCORDANCE WITH THE REQUIREMENTS OF THIS POLICY, NOR
SHALL SUCH ACTION BE BROUGHT AT ALL UNLESS BROUGHT WITHIN TWO YEARS
FROM THE EXPIRATION OF THE TIME WITHIN WHICH PROOF OF LOSS IS REQUIRED
BY THE POLICY."  SEC. 3(14), C. 229, S.D.L., 1919, AT P. 235.  SEE
ALSO, SEC. 31.1702(14), S.D. CODE OF 1939.  THIS SECTION IS INDICATIVE
OF A STATE POLICY APPROVING THE SHORTENING OF THE GENERAL STATUTE AS
APPLIED TO ACCIDENT POLICIES, BUT IT DOES NOT APPLY DIRECTLY TO OR
AFFECT TRANSACTIONS OF FRATERNAL BENEFIT SOCIETIES BECAUSE THEY ARE
EXCLUDED FROM THE GENERAL INSURANCE STATUTES AND ARE PLACED UNDER THE
LICENSING PROVISIONS QUOTED IN NOTE 10, SUPRA.  THE PETITIONER'S
CONSTITUTION, FILED UNDER THAT REQUIREMENT, FULLY DISCLOSED ITS
PROVISION ON THIS SUBJECT.  SEC. 12(3), C. 229, S.D.L., 1919; SEC.
31.1708(3), S.D. CODE OF 1939. 

FN24  NOTES 11 AND 12, SUPRA. 

FN25  THE PRESENT COUNTERPART OF THAT STATUTE APPEARS IN SEC. 10.0705
OF THE SOUTH DAKOTA CODE OF 1939: 

"10.0705.  RESTRAINT OF LEGAL PROCEEDINGS; VOID.  EVERY PROVISION IN
A CONTRACT RESTRICTING A PARTY FROM ENFORCING HIS RIGHTS UNDER IT BY
USUAL LEGAL PROCEEDINGS IN ORDINARY TRIBUNALS OR LIMITING HIS TIME TO
DO SO, IS VOID." 

FN26  CITING ALSO FOR COMPARISON, ROYAL ARCANUM V. GREEN, 237 U.S.
531; HANCOCK NATIONAL BANK V. FARNUM, 176 U.S. 640; MCDERMOTT V.
WOODHOUSE, 87 N.J. EQ. 615, 618, 619, 101 A. 375, 376; AND FOR
REFERENCE, CANADA SOUTHERN R. CO. V. GEBHARD, 109 U.S. 527, 537-538;
HAWKINS V. GLENN, 131 U.S. 319, 329; NASHUA SAVINGS BANK V. ANGLO
AMERICAN CO., 189 U.S. 221, 229-230; HARRIGAN V. BERGDOLL, 270 U.S.
560, 564. 

FN27  ALASKA PACKERS ASSN. V. COMM'N, SUPRA, AT P. 547. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY,
AND MR. JUSTICE RUTLEDGE JOIN, DISSENTING. 

THE ORDER OF UNITED COMMERCIAL TRAVELERS IS A CORPORATION CHARTERED
UNDER THE LAWS OF OHIO WITH POWER TO DO A FRATERNAL INSURANCE
BUSINESS.  IT SELLS CONTRACTS OF INSURANCE IN OHIO.  SOUTH DAKOTA HAS
LICENSED THE CORPORATION TO SELL FRATERNAL INSURANCE POLICIES IN THAT
STATE.  UNDER THIS PERMISSION, THE CORPORATION HAS AN OFFICE, CALLED A
LOCAL COUNCIL, IN BLACK HILLS, SOUTH DAKOTA, VESTED WITH POWER TO
ADMINISTER "THE BUSINESS AND FRATERNAL AFFAIRS OF THE ORDER." 

THE INSURED, A CITIZEN AND RESIDENT OF SOUTH DAKOTA, APPLIED TO THE
BLACK HILLS OFFICE FOR MEMBERSHIP AND AN INSURANCE POLICY.  AFTER THE
APPLICATION HAD BEEN ACCEPTED AND AN INSURANCE CERTIFICATE SIGNED AT
THE PETITIONER'S HOME OFFICE IN OHIO, IT WAS "FORWARDED BY THE SAID
DEFENDANT CORPORATION TO SOUTH DAKOTA FOR DELIVERY TO THE INSURED." 
FROM THEN UNTIL HIS DEATH IN SOUTH DAKOTA, THE INSURED PAID HIS
PREMIUMS TO THE CORPORATION'S BLACK HILLS OFFICE.  DURING ALL THAT
PERIOD HIS BENEFICIARY LIVED IN THAT STATE.  THIS ACTION WAS BROUGHT IN
A COURT OF THAT STATE ON BEHALF OF THE BENEFICIARY AFTER THE
CORPORATION HAD REFUSED TO PAY THE CLAIM. 

THE ASSOCIATION DENIED LIABILITY BECAUSE THIS SUIT HAD NOT BEEN
COMMENCED WITHIN SIX MONTHS AFTER THE ASSOCIATION HAD DISALLOWED THE
BENEFICIARY'S CLAIM.  THIS IS REQUIRED BY THE CORPORATION'S
CONSTITUTION WHICH IS INCORPORATED BY REFERENCE INTO ITS CONTRACTS OF
INSURANCE.  AND IN A SERIES OF CASES, CITED IN THE COURT'S OPINION, THE
SUPREME COURT OF OHIO HAS HELD THAT SUITS BROUGHT IN OHIO COURTS ON
MUTUAL, STOCK COMPANY, OR FRATERNAL INSURANCE CONTRACTS, MAY BE BARRED
BY CONTRACTUAL ARRANGEMENTS BETWEEN THE PARTIES WHICH REQUIRE THAT SUIT
BE BROUGHT WITHIN A SHORTER PERIOD THAN THAT PROVIDED BY THE OHIO
LIMITATIONS STATUTES. 

BUT THE SOUTH DAKOTA SUPREME COURT HAS HELD THAT A STATUTE OF THAT
STATE WHICH PROVIDES THAT "EVERY PROVISION IN A CONTRACT RESTRICTING A
PARTY FROM ENFORCING HIS RIGHTS UNDER IT BY USUAL LEGAL PROCEEDINGS IN
ORDINARY TRIBUNALS OR LIMITING HIS TIME TO DO SO, IS VOID," S.D. CODE
SEC. 10.0705(1939), RENDERS THE LIMITATION PROVISION IN THIS CONTRACT
UNENFORCEABLE IN HER COURTS.  THIS COURT TODAY REVERSES THE SOUTH
DAKOTA DECISION ON THE GROUND THAT ITS REFUSAL TO ENFORCE THE PRIVATE
CONTRACT IS A DENIAL OF FULL FAITH AND CREDIT TO THE "PUBLIC ACTS,
RECORDS, AND JUDICIAL PROCEEDINGS" OF OHIO.  U.S. CONST., ART. IV, SEC.
1. 

FIRST.  MORE THAN ONE HUNDRED YEARS AGO THIS COURT SAID THAT TO
REQUIRE A STATE TO APPLY THE "LIMITATION LAWS" OF ANOTHER STATE RATHER
THAN ITS OWN WOULD REDUCE IT "TO A STATE OF VASSALAGE," PRESENTING THE
ANOMALY "OF A SOVEREIGN STATE GOVERNED BY THE LAWS OF ANOTHER
SOVEREIGN."  HAWKINS V. BARNEY'S LESSEE, 5 PET. 457, 466-467.  A FEW
YEARS LATER THE COURT WAS ASKED TO HOLD THAT THE FULL FAITH AND CREDIT
CLAUSE BARRED A STATE FROM APPLYING ITS OWN STATUTE OF LIMITATIONS IN A
SUIT BROUGHT ON A CAUSE OF ACTION WHICH HAD ARISEN IN ANOTHER STATE. 
ON THAT QUESTION THE COURT DID NOT "ENTERTAIN A DOUBT"; THE HOLDING WAS
THAT IT COULD NOT "BE EVEN PLAUSIBLY INFERRED" THAT THE STATE IN WHICH
THE SUIT WAS BROUGHT WAS DENIED THAT POWER BY THE FULL FAITH AND CREDIT
CLAUSE.  M'ELMOYLE V. COHEN, 13 PET. 312, 324, 328.  WHILE THE CASE
THEN UNDER CONSIDERATION INVOLVED A SUIT ON A JUDGMENT RENDERED IN
ANOTHER STATE, THE BROAD RULING WAS THAT, SO FAR AS THE FULL FAITH AND
CREDIT CLAUSE IS CONCERNED, A STATE HAS POWER TO APPLY ITS OWN STATUTE
OF LIMITATIONS IN EVERY KIND OF ACTION AND WITHOUT REGARD TO WHERE THE
CAUSE OF ACTION AROSE. 

THE CONSTITUTIONAL FORCE OF THE M'ELMOYLE REFUSAL TO REQUIRE A FORUM
STATE TO GIVE FULL FAITH AND CREDIT TO A FOREIGN STATE'S STATUTE OF
LIMITATIONS IS NOT WEAKENED IN THE SLIGHTEST BY THE FACT THAT SOME
STATES HAVE SEEN FIT TO ADOPT "BORROWING STATUTES."  SEE COPE V.
ANDERSON, ANTE, P. 461, AT NOTE 3.  FOR OTHER STATES, NOTABLY SOUTH
DAKOTA HERE, HAVE ADOPTED STATUTES WITH PURPOSES QUITE OPPOSITE TO THAT
OF BORROWING STATUTES.  AND UNDER THE M'ELMOYLE RULE, WHICHEVER
LIMITATIONS POLICY A FORUM STATE CHOOSES TO FOLLOW - TO BORROW OR TO
REFUSE TO BORROW - IT IS FREE, SO FAR AS THE FULL FAITH AND CREDIT
CLAUSE IS CONCERNED, TO DO SO. 

THE PLAIN EFFECT OF TODAY'S DECISION IS TO OVERRULE THE M'ELMOYLE
CASE.  AND IT DOES SO, DESPITE THE FACT THAT THE HOLDING OF THAT CASE
HAS NEVER BEFORE BEEN CITED WITH DISAPPROVAL; IN FACT, THAT HOLDING HAS
BEEN REPEATEDLY APPROVED AND REAFFIRMED THROUGHOUT THE YEARS SINCE IT
WAS DECIDED.  FN1  THE COURT DISTINGUISHES THE M'ELMOYLE RULE, AND IN
FACT RELIES GENERALLY FOR ITS DECISION UPON THE LINE OF DECISIONS IN
WHICH MODERN WOODMEN OF AMERICA V. MIXER, 267 U.S. 544, IS THE LEADING
CASE.  BUT THE STATUTE OF LIMITATIONS WAS NOT IN ISSUE IN THE MIXER
CASE, THE CASE ON WHICH IT RELIED, OR THE CASES WHICH HAVE SINCE RELIED
ON IT.  THE M'ELMOYLE CASE WAS NOT EVEN CITED IN THE COURT'S MIXER
OPINION; NOR DOES ANYTHING SAID IN IT DETRACT FROM THE RULE OF THE
M'ELMOYLE CASE THAT STATES CAN, DESPITE THE FULL FAITH AND CREDIT
CLAUSE, APPLY THEIR OWN STATUTES OF LIMITATION.  FN2  YET THE COURT NOW
TREATS THE MIXER CASE AS CONTROLLING, AND HOLDS THAT THE FULL FAITH AND
CREDIT CLAUSE DEPRIVES SOUTH DAKOTA OF POWER TO APPLY ITS OWN STATUTE
OF LIMITATIONS.  FN3 

BUT MORE THAN THAT, THE "STATE OF VASSALAGE" TO WHICH THE COURT'S
DECISION HERE REDUCES SOUTH DAKOTA IS NOT EVEN IN SUBORDINATION TO THE
LAWS OF ANOTHER STATE.  THE COURT'S OPINION MEANS THAT SOUTH DAKOTA
MUST YIELD TO A "LAW" ADOPTED BY THE MEMBERS OF AN OHIO-CREATED PRIVATE
FRATERNAL INSURANCE ASSOCIATION.  THAT "LAW," APPEARING ONLY IN THE
PRIVATE ASSOCIATION'S CONSTITUTION, PROVIDES IN THE SAME KIND OF
LANGUAGE THAT LEGISLATURES ORDINARILY USE IN THEIR STATUTES OF
LIMITATION THAT "NO SUIT OR PROCEEDING, EITHER AT LAW OR IN EQUITY,
SHALL BE BROUGHT TO RECOVER ANY BENEFITS UNDER THIS ARTICLE AFTER SIX
(6) MONTHS FROM THE DATE OF THE CLAIM FOR SAID BENEFITS IS DISALLOWED
BY THE SUPREME EXECUTIVE COMMITTEE." 

THE NEAREST THAT THIS PRIVATE ASSOCIATION'S "LAW" COMES TO BEING A
LAW OF OHIO IS THAT OHIO PERMITS BUT DOES NOT REQUIRE IT.  BECAUSE THE
PRIVATE ASSOCIATION'S CONSTITUTION WAS INCORPORATED BY REFERENCE IN THE
POLICY CONTRACT, INCLUDING THE CONSTITUTION'S "STATUTE OF LIMITATIONS,"
THE COURT NOW HOLDS THAT THIS CORPORATE "STATUTE OF LIMITATIONS"
PROHIBITS APPLICATION OF SOUTH DAKOTA'S STATUTE OF LIMITATIONS.  THUS
THE COURT'S HOLDING IS THAT AN OHIO PRIVATE CORPORATION'S LAWS HAVE A
HIGHER CONSTITUTIONAL STANDING THAN AN OHIO LAW OR JUDGMENT WOULD HAVE
UNLESS, AS SEEMS TO BE TRUE, M'ELMOYLE V. COHEN, SUPRA, AND SUBSEQUENT
CASES APPROVING IT ARE NOW BEING OVERRULED.  IT WOULD BE QUITE A
RADICAL DEPARTURE FROM THIS COURT'S PREVIOUS AUTHORITIES TO HOLD THAT
THE FULL FAITH AND CREDIT CLAUSE BARS A GOVERNMENT FROM APPLYING ITS
OWN STATUTES OF LIMITATIONS TO SUITS BROUGHT IN ITS COURTS, A POWER
WHICH, THIS COURT SAID IN ITS M'ELMOYLE DECISION, GOVERNMENTS HAVE
EXERCISED SINCE REMOTE ANTIQUITY.  ID. AT 327.  IT IS A FAR GREATER
DEPARTURE TO HOLD THAT A STATE'S LIMITATION STATUTE MUST TAKE SECOND
PLACE TO THE LIMITATIONS RULES ADOPTED BY A PRIVATELY OPERATED
CORPORATION. 

IT SHOULD COME AS QUITE A SURPRISE TO OHIO THAT ITS STATE POLICY CAN
SUPPLANT SOUTH DAKOTA'S STATUTE OF LIMITATIONS, SINCE OHIO'S HIGHEST
COURT FOLLOWS THE M'ELMOYLE RULE THAT "STATUTES OF LIMITATION RELATE TO
THE REMEDY, AND ARE, AND MUST BE, GOVERNED BY THE LAW OF THE FORUM; FOR
IT IS CONCEDED, THAT A COURT WHICH HAS POWER TO SAY WHEN ITS DOORS
SHALL BE OPENED, HAS ALSO POWER TO SAY WHEN THEY SHALL BE CLOSED." 
KERPER V. WOOD, 48 OHIO ST. 613, 622, 29 N.E. 501, 502.  AND THE
PRINCIPLE THERE ANNOUNCED WAS FOLLOWED BY THE OHIO SUPREME COURT AS
LATE AS 1943.  PAYNE V. KIRCHWEHM, 141 OHIO ST. 384, 48 N.E.2D 224; CF.
COPE V. ANDERSON, ANTE, P. 461. 

SECOND.  LEAVING ASIDE THE SUI GENERIS FEATURES OF A FORUM STATE'S
POWER OVER LIMITATIONS OF ACTIONS IN ITS COURTS, THE PRESENT HOLDING
VIOLATES OTHER ESTABLISHED RULES CONCERNING A STATE'S POWER TO GOVERN
ITS OWN LOCAL AFFAIRS AND TO PROTECT FROM OVERREACHING CONTRACTS
PERSONS IN WHOM THE STATE HAS A LEGITIMATE INTEREST.  SEE GRIFFIN V.
MCCOACH, 313 U.S. 498; PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S. 201.  I
HAD CONSIDERED IT WELL SETTLED THAT IF AN INSURANCE COMPANY DOES
BUSINESS AT ALL IN A STATE, ITS CONTRACTS ARE "SUBJECT TO SUCH VALID
REGULATIONS AS THE STATE MAY CHOOSE TO ADOPT."  SEE WHITFIELD V. AETNA
LIFE INS. CO., 205 U.S. 489, 495; KNIGHTS TEMPLARS' & MASONS' LIFE
INDEMNITY CO. V. JARMAN, 187 U.S. 197, 202; HANCOCK MUTUAL LIFE INS.
CO. V. WARREN, 181 U.S. 73, 75.  THIS CONCEPTION OF BROAD STATE POWER
HAS NOT BEEN LIMITED TO PARTICULAR KINDS OF LAWS OR PARTICULAR KINDS OF
CONTRACTS OF SPECIAL KINDS OF INSURANCE COMPANIES.  THUS IN REGARD TO A
MUTUAL INSURANCE COMPANY, THE COURT HAS HELD THE TERMS OF A POLICY
GOVERNED BY THE LAW OF MISSOURI WHERE THE CONTRACT WAS MADE IN THE FACE
OF A CONTRACT STIPULATION THAT THEY WERE TO BE GOVERNED BY THE LAWS OF
NEW YORK, THE MUTUAL COMPANY'S DOMICIL.  NEW YORK LIFE INS. CO. V.
CRAVENS, 178 U.S. 389.  FOR THIS COURT CONCLUDED FROM INFERENCES IT
FOUND IN THE MISSOURI COURT'S OPINION THAT COMPLIANCE WITH MISSOURI LAW
"WAS A CONDITION UPON THE RIGHT OF INSURANCE COMPANIES TO DO BUSINESS
IN THE STATE."  ID. AT 395.  IT FURTHER HELD THAT MISSOURI HAD THE SAME
CONTINUING POWER TO REGULATE THE BUSINESS CONTRACTS OF A FOREIGN
CORPORATION PERMITTED TO DO BUSINESS THERE AS IT HAD OVER THE CONTRACTS
OF DOMESTIC CORPORATIONS.  ID. AT 400-401.  AND WHEN A FOREIGN BUILDING
AND LOAN ASSOCIATION WHICH DID BUSINESS WITH ITS MEMBERS ONLY  FN4
SOUGHT TO AVOID MISSISSIPPI USURY LAWS BY SPECIFYING THAT A LOAN
CONTRACT WITH A MISSISSIPPI MEMBER WAS MADE IN NEW YORK WHERE THE
INTEREST CHARGED WAS NOT USURIOUS, THIS COURT HELD THAT MISSISSIPPI LAW
GOVERNED AND VOIDED THE CONTRACT.  NATIONAL MUTUAL BLDG. & LOAN ASSN.
V. BRAHAN, 193 U.S. 635.  THE COURT APPROVED THE CONCLUSION OF THE
SUPREME COURT OF MISSISSIPPI THAT THE ASSOCIATION, BY QUALIFYING TO DO
BUSINESS IN MISSISSIPPI, "HAD BECOME 'LOCALIZED' IN THE STATE, HAD
ACCEPTED THE LAWS OF THE STATE AS A CONDITION OF DOING BUSINESS THERE,
AND COULD NOT, NOR COULD (THE MISSISSIPPI MEMBER) 'ABROGATE BY
ATTEMPTED CONTRACT STIPULATIONS' THOSE LAWS.  SEE HANCOCK MUTUAL LIFE
INS. CO. V. WARREN, 181 U.S. 73."  ID. AT 650.  BECAUSE THE CONTRACT
WAS THUS CONTROLLED BY MISSISSIPPI RATHER THAN NEW YORK LAW, THE COURT
HELD THAT "THERE IS NO FOUNDATION FOR THE CONTENTION THAT FULL FAITH
AND CREDIT WERE NOT GIVEN TO THE PUBLIC ACTS AND RECORDS OF NEW YORK." 
ID. AT 647. 

THE COURT'S OPINION IN THE PRESENT CASE IS APPARENTLY INCONSISTENT
WITH THE FOREGOING CASES WHICH HAVE ESTABLISHED THAT STATE COURTS HAVE
A CONTINUING AUTHORITY TO EXECUTE THE PUBLIC POLICY OF THE STATE BY
REFUSING TO ENFORCE CONTRACT PROVISIONS OF FOREIGN CORPORATIONS
PERMITTED BY THE STATE TO DO BUSINESS THERE - EVEN THOUGH THOSE
CORPORATIONS DO BUSINESS WITH MEMBERS ONLY.  TODAY'S OPINION DOES
IMPLY, HOWEVER, THAT SOUTH DAKOTA OFFICIALS COULD HAVE EXCLUDED THIS
CORPORATION FROM DOING BUSINESS IN THE STATE OR COULD HAVE REVOKED ITS
LICENSE UPON DISCOVERY OF THE FOREIGN CORPORATION'S VIOLATION OF THE
LAWS OF THE STATE.  I CANNOT BELIEVE THAT THE FULL FAITH AND CREDIT
CLAUSE STAYS THE HANDS OF THE STATE COURTS AS INSTRUMENTS OF STATE
POWER IN PRIVATE LITIGATION ANY MORE THAN IT COULD FORESTALL STATE
AUTHORITIES FROM REVOKING THE ASSOCIATION'S LICENSE FOR PERSISTING IN
MAKING UNLAWFUL CONTRACTS. 

THIRD.  ANOTHER HANDLE OF SOUTH DAKOTA'S POWER OVER THIS CORPORATION
DERIVES, NOT FROM THE CORPORATION'S ACCEPTANCE OF SOUTH DAKOTA LAW AS A
CONTINUING CONDITION OF DOING BUSINESS, BUT FROM THE NUMBER AND
IMPORTANCE OF THE INCIDENTS INVOLVED IN THE MAKING AND THE PERFORMANCE
OF THE SPECIFIC CONTRACT HERE WHICH OCCURRED IN SOUTH DAKOTA.  UNLESS
THE COURT'S DECISION OVERRULES  FN5 THE LONG LINE OF CASES CITED IN THE
MARGIN  FN6  THIS INSURANCE CONTRACT WAS "MADE" AND TO BE PERFORMED IN
SOUTH DAKOTA, AND ITS VALIDITY IS GOVERNED BY THE LAW OF THAT STATE. 
THUS IN HARTFORD A. & I. CO. V. DELTA & PINE LAND CO., 292 U.S. 143,
150, MISSISSIPPI WAS REQUIRED TO ENFORCE AN INSURANCE CONTRACT,
UNLAWFUL IN THAT STATE, ALTHOUGH BOTH THE PARTIES DID BUSINESS THERE,
AND ALTHOUGH THE SUIT ON THE CONTRACT WAS BROUGHT THERE, BECAUSE THE
CONTRACT WAS VALID IN TENNESSEE, THE STATE WHERE THE CONTRACT WAS HELD
TO HAVE BEEN MADE AND WHICH HAD THE MAJOR CONNECTION WITH THE WHOLE
TRANSACTION.  FOR, SAID THE COURT, MISSISSIPPI "CANNOT EXTEND THE
EFFECT OF ITS LAWS BEYOND ITS BORDERS SO AS TO DESTROY OR IMPAIR THE
RIGHT OF CITIZENS OF OTHER STATES TO MAKE A CONTRACT NOT OPERATIVE
WITHIN ITS JURISDICTION, AND LAWFUL WHERE MADE."  ID. AT 149. 

BEFORE TODAY, CONTENTIONS THAT THE FULL FAITH AND CREDIT CLAUSE
OVERCOMES THE POWER OF A STATE OVER A CONTRACT MADE AND OPERATIVE THERE
HAVE BEEN FLATLY REJECTED BY THIS COURT.  THUS IN AMERICAN FIRE INS.
CO. V. KING LBR.  & MFG. CO., 250 U.S. 2, AN INSURANCE COMPANY WAS
AUTHORIZED BY PENNSYLVANIA, THE STATE OF ITS INCORPORATION, TO WRITE
FIRE INSURANCE ON PROPERTY OUTSIDE THAT STATE.  IT WAS NOT LICENSED TO
DO BUSINESS BY FLORIDA, BUT ACCEPTED INSURANCE APPLICATIONS THROUGH
INDEPENDENT BROKERS THERE.  UNDER THE LAW OF PENNSYLVANIA WHERE THE
APPLICATIONS WERE ACCEPTED AND THE POLICIES WRITTEN, BROKERS WERE
APPARENTLY NOT AUTHORIZED TO WAIVE CONTRACT PROVISIONS.  BUT UNDER
FLORIDA LAW THE BROKERS WERE DEEMED AGENTS OF THE PENNSYLVANIA COMPANY
WITH POWER TO BIND IT BY WAIVERS.  IN ANSWER TO THE CONTENTION THAT THE
FLORIDA RULING DENIED FULL FAITH AND CREDIT TO THE LAW OF PENNSYLVANIA,
THIS COURT SAID THAT THE CASE DOES NOT 

"  ...  PRESENT AN ATTEMPT OF THE FLORIDA LAW TO INTRUDE ITSELF INTO
...  PENNSYLVANIA AND CONTROL TRANSACTIONS THERE; IT PRESENTS SIMPLY A
PENNSYLVANIA CORPORATION HAVING THE PERMISSION OF THAT STATE TO
UNDERWRITE POLICIES ON PROPERTY OUTSIDE OF THE STATE AND THE EXERCISE
OF THE RIGHT IN FLORIDA.  AND NECESSARILY IT HAD TO BE EXERCISED IN
ACCORDANCE WITH THE LAWS OF FLORIDA.  THERE WAS NO LAW OF PENNSYLVANIA
TO THE CONTRARY - NO LAW OF PENNSYLVANIA WOULD HAVE POWER TO THE
CONTRARY.  THERE IS NO FOUNDATION, THEREFORE, FOR THE CONTENTION THAT
FULL FAITH WAS NOT GIVEN TO A LAW OF PENNSYLVANIA  ...  "  ID. AT 10. 

FOURTH.  IN INTERPRETING THE FULL FAITH AND CREDIT CLAUSE THIS COURT
HAS REPEATEDLY INSISTED THAT IT WOULD WEIGH ALL THE INTERESTS OF EACH
STATE INVOLVED BEFORE HOLDING THAT THE FULL FAITH AND CREDIT CLAUSE
QUALIFIED ONE STATE'S POWER TO GOVERN ITS OWN AFFAIRS.  SEE PINK V.
A.A.A. HIGHWAY EXPRESS, SUPRA, 210-211, AND CASES THERE CITED; MAGNOLIA
PETROLEUM COMPANY V. HUNT, 320 U.S. 430, 436-437.  I HAVE RECITED THE
MANY BASES FOR SOUTH DAKOTA'S LEGITIMATE INTEREST.  WHAT IS THE
INTEREST OF OHIO TO WHICH THE COURT HOLDS SOUTH DAKOTA MUST GIVE FULL
FAITH AND CREDIT? 

IT MAY BE THAT THE COURT'S VIEW IS THAT OHIO HAS AN INTEREST IN
SECURING UNIFORMITY OF RIGHTS AND OBLIGATIONS AMONG ALL THE
POLICYHOLDER-MEMBERS THROUGHOUT THE COUNTRY.  FOR, SAYS THE COURT, "IF
FULL FAITH AND CREDIT ARE NOT GIVEN  ...  , THE MUTUAL RIGHTS AND
OBLIGATIONS OF THE MEMBERS OF SUCH SOCIETIES ARE LEFT SUBJECT TO THE
CONTROL OF EACH STATE.  THEY BECOME UNPREDICTABLE AND ALMOST INEVITABLY
UNEQUAL." 

IT IS TRUE THAT IN SITUATIONS INVOLVING THE LIABILITY OF STOCKHOLDERS
FOR ASSESSMENT OBLIGATIONS IMPOSED BY A CORPORATE CHARTER OR THE LAWS
OF A CHARTERING STATE, THE ASSESSMENT OBLIGATION HAS BEEN HELD TO BE
GOVERNED BY THE LAWS OF THE CHARTERING STATE.  CONVERSE V. HAMILTON,
224 U.S. 243; BRODERICK V. ROSNER, 294 U.S. 629.  AND ASSESSMENTS
AGAINST FRATERNAL AS WELL AS MUTUAL INSURANCE POLICYHOLDERS BASED ON
OWNERSHIP RIGHTS AND OBLIGATIONS WHICH THEIR INSURANCE POLICIES, LIKE
STOCK HOLDINGS, REPRESENT, HAVE BEEN SIMILARLY HELD TO BE CONTROLLED BY
THE LAW OF THE STATE OF THE CORPORATION'S DOMICIL.  ROYAL ARCANUM V.
GREEN, 237 U.S. 531; HARTFORD LIFE INS. CO. V. BARBER, 245 U.S. 146;
HARTFORD LIFE INS. CO. V. IBS, 237 U.S. 662.  FOR INSOFAR AS A MUTUAL
OR FRATERNAL INSURANCE POLICYHOLDER ASSUMES THE ASSESSMENT OBLIGATION
WHICH A STOCKHOLDER MAY BEAR IN OTHER COMPANIES, HE UNDERWRITES THE
RISK THAT THE CORPORATION OF WHICH HE IS AN OWNER MIGHT BECOME
INSOLVENT.  AND THAT INSOLVENCY, PARTICULARLY OF AN INSURANCE COMPANY,
WOULD OCCUR AND GENERALLY BECOME A RESPONSIBILITY OF THE CHARTERING
STATE WHERE THE PRINCIPAL BUSINESS IS CONDUCTED.  THE CONTINGENCY OF
INSOLVENCY HAS BEEN THOUGHT TO GIVE THE CHARTERING STATE GREATER AND
MORE DIRECT INTEREST IN THE EXTRA-TERRITORIAL COLLECTION OF ASSESSMENTS
AGAINST STOCKHOLDERS OF CORPORATIONS, THAN A STATE HAS IN THE DAY-TO
DAY BUSINESS TRANSACTIONS IN WHICH A CORPORATION CHARTERED BY IT
ENGAGES IN OTHER STATES.  FN7 

THIS LINE OF DISTINCTION HAS BEEN CLEARLY MARKED BY THE CONTRARY
RESULT THIS COURT HAS REACHED IN CASES CONCERNING DAY-TO-DAY BUSINESS
CONTRACTS MADE BY FOREIGN NON-FRATERNAL MUTUAL INSURANCE AND MEMBERSHIP
LOAN COMPANIES WITH THEIR POLICYHOLDERS AND MEMBER-BORROWERS.  IN NEW
YORK LIFE INS. CO. V. CRAVENS, SUPRA, AT 400, IT WAS URGED THAT THE
FACT THAT THE MUTUAL INSURANCE COMPANY THERE WAS "'THE ADMINISTRATOR OF
A FUND COLLECTED FROM THE POLICY HOLDERS IN DIFFERENT STATES AND
COUNTRIES FOR THEIR BENEFIT,'" DEMONSTRATED "THE NECESSITY OF A UNIFORM
LAW TO BE STIPULATED BY THE PARTIES EXEMPT FROM THE INTERFERENCE OR THE
PROHIBITION OF THE STATE WHERE THE INSURANCE COMPANY IS DOING
BUSINESS."  THIS CONTENTION WAS EMPHATICALLY REJECTED.  AND IN NATIONAL
MUTUAL BLDG. & LOAN ASSN. V. BRAHAN, SUPRA, 636, 650, THIS COURT,
PLACING CONSIDERABLE RELIANCE UPON ITS PREVIOUS CRAVEN DECISION, HELD
THAT CONTRACTS OF A MEMBERSHIP LOAN ASSOCIATION WHOSE CONTROLLING AND
CENTRAL PURPOSE, LIKE THE DISTINGUISHING "FEATURE" RELIED UPON BY THE
COURT HERE, WAS "TO MAKE LOANS ONLY TO ITS MEMBERS, AND FOR  ...
ACCUMULATING A FUND TO BE RETURNED TO ITS MEMBERS," WERE, DESPITE THE
FULL FAITH AND CREDIT CLAUSE, SUBJECT TO THE LAW OF A STATE IN WHICH
THE ASSOCIATION WAS DOING BUSINESS AS A FOREIGN CORPORATION. 

IT SEEMS APPARENT FROM THESE AUTHORITIES THAT OHIO'S INTEREST IN
UNIFORM ADMINISTRATION OF A CORPORATION'S CONTRACT OBLIGATIONS FOR THE
FUNDS OF A COMPANY CREATED UNDER ITS LAWS IS NOT ENTITLED TO FULL FAITH
AND CREDIT MERELY BECAUSE OF THE COMMUNAL INTEREST OF POLICYHOLDER
MEMBERS IN THAT FUND.  AND THE FACT, SO HEAVILY STRESSED BY THE COURT,
THAT THE CORPORATION WAS INCORPORATED UNDER THE LAWS OF OHIO SO THAT
ITS CONTINUED EXISTENCE DEPENDS UPON THAT LAW IS PLAINLY INSUFFICIENT
BASIS FOR A CONTENTION THAT, THEREFORE, OHIO'S INTEREST DEMANDS FULL
FAITH AND CREDIT FOR THIS CONTRACT PROVISION.    ACTUALLY, IT IS NOT
OHIO'S INTEREST IN THE UNIFORM ADMINISTRATION OF THE COMPANY'S FUNDS TO
WHICH THE COURT GIVES FULL FAITH AND CREDIT.  FOR OTHERWISE, I SHOULD
THINK, THE OPINION WOULD CITE AND DISTINGUISH THESE CASES WHICH
ESTABLISH THAT THIS INTEREST IS NOT ONE ENTITLED TO FULL FAITH AND
CREDIT.  IT IS THE LIMITATIONS "LAW" OF THE CORPORATE CONSTITUTION
ENACTED TO PROTECT ITS OWN INTEREST, NOT THE STATUTES OF OHIO, WHICH
ARE HELD TO BAR THIS SUIT BECAUSE IT WAS NOT FILED WITHIN SIX MONTHS. 
THUS IT SEEMS MANIFEST THAT THE COURT IS GIVING FULL FAITH AND CREDIT
TO THE "LAWS" AND THE INTEREST OF THE OHIO CORPORATION.  AND THE COURT
DOES THIS ON THE THEORY THAT THE FRATERNAL CORPORATION'S CONSTITUTION
WHICH GOVERNS THE TERMS OF ITS CONTRACTS IS "SUBJECT TO AMENDMENT
THROUGH THE PROCESSES OF A REPRESENTATIVE FORM OF GOVERNMENT AUTHORIZED
BY THE LAW OF THE STATE OF INCORPORATION."  APPARENTLY, IT IS FELT THAT
THE INDIVIDUAL SOUTH DAKOTA POLICYHOLDER-MEMBER CAN PROTECT HIMSELF
FROM OVERREACHING CONTRACTS WITHIN THE FRAMEWORK OF THIS
"REPRESENTATIVE" INTRACORPORATE GOVERNMENT WHICH IS SUBJECT TO WHATEVER
REGULATION OHIO CHOOSES TO IMPOSE.  UNTIL TODAY I HAD NEVER CONCEIVED
OF THE FEDERAL CONSTITUTION AS REQUIRING THE FORTY-EIGHT STATES TO GIVE
FULL FAITH AND CREDIT TO THE LAWS OF PRIVATE CORPORATIONS ON THE THEORY
THAT A POLICYHOLDER-MEMBER'S ABILITY TO PROTECT HIMSELF THROUGH INTRA
CORPORATE POLITICS MAKES STATE PROTECTION OF HIM UNNECESSARY AND
UNCONSTITUTIONAL.  IT IS A NAIVE ASSUMPTION THAT A POLICYHOLDER-MEMBER
OF A FRATERNAL CORPORATION LIKE THIS DOES NOT NEED PROTECTION FROM HIS
STATE.  MOREOVER, IF VALID, THIS ASSUMPTION WOULD APPLY WITH EQUAL
LOGIC TO IMMUNIZE THESE FRATERNAL CORPORATIONS FROM THE LAWS OF THEIR
DOMICILS. 

THE CONCLUSION REACHED BY THE COURT THAT FRATERNAL INSURANCE
COMPANIES ARE ENTITLED TO UNIQUE CONSTITUTIONAL PROTECTION IS NOT
JUSTIFIED BY THE LANGUAGE OF THE CONSTITUTION NOR BY THE NATURE OF
THEIR ENTERPRISE.  AND OUR PREVIOUS DECISIONS CONCERNING FRATERNAL
INSURANCE COMPANIES DO NOT SUPPORT THE CONCLUSION WHICH THE COURT DRAWS
FROM THE SUPERFICIAL DISTINGUISHING CHARACTERISTICS WHICH THESE
COMPANIES POSSESS. 

AS I HAVE POINTED OUT, THOSE CASES WHICH HOLD THAT ASSESSMENTS
AGAINST FRATERNAL POLICYHOLDERS IN THEIR CAPACITY AS STOCKHOLDERS ARE
GOVERNED BY THE LAW OF THE COMPANY'S DOMICIL, HAVE NO RELATION TO A
FRATERNAL COMPANY'S OBLIGATION TO A BENEFICIARY OF AN INSURANCE
CONTRACT.  MOREOVER, IN SOVEREIGN CAMP W.O.W. V. BOLIN, 305 U.S. 66,
HEAVILY RELIED ON BY THE COURT, THE FRATERNAL ASSOCIATION WAS FREED
FROM LIABILITY IN A STATE IN WHICH IT WAS NOT AUTHORIZED TO DO BUSINESS
BECAUSE A JUDGMENT OF THE HIGHEST COURT OF THE STATE WHICH HAD
CHARTERED THE ASSOCIATION HAD DECLARED, IN A CLASS SUIT TO WHICH THE
CLAIMANT HAD BEEN, IN EFFECT, A PARTY, THAT THE POLICY SUED ON HAD BEEN
ISSUED ULTRA VIRES.  THUS THE BOLIN CASE IS MERELY A FAMILIAR EXAMPLE
OF ENFORCEMENT OF RES JUDICATA UNDER THE FULL FAITH AND CREDIT CLAUSE. 
A JUDGMENT OF ANY STATE, WHETHER CHARTERING STATE OR NOT, WOULD BE
ENTITLED TO THE SAME RESPECT.  HERE, OF COURSE, THERE IS NO JUDGMENT TO
WHICH THE CLAIMANT WAS A PARTY WHICH IS ENTITLED TO FULL FAITH AND
CREDIT.  AND THE POWER OF THE OHIO CORPORATION, SO FAR AS OHIO LAW IS
CONCERNED, TO MAKE A CONTRACT CONSISTENT WITH SOUTH DAKOTA POLICY IS
UNQUESTIONED. 

THE OTHER CASE RELIED ON HEAVILY BY THIS COURT IS MODERN WOODMEN OF
AMERICA V. MIXER, SUPRA.  IN THAT CASE MIXER, THE BENEFICIARY, LIVED IN
NEBRASKA.  WHILE THE RECORD WAS NOT WHOLLY CLEAR, THE INSURED HAD
APPARENTLY PREVIOUSLY LIVED IN SOUTH DAKOTA, AND THE CERTIFICATE SEEMS
TO HAVE BEEN "ISSUED" THERE.  A BY-LAW OF THE WOODMEN, AN ILLINOIS
ASSOCIATION, PROVIDED THAT ITS CERTIFICATE SHOULD INSURE AGAINST DEATH
BUT THAT "LONG CONTINUED ABSENCE OF ANY MEMBER UNHEARD OF SHALL NOT ...
GIVE ANY RIGHT TO RECOVER ON ANY BENEFIT CERTIFICATE."  NEBRASKA,
WHERE MIXER BROUGHT THE SUIT, BUT IN WHICH STATE THE CONTRACT HAD NOT
BEEN MADE, HAD A RULE OF EVIDENCE THAT A PRESUMPTION OF DEATH ARISES
FROM SEVEN YEARS UNEXPLAINED ABSENCE.  APPARENTLY CONSIDERING THE BY
LAW "UNREASONABLE," THE SUPREME COURT OF NEBRASKA ENFORCED ITS LONG
CONTINUED ABSENCE RULE OF EVIDENCE AND HELD THE ASSOCIATION LIABLE. 
THE SUPREME COURT OF ILLINOIS, WHERE THE ASSOCIATION WAS CHARTERED, HAD
HELD THE BY-LAW REASONABLE IN THAT IT MERELY SHOWED A PURPOSE OF THE
ASSOCIATION TO LIMIT ITS INSURANCE TO DEATH RATHER THAN TO EXTEND IT TO
LONG-CONTINUED ABSENCES.  STEEN V. MODERN WOODMEN OF AMERICA, 296 ILL.
104, 129 N.E. 546.  IT WAS ON THIS RECORD THAT THIS COURT REVERSED THE
NEBRASKA COURT'S DECISION IN THE MIXER CASE. 

THIS REVERSAL CAN BE JUSTIFIED ON THE FACTS OF THE MIXER CASE, WHICH
ARE CLEARLY DIFFERENT FROM THE FACTS IN THE CASE BEFORE US.  THERE WAS
NO CONFLICT IN MIXER BETWEEN THE POLICY OF THE STATE WHERE THE CONTRACT
WAS MADE, AND ILLINOIS, THE STATE OF THE ASSOCIATION'S DOMICIL.  FOR
THE CONTRACT APPARENTLY HAD BEEN MADE IN A THIRD STATE, SOUTH DAKOTA,
CONSISTENTLY WITH THE LAWS OF THAT STATE.  NOR DOES IT APPEAR FROM THE
RECORD OF THAT CASE THAT THE ASSOCIATION HAD BEEN LICENSED TO DO
BUSINESS SO AS TO ACCEPT EITHER THE LAW OF THE STATE WHERE THE CONTRACT
WAS MADE, OR THAT OF NEBRASKA WHERE THE SUIT WAS BROUGHT.  FINALLY, AS
I HAVE ALREADY INDICATED, NO STATUTE OF LIMITATIONS WAS INVOLVED IN THE
MIXER CASE. 

BUT IT IS SAID THAT LANGUAGE OF THE MIXER CASE MEANS THAT THE
OBLIGATIONS OF A FRATERNAL INSURANCE CORPORATION ARE TO BE GOVERNED BY
THE LAW OF ITS DOMICIL.  IF THIS LANGUAGE MEANS THAT SUCH AN
ASSOCIATION IS PRIVILEGED TO LIVE ABOVE THE LAW OF THE STATE WHERE IT
DOES BUSINESS, MAKES CONTRACTS, AND IS SUED, I THINK THAT LANGUAGE
SHOULD BE REPUDIATED.  THE PURPORTED DIFFERENCES BETWEEN FRATERNAL
INSURANCE COMPANIES AND OTHER RECIPROCAL, CO-OPERATIVE AND MUTUAL
INSURERS, ARE TOO FRAGMENTARY AND INCONSEQUENTIAL TO JUSTIFY ANY
CONSTITUTIONAL DIFFERENCE IN TREATMENT.  CF. HOOPESTON CANNING CO. V.
CULLEN, 318 U.S. 313. 

NEITHER IN THE MIXER CASE NOR IN THE PRESENT ONE DOES THE COURT
ATTEMPT TO DEMONSTRATE, AND I SERIOUSLY QUESTION THAT A DEMONSTRATION
IS POSSIBLE, THAT THE INSURANCE BUSINESS OF A FRATERNAL COMPANY IS
CONDUCTED DIFFERENTLY IN ANY IMPORTANT WAY FROM THAT OF A MUTUAL,
RECIPROCAL, OR JOINT STOCK COMPANY.  THE INSURANCE PHASE OF THIS
COMPANY IS SET APART FROM THE FRATERNAL PHASE AFTER ELECTION TO
MEMBERSHIP, EVEN THOUGH PAYMENT OF ASSESSMENTS LEVIED FOR INSURANCE
PURPOSES IS MADE COMPULSORY.  THE PROVISIONS OF ITS CONSTITUTION SHOW
THAT INSURANCE TERMS AND CONDITIONS ARE PRECISELY LIKE THOSE OF NON
FRATERNAL COMPANIES.  INSURANCE FUNDS ARE ADMINISTERED ON A BUSINESS
BASIS, AND THEY CANNOT BE USED FOR FRATERNAL PURPOSES.  IN SHORT, THE
INSURANCE PROGRAM AND ACTIVITIES REVEAL THAT THIS IS AN INSURANCE
COMPANY, RUN LIKE OTHER INSURANCE COMPANIES.  THE ONLY NON-PAPER
DIFFERENCE IS THAT INSURANCE IS SOLD ONLY TO MEMBERS OF THE
FRATERNITY. 

NOR IS IT APPARENT TO ME THAT AN INDIVIDUAL POLICYHOLDERMEMBER IN A
REMOTE COMMUNITY EXERCISES ANY SIGNIFICANT INFLUENCE ON THE TECHNICAL
INSURANCE ASPECTS OF A FRATERNAL COMPANY'S BUSINESS.  CERTAINLY, HE CAN
NO MORE CONTROL THE POLICY CONTRACT PROVISIONS THAN COULD A MUTUAL
POLICYHOLDER OR A MEMBER OF A MEMBERSHIP LOAN ASSOCIATION.  AND THE
INDIVIDUAL MEMBER WOULD SHARE AS MUCH AND NO MORE IN THE FRATERNAL
COMPANY'S GAINS FROM OVERREACHING CONTRACTS AS WOULD PARTICIPANTS IN
THESE INDISTINGUISHABLE ASSOCIATIONS. 

THAT FRATERNAL-ORDER INSURANCE BUSINESSES SUCH AS PETITIONER'S ARE OF
A MAGNITUDE TO MOVE EACH STATE TO REGULATE THEM SO AS TO PROTECT ITS
CITIZENS CAN HARDLY BE DOUBTED.  THE BEST INFORMATION OBTAINABLE SHOWS
THAT IN 1944 FRATERNAL LIFE INSURANCE BUSINESSES IN THE UNITED STATES
HAD AGGREGATE ASSETS OF ALMOST $1,500,000,000; INCOME OF $255,600,000;
$6,794,300,000 INSURANCE IN FORCE; AND 7,582,000 OUTSTANDING
CERTIFICATES.  DURING 1944 THEY SPENT $43,300,000 FOR AGENTS AND
MANAGEMENT.  FN8  THERE IS, THUS, EVERY REASON FOR GIVING THE SAME
FORCE AND EFFECT TO STATE REGULATION OF FRATERNAL INSURANCE COMPANIES
AS IS GIVEN REGULATION OF ALL OTHER INSURANCE BUSINESSES. 

FIFTH.  I FEAR THAT IT MAY BE SIGNIFICANT THAT THE COURT HAS
CONSPICUOUSLY REFRAINED FROM STATING IN UNMISTAKABLE TERMS THAT ITS NEW
DOCTRINE APPLIES ONLY TO FRATERNAL INSURANCE COMPANIES.  IF, AS THE
COURT HOLDS, THE INTEREST OF OHIO OR OF ITS CORPORATE CREATURE DOES
OUTWEIGH THE INTEREST OF EVERY STATE IN WHICH THAT CREATURE DOES
BUSINESS, I SEE NO SOUND BASIS IN THE FACTS OR IN THE AUTHORITIES CITED
BY THE COURT FOR DECLINING TO APPLY THIS FORMULA TO ALMOST EVERY TYPE
OF BUSINESS CORPORATION CREATED IN ONE STATE AND DOING BUSINESS IN
ANOTHER. 

THE EFFECT OF SUCH A DOCTRINE ON THE RIGHTS OF STATES TO GOVERN
THEMSELVES IS GRAPHICALLY DEMONSTRATED BY THE INSURANCE BUSINESS.  THE
FIVE LARGEST LEGAL RESERVE LIFE INSURANCE COMPANIES IN THE UNITED
STATES, WITH TOTAL ASSETS OF APPROXIMATELY $15,000,000,000, HAVE THEIR
HOME OFFICES IN OR NEAR NEW YORK AND CONNECTICUT.  UNITED STATES V.
SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533, 541.  THE RESULT OF THE
COURT'S OPINION, IF LATER CARRIED TO ITS LOGICAL CONCLUSION, WOULD BE
THAT THE POLICY OBLIGATIONS OF ALL OF THESE COMPANIES, IN WHATEVER
STATE ASSUMED, WOULD BE GOVERNED BY NEW YORK OR CONNECTICUT LAW OR THAT
OF NEARBY STATES, AND THAT ALL OF THE OTHER STATES WOULD BE DEPRIVED OF
POWER TO PASS LEGISLATION BELIEVED BY THEM TO BE NECESSARY TO PROTECT
THEIR OWN CITIZENS AGAINST UNCONSCIONABLE CONTRACTS.  BY PERMITTING ITS
INSURANCE CORPORATIONS, PARTICULARLY MUTUAL COMPANIES, TO MAKE
CONTRACTS BARRING AN INSURED'S ACCESS TO STATE COURTS, NEW YORK, FOR
EXAMPLE, COULD THUS RENDER ALL THE OTHER STATES HELPLESS TO PROVIDE A
JUDICIAL HAVEN FOR THEIR OWN WRONGED CITIZENS. 

SUCH A DOCTRINE IS NOT ONLY NOVEL; IT IS REVOLUTIONARY.  I THINK THE
DOCTRINE VIOLATES THE VERY CONSTITUTION THAT IT IS OUR DUTY TO
INTERPRET.  FOR THE COURT TODAY, IN PART, NULLIFIES A GREAT PURPOSE OF
THE ORIGINAL CONSTITUTION, AS LATER EXPRESSED IN THE TENTH AMENDMENT,
TO LEAVE THE SEVERAL STATES FREE TO GOVERN THEMSELVES IN THEIR DOMESTIC
AFFAIRS.  HEREAFTER, IF TODAY'S DOCTRINE SHOULD BE CARRIED TO ITS
LOGICAL END, THE STATE IN WHICH THE MOST POWERFUL CORPORATIONS ARE
CONCENTRATED, OR THOSE CORPORATIONS THEMSELVES, MIGHT WELL BE ABLE TO
PASS LAWS WHICH WOULD GOVERN CONTRACTS MADE BY THE PEOPLE IN ALL OF THE
OTHER STATES. 

I WOULD AFFIRM THIS JUDGMENT. 

FN1  TOWNSEND V. JEMISON, 9 HOW.  407, 410; BANK OF ALABAMA V.
DALTON, 9 HOW.  522, 528; BACON V. HOWARD, 20 HOW.  22, 25; CHRISTMAS
V. RUSSELL, 5 WALL.  290, 300; AMY V. DUBUQUE, 98 U.S. 470, 471;
CAMPBELL V. HOLT, 115 U.S. 620, 626; CAMPBELL V. HAVERHILL, 155 U.S.
610, 618.  SEE ALSO CHASE SECURITIES CORP. V. DONALDSON, 325 U.S. 304;
MICHIGAN INS. BANK V. ELDRED, 130 U.S. 693; BANK OF UNITED STATES V.
DONNALLY, 8 PET. 361; M'CLUNY V. SILLIMAN, 3 PET. 270. 

FN2  THE COURT ALSO REFERS TO HARTFORD A. & I. CO. V. DELTA & PINE
LAND CO., 292 U.S. 143, AND HOME INS. CO. V. DICK, 281 U.S. 397.  THE
COURT DOES NOT REST ITS DECISION ON THE DUE PROCESS CLAUSE.  BUT THE
DECISIONS IN THOSE CASES WENT ON THE DUE PROCESS CLAUSE, AND, FAR FROM
SUPPORTING THE HOLDINGS HERE, ARE ACTUALLY INCONSISTENT WITH IT.  IF
THEY ARE TO BE FOLLOWED THEY STAND FOR THE PROPOSITIONS THAT A STATE
WHICH HAS NO INTEREST AT ALL, OR ONLY A MINOR INTEREST, IN THE
TRANSACTION SUED ON CANNOT, BECAUSE OF THE MERE ACCIDENT OF SUPPLYING
THE JUDICIAL FORUM, APPLY ITS OWN STATUTE OF LIMITATIONS SO AS TO
DEFEAT THE TERMS OF A CONTRACT VALID IN THE JURISDICTION WHERE THE
OBLIGATION WAS INITIATED, NEGOTIATED, AND COMPLETED.  THE TWO CASES
CAST CONSIDERABLE DOUBT ON OHIO'S POWER TO HAVE APPLIED ITS LIMITATION
STATUTE HAD THIS SUIT BEEN FILED THERE; CONVERSELY, THEY PROVIDE RATHER
PERSUASIVE ARGUMENT TO SUPPORT A CONTENTION THAT SOUTH DAKOTA'S STATUTE
SHOULD CONTROL LIABILITY HERE IN VIEW OF THAT STATE'S CONSIDERABLE
INTEREST, EVEN BEYOND THAT OF PROVIDING THE FORUM OF THIS ACTION. 

FN3  THE COURT TAKES THE VIEW THAT IT IS WELL ESTABLISHED THAT A
CONTRACT PROVISION LIMITING THE TIME WITHIN WHICH SUIT CAN BE BROUGHT
MAY OVERRIDE A STATE'S STATUTE OF LIMITATIONS PROVIDING A LONGER
PERIOD.  FOR THIS PROPOSITION IT CITES RIDDLESBARGER V. HARTFORD INS.
CO., 7 WALL.  386.  THAT CASE CAME FROM A FEDERAL CIRCUIT COURT IN
MISSOURI WHERE THE SOLE PROBLEM POSED OR DECIDED WAS WHETHER UNDER
MISSOURI LAW OR GENERAL FEDERAL LAW A CONTRACT LIMITATION VIOLATED THE
POLICY OF MISSOURI EXPRESSED IN ITS STATUTE OF LIMITATIONS.  BUT SEE
GUARANTY TRUST CO. V. YORK, 326 U.S. 99.  THERE WAS NO FULL FAITH AND
CREDIT QUESTION, DUE PROCESS QUESTION, OR ANY OTHER CONSTITUTIONAL
QUESTION.  M'ELMOYLE V. COHEN, SUPRA, WAS NOT CITED IN THE
RIDDLESBARGER CASE.  NOR WAS IT RELEVANT BECAUSE NO FOREIGN LAW WAS PUT
FORWARD WHICH MIGHT REQUIRE MISSOURI TO GIVE FULL FAITH AND CREDIT TO
IT. 

FN4  "THE PURPOSE OF THE ASSOCIATION IS TO MAKE LOANS ONLY TO ITS
MEMBERS, AND FOR THE FURTHER PURPOSE OF ACCUMULATING A FUND TO BE
RETURNED TO ITS MEMBERS WHO DO NOT RECEIVE ADVANCES ON THEIR SHARES." 
NATIONAL MUTUAL BLDG. & LOAN ASSN. V. BRAHAN, 193 U.S. 635, 636. 

FN5  THE COURT PURPORTS NOT TO OVERRULE THESE CASES FOR IT STATES:
"...  WE DO NOT RELY UPON THE PLACE OF CONCLUDING THE CONTRACT OF
MEMBERSHIP OR UPON THE PLACE PRESCRIBED FOR ITS PERFORMANCE."    FN6
HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313; OSBORN V. OZLIN, 310
U.S. 53; MUTUAL LIFE INS. CO. V. JOHNSON, 293 U.S. 335, 339;
NORTHWESTERN MUTUAL LIFE INS. CO. V. MCCUE, 223 U.S. 234, 246-248;
WHITFIELD V. AETNA LIFE INS. CO., SUPRA, 495; KNIGHTS TEMPLARS' &
MASONS' LIFE INDEMNITY CO. V. JARMAN, SUPRA; CHATTANOOGA NATIONAL BLDG.
& LOAN ASSN. V. DENSON, 189 U.S. 408; NATIONAL BLDG. & LOAN ASSN. V.
BRAHAN, SUPRA; WALL V. EQUITABLE LIFE ASSUR.  SOC., 32 F. 273, AFFIRMED
SUB NOM. EQUITABLE LIFE SOCIETY V. CLEMENTS, 140 U.S. 226. 

FN7  THIS CONTRAST IS DRAMATIZED BY THE CONSEQUENCES TO OHIO'S
INTEREST IN THE INJURY WHICH WOULD FLOW FROM SOUTH DAKOTA'S DISREGARD
FOR THIS CONTRACT LIMITATION WHICH VIOLATES SOUTH DAKOTA'S PUBLIC
POLICY.  IT IS CERTAINLY A TENUOUS THREAD WHICH WOULD LINK SOUTH
DAKOTA'S REFUSAL TO ENFORCE THIS AND SIMILAR LIMITATIONS TO THE UNDUE
DEPLETION OF THE CORPORATE FUNDS.  FOR IT IS UNLIKELY THAT IN
CALCULATING RATES AND RISKS, ACTUARIES TOOK INTO ACCOUNT THE CHANCE
THAT THE COMPANY MIGHT ESCAPE PAYING JUST CLAIMS BECAUSE OF COMPANY
IMPOSED LIMITATIONS ON THE TIME FOR BRINGING SUIT.  ON THE OTHER HAND
RECOVERY OF INSURANCE CLAIMS OFTEN SAVES INSURANCE BENEFICIARIES FROM
BECOMING PUBLIC CHARGES OF THE STATE OF THEIR RESIDENCE. 

FN8  STATISTICAL ABSTRACT OF THE UNITED STATES, DEPT. OF COMMERCE,
BUREAU OF THE CENSUS (1946) 442. 
..END :





















UNITED STATES V. WYOMING, 331 U.S. 440 


NO. 10, ORIGINAL.  ARGUED APRIL 7, 1947.  - DECIDED JUNE 2, 1947. 


1.  TITLE TO LANDS WITHIN A SECTION GRANTED TO THE STATE AS SCHOOL
LANDS BY THE WYOMING ENABLING ACT OF JULY 10, 1890, BUT WHICH, PRIOR TO
COMPLETION OF AN OFFICIAL SURVEY, WERE INCLUDED IN A PETROLEUM RESERVE
BY A PRESIDENTIAL ORDER PROMULGATED UNDER AUTHORITY OF THE ACT OF JUNE
25, 1910, HELD NOT TO HAVE VESTED IN THE STATE.  PP. 443-455. 

(A)  THE WYOMING ENABLING ACT, THOUGH CONTAINING WORDS OF PRESENT
GRANT, DID NOT VEST IN THE STATE, IMMEDIATELY UPON ADMISSION INTO THE
UNION, AN INDEFEASIBLE PROPRIETARY INTEREST IN THE UNSURVEYED SECTION,
OF SUCH NATURE AS PRECLUDED DISPOSITION BY THE FEDERAL GOVERNMENT FOR
OTHER PURPOSES.  PP. 444-446. 

(B)  NOTHING IN THE LEGISLATIVE HISTORY OF SEC. 14 OF THE ORGANIC ACT
OF 1868, NOR OF OTHER ACTS PASSED PRIOR TO THE WYOMING ENABLING ACT,
SUPPORTS THE STATE'S CLAIM TO TITLE IN THIS CASE.  PP. 446-448. 

(C)  THE WORDS "BUT SHALL BE RESERVED FOR SCHOOL PURPOSES ONLY" IN
SEC. 5 OF THE ENABLING ACT, TOGETHER WITH THE WORDS OF PRESENT GRANT IN
SEC. 4, ARE NOT TO BE CONSTRUED AS IMMEDIATELY VESTING IN THE STATE AN
INDEFEASIBLE INTEREST IN THE GRANTED LANDS, NOR AS A LIMITATION ON THE
FEDERAL GOVERNMENT'S POWER TO DEAL WITH SUCH LANDS IN A MANNER
CONSISTENT WITH APPLICABLE FEDERAL STATUTES.  PP. 448-455. 

2.  THE STATE CAN NOT BE DEEMED TO HAVE ACQUIRED AN INDEFEASIBLE
EQUITABLE RIGHT TO THE SECTION ON THE BASIS OF A SURVEY WHICH WAS
INCOMPLETE.  PP. 455-456. 

3.  ON THE CLAIM OF THE UNITED STATES TO RECOVER FOR OIL TAKEN FROM
PUBLIC LANDS, THE PLEADINGS IN THIS CASE PUT IN ISSUE THE DEFENDANTS'
GOOD FAITH, AND THE MASTER ERRED IN EXCLUDING EVIDENCE RELATING TO THIS
ISSUE AND IN FINDING THAT EITHER OR BOTH OF THE DEFENDANTS HAD ACTED
INNOCENTLY.  PP. 457-459. 

4.  THE PLAINTIFF'S EXCEPTION TO THE MASTER'S FAILURE, EVEN ON THE
PRESENT RECORD, TO MAKE FINDINGS OF THE DEFENDANTS' BAD FAITH AND TO
RECOMMEND A DECREE AWARDING DAMAGES ACCORDINGLY, CAN NOT BE SUSTAINED. 
PP. 459-460. 

5.  THE GOOD FAITH ISSUE HAVING BEEN FORECLOSED IN DEFENDANTS' FAVOR
BY THE MASTER BEFORE ANY EVIDENCE HAD BEEN INTRODUCED AND CONSISTENTLY
THROUGHOUT THE HEARING, IT WAS NOT INCUMBENT UPON THE DEFENDANTS TO
MAKE AN OFFER OF PROOF OF GOOD FAITH IN ORDER TO HAVE A TRIAL OF THE
ISSUE IF THE MASTER SHOULD BE FOUND TO HAVE BEEN WRONG.  P. 459. 

6.  CONSTRUCTIVE KNOWLEDGE OF THE OWNER'S TITLE DOES NOT DEMONSTRATE
A TRESPASSER'S BAD FAITH AS A MATTER OF LAW.  P. 460. 

7.  UPON THE RECORD IN THIS CASE, IT IS NECESSARY TO TRY THE ISSUE OF
DEFENDANTS' GOOD FAITH THROUGHOUT THE ENTIRE PERIOD IN DISPUTE, AS THE
BASIS FOR DETERMINING THE MEASURE OF PLAINTIFF'S RECOVERY.  P. 460. 

8.  THE MASTER SHOULD MAKE SPECIAL FINDINGS - SO FAR AS THE PARTIES
REQUEST THEM AND ADDUCE COMPETENT EVIDENCE TO SUPPORT THEM - AS TO THE
VALUE OF THE OIL PRODUCED AND THE AMOUNT AND NATURE OF ANY COLLATERAL
PROCEEDS FROM THE OPERATION, SEPARATELY, AND AS TO THE AMOUNT OF EACH
ITEM OF INCOME AND EXPENSE BY THE MONTH AND YEAR.  P. 460. 

UNITED STATES V. WYOMING ET AL. 

THIS WAS AN ORIGINAL SUIT IN EQUITY IN THIS COURT, BROUGHT BY THE
UNITED STATES AGAINST THE STATE OF WYOMING AND THE OHIO OIL COMPANY, TO
QUIET TITLE IN THE UNITED STATES TO CERTAIN LANDS IN WYOMING AND TO
RECOVER FOR OIL REMOVED FROM THE LANDS BY THE COMPANY UNDER A LEASE
FROM THE STATE.  THE CASE WAS REFERRED TO A SPECIAL MASTER.  UPON
EXCEPTIONS BY THE PLAINTIFF AND THE DEFENDANTS TO THE MASTER'S REPORT,
THE CASE IS RECOMMITTED TO HIM FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THE OPINION OF THIS COURT, P. 461. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES FILED A COMPLAINT IN THIS COURT AGAINST THE STATE
OF WYOMING AND THE OHIO OIL COMPANY TO ESTABLISH PLAINTIFF'S TITLE TO
CERTAIN WYOMING LANDS CLAIMED BY THE STATE, AND TO RECOVER FOR OIL
WHICH THE COMPANY HAS TAKEN FROM THE LANDS UNDER A LEASE FROM THE
STATE.  FN1 

BY JOINT ANSWER, THE DEFENDANTS CLAIMED TITLE IN THE STATE, AND THAT
BOTH DEFENDANTS HAVE AT ALL TIMES IN GOOD FAITH BELIEVED TITLE TO BE IN
THE STATE. 

THE CASE WAS REFERRED TO A SPECIAL MASTER, WHO HEARD EVIDENCE AND
ARGUMENT, AND SUBMITTED TO THE COURT A REPORT, IN WHICH HE RECOMMENDED
A DECREE QUIETING PLAINTIFF'S TITLE TO THE LANDS IN QUESTION, BUT
DENYING PLAINTIFF ANY RECOVERY FOR THE OIL HERETOFORE TAKEN.  BOTH
PLAINTIFF AND DEFENDANTS HAVE ENTERED EXCEPTIONS TO THE ADVERSE PARTS
OF THE REPORT, AND THE CASE IS NOW BEFORE US ON SUCH EXCEPTIONS.  FN2 

THE LANDS IN DISPUTE ARE THOSE LYING WITHIN SECTION 36, TOWNSHIP 58,
PARK COUNTY, WYOMING.  IT IS CONCEDED THAT PLAINTIFF ORIGINALLY HAD
TITLE TO THESE LANDS AS PART OF THE PUBLIC LANDS OF THE UNITED STATES. 
THE MASTER HELD THAT THE ENABLING ACT OF JULY 10, 1890,  FN3  ON WHICH
DEFENDANTS RELY AS THE SOURCE OF THEIR RIGHTS, PROPERLY CONSTRUED,
WOULD OPERATE TO VEST TITLE IN THE STATE ONLY AS OF THE DATE THAT AN
OFFICIAL SURVEY OF THE LINES OF THE SECTION WAS APPROVED BY THE
COMMISSIONER OF THE GENERAL LAND OFFICE, AND THEN ONLY IF NO
INCONSISTENT DISPOSITION OF THE LANDS HAD BEEN PREVIOUSLY MADE.  THE
MASTER FOUND, HOWEVER, THAT NO SUCH SURVEY WAS MADE AND APPROVED UNTIL
JULY 27, 1916.  SEVERAL MONTHS EARLIER, ON DECEMBER 6, 1915, THESE
LANDS HAD BEEN PLACED IN A PETROLEUM RESERVE BY PRESIDENTIAL ORDER. 
FN4 

DEFENDANTS' EXCEPTIONS TO THE MASTER'S FINDINGS AND CONCLUSION
RELATING TO TITLE GIVE EXPRESSION TO TWO BASIC CONTENTIONS:  FIRST,
THAT THE ENABLING ACT IMMEDIATELY VESTED IN THE STATE AN INDEFEASIBLE
RIGHT TO WHATEVER LANDS WOULD BE FOUND ON LATER SURVEY TO LIE WITHIN
EQUITY, WHICH RIPENED INTO FULL LEGAL TITLE WHEN THE COMPLETE SURVEY
WAS MADE AND APPROVED IN 1916.  THESE CONTENTIONS WILL BE FURTHER
ELABORATED AND DISCUSSED IN ORDER. 

CONSISTENT WITH THE POLICY FIRST GIVEN EXPRESSION IN THE ORDINANCE OF
1785, THE FEDERAL GOVERNMENT HAS INCLUDED GRANTS OF DESIGNATED SECTIONS
OF THE PUBLIC LANDS FOR SCHOOL PURPOSES IN THE ENABLING ACT OF EACH OF
THE STATES ADMITTED INTO THE UNION SINCE 1802.  FN5  THIS COURT HAS
FREQUENTLY BEEN CALLED UPON TO CONSTRUE THE PROVISIONS AND LIMITATIONS
OF SUCH GRANTS.  IT HAS CONSISTENTLY BEEN HELD THAT UNDER THE TERMS OF
THE GRANTS HITHERTO CONSIDERED BY THIS COURT, TITLE TO UNSURVEYED
DOES NOT PASS TO THE STATE UPON ITS ADMISSION INTO THE UNION, BUT
REMAINS IN THE FEDERAL GOVERNMENT UNTIL THE LAND IS SURVEYED.  PRIOR TO
SURVEY, THOSE SECTIONS ARE A PART OF THE PUBLIC LANDS OF THE UNITED
STATES AND MAY BE DISPOSED OF BY THE GOVERNMENT IN ANY MANNER AND FOR
ANY PURPOSE CONSISTENT WITH APPLICABLE FEDERAL STATUTES.  IF UPON
SURVEY IT IS FOUND THAT THE FEDERAL GOVERNMENT HAS MADE A PREVIOUS
DISPOSITION OF THE SECTION, THE STATE IS THEN ENTITLED TO SELECT LIEU
LANDS AS INDEMNITY IN ACCORDANCE WITH PROVISIONS INCORPORATED INTO EACH
OF THE SCHOOL-LAND GRANTS.  THE INTEREST OF THE STATE VESTS AT THE DATE
OF ITS ADMISSION INTO THE UNION ONLY AS TO THOSE SECTIONS WHICH ARE
SURVEYED AT THAT TIME AND WHICH PREVIOUSLY HAVE NOT BEEN DISPOSED OF BY
THE FEDERAL GOVERNMENT.  FN6 

DEFENDANTS CONTEND, HOWEVER, THAT REGARDLESS OF THE RULE GENERALLY
APPLICABLE IN SCHOOL-GRANT CASES, THE PROVISIONS OF THE WYOMING
ENABLING ACT ARE SUCH THAT UPON HER ADMISSION INTO THE UNION IN 1890,
AN INDEFEASIBLE PROPRIETARY INTEREST IN SECTIONS 16 AND 36 IN EACH
TOWNSHIP, WHETHER SURVEYED OR UNSURVEYED, VESTED IMMEDIATELY IN THE
STATE, EXCEPT AS TO SUCH SECTIONS AS HAD BEEN DISPOSED OF PREVIOUSLY BY
THE FEDERAL GOVERNMENT FOR OTHER PURPOSES.  THIS INTEREST, IT IS
CONTENDED, IS OF SUCH A NATURE, AS TO PRECLUDE ANY APPROPRIATION OR
RESERVATION OF UNSURVEYED SECTIONS 16 AND 36 BY THE FEDERAL GOVERNMENT
AFTER THE DATE OF WYOMING'S ADMISSION INTO THE UNION.  IT IS
DEFENDANTS' POSITION, THEREFORE, THAT THE ORDER OF THE PRESIDENT OF THE
UNITED STATES ISSUED DECEMBER 6, 1915, WHICH CAUSED THE LANDS HERE IN
ISSUE TO BE INCLUDED IN PETROLEUM RESERVE NO. 41, WAS NOT SUFFICIENT TO
DEFEAT THE STATE'S INTEREST, EVEN IF IT BE ASSUMED THAT A SURVEY OF
THAT SECTION HAD NOT BEEN COMPLETED AT THAT TIME.  WE, ACCORDINGLY,
TURN OUR ATTENTION TO THE PROVISIONS OF THE WYOMING ENABLING ACT WHICH
DEFENDANTS RELY UPON TO SUPPORT THEIR CONTENTIONS. 


"THAT SECTIONS NUMBERED SIXTEEN AND THIRTY-SIX IN EVERY TOWNSHIP OF
SAID PROPOSED STATE, AND WHERE SUCH SECTIONS, OR ANY PARTS THEREOF,
HAVE BEEN SOLD OR OTHERWISE DISPOSED OF BY OR UNDER THE AUTHORITY OF
ANY ACT OF CONGRESS, OTHER LANDS EQUIVALENT THERETO  ...  ARE HEREBY
GRANTED TO SAID STATE FOR THE SUPPORT OF COMMON SCHOOLS,  ...
PROVIDED, THAT SECTION SIX OF THE ACT OF CONGRESS OF AUGUST NINTH,
EIGHTEEN HUNDRED AND EIGHTY-EIGHT,  FN7  ...  SHALL APPLY TO THE SCHOOL
AND UNIVERSITY INDEMNITY LANDS OF THE SAID STATE OF WYOMING SO FAR AS
APPLICABLE." 

DEFENDANTS FIRST POINT TO THE FACT THAT IN THE GRANTING CLAUSE,
CONGRESS EMPLOYED WORDS OF PRESENT GRANT.  THIS IS SAID TO EVINCE AN
INTENTION TO VEST IMMEDIATELY IN THE STATE, NOT ONLY LEGAL TITLE TO
ALSO AN INDEFEASIBLE PROPRIETARY INTEREST IN THE UNSURVEYED SECTIONS OF
THE SCHOOL LANDS.  WE BELIEVE THAT THIS CONTENTION IS PRECLUDED BY
EARLIER DECISIONS OF THIS COURT.  IN HEYDENFELDT V. DANEY GOLD & SILVER
MINING CO., 93 U.S. 634(1877), DECIDED SOME THIRTEEN YEARS BEFORE THE
PASSAGE OF THE WYOMING ACT, THIS COURT CONSTRUED THE GRANTING CLAUSE OF
THE NEVADA ENABLING ACT, WHICH CONTAINS LANGUAGE SUBSTANTIALLY
IDENTICAL TO THAT OF SEC. 4 OF THE WYOMING ACT,  FN8  AS NOT
IMMEDIATELY VESTING IN THE STATE TITLE TO SECTIONS OF THE SCHOOL LANDS
UNSURVEYED AT THE DATE OF ADMISSION.  FN9  IN UNITED STATES V.
MORRISON, 240 U.S. 192, 205(1916), THIS COURT STATED:  "WE REGARD THE
DECISION IN THE HEYDENFELDT CASE AS ESTABLISHING A DEFINITE RULE OF
CONSTRUCTION." 

IT IS SIGNIFICANT, ALSO, THAT THREE YEARS BEFORE THE PASSAGE OF THE
WYOMING ACT, THE SECRETARY OF THE INTERIOR, IN CONSTRUING THE GRANTING
CLAUSE OF THE COLORADO ENABLING ACT, WHICH ALSO CONTAINS LANGUAGE OF
PRESENT GRANT, TOOK THE POSITION THAT TITLE TO UNSURVEYED SCHOOL LANDS
PASSES TO THE STATE ONLY AT THE DATE OF SURVEY AND THEN ONLY WHERE THE
FEDERAL GOVERNMENT HAS MADE NO OTHER DISPOSITION OF THE LAND PRIOR TO
THAT TIME.  FN10 

DEFENDANTS URGE, HOWEVER, THAT THE PERTINENT LANGUAGE OF THE WYOMING
ENABLING ACT SHOULD BE CONSIDERED IN CONNECTION WITH THE LEGISLATIVE
HISTORY OF THE ORGANIC ACT OF 1868,  FN11  UNDER THE AUTHORITY OF WHICH
WYOMING WAS ORGANIZED INTO A TERRITORY.  IT IS POINTED OUT THAT SEC. 14
OF THE ORGANIC ACT AS ORIGINALLY INTRODUCED RESERVED SECTIONS 16 AND 36
IN EACH TOWNSHIP FOR SCHOOL PURPOSES AT THE TIME "WHEN THE LANDS IN
SAID TERRITORY SHALL BE SURVEYED, UNDER THE DIRECTION OF THE GOVERNMENT
OF THE UNITED STATES, PREPARATORY TO BRINGING THE SAME INTO MARKET. 
...  "  DURING THE COURSE OF THE DEBATES ON THE BILL, SEC. 14 WAS
AMENDED TO ELIMINATE THE PHRASE QUOTED ABOVE, SO THAT AS FINALLY
ENACTED THE ORGANIC ACT MADE A PRESENT RESERVATION OF THE LANDS FOR
SCHOOL PURPOSES.  FN12  IT IS NOT DEFENDANTS' CONTENTION THAT SEC. 14
OF THE ORGANIC ACT MUST NECESSARILY PREVAIL OVER THE PROVISIONS OF THE
ENABLING ACT.  IT IS URGED, HOWEVER, THAT AS A GUIDE TO CONSTRUCTION,
THE LEGISLATIVE HISTORY OF SEC. 14 OF THE ORGANIC ACT CLEARLY INDICATES
AN INTENTION ON THE PART OF CONGRESS TO VEST IN WYOMING, AT THE DATE OF
ITS ADMISSION AS A STATE, IMMEDIATE INTERESTS IN ALL SCHOOL LANDS,
WHETHER SURVEYED OR UNSURVEYED, SUCH AS TO DEFEAT ANY SUBSEQUENT
ATTEMPTS BY THE FEDERAL GOVERNMENT TO RESERVE THE SECTIONS FOR OTHER
PURPOSES. 

WE FIND THE ARGUMENT UNCONVINCING.  DURING THE COURSE OF THE
CONGRESSIONAL DEBATES WHICH PRECEDED THE AMENDING OF SEC. 14 OF THE
ORGANIC ACT, CONCERN WAS EXPRESSED BY CERTAIN MEMBERS OF CONGRESS THAT
DELAYING THE RESERVATION FOR SCHOOL PURPOSES UNTIL THE DATE OF SURVEY
WOULD LEAVE OPEN THE POSSIBILITY THAT THE MOST CHOICE SCHOOL LANDS
WOULD BE SETTLED UPON BY SQUATTERS, PREEMPTORS, OR HOMESTEADERS, PRIOR
TO SURVEY SO AS TO DEFEAT THE RESERVATION OF THOSE LANDS FOR SCHOOL
PURPOSES.  IT WAS APPARENTLY TO DEAL WITH THAT SITUATION THAT THE
AMENDMENT WAS PASSED.  WE FIND NOTHING IN THE DESIRE OF CONGRESS TO
PRESERVE THE RESERVATION OF THE SCHOOL LANDS AGAINST THE CLAIM OF
INDIVIDUAL SETTLERS, HOWEVER, AS EVINCING ANY INTENTION TO STRIP FROM
THE FEDERAL GOVERNMENT THE POWER TO DEAL WITH THOSE LANDS IN THE PUBLIC
INTEREST AS AUTHORIZED BY THE APPLICABLE FEDERAL STATUTES.  THAT
CONGRESS DID NOT SO INTEND IS INDICATED BY THE FACT THAT ONLY FOUR
YEARS AFTER THE PASSAGE OF THE ORGANIC ACT, CONGRESS RESERVED A LARGE
TRACT OF THE PUBLIC LANDS IN WYOMING FOR THE YELLOWSTONE NATIONAL
PARK.  FN13  IN THE ENABLING ACT, IT WAS SPECIFICALLY PROVIDED THAT
WYOMING WAS NOT ENTITLED TO INDEMNITY FOR SECTIONS 16 AND 36 IN THE
TOWNSHIPS INCLUDED WITHIN THE YELLOWSTONE RESERVATION.  EVEN AS TO THE
RIGHTS OF INDIVIDUAL SETTLERS ON THE SCHOOL LANDS, CONGRESS PURSUED NO
CONSISTENT COURSE.  ALTHOUGH THE AMENDMENT TO SEC. 14 OF THE ORGANIC
ACT APPARENTLY WAS PASSED TO PROTECT THE RIGHT OF THE TERRITORY TO THE
SCHOOL LANDS AGAINST THE CLAIM OF SUCH INDIVIDUALS, CONGRESS, IN THE
ACT OF AUGUST 9, 1888,  FN14 GAVE RECOGNITION TO THE CLAIMS OF
HOMESTEADERS AND PREEMPTORS ESTABLISHED PRIOR TO SURVEY AND GRANTED TO
THE TERRITORY THE RIGHT TO SELECT OTHER PORTIONS OF THE PUBLIC LANDS IN
LIEU THEREOF.  WE CONCLUDE, THEREFORE, THAT NOTHING IN THE LEGISLATIVE
HISTORY OF THE ACTS PASSED BEFORE THE WYOMING ENABLING ACT GIVES
SUPPORT TO THE STATE'S CLAIM TO TITLE IN THIS CASE. 

DEFENDANT'S PRINCIPAL CONTENTION, HOWEVER, IS THAT, REGARDLESS OF THE
CONSTRUCTION WHICH MIGHT BE REQUIRED IF THE GRANTING CLAUSE OF THE
ENABLING ACT STOOD ALONE, THAT CLAUSE, READ IN CONNECTION WITH SEC. 5
OF THE ACT, GIVES CLEAR SUPPORT TO THEIR POSITION.  SECTION 5 PROVIDES
AS FOLLOWS: 

"THAT ALL LANDS HEREIN GRANTED FOR EDUCATIONAL PURPOSES SHALL BE
DISPOSED OF ONLY AT PUBLIC SALE,  ...  ; AND SUCH LAND SHALL NOT BE
SUBJECT TO PREEMPTION, HOMESTEAD ENTRY, OR ANY OTHER ENTRY UNDER THE
LAND LAWS OF THE UNITED STATES, WHETHER SURVEYED OR UNSURVEYED, BUT
SHALL BE RESERVED FOR SCHOOL PURPOSES ONLY." 

DEFENDANTS VIGOROUSLY ASSERT THAT THE PHRASE "BUT SHALL BE RESERVED
FOR SCHOOL PURPOSES ONLY" COMPLETELY AND IRREVOCABLY DIVESTED THE
FEDERAL GOVERNMENT OF POWER TO DISPOSE OF OR TO DEAL WITH ANY SECTIONS
16 AND 36 OF THE PUBLIC LANDS IN THE STATE NOT SOLD OR OTHERWISE
DISPOSED OF PRIOR TO THE PASSAGE OF THE ENABLING ACT.  THIS PHRASE READ
IN CONNECTION WITH THE LANGUAGE OF PRESENT GRANT IN SEC. 4, IT IS
ASSERTED, REVEALS A CLEAR INTENTION TO VEST IMMEDIATELY IN THE STATE AN
INDEFEASIBLE INTEREST IN ALL SUCH LANDS.  WE DO NOT BELIEVE THAT THE
LANGUAGE SHOULD BE SO CONSTRUED. 

THE PHRASE "BUT SHALL BE RESERVED FOR SCHOOL PURPOSES ONLY" SHOULD
NOT BE CONSIDERED APART FROM THE LANGUAGE WHICH IMMEDIATELY PRECEDES
IT.  THE CLAUSE BEGINNING WITH THE SEMICOLON IN THE LAST SENTENCE IN
THE SECTION CLEARLY AND EXPLICITLY TREATS THE CLAIMS OF INDIVIDUALS TO
SCHOOL LANDS ASSERTED UNDER THE FEDERAL LAND LAWS AND PROVIDES THAT
THOSE CLAIMS SHOULD NOT PREVAIL AGAINST THE STATE.  THE PHRASE UPON
WHICH WYOMING RELIES SHOULD BE CONSTRUED AS AN AFFIRMATION OF THE
STATE'S INTEREST AS OPPOSED TO THE CLAIMS OF SUCH INDIVIDUALS.  THE
PHRASE, HOWEVER, SHOULD NOT BE CONSTRUED AS A LIMITATION ON THE FEDERAL
GOVERNMENT'S POWERS TO DEAL WITH SUCH LANDS IN A MANNER CONSISTENT WITH
THE APPLICABLE FEDERAL STATUTES.  THE POWERS OF THE FEDERAL GOVERNMENT
WITH RESPECT TO THE PUBLIC LANDS, AS CONTRASTED TO THE CLAIMS OF
INDIVIDUALS ASSERTED UNDER THE LAND LAWS, ARE NOWHERE MENTIONED IN THE
SHOULD NOT BE CONSTRUED AS A LIMITATION ON THOSE POWERS.  FN15 

CONVINCING SUPPORT FOR THIS CONSTRUCTION IS FOUND BOTH IN THE
LEGISLATIVE HISTORY OF THE LANGUAGE CONTAINED IN SEC. 5 OF THE WYOMING
ACT AND IN SUBSEQUENT CONGRESSIONAL ENACTMENTS.  LANGUAGE IDENTICAL TO
THE LAST CLAUSE OF SEC. 5 FIRST APPEARED AS PART OF SEC. 11 OF THE ACT
OF FEBRUARY 22, 1889,  FN16  THE ENABLING ACT FOR THE STATES OF
WASHINGTON, MONTANA, NORTH DAKOTA, AND SOUTH DAKOTA.  A BILL
AUTHORIZING THE ADMISSION OF SOUTH DAKOTA, AND CONTAINING LANGUAGE
SIMILAR TO THAT LATER INCLUDED IN SEC. 5 OF THE WYOMING ACT, WAS FIRST
PASSED BY THE SENATE.  FN17 WHEN THE CAME BEFORE THE HOUSE FOR
CONSIDERATION, AN AMENDMENT WAS APPROVED WHICH STRUCK OUT ALL THE
PROVISIONS OF THE SENATE BILL FOLLOWING THE ENACTING CLAUSE AND
SUBSTITUTED A BILL CALLING FOR THE ADMISSION OF WASHINGTON, MONTANA,
NORTH DAKOTA, AND SOUTH DAKOTA.  FN18  AS FINALLY PASSED BY THE HOUSE,
THE SUBSTITUTE BILL PROVIDED THAT RIGHTS OF SETTLERS TO THE SCHOOL
LANDS SHOULD BE PRESERVED WHERE SETTLEMENTS WERE MADE PRIOR TO SURVEY
OR BEFORE APPROVAL OF THE ACT OF ADMISSION.  FN19  THE CONFERENCE
COMMITTEE, HOWEVER, REJECTED THOSE PROVISIONS; AND THE ACT AS PASSED
INCLUDED LANGUAGE SIMILAR TO THAT IN THE ORIGINAL SENATE BILL AND
IDENTICAL TO THAT LATER INCORPORATED INTO THE WYOMING ACT, PROVIDING
THAT THE CLAIMS OF THE STATES TO THE SCHOOL SECTIONS SHOULD PREVAIL
OVER THOSE OF THE INDIVIDUAL SETTLERS.  FN20  IT WILL BE OBSERVED THAT
THE CONFLICT BETWEEN THE PROVISIONS IN THE HOUSE BILL AND THE SENATE
BILL RELATED TO THE COMPETING INTERESTS OF THE STATES AND THE
INDIVIDUAL SETTLERS.  NOTHING IN THIS HISTORY INDICATES THAT BY
ACCEPTING THE ALTERNATIVE PROVIDED IN THE SENATE BILL AND RESOLVING THE
CONFLICT IN FAVOR OF THE STATES, CONGRESS INTENDED, ALSO, TO EXTINGUISH
THE POWERS OF THE FEDERAL GOVERNMENT, THERETOFORE EXERCISED, WITH
RESPECT TO THE UNSURVEYED SECTIONS OF THE SCHOOL LANDS.  NOR IS THERE
ANY EVIDENCE THAT CONGRESS INTENDED SUCH A DEPARTURE FROM PREVIOUS
PRACTICE WHEN IT INCORPORATED AN IDENTICAL CLAUSE INTO SEC. 5 OF THE
WYOMING ACT.  INDEED, THE HOUSE COMMITTEE REPORT STATES THAT THE
ENABLING ACT GIVES TO WYOMING "THE USUAL LAND GRANTS,"  FN21  AND THE
MANAGER OF THE BILL IN THE HOUSE OF REPRESENTATIVES DURING THE COURSE
OF THE DEBATES MADE A SIMILAR STATEMENT.  FN22 

ADDITIONAL SUPPORT FOR THE CONSTRUCTION WHICH WE HAVE INDICATED AS
PROPER MAY BE FOUND IN SUBSEQUENT CONGRESSIONAL ENACTMENTS.  THUS IN
THE ACT OF FEBRUARY 28, 1891, WHICH BECAME LAW ONLY SEVEN MONTHS AFTER
THE PASSAGE OF THE WYOMING ENABLING ACT, CONGRESS CLEARLY REVEALED ITS
UNDERSTANDING THAT THE FEDERAL GOVERNMENT HAD RETAINED ITS POWERS TO
RESERVE AND DISPOSE OF THE UNSURVEYED SCHOOL LANDS.  THAT ACT, THE
PERTINENT LANGUAGE OF WHICH IS SET OUT IN THE MARGIN, FN23  ATTEMPTS,
AMONG OTHER THINGS, TO ESTABLISH A UNIFORM POLICY WITH RESPECT TO THE
GRANTING OF LIEU LANDS TO THE STATES WHERE UPON SURVEY IT IS FOUND THAT
THE DESIGNATED SECTIONS ARE SUBJECT TO HOMESTEAD AND PRE-EMPTION CLAIMS
OR WHERE THE FEDERAL GOVERNMENT HAS INCLUDED SUCH SECTIONS WITHIN A
RESERVATION OR HAS DISPOSED OF THEM IN SOME OTHER WAY.  IT SHOULD BE
OBSERVED THAT WHEN DEALING WITH THE RIGHT OF THE STATES TO SELECT LIEU
LANDS WHERE HOMESTEAD AND PRE-EMPTION CLAIMS ARE INVOLVED, CONGRESS
FIRST INSERTED LANGUAGE IN THE ACT DESIGNED TO CREATE IN INDIVIDUALS
HOLDING SUCH CLAIMS RIGHTS SUPERIOR TO THOSE OF THE STATES TO THE
SCHOOL SECTIONS UPON WHICH SETTLEMENT BEFORE SURVEY HAS BEEN MADE.  BUT
IN DEALING WITH THE SELECTION OF LIEU LANDS WHERE THE FEDERAL
GOVERNMENT PRIOR TO SURVEY HAS INCLUDED THE DESIGNATED SCHOOL SECTIONS
IN A RESERVATION OR HAS OTHERWISE DISPOSED OF THEM, CONGRESS DID NOT
FIND IT NECESSARY FIRST TO CREATE THE POWER IN THE FEDERAL GOVERNMENT
TO MAKE SUCH RESERVATIONS OR DISPOSITIONS.  RATHER, ON THE APPARENT
ASSUMPTION THAT SUCH POWERS HAD BEEN RETAINED BY THE FEDERAL GOVERNMENT
AND WERE PRESENTLY EXISTING, CONGRESS MERELY PROVIDED FOR THE SELECTION
OF LIEU LANDS BY THE STATES WHERE UPON SURVEY IT IS FOUND THAT THOSE
POWERS HAVE BEEN EXERCISED.  IT IS APPARENT THAT CONGRESS INTENDED THAT
THE ACT OF 1891 SHOULD APPLY TO WYOMING AS WELL AS TO THE OTHER SCHOOL
LAND STATES.  FN24  INDEED, WYOMING ON AT LEAST TWO PREVIOUS OCCASIONS
SO CONTENDED AND SUCCEEDED IN OBTAINING BENEFITS UNDER THE ACT.  FN25
WE NEED NOT NOW CONSIDER THE EFFECT OF THE ACT OF 1891 INSOFAR AS IT
MAY BE INCONSISTENT WITH THE PROVISIONS OF THE WYOMING ENABLING ACT,
FOR IT IS OUR VIEW THAT WITH RESPECT TO THE PROBLEM OF THIS CASE NO
INCONSISTENCY EXISTS.  IT IS NOT WITHOUT SIGNIFICANCE, ALSO, THAT IN
1934, CONGRESS, AFTER HAVING BEEN FULLY APPRISED OF THE ADMINISTRATIVE
CONSTRUCTION OF THE SCHOOL-LAND PROVISIONS OF THE WYOMING ENABLING ACT,
FN26  WHICH IS IN ACCORD WITH THE CONSTRUCTION WHICH WE HAVE MADE,
AMENDED SEC. 5 OF THAT ACT BUT REENACTED ALL THE PROVISIONS OF THAT

DEFENDANTS' VIEW THAT, BY VIRTUE OF THE LANGUAGE OF THE ENABLING ACT,
CONGRESS EXTINGUISHED THE POWERS OF THE FEDERAL GOVERNMENT SUBSEQUENTLY
TO DISPOSE OF THE UNSURVEYED SCHOOL SECTIONS IN THE EXERCISE OF ITS
GOVERNMENTAL FUNCTIONS, ADMITTEDLY WOULD PLACE WYOMING IN A FAVORED
POSITION AMONG THE SCHOOL-GRANT STATES.  SUCH A RESULT DOES NOT ACCORD
WITH THE CONGRESSIONAL EXPECTATION THAT THE SCHOOL GRANT SHOULD HAVE
"EQUAL OPERATION AND EQUAL BENEFIT IN ALL THE PUBLIC LAND STATES AND
TERRITORIES."  N28  DEFENDANTS SUGGEST NO SPECIAL CIRCUMSTANCES OR
PECULIAR CONSIDERATIONS OF POLICY WHICH CONVINCINGLY INDICATE A PURPOSE
ON THE PART OF CONGRESS TO PLACE WYOMING ON OTHER THAN AN EQUAL FOOTING
WITH OTHER STATES WITH RESPECT TO THE POWERS OF THE FEDERAL GOVERNMENT
IN THE UNSURVEYED SCHOOL SECTIONS. 

FURTHERMORE, ONE OF THE IMPORTANT RECURRING PROBLEMS FACED BY
CONGRESS DURING THE PERIOD IN WHICH THE WYOMING ENABLING ACT WAS PASSED
WAS THE NECESSITY OF RESERVING TRACTS OF THE PUBLIC LANDS TO ACCOMPLISH
SUCH IMPORTANT PURPOSES AS PRESERVING THE NATIONAL FORESTS AND MINERAL
RESOURCES, ESTABLISHING PUBLIC PARKS, AND THE LIKE.  FN29  VESTING IN
THE STATE AN IMMEDIATE AND IRREVOCABLE INTEREST IN THE SCHOOL SECTIONS
BEFORE SUCH SECTIONS HAD BEEN IDENTIFIED BY SURVEY WOULD BE TO
COMPLICATE THE PERFORMANCE OF THE GOVERNMENT'S OBLIGATION WITH RESPECT
TO THE PUBLIC LANDS.  THAT CONGRESS INTENDED SUCH COMPLICATION SEEMS
MOST UNLIKELY WHEN IT IS OBSERVED THAT THE POLICY UNDERLYING THE GRANT
OF LANDS TO THE STATE FOR SCHOOL PURPOSES COULD BE ACHIEVED WITHOUT
PRODUCING THAT RESULT.  THUS SEC. 4 OF THE ENABLING ACT MAKES PROVISION
FOR INDEMNIFICATION TO THE STATE WHERE THE DESIGNATED SCHOOL SECTIONS
ARE DISPOSED OF FOR OTHER PURPOSES BY AUTHORIZING THE SELECTION OF
LANDS BY THE STATE IN LIEU THEREOF.  SECTION 6 OF THE ACT OF AUGUST 9,
1888,  FN30 WHICH WAS INCORPORATED INTO SEC. 4 OF THE ENABLING ACT "SO
FAR AS APPLICABLE," SPECIFICALLY PROVIDES FOR THE SELECTION OF LIEU
LANDS WHERE THE SCHOOL SECTIONS "HAVE BEEN OR SHALL HEREAFTER BE
RESERVED FOR PUBLIC PURPOSES." 

IT IS SIGNIFICANT THAT FOR A PERIOD EXTENDING OVER HALF A CENTURY,
THE LAND DECISIONS OF THE DEPARTMENT OF THE INTERIOR HAVE CONSISTENTLY
TAKEN THE POSITION THAT TITLE TO UNSURVEYED SCHOOL SECTIONS PASSES TO
THE STATE ONLY UPON COMPLETION OF THE SURVEY, AND PRIOR TO THAT TIME
THE FEDERAL GOVERNMENT IS NOT INHIBITED FROM MAKING SUCH RESERVATIONS
AND DISPOSITIONS OF THE LANDS AS REQUIRED BY THE PUBLIC INTEREST AND AS
AUTHORIZED BY APPLICABLE STATUTES.  MANY OF THOSE DECISIONS INVOLVED
STATUTORY LANGUAGE SUBSTANTIALLY IDENTICAL TO THAT IN THE WYOMING
ENABLING ACT.  FN31  WE SHOULD BE SLOW AT THIS LATE DATE TO UPSET THE
RULINGS "  ...  OF THE DEPARTMENT OF THE GOVERNMENT TO WHICH IS
COMMITTED THE ADMINISTRATION OF PUBLIC LANDS."  FN32 

FOR THE REASONS STATED ABOVE, WE HOLD THAT AT THE DATE OF HER
ADMISSION TO THE UNION, WYOMING ACQUIRED NO SUCH INTEREST IN THE LANDS
IN ISSUE THAT COULD NOT BE DEFEATED BY THE INCLUSION OF THOSE LANDS IN
A PETROLEUM RESERVE BY THE FEDERAL GOVERNMENT ACTING PRIOR TO SURVEY. 

WE ALSO THINK THAT DEFENDANTS' RELIANCE ON THE COLEMAN SURVEY OF 1892
AS THE BASIS OF AN INDEFEASIBLE EQUITABLE RIGHT TO SECTION 36 IS
MISPLACED, AND MAY BE ANSWERED BRIEFLY. 

THAT SURVEY WAS UNDERTAKEN PURSUANT TO A REQUEST FROM THE STATE TO
THE UNITED STATES SURVEYOR GENERAL THAT TOWNSHIP 58 BE SURVEYED AND
SUBDIVIDED, IN ORDER TO PERMIT THE STATE TO MAKE SELECTIONS OF SCHOOL
LANDS, AND THE CONTRACT AND INSTRUCTIONS FOR THE SURVEY SO DIRECTED. 
THE SURVEY WHICH WAS THEN MADE, HOWEVER, ACTUALLY FIXED ONLY THE
BOUNDARIES OF TOWNSHIP 58, AND MARKED ONE-MILE INTERVALS ON THOSE
BOUNDARIES, BUT DID NOT SUBDIVIDE THE TOWNSHIP.  SECTION 36 LIES IN THE
TOWNSHIP'S SOUTHEAST CORNER, AND ITS SOUTHERN AND EASTERN BOUNDARIES
ARE CONCURRENT WITH PART OF THE SOUTHERN AND EASTERN TOWNSHIP
BOUNDARIES, BUT THE NORTHERN AND WESTERN SECTION BOUNDARIES REMAINED
UNDETERMINED.  THIS WAS NOT A COMPLETED SURVEY OF SECTION 36.  FN33 

DEFENDANTS NO LONGER CONTEND THAT IT WAS.  THEY ARGUE ONLY THAT IT
"IDENTIFIED" SECTION 36, OR MADE IT "SUSCEPTIBLE OF IDENTIFICATION BY
PROTRACTION," SUFFICIENTLY THAT THE STATE SHOULD IN EQUITY BE HELD TO
HAVE ACQUIRED VESTED RIGHTS IN THE SECTION AS OF THE DATE THIS SURVEY
WAS APPROVED.  THEY CLAIM SUPPORT FOR THIS POSITION IN SEVERAL
DECISIONS RECOGNIZING THAT THE TITLE OF CERTAIN WESTERN RAILROADS
GRANTED LANDS BY THE UNITED STATES VESTED WHEN THE LINE OF ROUTE WAS
SELECTED AND A PLAN THEREOF FILED, WHETHER OR NOT THE ADJACENT LANDS
HAD THEN BEEN SURVEYED.  FN34 

WE FIND NO MERIT IN THIS ARGUMENT.  THE RAILROAD LAND GRANT CASES ARE
NOT APROPOS.  NOT ONLY DO THEY DEAL WITH STATUTES DIFFERENT FROM THE
ONE BEFORE US IN THE PRESENT CASE, BUT ALSO THEY HAVE NOTHING TO DO
WITH THE IDENTIFICATION OF UNSURVEYED LANDS BY THE PROTRACTION OF
PARTIAL SURVEYS.  IN THE MORRISON CASE  FN35  THIS COURT HELD A
COMPLETED BUT UNAPPROVED SURVEY INADEQUATE TO VEST ANY RIGHTS TO SCHOOL
LANDS.  A FORTIORI, DEFENDANTS ARE NOT BENEFITED BY THE COLEMAN
SURVEY. 

FOR THE FOREGOING REASONS, DEFENDANTS' EXCEPTIONS TO THE MASTER'S
FINDINGS AND CONCLUSIONS IN RESPECT TO TITLE ARE OVERRULED. 

HAVING DECIDED THAT PLAINTIFF HAS TITLE TO SECTION 36, WE NOW TURN TO
THE QUESTION OF ITS RIGHT TO RECOVER A MONEY JUDGMENT BECAUSE OF THE
DEFENDANT COMPANY'S OIL OPERATIONS THEREON. 

IT WAS SHOWN THAT IN 1917, UNDER A LEASE FROM THE STATE, THE COMPANY
ENTERED SECTION 36 AND DRILLED FIVE WELLS, SOME OF WHICH ARE STILL IN
PRODUCTION.  FOR THE PERIOD FROM THE COMPANY'S ENTRY ON THE LAND UNTIL
DECEMBER 31, 1944,  FN36  THERE WAS EVIDENCE OF THE AMOUNT AND MARKET
VALUE OF OIL PRODUCED AND OF THE CAPITAL AND OPERATING EXPENSES OF THIS
PRODUCTION, EACH BY THE MONTH, AND OF THE COLLATERAL "STEAM EARNINGS,"
THE ROYALTIES AND TAXES PAID TO THE STATE, AND THE OVERHEAD EXPENSES
ALLOCABLE TO THIS PRODUCTION, EACH BY THE YEAR.  FN37  FOR THE PURPOSE
OF PROVING THE BAD FAITH OF THE TRESPASS, PLAINTIFF OFFERED EVIDENCE
TENDING TO SHOW THAT DEFENDANTS KNEW OF PLAINTIFF'S CLAIM TO THE LAND
AND REALIZED ITS SUPERIORITY OVER THEIR OWN CLAIM AT LEAST AS EARLY AS
1929. 

THIS LAST EVIDENCE THE MASTER REFUSED TO ADMIT.  HE THOUGHT THAT, IN
ORDER TO RECOVER FOR A "BAD FAITH" TRESPASS, PLAINTIFF WAS REQUIRED TO
PUT THE QUESTION IN ISSUE BY ALLEGING "BAD FAITH" IN THE COMPLAINT,
WHICH IT HAD NOT DONE.  HE ALSO THOUGHT THAT PLAINTIFF'S ALLEGATION OF
DEFENDANTS' CLAIM OF RIGHT IN SECTION 36 WAS, IN EFFECT, AN ADMISSION
OF DEFENDANTS' GOOD FAITH.  WITHOUT HAVING TRIED THE BAD FAITH ISSUE,
THE MASTER STATED THAT BOTH DEFENDANTS SINCERELY BELIEVED IN THEIR
ASSERTED RIGHTS, AND MADE A FINDING OF THE STATE'S GOOD FAITH.  FROM
THIS HE CONCLUDED THAT PLAINTIFF'S RECOVERY SHOULD BE MEASURED BY THE
GROSS PROCEEDS REALIZED ON THE OPERATION, LESS THE PROPER EXPENSES
INCURRED. 

FROM THE OTHER EVIDENCE HERETOFORE MENTIONED, THE MASTER FOUND THAT
THE TOTAL AMOUNT OF THE COMPANY'S GROSS PROCEEDS, INCLUDING BOTH THE
VALUE OF OIL PRODUCED AND STEAM EARNINGS, WAS $168,317.53, AND THAT ITS
TOTAL EXPENSES WERE $232,797.27, INCLUDING ROYALTIES PAID IN THE AMOUNT
OF $17,306.30.  FN38  HE HELD THAT ALL PROVEN ELEMENTS OF THE COMPANY'S
EXPENSES EXCEPT ROYALTIES WERE PROPERLY DEDUCTIBLE.  AS EXPENSES SO
ALLOWED HAD BEEN ABOUT $47,000.00 GREATER THAN GROSS PROCEEDS, THE
MASTER CONCLUDED THAT PLAINTIFF SHOULD RECOVER NOTHING. 

PLAINTIFF EXCEPTS TO THESE FINDINGS AND CONCLUSIONS IN SEVERAL
RESPECTS.  FIRST, IT MAINTAINS THAT THE PLEADINGS PROPERLY FRAMED THE
ISSUE OF BAD FAITH, AND CONTENDS THAT THE MASTER THEREFORE ERRED IN
EXCLUDING EVIDENCE RELATING TO THIS ISSUE, AND IN FINDING THAT EITHER
OR BOTH OF THE DEFENDANTS HAD ACTED INNOCENTLY. 

AN AGREED PREMISE IS FOUND IN THE RULE THAT ONE WHO "WILFULLY" OR "IN
BAD FAITH" TRESPASSES ON THE LAND OF ANOTHER, AND REMOVES MINERALS, IS
LIABLE TO THE OWNER FOR THEIR FULL VALUE COMPUTED AS OF THE TIME THE
TRESPASSER CONVERTED THEM TO HIS OWN USE, BY SALE OR OTHERWISE, BUT
THAT AN "INNOCENT" TRESPASSER, WHO HAS ACTED "IN GOOD FAITH," MAY
DEDUCT FROM SUCH VALUE THE EXPENSES OF EXTRACTION N39.  IT IS ALSO
CLEAR THAT WHEN SUIT IS BROUGHT FOR THE VALUE OF MINERALS WRONGFULLY
REMOVED FROM THE PLAINTIFF'S LAND, AND THE TRESPASS AND CONVERSION ARE
ESTABLISHED, THE BURDEN OF PLEADING AND PROVING GOOD FAITH IS ON THE
DEFENDANT N40.  THE "GOOD FAITH" CONTEMPLATED BY THESE RULES IS
SOMETHING MORE THAN THE TRESPASSER'S ASSERTION OF A COLORABLE CLAIM TO
THE CONVERTED MINERALS.  FN41 

THUS, IN THIS CASE, PLAINTIFF'S ALLEGATION THAT DEFENDANTS CLAIMED
RIGHTS IN SECTION 36, MADE AS A BASIS FOR A PRAYER TO HAVE TITLE
QUIETED IN PLAINTIFF, CANNOT BE DEEMED EQUIVALENT TO AN ADMISSION OF
DEFENDANTS' GOOD FAITH.  PLAINTIFF ALSO ALLEGED ITS OWN TITLE, THE LACK
OF ANY RIGHT OR TITLE IN DEFENDANTS, THAT THE COMPANY WAS THERE ENGAGED
IN THE PRODUCTION OF OIL, AND THAT THE VALUE OF THE OIL THERETOFORE
EXTRACTED WAS IN EXCESS OF $165,000.  IT THEN PRAYED FOR A RECOVERY OF
"THE FULL VALUE OF ALL GAS, OIL, AND OTHER PETROLEUM PRODUCTS EXTRACTED
FROM SAID LAND BY THE DEFENDANTS OR EITHER OF THEM."  IN THE ANSWER,
BESIDES CLAIMING TITLE AND OIL RIGHTS, DEFENDANTS AVERRED THEIR GOOD
FAITH BELIEF THAT THEY HAD SUCH RIGHTS, WHICH PLAINTIFF TRAVERSED IN A
REPLY.  WE HAVE NO DOUBT THAT THESE PLEADINGS PUT THE QUESTION OF
DEFENDANTS' GOOD FAITH IN ISSUE.  OBVIOUSLY, THE MASTER'S STATEMENT IN
HIS REPORT THAT THE DEFENDANTS BELIEVED IN THEIR ASSERTED RIGHTS IS
UNWARRANTED ON THE PRESENT RECORD.  WE CONCLUDE, THEREFORE, THAT THE
MASTER ERRED IN EXCLUDING ANY COMPETENT EVIDENCE MATERIAL TO THE GOOD
FAITH ISSUE, AND IN FINDING THAT EITHER OR BOTH DEFENDANTS ACTED IN
GOOD FAITH.    SECOND, PLAINTIFF EXCEPTS TO THE MASTER'S FAILURE, EVEN
ON THE PRESENT RECORD, TO MAKE FINDINGS OF DEFENDANTS' BAD FAITH AND TO
RECOMMEND A DECREE AWARDING DAMAGES ACCORDINGLY N42.  IT URGES, AS ONE
GROUND FOR THIS EXCEPTION, THAT DEFENDANTS, HAVING THE BURDEN OF PROOF
ON THAT ISSUE, FAILED TO INTRODUCE SUFFICIENT EVIDENCE TO MAKE A PRIMA
FACIE SHOWING OF GOOD FAITH. 

FOR REASONS ALREADY SUGGESTED, WE NEED NOT CONSIDER WHETHER
DEFENDANTS CARRIED THAT BURDEN.  THE VIEW THAT THE GOOD FAITH ISSUE WAS
FORECLOSED IN DEFENDANTS' FAVOR WAS EXPRESSED BY THE MASTER BEFORE ANY
EVIDENCE HAD BEEN INTRODUCED, AND CONSISTENTLY THROUGHOUT THE HEARING. 
EVEN IF DEFENDANTS HAD DOUBTED THE CORRECTNESS OF THIS VIEW, THEY WERE
NOT BOUND TO REPUDIATE IT AND MAKE AN OFFER OF PROOF OF GOOD FAITH IN
ORDER TO HAVE A TRIAL OF THE ISSUE IF THE MASTER SHOULD PROVE TO BE
WRONG. 

AS ANOTHER GROUND, PLAINTIFF URGES THAT DEFENDANTS HAVE AT ALL TIMES
SINCE THE BEGINNING OF THIS TRESPASS HAD CONSTRUCTIVE KNOWLEDGE OF
PLAINTIFF'S TITLE, AND THAT EITHER THEY HAVE "INTENTIONALLY OR
NEGLIGENTLY FAILED TO ASCERTAIN FROM THE READILY AVAILABLE PUBLIC
RECORDS WHO OWNED THE LAND," OR THEY HAVE ACTED "WITH FULL KNOWLEDGE
THAT THE SECTION BELONGED TO THE UNITED STATES." 

IT IS CLEAR, HOWEVER, THAT CONSTRUCTIVE KNOWLEDGE OF THE OWNER'S
TITLE DOES NOT DEMONSTRATE DEFENDANTS' BAD FAITH AS A MATTER OF LAW. 
FN43  AS TO WHETHER AN INTENTIONAL OR NEGLIGENT FAILURE TO ASCERTAIN
THE TRUE INCIDENCE OF TITLE ALONE CONSTITUTES BAD FAITH, WE NEED NOT
NOW DECIDE, AS NO SUCH FACT HAS BEEN ESTABLISHED. 

PLAINTIFF'S ALTERNATIVE CONTENTION THAT WE SHOULD NOW ENTER A FINDING
OF DEFENDANTS' BAD FAITH FOR THE POST-1929 PERIOD AT LEAST, BECAUSE AS
TO IT "THERE IS POSITIVE PROOF THAT THE COMPANY KNEW ...  THE UNITED
STATES, NOT WYOMING, OWNED THE LAND," MAY BE ANSWERED IN THE SAME WAY. 
PLAINTIFF PROFFERED EVIDENCE OF SUCH KNOWLEDGE, BUT WE CANNOT SAY THAT
THIS EVIDENCE AMOUNTED TO CONCLUSIVE PROOF.  WE THINK THE NECESSITY OF
TRYING THE ISSUE OF DEFENDANTS' GOOD FAITH THROUGHOUT THE ENTIRE PERIOD
IN DISPUTE, PRELIMINARY TO DETERMINING THE MEASURE OF PLAINTIFF'S
RECOVERY, CANNOT BE AVOIDED. 

THIRD, PLAINTIFF URGES AND WE AGREE THAT THE MASTER SHOULD MAKE
SPECIAL FINDINGS - INSOFAR AS THE PARTIES REQUEST, AND OFFER COMPETENT
EVIDENCE TO SUPPORT THEM - AS TO THE VALUE OF THE OIL PRODUCED AND THE
AMOUNT AND NATURE OF ANY COLLATERAL PROCEEDS FROM THE OPERATION,
SEPARATELY, AND AS TO THE AMOUNT OF EACH ITEM OF INCOME AND EXPENSE BY
THE MONTH OR YEAR.  SUCH ACTION SHOULD ENABLE THE COURT TO DISPOSE OF
THE CASE ON THE NEXT HEARING, REGARDLESS OF ANY REVISIONS IT MIGHT MAKE
IN THE MASTER'S FINDINGS, CONCLUSIONS, OR RECOMMENDED DECREE. 

IN ITS EXCEPTIONS TO THE MASTER'S REPORT AND ITS ARGUMENT HERE,
PLAINTIFF HAS RAISED SEVERAL OTHER QUESTIONS, THE MATERIALITY OF EACH
OF WHICH DEPENDS ON WHETHER THE TRESPASS WAS COMMITTED IN GOOD FAITH. 
OBVIOUSLY, SUCH QUESTIONS MUST REMAIN MOOT UNTIL THIS ISSUE IS
DECIDED. 

THE CASE IS RECOMMITTED TO THE MASTER FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  SO ORDERED. 

FN1  JURISDICTION OF THIS COURT IS INVOKED UNDER ARTICLE III, SEC. 2,
CL. 2, OF THE CONSTITUTION, AND SEC. 233 OF THE JUDICIAL CODE (28
U.S.C. SEC. 341).  UNITED STATES V. TEXAS, 143 U.S. 621(1892). 

FN2  THE MASTER'S REPORT WAS FILED OCTOBER 14, 1946.  PLAINTIFF'S
EXCEPTIONS THERETO WERE FILED ON NOVEMBER 29 AND DEFENDANTS' ON
DECEMBER 2, 1946.  ARGUMENT WAS HEARD BY THE COURT ON APRIL 7, 1947. 

FN3  26 STAT. 222. 

FN4  THIS ORDER WAS PROMULGATED UNDER AUTHORITY OF THE ACT OF JUNE
25, 1910, 36 STAT. 847. 

FN5  THE LAND ORDINANCE OF 1785 PROVIDED:  "THERE SHALL BE RESERVED
THE LOT NO. 16, OF EVERY TOWNSHIP, FOR THE MAINTENANCE OF PUBLIC
SCHOOLS WITHIN THE SAID TOWNSHIP; ...  "  BETWEEN 1802 AND 1846 THE
GRANTS WERE OF THE 16TH SECTION IN EACH TOWNSHIP; THEREAFTER, OF
GRANTED.  UNITED STATES V. MORRISON, 240 U.S. 192, 198(1916). 

FN6  WISCONSIN V. LANE, 245 U.S. 427(1918); UNITED STATES V. STEARNS
LUMBER CO., 245 U.S. 436(1918); UNITED STATES V. MORRISON, SUPRA;
MINNESOTA V. HITCHCOCK, 185 U.S. 373(1902); HEYDENFELDT V. DANEY GOLD &
SILVER MINING CO., 93 U.S. 634(1877).  AND SEE WYOMING V. UNITED
STATES, 255 U.S. 489, 500-501(1921). 

FN7  SECTION 6 OF THE ACT OF AUGUST 9, 1888, 25 STAT. 393, PROVIDES: 

"THAT WHERE LANDS IN THE SIXTEENTH AND THIRTY-SIXTH SECTIONS, IN THE
TERRITORY OF WYOMING, ARE FOUND UPON SURVEY TO BE IN THE OCCUPANCY, AND
COVERED BY THE IMPROVEMENTS OF AN ACTUAL PRE-EMPTION OR HOME-STEAD
SETTLER, OR WHERE EITHER OF THEM ARE FRACTIONAL IN QUANTITY, IN WHOLE
OR IN PART, OR WANTING BECAUSE THE TOWNSHIPS ARE FRACTIONAL OR HAVE
BEEN OR SHALL HEREAFTER BE RESERVED FOR PUBLIC PURPOSES, OR FOUND TO BE
MINERAL IN CHARACTER, OTHER LANDS MAY BE SELECTED BY AN AGENT APPOINTED
BY THE GOVERNOR OF THE TERRITORY IN LIEU THEREOF, FROM THE SURVEYED
PUBLIC LANDS WITHIN THE TERRITORY NOT OTHERWISE LEGALLY CLAIMED OR
APPROPRIATED AT THE TIME OF SELECTION,  ...  " 

FN8  SECTION 7 OF THE NEVADA ENABLING ACT, 13 STAT. 30, 32,
PROVIDES: 

"THAT SECTIONS NUMBERS SIXTEEN AND THIRTY-SIX IN EVERY TOWNSHIP, AND
WHERE SUCH SECTIONS HAVE BEEN SOLD OR OTHERWISE DISPOSED OF BY ANY ACT
OF CONGRESS, OTHER LANDS EQUIVALENT THERETO IN LEGAL SUBDIVISIONS OF
NOT LESS THAN ONE QUARTER-SECTION, AND AS CONTIGUOUS AS MAY BE, SHALL
BE, AND ARE HEREBY, GRANTED TO SAID STATE FOR THE SUPPORT OF COMMON
SCHOOLS." 

FN9  DEFENDANTS ASSERT THAT THE HEYDENFELDT CASE CANNOT BE REGARDED
AS AUTHORITY HERE BECAUSE IN REACHING ITS RESULT IN THE HEYDENFELDT
CASE, THIS COURT RELIED IN PART UPON CIRCUMSTANCES PECULIAR TO NEVADA. 
THE SAME ARGUMENT WAS REJECTED IN THE MORRISON CASE, SUPRA AT 205:  "IT
IS ALSO URGED THAT THE COURT EMPHASIZED THE FACT THAT THERE HAD BEEN NO
SALE OR DISPOSITION OF THE PUBLIC LANDS IN NEVADA PRIOR TO THE ENABLING
ACT AND THEREFORE THAT THE CLAUSE COULD REFER ONLY TO FUTURE
DISPOSITION; WHEREAS, IN THE CASE OF OREGON, THERE HAD BEEN EARLIER
PROVISIONS FOR THE DISPOSAL OF THE PUBLIC DOMAIN.  BUT CONGRESS USED
THE SAME PHRASE SUBSTANTIALLY IN NEARLY EVERY ONE OF THE SCHOOL GRANTS,
AND IT WAS THE MANIFEST INTENTION TO PLACE THE STATES ON THE SAME
FOOTING IN THIS MATTER.  THE SAME CLAUSE, RELATING TO THE SAME SUBJECT,
AND ENACTED IN PURSUANCE OF THE SAME POLICY, DID NOT HAVE ONE MEANING
IN ONE GRANT AND A DIFFERENT MEANING IN ANOTHER; IT COVERED OTHER
DISPOSITIONS, WHETHER PRIOR OR SUBSEQUENT, IF MADE BEFORE THE LAND HAD
BEEN APPROPRIATELY IDENTIFIED BY SURVEY AND TITLE HAD PASSED." 

FN10  STATE OF COLORADO, 6 L.D. 412. 

FN11  15 STAT. 178. 

FN12  CONG. GLOBE, 40TH CONG., 2D SESS., 2801-2802. 

FN13  ACT OF MARCH 1, 1872, 17 STAT. 32. 

FN14  SEE NOTE 7, SUPRA. 

FN15  CF. UNITED STATES V. UNITED MINE WORKERS OF AMERICA, 330 U.S.
258(1947); GUARANTEE TITLE & TRUST CO. V. TITLE GUARANTY & SURETY CO.,
224 U.S. 152, 155(1912). 

FN16  25 STAT. 676. 

FN17  19 CONG. REC. 2802; SEN. JOURN.  50TH CONG., 1ST SESS., P.
696.  SECTION 6 OF THAT BILL CONTAINED THE FOLLOWING LANGUAGE:  "  ...
; AND SUCH SECTIONS SHALL NOT BE SUBJECT TO PRE-EMPTION OR ENTRY,
WHETHER SURVEYED OR UNSURVEYED, BUT SHALL BE RESERVED FOR SCHOOL
PURPOSES ONLY." 

FN18  20 CONG. REC. 806-812. 

FN19  ID. AT 948, 951. 

FN20  ID. AT 2104, 2116. 

FN21  H.R. REP. NO. 39, 51ST CONG., 1ST SESS., 26. 

FN22  21 CONG. REC. 2707. 

FN23  26 STAT. 796.  "WHERE SETTLEMENTS WITH A VIEW TO PRE-EMPTION OR
HOMESTEAD HAVE BEEN, OR SHALL HEREAFTER BE MADE, BEFORE THE SURVEY OF
THE LANDS IN THE FIELD, WHICH ARE FOUND TO HAVE BEEN MADE ON SECTIONS
SIXTEEN OR THIRTY-SIX, THOSE SECTIONS SHALL BE SUBJECT TO THE CLAIMS OF
SUCH SETTLERS; AND IF SUCH SECTIONS, OR EITHER OF THEM, HAVE BEEN OR
SHALL BE GRANTED, RESERVED, OR PLEDGED FOR THE USE OF SCHOOLS OR
COLLEGES IN THE STATE OR TERRITORY IN WHICH THEY LIE, OTHER LANDS OF
EQUAL ACREAGE ARE HEREBY APPROPRIATED AND GRANTED, AND MAY BE SELECTED
BY SAID STATE OR TERRITORY, IN LIEU OF SUCH AS MAY BE THUS TAKEN BY PRE
EMPTION OR HOMESTEAD SETTLERS.  AND OTHER LANDS OF EQUAL ACREAGE ARE
ALSO HEREBY APPROPRIATED AND GRANTED, AND MAY BE SELECTED BY SAID STATE
OR TERRITORY WHERE SECTIONS SIXTEEN OR THIRTY-SIX ARE MINERAL LAND, OR
ARE INCLUDED WITHIN ANY INDIAN, MILITARY, OR OTHER RESERVATION, OR ARE
OTHERWISE DISPOSED OF BY THE UNITED STATES:  ...  " 

FN24  H.R. REP. NO. 2384, 51ST CONG., 1ST SESS. 

FN25  WYOMING V. UNITED STATES, 255 U.S. 489(1921); STATE OF WYOMING,
27 L.D. 35. 

FN26  H.R. REP. 229, 73D CONG., 1ST SESS.; S. REP. NO. 10, 73D CONG.,
1ST SESS. 

FN27  48 STAT. 350.  SECTION 5 OF THE ENABLING ACT WAS AMENDED SO AS
TO PERMIT THE STATE TO LEASE THE SCHOOL LANDS FOR PERIODS OF TEN YEARS
AS CONTRASTED TO A FIVE YEAR LIMITATION CONTAINED IN THE SECTION AS
ORIGINALLY ENACTED. 

FN28  H.R. REP. NO. 2384, 51ST CONG., 1ST SESS., 1.  S. REP. NO. 502,
51ST CONG., 1ST SESS., 1. 

FN29  THUS THE SAME VOLUME OF THE STATUTES AT LARGE CONTAINING THE
WYOMING ENABLING ACT ALSO CONTAINS AT LEAST TWO PIECES OF SUCH
LEGISLATION.  26 STAT. 478, 650. 

FN30  SEE NOTE 7, SUPRA. 

FN31  SOUTH DAKOTA V. RILEY, 34 L.D. 657; STATE OF MONTANA, 38 L.D.
247; STATE OF UTAH, 53 L.D. 365.  AND SEE F.A. HYDE & CO., 37 L.D. 164;
STATE OF NEW MEXICO, 52 L.D. 679.  ALSO IN ACCORD ARE DECISIONS IN UTAH
V. WORK, 55 APP. D.C. 372, 6 F.2D 675(1925); THOMPSON V. SAVIDGE, 110
WASH. 486, 188 P. 397(1920). 

FN32  CALIFORNIA V. DESERET WATER, OIL & IRRIGATION CO., 243 U.S.
415, 421(1917). 

FN33  R.S. 2395, 43 U.S.C. SEC. 751.  BARNHURST V. STATE OF UTAH, 30
L.D. 314; HARRIS V. STATE OF MINNESOTA, COPP L.L. (1875-82) 631. 

FN34  CF. SANTA FE PAC. R. CO. V. LANE, 244 U.S. 492(1917); ST. PAUL
& PAC. R. CO. V. NORTHERN PAC. R. CO., 139 U.S. 1(1891); GRINNELL V.
CHICAGO, ROCK ISLAND & PAC. R. CO., 103 U.S. 739(1881). 

FN35  UNITED STATES V. MORRISON, SUPRA, NOTE 5. 

FN36  ACCOUNTS FOR THE PERIOD JANUARY 1, 1945, TO DATE OF HEARING
WERE TO BE PREPARED AND SUBMITTED LATER, ALONG WITH THOSE FOR ANY
SUBSEQUENT PERIODS FOR WHICH DEFENDANTS MIGHT BE LIABLE. 

FN37  THE TOTAL OF EACH OF THESE ITEMS FOR THE ENTIRE PERIOD WAS AS
FOLLOWS:  VALUE OF OIL PRODUCED, $167,049.54; STEAM EARNINGS,
$1,267.99; CAPITAL EXPENSES, $118,628.84; OPERATING EXPENSES,
$70,083.73; OVERHEAD EXPENSES, $22,461.00; TAXES, $4,317.40; ROYALTIES,
$17,306.30.  IT DOES NOT APPEAR WHAT THE NATURE OF THE SO-CALLED "STEAM
EARNINGS" WAS. 

FN38  THE TOTALS FOUND BY THE MASTER ARE THE SUMS OF THE APPROPRIATE
INDIVIDUAL ITEMS WHICH WERE IN EVIDENCE, AND WHICH WERE RECITED IN
FOOTNOTE 37.  NO QUESTION WAS RAISED AS TO THE ACCURACY OF ANY OF THESE
FIGURES. 

FN39  SEE MARTEL V. HALL OIL CO., 36 WYO. 166, 178, 253 P. 862, 864,
255 P. 3(1927); UNITED STATES V. ST. ANTHONY R. CO., 192 U.S.
524(1904); PINE RIVER LOGGING CO. V. UNITED STATES, 186 U.S. 279(1902);
WOODEN-WARE CO. V. UNITED STATES, 106 U.S. 432(1882); UNITED STATES V.
HOMESTAKE MINING CO., 117 F. 481(C.C.A.8TH 1902); WINCHESTER V. CRAIG,
33 MICH. 205(1876); LIVINGSTONE V. RAWYARDS COAL CO., 5 L.R. APP. CAS.
25(H.L. 1880); SUMMERS, OIL AND GAS, SECS. 23, 24. 

FN40  LIBERTY BELL GOLD MINING CO. V. SMUGGLER-UNION M. CO., 203 F.
795, 802(C.C.A.8TH 1913); ELKHORN-HAZARD COAL CO. V. KENTUCKY RIVER
COAL CORP., 20 F.2D 67, 71(C.C.A.6TH 1927). 

FN41  GUFFEY V. SMITH, 237 U.S. 101(1915); BENSON MINING CO. V. ALTA
MINING CO., 145 U.S. 428(1892).  CF. HALL OIL CO. V. BARQUIN, 33 WYO.
92, 137, 237 P. 255, 270(1925). 

FN42  THE MEASURE OF DAMAGES CLAIMED BY PLAINTIFF'S EXCEPTIONS ON THE
THEORY ABOUT TO BE STATED ARE, AS AGAINST THE COMPANY, THE FULL
PROCEEDS OF THE OIL PLUS "STEAM EARNINGS," AND AS AGAINST THE STATE,
THE AMOUNT OF ROYALTIES RECEIVED. 

FN43  GUFFEY V. SMITH, SUPRA, 237 U.S. AT 118. 
..END :













COPE V. ANDERSON, 331 U.S. 461 


ARGUED APRIL 28, 1947.  - DECIDED JUNE 2, 1947.  - 156 F.2D 972,
REVERSED.  - 156 F.2D 47, AFFIRMED. 


1.  WITHIN THE MEANING OF THE OHIO "BORROWING STATUTE," THE "CAUSE OF
ACTION" IN A SUIT BROUGHT IN OHIO AGAINST RESIDENTS OF THAT STATE TO
ENFORCE THEIR STATUTORY DOUBLE LIABILITY ON SHARES OF AN INSOLVENT
KENTUCKY NATIONAL BANK "AROSE" IN KENTUCKY, AND THE APPLICABLE STATUTE
OF LIMITATIONS WAS THE FIVE-YEAR STATUTE OF KENTUCKY.  PP. 464-468. 

2.  WITHIN THE MEANING OF THE PENNSYLVANIA "BORROWING STATUTE," THE
"CAUSE OF ACTION" IN A SUIT BROUGHT IN PENNSYLVANIA AGAINST A RESIDENT
OF THAT STATE TO ENFORCE A STATUTORY DOUBLE LIABILITY ON SHARES OF AN
INSOLVENT KENTUCKY NATIONAL BANK "AROSE" IN KENTUCKY, AND THE
APPLICABLE STATUTE OF LIMITATIONS WAS THE FIVE-YEAR STATUTE OF
KENTUCKY.  P. 468. 

3.  THE NATIONAL BANK HAVING BEEN AUTHORIZED TO DO ITS BANKING
BUSINESS IN A KENTUCKY CITY AND NOT HAVING DONE BUSINESS ELSEWHERE, THE
FACT THAT ITS SHARES WERE HELD IN THE PORTFOLIO OF A DELAWARE
CORPORATION DID NOT MAKE ITS BUSINESS ANY THE LESS LOCAL.  P. 467. 

4.  NO FEDERAL STATUTE HAVING FIXED ANY PERIOD OF LIMITATIONS IN
RESPECT OF SUITS TO ENFORCE THE STATUTORY DOUBLE LIABILITY OF
SHAREHOLDERS OF INSOLVENT NATIONAL BANKS, THE STATUTE OF LIMITATIONS OF
THE STATE IN WHICH THE SUIT IS BROUGHT APPLIES.  P. 463. 

5.  WHERE THE CONCURRENT JURISDICTION OF EQUITY TO ENFORCE A LEGAL
OBLIGATION DERIVES ONLY FROM THE SCOPE OF THE RELIEF SOUGHT AND THE
MULTITUDE OF THE PARTIES SUED, EQUITY WILL WITHHOLD RELIEF IF THE
APPLICABLE STATUTE OF LIMITATIONS WOULD BAR THE CONCURRENT LEGAL
REMEDY.  PP. 463-464. 

6.  ALTHOUGH THE PERIOD IN WHICH A SUIT TO ENFORCE THE STATUTORY
DOUBLE LIABILITY OF A SHAREHOLDER OF AN INSOLVENT NATIONAL BANK MUST BE
BROUGHT IS GOVERNED BY STATE STATUTES OF LIMITATION, THE QUESTION OF
WHEN THE PERIOD BEGINS TO RUN DEPENDS UPON WHEN, UNDER FEDERAL LAW, THE
COMPTROLLER OF THE CURRENCY, OR HIS AUTHORIZED AGENT, IS EMPOWERED BY
FEDERAL LAW TO BRING SUIT.  P. 464. 

7.  IN THE INSTANT CASES, THE SUITS COULD NOT BE BROUGHT BY THE
COMPTROLLER OR HIS AGENT UNTIL THE DATE FIXED BY THE COMPTROLLER FOR
PAYMENT, SO THE PERIOD OF LIMITATIONS DID NOT BEGIN TO RUN UNTIL THAT
DATE.  P. 464. 

COPE V. ANDERSON, RECEIVER. 

NO. 593.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT* . 

*TOGETHER WITH NO. 656, ANDERSON, RECEIVER, V. HELMERS ET AL., ON
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

NO. 593.  A SUIT BROUGHT AGAINST PETITIONER TO ENFORCE A STATUTORY
DOUBLE LIABILITY ON SHARES IN AN INSOLVENT NATIONAL BANK WAS DISMISSED
BY THE DISTRICT COURT AS BARRED BY LIMITATIONS.  62 F.SUPP.  705.  THE
CIRCUIT COURT OF APPEALS REVERSED.  156 F.2D 972.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 707.  REVERSED, P. 468. 

NO. 656.  IN A SUIT AGAINST RESPONDENTS TO ENFORCE A STATUTORY DOUBLE
LIABILITY ON SHARES OF AN INSOLVENT NATIONAL BANK, A MOTION TO DISMISS
ON THE GROUND, INTER ALIA, THAT THE SUIT WAS BARRED BY LIMITATIONS WAS
OVERRULED BY THE DISTRICT COURT.  THE CIRCUIT COURT OF APPEALS
REVERSED.  156 F.2D 47.  THIS COURT GRANTED CERTIORARI.  329 U.S. 707. 
AFFIRMED, P. 468. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN ANDERSON V. ABBOTT, 321 U.S. 349, WE HELD THAT THE SHAREHOLDERS OF
BANCOKENTUCKY COMPANY, A BANK-STOCKHOLDING COMPANY, WERE LIABLE UNDER
12 U.S.C. SECS. 63, 64, FOR AN ASSESSMENT ON SHARES OF AN INSOLVENT
NATIONAL BANK HELD IN THE PORTFOLIO OF THE HOLDING COMPANY.  THAT SUIT
WAS BROUGHT IN A KENTUCKY DISTRICT COURT AGAINST BANCO STOCKHOLDERS
RESIDING IN THAT DISTRICT.  THESE SUITS IN EQUITY WERE BROUGHT IN
FEDERAL DISTRICT COURTS IN OHIO AND PENNSYLVANIA TO ENFORCE ASSESSMENTS
AGAINST OHIO AND PENNSYLVANIA STOCKHOLDERS OF BANCO.  IN NO. 656 THE
DISTRICT COURT IN OHIO OVERRULED A MOTION TO DISMISS MADE ON THE
GROUND, AMONG OTHERS, THAT THE BILL SHOWED ON ITS FACE THAT THE ACTION
WAS BARRED BY AN OHIO STATUTE OF LIMITATIONS N1.  THE SIXTH CIRCUIT
COURT OF APPEALS REVERSED.  156 F.2D 47.  IN NO. 593 THE THIRD CIRCUIT
COURT OF APPEALS REVERSED THE DECISION OF THE DISTRICT COURT IN
PENNSYLVANIA WHICH HAD HELD THE ACTION THERE BARRED BY THE PENNSYLVANIA
STATUTE OF LIMITATIONS.  156 F.2D 972.  WE GRANTED CERTIORARI TO
CONSIDER BOTH CASES.  329 U.S. 707. 

THERE IS NO FEDERAL STATUTE OF LIMITATIONS FIXING THE PERIOD WITHIN
WHICH SUITS MUST BE BROUGHT TO ENFORCE THE STATUTORY DOUBLE LIABILITY
OF SHAREHOLDERS OF INSOLVENT NATIONAL BANKS.  FOR THIS REASON WE LOOK
TO OHIO AND PENNSYLVANIA LAW TO DETERMINE THE PERIOD IN WHICH THESE
SUITS MAY BE BROUGHT.  MCDONALD V. THOMPSON, 184 U.S. 71; MCCLAINE V.
RANKIN, 197 U.S. 154, 158; RAWLINGS V. RAY, 312 U.S. 96, 97.  EVEN
THOUGH THESE SUITS ARE IN EQUITY, THE STATES' STATUTES OF LIMITATIONS
APPLY.  FOR IT IS ONLY THE SCOPE OF THE RELIEF SOUGHT AND THE MULTITUDE
OF PARTIES SUED WHICH GIVE EQUITY CONCURRENT JURISDICTION TO ENFORCE
THE LEGAL OBLIGATION HERE ASSERTED.  AND EQUITY WILL WITHHOLD ITS
RELIEF IN SUCH A CASE WHERE THE APPLICABLE STATUTE OF LIMITATIONS WOULD
BAR THE CONCURRENT LEGAL REMEDY.  RUSSELL V. TODD, 309 U.S. 280, 289
AND CASES CITED.  SEE ALSO GUARANTY TRUST CO. V. YORK, 326 U.S. 99;
HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395-396. 

BUT EVEN THOUGH THE PERIOD IN WHICH SUIT MUST BE BROUGHT IS GOVERNED
BY STATE LIMITATIONS STATUTES, WE HAVE PREVIOUSLY DECIDED THAT THE
QUESTION OF WHEN THE APPLICABLE STATE STATUTE OF LIMITATIONS BEGINS TO
RUN DEPENDS UPON WHEN, UNDER FEDERAL LAW, THE COMPTROLLER OF THE
CURRENCY, OR HIS AUTHORIZED AGENT, IS EMPOWERED BY FEDERAL LAW TO BRING
SUIT.  AND THE COMPTROLLER'S AGENT, THE RECEIVER HERE, COULD NOT BRING
THESE ACTIONS UNTIL THE DATE FOR PAYMENT FIXED BY THE COMPTROLLER. 
RAWLINGS V. RAY, SUPRA, 98, 99; FISHER V. WHITON, 317 U.S. 217, 220,
221.  THE DATE FOR PAYMENT FIXED BY THE COMPTROLLER IN THIS INSTANCE
WAS APRIL 1, 1931.  THESE ACTIONS WERE INSTITUTED MORE THAN FIVE BUT
LESS THAN SIX YEARS AFTER THE PAYMENTS BECAME DUE UNDER THE
COMPTROLLER'S ASSESSMENT ORDER. 

WITH REGARD TO NO. 656, THE OHIO PROCEEDING, THE OHIO STATUTE OF
LIMITATIONS PROVIDES THAT SUIT "UPON A LIABILITY CREATED BY STATUTE
OTHER THAN A FORFEITURE OR PENALTY, SHALL BE BROUGHT WITHIN SIX YEARS
AFTER THE CAUSE THEREOF ACCRUED."  OHIO GEN. CODE (PAGE, 1938) SEC.
11222.  THIS STATUTE DESCRIBES THE LIABILITY SUED ON HERE, AND IF
APPLICABLE DOES NOT BAR THIS SUIT.  BUT THE SCOPE OF THIS GENERAL
PROVISION IS NARROWED BY ANOTHER KNOWN AS THE "BORROWING STATUTE" WHICH
READS: 

"IF THE LAWS OF ANY STATE OR COUNTRY WHERE THE CAUSE OF ACTION AROSE
LIMITS THE TIME FOR THE COMMENCEMENT OF THE ACTION TO A LESS NUMBER OF
YEARS THAN DO THE STATUTES OF THIS STATE IN LIKE CAUSES OF ACTION THEN
SAID CAUSE OF ACTION SHALL BE BARRED IN THIS STATE AT THE EXPIRATION OF
SAID LESSER NUMBER OF YEARS."  OHIO GEN. CODE (PAGE, 1938) SEC. 11234. 

IF THE CAUSE OF ACTION AROSE IN KENTUCKY, THE "BORROWING STATUTE"
APPLIES KENTUCKY'S STATUTE OF LIMITATIONS, AND THIS SUIT IS BARRED. 
FOR KENTUCKY'S LAW REQUIRES THAT AN "ACTION UPON A LIABILITY CREATED BY
STATUTE  ...  SHALL BE COMMENCED WITHIN FIVE YEARS AFTER THE CAUSE OF
ACTION ACCRUED."  KY. REV. STAT. (BALDWIN, 1943) SEC. 413.120. 

THE RECEIVER CONTENDS THAT THE OHIO BORROWING STATUTE'S LANGUAGE "THE
LAWS OF ANY STATE OR COUNTRY WHERE THE CAUSE OF ACTION AROSE" HAS
REFERENCE TO "A SYSTEM OF JURISPRUDENCE OTHER THAN OHIO'S," AND DOES
NOT REFER "NECESSARILY TO TERRITORIAL LIMITS" WITHIN WHICH EVENTS
OCCURRED GIVING RISE TO AN ENFORCEABLE OBLIGATION.  THE PLACE WHERE THE
EVENTS GIVING RISE TO A CAUSE OF ACTION OCCUR IS SAID TO BE "IMPORTANT
ONLY INSOFAR AS THE LAWS OF THAT PLACE ARE CONTROLLING."  UNDER THIS
ARGUMENT, THE CAUSE OF ACTION HERE COULD NOT HAVE "ARISEN" IN ANY STATE
SINCE THE STATUTORY OBLIGATION OF SHAREHOLDERS WAS NOT IMPOSED OR
CONTROLLED BY STATE LAW.  HENCE, THE ARGUMENT RUNS, THE OHIO LAW DID
NOT CONTEMPLATE BORROWING ANY STATE STATUTE OF LIMITATIONS IN A CASE
WHERE LIABILITY IS GOVERNED BY FEDERAL LAW.  AND NO FEDERAL STATUTE OF
LIMITATIONS COULD BE BORROWED IN THIS CASE FOR NONE EXISTED. 
THEREFORE, IT IS ARGUED, ONLY OHIO'S GENERAL SIX-YEAR STATUTE OF
LIMITATIONS APPLIES. 

THE CONSEQUENCE OF ACCEPTING THIS CONTENTION WOULD BE THAT THE OHIO
BORROWING STATUTE WOULD HAVE NO EFFECT AT ALL AS TO SUITS BROUGHT IN
OHIO STATE COURTS TO ENFORCE ACTIONS AUTHORIZED BY FEDERAL LAW.  FOR,
OF COURSE, OHIO COURTS COULD NEVER BORROW A NON-EXISTENT FEDERAL
STATUTE OF LIMITATIONS.  AND IF THERE WERE A FEDERAL STATUTE OF
LIMITATIONS GOVERNING A FEDERALLY CREATED RIGHT, THAT STATUTE WOULD
CONTROL OF ITS OWN FORCE.  HERGET V. CENTRAL NATIONAL BANK & TRUST CO.,
324 U.S. 4.  WE HAVE BEEN CITED TO NO DECISION BY ANY OHIO COURT WHICH
WOULD LEAD US TO BELIEVE THAT ITS BORROWING STATUTE SHOULD BE GIVEN
SUCH A STERILIZING INTERPRETATION.  CF. TOWNSEND V. EICHELBERGER, 51
OHIO ST. 213, 216, 38 N.E. 207, 208. 

WE FIND IT UNNECESSARY TO OUR DECISION TO DISCUSS THE CONTENTIONS
MADE HERE CONCERNING DIFFERENCES BETWEEN A "CAUSE OF ACTION" AND A
"LIABILITY."  THE OHIO SUPREME COURT HAS ITSELF SAID THAT A "CAUSE OF
ACTION IS THE FACT OR COMBINATION OF FACTS WHICH GIVES RISE TO A RIGHT
OF ACTION, THE EXISTENCE OF WHICH AFFORDS A PARTY A RIGHT TO JUDICIAL
INTERFERENCE IN HIS BEHALF."  BALTIMORE & O.R. CO. V. LARWILL, 83 OHIO
ST. 108, 115-116, 93 N.E. 619, 621.  WE HAVE BEEN REFERRED TO NOTHING
IN OHIO STATUTES OR DECISIONS WHICH INDICATES THAT IT USED "CAUSE OF
ACTION" IN ANY DIFFERENT SENSE IN ITS BORROWING STATUTE.  THE PURPOSE
OF THE STATE'S BORROWING STATUTE,  FN2  AS THOSE OF OTHER STATES,  FN3
WAS APPARENTLY TO REQUIRE ITS COURTS TO BAR SUITS AGAINST AN OHIO
RESIDENT IF THE RIGHT TO SUE HIM HAD ALREADY EXPIRED IN ANOTHER STATE
WHERE THE COMBINATION OF CIRCUMSTANCES GIVING RISE TO THE RIGHT TO SUE
HAD TAKEN PLACE.  MOREOVER, LIMITATIONS ON FEDERALLY CREATED RIGHTS TO
SUE HAVE SIMILARLY BEEN CONSIDERED TO BE GOVERNED BY THE LIMITATIONS
LAW OF THE STATE WHERE THE CRUCIAL COMBINATION OF EVENTS TRANSPIRED. 
SEABOARD TERMINALS CORP. V. STANDARD OIL CO., 24 F.SUPP.  1018, 104
F.2D 659; BLUEFIELDS S.S. CO. V. UNITED FRUIT CO., 243 F. 1, 19-20. 
SEE CAMPBELL V. HAVERHILL, 155 U.S. 610; CHATTANOOGA FOUNDRY & PIPE
WORKS V. ATLANTA, 203 U.S. 390, 397. 

OUR APPRAISAL OF THE OHIO BORROWING STATUTE, THE OPINIONS OF THE
COURTS OF THAT STATE, AND THE CIRCUMSTANCES LEADING TO THIS SUIT,
PERSUADE US THAT THE CAUSE OF ACTION "AROSE" IN KENTUCKY WITHIN THE
MEANING OF THE OHIO BORROWING STATUTE.  THE BANK WAS AUTHORIZED TO DO
ITS BANKING BUSINESS IN LOUISVILLE AND DID BUSINESS IN NO OTHER PLACE. 
SEE 12 U.S.C. SEC. 81.  NOR WAS THIS BANK'S BUSINESS ANY THE LESS LOCAL
BECAUSE ITS SHARES WERE HELD IN THE PORTFOLIO OF A DELAWARE
CORPORATION.  MANY PROVISIONS OF FEDERAL LAW MAKE NATIONAL BANKS, IN
IMPORTANT ASPECTS, PECULIARLY LOCAL INSTITUTIONS.  SEE 12 U.S.C. SECS.
30, 33, 34(A), 36, 51, 62, 72.  FOR JURISDICTIONAL PURPOSES, A NATIONAL
BANK IS A "CITIZEN" OF THE STATE IN WHICH IT IS ESTABLISHED OR LOCATED,
28 U.S.C. SEC. 41(16), AND IN THAT DISTRICT ALONE CAN IT BE SUED.  12
U.S.C. SEC. 94.  TRUE, WHEN INSOLVENCY OCCURS, THERE IS A SHIFT IN BANK
MANAGEMENT, BUT THE BANK'S ACTIVITIES ARE STILL NECESSARILY ROOTED IN
ITS LOCAL HABITAT.  IN THIS CASE THE RECEIVER'S OFFICE WAS LOCATED IN
LOUISVILLE, THE HOME OF THE BANK; PAYMENT OF ASSESSMENTS, LIKE OTHER
OBLIGATIONS DUE THE BANK, COULD HAVE BEEN MADE THERE, AND, IN FACT,
SHAREHOLDERS WERE NOTIFIED BY THE RECEIVER TO PAY AT HIS OFFICE IN
LOUISVILLE.  FN4  LIQUIDATION OF A LOCAL BANK, LIKE ITS DAILY
OPERATIONS, MUST FROM NECESSITY AND IN THE INTEREST OF GOOD BUSINESS BE
CARRIED ON, IN THE MAIN, IN THE COMMUNITY WHERE THE BANK DID BUSINESS
WITH ITS DEPOSITORS AND OTHER CUSTOMERS.  PRACTICALLY EVERYTHING THAT
PRECEDED THE FINAL FIXING OF LIABILITY OF SHAREHOLDERS DERIVED FROM
KENTUCKY TRANSACTIONS.  WE HAVE BEEN REFERRED TO NO OHIO DECISIONS, AND
HAVE BEEN UNABLE TO FIND ANY, WHICH CONTRADICT OUR CONCLUSION THAT
EVENTS WHICH CULMINATED IN THIS SUIT JUSTIFY OUR HOLDING THAT THIS
"CAUSE OF ACTION" "AROSE" IN KENTUCKY WITHIN THE MEANING OF THE OHIO
STATUTE.  SEE HUNTER V. NIAGARA FIRE INS. CO., 73 OHIO ST. 110, 76 N.E.
563; ALROPA CORP. V. KIRCHWEHM, 138 OHIO ST. 30, 33 N.E.2D 655; PAYNE
V. KIRCHWEHM, 141 OHIO ST. 384, 48 N.E.2D 224; BOWERS V. HOLABIRD, 51
OHIO APP. 413, 1 N.E.2D 326; NATIONAL BONDHOLDERS CORP. V. STODDARD, 22
OHIO O. 145, 8 OHIO SUPP. 19.  SEE ALSO HILLIARD V. PENNSYLVANIA R.
CO., 73 F.2D 473, 475-476; NOTE, 15 U. OF CIN.  L. REV. 337(1941);
NOTE, 21 OHIO O. 107(1941).  THEREFORE THE JUDGMENT IN NO. 656 IS
AFFIRMED. 

IN NO. 593, THE PENNSYLVANIA ACTION, THE SAME CONSIDERATIONS ARE
CONTROLLING.  THE GENERAL STATUTE OF LIMITATIONS OF THAT STATE WHICH
WOULD BE APPLICABLE TO THIS ACTION HAD IT ARISEN IN PENNSYLVANIA, LIKE
OHIO'S GENERAL STATUTE, PROVIDES A SIX-YEAR PERIOD IN WHICH THIS SUIT
COULD BE BROUGHT.  12 PA. STAT. SEC. 31(PURDON, 1931).  BUT
PENNSYLVANIA ALSO HAS A "BORROWING STATUTE" WHICH PROVIDES:  "WHEN A
CAUSE OF ACTION HAS BEEN FULLY BARRED BY THE LAWS OF THE STATE OR
COUNTRY IN WHICH IT AROSE, SUCH BAR SHALL BE A COMPLETE DEFENSE TO AN
ACTION THEREON BROUGHT IN ANY OF THE COURTS OF THIS COMMONWEALTH."  12
PA. STAT. SEC. 39(PURDON, 1931).  OUR REVIEW OF PENNSYLVANIA DECISIONS
CONSTRUING THIS STATUTE PERSUADES US THAT THE BORROWING STATUTE IS
APPLICABLE TO THIS CASE, THAT UNDER THAT STATUTE THIS CAUSE OF ACTION
"AROSE" IN KENTUCKY, AND THAT THE FIVE-YEAR STATUTE OF KENTUCKY BARS
THIS ACTION.  SEE MISTER V. BURKHOLDER, 56 PA. SUPER.  517; FLETCHER'S
ESTATE, 45 PA. D. & C. 673, 674; BELL V. BRADY, 346 PA. 666, 31 A.2D
547; SHAFFER'S ESTATE, 228 PA. 36, 40, 76 A. 716, 717.  CF. ROSENZWEIG
V. HELLER, 302 PA. 279, 153 A. 346.  SEE ALSO NOTES, 88 U. OF PA. L.
REV. 878(1940), 4 U. OF PITT.  L. REV. 215(1938).  THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS IN NO. 593 IS THEREFORE REVERSED.  SO
ORDERED. 

FN1  FOR CONVENIENCE, THE MOTION WAS MADE BY ONLY FOUR DEFENDANTS WHO
ARE RESPONDENTS HERE.  THE CASE WAS CONTINUED AS TO THE OTHERS PENDING
FINAL DISPOSITION OF THE QUESTION CONCERNING THE STATUTE OF
LIMITATIONS, THE ONLY GROUND OF THE MOTION TO DISMISS UPON WHICH THE
DISTRICT COURT PASSED. 

FN2  SEE 25 OHIO JURISPRUDENCE 435-440(1932). 

FN3  SEE NOTE, 75 A.L.R. 203(1931); NOTE, 35 COL. L. REV. 762(1935). 

FN4  WHETHER NOTICE BY THE RECEIVER TO PAY AT A PARTICULAR PLACE
COULD ALTER THE CONCLUSIVE SITUATION AS TO WHERE A CAUSE OF ACTION
MIGHT BE CONSIDERED TO "ARISE" UNDER OTHER CIRCUMSTANCES IS A QUESTION
WE NEED NOT DECIDE. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :













UNITED STATES V. SMITH, 331 U.S. 469 


NO. 498.  ARGUED MARCH 11, 1947.  - DECIDED JUNE 2, 1947.  - 156 F.2D
642, REVERSED. 


1.  AFTER A JUDGMENT OF CONVICTION HAS BEEN AFFIRMED BY THE CIRCUIT
COURT OF APPEALS (UPON AN APPEAL IN WHICH THE DISTRICT COURT'S DENIAL
OF A MOTION FOR A NEW TRIAL WAS ONE OF THE ERRORS ASSIGNED) AND THE
DEFENDANT HAS BEGUN SERVICE OF THE SENTENCE, A FEDERAL DISTRICT COURT
IS WITHOUT POWER UNDER RULE 33 OF THE RULES OF CRIMINAL PROCEDURE TO
ORDER A NEW TRIAL SUA SPONTE.  PP. 471-477. 

2.  WHERE, IN SUCH CIRCUMSTANCES, A DISTRICT COURT HAS ORDERED A NEW
TRIAL, THE GOVERNMENT IS ENTITLED TO WRITS OF MANDAMUS AND PROHIBITION
FROM THE CIRCUIT COURT OF APPEALS REQUIRING THAT THE ORDER BE VACATED. 
PP. 470, 477. 

UNITED STATES V. SMITH, U.S. DISTRICT JUDGE, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

THE CIRCUIT COURT OF APPEALS DENIED A PETITION BY THE UNITED STATES
FOR WRITS OF MANDAMUS AND PROHIBITION DIRECTED TO THE DISTRICT COURT
AND THE JUDGES THEREOF.  156 F.2D 642.  THIS COURT GRANTED CERTIORARI. 
329 U.S. 703.  REVERSED, P. 477. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES IN THIS CASE SOUGHT WRITS OF MANDAMUS AND
PROHIBITION FROM THE COURT OF APPEALS DIRECTED TO THE JUDGES OF THE
DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA TO REQUIRE THAT
AN ORDER BY WHICH A NEW TRIAL WAS GRANTED TO ONE JOHN MEMOLO BE
VACATED. 

MEMOLO WAS CONVICTED OF TAX EVASION AFTER JURY TRIAL BEFORE JUDGE
WILLIAM F. SMITH.  THREE DAYS LATER MEMOLO FILED A MOTION FOR NEW TRIAL
AND WAS GIVEN LEAVE TO FILE REASONS IN ITS SUPPORT.  HE FILED FIFTY
FOUR REASONS, SUCH AS THE TRIAL COURT'S DENIAL OF CONTINUANCE, OF
MOTION TO QUASH THE INDICTMENT, OF MOTION FOR A BILL OF PARTICULARS,
AND OF MOTION FOR A DIRECTED VERDICT.  HE COMPLAINED ALSO OF THE
COURT'S ACTION IN DISCHARGING SOME OF THE PETIT JURORS, IN ADMISSION
AND EXCLUSION OF EVIDENCE, IN INSTRUCTING THE JURY, AND IN CONDUCT
TOWARD DEFENDANT AND HIS COUNSEL SAID TO HAVE BEEN PREJUDICIAL.  ON THE
SAME DAY, JUDGE SMITH DENIED THE MOTION AND SENTENCED MEMOLO TO THREE
YEARS IMPRISONMENT AND FINES. 

MEMOLO APPEALED, ASSIGNED AS ERRORS ALL OF THE MOTION GROUNDS AND, IN
ADDITION, THE DENIAL OF THE MOTION FOR NEW TRIAL.  THE COURT OF APPEALS
FOR THE THIRD CIRCUIT AFFIRMED WITH A PER CURIAM OPINION DECLARING THAT
IT COULD PERCEIVE NO SUBSTANTIAL ERROR IN THE PROCEEDINGS.  UNITED
STATES V. MEMOLO, 152 F.2D 759.  PETITION FOR CERTIORARI WAS DENIED BY
THIS COURT, MEMOLO V. UNITED STATES, 327 U.S. 800.  THEREFORE, THE
COURT OF APPEALS ISSUED ITS MANDATE OF AFFIRMANCE AND, IN THE
CONVENTIONAL FORM, COMMANDED THAT "SUCH EXECUTION AND FURTHER
PROCEEDING BE HAD IN SAID CAUSE, AS ACCORDING TO RIGHT AND JUSTICE, AND
THE LAWS OF THE UNITED STATES, OUGHT TO BE HAD, THE SAID APPEAL
NOTWITHSTANDING."  MEMOLO WAS THEN TAKEN INTO CUSTODY AND, ON APRIL 8,
1946, IMPRISONED IN A FEDERAL PENITENTIARY. 

THE FOLLOWING DAY THE CLERK OF THE DISTRICT COURT RECEIVED FROM JUDGE
SMITH AN ORDER DATED APRIL 8TH "THAT JUDGMENT HERETOFORE ENTERED BE
VACATED AND THAT THE VERDICT HERETOFORE RETURNED BE SET ASIDE, AND THAT
A NEW TRIAL BE GRANTED THE DEFENDANT."  IT WAS ACCOMPANIED BY A
"MEMORANDUM" RECITING THE HISTORY OF THE CASE AND THAT "THIS COURT,
WHILE THE APPEAL WAS PENDING, RECONSIDERED THE GROUNDS URGED BY THE
DEFENDANT IN SUPPORT OF HIS MOTION FOR A NEW TRIAL.  IT IS OUR OPINION
UPON THIS RECONSIDERATION THAT IN THE INTEREST OF JUSTICE A NEW TRIAL
SHOULD BE GRANTED THE DEFENDANT."  IT ASSIGNED NO MORE PARTICULAR
GROUND FOR THE ORDER.  MEMOLO WAS THEREUPON RELEASED FROM THE
PENITENTIARY ON BAIL. 

ON THE GOVERNMENT'S PETITION TO THE COURT OF APPEALS FOR WRITS
DIRECTING THAT THE ORDER BE VACATED, MEMOLO WAS ALLOWED TO INTERVENE. 
JUDGE SMITH ALSO ANSWERED ASSERTING THAT HIS ORDER "WAS IN ACCORDANCE
WITH THE MANDATE OF THIS COURT AND WAS AUTHORIZED BY THE RULES OF
CRIMINAL PROCEDURE OF 1946, EFFECTIVE MARCH 21, 1946, PARTICULARLY RULE
33 THEREOF."  HE REFERRED TO HIS MEMORANDUM BUT DID NOT FURTHER
ELUCIDATE HIS REASONS FOR GRANTING A NEW TRIAL.  ON CONSIDERATION, THE
COURT BELOW SITTING EN BANC DENIED THE PETITION FOR WRITS OF MANDAMUS
AND PROHIBITION.  156 F.2D 642.  TWO OF THE FIVE JUDGES DISSENTED. 

THE MANDATE WHICH THE APPELLATE COURT RETURNED TO THE DISTRICT COURT
WAS IN THE CONVENTIONAL AND LONG-USED FORM ADAPTED TO ALL APPEALED
CAUSES AND CONTAINED NO SPECIAL DIRECTIONS PECULIAR TO THIS CASE.  IT
WAS NEUTRAL ON THE ISSUES HERE RAISED AND NOTHING IN ITS TERMS EITHER
EXPRESSLY AUTHORIZED OR PROHIBITED THE ORDER FOR NEW TRIAL.  THE POWER
OF THE DISTRICT COURT TO MAKE SUCH AN ORDER TURNS ENTIRELY ON THE RULES
OF CRIMINAL PROCEDURE CITED AND RELIED UPON BY JUDGE SMITH. 

RULE 33 PROVIDES: 

"NEW TRIAL.  THE COURT MAY GRANT A NEW TRIAL TO A DEFENDANT IF
REQUIRED IN THE INTEREST OF JUSTICE.  IF TRIAL WAS BY THE COURT WITHOUT
A JURY THE COURT MAY VACATE THE JUDGMENT IF ENTERED, TAKE ADDITIONAL
TESTIMONY AND DIRECT THE ENTRY OF A NEW JUDGMENT.  A MOTION FOR A NEW
TRIAL BASED ON THE GROUND OF NEWLY DISCOVERED EVIDENCE MAY BE MADE ONLY
BEFORE OR WITHIN TWO YEARS AFTER FINAL JUDGMENT, BUT IF AN APPEAL IS
PENDING THE COURT MAY GRANT THE MOTION ONLY ON REMAND OF THE CASE.  A
MOTION FOR A NEW TRIAL BASED ON ANY OTHER GROUNDS SHALL BE MADE WITHIN
5 DAYS AFTER VERDICT OR FINDING OF GUILTY OR WITHIN SUCH FURTHER TIME
AS THE COURT MAY FIX DURING THE 5-DAY PERIOD." 

THE FIRST SENTENCE OF THIS RULE IS DECLARATORY OF THE POWER TO GRANT
A NEW TRIAL "IN THE INTEREST OF JUSTICE" INSTEAD OF FOR REASONS
CATALOGUED AS THEY MIGHT HAVE BEEN.  FN1  THE GENERALITY OF THE REASONS
ASSIGNED BY JUDGE SMITH FOR THE ORDER IN QUESTION IS ALL THAT IS
REQUIRED.  BUT THIS SENTENCE SAYS NOTHING OF THE TIME WITHIN WHICH THE
COURT MUST ACT OR OF THE EFFECT OF AN INTERVENING APPEAL AND AFFIRMANCE
ON THE POWER.  SUCH TIME PROVISIONS AS THERE ARE RELATE TO FILING OF
MOTIONS BY THE DEFENDANT. 

THE LAST SENTENCE OF THE RULE, WHICH PUTS A FIVE-DAY LIMIT ON MOTIONS
FOR NEW TRIAL ON ANY GROUND OTHER THAN NEWLY-DISCOVERED EVIDENCE, WAS
SUGGESTED BY THE LAW AS IT STOOD BEFORE ADOPTION OF THE NEW RULES. 
GENERALLY SPEAKING, THE POWER OF A COURT OVER ITS JUDGMENTS AT COMMON
LAW EXPIRED WITH THE TERM OF COURT.  UNITED STATES V. MAYER, 235 U.S.
55, 67-69.  THERE WAS, HOWEVER, A THREE-DAY LIMITATION ON THE RIGHT TO
MOVE FOR A NEW TRIAL.  RULE II, CRIMINAL APPEALS RULES OF MAY 7, 1934,
292 U.S. 662, 18 U.S.C. SEC. 688.  RULE 33, IN ITS LAST SENTENCE,
EXTENDED THAT PERIOD TO FIVE DAYS, AND OTHERWISE EXTENDED THE TIME IN
WHICH TO MOVE FOR NEW TRIAL BECAUSE OF NEWLY DISCOVERED EVIDENCE.  THE
LIMITATION BY EXPIRATION OF THE TERM WAS REPEALED BY RULE 45(C). 

IT IS NOW SAID THAT BECAUSE THE LITERAL LANGUAGE OF THE RULE PLACES
THE FIVE-DAY LIMIT ONLY ON THE MAKING OF THE MOTION, IT DOES NOT LIMIT
THE POWER OF THE COURT LATER TO GRANT THE MOTION, AND THE POWER
SURVIVES AFFIRMANCE OF THE JUDGMENT BY APPELLATE COURTS.  BRIEFLY,
JUDGE SMITH THOUGHT AND INTERVENOR ARGUES THAT THE RULE PREVENTS A
DEFENDANT FROM ASKING THE COURT TO GRANT A NEW TRIAL AFTER THE TIMES
SPECIFIED, BUT THAT IT PERMITS THE JUDGE TO ORDER RETRIAL WITHOUT
REQUEST AND AT ANY TIME.  THE RESULT, IN VIEW OF ANNULMENT OF THE TERM
LIMITATION,  FN2  WOULD BE THAT THE POWER OF THE TRIAL COURT TO GRANT
NEW TRIALS ON ITS OWN MOTION LINGERS ON INDEFINITELY.  THERE ARE
SEVERAL REASONS WHY THIS CONSTRUCTION OF THE RULES IS NOT ACCEPTABLE. 

IT IS NOT THE FUNCTION OF APPELLATE COURTS TO REVIEW TENTATIVE
DECISIONS OF TRIAL COURTS.  THE CIRCUIT COURT OF APPEALS HAD NO
JURISDICTION TO REVIEW THE DENIAL OF THE MOTION FOR A NEW TRIAL UNLESS
THE DENIAL WAS "FINAL."  JUDICIAL CODE SEC. 128(A), 28 U.S.C. SEC.
225(A).  QUESTION OF FINALITY WOULD BE RAISED IF THE TRIAL COURT, WHILE
FORMALLY DENYING THE MOTION FOR NEW TRIAL ON THE RECORD, RESERVES THE
RIGHT TO CHANGE ITS MIND AFTER THE OPINION OF AN APPELLATE COURT HAS
BEEN ELICITED.  IN THIS CASE THE COURT OF APPEALS REVIEWED FIFTY-FOUR
SPECIFICATIONS OF ERROR AND FOUND NONE TO WARRANT REVERSAL.  ALL OF
THIS WAS BUT VAIN IF THE TRIAL COURT WAS TO ACT AS ITS OWN REVIEWING
BODY OR IF IT HAD NOT REACHED A CONCLUSIVE DETERMINATION OF THE ORDERS
BEING APPEALED.  SUCH A PRACTICE WOULD AUTHORIZE THE APPELLATE PROCESS
TO BE EXERCISED IN AN ADVISORY CAPACITY WHILE THE TRIAL COURT,
REGARDLESS OF APPELLATE DECISION, COULD SET ASIDE ALL THAT WAS THE
BASIS OF APPEAL. 

MOREOVER, IT WOULD BE A STRANGE RULE WHICH DEPRIVED A JUDGE OF POWER
TO DO WHAT WAS ASKED WHEN REQUEST WAS MADE BY THE PERSON MOST
CONCERNED, AND YET ALLOWED HIM TO ACT WITHOUT PETITION.  IF A CONDITION
OF THE POWER IS THAT REQUEST FOR ITS EXERCISE BE NOT MADE, SERIOUS
CONSTITUTIONAL ISSUES WOULD BE RAISED.  FOR IT IS SUCH REQUEST WHICH
OBVIATES ANY LATER OBJECTION THE DEFENDANT MIGHT MAKE ON THE GROUND OF
DOUBLE JEOPARDY.  MURPHY V. MASSACHUSETTS, 177 U.S. 155, 160; CF. EX
PARTE LANGE, 18 WALL.  163.  THIS INTERVENOR, FOR EXAMPLE, HAS BEEN
TRIED, CONVICTED AND IMPRISONED AND HAS SERVED SOME, ALTHOUGH LITTLE,
TIME ON THE SENTENCE OF THE COURT.  AFTER REMAND OF HIS CASE, HE MADE
NO FURTHER MOTION FOR A NEW TRIAL AND COULD MAKE NONE.  IT IS NOT
NECESSARY FOR US NOW TO DECIDE WHETHER HIS RETRIAL ON THE COURT'S OWN
MOTION WOULD AMOUNT TO DOUBLE JEOPARDY.  FN3  THAT A SERIOUS
CONSTITUTIONAL ISSUE WOULD BE PRESENTED BY SUCH A PROCEDURE IS ENOUGH
TO SUGGEST THAT WE AVOID A CONSTRUCTION THAT WILL RAISE SUCH AN ISSUE. 

FOR YET ANOTHER REASON, WE WOULD BE RELUCTANT TO HOLD THAT THE COURT
HAS A CONTINUING POWER ON HIS OWN INITIATIVE TO GRANT WHAT THE
DEFENDANT HAS NOT THE RIGHT TO GO INTO OPEN COURT AND ASK.  TO APPROVE
THE PRACTICE FOLLOWED IN THIS CASE WOULD ALMOST CERTAINLY SUBJECT TRIAL
JUDGES TO PRIVATE APPEALS OR APPLICATION BY COUNSEL OR FRIENDS OF ONE
CONVICTED.  WE THINK THAT EXPIRATION OF THE TIME WITHIN WHICH RELIEF
CAN OPENLY BE ASKED OF THE JUDGE, TERMINATES THE TIME WITHIN WHICH IT
CAN PROPERLY BE GRANTED ON THE COURT'S OWN INITIATIVE.  IF THE JUDGE
NEEDS TIME FOR REFLECTION AS TO THE PROPRIETY OF A NEW TRIAL, HE IS AT
LIBERTY TO TAKE IT BEFORE DENYING A TIMELY MADE MOTION THEREFOR. 

SUPPORT FOR THE INTERPRETATION URGED BY RESPONDENT RISES FROM FEAR OF
MISCARRIAGE OF JUSTICE.  NEW TRIALS, HOWEVER, MAY BE GRANTED FOR ERROR
OCCURRING AT THE TRIAL OR FOR REASONS WHICH WERE NOT PART OF THE
COURT'S KNOWLEDGE AT THE TIME OF JUDGMENT.  FOR THE LATTER, THE RULES
MAKE ADEQUATE PROVISION.  NEWLY-DISCOVERED EVIDENCE MAY BE MADE GROUND
FOR MOTION FOR NEW TRIAL WITHIN TWO YEARS AFTER JUDGMENT.  RULE 33. 
FOR THE FORMER, HABEAS CORPUS PROVIDES A REMEDY FOR JURISDICTIONAL AND
CONSTITUTIONAL ERRORS AT THE TRIAL, WITHOUT LIMIT OF TIME.  JOHNSON V.
ZERBST, 304 U.S. 458; WALKER V. JOHNSTON, 312 U.S. 275; WALEY V.
JOHNSTON, 316 U.S. 101; ADAMS V. UNITED STATES EX REL. MCCANN, 317 U.S.
269.  POSSIBILITY OF UNREDRESSED INJUSTICE THEREFORE REMAINS ONLY IN
PREJUDICIAL HAPPENINGS DURING TRIAL.  FN4  THE TRIAL JUDGE IS GIVEN
POWER BY THE RULES TO ENTERTAIN MOTIONS FOR NEW TRIAL WITHIN FIVE DAYS
AFTER VERDICT AND MAY EXTEND THAT TIME FOR SO LONG AS HE THINKS
NECESSARY FOR PROPER CONSIDERATION OF THE COURSE OF THE TRIAL.  BUT
EXTENSION OF THAT TIME INDEFINITELY IS NO INSURANCE OF JUSTICE.  ON THE
CONTRARY, AS TIME PASSES, THE PECULIAR ABILITY WHICH THE TRIAL JUDGE
HAS TO PASS ON THE FAIRNESS OF THE TRIAL IS DISSIPATED AS THE INCIDENTS
AND NUANCES OF THE TRIAL LEAVE HIS MIND TO GIVE WAY TO IMMEDIATE
BUSINESS.  IT IS IN THE INTEREST OF JUSTICE THAT A DECISION ON THE
PROPRIETY OF A TRIAL BE REACHED AS SOON AFTER IT HAS ENDED AS IS
POSSIBLE, AND THAT DECISION BE NOT DEFERRED UNTIL THE TRIAL'S STORY HAS
TAKEN ON THE UNCERTAINTY AND DIMNESS OF THINGS LONG PAST. 

A MAJORITY OF THE COURT OF APPEALS THOUGHT IT A SHOCKING SUGGESTION
THAT ON MATURE REFLECTION A DISTRICT JUDGE MAY NOT CORRECT AN INJUSTICE
BECAUSE HIS FIRST REACTION WAS DIFFERENT.  WE DOUBT IF MANY CASES WILL
OCCUR IN WHICH VERY SHOCKING INJUSTICES WILL SURVIVE AFTER THE TRIAL
COURT DENIES A MOTION BASED ON DETAILED RECITAL OF GROUNDS FOR NEW
TRIAL AND A COURT OF APPEALS AFFIRMS.  THIS POSSIBILITY SEEMS TOO
REMOTE TO INDUCE US TO HOLD THAT A TRIAL COURT'S DENIAL OF A NEW TRIAL,
AFFIRMED ON APPEAL, HAS NO FINALITY AND THAT A TRIAL JUDGE MAY, EVEN
AFTER SERVICE OF A SENTENCE HAS BEGUN, SET THE WHOLE PROCEEDINGS ASIDE
AND START OVER - IF INDEED A NEW START WOULD NOT ALSO BE FORBIDDEN. 
FN5 

WE HOLD THAT THE GOVERNMENT WAS ENTITLED TO THE RELIEF SOUGHT.  THE
JUDGMENT IS ACCORDINGLY REVERSED WITH DIRECTION THAT WRITS ISSUE TO
EFFECT VACATION OF THE ORDER FOR NEW TRIAL.  JUDGMENT REVERSED. 

FN1  SECTION 269 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 391, PROVIDES
LESS GENERALLY THAT "ALL UNITED STATES COURTS SHALL HAVE POWER TO GRANT
NEW TRIALS, IN CASES WHERE THERE HAS BEEN A TRIAL BY JURY, FOR REASONS
FOR WHICH NEW TRIALS HAVE USUALLY BEEN GRANTED IN THE COURTS OF LAW." 
THAT SECTION, LIKE RULE 33, DOES NOT EXPRESSLY PUT A LIMIT OF TIME ON
THE POWER GRANTED, YET IT WAS NEVER SUGGESTED THAT IT GAVE DISTRICT
COURTS POWER TO GRANT A NEW TRIAL AT ANY TIME.  IT MAY BE SAID THAT THE
TERM RULE APPLIED, BUT THE FIRST SENTENCE OF SEC. 269 MIGHT AS READILY
HAVE BEEN INTERPRETED AS AN EXCEPTION TO THAT RULE AS THE FIRST
SENTENCE OF THE PRESENT RULE MAY BE CONSTRUED TO BE RESTRICTED BY NO
PERIOD OF TIME. 

IT MAY BE WORTHY OF NOTE THAT RULE 33 PROVIDES THAT A COURT MAY GRANT
A NEW TRIAL TO A DEFENDANT, AND DOES NOT SAY THAT THE COURT MAY ORDER A
NEW TRIAL. 

FN2  BEFORE THE NEW RULES, THERE WAS NO QUESTION THAT THE POWER OF
THE TRIAL JUDGE TO GRANT A NEW TRIAL WAS LIMITED BY THE DURATION OF THE
TERM.  UNITED STATES V. MAYER, SUPRA.  IF THE RULES HAD EXTENDED THAT
POWER INDEFINITELY, IT WOULD SEEM THAT CONSIDERABLE COMMENT ON THIS
FUNDAMENTAL CHANGE WOULD HAVE BEEN CALLED FORTH.  YET HARDLY ANYONE
SUGGESTED THAT RULE 33 MEANS WHAT RESPONDENT CONTENDS IT DOES.  BUT CF.
STEWART, COMMENTS ON FEDERAL RULES OF CRIMINAL PROCEDURE, 8 JOHN
MARSHALL L.Q. 296, 303.  THE RULES, IN ABOLISHING THE TERM RULE, DID
NOT SUBSTITUTE INDEFINITENESS.  ON THE CONTRARY, PRECISE TIMES,
INDEPENDENT OF THE TERM, WERE PRESCRIBED.  THE POLICY OF THE RULES WAS
NOT TO EXTEND POWER INDEFINITELY BUT TO CONFINE IT WITHIN CONSTANT TIME
PERIODS.  SEE NOTES TO RULES OF CRIMINAL PROCEDURE, RULE 45.    FN3
NOR NEED WE DECIDE WHETHER HIS INTERVENTION IN THIS CASE IN SUPPORT OF
THE TRIAL JUDGE'S POWER AMOUNTS TO A CONSENT TO A SECOND TRIAL.    FN4
ALTHOUGH THIS COURT HAS RESERVED DECISION ON WHETHER THE FEDERAL
DISTRICT COURTS ARE EMPOWERED TO ENTERTAIN PROCEEDINGS IN THE NATURE OF
CORAM NOBIS "TO BRING BEFORE THE COURT THAT PRONOUNCED THE JUDGMENT
ERRORS IN MATTERS OF FACT WHICH HAD NOT BEEN PUT IN ISSUE OR PASSED
UPON AND WERE MATERIAL TO THE VALIDITY AND REGULARITY OF THE LEGAL
PROCEEDING ITSELF  ...  ," UNITED STATES V. MAYER, 235 U.S. 55, 68, IT
IS DIFFICULT TO CONCEIVE OF A SITUATION IN A FEDERAL CRIMINAL CASE
TODAY WHERE THAT REMEDY WOULD BE NECESSARY OR APPROPRIATE.  OF COURSE,
THE FEDERAL COURTS HAVE POWER TO INVESTIGATE WHETHER A JUDGMENT WAS
OBTAINED BY FRAUD AND MAKE WHATEVER MODIFICATION IS NECESSARY, AT ANY
TIME.  UNIVERSAL OIL CO. V. ROOT REFINING CO., 328 U.S. 575. 

FN5  WHEN THE DRAFTSMEN OF THE RULES OF CIVIL PROCEDURE, ADOPTED LONG
BEFORE THE CRIMINAL RULES, WANTED TO GIVE THE TRIAL JUDGE POWER TO
GRANT A NEW TRIAL ON HIS OWN INITIATIVE, THEY DID SO IN EXPRESS WORDS. 
RULE 59(D), RULES OF CIVIL PROCEDURE. 
..END :







MYERS V. READING CO., 331 U.S. 477 


NO. 367.  ARGUED FEBRUARY 6, 1947.  - DECIDED JUNE 2, 1947.  - 155 F.2D
523, REVERSED. 


1.  IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, BY AN
EMPLOYEE AGAINST A CARRIER TO RECOVER DAMAGES FOR PERSONAL INJURIES
ALLEGED TO HAVE BEEN CAUSED BY THE DEFENDANT'S USE, IN VIOLATION OF THE
SAFETY APPLIANCE ACTS, OF A FREIGHT CAR NOT EQUIPPED WITH EFFICIENT
HAND BRAKES, THE EVIDENCE AT THE TRIAL, WITH THE INFERENCES THAT THE
JURY JUSTIFIABLY COULD DRAW FROM IT, WAS SUFFICIENT TO SUPPORT THE
VERDICT FOR THE PLAINTIFF; AND IT WAS ERROR TO ENTER JUDGMENT FOR THE
DEFENDANT NOTWITHSTANDING THE VERDICT.  PP. 478-486. 

2.  ALTHOUGH A CARRIER IS NOT SUBJECT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT TO AN ABSOLUTE LIABILITY TO ITS EMPLOYEES FOR INJURIES,
IT IS SUBJECT TO LIABILITY FOR INJURIES RESULTING FROM A VIOLATION OF
ITS ABSOLUTE DUTY TO COMPLY WITH THE SAFETY APPLIANCE ACTS.  P. 485. 

MYERS V. READING COMPANY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

NOTWITHSTANDING A VERDICT FOR THE PLAINTIFF IN A SUIT UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT AND THE SAFETY APPLIANCE ACTS, THE
DISTRICT COURT ENTERED JUDGMENT FOR THE DEFENDANT.  63 F.SUPP.  817. 
THE CIRCUIT COURT OF APPEALS AFFIRMED.  155 F.2D 523.  THIS COURT
GRANTED CERTIORARI.  329 U.S. 699.  REVERSED, P. 486. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS ACTION FOR DAMAGES ALLEGED TO HAVE BEEN CAUSED TO THE PETITIONER
BY THE RESPONDENT'S USE, IN VIOLATION OF THE SAFETY APPLIANCE ACTS,
FN1  OF A RAILROAD FREIGHT CAR NOT EQUIPPED WITH EFFICIENT HAND BRAKES,
PRESENTS THE QUESTION WHETHER THE EVIDENCE AT THE TRIAL, WITH THE
INFERENCES THAT THE JURY JUSTIFIABLY COULD DRAW FROM IT, WAS SUFFICIENT
TO SUPPORT THE VERDICT FOR THE PETITIONER.  WE HOLD THAT IT WAS. 

THE ACTION WAS BROUGHT IN THE DISTRICT COURT OF THE UNITED STATES FOR
THE EASTERN DISTRICT OF PENNSYLVANIA BY THE PETITIONER, JOHN MYERS,
AGAINST HIS EMPLOYER, THE READING COMPANY.  HE CLAIMED THAT HE RECEIVED
PERSONAL INJURIES CAUSED BY THE RESPONDENT'S USE IN INTERSTATE
COMMERCE, IN ITS RAILROAD YARDS AT PORT RICHMOND, PHILADELPHIA, OF A
FREIGHT CAR EQUIPPED WITH A DEFECTIVE HAND BRAKE IN VIOLATION OF THE
SAFETY APPLIANCE ACTS REQUIRING SUCH CARS TO BE EQUIPPED WITH
"EFFICIENT HAND BRAKES."  FN2  AT THE CLOSE OF THE EVIDENCE, RESPONDENT
MOVED FOR A DIRECTED VERDICT.  THE MOTION WAS NOT GRANTED, AND THE JURY
RETURNED A VERDICT FOR $5,000 IN FAVOR OF THE PETITIONER.  THE
RESPONDENT THEN MOVED TO HAVE THE VERDICT SET ASIDE AND TO HAVE
JUDGMENT ENTERED IN ITS FAVOR.  FN3  ON DECEMBER 28, 1945, THIS MOTION
WAS GRANTED AND JUDGMENT WAS SO ENTERED.  63 F.SUPP.  817.  ON MAY 29,
1946, THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED THE
JUDGMENT, PER CURIAM.  155 F.2D 523.  WE GRANTED CERTIORARI IN ORDER TO
REVIEW THIS PROCEDURE, IN A CASE BASED UPON A VIOLATION OF THE SAFETY
APPLIANCE ACTS, IN THE LIGHT OF OUR DECISION RENDERED ON MARCH 25,
1946, IN LAVENDER V. KURN, 327 U.S. 645, SUBSEQUENT TO THE TRIAL OF
THIS CASE. 

THE PETITIONER TESTIFIED TO THE FOLLOWING: 

ON JUNE 11, 1944, HE WAS WORKING FOR THE RESPONDENT AS A FREIGHT
CONDUCTOR IN CHARGE OF A CREW CONSISTING OF AN ENGINEER, A FIREMAN AND
TWO BRAKEMEN.  HE HAD BEEN EMPLOYED BY THE RESPONDENT FOR SIX OR SEVEN
YEARS, RISING FROM THE RANK OF CROSSING WATCHMAN TO THAT OF CONDUCTOR
AND, FOR FIVE OR SIX MONTHS IMMEDIATELY PRECEDING JUNE 11, HE HAD
WORKED PRACTICALLY EVERY DAY IN THE JOB IN WHICH HE WAS ENGAGED WHEN
INJURED.  AT ABOUT NINE O'CLOCK THAT EVENING HIS CREW MOVED A STRING OF
SEVEN COAL CARS ON TO A YARD TRACK WHERE THE CREW COUPLED THOSE CARS TO
THREE OTHERS.  ONE OF THE BRAKEMEN, NEW ON THE JOB THAT DAY, MADE THE
COUPLING AND THE PETITIONER DIRECTED HIM "TO TIE THE HANDBRAKES ON" -
THAT IS, TO TIGHTEN THEM SO AS TO INSURE AGAINST FURTHER MOVEMENTS OF
THE CARS ON THE SLIGHTLY GRADED TRACK.  THE BRAKEMAN DID THIS, BUT
BEFORE THE PETITIONER LEFT THE CARS HE CHECKED THEM OVER AND SAW THAT
THE BRAKES WERE NOT ALL ON, BECAUSE ONE BRAKE CHAIN, INSTEAD OF BEING
WRAPPED AROUND THE SHAFT, WAS HANGING LOOSE.  HE CLIMBED UP ON THE
BRAKE PLATFORM, EIGHT FEET ABOVE THE GROUND, ON THE CAR WHERE THE HAND
BRAKE WAS NOT SET, AND TRIED TO SET IT BY TURNING THE BRAKE WHEEL. 
WHILE DOING THIS, HE CARRIED HIS SIGNALING LANTERN ON HIS LEFT ARM WITH
HIS HAND THROUGH THE HANDLE.  AS TO THE CONDITION AND OPERATION OF THE
BRAKE HE TESTIFIED: 

"A.  I WAS TIGHTENING THE BRAKE - IT WAS KIND OF STIFF AND STICKING -
IT WAS PRETTY HARD TO SIGNAL WITH THE ONE HAND AND TO GET THE BRAKE
ON. 

"Q.  WITH THE ORDINARY BRAKE WHEEL, DO YOU HAVE THE DIFFICULTY THAT
YOU HAD WITH THIS WHEEL? 

"A.  NOT ORDINARILY. 

"Q.  WHAT WAS THE DIFFERENCE BETWEEN THIS WHEEL AND THE ORDINARY
WHEEL? 

"A.  IT WAS KIND OF STIFF, AND LIKE A SPRING - LIKE A SHOE KICKING
BACK. 

"Q.  AND YOU STARTED TO TRY TO SET IT? 

"A.  THAT IS RIGHT. 

     .         .         .         .         . 

"A.  AS I WAS TIGHTENING THE BRAKE - JUST THAT QUICK - I FELT
SOMETHING LIKE THE SLACK BEING RUN OUT, GETTING READY TO UNCOUPLE. 

"Q.  WHAT DID YOU FEEL ON YOUR CAR? 

"A.  A QUICK JAR, AND I TOOK THIS HAND TO SIGNAL 'STOP.' 
(INDICATING.) 

"Q.  WHAT DID YOU SIGNAL? 

"A.  I SIGNALED 'STOP' THE BEST I COULD AND HOLD ON, BUT I WENT DOWN;
I LOST MY HOLD AND DOWN I WENT. 

"Q.  WHAT HAPPENED TO THE WHEEL ON THE HAND-BRAKE WHILE YOU WERE
HOLDING THE WHEEL? 

"A.  THAT KICKED BACK. 

"Q.  WHAT DO YOU MEAN BY THAT? 

"A.  I WAS PUTTING IT ON THIS WAY (INDICATING), AND IT KICKED RIGHT
BACK OFF. 

"Q.  COULD YOU HOLD IT? 

"A.  NO, I COULDN'T. 

"Q.  WAS IT PULLED ALL THE WAY ON? 

"A.  OH, NO. 

"Q.  WHAT HAPPENED TO YOU? 

"A.  DOWN I WENT."  FN4 

THE JURY FOUND, IN A SPECIAL VERDICT, THAT THE BRAKE WAS NOT AN
EFFICIENT BRAKE; THAT ITS INEFFICIENCY CONTRIBUTED TO OR CAUSED
INJURIES TO THE PETITIONER; THAT THE TRAIN DID NOT MOVE AFTER THE SEVEN
SHIFTED CARS WERE COUPLED TO THE THREE STANDING CARS; AND THAT THE
PETITIONER WAS NOT THROWN FROM A MOVING TRAIN.  FN5  THE JURY THUS
REACHED FACTUAL CONCLUSIONS SUPPORTING ITS GENERAL VERDICT FOR THE
PETITIONER, AND REDUCING THE LEGAL BASIS FOR RECOVERY TO THE
RESPONDENT'S USE OF A CAR NOT EQUIPPED WITH EFFICIENT HAND BRAKES. 

THE ONLY QUESTION BEFORE US IS WHETHER THERE WAS SUFFICIENT PROBATIVE
EVIDENCE, WITH THE INFERENCES THAT THE JURY COULD DRAW FROM IT, TO
SUPPORT THE VERDICT FOR THE PETITIONER. 

THERE WAS AN ABSOLUTE AND UNQUALIFIED PROHIBITION AGAINST THE
RESPONDENT'S USING OR PERMITTING TO BE USED, ON ITS LINE, ANY CAR NOT
EQUIPPED WITH "EFFICIENT HAND BRAKES."  FN6  IN SPEAKING OF A LIKE
PROHIBITION, IMPOSED BY THE SAME SECTION OF THE SAFETY APPLIANCE ACTS,
AGAINST THE USE OF ANY CAR NOT EQUIPPED WITH "SECURE HAND HOLDS OR GRAB
IRONS," MR. CHIEF JUSTICE HUGHES SAID: 

"THIS FINAL QUESTION MUST BE DETERMINED IN THE LIGHT OF THE NATURE OF
THE OBLIGATION RESTING UPON THE CARRIER IN RELATION TO THE USE OF A
DEFECTIVE CAR.  THE STATUTORY LIABILITY IS NOT BASED UPON THE CARRIER'S
NEGLIGENCE.  THE DUTY IMPOSED IS AN ABSOLUTE ONE AND THE CARRIER IS NOT
EXCUSED BY ANY SHOWING OF CARE HOWEVER ASSIDUOUS."  BRADY V. TERMINAL
R. ASSN., 303 U.S. 10, 15, AND CASES THERE CITED. 

SEE ALSO, ATLANTIC CITY R. CO. V. PARKER, 242 U.S. 56, 59(AUTOMATIC
COUPLERS REQUIRED BY 27 STAT. 531, 45 U.S.C. SEC. 2); GREAT NORTHERN R.
CO. V. OTOS, 239 U.S. 349, 351(COUPLERS); CHICAGO, B. & Q.R. CO. V.
UNITED STATES, 220 U.S. 559, 574-575; ST. LOUIS & IRON MOUNTAIN R. CO.
V. TAYLOR, 210 U.S. 281, 294-295(COUPLERS AND DRAWBARS); SPOTTS V.
BALTIMORE & O.R. CO., 102 F.2D 160, 162(HAND BRAKES). 

THIS SIMPLIFIES THE ISSUE BEYOND THAT PRESENTED IN THE ORDINARY CASE
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT WHERE THE PLAINTIFF MUST
ESTABLISH THE NEGLIGENCE OF HIS EMPLOYER.  HERE IT IS NOT NECESSARY TO
FIND NEGLIGENCE.  A RAILROAD SUBJECT TO THE SAFETY APPLIANCE ACTS MAY
BE FOUND LIABLE IF THE JURY REASONABLY CAN INFER FROM THE EVIDENCE
MERELY THAT THE HAND BRAKE WHICH CAUSED THE INJURIES WAS ON A CAR WHICH
THE RAILROAD WAS THEN USING ON ITS LINE, IN INTERSTATE COMMERCE, AND
THAT THE BRAKE WAS NOT AN "EFFICIENT" HAND BRAKE.  FURTHERMORE - 

"THERE ARE TWO RECOGNIZED METHODS OF SHOWING THE INEFFICIENCY OF HAND
BRAKE EQUIPMENT.  EVIDENCE MAY BE ADDUCED TO ESTABLISH SOME PARTICULAR
DEFECT, OR THE SAME INEFFICIENCY MAY BE ESTABLISHED BY SHOWING A
FAILURE TO FUNCTION, WHEN OPERATED WITH DUE CARE, IN THE NORMAL,
NATURAL, AND USUAL MANNER."  DIDINGER V. PENNSYLVANIA R. CO., 39 F.2D
798, 799. 

"PROOF OF AN ACTUAL BREAK OR VISIBLE DEFECT IN A COUPLING APPLIANCE
IS NOT A PREREQUISITE TO A FINDING THAT THE STATUTE HAS BEEN VIOLATED. 
WHERE A JURY FINDS THAT THERE IS A VIOLATION, IT WILL BE SUSTAINED, IF
THERE IS PROOF THAT THE MECHANISM FAILED TO WORK EFFICIENTLY AND
PROPERLY EVEN THOUGH IT WORKED EFFICIENTLY BOTH BEFORE AND AFTER THE
OCCASION IN QUESTION.  THE TEST IN FACT IS THE PERFORMANCE OF THE
APPLIANCE.  PHILADELPHIA & R.R. CO. V. AUCHENBACH, 3 CIR., 16 F.2D
550.  EFFICIENT MEANS ADEQUATE IN PERFORMANCE; PRODUCING PROPERLY A
DESIRED EFFECT.  INEFFICIENT MEANS NOT PRODUCING OR NOT CAPABLE OF
PRODUCING THE DESIRED EFFECT; INCAPABLE; INCOMPETENT; INADEQUATE.  ... 

    .         .         .         .         . 

"  ...  THE TESTIMONY OF PLAINTIFF THAT THE BRAKE WAS USED IN THE
NORMAL AND USUAL MANNER AND FAILED TO WORK EFFICIENTLY BUT DID SO
INEFFICIENTLY, THROWING HIM TO THE GROUND, IS SUCH SUBSTANTIAL EVIDENCE
OF INEFFICIENCY AS TO MAKE AN ISSUE FOR THE JURY.  DETROIT, T. & I.R.
CO. V. HAHN, 6 CIR., 47 F.2D 59.  IN OTHER WORDS, WE CANNOT SAY AS A
MATTER OF LAW THAT ANY AND ALL INFERENCES WHICH THE JURY MIGHT
REASONABLY DRAW FROM THE EVIDENCE WOULD SUPPORT ONLY A VERDICT FOR
DEFENDANT AND NOT ONE FOR PLAINTIFF."  SPOTTS V. BALTIMORE & O.R. CO.,
SUPRA, AT P. 162.  SEE ALSO, WILD V. PITCAIRN, 347 MO. 915, 149 S.W.2D
800; AND NEWKIRK V. LOS ANGELES JUNCTION R. CO., 21 CAL.2D 308, 131
P.2D 535. 

THE INEFFICIENCY OF THE BRAKE IN THIS CASE MAY HAVE CONSISTED OF ITS
DEFECTIVE CONDITION OR ITS DEFECTIVE FUNCTIONAL OPERATION RESULTING, IN
EITHER CASE, IN ITS KNOCKING FROM THE BRAKE PLATFORM AN EXPERIENCED
RAILROAD MAN ATTEMPTING TO TIGHTEN OR SET THE BRAKE IN THE CUSTOMARY
MANNER DESCRIBED IN HIS TESTIMONY.  THAT TESTIMONY WAS NOT DESCRIPTIVE
OF PRECISE MECHANICAL DEFECTS IN THE STRUCTURE OF THE BRAKE.  IT WAS,
HOWEVER, SIMPLE AND DIRECT TESTIMONY FROM WHICH A JURY REASONABLY MIGHT
INFER THE BRAKE'S DEFECTIVENESS AND ITS INEFFICIENCY IN THE SENSE
NECESSARY TO ESTABLISH A VIOLATION OF THE SAFETY APPLIANCE ACTS.  AFTER
A BRAKEMAN HAD ATTEMPTED TO SET ALL OF THE BRAKES, THE CHAIN ON THIS
BRAKE STILL HUNG LOOSE, INDICATING THAT IT WAS NOT SET.  WHEN THE BRAKE
WAS PARTIALLY TIGHTENED BY AN EXPERIENCED FREIGHT CONDUCTOR FAMILIAR
WITH THAT KIND OF AN OPERATION, HE FOUND THAT IT DIFFERED FROM THE
ORDINARY BRAKE.  HE FOUND THAT "IT WAS KIND OF STIFF, AND LIKE A SPRING
- LIKE A SHOE KICKING BACK."  WHILE HE WAS HOLDING THE WHEEL, BEFORE IT
WAS "PULLED ALL THE WAY ON," IT "KICKED BACK," HE COULDN'T HOLD IT, AND
"DOWN" HE WENT.  THIS RESULTED IN SERIOUS INJURIES TO HIS HAND AND
BACK.  WHILE DIFFERENT CONCLUSIONS MIGHT BE POSSIBLE, THE JURY, WHICH
HEARD THE TESTIMONY AND SAW THE PETITIONER'S ILLUSTRATIONS OF HIS
HANDLING OF THE BRAKE, REASONABLY COULD INFER FROM THAT EVIDENCE THAT
THE CONDITION OF THIS BRAKE AND ITS ACTION WERE NOT THOSE OF AN
EFFICIENT HAND BRAKE. 

THE QUESTIONS AT ISSUE WERE QUESTIONS OF FACT.  THE JURY WAS ENTITLED
TO DRAW INFERENCES FROM THE EVIDENCE.  FROM THE EVIDENCE PRESENTED, THE
JURY REASONABLY COULD FIND, AS IT DID IN ITS SPECIAL VERDICT, (1) THAT
THE BRAKE WAS NOT AN EFFICIENT BRAKE, AND (2) THAT THE FACT THAT THE
BRAKE WAS NOT AN EFFICIENT BRAKE CONTRIBUTED TO OR CAUSED INJURY TO THE
PETITIONER.  IN THE FACE OF THIS, THE TRIAL COURT ERRED IN ENTERING A
JUDGMENT FOR THE RESPONDENT IN ACCORDANCE WITH THE MOTION FOR A
DIRECTED VERDICT. 

THE RESPONDENT IS NOT SUBJECT, AS HAS BEEN SUGGESTED, TO AN ABSOLUTE
LIABILITY TO ITS EMPLOYEES COMPARABLE TO THAT ESTABLISHED BY A
WORKMEN'S COMPENSATION LAW.  FN7  AS AN INTERSTATE COMMON CARRIER,
HOWEVER, IT IS SUBJECT TO LIABILITY FOR INJURIES TO ITS EMPLOYEES
RESULTING FROM ITS VIOLATION OF ITS ABSOLUTE DUTY TO COMPLY WITH THE
SAFETY APPLIANCE ACTS.  THE EVIDENCE HERE WAS SUFFICIENT TO SUPPORT THE
VERDICT FOR THE PETITIONER, WHETHER TESTED BY THE FORMULA USED BY THIS
COURT IN IMPROVEMENT CO. V. MUNSON, 14 WALL.  442; SLOCUM V. NEW YORK
LIFE INS. CO., 228 U.S. 364; TENNANT V. PEORIA & P.U.R. CO., 321 U.S.
29; OR LAVENDER V. KURN, SUPRA.  THE REQUIREMENT IS FOR PROBATIVE FACTS
CAPABLE OF SUPPORTING, WITH REASON, THE CONCLUSION EXPRESSED IN THE
VERDICT. 

"PETITIONER WAS REQUIRED TO PRESENT PROBATIVE FACTS FROM WHICH THE
NEGLIGENCE AND THE CAUSAL RELATION COULD REASONABLY BE INFERRED.  'THE
ESSENTIAL REQUIREMENT IS THAT MERE SPECULATION BE NOT ALLOWED TO DO
DUTY FOR PROBATIVE FACTS, AFTER MAKING DUE ALLOWANCE FOR ALL REASONABLY
POSSIBLE INFERENCES FAVORING THE PARTY WHOSE CASE IS ATTACKED.' 
GALLOWAY V. UNITED STATES, 319 U.S. 372, 395; ...  "  TENNANT V. PEORIA
& P.U.R. CO., SUPRA, AT PP. 32-33. 

SEE ALSO, BLAIR V. BALTIMORE & O.R. CO., 323 U.S. 600; BRADY V.
SOUTHERN R. CO., 320 U.S. 476; PENNSYLVANIA R. CO. V. CHAMBERLAIN, 288
U.S. 333, 343; WESTERN & A.R. CO. V. HUGHES, 278 U.S. 496; AND
BALTIMORE & O.R. CO. V. GROEGER, 266 U.S. 521, 524. 

"ONLY WHEN THERE IS A COMPLETE ABSENCE OF PROBATIVE FACTS TO SUPPORT
THE CONCLUSION REACHED DOES A REVERSIBLE ERROR APPEAR.  BUT WHERE, AS
HERE, THERE IS AN EVIDENTIARY BASIS FOR THE JURY'S VERDICT, THE JURY IS
FREE TO DISCARD OR DISBELIEVE WHATEVER FACTS ARE INCONSISTENT WITH ITS
CONCLUSION.  AND THE APPELLATE COURT'S FUNCTION IS EXHAUSTED WHEN THAT
EVIDENTIARY BASIS BECOMES APPARENT, IT BEING IMMATERIAL THAT THE COURT
MIGHT DRAW A CONTRARY INFERENCE OR FEEL THAT ANOTHER CONCLUSION IS MORE
REASONABLE."  LAVENDER V. KURN, SUPRA, AT P. 653.    WE BELIEVE THAT
THE EVIDENCE GIVEN AT THE TRIAL, WITH THE INFERENCES THAT THE JURY
JUSTIFIABLY COULD DRAW FROM IT, WAS SUFFICIENT TO SUPPORT THE VERDICT
ORIGINALLY RENDERED FOR THE PETITIONER.  ACCORDINGLY, THE JUDGMENT OF
THE CIRCUIT COURT OF APPEALS SUSTAINING THE JUDGMENT ENTERED FOR THE
RESPONDENT BY THE DISTRICT COURT IS HEREBY REVERSED. 

FN1  "SEC.  2.  ...  , IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER
SUBJECT TO THE PROVISIONS OF THIS ACT (OF APRIL 14, 1910) TO HAUL, OR
PERMIT TO BE HAULED OR USED ON ITS LINE ANY CAR SUBJECT TO THE
PROVISIONS OF THIS ACT NOT EQUIPPED WITH APPLIANCES PROVIDED FOR IN
THIS ACT, TO WIT:  ALL CARS MUST BE EQUIPPED WITH SECURE SILL STEPS AND
EFFICIENT HAND BRAKES; ALL CARS REQUIRING SECURE LADDERS AND SECURE
RUNNING BOARDS SHALL BE EQUIPPED WITH SUCH LADDERS AND RUNNING BOARDS,
AND ALL CARS HAVING LADDERS SHALL ALSO BE EQUIPPED WITH SECURE HAND
HOLDS OR GRAB IRONS ON THEIR ROOFS AT THE TOPS OF SUCH LADDERS:  ...  "
36 STAT. 298, 45 U.S.C. SEC. 11. 

FN2  SEE NOTE 1, SUPRA. 

FN3  "RULE 50.  MOTION FOR A DIRECTED VERDICT. 

     .         .         .         . . 

"(B)  RESERVATION OF DECISION ON MOTION....  WITHIN 10 DAYS AFTER THE
RECEPTION OF A VERDICT, A PARTY WHO HAS MOVED FOR A DIRECTED VERDICT
MAY MOVE TO HAVE THE VERDICT AND ANY JUDGMENT ENTERED THEREON SET ASIDE
AND TO HAVE JUDGMENT ENTERED IN ACCORDANCE WITH HIS MOTION FOR A
DIRECTED VERDICT; ...  IF A VERDICT WAS RETURNED THE COURT MAY ALLOW
THE JUDGMENT TO STAND OR MAY REOPEN THE JUDGMENT AND EITHER ORDER A NEW
TRIAL OR DIRECT THE ENTRY OF JUDGMENT AS IF THE REQUESTED VERDICT HAD
BEEN DIRECTED.  ...  "  FEDERAL RULES OF CIVIL PROCEDURE. 

FN4  FURTHER TESTIMONY STATED THAT HIS INJURIES WERE DUE TO THIS
FALL.  OTHER TESTIMONY SUPPORTED THE PETITIONER'S CLAIM, UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, 53 STAT. 1404, 45 U.S.C.
SEC. 51, THAT THE RESPONDENT WAS NEGLIGENT IN MOVING THE TRAIN WHILE
THE PETITIONER WAS TRYING TO TIGHTEN THE BRAKE AND WITHOUT ANY
DIRECTION FROM HIM.  THIS CHARGE, HOWEVER, WAS DISPOSED OF BY THE
SPECIAL VERDICT OF THE JURY, STATING THAT THE TRAIN DID NOT MOVE, THUS
STRENGTHENING THE PROBATIVE FORCE OF THE TESTIMONY THAT THE
PETITIONER'S FALL WAS CAUSED BY THE STIFFNESS AND KICKBACK OF THE
BRAKE. 

FN5  THE SPECIAL VERDICT WAS AS FOLLOWS: 

"1.  WAS THE BRAKE IN QUESTION AN EFFICIENT BRAKE? 

ANSWER 'YES' OR 'NO.'  (ANSWER) NO. 

"2.  IF YOU FIND THAT THE BRAKE IN QUESTION WAS NOT AN EFFICIENT
BRAKE, DID THAT FACT CONTRIBUTE TO OR CAUSE ANY INJURIES TO THE
PLAINTIFF? 

ANSWER 'YES' OR 'NO.'  (ANSWER) YES. 

"3.  DID THE TRAIN MOVE AFTER THE SEVEN SHIFTED CARS WERE COUPLED TO
THE THREE STANDING CARS? 

ANSWER 'YES' OR 'NO.'  (ANSWER) NO. 

"4.  IF YOU FIND THAT THE TRAIN MOVED AFTER THE CARS WERE COUPLED,
DID THAT FACT CONTRIBUTE TO OR CAUSE ANY INJURIES SUSTAINED BY THE
PLAINTIFF? 

ANSWER 'YES' OR 'NO.'  (ANSWER) NO. 

"5.  WAS THE PLAINTIFF THROWN FROM A MOVING TRAIN? 

ANSWER 'YES' OR 'NO.'  (ANSWER) NO. 

"6.  DID THE PLAINTIFF BECOME ILL WHILE WALKING ON THE GROUND,
WITHOUT HAVING BEEN THROWN FROM THE TRAIN? 

ANSWER 'YES' OR 'NO.'  (ANSWER) NO." 

FN6  SEE NOTE 1, SUPRA. 

FN7  SEE GRISWOLD V. GARDNER, 155 F.2D 333, 334, 337. 
..END :



CRAIG V. HARNEY, 331 U.S. 367 


NO. 241.  ARGUED JANUARY 9, 1947.  - DECIDED MAY 19, 1947.  - 149 TEX.
CR. - , 193 S.W.2D 178, REVERSED. 


1.  THE PUBLICATION IN A NEWSPAPER OF NEWS ARTICLES, WHICH UNFAIRLY
REPORTED EVENTS IN A CASE PENDING IN A STATE COURT, AND AN EDITORIAL,
WHICH VEHEMENTLY ATTACKED THE TRIAL JUDGE (A LAYMAN ELECTED FOR A SHORT
TERM) WHILE A MOTION FOR A NEW TRIAL WAS PENDING, DID NOT, IN THE
CIRCUMSTANCES OF THIS CASE, CONSTITUTE A CLEAR AND PRESENT DANGER TO
THE ADMINISTRATION OF JUSTICE; AND THE CONVICTION OF THE NEWSPAPERMEN
FOR CONTEMPT VIOLATED THE FREEDOM OF THE PRESS GUARANTEED BY THE FIRST
AND FOURTEENTH AMENDMENTS.  FOLLOWING BRIDGES V. CALIFORNIA, 314 U.S.
252, AND PENNEKAMP V. FLORIDA, 328 U.S. 331.  PP. 368-370, 375-378. 

2.  THE PRESENT CASE IS ONE OF THE TYPE IN WHICH THIS COURT IS
REQUIRED TO MAKE AN INDEPENDENT EXAMINATION OF THE FACTS TO DETERMINE
WHETHER A STATE HAS DEPRIVED A PERSON OF A FUNDAMENTAL RIGHT SECURED BY
THE CONSTITUTION.  PP. 373-374. 

3.  THERE IS NO SPECIAL PERQUISITE OF THE JUDICIARY WHICH ENABLES IT,
AS DISTINGUISHED FROM OTHER INSTITUTIONS OF DEMOCRATIC GOVERNMENT, TO
SUPPRESS, EDIT, OR CENSOR REPORTS OF OCCURRENCES IN JUDICIAL
PROCEEDINGS.  P. 374. 

4.  ONE REPORTING THE NEWS OF A JUDICIAL TRIAL MAY NOT BE HELD FOR
CONTEMPT BECAUSE HE MISSED THE ESSENTIAL POINT IN THE TRIAL OR FAILED
TO SUMMARIZE THE ISSUES TO ACCORD WITH THE VIEWS OF THE TRIAL JUDGE. 
P. 375. 

5.  THE VEHEMENCE OF THE LANGUAGE USED IN A PUBLICATION CONCERNING A
PENDING CASE IS NOT ALONE THE MEASURE OF THE POWER TO PUNISH FOR
CONTEMPT; THE THREAT TO THE ADMINISTRATION OF JUSTICE MUST BE
IMMINENT.  P. 376. 

6.  THE LAW OF CONTEMPT IS NOT DESIGNED FOR THE PROTECTION OF JUDGES
WHO MAY BE SENSITIVE TO THE WINDS OF PUBLIC OPINION.  P. 376. 

7.  ALTHOUGH THE NATURE OF A CASE MAY BE RELEVANT IN DETERMINING
WHETHER THE CLEAR AND PRESENT DANGER TEST IS SATISFIED, THE RULE OF THE
BRIDGES AND PENNEKAMP CASES IS FASHIONED TO SERVE THE NEEDS OF ALL
LITIGATION, NOT MERELY PARTICULAR TYPES OF PENDING CASES.  P. 378. 

CRAIG ET AL. V. HARNEY, SHERIFF. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

PETITIONERS' APPLICATION TO A STATE COURT FOR A WRIT OF HABEAS CORPUS
TO OBTAIN THEIR RELEASE FROM IMPRISONMENT FOR CONTEMPT WAS DENIED.  193
S.W.2D 178.  THIS COURT GRANTED CERTIORARI.  329 U.S. 696.  REVERSED,
P. 378. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
REED. 

PETITIONERS WERE ADJUDGED GUILTY OF CONSTRUCTIVE CRIMINAL CONTEMPT BY
THE COUNTY COURT OF NUECES COUNTY, TEXAS, AND SENTENCED TO JAIL FOR
THREE DAYS.  THEY SOUGHT TO CHALLENGE THE LEGALITY OF THEIR CONFINEMENT
BY APPLYING TO THE COURT OF CRIMINAL APPEALS FOR A WRIT OF HABEAS
CORPUS.  FN1 THAT COURT BY A DIVIDED VOTE DENIED THE WRIT AND REMANDED
PETITIONERS TO THE CUSTODY OF THE COUNTY SHERIFF.  149 TEX. CR. - , 193
S.W.2D 178.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE PROBLEM AND BECAUSE
THE RULING OF THE TEXAS COURT RAISED DOUBTS WHETHER IT CONFORMED TO THE
PRINCIPLES ANNOUNCED IN BRIDGES V. CALIFORNIA, 314 U.S. 252, AND
PENNEKAMP V. FLORIDA, 328 U.S. 331. 

PETITIONERS ARE A PUBLISHER, AN EDITORIAL WRITER, AND A NEWS REPORTER
OF NEWSPAPERS PUBLISHED IN CORPUS CHRISTI, TEXAS.  THE COUNTY COURT HAD
BEFORE IT A FORCIBLE DETAINER CASE, JACKSON V. MAYES, WHEREBY JACKSON
SOUGHT TO REGAIN POSSESSION FROM MAYES OF A BUSINESS BUILDING IN CORPUS
CHRISTI WHICH MAYES (WHO WAS AT THE TIME IN THE ARMED SERVICES AND
WHOSE AFFAIRS WERE BEING HANDLED BY AN AGENT, ONE BURCHARD) CLAIMED
UNDER A LEASE.  THAT CASE TURNED ON WHETHER MAYES' LEASE WAS FORFEITED
BECAUSE OF NON-PAYMENT OF RENT.  AT THE CLOSE OF THE TESTIMONY EACH
SIDE MOVED FOR AN INSTRUCTED VERDICT.  THE JUDGE INSTRUCTED THE JURY TO
RETURN A VERDICT FOR JACKSON.  THAT WAS ON MAY 26, 1945.  THE JURY
RETURNED WITH A VERDICT FOR MAYES.  THE JUDGE REFUSED TO ACCEPT IT AND
AGAIN INSTRUCTED THE JURY TO RETURN A VERDICT FOR JACKSON.  THE JURY
RETURNED A SECOND TIME WITH A VERDICT FOR MAYES.  ONCE MORE THE JUDGE
REFUSED TO ACCEPT IT AND REPEATED HIS PRIOR INSTRUCTION.  IT BEING THE
EVENING OF MAY 26TH AND THE JURY NOT HAVING COMPLIED, THE JUDGE
RECESSED THE COURT UNTIL THE MORNING OF MAY 27TH.  AGAIN THE JURY
BALKED AT RETURNING THE INSTRUCTED VERDICT.  BUT FINALLY IT COMPLIED,
STATING THAT IT ACTED UNDER COERCION OF THE COURT AND AGAINST ITS
CONSCIENCE. 

ON MAY 29TH MAYES MOVED FOR A NEW TRIAL.  THAT MOTION WAS DENIED ON
JUNE 6TH.  ON JUNE 4TH AN OFFICER OF THE COUNTY COURT FILED WITH THAT
COURT A COMPLAINT CHARGING PETITIONERS WITH CONTEMPT BY PUBLICATION. 
THE PUBLICATIONS REFERRED TO WERE AN EDITORIAL AND NEWS STORIES
PUBLISHED ON MAY 26, 27, 28, 30, AND 31 IN THE NEWSPAPERS WITH WHICH
PETITIONERS ARE CONNECTED.  WE HAVE SET FORTH THE RELEVANT PARTS OF THE
PUBLICATIONS IN THE APPENDIX TO THIS OPINION.  BROWNING, THE JUDGE, WHO
IS A LAYMAN AND WHO HOLDS AN ELECTIVE OFFICE, WAS CRITICISED FOR TAKING
THE CASE FROM THE JURY.  THAT RULING WAS CALLED "ARBITRARY ACTION" AND
A "TRAVESTY ON JUSTICE."  IT WAS DEPLORED THAT A LAYMAN, RATHER THAN A
LAWYER, SAT AS JUDGE.  GROUPS OF LOCAL CITIZENS WERE REPORTED AS
PETITIONING THE JUDGE TO GRANT MAYES A NEW TRIAL AND IT WAS SAID THAT
ONE GROUP HAD LABELED THE JUDGE'S RULING AS A "GROSS MISCARRIAGE OF
JUSTICE."  IT WAS ALSO SAID THAT THE JUDGE'S BEHAVIOR HAD PROPERLY
BROUGHT DOWN "THE WRATH OF PUBLIC OPINION UPON HIS HEAD," THAT THE
PEOPLE WERE AROUSED BECAUSE A SERVICE MAN "SEEMS TO BE GETTING A RAW
DEAL," AND THAT THERE WAS "NO WAY OF KNOWING WHETHER JUSTICE WAS DONE,
BECAUSE THE FIRST RULE OF JUSTICE, GIVING BOTH SIDES AN OPPORTUNITY TO
BE HEARD, WAS REPUDIATED."  AND THE FACT THAT THERE COULD BE NO APPEAL
FROM THE JUDGE'S RULING TO A COURT "FAMILIAR WITH PROPER PROCEDURE AND
ABLE TO INTERPRET AND WEIGH MOTIONS AND ARGUMENTS BY OPPOSING COUNSEL"
WAS DEPLORED. 

THE TRIAL JUDGE CONCLUDED THAT THE REPORTS AND EDITORIAL WERE
DESIGNED FALSELY TO REPRESENT TO THE PUBLIC THE NATURE OF THE
PROCEEDINGS AND TO PREJUDICE AND INFLUENCE THE COURT IN ITS RULING ON
THE MOTION FOR A NEW TRIAL THEN PENDING.  PETITIONERS CONTENDED AT THE
HEARING THAT ALL THAT WAS REPORTED DID NO MORE THAN TO CREATE THE SAME
IMPRESSION THAT WOULD HAVE BEEN CREATED UPON THE MIND OF AN AVERAGE
INTELLIGENT LAYMAN WHO SAT THROUGH THE TRIAL.  THEY DISCLAIMED ANY
PURPOSE TO IMPUTE UNWORTHY MOTIVES TO THE JUDGE OR TO ADVISE HIM HOW
THE CASE SHOULD BE DECIDED OR TO BRING THE COURT INTO DISREPUTE.  THE
PURPOSE WAS TO "QUICKEN THE CONSCIENCE OF THE JUDGE" AND TO "MAKE HIM
MORE CAREFUL IN DISCHARGING HIS DUTY." 

THE COURT OF CRIMINAL APPEALS, IN DENYING THE WRIT OF HABEAS CORPUS,
STATED THAT THE "ISSUE BEFORE US" IS "WHETHER THE PUBLICATIONS  ...
WERE REASONABLY CALCULATED TO INTERFERE WITH THE DUE ADMINISTRATION OF
JUSTICE" IN THE PENDING CASE.  193 S.W.2D P. 186.  IT HELD THAT "THERE
IS NO ESCAPE FROM THE CONCLUSION THAT IT WAS THE PURPOSE AND INTENT OF
THE PUBLISHERS  ...  TO FORCE, COMPEL, AND COERCE JUDGE BROWNING TO
GRANT MAYES A NEW TRIAL.  THE ONLY REASON OR MOTIVE FOR SO DOING WAS
BECAUSE THE PUBLISHERS DID NOT AGREE WITH JUDGE BROWNING'S DECISION OR
CONDUCT OF THE CASE.  ACCORDING TO THEIR VIEWPOINT, JUDGE BROWNING WAS
WRONG AND THEY TOOK IT UPON THEMSELVES TO MAKE HIM CHANGE HIS
DECISION."  ID., PP. 188-189.  THE COURT WENT ON TO SAY THAT "IT IS
HARD TO CONCEIVE HOW THE PUBLIC PRESS COULD HAVE BEEN MORE FORCIBLY OR
SUBSTANTIALLY USED OR APPLIED TO MAKE, FORCE, AND COMPEL A JUDGE TO
CHANGE A RULING OR DECISION IN A CASE PENDING BEFORE HIM THAN WAS HERE
DONE."  ID., P. 189.  THE COURT DISTINGUISHED THE BRIDGES CASE, NOTING
THAT THERE THE PUBLISHED STATEMENTS CARRIED THREATS OF FUTURE ADVERSE
CRITICISM AND ACTION ON THE PART OF THE PUBLISHER IF THE PENDING MATTER
WAS NOT DISPOSED OF IN ACCORDANCE WITH THE VIEWS OF THE PUBLISHER, THAT
THE VIEWS OF THE PUBLISHER IN THE MATTER WERE ALREADY WELL-KNOWN, AND
THAT THE BRIDGES CASE WAS NOT PRIVATE LITIGATION BUT A SUIT IN THE
OUTCOME OF WHICH THE PUBLIC HAD AN INTEREST.  ID., P. 188.  IT
CONCLUDED THAT THE FACTS OF THIS CASE SATISFIED THE "CLEAR AND PRESENT
DANGER" RULE OF THE BRIDGES CASE.  THAT TEST WAS, IN THE VIEW OF THE
COURT, SATISFIED "BECAUSE THE PUBLICATIONS AND THEIR PURPOSE WERE TO
IMPRESS UPON JUDGE BROWNING (A) THAT UNLESS HE GRANTED THE MOTION FOR A
NEW TRIAL HE WOULD BE SUBJECTED TO SUSPICION AS TO HIS INTEGRITY AND
FAIRNESS AND TO ODIUM AND HATRED IN THE PUBLIC MIND; (B) THAT THE SAFE
AND SECURE COURSE TO AVOID THE CRITICISM OF THE PRESS AND PUBLIC
OPINION WOULD BE TO GRANT THE MOTION AND DISQUALIFY HIMSELF FROM AGAIN
PRESIDING AT THE TRIAL OF THE CASE; AND (C) THAT IF HE OVERRULED THE
MOTION FOR A NEW TRIAL, THERE WOULD BE PRODUCED IN THE PUBLIC MIND SUCH
A DISREGARD FOR THE COURT OVER WHICH HE PRESIDED AS TO GIVE RISE TO A
PURPOSE IN PRACTICE TO REFUSE TO RESPECT AND OBEY ANY ORDER, JUDGMENT,
OR DECREE WHICH HE MIGHT RENDER IN CONFLICT WITH THE VIEWS OF THE
PUBLIC PRESS."  ID., P. 189. 

THE COURT'S STATEMENT OF THE ISSUE BEFORE IT AND THE REASONS IT GAVE
FOR HOLDING THAT THE "CLEAR AND PRESENT DANGER" TEST WAS SATISFIED HAVE
A STRIKING RESEMBLANCE TO THE FINDINGS WHICH THE COURT IN TOLEDO
NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402, HELD ADEQUATE TO SUSTAIN
AN ADJUDICATION OF CONTEMPT BY PUBLICATION.  FN2  THAT CASE HELD THAT
COMMENT ON A PENDING CASE IN A FEDERAL COURT WAS PUNISHABLE BY CONTEMPT
IF IT HAD A "REASONABLE TENDENCY" TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE.  WE REVISITED THAT CASE IN NYE V. UNITED STATES, 313 U.S. 33,
52, AND DISAPPROVED IT. AND IN BRIDGES V. CALIFORNIA, SUPRA, WE HELD
THAT THE COMPULSION OF THE FIRST AMENDMENT, MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH (SCHNEIDER V. IRVINGTON, 308 U.S. 147; MURDOCK
V. PENNSYLVANIA, 319 U.S. 105, 108) FORBADE THE PUNISHMENT BY CONTEMPT
FOR COMMENT ON PENDING CASES IN ABSENCE OF A SHOWING THAT THE
UTTERANCES CREATED A "CLEAR AND PRESENT DANGER" TO THE ADMINISTRATION
OF JUSTICE.  314 U.S. PP. 260-264.  WE REAFFIRMED AND REAPPLIED THAT
STANDARD IN PENNEKAMP V. FLORIDA, SUPRA, WHICH ALSO INVOLVED COMMENT ON
MATTERS PENDING BEFORE THE COURT.  WE STATED, P. 347: 

"COURTS MUST HAVE POWER TO PROTECT THE INTERESTS OF PRISONERS AND
LITIGANTS BEFORE THEM FROM UNSEEMLY EFFORTS TO PERVERT JUDICIAL
ACTION.  IN THE BORDERLINE INSTANCES WHERE IT IS DIFFICULT TO SAY UPON
WHICH SIDE THE ALLEGED OFFENSE FALLS, WE THINK THE SPECIFIC FREEDOM OF
PUBLIC COMMENT SHOULD WEIGH HEAVILY AGAINST A POSSIBLE TENDENCY TO
INFLUENCE PENDING CASES.  FREEDOM OF DISCUSSION SHOULD BE GIVEN THE
WIDEST RANGE COMPATIBLE WITH THE ESSENTIAL REQUIREMENT OF THE FAIR AND
ORDERLY ADMINISTRATION OF JUSTICE." 

NEITHER THOSE CASES NOR THE PRESENT ONE RAISES QUESTIONS CONCERNING
THE FULL REACH OF THE POWER OF THE STATE TO PROTECT THE ADMINISTRATION
OF JUSTICE BY ITS COURTS.  THE PROBLEM PRESENTED IS ONLY A NARROW,
ALBEIT IMPORTANT, PHASE OF THAT PROBLEM - THE POWER OF A COURT PROMPTLY
AND WITHOUT A JURY TRIAL TO PUNISH FOR COMMENT ON CASES PENDING BEFORE
IT AND AWAITING DISPOSITION.  THE HISTORY OF THE POWER TO PUNISH FOR
CONTEMPT (SEE NYE V. UNITED STATES, SUPRA; BRIDGES V. CALIFORNIA,
SUPRA) AND THE UNEQUIVOCAL COMMAND OF THE FIRST AMENDMENT SERVE AS
CONSTANT REMINDERS THAT FREEDOM OF SPEECH AND OF THE PRESS SHOULD NOT
BE IMPAIRED THROUGH THE EXERCISE OF THAT POWER, UNLESS THERE IS NO
DOUBT THAT THE UTTERANCES IN QUESTION ARE A SERIOUS AND IMMINENT THREAT
TO THE ADMINISTRATION OF JUSTICE. 

IN A CASE WHERE IT IS ASSERTED THAT A PERSON HAS BEEN DEPRIVED BY A
STATE COURT OF A FUNDAMENTAL RIGHT SECURED BY THE CONSTITUTION, AN
INDEPENDENT EXAMINATION OF THE FACTS BY THIS COURT IS OFTEN REQUIRED TO
BE MADE.  SEE NORRIS V. ALABAMA, 294 U.S. 587, 590; PIERRE V.
LOUISIANA, 306 U.S. 354, 358; CHAMBERS V. FLORIDA, 309 U.S. 227, 228
229; LISENBA V. CALIFORNIA, 314 U.S. 219, 237-238; ASHCRAFT V.
TENNESSEE, 322 U.S. 143, 147-148.  THIS IS SUCH A CASE. 

WE START WITH THE NEWS ARTICLES.  A TRIAL IS A PUBLIC EVENT.  WHAT
TRANSPIRES IN THE COURT ROOM IS PUBLIC PROPERTY.  IF A TRANSCRIPT OF
THE COURT PROCEEDINGS HAD BEEN PUBLISHED, WE SUPPOSE NONE WOULD CLAIM
THAT THE JUDGE COULD PUNISH THE PUBLISHER FOR CONTEMPT.  AND WE CAN SEE
NO DIFFERENCE THOUGH THE CONDUCT OF THE ATTORNEYS, OF THE JURY, OR EVEN
OF THE JUDGE HIMSELF, MAY HAVE REFLECTED ON THE COURT.  THOSE WHO SEE
AND HEAR WHAT TRANSPIRED CAN REPORT IT WITH IMPUNITY.  THERE IS NO
SPECIAL PERQUISITE OF THE JUDICIARY WHICH ENABLES IT, AS DISTINGUISHED
FROM OTHER INSTITUTIONS OF DEMOCRATIC GOVERNMENT, TO SUPPRESS, EDIT, OR
CENSOR EVENTS WHICH TRANSPIRE IN PROCEEDINGS BEFORE IT. 

THE ARTICLES OF MAY 26, 27, AND 28 WERE PARTIAL REPORTS OF WHAT
TRANSPIRED AT THE TRIAL.  THEY DID NOT REFLECT GOOD REPORTING, FOR THEY
FAILED TO REVEAL THE PRECISE ISSUE BEFORE THE JUDGE.  THEY SAID THAT
MAYES, THE TENANT, HAD TENDERED A RENTAL CHECK.  THEY DID NOT DISCLOSE
THAT THE RENTAL CHECK WAS POST-DATED AND HENCE, IN THE OPINION OF THE
JUDGE, NOT A VALID TENDER.  IN THAT SENSE THE NEWS ARTICLES WERE BY ANY
STANDARD AN UNFAIR REPORT OF WHAT TRANSPIRED.  FN3  BUT INACCURACIES IN
REPORTING ARE COMMONPLACE.  CERTAINLY A REPORTER COULD NOT BE LAID BY
THE HEELS FOR CONTEMPT BECAUSE HE MISSED THE ESSENTIAL POINT IN A TRIAL
OR FAILED TO SUMMARIZE THE ISSUES TO ACCORD WITH THE VIEWS OF THE JUDGE
WHO SAT ON THE CASE.  CONCEIVABLY, A PLAN OF REPORTING ON A CASE COULD
BE SO DESIGNED AND EXECUTED AS TO POISON THE PUBLIC MIND, TO CAUSE A
MARCH ON THE COURT HOUSE, OR OTHERWISE SO DISTURB THE DELICATE BALANCE
IN A HIGHLY WROUGHT SITUATION AS TO IMPERIL THE FAIR AND ORDERLY
FUNCTIONING OF THE JUDICIAL PROCESS.  BUT IT TAKES MORE IMAGINATION
THAN WE POSSESS TO FIND IN THIS RATHER SKETCHY AND ONE-SIDED REPORT OF
A CASE ANY IMMINENT OR SERIOUS THREAT TO A JUDGE OF REASONABLE
FORTITUDE.  SEE PENNEKAMP V. FLORIDA, SUPRA. 

THE ACCOUNTS OF MAY 30 AND 31 DEALT WITH THE NEWS OF WHAT CERTAIN
GROUPS OF CITIZENS PROPOSED TO DO ABOUT THE JUDGE'S RULING IN THE
CASE.  SO FAR AS WE ARE ADVISED, IT WAS A FACT THAT THEY PLANNED TO
TAKE THE PROPOSED ACTION.  THE EPISODES WERE COMMUNITY EVENTS OF
LEGITIMATE INTEREST.  WHATEVER MIGHT BE THE RESPONSIBILITY OF THE GROUP
WHICH TOOK THE ACTION, THOSE WHO REPORTED IT STAND IN A DIFFERENT
POSITION.  EVEN IF THE FORMER WERE GUILTY OF CONTEMPT, FREEDOM OF THE
PRESS MAY NOT BE DENIED A NEWSPAPER WHICH BRINGS THEIR CONDUCT TO THE
PUBLIC EYE. 

THE ONLY SUBSTANTIAL QUESTION RAISED PERTAINS TO THE EDITORIAL.  IT
CALLED THE JUDGE'S REFUSAL TO HEAR BOTH SIDES "HIGH HANDED," A
"TRAVESTY ON JUSTICE," AND THE REASON THAT PUBLIC OPINION WAS
"OUTRAGED."  IT SAID THAT HIS RULING PROPERLY "BROUGHT DOWN THE WRATH
OF PUBLIC OPINION UPON HIS HEAD" SINCE A SERVICE MAN "SEEMS TO BE
GETTING A RAW DEAL."  THE FACT THAT THERE WAS NO APPEAL FROM HIS
DECISION TO A "JUDGE WHO IS FAMILIAR WITH PROPER PROCEDURE AND ABLE TO
INTERPRET AND WEIGH MOTIONS AND ARGUMENTS BY OPPOSING COUNSEL AND TO
MAKE HIS DECISIONS ACCORDINGLY" WAS A "TRAGEDY."  IT DEPLORED THE FACT
THAT THE JUDGE WAS A "LAYMAN" AND NOT A "COMPETENT ATTORNEY."  IT
CONCLUDED THAT THE "FIRST RULE OF JUSTICE" WAS TO GIVE BOTH SIDES AN
OPPORTUNITY TO BE HEARD AND WHEN THAT RULE WAS "REPUDIATED," THERE WAS
"NO WAY OF KNOWING WHETHER JUSTICE WAS DONE."    THIS WAS STRONG
LANGUAGE, INTEMPERATE LANGUAGE, AND, WE ASSUME, AN UNFAIR CRITICISM. 
BUT A JUDGE MAY NOT HOLD IN CONTEMPT ONE "WHO VENTURES TO PUBLISH
ANYTHING THAT TENDS TO MAKE HIM UNPOPULAR OR TO BELITTLE HIM  ...  "
SEE CRAIG V. HECHT, 263 U.S. 255, 281, MR. JUSTICE HOLMES DISSENTING. 
THE VEHEMENCE OF THE LANGUAGE USED IS NOT ALONE THE MEASURE OF THE
POWER TO PUNISH FOR CONTEMPT.  THE FIRES WHICH IT KINDLES MUST
CONSTITUTE AN IMMINENT, NOT MERELY A LIKELY, THREAT TO THE
ADMINISTRATION OF JUSTICE.  THE DANGER MUST NOT BE REMOTE OR EVEN
PROBABLE; IT MUST IMMEDIATELY IMPERIL.    WE AGREE WITH THE COURT BELOW
THAT THE EDITORIAL MUST BE APPRAISED IN THE SETTING OF THE NEWS
ARTICLES WHICH BOTH PRECEDED AND FOLLOWED IT.  IT MUST ALSO BE
APPRAISED IN LIGHT OF THE COMMUNITY ENVIRONMENT WHICH PREVAILED AT THAT
TIME.  THE FACT THAT THE JURY WAS RECALCITRANT AND BALKED, THE FACT
THAT IT ACTED UNDER COERCION AND CONTRARY TO ITS CONSCIENCE AND SAID SO
WERE SOME INDEX OF POPULAR OPINION.  A JUDGE WHO IS PART OF SUCH A
DRAMATIC EPISODE CAN HARDLY HELP BUT KNOW THAT HIS DECISION IS APT TO
BE UNPOPULAR.  BUT THE LAW OF CONTEMPT IS NOT MADE FOR THE PROTECTION
OF JUDGES WHO MAY BE SENSITIVE TO THE WINDS OF PUBLIC OPINION.  JUDGES
ARE SUPPOSED TO BE MEN OF FORTITUDE, ABLE TO THRIVE IN A HARDY
CLIMATE.  CONCEIVABLY A CAMPAIGN COULD BE SO MANAGED AND SO AIMED AT
THE SENSIBILITIES OF A PARTICULAR JUDGE AND THE MATTER PENDING BEFORE
HIM AS TO CROSS THE FORBIDDEN LINE.  BUT THE EPISODES WE HAVE HERE DO
NOT FALL IN THAT CATEGORY.  NOR CAN WE ASSUME THAT THE TRIAL JUDGE WAS
NOT A MAN OF FORTITUDE. 

THE EDITORIAL'S COMPLAINT WAS TWO-FOLD.  ONE OBJECTION OR CRITICISM
WAS THAT A LAYMAN RATHER THAN A LAWYER SAT ON THE BENCH.  THAT IS
LEGITIMATE COMMENT; AND ITS RELEVANCY COULD HARDLY BE DENIED AT LEAST
WHERE JUDGES ARE ELECTED.  IN THE CIRCUMSTANCES OF THE PRESENT CASE, IT
AMOUNTS AT THE VERY MOST TO AN INTIMATION THAT COME THE NEXT ELECTION
THE NEWSPAPER IN QUESTION WILL NOT SUPPORT THE INCUMBENT.  BUT IT
CONTAINED NO THREAT TO OPPOSE HIM IN THE CAMPAIGN IF THE DECISION ON
THE MERITS WAS NOT OVERRULED, NOR ANY IMPLIED REWARD IF IT WAS
CHANGED.  JUDGES WHO STAND FOR REELECTION RUN ON THEIR RECORDS.  THAT
MAY BE A RUGGED ENVIRONMENT.  CRITICISM IS EXPECTED.  DISCUSSION OF
THEIR CONDUCT IS APPROPRIATE, IF NOT NECESSARY.  THE FACT THAT THE
DISCUSSION AT THIS PARTICULAR POINT OF TIME WAS NOT IN GOOD TASTE FALLS
FAR SHORT OF MEETING THE CLEAR AND PRESENT DANGER TEST. 

THE OTHER COMPLAINT OF THE EDITORIAL WAS DIRECTED AT THE COURT'S
PROCEDURE - ITS FAILURE TO HEAR BOTH SIDES BEFORE THE CASE WAS
DECIDED.  THERE WAS NO ATTEMPT TO PASS ON THE MERITS OF THE CASE.  THE
EDITORIAL, INDEED, STATED THAT THERE WAS NO WAY OF KNOWING WHETHER
JUSTICE WAS DONE.  THAT CRITICISM OF THE COURT'S PROCEDURE - THAT IT
DECIDED THE CASE WITHOUT GIVING BOTH SIDES A CHANCE TO BE HEARD -
REDUCES THE SALIENT POINT OF THE CASE TO A NARROW ISSUE.  IF THE POINT
HAD BEEN MADE IN A PETITION FOR REHEARING, AND REDUCED TO LAWYER'S
LANGUAGE, IT WOULD BE OF TRIFLING CONSEQUENCE.  THE FACT THAT IT WAS
PUT IN LAYMAN'S LANGUAGE, COLORFULLY PHRASED FOR POPULAR CONSUMPTION,
AND PRINTED IN A NEWSPAPER DOES NOT SEEM TO US TO ELEVATE IT TO THE
CRIMINAL LEVEL.  IT MIGHT WELL HAVE A TENDENCY TO LOWER THE STANDING OF
THE JUDGE IN THE PUBLIC EYE.  BUT IT IS HARD TO SEE ON THESE FACTS HOW
IT COULD OBSTRUCT THE COURSE OF JUSTICE IN THE CASE BEFORE THE COURT. 
THE ONLY DEMAND WAS FOR A HEARING.  THERE WAS NO DEMAND THAT THE JUDGE
REVERSE HIS POSITION - OR ELSE. 

"LEGAL TRIALS ARE NOT LIKE ELECTIONS, TO BE WON THROUGH THE USE OF
THE MEETING-HALL, THE RADIO, AND THE NEWSPAPER."  BRIDGES V.
CALIFORNIA, SUPRA, P. 271.  BUT THERE WAS HERE NO THREAT OR MENACE TO
THE INTEGRITY OF THE TRIAL.  THE EDITORIAL CHALLENGED THE PROPRIETY OF
THE COURT'S PROCEDURE, NOT THE MERITS OF ITS RULING.  ANY SUCH
CHALLENGE, WHETHER MADE PRIOR OR SUBSEQUENT TO THE FINAL DISPOSITION OF
A CASE, WOULD LIKELY REFLECT ON THE COMPETENCE OF THE JUDGE IN HANDLING
CASES.  BUT AS WE HAVE SAID, THE POWER TO PUNISH FOR CONTEMPT DEPENDS
ON A MORE SUBSTANTIAL SHOWING.  GIVING THE EDITORIAL ALL OF THE
VEHEMENCE WHICH THE COURT BELOW FOUND IN IT WE FAIL TO SEE HOW IT COULD
IN ANY REALISTIC SENSE CREATE AN IMMINENT AND SERIOUS THREAT TO THE
ABILITY OF THE COURT TO GIVE FAIR CONSIDERATION TO THE MOTION FOR
REHEARING. 

THERE IS A SUGGESTION THAT THE CASE IS DIFFERENT FROM BRIDGES V.
CALIFORNIA, SUPRA, IN THAT WE HAVE HERE ONLY PRIVATE LITIGATION, WHILE
IN THE BRIDGES CASE LABOR CONTROVERSIES WERE INVOLVED, SOME OF THEM
BEING CRIMINAL CASES.  THE THOUGHT APPARENTLY IS THAT THE RANGE OF
PERMISSIBLE COMMENT IS GREATER WHERE THE PENDING CASE GENERATES A
PUBLIC CONCERN.  THE NATURE OF THE CASE MAY, OF COURSE, BE RELEVANT IN
DETERMINING WHETHER THE CLEAR AND PRESENT DANGER TEST IS SATISFIED. 
BUT, THE RULE OF THE BRIDGES AND PENNEKAMP CASES IS FASHIONED TO SERVE
THE NEEDS OF ALL LITIGATION, NOT MERELY SELECT TYPES OF PENDING CASES. 
REVERSED. 

FN1  THAT APPEARS TO BE THE APPROPRIATE REMEDY IN TEXAS IN THIS TYPE
OF CASE.  EX PARTE MILLER, 91 TEXAS CR. REP. 607, 240 S.W. 944.  AS TO
THE TEXAS PROCEDURE WHERE THERE IS AN ADJUDICATION OF CONTEMPT FOR
VIOLATING AN ORDER IN A CIVIL CAUSE, SEE THOMAS V. COLLINS, 323 U.S.
516. 

FN2  THE FINDINGS WHICH THE COURT IN THAT CASE SUSTAINED WERE AS
FOLLOWS: 

"(A)  BECAUSE  ...  THEIR MANIFEST PURPOSE WAS TO CREATE THE
IMPRESSION ON THE MIND OF THE COURT THAT IT COULD NOT DECIDE IN THE
MATTER BEFORE IT IN ANY BUT THE ONE WAY WITHOUT GIVING RISE TO SUCH A
STATE OF SUSPICION AS TO THE INTEGRITY OR FAIRNESS OF ITS PURPOSE AND
MOTIVES AS MIGHT ENGENDER A SHRINKING FROM SO DOING.  (B)  BECAUSE THE
PUBLICATIONS DIRECTLY TENDED TO INCITE TO SUCH A CONDITION OF THE
PUBLIC MIND AS WOULD LEAVE NO ROOM FOR DOUBT THAT IF THE COURT, ACTING
ACCORDING TO ITS CONVICTIONS, AWARDED RELIEF, IT WOULD BE SUBJECT TO
SUCH ODIUM AND HATRED AS TO RESTRAIN IT FROM DOING SO.  (C)  BECAUSE
THE PUBLICATIONS ALSO OBVIOUSLY WERE INTENDED TO PRODUCE THE IMPRESSION
THAT ANY ORDER WHICH MIGHT BE RENDERED BY THE COURT IN THE DISCHARGE OF
ITS DUTY, IF NOT IN ACCORD WITH THE CONCEPTIONS WHICH THE PUBLICATIONS
WERE SUSTAINING, WOULD BE DISREGARDED AND CAUSE A SHRINKING FROM
PERFORMING DUTY TO AVOID THE TURMOIL AND VIOLENCE WHICH THE
PUBLICATIONS, IT MAY BE ONLY BY COVERT INSINUATION, BUT NONE TO LESS
ASSUREDLY, INVITED.  AND (D) BECAUSE THE PUBLICATIONS WERE OF A
CHARACTER, NOT MERELY BECAUSE OF THEIR INTEMPERANCE BUT BECAUSE OF
THEIR GENERAL TENDENCY, TO PRODUCE IN THE POPULAR MIND A CONDITION
WHICH WOULD GIVE RISE TO A PURPOSE IN PRACTICE TO REFUSE TO RESPECT ANY
ORDER WHICH THE COURT MIGHT RENDER IF IT CONFLICTED WITH THE SUPPOSED
RIGHTS OF THE CITY ESPOUSED BY THE PUBLICATIONS." 

247 U.S. PP. 414-415. 

FN3  THE CHARGE AGAINST PETITIONERS ALSO SET FORTH OTHER ALLEGEDLY
FALSE STATEMENTS:  (1) THAT MAYES WAS NOT AN EX-INSURANCE MAN BUT IN
THE INSURANCE BUSINESS AT THE TIME; (2) THAT TERMS OF THE CONTRACT ON
WHICH JACKSON SUED WERE NOT DISCLOSED; (3) THAT THE ARRANGEMENTS UNDER
WHICH THE PREMISES HAD BEEN OPERATED FOR SOME MONTHS BEFORE MAYES WAS
INDUCTED INTO THE ARMED SERVICES WERE NOT DISCLOSED; (4) THAT THE
ARTICLES FAILED TO STATE THE LEGAL GROUNDS ON WHICH JACKSON'S MOTION
FOR AN INSTRUCTED VERDICT WAS ARGUED AND GRANTED; (5) THAT MUCH
MATERIAL EVIDENCE WAS OMITTED WHICH WOULD HAVE ENABLED THE PUBLIC TO
FORM A FAIR ESTIMATE OF THE NATURE OF THE CONTROVERSY; (6) THAT THE
PRINCIPAL PLAINTIFFS WHO WERE HIGHLY RESPECTED BUSINESS AND
PROFESSIONAL MEN OF CORPUS CHRISTI WERE NOT NAMED. 

THESE OMISSIONS, THOUGH REFLECTING ON THE QUALITY OF THE REPORTING,
DO NOT SEEM TO US TO BE OF IMPORTANCE HERE. 

                        APPENDIX. 

ON MAY 26, 1945, A NEWS ITEM STATED: 

"BURCHARD FURTHER CLAIMED THAT ALTHOUGH HE HAD NOT KNOWN OF THE
OPTION CLAUSE, WHEN HE LEARNED OF IT HE HAD IMMEDIATELY PROFFERED A
CHECK FOR $275 RENTAL." 

ON MAY 27, 1945, THERE WAS A NEWS ITEM WHICH STATED: 

"AT 7 P.M. BROWNING, WITHOUT LISTENING TO ARGUMENT FROM COUNSEL FOR
EITHER SIDE ON A PLAINTIFF'S MOTION PRESENTED BY DUDLEY TARLTON FOR
JACKSON, AND WITHOUT GIVING THE SIX-MAN JURY OPPORTUNITY TO WEIGH THE
EVIDENCE, INSTRUCTED THE JURY TO FIND AGAINST MAYES. 

"WALTER M. LEWRIGHT, MAYES' ATTORNEY, PROTESTED THAT THE COURT'S
ARBITRARY ACTION HAD RULED THAT TARLTON'S 'ONE-PAGE MOTION' DID NOT
NEED SUPPORTING ARGUMENT AND CITATION OF AUTHORITIES." 

ON MAY 28, 1945, AN ARTICLE SAID: 

"BROWNING ACCEPTED TARLTON'S ONE-PAGE MOTION, AND WITHOUT PERMITTING
ARGUMENT OR CITATION OF AUTHORITIES TO SUPPORT THE MOTION, RULED THAT
IT BE GRANTED.  THE EFFECT OF THIS RULING WAS THAT BROWNING TOOK THE
MATTER FROM THE JURY." 

THAT ARTICLE ALSO INCLUDED THE FOLLOWING STATEMENT MADE BY MAYES'
ATTORNEY TO THE JURY ON MAY 27, 1945: 

"HOWEVER, I NOW ADVISE YOU THAT UNDER THE LAW, JUDGE BROWNING HAS THE
RIGHT TO COMPEL YOU, EVEN AGAINST THE DICTATES OF YOUR CONSCIENCE, TO
SIGN THE VERDICT HE HAS ORDERED. 

"AS A MATTER OF FACT, IT IS PROBABLE THAT HE HAS THE POWER TO PUT YOU
IN JAIL UNTIL SUCH TIME AS YOU DO SIGN IT, AND I RATHER IMAGINE, FROM
WHAT HAS HERETOFORE TAKEN PLACE IN THIS TRIAL, THAT UNLESS YOU DO SIGN
THE VERDICT, HE WILL CAUSE YOU TO BE PUT IN JAIL. 

"AS I AND MY CLIENTS FEEL THAT YOU HAVE DONE ALL IN YOUR POWER TO
REGISTER YOUR PROTEST AND REVULSION OF FEELING AT THE EFFECT OF THIS
DECISION REACHED BY JUDGE BROWNING; AS YOU ARE HELPLESS TO DO ANYTHING
FURTHER; AND AS MAKING YOU SUFFER BY REMAINING LOCKED UP WILL NOT DO US
A BIT OF GOOD, I SUGGEST THAT YOU SIGN THE VERDICT AND RETURN TO YOUR
HOMES WITH A CLEAR CONSCIENCE OF HAVING DONE ALL THAT YOU COULD TO
PROTECT THE RIGHTS OF A MAN WHOM I FEEL, AND EVIDENTLY YOU FEEL, HAS
BEEN DONE A GROSS INJUSTICE. 

"WHILE WE HAVE NO APPEAL FROM THE COURT'S DECISION IN THIS CASE, WE
DO HAVE THE RIGHT AGAIN TO APPEAL TO HIS CONSCIENCE BY PRESENTING A
MOTION FOR NEW TRIAL IN THIS ACTION - AND WHICH MOTION WE WILL FILE AND
ARGUE STRENUOUSLY WITH THE HOPE THAT IN THE MEANTIME HE WILL SEE THE
ERROR COMMITTED AND WILL RECTIFY THE SAME. 

"THERE CANNOT BE ANY DOUBT BUT THAT THE ACTION OF YOU MEN IN
REGISTERING YOUR PROTEST AGAINST THIS DECISION, AS YOU HAVE DONE, WILL
AFFECT HIM.  AT LEAST, I CAN ONLY HOPE THAT IT WILL.  I SINCERELY THANK
YOU." 

ON MAY 30, 1945, AN EDITORIAL STATED: 

"BROWNING'S BEHAVIOR AND ATTITUDE HAS BROUGHT DOWN THE WRATH OF
PUBLIC OPINION UPON HIS HEAD, PROPERLY SO.  EMOTIONS HAVE BEEN
AGGRAVATED.  AMERICAN PEOPLE SIMPLY DON'T LIKE THE IDEA OF SUCH GOINGS
ON, ESPECIALLY WHEN A MAN IN THE SERVICE OF HIS COUNTRY SEEMS TO BE
GETTING A RAW DEAL ...  THEN THE PLAINTIFF'S COUNSEL OFFERED A MOTION
FOR AN INSTRUCTED VERDICT FOR HIS CLIENT.  IT WAS GRANTED IMMEDIATELY,
WITHOUT HAVING HIM CITE HIS AUTHORITY OR WITHOUT GIVING THE DEFENDANT'S
ATTORNEY A CHANCE TO ARGUE AGAINST IT. 

"THAT WAS THE TRAVESTY ON JUSTICE, THE JUDGE'S REFUSAL TO HEAR BOTH
SIDES.  THAT'S WHERE A LEGAL BACKGROUND WOULD HAVE SERVED HIM IN GOOD
STEAD.  IT IS DIFFICULT TO BELIEVE THAT ANY LAWYER, EVEN A HACK, WOULD
HAVE FOLLOWED SUCH HIGH HANDED PROCEDURE IN INSTRUCTING A JURY.  IT'S
NO WONDER THAT THE JURY BALKED AND PUBLIC OPINION IS OUTRAGED. 

"THE FACT THAT A SERVICEMAN IS INVOLVED LENDS DRAMA TO THE EVENT. 
BUT IT COULD HAVE HAPPENED TO ANYONE, IT CAN HAPPEN TO ANYONE, WITH A
LAYMAN SITTING AS JUDGE IN A CASE WHERE FINE POINTS OF LAW ARE
INVOLVED.  TRUE, THE IDEA THAT ONLY LAWYERS ARE QUALIFIED TO OCCUPY
MOST PUBLIC OFFICES HAS BEEN RUN INTO THE GROUND, AND IN MOST INSTANCES
A COMPETENT LAYMAN WOULD BE BETTER QUALIFIED, BUT THE COUNTY JUDGE'S
OFFICE IS AN EXCEPTION.  HE SHOULD BE A COMPETENT ATTORNEY AS WELL AS A
COMPETENT BUSINESSMAN. 

"IT'S THE TRAGEDY IN A CASE OF THIS SORT THAT THE COURT WHERE THE
CONTROVERSIAL DECISION WAS HANDED DOWN IS THE COURT OF LAST RESORT. 
IT'S TOO BAD THAT APPEAL CAN'T BE MADE TO A DISTRICT COURT AND HEARD BY
A JUDGE WHO IS FAMILIAR WITH PROPER PROCEDURE AND ABLE TO INTERPRET AND
WEIGH MOTIONS AND ARGUMENTS BY OPPOSING COUNSEL AND TO MAKE HIS
DECISIONS ACCORDINGLY  ...  THERE IS NO WAY OF KNOWING WHETHER JUSTICE
WAS DONE, BECAUSE THE FIRST RULE OF JUSTICE, GIVING BOTH SIDES AN
OPPORTUNITY TO BE HEARD, WAS REPUDIATED." 

ON MAY 30, 1945, THERE APPEARED A REPORT OF A RESOLUTION PASSED BY
THE SAILOR'S AND SOLDIER'S ADVISORY COUNCIL OF CORPUS CHRISTI "LABELING
COUNTY JUDGE JOE D. BROWNING'S ORDER FOR A DIRECTED VERDICT AGAINST
MAYES A 'GROSS MISCARRIAGE OF JUSTICE.'"  THAT ARTICLE FURTHER STATED: 

"THE COUNCIL'S RESOLUTION CALLED ON BROWNING TO GRANT MAYES A NEW
TRIAL ON THE GROUNDS THAT HE HAD COMMITTED AN ERROR IN INSTRUCTING THE
JURY TO FIND FOR THE PLAINTIFF.  THE PETITION ASKED THAT BROWNING, UPON
GRANTING THE NEW TRIAL, SHOULD DISQUALIFY HIMSELF TO FURTHER SIT AS
JUDGE IN THE TRIAL, AND SHOULD PERMIT THE TRIAL TO BE RETRIED BEFORE
ANOTHER JUDGE AND JURY  ...  THE TRIAL REACHED A CLIMAX SATURDAY NIGHT
WHEN BROWNING, ON MOTION OF DUDLEY TARLTON, JACKSON'S COUNSEL, AND
WITHOUT ARGUMENT OR CITATION OF AUTHORITY, INSTRUCTED THE SIX-MAN
COUNTY COURT JURY TO FIND FOR JACKSON.  THE JURY TWICE REFUSED, BOTH
TIMES BRINGING IN VERDICTS IN FAVOR OF MAYES AND AGAINST JACKSON. 

"BROWNING HAD THE JURY CONFINED TO THE COURT HOUSE JURY ROOM ALL
SATURDAY NIGHT.  SUNDAY MORNING, WHEN THE COURT CONVENED, THE JURY
REPORTED THAT IT STILL HAD NOT SIGNED THE VERDICT IN FAVOR OF JACKSON. 

"BROWNING ANNOUNCED THAT HE WOULD LOCK THE JURY UP AGAIN UNTIL MONDAY
MORNING.  HOWEVER, WALTER M. LEWRIGHT ADVISED THE JURYMEN THAT THEY
SHOULD NOT CONTINUE TO 'SUFFER' ANY LONGER, AND SHOULD SIGN THE
VERDICT, SINCE BROWNING HAD THE LEGAL RIGHT TO FORCE THEM TO DO SO.
THE JURY SIGNED THE VERDICT, BUT APPENDED A STATEMENT ASSERTING THAT
THEY DID SO UNDER PRESSURE."    ON MAY 31, 1945, A NEWS STORY SAID: 

"THREE LOCAL GROUPS WERE REPORTED LAST NIGHT TO BE PREPARING
PETITIONS REQUESTING COUNTY JUDGE JOE D. BROWNING TO GRANT PVT.  JOE L.
MAYES A NEW TRIAL IN THE PLAYBOY CAFE OUSTER SUIT. 

"ONE PETITION IS REPORTED BEING DRAWN BY A PARENTS AND TEACHERS'
GROUP, ANOTHER BY A SERVICE MOTHERS' GROUP, AND THE THIRD IS BEING
DRAWN FOR INDEPENDENT CIRCULATION AMONG PARENTS OF MEN IN SERVICE. 
"THE NEW PETITIONS ARE SAID TO FOLLOW THE GENERAL OUTLINE OF A PETITION
ADOPTED BY THE CORPUS CHRISTI SOLDIER'S AND SAILOR'S ADVISORY COUNCIL
TUESDAY NIGHT.  THIS PETITION CALLED ON BROWNING TO GRANT A NEW TRIAL
AND UPON DOING SO TO DISQUALIFY HIMSELF AND PERMIT THE TRIAL TO GO ON
UNDER ANOTHER JUDGE AND JURY.  ACTION ON THE PETITIONS IS EXPECTED
SHORTLY. 

"THE COUNCIL'S PETITION, DRAWN UP BY FIVE VETERANS' ORGANIZATIONS
WITH A MEMBERSHIP OF MORE THAN 1,000, FOLLOWED BY A FEW HOURS THE
FILING OF A MOTION FOR A NEW TRIAL BY WALTER M. LEWRIGHT AND LEGRAND
WOODS, MAYES' COUNSELS  ...  IT CAME TO A CLIMAX SUNDAY WHEN BROWNING
SATURDAY NIGHT ACCEPTED WITHOUT ARGUMENT OR CITATION OF AUTHORITY A
MOTION BY DUDLEY TARLTON JACKSON'S LAWYER, FOR AN INSTRUCTED VERDICT
...  THE JURY WAS KEPT SATURDAY NIGHT IN THE COURT HOUSE.  SUNDAY
MORNING, FOLLOWING A THREAT BY BROWNING TO KEEP THE JURY TOGETHER UNTIL
THEY DID SIGN, THE JURYMEN SIGNED THE VERDICT, APPENDING A STATEMENT
THAT THEY DID SO AGAINST THE DICTATES OF THEIR CONSCIENCE." 

MR. JUSTICE MURPHY, CONCURRING. 

WHILE JOINING IN THE OPINION OF THE COURT, I BELIEVE THAT THE
IMPORTANCE OF THE PROBLEM RAISED BY THIS CASE CANNOT BE
OVEREMPHASIZED.  A FREE PRESS LIES AT THE HEART OF OUR DEMOCRACY AND
ITS PRESERVATION IS ESSENTIAL TO THE SURVIVAL OF LIBERTY.  ANY INROAD
MADE UPON THE CONSTITUTIONAL PROTECTION OF A FREE PRESS TENDS TO
UNDERMINE THE FREEDOM OF ALL MEN TO PRINT AND TO READ THE TRUTH. 

IN MY VIEW, THE CONSTITUTION FORBIDS A JUDGE FROM SUMMARILY PUNISHING
A NEWSPAPER EDITOR FOR PRINTING AN UNJUST ATTACK UPON HIM OR HIS METHOD
OF DISPENSING JUSTICE.  THE ONLY POSSIBLE EXCEPTION IS IN THE RARE
INSTANCE WHERE THE ATTACK MIGHT REASONABLY CAUSE A REAL IMPEDIMENT TO
THE ADMINISTRATION OF JUSTICE.  UNSCRUPULOUS AND VINDICTIVE CRITICISM
OF THE JUDICIARY IS REGRETTABLE.  BUT JUDGES MUST NOT RETALIATE BY A
SUMMARY SUPPRESSION OF SUCH CRITICISM FOR THEY ARE BOUND BY THE COMMAND
OF THE FIRST AMENDMENT.  ANY SUMMARY SUPPRESSION OF UNJUST CRITICISM
CARRIES WITH IT AN OMINOUS THREAT OF SUMMARY SUPPRESSION OF ALL
CRITICISM.  IT IS TO AVOID THAT THREAT THAT THE FIRST AMENDMENT, AS I
VIEW IT, OUTLAWS THE SUMMARY CONTEMPT METHOD OF SUPPRESSION. 

SILENCE AND A STEADY DEVOTION TO DUTY ARE THE BEST ANSWERS TO
IRRESPONSIBLE CRITICISM; AND THOSE JUDGES WHO FEEL THE NEED FOR GIVING
A MORE VISIBLE DEMONSTRATION OF THEIR FEELINGS MAY TAKE ADVANTAGE OF
VARIOUS LAWS PASSED FOR THAT PURPOSE WHICH DO NOT IMPINGE UPON A FREE
PRESS.  THE LIBERTIES GUARANTEED BY THE FIRST AMENDMENT, HOWEVER, ARE
TOO HIGHLY PRIZED TO BE SUBJECTED TO THE HAZARDS OF SUMMARY CONTEMPT
PROCEDURE. 

MR. JUSTICE FRANKFURTER, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

TODAY'S DECISION, IN EFFECT THOUGH NOT IN TERMS, HOLDS
UNCONSTITUTIONAL A POWER THE POSSESSION OF WHICH BY THE STATES THIS
COURT HAS HERETOFORE DEEMED AXIOMATIC. 

IT CANNOT BE REPEATED TOO OFTEN THAT THE FREEDOM OF THE PRESS SO
INDISPENSABLE TO OUR DEMOCRATIC SOCIETY PRESUPPOSES AN INDEPENDENT
JUDICIARY WHICH WILL, WHEN OCCASION DEMANDS, PROTECT THAT FREEDOM.  TO
HELP ACHIEVE SUCH AN INDEPENDENT JUDICIARY AND TO PROTECT ITS MEMBERS
IN THEIR INDEPENDENCE, THE STATES OF THE UNION, FROM THE VERY BEGINNING
AND THROUGHOUT OUR HISTORY, HAVE PROVIDED FOR PROMPT SUPPRESSION AND
PUNISHMENT OF INTERFERENCE WITH THE IMPARTIAL EXERCISE OF THE JUDICIAL
PROCESS IN AN ACTIVE LITIGATION.  INTERFERENCE WAS PUNISHED NOT BY THE
ORDINARY CRIMINAL PROCESS OF TRIAL BEFORE A JURY, BUT THROUGH A
DISTINCTIVE PROCEEDING, SUMMARY IN CHARACTER IN THE SENSE THAT A JUDGE
WITHOUT A JURY MIGHT IMPOSE PUNISHMENT.  SUCH PROTECTIVE MEASURES
AGAINST PUBLICATIONS SERIOUSLY CALCULATED TO AGITATE THE DISINTERESTED
OPERATION OF THE JUDICIAL PROCESS IN A LITIGATION AWAITING DISPOSITION
HAVE BEEN DEEMED PART OF THE CONSTITUTIONAL AUTHORITY OF THE STATES TO
ESTABLISH COURTS TO DO JUSTICE AS BETWEEN MAN AND MAN AND BETWEEN MAN
AND SOCIETY. 

THE OPINION OF THE COURT REVIEWS THE TEXAS COURT AS THOUGH WE WERE
MERELY REVIEWING THE JUDGMENT OF A COURT LOWER IN THE JUDICIARY
HIERARCHY.  FORMALLY, NO DOUBT, WE HAVE BEFORE US THE CORRECTNESS OF A
DECISION OF THE COURT OF CRIMINAL APPEALS OF TEXAS.  BUT THAT DECISION
IS CHALLENGED AS OFFENDING THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  WE ARE NOT, THEREFORE, MERELY REVIEWING A DECISION OF THE
TEXAS COURT; WE ARE PASSING UPON THE POWER OF THE STATE OF TEXAS.  "THE
QUESTION BEFORE US MUST BE CONSIDERED IN THE LIGHT OF THE TOTAL POWER
THE STATE POSSESSES  ...  "  SKIRIOTES V. FLORIDA, 313 U.S. 69, 79.  TO
PARAPHRASE WHAT WAS SAID IN RIPPEY V. TEXAS, 193 U.S. 504, 509, THE
QUESTION FOR US IS THIS:  IF TEXAS HAD EXPRESSLY PROVIDED IN ITS
CONSTITUTION THAT PUBLICATIONS IN THE CIRCUMSTANCES HERE FOUND BY THE
TEXAS COURT SHALL CONSTITUTE CONTEMPT OF COURT, WOULD THIS COURT HOLD
THAT SUCH FINDING BY THE TEXAS COURT AND SUCH A PROVISION IN THE TEXAS
CONSTITUTION COLLIDE WITH THE CONSTITUTION OF THE UNITED STATES? 

TEXAS, SPEAKING THROUGH ITS AUTHORITATIVE JUDICIAL VOICE, SAYS:
"WHEN THE SEVERAL PUBLICATIONS IN THE INSTANT CASE ARE CONSIDERED
TOGETHER AND IN THEIR CHRONOLOGICAL ORDER OF APPEARANCE, THERE IS NO
ESCAPE FROM THE CONCLUSION THAT IT WAS THE PURPOSE AND INTENT OF THE
PUBLISHERS THEREOF TO FORCE, COMPEL, AND COERCE JUDGE BROWNING TO GRANT
MAYES A NEW TRIAL.  THE ONLY REASON OR MOTIVE FOR SO DOING WAS BECAUSE
THE PUBLISHERS DID NOT AGREE WITH JUDGE BROWNING'S DECISION OR CONDUCT
OF THE CASE.  ACCORDING TO THEIR VIEWPOINT, JUDGE BROWNING WAS WRONG
AND THEY TOOK IT UPON THEMSELVES TO MAKE HIM CHANGE HIS DECISION."  149
TEX. CR. - , 193 S.W.2D 178, 188-89. 

AFTER A PAINSTAKING EXAMINATION OF THE SERIES OF PUBLICATIONS IN THE
SETTING OF THE CIRCUMSTANCES OF THE CASE, AND AN EXTENDED HEARING, ALL
OF WHICH COMPRISES A RECORD HERE OF MORE THAN FOUR HUNDRED PAGES, THE
COURT BELOW REACHED THIS CONCLUSION:  "IT IS HARD TO CONCEIVE HOW THE
PUBLIC PRESS COULD HAVE BEEN MORE FORCIBLY OR SUBSTANTIALLY USED OR
APPLIED TO MAKE, FORCE, AND COMPEL A JUDGE TO CHANGE A RULING OR
DECISION IN A CASE PENDING BEFORE HIM THAN WAS HERE DONE.  THE
PUBLICATIONS WERE NOT ONLY REASONABLY CALCULATED TO ACCOMPLISH THAT
PURPOSE BUT THERE WAS ALSO A 'CLEAR AND PRESENT DANGER' THAT THEY WOULD
AND THE LIKELIHOOD THAT SUCH RESULT WOULD FOLLOW WAS 'EXTREMELY
SERIOUS' AND THE DEGREE OF 'IMMINENCE EXTREMELY HIGH.'"  149 TEX. CR. -
, 193 S.W.2D AT 189.  IT MUST BE EMPHASIZED THAT THE PUBLICATIONS IN
QUESTION WERE MADE AFTER IT WAS NOTORIOUS THAT A MOTION FOR A NEW TRIAL
HAD ALREADY BEEN MADE AND WOULD SHORTLY BE HEARD.  IN THE LIGHT OF THIS
CRUCIAL FACT - THAT THE TRIAL JUDGE WOULD SHORTLY BE CALLED UPON TO
RECONSIDER HIS INSTRUCTION TO THE JURY TO FIND FOR THE PLAINTIFF - THE
COURT BELOW FOUND THAT 

"THE PUBLICATIONS AND THEIR PURPOSE WERE TO IMPRESS UPON JUDGE
BROWNING (A) THAT UNLESS HE GRANTED THE MOTION FOR A NEW TRIAL HE WOULD
BE SUBJECTED TO SUSPICION AS TO HIS INTEGRITY AND FAIRNESS AND TO ODIUM
AND HATRED IN THE PUBLIC MIND; (B) THAT THE SAFE AND SECURE COURSE TO
AVOID THE CRITICISM OF THE PRESS AND PUBLIC OPINION WOULD BE TO GRANT
THE MOTION AND DISQUALIFY HIMSELF FROM AGAIN PRESIDING AT THE TRIAL OF
THE CASE; AND (C) THAT IF HE OVERRULED THE MOTION FOR A NEW TRIAL,
THERE WOULD BE PRODUCED IN THE PUBLIC MIND SUCH A DISREGARD FOR THE
COURT OVER WHICH HE PRESIDED AS TO GIVE RISE TO A PURPOSE IN PRACTICE
TO REFUSE TO RESPECT AND OBEY ANY ORDER, JUDGMENT, OR DECREE WHICH HE
MIGHT RENDER IN CONFLICT WITH THE VIEWS OF THE PUBLIC PRESS."  149 TEX.
CR. - , 193 S.W.2D AT 189. 

THE COURT MINIMIZES THESE FINDINGS BY POINTING TO A LIKENESS BETWEEN
THEM AND THOSE THAT WERE MADE IN TOLEDO NEWSPAPER CO. V. UNITED STATES,
247 U.S. 402, AND FOUND INADEQUATE BY MR. JUSTICE HOLMES' DISSENT, AN
INADEQUACY SUBSEQUENTLY SUPPORTED BY OUR DECISION IN NYE V. UNITED
STATES, 313 U.S. 33.  THE COURT ALSO DRAWS ON CRAIG V. HECHT, 263 U.S.
255, AS THOUGH WHAT WAS SAID THERE APPLIES HERE.  BUT THOSE THREE CASES
INVOLVED ONLY THE CONSTRUCTION OF THE FEDERAL STATUTE.  CONGRESS
DECIDED TO ALLOW THE POWER TO PUNISH FOR CONTEMPT THERETOFORE VESTED IN
THE LOWER FEDERAL COURTS, WHEN INVOKED AGAINST MISBEHAVIOR NOT IN THE
PRESENCE OF THE COURT, ONLY WHEN SUCH MISBEHAVIOR WAS "SO NEAR" THE
PRESENCE OF THE COURT "AS TO OBSTRUCT THE ADMINISTRATION OF JUSTICE." 
ACT OF MARCH 2, 1831, 4 STAT. 487; SEC. 268 OF THE JUDICIAL CODE, 28
U.S.C. SEC. 385; NYE V. UNITED STATES, SUPRA.  TEXAS, HOWEVER, HAS SEEN
FIT NOT TO RESTRICT THE POWER OF ITS COURTS TO PUNISH FOR CONTEMPT AS
DOES THE FEDERAL STATUTE.  THE POWER TO PUNISH FOR CONTEMPT WHICH THE
TEXAS LEGISLATURE GRANTED TO ITS COURTS MORE THAN A HUNDRED YEARS AGO
IS NOT RESTRICTED AS CONGRESS RESTRICTED THE CONTEMPT POWER OF THE
LOWER FEDERAL COURTS.  SEE ACTS 1846, P. 200; VERNON'S TEXAS STATUTES,
ART. 1955.  IT IS AN INADMISSIBLE JUMP FROM FINDING THAT CONDUCT IS NOT
CONTEMPT WITHIN THE FEDERAL ACT, TO FINDING THAT AN EXERTION OF STATE
POWER OFFENDED THE FOURTEENTH AMENDMENT.  YET THE COURT NOW FINDS THAT
TEXAS HAS TRANSGRESSED THE IMPLICATIONS OF THE DUE PROCESS CLAUSE BY
PUNISHING CONDUCT WHICH THIS COURT IN THE TOLEDO CASE THOUGHT WAS
WITHIN THE SCOPE EVEN OF THE FEDERAL ACT - A CONSTRUCTION WHICH IT
OCCURRED TO NO MEMBER OF THE COURT TO QUESTION ON CONSTITUTIONAL
GROUNDS. 

THE DIFFERENCE BETWEEN THE ISSUE BEFORE US AND THAT RAISED BY THE
TOLEDO AND CRAIG CASES IS BASIC.  IN THOSE CASES THE COURT HAD BEFORE
IT, AND MR. JUSTICE HOLMES WAS CONCERNED ONLY WITH, THE PROPER
APPLICATION OF A FEDERAL STATUTE SETTING A NARROWLY CONFINED SCOPE TO
THE POWER TO PUNISH FOR CONTEMPT.  THE COURT WAS NOT CONCERNED WITH THE
CONSTITUTIONAL POWER OF THE STATES TO ENFORCE A BROADER CONTEMPT
POLICY.  SUCH A POWER, IN FACT, HAD BEEN ASSUMED TO BE BEYOND DOUBT. 
"WHEN A CASE IS FINISHED, COURTS ARE SUBJECT TO THE SAME CRITICISM AS
OTHER PEOPLE, BUT THE PROPRIETY AND NECESSITY OF PREVENTING
INTERFERENCE WITH THE COURSE OF JUSTICE BY PREMATURE STATEMENT,
ARGUMENT OR INTIMIDATION HARDLY CAN BE DENIED."  SO WROTE MR. JUSTICE
HOLMES FOR THIS COURT.  PATTERSON V. COLORADO, 205 U.S. 454, 463.  TO
BE SURE, HE WROTE THIS FORTY YEARS AGO, AND ON SEVERAL OCCASIONS
THEREAFTER, AS PART OF THE FORMULATION OF HIS PROFOUND TOLERANCE FOR
FREEDOM OF EXPRESSION, HE SPOKE OUT AGAINST MISUSE OF THE POWER TO
PUNISH FOR CONTEMPT.  BUT NOTHING THAT THAT GREAT JUDGE EVER WROTE
QUALIFIED IN THE SLIGHTEST HIS CONVICTION THAT THE THEORY OF OUR SYSTEM
OF JUSTICE IS "THAT THE CONCLUSIONS TO BE REACHED IN A CASE WILL BE
INDUCED ONLY BY EVIDENCE AND ARGUMENT IN OPEN COURT, AND NOT BY ANY
OUTSIDE INFLUENCE, WHETHER OF PRIVATE TALK OR PUBLIC PRINT."  PATTERSON
V. COLORADO, SUPRA, AT 462.  MR. JUSTICE HOLMES HAD NO TOLERANCE
WHATEVER FOR ANY SPECIAL CLAIM BY JUDGES TO IMMUNITY FROM CRITICISM. 
HE WAS AGAINST ANYTHING THAT SMACKED OF SUMMARY PROCEEDING FOR WHAT WAS
KNOWN AS "SCANDALIZING THE COURT," THAT IS, SPEAKING ILL OF A COURT AS
AN INSTITUTION AND THEREBY ARGUMENTATIVELY BRINGING IT INTO DISREPUTE. 
HE WOULD ALLOW SUMMARY PUNISHMENT OF CONDUCT CALCULATED TO AFFECT A
JUDGE IN THE DISCHARGE OF HIS DUTY ONLY AS TO MATTERS "PENDING" BEFORE
HIM IN THE ACTIVE SENSE OF THAT TERM.  "IT IS NOT ENOUGH THAT SOMEBODY
MAY HEREAFTER MOVE TO HAVE SOMETHING DONE."  SO HE WROTE, DISSENTING,
IN CRAIG V. HECHT, SUPRA, AT 281.  AND IN HIS MISAPPLIED DISSENT IN THE
TOLEDO CASE HE EXPRESSED HIS IMPATIENCE WITH FEDERAL JUDGES WHO TAKE
NOTICE OF NEWSPAPER COMMENTS TO WHICH A JUDGE SHOULD BE INDIFFERENT. 
BUT HIS OPINION IN THAT CASE CONVEYS NOT A DOUBT AS TO THE POWER OF
STATES TO ENFORCE A POLICY FOR THE PUNISHMENT OF CONTEMPT IN RELATION
TO A PENDING CASE, THOUGH THE STATE POLICY BE NOT LIMITED AS CONGRESS
LIMITED THE POWER OF THE FEDERAL COURTS TO PUNISH FOR CONTEMPT.  THERE
IS NOT A BREATH OF A SUGGESTION IN THE OPINION IN THE NYE CASE THAT THE
RESTRICTED GEOGRAPHIC MEANING WHICH THE COURT GAVE TO THE ACT OF
CONGRESS DESIGNED TO LIMIT THE POWER OF THE LOWER FEDERAL COURTS WAS
REQUIRED BY CONSTITUTIONAL CONSIDERATIONS.  THE OPINIONS OF MR. JUSTICE
HOLMES CONTAIN NOT THE REMOTEST HINT THAT THE DUE PROCESS CLAUSE
WITHDREW FROM THE STATES THE POWER TO BASE A FINDING OF CONTEMPT ON
PUBLICATION AIMED AT A PARTICULAR OUTCOME OF A MATTER AWAITING
ADJUDICATION.  AND IT IS WORTHY OF NOTE THAT IN THE VERY OPINION IN
WHICH THE PHRASE "CLEAR AND PRESENT DANGER" WAS FIRST USED BY MR.
JUSTICE HOLMES, HE REFERRED TO HIS OPINION IN THE PATTERSON CASE, AND
NOT WITH DISAPPROVAL.  SEE SCHENCK V. UNITED STATES, 249 U.S. 47, 51
52. 

WE ARE NOT DEALING HERE WITH CRITICISMS, WHETHER TEMPERATE OR
UNBRIDLED, OF ACTION IN A CASE AFTER A JUDGE IS THROUGH WITH IT, OR OF
HIS JUDICIAL QUALIFICATIONS, OR OF HIS CONDUCT IN GENERAL.  COMMENT ON
WHAT A JUDGE HAS DONE - CRITICISM OF THE JUDICIAL PROCESS IN A
PARTICULAR CASE AFTER IT HAS EXHAUSTED ITSELF - NO MATTER HOW ILL
INFORMED OR IRRESPONSIBLE OR MISREPRESENTATIVE, IS PART OF THE PRECIOUS
RIGHT OF THE FREE PLAY OF OPINION.  WHATEVER VIOLENCE THERE MAY BE TO
TRUTH IN SUCH UTTERANCES MUST BE LEFT TO THE CORRECTION OF TRUTH. 
THE PUBLICATIONS NOW IN QUESTION DID NOT CONSTITUTE MERELY A NARRATIVE
OF A JUDGE'S CONDUCT IN A PARTICULAR CASE NOR A GENERAL COMMENTARY UPON
HIS COMPETENCE OR HIS PHILOSOPHY.  NOR WERE THEY A PLEA FOR REFORM OF
THE TEXAS LEGAL SYSTEM TO THE END THAT COUNTY COURT JUDGES SHOULD BE
LEARNED IN THE LAW AND THAT A JUDGMENT IN A SUIT OF FORCIBLE DETAINER
MAY BE APPEALABLE.  THE THRUST OF THE ARTICLES WAS DIRECTED TO WHAT THE
JUDGE SHOULD DO ON A MATTER IMMEDIATELY BEFORE HIM, NAMELY TO GRANT A
MOTION FOR A NEW TRIAL.  SO THE TEXAS COURT FOUND.  AND IT FOUND THIS
NOT IN THE ABSTRACT BUT ON THE PARTICULAR STAGE OF THE HAPPENINGS AND
IN THE CIRCUMSTANCES DISCLOSED BY THE RECORD.  THE TEXAS COURT MADE ITS
FINDINGS WITH REFERENCE TO THE LOCALITY WHERE THE EVENTS TOOK PLACE AND
IN CIRCUMSTANCES WHICH MAY EASILY IMPART SIGNIFICANCE TO THE TEXAS
COURT BUT MAY ELUDE FULL APPRECIATION HERE. 

CORPUS CHRISTI, THE LOCALE OF THE DRAMA, HAD A POPULATION OF LESS
THAN 60,000 AT THE LAST CENSUS, AND NUECES COUNTY ABOUT 92,000.  THE
THREE PAPERS WHICH PUBLISHED THE ARTICLES COMPLAINED OF ARE UNDER
COMMON CONTROL AND ARE THE ONLY PAPERS OF GENERAL CIRCULATION IN THE
AREA.  IT CAN HARDLY BE A COMPELLING PRESUMPTION THAT SUCH PAPERS SO
CONTROLLED HAD NO INFLUENCE, AT A TIME WHEN PATRIOTIC FERVOR WAS
RUNNING HIGH, IN STIRRING UP SENTIMENT OF POWERFUL GROUPS IN A SMALL
COMMUNITY IN FAVOR OF A VETERAN TO WHOM, IT WAS CHARGED, A GREAT WRONG
HAD BEEN DONE.  IT WOULD SEEM A NATURAL INFERENCE, AS THE COURT BELOW
IN EFFECT FOUND, THAT THESE NEWSPAPERS WHIPPED UP PUBLIC OPINION
AGAINST THE JUDGE TO SECURE REVERSAL OF HIS ACTION AND THEN PROFESSED
MERELY TO REPORT PUBLIC OPINION.  WE CANNOT SAY THAT THE TEXAS COURT
COULD NOT PROPERLY FIND THAT THESE NEWSPAPERS ASKED OF THE JUDGE, AND
INSTIGATED POWERFUL SECTIONS OF THE COMMUNITY TO ASK OF THE JUDGE, THAT
WHICH NO ONE HAS ANY BUSINESS TO ASK OF A JUDGE, EXCEPT THE PARTIES AND
THEIR COUNSEL IN OPEN COURT, NAMELY, THAT HE SHOULD DECIDE ONE WAY
RATHER THAN ANOTHER.  ONLY IF WE CAN SAY THAT THE TEXAS COURT HAD NO
BASIS IN REASON TO FIND WHAT IT DID FIND, CAN WE DENY THAT THE PURPOSE
OF THE ARTICLES IN THEIR SETTING WAS TO INDUCE THE JUDGE TO GRANT A NEW
TRIAL.  SURELY A JURY COULD REACH SUCH A CONCLUSION ON THESE FACTS.  WE
OUGHT NOT TO ALLOW LESS LEEWAY TO THE TEXAS COURT IN DRAWING INFERENCES
THAN WE WOULD TO A JURY.  BECAUSE IT IS A QUESTION OF DEGREE, THE FIELD
IN WHICH A COURT, LIKE A JURY, MAY "EXERCISE ITS JUDGMENT IS,
NECESSARILY, A WIDE ONE."  MR. JUSTICE BRANDEIS IN SCHAEFER V. UNITED
STATES, 251 U.S. 466, 483.  OF COURSE, THE FINDINGS BY A STATE COURT OF
WHAT ARE USUALLY DEEMED FACTS CANNOT FORECLOSE OUR SCRUTINY OF THEM IF
A CONSTITUTIONAL RIGHT DEPENDS ON A FAIR APPRAISAL OF THOSE FACTS.  BUT
IT WOULD BE NOVEL DOCTRINE INDEED TO SAY THAT WE MAY CONSIDER THE
RECORD AS IT COMES BEFORE US FROM A STATE COURT AS THOUGH IT WERE OUR
DUTY OR RIGHT TO ASCERTAIN THE FACTS IN THE FIRST INSTANCE.  A STATE
CANNOT BY TORTURING FACTS PRECLUDE US FROM CONSIDERING WHETHER IT HAS
THEREBY DENIED A CONSTITUTIONAL RIGHT.  NEITHER CAN THIS COURT FIND A
VIOLATION OF A CONSTITUTIONAL RIGHT BY DENYING TO A STATE ITS RIGHT TO
A FAIR APPRAISAL OF FACTS AND CIRCUMSTANCES PECULIARLY ITS CONCERN. 
OTHERWISE, IN EVERY CASE COMING HERE FROM A STATE COURT THIS COURT
MIGHT MAKE INDEPENDENT EXAMINATION OF THE FACTS, BECAUSE EVERY RIGHT
CLAIMED UNDER THE CONSTITUTION IS A FUNDAMENTAL RIGHT.  THE "MOST
RESPECTFUL ATTENTION" WHICH WE HAVE BEEN TOLD IS DUE TO A STATE WOULD
THEN BE MERELY AN EMPTY PROFESSION.  SEE PENNEKAMP V. FLORIDA, 328 U.S.
331, 335. 

IF UNDER ALL THE CIRCUMSTANCES THE TEXAS COURT HERE WAS NOT JUSTIFIED
IN FINDING THAT THESE PUBLICATIONS CREATED "A CLEAR AND PRESENT DANGER"
OF THE SUBSTANTIVE EVIL THAT TEXAS HAD A RIGHT TO PREVENT, NAMELY THE
PURPOSEFUL EXERTION OF EXTRANEOUS INFLUENCE IN HAVING THE MOTION FOR A
NEW TRIAL GRANTED, "CLEAR AND PRESENT DANGER" BECOMES MERELY A PHRASE
FOR COVERING UP A NOVEL, IRON CONSTITUTIONAL DOCTRINE.  HEREAFTER THE
STATES CANNOT DEAL WITH DIRECT ATTEMPTS TO INFLUENCE THE DISPOSITION OF
A PENDING CONTROVERSY BY A SUMMARY PROCEEDING, EXCEPT WHEN THE
MISBEHAVIOR PHYSICALLY PREVENTS PROCEEDINGS FROM GOING ON IN COURT, OR
OCCURS IN ITS IMMEDIATE PROXIMITY.  ONLY THE PUNGENT PEN OF MR. JUSTICE
HOLMES COULD ADEQUATELY COMMENT ON SUCH A PERVERSION OF THE PURPOSE OF
HIS PHRASE. 

CHANGES ARE RUNG ON THE REMARK OF MR. JUSTICE HOLMES IN THE TOLEDO
CASE THAT "A JUDGE OF THE UNITED STATES IS EXPECTED TO BE A MAN OF
ORDINARY FIRMNESS OF CHARACTER  ...  "  247 U.S. AT 424.  BUT IT IS
PERTINENT TO OBSERVE THAT THAT WAS SAID BY AN OLYMPIAN WHO WAS SO
REMOTE FROM THE COMMON CURRENTS OF LIFE THAT HE DID NOT READ
NEWSPAPERS.  EVEN A CONSCIENTIOUS JUDGE NOT A LAYMAN, AND NOT MERELY
ONE SERVING UNDER A SHORT JUDICIAL TENURE, MAY FIND HIMSELF IN A
DILEMMA WHEN SUBJECTED TO A BARRAGE PRESSING A PARTICULAR RESULT IN A
CASE IMMEDIATELY BEFORE HIM.  HE MAY NOT UNNATURALLY BE MOVED TO DO
WHAT IS URGED, OR HE MAY BE IMPELLED TO DISPLAY HIS INDEPENDENCE AND
NOT GIVE TO THE ARGUMENTS ON BEHALF OF THE MOTION FOR A NEW TRIAL THAT
SERENE AND UNDISTURBED CONSIDERATION WHICH OFTEN LEADS JUDGES TO GRANT
SUCH A MOTION.  IT HAS NOT BEEN UNKNOWN THAT JUDGES PERSIST IN ERROR TO
AVOID GIVING THE APPEARANCE OF WEAKNESS AND VACILLATION.  THUS, ONE OR
ANOTHER OF THE LITIGANTS BEFORE THE COURT MAY HAVE BEEN DENIED THAT
DISINTERESTED EXERCISE OF JUDGMENT WHICH IS OF THE ESSENCE OF THE
JUDICIAL PROCESS.  THE DEMANDS FOUND TO HAVE BEEN MADE UPON THE JUDGE
BY THESE PAPERS MAY AGITATE EVEN A CONSCIENTIOUS JUDGE.  HE MAY HIMSELF
BE UNAWARE OF THE EXTENT TO WHICH HIS POWERS OF REASON HAVE NOT THE
SWAY THEY WOULD OTHERWISE HAVE.  OR A JUDGE, PROUD OF HIS INDEPENDENCE,
MAY UNCONSCIOUSLY HAVE HIS BACK STIFFENED, AND THEREBY HIS MIND, WHEN
HEARING THE MOTION FOR A NEW TRIAL AND PASSING ON ITS VALIDITY.  JUDGES
ARE NOT MERELY THE HABITATIONS OF BLOODLESS CATEGORIES OF THE LAW WHICH
PURSUE THEIR PREDESTINED ENDS. 

THE FACT THAT IT CANNOT BE DEMONSTRATED HOW THE DELICATE BALANCE OF
AN ADJUDICATION WAS TAMPERED WITH, OR WHETHER IT WAS, DOES NOT PROVE
THAT IT WAS NOT TAMPERED WITH.  TO RELY ON THE ASSUMPTION THAT JUDGES
ARE MEN OF FORTITUDE AND THAT NO JUDGE "WORTHY OF THE NAME" WOULD BE
INFLUENCED IN HIS DECISION BY A PUBLICATION DIRECTED TOWARD A
PARTICULAR DISPOSITION OF A PENDING LITIGATION, IS TO SAY IN EFFECT
THAT THE DUE PROCESS CLAUSE PRECLUDES A STATE FROM BELIEVING THAT THERE
MAY BE SUCH A PSYCHOLOGICAL DANGER, SHORT OF THE FANTASTIC SITUATION
WHERE A JUDGE CONFESSES THAT HE DECIDED AS HE DID BECAUSE OF NEWSPAPER
PRESSURE, OR AVOWS THAT HE CAME AWFULLY CLOSE TO BEING DERELICT IN HIS
JUDICIAL DUTY BECAUSE OF SUCH PRESSURE.  IN BRIDGES V. CALIFORNIA, 314
U.S. 252, THIS COURT DID NOT PROFESS TO MAKE A CONSTITUTIONAL DOGMA OF
SO QUESTIONABLE A PSYCHOLOGICAL ASSUMPTION.  IT DID NOT CONDEMN
OUTRIGHT THE POWER OF A STATE SUMMARILY TO PUNISH FOR CONTEMPT A
PUBLICATION UTTERED OUTSIDE OF COURT BUT BROUGHT TO BEAR UPON A PENDING
CASE.  THE OPINION OF THE TEXAS COURT GIVES EVERY INDICATION OF
SCRUPULOUS OBEDIENCE TO THE REQUIREMENTS OF THE BRIDGES CASE.  NOR DID
THE DISSENTING JUDGE FIND CONFLICT WITH THE BRIDGES CASES.  IF WE
ACCORD "MOST RESPECTFUL ATTENTION" TO WHAT THE STATE COURT HAS DECIDED,
I AM UNABLE TO FIND ANY GROUND FOR REJECTING THE APPLICATION WHICH THE
TEXAS COURT MADE TO THE CIRCUMSTANCES OF THIS CASE OF THE PRINCIPLES
WHICH IT DREW FROM THE BRIDGES CASE. 

IS IT CONCEIVABLE THAT EVEN THE MOST DOCTRINAIRE LIBERTARIAN WOULD
THINK IT CONSONANT WITH THE IMPARTIALITY WHICH ADJUDICATION PRESUPPOSES
TO PUBLISH A POLL REGARDING THE OUTCOME DESIRED BY A COMMUNITY IN A
PENDING CASE?  HOW CAN THE INSERTION INTO THE SCALES OF JUSTICE OF A
NEWSPAPER'S OWN NOTION OF THE DESIRE OF A COMMUNITY FOR A PARTICULAR
RESULT IN A PENDING CASE BE MORE PERMISSIBLE THAN THE REPORT OF PUBLIC
FEELING AS ASCERTAINED BY A PUBLIC POLL?  AGAIN, SUPPOSE THE NEWSPAPER
ARTICLES HERE IN CONTROVERSY HAD BEEN ENCLOSED IN A LETTER TO THE JUDGE
URGING, ON THE BASIS OF THESE ARTICLES, A NEW TRIAL.  WOULD THE
CONSTITUTION OF THE UNITED STATES FORBID A STATE TO DEAL WITH SUCH
CONDUCT THROUGH THE CORRECTIVE PROCESS OF CONTEMPT?  BUT A DENIAL OF
THIS POWER TO THE STATES WHERE NEWSPAPERS CARRY THE SAME ARTICLES
DIRECTED TO THE SAME END CAN ONLY BE ON THE BASIS THAT PRIVATE
CORRESPONDENCE HAS LESS CONSTITUTIONAL PROTECTION THAN HAVE
NEWSPAPERS. 

TO AGREE WITH A PRINCIPLE IN PRINCIPLE ONLY TO DEPART FROM IT IN
PRACTICE HAS NOT BEEN SO FRUITFUL OF GOOD IN THE WORLD OF DIPLOMACY AS
TO SUGGEST ITS IMPORTATION INTO THE JUDICIAL PROCESS.  IF IT BE DEEMED
THAT THE DUE PROCESS CLAUSE PUT AN END TO THE HISTORIC POWER OF STATES
TO ALLOW SUMMARY PROCEEDINGS FOR CONTEMPT BY INTERFERENCE WITH AN
ACTUALLY PENDING CONTROVERSY, OR EVEN IF IT BE DEEMED OFFENSIVE TO DUE
PROCESS FOR THE JUDGE WHOSE CONDUCT IS CALLED IN QUESTION TO SIT IN
JUDGMENT UPON THE CONTEMNOR BECAUSE SELF-INTEREST IS TOO GREAT, SEE
TUMEY V. OHIO, 273 U.S. 510, AND COOKE V. UNITED STATES, 267 U.S. 517,
539, SUCH A BREAK WITH THE PAST HAD BEST BE COMPLETELY CANDID.  IT MAY
WELL BE THE DEEPER WISDOM TO TREAT WITH INTELLIGENT NEGLECT PARAGRAPHS
THAT ARE CALCULATED AND INTENDED TO INFLUENCE THE DISPOSITION OF
LITIGATION.  BUT THE WISDOM OF SUCH WISDOM IS NOT THE MEASURE OF THE
CONSTITUTIONAL POWER OF THE SEVERAL STATES TO DEAL WITH EXTRANEOUS
INFLUENCE DESIGNED TO AFFECT THE OUTCOME OF A PARTICULAR CASE. 

WE THINK THE JUDGMENT SHOULD BE AFFIRMED. 

MR. JUSTICE JACKSON, DISSENTING. 

THIS IS ONE OF THOSE CASES IN WHICH THE REASONS WE GIVE FOR OUR
DECISION ARE MORE IMPORTANT TO THE DEVELOPMENT OF THE LAW THAN THE
DECISION ITSELF. 

IT SEEMS TO ME THAT THE COURT IS ASSIGNING TWO UNTENABLE, IF NOT
HARMFUL, REASONS FOR ITS ACTION.  THE FIRST IS THAT THIS NEWSPAPER
PUBLISHER HAS DONE NO WRONG.  I TAKE IT THAT WE COULD NOT DENY THE
RIGHT OF THE STATE TO PUNISH HIM IF HE HAD DONE WRONG AND I DO NOT
SUPPOSE WE COULD SAY THAT THE TRADITIONAL REMEDY WAS AN
UNCONSTITUTIONAL ONE. 

THE RIGHT OF THE PEOPLE TO HAVE A FREE PRESS IS A VITAL ONE, BUT SO
IS THE RIGHT TO HAVE A CALM AND FAIR TRIAL FREE FROM OUTSIDE PRESSURES
AND INFLUENCES.  EVERY OTHER RIGHT, INCLUDING THE RIGHT OF A FREE PRESS
ITSELF, MAY DEPEND ON THE ABILITY TO GET A JUDICIAL HEARING AS
DISPASSIONATE AND IMPARTIAL AS THE WEAKNESS INHERENT IN MEN WILL
PERMIT.  I THINK THIS PUBLISHER PASSED BEYOND THE LEGITIMATE USE OF
PRESS FREEDOM AND INFRINGED THE CITIZEN'S RIGHT TO A CALM AND IMPARTIAL
TRIAL.  I DO NOT THINK WE CAN SAY THAT IT IS BEYOND THE POWER OF THE
STATE TO EXERT SAFEGUARDS AGAINST SUCH INTERFERENCE WITH THE COURSE OF
TRIAL AS WE HAVE HERE. 

THIS WAS A PRIVATE LAWSUIT BETWEEN INDIVIDUALS.  IT INVOLVED AN ISSUE
OF NO GREATER PUBLIC IMPORTANCE THAN WHICH OF TWO CLAIMANTS SHOULD BE
THE TENANT OF THE "PLAYBOY CAFE."  THE PUBLIC INTEREST IN THE
LITIGATION WAS THAT DISPASSIONATE JUSTICE BE DONE BY THE COURT AND THAT
IT APPEAR TO BE DONE. 

THE PUBLISHER HAD A COMPLETE MONOPOLY OF NEWSPAPER PUBLICITY IN THAT
LOCALITY.  FOR REASONS THAT ARE NOT APPARENT, THE PAPERS TOOK AN
UNUSUAL INTEREST IN THE PROCEEDING.  THEY FIRST MADE WHAT THE COURT
AGREES WAS A "RATHER SKETCHY AND ONE-SIDED REPORT OF A CASE."  THIS IS
NOT OVERSTATEMENT.  THE FORMER TENANT HAD TENDERED A CHECK AND THE
NEWSPAPER REPORT REPRESENTED IT AS A PAYMENT OF RENT; IT MADE NO
REFERENCE TO THE FACT THAT THE CHECK WAS POSTDATED AND WAS THEREFORE NO
PAYMENT AT ALL.  REPORTS PLAYED UP THE FACT THAT ITS FAVORITE AMONG THE
LITIGANTS WAS A VETERAN.  THE COMMUNITY BECAME AROUSED.  THEN THE
NEWSPAPER PUBLISHED EDITORIALS WHICH ATTACKED THE JUDGE WHILE A MOTION
FOR RETRIAL WAS PENDING WITH WHAT THE PREVAILING OPINION CONCEDES WAS
"STRONG LANGUAGE, INTEMPERATE LANGUAGE, AND, WE ASSUME, AN UNFAIR
CRITICISM."  THE OBJECT OF THE PUBLICITY APPEARS TO HAVE BEEN TO GET
THE JUDGE TO REVERSE HIMSELF AND TO GRANT A NEW TRIAL. 

THE FACT THAT HE DID NOT YIELD TO IT DOES NOT PROVE THAT THE ATTACK
WAS NOT AN EFFECTIVE INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE. 
THE JUDGE WAS PUT IN A POSITION IN WHICH HE EITHER MUST APPEAR TO YIELD
HIS JUDGMENT TO PUBLIC CLAMOR OR TO DEFY PUBLIC SENTIMENT.  THE
CONSEQUENCE OF ATTACKS MAY DIFFER WITH THE TEMPERAMENT OF THE JUDGE. 
SOME JUDGES MAY TAKE FRIGHT AND YIELD WHILE OTHERS BECOME MORE SET IN
THEIR COURSE IF ONLY TO MAKE CLEAR THAT THEY WILL NOT BE BULLIED.  THIS
JUDGE WAS EVIDENTLY OF THE LATTER TYPE.  HE WAS DIVERTED FROM THE CALM
CONSIDERATION OF THE LITIGATION BEFORE HIM BY WHAT HE REGARDED AS A
DUTY TO INSTITUTE A CONTEMPT PROCEEDING OF HIS OWN AGAINST HIS
TORMENTORS. 

FOR THIS COURT TO IMPLY THAT THIS KIND OF ATTACK DURING A PENDING
CASE IS ALL RIGHT SEEMS TO ME TO COMPOUND THE WRONG.  THE PRESS OF THE
COUNTRY MAY RIGHTFULLY TAKE THE DECISION OF THIS COURT TO MEAN
INDIFFERENCE TOWARD, IF NOT APPROVAL OF, SUCH ATTACKS UPON COURTS
DURING PENDING CASES.  I THINK THIS OPINION CONVEYS A WRONG IMPRESSION
OF THE RESPONSIBILITIES OF A FREE PRESS FOR THE CALM AND DISPASSIONATE
ADMINISTRATION OF JUSTICE AND THAT WE SHOULD NOT HESITATE TO CONDEMN
WHAT HAS BEEN DONE HERE. 

BUT EVEN WORSE IS THAT THIS COURT APPEARS TO SPONSOR THE MYTH THAT
JUDGES ARE NOT AS OTHER MEN ARE, AND THAT THEREFORE NEWSPAPER ATTACKS
ON THEM ARE NEGLIGIBLE BECAUSE THEY DO NOT PENETRATE THE JUDICIAL
ARMOR.  SAYS THE OPINION:  "BUT THE LAW OF CONTEMPT IS NOT MADE FOR THE
PROTECTION OF JUDGES WHO MAY BE SENSITIVE TO THE WINDS OF PUBLIC
OPINION.  JUDGES ARE SUPPOSED TO BE MEN OF FORTITUDE, ABLE TO THRIVE IN
A HARDY CLIMATE."  WITH DUE RESPECT TO THOSE WHO THINK OTHERWISE, TO ME
THIS IS AN ILL-FOUNDED OPINION, AND TO INFORM THE PRESS THAT IT MAY BE
IRRESPONSIBLE IN ATTACKING JUDGES BECAUSE THEY HAVE SO MUCH FORTITUDE
IS ILL-ADVISED, OR WORSE.  I DO NOT KNOW WHETHER IT IS THE VIEW OF THE
COURT THAT A JUDGE MUST BE THICK-SKINNED OR JUST THICKHEADED, BUT
NOTHING IN MY EXPERIENCE OR OBSERVATION CONFIRMS THE IDEA THAT HE IS
INSENSITIVE TO PUBLICITY.  WHO DOES NOT PREFER GOOD TO ILL REPORT OF
HIS WORK?  AND IF FAME - A GOOD PUBLIC NAME - IS, AS MILTON SAID, THE
"LAST INFIRMITY OF NOBLE MIND," IT IS FREQUENTLY THE FIRST INFIRMITY OF
A MEDIOCRE ONE.    FROM OUR SHELTERED POSITION, FORTIFIED BY LIFE
TENURE AND OTHER DEFENSES TO JUDICIAL INDEPENDENCE, IT IS EASY TO SAY
THAT THIS LOCAL JUDGE OUGHT TO HAVE SHOWN MORE FORTITUDE IN THE FACE OF
CRITICISM.  BUT HE HAD NO SUCH PROTECTION.  HE WAS AN ELECTIVE JUDGE,
WHO HELD FOR A SHORT TERM.  I DO NOT TAKE IT THAT AN AMBITION OF A
JUDGE TO REMAIN A JUDGE IS EITHER UNUSUAL OR DISHONORABLE.  MOREOVER,
HE WAS NOT A LAWYER, AND I REGARD THIS AS A MATTER OF SOME
CONSEQUENCE.  A LAWYER MAY GAIN COURAGE TO RENDER A DECISION THAT
TEMPORARILY IS UNPOPULAR BECAUSE HE HAS CONFIDENCE THAT HIS PROFESSION
OVER THE YEARS WILL APPROVE IT, DESPITE ITS UNPOPULAR RECEPTION, AS HAS
BEEN THE CASE WITH MANY GREAT DECISIONS.  BUT THIS JUDGE HAD NO ANCHOR
IN PROFESSIONAL OPINION.  OF COURSE, THE BLASTS OF THESE LITTLE PAPERS
IN THIS SMALL COMMUNITY DO NOT JOLT US, BUT I AM NOT SO CONFIDENT THAT
WE WOULD BE INDIFFERENT IF A NEWS MONOPOLY IN OUR ENTIRE JURISDICTION
SHOULD PERPETRATE THIS KIND OF AN ATTACK ON US. 

IT IS DOUBTFUL IF THE PRESS ITSELF REGARDS JUDGES AS SO INSULATED
FROM PUBLIC OPINION.  IN THIS VERY CASE THE AMERICAN NEWSPAPER
PUBLISHERS ASSOCIATION FILED A BRIEF AMICUS CURIAE ON THE MERITS AFTER
WE GRANTED CERTIORARI.  OF COURSE, IT DOES NOT CITE A SINGLE AUTHORITY
THAT WAS NOT AVAILABLE TO COUNSEL FOR THE PUBLISHER INVOLVED, AND DOES
NOT TELL US A SINGLE NEW FACT EXCEPT THIS ONE:  "THIS MEMBERSHIP
EMBRACES MORE THAN 700 NEWSPAPER PUBLISHERS WHOSE PUBLICATIONS
REPRESENT IN EXCESS OF EIGHTY PER CENT OF THE TOTAL DAILY AND SUNDAY
CIRCULATION OF NEWSPAPERS PUBLISHED IN THIS COUNTRY.  THE ASSOCIATION
IS VITALLY INTERESTED IN THE ISSUE PRESENTED IN THIS CASE, NAMELY, THE
RIGHT OF NEWSPAPERS TO PUBLISH NEWS STORIES AND EDITORIALS ON CASES
PENDING IN THE COURTS." 

THIS MIGHT BE A GOOD OCCASION TO DEMONSTRATE THE FORTITUDE OF THE
JUDICIARY. 
..END :






LABOR BOARD V. ATKINS & CO., 331 U.S. 398 


NO. 419.  ARGUED MARCH 7, 10, 1947.  - DECIDED MAY 19, 1947.  - 155 F.2D
567, REVERSED. 


1.  THE DETERMINATION OF THE NATIONAL LABOR RELATIONS BOARD THAT, IN
THE CIRCUMSTANCES OF THIS CASE, CERTAIN GUARDS AT A PRIVATE PLANT OF
THE RESPONDENT ENGAGED IN WAR PRODUCTION, THOUGH EMPLOYED IN ACCORDANCE
WITH A REQUIREMENT OF THE WAR DEPARTMENT AND ENROLLED AS CIVILIAN
AUXILIARIES TO THE MILITARY POLICE OF THE UNITED STATES ARMY SUBJECT TO
ARMY REGULATIONS, WERE "EMPLOYEES" OF RESPONDENT WITHIN THE MEANING OF
SEC. 2(3) OF THE NATIONAL LABOR RELATIONS ACT WAS JUSTIFIED BY THE
EVIDENCE AND THE LAW; AND THE CEASE-AND-DESIST ORDER BASED THEREON
SHOULD HAVE BEEN ENFORCED BY THE CIRCUIT COURT OF APPEALS.  PP. 414
415. 

2.  A DETERMINATION OF THE BOARD THAT RANK-AND-FILE PLANT GUARDS ARE
"EMPLOYEES" UNDER THE ACT MAY IN AN APPROPRIATE CASE BE LEGALLY
JUSTIFIED, SINCE THEY BEAR ESSENTIALLY THE SAME RELATION TO MANAGEMENT
AS MAINTENANCE AND PRODUCTION EMPLOYEES.  PP. 404-405. 

3.  A PROCEEDING TO ENFORCE A CEASE-AND-DESIST ORDER OF THE NATIONAL
LABOR RELATIONS BOARD, BASED UPON A FINDING THAT THE EMPLOYER HAD
COMMITTED AN UNFAIR LABOR PRACTICE BY REFUSING TO RECOGNIZE AND BARGAIN
WITH A UNION SELECTED BY PRIVATE PLANT GUARDS WHILE THEY WERE SERVING
AS CIVILIAN AUXILIARIES OF THE MILITARY POLICE OF THE ARMY, HELD NOT TO
HAVE BEEN RENDERED MOOT BY THE SUBSEQUENT DEMILITARIZATION OF THE
GUARDS.  P. 402. 

4.  A DETERMINATION BY THE NATIONAL LABOR RELATIONS BOARD OF WHETHER
ONE IS AN "EMPLOYEE" WITHIN THE COVERAGE OF THE NATIONAL LABOR
RELATIONS ACT MUST BE ACCEPTED BY THE REVIEWING COURTS IF IT HAS A
REASONABLE BASIS IN THE EVIDENCE AND IS NOT INCONSISTENT WITH THE LAW. 
LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111.  P. 403. 

5.  IN DEFINING AND APPLYING THE TERMS "EMPLOYER" AND "EMPLOYEE," AS
USED IN THE NATIONAL LABOR RELATIONS ACT, THE BOARD IS NOT CONFINED TO
THE TECHNICAL AND TRADITIONAL CONCEPTS OF "EMPLOYER" AND "EMPLOYEE,"
BUT IS FREE TO TAKE ACCOUNT OF THE MORE RELEVANT ECONOMIC AND STATUTORY
CONSIDERATIONS.  P. 403. 

NATIONAL LABOR RELATIONS BOARD V. E.C. ATKINS & CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 56 N.L.R.B. 1056,
ISSUED UNDER THE NATIONAL LABOR RELATIONS ACT, WAS DENIED ENFORCEMENT
BY THE CIRCUIT COURT OF APPEALS.  155 F.2D 567.  (A PREVIOUS JUDGMENT,
147 F.2D 730, HAD BEEN VACATED AND THE CASE REMANDED BY THIS COURT, 325
U.S. 838.)  THIS COURT GRANTED CERTIORARI.  329 U.S. 710.  REVERSED, P.
415. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE PROBLEM POSED BY THIS CASE IS WHETHER PRIVATE PLANT GUARDS, WHO
ARE REQUIRED TO BE CIVILIAN AUXILIARIES TO THE MILITARY POLICE OF THE
UNITED STATES ARMY, ARE EMPLOYEES WITHIN THE MEANING OF SEC. 2(3) OF
THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. SEC. 152(3). 

AT ALL MATERIAL TIMES, THE RESPONDENT CORPORATION WAS ENGAGED IN THE
MANUFACTURE OF SAWS, TOOLS AND ARMOR PLATE.  IT EMPLOYED MORE THAN
1,200 PRODUCTION AND MAINTENANCE EMPLOYEES AT ITS TWO PLANTS AT
INDIANAPOLIS, INDIANA.  BEFORE IT BEGAN TO PRODUCE ARMOR PLATE FOR
DEFENSE AND WAR PURPOSES, RESPONDENT EMPLOYED ABOUT SIX WATCHMEN OR
GUARDS.  WHEN IT ENTERED UPON WAR PRODUCTION, HOWEVER, THE WAR
DEPARTMENT REQUIRED THAT AN AUXILIARY MILITARY POLICE FORCE OF SIXTY
FOUR MEMBERS BE ESTABLISHED TO GUARD THE PLANTS. 

IN 1943, AFTER THE NECESSARY ADDITIONAL GUARDS HAD BEEN RECRUITED, A
UNION  FN1  PETITIONED THE NATIONAL LABOR RELATIONS BOARD FOR
INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES PURSUANT TO SEC.
9(C) OF THE ACT.  IT WAS ALLEGED THAT THE UNION REPRESENTED THE SIXTY
FOUR PLANT GUARDS EMPLOYED BY RESPONDENT AT ITS TWO PLANTS.  THE
RESPONDENT MOVED TO DISMISS THE PETITION ON THE GROUND THAT IT WAS NOT
THE EMPLOYER OF THE GUARDS WITHIN THE MEANING OF SEC. 2(2) AND THAT THE
GUARDS WERE NOT EMPLOYEES AS DEFINED BY SEC. 2(3).  A HEARING WAS
THEREUPON HELD AND EVIDENCE CONCERNING THE STATUS OF THE GUARDS WAS
INTRODUCED. 

ON OCTOBER 19, 1943, THE BOARD CONCLUDED FROM THE EVIDENCE THUS
SUBMITTED THAT THESE PLANT GUARDS WERE EMPLOYEES WITHIN THE MEANING OF
SEC. 2(3) DESPITE THEIR STATUS AS CIVILIAN AUXILIARIES TO THE MILITARY
POLICE.  52 N.L.R.B. 1470.  IT HELD THAT ALL THE PLANT GUARDS AT
RESPONDENT'S TWO PLANTS, EXCLUDING THE CHIEF GUARDS, LIEUTENANTS AND
ALL OTHER SUPERVISORY EMPLOYEES WITH AUTHORITY TO HIRE, PROMOTE,
DISCHARGE, DISCIPLINE, OR OTHERWISE EFFECT CHANGES IN THE STATUS OF
EMPLOYEES, OR EFFECTIVELY RECOMMEND SUCH ACTION, CONSTITUTED A UNIT
APPROPRIATE FOR COLLECTIVE BARGAINING.  AN ELECTION WAS THEREFORE
DIRECTED TO BE HELD, WHICH RESULTED IN THE UNION IN QUESTION BEING
CHOSEN AS BARGAINING REPRESENTATIVE.  THE UNION WAS CERTIFIED BY THE
BOARD AS THE EXCLUSIVE REPRESENTATIVE OF THE PLANT GUARDS. 

SUBSEQUENTLY, THE UNION FILED CHARGES THAT THE RESPONDENT HAD REFUSED
TO BARGAIN COLLECTIVELY.  A COMPLAINT WAS ISSUED BY THE BOARD, FOLLOWED
BY A HEARING AT WHICH EVIDENCE REGARDING THAT REFUSAL WAS INTRODUCED. 
THE BOARD, ON MAY 30, 1944, ISSUED ITS DECISION IN WHICH IT CONCLUDED
THAT THE GUARDS WERE EMPLOYEES OF RESPONDENT AND THAT THE LATTER HAD
COMMITTED UNFAIR LABOR PRACTICES IN REFUSING TO BARGAIN WITH THE
UNION.  56 N.L.R.B. 1056. 

THE BOARD ACCORDINGLY ISSUED AN ORDER REQUIRING RESPONDENT TO CEASE
AND DESIST FROM REFUSING TO BARGAIN COLLECTIVELY WITH THE UNION, AND
COMMANDING IT TO BARGAIN WITH THE UNION, UPON REQUEST, IN RESPECT TO
RATES OF PAY, WAGES, HOURS OF EMPLOYMENT AND OTHER CONDITIONS OF
EMPLOYMENT.  THE SEVENTH CIRCUIT COURT OF APPEALS DECLINED TO ENFORCE
THE BOARD'S ORDER, HOLDING (1) THAT THE GUARDS WERE NOT EMPLOYEES OF
THE RESPONDENT WITHIN THE MEANING OF SEC. 2(3) OF THE ACT SINCE THEY
WERE MILITARIZED, AND (2) THAT EVEN IF THE MILITARIZED GUARDS WERE TO
BE CONSIDERED AS EMPLOYEES OF RESPONDENT, ENFORCEMENT OF THE BOARD'S
ORDER SHOULD NOT BE ALLOWED BECAUSE TO DO SO WOULD BE OR WOULD LIKELY
BE INIMICAL TO THE PUBLIC WELFARE.  147 F.2D 730. 

IN FILING A PETITION IN THIS COURT FOR A WRIT OF CERTIORARI, THE
BOARD NOTED THAT THE GUARD FORCES AT RESPONDENT'S PLANTS HAD BEEN
DEMILITARIZED EARLY IN 1944, BUT URGED THAT THE CASE WAS NOT THEREBY
RENDERED MOOT.  WE GRANTED CERTIORARI, VACATED THE JUDGMENT BELOW AND
REMANDED THE CASE TO THE CIRCUIT COURT OF APPEALS "FOR FURTHER
CONSIDERATION OF THE ALLEGED CHANGED CIRCUMSTANCES WITH RESPECT TO THE
DEMILITARIZATION OF THE EMPLOYEES INVOLVED, AND THE EFFECT THEREOF ON
THE BOARD'S ORDERS."  325 U.S. 838. 

THE BOARD AND THE RESPONDENT ENTERED INTO A STIPULATION RELATIVE TO
THE DATES AND CIRCUMSTANCES OF THE DEMILITARIZATION OF THE GUARDS.  THE
STIPULATION NOTED THAT MOST OF THE GUARDS HAD BEEN RELEASED FROM
SERVICE AND THAT ONLY ELEVEN OF THEM HAD BEEN RETAINED AS WATCHMEN BY
RESPONDENT AS OF FEBRUARY 23, 1946; AND THOSE ELEVEN HAD BEEN "SWORN IN
AS DEPUTY POLICEMEN BY THE CITY OF INDIANAPOLIS."  THE BOARD THEN FILED
A MOTION IN THE CIRCUIT COURT OF APPEALS FOR A DECREE ENFORCING ITS
ORDER.  THIS MOTION WAS DENIED AND THE PRIOR HOLDING WAS REAFFIRMED,
THE COURT STATING THAT THE DEMILITARIZATION WAS IRRELEVANT TO THE ISSUE
OF WHETHER THE PLANT GUARDS WERE EMPLOYEES AT THE TIME WHEN THE
RESPONDENT REFUSED TO BARGAIN WITH THE UNION.  155 F.2D 567.  THE
IMPORTANCE OF THE PROBLEM RAISED BY THE CASE, TOGETHER WITH A CONFLICT
OVER THE ANSWER TO THIS PROBLEM BETWEEN THE COURT BELOW AND THE SIXTH
CIRCUIT COURT OF APPEALS, LABOR BOARD V. JONES & LAUGHLIN STEEL CORP.,
146 F.2D 718, PROMPTED US TO GRANT A FURTHER REVIEW OF THE CASE. 

WE AGREE WITH THE CIRCUIT COURT OF APPEALS THAT THE DEMILITARIZATION
OF THE GUARDS DID NOT RENDER THE CASE MOOT AND THAT IT HAD NO EFFECT
UPON THE PRIME ISSUE IN THE CASE.  THE BOARD'S ORDER WAS BASED UPON A
HOLDING THAT THE RESPONDENT COMMITTED AN UNFAIR LABOR PRACTICE BY
REFUSING TO RECOGNIZE AND BARGAIN WITH THE UNION SELECTED BY THE
MILITARIZED GUARDS.  AND THAT REFUSAL OCCURRED AT A TIME WHEN THE
GUARDS WERE STILL MILITARIZED.  A DETERMINATION THAT THE RESPONDENT HAD
A STATUTORY DUTY TO BARGAIN WITH THE UNION AT THAT TIME IS THEREFORE
ESSENTIAL TO THE VALIDITY OF THE BOARD'S ORDER.  THE FACT THAT THE
GUARDS WERE SUBSEQUENTLY DEMILITARIZED DID NOT AFFECT THEIR STATUS AS
EMPLOYEES AT THIS CRUCIAL JUNCTURE; NOR DID IT RELIEVE RESPONDENT OF
ANY DUTY TO BARGAIN THAT IT MIGHT OTHERWISE HAVE HAD AT THAT POINT. 

THE BOARD'S ORDER, MOREOVER, WAS A CONTINUING DIRECTION TO BARGAIN
COLLECTIVELY WITH THE UNION DESIGNATED BY THE GUARDS.  DEMILITARIZATION
HAS NOT DISPENSED WITH WHATEVER DUTY RESPONDENT MAY HAVE NOW OR IN THE
FUTURE TO COMPLY WITH THAT ORDER.  IF THE GUARDS WERE EMPLOYEES OF
RESPONDENT ENTITLED TO THE BENEFITS OF THE ACT DURING THE PERIOD OF
MILITARIZATION, A FORTIORI THEY ARE EMPLOYEES NOW THAT ALL CONNECTIONS
WITH THE ARMY HAVE BEEN SEVERED; AND THEIR STATUTORY RIGHTS CONTINUE TO
BE ENTITLED TO FULL RESPECT.  RESPONDENT'S GUARD FORCE STILL REMAINS IN
EXISTENCE, ALTHOUGH CONSIDERABLY REDUCED IN SIZE, AND THE UNION
PRESUMABLY CONTINUES TO BE THE REPRESENTATIVE OF THE GUARDS.  UNDER
SUCH CIRCUMSTANCES, THE CASE IS NOT MOOT.  LABOR BOARD V. GREYHOUND
LINES, 303 U.S. 261, 271; J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332,
334.  SEE ALSO FEDERAL TRADE COMMISSION V. GOODYEAR CO., 304 U.S. 257,
260. 

AS TO THE MERITS, IT IS ELEMENTARY THAT THE BOARD HAS THE DUTY OF
DETERMINING IN THE FIRST INSTANCE WHO IS AN EMPLOYEE FOR PURPOSES OF
THE NATIONAL LABOR RELATIONS ACT AND THAT THE BOARD'S DETERMINATION
MUST BE ACCEPTED BY REVIEWING COURTS IF IT HAS A REASONABLE BASIS IN
THE EVIDENCE AND IS NOT INCONSISTENT WITH THE LAW.  LABOR BOARD V.
HEARST PUBLICATIONS, 322 U.S. 111.  REALIZING THAT LABOR DISPUTES AND
INDUSTRIAL STRIFE ARE NOT CONFINED TO THOSE WHO FALL WITHIN ORDINARY
LEGAL CLASSIFICATIONS, CONGRESS HAS NOT ATTEMPTED TO SPELL OUT A
DETAILED OR RIGID DEFINITION OF AN EMPLOYEE OR OF AN EMPLOYER.  THE
RELEVANT PORTION OF SEC. 2(3) SIMPLY PROVIDES THAT "THE TERM 'EMPLOYEE'
SHALL INCLUDE ANY EMPLOYEE,  ...  "  IN CONTRAST, SEC. 2(2) STATES THAT
"THE TERM 'EMPLOYER' INCLUDES ANY PERSON ACTING IN THE INTEREST OF AN
EMPLOYER, DIRECTLY OR INDIRECTLY,  ...  "  AS WE RECOGNIZED IN THE
HEARST CASE, THE TERMS "EMPLOYEE" AND "EMPLOYER" IN THIS STATUTE CARRY
WITH THEM MORE THAN THE TECHNICAL AND TRADITIONAL COMMON LAW
DEFINITIONS.  THEY ALSO DRAW SUBSTANCE FROM THE POLICY AND PURPOSES OF
THE ACT, THE CIRCUMSTANCES AND BACKGROUND OF PARTICULAR EMPLOYMENT
RELATIONSHIPS, AND ALL THE HARD FACTS OF INDUSTRIAL LIFE. 

AND SO THE BOARD, IN PERFORMING ITS DELEGATED FUNCTION OF DEFINING
AND APPLYING THESE TERMS, MUST BRING TO ITS TASK AN APPRECIATION OF
ECONOMIC REALITIES, AS WELL AS A RECOGNITION OF THE AIMS WHICH CONGRESS
SOUGHT TO ACHIEVE BY THIS STATUTE.  THIS DOES NOT MEAN THAT IT SHOULD
DISREGARD THE TECHNICAL AND TRADITIONAL CONCEPTS OF "EMPLOYEE" AND
"EMPLOYER."  BUT IT IS NOT CONFINED TO THOSE CONCEPTS.  IT IS FREE TO
TAKE ACCOUNT OF THE MORE RELEVANT ECONOMIC AND STATUTORY
CONSIDERATIONS.  AND A DETERMINATION BY THE BOARD BASED IN WHOLE OR IN
PART UPON THOSE CONSIDERATIONS IS ENTITLED TO GREAT RESPECT BY A
REVIEWING COURT, DUE TO THE BOARD'S FAMILIARITY WITH THE PROBLEMS AND
ITS EXPERIENCE IN THE ADMINISTRATION OF THE ACT. 

LAYING ASIDE FOR THE MOMENT THE MATTER OF MILITARIZATION, WE CANNOT
SAY IN THIS CASE THAT THE BOARD WOULD BE LEGALLY UNJUSTIFIED IN HOLDING
THAT THE RANK-AND-FILE PLANT GUARDS ARE EMPLOYEES WITHIN THE MEANING OF
THE ACT.  THEY BEAR ESSENTIALLY THE SAME RELATION TO MANAGEMENT AS
MAINTENANCE AND PRODUCTION EMPLOYEES.  IN FACT, THEY ARE
INDISTINGUISHABLE FROM ORDINARY WATCHMEN, GATEMEN, PATROLMEN, FIREMEN
AND GUARDS - PERSONS WHO HAVE UNIVERSALLY BEEN REGARDED AND TREATED AS
EMPLOYEES FOR PURPOSES OF UNION MEMBERSHIP AND EMPLOYEE BENEFITS.  THEY
PERFORM SUCH DUTIES AS INSPECTING PERSONS, PACKAGES AND VEHICLES,
CARRYING CASH TO VARIOUS PARTS OF THE PLANT, AND GENERALLY SURVEYING
THE PREMISES TO DETECT FIRES, SUSPICIOUS CIRCUMSTANCES AND SABOTAGE. 
MOREOVER, THE GUARDS IN QUESTION ARE NOT SUPERVISORS; THEY POSSESS NO
POWER TO AFFECT THE WORKING CONDITIONS OF OTHER EMPLOYEES.  WITHOUT
COLLECTIVE BARGAINING, THEY ARE SUBJECT TO THE UNILATERAL DETERMINATION
BY THE EMPLOYER OF THEIR WAGES, HOURS, SENIORITY, TENURE AND OTHER
CONDITIONS OF WORK.  INDIVIDUALLY, THEY SUFFER FROM INEQUALITY OF
BARGAINING POWER AND THEIR NEED FOR COLLECTIVE ACTION PARALLELS THAT OF
OTHER EMPLOYEES.  FROM ANY ECONOMIC OR STATUTORY STANDPOINT, THE BOARD
WOULD BE WARRANTED IN TREATING THEM AS EMPLOYEES.  EVEN UNDER
CONVENTIONAL STANDARDS, THEY ARE CONTROLLED BY MANAGEMENT TO AN EXTENT
SUFFICIENT TO JUSTIFY DESIGNATING THEM AS EMPLOYEES. 

NOR CAN WE SAY, AS A MATTER OF LAW, THAT PERMITTING PLANT GUARDS TO
BE CONSIDERED AS EMPLOYEES ENTITLED TO THE BENEFITS OF THE ACT WOULD
MAKE THEM ANY LESS LOYAL TO THEIR EMPLOYER IN CARRYING OUT THEIR
DESIGNATED TASKS.  IN GUARDING THE PLANT AND PERSONNEL AGAINST PHYSICAL
DANGER, THEY REPRESENT THE MANAGEMENT'S LEGITIMATE INTEREST IN PLANT
PROTECTION.  BUT THAT FUNCTION IS NOT NECESSARILY INCONSISTENT WITH
ORGANIZING AND BARGAINING WITH THE EMPLOYER ON MATTERS AFFECTING THEIR
OWN WAGES, HOURS AND WORKING CONDITIONS.  THEY DO NOT LOSE THE RIGHT TO
SERVE THEMSELVES IN THESE RESPECTS MERELY BECAUSE IN OTHER RESPECTS
THEY REPRESENT A SEPARATE AND INDEPENDENT INTEREST OF MANAGEMENT.  AS
IN THE CASE OF FOREMEN, WE SEE NO BASIS IN THE ACT WHATEVER FOR DENYING
PLANT GUARDS THE BENEFITS OF THE STATUTE WHEN THEY TAKE COLLECTIVE
ACTION TO PROTECT THEIR COLLECTIVE INTERESTS.  PACKARD MOTOR CAR CO. V.
LABOR BOARD, 330 U.S. 485. 

WE CANNOT ASSUME, MOREOVER, THAT LABOR ORGANIZATIONS WILL MAKE
DEMANDS UPON PLANT GUARD MEMBERS OR EXTRACT CONCESSIONS FROM EMPLOYERS
SO AS TO DECREASE THE LOYALTY AND EFFICIENCY OF THE GUARDS IN THE
PERFORMANCE OF THEIR OBLIGATIONS TO THE EMPLOYERS.  THERE IS ALWAYS
THAT POSSIBILITY, BUT IT DOES NOT QUALIFY AS A LEGAL BASIS FOR TAKING
AWAY FROM THE GUARDS ALL THEIR STATUTORY RIGHTS.  IN OTHER WORDS,
UNIONISM AND COLLECTIVE BARGAINING ARE CAPABLE OF ADJUSTMENTS TO
ACCOMMODATE THE SPECIAL FUNCTIONS OF PLANT GUARDS. 

THE CRUCIAL PROBLEM IN THIS CASE, HOWEVER, IS WHETHER THE
MILITARIZATION OF THE PLANT GUARDS CHANGED THEIR STATUS AS EMPLOYEES AS
A MATTER OF LAW SO AS TO PROHIBIT THE BOARD FROM EXTENDING TO THEM THE
BENEFITS OF THE ACT WHICH THEY WOULD OTHERWISE HAVE.  THE SHORT ANSWER
TO THAT PROBLEM IS THAT MILITARIZATION AS SUCH DOES NOT NECESSARILY
CHANGE THE STATUS OF PLANT GUARDS.  IT MAY OR MAY NOT BRING ABOUT A
CHANGE, DEPENDING UPON THE PARTICULAR CIRCUMSTANCES.  THE
MILITARIZATION MAY BE A QUALIFIED ONE; THE EMPLOYER MAY RETAIN POWER TO
FIX WAGES, HOURS AND OTHER CONDITIONS OF WORK; THE NEED AND
DESIRABILITY FOR COLLECTIVE ACTION ON THE PART OF THE GUARDS MAY EXIST
AS TO THE MATTERS OVER WHICH THE EMPLOYER RETAINS CONTROL; AND A
RECOGNITION OF THE STATUTORY RIGHTS OF THE GUARDS MAY BE ENTIRELY
CONSISTENT WITH THEIR MILITARY OBLIGATIONS.  IF THAT IS THE CASE, THE
GUARDS REMAIN EMPLOYEES FOR PURPOSES OF THE ACT.  BUT IF THE
MILITARIZATION IS SUCH AS TO TRANSFER TO THE ARMY ALL THE MATTERS OVER
WHICH THE EMPLOYER WOULD NORMALLY HAVE CONTROL, MATTERS WHICH WOULD
FORM THE BASIS FOR COLLECTIVE BARGAINING AS CONTEMPLATED BY THE ACT,
THE GUARDS MAY LOSE THEIR STATUS AS PRIVATE EMPLOYEES WITHIN THE
PURVIEW OF THE STATUTE.    THE BOARD'S DETERMINATION THAT THE
MILITARIZATION OF THE GUARDS IN RESPONDENT'S PLANTS WAS OF A TYPE THAT
DID NOT ALTER THEIR STATUS AS EMPLOYEES UNDER THE ACT MUST THEREFORE BE
TESTED BY THE APPLICABLE WAR DEPARTMENT REGULATIONS AND BY THE EVIDENCE
INTRODUCED AT THE HEARING BEFORE THE BOARD.  IF SUCH A RESULT IS
CONSISTENT WITH THE REGULATIONS AND HAS A REASONABLE BASIS IN THE OTHER
EVIDENCE, THE BOARD'S ORDER MUST BE SUSTAINED. 

THE PLANT GUARDS IN THIS CASE WERE ENROLLED AS CIVILIAN AUXILIARIES
TO THE MILITARY POLICE UNDER WAR DEPARTMENT REGULATIONS ISSUED PURSUANT
TO EXECUTIVE ORDER NO. 8972, DATED DECEMBER 12, 1941.  THAT ORDER
AUTHORIZED THE SECRETARY OF WAR TO ESTABLISH AND MAINTAIN MILITARY
GUARDS AND PATROLS, AND TO TAKE OTHER APPROPRIATE MEASURES, TO PROTECT
CERTAIN STRATEGIC PREMISES, MATERIALS AND UTILITIES FROM INJURY AND
DESTRUCTION.  THE SECRETARY OF WAR ACCORDINGLY DIRECTED THE MILITARY
ORGANIZATION OF PLANT GUARD FORCES AS AUXILIARY MILITARY POLICE AT
PLANTS IMPORTANT TO THE PROSECUTION OF THE WAR, THE DIRECTIVE TO THAT
EFFECT BEING ISSUED BY THE ADJUTANT GENERAL ON JULY 2, 1942. 
SUPPLEMENTARY REGULATIONS WERE CONTAINED IN CIRCULAR NO. 15, ISSUED ON
MARCH 17, 1943, BY HEADQUARTERS, ARMY SERVICE FORCES.  FN2 

AS STATED BY THESE REGULATIONS, THE PURPOSE OF THE MILITARY
ORGANIZATION OF THE PLANT GUARDS WAS "TO INCREASE THE AUTHORITY,
EFFICIENCY, AND RESPONSIBILITY OF GUARD FORCES AT PLANTS IMPORTANT TO
THE PROSECUTION OF THE WAR, AND THROUGH MILITARY TRAINING TO PROVIDE
AUXILIARY FORCES THROUGHOUT THE UNITED STATES TO SUPPLEMENT THE ARMY IN
WARTIME EMERGENCY SITUATIONS."  FN3  IT WAS MADE CLEAR, HOWEVER, THAT
PLANT MANAGEMENTS WERE NOT RELIEVED OF THEIR RESPONSIBILITY "FOR
PROVIDING ADEQUATE PROTECTION AT ALL TIMES AGAINST ALL HAZARDS."  FN4
IN OTHER WORDS, EMPLOYERS WHO WISHED TO OBTAIN GOVERNMENT CONTRACTS FOR
THE PRODUCTION OF WAR MATERIALS WERE REQUIRED TO PROVIDE "ADEQUATE
PROTECTION" FOR THEIR PLANTS WHERE THE MATERIAL WAS TO BE PRODUCED; IF
THE EXISTING PLANT PROTECTION FORCES WERE INADEQUATE, ADDITIONAL GUARDS
WERE TO BE RECRUITED BY THE EMPLOYERS.  BUT ALL THE ORIGINAL AND
ADDITIONAL GUARDS WERE TO BE ENROLLED AS CIVILIAN AUXILIARIES TO THE
MILITARY POLICE. 

THE MILITARY AUTHORITIES RESERVED THE RIGHT TO VETO THE HIRING OR
FIRING OF ANY PLANT GUARD WHERE SUCH ACTION BY THE EMPLOYER MIGHT
IMPAIR THE EFFICIENCY OF THE GUARD FORCE.  FN5  AND THE MILITARY PLANT
GUARD OFFICERS WERE AUTHORIZED TO TAKE APPROPRIATE ACTION "THROUGH THE
PLANT MANAGEMENT" TO CORRECT CONDITIONS WHICH MIGHT RESULT IN
"DEFECTIVE OR INADEQUATE PERFORMANCE BY THE GUARD FORCES OF ITS
ORDINARY PROTECTIVE DUTIES."  FN6 

THE FUNCTIONS OF THESE CIVILIAN AUXILIARIES TO THE MILITARY POLICE
WERE STATED TO BE TWOFOLD: "(1) TO PROVIDE INTERNAL AND EXTERNAL
PROTECTION OF THE PLANT AGAINST SABOTAGE, ESPIONAGE, AND NATURAL
HAZARDS.  (2) TO SERVE WITH THE ARMY IN PROVIDING PROTECTION TO THE
PLANT AND ITS ENVIRONS IN EMERGENCY SITUATIONS."  FN7  THEY WERE
SUBJECT TO CALL FOR MILITARY SERVICE EVEN WHERE EMERGENCIES AROSE AT
PLACES OTHER THAN THE PLANTS WHERE THEY NORMALLY WORKED.  TO THESE
ENDS, MILITARY PLANT GUARD OFFICERS WERE AUTHORIZED TO EXERCISE DIRECT
CONTROL OVER THE GUARD FORCES "ONLY IN MATTERS RELATING TO MILITARY
INSTRUCTION AND DUTIES AS AUXILIARY MILITARY POLICE."  FN8 BUT SUCH
ORDERS "WILL BE ISSUED ONLY AFTER CONSULTATION WITH AND, IF POSSIBLE,
CONCURRENCE BY THE PLANT MANAGEMENT.  ...  CONTROL, THEREFORE, WILL BE
EXERCISED AS HERETOFORE THROUGH THE PLANT MANAGEMENT EXCEPT AT DRILL
AND EXCEPT IN EMERGENCY SITUATIONS.  ALTHOUGH THE PLANT GUARD OFFICERS
WILL BE IN COMMAND AT ALL TIMES, THEY WILL NOT SUPPLANT THE CIVILIAN
GUARD OFFICERS, AND UNLESS EXPEDIENCY DEMANDS OTHERWISE WILL EXERCISE
THEIR AUTHORITY THROUGH THE CHAIN OF COMMAND ESTABLISHED BY THE PLANT
MANAGEMENT."  FN9  THE REGULATIONS ALSO PROVIDED THAT THE MILITARY
DRILL OF THE GUARD FORCES SHOULD NOT EXCEED ONE HOUR PER WEEK "EXCEPT
WITH THE APPROVAL OF THE PLANT MANAGEMENT."  FN10 

AS TO THE EMPLOYER'S RELATIONS WITH THE GUARD FORCE, THE REGULATIONS
WERE EXPLICIT IN RECOGNIZING THAT THOSE RELATIONS REMAINED ESSENTIALLY
THE SAME AS IF THERE WERE NO MILITARIZATION.  ACCORDING TO CIRCULAR NO.
15:  "BASICALLY, THE MILITARIZATION OF PLANT GUARD FORCES DOES NOT
CHANGE THE EXISTING SYSTEMS OF HIRING, COMPENSATION, AND DISMISSAL; ALL
REMAIN PRIMARILY A MATTER BETWEEN THE GUARDS AND THE PLANT
MANAGEMENTS.  GUARDS IN THE EMPLOY OF A PRIVATE EMPLOYER MAY, AS
HERETOFORE, BE DISMISSED BY THAT EMPLOYER."  FN11  A VETO POWER OVER
EMPLOYMENT AND DISMISSAL, OF COURSE, WAS RETAINED BY THE MILITARY.  IT
WAS FURTHER PROVIDED:  "THE STATUS OF THE EMPLOYER IN RESPECT TO THE
EMPLOYEE BENEFITS FOR THE GUARD FORCE IS NOT CHANGED.  FOR EXAMPLE,
SOCIAL SECURITY, WORKMEN'S COMPENSATION, AND EMPLOYER'S LIABILITY
PROVISIONS REMAIN UNAFFECTED."  FN12  AND THE EMPLOYER WAS EXPECTED TO
TRAIN THE GUARD FORCES IN THEIR ORDINARY PROTECTIVE DUTIES AND WAS
REQUIRED TO FURNISH THEM WITH UNIFORMS AND WEAPONS.  FN13 

THE RIGHT OF THE PLANT GUARDS TO BARGAIN COLLECTIVELY WAS RECOGNIZED
BY CIRCULAR NO. 15, PARAGRAPH 6H (2) OF WHICH PROVIDED:  "AUXILIARY
MILITARY POLICE ARE PERMITTED TO BARGAIN COLLECTIVELY, BUT NO SUCH
ACTIVITY WILL BE TOLERATED WHICH WILL INTERFERE WITH THEIR OBLIGATIONS
AS MEMBERS OF THE AUXILIARY MILITARY POLICE.  IN VIEW OF RECENT
DECISIONS BY THE NATIONAL LABOR RELATIONS BOARD (SEE IN RE LORD MFG.
CO. & UNITED RUBBER WORKERS OF AMERICA, CIO, CASE NO. R-4826, FEBRUARY
1943)(LORD MANUFACTURING CO., 47 N.L.R.B. 1032), THE AUXILIARY MILITARY
POLICE SHOULD BE REPRESENTED IN COLLECTIVE BARGAINING WITH THE
MANAGEMENT BY A BARGAINING UNIT OTHER THAN THAT COMPOSED OF THE
PRODUCTION AND MAINTENANCE WORKERS, ALTHOUGH BOTH BARGAINING UNITS MAY
BE AFFILIATED WITH THE SAME LABOR ORGANIZATION.  WHERE THE GUARDS ARE
NOT NOW INCLUDED IN THE SAME BARGAINING UNIT, THIS IS MANDATORY; WHERE
THE GUARDS ARE INCLUDED IN SUCH UNIT, SERIOUS CONSIDERATION WILL BE
GIVEN TO EFFECT A CHANGE TO CONFORM TO THE FOREGOING POLICIES." 
PROVISION WAS ALSO MADE THAT COLLECTIVE BARGAINING AGREEMENTS COVERING
PLANT GUARDS WHO WERE CIVILIAN AUXILIARIES SHOULD INCLUDE A CLAUSE
RECOGNIZING THAT NOTHING IN THE COLLECTIVE BARGAINING RELATIONSHIP
SHOULD INTERFERE WITH THE DUTIES IMPOSED UPON THE GUARDS AS AUXILIARY
MILITARY POLICE.  FN14 

THE GUARDS WERE REQUIRED TO SIGN AGREEMENTS WITH THE UNITED STATES. 
FN15  EACH AGREEMENT STATED THAT THE INDIVIDUAL, WHO HAD BEEN OR WAS
ABOUT TO BE EMPLOYED BY THE PARTICULAR COMPANY AS A GUARD AT ITS PLANT,
AGREED THAT HE WOULD SUPPORT AND DEFEND THE CONSTITUTION, BEAR TRUE
FAITH AND ALLEGIANCE TO THE CONSTITUTION, AND FAITHFULLY DISCHARGE HIS
DUTIES AS A CIVILIAN AUXILIARY TO THE MILITARY POLICE.  HE ALSO
ACKNOWLEDGED IN THIS AGREEMENT THAT APPROPRIATE ARTICLES OF WAR HAD
BEEN READ AND EXPLAINED TO HIM AND THAT HE WAS SUBJECT TO MILITARY LAW
DURING HIS EMPLOYMENT.  THE APPLICABLE REGULATIONS THEN PROVIDED THAT
HE COULD BE COURT-MARTIALED WHERE NO OTHER EFFECTIVE FORM OF PUNISHMENT
WOULD BE EFFECTIVE.  BUT "UNLIKE THE COURT-MARTIAL PUNISHMENT OF A
PERSON IN MILITARY SERVICE, A COURT MARTIAL CANNOT PUNISH A MEMBER OF
THE AUXILIARY MILITARY POLICE BY REDUCTION IN MILITARY GRADE OR BY
FORFEITURE OF PAY AND ALLOWANCES.  ANALOGOUS PUNISHMENTS MIGHT BE
IMPOSED, SUCH AS REDUCTION IN GRADE IN THE GUARD ORGANIZATION OR
TEMPORARY SUSPENSION FROM DUTY.  A FINE, AS DISTINGUISHED FROM
FORFEITURE, IS REGARDED AS AN APPROPRIATE FORM OF PUNISHMENT."  FN16
IN ALL OTHER RESPECTS, THE GUARDS REMAINED SUBJECT TO THE CIVIL
COURTS. 

THE EVIDENCE AND TESTIMONY SUBMITTED TO THE BOARD CONFIRMED THE FACT
THAT THE PLANT GUARDS IN RESPONDENT'S TWO PLANTS WERE MILITARIZED IN
ACCORDANCE WITH THE FOREGOING REGULATIONS.  THE GUARDS AT EACH PLANT
WERE UNDER THE DIRECT SUPERVISION OF A CHIEF GUARD AND SEVERAL
LIEUTENANTS - ALL OF WHOM WERE CIVILIANS RECRUITED BY THE RESPONDENT
LIKE THE RANK-AND-FILE GUARDS.  THE MILITARY SUPERIOR OF THE CHIEF
GUARDS WAS THE DISTRICT PLANT GUARD OFFICER STATIONED AT THE CONTINUOUS
SECURITY DISTRICT OFFICE OF THE WAR DEPARTMENT, CINCINNATI, OHIO, AN
OFFICER WHO ALSO HAD CHARGE OF GUARD FORCES AT OTHER PLANTS IN THE
DISTRICT.  A GENERAL DIRECTIVE ISSUED BY THIS OFFICE REPEATED MANY OF
THE PROVISIONS OF CIRCULAR NO. 15.  FN17  IT ALSO PROVIDED THAT ORDERS
AND REGULATIONS FOR THE AUXILIARY MILITARY POLICE WOULD BE ISSUED IN
THE NAME OF THE CHIEF OF THE DISTRICT "AFTER PLANT MANAGEMENT HAS
INDICATED ITS CONCURRENCE BY SIGNING THE GUARD ORDER IN THE LOWER LEFT
HAND CORNER."  BUT THE ONLY GUARD ORDERS RECEIVED BY THE CHIEF GUARDS
AT RESPONDENT'S PLANTS WERE THREE GENERAL ONES SIGNED BY THE DISTRICT
PLANT GUARD OFFICER, ORDERS THAT WERE APPLICABLE TO ALL MILITARIZED
GUARDS IN THE DISTRICT.  ALL THE SPECIFIC ORDERS THAT WERE EVER ISSUED
EMANATED FROM THE CHIEF GUARDS.  ABOUT THE ONLY DIRECT CONTACT BETWEEN
THE MILITARY AUTHORITIES AND THESE GUARDS OCCURRED DURING THE WEEKLY
DRILL PERIOD. 

RESPONDENT RECRUITED THE NECESSARY ADDITIONAL GUARDS THROUGH ITS
ORDINARY EMPLOYMENT CHANNELS AND IT HAD THE POWER TO INITIATE
DISMISSALS FROM THE FORCE.  SUCH ACTIONS, HOWEVER, WERE SUBJECT TO THE
APPROVAL OF THE MILITARY.  RESPONDENT AT ALL TIMES CARRIED THE GUARDS
ON ITS REGULAR PAY ROLLS, DETERMINED THEIR RATE OF COMPENSATION AND
PAID THEIR WAGES AFTER MAKING APPROPRIATE DEDUCTIONS.  AND SINCE IT DID
NOT OPERATE ON A COST-PLUS BASIS, RESPONDENT ACTUALLY BORE THE COST OF
THE GUARDS' WAGES.  FN18  RESPONDENT DID NOT ATTEMPT TO GIVE ORDERS TO
THE GUARDS, MERELY MAKING SUGGESTIONS TO THE CHIEF GUARDS.  THE LATTER
WORKED IN CLOSE COOPERATION WITH RESPONDENT'S PERSONNEL MANAGER AND NO
FRICTION DEVELOPED.  RESPONDENT DELEGATED TO THE CHIEF GUARDS ITS POWER
TO DETERMINE THE GUARDS' WORKING HOURS AND THE PROMOTION POLICIES IN
REGARD TO THEM.  FINALLY, RESPONDENT MAINTAINED ITS LIABILITY AS TO THE
GUARDS ON MATTERS OF SOCIAL SECURITY AND WORKMEN'S COMPENSATION AND WAS
OBLIGED TO OBEY ALL MINIMUM WAGE AND MAXIMUM HOUR REQUIREMENTS. 

FROM THE FOREGOING, AN AMPLE BASIS IS EVIDENT TO SUPPORT THE BOARD'S
DETERMINATION THAT MILITARIZATION DID NOT DESTROY THE EMPLOYEE STATUS
OF THE GUARDS IN RESPONDENT'S PLANTS.  THE WAR DEPARTMENT REGULATIONS
AND THE ACTUAL PRACTICE IN THESE PLANTS WERE BASED UPON THE EXPLICIT
ASSUMPTION THAT THE GUARDS WERE THE PRIVATE EMPLOYEES OF RESPONDENT
RATHER THAN EMPLOYEES OR SOLDIERS OF THE UNITED STATES.  THE
REGULATIONS MADE IT UNMISTAKABLE THAT THE NORMAL, PRIVATE EMPLOYER
EMPLOYEE RELATIONSHIP WAS TO REMAIN SUBSTANTIALLY INTACT.  ESPECIALLY
CLEAR WAS THE FACT THAT THE RIGHT OF THE GUARDS TO JOIN UNIONS AND TO
BARGAIN COLLECTIVELY WAS TO BE RESPECTED.  THE MILITARY AUTHORITIES
TOOK OVER FROM RESPONDENT ONLY THOSE ATTRIBUTES OF CONTROL WHICH WERE
NECESSARY TO EFFECTUATE THE RATHER LIMITED MILITARY PROGRAM, MANY
ASPECTS OF THAT TRANSFERRED POWER BEING EXERCISABLE BY THE ARMY ONLY IN
THE GRAVEST EMERGENCIES. 

WE CANNOT SAY THAT THE BOARD WAS WITHOUT WARRANT IN LAW OR IN FACT IN
CONCLUDING THAT RESPONDENT RETAINED "A SUFFICIENT RESIDUAL MEASURE OF
CONTROL OVER THE TERMS AND CONDITIONS OF EMPLOYMENT OF THE GUARDS" SO
THAT THEY MIGHT FAIRLY BE DESCRIBED AS EMPLOYEES OF RESPONDENT.  FN19
THE MOST IMPORTANT INCIDENTS OF THE EMPLOYER-EMPLOYEES RELATIONSHIP -
WAGES, HOURS AND PROMOTION - REMAINED MATTERS TO BE DETERMINED BY
RESPONDENT RATHER THAN BY THE ARMY.  RESPONDENT COULD SETTLE THOSE
VITAL MATTERS UNILATERALLY OR BY AGREEMENT WITH THE GUARDS.  AND THE
GUARDS WERE FREE TO NEGOTIATE AND BARGAIN INDIVIDUALLY OR COLLECTIVELY
ON THESE ITEMS.  IT IS PRECISELY SUCH A SITUATION TO WHICH THE NATIONAL
LABOR RELATIONS ACT IS APPLICABLE.  IT IS A SITUATION WHERE COLLECTIVE
BARGAINING MAY BE APPROPRIATE AND WHERE STATUTORY OBJECTIVES MAY BE
ACHIEVED DESPITE THE LIMITATIONS IMPOSED BY MILITARIZATION.  UNDER SUCH
CIRCUMSTANCES, THE BOARD MAY PROPERLY FIND THAT AN EMPLOYEE STATUS
EXISTS FOR PURPOSES OF THE ACT. 

IN THIS SETTING, IT MATTERS NOT THAT RESPONDENT WAS DEPRIVED OF SOME
OF THE USUAL POWERS OF AN EMPLOYER, SUCH AS THE ABSOLUTE POWER TO HIRE
AND FIRE THE GUARDS AND THE ABSOLUTE POWER TO CONTROL THEIR PHYSICAL
ACTIVITIES IN THE PERFORMANCE OF THEIR SERVICE.  THOSE ARE RELEVANT BUT
NOT EXCLUSIVE INDICIA OF AN EMPLOYER-EMPLOYEE RELATIONSHIP UNDER THIS
STATUTE.  AS WE HAVE SEEN, JUDGMENT AS TO THE EXISTENCE OF SUCH A
RELATIONSHIP FOR PURPOSES OF THIS ACT MUST BE MADE WITH MORE THAN THE
COMMON LAW CONCEPTS IN MIND.  THAT RELATIONSHIP MAY SPRING AS READILY
FROM THE POWER TO DETERMINE THE WAGES AND HOURS OF ANOTHER, COUPLED
WITH THE OBLIGATION TO BEAR THE FINANCIAL BURDEN OF THOSE WAGES AND THE
RECEIPT OF THE BENEFITS OF THE HOURS WORKED, AS FROM THE ABSOLUTE POWER
TO HIRE AND FIRE OR THE POWER TO CONTROL ALL THE ACTIVITIES OF THE
WORKER.  IN OTHER WORDS, WHERE THE CONDITIONS OF THE RELATION ARE SUCH
THAT THE PROCESS OF COLLECTIVE BARGAINING MAY APPROPRIATELY BE UTILIZED
AS CONTEMPLATED BY THE ACT, THE NECESSARY RELATIONSHIP MAY BE FOUND TO
BE PRESENT.  LABOR BOARD V. HEARST PUBLICATIONS, SUPRA, 129. 

THE BOARD'S DETERMINATION THAT THERE WAS A RELATIONSHIP IN THIS CASE
DESERVING OF STATUTORY PROTECTION DOES NOT REFLECT AN ISOLATED OR
CARELESS RECONCILIATION OF THE RIGHTS GUARANTEED BY THE ACT WITH THE
IMPORTANT WARTIME DUTIES OF PLANT PROTECTION EMPLOYEES.  IN THE COURSE
OF ITS ADMINISTRATION OF THE ACT DURING THE WAR, THE BOARD WAS FACED
WITH THIS PROBLEM MANY TIMES.  FN20 IT WAS WELL ACQUAINTED WITH THE
IMPORTANT AND COMPLEX CONSIDERATIONS INHERENT IN THE SITUATION.  THE
RESPONSIBILITY OF REPRESENTING THE PUBLIC INTEREST IN SUCH MATTERS AND
OF REACHING A JUDGMENT AFTER GIVING DUE WEIGHT TO ALL THE RELEVANT
FACTORS LAY PRIMARILY WITH THE BOARD.  SEE SOUTHERN STEAMSHIP CO. V.
LABOR BOARD, 316 U.S. 31, 47.  IN THE ABSENCE OF SOME COMPELLING
EVIDENCE THAT THE BOARD HAS FAILED TO MEASURE UP TO ITS RESPONSIBILITY,
COURTS SHOULD BE RELUCTANT TO OVERTURN THE CONSIDERED JUDGMENT OF THE
BOARD AND TO SUBSTITUTE THEIR OWN IDEAS OF THE PUBLIC INTEREST.  WE
FIND NO SUCH EVIDENCE IN THIS CASE.    HERE WE HAVE THE BOARD'S
CONSIDERED AND CONSISTENT JUDGMENT THAT MILITARIZED PLANT GUARDS MAY
SAFELY BE PERMITTED TO JOIN UNIONS AND BARGAIN COLLECTIVELY AND THAT
THEIR MILITARY DUTIES AND OBLIGATIONS DO NOT SUFFER THEREBY.  IN
AGREEMENT WITH THAT VIEWPOINT HAS BEEN THE WAR DEPARTMENT, THE AGENCY
MOST DIRECTLY CONCERNED WITH THE MILITARY ASPECTS OF THE PROBLEM.  ITS
REGULATIONS AND DIRECTIVES HAVE CLEARLY ACKNOWLEDGED THE FEASIBILITY OF
RECOGNIZING COLLECTIVE BARGAINING RIGHTS OF THESE GUARDS DURING
WARTIME, PROVIDED ONLY THAT NO ENCROACHMENT IS MADE UPON MILITARY
NECESSITIES.  THIS POLICY OF THE BOARD, MOREOVER, HAS BEEN CONFIRMED BY
EXPERIENCE.  THE BOARD STATES THAT IT HAS CERTIFIED BARGAINING
REPRESENTATIVES FOR UNITS OF MILITARIZED GUARDS IN MORE THAN 105 CASES,
IN NONE OF WHICH HAS ANY DANGER TO THE PUBLIC INTEREST OR TO THE WAR
EFFORT RESULTED. 

UNDER SUCH CIRCUMSTANCES, IT WOULD BE FOLLY ON OUR PART TO DISREGARD
OR TO UPSET THE POLICY THE BOARD HAS APPLIED IN THIS CASE.  FN21  SINCE
THE BOARD'S ORDER IS IN ACCORD WITH THE LAW AND HAS SUBSTANTIAL ROOTS
IN THE EVIDENCE, IT SHOULD HAVE BEEN ENFORCED BY THE CIRCUIT COURT OF
APPEALS.  RESPONDENT'S OBJECTIONS TO THE LANGUAGE AND SCOPE OF THE
ORDER ARE EITHER WITHOUT MERIT OR HAVE BEEN REMOVED BY THE
DEMILITARIZATION OF THE GUARDS.  AND ANY ISSUES CONCERNING THE
SUBSEQUENT DEPUTIZATION OF THE GUARDS AS POLICEMEN ARE ANSWERED BY OUR
DECISION IN LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., POST, P. 416. 
THE JUDGMENT BELOW IS ACCORDINGLY REVERSED. 

FN1  LOCAL 1683 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS,
DISTRICT 90.  THIS UNION DID NOT REPRESENT ANY OF THE MAINTENANCE OR
PRODUCTION EMPLOYEES IN RESPONDENT'S PLANTS, BUT IT DID ADMIT TO
MEMBERSHIP PLANT PROTECTION EMPLOYEES OF OTHER EMPLOYERS AS WELL AS
THOSE OF RESPONDENT. 

FN2 CIRCULAR NO. 15 WAS NOT INTRODUCED INTO EVIDENCE IN THE
PROCEEDING BEFORE THE BOARD.  BUT IT WAS ISSUED BY MILITARY AUTHORITIES
PURSUANT TO THE POWER VESTED IN THE SECRETARY OF WAR BY EXECUTIVE ORDER
NO. 8972 AND WE MAY TAKE JUDICIAL NOTICE OF IT.  STANDARD OIL CO. V.
JOHNSON, 316 U.S. 481, 483-484. 

FN3  CIRCULAR NO. 15, PAR. 1A. 

FN4  ID. PAR. 1B. 

FN5  ID. PAR. 6B (2). 

FN6  ID. PAR. 1B. 

FN7  ID. PAR. 2A. 

FN8  ID. PAR. 5A (2). 

FN9  ID. PARS. 5C (2) AND 6A (1). 

FN10  ID. PAR. 7G (1). 

FN11  ID. PAR. 6B (1). 

FN12  ID. PAR. 6F. 

FN13  THE GUARDS WERE REQUIRED TO SALUTE ARMY OFFICERS AND HAD THE
RIGHT TO ARREST ANYONE IN THE PLANTS.  THEY CARRIED IDENTIFICATION
CARDS ISSUED BY THE WAR DEPARTMENT AND WORE ARM BANDS ON WHICH APPEARED
THE WORDS "AUXILIARY MILITARY POLICE."  ID. PAR. 7. 

FN14  ID. PAR. 6H (1). 

FN15  IF A GUARD REFUSED TO SIGN THIS AGREEMENT, HE MIGHT BE, BUT
NEED NOT BE, TEMPORARILY RETAINED WITH THE UNDERSTANDING THAT HE WOULD
BE DISMISSED AS SOON AS HE COULD BE REPLACED, AND IN ANY EVENT WITHIN A
REASONABLE TIME.  ID. PAR. 5B (1). 

FN16  ID. PAR. 8D. 

FN17  THIS DIRECTIVE, HOWEVER, OMITTED PAR. 6H (2) OF CIRCULAR NO.
15, DEALING WITH THE RIGHT OF GUARDS TO BARGAIN COLLECTIVELY. 

FN18  RESPONDENT ARGUES THAT IT WAS FORCED TO PAY THE GUARDS BECAUSE
OF THE WAR DEPARTMENT'S ACTION IN REQUIRING ADDITIONAL PLANT
PROTECTION.  BUT RESPONDENT WAS NOT FORCED TO ENTER INTO ITS WAR
PRODUCTION CONTRACTS WITH THE GOVERNMENT.  IT DID SO VOLUNTARILY AND
WITH THE UNDERSTANDING THAT IT WOULD COMPLY WITH ANY TERMS AND
CONDITIONS THE GOVERNMENT SAW FIT TO IMPOSE.  ONE OF THESE CONDITIONS
WAS THAT RESPONDENT EXPAND ITS PEACETIME GUARD FORCE OF SIX MEN TO A
WARTIME COMPLEMENT OF SIXTY-FOUR.  SO FAR AS THESE ADDITIONAL GUARDS
BEING RESPONDENT'S EMPLOYEES IS CONCERNED, IT IS NO DIFFERENT FROM A
REQUIREMENT THAT RESPONDENT EMPLOY MORE CHEMISTS OR OTHER PRODUCTION
EXPERTS TO FACILITATE EXECUTION OF THE CONTRACTS. 

FN19  THE BOARD'S CONCLUSION IN THIS RESPECT IS CONFIRMED BY THE
RESULTS REACHED UNDER OTHER STATUTES.  MILITARIZED GUARDS HAVE BEEN
TREATED AS PRIVATE EMPLOYEES FOR PURPOSES OF THE FAIR LABOR STANDARDS
ACT.  WALLING V. LUM, 4 WH CASES 465.  AND THEY HAVE CONSISTENTLY BEEN
TREATED AS SUCH BY THE NATIONAL WAR LABOR BOARD.  DETROIT STEEL
PRODUCTS CO., 6 WAR LAB.  REP.  495; BREWSTER AERONAUTICAL CORP., 11
WAR LAB.  REP.  286, 15 WAR LAB.  REP.  239, 240-243; GREAT AMERICAN
INDUSTRIES, 11 WAR LAB.  REP.  287; YOUNGSTOWN SHEET & TUBE CO., 15 WAR
LAB.  REP.  500, 19 WAR LAB.  REP.  813; GENERAL MOTORS CORP., 18 WAR
LAB.  REP.  541.  AND SEE LABOR BOARD V. CARROLL, 120 F.2D 457. 

FN20  SEE, E.G., CHRYSLER CORPORATION, 44 N.L.R.B. 881; BUDD WHEEL
CO., 52 N.L.R.B. 666; DRAVO CORPORATION, 52 N.L.R.B. 322.  SEE ALSO
NATIONAL LABOR RELATIONS BOARD, SEVENTH ANNUAL REPORT (1943), P. 63;
EIGHTH ANNUAL REPORT (1944), P. 57. 

FN21  IN ADOPTING THE WAR LABOR DISPUTES ACT, 57 STAT. 163, CONGRESS
PROVIDED IN SEC. 7(A)(2) THAT ALL ACTIONS OF THE NATIONAL WAR LABOR
BOARD MUST CONFORM TO THE PROVISIONS OF THE NATIONAL LABOR RELATIONS
ACT - AN INDICATION THAT CONGRESS DEEMED THE PRESERVATION OF THE RIGHT
TO COLLECTIVE BARGAINING TO BE ESSENTIAL IN WAR INDUSTRIES. 

THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON
DISSENT SUBSTANTIALLY FOR THE REASONS SET FORTH IN THE OPINION OF THE
COURT BELOW, 155 F.2D 567. 
..END :






LABOR BOARD V. JONES & LAUGHLIN CO., 331 U.S. 416 


NO. 418.  ARGUED MARCH 7, 1947.  - DECIDED MAY 19, 1947.  - 154 F.2D
932, REVERSED. 


1.  IN THE CIRCUMSTANCES OF THIS CASE, THE MILITARIZATION OF CERTAIN
GUARDS EMPLOYED BY A PRIVATE PLANT ENGAGED IN WAR PRODUCTION DID NOT
PRECLUDE THE NATIONAL LABOR RELATIONS BOARD FROM GROUPING THEM IN A
SEPARATE UNIT FOR COLLECTIVE BARGAINING AND PERMITTING THEM TO CHOOSE
AS THEIR BARGAINING REPRESENTATIVE A UNION WHICH ALSO REPRESENTED
PRODUCTION AND MAINTENANCE EMPLOYEES.  PP. 422-427. 

2.  THE DETERMINATION OF THE NATIONAL LABOR RELATIONS BOARD THAT, IN
THE CIRCUMSTANCES OF THIS CASE, CERTAIN GUARDS AT A PRIVATE PLANT OF
THE RESPONDENT ENGAGED IN WAR PRODUCTION, THOUGH EMPLOYED IN ACCORDANCE
WITH A REQUIREMENT OF THE WAR DEPARTMENT AND ENROLLED AS CIVILIAN
AUXILIARIES TO THE MILITARY POLICE OF THE UNITED STATES ARMY SUBJECT TO
ARMY REGULATIONS, WERE "EMPLOYEES" OF RESPONDENT WITHIN THE MEANING OF
SEC. 2(3) OF THE NATIONAL LABOR RELATIONS ACT WAS JUSTIFIED BY THE
EVIDENCE AND THE LAW.  LABOR BOARD V. ATKINS & CO., ANTE, P. 398.  P.
422. 

3.  A PROCEEDING UNDER THE NATIONAL LABOR RELATIONS ACT TO ENFORCE A
BOARD ORDER REQUIRING AN EMPLOYER TO BARGAIN WITH THE REPRESENTATIVE OF
MILITARIZED PLANT GUARDS, HELD NOT RENDERED MOOT BY THEIR SUBSEQUENT
DEMILITARIZATION, IN AND OF ITSELF.  LABOR BOARD V. ATKINS & CO., ANTE,
P. 398.  PP. 421-422. 

4.  THE PROVISION OF SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT
THAT "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," REFERS TO OBJECTIONS WHICH MIGHT HAVE
BEEN BUT WERE NOT RAISED IN THE ORIGINAL PROCEEDING BEFORE THE BOARD. 
P. 427. 

5. THE REVIEWING COURT HAS POWER TO CONSIDER AN ISSUE WHICH HAS COME
INTO EXISTENCE SINCE THE PROCEEDING WAS BEFORE THE BOARD.  PP. 427
428. 

6.  WHEN CIRCUMSTANCES ARISE AFTER THE BOARD'S ORDER HAS BEEN ISSUED
WHICH MAY AFFECT THE PROPRIETY OF ENFORCEMENT OF THE ORDER, THE
REVIEWING COURT HAS DISCRETION TO DECIDE THE MATTER ITSELF OR TO REMAND
IT TO THE BOARD FOR FURTHER CONSIDERATION.  P. 428. 

7.  IN THE CIRCUMSTANCES OF THIS CASE, IT IS UNNECESSARY TO REMAND
THE CASE TO THE NATIONAL LABOR RELATIONS BOARD FOR CONSIDERATION OF THE
ISSUE AS TO THE STATUS OF PLANT GUARDS WHO WERE DEPUTIZED AS MUNICIPAL
POLICEMEN SUBSEQUENTLY TO THE ISSUANCE OF THE BOARD'S ORDER, THERE
BEING NOTHING IN THE INSTANT CASE WHICH WOULD MAKE INAPPLICABLE THE
BOARD'S KNOWN POLICY WITH RESPECT TO DEPUTIZED GUARDS.  P. 428. 

8.  THE FACTS AND LAW OF THIS CASE WOULD JUSTIFY A DETERMINATION BY
THE BOARD THAT THE GUARDS AT THE PRIVATE PLANT IN QUESTION WERE
"EMPLOYEES" WITHIN THE MEANING OF SEC. 2(3) OF THE NATIONAL LABOR
RELATIONS ACT, NOTWITHSTANDING THEIR DEPUTIZATION AS MUNICIPAL
POLICEMEN; AND THAT THEY WERE ENTITLED TO SELECT AS THEIR BARGAINING
AGENT A UNION WHICH ALSO REPRESENTED PRODUCTION AND MAINTENANCE
WORKERS.  PP. 429-431. 

NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 53 N.L.R.B. 1046,
ISSUED UNDER THE NATIONAL LABOR RELATIONS ACT, WAS DENIED ENFORCEMENT
BY THE CIRCUIT COURT OF APPEALS.  154 F.2D 932.  (A PREVIOUS JUDGMENT,
146 F.2D 718, HAD BEEN VACATED AND THE CASE REMANDED BY THIS COURT, 325
U.S. 838.)  THIS COURT GRANTED CERTIORARI.  329 U.S. 710.  REVERSED, P.
431. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

LIKE LABOR BOARD V. ATKINS & CO., ANTE, P. 398, THIS CASE INVOLVES
THE RIGHTS OF MILITARIZED PLANT GUARDS UNDER THE NATIONAL LABOR
RELATIONS ACT, 29 U.S.C. SEC. 151 ET SEQ. BUT CERTAIN PROBLEMS ARE
RAISED HERE WHICH ARE NOT PRESENT IN THE ATKINS CASE. 

RESPONDENT OWNS AND OPERATES SEVERAL LARGE STEEL MANUFACTURING WORKS
AND WAS ENGAGED IN THE PRODUCTION OF WAR MATERIALS DURING THE RECENT
WAR.  AT RESPONDENT'S OTIS WORKS AT CLEVELAND, OHIO, ABOUT 4,700
INDIVIDUALS ARE EMPLOYED.  PRODUCTION AND MAINTENANCE EMPLOYEES
CONSTITUTE THE GREAT BULK OF THESE WORKERS.  BUT THERE IS ALSO INCLUDED
IN THE TOTAL A GROUP OF GUARDS AND WATCHMEN, NUMBERING ABOUT SIXTY MEN
NORMALLY. 

A UNION AFFILIATED WITH THE UNITED STEELWORKERS OF AMERICA, C.I.O.,
HAS BEEN THE EXCLUSIVE BARGAINING AGENT FOR THE PRODUCTION AND
MAINTENANCE EMPLOYEES.  UNDER A CONTRACT MADE WITH RESPONDENT LATE IN
1942, THIS UNION DISCLAIMED ANY REPRESENTATION OF "FOREMEN OR ASSISTANT
FOREMEN IN CHARGE OF ANY CLASSES OF LABOR, WATCHMEN, SALARIED EMPLOYEES
AND NURSES."  ON MARCH 15, 1943, THIS UNION FILED A PETITION FOR
INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES PURSUANT TO SEC.
9(C) OF THE ACT, IN WHICH IT SOUGHT TO BE CERTIFIED AS THE COLLECTIVE
BARGAINING REPRESENTATIVE OF THE GUARD FORCE.  A HEARING WAS THEN
HELD.  RESPONDENT CLAIMED THAT A UNIT COMPOSED OF THESE GUARDS WAS
INAPPROPRIATE BECAUSE THEY "PERFORM CERTAIN ASSIGNED WORK THAT IS
STRICTLY REPRESENTATIVE OF MANAGEMENT."  RESPONDENT ALSO CLAIMED THAT
ANY ALLEGATION BY THE UNION THAT A UNIT INCLUDING WATCHMEN IS
APPROPRIATE WAS "A DIRECT CONTRAVENTION" OF THE 1942 CONTRACT.  AND IT
WAS FURTHER ALLEGED THAT ANY UNIONIZATION OF WATCHMEN OR GUARDS WAS
PARTICULARLY INAPPROPRIATE DURING A TIME OF WAR, THAT THEIR DUTIES "DO
NOT DIFFER GREATLY FROM THE DUTIES PERFORMED BY MEMBERS OF A CITY,
COUNTY OR STATE POLICE FORCE" AND THAT THESE GUARDS HAD BEEN SWORN IN
AS AUXILIARY MILITARY POLICE OF THE UNITED STATES ARMY. 

THE TESTIMONY AT THE HEARING SHOWED THAT THERE WERE CURRENTLY 72
PLANT PROTECTION EMPLOYEES.  OF THESE, 58 WERE PATROLMEN WHOSE SOLE
DUTY WAS TO PROTECT AND GUARD THE OTIS WORKS; THERE WERE 2 FIREMEN TO
MAINTAIN THE FIRE EQUIPMENT; 2 DUMP LABORERS WERE ASSIGNED TO WORK AT A
REFUSE DUMP WHILE WATCHING THAT SECTION OF THE PLANT; AND THERE WERE 8
LIEUTENANTS AND 2 FIRE CAPTAINS SUPERVISING THE OTHERS.  ALL OF THEM
WERE CARRIED ON RESPONDENT'S PAYROLL AND WERE UNDER RESPONDENT'S
CONTROL AS TO PAY, BENEFITS AND CONDITIONS OF EMPLOYMENT.  AND, AS
RESPONDENT HAD ALLEGED, THEY HAD BEEN SWORN IN AS CIVILIAN AUXILIARIES
TO THE MILITARY POLICE OF THE UNITED STATES ARMY, IN THE SAME MANNER
AND UNDER THE SAME CONDITIONS AS DETAILED IN THE ATKINS CASE. 

ON MAY 3, 1943, THE BOARD ISSUED ITS DECISION AND DIRECTION OF
ELECTION.  49 N.L.R.B. 390.  IT FOUND THAT "ALL PATROLMEN, WATCHMEN,
AND FIREMEN, INCLUDING DUMP LABORERS EMPLOYED BY THE COMPANY AT ITS
OTIS WORKS, BUT EXCLUDING LIEUTENANTS, CAPTAINS, AND SUPERVISORS"
CONSTITUTED AN APPROPRIATE UNIT AND THAT AN ELECTION SHOULD BE HELD BY
THE EMPLOYEES IN THIS UNIT TO DETERMINE IF THEY DESIRED TO BE
REPRESENTED BY THE STEELWORKERS UNION.  IT REJECTED ALL OF RESPONDENT'S
CONTENTIONS, POINTING OUT AMONG OTHER THINGS THAT THE UNION, WHILE
REPRESENTING PRODUCTION AND MAINTENANCE EMPLOYEES, INTENDED TO BARGAIN
FOR THE PLANT GUARDS AND WATCHMEN AS A SEPARATE UNIT. 

THE ELECTION RESULTED IN THE SELECTION OF THE STEELWORKERS UNION AS
THE BARGAINING REPRESENTATIVE OF THE UNIT IN QUESTION.  THE UNION WAS
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF THE UNIT, RESPONDENT
REFUSED TO BARGAIN WITH THE UNION AND THE BOARD ISSUED ITS COMPLAINT
BASED UPON THAT REFUSAL.  ON DECEMBER 2, 1943, THE BOARD REAFFIRMED THE
APPROPRIATENESS OF THE UNIT AND FOUND THAT RESPONDENT HAD COMMITTED
UNFAIR LABOR PRACTICES IN REFUSING TO BARGAIN.  THE USUAL ORDER WAS
ENTERED.  53 N.L.R.B. 1046. 

THE SIXTH CIRCUIT COURT OF APPEALS DENIED THE BOARD'S PETITION FOR A
DECREE ENFORCING ITS ORDER.  146 F.2D 718.  WHILE UPHOLDING THE BOARD'S
DETERMINATION THAT THE MILITARIZED GUARD FORCES WERE EMPLOYEES WITHIN
THE MEANING OF THE NATIONAL LABOR RELATIONS ACT, THE COURT FELT THAT
THE UNIT SELECTED FOR BARGAINING PURPOSES WAS INAPPROPRIATE AND
REFLECTED A DISREGARD BY THE BOARD OF THE NATIONAL WELFARE.  IN THE
EYES OF THAT COURT, THE BOARD'S FATAL ERROR WAS ITS AUTHORIZING THE
MILITARIZED GUARDS TO JOIN THE SAME UNION WHICH REPRESENTED THE
PRODUCTION AND MAINTENANCE EMPLOYEES BECAUSE "WHEN THEY WERE INDUCTED
INTO THE UNIONS AND BECAME SUBJECT TO THEIR ORDERS, RULES AND
DECISIONS, THE PLANT PROTECTION EMPLOYEES ASSUMED OBLIGATIONS TO THE
UNIONS AND THEIR FELLOW WORKERS, WHICH MIGHT WELL IN GIVEN
CIRCUMSTANCES BRING THEM IN CONFLICT WITH THEIR OBLIGATION TO THEIR
EMPLOYERS, AND WITH THEIR PARAMOUNT DUTY AS MILITARIZED POLICE OF THE
UNITED STATES GOVERNMENT."  146 F.2D AT 722. 

THE BOARD FILED A PETITION IN THIS COURT FOR A WRIT OF CERTIORARI. 
AS IN THE ATKINS CASE, THE BOARD POINTED OUT THAT THE PLANT PROTECTION
EMPLOYEES HAD BEEN DEMILITARIZED AT A DATE (MAY 29, 1944) SUBSEQUENT TO
THE REFUSALS TO BARGAIN, BUT URGED THAT THIS FACT DID NOT MAKE THE CASE
MOOT.  WE GRANTED THE WRIT OF CERTIORARI AT THE SAME TIME AS WE GRANTED
THE WRIT IN THE ATKINS CASE, VACATED THE JUDGMENT BELOW AND REMANDED
THE CAUSE TO THE CIRCUIT COURT OF APPEALS "FOR FURTHER CONSIDERATION OF
THE ALLEGED CHANGED CIRCUMSTANCES WITH RESPECT TO THE DEMILITARIZATION
OF THE EMPLOYEES INVOLVED, AND THE EFFECT THEREOF ON THE BOARD'S
ORDERS."  325 U.S. 838. 

THE BOARD AND THE RESPONDENT THEN ENTERED INTO A STIPULATION RELATIVE
TO THE DATES AND CIRCUMSTANCES OF THE DEMILITARIZATION OF THE GUARDS. 
FROM THIS STIPULATION IT APPEARED THAT THE QUALIFICATIONS, STRENGTH,
FUNCTIONS AND DUTIES OF THE GUARDS CONTINUED TO BE THE SAME AFTER
DEMILITARIZATION AS BEFORE.  ALSO INCLUDED IN THE STIPULATION WERE
FACTS SHOWING THAT BOTH BEFORE AND AFTER THE PERIOD OF MILITARIZATION,
AUGUST 5, 1942, TO MAY 29, 1944, THE GUARDS WERE COMMISSIONED, SWORN
AND BONDED AS PRIVATE POLICEMEN OF THE CITY OF CLEVELAND AND EXERCISED
"THE LEGAL POWERS OF PEACE OFFICERS IN THEIR WORK AS PLANT GUARDS."  IT
WAS FURTHER STIPULATED THAT BECAUSE OF "THE MAGNITUDE AND OTHER
CHARACTERISTICS OF THE OTIS WORKS, ITS POLICE PROTECTION BY THE
ORDINARY POLICE OF THE CITY OF CLEVELAND IS NOT PRACTICAL OR FEASIBLE;
AND, AS A RESULT, FOR A GREAT MANY YEARS, THE POLICE PROTECTION OF THE
WORKS AND THE ENFORCEMENT OF LAW, PEACE AND GOOD ORDER THEREIN HAS BEEN
DELEGATED WHOLLY TO THE PLANT GUARD FORCE.  FOR SIMILAR REASONS, THE
WORK OF PREVENTING AND EXTINGUISHING FIRES HAS BEEN IN LARGE PART THE
RESPONSIBILITY OF THE GUARD FORCE, RATHER THAN THAT OF THE MUNICIPAL
FIRE DEPARTMENT." 

THE BOARD FILED A MOTION IN THE CIRCUIT COURT OF APPEALS FOR A DECREE
ENFORCING ITS ORDER.  THAT COURT DENIED THE MOTION AND HELD THAT THE
FACTS CONCERNING BOTH THE DEMILITARIZATION AND THE DEPUTIZATION WERE TO
BE CONSIDERED AS THOUGH THEY HAD BEEN PRESENTED AT THE HEARING BEFORE
THE BOARD; ON THAT BASIS, THE COURT REAFFIRMED ITS BELIEF THAT THE
GUARDS WERE EMPLOYEES WITHIN THE MEANING OF THE ACT, BUT CONCLUDED THAT
IN VIEW OF THE "DRASTIC POLICE POWERS" EXERCISED BY THE GUARDS, IT WAS
"IMPROPER FOR THE BOARD TO PERMIT THEIR ORGANIZATION BY THE SAME UNION
WHICH REPRESENTS THE PRODUCTION EMPLOYEES."  154 F.2D 932, 934. 

OUR DECISION IN THE ATKINS CASE MAKES CLEAR THAT THE DEMILITARIZATION
OF THE GUARDS DID NOT RENDER THIS CASE MOOT.  THE ORDER WAS A
CONTINUING COMMAND WHICH MAY BE EFFECTUATED IN THE FUTURE.  BUT UNLESS
THE ORDER WAS VALID WHEN IT WAS ISSUED, THERE IS NO BASIS WHATEVER FOR
IT AND NO COURT CAN DECREE ITS ENFORCEMENT IN THE FUTURE.  HENCE ITS
VALIDITY MUST BE JUDGED AS OF THE TIME WHEN IT WAS ISSUED, A TIME WHEN
THE GUARDS WERE STILL MILITARIZED.  THIS IS NOT TO SAY, HOWEVER, THAT
EVENTS SUBSEQUENT TO DEMILITARIZATION ARE IRRELEVANT IN DECIDING
WHETHER THE ORDER SHOULD BE ENFORCED.  ALL THAT WE HOLD IS THAT
DEMILITARIZATION IN AND OF ITSELF IS NOT ENOUGH TO RENDER THE ORDER OR
THE CASE MOOT. 

THE ATKINS DECISION LIKEWISE DISPOSES OF ANY ISSUES RELATING TO THE
EFFECT OF MILITARIZATION UPON THE STATUS OF THE GUARDS AS EMPLOYEES
WITHIN THE MEANING OF SEC. 2(3) OF THE NATIONAL LABOR RELATIONS ACT. 
TO THAT EXTENT, THE BOARD'S ORDER HERE WAS PLAINLY VALID.  UNANSWERED
BY THE ATKINS DECISION, HOWEVER, IS THE QUESTION WHETHER THE
MILITARIZATION OF THE PLANT GUARDS PRECLUDED THE BOARD FROM GROUPING
THE GUARDS IN A SEPARATE UNIT AND PERMITTING THEM TO CHOOSE AS THEIR
BARGAINING REPRESENTATIVE A UNION WHICH ALSO REPRESENTED PRODUCTION AND
MAINTENANCE EMPLOYEES.  TO THAT ISSUE, WHICH IS THE PRIMARY ONE RAISED
BY THIS CASE, WE NOW TURN. 

THE BOARD, OF COURSE, HAS WIDE DISCRETION IN PERFORMING ITS STATUTORY
FUNCTION UNDER SEC. 9(B) OF DECIDING "THE UNIT APPROPRIATE FOR THE
PURPOSES OF COLLECTIVE BARGAINING  ...  "  PITTSBURGH PLATE GLASS CO.
V. LABOR BOARD, 313 U.S. 146.  IT LIKEWISE HAS DISCRETION TO PLACE
APPROPRIATE LIMITATIONS ON THE CHOICE OF BARGAINING REPRESENTATIVES
SHOULD IT FIND THAT PUBLIC OR STATUTORY POLICIES SO DICTATE.  ITS
DETERMINATIONS IN THESE RESPECTS ARE BINDING UPON REVIEWING COURTS IF
GROUNDED IN REASONABLENESS.  MAY STORES CO. V. LABOR BOARD, 326 U.S.
376, 380.  A PROPER DETERMINATION AS TO ANY OF THESE MATTERS, OF
COURSE, NECESSARILY IMPLIES THAT THE BOARD HAS GIVEN DUE CONSIDERATION
TO ALL THE RELEVANT FACTORS AND THAT IT HAS CORRELATED THE POLICIES OF
THE ACT WITH WHATEVER PUBLIC OR PRIVATE INTERESTS MAY ALLEGEDLY OR
ACTUALLY BE IN CONFLICT. 

THUS, IN DETERMINING THE PROPER UNIT FOR MILITARIZED GUARDS AND IN
DECIDING WHETHER THEY SHOULD BE PERMITTED TO CHOOSE THE SAME UNION THAT
REPRESENTS PRODUCTION AND MAINTENANCE EMPLOYEES, THE BOARD MUST BE
GUIDED NOT ALONE BY THE WISHES OF THE GUARDS OR THE UNION OR BY WHAT IS
APPROPRIATE IN THE CASE OF NON-MILITARIZED GUARDS.  IT MUST ALSO GIVE
DUE CONSIDERATION TO THE MILITARY DUTIES AND OBLIGATIONS OF THE GUARDS
AND THEIR POSSIBLE RELATIONSHIPS TO A UNION REPRESENTING OTHER
EMPLOYEES; IT MUST CONSIDER WHAT LIMITATIONS, IF ANY, ON THE NORMAL
FREEDOM TO CHOOSE WHATEVER REPRESENTATIVE THE GUARDS MAY DESIRE ARE
NECESSITATED BY THE WAR EFFORT. 

IT IS CLEAR THAT THE BOARD HAS GIVEN THESE MATTERS DUE
CONSIDERATION.  IT HAS NOT ACTED IN THIS CASE IN DISREGARD OF THE
NATIONAL WELFARE.  SANCTIONING THE CREATION OF A SEPARATE UNIT OF
RESPONDENT'S GUARDS AND PERMITTING THEM TO SELECT A UNION OF THEIR OWN
CHOOSING, A UNION WHICH HAPPENED TO BE THE REPRESENTATIVE OF THE
PRODUCTION AND MAINTENANCE EMPLOYEES, ARE INDICATIVE OF A CONSIDERED,
MATURE JUDGMENT ON THE BOARD'S PART.  THE PROBLEM HAS BEEN RAISED IN
MANY CASES BEFORE THE BOARD AND ITS CONCLUSION IS IN ACCORD WITH THAT
REACHED BY THE WAR DEPARTMENT. 

IN CHRYSLER CORP., 44 N.L.R.B. 881, DRAVO CORP., 52 N.L.R.B. 322, AND
ARMOUR AND CO., 63 N.L.R.B. 1200, THE BOARD HAS SPELLED OUT THE VARIOUS
CONSIDERATIONS THAT HAVE LED IT TO ADOPT THE POLICY APPLIED IN THIS
CASE.  THOSE CASES REVEAL THE BOARD'S BELIEF THAT FREEDOM TO CHOOSE A
BARGAINING AGENT INCLUDES THE RIGHT TO SELECT AN AGENT WHICH REPRESENTS
OTHER EMPLOYEES IN A DIFFERENT BARGAINING UNIT.  THIS PRINCIPLE MAY
SAFELY BE APPLIED TO MILITARIZED GUARDS, IN THE BOARD'S OPINION, SINCE
THE COLLECTIVE BARGAINING PROCESS IS FLEXIBLE ENOUGH TO ALLOW FOR THE
INCREASED RESPONSIBILITIES PLACED UPON THE MILITARIZED GUARDS.  AND THE
BOARD HAS CONCLUDED THAT THE REMEDY FOR INEFFICIENCY OR WILFUL
DISREGARD OR NEGLECT OF DUTY ON THE PART OF SUCH GUARDS LIES IN THE
POWER OF THE EMPLOYER TO DISCIPLINE OR DISCHARGE THEM AND IN THE POWER
OF THE MILITARY AUTHORITIES TO TAKE WHATEVER STEPS MAY BE NECESSARY TO
PROTECT THE PUBLIC INTEREST.  MOREOVER, THE BOARD HAS DISCOVERED NO
SERIOUS QUESTION AS TO ANY CONFLICT BETWEEN LOYALTIES TO THE ARMY AND
TO THE UNION, THE BOARD FINDING NO BASIS TO ASSUME THAT MEMBERSHIP IN A
UNION TENDS TO UNDERMINE THE PATRIOTISM OF MILITARIZED GUARDS OR THAT
LOYALTY TO THE UNITED STATES WOULD BE SECONDARY IN THEIR MINDS TO
LOYALTY TO THE UNION.  BUT ONE RESTRICTION IS PLACED UPON THE STATUTORY
FREEDOM OF THE MILITARIZED GUARDS.  THE BOARD INSISTS THAT THEY BE
PLACED IN SEPARATE BARGAINING UNITS SO THAT THEY MAY BE BETTER ABLE TO
FUNCTION WITHIN THE MILITARY SPHERE AND SO THAT THE MILITARY
AUTHORITIES MAY BE ABLE TO EXERCISE GREATER CONTROL OVER THEM. 

THIS POLICY OF THE BOARD COINCIDES WITH THAT EXPRESSED IN THE
REGULATIONS OF THE WAR DEPARTMENT.  AS WE POINTED OUT IN THE ATKINS
CASE, ANTE, P. 398, THE MILITARY AUTHORITIES HAVE GIVEN FULL SANCTION
TO COLLECTIVE BARGAINING ON THE PART OF MILITARIZED GUARDS, PROVIDED
ONLY THAT SUCH ACTION DOES NOT INTERFERE WITH THEIR MILITARY
OBLIGATIONS.  PARAGRAPH 6H (2) OF CIRCULAR NO. 15, ISSUED ON MARCH 17,
1943, BY HEADQUARTERS, ARMY SERVICE FORCES, ACKNOWLEDGES WITH APPROVAL
THE BOARD'S POLICY OF PERMITTING MILITARIZED GUARDS TO BE REPRESENTED
IN COLLECTIVE BARGAINING WITH THE MANAGEMENT BY A BARGAINING UNIT OTHER
THAN THAT COMPOSED OF THE PRODUCTION AND MAINTENANCE WORKERS, EVEN
THOUGH BOTH BARGAINING UNITS MAY BE AFFILIATED WITH THE SAME LABOR
ORGANIZATION.  A CLARIFYING MEMORANDUM OF THE WAR DEPARTMENT, DATED
JULY 10, 1943, REITERATES THE WAR DEPARTMENT ATTITUDE STILL FURTHER:
"IN THE EVENT THAT PLANT GUARDS ENROLLED AS AUXILIARY MILITARY POLICE
DESIRE TO BE REPRESENTED IN COLLECTIVE BARGAINING WITH THE MANAGEMENT,
THEY SHOULD BE REPRESENTED BY A BARGAINING UNIT OTHER THAN THAT
REPRESENTING THE PRODUCTION AND MAINTENANCE WORKERS.  HOWEVER, IN SUCH
EVENT, BOTH BARGAINING UNITS MAY BE AFFILIATED WITH THE SAME TRADE
UNION LOCAL, PROVIDED THEY ARE, IN FACT, SEPARATE BARGAINING UNITS." 

WE ARE UNABLE TO SAY THAT THE POLICY FORMULATED BY THE BOARD IS
WITHOUT REASON.  WHEN THE EMPLOYER RETAINS UNFETTERED POWER TO FIX THE
WAGES, HOURS OR OTHER WORKING CONDITIONS OF MILITARIZED GUARDS, THE
GUARDS STAND IN THE SAME RELATION TO THE EMPLOYER REGARDING THOSE
MATTERS AS DO PRODUCTION AND MAINTENANCE EMPLOYEES.  IN DISPUTES WITH
THE EMPLOYER OVER THOSE MATTERS, THEY SUFFER FROM THE SAME INEQUALITY
OF BARGAINING POWER AS SUFFERED BY OTHER UNORGANIZED EMPLOYEES; THE
APPROPRIATENESS AND NEED OF COLLECTIVE BARGAINING ON THEIR PART THROUGH
FREELY CHOSEN REPRESENTATIVES ARE EQUALLY AS GREAT.  BUT TO PREVENT
THEM FROM CHOOSING A UNION WHICH ALSO REPRESENTS PRODUCTION AND
MAINTENANCE EMPLOYEES IS TO MAKE THE COLLECTIVE BARGAINING RIGHTS OF
THE GUARDS DISTINCTLY SECOND-CLASS.  SUCH A UNION MAY BE THE ONLY ONE
WILLING AND ABLE TO DEAL WITH THE EMPLOYER.  ITS EXPERIENCE AND
ACQUAINTANCE WITH THE EMPLOYER AND THE PLANT MAY MAKE IT SPECIALLY
QUALIFIED TO BARGAIN FOR THE GUARDS.  THE GUARDS MIGHT THUS BE DEPRIVED
OF EFFECTIVE BARGAINING RIGHTS IF THEY ARE DENIED THE RIGHT TO CHOOSE
SUCH A UNION.  FREEDOM TO CHOOSE, IN THIS STATUTORY SETTING, MUST MEAN
COMPLETE FREEDOM TO CHOOSE ANY QUALIFIED REPRESENTATIVE UNLESS LIMITED
BY A VALID CONTRARY POLICY ADOPTED BY THE BOARD. 

AFTER DELIBERATION, THE BOARD HAS CONCLUDED THAT THIS FREEDOM CAN
SAFELY BE RECOGNIZED TO THE FULLEST EXTENT AS TO MILITARIZED GUARDS,
PROVIDED ONLY THAT THEY BE PLACED IN SEPARATE BARGAINING UNITS.  WE
CANNOT SAY THAT THIS CONCLUSION IS ONE SO LACKING IN AN APPRECIATION OF
THE MILITARY NECESSITIES OF THE SITUATION THAT WE SHOULD VOICE OUR
DISAPPROVAL AND SUBSTITUTE OUR OWN VIEWS OF PUBLIC POLICY.  IT IS
SIGNIFICANT THAT THE BOARD, IN WEIGHING THE MILITARY REQUIREMENTS
AGAINST THE NORMAL POLICIES OF THE ACT, HAS ARRIVED AT A RESULT WHICH
COINCIDES WITH THAT REACHED BY THE WAR DEPARTMENT.  THE LATTER AGENCY
HAS BEEN SATISFIED THAT MILITARIZED GUARDS CAN SAFELY JOIN AND CHOOSE
UNIONS REPRESENTING OTHER EMPLOYEES WITHOUT IMPAIRING THEIR LOYALTY TO
THE UNITED STATES OR THEIR ABILITY TO PERFORM THEIR MILITARY DUTIES
SATISFACTORILY.  WE ASSUME THAT ATTITUDE WAS ADOPTED AFTER A FULL
CONSIDERATION OF ALL THE MILITARY NECESSITIES, MATTERS WHICH ARE
PECULIARLY WITHIN THE COMPETENCE AND KNOWLEDGE OF THE WAR DEPARTMENT. 
IN LIGHT OF THAT FACT, IT IS IMPOSSIBLE TO SAY THAT A CIVILIAN AGENCY
ERRED IN FAILING TO INSIST UPON WHAT THE MILITARY EXPERTS FOUND TO BE
UNNECESSARY.  TO PROHIBIT MILITARIZED GUARDS FROM JOINING OR CHOOSING
UNIONS REPRESENTING PRODUCTION AND MAINTENANCE WORKERS ON GROUNDS OF
MILITARY NECESSITY IS TO ERECT LIMITATIONS WHICH NOT EVEN THOSE MOST
FAMILIAR WITH THE MILITARY SITUATION THOUGHT ESSENTIAL OR DESIRABLE. 
AND IN THIS NATION, THE STATUTORY RIGHTS OF CITIZENS ARE NOT TO BE
READILY CUT DOWN ON PLEAS OF MILITARY NECESSITY, ESPECIALLY PLEAS THAT
ARE UNSUPPORTED BY MILITARY AUTHORITIES.  CERTAINLY IT WOULD TAKE MORE
THAN THE SPECULATION AND THEORIES ADVANCED BY THE COURT BELOW TO
UNDERMINE THE FOUNDATION OF THE POLICY ADOPTED IN THIS RESPECT BY THE
BOARD. 

MOREOVER, THE EXPERIENCE OF THE BOARD HAS REVEALED NONE OF THE DIRE
CONSEQUENCES WHICH THE COURT BELOW FEARED MIGHT FLOW FROM THE
APPLICATION OF THE POLICY IN QUESTION.  146 F.2D AT 722-723.  IN ITS
BRIEF BEFORE US, THE BOARD HAS STATED THAT IT HAS CERTIFIED BARGAINING
REPRESENTATIVES FOR UNITS OF MILITARIZED GUARDS IN MORE THAN 105 CASES;
IN MORE THAN 80 OF THESE CASES, THE CERTIFIED UNION ALSO REPRESENTED A
SEPARATE BARGAINING UNIT OF OTHER EMPLOYEES OF THE SAME EMPLOYER. 
EMPLOYER RECOGNITION OF THE UNIONS, COLLECTIVE BARGAINING AND
CONTRACTUAL RELATIONS HAVE RESULTED IN MANY INSTANCES.  YET THE BOARD
STATES THAT IT HAS RECEIVED "NO INDICATION FROM ANY SOURCE THAT THE
DANGERS TO THE PUBLIC INTEREST AND PARTICULARLY TO THE WAR EFFORT WHICH
THE COURTS BELOW THOUGHT TO INHERE IN THAT POLICY HAVE IN FACT
MATERIALIZED IN ANY CASE." 

ONE FINAL MATTER REMAINS.  AFTER THE BOARD'S ORDER WAS ISSUED AND
AFTER THE GUARDS AT RESPONDENT'S OTIS WORKS WERE DEMILITARIZED, THE
GUARDS WERE DEPUTIZED BY THE POLICE AUTHORITIES OF THE CITY OF
CLEVELAND.  THE BOARD CLAIMS THAT SINCE THIS MATTER WAS NOT RAISED
BEFORE IT, THE COURT BELOW WAS PRECLUDED BY SEC. 10(E) OF THE ACT FROM
CONSIDERING THE EFFECT OF THE DEPUTIZATION UPON THE PROPRIETY OF
ENFORCING THE BOARD'S ORDER.  LABOR BOARD V. NEWPORT NEWS CO., 308 U.S.
241, 249-250; MARSHALL FIELD & CO. V. LABOR BOARD, 318 U.S. 253; LABOR
BOARD V. CHENEY LUMBER CO., 327 U.S. 385. 

BUT THE PROVISION OF SEC. 10(E), THAT "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,"
QUITE OBVIOUSLY REFERS TO OBJECTIONS THAT MIGHT HAVE BEEN BUT WERE NOT
RAISED IN THE ORIGINAL PROCEEDING BEFORE THE BOARD.  IN THIS CASE,
HOWEVER, THE DEPUTIZATION OF THE GUARDS OCCURRED AFTER THE BOARD HAD
CONCLUDED ITS HEARING AND ISSUED ITS ORDER AND AFTER THE COURT BELOW
HAD REFUSED THE FIRST TIME TO ENFORCE THE ORDER.  IT WAS THUS A MATTER
WHICH COULD NOT HAVE BEEN RAISED BEFORE THE BOARD.  AND THE FAILURE OF
RESPONDENT TO RAISE THE THEN NON-EXISTENT ISSUE BEFORE THE BOARD COULD
NOT DEPRIVE THE COURT BELOW OF POWER TO CONSIDER THE ISSUE ONCE IT DID
COME INTO EXISTENCE.  SEE LABOR BOARD V. BLANTON CO., 121 F.2D 564,
571. 

WHEN CIRCUMSTANCES DO ARISE AFTER THE BOARD'S ORDER HAS BEEN ISSUED
WHICH MAY AFFECT THE PROPRIETY OF ENFORCEMENT OF THE ORDER, THE
REVIEWING COURT HAS DISCRETION TO DECIDE THE MATTER ITSELF OR TO REMAND
IT TO THE BOARD FOR FURTHER CONSIDERATION.  FOR EXAMPLE, WHERE THE
ORDER OBVIOUSLY HAS BECOME MOOT, THE COURT CAN DENY ENFORCEMENT WITHOUT
FURTHER ADO; BUT WHERE THE MATTER IS ONE INVOLVING COMPLICATED OR
DISPUTED FACTS OR QUESTIONS OF STATUTORY POLICY, A REMAND TO THE BOARD
IS ORDINARILY IN ORDER.  IN THIS CASE, HOWEVER, THE BOARD AND THE
RESPONDENT HAVE STIPULATED THE FACTS CONCERNING THE DEPUTIZATION OF THE
GUARDS.  THE ONLY ISSUE IS WHETHER THE DEPUTIZATION IS SO INCONSISTENT
WITH THE POLICIES OF THE ACT THAT THE STATUTORY GUARANTEES MUST BE
DENIED TO THE GUARDS AND THE ENFORCEMENT OF THE BOARD'S ORDER REFUSED. 
THAT ISSUE IS ONE NORMALLY TO BE DETERMINED BY THE BOARD IN THE FIRST
INSTANCE, IT BEING THE FUNCTION OF THE BOARD RATHER THAN THE COURTS
INITIALLY TO CORRELATE THE POLICIES OF THE ACT WITH CONFLICTING
INTERESTS.  BUT WE DO NOT BELIEVE THAT A REMAND IS NECESSARY UNDER THE
SPECIAL CIRCUMSTANCES OF THIS CASE. 

THE BOARD HAS FREQUENTLY CONSIDERED THE STATUS OF PLANT GUARDS WHO
HAVE BEEN DEPUTIZED AS DEPUTY SHERIFFS OR SPECIAL POLICE.  WHERE THE
PRIVATE EMPLOYER RETAINS THE RIGHT TO FIX THE WAGES, HOURS OR OTHER
WORKING CONDITIONS OF SUCH GUARDS, THE BOARD'S UNIFORM CONCLUSION HAS
BEEN THAT THEY ARE EMPLOYEES OF THE PRIVATE EMPLOYER AND THAT THEY
RETAIN THEIR RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT.  SEE, E.G.,
LUCKENBACH STEAMSHIP CO., 2 N.L.R.B. 181, 189; AMERICAN-HAWAIIAN
STEAMSHIP CO., 10 N.L.R.B. 1355, 1363-1364; AMERICAN BRASS CO., 41
N.L.R.B. 783, 785; BETHLEHEM-FAIRFIELD SHIPYARD, INC., 61 N.L.R.B. 901,
905-906; STANDARD STEEL SPRING CO., 62 N.L.R.B. 660, 662-663.  AS IN
THE CASE OF MILITARIZED GUARDS, THE BOARD HAS FOUND NO EVIDENCE THAT
WHEN DEPUTIZED GUARDS JOIN UNIONS OR ENGAGE IN COLLECTIVE BARGAINING
THROUGH FREELY CHOSEN REPRESENTATIVES THEIR HONESTY, THEIR LOYALTY TO
POLICE AUTHORITIES, OR THEIR COMPETENCE TO EXECUTE THEIR POLICE DUTIES
SATISFACTORILY IS UNDERMINED.  IT IS SUFFICIENT, IN THE BOARD'S
JUDGMENT, TO PROTECT THE SPECIAL STATUS OF THESE GUARDS BY SEGREGATING
THEM IN SEPARATE BARGAINING UNITS. 

WE FIND IT IMPOSSIBLE TO SAY THAT THE BOARD IS WRONG IN ADOPTING THIS
POLICY AS TO DEPUTIZED GUARDS.  IT IS A COMMON PRACTICE IN THIS COUNTRY
FOR PRIVATE WATCHMEN OR GUARDS TO BE VESTED WITH THE POWERS OF
POLICEMEN, SHERIFFS OR PEACE OFFICERS TO PROTECT THE PRIVATE PROPERTY
OF THEIR PRIVATE EMPLOYERS.  AND WHEN THEY ARE PERFORMING THEIR POLICE
FUNCTIONS, THEY ARE ACTING AS PUBLIC OFFICERS AND ASSUME ALL THE POWERS
AND LIABILITIES ATTACHING THERETO.  THORNTON V. MISSOURI PACIFIC R.
CO., 42 MO. APP. 58; DEMPSEY V. NEW YORK CENTRAL & HUDSON RIVER R. CO.,
146 N.Y. 290, 40 N.E. 867; MCKAIN V. BALTIMORE & OHIO R. CO., 65 W. VA.
233, 64 S.E. 18; NEALLUS V. HUTCHINSON AMUSEMENT CO., 126 ME. 469, 139
A. 671.  BUT IT HAS NEVER BEEN ASSUMED THAT SUCH DEPUTIZED GUARDS
THEREBY CEASE TO BE EMPLOYEES OF THE COMPANY CONCERNED OR THAT THEY
BECOME MUNICIPAL EMPLOYEES FOR ALL PURPOSES.  SEE CHICAGO & N.W.R. CO.
V. MCKENNA, 74 F.2D 155.  WAGES, HOURS, BENEFITS AND VARIOUS OTHER
CONDITIONS OF WORK NORMALLY REMAIN SUBJECT TO DETERMINATION BY THE
PRIVATE EMPLOYERS.  AT LEAST AS TO THOSE MATTERS, THE DEPUTIZED GUARDS
REMAIN EMPLOYEES OF THE PRIVATE EMPLOYERS.  SEE WALLING V. MERCHANTS
POLICE SERVICE, 59 F.SUPP.  873.  HENCE THEY MAY BE HELD TO BE
EMPLOYEES WITHIN THE MEANING OF SEC. 2(3) OF THE NATIONAL LABOR
RELATIONS ACT.  LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111. 

DEPUTIZED GUARDS BEAR THE SAME RELATIONSHIP TO MANAGEMENT THAT NON
DEPUTIZED GUARDS BEAR, A RELATIONSHIP THAT WE DISCUSSED IN THE ATKINS
CASE, ANTE, P. 398, AND THAT WE FOUND TO BE ADEQUATE FOR THE BOARD TO
FIND THE EXISTENCE OF AN EMPLOYER-EMPLOYEE STATUS.  LIKEWISE, THEIR
RELATIONSHIP TO POLICE OR MUNICIPAL AUTHORITIES IS NOT ONE THAT IS
NECESSARILY INCONSISTENT WITH THEIR STATUS AS EMPLOYEES UNDER THE ACT. 
UNION MEMBERSHIP AND COLLECTIVE BARGAINING ARE CAPABLE OF BEING MOLDED
TO FIT THE SPECIAL RESPONSIBILITIES OF DEPUTIZED PLANT GUARDS AND WE
CANNOT ASSUME, AS A PROPOSITION OF LAW, THAT THEY WILL NOT BE SO
MOLDED.  IF THERE IS ANY DANGER THAT PARTICULAR DEPUTIZED GUARDS MAY
NOT FAITHFULLY PERFORM THEIR OBLIGATIONS TO THE PUBLIC, THE REMEDY IS
TO BE FOUND OTHER THAN IN THE WHOLESALE DENIAL TO ALL DEPUTIZED GUARDS
OF THEIR STATUTORY RIGHT TO JOIN UNIONS AND TO CHOOSE FREELY THEIR
BARGAINING AGENTS.  THE STATE AND MUNICIPAL AUTHORITIES, IN SHORT, HAVE
ADEQUATE MEANS OF PUNISHING INFIDELITY AND ASSURING FULL POLICE
PROTECTION. 

WE FIND NOTHING IN THE INSTANT CASE WHICH WOULD MAKE INAPPLICABLE THE
BOARD'S POLICY WITH RESPECT TO DEPUTIZED GUARDS, AND THE BOARD HAS SO
ARGUED BEFORE US.  THE STIPULATED FACTS REVEAL THAT THE GUARDS AT
RESPONDENT'S OTIS WORKS WERE COMMISSIONED AS PRIVATE POLICEMEN OF THE
CITY OF CLEVELAND UNDER SEC. 188 OF THE CLEVELAND MUNICIPAL CODE
(1924), AND AS SUCH ARE MEMBERS OF THE MUNICIPAL POLICE FORCE AND
EXERCISE THE LEGAL POWERS OF PEACE OFFICERS IN THEIR WORK AS PLANT
GUARDS.  THEY ARE UNDER THE CONTROL OF A POLICE CAPTAIN AND HIS
LIEUTENANTS, THE POLICE CAPTAIN BEING DIRECTLY RESPONSIBLE TO
RESPONDENT'S DIRECTOR OF PLANT SECURITY AT PITTSBURGH AND TO
RESPONDENT'S EXECUTIVE OFFICER IN GENERAL CHARGE OF THE OTIS WORKS. 
THE POLICE CAPTAIN IS ALSO A DEPUTY SHERIFF OF CUYAHOGA COUNTY, OHIO. 
IT IS NOT DENIED THAT THE GUARDS CONTINUE TO BE PAID BY RESPONDENT AND
THAT THEIR HOURS, BENEFITS AND OTHER CONDITIONS OF WORK REMAIN THE
RESPONSIBILITY OF RESPONDENT. 

THE COURT BELOW POINTED OUT THAT THE OHIO LAW ON THE STATUS AND
DUTIES OF SPECIAL POLICEMEN IS IN ACCORD WITH THE GENERAL RULE WHICH WE
HAVE NOTED.  IN OTHER WORDS, SPECIAL POLICEMEN ARE PUBLIC OFFICERS WHEN
PERFORMING THEIR PUBLIC DUTIES.  NEW YORK, CHICAGO & ST. LOUIS R. CO.
V. FIEBACK, 87 OHIO ST. 254, 100 N.E. 889; PENNSYLVANIA R. CO. V. DEAL,
116 OHIO ST. 408, 156 N.E. 502.  BUT NONE OF THE OHIO CASES ATTEMPTS TO
SAY THAT THE PUBLIC STATUS OF SPECIAL POLICEMEN DESTROYS COMPLETELY
THEIR PRIVATE STATUS AS EMPLOYEES OF INDIVIDUAL COMPANIES.  NOR IS
THERE ANY BASIS FOR THE INTIMATION THAT THEIR PUBLIC DUTIES ARE SUCH AS
TO RENDER INCOMPATIBLE THE RECOGNITION OF RIGHTS UNDER THE NATIONAL
LABOR RELATIONS ACT. 

WE THEREFORE CONCLUDE THAT THE FACTS AND THE LAW ARE SUFFICIENTLY
CLEAR TO JUSTIFY A DETERMINATION THAT THE GUARDS AT RESPONDENT'S OTIS
WORKS ARE EMPLOYEES WITHIN THE MEANING OF THE ACT DESPITE THEIR
DEPUTIZATION AS MUNICIPAL POLICEMEN.  AND THEY HAVE AS MUCH RIGHT TO
SELECT AS THEIR BARGAINING AGENT A UNION WHICH REPRESENTS PRODUCTION
AND MAINTENANCE WORKERS AS HAVE MILITARIZED GUARDS, THE SAME
CONSIDERATIONS BEING APPLICABLE.  IT IS OBVIOUS THAT THE BOARD WOULD
APPLY SUCH A POLICY TO THIS CASE, THEREBY MAKING A REMAND TO THE BOARD
A MERE FORMALITY AND A NEEDLESS ADDITION TO AN ALREADY OVER-PROLONGED
PROCEEDING.  UNDER SUCH CIRCUMSTANCES, A REMAND TO THE BOARD IS
UNNECESSARY. 

IT FOLLOWS THAT THE COURT BELOW SHOULD HAVE ENFORCED THE BOARD'S
ORDER.  REVERSED. 

THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON AND
MR. JUSTICE BURTON DISSENT SUBSTANTIALLY FOR THE REASONS SET FORTH IN
THE OPINION OF THE COURT BELOW, 154 F.2D 932. 
..END :










UNITED STATES V. WALSH, 331 U.S. 432 


NO. 718.  ARGUED APRIL 29, 1947.  - DECIDED MAY 19, 1947.  - REVERSED. 


1.  UNDER SEC. 301(H) OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT OF
1938, WHICH PROHIBITS THE GIVING OF A FALSE GUARANTY THAT ANY FOOD,
DRUG, DEVICE OR COSMETIC IS NOT ADULTERATED OR MISBRANDED WITHIN THE
MEANING OF THE ACT, IT IS AN OFFENSE TO GIVE A FALSE GUARANTY TO ONE
ENGAGED WHOLLY OR PARTLY IN AN INTERSTATE BUSINESS, IRRESPECTIVE OF
WHETHER THE GUARANTY LEADS IN ANY PARTICULAR INSTANCE TO AN ILLEGAL
SHIPMENT IN INTERSTATE COMMERCE.  P. 437. 

2.  AS THUS CONSTRUED, SEC. 301(H) IS A VALID EXERCISE OF THE POWER
OF CONGRESS UNDER THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP.
437-438. 

UNITED STATES V. WALSH, TRADING AS KELP LABORATORIES. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

IN A PROSECUTION FOR VIOLATION OF THE FEDERAL FOOD, DRUG, AND
COSMETIC ACT, THE DISTRICT COURT SUSTAINED THE DEFENDANT'S MOTION TO
DISMISS THE INFORMATION.  THE GOVERNMENT APPEALED DIRECTLY TO THIS
COURT UNDER THE CRIMINAL APPEALS ACT.  REVERSED, P. 438. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL BRINGS BEFORE US SEC. 301(H) OF THE FEDERAL FOOD, DRUG,
AND COSMETIC ACT OF 1938, 52 STAT. 1040, 1042, 21 U.S.C. SEC. 331(H),
WHICH PROHIBITS THE GIVING OF A FALSE GUARANTY THAT ANY FOOD, DRUG,
DEVICE OR COSMETIC IS NOT ADULTERATED OR MISBRANDED WITHIN THE MEANING
OF THE ACT. 

APPELLEE DOES BUSINESS IN SAN DIEGO, CALIFORNIA, UNDER THE NAME OF
KELP LABORATORIES.  AN INFORMATION HAS BEEN FILED, CHARGING APPELLEE
WITH HAVING GIVEN A FALSE GUARANTY IN VIOLATION OF SEC. 301(H).  THE
FOLLOWING FACTS HAVE BEEN ALLEGED:  IN FEBRUARY, 1943, APPELLEE GAVE A
CONTINUING GUARANTY TO RICHARD HARRISON PRODUCTS, OF HOLLYWOOD,
CALIFORNIA, STATING THAT NO PRODUCTS THEREAFTER SHIPPED TO THE LATTER
WOULD BE ADULTERATED OR MISBRANDED WITHIN THE MEANING OF THE ACT.  ON
FEBRUARY 24, 1945, WHILE THE GUARANTY WAS IN FULL FORCE AND EFFECT,
APPELLEE CONSIGNED TO RICHARD HARRISON PRODUCTS, AT HOLLYWOOD, A
SHIPMENT OF VITAMIN PRODUCTS WHICH WERE ALLEGEDLY ADULTERATED AND
MISBRANDED - THEREBY MAKING THE GUARANTY FALSE IN RESPECT OF THAT
SHIPMENT.  PRIOR AND SUBSEQUENT TO THE DATE OF THE SHIPMENT, RICHARD
HARRISON PRODUCTS WAS ENGAGED IN THE BUSINESS OF INTRODUCING AND
DELIVERING FOR INTRODUCTION INTO INTERSTATE COMMERCE QUANTITIES OF THE
VITAMIN PRODUCT SUPPLIED BY APPELLEE. 

APPELLEE MOVED TO DISMISS THE INFORMATION ON THE GROUND THAT IT DID
NOT STATE AN OFFENSE.  THE ARGUMENT WAS THAT SEC. 301(H) APPLIES ONLY
TO A GUARANTY THAT IS FALSE RELATIVE TO AN INTERSTATE SHIPMENT, WHEREAS
THE ALLEGED SHIPMENT HERE WAS TO A CONSIGNEE WITHIN CALIFORNIA, THE
STATE OF ORIGIN, AND THERE WAS NO ALLEGATION THAT THE CONSIGNEE
PURCHASED THE ORDER FOR SOMEONE OUTSIDE CALIFORNIA OR THAT IT INTENDED
TO SELL THE PRODUCTS IN ITS INTERSTATE RATHER THAN ITS INTRASTATE
BUSINESS.  THE DISTRICT COURT GAVE AN ORAL OPINION SUSTAINING
APPELLEE'S CONTENTION AND GRANTING THE MOTION TO DISMISS.  THE CASE IS
HERE ON DIRECT APPEAL BY THE UNITED STATES. 

THE FEDERAL FOOD, DRUG, AND COSMETIC ACT RESTS UPON THE
CONSTITUTIONAL POWER RESIDENT IN CONGRESS TO REGULATE INTERSTATE
COMMERCE.  TO THE END THAT THE PUBLIC HEALTH AND SAFETY MIGHT BE
ADVANCED, IT SEEKS TO KEEP INTERSTATE CHANNELS FREE FROM DELETERIOUS,
ADULTERATED AND MISBRANDED ARTICLES OF THE SPECIFIED TYPES.  UNITED
STATES V. DOTTERWEICH, 320 U.S. 277, 280.  IT IS IN THAT INTERSTATE
SETTING THAT THE VARIOUS SECTIONS OF THE ACT MUST BE VIEWED. 

BUT SEC. 301(H), WITH WHICH WE ARE CONCERNED, DOES NOT SPEAK
SPECIFICALLY IN INTERSTATE TERMS.  IT PROHIBITS THE "GIVING OF A
GUARANTY OR UNDERTAKING REFERRED TO IN SECTION 303(C)(2), WHICH
GUARANTY OR UNDERTAKING IS FALSE," THE ONLY EXCEPTION BEING AS TO A
FALSE GUARANTY GIVEN BY A PERSON WHO, IN TURN, RELIED UPON A SIMILAR
GUARANTY GIVEN BY THE PERSON FROM WHOM HE RECEIVED IN GOOD FAITH THE
ADULTERATED OR MISBRANDED ARTICLE.  FN1  NOTHING ON THE FACE OF THE
INTRODUCED OR DELIVERED FOR INTRODUCTION INTO INTERSTATE COMMERCE. 
FROM ALL THAT APPEARS, ITS PROSCRIPTION PLAINLY EXTENDS TO THE GIVING
OF ANY FALSE STATUTORY GUARANTY, WITHOUT REGARD TO THE INTERSTATE OR
INTRASTATE CHARACTER OF THE SHIPMENT IN QUESTION, TO THOSE WHO ARE
ENGAGED IN THE BUSINESS OF MAKING INTERSTATE SHIPMENTS. 

NOR DO WE FIND ANY INTERSTATE LIMITATION OF THE TYPE WHICH APPELLEE
PROPOSES IN THE REFERENCE MADE IN SEC. 301(H) TO SEC. 303(C)(2).  FN2
THAT REFERENCE IS MADE SIMPLY TO DEFINE THE TYPE OF GUARANTY OR
UNDERTAKING THE FALSIFICATION OF WHICH IS PROHIBITED BY SEC. 301(H). 
INSTEAD OF SPELLING OUT THE MATTER, SEC. 301(H) ADOPTS THE REFERENCE IN
SEC. 303(C)(2) TO "A GUARANTY OR UNDERTAKING SIGNED BY, AND CONTAINING
THE NAME AND ADDRESS OF, THE PERSON RESIDING IN THE UNITED STATES FROM
WHOM HE RECEIVED IN GOOD FAITH THE ARTICLE, TO THE EFFECT  ...  THAT
SUCH ARTICLE IS NOT ADULTERATED OR MISBRANDED, WITHIN THE MEANING OF
THIS ACT, DESIGNATING THIS ACT  ...  "  THE FACT THAT SEC. 303(C)(2)
RELIEVES A HOLDER OF SUCH A GUARANTY FROM THE CRIMINAL PENALTIES
PROVIDED BY SEC. 303(A) FOR VIOLATING SEC. 301(A) DOES NOT CARRY OVER
THE INTERSTATE LIMITATION OF SEC. 301(A) TO SEC. 301(H).  SECTION
301(A) PROHIBITS THE INTRODUCTION OR DELIVERY FOR INTRODUCTION INTO
INTERSTATE COMMERCE OF ILLICIT ARTICLES,  FN3  AND SEC. 303(C)(2)
RELIEVES ONE FROM THE LIABILITIES OF SUCH INTRODUCTION IF ONE HAS A
GUARANTY OR UNDERTAKING AS THEREIN DESCRIBED.  SECTION 301(H) HAS
ADOPTED THAT DESCRIPTION FOR THE ENTIRELY DIFFERENT PURPOSE OF
INFORMING PERSONS WHAT KIND OF A GUARANTY OR UNDERTAKING MAY NOT BE
GIVEN FALSELY.  IN OTHER WORDS, SEC. 301(A) IS DIRECTED TO ILLEGAL
INTERSTATE SHIPMENTS, WHILE SEC. 301(H) IS DIRECTED TO THE GIVING OF
FALSE GUARANTIES.  GUARANTIES AS DESCRIBED IN SEC. 303(C)(2) MAY BE
USED BY INTERSTATE DEALERS IN CONNECTION WITH EITHER INTERSTATE OR
INTRASTATE SHIPMENTS AND THOSE GUARANTIES THAT ARE FALSE ARE OUTLAWED
BY SEC. 301(H). 

IT IS TRUE, OF COURSE, THAT THE GUARANTY REFERRED TO IN SEC.
303(C)(2) IS ONE GIVEN FOR THE PURPOSE OF PROTECTING THE DEALER "IN
CASE OF AN ALLEGED VIOLATION OF SECTION 301(A)," THEREBY RELIEVING HIM
OF LIABILITY IF HE RESHIPS ADULTERATED OR MISBRANDED GOODS IN
INTERSTATE COMMERCE.  BUT WHERE SUCH A GUARANTY, AS IN THIS CASE, IS
GIVEN TO A DEALER REGULARLY ENGAGED IN MAKING INTERSTATE SHIPMENTS AND
WHO MAY THEREFORE HAVE NEED OF THE GUARANTY, SEC. 301(H) IMPOSES
LIABILITY ON THE GUARANTOR IF THAT GUARANTY TURNS OUT TO BE FALSE.  AND
THAT LIABILITY ATTACHES EVEN WHERE THE PARTICULAR SHIPMENT WHICH
RENDERS THE GUARANTY FALSE IS NOT ALLEGED TO HAVE BEEN AN INTERSTATE
ONE. 

IT IS SIGNIFICANT THAT SEC. 301(H) HAD NO COUNTERPART IN THE
PREDECESSOR STATUTE, THE FOOD AND DRUGS ACT OF 1906, 34 STAT. 768. 
UNDER SEC. 9 OF THAT ACT, A DEALER COULD NOT BE PROSECUTED FOR SHIPPING
ADULTERATED OR MISBRANDED ARTICLES IN INTERSTATE COMMERCE IF HE HAD A
GUARANTY OF A TYPE SIMILAR TO THAT REFERRED TO IN THE PRESENT STATUTE. 
IF THERE WERE SUCH A GUARANTY, THE GUARANTOR WAS SUBJECT TO THE
PENALTIES WHICH WOULD OTHERWISE ATTACH TO THE DEALER.  THE RESULT WAS
THAT THE GUARANTOR WAS NOT LIABLE ON ACCOUNT OF A FALSE GUARANTY UNLESS
THE DEALER HAD SHIPPED THE PROHIBITED ARTICLE IN INTERSTATE COMMERCE. 
STEINHARDT BROS. & CO. V. UNITED STATES, 191 F. 798, 800; UNITED STATES
V. CHARLES L. HEINLE SPECIALTY CO., 175 F. 299, 300-301.  THERE WAS NO
LIABILITY FOR ISSUING A FALSE GUARANTY AS SUCH TO ONE ENGAGED IN AN
INTERSTATE BUSINESS.  BUT IN THE 1938 ACT, CONGRESS ADDED A NEW
LIABILITY IN THE FORM OF SEC. 301(H), MAKING THE GUARANTOR LIABLE FOR
GIVING A FALSE GUARANTY OF THE TYPE REFERRED TO IN SEC. 303(C)(2).  WE
FIND IT IMPOSSIBLE TO SAY THAT THE FRAMERS OF THE 1938 ACT ADDED SEC.
301(H) FOR THE USELESS PURPOSE OF ACHIEVING THE SAME RESULT AS HAD BEEN
REACHED UNDER THE 1906 ACT WITHOUT SUCH A PROVISION. 

WE THUS CONCLUDE THAT SEC. 301(H) DEFINITELY PROSCRIBES THE GIVING OF
A FALSE GUARANTY TO ONE ENGAGED WHOLLY OR PARTLY IN AN INTERSTATE
BUSINESS IRRESPECTIVE OF WHETHER THAT GUARANTY LEADS IN ANY PARTICULAR
INSTANCE TO AN ILLEGAL SHIPMENT IN INTERSTATE COMMERCE.  SUCH A
CONSTRUCTION IS ENTIRELY CONSISTENT WITH THE INTERSTATE SETTING OF THE
ACT.  A MANUFACTURER OR PROCESSOR ORDINARILY HAS NO WAY OF KNOWING
WHETHER A DEALER, WHOSE BUSINESS INCLUDES MAKING INTERSTATE SALES, WILL
REDISTRIBUTE A PARTICULAR SHIPMENT IN INTERSTATE OR INTRASTATE
COMMERCE.  BUT IF HE GUARANTEES THAT HIS PRODUCT IS NOT ADULTERATED OR
MISBRANDED WITHIN THE MEANING OF THE ACT, HE CLEARLY INTENDS TO ASSURE
THE DEALER THAT THE LATTER MAY REDISTRIBUTE THE PRODUCT IN INTERSTATE
COMMERCE WITHOUT INCURRING ANY OF THE LIABILITIES OF THE ACT.  AND THE
DEALER IS THEREBY MORE LIKELY TO ENGAGE IN INTERSTATE DISTRIBUTION
WITHOUT MAKING AN INDEPENDENT CHECK OF THE PRODUCT.  THE POSSIBILITY
THAT A FALSE GUARANTY MAY GIVE RISE TO AN ILLEGAL INTERSTATE SHIPMENT
BY SUCH A DEALER IS STRONG ENOUGH TO MAKE REASONABLE THE PROHIBITION OF
ALL FALSE GUARANTIES TO HIM, EVEN THOUGH SOME OF THEM MAY ACTUALLY
RESULT ONLY IN INTRASTATE DISTRIBUTION.  BY THIS MEANS, SOME OF THE
EVILS WHICH CONGRESS SOUGHT TO ELIMINATE ARE CUT DOWN AT THEIR SOURCE
AND THE EFFECTIVENESS OF THE ACT'S ENFORCEMENT IS GREATLY ENHANCED. 

SO CONSTRUED, SEC. 301(H) RAISES NO CONSTITUTIONAL DIFFICULTIES.  THE
COMMERCE CLAUSE OF THE CONSTITUTION IS NOT TO BE INTERPRETED SO AS TO
DENY TO CONGRESS THE POWER TO MAKE EFFECTIVE ITS REGULATION OF
INTERSTATE COMMERCE.  WHERE THAT EFFECTIVENESS DEPENDS UPON A
REGULATION OR PROHIBITION ATTACHING REGARDLESS OF WHETHER THE
PARTICULAR TRANSACTION IN ISSUE IS INTERSTATE OR INTRASTATE IN
CHARACTER, A TRANSACTION THAT CONCERNS A BUSINESS GENERALLY ENGAGED IN
INTERSTATE COMMERCE, CONGRESS MAY ACT.  SUCH IS THIS CASE. 

THE JUDGMENT OF THE DISTRICT COURT IS ACCORDINGLY REVERSED. 

FN1  SECTION 301(H) PROHIBITS "THE GIVING OF A GUARANTY OR
UNDERTAKING REFERRED TO IN SECTION 303(C)(2), WHICH GUARANTY OR
UNDERTAKING IS FALSE, EXCEPT BY A PERSON WHO RELIED UPON A GUARANTY OR
UNDERTAKING TO THE SAME EFFECT SIGNED BY, AND CONTAINING THE NAME AND
ADDRESS OF, THE PERSON RESIDING IN THE UNITED STATES FROM WHOM HE
RECEIVED IN GOOD FAITH THE FOOD, DRUG, DEVICE, OR COSMETIC; OR THE
GIVING OF A GUARANTY OR UNDERTAKING REFERRED TO IN SECTION 303(C)(3),
WHICH GUARANTY OR UNDERTAKING IS FALSE." 

FN2  SECTION 303(C)(2) PROVIDES THAT NO PERSON SHALL BE SUBJECT TO
THE PENALTIES OF SEC. 303(A) "FOR HAVING VIOLATED SECTION 301(A) OR
(D), IF HE ESTABLISHES A GUARANTY OR UNDERTAKING SIGNED BY, AND
CONTAINING THE NAME AND ADDRESS OF, THE PERSON RESIDING IN THE UNITED
STATES FROM WHOM HE RECEIVED IN GOOD FAITH THE ARTICLE, TO THE EFFECT,
IN CASE OF AN ALLEGED VIOLATION OF SECTION 301(A), THAT SUCH ARTICLE IS
NOT ADULTERATED OR MISBRANDED, WITHIN THE MEANING OF THIS ACT,
DESIGNATING THIS ACT, OR TO THE EFFECT, IN CASE OF AN ALLEGED VIOLATION
OF SECTION 301(D), THAT SUCH ARTICLE IS NOT AN ARTICLE WHICH MAY NOT,
UNDER THE PROVISIONS OF SECTION 404 OR 505, BE INTRODUCED INTO
INTERSTATE COMMERCE  ...  " 

FN3  SECTION 301(A) PROHIBITS "THE INTRODUCTION OR DELIVERY FOR
INTRODUCTION INTO INTERSTATE COMMERCE OF ANY FOOD, DRUG, DEVICE, OR
COSMETIC THAT IS ADULTERATED OR MISBRANDED." 

MR. JUSTICE JACKSON, DISSENTING. 

STRETCH THE FOOD AND DRUGS ACT AS WE WILL, I CANNOT MAKE IT COVER
THIS CHARGE AS A CRIME.  THE STATUTORY SCHEME IS TO MAKE A CRIME OF
"THE INTRODUCTION OR DELIVERY FOR INTRODUCTION INTO INTERSTATE
COMMERCE" OF ADULTERATED OR MISBRANDED GOODS.  52 STAT. 1042, 21 U.S.C.
SEC. 331(A) AND (D). 

BUT SINCE MANY SHIPPERS BUY GOODS OF OTHERS AND DO NOT KNOW THEIR
PRECISE INGREDIENTS, CONGRESS ALLOWED AN ESCAPE FOR THE VIOLATOR,
PROVIDED HE ACTED IN GOOD FAITH AND COULD TRACE THE RESPONSIBILITY TO
ANOTHER.  THIS HE MUST DO BY PRODUCING A SIGNED GUARANTY OR
UNDERTAKING, AND THE STATUTE REQUIRES THAT IT SHALL BE CONDITIONED "TO
THE EFFECT, IN CASE OF AN ALLEGED VIOLATION OF SECTION 331(A), THAT
SUCH ARTICLE IS NOT ADULTERATED OR MISBRANDED  ...  OR TO THE EFFECT,
IN CASE OF AN ALLEGED VIOLATION OF SECTION 331(D), THAT SUCH ARTICLE IS
NOT AN ARTICLE" FORBIDDEN SHIPMENT BY STATED PARAGRAPHS OF THE ACT.  52
STAT. 1043, 21 U.S.C. SEC. 333(C). 

IT WILL BE NOTICED THAT CONGRESS NOT ONLY PROVIDED BUT REPEATED THAT
THE STATUTORY BOND REQUIRED IS "IN CASE OF AN ALLEGED VIOLATION" BY
INTRODUCING OR DELIVERING FOR INTRODUCTION OF GOODS IN INTERSTATE
COMMERCE.  NO SUCH VIOLATION HAS BEEN ALLEGED HERE; THESE GOODS WERE
NEVER INTRODUCED OR DELIVERED FOR INTRODUCTION INTO INTERSTATE
COMMERCE.  BUT THE COURT SEEMS TO THINK IT IS ENOUGH THAT THERE ARE
SOME GROUNDS FOR EXPECTING THAT THIS CRIME POSSIBLY, OR PROBABLY, OR
PERHAPS PRETTY CERTAINLY, WOULD EVENTUALLY BE COMMITTED. 

OF COURSE, IF THE ASSURED HAD COMMITTED THIS OFFENSE AND HAD FALLEN
BACK ON THE GUARANTOR, THE STATUTE WHICH REACHED THE ASSURED WOULD NOT
BE SUFFICIENT.  TO PUNISH THE RESPONSIBLE PERSON, IT WAS MADE A CRIME
TO GIVE A FALSE GUARANTY "REFERRED TO IN" THE STATUTE.  52 STAT. 1042,
21 U.S.C. SEC. 331(H). 

THE GOVERNMENT NOW SEEKS TO EXACT CRIMINAL RESPONSIBILITY ON A
GUARANTEE, EXPRESSLY CONDITIONED ONLY "IN CASE OF VIOLATION," IN A CASE
OF NO VIOLATION.  UNTIL A VIOLATION IS ALLEGED, THE GUARANTY PLAYS NO
STATUTORY ROLE AT ALL.  IT MIGHT AFFORD A CAUSE OF ACTION IF FALSE, BUT
THAT IS QUITE DIFFERENT FROM MAKING IT A CRIME.  FOR IT IS NO GUARANTY
AT ALL FOR CRIMINAL PROSECUTION PURPOSES IF VIOLATION OF NEITHER SEC.
331(A) NOR SEC. 331(D) IS ALLEGED.  THE STATUTE REQUIRES SUCH VIOLATION
TO BE ALLEGED ONLY, NOT PROVED, IN ORDER TO PUT THE GUARANTOR RATHER
THAN THE ASSURED TO THE PROOF.  THIS IS THE ONLY INSTANCE I RECALL
WHERE THE GUARANTOR IS LIABLE WHEN THERE IS NO BREACH OF THE CONDITION
OF THE BOND.  THE WHOLE PLAN WAS TO HAVE A SUBSTITUTED LIABILITY IN
CASE THE VIOLATOR OF THE ACT BECAME SUCH IN GOOD FAITH.  THIS DECISION
MAKES A NEW, INDEPENDENT AND ORIGINAL LIABILITY WHERE THERE HAS BEEN NO
ALLEGED VIOLATION BY MOVING THE GOODS IN INTERSTATE COMMERCE.    I DO
NOT THINK WE SHOULD TAKE SUCH LIBERTIES IN EXPANDING CRIMINAL STATUTES
IN WHICH THE SOVEREIGN ONCE WAS CONSIDERED UNDER A DUTY TO BE EXPLICIT
AND THE SUBJECT ENTITLED TO THE DOUBT. 
..END :























UNITED STATES V. FULLARD-LEO, 331 U.S. 256 


NO. 429.  ARGUED FEBRUARY 12, 1947.  - DECIDED MAY 12, 1947.  - 156 F.2D
756, AFFIRMED. 


1.  ON THE FACTS OF THIS CASE, INCLUDING BOTH AN UNBROKEN CHAIN OF
PRIVATE CONVEYANCES AND A CLAIM OF RIGHT TO EXCLUSIVE POSSESSION SINCE
1862, WHEN POSSESSION OF PALMYRA ISLAND WAS TAKEN BY RESPONDENTS'
PREDECESSORS IN INTEREST IN THE NAME OF THE KING OF HAWAII, AND ON THE
PRESUMPTION OF A LOST GRANT, THE GOVERNMENT'S CLAIM OF TITLE TO PALMYRA
ISLAND AS SUCCESSOR TO THE KINGDOM AND REPUBLIC OF HAWAII IS DENIED AND
FEE SIMPLE TITLE TO THE ISLAND IS QUIETED IN RESPONDENTS -
NOTWITHSTANDING THEIR FAILURE TO SHOW ACTUAL OCCUPANCY OF THIS ISOLATED
ISLAND IN THE PACIFIC OCEAN EXCEPT FOR INTERMITTENT PERIODS AGGREGATING
LESS THAN TWO AND ONE-HALF YEARS OUT OF 77 YEARS SINCE THE ORIGIN OF
THEIR CLAIM OF TITLE.  PP. 269-281. 

2.  A RESOLUTION ADOPTED BY THE KING AND CABINET COUNCIL OF HAWAII IN
1862 AUTHORIZING RESPONDENTS' PREDECESSORS IN INTEREST TO TAKE
POSSESSION OF THE ISLAND IN THE NAME OF THE KING OF HAWAII AND THE
FORMALITIES OF ANNEXATION ARE CONSTRUED AS REQUIRING ONLY THAT
SOVEREIGNTY OVER THE ISLAND BE ACQUIRED BY THE KING AND NOT AS
REQUIRING THAT TITLE TO THE ISLAND SHOULD VEST IN THE KING OR AS BEING
OTHERWISE INCONSISTENT WITH A PRESUMPTION THAT A GRANT OF TITLE TO THE
ISLAND WAS ISSUED TO RESPONDENTS' PREDECESSORS IN INTEREST.  PP. 260
265. 

3.  UNDER THE LAWS IN EFFECT IN HAWAII AT THE TIME OF THE ANNEXATION
OF PALMYRA ISLAND IN 1862, BOTH THE KING AND THE MINISTER OF THE
INTERIOR WITH THE AUTHORITY OF THE KING IN THE CABINET COUNCIL HAD
POWER TO CONVEY THE LANDS TO PRIVATE CITIZENS.  HAWAIIAN CIVIL CODE,
1859, SECS. 39-48; HAWAIIAN ACT OF JANUARY 3, 1865, REV. LAWS, HAWAII,
1905, P. 1226, SEC. 3.  PP. 266-269. 

4.  THIS COURT TAKES JUDICIAL NOTICE OF THE LAWS OF HAWAII PRIOR TO
ITS ANNEXATION AS A PART OF OUR DOMESTIC LAWS.  P. 269. 

5.  THE RULES UNDER WHICH THE HAWAIIAN PEOPLE LIVED UNDER THE
MONARCHY OR REPUBLIC DEFINE, FOR THE SOVEREIGN OF TODAY, THE RIGHTS
ACQUIRED DURING THOSE PERIODS.  P. 269. 

6.  HAWAIIAN LAW, AS IT EXISTED BEFORE THE ANNEXATION OF THE
TERRITORY, IS CONTROLLING ON RIGHTS THEN ACQUIRED IN LAND.  P. 269. 

7.  IN MATTERS OF LOCAL LAW, THE FEDERAL COURTS DEFER TO THE
DECISIONS OF THE TERRITORIAL COURTS OF HAWAII; BUT, WHERE A CLAIMED
TITLE TO PUBLIC LANDS OF THE UNITED STATES IS INVOLVED, THAT IS A
FEDERAL QUESTION AND THE FEDERAL COURTS WILL CONSTRUE THE LAW FOR
THEMSELVES AND ARE NOT BOUND TO FOLLOW HAWAIIAN DECISIONS.  PP. 269
270. 

8.  THE PRESUMPTION OF A LOST GRANT TO LAND RECOGNIZES THAT LAPSE OF
TIME MAY CURE THE NEGLECT OR FAILURE TO SECURE THE PROPER MUNIMENTS OF
TITLE, EVEN THOUGH THE LOST GRANT MAY NOT HAVE BEEN IN FACT EXECUTED. 
P. 270. 

9.  THE RULE APPLIES TO CLAIMS TO LAND HELD ADVERSELY TO THE
SOVEREIGN.  PP. 270-272. 

10.  THE LAW OF THE TERRITORY OF HAWAII RECOGNIZES AND HAS APPLIED
THE DOCTRINE OF THE LOST GRANT IN CONTROVERSIES BETWEEN THE TERRITORY
AND A CLAIMANT TO GOVERNMENT LAND.  PP. 272-273. 

11.  WHERE, AS IN THIS CASE, THERE WAS POWER IN THE KING OR THE
OFFICIALS OF THE KINGDOM OF HAWAII TO CONVEY A TITLE TO PALMYRA ISLAND
DURING THE YEARS IMMEDIATELY FOLLOWING ITS ANNEXATION TO THE KINGDOM OF
HAWAII AND PRIOR TO MANY OF THE PRIVATE CONVEYANCES IN RESPONDENTS'
CHAIN OF TITLE, THE DOCTRINE OF A LOST GRANT MAY BE APPLIED, IN
SUITABLE CIRCUMSTANCES, AND ITS EXISTENCE PRESUMED IN FAVOR OF
RESPONDENTS' PREDECESSORS IN TITLE.  P. 273. 

12.  IN ORDER FOR THE DOCTRINE OF A LOST GRANT TO BE APPLICABLE, THE
POSSESSION MUST BE UNDER A CLAIM OF RIGHT, ACTUAL, OPEN AND EXCLUSIVE. 
P. 273. 

13.  A CLAIM FOR GOVERNMENT LANDS STANDS UPON NO DIFFERENT PRINCIPLE
IN THEORY, SO LONG AS AUTHORITY EXISTS IN GOVERNMENT OFFICIALS TO
EXECUTE THE PATENT, GRANT OR CONVEYANCE; BUT, AS A PRACTICAL MATTER, IT
REQUIRES A HIGHER DEGREE OF PROOF.  PP. 273-274. 

14.  THE SUFFICIENCY OF ACTUAL AND OPEN POSSESSION OF PROPERTY TO
JUSTIFY THE PRESUMPTION OF A LOST GRANT IS TO BE JUDGED IN THE LIGHT OF
THE CHARACTER AND LOCATION OF THE PROPERTY.  P. 279. 

15.  WHILE UNINTERRUPTED AND LONG-CONTINUING POSSESSION OF A KIND
INDICATING THE OWNERSHIP OF THE FEE IS NECESSARY TO CREATE THE
PRESUMPTION OF A LOST GRANT, THE RULE DOES NOT REQUIRE A CONSTANT,
ACTUAL OCCUPANCY WHERE THE CHARACTER OF THE PROPERTY DOES NOT LEND
ITSELF TO SUCH USE.  P. 281. 

UNITED STATES V. FULLARD-LEO ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

AFTER CONGRESS HAD AUTHORIZED CONSTRUCTION OF NAVAL AVIATION
FACILITIES ON PALMYRA ISLAND BY THE ACT OF APRIL 25, 1939, 53 STAT.
590, THE GOVERNMENT SUED TO QUIET TITLE TO THE ISLAND.  THE DISTRICT
COURT DISMISSED THE SUIT.  66 F.SUPP.  774.  THE CIRCUIT COURT OF
APPEALS REVERSED, HOLDING THAT THE HAWAIIAN KINGDOM ACQUIRED TITLE IN
1862 AND THAT SUCH TITLE WAS CEDED TO THE UNITED STATES IN 1898.  133
F.2D 743.  THIS COURT DENIED CERTIORARI.  319 U.S. 748.  ON REMAND, THE
DISTRICT COURT DENIED THE GOVERNMENT'S CLAIM AND QUIETED TITLE TO THE
ISLAND IN RESPONDENTS.  66 F.SUPP.  782.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  156 F.2D 756.  THIS COURT GRANTED CERTIORARI.  329 U.S.
697.  AFFIRMED, P. 281. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT OF CERTIORARI WAS ALLOWED TO REVIEW A DECREE OF THE UNITED
STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMING A
DECREE OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF
HAWAII, 329 U.S. 697.  THE UNITED STATES BEGAN THE PRESENT PROCEEDINGS
BY A PETITION, FILED IN THE DISTRICT COURT, TO QUIET TITLE IN IT TO A
GROUP OF ISLETS IN THE PACIFIC, LONG KNOWN AS PALMYRA ISLAND.  PALMYRA
WAS ANNEXED TO THE KINGDOM OF HAWAII ON FEBRUARY 26, 1862, AND THE
UNITED STATES CLAIMS THAT IT REMAINED A PART OF THE GOVERNMENTAL LANDS
OF HAWAII AND PASSED TO THE UNITED STATES BY THE JOINT RESOLUTION OF
CONGRESS OF JULY 7, 1898, WHICH ANNEXED HAWAII TO THE UNITED STATES AND
ACCEPTED FOR THE UNITED STATES ALL PUBLIC, GOVERNMENT OR CROWN LANDS
AND ALL OTHER PUBLIC PROPERTY THEN BELONGING TO THE REPUBLIC OF
HAWAII.  FN1  THE LANDS AND SOVEREIGNTY OF THE KINGDOM OF HAWAII
PREVIOUSLY HAD PASSED DIRECTLY TO THE REPUBLIC OF HAWAII, THROUGH THE
INTERVENING PROVISIONAL GOVERNMENT. 

PALMYRA ISLAND IS AROUND ONE THOUSAND MILES SOUTH OF THE MAIN
HAWAIIAN GROUP.  IT IS THE FIRST CONSIDERABLE BODY OF LAND IN THAT
DIRECTION AND LIES BETWEEN THE HAWAIIAN ISLANDS AND SAMOA.  THE PALMYRA
GROUP IS A CORAL COVERED ATOLL OF ABOUT FIFTY ISLETS, SOME WITH TREES,
AND EXTENDS - REEFS, INTERVENING WATER AND LAND - 5 2/3 SEA MILES IN AN
EASTERLY AND WESTERLY DIRECTION AND 1 1/3 SEA MILES NORTHWARDLY AND
SOUGHWARDLY.  THE OBSERVATION SPOT FOR THE MAP IN THE CASE IS LATITUDE
5 DEGREE 52' 18" N., LONGITUDE 162 DEGREE 05' 55" W. THE BRITISH
ISLANDS OF WASHINGTON, FANNING AND CHRISTMAS LIE WITHIN A 500-MILE
RADIUS TO THE SOUTHEAST OF PALMYRA.  USE OF THE ISLANDS BY THE
RESPONDENTS AND THEIR PREDECESSORS IN TITLE WAS INTERMITTENT.  THE
QUESTION OF TITLE BECAME IMPORTANT IN 1939 WHEN CONGRESS AUTHORIZED THE
CONSTRUCTION AT PALMYRA OF NAVAL AVIATION FACILITIES AND APPROPRIATED
$1,100,000 FOR THEIR CONSTRUCTION.  53 STAT. 590.  NEGOTIATIONS WITH
THESE RESPONDENTS, AS OWNERS, WERE UNDERTAKEN IN 1938 BY THE NAVY
DEPARTMENT FOR A LEASE OF THE PROPERTY BUT WERE NOT COMPLETED.  THIS
SUIT WAS FILED IN 1939. 

THERE HAVE BEEN TWO TRIALS OF THIS CASE.  THE RECORDS OF BOTH ARE
BEFORE US, AS THE RECORD OF THE FIRST TRIAL WAS MADE A PART OF THE
SECOND.  CERTAIN CONTEMPORANEOUS WRITTEN EVIDENCE OF THE EARLY
TRANSACTIONS WAS PRODUCED. 

THE FINDINGS OF FACT IN THE FIRST TRIAL SHOW THAT TWO HAWAIIAN
CITIZENS, JOHNSON WILKINSON AND ZENAS BENT, MADE A REPRESENTATION
CONCERNING PALMYRA ISLAND TO THE KING AND THE CABINET COUNCIL.  THE
MINUTES OF A MEETING OF THE COUNCIL WHICH TOOK PLACE AT HONOLULU ON
FEBRUARY 26, 1862, ARE EXTANT.  THE "REPRESENTATION" HAS NOT BEEN
FOUND.  THE COUNCIL MINUTES SHOW THE FOLLOWING: 

"P. KAMEHAMEHA READ A REPRESENTATION FROM Z BENT & MR WILKINSON,
ABOUT THE ISLAND PALMYRA, REQUESTING THAT THE ISLAND SHOULD BE
CONSIDERED A HAWAIIAN POSSESSION & BE PLACED UNDER THE HAWAIIAN FLAG 

"AFTER SOME DISCUSSION IT PLEASED THE KING TO DIRECT THE MINISTER OF
THE INTERIOR, TO GRANT WHAT THE PETITIONERS APPLY FOR, FOLLOWING THE
PRECEDENT OF THE RESOLUTION REGARDING THE ISLAND CORNWALLIS & WITHOUT
EXCEEDING THE SAME." 

THE ACTION OF THE COUNCIL WAS COMMUNICATED TO WILKINSON AND BENT
THROUGH A LETTER BY THE MINISTER OF THE INTERIOR ON MARCH 1, 1862.  IN
THE LETTER IT WAS SAID THAT THE HAWAIIAN GOVERNMENT CONSENTED TO THE
TAKING POSSESSION OF PALMYRA "FOR THE PURPOSE OF INCREASING THE TRADE
AND COMMERCE OF THIS KINGDOM AS WELL AS OFFERING PROTECTION TO THE
INTERESTS OF ITS SUBJECTS."  ACCOMPANYING THE LETTER WAS A COMMISSION
EMPOWERING BENT "TO TAKE POSSESSION IN OUR NAME OF PALMYRA ISLAND." 
EXPLICIT DIRECTIONS WERE CONTAINED IN THE COMMISSION THAT BENT WAS TO
SIGN A DECLARATION AND LEAVE IT IN A BOTTLE BURIED AT THE FOOT OF A
POLE WRAPPED WITH THE HAWAIIAN FLAG.  THE COMMISSION WAS SIGNED JOINTLY
BY THE KING AND THE MINISTER OF INTERIOR.  ON JUNE 16, 1862, BENT
REPORTED THAT HE HAD CARRIED OUT THE COMMISSION AND LEFT A PAPER AS
DIRECTED.  IN THE SAME REPORT BENT TOLD OF THE TREES ON THE ISLAND AND
THE KIND OF VEGETABLES THAT WOULD GROW.  HE SAID THAT HE HAD ERECTED A
DWELLING HOUSE ON THE ISLAND AND A CURING HOUSE FOR BICHE DE MER, A
KIND OF EDIBLE SEA SLUG THAT IS PRIZED IN THE ORIENT.  IT ALSO SAID
THAT HE HAD LEFT FIVE MEN ON THE ISLAND AND PROPOSED TO RETURN IN ABOUT
TEN DAYS.  THEREUPON THE MINISTER OF THE INTERIOR DULY ISSUED A
PROCLAMATION ON JUNE 18, AS FOLLOWS: 

"WHEREAS, ON THE 15TH DAY OF APRIL, 1862, PALMYRA ISLAND, IN LATITUDE
5 DEGREE 50' NORTH, AND LONGITUDE 161 DEGREE 53' WEST, WAS TAKEN
POSSESSION OF, WITH THE USUAL FORMALITIES, BY CAPTAIN ZENAS BENT, HE
BEING DULY AUTHORIZED TO DO SO, IN THE NAME OF KAMEHAMEHA IV, KING OF
THE HAWAIIAN ISLANDS.  THEREFORE, THIS IS TO GIVE NOTICE, THAT THE SAID
ISLAND, SO TAKEN POSSESSION OF, IS HENCEFORTH TO BE CONSIDERED AND
RESPECTED AS PART OF THE DOMAIN OF THE KING OF THE HAWAIIAN ISLANDS." 

A FINDING WAS MADE THAT CERTAIN COMMENTS ON THE EXPEDITION WERE
PUBLISHED IN THE HONOLULU PAPERS BETWEEN THE REPRESENTATION TO THE
COUNCIL AND THE PROCLAMATION WHICH WAS ONLY IMPORTANT IN THE PRESENT
LITIGATION AS SHOWING A CONTEMPORANEOUS UNDERSTANDING THAT POSSESSION
WAS BEING TAKEN OF AN ISLAND AS PART OF THE DOMAIN OF THE KING OF THE
HAWAIIAN ISLANDS. 

AS SHOWN BY THE MINUTES OF THE CABINET COUNCIL, THE MINISTER OF THE
INTERIOR WAS DIRECTED TO GRANT THE APPLICATION OF BENT AND WILKINSON
"FOLLOWING THE PRECEDENT OF THE RESOLUTION REGARDING THE ISLAND
CORNWALLIS & WITHOUT EXCEEDING THE SAME."  THE MEANING OF THESE WORDS
IS NOT MADE CLEAR BY THE RECORD.  THE UNITED STATES CONTENDS THAT THE
WORDS LIMIT ANY RIGHTS OF BENT IN PALMYRA TO "A FIVE-YEAR RIGHT TO TAKE
GUANO," AND THAT HE NEVER WAS "GRANTED OR INTENDED TO BE GRANTED A FEE
SIMPLE TITLE."  THE TRIAL COURT THOUGHT THAT THE PURPOSE OF THE COUNCIL
MIGHT REASONABLY HAVE BEEN TO LIMIT THE AUTHORITY OF BENT AND WILKINSON
TO ISLANDS THAT WERE "NOT IN POSSESSION OF ANY OTHER GOVERNMENT OR ANY
OTHER PEOPLE."  THE REASON FOR THIS SUPPOSITION LIES IN THE FACT THAT
THE COMMISSION OF MAY 31, 1858, TO SAMUEL CLESSON ALLEN, WHO DISCOVERED
CORNWALLIS ISLAND FOR HAWAII, TO TAKE POSSESSION OF THE ISLAND
CONTAINED THE WORDS JUST QUOTED.  ON THE SAME DAY THAT THE COMMISSION
WAS ISSUED, A CONTRACT WAS MADE WITH EDWARD P. ADAMS FOR HIM TO TAKE
GUANO FOR FIVE YEARS FROM ANY ISLANDS ACQUIRED FOR HAWAII BY ALLEN IN
THE SCHOONER, "KALAMA."  ADAMS' REQUEST FOR THE GRANT OF A FEE TO A 7/8
INTEREST IN ANY ISLAND DISCOVERED, SO FAR AS SHOWN BY THE RECORD, WAS
NOT ACTED UPON BY THE HAWAIIAN LEGISLATIVE BODY. 

ALLEN TOOK POSSESSION OF CORNWALLIS ISLAND AND SUBMITTED A REPORT OF
HIS EXPEDITION ON JULY 12, 1858, TO THE MINISTER OF THE INTERIOR. 
THEREUPON AT A MEETING OF THE PRIVY COUNCIL ON JULY 27, 1858, THE
FOLLOWING RESOLUTION WAS PASSED: 

"RESOLVED THAT CORNWALLIS ISLAND IN LATITUDE 16.43 NORTH, AND
LONGITUDE 169.33 WEST FROM GREENWICH, AND KALAMA ISLAND, IN LATITUDE
16.44 NORTH AND LONGITUDE 169.21 WEST, HAVING BEEN TAKEN POSSESSION OF,
WITH THE USUAL FORMALITIES, ON THE 14TH AND 19TH OF JUNE 1858, BY
SAMUEL C. ALLEN ESQUIRE, IN THE NAME OF KAMEHAMEHA IV, THE SAID ISLANDS
ARE TO BE CONSIDERED AS PART OF HIS MAJESTY'S DOMAIN." 

IT WILL BE NOTED THAT THIS RESOLUTION IS SUBSTANTIALLY IN THE FORM OF
THE LATER PROCLAMATION IN REGARD TO PALMYRA. 

THE ANNEXATION OF CORNWALLIS ISLAND FAILED BECAUSE OF PRIOR DISCOVERY
BY THE UNITED STATES AND LATER, ON OCTOBER 16, 1858, THE MINISTER OF
THE INTERIOR CANCELLED THE CONTRACT WHICH HAD BEEN MADE WITH ADAMS. 

THUS IT WILL BE SEEN THAT THE MEANING OF THE MINUTES CONCERNING THE
ACQUISITION OF PALMYRA, FOLLOWING THE PRECEDENT OF CORNWALLIS, IS
UNCERTAIN.  THE RESOLUTION ANNEXING CORNWALLIS IS SUBSTANTIALLY THE
SAME AS THE PROCLAMATION CONCERNING PALMYRA.  THE COMMISSION
AUTHORIZING BENT TO TAKE POSSESSION OF PALMYRA IS SUBSTANTIALLY THE
SAME AS THE COMMISSION TO ALLEN THAT RESULTED IN THE DISCOVERY OF
CORNWALLIS.  THERE IS NO EVIDENCE OF A CONTRACT WITH BENT AND WILKINSON
SIMILAR TO THE GUANO CONTRACT MADE WITH ADAMS.  WE CONCLUDE THAT THERE
IS NOTHING IN THE REQUIREMENT THAT THE PALMYRA ACQUISITION SHOULD
FOLLOW THE PRECEDENT OF THE CORNWALLIS RESOLUTION TO INDICATE ANYTHING
MORE THAN THAT THE SOVEREIGNTY OVER PALMYRA WAS TO BE ACQUIRED FOR
HAWAII, AS STATED IN THE PROCLAMATION OF POSSESSION.  THERE IS NOTHING
TO LEAD US TO DISAGREE WITH THE TRIAL COURT'S FINDING AS TO PALMYRA, AS
FOLLOWS: 

"THE WORDS USED IN THE FORMALITY OF ANNEXATION AND PROCLAMATION NEED
NOT AND LIKELY WOULD NOT HAVE BEEN DIFFERENT WHETHER IT WAS THE
INTENTION THAT THE ACT OF ANNEXION SHOULD CONSTITUTE THE VESTING OF A
FEE SIMPLE TITLE TO THE LANDS IN THE KING, OR MERELY EXTEND SOVEREIGNTY
OVER THE DOMAIN ANNEXED." 

WE FIND NO EVIDENCE OF A CONSISTENT PLAN OR CUSTOM OF THE KINGDOM OF
HAWAII RELATING TO TITLE TO LANDS ON ISLANDS WHEN POSSESSION WAS TAKEN
FOR THE KINGDOM.  THE INSTRUCTIONS TO WILKINSON AND BENT WERE: 

"I AM AUTHORIZED TO STATE ON THE PART OF HIS MAJESTY'S GOVERNMENT
THAT THEY CONSENT TO THE TAKING POSSESSION OF THE ISLAND OF PALMYRA,
SITUATED IN LONGITUDE 161 DEGREE 53' WEST AND IN LATITUDE 6 DEGREE 4
NORTH, AS DESCRIBED BY YOU IN SAID MEMORIAL; FOR THE PURPOSE OF
INCREASING THE TRADE AND COMMERCE OF THIS KINGDOM AS WELL AS OFFERING
PROTECTION TO THE INTERESTS OF ITS SUBJECTS." 

THE TRIAL COURT ENDED ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW ON
THE FIRST TRIAL IN THESE WORDS: 

"MY CONTROLLING FINDING IS, THAT THE SOVEREIGNTY OF THE UNITED STATES
WAS EXTENDED OVER PALMYRA ISLAND BY ANNEXATION, BUT THE REPUBLIC OF
HAWAII DID NOT IN FACT OR IN FORM ASSERT FEE SIMPLE TITLE TO THIS LAND
AT THE TIME OF ANNEXATION, OR AT ANY OTHER TIME, AND IT IS SUFFICIENT
TO SAY, ONLY, AS A

                              CONCLUSION 

I AM DECIDEDLY OF OPINION THAT PETITIONER (THE UNITED STATES ) DOES
NOT EXHIBIT A TITLE WHICH CAN BE SUSTAINED IN THE COURTS OF THE UNITED
STATES, AND THEREFORE, IS NOT ENTITLED TO ANY RELIEF PRAYED FOR." 

ON APPEAL, THE COURT OF APPEALS REVERSED.  UNITED STATES V. FULLARD
LEO, 133 F.2D 743.  IT CONCLUDED THAT THE COMMISSION TO BENT,
HERETOFORE REFERRED TO, 

"MAKES IT ABUNDANTLY CLEAR THAT BENT WAS MERELY ACTING AS AGENT OF
THE KING.  UNDER THE PRINCIPLES OF INTERNATIONAL LAW, THE TAKING OF
POSSESSION BY BENT PERFECTED THE TITLE OF THE KING.  1 HYDE,
INTERNATIONAL LAW, 167 SEC. 100; 1 OPPENHEIM, INTERNATIONAL LAW, 276
278, SECS. 221-224; MARTIN V. WADDELL, 16 PET. 367, 409, 41 U.S. 367,
409, 10 L. ED. 997.  NOTHING IN THE RESOLUTION OR THE LETTER REFERRED
TO IS CONTRARY TO THAT VIEW."  ID., 747. 

IT SAID THERE WAS NO PROOF OF SUBSEQUENT ALIENATION BY ANY SOVEREIGN
AND THAT THE EVIDENCE WOULD NOT SUPPORT A FINDING OF A LOST GRANT. 

ON REMAND OF THIS CASE ON THE FIRST APPEAL, THE TRIAL COURT ENTERED
FURTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW.  IT HELD: 

"I BELIEVE AND SO HOLD THAT THE EVIDENCE IN THIS CASE IS NOT ONLY
ENTIRELY CONSISTENT WITH BUT CAN REASONABLY AND LOGICALLY BE ACCOUNTED
FOR ONLY UPON THE PRESUMPTION THAT A GRANT ISSUED TO BENT AND WILKINSON
BY WHICH THE HAWAIIAN GOVERNMENT PARTED WITH ITS TITLE." 

THIS CAN ONLY MEAN THAT IN THE TRIAL COURT'S OPINION, THE KINGDOM OF
HAWAII ACQUIRED SOVEREIGNTY OVER PALMYRA AND BENT AND WILKINSON
OBTAINED THE PRIVATE OWNERSHIP OF THE ISLETS.  THIS HOLDING WAS
AFFIRMED ON APPEAL.  UNITED STATES V. FULLARD-LEO, 156 F.2D 756. 
ALTHOUGH ONLY ONE OF THE QUESTIONS PRESENTED ON CERTIORARI, OUR
DETERMINATION THAT THE ACTION OF THE CIRCUIT COURT OF APPEALS IS
CORRECT DISPOSES OF THE ENTIRE CASE. 

HAWAII HAS BEEN A TERRITORY OF THE UNITED STATES SINCE THE JOINT
RESOLUTION OF ANNEXATION OF JULY 7, 1898.  30 STAT. 750.  BEFORE THAT
THE ISLANDS COMPOSING THE PRESENT TERRITORY OF HAWAII HAD EXISTED
INDEPENDENT FROM THE REST OF THE WORLD AND SOVEREIGN AS FAR BACK AS
HISTORY AND LOCAL TRADITION REACHES.  FN2  WHEN AMERICAN CHRISTIAN
MISSIONARIES ARRIVED AT THE ISLANDS IN 1820, THE HAWAIIAN CIVILIZATION
MERGED WITH THAT OF THE REST OF THE KNOWN WORLD.  AT THAT TIME THE
PRINCIPAL ISLANDS OF THE PRESENT TERRITORY HAD BEEN UNITED A FEW YEARS
BEFORE INTO A MONARCHY UNDER A STRONG LEADER, KAMEHAMEHA I.
NOTWITHSTANDING HIS DEATH, A SHORT TIME BEFORE THE COMING OF THE
MISSIONARIES, THE KINGDOM WELDED BY HIM FROM THE SEVERAL ISLAND
COMMUNITIES CONTINUED AS A RECOGNIZED MONARCHY UNDER HIS SUCCESSORS
UNTIL ITS FALL IN 1893.  A PROVISIONAL GOVERNMENT SUCCEEDED THE
MONARCHY AND WAS IN TURN FOLLOWED BY THE REPUBLIC OF HAWAII, THE
FOREIGN GOVERNMENTAL AUTHORITY MENTIONED IN THE CONGRESSIONAL
RESOLUTION OF ANNEXATION AS CEDING HAWAII TO THE UNITED STATES.  FROM
KAMEHAMEHA I TO ANNEXATION, HAWAII MADE STEADY ADVANCES IN CONFORMING
ITS LAWS AND ECONOMY TO THE MANNER OF LIFE OF THE OTHER CIVILIZED
NATIONS OF THE WORLD.    AT THE TIME OF THE ANNEXATION OF PALMYRA
ISLAND BY THE KINGDOM OF HAWAII, APRIL 15, 1862, THAT MONARCHY
POSSESSED A SYSTEM OF LAND OWNERSHIP AND LAND LAWS THAT WERE ADEQUATE
TO ESTABLISH TITLES AND MAINTAIN A PROPER RECORD THEREOF IN ACCORDANCE
WITH THE CONTEMPORANEOUS PRACTICES OF ANGLO-AMERICAN LAW.  THE EARLIER
NINETEENTH CENTURY LAWS OF THE KINGDOM HAD BEEN CODIFIED INTO A CIVIL
CODE IN 1859.  IN THIS CODE THE MINISTER OF THE INTERIOR WAS GIVEN
SUPERVISION OF THE PUBLIC LANDS WITH POWER TO DISPOSE OF THEM WITH THE
AUTHORITY OF THE KING IN CABINET COUNCIL.  CIVIL CODE OF THE HAWAIIAN
ISLANDS, 1859, C. VII, ART. I. BY C. XXVI, ART. LI, A BUREAU OF
CONVEYANCES WITH BOOKS OF REGISTRY WAS REQUIRED AND BY C. XXV, ART. L,
SECS. 1241-48, PROVISION WAS MADE FOR PROBATE AND ADMINISTRATION. 
UNDER TREATIES WITH FOREIGN NATIONS, HAWAII PERMITTED THE SALE OF LOCAL
LANDS OF DECEASED ALIENS AND THE WITHDRAWAL OF THE PROCEEDS BY THEIR
HEIRS.  ID., PP. 461 AND 471. 

KAMEHAMEHA I, AS KING AND CONQUEROR, WAS RECOGNIZED BY HAWAIIAN LAW
AS THE SOLE OWNER OF ALL THE SOIL OF THE ISLANDS.  THROUGH A SYSTEM OF
FEUDAL TENURES, NOT TOO CLEARLY DEFINED, LARGE PORTIONS OF THE ROYAL
DOMAINS WERE DIVIDED AMONG THE CHIEFS BY KAMEHAMEHA I AND HIS
SUCCESSORS AND THIS PROCESS OF INFEUDATION CONTINUED TO THE LOWEST
CLASS OF TENANTS.  THIS SYSTEM OF TENURES CREATED DISSATISFACTION AMONG
THE CHIEFS AND PEOPLE BECAUSE OF THE BURDENS OF SERVICE AND PRODUCE
THAT THE INFERIOR OWED TO THE SUPERIOR.  CONSEQUENTLY BY A SERIES OF
ROYAL AND LEGISLATIVE STEPS, THE KING AND THE HOUSE OF NOBLES AND
REPRESENTATIVES PROVIDED FOR A LAND SYSTEM WHICH FINALLY RESULTED IN A
SEPARATION OF THE LANDS INTO LANDS OF THE GOVERNMENT, THE CROWN AND THE
PEOPLE.  FN3  THIS PURPOSE FINALLY WAS MANIFESTED BY THE ACT OF JUNE 7,
1848.  FN4  BY THIS ACT, MUCH OF THE LAND OF HAWAII WAS ALLOCATED
BETWEEN THE CROWN AND THE GOVERNMENT.  THIS DIVISION OF LANDS BECAME
KNOWN AS "THE GREAT MAHELE."  FN5  NOTHING HAS BEEN CALLED TO OUR
ATTENTION LIMITING THE POWER OF THE KING TO GRANT CROWN LANDS  FN6
PRIOR TO THE ACT OF JANUARY 3, 1865.  COMPARE JOVER V. INSULAR
GOVERNMENT, 221 U.S. 623, 633.  THE REQUIREMENT THAT THE MINISTER OF
THE INTERIOR MAINTAIN A RECORD OF ALL ROYAL GRANTS REFERS ONLY TO THOSE
FOR GOVERNMENT LAND.  CIVIL CODE, 1859, SEC. 44.  BY ENACTMENT OF THE
KING AND THE LEGISLATIVE ASSEMBLY IN 1865, THE CROWN LANDS BECAME
INALIENABLE EXCEPT BY FUTURE LEGISLATIVE ACTION.  SEE "CROWN LANDS,"
REVISED LAWS OF HAWAII, 1905, PP. 1226-30.  THE PRIVATE LANDS OF THE
KING OR CROWN LANDS, CONFIRMED TO HIM BY THE ACT OF JUNE 7, 1848, WERE
TAKEN OVER BY THE GOVERNMENT IN 1895 AND THUS BECAME GOVERNMENT LANDS,
ALSO. 

IN ORDER TO ESTABLISH PRIVATE TITLE TO LANDS IN THE FORMER TENANTS, A
BOARD OF COMMISSIONERS TO QUIET LAND TITLES WAS CREATED IN 1846.  FN7
THIS COMMISSION ADOPTED "PRINCIPLES" FOR ADJUDICATION OF CLAIMS.  THESE
WERE APPROVED BY THE LEGISLATIVE COUNCIL THE SAME YEAR AND THROW STRONG
LIGHT ON THE HAWAIIAN LAND SYSTEM SHORTLY BEFORE THE ANNEXATION OF
PALMYRA.  FN8  THIS COMMISSION DEALT NOT ONLY WITH LANDS INCLUDED IN
THE GREAT MAHELE BUT ALSO WITH LANDS THAT WERE NOT MENTIONED IN THAT
ACT AND ESTABLISHED TITLES FOR SUCH LANDS.  IT APPARENTLY CONTINUED
UNTIL MARCH 31, 1855.  FN9 AFTER THE END OF THE COMMISSION'S WORK, THE
MINISTER OF THE INTERIOR AND THE KING IN CABINET COUNCIL WERE CHARGED
MAY 17, 1859, WITH RESPONSIBILITY FOR GOVERNMENT LANDS AND THE
MAINTENANCE OF RECORDS FOR ALL ROYAL CONVEYANCES.  FN10  THIS SUMMARY
OF THE HAWAIIAN LAND LAWS AT THE TIME OF THE ANNEXATION OF PALMYRA
BRINGS BEFORE US THE PATTERN OF LAND OWNERSHIP AND THE SYSTEM OF
RECORDATION OF TITLES, BOTH THOSE STEMMING FROM ROYAL GRANTS OF
GOVERNMENT LANDS AND FROM PRIVATE TRANSACTIONS.  THE CLAIM OF
RESPONDENTS TO PALMYRA MUST BE ADJUDICATED WITH THIS SITUATION IN
MIND.  WE ARE NOT DEALING WITH AN EXPLORER'S CLAIM OF TITLE TO LANDS OF
A SAVAGE TRIBE OR THAT OF A DISCOVERER OF A HITHERTO UNKNOWN ISLET. 

WHETHER WE DISTINGUISH BETWEEN CROWN AND GOVERNMENT LANDS, HOWEVER,
SEEMS IMMATERIAL.  NO RECORD APPEARS OF ANY CONVEYANCE FROM KING OR
MINISTER TO ANY LAND ON PALMYRA.  WE ASSUME THE LAW REQUIRED A PUBLIC
RECORD FOR ANY SUCH CONVEYANCE FROM EITHER FROM THE TIME POSSESSION WAS
TAKEN FOR HAWAII.  IT IS CLEAR THAT BOTH THE KING AND THE MINISTER OF
THE INTERIOR WITH THE AUTHORITY OF THE KING IN THE CABINET COUNCIL HAD
POWER TO CONVEY THE LANDS TO PRIVATE CITIZENS.  CIVIL CODE, 1859, SECS.
39-48; ACT OF JANUARY 3, 1865, REV. LAWS, HAWAII, 1905, P. 1226, SEC.
3.  WE ASSUME FURTHER THAT THE FORMAL CLAIM TO PALMYRA FOR THE HAWAIIAN
KINGDOM MADE BY BENT, PURSUANT TO HIS COMMISSION, GAVE HAWAII NOT ONLY
SOVEREIGNTY OVER PALMYRA BUT ALSO THE POWER TO GRANT THE LANDS OF THE
NEWLY ANNEXED ISLETS AS PART OF ITS PUBLIC LANDS TO PRIVATE OWNERS. 

IN THE CIRCUMSTANCES HERETOFORE DESCRIBED, WERE THE DISTRICT AND
CIRCUIT COURTS JUSTIFIED IN QUIETING TITLE TO PALMYRA IN RESPONDENTS ON
THE THEORY OF A LOST GRANT?  WE TAKE JUDICIAL NOTICE OF THE LAWS OF
HAWAII PRIOR TO ITS ANNEXATION AS A PART OF OUR DOMESTIC LAWS.  FN11
THE RULES UNDER WHICH THE HAWAIIAN PEOPLE LIVED UNDER THE MONARCHY OR
REPUBLIC DEFINE, FOR THE SOVEREIGN OF TODAY, THE RIGHTS ACQUIRED DURING
THOSE PERIODS.  WHILE IN MATTERS OF LOCAL LAW THE FEDERAL COURTS DEFER
TO THE DECISIONS OF THE TERRITORIAL COURTS,  FN12  WE ARE DEALING HERE
WITH A PROBLEM OF FEDERAL LAW - THE UNITED STATES SEEKS TO QUIET ITS
TITLE TO LAND NOW CLAIMED BY VIRTUE OF HAWAIIAN CESSION.  THE FEDERAL
RIGHTS ARE PARTLY DEPENDENT UPON THE HAWAIIAN LAW PRIOR TO ANNEXATION. 
THEREFORE WHILE THE HAWAIIAN LAW, AS IT EXISTED BEFORE THE ANNEXATION
OF THE TERRITORY, IS CONTROLLING ON RIGHTS IN LAND THAT ARE CLAIMED TO
HAVE HAD THEIR BEGINNINGS THEN THE FEDERAL COURTS CONSTRUE THAT LAW FOR
THEMSELVES.  THE FEDERAL COURTS CANNOT BE FORECLOSED BY DETERMINATIONS
OF THE HAWAIIAN LAW BY THE HAWAIIAN COURTS.  THEY WILL LEAN HEAVILY
UPON THE HAWAIIAN DECISIONS AS TO THE HAWAIIAN LAW BUT THEY ARE NOT
BOUND TO FOLLOW THOSE DECISIONS WHERE A CLAIMED TITLE TO PUBLIC LANDS
OF THE UNITED STATES IS INVOLVED.  FN13  THE ROOTS OF RESPONDENTS'
CLAIM SPRING FROM HAWAIIAN LAW.  AS THEIR CLAIM TO PALMYRA CONTINUED
AFTER THE UNITED STATES ACQUIRED IN 1898 WHATEVER RIGHTS HAWAII THEN
HAD, THE VALIDITY OF RESPONDENTS' CLAIM MUST BE JUDGED, ALSO, IN THE
LIGHT OF THE PUBLIC LAND LAW OF THE UNITED STATES. 

THE PRESUMPTION OF A LOST GRANT TO LAND HAS RECEIVED RECOGNITION AS
AN APPROPRIATE MEANS TO QUIET LONG POSSESSION.  IT RECOGNIZES THAT
LAPSE OF TIME MAY CURE THE NEGLECT OR FAILURE TO SECURE THE PROPER
MUNIMENTS OF TITLE, EVEN THOUGH THE LOST GRANT MAY NOT HAVE BEEN IN
FACT EXECUTED.  FN14  THE DOCTRINE FIRST APPEARED IN THE FIELD OF
INCORPOREAL HEREDITAMENTS BUT HAS BEEN EXTENDED TO REALTY.  FN15  THE
RULE APPLIES TO CLAIMS TO LAND HELD ADVERSELY TO THE SOVEREIGN.  FN16
THE CASE FROM THIS COURT MOST OFTEN CITED IS UNITED STATES V. CHAVES,
159 U.S. 452.  IN THAT CASE, THERE WAS EVIDENCE OF THE PRIOR EXISTENCE
OF THE LOST GRANT.  THE TITLE OF THE CLAIMANTS WAS UPHELD BUT THIS
COURT THEN STATED, AT P. 464, CONFORMABLY TO FLETCHER V. FULLER,
SUPRA: 

"WITHOUT GOING AT LENGTH INTO THE SUBJECT, IT MAY BE SAFELY SAID THAT
BY THE WEIGHT OF AUTHORITY, AS WELL AS THE PREPONDERANCE OF OPINION, IT
IS THE GENERAL RULE OF AMERICAN LAW THAT A GRANT WILL BE PRESUMED UPON
PROOF OF AN ADVERSE, EXCLUSIVE, AND UNINTERRUPTED POSSESSION FOR TWENTY
YEARS, AND THAT SUCH RULE WILL BE APPLIED AS A PRESUMPTIO JURIS ET DE
JURE, WHEREVER, BY POSSIBILITY, A RIGHT MAY BE ACQUIRED IN ANY MANNER
KNOWN TO THE LAW." 

SEE UNITED STATES V. PENDELL, 185 U.S. 189, 200-201. 

A FEW YEARS LATER, IN UNITED STATES V. CHAVEZ, 175 U.S. 509, THE
PROBLEM OF THE LOST GRANT AGAIN AROSE.  IN THIS CASE, AS TO ONE TRACT,
CASE NO. 38 AT 516, THE EXISTENCE OF THE GRANT TO JOAQUIN SEDILLO WAS
NOT SHOWN EXCEPT BY A STATEMENT OF JANUARY 11, 1734, THAT THE TRACT
CONVEYED "WAS ACQUIRED BY HIS (AFFIANT'S) FATHER IN PART BY GRANT IN
THE NAME OF HIS MAJESTY (THE KING OF SPAIN) ...  " P. 514.  IN
REFERRING TO THE RECOGNITION OF TITLE IN THE PRIVATE OWNERS, THIS COURT
SAID, AT 520: 

"SUCCEEDING TO THE POWER AND OBLIGATIONS OF THOSE GOVERNMENTS, MUST
THE UNITED STATES DO SO? THIS IS INSISTED BY THEIR COUNSEL, AND YET
THEY HAVE FELT AND EXPRESSED THE EQUITIES WHICH ARISE FROM THE
CIRCUMSTANCES OF THE CASE.  WHENCE ARISE THOSE EQUITIES?  THAT WHICH
ESTABLISHES THEM MAY ESTABLISH TITLE.  UPON A LONG AND UNINTERRUPTED
POSSESSION, THE LAW BASES PRESUMPTIONS AS SUFFICIENT FOR LEGAL
JUDGMENT, IN THE ABSENCE OF REBUTTING CIRCUMSTANCES, AS FORMAL
INSTRUMENTS, OR RECORDS, OR ARTICULATE TESTIMONY.  NOT THAT FORMAL
INSTRUMENTS OR RECORDS ARE UNNECESSARY, BUT IT WILL BE PRESUMED THAT
THEY ONCE EXISTED AND HAVE BEEN LOST.  THE INQUIRY THEN RECURS, DO SUCH
PRESUMPTIONS ARISE IN THIS CASE AND DO THEY SOLVE ITS QUESTIONS?" 

THEREAFTER THE COURT, 524, REFERRED TO THE LONG POSSESSION AND
SUSTAINED THE CLAIMANTS IN THEIR TITLE. 

CARINO V. INSULAR GOVERNMENT, 212 U.S. 449, WAS DECIDED ON A WRIT OF
ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.  AN IGOROT
CHIEFTAIN SOUGHT TO REGISTER HIS LAND IN BENGUET PROVINCE, LONG HELD BY
HIS FAMILY.  UNDER CLAIM OF SUCCESSION TO THE SPANISH RIGHTS BY THE
TREATY OF PARIS AND AN EXCEPTION IN THE ACT OF JULY 1, 1902, PROVIDING
FOR TEMPORARY ADMINISTRATION OF CIVIL GOVERNMENT IN THE PHILIPPINES,
FN17  THE LAND HAD BEEN TAKEN FOR PUBLIC PURPOSES BY THE UNITED STATES
AND THE PHILIPPINE GOVERNMENT.  OBJECTION WAS MADE BY THE TWO
GOVERNMENTS AND SUSTAINED BY THE SUPREME COURT OF THE PHILIPPINES ON
THE GROUND THAT THE APPLICANT DID NOT SHOW A GRANT FROM ANY SOVEREIGN. 
THIS COURT THOUGHT IT UNJUST, IN THE CIRCUMSTANCES, TO REQUIRE A NATIVE
TO HAVE A PAPER TITLE. 

"IT MIGHT, PERHAPS, BE PROPER AND SUFFICIENT TO SAY THAT WHEN, AS FAR
BACK AS TESTIMONY OR MEMORY GOES, THE LAND HAS BEEN HELD BY INDIVIDUALS
UNDER A CLAIM OF PRIVATE OWNERSHIP, IT WILL BE PRESUMED TO HAVE BEEN
HELD IN THE SAME WAY FROM BEFORE THE SPANISH CONQUEST, AND NEVER TO
HAVE BEEN PUBLIC LAND."  212 U.S. AT 460. 

THE PHILIPPINE JUDGMENT WAS REVERSED. 

THE LAW OF THE TERRITORY OF HAWAII RECOGNIZES AND HAS APPLIED THE
DOCTRINE OF THE LOST GRANT IN CONTROVERSIES BETWEEN A CLAIMANT TO
GOVERNMENT LAND AND THE TERRITORY.  IN RE TITLE OF KIOLOKU (1920), 25
HAW.  357.  THE TRACT INVOLVED IN THAT LITIGATION HAD BEEN HELD IN
"ACTUAL, OPEN, CONTINUOUS AND UNINTERRUPTED POSSESSION" SINCE 1870.  NO
RECORD OR EVIDENCE OF A GRANT BY ANY GOVERNMENTAL AUTHORITY WAS
PRODUCED.  AFTER A DISCUSSION OF SEVERAL OF THE CASES JUST REFERRED TO
AND OTHERS, IT WAS HELD THAT THE DOCTRINE OF THE LOST GRANT, IN CLAIMS
TO LAND AGAINST THE STATE, WAS THE "LAW OF THE LAND" IN HAWAII.  ON
APPEAL THE HOLDING WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS FOR THE
NINTH CIRCUIT.  THAT COURT SAID: 

"UNDER THE RULE OF LAW APPLICABLE TO THE CASE, AS WE FIND IT, IT WAS
NOT NECESSARY THAT THE APPELLEE SHOULD PROVE THE PROBABILITY THAT A
GRANT DID IN FACT ISSUE TO ONE OF ITS PREDECESSORS IN INTEREST.  IT WAS
ENOUGH TO SHOW, AS WE THINK IT WAS SHOWN, THAT THERE WAS A LEGAL
POSSIBILITY OF A GRANT."  TERRITORY OF HAWAII V. HUTCHINSON SUGAR
PLANTATION CO., 272 F. 856, 860. 

WE ARE THEREFORE OF THE OPINION THAT WHERE, AS HERE, THERE WAS POWER
IN THE KING OR THE OFFICIALS OF THE KINGDOM OF HAWAII TO CONVEY A TITLE
TO PALMYRA  FN18  DURING THE YEARS IMMEDIATELY FOLLOWING ITS ANNEXATION
TO THE KINGDOM OF HAWAII AND PRIOR TO MANY OF THE PRIVATE CONVEYANCES
HEREINAFTER REFERRED TO, THE DOCTRINE OF A LOST GRANT MAY BE APPLIED,
IN SUITABLE CIRCUMSTANCES, AND ITS EXISTENCE PRESUMED IN FAVOR OF THE
PREDECESSORS IN TITLE OF THESE RESPONDENTS.  IN ORDER FOR THE DOCTRINE
OF A LOST GRANT TO BE APPLICABLE, THE POSSESSION MUST BE UNDER A CLAIM
OF RIGHT, ACTUAL, OPEN AND EXCLUSIVE.  FN19  A CHAIN OF CONVEYANCES IS
IMPORTANT.  SO IS THE PAYMENT OF TAXES.  FN20  A CLAIM FOR GOVERNMENT
LANDS STANDS UPON NO DIFFERENT PRINCIPLE IN THEORY SO LONG AS AUTHORITY
EXISTS IN GOVERNMENT OFFICIALS TO EXECUTE THE PATENT, GRANT OR
CONVEYANCE.  AS A PRACTICAL MATTER IT REQUIRES A HIGHER DEGREE OF PROOF
BECAUSE OF THE DIFFICULTY FOR A STATE TO PROTECT ITS LANDS FROM USE BY
THOSE WITHOUT RIGHT.  WE TURN THEN TO THE CIRCUMSTANCES RELIED UPON BY
THE LOWER COURTS AS SUSTAINING RESPONDENTS' CONTENTIONS IN RESPECT TO
THEIR CLAIM TO AND OCCUPATION OF PALMYRA. 

IN THE EARLIER PART OF THIS OPINION, WE HAVE SET OUT IN DETAIL THE
EXISTING GOVERNMENTAL RECORD OF THE PROCEEDINGS LEADING UP TO THE
ANNEXATION OF PALMYRA BY THE KINGDOM OF HAWAII IN 1862.  NO POSITIVE
EVIDENCE WAS PRODUCED AS TO ANY GRANT OF PALMYRA BY HAWAII PRIOR TO THE
LATTER'S ANNEXATION BY THE UNITED STATES IN 1898.  NOR DOES THE RECORD
SHOW THE EXERCISE OF ANY DIRECT GOVERNMENTAL AUTHORITY OVER PALMYRA. 
IN 1905, UPON A REQUEST OF THE GOVERNOR FOR AN OPINION CONCERNING THE
JURISDICTION OF HAWAII OVER ISLANDS TO THE NORTHWEST OF KAUAI, THE
ATTORNEY GENERAL ANSWERED THAT HAWAII HAD POWER TO LEASE THEM.  IT WILL
BE NOTED FROM THE SHORT OPINION IN THE MARGIN THAT PALMYRA, THOUGH OVER
1000 MILES TO THE SOUTHEAST OF KAUAI, WAS INCLUDED.  NOTHING APPEARS AS
TO ANY FORMER OR SUBSEQUENT EXERCISE BY HAWAII OF A POWER TO LEASE
PALMYRA.  FN21  NO TAXES WERE COLLECTED FROM THOSE WHO CLAIMED TO BE
OWNERS PRIOR TO 1885 WHEN THE PACIFIC NAVIGATION COMPANY PAID TAXES TO
HAWAII ON PALMYRA FOR THREE YEARS.  ASSESSMENTS HAVE BEEN MADE ANNUALLY
SINCE 1911 AND TAXES HAVE BEEN PAID REGULARLY SINCE THEN BY THE
CLAIMANTS TO THE PROPERTY.  AT THE TIME OF ANNEXATION BY THE UNITED
STATES, PROVISION WAS MADE FOR COMMISSIONERS TO RECOMMEND TO CONGRESS
LEGISLATION CONCERNING THE HAWAIIAN ISLANDS.  30 STAT. 750.  A FULL
REPORT WAS MADE WHICH WAS TRANSMITTED TO CONGRESS BY THE PESIDENT ON
DECEMBER 6, 1898.  U.S. SENATE DOCUMENT NO. 16, 55TH CONG., 3D SESS.
IT DEALT WITH THE PUBLIC DOMAIN AND SHOWS THAT THE CROWN LANDS HAD BEEN
TAKEN OVER BY THE HAWAIIAN GOVERNMENT IN 1894, P. 4 ET SEQ. IN 1894,
THE CROWN LANDS WERE IN AREA 971,463 ACRES.  THERE WERE NO CROWN LANDS
SHOWN ON THE SMALLER ISLANDS.  P. 102.  AN APPENDIX SHOWS THE
GOVERNMENT LANDS AS OF SEPTEMBER 30, 1897, AND LISTS IN ACRES AND
VALUES THOSE OF THE PRINCIPAL ISLANDS OF THE GROUP.  PP. 47-51.  THEY
AMOUNTED, IN ACRES, TO 1,744,713.  IN THE RECAPITULATION, THOUGH NOT
INCLUDED IN THE LISTS OF PUBLIC LANDS, THERE IS AN ITEM THAT MAY
INCLUDE PALMYRA.  IT READS, "LAYSAN, ETC., ISLANDS, ACRES - , VALUE
$40,000."  AT ANOTHER POINT, P. 4, UNDER "AREA AND POPULATION" APPEARS
THE ONLY REFERENCE TO PALMYRA.  THE REFERENCE IN ITS SETTING APPEARS IN
THE MARGIN.  FN22 

RESPONDENTS' CLAIM OF TITLE EXISTS IN A CONSISTENT SERIES OF
TRANSACTIONS BEGINNING IN 1862 WITH A DEED TO WILKINSON FROM BENT.  THE
DEED WAS RECORDED IN THE REGISTRY OF CONVEYANCES OF HAWAII IN 1885.  IT
CONVEYED ALL BENT'S "RIGHT, TITLE AND INTEREST IN AND TO ALL THE
PROPERTY OF WHATEVER DESCRIPTION NOW LYING OR SITUATED ON PALMYRA
ISLAND IN THE PACIFIC OCEAN WHICH ISLAND BY A PROCLAMATION OF HIS
MAJESTY KAMEHAMEHA IV AT PRESENT BELONGS TO THE HAWAIIAN KINGDOM.  AND
ALSO ALL MY RIGHT, TITLE AND INTEREST IN AND TO ANY PARTNERSHIP
PROPERTY THAT I MAY HAVE AN INTEREST IN AS CO-PARTNER WITH THE SAID
JOHNSON WILKINSON."  THE LANGUAGE, WE THINK, IS CONSISTENT WITH AN
INTENTION TO CONVEY A CLAIMED INTEREST IN THE REALTY "LYING OR SITUATED
ON PALMYRA ISLAND" AS WELL AS ANY PARTNERSHIP PERSONAL PROPERTY. 
THEREAFTER WILKINSON DIED IN NEW ZEALAND IN 1866 AND LEFT A WILL
DEVISING TO HIS WIFE, KALAMA: 

"AND ALSO ALL MY LANDED FREEHOLD AND LEASEHOLD ESTATES IN THE
PROVINCE OF AUCKLAND AFORESAID, AT HONOLULU IN THE SANDWICH ISLANDS IN
THE ISLAND OF PALMYRA IN THE SOUTH SEA ISLANDS AND WHERESOEVER THE SAME
MAY BE SITUATED AND WHETHER IN THE SAID COLONY OF NEW ZEALAND OR
ELSEWHERE TO HOLD SUACH REAL AND PERSONAL ESTATE UNTO THE SAID KALAMA
ABSOLUTELY AND FOREVER." 

THE WILL WAS PROVEN AND REGISTERED IN NEW ZEALAND AND WAS LATER
ADMITTED TO PROBATE IN HAWAII IN 1898.  IN 1885, AFTER THE DEATH OF
KALAMA, TWO OF HER HEIRS TRANSFERRED ALL THEIR "RIGHT, TITLE AND
INTEREST AS HEIRS AT LAW OF THE SAID KALAMA OR OTHERWISE, IN AND TO THE
ISLAND OF PALMYRA" TO ONE WILCOX, WHO CONVEYED TO THE PACIFIC
NAVIGATION COMPANY.  BY A SERIES OF SOME FOUR MESNE CONVEYANCES BETWEEN
1888 AND 1911 THE INTEREST OF PACIFIC NAVIGATION COMPANY IN THE ISLAND
WAS EVENTUALLY TRANSFERRED TO ONE HENRY COOPER.  A THIRD HEIR OF
KALAMA'S TRANSFERRED HIS RIGHTS IN THE ISLAND TO ONE RINGER, WHOSE
CHILDREN TRANSFERRED THEIR RIGHTS IN THE ISLAND TO HENRY COOPER IN
1912.  RINGER'S WIDOW IN 1912 SOLD ALL HER RIGHT, TITLE, AND INTEREST
IN THE ISLAND TO MAUI AND CLARKE. 

IN 1912 COOPER PETITIONED THE LAND COURT OF HAWAII TO CONFIRM TITLE
IN HIM.  MAUI AND CLARKE CONTESTED THE PETITION, CLAIMING TO OWN A
DOWER INTEREST IN AN "UNDIVIDED ONE-THIRD OF THE ISLAND."  THROUGH ITS
ATTORNEY GENERAL, THE TERRITORY OF HAWAII ANSWERED THE PETITION AND
DISCLAIMED "ANY INTEREST IN, TO OR CONCERNING" PALMYRA.  THE COURT
DECREED THAT COOPER WAS THE OWNER IN FEE SIMPLE OF THE ISLAND SUBJECT
TO THE DOWER INTEREST OF ANNIE RINGER HELD BY MAUI AND CLARKE.  FN23
IN 1920, COOPER LEASED THE ISLAND TO MENG AND WHITE WHO ASSIGNED THE
LEASE TO THE PALMYRA COPRA COMPANY.  IN 1922 COOPER SOLD FOR $15,000.00
ALL BUT TWO OF THE ISLETS TO MR. AND MRS. FULLARD-LEO, RESPONDENTS
HERE, WHO HAD TAKEN OVER THE LEASE.  FROM THE FOREGOING, IT WILL BE
APPARENT THAT FROM 1862 TO THE BREAKDOWN OF NEGOTIATIONS A PAPER TITLE
EXISTED IN RESPONDENTS AND THEIR PREDECESSORS IN TITLE, EXCEPT FOR THE
GRANT FROM THE KINGDOM, AND THAT THERE HAS BEEN A RECORD OF THE
CONVEYANCES IN HAWAII SINCE 1885.  THERE WAS, DURING THESE YEARS, A
CLAIM OF RIGHT TO EXCLUSIVE POSSESSION. 

THAT CLAIM OF RIGHT WAS MANIFESTED NOT ONLY BY TRANSFERS OF PAPER
TITLE BUT ALSO BY ACTUAL USER OF THE PROPERTY.  THE SUFFICIENCY OF
ACTUAL AND OPEN POSSESSION OF PROPERTY IS TO BE JUDGED IN THE LIGHT OF
ITS CHARACTER AND LOCATION.  FN24  IT IS HARD TO CONCEIVE OF A MORE
ISOLATED PIECE OF LAND THAN PALMYRA, ONE OF WHICH POSSESSION NEED BE
LESS CONTINUOUS TO FORM THE BASIS OF A CLAIM.  THIS TINY ATOLL IN THE
PACIFIC, HOWEVER, FAR REMOVED FROM ANY OTHER LANDS AND CLAIMED BY NO
SOVEREIGNTY UNTIL 1862 WAS NOT WHOLLY VALUELESS, COMMERCIALLY, PRIOR TO
THE ESTABLISHMENT OF AIRWAYS OVER THE OCEAN. 

FROM TIME TO TIME, MEN THOUGHT THERE MIGHT BE SOMETHING GAINED FROM
ITS EXPLOITATION.  BENT'S "REPRESENTATION" IN 1862 FOR ANNEXATION WAS
PRECEDED BY AN ACQUAINTANCE WITH THE LOCALITY FOR A NUMBER OF YEARS. 
WHEN HE WENT TO TAKE POSSESSION HE PLANTED VEGETABLES AND MELONS, BUILT
A HOUSE AND SOUGHT SEA PRODUCTS.  THE PACIFIC NAVIGATION COMPANY HAD
MEN ON THE ISLAND DURING 1885 AND 1886.  COOPER VISITED THE ISLAND IN
1913 AND 1914.  HE WAS THEN THE OWNER OF RECORD.  IN 1912, AT COOPER'S
SUGGESTION, THE THEN GOVERNOR OF HAWAII REQUESTED THE SECRETARY OF THE
INTERIOR OF THE UNITED STATES TO SEND AN AMERICAN VESSEL TO PALMYRA TO
CONFIRM AMERICAN SOVEREIGNTY.  THE GOVERNOR STATED THAT MR. COOPER WAS
THEN THE OWNER AND THAT THE PRIVATE TITLE TO PALMYRA HAD BEEN IN
CITIZENS OF HAWAII SINCE 1862.  IN 1920 AND 1921 THE PALMYRA COPRA
COMPANY WAS ACTIVELY ENGAGED ON THE ISLAND UNDER A LEASE FROM COOPER. 
THE FULLARD-LEOS, WHO ACQUIRED TITLE TO ALL BUT TWO OF THE ISLANDS FROM
COOPER, VISITED THE ISLAND IN 1924 AND AGAIN IN 1935.  ON MANY
OCCASIONS DURING THE INTERIM, THEY GAVE PERMISSION TO VARIOUS PERSONS
TO VISIT THE ISLAND. 

FROM THESE EVIDENCES OF CLAIM OF TITLE AND POSSESSION WERE THE
DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS JUSTIFIED IN ENTERING A
DECREE THAT THE FEE SIMPLE TITLE TO PALMYRA IS VESTED IN RESPONDENTS? 
THE DISSENT IN THE CIRCUIT COURT OF APPEALS POINTS OUT THAT OUR CASES
APPLYING THE LOST GRANT DOCTRINE REQUIRED "UNINTERRUPTED AND LONG
CONTINUING POSSESSION OF A KIND INDICATING THE OWNERSHIP OF THE FEE." 
THIS IS THE RULE.  BUT, AS WE HAVE INDICATED ABOVE, UNINTERRUPTED AND
LONG-CONTINUED POSSESSION DOES NOT REQUIRE A CONSTANT, ACTUAL OCCUPANCY
WHERE THE CHARACTER OF THE PROPERTY DOES NOT LEND ITSELF TO SUCH USE. 
FN25  NO OTHER PRIVATE OWNER CLAIMS ANY RIGHTS IN PALMYRA.  FROM THE
EVIDENCE OF TITLE AND POSSESSION SHOWN IN THIS RECORD, WE CANNOT SAY
THAT THE DECREES BELOW ARE INCORRECT.  JUDGMENT AFFIRMED. 

FN1  HAWAII V. MANKICHI, 190 U.S. 197. 

FN2  HAWAII V. MANKICHI, 190 U.S. 197, 216. 

FN3  DECLARATION OF RIGHTS, 1839. 

ACT TO ORGANIZE EXECUTIVE DEPARTMENTS AND JOINT RESOLUTION, APRIL 27,
1846, HAWAII, STATUTE LAWS, 1845-46, VOL. I, PP. 99, 277. 

FN4  REVISED LAWS OF HAWAII, 1905, P. 1197 ET SEQ. 

FN5  THURSTON V. BISHOP, 7 HAW.  421, DISSENT, N. AT 454. 

FN6  THE DOMAIN COVERED BY THE TERM SEEMS TO BE NOT ONLY THE LANDS
DECLARED TO BE THE PRIVATE LANDS OF THE KING BY THE ACT OF JUNE 7,
1848, BUT ALSO OTHER UNASSIGNED LANDS LATER DECLARED BY LEGISLATIVE
AUTHORITY TO BE CROWN LANDS.  REV. LAWS, HAWAII, 1905, P. 1227; ACT OF
NOVEMBER 14, 1890, LAWS, HAWAII, 1890, C. 75; REV. LAWS, HAWAII, 1905,
P. 1229. 

FN7  HAWAII, STATUTE LAWS, 1845-46, VOL. I, P. 107. 

FN8  HAWAII, STATUTE LAWS, 1847, VOL. II, PP. 81-94; REVISED LAWS,
HAWAII, 1905, P. 1164 ET SEQ. 

FN9  THURSTON V. BISHOP, 7 HAW.  421, 429, 437. 

"THE COMMISSION WAS AUTHORIZED TO CONSIDER POSSESSION OF LAND
ACQUIRED BY ORAL GIFT OF KAMEHAMEHA I., OR ONE OF HIS HIGH CHIEFS, AS
SUFFICIENT EVIDENCE OF TITLE TO AUTHORIZE AN AWARD THEREFOR TO THE
CLAIMANT.  THIS WE MUST CONSIDER AS THE FOUNDATION OF ALL TITLES TO
LAND IN THIS KINGDOM, EXCEPT SUCH AS COME FROM THE KING, TO ANY PART OF
HIS RESERVED LANDS, AND EXCEPTING ALSO THE LISTS OF GOVERNMENT AND FORT
LANDS RESERVED.  THE LAND IN DISPUTE IN THIS CASE IS NOT ONE OF THOSE
SPECIFICALLY RESERVED BY THE KING, KAMEHAMEHA III., TO HIMSELF AND HIS
SUCCESSORS, AND NOT BEING IN THE LISTS OF LANDS SPECIALLY SET APART AS
GOVERNMENT OR FORT LANDS, MUST BE ONE OF THOSE OVER WHICH THE LAND
COMMISSION HAD JURISDICTION TO AWARD TO THE CLAIMANT."  P. 429. 

FN10  HAW.  CIVIL CODE, 1859, P. 14 ET SEQ. 

FN11  UNITED STATES V. PEROT, 98 U.S. 428, 430; UNITED STATES V.
CHAVES, 159 U.S. 452, 459. 

FN12  DE CASTRO V. BOARD OF COMM'RS, 322 U.S. 451, 459; CHRISTY V.
PRIDGEON, 4 WALL.  196. 

FN13  APPLEBY V. CITY OF NEW YORK, 271 U.S. 364, 380; COMPARE CLEAR
FIELD TRUST CO. V. UNITED STATES, 318 U.S. 363, 366; UNITED STATES V.
ALLEGHENY COUNTY, 322 U.S. 174, 183; S.R.A., INC. V. MINNESOTA, 327
U.S. 558, 564. 

FN14  FLETCHER V. FULLER, 120 U.S. 534, 545, 547; UNITED STATES V.
CHAVEZ, 175 U.S. 509, 520. 

FN15  RICARD V. WILLIAMS, 7 WHEAT.  59, 109.  SEE HOLDSWORTH, A
HISTORY OF ENGLISH LAW, VOL. VII, P. 343, ET SEQ.; 1 GREENLEAF,
EVIDENCE (12TH ED.), SEC. 17. 

FN16  1 GREENLEAF, EVIDENCE (16TH ED.), SEC. 45A: 

"THUS, ALSO, THOUGH LAPSE OF TIME DOES NOT, OF ITSELF, FURNISH A
CONCLUSIVE LEGAL BAR TO THE TITLE OF THE SOVEREIGN, AGREEABLY TO THE
MAXIM, 'NULLUM TEMPUS OCCURRIT REGI;' YET, IF THE ADVERSE CLAIM COULD
HAVE HAD A LEGAL COMMENCEMENT, JURIES ARE INSTRUCTED OR ADVISED TO
PRESUME SUCH COMMENCEMENT, AFTER MANY YEARS OF UNINTERRUPTED ADVERSE
POSSESSION OR ENJOYMENT.  ACCORDINGLY, ROYAL GRANTS HAVE BEEN THUS
FOUND BY THE JURY, AFTER AN INDEFINITELY LONG-CONTINUED PEACEABLE
ENJOYMENT, ACCOMPANIED BY THE USUAL ACTS OF OWNERSHIP.  SO, AFTER LESS
THAN FORTY YEARS' POSSESSION OF A TRACT OF LAND, AND PROOF OF A PRIOR
ORDER OF COUNCIL FOR THE SURVEY OF THE LOT, AND OF AN ACTUAL SURVEY
THEREOF ACCORDINGLY, IT WAS HELD THAT THE JURY WERE PROPERLY INSTRUCTED
TO PRESUME THAT A PATENT HAD BEEN DULY ISSUED.  IN REGARD, HOWEVER, TO
CROWN OR PUBLIC GRANTS, A LONGER LAPSE OF TIME HAS GENERALLY BEEN
DEEMED NECESSARY, IN ORDER TO JUSTIFY THIS PRESUMPTION, THAN IS
CONSIDERED SUFFICIENT TO AUTHORIZE THE LIKE PRESUMPTION IN THE CASE OF
GRANTS FROM PRIVATE PERSONS." 

FN17  32 STAT. 691, SEC. 12. 

FN18  1 GREENLEAF, EVIDENCE (16TH ED.), SEC. 45A. 

FN19  FLETCHER V. FULLER, SUPRA, 551; UNITED STATES V. CHAVES, SUPRA,
464; UNITED STATES V. CHAVEZ, SUPRA, 520. 

FN20  FLETCHER V. FULLER, SUPRA, 552; WHITNEY V. UNITED STATES, 167
U.S. 529, 546; JOVER V. INSULAR GOVERNMENT, SUPRA, 633. 

FN21                                    "OPINION BOOK

         ATTORNEY GENERAL'S DEPARTMENT

                                   PAGES 598-600

                   OPINION NO. 18

              HONOLULU, T.H., FEB. 11, 1905 

TO HIS EXCELLENCY GEO. R. CARTER,

   GOVERNOR OF THE TERRITORY OF HAWAII,

        HONOLULU, T.H. 

SIR: 

IN ANSWER TO YOUR REQUEST OF DECEMBER 15TH, 1904, FOR AN OPINION AS
TO THE JURISDICTION OF THE TERRITORY OF HAWAII OVER THE VARIOUS SMALL
GUANO ISLANDS TO THE NORTH-WEST OF KAUAI, I WOULD REPLY AS FOLLOWS: 

AFTER A CAREFUL INVESTIGATION OF THE RECORDS IN THE OFFICE OF THE
SECRETARY OF THE TERRITORY, FORMERLY THE FOREIGN OFFICE, AND FROM OTHER
SOURCES OF INFORMATION, I FIND THAT THE AUTHORITY OF THE TERRITORY OF
HAWAII OVER THESE ISLANDS IS AS FOLLOWS: 

IT APPEARS IN THE REPORT OF J.A. KING, MINISTER OF THE INTERIOR,
DATED THE 2ND DAY OF JUNE, 1894, TO SANFORD B. DOLE, PRESIDENT OF THE
REPUBLIC OF HAWAII, THAT FORMAL POSSESSION WAS TAKEN OF NECKER ISLAND
BY THE SAID J.A. KING, REPRESENTING THE REPUBLIC OF HAWAII, ON MAY 22,
1894; IT ALSO APPEARS BY THAT REPORT THAT THE GOVERNMENT OF THE
HAWAIIAN ISLANDS HAD SENT CAPTAIN JOHN PATY TO TAKE POSSESSION OF SAID
ISLAND ABOUT 1857; IT ALSO APPEARS THAT HE DID TAKE SUCH POSSESSION AT
THAT TIME. 

PALMYRA ISLAND, SEEMS TO HAVE BEEN ACQUIRED DURING THE REIGN OF
KAMEHAMEHA IV, BY A PROCLAMATION SIGNED BY HIM, DATED THE 15TH DAY OF
JUNE, 1862. 

LISIANSKY ISLAND WAS TAKEN BY THE GOVERNMENT OF THE HAWAIIAN ISLANDS
THROUGH CAPT. JOHN PATY ON THE 10TH DAY OF MAY, 1857. 

MORELL ISLAND AND PATROCINIO OR BYER ISLAND WERE BOTH TAKEN FOR THE
REPUBLIC OF HAWAII IN 1898, BY G.N. WILCOX, A COMMISSIONER FOR THAT
PURPOSE APPOINTED. 

WHILE I WAS UNABLE TO FIND ANY OFFICIAL RECORDS OF THE ACQUISITION OF
THE OTHER ISLANDS, THE GOVERNMENT HAS, FOR MANY YEARS, ASSUMED
JURISDICTION OVER THEM.  THE FOLLOWING LEASES HAVE BEEN MADE, FROM TIME
TO TIME, AND HAVE BEEN UNDISPUTED: 

LEASE OF NECKER ISLAND, DATED THE 2ND DAY OF JUNE, 1904, TO A.H.C.
LOVEKIN, AT $25.00 PER ANNUM, TERM TWENTY-FIVE YEARS. 

LEASE OF J.A. KING, MINISTER OF THE INTERIOR, TO THE NORTH PACIFIC
PHOSPHATE & FERTILIZER CO. OF MORELL, OCEAN, PEARL AND HERMES REEF,
MIDWAY AND FRENCH FRIGATE SHOALS, TWENTY-FIVE YEARS FROM THE 15TH DAY
OF FEBRUARY, 1894. 

LAYSAN AND LISIANSKY ISLANDS TO G.D. FREETH, APRIL 17TH, 1893. 

WHILE IT IS TO BE REGRETTED THAT THE RECORDS OF OUR FOREIGN OFFICE
ARE NOT MORE COMPLETE, POSSIBLY A MORE EXHAUSTIVE SEARCH MIGHT FIND
OTHER DOCUMENTS WHICH, IN THE PRESENT STATE OF THE OLD FOREIGN OFFICE,
IT WAS IMPOSSIBLE FOR ME TO FIND.  I BELIEVE THAT FROM THESE RECORDS
THE GOVERNMENT'S RIGHT TO LEASE THE ISLANDS, OR ANY PRIVILEGES THEREON,
IS CLEAR; ALSO TO LEASE THE SAME, AS SUGGESTED IN YOUR LETTER.  THE
FACT OF MAKING SUCH LEASES, AND THE LESSEES TAKING POSSESSION
THEREUNDER, RECOGNIZING THE TERRITORY OF HAWAII AS THE LANDLORD WOULD
BE PRIMA FACIE EVIDENCE IN INTERNATIONAL LAW OF OUR RIGHT TO THE SAME
AND WOULD BE THE BEST EVIDENCE THE GOVERNMENT COULD MAKE OF ITS CLAIM
TO THE VARIOUS ISLANDS IN QUESTION. 
YOURS TRULY,

                            (SGD) LORRIN ANDREWS

                                            ATTORNEY GENERAL." 

FN22  S. DOC. NO. 16, 55TH CONG., 3D SESS., P. 4: 

"THE HAWAIIAN GROUP NUMBERS SEVEN INHABITED ISLANDS AND ELEVEN OR
TWELVE SMALL ROCKY OR SANDY SHOALS OR REEFS, WITH A TOTAL AREA OF 6,740
SQUARE MILES.  THEY ARE DESCRIBED AS FOLLOWS:

                                                        POPULATION,
1896. 

HAWAII, AREA 4,210 SQUARE MILES.............................
33,285 

MAUI, 760 SQUARE MILES......................................
17,726 

OAHU, 600 SQUARE MILES......................................
40,205 

KAUAI, 590 SQUARE MILES (RICH FARMING AND GRAZING LANDS)....
15,228 

MOLOKAI, 270 SQUARE MILES (AGRICULTURAL AND GRAZING)........
2,307 

LANAI, 150 SQUARE MILES (DEVOTED TO SHEEP RAISING)..........
  105 

NIIHAU, 97 SQUARE MILES (LEASED TO SHEEP RAISERS)...........
  164 

KAHOOLAWE, 63 SQUARE MILES. 

MOLOKINI, SMALL SIZE. 

LEHUA, SMALL SIZE. 

NIHOA, 500 ACRES (ABOUT), PRECIPITOUS ROCK, 400 FEET HIGH (244 MILES
NORTHWEST FROM HONOLULU). 

LAYSAN, 2,000 ACRES (ABOUT), GUANO ISLAND, LOW AND SANDY, 30 FEET
HIGH (800 MILES NORTHWEST FROM HONOLULU). 

GARDENERS ISLAND, TWO INACCESSIBLE ROCKS, 200 FEET HIGH, ABOUT 1,000
FEET LONG (607 MILES NORTHWEST OF HONOLULU). 

LISCANSKY ISLAND, 500 ACRES (ABOUT), LOW AND SANDY, 25 TO 50 FEET
HIGH (920 MILES NORTHWEST FROM HONOLULU). 

OCEAN ISLAND, 500 ACRES (ABOUT), LOW AND SANDY (1,800 MILES NORTHWEST
FROM HONOLULU). 

NECKER ISLAND, 400 ACRES (ABOUT), A PRECIPITOUS ROCK, 300 FEET HIGH
(400 MILES NORTHWEST FROM HONOLULU). 

PALMYRA ISLAND, A CLUSTER OF LOW ISLETS, ABOUT 10 MILES IN
CIRCUMFERENCE, WITH LAGOON IN CENTER; HAS A FEW COCOANUT TREES (1,100
MILES SOUTHWEST OF HONOLULU). 

KAULA, SMALL, ROCKY ISLAND, A FEW MILES SOUTHWEST OF NIIHAU. 

FRENCH FRIGATE SHOAL, SCATTERED SHOALS OR REEFS." 

FN23  THE UNITED STATES QUESTIONS THE EFFECT ON ANY TITLE OF THE
UNITED STATES TO PALMYRA OF THE DISCLAIMER OF INTEREST IN PALMYRA BY
HAWAII.  THE UNITED STATES ASSERTS THAT ALL PUBLIC LANDS OF HAWAII
PASSED TO THE UNITED STATES BY THE JOINT RESOLUTION OF JULY 7, 1898,
AND THE RESOLUTION OF THE SENATE OF HAWAII OF SEPTEMBER 9, 1897.  REV.
LAWS, HAWAII, 1905, PP. 36, 40.  THEREAFTER, IN 1900, IT IS SAID THAT
CONGRESS MADE PROVISION FOR THE DISPOSITION OF SUCH LANDS.  HAWAIIAN
ORGANIC ACT, 31 STAT. 141; SEC. 73 OF THE ORGANIC ACT, AS AMENDED IN
1910, SEC. 5, 36 STAT. 444; SEC. 2432, REV. LAWS, HAW., 1905.  THE
POSITION OF THE UNITED STATES IS THAT THERE WAS NO POWER IN HAWAII TO
DISCLAIM ANY INTEREST THAT THE UNITED STATES MIGHT HAVE IN PALMYRA IN
1912.  WE NEED NOT RESOLVE THIS ISSUE.  THE LAND COURT RECORD IS
REFERRED TO AS ANOTHER INSTANCE OF THE CLAIMS OF RESPONDENT TO PALMYRA
ADVERSE TO THE CLAIM OF OWNERSHIP OF THE UNITED STATES AND ITS
PREDECESSORS IN TITLE TO THE PUBLIC LANDS OF HAWAII. 

FN24  A STATEMENT OF THIS COURT IN UNITED STATES V. PENDELL, 185 U.S.
AT 197, IS PERTINENT: 

"THERE ARE NO ADVERSE CLAIMANTS TO THE LAND IN QUESTION, AND THE
PROOF OF POSSESSION, EXCLUSIVE IN ITS NATURE, HAS BEEN SATISFACTORY TO
THE COURT BELOW.  WHAT CONSTITUTES SUCH POSSESSION OF A LARGE TRACT OF
LAND DEPENDS TO SOME EXTENT UPON CIRCUMSTANCES, THE FACT VARYING WITH
DIFFERENT CONDITIONS, SUCH AS THE GENERAL STATE OF THE SURROUNDING
COUNTRY, WHETHER SIMILAR LAND IS CUSTOMARILY DEVOTED TO PASTURAGE OR TO
THE RAISING OF CROPS; TO THE GROWTH OF TIMBER OR TO MINING, OR OTHER
PURPOSES.  THAT WHICH MIGHT SHOW SUBSTANTIAL POSSESSION, EXCLUSIVE IN
ITS CHARACTER, WHERE THE LAND WAS DEVOTED TO THE GRAZING OF NUMEROUS
CATTLE, MIGHT BE INSUFFICIENT TO SHOW THE SAME KIND OF POSSESSION WHERE
THE LAND WAS SITUATED IN THE MIDST OF A LARGE POPULATION AND THE
COUNTRY DEVOTED, FOR INSTANCE, TO MANUFACTURING PURPOSES.  PERSONAL
FAMILIARITY WITH THE GENERAL CHARACTER OF THE COUNTRY AND OF ITS LANDS,
AND ALSO KNOWLEDGE OF THE NATURE AND MANNER OF THE USE TO WHICH MOST OF
THE LANDS IN THE SAME VICINITY ARE PUT, HAVE GIVEN THE JUDGES OF THE
COURT BELOW UNUSUAL READINESS FOR CORRECTLY JUDGING AND APPRECIATING
THE WEIGHT AND VALUE TO BE ACCORDED EVIDENCE UPON THE SUBJECT OF
POSSESSION OF SUCH LANDS AS ARE HERE INVOLVED." 

FN25  SEE FLETCHER V. FULLER, 120 U.S. 534, 543. 

MR. JUSTICE RUTLEDGE, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE MURPHY CONCUR, DISSENTING. 

I AGREE WITH THE DISSENTING JUDGES IN THE CIRCUIT COURT OF APPEALS
THAT THE POSSESSION SHOWN ON BEHALF OF RESPONDENTS IS NOT SUFFICIENT TO
ESTABLISH THE PRESUMPTION OF A LOST GRANT, EVEN IF TITLE CAN BE
ACQUIRED FROM THE GOVERNMENT IN THAT MANNER.  ACCORDING TO MY
UNDERSTANDING, THE POSSESSION, TO HAVE THAT EFFECT, MUST BE ACTUAL,
OPEN, NOTORIOUS, ADVERSE AND CONTINUOUS FROM THE TIME WHEN THE GRANT IS
PRESUMED TO HAVE TAKEN PLACE.  FN1  HERE FOR LONG PERIODS THE
POSSESSION WAS CONSTRUCTIVE AT THE MOST, NOT ACTUAL.  BY THE SAME TOKEN
IT WAS NOT CONTINUOUS.  FN2  I DO NOT THINK THIS COURT SHOULD EXPAND
THE ESTABLISHED BASIS FOR ACQUIRING TITLE TO GOVERNMENT LANDS SO AS TO
INCLUDE ACQUISITION BY ADVERSE POSSESSION, AS IN EFFECT THE COURT'S
OPINION DOES.  ACCORDINGLY, I DISSENT. 

FN1  "AND HENCE, AS A GENERAL RULE, IT IS ONLY WHERE THE POSSESSION
HAS BEEN ACTUAL, OPEN AND EXCLUSIVE FOR THE PERIOD PRESCRIBED BY THE
STATUTE OF LIMITATIONS TO BAR AN ACTION FOR THE RECOVERY OF LAND, THAT
THE PRESUMPTION OF A DEED CAN BE INVOKED."  FLETCHER V. FULLER, 120
U.S. 534, 551.  "THE POSSESSION MUST BE ADVERSE, EXCLUSIVE, AND
UNINTERRUPTED, AND INCONSISTENT WITH THE EXISTENCE OF TITLE IN
ANOTHER."  PEABODY V. UNITED STATES, 175 U.S. 546, 550.  THE STATEMENT
IN THE AUTHORITIES THAT THE POSSESSION MUST BE UNINTERRUPTED HAS BEEN
QUALIFIED ONLY TO THE EXTENT THAT "THIS PRESUMPTION MAY  ...  , IN SOME
INSTANCES, BE PROPERLY INVOKED WHERE A PROPRIETARY RIGHT HAS LONG BEEN
EXERCISED, ALTHOUGH THE EXCLUSIVE POSSESSION OF THE WHOLE PROPERTY, TO
WHICH THE RIGHT IS ASSERTED, MAY HAVE BEEN OCCASIONALLY INTERRUPTED
DURING THE PERIOD NECESSARY TO CREATE A TITLE BY ADVERSE POSSESSION, IF
IN ADDITION TO THE ACTUAL POSSESSION THERE WERE OTHER OPEN ACTS OF
OWNERSHIP."  FLETCHER V. FULLER, SUPRA, AT 552.  AND THE PRESUMPTION OF
CONTINUING POSSESSION WHICH EXISTS "IN THE ABSENCE OF EVIDENCE TO THE
CONTRARY," LAZARUS V. PHELPS, 156 U.S. 202, 204, EVEN IF COMPETENT TO
FURNISH THE BASIS FOR THE FURTHER PRESUMPTION OF A LOST GRANT, IS HERE
REBUTTED BY THE EVIDENCE WHICH HAS BEEN INTRODUCED.  SEE NOTE 2. 

FN2  THE FOLLOWING SUMMARY OF THE ISLAND'S HISTORY WAS GIVEN, WITH
SUPPORTING RECORD REFERENCES, IN NOTE 3 OF THE DISSENTING OPINION, 156
F.2D 756, 760, FILED BY DENMAN, C.J., WITH WHOM BONE, C.J., AGREED, IN
THE CIRCUIT COURT OF APPEALS: 

"ZENAS BENT VISITED THE ISLAND IN APRIL, 1862, AND LEFT FIVE MEN
THERE.  IN JUNE ANNEXATION WAS FORMALLY PROCLAIMED.  IT DOES NOT APPEAR
HOW LONG THE FIVE MEN REMAINED ON THE ISLAND BUT IN DECEMBER OF THE
SAME YEAR BENT TRANSFERRED ALL HIS INTEREST TO WILKINSON.  WILKINSON
DIED IN 1866 AND HIS WILL WAS PROBATED IN NEW ZEALAND GIVING HIS RIGHTS
IN PALMYRA TO HIS WIFE, KALAMA.  NOTHING FURTHER OCCURRED UNTIL 1885
WHEN THE SUPPOSED TITLE WAS TRANSFERRED TO THE PACIFIC NAVIGATION
COMPANY, A CONVEYANCE BEING EXECUTED BY TWO OF KALAMA'S HEIRS AND
BENT'S DEED BEING ACKNOWLEDGED, 23 YEARS AFTER ITS EXECUTION.  THUS,
EXCEPT FOR THE FIVE MEN LEFT ON THE ISLAND BY BENT IN ORDER TO MAKE THE
ANNEXATION EFFECTIVE, THERE IS NO INDICATION THAT THERE WAS ANY
POSSESSION OR EVEN VISITS TO THE ISLAND FOR THE 23 YEARS FOLLOWING
ANNEXATION.  ON THE CONTRARY, THE FACT THAT BENT'S DEED WAS NOT
ACKNOWLEDGED UNTIL 1885, AFTER CONVEYANCE BY KALAMA'S HEIRS, CLEARLY
INDICATES THAT, IN THE MEANTIME, NO CLAIM OF TITLE OR POSSESSION WAS
ASSERTED BY ANYONE. 

"EMPLOYEES OF THE PACIFIC NAVIGATION COMPANY OCCUPIED THE ISLAND FOR
APPROXIMATELY A YEAR IN 1885 AND 1886 AND THE COMPANY PAID TAXES IN
1885, 1886 AND 1887, NOT TO THE UNITED STATES BUT TO THE TERRITORY. 
(THE CLAIMANT PLACED THE LANDS ON THE TAX ROLLS AND IN MANY CASES TAXES
WERE PAID ON PUBLIC LANDS.)  THIS COMPANY'S PROJECT APPARENTLY FAILED
AND THERE FOLLOWED ANOTHER LONG PERIOD WHEN THE ISLAND WAS VACANT. 
SOME TIME BETWEEN 1889 AND 1897 A BRITISH VESSEL VISITED THE ISLAND AND
FINDING IT UNINHABITED, CLAIMED IT FOR THAT COUNTRY.  IN 1912 AT THE
INSTIGATION OF HENRY COOPER WHO HAD JUST ACQUIRED THE SUPPOSED TITLE
AND WHOSE LAND COURT PROCEEDING TO REGISTER IT WAS PENDING, A VESSEL OF
THE UNITED STATES NAVY VISITED THE ISLAND IN ORDER TO CONFIRM THIS
COUNTRY'S CLAIM TO IT.  NO OCCUPANTS WERE FOUND ON THE ISLAND.  IN 1913
AND 1914 COOPER MADE SHORT VISITS OF TWO OR THREE WEEKS TO THE ISLAND
AND BUILT A HOUSE THEREON.  HOWEVER, THE ISLAND WAS NOT PERMANENTLY
OCCUPIED AND IN 1914 EVIDENCE WAS FOUND THAT SINCE THE 1913 VISIT
JAPANESE BIRD POACHERS HAD BEEN THERE. 

"IN 1920 ANOTHER ATTEMPT WAS MADE TO COMMERCIALLY DEVELOP THE
ISLAND.  IT WAS LEASED BY COOPER; A CORPORATION, THE ISLAND OF PALMYRA
COPRA COMPANY, WAS ORGANIZED; AND A 'SETTLEMENT GROUP' WAS SENT TO THE
ISLAND.  THIS PROJECT WAS NOT SUCCESSFUL AND ITS ACTIVITIES TERMINATED
AFTER ABOUT A YEAR.  THE FULLARD-LEOS BOUGHT COOPER'S RIGHTS IN 1922
BUT ONLY VISITED THE ISLAND TWICE, ONCE IN 1924 FOR TWELVE DAYS AND
AGAIN IN 1935 FOR ONE DAY.  BETWEEN 1922 AND THE TIME THIS SUIT WAS
COMMENCED, NO ONE LIVED ON THE ISLAND.  IT WAS MOST FREQUENTLY VISITED
BY UNITED STATES NAVY OR COAST GUARD VESSELS WHICH WERE IN THE
NEIGHBORHOOD.  IN FACT, FULLARD-LEO WENT ON THE COAST GUARD VESSEL
'ITASCA' WHEN HE VISITED THE ISLAND IN 1935.  OCCASIONALLY,
VACATIONISTS OR SCIENTISTS MADE SHORT VISITS TO THE ISLAND.  DURING
THIS PERIOD AN UNNAMED MAN LIVED THERE FOR TWO OR THREE MONTHS.  ON
ANOTHER OCCASION (1936) A PARTY FROM TAHITI WENT THERE IN AN ATTEMPT TO
FIND A CARGO OF BUTTON SHELLS WHICH WERE RUMORED TO HAVE BEEN
JETTISONED BY AN UNSEAWORTHY BOAT.  BY 1938, THE HOUSE WHICH COOPER
BUILT IN 1913 HAD COLLAPSED AND ALL THE VARIOUS VISITORS TESTIFIED THEY
DID NOT SEE ANY EVIDENCE OF OCCUPATION IN RECENT TIMES." 

FROM THESE FACTS THE DISSENTING JUDGES CONCLUDED:  "IN THE 77 YEARS
FROM THE ROYAL PROCLAMATION OF TAKING IN 1862 TO THE FILING OF THE
INSTANT CASE IN 1939, THE OCCUPANCY OF THE ISLAND HAS BEEN LESS THAN
TWO AND ONE-HALF YEARS.  OF THIS A YEAR WAS IN THE YEARS 1885-86 AND A
YEAR IN 1920.  IN THE INTERIM, FROM 1862 TO 1939, THERE WAS NO ONE
RESIDING THERE UNDER A CLAIM OF POSSESSION - THE OCCASIONAL VISITORS'
BRIEF STAYS BEING FOR OTHER PURPOSES."  156 F.2D 756, 765; AND SEE ID.
AT NOTE 3. 
..END :





NEW YORK V. UNITED STATES, 331 U.S. 284 


ARGUED MARCH 3, 4, 5, 1947.  - DECIDED MAY 12, 1947.  - 65 F.SUPP.  856,
AFFIRMED. 


1.  AFTER FINDING THAT THE EXISTING CLASS-FREIGHT-RATE STRUCTURE
DISCRIMINATES IN FAVOR OF THE NORTHEASTERN PORTION OF THE UNITED STATES
AND AGAINST THE SOUTHERN AND WESTERN PORTIONS CONTRARY TO SEC. 3(1) OF
THE INTERSTATE COMMERCE ACT, THE INTERSTATE COMMERCE COMMISSION ISSUED
AN INTERIM ORDER UNDER SEC. 15(1) INCREASING CLASS RATES WITHIN THE
NORTHEASTERN AREA BY 10 PER CENT AND REDUCING THOSE ELSEWHERE EAST OF
THE ROCKY MOUNTAINS BY 10 PER CENT, PENDING THE FORMULATION OF A
NATIONAL UNIFORM CLASSIFICATION OF FREIGHT AND EFFECTUATION OF GREATER
NATIONAL UNIFORMITY IN THE CLASS-FREIGHT-RATE STRUCTURE.  HELD:  THE
ORDER DID NOT EXCEED THE COMMISSION'S AUTHORITY.  PP. 296-300, 340
349. 

(A)  WHATEVER DOUBT MAY HAVE EXISTED AS TO APPLICABILITY OF THE
PROHIBITIONS OF SEC. 3(1) OF THE INTERSTATE COMMERCE ACT TO REGIONAL
DISCRIMINATIONS IN RATES WAS REMOVED BY THE 1940 AMENDMENT.  P. 300. 

(B)  THE ADDITION OF THE WORDS "REGION, DISTRICT, TERRITORY" TO SEC.
3(1) DID NOT REQUIRE NATIONAL UNIFORMITY IN RATES REGARDLESS OF
DIFFERING COSTS OF THE SERVICE; BUT MADE PLAIN THE DUTY OF THE
COMMISSION, IN DETERMINING WHETHER DISCRIMINATION EXISTS, TO CONSIDER
THE INTERESTS OF REGIONS, DISTRICTS AND TERRITORIES, AND TO ELIMINATE
TERRITORIAL RATE DIFFERENCES WHICH ARE NOT JUSTIFIED BY DIFFERENCES IN
TERRITORIAL CONDITIONS.  PP. 300, 305, 350. 

2.  THE BASIC FINDING OF THE COMMISSION - THAT CLASS RATES WITHIN
SOUTHERN, SOUTHWESTERN, AND WESTERN TRUNK-LINE TERRITORIES, AND FROM
THOSE TERRITORIES TO OFFICIAL (NORTHEASTERN) TERRITORY, ARE GENERALLY
MUCH HIGHER, ARTICLE FOR ARTICLE, THAN THE RATES WITHIN OFFICIAL
TERRITORY - IS ABUNDANTLY SUPPORTED BY THE EVIDENCE.  PP. 301-305. 

3.  AN UNLAWFUL DISCRIMINATION IN CLASS RATES AGAINST REGIONS OR
TERRITORIES IS NOT DEPENDENT ON A SHOWING OF ACTUAL DISCRIMINATION
AGAINST SHIPPERS LOCATED IN SUCH REGIONS OR TERRITORIES OR NEGATIVED BY
THE FACT THAT ONLY A MINOR PORTION OF FREIGHT MOVES BY CLASS RATES. 
PP. 306-309. 

4.  THE COMMISSION'S FINDING - BASED UPON A BROAD INQUIRY INTO THE
EFFECT OF CLASS RATES ON THE ECONOMIC DEVELOPMENT OF SOUTHERN,
SOUTHWESTERN AND WESTERN TRUNK-LINE TERRITORIES - THAT PREJUDICE TO
THESE TERRITORIES HAD BEEN ESTABLISHED, IS SUPPORTED BY SUBSTANTIAL
EVIDENCE.  PP. 310-315. 

5.  THE COMMISSION'S FINDING THAT CONDITIONS PECULIAR TO THE
RESPECTIVE TERRITORIES DID NOT JUSTIFY THE DIFFERENCE IN THE
TERRITORIAL CLASS-RATE STRUCTURE IS SUPPORTED BY THE EVIDENCE.  PP. 315
332. 

(A)  THE COMMISSION'S JUDGMENT THAT THE DIFFERENCES IN CONSISTS
BETWEEN THE TERRITORIES DO NOT JUSTIFY THE PRESENT DIFFERENCES IN
INTERTERRITORIAL CLASS RATES IS AN EXPERT JUDGMENT ENTITLED TO GREAT
WEIGHT; AND THIS COURT COULD NOT DISTURB ITS FINDINGS ON THE FACTS OF
THIS RECORD WITHOUT INVADING THE PROVINCE RESERVED FOR THE EXPERT
ADMINISTRATIVE BODY.  P. 326. 

(B)  THE EARNING POWER OF THE CARRIERS, THEIR FREIGHT OPERATING
RATIOS, THEIR RATES OF RETURN, THE ESTIMATE OF THE VOLUME OF TRAFFIC IN
THE FUTURE, AND THE NATURE AND AMOUNT OF TRAFFIC PRESENTLY INVOLVED IN
THE CLASS-RATE MOVEMENTS ARE ALL RELEVANT TO THE FINDING OF UNLAWFUL
DISCRIMINATION; AND THIS COURT CANNOT SAY THAT THESE CONSIDERATIONS DO
NOT COUNTERBALANCE OR OUTWEIGH THE HIGHER OPERATING COSTS IN THE WEST,
SINCE THE APPRAISAL OF THESE NUMEROUS FACTORS IS FOR TRANSPORTATION
EXPERTS AND THE ERROR OF JUDGMENT ON THEIR PART, IF ANY, IS NOT OF THE
EGREGIOUS TYPE WHICH IS WITHIN THE REACH OF THIS COURT ON JUDICIAL
REVIEW.  P. 331. 

(C)  AN ASSUMPTION THAT A REDUCTION IN THE WESTERN RATE STRUCTURE,
WHICH, AS COMPARED WITH THE EASTERN, IS NOT WARRANTED BY TERRITORIAL
CONDITIONS AND WHICH PREJUDICES THE GROWTH AND DEVELOPMENT OF THE WEST,
WOULD HAVE NO EFFECT IN INCREASING THE TRAFFIC OF THE WESTERN CARRIERS
WOULD FLY IN THE FACE OF HISTORY, IS CONTRARY TO THE COMMISSION'S
EXPERT JUDGMENT AND WOULD PROTECT A DISCRIMINATORY RATE STRUCTURE FROM
THE POWER OF REVISION GRANTED THE COMMISSION UNDER SEC. 3(1).  P. 332. 

6.  NOTWITHSTANDING THE COMMISSION'S FINDING THAT LESS-THAN-CARLOAD
TRAFFIC AS A WHOLE IS CARRIED AT A DEFICIT IN ALL TERRITORIES, EXCEPT
POSSIBLY IN THE SOUTH, THIS COURT WILL NOT SET ASIDE THE ORDER
TEMPORARILY REDUCING THE CLASS RATES ON THAT TRAFFIC - ESPECIALLY IN
VIEW OF THE COMMISSION'S FINDINGS THAT SUCH TRAFFIC CONSTITUTES LESS
THAN 2 PER CENT OF THE TOTAL RAILROAD FREIGHT TONNAGE, THAT MUCH OF IT
MOVES ON EXCEPTION RATES AND COMMODITY RATES INSTEAD OF CLASS RATES,
AND THAT, IF LESS-THAN-CARLOAD RATES WERE LEFT UNCHANGED WHILE CLASS
RATES WERE REDUCED, THE COMPETITIVE RELATIONS BETWEEN SHIPPERS OF LESS
THAN-CARLOAD QUANTITIES AND THOSE SHIPPING IN CARLOADS WOULD BE
MATERIALLY AFFECTED.  PP. 332-340. 

(A)  IN ELIMINATING UNJUST DISCRIMINATION AGAINST ENTIRE REGIONS AND
ESTABLISHING THE UNIFORMITY REQUIRED BY LAW IN A COMPLETE RATE
STRUCTURE, THE COMMISSION WAS WARRANTED IN MAKING MINOR COLLATERAL
READJUSTMENTS SO AS TO AVOID CREATING NEW DISCRIMINATIONS.  P. 334. 

(B)  THIS COURT WOULD NOT BE JUSTIFIED IN SETTING ASIDE THE
COMMISSION'S ORDER ON THE GROUND THAT THE NEW LESS-THAN-CARLOAD RATES
ARE CONFISCATORY - ESPECIALLY IN VIEW OF THE FACTS THAT THE ORDER IS OF
AN INTERIM NATURE, THIS REDUCTION HAS SINCE BEEN OFFSET BY A NATIONWIDE
INCREASE IN ALL FREIGHT RATES, THE COMMISSION INVITED THE CARRIERS TO
APPLY PROMPTLY FOR ADJUSTMENTS TO INSURE THAT THE RATES ON SUCH TRAFFIC
ARE ON A COMPENSATORY LEVEL, AND IT HAS NOT BEEN CLEARLY SHOWN THAT THE
RESULT OF THE ORDER WILL BE CONFISCATORY.  PP. 334-340. 

(C)  IF ADDITIONAL EVIDENCE WAS NECESSARY TO PASS ON AN ISSUE OF
CONFISCATION RAISED IN A PETITION FOR REHEARING BEFORE THE COMMISSION
BUT NOT SUPPORTED BY THE INTRODUCTION OF ADDITIONAL EVIDENCE THERE, THE
DISTRICT COURT SHOULD HAVE REMANDED THE CAUSE TO THE COMMISSION FOR A
FURTHER PRELIMINARY EXPERT APPRAISAL OF THE FACTS WHICH BEAR ON THAT
QUESTION, INSTEAD OF RECEIVING THE EVIDENCE ITSELF AS THOUGH IT WERE
CONDUCTING A TRIAL DE NOVO.  PP. 335-336. 

(D)  THE DISTRICT COURT AMPLY PROTECTED APPELLANTS WHEN IT OVERRULED
THEIR CLAIM THAT THE INTERIM RATES ARE CONFISCATORY WITHOUT PREJUDICE
TO ANOTHER SUIT TO CHALLENGE THE LEGALITY OF THOSE RATES IF, AFTER A
FAIR TEST, THEY PROVE TO BE BELOW THE LOWEST REACHES OF A REASONABLE
MINIMUM OR IF THE PERMANENT RATES DO NOT MEET THAT STANDARD.  P. 340. 

7.  WHERE THE COMMISSION FINDS THAT AN EXISTING RATE RESULTS IN
UNLAWFUL DISCRIMINATION CONTRARY TO SEC. 3(1), IT MAY, UNDER SEC.
15(1), PRESCRIBE A NEW RATE WHICH WILL BE JUST AND REASONABLE.  PP. 340
343, 345. 

(A)  IT IS NOT PREVENTED FROM DOING SO BY THE FACT THAT ALL RATES
INVOLVED IN THE RATE RELATIONSHIP ARE NOT CONTROLLED BY THE SAME
CARRIERS.  PP. 342-343. 

(B)  IT MAY TAKE ONE STEP AT A TIME AND IS NOT REQUIRED TO ELIMINATE
ALL EVILS IN THE RATE STRUCTURE OR NONE.  P. 343. 

8.  IN PRESCRIBING A 10 PER CENT INCREASE IN CLASS RATES IN THE
NORTHEAST, AS PART OF A GENERAL ADJUSTMENT OF THE RATE STRUCTURE FOR
ALL OF THE UNITED STATES EAST OF THE ROCKY MOUNTAINS IN ORDER TO
ELIMINATE UNJUST TERRITORIAL DISCRIMINATIONS PROHIBITED BY SEC. 3(1),
THE COMMISSION DID NOT EXCEED ITS AUTHORITY, EVEN THOUGH THE EXISTING
CLASS RATES IN THE NORTHEAST WERE WITHIN THE ZONE OF REASONABLENESS. 
PP. 343-349. 

(A)  THE COMMISSION HAVING GIVEN DUE CONSIDERATION, AS REQUIRED BY
SEC. 15A (2), TO THE EFFECT OF THE RATES ON THE MOVEMENT OF TRAFFIC,
THE NEED OF ADEQUATE AND EFFICIENT RAILWAY TRANSPORTATION SERVICE AT
THE LOWEST COST CONSISTENT WITH THE FURNISHING OF SUCH SERVICE, AND THE
NEED OF REVENUES SUFFICIENT TO ENABLE THE CARRIERS TO PROVIDE SUCH
SERVICE, THE WEIGHT TO BE GIVEN THOSE FACTORS, AND ESPECIALLY THE
WEIGHT TO BE GIVEN THE RATE OF RETURN IN CURRENT YEARS AS OPPOSED TO
THAT IN THE PRECEDING DECADE, IS FOR THE COMMISSION TO DETERMINE; AND
THIS COURT WOULD USURP THE ADMINISTRATIVE FUNCTION OF THE COMMISSION IF
IT OVERRULED THE COMMISSION'S JUDGMENT AND SUBSTITUTED ITS OWN
APPRAISAL OF THESE FACTORS.  PP. 347-349. 

9.  THE FACT THAT THE COMMISSION SUBSEQUENTLY GRANTED A NATIONWIDE
INCREASE IN ALL FREIGHT RATES DOES NOT RENDER THE INTERIM ORDERS
INVOLVED IN THIS CASE OBSOLETE AND UNENFORCEABLE; SINCE THE ORDER
GRANTING THE RATE INCREASE EMPHASIZES THE DISTINCTION BETWEEN REVENUE
AND RATE-RELATIONSHIP CASES AND IN NO WAY IMPAIRS THE FINDING IN THE
PRESENT CASE THAT THE EXISTING CLASS-RATE STRUCTURE THAT HAS PREVAILED
IN THE SEVERAL TERRITORIES VIOLATES SEC. 3(1).  PP. 349-350. 

NEW YORK ET AL. V. UNITED STATES ET AL. 

NO. 343.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF NEW YORK* . 

*TOGETHER WITH NO. 344, HILDRETH, GOVERNOR OF THE STATE OF MAINE, ET
AL. V. UNITED STATES ET AL., AND NO. 345, ATCHISON, TOPEKA & SANTA FE
R. CO. ET AL. V. UNITED STATES ET AL., ALSO ON APPEALS FROM THE SAME
COURT. 

FINDING THAT THE EXISTING CLASS-FREIGHT-RATE STRUCTURE DISCRIMINATES
IN FAVOR OF THE NORTHEASTERN PORTION OF THE UNITED STATES AND AGAINST
THE SOUTHERN AND WESTERN PORTIONS, CONTRARY TO SEC. 3(1) OF THE
INTERSTATE COMMERCE ACT, THE INTERSTATE COMMERCE COMMISSION ISSUED
INTERIM ORDERS UNDER SEC. 15(1) INCREASING CLASS RATES IN THE NORTHEAST
BY 10 PER CENT AND REDUCING THOSE ELSEWHERE EAST OF THE ROCKY MOUNTAINS
BY 10 PER CENT, PENDING FORMULATION OF A NATIONAL UNIFORM
CLASSIFICATION AND EFFECTUATION OF GREATER NATIONAL UNIFORMITY IN THE
CLASS-FREIGHT-RATE STRUCTURE.  IN SUITS BY OR ON BEHALF OF NORTHERN AND
NEW ENGLAND STATES AND WESTERN RAILROADS TO SET ASIDE THESE ORDERS, THE
DISTRICT COURT SUSTAINED THE ORDERS.  65 F.SUPP.  856.  AFFIRMED, P.
351. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BURTON. 

THE ORDERS OF THE INTERSTATE COMMERCE COMMISSION, WHICH APPELLANTS
SEEK TO HAVE SET ASIDE, RESULTED FROM TWO SEPARATE INVESTIGATIONS
INSTITUTED BY THE COMMISSION ON ITS OWN MOTION IN 1939 TO INQUIRE INTO
THE LAWFULNESS OR UNLAWFULNESS OF MOST OF THE THEN EXISTING RATE-MAKING
STANDARDS FOR INTERSTATE RAILROAD CLASS FREIGHT RATES IN THE UNITED
STATES.  ONE INVESTIGATION RELATED TO CLASSIFICATIONS  FN1  UNDER WHICH
COMMODITIES MOVE BY RAIL FREIGHT.  THE OTHER RELATED TO CLASS RATES. 
FN2  THE TWO INVESTIGATIONS WERE CONSOLIDATED AND WERE COVERED BY ONE
REPORT, AS THE PROBLEMS OF CLASSIFICATION AND OF CLASS RATES  FN3  ARE
CLOSELY INTERRELATED.  THE FINDINGS OF THE COMMISSION AS TO
CLASSIFICATIONS ARE NOT DIRECTLY INVOLVED HERE.  FOR THE ORDERS OF THE
COMMISSION UNDER ATTACK ARE INTERIM ORDERS WHICH AFFECT ONLY CLASS
RATES, INCREASING THEM IN SOME AREAS AND DECREASING THEM IN OTHERS. 
BUT A REVIEW AND SUMMARY OF THE COMMISSION'S FINDINGS BOTH ON
CLASSIFICATIONS AND ON CLASS RATES ARE ESSENTIAL FOR AN UNDERSTANDING
OF THE PROBLEM. 

WHILE THERE ARE THREE MAJOR CLASSIFICATION TERRITORIES, THERE ARE
FIVE MAJOR RATE TERRITORIES.  FN4  OFFICIAL TERRITORY, ROUGHLY
SPEAKING, LIES EAST OF THE MISSISSIPPI AND NORTH OF THE OHIO AND
POTOMAC RIVERS; IT ALSO INCLUDES MOST OF VIRGINIA.  SOUTHERN TERRITORY
LIES SOUTH OF OFFICIAL TERRITORY AND EAST OF THE MISSISSIPPI.  WESTERN
TRUNK-LINE TERRITORY IS LOCATED APPROXIMATELY BETWEEN OFFICIAL
TERRITORY AND THE ROCKY MOUNTAINS.  SOUTHWESTERN TERRITORY LIES SOUTH
OF WESTERN TRUNK-LINE TERRITORY AND WEST OF THE MISSISSIPPI AND
INCLUDES ARKANSAS, TEXAS, OKLAHOMA, AND PART OF LOUISIANA.  MOUNTAIN
PACIFIC TERRITORY INCLUDES MONTANA AND NEW MEXICO AND ALL TERRITORY
WEST OF THE ROCKIES.  ONLY MOUNTAIN-PACIFIC TERRITORY IS NOT INVOLVED
IN THESE CASES. 

THE THREE MAJOR CLASSIFICATIONS ARE OFFICIAL, SOUTHERN AND WESTERN. 
FN5  BUT THERE IS GREAT LACK OF UNIFORMITY IN THE CLASSIFICATIONS.  THE
PROBLEM IS ONE WITH WHICH THE COMMISSION HAS LONG WRESTLED.  FN6  BUT
PRIOR TO THE PRESENT INVESTIGATION ITS CHIEF ACCOMPLISHMENT IN THIS
FIELD HAD BEEN TO ESTABLISH CLASSIFICATION UNIFORMITY WITHIN THE
SEPARATE TERRITORIES.  NATIONAL CLASSIFICATION UNIFORMITY WAS STILL IN
THE MAIN LACKING.  MANY DIFFERENCES BETWEEN CLASSIFICATIONS ON A
PARTICULAR RATING ARE MATTERS OF SUBSTANCE; OTHERS ARE MATTERS OF
NOMENCLATURE.  MOREOVER, THERE HAS BEEN A TENDENCY AMONG CARRIERS TO
WORK AGAINST THE EVOLUTION OF UNIFORM CLASSIFICATIONS BY MAKING
EXCEPTIONS WHICH REMOVE COMMODITIES FROM THE CLASSIFICATIONS FOR RATE
MAKING PURPOSES. 

54 STAT. 899, 900, 49 U.S.C. SEC. 1(4) PROVIDES THAT IT SHALL BE THE
DUTY OF COMMON CARRIERS TO ESTABLISH JUST AND REASONABLE
CLASSIFICATIONS APPLICABLE TO THROUGH FREIGHT RATES AND CHARGES. 
COMMISSION TO PRESCRIBE JUST, FAIR, AND REASONABLE CLASSIFICATIONS,
AFTER A FINDING THAT EXISTING CLASSIFICATIONS ARE UNLAWFUL.  THE
COMMISSION FOUND THAT THE EXISTING CLASSIFICATIONS ARE UNLAWFUL AND
WILL CONTINUE TO BE UNLAWFUL UNTIL THERE IS NATIONAL UNIFORMITY OF
CLASSIFICATION.  IT FOUND THAT DIFFERENCES IN THE APPLICABLE
CLASSIFICATIONS AFFECT THE LEVELS OF THE CLASS RATES AS MUCH AS OR
MORE, IN SOME INSTANCES, THAN THE DIFFERENCES IN THE LEVELS OF THE
CLASS RATE SCALES THEMSELVES.  IT FOUND THAT SHIPPERS IN ONE TERRITORY
PAY MORE THAN SHIPPERS IN ANOTHER TERRITORY ON THE SAME ARTICLE BECAUSE
OF CLASSIFICATION DIFFERENCES; THAT TERRITORIAL BOUNDARIES SEPARATING
CLASSIFICATION TERRITORIES ARE ARTIFICIAL AND CAUSE SERIOUS
COMPLICATIONS; THAT WHERE GEOGRAPHIC CONDITIONS PRODUCE DIVERGENT
COSTS, REVENUE REQUIREMENTS, OR OTHER CONDITIONS REQUIRING RATE
ADJUSTMENTS, THE ADJUSTMENTS SHOULD BE MADE NOT IN THE BASIC
CLASSIFICATION ITSELF BUT IN THE RATE LEVELS OR BY THE CREATION OF
LEGITIMATE EXCEPTIONS TO THE CLASSIFICATION; THAT AMONGST THE
CLASSIFICATIONS THERE WAS NO REAL UNIFORMITY OF CLASSIFICATION RATINGS
ALTHOUGH THE SAME CLASSIFICATION PRINCIPLES ARE APPLICABLE THROUGHOUT
THE NATION.  IT CONCLUDED THAT WITHOUT SUCH UNIFORMITY IT IS IMPOSSIBLE
TO MAINTAIN JUST AND REASONABLE RELATIONSHIPS BETWEEN CLASS RATES FOR
COMPETING COMMODITIES; THAT IT IS FEASIBLE FOR THE CARRIERS TO
ESTABLISH A UNIFORM CLASSIFICATION.  THE COMMISSION GAVE THE RAILROADS
THE OPPORTUNITY TO TAKE THE INITIATIVE IN PREPARING THE NEW UNIFORM
CLASSIFICATION - AN INVITATION WHICH, WE ARE ADVISED, HAS BEEN
ACCEPTED. 

PRIOR TO THIS PROCEEDING THE COMMISSION MADE FOUR MAJOR CLASS RATE
INVESTIGATIONS - ONE FOR EACH OF THE RATE TERRITORIES EXCEPT MOUNTAIN
PACIFIC.  FN7  THESE ESTABLISHED CLASS RATE STRUCTURES ON A REGIONAL
BASIS, I.E. THEY ESTABLISHED SOME DEGREE OF UNIFORMITY IN CLASS RATES
WITHIN EACH TERRITORY OR SUBDIVISION OF A TERRITORY.  BUT THEY DID NOT
DEAL WITH INTERTERRITORIAL CLASS RATES BY HARMONIZING REGIONAL RATE
ADJUSTMENTS ONE WITH THE OTHER.  AS A RESULT THERE ARE SEPARATE
INTERTERRITORIAL RATE STRUCTURES APPLICABLE TO FREIGHT TRAFFIC MOVING
FROM ONE TERRITORY INTO ANOTHER. 

THESE TERRITORIAL CLASS RATE STRUCTURES ARE EXCEEDINGLY COMPLICATED. 
THERE IS NO BASIC UNIFORMITY AMONGST THEM AND THEY ARE COMPUTED BY
VARYING FORMULAE. 

THE COMMISSION FOUND THAT CLASS RATES WITHIN SOUTHERN, SOUTHWESTERN
AND WESTERN TRUNK-LINE TERRITORIES, AND FROM THOSE TERRITORIES TO
OFFICIAL TERRITORY, WERE GENERALLY MUCH HIGHER, ARTICLE FOR ARTICLE,
THAN THE RATES WITHIN OFFICIAL TERRITORY.  IT FOUND THAT HIGHER CLASS
RATES HAVE IMPEDED THE DEVELOPMENT AND MOVEMENT OF CLASS RATE FREIGHT
WITHIN SOUTHERN, SOUTHWESTERN AND WESTERN TRUNK-LINE TERRITORIES AND
FROM THOSE TERRITORIES TO OFFICIAL TERRITORY.  IT CONCLUDED THAT
NEITHER THE COMPARATIVE COSTS OF TRANSPORTATION SERVICE NOR VARIATIONS
IN THE CONSISTS  FN8 AND VOLUME OF TRAFFIC WITHIN THE TERRITORIES
JUSTIFIED THOSE DIFFERENCES IN THE CLASS RATES.  THE COMMISSION ALSO
DETERMINED THAT EQUALIZATION OF CLASS RATES IS NOT DEPENDENT ON
EQUALIZATION OF NON-CLASS RATES AND THAT INTERTERRITORIAL RATE PROBLEMS
CAN BE SOLVED ONLY BY ESTABLISHING SUBSTANTIAL UNIFORMITY IN CLASS
RATINGS AND RATES. 

JUST AND REASONABLE.  THE COMMISSION FOUND THAT THE INTRATERRITORIAL
CLASS RATES APPLICABLE TO THE TERRITORIES IN QUESTION AND THE
INTERTERRITORIAL CLASS RATES BETWEEN THE TERRITORIES VIOLATE THOSE
PROVISIONS. 

ADVANTAGES TO ANY REGION, DISTRICT, OR TERRITORY.  THE COMMISSION FOUND
THAT THE RELATION BETWEEN THE INTERTERRITORIAL CLASS RATES TO OFFICIAL
TERRITORY FROM THE OTHER TERRITORIES IN QUESTION AND THE
INTRATERRITORIAL CLASS RATES WITHIN OFFICIAL TERRITORY RESULTS IN AN
UNREASONABLE PREFERENCE TO OFFICIAL TERRITORY AS A WHOLE, AND TO
SHIPPERS AND RECEIVERS OF FREIGHT LOCATED THERE, IN VIOLATION OF SEC.
3(1).  THE COMMISSION, ACTING PURSUANT TO ITS AUTHORITY UNDER SEC.
15(1) OF THE ACT, PRESCRIBED REASONABLE AND NONDISCRIMINATORY CLASS
RATES TO CURE THE PREFERENCE FOUND TO EXIST, THE NEW RATES TO BECOME
APPLICABLE SIMULTANEOUSLY WITH THE NEW REVISED CLASSIFICATION WHICH, AS
WE HAVE NOTED, THE COMMISSION ORDERED TO BE ESTABLISHED. 

BUT TIME WILL BE REQUIRED TO FORMULATE A UNIFORM CLASSIFICATION.  AND
THE COMMISSION CONCLUDED THAT PENDING COMPLETION OF THAT UNDERTAKING
CERTAIN INTERIM READJUSTMENTS IN THE EXISTING BASIS OF CLASS RATES,
BASED ON EXISTING CLASSIFICATIONS, COULD BE MADE - READJUSTMENTS WHICH
WOULD BE JUST AND REASONABLE, AND WHICH WOULD REDUCE TO A MINIMUM THE
PREFERENCES AND PREJUDICES WHICH THE COMMISSION FOUND TO BE UNLAWFUL IN
THE EXISTING SYSTEM.  IT DETERMINED THAT THE SEVERAL INTRATERRITORIAL
FREIGHT-RATE STRUCTURES SHOULD BE BROUGHT CLOSER TO THE SAME LEVEL AND
BE CONSTRUCTED ON THE SAME PATTERN OR SCHEME.  IT CONCLUDED THAT AS
MANY DIFFERENCES AS POSSIBLE BETWEEN THE INTERTERRITORIAL RATES AND THE
INTRATERRITORIAL RATES SHOULD BE ELIMINATED.  IT ACCORDINGLY ORDERED
THAT EXISTING INTERSTATE CLASS RATES  FN9  APPLICABLE TO FREIGHT
TRAFFIC MOVING AT THE CLASSIFICATION RATINGS WITHIN SOUTHERN,
SOUTHWESTERN, AND WESTERN TRUNK-LINE TERRITORIES, INTERTERRITORIALLY
BETWEEN THOSE TERRITORIES, AND INTERTERRITORIALLY BETWEEN EACH OF THOSE
TERRITORIES AND OFFICIAL TERRITORY, BE REDUCED 10 PER CENT SUBJECT TO
QUALIFICATIONS NOT IMPORTANT HERE.  IT ALSO ORDERED THAT INTERSTATE
CLASS RATES FOR FREIGHT TRAFFIC MOVING AT CLASSIFICATION RATINGS WITHIN
OFFICIAL TERRITORY BE INCREASED 10 PER CENT, SUBJECT TO QUALIFICATIONS
NOT RELEVANT TO OUR PROBLEM.  IT FOUND THE NEW INTERIM CLASS RATES JUST
AND REASONABLE.  262 I.C.C. 447, SUPPLEMENTAL REPORT, 264 I.C.C. 41. 

THE NEW INTERIM RATES WERE ORDERED TO BECOME EFFECTIVE JANUARY 1,
1946.  PRIOR TO THAT DATE, NEW YORK AND OTHER NORTHERN STATES,
APPELLANTS IN NO. 343, FILED THEIR PETITION IN THE DISTRICT COURT TO
SET ASIDE THE ORDERS OF THE COMMISSION.  A STATUTORY THREE JUDGE COURT
WAS CONVENED AND A TEMPORARY INJUNCTION WAS ISSUED PREVENTING THE
ORDERS FROM GOING INTO EFFECT.  38 STAT. 208, 220, 28 U.S.C. SEC. 47. 
THE GOVERNORS OF THE SIX NEW ENGLAND STATES (THREE OF WHOSE SUCCESSORS
IN OFFICE HAVE BEEN SUBSTITUTED AS APPELLANTS IN NO. 344) INTERVENED ON
THE SIDE OF THE PLAINTIFFS, AS DID MOST OF THE APPELLANTS IN NO. 345. 
THE COMMISSION AND OTHERS  FN10  INTERVENED ON THE SIDE OF THE UNITED
STATES.  APPELLANTS IN NO. 345, INCLUDING MOST OF THE WESTERN
RAILROADS, ALSO FILED THEIR PETITION IN THE DISTRICT COURT SEEKING
SUBSTANTIALLY THE SAME RELIEF AS APPELLANTS IN NO. 343.  THE CASES WERE
CONSOLIDATED AND TRIED TOGETHER, THE DISTRICT COURT RECEIVING
ADDITIONAL EVIDENCE OFFERED BY THE WESTERN RAILROADS.  THE COURT
SUSTAINED THE ORDERS OF THE COMMISSION IN ALL RESPECTS, 65 F.SUPP. 
856, BUT CONTINUED THE INJUNCTION PENDING APPEAL TO THIS COURT.  FN11
JUDICIAL CODE SEC. 210, 28 U.S.C. SEC. 47A. 

FIRST.  THE PRINCIPAL EVIL AT WHICH THE INTERSTATE COMMERCE ACT WAS
AIMED WAS DISCRIMINATION IN ITS VARIOUS MANIFESTATIONS.  LOUISVILLE &
N.R. CO. V. UNITED STATES, 282 U.S. 740, 749-750.  UNTIL 1935, SEC.
3(1) OF THE ACT PROHIBITED DISCRIMINATION ONLY AGAINST A "PERSON,
COMPANY, FIRM, CORPORATION, OR LOCALITY, OR ANY PARTICULAR DESCRIPTION
OF TRAFFIC  ...  " 24 STAT. 379, 380.  THE QUESTION AROSE WHETHER
"LOCALITY" INCLUDED A PORT INSOFAR AS THE PORT WAS NOT A POINT OF
ORIGIN OR DESTINATION BUT A GATEWAY THROUGH WHICH SHIPMENTS WERE MADE. 
THE COURT HELD BY A CLOSELY DIVIDED VOTE, AND CONTRARY TO THE RULING OF
THE COMMISSION, THAT IT DID NOT.  TEXAS & PACIFIC R. CO. V. UNITED
STATES, 289 U.S. 627.  THEREAFTER CONGRESS AMENDED SEC. 3(1) SO AS TO
EXTEND THE PROHIBITION AGAINST DISCRIMINATION TO INCLUDE A "PORT, PORT
DISTRICT, GATEWAY, TRANSIT POINT."  49 STAT. 607.  AND SEE ALBANY PORT
DISTRICT COMMISSION V. AHNAPEE & W.R. CO., 219 I.C.C. 151.  THAT WAS IN
1935.  IN 1940 CONGRESS WENT FURTHER.  BY SEC. 5(B) OF THE
TRANSPORTATION ACT OF 1940, 54 STAT. 899, 902, KNOWN AS THE RAMSPECK
RESOLUTION, IT AUTHORIZED AND DIRECTED THE COMMISSION TO INSTITUTE AN
INVESTIGATION INTO RATES ON COMMODITIES BETWEEN POINTS IN ONE
CLASSIFICATION TERRITORY AND POINTS IN ANOTHER TERRITORY AND INTO LIKE
RATES WITHIN TERRITORIES FOR THE PURPOSE OF DETERMINING WHETHER THOSE
RATES WERE "UNJUST AND UNREASONABLE OR UNLAWFUL IN ANY OTHER RESPECT IN
AND OF THEMSELVES OR IN THEIR RELATION TO EACH OTHER, AND TO ENTER SUCH
ORDERS AS MAY BE APPROPRIATE FOR THE REMOVAL OF ANY UNLAWFULNESS WHICH
MAY BE FOUND TO EXIST  ...  "  FN12 CONGRESS ALSO EXTENDED THE
PROHIBITION AGAINST DISCRIMINATIONS BY ADDING TO SEC. 3(1) THE WORDS
"REGION, DISTRICT, TERRITORY."  FN13 

IT IS NOW ASSERTED THAT THE COMMISSION HAS MISUNDERSTOOD ITS DUTIES
UNDER THESE 1940 AMENDMENTS.  IT IS SAID THAT THE COMMISSION HAS
CONSTRUED THIS MANDATE OF CONGRESS TO MEAN THAT IDENTICAL RATES, MILE
FOR MILE, SHOULD BE ESTABLISHED EVERYWHERE IN THE COUNTRY, IN FACE OF A
LONG-STANDING PRACTICE OF RATE-MAKING (WHICH THE LEGISLATIVE HISTORY OF
THE 1940 AMENDMENTS SHOWS WAS NOT INTENDED TO BE CHANGED) THAT ALLOWED
DIFFERENCES IN RATES WHICH WERE BASED ON DIFFERENCES IN THE LENGTH OF
HAUL, CHARACTER OF THE TERRAIN, DENSITY OF TRAFFIC, AND OTHER ELEMENTS
OF THE COST OF SERVICE.  THUS IT IS ARGUED THAT THE COMMISSION RUNS
AFOUL OF ANN ARBOR R. CO. V. UNITED STATES, 281 U.S. 658, WHICH
INVOLVED THE CONSTRUCTION OF A JOINT RESOLUTION OF CONGRESS DIRECTING
THE COMMISSION TO MAKE AN INVESTIGATION TO DETERMINE WHETHER EXISTING
RATES AND CHARGES WERE UNJUST, UNREASONABLE, OR UNJUSTLY DISCRIMINATORY
SO AS TO GIVE UNDUE ADVANTAGE "AS BETWEEN THE VARIOUS LOCALITIES AND
PARTS OF THE COUNTRY  ...  "  43 STAT. 801, 802.  THE COMMISSION,
RELYING ON THAT MANDATE, CONDEMNED CERTAIN EXISTING RATES BETWEEN
CALIFORNIA AND EASTERN POINTS.  THE COURT SET ASIDE THE ORDER OF THE
COMMISSION, HOLDING THAT THE JOINT RESOLUTION DID NOT PURPORT TO CHANGE
THE EXISTING LAW BUT LEFT THE VALIDITY OF RATES TO BE DETERMINED BY
THAT LAW. 

BUT THE COMMISSION IN THE PRESENT CASES DID NOT PROCEED ON THE
ASSUMPTION THAT THE RAMSPECK RESOLUTION CHANGED THE SUBSTANTIVE LAW. 
AS WE READ ITS REPORT, THE COMMISSION TOOK THE RESOLUTION ONLY AS A
DIRECTIVE TO INVESTIGATE AND CORRECT VIOLATIONS OF SUBSTANTIVE LAW AS
IT DEEMED THAT LAW BROADENED BY THE AMENDMENT TO SEC. 3(1).  IT SAID: 

"BY THE AMENDMENT TO THE SUBSTANTIVE ANTIDISCRIMINATION PROVISIONS OF
PREFERENCE OR ADVANTAGE, OR UNDUE OR UNREASONABLE PREJUDICE OR
DISADVANTAGE, AS BETWEEN REGIONS, DISTRICTS, OR TERRITORIES, VIEWED AS
SEPARATE ENTITIES, WERE BROUGHT DIRECTLY WITHIN THE PURVIEW OF THE ACT
ALONG WITH ALL THE OTHER INHIBITIONS PREVIOUSLY INCLUDED.  WE WERE THEN
AUTHORIZED AND DIRECTED BY THE OTHER PROVISIONS MENTIONED TO REMOVE ANY
SUCH DISCRIMINATIONS FOUND TO EXIST IN A PROPER PROCEEDING.  THIS MEANS
THAT SUCH DISCRIMINATIONS AS THOSE MENTIONED WHICH RESULT FROM
DIFFERENCES IN THE METHODS OF DISTRIBUTING THE GENERAL RATE BURDEN IN
THE SEVERAL RATE-MAKING TERRITORIES, OR FROM ANY OTHER CAUSE, IF NOT
JUSTIFIED UPON PROPER CONSIDERATION OF RECOGNIZED ELEMENTS OF RATE
MAKING APPLIED IN THE LIGHT OF THE AMENDED LAW ARE UNLAWFUL AND SHOULD
BE CORRECTED."  262 I.C.C. P. 692. 

FROM THIS STATEMENT IT IS APPARENT THAT THE COMMISSION CONCLUDED THAT
THE 1940 AMENDMENT TO SEC. 3(1) ENLARGED THE SCOPE OF THE SECTION.  THE
COMMISSION, INDEED, STATED THAT "IT IS CLEAR THAT THE MAIN PURPOSE
WHICH CONGRESS HAD IN MIND WAS TO BRING ABOUT A GREATER DEGREE OF
EQUALIZATION, HARMONY, AND UNIFORMITY IN THE DIFFERENT REGIONAL OR
TERRITORIAL RATE STRUCTURES OF THE COUNTRY."  ID. P. 692.  AND SEE ID.
PP. 688-691.  BUT IT IS SUGGESTED THAT DISCRIMINATIONS BASED ON
GEOGRAPHIC FACTORS WERE OUT-LAWED PRIOR TO THE 1940 AMENDMENT TO SEC.
3(1), AS EVIDENCED BY ITS LONG-STANDING CONDEMNATION OF "UNDUE OR
UNREASONABLE PREJUDICE OR DISADVANTAGE" TO ANY "LOCALITY" AND, SINCE
1935, TO ANY "PORT, PORT DISTRICT, GATEWAY, TRANSIT POINT."  FN14  IT
IS, MOREOVER, SUGGESTED THAT EVEN THE PROHIBITION OF DISCRIMINATIONS
AGAINST SHIPPERS WAS BROAD ENOUGH ALL ALONG TO BAN DISCRIMINATIONS
BASED ON THE GEOGRAPHIC LOCATION OF THE SHIPPERS.  THE CONTENTION IS
THAT WITHOUT A CHANGE IN THE LAW THE PRESENT ORDERS WERE UNWARRANTED;
IT IS POINTED OUT THAT THE CLASS RATES NOW CONDEMNED HAD BEEN FOUND BY
THE COMMISSION ITSELF TO BE JUST AND REASONABLE IN RECENT YEARS.  AND
IT IS ASSERTED THAT THE COMMISSION DID NOT TAKE ITS PRESENT ACTION ON A
SHOWING OF CHANGED CIRCUMSTANCES SINCE THOSE TIMES.  THE CONCLUSION,
THEREFORE, IS THAT THE PRESENT ORDERS ARE NOT WARRANTED BY SEC. 3(1). 

WE NEED NOT DETERMINE WHETHER, PRIOR TO THE 1940 AMENDMENT, SEC.
3(1), BY ITS BAN ON UNLAWFUL DISCRIMINATIONS AGAINST A "LOCALITY,"
WOULD HAVE PERMITTED THE COMMISSION TO ERADICATE REGIONAL
DISCRIMINATIONS IN CLASS RATES.  FOR WHATEVER DOUBT MAY HAVE EXISTED IN
THE LAW WAS REMOVED BY THE 1940 AMENDMENT WHICH MADE ABUNDANTLY CLEAR
THAT CONGRESS THOUGHT THAT THE PROBLEM OF REGIONAL DISCRIMINATIONS HAD
BEEN NEGLECTED AND THAT, IF ANY SUCH DISCRIMINATIONS WERE FOUND TO BE
PRESENT, THEY SHOULD BE ERADICATED.  FN15  BUT, AS THE COMMISSION
CONCEDES, THE ADDITION OF "REGION, DISTRICT, TERRITORY" TO SEC. 3(1)
DID NOT CHANGE THE LAW RESPECTING DISCRIMINATION BY AUTHORIZING UNIFORM
FREIGHT RATES, MILE FOR MILE, WITHOUT REGARD TO DIFFERING COSTS OF THE
SERVICE.  CONGRESS, BY ADDING THOSE WORDS, MADE PLAIN THE DUTY OF THE
COMMISSION, IN DETERMINING WHETHER DISCRIMINATORY PRACTICES EXIST, TO
CONSIDER THE INTERESTS OF REGIONS, DISTRICTS, AND TERRITORIES, AND TO
ELIMINATE TERRITORIAL RATE DIFFERENCES WHICH ARE NOT JUSTIFIED BY
DIFFERENCES IN TERRITORIAL CONDITIONS.  IN OTHER WORDS CONGRESS DID NOT
INTRODUCE A NEW STANDARD OF DISCRIMINATION BY ITS AMENDMENT TO SEC.
3(1); IT MERELY MADE CLEAR ITS PURPOSE THAT REGIONS, DISTRICTS, AND
TERRITORIES SHOULD BE THE BENEFICIARIES OF THE LAW AGAINST
DISCRIMINATION. 

SECOND.  IT IS ARGUED, HOWEVER, THAT THE FINDINGS OF THE COMMISSION
CONCERNING REGIONAL DISCRIMINATIONS IN CLASS RATES ARE NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE. 

THE GREAT DIFFERENCES BETWEN TERRITORIAL CLASS RATE LEVELS ARE SHOWN
BY THE FOLLOWING TABLE.  IT GIVES A COMPARISON (IN CENTS PER 100
POUNDS) BETWEEN THE FIRST-CLASS RATE SCALE WITHIN OFFICIAL TERRITORY
AND THAT WITHIN EACH OF THE OTHER TERRITORIES:

                           (CHART OMITTED) 

THESE FIRST-CLASS INTRATERRITORIAL RATES ARE USED AS BASES IN
FORMULATING RATES ON OTHER CLASSES OF FREIGHT IN THE RESPECTIVE
TERRITORIES.  FN16 

THE FOLLOWING TABLES COMPILED BY GOVERNMENT COUNSEL SHOW THE FIRST
CLASS RATES FOR INTERTERRITORIAL MOVEMENTS TO OFFICIAL TERRITORY FROM
EACH OF THE OTHER TERRITORIES AS COMPARED WITH INTRATERRITORIAL
MOVEMENTS FOR APPROXIMATELY EQUAL DISTANCES WITHIN OFFICIAL TERRITORY:

DISADVANTAGE

                          OF SOUTHERN

                                                 TERRITORY SHIPPER

                   COMPARED

   SOUTHERN V. OFFICIAL                                 FIRST
WITH OFFICIAL

                                               MILES    CLASS
TERRITORY

                  RATES          SHIPPER

       FROM -                    TO -
IN CENTS IN PER CENT 

NASHVILLE, TENN----------INDIANAPOLIS, IND--------   297      135 

INDIANAPOLIS, IND--------KENT, OHIO---------------   296       96
 39           41 

KNOXVILLE, TENN----------COLUMBUS, OHIO-----------   395      155 

BALTIMORE, MD------------WARREN, OHIO-------------   392      103
52           50 

BIRMINGHAM, ALA----------MUNCIE, IND--------------   536      179 

PITTSBURGH, PA-----------ROCKFORD, ILL------------   538      128
 51    40 

CHATTANOOGA, TENN--------CHICAGO, ILL------------- 594      187 

PHILADELPHIA, PA---------TOLEDO, OHIO-------------   595      135
 52           39 

ATLANTA, GA--------------CHICAGO, ILL-------------   731      210 

DANVILLE, ILL------------WASHINGTON, D.C.---------   733      151
59           39 

MACON, GA----------------CHICAGO, ILL-------------   819      223 

TRENTON, N.J.            DANVILLE, ILL------------   819      163
 60           37

         DISADVANTAGE OF

                                      SOUTHWESTERN

   TERRITORY

                             SHIPPER

                                                    COMPARED

 SOUTHWESTERN V. OFFICIAL   FIRST       WITH OFFICIAL

                 MILES    CLASS         TERRITORY

                                                   RATES
SHIPPER

        FROM -                    TO -                         IN
CENTS  IN PER CENT 

LITTLE ROCK, ARK-----------DETROIT, MICH----------    785     222 

OFFICIAL TERRITORY POINT---DETROIT, MICH----------    785     160
62           39 

OKLAHOMA CITY, OKLA--------CINCINNATI, OHIO-------    882     244 

OFFICIAL TERRITORY POINT---CINCINNATI, OHIO-------    882     171
 73           43 

SHREVEPORT, LA-------------CLEVELAND, OHIO--------  1,013    264 

OFFICIAL TERRITORY POINT---CLEVELAND, OHIO-------- 1,013     185
79           43 

DALLAS, TEX----------------PITTSBURGH, PA---------  1,224     304 

OFFICIAL TERRITORY POINT---PITTSBURGH, PA---------  1,224     207  97
     47

                            DISADVANTAGE

                                                        OF WESTERN

                   TRUNK-LINE

                                              TERRITORY

     SHIPPER COMPARED

   WESTERN TRUNK-LINE V. OFFICIAL                            FIRST
   WITH

                                         MILES  CLASS   OFFICIAL
TERRITORY

               RATES         SHIPPER

            FROM -                       TO -
IN CENTS  IN PER CENT 

DES MOINES, IOWA-------------------TOLEDO, OHIO--------   558   142 

OFFICIAL TERRITORY POINT-----------TOLEDO, OHIO--------   558   118
  24           20 

ST. PAUL, MINN---------------------SOUTH BEND, IND-----   491   138 

OFFICIAL TERRITORY POINT-----------SOUTH BEND, IND-----   491   111
  27           24 

LINCOLN, NEBR----------------------EVANSVILLE, IND-----   612   169 

OFFICIAL TERRITORY POINT-----------EVANSVILLE, IND-----   612   125
  44           35 

DENVER, COLO-----------------------CLEVELAND, OHIO----- 1,329   289 

OFFICIAL TERRITORY POINT-----------CLEVELAND, OHIO----- 1,329   200
  89           45 

THE DISADVANTAGE TO THE SOUTHERN OR WESTERN SHIPPER WHO ATTEMPTS TO
MARKET HIS PRODUCT IN OFFICIAL TERRITORY IS OBVIOUS.  THUS THE FIRST OF
THESE TABLES SHOWS THAT A NASHVILLE SHIPPER PAYS 39 CENTS MORE ON EACH
100 POUNDS OF FREIGHT MOVING TO INDIANAPOLIS, INDIANA THAN ONE WHO
SHIPS FROM INDIANAPOLIS TO A POINT OF SUBSTANTIALLY EQUAL DISTANCE AWAY
(KENT, OHIO) IN OFFICIAL TERRITORY.  SIMILAR DISADVANTAGES SUFFERED BY
SOUTHERN AND WESTERN SHIPPERS ARE REVEALED IN THE OTHER COMPARABLE
INTERTERRITORIAL FREIGHT MOVEMENTS SET FORTH IN THE TABLES. 

THAT DISADVANTAGE IS EMPHASIZED IF THE EFFECTS OF CLASSIFICATION
DIFFERENCES ON RATES FOR IDENTICAL COMMODITIES ARE CONSIDERED.  A
COMPARISON OF RATES IN CENTS PER 100 POUNDS FOR 200 MILES SHOWS THAT,
EVEN THOUGH SHIPPERS IN THE SOUTH AND WEST HAVE THE SAME OR LOWER
CLASSIFICATION RATINGS FOR IDENTICAL COMMODITIES, THEY NEVERTHELESS ON
THE WHOLE PAY HIGHER CHARGES THAN THE SHIPPERS IN OFFICIAL TERRITORY
FOR EQUIVALENT SERVICE.  THUS THERE ARE IN CLASS 100(FIRST CLASS) FOR
LESS-THAN-CARLOAD LOTS 2092 ITEMS COMMON TO THE THREE CLASSIFICATIONS. 
IN OFFICIAL CLASSIFICATION ALL OF THESE MOVE AT A RATE OF 80 CENTS PER
100 POUNDS FOR A HAUL OF 200 MILES.  IN SOUTHERN, 2075 OF THESE ITEMS
ARE CLASSIFIED 100 AND MOVE AT A RATE OF $1.12.  OF THE REMAINING 17
ITEMS 5 ARE CLASSIFIED IN SOUTHERN IN CLASS 85 WITH A RATE OF 95, 2 IN
CLASS 70 WITH A RATE OF 78, 7 IN CLASS 55 WITH A RATE OF 62, 2 IN CLASS
45, WITH A RATE OF 50, 1 IN CLASS 40 WITH A RATE OF 45.  IN WESTERN
TRUNK-LINE ZONE I, 2076 OF THE 2092 ITEMS ARE CLASSIFIED 100 WITH A
RATE OF 97, 4 IN 85 WITH A RATE OF 82, 10 IN 70 WITH A RATE OF 68, 2 IN
55 WITH A RATE OF 53. 

IN CLASS 100 FOR CARLOAD LOTS THERE ARE 213 COMMON ITEMS.  IN
OFFICIAL CLASSIFICATION ALL OF THESE MOVE AT A RATE OF 80 CENTS FOR A
HAUL OF 200 MILES.  IN SOUTHERN, 199 OF THESE ITEMS ARE CLASSIFIED 100
AND MOVE AT A RATE OF $1.12 FOR 200 MILES.  OF THE REMAINING 14, 7 ARE
CLASSIFIED IN SOUTHERN IN CLASS 85 WITH A RATE OF 95, 2 IN 75 WITH A
RATE OF 84, 5 IN 70 WITH A RATE OF 78.  IN WESTERN TRUNK-LINE ZONE I,
202 OF THE 213 ITEMS ARE CLASSIFIED 100 WITH A RATE OF 97, 7 IN 85 WITH
A RATE OF 82, 3 IN 70 WITH A RATE OF 68, 1 IN 55 WITH A RATE OF 53. 
ADDITIONAL ILLUSTRATIONS ARE TOO NUMEROUS AND DETAILED TO INCLUDE IN
THIS OPINION.  BUT THE ONES GIVEN ARE REPRESENTATIVE OF THE REST AND
SHOW HOW DISPARITIES IN THE RATE LEVELS ARE AGGRAVATED WHEN THE EFFECTS
OF CLASSIFICATION DIFFERENCES ON RATES ARE CONSIDERED. 

THERE IS RATHER VOLUMINOUS EVIDENCE IN THE RECORD TENDERED TO SHOW
THE EFFECT IN CONCRETE COMPETITIVE SITUATIONS OF THESE CLASS RATE
INEQUALITIES.  THE INSTANCES WERE IN THE MAIN REVIEWED BY THE
COMMISSION.  THEY ARE ATTACKED HERE ON VARIOUS GROUNDS - THAT SOME OF
THEM INVOLVED RATES OTHER THAN CLASS RATES, THAT OTHERS WERE TESTIFIED
TO BY SHIPPERS WHO MADE NO COMPLAINT OF CLASS RATES, THAT OTHERS SHOWED
SHIPPERS PAYING HIGHER RATES YET MAINTAINING THEIR COMPETITIVE
POSITIONS AND PROSPERING.  WE DO NOT STOP TO ANALYZE THEM OR DISCUSS
THEM BEYOND SAYING THAT SOME OF THE SPECIFIC INSTANCES SUPPORT WHAT IS
PLAINLY TO BE INFERRED FROM THE FIGURES WE HAVE SUMMARIZED - THAT CLASS
RATES WITHIN SOUTHERN, SOUTHWESTERN AND WESTERN TERRITORIES, AND FROM
THOSE TERRITORIES TO OFFICIAL TERRITORY, ARE GENERALLY MUCH HIGHER,
ARTICLE FOR ARTICLE, THAN THE RATES WITHIN OFFICIAL TERRITORY.  THAT
WAS THE BASIC FINDING OF THE COMMISSION; AND IT IS ABUNDANTLY SUPPORTED
BY THE EVIDENCE.    THUS DISCRIMINATION IN CLASS RATES IN FAVOR OF
OFFICIAL TERRITORY AND AGAINST THE SOUTHERN, SOUTHWESTERN AND WESTERN
TRUNK LINE TERRITORIES IS ESTABLISHED.  BUT THAT IS NOT THE END OF THE
MATTER.  FOR "MERE DISCRIMINATION DOES NOT RENDER A RATE ILLEGAL UNDER
SEC. 3."  UNITED STATES V. ILLINOIS CENTRAL R. CO., 263 U.S. 515, 521. 
AND "ANY UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE" TO ANY
TERRITORY.  AND, AS WE HAVE SAID, THE 1940 AMENDMENT TO SEC. 3, BY ITS
ADDITION OF "REGION, DISTRICT, TERRITORY," DID NOT CHANGE THE
PREVAILING RULES RESPECTING UNLAWFUL DISCRIMINATION; IT MERELY ENLARGED
THE REACH OF SEC. 3.  HENCE WE MUST DETERMINE FROM THE PREEXISTING LAW
WHETHER A DISCRIMINATION AGAINST A TERRITORY IS OBNOXIOUS TO SEC. 3. 
THE RULE IS STATED IN UNITED STATES V. ILLINOIS CENTRAL R. CO., SUPRA,
P. 524, AS FOLLOWS: 

"TO BRING A DIFFERENCE IN RATES WITHIN THE PROHIBITION OF SEC. 3, IT
MUST BE SHOWN THAT THE DISCRIMINATION PRACTICED IS UNJUST WHEN MEASURED
BY THE TRANSPORTATION STANDARD.  IN OTHER WORDS, THE DIFFERENCE IN
RATES CANNOT BE HELD ILLEGAL, UNLESS IT IS SHOWN THAT IT IS NOT
JUSTIFIED BY THE COST OF THE RESPECTIVE SERVICES, BY THEIR VALUES, OR
BY OTHER TRANSPORTATION CONDITIONS." 

IT IS ON THIS PRINCIPLE THAT THE FINDINGS OF THE COMMISSION UNDER
SEC. 3 ARE BOTH DEFENDED AND ATTACKED. 

THIRD.  THE COMMISSION'S FINDINGS UNDER SEC. 3(1) ARE FIRST
CHALLENGED ON THE GROUND THAT THERE IS NO FINDING THAT THE
CORRESPONDING CLASS RATES ARE ACTUALLY CHARGED TO OR DEMANDED OF
COMPETING SHIPPERS IN THE SEVERAL TERRITORIES.  THAT IS TO SAY, NO
UNLAWFUL DISCRIMINATION IN FAVOR OF A SHIPPER IN OFFICIAL TERRITORY AND
AGAINST A SHIPPER IN SOUTHERN TERRITORY CAN BE SAID TO EXIST UNLESS IT
IS SHOWN THAT THE SOUTHERN COMPETITOR IS ACTUALLY REQUIRED TO PAY THE
HIGHER INTERTERRITORIAL CLASS RATES.  IT IS CONTENDED THAT THE RECORD
NEGATIVES THE EXISTENCE OF FACTS WHICH COULD SUPPORT SUCH A FINDING AND
THAT NO SUCH FINDING WAS MADE.  RELIANCE IS PLACED ON TWO
CIRCUMSTANCES.  IN THE FIRST PLACE, REFERENCE IS MADE TO THE EFFECT OF
CLASSIFICATION RATINGS ON CLASS RATES WHICH WE BRIEFLY SUMMARIZED
ABOVE.  IT IS NOTED, FOR EXAMPLE, THAT THE SOUTHERN SHIPPER IN SOME
INSTANCES ACTUALLY PAYS LESS FOR THE SHIPMENT OF THE SAME COMMODITY
THAN THE SHIPPER IN OFFICIAL TERRITORY, E.G., WHERE THE SOUTHERN
CLASSIFICATION CARRIES THE COMMODITY IN A LOWER CLASS, WHICH IN TURN
EXACTS A RATE LESS THAN THAT REQUIRED OF THE HIGHER CLASSIFICATION
GRANTED BY OFFICIAL.  IT IS APPARENT FROM THE ILLUSTRATIONS WE HAVE
GIVEN THAT SUCH IS TRUE IN SOME CASES.  BUT THAT IS NOT THE DOMINANT
PATTERN.  IN THE VAST MAJORITY OF THE INSTANCES THE CLASSIFICATION
RATINGS, LIKE THE CLASS RATE STRUCTURE, WORK TO THE BENEFIT OF OFFICIAL
TERRITORY AND AGAINST THE OTHERS.  BUT THE GREATER RELIANCE IS PLACED
ON THE SECOND CIRCUMSTANCE - THAT ONLY A MINOR PORTION OF FREIGHT MOVES
BY CLASS RATES AND OF THAT A GREATER PERCENTAGE MOVES IN OFFICIAL
TERRITORY THAN IN THE OTHERS.  THIS POINT REQUIRES A MORE EXTENDED
ANSWER. 

THE COMMISSION, INDEED, FOUND THAT BY REASON OF NON-USE THE CLASS
RATES HAVE BECOME OBSOLETE AND NO LONGER SERVE THE PURPOSES FOR WHICH
THEY WERE DESIGNED.  THEY MOVE A RELATIVELY SMALL AMOUNT OF FREIGHT. 
THE FOLLOWING TABLE INDICATES THE PERCENTAGES OF CARLOAD TRAFFIC
CARRIED AT CLASS RATES WITHIN AND BETWEEN TERRITORIES IN 1942:

                      TO

           FROM OFFICIAL    SOUTHERN  SOUTHWESTERN       WESTERN

                                                        TRUNK-LINE 

OFFICIAL----------------------       5.8        12.6     22.5
 12.3 

SOUTHERN----------------------        .9         1.8      6.1
  1.5 

SOUTHWESTERN------------------       1.5         1.2      2.4
2.0 

WESTERN TRUNK-LINE------------       3.1 6.1     13.0
.6 

IN SEPTEMBER, 1940, FOR EXAMPLE, LESS-THAN-CARLOAD RATINGS ON ABOUT
3,000 COMMODITIES WERE REMOVED FROM THE SOUTHERN CLASSIFICATION BY
CLASSIFICATION EXCEPTIONS.  THE GREAT BULK OF THE FREIGHT MOVES ON
EXCEPTION RATES AND COMMODITY RATES.  FN17  THIS TREND, ACCORDING TO
THE COMMISSION, HAS BEEN THE RESULT OF COMPETITIVE FORCES.  THE
CREATION OF THE EXCEPTIONS HAS "SHORN THE RATINGS IN THE
CLASSIFICATIONS OF MUCH OF THEIR USEFULNESS AND PROPER FUNCTION."  262
I.C.C. P. 504.  THE RECORD IS REPLETE WITH EVIDENCE SUPPORTING THIS
FINDING OF THE COMMISSION.  AND APPELLANTS SEIZE ON IT AS SUPPORTING
THEIR CLAIM THAT SINCE CLASS RATES HAVE LARGELY BECOME PAPER RATES,
THEY ARE NOT THE SOURCE OF INJURY TO SHIPPERS FROM THE SOUTH AND THE
WEST; THAT IF THE LATTER ARE PREJUDICED BY THE RATE STRUCTURE, THE
INJURY MUST FLOW FROM THE EXCEPTION RATES AND COMMODITY RATES NOT
INVOLVED IN THIS PROCEEDING; AND THAT IN ANY EVENT THE CASE OF UNLAWFUL
DISCRIMINATIONS IN FAVOR OF OFFICIAL TERRITORY AND AGAINST THE OTHER
TERRITORIES HAS NOT BEEN FOUNDED ON THE ACTUAL USE OF DISADVANTAGEOUS
CLASS RATES BY SHIPPERS IN THE SOUTHERN, SOUTHWESTERN, AND WESTERN
TRUNK-LINE TERRITORIES. 

BUT THAT TAKES TOO NARROW A VIEW OF THE PROBLEM CONFRONTING THE
COMMISSION.  WE START OF COURSE WITH SOME SHOWING OF ACTUAL
DISCRIMINATION AGAINST SHIPPERS BY REASON OF THEIR USE OF CLASS RATES. 
BUT THE MAIN CASE OF DISCRIMINATION MADE OUT BY THE RECORD IS ONE
AGAINST REGIONS AND TERRITORIES.  WE ASSUME THAT A CASE OF UNLAWFUL
DISCRIMINATION AGAINST SHIPPERS BY REASON OF THEIR GEOGRAPHIC LOCATION
WOULD BE AN UNLAWFUL DISCRIMINATION AGAINST THE REGIONS WHERE THE
SHIPMENTS ORIGINATE.  BUT AN UNLAWFUL DISCRIMINATION AGAINST REGIONS OR
TERRITORIES IS NOT DEPENDENT ON SUCH A SHOWING.  AS WE STATED IN
GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 450, "DISCRIMINATORY
RATES ARE BUT ONE FORM OF TRADE BARRIERS."  THEIR EFFECT IS NOT ONLY TO
IMPEDE ESTABLISHED INDUSTRIES BUT TO PREVENT THE ESTABLISHMENT OF NEW
ONES, TO ARREST THE DEVELOPMENT OF A STATE OR REGION, TO MAKE IT
DIFFICULT FOR AN AGRICULTURAL ECONOMY TO EVOLVE INTO AN INDUSTRIAL
ONE.  NON-DISCRIMINATORY CLASS RATES REMOVE THAT BARRIER BY OFFERING
THAT EQUALITY WHICH THE LAW WAS DESIGNED TO AFFORD.  THEY INSURE
PROSPECTIVE SHIPPERS NOT ONLY THAT THE RATES ARE JUST AND REASONABLE
PER SE BUT THAT THEY ARE PROPERLY RELATED TO THOSE OF THEIR
COMPETITORS.  SHIPPERS ARE THEN NOT DEPENDENT ON THEIR ABILITY TO GET
EXCEPTION RATES OR COMMODITY RATES AFTER THEIR INDUSTRIES ARE
ESTABLISHED AND THEIR SHIPMENTS ARE READY TO MOVE.  THEY HAVE A BASIS
FOR PLANNING AHEAD BY RELYING ON A COHERENT RATE STRUCTURE REFLECTING
COMPETITIVE FACTORS. 

IF A SHOWING OF DISCRIMINATION AGAINST A TERRITORY OR REGION WERE
DEPENDENT ON A SHOWING OF ACTUAL DISCRIMINATION AGAINST SHIPPERS
LOCATED IN THESE SECTIONS, THE CASE COULD NEVER BE MADE OUT WHERE
DISCRIMINATORY RATES HAD PROVED TO BE SUCH EFFECTIVE TRADE BARRIERS AS
TO PREVENT THE ESTABLISHMENT OF INDUSTRIES IN THOSE OUTLYING REGIONS. 
IF THAT WERE THE TEST, THEN THE 1940 AMENDMENT TO SEC. 3(1) WOULD NOT
HAVE ACHIEVED ITS PURPOSE.  WE CANNOT ATTRIBUTE SUCH FUTILITY TO THE
EFFORT MADE BY CONGRESS TO MAKE REGIONS, DISTRICTS AND TERRITORIES, AS
WELL AS SHIPPERS, THE BENEFICIARIES OF ITS ANTI-DISCRIMINATION POLICY
EXPRESSED IN SEC. 3(1). 

SO FAR AS THE REMEDY IS CONCERNED, THE PRESENT CASES MIGHT, OF
COURSE, BE DIFFERENT IF THE COMMISSION HAD NO POWER TO PRESCRIBE
CLASSIFICATIONS.  BUT SEC. 15(1) OF THE ACT GRANTS IT FULL POWER, ON
FINDING THAT A CLASSIFICATION IS "UNJUST OR UNREASONABLE OR UNJUSTLY
DISCRIMINATORY OR UNDULY PREFERENTIAL OR PREJUDICIAL," TO DETERMINE AND
PRESCRIBE WHAT CLASSIFICATION WILL BE "JUST, FAIR, AND REASONABLE." 
THE COMMISSION'S OVER-ALL CONCLUSION WAS THAT THE CLASSIFICATIONS IN
FORCE AND THE CLASS RATES COMPUTED FROM THEM HARBOR INEQUITIES WHICH
RESULT IN UNLAWFUL DISCRIMINATIONS IN FAVOR OF OFFICIAL TERRITORY AND
AGAINST THE OTHER TERRITORIES.  THE FACT THAT RELATIVELY SMALL AMOUNTS
OF FREIGHT MOVE BY CLASS RATES PROVES NOT THAT THE REGIONAL AND
TERRITORIAL DISCRIMINATION IS SLIGHT, BUT THAT THE RATE STRUCTURE AS
CONSTITUTED HOLDS NO PROMISE OF AFFORDING THE VARIOUS REGIONS OR
TERRITORIES THAT PARITY OF TREATMENT WHICH TERRITORIAL CONDITIONS
WARRANT.  THE COMMISSION IN SUBSTANCE CONCLUDED THAT THAT RESULT COULD
NOT BE ACHIEVED UNLESS TRAFFIC WAS, IN THE MAIN, MOVED ON CLASS RATES. 
WE WILL DISCUSS LATER THE APPROPRIATENESS OF THE RELIEF GRANTED BY THE
INTERIM ORDERS HERE CHALLENGED.  IT IS SUFFICIENT HERE TO NOTE THAT THE
CASE OF UNLAWFUL DISCRIMINATION AGAINST THESE TERRITORIES WAS CHIEFLY
FOUNDED ON THE ABSENCE OF NON-DISCRIMINATORY CLASS RATES AND UNIFORM
CLASSIFICATIONS WHICH WOULD REMOVE THE FEATURES OF EXISTING RATE
STRUCTURES PREJUDICIAL TO SOUTHERN, SOUTHWESTERN, AND WESTERN TRUNK
LINE TERRITORIES. 

WE ARE THUS NOT PRIMARILY CONCERNED WITH THE ADEQUACIES OF THE
COMMISSION'S FINDINGS SHOWING DISCRIMINATION AGAINST ACTUAL SHIPPERS
LOCATED IN A TERRITORY (CF. FLORIDA V. UNITED STATES, 282 U.S. 194;
NORTH CAROLINA V. UNITED STATES, 325 U.S. 507; INTERSTATE COMMERCE
COMMISSION V. MECHLING, 330 U.S. 567), BUT WITH PREJUDICE TO A
TERRITORY AS A WHOLE. 

FOURTH.  THE INQUIRY OF THE COMMISSION INTO THE EFFECT OF CLASS RATES
ON THE ECONOMIC DEVELOPMENT OF SOUTHERN, SOUTHWESTERN, AND WESTERN
TRUNK-LINE TERRITORIES TOOK A WIDE RANGE.  IT CONCLUDED THAT PREJUDICE
TO THE TERRITORIES IN QUESTION HAD BEEN ESTABLISHED.  WE THINK THAT
FINDING IS SUPPORTED BY SUBSTANTIAL EVIDENCE. 

IT IS, OF COURSE, OBVIOUS THAT THE CAUSAL CONNECTION BETWEEN RATE
DISCRIMINATION AND TERRITORIAL INJURY IS NOT ALWAYS SUSCEPTIBLE OF
CONCLUSIVE PROOF.  THE EXTENT OF THAT CAUSAL RELATION CANNOT IN ANY
CASE BE SHOWN WITH MATHEMATICAL EXACTNESS.  IT IS A MATTER OF INFERENCE
FROM RELEVANT DATA.  THE COMMISSION RECOGNIZED, FOR EXAMPLE, THAT THE
FACT THAT THE SOUTH HAS FEWER INDUSTRIES THAN THE EAST RESULTS FROM A
COMPLEX OF CAUSES - THAT THE "INDUSTRIAL DEVELOPMENT OF THE EAST IS DUE
TO MANY FACTORS OTHER THAN TRANSPORTATION SERVICES AND COSTS, SUCH AS
CLIMATE, SOIL, NATURAL RESOURCES, AVAILABLE WATER POWER, SUPPLIES OF
NATURAL GAS AND COAL, AND EARLY SETTLEMENTS OF POPULATION WHICH
ANTEDATED THE BUILDING OF RAILROADS."  262 I.C.C. P. 619.  IT NOTED
THAT IN 1939 FREIGHT REVENUES ON COMMODITIES IN THE MANUFACTURES AND
MISCELLANEOUS GROUP WERE BUT 5.3 PER CENT OF THE DESTINATION VALUE OF
MANUFACTURED GOODS AND THAT DIFFERENCES IN FREIGHT CHARGES RESULTING
FROM DIFFERENCES IN CLASS RATE LEVELS WERE ONLY A SMALL FRACTION OF
THAT FIGURE.  BUT IT NEVERTHELESS CONCLUDED THAT "NEARNESS TO MARKETS
AND ABILITY TO SHIP TO MARKETS, ON A BASIS FAIRLY AND REASONABLY
RELATED TO THE RATES OF COMPETITORS, ARE NEVERTHELESS POTENT FACTORS IN
THE LOCATION OF A MANUFACTURING PLANT.  IN FACT, RATE RELATIONS ARE
MORE IMPORTANT TO THE MANUFACTURER AND SHIPPER THAN THE LEVELS OF THE
RATES."  262 I.C.C. 619-620. 

THE GREAT ADVANCE IN INDUSTRIALIZATION OF OFFICIAL TERRITORY OVER THE
OTHER TERRITORIES NEED NOT BE LABORED, FOR IT IS OBVIOUS.  SOME
MANIFESTATIONS OF THAT DEVELOPMENT MAY BE ILLUSTRATED BY THE FOLLOWING
TABLES:

           VALUE OF         VALUE ADDED

       TERRITORY            LAND AREA,    GAINFUL     MANUFACTURED
BY MANUFACTURE,

                               1940       WORKERS,     PRODUCTS,
  1939

             1930          1939 

OFFICIAL--------------------     13.5         51.1          67.8
   71.4 

SOUTHERN--------------------     13.3         16.8          10.0
   9.4 

WESTERN TRUNK LINE----------     20.9        13.5           9.9
   8.7 

SOUTHWESTERN----------------     14.2          9.3           4.5
3.3 

MOUNTAIN PACIFIC------------     38.1          9.3        7.8
 7.2

 TOTAL--------------------  100.0        100.0         100.0
100.0 

ANOTHER MEASURE OF INDUSTRIAL GROWTH IS SHOWN BY THE NUMBER OF
GAINFUL WORKERS AND THE MANUFACTURING INDUSTRIES IN THE SEVERAL
TERRITORIES:

                                             ACTUAL INCREASE
ACTUAL INCREASE

ACTUAL INCREASE     IN VALUE OF        IN VALUE ADDED

TERRITORY           IN TOTAL GAINFUL  PRODUCTS IN ALL      BY
MANUFACTURE

                             WORKERS FROM   MANUFACTURING    IN ALL
MANUFACTURING

        1910 TO 1930    INDUSTRIES FROM        INDUSTRIES

                                               1909 TO 1939
FROM 1909 TO 1939 

OFFICIAL--------------------  6,230,273   $23,561,190,000
$11,284,350,000 

SOUTHERN--------------------           652,755     4,229,396,000
1,662,336,000 

WESTERN TRUNK-LINE----------           904,986     3,117,079,000
1,284,798,000 

SOUTHWESTERN----------------         1,011,151     1,942,378,000
580,388,000 

MOUNTAIN PACIFIC------------         1,863,419     3,320,930,000
1,341,785,000 

THE VALUE ADDED BY MANUFACTURE IN ALL INDUSTRIES FROM 1849 TO 1939 IS
SHOWN FOR ALL THE TERRITORIES BY THE CHART ON THE FOLLOWING PAGE. 

FROM THIS CHART IT IS APPARENT THAT OFFICIAL TERRITORY HAS MAINTAINED
ITS COMMANDING LEAD IN SPITE OF RECENT MARKED INCREASES ELSEWHERE,
ESPECIALLY IN THE SOUTH.  SIMILARLY, FOR THE PERIOD 1929 TO 1939 THE
NUMBER OF WAGE EARNERS IN MANUFACTURING INDUSTRIES IN THE ENTIRE
COUNTRY DECREASED 11 PER CENT; IN OFFICIAL TERRITORY, 12 PER CENT;
WHILE IN THE SOUTH THERE WAS AN INCREASE OF 5 PER CENT.  FOR THE SAME
PERIOD, VALUES OF MANUFACTURED PRODUCTS INCREASED 1 PER CENT IN THE
SOUTH, WHILE THEY DECREASED 21 PER CENT FOR THE ENTIRE COUNTRY AND 25
PER CENT IN OFFICIAL TERRITORY.  FROM 1930 TO 1940, THE NUMBER OF
GAINFULLY OCCUPIED WORKERS IN MANUFACTURING IN OFFICIAL TERRITORY
DECREASED FROM 70.5 PER CENT TO 69.4 PER CENT OF THE NATION'S TOTAL,
WHILE IN THE SOUTH THERE WAS AN INCREASE FROM 10 PER CENT TO 11.9 PER
CENT.  A NUMBER OF MANUFACTURING ACTIVITIES HAVE INCREASED MORE RAPIDLY
IN THE SOUTH THAN IN OFFICIAL TERRITORY, THOUGH THE REVERSE HAS BEEN
TRUE IN OTHER INDUSTRIES.  BUT IN SPITE OF THE GROWTH IN INDUSTRIAL
ACTIVITIES IN THE SOUTH AND WEST (WHICH APPELLANTS STRESS HEAVILY), THE
PERCENTAGE COMPARISONS ARE NOT PARTICULARLY REVEALING BECAUSE OF THE
GREAT DISPARITY BETWEEN THE BASES ON WHICH THEY ARE COMPUTED. 

                         (CHART OMITTED) 

THE FACT REMAINS THAT ECONOMIC DEVELOPMENT IN THE SOUTH AND WEST HAS
LAGGED AND STILL LAGS BEHIND OFFICIAL TERRITORY.  IN 1940 THE AVERAGE
ANNUAL DOLLAR INCOME PER PERSON EMPLOYED IN OFFICIAL TERRITORY WAS
$1,988; IN SOUTHERN, $940; IN SOUTHWESTERN, $1,177; IN WESTERN TRUNK
LINE, $1,411.  OFFICIAL HAS 69 PER CENT OF ALL WORKERS ENGAGED IN
MANUFACTURING IN THE UNITED STATES AND 29 PER CENT OF ALL WORKERS IN
EXTRACTIVE INDUSTRIES.  IT HAS, FOR EXAMPLE, A HIGH CONCENTRATION IN
THE MANUFACTURE OF STEEL AND COPPER PRODUCTS, THOUGH LESS THAN 4 PER
CENT OF THE IRON ORE RESERVES, AND NO RESERVES OF METALLIC COPPER.  THE
SOUTH AND WEST FURNISH RAW MATERIALS TO OFFICIAL AND BUY FINISHED
PRODUCTS BACK.  THEY ARE ALSO DEPENDENT TO A GREAT EXTENT ON THE
MARKETS FOR THEIR PRODUCTS IN OFFICIAL, WHICH HAS OVER 48 PER CENT OF
THE POPULATION OF THE COUNTRY, 76 PER CENT OF THE NATIONAL MARKET FOR
INDUSTRIAL MACHINERY AND RAW MATERIALS, 64 PER CENT FOR ALL GOODS AND
SOURCES, 62 PER CENT FOR CONSUMER LUXURIES, AND 53 PER CENT FOR
CONSUMER NECESSITIES.  YET THE SOUTH AND WEST SUFFER RATE HANDICAPS
WHEN THEY SEEK TO REACH THOSE MARKETS.  FN18  ONE OF THE MANY
ILLUSTRATIONS WILL SUFFICE.  COTTONSEED OIL IS A BASIC AGRICULTURAL
COMMODITY.  CLASS RATES ON IT ARE 7 PER CENT HIGHER FROM SOUTHERN TO
OFFICIAL TERRITORY THAN THEY ARE WITHIN OFFICIAL TERRITORY.  IF THE
COTTONSEED OIL IS MANUFACTURED INTO OLEOMARGARINE, THE RATES FROM
SOUTHERN TO OFFICIAL TERRITORY ARE 35 PER CENT HIGHER THAN THE RATES
WITHIN OFFICIAL TERRITORY. 

IT IS SAID IN REPLY, HOWEVER, THAT THE DISPARITIES WHICH WE HAVE
MENTIONED REFLECT ONLY NATURAL ADVANTAGES WHICH JUSTIFY DIFFERENCES IN
RATES.  THE GREAT CONCENTRATION OF POPULATION IN THE EAST IS SAID TO
SHOW THAT ITS MORE FAVORABLE RATES ARE JUSTIFIED BY THE FACT THAT IT
HAS MANY MORE PEOPLE TO SUPPORT THE ROADS.  THE UNFAVORABLE INCOME
COMPARISONS WITH THE EAST ARE THOUGHT TO ESTABLISH ONE OF THE HANDICAPS
UNDER WHICH THE ROADS IN THE SOUTH AND WEST OPERATE.  IT IS POINTED OUT
THAT THE HEAVY PREPONDERANCE OF THE NATION'S TOTAL NATURAL RESOURCE OF
ENERGY SUPPLY IS LOCATED IN OFFICIAL TERRITORY - 40 TO 45 PER CENT OF
THE TOTAL BITUMINOUS AND SEMI-BITUMINOUS COAL SUPPLY, PRACTICALLY ALL
OF THE ANTHRACITE RESOURCES; 60 PER CENT OF ALL ELECTRIC ENERGY
ORIGINATES THERE.  IT IS SAID THAT OFFICIAL TERRITORY IS THE LOGICAL
LOCATION FOR INDUSTRIES WHICH USE METALS FROM OTHER TERRITORIES, SINCE
IT HAS THE NATURAL SUPPLIES OF COAL.  IT IS ALSO POINTED OUT THAT THE
GROSS INCOME FROM CROPS AND LIVESTOCK IN OFFICIAL TERRITORY IS THE
HIGHEST IN THE COUNTRY, AMOUNTING TO 31 PER CENT OF THE TOTAL.  FROM
THESE AND COMPARABLE DATA IT IS ARGUED THAT THE LOWER RATES IN OFFICIAL
TERRITORY REFLECT ONLY INHERENT ADVANTAGES WHICH THE OTHER TERRITORIES
DO NOT ENJOY.  IT IS, THEREFORE, ARGUED THAT WHAT THE COMMISSION HAS
SOUGHT TO DO IS TO EQUALIZE ECONOMIC ADVANTAGES, TO ENTER THE FIELD OF
ECONOMIC PLANNING, AND TO ARRANGE A RATE STRUCTURE DESIGNED TO RELOCATE
INDUSTRIES, CAUSE A REDISTRIBUTION OF POPULATION, AND IN OTHER WAYS TO
OFFSET THE NATURAL ADVANTAGES WHICH ONE TERRITORY HAS OVER ANOTHER.  IT
IS ASSERTED THAT SUCH A PROGRAM IS UNLAWFUL UNDER INTERSTATE COMMERCE
COMMISSION V. DIFFENBAUGH, 222 U.S. 42, 46, WHERE THE COURT HELD THAT
THE ACT, IN ITS CONDEMNATION OF DISCRIMINATION, "DOES NOT ATTEMPT TO
EQUALIZE FORTUNE, OPPORTUNITIES OR ABILITIES."  AND SEE UNITED STATES
V. ILLINOIS CENTRAL R. CO., SUPRA, P. 524; TEXAS & PACIFIC R. CO. V.
UNITED STATES, SUPRA, PP. 637-638. 

WE WILL REVERT TO THIS MATTER WHEN WE COME TO CONSIDER WHETHER
TERRITORIAL CONDITIONS JUSTIFY THE DIFFERENCES IN RATES.  IT IS
SUFFICIENT AT THIS POINT TO SAY THAT THE RECORD MAKES OUT A STRONG CASE
FOR THE INFERENCE THAT NATURAL DISADVANTAGES ALONE ARE NOT RESPONSIBLE
FOR THE RETARDED DEVELOPMENT OF THE SOUTH AND THE WEST, THAT THE
DISCRIMINATORY RATE STRUCTURE HAS ALSO PLAYED A PART.  HOW MUCH A PART
CANNOT BE DETERMINED, FOR EVERY EFFECT IS THE RESULT OF MANY FACTORS. 
BUT THE INFERENCE OF PREJUDICE FROM THE DISCRIMINATORY RATE STRUCTURE
IS IRRESISTIBLE.  IF THIS DISCRIMINATORY RATE STRUCTURE IS NOT
JUSTIFIED BY TERRITORIAL CONDITIONS, THEN ITS CONTINUED MAINTENANCE
PRESERVES NOT THE NATURAL ADVANTAGES OF ONE REGION BUT MAN-MADE TRADE
BARRIERS WHICH HAVE BEEN IMPOSED UPON THE COUNTRY.  SUCH A RESULT
CANNOT BE RECONCILED WITH THE GREAT PURPOSES OF SEC. 3(1) AS AMENDED IN
1940. 

FIFTH.  THE COMMISSION FOUND THAT CONDITIONS PECULIAR TO THE
RESPECTIVE TERRITORIES DID NOT JUSTIFY THE DIFFERENCES IN THE
TERRITORIAL CLASS-RATE STRUCTURES.  IN REACHING THAT CONCLUSION IT
FIRST INQUIRED WHETHER THE DIFFERENCES IN THE COSTS OF FURNISHING THE
RAILROAD SERVICE IN THE SEVERAL RATE TERRITORIES JUSTIFIED THE EXISTING
DIFFERENCES IN THE LEVELS AND PATTERNS OF THE CLASS RATE SCALES.  FN19
THE BASIS OF ITS INQUIRY WAS A COST STUDY SUBMITTED BY ITS STAFF.  FOR
COST ANALYSIS PURPOSES THE UNITED STATES IS DIVIDED INTO AREAS ROUGHLY
BUT NOT EXACTLY APPROXIMATING THE CLASSIFICATION TERRITORIES.  THUS
THERE ARE THREE DISTRICTS: EASTERN, SOUTHERN AND WESTERN.  SOUTHERN
DISTRICT IS FURTHER DIVIDED INTO POCAHONTAS REGION AND SOUTHERN
REGION.  EASTERN DISTRICT PLUS POCAHONTAS REGION IS SUBSTANTIALLY THE
EQUIVALENT OF OFFICIAL TERRITORY.  FN20  IN THE COST STUDY, RAILROADS
WERE ASSIGNED TO GEOGRAPHICAL AREAS; EXPENSES FOR INDIVIDUAL ROADS WERE
DIVIDED INTO GROUPS, EACH GROUP BEING ASSOCIATED WITH APPROPRIATE
SERVICE UNITS WHICH INCLUDED REVENUE CAR-MILES, REVENUE GROSS TON
MILES, AND CARS ORIGINATED AND TERMINATED; UNIT COSTS WERE THEN
OBTAINED BY DIVIDING THE AGGREGATE OF THE TERRITORIAL EXPENSES IN EACH
GROUP BY THE APPLICABLE TERRITORIAL UNITS; THE COSTS OF PARTICULAR
SERVICES WERE THEN BUILT UP FROM THE UNIT COSTS.  COSTS WERE PUT INTO
TWO CLASSES - (1) OUT-OF-POCKET OR VARIABLE EXPENSES WHICH VARY
DIRECTLY WITH THE KIND OF TRAFFIC HANDLED; (2) CONSTANT OR FIXED COSTS
NOT CAPABLE OF ASSIGNMENT TO PARTICULAR KINDS OF TRAFFIC COSTS  FN21
WHICH NORMALLY MUST BE BORNE BY THE VARIOUS TYPES OF TRAFFIC IN
PROPORTION TO THE ABILITY OF EACH TO PAY.  THE DETAILS OF THE COST
STUDY ARE TOO INTRICATE AND VOLUMINOUS TO RELATE HERE.  THEY HAVE BEEN
SUMMARIZED BY THE COMMISSION.  262 I.C.C. PP. 571-592.  IT SHOULD BE
NOTED, HOWEVER, THAT ALLOWANCES FOR RETURN - COMPUTED AT BOTH 4 PER
CENT AND 5 3/4 PER CENT - WERE INCLUDED AMONG COSTS.  THE ALLOWANCES
FOR RETURN WERE BASED ON RECOMMENDED RATE-MAKING VALUES FURNISHED BY
THE BUREAU OF VALUATION.  THE TERRITORIAL COST COMPARISONS WERE
PRINCIPALLY BASED ON THE 4 PER CENT RETURN FIGURE, THE COMMISSION
NOTING THAT THE FIGURE WAS RELATIVELY CLOSE TO THE RETURN EARNED BY THE
CARRIERS IN THE YEAR COVERED BY THE STUDY, VIZ., 1939. 

TO SUMMARIZE VERY BRIEFLY, THE EXPENSES OF THE CARRIERS WERE FIRST
BROKEN DOWN AND TRANSLATED INTO TERRITORIAL AVERAGE UNIT COSTS OF
PERFORMING EACH OF THE KINDS OF SERVICES INVOLVED IN MOVING A SPECIFIC
SHIPMENT OR IN FURNISHING A GIVEN AMOUNT OF TRANSPORTATION SERVICE IN
EACH TERRITORY.  THESE UNIT COSTS WERE THEN MULTIPLIED BY THE NUMBER OF
UNITS OF EACH OF THE SERVICES FOUND TO BE EMPLOYED IN MOVING THE
SPECIFIC SHIPMENT OR FURNISHING THE GIVEN AMOUNT OF SERVICE IN THE
TERRITORY.  THE PROCESS WAS REPEATED FOR A SERIES OF DIFFERENT
SHIPMENTS OR SERVICES SUFFICIENT TO MAKE THE RESULT REPRESENTATIVE OF
TERRITORIAL CONDITIONS.  ONCE THE AVERAGE COSTS FOR EACH RATE TERRITORY
WERE COMPUTED, TERRITORIAL AVERAGE COSTS WERE COMPARED.  THE PRINCIPAL
COMPARISONS WERE BASED ON THE YEAR 1939, ALTHOUGH SUPPLEMENTARY STUDIES
WERE ALSO MADE FOR THE PERIODS 1930-1939, INCLUSIVE, 1937-1941,
INCLUSIVE, AND 1941.  THE TERRITORIAL COST COMPARISONS SHOWED, FOR
EXAMPLE, THE COSTS OF HAULING GIVEN WEIGHT LOADS IN A CERTAIN TYPE OF
CAR FOR GIVEN DISTANCES IN EACH TERRITORY.  THEY ALSO SHOWED THE
RELATIVE COSTS OF HANDLING THE ENTIRE TRAFFIC CONSIST OF EACH
TERRITORY.  THIS WAS DESIGNED TO ELIMINATE THE EFFECTS OF ANY
DIFFERENCES IN CONSISTS OF TRAFFIC BETWEEN TERRITORIES COMPARED, BY
DETERMINING FIRST THE COST IN THE TERRITORY IN WHICH IT ACTUALLY MOVED
AND THEN THE COST IN EACH OF THE OTHER TERRITORIES.  THE COST STUDY
GAVE CONSIDERATION TO FREIGHT MOVING FOR VARIOUS DISTANCES IN ALL KINDS
OF EQUIPMENT - BOX, HOPPER, GONDOLA, TANK, STOCK, FLAT, AND
REFRIGERATOR CARS.  COSTS WERE COMPARED FOR IDENTICAL LOADS HAULED IN
THE PRINCIPAL TYPES OF EQUIPMENT.  STANDARD LOADS WERE THEN TAKEN.  THE
AVERAGE WEIGHT LOADS EXPERIENCED IN EACH TERRITORY FOR VARIOUS TYPES OF
EQUIPMENT WERE ALSO TAKEN.  THE AIM WAS TO MAKE ADJUSTMENT FOR THE
DIFFERENT TYPES OF EQUIPMENT USED AND THE DIFFERENT AVERAGE LOADS
BETWEEN TERRITORIES.  LIKEWISE, COMPARISONS WERE MADE OF THE COST OF
HAULING THE ENTIRE CONSIST OF THE TRAFFIC OF ONE TERRITORY, AT THE
AVERAGE LOADS AND UNIT COSTS APPLICABLE IN THAT TERRITORY, WITH THE
COST OF HAULING THE IDENTICAL TRAFFIC AT THE AVERAGE LOADS AND UNIT
COSTS APPLICABLE TO THE OTHER TERRITORIES.  COMPARISONS WERE ALSO MADE
(FOR THE DISTANCES THE TRAFFIC ACTUALLY MOVED, BY CLASSES OF EQUIPMENT,
AND AT ACTUAL AVERAGE LOADS) OF THE RELATIVE COST OF HAULING THE
CONSIST OF TRAFFIC OF THE ENTIRE UNITED STATES, AND THE COSTS OF
CARRYING THE EASTERN, SOUTHERN AND WESTERN CONSISTS RESPECTIVELY IN
EACH OF THE SEVERAL TERRITORIES. 

WHEN IT CAME TO THE EASTERN DISTRICT, COMPUTATIONS WERE MADE WHICH
BOTH EXCLUDED AND INCLUDED THE POCAHONTAS REGION.  THAT REGION, FOR
PURPOSES OF THE STUDY, REPRESENTED THE OPERATION OF THREE RAILROADS -
CHESAPEAKE & OHIO, NORFOLK & WESTERN, AND THE VIRGINIAN - ABOUT 84 PER
CENT OF WHOSE FREIGHT TRAFFIC IS COAL.  FOR PURPOSES OF SUCH A
COMPARATIVE STUDY AS THIS, THE EXCLUSION OF POCAHONTAS IS CONSIDERED
DESIRABLE, SINCE ITS COSTS ARE LOW BECAUSE OF THE VERY HEAVY COAL
TONNAGE.  FN22 

THE COMMISSION ATTACHED PRINCIPAL WEIGHT TO THE HAUL OF 300 MILES PER
SHIPMENT ORIGINATED, AS THAT DISTANCE MOST CLOSELY APPROXIMATED THE
LENGTH OF HAUL IN EACH TERRITORY IN 1939.  RELATIVE TERRITORIAL  FN23
COSTS (FULLY DISTRIBUTED) FOR TRAFFIC MOVING THAT DISTANCE IN BOX CARS
AND GONDOLA CARS WERE AS FOLLOWS:

           (U.S. AVERAGE 100)

               BOX CARS           GONDOLA AND HOPPER CARS

                                    ASSUMED       ACTUAL    ASSUMED
 ACTUAL

25 TON LOAD  AVERAGE LOAD  50 TON LOAD  AVERAGE LOAD 

EASTERN (EXCL.  POCAHONTAS)---------     102          103
100          100 

SOUTHERN---------------------------      96           97
99          102 

WESTERN----------------------------     108          108
109          115 

THE COMMISSION COMPUTED THAT ON THE FOREGOING ANALYSIS FOR 100, 300
AND 500 MILES, THE FULLY DISTRIBUTED COSTS FOR THE SOUTH ARE GENERALLY
A LITTLE LOWER THAN FOR THE EAST, POCAHONTAS EXCLUDED, WHILE THE FULLY
DISTRIBUTED COSTS IN THE WEST EXCEED THOSE OF THE EAST BY FROM 6 TO 15
PER CENT.  SIMILAR COST COMPARISONS WERE MADE FOR THE SEVERAL
TERRITORIES FOR STOCK-CAR, REFRIGERATOR-CAR, TANK-CAR, AND FLAT-CAR
TRAFFIC.  BASED ON THE ACTUAL AVERAGE LOADS EXPERIENCED FOR EACH CLASS
OF EQUIPMENT, THE COMMISSION FOUND THE COSTS FOR THE SOUTH LOWER THAN
THOSE FOR THE EAST (POCAHONTAS EXCLUDED) FOR TRAFFIC MOVING IN ALL
THOSE CLASSES OF EQUIPMENT.  THE COSTS FOR THE WEST ARE ALSO LOWER THAN
THOSE FOR THE EAST AS TO STOCK-CAR, REFRIGERATORCAR, AND FLAT-CAR
TRAFFIC, BUT HIGHER FOR TANK-CAR TRAFFIC. 

A TERRITORIAL COMPARISON OF FULLY DISTRIBUTED COSTS FOR CARLOAD
TRAFFIC MOVING 300 MILES IN ALL CLASSES OF EQUIPMENT SHOWS THE
FOLLOWING:  FN24

                         (U.S. AVERAGE 100)

                                                           ACTUAL

                                              IDENTICAL
AVERAGE

     LOADS          LOADS 

EASTERN (EXCL.  POCAHONTAS)-------------------      102
102 

POCAHONTAS-----------------------------------       67
67 

EASTERN INCLUDING POCAHONTAS-----------------       95
95 

SOUTHERN-------------------------------------       98        101 

WESTERN--------------------------------------    108            110 

THE FULLY DISTRIBUTED COSTS ON IDENTICAL LOADS IN THE SOUTH ARE 4 PER
CENT BELOW THOSE FOR THE EAST, EXCLUDING POCAHONTAS.  THE SAME
COMPARISON SHOWS THE COSTS FOR THE WEST 6 PER CENT HIGHER THAN THOSE IN
THE EAST, EXCLUDING POCAHONTAS.  COSTS IN THE SOUTH, BASED ON THE
ACTUAL AVERAGE LOADS ARE 1 PER CENT BELOW THOSE FOR THE EAST, EXCLUDING
POCAHONTAS.  IN THE WEST THEY ARE 8 PER CENT HIGHER THAN THE LATTER. 
TERRITORIAL COMPARISONS BASED ON AVERAGE NET TON-MILE CARLOAD COSTS
(1930-1939) ADJUSTED FOR DIFFERENCES IN THE LENGTH OF HAUL AND THE
CONSIST OF THE TRAFFIC WERE MADE.  THEY SHOWED THAT THE COSTS FOR THE
SOUTH ARE APPROXIMATELY 1 OR 2 PER CENT BELOW THOSE FOR THE EAST,
EXCLUDING POCAHONTAS.  ON THE OTHER HAND, THOSE COSTS FOR THE WEST
EXCEEDED THOSE OF THE EAST, EXCLUDING POCAHONTAS BY FROM 5 TO 7 PER
CENT. 

TERRITORIAL COMPARISONS OF THE LESS-THAN-CARLOAD COSTS WERE ALSO
PREPARED.  THEY SHOWED THAT THOSE COSTS ARE LOWER IN THE SOUTH THAN IN
THE EAST WHETHER ASSUMED IDENTICAL LOADS OR ACTUAL AVERAGE LOADS ARE
TAKEN, AND EVEN IF POCAHONTAS IS INCLUDED IN THE EAST.  THEY ARE HIGHER
IN THE WEST THAN IN THE EAST.  IF POCAHONTAS IS EXCLUDED FROM THE EAST
THE FOLLOWING TABLE SHOWS THE COMPARISON FOR A 300 MILE HAUL:

                          (U.S. AVERAGE 100)

                             ASSUMED IDENTICAL LOAD       ACTUAL
AVERAGE LOAD

                            OUT OF     OUT OF POCKET    OUT OF
OUT OF POCKET

         POCKET PLUS CONSTANT  FN1   POCKET PLUS CONSTANT  FN1 

EASTERN (EXCL.  POCAHONTAS)----  105           101       94
93 

SOUTHERN----------------------   89            87            88
86 

WESTERN-----------------------  104           109           120
121 

FN1  CONSTANT COSTS COMMON TO ALL TRAFFIC ARE NOT INCLUDED. 

IN ALL TERRITORIES LESS-THAN-CARLOAD TRAFFIC (1939) WAS CARRIED AT A
DEFICIT, SOUTHERN MAKING THE BEST SHOWING, WESTERN THE WORST.  THAT IS
REVEALED IN THE FOLLOWING TABLE:

                         REVENUES    COSTS  FN1      DEFICIT 

EASTERN (EXCL.  POCAHONTAS)---------  $107,155,756  $133,308,907
$26,153,151 

SOUTHERN--------------------------- 46,635,725    47,451,184
815,459 

WESTERN----------------------------    88,797,938   123,146,215
34,348,277 

FN1  OUT-OF-POCKET COST PLUS TOTAL SOLELY RELATED EXPENSES PLUS
COLLECTION AND DELIVERY. 

THE COMMISSION FOUND THAT THE DIFFERENCE IN FULLY DISTRIBUTED COSTS
FOR ALL TRAFFIC BETWEEN THE EAST AND THE WEST IS LARGELY IN THE
CONSTANT OR FIXED EXPENSES AND THE PASSENGER AND LESS-THAN-CARLOAD
DEFICITS.  OUT-OF-POCKET EXPENSES IN THE SOUTH AND WEST ARE FREQUENTLY
AS LOW AS, OR EVEN LOWER THAN, THE OUT-OF-POCKET COSTS IN THE EAST. 
THE COMMISSION FURTHER FOUND THAT THE INCREASE IN FREIGHT TRAFFIC
VOLUME RECEIVED BY THE CARRIERS SUBSEQUENT TO 1939 SERVED TO REDUCE THE
UNIT COSTS OF TRANSPORTATION IN THE SOUTH AND WEST IN A PROPORTIONATELY
GREATER DEGREE THAN IN THE EAST.  A SOMEWHAT LARGER PERCENTAGE OF OUT
OF-POCKET EXPENSES IN THE EAST IS VARIABLE WITH ADDED TRAFFIC THAN IS
TRUE OF THE SOUTH AND WEST, DUE APPARENTLY TO THE FACT THAT THE EAST,
WITH ITS HIGHER TRAFFIC DENSITY, IS CLOSER TO ITS MAXIMUM CAPACITY THAN
IS TRUE OF THE OTHERS.  THUS THE INFLUENCE OF ADDED TRAFFIC IN REDUCING
AVERAGE COSTS IS GREATER IN THE WEST.  ON THE OTHER HAND CONSTANT COSTS
(PROPORTIONATELY LARGER IN THE SOUTH AND WEST) DO NOT INCREASE WITH
ADDED TRAFFIC.  AS ILLUSTRATIVE OF THOSE CIRCUMSTANCES THE COMMISSION
NOTED THE EFFECT OF INCREASES IN 1941 OF THE TON-MILES OF REVENUE
FREIGHT.  THEY INCREASED IN 1941, AS COMPARED WITH 1939, 43 PER CENT IN
THE EAST, 27 PER CENT IN POCAHONTAS, 44 PER CENT IN SOUTHERN AND 46 PER
CENT IN WESTERN TERRITORY.  THE COST PER REVENUE TON-MILE DECREASED BY
ONLY ABOUT 5 PER CENT IN THE EAST AND IN POCAHONTAS, AS COMPARED WITH
DECREASES IN EXCESS OF 10 PER CENT IN THE SOUTH AND WEST. 

THE COMMISSION SUMMARIZED THE RESULTS OF THE TERRITORIAL COST
COMPARISONS AS FOLLOWS:  THERE IS LITTLE SIGNIFICANT DIFFERENCE IN THE
COST OF FURNISHING TRANSPORTATION IN THE SOUTH AS COMPARED WITH THE
EAST, POCAHONTAS EXCLUDED.  IT IS PRINCIPALLY THE LOW TERMINAL COSTS IN
THE SOUTH THAT ACCOUNT FOR ITS RELATIVELY LOW TOTAL COSTS.  BASED ON
THE YEAR 1939 AND THE PERIOD 1930-1939, THE COSTS IN THE SOUTH ARE
EQUAL TO OR A LITTLE LOWER THAN THOSE IN THE EAST.  BASED ON THE PERIOD
1937-1941, THE COSTS IN THE SOUTH ARE SUBSTANTIALLY LOWER THAN THOSE IN
THE EAST.  FN25  BASED ON THE YEAR 1939 AND THE PERIOD 1930-1939, THE
COST OF RENDERING TRANSPORTATION SERVICE IN THE WEST IS BETWEEN 5 AND
10 PER CENT HIGHER THAN IN THE EAST, EXCLUDING POCAHONTAS.  BASED ON
1941, THAT DIFFERENCE IS REDUCED TO 5 PER CENT OR LESS.  FN26 

THE COMMISSION RECOGNIZED, OF COURSE, THAT CARRIERS MUST OBTAIN THEIR
REVENUE FROM THE TRAFFIC WHICH MOVES IN THEIR RESPECTIVE TERRITORIES. 
HENCE THE REVENUE-PRODUCING OR RATE-BEARING CHARACTERISTICS OF THE
DIFFERENT COMMODITIES WHICH COMPOSE THE TRAFFIC OF THE SEVERAL
TERRITORIES, I.E., THE CONSISTS AND VOLUMES OF TRAFFIC, ARE ALSO
IMPORTANT IN DETERMINING WHETHER TERRITORIAL CONDITIONS JUSTIFY
DIFFERENCES IN TERRITORIAL RATES. 

THE PERCENTAGE DISTRIBUTION OF TOTAL TONS CARRIED AND REVENUE BY
COMMODITY GROUPS FOR 1939 IS SHOWN IN THE FOLLOWING TABLE:

           (CHART OMITTED) 

THE COMMISSION ALSO CONSIDERED THE DISTRIBUTION OF CARLOAD TRAFFIC
BASED ON REVENUE TON-MILES FOR 1939 WHICH IT SUMMARIZED AS FOLLOWS:

ITEM                    EASTERN  POCAHONTAS  SOUTHERN   WESTERN

                                      DISTRICT    REGION     REGION
DISTRICT 

PRODUCTS OF AGRICULTURE---------------      10.7         2.7
15.8      26.8 

ANIMALS AND OTHER PRODUCTS------------       3.8          .5
2.2       4.5 

PRODUCTS OF MINES---------------------      49.3 87.4      40.8
20.1 

PRODUCTS OF FORESTS-------------------       3.1         1.6
11.6      13.6 

MANUFACTURES AND MISCELLANEOUS--------      33.1         7.8
29.6  35.0

                                    -------------------------------
----------

 GRAND TOTAL, CARLOAD---------------     100.0       100.0
100.0     100.0 AND THE CONTRIBUTION WHICH THE MAJOR CLASSES OF
COMMODITIES (CARLOAD LOTS) MAKE IN EXCESS OF OUT-OF-POCKET COSTS (1939)
APPEARS AS FOLLOWS:

             ITEM                   EASTERN  POCAHONTAS  SOUTHERN
WESTERN  UNITED

DISTRICT    REGION     REGION   DISTRICT  STATES 

PRODUCTS OF AGRICULTURE------------       4.2         3.1      15.8
18.0    10.8 

ANIMALS AND PRODUCTS---------------       1.5         1.1       3.4
4.3     2.7 

PRODUCTS OF MINES------------------      38.0        73.4      21.2
13.9  29.7 

PRODUCTS OF FORESTS----------------       2.8  2.8       9.4
8.1     5.7 

MANUFACTURES AND MISCELLANEOUS-----      53.5        19.6      50.2
55.7    51.1

GRAND TOTAL, CARLOAD------------     100.0       100.0     100.0
100.0   100.0 

A LARGE VOLUME OF ALL TRAFFIC MOVES ACROSS TERRITORIAL BOUNDARIES AND
THEREFORE BECOMES COMMON TO TWO OR MORE TERRITORIES.  AND AS RESPECTS
THE BALANCE, THE COMMISSION FOUND STRIKING SIMILARITY IN THE CONSISTS
OF THE TRAFFIC SO FAR AS ITS REVENUE-PRODUCING CHARACTERISTICS ARE
CONCERNED.  THE MANUFACTURES AND MISCELLANEOUS COMMODITY GROUP EMBRACES
TRAFFIC WHICH MOVES AT RELATIVELY HIGH RATES, I.E., RATES WHICH, TON
MILE FOR TON-MILE, MAKE A SUBSTANTIALLY GREATER THAN AVERAGE
CONTRIBUTION TO THE CONSTANT COSTS.  THE PERCENTAGES OF THE TOTAL TONS
CARRIED IN THAT GROUP AND THE CORRESPONDING PERCENTAGES FOR REVENUE
PRODUCED BY THEM ARE QUITE CLOSE TO EACH OTHER - PARTICULARLY THE EAST
AND THE WEST. 

THE COMMISSION STATED THAT THE REVENUE-PRODUCING QUALITIES, OR RATE
BEARING CHARACTERISTICS, OF THE COMMODITIES WHICH COMPOSE THE TRAFFIC
IN THOSE SEVERAL TERRITORIES CONSTITUTED "THE GOVERNING FACTOR" SO FAR
AS THE PROBLEM OF THE CONSISTS AND VOLUME OF TRAFFIC WAS CONCERNED. 
262 I.C.C. P. 694.  IT APPRAISED THE EVIDENCE WE HAVE RELATED AS
MEANING THAT "THE DIFFERENCES THAT EXIST IN THE CONSISTS OF TRAFFIC IN
THESE RESPECTIVE TERRITORIES ARE NOT SO SUBSTANTIAL OR OF SUCH
CHARACTER AS TO WARRANT THE PRESENT DIFFERENCES IN CLASS RATES."  ID.,
P. 695. 

THE FINDINGS OF THE COMMISSION BOTH AS TO THE CONSISTS OF THE FREIGHT
AND THE COSTS OF RENDERING THE SERVICE IN THE RESPECTIVE TERRITORIES
ARE VIGOROUSLY CHALLENGED, ESPECIALLY BY THE WESTERN ROADS. 

AS TO THE CONSISTS, IT IS SAID THAT THE EASTERN ROADS HAVE A MUCH
HEAVIER PERCENTAGE OF FREIGHT OF A KIND THAT PRODUCES EXCESS REVENUE TO
CARRY THE GENERAL EXPENSES.  FINDINGS OF THE COMMISSION ARE RELIED UPON
AS SHOWING THAT THE EASTERN ROADS' PREPONDERANCE OF HIGH-GRADE TRAFFIC
AFFORDS A GREATER SOURCE OF REVENUE THAN DOES THE HIGH PERCENTAGE OF
LOW-RATE PRODUCTS CARRIED BY THE WESTERN ROADS.  FN27  THESE UNDISPUTED
FACTS ARE SAID TO DISPROVE THE COMMISSION'S FINDING THAT THE CONSISTS
OF TRAFFIC IN THE RESPECTIVE TERRITORIES DO NOT WARRANT THE PRESENT
DIFFERENCES IN CLASS RATES. 

THESE FACTS, HOWEVER, RELATE TO DENSITY OF TRAFFIC, FN28  THE EFFECT
OF WHICH IS MERGED IN THE FINAL COST FIGURES.  BUT THE RELATION OF THE
CONSIST PROBLEM TO THE PROBLEM OF RATE STRUCTURES IS SOMEWHAT
DIFFERENT.  IT IS RELEVANT IN ORDER TO DETERMINE WHETHER THE CONSISTS
OF TRAFFIC ARE SO DIFFERENT IN THE SEVERAL TERRITORIES THAT SEPARATE
RATE STRUCTURES WITH DIFFERENT DISTRIBUTIONS OF THE TRANSPORTATION
BURDEN AMONGST COMMODITIES AND CLASSES OF FREIGHT ARE NECESSARY.  IT IS
APPARENT FROM THE STATISTICS WHICH WE HAVE REVIEWED THAT, WHILE THERE
IS A DIVERSITY IN TRAFFIC MOVED IN THE SEVERAL TERRITORIES, THE
DIVERSITY LARGELY DISAPPEARS WHEN COMMODITY GROUPS ARE CONSIDERED. 
THEN, ALSO, THE PERCENTAGES OF THE TOTAL TRAFFIC IN EACH TERRITORY
WHICH FALL UNDER THE SEVERAL COMMODITY GROUPS ARE NOT ONLY VERY SIMILAR
IN THE EAST, SOUTH, AND WEST, BUT EACH GROUP YIELDS ABOUT THE SAME
PERCENTAGE OF THE TOTAL REVENUES IN EACH OF THE TERRITORIES.  THE
CHOICE OF GROUPINGS IS PLAINLY A SPECIALIZED PROBLEM IN TRANSPORTATION
ECONOMICS UPON WHICH THE COMMISSION IS PECULIARLY COMPETENT TO PASS. 
ITS JUDGMENT THAT THE DIFFERENCES IN CONSISTS BETWEEN THE TERRITORIES
DO NOT JUSTIFY THE PRESENT DIFFERENCES IN INTERTERRITORIAL CLASS RATES
IS, INDEED, AN EXPERT JUDGMENT ENTITLED TO GREAT WEIGHT.  WE COULD NOT
DISTURB ITS FINDINGS ON THE FACTS OF THIS RECORD WITHOUT INVADING THE
PROVINCE RESERVED FOR THE EXPERT ADMINISTRATIVE BODY. 

AS TO THE COST STUDY LITTLE NEED BE SAID CONCERNING THE SOUTH.  ONCE
THE INTEGRITY OF THE COST STUDY IS ASSUMED,  FN29  THE FINDING OF THE
COMMISSION THAT THERE IS LITTLE SIGNIFICANT DIFFERENCE IN THE COST OF
FURNISHING TRANSPORTATION IN THE SOUTH AS COMPARED WITH THE EAST HAS
SUPPORT IN THE FACTS.  MOREOVER, THE DATA ON RATES OF RETURN AND
FREIGHT OPERATING RATIOS, TO WHICH WE WILL SHORTLY REFER, CORROBORATE
THE CONCLUSION REACHED FROM THE COST STUDY THAT THE DIFFERENCES IN
CLASS RATES BETWEEN THE EAST AND THE SOUTH ARE NOT JUSTIFIED BY
TERRITORIAL CONDITIONS.  THE FINDING THAT THE DISCRIMINATION AGAINST
THE SOUTH IS UNLAWFUL UNDER SEC. 3(1) IS THUS AMPLY SUPPORTED - A
CONCLUSION THAT THE SOUTHERN CARRIERS DO NOT CHALLENGE HERE. 

THE QUESTION IS A CLOSER ONE WHEN WE TURN TO THE WEST.  FOR, AS WE
HAVE SEEN, THE COSTS IN THE WEST ON THE AVERAGE RUN HIGHER THAN THOSE
IN THE EAST.  BASED ON THE YEAR 1939 AND THE PERIOD 1930-1939, THE COST
OF RENDERING TRANSPORTATION SERVICE IN THE WEST IS BETWEEN 5 AND 10 PER
CENT HIGHER THAN IN THE EAST, EXCLUDING POCAHONTAS.  BASED ON 1941,
THAT DIFFERENCE IS REDUCED TO 5 PER CENT OR LESS. 

AS WE HAVE SEEN, THE CLASS RATE STRUCTURE IS DISCRIMINATORY AS
BETWEEN THE EAST AND THE WEST.  THE LEVEL OF CLASS RATES IN THE WEST IS
FROM 30 TO 59 PER CENT HIGHER THAN THAT IN THE EAST.  THE PROBLEM OF
THE COMMISSION, THEREFORE, WAS TO DETERMINE WHETHER THAT DISPARITY IS
JUSTIFIED BY TERRITORIAL CONDITIONS.  THE COMMISSION FOUND THAT IT WAS
NOT SO JUSTIFIED.  THE PROBLEM FOR US IS WHETHER THE COMMISSION HAD A
BASIS FOR ITS CONCLUSION. 

WHILE THE WESTERN ROADS VIGOROUSLY CHALLENGE THE COMMISSION'S
FINDING, THEIR ARGUMENT IS IN THE MAIN DIRECTED TO THE POINT THAT SOME
DISPARITY IN RATES BETWEEN EAST AND WEST IS JUSTIFIED BY DIFFERING
TERRITORIAL COSTS.  NO PARTICULAR EFFORT IS MADE TO PROVE THAT THOSE
COSTS ARE A FAIR MEASURE OF THE EXISTING RATE DIFFERENCES. 

WE START, OF COURSE, FROM THE PREMISE THAT ON A SUBJECT OF
TRANSPORTATION ECONOMICS, SUCH AS THIS ONE, THE COMMISSION'S JUDGMENT
IS ENTITLED TO GREAT WEIGHT.  THE APPRAISAL OF COST FIGURES IS ITSELF A
TASK FOR EXPERTS, SINCE THESE COSTS INVOLVE MANY ESTIMATES AND
ASSUMPTIONS AND, UNLIKE A PROBLEM IN CALCULUS, CANNOT BE PROVED RIGHT
OR WRONG.  THEY ARE, INDEED, ONLY GUIDES TO JUDGMENT.  THEIR WEIGHT AND
SIGNIFICANCE REQUIRE EXPERT APPRAISAL. 

THE COMMISSION HAS CONCLUDED THAT WHILE COST STUDIES ARE HIGHLY
RELEVANT TO THESE RATE PROBLEMS THEY ARE NOT CONCLUSIVE.  IT SAID IN
THIS CASE: 

"DISCRETION AND FLEXIBILITY OF JUDGMENT WITHIN REASONABLE LIMITS HAVE
ALWAYS ATTENDED THE USE OF COSTS IN THE MAKING OF RATES.  COSTS ALONE
DO NOT DETERMINE THE MAXIMUM LIMITS OF RATES.  NEITHER DO THEY CONTROL
THE CONTOURS OF RATE SCALES OR FIX THE RELATIONS BETWEEN RATES OR
BETWEEN RATE SCALES.  OTHER FACTORS ALONG WITH COSTS MUST BE CONSIDERED
AND GIVEN DUE WEIGHT IN THESE ASPECTS OF RATE MAKING."  262 I.C.C. P.
693.    IN APPRAISING THE COST FIGURES RELEVANT HERE THE COMMISSION
PROCEEDED ON THE ASSUMPTION THAT THE 1941 TRAFFIC LEVEL IS MOST LIKELY
TO PREVAIL IN THE POSTWAR PERIOD.  IT THEREFORE STARTED WITH THE
ASSUMPTION THAT THE MARGIN OF DIFFERENCE BETWEEN THE COSTS IN THE WEST
AND THOSE IN THE EAST WAS SLIGHT AND NOT ACCURATELY MEASURED BY 1939
FIGURES, AND THAT IF, AS HAS BEEN THE FACT,  FN30  THE FREIGHT CARRIED
IN THE WEST INCREASED ABOVE THAT LEVEL THE UNIT COSTS OF TRANSPORTATION
IN THE WEST WOULD BE REDUCED TO A GREATER DEGREE THAN THOSE IN THE
EAST, FOR REASONS WHICH WE HAVE ALREADY STATED.    THE COMMISSION ALSO
HAD BEFORE IT CERTAIN DATA RELATIVE TO THE FINANCIAL CONDITION OF THE
VARIOUS ROADS, DATA WHICH WE HAVE NOT YET DISCUSSED.  THUS COMPARATIVE
ANALYSES OF THE RATES OF RETURN OF THE ROADS IN THE SEVERAL TERRITORIES
SHOWED THAT WHILE THE WESTERN ROADS HAVE HAD MANY LEAN YEARS, THE
RECENT PERIOD HAS PUT THEM AHEAD OF THE ROADS IN THE EAST.  THE
FOLLOWING TABLE SHOWS THE RATES OF RETURN IN PERCENTAGES BASED ON THE
NET RAILWAY OPERATING INCOME AND THE BOOK INVESTMENT, INCREASED FOR
CASH, MATERIALS AND SUPPLIES:

                      1936  1937  1938  1939  1940  1941  1942
1943 

EASTERN DISTRICT--------- 2.67  2.27  1.26  2.34 2.66  3.62  4.9
4.32 

SOUTHERN REGION---------- 2.52  2.35  1.9   2.5   2.57  4.24  6.51
5.73 

POCAHONTAS REGION-------- 7.58  6.61  4.54  5.89  6.21  6.67  5.29
5.22 

WESTERN DISTRICT--------- 1.88  1.71  1.09  1.65  2.06  3.36  5.8
5.22 

THE COMMISSION ALSO CONSIDERED THE TERRITORIAL FREIGHT OPERATING
RATIOS - THE PER CENT OF OPERATING REVENUES FROM FREIGHT ABSORBED BY
OPERATING EXPENSES ATTRIBUTED TO THE FREIGHT.  FN31 THEY ARE SHOWN IN
THE FOLLOWING TABLE:

    1936   1937   1938   1939   1940   1941   1942   1943 

EASTERN DISTRICT-------- 64.95  67.86  68.98  64.88  63.92  63.04
61.93  66.23 

SOUTHERN REGION--------- 65.38  67.77  66.73  64.99  65.34  61.07
56.84  59.41 

POCAHONTAS REGION------- 47.04  50.63  53.59  50.71  49.77  48.12
49.62  52.86 

WESTERN DISTRICT-------- 65.07  66.93  67.13  65.01  63.63  60.98
55.79  59.47 

IN LIGHT OF SUCH DATA THE COMMISSION SAID: 

"MAKING DUE ALLOWANCE FOR A SUBSTANTIAL DECLINE IN TRAFFIC FROM THE
WAR PEAK AND FOR THE FACT THAT IN THE DECADE PRECEDING 1940 THE
EARNINGS OF THE WESTERN RAIL RESPONDENTS WERE RELATIVELY LOW,
NEVERTHELESS, INSOFAR AS THE PROSPECTS OF TRAFFIC AND REVENUES IN THE
IMMEDIATE FUTURE CAN BE FORESEEN, THERE IS NO REASON TO CONCLUDE THAT
THE INTERIM ADJUSTMENT WILL HAVE ANY SERIOUS EFFECT UPON THOSE
RESPONDENTS."  264 I.C.C. 63-64. 

THE COMMISSION WENT ON TO NOTE THAT INTRASTATE CLASS RATES GENERALLY
IN MOST OF THE WESTERN STATES AND MANY OF THE INTERSTATE CLASS RATES IN
WESTERN TERRITORY WERE ALREADY LOWER THAN THOSE PRESCRIBED IN THE
INTERIM ORDERS.  IT ACCORDINGLY CONCLUDED THAT THE WESTERN ROADS
"CANNOT CONSISTENTLY MAINTAIN THESE SUB-NORMAL CLASS RATES AND CONTINUE
TO MAINTAIN THE RELATIVELY HIGH BASIS OF INTERSTATE CLASS RATES  ...  "
264 I.C.C. P. 64. 

MOREOVER, AS WE HAVE ALREADY NOTED, CLASS RATES HAVE TO A GREAT
EXTENT FALLEN INTO DISUSE.  THIS FACT IS RELEVANT HERE IN TWO
RESPECTS.  IN THE FIRST PLACE, THE ORDERS OF THE COMMISSION AFFECT
CLASS RATES AND CLASS RATES ALONE, THE COMMISSION NOT DEALING WITH
EXCEPTION AND COMMODITY RATES BY THE INTERIM ACTION WHICH IT HAS
TAKEN.  SO FAR AS PRESENT FREIGHT MOVEMENT IS CONCERNED, THE ORDERS
AFFECT A MUCH SMALLER FRACTION OF THE TRAFFIC IN THE WEST THAN IN THE
EAST.  THE COMMISSION SAID: 

"THE RECORD DOES NOT SUPPORT THE CONTENTIONS THAT THE REVENUE NEEDS
OF THE WESTERN RAIL RESPONDENTS WITH RESPECT TO THEIR CLASS-RATE
TRAFFIC ARE GREATER THAN THOSE OF THE EASTERN RAIL RESPONDENTS.  FROM
THE CARRIERS' REPORTS TO US FOR THE YEARS 1942, 1943, AS SHOWN IN OUR
ORIGINAL REPORT, AND 1944, IT CLEARLY APPEARS THAT THERE IS A GREATER
NEED FOR REVENUE BY RAIL CARRIERS IN THE EASTERN DISTRICT AS COMPARED
WITH RAIL CARRIERS IN THE WESTERN DISTRICT OR IN THE SOUTHERN REGION. 
THE REPORT SHOWS ALSO THAT A MUCH LARGER PERCENTAGE OF THE TOTAL
TRAFFIC IN THE EASTERN DISTRICT MOVES ON CLASS RATES THAN IN THE
WESTERN DISTRICT OR IN THE SOUTHERN REGION."  264 I.C.C. PP. 64-65. 

IN THE SECOND PLACE, THE EXISTING RATE STRUCTURE SINGLES OUT THE
CLASS RATE TRAFFIC IN THE WEST FOR THE PAYMENT OF UNUSUALLY HIGH
RATES.  THE CLASS RATE TRAFFIC IS LARGELY THAT OF SMALL SHIPPERS, WHO
DO NOT HAVE THE ABILITY TO OBTAIN THE BENEFIT OF THE LOWER EXCEPTION OR
COMMODITY RATES. 

WE CANNOT, THEREFORE, TREAT THIS CASE AS IF IT WERE ONE WHERE THE
COMMISSION, IN SPITE OF A SHOWING OF SOME INCREASED COST IN THE WEST,
REDUCED ALL FREIGHT RATES TO A LEVEL OF EQUALITY WITH THE EAST.  IT IS
A CASE OF DETERMINING WHETHER THE DISCRIMINATION AGAINST ONE SMALL
CLASS OF TRAFFIC IS WARRANTED BY THE SHOWING OF SOME INCREASED COST IN
THE WEST.  THE EARNING POWER OF THE CARRIERS, THEIR FREIGHT OPERATING
RATIOS, THEIR RATES OF RETURN, THE ESTIMATE OF THE VOLUME OF TRAFFIC IN
THE FUTURE, THE NATURE AND AMOUNT OF TRAFFIC PRESENTLY INVOLVED IN THE
CLASS RATE MOVEMENTS ARE ALL RELEVANT TO THE FINDING OF UNLAWFUL
DISCRIMINATION.  WE CANNOT SAY THAT THESE CONSIDERATIONS DO NOT
COUNTERBALANCE OR OUTWEIGH THE DISPARITY IN COSTS BETWEEN EAST AND
WEST.  THE APPRAISAL OF THESE NUMEROUS FACTORS IS FOR TRANSPORTATION
EXPERTS.  THEY MAY ERR.  BUT THE ERROR, IF ANY, IS NOT OF THE EGREGIOUS
TYPE WHICH IS WITHIN OUR REACH ON JUDICIAL REVIEW. 

AS WE HAVE NOTED, INTERSTATE COMMERCE COMMISSION V. DIFFENBAUGH,
SUPRA, P. 46, HELD THAT THE ACT, IN ITS CONDEMNATION OF DISCRIMINATION,
"DOES NOT ATTEMPT TO EQUALIZE FORTUNE, OPPORTUNITIES OR ABILITIES." 
BUT THE COMMISSION MADE NO SUCH EFFORT HERE.  IT ELIMINATED
INEQUALITIES IN THE CLASS RATES BECAUSE IT CONCLUDED THAT THE
DIFFERENCES IN THEM WERE NOT WARRANTED BY TERRITORIAL CONDITIONS.  WE
THINK THAT THE FINDINGS SUPPORTING THAT CONCLUSION ARE BASED ON
ADEQUATE EVIDENCE. 

IT IS ARGUED THAT THE COMPARISON OF RATES OF RETURN AND FREIGHT
OPERATING RATIOS OVERLOOKS THE FACT THAT BOTH REFLECT THE HIGHER
FREIGHT REVENUE LEVEL THAT PREVAILS IN THE WEST.  AND IT IS URGED THAT
WITHOUT THE RATE ADVANTAGE WHICH THE WESTERN CARRIERS NOW ENJOY, ANY
COMPARISON WHICH NOW APPEARS TO FAVOR THE WESTERN CARRIERS WOULD
DISAPPEAR.  THAT ARGUMENT ASSUMES A CONSTANCY IN FREIGHT TRAFFIC AND ON
THAT ASSUMPTION COULD BE MATHEMATICALLY DEMONSTRATED.  BUT WE ARE
DEALING HERE WITH A PROBLEM OF DISCRIMINATION - A WESTERN RATE
STRUCTURE WHICH, AS COMPARED WITH THE EASTERN, IS NOT WARRANTED BY
TERRITORIAL CONDITIONS AND WHICH PREJUDICES THE GROWTH AND DEVELOPMENT
OF THE WEST.  IT WOULD BE A LARGE ORDER TO SAY THAT THE REMOVAL OF THAT
TRADE BARRIER WILL HAVE NO EFFECT IN INCREASING TRAFFIC.  THE
ASSUMPTION ON WHICH THE FINDING OF PREJUDICE IS MADE IS, INDEED, TO THE
CONTRARY.  MOREOVER, THAT ARGUMENT WOULD PROTECT A DISCRIMINATORY RATE
STRUCTURE FROM THE POWER OF REVISION GRANTED THE COMMISSION UNDER SEC.
3(1) BY THE EASY ASSUMPTION THAT WITHOUT DISCRIMINATION THE CARRIERS
WOULD NOT THRIVE.  BUT THAT FLIES IN THE FACE OF HISTORY AND IS
CONTRARY TO THE COMMISSION'S EXPERT JUDGMENT ON THESE FACTS. 

SIXTH.  AN EXTENDED ARGUMENT IS MADE BY THE WESTERN ROADS,
CHALLENGING THE CLASS RATE REDUCTION ON LESS-THAN-CARLOAD LOTS.  THE
ARGUMENT IS TWOFOLD - FIRST, THAT THE CASE OF UNLAWFUL DISCRIMINATION
HAS NOT BEEN MADE OUT FOR THIS TYPE OF CLASS RATE TRAFFIC; SECOND, THAT
THE NEW LESS-THAN-CARLOAD CLASS RATES ARE CONFISCATORY. 

WE HAVE REFERRED TO SOME OF THE COST FIGURES ON LESS-THAN-CARLOAD
LOTS.  WE HAVE SEEN THAT THOSE COST FIGURES RUN HIGHER IN THE WEST THAN
IN THE EAST; THAT EVEN WHEN NO CONSTANT COSTS COMMON TO ALL TRAFFIC ARE
ALLOCATED TO LESS-THAN-CARLOAD TRAFFIC, THE DEFICIT IN THE WEST IS
SUBSTANTIALLY HIGHER THAN THAT IN THE EAST.  THE COMMISSION NOTED THAT
LESS-THAN-CARLOAD TRAFFIC AS A WHOLE IS CARRIED AT A DEFICIT IN ALL
TERRITORIES, EXCEPT POSSIBLY IN THE SOUTH.  IT ALSO NOTED THAT IN ALL
TERRITORIES IT WAS NOT BEARING ITS PROPER SHARE OF THE COSTS OF
TRANSPORTATION; THAT, APART FROM WARTIME LOADING, IT WAS NOT YIELDING,
ON THE AVERAGE, ITS OUT-OF-POCKET COSTS PLUS CONSTANT EXPENSES SOLELY
RELATED TO LESS-THAN-CARLOAD TRAFFIC  FN32  PLUS THE COST OF COLLECTION
AND DELIVERY, IN ANY TERRITORY EXCEPT POSSIBLY THE SOUTHERN.  262
I.C.C. P. 697. 

LITTLE NEED BE SAID CONCERNING THE ARGUMENT THAT A CASE OF UNLAWFUL
DISCRIMINATION HAS NOT BEEN ESTABLISHED IN THE CASE OF LESS-THAN
CARLOAD TRAFFIC.  THE COMMISSION CONCLUDED THAT IF LESS-THAN-CARLOAD
CLASS RATES WERE LEFT UNCHANGED WHILE CARLOAD CLASS RATES IN SOUTHERN,
SOUTHWESTERN AND WESTERN TRUNK-LINE TERRITORIES WERE REDUCED 10 PER
CENT, "THE COMPETITIVE RELATIONS BETWEEN SHIPPERS SHIPPING IN LESS-THAN
CARLOAD QUANTITIES AND THOSE SHIPPING IN CARLOADS" WOULD BE MATERIALLY
AFFECTED.  264 I.C.C. P. 66.  LESS-THAN-CARLOAD TRAFFIC IS LESS THAN 2
PER CENT OF TOTAL RAILROAD FREIGHT TONNAGE, AND MUCH OF THAT MOVES, NOT
ON CLASS RATES, BUT ON EXCEPTION RATES AND COMMODITY RATES.  IN WESTERN
TRUNK-LINE AND SOUTHWESTERN TERRITORIES MANY INTRASTATE AND INTERSTATE
CLASS RATES ARE NOW VOLUNTARILY MAINTAINED ON LESS-THAN-CARLOAD TRAFFIC
WHICH ARE LOWER THAN THE CORRESPONDING REDUCED INTERSTATE CLASS RATES
REQUIRED BY THE INTERIM ORDERS.  THERE ARE OTHER CIRCUMSTANCES, TO
WHICH WE WILL SHORTLY ADVERT, WHICH REINFORCE THE ACTION OF THE
COMMISSION IN REDUCING CLASS RATES ON LESS-THAN-CARLOAD TRAFFIC.  BUT
THE ONES WE HAVE MENTIONED ARE ADEQUATE TO SUPPORT THE COMMISSION ON
THE DISCRIMINATION PHASE OF THE PROBLEM.  THE COMMISSION WAS DEALING
NOT WITH DISCRIMINATION AGAINST A PARTICULAR COMMODITY BUT WITH
DISCRIMINATION AGAINST ENTIRE REGIONS.  IT WAS A COMPLETE RATE
STRUCTURE THAT WAS SUBJECT TO INQUIRY AND REVISION.  ONCE THE
COMMISSION CONCLUDED THAT UNLAWFUL DISCRIMINATION EXISTED IN THE MAIN
FEATURES OF THAT RATE STRUCTURE, IT WAS JUSTIFIED IN REMOVING IT.  IN
ELIMINATING THE DISCRIMINATION AND ESTABLISHING THE UNIFORMITY REQUIRED
BY THE LAW, IT WAS WARRANTED IN MAKING MINOR COLLATERAL READJUSTMENTS
SO THAT THE COMMISSION ITSELF WOULD NOT IN TURN CREATE NEW
DISCRIMINATIONS.  THE ADJUSTMENT OF THE LESS-THAN-CARLOAD CLASS RATES
WAS PERMISSIBLE ON THAT GROUND ALONE.  THE TRAFFIC AFFECTED WAS ONLY A
FRACTION OF 2 PER CENT OF THE TOTAL TRAFFIC.  WITHOUT THAT READJUSTMENT
THAT CLASS OF TRAFFIC WOULD BE PREJUDICED.  WITH THAT READJUSTMENT THE
PREJUDICE WOULD BE REMOVED AND THE ENTIRE RATE STRUCTURE - INTRASTATE
AND INTERSTATE - WOULD BE MORE NEARLY RATIONALIZED. 

THAT DOES NOT, OF COURSE, ANSWER THE ARGUMENT ON CONFISCATION.  THE
LATTER REQUIRES MORE EXTENDED TREATMENT. 

THE WESTERN ROADS IN THEIR PETITION FOR REHEARING BEFORE THE
COMMISSION RAISED THE CONFISCATION POINT.  BUT IN DOING SO THEY RESTED
ON THE RECORD BEFORE THE COMMISSION AND TENDERED NO ADDITIONAL
EVIDENCE.  IN THE DISTRICT COURT, HOWEVER, THEY PRESENTED FURTHER
EVIDENCE WHICH WAS RECEIVED OVER OBJECTION AND CONSIDERED BY THAT
COURT. 

THIS, THEREFORE, IS NOT A CASE LIKE BALTIMORE & OHIO R. CO. V. UNITED
STATES, 298 U.S. 349, 363, 371-372, WHERE THE COMMISSION REFUSED TO
RECEIVE EVIDENCE PROFFERED ON THE POINT OF CONFISCATION.  HERE, AS WE
HAVE SAID, THE COMMISSION RECEIVED ALL EVIDENCE THAT WAS OFFERED; AND
WHEN ITS ORDER WAS ANNOUNCED AND MADE KNOWN AND THE PETITION FOR
REHEARING WAS FILED, THE OPPORTUNITY TO TENDER ADDITIONAL EVIDENCE TO
BOLSTER THE CONFISCATION POINT WAS NOT ACCEPTED.  AS STATED IN
MANUFACTURERS R. CO. V. UNITED STATES, 246 U.S. 457, 489-490, AND IN
ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 53-54,
CORRECT PRACTICE REQUIRES THAT, WHERE THE OPPORTUNITY EXISTS, ALL
PERTINENT EVIDENCE BEARING ON THE ISSUES TENDERED THE COMMISSION SHOULD
BE SUBMITTED TO IT IN THE FIRST INSTANCE AND SHOULD NOT BE RECEIVED BY
THE DISTRICT COURT AS THOUGH IT WERE CONDUCTING A TRIAL DE NOVO.  THE
REASON IS PLAIN ENOUGH.  THESE PROBLEMS OF TRANSPORTATION ECONOMICS ARE
COMPLICATED AND INVOLVED.  FOR EXAMPLE, THE DETERMINATION OF
TRANSPORTATION COSTS AND THEIR ALLOCATION AMONG VARIOUS TYPES OF
TRAFFIC IS NOT A MERE MATHEMATICAL EXERCISE.  LIKE OTHER PROBLEMS IN
COST ACCOUNTING, IT INVOLVES THE EXERCISE OF JUDGMENT BORN OF INTIMATE
KNOWLEDGE OF THE PARTICULAR ACTIVITY AND THE MAKING OF ADJUSTMENTS AND
QUALIFICATIONS TOO SUBTLE FOR THE UNINITIATED.  FN33  MOREOVER, THE
IMPACT OF A PARTICULAR ORDER ON REVENUES AND THE ABILITY OF THE
ENTERPRISE TO THRIVE UNDER IT ARE MATTERS FOR JUDGMENT ON THE PART OF
THOSE WHO KNOW THE CONDITIONS WHICH CREATE THE REVENUES AND THE
FLEXIBILITY OF MANAGERIAL CONTROLS.  FOR SUCH REASONS, WE STATED IN
BOARD OF TRADE V. UNITED STATES, 314 U.S. 534, 546: 

"THE PROCESS OF RATE MAKING IS ESSENTIALLY EMPIRIC.  THE STUFF OF THE
PROCESS IS FLUID AND CHANGING - THE RESULTANT OF FACTORS THAT MUST BE
VALUED AS WELL AS WEIGHED.  CONGRESS HAS THEREFORE DELEGATED THE
ENFORCEMENT OF TRANSPORTATION POLICY TO A PERMANENT EXPERT BODY AND HAS
CHARGED IT WITH THE DUTY OF BEING RESPONSIVE TO THE DYNAMIC CHARACTER
OF TRANSPORTATION PROBLEMS." 

THUS WE THINK THAT IF THE ADDITIONAL EVIDENCE WAS NECESSARY TO PASS
ON THE ISSUE OF CONFISCATION, THE CAUSE SHOULD HAVE BEEN REMANDED TO
THE COMMISSION FOR A FURTHER PRELIMINARY APPRAISAL OF THE FACTS WHICH
BEAR ON THAT QUESTION.  BUT WE DO NOT TAKE THAT COURSE HERE FOR REASONS
WHICH WILL SHORTLY APPEAR. 

THE COMMISSION EXPLAINED ITS FINDING THAT LESS-THAN-CARLOAD TRAFFIC
WAS BEING CARRIED AT LARGE DEFICITS AND WAS NOT BEARING ITS PROPER
SHARE OF TRANSPORTATION COSTS.  THAT FINDING WAS BASED ON THE OPERATION
OF THE ROADS IN 1939 WHEN THE AVERAGE LOAD PER CAR OF LESS-THAN-CARLOAD
SHIPMENTS AMOUNTED TO ONLY 4.3 TONS IN THE WEST.  SINCE 1939 THERE HAS
BEEN A SUBSTANTIAL INCREASE IN THE AVERAGE LOADING OF SUCH SHIPMENTS,
WHICH WAS BROUGHT ABOUT UNDER WARTIME CONDITIONS AND WHICH HAS
MATERIALLY DECREASED THE UNIT COSTS ATTRIBUTABLE TO LESS-THAN-CARLOAD
TRAFFIC.  IN THE JUDGMENT OF THE COMMISSION IT WAS NOT SHOWN THAT
LOADINGS IN THE IMMEDIATE POSTWAR PERIOD WERE LIKELY TO DECLINE TO 1939
LEVELS.  MOREOVER, THE COST DATA ON LESS-THAN-CARLOAD TRAFFIC RELATED
TO SUCH TRAFFIC AS A WHOLE AND NOT SOLELY TO THAT MOVING ON CLASS
RATES.  AS WE HAVE NOTED, MUCH OF THIS TRAFFIC MOVES NOT ON CLASS RATES
BUT ON EXCEPTION RATES AND COMMODITY RATES.  THE CLASS-RATE TRAFFIC
BEARS THE HIGHEST RATES.  THE PAST FAILURE OF THIS TRAFFIC, AS A WHOLE,
TO CARRY ITS PROPER SHARE OF THE COSTS MAY WELL HAVE BEEN DUE IN LARGE
MEASURE TO THE MAINTENANCE OF EXCEPTION AND COMMODITY RATES. 

THE WESTERN ROADS PRESENT ELABORATE ANALYSIS (BASED BOTH ON THE
COMMISSION'S COST FIGURES AND ON COSTS AS ADJUSTED BY THE EVIDENCE
INTRODUCED IN THE DISTRICT COURT) WHICH SHOWS LESS-THAN-CARLOAD TRAFFIC
LARGELY CARRIED AT DEFICITS IRRESPECTIVE OF THE CLASS RATE PAID UNDER
THE INTERIM ORDERS.  THEY CONTEND THAT THE LOADING FIGURE OF 4.3 TONS
IS THE ONLY RELIABLE ONE TO USE IN PROJECTING THE COSTS AND REVENUES
INTO THE POSTWAR PERIOD, SINCE IT WAS IN FACT THE AVERAGE LOADING PRIOR
TO THE WAR, AND WILL BE ONCE MORE, AS SOON AS THE ORDER OF THE OFFICE
OF DEFENSE TRANSPORTATION WHICH REQUIRES TEN-TON LOADING IS REVOKED. 
AND COMPUTATIONS ARE PRESENTED BASED ON THAT FIGURE WHICH SHOW DEFICITS
IN LESS-THAN-CARLOAD TRAFFIC, DEFICITS WHICH ARE INCREASED WHEN THE
COMMISSION'S COST FIGURES ARE ADJUSTED TO REFLECT COST INCREASES TO
JANUARY 1, 1946.  ALL OF THOSE COMPUTATIONS INCLUDE AS CONSTANT COSTS
ONLY THOSE WHICH RELATED TO THIS TRAFFIC.  AND IT IS POINTED OUT THAT
IF ALL CONSTANT COSTS WERE INCLUDED, THE COMPUTED DEFICITS WOULD
SUBSTANTIALLY INCREASE. 

ON THE OTHER HAND THE COMMISSION SHOWS THAT ON THE BASIS OF THE NEW
INTERIM RATES THIS TRAFFIC IN THE WEST WOULD PRODUCE REVENUES IN EXCESS
OF OUT-OF-POCKET EXPENSES PLUS 4 PER CENT RETURN PLUS COLLECTION AND
DELIVERY EXPENSES PLUS LOSS AND DAMAGE PAYMENTS.  THAT COMPUTATION IS
BASED ON A TEN-TON LOADING FIGURE.  AND ON THE BASIS OF THOSE TYPES OF
COSTS, THERE IS AN EXCESS OF REVENUE EVEN THOUGH THE COSTS ARE
INCREASED TO THE JANUARY 1, 1946 LEVEL.  THE 1939 LESS-THAN-CARLOAD
COSTS  FN34  IN THE WEST WERE 30 PER CENT GREATER THAN REVENUES FROM
ALL SUCH TRAFFIC.  IF THE CLASS-RATE PORTION OF LESS-THAN-CARLOAD
TRAFFIC IS TAKEN, THE COSTS ARE 81 PER CENT OF THE REVENUES, PROVIDED
CERTAIN ADJUSTMENTS ARE MADE:  (1) INCREASED REVENUES FROM THE INCREASE
IN THE MINIMUM CHARGE PER SHIPMENT FROM 55 TO 75 CENTS WHICH THE
COMMISSION AUTHORIZED IN THIS PROCEEDING; (2) THE ELIMINATION OF LESS
THAN-CARLOAD TRAFFIC MOVING ON EXCEPTION, COMMODITY, AND INTRASTATE
RATES; (3) A 10-TON LOAD; AND (4) A 2.47 PER CENT RATE OF RETURN, WHICH
WAS THE ACTUAL RATE OF RETURN OF 1939. 

WE DO NOT STOP TO ANALYZE THE VARIOUS COMPUTATIONS IN ORDER TO
ASCERTAIN THE EXACT RELATION BETWEEN REVENUES AND COSTS OF LESS-THAN
CARLOAD TRAFFIC.  THAT, INDEED, WOULD NOT BE FEASIBLE ON THIS RECORD. 
FOR EVEN THE COMMISSION MADE NO ATTEMPT TO DETERMINE WHAT SHARE OF ALL
COSTS SHOULD FAIRLY BE ALLOCATED TO LESS-THAN-CARLOAD TRAFFIC.  HENCE,
IF THE COMMISSION HAD SPOKEN ITS FINAL WORD, AND IF IT WERE BELIEVED
NECESSARY AS A MATTER OF CONSTITUTIONAL LAW, SEE NORTHERN PACIFIC R.
CO. V. NORTH DAKOTA, 236 U.S. 585; CF. FEDERAL POWER COMMISSION V. HOPE
NATURAL GAS CO., 320 U.S. 591, 602, TO FIX A LESS-THAN-CARLOAD CLASS
RATE WHICH PRODUCED A FAIR RETURN ON THAT PARTICULAR TRAFFIC, THE CASE
WOULD HAVE TO BE REMANDED TO THE COMMISSION FOR APPROPRIATE FINDINGS ON
THIS PHASE.  THE DIFFICULTY OF TREATING THE ISSUE ON THE PRESENT RECORD
IS ILLUSTRATED IN ANOTHER WAY.  LESS-THAN-CARLOAD TRAFFIC, MORE THAN
CARLOAD TRAFFIC, CARRIES COSTS WHICH TO A DEGREE ARE DEPENDENT ON THE
CARRIER.  HEAVY OR LIGHT LOADINGS, SPEED OF SERVICE, RATIO OF EMPTY
RETURN CARS, METHODS OF LOADING FREIGHT SO AS TO REDUCE DAMAGE CLAIMS,
SUBSTITUTION OF AUXILIARY TRUCK SERVICE AND THE LIKE TURN ON
COMPETITIVE CONDITIONS.  CERTAINLY RATES NEED NOT COMPENSATE CARRIERS
FOR THE MOST EXPENSIVE WAY OF HANDLING LESS-THAN-CARLOAD SERVICE.  YET
THE PRESENT FINDINGS DO NOT ILLUMINATE THAT PROBLEM NOR PROVIDE THE
STANDARD IN TERMS OF SERVICE FOR MEASURING THE COMPENSATORY CHARACTER
OF THE LESS-THAN-CARLOAD CLASS RATES.  AND ON SUCH A PROBLEM THE
COMMISSION'S HIGHEST EXPERT JUDGMENT WOULD BE CALLED INTO PLAY. 

BUT THE COMMISSION HAS NOT FINISHED WITH THIS PROBLEM.  IN THE FIRST
PLACE, AS WE POINT OUT HEREAFTER, THE COMMISSION, SUBSEQUENT TO THE
ISSUANCE OF THESE INTERIM ORDERS, GRANTED A NATIONWIDE INCREASE IN
FREIGHT RATES, INCLUDING AN INCREASE ON LESS-THAN-CARLOAD RATES.  THE
TEMPORARY INJUNCTION HAS PREVENTED THE INTERIM ORDERS REDUCING CLASS
RATES IN THE WEST BY 10 PER CENT FROM GOING INTO EFFECT.  WHEN,
THEREFORE, THE INTERIM ORDERS DO GO INTO EFFECT, THE ACTUAL RATES
CHARGEABLE PRESUMABLY WILL BE INCREASED FROM THE LEVEL FIXED BY THE
INTERIM ORDERS TO THE LEVEL PRESCRIBED BY THE RECENT ORDER INCREASING
ALL FREIGHT RATES.  THUS NO LOSS HAS BEEN SUFFERED BY THE 10 PER CENT
REDUCTION ON LESS-THAN-CARLOAD CLASS RATES; AND ANY LOSS WHICH WOULD
HAVE BEEN SUFFERED BY THAT RATE REDUCTION HAS PROBABLY BEEN AT LEAST
LESSENED, IF NOT ELIMINATED, BY THE GENERAL RATE INCREASE.  THOUGH IT
IS ARGUED THAT SUCH IS NOT THE CASE, THE SHOWING IS TOO SPECULATIVE ON
THIS RECORD FOR US TO DECIDE WHAT THE PRECISE EFFECT OF THE REVISED
CLASS RATES ON LESS-THAN-CARLOAD TRAFFIC WILL BE.  IN THE SECOND PLACE,
AS WE HAVE NOTED, THE COMMISSION MADE THE PRESENT INTERIM ADJUSTMENT OF
CLASS RATES ON LESS-THAN-CARLOAD TRAFFIC AS A CONSEQUENCE OF ITS
REDUCTION IN CARLOAD CLASS RATES SO THAT LESS-THAN-CARLOAD SHIPPERS
WOULD NOT SUFFER A DISADVANTAGE FROM THE REMOVAL OF THE MAJOR
DISCRIMINATION IN THE CLASS RATE STRUCTURE.  THE INTERIM OR TEMPORARY
NATURE OF THE ADJUSTMENT WAS RECOGNIZED BY THE COMMISSION WHEN IT
ADMONISHED THE CARRIERS "TO GIVE CAREFUL CONSIDERATION TO THE RATES
MAINTAINED BY THEM ON LESS-THAN-CARLOAD TRAFFIC WITH A VIEW TO MAKING
READJUSTMENTS IN RATINGS OR RATES, AS PROMPTLY AS POSSIBLE, WHICH WILL
INSURE THAT THE RATES ON SUCH TRAFFIC ARE ON A COMPENSATORY LEVEL." 
264 I.C.C. 66-67.  AND IT RECOGNIZED BUT LEFT UNTOUCHED THE PROBLEM OF
DETERMINING WHAT WOULD BE THE PROPER SHARE OF TRANSPORTATION COSTS TO
BE BORNE BY LESS-THAN-CARLOAD TRAFFIC. 

THE JUSTIFICATION THE COMMISSION HAD FOR LEAVING THE PROBLEM IN THAT
CONDITION AT THIS STAGE OF THE PROCEEDINGS IS APPARENT.  THE CARRIERS
ARE NOW PREPARING THE NEW UNIFORM CLASSIFICATION.  THEY HAVE IT WITHIN
THEIR POWER TO FOLLOW THE LEAD SUGGESTED BY THE COMMISSION AND TO
PROPOSE CLASSIFICATION DIFFERENCES BETWEEN CARLOAD AND LESS-THAN
CARLOAD TRAFFIC WHICH WILL OBVIATE ANY ISSUE OF CONFISCATION RESPECTING
LESS-THAN-CARLOAD RATES.  AND IT HAS LIKEWISE LEFT OPEN THE QUESTION OF
READJUSTMENT OF THE CLASS RATES ON LESS-THAN-CARLOAD TRAFFIC WHEN THE
TOTAL PROGRAM, OF WHICH THESE INTERIM ORDERS ARE BUT A PART, IS PUT
INTO EFFECT. 

WHERE THE RESULT OF A RATE ORDER IS NOT CLEARLY SHOWN TO BE
CONFISCATORY BUT ITS PRECISE EFFECT MUST AWAIT OPERATIONS UNDER IT, THE
COURT HAS REFUSED TO SET IT ASIDE DESPITE GRAVE DOUBTS AS TO ITS
CONSEQUENCES.  SEE KNOXVILLE V. KNOXVILLE WATER CO., 212 U.S. 1, 17
18.  AND SEE WILLCOX V. CONSOLIDATED GAS CO., 212 U.S. 19, 54-55;
DARNELL V. EDWARDS, 244 U.S. 564, 570; BRUSH ELECTRIC CO. V. GALVESTON,
262 U.S. 443, 446; ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, SUPRA,
P. 69.  THE REASONS FOR FOLLOWING A LIKE COURSE ARE EQUALLY IMPELLING
HERE.  THE COMMISSION HAS NOT PLACED THE WESTERN ROADS IN A STRAIT
JACKET.  IT HAS MADE AN INTERIM REDUCTION ON LESS-THAN-CARLOAD CLASS
RATES AS AN INCIDENT TO ITS REMOVAL OF DISCRIMINATIONS IN CARLOAD CLASS
RATES.  IT HAS INDICATED THE COURSE TO BE FOLLOWED BY THE CARRIERS, AS
A PART OF THE OVERALL CLASSIFICATION AND CLASS RATE PROBLEM, TO MAKE
CERTAIN THAT THESE RATES ARE COMPENSATORY.  WE ARE THUS DEALING WITH A
PROBLEM WHICH IS IN FLUX, AN INTERIM ORDER MADE NECESSARY AS A RESULT
OF A COMPREHENSIVE REVISION OF ENTIRE RATE STRUCTURES.  MOREOVER, THE
CONCLUSION TO BE DRAWN FROM THE RECENT GENERAL INCREASE IN FREIGHT
RATES IS TOO UNCERTAIN AND SPECULATIVE ON THIS RECORD FOR US TO PASS ON
THE CONFISCATION ISSUE.  SEE BRUSH ELECTRIC CO. V. GALVESTON, SUPRA.
THE DISTRICT COURT AMPLY PROTECTED APPELLANTS WHEN IT OVERRULED THEIR
CLAIM THAT THE INTERIM RATES ARE CONFISCATORY WITHOUT PREJUDICE TO
ANOTHER SUIT TO CHALLENGE THE LEGALITY OF THOSE RATES IF, AFTER A FAIR
TEST, THEY PROVE TO BE BELOW THE LOWEST REACHES OF A REASONABLE MINIMUM
OR IF THE PERMANENT RATES DO NOT MEET THAT STANDARD.  SEE DARNELL V.
EDWARDS, SUPRA, P. 570. 

SEVENTH.  IT WAS HELD IN TEXAS & PACIFIC R. CO. V. UNITED STATES,
SUPRA, P. 650, THAT WHERE THE COMMISSION MAKES AN ORDER UNDER SEC. 3 TO
REMOVE AN UNLAWFUL DISCRIMINATION, THE CARRIERS MUST BE AFFORDED THE
OPPORTUNITY TO "ABATE THE DISCRIMINATION BY RAISING ONE RATE, LOWERING
THE OTHER, OR ALTERING BOTH."  BUT THAT RULING WAS QUALIFIED BY THE
STATEMENT THAT THE COMMISSION NEED NOT FOLLOW THAT COURSE IN CASE IT
ACTS UNDER SEC. 15(1).  ID., P. 650, NOTE 39.  SECTION 1(5)(A) OF THE
ACT PROVIDES THAT ALL CHARGES FOR THE TRANSPORTATION OF PROPERTY "SHALL
BE JUST AND REASONABLE, AND EVERY UNJUST AND UNREASONABLE CHARGE FOR
SUCH SERVICE OR ANY PART THEREOF IS PROHIBITED AND DECLARED TO BE
UNLAWFUL."  AND SEE SEC. 1(4).  SECTION 15(1) PROVIDES THAT WHEN THE
COMMISSION FINDS THAT "ANY INDIVIDUAL OR JOINT RATE, FARE, OR CHARGE"
OF A COMMON CARRIER IS "UNJUST OR UNREASONABLE OR UNJUSTLY
DISCRIMINATORY OR UNDULY PREFERENTIAL OR PREJUDICIAL," THE COMMISSION
MAY DETERMINE AND PRESCRIBE "WHAT WILL BE THE JUST AND REASONABLE"
RATE.  AND SEE SEC. 15(3).  THE WORDS "UNJUSTLY DISCRIMINATORY OR
UNDULY PREFERENTIAL OR PREJUDICIAL" PLAINLY REFER TO PRACTICES
CONDEMNED BY SEC. 3(1).  A PROPER FINDING OF UNLAWFUL DISCRIMINATION
UNDER SEC. 3(1) THUS ENABLES THE COMMISSION NOT ONLY TO DIRECT THE
CARRIERS TO ELIMINATE THE PRACTICE BUT ALSO, PURSUANT TO SEC. 15, TO
PRESCRIBE THE ALTERNATIVE.  SEE YOUNGSTOWN SHEET & TUBE CO. V. UNITED
STATES, 295 U.S. 476.  THUS THE COMMISSION IN THIS TYPE OF SITUATION,
AS IN THE CASE WHERE INTRASTATE COMMERCE IS INVOLVED, GEORGIA PUBLIC
SERVICE COMMISSION V. UNITED STATES, 283 U.S. 765, MAY REMOVE UNLAWFUL
DISCRIMINATIONS AND PRESCRIBE NEW RATES. 

IN TEXAS & PACIFIC R. CO. V. UNITED STATES, SUPRA, P. 650, IT WAS
ALSO STATED THAT, "A CARRIER OR GROUP OF CARRIERS MUST BE THE COMMON
SOURCE OF THE DISCRIMINATION - MUST EFFECTIVELY PARTICIPATE IN BOTH
RATES, IF AN ORDER FOR THE CORRECTION OF THE DISPARITY IS TO RUN
AGAINST IT OR THEM."  AND IT WAS HELD IN CENTRAL R. CO. V. UNITED
STATES, 257 U.S. 247, 259, THAT MERE PARTICIPATION IN JOINT RATES DOES
NOT MAKE CONNECTING CARRIERS PARTNERS IN DISCRIMINATION; THAT THEY CAN
BE HELD RESPONSIBLE FOR UNJUST DISCRIMINATION ONLY IF EACH CARRIER HAS
PARTICIPATED IN SOME WAY IN THE PRACTICE WHICH CAUSES THE
DISCRIMINATION, "AS WHERE A LOWER JOINT RATE IS GIVEN TO ONE LOCALITY
THAN TO ANOTHER SIMILARLY SITUATED."  IT IS ARGUED THAT THE SAME RULE
APPLIES IN THIS CASE SINCE, FOR EXAMPLE, THE WESTERN CARRIERS HAVE NO
CONTROL OF OR PARTICIPATION IN THE LOWER OFFICIAL INTRATERRITORIAL
RATES, ALTHOUGH THEY DO PARTICIPATE IN THE JOINT OR THROUGH
INTERTERRITORIAL RATES. 

IN REPLY IT IS SAID THAT CARRIERS IN OFFICIAL TERRITORY CONTROL RATES
WITHIN THAT AREA AND ALSO CONTROL, JOINTLY WITH THE CARRIERS IN EACH OF
THE OTHER TERRITORIES, THE RATES FROM EACH OF THEM INTO OFFICIAL.  THAT
COMMON SOURCE OF DISCRIMINATION IS SAID TO BE SUFFICIENT TO SUSTAIN THE
COMMISSION'S ACTION.  SEE ST. LOUIS SOUTHWESTERN R. CO. V. UNITED
STATES, 245 U.S. 136; CHICAGO, I. & L.R. CO. V. UNITED STATES, 270 U.S.
287.  BUT WE DO NOT NEED TO DECIDE THE QUESTION.  FOR THE PRINCIPLE
ANNOUNCED IN CENTRAL R. CO. V. UNITED STATES AND TEXAS & PACIFIC R. CO.
V. UNITED STATES, SUPRA, IS APPLICABLE ONLY WHERE THE COMMISSION IS
DIRECTING THE CARRIERS TO REMOVE THE DISCRIMINATION.  THOSE CASES HOLD
THAT THE COMMISSION MAY NOT REQUIRE CARRIERS TO DO WHAT THEY ARE
POWERLESS TO PERFORM.  BUT THE COURT RECOGNIZED IN CENTRAL R. CO. V.
UNITED STATES, SUPRA, P. 257, THAT WHERE THE COMMISSION ACTS PURSUANT
TO SEC. 1 TO REQUIRE CARRIERS TO ESTABLISH, IN CONNECTION WITH THROUGH
ROUTES AND JOINT RATES, REASONABLE RULES AND REGULATIONS, THAT PROBLEM
IS NOT INVOLVED.  FOR THEN THE COMMISSION CORRECTS THE UNLAWFUL
DISCRIMINATORY PRACTICE IN THE CASE OF EACH CARRIER BY PRESCRIBING THE
JUST AND REASONABLE RATE OR PRACTICE.  THE SAME IS TRUE WHERE, AS HERE,
THE COMMISSION IN ORDER TO ELIMINATE TERRITORIAL DISCRIMINATIONS
PROCEEDS UNDER SEC. 15(1) TO FIX NEW REASONABLE RATES.  IF THE HANDS OF
THE COMMISSION ARE TIED AND IT IS POWERLESS TO PROTECT REGIONS AND
TERRITORIES FROM DISCRIMINATION UNLESS ALL RATES INVOLVED IN THE RATE
RELATIONSHIP ARE CONTROLLED BY THE SAME CARRIERS, THEN THE 1940
AMENDMENT TO SEC. 3(1) FELL FAR SHORT OF ITS GOAL.  WE DO NOT BELIEVE
CONGRESS LEFT THE COMMISSION SO IMPOTENT. 

IT MAY NOT BE SAID IN THIS CASE, AS IT WAS HELD IN TEXAS & PACIFIC R.
CO. V. UNITED STATES, SUPRA, P. 633, THAT THERE WAS NO EVIDENCE OF THE
UNREASONABLENESS OF THE RATES, OR THAT THAT QUESTION WAS NOT IN ISSUE. 
THE COMMISSION HERE FOUND THAT THE RATES WERE UNJUST AND UNREASONABLE
UNDER SEC. 1 AND IT PROCEEDED TO FIX NEW RATES UNDER SEC. 15(1).  THE
FACTS WHICH ESTABLISH THAT THE DIFFERENCES IN RATES AS BETWEEN THE
SEVERAL TERRITORIES ARE NOT WARRANTED BY TERRITORIAL CONDITIONS PLAINLY
SUSTAIN ITS FINDINGS UNDER SEC. 1. 

AS WE HAVE SAID, THIS PROCEEDING PERTAINS ONLY TO CLASS RATES, WHICH
MOVE BUT A SMALL PERCENTAGE OF THE TRAFFIC.  IT IS, THEREFORE, ARGUED
THAT THE COMMISSION SHOULD NOT HAVE MADE ADJUSTMENTS IN THOSE RATES
WITHOUT BRINGING ABOUT SOME EQUALIZATION OF EXCEPTION AND COMMODITY
RATES UNDER WHICH THE BULK OF THE TRAFFIC IS MOVED.  BUT THERE IS NO
REASON IN LAW WHY THE COMMISSION NEED TACKLE ALL EVILS IN THE RATE
STRUCTURE OR NONE.  IT MAY TAKE ONE STEP AT A TIME.  CF. UNITED STATES
V. WABASH R. CO., 321 U.S. 403.  THE 10 PER CENT INTERIM RATE ORDER DID
NOT ATTEMPT TO BRING ABOUT COMPLETE ELIMINATION OF THE DISCRIMINATORY
FEATURES OF THE CLASS RATE STRUCTURE.  IT WAS ONLY AN APPROXIMATION OF
THAT RESULT, THE COMPLETE STEP AWAITING THE NEW UNIFORM
CLASSIFICATION.  BUT THE REASONS JUSTIFYING THAT PARTIAL MEASURE
LIKEWISE SUPPORT THE ACTION OF THE COMMISSION IN COMMENCING WITH CLASS
RATES WHEN IT TACKLED THE PROBLEM OF TERRITORIAL DISCRIMINATIONS. 

EIGHTH.  A DIFFERENT PROBLEM IS PRESENTED WHEN WE TURN TO THE 10 PER
CENT INCREASE IN CLASS RATES WHICH THE COMMISSION PRESCRIBED FOR
OFFICIAL TERRITORY.  APPELLANTS STRENUOUSLY URGE THAT THIS ACTION OF
THE COMMISSION WAS UNAUTHORIZED UNDER THE ACT, EVEN IF THE OTHER
PORTIONS OF ITS ORDERS WERE JUSTIFIED. 

THE FINDING OF THE COMMISSION ON THIS PHASE OF THE CASE WAS THAT THE
PRESENT CLASS RATES IN OFFICIAL TERRITORY WERE BELOW A JUST AND
REASONABLE LEVEL AND SHOULD BE INCREASED 10 PER CENT AS A PART OF THE
ADJUSTMENT OF THE RATE STRUCTURE IN ORDER TO REMOVE THE UNLAWFULNESS
BOTH AS RESPECTS THEIR UNREASONABLE LOW LEVEL AND THEIR UNDULY
PREFERENTIAL CHARACTER.  262 I.C.C. 700-701, 704-705; 264 I.C.C. 62. 
THAT FINDING IS SAID TO BE WITHOUT SUPPORT IN THE RECORD AND TO LACK
THE PRELIMINARY FINDINGS NECESSARY TO SUPPORT IT. 

IT IS ARGUED THAT RATES ARE NOT UNREASONABLY LOW IN VIOLATION OF SEC.
1 UNLESS THEY ARE EITHER NONCOMPENSATORY OR OTHERWISE THREATEN HARMFUL
EFFECTS UPON THE REVENUES AND TRANSPORTATION EFFICIENCY OF THE CARRIERS
IN QUESTION, OR OF THEIR COMPETITORS.  IT IS SAID, AS IS THE FACT, THAT
NO SUCH FINDINGS WERE MADE BY THE COMMISSION AND THAT ON THIS RECORD
THERE ARE NO FACTS WHICH COULD SUPPORT SUCH A FINDING. 

IF THIS WERE A CASE OF DETERMINING WHETHER EXISTING RATES PASSED
BELOW THE LOWEST OR ABOVE THE HIGHEST REACHES OF REASONABLENESS, THE
POINT MIGHT BE WELL TAKEN.  FN35  SEE UNITED STATES V. CHICAGO, M., ST.
P. & P.R. CO., 294 U.S. 499, 506.  BUT WE DO NOT HAVE HERE SUCH A
REVENUE PROBLEM.  THIS CASE PRESENTS PROBLEMS IN RATE RELATIONSHIPS,
THAT IS TO SAY, PROBLEMS OF A DISCRIMINATORY RATE STRUCTURE CONDEMNED
BY SEC. 3(1).  THE COMMISSION MAY REMOVE A DISCRIMINATION EFFECTED BY
RATES, EVEN WHEN THEY ARE WITHIN THE ZONE OF REASONABLENESS, IF THE
DISCRIMINATION IS FORBIDDEN BY SEC. 3(1).  AS MR. JUSTICE BRANDEIS
STATED IN UNITED STATES V. ILLINOIS CENTRAL R. CO., SUPRA, P. 524, THE
MERE FACT THAT ONE RATE IS "INHERENTLY REASONABLE, AND THAT THE RATE
FROM COMPETING POINTS IS NOT SHOWN TO BE UNREASONABLY LOW, DOES NOT
ESTABLISH THAT THE DISCRIMINATION IS JUST.  BOTH RATES MAY LIE WITHIN
THE ZONE OF REASONABLENESS AND YET RESULT IN UNDUE PREJUDICE."  THE
COMMISSION HAS THE POWER TO ADJUST THE RATES UPWARDS AND DOWNWARDS,
WITHIN THAT ZONE, IN ORDER TO ERADICATE THE DISCRIMINATION.  THAT POWER
IS NOT UNLIMITED; THERE ARE STANDARDS WHICH CONTROL ITS EXERCISE.  BUT
AS WE SHALL SEE, THE COMMISSION ACTED WITHIN PERMISSIBLE LIMITS HERE. 

ONCE THE COMMISSION HAS FOUND RATES TO BE "UNJUST OR UNREASONABLE OR
UNJUSTLY DISCRIMINATORY OR UNDULY PREFERENTIAL OR PREJUDICIAL," IT IS
EMPOWERED TO PRESCRIBE RATES WHICH ARE "JUST AND REASONABLE" OR "THE
MAXIMUM OR MINIMUM, OR MAXIMUM AND MINIMUM, TO BE CHARGED  ...  " SEC.
15(1).  IN YOUNGSTOWN SHEET & TUBE CO. V. UNITED STATES, SUPRA, THE
COMMISSION, ACTING UNDER SEC. 15(1), INCREASED RAIL RATES BY
PRESCRIBING WHAT IT FOUND TO BE REASONABLE MINIMUM RATES.  THERE WAS NO
FINDING THAT THE EXISTING, LOWER RATES WERE NOT COMPENSATORY.  THE
FINDING OF REASONABLENESS WAS PREMISED ON THE GROUNDS THAT "LOWER RATES
WOULD CREATE UNDUE DISCRIMINATION AGAINST SHIPPERS IN ORIGIN DISTRICTS
WHO CANNOT USE THE WATER-RAIL ROUTE, AND WOULD TEND TO DISRUPT THE RATE
STRUCTURE, AND TO DESTROY THE PROPER DIFFERENTIALS BETWEEN VARIOUS
PRODUCING DISTRICTS ON SHIPMENTS TO OHIO DESTINATIONS."  P. 479.  THE
COMMISSION RELIED NOT ONLY ON EVIDENCE BEARING UPON THE CHARACTER OF
THE SERVICE AND COST BUT ALSO ON A COMPARISON OF OTHER RATES IN THE
SAME OR ADJACENT TERRITORY.  THE COURT SUSTAINED THE ORDER SAYING, "THE
EXISTING RATE STRUCTURE FURNISHED SUPPORT FOR THE FINDING OF
REASONABLENESS."  P. 480.  IN SCANDRETT V. UNITED STATES, 32 F.SUPP. 
995, 996, AFF'D 312 U.S. 661, THE COMMISSION HAD FOUND THAT PROPOSED
REDUCED RATES WERE "COMPENSATORY, CONSIDERING ALL COSTS" BUT THAT THEY
WERE BELOW A MINIMUM REASONABLE LEVEL AND THEREFORE UNLAWFUL.  IT TOOK
THAT ACTION TO PREVENT DESTRUCTIVE COMPETITION BETWEEN RAIL, WATER, AND
MOTOR CARRIERS.  THE COURT SUSTAINED THE ORDER.  AND SEE JEFFERSON
ISLAND SALT MIN. CO. V. UNITED STATES, 6 F.2D 315. 

THESE CASES, TO BE SURE, RECOGNIZE THE POWER OF THE COMMISSION SO TO
FIX MINIMUM RATES AS TO KEEP IN COMPETITIVE BALANCE THE VARIOUS TYPES
OF CARRIERS AND TO PREVENT RUINOUS RATE WARS BETWEEN THEM.  THAT
PLAINLY IS ONE OF THE OBJECTIVES OF THE ACT, AND ONE OF THE REASONS WHY
THE COMMISSION WAS GRANTED THE POWER TO FIX MINIMUM RATES BY THE
TRANSPORTATION ACT OF 1920.  SEE H.R. REP. NO. 456, 66TH CONG., 1ST
SESS., P. 19.  CF. MISSISSIPPI VALLEY BARGE CO. V. UNITED STATES, 292
U.S. 282.  BUT THE ELIMINATION OF DISCRIMINATION OCCUPIES AN EQUALLY
HIGH PLACE IN THE STATUTORY SCHEME.  AND, AS WE HAVE SAID, THE POWER
GRANTED THE COMMISSION UNDER SEC. 15(1) INCLUDES THE POWER TO PRESCRIBE
RATES WHICH WILL SUBSTITUTE LAWFUL FOR DISCRIMINATORY RATE STRUCTURES. 
IF THE COMMISSION WERE POWERLESS TO INCREASE RATES TO A REASONABLE
MINIMUM IN ORDER TO ELIMINATE AN UNLAWFUL DISCRIMINATION, UNLESS
EXISTING RATES WERE SHOWN TO BE NON-COMPENSATORY OR UNLESS RUINOUS
COMPETITION WOULD RESULT, IT WOULD IN SOME CASES BE POWERLESS TO
PRESCRIBE THE REMEDY FOR UNLAWFUL PRACTICES.  THE PRESENT CASE IS A
GOOD ILLUSTRATION.  A 10 PER CENT REDUCTION OF RATES IN THE SOUTH AND
WEST WOULD REMOVE ONLY PART OF THE DISCRIMINATION.  ON THIS RECORD IT
IS MOST DOUBTFUL THAT A FULL REDUCTION OF THOSE RATES TO THE LEVEL OF
OFFICIAL TERRITORY WOULD BE WARRANTED.  YET IF THE RATES IN OFFICIAL
TERRITORY MAY NOT BE INCREASED UNLESS THE PRESENT ONES ARE SHOWN TO BE
NON-COMPENSATORY, DISCRIMINATION AGAINST THE SOUTH AND WEST AND IN
FAVOR OF OFFICIAL TERRITORY WOULD CONTINUE TO THRIVE.  FOR SHIPPERS IN
OFFICIAL TERRITORY WOULD STILL HAVE A PREFERRED RATE, AS COMPARED WITH
SHIPPERS FROM THE SOUTH AND WEST, IN REACHING THE GREAT MARKETS OF THE
EAST - A PREFERENCE NOT SHOWN TO BE WARRANTED BY TERRITORIAL
CONDITIONS.  THE RAISING OF RATES TO A REASONABLE MINIMUM WAS,
THEREFORE, AS RELEVANT HERE AS IT WAS IN YOUNGSTOWN SHEET & TUBE CO. V.
UNITED STATES, SUPRA, TO THE COMMISSION'S TASK OF PROVIDING A RATIONAL
RATE STRUCTURE. 

THE AUTHORITY OF THE COMMISSION TO INCREASE RATES IN ORDER TO REMOVE
DISCRIMINATION, EVEN THOUGH EXISTING RATES MAY BE COMPENSATORY, IS NOT
UNLIMITED.  SECTION 15A (2) OF THE ACT PROVIDES: 

"IN THE EXERCISE OF ITS POWER TO PRESCRIBE JUST AND REASONABLE RATES
THE COMMISSION SHALL GIVE DUE CONSIDERATION, AMONG OTHER FACTORS, TO
THE EFFECT OF RATES ON THE MOVEMENT OF TRAFFIC BY THE CARRIER OR
CARRIERS FOR WHICH THE RATES ARE PRESCRIBED; TO THE NEED, IN THE PUBLIC
INTEREST, OF ADEQUATE AND EFFICIENT RAILWAY TRANSPORTATION SERVICE AT
THE LOWEST COST CONSISTENT WITH THE FURNISHING OF SUCH SERVICE; AND TO
THE NEED OF REVENUES SUFFICIENT TO ENABLE THE CARRIERS, UNDER HONEST,
ECONOMICAL, AND EFFICIENT MANAGEMENT TO PROVIDE SUCH SERVICE." 

THE BALANCING AND WEIGHING OF THESE INTERESTS IS A DELICATE TASK. 
"WHETHER A DISCRIMINATION IN RATES OR SERVICES OF A CARRIER IS UNDUE OR
UNREASONABLE HAS ALWAYS BEEN REGARDED AS PECULIARLY A QUESTION
COMMITTED TO THE JUDGMENT OF THE ADMINISTRATIVE BODY, BASED UPON AN
APPRECIATION OF ALL THE FACTS AND CIRCUMSTANCES AFFECTING THE
TRAFFIC."  SWAYNE & HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 304. 
AND SEE UNITED STATES V. CHICAGO HEIGHTS TRUCKING CO., 310 U.S. 344,
352-353; BARRINGER & CO. V. UNITED STATES, 319 U.S. 1, 6-7.  WE MAY
ASSUME, HOWEVER, THAT IF THE RATES OF RETURN OF THE EASTERN CARRIERS
WERE SUBSTANTIALLY ABOVE THAT FOR THE SOUTH AND THE WEST, AN INCREASE
OF THE RATES FOR THE FORMER WOULD NOT BE PERMISSIBLE, EVEN IN ORDER TO
REMOVE A DISCRIMINATION.  BUT, AS WE HAVE SEEN, THE RATE OF RETURN IN
RECENT YEARS  FN36  HAS FAVORED THE SOUTHERN AND WESTERN CARRIERS, AS
HAVE THE FREIGHT OPERATING RATIOS.  THE COMMISSION TOOK THOSE FACTORS,
AS WELL AS THE OTHERS WE HAVE REVIEWED, INTO CONSIDERATION IN
DETERMINING THAT AN INCREASE IN RATES IN OFFICIAL TERRITORY WAS
WARRANTED.  264 I.C.C. 61-62. 

REVENUE NEEDS, LIKE COSTS OF RENDERING THE TRANSPORTATION SERVICE,
ARE GERMANE TO THE QUESTION WHETHER DIFFERENCES IN TERRITORIAL RATE
STRUCTURES ARE JUSTIFIED BY TERRITORIAL CONDITIONS.  THEY ARE AMONGST
THE STANDARDS WRITTEN INTO SEC. 15A; THEY REFLECT THE TOTALITY OF
CONDITIONS UNDER WHICH THE CARRIERS IN THE RESPECTIVE TERRITORIES
OPERATE.  SHOULD THE COMMISSION FAIL TO CONSIDER THEM IN DETERMINING
WHETHER THE DISCRIMINATION INHERENT IN THE RATE STRUCTURES WAS
UNWARRANTED, IT WOULD HAVE NOT COMPLETED ITS TASK.  THERE MAY BE
DIFFERENCES OF OPINION CONCERNING THE WEIGHT TO BE GIVEN THOSE FACTORS,
ESPECIALLY THE WEIGHT TO BE GIVEN THE RATE OF RETURN IN THE CURRENT
YEARS AS OPPOSED TO THAT IN THE PRECEDING DECADE.  BUT THEIR
SIGNIFICANCE IS FOR THE COMMISSION TO DETERMINE; AND, THOUGH WE HAD
DOUBTS, WE WOULD USURP THE ADMINISTRATIVE FUNCTION OF THE COMMISSION IF
WE OVERRULED IT AND SUBSTITUTED OUR OWN APPRAISAL OF THESE FACTORS. 

NINTH.  AFTER THE PRESENT INTERIM ORDERS WERE ISSUED, THE COMMISSION
GRANTED A NATIONWIDE INCREASE IN ALL FREIGHT RATES.  FN37  IT IS ARGUED
THAT THIS RATE INCREASE HAS RENDERED THE INTERIM ORDERS WITH WHICH WE
ARE HERE CONCERNED OBSOLETE AND UNENFORCIBLE.  IT IS SAID THAT IN
MAKING THE GENERAL RATE INCREASE, THE COMMISSION FOUND GREATLY
DIFFERENT CONDITIONS AFFECTING TRANSPORTATION RATES FROM THOSE IT FOUND
IN THESE PROCEEDINGS; THAT THE GREATER INCREASES ALLOWED IN OFFICIAL
TERRITORY  FN38  UNDO THE UNIFORMITY POLICY ON WHICH THE INTERIM ORDERS
ARE FRAMED; AND THAT THE ENFORCEMENT OF THE INTERIM ORDERS IN LIGHT OF
THESE CHANGED CONDITIONS WOULD PRODUCE RESULTS PLAINLY NOT
CONTEMPLATED. 

THIS IS NOT A CASE WHERE BY REASON OF CHANGED CONDITIONS THE RECORD
IS STALE.  THE CHANGED CIRCUMSTANCES DO NOT AFFECT THE ISSUES HERE. 
CF. INTERSTATE COMMERCE COMMISSION V. JERSEY CITY, 322 U.S. 503, 515;
UNITED STATES V. PIERCE AUTO LINES, 327 U.S. 515, 535.  TO REPEAT, THIS
IS A PROCEEDING TO ELIMINATE TERRITORIAL RATE DIFFERENCES NOT JUSTIFIED
BY TERRITORIAL CONDITIONS.  THE GENERAL RATE INCREASE RECENTLY GRANTED
BY THE COMMISSION WAS A REVENUE PROCEEDING.  REVENUE ADJUSTMENTS CAN BE
AND ARE SUPERIMPOSED ON SUCH RATE STRUCTURES AS EXIST.  THE FACT THAT
REVENUE ADJUSTMENTS MAY PRODUCE LACK OF UNIFORMITY IN RATES IS NOT
INCONSISTENT WITH THE DECISION IN THE PRESENT CASE.  AS WE SAID
EARLIER, SEC. 3(1) DOES NOT DICTATE A POLICY OF NATIONAL UNIFORMITY IN
RATES; IT ONLY REQUIRES THAT THE LACK OF UNIFORMITY IN RATES AMONG AND
BETWEEN TERRITORIES BE JUSTIFIED BY TERRITORIAL CONDITIONS.  THE
FINDING OF THE COMMISSION, IF SUPPORTED BY EVIDENCE, THAT THE REVENUE
NEEDS OF CARRIERS IN ONE TERRITORY DEMAND A LOWER OR A HIGHER RATE IN
THAT TERRITORY IS A JUSTIFICATION FOR A DIFFERENCE IN RATES AS BETWEEN
THAT TERRITORY AND OTHER TERRITORIES.  THE ORDER OF THE COMMISSION
GRANTING THE GENERAL RATE INCREASE IS NOT BEFORE US AND WE INTIMATE NO
OPINION ON IT.  IT IS SUFFICIENT FOR OUR PRESENT PURPOSES TO SAY THAT
IT EMPHASIZES THE DISTINCTION BETWEEN REVENUE AND RATE-RELATIONSHIP
CASES AND IN NO WAY IMPAIRS THE FINDING IN THE PRESENT CASE THAT THE
EXISTING CLASS-RATE STRUCTURE THAT HAS PREVAILED IN THE SEVERAL
TERRITORIES STANDS CONDEMNED UNDER SEC. 3(1).  NOR IS THERE ANY
INHERENT INCONSISTENCY BETWEEN THE INTERIM ORDERS REDUCING CLASS RATES
AND THE RECENT ORDER INCREASING ALL RATES.  THE LATTER WAS BASED ON
CONDITIONS IN A PERIOD SUBSEQUENT TO THE DISCRIMINATION PROCEEDINGS. 
WHETHER THE GENERAL RATE INCREASE WILL REQUIRE ADJUSTMENTS IN THE NEW
PERMANENT UNIFORM SCALE WHICH AWAITS THE NEW UNIFORM CLASSIFICATION IS
A QUESTION FOR THE COMMISSION WHEN THE NEW CLASSIFICATION IS READY. 
FN39 

OTHER ISSUES RAISED BY APPELLANTS NEED NOT BE DISCUSSED.  THE
INJUNCTION STAYING THE ORDERS OF THE COMMISSION IS VACATED AND THE
JUDGMENT OF THE DISTRICT COURT DISMISSING THE PETITIONS IS AFFIRMED. 

FN1  COMMODITIES ARE GROUPED INTO CLASSES, THOSE COMMODITIES IN EACH
CLASS PAYING THE SAME FREIGHT RATE PER 100 POUNDS.  FREQUENTLY A
COMMODITY IS IN SEVERAL CLASSES DEPENDING UPON WHETHER CARLOAD OR LESS
THAN-CARLOAD LOTS ARE INVOLVED, AND UPON THE METHOD OF PACKAGING.  ONE
CLASS IS CALLED FIRST-CLASS OR CLASS 100 AND EACH OTHER CLASS HAS BEEN
FIXED AS A PERCENTAGE, OR MULTIPLE, OF FIRST-CLASS.  THUS THE FREIGHT
CLASSIFICATIONS INVOLVED IN THESE CASES CONSIST OF LISTS CONTAINING
DESCRIPTIONS OF EVERY COMMODITY MOVING BY FREIGHT AND THE CLASS OR
CLASSES TO WHICH IT IS ASSIGNED, I.E., ITS CLASSIFICATION RATING OR
RATINGS.  SEE 262 I.C.C. PP. 465-472. 

FN2  THE CLASS RATES ARE IN THE FORM OF A SCHEDULE WHICH SHOWS THE
PRICE PER 100 POUNDS FOR MOVING FIRST-CLASS FREIGHT EVERY POSSIBLE
DISTANCE IT MAY BE MOVED.  THE COST OF SHIPMENT FOR A GIVEN COMMODITY
IS DETERMINED BY ASCERTAINING ITS CLASSIFICATION RATING, THE FIRST
CLASS RATE PER 100 POUNDS FOR THE HAUL INVOLVED, AND THE PERCENTAGE OF
THE FIRST-CLASS RATE TO WHICH THE CLASSIFICATION RATING IN QUESTION IS
SUBJECT.  SEE 262 I.C.C. PP. 515-519.    FN3  THERE ARE THREE OTHER
KINDS OF RATES: 

EXCEPTION RATES ARE RATES RESULTING FROM THE TRANSFER OF A COMMODITY
OUT OF ITS REGULARLY ASSIGNED CLASS IN THE CLASSIFICATION AND INTO
ANOTHER CLASS. 

COMMODITY RATES ARE SPECIAL RATES ESTABLISHED FOR PARTICULAR
COMMODITIES.  FOR PURPOSES OF THESE RATES A COMMODITY IS NOT GIVEN A
CLASSIFICATION RATING; THE RESULT IS THAT THE COMMODITY RATES HAVE NO
FIXED PERCENTAGE RELATIONSHIPS TO FIRST-CLASS RATES. 

COLUMN RATES ARE FIXED AS DEFINITE PERCENTAGES OF FIRST-CLASS RATES
BUT LIKE COMMODITY RATES THEY APPLY ONLY TO PARTICULAR COMMODITIES AND
ARE ASSIGNED NO REGULAR CLASS.    SEE 262 I.C.C. P. 562. 

FN4  SOME RATE TERRITORIES HAVE SUBDIVISIONS IN WHICH RATE
DIFFERENTIALS ARE APPLICABLE WHICH VARY THE CLASS RATES WITHIN THE
TERRITORY IN QUESTION. 

FN5 THE OFFICIAL CLASSIFICATION APPLIES WITHIN OFFICIAL TERRITORY AND
FROM WESTERN TRUNK-LINE TERRITORY TO OFFICIAL.  THE SOUTHERN
CLASSIFICATION APPLIES WITHIN SOUTHERN TERRITORY, BETWEEN OFFICIAL AND
SOUTHERN, AND FROM WESTERN TRUNK-LINE TO SOUTHERN.  WESTERN
CLASSIFICATION INCLUDES WESTERN TRUNK-LINE, SOUTHWESTERN AND MOUNTAIN
PACIFIC RATE TERRITORIES.  IT APPLIES WITHIN THOSE THREE TERRITORIES,
BETWEEN SOUTHWESTERN AND OFFICIAL, BETWEEN SOUTHWESTERN AND SOUTHERN,
FROM OFFICIAL TO WESTERN TRUNK-LINE, BETWEEN MOUNTAIN PACIFIC AND
OFFICIAL, FROM SOUTHERN TO WESTERN TRUNK-LINE, AND BETWEEN MOUNTAIN
PACIFIC AND SOUTHERN. 

FN6  WESTERN CLASSIFICATION, 25 I.C.C. 442; CONSOLIDATED
CLASSIFICATION, 54 I.C.C. 1; SOUTHERN CLASS RATE INVESTIGATION, 100
I.C.C. 513; CONSOLIDATED SOUTHWESTERN CASES, 123 I.C.C. 203; WESTERN
TRUNK-LINE CLASS RATES, 164 I.C.C. 1; EASTERN CLASS-RATE INVESTIGATION,
164 I.C.C. 314. 

FN7  EASTERN CLASS-RATE INVESTIGATION, 164 I.C.C. 314, 171 I.C.C.
481, 177 I.C.C. 156, 203 I.C.C. 357; SOUTHERN CLASS RATE INVESTIGATION,
100 I.C.C. 513, 109 I.C.C. 300, 113 I.C.C. 200, 128 I.C.C. 567; WESTERN
TRUNK-LINE CLASS RATES, 164 I.C.C. 1, 173 I.C.C. 637, 178 I.C.C. 619,
181 I.C.C. 301, 196 I.C.C. 494, 197 I.C.C. 57, 204 I.C.C. 595, 210
I.C.C. 312, 246 I.C.C. 119; CONSOLIDATED SOUTHWESTERN CASES, 123 I.C.C.
203, 205 I.C.C. 601.  SEE THE DISCUSSION IN 262 I.C.C. PP. 526 ET SEQ. 

FN8  THE CONSIST OF FREIGHT IN A GIVEN TERRITORY IS THE TOTALITY OF
COMMODITIES CARRIED IN THAT TERRITORY. 

FN9  NO CHANGE IN INTRASTATE CLASS RATES WAS MADE.  NOR WAS ANY
CHANGE MADE IN EXISTING EXCEPTION, COLUMN OR COMMODITY RATES.  SEE NOTE
3, SUPRA. 

FN10  ALABAMA, ARKANSAS, FLORIDA, GEORGIA, KANSAS, LOUISIANA,
MISSISSIPPI, MINNESOTA, NEBRASKA, NORTH CAROLINA, NORTH DAKOTA,
OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, THE STATE
COMMISSIONS OF A NUMBER OF THESE STATES, THE SOUTHERN GOVERNORS'
CONFERENCE, AND THE SOUTHEASTERN ASSOCIATION OF RAILROAD AND UTILITIES
COMMISSIONERS. 

FN11  WE DENIED THE MOTION OF THE UNITED STATES TO DISSOLVE THE
INJUNCTION.  328 U.S. 824.  SEE FED. R. CIV. P. 62(G). 

FN12  THE COMMISSION ADVISED CONGRESS THAT ITS INVESTIGATIONS
INSTITUTED IN 1939(THE BASIS OF THE ORDERS CHALLENGED IN THE PRESENT
CASES) WOULD BE CARRIED OUT PURSUANT TO THIS MANDATE.  SEE 262 I.C.C.
P. 689. 

FN13  SECTION 3(1) NOW READS: 

"IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF THIS PART TO MAKE, GIVE, OR CAUSE ANY UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON, COMPANY,
FIRM, CORPORATION, ASSOCIATION, LOCALITY, PORT, PORT DISTRICT, GATEWAY,
TRANSIT POINT, REGION, DISTRICT, TERRITORY, OR ANY PARTICULAR
DESCRIPTION OF TRAFFIC, IN ANY RESPECT WHATSOEVER; OR TO SUBJECT ANY
PARTICULAR PERSON, COMPANY, FIRM, CORPORATION, ASSOCIATION, LOCALITY,
PORT, PORT DISTRICT, GATEWAY, TRANSIT POINT, REGION, DISTRICT,
TERRITORY, OR ANY PARTICULAR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR
UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER:
PROVIDED, HOWEVER, THAT THIS PARAGRAPH SHALL NOT BE CONSTRUED TO APPLY
TO DISCRIMINATION, PREJUDICE, OR DISADVANTAGE TO THE TRAFFIC OF ANY
OTHER CARRIER OF WHATEVER DESCRIPTION." 

FN14  IT IS POINTED OUT IN THIS CONNECTION THAT TEXAS & PACIFIC R.
CO. V. UNITED STATES, SUPRA, WHILE HOLDING THAT A PORT WAS NOT A
"LOCALITY" WHEN IT WAS ONLY A GATEWAY THROUGH WHICH SHIPMENTS WERE
MADE, RECOGNIZED THAT A PORT WAS A "LOCALITY" WHEN IT WAS A POINT OF
ORIGIN OR DESTINATION.  289 U.S. P. 638. 

FN15  SENATOR WHEELER WHO HAD CHARGE OF THE BILL ON THE FLOOR OF THE
SENATE STATED CONCERNING THE AMENDMENT TO SEC. 3(1):  "THE PREVIOUS
PROVISION WITH REGARD TO 'DISCRIMINATION' SIMPLY REFERRED TO
DISCRIMINATION AS TO 'LOCALITY, PORT, PORT DISTRICT, GATEWAY, TRANSIT
POINT' WITHOUT SPECIFYING THE REGION, DISTRICT, OR TERRITORY.  SO WE
FELT THAT BY BROADENING THE LANGUAGE WE WOULD AT LEAST TAKE AWAY THAT
EXCUSE, AND WE WOULD PROVIDE EXPRESSLY THAT THE COMMISSION SHOULD NOT
DISCRIMINATE IN ITS RATE STRUCTURES."  84 CONG. REC., P. 5889. 

FN16  SEE NOTE 2, SUPRA. 

FN17  SEE NOTE 3, SUPRA. 

FN18  THE COMMISSION STATED, 262 I.C.C. PP. 695-696: 

"ALTHOUGH MANUFACTURING HAS GROWN IN THE SOUTH AND SOUTHWEST AND TO A
LESSER EXTENT IN WESTERN TRUNK-LINE TERRITORY IN THE LAST DECADE, IT IS
STILL VASTLY LESS IN DIVERSIFICATION AND AMOUNT THAN IN OFFICIAL
TERRITORY.  THE INCREASES IN MANUFACTURING IN THESE TERRITORIES HAS
CREATED A DEMAND FOR RATES WHICH WILL AT ONCE PERMIT THE FREE MOVEMENT
OF THE MANUFACTURED ARTICLES, BUT BECAUSE OF THE LEVEL OF THE
INTRATERRITORIAL AND INTERTERRITORIAL CLASS RATES, SUCH FREE MOVEMENT
HAS BEEN IMPEDED INSOFAR AS SUCH COMMODITIES MOVE AT CLASS RATES.  IN
MOST INSTANCES IT HAS BEEN NECESSARY EITHER TO REDUCE THE CLASS-RATE
LEVELS OR TO ESTABLISH EXCEPTION OR COMMODITY RATES IN ORDER THAT THE
MANUFACTURED PRODUCTS MAY MOVE FREELY, AND THIS ACTION HAS FREQUENTLY
BEEN SUBJECT TO LONG DELAYS BECAUSE OF THE FAILURE OF INDIVIDUAL
CARRIERS OR GROUPS OF CARRIERS TO AGREE UPON A BASIS. 

"OFFICIAL TERRITORY IS THE GREATEST CONSUMING TERRITORY IN THE
COUNTRY, AND IS THE MARKET THAT NEARLY ALL MANUFACTURERS DESIRE TO
REACH, PARTICULARLY WHERE THEY HAVE A SURPLUS OF THEIR PRODUCTS TO
SELL.  IN SHIPPING TO OFFICIAL TERRITORY, MANUFACTURERS IN THE OTHER
TERRITORIES NOT ONLY HAVE THE DISADVANTAGE OF LOCATION, BUT ARE
SUBJECTED TO AN ADDITIONAL BURDEN IN THOSE INSTANCES WHERE THEY MUST
PAY CLASS RATES ON A MUCH HIGHER LEVEL THAN THEIR COMPETITORS IN
OFFICIAL TERRITORY.  THIS SITUATION REACTS TO THE DISADVANTAGE OF
MANUFACTURERS IN THE OTHER TERRITORIES, AND TO THE ADVANTAGE OF THOSE
IN OFFICIAL TERRITORY, TENDS TO RESTRICT THE GROWTH AND EXPANSION OF
THE MANUFACTURERS IN THE OTHER TERRITORIES, AND, TO SOME EXTENT, TO
PREVENT THE ESTABLISHMENT OF NEW MANUFACTURING PLANTS IN THOSE
TERRITORIES." 

FN19  IN NORTHERN PACIFIC R. CO. V. NORTH DAKOTA, 236 U.S. 585, 597,
THE COURT STATED, "THE OUTLAYS THAT EXCLUSIVELY PERTAIN TO A GIVEN
CLASS OF TRAFFIC MUST BE ASSIGNED TO THAT CLASS, AND THE OTHER EXPENSES
MUST BE FAIRLY APPORTIONED.  IT MAY BE DIFFICULT TO MAKE SUCH AN
APPORTIONMENT, BUT WHEN CONCLUSIONS ARE BASED ON COST THE ENTIRE COST
MUST BE TAKEN INTO ACCOUNT." 

FN20  FOR DESCRIPTION OF EXACT BOUNDARIES, SEE 262 I.C.C. 605.  FOR
SOME COST PURPOSES THE UNITED STATES IS ALSO DIVIDED INTO 11 COST
TERRITORIES, VARIOUS COMBINATIONS OF WHICH ARE EQUIVALENT TO THE RATE
TERRITORIES.  FOR DEFINITIONS OF THESE COST TERRITORIES, AND A
COLLECTION OF A SUBSTANTIAL PORTION OF THE COMMISSION'S COST DATA, SEE
S. DOC. NO. 63, 78TH CONG., 1ST SESS. 

FN21  THE SUM OF THE OUT-OF-POCKET COSTS PLUS A PRO RATA DISTRIBUTION
OF THE CONSTANT OR FIXED COSTS IS REFERRED TO AS FULLY DISTRIBUTED
COST. 

FN22  262 I.C.C. P. 578.  SIMILAR CONDITIONS CALL FOR THE EXCLUSION
OF KENTUCKY IN CONSIDERING FIGURES FOR THE SOUTHERN REGION.  AND SEE
GENERAL COMMODITY RATE INCREASES, 223 I.C.C. 657. 

FN23  NOT INCLUDING POCAHONTAS IN EASTERN TERRITORY FIGURES. 
RELATIVE COSTS WERE NOT SHOWN SEPARATELY FOR WESTERN TRUNK-LINE,
SOUTHWESTERN, AND MOUNTAIN PACIFIC TERRITORIES, THE COMMISSION NOTING
THAT DIFFERENCES BETWEEN COSTS FOR THE TOTAL WEST AND FOR EACH OF THOSE
THREE RATE TERRITORIES WERE RELATIVELY SMALL.  262 I.C.C. P. 578. 

FN24  WEIGHTING GIVEN TO THE COSTS FOR EACH CLASS OF EQUIPMENT WAS
BASED ON THE VOLUME OF TRAFFIC HANDLED IN EACH TYPE OF EQUIPMENT IN THE
UNITED STATES.  TERMINAL COSTS FOR EACH CLASS OF EQUIPMENT WERE
WEIGHTED FOR THE TOTAL UNITED STATES TRAFFIC HANDLED IN EACH CLASS OF
EQUIPMENT AS MEASURED BY TONS ORIGINATED PLUS TONS TERMINATED.  LINE
HAUL COSTS BY CLASSES OF EQUIPMENT WERE WEIGHTED FOR THE TON-MILES OF
TRAFFIC HANDLED IN EACH CLASS OF EQUIPMENT. 

FN25  IF POCAHONTAS IS INCLUDED IN THE EAST, THE COSTS FOR THE SOUTH,
BASED ON THE YEAR 1939, ARE BETWEEN 3 AND 6 PER CENT ABOVE THOSE FOR
THE EAST; FOR THE YEARS 1930-1939, BETWEEN 6 AND 8 PER CENT HIGHER; FOR
THE YEARS 1937-1941, ABOUT THE SAME. 

FN26  IF POCAHONTAS IS INCLUDED IN THE EAST FOR 1930-1939, THE COST
IN THE WEST IS 18 PER CENT HIGHER; BASED ON 1939, APPROXIMATELY 15 PER
CENT HIGHER; BASED ON 1941, ABOUT 10 PER CENT HIGHER. 

FN27  IT IS POINTED OUT, AS THE COMMISSION FOUND, THAT LIVESTOCK IS A
COMMODITY WHICH CANNOT DO MORE THAN PAY ITS OWN WAY; THAT PRODUCTS OF
THE FOREST ARE SUBJECT TO FREIGHT RATES BELOW THE HIGHER BRACKETS; THAT
AGRICULTURAL PRODUCTS CARRY A LOW RATE.  THE WESTERN DISTRICT ROADS
ORIGINATED 36.91 PER CENT OF THE TOTAL TONS OF CARLOAD TRAFFIC
ORIGINATED IN THE UNITED STATES (EXCLUDING POCAHONTAS) IN 1941, WHILE
THE EASTERN ROADS ORIGINATED 47.40 PER CENT.  TO THAT DISPARITY IS
ADDED THE FACT THAT OF THE TOTAL AGRICULTURAL PRODUCTS ORIGINATED IN
THE COUNTRY IN 1941 THE WESTERN DISTRICT ROADS ORIGINATED 68.82 PER
CENT AS CONTRASTED TO 20.88 PER CENT BY THE EASTERN CARRIERS EXCLUDING
POCAHONTAS.  FOR MANUFACTURES AND MISCELLANEOUS TONNAGE THE PERCENTAGES
WERE 28.06 PER CENT AND 60.66 PER CENT, RESPECTIVELY.  IT IS POINTED
OUT THAT WHILE THE DIFFERENCE BETWEEN THE PERCENTAGE OF AGRICULTURAL
PRODUCTS ORIGINATED BY THE WESTERN CARRIERS (68.82 PER CENT) AND THE
PERCENTAGE OF MANUFACTURES AND MISCELLANEOUS ORIGINATED BY THE EASTERN
CARRIERS (60.66 PER CENT) IS ONLY 8 PER CENT, THE EASTERN ROADS'
TONNAGE OF THE LATTER GROUP OF COMMODITIES (WHICH ARE HIGH-GRADE
TRAFFIC) IS ALMOST THREE TIMES THE TONNAGE OF PRODUCTS OF AGRICULTURE
ORIGINATED BY THE WESTERN CARRIERS.  LIKE COMPARISONS ARE MADE BETWEEN
OTHER GROUPS OF COMMODITIES CARRIED BY THE EASTERN AND WESTERN CARRIERS
RESPECTIVELY.  OF THE TOTAL TONS OF ANIMALS AND PRODUCTS ORIGINATED IN
THE  COUNTRY IN 1941(EXCLUDING POCAHONTAS), THE WESTERN ROADS
ORIGINATED 63.03 PER CENT, THE EASTERN, 28.51 PER CENT.  OF THE TOTAL
TONS OF PRODUCTS OF FORESTS ORIGINATED IN 1941, THE RESPECTIVE
PERCENTAGES WERE 58.73 PER CENT AND 7.52 PER CENT.  AND FOR PRODUCTS OF
MINES THE PERCENTAGES WERE 33.31 PER CENT AND 49.85 PER CENT,
RESPECTIVELY. 

FN28  THE 1941 REVENUE TON MILES PER MILE OF LINE WERE AS FOLLOWS: 

EASTERN DISTRICT (EXCLUDING POCAHONTAS)..........  3,392,964 

POCAHONTAS REGION................................  7,519,840 

WESTERN DISTRICT.................................  1,358,041 

FN29  COSTS DEVELOPED IN THE COST SCALES AND THE CARRIERS' TOTAL
KNOWN EXPENSES BY COST TERRITORIES WERE RECONCILED WITHIN A VERY CLOSE
MARGIN AS APPEARS FROM THE FOLLOWING TABLE:

AGGREGATE

                      EXPENSES, INCREASED   ACTUAL EXPENSES
RATIO (PERCENT)

FOR A 4-PERCENT      AS REPORTED BY       OF COMPUTED 

TERRITORY          RETURN COMPUTED    CARRIERS INCREASED

                        BY APPLYING       FOR A 4-PERCENT  EXPENSES
TO ACTUAL

                       COSTS TO TRAFFIC      RETURN (1939)
EXPENSES

  HANDLED (1939) 

EASTERN----------------       $1,426,950,260      $1,451,484,949
     98.3 

POCAHONTAS-------------          183,076,590         185,387,990
98.8 

SOUTHERN---------------          450,448,155    449,001,663
100.3 

WESTERN----------------        1,382,549,982       1,395,188,845
     99.1

                     ----------------------------------------------
-------------- 

UNITED STATES----------        3,443,024,987       3,481,063,447
     98.9 

THE COMMISSION STATED, "JUDGING FROM THE ABOVE TABLE, WHATEVER ERRORS
MAY EXIST IN THE  ... STUDIES, THEY HAVE NOT HAD THE EFFECT OF
OVERSTATING OR UNDERSTATING THE CARRIERS' COSTS IN THE AGGREGATE TO ANY
APPRECIABLE DEGREE."  262 I.C.C. P. 587. 

FN30  IN THE TWELVE MONTHS ENDED OCTOBER 31, 1946, THE REVENUE TONS
CARRIED IN THE WEST WERE 26 PER CENT HIGHER THAN FOR THE YEAR 1941, AND
THE REVENUE TON MILES WERE 43 PER CENT HIGHER THAN IN 1941. 

FN31  SEE WHITE, ANALYSIS OF RAILROAD OPERATIONS (1946) PP. 14-15,
PP. 69, ET SEQ.; LOCKLIN, ECONOMICS OF TRANSPORTATION (1938) P. 581;
MILLER, INLAND TRANSPORTATION (1933) PP. 500-502. 

FN32  CONSTANT COSTS SOLELY RELATED TO LESS-THAN-CARLOAD TRAFFIC ARE
THOSE COSTS WHICH DO NOT VARY WITH THE VOLUME OF THE TRAFFIC, BUT WHICH
COULD BE ELIMINATED IF NO LESS-THAN-CARLOAD TRAFFIC WERE HANDLED. 

FN33  SEE HAMILTON, COST AS A STANDARD FOR PRICE, 4 LAW & CONTEMP. 
PROB., 321, 329: 

"NOW AND THEN A HARDY SOUL, EQUIPPED WITH SIMPLE FAITH AND A
CALCULATING MACHINE, ESSAYS THE ADVENTURE OF RATES BASED UPON THE TRUE
COSTS OF PARTICULAR SERVICES.  THE FEAT IS, OF COURSE, TECHNICALLY
IMPOSSIBLE, FOR VALUE JUDGMENTS OR EMPIRICAL RULES ARE ESSENTIAL TO THE
DISTRIBUTION OF OVERHEAD.  A CALCULATION OF THE REAL COST OF
TRANSPORTING COTTON-SEED IN LESS THAN CARLOAD LOTS FROM LAMPASSAS,
TEXAS TO KANKAKEE, ILLINOIS, IS A STUBBORN EXERCISE IN IMPUTATION." 
FN34  OUT-OF-POCKET COSTS PLUS SOLELY RELATED CONSTANT COSTS. 

FN35  THE POINT MIGHT ALSO BE WELL TAKEN IF THIS WERE A PROCEEDING
UNDER SEC. 13(4) TO DETERMINE WHETHER INTRASTATE TRAFFIC WAS PRODUCING
ITS FAIR SHARE OF THE EARNINGS REQUIRED TO MEET MAINTENANCE AND
OPERATING COSTS AND TO YIELD A FAIR RETURN ON THE PROPERTY DEVOTED TO
INTERSTATE AND INTRASTATE TRANSPORTATION.  FLORIDA V. UNITED STATES,
SUPRA; UNITED STATES V. LOUISIANA, 290 U.S. 70; NORTH CAROLINA V.
UNITED STATES, SUPRA. 

FN36  AS WE POINT OUT HEREAFTER, AFTER THE PRESENT INTERIM ORDERS
WERE ISSUED, THE COMMISSION GRANTED A GENERAL FREIGHT RATE INCREASE. 
SEE EX PARTE NO. 162, NOTE 37, INFRA.  IN THAT CASE IT REVIEWED THE
RATES OF RETURN OF THE ROADS IN THE SEVERAL TERRITORIES BASED ON THE
RATES IN EFFECT AT THE TIME, WHICH OF COURSE DID NOT INCLUDE THE 10 PER
CENT INCREASE IN CLASS RATES FOR OFFICIAL TERRITORY AUTHORIZED IN THIS
PROCEEDING BUT STAYED BY THE DISTRICT COURT.  WHAT THE COMMISSION SAID
IN EX PARTE NO. 162 CORROBORATES ITS FINDING IN THE PRESENT CASE
CONCERNING THE GREATER RELATIVE REVENUE NEEDS OF THE ROADS IN OFFICIAL
TERRITORY: 

"ON THE BASIS OF THE INTERIM RATES IN EFFECT SINCE JULY 1, 1946, THE
RATE OF RETURN FOR THE EASTERN DISTRICT WILL BE CONSIDERABLY LESS FOR
1946 THAN IN THE POCAHONTAS REGION, THE SOUTHERN REGION, OR THE WESTERN
DISTRICT, EVEN THOUGH AN ADDITIONAL INCREASE OF 5 PERCENT IN CERTAIN
RATES IN OFFICIAL TERRITORY WAS AUTHORIZED AND HAS BEEN IN EFFECT SINCE
JULY 1, 1946.  IT ALSO APPEARS THAT EVEN ON THE BASIS OF THE INCREASES
SOUGHT IN EX PARTE NO. 162 AND THE RAILROADS' ESTIMATES OF REVENUE, THE
RATE OF RETURN IN THE EASTERN DISTRICT FOR 1946 WILL BE LESS THAN THE
RATE OF RETURN IN THE POCAHONTAS REGION, THE SOUTHERN REGION, OR THE
WESTERN DISTRICT."  266 I.C.C. 548. 

THE LATTER ESTIMATES OF THE RATE OF RETURN IN PER CENT ARE AS
FOLLOWS: 

EASTERN DISTRICT..................  2.06 

POCAHONTAS REGION.................  6.26 

SOUTHERN REGION...................  4.01 

WESTERN DISTRICT..................  3.31 

FN37  EX PARTE NO. 162, INTERIM REPORT 264 I.C.C. 695, FINAL REPORT
DECEMBER 5, 1946, 266 I.C.C. 537.  THIS INCREASED MOST BASIC FREIGHT
RATES BY 15 TO 25 PER CENT.  RATES ON ARTICLES UNDER THE GENERAL
COMMODITY GROUPING OF MANUFACTURES AND MISCELLANEOUS, CLASS RATES AND
RATES ON LESS-THAN-CARLOAD AND ANY-QUANTITY TRAFFIC WERE INCREASED 25
PER CENT IN OFFICIAL TERRITORY, 20 PER CENT WITHIN AND BETWEEN OTHER
TERRITORIES, AND 22.5 PER CENT BETWEEN OFFICIAL TERRITORY AND POINTS IN
OTHER TERRITORIES.  EXPRESS RATES WERE INCREASED OCTOBER 28, 1946.  EX
PARTE NO. 163, 266 I.C.C. 369. 

FN38  SEE NOTE 37, SUPRA. 

FN39  THAT THE ORDER GRANTING THE GENERAL FREIGHT RATE INCREASE DID
NOT AFFECT THE ORDERS IN THE PRESENT PROCEEDING IS MADE CLEAR BY THE
FOLLOWING PROVISION: 

"THAT OUTSTANDING UNEXPIRED ORDERS IN OTHER PROCEEDINGS ARE HEREBY
MODIFIED SO AS TO PERMIT THE INCREASES IN FREIGHT RATES AND CHARGES
HEREIN AUTHORIZED TO BE ESTABLISHED; PROVIDED, HOWEVER, THAT THE
PROVISIONS OF THIS PARAGRAPH SHALL NOT BE CONSTRUED TO SUSPEND OR
SUPERSEDE OR MODIFY OR AFFECT THE FINDINGS AND ORDER ENTERED IN CLASS
RATE INVESTIGATION, 1939, DOCKET NO. 28300, THE OPERATION OF WHICH IS
STAYED BY COURT ORDER  ...  " 

SEE EX PARTE NO. 162, SUPRA, NOTE 37. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

IN A CASE INVOLVING ISSUES MUCH NARROWER THAN THOSE NOW HERE, THE
COURT, ONLY THE OTHER DAY, STRUCK DOWN AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION FOR WANT OF ADEQUATE FINDINGS.  INTERSTATE COMMERCE
COMMISSION V. MECHLING, 330 U.S. 567, AT 583.  ALTHOUGH IN THAT CASE
THERE WERE EXPLICIT FINDINGS, THE COURT DEEMED THEM INADEQUATE BECAUSE
THEY WERE BASED ON "UNSIFTED AVERAGES."  IN A SERIES OF CASES THE COURT
HAS SET ASIDE ORDERS OF THE INTERSTATE COMMERCE COMMISSION BECAUSE OF
THE FAILURE OF THE COMMISSION TO ASCERTAIN AND TO FORMULATE WITH
CLARITY AND DEFINITENESS THE TRANSPORTATION AND ECONOMIC CIRCUMSTANCES
WHICH ALONE COULD JUSTIFY THE ORDER, AND THEREBY AFFORD THIS COURT
ASSURED BASIS FOR CONCLUDING THAT THE COMMISSION HAD DULY EXERCISED ITS
ALLOWABLE JUDGMENT ON THE FACTORS UNDERLYING THE ULTIMATE ISSUES.  SEE
FLORIDA V. UNITED STATES, 282 U.S. 194; UNITED STATES V. BALTIMORE &
OHIO R. CO., 293 U.S. 454; ATCHISON, TOPEKA & SANTA FE R. CO. V. UNITED
STATES, 295 U.S. 193; UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP.,
315 U.S. 475; CITY OF YONKERS V. UNITED STATES, 320 U.S. 685; EASTERN
CENTRAL MOTOR CARRIERS ASSOCIATION V. UNITED STATES, 321 U.S. 194;
NORTH CAROLINA V. UNITED STATES, 325 U.S. 507; ALABAMA V. UNITED
STATES, 325 U.S. 535.  NOT ONE OF THESE CASES INVOLVED AN ORDER HAVING
A REACH COMPARABLE TO THE REACH OF THE ORDER NOW BEFORE US.  WE ARE
ASKED TO SUSTAIN AN ORDER THAT READJUSTS THE CLASS RATES OF THE WHOLE
COUNTRY BARRING ONLY THE TERRITORY WEST OF THE ROCKIES - AN ORDER THAT
CHANGES NOT ONLY THE RATES WITHIN THE VARIOUS RATE TERRITORIES IN THIS
VAST REGION, BUT CHANGES THE RELATION OF THE RATES INTER
TERRITORIALLY.  I AM NOT UNMINDFUL OF THE COMPLICATED NATURE OF THE
PROBLEM WHICH CONFRONTED THE COMMISSION, OF THE EMPIRIC CHARACTER OF
THE PROCESS OF RATE-MAKING, OF THE LIMITED SCOPE FOR JUDICIAL REVIEW IN
THIS PROCESS, OF THE RESPECT TO BE ACCORDED TO THE COMMISSION'S
CONCLUSIONS.  BOARD OF TRADE V. UNITED STATES, 314 U.S. 534.  BUT WHEN
THE OUTCOME OF LEGAL ISSUES IS BOUND TO CUT DEEPLY INTO ECONOMIC
RELATIONS ON SUCH A SCALE, IT IS NOT ASKING TOO MUCH TO ASK THE
COMMISSION TO BE EXPLICIT AND DEFINITE IN ITS FINDINGS ON THE ELEMENTS
THAT ARE INDISPENSABLE TO THE VALIDITY OF ITS ORDER. 

WHEN INTER-TERRITORIAL DISCRIMINATION IS COMPLAINED OF, AT LEAST TWO
BASIC ISSUES CONFRONT THE COMMISSION:  (1) IS THERE DISCRIMINATION? 
(2) IF THERE IS, HOW IS THE DISCRIMINATION TO BE ABATED?  THE
COMMISSION CANNOT ELIMINATE DISCRIMINATION - I.E., HARMONIZE THE RATE
RELATIONS BETWEEN TERRITORIES - IN DISREGARD OF THE REASONABLENESS OF
THE READJUSTED RATES WITHIN EACH TERRITORY.  THE INTERSTATE COMMERCE
ACT MUST BE APPLIED IN ITS ENTIRETY AND THE DIFFERENT SECTIONS WHICH
MAKE AN ARTICULATED WHOLE CANNOT BE TREATED DISJOINTEDLY.  SUCH IS THE
TEACHING OF OUR CASES, ESPECIALLY OF TEXAS & PACIFIC R. CO. V. ABILENE
COTTON OIL CO., 204 U.S. 426, AND INTERMOUNTAIN RATE CASES, 234 U.S.
476 - THE TWO CASES WHICH BEYOND ALL OTHERS GIVE THE CONTROLLING
CONSIDERATIONS IN CONSTRUING THE INTERSTATE COMMERCE ACT. 

AND SO THE COMMISSION IS NOT EMPOWERED TO REMOVE DISCRIMINATION
BETWEEN TWO TERRITORIES WITHOUT AT THE SAME TIME CONSIDERING WHETHER
THE REMEDIES PROPOSED FOR SUCH REMOVAL FIT THE REQUIREMENT OF
REASONABLENESS OF RATES.  IT MAY NOT LOWER THE RATES IN A TERRITORY
BEYOND THE LEVEL WHICH GIVES THE CARRIERS AN INCOME SUFFICIENT TO
ENABLE THEM TO OPERATE EFFECTIVELY AS PART OF THE NATION'S
TRANSPORTATION SYSTEM.  AND THE COMMISSION MAY NOT RAISE RATES TO A
LEVEL WHICH WOULD EXACT FREIGHT CHARGES FROM SHIPPERS BEYOND A RATE
STRUCTURE THAT IS REASONABLE.  THE SMALL PROPORTION OF FREIGHT THAT
MOVES ON CLASS RATES IS NO MEASURE OF THE IMPORTANCE OF THOSE RATES TO
THE TOTAL EARNINGS OF CARRIERS.  UNREASONABLE RATES - WHETHER
UNREASONABLY HIGH OR UNREASONABLY LOW - EVEN ON A FRACTION OF THE
FREIGHT, MAY MAKE THE DIFFERENCE BETWEEN EARNINGS TO WHICH CARRIERS ARE
ENTITLED UNDER THE INTERSTATE COMMERCE ACT AND THOSE TO WHICH THEY ARE
NOT ENTITLED FOR DISCHARGING THEIR DUTY AS PART OF THE NATIONAL
TRANSPORTATION SYSTEM.  WE ARE WITHOUT INFORMING FINDINGS ON THESE
ISSUES.  BUT EVEN IF ONE WERE TO CONSIDER QUESTIONS OF DISCRIMINATION
IN ISOLATION, INEQUALITY - THE ESSENCE OF DISCRIMINATION - CANNOT BE
DEALT WITH MECHANICALLY BY TAKING A PERCENTAGE OFF ONE TERRITORY AND
ADDING IT TO ANOTHER.  THE PROCRUSTEAN BED IS NOT A SYMBOL OF
EQUALITY.  IT IS NO LESS INEQUALITY TO HAVE EQUALITY AMONG UNEQUALS. 
THE FINDINGS DO NOT REVEAL HOW IT HAPPENED THAT PUTTING 10% ON AND
TAKING 10% OFF RESPECTIVELY WILL BEGET JUST THE RIGHT ADJUSTMENT.  I AM
NOT SUGGESTING THAT ONE MIGHT NOT DIG OUT OF THE RECORD INEXPLICIT,
ARGUMENTATIVE SUPPORT FOR THE VIEW THAT AN INCREASE OF 10% IN OFFICIAL
CLASSIFICATION TERRITORY RATES WILL STILL LEAVE THE LEVEL OF RATES
WITHIN THAT TERRITORY NOT UNREASONABLE, AND THAT A DECREASE OF 10% IN
WESTERN TERRITORY WILL LEAVE THE CARRIERS THE REQUIRED REASONABLENESS
OF RATES WITHIN THAT TERRITORY.  BUT IT IS NOT CONDUCIVE TO A FAIR
ADMINISTRATION OF THE INTERSTATE COMMERCE ACT, NOR IS IT CONSONANT WITH
THE PROPER DISCHARGE OF THIS COURT'S TASK, TO REQUIRE US TO DIG OUT
INDICATIONS OR EVIDENCE GIVING APPROPRIATE ANSWER TO THESE ISSUES FROM
A RECORD CONSISTING OF NEARLY 13,000 PAGES SPREAD OVER 21 VOLUMES,
WHICH LED TO A REPORT BY THE COMMISSION OF 320 PAGES. 

THE DISTRICT COURT ACKNOWLEDGED THE ABSENCE OF FINDING ON SUCH
ISSUES.  SAID THE COURT:  "IT HAS BEEN ARGUED THAT THERE CAN BE NO
INCREASE IN CLASS RATES IN OFFICIAL TERRITORY UNLESS THERE IS FIRST A
SO-CALLED PRIMARY FINDING, SUPPORTED BY SUBSTANTIAL EVIDENCE THAT THE
PRESENT RATES ARE NOT COMPENSATORY.  WHILE THAT FACT, IF PROVED, WOULD
HAVE BEEN OF MUCH SIGNIFICANCE THE FAILURE TO PROVE IT AND THE
CONSEQUENT LACK OF A FINDING THAT PRESENT RATES ARE CONFISCATORY DOES
NOT LEAVE THE COMMISSION'S FINDING THAT THE RATES ARE UNLAWFUL
UNSUPPORTED BY SUBSTANTIAL EVIDENCE."  65 F.SUPP.  856, 873.  BUT THE
FACT THAT THE RATES IN OFFICIAL TERRITORY MAY, AS A MATTER OF ABSTRACT
COMPARISON, BE OUT OF LINE WITH THE RATES IN WESTERN OR SOUTHERN
TERRITORY IS HARDLY PROOF THAT THE RATES IN OFFICIAL TERRITORY SHOULD
BE INCREASED BY THE SAME FLAT PERCENTAGE AS THE RATES IN THE OTHER
TERRITORIES SHOULD BE DECREASED.  SUCH A FLAT INCREASE IN OFFICIAL
TERRITORY MAY MAKE THE PROPOSED NEW RATES UNLAWFUL BECAUSE
UNREASONABLE.  WHILE A 10% DECREASE IN RATES IN WESTERN TERRITORY MAY
ELIMINATE UNFAIRNESS TO SHIPPERS IN THAT TERRITORY, IT DOES NOT FOLLOW
THAT A CORRESPONDING 10% INCREASE IN OFFICIAL TERRITORY RATES WILL NOT
RESULT IN UNFAIRNESS TO SHIPPERS THERE. 

ONE CAN HARDLY READ THE CONCURRING AND DISSENTING VIEWS TO THE
COMMISSION'S REPORT WITHOUT BEING LEFT WITH UNCERTAINTY REGARDING THE
BASIS OF THE COMMISSION'S ORDER. 

"THE REPORT DOES NOT SHOW, EXCEPT IN NEBULOUS FASHION, THAT THE COST
FIGURES REPRESENT APPORTIONMENT OF TOTALS, BASED ON ESTIMATES; THAT
THEY INVOLVE MANY ASSUMPTIONS AND ACTS OF JUDGMENT; AND ARE NOT
COMPUTATIONS FROM DIRECT, ORIGINAL COST FIGURES FOR PARTICULAR
MOVEMENTS.  THESE, HOWEVER, ARE THE FACTS.  IT OMITS EVIDENCE SHOWING
THAT 59 OUT OF 117 ITEMS OF BASIC DATA USED IN THE STUDIES WERE
ESTIMATED, AND THAT 458 OUT OF 500 SEQUENCES WERE WHOLLY OR PARTLY
ESTIMATED.  IT FAILS TO DISCLOSE CLEARLY THAT WHEN MAKING THE STUDIES
IT WAS ASSUMED THAT THE CONSIST OF THE TRAFFIC IS THE SAME IN THE
DIFFERENT TERRITORIES, WHEN THE FACT IS, AS I HAVE POINTED OUT, THAT
THE TRAFFIC CONSIST DIFFERS WIDELY IN THE RESPECTIVE TERRITORIES.  THE
RESULT IS THAT THEORETICAL COSTS ARE PRODUCED, BASED UPON ASSUMPTIONS
WHICH ARE NOT FACTS, AND UPON COMPARISONS OF UNLIKE THINGS." 
(COMMISSIONER PORTER, DISSENTING, 262 I.C.C. 447, 709, 717; AND SEE
DISSENTING VIEWS OF COMMISSIONER BARNARD, ID. AT 725.) 

ACCORDING TO TWO OF THE COMMISSIONERS THE RECORD IS WHOLLY INADEQUATE
TO SUPPORT A FINDING THAT CLASS RATES WITHIN OFFICIAL TERRITORY ARE
UNREASONABLE UNDER SEC. 1 OF THE ACT.  SEE 264 I.C.C. 69-70.  CERTAINLY
THE COMMISSION DID NOT MAKE AN EXPLICIT FINDING THAT THEY ARE
UNREASONABLE.  IF THERE IS ANY SUCH FINDING, IT MUST BE SOUGHT FOR AS
WOULD A NEEDLE IN A HAYSTACK.  THE COMMISSION'S ORDER OUGHT NOT TO BE
ALLOWED TO REST ON SUCH DUBIOUS FOUNDATIONS. 

NOR CAN SUCH A MECHANICAL OR ABSTRACTLY MATHEMATICAL READJUSTMENT OF
RATES INTER-TERRITORIALLY BE JUSTIFIED AS A TENTATIVE ADJUSTMENT.  OF
COURSE, THE COMMISSION MAY GENERALIZE A SUFFICIENT NUMBER OF TYPICAL
INSTANCES AND MAKE A FLAT READJUSTMENT WITHIN A TERRITORY, LEAVING
INSTANCES OF UNREASONABLENESS TO BE TAKEN OUT OF SUCH AN ORDER UPON
INDIVIDUAL APPLICATION.  THIS IS WHAT THE COMMISSION DID, AND WHAT THIS
COURT SUSTAINED, IN THE NEW ENGLAND DIVISIONS CASE, 261 U.S. 184.  THE
ORDER IN THAT CASE, DIRECTING A 15% INCREASE IN THE SHARE OF THE NEW
ENGLAND RAILROADS IN THE JOINT THROUGH-FREIGHT RATES, WAS BASED UPON
EVIDENCE "WHICH THE COMMISSION ASSUMED WAS TYPICAL IN CHARACTER, AND
AMPLE IN QUANTITY, TO JUSTIFY THE FINDING MADE IN RESPECT TO EACH
DIVISION OF EACH RATE OF EVERY CARRIER."  261 U.S. AT 196-97.  THE
COURT FOUND THAT THE ESTABLISHED PRACTICE IN RATE LITIGATION, THE
NATURE OF THE HEARING BEFORE THE COMMISSION, THE EVIDENCE SUBMITTED,
THE FINDINGS MADE, THE OPPORTUNITIES TO APPLY FOR MODIFICATIONS IN
TYPICAL SITUATIONS, AMPLY SUPPORTED THE COMMISSION'S FINDINGS.  THE
PRESENT RECORD, AS REFLECTED IN THE COMMISSION'S REPORT, DOES NOT
PRESENT A COMPARABLE SITUATION.  ONE GETS THE IMPRESSION THAT THE
ADJUSTMENT OF A FLAT 10% DECREASE IN THE RATES OUTSIDE THE OFFICIAL
TERRITORY AND A FLAT INCREASE OF 10% WITHIN THAT TERRITORY IS
ATTRIBUTABLE, FUNDAMENTALLY, TO A LAUDABLE DESIRE ON THE PART OF THE
COMMISSION TO SECURE UNIFORM CLASSIFICATION THROUGHOUT THE COUNTRY. 
THE COMMISSION WAS NOT PREPARED TO MAKE SUCH A CLASSIFICATION, BUT IT
MADE THESE RATE CHANGES IN THE HOPE THAT THEY WOULD EXERT PRESSURE ON
THE CARRIERS TO AGREE UPON A UNIFORM CLASSIFICATION.  IT IS IN RELATION
TO THAT HOPE THAT IT IS URGED THAT THE ORDER IS MERELY A CONDITIONAL OR
TENTATIVE ORDER - CONDITIONED UPON AGREEMENT BY THE CARRIERS UPON A
UNIFORM CLASSIFICATION.  BUT TO CONDITION THE ORDER ON THE REALIZATION
OF THAT HOPE IS TO CONDITION IT, IF EXPERIENCE BE ANY GUIDE, ON THE
GREEK KALENDS. 

WHAT THIS COURT SAID IN UNITED STATES V. CHICAGO, MILWAUKEE, ST. PAUL
& PACIFIC R. CO., 294 U.S. 499, 510-11, INVOLVING A RATE ADJUSTMENT
WITHIN A VERY LIMITED TERRITORY, WITH NO SUCH FAR-REACHING CONSEQUENCES
AS THE ORDER NOW UNDER REVIEW, HAS ENHANCED APPLICABILITY TO THE
PRESENT ORDER OF THE COMMISSION.  "WE WOULD NOT BE UNDERSTOOD AS SAYING
THAT THERE DO NOT LURK IN THIS REPORT PHRASES OR SENTENCES SUGGESTIVE
OF A DIFFERENT MEANING.  ONE GAINS AT PLACES THE IMPRESSION THAT THE
COMMISSION LOOKED UPON THE PROPOSED REDUCTION (INITIATED BY A CARRIER)
AS SOMETHING MORE THAN A DISRUPTIVE TENDENCY  ...  THE DIFFICULTY IS
THAT IT HAS NOT SAID SO WITH THE SIMPLICITY AND CLEARNESS THROUGH WHICH
A HALTING IMPRESSION RIPENS INTO REASONABLE CERTITUDE.  IN THE END WE
ARE LEFT TO SPELL OUT, TO ARGUE, TO CHOOSE BETWEEN CONFLICTING
INFERENCES.  SOMETHING MORE PRECISE IS REQUISITE IN THE QUASI
JURISDICTIONAL FINDINGS OF AN ADMINISTRATIVE AGENCY.  BEAUMONT, S.L. &
W. RY. CO. V. UNITED STATES, 282 U.S. 74, 86; FLORIDA V. UNITED STATES,
282 U.S. 194, 215.  WE MUST KNOW WHAT A DECISION MEANS BEFORE THE DUTY
BECOMES OURS TO SAY WHETHER IT IS RIGHT OR WRONG." 

ADMINISTRATIVE EXPERTS NO DOUBT HAVE ANTENNAE NOT POSSESSED BY COURTS
CHARGED WITH REVIEWING THEIR ACTION.  AND SO IT MAY WELL BE THAT TO THE
EXPERT FEEL THE JUSTIFIABLE CORRECTION OF AN IMBALANCE BETWEEN OFFICIAL
TERRITORY RATES AND THE RATES OF OTHER TERRITORIES IS A SHIFT OF 10% IN
THE RESPECTIVE RATES - OFFICIAL TERRITORY RATES INCREASED 10% AND RATES
ELSEWHERE DECREASED 10%. BUT COURTS, CHARGED AS THEY ARE WITH THE
REVIEW OF THE ACTION OF THE COMMISSION, OUGHT NOT TO BE ASKED TO
SUSTAIN SUCH A MATHEMATICAL COINCIDENCE AS A MATTER OF UNILLUMINED
FAITH IN THE CONCLUSION OF THE EXPERTS. 

I WOULD REVERSE THE DECREE AND ORDER THE PROCEEDINGS RETURNED TO THE
INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE JACKSON, DISSENTING. 

I FIND IT IMPOSSIBLE TO AGREE WITH THIS EXTRAORDINARY DECISION.  I
WILL DISCUSS BUT ONE OF ITS PHASES - THAT WHICH IS TREATED IN
SUBDIVISION EIGHTH OF THE COURT'S OPINION.  THIS HOLDS THAT THE
INTERSTATE COMMERCE COMMISSION HAS, AND RIGHTFULLY HAS EXERCISED, THE
POWER TO ADD 10% TO CERTAIN BASIC FREIGHT RATES AFFECTING THE
NORTHEASTERN PART OF THE UNITED STATES.  THIS INCREASE WAS NOT ASKED BY
THE RAILROADS, GOES TO THE PROSPEROUS AND THE INSOLVENT ONES ALIKE, AND
IS NOT EVEN CLAIMED TO BE NECESSARY TO PAY THE COST OF SERVICE AND A
FAIR RETURN ON THE PROPERTY USED IN RENDERING IT.  THIS ADDITIONAL
ASSESSMENT IS IN NO SENSE COMPENSATION FOR HANDLING THE TRAFFIC WHICH
THE RAILROADS CONCEDE WAS ADEQUATELY COMPENSATED BEFORE.  IT IS REALLY
A SURTAX, SEE BRANDEIS, J., IN NEW ENGLAND DIVISIONS CASE, 261 U.S.
184, 196, ADDED SOLELY TO INCREASE SHIPPING COSTS IN THE NORTHEASTERN
PART OF THE UNITED STATES FOR THE PURPOSE OF HANDICAPPING ITS ECONOMY
AND IN ORDER TO MAKE TRANSPORTATION COST AS MUCH THERE AS IT DOES IN
AREAS WHERE THERE IS LESS TRAFFIC TO DIVIDE THE COST.  THE SURCHARGE
BURDENS THE TERRITORY WHERE FIFTY PERCENT OF THE CONSUMING POPULATION
OF THE UNITED STATES RESIDES BY ADDING AN ESTIMATED $15,000,000 PER
YEAR TO ITS SHIPPING BILLS.  IT ADDS THAT MUCH TO THE REVENUES OF THE
NORTHEASTERN RAILROADS WITH NO SHOWING OR FINDING THAT IT IS NEEDED TO
MEET COSTS OF FURNISHING RAILROAD SERVICE. 

THE MOST IMPORTANT REASON ADVANCED FOR SUSTAINING THIS ORDER IS THE
CLAIM THAT THIS SURCHARGE IS TO CURE A DISCRIMINATION IN FAVOR OF THE
NORTHEASTERN TERRITORY AGAINST THE SOUTH AND WEST.  BRIEFLY AND
GENERALLY, THE DISCRIMINATION IS SAID TO CONSIST IN THIS:  MILE FOR
MILE, A HIGHER AVERAGE CHARGE IS MADE FOR TRANSPORTATION UNDER THE
PRESENT CLASSIFICATIONS IN THE MORE SPARSELY SETTLED AREAS OF THE SOUTH
AND WEST THAN IS MADE IN THE DENSER TRAFFIC REGIONS OF THE NORTHEAST. 
WHY, THEN, SHOULD NOT THE ALLEGED DISCRIMINATION BE REMOVED BY LOWERING
THE HIGH RATES OF THE SOUTH AND WEST?  THE ANSWER IS THAT THEY CANNOT
BE REDUCED FURTHER THAN THE TEN PERCENT ALREADY ORDERED IN THIS
PROCEEDING, BECAUSE THE RAILROADS OF THE SOUTH AND WEST, IN VIEW OF
THEIR COSTS, COULD NOT BEAR FURTHER DECREASE.  SO THE ONLY OTHER WAY OF
EQUALIZING THE RATES AND MAKING IT AS COSTLY TO MOVE GOODS THERE AS
ANYWHERE IN THE UNITED STATES, IS TO MAKE THE SHIPPERS IN THE
NORTHEASTERN TERRITORY PAY THE RAILROADS THIS ADDITIONAL 10% WHICH THEY
HAVE NOT ASKED AND DO NOT NEED. 

THE COURT'S APPROVAL OF THIS ORDER IS BASED ON AN ENTIRELY NEW THEORY
OF "DISCRIMINATION."  IT HAS NEVER BEFORE BEEN THOUGHT TO BE AN
UNLAWFUL DISCRIMINATION TO CHARGE MORE FOR A SERVICE WHICH IT COST MORE
TO RENDER.  DISCRIMINATION HERETOFORE HAS BEEN FOUND TO EXIST ONLY WHEN
AN UNEQUAL CHARGE WAS EXACTED FOR A LIKE SERVICE, OR VICE VERSA.  BUT
NOW IT IS HELD TO BE AN UNLAWFUL DISCRIMINATION IF RAILROADS OF THE
NORTHEAST DO NOT MAKE THE SAME CHARGE AS OTHER RAILROADS IN THE SOUTH
OR WEST, FOR A DIFFERENT TRANSPORTATION UNDER DIFFERENT COST
CONDITIONS.  THE GOVERNMENT FRANKLY ADVOCATES THIS NEW CONCEPT OF
DISCRIMINATION AS NECESSARY TO SOME REDISTRIBUTION OF POPULATION IN
RELATION TO RESOURCES THAT WILL RESHAPE THE NATION'S SOCIAL, ECONOMIC
AND PERHAPS ITS POLITICAL LIFE MORE NEARLY TO ITS HEART'S DESIRE.  IT
SAYS IN ITS BRIEF TO US: 

"THERE IS NO DIRECT RELATION BETWEEN THE DISTRIBUTION OF NATURAL
RESOURCES AND THE DISTRIBUTION OF POPULATION IN THE UNITED STATES.  IT
HAPPENS THAT SOME OF THE AREAS RICHEST IN NATURAL RESOURCES IN THE
UNITED STATES ARE SPARSELY POPULATED.  IF THE RAW MATERIALS MAKING UP
THOSE NATURAL RESOURCES ARE TO BE CONVERTED INTO FINISHED PRODUCTS IN
THAT VICINITY, ALLOWING THE AREA SOME ECONOMIC BENEFIT FROM THEIR
CONVERSION, IT WILL BE NECESSARY TO TRANSPORT CONSIDERABLE VOLUMES OF
FINISHED GOODS FOR LONG DISTANCES.  NECESSARILY MINERALS ARE OBTAINED
WHERE THE DEPOSITS OCCUR, AND AGRICULTURAL PRODUCTS MUST BE PRODUCED IN
AREAS OF SUITABLE SOIL AND CLIMATE.  IT IS THE TASK OF THE
TRANSPORTATION SYSTEM TO CARRY COMMODITIES FROM POINTS OF PRODUCTION TO
CONSUMING CENTERS THROUGHOUT THE UNITED STATES AND TO THE PORTS FOR
EXPORT.  THE MORE FREELY AND CHEAPLY THE PRODUCTS ARE CARRIED, THE MORE
COMPETITION THERE WILL BE, THE MORE PRODUCTION THERE WILL BE, AND THE
BETTER WILL OUR TRANSPORTATION SYSTEM SERVE OUR NATIONAL ECONOMY. 

THE MAINTENANCE OF A SOUND NATIONAL ECONOMY REQUIRES THE PROPER USE
OF NATURAL RESOURCES TO INSURE REASONABLE ECONOMIC OPPORTUNITY OF A
STABLE NATURE FOR THE PEOPLE IN EACH OF THE REGIONS OF THE COUNTRY.  AS
INDICATED, POPULATION DISTRIBUTION IS NOT IN ACCORD WITH THE
DISTRIBUTION OF NATURAL RESOURCES, AND IT WOULD REQUIRE MANY YEARS FOR
PEOPLE TO MOVE TO WHERE THESE RESOURCES ARE, ASSUMING IT POSSIBLE TO
INDUCE SUCH MILLIONS TO MIGRATE, OR THAT IT WOULD BE WISE POLICY TO DO
SO EVEN IF POSSIBLE.  THERE ARE ALSO AREAS OF ONE-CROP AGRICULTURE IN
WHICH THE PEOPLE FACE READJUSTMENTS TO RESTORE AND PROTECT THE LAND AND
TO OBTAIN ADDITIONAL SOURCES OF LIVELIHOOD. 

IN VIEW OF ALL THIS, ONE OF THE BASIC PRINCIPLES IN MAKING FREIGHT
RATES SHOULD BE THE ELIMINATION OF RATE BARRIERS AGAINST REGIONAL
DEVELOPMENT, NOT TO CHANGE OUR ECONOMY, BUT TO REMOVE DISCRIMINATORY
CONDITIONS WHICH UNFAIRLY AND UNLAWFULLY PREVENT THE POSSIBILITY OF
CHANGE." 

THE COURT'S ENTIRE DISCUSSION OF THE DISCRIMINATION FEATURE OF THIS
CASE IS AN ACCEPTANCE OF THE GOVERNMENT'S POSITION WITHOUT WHICH THE
LAST SUPPORT FOR THIS ORDER WOULD FAIL. 

NO AUTHORITY CAN BE FOUND IN ANY ACT OF CONGRESS FOR THE IMPOSITION
OF THIS SURCHARGE ON THE NORTHEAST SOLELY TO PENALIZE IT FOR BEING ABLE
TO TRANSPORT GOODS CHEAPER DUE TO ITS DENSITY OF POPULATION AND VOLUME
OF TRAFFIC.  THE POLICY OF CONGRESS REMAINS AS IT LONG HAS STOOD:
"ADEQUATE AND EFFICIENT RAILWAY TRANSPORTATION SERVICE AT THE LOWEST
COST CONSISTENT WITH THE FURNISHING OF SUCH SERVICE  ...  "  INTERSTATE
COMMERCE ACT, SEC. 15A (2), 48 STAT. 220, 54 STAT. 912, 49 U.S.C. SEC.
15A (2).  CONGRESS HAS NEVER INTIMATED, MUCH LESS DECLARED, A PURPOSE
TO DEPRIVE THE TERRITORY IN WHICH FIFTY PERCENT OF THE NATION'S
CONSUMERS RESIDE OF THE BENEFIT OF THIS POLICY.  THE RAMSPECK
RESOLUTION DID NO MORE THAN TO DIRECT THE COMMISSION'S ATTENTION TO
EARNEST COMPLAINTS THAT THE SOUTH AND WEST WERE BEING MISTREATED IN THE
MATTER OF RAIL RATES, AND VERY PROPERLY TO DIRECT THAT THEY DETERMINE
SUCH COMPLAINTS ON THEIR MERITS.  TRUE, IN 1940 THE PROVISION
PROHIBITING UNDUE PREJUDICE AND PREFERENCE WAS AMENDED BY THE ADDITION
OF "REGION, DISTRICT, TERRITORY," TO THE LIST OF PERSONS OR THINGS NOT
TO BE UNDULY PREJUDICED OR PREFERRED.  TRANSPORTATION ACT, 1940, SEC.
5(A), 54 STAT. 902, 49 U.S.C. SEC. 3(1).  BUT THE ACT ALREADY
PROHIBITED UNDUE PREJUDICE OR PREFERENCE TO ANY "LOCALITY" AND IT IS
CONCEDED THAT THE 1940 ACT MADE NO CHANGE IN THE SUBSTANTIVE LAW OF
DISCRIMINATION.  SENATOR WHEELER, CHAIRMAN OF THE INTERSTATE COMMERCE
COMMITTEE OF THE SENATE, SHOWED CLEARLY THAT WHILE IT WOULD "MAKE
TOWARD THE EQUALIZATION OF RATES," 84 CONG. REC. 6072, IT WAS NOT
INTENDED TO ACCOMPLISH WHAT IS HERE ATTEMPTED.  THE FOLLOWING COLLOQUY
OCCURRED: 

"MR. FRAZIER.  IS IT THE EXPECTATION OF THE COMMITTEE THAT BY THE
AMENDMENT IN SECTION 52(NOW SECTION 5(B) OF THE ACT) THE RATES IN THE
VARIOUS CLASSIFICATION TERRITORIES WILL BE EQUALIZED OR MADE THE SAME
IN DIFFERENT TERRITORIES? 

"MR. WHEELER.  I DO NOT THINK THAT IS POSSIBLE. 

"MR. FRAZIER.  I DO NOT SEE HOW IT IS POSSIBLE.  I WAS WONDERING WHAT
THE INTENTION WAS. 

"MR. WHEELER.  IT IS NOT POSSIBLE FOR A NUMBER OF REASONS.  FOR
EXAMPLE, IT COSTS MORE TO CARRY FREIGHT OVER THE MOUNTAINS IN TWO
TRAINS THAN TO CARRY IT ON THE PLAINS IN ONE TRAIN.  LIKEWISE, WE MUST
RECOGNIZE THE FACT THAT RAILROAD TRANSPORTATION SERVICE AND RATES
DEPEND SOMEWHAT ON THE INTENSITY OF THE TRAFFIC.  IN LONG STRETCHES OF
TERRITORY WITH NO TRAFFIC, SHIPPERS MUST PAY MORE FOR RAILROAD SERVICE
THAN DO SHIPPERS IN A DENSELY SETTLED PART OF THE COUNTRY WHERE TRAFFIC
IS PLENTIFUL AND WHERE THERE IS MUCH COMPETITION FROM BUSSES, TRUCKS,
AND THINGS OF THAT KIND.  HOWEVER, IT SEEMS TO ME FROM MY STUDY OF THE
QUESTION THAT APPARENT INEQUALITIES OUGHT TO BE CORRECTED.  ... 

"MR. FRAZIER.  IN NORTH DAKOTA WE HAVE A LARGE VOLUME OF WHEAT TO
TRANSPORT IN THE FALL OF THE YEAR, AND BECAUSE WE HAVE THAT LARGE
VOLUME, AND BECAUSE OUR TERRITORY IS PRACTICALLY LEVEL, WE HAVE A
RATHER BENEFICIAL RATE ON WHEAT AS COMPARED WITH SOME OTHER
TERRITORIES.  OUR RAILROAD COMMISSION AND TRAFFIC EXPERTS ARE AFRAID
THAT THE PROVISION TO WHICH REFERENCE HAS BEEN MADE WILL TAKE THAT
SPECIAL RATE AWAY FROM US. 

"MR. WHEELER.  I BELIEVE THIS PROVISION WILL HELP THE PEOPLE OF THE
SENATOR'S STATE RATHER THAN HARM THEM IN MANY RESPECTS. 

"MR. FRAZIER.  WE HAVE A MUCH LOWER RATE THAN PREVAILS IN MANY OTHER
RAISING OUR RATES. 

"MR. WHEELER.  THE BILL DOES NOT MEAN THAT RATES ARE TO BE
EQUALIZED.  ...  THE PEOPLE OF THE SENATOR'S STATE MIGHT JUST AS WELL
DISABUSE THEIR MINDS OF THE FEAR THAT AS A RESULT OF THE BILL THEY WILL
LOSE ANY BENEFIT WHICH THEY NOW HAVE.  ...  "  (84 CONG. REC. 5890.) 

THE COURT NEVER BEFORE HAS CONFIDED TO ANY REGULATORY BODY THE
RESHAPING OF OUR NATIONAL ECONOMY.  IN TEXAS & PACIFIC R. CO. V. UNITED
STATES, 289 U.S. 627, THE FOLLOWING STATEMENT OF THE LAW WAS MADE:  "A
TARIFF PUBLISHED FOR THE PURPOSE OF DESTROYING A MARKET OR BUILDING UP
ONE, OF DIVERTING TRAFFIC FROM A PARTICULAR PLACE TO THE INJURY OF THAT
PLACE, OR IN AID OF SOME OTHER, IS UNLAWFUL; AND OBVIOUSLY, WHAT THE
CARRIER MAY NOT LAWFULLY DO, THE COMMISSION MAY NOT COMPEL."  289 U.S.
AT 637.  SEE ALSO SOUTHERN PACIFIC CO. V. I.C.C., 219 U.S. 433; I.C.C.
V. DIFFENBAUGH, 222 U.S. 42, 46; UNITED STATES V. ILLINOIS CENTRAL R.
CO., 263 U.S. 515, 524. 

THE INTERSTATE COMMERCE COMMISSION ALSO ACCEPTED THIS AS THE LAW.  IN
STOVES, RANGES, BOILERS, ETC., 182 I.C.C. 59, THE MAJORITY SAID, "IT IS
NOT WITHIN OUR POWER TO EQUALIZE NATURAL DISADVANTAGES OF LOCATIONS,"
182 I.C.C. AT 68, AND COMMISSIONER EASTMAN WAS EVEN MORE EXPLICIT,
SAYING, 182 I.C.C. AT 74: 

"HOWEVER, IT IS UNDENIABLE, I THINK, THAT IN THE PAST BOTH SOUTHERN
MANUFACTURERS AND SOUTHERN CARRIERS HAVE SHOWN A TENDENCY TO DEMAND
THAT THE RATES TO THE NORTH BE EQUALIZED IN LEVEL WITH THOSE WITHIN THE
NORTH, ON THE GROUND THAT SUCH EQUALIZATION IS COMMERCIALLY ESSENTIAL
TO THE SOUTHERN INDUSTRIES.  IT IS A SUFFICIENT ANSWER TO SAY THAT IT
IS NOT OUR PROVINCE TO EQUALIZE COMMERCIAL CONDITIONS.  HOWEVER, THE
EVIDENCE IN THIS CASE HAS SERVED A USEFUL PURPOSE IN MAKING IT QUITE
CLEAR THAT THE SOUTHERN MANUFACTURERS HAVE CERTAIN ADVANTAGES OVER
THEIR NORTHERN RIVALS, SO FAR AS OPERATING AND OVERHEAD COSTS ARE
CONCERNED, WHICH WOULD HAVE TO BE TAKEN INTO CONSIDERATION IF IT WERE
OUR DUTY TO EQUALIZE COMMERCIAL CONDITIONS THROUGH AN ADJUSTMENT OF
FREIGHT RATES." 

THE COURT SHROUDS THIS SIMPLE LEGAL ISSUE AS TO WHETHER THERE IS
POWER TO LEVY THIS SURTAX ON THE NORTHEAST, IN ELABORATE DISCUSSIONS OF
THE EVILS OF EXISTING FREIGHT CLASSIFICATIONS AND AFFIRMATIONS OF THE
COMMISSION'S POWER TO CORRECT THEM.  NEITHER OF THESE PROPOSITIONS HAVE
EVER BEEN IN DOUBT.  BUT WHAT IMPORTANCE CAN THE COMMISSION'S POWER
OVER CLASSIFICATIONS HAVE IN TESTING VALIDITY OF THIS ORDER?  TO
CORRECT CLASSIFICATION WAS THE ASSERTED OBJECT OF THIS PROCEEDING, BUT
THAT POWER HAS NOT BEEN EXERCISED AT ALL.  NOT ONE CLASSIFICATION IS
CHANGED.  INSTEAD, A FLAT BOOST IS MADE AGAINST TRAFFIC IN THE
NORTHEAST AND A FLAT REDUCTION FOR TRAFFIC IN THE SOUTH AND WEST IS
ORDERED, LEAVING EVERY INEQUALITY, DISCRIMINATION, INJUSTICE OR
ILLEGALITY IN CLASSIFICATIONS JUST WHERE THE COMMISSION FOUND THEM.  IF
THERE IS PROOF OF SPECIFIC DISCRIMINATION, INJUSTICE AND ILLEGALITIES
IN THIS CASE, WHY ARE THEY NOT NOW ORDERED CORRECTED?  IF THERE IS NOT
SUFFICIENT PROOF OF ANY SPECIFIC DISCRIMINATION, HOW CAN WE HOLD THAT
THERE IS A GENERAL DISCRIMINATION SO EXTENSIVE AS TO WARRANT THIS LEVY
ON THE NORTHEAST TO CORRECT THEM? 

PERHAPS THE MOST INCOMPREHENSIBLE OF THE COURT'S GROUNDS FOR
SUSTAINING THIS ORDER IS THAT WE DO NOT HAVE HERE A "REVENUE PROBLEM." 
IT IS ADMITTED THAT THE NORTHEASTERN RATES BEFORE INCREASE ARE NOT
PROVED NOR FOUND BY THE COMMISSION TO BE NONCOMPENSATORY TO THE
RAILROADS, OR OTHERWISE TO THREATEN HARMFUL EFFECTS UPON THE REVENUES
AND TRANSPORTATION EFFICIENCY OF THE CARRIERS WHO GET THE INCREASE.  IT
ALSO IS ADMITTED THAT THE ABSENCE OF SUCH PROOF AND FINDINGS MIGHT BE
FATAL TO THIS INCREASED RATE, FOR "IF THIS WERE A CASE OF DETERMINING
WHETHER EXISTING RATES PASSED BELOW THE LOWEST OR ABOVE THE HIGHEST
REACHES OF REASONABLENESS, THE POINT MIGHT BE WELL TAKEN."  CAN THE
LABEL AFFIXED TO A PROCEEDING MAKE LEGAL WHAT UNDER ANOTHER LABEL WOULD
BE INVALID?  BECAUSE THE PROCEEDING PROFESSES TO CORRECT
CLASSIFICATIONS, A PURPOSE NOW LONG AND INDEFINITELY DEFERRED, MAY IT
BE USED INCIDENTALLY TO RAISE THE RATES OF THE WHOLE NORTHEASTERN
TERRITORY WITHOUT ANY SHOWING OF NEED THEREFOR?  WHETHER WE CALL THE
CASE A "REVENUE CASE" OR SOMETHING ELSE, AND WHETHER WE DECLINE TO
DENOMINATE THE PROBLEM A "REVENUE PROBLEM" AND STYLE IT SOMETHING ELSE,
THE ORDER UNDER REVIEW IS A REVENUE ORDER AND NOTHING ELSE.  IT ADDS
10% TO THE REVENUES OF THE NORTHEASTERN ROADS FROM TRAFFIC MOVING UNDER
THE RATES IN QUESTION; IT KNOCKS 10% OFF FROM THE SOUTHERN AND WESTERN
TRAFFIC UNDER THEM.  IT EXACTS FOR THE RAILROADS ADDED REVENUES; IT
LAYS ON SHIPPERS THE BURDEN OF PROVIDING THOSE ADDED REVENUES.  THIS
ORDER ADMITTEDLY MIGHT BE INVALID IF THE INCREASED REVENUE WERE GIVEN
TO THE RAILROADS BECAUSE THEY HAD MADE A CLAIM TO NEED IT, AND HAD ONLY
THE PRESENT EVIDENCE AND FINDINGS TO SUPPORT AN ALLOWANCE OF THEIR
CLAIM.  SO THE CONCLUSION IS THAT THE ORDER IS VALID ONLY BECAUSE THE
RAILROADS HAVE NO REVENUE PROBLEM AND HAVE NOT MADE A CASE ENTITLING
THEM TO INCREASED REVENUE.  THAT IS ALL I CAN GET FROM THE ANSWER THAT
IT IS A VALID ORDER ONLY BECAUSE "WE DO NOT HAVE HERE SUCH A REVENUE
PROBLEM." 

I LONG HAVE HEARD THE COMPLAINT THAT FREIGHT RATES DISCRIMINATED
AGAINST THE SOUTH.  I HAVE BEEN INCLINED TO SUSPECT IT TO BE TRUE AND
HAVE HOPED TO SEE AN IMPARTIAL AND EXHAUSTIVE STUDY AND DECISION ON THE
SUBJECT.  BUT THIS CASE DOES NOT MEET THAT DESCRIPTION.  THE STUDENT OF
ECONOMICS WILL BE PUZZLED AT THE COURT'S CITATION OF THE FACT THAT THE
AVERAGE EMPLOYED PERSON IN THE SOUTH EARNS ONLY HALF AS MUCH AS THOSE
IN THE NORTHEAST AS BEING IN SOME WAY ATTRIBUTABLE TO THESE FREIGHT
RATES.  AND THE STUDENT OF THE JUDICIAL PROCESS WILL FIND INSTRUCTION
IN THE CONTRAST BETWEEN TODAY'S DECISION AND THAT OF INTERSTATE
COMMERCE COMMISSION V. MECHLING, 330 U.S. 567, IN ITS REGARD FOR
INHERENT ADVANTAGES, IN ITS ATTITUDE TO "UNSIFTED" AVERAGES AS A BASIS
FOR RAISING RATES AND IN ITS DEFERENCE TO THE ADMINISTRATIVE EXPERTISE
OF THE INTERSTATE COMMERCE COMMISSION. 

I AM NOT UNAWARE OF THE DIFFICULT POSITION IN WHICH THE INTERSTATE
COMMERCE COMMISSION FINDS ITSELF IN CASES OF THIS CHARACTER. 
COMMISSIONER EASTMAN GAVE VOICE TO IT IN DISSENT IN STATE OF ALABAMA V.
NEW YORK CENTRAL R. CO., 235 I.C.C. 255, 333, AS FOLLOWS: 

"THE COMMISSION IS CALLED UPON TO DECIDE THIS CASE, ON THE RECORD,
AFTER IT HAS IN EFFECT BEEN DECIDED, IN ADVANCE AND WITHOUT REGARD TO
THE RECORD, BY MANY MEN IN PUBLIC LIFE, OF HIGH AND LOW DEGREE, WHO
HAVE FREELY PROCLAIMED THEIR VIEWS ON WHAT THEY CONCEIVE TO BE THE
BASIC ISSUES.  THEIR THESIS HAS BEEN THAT THE SECTION OF OUR COUNTRY
GENERALLY KNOWN AS THE SOUTH IS OUR 'ECONOMIC PROBLEM NO. 1', BECAUSE,
AMONG OTHER THINGS, IT IS LOW IN INDUSTRIAL DEVELOPMENT, AND THAT A
MAJOR REASON FOR THIS CONDITION HAS BEEN AND IS AN UNFAIR ADJUSTMENT OF
FREIGHT RATES WHICH HAS FAVORED THE PRODUCERS OF THE NORTH AND BURDENED
THOSE OF THE SOUTH.  IT HAS BECOME A POLITICAL ISSUE.  WHILE, HOWEVER,
THE SOUTH GAVE BIRTH TO THE ISSUE, PUBLIC REPRESENTATIVES OF THE WEST
NOW CRY OUT AGAINST LIKE SUPPOSED OPPRESSION, AND PUBLIC
REPRESENTATIVES OF THE NORTH OR EAST, AS IT IS VARIOUSLY CALLED, HAVE
RISEN IN DEFENSE OF THEIR SECTION. 

"UNDER SUCH CONDITIONS, IT IS NOT EASY TO DECIDE THE CASE WITHOUT
BEING INFLUENCED BY EMOTIONAL REACTIONS, ONE WAY OR THE OTHER, WHICH
SHOULD PLAY NO PART IN THE DECISION." 

BUT BY ADMINISTRATIVE SUCCESSION AND JUDICIAL FIAT THE REGULATORY
POWER OF THE FEDERAL GOVERNMENT OVER COMMERCE IS NOW USED TO FORCE A
SURTAX ON TRANSPORTATION OF ONE SECTION OF THE COUNTRY ADMITTEDLY NOT
NEEDED TO COMPENSATE THE RAILROAD FOR THE CARRIAGE BUT TO TAKE AWAY
FROM ITS INHABITANTS ONE OF THE ADVANTAGES INHERENT IN ITS DENSITY OF
POPULATION, REGARDLESS OF THE DISADVANTAGES WHICH DENSITY OF POPULATION
ALSO CAUSES. 

THE OBSERVATION OF COMMISSIONER MAHAFFIE IN THIS CASE SEEMS TO ME
APPROPRIATE AND ACCURATE: 

"  ...  IN A COUNTRY SO VAST AS THIS WITH ITS WIDELY VARIED RESOURCES
AND DIFFERING TRANSPORTATION NEEDS IT SEEMS TO ME A MISTAKE TO TRY TO
COMPEL GENERAL EQUALITY IN RATES EXCEPT TO THE EXTENT EQUALITY IS
JUSTIFIED BY TRANSPORTATION CONDITIONS.  I THINK THE EFFORT TO DO SO
MUST NECESSARILY FAIL.  BUT I AM AFRAID THE PROCESS OF FINDING OUT
WHETHER IT CAN BE DONE WILL BE PAINFUL AND COSTLY.  THE PREJUDICE
FINDINGS ON WHICH THE NEW ADJUSTMENT IS LARGELY PREDICATED ARE
CALCULATED, IF CARRIED TO A LOGICAL CONCLUSION, TO LEAD TO A RIGID RATE
STRUCTURE BASED ON MILEAGE.  WHILE THIS MAY SEEM ON ITS FACE TO BE
EQUITABLE ITS ACCOMPLISHMENT WOULD ENTAIL RADICAL INDUSTRIAL AND
AGRICULTURAL READJUSTMENTS.  I DOUBT IF THE COUNTRY SHOULD BE REQUIRED
TO INCUR THE EXPENSE OF MAKING THEM."  (262 I.C.C. AT 708.) 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 
..END :




















HARRIS V. UNITED STATES, 331 U.S. 145 


NO. 34.  ARGUED DECEMBER 12, 13, 1946.  - DECIDED MAY 5, 1947.  - 151
F.2D 837, AFFIRMED. 


1.  UPON WARRANTS CHARGING VIOLATIONS OF THE MAIL FRAUD STATUTE AND
THE NATIONAL STOLEN PROPERTY ACT, FIVE FEDERAL AGENTS ARRESTED AN
ACCUSED IN THE LIVING ROOM OF AN APARTMENT WHICH WAS IN HIS EXCLUSIVE
POSSESSION.  WITHOUT A SEARCH WARRANT, THEY SEARCHED THE APARTMENT
(LIVING ROOM, BEDROOM, KITCHEN AND BATH) INTENSIVELY FOR FIVE HOURS,
FOR TWO CANCELED CHECKS AND ANY OTHER MEANS BY WHICH THE CRIMES CHARGED
MIGHT HAVE BEEN COMMITTED.  BENEATH SOME CLOTHES IN A BEDROOM BUREAU
DRAWER, THEY DISCOVERED A SEALED ENVELOPE MARKED "PERSONAL PAPERS" OF
THE ACCUSED.  THIS WAS TORN OPEN AND FOUND TO CONTAIN SEVERAL DRAFT
CARDS WHICH WERE PROPERTY OF THE UNITED STATES AND THE POSSESSION OF
WHICH WAS A FEDERAL OFFENSE.  UPON THE EVIDENCE THUS OBTAINED, THE
ACCUSED WAS CONVICTED OF VIOLATIONS OF THE SELECTIVE TRAINING & SERVICE
ACT OF 1940 AND SEC. 48 OF THE CRIMINAL CODE.  HELD:  THE EVIDENCE WAS
NOT OBTAINED IN VIOLATION OF THE PROVISION OF THE FOURTH AMENDMENT
AGAINST UNREASONABLE SEARCHES AND SEIZURES, NOR DID ITS USE VIOLATE THE
PRIVILEGE OF THE ACCUSED AGAINST SELF-INCRIMINATION UNDER THE FIFTH
AMENDMENT.  PP. 150-155. 

2.  A SEARCH INCIDENTAL TO AN ARREST MAY, UNDER APPROPRIATE
CIRCUMSTANCES, EXTEND BEYOND THE PERSON OF THE ONE ARRESTED TO THE
PREMISES UNDER HIS IMMEDIATE CONTROL.  P. 151. 

3.  A SEARCH INCIDENTAL TO AN ARREST, WHICH IS OTHERWISE REASONABLE,
IS NOT RENDERED INVALID BY THE FACT THAT THE PLACE SEARCHED IS A
DWELLING RATHER THAN A PLACE OF BUSINESS.  P. 151. 

4.  THE SEARCH IN THIS CASE WAS NOT RENDERED INVALID BY THE FACT THAT
IT EXTENDED BEYOND THE ROOM IN WHICH THE ACCUSED WAS ARRESTED.  P.
152. 

5.  THE SEARCH IN THIS CASE WAS NOT MORE INTENSIVE THAN WAS
REASONABLY DEMANDED BY THE CIRCUMSTANCES.  PP. 152-153. 

6.  THE OBJECTS SOUGHT AND THOSE ACTUALLY SEIZED IN THIS CASE WERE
PROPERLY SUBJECT TO SEIZURE.  P. 154. 

7.  IT IS OF NO SIGNIFICANCE IN THIS CASE THAT THE DRAFT CARDS WHICH
WERE SEIZED WERE UNRELATED TO THE CRIMES FOR WHICH THE ACCUSED WAS
ARRESTED.  P. 154. 

8.  SINCE POSSESSION OF THE DRAFT CARDS BY THE ACCUSED WAS A SERIOUS
AND CONTINUING OFFENSE AGAINST FEDERAL LAWS, UPON DISCOVERY OF THE
CARDS A CRIME WAS BEING COMMITTED IN THE VERY PRESENCE OF THE AGENTS
CONDUCTING THE SEARCH.  PP. 154-155. 

9.  IF ENTRY UPON THE PREMISES BE AUTHORIZED AND THE SEARCH WHICH
FOLLOWS BE VALID, THERE IS NOTHING IN THE FOURTH AMENDMENT WHICH
INHIBITS THE SEIZURE BY LAW-ENFORCEMENT AGENTS OF GOVERNMENT PROPERTY
THE POSSESSION OF WHICH IS A CRIME, EVEN THOUGH THE OFFICERS ARE NOT
AWARE THAT SUCH PROPERTY IS ON THE PREMISES WHEN THE SEARCH IS
INITIATED.  P. 155. 

10.  THAT ABUSES SOMETIMES OCCUR IS NO BASIS FOR GIVING SINISTER
COLORATION TO PROCEDURES WHICH ARE BASICALLY REASONABLE.  P. 155. 

HARRIS V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

PETITIONER WAS CONVICTED IN THE DISTRICT COURT FOR VIOLATION OF THE
SELECTIVE TRAINING & SERVICE ACT AND SEC. 48 OF THE CRIMINAL CODE.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  151 F.2D 837.  THIS COURT GRANTED
CERTIORARI.  328 U.S. 832.  AFFIRMED, P. 155. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED ON SIXTEEN COUNTS OF AN INDICTMENT N1
CHARGING THE UNLAWFUL POSSESSION, CONCEALMENT AND ALTERATION OF CERTAIN
NOTICE OF CLASSIFICATION CARDS AND REGISTRATION CERTIFICATES IN
VIOLATION OF SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940,
FN2  AND OF SEC. 48 OF THE CRIMINAL CODE.  FN3  PRIOR TO THE TRIAL,
PETITIONER MOVED TO SUPPRESS THE EVIDENCE, WHICH SERVED AS THE BASIS
FOR THE CONVICTION, ON THE GROUNDS THAT IT HAD BEEN OBTAINED BY MEANS
OF AN UNREASONABLE SEARCH AND SEIZURE CONTRARY TO THE PROVISIONS OF THE
FOURTH AMENDMENT  FN4  AND THAT TO PERMIT THE INTRODUCTION OF THAT
EVIDENCE WOULD BE TO VIOLATE THE SELF-INCRIMINATION CLAUSE OF THE FIFTH
AMENDMENT N5.  THE MOTION TO SUPPRESS WAS DENIED, AND PETITIONER'S
NUMEROUS OBJECTIONS TO THE EVIDENCE AT THE TRIAL WERE OVERRULED.  THE
CIRCUIT COURT OF APPEALS AFFIRMED THE CONVICTION.  151 F.2D 837. 
CERTIORARI WAS GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
PRESENTED. 

TWO VALID WARRANTS OF ARREST WERE ISSUED.  ONE CHARGED THAT
PETITIONER AND ONE MOFFETT HAD VIOLATED THE MAIL FRAUD STATUTE  FN6  BY
CAUSING A LETTER ADDRESSED TO THE GUARANTY TRUST COMPANY OF NEW YORK TO
BE PLACED IN THE MAILS FOR THE PURPOSE OF CASHING A FORGED CHECK FOR
$25,000.00 DRAWN ON THE MUDGE OIL COMPANY IN PURSUANCE OF A SCHEME TO
DEFRAUD.  THE SECOND WARRANT CHARGED THAT PETITIONER AND MOFFETT, WITH
INTENT TO DEFRAUD CERTAIN BANKS AND THE MUDGE OIL COMPANY, HAD CAUSED A
$25,000.00 FORGED CHECK TO BE TRANSPORTED IN INTERSTATE COMMERCE, IN
VIOLATION OF SEC. 3 OF THE NATIONAL STOLEN PROPERTY ACT.  FN7 

FIVE AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION, ACTING UNDER THE
AUTHORITY OF THE TWO WARRANTS, WENT TO THE APARTMENT OF PETITIONER IN
OKLAHOMA CITY AND THERE ARRESTED HIM.  THE APARTMENT CONSISTED OF A
LIVING ROOM, BEDROOM, BATHROOM AND KITCHEN.  FOLLOWING THE ARREST,
WHICH TOOK PLACE IN THE LIVING ROOM, PETITIONER WAS HANDCUFFED AND A
SEARCH OF THE ENTIRE APARTMENT WAS UNDERTAKEN.  THE AGENTS STATED THAT
THE OBJECT OF THE SEARCH WAS TO FIND TWO $10,000.00 CANCELED CHECKS OF
THE MUDGE OIL COMPANY WHICH HAD BEEN STOLEN FROM THAT COMPANY'S OFFICE
AND WHICH WERE THOUGHT TO HAVE BEEN USED IN EFFECTING THE FORGERY. 
THERE WAS EVIDENCE CONNECTING PETITIONER WITH THAT THEFT.  IN ADDITION,
THE SEARCH WAS SAID TO BE FOR THE PURPOSE OF LOCATING "ANY MEANS THAT
MIGHT HAVE BEEN USED TO COMMIT THESE TWO CRIMES, SUCH AS BURGLAR TOOLS,
PENS, OR ANYTHING THAT COULD BE USED IN A CONFIDENCE GAME OF THIS
TYPE."  FN8 

ONE AGENT WAS ASSIGNED TO EACH ROOM OF THE APARTMENT AND, OVER
PETITIONER'S PROTEST, A CAREFUL AND THOROUGH SEARCH PROCEEDED FOR
APPROXIMATELY FIVE HOURS.  AS THE SEARCH NEARED ITS END, ONE OF THE
AGENTS DISCOVERED IN A BEDROOM BUREAU DRAWER A SEALED ENVELOPE MARKED
"GEORGE HARRIS, PERSONAL PAPERS."  THE ENVELOPE WAS TORN OPEN AND ON
THE INSIDE A SMALLER ENVELOPE WAS FOUND CONTAINING EIGHT NOTICE OF
CLASSIFICATION CARDS AND ELEVEN REGISTRATION CERTIFICATES BEARING THE
STAMP OF LOCAL BOARD NO. 7 OF OKLAHOMA COUNTY.  IT WAS THIS EVIDENCE
UPON WHICH THE CONVICTION IN THE DISTRICT COURT WAS BASED AND AGAINST
WHICH THE MOTION TO SUPPRESS WAS DIRECTED.  IT IS CONCEDED THAT THE
EVIDENCE IS IN NO WAY RELATED TO THE CRIMES FOR WHICH PETITIONER WAS
INITIALLY ARRESTED AND THAT THE SEARCH WHICH LED TO ITS DISCOVERY WAS
NOT CONDUCTED UNDER THE AUTHORITY OF A SEARCH WARRANT.  FN9 

IN DENYING THE MOTION TO SUPPRESS, THE DISTRICT COURT WROTE NO
OPINION.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE CONVICTION, FINDING
THAT THE SEARCH WAS CARRIED ON IN GOOD FAITH BY THE FEDERAL AGENTS FOR
THE PURPOSES EXPRESSED, THAT IT WAS NOT A GENERAL EXPLORATORY SEARCH
FOR MERELY EVIDENTIARY MATERIALS, AND THAT THE SEARCH AND SEIZURE WERE
A REASONABLE INCIDENT TO PETITIONER'S ARREST.  FN10 

IF IT IS TRUE, AS PETITIONER CONTENDS, THAT THE DRAFT CARDS WERE
SEIZED IN VIOLATION OF PETITIONER'S RIGHTS UNDER THE FOURTH AMENDMENT,
THE CONVICTION BASED UPON EVIDENCE SO OBTAINED CANNOT BE SUSTAINED. 
BOYD V. UNITED STATES, 116 U.S. 616(1886); WEEKS V. UNITED STATES, 232
U.S. 383(1914); AGNELLO V. UNITED STATES, 269 U.S. 20(1925); SEGUROLA
V. UNITED STATES, 275 U.S. 106(1927).  THIS COURT HAS CONSISTENTLY
ASSERTED THAT THE RIGHTS OF PRIVACY AND PERSONAL SECURITY PROTECTED BY
THE FOURTH AMENDMENT "  ...  ARE TO BE REGARDED AS OF THE VERY ESSENCE
OF CONSTITUTIONAL LIBERTY; AND THAT THE GUARANTY OF THEM IS AS
IMPORTANT AND AS IMPERATIVE AS ARE THE GUARANTIES OF THE OTHER
FUNDAMENTAL RIGHTS OF THE INDIVIDUAL CITIZEN  ...  "  GOULED V. UNITED
STATES, 255 U.S. 298, 304(1921). 

THIS COURT HAS ALSO POINTED OUT THAT IT IS ONLY UNREASONABLE SEARCHES
AND SEIZURES WHICH COME WITHIN THE CONSTITUTIONAL INTERDICT.  THE TEST
OF REASONABLENESS CANNOT BE STATED IN RIGID AND ABSOLUTE TERMS.  "EACH
CASE IS TO BE DECIDED ON ITS OWN FACTS AND CIRCUMSTANCES."  GO-BART
IMPORTING COMPANY V. UNITED STATES, 282 U.S. 344, 357(1931). 

THE FOURTH AMENDMENT HAS NEVER BEEN HELD TO REQUIRE THAT EVERY VALID
SEARCH AND SEIZURE BE EFFECTED UNDER THE AUTHORITY OF A SEARCH
WARRANT.  SEARCH AND SEIZURE INCIDENT TO LAWFUL ARREST IS A PRACTICE OF
ANCIENT ORIGIN  FN11  AND HAS LONG BEEN AN INTEGRAL PART OF THE LAW
ENFORCEMENT PROCEDURES OF THE UNITED STATES  FN12  AND OF THE
INDIVIDUAL STATES.  FN13 

THE OPINIONS OF THIS COURT HAVE CLEARLY RECOGNIZED THAT THE SEARCH
INCIDENT TO ARREST MAY, UNDER APPROPRIATE CIRCUMSTANCES, EXTEND BEYOND
THE PERSON OF THE ONE ARRESTED TO INCLUDE THE PREMISES UNDER HIS
IMMEDIATE CONTROL.  THUS IN AGNELLO V. UNITED STATES, SUPRA, AT 30, IT
WAS SAID:  "THE RIGHT WITHOUT A SEARCH WARRANT CONTEMPORANEOUSLY TO
SEARCH PERSONS LAWFULLY ARRESTED WHILE COMMITTING CRIME AND TO SEARCH
THE PLACE WHERE THE ARREST IS MADE IN ORDER TO FIND AND SEIZE THINGS
CONNECTED WITH THE CRIME AS ITS FRUITS OR AS THE MEANS BY WHICH IT WAS
COMMITTED, AS WELL AS WEAPONS AND OTHER THINGS TO EFFECT AN ESCAPE FROM
CUSTODY, IS NOT TO BE DOUBTED."  FN14  IT IS EQUALLY CLEAR THAT A
SEARCH INCIDENT TO ARREST, WHICH IS OTHERWISE REASONABLE, IS NOT
AUTOMATICALLY RENDERED INVALID BY THE FACT THAT A DWELLING PLACE, AS
CONTRASTED TO A BUSINESS PREMISES, IS SUBJECTED TO SEARCH.  FN15 

NOR CAN SUPPORT BE FOUND FOR THE SUGGESTION THAT THE SEARCH COULD NOT
VALIDLY EXTEND BEYOND THE ROOM IN WHICH PETITIONER WAS ARRESTED.  FN16
PETITIONER WAS IN EXCLUSIVE POSSESSION OF A FOUR-ROOM APARTMENT.  HIS
CONTROL EXTENDED QUITE AS MUCH TO THE BEDROOM IN WHICH THE DRAFT CARDS
WERE FOUND AS TO THE LIVING ROOM IN WHICH HE WAS ARRESTED.  THE
CANCELED CHECKS AND OTHER INSTRUMENTALITIES OF THE CRIMES CHARGED IN
THE WARRANTS COULD EASILY HAVE BEEN CONCEALED IN ANY OF THE FOUR ROOMS
OF THE APARTMENT.  OTHER SITUATIONS MAY ARISE IN WHICH THE NATURE AND
SIZE OF THE OBJECT SOUGHT OR THE LACK OF EFFECTIVE CONTROL OVER THE
PREMISES ON THE PART OF THE PERSONS ARRESTED MAY REQUIRE THAT THE
SEARCHES BE LESS EXTENSIVE.  BUT THE AREA WHICH REASONABLY MAY BE
SUBJECTED TO SEARCH IS NOT TO BE DETERMINED BY THE FORTUITOUS
CIRCUMSTANCE THAT THE ARREST TOOK PLACE IN THE LIVING ROOM AS
CONTRASTED TO SOME OTHER ROOM OF THE APARTMENT. 

SIMILAR CONSIDERATIONS ARE APPLICABLE IN EVALUATING PETITIONER'S
CONTENTION THAT THE SEARCH WAS, IN ANY EVENT, TOO INTENSIVE.  HERE
AGAIN WE MUST LOOK TO THE PARTICULAR CIRCUMSTANCES OF THE PARTICULAR
CASE.  AS WAS OBSERVED BY THE CIRCUIT COURT OF APPEALS:  "IT IS NOT
LIKELY THAT THE CHECKS WOULD BE VISIBLY ACCESSIBLE.  BY THEIR VERY
NATURE THEY WOULD HAVE BEEN KEPT IN SOME SECLUDED SPOT  ...  "  THE
SAME METICULOUS INVESTIGATION WHICH WOULD BE APPROPRIATE IN A SEARCH
FOR TWO SMALL CANCELED CHECKS COULD NOT BE CONSIDERED REASONABLE WHERE
AGENTS ARE SEEKING A STOLEN AUTOMOBILE OR AN ILLEGAL STILL.  WE DO NOT
BELIEVE THAT THE SEARCH IN THIS CASE WENT BEYOND THAT WHICH THE
SITUATION REASONABLY DEMANDED. 

THIS IS NOT A CASE IN WHICH LAW ENFORCEMENT OFFICIALS HAVE INVADED A
PRIVATE DWELLING WITHOUT AUTHORITY AND SEIZED EVIDENCE OF CRIME.  AMOS
V. UNITED STATES, 255 U.S. 313(1921); BYARS V. UNITED STATES, 273 U.S.
28(1927); NUESLEIN V. DISTRICT OF COLUMBIA, 73 APP. D.C. 85, 115 F.2D
690(1940).  HERE THE AGENTS ENTERED THE APARTMENT UNDER THE AUTHORITY
OF LAWFUL WARRANTS OF ARREST.  NEITHER WAS THE ENTRY TORTIOUS NOR WAS
THE ARREST WHICH FOLLOWED IN ANY SENSE ILLEGAL. 

NOR IS THIS A CASE IN WHICH LAW-ENFORCEMENT OFFICERS HAVE ENTERED
PREMISES OSTENSIBLY FOR THE PURPOSE OF MAKING AN ARREST BUT IN REALITY
FOR THE PURPOSE OF CONDUCTING A GENERAL EXPLORATORY SEARCH FOR MERELY
EVIDENTIARY MATERIALS TENDING TO CONNECT THE ACCUSED WITH SOME CRIME. 
GO-BART COMPANY V. UNITED STATES, SUPRA; UNITED STATES V. LEFKOWITZ,
SUPRA.  IN THE PRESENT CASE THE AGENTS WERE IN POSSESSION OF FACTS
INDICATING PETITIONER'S PROBABLE GUILT OF THE CRIMES FOR WHICH THE
WARRANTS OF ARREST WERE ISSUED.  THE SEARCH WAS NOT A GENERAL
EXPLORATION BUT WAS SPECIFICALLY DIRECTED TO THE MEANS AND
INSTRUMENTALITIES BY WHICH THE CRIMES CHARGED HAD BEEN COMMITTED,
PARTICULARLY THE TWO CANCELED CHECKS OF THE MUDGE OIL COMPANY.  THE
CIRCUIT COURT OF APPEALS FOUND AND THE DISTRICT COURT ACTED ON THE
ASSUMPTION THAT THE AGENTS CONDUCTED THEIR SEARCH IN GOOD FAITH FOR THE
PURPOSE OF DISCOVERING THE OBJECTS SPECIFIED.  THAT DETERMINATION IS
SUPPORTED BY THE RECORD.  THE TWO CANCELED CHECKS WERE STOLEN FROM THE
OFFICES OF THE MUDGE OIL COMPANY.  THERE WAS EVIDENCE CONNECTING
PETITIONER WITH THAT THEFT.  THE SEARCH WHICH FOLLOWED THE ARREST WAS
APPROPRIATE FOR THE DISCOVERY OF SUCH OBJECTS.  NOTHING IN THE AGENTS'
CONDUCT WAS INCONSISTENT WITH THEIR DECLARED PURPOSE. 

FURTHERMORE, THE OBJECTS SOUGHT FOR AND THOSE ACTUALLY DISCOVERED
WERE PROPERLY SUBJECT TO SEIZURE.  THIS COURT HAS FREQUENTLY RECOGNIZED
THE DISTINCTION BETWEEN MERELY EVIDENTIARY MATERIALS, ON THE ONE HAND,
WHICH MAY NOT BE SEIZED EITHER UNDER THE AUTHORITY OF A SEARCH WARRANT
OR DURING THE COURSE OF A SEARCH INCIDENT TO ARREST, AND ON THE OTHER
HAND, THOSE OBJECTS WHICH MAY VALIDLY BE SEIZED INCLUDING THE
INSTRUMENTALITIES AND MEANS BY WHICH A CRIME IS COMMITTED, THE FRUITS
OF CRIME SUCH AS STOLEN PROPERTY, WEAPONS BY WHICH ESCAPE OF THE PERSON
ARRESTED MIGHT BE EFFECTED, AND PROPERTY THE POSSESSION OF WHICH IS A
CRIME.  FN17  CLEARLY THE CHECKS AND OTHER MEANS AND INSTRUMENTALITIES
OF THE CRIMES CHARGED IN THE WARRANTS TOWARD WHICH THE SEARCH WAS
DIRECTED AS WELL AS THE DRAFT CARDS WHICH WERE IN FACT SEIZED FALL
WITHIN THAT CLASS OF OBJECTS PROPERLY SUBJECT TO SEIZURE.  CERTAINLY
THIS IS NOT A CASE OF SEARCH FOR OR SEIZURE OF AN INDIVIDUAL'S PRIVATE
PAPERS, NOR DOES IT INVOLVE A PROSECUTION BASED UPON THE EXPRESSION OF
POLITICAL OR RELIGIOUS VIEWS IN SUCH PAPERS.  FN18 

NOR IS IT A SIGNIFICANT CONSIDERATION THAT THE DRAFT CARDS WHICH WERE
SEIZED WERE NOT RELATED TO THE CRIMES FOR WHICH PETITIONER WAS
ARRESTED.  HERE DURING THE COURSE OF A VALID SEARCH THE AGENTS CAME
UPON PROPERTY OF THE UNITED STATES IN THE ILLEGAL CUSTODY OF THE
PETITIONER.  IT WAS PROPERTY OF WHICH THE GOVERNMENT WAS ENTITLED TO
POSSESSION.  FN19  IN KEEPING THE DRAFT CARDS IN HIS CUSTODY PETITIONER
WAS GUILTY OF A SERIOUS AND CONTINUING OFFENSE AGAINST THE LAWS OF THE
UNITED STATES.  A CRIME WAS THUS BEING COMMITTED IN THE VERY PRESENCE
OF THE AGENTS CONDUCTING THE SEARCH.  NOTHING IN THE DECISIONS OF THIS
COURT GIVES SUPPORT TO THE SUGGESTION THAT UNDER SUCH CIRCUMSTANCES THE
LAW-ENFORCEMENT OFFICIALS MUST IMPOTENTLY STAND ASIDE AND REFRAIN FROM
SEIZING SUCH CONTRABAND MATERIAL.  IF ENTRY UPON THE PREMISES BE
AUTHORIZED AND THE SEARCH WHICH FOLLOWS BE VALID, THERE IS NOTHING IN
THE FOURTH AMENDMENT WHICH INHIBITS THE SEIZURE BY LAW-ENFORCEMENT
AGENTS OF GOVERNMENT PROPERTY THE POSSESSION OF WHICH IS A CRIME, EVEN
THOUGH THE OFFICERS ARE NOT AWARE THAT SUCH PROPERTY IS ON THE PREMISES
WHEN THE SEARCH IS INITIATED.  FN20 

THE DANGERS TO FUNDAMENTAL PERSONAL RIGHTS AND INTERESTS RESULTING
FROM EXCESSES OF LAW-ENFORCEMENT OFFICIALS COMMITTED DURING THE COURSE
OF CRIMINAL INVESTIGATIONS ARE NOT ILLUSORY.  THIS COURT HAS ALWAYS
BEEN ALERT TO PROTECT AGAINST SUCH ABUSE.  BUT WE SHOULD NOT PERMIT OUR
KNOWLEDGE THAT ABUSES SOMETIMES OCCUR TO GIVE SINISTER COLORATION TO
PROCEDURES WHICH ARE BASICALLY REASONABLE.  WE CONCLUDE THAT IN THIS
CASE THE EVIDENCE WHICH FORMED THE BASIS OF PETITIONER'S CONVICTION WAS
OBTAINED WITHOUT VIOLATION OF PETITIONER'S RIGHTS UNDER THE
CONSTITUTION.  AFFIRMED. 

FN1  THE INDICTMENT CONTAINED NINETEEN COUNTS.  PETITIONER WAS
CONVICTED ON THE SECOND, WHICH CHARGED THE FRAUDULENT CONCEALMENT OF 8
NOTICE OF CLASSIFICATION CARDS, DSS FORM 57, AND 11 REGISTRATION
CERTIFICATES, DSS FORM 2; THE THIRD, WHICH CHARGED FRAUDULENT
POSSESSION WITH INTENT TO CONVERT TO HIS OWN USE THE ABOVE-MENTIONED
PROPERTY; THE FOURTH THROUGH TENTH, CHARGING THE UNLAWFUL ALTERATION OF
A NOTICE OF CLASSIFICATION CARD; THE TWELFTH AND FOURTEENTH THROUGH
NINETEENTH, CHARGING THE UNLAWFUL POSSESSION OF AN ALTERED NOTICE OF
CLASSIFICATION CARD.  PETITIONER WAS ACQUITTED ON THE FIRST COUNT,
WHICH CHARGED THEFT OF GOVERNMENT PROPERTY.  COUNT 11, WHICH CHARGED
ALTERATION OF A NOTICE OF CLASSIFICATION CARD, AND COUNT 13, WHICH
CHARGED POSSESSION OF AN ALTERED CARD, WERE DISMISSED.  PETITIONER WAS
SENTENCED TO IMPRISONMENT FOR A TERM OF FIVE YEARS ON EACH OF THE
SIXTEEN COUNTS INDICATED, THE SENTENCES TO RUN CONCURRENTLY.    FN2  54
STAT. 885, 894-895, 50 U.S.C. APP. SEC. 311.  SECTION 623.61-2 OF THE
SELECTIVE SERVICE REGULATIONS STATES THAT "IT SHALL BE A VIOLATION OF
THESE REGULATIONS FOR ANY PERSON TO HAVE IN HIS POSSESSION" A NOTICE OF
CLASSIFICATION NOT REGULARLY ISSUED TO HIM OR TO ALTER OR FORGE ANY
NOTICE OF CLASSIFICATION.  SECTION 11 OF THE ACT MAKES THE FAILURE TO
PERFORM ANY DUTY REQUIRED BY THE REGULATIONS PUNISHABLE BY IMPRISONMENT
FOR NOT MORE THAN FIVE YEARS OR A FINE OF NOT MORE THAN $10,000.00 OR
BOTH. 

FN3  35 STAT. 1098, 18 U.S.C. SEC. 101.  INSOFAR AS PERTINENT, THE
CONCEALING, OR SHALL HAVE OR RETAIN IN HIS POSSESSION WITH INTENT TO
CONVERT TO HIS OWN USE OR GAIN, ANY  ...  PROPERTY OF THE UNITED
STATES, WHICH HAS THERETOFORE BEEN EMBEZZLED, STOLEN, OR PURLOINED BY
ANY OTHER PERSON, KNOWING THE SAME TO HAVE BEEN SO EMBEZZLED, STOLEN,
OR PURLOINED, SHALL BE FINED NOT MORE THAN $5,000, OR IMPRISONED NOT
MORE THAN FIVE YEARS, OR BOTH; ...  " 

FN4  THE FOURTH AMENDMENT PROVIDES:  "THE RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST
UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND NO
WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR
AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND
THE PERSONS OR THINGS TO BE SEIZED." 

FN5  INSOFAR AS PERTINENT, THE FIFTH AMENDMENT PROVIDES:  "NO PERSON
...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF,  ...  " 

FN6  35 STAT. 1130-1131, 18 U.S.C. SEC. 338. 

FN7  53 STAT. 1178-1179, 18 U.S.C. SEC. 413 ET SEQ. 

FN8  THE AGENTS WHO TESTIFIED IN THE PROCEEDINGS IN THE TRIAL COURT
CLEARLY STATED THAT THE OBJECT OF THE SEARCH WAS THE MEANS EMPLOYED IN
COMMITTING THE CRIMES CHARGED IN THE WARRANTS OF ARREST.  NONE OF THE
SUBSEQUENT STATEMENTS OF THE AGENTS, IF READ IN THEIR CONTEXT, ARE IN
CONFLICT WITH THAT ASSERTION. 

FN9  IT APPEARS THAT THE CHECKS WERE NEVER FOUND.  RESPONDENT
CONCEDES THAT, IN ADDITION TO THE DRAFT CARDS, SEVEN PENS AND A
QUANTITY OF TISSUE PAPER CAPABLE OF BEING EMPLOYED AS INSTRUMENTS OF
FORGERY WERE SEIZED.  ALSO TAKEN WERE TWENTY-SEVEN PIECES OF CELLULOID
WHICH AT THE TRIAL WERE DEMONSTRATED TO BE USEFUL IN PICKING A LOCK. 
IT WAS RESPONDENT'S THEORY THAT PETITIONER HAD OBTAINED THE CANCELED
CHECKS BY THEFT FROM THE OFFICES OF THE MUDGE OIL COMPANY AND THAT
ENTRY INTO THE OFFICES HAD BEEN ACHIEVED IN THAT MANNER.  PETITIONER
ALLEGED IN HIS MOTION TO SUPPRESS THAT VARIOUS OTHER ITEMS WERE TAKEN,
INCLUDING SHEETS OF BLANK PAPER, EXPENSE BILLS AND RECEIPTS, PERSONAL
MAIL, LETTERS, ETC. 

FN10  151 F.2D 837. 

FN11  SEE OPINION OF CARDOZO, J., IN PEOPLE V. CHIAGLES, 237 N.Y.
193, 142 N.E. 583(1923); TRIAL OF HENRY AND JOHN SHEARES, 27 HOW.  ST.
TR. 255, 321(1798). 

FN12  EXAMPLES OF THE PRACTICE ARE TO BE FOUND IN NUMEROUS CASES IN
THIS COURT AND IN THE LOWER FEDERAL COURTS.  WEEKS V. UNITED STATES,
SUPRA; AGNELLO V. UNITED STATES, SUPRA; CARROLL V. UNITED STATES, 267
U.S. 132(1925); UNITED STATES V. LEE, 274 U.S. 559(1927); MARRON V.
UNITED STATES, 275 U.S. 192(1927); GO-BART IMPORTING COMPANY V. UNITED
STATES, SUPRA; UNITED STATES V. LEFKOWITZ, 285 U.S. 452(1932); PARKS V.
UNITED STATES, 76 F.2D 709(1935); UNITED STATES V. 71.41 OUNCES GOLD,
94 F.2D 17(1938); MATTHEWS V. CORREA, 135 F.2D 534(1943). 

FN13  ARGETAKIS V. STATE, 24 ARIZ. 599, 212 PAC. 372(1923);
COMMONWEALTH V. PHILLIPS, 224 KY. 117, 5 S.W.2D 887(1928); BANKS V.
FARWELL, 21 PICK.  (MASS.)  156(1839).  AND SEE CASES CITED IN 32
A.L.R. 697; 51 A.L.R. 434. 

FN14  SIMILAR EXPRESSIONS MAY BE FOUND IN THE CASES CITED IN NOTES 12
AND 13.  THERE IS NOTHING IN THE GO-BART AND LEFKOWITZ CASES, SUPRA,
WHICH CASTS DOUBT ON THIS PROPOSITION. 

FN15  STRICTER REQUIREMENTS OF REASONABLENESS MAY APPLY WHERE A
DWELLING IS BEING SEARCHED.  DAVIS V. UNITED STATES, 328 U.S.
582(1946); MATTHEWS V. CORREA, SUPRA, AT 537. 

FN16  SEARCHES GOING BEYOND THE ROOM OF ARREST WERE UPHELD IN THE
AGNELLO AND MARRON CASES, SUPRA.  THE SEARCHES FOUND TO BE INVALID IN
THE GO-BART AND LEFKOWITZ CASES WERE SO HELD FOR REASONS OTHER THAN THE
AREAS COVERED BY THE SEARCHES.  IT HAS NOT BEEN THE UNDERSTANDING OF
THE LOWER FEDERAL COURTS THAT THE SEARCH IN EVERY CASE MUST BE SO
CONFINED.  SEE, FOR EXAMPLE:  UNITED STATES V. LINDENFELD, 142 F.2D
829(1944); MATTHEWS V. CORREA, SUPRA; UNITED STATES V. 71.41 OUNCES
GOLD, SUPRA. 

FN17  BOYD V. UNITED STATES, SUPRA, AT 623-624; WEEKS V. UNITED
STATES, SUPRA, AT 392-393; GOULED V. UNITED STATES, SUPRA, AT 309;
CARROLL V. UNITED STATES, SUPRA, AT 149-150; AGNELLO V. UNITED STATES,
SUPRA, AT 30; MARRON V. UNITED STATES, SUPRA, AT 199; UNITED STATES V.
LEFKOWITZ, SUPRA, AT 465-466.  THE SAME DISTINCTION IS DRAWN IN
NUMEROUS CASES IN THE LOWER FEDERAL COURTS:  MATTHEWS V. CORREA, SUPRA,
AT 537; UNITED STATES V. LINDENFELD, SUPRA, AT 832; IN RE GINSBURG, 147
F.2D 749, 751(1945). 

FN18  ENTICK V. CARRINGTON, 19 HOW.  ST. TR. 1030, 1073-1074(1765). 

FN19  DAVIS V. UNITED STATES, SUPRA AT 590.  AND SEE BOYD V. UNITED
STATES, SUPRA, 623-624; WILSON V. UNITED STATES, 221 U.S. 361,
380(1911). 

FN20  MILAM V. UNITED STATES, 296 F. 629(1924); UNITED STATES V. OLD
DOMINION WAREHOUSE, 10 F.2D 736(1926); UNITED STATES V. TWO SOAKING
UNITS, 48 F.2D 107(1931); PAPER V. UNITED STATES, 53 F.2D 184(1931);
BENTON V. UNITED STATES, 70 F.2D 24(1934); MATTHEWS V. CORREA, SUPRA. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE MURPHY AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING. 

BECAUSE I DEEM THE IMPLICATIONS OF THE COURT'S DECISION TO HAVE
SERIOUS THREATS TO BASIC LIBERTIES, I CONSIDER IT IMPORTANT TO
UNDERSCORE MY CONCERN OVER THE OUTCOME OF THIS CASE.  IN DAVIS V.
UNITED STATES, 328 U.S. 582, THE COURT NARROWED THE PROTECTION OF THE
FOURTH AMENDMENT FN1  BY EXTENDING THE CONCEPTION OF "PUBLIC RECORDS"
FOR PURPOSES OF SEARCH WITHOUT WARRANT.  FN2 THE COURT NOW GOES FAR
BEYOND PRIOR DECISIONS IN ANOTHER DIRECTION - IT PERMITS RUMMAGING
THROUGHOUT A HOUSE WITHOUT A SEARCH WARRANT ON THE OSTENSIBLE GROUND OF
LOOKING FOR THE INSTRUMENTS OF A CRIME FOR WHICH AN ARREST, BUT ONLY AN
ARREST, HAS BEEN AUTHORIZED.  IF ONLY THE FATE OF THE DAVISES AND THE
HARRISES WERE INVOLVED, ONE MIGHT BE BRUTALLY INDIFFERENT TO THE WAYS
BY WHICH THEY GET THEIR DESERTS.  BUT IT IS PRECISELY BECAUSE THE
APPEAL TO THE FOURTH AMENDMENT IS SO OFTEN MADE BY DUBIOUS CHARACTERS
THAT ITS INFRINGEMENTS CALL FOR ALERT AND STRENUOUS RESISTANCE. 
FREEDOM OF SPEECH, OF THE PRESS, OF RELIGION, EASILY SUMMON POWERFUL
SUPPORT AGAINST ENCROACHMENT.  THE PROHIBITION AGAINST UNREASONABLE
SEARCH AND SEIZURE IS NORMALLY INVOKED BY THOSE ACCUSED OF CRIME, AND
CRIMINALS HAVE FEW FRIENDS.  THE IMPLICATIONS OF SUCH ENCROACHMENT,
HOWEVER, REACH FAR BEYOND THE THIEF OR THE BLACK-MARKETEER.  I CANNOT
GIVE LEGAL SANCTION TO WHAT WAS DONE IN THIS CASE WITHOUT ACCEPTING THE
IMPLICATIONS OF SUCH A DECISION FOR THE FUTURE, IMPLICATIONS WHICH
PORTEND SERIOUS THREATS AGAINST PRECIOUS ASPECTS OF OUR TRADITIONAL
FREEDOM. 

IF I BEGIN WITH SOME GENERAL OBSERVATIONS, IT IS NOT BECAUSE I AM
UNMINDFUL OF MR. JUSTICE HOLMES' CAUTION THAT "GENERAL PROPOSITIONS DO
NOT DECIDE CONCRETE CASES."  LOCHNER V. NEW YORK, 198 U.S. 45, 76. 
WHETHER THEY DO OR NOT OFTEN DEPENDS ON THE STRENGTH OF THE CONVICTION
WITH WHICH SUCH "GENERAL PROPOSITIONS" ARE HELD.  A PRINCIPLE MAY BE
ACCEPTED "IN PRINCIPLE," BUT THE IMPACT OF AN IMMEDIATE SITUATION MAY
LEAD TO DEVIATION FROM THE PRINCIPLE.  OR, WHILE ACCEPTED "IN
PRINCIPLE," A COMPETING PRINCIPLE MAY SEEM MORE IMPORTANT.  BOTH THESE
CONSIDERATIONS HAVE DOUBTLESS INFLUENCED THE APPLICATION OF THE SEARCH
AND SEIZURE PROVISIONS OF THE BILL OF RIGHTS.  THUS, ONE'S VIEWS
REGARDING CIRCUMSTANCES LIKE THOSE HERE PRESENTED ULTIMATELY DEPEND
UPON ONE'S UNDERSTANDING OF THE HISTORY AND THE FUNCTION OF THE FOURTH
AMENDMENT.  A DECISION MAY TURN ON WHETHER ONE GIVES THAT AMENDMENT A
PLACE SECOND TO NONE IN THE BILL OF RIGHTS, OR CONSIDERS IT ON THE
WHOLE A KIND OF NUISANCE, A SERIOUS IMPEDIMENT IN THE WAR AGAINST
CRIME. 

THE PROVENANCE OF THE FOURTH AMENDMENT BEARS ON ITS SCOPE.  IT WILL
BE RECALLED THAT JAMES OTIS MADE HIS EPOCHAL ARGUMENT AGAINST GENERAL
WARRANTS IN 1761.  FN3  OTIS' DEFENSE OF PRIVACY WAS ENSHRINED IN THE
MASSACHUSETTS CONSTITUTION OF 1780 IN THE FOLLOWING TERMS: 

"XIV.  EVERY SUBJECT HAS A RIGHT TO BE SECURE FROM ALL UNREASONABLE
SEARCHES, AND SEIZURES OF HIS PERSON, HIS HOUSES, HIS PAPERS, AND ALL
HIS POSSESSIONS.  ALL WARRANTS, THEREFORE, ARE CONTRARY TO THIS RIGHT,
IF THE CAUSE OR FOUNDATION OF THEM BE NOT PREVIOUSLY SUPPORTED BY OATH
OR AFFIRMATION; AND IF THE ORDER IN THE WARRANT TO A CIVIL OFFICER, TO
MAKE SEARCH IN SUSPECTED PLACES, OR TO ARREST ONE OR MORE SUSPECTED
PERSONS, OR TO SEIZE THEIR PROPERTY, BE NOT ACCOMPANIED WITH A SPECIAL
DESIGNATION OF THE PERSONS OR OBJECTS OF SEARCH, ARREST, OR SEIZURE:
AND NO WARRANT OUGHT TO BE ISSUED BUT IN CASES, AND WITH THE
FORMALITIES, PRESCRIBED BY THE LAWS." 

IN THE MEANTIME, VIRGINIA, IN HER FIRST CONSTITUTION (1776),
INCORPORATED A PROVISION ON THE SUBJECT NARROWER IN SCOPE: 

"X.  THAT GENERAL WARRANTS, WHEREBY AN OFFICER OR MESSENGER MAY BE
COMMANDED TO SEARCH SUSPECTED PLACES WITHOUT EVIDENCE OF A FACT
COMMITTED, OR TO SEIZE ANY PERSON OR PERSONS NOT NAMED, OR WHOSE
OFFENCE IS NOT PARTICULARLY DESCRIBED AND SUPPORTED BY EVIDENCE, ARE
GRIEVOUS AND OPPRESSIVE, AND OUGHT NOT TO BE GRANTED." 

WHEN MADISON CAME TO DEAL WITH SAFEGUARDS AGAINST SEARCHES AND
SEIZURES IN THE UNITED STATES CONSTITUTION, HE DID NOT DRAW ON THE
VIRGINIA MODEL BUT BASED HIS PROPOSAL ON THE MASSACHUSETTS FORM.  THIS
IS CLEAR PROOF THAT CONGRESS MEANT TO GIVE WIDE, AND NOT LIMITED, SCOPE
TO THIS PROTECTION AGAINST POLICE INTRUSION. 

HISTORICALLY WE ARE DEALING WITH A PROVISION OF THE CONSTITUTION
WHICH SOUGHT TO GUARD AGAINST AN ABUSE THAT MORE THAN ANY ONE SINGLE
FACTOR GAVE RISE TO AMERICAN INDEPENDENCE.  JOHN ADAMS SURELY IS A
COMPETENT WITNESS ON THE CAUSES OF THE AMERICAN REVOLUTION.  AND HE IT
WAS WHO SAID OF OTIS' ARGUMENT AGAINST SEARCH BY THE POLICE, NOT UNLIKE
THE ONE BEFORE US, "AMERICAN INDEPENDENCE WAS THEN AND THERE BORN."  10
ADAMS, WORKS 247.  THAT WHICH LAY BEHIND IMMUNITY FROM POLICE INTRUSION
WITHOUT A SEARCH WARRANT WAS EXPRESSED BY MR. JUSTICE BRANDEIS WHEN HE
SAID THAT THE MAKERS OF OUR CONSTITUTION 

"CONFERRED, AS AGAINST THE GOVERNMENT, THE RIGHT TO BE LET ALONE -
THE MOST COMPREHENSIVE OF RIGHTS AND THE RIGHT MOST VALUED BY CIVILIZED
MEN.  TO PROTECT THAT RIGHT, EVERY UNJUSTIFIABLE INTRUSION BY THE
GOVERNMENT UPON THE PRIVACY OF THE INDIVIDUAL, WHATEVER THE MEANS
EMPLOYED, MUST BE DEEMED A VIOLATION OF THE FOURTH AMENDMENT." 

TO BE SURE, THAT WAS SAID BY HIM IN A DISSENTING OPINION IN WHICH HE,
WITH MR. JUSTICE HOLMES, MR. JUSTICE BUTLER AND MR. JUSTICE STONE
APPLIED THE PROHIBITION OF THE FOURTH AMENDMENT TO WIRETAPPING WITHOUT
STATUTORY AUTHORITY.  OLMSTEAD V. UNITED STATES, 277 U.S. 438, 478. 
BUT WITH ONLY AN OCCASIONAL DEVIATION, A SERIES OF DECISIONS OF THIS
COURT HAS CONSTRUED THE FOURTH AMENDMENT "LIBERALLY TO SAFEGUARD THE
RIGHT OF PRIVACY."  UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 464. 
(SEE AN ANALYSIS OF THE CASES IN THE APPENDIX TO THIS OPINION.)  THUS,
THE FEDERAL RULE ESTABLISHED IN WEEKS V. UNITED STATES, 232 U.S. 383,
AS AGAINST THE RULE PREVAILING IN MANY STATES, RENDERS EVIDENCE
OBTAINED THROUGH AN IMPROPER SEARCH INADMISSIBLE NO MATTER HOW
RELEVANT.  SEE PEOPLE V. DEFORE, 242 N.Y. 13, 150 N.E. 585, AND CHAFEE,
THE PROGRESS OF THE LAW 1919-1922, 35 HARV. L. REV. 673, 694 ET SEQ.
AND LONG BEFORE THE WEEKS CASE, BOYD V. UNITED STATES, 116 U.S. 616,
GAVE LEGAL EFFECT TO THE BROAD HISTORIC POLICY UNDERLYING THE FOURTH
AMENDMENT.  FN4 THE BOYD OPINION HAS BEEN THE GUIDE TO THE
INTERPRETATION OF THE FOURTH AMENDMENT TO WHICH THE COURT HAS MOST
FREQUENTLY RECURRED. 

IT IS SIGNIFICANT THAT THE CONSTITUTION OF EVERY STATE CONTAINS A
CLAUSE LIKE THAT OF THE FOURTH AMENDMENT AND OFTEN IN ITS PRECISE
WORDING.  NOR ARE THESE CONSTITUTIONAL PROVISIONS HISTORIC SURVIVALS. 
NEW YORK WAS ALONE IN NOT HAVING A SAFEGUARD AGAINST UNREASONABLE
SEARCH AND SEIZURE IN ITS CONSTITUTION.  IN THAT STATE, THE PRIVILEGE
OF PRIVACY WAS SAFEGUARDED BY A STATUTE.  IT TELLS VOLUMES THAT IN
1938, NEW YORK, NOT CONTENT WITH STATUTORY PROTECTION, PUT THE
SAFEGUARD INTO ITS CONSTITUTION.  FN5  IF ONE THING ON THIS SUBJECT CAN
BE SAID WITH CONFIDENCE IT IS THAT THE PROTECTION AFFORDED BY THE
FOURTH AMENDMENT AGAINST SEARCH AND SEIZURE BY THE POLICE, EXCEPT UNDER
THE CLOSEST JUDICIAL SAFEGUARDS, IS NOT AN OUTWORN BIT OF EIGHTEENTH
CENTURY ROMANTIC RATIONALISM BUT AN INDISPENSABLE NEED FOR A DEMOCRATIC
SOCIETY. 

THE FOURTH AMENDMENT, WE HAVE SEEN, DERIVES FROM THE SIMILAR
PROVISION IN THE FIRST MASSACHUSETTS CONSTITUTION.  WE MAY THEREFORE
LOOK TO THE CONSTRUCTION WHICH THE EARLY MASSACHUSETTS COURT PLACED
UPON THE PROGENITOR OF THE FOURTH AMENDMENT: 

"WITH THE FRESH RECOLLECTION OF THOSE STIRRING DISCUSSIONS
(RESPECTING WRITS OF ASSISTANCE), AND OF THE REVOLUTION WHICH FOLLOWED
THEM, THE ARTICLE IN THE BILL OF RIGHTS, RESPECTING SEARCHES AND
SEIZURES, WAS FRAMED AND ADOPTED.  THIS ARTICLE DOES NOT PROHIBIT ALL
SEARCHES AND SEIZURES OF A MAN'S PERSON, HIS PAPERS, AND POSSESSIONS;
BUT SUCH ONLY AS ARE 'UNREASONABLE,' AND THE FOUNDATION OF WHICH IS
'NOT PREVIOUSLY SUPPORTED BY OATH OR AFFIRMATION.'  THE LEGISLATURE
WERE NOT DEPRIVED OF THE POWER TO AUTHORIZE SEARCH WARRANTS FOR
PROBABLE CAUSES, SUPPORTED BY OATH OR AFFIRMATION, AND FOR THE
PUNISHMENT OR SUPPRESSION OF ANY VIOLATION OF LAW."  COMMONWEALTH V.
DANA, 2 MET.  (MASS.)  329, 336.    THE PLAIN IMPORT OF THIS IS THAT
SEARCHES ARE "UNREASONABLE" UNLESS AUTHORIZED BY A WARRANT, AND A
WARRANT HEDGED ABOUT BY ADEQUATE SAFEGUARDS.  "UNREASONABLE" IS NOT TO
BE DETERMINED WITH REFERENCE TO A PARTICULAR SEARCH AND SEIZURE
CONSIDERED IN ISOLATION.  THE "REASON" BY WHICH SEARCH AND SEIZURE IS
TO BE TESTED IS THE "REASON" THAT WAS WRITTEN OUT OF HISTORIC
EXPERIENCE INTO THE FOURTH AMENDMENT.  THIS MEANS THAT, WITH MINOR AND
SEVERELY CONFINED EXCEPTIONS, INFERENTIALLY A PART OF THE AMENDMENT,
EVERY SEARCH AND SEIZURE IS UNREASONABLE WHEN MADE WITHOUT A
MAGISTRATE'S AUTHORITY EXPRESSED THROUGH A VALIDLY ISSUED WARRANT. 

IT IS NOTEWORTHY THAT CONGRESS HAS CONSISTENTLY AND CAREFULLY
RESPECTED THE PRIVACY PROTECTED BY THE FOURTH AMENDMENT.  BECAUSE THEY
REALIZED THAT THE DANGERS OF POLICE ABUSE WERE PERSISTING DANGERS, THE
FATHERS PUT THE FOURTH AMENDMENT INTO THE CONSTITUTION.  BECAUSE THESE
DANGERS ARE INHERENT IN THE TEMPTATIONS AND THE TENDENCIES OF THE
POLICE, CONGRESS HAS ALWAYS BEEN CHARY IN ALLOWING THE USE OF SEARCH
WARRANTS.  WHEN IT HAS AUTHORIZED THEM IT HAS CIRCUMSCRIBED THEIR USE
WITH PARTICULARITY.  IN SCORES UPON SCORE OF ACTS, CONGRESS AUTHORIZED
SEARCH BY WARRANT ONLY FOR PARTICULAR SITUATIONS AND IN EXTREMELY
RESTRICTED WAYS.  DESPITE REPEATED IMPORTUNITIES BY ATTORNEYS GENERAL
OF THE UNITED STATES, CONGRESS LONG REFUSED TO MAKE SEARCH BY WARRANT
GENERALLY AVAILABLE AS A RESOURCE IN AID OF CRIMINAL PROSECUTION.  IT
DID NOT DO SO UNTIL THE FIRST WORLD WAR, AND EVEN THEN IT DID NOT DO SO
EXCEPT UNDER CONDITIONS CAREFULLY CIRCUMSCRIBED. 

THE WHOLE HISTORY OF LEGISLATION DEALING WITH SEARCH AND SEIZURE
SHOWS HOW WARILY CONGRESS HAS WALKED PRECISELY BECAUSE OF THE FOURTH
AMENDMENT.  A SEARCH OF THE ENTIRE PREMISES FOR INSTRUMENTS OF CRIME
MERELY AS AN INCIDENT TO A WARRANT OF ARREST HAS NEVER BEEN AUTHORIZED
BY CONGRESS.  NOR HAS CONGRESS EVER AUTHORIZED SUCH SEARCH WITHOUT A
WARRANT EVEN FOR STOLEN OR CONTRABAND GOODS.  ON THE CONTRARY, IT IS
PRECISELY FOR THE SEARCH OF SUCH GOODS THAT SPECIFIC LEGISLATIVE
AUTHORIZATION WAS GIVEN BY CONGRESS.  WARRANTS EVEN FOR SUCH SEARCH
REQUIRED GREAT PARTICULARITY AND COULD BE ISSUED ONLY ON ADEQUATE
GROUNDS.  (FOR A TABLE OF CONGRESSIONAL LEGISLATION, WITH INDICATION AS
TO ITS SCOPE, SEE THE APPENDIX TO THE DISSENTING OPINION IN THE DAVIS
CASE, 328 U.S. AT 616.) 

THIS IS THE HISTORIC BACKGROUND AGAINST WHICH THE UNDISPUTED FACTS OF
THIS CASE MUST BE PROJECTED.  FOR ME THE BACKGROUND IS RESPECT FOR THAT
PROVISION OF THE BILL OF RIGHTS WHICH IS CENTRAL TO ENJOYMENT OF THE
OTHER GUARANTEES OF THE BILL OF RIGHTS.  HOW CAN THERE BE FREEDOM OF
THOUGHT OR FREEDOM OF SPEECH OR FREEDOM OF RELIGION, IF THE POLICE CAN,
WITHOUT WARRANT, SEARCH YOUR HOUSE AND MINE FROM GARRET TO CELLAR
MERELY BECAUSE THEY ARE EXECUTING A WARRANT OF ARREST?  HOW CAN MEN
FEEL FREE IF ALL THEIR PAPERS MAY BE SEARCHED, AS AN INCIDENT TO THE
ARREST OF SOMEONE IN THE HOUSE, ON THE CHANCE THAT SOMETHING MAY TURN
UP, OR RATHER, BE TURNED UP?  YESTERDAY THE JUSTIFYING DOCUMENT WAS AN
ILLICIT RATION BOOK, TOMORROW IT MAY BE SOME SUSPECT PIECE OF
LITERATURE. 

THE COURT'S REASONING, AS I UNDERSTAND IT, MAY BE BRIEFLY STATED. 
THE ENTRY INTO HARRIS' APARTMENT WAS LAWFUL BECAUSE THE AGENTS HAD A
WARRANT OF ARREST.  THE ENSUING SEARCH WAS LAWFUL BECAUSE, AS AN
INCIDENT OF A LAWFUL ARREST, THE POLICE MAY SEARCH THE PREMISES ON
WHICH THE ARREST TOOK PLACE SINCE EVERYTHING IN THE APARTMENT WAS IN
THE "POSSESSION" OF THE ACCUSED AND SUBJECT TO HIS CONTROL.  IT WAS
LAWFUL, THEREFORE, FOR THE AGENTS TO RUMMAGE THE APARTMENT IN SEARCH
FOR "INSTRUMENTS OF THE CRIME."  SINCE THE SEARCH WAS LAWFUL, ANYTHING
ILLICIT DISCOVERED IN THE COURSE OF THE SEARCH WAS LAWFULLY SEIZED.  IN
ANY EVENT, THE SEIZURE WAS LAWFUL BECAUSE THE DOCUMENTS FOUND WERE
PROPERTY OF THE UNITED STATES AND THEIR POSSESSION WAS A CONTINUING
CRIME AGAINST THE UNITED STATES. 

MUCH IS MADE OF THE FACT THAT THE ENTRY INTO THE HOUSE WAS LAWFUL. 
BUT WE ARE NOT CONFINED TO ISSUES OF TRESPASS.  THE PROTECTION OF THE
FOURTH AMENDMENT EXTENDS TO IMPROPER SEARCHES AND SEIZURES, QUITE APART
FROM THE LEGALITY OF AN ENTRY.  THE AMENDMENT ASSERTS THE "RIGHT OF THE
PEOPLE TO BE SECURE" NOT ONLY "IN THEIR PERSONS, HOUSES," BUT ALSO IN
THEIR "PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES."  IT IS ALSO ASSUMED THAT BECAUSE THE SEARCH WAS ALLEGEDLY
FOR INSTRUMENTS OF THE CRIME FOR WHICH HARRIS WAS ARRESTED IT WAS IPSO
FACTO JUSTIFIED AS AN INCIDENT OF THE ARREST.  IT WOULD HARDLY BE
SUGGESTED THAT SUCH A SEARCH COULD BE MADE WITHOUT WARRANT IF HARRIS
HAD BEEN ARRESTED ON THE STREET.  HOW, THEN, IS RUMMAGING A MAN'S
CLOSETS AND DRAWERS MORE INCIDENTAL TO THE ARREST BECAUSE THE POLICE
CHOSE TO ARREST HIM AT HOME?  FOR SOME PURPOSES, TO BE SURE, A MAN'S
HOUSE AND ITS CONTENTS ARE DEEMED TO BE IN HIS "POSSESSION" OR
"CONTROL" EVEN WHEN HE IS MILES AWAY.  BECAUSE THIS IS A MODE OF LEGAL
REASONING RELEVANT TO DISPUTES OVER PROPERTY, THE USUAL PHRASE FOR SUCH
NON-PHYSICAL CONTROL IS "CONSTRUCTIVE POSSESSION."  BUT THIS MODE OF
THOUGHT AND THESE CONCEPTS ARE IRRELEVANT TO THE APPLICATION OF THE
FOURTH AMENDMENT AND HOSTILE TO RESPECT FOR THE LIBERTIES WHICH IT
PROTECTS.  DUE REGARD FOR THE POLICY OF THE FOURTH AMENDMENT PRECLUDES
INDULGENCE IN THE FICTION THAT THE RECESSES OF A MAN'S HOUSE ARE LIKE
THE POCKETS OF THE CLOTHES HE WEARS AT THE TIME OF HIS ARREST. 

TO FIND AUTHORITY FOR RANSACKING A HOME MERELY FROM AUTHORITY FOR THE
ARREST OF A PERSON IS TO GIVE A NOVEL AND OMINOUS RENDERING TO A
MOMENTOUS CHAPTER IN THE HISTORY OF ANGLO-AMERICAN FREEDOM.  AN
ENGLISHMAN'S HOME, THOUGH A HOVEL, IS HIS CASTLE, PRECISELY BECAUSE THE
LAW SECURES FREEDOM FROM FEAR OF INTRUSION BY THE POLICE EXCEPT UNDER
CAREFULLY SAFEGUARDED AUTHORIZATION BY A MAGISTRATE.  TO DERIVE FROM
THE COMMON LAW RIGHT TO SEARCH THE PERSON AS AN INCIDENT OF HIS ARREST
THE RIGHT OF INDISCRIMINATE SEARCH OF ALL HIS BELONGINGS, IS TO
DISREGARD THE FACT THAT THE CONSTITUTION PROTECTS BOTH UNAUTHORIZED
ARREST AND UNAUTHORIZED SEARCH.  AUTHORITY TO ARREST DOES NOT DISPENSE
WITH THE REQUIREMENT OF AUTHORITY TO SEARCH. 

BUT EVEN IF THE SEARCH WAS REASONABLE, IT DOES NOT FOLLOW THAT THE
SEIZURE WAS LAWFUL.  IF THE AGENTS HAD OBTAINED A WARRANT TO LOOK FOR
THE CANCELLED CHECKS, THEY WOULD NOT BE ENTITLED TO SEIZE OTHER ITEMS
DISCOVERED IN THE PROCESS.  MARRON V. UNITED STATES, 275 U.S. 192,
196.  FN6 HARRIS WOULD HAVE BEEN ABLE TO RECLAIM THEM BY A MOTION TO
SUPPRESS EVIDENCE.  SUCH IS THE POLICY OF THE FOURTH AMENDMENT,
RECOGNIZED BY CONGRESS AND REFORMULATED IN THE NEW RULES OF CRIMINAL
PROCEDURE ADOPTED ONLY LAST YEAR.  SEE RULE 41(E) SUPERSEDING THE ACT
OF JUNE 15, 1917, 40 STAT. 228, 229.  THE COURT'S DECISION ACHIEVES THE
NOVEL AND STARTLING RESULT OF MAKING THE SCOPE OF SEARCH WITHOUT
WARRANT BROADER THAN AN AUTHORIZED SEARCH. 

THESE PRINCIPLES ARE WELL ESTABLISHED.  WHILE A FEW OF THE LOWER
COURTS HAVE UNCRITICALLY AND UNWARRANTEDLY EXTENDED THE VERY LIMITED
SEARCH WITHOUT WARRANT OF A PERSON UPON HIS LAWFUL ARREST, SUCH
EXTENSION IS HOSTILE TO THE POLICY OF THE AMENDMENT AND IS NOT
WARRANTED BY THE PRECEDENTS OF THIS COURT. 

"IT IS IMPORTANT TO KEEP CLEAR THE DISTINCTION BETWEEN PROHIBITED
SEARCHES ON THE ONE HAND AND IMPROPER SEIZURES ON THE OTHER.  SEE MR.
JUSTICE MILLER, IN BOYD V. UNITED STATES, 116 U.S. 616, 638, 641. 
THUS, IT IS UNCONSTITUTIONAL TO SEIZE A PERSON'S PRIVATE PAPERS, THOUGH
THE SEARCH IN WHICH THEY WERE RECOVERED WAS PERFECTLY PROPER.  E.G.,
GOULED V. UNITED STATES, 255 U.S. 298.  IT IS UNCONSTITUTIONAL TO MAKE
AN IMPROPER SEARCH EVEN FOR ARTICLES THAT ARE APPROPRIATELY SUBJECT TO
SEIZURE, E.G., AMOS V. UNITED STATES, 255 U.S. 313; BYARS V. UNITED
STATES, 273 U.S. 28; TAYLOR V. UNITED STATES, 286 U.S. 1.  AND A SEARCH
MAY BE IMPROPER BECAUSE OF THE OBJECT IT SEEKS TO UNCOVER, E.G., WEEKS
V. UNITED STATES, 232 U.S. 383, 393-94, OR BECAUSE ITS SCOPE EXTENDS
BEYOND THE CONSTITUTIONAL BOUNDS, E.G., AGNELLO V. UNITED STATES, 269
U.S. 20. 

"THE COURSE OF DECISIONS HERE HAS OBSERVED THESE IMPORTANT
DISTINCTIONS.  THE COURT HAS NOT BEEN INDULGENT TOWARDS INROADS UPON
THE AMENDMENT.  ONLY RARELY HAVE ITS DICTA APPEARED TO GIVE UNDUE SCOPE
TO THE RIGHT OF SEARCH ON ARREST, AND MARRON V. UNITED STATES, SUPRA
(275 U.S. 192), IS THE ONLY DECISION IN WHICH THE DICTA WERE REFLECTED
IN THE RESULT.  THAT CASE HAS BEEN A SOURCE OF CONFUSION TO THE LOWER
COURTS.  THUS, THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT FELT
THAT THE MARRON CASE REQUIRED IT TO GIVE A MORE RESTRICTED VIEW TO THE
PROHIBITIONS OF THE FOURTH AMENDMENT THAN THAT COURT HAD EXPOUNDED IN
UNITED STATES V. KIRSCHENBLATT, 16 F.2D 202, SEE GO-BART CO. V. UNITED
STATES, SUB NOM., UNITED STATES V. GOWEN, 40 F.2D 593, ONLY TO FIND
ITSELF REVERSED HERE, GO-BART CO. V. UNITED STATES, SUPRA (282 U.S.
344), PARTLY ON THE AUTHORITY OF THE KIRSCHENBLATT DECISION WHICH,
AFTER THE MARRON CASE, IT THOUGHT IT MUST DISOWN.  THE UNCRITICAL
APPLICATION OF THE RIGHT OF SEARCH ON ARREST IN THE MARRON CASE HAS
SURELY BEEN DISPLACED BY GO-BART CO. V. UNITED STATES, SUPRA, AND EVEN
MORE DRASTICALLY BY UNITED STATES V. LEFKOWITZ, SUPRA (285 U.S. 452),
UNLESS ONE IS TO INFER THAT AN EARLIER CASE QUALIFIES LATER DECISIONS
ALTHOUGH THESE LATER DECISIONS HAVE EXPLICITLY CONFINED THE EARLIER
CASE."  DAVIS V. UNITED STATES, 328 U.S. AT 612-13(DISSENTING
OPINION). 

IT IS URGED THAT EVEN IF THE SEARCH WAS NOT JUSTIFIED, ONCE IT WAS
MADE AND THE ILLICIT DOCUMENTS DISCOVERED, THEY COULD BE SEIZED BECAUSE
THEIR POSSESSION WAS A "CONTINUING OFFENSE" COMMITTED "IN THE VERY
PRESENCE OF THE AGENTS."  APPARENTLY, THEN, A SEARCH UNDERTAKEN
ILLEGALLY MAY RETROSPECTIVELY, BY A LEGAL FIGMENT, GAIN LEGALITY FROM
WHAT HAPPENED FOUR HOURS LATER.  THIS IS TO DEFEAT THE PROHIBITION
AGAINST LAWLESS SEARCH AND SEIZURE BY THE APPLICATION OF AN INVERTED
NOTION OF TRESPASS AB INITIO.  HERE AN UNCONSTITUTIONAL TRESPASS AB
INITIO RETROSPECTIVELY ACQUIRES LEGALITY.  THUS, THE DECISION FINDS
SATISFACTION OF THE CONSTITUTIONAL REQUIREMENT BY CIRCULAR REASONING. 
SEARCH REQUIRES AUTHORITY; AUTHORITY TO SEARCH IS GAINED BY WHAT MAY BE
FOUND DURING SEARCH WITHOUT AUTHORITY.  BY THIS REASONING EVERY ILLEGAL
SEARCH AND SEIZURE MAY BE VALIDATED IF THE POLICE FIND EVIDENCE OF
CRIME.  THE RESULT CAN HARDLY BE TO DISCOURAGE POLICE VIOLATION OF THE
CONSTITUTIONAL PROTECTION. 

IF THE SEARCH IS ILLEGAL WHEN BEGUN, AS IT CLEARLY WAS IN THIS CASE
IF PAST DECISIONS MEAN ANYTHING, IT CANNOT RETROSPECTIVELY GAIN
LEGALITY.  IF THE SEARCH WAS ILLEGAL, THE RESULTING SEIZURE IN THE
COURSE OF THE SEARCH IS ILLEGAL.  IT IS NO ANSWER TO SAY THAT
POSSESSION OF A DOCUMENT MAY ITSELF BE A CRIME.  THERE IS NO SUGGESTION
HERE THAT THE SEARCH WAS BASED ON EVEN A SUSPICION THAT HARRIS WAS IN
POSSESSION OF ILLICIT DOCUMENTS.  THE SEARCH WAS JUSTIFIED AND IS
JUSTIFIED ONLY IN CONNECTION WITH THE OFFENSE FOR WHICH THERE WAS A
WARRANT OF ARREST.  BUT UNLESS WE ARE GOING TO THROW TO THE WINDS THE
LATEST UNANIMOUS DECISIONS OF THIS COURT ON THE ALLOWABLE RANGE OF
SEARCH WITHOUT WARRANT INCIDENTAL TO LAWFUL ARREST, GO-BART CO. V.
UNITED STATES, 282 U.S. 344, AND UNITED STATES V. LEFKOWITZ, 285 U.S.
452, THIS WAS AN UNLAWFUL SEARCH WHICH RENDERED UNAVAILABLE AS EVIDENCE
EVERYTHING SEIZED IN THE COURSE OF IT.  THAT THE AGENTS MIGHT HAVE
OBTAINED A WARRANT TO MAKE THE SEARCH ONLY EMPHASIZES THE ILLEGALITY OF
THEIR CONDUCT.  IN THE WORDS OF MR. JUSTICE HOLMES, SPEAKING FOR THE
COURT, THE PRECIOUS CONSTITUTIONAL RIGHTS "AGAINST UNLAWFUL SEARCH AND
SEIZURE ARE TO BE PROTECTED EVEN IF THE SAME RESULT MIGHT HAVE BEEN
ACHIEVED IN A LAWFUL WAY."  SILVERTHORNE LUMBER CO. V. UNITED STATES,
251 U.S. 385, 392.  NOR DOES THE FACT THAT THE GOODS SEIZED ARE
CONTRABAND MAKE VALID AN OTHERWISE UNLAWFUL SEARCH AND SEIZURE. 
AGNELLO V. UNITED STATES, 269 U.S. 20.  INDEED IT WAS FOR CONTRABAND
GOODS THAT SEARCH WARRANTS, CAREFULLY HEDGED ABOUT, WERE FIRST
AUTHORIZED BY CONGRESS. 

THE ONLY EXCEPTIONS TO THE SAFEGUARD OF A WARRANT ISSUED BY A
MAGISTRATE ARE THOSE WHICH THE COMMON LAW RECOGNIZED AS INHERENT
LIMITATIONS OF THE POLICY WHICH FOUND EXPRESSION IN THE FOURTH
AMENDMENT - WHERE CIRCUMSTANCES PRECLUDE THE OBTAINING OF A WARRANT (AS
IN THE CASE OF MOVABLE VEHICLES), AND WHERE THE WARRANT FOR THE ARREST
OF A PERSON CARRIES WITH IT AUTHORITY TO SEIZE ALL THAT IS ON THE
PERSON, OR IS IN SUCH OPEN AND IMMEDIATE PHYSICAL RELATION TO HIM AS TO
BE, IN A FAIR SENSE, A PROJECTION OF HIS PERSON.  THAT IS THE TEACHING
OF BOTH THE GO-BART AND THE LEFKOWITZ CASES, WHICH EFFECTUALLY RETRACT
WHATEVER MAY HAVE BEEN THE LOOSE CONSIDERATION OF THE PROBLEM IN MARRON
V. UNITED STATES, 275 U.S. 192.  THUS, THE GO-BART CASE EMPHASIZED THAT
THE THINGS SEIZED IN THE MARRON CASE WERE "VISIBLE AND ACCESSIBLE AND
IN THE OFFENDER'S IMMEDIATE CUSTODY."  282 U.S. 344, 358.  BY
"IMMEDIATE CUSTODY" WAS NOT MEANT THAT FIGURATIVE POSSESSION WHICH FOR
SOME LEGAL PURPOSES PUTS ONE IN "POSSESSION" OF EVERYTHING IN A HOUSE. 
THE SENTENCE FOLLOWING THAT JUST QUOTED EXCLUDES PRECISELY THE KIND OF
THING THAT WAS DONE HERE.  "THERE WAS NO THREAT OF FORCE OR GENERAL
SEARCH OR RUMMAGING OF THE PLACE."  IBID. 

IN OUR CASE, FIVE AGENTS CAME TO ARREST HARRIS ON A CHARGE OF
VIOLATING THE POSTAL LAWS AND THE NATIONAL STOLEN PROPERTY ACT.  THOUGH
THE ARREST WAS CONSUMMATED IN THE LIVING ROOM, THE AGENTS WERE TOLD TO
MAKE "A THOROUGH SEARCH" OF THE ENTIRE APARTMENT.  IN THE BEDROOM THEY
LIFTED THE CARPETS, STRIPPED THE BED-LINEN, TURNED OVER THE MATTRESS. 
THEY COMBED THE CONTENTS OF THE LINEN CLOSET AND EVEN LOOKED INTO
HARRIS' SHOES.  THE SELECTIVE SERVICE CARDS, THE ITEMS WHOSE SEIZURE IS
HERE IN CONTROVERSY, WERE DISCOVERED ONLY AFTER AGENTS TORE OPEN A
SEALED ENVELOPE LABELED "PERSONAL PAPERS" WHICH THEY HAD FOUND UNDER
SOME CLOTHES IN A DRAWER OF A SMALL BUREAU IN THE BEDROOM.  IF THERE
WAS NO "RUMMAGING OF THE PLACE" IN THIS CASE IT WOULD BE DIFFICULT TO
IMAGINE WHAT "RUMMAGING OF THE PLACE" MEANS.    AGAIN, IN THE LEFKOWITZ
CASE, THE MARRON CASE WAS CAREFULLY DEFINED AND LIMITED: 

"THERE, PROHIBITION OFFICERS LAWFULLY ON THE PREMISES SEARCHING FOR
LIQUOR DESCRIBED IN A SEARCH WARRANT, ARRESTED THE BARTENDER FOR CRIME
OPENLY BEING COMMITTED IN THEIR PRESENCE.  HE WAS MAINTAINING A
NUISANCE IN VIOLATION OF THE ACT.  THE OFFENSE INVOLVED THE ELEMENT OF
CONTINUITY, THE PURCHASE OF LIQUOR FROM TIME TO TIME, ITS SALE AS A
REGULAR THING FOR CONSUMPTION UPON THE PREMISES AND OTHER TRANSACTIONS
INCLUDING THE KEEPING OF ACCOUNTS.  THE LEDGER AND BILLS BEING IN PLAIN
VIEW WERE PICKED UP BY THE OFFICERS AS AN INCIDENT OF THE ARREST.  NO
SEARCH FOR THEM WAS MADE."  285 U.S. AT 465. 

SURELY NO COMPARABLE SITUATION IS NOW HERE.  THERE WAS NO SEARCH
WARRANT, NO CRIME WAS "OPENLY BEING COMMITTED" IN THE PRESENCE OF THE
OFFICERS, THE SEIZED DOCUMENTS WERE NOT "IN PLAIN VIEW" OR "PICKED UP
BY THE OFFICERS AS AN INCIDENT OF THE ARREST."  HERE A "THOROUGH
SEARCH" WAS MADE, AND MADE WITHOUT WARRANT. 

TO SAY THAT THE GO-BART AND THE LEFKOWITZ CASES - BOTH OF THEM
UNANIMOUS DECISIONS OF THE COURT - ARE AUTHORITY FOR THE CONDUCT OF THE
ARRESTING AGENTS IN THIS CASE IS TO FIND THAT SITUATIONS DECISIVELY
DIFFERENT ARE THE SAME. 

IT GREATLY UNDERRATES THE QUALITY OF THE AMERICAN PEOPLE AND OF THE
CIVILIZED STANDARDS TO WHICH THEY CAN BE SUMMONED TO SUGGEST THAT WE
MUST CONDUCT OUR CRIMINAL JUSTICE ON A LOWER LEVEL THAN DOES ENGLAND,
AND THAT OUR POLICE MUST BE GIVEN A HEAD WHICH BRITISH COURTS DENY
THEIRS.  A STRIKING AND CHARACTERISTIC EXAMPLE OF THE SOLICITOUS CARE
OF ENGLISH COURTS CONCERNING THE "LIBERTY OF THE SUBJECT" MAY BE FOUND
IN THE RECENT JUDGMENTS IN CHRISTIE V. LEACHINSKY.  IN THAT CASE THE
HOUSE OF LORDS UNANIMOUSLY RULED THAT IF A POLICEMAN ARRESTS WITHOUT
WARRANT, ALTHOUGH ENTERTAINING A REASONABLE SUSPICION OF FELONY WHICH
WOULD JUSTIFY ARREST, BUT DOES NOT INFORM THE PERSON OF THE NATURE OF
THE CHARGE, THE POLICE ARE LIABLE FOR FALSE IMPRISONMENT FOR SUCH
ARREST.  THESE JUDGMENTS BEAR MIGHTILY UPON THE CENTRAL PROBLEM OF THIS
CASE, NAMELY, THE APPROPRIATE BALANCING, IN THE WORDS OF LORD SIMONDS,
OF "THE LIBERTY OF THE SUBJECT AND THE CONVENIENCE OF THE POLICE." 
CHRISTIE V. LEACHINSKY, (1947) 1 ALL E.R. 567, 576.  FN7 

THE ENGLISH ATTITUDE WAS CLEARLY EVINCED ALSO IN THE FAMOUS SAVIDGE
CASE.  "BOTH THE ORIGINAL INCIDENT AND ITS SEQUEL ILLUSTRATE THE
SENSITIVENESS OF ENGLISH OPINION TO EVEN A SUGGESTION OF OPPRESSION BY
THE POLICE."  IV REPORTS OF THE NATIONAL COMMISSION ON LAW OBSERVANCE
AND ENFORCEMENT ("LAWLESSNESS IN LAW ENFORCEMENT") P. 261.  FOR "THE
HIGH STANDARDS OF CONDUCT EXACTED BY ENGLISHMEN OF THE POLICE" (ID. AT
259) SEE THE DEBATES IN THE HOUSE OF COMMONS, 217 HANS.  DEB. 
(COMMONS) COLS.  1303 ET SEQ. (MAY 17, 1928), AND 220 ID. COLS.  35 AND
805 ET SEQ. (JULY 20, 1928) AND THE REPORT OF THE TRIBUNAL OF INQUIRY
ON THE SAVIDGE CASE, CMD.  3147, 1928.  THERE ARE THOSE WHO SAY THAT WE
CANNOT HAVE SUCH HIGH STANDARDS OF CRIMINAL JUSTICE BECAUSE THE GENERAL
STANDARDS OF ENGLISH LIFE ENSURE GREATER OBEDIENCE TO LAW AND BETTER
LAW ENFORCEMENT.  I REJECT THIS NOTION, AND NOT THE LEAST BECAUSE I
THINK IT IS MORE ACCURATE TO SAY THAT THE ADMINISTRATION OF CRIMINAL
JUSTICE IS MORE EFFECTIVE IN ENGLAND BECAUSE LAW ENFORCEMENT IS THERE
PURSUED ON A MORE CIVILIZED LEVEL. 

OF COURSE, THIS MAY MEAN THAT IT MIGHT BE MORE DIFFICULT TO OBTAIN
EVIDENCE OF AN OFFENSE UNEXPECTEDLY UNCOVERED IN A LAWLESS SEARCH.  IT
MAY EVEN MEAN THAT SOME OFFENSES MAY GO UNWHIPPED OF THE LAW.  IF SO,
THAT IS PART OF THE COST FOR THE GREATER GAINS OF THE FOURTH
AMENDMENT.  THE WHOLE POINT ABOUT THE FOURTH AMENDMENT IS THAT "ITS
PROTECTION EXTENDS TO OFFENDERS AS WELL AS TO THE LAW ABIDING," BECAUSE
OF ITS IMPORTANT BEARING IN MAINTAINING A FREE SOCIETY AND AVOIDING THE
DANGERS OF A POLICE STATE.  UNITED STATES V. LEFKOWITZ, SUPRA AT 464. 
BUT THE IMPEDIMENTS OF THE FOURTH AMENDMENT TO EFFECTIVE LAW
ENFORCEMENT ARE GROSSLY EXAGGERATED.  DISREGARD OF PROCEDURES IMPOSED
UPON THE POLICE BY THE CONSTITUTION AND THE LAWS IS TOO OFTEN JUSTIFIED
ON THE SCORE OF NECESSITY.  THIS CASE IS A GOOD ILLUSTRATION HOW LAME
AN EXCUSE IT IS THAT CONDUCT SUCH AS IS NOW BEFORE US IS REQUIRED BY
THE EXIGENCIES OF LAW ENFORCEMENT.  HERE THERE WAS AMPLE OPPORTUNITY TO
SECURE THE AUTHORITY OF LAW TO MAKE THE SEARCH AND LATER AUTHORITY FROM
A MAGISTRATE TO SEIZE THE ARTICLES UNCOVERED IN THE COURSE OF THE
SEARCH.  TAYLOR V. UNITED STATES, 286 U.S. 1, 6; UNITED STATES V.
KAPLAN, 89 F.2D 869, 871.  THE HINDRANCES THAT ARE CONJURED UP ARE
COUNSELS OF DESPAIR WHICH DISREGARD THE EXPERIENCE OF EFFECTIVE LAW
ENFORCEMENT IN JURISDICTIONS WHERE THE POLICE ARE HELD TO STRICT
ACCOUNTABILITY AND ARE FORBIDDEN CONDUCT LIKE THAT HERE DISCLOSED. 

STOOPING TO QUESTIONABLE METHODS NEITHER ENHANCES THAT RESPECT FOR
LAW WHICH IS THE MOST POTENT ELEMENT IN LAW ENFORCEMENT, NOR, IN THE
LONG RUN, DO SUCH METHODS PROMOTE SUCCESSFUL PROSECUTION.  IN THIS
COUNTRY POLICE TESTIMONY IS OFTEN REJECTED BY JURIES PRECISELY BECAUSE
OF A WIDELY ENTERTAINED BELIEF THAT ILLEGAL METHODS ARE USED TO SECURE
TESTIMONY.  THUS, DUBIOUS POLICE METHODS DEFEAT THE VERY ENDS OF
JUSTICE BY WHICH SUCH METHODS ARE JUSTIFIED.  NO SUCH CLOUD RESTS ON
POLICE TESTIMONY IN ENGLAND.  RESPECT FOR LAW BY LAW OFFICERS PROMOTES
RESPECT GENERALLY, JUST AS LAWLESSNESS BY LAW OFFICERS SETS A
CONTAGIOUS AND COMPETITIVE EXAMPLE TO OTHERS.  SEE IV REPORTS OF THE
NATIONAL COMMISSION ON LAW ENFORCEMENT AND OBSERVANCE ("LAWLESSNESS IN
LAW ENFORCEMENT") PASSIM, ESPECIALLY PP. 190-92.  MOREOVER, BY
COMPELLING POLICE OFFICERS TO ABSTAIN FROM IMPROPER METHODS FOR
SECURING EVIDENCE, PRESSURE IS EXERTED UPON THEM TO BRING THE RESOURCES
OF INTELLIGENCE AND IMAGINATION INTO PLAY IN THE DETECTION AND
PROSECUTION OF CRIME. 

NO DOUBT THE FOURTH AMENDMENT LIMITS THE FREEDOM OF THE POLICE IN
BRINGING CRIMINALS TO JUSTICE.  BUT TO ALLOW THEM THE FREEDOM WHICH THE
FOURTH AMENDMENT WAS DESIGNED TO CURB WAS DEEMED TOO COSTLY BY THE
FOUNDERS.  AS MR. JUSTICE HOLMES SAID IN THE OLMSTEAD CASE, "WE MUST
CONSIDER THE TWO OBJECTS OF DESIRE, BOTH OF WHICH WE CANNOT HAVE, AND
MAKE UP OUR MINDS WHICH TO CHOOSE."  277 U.S. AT 470.  OF COURSE
ARRESTING OFFICERS GENERALLY FEEL IRKED BY WHAT TO THEM ARE TECHNICAL
LEGAL RESTRICTIONS.  BUT THEY MUST NOT BE ALLOWED TO BE UNMINDFUL OF
THE FACT THAT SUCH RESTRICTIONS ARE ESSENTIAL SAFEGUARDS OF A FREE
PEOPLE.  TO SANCTION CONDUCT SUCH AS THIS CASE REVEALS IS TO ENCOURAGE
POLICE INTRUSIONS UPON PRIVACY, WITHOUT LEGAL WARRANT, IN SITUATIONS
THAT GO EVEN BEYOND THE FACTS OF THE PRESENT CASE.  IF IT BE SAID THAT
AN ATTEMPT TO EXTEND THE PRESENT CASE MAY BE CURBED IN SUBSEQUENT
LITIGATION, IT IS IMPORTANT TO REMEMBER THAT POLICE CONDUCT IS NOT
OFTEN SUBJECTED TO JUDICIAL SCRUTINY.  DAY BY DAY MISCHIEF MAY BE DONE
AND PRECEDENTS BUILT UP IN PRACTICE LONG BEFORE THE JUDICIARY HAS AN
OPPORTUNITY TO INTERVENE.  IT IS FOR THIS REASON - THE DANGEROUS
TENDENCY OF ALLOWING ENCROACHMENTS ON THE RIGHTS OF PRIVACY - THAT THIS
COURT IN THE BOYD CASE GAVE TO THE FOURTH AMENDMENT ITS WIDE PROTECTIVE
SCOPE. 

IT IS VITAL, NO DOUBT, THAT CRIMINALS SHOULD BE DETECTED, AND THAT
ALL RELEVANT EVIDENCE SHOULD BE SECURED AND USED.  ON THE OTHER HAND,
IT CANNOT BE SAID TOO OFTEN THAT WHAT IS INVOLVED FAR TRANSCENDS THE
FATE OF SOME SORDID OFFENDER.  NOTHING LESS IS INVOLVED THAN THAT WHICH
MAKES FOR AN ATMOSPHERE OF FREEDOM AS AGAINST A FEELING OF FEAR AND
REPRESSION FOR SOCIETY AS A WHOLE.  THE DANGERS ARE NOT FANCIFUL.  WE
TOO READILY FORGET THEM.  RECOLLECTION MAY BE REFRESHED AS TO THE
HAPPENINGS AFTER THE FIRST WORLD WAR BY THE "REPORT UPON THE ILLEGAL
PRACTICES OF THE UNITED STATES DEPARTMENT OF JUSTICE," WHICH AROUSED
THE PUBLIC CONCERN OF CHIEF JUSTICE HUGHES  FN8 (THEN AT THE BAR), AND
BY THE LITTLE BOOK ENTITLED "THE DEPORTATIONS DELIRIUM OF NINETEEN
TWENTY" BY LOUIS F. POST, WHO SPOKE WITH THE AUTHORITATIVE KNOWLEDGE OF
AN ASSISTANT SECRETARY OF LABOR. 

MORE THAN TWENTY YEARS AGO, BEFORE DEMOCRACY WAS SUBJECTED TO ITS
RECENT STRESS AND STRAIN, JUDGE LEARNED HAND, IN A DECISION APPROVED BY
THIS COURT IN THE LEFKOWITZ CASE, EXPRESSED VIEWS THAT SEEM TO ME
DECISIVE OF THIS CASE: 

"AFTER ARRESTING A MAN IN HIS HOUSE, TO RUMMAGE AT WILL AMONG HIS
PAPERS IN SEARCH OF WHATEVER WILL CONVICT HIM, APPEARS TO US TO BE
INDISTINGUISHABLE FROM WHAT MIGHT BE DONE UNDER A GENERAL WARRANT;
INDEED, THE WARRANT WOULD GIVE MORE PROTECTION, FOR PRESUMABLY IT MUST
BE ISSUED BY A MAGISTRATE.  TRUE, BY HYPOTHESIS THE POWER WOULD NOT
EXIST, IF THE SUPPOSED OFFENDER WERE NOT FOUND ON THE PREMISES; BUT IT
IS SMALL CONSOLATION TO KNOW THAT ONE'S PAPERS ARE SAFE ONLY SO LONG AS
ONE IS NOT AT HOME.  SUCH CONSTITUTIONAL LIMITATIONS ARISE FROM
GRIEVANCES, REAL OR FANCIED, WHICH THEIR MAKERS HAVE SUFFERED, AND
SHOULD GO PARI PASSU WITH THE SUPPOSED EVIL.  THEY WITHSTAND THE WINDS
OF LOGIC BY THE DEPTH AND TOUGHNESS OF THEIR ROOTS IN THE PAST.  NOR
SHOULD WE FORGET THAT WHAT SEEMS FAIR ENOUGH AGAINST A SQUALID HUCKSTER
OF BAD LIQUOR MAY TAKE ON A VERY DIFFERENT FACE, IF USED BY A
GOVERNMENT DETERMINED TO SUPPRESS POLITICAL OPPOSITION UNDER THE GUISE
OF SEDITION."  UNITED STATES V. KIRSCHENBLATT, 16 F.2D 202, 203. 

FN1  "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

FN2  WHILE THIS CASE PRESENTS A SITUATION NOT INVOLVED IN THE DAVIS
CASE, OR IN ZAP V. UNITED STATES, 328 U.S. 624, SO THAT THE COURT'S
CONCLUSION CANNOT REST ON THOSE CASES, IT IS APPROPRIATE TO NOTE THAT
NEITHER OF THOSE CASES CARRIES THE AUTHORITY OF A MAJORITY OF THE
COURT.  ASIDE FROM THE FACT THAT A CONSTITUTIONAL ADJUDICATION OF
RECENT VINTAGE AND BY A DIVIDED COURT MAY ALWAYS BE RECONSIDERED, I AM
LOATH TO BELIEVE THAT THESE DECISIONS BY LESS THAN A MAJORITY OF THE
COURT ARE THE LAST WORD ON ISSUES OF SUCH FAR-REACHING IMPORTANCE TO
CONSTITUTIONAL LIBERTIES. 

FN3  FOR REPORTS OF OTIS' FAMOUS ARGUMENT, SEE 2 ADAMS, WORKS PP. 523
25; TUDOR, LIFE OF JAMES OTIS, C. VI; QUINCY'S MASSACHUSETTS REPORTS
PP. 471 ET SEQ. (SEE ALSO PP. 51-55); AMERICAN HISTORY LEAFLETS, NO.
33.  AND SEE THE TRIBUTE OF JOHN ADAMS TO OTIS, SAMUEL ADAMS, AND
HANCOCK IN 8 OLD SOUTH LEAFLETS P. 57(NO. 179). 

"THE SEIZURE OF THE PAPERS OF ALGERNON SIDNEY, WHICH WERE MADE USE OF
AS THE MEANS OF CONVICTING HIM OF TREASON, AND OF THOSE OF WILKES ABOUT
THE TIME THAT THE CONTROVERSY BETWEEN GREAT BRITAIN AND THE AMERICAN
COLONIES WAS ASSUMING THREATENING PROPORTIONS, WAS PROBABLY THE
IMMEDIATE OCCASION FOR THIS CONSTITUTIONAL PROVISION.  SEE LEACH V.
MONEY, BURR.  1742; S.C., 1 W. BL. 555, 19 STATE TRIALS, 1001, AND
BROOM, CONST. LAW, 525; ENTICK V. CARRINGTON, 2 WILS.  275; S.C., 19
STATE TRIALS, 1030, AND BROOM, CONST. LAW, 558; MAY, CONST. HIST., CH.
10; TRIAL OF ALGERNON SIDNEY, 9 STATE TRIALS, 817."  COOLEY, PRINCIPLES
OF CONSTITUTIONAL LAW (1ST ED.)  212, N. 2. 

FN4  COMPARE THE ANSWERS TO CERTIFIED QUESTIONS GIVEN BY THIS COURT
IN GOULED V. UNITED STATES, 255 U.S. 298, WITH THE FORECAST MADE BY A
STUDENT OF THE SUBJECT OF KNOWN PARTIALITY IN FAVOR OF CIVIL
LIBERTIES.  FRAENKEL, CONCERNING SEARCHES AND SEIZURES, 34 HARV. L.
REV. 361, 385-87.  AS POINTED OUT BY PROFESSOR ZECHARIAH CHAFEE, JR.,
IN EACH INSTANCE WHERE THE GOULED CASE DIFFERS FROM MR. FRAENKEL'S
FORECAST, "THE COURT GAVE INCREASED FORCE TO THE CONSTITUTIONAL
GUARANTEE."  CHAFEE, THE PROGRESS OF THE LAW 1919-1922, 35 HARV. L.
REV. 673, 699. 

FN5  IT IS NOT WITHOUT INTEREST TO NOTE THE FIRST APPEARANCE OF
PROVISIONS DEALING WITH SEARCH AND SEIZURE IN STATE CONSTITUTIONS:
ALABAMA:  I, 9(1819); ARIZONA:  II, 8(1911); ARKANSAS:  II, 9(1836);
CALIFORNIA:  I, 19(1849); COLORADO: II, 7(1876); CONNECTICUT:  I,
8(1818); DELAWARE:  I, 6(1792); FLORIDA:  I, 7(1838); GEORGIA:  I,
18(1865); IDAHO:  I, 17(1889); ILLINOIS:  VIII, 7(1818); INDIANA:  I,
8(1816); IOWA:  I, 8(1846); KANSAS:  I, 14(1855); KENTUCKY:  XII
(1792); LOUISIANA: TIT. VII, ART. 108(1864); MAINE:  I, 5(1819);
MARYLAND:  DECL.  OF RIGHTS, XXIII (1776); MASSACHUSETTS:  PART THE
FIRST, ART. XIV (1780); MICHIGAN:  I, 8(1835); MINNESOTA:  I, 10(1857);
MISSISSIPPI:  I, 9(1817); MISSOURI:  XIII, 13(1820); MONTANA:  III,
7(1889); NEBRASKA: I, 7(1875); NEVADA:  I, 18(1864); NEW HAMPSHIRE:  I,
XIX (1784); NEW JERSEY:  I, 6(1844); NEW MEXICO:  II, 10(1910); NORTH
CAROLINA:  DECL.  OF RIGHTS, XI (1776); NORTH DAKOTA:  I, 18(1889);
OHIO:  VIII, 5(1802); OKLAHOMA:  II, 30(1907); OREGON:  I, 9(1857);
PENNSYLVANIA:  DECL.  OF RIGHTS, X (1776); RHODE ISLAND:  I, 6(1842);
SOUTH CAROLINA:  I, 22(1868); SOUTH DAKOTA:  VI, 11(1889); TENNESSEE:
XI, 7(1796); TEXAS:  DECL.  OF RIGHTS, 5(1836), I, 7(1845); UTAH:  I,
14(1895); VERMONT:  C. I, XI (1777); VIRGINIA:  BILL OF RIGHTS,
10(1776); WASHINGTON:  I, 7(1889); WEST VIRGINIA:  II, 3(1861-63);
WISCONSIN:  I, 11(1848); WYOMING:  I, 4(1889).    FN6  "THE REQUIREMENT
THAT WARRANTS SHALL PARTICULARLY DESCRIBE THE THINGS TO BE SEIZED MAKES
GENERAL SEARCHES UNDER THEM IMPOSSIBLE AND PREVENTS THE SEIZURE OF ONE
THING UNDER A WARRANT DESCRIBING ANOTHER.  AS TO WHAT IS TO BE TAKEN,
NOTHING IS LEFT TO THE DISCRETION OF THE OFFICER EXECUTING THE
WARRANT." 

FN7  THE EXTENT TO WHICH SUCH SUBORDINATION OF THE POLICE TO LAW
FINDS SUPPORT IN INFORMED ENGLISH OPINION IS REFLECTED BY THE COMMENTS
OF THE SOLICITORS' JOURNAL.  AFTER NOTING THAT, IN THE VIEW OF LORD
SIMON, "ANY OTHER GENERAL RULE WOULD BE CONTRARY TO OUR CONCEPTION OF
INDIVIDUAL LIBERTY, THOUGH IT MIGHT BE TOLERATED IN THE TIME OF THE
LETTRES DE CACHET IN THE EIGHTEENTH CENTURY IN FRANCE OR UNDER THE
GESTAPO," THE JOURNAL OBSERVES: "THE IMPORTANCE OF THE REAFFIRMATION OF
THIS PRINCIPLE CANNOT BE EXAGGERATED.  THE POWERS OF PRIVATE PERSONS TO
ARREST WHERE A FELONY HAS BEEN COMMITTED AND THERE IS REASONABLE GROUND
FOR THINKING THAT THE PERSON DETAINED HAS COMMITTED IT ARE IMPORTANT
NOW THAT CRIMES OF VIOLENCE ARE MORE NUMEROUS, AND THE STATUTORY POWERS
OF ARREST WITHOUT WARRANT UNDER, E.G., THE MALICIOUS DAMAGE ACT, 1861,
THE LARCENY ACT, 1916, THE CURTIS ACT OF 1876, AND MANY OTHER ACTS ARE
MORE USED THAN IS GENERALLY APPRECIATED.  OF NO LESS IMPORTANCE IN SUCH
TIMES AS THESE IS THE ASSERTION OF OUR INDIVIDUAL LIBERTIES TO
COUNTERACT ANY TENDENCY WHICH MAY APPEAR FOR POLICE POWERS TO BE
EXCEEDED."  91 SOLICITORS' JOURNAL 184-85(APRIL 12, 1947). 

FN8  ADDRESS, HARVARD LAW SCHOOL ASSOCIATION, JUNE 21, 1920, SOME
OBSERVATIONS ON LEGAL EDUCATION AND DEMOCRATIC PROGRESS, P. 23:  "WE
CANNOT AFFORD TO IGNORE THE INDICATIONS THAT, PERHAPS TO AN EXTENT
UNPARALLELED IN OUR HISTORY, THE ESSENTIALS OF LIBERTY ARE BEING
DISREGARDED.  VERY RECENTLY INFORMATION HAS BEEN LAID BY RESPONSIBLE
CITIZENS AT THE BAR OF PUBLIC OPINION OF VIOLATIONS OF PERSONAL RIGHTS
WHICH SAVOR OF THE WORST PRACTICES OF TYRANNY." 

FOR A CONTEMPORANEOUS JUDICIAL ACCOUNT OF SEARCHES AND SEIZURES IN
VIOLATION OF THE FOURTH AMENDMENT IN CONNECTION WITH THE COMMUNIST
RAIDS OF JANUARY 2, 1920, SEE JUDGE GEORGE W. ANDERSON'S OPINION IN
COLYER V. SKEFFINGTON, 265 F. 17. 

          APPENDIX

                           (CHART OMITTED) 

MR. JUSTICE MURPHY, DISSENTING. 

THE COURT TODAY HAS RESURRECTED AND APPROVED, IN EFFECT, THE USE OF
THE ODIOUS GENERAL WARRANT OR WRIT OF ASSISTANCE, PRESUMABLY OUTLAWED
FOREVER FROM OUR SOCIETY BY THE FOURTH AMENDMENT.  A WARRANT OF ARREST,
WITHOUT MORE, IS NOW SUFFICIENT TO JUSTIFY AN UNLIMITED SEARCH OF A
MAN'S HOME FROM CELLAR TO GARRET FOR EVIDENCE OF ANY CRIME, PROVIDED
ONLY THAT HE IS ARRESTED IN HIS HOME.  PROBABLE CAUSE FOR THE SEARCH
NEED NOT BE SHOWN; AN OATH OR AFFIRMATION IS UNNECESSARY; NO
DESCRIPTION OF THE PLACE TO BE SEARCHED OR THE THINGS TO BE SEIZED NEED
BE GIVEN; AND THE MAGISTRATE'S JUDGMENT THAT THESE REQUIREMENTS HAVE
BEEN SATISFIED IS NOW DISPENSED WITH.  IN SHORT, ALL THE RESTRICTIONS
PUT UPON THE ISSUANCE AND EXECUTION OF SEARCH WARRANTS BY THE FOURTH
AMENDMENT ARE NOW DEAD LETTERS AS TO THOSE WHO ARE ARRESTED IN THEIR
HOMES. 

THAT THIS DECISION CONVERTS A WARRANT FOR ARREST INTO A GENERAL
SEARCH WARRANT LACKING ALL THE CONSTITUTIONAL SAFEGUARDS IS
DEMONSTRATED MOST PLAINLY BY THE FACTS.  TWO VALID WARRANTS WERE ISSUED
FOR THE ARREST OF PETITIONER AND ONE C. R. MOFFETT.  THE FIRST WARRANT
CHARGED THEM WITH A VIOLATION OF THE MAIL FRAUD STATUTE, SEC. 215 OF
THE CRIMINAL CODE; IT WAS ALLEGED THAT THEY SENT A LETTER THROUGH THE
MAILS IN CONNECTION WITH THE EXECUTION OF A SCHEME TO DEFRAUD BY
NEGOTIATING AND CASHING A FORGED CHECK DRAWN ON THE MUDGE OIL CO. IN
THE SUM OF $25,000.  THE SECOND WARRANT CHARGED THAT THEY CAUSED THE
SAME CHECK TO BE TRANSPORTED IN INTERSTATE COMMERCE IN VIOLATION OF
SEC. 3 OF THE NATIONAL STOLEN PROPERTY ACT. 

TWO AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION WENT TO
PETITIONER'S APARTMENT, ARMED WITH THESE WARRANTS FOR ARREST. 
PETITIONER WAS PLACED UNDER ARREST IN THE LIVING ROOM OF HIS APARTMENT
AND WAS SAFELY HANDCUFFED.  THE AGENTS, TOGETHER WITH THREE OTHERS WHO
HAD ARRIVED IN THE MEANTIME, THEN BEGAN A SYSTEMATIC RANSACKING OF THE
APARTMENT.  OPERATING WITHOUT THE BENEFIT OF A SEARCH WARRANT, THEY
MADE A SEARCH WHICH THEY ADMITTED WAS "AS THOROUGH AS WE COULD MAKE
IT."  FOR FIVE HOURS THEY LITERALLY TORE THE PLACE APART FROM TOP TO
BOTTOM, GOING THROUGH ALL OF PETITIONER'S CLOTHES AND PERSONAL
BELONGINGS, LOOKING UNDERNEATH THE CARPETS, TURNING THE BED UPSIDE
DOWN, SEARCHING THROUGH ALL THE BED LINEN, OPENING ALL THE CHEST AND
BUREAU DRAWERS, AND EXAMINING ALL PERSONAL PAPERS AND EFFECTS.  NOTHING
WAS LEFT UNTOUCHED OR UNOPENED. 

THE AGENTS TESTIFIED THAT THEY WERE SEARCHING FOR "TWO $10,000
CANCELED CHECKS OF THE MUDGE OIL COMPANY WHICH OUR INVESTIGATION
ESTABLISHED HAD BEEN STOLEN FROM THE OFFICES OF THE MUDGE OIL COMPANY"
AND WHICH MIGHT HAVE BEEN USED IN CONNECTION WITH FORGING THE $25,000
CHECK IN ISSUE.  IT WAS ALSO ADMITTED THAT THEY WERE SEARCHING "FOR ANY
MEANS THAT MIGHT HAVE BEEN USED TO COMMIT THESE TWO CRIMES (CHARGED IN
THE WARRANTS FOR ARREST), SUCH AS BURGLAR TOOLS, PENS, OR ANYTHING THAT
COULD BE USED IN A CONFIDENCE GAME OF THIS TYPE"; "WE THOUGHT WE MIGHT
FIND A PHOTOSTATIC COPY (OF THE $25,000 CHECK)"; "ANYTHING WHICH WOULD
INDICATE A VIOLATION OF THE MAIL FRAUD STATUTE AND THE NATIONAL STOLEN
PROPERTY ACT"; "ANYTHING YOU COULD FIND IN CONNECTION WITH THE
VIOLATION OF THE LAW FOR WHICH HE (PETITIONER) WAS THEN ARRESTED."  ONE
OF THEM ALSO ADMITTED THAT THEY WERE "SEARCHING FOR GOODS, WARES,
MERCHANDISE, ARTICLES, OR ANYTHING IN CONNECTION WITH THE USE OF THE
MAILS TO DEFRAUD, AND ALSO IN CONNECTION WITH THE VIOLATION OF SECTION
415 OF TITLE 18." 

SUFFICE IT TO SAY THAT THEY FOUND NO CHECKS.  THE AGENTS ADMITTED
SEIZING SEVEN PENS, TISSUE PAPER AND TWENTY-SEVEN PIECES OF CELLULOID,
THE LATTER BEING FOUND WRAPPED IN A TOWEL IN A DRAWER OF THE BEDROOM
DRESSER.  PETITIONER CHARGES, AND IT IS UNDENIED, THAT THE AGENTS ALSO
SEIZED BLANK STATIONERY OF VARIOUS HOTELS, BLANK RULED SHEETS OF PAPER,
SEVERAL OBSOLETE FOUNTAIN PENS, EXPENSE BILLS AND RECEIPTS, PERSONAL
LETTERS, A BILL OF SALE FOR PETITIONER'S AUTOMOBILE, NOTE BOOKS,
ADDRESS BOOKS AND SOME MINERAL DEEDS. 

MOST SIGNIFICANT OF ALL, HOWEVER, WAS THE UNEXPECTED DISCOVERY AND
SEIZURE, AT THE END OF THIS LONG SEARCH, OF A SEALED ENVELOPE MARKED
"GEORGE HARRIS, PERSONAL PAPERS."  THIS ENVELOPE, WHICH WAS FOUND IN A
DRESSER DRAWER BENEATH SOME CLOTHES, CONTAINED ELEVEN DRAFT
REGISTRATION CERTIFICATES AND EIGHT NOTICES OF DRAFT CLASSIFICATION. 
PETITIONER WAS THEN CHARGED WITH THE UNLAWFUL POSSESSION, CONCEALMENT
AND ALTERATION OF THESE CERTIFICATES AND NOTICES AND FOUND GUILTY. 
NOTHING HAS EVER DEVELOPED AS TO THE FORGED $25,000 CHECK, WHICH WAS
THE BASIS OF PETITIONER'S ORIGINAL ARREST.  NO EVIDENCE OF THE CRIMES
CHARGED IN THE WARRANTS FOR ARREST HAS BEEN FOUND; NO PROSECUTION OF
PETITIONER FOR THOSE CRIMES HAS DEVELOPED. 

IT IS SIGNIFICANT THAT THE CRIME WHICH WAS THUS UNEXPECTEDLY
DISCOVERED - NAMELY, THE ILLEGAL POSSESSION OF THE DRAFT CERTIFICATES
AND NOTICES - COULD NOT HAVE BEEN BROUGHT TO LIGHT IN THIS CASE THROUGH
THE USE OF ORDINARY CONSTITUTIONAL PROCESSES.  THERE WAS NO PRIMA FACIE
EVIDENCE TO SUPPORT THE ISSUANCE OF A WARRANT FOR PETITIONER'S ARREST
FOR THE CRIME OF POSSESSING THESE ITEMS.  NOR WAS THERE ANY PROBABLE
CAUSE OR ANY BASIS FOR AN OATH OR AFFIRMATION WHICH COULD JUSTIFY A
VALID SEARCH WARRANT FOR THESE ITEMS.  THEIR PRESENCE IN PETITIONER'S
APARTMENT COULD BE DISCOVERED ONLY BY MAKING AN UNLIMITED SEARCH FOR
ANYTHING AND EVERYTHING THAT MIGHT BE FOUND, A SEARCH OF THE TYPE THAT
CHARACTERIZES A GENERAL SEARCH WARRANT OR WRIT OF ASSISTANCE.  AND IT
WAS PRECISELY THAT TYPE OF SEARCH THAT TOOK PLACE IN THIS CASE. 

THE COURT HOLDS, HOWEVER, THAT THE SEARCH WAS JUSTIFIED AS AN
INCIDENT TO PETITIONER'S LAWFUL ARREST ON THE MAIL FRAUD AND STOLEN
PROPERTY CHARGES.  IT IS SAID THAT LAW ENFORCEMENT OFFICERS HAVE THE
RIGHT, WHEN MAKING A VALID ARREST, TO SEARCH THE PLACE AND TO SEIZE THE
FRUITS AND INSTRUMENTALITIES OF THE CRIME FOR WHICH THE ARREST WAS
MADE.  AND SINCE THE SEARCH HERE WAS MADE, AT LEAST IN PART, TO FIND
THE INSTRUMENTALITIES OF THE ALLEGED CRIMES, THE SEARCH WAS VALID AND
PETITIONER CANNOT BE HEARD TO COMPLAIN OF WHAT WAS FOUND DURING THE
COURSE OF THAT SEARCH.  THIS CONCLUSION BEARS FURTHER ANALYSIS,
HOWEVER. 

IT IS UNDOUBTEDLY TRUE THAT LIMITED SEIZURES MAY BE MADE WITHOUT THE
BENEFIT OF SEARCH WARRANTS UNDER CERTAIN CIRCUMSTANCES WHERE A PERSON
HAS BEEN ARRESTED IN HIS HOME.  DUE ACCOMMODATION MUST BE MADE FOR THE
NECESSARY PROCESSES OF LAW ENFORCEMENT.  SEIZURE MAY BE MADE OF
ARTICLES AND PAPERS ON THE PERSON OF THE ONE ARRESTED.  AND THE
ARRESTING OFFICER IS FREE TO LOOK AROUND AND SEIZE THOSE FRUITS AND
EVIDENCES OF CRIME WHICH ARE IN PLAIN SIGHT AND IN HIS IMMEDIATE AND
DISCERNIBLE PRESENCE.  WEEKS V. UNITED STATES, 232 U.S. 383, 392;
AGNELLO V. UNITED STATES, 269 U.S. 20, 30.  BUT WHERE NO PROPERLY
LIMITED SEARCH WARRANT HAS BEEN ISSUED, THIS COURT HAS BEEN
SCRUPULOUSLY INSISTENT ON CONFINING VERY NARROWLY THE SCOPE OF SEARCH
AND SEIZURE.  THE MERE FACT THAT A MAN HAS BEEN VALIDLY ARRESTED DOES
NOT GIVE THE ARRESTING OFFICERS UNTRAMMELED FREEDOM TO SEARCH EVERY
CRANNY AND NOOK FOR ANYTHING THAT MIGHT HAVE SOME RELATION TO THE
ALLEGED CRIME OR, INDEED, TO ANY CRIME WHATSOEVER.  AUTHORITY TO
ARREST, IN OTHER WORDS, GIVES NO AUTHORITY WHATEVER TO SEARCH THE
PREMISES WHERE THE ARREST OCCURS AND NO AUTHORITY TO SEIZE EXCEPT UNDER
THE MOST RESTRICTED CIRCUMSTANCES. 

ILLUSTRATIVE OF THE STRICT LIMITATIONS WHICH THIS COURT HAS PLACED
UPON SEARCHES AND SEIZURES WITHOUT A WARRANT IN CONNECTION WITH A
LAWFUL ARREST ARE THE THREE CASES OF MARRON V. UNITED STATES, 275 U.S.
192; GO-BART CO. V. UNITED STATES, 282 U.S. 344, AND UNITED STATES V.
LEFKOWITZ, 285 U.S. 452.  IN THE MARRON CASE, AN INDIVIDUAL WAS
ARRESTED WHILE ACTUALLY ENGAGED IN RUNNING AN ILLEGAL SALOON IN
PURSUANCE OF A CONSPIRACY; A PROHIBITION AGENT SECURED A WARRANT FOR A
SEARCH OF THE PREMISES AND FOR THE SEIZURE OF INTOXICATING LIQUORS AND
ARTICLES FOR THEIR MANUFACTURE.  LIQUOR WAS FOUND IN A CLOSET.  WHILE
SEARCHING IN THE CLOSET, THE AGENTS NOTICED A LEDGER SHOWING
INVENTORIES OF LIQUOR AND RECEIPTS RELATING TO THE BUSINESS.  ALONGSIDE
THE CASH REGISTER THEY FOUND BILLS FOR UTILITIES FURNISHED TO THE
PREMISES.  THEY TOOK THE LEDGER AND THE BILLS.  THIS COURT HELD THAT
WHILE THE SEIZURE OF THE LEDGER AND BILLS COULD NOT BE JUSTIFIED UNDER
THE SEARCH WARRANT, BECAUSE NOT MENTIONED THEREIN, THEIR SEIZURE WAS
PROPER AS AN INCIDENT TO THE ARREST INASMUCH AS THEY WERE NECESSARY TO
THE CARRYING ON OF THE ILLEGAL BUSINESS. 

THE MARRON CASE AT FIRST WAS WIDELY MISUNDERSTOOD AS HAVING HELD THAT
MOST OF THE RESTRICTIONS HAD BEEN REMOVED ON SEARCHES OF PREMISES
INCIDENT TO ARRESTS.  UNITED STATES V. GOWEN, 40 F.2D 593; UNITED
STATES V. POLLER, 43 F.2D 911.  THIS MISUNDERSTANDING WAS REMOVED BY
THE GO-BART CASE, WHICH MADE IT CLEAR THAT THE ITEMS SEIZED IN THE
MARRON CASE WERE VISIBLE AND ACCESSIBLE AND IN THE OFFENDER'S IMMEDIATE
CUSTODY; IT WAS FURTHER POINTED OUT THAT THERE WAS NO THREAT OF FORCE
OR GENERAL SEARCH OR RUMMAGING OF THE PLACE IN THE MARRON CASE.  THE
INHERENT LIMITATIONS OF THE MARRON HOLDING WERE DEMONSTRATED BY THE
FACTS AND DECISION IN THE GO-BART CASE.  THERE THE DEFENDANT BARTELS
WAS PLACED UNDER LAWFUL ARREST IN HIS OFFICE ON A CHARGE OF CONSPIRACY
TO SELL INTOXICATING LIQUORS.  GOWEN, THE OTHER DEFENDANT, ARRIVED AND
HE ALSO WAS PLACED UNDER LAWFUL ARREST.  GOWEN WAS THEN FORCED TO OPEN
A DESK AND A SAFE, WHICH WERE SEARCHED BY THE AGENTS ALONG WITH OTHER
PARTS OF THE OFFICE.  A LARGE QUANTITY OF PAPERS BELONGING TO THE
DEFENDANTS WAS SEIZED.  THIS COURT HELD THAT SUCH A SEIZURE WAS
UNCONSTITUTIONAL, THE SEARCH BEING GENERAL AND UNLIMITED IN SCOPE AND
BEING UNDERTAKEN IN THE HOPE THAT EVIDENCE OF THE CRIME MIGHT BE
FOUND. 

IN THE LEFKOWITZ CASE, THE DEFENDANTS WERE PLACED UNDER LAWFUL ARREST
IN THEIR OFFICE ON A CHARGE OF CONSPIRACY TO VIOLATE THE LIQUOR LAWS. 
THE ARRESTING OFFICERS THEN PROCEEDED TO SEARCH THE DESKS, THE TOWEL
CABINET AND THE WASTE BASKETS, SEIZING VARIOUS BOOKS, PAPERS AND OTHER
ARTICLES.  ALL OF THIS WAS DONE WITHOUT A SEARCH WARRANT.  ONCE AGAIN
THE COURT HELD THAT THE CONSTITUTION HAD BEEN VIOLATED.  IT WAS POINTED
OUT THAT THE SEARCHES WERE EXPLORATORY AND GENERAL AND MADE SOLELY TO
FIND EVIDENCE OF THE DEFENDANT'S GUILT OF THE ALLEGED CONSPIRACY OR
SOME OTHER CRIME; THE PAPERS AND OTHER ARTICLES SEIZED WERE UNOFFENDING
IN THEMSELVES. 

TESTED IN THE LIGHT OF THE FOREGOING PRINCIPLES AND DECISIONS, THE
SEARCH IN THE INSTANT CASE CANNOT BE JUSTIFIED.  EVEN MORE GLARING THAN
THE SEARCHES IN THE GO-BART AND LEFKOWITZ CASES, THE SEARCH HERE WAS A
GENERAL EXPLORATORY ONE UNDERTAKEN IN THE HOPE THAT EVIDENCE OF SOME
CRIME MIGHT BE UNCOVERED.  THE AGENTS WERE SEARCHING FOR MORE THAN THE
FRUITS AND INSTRUMENTALITIES OF THE CRIMES FOR WHICH THE ARREST WAS
MADE.  BY THEIR OWN REPEATED TESTIMONY, THEY WERE SEARCHING FOR
"ANYTHING" IN CONNECTION WITH THE ALLEGED CRIMES, FOR "ANYTHING" THAT
WOULD INDICATE A VIOLATION OF THE LAWS IN QUESTION.  AND THEIR SEIZURE
OF THE DRAFT CERTIFICATES AND NOTICES DEMONSTRATES THAT THEY WERE ALSO
ON THE LOOKOUT FOR EVIDENCE OF ANY OTHER CRIME.  IN THE ABSENCE OF A
VALID WARRANT, SUCH AN UNLIMITED, RANSACKING SEARCH FOR "ANYTHING" THAT
MIGHT TURN UP HAS BEEN CONDEMNED BY THIS COURT IN CONSTITUTIONAL TERMS
TIME AND TIME AGAIN.  NOTHING IN ANY OF THE PREVIOUS DECISIONS OF THIS
COURT EVEN REMOTELY APPROVES OR JUSTIFIES THIS TYPE OF SEARCH AS AN
INCIDENT TO A VALID ARREST; IN THIS RESPECT, TODAY'S DECISION FLATLY
CONTRADICTS AND, IN EFFECT, OVERRULES THE GO-BART AND LEFKOWITZ CASES. 
MOREOVER, EVEN IF WE ASSUME THAT THE AGENTS WERE MERELY LOOKING FOR
THE FRUITS AND INSTRUMENTALITIES OF THE CRIMES FOR WHICH THE ARREST WAS
MADE, THE CONSTITUTION HAS BEEN VIOLATED.  THERE ARE OFTEN MINUTE
OBJECTS CONNECTED WITH THE COMMISSION OF A CRIME, OBJECTS THAT CAN BE
HIDDEN IN A SMALL RECESS OF A HOME OR APARTMENT AND THAT CAN BE
DISCOVERED ONLY BY A THOROUGH, RANSACKING SEARCH.  WHERE THE DISCOVERY
OF SUCH OBJECTS REQUIRES AN INVASION OF PRIVACY TO THE EXTENT EVIDENT
IN THIS CASE, THE DANGERS INHERENT IN SUCH AN INVASION WITHOUT A
WARRANT FAR OUTWEIGH ANY POLICY UNDERLYING THIS METHOD OF CRIME
DETECTION.  A SEARCH OF THAT SCOPE INEVITABLY BECOMES, AS IT HAS IN
THIS CASE, A GENERAL EXPLORATORY SEARCH FOR "ANYTHING" IN CONNECTION
WITH THE ALLEGED CRIME OR ANY OTHER CRIME - A TYPE OF SEARCH WHICH IS
MOST ROUNDLY CONDEMNED BY THE CONSTITUTION. 

THUS WHEN A SEARCH OF THIS NATURE DEGENERATES INTO A GENERAL
EXPLORATORY CRUSADE, PROBING FOR ANYTHING AND EVERYTHING THAT MIGHT
EVIDENCE THE COMMISSION OF A CRIME, THE CONSTITUTION STEPS INTO THE
PICTURE TO PROTECT THE INDIVIDUAL.  IF IT BECOMES EVIDENT THAT NOTHING
CAN BE FOUND WITHOUT A METICULOUS UPROOTING OF A MAN'S HOME, IT IS TIME
FOR THE LAW ENFORCEMENT OFFICERS TO SECURE A WARRANT.  AND IF SUCH A
SEARCH HAS ANY REASONABLENESS AT ALL, IT IS A REASONABLENESS THAT MUST
BE DETERMINED THROUGH THE INFORMED AND DELIBERATE JUDGMENT OF A
MAGISTRATE.  "SECURITY AGAINST UNLAWFUL SEARCHES IS MORE LIKELY TO BE
ATTAINED BY RESORT TO SEARCH WARRANTS THAN BY RELIANCE UPON THE CAUTION
AND SAGACITY OF PETTY OFFICERS WHILE ACTING UNDER THE EXCITEMENT THAT
ATTENDS THE CAPTURE OF PERSONS ACCUSED OF CRIME."  UNITED STATES V.
LEFKOWITZ, SUPRA, 464. 

TO INSIST UPON A SEARCH WARRANT IN THE CIRCUMSTANCES OF THIS CASE IS
NOT TO HOBBLE THE LAW ENFORCEMENT PROCESS.  HERE THERE WAS NO NECESSITY
FOR HASTE, NO LIKELIHOOD THAT THE CONTENTS OF THE APARTMENT MIGHT BE
REMOVED OR DESTROYED BEFORE A VALID SEARCH WARRANT COULD BE OBTAINED. 
INDEED, THE AGENTS DID GET A WARRANT TO SEARCH PETITIONER'S OFFICE AND
AUTOMOBILE.  IT WOULD HAVE BEEN NO UNDUE BURDEN ON THEM TO OBTAIN A
WARRANT TO SEARCH THE APARTMENT, GUARDING IT IN THE MEANTIME. 
CERTAINLY THE CONSTITUTION IS NOT DEPENDENT UPON THE WHIM OR
CONVENIENCE OF LAW ENFORCEMENT OFFICERS.  SEARCH SHOULD NOT BE MADE
WITHOUT A WARRANT, IN OTHER WORDS, WHERE THE OPPORTUNITY FOR THE
ISSUANCE OF A WARRANT EXISTS.  CARROLL V. UNITED STATES, 267 U.S. 132,
156; TAYLOR V. UNITED STATES, 286 U.S. 1, 6. 

THE DECISION OF THE COURT IN THIS CASE CAN HAVE BUT ONE MEANING SO
FAR AS SEARCHES ARE CONCERNED.  IT EFFECTIVELY TAKES AWAY THE
PROTECTION OF THE FOURTH AMENDMENT AGAINST UNREASONABLE SEARCHES FROM
THOSE WHO ARE PLACED UNDER LAWFUL ARREST IN THEIR HOMES.  SMALL, MINUTE
OBJECTS ARE USED IN CONNECTION WITH MOST IF NOT ALL CRIMES; AND THERE
IS ALWAYS THE POSSIBILITY THAT SOME FRUIT OF THE CRIME OR SOME ITEM
USED IN THE COMMISSION OF THE OFFENSE MAY TAKE THE FORM OF A SMALL
PIECE OF PAPER.  USING THE SUBTERFUGE OF SEARCHING FOR SUCH FRUITS AND
INSTRUMENTALITIES OF THE CRIME, LAW ENFORCEMENT OFFICERS ARE NOW FREE
TO ENGAGE IN AN UNLIMITED PLUNDER OF THE HOME.  SOME OF THEM MAY BE
FRANK ENOUGH, AS IN THIS CASE, TO ADMIT OPENLY THAT THE OBJECT OF THEIR
SEARCH IS "ANYTHING" THAT MIGHT CONNECT THE ACCUSED WITH THE ALLEGED
CRIME.  OTHERS MAY BE MORE GUARDED IN THEIR ADMISSIONS.  BUT ALL WILL
REALIZE THAT IT IS NOW FAR BETTER FOR THEM TO FOREGO SECURING A SEARCH
WARRANT, WHICH IS LIMITED IN SCOPE BY THE FOURTH AMENDMENT TO THOSE
ARTICLES SET FORTH WITH PARTICULARITY IN THE WARRANT.  UNDER TODAY'S
DECISION, A WARRANT OF ARREST FOR A PARTICULAR CRIME AUTHORIZES AN
UNLIMITED SEARCH OF ONE'S HOME FROM CELLAR TO ATTIC FOR EVIDENCE OF
"ANYTHING" THAT MIGHT COME TO LIGHT, WHETHER BEARING ON THE CRIME
CHARGED OR ANY OTHER CRIME.  A SEARCH WARRANT IS NOT ONLY UNNECESSARY;
IT IS A HINDRANCE. 

THE HOLDING THAT THE SEARCH IN THIS CASE WAS PROPER AND REASONABLE
THUS EXPANDS THE NARROW LIMITATIONS ON SEARCHES INCIDENT TO VALID
ARRESTS BEYOND ALL RECOGNITION.  WHAT HAS HERETOFORE BEEN A CAREFULLY
CIRCUMSCRIBED EXCEPTION TO THE PROHIBITION AGAINST SEARCHES WITHOUT
WARRANTS HAS NOW BEEN INFLATED INTO A COMPREHENSIVE PRINCIPLE OF
FREEDOM FROM ALL THE REQUIREMENTS OF THE FOURTH AMENDMENT.  THE RESULT
IS THAT A WARRANT FOR ARREST IS THE EQUIVALENT OF A GENERAL SEARCH
WARRANT OR WRIT OF ASSISTANCE; AS AN "INCIDENT" TO THE ARREST, THE
ARRESTING OFFICERS CAN SEARCH THE SURROUNDING PREMISES WITHOUT
LIMITATION FOR THE FRUITS, INSTRUMENTALITIES AND ANYTHING ELSE
CONNECTED WITH THE CRIME CHARGED OR WITH ANY OTHER POSSIBLE CRIME. 
THEY MAY DISREGARD WITH IMPUNITY ALL THE HISTORIC PRINCIPLES UNDERLYING
THE FOURTH AMENDMENT RELATIVE TO INDISCRIMINATE SEARCHES OF A MAN'S
HOME WHEN HE IS PLACED UNDER ARREST.  SEE BOYD V. UNITED STATES, 116
U.S. 616, 624-632; WEEKS V. UNITED STATES, SUPRA; BYARS V. UNITED
STATES, 273 U.S. 28.  THEY MAY DISREGARD THE FACT THAT THE FOURTH
AMENDMENT WAS DESIGNED IN PART, INDEED PERHAPS PRIMARILY, TO OUTLAW
SUCH GENERAL WARRANTS, THAT THERE IS NO EXCEPTION IN FAVOR OF GENERAL
SEARCHES IN THE COURSE OF EXECUTING A LAWFUL WARRANT FOR ARREST.  AS TO
THOSE PLACED UNDER ARREST, THE RESTRICTIONS OF THE FOURTH AMENDMENT ON
SEARCHES ARE NOW WORDS WITHOUT MEANING OR EFFECT. 

NOR IS THE FLAGRANT VIOLATION OF THE FOURTH AMENDMENT IN THIS CASE
REMEDIED BY THE FACT THAT THE ARRESTING OFFICERS, DURING THE COURSE OF
THEIR RANSACKING SEARCH, UNCOVERED AND SEIZED CERTAIN ARTICLES WHICH IT
WAS UNLAWFUL FOR PETITIONER TO POSSESS.  IT HAS LONG BEEN RECOGNIZED,
OF COURSE, THAT CERTAIN OBJECTS, THE POSSESSION OF WHICH IS IN SOME WAY
ILLEGAL, MAY BE SEIZED ON APPROPRIATE OCCASIONS WITHOUT A SEARCH
WARRANT.  SUCH OBJECTS INCLUDE STOLEN GOODS, PROPERTY FORFEITED TO THE
GOVERNMENT, PROPERTY CONCEALED TO AVOID PAYMENT OF DUTIES, COUNTERFEIT
COINS, BURGLAR TOOLS, GAMBLING PARAPHERNALIA, ILLICIT LIQUOR AND THE
LIKE.  BOYD V. UNITED STATES, SUPRA, 623-624; UNITED STATES V.
LEFKOWITZ, SUPRA, 465-466; GOULED V. UNITED STATES, 255 U.S. 298, 309. 
BUT THE PERMISSIBLE SEIZURE OF SUCH GOODS IS NECESSARILY DEPENDENT UPON
THE SEIZURE OCCURRING (1) DURING THE COURSE OF A REASONABLE,
CONSTITUTIONAL SEARCH, (2) AS THE RESULT OF READY OBSERVANCE OF THE
SURROUNDING PREMISES BY THE ARRESTING OFFICERS, OR (3) AS THE RESULT OF
THE USE OF SUCH OBJECTS IN THE COMMISSION OF A CRIME IN THE PRESENCE OF
THE OFFICERS.  NEVER HAS IT BEEN SUGGESTED BY THIS COURT THAT LAW
ENFORCEMENT OFFICERS CAN USE ILLEGAL MEANS TO SEIZE THAT WHICH IT IS
UNLAWFUL TO POSSESS.  TO BREAK AND ENTER, TO ENGAGE IN UNAUTHORIZED AND
UNREASONABLE SEARCHES, TO DESTROY ALL THE RIGHTS TO PRIVACY IN AN
EFFORT TO UPROOT CRIME MAY SUIT THE PURPOSES OF DESPOTIC POWER, BUT
THOSE METHODS CANNOT ABIDE THE PURE ATMOSPHERE OF A FREE SOCIETY. 

THE SEIZURE HERE, AS NOTED, DID NOT OCCUR DURING THE COURSE OF A
REASONABLE, CONSTITUTIONAL SEARCH.  NOR DID IT RESULT FROM THE READY
OBSERVANCE OF THE SURROUNDING PREMISES; THE DRAFT CERTIFICATES AND
NOTICES WERE DISCOVERED ONLY AFTER A MOST METICULOUS RANSACKING.  IT IS
SAID, HOWEVER, THAT THE POSSESSION OF THESE ITEMS BY PETITIONER
CONSTITUTED A CONTINUING OFFENSE COMMITTED IN THE PRESENCE OF THE
ARRESTING OFFICERS.  THIS MAY BE A DIALECTICAL WAY OF PUTTING THE
MATTER, BUT IT WOULD NOT COMMEND ITSELF TO THE COMMON UNDERSTANDING OF
MEN.  FROM A PRACTICAL STANDPOINT, THESE CERTIFICATES AND NOTICES WERE
NOT BEING POSSESSED IN THE PRESENCE OF THE OFFICERS.  THEY WERE HIDDEN
AWAY IN THE BOTTOM OF A DRESSER DRAWER BENEATH SOME CLOTHES.  NO
ARRESTING OFFICER COULD POSSIBLY BE AWARE OF THEIR EXISTENCE OR
LOCATION UNLESS HE POSSESSED SOME SUPERNATURAL FACULTY.  INDEED, IF AN
ARRESTING OFFICER IS TO BE ALLOWED TO SEARCH FOR AND SEIZE ALL HIDDEN
THINGS THE POSSESSION OF WHICH IS UNLAWFUL, ON THE THEORY THAT THE
POSSESSION IS OCCURRING IN HIS PRESENCE, THERE WOULD BE NOTHING LEFT OF
THE FOURTH AMENDMENT.  LAW ENFORCEMENT OFFICERS WOULD BE INVITED TO
IGNORE THE RIGHT TO PRIVACY EXECUTING WARRANTS OF ARREST AND SEARCHING
WITHOUT RESTRAINT AND WITHOUT REGARD TO CONSTITUTIONAL RIGHTS FOR THOSE
HIDDEN ITEMS WHICH WERE BEING ILLEGALLY "POSSESSED" IN THEIR
"PRESENCE." 

THE KEY FACT OF THIS CASE IS THAT THE SEARCH WAS LAWLESS.  A LAWLESS
SEARCH CANNOT GIVE RISE TO A LAWFUL SEIZURE, EVEN OF CONTRABAND GOODS. 
AND "GOOD FAITH" ON THE PART OF THE ARRESTING OFFICERS CANNOT JUSTIFY A
LAWLESS SEARCH, NOR SUPPORT A LAWLESS SEIZURE.  IN FORBIDDING
UNREASONABLE SEARCHES AND SEIZURES, THE CONSTITUTION MADE CERTAIN
PROCEDURAL REQUIREMENTS INDISPENSABLE FOR LAWFUL SEARCHES AND
SEIZURES.  IT DID NOT MEAN, HOWEVER, TO SUBSTITUTE THE GOOD INTENTIONS
OF THE POLICE FOR JUDICIAL AUTHORIZATION EXCEPT IN NARROWLY CONFINED
SITUATIONS.  HISTORY, BOTH BEFORE AND AFTER THE ADOPTION OF THE FOURTH
AMENDMENT, HAS SHOWN GOOD POLICE INTENTIONS TO BE INADEQUATE SAFEGUARDS
FOR THE PRECIOUS RIGHTS OF MAN.  BUT THE COURT NOW TURNS ITS BACK ON
THAT HISTORY AND LEAVES THE REASONABLENESS OF SEARCHES AND SEIZURES
WITHOUT WARRANTS TO THE UNRELIABLE JUDGMENT OF THE ARRESTING OFFICERS. 
AS A RESULT, THE RIGHTS OF THOSE PLACED UNDER ARREST TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES ARE PRECARIOUS TO THE EXTREME. 

NOW IT MAY BE THAT THE ILLEGALITY OF THE SEARCH AND OF THE SEIZURE IN
THIS CASE LEADS TO THE IMMUNIZING OF PETITIONER FROM PROSECUTION FOR
THE ILLEGAL POSSESSION OF THE DRAFT CERTIFICATES AND NOTICES.  BUT
FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE IS ONE OF THE CARDINAL
RIGHTS OF FREE MEN UNDER OUR CONSTITUTION.  THAT FREEDOM BELONGS TO ALL
MEN, INCLUDING THOSE WHO MAY BE GUILTY OF SOME CRIME.  THE PUBLIC
POLICY UNDERLYING THE CONSTITUTIONAL GUARANTEE OF THAT FREEDOM IS SO
GREAT AS TO OUTWEIGH THE DESIRABILITY OF CONVICTING THOSE WHOSE CRIME
HAS BEEN REVEALED THROUGH AN UNLAWFUL INVASION OF THEIR RIGHT TO
PRIVACY.  LAWLESS METHODS OF LAW ENFORCEMENT ARE FREQUENTLY EFFECTIVE
IN UNCOVERING CRIME, ESPECIALLY WHERE TYRANNY REIGNS, BUT THEY ARE NOT
TO BE COUNTENANCED UNDER OUR FORM OF GOVERNMENT.  IT IS NOT A NOVEL
PRINCIPLE OF OUR CONSTITUTIONAL SYSTEM THAT A FEW CRIMINALS SHOULD GO
FREE RATHER THAN THAT THE FREEDOM AND LIBERTY OF ALL CITIZENS BE
JEOPARDIZED. 

IT IS LIKELY THAT THE FULL IMPACT OF TODAY'S DECISION WILL NOT BE
APPARENT IMMEDIATELY.  PETITIONER IS NOT AN IMPORTANT OR NOTORIOUS
CRIMINAL; AND THE INVESTIGATION MAY HAVE BEEN UNDERTAKEN WITH THE BEST
OF MOTIVES.  BUT APART FROM THE FACT THAT THE CONSTITUTION WAS DESIGNED
TO PROTECT THE UNIMPORTANT AS WELL AS THE IMPORTANT, INCLUDING THOSE OF
CRIMINAL TENDENCIES, THE IMPLICATIONS OF WHAT HAS BEEN DONE IN THIS
CASE CAN AFFECT THE FREEDOM OF ALL OUR PEOPLE.  THE PRINCIPLE
ESTABLISHED BY THE COURT TODAY CAN BE USED AS EASILY BY SOME FUTURE
GOVERNMENT DETERMINED TO SUPPRESS POLITICAL OPPOSITION UNDER THE GUISE
OF SEDITION AS IT CAN BE USED BY A GOVERNMENT DETERMINED TO UNDO
FORGERS AND DEFRAUDERS.  SEE UNITED STATES V. KIRSCHENBLATT, 16 F.2D
202, 203.  HISTORY IS NOT WITHOUT EXAMPLES OF THE OUTLAWRY OF CERTAIN
POLITICAL, RELIGIOUS AND ECONOMIC BELIEFS AND THE RELENTLESS
PROSECUTION OF THOSE WHO DARE TO ENTERTAIN SUCH BELIEFS.  AND HISTORY
HAS A WAY OF REPEATING ITSELF.  IT THEREFORE TAKES NO STRETCH OF THE
IMAGINATION TO PICTURE LAW ENFORCEMENT OFFICERS ARRESTING THOSE ACCUSED
OF BELIEVING, WRITING OR SPEAKING THAT WHICH IS PROSCRIBED, ACCOMPANIED
BY A THOROUGH RANSACKING OF THEIR HOMES AS AN "INCIDENT" TO THE ARREST
IN AN EFFORT TO UNCOVER "ANYTHING" OF A SEDITIOUS NATURE.  UNDER THE
COURT'S DECISION, THE FOURTH AMENDMENT NO LONGER STANDS AS A BAR TO
SUCH TYRANNY AND OPPRESSION.  ON THE CONTRARY, DIRECT ENCOURAGEMENT IS
GIVEN TO THIS ABANDONMENT OF THE RIGHT OF PRIVACY, A RIGHT WON AT SO
GREAT A COST BY THOSE WHO FOUGHT FOR FREEDOM THROUGH THE FLIGHT OF
TIME. 

AS JUDGE LEARNED HAND RECENTLY SAID, "IF THE PROSECUTION OF CRIME IS
TO BE CONDUCTED WITH SO LITTLE REGARD FOR THAT PROTECTION WHICH
CENTURIES OF ENGLISH LAW HAVE GIVEN TO THE INDIVIDUAL, WE ARE INDEED AT
THE DAWN OF A NEW ERA; AND MUCH THAT WE HAVE DEEMED VITAL TO OUR
LIBERTIES, IS A DELUSION."  UNITED STATES V. DI RE, 159 F.2D 818, 820. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE RUTLEDGE JOIN THIS DISSENT. 

MR. JUSTICE JACKSON, DISSENTING. 

THIS CASE CALLS UPON THE COURT TO SAY WHETHER ANY RIGHT TO SEARCH A
HOME IS CONFERRED ON OFFICERS BY THE FACT THAT WITHIN THAT HOME THEY
ARREST ONE OF ITS INHABITANTS.  THE LAW IN THIS FIELD HAS NOT BEEN MADE
TOO CLEAR BY OUR PREVIOUS DECISIONS.  I DO NOT CRITICIZE THE OFFICERS
INVOLVED IN THIS CASE, BECAUSE THIS COURT'S DECISIONS AFFORD THEM NO
CLEAR GUIDANCE. 

THE FOURTH AMENDMENT FIRST DECLARES IN BOLD BROAD TERMS:  "THE RIGHT
OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND
EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE
VIOLATED  ...  "  OUR TROUBLE ARISES BECAUSE THIS SENTENCE LEAVES
DEBATABLE WHAT PARTICULAR SEARCHES ARE UNREASONABLE ONES.  THOSE WHO
THINK IT THEIR DUTY TO MAKE SEARCHES SELDOM AGREE ON THIS POINT WITH
THOSE WHO FIND IT IN THEIR INTEREST TO FRUSTRATE SEARCHES. 

THE AMENDMENT, HAVING THUS ROUGHLY INDICATED THE IMMUNITY OF THE
CITIZEN WHICH MUST NOT BE VIOLATED, GOES ON TO RECITE HOW OFFICERS MAY
BE AUTHORIZED, CONSISTENTLY WITH THE RIGHT SO DECLARED, TO MAKE
SEARCHES:  "  ...  AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE
CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING
THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

HERE ENDETH THE COMMAND OF THE FOREFATHERS, APPARENTLY BECAUSE THEY
BELIEVED THAT BY THUS CONTROLLING SEARCH WARRANTS THEY HAD CONTROLLED
SEARCHES.  THE FOREFATHERS, HOWEVER, WERE GUILTY OF A SERIOUS OVERSIGHT
IF THEY LEFT OPEN ANOTHER WAY BY WHICH SEARCHES LEGALLY MAY BE MADE
WITHOUT A SEARCH WARRANT AND WITH NONE OF THE SAFEGUARDS THAT WOULD
SURROUND THE ISSUANCE OF ONE.    OF COURSE, A WARRANT TO TAKE A PERSON
INTO CUSTODY IS AUTHORITY FOR TAKING INTO CUSTODY ALL THAT IS FOUND
UPON HIS PERSON OR IN HIS HANDS.  SOME OPINIONS HAVE SPOKEN IN
GENERALITIES OF THIS RIGHT TO SEARCH SUCH PROPERTY INCIDENTALLY TO
ARREST OF THE PERSON AS INCLUDING WHATEVER WAS IN THE ARRESTED PERSON'S
"POSSESSION." 

REPEATED EFFORTS HAVE BEEN MADE TO EXPAND THIS SEARCH TO INCLUDE ALL
PREMISES AND PROPERTY IN CONSTRUCTIVE POSSESSION BY REASON OF TENANCY
OR OWNERSHIP.  WHILE THE LANGUAGE OF THIS COURT SOMETIMES HAS BEEN
AMBIGUOUS, I DO NOT FIND THAT THE COURT HERETOFORE HAS SUSTAINED THIS
EXTENSION OF THE INCIDENTAL SEARCH.  GO-BART IMPORTING CO. V. UNITED
STATES, 282 U.S. 344; UNITED STATES V. LEFKOWITZ, 285 U.S. 452.  IN
THIS RESPECT, IT SEEMS TO ME, THE DECISION OF TODAY GOES BEYOND ANY
PREVIOUS ONE AND THROWS A HOME OPEN TO SEARCH ON A WARRANT THAT DOES
NOT IN ANY RESPECT COMPLY WITH THE CONSTITUTIONAL REQUIREMENTS OF A
SEARCH WARRANT AND DOES NOT EVEN PURPORT TO AUTHORIZE ANY SEARCH OF ANY
PREMISES. 

THE DECISION CERTAINLY WILL BE TAKEN, IN PRACTICE, AS AUTHORITY FOR A
SEARCH OF ANY HOME, OFFICE OR OTHER PREMISES IF A WARRANT CAN BE
OBTAINED FOR THE ARREST OF ANY OCCUPANT AND THE OFFICER CHOOSES TO MAKE
THE ARREST ON THE PREMISES.  IT WOULD SEEM ALSO TO PERMIT SUCH SEARCH
INCIDENTALLY TO AN ARREST WITHOUT A WARRANT IF THE CIRCUMSTANCES MAKE
SUCH ARREST A LAWFUL ONE.  IT WOULD ALSO APPEAR TO SANCTION A SEARCH OF
PREMISES EVEN THOUGH THE ARREST WERE FOR THE MOST PETTY OF
MISDEMEANORS.  IT LEAVES TO THE ARRESTING OFFICER CHOICE OF THE
PREMISES TO BE SEARCHED INSOFAR AS HE CAN SELECT THE PLACE AMONG THOSE
IN WHICH THE ACCUSED MIGHT BE FOUND WHERE HE WILL EXECUTE THE WARRANT
OF PERSONAL ARREST.  THUS, THE PREMISES TO BE SEARCHED ARE DETERMINED
BY AN OFFICER RATHER THAN BY A MAGISTRATE, AND THE SEARCH IS NOT
CONFINED TO PLACES OR FOR THINGS "PARTICULARLY DESCRIBED" IN A WARRANT
BUT, IN PRACTICE, WILL BE AS EXTENSIVE AS THE ZEAL OF THE ARRESTING
OFFICER IN THE EXCITEMENT OF THE CHASE SUGGESTS.  WORDS OF CAUTION WILL
HEDGE AN OPINION, BUT THEY ARE NOT VERY EFFECTIVE IN HEDGING SEARCHES. 

THE DIFFICULTY WITH THIS PROBLEM FOR ME IS THAT ONCE THE SEARCH IS
ALLOWED TO GO BEYOND THE PERSON ARRESTED AND THE OBJECTS UPON HIM OR IN
HIS IMMEDIATE PHYSICAL CONTROL, I SEE NO PRACTICAL LIMIT SHORT OF THAT
SET IN THE OPINION OF THE COURT - AND THAT MEANS TO ME NO LIMIT AT
ALL. 

I AM UNABLE TO SUGGEST ANY TEST BY WHICH AN INCIDENTAL SEARCH, IF
PERMISSIBLE AT ALL, CAN IN POLICE PRACTICE BE KEPT WITHIN BOUNDS THAT
ARE REASONABLE.  I HEAR NONE.  I DO NOT AGREE WITH OTHER JUSTICES IN
DISSENT THAT THE INTENSITY OF THIS SEARCH MADE IT ILLEGAL.  IT IS
OBJECTED THAT THESE SEARCHERS WENT THROUGH EVERYTHING IN THE PREMISES. 
BUT IS A SEARCH VALID IF SUPERFICIAL AND ILLEGAL ONLY IF IT IS
THOROUGH?  IT TOOK FIVE HOURS ON THE PART OF SEVERAL OFFICERS.  BUT IF
IT WAS AUTHORIZED AT ALL, IT CAN HARDLY BECOME AT SOME MOMENT ILLEGAL
BECAUSE THERE WAS SO MUCH STUFF TO EXAMINE THAT IT TOOK OVERTIME.  IT
IS SAID THIS SEARCH WENT BEYOND WHAT WAS IN "PLAIN SIGHT."  IT WOULD
SEEM A LITTLE CAPRICIOUS TO SAY THAT A GUN ON TOP OF A NEWSPAPER COULD
BE TAKEN BUT A NEWSPAPER ON TOP OF A GUN INSULATED IT FROM SEIZURE.  IF
IT WERE WRONG TO OPEN A SEALED ENVELOPE IN THIS CASE, WOULD IT HAVE
BEEN RIGHT IF THE MUCILAGE FAILED TO STICK?  THE SHORT OF THE THING IS
THAT WE CANNOT SAY THAT A SEARCH IS ILLEGAL OR LEGAL BECAUSE OF WHAT IT
ENDS IN.  IT IS LEGAL OR ILLEGAL BECAUSE OF THE CONDITIONS IN WHICH IT
STARTS. 

I CANNOT ESCAPE THE CONCLUSION THAT A SEARCH, FOR WHICH WE CAN ASSIGN
NO PRACTICABLE LIMITS, ON PREMISES AND FOR THINGS WHICH NO ONE
DESCRIBES IN ADVANCE, IS SUCH A SEARCH AS THE CONSTITUTION CONSIDERED
"UNREASONABLE" AND INTENDED TO PROHIBIT. 

IN VIEW OF THE LONG HISTORY OF ABUSE OF SEARCH AND SEIZURE WHICH LED
TO THE FOURTH AMENDMENT, I DO NOT THINK IT WAS INTENDED TO LEAVE OPEN
AN EASY WAY TO CIRCUMVENT THE PROTECTION IT EXTENDED TO THE PRIVACY OF
INDIVIDUAL LIFE.  IN VIEW OF THE READINESS OF ZEALOTS TO RIDE ROUGHSHOD
OVER CLAIMS OF PRIVACY FOR ANY ENDS THAT IMPRESS THEM AS SOCIALLY
DESIRABLE, WE SHOULD NOT MAKE INROADS ON THE RIGHTS PROTECTED BY THIS
AMENDMENT.  THE FAIR IMPLICATION OF THE CONSTITUTION IS THAT NO SEARCH
OF PREMISES, AS SUCH, IS REASONABLE EXCEPT THE CAUSE FOR IT BE APPROVED
AND THE LIMITS OF IT FIXED AND THE SCOPE OF IT PARTICULARLY DEFINED BY
A DISINTERESTED MAGISTRATE.  IF THESE CONDITIONS ARE NECESSARY
LIMITATIONS ON A COURT'S POWER EXPRESSLY TO AUTHORIZE A SEARCH, IT
WOULD SEEM THAT THEY SHOULD NOT BE ENTIRELY DISPENSED WITH BECAUSE A
MAGISTRATE HAS ISSUED A WARRANT WHICH CONTAINS NO EXPRESS AUTHORIZATION
TO SEARCH AT ALL. 

OF COURSE, THIS, LIKE EACH OF OUR CONSTITUTIONAL GUARANTIES, OFTEN
MAY AFFORD A SHELTER FOR CRIMINALS.  BUT THE FOREFATHERS THOUGHT THIS
WAS NOT TOO GREAT A PRICE TO PAY FOR THAT DECENT PRIVACY OF HOME,
PAPERS AND EFFECTS WHICH IS INDISPENSABLE TO INDIVIDUAL DIGNITY AND
SELF-RESPECT.  THEY MAY HAVE OVERVALUED PRIVACY, BUT I AM NOT DISPOSED
TO SET THEIR COMMAND AT NAUGHT. 
..END :










MADISON AVE. CORP. V. ASSELTA, 331 U.S. 199 


NO. 497.  ARGUED FEBRUARY 11, 1947.  - DECIDED MAY 5, 1947.  - 156 F.2D
139, AFFIRMED. 


1.  A WAGE AGREEMENT ENTERED INTO BY DIRECTION OF THE NATIONAL WAR
LABOR BOARD PROVIDING THAT EMPLOYEES SHOULD BE PAID FIXED WEEKLY WAGES
FOR WORKWEEKS OF SPECIFIED LENGTH, IN EXCESS OF 40 HOURS, AND THAT THE
"HOURLY RATE" WAS TO BE DETERMINED BY DIVIDING WEEKLY EARNINGS BY THE
NUMBER OF HOURS EMPLOYED PLUS ONE-HALF OF THE NUMBER OF HOURS ACTUALLY
WORKED IN EXCESS OF 40, WHICH ACTUALLY WAS APPLIED SO AS TO RESULT IN A
SCHEDULED WORKWEEK IN EXCESS OF 40 HOURS WITHOUT EFFECTIVE PROVISION
FOR OVERTIME PAY UNTIL EMPLOYEES HAD COMPLETED THE SCHEDULED WORKWEEK,
HELD NOT IN CONFORMITY WITH THE OVERTIME PAY REQUIREMENTS OF SEC. 7(A)
OF THE FAIR LABOR STANDARDS ACT.  PP. 203-210. 

2.  THE "HOURLY RATE" DERIVED FROM THE FORMULA PRESCRIBED IN THE
AGREEMENT WAS NOT THE "REGULAR RATE" OF PAY WITHIN THE MEANING OF THE
FAIR LABOR STANDARDS ACT.  PP. 203-210. 

3.  WALLING V. BELO CORP., 316 U.S. 624, AND WALLING V. HALLIBURTON
CO., 331 U.S. 17, DISTINGUISHED.  P. 209. 

149 MADISON AVENUE CORP. ET AL. V. ASSELTA ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

RESPONDENTS SUED THEIR EMPLOYER, PETITIONER HERE, TO RECOVER SUMS
ALLEGEDLY DUE THEM UNDER THE FAIR LABOR STANDARDS ACT, AND WERE AWARDED
JUDGMENT IN THE DISTRICT COURT.  65 F.SUPP.  385.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  156 F.2D 139.  THIS COURT GRANTED CERTIORARI.  329
U.S. 817.  AFFIRMED, P. 210.  JUDGMENT MODIFIED, POST, PP. 210, 795. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS EMPLOYEE SUIT WAS BROUGHT IN THE DISTRICT COURT TO RECOVER
OVERTIME COMPENSATION, LIQUIDATED DAMAGES, AND A REASONABLE ATTORNEY'S
FEE PURSUANT TO SECS. 7(A) AND 16(B) OF THE FAIR LABOR STANDARDS ACT OF
1938.  FN1  RECOVERY WAS ALLOWED IN THE DISTRICT COURT, 65 F.SUPP. 
385, AND THAT JUDGMENT WAS AFFIRMED IN THE CIRCUIT COURT OF APPEALS. 
156 F.2D 139.  WE GRANTED CERTIORARI TO CONSIDER THE IMPORTANT
QUESTIONS PRESENTED RELATING TO THE APPLICATION OF THE OVERTIME
PROVISIONS OF THE ABOVE-MENTIONED STATUTE. 

RESPONDENTS ARE SERVICE AND MAINTENANCE EMPLOYEES WHO, DURING THE
PERIOD IN QUESTION, WORKED IN A LOFT BUILDING OWNED BY PETITIONER 149
MADISON AVENUE CORPORATION AND MANAGED BY PETITIONER WILLIAMS & CO. IT
HAS BEEN STIPULATED THAT RESPONDENTS WERE ENGAGED IN THE PRODUCTION OF
GOODS FOR COMMERCE.  FN2  WE ARE HERE CONCERNED WITH THE PERIOD OF
EMPLOYMENT EXTENDING FROM APRIL 21, 1942, TO DECEMBER 10, 1943. 

PRIOR TO APRIL 21, 1942, EMPLOYMENT RELATIONS BETWEEN THE PETITIONERS
AND RESPONDENTS WERE GOVERNED BY A COLLECTIVE WAGE AGREEMENT, KNOWN AS
THE SLOAN AGREEMENT.  FN3  ACCORDING TO ITS TERMS, EMPLOYEES WERE PAID
FLAT WEEKLY WAGES FOR WORKWEEKS OF SPECIFIED LENGTH WHICH, IN THE CASE
OF MOST OF THE RESPONDENTS, AMOUNTED TO $25 FOR 47 HOURS OF WEEKLY
EMPLOYMENT.  NO HOURLY RATES WERE SPECIFIED, NOR WAS ANY ATTEMPT MADE
TO COMPENSATE EMPLOYEES AT THE RATE OF TIME AND ONE-HALF FOR HOURS
WORKED IN EXCESS OF 40 IN ANY WEEK. 

AS THE EXPIRATION DATE OF THE SLOAN AGREEMENT DREW NEAR, NEGOTIATIONS
BETWEEN THE INTERESTED PARTIES WERE INITIATED FOR THE PURPOSE OF
REACHING AGREEMENT ON A NEW CONTRACT.  AFTER PRELIMINARY CONFERENCES
PROVED FRUITLESS, THE CASE WAS CERTIFIED TO THE WAR LABOR BOARD.  THAT
AGENCY STATED ITS RECOMMENDATIONS IN A DIRECTIVE ORDER ISSUED JULY 29,
1942; AND ON SEPTEMBER 1, 1942, THE PARTIES ENTERED INTO THE AGREEMENT
IN QUESTION, KNOWN AS THE NATIONAL WAR LABOR BOARD AGREEMENT.  IT HAD
BEEN AGREED THAT THE TERMS OF THE NEW CONTRACT WERE TO BE MADE
RETROACTIVE TO APRIL 20, 1942, THE EXPIRATION DATE OF THE SLOAN
AGREEMENT. 

THE NEW CONTRACT PROVIDED FOR A WORKWEEK OF 54 HOURS APPLICABLE TO
WATCHMEN AND A WORKWEEK OF 46 HOURS FOR OTHER REGULAR EMPLOYEES. 
WEEKLY WAGES WERE ESTABLISHED TO COMPENSATE THE 54 OR 46 HOURS OF
LABOR, WHICH SUMS WERE STATED TO INCLUDE BOTH PAYMENTS FOR THE REGULAR
HOURS OF EMPLOYMENT AND TIME AND ONE-HALF FOR THE HOURS IN EXCESS OF
40.  TO DERIVE THE HOURLY RATE FROM THE WEEKLY WAGE, THE FOLLOWING
FORMULA WAS INCLUDED: 

"THE HOURLY RATES FOR THOSE REGULARLY EMPLOYED MORE THAN FORTY (40)
HOURS PER WEEK SHALL BE DETERMINED BY DIVIDING THEIR WEEKLY EARNINGS BY
THE NUMBER OF HOURS EMPLOYED PLUS ONE-HALF THE NUMBER OF HOURS ACTUALLY
EMPLOYED IN EXCESS OF FORTY (40) HOURS." 

ALTHOUGH A LITERAL READING OF THE ABOVE LANGUAGE MIGHT SEEM TO
INDICATE THE ESTABLISHMENT OF A VARIABLE HOURLY RATE DEPENDENT UPON THE
NUMBER OF HOURS ACTUALLY WORKED IN ANY GIVEN WEEK, SUCH WAS NOT THE
PRACTICAL CONSTRUCTION OF THE PARTIES.  INSTEAD OF MAKING USE OF THE
NUMBER OF HOURS ACTUALLY WORKED, ONLY THE HOURS THE EMPLOYEE WAS
SCHEDULED TO WORK AND THE WEEKLY WAGE FOR SUCH SCHEDULED WORKWEEK
ENTERED INTO THE CALCULATION OF THE NON-OVERTIME HOURLY RATE.  FN4  THE
HOURLY RATE AS DERIVED FROM THE FORMULA REMAINED CONSTANT, THEREFORE,
REGARDLESS OF WHETHER THE EMPLOYEE WORKED THE SCHEDULED NUMBER OF HOURS
DURING THE WEEK OR A GREATER OR LESSER NUMBER.  IN EFFECT, THE
AGREEMENT INSTEAD OF DIRECTLY STATING A FIXED HOURLY RATE IN TERMS OF A
STIPULATED AMOUNT PER HOUR PROVIDED A FORMULA WHEREBY SUCH A FIXED
HOURLY RATE COULD BE CALCULATED. 

UNDER THE AGREEMENT, WEEKLY COMPENSATION VARIED ACCORDING TO THE
NUMBER OF HOURS WORKED IN THAT WEEK.  THUS, IN CASE AN EMPLOYEE WAS
UNABLE TO WORK ALL HIS SCHEDULED HOURS DUE TO AN "EXCUSABLE CAUSE," HE
WAS PAID AT THE FORMULA RATE WITH THE PROVISION, HOWEVER, THAT SIX OF
THE HOURS WORKED SHOULD BE COMPENSATED AS OVERTIME REGARDLESS OF
WHETHER THE TOTAL OF HOURS ACTUALLY WORKED WAS GREATER OR LESS THAN 40
IN THAT WEEK.  IF THE EMPLOYEE'S ABSENCE WAS NOT EXCUSABLE, HE WAS
APPARENTLY PAID A SUM FOR THE WEEK OBTAINED BY MULTIPLYING THE NUMBER
OF HOURS ACTUALLY WORKED TIMES THE FORMULA RATE, BEING GIVEN CREDIT FOR
OVERTIME ONLY IN CASE THE NUMBER OF HOURS WORKED EXCEEDED 40.  FN5  THE
AGREEMENT PROVIDED THAT ALL REGULAR EMPLOYEES EXCEPT WATCHMEN SHOULD BE
COMPENSATED AT A RATE ONE AND THREE-QUARTERS TIMES THE HOURLY RATE
DERIVED FROM THE FORMULA FOR HOURS WORKED IN EXCESS OF 46.  WATCHMEN
WERE TO BE PAID TWICE THE FORMULA RATE FOR HOURS WORKED IN EXCESS OF
54.  PART-TIME WORKERS EMPLOYED FOR LESS THAN THE SCHEDULED WORKWEEK
WERE HIRED AT A SPECIFIED SCHEDULE OF HOURLY RATES OBTAINED BY DIVIDING
THE WEEKLY WAGE PAID THE REGULAR EMPLOYEES BY THE NUMBER OF HOURS IN
THE REGULAR WORKWEEK. 

IT WAS NOT THE PURPOSE OF CONGRESS IN ENACTING THE FAIR LABOR
STANDARDS ACT TO IMPOSE UPON THE ALMOST INFINITE VARIETY OF EMPLOYMENT
SITUATIONS A SINGLE, RIGID FORM OF WAGE AGREEMENT.  WALLING V. BELO
CORP., 316 U.S. 624(1942).  SECTION 7(A) OF THE ACT REQUIRES, HOWEVER,
THAT ANY WAGE AGREEMENT FALLING WITHIN ITS PURVIEW MUST ESTABLISH AN
HOURLY "REGULAR RATE" NOT LESS THAN THE STATUTORY MINIMUM AND PROVIDE
FOR OVERTIME PAYMENTS OF AT LEAST ONE AND ONE-HALF TIMES THE "REGULAR
RATE."  A WAGE PLAN IS NOT RENDERED INVALID SIMPLY BECAUSE, INSTEAD OF
STATING DIRECTLY AN HOURLY RATE OF PAY IN AN AMOUNT CONSISTENT WITH THE
STATUTORY REQUIREMENTS, THE PARTIES HAVE SEEN FIT TO STIPULATE A WEEKLY
WAGE INCLUSIVE OF REGULAR AND OVERTIME COMPENSATION FOR A WORKWEEK IN
EXCESS OF 40 HOURS AND HAVE PROVIDED A FORMULA WHEREBY THE APPROPRIATE
HOURLY RATE MAY BE DERIVED THEREFROM.  THE CRUCIAL QUESTIONS IN THIS
CASE, HOWEVER, ARE WHETHER THE HOURLY RATE DERIVED FROM THE FORMULA
HERE PRESENTED WAS, IN FACT, THE "REGULAR RATE" OF PAY WITHIN THE
STATUTORY MEANING AND WHETHER THE WAGE AGREEMENT UNDER CONSIDERATION,
IN FACT, MADE ADEQUATE PROVISION FOR OVERTIME COMPENSATION. 

WE HAVE HELD THAT THE WORDS "REGULAR RATE," WHILE NOT EXPRESSLY
DEFINED IN THE STATUTE, "  ... MEAN THE HOURLY RATE ACTUALLY PAID FOR
THE NORMAL, NON-OVERTIME WORKWEEK."  WALLING V. HELMERICH & PAYNE,
INC., 323 U.S. 37, 40(1944).  THE REGULAR RATE IS THUS AN "ACTUAL
FACT," AND IN TESTING THE VALIDITY OF A WAGE AGREEMENT UNDER THE ACT
THE COURTS ARE REQUIRED TO LOOK BEYOND THAT WHICH THE PARTIES HAVE
PURPORTED TO DO.  WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO., 325 U.S.
419, 424(1945).  IT IS THE CONTENTION OF THE RESPONDENTS THAT THE RATE
DERIVED BY THE USE OF THE CONTRACT FORMULA WAS NOT THE REGULAR RATE OF
PAY; THAT THE REGULAR RATE ACTUALLY PAID WAS SUBSTANTIALLY THAT
OBTAINED BY DIVIDING THE WEEKLY WAGE PAYABLE FOR THE WORKING OF THE
SCHEDULED WORKWEEK BY THE NUMBER OF HOURS IN SUCH SCHEDULED WORKWEEK;
AND THAT, CONSEQUENTLY, THE PLAN MADE NO ADEQUATE PROVISION FOR
OVERTIME COMPENSATION UNTIL EMPLOYEES REGULARLY HIRED AS WATCHMEN HAD
WORKED A TOTAL OF 54 HOURS IN ONE WEEK AND UNTIL OTHER REGULAR
EMPLOYEES HAD WORKED A TOTAL OF 46 HOURS.  WE BELIEVE THAT THE RECORD
PROVIDES AMPLE SUPPORT FOR THAT VIEW. 

THUS, IN DETERMINING A SCHEDULE OF HOURLY RATES PAYABLE TO PART-TIME
WORKERS EMPLOYED LESS THAN 40 HOURS A WEEK, NO USE WHATSOEVER WAS MADE
OF THE HOURLY RATE DERIVED FROM THE FORMULA.  PART-TIME WORKERS WERE
PAID A RATE DETERMINED BY DIVIDING THE WEEKLY WAGE PAID TO THE REGULAR
EMPLOYEES BY THE NUMBER OF HOURS IN THE REGULAR WORKWEEK DESPITE THE
FACT THAT, ACCORDING TO THE TERMS OF THE FORMULA, THE WEEKLY WAGE
INCLUDED BOTH REGULAR AND OVERTIME PAY.  INSOFAR AS PART-TIME WORKERS
WERE CONCERNED, THE AGREEMENT CLEARLY INDICATED AN INTENTION TO
COMPENSATE AN HOUR'S LABOR BY PAYMENT OF A PRO-RATA SHARE OF THE WEEKLY
WAGE. 

NOR WAS THERE CONSISTENT APPLICATION OF THE HOURLY RATE AS DETERMINED
BY THE FORMULA TO THE WORK OF REGULAR EMPLOYEES HIRED FOR A FULL 46
HOUR WEEK.  WHERE SUCH AN EMPLOYEE WAS ABSENT FOR AN "EXCUSABLE CAUSE,"
HIS WEEKLY COMPENSATION WAS NOT DETERMINED BY MULTIPLYING THE FORMULA
RATE BY THE HOURS WORKED.  RATHER, SIX OF THE HOURS THE EMPLOYEE WORKED
WERE ALWAYS TREATED AS OVERTIME AND COMPENSATED AT THE RATE OF ONE AND
ONE-HALF TIMES THE FORMULA RATE REGARDLESS OF THE TOTAL HOURS ACTUALLY
WORKED, THUS RESULTING IN AVERAGE HOURLY COMPENSATION CONSIDERABLY IN
EXCESS OF THE FORMULA RATE.  THE PAYMENT OF "OVERTIME" COMPENSATION FOR
NON-OVERTIME WORK RAISES STRONG DOUBT AS TO THE INTEGRITY OF THE HOURLY
RATE UPON THE BASIS OF WHICH THE "OVERTIME" COMPENSATION IS
CALCULATED.  CF. WALLING V. HELMERICH & PAYNE, INC., SUPRA.  WHILE THE
AVERAGE HOURLY RATE ACTUALLY RECEIVED BY THE EMPLOYEE IN THIS SITUATION
WAS NOT PRECISELY THAT WHICH WOULD HAVE RESULTED FROM DIVIDING THE
WEEKLY WAGE BY 46, IT ORDINARILY APPROACHED THAT FIGURE MUCH MORE
CLOSELY THAN IT DID THE SO-CALLED HOURLY RATE ESTABLISHED BY THE
FORMULA.  FN6  THIS METHOD OF PAYMENT REVEALS FURTHER EVIDENCE OF AN
ATTEMPT TO PAY A PRO-RATA SHARE OF THE WEEKLY WAGE FOR AN HOUR'S LABOR
REGARDLESS OF THE NUMBER OF HOURS WORKED UP TO 46. 

THE AGREEMENT PROVIDED THAT HOURS WORKED IN EXCESS OF THE SCHEDULED
46-HOUR WEEK SHOULD BE COMPENSATED AT THE RATE OF ONE AND THREE
QUARTERS OF THE FORMULA RATE.  FN7  WHILE THE FORMULA RATE SEEMS TO
HAVE BEEN CONSISTENTLY APPLIED IN SUCH SITUATIONS, IT IS SIGNIFICANT TO
OBSERVE THAT THE AMOUNT RECEIVED BY THE WORKER UNDER THESE
CIRCUMSTANCES APPROXIMATES VERY CLOSELY THAT WHICH HE WOULD HAVE
RECEIVED HAD HE BEEN PAID AN HOURLY RATE DETERMINED BY DIVIDING THE
WEEKLY WAGE PAYABLE FOR THE SCHEDULED WORKWEEK BY 46 WITH PAYMENT OF
TIME AND ONE-HALF FOR HOURS WORKED IN EXCESS OF 46.  FN8  THIS
APPROXIMATION WAS NOT FORTUITOUS.  IN THE DIRECTIVE ORDER OF THE
NATIONAL WAR LABOR BOARD THE ORIGIN AND PURPOSE OF THESE PROVISIONS ARE
DISCUSSED, AND THE FOLLOWING STATEMENT IS MADE:  "OVERTIME OVER FORTY
SIX (46) HOURS IS PAID AT A RATE OF TIME AND THREE-QUARTERS IN AN
EFFORT APPROXIMATELY TO EQUAL THE OVERTIME TO WHICH AN EMPLOYEE WOULD
ORDINARILY BE ENTITLED, IF IT WERE COMPUTED ON THE BASIS OF TIME AND A
HALF AFTER A FORTY-SIX (46) HOUR WEEK."  FN9 

PETITIONERS HAVE ARGUED THAT NONE OF THESE PROVISIONS PROVIDES A
CONCLUSIVE DEMONSTRATION THAT THE FORMULA RATE WAS NOT THE ACTUAL
REGULAR RATE OF PAY.  IT IS SAID THAT PART-TIME EMPLOYEES WERE PAID A
PRO-RATA HOURLY RATE SINCE THEY HAD NO OPPORTUNITY TO EARN OVERTIME
COMPENSATION; THAT THE METHOD OF PAYING REGULAR EMPLOYEES IN CASE OF
EXCUSABLE ABSENCES WAS MERELY A LAUDABLE EFFORT ON THE PART OF THE
EMPLOYER TO COMPENSATE MORE FULLY THAN THE ACT REQUIRES WHEN AN
EMPLOYEE FAILED TO WORK HIS SCHEDULED WEEK BECAUSE OF ILLNESS OR LIKE
CAUSES; AND THAT THE TIME AND THREE-QUARTERS PROVISION REPRESENTED AN
ADDITIONAL PREMIUM FOR EMPLOYEES CALLED UPON TO WORK HOURS
SUBSTANTIALLY IN EXCESS OF THE NON-OVERTIME WEEK.  WE CANNOT IGNORE THE
FACT, HOWEVER, THAT THE AGREEMENT ON ITS FACE FAILS TO PROVIDE FOR THE
CONSISTENT APPLICATION OF THE FORMULA RATES IN THOSE SITUATIONS WHERE
SUCH RATES SHOULD BE EXPECTED TO CONTROL.  THESE DEVIATIONS TAKE ON
ADDITIONAL SIGNIFICANCE WHEN IT IS OBSERVED THAT IN EVERY SITUATION,
WITH THE RELATIVELY UNIMPORTANT EXCEPTION OF THAT INVOLVING UNEXCUSED
ABSENCES,  FN10  THE AMOUNT PAID WAS EITHER PRECISELY OR SUBSTANTIALLY
THAT WHICH EMPLOYEES WOULD HAVE BEEN PAID HAD THE CONTRACT CALLED FOR
EMPLOYMENT ON A STRAIGHT 46-HOUR WEEK WITH PAYMENT OF TIME AND ONE-HALF
ONLY FOR HOURS WORKED IN EXCESS OF 46. 

FURTHER LIGHT IS THROWN UPON THE NATURE OF THE WAGE AGREEMENT BY A
CONSIDERATION OF THE PLAN IN ACTUAL OPERATION.  DURING THE PERIOD
BETWEEN APRIL 21 AND SEPTEMBER 1, 1942, WHEN THE CONTRACT IN QUESTION
WAS THE SUBJECT OF NEGOTIATION, IT WAS UNDERSTOOD THAT THE OLD SLOAN
AGREEMENT SHOULD REMAIN IN EFFECT BUT THAT THE TERMS OF THE NEW
CONTRACT SHOULD BE GIVEN RETROACTIVE APPLICATION TO APRIL 20.  THE
SLOAN AGREEMENT PROVIDED FOR A MINIMUM WAGE OF $25 FOR A WORKWEEK OF 47
HOURS WITH NO PROVISION FOR OVERTIME FOR HOURS WORKED IN EXCESS OF 40. 
IT IS OBVIOUS, THEREFORE, THAT BETWEEN THE ABOVE-MENTIONED DATES THE
EMPLOYEES WERE PAID ON A BASIS CLEARLY REPUGNANT TO THE REQUIREMENTS OF
SEC. 7(A) OF THE FAIR LABOR STANDARDS ACT.  PETITIONERS URGE, HOWEVER,
THAT BY MAKING THE RETROACTIVE PAYMENTS AS REQUIRED BY THE AGREEMENT,
ANY ILLEGALITY IN THE METHOD OF PAYMENT DURING THE PERIOD OF
NEGOTIATIONS WAS ELIMINATED.  BUT IN ATTEMPTING TO SATISFY THE
RETROACTIVE LIABILITY, PETITIONERS COMPLETELY IGNORED THE FORMULA RATES
AND PAID EACH OF THE RESPONDENTS $2.50 FOR EACH WEEK WORKED DURING THE
PERIOD, REPRESENTING THE INCREASE IN THE MINIMUM WEEKLY WAGE FOR THE
SCHEDULED WORKWEEK ESTABLISHED BY THE NEW AGREEMENT, WITHOUT ATTEMPTING
FURTHER ADJUSTMENT.  PETITIONERS ADMIT THAT "UNDOUBTEDLY SOME EMPLOYEES
WHO WORKED NO OVERTIME IN CERTAIN WEEKS WERE OVERPAID; OTHER WHO WORKED
BEYOND THE SCHEDULED WORKWEEK OF 47 HOURS THEN PREVAILING MAY NOT HAVE
BEEN PAID ENOUGH."  IT IS APPARENT THAT THE AMOUNT OF WAGES PAID THE
RESPONDENTS FOR WORK PERFORMED DURING THE PERIOD OF NEGOTIATIONS WAS IN
NO SENSE DETERMINED BY APPLICATION OF HOURLY RATES DERIVED FROM THE
FORMULA.  FN11    THE PARTIES HAVE CALLED OUR ATTENTION TO MUCH OTHER
EVIDENCE WHICH, IT IS ASSERTED, REVEALS THE PRACTICAL CONSTRUCTION
GIVEN TO THE TERMS OF THE AGREEMENT IN QUESTION.  WE DO NOT FEEL THAT
IT IS NECESSARY TO REVIEW THESE MATTERS AT LENGTH.  IT IS SUFFICIENT TO
STATE THAT, AFTER CONSIDERING THE TERMS OF THE AGREEMENT AND THE
OPERATION OF THE PLAN IN ACTUAL PRACTICE, WE HAVE COME TO THE
CONCLUSION THAT THE AGREEMENT IN THIS CASE WAS ONE CALLING FOR A
WORKWEEK IN EXCESS OF 40 HOURS WITHOUT EFFECTIVE PROVISION FOR OVERTIME
PAY UNTIL THE EMPLOYEES HAD COMPLETED THE SCHEDULED WORKWEEK AND THAT
THE "HOURLY RATE" DERIVED FROM THE USE OF THE CONTRACT FORMULA WAS NOT
THE "REGULAR RATE" OF PAY WITHIN THE MEANING OF THE FAIR LABOR
STANDARDS ACT.  THIS IS NOT A CASE LIKE WALLING V. BELO CORP., SUPRA,
OR WALLING V. HALLIBURTON OIL WELL CEMENTING CO., 331 U.S. 17(1947). 
UNLIKE THOSE CASES, THERE WAS HERE NO PROVISION FOR A GUARANTEED WEEKLY
WAGE WITH A STIPULATION OF AN HOURLY RATE WHICH UNDER THE CIRCUMSTANCES
PRESENTED COULD PROPERLY BE REGARDED AS THE ACTUAL REGULAR RATE OF
PAY. 

WE HOLD FOR THE REASONS STATED ABOVE THAT THE DISTRICT COURT AND THE
CIRCUIT COURT OF APPEALS PROPERLY DETERMINED THAT THE WAGE AGREEMENT IN
QUESTION FAILED TO SATISFY THE STATUTORY REQUIREMENTS.  WALLING V.
HELMERICH & PAYNE, INC., SUPRA; WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD
CO., SUPRA; WALLING V. HARNISCHFEGER CORP., 325 U.S. 427(1945). 
AFFIRMED. 

FN1  52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. INSOFAR AS PERTINENT,
SEC. 7(A) PROVIDES: 

"NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION,
EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE - 

     .         .         .         .         . 

"(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED
AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT
WHICH HE IS EMPLOYED." 


"ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 6 OR SECTION 7
OF THIS ACT SHALL BE LIABLE TO THE EMPLOYEE OR EMPLOYEES AFFECTED IN
THE AMOUNT OF THEIR UNPAID MINIMUM WAGES, OR THEIR UNPAID OVERTIME
COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL EQUAL AMOUNT AS
LIQUIDATED DAMAGES.  ...  " 

FN2  PETITIONERS HAVE RAISED NO OBJECTION AS TO THE AMOUNT OF THE
RECOVERY ALLOWED THE RESPONDENTS BY THE DISTRICT COURT IF IT BE ASSUMED
THAT THE LOWER COURTS OTHERWISE CORRECTLY DETERMINED THEIR LIABILITY. 

FN3  THE SLOAN AGREEMENT WAS NEGOTIATED BETWEEN THE REALTY ADVISORY
BOARD ON LABOR RELATIONS, INCORPORATED, AS AGENT FOR VARIOUS OWNERS OF
LOFT, OFFICE AND APARTMENT BUILDINGS LOCATED IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK, AND LOCAL 32-B OF THE BUILDING
SERVICE EMPLOYEES INTERNATIONAL UNION ON BEHALF OF ITS MEMBERS.  THE
SAME PARTIES NEGOTIATED THE AGREEMENT IN QUESTION. 

FN4  IN CASE OF AN EMPLOYEE HIRED FOR A REGULAR 46 HOUR WEEK AT A
WEEKLY WAGE OF $27.50, THE "HOURLY RATE" WAS DERIVED FROM THE FORMULA
BY MEANS OF THE FOLLOWING CALCULATION:  $27.50/(46 1/2(46 - 40))
$.561 PER HOUR.  IN EFFECT, THE FORMULA RATE IS OBTAINED, NOT BY
DIVIDING THE WEEKLY WAGE BY 46, THE NUMBER OF HOURS SCHEDULED TO BE
WORKED, BUT BY DIVIDING THAT SUM BY 49, A DIVISOR DETERMINED BY THE
FORMULA.  IN THE CASE OF A WATCHMAN HIRED FOR A 54 HOUR WEEK AT THE
SAME WEEKLY WAGE, THE FORMULA RATE WAS DETERMINED BY THIS CALCULATION:
$27.50/(54   1/2(54 - 40)) $.4508 PER HOUR. 

FN5  THE AGREEMENT MADE NO SPECIFIC PROVISION FOR SITUATIONS
INVOLVING UNEXCUSED ABSENCES.  THE ABOVE-DESCRIBED PROCEDURE SEEMS TO
HAVE BEEN APPLIED IN PRACTICE, HOWEVER. 

FN6  THUS THE EMPLOYEE ANDERSON WORKED ONLY 39 HOURS IN THE WEEK OF
FEB. 14, 1943, THE 7 HOURS OF ABSENCE APPARENTLY BEING DUE TO AN
"EXCUSABLE CAUSE."  UNDER THE AGREEMENT, WHICH WOULD ENTITLE HIM TO SIX
HOURS OF "OVERTIME" PAY, HE SHOULD HAVE RECEIVED WEEKLY COMPENSATION IN
THE AMOUNT OF $23.56.  THE ACTUAL AVERAGE HOURLY RATE DURING THAT WEEK
ACCORDINGLY WOULD BE $.604.  IF ANDERSON HAD BEEN PAID ON AN HOURLY
BASIS DETERMINED BY DIVIDING THE WEEKLY WAGE PAID FOR A SCHEDULED
WORKWEEK BY THE NUMBER OF HOURS IN SUCH WORKWEEK, HE WOULD HAVE
RECEIVED $.598, WHEREAS, HAD HE BEEN PAID THE STRAIGHT FORMULA RATE HE
WOULD HAVE RECEIVED $.561 PER HOUR.  SO ALSO, THE PETITIONER PETERSON
IN THE WEEK OF DEC. 13, 1942, WAS ABSENT 16 HOURS FOR EXCUSABLE
CAUSES.  THE PAYROLL RECORDS REVEAL HE EARNED $18.50 OR AN ACTUAL
AVERAGE HOURLY RATE OF $.617 AS COMPARED TO $.598, THE AVERAGE RATE FOR
A SCHEDULED WORKWEEK, AND TO $.561, THE FORMULA RATE. 

FN7  IN THE CASE OF WATCHMEN, WHO WERE ASSIGNED A SCHEDULED WEEK OF
54 HOURS, TWICE THE FORMULA RATE WAS PAID FOR HOURS WORKED IN EXCESS OF
54. 

FN8  THUS IF AN EMPLOYEE HIRED FOR A REGULAR WORKWEEK OF 46 HOURS AT
$27.50 WORKED 50 HOURS IN ONE WEEK, HIS TOTAL WEEKLY COMPENSATION WOULD
AMOUNT TO $31.43 IF COMPENSATED IN ACCORDANCE WITH THE TERMS OF THE
AGREEMENT.  IF, INSTEAD, THE EMPLOYEE WERE HIRED ON A STRAIGHT WEEKLY
BASIS AT THE SAME WEEKLY WAGE WITH PROVISION FOR TIME AND ONE-HALF THE
AVERAGE HOURLY RATE, FOR HOURS WORKED IN EXCESS OF 46, HE WOULD RECEIVE
$31.09 AS TOTAL WEEKLY COMPENSATION FOR 50 HOURS OF WORK.  IF A
WATCHMAN, SCHEDULED TO WORK A 54-HOUR WEEK AT $27.50 ACTUALLY WORKED 58
HOURS HE WOULD RECEIVE $31.11 WEEKLY COMPENSATION IF CALCULATED
ACCORDING TO THE AGREEMENT, OR $30.55 IF CALCULATED ON A STRAIGHT
WEEKLY BASIS WITH TIME AND ONE-HALF FOR HOURS WORKED IN EXCESS OF 54. 

FN9  THE AGREEMENT IN QUESTION ALSO CONTAINED THE FOLLOWING
PROVISION:  "PER DIEM RATES OF PAY OF ANY EMPLOYEE SHALL BE ARRIVED AT
BY DIVIDING THE APPLICABLE WEEKLY WAGE BY THE NORMAL NUMBER OF DAYS PER
WEEK WORKED BY THAT EMPLOYEE IN THE BUILDING IN QUESTION."  THIS
PROVISION IS OBVIOUSLY AT ODDS WITH THE STATEMENT IN THE AGREEMENT THAT
THE WEEKLY WAGE STIPULATED FOR A SCHEDULED WORKWEEK INCLUDED BOTH
REGULAR PAY AND OVERTIME FOR HOURS WORKED OVER 40.  THERE IS NOTHING IN
THE RECORD, HOWEVER, TO INDICATE THAT THE PER DIEM PROVISIONS WERE
ACTUALLY APPLIED.  PETITIONER EXPLAINS ITS PRESENCE IN THE AGREEMENT AS
AN INADVERTENT HOLD-OVER FROM THE EARLIER SLOAN AGREEMENT. 

FN10  SEE NOTE 5 SUPRA. 

FN11  A SOMEWHAT SIMILAR SITUATION PREVAILED WITH RESPECT TO AN
INCREASE OF $1.40 IN THE WEEKLY WAGE GRANTED ON OCTOBER 10, 1943, AND
MADE RETROACTIVE TO APRIL 21, 1943.  IT APPEARS THAT PETITIONERS MADE
SOME EFFORT TO MAKE ADJUSTMENTS CONSISTENT WITH THE FORMULA IN PAYMENT
TO EMPLOYEES WHO HAD WORKED HOURS IN EXCESS OF THE SCHEDULED WORKWEEK. 
IT IS CONCEDED, HOWEVER, THAT NO SUCH ADJUSTMENTS WERE MADE WITH
RESPECT TO THOSE WHO WORKED LESS THAN THEIR SCHEDULED HOURS IN WEEKS
DURING THE RETROACTIVE PERIOD, SUCH EMPLOYEES BEING PAID THE FULL
WEEKLY INCREASE FOR EACH WEEK EMPLOYED REGARDLESS OF HOURS ACTUALLY
WORKED. 

(NOTE:  BY AN ORDER OF THE COURT ANNOUNCED ON JUNE 16, 1947, POST, P.
795, THE JUDGMENT IN THIS CASE WAS MODIFIED SO AS TO PROVIDE THAT THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT WITH AUTHORITY IN THAT COURT TO CONSIDER
ANY MATTERS PRESENTED TO IT UNDER THE PORTAL-TO-PORTAL ACT OF 1947,
APPROVED MAY 14, 1947.) 
..END :























COMMISSIONER V. MUNTER, 331 U.S. 210 


ARGUED APRIL 10, 1947.  - DECIDED MAY 5, 1947.  - 157 F.2D 132,
REVERSED. 


1.  UNDER INTERNAL REVENUE CODE SECS. 22(A), 115(A), (B), UPON A
REORGANIZATION OF TWO CORPORATIONS INTO A NEW CORPORATION, ACCUMULATED
EARNINGS AND PROFITS OF THE PREDECESSOR CORPORATIONS WHICH ARE
UNDISTRIBUTED IN THE REORGANIZATION ARE DEEMED TO BE ACQUIRED BY THE
SUCCESSOR CORPORATION AND UPON DISTRIBUTION BY IT ARE TAXABLE AS
INCOME, NOTWITHSTANDING THE PARTICIPATION OF NEW INVESTORS IN THE
SUCCESSOR CORPORATION.  PP. 215-216. 

2.  TO WHAT EXTENT THE ACCUMULATED EARNINGS AND PROFITS OF THE
PREDECESSOR CORPORATIONS HAVE BEEN RETAINED BY THE SUCCESSOR IN THIS
CASE IS FOR THE TAX COURT TO DETERMINE UPON A FACTUAL ANALYSIS.  PP.
216-217. 

COMMISSIONER OF INTERNAL REVENUE V. MUNTER. 

NO. 674.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT.* 

*TOGETHER WITH NO. 675, COMMISSIONER OF INTERNAL REVENUE V. MUNTER,
ALSO ON CERTIORARI TO THE SAME COURT. 

THE TAX COURT SUSTAINED THE COMMISSIONER'S DETERMINATION OF
DEFICIENCIES IN RESPONDENTS' INCOME TAXES.  5 T.C. 108.  THE CIRCUIT
COURT OF APPEALS REVERSED.  157 F.2D 132.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 709.  REVERSED AND REMANDED, P. 217. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE COMMISSIONER ASSESSED DEFICIENCIES AGAINST RESPONDENTS FOR
FAILURE TO REPORT AS 1940 INCOME DIVIDENDS PAID TO THEM ON STOCK OF
CRANDALL-MCKENZIE & HENDERSON, INC., WHICH RESPONDENTS HAD BOUGHT
EARLIER IN THAT YEAR.  FN1  THESE DIVIDENDS ARE TAXABLE AS INCOME TO
THE RESPONDENTS IF THE CORPORATION PAID THEM OUT OF ITS EARNINGS AND
PROFITS.  INT. REV. CODE SECS. 22(A), 115(A), (B).  SINCE ITS
ORGANIZATION IN 1928, THE CORPORATION HAD NOT ACCUMULATED EARNINGS AND
PROFITS SUFFICIENT TO PAY THE 1940 DIVIDEND IN FULL.  FN2  BUT THE
COMMISSIONER FOUND THAT THE TWO OLD CORPORATIONS WHICH WERE MERGED IN
1928 TO FORM THIS NEW CORPORATION HAD AT THAT TIME, AND TURNED OVER TO
THE NEW CORPORATION, ACCUMULATED EARNINGS AND PROFITS SUFFICIENT TO
COVER THESE DIVIDENDS.  ONE OF THESE OLD CORPORATIONS, L. HENDERSON &
SONS, INC., HAD ABOUT $75,000 IN EARNINGS AND PROFITS ACCUMULATED SINCE
1913; THE OTHER, CRANDALL-MCKENZIE COMPANY, HAD ABOUT $330,000. 
LIABILITY OF RESPONDENTS FOR THESE DEFICIENCIES DEPENDS UPON WHETHER
THE NEW CORPORATION ACQUIRED AND RETAINED A SUFFICIENT AMOUNT OF THESE
EARNINGS AND PROFITS OF ITS PREDECESSORS TO COVER THE 1940 DIVIDENDS. 

THE 1928 MERGER TOOK PLACE UNDER THE FOLLOWING CIRCUMSTANCES. 
STOCKHOLDERS OF HENDERSON AND CERTAIN STOCKHOLDERS OF CRANDALL-MCKENZIE
AGREED TOGETHER WITH A FIRM OF UNDERWRITERS TO EFFECT A MERGER OF THE
TWO CORPORATIONS INTO A NEW ONE.  THE UNDERWRITERS AGREED TO BUY FOR
CASH 52% OF THE STOCK OF THE NEW CORPORATION FOR PUBLIC SALE.  IN
EXECUTION OF THIS AGREEMENT THE NEW CORPORATION WAS FORMED AND ACQUIRED
ALL THE ASSETS OF HENDERSON AND CRANDALL-MCKENZIE.  THE SIX
STOCKHOLDERS OF HENDERSON ACCEPTED STOCK IN THE NEW CORPORATION AS FULL
PAYMENT FOR SURRENDERING THEIR OLD COMPANY STOCK.  HOLDERS OF NEARLY
ONE-HALF OF THE STOCK OF OLD CRANDALL-MCKENZIE DID NOT ACCEPT NEW
CORPORATION STOCK BUT WERE PAID SOME $355,000 IN CASH FOR THEIR OLD
STOCK.  FN3  THE OTHER OLD CRANDALL-MCKENZIE STOCKHOLDERS WERE
SATISFIED TO ACCEPT ONLY NEW CORPORATION STOCK.  WHEN THE
REORGANIZATION WAS COMPLETE THE NEW CORPORATION STOCK HAD BEEN
DISTRIBUTED AS FOLLOWS:  14,607 SHARES TO OLD CRANDALL-MCKENZIE
STOCKHOLDERS, 9,524 SHARES TO OLD HENDERSON STOCKHOLDERS, AND 25,869
SHARES TO THE GENERAL PUBLIC THROUGH THE PARTICIPATING UNDERWRITERS. 

THE TAX COURT FOUND THAT THERE WAS A FAILURE OF PROOF THAT THE
EARNINGS AND PROFITS OF THE OLD CORPORATIONS HAD BEEN DISTRIBUTED IN
1928.  RELYING UPON THE RULE OF COMMISSIONER V. SANSOME, 60 F.2D 931,
WHICH, FOR TAX PURPOSES, TREATS A REORGANIZED CORPORATION AS BUT A
CONTINUATION OF ITS PREDECESSORS, THE TAX COURT DETERMINED THAT THE NEW
CORPORATION ACQUIRED ALL THE EARNINGS AND PROFITS OF ITS PREDECESSORS
IN 1928.  THEN, WITHOUT ANALYZING THE EARNINGS AND DISTRIBUTION HISTORY
OF THE NEW CORPORATION AFTER ITS INCEPTION IN 1928 AND PRIOR TO THE
1940 DISTRIBUTION, THE TAX COURT CONCLUDED THAT THE NEW CORPORATION'S
ACCUMULATED EARNINGS AND PROFITS WERE SUFFICIENT IN 1940 TO MAKE THE
QUESTIONED DIVIDENDS TAXABLE TO RESPONDENTS AS INCOME.  5 T.C. 108. 
THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT REVERSED, 157 F.2D
132, FOLLOWING ITS EARLIER DECISION IN CAMPBELL V. UNITED STATES, 144
F.2D 177, WHICH HAD NARROWLY LIMITED THE SANSOME RULE.  THE THEORY OF
THE CAMPBELL DECISION, SO FAR AS RELEVANT TO THE ONLY QUESTION DIRECTLY
PRESENTED HERE, WAS THAT CHANGE IN OWNERSHIP BROUGHT ABOUT BY THE
PARTICIPATION OF NEW INVESTORS IN THE REORGANIZATION MADE THE NEW
CORPORATION SUCH AN ENTIRELY DIFFERENT ENTITY THAT IT COULD NOT
PROPERLY BE CALLED, EVEN FOR TAX PURPOSES, A CONTINUATION OF ITS
PREDECESSORS.  FN4  THUS, IT WAS CONCLUDED, EARNINGS AND PROFITS OF THE
PREDECESSORS WERE NOT ACQUIRED BY THE NEW CORPORATION. 

WE GRANTED CERTIORARI BECAUSE OF AN ALLEGED CONFLICT WITH THE SANSOME
RULE.  329 U.S. 709.  IN THE STATE OF THE RECORD PRESENTED WE FIND IT
NECESSARY TO DECIDE NO MORE THAN WHETHER THE DISTINCTION OF THE SANSOME
RULE MADE BY THE CAMPBELL CASE IS CORRECT. 

A BASIC PRINCIPLE OF THE INCOME TAX LAWS HAS LONG BEEN THAT CORPORATE
EARNINGS AND PROFITS SHOULD BE TAXED WHEN THEY ARE DISTRIBUTED TO THE
STOCKHOLDERS WHO OWN THE DISTRIBUTING CORPORATION.  SEE INT. REV. CODE
SECS. 22, 115(A), (B).  THE CONTROLLING REVENUE ACTS IN QUESTION,
HOWEVER, EXEMPT FROM TAXATION DISTRIBUTIONS OF STOCK AND MONEY
DISTRIBUTIONS, AT LEAST IN PART, MADE PURSUANT TO A REORGANIZATION SUCH
AS TRANSPIRED HERE IN 1928.  SEE REVENUE ACT OF 1928, SEC. 112(B), (C),
(I)(1)(A); SEC. 115(C), (H), 45 STAT. 791, 816-818, 822-823.  THUS
UNLESS THOSE EARNINGS AND PROFITS ACCUMULATED BY THE PREDECESSOR
CORPORATIONS AND UNDISTRIBUTED IN THIS REORGANIZATION ARE DEEMED TO
HAVE BEEN ACQUIRED BY THE SUCCESSOR CORPORATION AND TAXABLE UPON
DISTRIBUTION BY IT, THEY WOULD ESCAPE THE TAXATION WHICH CONGRESS
INTENDED.  SEE SEC. 112(H), REVENUE ACT OF 1928; MURCHISON'S ESTATE V.
COMMISSIONER, 76 F.2D 641; UNITED STATES V. KAUFFMANN, 62 F.2D 1045. 

IN COMMISSIONER V. SANSOME, SUPRA, IT WAS HELD THAT IMPLICIT IN THE
TAX EXEMPTION OF REORGANIZATION DISTRIBUTIONS WAS THE UNDERSTANDING
THAT THE EARNINGS AND PROFITS SO EXEMPT WERE ACQUIRED BY THE NEW
CORPORATION AND WERE TAXABLE AS INCOME TO STOCKHOLDERS WHEN
SUBSEQUENTLY DISTRIBUTED.  CONGRESS HAS REPEATEDLY EXPRESSED ITS
APPROVAL OF THE SO-CALLED SANSOME RULE AS A CORRECT INTERPRETATION OF
THE PURPOSE OF THE TAX LAWS GOVERNING REORGANIZATIONS.  FN5  AND
CONGRESS HAS APPARENTLY BEEN SATISFIED WITH TREASURY REGULATIONS WHICH
FOLLOW THE SANSOME DOCTRINE.  FN6 

OF COURSE, WHEN, AS IN THE SANSOME CASE, ALL THE STOCKHOLDERS OF THE
OLD CORPORATION SWAP ALL THEIR OLD STOCK FOR IDENTICAL PROPORTIONS OF
THE NEW, THERE CAN BE NO DOUBT THAT THE EARNINGS AND PROFITS OF THE OLD
HAVE NOT BEEN DISTRIBUTED AND ARE PASSED ON TO THE SUCCESSOR
CORPORATION.  BUT IF THE PREDECESSORS' EARNINGS AND PROFITS ARE NOT
DISTRIBUTED IN THE COURSE OF THE REORGANIZATION, THEY DO NOT DISAPPEAR
SIMPLY BECAUSE THE SUCCESSOR CORPORATION HAS SOME ASSETS AND OWNERS IN
ADDITION TO THOSE OF THE OLD CORPORATION OR CORPORATIONS.  SEE PUTNAM
V. UNITED STATES, 149 F.2D 721, 726.  THE CONGRESSIONAL PURPOSE TO TAX
ALL STOCKHOLDERS WHO RECEIVE DISTRIBUTIONS OF CORPORATE EARNINGS AND
PROFITS CANNOT BE FRUSTRATED BY ANY REORGANIZATION WHICH LEAVES
EARNINGS AND PROFITS UNDISTRIBUTED IN WHOLE OR IN PART.  INSOFAR AS
ACCUMULATED EARNINGS AND PROFITS HAVE BEEN DISTRIBUTED
CONTEMPORANEOUSLY WITH THE REORGANIZATION SO AS TO BECOME TAXABLE TO
THE DISTRIBUTEES, THEY, OF COURSE, CANNOT BE SAID TO HAVE BEEN ACQUIRED
BY THE SUCCESSOR CORPORATION.  BUT INSOFAR AS PAYMENTS TO THE
PREDECESSOR CORPORATIONS OR THEIR STOCKHOLDERS DO NOT ACTUALLY
REPRESENT TAXABLE DISTRIBUTIONS OF EARNINGS AND PROFITS, THOSE EARNINGS
AND PROFITS MUST BE DEEMED TO HAVE BECOME AVAILABLE FOR TAXABLE
DISTRIBUTION BY THE SUCCESSOR CORPORATION. 

IT WOULD BE INAPPROPRIATE FOR US TO MAKE THE FACTUAL ANALYSIS OF THIS
RECORD NECESSARY TO TRACE THE EARNINGS AND PROFITS INVOLVED IN THE 1928
REORGANIZATION IN THE ABSENCE OF SUCH A DETERMINATION BY THE TAX COURT
AND REVIEW BY THE CIRCUIT COURT OF APPEALS.  SEE HELVERING V. RANKIN,
295 U.S. 123, 131-132; HELVERING V. SAFE DEPOSIT & TRUST CO., 316 U.S.
56, 66-67; COMMISSIONER V. SCOTTISH AMERICAN INVESTMENT CO., 323 U.S.
119, 124.  IT MIGHT BE THAT UPON A FULL FACTUAL ANALYSIS THE TAX COURT
WOULD CONCLUDE THAT THE NEW CORPORATION ACQUIRED AND HAD RETAINED
EARNINGS AND PROFITS OF HENDERSON SUFFICIENT TO COVER THE 1940
DISTRIBUTION.  OR THE TAX COURT MAY FIND IT NECESSARY TO MAKE FURTHER
ANALYSIS OF THE 1928 DISTRIBUTIONS TO CRANDALL-MCKENZIE'S OLD
STOCKHOLDERS.  IN THIS CONNECTION IT IS URGED THAT THE CASH PAID FOR
PART OF THE CRANDALL-MCKENZIE STOCK IN 1928 CONSTITUTED A TAXABLE
DISTRIBUTION OF SOME OR ALL OF THE ACCUMULATED EARNINGS AND PROFITS. 
THE TAX COURT, HOWEVER, HAS PREVIOUSLY DECLINED TO CONSIDER THESE CASH
PAYMENTS AS SUCH A DISTRIBUTION OF EARNINGS AND PROFITS IN THE ABSENCE
OF PROOF THAT THE RECIPIENTS HAD BEEN TAXED FOR THEM.  BUT EVEN IF IT
WERE PROVED THAT OLD CRANDALL-MCKENZIE STOCKHOLDERS HAD BEEN SO TAXED,
THE FACE AMOUNT OF THAT TAX WOULD NOT NECESSARILY REFLECT THE EARNINGS
AND PROFITS DISTRIBUTION THEY RECEIVED.  FOR EXAMPLE, PART OR ALL OF
THEIR TAX MAY HAVE REPRESENTED CAPITAL GAIN AS DISTINGUISHED FROM
EARNINGS AND PROFITS.  FN7  OR THE DISTRIBUTION MAY BE FOUND TO HAVE
CONSTITUTED A LIQUIDATION UNDER SEC. 115 OF THE REVENUE ACT OF 1928. 
FN8  IT MAY BE NECESSARY ON REMAND, THEREFORE, FOR THE TAX COURT TO
CONSIDER, IN THE LIGHT OF SECS. 112(C) AND 115 OF THE REVENUE ACT OF
1928, HOW MUCH, IF ANY, OF THE 1928 CASH DISTRIBUTION TO CRANDALL
MCKENZIE STOCKHOLDERS REPRESENTED EARNINGS AND PROFITS DEDUCTIBLE FROM
THE EARNINGS AND PROFITS TRANSFERRED TO THE NEW CORPORATION AVAILABLE
FOR THE 1940 DIVIDEND PAYMENTS. 

THE DECISION OF THE CIRCUIT COURT OF APPEALS IS REVERSED WITH
DIRECTIONS THAT THE CAUSE BE REMANDED TO THE TAX COURT FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  SO ORDERED. 

FN1  THE TAX COURT INCORPORATED BY REFERENCE A FACT STIPULATION OF
THE PARTIES AS ITS FINDING OF FACT.  EACH OF THE RESPONDENTS HAD BOUGHT
10,000 SHARES OF THE 38,922 SHARES OF THE CORPORATION THEN
OUTSTANDING.  THE DIVIDENDS DECLARED IN 1940 AMOUNTED TO $35,166.25, OF
WHICH EACH OF THE TAXPAYERS RECEIVED $12,500. 

FN2  AT ONE POINT IN THE STIPULATION IT WAS INDICATED THAT THE NEW
CORPORATION HAD "NO EARNINGS OR PROFITS ACCUMULATED FROM DECEMBER 4,
1928 TO DECEMBER 31, 1939," AND NO EARNINGS OR PROFITS IN THE TAXABLE
YEAR 1940.  BUT ELSEWHERE IN THE STIPULATION IT APPEARS THERE MAY HAVE
BEEN SOME $32,000 EARNINGS AND PROFITS ACCUMULATED BETWEEN 1928 AND
1940.  THE TAX COURT APPARENTLY DID NOT RESOLVE THESE CONTRADICTORY
STATEMENTS. 

FN3  SOME OF THE CRANDALL-MCKENZIE STOCKHOLDERS WERE PAID $356.00
PLUS PER SHARE; OTHERS WERE PAID $315.53 PER SHARE FOR IDENTICAL
STOCK. 

A PART OF THE OLD CRANDALL-MCKENZIE STOCK FOR WHICH CASH WAS PAID WAS
BOUGHT FOR $300,000 CASH BY ONE OLD CRANDALL-MCKENZIE STOCKHOLDER FROM
ANOTHER WHILE THE REORGANIZATION WAS BEING TRANSACTED.  THE STOCKHOLDER
WHO MADE THIS PURCHASE THEREUPON SURRENDERED HIS ORIGINAL CRANDALL
MCKENZIE HOLDINGS, TOGETHER WITH HIS RECENTLY PURCHASED SHARES, TO THE
NEW CORPORATION IN EXCHANGE FOR SHARES IN THE NEW CORPORATION AND
$300,000 CASH.  WE DO NOT DECIDE WHETHER THE SALE FROM ONE OLD
STOCKHOLDER TO ANOTHER REPRESENTS A TRANSACTION SEPARATE FROM THE
REORGANIZATION.  WHATEVER MAY BE THE ULTIMATE SIGNIFICANCE OF THIS
POINT, IT DOES NOT AFFECT THE RESULT WE REACH HERE. 

FN4  THERE WERE TWO INDEPENDENT GROUNDS FOR THE DECISION IN THE
CAMPBELL CASE.  ONE GROUND WAS THAT THE EARNINGS AND PROFITS OF THE
PREDECESSOR CORPORATION THERE HAD ACTUALLY BEEN DISTRIBUTED IN THE
COURSE OF THE REORGANIZATION.  THE CIRCUIT COURT OF APPEALS STATED
EXPRESSLY THAT IT DID NOT REST ITS DECISION IN THE INSTANT CASE ON THIS
THEORY. 

FN5  THE SENATE COMMITTEE RECOMMENDING ADOPTION OF SEC. 115(H) OF THE
REVENUE ACT OF 1936 CITED THE SANSOME CASE WITH APPROVAL.  IT DESCRIBED
THE NEW SECTION AS NOT CHANGING "EXISTING LAW."  THE COMMITTEE
RECOMMENDED THE AMENDMENT ONLY "IN THE INTEREST OF GREATER CLARITY." 
S. REP. NO. 2156, 74TH CONG., 2D SESS. (1936) 19.  SEE ALSO SEC. 115(H)
REVENUE ACT 1938, 52 STAT. 447; H.R. REP. 2894, 76TH CONG., 3D SESS.
(1940) 41; S. REP. 2114, 76TH CONG., 3D SESS. (1940) 25. 

FN6  U.S. TREAS. REG. 94, ART. 115-11(1936); U.S. TREAS. REG. 103,
SEC. 19.115-11(1940).  SEE TAFT V. COMMISSIONER, 304 U.S. 351, 357;
HELVERING V. WINMILL, 305 U.S. 79, 83; DOUGLAS V. COMMISSIONER, 322
U.S. 275, 281-282; BOEHM V. COMMISSIONER, 326 U.S. 287, 291-292. 

FN7  SECTION 112(C)(1) OF THE REVENUE ACT OF 1928 PROVIDES IN EFFECT
IF A CASH OR PROPERTY DISTRIBUTION IS MADE IN THE COURSE OF A
REORGANIZATION "THEN THE GAIN, IF ANY, TO THE RECIPIENT SHALL BE
RECOGNIZED, BUT IN AN AMOUNT NOT IN EXCESS OF THE SUM OF SUCH MONEY AND
THE FAIR MARKET VALUE OF SUCH OTHER PROPERTY."  BUT SEC. 112(C)(2)
MAKES TAXABLE AS DIVIDEND INCOME THAT PORTION OF THE GAIN WHICH
REPRESENTS THE DISTRIBUTEE'S SHARE OF THE DISTRIBUTING CORPORATION'S
EARNINGS AND PROFITS. 

FN8  SECTION 115(C) OF THE REVENUE ACT OF 1928 GOVERNS THE TAXABILITY
OF DISTRIBUTIONS IN LIQUIDATION. 
..END :













RICE V. SANTA FE ELEVATOR CORP., 331 U.S. 218 


ARGUED FEBRUARY 13, 14, 1947.  - DECIDED MAY 5, 1947.  - 156 F.2D 33,
AFFIRMED IN PART, REVERSED IN PART. 


1.  BY THE 1931 AMENDMENTS TO SECS. 6 AND 29 OF THE UNITED STATES
WAREHOUSE ACT, CONGRESS TERMINATED THE DUAL SYSTEM OF REGULATION
PROVIDED BY THE ORIGINAL ACT AND SUBSTITUTED AN EXCLUSIVE SYSTEM OF
FEDERAL REGULATION OF WAREHOUSES LICENSED UNDER THE FEDERAL ACT WITH
REFERENCE TO THE SUBJECTS COVERED THEREBY, EXCEPT TO THE EXTENT THAT
EXPRESS EXCEPTIONS IN THE FEDERAL ACT SUBJECT CERTAIN PHASES OF THE
BUSINESS TO STATE REGULATION.  PP. 229-236, P. 234, N. 12. 

2.  WAREHOUSES LICENSED UNDER THE UNITED STATES WAREHOUSE ACT NEED
NOT OBTAIN STATE LICENSES OR COMPLY WITH STATE LAWS REGULATING THOSE
PHASES OF THE BUSINESS WHICH ARE REGULATED UNDER THE FEDERAL ACT,
EXCEPT THOSE PHASES OF THE BUSINESS WHICH THE FEDERAL ACT EXPRESSLY
SUBJECTS TO STATE LAW.  PP. 234-236, P. 234, N. 12. 

3.  AS AMENDED, THE FEDERAL ACT IS NOT MERELY PARAMOUNT OVER STATE
LAW IN THE EVENT OF CONFLICT, BUT COMPLETELY SUPERSEDES THE STATE LAW,
EXCEPT TO THE EXTENT THAT IT FAILS TO COVER THE FIELD OR MAKES EXPRESS
EXCEPTIONS IN FAVOR OF STATE LAW.  PP. 234-236, P. 234, N. 12. 

4.  THE TEST OF APPLICABILITY OF STATE LAWS IS WHETHER THE MATTER ON
WHICH THE STATE ASSERTS THE RIGHT TO ACT IS IN ANY WAY REGULATED BY THE
FEDERAL ACT.  IF IT IS, THE FEDERAL SCHEME PREVAILS THOUGH IT IS A MORE
MODEST, LESS PERVASIVE REGULATORY PLAN THAN THAT OF THE STATE.  P.
236. 

5.  BY THIS TEST, EACH OF THE FOLLOWING MATTERS IS BEYOND THE REACH
OF STATE LAW, SINCE CONGRESS HAS DECLARED ITS POLICY WITH REFERENCE TO
THEM IN THE UNITED STATES WAREHOUSE ACT (P. 236): 

(1)  JUST AND REASONABLE RATES.  PP. 224, 236. 

(2)  DISCRIMINATION.  PP. 225, 236. 

(3)  DUAL POSITION OF WAREHOUSEMEN.  PP. 225, 236. 

(4)  MIXING HIGH QUALITY PUBLIC GRAIN WITH INFERIOR GRAIN OWNED BY
WAREHOUSEMAN, DELAY IN LOADING GRAIN.  PP. 226, 236. 

(5)  SACRIFICING OR REBATING STORAGE CHARGES, RETAINING DESIRABLE
TRANSIT TONNAGE, UTILIZING PREFERRED STORAGE SPACE.  PP. 227, 236. 

(6)  MAINTENANCE OF UNSAFE AND INADEQUATE ELEVATORS; INADEQUATE AND
INEFFICIENT WAREHOUSE SERVICE.  PP. 227, 236. 

(7)  OPERATING WITHOUT A STATE LICENSE.  PP. 228, 236. 

(8)  ABANDONMENT OF WAREHOUSING SERVICE.  PP. 228, 236. 

(9)  FAILURE TO FILE AND PUBLISH RATE SCHEDULES; RENDERING
WAREHOUSING SERVICE WITHOUT FILING AND PUBLISHING SCHEDULES.  PP. 229,
236. 

6.  IN THE ABSENCE OF ANY ACTUAL CONFLICT WITH THE FEDERAL ACT, THE
STATES ARE FREE TO CONTINUE TO REGULATE MATTERS WHICH ARE NOT REGULATED
BY THE FEDERAL ACT, E.G.: 

(1)  FAILURE TO SECURE PRIOR APPROVAL OF STATE OFFICIALS FOR
MANAGEMENT, CONSTRUCTION, ENGINEERING, SUPPLY, FINANCIAL AND OTHER
CONTRACTS BETWEEN THE WAREHOUSEMAN AND ITS AFFILIATES.  P. 236. 

(2)  FAILURE TO SECURE PRIOR APPROVAL OF CONTRACTS AND LEASES BETWEEN
THE WAREHOUSEMAN AND OTHER PUBLIC UTILITIES.  PP. 236-237. 

(3)  FAILURE TO SECURE APPROVAL OF ISSUANCE OF SECURITIES.  PP. 236
237. 

RICE ET AL. V. SANTA FE ELEVATOR CORP. ET AL. 

NO. 470.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT* . 

*TOGETHER WITH NO. 472, ILLINOIS COMMERCE COMMISSION ET AL. V. SANTA
FE ELEVATOR CORP. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

A DISTRICT COURT DISMISSED SUITS BROUGHT BY A WAREHOUSEMAN LICENSED
UNDER THE UNITED STATES WAREHOUSE ACT TO ENJOIN FURTHER PROCEEDINGS ON
A COMPLAINT FILED BY ONE OF HIS CUSTOMERS WITH THE ILLINOIS COMMERCE
COMMISSION ALLEGING VIOLATIONS OF THE ILLINOIS PUBLIC UTILITIES ACT,
ILL. REV. STATS. 1945, CH. 111 2/3, THE ILLINOIS GRAIN WAREHOUSE ACT,
ILL. REV. STATS. 1945, CH. 114, SECS. 189 ET SEQ., AND ART. XIII OF THE
ILLINOIS CONSTITUTION, AND TO ENJOIN THE ATTORNEY GENERAL OF ILLINOIS
FROM INSTITUTING PROCEEDINGS AGAINST THE WAREHOUSEMAN TO ENFORCE ANY
ORDER OF THE COMMISSION IN THE MATTER.  THE CIRCUIT COURT OF APPEALS
REVERSED, ON THE GROUND THAT THE UNITED STATES WAREHOUSE ACT SUPERSEDED
STATE REGULATION OF WAREHOUSEMEN LICENSED THEREUNDER AS TO THE MATTERS
PRESENTED IN THE COMPLAINT.  156 F.2D 33.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 701.  THE WRITS WERE DISMISSED AS TO CERTAIN
PARTIES INCLUDING THE GREAT LAKES ELEVATOR CORPORATION.  330 U.S. 810. 
AFFIRMED IN PART, REVERSED IN PART AND REMANDED, P. 238. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BLACK. 

RESPONDENTS IN THESE TWO CASES ARE WAREHOUSEMEN ENGAGED IN THE
BUSINESS OF OPERATING PUBLIC WAREHOUSES FOR THE STORAGE OF GRAIN IN
ILLINOIS.  THEIR WAREHOUSES ARE OPERATED UNDER LICENSES ISSUED BY THE
SECRETARY OF AGRICULTURE PURSUANT TO THE UNITED STATES WAREHOUSE ACT,
39 STAT. 486, AS AMENDED, 7 U.S.C. SEC. 241 ET SEQ. THE RICE
PARTNERSHIP, ONE OF THE PETITIONERS, IS AN OWNER, SHIPPER, AND DEALER
IN GRAIN AND IS A CUSTOMER OF RESPONDENTS.  THE ILLINOIS COMMERCE
COMMISSION, ANOTHER PETITIONER, HAS CERTAIN REGULATORY JURISDICTION, TO
WHICH WE WILL LATER REFER, OVER PUBLIC GRAIN WAREHOUSES AND OTHER
PUBLIC UTILITY COMPANIES. 

IN 1944 RICE FILED A COMPLAINT WITH THE COMMISSION, CHARGING
RESPONDENTS  FN1  WITH MAINTAINING UNJUST, UNREASONABLE, AND EXCESSIVE
RATES AND CHARGES CONTRARY TO THE ILLINOIS PUBLIC UTILITIES ACT, ILL.
REV. STATS. 1945, CH. 111 2/3.  IT CHARGED THEM WITH DISCRIMINATION IN
STORAGE RATES IN FAVOR OF THE FEDERAL GOVERNMENT AND ITS AGENCIES AND
AGAINST OTHER CUSTOMERS, CONTRARY TO THE PUBLIC UTILITIES ACT AND THE
ILLINOIS GRAIN WAREHOUSE ACT, ILL. REV. STATS. 1945, CH. 114, SEC. 189
ET SEQ. IT ALLEGED THAT RESPONDENTS WERE BOTH WAREHOUSEMEN AND DEALERS
IN GRAIN AND BY REASON OF THOSE DUAL AND CONFLICTING POSITIONS HAD
RECEIVED UNDUE PREFERENCES AND ADVANTAGES TO THE DETRIMENT OF AND IN
DISCRIMINATION AGAINST PETITIONERS AND OTHER CUSTOMERS OF RESPONDENTS,
FN2  ALL IN VIOLATION OF PROVISIONS OF THE PUBLIC UTILITIES ACT, THE
GRAIN WAREHOUSE ACT, OR THE ILLINOIS CONSTITUTION OF 1870, ARTICLE
XIII.  IT CHARGED RESPONDENTS WITH HAVING FAILED TO PROVIDE REASONABLE,
SAFE, AND ADEQUATE PUBLIC GRAIN WAREHOUSE SERVICE AND FACILITIES, WITH
ISSUING SECURITIES, WITH ABANDONING SERVICE, AND WITH ENTERING INTO
VARIOUS CONTRACTS WITH THEIR AFFILIATES WITHOUT PRIOR APPROVAL OF THE
COMMISSION; WITH RENDERING STORAGE AND WAREHOUSING SERVICES WITHOUT
HAVING FILED AND PUBLISHED THEIR RATES; WITH OPERATING WITHOUT A STATE
LICENSE; AND WITH MIXING PUBLIC GRAIN WITH GRAINS OF DIFFERENT GRADES -
ALL IN VIOLATION OF PROVISIONS OF THE PUBLIC UTILITIES ACT OR THE GRAIN
WAREHOUSE ACT.  AMONG THE REMEDIES SOUGHT WERE THE FIXING OF JUST,
REASONABLE, AND NON-DISCRIMINATORY RATES, THE PROHIBITION OF UNLAWFUL
DISCRIMINATORY PRACTICES, THE ESTABLISHMENT OF REASONABLE, SAFE AND
ADEQUATE STORAGE AND WAREHOUSING SERVICE, AND THE ASSESSMENT OF
PENALTIES FOR VIOLATIONS OF ILLINOIS LAW, INCLUDING THE CANCELLATION OF
GRAIN WAREHOUSE LICENSES. 

RESPONDENTS MOVED TO DISMISS ON THE GROUND THAT THE UNITED STATES
WAREHOUSE ACT SUPERSEDED THE AUTHORITY OF THE COMMISSION TO REGULATE IN
THE MANNER SOUGHT BY THE COMPLAINT.  THE COMMISSION DENIED THE MOTION
AND SET THE CAUSE FOR A HEARING ON THE MERITS.  THEREUPON RESPONDENTS
BROUGHT THESE SUITS IN THE DISTRICT COURT TO ENJOIN FURTHER PROCEEDINGS
BEFORE THE COMMISSION AND TO ENJOIN THE ATTORNEY GENERAL OF ILLINOIS
FROM INSTITUTING ANY PROCEEDINGS AGAINST RESPONDENTS TO ENFORCE ANY
ORDER OF THE COMMISSION IN THE MATTER.  MOTIONS OF PETITIONERS TO
DISMISS WERE GRANTED.  ON APPEAL THE CIRCUIT COURT OF APPEALS REVERSED,
HOLDING THAT THE UNITED STATES WAREHOUSE ACT SUPERSEDED STATE
REGULATION OF RESPONDENTS AS TO THE MATTERS PRESENTED IN PETITIONERS'
COMPLAINT.  FN3  156 F.2D 33.  THE CASES ARE HERE ON PETITIONS FOR
WRITS OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE PUBLIC IMPORTANCE
OF THE QUESTIONS PRESENTED. 

THE UNITED STATES WAREHOUSE ACT, AS ORIGINALLY ENACTED IN 1916(39
STAT. 486), MADE FEDERAL REGULATION IN THIS FIELD SUBSERVIENT TO STATE
REGULATION.  IT PROVIDED IN SEC. 29 THAT "NOTHING IN THIS ACT SHALL BE
CONSTRUED TO CONFLICT WITH, OR TO AUTHORIZE ANY CONFLICT WITH, OR IN
ANY WAY TO IMPAIR OR LIMIT THE EFFECT OR OPERATION OF THE LAWS OF ANY
STATE RELATING TO WAREHOUSES, WAREHOUSEMEN  ...  "  AND SEC. 6 REQUIRED
AN APPLICANT FOR A FEDERAL WAREHOUSE LICENSE TO PROVIDE A BOND "TO
SECURE THE FAITHFUL PERFORMANCE OF HIS OBLIGATIONS AS A WAREHOUSEMAN"
UNDER STATE AS WELL AS UNDER FEDERAL LAW. 

IN 1931 CONGRESS AMENDED THE ACT.  46 STAT. 1463.  SECTION 29 WAS
AMENDED  FN4  TO PROVIDE THAT ALTHOUGH THE SECRETARY OF AGRICULTURE "IS
AUTHORIZED TO COOPERATE WITH STATE OFFICIALS CHARGED WITH THE
ENFORCEMENT OF STATE LAWS RELATING TO WAREHOUSES, WAREHOUSEMEN," AND
THEIR PERSONNEL, "THE POWER, JURISDICTION, AND AUTHORITY CONFERRED UPON
THE SECRETARY OF AGRICULTURE UNDER THIS ACT SHALL BE EXCLUSIVE WITH
RESPECT TO ALL PERSONS SECURING A LICENSE HEREUNDER SO LONG AS SAID
LICENSE REMAINS IN EFFECT."  SECTION 6 WAS AMENDED TO OMIT THE
REQUIREMENT THAT THE BOND BE CONDITIONED ON COMPLIANCE WITH
REQUIREMENTS OF STATE LAW. 

FIRST.  THE CHIEF MATTERS WHICH ARE THE BASIS OF THE COMPLAINT BEFORE
THE COMMISSION ARE TREATED AS FOLLOWS BY THE ILLINOIS LAW AND BY THE
FEDERAL ACT: 

(1)  JUST AND REASONABLE RATES.  THE COMPLAINT CHARGES THAT
RESPONDENTS' RATES ARE UNJUST AND UNREASONABLE.  UNDER THE ILLINOIS
STATUTE PUBLIC UTILITY RATES MUST BE JUST AND REASONABLE; AND THE
COMMISSION AFTER A HEARING MAY FIX RATES WHICH MEET THAT STANDARD. 
SECS. 32, 36, 41, PUBLIC UTILITIES ACT.  THE SECRETARY OF AGRICULTURE
IS AUTHORIZED BY THE FEDERAL ACT TO LICENSE WAREHOUSEMEN  FN5  ON
CONDITION THAT THEY CONFORM TO THE REQUIREMENTS OF THE ACT AND THE
RULES AND REGULATIONS PRESCRIBED THEREUNDER.  FN6  SECS. 4, 9.  EVERY
RECEIPT OF A LICENSED WAREHOUSE MUST DISCLOSE "THE RATE OF STORAGE
CHARGES."  SEC. 18(E).  BEFORE A LICENSE IS GRANTED THE APPLICANT MUST
FILE HIS PROPOSED RATES WITH THE SECRETARY.  REG. 5, SEC. 3.  HE MUST
ALSO FILE ANY PROPOSED CHANGES IN RATES BEFORE MAKING THEM EFFECTIVE. 
ID. RATES WHICH ARE "UNREASONABLE OR EXORBITANT" ARE PROHIBITED.  ID.
AND THE SECRETARY MAY, AFTER HEARING, SUSPEND OR REVOKE THE LICENSE IF
"UNREASONABLE OR EXORBITANT CHARGES HAVE BEEN MADE FOR SERVICES
RENDERED."  SEC. 25; REG. 2, SEC. 7. 

(2)  DISCRIMINATION.  THE COMPLAINT ALLEGES THAT RESPONDENTS
DISCRIMINATE AGAINST THE PUBLIC AND IN FAVOR OF THE FEDERAL GOVERNMENT
AND ITS AGENCIES BY GRANTING THE LATTER PREFERENTIAL STORAGE RATES. 
THE POWER OF THE ILLINOIS COMMISSION TO FIX RATES, TO WHICH WE HAVE
REFERRED, INCLUDES THE POWER TO ELIMINATE DISCRIMINATORY RATES.  AND
SEE GRAIN WAREHOUSE ACT SEC. 15.  THE FEDERAL ACT REQUIRES THE
PUBLICATION AND DISCLOSURE OF LICENSED WAREHOUSEMEN'S RATES, AS WE HAVE
SEEN.  SECTION 13 OF THE FEDERAL ACT MAKES IT THE DUTY OF A LICENSED
WAREHOUSEMAN TO RECEIVE AGRICULTURAL PRODUCTS FOR STORAGE "IN THE USUAL
MANNER IN THE ORDINARY AND USUAL COURSE OF BUSINESS, WITHOUT MAKING ANY
DISCRIMINATION BETWEEN PERSONS DESIRING TO AVAIL THEMSELVES OF
WAREHOUSE FACILITIES."  AND BY SEC. 25 THE SECRETARY IS GRANTED
AUTHORITY TO SUSPEND OR REVOKE ANY LICENSE OF A WAREHOUSEMAN "FOR ANY
VIOLATION OF OR FAILURE TO COMPLY WITH ANY PROVISION OF THIS ACT  ...
" 

(3)  DUAL POSITION OF WAREHOUSEMEN.  THE COMPLAINT CHARGED VIOLATIONS
OF ILLINOIS LAW BY ACTS OF RESPONDENTS IN STORING AND DEALING IN THEIR
OWN GRAIN WHILE STORING GRAIN FOR THE PUBLIC.  SEE HANNAH V. PEOPLE,
198 ILL. 77, 64 N.E. 776.  THE FEDERAL ACT REQUIRES EVERY RECEIPT
ISSUED FOR AGRICULTURAL PRODUCTS BY A LICENSED WAREHOUSEMAN TO DISCLOSE
"IF THE RECEIPT BE ISSUED FOR AGRICULTURAL PRODUCTS OF WHICH THE
WAREHOUSEMAN IS OWNER, EITHER SOLELY OR JOINTLY OR IN COMMON WITH
OTHERS, THE FACT OF SUCH OWNERSHIP  ...  "  SEC. 18(I).  IN ADDITION,
THE RECEIPTS FOR GRAIN MUST CONTAIN "IN EVENT THE RELATIONSHIP EXISTING
BETWEEN THE WAREHOUSEMAN AND ANY DEPOSITOR IS NOT THAT OF STRICTLY
DISINTERESTED CUSTODIANSHIP, A STATEMENT SETTING FORTH THE ACTUAL
RELATIONSHIP ...  "  REG. 4, SEC. 1(A)(3).  MOREOVER, SEC. 5A (7) OF
THE COMMODITY EXCHANGE ACT, 49 STAT. 1491, 1498, 7 U.S.C. SEC. 7A (7)
PROVIDES THAT RECEIPTS ISSUED UNDER THE UNITED STATES WAREHOUSE ACT
"SHALL BE ACCEPTED IN SATISFACTION OF ANY FUTURES CONTRACT  ...
WITHOUT DISCRIMINATION AND NOTWITHSTANDING THAT THE WAREHOUSEMAN
ISSUING SUCH RECEIPTS IS NOT ALSO LICENSED AS A WAREHOUSEMAN UNDER THE
LAWS OF ANY STATE OR ENJOYS OTHER OR DIFFERENT PRIVILEGES THAN UNDER
STATE LAW  ...  " 

(4)  MIXING HIGH QUALITY PUBLIC GRAIN WITH INFERIOR GRAIN OWNED BY
RESPONDENTS, DELAY IN LOADING GRAIN.  THE COMPLAINT CHARGES THAT THESE
PRACTICES  FN7  ARE PART OF THE ABUSES FLOWING FROM THE CONFLICTING
POSITIONS OF RESPONDENTS AS PUBLIC GRAIN WAREHOUSEMEN AND DEALERS IN
GRAIN.  THEY ARE ALLEGED TO VIOLATE THE RULE OF HANNAH V. PEOPLE,
SUPRA, AND PROVISIONS OF THE PUBLIC UTILITIES ACT WHICH PROHIBIT ANY
PREFERENCE OR ADVANTAGE TO ANY PERSON AND WHICH DISALLOW ANY ACT OF
PREJUDICE OR DISADVANTAGE TO ANY PERSON.  SEC. 38.  AND SEE GRAIN
WAREHOUSE ACT SEC. 17.  SECTION 13 OF THE FEDERAL ACT, AS WE HAVE SEEN,
PROVIDES THAT EVERY LICENSED WAREHOUSEMAN "SHALL RECEIVE FOR STORAGE"
ANY AGRICULTURAL PRODUCT "WITHOUT MAKING ANY DISCRIMINATION BETWEEN
PERSONS DESIRING TO AVAIL THEMSELVES OF WAREHOUSE FACILITIES."  SECTION
15 PROVIDES FOR THE INSPECTION AND GRADING OF FUNGIBLE AGRICULTURAL
PRODUCTS BY FEDERAL INSPECTORS.  SECTION 16 PERMITS LICENSED
WAREHOUSEMEN "IF AUTHORIZED BY AGREEMENT OR BY CUSTOM" TO MINGLE
FUNGIBLE PRODUCTS WITH OTHER PRODUCTS "OF THE SAME KIND AND GRADE." 
DIFFERENT GRADES."  FN8  SECTION 30 PROVIDES FINE AND IMPRISONMENT FOR
ANY PERSON WHO FRAUDULENTLY CLASSIFIES, GRADES, OR WEIGHS ANY
AGRICULTURAL PRODUCT STORED UNDER THE PROVISIONS OF THE ACT.  SECTION
21 PROVIDES THAT A WAREHOUSEMAN IN ABSENCE OF SOME LAWFUL EXCUSE SHALL
DELIVER "WITHOUT UNNECESSARY DELAY" THE STORED PRODUCTS ON PROPER
DEMAND. 

(5)  SACRIFICING OR REBATING STORAGE CHARGES, RETAINING DESIRABLE
TRANSIT TONNAGE, UTILIZING PREFERRED STORAGE SPACE.  THESE PRACTICES,
CHARGED IN THE COMPLAINT,  FN9  ARE ALLEGED TO BE OTHER MANIFESTATIONS
OF THE EVILS OF A PUBLIC WAREHOUSEMAN ALSO BEING A DEALER IN GRAIN. 
THEY ARE SAID TO BE VIOLATIVE OF THE PRINCIPLES ANNOUNCED IN CENTRAL
ELEVATOR CO. V. PEOPLE, 174 ILL. 203, 208-209, 51 N.E. 254, 256.  AND
THESE PRACTICES ARE SAID TO BE ACTS OF PREJUDICE OR DISADVANTAGE
OUTLAWED BY SEC. 38 OF THE PUBLIC UTILITIES ACT WHICH WE HAVE ALREADY
MENTIONED.  ON THE OTHER HAND, THE FEDERAL ACT, AS WE HAVE SEEN,
REQUIRES EVERY LICENSED WAREHOUSEMAN TO "RECEIVE FOR STORAGE" ANY
AGRICULTURAL PRODUCT "WITHOUT MAKING ANY DISCRIMINATION BETWEEN PERSONS
DESIRING TO AVAIL THEMSELVES OF WAREHOUSE FACILITIES."  SEC. 13. 

(6)  MAINTENANCE OF UNSAFE AND INADEQUATE ELEVATORS; INADEQUATE AND
INEFFICIENT WAREHOUSE SERVICE.  THE COMPLAINT ALLEGES THAT AS A RESULT
OF THESE PRACTICES FIRE INSURANCE PREMIUMS HAVE BECOME EXORBITANT AND
PROHIBITIVE; THAT OWNERS OF GRAIN HAVE SUFFERED DAMAGES DUE TO THE
DETERIORATION OF GRAIN.  THE ILLINOIS COMMISSION IS GRANTED BROAD
POWERS OVER THE MAINTENANCE OF FACILITIES WHICH ARE ADEQUATE AND
EFFICIENT (SECS. 32, 49, PUBLIC UTILITIES ACT) INCLUDING THE POWER TO
ORDER THE MAKING OF ADDITIONS, EXTENSIONS, REPAIRS, IMPROVEMENTS, OR
CHANGES.  ID., SEC. 50.  BY SEC. 3 OF THE FEDERAL ACT THE SECRETARY OF
AGRICULTURE IS AUTHORIZED "TO DETERMINE WHETHER WAREHOUSES FOR WHICH
LICENSES ARE APPLIED FOR OR HAVE BEEN ISSUED UNDER THIS ACT ARE
SUITABLE FOR THE PROPER STORAGE OF ANY AGRICULTURAL PRODUCT  ...  "
OF WAREHOUSEMEN "WITH RESPECT TO THEIR CARE OF AND RESPONSIBILITY FOR
AGRICULTURAL PRODUCTS STORED" IN LICENSED WAREHOUSES.  FN10  NO LICENSE
WILL BE GRANTED IF THE WAREHOUSE IS FOUND "NOT SUITABLE FOR THE PROPER
STORAGE OF GRAIN."  REG. 2, SEC. 5.  EVERY WAREHOUSEMAN MUST EXERCISE
"SUCH CARE IN REGARD TO GRAIN IN HIS CUSTODY AS A REASONABLY CAREFUL
OWNER WOULD EXERCISE UNDER THE SAME CIRCUMSTANCES AND CONDITIONS." 
REG. 5, SEC. 8.  EVERY WAREHOUSEMAN MUST KEEP "HIS WAREHOUSE REASONABLY
CLEAN AT ALL TIMES AND FREE FROM STRAW, RUBBISH, OR ACCUMULATIONS OF
MATERIALS THAT WILL INCREASE THE FIRE HAZARD OR INTERFERE WITH THE
HANDLING OF GRAIN."  REG. 5, SEC. 15.    (7)  OPERATING WITHOUT A STATE
LICENSE.  THE COMPLAINT CHARGES THAT RESPONDENTS MAY NOT LAWFULLY
OPERATE WITHOUT A LICENSE FROM ILLINOIS.  SEE GRAIN WAREHOUSE ACT SEC.
3.  THE FEDERAL ACT GIVES THE SECRETARY OF AGRICULTURE AUTHORITY TO
ISSUE LICENSES ON TERMS AND CONDITIONS SPECIFIED.  SECS. 3, 4, 5. 

(8)  ABANDONMENT OF WAREHOUSING SERVICE.  THE COMPLAINT ALLEGES THAT
RESPONDENTS HAVE ABANDONED SERVICES WITHOUT CONSENT OF THE ILLINOIS
COMMISSION.  APPROVAL OF THE COMMISSION TO ABANDON OR DISCONTINUE
SERVICE IS REQUIRED.  SEC. 49A, PUBLIC UTILITIES ACT.  LICENSES ISSUED
UNDER THE FEDERAL ACT "SHALL TERMINATE AS THEREIN (SECS. 4, 9)
PROVIDED, OR IN ACCORDANCE WITH THE TERMS OF THIS ACT AND THE
REGULATIONS THEREUNDER  ...  "  SEC. 5.  BY SEC. 25 THE SECRETARY IS
AUTHORIZED TO SUSPEND OR REVOKE A LICENSE FOR ANY VIOLATION OF THE ACT
OR THE REGULATIONS.  AMONG THE GROUNDS FOR REVOCATION SPECIFIED IN THE
REGULATIONS IS CEASING TO CONDUCT THE LICENSED WAREHOUSE.  REG. 2, SEC.
7. 

(9)  FAILURE TO FILE AND PUBLISH RATE SCHEDULES; RENDERING
WAREHOUSING SERVICE WITHOUT FILING AND PUBLISHING SCHEDULES.  THESE
MATTERS, CHARGED IN THE COMPLAINT, ARE REGULATED BY SECS. 33 AND 35 OF
THE PUBLIC UTILITIES ACT.  UNDER THE FEDERAL ACT A WAREHOUSEMAN MUST
FILE HIS RATE SCHEDULES BEFORE A LICENSE ISSUES; PROPOSED CHANGES IN
THEM MUST BE FILED BEFORE MADE; THE CURRENT SCHEDULE OF CHARGES MUST BE
POSTED IN A CONSPICUOUS PLACE IN THE PRINCIPAL OFFICE WHERE RECEIPTS
ISSUED BY THE WAREHOUSEMAN ARE DELIVERED TO THE PUBLIC.  REG. 5, SEC.
3; REG. 2, SEC. 6. 

AS WE HAVE SEEN, CONGRESS IN 1931 MADE THE "POWER, JURISDICTION, AND
AUTHORITY" OF THE SECRETARY OF AGRICULTURE CONFERRED BY THE ACT
"EXCLUSIVE WITH RESPECT TO ALL PERSONS SECURING A LICENSE" UNDER THE
ACT, SO LONG AS THE LICENSE REMAINS IN EFFECT.  IT IS ARGUED BY
RESPONDENTS THAT SEC. 29 SHOULD BE CONSTRUED TO MEAN THAT THE SUBJECTS
WHICH THE SECRETARY'S AUTHORITY TOUCHES MAY NOT BE REGULATED IN ANY WAY
BY ANY STATE AGENCY, THOUGH THE SCOPE OF FEDERAL REGULATION IS NOT AS
BROAD AS THE REGULATORY SCHEME OF THE STATE AND EVEN THOUGH THERE IS OR
MAY BE NO NECESSARY CONFLICT BETWEEN WHAT THE STATE AGENCY AND THE
FEDERAL AGENCY DO. ON THE OTHER HAND, PETITIONERS ARGUE THAT SINCE THE
AREA TAKEN OVER BY THE FEDERAL GOVERNMENT IS LIMITED, THE REST MAY BE
OCCUPIED BY THE STATES; THAT STATE REGULATION SHOULD NOT GIVE WAY
UNLESS THERE IS A PRECISE COINCIDENCE OF REGULATION OR AN
IRRECONCILABLE CONFLICT BETWEEN THE TWO. 

IT IS CLEAR THAT SINCE WAREHOUSES ENGAGED IN THE STORAGE OF GRAIN FOR
INTERSTATE OR FOREIGN COMMERCE ARE IN THE FEDERAL DOMAIN, UNITED STATES
V. HASTINGS, 296 U.S. 188, CONGRESS MAY, IF IT CHOOSES, TAKE UNTO
ITSELF ALL REGULATORY AUTHORITY OVER THEM (SEE NEW YORK CENTRAL R. CO.
V. NEW YORK & PA. CO., 271 U.S. 124), SHARE THE TASK WITH THE STATES,
OR ADOPT AS FEDERAL POLICY THE STATE SCHEME OF REGULATION.  SEE
PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408, 430-436.  THE QUESTION
IN EACH CASE IS WHAT THE PURPOSE OF CONGRESS WAS. 

CONGRESS LEGISLATED HERE IN A FIELD WHICH THE STATES HAVE
TRADITIONALLY OCCUPIED.  SEE MUNN V. ILLINOIS, 94 U.S. 113; DAVIES
WAREHOUSE CO. V. BOWLES, 321 U.S. 144, 148-149.  SO WE START WITH THE
ASSUMPTION THAT THE HISTORIC POLICE POWERS OF THE STATES WERE NOT TO BE
SUPERSEDED BY THE FEDERAL ACT UNLESS THAT WAS THE CLEAR AND MANIFEST
PURPOSE OF CONGRESS.  NAPIER V. ATLANTIC COAST LINE R. CO., 272 U.S.
605, 611; ALLEN-BRADLEY LOCAL V. WISCONSIN EMPLOYMENT BOARD, 315 U.S.
740, 749.  SUCH A PURPOSE MAY BE EVIDENCED IN SEVERAL WAYS.  THE SCHEME
OF FEDERAL REGULATION MAY BE SO PERVASIVE AS TO MAKE REASONABLE THE
INFERENCE THAT CONGRESS LEFT NO ROOM FOR THE STATES TO SUPPLEMENT IT.
PENNSYLVANIA R. CO. V. PUBLIC SERVICE COMM'N, 250 U.S. 566, 569;
CLOVERLEAF BUTTER CO. V. PATTERSON, 315 U.S. 148.  OR THE ACT OF
CONGRESS MAY TOUCH A FIELD IN WHICH THE FEDERAL INTEREST IS SO DOMINANT
THAT THE FEDERAL SYSTEM WILL BE ASSUMED TO PRECLUDE ENFORCEMENT OF
STATE LAWS ON THE SAME SUBJECT.  HINES V. DAVIDOWITZ, 312 U.S. 52. 
LIKEWISE, THE OBJECT SOUGHT TO BE OBTAINED BY THE FEDERAL LAW AND THE
CHARACTER OF OBLIGATIONS IMPOSED BY IT MAY REVEAL THE SAME PURPOSE. 
SOUTHERN R. CO. V. RAILROAD COMMISSION, 236 U.S. 439; CHARLESTON &
W.C.R. CO. V. VARNVILLE CO., 237 U.S. 597; NEW YORK CENTRAL R. CO. V.
WINFIELD, 244 U.S. 147; NAPIER V. ATLANTIC COAST LINE R. CO., SUPRA.
OR THE STATE POLICY MAY PRODUCE A RESULT INCONSISTENT WITH THE
OBJECTIVE OF THE FEDERAL STATUTE.  HILL V. FLORIDA, 325 U.S. 538.  IT
IS OFTEN A PERPLEXING QUESTION WHETHER CONGRESS HAS PRECLUDED STATE
ACTION OR BY THE CHOICE OF SELECTIVE REGULATORY MEASURES HAS LEFT THE
POLICE POWER OF THE STATES UNDISTURBED EXCEPT AS THE STATE AND FEDERAL
REGULATIONS COLLIDE.  TOWNSEND V. YEOMANS, 301 U.S. 441; KELLY V.
WASHINGTON, 302 U.S. 1; SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS.,
303 U.S. 177; UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202. 

A FORCEFUL ARGUMENT IS MADE HERE FOR THE VIEW THAT THE ILLINOIS
REGULATORY SCHEME SHOULD BE ALLOWED TO SUPPLEMENT THE FEDERAL ACT AND
THAT THE ILLINOIS COMMISSION SHOULD NOT BE PREVENTED FROM ACTING ON ANY
OF THE MATTERS COVERED BY RICE'S COMPLAINT, UNLESS WHAT THE COMMISSION
DOES RUNS COUNTER IN FACT TO THE FEDERAL POLICY.  THAT IS TO SAY, THE
ACTUAL OPERATION OF THE STATE SYSTEM MAY BE HARMONIOUS WITH THE
"MEASURE OF CONTROL" OVER WAREHOUSEMEN WHICH THE FEDERAL ACT IMPOSES. 
FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S. 17, 23.  THAT, IT IS SAID, CAN
ONLY BE DETERMINED AFTER THE ILLINOIS COMMISSION HAS ACTED. 

THAT ARGUMENT IS ILLUSTRATED IN SEVERAL WAYS.  THE ILLINOIS
COMMISSION MAY FIX RATES; THE SECRETARY OF AGRICULTURE CANNOT.  HE MAY,
TO BE SURE, SUSPEND OR REVOKE LICENSES IF UNREASONABLE OR EXORBITANT
CHARGES ARE MADE.  IF THE COMMISSION FIXES UNREASONABLE OR EXORBITANT
RATES, THERE WILL BE A CONFLICT WITH THE FEDERAL ACT AND THE STATE RATE
ORDER MUST FALL.  BUT UNTIL IT IS KNOWN WHAT THE COMMISSION WILL DO, NO
CONFLICT WITH THE FEDERAL ACT CAN BE SHOWN.  IF INDEED IT REDUCES
RATES, AS MAY BE PRESUMED NO CONFLICT WITH THE FEDERAL ACT WILL LIKELY
EXIST.  ANOTHER ILLUSTRATION CONCERNS THE DUAL POSITION OF THE
WAREHOUSEMEN.  IT IS POINTED OUT THAT ALL THE FEDERAL ACT REQUIRES IS
DISCLOSURE; THAT THE MORE BASIC STATE POLICY OF UPROOTING THE PRACTICE
OF PUBLIC WAREHOUSEMEN STORING AND DEALING IN THEIR OWN GRAIN IS NOT
INCONSISTENT WITH THE FEDERAL POLICY OF DISCLOSURE.  ANOTHER
ILLUSTRATION RELATES TO THE PREFERENTIAL AND DISCRIMINATORY PRACTICES
IN CONNECTION WITH THE REBATE OF STORAGE CHARGES, RETENTION OF
DESIRABLE TRANSIT TONNAGE, AND THE UTILIZATION OF PREFERRED STORAGE
SPACE.  ALL THE FEDERAL ACT REQUIRES IS THAT WAREHOUSEMEN RECEIVE
PRODUCTS FOR STORAGE WITHOUT MAKING DISCRIMINATIONS BETWEEN PERSONS. 
WHAT THE ILLINOIS COMMISSION PROMULGATES OR REQUIRES, IF THE
PROCEEDINGS BEFORE IT ARE ALLOWED TO GO AHEAD, MIGHT INDEED STRENGTHEN
AND BOLSTER THE FEDERAL REGULATORY SCHEME AND IN NO WAY DILUTE, IMPAIR
OR OPPOSE IT.  SUCH REASONING COULD BE APPLIED TO EACH OF THE NINE
CHARGES WHICH WE HAVE SUMMARIZED, EVEN INCLUDING, PERHAPS, THE
REQUIREMENTS FOR A STATE LICENSE AND THE FILING AND PUBLISHING OF RATE
SCHEDULES.  SEE UNION BROKERAGE CO. V. JENSEN, SUPRA. 

AT FIRST BLUSH THAT CONSTRUCTION OF THE FEDERAL ACT HAS GREAT
PLAUSIBILITY.  IT PRESERVES INTACT THE FEDERAL SYSTEM OF WAREHOUSE
REGULATION, LEAVES THE STATE FREE TO PROTECT LOCAL INTERESTS, AND
STRIKES DOWN STATE POWER ONLY IN CASE WHAT THE STATE DOES IN FACT
DILUTES OR DIMINISHES THE FEDERAL PROGRAM. 

BUT THE SPECIAL AND PECULIAR HISTORY OF THE WAREHOUSE ACT INDICATES
TO US THAT SUCH A CONSTRUCTION WOULD THWART THE FEDERAL POLICY WHICH
CONGRESS ADOPTED WHEN IT AMENDED THE ACT IN 1931.  PRIOR TO THAT TIME,
AS WE HAVE POINTED OUT, THE FEDERAL ACT BY REASON OF ITS EXPRESS TERMS
HAD BEEN SUBSERVIENT TO STATE LAWS RELATING TO WAREHOUSES AND
WAREHOUSEMEN.  CONGRESS IN 1931 FOUND THAT CONDITION UNFAVORABLE AND
UNDERTOOK TO CHANGE IT.  IF CONGRESS HAD DONE NO MORE THAN TO ELIMINATE
FROM SEC. 29 THE LANGUAGE WHICH RESULTED IN THE ACT'S SUBSERVIENCE,
THERE WOULD BE A STRONG CASE FOR HOLDING THAT STATE REGULATORY SYSTEMS
WERE NOT TO BE AFFECTED UNLESS THEY COLLIDED WITH THE ACT.  THAT
CONSTRUCTION WOULD RECEIVE REINFORCEMENT FROM THE PROVISION IN SEC. 29
THAT THE SECRETARY "IS AUTHORIZED TO COOPERATE WITH STATE OFFICIALS
CHARGED WITH THE ENFORCEMENT OF STATE LAWS" RELATING TO WAREHOUSES AND
WAREHOUSEMEN.  CF. UNION BROKERAGE CO. V. JENSEN, SUPRA, P. 209.  BUT
CONGRESS DID NOT CHOOSE THAT SIMPLE EXPEDIENT.  IT WENT FURTHER AND
ADDED TO SEC. 29 THE MANDATORY WORDS "THE POWER, JURISDICTION, AND
AUTHORITY" OF THE SECRETARY CONFERRED UNDER THE ACT "SHALL BE EXCLUSIVE
WITH RESPECT TO ALL PERSONS" LICENSED UNDER THE ACT.  AND THE ORIGINAL
PROVISIONS OF SEC. 6 REQUIRING A BOND FROM LICENSEES SECURING THE
FAITHFUL PERFORMANCE OF THEIR OBLIGATIONS AS WAREHOUSEMEN UNDER STATE
LAW WERE DELETED. 

THESE ACTIONS WERE EXPLAINED IN THE COMMITTEE REPORTS. 

THE PREVIOUS SUBSERVIENCE OF THE ACT TO STATE LAW WAS SAID TO HAVE
MILITATED "AGAINST THE FULL VALUE OF FEDERAL WAREHOUSE RECEIPTS FOR
COLLATERAL PURPOSES."  FN11  S. REP. NO. 1775, 71ST CONG., 3D SESS., P.
2.  THE AMENDMENT TO SEC. 6 FOLLOWED "NATURALLY" THE REVISION OF SEC.
29.  ID. THE AMENDMENT TO SEC. 29 WAS DESIGNED TO MAKE "THE FEDERAL ACT
INDEPENDENT OF STATE LAWS" AND TO "PLACE THE FEDERAL ACT ON ITS OWN
BOTTOM."  ID.  WHILE A WAREHOUSEMAN NEED NOT OPERATE UNDER THE ACT, IF
HE CHOSE TO BE LICENSED UNDER IT, HE WOULD THEN "BE AUTHORIZED TO
OPERATE WITHOUT REGARD TO STATE ACTS AND BE SOLELY RESPONSIBLE TO THE
FEDERAL ACT."  ID. WAREHOUSEMEN, HAVING MADE THEIR CHOICE TO OPERATE
UNDER STATE OR FEDERAL LAW, SHOULD "THEN BE PERMITTED TO OPERATE
WITHOUT INTERFERENCE ON THE PART OF ANY AGENCY."  ID., PP. 2-3.  OR, AS
STATED BY THE HOUSE COMMITTEE, THE PURPOSE OF THE AMENDMENT TO SEC. 29
WAS TO MAKE THE ACT "INDEPENDENT OF ANY STATE LEGISLATION ON THE
SUBJECT."  H.R. REP. NO. 2314, 70TH CONG., 2D SESS., P. 4. 

THAT IS STRONG LANGUAGE.  IT MAKES UNAMBIGUOUS WHAT WAS MEANT BY THE
DELETION FROM SEC. 6 OF ANY REQUIREMENT THAT FEDERAL LICENSEES COMPLY
WITH STATE LAWS REGULATING WAREHOUSEMEN.  IT MAKES CLEAR THE
SIGNIFICANCE TO BE ATTACHED TO THE SPECIAL WORDING OF SEC. 29.  THE
AMENDMENTS TO SEC. 6 AND SEC. 29, READ IN LIGHT OF THE COMMITTEE
REPORTS, SAY TO US IN PLAIN TERMS THAT A LICENSEE UNDER THE FEDERAL ACT
CAN DO BUSINESS "WITHOUT REGARD TO STATE ACTS"; THAT THE MATTERS
REGULATED BY THE FEDERAL ACT CANNOT BE REGULATED BY THE STATES; THAT ON
THOSE MATTERS A FEDERAL LICENSEE (SO FAR AS HIS INTERSTATE OR FOREIGN
COMMERCE ACTIVITIES ARE CONCERNED) IS SUBJECT TO REGULATION BY ONE
AGENCY AND BY ONE AGENCY ALONE.  FN12  THAT IS TO SAY, CONGRESS DID
MORE THAN MAKE THE FEDERAL ACT PARAMOUNT OVER STATE LAW IN THE EVENT OF
CONFLICT.  IT REMEDIED THE DIFFICULTIES WHICH HAD BEEN ENCOUNTERED IN
THE ACT'S ADMINISTRATION BY TERMINATING THE DUAL SYSTEM OF REGULATION. 
CF. FIRST IOWA HYDRO-ELECTRIC COOP.  V. FEDERAL POWER COMMISSION, 328
U.S. 152.  AS STATED BY THE SUPREME COURT OF SOUTH DAKOTA, WAREHOUSEMEN
ELECTING TO COME UNDER THE FEDERAL ACT NEED SERVE BUT ONE MASTER, AND
THAT ONE THE FEDERAL AGENCY.  IN RE FARMERS COOPERATIVE ASSN., 69 S.D.
P. 202, 8 N.W.2D P. 562.  THE COOPERATION WHICH THE SECRETARY WAS
AUTHORIZED TO UNDERTAKE WITH STATE OFFICIALS WAS COOPERATION IN
HARMONIZING THE EXCLUSIVELY FEDERAL AND THE EXCLUSIVELY STATE SYSTEMS
OF REGULATION. 

IN THIS VIEW OF THE ACT, CONGRESS FORMULATED A POLICY ON NUMEROUS
PHASES OF THE WAREHOUSE BUSINESS.  FN13  THE POLICY ON RATES WAS NOT
THE FIXING OF THEM BUT CONTROL OVER THEM THROUGH ISSUANCE, SUSPENSION,
OR REVOCATION OF LICENSES.  DUAL OR CONFLICTING POSITIONS OF
WAREHOUSEMEN WERE REGULATED BY DISCLOSURE, BY GENERAL PROHIBITIONS
AGAINST DISCRIMINATION BETWEEN CUSTOMERS, BY CONTROL OVER THE LICENSE. 
UNSAFE AND INADEQUATE WAREHOUSES WERE PROTECTED BY THE POWER OF THE
SECRETARY TO DETERMINE WHETHER THE WAREHOUSES OF APPLICANTS OR
LICENSEES WERE SUITABLE.  MIXING OF GRAIN WAS AUTHORIZED UNDER
SPECIFIED CONDITIONS AND PROHIBITED UNDER OTHERS.  ON EACH OF THE NINE
MATTERS CHARGED IN THE COMPLAINT AND LISTED ABOVE CONGRESS LEGISLATED. 
AND AS WE READ THE ACT, CONGRESS IN EFFECT SAID THAT THE POLICY WHICH
IT ADOPTED IN EACH OF THE NINE WAS EXCLUSIVE OF ALL OTHERS; AND THAT IF
A LICENSED WAREHOUSEMAN COMPLIED WITH EACH REQUIREMENT, HE DID ALL THAT
HE NEED DO.  HE COULD NOT BE REQUIRED BY A STATE TO DO MORE OR
ADDITIONAL THINGS OR CONFORM TO ADDED REGULATIONS, EVEN THOUGH THEY IN
NO WAY CONFLICTED WITH WHAT WAS DEMANDED OF HIM UNDER THE FEDERAL ACT. 
WE RECENTLY NOTED THAT CONGRESS CAN ACT SO UNEQUIVOCALLY AS TO MAKE
CLEAR THAT IT INTENDS NO REGULATION EXCEPT ITS OWN.  BETHLEHEM STEEL
CO. V. NEW YORK STATE LABOR RELATIONS BOARD, 330 U.S. 767.  IN THESE
FIELDS CONGRESS HAS DONE JUST THAT BY THE 1931 AMENDMENTS. 

THUS, BY ELIMINATING DUAL REGULATION AND SUBSTITUTING REGULATION BY
ONE AGENCY, CONGRESS SOUGHT TO ACHIEVE "FAIR AND UNIFORM BUSINESS
PRACTICES" WHICH, AS NOTED IN FEDERAL COMPRESS CO. V. MCLEAN, SUPRA, P.
23, WAS THE PURPOSE OF THE AMENDED ACT. 

THE TEST, THEREFORE, IS WHETHER THE MATTER ON WHICH THE STATE ASSERTS
THE RIGHT TO ACT IS IN ANY WAY REGULATED BY THE FEDERAL ACT.  IF IT IS,
THE FEDERAL SCHEME PREVAILS THOUGH IT IS A MORE MODEST, LESS PERVASIVE
REGULATORY PLAN THAN THAT OF THE STATE.  BY THAT TEST EACH OF THE NINE
MATTERS WE HAVE LISTED IS BEYOND THE REACH OF THE ILLINOIS COMMISSION,
SINCE ON EACH ONE CONGRESS HAS DECLARED ITS POLICY IN THE WAREHOUSE
ACT.  THE PROVISIONS OF ILLINOIS LAW ON THOSE SUBJECTS MUST THEREFORE
GIVE WAY BY VIRTUE OF THE SUPREMACY CLAUSE.  U.S. CONST., ART. VI, CL.
2.    SECOND.  THERE WERE MATTERS, OTHER THAN THOSE WE HAVE MENTIONED,
WHICH WERE CHARGED IN THE COMPLAINT BEFORE THE COMMISSION. 

(1)  FAILURE TO SECURE PRIOR APPROVAL OF THE ILLINOIS COMMISSION FOR
MANAGEMENT, CONSTRUCTION, ENGINEERING, SUPPLY, FINANCIAL AND OTHER
CONTRACTS BETWEEN RESPONDENTS AND AFFILIATES.  SUCH APPROVAL IS SAID TO
BE REQUIRED BY SEC. 8(A)(3) OF THE PUBLIC UTILITIES ACT. 

(2)  FAILURE TO SECURE PRIOR APPROVAL OF CONTRACTS AND LEASES BETWEEN
RESPONDENTS AND OTHER PUBLIC UTILITIES.  SUCH APPROVAL IS SAID TO BE
REQUIRED BY SEC. 27 OF THE PUBLIC UTILITIES ACT.    (3)  FAILURE TO
SECURE APPROVAL OF ISSUANCE OF SECURITIES PAYABLE AT PERIODS OF MORE
THAN TWELVE MONTHS AFTER DATE.  SUCH APPROVAL IS SAID TO BE REQUIRED BY
SEC. 21 OF THE PUBLIC UTILITIES ACT. 

THESE REGULATORY MEASURES, IT IS SAID, ARE DESIGNED TO PREVENT
UNWARRANTED DRAINS ON UTILITY FUNDS OR THE CREATION OF UNSOUND
FINANCIAL STRUCTURES WHICH WOULD AFFECT THE ABILITY OF WAREHOUSEMEN TO
RENDER ADEQUATE SERVICE AT REASONABLE RATES. 

THE UNITED STATES WAREHOUSE ACT CONTAINS NO PROVISIONS RELATING
EXPRESSLY TO THESE THREE MATTERS.  AND WE ARE TOLD THAT THE SECRETARY
OF AGRICULTURE HAS MADE NO ATTEMPT TO EXERCISE ANY JURISDICTION OVER
THEM.  BUT POSSIBILITIES OF CONFLICT AND REPUGNANCY ARE CONJURED UP.
IT IS STATED, FOR EXAMPLE, THAT THE SECRETARY MIGHT DETERMINE THAT A
WAREHOUSEMAN COULD NOT OFFER SUITABLE WAREHOUSE SERVICE WITHOUT AN
ADDITION TO HIS WAREHOUSE, THAT THE FINANCING OF AN ADDITION MIGHT
REQUIRE THE WAREHOUSEMAN TO ISSUE SECURITIES, THAT STATE DISAPPROVAL OF
THE ISSUE MIGHT PREVENT THE LICENSEE FROM MAKING THE REQUIRED
ADDITIONS.  BUT IT WILL BE TIME TO CONSIDER SUCH ASSERTED CONFLICTS
BETWEEN THE STATE AND FEDERAL ACTS WHEN AND IF THEY ARISE.  ANY SUCH
OBJECTIONS ARE AT THIS STAGE PREMATURE.  CONGRESS HAS NOT FORECLOSED
STATE ACTION BY ADOPTING A POLICY OF ITS OWN ON THESE MATTERS.  INTO
THESE FIELDS IT HAS NOT MOVED.  BY NOTHING THAT IT HAS DONE HAS IT
PREEMPTED THOSE AREAS.  AND SEE FEDERAL COMPRESS CO. V. MCLEAN, SUPRA,
P. 23.  IN MORE AMBIGUOUS SITUATIONS THAN THIS WE HAVE REFUSED TO HOLD
THAT STATE REGULATION WAS SUPERSEDED BY A FEDERAL LAW.  PENN DAIRIES,
INC. V. MILK CONTROL COMMISSION, 318 U.S. 261. 

WE ACCORDINGLY AFFIRM IN PART AND REVERSE IN PART THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS AND REMAND THE CAUSE TO THE DISTRICT COURT FOR
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  SO ORDERED. 

FN1  THE CHICAGO BOARD OF TRADE WAS ALSO JOINED AS A DEFENDANT IN THE
PROCEEDINGS BEFORE THE ILLINOIS COMMERCE COMMISSION.  THE ISSUES RAISED
CONCERNING IT ARE CONSIDERED IN THE COMPANION CASES DECIDED THIS DAY,
RICE V. BOARD OF TRADE, AND ILLINOIS COMMERCE COMMISSION V. BOARD OF
TRADE, POST, P. 247. 

FN2  THE PREFERENCES WERE ALLEGED TO HAVE ARISEN FROM THE PRACTICE OF
RESPONDENTS IN "(A) MIXING HIGH QUALITY PUBLIC GRAIN WITH INFERIOR
GRAIN OWNED OR ACQUIRED BY THE DEFENDANT WAREHOUSEMAN TO REDUCE GRAIN
DELIVERED TO THE POINT OF MINIMUM QUALITY WITHIN THE ESTABLISHED GRAIN
TRADE.  (B) SACRIFICING PART OF STORAGE CHARGES TO OFFSET PURCHASES AND
SALES OF GRAIN AND OTHERWISE MANIPULATING AND REBATING STORAGE CHARGES
ON GRAIN STORED IN PRIVATE WAREHOUSE SPACE.  (C) FURNISHING TRANSIT
TONNAGE TO OWNERS OF PUBLIC GRAIN OF THE MOST UNDESIRABLE TYPE, WHILE
WITHHOLDING FOR THEIR OWN USE THE MOST DESIRABLE TRANSIT TONNAGE,
THEREBY PLACING THE OWNERS OF PUBLIC GRAIN AT A DISTINCT DISADVANTAGE
IN MERCHANDISING GRAIN IN STORAGE.  (D) PROVIDING FOR STORAGE OF PUBLIC
GRAIN IN OLD WOODEN WAREHOUSES CARRYING EXORBITANT INSURANCE PREMIUM
RATES, WHILE STORING THE WAREHOUSEMEN'S OWN GRAIN IN MODERN WAREHOUSES
WITH REASONABLE INSURANCE PREMIUM RATES.  (E) UNDULY AND IMPRUDENTLY
DELAYING LOADING OF GRAIN AFTER RETURN OF WAREHOUSE RECEIPT ISSUED BY
THE PARTICULAR WAREHOUSEMAN, THE TENDER OF PROPER CHARGES AND THE
RECEIPT OF INSTRUCTIONS TO LOAD GRAIN FOR DELIVERY." 

FN3  ACCORD:  IN RE FARMERS CO-OP. ASSN., 69 S.D. 191, 8 N.W.2D 557. 

FN4  THE SECRETARY OF AGRICULTURE WHO RECOMMENDED THE 1931 AMENDMENT
TO SEC. 29 GAVE THE FOLLOWING REASONS: 

"THE AMENDMENT SUGGESTED RELATIVE TO SECTION 29 AIMS TO MAKE THE
FEDERAL WAREHOUSE ACT INDEPENDENT OF ANY STATE LEGISLATION ON THE
SUBJECT.  AS THE LAW NOW READS, IT CAN BE NULLIFIED BY STATE
LEGISLATION.  THERE ARE CONFLICTS AT PRESENT BETWEEN THE STATE LAWS AND
THE FEDERAL ACT.  FOR INSTANCE, UNDER CERTAIN STATE LAWS WAREHOUSEMEN
ARE PERMITTED TO SHIP THE PRODUCTS FROM THEIR WAREHOUSES TO A TERMINAL
OR OTHER WAREHOUSE WHILE THE RECEIPTS ARE OUTSTANDING.  THE PRIME
PURPOSE OF THE FEDERAL WAREHOUSE ACT IS TO MAKE IT POSSIBLE TO FINANCE,
PROPERLY, AGRICULTURAL PRODUCTS WHILE IN STORAGE.  NO BANKER CAN SAFELY
LOAN ON A WAREHOUSE RECEIPT REPRESENTING A PRODUCT TO BE IN A CERTAIN
WAREHOUSE WHEN, AS A MATTER OF FACT, IT MAY BE MOVED UNDER AUTHORITY OF
STATE LAW TO SOME OTHER AND DISTANT WAREHOUSE.  THE FEDERAL WAREHOUSE
ACT, AS NOW WORDED, SPECIFICALLY PROHIBITS REMOVAL OF THE PRODUCT PRIOR
TO THE RETURN OF THE RECEIPTS.  THIS DEPARTMENT EMPHATICALLY BELIEVES
THAT THIS REQUIREMENT OF THE FEDERAL ACT IS SOUND AND THE BANKING
FRATERNITY GENERALLY SHARES THAT SAME FEELING.  IT IS AT ONCE APPARENT
TO YOU, OF COURSE, THAT IF THE FEDERAL ACT MAY BE NULLIFIED BY STATE
LAWS WITH RESPECT TO A FEATURE AS IMPORTANT AS THIS THAT THE VALUE OF
FEDERAL WAREHOUSE RECEIPTS MIGHT BE DESTROYED.  FOR THAT REASON, THEN,
WE HAVE SUGGESTED AMENDING SECTION 29 SO AS TO MAKE THE FEDERAL
WAREHOUSE ACT INDEPENDENT OF ANY STATE LEGISLATION ON WAREHOUSING." 

HEARING BEFORE SENATE COMMITTEE ON AGRICULTURE AND FORESTRY ON H.R.
7, 71ST CONG., 3D SESS., P. 10.  AND SEE ID., PP. 22-26. 

INDEPENDENT GIN & W. CO. V. DUNWOODY, 40 F.2D 1, AROSE UNDER THE LAW
AS ORIGINALLY ENACTED.  IT WAS A SUIT BROUGHT BY WAREHOUSEMEN, WHO WERE
LICENSED UNDER THE FEDERAL ACT, TO ENJOIN OFFICIALS OF ALABAMA FROM
ENFORCING PROVISIONS OF ALABAMA WAREHOUSE LAW.  THESE WERE PROVISIONS
REQUIRING PAYMENT OF A GRADUATED LICENSE OR PRIVILEGE TAX, FOR THE
GIVING OF A BOND, FOR THE OBTAINING OF A LICENSE AND FOR SUBMISSION TO
STATE REGULATION CONCERNING THE SUITABILITY AND ADEQUACY OF THE
WAREHOUSE STRUCTURE, THE CHARACTER OF RECORDS TO BE KEPT, THE
INSPECTION OF THE WAREHOUSE BUILDINGS AND THE AUDIT OF THE BOOKS. 
AGR.  CODE ALA. 1927, SECS. 388-407.  THE FEDERAL ACT WAS CONSTRUED NOT
TO EXCLUDE SUCH STATE REGULATION. 

FN5  SECTION 2 OF THE ACT INCLUDES IN THE DEFINITION OF "WAREHOUSE"
EVERY BUILDING "IN WHICH ANY AGRICULTURAL PRODUCT IS OR MAY BE STORED
FOR INTERSTATE OR FOREIGN COMMERCE  ...  " 

FN6  THE REGULATIONS ARE CONTAINED IN 7 C.F.R., PART 102. 

FN7  SEE NOTE 2, SUPRA. 

FN8  THE REGULATIONS PROMULGATED UNDER THE FEDERAL ACT IMPLEMENT
THESE PROVISIONS.  REG. 5, SEC. 12 PROVIDES THAT LICENSED WAREHOUSEMEN
SHALL ACCEPT GRAIN FOR STORAGE AND DELIVER GRAIN OUT OF STORAGE IN
ACCORDANCE WITH THE GRADES OF SUCH GRAIN DETERMINED BY A FEDERAL
INSPECTOR.  REG. 5, SEC. 16 PROVIDES THAT SUCH WAREHOUSEMEN SHALL
DELIVER TO THE LAWFUL HOLDER OF A RECEIPT GRAIN OF THE GRADE AND
QUANTITY NAMED IN THE RECEIPT.  REG. 5, SEC. 18 PROVIDES THAT GRAIN OF
DIFFERENT GRADES MAY NOT BE MIXED EXCEPT, INTER ALIA, WHEN THE IDENTITY
OF THE GRAIN TO BE STORED IS TO BE PRESERVED. 

FN9  SEE NOTE 2, SUPRA. 

FN10  AND SEE SEC. 23 REQUIRING REPORTS TO THE SECRETARY "CONCERNING
SUCH WAREHOUSE AND THE CONDITION, CONTENTS, OPERATION, AND BUSINESS
THEREOF" AND PROVIDING THAT THE LICENSEE "SHALL CONDUCT SAID WAREHOUSE
IN ALL OTHER RESPECTS IN COMPLIANCE WITH THIS ACT AND THE RULES AND
REGULATIONS MADE HEREUNDER." 

FN11  THE SENATE REPORT ALSO STATED, P. 2: 

"BANKERS HAVE REPEATEDLY POINTED OUT THAT THIS SECTION OF THE
WAREHOUSE ACT IS ITS WEAKEST FEATURE.  THIS AMENDMENT WILL CLARIFY AND
REMOVE MANY UNCERTAINTIES FROM THE CREDIT MAN'S VIEWPOINT.  AS THE LAW
NOW READS, FOR FEAR THE FEDERAL ACT MAY BE NEGATIVED BY STATE
LEGISLATION OR REGULATION, A BANKER IS OBLIGED TO FOLLOW CLOSELY THE
LAWS OF THE 48 DIFFERENT STATES, THE REGULATIONS THEREUNDER, AND THE
ADMINISTRATIVE RULINGS THEREUNDER.  THIS IS AN IMPOSSIBLE TASK.  THE
SUGGESTED AMENDMENT WILL PLACE THE FEDERAL ACT INDEPENDENT OF STATE
ACTS AND SHOULD ENHANCE THE VALUE OF RECEIPTS FOR COLLATERAL
PURPOSES." 

AND SEE H.R. REP. NO. 4, 71ST CONG., 1ST SESS.  AS STATED IN NOTE 4,
SUPRA, THE AMENDMENT WAS RECOMMENDED BY THE SECRETARY OF AGRICULTURE
"SO AS TO MAKE THE FEDERAL WAREHOUSE ACT INDEPENDENT OF ANY STATE
LEGISLATION ON WAREHOUSING." 

FN12  THAT IS, OF COURSE, SUBJECT TO THOSE EXPRESS EXCEPTIONS IN THE
WAREHOUSE ACT WHICH SUBJECT PHASES OF THE BUSINESS TO STATE LAW.  SEE
E.G., SECS. 18 AND 20. 

FN13  THE BASIC PROGRAM REFLECTED IN THE ACT WAS DESCRIBED IN H.R.
REP. NO. 60, 64TH CONG., 1ST SESS., P. 1, AS FOLLOWS: 

"THE OUTBREAK OF THE EUROPEAN WAR EMPHASIZED THE FACT THAT THE FARM
MARKETING MACHINERY OF THIS COUNTRY IS SERIOUSLY WEAK, INSUFFICIENT,
AND INADEQUATE - A CONDITION WHICH ALREADY HAD BEEN MORE OR LESS
RECOGNAIZED BY STUDENTS OF FARM ECONOMICS.  FROM A VERY THOROUGH STUDY
OF OUR SYSTEM OF MARKETING THERE WILL APPEAR:  (1) A LACK OF ADEQUATE
STORAGE FACILITIES; (2) A LACK OF PROPER CONTROL AND REGULATION OF SUCH
STORAGE SYSTEMS AS EXIST; (3) AN ABSENCE OF UNIFORMITY IN THEIR METHODS
OF OPERATION AND THE FORM OF RECEIPTS ISSUED; (4) A MULTIPLICITY OF
STANDARDS FOR GRADING AND CLASSIFICATION, OR IN SOME CASES AN ENTIRE
ABSENCE OF SUCH STANDARDS FOR GRADING AND CLASSIFICATION; (5) A LACK OF
DISINTERESTED GRADERS, CLASSIFIERS, AND WEIGHERS; (6) A LACK OF PROPER
RELATIONSHIP BETWEEN THE STORAGE AND BANKING SYSTEMS OF THE COUNTRY. 

"THE INAUGURATION UNDER THIS BILL OF A PERMISSIVE SYSTEM OF
WAREHOUSES LICENSED AND BONDED UNDER AUTHORITY OF THE FEDERAL
GOVERNMENT FOR THE STORAGE OF STAPLE AND NONPERISHABLE AGRICULTURAL
PRODUCTS UPON WHICH UNIFORM RECEIPTS MAY BE ISSUED, THE WEIGHTS AND
GRADES OF THE PRODUCTS SPECIFIED THEREIN HAVING BEEN PREVIOUSLY
DETERMINED BY LICENSED WEIGHERS AND GRADERS IN ACCORDANCE WITH
GOVERNMENT STANDARDS, WOULD GO FAR IN THE DIRECTION OF STANDARDIZING
WAREHOUSE CONSTRUCTION, STORAGE CONDITIONS, INSURANCE, ACCOUNTING,
FINANCING, AND THE HANDLING AND MARKETING OF FARM PRODUCTS." 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE RUTLEDGE CONCURS,
DISSENTING. 

MORE THAN SEVENTY YEARS AGO THIS COURT UPHELD THE REGULATION OF GRAIN
WAREHOUSING RATES BY ILLINOIS AND DID SO DESPITE THE RELATION OF THE
GREAT GRAIN ELEVATORS TO INTERSTATE COMMERCE.  MUNN V. ILLINOIS, 94
U.S. 113; AND SEE BUDD V. NEW YORK, 143 U.S. 517.  STATE REGULATION OF
GRAIN ELEVATORS HAD BECOME SO MUCH PART OF OUR ECONOMIC AND POLITICAL
FABRIC, AND SO IMPORTANT WAS IT DEEMED THAT THE STATE LAWS REMAIN IN
FULL FORCE, THAT WHEN CONGRESS, IN 1916, PASSED THE FIRST WAREHOUSE ACT
(PART C OF THE ACT OF AUGUST 11, 1916, 39 STAT. 446, 486), IT MADE THAT
ACT SUBORDINATE TO THE REQUIREMENTS OF STATE LAWS.  THE COURT NOW HOLDS
THAT BY THE 1931 AMENDMENT TO THAT ACT, 46 STAT. 1463, CONGRESS NOT
ONLY MADE THE FEDERAL LEGISLATION INDEPENDENT OF STATE LAW TO THE FULL
SCOPE OF FEDERAL REGULATION, BUT ALSO NULLIFIED THE EXTENSIVE NETWORK
OF STATE LAWS REGULATING WAREHOUSES, EVEN THOUGH SUCH LAWS, IN THEIR
ACTUAL OPERATION, IN NOWISE CONFLICT WITH THE OPERATION OF THE FEDERAL
LAW.  THE COURT THEREBY UPROOTS A VAST BODY OF STATE ENACTMENTS WHICH
IN THEMSELVES DO NOT COLLIDE WITH THE LICENSING POWERS OF THE SECRETARY
OF AGRICULTURE.  IT DOES SO ON THE GROUND THAT CONGRESS, BY THE 1931
AMENDMENT, PROVIDED THAT "THE POWER, JURISDICTION, AND AUTHORITY
CONFERRED UPON THE SECRETARY OF AGRICULTURE UNDER THIS ACT SHALL BE
EXCLUSIVE WITH RESPECT TO ALL PERSONS SECURING A LICENSE HEREUNDER SO
LONG AS SAID LICENSE REMAINS IN EFFECT." 

THE DECISION OF THE CASE TURNS ON THE "POWER, JURISDICTION, AND
AUTHORITY" THAT CONGRESS HAS DEPOSITED WITH THE SECRETARY OF
AGRICULTURE TO THE EXCLUSION OF ACTION BY A STATE.  I COULD UNDERSTAND,
THOUGH THAT IS NOT MY VIEW, A HOLDING THAT ONCE A WAREHOUSEMAN CHOOSES
TO OBTAIN A FEDERAL LICENSE, HE IS QUIT OF AMENABILITY TO STATE LAW
RELATING TO THE BUSINESS OF WAREHOUSING AS SUCH.  ON THE OTHER HAND,
THE AMENDMENT OF 1931 MAY BE READ, WITHOUT VIOLENCE TO ITS LANGUAGE, AS
DESIGNED NOT TO DISPLACE ALL STATE REGULATION OF WAREHOUSING, BUT
MERELY TO PREVENT CONFLICT OR EVEN CONCURRENCE AS TO THE VERY MATTERS
WITH WHICH THE SECRETARY OF AGRICULTURE CAN DEAL.  THIS WOULD LEAVE
STATE LAW TO OPERATE WHERE IT COULD WITHOUT IMPINGING ON THE LIMITED
REGULATORY FUNCTIONS ASSUMED BY THE FEDERAL GOVERNMENT.  SUCH IS MY
VIEW.  THE COURT'S CONCLUSION IS A KIND OF ADMIXTURE OF THESE TWO
VIEWS.  TODAY'S DECISION, APPARENTLY, DOES NOT ALTOGETHER FREE
FEDERALLY LICENSED WAREHOUSES FROM STATE WAREHOUSE REGULATION, NOR YET
SUBJECT THEM TO STATE LAWS, EVEN THOUGH THESE STATE LAWS MAY
HARMONIOUSLY FUNCTION WITHOUT IMPINGING ON THE LICENSING POWERS OF THE
SECRETARY.  TO MY WAY OF THINKING, THE JUSTIFICATION FOR CONCEDING AN
UNDEFINED AREA TO THE STATES EQUALLY JUSTIFIES LEAVING TO THE STATES
ALL THAT IS NOT IRRECONCILABLE WITH THE FULL EXERCISE OF THE LICENSING
AUTHORITY GIVEN TO THE SECRETARY OF AGRICULTURE. 

THE FACTS OF THE CASE ARE NOT IN DISPUTE.  RICE, AN OWNER AND SHIPPER
OF GRAIN, FILED WITH THE ILLINOIS COMMERCE COMMISSION A COMPLAINT
CHARGING RESPONDENT WAREHOUSE OWNERS WITH VIOLATIONS OF THE ILLINOIS
PUBLIC UTILITY ACT (ILL. REV. STATS. 1945, C. 111-2/3), THE ILLINOIS
GRAIN WAREHOUSE ACT (ILL. REV. STATS. 1945, C. 114 SECS. 293-326(A)),
AND ART. XIII OF THE ILLINOIS CONSTITUTION.  THE VIOLATIONS CHARGED
INCLUDE OPERATION WITHOUT A STATE LICENSE, EXACTION OF UNREASONABLE
RATES, FAILURE TO PUBLISH RATES, FAILURE TO PROVIDE APPROPRIATE
FACILITIES, IMPROPER MIXING OF GRADES, DISCRIMINATION IN RATES, AND
CONFLICT OF INTERESTS AS GRAIN-DEALER AND WAREHOUSEMAN.  THE
RESPONDENTS MOVED TO DISMISS THE COMPLAINT ON THE GROUND THAT FEDERAL
LICENSE PLACED THEM UNDER THE EXCLUSIVE JURISDICTION OF THE UNITED
STATES WAREHOUSE ACT, AND THE STATE'S AUTHORITY WAS ENTIRELY
SUPERSEDED.  UPON DENIAL OF THIS MOTION BY THE ILLINOIS COMMERCE
COMMISSION, RESPONDENTS APPLIED TO THE UNITED STATES DISTRICT COURT FOR
AN INJUNCTION AGAINST FURTHER STATE PROCEEDINGS.  WHAT IS BEFORE US IS
THE RULING OF THE CIRCUIT COURT OF APPEALS THAT THE DISTRICT COURT HAD
ERRED IN NOT GRANTING THE INJUNCTION.    THIS COURT NOW ORDERS THE
PROCEEDINGS BEFORE THE ILLINOIS COMMERCE COMMISSION TO BE ENJOINED,
WITHOUT KNOWLEDGE ON OUR PART WHAT IT IS THAT ILLINOIS WOULD EXACT OF
RESPONDENTS.  IT HAS NOT YET BEEN DECIDED BY THE AUTHORITATIVE VOICE OF
ILLINOIS LAW, THE SUPREME COURT OF ILLINOIS, WHICH OF HER REGULATORY
REQUIREMENTS WOULD SURVIVE RESPECT BY THAT COURT FOR THE CONTROLLING
FEDERAL ACT.  THIS COURT HAS HERETOFORE ACTED ON THE WISE RULE THAT IT
WILL NOT "ASSUME IN ADVANCE THAT A STATE WILL SO CONSTRUE ITS LAW AS TO
BRING IT INTO CONFLICT WITH THE FEDERAL CONSTITUTION OR AN ACT OF
CONGRESS."  ALLEN-BRADLEY LOCAL V. BOARD, 315 U.S. 740, 746.  THE SUIT
IN THE DISTRICT COURT WAS, IN ANY EVENT, PREMATURE.  IT SHOULD, ON
FAMILIAR PRINCIPLES, BE ORDERED HELD IN THE DISTRICT COURT UNTIL THE
CLAIM OF ILLINOIS MAY BE AUTHORITATIVELY ASCERTAINED IN THE STATE
COURTS, THEREBY PERHAPS AVOIDING A CLAIM OF CONFLICT BETWEEN STATE AND
FEDERAL LEGISLATION.  COMPARE THE SERIES OF CASES FROM THOMPSON V.
MAGNOLIA PETROLEUM CO., 309 U.S. 478, TO SPECTOR MOTOR CO. V.
MCLAUGHLIN, 323 U.S. 101. 

ON THE MERITS OF THE CONTROVERSY OUR PROBLEM IS TO DETERMINE WHAT
FREEDOM TO REGULATE ITS GRAIN WAREHOUSES HAS BEEN LEFT TO ILLINOIS,
AFTER CONGRESS EXERCISED ITS CONSTITUTIONAL POWER OVER SUCH WAREHOUSES
BY ADOPTING A LICENSING SYSTEM TO BE ADMINISTERED BY THE SECRETARY OF
AGRICULTURE UNDER CLOSELY DEFINED AUTHORITY.  UNDERLYING THE PROBLEM IS
THE IMPORTANT FACT THAT WE ARE CONCERNED WITH AN ECONOMIC ENTERPRISE
WHICH, WHILE IT HAS IMPORTANT RADIATIONS BEYOND STATE BOUNDS, DOES NOT
THEREBY LOSE SPECIAL RELATIONS TO THE STATE IN WHICH IT IS CONDUCTED. 
AND SO WE HAVE ONCE MORE THE DUTY OF JUDICIALLY ADJUSTING THE INTERESTS
OF BOTH THE NATION AND THE STATE, WHERE CONGRESS HAS NOT CLEARLY
ASSERTED ITS POWER OF PREEMPTION SO AS TO LEAVE NO DOUBT THAT THE
SEPARATE INTERESTS OF THE STATES ARE LEFT WHOLLY TO NATIONAL
PROTECTION. 

THE GENERAL CONSIDERATIONS TO BE TAKEN INTO ACCOUNT IN STRIKING A
BALANCE, AND NOT TO BE ACKNOWLEDGED MERELY PLATONICALLY, HAVE BEEN
INDICATED IN MY OPINION IN BETHLEHEM STEEL CO. V. NEW YORK STATE LABOR
RELATIONS BOARD, 330 U.S. 767.  SUFFICE IT TO SAY THAT DUE REGARD FOR
OUR FEDERALISM, IN ITS PRACTICAL OPERATION, FAVORS SURVIVAL OF THE
RESERVED AUTHORITY OF A STATE OVER MATTERS THAT ARE THE INTIMATE
CONCERN OF THE STATE UNLESS CONGRESS HAS CLEARLY SWEPT THE BOARDS OF
ALL STATE AUTHORITY, OR THE STATE'S CLAIM IS IN UNMISTAKABLE CONFLICT
WITH WHAT CONGRESS HAS ORDERED. 

ASSUMING THAT THE UNDEFINED SCOPE OF ILLINOIS LAW COVERS ALL THE
RELIEF SOUGHT BEFORE THE ILLINOIS COMMISSION, IT IS NOT SUGGESTED THAT
THERE IS ACTUAL CONFLICT BETWEEN THE LIMITED FEDERAL CONTROL THROUGH
THE LICENSING DEVICE AND THE POLICY OF ILLINOIS.  INDEED, IT SEEMS TO
BE ADMITTED THAT THE ENFORCEMENT OF THE STATE ACT MIGHT WELL
EFFECTUATE, AT LEAST IN SOME ASPECTS, THE POLICY OF THE FEDERAL
STATUTE.  MOREOVER, DESPITE A STATEMENT IN THE HOUSE REPORT THAT THE
PURPOSE OF THE 1931 AMENDMENT WAS TO MAKE THE ACT "INDEPENDENT OF ANY
STATE LEGISLATION ON THE SUBJECT" (H. REP. NO. 2314, 70TH CONG., 2D
SESS., P. 4), THE COURT DOES NOT FIND THAT IN MAKING "THE POWER,
JURISDICTION, AND AUTHORITY CONFERRED UPON THE SECRETARY OF AGRICULTURE
...  EXCLUSIVE WITH RESPECT TO ALL PERSONS SECURING A LICENSE"
CONGRESS INSULATED SUCH LICENSED WAREHOUSEMEN FROM FURTHER REGULATION
BY A STATE.  WHAT THE COURT HOLDS IS THAT IF CONGRESS HAS TOUCHED A
SUBJECT MATTER IT BECOMES UNTOUCHABLE BY THE STATE, THOUGH THERE IS
NEITHER PAPER NOR OPERATING CONFLICT BETWEEN FEDERAL AND STATE SPHERES
OF AUTHORITY.  THUS, WHILE CONGRESS HAS NOT GIVEN TO THE SECRETARY OF
AGRICULTURE RATE-FIXING POWER, CONGRESS, IT IS SAID, HAS INFERENTIALLY
DEPRIVED ILLINOIS OF THE POWER SHE HAS EXERCISED FOR SEVENTY YEARS TO
FIX GRAIN WAREHOUSE RATES. 

I CANNOT AGREE.  AS TO RATES, FOR EXAMPLE, CONGRESS HAS MERELY GIVEN
THE SECRETARY POWER TO REVOKE A LICENSE IF ITS HOLDER CHARGES
"UNREASONABLE OR EXORBITANT" RATES.  THE PRACTICAL ASSUMPTION, I
SUBMIT, IS NOT THAT CONGRESS HAS PUT AN END TO THE TRIED MACHINERY FOR
RATE-FIXING BY THE STATES WITHOUT PUTTING ANOTHER IN ITS PLACE.  IT IS
RATHER THAT IT WOULD PERMIT ITS LICENSING AUTHORITY TO AVAIL ITSELF OF
THE FACILITIES OF THE ESTABLISHED RATE-FIXING AGENCIES OF THE STATES
AND COOPERATE WITH THEM IN ASCERTAINING WHETHER ILLINOIS LICENSEES ARE
CHARGING "UNREASONABLE AND EXORBITANT" RATES.  SUCH WOULD BE THE
PRACTICALITIES OF GOVERNMENT WHERE BOTH STATE AND NATION HAVE
CONVERGING YET SEPARATE INTERESTS, AND SUCH AUTHORIZED COLLABORATION
BETWEEN NATIONAL AND STATE GOVERNMENTS SHOULD BE THE ASSUMPTION IN
CONSTRUING THE ACT UNLESS CONGRESS HAS LEFT NO DOUBT THAT IT WAS SO
BENT ON AVOIDANCE OF ALL POSSIBLE CONFLICT THAT IT LEFT NO ROOM FOR
CONCERT.  INDEED, THE VERY SECTION WHICH CONFERS "EXCLUSIVE" AUTHORITY
UPON THE SECRETARY OF AGRICULTURE AUTHORIZES HIM "TO COOPERATE WITH
STATE OFFICIALS CHARGED WITH THE ENFORCEMENT OF STATE LAWS RELATING TO
WAREHOUSES  ...  " 46 STAT. 1465. 

BY THE UNITED STATES WAREHOUSE ACT, CONGRESS DID NOT UNDERTAKE A
GENERAL, AFFIRMATIVE REGULATION OF WAREHOUSES, EVEN REMOTELY COMPARABLE
TO ITS REGULATION OF OTHER PUBLIC UTILITIES.  THE ACT WAS INITIATED AS
WAREHOUSE RECEIPTS LEGISLATION, WRITTEN WITH THE UNIFORM WAREHOUSE
RECEIPTS ACT IN MIND.  NEITHER THE LANGUAGE NOR THE HISTORY OF THE 1931
AMENDMENT MARKS A DEPARTURE FROM THE BASIC DESIGN AND POLICY OF THE
LEGISLATION.  CONGRESS DID NOT SEE FIT TO ESTABLISH A COMPULSORY,
UNIFORM, NATION-WIDE SYSTEM FOR THE REGULATION OF GRAIN WAREHOUSES,
ESSENTIAL LINKS THOUGH THEY BE IN THE CHAIN OF INTERSTATE COMMERCE. 
NOR DID CONGRESS AUTHORIZE THE SECRETARY OF AGRICULTURE TO FORMULATE
AND ENFORCE SUCH A SYSTEM.  EVEN IN ITS LIMITED ASPECT, THE ACT DOES
NOT APPLY TO ALL WAREHOUSES AFFECTING INTERSTATE COMMERCE.  INDEED,
CONGRESS EXERCISED NO COMPULSION OVER ANY WAREHOUSE.  CONGRESS MERELY
OFFERED TO THOSE WHO DESIRED IT THE PRIVILEGE OF BEING A FEDERAL
LICENSEE.  ANYONE WHO WISHED MIGHT CONTINUE TO OPERATE AS A
WAREHOUSEMAN WITHOUT A FEDERAL LICENSE.  AS TO THESE THERE IS NO
QUESTION BUT THAT STATE LAW CONTROLS.  AND EVEN THOSE WHO OBTAIN A
FEDERAL LICENSE CANNOT BE COMPELLED TO PERFORM ANY POSITIVE DUTIES. 
EXCEPT FOR CERTAIN PENALTIES FOR FRAUD, THE ONLY SANCTION FOR
DISOBEDIENCE OF THE FEW DUTIES IMPOSED IS LOSS OF THE LICENSE. 

CONGRESS WAS CONTENT TO ALLOW TWO WAREHOUSEMEN IN SIMILAR
CIRCUMSTANCES TO OPERATE UNDER DIFFERENT RULES IF ONE CHOSE TO SEEK A
FEDERAL LICENSE AND THE OTHER DID NOT.  IT OFFERED PERQUISITES INCIDENT
TO SUCH A LICENSE TO A WAREHOUSEMAN WHO WANTED THEM.  SUCH A SCHEME
DOES NOT PERSUASIVELY INDICATE A PURPOSE TO FREE SUCH A FEDERAL
LICENSEE FROM REGULATIONS TO WHICH OTHERS ARE SUBJECT AND WHICH ARE NOT
IN PRACTICAL CONFLICT WITH THE REQUIREMENTS OF THE FEDERAL LAW.  FOR
INSTANCE, HAS CONGRESS REALLY EXPRESSED WITH REASONABLE CLARITY ITS
PURPOSE TO FORBID TO THE STATES THE FIXING OF WAREHOUSE RATES AND THUS
DEPRIVE THE STATES OF A LONG-STANDING REGULATORY POWER WHICH THE UNITED
STATES CHOSE NOT TO ASSUME?  IS IT NOT MORE CONSISTENT WITH A PROPER
REGARD FOR THE INTERPLAY OF STATE AND NATIONAL INTERESTS TO ASSUME THAT
CONGRESS WAS IMPOSING A MINIMUM OF REGULATION FOR THOSE WHO ACCEPTED
FEDERAL LICENSES RATHER THAN TO ASSUME THAT BY INFERENTIAL
STERILIZATION OF STATE LAWS CONGRESS MEANT TO MAKE ITS OPTIONAL AND
RESTRICTED REQUIREMENTS THE MAXIMUM?  THE "POWER, JURISDICTION, AND
AUTHORITY" OF THE SECRETARY OF AGRICULTURE WHICH AFTER 1931 WAS TO BE
"EXCLUSIVE" ARE GIVEN FULL AND FAIR SCOPE IF MADE TO REFER ONLY TO
POWERS THAT THE SECRETARY CAN EFFECTIVELY EXERCISE.  THERE IS EXCLUSION
OF STATE POWER AS TO WHAT THE ACT, SUBSTANTIVELY SPEAKING, INCLUDES,
BUT NOT EXCLUSION OF A VAST POTENTIAL FIELD OF WAREHOUSE REGULATION,
NOT WITHIN THE ACTIVE RANGE OF FEDERAL ADMINISTRATION, SIMPLY BECAUSE
CONGRESS DEALT WITH A SMALL PART OF IT, AND THAT ONLY CONDITIONALLY. 

NOR IS THERE ANYTHING IN THE HISTORY OF THE FEDERAL ACT WHICH
REQUIRES SUCH DESTRUCTIVE CONSEQUENCES TO A LONG-STANDING BODY OF STATE
ENACTMENTS.  WHEN THE 1916 ACT WAS PASSED, CONGRESS EMPHASIZED THE NEED
FOR STATE REGULATION BY SUBORDINATING FEDERAL ACTION TO SUCH
REGULATION.  BY 1931 FORTY STATES HAD LAWS REGULATING WAREHOUSES, LAWS
WHICH AT LEAST IN SOME ASPECT DID NOT CONFLICT WITH THE POWERS VESTED
IN THE SECRETARY OF AGRICULTURE.  AN IMPRESSIVELY LARGE NUMBER OF
STATES FIXED WAREHOUSE RATES.  THE COURT NOW FINDS IN THE LEGISLATIVE
HISTORY OF THE 1931 AMENDMENT A PURPOSE TO WIPE OUT ALL THESE
REGULATIONS AS TO THE HOLDERS OF FEDERAL LICENSES. 

THAT AMENDMENT ELIMINATED THE SUBSERVIENCE OF THE FEDERAL ACT TO THE
LAWS OF THE STATES, FOR SUCH SUBSERVIENCE REALLY NULLIFIED THE
PRACTICAL PURPOSES AT WHICH CONGRESS AIMED IN 1916 BY A VOLUNTARY
FEDERAL LICENSING SYSTEM.  THE PURPOSE WAS TO MAKE "THE FEDERAL ACT
INDEPENDENT OF STATE LAWS."  AND TO "PLACE THE FEDERAL ACT ON ITS OWN
BOTTOM."  WHILE SUCH LANGUAGE IN A COMMITTEE REPORT, TREATED MERELY AS
WORDS, MIGHT BE INTERPRETED AS AN IMPLICIT, ROUGHSHOD DECIMATION OF
STATE AUTHORITY OVER ANY ASPECT OF WAREHOUSING WHICH THE FEDERAL
LICENSING SYSTEM TOUCHED, HOWSOEVER MEAGERLY AND INDIRECTLY, IT IS MORE
CONSONANT WITH A DUE REGARD FOR FEDERAL-STATE RELATIONS TO FIND THAT
THE DOMINATING OBJECT OF THE LEGISLATION CONTROLS WHAT WAS MEANT BY
"INDEPENDENT OF STATE LAWS."  FOR THE DOMINANT OBJECT WAS REMOVAL OF
THOSE MATTERS WHICH WERE ENTRUSTED TO THE SECRETARY OF AGRICULTURE FROM
SUBORDINATION TO STATE ACTION.  BY SAVING THE AUTHORITY WHICH IT HAD
GIVEN TO THE SECRETARY OF AGRICULTURE FROM BEING RENDERED FUTILE BY
STATE LAWS, CONGRESS OUGHT NOT TO BE HELD TO HAVE NULLIFIED STATE LAWS
WHOSE CONTINUING FORCE WOULD NOT HAMPER THE SECRETARY OF AGRICULTURE IN
EXERCISING THE POWERS THAT CONGRESS GAVE HIM.  EVIDENCE IS LACKING THAT
CONGRESS FELT THAT THE CORRECTION OF THE INADEQUACY WHICH HAD REVEALED
ITSELF REGARDING THE 1916 ACT REQUIRED WITHDRAWAL OF FEDERAL LICENSE
HOLDERS FROM THE REQUIREMENTS OF NON-CONFLICTING STATE REGULATION.  SO
LONG AS FULL SCOPE CAN BE GIVEN TO THE AMENDATORY LEGISLATION WITHOUT
UNDERMINING NON-CONFLICTING STATE LAWS, NOTHING BUT THE CLEAREST
EXPRESSION SHOULD PERSUADE US THAT THE FEDERAL ACT WIPED OUT STATE
FIXATION OF RATES AND OTHER STATE REQUIREMENTS DEEPLY ROOTED IN THEIR
LAWS.  WHEN NEITHER THE MISCHIEF AT WHICH THE 1931 AMENDMENT WAS
DIRECTED, NOR THE POLICY, TERMS AND STRUCTURE OF WAREHOUSING
LEGISLATION BY CONGRESS IN ITS ENTIRETY NECESSITATE IT, DISREGARD OF
THE DELICATE BALANCE OF FEDERAL-STATE RELATIONS OUGHT NOT TO BE
ATTRIBUTED TO CONGRESS. 

IF SO FUNDAMENTAL A CHANGE WERE DESIGNED, IT WOULD NORMALLY BE
REFLECTED IN THE FINANCIAL PROVISIONS MADE BY CONGRESS, AND IN THE
REPORTS ON THE ADMINISTRATION OF THE ACT.  THE APPROPRIATIONS FOR
ADMINISTERING THE UNITED STATES WAREHOUSE ACT SHOW NO SUBSTANTIAL
INCREASE AS A CONSEQUENCE OF THE 1931 AMENDMENT.  FOR THE YEARS
PRECEDING AND THOSE IMMEDIATELY FOLLOWING THE AMENDMENT, THE
APPROPRIATIONS WERE: 

1929(45 STAT. 539, 563)...............$240,320 

1930(45 STAT. 1189, 1214)............. 256,000 

1931(46 STAT. 392, 419)............... 241,000 

1932(46 STAT. 1242, 1270)............. 312,200 

1933(47 STAT. 609, 638)............... 313,020 

1934(47 STAT. 1432, 1460)............. 296,220 

1935(48 STAT. 467, 494)............... 271,383* 

*THE MORE SUBSTANTIAL INCREASES IN APPROPRIATION AFTER 1935 SEEM TO
BE DUE TO AN INCREASE IN THE VOLUME OF LICENSING, NOT TO AN EXTENSION
OF THE FIELDS OF SUPERVISION. 

MOREOVER, THOSE CHARGED WITH THE ENFORCEMENT OF THE ACT SEEM TO HAVE
BEEN UNMINDFUL OF THE FAR-REACHING CONSEQUENCES NOW IMPUTED TO IT.  THE
REPORTS OF THE SECRETARY OF AGRICULTURE, OF THE CHIEF OF THE BUREAU OF
AGRICULTURAL ECONOMICS, AND OF THE CHIEF OF AGRICULTURAL MARKETING
SERVICE, FOR THE YEARS AFTER 1931, DISCLOSE ADMINISTRATIVE ATTITUDES
AND PRACTICES NO DIFFERENT FROM THOSE OF PRECEDING YEARS.  NO MENTION
IS MADE OF THE STATE LAWS WHICH, THE COURT NOW HOLDS, WERE SUPERSEDED
THOUGH NOT CONFLICTING WITH FEDERAL ADMINISTRATION.  IN CITING THE
ADVANTAGES INCIDENT TO A FEDERAL LICENSE, NO MENTION APPEARS OF SO
IMPORTANT AN ITEM AS RELIEF FROM EXISTING STATE REGULATIONS. 

THE HISTORY OF THE FEDERAL ACT SHOWS THAT AT NO TIME HAS CONGRESS
DEEMED IT DESIRABLE TO INTRODUCE COMPULSORY UNIFORMITY OF WAREHOUSE
REGULATION.  BY FREEING FEDERAL LICENSEES FROM OVERRIDING STATE
REGULATION CONGRESS WAS NOT BY INDIRECTION SEEKING TO CREATE SUCH A
UNIFORM SYSTEM.  BUT THE EFFECT OF THE INTERPRETATION NOW GIVEN TO THE
1931 AMENDMENT IS THE ESTABLISHMENT OF UNIFORMITY OF NON-REGULATION, IN
THAT IT INTRODUCES LAISSEZ FAIRE OUTSIDE THE VERY NARROW SCOPE OF THE
SECRETARY'S POWERS.  IT IS EASY TO EXAGGERATE THE DANGER OF UNDESIRABLE
CONSEQUENCES FLOWING FROM A REJECTED CONSTRUCTION.  BUT SURELY ONE DOES
NOT DRAW ON IDLE FEARS IN SUGGESTING THAT AS A RESULT OF TODAY'S
DECISION THE GATES OF ESCAPE FROM DEEPLY ROOTED STATE REQUIREMENTS WILL
BE OPEN, ALTHOUGH CONGRESS ITSELF HAS NOT AUTHORIZED FEDERAL AUTHORITY
TO TAKE OVER THE REGULATION OF SUCH ACTIVITIES AND THOUGH THEIR STATE
ENFORCEMENT DOES NOT AT ALL CONFLICT WITH, BUT RATHER PROMOTES, THE
LIMITED OVERSIGHT OF WAREHOUSES THUS FAR ASSUMED BY THE FEDERAL
GOVERNMENT.  THE COURT DISPLACES SETTLED AND FRUITFUL STATE AUTHORITY
THOUGH IT CANNOT REPLACE IT WITH FEDERAL AUTHORITY. 
..END :

















RICE V. CHICAGO BOARD OF TRADE, 331 U.S. 247 


ARGUED FEBRUARY 14, 1947.  - DECIDED MAY 5, 1947.  - 156 F.2D 33,
REVERSED. 


1.  BY THE COMMODITY EXCHANGE ACT, THE UNITED STATES HAS NOT SO
OCCUPIED AND PREEMPTED THE FIELD OF REGULATION OF BOARDS OF TRADE
DESIGNATED "CONTRACT MARKETS" AS TO DEPRIVE THE STATES OF AUTHORITY TO
REGULATE TRADING IN FUTURES, EXCEPT TO THE EXTENT THAT THE STATE
REGULATIONS MAY CONFLICT WITH THE FEDERAL REGULATIONS.  PP. 250-255. 

2.  UNTIL A STATE HAS ADOPTED APPLICABLE RULES ON THE SUBJECT, IT
CANNOT BE KNOWN WHETHER THE STATE REGULATIONS WILL CONFLICT WITH THE
FEDERAL REGULATIONS AND ANY CLAIM OF SUPERSEDURE IS PREMATURE.  PP. 255
256. 

RICE ET AL. V. BOARD OF TRADE OF THE CITY OF CHICAGO. 

NO. 471.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT* . 

*TOGETHER WITH NO. 473, ILLINOIS COMMERCE COMMISSION ET AL. V. BOARD
OF TRADE OF THE CITY OF CHICAGO, ALSO ON CERTIORARI TO THE SAME COURT. 

A DISTRICT COURT DISMISSED COMPLAINTS SEEKING TO ENJOIN PROCEEDINGS
BEFORE THE ILLINOIS COMMERCE COMMISSION IN WHICH THE CHICAGO BOARD OF
TRADE HAD BEEN JOINED AS A DEFENDANT.  THE CIRCUIT COURT OF APPEALS
REVERSED.  156 F.2D 33.  THIS COURT GRANTED CERTIORARI.  329 U.S. 701. 
REVERSED, P. 256. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BLACK. 

THESE ARE COMPANION CASES TO RICE V. SANTA FE ELEVATOR CORP. AND
ILLINOIS COMMERCE COMMISSION V. SANTA FE ELEVATOR CORP., ANTE, P. 218,
DECIDED THIS DAY.  RESPONDENT IN THESE CASES, THE CHICAGO BOARD OF
TRADE, WAS JOINED AS A DEFENDANT IN THE PROCEEDING BROUGHT BY RICE
BEFORE THE ILLINOIS COMMERCE COMMISSION.  AS WE HAVE NOTED IN OUR
OPINION IN THE COMPANION CASES, THE RICE COMPLAINT CHARGED THE
DEFENDANT WAREHOUSEMEN WITH MAINTAINING EXCESSIVE, UNREASONABLE AND
DISCRIMINATORY RATES AND PRACTICES, WITH OPERATING INADEQUATE AND
UNSAFE FACILITIES AND SERVICES, AND WITH FAILURE TO COMPLY WITH OTHER
REQUIREMENTS OF ILLINOIS LAW.  THE BOARD OF TRADE, ORGANIZED UNDER A
SPECIAL ACT OF THE ILLINOIS LEGISLATURE, OPERATES A COMMERCIAL GRAIN
EXCHANGE AND HAS ADOPTED RULES AND REGULATIONS GOVERNING TRANSACTIONS
ON THE EXCHANGE.  THE COMPLAINT OF RICE CHARGES (1) THAT THE RULES AND
REGULATIONS OF THE BOARD ARE UNREASONABLE AND UNSATISFACTORY IN THAT,
AMONG OTHER THINGS, THEY FAVOR WAREHOUSEMEN AND SELLERS OF GRAIN AND
DISCRIMINATE AGAINST GRAIN BUYERS; AND (2) THAT THE BOARD HAS FROM TIME
TO TIME ADOPTED RULES AND REGULATIONS, RELATING TO THE WAREHOUSING OF
GRAIN IN PUBLIC WAREHOUSES AND THE CUSTODY OF GRAIN IN PRIVATE
WAREHOUSES WITHOUT SECURING THE PRIOR APPROVAL OF THE ILLINOIS
COMMISSION.  UNDER ILLINOIS LAW, IT IS ALLEGED, SUCH RULES MAY NOT
BECOME OPERATIVE WITHOUT APPROVAL BY THE COMMISSION; AND THE COMMISSION
IN TURN HAS AUTHORITY TO ADOPT AND PROMULGATE RULES OF ITS OWN.  ILL.
REV. STATE.  1945, CH. 114, SEC. 194B.  FN1  RELIEF ASKED ON THIS PHASE
OF THE PROCEEDING WAS A DECLARATION THAT THE BOARD'S RULES, WHICH DID
NOT HAVE THE PRIOR APPROVAL OF THE COMMISSION, WERE VOID; AND AN ORDER
THAT THE BOARD ADOPT AND SUBMIT RULES WHICH WERE FAIR, EQUITABLE,
ADEQUATE AND SPECIFIC. 

THE BOARD MOVED TO DISMISS THE PROCEEDING BEFORE THE COMMISSION ON
THE GROUND THAT THE COMMODITY EXCHANGE ACT, 49 STAT. 1491, AS AMENDED,
7 U.S.C. SEC. 1 ET SEQ., AND THE REGULATIONS THEREUNDER SUPERSEDED THE
PROVISIONS OF ILLINOIS LAW WHICH RICE SOUGHT TO INVOKE.  THAT MOTION
WAS DENIED.  THEREUPON, THESE SUITS WERE INSTITUTED IN THE DISTRICT
COURT TO ENJOIN THE PROCEEDINGS BEFORE THE ILLINOIS COMMERCE
COMMISSION.  THE DISTRICT COURT DISMISSED THE COMPLAINTS.  THE CIRCUIT
COURT OF APPEALS REVERSED.  156 F.2D 33.  THE CASES ARE HERE ON
CERTIORARI. 

THE CHICAGO BOARD OF TRADE IS "THE GREATEST GRAIN MARKET IN THE
WORLD."  BOARD OF TRADE V. OLSEN, 262 U.S. 1, 33.  ITS ACTIVITIES HAVE
BEEN REGULATED BY CONGRESS BY THE FUTURE TRADING ACT, 42 STAT. 187, BY
THE GRAIN FUTURES ACT, 42 STAT. 998, AND BY THE COMMODITY EXCHANGE
ACT.  SEE H.R. REP. NO. 421, 74TH CONG., 1ST SESS.  THE BOARD OF TRADE
CLAIMS A STATUS UNDER THE COMMODITY EXCHANGE ACT WHICH, IT IS
CONTENDED, PRECLUDES THE ILLINOIS COMMISSION FROM ENTERTAINING THE RICE
COMPLAINT. 

THE COMMODITY EXCHANGE ACT PROVIDES COMPREHENSIVE REGULATION OF
TRADING IN FUTURES ON COMMODITY EXCHANGES WHICH ARE DESIGNATED AS
"CONTRACT MARKETS" BY THE SECRETARY OF AGRICULTURE.  THE SECRETARY IS
AUTHORIZED TO DESIGNATE ANY BOARD OF TRADE AS A CONTRACT MARKET ON ITS
COMPLIANCE WITH PRESCRIBED TERMS AND CONDITIONS.  SEC. 5.  THE CHICAGO
BOARD OF TRADE HAS BEEN SO DESIGNATED.  THE ACT CONTEMPLATES THAT EACH
CONTRACT MARKET WILL ADOPT RULES GOVERNING TRANSACTIONS IN FUTURES
CONTRACTS.  APPROVAL OF A BOARD OF TRADE AS A CONTRACT MARKET MAY BE
MADE ONLY WHEN "THE GOVERNING BOARD THEREOF PROVIDES FOR THE PREVENTION
OF MANIPULATION OF PRICES AND THE CORNERING OF ANY COMMODITY BY THE
DEALERS OR OPERATORS UPON SUCH BOARD."  SEC. 5(D).  THE ACT CONTAINS
PROVISIONS WHICH PROHIBIT CERTAIN TYPES OF TRADING PRACTICES (SEE FOR
EXAMPLE SECS. 4B, 4C, 4H) AND OTHER PROVISIONS (AS FOR EXAMPLE THOSE
DEALING WITH EXCESSIVE SPECULATION, SEE SEC. 4A) WHICH LIMIT OR CONTROL
BUYING AND SELLING ON CONTRACT MARKETS.  BUT WE ARE NOT PARTICULARLY
CONCERNED WITH THOSE PHASES OF THE FEDERAL REGULATORY SCHEME.  SO FAR
AS THE PROBLEM OF SUPERSEDURE IS CONCERNED, THIS ACT IS UNLIKE THE ONE
CONSIDERED IN THE COMPANION CASES, AS WE SHALL SEE.  MOREOVER, THE
SUBJECT MATTER OF THE COMPLAINT FILED BY RICE WITH THE ILLINOIS
COMMISSION AGAINST THE BOARD OF TRADE RELATES ONLY TO THE WAREHOUSING
OF GRAIN.  ON THAT MATTER THE ACT HAS ONLY TWO SPECIFIC PROVISIONS. 

IT PROVIDES IN THE FIRST PLACE THAT RECEIPTS ISSUED UNDER THE UNITED
STATES WAREHOUSE ACT, 39 STAT. 486, AS AMENDED, 7 U.S.C. SEC. 241 ET
SEQ., SHALL BE ACCEPTED WITHOUT DISCRIMINATION IN SATISFACTION OF
FUTURES CONTRACTS MADE ON OR SUBJECT TO THE RULES OF THE CONTRACT
MARKET, EVEN THOUGH THE WAREHOUSEMAN IS NOT ALSO LICENSED UNDER STATE
LAW OR ENJOYS DIFFERENT PRIVILEGES THAN THOSE ACCORDED BY STATE LAW,
PROVIDED INTER ALIA, THAT "THE WAREHOUSE IN WHICH THE COMMODITY IS
STORED MEETS SUCH REASONABLE REQUIREMENTS AS MAY BE IMPOSED BY SUCH
CONTRACT MARKET ON OTHER WAREHOUSES AS TO LOCATION, ACCESSIBILITY, AND
SUITABILITY FOR WAREHOUSING AND DELIVERY PURPOSES."  SEC. 5A (7). 
MOREOVER, EACH CONTRACT MARKET HAS SOME CONTROL OVER WAREHOUSES IN
WHICH OR OUT OF WHICH ANY COMMODITY IS DELIVERABLE ON ANY CONTRACT FOR
FUTURE DELIVERY MADE ON OR SUBJECT TO THE RULES OF THE CONTRACT
MARKET.  THUS THE CONTRACT MARKET MUST REQUIRE THE WAREHOUSE OPERATORS
"TO MAKE SUCH REPORTS, KEEP SUCH RECORDS, AND PERMIT SUCH WAREHOUSE
VISITATION" AS THE SECRETARY MAY PRESCRIBE.  SEC. 5A (3).  ALL RULES
AND REGULATIONS OF A CONTRACT MARKET, AND ALL CHANGES AND PROPOSED
CHANGES, MUST BE FILED WITH THE SECRETARY.  SEC. 5A (1). 

ENOUGH OF THE ACT HAS BEEN SUMMARIZED TO SHOW THAT IT IMPOSES ON
CONTRACT MARKETS, UNDER THE SUPERVISION OF THE SECRETARY, (1) DUTIES OF
PREVENTING OR CONTROLLING CERTAIN TRADING PRACTICES AND OF SUPERVISING
TRANSACTIONS IN FUTURES CONTRACTS, AND (2) SOME RESPONSIBILITY FOR
STANDARDIZING DELIVERABLE WAREHOUSE RECEIPTS AND ASSURING THEIR
INTEGRITY.  THE FAILURE OR REFUSAL OF A BOARD OF TRADE TO COMPLY WITH
THE PROVISIONS OF THE ACT OR ANY OF THE RULES AND REGULATIONS OF THE
SECRETARY IS CAUSE FOR SUSPENSION OR REVOCATION OF THE AUTHORITY OF THE
BOARD TO ACT AS A CONTRACT MARKET.  SEC. 5B.  AND SEE SEC. 6(A). 
CRIMINAL PENALTIES ARE PROVIDED FOR CERTAIN VIOLATIONS OF THE ACT, OR
OF RULES OR REGULATIONS OF THE SECRETARY, BY A BOARD OF TRADE OR ANY OF
ITS DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES.  SECS. 6B, 9.  THE
SECRETARY HAS THE POWER TO "MAKE SUCH INVESTIGATIONS AS HE MAY DEEM
NECESSARY TO ASCERTAIN THE FACTS REGARDING THE OPERATIONS OF BOARDS OF
TRADE  ...  "  SEC. 8.  AND THE SECRETARY IS GIVEN BROAD RULE-MAKING
POWERS.  SEC. 8A (5). 

THE SECRETARY HAS PROMULGATED NUMEROUS RULES AND REGULATIONS COVERING
A VARIETY OF SUBJECTS PERTAINING TO CONTRACT MARKETS AND THEIR
ACTIVITIES.  FN2  THE FOLLOWING ARE RELEVANT HERE, SINCE THEY RELATE TO
THE WAREHOUSING OF GRAIN:  (1) A REQUIREMENT THAT EACH CONTRACT MARKET
FILE INFORMATION CONCERNING WAREHOUSES IN WHICH OR OUT OF WHICH
COMMODITIES ARE DELIVERABLE IN SATISFACTION OF FUTURES CONTRACTS MADE
ON THE CONTRACT MARKET, SEC. 1.43; AND (2) A PROVISION THAT EACH
CONTRACT MARKET SHALL REQUIRE OPERATORS OF WAREHOUSES WHOSE RECEIPTS
ARE DELIVERABLE IN SATISFACTION OF FUTURES CONTRACTS MADE ON OR SUBJECT
TO THE RULES OF THE CONTRACT MARKET (A) TO KEEP SPECIFIED RECORDS, (B)
TO FURNISH INFORMATION CONCERNING STOCKS OF COMMODITIES IN WAREHOUSES,
(C) TO PERMIT VISITATION OF THE PREMISES AND INSPECTION OF THE BOOKS
AND RECORDS BY DULY AUTHORIZED REPRESENTATIVES OF THE FEDERAL
GOVERNMENT.  SEC. 1.44. 

IN PURSUANCE OF THE LATTER REGULATION OF THE SECRETARY, THE BOARD OF
TRADE ENACTED THE RULES AND REGULATIONS WHICH RICE CHALLENGED IN THE
PROCEEDINGS BEFORE THE ILLINOIS COMMISSION.  ONE RULE PROVIDES THAT
DELIVERIES SHALL BE MADE BY DELIVERY OF WAREHOUSE RECEIPTS ISSUED BY
WAREHOUSES WHICH HAVE BEEN DECLARED "REGULAR" BY THE BOARD.  RULE 281. 
THE BOARD'S REGULATIONS RELATING TO WAREHOUSING OF GRAIN SET FORTH THE
PROCEDURE AND STANDARDS BY WHICH WAREHOUSES MAY BE MADE "REGULAR." 
FN3 

IT IS APPARENT THAT THE FEDERAL SCHEME OF REGULATION OF FUTURES
TRADING EXTENDS TO THE WHOLE FUTURES CONTRACT - TO ITS SATISFACTION, AS
WELL AS TO ITS EXECUTION.  IT IS ALSO APPARENT THAT THE ACT PROVIDES
SOME CONTROL OVER (1) WAREHOUSE RECEIPTS WHICH ARE ACCEPTABLE IN
SATISFACTION OF SALES AND PURCHASES ON THE CONTRACT MARKET, AND (2) THE
QUALIFICATIONS OF THE WAREHOUSES WHOSE RECEIPTS WILL BE ACCEPTED FOR
SUCH DELIVERIES.  BUT THERE IS NOT CONTAINED IN THE COMMODITY EXCHANGE
ACT, AS THERE IS IN THE UNITED STATES WAREHOUSE ACT, SEE RICE V. SANTA
FE ELEVATOR CORP., SUPRA, A DECLARATION BY CONGRESS THAT THE SYSTEM
WHICH IT HAS ADOPTED FOR THE REGULATION OF TRADING ON CONTRACT MARKETS
IS EXCLUSIVE OF STATE REGULATION.  HERE CONGRESS HAS GONE NO FURTHER
THAN TO WRITE INTO THE ACT PROHIBITIONS AND CONTROLS AND TO GIVE THE
FORCE OF LAW BOTH TO THEM AND TO RULES AND REGULATIONS OF THE SECRETARY
MADE WITHIN THE SCOPE OF HIS STATUTORY AUTHORITY.  WITH EXCEPTIONS
WHICH WE WILL NOTE, STATE REGULATIONS WHICH CONFLICT WITH THE
REQUIREMENTS OF THE ACT OR WITH THE RULES AND REGULATIONS OF THE
SECRETARY WOULD BE SUPERSEDED UNDER THE FAMILIAR RULE. 

CONGRESS TREATED THE RULES AND REGULATIONS OF THE BOARD OF TRADE
DIFFERENTLY FROM THOSE OF THE SECRETARY.  IT DID NOT UNDERTAKE TO PUT
BEHIND THEM CIVIL OR CRIMINAL SANCTIONS N4.  IT MERELY FURNISHED
STANDARDS (OR AUTHORIZED THE SECRETARY TO DO SO) TO WHICH THE RULES AND
REGULATIONS OF THE BOARD WERE TO CONFORM.  AND WHILE THERE IS PROVISION
IN SOME INSTANCES FOR DISAPPROVAL OF THE BOARD'S RULES BY THE SECRETARY
OF AGRICULTURE (SEE SEC. 4C), THERE IS NO PROVISION FOR HIS APPROVAL OR
DISAPPROVAL OF THE RULES CHALLENGED IN THE ILLINOIS PROCEEDING. 
INSOFAR AS THOSE RULES ARE CONCERNED, ALL THAT THE ACT AND THE
REGULATIONS OF THE SECRETARY DO IS TO DEFINE THE AREA IN WHICH THE
BOARD MAY PROVIDE STANDARDS FOR WAREHOUSES WHOSE RECEIPTS ARE
ACCEPTABLE IN SATISFACTION OF FUTURES CONTRACTS.  BY THE TERMS OF SEC.
5A (7) THE REQUIREMENTS FIXED BY THE BOARD MUST BE "REASONABLE" AND
THEY MUST RELATE TO "LOCATION, ACCESSIBILITY, AND SUITABILITY FOR
WAREHOUSING AND DELIVERY PURPOSES."  IF THE BOARD TRANSCENDS THOSE
BOUNDS, IT VIOLATES THE ACT.  SEE SEC. 6B.  BUT WITHIN THAT AREA IT HAS
CONSIDERABLE DISCRETION.  FN5 

HENCE IT SEEMS TO US THAT NO ACTION OF THE ILLINOIS COMMISSION WITHIN
THE ZONE WHERE THE BOARD HAS FREEDOM TO ACT WOULD CONTRAVENE THE
FEDERAL SCHEME OF REGULATION.  FN6  IT WOULD BE QUITE A DIFFERENT
MATTER IF THE ILLINOIS COMMISSION ADOPTED RULES FOR THE BOARD WHICH
EITHER VIOLATED THE STANDARDS OF THE ACT OR COLLIDED WITH RULES OF THE
SECRETARY.  BUT SUCH COLLISION IS NOT NECESSARY; AND WE CANNOT ASSUME
THAT THE ILLINOIS COMMISSION WILL TAKE ANY ACTION WHICH IN ANY WAY
IMPAIRS THE FEDERAL REGULATORY SCHEME. 

THERE IS OTHER INTRINSIC EVIDENCE THAT CONGRESS DID NOT PRECLUDE
STATE REGULATION WHICH SUPPLEMENTS OR BOLSTERS THE FEDERAL SCHEME. 
DECEPTIVE PRACTICES ON CONTRACT MARKETS.  AND SEC. 4C PROVIDES THAT
"NOTHING IN THIS SECTION OR SECTION 4B SHALL BE CONSTRUED TO IMPAIR ANY
STATE LAW APPLICABLE TO ANY TRANSACTION ENUMERATED OR DESCRIBED IN SUCH
THE OCCASION FOR THE EXERCISE BY THE STATES OF THEIR HISTORIC POLICE
POWERS.  FEDERAL REGULATION IN THOSE FIELDS WOULD THEREFORE ALMOST
CERTAINLY CONFLICT WITH STATE LAWS.  THUS THE PROVISION IN SEC. 4C
SERVES THE FUNCTION OF PREVENTING SUPERSEDURE AND PRESERVING STATE
CONTROL IN TWO AREAS WHERE STATE AND FEDERAL LAW OVERLAP.  WHERE
CONGRESS USED SUCH CARE TO PRESERVE SPECIFIC STATE AUTHORITY, EVEN WHEN
IT DUPLICATED FEDERAL REGULATION, IT IS A FAIR INFERENCE NOT ONLY THAT
SUPERSEDURE WAS TO TAKE ITS NATURAL COURSE WHERE RIGHTS NOT SAVED TO
THE STATES WERE INVOLVED, FIRST IOWA HYDRO-ELECTRIC COOP.  V. FEDERAL
POWER COMMISSION, 328 U.S. 152, 175, BUT ALSO THAT NON-CONFLICTING
STATE AUTHORITY WAS LEFT UNDISTURBED.  MOREOVER THE PROVISION IN SEC.
12 OF THE ACT THAT THE SECRETARY "MAY COOPERATE WITH ANY DEPARTMENT OR
AGENCY OF THE GOVERNMENT, ANY STATE  ...  OR POLITICAL SUBDIVISION
THEREOF" SUPPORTS THE INFERENCE THAT CONGRESS DID NOT DESIGN A
REGULATORY SYSTEM WHICH EXCLUDED STATE REGULATION NOT IN CONFLICT WITH
THE FEDERAL REQUIREMENTS.  SEE TOWNSEND V. YEOMANS, 301 U.S. 441, 454;
UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, 209.    RESPONDENTS' CLAIM
OF SUPERSEDURE IS, THEREFORE, PREMATURE.  UNTIL IT IS KNOWN WHAT RULES
THE ILLINOIS COMMISSION WILL APPROVE OR ADOPT, IT CANNOT BE KNOWN
WHETHER THERE WILL BE ANY CONFLICT WITH THE FEDERAL LAW.  ANY CLAIM OF
SUPERSEDURE CAN BE PRESERVED IN THE STATE PROCEEDINGS.  AND THE
QUESTION OF SUPERSEDURE CAN BE DETERMINED IN LIGHT OF THE IMPACT OF A
SPECIFIC ORDER OF THE STATE AGENCY ON THE FEDERAL ACT OR THE
REGULATIONS OF THE SECRETARY THEREUNDER.  ONLY IF THAT PROCEDURE IS
FOLLOWED CAN THERE BE PRESERVED INTACT THE WHOLE STATE DOMAIN WHICH IN
ACTUALITY FUNCTIONS HARMONIOUSLY WITH THE FEDERAL SYSTEM.  FOR EVEN
ACTION WHICH SEEMS PREGNANT WITH POSSIBILITIES OF CONFLICT MAY, AS
CONSUMMATED, BE WHOLLY BARREN OF IT.  REVERSED.    FN1  THAT SECTION
PROVIDES:  "NO RULE OR REGULATION OF ANY BOARD OF TRADE OR GRAIN
EXCHANGE WHICH RELATES TO THE WAREHOUSING OF GRAIN IN ANY PUBLIC GRAIN
WAREHOUSE, OR WHICH RELATES TO THE CUSTODY OF GRAIN IN ANY PRIVATE
WAREHOUSE, OR THE USE OR NEGOTIATION OF CUSTODIAN'S RECEIPTS FOR SUCH
GRAIN, SHALL BE OR BECOME OPERATIVE UNTIL SUCH RULE OR REGULATION IS
APPROVED BY THE ILLINOIS COMMERCE COMMISSION, AND THE ILLINOIS COMMERCE
COMMISSION MAY ADOPT AND PROMULGATE REASONABLE RULES AND REGULATIONS
CONSISTENT WITH THE PROVISIONS OF THIS ACT FOR THE PURPOSE OF MAKING
THIS ACT EFFECTIVE." 

FN2  THE RULES AND REGULATIONS ARE TO BE FOUND IN 17 C.F.R., PART 1. 

FN3  THESE REGULATIONS PROVIDE, INTER ALIA, THAT THE WAREHOUSES MUST
BE "CONVENIENTLY APPROACHABLE BY VESSELS OF ORDINARY DRAFT," HAVE
"CUSTOMARY SHIPPING FACILITIES," AND CHARGE RATES NOT EXCEEDING A
SPECIFIED MAXIMUM (REG. 1620); MUST FILE A BOND SATISFACTORY TO THE
BOARD (REG. 1621); MUST HAVE PROPRIETORS OR MANAGERS IN "UNQUESTIONED
GOOD FINANCIAL STANDING AND CREDIT" (REG. 1624); MUST BE "CONNECTED BY
RAILROAD TRACKS WITH ONE OR MORE OF THE EASTERN RAILWAY LINES" (REG.
1625); AND MUST BE "PROVIDED WITH MODERN IMPROVEMENTS AND APPLIANCES
FOR THE CONVENIENT AND EXPEDITIOUS RECEIVING, HANDLING, AND SHIPPING OF
GRAIN IN BULK."  (REG. 1626.) 

ANY "REGULAR" WAREHOUSE MAY BE DECLARED "IRREGULAR" BY THE BOARD AT
ANY TIME FOR VIOLATION OF THE LAWS OF ILLINOIS OR THE RULES AND
REGULATIONS OF THE BOARD (REG. 1623), OR BECAUSE OF ANY IMPORTANT
CHANGE IN THE CONDITIONS OF ANY WAREHOUSE OR DISREGARD OR EVASION OF
THE REQUIREMENTS GOVERNING REGULAR WAREHOUSES (REG. 1629). 

FN4  WE THEREFORE HAVE NO ATTEMPT HERE TO ENDOW PRIVATE GROUPS WITH
LAW-MAKING FUNCTIONS.  CF. SCHECHTER CORP. V. UNITED STATES, 295 U.S.
495; UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 225-227;
PARKER V. BROWN, 317 U.S. 341, 350-352. 

FN5  IN THE PRESENT PROCEEDING THE QUESTION OF THE VALIDITY OF THE
EXISTING RULES AND REGULATIONS OF THE BOARD OF TRADE UNDER THE
COMMODITY EXCHANGE ACT IS NOT IN ISSUE, AND WE INTIMATE NO OPINION UPON
IT. 

FN6  IT IS SUGGESTED THAT THE REGULATIONS OF THE BOARD OF TRADE OR
THOSE WHICH THE ILLINOIS COMMERCE COMMISSION MAY IMPOSE ON IT ARE
AUTOMATICALLY INVALID INSOFAR AS THEY RELATE TO WAREHOUSES.  FOR IN
RICE V. SANTA FE ELEVATOR CORP., SUPRA, WE HAVE HELD THAT THE UNITED
STATES WAREHOUSE ACT EXCLUDES ALL STATE REGULATION, NO MATTER HOW
COMPLEMENTARY, OF THOSE SUBJECTS TOUCHED BY THE FEDERAL REGULATORY
SCHEME.  BUT THE SITUATION HERE IS QUITE DIFFERENT.  IN THE FIRST
PLACE, WE ARE DEALING WITH A MEASURE OF REGULATION OVER WAREHOUSE
RECEIPTS NOT FEDERAL WAREHOUSEMEN; AND THE REGULATIONS WHICH THE BOARD
OF TRADE IS AUTHORIZED TO FORMULATE DO NOT CARRY CIVIL OR CRIMINAL
SANCTIONS.  IN THE SECOND PLACE, CONGRESS BY GRANTING THE BOARD OF
TRADE FREEDOM TO REGULATE WITHIN THIS NARROW FIELD HAS BY THAT VERY ACT
NEGATIVED ANY INFERENCE THAT THE FEDERAL GOVERNMENT HAS PREEMPTED IT BY
REQUIREMENTS OF ITS OWN. 
..END :




















MCCULLOUGH V. KAMMERER CORP., 331 U.S. 96 


NO. 755.  ARGUED APRIL 8, 1947.  - DECIDED APRIL 28, 1947.  - 156 F.2D
343, REVERSED. 


IN A PATENT INFRINGEMENT SUIT, AN APPEAL MAY BE TAKEN UNDER SEC. 129
OF THE JUDICIAL CODE, AS AMENDED, 28 U.S.C. SEC. 227A, FROM AN "ORDER"
DENYING ON THE MERITS A MOTION TO SET ASIDE (BECAUSE OF UNLAWFUL USE OF
THE PATENT) AN EARLIER DECREE WHICH HELD THE PATENT VALID AND INFRINGED
AND WAS "FINAL EXCEPT FOR THE ORDERING OF AN ACCOUNTING."  PP. 98-100. 

(A)  SINCE IT LEFT NOTHING TO BE DONE EXCEPT TO CONDUCT AN
ACCOUNTING, THE ORDER FALLS SQUARELY WITHIN SEC. 129, AS AMENDED.  P.
99. 

(B)  UNDER RULE 54 OF THE FEDERAL RULES OF CIVIL PROCEDURE, THE FACT
THAT THE COURT DESIGNATED ITS ACTION AS AN "ORDER" INSTEAD OF A
"DECREE" IS IMMATERIAL.  P. 99. 

(C)  NOR IS SUCH AN ORDER RENDERED NON-APPEALABLE BECAUSE ONE APPEAL
HAD ALREADY BEEN TAKEN.  PP. 99-100. 

MCCULLOUGH V. KAMMERER CORPORATION ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

IN A PATENT INFRINGEMENT SUIT, A CIRCUIT COURT OF APPEALS DISMISSED
AN APPEAL UNDER SEC. 129 OF THE JUDICIAL CODE, AS AMENDED, 28 U.S.C.
SEC. 227A, FROM AN ORDER DENYING A MOTION TO SET ASIDE A DECREE HOLDING
THE PATENT VALID AND INFRINGED AND ORDERING AN ACCOUNTING.  156 F.2D
343.  THIS COURT GRANTED CERTIORARI.  329 U.S. 712.  REVERSED, P. 100. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN AN EARLIER PHASE OF THIS PATENT INFRINGEMENT SUIT A PATENT OWNED
BY RESPONDENT KAMMERER WAS HELD VALID AND INFRINGED BY THE PETITIONER. 
AN ACCOUNTING FOR PROFITS AND DAMAGES WAS ORDERED.  39 F.SUPP.  213. 
THE CIRCUIT COURT OF APPEALS AFFIRMED.  138 F.2D 482.  WE GRANTED
CERTIORARI TO CONSIDER WHETHER A LICENSE AGREEMENT BETWEEN RESPONDENTS
KAMMERER AND BAASH-ROSS CONTAINED RESTRICTIONS WHICH WERE CONTRARY TO
PUBLIC POLICY AND UNLAWFUL SO AS TO BAR RECOVERY AGAINST PETITIONER. 
ON ORAL ARGUMENT OF THE CASE HERE IT DEVELOPED THAT NO FINDINGS OF FACT
HAD BEEN MADE BY THE DISTRICT COURT ON THIS ISSUE, NOR HAD THE QUESTION
BEEN PRESENTED TO OR PASSED ON BY THE CIRCUIT COURT OF APPEALS.  WE
THEREFORE DISMISSED THE WRIT OF CERTIORARI.  323 U.S. 327. 

ON REMAND, THE CIRCUIT COURT OF APPEALS DID NOT DISTURB ITS ORIGINAL
AFFIRMANCE OF THE DISTRICT COURT'S HOLDING THAT THE PATENT WAS VALID
AND INFRINGED.  BUT ON MOTION OF THE PETITIONER, THE COURT AMENDED ITS
JUDGMENT OF AFFIRMANCE SO AS TO AUTHORIZE THE DISTRICT COURT TO
"ENTERTAIN A MOTION OR MOTIONS  ...  TO MODIFY OR SET ASIDE ITS ORDER
OR ORDERS FOR  ...  DAMAGES AND ACCOUNTINGS THEREOF, AND TAKE SUCH
ACTION THEREON AS IT MAY DETERMINE" CONCERNING PETITIONER'S CONTENTION
THAT RESPONDENTS' UNLAWFUL USE OF THE PATENT SHOULD BAR ALL RECOVERY
FOR INFRINGEMENT.  148 F.2D 525, 526.  THEREAFTER THE PETITIONER
PRESENTED A MOTION TO THE DISTRICT COURT IN WHICH HE ALLEGED
RESPONDENTS HAD, CONTRARY TO THE PUBLIC INTEREST, USED THE PATENT TO
RESTRAIN TRADE, FIX PRICES, AND SUPPRESS COMPETITION.  RELYING ON THESE
ALLEGATIONS, PETITIONER ASKED THE COURT TO STAY THE ACCOUNTING AND TO
RENDER A FINAL JUDGMENT DISMISSING THE COMPLAINT ON THE GROUND THAT
RESPONDENTS HAD ILLEGALLY MISUSED THE PATENT.  WITHOUT INTRODUCING
FURTHER EVIDENCE BOTH PARTIES SUBMITTED THE MOTION TO THE DISTRICT
COURT ON FACTS ALREADY IN THE RECORD.  AFTER AN ARGUMENT, THE COURT
MADE EXTENSIVE FINDINGS OF FACT AGAINST PETITIONER, CONCLUDED THAT HIS
DEFENSE HAD NOT BEEN ESTABLISHED, AND ENTERED AN ORDER DENYING HIS
MOTION TO STAY THE ACCOUNTING AND TO ENTER A FINAL JUDGMENT DISMISSING
THE COMPLAINT.  THE CIRCUIT COURT OF APPEALS DISMISSED PETITIONER'S
APPEAL FROM THE DISTRICT COURT'S DISPOSITION OF HIS MOTION ON THE
GROUND THAT THE DISTRICT COURT'S ORDER WAS "NOT A DECREE, FINAL OR
OTHERWISE."  156 F.2D 343, 345.  WE HOLD THAT THE APPEAL WAS
ERRONEOUSLY DISMISSED. 

THE ACT OF FEBRUARY 28, 1927, 44 STAT. 1261, 28 U.S.C. SEC. 227A,
PROVIDES THAT "WHEN IN ANY SUIT IN EQUITY FOR THE INFRINGEMENT OF
LETTERS PATENT FOR INVENTIONS, A DECREE IS RENDERED WHICH IS FINAL
EXCEPT FOR THE ORDERING OF AN ACCOUNTING, AN APPEAL MAY BE TAKEN FROM
SUCH DECREE TO THE CIRCUIT COURT OF APPEALS  ...  "  THE OBJECT OF THIS
1927 AMENDMENT TO SEC. 129 OF THE JUDICIAL CODE WAS TO MAKE SURE THAT
PARTIES COULD TAKE APPEALS IN PATENT EQUITY INFRINGEMENT SUITS WITHOUT
BEING COMPELLED TO AWAIT A FINAL ACCOUNTING.  THE REPORTS OF THE
CONGRESSIONAL COMMITTEES ON THE MEASURE CALLED ATTENTION TO THE LARGE
EXPENSES FREQUENTLY INVOLVED IN SUCH ACCOUNTINGS AND THE LOSSES
INCURRED WHERE RECOVERIES WERE ULTIMATELY DENIED BY REVERSAL OF DECREES
ON THE MERITS.  FN1 AND SEE BRICK V. A.I. NAMM & SONS, INC., 21 F.2D
179.  IT WAS FOR THIS REASON THAT CONGRESS AUTHORIZED DEPARTURE IN THIS
TYPE OF CASE FROM THE USUAL PRACTICE UNDER WHICH APPEALS ARE NOT
ALLOWED UNTIL RENDITION OF A FINAL JUDGMENT WHICH DISPOSES OF ALL
PHASES OF A CONTROVERSY.  SEE CATLIN V. UNITED STATES, 324 U.S. 229,
233. 

NOR DO THE UNUSUAL CIRCUMSTANCES UNDER WHICH THIS ORDER WAS RENDERED
MAKE IT ANY THE LESS APPEALABLE.  WHETHER OR NOT THE DISTRICT COURT
WOULD HAVE HAD AUTHORITY ON ITS OWN MOTION TO REOPEN THE PROCEEDINGS TO
CONSIDER THE ALLEGED MISUSE OF THE PATENT, SEE MARCONI WIRELESS
TELEGRAPH CO. V. UNITED STATES, 320 U.S. 1, 47-48, IT WAS PROPER FOR IT
TO DO SO AFTER THE CIRCUIT COURT OF APPEALS AMENDED ITS JUDGMENT AS IT
DID.  AFTER REOPENING THE CASE, THE DISTRICT COURT GAVE FULL
CONSIDERATION TO THE QUESTION PRESENTED BY THE MOTION AND DECIDED IT
UPON THE MERITS.  SEE BOWMAN V. LOPERENA(, 311 U.S. 262.  THERE WAS
THEN NOTHING THAT REMAINED TO BE DONE EXCEPT TO CONDUCT AN ACCOUNTING. 
THEREFORE, THE RESULTING ORDER FALLS SQUARELY WITHIN SEC. 129 AS
AMENDED.  THE FACT THAT THE COURT DESIGNATED ITS ACTION AS AN "ORDER"
RATHER THAN A "DECREE" IS NOT OF CRUCIAL SIGNIFICANCE.  SEE RULE 54,
RULES OF CIVIL PROCEDURE.  FN2  FOR THOUGH CALLED AN "ORDER," ITS
BINDING EFFECT IN DISPOSING OF THE QUESTION BEFORE IT IS THE SAME AS
THOUGH IT HAD BEEN ENTITLED A "DECREE."  NOR IS THE ORDER RENDERED NON
APPEALABLE BECAUSE ONE APPEAL HAD ALREADY BEEN TAKEN, ANY MORE THAN IT
WOULD HAVE BEEN HAD THE FIRST DECREE BEEN REVERSED IN TOTO AND THIS
ORDER ENTERED AFTER THE REVERSAL.  SINCE THE ORDER DENYING PETITIONER'S
MOTION FOR A JUDGMENT OF DISMISSAL OF RESPONDENTS' CLAIM IS, WITHIN THE
MEANING OF SEC. 129, "FINAL EXCEPT FOR THE ORDERING OF AN ACCOUNTING,"
IT IS APPEALABLE.  REVERSED. 

FN1  THE HOUSE COMMITTEE ON PATENTS EXPRESSED THE BELIEF THAT THE
LEGISLATION "IS NEEDED TO PREVENT A GREAT BURDEN OF EXPENSE TO
LITIGANTS IN ACTIONS TO DETERMINE THE VALIDITY OF PATENTS, WHERE AN
ACCOUNTING IS INVOLVED.  UNDER PRESENT PROCEDURE APPEALS MAY BE TAKEN
FROM THE INTERLOCUTORY DECREE UPHOLDING THE PATENT BUT NOT UNTIL A FULL
ACCOUNTING HAS BEEN MADE TO THE COURT.  UNDER THIS BILL SUCH APPEAL CAN
BE TAKEN FROM SUCH INTERLOCUTORY DECREE  ...  SO AS TO OBVIATE THE COST
OF AN ACCOUNTING IN THE EVENT THE CASE IS REVERSED ON APPEAL."  H.R.
REP. NO. 1890, 69TH CONG., 2D SESS. 1(1927). 

THE SENATE COMMITTEE EMPHASIZED THE SAME EXPENSE INCIDENT TO
CONDUCTING AN ACCOUNTING BEFORE THE MERITS HAD BEEN DETERMINED ON
APPEAL.  IT APPARENTLY WENT ON THE ASSUMPTION THAT SEC. 129 ALREADY
AUTHORIZED APPEALS PRIOR TO ACCOUNTING FROM AN INJUNCTION AGAINST
INFRINGEMENT.  IT WANTED TO PERMIT AN APPEAL PRIOR TO ACCOUNTING
WHETHER THERE WAS AN EFFECTIVE INJUNCTION OUTSTANDING OR NOT, EVEN
THOUGH A PATENT HAD EXPIRED MAKING INAPPROPRIATE AN INJUNCTION AGAINST
ITS CONTINUED VIOLATION.  SEN. REP. NO. 1319, 69TH CONG., 2D SESS.
1(1927). 

THIS CASE PRESENTS THE PRECISE SITUATION WHICH THE SENATE COMMITTEE
THOUGHT THE ACT WAS DESIGNED TO AVOID IN THAT IT HAPPENS HERE THAT THE
PATENT HAS EXPIRED.  BUT BOTH REPORTS INDICATE THAT THE PURPOSE OF THE
ACT WAS TO PERMIT APPEALS WHENEVER EVERYTHING BUT AN ACCOUNTING HAD
BEEN ACCOMPLISHED. 

FN2  "'JUDGMENT' AS USED IN THESE RULES INCLUDES A DECREE AND ANY
ORDER FROM WHICH AN APPEAL LIES."  RULE 54, F.R.C.P.
..END :




















FLEMING V. RHODES, 331 U.S. 100 


NO. 682.  ARGUED APRIL 7, 1947.  - DECIDED APRIL 28, 1947.  - REVERSED. 


1.  THE ACT OF AUGUST 24, 1937, 50 STAT. 751, CONFERS POWER UPON THIS
COURT TO REVIEW, ON DIRECT APPEAL, A RULING AGAINST THE
CONSTITUTIONALITY OF AN ACT OF CONGRESS WHICH IS MADE IN THE
APPLICATION OF A STATUTE TO A PARTICULAR CIRCUMSTANCE, EVEN THOUGH THE
STATUTE IS NOT CHALLENGED AS A WHOLE.  PP. 102-104. 

2.  UNDER SEC. 205(A) OF THE EMERGENCY PRICE CONTROL ACT, AS AMENDED
BY THE PRICE CONTROL EXTENSION ACT OF JULY 25, 1946, INJUNCTIONS TO
PREVENT THE FUTURE EVICTION OF TENANTS IN DEFENSE AREAS MAY BE GRANTED
BY A FEDERAL DISTRICT COURT AT THE INSTANCE OF THE PRICE ADMINISTRATOR
NOTWITHSTANDING THE FACT THAT, BETWEEN THE EXPIRATION OF THE PRICE
CONTROL ACT ON JUNE 30, 1946, AND THE ENACTMENT OF THE PRICE CONTROL
EXTENSION ACT ON JULY 25, 1946, JUDGMENTS FOR RESTITUTION OF THE LEASED
PROPERTY HAD BEEN OBTAINED BY THE LANDLORDS IN STATE COURTS.  PP. 104
107. 

3.  FEDERAL REGULATION OF FUTURE ACTION BASED UPON RIGHTS PREVIOUSLY
ACQUIRED BY THE PERSON REGULATED IS NOT PROHIBITED BY THE CONSTITUTION,
EVEN THOUGH SUCH RIGHTS WERE ACQUIRED BY JUDGMENTS.  P. 107. 

4.  IN A SUIT BY THE PRICE ADMINISTRATOR UNDER SEC. 205(A) OF THE
EMERGENCY PRICE CONTROL ACT TO PREVENT THE EVICTION OF TENANTS IN A
DEFENSE AREA, SEC. 265 OF THE JUDICIAL CODE DOES NOT BAR AN INJUNCTION
AGAINST STATE OFFICIALS TO PREVENT THE EXECUTION OF STATE JUDGMENTS OF
EVICTION.  PP. 107-108. 

FLEMING, TEMPORARY CONTROLS ADMINISTRATOR, V. RHODES, SHERIFF, ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF TEXAS. 

IN A SUIT BROUGHT BY THE PRICE ADMINISTRATOR UNDER SEC. 205(A) OF THE
EMERGENCY PRICE CONTROL ACT TO PREVENT EXECUTION OF JUDGMENTS OF
EVICTION RENDERED BY STATE COURTS AGAINST TENANTS IN A DEFENSE AREA, A
FEDERAL DISTRICT COURT DENIED A PRELIMINARY INJUNCTION, ON THE GROUND
THAT THE PROVISION OF SEC. 18 OF THE PRICE CONTROL EXTENSION ACT OF
JULY 25, 1946, MAKING THE ACT EFFECTIVE RETROACTIVELY ON JUNE 30, 1946,
IS UNCONSTITUTIONAL.  ON DIRECT APPEAL, THIS COURT ORDERED SUBSTITUTION
OF THE TEMPORARY CONTROLS ADMINISTRATOR FOR THE PRICE ADMINISTRATOR
(329 U.S. 688) AND REVERSED THE JUDGMENT, P. 108. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL IS FROM AN INTERLOCUTORY ORDER OF THE DISTRICT COURT OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS DENYING
PRELIMINARY INJUNCTIONS.  APPELLANT'S PREDECESSOR SUED CERTAIN LANDLORD
APPELLEES AND THE SHERIFF AND A CONSTABLE OF TARRANT COUNTY, TEXAS, IN
THAT UNITED STATES DISTRICT COURT FOR AN INJUNCTION TO STOP EVICTION OF
TENANTS UNDER STATE JUDGMENTS THAT WERE RECOVERED BY THE LANDLORDS IN
SUITS FOR RESTITUTION OF LEASED PROPERTY.  FN1  THE STATE SUITS WERE
FILED BY THE LANDLORDS WITHOUT THE CERTIFICATES REQUIRED BY THE RENT
REGULATION FOR HOUSING TO MAINTAIN SUCH ACTIONS.  8 F.R. 7322; 10 F.R.
11666; 11 F.R. 5824, 8106.  THE STATE JUDGMENTS WERE ENTERED AFTER JUNE
30, 1946, THE TERMINATION DATE OF THE EMERGENCY PRICE CONTROL ACT, AND
BEFORE JULY 25, 1946, THE DATE OF THE APPROVAL BY THE PRESIDENT OF THE
PRICE CONTROL EXTENSION ACT.  AS THERE WAS NO FEDERAL PRICE CONTROL
STATUTE DURING THIS PERIOD, THESE JUDGMENTS WILL BE TREATED AS VALID
WHEN GRANTED. 

THE DECISION OF THE DISTRICT COURT, DENYING THE MOTION AS TO THE
LANDLORDS AND DIRECTING THE ENTRY OF THE ORDER, WAS BASED ON THE
UNCONSTITUTIONALITY, AS APPLIED TO THESE STATE JUDGMENTS, OF THAT
PORTION OF SEC. 18 OF THE PRICE CONTROL EXTENSION ACT OF JULY 25, 1946,
THAT DECLARED, "THE PROVISIONS OF THIS ACT SHALL TAKE EFFECT AS OF JUNE
30, 1946,  ...  "  FN2  THIS PROVISION THE COURT THOUGHT WAS
UNCONSTITUTIONAL (1) BECAUSE THE WORDS AFFECTED THE STATE JUDGMENTS
RETROACTIVELY BY BRINGING THEM UNDER THE EXTENSION ACT  FN3  AND (2)
BECAUSE THE VESTED RIGHTS, CREATED BY THE PRIOR JUDGMENTS IN THE
LANDLORDS TO OBTAIN RESTITUTION OF THEIR LEASED PROPERTIES, COULD NOT
BE DESTROYED BY SUBSEQUENT LEGISLATION.  APPARENTLY IT WAS FELT THAT
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT FORBADE SUCH REGULATION
OF THE INCIDENTS OF JUDGMENTS.  THE QUESTION IS RAISED AS TO WHETHER
THE ACT OF AUGUST 24, 1937, 50 STAT. 751, CONFERS POWER UPON THIS COURT
TO REVIEW, ON DIRECT APPEAL, A RULING AGAINST THE CONSTITUTIONALITY OF
AN ACT OF CONGRESS WHEN THE RULING OF UNCONSTITUTIONALITY IS MADE IN
THE APPLICATION OF THE STATUTE TO A PARTICULAR CIRCUMSTANCE, AS IN THIS
APPEAL, RATHER THAN UPON THE CHALLENGED STATUTE AS A WHOLE.  A READING
OF THE FIRST THREE SECTIONS OF THE ACT CONVINCES US THAT CONGRESS
GRANTED LITIGANTS IN COURTS OF THE UNITED STATES A DIRECT APPEAL TO
THIS COURT FROM DECISIONS AGAINST THE CONSTITUTIONALITY OF ANY ACT OF
CONGRESS AS APPLIED IN THE PENDING LITIGATION. 

THE FIRST SECTION ONLY AUTHORIZES THE INTERVENTION OF THE UNITED
STATES IN PRIVATE LITIGATION, "WHENEVER THE CONSTITUTIONALITY OF ANY
ACT OF CONGRESS AFFECTING THE PUBLIC INTEREST IS DRAWN IN QUESTION  ...
" FN4  IT HAS NOTHING TO DO WITH APPEALS.  THE SECOND SECTION ALLOWS
AN APPEAL TO THIS COURT FROM A FINAL OR INTERLOCUTORY ORDER ONLY WHEN
THE UNITED STATES IS A PARTY, THROUGH THE PRECEDING SEC. 1 OR
ORIGINALLY, AND THE DECISION IS AGAINST THE CONSTITUTIONALITY OF THE
FEDERAL LAW.  IT PROVIDES FOR EXPEDITION IN OUR DETERMINATION OF THE
APPEAL.  SECTION THREE RELATES TO THE ALLOWANCE OR REFUSAL OF
INJUNCTIONS STAYING ACTS OF CONGRESS IN WHOLE OR IN PART ON THE GROUND
OF REPUGNANCY TO THE CONSTITUTION, AND REQUIRES A THREE-JUDGE COURT,
EXPEDITION IN DETERMINATION AND NOTICE TO THE UNITED STATES.  THE
SPECIFIC PROVISION FOR PROMPT REVIEW OF JUDGMENTS GRANTING OR DENYING
"IN WHOLE OR IN PART" SUCH AN INJUNCTION IS LIMITED TO APPLICATIONS FOR
STAYS OF ACTS OF CONGRESS BECAUSE OF THEIR UNCONSTITUTIONALITY.  THUS
THE CONSTITUTIONALITY OF FEDERAL ACTS COMES TO US BY DIRECT APPEAL,
UNDER THE ACT OF AUGUST 24, 1937, ONLY WHEN THE UNITED STATES IS A
PARTY TO THE LITIGATION BELOW OR AN INJUNCTION IS SOUGHT.  THIS ENABLES
THE UNITED STATES TO EXERCISE LARGE DISCRETION, BY ITS DETERMINATION AS
TO WHETHER OR NOT TO INTERVENE, AS TO WHAT CASES ARE REVIEWABLE
DIRECTLY IN THIS COURT.  FN5  THE CONGRESS INTENDED PROMPT REVIEW OF
THE CONSTITUTIONALITY OF FEDERAL ACTS.  FN6  SINCE SEC. 1 ALLOWS
INTERVENTION WHEN THE CONSTITUTIONALITY OF AN ACT IS "DRAWN IN
QUESTION" AND SEC. 2 ALLOWS APPEAL AFTER INTERVENTION, IT FOLLOWS THAT
THERE IS AN APPEAL FROM AN ORDER THAT INVALIDATES, AS UNCONSTITUTIONAL,
A STATUTE AS APPLIED.  TO LIMIT THE GENERALITY OF THE LANGUAGE OF SEC.
2 OF THE ACT OF AUGUST 24, 1937, TO CASES THAT INVOLVED ONLY THE
CONSTITUTIONALITY AS A WHOLE OF THE CHALLENGED STATUTES MIGHT SERIOUSLY
IMPAIR PROMPT DETERMINATIONS OF MATTERS OF GREAT PUBLIC INTEREST. 
LITIGANTS MAY CHALLENGE THE CONSTITUTIONALITY OF A STATUTE ONLY IN SO
FAR AS IT AFFECTS THEM.  FN7  WE HOLD THAT JURISDICTION OF THE APPEAL
FROM THE CHALLENGED ORDER IS CONFERRED UPON THIS COURT BY 28 U.S.C.
SEC. 349A. 

THE COURT WAS ALSO OF THE VIEW THAT SEC. 265 OF THE JUDICIAL CODE
BARRED ANY INJUNCTION AGAINST THE STATE OFFICIALS. 

THE APPELLANT SOUGHT INJUNCTIONS AGAINST FUTURE EVICTION OF THESE
TENANTS THROUGH WRITS OF RESTITUTION OR OTHER PROCESS BY WHICH EVICTION
MIGHT BE CONSUMMATED.  SECTIONS 2(D), 4(A) AND 205(A) OF THE EMERGENCY
PRICE CONTROL ACT OF 1942, AS AMENDED, AND RENT REGULATION SEC. 6(A),
SET OUT BELOW.  FN8  SUCH AN INJUNCTION IS IN ACCORD WITH THE
ADMINISTRATIVE INTERPRETATIONS OF THE RENT REGULATION.  FN9  THE
PROPERTIES INVOLVED IN THIS LITIGATION WERE DEFENSE-AREA HOUSING
ACCOMMODATIONS.  THERE IS NO SUGGESTION THAT THE HERETOFORE REFERRED TO
FOR HOUSING DO NOT AUTHORIZE THESE LEGAL PROCEEDINGS.  THE
CONSTITUTIONALITY OF THE PRICE CONTROL ACTS, GENERALLY CONSIDERED, IS
UNQUESTIONED.  BOWLES V. WILLINGHAM, 321 U.S. 503.  THE SOLE INQUIRY
FOR US, AT THIS POINT, IS WHETHER IT WAS ERRONEOUS FOR THE DISTRICT
COURT TO REFUSE TO ALLOW THE TEMPORARY INJUNCTION, BECAUSE TO DO SO
WOULD INVADE THE CONSTITUTIONAL RIGHT OF THE LANDLORD APPELLEES TO
RETAIN THE FRUITS OF THEIR "VESTED RIGHTS" IN THE VALID JUDGMENTS. 

AS THE APPELLANT IS UNDERTAKING TO ENJOIN FUTURE EVICTION OF THE
TENANTS OR LESSEES, OUR CONSIDERATION IS NOT AFFECTED BY THE PROVISO OF
SEC. 18 OF THE EXTENSION ACT, SET OUT IN THE MARGIN.  FN10  THE
RETROACTIVE PROVISION OF SEC. 18, QUOTED ABOVE AT NOTE 2, IS INAPPOSITE
FOR THE SAME REASON.  IT IS IMMATERIAL WHETHER THE STATE JUDGMENTS WERE
OBTAINED BEFORE OR AFTER THE EFFECTIVE DATE OF THE EXTENSION ACT.  THE
EFFORT OF THE APPELLANT IS TO ENJOIN FUTURE PROCEEDINGS FOR EVICTION
AFTER THE ACQUISITION BY THE LANDLORD APPELLEES THROUGH VALID JUDGMENTS
OF WHAT THE DISTRICT COURT CHARACTERIZED AS "VESTED RIGHTS."  FEDERAL
REGULATION OF FUTURE ACTION BASED UPON RIGHTS PREVIOUSLY ACQUIRED BY
THE PERSON REGULATED IS NOT PROHIBITED BY THE CONSTITUTION.  SO LONG AS
THE CONSTITUTION AUTHORIZES THE SUBSEQUENTLY ENACTED LEGISLATION, THE
FACT THAT ITS PROVISIONS LIMIT OR INTERFERE WITH PREVIOUSLY ACQUIRED
RIGHTS DOES NOT CONDEMN IT.  IMMUNITY FROM FEDERAL REGULATION IS NOT
GAINED THROUGH FOREHANDED CONTRACTS.  WERE IT OTHERWISE THE PARAMOUNT
POWERS OF CONGRESS COULD BE NULLIFIED BY "PROPHETIC DISCERNMENT."  N11
THE RIGHTS ACQUIRED BY JUDGMENTS HAVE NO DIFFERENT STANDING.  FN12  THE
PROTECTION OF HOUSING ACCOMMODATIONS IN DEFENSE-AREAS THROUGH THE PRICE
CONTROL ACTS MAY BE ACCOMPLISHED BY THE APPELLANT NOTWITHSTANDING THESE
PRIOR JUDGMENTS.  THE PRELIMINARY INJUNCTIONS SHOULD HAVE BEEN
GRANTED. 

ONLY A WORD NEED BE SAID AS TO THE CONTENTION THAT SEC. 265 OF THE
JUDICIAL CODE FORBIDS AN INJUNCTION AGAINST THE EXECUTION OF STATE
JUDGMENTS BY STATE OFFICERS.  FN13  A CONTENTION WAS MADE BEFORE THIS
COURT IN SIMILAR CASES LAST TERM THAT SEC. 265 FORBADE A FEDERAL
INJUNCTION TO STAY SUCH PROCEEDINGS IN ANY COURT OF A STATE.  THE
ARGUMENT WAS NOT ACCEPTED.  WE THOUGHT THAT SEC. 205(A) OF THE
EMERGENCY PRICE CONTROL ACT OF 1942 CREATED AN EXCEPTION TO SEC. 265. 
FN14  NO SPECIFIC MENTION WAS MADE IN THESE OPINIONS AS TO WHETHER
STATE OFFICERS WHO WERE PARTIES IN THE CASE COULD BE ENJOINED. 
HOWEVER, WE DO NOT SEE ANY GROUND, UNDER SEC. 265 OF THE JUDICIAL CODE,
TO DIFFERENTIATE AS TO STAYS AGAINST A SHERIFF OR A CONSTABLE OR STAYS
AGAINST THE PARTIES TO THE LITIGATION.  WE THINK THE DISTRICT COURT HAD
POWER TO STAY THE SHERIFF AND CONSTABLE.  JUDGMENT REVERSED. 

FN1  JURISDICTION OF SUITS FOR SUCH INJUNCTIONS IS CONFERRED UPON THE
DISTRICT COURTS OF THE UNITED STATES BY SEC. 205 OF THE EMERGENCY PRICE
CONTROL ACT OF 1942, 56 STAT. 23, 58 STAT. 632, 59 STAT. 306, AND THE
PRICE CONTROL EXTENSION ACT OF JULY 25, 1946, 60 STAT. 664. 

FN2  PRICE CONTROL EXTENSION ACT OF JULY 25, 1946, SUPRA. 

FN3  AS THIS OPINION RELIES UPON THE VALIDITY UNDER THE PRICE CONTROL
ACTS OF THE PROHIBITION OF FUTURE EVICTION OF TENANTS IN SEC. 6 OF THE
RENT REGULATION FOR HOUSING, 8 F.R. 7322; 10 F.R. 11666; 11 F.R. 5824,
8106, IT IS UNNECESSARY TO CONSIDER FURTHER WHETHER THE MERE INCLUSION
OF THESE PAST JUDGMENTS WITHIN THE REACH OF THE PRICE CONTROL
LEGISLATION, BY ADVANCING THE EFFECTIVE DATE OF THE ACT, IS
CONSTITUTIONAL.  COMPARE BLODGETT V. HOLDEN(, 275 U.S. 142, 146, AND
UNTERMYER V. ANDERSON, 276 U.S. 440, 445, WITH UNITED STATES V. HUDSON,
299 U.S. 498. 

FN4  THE LAST THREE WORDS WERE CONSTRUED IN DAHNKE-WALKER CO. V.
BONDURANT, 257 U.S. 282, 288, TO ALLOW APPEALS UNDER JUDICIAL CODE SEC.
237 TO THIS COURT FROM FINAL JUDGMENTS OF STATE COURTS OF LAST RESORT
UPHOLDING THE VALIDITY OF STATE STATUTES AGAINST A CHALLENGE TO THEIR
APPLICATION TO PARTICULAR CIRCUMSTANCES BECAUSE OF THEIR REPUGNANCE TO
FEDERAL LAW.  THIS WAS A SETTLED CONSTRUCTION FOR THE WORDS.  SEE
KEPNER V. UNITED STATES, 195 U.S. 100, 124. 

FN5  GARMENT WORKERS V. DONNELLY CO., 304 U.S. 243, 249-50. 

FN6  H. REP. NO. 212, 75TH CONG., 1ST SESS., P. 2: 

"THE IMPORTANCE TO THE NATION OF PROMPT DETERMINATION BY THE COURT OF
LAST RESORT OF DISPUTED QUESTIONS OF THE CONSTITUTIONALITY OF ACTS OF
THE CONGRESS REQUIRES NO COMMENT." 

S. REP. NO. 963, 75TH CONG., 1ST SESS., PP. 3-4: 

"THE UNITED STATES IS NOT EXCLUDED BY THE PRINCIPLE THUS STATED, FROM
DRAWING THE JUDICIAL POWER TO ITS PROPER ASSISTANCE EITHER AS AN
ORIGINAL PARTY, OR AS AN INTERVENOR, WHEN, IN PRIVATE LITIGATION,
DECISION OF THE CONSTITUTIONAL QUESTION MAY AFFECT THE PUBLIC AT LARGE,
MAY BE IN RESPECT OF MATTERS WHICH BY THE CONSTITUTION ARE ENTRUSTED TO
THE CARE OF THE NATION, AND CONCERNING WHICH THE NATION OWES A DUTY TO
ALL THE CITIZENS OF SECURING TO THEM THEIR COMMON RIGHTS." 

FN7  BLACKMER V. UNITED STATES, 284 U.S. 421, 442; VIRGINIAN R. CO.
V. FEDERATION, 300 U.S. 515, 558; CARMICHAEL V. SOUTHERN COAL CO., 301
U.S. 495, 513. 

FN8  EMERGENCY PRICE CONTROL ACT OF 1942, 56 STAT. 23, 58 STAT. 632,
59 STAT. 306: 

ACTION IS NECESSARY OR PROPER IN ORDER TO EFFECTUATE THE PURPOSES OF
THIS ACT, HE MAY,  ...  REGULATE OR PROHIBIT  ...  RENTING OR LEASING
PRACTICES (INCLUDING PRACTICES RELATING TO RECOVERY OF THE POSSESSION)
IN CONNECTION WITH ANY DEFENSE-AREA HOUSING ACCOMMODATIONS, WHICH IN
HIS JUDGMENT ARE EQUIVALENT TO OR ARE LIKELY TO RESULT IN  ...  RENT
INCREASES,  ...  INCONSISTENT WITH THE PURPOSES OF THIS ACT." 

AGREEMENT, LEASE, OR OTHER OBLIGATION HERETOFORE OR HEREAFTER ENTERED
INTO, FOR ANY PERSON TO  ...  DO OR OMIT TO DO ANY ACT, IN VIOLATION OF
ANY REGULATION OR ORDER UNDER SECTION 2,  ...  OR TO OFFER, SOLICIT,
ATTEMPT, OR AGREE TO DO ANY OF THE FOREGOING." 

PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY ACTS OR PRACTICES WHICH
CONSTITUTE OR WILL CONSTITUTE A VIOLATION OF ANY PROVISION OF SECTION 4
OF THIS ACT, HE MAY MAKE APPLICATION TO THE APPROPRIATE COURT FOR AN
ORDER ENJOINING SUCH ACTS OR PRACTICES, OR FOR AN ORDER ENFORCING
COMPLIANCE WITH SUCH PROVISION, AND UPON A SHOWING BY THE ADMINISTRATOR
THAT SUCH PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY SUCH ACTS OR
PRACTICES A PERMANENT OR TEMPORARY INJUNCTION, RESTRAINING ORDER, OR
OTHER ORDER SHALL BE GRANTED WITHOUT BOND." 

RENT REGULATION FOR HOUSING, 8 F.R. 7322, 10 F.R. 11666; 11 F.R.
5824, 8106: 

TENANT.  SO LONG AS THE TENANT CONTINUES TO PAY THE RENT TO WHICH THE
LANDLORD IS ENTITLED, NO TENANT SHALL BE REMOVED FROM ANY HOUSING
ACCOMMODATIONS, BY ACTION TO EVICT OR TO RECOVER POSSESSION, BY
EXCLUSION FROM POSSESSION, OR OTHERWISE, NOR SHALL ANY PERSON ATTEMPT
SUCH REMOVAL OR EXCLUSION FROM POSSESSION, NOTWITHSTANDING THAT SUCH
TENANT HAS NO LEASE OR THAT HIS LEASE OR OTHER RENTAL AGREEMENT HAS
EXPIRED OR OTHERWISE TERMINATED, AND REGARDLESS OF ANY CONTRACT, LEASE,
AGREEMENT OR OBLIGATION HERETOFORE OR HEREAFTER ENTERED INTO WHICH
PROVIDES FOR ENTRY OF JUDGMENT UPON THE TENANT'S CONFESSION FOR BREACH
OF THE COVENANTS THEREOF OR WHICH OTHERWISE PROVIDES CONTRARY HERETO,
... "    FN9  PIKE & FISCHER, OPA SERVICE, RENT, INTERPRETATIONS OF THE
RENT REGULATION FOR HOUSING, SEC. 6-VI, ISSUED JULY 25, 1946: 

"INTERPRETATION 6-VI.  EVICTIONS PENDING ON JULY 25, 1946. 

"THE EMERGENCY PRICE CONTROL ACT OF 1942, AS AMENDED, ON JULY 25,
1946, WAS EXTENDED BY STRIKING OUT 'JUNE 30, 1946' AND SUBSTITUTING
'JUNE 30, 1947,' AS THE EXPIRATION DATE OF THE ACT.  SECTION 18
PROVIDES THAT THE PROVISIONS OF THE ACT SHALL TAKE EFFECT AS OF JUNE
30, 1946.  IN THIS SECTION A SAVINGS CLAUSE WAS INSERTED FOR THE
PROTECTION OF PERSONS WHO HAD ACTED CONTRARY TO THE REGULATION DURING
THE INTERIM PERIOD BETWEEN JUNE 30, 1946, AND JULY 25, 1946.  THIS
SAVINGS CLAUSE PROVIDES THAT NO ACT OR TRANSACTION OCCURRING BETWEEN
SAID DATES SHALL BE DEEMED A VIOLATION.  AS A RESULT ANY EVICTION WHICH
OCCURRED DURING THE INTERIM PERIOD WAS NOT A VIOLATION OF THE ACT OR
REGULATION.  BY REASON OF THIS THE TENANT WHO HAS BEEN IN FACT EVICTED
DURING THIS INTERIM PERIOD RECEIVES NO PROTECTION.  IF, HOWEVER, HE IS
IN POSSESSION ON JULY 25, 1946, HE IS ENTITLED TO THE PROTECTION OF THE
EVICTION PROVISIONS OF THE REGULATION AND IT IS A VIOLATION OF THE
REGULATION FOR THE LANDLORD ON OR AFTER THAT DATE TO ATTEMPT TO EVICT
BY COURT PROCESS OR OTHERWISE EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 6 OF THE REGULATION." 

FN10  "PROVIDED FURTHER, THAT NO ACT OR TRANSACTION, OR OMISSION OR
FAILURE TO ACT, OCCURRING SUBSEQUENT TO JUNE 30, 1946, AND PRIOR TO THE
DATE OF ENACTMENT OF THIS ACT SHALL BE DEEMED TO BE A VIOLATION OF THE
EMERGENCY PRICE CONTROL ACT OF 1942, AS AMENDED, OR THE STABILIZATION
ACT OF 1942, AS AMENDED, OR OF ANY REGULATION, ORDER, PRICE SCHEDULE,
OR REQUIREMENT UNDER EITHER OF SUCH ACTS:  ...  " 

FN11  SPROLES V. BINFORD, 286 U.S. 374, 391; LOUISVILLE & NASHVILLE
R. CO. V. MOTTLEY, 219 U.S. 467; PHILADELPHIA, B. & W.R. CO. V.
SCHUBERT, 224 U.S. 603; CALHOUN V. MASSIE, 253 U.S. 170; NORMAN V.
BALTIMORE & OHIO R. CO., 294 U.S. 240, 303-11; GUARANTY TRUST CO. V.
HENWOOD, 307 U.S. 247, 259. 

FN12  WRIGHT V. UNION CENTRAL INS. CO., 304 U.S. 502, 509; PARAMINO
LUMBER CO. V. MARSHALL, 309 U.S. 370. 

FN13  JUDICIAL CODE SEC. 265: 

"THE WRIT OF INJUNCTION SHALL NOT BE GRANTED BY ANY COURT OF THE
UNITED STATES TO STAY PROCEEDINGS IN ANY COURT OF A STATE, EXCEPT IN
CASES WHERE SUCH INJUNCTION MAY BE AUTHORIZED BY ANY LAW RELATING TO
PROCEEDINGS IN BANKRUPTCY." 

FN14  PORTER V. LEE, 328 U.S. 246; PORTER V. DICKEN, 328 U.S. 252;
BOWLES V. WILLINGHAM, 321 U.S. 503, 510. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

IN CONSIDERING THE SCOPE OF OUR APPELLATE JURISDICTION, GREAT WEIGHT
SHOULD BE GIVEN TO THE STRONG POLICY OF THE CONGRESS, EVER SINCE THE
JUDICIARY ACT OF 1891, TO KEEP THE DOCKET OF THIS COURT WITHIN
MANAGEABLE PROPORTIONS FOR THE WISE DISPOSITION OF CAUSES BY THE
ULTIMATE JUDICIAL TRIBUNAL.  THAT CONSIDERATION APPLIES ALSO TO THE FEW
ACTS, PASSED SINCE THE CREATION OF THE CIRCUIT COURTS OF APPEALS, WHICH
ALLOW CASES TO COME HERE DIRECTLY FROM THE DISTRICT COURT WHERE ISSUES
OF GREAT PUBLIC IMPORTANCE, SUCH AS THE CONSTITUTIONALITY OF
LEGISLATION, ARE AT STAKE. 

IN DAHNKE-WALKER CO. V. BONDURANT, 257 U.S. 282, THIS COURT GAVE AN
EXPANSIVE CONTENT TO REVIEW, AS A MATTER OF RIGHT, OF STATE COURT
JUDGMENTS WHERE IS DRAWN IN QUESTION "THE VALIDITY OF A STATUTE."  OUR
JURISDICTION WAS HELD TO COVER REVIEW OF A FINDING OF
UNCONSTITUTIONALITY IN THE APPLICATION OF A STATUTE TO A PARTICULAR
SITUATION, THOUGH THE STATUTE IS OTHERWISE LEFT IN FULL FORCE AND
EFFECT.  WHILE, FOR THE REASONS SET FORTH IN THE DISSENT OF MR. JUSTICE
BRANDEIS, I HAVE NEVER BEEN RECONCILED TO THE SOUNDNESS OF THAT
DECISION, I ACCEPT IT.  BUT I DO NOT FEEL OBLIGED TO EXTEND ITS SCOPE
BEYOND ITS REQUIREMENTS. 

THERE IS AN IMPORTANT DIFFERENCE BETWEEN REVIEW OF STATE COURT
DECISIONS AND DECISIONS OF THE DISTRICT COURTS.  THE LATTER ARE SUBJECT
TO REVIEW AS A MATTER OF COURSE BY THE CIRCUIT COURTS OF APPEALS.  THEY
ARE NOT DEPENDENT ON REVIEW BY GRACE THROUGH CERTIORARI, AS WOULD BE
COMPARABLE STATE DECISIONS EXCEPT FOR THE DAHNKE-WALKER DOCTRINE.  I DO
NOT FEEL MYSELF REQUIRED BY THE ACT OF AUGUST 24, 1937, TO HOLD THAT
DIRECT APPEAL LIES TO THIS COURT WHENEVER A DISTRICT COURT FINDS
UNCONSTITUTIONAL AN APPLICATION OF A STATUTE TO THE CIRCUMSTANCES OF A
PARTICULAR CASE.  IT IS ONE THING NOT TO ALLOW FINAL DETERMINATION OF
THE FATE OF A FEDERAL STATUTE TO BE DELAYED UNTIL A DECISION OF A
DISTRICT COURT CAN GO THROUGH A CIRCUIT COURT OF APPEALS AND THEN REACH
THIS COURT.  IT IS QUITE ANOTHER THING TO BRING HERE DIRECTLY FROM A
DISTRICT COURT EVERY DECISION INDICATING UNCONSTITUTIONALITY IN
APPLICATION, NO MATTER HOW RESTRICTED ITS INCIDENCE.  OF COURSE THIS
DOES NOT MEAN THAT DIRECT REVIEW OF DISTRICT COURT DECISIONS BY THIS
COURT WOULD BE AVAILABLE ONLY FOR CASES THAT INVOLVE "THE
CONSTITUTIONALITY AS A WHOLE" OF A CHALLENGED STATUTE.  THE ACT OF 1937
REFERS EXPLICITLY TO INVALIDATION "IN WHOLE OR IN PART."  ALTHOUGH THIS
IS MADE EXPLICIT IN SEC. 3 OF THE ACT, THE SCOPE OF DIRECT REVIEW HERE,
ON THE SCORE OF UNCONSTITUTIONALITY, OUGHT NOT TO BE DIFFERENT UNDER
DIFFERENT SECTIONS OF THIS ACT.  A DIRECT APPEAL IS CALLED FOR ONLY
WHEN A DISTRICT COURT STRIKES DOWN, IN WHOLE OR IN PART, THAT WHICH
CONGRESS HAS UNEQUIVOCALLY WRITTEN.  IT IS UNWARRANTED WHEN ALL THAT IS
IN ISSUE IS WHETHER THE ALLOWABLE SCOPE OF WHAT CONGRESS HAS WRITTEN
EXCLUDES A PARTICULAR SITUATION. 

THE IMMEDIATE CASE GIVES POINT TO THESE GENERAL OBSERVATIONS.  THE
INCIDENTS OF A JUDGMENT ARE NOT THE SAME IN ALL THE STATES.  THE EFFECT
OF THIS ACT UPON JUDGMENTS IN THE DIFFERENT STATES MAY THUS INVOLVE
CONSIDERATION OF THE PROCEDURE OF A PARTICULAR STATE.  THESE ARE HARDLY
QUESTIONS OF THE KIND WHICH LED TO THE AUTHORIZATION, BY THE ACT OF
AUGUST 24, 1937, OF DIRECT REVIEW WHERE A DISTRICT COURT'S DECISION "IS
AGAINST THE CONSTITUTIONALITY OF ANY ACT OF CONGRESS."  50 STAT. 751,
752. 

NOR SHOULD IT BE DECISIVE OF THIS COURT'S EXCEPTIONAL JURISDICTION ON
DIRECT APPEAL FROM THE DISTRICT COURTS THAT THE GOVERNMENT IS THE
LITIGANT.  LIKE OTHER LITIGANTS THE GOVERNMENT AT TIMES ATTACHES
IMPORTANCE TO A PARTICULAR CASE OUT OF ALL PROPORTION TO THE MORE
COMPREHENSIVE FACTORS THAT SHOULD CONTROL THIS COURT'S JURISDICTION. 
WE CANNOT BE BLIND TO THE FACT THAT REVIEW HERE IS SOMETIMES PRESSED IN
RESPONSE TO COMMENDABLE ADMINISTRATIVE EARNESTNESS WHICH FAILS,
HOWEVER, TO TAKE FULLY INTO ACCOUNT THE DEMANDS OF THIS COURT'S
BUSINESS.  MOREOVER, IT WAS NOT THE INTEREST OF THE GOVERNMENT AS SUCH
WHICH MOVED CONGRESS TO GRANT DIRECT APPEALS FROM THE DISTRICT COURTS. 
BY THE JUDICIARY ACT OF 1925 CONGRESS NARROWLY CONFINED DIRECT REVIEW
HERE OF DISTRICT COURT DECISIONS REGARDLESS OF THE CHARACTER OF THE
LITIGANT, AND THE EXTENSION OF SUCH REVIEW BY THE ACT OF 1937 SHOULD BE
STRICTLY CONFINED. 

I WOULD DISMISS THIS APPEAL AND REMAND THE CASE TO THE CIRCUIT COURT
OF APPEALS.  SEE OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO.,
292 U.S. 386, 392, AND PHILLIPS V. UNITED STATES, 312 U.S. 246, 254. 
..END :














FLEMING V. MOHAWK CO., 331 U.S. 111 


ARGUED APRIL 1, 1947.  - DECIDED APRIL 28, 1947.  - 156 F.2D 891,
REVERSED - 81 U.S. APP. D.C. 156, 156 F.2D 561, AFFIRMED. 


1.  THE PRESIDENT'S EXECUTIVE ORDER NO. 9809, ISSUED UNDER SEC. 1 OF
THE FIRST WAR POWERS ACT OF 1941 AFTER THE CESSATION OF HOSTILITIES BUT
BEFORE THE TERMINATION OF A TECHNICAL STATE OF WAR, VALIDLY
CONSOLIDATED THE OFFICE OF PRICE ADMINISTRATION AND THREE OTHER
AGENCIES INTO THE OFFICE OF TEMPORARY CONTROLS.  PP. 113-119. 

(A)  THE WAR POWERS ARE ADEQUATE TO DEAL WITH PROBLEMS OF LAW
ENFORCEMENT WHICH ARISE DURING THE PERIOD OF HOSTILITIES BUT DO NOT
CEASE WITH THEM.  P. 116. 

(B)  SECTION 1 OF THE FIRST WAR POWERS ACT, AUTHORIZING THE PRESIDENT
TO REDISTRIBUTE FUNCTIONS AMONG EXECUTIVE AGENCIES, AUTHORIZES THE
CREATION OF A NEW AGENCY AND THE CONSOLIDATION WITHIN IT OF FUNCTIONS
AND POWERS PREVIOUSLY EXERCISED BY ONE OR MORE OTHER AGENCIES.  P.
116. 

(C)  THE AUTHORITY CONFERRED UPON THE PRESIDENT BY SEC. 1 OF THE
FIRST WAR POWERS ACT WAS NOT LIMITED TO THE TRANSFER OF FUNCTIONS FROM
AGENCIES EXISTING WHEN THE ACT BECAME LAW.  P. 117. 

(D)  AN INCUMBENT OF AN OFFICE "EXISTING BY LAW," WITHIN THE MEANING
OF SEC. 2, AT THE TIME OF THE PASSAGE OF THE FIRST WAR POWERS ACT WHO
HAS ONCE BEEN CONFIRMED BY THE SENATE NEED NOT BE CONFIRMED AGAIN IN
ORDER TO EXERCISE POWERS TRANSFERRED TO HIM BY THE PRESIDENT FROM
ANOTHER OFFICER APPOINTED BY THE PRESIDENT AND CONFIRMED BY THE
SENATE.  P. 118. 

2.  UNDER RULE 25 OF THE RULES OF CIVIL PROCEDURE, THE TEMPORARY
CONTROLS ADMINISTRATOR WAS PROPERLY SUBSTITUTED FOR THE PRICE
ADMINISTRATOR IN PENDING ENFORCEMENT PROCEEDINGS AFTER THE LIFTING OF
MOST PRICE CONTROLS - THERE BEING "SUBSTANTIAL NEED" FOR CONTINUING AND
MAINTAINING ENFORCEMENT PROCEEDINGS PREVIOUSLY BROUGHT BY THE PRICE
ADMINISTRATOR, SINCE THE EMERGENCY PRICE CONTROL ACT PRESERVED ACCRUED
RIGHTS AND LIABILITIES THEREUNDER.  P. 119. 

3.  UNDER SEC. 201 OF THE EMERGENCY PRICE CONTROL ACT, THE PRICE
ADMINISTRATOR COULD DELEGATE TO DISTRICT DIRECTORS AUTHORITY TO SIGN
AND ISSUE SUBPOENAS.  CUDAHY PACKING CO. V. HOLLAND, 315 U.S. 357,
DISTINGUISHED.  PP. 119-123. 

FLEMING, TEMPORARY CONTROLS ADMINISTRATOR, V. MOHAWK WRECKING & LUMBER
CO. ET AL. 

NO. 583.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT* . 

*TOGETHER WITH NO. 512, RALEY ET AL., TRADING AS RALEY'S FOOD STORE,
V. FLEMING, TEMPORARY CONTROLS ADMINISTRATOR, ON CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

NO. 583.  THE PRICE ADMINISTRATOR APPLIED TO A DISTRICT COURT FOR AN
ORDER UNDER SEC. 202(E) OF THE EMERGENCY PRICE CONTROL ACT, 56 STAT.
23, AS AMENDED, TO ENFORCE A SUBPOENA DUCES TECUM ISSUED BY A DISTRICT
DIRECTOR OF THE OFFICE OF PRICE ADMINISTRATION.  THE DISTRICT COURT
DENIED AND DISMISSED THE APPLICATION.  65 F.SUPP.  164.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  156 F.2D 891.  THIS COURT GRANTED
CERTIORARI, 329 U.S. 705, AND ORDERED SUBSTITUTION OF THE TEMPORARY
CONTROLS ADMINISTRATOR FOR THE PRICE ADMINISTRATOR.  329 U.S. 688. 
REVERSED, P. 123. 

NO. 512.  THE PRICE ADMINISTRATOR APPLIED TO THE DISTRICT COURT OF
THE UNITED STATES FOR THE DISTRICT OF COLUMBIA FOR AN ORDER TO ENFORCE
A SUBPOENA DUCES TECUM ISSUED BY THE DISTRICT DIRECTOR OF THE OFFICE OF
PRICE ADMINISTRATION.  THAT COURT ORDERED COMPLIANCE WITH THE
SUBPOENA.  THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA AFFIRMED.  81 U.S. APP. D.C. 156, 156 F.2D 561.  THIS COURT
GRANTED CERTIORARI, 329 U.S. 705, AND ORDERED SUBSTITUTION OF THE
TEMPORARY CONTROLS ADMINISTRATOR FOR THE PRICE ADMINISTRATOR.  329 U.S.
687.  AFFIRMED, P. 123. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BLACK. 

THESE CASES PRESENT THE QUESTION WHETHER THE EMERGENCY PRICE CONTROL
ACT, 56 STAT. 23, AS AMENDED, 50 U.S.C. APP. SUPP. V, SEC. 901 ET SEQ.,
AUTHORIZES THE ADMINISTRATOR TO DELEGATE TO DISTRICT DIRECTORS
AUTHORITY TO SIGN AND ISSUE SUBPOENAS.  IN THE FIRST OF THESE CASES THE
CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT HELD THAT SUCH AUTHORITY
DID NOT EXIST, 156 F.2D 891; IN THE SECOND, THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA HELD THAT IT DID.  81 U.S. APP. D.C. 156, 156
F.2D 561.  THE CASES ARE HERE ON PETITIONS FOR WRITS OF CERTIORARI
WHICH WE GRANTED TO RESOLVE THE CONFLICT. 

FIRST.  AFTER WE GRANTED THE PETITIONS WE ORDERED, ON MOTION OF THE
ACTING SOLICITOR GENERAL, THAT PHILIP B. FLEMING, TEMPORARY CONTROLS
ADMINISTRATOR, BE SUBSTITUTED AS A PARTY IN EACH CASE IN PLACE OF PAUL
A. PORTER, ADMINISTRATOR, OFFICE OF PRICE ADMINISTRATION, RESIGNED. 
THEREAFTER RESPONDENTS IN THE FIRST OF THESE CASES FILED A MOTION TO
VACATE THE ORDER OF SUBSTITUTION, A MOTION WHICH WE DEFERRED TO THE
HEARING ON THE MERITS.  FN1  THE QUESTION HAS NOW BEEN BRIEFED AND
ARGUED AND WE CONCLUDE THAT THE MOTION TO VACATE THE ORDER OF
SUBSTITUTION SHOULD BE DENIED. 

THE ACT WAS AMENDED IN 1946 TO PROVIDE FOR ITS TERMINATION NOT LATER
THAN JUNE 30, 1947, SAVING, HOWEVER, RIGHTS AND LIABILITIES INCURRED
PRIOR TO THE TERMINATION DATE.  FN2  BY NOVEMBER 12, 1946, ALMOST ALL
COMMODITIES (INCLUDING SERVICES) WERE BY ADMINISTRATIVE ORDER  FN3
MADE EXEMPT FROM PRICE CONTROL.  FN4  PRICE CONTROL HAD THUS ENTERED A
TEMPORARY TRANSITION PERIOD.  ON DECEMBER 12, 1946, THE PRESIDENT
ISSUED AN EXECUTIVE ORDER "FOR THE PURPOSE OF FURTHER EFFECTUATING THE
TRANSITION FROM WAR TO PEACE AND IN THE INTEREST OF THE INTERNAL
MANAGEMENT OF THE GOVERNMENT."  THAT ORDER CONSOLIDATED THE OFFICE OF
PRICE ADMINISTRATION AND THREE OTHER AGENCIES INTO THE OFFICE OF
TEMPORARY CONTROLS N5 - AN AGENCY IN THE OFFICE FOR EMERGENCY
MANAGEMENT OF THE EXECUTIVE OFFICE OF THE PRESIDENT.  THE LATTER HAD
PREVIOUSLY BEEN ESTABLISHED PURSUANT TO THE REORGANIZATION ACT OF
1939.  FN6  THE EXECUTIVE ORDER PROVIDED A TEMPORARY CONTROLS
ADMINISTRATOR, APPOINTED BY THE PRESIDENT, TO HEAD THE OFFICE OF
TEMPORARY CONTROLS AND VESTED IN HIM, INTER ALIA, THE FUNCTIONS OF THE
PRICE ADMINISTRATOR, INCLUDING THE AUTHORITY TO MAINTAIN IN HIS OWN
NAME CIVIL PROCEEDINGS, WHETHER OR NOT THEN PENDING, RELATING TO
MATTERS THERETOFORE UNDER THE JURISDICTION OF THE PRICE ADMINISTRATOR. 
PETITIONER IS THE TEMPORARY CONTROLS ADMINISTRATOR APPOINTED BY THE
PRESIDENT. 

IT IS ARGUED THAT THE PRESIDENT HAD NO AUTHORITY TO TRANSFER THE
FUNCTIONS OF THE PRICE ADMINISTRATOR TO ANOTHER AGENCY AND TO VEST IN
AN OFFICER APPOINTED BY THE PRESIDENT THE POWER WHICH THE EMERGENCY
PRICE CONTROL ACT, SEC. 201, HAD CONFERRED UPON AN ADMINISTRATOR
APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE
SENATE.  AND IT IS SAID THAT EVEN THOUGH SUCH AUTHORITY EXISTED, IT
CAME TO AN END WITH THE CESSATION OF HOSTILITIES. 

BY SEC. 1 OF THE FIRST WAR POWERS ACT OF 1941, 55 STAT. 838, 50
U.S.C. APP. SUPP. V, SEC. 601, THE PRESIDENT IS 

"AUTHORIZED TO MAKE SUCH REDISTRIBUTION OF FUNCTIONS AMONG EXECUTIVE
AGENCIES AS HE MAY DEEM NECESSARY, INCLUDING ANY FUNCTIONS, DUTIES, AND
POWERS HITHERTO BY LAW CONFERRED UPON ANY EXECUTIVE DEPARTMENT,
COMMISSION, BUREAU, AGENCY, GOVERNMENTAL CORPORATION, OFFICE, OR
OFFICER, IN SUCH MANNER AS IN HIS JUDGMENT SHALL SEEM BEST FITTED TO
CARRY OUT THE PURPOSES OF THIS TITLE, AND TO THIS END IS AUTHORIZED TO
MAKE SUCH REGULATIONS AND TO ISSUE SUCH ORDERS AS HE MAY DEEM NECESSARY
...  " 

THAT POWER MAY BE EXERCISED "ONLY IN MATTERS RELATING TO THE CONDUCT
OF THE PRESENT WAR," SEC. 1, AND EXPIRES SIX MONTHS AFTER "THE
TERMINATION OF THE WAR."  SEC. 401. 

ON DECEMBER 31, 1946, AFTER THE CREATION OF THE OFFICE OF TEMPORARY
CONTROLS, THE PRESIDENT, WHILE RECOGNIZING THAT "A STATE OF WAR STILL
EXISTS," BY PROCLAMATION DECLARED THAT HOSTILITIES HAD TERMINATED.  FN7
THE CESSATION OF HOSTILITIES DOES NOT NECESSARILY END THE WAR POWER. 
IT WAS STATED IN HAMILTON V. KENTUCKY DISTILLERIES & W. CO., 251 U.S.
146, 161, THAT THE WAR POWER INCLUDES THE POWER "TO REMEDY THE EVILS
WHICH HAVE ARISEN FROM ITS RISE AND PROGRESS" AND CONTINUES DURING THAT
EMERGENCY.  STEWART V. KAHN, 11 WALL.  493, 507.  WHATEVER MAY BE THE
REACH OF THAT POWER, IT IS PLAINLY ADEQUATE TO DEAL WITH PROBLEMS OF
LAW ENFORCEMENT WHICH ARISE DURING THE PERIOD OF HOSTILITIES BUT DO NOT
CEASE WITH THEM.  NO MORE IS INVOLVED HERE. 

CREATION OF A NEW AGENCY WHICH CONSOLIDATES THE FUNCTIONS AND POWERS
PREVIOUSLY EXERCISED BY ONE OR MORE OTHER AGENCIES.  BUT THE ACT HAS
BEEN REPEATEDLY CONSTRUED BY THE PRESIDENT TO CONFER SUCH AUTHORITY. 
FN8  SUCH CONSTRUCTION BY THE CHIEF EXECUTIVE, BEING BOTH
CONTEMPORANEOUS AND CONSISTENT, IS ENTITLED TO GREAT WEIGHT.  SEE
UNITED STATES V. JACKSON, 280 U.S. 183, 193; BILLINGS V. TRUESDELL, 321
U.S. 542, 552-553.  AND THE APPROPRIATION BY CONGRESS OF FUNDS FOR THE
USE OF SUCH AGENCIES STANDS AS CONFIRMATION AND RATIFICATION OF THE
ACTION OF THE CHIEF EXECUTIVE.  BROOKS V. DEWAR, 313 U.S. 354, 361. 

NOR DO WE THINK THERE IS MERIT IN THE CONTENTION THAT THE FIRST WAR
POWERS ACT GAVE THE PRESIDENT AUTHORITY TO TRANSFER FUNCTIONS ONLY FROM
AGENCIES IN EXISTENCE WHEN THAT ACT BECAME LAW.  IT IS TRUE THAT SEC. 1
AUTHORIZES THE PRESIDENT "TO MAKE SUCH REDISTRIBUTION OF FUNCTIONS
AMONG EXECUTIVE AGENCIES AS HE MAY DEEM NECESSARY, INCLUDING ANY
FUNCTIONS, DUTIES, AND POWERS HITHERTO BY LAW CONFERRED UPON" ANY
AGENCY.  BUT THE LATTER CLAUSE IS ONLY AN ILLUSTRATION OF THE AUTHORITY
GRANTED, NOT A LIMITATION ON IT.  IT MAKES CLEAR THAT THE AUTHORITY
EXTENDS TO EXISTING AGENCIES AS WELL AS TO OTHERS.  THAT CONSTRUCTION
IS SUPPORTED BY SEC. 5 OF THE ACT WHICH STATES THAT UPON ITS
TERMINATION ALL EXECUTIVE AND ADMINISTRATIVE AGENCIES "SHALL EXERCISE
THE SAME FUNCTIONS, DUTIES, AND POWERS AS HERETOFORE OR AS HEREAFTER BY
LAW MAY BE PROVIDED, ANY AUTHORIZATION OF THE PRESIDENT UNDER THIS
TITLE TO THE CONTRARY NOTWITHSTANDING."  AS STATED BY THE EMERGENCY
COURT OF APPEALS, UNLESS SEC. 1 AUTHORIZES THE PRESIDENT TO
REDISTRIBUTE FUNCTIONS OF AGENCIES CREATED AFTER THE PASSAGE OF THE
ACT, THE REFERENCE IN SEC. 5 TO FUNCTIONS "HEREAFTER" PROVIDED BY LAW
IS "WHOLLY MEANINGLESS."  CALIFORNIA LIMA BEAN GROWERS ASSN. V. BOWLES,
150 F.2D 964, 967.  NOR IS THAT RESULT AFFECTED BY THE SUBSEQUENT
ENACTMENT OF THE EMERGENCY PRICE CONTROL ACT WHICH IN SEC. 201(B)
AUTHORIZED THE PRESIDENT TO TRANSFER ANY OF THE POWERS AND FUNCTIONS OF
THE OFFICE OF PRICE ADMINISTRATION "WITH RESPECT TO A PARTICULAR
COMMODITY OR COMMODITIES" TO ANY GOVERNMENT AGENCY HAVING OTHER
FUNCTIONS RELATING TO SUCH COMMODITIES.  WHATEVER EFFECT THAT PROVISION
MAY HAVE, IT DOES NOT PURPORT TO DEAL WITH GENERAL ENFORCEMENT
FUNCTIONS AND SO RESTRICTS IN NO WAY THE AUTHORITY OF THE PRESIDENT
UNDER THE FIRST WAR POWERS ACT TO TRANSFER THEM.  YET ENFORCEMENT
FUNCTIONS ARE ALL THAT ARE INVOLVED IN THE PRESENT CASES. 

WE NEED NOT DECIDE WHETHER UNDER THE FIRST WAR POWERS ACT THE
PRESIDENT HAD AUTHORITY TO TRANSFER FUNCTIONS OF AN OFFICER WHO NEED BE
CONFIRMED BY THE SENATE TO ONE APPOINTED BY THE PRESIDENT WITHOUT
SENATE CONFIRMATION.  FOR SEC. 2 OF THAT ACT PROVIDES: 

"THAT IN CARRYING OUT THE PURPOSES OF THIS TITLE THE PRESIDENT IS
AUTHORIZED TO UTILIZE, COORDINATE, OR CONSOLIDATE ANY EXECUTIVE OR
ADMINISTRATIVE COMMISSIONS, BUREAUS, AGENCIES, GOVERNMENTAL
CORPORATIONS, OFFICES, OR OFFICERS NOW EXISTING BY LAW, TO TRANSFER ANY
DUTIES OR POWERS FROM ONE EXISTING DEPARTMENT, COMMISSION, BUREAU,
AGENCY, GOVERNMENTAL CORPORATION, OFFICE, OR OFFICER TO ANOTHER, TO
TRANSFER THE PERSONNEL THEREOF OR ANY PART OF IT EITHER BY DETAIL OR
ASSIGNMENT, TOGETHER WITH THE WHOLE OR ANY PART OF THE RECORDS AND
PUBLIC PROPERTY BELONGING THERETO." 

THE AUTHORITY TO "UTILIZE  ...  OFFICES, OR OFFICERS NOW EXISTING BY
LAW" IS SUFFICIENT TO SUSTAIN THE TRANSFER OF FUNCTIONS UNDER THE
EXECUTIVE ORDER FROM PORTER, RESIGNED, TO FLEMING.  FOR PRIOR TO THE
ACT FLEMING HAD BEEN APPOINTED BY THE PRESIDENT AND CONFIRMED BY THE
SENATE AS FEDERAL WORKS ADMINISTRATOR.  FN9  HE THUS WAS THE INCUMBENT
OF AN OFFICE "EXISTING BY LAW" AT THE TIME OF THE PASSAGE OF THE ACT
AND BY VIRTUE OF SEC. 2 COULD BE THE LAWFUL RECIPIENT THROUGH TRANSFER
BY THE PRESIDENT OF THE FUNCTIONS OF OTHER AGENCIES AS WELL.  TO HOLD
THAT AN OFFICER, PREVIOUSLY CONFIRMED BY THE SENATE, MUST BE ONCE MORE
CONFIRMED IN ORDER TO EXERCISE THE POWERS TRANSFERRED TO HIM BY THE
PRESIDENT WOULD BE QUITE INCONSISTENT WITH THE BROAD GRANT OF POWER
GIVEN THE PRESIDENT BY THE FIRST WAR POWERS ACT.  ANY DOUBTS ON THIS
SCORE WOULD, MOREOVER, BE REMOVED BY THE RECOGNITION BY CONGRESS IN A
RECENT APPROPRIATION OF THE STATUS OF THE TEMPORARY CONTROLS
ADMINISTRATOR N10.  THAT RECOGNITION WAS AN ACCEPTANCE OR RATIFICATION
BY CONGRESS OF THE PRESIDENT'S ACTION IN EXECUTIVE ORDER NO. 9809. 
SWAYNE & HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 301-302; BROOKS V.
DEWAR, SUPRA. 

FOR THESE REASONS FLEMING IS A SUCCESSOR IN OFFICE OF PORTER AND MAY
BE SUBSTITUTED AS A PARTY UNDER RULE 25, RULES OF CIVIL PROCEDURE.  THE
RULE REQUIRES A SHOWING OF "SUBSTANTIAL NEED" FOR CONTINUING AND
MAINTAINING THE ACTION.  THOUGH MOST OF THE CONTROLS HAVE BEEN LIFTED,
THE ACT IS STILL IN EFFECT.  LIABILITIES INCURRED PRIOR TO THE LIFTING
OF CONTROLS ARE NOT THEREBY WASHED OUT.  UNITED STATES V. HARK, 320
U.S. 531, 536; UTAH JUNK CO. V. PORTER, 328 U.S. 39, 44; COLLINS V.
PORTER, 328 U.S. 46, 49.  AND CONGRESS HAS EXPLICITLY PROVIDED THAT
ACCRUED RIGHTS AND LIABILITIES UNDER THE EMERGENCY PRICE CONTROL ACT
ARE PRESERVED WHETHER OR NOT SUIT IS STARTED PRIOR TO THE TERMINATION
DATE OF THE ACT.  FN11  IF INVESTIGATION WERE FORECLOSED AT THIS STAGE,
SUCH RIGHTS AS MAY EXIST WOULD BE DEFEATED, CONTRARY TO THE POLICY OF
THE ACT. 

SECOND.  WE COME THEN TO THE MERITS.  THE ADMINISTRATOR, BY ORDER,
DELEGATED THE FUNCTION OF SIGNING AND ISSUING SUBPOENAS TO REGIONAL
ADMINISTRATORS AND DISTRICT DIRECTORS N12.  SECTION 201(A) OF THE
EMERGENCY PRICE CONTROL ACT PROVIDES IN PART: 

"THE ADMINISTRATOR MAY, SUBJECT TO THE CIVIL-SERVICE LAWS, APPOINT
SUCH EMPLOYEES AS HE DEEMS NECESSARY IN ORDER TO CARRY OUT HIS
FUNCTIONS AND DUTIES UNDER THIS ACT, AND SHALL FIX THEIR COMPENSATION
IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED." 


"THE PRINCIPAL OFFICE OF THE ADMINISTRATOR SHALL BE IN THE DISTRICT
OF COLUMBIA, BUT HE OR ANY DULY AUTHORIZED REPRESENTATIVE MAY EXERCISE
ANY OR ALL OF HIS POWERS IN ANY PLACE." 

PRACTICALLY IDENTICAL PROVISIONS WERE INCLUDED IN SEC. 4(B) AND (C)
OF THE FAIR LABOR STANDARDS ACT, 52 STAT. 1060, 1061-1062, 29 U.S.C.
SEC. 204.  THE COURT HELD IN CUDAHY PACKING CO. V. HOLLAND, 315 U.S.
357, THAT THE LATTER PROVISIONS DID NOT AUTHORIZE THE ADMINISTRATOR
UNDER THAT ACT, TO DELEGATE HIS POWER TO SIGN AND ISSUE SUBPOENAS. 
ACCORDINGLY THE MAIN CONTROVERSY HERE IS WHETHER THE CUDAHY DECISION
CONTROLS THIS CASE.  WE DO NOT THINK IT DOES. 

THE LEGISLATIVE HISTORY OF THE ACT INVOLVED IN THE CUDAHY CASE SHOWED
THAT A PROVISION GRANTING AUTHORITY TO DELEGATE THE SUBPOENA POWER HAD
BEEN ELIMINATED WHEN THE BILL WAS IN CONFERENCE.  ON THE OTHER HAND,
THE SENATE COMMITTEE IN REPORTING THE BILL THAT BECAME THE EMERGENCY
PRICE CONTROL ACT DESCRIBED SEC. 201(A) AS AUTHORIZING THE
ADMINISTRATOR TO "PERFORM HIS DUTIES THROUGH SUCH EMPLOYEES OR AGENCIES
BY DELEGATING TO THEM ANY OF THE POWERS GIVEN TO HIM BY THE BILL."  AND
IT SAID THAT SEC. 201(B) AUTHORIZED HIM OR "ANY REPRESENTATIVE OR OTHER
AGENCY TO WHOM HE MAY DELEGATE ANY OR ALL OF HIS POWERS, TO EXERCISE
SUCH POWERS IN ANY PLACE."  S. REP. NO. 931, 77TH CONG., 2D SESS., PP.
20-21.  IN THE CUDAHY CASE THE ACT MADE EXPRESSLY DELEGABLE THE POWER
TO GATHER DATA AND MAKE INVESTIGATIONS, THUS LENDING SUPPORT TO THE
VIEW THAT WHEN CONGRESS DESIRED TO GIVE AUTHORITY TO DELEGATE, IT SAID
SO EXPLICITLY.  IN THE PRESENT ACT, THERE IS NO PROVISION WHICH
SPECIFICALLY AUTHORIZES DELEGATION AS TO A PARTICULAR FUNCTION.  IN THE
CUDAHY CASE, THE ACT MADE APPLICABLE TO THE POWERS AND DUTIES OF THE
ADMINISTRATOR THE SUBPOENA PROVISIONS OF THE FEDERAL TRADE COMMISSION
ACT, SECS. 9 AND 10, 38 STAT. 722, 723, 15 U.S.C. SECS. 49 AND 50,
WHICH ONLY AUTHORIZED EITHER THE COMMISSION OR ITS INDIVIDUAL MEMBERS
TO SIGN SUBPOENAS.  THE SUBPOENA POWER UNDER THE PRESENT ACT IS FOUND
IN SEC. 202(B)  FN13  AND IS NOT DEPENDENT ON THE PROVISIONS OF ANOTHER
ACT HAVING A HISTORY OF ITS OWN.  THE ACT INVOLVED IN THE CUDAHY CASE
GRANTED NO BROAD RULE-MAKING POWER.  SECTION 201(D) OF THE PRESENT ACT,
HOWEVER, PROVIDES: 

"THE ADMINISTRATOR MAY, FROM TIME TO TIME, ISSUE SUCH REGULATIONS AND
ORDERS AS HE MAY DEEM NECESSARY OR PROPER IN ORDER TO CARRY OUT THE
PURPOSES AND PROVISIONS OF THIS ACT." 

SUCH A RULE-MAKING POWER MAY ITSELF BE AN ADEQUATE SOURCE OF
AUTHORITY TO DELEGATE A PARTICULAR FUNCTION, UNLESS BY EXPRESS
PROVISION OF THE ACT OR BY IMPLICATION IT HAS BEEN WITHHELD.  SEE
PLAPAO LABORATORIES V. FARLEY, 67 APP. D.C. 304, 92 F.2D 228.  THERE IS
NO PROVISION IN THE PRESENT ACT NEGATIVING THE EXISTENCE OF SUCH
AUTHORITY, SO FAR AS THE SUBPOENA POWER IS CONCERNED.  NOR CAN THE
ABSENCE OF SUCH AUTHORITY BE FAIRLY INFERRED FROM THE HISTORY AND
CONTENT OF THE ACT.  THUS THE PRESENCE OF THE RULE-MAKING POWER,
TOGETHER WITH THE OTHER FACTORS DIFFERENTIATING THIS CASE FROM THE
CUDAHY CASE, INDICATES THAT THE AUTHORITY GRANTED BY SEC. 201(A) AND
(B) SHOULD NOT BE READ RESTRICTIVELY. 

AS STATED BY THE COURT IN PORTER V. MURRAY, 156 F.2D 781, 786-787,
THE OVERWHELMING NATURE OF THE PRICE CONTROL PROGRAM ENTRUSTED TO THE
ADMINISTRATOR SUGGESTS THAT THE ACT SHOULD BE CONSTRUED SO AS TO GIVE
IT THE ADMINISTRATIVE FLEXIBILITY NECESSARY FOR PROMPT AND EXPEDITIOUS
ACTION ON A MULTITUDE OF FRONTS.  THE PROGRAM OF PRICE CONTROL
INAUGURATED PROBABLY THE MOST COMPREHENSIVE LEGAL CONTROLS OVER THE
ECONOMY EVER ATTEMPTED.  WE WOULD HESITATE TO CONCLUDE THAT ALL THE
VARIOUS FUNCTIONS GRANTED THE ADMINISTRATOR NEED BE PERFORMED
PERSONALLY BY HIM OR UNDER HIS PERSONAL DIRECTION.  CERTAINLY, SO FAR
AS THE INVESTIGATIVE FUNCTIONS WERE CONCERNED, HE COULD HARDLY BE
EXPECTED, IN VIEW OF THE MAGNITUDE OF THE TASK,  FN14  TO EXERCISE HIS
PERSONAL DISCRETION IN DETERMINING WHETHER A PARTICULAR INVESTIGATION
SHOULD BE LAUNCHED.  DELAY MIGHT DO INJURY BEYOND REPAIR.  THE
PYRAMIDING IN WASHINGTON OF ALL DECISIONS ON LAW ENFORCEMENT WOULD BE
APT TO END IN PARALYSIS.  TO TEMPT THE ADMINISTRATOR TO SOLVE THE
PROBLEM BY SUPPLYING ALL HIS OFFICES WITH SUBPOENAS SIGNED IN BLANK
WOULD NOT FURTHER THE DEVELOPMENT OF ORDERLY AND RESPONSIBLE
ADMINISTRATION.  THESE CONSIDERATIONS REINFORCE THE CONSTRUCTION OF THE
ACT WHICH ALLOWS THE ADMINISTRATOR AUTHORITY TO DELEGATE HIS SUBPOENA
POWER. 

THE OTHER OBJECTIONS TO THE SUBPOENAS ARE WITHOUT MERIT. 

WE REVERSE THE JUDGMENT IN FLEMING V. MOHAWK WRECKING & LUMBER CO.,
AND AFFIRM THE JUDGMENT IN RALEY V. FLEMING.  SO ORDERED. 

FN1  COMPARE PORTER V. AMERICAN DISTILLING CO., 71 F.SUPP.  483;
PORTER V. BOWERS, 70 F.SUPP.  751, AND BOWLES V. ELL-CARR CO., INC., 71
F.SUPP.  482, WITH PORTER V. WILSON, 69 F.SUPP.  447, AND PORTER V.
HIRAHARA, 69 F.SUPP.  441. 

FN2  60 STAT. 664.  SECTION 1(B) NOW PROVIDES: 

"THE PROVISIONS OF THIS ACT, AND ALL REGULATIONS, ORDERS, PRICE
SCHEDULES, AND REQUIREMENTS THEREUNDER, SHALL TERMINATE ON JUNE 30,
1947, OR UPON THE DATE OF A PROCLAMATION BY THE PRESIDENT, OR UPON THE
DATE SPECIFIED IN A CONCURRENT RESOLUTION BY THE TWO HOUSES OF THE
CONGRESS, DECLARING THAT THE FURTHER CONTINUANCE OF THE AUTHORITY
GRANTED BY THIS ACT IS NOT NECESSARY IN THE INTEREST OF THE NATIONAL
DEFENSE AND SECURITY, WHICHEVER DATE IS THE EARLIER; EXCEPT THAT AS TO
OFFENSES COMMITTED, OR RIGHTS OR LIABILITIES INCURRED, PRIOR TO SUCH
TERMINATION DATE, THE PROVISIONS OF THIS ACT AND SUCH REGULATIONS,
ORDERS, PRICE SCHEDULES, AND REQUIREMENTS SHALL BE TREATED AS STILL
REMAINING IN FORCE FOR THE PURPOSE OF SUSTAINING ANY PROPER SUIT,
ACTION, OR PROSECUTION WITH RESPECT TO ANY SUCH RIGHT, LIABILITY, OR
OFFENSE." 

FN3  EXPRESS PROVISIONS FOR DECONTROL WERE ADDED BY THE 1946
AMENDMENTS.  SEE, FOR EXAMPLE, SEC. LA (B)-(H). 

FN4  SEE SUPPLEMENTARY ORDER 193, NOVEMBER 12, 1946, 11 FED. REG.
13464, AS AMENDED NOVEMBER 19, 1946, 11 FED. REG. 13637. 

FN5  EXEC. ORDER NO. 9809, 11 FED. REG. 14281. 

FN6  SEE REORGANIZATION PLAN I, 5 U.S.C. SEC. 133T (NOTE); 4 FED.
REG. 3864; 6 FED. REG. 192. 

FN7  PROCLAMATION 2714, 12 FED. REG. 1. 

FN8  EACH OF THE FOLLOWING AGENCIES WAS A NEW AGENCY CREATED BY
EXECUTIVE ORDER TO EXERCISE POWERS FORMERLY VESTED IN OTHER AGENCIES OR
TO PERFORM NEW FUNCTIONS:  NATIONAL HOUSING AGENCY, EXEC. ORDER NO.
9070, 7 FED. REG. 1529; WAR FOOD ADMINISTRATION, EXEC. ORDER NO. 9334,
8 FED. REG. 5423; OFFICE OF WAR MOBILIZATION, EXEC. ORDER NO. 9347, 8
FED. REG. 7207; OFFICE OF ECONOMIC WARFARE, EXEC. ORDER NO. 9361, 8
FED. REG. 9861; FOREIGN ECONOMIC ADMINISTRATION, EXEC. ORDER NO. 9380,
8 FED. REG. 13081; SURPLUS WAR PROPERTY ADMINISTRATION, EXEC. ORDER NO.
9425, 9 FED. REG. 2071. 

FN9  DECEMBER 4, 1941.  SEE 87 CONG. REC. 9413. 

FN10  61 STAT. 14, 16, UNDER THE HEADING "EXECUTIVE OFFICE OF THE
PRESIDENT, OFFICE FOR EMERGENCY MANAGEMENT," THE FOLLOWING:

                     "OFFICE OF TEMPORARY CONTROLS 

"SALARIES AND EXPENSES:  FOR AN ADDITIONAL AMOUNT, FISCAL YEAR 1947,
FOR THE OFFICE OF PRICE ADMINISTRATION TRANSFERRED BY EXECUTIVE ORDER
9809 OF DECEMBER 12, 1946, TO THE OFFICE OF TEMPORARY CONTROLS,
$7,051,752, TO BE AVAILABLE FOR THE PAYMENT OF TERMINAL LEAVE ONLY:
PROVIDED, THAT IT IS THE INTENT OF THE CONGRESS THAT THE FUNDS
HERETOFORE AND HEREIN APPROPRIATED SHALL INCLUDE ALL EXPENSES INCIDENT
TO THE CLOSING AND LIQUIDATION OF THE OFFICE OF PRICE ADMINISTRATION
AND THE OFFICE OF TEMPORARY CONTROLS BY JUNE 30, 1947." 

FN11  SEE SEC. 1(B) SUPRA, NOTE 2.  AND FOR THE GENERAL STATUTE
PREVENTING THE EXTINGUISHMENT OF LIABILITY UNDER A REPEALED STATUTE,
UNLESS THE REPEALING ACT EXPRESSLY PROVIDES FOR IT, SEE REV. STAT. SEC.
13, AS AMENDED, 58 STAT. 118, 1 U.S.C. SUPP. V, SEC. 29. 

FN12  REVISED GENERAL ORDER 53, MAY 13, 1944, 9 FED. REG. 5191. 

FN13  SECTION 202(B) PROVIDES IN PART: 

"THE ADMINISTRATOR MAY ADMINISTER OATHS AND AFFIRMATIONS AND MAY,
WHENEVER NECESSARY, BY SUBPENA REQUIRE ANY SUCH PERSON TO APPEAR AND
TESTIFY OR TO APPEAR AND PRODUCE DOCUMENTS, OR BOTH, AT ANY DESIGNATED
PLACE." 

FN14  THE FOLLOWING STATISTICS INDICATE THE VOLUME OF LITIGATION AND
INVESTIGATIONS INVOLVED:

                                1943     1944     1945 1946 

CIVIL CASES COMMENCED BY 

UNITED STATES IN DISTRICT 

COURTS UNDER EMERGENCY 

PRICE CONTROL ACT.*  (FISCAL 

YEARS ENDING JUNE 30)...............    2,219    6,524   28,283
31,094 

INVESTIGATIONS COMPLETED BY 

OFFICE OF PRICE ADMINISTRA- 

TION.**  (CALENDAR YEARS)...........  652,851  333,151  193,348
106,240$* 

*(REP. DIR.  ADM.  OFF. U.S. COURTS (1943) TABLE 7; ID. 1944 TABLE 7;
ID. (1945) TABLE C3; ID. (1946) TABLE C3.) 

**(QUARTERLY REP. O.P.A.:  EIGHTH, P. 71; TWELFTH, P. 75;
SEVENTEENTH, P. 104; EIGHTEENTH, P. 82; NINETEENTH, P. 95.) 

$* FIRST NINE MONTHS ONLY. 

MR. JUSTICE JACKSON, CONCURRING. 

I CONCUR IN THE OPINION AND RESULT.  BUT THE ISSUE HERE IS SO RELATED
TO OTHER PROBLEMS THAT I DESIRE TO STATE MY GROUNDS. 

I WOULD BE RELUCTANT TO ADOPT A CONSTRUCTION OF AN ACT, SUCH AS THE
EMERGENCY PRICE CONTROL ACT, WHICH WOULD CERTAINLY IMPEDE ITS
ADMINISTRATION UNLESS IT WERE NECESSARY TO CARRY OUT THE INTENT OF
CONGRESS OR TO PROTECT FUNDAMENTAL INDIVIDUAL RIGHTS. 

IF THE ADMINISTRATOR MAY NOT DELEGATE HIS POWER TO SIGN SUBPOENAS BUT
MUST PERSONALLY SIGN ALL SUBPOENAS ISSUED IN THE PROCESS OF ENFORCEMENT
THROUGHOUT THE UNITED STATES, ONE OF TWO PRACTICES WOULD BE CERTAIN TO
RESULT.  HE MIGHT SIGN LARGE BATCHES OF BLANK SUBPOENAS AND TURN THEM
OVER TO SUBORDINATES TO BE FILLED IN OVER HIS SIGNATURE.  OR HE MIGHT
SIGN BATCHES OF SUBPOENAS ALREADY MADE OUT BY SUBORDINATES, PROBABLY
WITHOUT READING THEM AND CERTAINLY WITHOUT EXAMINING THE CAUSES FOR
THEIR ISSUANCE OR THE SCOPE OF THE INFORMATION REQUIRED.  THE PERSONAL
SIGNATURE OF THE ADMINISTRATOR ON THE SUBPOENA UNDER THOSE
CIRCUMSTANCES IS NO PROTECTION TO INDIVIDUAL RIGHTS. 

OF ALL THE SUBPOENAS ISSUED BY ADMINISTRATIVE AUTHORITY, A VERY SMALL
PERCENTAGE ARE CONTESTED.  THE IMPORTANT THING FOR PROTECTION OF THE
INDIVIDUAL IS THAT WHEN HE DOES HAVE REASONS FOR RESISTING OBEDIENCE HE
CAN OBTAIN A HEARING.  I AM IN DOUBT AS TO WHETHER UNDER THIS ACT AND
THE REGULATIONS FOR ITS ADMINISTRATION A PERSON WHO HAS REASONS FOR
RESISTING THE SUBPOENA HAS ANY ADMINISTRATIVE REVIEW OR REMEDY.  BUT IN
ANY EVENT HE CANNOT BE PUNISHED FOR CONTEMPT UNTIL A COURT ORDER FOR
ITS ENFORCEMENT HAS ISSUED AND HAS BEEN DISOBEYED. 

ENFORCEMENT OF SUCH SUBPOENAS BY THE COURTS IS NOT AND SHOULD NOT BE
AUTOMATIC.  SO LONG AS THEY ARE SUBJECT TO FULL INQUIRY AT THIS POINT
IT DOES NOT SEEM TO ME IMPORTANT TO THE INDIVIDUAL OR INCONSISTENT WITH
THE POLICY OF CONGRESS THAT THE SUBPOENA ISSUE BY A SUBORDINATE OF THE
ADMINISTRATOR.  IF THE COURTS WERE TO BE SHORN OF THEIR POWER OF
INDEPENDENT INQUIRY BEFORE ENFORCEMENT, AND I HAVE THOUGHT WE WERE
TENDING THAT WAY, CF. DISSENT IN PENFIELD CO. V. S.E.C., 330 U.S. 585,
I SHOULD EXPECT CONGRESS TO INTEND GREATER RESPONSIBILITY AT THE POINT
OF ORIGINAL ISSUE.  I CONCUR ONLY BECAUSE I THINK ADEQUATE JUDICIAL
SAFEGUARDS EXIST. 
..END :











CHAMPION PLUG CO. V. SANDERS, 331 U.S. 125 


NO. 680.  ARGUED APRIL 2, 3, 1947.  - DECIDED APRIL 28, 1947.  - 156
F.2D 488, AFFIRMED. 


1.  RESPONDENTS ENGAGED IN THE BUSINESS OF REPAIRING USED TRADE-MARKED
SPARK PLUGS AND RESELLING THEM WITHOUT REMOVING THE ORIGINAL TRADE
MARKS.  IN A SUIT BY THE MANUFACTURER, THE TRIAL COURT FOUND THAT
RESPONDENTS HAD INFRINGED THE TRADE MARK BUT THAT THERE HAD BEEN NO
FRAUD OR PALMING OFF.  IT DENIED AN ACCOUNTING BUT ENJOINED FURTHER
INFRINGEMENT.  HELD:  THE EQUITIES OF THIS CASE ARE SATISFIED BY A
DECREE REQUIRING THAT THE WORD "REPAIRED" OR "USED" BE PLAINLY AND
DURABLY STAMPED ON EACH PLUG AND THAT THE CONTAINERS AND PRINTED MATTER
USED IN CONNECTION WITH THE SALES CLEARLY SHOW THAT THE PLUGS ARE USED
AND RECONDITIONED BY RESPONDENTS, GIVING THEIR NAMES AND ADDRESS - EVEN
THOUGH THE DECREE DOES NOT REQUIRE THAT THE TRADE MARKS BE REMOVED. 
PP. 126-132. 

2.  UNDER THE TRADE MARK ACT OF 1905, A FINDING THAT A TRADE MARK HAS
BEEN INFRINGED DOES NOT NECESSARILY REQUIRE THAT AN ACCOUNTING BE
ORDERED WHERE AN INJUNCTION WILL SATISFY THE EQUITIES OF THE CASE.  P.
131. 

3.  IN THE CIRCUMSTANCES OF THIS CASE, A FINDING THAT RESPONDENTS HAD
ALSO ENGAGED IN UNFAIR COMPETITION DOES NOT REQUIRE MORE STRINGENT
CONTROLS OR THAT AN ACCOUNTING BE ORDERED.  PP. 130-132. 

CHAMPION SPARK PLUG CO. V. SANDERS ET AL., DOING BUSINESS AS PERFECT
RECONDITION SPARK PLUG CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

THE DISTRICT COURT FOUND THAT RESPONDENTS HAD INFRINGED PETITIONER'S
TRADE MARK, ENJOINED FURTHER INFRINGEMENT, AND DENIED AN ACCOUNTING. 
56 F.SUPP.  782, 61 F.SUPP.  247.  THE CIRCUIT COURT OF APPEALS
MODIFIED THE DECREE IN CERTAIN DETAILS.  156 F.2D 488.  THIS COURT
GRANTED CERTIORARI.  329 U.S. 709.  AFFIRMED, P. 132. 

OPINION OF THE COURT BY MR. JUSTICE DOUGLAS, ANNOUNCED BY MR. JUSTICE
BLACK. 

PETITIONER IS A MANUFACTURER OF SPARK PLUGS WHICH IT SELLS UNDER THE
TRADE MARK "CHAMPION."  RESPONDENTS COLLECT THE USED PLUGS, REPAIR AND
RECONDITION THEM, AND RESELL THEM.  RESPONDENTS RETAIN THE WORD
"CHAMPION" ON THE REPAIRED OR RECONDITIONED PLUGS.  THE OUTSIDE BOX OR
CARTON IN WHICH THE PLUGS ARE PACKED HAS STAMPED ON IT THE WORD
"CHAMPION," TOGETHER WITH THE LETTER AND FIGURE DENOTING THE PARTICULAR
STYLE OR TYPE.  THEY ALSO HAVE PRINTED ON THEM "PERFECT PROCESS SPARK
PLUGS GUARANTEED DEPENDABLE" AND "PERFECT PROCESS RENEWED SPARK
PLUGS."  EACH CARTON CONTAINS SMALLER BOXES IN WHICH THE PLUGS ARE
INDIVIDUALLY PACKED.  THESE INSIDE BOXES ALSO CARRY LEGENDS INDICATING
THAT THE PLUG HAS BEEN RENEWED.  FN1  BUT RESPONDENT COMPANY'S BUSINESS
NAME OR ADDRESS IS NOT PRINTED ON THE CARTONS.  IT SUPPLIES CUSTOMERS
WITH PETITIONER'S CHARTS CONTAINING RECOMMENDATIONS FOR THE USE OF
CHAMPION PLUGS.  ON EACH INDIVIDUAL PLUG IS STAMPED IN SMALL LETTERS,
BLUE ON BLACK, THE WORD "RENEWED," WHICH AT TIMES IS ALMOST ILLEGIBLE. 

PETITIONER BROUGHT THIS SUIT IN THE DISTRICT COURT, CHARGING
INFRINGEMENT OF ITS TRADE MARK AND UNFAIR COMPETITION.  SEE JUDICIAL
CODE SEC. 24(1), (7), 28 U.S.C. SEC. 41(1), (7).  THE DISTRICT COURT
FOUND THAT RESPONDENTS HAD INFRINGED THE TRADE MARK.  IT ENJOINED THEM
FROM OFFERING OR SELLING ANY OF PETITIONER'S PLUGS WHICH HAD BEEN
REPAIRED OR RECONDITIONED UNLESS (A) THE TRADE MARK AND TYPE AND STYLE
MARKS WERE REMOVED, (B) THE PLUGS WERE REPAINTED WITH A DURABLE GREY,
BROWN, ORANGE, OR GREEN PAINT, (C) THE WORD "REPAIRED" WAS STAMPED INTO
THE PLUG IN LETTERS OF SUCH SIZE AND DEPTH AS TO RETAIN ENOUGH WHITE
PAINT TO DISPLAY DISTINCTLY EACH LETTER OF THE WORD, (D) THE CARTONS IN
WHICH THE PLUGS WERE PACKED CARRIED A LEGEND INDICATING THAT THEY
CONTAINED USED SPARK PLUGS ORIGINALLY MADE BY PETITIONER AND REPAIRED
AND MADE FIT FOR USE UP TO 10,000 MILES BY RESPONDENT COMPANY.  FN2
THE DISTRICT COURT DENIED AN ACCOUNTING.  SEE 56 F.SUPP.  782, 61
F.SUPP.  247. 

THE CIRCUIT COURT OF APPEALS HELD THAT RESPONDENTS NOT ONLY HAD
INFRINGED PETITIONER'S TRADE MARK BUT ALSO WERE GUILTY OF UNFAIR
COMPETITION.  IT LIKEWISE DENIED AN ACCOUNTING BUT MODIFIED THE DECREE
IN THE FOLLOWING RESPECTS:  (A) IT ELIMINATED THE PROVISION REQUIRING
THE TRADE MARK AND TYPE AND STYLE MARKS TO BE REMOVED FROM THE REPAIRED
OR RECONDITIONED PLUGS; (B) IT SUBSTITUTED FOR THE REQUIREMENT THAT THE
WORD "REPAIRED" BE STAMPED INTO THE PLUG, ETC., A PROVISION THAT THE
WORD "REPAIRED" OR "USED" BE STAMPED AND BAKED ON THE PLUG BY AN
ELECTRICAL HOT PRESS IN A CONTRASTING COLOR SO AS TO BE CLEARLY AND
DISTINCTLY VISIBLE, THE PLUG HAVING BEEN COMPLETELY COVERED BY
PERMANENT ALUMINUM PAINT OR OTHER PAINT OR LACQUER; AND (C) IT
ELIMINATED THE PROVISION SPECIFYING THE PRECISE LEGEND TO BE PRINTED ON
THE CARTONS AND SUBSTITUTED THEREFOR A MORE GENERAL ONE.  FN3  156 F.2D
488.  THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE GRANTED
BECAUSE OF THE APPARENT CONFLICT BETWEEN THE DECISION BELOW AND
CHAMPION SPARK PLUG CO. V. REICH, 121 F.2D 769, DECIDED BY THE CIRCUIT
COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

THERE IS NO CHALLENGE HERE TO THE FINDINGS AS TO THE MISLEADING
CHARACTER OF THE MERCHANDISING METHODS EMPLOYED BY RESPONDENTS, NOR TO
THE CONCLUSION THAT THEY HAVE NOT ONLY INFRINGED PETITIONER'S TRADE
MARK BUT HAVE ALSO ENGAGED IN UNFAIR COMPETITION.  FN4  THE CONTROVERSY
HERE RELATES TO THE ADEQUACY OF THE RELIEF GRANTED, PARTICULARLY THE
REFUSAL OF THE CIRCUIT COURT OF APPEALS TO REQUIRE RESPONDENTS TO
REMOVE THE WORD "CHAMPION" FROM THE REPAIRED OR RECONDITIONED PLUGS
WHICH THEY RESELL. 

WE PUT TO ONE SIDE THE CASE OF A MANUFACTURER OR DISTRIBUTOR WHO
MARKETS NEW OR USED SPARK PLUGS OF ONE MAKE UNDER THE TRADE MARK OF
ANOTHER.  SEE BOURJOIS & CO. V. KATZEL, 260 U.S. 689; OLD DEARBORN CO.
V. SEAGRAM CORP., 299 U.S. 183, 194.  EQUITY THEN STEPS IN TO PROHIBIT
DEFENDANT'S USE OF THE MARK WHICH SYMBOLIZES PLAINTIFF'S GOOD WILL AND
"STAKES THE REPUTATION OF THE PLAINTIFF UPON THE CHARACTER OF THE
GOODS."  BOURJOIS & CO. V. KATZEL, SUPRA, P. 692. 

WE ARE DEALING HERE WITH SECOND-HAND GOODS.  THE SPARK PLUGS, THOUGH
USED, ARE NEVERTHELESS CHAMPION PLUGS AND NOT THOSE OF ANOTHER MAKE. 
FN5  THERE IS EVIDENCE TO SUPPORT WHAT ONE WOULD SUSPECT, THAT A USED
SPARK PLUG WHICH HAS BEEN REPAIRED OR RECONDITIONED DOES NOT MEASURE UP
TO THE SPECIFICATIONS OF A NEW ONE.  BUT THE SAME WOULD BE TRUE OF A
SECOND-HAND FORD OR CHEVROLET CAR.  AND WE WOULD NOT SUPPOSE THAT ONE
COULD BE ENJOINED FROM SELLING A CAR WHOSE VALVES HAD BEEN REGROUND AND
WHOSE PISTON RINGS HAD BEEN REPLACED UNLESS HE REMOVED THE NAME FORD OR
CHEVROLET.  PRESTONETTES, INC. V. COTY, 264 U.S. 359, WAS A CASE WHERE
TOILET POWDERS HAD AS ONE OF THEIR INGREDIENTS A POWDER COVERED BY A
TRADE MARK AND WHERE PERFUMES WHICH WERE TRADE MARKED WERE REBOTTLED
AND SOLD IN SMALLER BOTTLES.  THE COURT SUSTAINED A DECREE DENYING AN
INJUNCTION WHERE THE PRESCRIBED LABELS TOLD THE TRUTH.  MR. JUSTICE
HOLMES STATED, "A TRADE MARK ONLY GIVES THE RIGHT TO PROHIBIT THE USE
OF IT SO FAR AS TO PROTECT THE OWNER'S GOOD WILL AGAINST THE SALE OF
ANOTHER'S PRODUCT AS HIS.  ...  WHEN THE MARK IS USED IN A WAY THAT
DOES NOT DECEIVE THE PUBLIC WE SEE NO SUCH SANCTITY IN THE WORD AS TO
PREVENT ITS BEING USED TO TELL THE TRUTH.  IT IS NOT TABOO."  P. 368. 

CASES MAY BE IMAGINED WHERE THE RECONDITIONING OR REPAIR WOULD BE SO
EXTENSIVE OR SO BASIC THAT IT WOULD BE A MISNOMER TO CALL THE ARTICLE
BY ITS ORIGINAL NAME, EVEN THOUGH THE WORDS "USED" OR "REPAIRED" WERE
ADDED.  CF. INGERSOLL V. DOYLE, 247 F. 620.  BUT NO SUCH PRACTICE IS
INVOLVED HERE.  THE REPAIR OR RECONDITIONING OF THE PLUGS DOES NOT GIVE
THEM A NEW DESIGN.  IT IS NO MORE THAN A RESTORATION, SO FAR AS
POSSIBLE, OF THEIR ORIGINAL CONDITION.  THE TYPE MARKS ATTACHED BY THE
MANUFACTURER ARE DETERMINED BY THE USE TO WHICH THE PLUG IS TO BE PUT. 
BUT THE THREAD SIZE AND SIZE OF THE CYLINDER HOLE INTO WHICH THE PLUG
IS FITTED ARE NOT AFFECTED BY THE RECONDITIONING.  THE HEAT RANGE ALSO
HAS RELEVANCE TO THE TYPE MARKS.  AND THERE IS EVIDENCE THAT THE
RECONDITIONED PLUGS ARE INFERIOR SO FAR AS HEAT RANGE AND OTHER
QUALITIES ARE CONCERNED.  BUT INFERIORITY IS EXPECTED IN MOST SECOND
HAND ARTICLES.  INDEED, THEY GENERALLY COST THE CUSTOMER LESS.  THAT IS
THE CASE HERE.  INFERIORITY IS IMMATERIAL SO LONG AS THE ARTICLE IS
CLEARLY AND DISTINCTLY SOLD AS REPAIRED OR RECONDITIONED RATHER THAN AS
NEW.  FN6  THE RESULT IS, OF COURSE, THAT THE SECOND-HAND DEALER GETS
SOME ADVANTAGE FROM THE TRADE MARK.  BUT UNDER THE RULE OF
PRESTONETTES, INC. V. COTY, SUPRA, THAT IS WHOLLY PERMISSIBLE SO LONG
AS THE MANUFACTURER IS NOT IDENTIFIED WITH THE INFERIOR QUALITIES OF
THE PRODUCT RESULTING FROM WEAR AND TEAR OR THE RECONDITIONING BY THE
DEALER.  FULL DISCLOSURE GIVES THE MANUFACTURER ALL THE PROTECTION TO
WHICH HE IS ENTITLED. 

THE DECREE AS SHAPED BY THE CIRCUIT COURT OF APPEALS IS FASHIONED TO
SERVE THE REQUIREMENTS OF FULL DISCLOSURE.  WE CANNOT SAY THAT OF THE
ALTERNATIVES AVAILABLE THE ONES IT CHOSE ARE INADEQUATE FOR THAT
PURPOSE.  WE ARE MINDFUL OF THE FACT THAT THIS CASE, UNLIKE
PRESTONETTES, INC. V. COTY, SUPRA, INVOLVES UNFAIR COMPETITION AS WELL
AS TRADE MARK INFRINGEMENT; AND THAT WHERE UNFAIR COMPETITION IS
ESTABLISHED, ANY DOUBTS AS TO THE ADEQUACY OF THE RELIEF ARE GENERALLY
RESOLVED AGAINST THE TRANSGRESSOR.  WARNER & CO. V. LILLY & CO., 265
U.S. 526, 532.  BUT THERE WAS HERE NO SHOWING OF FRAUD OR PALMING OFF. 
THEIR ABSENCE, OF COURSE, DOES NOT UNDERMINE THE FINDING OF UNFAIR
COMPETITION.  FEDERAL TRADE COMMISSION V. WINSTED HOSIERY CO., 258 U.S.
483, 493-494; G.H. MUMM CHAMPAGNE V. EASTERN WINE CORP., 142 F.2D 499,
501.  BUT THE CHARACTER OF THE CONDUCT GIVING RISE TO THE UNFAIR
COMPETITION IS RELEVANT TO THE REMEDY WHICH SHOULD BE AFFORDED.  SEE
SIEGEL CO. V. FEDERAL TRADE COMMISSION, 327 U.S. 608.  WE CANNOT SAY
THAT THE CONDUCT OF RESPONDENTS IN THIS CASE, OR THE NATURE OF THE
ARTICLE INVOLVED AND THE CHARACTERISTICS OF THE MERCHANDISING METHODS
USED TO SELL IT, CALLED FOR MORE STRINGENT CONTROLS THAN THE CIRCUIT
COURT OF APPEALS PROVIDED. 

MISHAWAKA MFG. CO. V. KRESGE CO., 316 U.S. 203, STATES THE RULE
GOVERNING AN ACCOUNTING OF PROFITS WHERE A TRADE MARK HAS BEEN
INFRINGED AND WHERE THERE IS A BASIS FOR FINDING DAMAGE TO THE
PLAINTIFF AND PROFIT TO THE INFRINGER.  BUT IT DOES NOT STAND FOR THE
PROPOSITION THAT AN ACCOUNTING WILL BE ORDERED MERELY BECAUSE THERE HAS
BEEN AN INFRINGEMENT.  UNDER THE TRADE MARK ACT OF 1905,  FN7  AS UNDER
ITS PREDECESSORS, AN ACCOUNTING HAS BEEN DENIED WHERE AN INJUNCTION
WILL SATISFY THE EQUITIES OF THE CASE.  SAXLEHNER V. SIEGEL-COOPER CO.,
179 U.S. 42; ROWLEY CO. V. ROWLEY, 193 F. 390, 393; MIDDLEBY-MARSHALL
OVEN CO. V. WILLIAMS OVEN MFG. CO., 12 F.2D 919, 921; GOLDEN WEST
BREWING CO. V. MILONAS & SONS, 104 F.2D 880, 882; HEMMETER CIGAR CO. V.
CONGRESS CIGAR CO., 118 F.2D 64, 71-72; DURABLE TOY & NOVELTY CORP. V.
J. CHEIN & CO., 133 F.2D 853, 854-855.  THE SAME IS TRUE IN CASE OF
UNFAIR COMPETITION.  STRAUS V. NOTASEME CO., 240 U.S. 179, 181-183. 
HERE, AS WE HAVE NOTED, THERE HAS BEEN NO SHOWING OF FRAUD OR PALMING
OFF.  FOR SEVERAL YEARS RESPONDENTS APPARENTLY ENDEAVORED TO COMPLY
WITH A CEASE AND DESIST ORDER OF THE FEDERAL TRADE COMMISSION REQUIRING
THEM TO PLACE ON THE PLUGS AND ON THE CARTONS A LABEL REVEALING THAT
THE PLUGS WERE USED OR SECOND-HAND.  MOREOVER, AS STATED BY THE CIRCUIT
COURT OF APPEALS, THE LIKELIHOOD OF DAMAGE TO PETITIONER OR PROFIT TO
RESPONDENTS DUE TO ANY MISREPRESENTATION SEEMS SLIGHT.  IN VIEW OF
THESE VARIOUS CIRCUMSTANCES IT SEEMS TO US THAT THE INJUNCTION WILL
SATISFY THE EQUITIES OF THE CASE.  AFFIRMED. 

FN1  "THE PROCESS USED IN RENEWING THIS PLUG HAS BEEN DEVELOPED
THROUGH 10 YEARS CONTINUOUS EXPERIENCE.  THIS SPARK PLUG HAS BEEN
TESTED FOR FIRING UNDER COMPRESSION BEFORE PACKING." 

"THIS SPARK PLUG IS GUARANTEED TO BE A SELECTED USED SPARK PLUG,
THOROUGHLY RENEWED AND IN PERFECT MECHANICAL CONDITION AND IS
GUARANTEED TO GIVE SATISFACTORY SERVICE FOR 10,000 MILES." 

FN2  THE PRESCRIBED LEGEND READ:  "USED SPARK PLUGS) ORIGINALLY MADE
BY CHAMPION SPARK PLUG COMPANY REPAIRED AND MADE FIT FOR USE UP TO
10,000 MILES BY PERFECT RECONDITION SPARK PLUG CO., 1133 BEDFORD
AVENUE, BROOKLYN, N.Y." 

THE DECREE ALSO PROVIDED: 

"THE NAME AND ADDRESS OF THE DEFENDANTS TO BE LARGER AND MORE
PROMINENT THAN THE LEGEND ITSELF, AND THE NAME OF PLAINTIFF MAY BE IN
SLIGHTLY LARGER TYPE THAN THE REST OF THE BODY OF THE LEGEND." 

FN3  "THE DECREE SHALL PERMIT THE DEFENDANTS TO STATE ON CARTONS AND
CONTAINERS, SELLING AND ADVERTISING MATERIAL, BUSINESS RECORDS,
CORRESPONDENCE AND OTHER PAPERS, WHEN PUBLISHED, THE ORIGINAL MAKE AND
TYPE NUMBERS PROVIDED IT IS MADE CLEAR THAT ANY PLUG REFERRED TO
THEREIN IS USED AND RECONDITIONED BY THE DEFENDANTS, AND THAT SUCH
MATERIAL CONTAINS THE NAME AND ADDRESS OF DEFENDANTS." 

FN4  SEE FEDERAL TRADE COMMISSION V. WINSTED HOSIERY CO., 258 U.S.
483, 493-494; WARNER & CO. V. LILLY & CO., 265 U.S. 526, 530. 

FN5  CF. FEDERAL TRADE COMMISSION V. KLEIN, 5 F.T.C. 327. 

FN6  SEE FEDERAL TRADE COMMISSION V. TYPEWRITER EMPORIUM, 1 F.T.C.
105; FEDERAL TRADE COMMISSION V. CHECK WRITER MANUFACTURERS, 4 F.T.C.
87; IN THE MATTER OF FEDERAL AUTO PRODUCTS CO., 20 F.T.C. 334. 

FN7  SECTION 19 OF THAT ACT, 33 STAT. 724, 729, 15 U.S.C. SEC. 99,
PROVIDES IN PART, "  ... UPON A DECREE BEING RENDERED IN ANY SUCH CASE
FOR WRONGFUL USE OF A TRADE-MARK THE COMPLAINANT SHALL BE ENTITLED TO
RECOVER, IN ADDITION TO THE PROFITS TO BE ACCOUNTED FOR BY THE
DEFENDANT, THE DAMAGES THE COMPLAINANT HAS SUSTAINED THEREBY, AND THE
COURT SHALL ASSESS THE SAME OR CAUSE THE SAME TO BE ASSESSED UNDER ITS
DIRECTION." 
..END :












AYRSHIRE CORP. V. UNITED STATES, 331 U.S. 132 


NO. 467.  ARGUED APRIL 7, 8, 1947.  - DECIDED APRIL 28, 1947.  -
JUDGMENT VACATED AND APPEAL DISMISSED. 


1.  UNDER THE PROVISION OF THE URGENT DEFICIENCIES ACT OF OCTOBER 22,
1913, 28 U.S.C. SEC. 47, REQUIRING THAT AN APPLICATION TO ENJOIN OR SET
ASIDE ANY ORDER OF THE INTERSTATE COMMERCE COMMISSION BE "HEARD AND
DETERMINED" BY THREE JUDGES, A JUDGMENT BASED UPON A DETERMINATION BY
ONLY TWO JUDGES IS VOID - EVEN THOUGH ALL THREE JUDGES WERE PRESENT AT
THE HEARING AND ONE OF THEM WAS PREVENTED BY ILLNESS FROM PARTICIPATING
IN THE DETERMINATION OF THE CASE.  PP. 135-139. 

2.  THE FACT THAT A PRAYER FOR AN INTERLOCUTORY INJUNCTION WAS NOT
PRESSED AND THAT THE DECISION WAS ONLY ON AN APPLICATION FOR A
PERMANENT INJUNCTION MAKES NO DIFFERENCE, SINCE THE STATUTORY
REQUIREMENT THAT THREE JUDGES HEAR AND DETERMINE AN APPLICATION APPLIES
TO SUITS FOR PERMANENT AS WELL AS INTERLOCUTORY INJUNCTIONS.  JUDICIAL
CODE SEC. 266, DISTINGUISHED.  PP. 139-144. 

AYRSHIRE COLLIERIES CORP. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF INDIANA. 

TWO JUDGES OF A THREE-JUDGE COURT, DURING THE ABSENCE OF THE THIRD,
DENIED A PERMANENT INJUNCTION AGAINST ENFORCEMENT OF AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION.  ON APPEAL TO THIS COURT, THE JUDGMENT
IS VACATED AND THE APPEAL IS DISMISSED.  P. 144. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

APPELLANTS FILED COMPLAINTS IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF INDIANA SEEKING A TEMPORARY STAY, AN
INTERLOCUTORY INJUNCTION AND A PERMANENT INJUNCTION AGAINST THE
ENFORCEMENT OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, DATED
JULY 9, 1945.  THIS ORDER HAD BEEN ENTERED IN CONNECTION WITH FINDINGS
BY THE COMMISSION THAT CERTAIN RAILROAD TARIFFS WERE UNLAWFUL AND THAT
OTHER RATES SHOULD BE PRESCRIBED IN LIEU THEREOF.  COAL TO BELOIT,
WIS., AND NORTHERN ILLINOIS, 263 I.C.C. 179. 

THE COMPLAINTS REQUESTED THAT THE COURT CONVENE A SPECIALLY
CONSTITUTED COURT OF THREE JUDGES, AS REQUIRED BY THE URGENT
DEFICIENCIES ACT OF OCTOBER 22, 1913, 38 STAT. 208, 220, 28 U.S.C. SEC.
47, TO HEAR THE MOTIONS "FOR A TEMPORARY OR INTERLOCUTORY INJUNCTION
AND FOR FINAL HEARING IN THIS PROCEEDING."  CIRCUIT JUDGE EVANS AND
DISTRICT JUDGE IGOE WERE THEN ASSIGNED TO SIT WITH DISTRICT JUDGE
BALTZELL TO HEAR AND DETERMINE THESE APPLICATIONS, AND THE CASES WERE
CONSOLIDATED FOR ALL PURPOSES.  THE APPLICATIONS FOR A TEMPORARY STAY
AND AN INTERLOCUTORY INJUNCTION WERE ASSIGNED FOR HEARING ON JANUARY 3,
1946.  BUT ON THAT DAY, IT APPEARING THAT THE COMMISSION HAD POSTPONED
THE EFFECTIVE DATE OF ITS ORDER TO APRIL 8, 1946, THE COURT ORDERED
THAT "THE HEARING UPON THE PETITIONERS' APPLICATION FOR AN
INTERLOCUTORY INJUNCTION AND TEMPORARY STAY HERETOFORE ASSIGNED AND SET
FOR JANUARY 3, 1946, BE AND THE SAME HEREBY IS, CONTINUED TO THE DAY OF
FINAL HEARING HEREIN AND THAT SAID FINAL HEARING SHALL BE HAD ON MARCH
25, 1946  ...  "  THE COMMISSION MADE A FURTHER POSTPONEMENT OF THE
EFFECTIVE DATE OF ITS ORDER TO JULY 8, 1946, IN ORDER THAT THE CARRIERS
SUBJECT TO THE ORDER MIGHT AVOID THE NECESSITY OF PREPARING AND FILING
NEW TARIFFS PRIOR TO THE TERMINATION OF THE COURT PROCEEDING.  IT ALSO
APPEARED THAT THE ILLNESS OF JUDGE BALTZELL MADE IT IMPOSSIBLE FOR THE
COURT TO CONVENE AS SCHEDULED ON MARCH 25.  AND SO THE COURT REASSIGNED
THE CASE FOR TRIAL ON APRIL 22, WITH JUDGE BALTZELL BEING REPLACED BY
CIRCUIT JUDGE MAJOR. 

ARGUMENT WAS HELD ON APRIL 22 BEFORE CIRCUIT JUDGES EVANS AND MAJOR
AND DISTRICT JUDGE IGOE AT THE "FINAL HEARING UPON THE PLAINTIFFS'
PETITIONS FOR A PERMANENT INJUNCTION."  ON JUNE 5, 1946, FINDINGS OF
FACT AND CONCLUSIONS OF LAW WERE FILED AND ENTERED UNDER THE SIGNATURES
OF JUDGES MAJOR AND IGOE; THE COMMISSION'S ORDER WAS SUSTAINED IN ALL
RESPECTS AND A JUDGMENT WAS ENTERED DISMISSING THE COMPLAINTS.  THE
FOLLOWING NOTATION WAS MADE IN THE MARGIN OF THE FINDINGS OF FACT AND
CONCLUSIONS OF LAW:  "JUDGE EVAN A. EVANS BECAME ILL SUBSEQUENT TO THE
HEARING OF THESE CAUSES AND HE IS AND HAS BEEN UNABLE TO PARTICIPATE IN
A DETERMINATION THEREOF.  THE FINDINGS OF FACT, CONCLUSIONS OF LAW AND
JUDGMENT HAVE THEREFORE BEEN ENTERED BY THE REMAINING JUDGES OF SUCH
COURT." 

THE CASE WAS BROUGHT HERE ON DIRECT APPEAL.  FN1  WE ARE OF THE
OPINION THAT THE DISTRICT COURT'S JUDGMENT WAS VOID, ONLY TWO OF THE
THREE JUDGES HAVING PARTICIPATED IN THE DETERMINATION OF THE CASE.  WE
ACCORDINGLY DO NOT REACH THE ISSUES INVOLVING THE COMMISSION'S
AUTHORITY AND THE MERITS OF ITS ORDER, ISSUES THAT HAVE BEEN ARGUED AT
LENGTH BEFORE US. 

THE APPLICABLE PROVISIONS OF THE URGENT DEFICIENCIES ACT, 38 STAT.
220, 28 U.S.C. SEC. 47, STATE:  " ...  NO INTERLOCUTORY INJUNCTION
SUSPENDING OR RESTRAINING THE ENFORCEMENT, OPERATION, OR EXECUTION OF,
OR SETTING ASIDE, IN WHOLE OR IN PART, ANY ORDER MADE OR ENTERED BY THE
INTERSTATE COMMERCE COMMISSION SHALL BE ISSUED OR GRANTED BY ANY
DISTRICT COURT OF THE UNITED STATES, OR BY ANY JUDGE THEREOF, OR BY ANY
CIRCUIT JUDGE ACTING AS DISTRICT JUDGE, UNLESS THE APPLICATION FOR THE
SAME SHALL BE PRESENTED TO A CIRCUIT OR DISTRICT JUDGE, AND SHALL BE
HEARD AND DETERMINED BY THREE JUDGES, OF WHOM AT LEAST ONE SHALL BE A
CIRCUIT JUDGE, AND UNLESS A MAJORITY OF SAID THREE JUDGES SHALL CONCUR
IN GRANTING SUCH APPLICATION.  WHEN SUCH APPLICATION AS AFORESAID IS
PRESENTED TO A JUDGE, HE SHALL IMMEDIATELY CALL TO HIS ASSISTANCE TO
HEAR AND DETERMINE THE APPLICATION TWO OTHER JUDGES.  ...  PROVIDED,
THAT IN CASES WHERE IRREPARABLE DAMAGE WOULD OTHERWISE ENSUE TO THE
PETITIONER, A MAJORITY OF SAID THREE JUDGES CONCURRING, MAY, ON
HEARING,  ...  ALLOW A TEMPORARY STAY OR SUSPENSION, IN WHOLE OR IN
PART, OF THE OPERATION OF THE ORDER OF THE INTERSTATE COMMERCE
COMMISSION FOR NOT MORE THAN SIXTY DAYS  ...  AND UPON THE FINAL
HEARING OF ANY SUIT BROUGHT TO SUSPEND OR SET ASIDE, IN WHOLE OR IN
PART, ANY ORDER OF SAID COMMISSION THE SAME REQUIREMENT AS TO JUDGES
AND THE SAME PROCEDURE AS TO EXPEDITION AND APPEAL SHALL APPLY .  ...
" 

THE REQUIREMENT THAT THREE JUDGES HEAR AND DETERMINE SUITS TO ENJOIN
OR SET ASIDE INTERSTATE COMMERCE COMMISSION ORDERS HAD ITS ORIGIN IN
THE PROVISIONS OF THE EXPEDITING ACT OF FEBRUARY 11, 1903, 32 STAT.
823.  THAT ACT REQUIRED THREE CIRCUIT JUDGES, OR TWO CIRCUIT JUDGES AND
A DISTRICT JUDGE, TO HEAR CASES BROUGHT BY THE UNITED STATES TO ENFORCE
THE ANTITRUST AND COMMERCE LAWS.  THIS FEATURE WAS THEN EXTENDED BY THE
HEPBURN ACT OF 1906, 34 STAT. 584, 592, TO ALL SUITS BROUGHT TO ENFORCE
OR ENJOIN ANY ORDER OF THE INTERSTATE COMMERCE COMMISSION, "INCLUDING
THE HEARING ON AN APPLICATION FOR A PRELIMINARY INJUNCTION."  THE ACT
OF JUNE 18, 1910, 36 STAT. 539, CREATED THE COMMERCE COURT AND VESTED
IN IT JURISDICTION OVER SUITS TO ENJOIN COMMISSION ORDERS; THAT COURT
WAS COMPOSED OF FIVE JUDGES, FOUR OF THEM CONSTITUTING A QUORUM AND AT
LEAST THREE BEING REQUIRED TO CONCUR IN ALL DECISIONS.  FINALLY, THE
URGENT DEFICIENCIES ACT OF 1913 TRANSFERRED THIS JURISDICTION TO THREE
JUDGE DISTRICT COURTS, AS DETAILED ABOVE.  UNITED STATES V. GRIFFIN,
303 U.S. 226, 232-233. 

THE POLICY OF REQUIRING THE DELIBERATION OF THREE JUDGES IN SUITS TO
ENJOIN THE ENFORCEMENT OF INTERSTATE COMMERCE COMMISSION ORDERS IS THUS
A WELL-ESTABLISHED ONE.  IT IS GROUNDED IN THE LEGISLATIVE DESIRE TO
GUARD AGAINST ILL-CONSIDERED ACTION BY A SINGLE JUDGE IN THE IMPORTANT
AND COMPLEX SITUATIONS FREQUENTLY PRESENTED BY COMMISSION ORDERS.  SUCH
MATTERS ARE DEEMED TO WARRANT THE FULL DELIBERATION WHICH A COURT OF
THREE JUDGES IS LIKELY TO SECURE. 

THIS REQUIREMENT, OF COURSE, IS NECESSARILY TECHNICAL.  IT IS NOT A
BROAD SOCIAL MEASURE TO BE CONSTRUED WITH LIBERALITY.  IT IS A
TECHNICAL RULE OF PROCEDURE TO BE APPLIED AS SUCH.  SEE PHILLIPS V.
UNITED STATES, 312 U.S. 246, 250-251.  WHILE DUE CONSIDERATION MUST BE
GIVEN TO THE STATUTORY POLICY OF EXPEDITING THE DISPOSITION OF
APPLICATIONS TO ENJOIN THE ENFORCEMENT OF COMMISSION ORDERS, THE PLAIN
LANGUAGE OF THE URGENT DEFICIENCIES ACT COMPELS STRICT ADHERENCE TO THE
COMMAND THAT SUCH APPLICATIONS "SHALL BE HEARD AND DETERMINED BY THREE
JUDGES, OF WHOM AT LEAST ONE SHALL BE A CIRCUIT JUDGE."  AND WE MUST
INSIST UPON OBEDIENCE TO THAT LEGISLATIVE WILL EVEN THOUGH THE
DISPOSITION OF SOME APPLICATIONS MAY THEREBY BE DELAYED. 

WHEN THE FRAMERS OF THE URGENT DEFICIENCIES ACT DECLARED THAT THESE
APPLICATIONS "SHALL BE HEARD AND DETERMINED BY THREE JUDGES," WE ASSUME
THAT THEY MEANT EXACTLY WHAT THEY SAID.  THE REQUIREMENT THAT THREE
JUDGES HEAR AND DETERMINE AN APPLICATION MEANS THAT THEY MUST
ADJUDICATE THE ISSUES OF LAW AND FACT WHICH ARE PRESENTED BY THE CASE,
A FUNCTION WHICH IMPLIES THAT THEY MUST WEIGH THE ARGUMENTS AND
TESTIMONY OFFERED BY BOTH SIDES AND VOTE EITHER TO GRANT OR DENY THE
RELIEF SOUGHT BY THE MOVING PARTY.  FN2  IN ADDITION, "COMPLIANCE WITH
THE STATUTE REQUIRES THE ASSENT OF THE THREE JUDGES GIVEN AFTER THE
APPLICATION IS MADE EVIDENCED BY THEIR SIGNATURES OR AN ANNOUNCEMENT IN
OPEN COURT WITH THREE JUDGES SITTING FOLLOWED BY A FORMAL ORDER TESTED
AS THEY DIRECT."  CUMBERLAND TEL. CO. V. PUBLIC SERVICE COMMISSION, 260
U.S. 212, 218.  ALL THREE JUDGES, IN OTHER WORDS, MUST FULLY PERFORM
THE JUDICIAL FUNCTION.  FN3  SEE DOHANY V. ROGERS, 281 U.S. 362, 369
370. 

IT IS SIGNIFICANT THAT THIS ACT MAKES NO PROVISION FOR A QUORUM OF
LESS THAN THREE JUDGES.  TWO JUDGES OF A THREE-JUDGE CIRCUIT COURT OF
APPEALS, ON THE OTHER HAND, ORDINARILY CONSTITUTE A STATUTORY QUORUM
FOR THE HEARING AND DETERMINATION OF CASES.  FN4  28 U.S.C. SEC. 212. 
THE ABSENCE OF SUCH A QUORUM PROVISION AS TO THREE-JUDGE DISTRICT
COURTS IS A STRONG CORROBORATING INDICATION THAT PARTICIPATION BY ALL
THREE JUDGES IS NECESSARY TO RENDER A VALID DECISION.  THE ACT
PROVIDES, IT IS TRUE, THAT A DECISION MAY BE REACHED BY A THREE-JUDGE
COURT IF A "MAJORITY OF SAID THREE JUDGES" CONCUR.  BUT THAT MEANS ONLY
THAT THE DECISION OF THE THREE JUDGES NEED NOT BE UNANIMOUS; IT DOES
NOT IMPLY THAT TWO JUDGES ALONE MAY HEAR AND DETERMINE THE CASE. 

MOREOVER, WE CANNOT SAY THAT THE FAILURE OF THE THIRD JUDGE TO
PARTICIPATE IN THE DETERMINATION OF A CASE, WHERE THE OTHER TWO ARE IN
AGREEMENT AS TO THE RESULT, IS WITHOUT SIGNIFICANCE.  THE DECISION
REACHED BY TWO JUDGES IS NOT NECESSARILY THE ONE WHICH MIGHT HAVE BEEN
REACHED HAD THEY HAD THE BENEFIT OF THE VIEWS AND CONCLUSIONS OF THE
THIRD JUDGE.  AND SHOULD THE LATTER HAVE PUBLICLY INDICATED AN OPINION
DIFFERING FROM THAT OF HIS COLLEAGUES, HIS POSITION MIGHT BE HELPFUL TO
THE LITIGANTS AND TO THIS COURT IF THE CASE WERE APPEALED. 

IT IS READILY APPARENT THAT THIS STATUTORY REQUIREMENT HAS NOT BEEN
MET IN THIS CASE.  WHILE ALL THREE JUDGES OF THE SPECIALLY CONSTITUTED
COURT HEARD THE ORAL ARGUMENT, ONLY TWO OF THEM PARTICIPATED IN THE
DETERMINATION OF THE CASE.  THE FINDINGS OF FACT, THE CONCLUSIONS OF
LAW AND THE JUDGMENT WERE ALL ENTERED WITHOUT THE APPROVAL, CONCURRENCE
OR DISSENT OF THE THIRD JUDGE.  HE THUS MISSED THE VERY ESSENCE OF THE
JUDICIAL FUNCTION IN THIS CASE - THE ACTUAL ADJUDICATION OF THE ISSUES
OF LAW AND FACT.  ALL THAT WE HAVE HERE IS AN ADJUDICATION BY TWO
JUDGES.  BUT UNDER THE STATUTE IT IS NOT ENOUGH THAT THERE BE AN
ADJUDICATION BY TWO JUDGES.  THEY LACK ANY STATUTORY AUTHORITY TO HEAR
AND DETERMINE AN APPLICATION TO ENJOIN THE ENFORCEMENT OF A COMMISSION
ORDER.  ANY ACTION OF THEIRS IN GRANTING OR DENYING SUCH AN APPLICATION
IS AS VOID AS SIMILAR ACTION BY A SINGLE JUDGE.  SEE CUMBERLAND TEL.
CO. V. PUBLIC SERVICE COMMISSION, SUPRA, 218-219; STRATTON V. ST. LOUIS
S.W.R. CO., 282 U.S. 10, 16. 

IT IS SUGGESTED, HOWEVER, THAT THE THREE-JUDGE REQUIREMENT APPLIES
ONLY TO APPLICATIONS FOR INTERLOCUTORY INJUNCTIONS AGAINST THE
ENFORCEMENT OF INTERSTATE COMMERCE COMMISSION ORDERS; AND SINCE THE
DECISION IN THIS CASE WAS ONE DENYING A PERMANENT INJUNCTION, NO
COMPLAINT CAN BE MADE THAT THE DECISION WAS RENDERED BY LESS THAN THREE
JUDGES.  REFERENCE IS MADE IN THIS RESPECT TO SEC. 266 OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 380, WHICH DEALS WITH INJUNCTIONS AGAINST THE
ENFORCEMENT OF STATE STATUTES OR STATE ADMINISTRATIVE ORDERS ON THE
GROUND OF UNCONSTITUTIONALITY OF THE STATUTE INVOLVED.  PRIOR TO 1925,
THAT SECTION INDICATED THAT A THREE-JUDGE COURT WAS NECESSARY ONLY TO
PASS UPON APPLICATIONS FOR INTERLOCUTORY INJUNCTIONS.  A SINGLE JUDGE
HAD JURISDICTION TO HEAR THE CAUSE ON FINAL HEARING AND TO GRANT OR
DENY A PERMANENT INJUNCTION, THEREBY PERMITTING HIM TO RECONSIDER AND
DECIDE QUESTIONS ALREADY PASSED UPON BY THE THREE JUDGES ON THE
APPLICATION FOR AN INTERLOCUTORY INJUNCTION.  TO END THAT ANOMALOUS
SITUATION, AN AMENDMENT WAS ADDED BY THE ACT OF FEBRUARY 13, 1925, 43
STAT. 938, TO THE EFFECT THAT "THE REQUIREMENT RESPECTING THE PRESENCE
OF THREE JUDGES SHALL ALSO APPLY TO THE FINAL HEARING IN SUCH SUIT IN
THE DISTRICT COURT.  ...  "  THE PROBLEM THEN AROSE AS TO WHETHER THE
WORDS "SUCH SUIT" IN THIS AMENDMENT REFERRED ONLY TO A SUIT IN WHICH AN
INTERLOCUTORY INJUNCTION WAS IN FACT SOUGHT OR TO A SUIT IN WHICH IT
MIGHT HAVE BEEN, BUT WAS NOT, REQUESTED.  A SERIES OF DECISIONS BY THIS
COURT HAS MADE IT CLEAR THAT THE FORMER INTERPRETATION IS THE CORRECT
ONE.  A THREE-JUDGE COURT MUST BE CONVENED FOR FINAL HEARINGS ON
APPLICATIONS FOR PERMANENT INJUNCTIONS AGAINST THE ENFORCEMENT OF STATE
STATUTES ONLY WHERE AN INTERLOCUTORY INJUNCTION HAS BEEN SOUGHT AND
PRESSED TO A HEARING.  MOORE V. FIDELITY & DEPOSIT CO., 272 U.S. 317;
SMITH V. WILSON, 273 U.S. 388; PUBLIC SERVICE COMMISSION V. WISCONSIN
TELEPHONE CO., 289 U.S. 67; MCCART V. INDIANAPOLIS WATER CO., 302 U.S.
419.  WHERE AN INTERLOCUTORY INJUNCTION IS NOT SOUGHT AND PRESSED, A
SINGLE JUDGE MAY HEAR AND DETERMINE THE APPLICATION FOR A PERMANENT
INJUNCTION. 

BY ANALOGY, IT IS CLAIMED THAT THE SAME RULE SHOULD OBTAIN UNDER THE
URGENT DEFICIENCIES ACT, THAT A THREE-JUDGE COURT SHOULD BE NECESSARY
FOR FINAL HEARINGS ON APPLICATIONS FOR PERMANENT INJUNCTIONS ONLY WHERE
INTERLOCUTORY INJUNCTIONS HAVE BEEN SOUGHT AND PRESSED.  WHILE IT IS
ADMITTED THAT AN INTERLOCUTORY INJUNCTION WAS SOUGHT IN THIS CASE, THE
ARGUMENT IS MADE THAT THE APPLICATION WAS NOT PRESSED TO A HEARING, THE
NEED FOR SUCH TEMPORARY RELIEF HAVING BEEN ELIMINATED BY THE
POSTPONEMENT OF THE EFFECTIVE DATE OF THE COMMISSION ORDER.  THE WHOLE
EMPHASIS OF THE ACT, LIKE THAT OF SEC. 266 OF THE JUDICIAL CODE, IS
SAID TO BE DIRECTED TOWARD THE PREVENTION OF IMPROVIDENT ISSUANCE OF
INTERLOCUTORY INJUNCTIONS OR RESTRAINING ORDERS.  SINCE THERE WAS NO
SUCH DANGER IN THIS CASE, THE CONCLUSION IS REACHED THAT THE UNDERLYING
REASON FOR THE CONVENING OF A THREE-JUDGE DISTRICT COURT IS ABSENT
HERE.    THE ANSWER TO THIS ARGUMENT IS TO BE FOUND IN THE CLEAR
LANGUAGE OF THE ACT ITSELF.  IT PROVIDES SIMPLY:  "AND UPON THE FINAL
HEARING OF ANY SUIT BROUGHT TO SUSPEND OR SET ASIDE, IN WHOLE OR IN
PART, ANY ORDER OF SAID COMMISSION THE SAME REQUIREMENT AS TO JUDGES
AND THE SAME PROCEDURE AS TO EXPEDITION AND APPEAL SHALL APPLY." 
UNLIKE SEC. 266 OF THE JUDICIAL CODE, THERE IS NO REFERENCE HERE TO
"SUCH SUIT" - TO A SUIT WHERE AN INTERLOCUTORY INJUNCTION IS SOUGHT AND
PRESSED.  RATHER THERE IS AN UNAMBIGUOUS REFERENCE TO THE FINAL HEARING
OF "ANY SUIT" BROUGHT TO ENJOIN THE ENFORCEMENT OF A COMMISSION ORDER. 
THAT CAN ONLY MEAN ANY SUIT SEEKING PERMANENT RELIEF, REGARDLESS OF
WHETHER INTERLOCUTORY RELIEF IS ALSO REQUESTED.  AND SINCE "THE SAME
REQUIREMENT AS TO JUDGES" IS TO APPLY TO THE FINAL HEARING OF ANY SUIT,
THREE JUDGES MUST HEAR AND DETERMINE THE MATTER. 

IN ADDITION, THIS PORTION OF THE URGENT DEFICIENCIES ACT WAS PART OF
THE ORIGINAL ENACTMENT AND WAS NOT ADDED TO MEET A PROBLEM LIKE THAT
WHICH AROSE UNDER SEC. 266 OF THE JUDICIAL CODE.  IT WAS DRAWN AGAINST
A BACKGROUND OF PRIOR STATUTES WHICH PROVIDED FOR INJUNCTIVE RELIEF
AGAINST THE ENFORCEMENT OF COMMISSION ORDERS WITHOUT REGARD TO THE
PRESENCE OF A REQUEST FOR TEMPORARY RELIEF.  THE HEPBURN ACT REQUIRED A
THREE-JUDGE COURT FOR "ALL" SUITS BROUGHT TO ENJOIN A COMMISSION ORDER,
"INCLUDING THE HEARING ON AN APPLICATION FOR A PRELIMINARY INJUNCTION,"
- A CLEAR INDICATION THAT A THREE-JUDGE COURT WAS ALSO NECESSARY WHERE
ONLY PERMANENT RELIEF WAS SOUGHT.  AND THE STATUTE WHICH CREATED THE
COMMERCE COURT, FROM WHICH THE DISTRICT COURTS INHERITED THEIR
JURISDICTION IN THIS INSTANCE, REFERRED TO "CASES" BROUGHT TO ENJOIN OR
SET ASIDE COMMISSION ORDERS, MAKING NO DISTINCTION AS TO THOSE IN WHICH
ONLY PERMANENT RELIEF WAS SOUGHT.  WE CAN ONLY CONCLUDE THAT THE
FRAMERS OF THE URGENT DEFICIENCIES ACT MEANT TO REQUIRE A THREE-JUDGE
COURT IN ANY SUIT BROUGHT TO ENJOIN THE ENFORCEMENT OF A COMMISSION
ORDER, INCLUDING A SUIT WHERE AN INTERLOCUTORY INJUNCTION IS NOT SOUGHT
AND PRESSED TO A HEARING. 

TIME AND AGAIN THIS COURT HAS REFERRED TO THE THREE-JUDGE COURT
REQUIREMENT UNDER THIS ACT WITHOUT MAKING THE DISTINCTION WHICH HAS
BEEN MADE UNDER SEC. 266 OF THE JUDICIAL CODE.  LAMBERT CO. V.
BALTIMORE & OHIO R. CO., 258 U.S. 377, 381-382; BALTIMORE & OHIO R. CO.
V. UNITED STATES, 279 U.S. 781, 784-785; UNITED STATES V. GRIFFIN,
SUPRA, 232-233.  INDEED, WITHOUT PASSING UPON THE PRECISE PROBLEM, THIS
COURT HAS AFFIRMED JUDGMENTS OF THREE-JUDGE DISTRICT COURTS WHICH HAD
GRANTED PERMANENT INJUNCTIONS IN CASES WHERE NO INTERLOCUTORY
INJUNCTIONS HAD BEEN SOUGHT OR PRESSED.  SEE, E.G., UNITED STATES V.
IDAHO, 298 U.S. 105.  AND SEE HUDSON & MANHATTAN R. CO. V. UNITED
STATES, 28 F.SUPP.  137, 140. 

THE LANGUAGE AND BACKGROUND OF THE ACT, WHICH HAVE BEEN AUGMENTED BY
THE CONSISTENT UNDERSTANDING OF THIS COURT,  FN5  THUS COMBINE TO
REQUIRE THE USE OF A THREE-JUDGE DISTRICT COURT IN ALL CASES IN WHICH A
PERMANENT OR INTERLOCUTORY INJUNCTION IS SOUGHT AGAINST THE ENFORCEMENT
OF A COMMISSION ORDER.  IT MATTERS NOT IN A PARTICULAR CASE WHETHER AN
INTERLOCUTORY INJUNCTION IS REQUESTED OR WHETHER, IF SUCH RELIEF IS
ASKED, THE APPLICATION IS PRESSED TO A HEARING.  THIS ACT SEEKS TO
GUARD AGAINST MORE THAN AN IMPROVIDENT ISSUANCE OF INTERLOCUTORY
INJUNCTIONS BY SINGLE JUDGES; IT ALSO SEEKS TO PREVENT SINGLE JUDGES
FROM ISSUING PERMANENT INJUNCTIONS.  FN6  TO THAT END, CONGRESS HAS
REQUIRED THE USE OF A THREE-JUDGE COURT AND WE ARE BOUND TO CARRY OUT
THE LETTER AND THE SPIRIT OF THAT REQUIREMENT.  THAT TWO JUDGES MIGHT,
IN A PARTICULAR INSTANCE, GIVE THE SAME PROTECTION AGAINST SINGLE-JUDGE
ACTION AS THREE JUDGES DOES NOT JUSTIFY IGNORING OR RELAXING THE PLAIN
REQUIREMENT THAT THREE JUDGES HEAR AND DETERMINE ALL APPLICATIONS TO
ENJOIN THE ENFORCEMENT OF COMMISSION ORDERS.  IF SUCH AN AMENDMENT TO
THE ACT IS TO BE MADE, IT MUST BE MADE BY CONGRESS RATHER THAN BY THIS
COURT. 

SINCE THE JUDGMENT ENTERED BY TWO JUDGES IN THIS CASE WAS VOID AND
WITHOUT STATUTORY AUTHORITY, WE HAVE NO ALTERNATIVE BUT TO VACATE THE
JUDGMENT AND DISMISS THE APPEAL.  APPELLANTS WILL BE FREE, OF COURSE,
TO SUGGEST THAT THE DISTRICT COURT BE RECONVENED IN ACCORDANCE WITH THE
ACT SO THAT THREE JUDGES MAY HEAR AND DETERMINE THE APPLICATION TO
ENJOIN THE COMMISSION ORDER IN ISSUE.  SO ORDERED. 

FN1  URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, 38 STAT. 208, 219,
220, 28 U.S.C. SECS. 45 AND 47A; JUDICIAL CODE SEC. 238, AS AMENDED BY
THE ACT OF FEBRUARY 13, 1925, 43 STAT. 936, 938, 28 U.S.C. SEC. 345. 

FN2  IN OHIO V. UNITED STATES, 6 F.SUPP.  386, AFFIRMED, 292 U.S.
498, A CASE UNDER THE URGENT DEFICIENCIES ACT WAS ARGUED BEFORE A COURT
OF THREE JUDGES, ALL OF WHOM PARTICIPATED IN THE DISCUSSIONS LEADING TO
A DETERMINATION OF THE CASE.  ONE OF THE JUDGES DIED BEFORE THE
DECISION WAS ANNOUNCED.  AN OPINION WRITTEN BY THE JUDGE WHO DIED WAS
FOUND AMONG HIS PAPERS AFTER HIS DEATH AND WAS PUBLISHED AS THE OPINION
OF THE COURT, CONCURRED IN BY THE OTHER TWO JUDGES.  THE OPINION HAD
BEEN WRITTEN PURSUANT TO AN ARRANGEMENT MADE AT A PRIOR CONFERENCE OF
THE THREE JUDGES.  THE FINDINGS OF FACT AND CONCLUSIONS OF LAW, WHICH
WERE FILED SOME TIME AFTER THE OPINION, WERE SIGNED ONLY BY THE TWO
SURVIVING JUDGES.  THE MATTER, HOWEVER, WAS NOT RAISED BY THE PARTIES
ON APPEAL AND WAS NOT CONSIDERED OR DECIDED BY THIS COURT.  THE MERE
FACT THAT THE CASE WAS ENTERTAINED BY THIS COURT IS NO BASIS FOR
CONSIDERING IT AS AUTHORITATIVE ON THE JURISDICTIONAL ISSUE, IT BEING
THE FIRM POLICY OF THIS COURT NOT TO RECOGNIZE THE EXERCISE OF
JURISDICTION AS PRECEDENT WHERE THE ISSUE WAS IGNORED.  UNITED STATES
V. MORE, 3 CRANCH 159, 172; SNOW V. UNITED STATES, 118 U.S. 346, 354
355; CROSS V. BURKE, 146 U.S. 82, 87; LOUISVILLE TRUST CO. V. KNOTT,
191 U.S. 225, 236; ARANT V. LANE, 245 U.S. 166, 170. 

CF. FRELLSEN & CO. V. CRANDELL, 217 U.S. 71, WHERE THIS COURT, AFTER
MR. JUSTICE BREWER'S DEATH, ADOPTED AS ITS OPINION ONE PREVIOUSLY
WRITTEN BY HIM. 

FN3  IN JAMES V. CLEMENTS, 217 F. 51, A CASE HAD BEEN ARGUED AND
SUBMITTED TO A THREE-JUDGE CIRCUIT COURT OF APPEALS AND A DECISION
RENDERED BY A DIVIDED VOTE.  A PETITION FOR REHEARING HAD BEEN FILED
AND THE COURT HAD DECIDED THAT THE PRIOR DECISION WAS ERRONEOUS AND
THAT THE OPPOSITE RESULT SHOULD BE ANNOUNCED WITHOUT FURTHER BRIEFS OR
ARGUMENT.  BUT BEFORE AN ORDER TO THAT EFFECT COULD BE PROMULGATED, ONE
OF THE JUDGES DIED.  SINCE THE OTHER TWO JUDGES WERE DIVIDED IN THEIR
VIEWS, THE CASE WAS RESTORED FOR ARGUMENT BEFORE A FULL BENCH OF THREE
JUDGES.  SEE ALSO RYAN V. PENNSYLVANIA PUBLIC UTILITY COMMISSION, 44
F.SUPP.  912, 914. 

FN4  BUT SEE 32 STAT. 823, AS AMENDED BY 58 STAT. 272, 15 U.S.C.
(SUPP. V, 1946) SEC. 29, WHICH PROVIDES THAT THE SENIOR CIRCUIT JUDGE
AND THE TWO CIRCUIT JUDGES NEXT IN ORDER OF SENIORITY SHALL "HEAR AND
DETERMINE" APPEALS FROM DISTRICT COURT JUDGMENTS IN ANTITRUST CASES
WHERE THIS COURT IS UNABLE TO CONSIDER THE APPEALS BECAUSE OF A LACK OF
A QUORUM.  UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416. 

FN5  THE SAME UNDERSTANDING, THAT THE URGENT DEFICIENCIES ACT
REQUIRES THREE JUDGES FOR ALL APPLICATIONS TO ENJOIN COMMISSION ORDERS
WHILE SEC. 266 OF THE JUDICIAL CODE REQUIRES A THREE-JUDGE COURT ONLY
FOR APPLICATIONS FOR INTERLOCUTORY INJUNCTIONS, IS SHOWN IN THE REMARKS
OF MR. JUSTICE VAN DEVANTER AT THE HEARING BEFORE THE SUBCOMMITTEE OF
THE SENATE COMMITTEE ON THE JUDICIARY ON S. 2060 AND S. 2061, 68TH
CONG., 1ST SESS., P. 33(S. 2060 LATER BECAME THE ACT OF FEBRUARY 13,
1925): 

"SECTION 238 AS AMENDED AND REENACTED IN THE BILL WOULD PERMIT CASES
FALLING WITHIN FOUR PARTICULAR CLASSES, AND THOSE ONLY, TO COME FROM
THE DISTRICT COURTS DIRECTLY TO THE SUPREME COURT.  THE FIRST AND
FOURTH CLASSES ARE CONFINED TO ANTITRUST AND INTERSTATE COMMERCE CASES
COVERED BY THE SECOND SECTION OF THE EXPEDITION ACT OF FEBRUARY 11,
1903, AND THE PROVISION IN THE ACT OF OCTOBER 22, 1913, RESPECTING THE
ENFORCEMENT, SUSPENSION, ETC., OF ORDERS OF THE INTERSTATE COMMERCE
COMMISSION.  THESE CASES ARE HEARD IN THE DISTRICT COURT BY THREE
JUDGES, ONE OF WHOM MUST BE A CIRCUIT JUDGE.  THIS AND THE CHARACTER OF
THE CASES MAKE IT SUGGEST THAT THEY SHOULD GO DIRECTLY TO THE SUPREME
COURT RATHER THAN THROUGH THE CIRCUIT COURTS OF APPEALS.  THE THIRD
CLASS IS CONFINED TO CASES WHEREIN THE ENFORCEMENT OF A STATE STATUTE
OR OF AN ORDER OF A STATE BOARD OR COMMISSION IS SUSPENDED BY AN
INTERLOCUTORY INJUNCTION.  APPLICATIONS FOR SUCH INJUNCTIONS ARE HEARD
IN THE DISTRICT COURT BY THREE JUDGES, ONE BEING A CIRCUIT JUDGE. 
THESE INJUNCTIONS NOW GO DIRECTLY TO THE SUPREME COURT FOR REVIEW, AND
THE BILL CONTINUES THAT PROCEDURE.  ...  " 

SEE ALSO MR. JUSTICE VAN DEVANTER'S REMARKS AT HEARING BEFORE HOUSE
COMMITTEE ON THE JUDICIARY ON H.R. 8206, 68TH CONG., 2D SESS., P. 15. 

FN6  SEE ALSO 50 STAT. 752, 28 U.S.C. SEC. 380A, PROVIDING THAT NO
INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE ENFORCEMENT OF,
OR SETTING ASIDE, ANY ACT OF CONGRESS ON THE GROUND OF
UNCONSTITUTIONALITY SHALL BE ISSUED BY A DISTRICT COURT, UNLESS THE
APPLICATION SHALL BE PRESENTED TO A CIRCUIT OR DISTRICT JUDGE AND SHALL
BE HEARD AND DETERMINED BY THREE JUDGES, OF WHOM AT LEAST ONE SHALL BE
A CIRCUIT JUDGE. 

MR. JUSTICE RUTLEDGE DISSENTS. 
..END :



CRANE V. COMMISSIONER, 331 U.S. 1 


NO. 68.  ARGUED DECEMBER 11, 1946.  - DECIDED APRIL 14, 1947.  - 153
F.2D 504, AFFIRMED. 


1.  UNDER SEC. 113(A)(5) OF THE REVENUE ACT OF 1938, THE "UNADJUSTED
BASIS" FOR DETERMINING GAIN OR LOSS ON THE SALE OF PHYSICAL PROPERTY
ACQUIRED BY BEQUEST SUBJECT TO AN UNASSUMED MORTGAGE IS THE VALUE OF
THE PROPERTY UNDIMINISHED BY THE AMOUNT OF THE MORTGAGE.  PP. 5-11. 

THE WORD "PROPERTY," AS USED IN THAT SECTION, MEANS A PHYSICAL THING
WHICH IS A SUBJECT OF OWNERSHIP OR THE OWNER'S LEGAL RIGHTS THEREIN AND
NOT MERELY HIS "EQUITY" AFTER DEDUCTING THE AMOUNT OF MORTGAGES OR
OTHER LIENS.  PP. 5-11. 

2.  UNDER SEC. 113(B)(1)(B) OF THE REVENUE ACT OF 1938, A TAXPAYER
WHO ACQUIRED AN APARTMENT HOUSE BY BEQUEST SUBJECT TO AN UNASSUMED
MORTGAGE EQUAL TO THE VALUE THEREOF, OPERATED IT FOR SEVERAL YEARS, AND
SOLD IT FOR A PRICE SLIGHTLY IN EXCESS OF THE AMOUNT OF THE MORTGAGE,
WAS ENTITLED TO DEDUCTIONS FOR DEPRECIATION ON THE BUILDING; AND THE
"ADJUSTED BASIS" FOR DETERMINING GAIN OR LOSS ON THE SALE IS TO BE
DETERMINED BY DEDUCTING SUCH DEPRECIATION ALLOWANCES FROM THE VALUE OF
THE PROPERTY AT THE TIME OF ACQUISITION.  PP. 11-12. 

3.  UNDER SEC. 111(B) OF THE REVENUE ACT OF 1938, THE "AMOUNT
REALIZED" ON A SALE OF PROPERTY FOR CASH SUBJECT TO AN EXISTING
MORTGAGE IS THE AMOUNT OF THE CASH REALIZED PLUS THE AMOUNT OF THE
MORTGAGE, EVEN THOUGH THE SELLER HAD ACQUIRED THE PROPERTY SUBJECT TO
THE MORTGAGE, WHICH HE NEVER ASSUMED, AND THE BUYER NEITHER ASSUMED NOR
PAID THE MORTGAGE.  PP. 12-14. 

4.  ON AN APPEAL FROM A DECISION OF THE TAX COURT, THE CIRCUIT COURT
OF APPEALS HAD JURISDICTION TO REVIEW DETERMINATIONS BY THE TAX COURT
THAT "PROPERTY" AS USED IN SEC. 113(A) AND RELATED SECTIONS OF THE
REVENUE ACT OF 1938 MEANS "EQUITY," AND THAT THE AMOUNT OF A MORTGAGE
SUBJECT TO WHICH PROPERTY IS SOLD IS NOT THE MEASURE OF A BENEFIT
REALIZED WITHIN THE MEANING OF SEC. 111(B), SINCE THESE DETERMINATIONS
ANNOUNCED RULES OF GENERAL APPLICABILITY ON CLEAR-CUT QUESTIONS OF
LAW.  P. 15. 

5.  AS HERE CONSTRUED, THE REVENUE ACT OF 1938 DOES NOT TAX SOMETHING
WHICH IS NOT "INCOME" WITHIN THE MEANING OF THE SIXTEENTH AMENDMENT. 
PP. 15-16. 

CRANE V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

THE TAX COURT EXPUNGED PART OF A DEFICIENCY DETERMINED BY THE
COMMISSIONER OF INTERNAL REVENUE ON ACCOUNT OF THE INCOME TAX ON A GAIN
REALIZED ON THE SALE OF AN APARTMENT HOUSE WHICH HAD BEEN ACQUIRED BY
THE TAXPAYER BY BEQUEST SUBJECT TO AN UNASSUMED MORTGAGE.  3 T.C. 585. 
THE CIRCUIT COURT OF APPEALS REVERSED.  153 F.2D 504.  THIS COURT
GRANTED CERTIORARI.  328 U.S. 826.  AFFIRMED, P. 16. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS HOW A TAXPAYER WHO ACQUIRES DEPRECIABLE PROPERTY
SUBJECT TO AN UNASSUMED MORTGAGE, HOLDS IT FOR A PERIOD, AND FINALLY
SELLS IT STILL SO ENCUMBERED, MUST COMPUTE HER TAXABLE GAIN. 

PETITIONER WAS THE SOLE BENEFICIARY AND THE EXECUTRIX OF THE WILL OF
HER HUSBAND, WHO DIED JANUARY 11, 1932.  HE THEN OWNED AN APARTMENT
BUILDING AND LOT SUBJECT TO A MORTGAGE,  FN1  WHICH SECURED A PRINCIPAL
DEBT OF $255,000.00 AND INTEREST IN DEFAULT OF $7,042.50.  AS OF THAT
DATE, THE PROPERTY WAS APPRAISED FOR FEDERAL ESTATE TAX PURPOSES AT A
VALUE EXACTLY EQUAL TO THE TOTAL AMOUNT OF THIS ENCUMBRANCE.  SHORTLY
AFTER HER HUSBAND'S DEATH, PETITIONER ENTERED INTO AN AGREEMENT WITH
THE MORTGAGEE WHEREBY SHE WAS TO CONTINUE TO OPERATE THE PROPERTY -
COLLECTING THE RENTS, PAYING FOR NECESSARY REPAIRS, LABOR, AND OTHER
OPERATING EXPENSES, AND RESERVING $200.00 MONTHLY FOR TAXES - AND WAS
TO REMIT THE NET RENTALS TO THE MORTGAGEE.  THIS PLAN WAS FOLLOWED FOR
NEARLY SEVEN YEARS, DURING WHICH PERIOD PETITIONER REPORTED THE GROSS
RENTALS AS INCOME, AND CLAIMED AND WAS ALLOWED DEDUCTIONS FOR TAXES AND
OPERATING EXPENSES PAID ON THE PROPERTY, FOR INTEREST PAID ON THE
MORTGAGE, AND FOR THE PHYSICAL EXHAUSTION OF THE BUILDING.  MEANWHILE,
THE ARREARAGE OF INTEREST INCREASED TO $15,857.71.  ON NOVEMBER 29,
1938, WITH THE MORTGAGEE THREATENING FORECLOSURE, PETITIONER SOLD TO A
THIRD PARTY FOR $3,000.00 CASH, SUBJECT TO THE MORTGAGE, AND PAID
$500.00 EXPENSES OF SALE. 

PETITIONER REPORTED A TAXABLE GAIN OF $1,250.00.  HER THEORY WAS THAT
THE "PROPERTY" WHICH SHE HAD ACQUIRED IN 1932 AND SOLD IN 1938 WAS ONLY
THE EQUITY, OR THE EXCESS IN THE VALUE OF THE APARTMENT BUILDING AND
LOT OVER THE AMOUNT OF THE MORTGAGE.  THIS EQUITY WAS OF ZERO VALUE
WHEN SHE ACQUIRED IT.  NO DEPRECIATION COULD BE TAKEN ON A ZERO VALUE. 
FN2  NEITHER SHE NOR HER VENDEE EVER ASSUMED THE MORTGAGE, SO, WHEN SHE
SOLD THE EQUITY, THE AMOUNT SHE REALIZED ON THE SALE WAS THE NET CASH
RECEIVED, OR $2,500.00.  THIS SUM LESS THE ZERO BASIS CONSTITUTED HER
GAIN, OF WHICH SHE REPORTED HALF AS TAXABLE ON THE ASSUMPTION THAT THE
ENTIRE PROPERTY WAS A "CAPITAL ASSET."  FN3 

THE COMMISSIONER, HOWEVER, DETERMINED THAT PETITIONER REALIZED A NET
TAXABLE GAIN OF $23,767.03.  HIS THEORY WAS THAT THE "PROPERTY"
ACQUIRED AND SOLD WAS NOT THE EQUITY, AS PETITIONER CLAIMED, BUT RATHER
THE PHYSICAL PROPERTY ITSELF, OR THE OWNER'S RIGHTS TO POSSESS, USE,
AND DISPOSE OF IT, UNDIMINISHED BY THE MORTGAGE.  THE ORIGINAL BASIS
THEREOF WAS $262,042.50, ITS APPRAISED VALUE IN 1932.  OF THIS VALUE
$55,000.00 WAS ALLOCABLE TO LAND AND $207,042.50 TO BUILDING.  FN4
DURING THE PERIOD THAT PETITIONER HELD THE PROPERTY, THERE WAS AN
ALLOWABLE DEPRECIATION OF $28,045.10 ON THE BUILDING,  FN5  SO THAT THE
ADJUSTED BASIS OF THE BUILDING AT THE TIME OF SALE WAS $178,997.40. 
THE AMOUNT REALIZED ON THE SALE WAS SAID TO INCLUDE NOT ONLY THE
$2,500.00 NET CASH RECEIPTS, BUT ALSO THE PRINCIPAL AMOUNT  FN6  OF THE
MORTGAGE SUBJECT TO WHICH THE PROPERTY WAS SOLD, BOTH TOTALING
$257,500.00.  THE SELLING PRICE WAS ALLOCABLE IN THE PROPORTION,
$54,471.15 TO THE LAND AND $203,028.85 TO THE BUILDING.  FN7  THE
COMMISSIONER AGREED THAT THE LAND WAS A "CAPITAL ASSET," BUT THOUGHT
THAT THE BUILDING WAS NOT.  FN8  THUS, HE DETERMINED THAT PETITIONER
SUSTAINED A CAPITAL LOSS OF $528.85 ON THE LAND, OF WHICH 50% OR
$264.42 WAS TAKEN INTO ACCOUNT, AND AN ORDINARY GAIN OF $24,031.45 ON
THE BUILDING, OR A NET TAXABLE GAIN AS INDICATED. 

THE TAX COURT AGREED WITH THE COMMISSIONER THAT THE BUILDING WAS NOT A
"CAPITAL ASSET."  IN ALL OTHER RESPECTS IT ADOPTED PETITIONER'S
CONTENTIONS, AND EXPUNGED THE DEFICIENCY.  FN9  PETITIONER DID NOT
APPEAL FROM THE PART OF THE RULING ADVERSE TO HER, AND THESE QUESTIONS
ARE NO LONGER AT ISSUE.  ON THE COMMISSIONER'S APPEAL, THE CIRCUIT
COURT OF APPEALS REVERSED, ONE JUDGE DISSENTING.  FN10  WE GRANTED
CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTIONS RAISED AS TO THE
PROPER CONSTRUCTION OF THE GAIN AND LOSS PROVISIONS OF THE INTERNAL
REVENUE CODE.  FN11 

THE 1938 ACT,  FN12  SEC. 111(A), DEFINES THE GAIN FROM "THE SALE OR
OTHER DISPOSITION OF PROPERTY" AS "THE EXCESS OF THE AMOUNT REALIZED
THEREFROM OVER THE ADJUSTED BASIS PROVIDED IN SECTION 113(B)...."  IT
PROCEEDS, SEC. 111(B), TO DEFINE "THE AMOUNT REALIZED FROM THE SALE OR
OTHER DISPOSITION OF PROPERTY" AS "THE SUM OF ANY MONEY RECEIVED PLUS
THE FAIR MARKET VALUE OF THE PROPERTY (OTHER THAN MONEY) RECEIVED." 
FURTHER, IN SEC. 113(B), THE "ADJUSTED BASIS FOR DETERMINING THE GAIN
OR LOSS FROM THE SALE OR OTHER DISPOSITION OF PROPERTY" IS DECLARED TO
BE "THE BASIS DETERMINED UNDER SUBSECTION (A), ADJUSTED  ...  ((1)(B))
...  FOR EXHAUSTION, WEAR AND TEAR, OBSOLESCENCE, AMORTIZATION  ...  TO
THE EXTENT ALLOWED (BUT NOT LESS THAN THE AMOUNT ALLOWABLE)...."  THE
BASIS UNDER SUBSECTION (A) "IF THE PROPERTY WAS ACQUIRED BY  ...
DEVISE ...  OR BY THE DECEDENT'S ESTATE FROM THE DECEDENT," SEC.
113(A)(5), IS "THE FAIR MARKET VALUE OF SUCH PROPERTY AT THE TIME OF
SUCH ACQUISITION." 

LOGICALLY, THE FIRST STEP UNDER THIS SCHEME IS TO DETERMINE THE
UNADJUSTED BASIS OF THE PROPERTY, UNDER SEC. 113(A)(5), AND THE DISPUTE
IN THIS CASE IS AS TO THE CONSTRUCTION TO BE GIVEN THE TERM
"PROPERTY."  IF "PROPERTY," AS USED IN THAT PROVISION, MEANS THE SAME
THING AS "EQUITY," IT WOULD NECESSARILY FOLLOW THAT THE BASIS OF
PETITIONER'S PROPERTY WAS ZERO, AS SHE CONTENDS.  IF, ON THE CONTRARY,
IT MEANS THE LAND AND BUILDING THEMSELVES, OR THE OWNER'S LEGAL RIGHTS
IN THEM, UNDIMINISHED BY THE MORTGAGE, THE BASIS WAS $262,042.50. 

WE THINK THAT THE REASONS FOR FAVORING ONE OF THE LATTER
CONSTRUCTIONS ARE OF OVERWHELMING WEIGHT.  IN THE FIRST PLACE, THE
WORDS OF STATUTES - INCLUDING REVENUE ACTS - SHOULD BE INTERPRETED
WHERE POSSIBLE IN THEIR ORDINARY, EVERYDAY SENSES.  FN13  THE ONLY
RELEVANT DEFINITIONS OF "PROPERTY" TO BE FOUND IN THE PRINCIPAL
STANDARD DICTIONARIES  FN14  ARE THE TWO FAVORED BY THE COMMISSIONER,
I.E., EITHER THAT "PROPERTY" IS THE PHYSICAL THING WHICH IS A SUBJECT
OF OWNERSHIP, OR THAT IT IS THE AGGREGATE OF THE OWNER'S RIGHTS TO
CONTROL AND DISPOSE OF THAT THING.  "EQUITY" IS NOT GIVEN AS A SYNONYM,
NOR DO EITHER OF THE FOREGOING DEFINITIONS SUGGEST THAT IT COULD BE
CORRECTLY SO USED.  INDEED, "EQUITY" IS DEFINED AS "THE VALUE OF A
PROPERTY  ... ABOVE THE TOTAL OF THE LIENS...."  FN15  THE
CONTRADISTINCTION COULD HARDLY BE MORE POINTED.  STRONG COUNTERVAILING
CONSIDERATIONS WOULD BE REQUIRED TO SUPPORT A CONTENTION THAT CONGRESS,
IN USING THE WORD "PROPERTY," MEANT "EQUITY," OR THAT WE SHOULD IMPUTE
TO IT THE INTENT TO CONVEY THAT MEANING.  FN16 

IN THE SECOND PLACE, THE COMMISSIONER'S POSITION HAS THE APPROVAL OF
THE ADMINISTRATIVE CONSTRUCTION OF SEC. 113(A)(5).  WITH RESPECT TO THE
VALUATION OF PROPERTY UNDER THAT SECTION, REG. 101, ART. 113(A)(5)-1,
PROMULGATED UNDER THE 1938 ACT, PROVIDED THAT "THE VALUE OF PROPERTY AS
OF THE DATE OF THE DEATH OF THE DECEDENT AS APPRAISED FOR THE PURPOSE
OF THE FEDERAL ESTATE TAX ...  SHALL BE DEEMED TO BE ITS FAIR MARKET
VALUE...."  THE LAND AND BUILDING HERE INVOLVED WERE SO APPRAISED IN
1932, AND THEIR APPRAISED VALUE - $262,042.50 - WAS REPORTED BY
PETITIONER AS PART OF THE GROSS ESTATE.  THIS WAS IN ACCORDANCE WITH
THE ESTATE TAX LAW  FN17  AND REGULATIONS,  FN18 WHICH HAD ALWAYS
REQUIRED THAT THE VALUE OF DECEDENT'S PROPERTY, UNDIMINISHED BY LIENS,
BE SO APPRAISED AND RETURNED, AND THAT MORTGAGES BE SEPARATELY DEDUCTED
IN COMPUTING THE NET ESTATE.  FN19  AS THE QUOTED PROVISION OF THE
REGULATIONS HAS BEEN IN EFFECT SINCE 1918,  FN20  AND AS THE RELEVANT
STATUTORY PROVISION HAS BEEN REPEATEDLY REENACTED SINCE THEN IN
SUBSTANTIALLY THE SAME FORM,  FN21  THE FORMER MAY ITSELF NOW BE
CONSIDERED TO HAVE THE FORCE OF LAW.  FN22 

MOREOVER, IN THE MANY INSTANCES IN OTHER PARTS OF THE ACT IN WHICH
CONGRESS HAS USED THE WORD "PROPERTY," OR EXPRESSED THE IDEA OF
"PROPERTY" OR "EQUITY," WE FIND NO INSTANCES OF A MISUSE OF EITHER WORD
OR OF A CONFUSION OF THE IDEAS.  FN23  IN SOME PARTS OF THE ACT OTHER
THAN THE GAIN AND LOSS SECTIONS, WE FIND "PROPERTY" WHERE IT IS
UNMISTAKABLY USED IN ITS ORDINARY SENSE.  FN24 ON THE OTHER HAND, WHERE
EITHER CONGRESS OR THE TREASURY INTENDED TO CONVEY THE MEANING OF
"EQUITY," IT DID SO BY THE USE OF APPROPRIATE LANGUAGE.  FN25 

A FURTHER REASON WHY THE WORD "PROPERTY" IN SEC. 113(A) SHOULD NOT BE
CONSTRUED TO MEAN "EQUITY" IS THE BEARING SUCH CONSTRUCTION WOULD HAVE
ON THE ALLOWANCE OF DEDUCTIONS FOR DEPRECIATION AND ON THE COLLATERAL
ADJUSTMENTS OF BASIS. 

ALLOWANCE FOR THE EXHAUSTION, WEAR AND TEAR OF PROPERTY...."  SECTIONS
23(N) AND 114(A) DECLARE THAT THE "BASIS UPON WHICH EXHAUSTION, WEAR
AND TEAR  ...  ARE TO BE ALLOWED" IS THE BASIS "PROVIDED IN SECTION
113(B) FOR THE PURPOSE OF DETERMINING THE GAIN UPON THE SALE" OF THE
PROPERTY, WHICH IS THE SEC. 113(A) BASIS "ADJUSTED  ...  FOR
EXHAUSTION, WEAR AND TEAR  ...  TO THE EXTENT ALLOWED (BUT NOT LESS
THAN THE AMOUNT ALLOWABLE)...." 

UNDER THESE PROVISIONS, IF THE MORTGAGOR'S EQUITY WERE THE SEC.
113(A) BASIS, IT WOULD ALSO BE THE ORIGINAL BASIS FROM WHICH
DEPRECIATION ALLOWANCES ARE DEDUCTED.  IF IT IS, AND IF THE AMOUNT OF
THE ANNUAL ALLOWANCES WERE TO BE COMPUTED ON THAT VALUE, AS WOULD THEN
SEEM TO BE REQUIRED, FN26  THEY WILL REPRESENT ONLY A FRACTION OF THE
COST OF THE CORRESPONDING PHYSICAL EXHAUSTION, AND ANY RECOUPMENT BY
THE MORTGAGOR OF THE REMAINDER OF THAT COST CAN BE EFFECTED ONLY BY THE
REDUCTION OF HIS TAXABLE GAIN IN THE YEAR OF SALE.  FN27  IF, HOWEVER,
THE AMOUNT OF THE ANNUAL ALLOWANCES WERE TO BE COMPUTED ON THE VALUE OF
THE PROPERTY, AND THEN DEDUCTED FROM AN EQUITY BASIS, WE WOULD IN SOME
INSTANCES HAVE TO ACCEPT DEDUCTIONS FROM A MINUS BASIS OR DENY
DEDUCTIONS ALTOGETHER.  FN28  THE COMMISSIONER ALSO ARGUES THAT TAKING
THE MORTGAGOR'S EQUITY AS THE SEC. 113(A) BASIS WOULD REQUIRE THE BASIS
TO BE CHANGED WITH EACH PAYMENT ON THE MORTGAGE,  FN29 AND THAT THE
ATTENDANT PROBLEM OF REPEATEDLY RECOMPUTING BASIS AND ANNUAL ALLOWANCES
WOULD BE A TREMENDOUS ACCOUNTING BURDEN ON BOTH THE COMMISSIONER AND
THE TAXPAYER.  MOREOVER, THE MORTGAGOR WOULD ACQUIRE CONTROL OVER THE
TIMING OF HIS DEPRECIATION ALLOWANCES. 

THUS IT APPEARS THAT THE APPLICABLE PROVISIONS OF THE ACT EXPRESSLY
PRECLUDE AN EQUITY BASIS, AND THE USE OF IT IS CONTRARY TO CERTAIN
IMPLICIT PRINCIPLES OF INCOME TAX DEPRECIATION, AND ENTAILS VERY GREAT
ADMINISTRATIVE DIFFICULTIES.  FN30  IT MAY BE ADDED THAT THE TREASURY
HAS NEVER FURNISHED A GUIDE THROUGH THE MAZE OF PROBLEMS THAT ARISE IN
CONNECTION WITH DEPRECIATING AN EQUITY BASIS, BUT, ON THE CONTRARY, HAS
CONSISTENTLY PERMITTED THE AMOUNT OF DEPRECIATION ALLOWANCES TO BE
COMPUTED ON THE FULL VALUE OF THE PROPERTY, AND SUBTRACTED FROM IT AS A
BASIS.  SURELY, CONGRESS' LONG-CONTINUED ACCEPTANCE OF THIS SITUATION
GIVES IT FULL LEGISLATIVE ENDORSEMENT.  FN31 

WE CONCLUDE THAT THE PROPER BASIS UNDER SEC. 113(A)(5) IS THE VALUE
OF THE PROPERTY, UNDIMINISHED BY MORTGAGES THEREON, AND THAT THE
CORRECT BASIS HERE WAS $262,042.50.  THE NEXT STEP IS TO ASCERTAIN WHAT
ADJUSTMENTS ARE REQUIRED UNDER SEC. 113(B).  AS THE DEPRECIATION RATE
WAS STIPULATED, THE ONLY QUESTION AT THIS POINT IS WHETHER THE
COMMISSIONER WAS WARRANTED IN MAKING ANY DEPRECIATION ADJUSTMENTS
WHATSOEVER. 

THE PROPERTY SHALL IN ALL CASES BE MADE  ...  FOR EXHAUSTION, WEAR AND
TEAR  ...  TO THE EXTENT ALLOWED (BUT NOT LESS THAN THE AMOUNT
ALLOWABLE)  ...."  THE TAX COURT FOUND ON ADEQUATE EVIDENCE THAT THE
APARTMENT HOUSE WAS PROPERTY OF A KIND SUBJECT TO PHYSICAL EXHAUSTION,
THAT IT WAS USED IN TAXPAYER'S TRADE OR BUSINESS, AND CONSEQUENTLY THAT
THE TAXPAYER WOULD HAVE BEEN ENTITLED TO A DEPRECIATION ALLOWANCE UNDER
SEC. 23(1), EXCEPT THAT, IN THE OPINION OF THAT COURT, THE BASIS OF THE
PROPERTY WAS ZERO, AND IT WAS THOUGHT THAT DEPRECIATION COULD NOT BE
TAKEN ON A ZERO BASIS.  AS WE HAVE JUST DECIDED THAT THE CORRECT BASIS
OF THE PROPERTY WAS NOT ZERO, BUT $262,042.50, WE AVOID THIS
DIFFICULTY, AND CONCLUDE THAT AN ADJUSTMENT SHOULD BE MADE AS THE
COMMISSIONER DETERMINED. 

PETITIONER URGES TO THE CONTRARY THAT SHE WAS NOT ENTITLED TO
DEPRECIATION DEDUCTIONS, WHATEVER THE BASIS OF THE PROPERTY, BECAUSE
THE LAW ALLOWS THEM ONLY TO ONE WHO ACTUALLY BEARS THE CAPITAL LOSS,
FN32  AND HERE THE LOSS WAS NOT HERS BUT THE MORTGAGEE'S.  WE DO NOT
SEE, HOWEVER, THAT SHE HAS ESTABLISHED HER FACTUAL PREMISE.  THERE WAS
NO FINDING OF THE TAX COURT TO THAT EFFECT, NOR TO THE EFFECT THAT THE
VALUE OF THE PROPERTY WAS EVER LESS THAN THE AMOUNT OF THE LIEN.  NOR
WAS THERE EVIDENCE IN THE RECORD, OR ANY INDICATION THAT PETITIONER
COULD PRODUCE EVIDENCE, THAT THIS WAS SO.  THE FACTS THAT THE VALUE OF
THE PROPERTY WAS ONLY EQUAL TO THE LIEN IN 1932 AND THAT DURING THE
NEXT SIX AND ONE-HALF YEARS THE PHYSICAL CONDITION OF THE BUILDING
DETERIORATED AND THE AMOUNT OF THE LIEN INCREASED, ARE ENTIRELY
INCONCLUSIVE, PARTICULARLY IN THE LIGHT OF THE BUYER'S WILLINGNESS IN
1938 TO TAKE SUBJECT TO THE INCREASED LIEN AND PAY A SUBSTANTIAL AMOUNT
OF CASH TO BOOT.  WHATEVER MAY BE THE RULE AS TO ALLOWING DEPRECIATION
TO A MORTGAGOR ON PROPERTY IN HIS POSSESSION WHICH IS SUBJECT TO AN
UNASSUMED MORTGAGE AND CLEARLY WORTH LESS THAN THE LIEN, WE ARE NOT
FACED WITH THAT PROBLEM AND SEE NO REASON TO DECIDE IT NOW. 

AT LAST WE COME TO THE PROBLEM OF DETERMINING THE "AMOUNT REALIZED"
ON THE 1938 SALE.  SECTION 111(B), IT WILL BE RECALLED, DEFINES THE
"AMOUNT REALIZED" FROM "THE SALE  ...  OF PROPERTY" AS "THE SUM OF ANY
MONEY RECEIVED PLUS THE FAIR MARKET VALUE OF THE PROPERTY (OTHER THAN
MONEY) RECEIVED," AND SEC. 111(A) DEFINES THE GAIN ON "THE SALE  ...
OF PROPERTY" AS THE EXCESS OF THE AMOUNT REALIZED OVER THE BASIS. 
QUITE OBVIOUSLY, THE WORD "PROPERTY," USED HERE WITH REFERENCE TO A
SALE, MUST MEAN "PROPERTY" IN THE SAME ORDINARY SENSE INTENDED BY THE
USE OF THE WORD WITH REFERENCE TO ACQUISITION AND DEPRECIATION IN SEC.
113, BOTH FOR CERTAIN OF THE REASONS STATED HERETOFORE IN DISCUSSING
ITS MEANING IN SEC. 113, AND ALSO BECAUSE THE FUNCTIONAL RELATION OF
THE TWO SECTIONS REQUIRES THAT THE WORD MEAN THE SAME IN ONE SECTION
THAT IT DOES IN THE OTHER.  IF THE "PROPERTY" TO BE VALUED ON THE DATE
OF ACQUISITION IS THE PROPERTY FREE OF LIENS, THE "PROPERTY" TO BE
PRICED ON A SUBSEQUENT SALE MUST BE THE SAME THING.  FN33 

STARTING FROM THIS POINT, WE COULD NOT ACCEPT PETITIONER'S CONTENTION
THAT THE $2,500.00 NET CASH WAS ALL SHE REALIZED ON THE SALE EXCEPT ON
THE ABSURDITY THAT SHE SOLD A QUARTER-OF-A-MILLION DOLLAR PROPERTY FOR
ROUGHLY ONE PER CENT OF ITS VALUE, AND TOOK A 99 PER CENT LOSS. 
ACTUALLY, PETITIONER DOES NOT URGE THIS.  SHE ARGUES, CONVERSELY, THAT
BECAUSE ONLY $2,500.00 WAS REALIZED ON THE SALE, THE "PROPERTY" SOLD
MUST HAVE BEEN THE EQUITY ONLY, AND THAT CONSEQUENTLY WE ARE FORCED TO
ACCEPT HER CONTENTION AS TO THE MEANING OF "PROPERTY" IN SEC. 113.  WE
ADHERE, HOWEVER, TO WHAT WE HAVE ALREADY SAID ON THE MEANING OF
"PROPERTY," AND WE FIND THAT THE ABSURDITY IS AVOIDED BY OUR CONCLUSION
THAT THE AMOUNT OF THE MORTGAGE IS PROPERLY INCLUDED IN THE "AMOUNT
REALIZED" ON THE SALE. 

PETITIONER CONCEDES THAT IF SHE HAD BEEN PERSONALLY LIABLE ON THE
MORTGAGE AND THE PURCHASER HAD EITHER PAID OR ASSUMED IT, THE AMOUNT SO
PAID OR ASSUMED WOULD BE CONSIDERED A PART OF THE "AMOUNT REALIZED"
WITHIN THE MEANING OF SEC. 111(B).  FN34  THE CASES SO DECIDING HAVE
ALREADY REPUDIATED THE NOTION THAT THERE MUST BE AN ACTUAL RECEIPT BY
THE SELLER HIMSELF OF "MONEY" OR "OTHER PROPERTY," IN THEIR NARROWEST
SENSES.  IT WAS THOUGHT TO BE DECISIVE THAT ONE SECTION OF THE ACT MUST
BE CONSTRUED SO AS NOT TO DEFEAT THE INTENTION OF ANOTHER OR TO
FRUSTRATE THE ACT AS A WHOLE, FN35  AND THAT THE TAXPAYER WAS THE
"BENEFICIARY" OF THE PAYMENT IN "AS REAL AND SUBSTANTIAL (A SENSE) AS
IF THE MONEY HAD BEEN PAID IT AND THEN PAID OVER BY IT TO ITS
CREDITORS."  FN36 

BOTH THESE POINTS APPLY TO THIS CASE.  THE FIRST HAS BEEN MENTIONED
ALREADY.  AS FOR THE SECOND, WE THINK THAT A MORTGAGOR, NOT PERSONALLY
LIABLE ON THE DEBT, WHO SELLS THE PROPERTY SUBJECT TO THE MORTGAGE AND
FOR ADDITIONAL CONSIDERATION, REALIZES A BENEFIT IN THE AMOUNT OF THE
MORTGAGE AS WELL AS THE BOOT.  FN37  IF A PURCHASER PAYS BOOT, IT IS
IMMATERIAL AS TO OUR PROBLEM WHETHER THE MORTGAGOR IS ALSO TO RECEIVE
MONEY FROM THE PURCHASER TO DISCHARGE THE MORTGAGE PRIOR TO SALE, OR
WHETHER HE IS MERELY TO TRANSFER SUBJECT TO THE MORTGAGE - IT MAY MAKE
A DIFFERENCE TO THE PURCHASER AND TO THE MORTGAGEE, BUT NOT TO THE
MORTGAGOR.  OR PUT IN ANOTHER WAY, WE ARE NO MORE CONCERNED WITH
WHETHER THE MORTGAGOR IS, STRICTLY SPEAKING, A DEBTOR ON THE MORTGAGE,
THAN WE ARE WITH WHETHER THE BENEFIT TO HIM IS, STRICTLY SPEAKING, A
RECEIPT OF MONEY OR PROPERTY.  WE ARE RATHER CONCERNED WITH THE REALITY
THAT AN OWNER OF PROPERTY, MORTGAGED AT A FIGURE LESS THAN THAT AT
WHICH THE PROPERTY WILL SELL, MUST AND WILL TREAT THE CONDITIONS OF THE
MORTGAGE EXACTLY AS IF THEY WERE HIS PERSONAL OBLIGATIONS.  FN38  IF HE
TRANSFERS SUBJECT TO THE MORTGAGE, THE BENEFIT TO HIM IS AS REAL AND
SUBSTANTIAL AS IF THE MORTGAGE WERE DISCHARGED, OR AS IF A PERSONAL
DEBT IN AN EQUAL AMOUNT HAD BEEN ASSUMED BY ANOTHER. 

THEREFORE WE CONCLUDE THAT THE COMMISSIONER WAS RIGHT IN DETERMINING
THAT PETITIONER REALIZED $257,500.00 ON THE SALE OF THIS PROPERTY. 

THE TAX COURT'S CONTRARY DETERMINATIONS, THAT "PROPERTY," AS USED IN
SEC. 113(A) AND RELATED SECTIONS, MEANS "EQUITY," AND THAT THE AMOUNT
OF A MORTGAGE SUBJECT TO WHICH PROPERTY IS SOLD IS NOT THE MEASURE OF A
BENEFIT REALIZED, WITHIN THE MEANING OF SEC. 111(B), ANNOUNCED RULES OF
GENERAL APPLICABILITY ON CLEAR-CUT QUESTIONS OF LAW.  FN39  THE CIRCUIT
COURT OF APPEALS THEREFORE HAD JURISDICTION TO REVIEW THEM.  FN40 

PETITIONER CONTENDS THAT THE RESULT WE HAVE REACHED TAXES HER ON WHAT
IS NOT INCOME WITHIN THE MEANING OF THE SIXTEENTH AMENDMENT.  IF THIS
IS BECAUSE ONLY THE DIRECT RECEIPT OF CASH IS THOUGHT TO BE INCOME IN
THE CONSTITUTIONAL SENSE, HER CONTENTION IS WHOLLY WITHOUT MERIT.  FN41
IF IT IS BECAUSE THE ENTIRE TRANSACTION IS THOUGHT TO HAVE BEEN "BY
ALL DICTATES OF COMMON SENSE  ...  A RUINOUS DISASTER," AS IT WAS
TERMED IN HER BRIEF, WE DISAGREE WITH HER PREMISE.  SHE WAS ENTITLED TO
DEPRECIATION DEDUCTIONS FOR A PERIOD OF NEARLY SEVEN YEARS, AND SHE
ACTUALLY TOOK THEM IN ALMOST THE ALLOWABLE AMOUNT.  THE CRUX OF THIS
CASE, REALLY, IS WHETHER THE LAW PERMITS HER TO EXCLUDE ALLOWABLE
DEDUCTIONS FROM CONSIDERATION IN COMPUTING GAIN.  FN42  WE HAVE ALREADY
SHOWED THAT, IF IT DOES, THE TAXPAYER CAN ENJOY A DOUBLE DEDUCTION, IN
EFFECT, ON THE SAME LOSS OF ASSETS.  THE SIXTEENTH AMENDMENT DOES NOT
REQUIRE THAT RESULT ANY MORE THAN DOES THE ACT ITSELF.  AFFIRMED. 

FN1  THE RECORD DOES NOT SHOW WHETHER HE WAS PERSONALLY LIABLE FOR
THE DEBT. 

FN2  THIS POSITION IS, OF COURSE, INCONSISTENT WITH HER PRACTICE IN
CLAIMING SUCH DEDUCTIONS IN EACH OF THE YEARS THE PROPERTY WAS HELD. 
THE DEDUCTIONS SO CLAIMED AND ALLOWED BY THE COMMISSIONER WERE IN THE
TOTAL AMOUNT OF $25,500.00. 

FN3  SEE SEC. 117(A), (B), REVENUE ACT OF 1938, C. 289, 52 STAT.
447.  UNDER THIS PROVISION ONLY 50% OF THE GAIN REALIZED ON THE SALE OF
A "CAPITAL ASSET" NEED BE TAKEN INTO ACCOUNT, IF THE PROPERTY HAD BEEN
HELD MORE THAN TWO YEARS. 

FN4  THE PARTIES STIPULATED AS TO THE RELATIVE PARTS OF THE 1932
APPRAISED VALUE AND OF THE 1938 SALES PRICE WHICH WERE ALLOCABLE TO
LAND AND BUILDING. 

FN5  THE PARTIES STIPULATED THAT THE RATE OF DEPRECIATION APPLICABLE
TO THE BUILDING WAS 2% PER ANNUM. 

FN6  THE COMMISSIONER EXPLAINS THAT ONLY THE PRINCIPAL AMOUNT, RATHER
THAN THE TOTAL PRESENT DEBT SECURED BY THE MORTGAGE, WAS DEEMED TO BE A
MEASURE OF THE AMOUNT REALIZED, BECAUSE THE DIFFERENCE WAS ATTRIBUTABLE
TO INTEREST DUE, A DEDUCTIBLE ITEM. 

FN7  SEE SUPRA, NOTE 4. 

FN8  SEE SEC. 117(A)(1), REVENUE ACT OF 1938, SUPRA. 

FN9  3 T.C. 585.  THE COURT HELD THAT THE BUILDING WAS NOT A "CAPITAL
ASSET" WITHIN THE MEANING OF SEC. 117(A) AND THAT THE ENTIRE GAIN ON
THE BUILDING HAD TO BE TAKEN INTO ACCOUNT UNDER SEC. 117(B), BECAUSE IT
FOUND THAT THE BUILDING WAS OF A CHARACTER SUBJECT TO PHYSICAL
EXHAUSTION AND THAT PETITIONER HAD USED IT IN HER TRADE OR BUSINESS. 

BUT BECAUSE THE COURT ACCEPTED PETITIONER'S THEORY THAT THE ENTIRE
PROPERTY HAD A ZERO BASIS, IT HELD THAT SHE WAS NOT ENTITLED TO THE
1938 DEPRECIATION DEDUCTION ON THE BUILDING WHICH SHE HAD
INCONSISTENTLY CLAIMED. 

FOR THESE REASONS, IT DID NOT EXPUNGE THE DEFICIENCY IN ITS
ENTIRETY. 

FN10  153 F.2D 504. 

FN11  328 U.S. 826. 

FN12  ALL SUBSEQUENT REFERENCES TO A REVENUE ACT ARE TO THIS ACT
UNLESS OTHERWISE INDICATED.  THE RELEVANT PARTS OF THE GAIN AND LOSS
PROVISIONS OF THE ACT AND CODE ARE IDENTICAL. 

FN13  OLD COLONY R. CO. V. COMMISSIONER, 284 U.S. 552, 560. 

FN14  SEE WEBSTER'S NEW INTERNATIONAL DICTIONARY, UNABRIDGED, 2D ED.;
FUNK & WAGNALLS' NEW STANDARD DICTIONARY; OXFORD ENGLISH DICTIONARY. 

FN15  SEE WEBSTER'S NEW INTERNATIONAL DICTIONARY, SUPRA. 

FN16  CROOKS V. HARRELSON, 282 U.S. 55, 59. 

FN17  SEE SECS. 202 AND 203(A)(1), REVENUE ACT OF 1916; SECS. 402 AND
403(A)(1), REVENUE ACTS OF 1918 AND 1921; SECS. 302, 303(A)(1), REVENUE
ACTS OF 1924 AND 1926; SEC. 805, REVENUE ACT OF 1932. 

FN18  SEE REG. 37, ARTS. 13, 14, AND 47; REG. 63, ARTS. 12, 13, AND
41; REG. 68, ARTS. 11, 13, AND 38; REG. 70, ARTS. 11, 13, AND 38; REG.
80, ARTS. 11, 13, AND 38. 

FN19  SEE CITY BANK FARMERS' TRUST CO. V. BOWERS, 68 F.2D 909, CERT.
DENIED, 292 U.S. 644; RODIEK V. HELVERING, 87 F.2D 328; ADRIANCE V.
HIGGINS, 113 F.2D 1013. 

FN20  SEE ALSO REG. 45, ART. 1562; REG. 62, ART. 1563; REG. 65, ART.
1594; REG. 69, ART. 1594; REG. 74, ART. 596; REG. 77, ART. 596; REG.
86, ART. 113(A)(5)-1(C); REG. 94, ART. 113(A)(5)-1(C); REG. 103, SEC.
19.113(A)(5)-1(C); REG. 111, SEC. 29.113(A)(5)-1(C). 

FN21  SEC. 202(A)(3), REVENUE ACT OF 1921; SEC. 204(A)(5), REVENUE
ACT OF 1924; SEC. 204(A)(5), REVENUE ACT OF 1926; SEC. 113(A)(5),
REVENUE ACT OF 1928; SEC. 113(A)(5), REVENUE ACT OF 1932; SEC.
113(A)(5), REVENUE ACT OF 1934; SEC. 113(A)(5), REVENUE ACT OF 1936;
SEC. 113(A)(5), REVENUE ACT OF 1938; SEC. 113(A)(5), INTERNAL REVENUE
CODE. 

FN22  HELVERING V. REYNOLDS CO., 306 U.S. 110, 114. 

FN23  CF. HELVERING V. STOCKHOLMS BANK, 293 U.S. 84, 87. 

FN24  SEC. 23(A)(1) PERMITS THE DEDUCTION FROM GROSS INCOME OF
"RENTALS  ...  REQUIRED TO BE MADE AS A CONDITION TO THE CONTINUED USE
...  FOR PURPOSES OF THE TRADE OR BUSINESS, OF PROPERTY ...  IN WHICH
HE (THE TAXPAYER) HAS NO EQUITY." 

SEC. 23(L) PERMITS THE DEDUCTION FROM GROSS INCOME OF "A REASONABLE
ALLOWANCE FOR THE EXHAUSTION, WEAR AND TEAR OF PROPERTY USED IN THE
TRADE OR BUSINESS  ...." 

SEE ALSO SEC. 303(A)(1), REVENUE ACT OF 1926, C. 27, 44 STAT. 9; SEC.
805, REVENUE ACT OF 1932, C. 209, 47 STAT. 280. 

FN25  SEE SEC. 23(A)(1), SUPRA, NOTE 24; SEC. 805, REVENUE ACT OF
1932, SUPRA, NOTE 24; SEC. 3482, I.R.C.; REG. 105, SEC. 81.38.  THIS
PROVISION OF THE REGULATIONS, FIRST APPEARING IN 1937, T.D. 4729, 1937
1 CUM. BULL.  284, 289, PERMITTED ESTATES WHICH WERE NOT LIABLE ON
MORTGAGES APPLICABLE TO CERTAIN OF DECEDENT'S PROPERTY TO RETURN "ONLY
THE VALUE OF THE EQUITY OF REDEMPTION (OR VALUE OF THE PROPERTY, LESS
THE INDEBTEDNESS)  ...." 

FN26  SECS. 23(N) AND 114(A), IN DEFINING THE "BASIS UPON WHICH"
DEPRECIATION IS "TO BE ALLOWED," DO NOT DISTINGUISH BETWEEN BASIS AS
THE MINUEND FROM WHICH THE ALLOWANCES ARE TO BE DEDUCTED, AND AS THE
DIVIDEND FROM WHICH THE AMOUNT OF THE ALLOWANCE IS TO BE COMPUTED.  THE
REGULATIONS INDICATE THAT THE BASIS OF PROPERTY IS THE SAME FOR BOTH
PURPOSES.  REG. 101, ART. 23(L)-4, 5. 

FN27  THIS IS CONTRARY TO TREASURY PRACTICE, AND TO REG. 101, ART.
23(L)-5, WHICH PROVIDES IN PART: 

"THE CAPITAL SUM TO BE RECOVERED SHALL BE CHARGED OFF OVER THE USEFUL
LIFE OF THE PROPERTY, EITHER IN EQUAL ANNUAL INSTALLMENTS OR IN
ACCORDANCE WITH ANY OTHER RECOGNIZED TRADE PRACTICE, SUCH AS AN
APPORTIONMENT OF THE CAPITAL SUM OVER UNITS OF PRODUCTION." 

SEE DETROIT EDISON CO. V. COMMISSIONER, 319 U.S. 98, 101. 

FN28  SO LONG AS THE MORTGAGOR REMAINS IN POSSESSION, THE MORTGAGEE
CAN NOT TAKE DEPRECIATION DEDUCTIONS, EVEN IF HE IS THE ONE WHO
ACTUALLY SUSTAINS THE CAPITAL LOSS, AS SEC. 23(L) ALLOWS THEM ONLY ON
PROPERTY "USED IN THE TRADE OR BUSINESS." 

FN29  SEC. 113(B)(1)(A) REQUIRES ADJUSTMENT OF BASIS "FOR
EXPENDITURES  ...  PROPERLY CHARGEABLE TO CAPITAL ACCOUNT  ...." 

FN30  OBVIOUSLY WE ARE NOT CONSIDERING A SITUATION IN WHICH A
TAXPAYER HAS ACQUIRED AND SOLD AN EQUITY OF REDEMPTION ONLY, I.E., A
RIGHT TO REDEEM THE PROPERTY WITHOUT A RIGHT TO PRESENT POSSESSION.  IN
THAT SITUATION, THE RIGHT TO REDEEM WOULD ITSELF BE THE AGGREGATE OF
THE TAXPAYER'S RIGHTS AND WOULD UNDOUBTEDLY CONSTITUTE "PROPERTY"
WITHIN THE MEANING OF SEC. 113(A).  NO DEPRECIATION PROBLEMS WOULD
ARISE.  SEE NOTE 28. 

FN31  SEE NOTE 22. 

FN32  SEE HELVERING V. LAZARUS & CO., 308 U.S. 252; DUFFY V. CENTRAL
R. CO., 268 U.S. 55, 64. 

FN33  SEE MAGUIRE V. COMMISSIONER, 313 U.S. 1, 8. 

WE ARE NOT TROUBLED BY PETITIONER'S ARGUMENT THAT HER CONTRACT OF
SALE EXPRESSLY PROVIDED FOR THE CONVEYANCE OF THE EQUITY ONLY.  SHE
ACTUALLY CONVEYED TITLE TO THE PROPERTY, AND THE BUYER TOOK THE SAME
PROPERTY THAT PETITIONER HAD ACQUIRED IN 1932 AND USED IN HER TRADE OR
BUSINESS UNTIL ITS SALE. 

FN34  UNITED STATES V. HENDLER, 303 U.S. 564; BRONS HOTELS, INC., 34
B.T.A. 376; WALTER F. HAASS, 37 B.T.A. 948.  SEE DOUGLAS V. WILLCUTS,
296 U.S. 1, 8. 

FN35  SEE BRONS HOTELS, INC., SUPRA, 34 B.T.A. AT 381. 

FN36  SEE UNITED STATES V. HENDLER, SUPRA, 303 U.S. AT 566. 

FN37  OBVIOUSLY, IF THE VALUE OF THE PROPERTY IS LESS THAN THE AMOUNT
OF THE MORTGAGE, A MORTGAGOR WHO IS NOT PERSONALLY LIABLE CANNOT
REALIZE A BENEFIT EQUAL TO THE MORTGAGE.  CONSEQUENTLY, A DIFFERENT
PROBLEM MIGHT BE ENCOUNTERED WHERE A MORTGAGOR ABANDONED THE PROPERTY
OR TRANSFERRED IT SUBJECT TO THE MORTGAGE WITHOUT RECEIVING BOOT.  THAT
IS NOT THIS CASE. 

FN38  FOR INSTANCE, THIS PETITIONER RETURNED THE GROSS RENTALS AS HER
OWN INCOME, AND OUT OF THEM PAID INTEREST ON THE MORTGAGE, ON WHICH SHE
CLAIMED AND WAS ALLOWED DEDUCTIONS.  SEE REG. 77, ART. 141; REG. 86,
ART. 23(B)-1; REG. 94, ART. 23(B)-1; REG. 101, ART. 23(B)-1.    FN39
SEE COMMISSIONER V. WILCOX, 327 U.S. 404, 410; TRUST OF BINGHAM V.
COMMISSIONER, 325 U.S. 365, 369-372.  CF. JOHN KELLEY CO. V.
COMMISSIONER, 326 U.S. 521, 527; DOBSON V. COMMISSIONER, 320 U.S. 489. 

FN40  IBID; SEE ALSO SEC. 1141(A) AND (C), I.R.C. 

FN41  DOUGLAS V. WILLCUTS, SUPRA, 296 U.S. AT 9; BURNET V. WELLS, 289
U.S. 670, 677. 

FN42  IN THE COURSE OF THE ARGUMENT SOME REFERENCE WAS MADE, AS BY
ANALOGY, TO A SITUATION IN WHICH A TAXPAYER ACQUIRED BY DEVISE PROPERTY
SUBJECT TO A MORTGAGE IN AN AMOUNT GREATER THAN THE THEN VALUE OF THE
PROPERTY, AND LATER TRANSFERRED IT TO A THIRD PERSON, STILL SUBJECT TO
THE MORTGAGE, AND FOR A CASH BOOT.  WHETHER OR NOT THE DIFFERENCE
BETWEEN THE VALUE OF THE PROPERTY ON ACQUISITION AND THE AMOUNT OF THE
MORTGAGE WOULD IN THAT SITUATION CONSTITUTE EITHER STATUTORY OR
CONSTITUTIONAL INCOME IS A QUESTION WHICH IS DIFFERENT FROM THE ONE
BEFORE US, AND WHICH WE NEED NOT PRESENTLY ANSWER. 

MR. JUSTICE JACKSON, DISSENTING. 

THE TAX COURT CONCLUDED THAT THIS TAXPAYER ACQUIRED ONLY AN EQUITY
WORTH NOTHING.  THE MORTGAGE WAS IN DEFAULT, THE MORTGAGE DEBT WAS
EQUAL TO THE VALUE OF THE PROPERTY, ANY POSSESSION BY THE TAXPAYER WAS
FORFEITED AND TERMINABLE IMMEDIATELY BY FORECLOSURE, AND PERHAPS BY A
RECEIVER PENDENTE LITE.  ARGUMENTS CAN BE ADVANCED TO SUPPORT THE
THEORY THAT THE TAXPAYER RECEIVED THE WHOLE PROPERTY AND THEREUPON CAME
TO OWE THE WHOLE DEBT.  LIKEWISE IT IS ARGUED THAT WHEN SHE SOLD SHE
TRANSFERRED THE ENTIRE VALUE OF THE PROPERTY AND RECEIVED RELEASE FROM
THE WHOLE DEBT.  BUT WE THINK THESE ARGUMENTS ARE NOT SO CONCLUSIVE
THAT IT WAS NOT WITHIN THE PROVINCE OF THE TAX COURT TO FIND THAT SHE
RECEIVED AN EQUITY WHICH AT THAT TIME HAD A ZERO VALUE.  DOBSON V.
COMMISSIONER, 320 U.S. 489; COMMISSIONER V. SCOTTISH AMERICAN
INVESTMENT CO., LTD., 323 U.S. 119.  THE TAXPAYER NEVER BECAME
PERSONALLY LIABLE FOR THE DEBT, AND HENCE WHEN SHE SOLD SHE WAS
RELEASED FROM NO DEBT.  THE MORTGAGE DEBT WAS SIMPLY A SUBTRACTION FROM
THE VALUE OF WHAT SHE DID RECEIVE, AND FROM WHAT SHE SOLD.  THE
SUBTRACTION LEFT HER NOTHING WHEN SHE ACQUIRED IT AND A SMALL MARGIN
WHEN SHE SOLD IT.  SHE ACQUIRED A PROPERTY RIGHT EQUIVALENT TO AN
EQUITY OF REDEMPTION AND SOLD THE SAME THING.  IT WAS THE "PROPERTY"
BOUGHT AND SOLD AS THE TAX COURT CONSIDERED IT TO BE UNDER THE REVENUE
LAWS.  WE ARE NOT REQUIRED IN THIS CASE TO DECIDE WHETHER DEPRECIATION
WAS PROPERLY TAKEN, FOR THERE IS NO ISSUE ABOUT IT HERE. 

WE WOULD REVERSE THE COURT OF APPEALS AND SUSTAIN THE DECISION OF THE
TAX COURT. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS JOIN IN THIS
OPINION. 
..END :















WALLING V. HALLIBURTON CO., 331 U.S. 17 


NO. 74.  ARGUED FEBRUARY 7, 10, 1947.  - DECIDED APRIL 14, 1947.  - 152
F.2D 622, AFFIRMED. 


1.  AFTER ENACTMENT OF THE FAIR LABOR STANDARDS ACT, AN EMPLOYER WHOSE
EMPLOYEES WORKED IRREGULAR HOURS VARYING FROM LESS THAN 30 TO MORE THAN
100 PER WEEK AND FORMERLY RECEIVED FIXED MONTHLY SALARIES, ENTERED INTO
CONTRACTS WITH THEM INDIVIDUALLY WHICH IN EACH CASE SPECIFIED A BASIC
RATE OF PAY PER HOUR FOR THE FIRST 40 HOURS IN ANY WORKWEEK AND NOT
LESS THAN ONE AND ONE-HALF TIMES THAT RATE PER HOUR FOR OVERTIME, WITH
A GUARANTY THAT THE EMPLOYEE SHOULD RECEIVE EACH WEEK FOR REGULAR TIME
AND OVERTIME NOT LESS THAN A SPECIFIED AMOUNT.  UNDER THIS PLAN, THE
EMPLOYEE WORKED MORE THAN 84 HOURS BEFORE HE BECAME ENTITLED TO ANY PAY
IN ADDITION TO THE WEEKLY GUARANTY; BUT, WHEN HE WORKED ENOUGH HOURS TO
EARN MORE THAN THE GUARANTY, THE SURPLUS TIME WAS PAID FOR AT 150% OF
THE BASIC CONTRACT RATE.  HIS COMPENSATION EQUALLED OR EXCEEDED THAT
WHICH HE WAS RECEIVING WHEN THE ACT WENT INTO EFFECT AND EXCEEDED THE
MINIMA WHICH THE ACT PRESCRIBES.  HELD:  THIS CONTRACT DID NOT VIOLATE
SEC. 7(A) OF THE ACT.  PP. 18-26. 

2.  WALLING V. BELO CORP., 316 U.S. 624, FOLLOWED.  WALLING V.
HELMERICH & PAYNE, INC., 323 U.S. 37; OVERNIGHT MOTOR CO. V. MISSEL,
316 U.S. 572; WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO., 325 U.S.
419; WALLING V. HARNISCHFEGER CORP., 325 U.S. 427, DISTINGUISHED.  PP.
20-26. 

WALLING, WAGE AND HOUR ADMINISTRATOR, V. HALLIBURTON OIL WELL
CEMENTING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

THE DISTRICT COURT DENIED RELIEF IN A SUIT BY THE WAGE AND HOUR
ADMINISTRATOR TO ENJOIN ALLEGED VIOLATIONS OF SEC. 7(A) OF THE FAIR
LABOR STANDARDS ACT.  57 F.SUPP.  408.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  152 F.2D 622.  THIS COURT GRANTED CERTIORARI.  328 U.S.
828.  AFFIRMED, P. 26. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE BRINGS HERE A QUESTION AS TO THE APPLICATION OF THE
OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT  FN1  TO THE
PAYMENT OF COMPENSATION PURSUANT TO EMPLOYMENT CONTRACTS SIMILAR TO
THOSE IN WALLING V. BELO CORP., 316 U.S. 624. 

RESPONDENT IS ENGAGED IN THE BUSINESS OF CEMENTING, TESTING AND
OTHERWISE SERVICING OIL WELLS, FOR WHICH IT USES ITS OWN PECULIAR
EQUIPMENT.  TO OPERATE THIS EQUIPMENT RESPONDENT RETAINS A HIGHLY
STABILIZED GROUP OF SKILLED AND SPECIALLY TRAINED "FIELD EMPLOYEES." 
THE VOLUME OF RESPONDENT'S BUSINESS, HOWEVER, IS HIGHLY INCONSTANT. 
CONSEQUENTLY, THESE EMPLOYEES ARE REQUIRED TO WORK A VARIABLE NUMBER OF
HOURS FROM DAY TO DAY AND FROM WEEK TO WEEK. 

PRIOR TO PASSAGE OF THE ACT IN 1938, THESE EMPLOYEES WERE PAID FIXED
MONTHLY SALARIES.  THEREAFTER, THEY WERE PUT ON A "WEEKLY-GUARANTEE"
PLAN SIMILAR TO THAT WHICH WAS TO BE INVOLVED IN THE BELO CASE.  THIS
PLAN WAS ABANDONED MARCH 1, 1942, UNDER PRESSURE FROM THE ADMINISTRATOR
OF THE ACT, AND REINSTATED JULY 1, 1942, AFTER THE BELO DECISION HAD
SEEMED TO END ALL QUESTIONS AS TO ITS LEGALITY N2.  SINCE ITS
REINSTATEMENT THE PLAN HAS BEEN CONTINUOUSLY IN EFFECT, AND EMBODIED IN
FORMAL WRITTEN CONTRACTS BETWEEN RESPONDENT AND THE EMPLOYEES TO WHOM
IT HAS APPLIED. 

THE PART OF THESE CONTRACTS NOW IN ISSUE IS RESPONDENT'S AGREEMENT TO
PAY THESE EMPLOYEES "A REGULAR BASIC RATE OF (A SPECIFIED NUMBER OF)
CENTS PER HOUR FOR THE FIRST (40) HOURS OF ANY WORKWEEK, AND NOT LESS
THAN ONE AND ONE-HALF TIMES SUCH BASIC HOURLY RATE OF PAY FOR ALL TIME
OVER (40) HOURS IN ANY WORKWEEK, WITH A GUARANTEE THAT EMPLOYEE SHALL
RECEIVE FOR REGULAR TIME AND FOR SUCH OVERTIME AS THE NECESSITIES OF
THE BUSINESS MAY DEMAND A SUM NOT LESS THAN $ (A SPECIFIED NUMBER) FOR
EACH WORKWEEK."  FN3 

THE REGULAR BASIC RATE SO SPECIFIED WAS IN EACH CASE AT OR ABOVE THE
MINIMUM PRESCRIBED BY THE ACT OR BY THE ADMINISTRATOR'S ORDER, BUT THAT
RATE WAS ALWAYS SO RELATED TO THE GUARANTEED FLAT SUM THAT THE EMPLOYEE
BECAME ENTITLED TO MORE THAN THE GUARANTEE ONLY IN WEEKS IN WHICH HE
WORKED MORE THAN 84 HOURS.  FN4  THE COMPENSATION ACTUALLY PAID WAS
REGULARLY CONSISTENT WITH THE CONTRACTUAL OBLIGATION AS STATED. 

PETITIONER SUED RESPONDENT UNDER SEC. 17 OF THE ACT TO ENJOIN AGAINST
FUTURE ADHERENCE TO THIS PLAN, ON THE GROUND THAT IT FAILED TO INCLUDE
OVERTIME COMPENSATION AS REQUIRED BY SEC. 7(A).  HE CONTENDED THAT THE
ACTUAL "REGULAR RATE" OF COMPENSATION PAYABLE UNDER THESE CONTRACTS WAS
NOT THE SPECIFIED BASIC RATE, BUT RATHER THE QUOTIENT OF THE AMOUNT OF
THE CORRELATIVE GUARANTEE DIVIDED BY THE NUMBER OF HOURS WORKED IN THAT
WEEK.  THIS WAS SAID TO FOLLOW FROM THE FACT THAT THE EMPLOYEES USUALLY
WORKED LESS THAN 84 HOURS A WEEK AND NEVERTHELESS RECEIVED THE FULL
GUARANTEED SUM. 

THE DISTRICT COURT FOUND, HOWEVER, THAT THE CONTRACTS WERE "BONA
FIDE," AND THAT THEY WERE "INTENDED TO AND DID REALLY FIX THE REGULAR
RATE" AT WHICH THE MEN WERE EMPLOYED.  IT DENIED RELIEF  FN5  AND THE
CIRCUIT COURT OF APPEALS AFFIRMED,  FN6  BOTH COURTS RELYING ON OUR
DECISION IN THE BELO CASE. 

PETITIONER ADMITS A CLOSE SIMILARITY OF FACTS AND OF HIS BASIC
CONTENTIONS IN THIS AND THE BELO CASE.  HE ARGUES, HOWEVER, THAT THE
BELO DECISION SHOULD NOT BE FOLLOWED:  (A) BECAUSE THERE ARE FACTUAL
DIFFERENCES BETWEEN THE TWO CASES ADEQUATE TO DISTINGUISH THEM, (B)
BECAUSE BELO HAS BEEN IMPLICITLY OVERRULED BY LATER DECISIONS OF THIS
COURT, AND (C) BECAUSE THE BELO DECISION IS ERRONEOUS. 

AS TO THE FIRST OF THESE ARGUMENTS, WE NOTE THAT THE CONTRACTS IN
BELO AND IN THIS CASE ARE SUBSTANTIALLY IDENTICAL, EXCEPT FOR THE
AMOUNT OF THE HOURLY RATE AND OF THE FIXED GUARANTEE.  UNDER THE BELO
CONTRACT, HOWEVER, OVERTIME WOULD BE PAID IN ADDITION TO THE GUARANTEED
WAGE AFTER 54 1/2 HOURS HAD BEEN WORKED IN ANY GIVEN WEEK; FN7  UNDER
THIS CONTRACT, ONLY AFTER 84 HOURS.  IT IS SAID THAT THIS 84 HOURS
BEARS NO RELATION TO THE USUAL WORKWEEK. 

ACTUALLY, THE EMPLOYEES IN THIS CASE HAVE NO USUAL WORKWEEK.  IN MANY
WEEKS THEY WORK MORE THAN 100 HOURS; IN OTHERS LESS THAN 30.  IN ABOUT
20 PER CENT OF THE WORKWEEKS, THEY WORK IN EXCESS OF 84 HOURS.  FN8
WHENEVER THEY DO, THEY ARE PAID IN ACCORDANCE WITH THE CONTRACT ON THE
BASIS OF THE SPECIFIED HOURLY RATE WITH APPROPRIATE OVERTIME. 

NO MORE CAN BE SAID AS TO THE RELATION BETWEEN 54 1/2 HOURS AND THE
USUAL WORKWEEK IN BELO.  IT APPEARS FROM THE RECORD IN THAT CASE THAT
THE EMPLOYEES THERE INVOLVED ALSO WORKED FLUCTUATING WORKWEEKS, AND
THAT THE AVERAGE WORKWEEK WAS SUBSTANTIALLY LESS THAN 54 1/2 HOURS. 
INDEED, IT APPEARS THAT THE BELO EMPLOYEES EXCEEDED 54 1/2 HOURS IN
CONSIDERABLY LESS THAN 20 PER CENT OF THE WEEKS WORKED.  FN9  WHEN THEY
DID SO, THEY TOO WERE PAID AT THE CONTRACTUAL RATE WITH APPROPRIATE
OVERTIME.  FN10  THERE IS NOTHING HERE TO SUGGEST DIFFERENT TREATMENT
OF THE TWO CASES. 

PETITIONER ALSO POINTS TO ALLEGED DIFFERENCES IN THE FACT THAT
RESPONDENT IN THIS CASE PAID THE FULL WEEKLY GUARANTEE EVEN WHEN ITS
EMPLOYEES WORKED LESS THAN 40 HOURS IN THE WEEK, AND THE FACT THAT
RESPONDENT CARRIED FIXED RATHER THAN FLUCTUATING OVERTIME RATES ON ITS
PAYROLL RECORDS. 

AS TO THE FIRST OF THESE POINTS, THERE IS ACTUALLY NO DIFFERENCE
BETWEEN THIS CASE AND BELO.  THE EMPLOYEES IN BOTH CASES HAD A
CONTRACTUAL RIGHT TO THE FULL GUARANTEE HOWEVER SHORT THEIR WORKWEEK,
AND THOSE IN BELO WERE PAID IT AS WELL AS THOSE HERE.  FN11  THE SECOND
FACT WE THINK WITHOUT SIGNIFICANCE.  THE FUNCTION OF THE PAYROLL
RECORDS WAS MERELY TO SHOW THE AMOUNTS OF COMPENSATION PAYABLE.  THESE
RECORDS DID NOT AFFECT RESPONDENT'S CONTRACT OBLIGATIONS, NOR SUGGEST A
PRACTICE AT VARIANCE WITH THE CONTRACT. 

WE THINK THAT WHATEVER DIFFERENCES EXIST BETWEEN THIS CASE AND BELO
ARE WITHOUT SUBSTANCE, AND THAT IT MUST EITHER BE FOLLOWED OR
OVERRULED. 

THIS BRINGS US TO PETITIONER'S SECOND ARGUMENT, IN WHICH OUR
ATTENTION IS DIRECTED TO THREE CASES DECIDED SINCE BELO, WHEREIN WE
HELD THAT CERTAIN PLANS OF OVERTIME COMPENSATION FAILED TO MEET THE
SEC. 7(A) REQUIREMENT.  IT IS URGED THAT THE PROVISIONS FOR OVERTIME
COMPENSATION IN THESE CASES WERE LEGALLY NO LESS ADEQUATE THAN, AND
THAT THE PRINCIPLES ON WHICH THEY WERE DECIDED ARE NECESSARILY
INCONSISTENT WITH, THE OVERTIME PROVISION AND THE PRINCIPLES OF THE
BELO CASE. 

IN BELO ITSELF, THE SPECIFIED BASIC HOURLY RATE WAS HELD TO BE THE
ACTUAL REGULAR RATE BECAUSE, AS TO WEEKS IN WHICH EMPLOYEES WORKED MORE
THAN 54 1/2 HOURS, THE SPECIFIED RATE DETERMINED THE AMOUNT OF
COMPENSATION ACTUALLY PAYABLE; AS TO WEEKS IN WHICH THEY WORKED LESS,
THE COURT INFERRED FROM THE COLLATERAL SPECIFICATION OF A BASIC RATE
AND PROVISION FOR A LEGAL BUT VARIABLE RATE OF OVERTIME PAY THAT THE
GUARANTEED FLAT SUM THEN DUE ALSO CONTEMPLATED BOTH BASIC PAY AND
OVERTIME.  FN12  ON THE OTHER HAND, WE FIND THAT IN THE THREE LATER
CASES RELIED ON BY PETITIONER, THE AGREED METHOD BY WHICH WAGES WERE
COMPUTED MADE A LIKE INFERENCE IMPOSSIBLE. 

IN WALLING V. HELMERICH & PAYNE, INC., 323 U.S. 37, WE CONSIDERED A
"SPLIT-DAY PLAN," UNDER WHICH A PRESCRIBED "REGULAR" HOURLY RATE WAS
PAYABLE FOR THE FIRST FOUR HOURS OF EACH EIGHT-HOUR SHIFT, AND A
PRESCRIBED "OVERTIME" RATE, OF ONE AND ONE-HALF THE "REGULAR" RATE, WAS
PAYABLE FOR THE OTHER FOUR HOURS.  FN13  IN THOSE WEEKS IN WHICH AN
EMPLOYEE WORKED STATUTORY OVERTIME, HE WAS PAID AT THE CONTRACT
"OVERTIME" RATE FOR MANY STRAIGHT-TIME HOURS AND AT THE CONTRACT
"REGULAR" RATE FOR MANY OVERTIME HOURS.  OBVIOUSLY, THESE PRESCRIBED
RATES WERE NOT ACTUAL REGULAR AND OVERTIME RATES, ALTHOUGH SO NAMED IN
THE PLAN.  CONSEQUENTLY, AS IN OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S.
572, WE HELD THAT THE REGULAR RATE WAS TO BE DETERMINED BY DIVIDING THE
WAGES ACTUALLY PAID BY THE HOURS ACTUALLY WORKED.  IN SO DECIDING, WE
EXPRESSLY NOTED THAT BELO WAS NOT CONTROLLING BECAUSE THE WAGE PLANS
INVOLVED IN THE TWO CASES POSED ENTIRELY DIFFERENT QUESTIONS AS TO THE
APPLICATION OF SEC. 7(A).  FN14 

IN WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO., 325 U.S. 419, AND
WALLING V. HARNISCHFEGER CORP., 325 U.S. 427, THE CONTRACTS ESTABLISHED
TWO ALTERNATIVE METHODS FOR COMPUTING EACH EMPLOYEE'S WAGES.  ONE WAS
TO MULTIPLY HIS STRAIGHT-TIME HOURS OF WORK BY A SPECIFIED BASIC HOURLY
RATE, AND HIS OVERTIME HOURS BY ONE AND ONE-HALF THAT RATE, AND ADD THE
PRODUCTS.  THE OTHER WAS TO MULTIPLY THE NUMBER OF JOBS DONE BY A
SPECIFIED PIECEWORK RATE.  THE EMPLOYEE WAS ENTITLED TO BE PAID THE
GREATER OF THESE TWO SUMS.  FN15  THE METHOD OF COMPUTING THE AMOUNT
DUE AT PIECEWORK RATES, WHICH WERE CONSTANT FOR WORK DONE ON BOTH
STRAIGHT-TIME AND OVERTIME HOURS, OF COURSE NEGATED ANY POSSIBLE
INFERENCE THAT THE PAYMENT OF SUCH AMOUNT CONTEMPLATED LEGAL OVERTIME
COMPENSATION.  THE SPECIFIED HOURLY RATES WERE SO LOW, HOWEVER,
RELATIVE TO PIECEWORK RATES, THAT THE LATTER WERE ALWAYS, OR ALMOST
ALWAYS, DETERMINATIVE OF THE WAGE ACTUALLY TO BE PAID.  THESE CASES
HELD MERELY THAT SUCH SPECIFIED HOURLY RATES WERE NOT THE "REGULAR"
RATES OF WAGE PAYMENTS TO WHICH THEY WERE NOT RELATED, AND WHICH WERE
COMPUTED ACCORDING TO A NECESSARILY INCONSISTENT METHOD.  AGAIN, BELO
WAS EXPRESSLY DISTINGUISHED.  FN16 

INDEED, IT WOULD SEEM THAT THE COURT'S OPINIONS IN THESE CASES, FAR
FROM UNDERMINING BELO, SHOWED AN AFFIRMATIVE CONCERN THAT LANGUAGE
APPROPRIATE TO THE SITUATIONS THEN BEFORE US SHOULD NOT BE EXTENDED TO
THE DIFFERENT SITUATION INVOLVED IN THIS AND THE BELO CASE. 

FINALLY, PETITIONER MAINTAINS THAT BELO WAS WRONGLY DECIDED AND THAT
WE SHOULD "DEFINE THE AREA OF (ITS) CONTINUED VITALITY, IF ANY."  HIS
ARGUMENT ON THIS SCORE IS SUBSTANTIALLY THE SAME AS THAT ADVANCED ON
BEHALF OF THE ADMINISTRATOR AND CONSIDERED BY THE COURT IN THE BELO
CASE ITSELF. 

THE REASONS STATED IN THE BELO OPINION FOR REJECTING THIS ARGUMENT
ARE EQUALLY VALID TODAY, AND NEED NOT BE REPEATED.  MOREOVER, OUR
HOLDING IN BELO HAS BEEN A RULE OF DECISION IN THIS COURT FOR FIVE
YEARS, AND RECOGNIZED AS SUCH ON EACH APPROPRIATE OCCASION.  KNOWING OF
THE BELO DECISION, THE CONGRESS HAS PERMITTED SEC. 7(A) TO STAND
UNMODIFIED AND THE COURTS HAVE APPLIED IT AS SO CONSTRUED.  EMPLOYERS
AND EMPLOYEES (INCLUDING THOSE INVOLVED IN THIS CASE) HAVE REGULATED
THEIR AFFAIRS ON THE FAITH OF IT.  EVEN IF WE DOUBTED THE WISDOM OF THE
BELO DECISION AS AN ORIGINAL PROPOSITION, WE SHOULD NOT BE INCLINED TO
DEPART FROM IT AT THIS TIME.  AFFIRMED. 

FN1  52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. THE RELEVANT OVERTIME
PROVISIONS, CONTAINED IN SEC. 7(A), 29 U.S.C. SEC. 207(A), ARE AS
FOLLOWS: 

"NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION,
EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE - 

     .         .         .         .  . 

"(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED
AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT
WHICH HE IS EMPLOYED." 

FN2  THIS COURT DECIDED THE BELO CASE JUNE 8, 1942. 

FN3  COMPARE THE ALMOST IDENTICAL WORDING OF THE BELO CONTRACT, 316
U.S. AT 628. 

FN4  FOR INSTANCE, THE LOWEST SPECIFIED BASIC RATE IN MAY, 1944, WHEN
THIS CASE WAS TRIED, WAS 40 CENTS AN HOUR.  COMPENSATION AT THIS RATE
FOR 40 HOURS AND AT ONE AND ONE-HALF THIS RATE FOR 44 ADDITIONAL HOURS
EQUALS $42.40.  ACTUALLY, THE CORRELATIVE WEEKLY GUARANTEE WAS THE
SLIGHTLY GREATER SUM OF $42.69. 

FN5  57 F.SUPP.  408. 

FN6  152 F.2D 622. 

FN7  SEE THE STATEMENT AND EXPLANATION OF THE BELO CONTRACT, 316 U.S.
AT 627-629. 

FN8  THE RECORD SHOWS THAT OF 4,284 MAN-WEEKS WORKED BY RESPONDENT'S
CALIFORNIA FIELD EMPLOYEES BETWEEN JULY 5, 1942, AND MARCH 11, 1944,
ABOUT 3% WERE LESS THAN 20 HOURS IN LENGTH, ABOUT 13% WERE LESS THAN 40
HOURS, ABOUT 67% WERE FROM 40 TO 84 HOURS, ABOUT 20% WERE OVER 84
HOURS, AND ABOUT 7% OVER 104 HOURS, SOME RUNNING AS HIGH AS 140 AND 150
HOURS.  THIS "WORK-WEEK" WAS THE BASIS FOR DETERMINING COMPENSATION,
BUT IT DID NOT REPRESENT THE NUMBER OF HOURS ACTUALLY WORKED BY THE
EMPLOYEE.  IN THE COURSE OF TYPICAL CEMENTING AND TESTING OPERATIONS,
MANY HOURS COUNTED AS WORKING TIME WERE SPENT WAITING WHILE THE
DRILLING CREW WAS RUNNING THE CASING, THE CEMENT WAS SETTING, THE
PERFORATION WORK WAS BEING DONE BY ANOTHER COMPANY, OR THE TESTING TOOL
WAS STANDING IN THE WELL HOLE. 

FN9  SEE TRANSCRIPT OF RECORD, SUPREME COURT OF THE UNITED STATES,
WALLING V. A.H. BELO CORP., NO. 622, O.T. 1941, PP. 194-337.    FN10
316 U.S. AT 631-632. 

FN11  FLEMING V. A.H. BELO CORP., 121 F.2D 207, AT 210, NOTE 6. 

FN12  316 U.S. AT 631-632.  IN OVERNIGHT MOTOR CO. V. MISSEL, 316
U.S. 572, DECIDED THE SAME DAY AS BELO, THE EMPLOYEES ALSO WORKED AN
IRREGULAR NUMBER OF HOURS EACH WEEK, BUT WERE SIMPLY PAID A FIXED
WEEKLY WAGE.  THE COURT NOTED THE ABSENCE OF ANY AGREEMENT BETWEEN THE
CONTRACTING PARTIES FOR THE PAYMENT OF A SPECIFIED RATE AND OVERTIME,
AND OF ANY CONTRACTUAL LIMITATION ON THE NUMBER OF HOURS THE EMPLOYEE
COULD BE REQUIRED TO WORK FOR THE FIXED WAGE.  IT ALSO NOTED THAT THESE
FACTORS WERE NOT ABSENT FROM THE BELO PLAN.  SEE 316 U.S. AT 581. 
FN13  THEORETICALLY, WHEN AN EMPLOYEE HAD SO ACCUMULATED 40 "REGULAR"
HOURS IN ONE WEEK, ALL SUBSEQUENT HOURS WERE COMPENSABLE AS
"OVERTIME."  ACTUALLY, NO EMPLOYEE EVER DID SO.  SEE 323 U.S. AT 41. 

FN14  "NOTHING IN THIS COURT'S DECISION IN WALLING V. BELO CORP.,
SUPRA, SANCTIONS THE USE OF THE SPLIT-DAY PLAN.  THE CONTROVERSY THERE
CENTERED ABOUT THE QUESTION WHETHER THE REGULAR RATE SHOULD BE COMPUTED
FROM THE GUARANTEED WEEKLY WAGE OR WHETHER IT SHOULD BE IDENTICAL WITH
THE HOURLY RATE SET FORTH IN THE EMPLOYMENT CONTRACT.  THERE WAS NO
QUESTION, AS HERE, PERTAINING TO THE APPLICABILITY OF THE REGULAR RATE
TO THE FIRST 40 HOURS ACTUALLY AND REGULARLY WORKED, WITH THE OVERTIME
RATE APPLYING TO ALL HOURS WORKED IN EXCESS THEREOF."  WALLING V.
HELMERICH & PAYNE, INC., 323 U.S. 37, AT 42. 

FN15  IN THE HARNISCHFEGER CASE, THE SCHEME WAS ACTUALLY A LITTLE
DIFFERENT FROM THAT IN THE YOUNGERMAN-REYNOLDS CASE, WHICH IS STATED IN
THE TEXT.  IN HARNISCHFEGER, THE EMPLOYEE WAS CREDITED WITH (A) THE
PRODUCT OF THE TOTAL NUMBER OF HOURS WORKED MULTIPLIED BY THE BASIC
RATE, PLUS (B) THE AMOUNT BY WHICH PIECEWORK EARNINGS DURING ALL HOURS
WORKED EXCEEDED THE PRODUCT IN (A), PLUS (C) THE PRODUCT OF THE NUMBER
OF OVERTIME HOURS WORKED MULTIPLIED BY ONE-HALF THE BASIC HOURLY RATE. 
THE DIFFERENCE IS THAT IN HARNISCHFEGER SOME PROVISION WAS MADE FOR
OVERTIME; BUT IN BOTH CASES THE PROVISION FOR OVERTIME WAS INADEQUATE,
AND FOR THE SAME REASON.  SEE 325 U.S. AT 431-432. 

FN16  "THIS COURT'S DECISION IN WALLING V. BELO CORP., 316 U.S. 624,
LENDS NO SUPPORT TO RESPONDENT'S POSITION.  THE PARTICULAR WAGE
AGREEMENTS THERE INVOLVED WERE UPHELD BECAUSE IT WAS FELT THAT IN
FIXING A RATE OF 67 CENTS AN HOUR THE CONTRACTS DID IN FACT SET THE
ACTUAL REGULAR RATE AT WHICH THE WORKERS WERE EMPLOYED.  THE CASE IS NO
AUTHORITY, HOWEVER, FOR THE PROPOSITION THAT THE REGULAR RATE MAY BE
FIXED BY CONTRACT AT A POINT COMPLETELY UNRELATED TO THE PAYMENTS
ACTUALLY AND NORMALLY RECEIVED EACH WEEK BY THE EMPLOYEES."  WALLING V.
YOUNGERMAN-REYNOLDS HARDWOOD CO., 325 U.S. 419, AT 426. 

SEE ALSO THE CONCURRING OPINION OF MR. JUSTICE FRANKFURTER IN WALLING
V. HARNISCHFEGER CORP., 325 U.S. 427, 433.  THE COURT DID NOT EXPRESSLY
REFER TO BELO IN ITS OPINION IN THE HARNISCHFEGER CASE; BUT, AS IT DID
IN YOUNGERMAN-REYNOLDS, WHICH INVOLVES SUBSTANTIALLY THE SAME QUESTION
AND WAS DECIDED THE SAME DAY, WE CONSIDER THAT FURTHER REFERENCE TO
BELO WOULD HAVE BEEN REDUNDANT. 

MR. JUSTICE RUTLEDGE. 

I CONCUR IN THE COURT'S JUDGMENT UPON THE AUTHORITY OF WALLING V.
BELO CORP., 316 U.S. 624.  I AGREE WITH MR. JUSTICE MURPHY THAT THE
BELO DECISION IS INCONSISTENT WITH LATER DECISIONS HERE, IN THE VIEW IT
TAKES CONCERNING THE LEGAL EFFECTS OF THE FAIR LABOR STANDARDS ACT. 
BUT THOSE CASES ARE DISTINGUISHABLE UPON THEIR FACTS; THE BELO CASE HAS
BEEN RELIED UPON BY THE PARTIES TO THIS CAUSE AND NO DOUBT ALSO BY
OTHERS, IN MAKING THEIR ARRANGEMENTS; AND THE FACTS HERE SEEM TO ME
INDISTINGUISHABLE FROM THOSE COVERED BY THE BELO DECISION. 
ACCORDINGLY, ALTHOUGH I WOULD RESTRICT THE EFFECTS OF THAT DECISION
NARROWLY TO THE FACTUAL SITUATION PRESENTED, I JOIN IN THE JUDGMENT NOW
RENDERED. 

MR. JUSTICE MURPHY, WITH WHOM MR. JUSTICE BLACK CONCURS, DISSENTING. 

IT IS CONCEDED THAT THE WEEKLY GUARANTY WAS SUFFICIENT TO PAY FOR 40
HOURS AT THE SO-CALLED "REGULAR BASIC RATE" AND FOR 44 ADDITIONAL HOURS
AT ONE AND ONE-HALF TIMES SUCH "BASIC HOURLY RATE."  THE CONTRACT
OVERTIME RATE BECAME EFFECTIVE ONLY AS TO THOSE HOURS OF WORK IN EXCESS
OF 84.  IN OTHER WORDS, THE "REGULAR BASIC RATE" REFERRED TO IN THE
CONTRACTS HAD NO MEANING OR EFFECT WHATSOEVER UNLESS THE EMPLOYEE
WORKED MORE THAN 84 HOURS IN A WEEK.  WHETHER HE WORKED 20 HOURS, 40
HOURS OR 60 HOURS IN A WEEK, HE WAS PAID THE GUARANTEED AMOUNT. 

TO SQUARE SUCH A WAGE SCHEME WITH THE PLAIN REQUIREMENTS OF SEC. 7(A)
OF THE FAIR LABOR STANDARDS ACT OF 1938 IS IMPOSSIBLE.  TIME AND AGAIN
THIS COURT HAS MADE IT CLEAR THAT THE REGULAR RATE OF COMPENSATION UPON
WHICH OVERTIME PAYMENTS ARE TO BE BASED IS THE HOURLY RATE ACTUALLY
PAID TO THE EMPLOYEE FOR THE NORMAL, NON-OVERTIME WORKWEEK FOR WHICH HE
IS EMPLOYED.  OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, 580; WALLING
V. HELMERICH & PAYNE, 323 U.S. 37, 40; UNITED STATES V. ROSENWASSER,
323 U.S. 360, 363; WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO., 325
U.S. 419, 424; WALLING V. HARNISCHFEGER CORP., 325 U.S. 427, 430.  "THE
REGULAR RATE BY ITS VERY NATURE MUST REFLECT ALL PAYMENTS WHICH THE
PARTIES HAVE AGREED SHALL BE RECEIVED REGULARLY DURING THE WORKWEEK,
EXCLUSIVE OF OVERTIME PAYMENTS.  IT IS NOT AN ARBITRARY LABEL CHOSEN BY
THE PARTIES; IT IS AN ACTUAL FACT.  ONCE THE PARTIES HAVE DECIDED UPON
THE AMOUNT OF WAGES AND THE MODE OF PAYMENT THE DETERMINATION OF THE
REGULAR RATE BECOMES A MATTER OF MATHEMATICAL COMPUTATION, THE RESULT
OF WHICH IS UNAFFECTED BY ANY DESIGNATION OF A CONTRARY 'REGULAR RATE'
IN THE WAGE CONTRACTS."  WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO.,
SUPRA, 424-425. 

OUR ATTENTION IN THIS CASE MUST THEREFORE BE FOCUSED UPON THE ACTUAL
PAYMENTS, EXCLUSIVE OF THOSE PAID FOR OVERTIME, WHICH THE PARTIES HAVE
AGREED SHALL BE PAID DURING EACH WORKWEEK.  AND WHEN WE DO THAT, WE
DISCOVER THAT THE PARTIES HAVE AGREED THAT THE EMPLOYEES SHALL RECEIVE
THE GUARANTEED AMOUNT, NOT THE SO-CALLED "REGULAR BASIC RATE."  THAT
GUARANTEED AMOUNT IS THUS THE REGULAR RATE FOR PURPOSES OF SEC. 7(A) OF
THE ACT, THE SO-CALLED "REGULAR BASIC RATE" BEING AN OBVIOUSLY
ARTIFICIAL ONE. 

IT IS SAID, HOWEVER, THAT THIS SCHEME IS SANCTIONED BY WALLING V.
BELO CORP., 316 U.S. 624.  THAT IS TRUE, BUT IT DOES NOT JUSTIFY
CONTINUANCE OF THE ERRONEOUS BELO DOCTRINE.  THE BELO CASE HAS BEEN
DISTINGUISHED IN SUBSEQUENT OPINIONS OF THIS COURT, BUT THE
DISTINCTIONS WERE ESSENTIALLY ONES OF FACT.  ON THE BASIS OF LEGAL AND
STATUTORY THEORY, THE BELO CASE IS IRRECONCILABLE WITH THE LATER
CASES.  THE BELO CASE, WHICH CARRIES ITS OWN REFUTATION IN ITS
DISSENTING OPINION, SHOULD THEREFORE BE OVERRULED.  OTHERWISE WE SHALL
BE PERPETUATING AND AUGMENTING THE UNREALITIES AND CONFUSION WHICH HAVE
MARKED THE APPLICATION OF THE DOCTRINE OF THAT CASE.  SEE FELDMAN,
"ALGEBRA AND THE SUPREME COURT," 40 ILL. L. REV. 489; "LEGALITY OF WAGE
READJUSTMENT PLANS UNDER THE OVERTIME PROVISION OF THE FAIR LABOR
STANDARDS ACT," 13 U. OF CHI.  L. REV. 486; 44 MICH. L. REV. 866. 
..END :












UNITED STATES BANK V. CHASE BANK, 331 U.S. 28 


NO. 371.  ARGUED FEBRUARY 7, 1947.  - DECIDED APRIL 14, 1947.  - 155
F.2D 755, REVERSED. 


THE PRINCIPAL ASSET OF A BANKRUPT ESTATE WAS AN UNDIVIDED INTEREST IN
COAL LANDS, OPERATED IN PART BY LESSEES AND PRODUCING SUBSTANTIAL
ROYALTIES.  MORE THAN FOUR MONTHS PRIOR TO THE ADJUDICATION IN
BANKRUPTCY, TWO CREDITORS HAD OBTAINED JUDGMENTS AGAINST THE BANKRUPT,
WHICH CONSTITUTED FIRST AND SECOND LIENS ON THE INTEREST IN THESE
LANDS.  SUBSEQUENTLY, A PLAN SUGGESTED BY THE ATTORNEY FOR THE TRUSTEE
AND CERTAIN GENERAL CREDITORS WAS ADOPTED, WHEREBY IN CONSIDERATION OF
THE SECURED CREDITORS FORBEARING TO PRESS THEIR CLAIMS, THE ESTATE WAS
DIVIDED INTO TWO FUNDS:  A REAL ESTATE FUND, AND A GENERAL FUND
INCLUDING ROYALTIES, ETC.  THE FIRST FUND WAS TO GO TO THE FIRST
JUDGMENT CREDITOR, THE SECOND FUND WAS TO BE DIVIDED PRO RATA AMONG ALL
CREDITORS.  AFTER THE PLAN HAD BEEN IN OPERATION FOR MORE THAN TWELVE
YEARS, A GENERAL CREDITOR WHOSE ATTORNEY HAD PROPOSED THE PLAN
PETITIONED THE BANKRUPTCY COURT FOR A DECREE TO THE EFFECT THAT THE TWO
JUDGMENT CREDITORS HAD WAIVED THEIR LIENS BY SHARING IN DISTRIBUTIONS
FROM THE GENERAL FUND.  HELD: 

1.  UPON THE PARTICULAR FACTS OF THIS CASE, THE LIENS ARE DECLARED
VALID AND IN EXISTENCE, NOTWITHSTANDING THE FAILURE TO FOLLOW THE
PROVISIONS OF SEC. 57(H) OF THE BANKRUPTCY ACT, AND NOTWITHSTANDING THE
DISTRIBUTION OF DIVIDENDS CONTRARY TO SEC. 65(A).  PP. 35-39. 

(A)  WHETHER A SECURED CREDITOR'S PARTICIPATION IN DISTRIBUTIONS FROM
THE GENERAL ASSETS OF A BANKRUPT ESTATE ON THE BASIS OF HIS FULL CLAIM
CONSTITUTES A WAIVER OF HIS LIEN AND AN ELECTION TO BE TREATED AS AN
UNSECURED CREDITOR, DEPENDS UPON THE CIRCUMSTANCES SURROUNDING THE
RECEIPT OF THE DIVIDENDS.  IN EXCEPTIONAL CASES, THE CIRCUMSTANCES MAY
DEMONSTRATE THE CONTINUED VITALITY OF THE SECURITY AS WELL AS INDICATE
THE INEQUITY OF DECLARING THE SECURITY FORFEITED.  PP. 35-36. 

(B)  IN RARE CASES, WHERE THERE IS A REASONABLE DOUBT AS TO WHETHER A
WAIVER HAS OCCURRED, A CAREFUL EXAMINATION MUST BE MADE, IN THE LIGHT
OF RECOGNIZED PRINCIPLES OF EQUITY, TO DETERMINE UPON WHAT CONDITIONS
THE DIVIDENDS FROM THE GENERAL ASSETS WERE DISTRIBUTED TO THE SECURED
CREDITOR.  P. 36. 

(C)  THE JUDGMENT LIEN CREDITORS HAVING RECEIVED DIVIDENDS FROM THE
GENERAL FUND IN GOOD FAITH AND WITHOUT INTENT TO WAIVE THEIR LIENS,
THERE BEING NO EQUITABLE REASON WHY THE LIENS SHOULD BE DECLARED
FORFEITED, THE GENERAL CREDITOR WHOSE COUNSEL RECOMMENDED THE PLAN AND
ACQUIESCED IN ITS OPERATION BEING EQUITABLY ESTOPPED TO OBJECT TO THE
VALIDITY OF THE LIENS ON THE BASIS OF THE OPERATION OF THE PLAN, AND
THERE BEING NO EVIDENCE THAT ANY PERMANENT INJURY TO ANY GENERAL
CREDITOR RESULTED FROM THE OPERATION OF THE PLAN, THE EQUITIES OF THIS
CASE REQUIRE THAT THE LIENS BE HELD VALID AND IN EXISTENCE.  PP. 36
39. 

2.  IN VIEW OF THE FACT THAT THE BANKRUPTCY PROCEEDINGS HAVE BEEN
UNDULY PROLONGED FOR OVER TWENTY YEARS, THE BANKRUPTCY COURT SHOULD NOW
TAKE STEPS TO WIND UP THE ESTATE IN ACCORDANCE WITH THE PROVISIONS OF
THE BANKRUPTCY ACT.  P. 39. 

UNITED STATES NATIONAL BANK ET AL. V. CHASE NATIONAL BANK ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

IN A PROCEEDING IN BANKRUPTCY, A GENERAL CREDITOR PETITIONED FOR A
DECREE TO THE EFFECT THAT TWO SECURED CREDITORS HAD WAIVED THEIR LIENS
BY SHARING IN DISTRIBUTIONS FROM THE GENERAL ASSETS OF THE BANKRUPT
ESTATE.  THE DISTRICT COURT GRANTED THE PETITIONS, 56 F.SUPP.  190;
BUT, ON REHEARING, DENIED THEM, 61 F.SUPP.  151.  THE CIRCUIT COURT OF
APPEALS REVERSED.  155 F.2D 755.  THIS COURT GRANTED CERTIORARI.  329
U.S. 699.  REVERSED AND REMANDED, P. 39. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

A PROBLEM ARISING UNDER THE BANKRUPTCY ACT IS PRESENTED BY THE UNIQUE
FACTS OF THIS CASE. 

ON JUNE 10, 1926, HARVEY C. STINEMAN WAS ADJUDICATED A BANKRUPT UPON
A VOLUNTARY PETITION AND THE CASE WAS REFERRED TO A REFEREE.  THE
PRINCIPAL ASSET OF THE BANKRUPT ESTATE WAS AN UNDIVIDED ONE-SIXTH
INTEREST IN A LARGE ACREAGE OF VALUABLE COAL LANDS, A LARGE PORTION OF
WHICH WAS OPERATED BY LESSEES AND WAS PRODUCING SUBSTANTIAL ROYALTIES. 
THE VALUE OF THE INTEREST OF THE BANKRUPT ESTATE IN THIS ASSET IS
ALLEGED TO HAVE BEEN APPRAISED AT $90,000. 

MORE THAN FOUR MONTHS PRIOR TO THE DATE WHEN THE PETITION WAS FILED
AND THE ADJUDICATION MADE, THE UNITED STATES NATIONAL BANK OF
JOHNSTOWN, PA., AND THE FIRST NATIONAL BANK OF SOUTH FORK, PA., HAD
PROCURED JUDGMENTS AGAINST STINEMAN.  THESE TWO JUDGMENTS CONSTITUTED
FIRST AND SECOND LIENS, RESPECTIVELY, ON STINEMAN'S INTEREST IN THE
COAL LANDS.  THIS INTEREST HAD NO OTHER ENCUMBRANCES UPON IT. 

ON JANUARY 8, 1927, THE JOHNSTOWN BANK FILED ITS SECURED CLAIM IN THE
BANKRUPTCY PROCEEDINGS IN THE AMOUNT OF $10,000, RECITING AS ITS
SECURITY THE FIRST LIEN ON THE INTEREST IN THE COAL LANDS.  THIS CLAIM
WAS ALLOWED.  SUBSEQUENTLY, IN 1932, THE JOHNSTOWN BANK FILED AN
AMENDED CLAIM IN THE AMOUNT OF $13,685, INTEREST ACCRUING AFTER
BANKRUPTCY HAVING BEEN ADDED TO THE ORIGINAL CLAIM.  THE AMENDED CLAIM
WAS ALLOWED IN THE AMOUNT FILED AND FORMED THE BASIS FOR THE BANK'S
PARTICIPATION IN THE DIVIDENDS FROM THE GENERAL FUND, MENTIONED
HEREINAFTER.  A COURT ORDER IN 1944 REDUCED THIS CLAIM TO $10,000. 

THE SOUTH FORK BANK, ON JUNE 29, 1926, FILED ITS SECURED CLAIM WITH
THE REFEREE FOR $11,290, RECITING THE SECOND LIEN AS ITS SECURITY,
ALONG WITH UNSECURED CLAIMS FOR $7,173.45.  DIVIDENDS FROM THE GENERAL
FUND WERE SUBSEQUENTLY PAID TO THE BANK ON THE BASIS OF THE FULL AMOUNT
OF ALL ITS CLAIMS, $18,463.45. 

NUMEROUS GENERAL, UNSECURED CLAIMS WERE FILED BY OTHER CREDITORS,
APPROXIMATING $225,000 IN AMOUNT.  INCLUDED AMONG THESE WAS THE CLAIM
OF THE CHASE NATIONAL BANK OF THE CITY OF NEW YORK, A CLAIM WHICH WAS
ALLOWED IN THE AMOUNT OF $55,231.98. 

THE REFEREE HELD A MEETING OF THE CREDITORS ON DECEMBER 31, 1929,
MORE THAN THREE AND A HALF YEARS AFTER THE ADJUDICATION.  THE MOTIVE
FOR THIS MEETING APPEARS TO HAVE BEEN THE FACT THAT THE JOHNSTOWN AND
SOUTH FORK BANKS, THE JUDGMENT LIEN CREDITORS, WERE PRESSING FOR
PAYMENT OF THEIR SECURED CLAIMS.  THIS MEETING WAS ATTENDED BY THE
BANKRUPT, THE TRUSTEE IN BANKRUPTCY AND REPRESENTATIVES OF THE TWO
JUDGMENT CREDITORS, THE CHASE NATIONAL BANK AND CERTAIN OTHER GENERAL
CREDITORS.  APPARENTLY NOT ALL OF THE GENERAL CREDITORS APPEARED AT
THIS MEETING.  THE CONSENSUS OF OPINION AMONG THOSE PRESENT WAS THAT
THE REAL ESTATE HAD A VALUE IN EXCESS OF THE LIENS BUT THAT "IF THE
LIEN CREDITORS FORECLOSED UPON THEIR LIENS, LITTLE, IF ANYTHING, WOULD
BE LEFT FOR GENERAL CREDITORS." 

ONE OF THE ATTORNEYS PRESENT, P. J. LITTLE, THEN MADE A SUGGESTION. 
MR. LITTLE AT THIS TIME WAS SERVING AS COUNSEL FOR THE TRUSTEE, THE
CHASE NATIONAL BANK AND SEVERAL OTHER GENERAL CREDITORS.  HIS
SUGGESTION WAS "THAT UNDER THE LAW THE ESTATE SHOULD BE DIVIDED INTO
TWO ITEMS; ONE ITEM SHOWING FUNDS ARISING WHOLLY FROM REAL ESTATE WHICH
DOES NOT INCLUDE ANY OF THE LEASES OR THE FUNDS FROM ANY OF THE LEASES;
THE OTHER FUND SHOULD BE MADE UP OF ALL ROYALTIES, RENTALS, OR
DIVIDENDS ON STOCKS OR BONDS.  THE FIRST FUND TO GO TO THE FIRST
JUDGMENT CREDITOR, THE SECOND FUND TO BE DIVIDED PRO RATA AMONG ALL THE
CREDITORS." 

THE PARTIES APPARENTLY AGREED TO THIS PROPOSAL.  ALTHOUGH NO
SUPPORTING ORDER OF THE REFEREE APPEARS IN THE RECORD, THE
ADMINISTRATION OF THE BANKRUPT ESTATE PROCEEDED AS IF A SUPPORTING
ORDER HAD BEEN ENTERED.  THE TWO JUDGMENT LIEN CREDITORS ASSENTED TO
THIS COURSE OF EVENTS AND IT IS ASSERTED THAT ALL THE CREDITORS
UNDERSTOOD THAT THE LIENS WERE TO REMAIN INTACT UNTIL THE UNDERLYING
CLAIMS HAD BEEN PAID IN FULL. 

THEREAFTER, FOUR DIVIDENDS WERE DECLARED AND DISTRIBUTED FROM THE
REAL ESTATE FUND, WHILE SEVEN DIVIDENDS WERE DECLARED AND DISTRIBUTED
FROM THE GENERAL FUND.  THE JOHNSTOWN BANK RECEIVED AT LEAST $1,364.76
FROM THE REAL ESTATE FUND; THE SOUTH FORK BANK APPEARS TO HAVE RECEIVED
NOTHING FROM THAT FUND.  BOTH OF THESE BANKS SHARED WITH THE OTHER
CREDITORS IN THE SEVEN DISTRIBUTIONS FROM THE GENERAL FUND, THE
JOHNSTOWN BANK RECEIVING $2,435.06 AND THE SOUTH FORK BANK, $3,285.35. 
NO EXCEPTIONS WERE EVER TAKEN TO ANY OF THE VARIOUS ORDERS OF
DISTRIBUTIONS.  IN ADDITION, THESE TWO BANKS HAVE CAREFULLY REVIVED
THEIR JUDGMENTS DURING EACH FIVE-YEAR PERIOD, MAKING THE TRUSTEE IN
BANKRUPTCY A PARTY TO THE PROCEEDINGS. 

IN OCTOBER, 1942, THE CHASE NATIONAL BANK FILED PETITIONS FOR A
DECREE TO THE EFFECT THAT THE TWO BANKS HAD WAIVED THEIR LIENS BY
SHARING IN THE DISTRIBUTIONS FROM THE GENERAL FUND ALONG WITH THE
GENERAL CREDITORS AND THAT THE JOHNSTOWN BANK SHOULD BE COMPELLED TO
RETURN THE $1,364.76 IT HAD RECEIVED FROM THE REAL ESTATE FUND.  THE
REFEREE, HOWEVER, HELD THAT BOTH THE JOHNSTOWN AND SOUTH FORK BANKS
WERE ENTITLED TO MAINTAIN THEIR POSITIONS AS LIEN CREDITORS AND AT THE
SAME TIME PARTICIPATE IN THE DISTRIBUTIONS FROM THE GENERAL FUND.  THE
DISTRICT COURT REVERSED THE REFEREE'S DECISION, FEELING THAT
PARTICIPATION IN DISTRIBUTIONS FROM BOTH THE REAL ESTATE AND GENERAL
FUNDS WAS CONTRARY TO ACCEPTED BANKRUPTCY PRACTICE.  IN RE STINEMAN, 56
F.SUPP.  190.  ON REHEARING, THE DISTRICT COURT CHANGED ITS MIND; IT
BECAME CONVINCED THAT THE CHASE NATIONAL BANK HAD RECOMMENDED THE
ARRANGEMENT, HAD ACQUIESCED IN ITS EXECUTION AND WAS NOW ESTOPPED FROM
OBJECTING.  IN RE STINEMAN, 61 F.SUPP.  151.  THE THIRD CIRCUIT COURT
OF APPEALS REVERSED, HOLDING THAT THE PARTIES HAD COMPLETELY
DISREGARDED THE PERTINENT PROVISIONS OF THE BANKRUPTCY ACT AND THAT THE
JOHNSTOWN AND SOUTH FORK BANKS HAD WAIVED THEIR LIENS AND WERE ENTITLED
TO SHARE IN THE BANKRUPTCY ESTATE ONLY AS GENERAL CREDITORS.  IN RE
STINEMAN, 155 F.2D 755. 

TO THIS CASE.  SECTION 65(A) PROVIDES:  "DIVIDENDS OF AN EQUAL PER
CENTUM SHALL BE DECLARED AND PAID ON ALL ALLOWED CLAIMS, EXCEPT SUCH AS
HAVE PRIORITY OR ARE SECURED."  11 U.S.C. SEC. 105(A).  SECTION 57(H)
PROVIDES:  "THE VALUE OF SECURITIES HELD BY SECURED CREDITORS SHALL BE
DETERMINED BY CONVERTING THE SAME INTO MONEY ACCORDING TO THE TERMS OF
THE AGREEMENT PURSUANT TO WHICH SUCH SECURITIES WERE DELIVERED TO SUCH
CREDITORS, OR BY SUCH CREDITORS AND THE TRUSTEE BY AGREEMENT,
ARBITRATION, COMPROMISE OR LITIGATION, AS THE COURT MAY DIRECT, AND THE
AMOUNT OF SUCH VALUE SHALL BE CREDITED UPON SUCH CLAIMS, AND A DIVIDEND
SHALL BE PAID ONLY ON THE UNPAID BALANCE.  SUCH DETERMINATION SHALL BE
UNDER THE SUPERVISION AND CONTROL OF THE COURT."  11 U.S.C. SEC.
93(H). 

UNDER THESE PROVISIONS, THERE ARE SEVERAL AVENUES OF ACTION OPEN TO A
SECURED CREDITOR OF A BANKRUPT.  SEE 3 COLLIER ON BANKRUPTCY (14TH
ED.)  PP. 149-157, 255-259.  (1) HE MAY DISREGARD THE BANKRUPTCY
PROCEEDING, DECLINE TO FILE A CLAIM AND RELY SOLELY UPON HIS SECURITY
IF THAT SECURITY IS PROPERLY AND SOLELY IN HIS POSSESSION.  IN RE
CHEROKEE PUBLIC SERVICE CO., 94 F.2D 536; WARD V. FIRST NAT. BANK, 202
F. 609.  (2) HE MUST FILE A SECURED CLAIM, HOWEVER, IF THE SECURITY IS
WITHIN THE JURISDICTION OF THE BANKRUPTCY COURT AND IF HE WISHES TO
RETAIN HIS SECURED STATUS, INASMUCH AS THAT COURT HAS EXCLUSIVE
JURISDICTION OVER THE LIQUIDATION OF THE SECURITY.  ISAACS V. HOBBS TIE
& TIMBER CO., 282 U.S. 734.  (3) HE MAY SURRENDER OR WAIVE HIS SECURITY
AND PROVE HIS ENTIRE CLAIM AS AN UNSECURED ONE.  IN RE MEDINA QUARRY
CO., 179 F. 929; MORRISON V. RIEMAN, 249 F. 97.  (4) HE MAY AVAIL
HIMSELF OF HIS SECURITY AND SHARE IN THE GENERAL ASSETS AS TO THE
UNSECURED BALANCE.  MERRILL V. NATIONAL BANK OF JACKSONVILLE, 173 U.S.
131; EX PARTE CITY BANK, 3 HOW.  292, 315. 

PERMITS THE SECURED CREDITOR TO RECEIVE DIVIDENDS ALONG WITH THE
GENERAL CREDITORS ONLY ON THE BALANCE REMAINING AFTER THE VALUE OF THE
SECURITY HAS BEEN DETERMINED AND DEDUCTED FROM THE CLAIM.  THIS RULE,
COMMONLY KNOWN AS THE BANKRUPTCY RULE, IS DESIGNED TO PRECLUDE ANY
UNWARRANTED ADVANTAGE FROM ACCRUING TO THE SECURED CREDITOR.  GROUNDED
UPON THE STATUTORY PRINCIPLE OF EQUALITY AND RATABLE DISTRIBUTION, IT
PROHIBITS THE SECURED CREDITOR FROM REAPING THE WHOLE BENEFIT OF HIS
SECURITY WHILE SIMULTANEOUSLY TAKING DIVIDENDS FROM THE GENERAL ASSETS
ON THE BASIS OF HIS ENTIRE CLAIM AS IF HE HAD NO SECURITY.  THIS RULE
DIFFERS FROM THE ONE IN EQUITY, WHICH ALLOWS THE SECURED CREDITOR TO
RECEIVE DIVIDENDS ON THE FULL AMOUNT OF HIS CLAIM, CREDITING ALL
DIVIDENDS RECEIVED AND RESERVING THE SECURITY AGAINST ANY DEFICIENCY. 
MERRILL V. NATIONAL BANK OF JACKSONVILLE, SUPRA.  AND SEE 3 COLLIER ON
BANKRUPTCY (14TH ED.)  P. 153; HANSON, "THE SECURED CREDITOR'S SHARE OF
AN INSOLVENT ESTATE," 34 MICH. L. REV. 309; 12 FORD.  L. REV. 77. 

IT IS ARGUED THAT THE PLAN ADOPTED IN THIS CASE CANNOT BE SANCTIONED
UNDER THE FOREGOING PRINCIPLES.  THIS PLAN ALLEGEDLY CALLED FOR THE USE
OF SOMETHING SIMILAR TO THE EQUITY RULE OF DISTRIBUTION.  THE JUDGMENT
LIEN CREDITORS WERE TO RETAIN THEIR LIENS WHILE SHARING FULLY IN THE
DIVIDENDS FROM THE GENERAL FUNDS AS IF THEY HAD NO LIENS, CREDITING THE
DIVIDENDS RECEIVED AGAINST THEIR CLAIMS.  BUT SEC. 57(H) IS SAID
PLAINLY TO OUTLAW THE USE OF THAT RULE; IF THE JUDGMENT LIEN CREDITORS
WISHED TO RETAIN THEIR LIENS, THEY COULD SHARE IN THE DIVIDENDS ONLY TO
THE EXTENT THAT THEIR CLAIMS EXCEEDED THE VALUE OF THEIR LIENS.  SINCE
THEY DID NOT FOLLOW THE PROVISIONS OF SEC. 57(H), THE CONCLUSION IS
REACHED THAT THEY HAVE WAIVED THEIR LIENS AND MUST NOW BE CONSIDERED
SOLELY AS UNSECURED CREDITORS. 

AT THIS POINT IT SHOULD BE NOTED THAT THE INCOMPLETE RECORD BEFORE US
FAILS TO REVEAL THE VALUE OF THE INTEREST IN THE COAL LANDS TO WHICH
THE LIENS ATTACHED.  THE JUDGMENT LIEN CREDITORS CLAIM THAT THE VALUE
WAS FIXED AT $90,000, BUT NO SUCH VALUATION APPEARS IN THE RECORD. 
THAT IT MIGHT BE LESS THAN $90,000 IS INDICATED BY THE STATEMENT OF
THESE CREDITORS THAT IF THEY HAD FORECLOSED ON THEIR COMBINED LIENS OF
$21,290, "THERE WOULD HAVE BEEN LITTLE, IF ANYTHING, LEFT FOR THE
GENERAL CREDITORS."  BUT IN THE SETTING OF THIS CASE, WE BELIEVE IT
IMMATERIAL WHETHER THE VALUE OF THE INTEREST IN THE COAL LANDS WAS
GREATER OR LESS THAN THE AMOUNT OF THE SECURED CLAIMS.  IN EITHER
EVENT, THE PROBLEM BEFORE US CONCERNS ITSELF WITH THE PRESENT VALIDITY
OF THE LIENS.  HAS THE CONDUCT OF THE JUDGMENT LIEN CREDITORS BEEN SUCH
AS TO CONSTITUTE A WAIVER OF THEIR JUDGMENT LIENS?  THAT QUESTION WE
ANSWER IN THE NEGATIVE. 

THE FACT THAT THE JUDGMENT LIEN CREDITORS RECEIVED GENERAL DIVIDENDS
CONTRARY TO THE SCHEME OF SEC. 57(H) DOES NOT NECESSARILY MEAN THAT
THEY THEREBY WAIVED THEIR LIENS.  NOTHING IN THE LANGUAGE OF SEC. 57(H)
OR OF ANY OTHER SECTION OF THE ACT MAKES SUCH A RECEIPT THE NECESSARY
EQUIVALENT OF A WAIVER.  IT IS GENERALLY TRUE THAT PARTICIPATION BY A
SECURED CREDITOR IN DISTRIBUTIONS FROM THE GENERAL ASSETS ON THE BASIS
OF HIS FULL CLAIM INDICATES A WAIVER OF THE SECURITY AND AN ELECTION TO
BE TREATED AS AN UNSECURED CREDITOR.  SEE IN RE O'GARA COAL CO., 12
F.2D 426.  BUT THAT IS NOT AN INVARIABLE RESULT FLOWING FROM THE
APPLICATION OF ANY RIGID STATUTORY RULE.  THE RESULT DEPENDS, RATHER,
UPON THE CIRCUMSTANCES SURROUNDING THE RECEIPT OF THE DIVIDENDS.  AND
IN EXCEPTIONAL CASES, THOSE CIRCUMSTANCES MAY DEMONSTRATE THE CONTINUED
VITALITY OF THE SECURITY AS WELL AS INDICATE THAT IT WOULD BE
INEQUITABLE TO DECLARE THE SECURITY FORFEITED.  SEE WUERPEL V.
COMMERCIAL GERMANIA TRUST & SAVINGS BANK, 238 F. 269; MAXWELL V.
MCDANIELS, 195 F. 426; HARTFORD ACCIDENT & INDEMNITY CO. V. COGGIN, 78
F.2D 471; STANDARD OIL CO. V. HAWKINS, 74 F. 395. 

IN THE RARE CASE WHERE THERE IS REASONABLE DOUBT AS TO WHETHER A
WAIVER HAS OCCURRED, A CAREFUL EXAMINATION MUST THEREFORE BE MADE TO
DETERMINE THE CONDITIONS UNDER WHICH THE DIVIDENDS FROM THE GENERAL
ASSETS WERE DISTRIBUTED TO THE SECURED CREDITOR.  AND THAT EXAMINATION
MUST BE MADE IN THE LIGHT OF THE RECOGNIZED PRINCIPLES OF EQUITY.  IT
HAS LONG BEEN ESTABLISHED THAT "COURTS OF BANKRUPTCY ARE ESSENTIALLY
COURTS OF EQUITY, AND THEIR PROCEEDINGS INHERENTLY PROCEEDINGS IN
EQUITY."  LOCAL LOAN CO. V. HUNT, 292 U.S. 234, 240; PEPPER V. LITTON,
308 U.S. 295, 304.  IN DETERMINING WHETHER A WAIVER OF LIENS HAS TAKEN
PLACE, THE BANKRUPTCY COURT MUST ACCORDINGLY LOOK TO THE EQUITIES
INVOLVED AS WELL AS TO THE INTENTION OF THE PARTIES.  A WAIVER MAY BE
INEQUITABLE OR UNFAIR TO THE SECURED CREDITOR; THE RECEIPT OF DIVIDENDS
MAY NOT HAVE CAUSED PERMANENT INJURY TO THE UNSECURED CREDITORS; THE
DIVIDENDS MAY HAVE BEEN RECEIVED UNDER A MISTAKE OF LAW OR FACT OR
PURSUANT TO COURT APPROVAL; THE OBJECTING PARTY MAY BE ESTOPPED FROM
QUESTIONING THE VALIDITY OF THE LIENS.  SUCH EQUITABLE CONSIDERATIONS
MAY WELL BE DECISIVE OF A WAIVER OR FORFEITURE IN A PARTICULAR CASE. 
IT IS AT ONCE EVIDENT IN THIS CASE THAT THE JUDGMENT LIEN CREDITORS
RECEIVED DIVIDENDS FROM THE GENERAL FUND IN GOOD FAITH AND WITHOUT ANY
INTENT TO WAIVE THEIR LIENS.  THE PRINCIPAL ASSET OF THE ESTATE WAS THE
INTEREST IN THE COAL LANDS AND IT WAS THAT INTEREST TO WHICH THE LIENS
ATTACHED.  REPRESENTATIVES OF VARIOUS GENERAL CREDITORS BELIEVED THAT
IT WOULD BE TO THEIR ADVANTAGE TO HAVE THIS INTEREST REMAIN INTACT,
WITHOUT BEING LIQUIDATED IN WHOLE OR IN PART IN ORDER TO SATISFY THE
LIENS.  THEIR THOUGHT WAS THAT BY MAINTAINING UNDIMINISHED THE
ROYALTIES AND RENTALS FROM THIS INTEREST THE UNSECURED CLAIMS COULD
MORE RAPIDLY BE SATISFIED.  TO THAT END IT WAS PROPOSED THAT THE
JUDGMENT LIEN CREDITORS REFRAIN FROM IMMEDIATE LIQUIDATION OF THEIR
CLAIMS AND SHARE IN THE DIVIDENDS FROM THE GENERAL FUND, A FUND WHICH
INCLUDED THE ROYALTIES AND RENTALS FROM THE INTEREST IN THE COAL
LANDS.  THE JUDGMENT LIEN CREDITORS ACCEPTED THIS PROPOSAL, BEING
WILLING TO POSTPONE ANY IMMEDIATE REALIZATION OF THEIR SECURITY.  BUT
THEY DID SO WITH THE DISTINCT UNDERSTANDING THAT THEIR LIENS WERE NOT
FORFEITED AND THEY TOOK PAINS TO RENEW THE UNDERLYING JUDGMENTS EVERY
SUCCEEDING FIVE YEARS IN ORDER TO KEEP THE LIENS ALIVE.  THERE IS THUS
ABSENT ANY ELEMENT OF AN INTENTIONAL WAIVER OF THE LIENS OR ANY ACTION
INCONSISTENT WITH A DESIRE TO RETAIN THE LIENS IN THE CIRCUMSTANCES
SURROUNDING THE RECEIPT OF THE DIVIDENDS BY THE JUDGMENT LIEN
CREDITORS.  CF. THOMAS V. TAGGART, 209 U.S. 385; IN RE KAPLAN & MYERS,
241 F. 459. 

NOR DO WE PERCEIVE ANY EQUITABLE REASON WHY THESE LIENS SHOULD BE
DECLARED FORFEITED.  THE INCOMPLETE RECORD IN THIS CASE DOES NOT
INDICATE WHETHER THE REFEREE OR THE BANKRUPTCY COURT EVER GAVE FORMAL
APPROVAL TO THE AGREEMENT UNDER WHICH THE JUDGMENT LIEN CREDITORS
RECEIVED DIVIDENDS ALONG WITH THE UNSECURED CREDITORS.  BUT THE
BANKRUPTCY PROCEEDINGS WENT FORWARD FOR MORE THAN TWELVE YEARS AS IF
SUCH APPROVAL HAD BEEN GIVEN, AUTHORIZATION BEING GIVEN FOR THE
DISTRIBUTION OF NUMEROUS DIVIDENDS PURSUANT TO THE PLAN.  CERTAINLY THE
AGREEMENT HAD THE IMPLIED, IF NOT THE EXPRESS, BLESSING OF THE REFEREE
AND THE BANKRUPTCY COURT.  HENCE THE JUDGMENT LIEN CREDITORS CANNOT BE
ACCUSED OF HAVING PARTICIPATED IN A PLAN WHICH WAS UNKNOWN TO, OR
DISAPPROVED BY, THOSE RESPONSIBLE FOR THE PROPER ADMINISTRATION OF THE
PROCEEDINGS.  A FORFEITURE OF THE LIENS WOULD ONLY PENALIZE UNFAIRLY
THE JUDGMENT LIEN CREDITORS, WHO JOINED THE PLAN IN GOOD FAITH AND
WITHOUT ANY APPARENT INTENTION OF HARMING OTHERS OR OF SECURING ANY
UNDUE ADVANTAGE FOR THEMSELVES. 

IT IS FURTHER SIGNIFICANT THAT THE PLAN WAS PROPOSED BY AN ATTORNEY
FOR CHASE NATIONAL BANK, THE GENERAL CREDITOR NOW OBJECTING. 
APPARENTLY NOT ALL THE GENERAL CREDITORS WERE PRESENT OR REPRESENTED AT
THE MEETING ON DECEMBER 31, 1929, WHEN THE PROPOSAL WAS MADE AND
ACCEPTED.  BUT THE AGREEMENT, WITH ITS VARIOUS DIVIDEND DISTRIBUTIONS
TAKING PLACE BETWEEN 1935 AND 1942, MUST HAVE COME TO THE ATTENTION OF
ALL THE GENERAL CREDITORS SOONER OR LATER; YET NONE OF THEM RAISED ANY
OBJECTION TO THE VARIOUS DISTRIBUTIONS OR TO THE AGREEMENT DURING THIS
LONG PERIOD OF TIME.  NO REASON SUGGESTS ITSELF WHY ANY OF THESE
GENERAL CREDITORS SHOULD NOW BE PERMITTED TO QUESTION THE DIVIDENDS
RECEIVED IN THE PAST BY THE JUDGMENT LIEN CREDITORS OR TO DEMAND THAT
THE LIENS BE DECLARED FORFEITED BECAUSE OF THE RECEIPT OF SUCH
DIVIDENDS.  ESPECIALLY IS THIS SO AS TO CHASE NATIONAL BANK.  AS THE
DISTRICT COURT NOTED, 61 F.SUPP.  AT 152, ITS COUNSEL RECOMMENDED AND
HAD FULL KNOWLEDGE OF THE AGREEMENT; AND CHASE HAD KNOWLEDGE OF THE
SUBSEQUENT DIVIDEND DISTRIBUTIONS, TO WHICH IT DID NOT DEMUR.  AT THIS
LATE STAGE, IT IS EQUITABLY ESTOPPED FROM RAISING ANY OBJECTION TO THE
VALIDITY OF THE LIENS ON THE BASIS OF THE OPERATION OF THE PLAN WHICH
IT PROPOSED.  CF. MERCHANTS BANK V. SEXTON, 228 U.S. 634; IN RE
NATIONAL PUBLIC SERVICE CORPORATION, 68 F.2D 859; IN RE AMERICAN S.S.
NAV. CO., 14 F.SUPP.  106. 

MOREOVER, THE RECORD DOES NOT INDICATE THAT ANY PERMANENT INJURY TO
CHASE NATIONAL BANK OR TO THE OTHER GENERAL CREDITORS RESULTED FROM THE
OPERATION OF THE PLAN.  THE WHOLE SCHEME WAS ADOPTED WITH THE IDEA THAT
THEY WOULD BE BENEFITED AND WE CANNOT SAY THAT THIS PURPOSE HAS FAILED
OF ACHIEVEMENT.  HAVING PROPOSED AND ACQUIESCED IN THE PLAN, THE CHASE
NATIONAL BANK CANNOT NOW BE HEARD TO COMPLAIN OF ANY RESULTING INJURY,
ESPECIALLY AN INJURY THAT IS NOT APPARENT IN THE RECORD. 

WE CONCLUDE FROM THESE VARIOUS CONSIDERATIONS THAT THE LIENS SHOULD
BE HELD TO BE VALID AND IN EXISTENCE DESPITE THE FAILURE TO FOLLOW THE
PROVISIONS OF SEC. 57(H) AND DESPITE THE DISTRIBUTION OF DIVIDENDS
CONTRARY TO SEC. 65(A).  THERE WAS NEVER ANY INTENTION TO WAIVE THE
SECURITY AND THOSE WHO MIGHT HAVE OBJECTED TO THE DISTRIBUTIONS ARE NOW
ESTOPPED.  BUT IN VIEW OF THE FACT THAT THE BANKRUPTCY PROCEEDINGS HAVE
BEEN UNDULY PROLONGED FOR OVER TWENTY YEARS, THE BANKRUPTCY COURT
SHOULD NOW TAKE STEPS TO WIND UP THE ESTATE IN ACCORDANCE WITH THE
PROVISIONS OF THE BANKRUPTCY ACT.  THOSE PROVISIONS ARE DESIGNED TO
BRING ABOUT THE SPEEDY DISTRIBUTION OF THE BANKRUPT'S ASSETS, A
DISTRIBUTION OF THE TYPE WHICH DEFINITELY HAS NOT OCCURRED IN THIS
CASE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE CASE
IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  REVERSED. 

MR. JUSTICE FRANKFURTER IS OF OPINION THAT THE ORDER OF THE DISTRICT
COURT SHOULD BE RESTORED ON THE GROUND THAT THE CREDITORS ENTERED INTO
AN AGREEMENT WHICH WAS NOT OBJECTIONABLE UNDER SEC. 57(H) OF THE
BANKRUPTCY ACT, WHEREBY THE LIENS OF THE PETITIONERS WERE SAVED. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :





















TRAILMOBILE CO. V. WHIRLS, 331 U.S. 40 


NO. 85.  ARGUED DECEMBER 19, 1946.  - DECIDED APRIL 14, 1947.  - 154
F.2D 866, REVERSED. 


1.  UNDER SEC. 8(C) OF THE SELECTIVE TRAINING & SERVICE ACT OF 1940, A
VETERAN'S STATUTORY RIGHT OF SENIORITY - INSOFAR AS IT GIVES A
REEMPLOYED VETERAN A PREFERRED STANDING OVER NON-VETERAN EMPLOYEES
HAVING IDENTICAL SENIORITY RIGHTS - DOES NOT EXTEND BEYOND THE
EXPIRATION OF THE FIRST YEAR OF REEMPLOYMENT.  PP. 51-61. 

2.  A QUESTION OF RES JUDICATA ARISING FROM PRIOR LITIGATION IN STATE
COURTS AND DECIDED ADVERSELY TO PETITIONERS BY THE COURTS BELOW, BUT IN
RESPECT OF WHICH NO ERROR WAS ASSIGNED IN THE PETITION FOR CERTIORARI,
IS NOT PROPERLY BEFORE THIS COURT.  P. 48. 

3.  A PROCEEDING IN WHICH A REEMPLOYED VETERAN SOUGHT TO ESTABLISH
SENIORITY RIGHTS UNDER SEC. 8(C) OF THE SELECTIVE TRAINING & SERVICE
ACT, AND IN WHICH THE DECISION OF THE COURT BELOW WAS IN HIS FAVOR,
HELD NOT MOOT ALTHOUGH, BECAUSE OF PROCEDURES INVOKED BY A LABOR UNION,
HE HAS NOT BEEN AT WORK BUT HAS BEEN ON LEAVE OF ABSENCE WITH FULL
PAY.  PP. 48-49. 

4.  THE REMAND IN THIS CASE WILL BE SO FRAMED AS TO PRECLUDE
FORECLOSURE, BY POSSIBLE FUTURE APPLICATION OF THE DOCTRINE OF RES
JUDICATA, OF SUCH CAUSE OF ACTION AS THE EMPLOYEE MAY HAVE IF HE HAS
BEEN UNLAWFULLY EXPELLED, SUSPENDED OR OTHERWISE DEALT WITH BY THE
UNION FOR ASSERTING HIS LEGAL RIGHTS.  PP. 50-51, 61-62. 

TRAILMOBILE COMPANY ET AL. V. WHIRLS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

RESPONDENT BROUGHT SUIT IN THE DISTRICT COURT AGAINST HIS EMPLOYER,
ASSERTING RIGHTS UNDER THE SELECTIVE TRAINING & SERVICE ACT OF 1940.  A
LABOR ORGANIZATION WAS PERMITTED TO INTERVENE.  THE DISTRICT COURT GAVE
JUDGMENT FOR RESPONDENT.  64 F.SUPP.  713.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  154 F.2D 866.  THIS COURT GRANTED CERTIORARI.  328
U.S. 831.  REVERSED, P. 61. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S.
275, PRESENTS A PROBLEM IN THE SENIORITY STANDING OF A REEMPLOYED
VETERAN.  IT ARISES UNDER SEC. 8 OF THE SELECTIVE TRAINING AND SERVICE
ACT OF 1940.  FN1  THE FISHGOLD CASE HELD THAT UNDER THE ACT A VETERAN
IS ENTITLED TO BE RESTORED TO HIS FORMER POSITION PLUS SENIORITY WHICH
WOULD HAVE ACCUMULATED BUT FOR HIS INDUCTION INTO THE ARMED FORCES. 
FN2  HERE THE QUESTION CONCERNS THE DURATION OF THE VETERAN'S RESTORED
STATUTORY SENIORITY STANDING.  THE PETITIONERS MAINTAIN THAT IT ENDS
WITH THE FIRST YEAR OF HIS REEMPLOYMENT.  RESPONDENT'S POSITION IS THAT
IT LASTS AS LONG AS THE EMPLOYMENT CONTINUES.  FN3  A SUGGESTION HAS
ALSO BEEN MADE THAT OCCURRENCES TAKING PLACE SINCE THE DECISION IN THE
CIRCUIT COURT OF APPEALS MAY HAVE RENDERED THE CAUSE MOOT. 

THE CASE IS AN AFTERMATH OF A GENERAL CONTROVERSY OVER SENIORITY
RIGHTS WHICH AROSE AMONG THE EMPLOYEES OF TWO CORPORATIONS FOLLOWING
THEIR CONSOLIDATION ON JANUARY 1, 1944.  BECAUSE OF THE RELATION OF THE
GENERAL CONTROVERSY TO THIS LITIGATION A DETAILED STATEMENT OF THE
FACTS BECOMES NECESSARY.  PRIOR TO THEIR CONSOLIDATION THE HIGHLAND
BODY MANUFACTURING COMPANY HAD BEEN A WHOLLY OWNED SUBSIDIARY OF THE
PETITIONER, THE TRAILMOBILE COMPANY.  THE TWO CORPORATIONS MANUFACTURED
THE SAME COMMODITIES IN SEPARATE PLANTS IN CINCINNATI, OHIO.  FN4
DURING 1943 UNDER THE PLAN OF CONSOLIDATION THE SUPPLIES, EQUIPMENT AND
PERSONNEL OF HIGHLAND WERE TRANSFERRED GRADUALLY TO THE PLANT OF
TRAILMOBILE.  IT TOOK OVER THE ASSETS AND BUSINESS OF HIGHLAND AND
ASSUMED ALL ITS OBLIGATIONS.  THE EMPLOYEES OF HIGHLAND WERE
TRANSFERRED TO THE PAYROLL OF TRAILMOBILE AS OF JANUARY 1, 1944, WHEN
THE CONSOLIDATION BECAME FULLY EFFECTIVE.  FN5 

THE EMPLOYEES OF BOTH COMPANIES HAD BEEN AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR.  51 N.L.R.B. 1106, 1108.  AT THE TIME OF THE
CONSOLIDATION THE HIGHLAND GROUP, INCLUDING RESPONDENT, CLAIMED
SENIORITY WITH TRAILMOBILE AS OF THE DATES OF THEIR EMPLOYMENT BY
HIGHLAND.  THE FORMER TRAILMOBILE EMPLOYEES OPPOSED THIS, MAINTAINING
THAT THE HIGHLAND PERSONNEL SHOULD BE CONSIDERED AS NEW EMPLOYEES OF
TRAILMOBILE, WITH SENIORITY DATING ONLY FROM JANUARY 1, 1944.  THIS
DISPUTE WAS SUBMITTED TO NATIONAL REPRESENTATIVES OF THE A.F. OF L.
THEY DECIDED IN FAVOR OF THE HIGHLAND GROUP. 

THE FORMER TRAILMOBILE EMPLOYEES WERE DISSATISFIED WITH THIS
DECISION.  THEY OUTNUMBERED THE HIGHLAND CLAIMANTS ABOUT TEN TO ONE. 
ACCORDINGLY, REORGANIZING AS A UNIT OF THE CONGRESS OF INDUSTRIAL
ORGANIZATIONS, THEY REQUESTED RECOGNITION AS THE EXCLUSIVE BARGAINING
AGENT OF TRAILMOBILE'S EMPLOYEES, INCLUDING THE HIGHLAND TRANSFEREES. 
AN ELECTION WAS HELD UNDER THE AUSPICES OF THE NATIONAL LABOR RELATIONS
BOARD, IN WHICH THE NEW C.I.O. LOCAL WAS CHOSEN AS BARGAINING
REPRESENTATIVE FOR A UNIT COMPOSED OF BOTH GROUPS.  FN6 

TRAILMOBILE ACCORDINGLY NEGOTIATED WITH THE C.I.O. AND IN JULY, 1944,
A COLLECTIVE BARGAINING AGREEMENT WAS CONCLUDED, EFFECTIVE AS OF JUNE
21, 1944.  IT PROVIDED THAT THE SENIORITY RIGHTS OF FORMER HIGHLAND
EMPLOYEES SHOULD BE FIXED AS OF JANUARY 1, 1944, REGARDLESS OF THE
DATES OF THEIR ORIGINAL EMPLOYMENT BY HIGHLAND. 

RESPONDENT WHIRLS HAD BEEN IN HIGHLAND'S EMPLOY FROM 1935 TO 1942,
WHEN HE ENTERED MILITARY SERVICE.  HE WAS HONORABLY DISCHARGED AND
RETURNED TO HIS WORK WITH HIGHLAND IN MAY, 1943.  FN7 HE WAS THUS AMONG
THE EMPLOYEES TRANSFERRED FROM HIGHLAND TO TRAILMOBILE AS OF JANUARY 1,
1944, WHOSE SENIORITY WAS REDUCED SO AS TO START AS OF THAT DATE BY THE
JULY, 1944, COLLECTIVE AGREEMENT WITH THE C.I.O. 

THE HIGHLAND GROUP CONTESTED THE AGREEMENT'S VALIDITY IN THE OHIO
COURTS IN A CLASS SUIT BROUGHT JULY 17, 1944, BY HESS, ONE OF THEIR
NUMBER, ON BEHALF OF HIMSELF AND 178 OTHERS SIMILARLY SITUATED.  THESE
INCLUDED 104 PERSONS ACTUALLY AT WORK, VETERANS AND NONVETERANS, AMONG
WHOM WAS WHIRLS, AND 74 EMPLOYEES THEN IN THE ARMED FORCES.  THE
PETITION ALLEGED THAT TRAILMOBILE THEN HAD ABOUT 500 EMPLOYEES IN
MILITARY SERVICE, OF WHOM APPARENTLY SOME 426 WERE OUTSIDE THE HIGHLAND
GROUP. 

THE THEORY OF THE CLASS SUIT WAS THAT, ALTHOUGH THE PLAINTIFFS WERE
NOT THEN MEMBERS OF THE C.I.O., THE COLLECTIVE BARGAINING AGENT WAS THE
REPRESENTATIVE OF ALL EMPLOYEES IN THE UNIT AND HENCE COULD NOT LEGALLY
DEPRIVE A MINORITY OF THE EMPLOYEES WHICH IT REPRESENTED OF THEIR
ACCRUED SENIORITY AND OTHER RIGHTS BY ANY COLLECTIVE AGREEMENT WITH THE
COMPANY.  FN8  THE PETITION ALLEGED THAT THE COLLECTIVE AGREEMENT
ARBITRARILY AND UNLAWFULLY DEPRIVED THE PLAINTIFFS OF THEIR "VESTED
INDIVIDUAL RIGHTS" AND ASKED MANDATORY INJUNCTIVE RELIEF RESTORING EACH
TO SENIORITY STATUS AS OF THE DATE OF HIS EMPLOYMENT BY HIGHLAND.  THE
COMPANY AND THE COLLECTIVE AGENT STOOD UPON THE TERMS OF THE COLLECTIVE
AGREEMENT AND THE AGENT'S AUTHORITY AS CERTIFIED REPRESENTATIVE TO MAKE
IT AS JUSTIFYING THE ACTION TAKEN UNDER IT. 

THE OHIO COURTS HELD AGAINST THE PLAINTIFFS IN THE ACTION, SUSTAINING
THE POSITION OF THE COMPANY AND THE UNION.  FN9  THEY HELD IN EFFECT
THAT THE SENIORITY RIGHTS IN ISSUE AROSE EXCLUSIVELY FROM CONTRACT,
MAKING NO REFERENCE WHATEVER TO SEC. 8 OF THE SELECTIVE TRAINING AND
SERVICE ACT OR ANY QUESTION RELATING TO IT; FN10  THAT THE COMPANY AND
THE COLLECTIVE REPRESENTATIVE WERE LAWFULLY EMPOWERED TO ENTER INTO THE
CONTRACT FIXING THOSE RIGHTS AS OF JANUARY 1, 1944; THAT THE TRIAL
COURT WAS NOT AUTHORIZED IN ITS OWN LANGUAGE, "TO CONTRACT FOR THE
(PLAINTIFF) OR MAKE A NEW CONTRACT," SINCE THAT POWER "EXISTS ONLY IN
THE EXCLUSIVE BARGAINING AGENT, UNDER THE PROVISIONS OF THE NATIONAL
LABOR ACT SO LONG AS THAT AGENT ACTS WITHIN THE LAW."  FN11 

ACCORDINGLY THE SUIT WAS DISMISSED.  THE RECORD HERE DOES NOT
DISCLOSE THE DATE OF THE TRIAL COURT'S JUDGMENT.  BUT ITS DECISION WAS
AFFIRMED BY THE OHIO COURT OF APPEALS BEFORE OCTOBER 2, 1945, WHEN THE
UNION'S ANSWER WAS FILED IN THE PRESENT CAUSE; AND THE CASE HAD BEEN
FINALLY DETERMINED AGAINST THE PLAINTIFF'S CLAIMS BY THE SUPREME COURT
OF OHIO PRIOR TO OCTOBER 15, 1945.  FN12 

THE RECORD IS NOT ENTIRELY CLEAR CONCERNING THE EXACT CHARACTER AND
SEQUENCE OF EVENTS BETWEEN JULY 15, 1944, WHEN WHIRLS AND OTHER FORMER
HIGHLAND EMPLOYEES WERE NOTIFIED THAT THEIR SENIORITY STATUS WOULD BE
CHANGED, AND SEPTEMBER 18, 1945, WHEN THE PRESENT SUIT WAS FILED IN THE
DISTRICT COURT.  APPARENTLY, AFTER THE NOTICE WAS GIVEN, SELECTIVE
SERVICE OFFICIALS INTERVENED IN BEHALF OF WHIRLS AND OTHER VETERANS,
FN13  ALTHOUGH HIS ALLEGATION THAT HIS SENIORITY WAS RESTORED AS A
RESULT OF THAT INTERVENTION WAS DENIED BOTH BY THE COMPANY AND BY THE
UNION.  THERE IS AMBIGUITY ALSO CONCERNING WHETHER THE CLOSED-SHOP
PROVISION APPEARED IN THE 1944 AGREEMENT OR ONLY IN THE 1945 ONE
BETWEEN THE COMPANY AND THE C.I.O.  THE FACTS OF RECORD, HOWEVER, ARE
MORE CONSISTENT WITH THE VIEW THAT IT WAS NOT INTRODUCED UNTIL THE
LATTER YEAR. 

AT ANY RATE, IN JUNE OR JULY, 1945, WHIRLS JOINED THE C.I.O. UNION,
THUS COMPLYING WITH THE CLOSED-SHOP PROVISIONS OF THE COLLECTIVE
AGREEMENT.  AND UNTIL ABOUT SEPTEMBER 3 OF THAT YEAR HE CONTINUED TO BE
EMPLOYED IN THE PAINTING DEPARTMENT, WHERE HE HAD THE HIGHEST SENIORITY
AND WAS DRAWING PAY OF $1.05 PER HOUR.  ON OR ABOUT THAT DATE, HOWEVER,
THE COMPANY TRANSFERRED HIM TO THE STOCK DEPARTMENT, THREATENING TO
REDUCE HIS PAY TO $0.83 PER HOUR AND ALSO TO REDUCE HIS SENIORITY
RATING IN ACCORDANCE WITH THE COLLECTIVE AGREEMENT. 

WHETHER OR NOT THE THREATENED REDUCTIONS ACTUALLY TOOK EFFECT IS NOT
CLEAR FROM THE RECORD, FOR NOT LONG AFTERWARD WHIRLS WAS TRANSFERRED
AGAIN, TO A POSITION PAYING $1.18 PER HOUR IN ANOTHER DEPARTMENT.  BUT
BEFORE THIS WAS DONE, REPRESENTED BY THE UNITED STATES ATTORNEY,  FN14
HE BROUGHT THIS SUIT IN THE DISTRICT COURT UNDER THE SELECTIVE TRAINING
AND SERVICE ACT.  HE SOUGHT TO ENJOIN THE THREATENED DECREASE IN PAY
AND CHANGE IN SENIORITY STATUS.  HE ALSO ASKED FOR RESTORATION TO HIS
FORMER POSITION IN THE PAINTING DEPARTMENT AND TO HIS SENIORITY AS
FIXED BY HIS ORIGINAL EMPLOYMENT WITH HIGHLAND.  THE EMPLOYER ANSWERED
AND THE LOCAL C.I.O. UNION INTERVENED IN SUPPORT OF THE EMPLOYER'S
POSITION.  HOWEVER, SINCE WHIRLS HAD BEEN TRANSFERRED AGAIN BEFORE THE
CASE CAME ON FOR HEARING, THE PARTIES AGREED AT THE HEARING TO LIMIT
THE ISSUES TO THOSE AFFECTING THE QUESTION OF SENIORITY.  THIS WAS
PRESENTED IN TWO FORMS, (1) ON THE MERITS, THE FACTS BEING
SUBSTANTIALLY STIPULATED; (2) ON THE QUESTION WHETHER THE STATE COURT
PROCEEDING IN THE CLASS SUIT HAD DETERMINED THE SENIORITY RIGHTS OF
WHIRLS, MAKING THE ISSUE NOW RAISED RES JUDICATA FOR THIS SUIT.  SEE
ANGEL V. BULLINGTON, 330 U.S. 183. 

TAKING RESPONDENT'S VIEW IN BOTH RESPECTS, THE DISTRICT COURT
RENDERED JUDGMENT IN HIS FAVOR.  THE CIRCUIT COURT OF APPEALS FOR THE
SIXTH CIRCUIT AFFIRMED THE DISTRICT COURT'S JUDGMENT.  154 F.2D 866. 
BESIDES HOLDING RES JUDICATA INAPPLICABLE, BOTH COURTS TOOK THE VIEW,
CONTRARY TO THAT LATER REACHED HERE IN THE FISHGOLD CASE, THAT THE
REEMPLOYED VETERAN WAS ENTITLED TO "SUPERSENIORITY" FOR ONE YEAR
FOLLOWING HIS REEMPLOYMENT,  FN15  AND WENT ON TO HOLD THAT HIS
STATUTORY PREFERRED STATUS WITH RESPECT TO SENIORITY AND OTHER
INCIDENTS OF HIS EMPLOYMENT DID NOT END WITH THE EXPIRATION OF THAT
YEAR.  BECAUSE OF THE BEARING OF THE FISHGOLD DECISION UPON THE PROBLEM
AND THE IMPORTANCE OF THE QUESTION PRESENTED, WE GRANTED CERTIORARI. 
328 U.S. 831. 

                                  I. 

AT THE OUTSET IT IS IMPORTANT, IN VIEW OF CERTAIN QUESTIONS WHICH
HAVE BEEN INJECTED BEYOND THE ISSUES PRESENTED FOR DECISION, TO STATE
EXPLICITLY WHAT IS NOT BEFORE US.  IN THE FIRST PLACE, WE ARE NOT
REQUIRED TO DETERMINE WHETHER THE CLASS SUIT IN THE STATE COURTS
CONSTITUTED AN ADJUDICATION OF THE RIGHTS OF THE PARTIES INVOLVED IN
THIS LITIGATION.  THAT QUESTION WAS PRESENTED TO THE DISTRICT COURT AND
THE CIRCUIT COURT OF APPEALS.  BOTH DETERMINED IT ADVERSELY TO
PETITIONERS, BUT NO ERROR WAS ASSIGNED TO THIS RULING IN THE PETITION
FOR CERTIORARI.  THE QUESTION IS THEREFORE NOT BEFORE THIS COURT AND WE
EXPRESS NO OPINION CONCERNING IT. 

THE VIEW ENTERTAINED IN THIS RESPECT BY THE DISTRICT COURT AND THE
CIRCUIT COURT OF APPEALS, HOWEVER, HAS ASSUMED TANGENTAL BEARING IN
CONNECTION WITH THE SUGGESTION THAT THE CAUSE MAY HAVE BECOME MOOT.  IN
ITS MEMORANDUM FILED UPON THE APPLICATION FOR CERTIORARI AND IN ITS
BRIEF, THE GOVERNMENT CALLS ATTENTION TO CERTAIN EVENTS NOT APPEARING
OF RECORD BUT TAKING PLACE AFTER THE DECISION OF THE COURT OF APPEALS. 
THOUGH SUGGESTING THE FACTS FOR OUR ATTENTION, THE GOVERNMENT MAINTAINS
THAT THEY DO NOT RENDER THE CONTROVERSY MOOT.  THIS COURT, OF COURSE,
DOES NOT RENDER ADVISORY OPINIONS.  AND SINCE THE SUGGESTION OF THE
FACTS NOT ONLY IS SUFFICIENT TO RAISE THE QUESTION OF MOOTNESS BUT HAS
INJECTED OTHERS NOT COMPREHENDED IN THE ISSUES, IT IS NECESSARY TO
DISPOSE OF THE MATTER BEFORE UNDERTAKING A DETERMINATION OF THE
QUESTION OTHERWISE PROPERLY HERE FOR DECISION. 

IT IS SUGGESTED AND NOT DENIED THAT UNDER DATE OF APRIL 10, 1946,
RESPONDENT WAS NOTIFIED BY THE COLLECTIVE AGENT THAT HE HAD BEEN
CHARGED WITH CONDUCT UNBECOMING A MEMBER OF THE UNION, NAMELY, IN
BRINGING THIS SUIT WITHOUT EXHAUSTING THE REMEDIES PROVIDED BY ITS
CONSTITUTION AND BY-LAWS; IN THEREBY VIOLATING THE COLLECTIVE
AGREEMENT; IN NEGOTIATING WITH THE EMPLOYER THROUGH OTHERS THAN THE
UNION; AND IN CONDUCTING HIMSELF IN A MANNER HARMFUL TO ITS INTERESTS
AND THOSE OF ITS MEMBERS.  ACCORDINGLY, ON APRIL 15, 1946, THE UNION
REQUESTED TRAILMOBILE TO SUSPEND WHIRLS FROM WORK.  IN CONSEQUENCE, THE
COMPANY DIRECTED HIM NOT TO REPORT FOR DUTY.  SINCE THEN, HOWEVER, IT
HAS CONTINUED TO KEEP HIM ON THE PAYROLL, ON LEAVE OF ABSENCE WITH FULL
PAY.  ALTHOUGH THE GOVERNMENT URGES THAT WHIRLS THUS CONTINUES IN THE
COMPANY'S EMPLOY AND CONSEQUENTLY THE CASE IS NOT MOOT, ITS SUGGESTION
OF THE FACTS HAS OVERLAID THE ONLY ISSUE BROUGHT HERE BY THE PETITION
FOR CERTIORARI WITH QUESTIONS OF UNLAWFUL DISCRIMINATION ALLEGEDLY
ARISING OUT OF THE SUGGESTED FACTS, UNDER THE DECISIONS IN STEELE V.
LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192; TUNSTALL V. BROTHERHOOD OF
LOCOMOTIVE FIREMEN AND ENGINEMEN, 323 U.S. 210; AND WALLACE CORP. V.
NATIONAL LABOR RELATIONS BOARD, 323 U.S. 248.  FN16 

THE FACTS THUS PUT FORWARD HAVE NO PROPER BEARING IN THIS CASE
OTHERWISE THAN TO SUGGEST THE QUESTION OF MOOTNESS AND TO REQUIRE THAT
ANY DECISION WHICH IS MADE UPON THE MERITS HERE BE MADE WITHOUT
PREJUDICE TO THE FUTURE ASSERTION OF ANY RIGHTS OF RESPONDENT WHICH MAY
HAVE BEEN VIOLATED BY THE CONDUCT SET FORTH.  WE AGREE THAT IN THE
CIRCUMSTANCES RELATED HE REMAINS AN EMPLOYEE OF THE COMPANY AND THE
CAUSE IS NOT MOOT.    WE ALSO AGREE THAT THE QUESTION OF UNLAWFUL
DISCRIMINATION IS NOT PROPERLY BEFORE US FOR DECISION.  FN17  THAT
QUESTION, INSOFAR AS IT AROSE FROM EVENTS PRIOR TO THIS LITIGATION, WAS
INVOLVED IN THE OHIO CLASS SUIT WITHOUT REFERENCE, IT WOULD SEEM, TO
SEC. 8 OR ITS POSSIBLE EFFECTS.  AND BECAUSE THE PETITION FOR
CERTIORARI, AS WE HAVE NOTED, ASSIGNED NO ERROR TO THE COURT OF
APPEALS' RULING ON THE ISSUE OF RES JUDICATA ARISING FROM THE OUTCOME
OF THE CLASS SUIT, WE ARE NOT AT LIBERTY NOW TO CONSIDER THE EFFECT OF
THAT LITIGATION OR THE ISSUES OF DISCRIMINATION EMBRACED IN IT.
INSOFAR AS ANY QUESTION OF UNLAWFUL DISCRIMINATION MAY BE THOUGHT TO
ARISE FROM THE FACTS SAID TO HAVE TAKEN PLACE AFTER THE DECISION OF THE
CIRCUIT COURT OF APPEALS, WE ARE ALSO NOT FREE AT THIS TIME TO CONSIDER
OR DETERMINE SUCH AN ISSUE.  AS THE BRIEF OF THE GOVERNMENT IN
RESPONDENT'S BEHALF PERTINENTLY STATES, "THESE POINTS WERE NOT RAISED
ON RESPONDENT'S BEHALF IN THE LOWER COURTS, AND NO EVIDENCE WAS
INTRODUCED BY ANY PARTY ON THE ISSUE OF UNFAIR DISCRIMINATION.  CF.
HORMEL V. HELVERING, 312 U.S. 552, 556.  IN VIEW OF THAT FACT, AND OF
THE HESS LITIGATION, WE BELIEVE THAT IT WOULD BE INAPPROPRIATE, AT THIS
STAGE, TO ARGUE THESE ISSUES." 

WHOLLY ASIDE FROM ANY QUESTION OF POWER, THIS DISCLAIMER ON BEHALF OF
THE PARTY AFFECTED IS A SUFFICIENT REASON TO JUSTIFY REFUSAL TO INJECT
SUCH AN ISSUE HERE OR TO VOLUNTEER AID NOT SOUGHT.  WE THEREFORE ARE
REQUIRED TO SAY NO MORE CONCERNING THE MATTER NOW THAN THAT, IF
RESPONDENT HAS BEEN UNLAWFULLY EXPELLED, SUSPENDED OR OTHERWISE DEALT
WITH BY THE UNION FOR ASSERTING HIS LEGAL RIGHTS, THE LAW HAS PROVIDED
REMEDIES FOR SUCH INJURIES AND THEY MAY BE REDRESSED IN APPROPRIATE
PROCEEDINGS DESIGNED FOR THAT PURPOSE UPON PROOF OF THE FACTS
CONSTITUTING THE WRONG AND DUE CONSIDERATION OF THE LEGAL ISSUES THEY
PRESENT.  TO ASSURE THIS POSSIBILITY, HOWEVER, THE REMAND WHICH BECOMES
NECESSARY IN THIS CAUSE ON THE MERITS WILL BE SO FRAMED AS TO PRECLUDE
ANY FORECLOSURE OF SUCH RIGHTS BY POSSIBLE FUTURE APPLICATION OF THE
DOCTRINE OF RES JUDICATA ARISING FROM THIS DETERMINATION. 

SINCE, MOREOVER, IN THE VIEW OF THE DISTRICT COURT AND APPARENTLY OF
THE COURT OF APPEALS, THE OHIO CLASS SUIT WAS DISPOSITIVE OF ISSUES OF
UNLAWFUL DISCRIMINATION ARISING OUT OF THE FACTS PRESENTED IN THAT
LITIGATION WITHOUT REFERENCE TO SEC. 8,  FN18  IT MAY BE ADDED THAT THE
OHIO DETERMINATION COULD NOT APPLY, OF COURSE, TO SUCH DISCRIMINATION
TAKING PLACE BY VIRTUE OF LATER EVENTS. 

WE TURN THEREFORE TO CONSIDERATION OF THE SOLE QUESTION PRESENTED ON
THE MERITS, NAMELY, WHETHER UNDER SEC. 8 THE VETERAN'S RIGHT TO
STATUTORY SENIORITY EXTENDS INDEFINITELY BEYOND THE EXPIRATION OF THE
FIRST YEAR OF HIS REEMPLOYMENT, BEING UNAFFECTED BY THAT EVENT AS LONG
AS THE EMPLOYMENT ITSELF CONTINUES. 

                                 II. 

THE RELEVANT PORTIONS OF SECS. 8(A) AND 8(B) ARE SET OUT IN THE
MARGIN.  FN19  BUT WE ARE CONCERNED PARTICULARLY WITH SEC. 8(C), WHICH
READS: 

"ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE
CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS
PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO
RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN
INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO
ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR
LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON
WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH
POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION." 

THE GOVERNMENT ARGUES ON RESPONDENT'S BEHALF THAT THE CORRECT MEANING
OF SEC. 8, AND PARTICULARLY OF SUBSECTION (C), IS THAT UPON
REEMPLOYMENT THE VETERAN IS ENTITLED TO RETAIN INDEFINITELY HIS PREWAR
PLUS SERVICE-ACCUMULATED SENIORITY.  FN20  UNDER THE STATUTE, IT SAYS,
THIS SENIORITY CANNOT BE TAKEN AWAY BY A COLLECTIVE BARGAINING
AGREEMENT OR BY THE EMPLOYER,  FN21 EITHER DURING THE YEAR IN WHICH THE
STATUTE INSURES THE VETERAN AGAINST DISCHARGE WITHOUT CAUSE OR
THEREAFTER WHILE THE EMPLOYMENT CONTINUES.  FN22  SUPPORT FOR THIS VIEW
IS THOUGHT TO BE DERIVED FROM THE SYNTAX OF THE STATUTORY LANGUAGE AND
FROM THE LEGISLATIVE HISTORY. 

IT IS ARGUED THAT GRAMMATICALLY THE "WITHIN ONE YEAR" PROVISION
APPLIES ONLY TO THE LAST CLAUSE OF SUBSECTION (C), RELATING TO
DISCHARGE WITHOUT CAUSE, AND DOES NOT REFER TO THE "OTHER RIGHTS" FN23
GIVEN BY SUBSECTIONS (B) AND (C), INCLUDING RESTORED STATUTORY
SENIORITY.  BECAUSE THE "WITHIN ONE YEAR" PROVISION APPEARS MOST
PROXIMATELY IN CONNECTION WITH THE PROHIBITION AGAINST DISCHARGE, THE
GOVERNMENT SEEKS TO GIVE THAT PROHIBITION, INCLUDING ITS TEMPORAL TERM,
EFFECT AS A COMMAND WHOLLY DISTINCT FROM AND UNRELATED TO ANYTHING
PRECEDING.  IT TREATS THE CLAUSE AS A GRAMMATICALLY INDEPENDENT
SENTENCE AND A SUBSTANTIVELY UNRELATED PROVISION, ALTHOUGH IT IS
SEPARATED FROM THE EARLIER ONES ONLY BY A COMMA FOLLOWED BY THE
CONJUNCTION "AND." 

ON THIS PREMISE OF COMPLETE SEVERABILITY THE GOVERNMENT BUILDS ITS
ENTIRE CASE.  THE PREMISE NECESSARILY REGARDS SEC. 8(C) AS MAKING NO
EXPRESS PROVISION FOR THE DURATION OF "OTHER RIGHTS," BUT AS LEAVING
THIS TO BE FOUND WHOLLY BY IMPLICATION.  THE GOVERNMENT THEN GOES ON TO
CONCLUDE THAT THE PERIOD TO BE IMPLIED IS INDEFINITE.  ALTHOUGH THE
STATUTORY SECURITY AGAINST DISCHARGE ENDS WITH THE PRESCRIBED YEAR, THE
PROTECTION GIVEN BY SEC. 8(C) TO "OTHER RIGHTS" IS SAID THEREFORE NOT
ONLY TO BE EFFECTIVE FOR THAT YEAR, CF. FISHGOLD V. SULLIVAN DRYDOCK &
REPAIR CORP., SUPRA, BUT TO CONTINUE IN FULL FORCE FOR AS LONG AS THE
JOB MAY LAST BEYOND THAT TIME.  IN THIS VIEW, OF COURSE, THE RESULT
WOULD BE TO "FREEZE" THE INCIDENTS OF THE EMPLOYMENT INDEFINITELY WHILE
"FREEZING" THE RIGHT TO THE JOB ITSELF FOR ONLY ONE YEAR. 

DIFFICULTIES ARISE IN CONNECTION WITH THIS CONSTRUCTION, BOTH IN ITS
PREMISE AND IN ITS CONCLUSIONS.  ONE IS THAT THE CONCLUSION OF
INDEFINITE DURATION WOULD NOT FOLLOW NECESSARILY, IF THE PREMISE OF
COMPLETE SEVERABILITY WERE ACCEPTABLE.  ON THAT BASIS "INDEFINITE
DURATION" AS THE GOVERNMENT CONCEIVES IT WOULD NOT BE THE ONLY TENABLE
PERIOD OR EVEN THE MOST PROBABLY CONTEMPLATED ONE.  SEVERAL
ALTERNATIVES WOULD BE PRESENTED.  HOWEVER, THE STATUTORY YEAR WOULD NOT
BE AMONG THEM, SINCE IT IS IMPLICIT IN THE PREMISE OF SEVERABILITY THAT
THE ACT DOES NOT APPLY THE CONCLUDING CLAUSE OF SEC. 8(C) TO "OTHER
RIGHTS" TO SECURE THEIR EXTENSION EITHER DURING OR AFTER THAT TIME.  ON
THE OTHER HAND, THE GOVERNMENT'S VIEW IGNORES THE USUAL RULE OF
CONSTRUCTION WHERE TIME IS NOT EXPRESSLY PRESCRIBED, BUT IS EVIDENTLY
TO BE IMPLIED.  FOR GENERALLY IN SUCH CASES DURATION FOR A REASONABLE
PERIOD IS THE TERM ACCEPTED BY THE LAW RATHER THAN PERMANENCY OR
INDEFINITE EXTENSION.  FN24  AND THIS, IN VARYING CIRCUMSTANCES, MIGHT
BE FOUND TO BE LONGER OR SHORTER THAN THE STATUTORY YEAR PRESCRIBED FOR
THE JOB ITSELF. 

THE REAL TROUBLE HOWEVER IS IN THE BASIC PREMISE BOTH GRAMMATICALLY
AND SUBSTANTIVELY.  IT ASSUMES NOT ONLY THE COMPLETE INDEPENDENCE OF
THE LAST CLAUSE OF SEC. 8 FROM WHAT PRECEDES, BUT ALSO THAT EMPLOYMENT
WITHIN THE MEANING OF THE ACT IS SOMETHING WHOLLY DISTINCT AND SEPARATE
FROM ITS INCIDENTS, INCLUDING SENIORITY, RATES OF PAY, ETC.  WE THINK,
HOWEVER, THAT THE IDEA OF TOTAL SEVERABILITY IS ALTOGETHER UNTENABLE. 
TO ACCEPT IT WOULD DO VIOLENCE BOTH TO THE GRAMMATICAL AND TO THE
SUBSTANTIVE STRUCTURE OF THE STATUTE. 

THE CLAUSE IS NEITHER AN INDEPENDENT SENTENCE NOR A DISCONNECTED
PROHIBITION WITHOUT SIGNIFICANT RELATIONSHIP TO WHAT PRECEDES.  "FROM
SUCH POSITION" HAS NO MEANING SEVERED FROM THE PRIOR LANGUAGE.  THE
RESTORATION PROVISIONS DEFINE THE VERY CHARACTER OF THE PLACE NOT ONLY
TO WHICH THE VETERAN MUST BE RESTORED BUT EQUALLY FROM WHICH HE IS NOT
TO BE DISCHARGED.  NEITHER GRAMMATICALLY NOR SUBSTANTIVELY COULD THE
DISCHARGE PROVISION BE GIVEN EFFECT WITHOUT REFERENCE TO THE PRIOR
"RESTORATION" CLAUSES.  FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP.,
SUPRA.  INDEED SUCH REFERENCE IS EXPLICIT BOTH IN THE PHRASE "FROM SUCH
POSITION" AND IN THE TIME PROVISION ITSELF, NAMELY, "WITHIN ONE YEAR
AFTER SUCH RESTORATION." 

TO TEAR THE CONCLUDING CLAUSE FROM ITS CONTEXT IS THEREFORE
IMPOSSIBLE.  IT IS CONJUNCTIVE WITH ALL THAT PRECEDES.  NOR IS IT ANY
THE MORE PERMISSIBLE TO DISCONNECT ITS CONSTITUENT TEMPORAL TERM. 
THERE CAN BE NO DOUBT WHATEVER THAT CONGRESS INTENDED BY SEC. 8(C) TO
SECURE THE "OTHER RIGHTS" GUARANTEED BY IT FOR AT LEAST THE MINIMUM
TERM OF THE PRESCRIBED ONE-YEAR PERIOD.  THIS INDEED WAS A SPECIFIC
RULING OF THE FISHGOLD CASE. 

THE EMPLOYEE THERE HAD NOT BEEN DISCHARGED IN THE SENSE OF BEING
THROWN OUT OF HIS JOB ALTOGETHER.  HE SIMPLY HAD BEEN DEPRIVED OF THE
OPPORTUNITY TO WORK BY THE OPERATION OF THE SENIORITY SYSTEM WHEN THERE
WAS NOT SUFFICIENT WORK FOR BOTH HIMSELF AND OTHER EMPLOYEES WITH
GREATER SENIORITY AFTER HE HAD BEEN ACCORDED HIS FULL STANDING UNDER
THE ACT.  THAT STANDING INCLUDED NOT ONLY HIS SENIORITY STATUS AS OF
THE TIME HE ENTERED THE ARMED FORCES, BUT ALSO ALL THAT WOULD HAVE
ACCUMULATED HAD HE REMAINED AT WORK UNTIL THE DATE OF HIS REEMPLOYMENT
WITHOUT GOING INTO THE SERVICE.  IN THE LANGUAGE OF SEC. 8(C) HE IS TO
BE "CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING
HIS PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES."  THE
COURT HELD, INDEED, THAT THE ACT DID NOT GIVE HIM STANDING TO OUTRANK
NONVETERAN EMPLOYEES WHO HAD MORE THAN THE AMOUNT OF SENIORITY TO WHICH
HE WAS ENTITLED AND TO WHICH HE HAD BEEN RESTORED; IN OTHER WORDS, THAT
HE WAS NOT GIVEN SO-CALLED "SUPERSENIORITY."  BUT IT ALSO SQUARELY HELD
THAT HE WAS GIVEN SECURITY NOT ONLY AGAINST COMPLETE DISCHARGE, BUT
ALSO AGAINST DEMOTION, FOR THE STATUTORY YEAR.  AND DEMOTION WAS HELD
TO MEAN IMPAIRMENT OF "OTHER RIGHTS," INCLUDING HIS RESTORED STATUTORY
SENIORITY FOR THAT YEAR.  "IF WITHIN THE STATUTORY PERIOD HE IS
DEMOTED, HIS STATUS, WHICH THE ACT WAS DESIGNED TO PROTECT, HAS BEEN
AFFECTED AND THE OLD EMPLOYMENT RELATIONSHIP HAS BEEN CHANGED.  HE
WOULD THEN LOSE HIS OLD POSITION AND ACQUIRE AN INFERIOR ONE.  HE WOULD
WITHIN THE MEANING OF SEC. 8(C) BE 'DISCHARGED FROM SUCH POSITION.'" 
328 U.S. AT 286. 

THAT SEC. 8(C) APPLIES TO SECURE THE PROTECTION OF "OTHER RIGHTS" FOR
AT LEAST THE STATUTORY YEAR WAS THEREFORE INHERENT IN THE
RATIONALIZATION OF THE FISHGOLD DECISION.  TO THAT EXTENT AT ANY RATE
THE CONCLUDING CLAUSE WAS HELD APPLICABLE, NOT SEVERABLE, CONCERNING
THEM.  THIS OF COURSE DESTROYS THE GOVERNMENT'S BASIC PREMISE OF THE
COMPLETE SEVERABILITY OF THAT CLAUSE AND ITS RESULTING NON
APPLICABILITY TO "OTHER RIGHTS."  WHILE THE REEMPLOYED VETERAN DID NOT
ACQUIRE "SUPERSENIORITY," SEC. 8(C) GAVE HIM THE RESTORED STANDING FOR
THE MINIMUM DURATION OF THE PRESCRIBED YEAR. 

IT IS THEREFORE CLEAR THAT CONGRESS DID NOT CONFER THE RIGHTS GIVEN
AS INCIDENTS OF THE RESTORATION SIMPLY TO LEAVE THE EMPLOYER FREE TO
NULLIFY THEM AT WILL, ONCE HE HAD MADE IT. EQUALLY CLEARLY CONGRESS DID
NOT CREATE THEM TO BE OPERATIVE FOR THE VAGUELY INDEFINITE AND
VARIOUSLY APPLICABLE PERIOD OF A REASONABLE TIME.  BUT WE CANNOT AGREE
THAT THEY WERE GIVEN TO LAST AS LONG AS THE EMPLOYMENT CONTINUES,
UNAFFECTED BY EXPIRATION OF THE ONE-YEAR PERIOD. 

TO ACCEPT THIS CONCLUSION, AS WE HAVE SAID, WOULD MEAN "FREEZING" THE
INCIDENTS OF THE EMPLOYMENT INDEFINITELY WHILE "FREEZING" THE RIGHT TO
EMPLOYMENT ITSELF FOR ONLY ONE YEAR.  AS LONG AS THE EMPLOYEE MIGHT
REMAIN IN HIS JOB, HIS PAY COULD NOT BE REDUCED, HIS SENIORITY COULD
NOT BE DECREASED, INSURANCE AND OTHER BENEFITS COULD NOT BE ADVERSELY
AFFECTED.  AND THIS WOULD BE TRUE, ALTHOUGH FOR VALID REASONS ALL OF
THOSE RIGHTS COULD BE CHANGED TO THE DISADVANTAGE OF NONVETERAN
EMPLOYEES HAVING EQUAL OR GREATER SENIORITY AND OTHER RIGHTS THAN THOSE
OF THE VETERAN WITH RESTORED STATUTORY STANDING.  THE REEMPLOYED
VETERAN THUS NOT ONLY WOULD BE RESTORED TO HIS JOB SIMPLY, AS THE
FISHGOLD CASE REQUIRED, "SO THAT HE DOES NOT LOSE GROUND BY REASON OF
HIS ABSENCE."  328 U.S. AT 285.  HE WOULD GAIN ADVANTAGES BEYOND THE
STATUTORY YEAR OVER SUCH NONVETERAN EMPLOYEES. 

WE DO NOT THINK CONGRESS HAD IN MIND SUCH FAR-REACHING CONSEQUENCES
FOR THE NATION-WIDE SYSTEM OF EMPLOYMENT, BOTH PUBLIC AND PRIVATE, WHEN
MAKING THE STATUTORY PROVISIONS FOR THE VETERAN'S BENEFIT.  AT THE TIME
IT ACTED, WE HAD NOT DECLARED WAR AND THE MEN WHO WERE CALLED TO
SERVICE WERE BEING INDUCTED FOR A YEAR'S TRAINING, WITH THE IDEA IF NOT
THE ASSURANCE THAT THEY WOULD RETURN TO CIVILIAN LIFE AND OCCUPATIONS
AT THE END OF THAT YEAR, WITHOUT PREJUDICE BECAUSE OF THEIR SERVICE. 
VISIONARY AS THIS NOTION PROVED TO BE, IT HARDLY CAN BE TAKEN TO
SUPPORT THE VIEW THAT CONGRESS CONTEMPLATED "FREEZING" THE SPECIFIED
INCIDENTS OF RESTORED EMPLOYMENT INDEFINITELY. 

THE FISHGOLD CASE, IT IS TRUE, CONCERNED ONLY EVENTS TAKING PLACE
WITHIN THE STATUTORY YEAR.  AS THE COURT OF APPEALS POINTED OUT IN
DISTINGUISHING THIS CASE, 154 F.2D AT 871, THE ISSUES THERE INVOLVED NO
QUESTION OF THE REEMPLOYED VETERAN'S STANDING AFTER THE STATUTORY
YEAR.  BUT, AS WE HAVE SAID, THE DECISION DID HOLD THAT SEC. 8(C)
APPLIES TO "OTHER RIGHTS" FOR THE YEAR.  AND THE RATIONALIZATION WAS
WHOLLY INCONSISTENT WITH THE IDEA THAT THOSE RESTORED RIGHTS CONTINUED
INDEFINITELY AFTER THE YEAR, UNAFFECTED BY ITS TERMINATION.  THE
RESTORED VETERAN, IT WAS HELD, COULD NOT BE DISADVANTAGED BY HIS
SERVICE TO THE NATION.  HE "WAS NOT TO BE PENALIZED ON HIS RETURN BY
REASON OF HIS ABSENCE FROM HIS CIVILIAN JOB."  328 U.S. AT 284.  HE WAS
TO BE RESTORED AND KEPT, FOR THE YEAR AT LEAST, IN THE SAME SITUATION
AS IF HE HAD NOT GONE TO WAR BUT HAD REMAINED CONTINUOUSLY EMPLOYED OR
HAD BEEN "ON FURLOUGH OR LEAVE OF ABSENCE."  IT IS CLEAR, OF COURSE,
THAT THIS STATUTORY ADDITION TO THE VETERAN'S SENIORITY STATUS IS NOT
AUTOMATICALLY DEDUCTED FROM IT AT THE END OF HIS FIRST YEAR OF
REEMPLOYMENT.  BUT THE FISHGOLD DECISION ALSO RULED EXPRESSLY THAT HE
WAS NOT TO GAIN ADVANTAGE BEYOND SUCH RESTORATION, BY VIRTUE OF THE
ACT'S PROVISIONS, SO AS TO ACQUIRE "AN INCREASE IN SENIORITY OVER WHAT
HE WOULD HAVE HAD IF HE HAD NEVER ENTERED THE ARMED SERVICES.  ...  NO
STEP-UP OR GAIN IN PRIORITY CAN BE FAIRLY IMPLIED."  328 U.S. AT 285
286.    FOR THE STATUTORY YEAR INDEED THIS MEANT THAT THE RESTORED
RIGHTS COULD NOT BE ALTERED ADVERSELY BY THE USUAL PROCESSES OF
COLLECTIVE BARGAINING OR OF THE EMPLOYER'S ADMINISTRATION OF GENERAL
BUSINESS POLICY.  FN25  BUT IF THIS EXTRAORDINARY STATUTORY SECURITY
WERE TO BE EXTENDED BEYOND THE STATUTORY YEAR, THE RESTORED VETERAN
WOULD ACQUIRE NOT SIMPLY EQUALITY WITH NONVETERAN EMPLOYEES HAVING
IDENTICAL STATUS AS OF THE TIME HE RETURNED TO WORK.  HE WOULD ACQUIRE
INDEFINITE STATUTORY PRIORITY OVER NONVETERAN EMPLOYEES, A PREFERRED
STATUS WHICH WE THINK NOT ONLY INHARMONIOUS WITH THE BASIC FISHGOLD
RATIONALIZATION, BUT BEYOND THE PROTECTION CONTEMPLATED BY CONGRESS. 

WE ARE UNABLE THEREFORE TO ACCEPT THE GOVERNMENT'S POSITION.  ASIDE
FROM THE EVENTS TAKING PLACE AFTER THE COURT OF APPEALS' DECISION,
WHICH AS WE HAVE SAID ARE NOT PROPERLY HERE FOR CONSIDERATION EXCEPT
UPON THE QUESTION OF MOOTNESS, WHIRLS WAS TREATED EXACTLY AS WERE OTHER
EMPLOYEES IN HIS GROUP HAVING THE SAME SENIORITY AND STATUS AS HE HAD
ON THE DATE OF HIS REEMPLOYMENT.  THERE WAS NO DISCRIMINATION AGAINST
HIM AS A VETERAN OR OTHERWISE THAN AS A MEMBER OF THAT GROUP.  BOTH
GROUPS, THE FORMER TRAILMOBILE EMPLOYEES AND THE FORMER HIGHLAND
EMPLOYEES, WHO COMPOSED HIS GROUP, CONTAINED VETERANS AND NONVETERANS
IN LARGE NUMBERS.  BOTH CONTAINED VETERANS IN ACTIVE SERVICE AND
REEMPLOYED VETERANS WHEN THE COLLECTIVE AGREEMENT WAS MADE.  WHIRLS WAS
TREATED EXACTLY AS ALL OTHER MEMBERS OF HIS GROUP, THE EX-HIGHLAND
EMPLOYEES, VETERANS AND NONVETERANS ALIKE.  WHETHER OR NOT THE
COLLECTIVE AGREEMENT WAS VALID, OR INFRINGED RIGHTS OF WHIRLS AND OTHER
MEMBERS OF THAT GROUP APART FROM RIGHTS GIVEN BY SEC. 8(C), IS NOT
BEFORE US, FOR REASONS WE HAVE STATED.  THE ONLY QUESTION HERE AND THE
ONLY ONE WE DECIDE IS THAT SEC. 8(C), ALTHOUGH GIVING THE REEMPLOYED
VETERAN A SPECIAL STATUTORY STANDING IN RELATION TO "OTHER RIGHTS," AS
DEFINED IN THE FISHGOLD CASE, DURING THE STATUTORY YEAR, AND CREATING
TO THAT EXTENT A PREFERENCE FOR HIM OVER NONVETERANS, DID NOT EXTEND
THAT PREFERENCE FOR A LONGER TIME. 

ON THE FACTS THEREFORE WE ARE NOT REQUIRED TO DETERMINE THE FURTHER
QUESTION WHETHER THE STATUTE WOULD GIVE PROTECTION TO A REEMPLOYED
VETERAN AFTER THE STATUTORY YEAR, IF IT WERE SHOWN THAT HE THEN HAD
BEEN DEMOTED BENEATH HIS RIGHTFUL STANDING UNDER THE ACT AS OF THE DATE
OF HIS RESTORATION, THOUGH NONVETERAN EMPLOYEES HAVING THE SAME
SENIORITY STANDING AS OF THAT TIME HAD NOT BEEN DEMOTED OR ADVERSELY
AFFECTED.  NO SUCH QUESTION IS PRESENTED ON THE FACTS OF RECORD
PROPERLY BEFORE US FOR CONSIDERATION AND DECISION.  IT WILL BE TIME
ENOUGH TO CONSIDER SUCH AN ISSUE WHENEVER IT MAY BE PRESENTED. 

WE FIND IT UNNECESSARY THEREFORE TO PASS UPON PETITIONERS' POSITION
IN THIS CASE, NAMELY, THAT ALL PROTECTION AFFORDED BY VIRTUE OF SEC.
8(C) TERMINATES WITH THE ENDING OF THE SPECIFIED YEAR.  WE HOLD ONLY
THAT SO MUCH OF IT ENDS THEN AS WOULD GIVE THE REEMPLOYED VETERAN A
PREFERRED STANDING OVER EMPLOYEES NOT VETERANS HAVING IDENTICAL
SENIORITY RIGHTS AS OF THE TIME OF HIS RESTORATION.  WE EXPRESSLY
RESERVE DECISION UPON WHETHER THE STATUTORY SECURITY EXTENDS BEYOND THE
ONE-YEAR PERIOD TO SECURE THE REEMPLOYED VETERAN AGAINST IMPAIRMENT IN
ANY RESPECT OF EQUALITY WITH SUCH A FELLOW WORKER. 

THESE REASONS, FOUNDED IN THE LITERAL CONSTRUCTION OF THE STATUTE AND
THE POLICY CLEARLY EVIDENT ON ITS FACE, ARE SUFFICIENT FOR DISPOSITION
OF THE CASE.  THEY ARE NOT WEAKENED BY THE GOVERNMENT'S STRAINED AND
UNCONVINCING CITATION OF THE ACT'S LEGISLATIVE HISTORY. 

THAT ARGUMENT IS GROUNDED IN CONCLUSIONS DRAWN FROM CHANGES MADE
WITHOUT EXPLANATION IN COMMITTEE WITH RESPECT TO VARIOUS PROVISIONS
FINALLY TAKING FORM IN SEC. 8, CHANGES AFFECTING BILLS WHICH EVENTUALLY
BECAME THE SELECTIVE TRAINING AND SERVICE ACT AND THE NATIONAL GUARD
ACT, 54 STAT. 858.  APART FROM THE INCONCLUSIVE CHARACTER OF THE
HISTORY, THE GOVERNMENT'S CONTENTION ASSUMES THAT THE ONLY ALTERNATIVES
PRESENTED BY THE FINAL FORM OF THE BILL WERE INDEFINITE DURATION FOR
THE INCIDENTS OF THE EMPLOYMENT NAMED AND NONE AT ALL.  THIS IGNORES
THE OTHER POSSIBILITIES CONSIDERED IN THIS OPINION, INCLUDING DURATION
FOR A REASONABLE TIME.  MOREOVER, AS HAS BEEN NOTED, THE MOST IMPORTANT
COMMITTEE CHANGES RELIED UPON WERE MADE WITHOUT EXPLANATION.  FN26  THE
INTERPRETATION OF STATUTES CANNOT SAFELY BE MADE TO REST UPON MUTE
INTERMEDIATE LEGISLATIVE MANEUVERS.  FN27 

THE ARGUMENT FOR RESPONDENT IN THIS CASE IS OF WHOLE CLOTH IN
PRINCIPLE WITH THE CONTENTION FOR "SUPERSENIORITY" MADE AND REJECTED IN
THE FISHGOLD CASE, AS INDEED THE DISTRICT COURT AND THE COURT OF
APPEALS REGARDED IT.  LACKING ANY BETTER LEGISLATIVE FOOTING, IT
EQUALLY CANNOT STAND. 

ACCORDINGLY THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.  THIS
HOWEVER WILL BE WITHOUT PREJUDICE FROM THE DECISION HERE TO
RESPONDENT'S ASSERTION IN THE FUTURE OF ANY RIGHTS HE MAY HAVE AGAINST
TRAILMOBILE OR THE COLLECTIVE AGENT ON ACCOUNT OF THEIR ACTS NOT
PRESENTED ON THIS RECORD OR INVOLVED IN THE ISSUES DETERMINED BY THIS
DECISION.  IT IS SO ORDERED. 

FN1  54 STAT. 885, 50 U.S.C. APP. SEC. 301 ET SEQ. IN 1944 THERE WAS
A MINOR MODIFICATION OF SEC. 8 NOT HERE RELEVANT.  58 STAT. 798;
FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. 275, 278, NOTE
1.  AS AMENDED THE SELECTIVE TRAINING AND SERVICE ACT EXPIRED IN ITS
MAJOR PART MARCH 31, 1947.  ACT OF JUNE 29, 1946, 60 STAT. 341.  BUT
SEC. 8 IS SAVED INDEFINITELY. 

FN2  "HE ACQUIRES NOT ONLY THE SAME SENIORITY HE HAD; HIS SERVICE IN
THE ARMED SERVICES IS COUNTED AS SERVICE IN THE PLANT SO THAT HE DOES
NOT LOSE GROUND BY REASON OF HIS ABSENCE."  328 U.S. 275, 285. 

FN3  THOUGH THE FACT DOES NOT APPEAR AFFIRMATIVELY IN THE RECORD, THE
PARTIES AGREE THAT WHIRLS UPON HIS REEMPLOYMENT AFTER HIS MILITARY
SERVICE RECEIVED IN ADDITION TO THE SENIORITY HE HAD ACQUIRED AT THE
TIME OF HIS ENTRY INTO MILITARY SERVICE ALSO SENIORITY ACCRUED DURING
THE PERIOD OF HIS SERVICE, CONSISTENTLY WITH THE STANDARD OF THE
FISHGOLD CASE.  THIS ACCORDED WITH THE THEN EFFECTIVE COLLECTIVE
BARGAINING AGREEMENT WHICH PROVIDED:  "IN CASE OF A NATIONAL CRISIS,
SUCH AS A DECLARED OR UNDECLARED WAR, ANY MAN WHO RELINQUISHES HIS JOB
WITH THE COMPANY FOR SERVICES RENDERED TO THE GOVERNMENT, SHALL ON HIS
RETURN TO WORK RETAIN HIS PLACE ON THE SENIORITY LIST WITH
ACCUMULATION." 

FN4  SEE 51 N.L.R.B. 1106, 1107, FOR DETAILS OF THE COMPANIES'
OPERATIONS. 

FN5  IN THE LAST FULL YEAR OF INDEPENDENT OPERATION, 1942, HIGHLAND
HAD APPROXIMATELY 100 EMPLOYEES AND PRODUCED COMMODITIES WORTH
APPROXIMATELY $1,500,000 AND TRAILMOBILE HAD APPROXIMATELY 1,000
EMPLOYEES AND PRODUCED COMMODITIES WORTH $12,000,000. 

FN6  51 N.L.R.B. 1106; 53 N.L.R.B. 1248.  AS THE NATIONAL LABOR
RELATIONS BOARD DETERMINED THAT THE APPROPRIATE BARGAINING UNIT WAS ONE
COMPOSED OF BOTH HIGHLAND AND TRAILMOBILE EMPLOYEES, 51 N.L.R.B. AT
1113, THE EX-HIGHLAND EMPLOYEES, OF COURSE, LOST THE ELECTION, SINCE
THERE WERE MANY MORE TRAILMOBILE EMPLOYEES.  SEE NOTE 5.  THE
BARGAINING UNIT EXCLUDED SUPERVISORY AND CERTAIN MISCELLANEOUS
EMPLOYEES OF BOTH COMPANIES.  51 N.L.R.B. 1114-1115. 

FN7  SEE NOTE 3. 

FN8  THERE ARE HOLDINGS THAT, ALTHOUGH A COLLECTIVE BARGAINING AGENT
MAY BY CONTRACT WITH THE EMPLOYER MODIFY THE SENIORITY STRUCTURE, IT
MUST ACT IN GOOD FAITH TOWARD ALL EMPLOYEES.  SEE SENIORITY RIGHTS IN
LABOR RELATIONS (1937) 47 YALE L.J. 73, 90; CHRISTENSON, SENIORITY
RIGHTS UNDER LABOR UNION WORKING AGREEMENTS (1937) 11 TEMP.  L.Q. 355,
370-371.  THE CLASS SUIT WAS FILED AND DETERMINED BEFORE THE DECISIONS
WERE RENDERED HERE IN STEELE V. LOUISVILLE & NASHVILLE R. CO., 323 U.S.
192; TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 323
U.S. 210; WALLACE CORP. V. NATIONAL LABOR RELATIONS BOARD, 323 U.S.
248. 

FN9  HESS V. THE TRAILER CO., 31 O.O. 566, 17 O. SUPP. 39, AFFIRMED
BY THE COURT OF APPEALS, HAMILTON COUNTY, OHIO, MOTION TO CERTIFY
RECORD TO THE OHIO SUPREME COURT OVERRULED, O. LAW REP., OCTOBER 15,
1945, 51; 18 OHIO BAR 314. 

FN10  THE PLEADINGS IN THE CLASS SUIT HAVE BEEN MADE PART OF THE
RECORD IN THIS CASE.  NEITHER THEY NOR THE FINDINGS AND JUDGMENT OF THE
TRIAL COURT IN THAT CAUSE DISCLOSE ANY REFERENCE TO OR CONSIDERATION OF
SEC. 8 OR ITS POSSIBLE EFFECTS UPON THAT LITIGATION. 

FN11  SEE NOTE 8 SUPRA. 

FN12  SEE NOTE 9 SUPRA. 

FN13  WHIRLS' PETITION IN THIS CASE ALLEGED THAT AFTER THE NOTICE OF
JULY 15, 1944, "DEFENDANT HEREIN AGAIN RESTORED PLAINTIFF TO HIS DATE
OF HIRING, AS REGULATING HIS SENIORITY, TO-WIT: FEBRUARY 8, 1935,
PURSUANT TO A DIRECTIVE OF THE SELECTIVE SERVICE SYSTEM OF THE UNITED
STATES, AND HE CONTINUED TO BENEFIT BY SUCH SENIORITY STATUS UNTIL ON
OR ABOUT SEPTEMBER 3, 1945, AT WHICH TIME" THE DEFENDANT TRANSFERRED
HIM AS STATED BELOW IN THE TEXT AND THREATENED, UNLESS RESTRAINED, TO
REDUCE HIS PAY AND SENIORITY RATING. 

FN14  SECTION 8(E) OF THE SELECTIVE TRAINING AND SERVICE ACT, QUOTED
IN FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. AT 280, NOTE
3. 

FN15  THE COURT OF APPEALS EXPRESSLY STATED ITS DISAGREEMENT WITH THE
VIEWS EXPRESSED BY JUDGE LEARNED HAND, 154 F.2D 785, WRITING FOR THE
MAJORITY OF THE CIRCUIT COURT OF APPEALS IN THE FISHGOLD CASE, THE
DECISION IN WHICH WAS AFFIRMED HERE. 

FN16  THE GOVERNMENT'S BRIEF PUTS THE SUGGESTION AND DISCUSSION IT
MAKES AS A MATTER OF NOT DESIRING ITS "FAILURE TO EXPLORE THE NATURE
AND CAUSES" OF THE ALLEGED DISCRIMINATION TO BE TAKEN "AS AN ADMISSION
EITHER" THAT THERE WAS NOT UNFAIR DISCRIMINATION UNDER THE STEELE,
TUNSTALL AND WALLACE CASES, SUPRA; OR THAT SUCH DISCRIMINATION "CANNOT
BE REDRESSED UNDER SECTION 8  ...  AFTER THE LAPSE OF THE INITIAL YEAR
OF REEMPLOYMENT  ...  " 

FN17  SEE NOTE 16. 

FN18  THE COURT OF APPEALS, NOTING THAT WHIRLS WAS NOT NAMED AS A
PARTY TO THE CLASS SUIT OTHER THAN AS A MEMBER OF THE CLASS, POINTED
OUT THAT NUMEROUS MEMBERS OF THE ARMED FORCES WERE INVOLVED IN BOTH
GROUPS OF EMPLOYEES, BUT THAT THEIR INTERESTS AS VETERANS UNDER SEC. 8
WERE NOT COMMON TO THE NONVETERAN EMPLOYEES IN EITHER GROUP.  HENCE, IT
CONCLUDED, THE CLASS SUIT WAS NOT APPROPRIATE FOR RENDERING A JUDGMENT
BINDING UPON VETERAN MEMBERS OF THE COMPLAINING CLASS AS TO THE
QUESTION OF THEIR SENIORITY UNDER SEC. 8.  154 F.2D 866, 872. 

FN19  "SEC.  8.  (A)  ANY PERSON INDUCTED INTO THE LAND OR NAVAL
FORCES UNDER THIS ACT FOR TRAINING AND SERVICE, WHO, IN THE JUDGMENT OF
THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES HIS PERIOD OF
TRAINING AND SERVICE UNDER SECTION 3(B) SHALL BE ENTITLED TO A
CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH PERIOD OF
TRAINING AND SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL
PROFICIENCY OR MERIT ATTAINED.  ... 

"(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, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH
POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS
AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE - 

"(A)  IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES
GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF
COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A
POSITION OF LIKE SENIORITY, STATUS, AND PAY; 

"(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; ...
" 

FN20 THE GOVERNMENT STATES THAT A VETERAN COULD BE REDUCED IN
SENIORITY ON ACCOUNT OF BONA FIDE CHANGED CIRCUMSTANCES OR ON ACCOUNT
OF CAUSE OR UPON WAIVER.  AS TO THIS, SEE NOTE 25. 

FN21  SENIORITY ARISES ONLY OUT OF CONTRACT OR STATUTE.  AN EMPLOYEE
HAS "NO INHERENT RIGHT TO SENIORITY IN SERVICE  ...  "  RYAN V. NEW
YORK CENTRAL R.R., 267 MICH. 202, 208; CASEY V. BROTHERHOOD, 197 MINN.
189, 191-192.  "THE SENIORITY PRINCIPLE IS CONFINED ALMOST EXCLUSIVELY
TO UNIONIZED INDUSTRY."  DECISIONS (1946) 46 COL. L. REV. 1030, 1031,
AND AUTHORITIES CITED.  "IN PRIVATE EMPLOYMENT SENIORITY IS TYPICALLY
CREATED AND DELIMITED BY A COLLECTIVE BARGAINING AGREEMENT  ...  "
IBID. 

FN22  SEE NOTE 20. 

FN23  THE GOVERNMENT'S ARGUMENT IS LIMITED TO SENIORITY.  BUT IT IS
EQUALLY APPLICABLE TO THE OTHER COMPONENTS OF "POSITION," SUCH AS PAY. 
THUS, IF ACCEPTED, IT WOULD MEAN THAT AFTER THE GUARANTEED ONE YEAR A
VETERAN COULD BE DISCHARGED BUT COULD NOT HAVE HIS PAY REDUCED. 

THE POSITION TO WHICH AN EMPLOYEE MUST BE RESTORED IS EITHER THE
POSITION PREVIOUSLY HELD OR "A POSITION OF LIKE SENIORITY, STATUS, AND
PAY."  SEE NOTE 18.  IT IS THUS RECOGNIZED THAT PART OF THE RESTORED
"POSITION" IS THE SENIORITY ACCRUED PRIOR TO SERVICE IN THE ARMED
FORCES AND, UNDER THE FISHGOLD CASE, DURING SERVICE.  "SENIORITY" IS
PART OF "POSITION," AND THEREFORE WHEN THE ACT STATES IN SUBSECTION (C)
THAT THE VETERAN MAY NOT BE DISCHARGED "FROM SUCH POSITION" IT MEANS
BOTH FROM THE JOB ITSELF AND FROM THE SENIORITY WHICH IS PART OF THE
JOB.    FN24  SEE, E.G., DILLON V. GLOSS, 256 U.S. 368, 375; SUNFLOWER
OIL CO. V. WILSON, 142 U.S. 313, 322; 1 WILLISTON, CONTRACTS (REV.
ED.)  152. 

FN25  SECTION 8(C), IT WILL BE RECALLED, FORBIDS DISCHARGE "WITHOUT
CAUSE WITHIN ONE YEAR."  IT MAY BE THAT THE "WITHOUT CAUSE"
QUALIFICATION APPLIES TO "OTHER RIGHTS" AS WELL AS TO TOTAL DISCHARGE,
MORE ESPECIALLY IN VIEW OF THE POSITION WE TAKE CONCERNING THE
SEVERABILITY OF THE CONCLUDING CLAUSE OF SEC. 8(C).  BUT NO QUESTION IS
PRESENTED IN THIS CASE WHETHER THE EMPLOYER, FOR CAUSE, COULD DEMOTE A
REEMPLOYED VETERAN WITHIN THE STATUTORY YEAR CONSISTENTLY WITH THE
REQUIREMENTS OF SEC. 8(C), AND WE EXPRESS NO OPINION IN THIS RESPECT. 

FN26  SEE S. REP. 1987, 76TH CONG., 3D SESS.; H. REP. 2847, 76TH
CONG., 3D SESS.; H. REP. 2874, 76TH CONG., 3D SESS. 

FN27  THE GOVERNMENT ALSO RELIES UPON CERTAIN STATEMENTS TAKEN OUT OF
CONTEXT FROM THE DEBATES.  "AS IS TRUE WITH RESPECT TO ALL SUCH
MATERIALS, IT IS POSSIBLE TO EXTRACT PARTICULAR SEGMENTS FROM THE
IMMEDIATE AND TOTAL CONTEXT AND COME OUT WITH ROAD SIGNS POINTING IN
OPPOSITE DIRECTIONS."  HUST V. MOORE-MCCORMACK LINES, 328 U.S. 707,
733.  NONE OF THE SELECTIONS IS DIRECTED TOWARD THE QUESTION WHETHER
THE VETERAN'S SENIORITY CONTINUES AFTER THE GUARANTEED ONE-YEAR PERIOD
SO AS TO BE NOT SUBJECT TO MODIFICATION BY A COLLECTIVE BARGAINING
AGREEMENT. 

MR. JUSTICE JACKSON, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
DISSENTING. 

OF THE MILLIONS OF WAGE EARNERS WHOM THE WAR TOOK FROM THEIR JOBS
INTO THE ARMED SERVICES, SOME CAME FROM ORGANIZED INDUSTRIES, OTHERS
FROM UNORGANIZED INDUSTRIES; SOME HAD PRIORITY RIGHTS INCIDENT TO THEIR
JOBS, OTHERS HAD NO SUCH RIGHTS.  FOR ALL, CONGRESS PROVIDED THE
SECURITY OF BEING ABLE TO GET BACK THEIR OLD JOBS FOR AT LEAST A YEAR
AFTER THEIR RETURN TO CIVIL LIFE.  BUT SINCE INDUSTRIAL PRIORITY RIGHTS
USUALLY PREVAILING IN ORGANIZED INDUSTRY HAVE IMPORTANT BEARING BOTH ON
PERMANENCE OF EMPLOYMENT AND WAGES, CONGRESS GUARANTEED THE VETERAN NOT
MERELY "AGAINST LOSS OF POSITION" BUT ALSO AGAINST "LOSS OF SENIORITY
BY REASON OF HIS ABSENCE.  HE ACQUIRES NOT ONLY THE SAME SENIORITY HE
HAD; HIS SERVICE IN THE ARMED SERVICES IS COUNTED AS SERVICE IN THE
PLANT SO THAT HE DOES NOT LOSE GROUND BY REASON OF HIS ABSENCE." 
FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. 275, 285.  IN
BRIEF, IN EMPLOYMENTS THAT WERE GOVERNED BY PRIORITY RIGHTS, ABSENCE IN
THE ARMED SERVICES WAS TREATED AS PRESENCE IN THE PLANT.  THE VETERAN
ACQUIRED A RATING WHICH HE WOULD HAVE HAD, HAD HE NOT BEEN AWAY. 

CONGRESS THUS DEALT WITH TWO VERY DIFFERENT ASPECTS OF EMPLOYMENT. 
IT GAVE ALL WAGE EARNERS THE ASSURANCE OF HAVING THEIR OLD JOBS FOR A
YEAR.  IT FURTHER MADE IMPERATIVE THAT WAGE EARNERS WHO, BY VIRTUE OF
EMPLOYMENT CONTRACTS, NORMALLY UNION CONTRACTS, HAD PREFERRED POSITIONS
SHOULD HAVE THE SAME PREFERRED POSITIONS AS THOSE ENJOYED BY THEIR
FELLOWS WHO HAD THEIR STATUS BUT REMAINED BEHIND.  CONGRESS LIMITED THE
RIGHT TO HAVE A JOB TO A YEAR.  BUT CONGRESS, HAVING ASSURED A VETERAN
THE PRIORITY STATUS HE WOULD HAVE HAD HAD HE REMAINED AT WORK, DID NOT
TAKE AWAY THAT STATUS AT THE END OF TWELVE MONTHS.  ACCORDINGLY,
BECAUSE OF THE CONGRESSIONALLY ASSURED STATUS, WHEREBY A VETERAN HAD A
PRIORITY RIGHT THAT HE WOULD HAVE HAD, HAD HE NEVER LEFT, HE HAS
WHATEVER RIGHTS THAT STATUS GAVE AN EMPLOYEE UNDER THE GENERAL LAW OF
CONTRACT AND MORE PARTICULARLY, AS IN THIS CASE, UNDER THE NATIONAL
LABOR RELATIONS ACT. 

THE VETERAN AT THE END OF THE YEAR CERTAINLY IS NOT IN A WORSE
POSITION THAN HE WOULD HAVE BEEN HAD HE NOT BEEN IN THE ARMED
SERVICES.  IF HE COULD NOT BE DEPRIVED OF HIS SENIORITY RIGHTS UNDER
THE EMPLOYMENT CONTRACT HAD HE REMAINED BEHIND, HE CANNOT BE DEPRIVED
OF THEM BECAUSE HE IS A VETERAN.  THEREFORE, IF UNDER THE NATIONAL
LABOR RELATIONS ACT, THOSE WIELDING THE POWER OF AN EXCLUSIVE
BARGAINING AGENCY ON BEHALF OF THE VETERAN COULD NOT HAVE DISCRIMINATED
AGAINST HIM HAD HE NOT BEEN A VETERAN, THEY CANNOT DISCRIMINATE AGAINST
HIM BECAUSE HE IS A VETERAN.  ANY OTHER RESULT WOULD FLY SO COMPLETELY
IN THE FACE OF WHAT CONGRESS WAS ABOUT IN FASHIONING ECONOMIC SECURITY
FOR THE RETURNING VETERANS, THAT IT WOULD REQUIRE LANGUAGE TOTALLY
WANTING IN WHAT CONGRESS WROTE TO FIND SUCH A STRANGE PURPOSE ON ITS
PART. 

CONGRESS DID NOT AUTHORIZE ARBITRARY REDUCTION OF THE SENIORITY
RIGHTS TO WHICH THE VETERAN HAD BEEN RESTORED AT THE END OF THE YEAR. 
IF HIS RIGHTS UNDER THE CONTRACT OF EMPLOYMENT ASSURE THAT HE WILL NOT
BE DISCHARGED BEFORE AN EMPLOYEE WITH LOWER SENIORITY AND THAT HE IS
ENTITLED TO A CERTAIN WAGE SCALE HE CONTINUES IN EMPLOYMENT WITH THIS
SENIORITY STATUS AND IS ENTITLED TO ALL ITS BENEFITS, AS LONG AS OTHERS
WITH LOWER SENIORITY REMAIN ON THE JOB. 

IN ASSURING NOT MERELY THE RETENTION OF SENIORITY STATUS BUT ITS
PROGRESSION DURING THE YEARS IN THE SERVICE, CONGRESS AIMED TO INSURE
THAT THE YEARS WHICH THE VETERAN GAVE TO HIS COUNTRY SHOULD NOT RETARD
HIS ECONOMIC ADVANCEMENT.  IT IS NOT LIKELY THAT IN FURTHERING THIS
POLICY CONGRESS WOULD SAY THAT AN EMPLOYEE, BECAUSE HE IS A VETERAN,
SHOULD SUFFER THE CONSEQUENCES OF HAVING BEEN TO WAR AFTER A YEAR'S
RETURN.  THE EQUALITY OF TREATMENT WHICH CONGRESS DESIGNED AS BETWEEN
EMPLOYEES WHO WENT AND EMPLOYEES WHO STAYED COULD NOT BE ACHIEVED BY
DELAYING FOR ONE YEAR THE DISADVANTAGES OF HAVING BEEN AWAY AND THEN
LETTING THEM AFFECT THE VETERAN. 

WHIRLS CAME BACK FROM THE ARMY TO HIS OLD WORK, WHERE HE HAD CERTAIN
ADVANTAGES OF SENIORITY.  NOW HE HAS LOST HIS SENIORITY, AND BECAUSE HE
ASKED THE COURTS TO SAY WHETHER HE LOST IT LEGALLY HE WAS BOOTED OUT OF
HIS JOB AND, MOREOVER, WAS EXPELLED FROM THE UNION HE HAD BEEN
COMPELLED TO JOIN BY REASON OF A CLOSED-SHOP AGREEMENT.  HE MAY FIND
OTHER EMPLOYMENT AT HIS OLD CRAFT CLOSED TO HIM.  THIS IS RATHER
SHOCKING AND IT IS HARD TO BELIEVE THAT WHIRLS HAS NO PROTECTION IN
LAW. 

WHAT HAPPENED TO WHIRLS IS THIS:  THE EMPLOYER TO WHOSE SERVICE HE
RETURNED WAS MERGED OR CONSOLIDATED WITH A BIGGER CONCERN OF THE SAME
KIND - A CORPORATION WHICH HAD OWNED THE COMPANY FOR WHICH WHIRLS
WORKED - AND BOTH BUSINESSES WERE CONTINUED UNDER ONE OWNERSHIP.  THIS
UNITED THE TWO WORKING FORCES AND THE QUESTION AROSE AS TO RELATIVE
SENIORITY RIGHTS.  BOTH GROUPS HAD BELONGED TO AMERICAN FEDERATION OF
LABOR UNIONS, SO THE PROBLEM WAS SUBMITTED TO ITS NATIONAL
AUTHORITIES.  THEY RULED THAT EACH EMPLOYEE SHOULD RETAIN SENIORITY
RIGHTS DATING FROM THE TIME HE ENTERED THE EMPLOY OF EITHER COMPANY. 

THE BIGGER GROUP REVOLTED.  THEY DEMANDED THEIR OWN SENIORITY AND
DEMANDED THAT THE SMALLER GROUP COMING INTO THE CONSOLIDATION BE
TREATED AS ENTIRELY NEW EMPLOYEES.  THEY REORGANIZED AS A C.I.O. UNIT,
DEMANDED RECOGNITION AS THE EXCLUSIVE BARGAINING AGENT OF THE WHOLE
ENTERPRISE AND, OF COURSE, WON THE ELECTION.  THEY THEN DEMANDED AND
OBTAINED A CONTRACT ALLOWING THEIR OWN SENIORITY AND ESTABLISHING A
CLOSED SHOP.  TO KEEP HIS JOB AT ALL, WHIRLS WAS OBLIGED THEREBY TO
JOIN THE C.I.O. UNION AND, WITH OTHERS, SUFFERED REDUCTION OF PAY AND
LOSS OF SENIORITY RIGHTS. 

BELIEVING THAT HE AND OTHERS HAD BEEN UNLAWFULLY DEALT WITH AND BEING
SUPPORTED BY THE GOVERNMENT IN THE BELIEF, HE SOUGHT A REMEDY IN THE
COURTS.  HIS CLAIM WAS NOT FRIVOLOUS, FOR TWO COURTS BELOW GRANTED HIM
RELIEF.  BUT BECAUSE HE TESTED HIS RIGHTS IN COURT, HE WAS EXPELLED
FROM THE UNION ON CHARGES THAT HE NEGOTIATED FOR HIMSELF THROUGH OTHERS
THAN THE UNION AND ACTED IN A WAY CONTRARY AND HARMFUL TO ITS
INTERESTS.  SINCE HE WAS NO LONGER A MEMBER OF THE UNION, IT DEMANDED
UNDER THE CLOSED-SHOP AGREEMENT THAT THE EMPLOYER OUST HIM FROM EVEN
THE REDUCED JOB WHICH ITS BARGAINING HAD LEFT TO HIM.  THE EMPLOYER WAS
OBLIGED BY ITS CONTRACT TO COMPLY BUT HAS BEEN PAYING HIM ON A LEAVE-OF
ABSENCE-WITH-PAY BASIS.  THE SHORT OF IT IS THAT WHIRLS IS OUT OF
SENIORITY, OUT OF WORK, AND OUT OF THE UNION, WITH ALL THAT THIS MEANS
IN A CLOSED-SHOP INDUSTRY.  HIS PREDICAMENT COMES ABOUT NOT BECAUSE OF
ANY FAULT OF WHIRLS AS A WORKMAN, NOR BECAUSE OF HIS EMPLOYER'S WISH. 

THE EMPLOYER URGES THAT WE RELIEVE IT FROM THE DUTY IMPOSED BY THE
COURT BELOW OF REINSTATING WHIRLS IN HIS SENIORITY RIGHTS BECAUSE "THE
MAJORITY UNION MEMBERS MAY COMPEL THE EMPLOYER TO DISCHARGE SUCH
RETURNING VETERAN AFTER THE EXPIRATION OF SAID ONE-YEAR PERIOD.  AS IN
THIS CASE, THE UNION MIGHT EXPEL THE VETERAN FROM THE UNION, AND
THEREBY COMPEL THIS EMPLOYER TO DISCHARGE SUCH VETERAN UNDER ITS CLOSED
SHOP CONTRACT WITH THE UNION."  ONE MIGHT HAVE THOUGHT THIS AN
EXAGGERATED FEAR CONJURED UP IN HOSTILITY TO THE UNION EXCEPT THAT IT
IS JUST WHAT HAS HAPPENED, AND THAT INSTEAD OF REPUDIATING IT NOW THE
UNION ENDORSES THE THREAT.  IT SAYS THAT THE UNION "MUST DO ONE OF TWO
THINGS, (A) EITHER DISCRIMINATE AGAINST THE TRAILMOBILE VETERANS AND
ALLOW THE HIGHLAND VETERANS TO SUPERSEDE THEM ON THE SENIORITY LIST,
OR, (B) IN FAIRNESS TO THE TRAILMOBILE VETERANS, NEGOTIATE FOR THE
DISCHARGE OF HIGHLAND VETERANS AT THE END OF ONE YEAR'S GUARANTEED
EMPLOYMENT." 

THIS COMBINES A FALSE ALTERNATIVE WITH A DISINGENUOUS THREAT.  BOTH
ALTERNATIVES PRESUPPOSE THAT THE EMPLOYER HAS AN ABSOLUTE RIGHT TO
DISCHARGE VETERANS AFTER REEMPLOYING THEM FOR A YEAR, WHETHER OR NOT
THEY WORK UNDER A CONTRACT WHICH GIVES THEM SENIORITY RIGHTS.  BUT THE
QUESTION FOR DECISION IS WHETHER THE VETERAN IS SECURED IN HIS
SENIORITY RIGHTS BY THE ACT.  IF HE IS, HE IS TO THE EXTENT OF THOSE
RIGHTS UNDER THE EMPLOYMENT CONTRACT ENTITLED TO HIS JOB EVEN AFTER THE
ASSURED YEAR HAS ENDED. 

THERE IS NEITHER NEED NOR AUTHORITY TO DISCRIMINATE AGAINST ANY
VETERAN OF EITHER PLANT.  THE FAIR SOLUTION WOULD BE THAT EACH EMPLOYEE
GO ON THE SENIORITY LIST AS OF THE DATE HE ENTERED EITHER OF THE TWO
UNITS NOW CONSOLIDATED.  THAT WAS THE SOLUTION UNDER THE COLLECTIVE
AGREEMENT BY WHICH WHIRLS WORKED AT THE TIME OF THE CONSOLIDATION.  TO
THWART IT, THE WHOLE MACHINERY OF THE NATIONAL LABOR RELATIONS BOARD
WAS SET IN MOTION AND APPARENTLY HAS BEEN USED IN DISREGARD OF WHIRLS'
RIGHTS UNDER THE LABOR ACT.  BEFORE WE REACH THE QUESTION WHETHER
RIGHTS UNDER THE LABOR ACT HAVE BEEN INFRINGED, HOWEVER, IT SHOULD BE
CLEAR THAT THE SELECTIVE SERVICE ACT SECURED WHIRLS' SENIORITY RIGHTS,
FOR IT IS THOSE RIGHTS WHICH HE ASSERTS WERE TAKEN FROM HIM. 

BE RESTORED, I.E., SIMPLY THE SAME JOB WHICH HE LEFT, OR ITS
EQUIVALENT.  SECTION 8(C) SPECIFIES WHAT RIGHTS HE SHALL HAVE IN THAT
JOB.  HE IS TO HAVE THE SENIORITY WHICH WOULD HAVE ACCUMULATED WHILE HE
WAS IN SERVICE AND HE IS TO BE ASSURED AGAINST DISCHARGE FOR ONE YEAR,
REGARDLESS OF WHAT HIS OR OTHERS' SENIORITY RIGHTS ARE.  SUCH ASSURANCE
AGAINST DISCHARGE CERTAINLY DOES NOT TERMINATE SENIORITY RIGHTS AFTER
ONE YEAR.  SECTION 8(B)(B) TOGETHER WITH THE PROVISION AGAINST
ARBITRARY DISCHARGE IS ENOUGH TO ASSURE THAT THE VETERAN WILL REMAIN IN
THE SAME JOB FOR ONE YEAR WITHOUT DIMINUTION OF ITS INCIDENTS.  SEE
FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. 275, 286, IN
WHICH THIS COURT SAID, "WHAT IT (CONGRESS) UNDERTOOK TO DO WAS TO GIVE
THE VETERAN PROTECTION WITHIN THE FRAMEWORK OF THE SENIORITY SYSTEM
PLUS A GUARANTEE AGAINST DEMOTION OR TERMINATION OF THE EMPLOYMENT
RELATIONSHIP WITHOUT CAUSE FOR A YEAR."  328 U.S. AT 288. 

THAT CASE INTERPRETED THE PROVISIONS AGAINST DISCHARGE AS BROAD
ENOUGH TO PROHIBIT ALSO ANY REDUCTION IN STATUS, PAY, OR SENIORITY,
DURING THE YEAR.  BUT WE DID NOT HOLD THAT SENIORITY RIGHTS ENDED WITH
THE YEAR.  SENIORITY RIGHTS ARE RIGHTS WHICH, BY THEIR NATURE, ENDURE
AS LONG AS THE EMPLOYMENT DOES, AND BECOME MORE AND MORE VALUABLE IN
PROTECTING THAT EMPLOYMENT AND ENHANCING ITS BENEFITS.  ORDINARILY, ONE
OF THEIR MOST IMPORTANT FUNCTIONS IS TO GIVE A MEASURE OF SECURITY IN
THE JOB.  TO HAVE SENIORITY RIGHTS FOR A YEAR MAY NOT BE AN
IMPOSSIBILITY, BUT IT IS ALMOST A CONTRADICTION IN TERMS. 

THE JOB GUARANTEED AGAINST DISCHARGE FOR A YEAR, THEN, IS THE JOB
DEFINED IN SEC. 8(B)(B).  BUT THE RIGHT TO DISCHARGE AFTER THE YEAR IS
NOT UNCONDITIONAL WHERE THE EMPLOYEE IS THE BENEFICIARY OF A SENIORITY
PLAN.  OF COURSE, WHERE EMPLOYEES HAVE NO SENIORITY RIGHTS, THE
GUARANTEE OF ONE YEAR'S EMPLOYMENT IS THEIR ONLY RIGHT.  BUT IF A
SENIORITY SYSTEM DOES EXIST, THE CONGRESS GAVE THE EMPLOYEE "PROTECTION
WITHIN THE FRAMEWORK OF THE SENIORITY SYSTEM PLUS A GUARANTEE AGAINST
DEMOTION OR TERMINATION OF THE EMPLOYMENT RELATIONSHIP WITHOUT CAUSE
FOR A YEAR."  FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. AT
288. 

IT IS TO BE NOTED THAT THE SENIORITY RIGHTS OF WHIRLS WERE BARGAINED
AWAY FROM HIM BY A UNION WHICH, UNDER THE NATIONAL LABOR RELATIONS ACT,
WAS ENTITLED TO BARGAIN AS HIS REPRESENTATIVE.  THE ACT MAKES THE
MAJORITY UNION "THE EXCLUSIVE REPRESENTATIVES OF ALL THE EMPLOYEES IN
SUCH UNIT" FOR BARGAINING.  49 STAT. 453, SEC. 9(A), 29 U.S.C. SEC.
159(A).  WE HAVE HELD THAT THIS NOT ONLY PRECLUDES THE INDIVIDUAL FROM
BEING REPRESENTED BY OTHERS BUT ALSO PREVENTS HIM FROM BARGAINING FOR
HIMSELF.  J.I. CASE CO. V. NATIONAL LABOR RELATIONS BOARD, 321 U.S.
332.  WHILE THE INDIVIDUAL IS THUS PLACED WHOLLY IN THE POWER OF THE
UNION, IT DOES NOT FOLLOW THAT UNION POWERS HAVE NO LIMIT.  COURTS FROM
TIME IMMEMORIAL HAVE HELD THAT THOSE WHO UNDERTAKE TO ACT FOR OTHERS
ARE HELD TO GOOD FAITH AND FAIR DEALING AND MAY NOT FAVOR THEMSELVES AT
THE COST OF THOSE THEY HAVE ASSUMED TO REPRESENT.  THE NATIONAL LABOR
RELATIONS ACT, IN AUTHORIZING UNION ORGANIZATIONS "FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION," 49 STAT. 452,
SEC. 7, 29 U.S.C. SEC. 157, INDICATES NO PURPOSE TO EXCUSE UNIONS FROM
THESE WHOLESOME PRINCIPLES OF TRUSTEESHIP.    WE HAVE HELD UNDER A
SIMILAR ACT THAT THE COURTS MAY INTERVENE TO PREVENT A MAJORITY UNION
FROM NEGOTIATING A CONTRACT IN FAVOR OF ITSELF AGAINST A COLORED
MINORITY.  SPEAKING FOR ALL BUT TWO MEMBERS OF THE COURT, CHIEF JUSTICE
STONE, AFTER RECOGNIZING THAT THE REPRESENTATIVES MAY MAKE "CONTRACTS
WHICH MAY HAVE UNFAVORABLE EFFECTS ON SOME OF THE MEMBERS OF THE CRAFT
REPRESENTED" IN SUCH MATTERS AS SENIORITY, BASED ON RELEVANT
DIFFERENCES OF CONDITIONS, SAID:  "WITHOUT ATTEMPTING TO MARK THE
ALLOWABLE LIMITS OF DIFFERENCES IN THE TERMS OF CONTRACTS BASED ON
DIFFERENCES OF CONDITIONS TO WHICH THEY APPLY, IT IS ENOUGH FOR PRESENT
PURPOSES TO SAY THAT THE STATUTORY POWER TO REPRESENT A CRAFT AND TO
MAKE CONTRACTS AS TO WAGES, HOURS AND WORKING CONDITIONS DOES NOT
INCLUDE THE AUTHORITY TO MAKE AMONG MEMBERS OF THE CRAFT
DISCRIMINATIONS NOT BASED ON SUCH RELEVANT DIFFERENCES."  STEELE V.
LOUISVILLE & NASHVILLE RAILROAD CO., 323 U.S. 192, 203.  THAT OPINION
ALSO DECLARED THAT "IT IS A PRINCIPLE OF GENERAL APPLICATION THAT THE
EXERCISE OF A GRANTED POWER TO ACT IN BEHALF OF OTHERS INVOLVES THE
ASSUMPTION TOWARD THEM OF A DUTY TO EXERCISE THE POWER IN THEIR
INTEREST AND BEHALF, AND THAT SUCH A GRANT OF POWER WILL NOT BE DEEMED
TO DISPENSE WITH ALL DUTY TOWARD THOSE FOR WHOM IT IS EXERCISED UNLESS
SO EXPRESSED."  323 U.S. AT 202.  AND IN TUNSTALL V. BROTHERHOOD OF
LOCOMOTIVE FIREMEN, 323 U.S. 210, WE HELD THAT WHERE AN INDIVIDUAL IS
WITHOUT AVAILABLE ADMINISTRATIVE REMEDIES, THE COURTS MUST GRANT HIM
PROTECTION. 

I DO NOT THINK THAT WHIRLS' SENIORITY RIGHTS AFTER ONE YEAR ARE MADE
IMMUTABLE OR IMMUNE FROM COLLECTIVE BARGAINING.  BUT THE STATUTE
RESTORED THESE RIGHTS TO HIM AS A VETERAN.  THEY STAND UNTIL THEY ARE
LAWFULLY MODIFIED.  THE RECORD INDICATES THAT THEY HAVE NEVER BEEN
TERMINATED OR MODIFIED BY GOOD FAITH COLLECTIVE BARGAINING IN THE
INTERESTS OF THE CRAFT.  IT RAISES THE SUSPICION THAT THEY WERE SIMPLY
MISAPPROPRIATED TO THE BENEFIT OF THE MAJORITY GROUP WHICH WAS UNDER A
DUTY TO REPRESENT HIS INTERESTS AS WELL AS ITS OWN. 

THE COURTS CANNOT TOLERATE THE EXPULSION OF A MEMBER OF A UNION,
DEPRIVING HIM OF HIS RIGHT TO EARN A LIVING MERELY BECAUSE HE INVOKES
THE PROCESS OF THE COURTS TO PROTECT HIS RIGHTS - EVEN IF HE DOES SO
MISTAKENLY.  THE LABOR RELATIONS ACT MAKES IT AN UNFAIR LABOR PRACTICE
BY AN EMPLOYER "TO DISCHARGE OR OTHERWISE DISCRIMINATE AGAINST AN
EMPLOYEE BECAUSE HE HAS FILED CHARGES OR GIVEN TESTIMONY" IN
PROCEEDINGS UNDER IT.  49 STAT. 453, SEC. 8, 29 U.S.C. SEC. 158. 
NEITHER MAY A UNION USE ITS OWN POWER OVER ITS MEMBERS TO BY-PASS THE
COURTS.  CF. DORCHY V. KANSAS, 272 U.S. 306. 

THIS ACTION IS EQUITABLE IN CHARACTER AND EQUITY TRADITIONALLY ADAPTS
ITS REMEDIES TO THE FACTS AS DEVELOPED BY TRIAL RATHER THAN TO THE FORM
OF PLEADINGS.  THERE COULD BE NO OBJECTION IF THE COURT WOULD REMAND
THE CASE FOR DEVELOPMENT OF A MORE COMPLETE RECORD.  BUT I COULD NOT
AGREE THAT IT SHOULD BE DONE WITH THE SUGGESTION THAT WHIRLS WAS NOT
TREATED WITH DISCRIMINATION BECAUSE ALL IN THE HIGHLAND GROUP WERE
TREATED ALIKE.  IF THE TRAILMOBILE COMPANY HAD ABSORBED THE WHOLLY
OWNED HIGHLAND COMPANY BEFORE WHIRLS RETURNED AND USED THE
CONSOLIDATION AS AN EXCUSE TO DENY WHIRLS REEMPLOYMENT RIGHTS, THIS
COURT WOULD HARDLY HAVE APPROVED SO TRANSPARENT A SCHEME.  THE UNION
HAS NO MORE RIGHT TO RELY ON THE CONSOLIDATION TO JUSTIFY DEPRIVATION
OF SENIORITY RIGHTS. 
..END :





INDEPENDENT WAREHOUSES V. SCHEELE, 331 U.S. 70 


NO. 83.  ARGUED DECEMBER 16, 1946.  - DECIDED APRIL 14, 1947.  - 134
N.J.L. 133, 45 A.2D 703, AFFIRMED. 


1.  A NEW JERSEY MUNICIPAL ORDINANCE WHICH FORBIDS CARRYING ON THE
BUSINESS OF STORING GOODS FOR HIRE WITHOUT PAYMENT OF AN ANNUAL LICENSE
TAX DOES NOT VIOLATE THE COMMERCE CLAUSE OF THE CONSTITUTION WHEN
APPLIED (IN THE CIRCUMSTANCES OF THIS CASE) TO A WAREHOUSE IN WHICH
COAL SHIPPED FROM ANOTHER STATE IS STORED WITHIN THE MUNICIPALITY UNDER
A "TRANSIT" PRIVILEGE, PENDING A DECISION BY THE OWNER WHETHER TO SHIP
IT TO ANOTHER STATE OR TO ANOTHER POINT IN THE SAME STATE - EVEN THOUGH
MOST OF THE COAL ACTUALLY IS SHIPPED TO OTHER STATES.  MINNESOTA V.
BLASIUS, 290 U.S. 1.  PP. 79-85. 

2.  THE FACT THAT THE ORDINANCE APPLIES ONLY TO COMMERCIAL STORAGE
FACILITIES, AND THAT THERE ARE NO OTHER COMMERCIAL STORAGE FACILITIES
IN THE MUNICIPALITY SUBJECT TO THE TAX, DOES NOT RENDER THE ORDINANCE
VIOLATIVE OF THE DUE PROCESS OR EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  P. 86. 

3.  THE DECISION OF THE HIGHEST COURT OF A STATE THAT A LOCAL TAX IS
VALID UNDER THE LAW OF THE STATE IS BINDING UPON THIS COURT.  PP. 86
87. 

4.  THE TAX CAN NOT BE HELD UNCONSTITUTIONAL AS EXCESSIVE, WHERE THE
AMOUNT OF IT IS NOT SHOWN TO BE UNRELATED TO THE VALUE OF THE PRIVILEGE
CONFERRED.  P. 87. 

5.  THE POWER OF THE STATE TO IMPOSE THE TAX HERE IN QUESTION CAN NOT
BE DEFEATED BY PRIVATE CONTRACTUAL ARRANGEMENTS SUCH AS THOSE HERE
INVOLVED.  P. 87. 

6.  THE TAX CAN NOT BE DEEMED PROHIBITIVE IN VIEW OF THE FACT THAT IT
WAS IMPOSED IN LIEU OF OTHER TAXES OF SUBSTANTIALLY THE SAME AMOUNT
WHICH HAD BEEN PAID IN PREVIOUS YEARS.  PP. 87-88. 

7.  SO FAR AS THE ORDINANCE PROVIDES FOR THE PUNISHMENT OF
INDIVIDUALS WHO WORK IN UNLICENSED STORAGE FACILITIES, IT VIOLATES NO
PROVISION OF THE FEDERAL CONSTITUTION.  P. 88. 

8.  ONE WHO HAS MADE NO ATTEMPT TO SECURE THE LICENSE REQUIRED BY THE
ORDINANCE, IS WITHOUT STANDING TO ATTACK THE CONSTITUTIONALITY OF A
PROVISION WHICH ALLEGEDLY GIVES TO THE MUNICIPALITY AN UNCONTROLLED
DISCRETION TO REVOKE LICENSES WHICH MAY BE ISSUED.  P. 88. 

9.  THE CLAIM THAT THE PROVISION OF THE ORDINANCE FOR CUMULATIVE
PENALTIES VIOLATES THE FOURTEENTH AMENDMENT IS WITHOUT SUBSTANCE, SINCE
THE PROVISION HAS NOT BEEN APPLIED IN THIS CASE SO AS TO IMPOSE
CUMULATIVE PENALTIES, AND SINCE THE PROVISION IS EXPRESSLY MADE
SEPARABLE IF INVALID.  PP. 88-89. 

INDEPENDENT WAREHOUSES, INC. ET AL. V. SCHEELE, RECORDER OF THE
TOWNSHIP OF SADDLERIVER, ET AL. 

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

FROM CONVICTIONS OF VIOLATING A MUNICIPAL ORDINANCE PROVIDING FOR THE
LICENSING OF STORAGE WAREHOUSES, THE APPELLANTS, A CORPORATION AND AN
INDIVIDUAL, APPEALED.  THE SUPREME COURT OF NEW JERSEY REVERSED THE
CONVICTIONS.  132 N.J.L. 390, 40 A.2D 796.  THE COURT OF ERRORS AND
APPEALS REVERSED, SUSTAINING THE CONVICTIONS.  134 N.J.L. 133, 45 A.2D
703.  AFFIRMED, P. 89. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

AN ORDINANCE OF SADDLE RIVER TOWNSHIP, NEW JERSEY, FORBIDS CARRYING
ON THE BUSINESS OF STORING GOODS FOR HIRE EXCEPT UPON THE PAYMENT OF AN
ANNUAL LICENSE TAX.  FN1  INDEPENDENT WAREHOUSES, INC., AND THOMPSON,
AN AGENT OF THAT COMPANY, HAVE BEEN CONVICTED AND FINED FOR CONDUCTING
SUCH A BUSINESS WITHOUT PROCURING THE LICENSE OR PAYING THE TAX.  THE
CONVICTIONS HAVE BEEN SUSTAINED BY NEW JERSEY'S HIGHEST COURT.  FN2
THE APPEAL HERE SEEKS TO HAVE THAT JUDGMENT REVERSED ON THE BASIS THAT
THE BUSINESS DONE WAS EXCLUSIVELY INTERSTATE AND CONSEQUENTLY THE
APPLICATION MADE OF THE ORDINANCE CONTRAVENES THE COMMERCE CLAUSE OF
THE FEDERAL CONSTITUTION, ART. I, SEC. 8.  FOURTEENTH AMENDMENT
OBJECTIONS ALSO ARE RAISED.  FN3 

THE MAIN THRUST OF THE ARGUMENT HAS BEEN TOWARD THE COMMERCE CLAUSE
PHASE OF THE CASE.  IN THIS THE CONTROVERSY IS OF THE FAMILIAR
"INTERRUPTION" OR "CESSATION" TYPE.  THE ISSUE ACCORDINGLY REQUIRES
ONLY A DETERMINATION OF THE PROPER APPLICATION TO BE MADE OF WELL
ESTABLISHED LEGAL PRINCIPLES TO THE PARTICULAR CIRCUMSTANCES.  IT IS
WHETHER THE CESSATION TAKING PLACE IN THE MOVEMENT OF GOODS INTERSTATE,
AS SHOWN BY THE RECORD, IS OF A NATURE WHICH PERMITS THE STATE OR A
MUNICIPALITY TO TAX THE GOODS OR SERVICES, HERE THE BUSINESS OF STORING
THEM, RENDERED IN CONNECTION WITH THEIR HANDLING.  FN4 

THE GOVERNING PRINCIPLES WERE STATED IN MINNESOTA V. BLASIUS, 290
U.S. 1, 9-10, AS FOLLOWS: 

"  ...  THE STATES MAY NOT TAX PROPERTY IN TRANSIT IN INTERSTATE
COMMERCE.  BUT, BY REASON OF A BREAK IN THE TRANSIT, THE PROPERTY MAY
COME TO REST WITHIN A STATE AND BECOME SUBJECT TO THE POWER OF THE
STATE TO IMPOSE A NON-DISCRIMINATORY PROPERTY TAX.  FN5  SUCH AN
EXERTION OF STATE POWER BELONGS TO THAT CLASS OF CASES IN WHICH, BY
VIRTUE OF THE NATURE AND IMPORTANCE OF LOCAL CONCERNS, THE STATE MAY
ACT UNTIL CONGRESS, IF IT HAS PARAMOUNT AUTHORITY OVER THE SUBJECT,
SUBSTITUTES ITS OWN REGULATION.  THE 'CRUCIAL QUESTION,' IN DETERMINING
WHETHER THE STATE'S TAXING POWER MAY THUS BE EXERTED, IS THAT OF
'CONTINUITY OF TRANSIT.'  CARSON PETROLEUM CO. V. VIAL, 279 U.S. 95,
101. 

"IF THE INTERSTATE MOVEMENT HAS NOT BEGUN, THE MERE FACT THAT SUCH A
MOVEMENT IS CONTEMPLATED DOES NOT WITHDRAW THE PROPERTY FROM THE
STATE'S POWER TO TAX IT.  ...  IF THE INTERSTATE MOVEMENT HAS BEGUN, IT
MAY BE REGARDED AS CONTINUING, SO AS TO MAINTAIN THE IMMUNITY OF THE
PROPERTY FROM STATE TAXATION, DESPITE TEMPORARY INTERRUPTIONS DUE TO
THE NECESSITIES OF THE JOURNEY OR FOR THE PURPOSE OF SAFETY AND
CONVENIENCE IN THE COURSE OF THE MOVEMENT.  ...  FORMALITIES, SUCH AS
THE FORMS OF BILLING, AND MERE CHANGES IN THE METHOD OF TRANSPORTATION
DO NOT AFFECT THE CONTINUITY OF THE TRANSIT.  THE QUESTION IS ALWAYS
ONE OF SUBSTANCE, AND IN EACH CASE IT IS NECESSARY TO CONSIDER THE
PARTICULAR OCCASION OR PURPOSE OF THE INTERRUPTION DURING WHICH THE TAX
IS SOUGHT TO BE LEVIED.  ... 

"WHERE PROPERTY HAS COME TO REST WITHIN A STATE, BEING HELD THERE AT
THE PLEASURE OF THE OWNER, FOR DISPOSAL OR USE, SO THAT HE MAY DISPOSE
OF IT EITHER WITHIN THE STATE, OR FOR SHIPMENT ELSEWHERE, AS HIS
INTEREST DICTATES, IT IS DEEMED TO BE A PART OF THE GENERAL MASS OF
PROPERTY WITHIN THE STATE AND IS THUS SUBJECT TO ITS TAXING POWER." 

SINCE THE CIRCUMSTANCES CHARACTERIZING THE INTERRUPTION ARE OF
CONTROLLING IMPORTANCE, WE TURN TO THE DETAILS OF THE MOVEMENT AND OF
THE STOPPAGE SHOWN BY THE RECORD. 

                      I. 

THE SUIT IS THE CULMINATION OF A CONTROVERSY EXTENDING BACK TO 1939,
WITH EARLIER LITIGIOUS CHAPTERS IN THE STATE AND FEDERAL COURTS.  IT
GROWS OUT OF THE OPERATION OF FACILITIES FOR STORING AND HANDLING COAL
UNDER VARIOUS ARRANGEMENTS BETWEEN THE ERIE RAILROAD COMPANY AND OTHER
CORPORATIONS AFFILIATED FOR THIS AND OTHER ENTERPRISES BY STOCK
OWNERSHIP OR BY CONTRACT. 

THE PENNSYLVANIA COAL COMPANY IS A WHOLLY OWNED SUBSIDIARY OF ERIE. 
IT OWNS AND OPERATES COAL MINES IN PENNSYLVANIA.  IN 1901 IT ACQUIRED
67.25 ACRES OF LAND IN SADDLE RIVER TOWNSHIP, NEW JERSEY.  THIS ACREAGE
AND ITS FACILITIES, KNOWN AS COALBERG, ARE LOCATED ON THE NEW YORK,
SUSQUEHANNA AND WESTERN RAILROAD AND PERFORM FUNCTIONS CONNECTED WITH
THAT ROAD'S OPERATIONS NOT MATERIAL TO THIS CAUSE.  COALBERG ALSO IS
CONNECTED DIRECTLY WITH THE BERGEN COUNTY RAILROAD, A FREIGHT CUTOFF OF
ERIE.  ITS CHIEF PURPOSE, AND THE ONLY ONE RELEVANT TO THIS
CONTROVERSY, IS TO PROVIDE STORAGE FOR COAL SHIPPED IN FROM THE COAL
COMPANY'S PENNSYLVANIA MINES AND LATER SHIPPED OUT TO VARIOUS
DESTINATIONS. 

PRIOR TO 1939, COALBERG WAS OPERATED BY THE COAL COMPANY OR ITS
LESSEES AS A PRIVATE BUSINESS, NOT AS A PUBLIC UTILITY.  DURING THIS
TIME THE TOWNSHIP LEVIED PERSONAL PROPERTY TAXES UPON THE COAL IN
STORAGE, ASSESSING AND COLLECTING THEM FROM ITS OWNERS.  FN6  THESE
WERE, AS THEY ARE NOW, CHIEFLY COAL DISTRIBUTORS USING COALBERG'S
STORAGE FACILITIES, PRINCIPALLY BECAUSE OF THEIR ACCESSIBILITY TO
DISTRIBUTING CENTERS, ESPECIALLY IN THE VICINITY OF NEW YORK CITY, AND
TO SHIPPING FACILITIES BOTH BY RAIL AND BY WATER.  FN7 

IN 1939, HOWEVER, BY ARRANGEMENTS TO BE SET FORTH INVOLVING ERIE, THE
COAL COMPANY AND INDEPENDENT WAREHOUSES, COALBERG WAS CONVERTED INTO A
PUBLIC UTILITY TO SERVE SHIPPERS OF COAL ON ERIE LINES.  UNDER NEW
JERSEY LAW, GOODS STORED IN WAREHOUSES CONDUCTED FOR HIRE ARE EXEMPTED
FROM PERSONAL PROPERTY TAXES.  REV. STAT. N.J. SEC. 54:4-3.20.  THE
TOWNSHIP, DESPITE THE CHANGE IN COALBERG'S MODE OF OPERATION, CONTINUED
TO LEVY SUCH TAXES ON THE STORED COAL UNTIL THE 1940 ASSESSMENT WAS
INVALIDATED IN THE STATE COURTS.  PATTISON & BOWNS V. SADDLE RIVER
TOWNSHIP, 129 N.J.L. 135; 130 N.J.L. 177. 

THE MUNICIPALITY'S RESULTING LOSS IN REVENUE AMOUNTED TO ABOUT EIGHT
PER CENT OF THE TOTAL COLLECTED FOR LOCAL, COUNTY AND STATE PURPOSES. 
TO MAKE UP FOR THIS, AS ITS BRIEF HERE CANDIDLY ADMITS, THE TOWNSHIP
ENACTED THE ORDINANCE NOW IN QUESTION, ACTING UNDER OTHER PROVISIONS OF
STATE LAW.  N.J. STAT. ANN. SECS. 40:52-1, 40:52-2.  THE EFFECT WAS TO
SHIFT THE DIRECT INCIDENCE OF THE TAX FROM THE OWNERS OF THE COAL,
I.E., THE SHIPPER-DISTRIBUTORS, TO THE OPERATOR OF THE STORAGE BUSINESS
AND TO CHANGE ITS CHARACTER FROM A DIRECT PROPERTY TAX TO THAT OF A
LICENSE OR FRANCHISE TAX FOR THE PRIVILEGE OF CONDUCTING THAT BUSINESS
IN THE STATE.  THE AMOUNT OF REVENUE THUS PRODUCED, THOUGH IN DISPUTE,
SUBSTANTIALLY WILL REPAIR THE LOSS SUFFERED FROM INVALIDATION OF THE
PROPERTY TAX.  THIS SUIT IS THE OUTGROWTH OF THE TOWNSHIP'S EFFORT TO
ENFORCE THE NEW TAXING PROVISIONS. 

IT IS NECESSARY TO STATE IN SOME DETAIL THE ARRANGEMENTS MADE IN 1939
BY WHICH THE CHANGE WAS BROUGHT ABOUT IN THE MODE OF OPERATING
COALBERG.  AN AGREEMENT THEN MADE BETWEEN THE COAL COMPANY AND ERIE
PROVIDES THAT THE FORMER SHALL OPERATE COALBERG "AS A PUBLIC SERVICE
FACILITY FOR SHIPPERS OF PREPARED ANTHRACITE COAL ON ERIE LINES
DESIRING STORAGE SPACE IN ACCORDANCE WITH AND UNDER THE RATES NAMED IN
A CERTAIN TARIFF ON FILE WITH THE INTERSTATE COMMERCE COMMISSION AND
THE PUBLIC UTILITIES COMMISSION OF THE STATE OF NEW JERSEY  ...  "  THE
AGREEMENT RECITES THAT IT IS MADE IN VIEW OF THE CONSIDERATIONS THAT
THE COAL COMPANY HAS NO NEED FOR COALBERG'S STORAGE FACILITIES AND THAT
THEY ARE OF USE TO ERIE IN AFFORDING "FACILITIES FOR THE STORAGE OF
PREPARED ANTHRACITE COAL FOR SHIPPERS ON ERIE LINES WHEREON SAID
COALBERG STORAGE YARD IS LOCATED SO THAT SHIPMENTS OF COAL MAY NOT BE
DIVERTED TO OTHER AND COMPETING LINES ON WHICH FACILITIES FOR COAL
STORAGE ARE AVAILABLE  ...  "  ERIE PAYS THE NET MONTHLY LOSS, IF ANY,
OF OPERATING THE YARD AND THE COAL COMPANY REMITS TO ERIE THE NET
MONTHLY SURPLUS, IF ANY.  ERIE ALSO UNDERTAKES TO MAINTAIN AN AGENT AT
COALBERG DULY AUTHORIZED ON ITS BEHALF TO ISSUE WAREHOUSE RECEIPTS FOR
COAL PLACED IN STORAGE BY SHIPPERS. 

THE COAL COMPANY HAS DISCHARGED THE OPERATING FUNCTION UNDER ITS
AGREEMENT WITH ERIE BY AN ARRANGEMENT ALSO MADE IN 1939 WITH
INDEPENDENT WAREHOUSES, WHICH IS A NEW YORK CORPORATION ENGAGED IN THE
WAREHOUSING BUSINESS.  THE COAL COMPANY LEASED COALBERG TO INDEPENDENT
WAREHOUSES FOR $1.00 A YEAR AND THE LATTER UNDERTOOK TO OPERATE THE
PLANT FOR A CONSIDERATION WHICH NOW AMOUNTS TO APPROXIMATELY $500 A
YEAR.  THE AGREEMENT BETWEEN THE COAL COMPANY AND ERIE GOVERNS THE
MANNER OF COALBERG'S OPERATION BY INDEPENDENT WAREHOUSES. 

UNDER THESE ARRANGEMENTS PURCHASERS FROM THE COAL COMPANY WHO SHIP
COAL FROM THE MINES DESIGNATE THE DESTINATION ON THE SHIPPING PAPERS. 
IF THEY DESIGNATE COALBERG, THE COAL IS SENT THERE IN RAILROAD CARS. 
IT IS UNLOADED TO THE STORAGE PILE WHERE IT IS KEPT UNTIL ORDERED OUT
BY THE OWNER.  IT IS THEN RELOADED INTO RAILROAD CARS, AND WHEN IT IS
RESHIPPED THERE IS A NEW BILLING TO THE NEW DESTINATION.  MOST OF THE
COAL, AFTER IT HAS BEEN STORED, GOES TO STATES OTHER THAN NEW JERSEY. 
SOME, HOWEVER, IS MARKETED IN NEW JERSEY.  IT IS DISPUTED WHETHER THERE
IS ANY LOCAL DISTRIBUTION IN THE TOWNSHIP, BUT IF SO THE AMOUNT IS
COMPARATIVELY INSIGNIFICANT. 

THE FINANCIAL ARRANGEMENTS UNDER THE GOVERNING TARIFF ARE AS
FOLLOWS.  ON ARRIVAL OF THE SHIPMENTS AT COALBERG THE TRANSPORTATION
CHARGES ON THE MOVEMENT FROM THE MINE TO COALBERG ARE PAID TO THE ERIE
FREIGHT AGENT AT COALBERG.  WHEN THE COAL IS MOVED AGAIN AFTER STORAGE,
THE REMAINDER OF THE THROUGH TARIFF RATE FROM THE POINT OF ORIGINAL
SHIPMENT AT THE MINE IN PENNSYLVANIA IS PAID.  THIS ARRANGEMENT IS
KNOWN AS THE TRANSIT PRIVILEGE.  "THE PRIVILEGE OF TRANSIT ENABLES
GRAIN (HERE COAL) TO BE SHIPPED FROM POINT A TO POINT B, THERE TO BE
STORED, MARKETED, OR PROCESSED, AND LATER RESHIPPED TO POINT C AT A
RATE LESS THAN THE COMBINATION OF THE SEPARATE RATES FROM A TO B AND B
TO C."  BOARD OF TRADE V. UNITED STATES, 314 U.S. 534, 537-538, AND
AUTHORITIES CITED. 

THE STORAGE FACILITIES GIVEN TO SHIPPERS ARE FREE FOR A PERIOD OF TWO
YEARS,  FN8  ALTHOUGH A CHARGE IS MADE BY ERIE FOR UNLOADING THE CARS
INTO THE STOCK PILE AND FOR RELOADING THE CARS FOR RESHIPMENT.  A
CHARGE IS ALSO MADE BY INDEPENDENT WAREHOUSES UPON SUCH COAL OWNERS AS
OBTAIN WAREHOUSE RECEIPTS FROM IT. 

THE LICENSING ORDINANCE APPLIED IN THIS CASE WAS ADOPTED IN 1943,
FOLLOWING UPON THE NEW JERSEY DECISION IN PATTISON & BOWNS V. SADDLE
RIVER TOWNSHIP, SUPRA.  THE ORDINANCE PROVIDES: 

"NO PERSON, FIRM OR CORPORATION SHALL CONDUCT OR CARRY ON THE
BUSINESS OF THE STORAGE OF PERSONAL PROPERTY IN A WAREHOUSE ENGAGED IN
STORING GOODS FOR HIRE OR WORK IN, OCCUPY, OR, DIRECTLY, OR INDIRECTLY
IN ANY MANNER WHATSOEVER, UTILIZE ANY PLACE OR PREMISES IN WHICH IS
CONDUCTED OR CARRIED ON THE STORAGE OF PERSONAL PROPERTY IN A WAREHOUSE
ENGAGED IN THE BUSINESS OF STORING GOODS FOR HIRE, UNLESS AND UNTIL
THERE SHALL BE GRANTED BY THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF
SADDLE RIVER IN ACCORDANCE WITH THE TERMS OF THIS ORDINANCE, AND SHALL
BE IN FORCE AND EFFECT, A LICENSE TO CONDUCT SAID BUSINESS FOR THE
PLACE AND PREMISES IN OR AT WHICH SAID BUSINESS SHALL BE CONDUCTED AND
CARRIED ON." 

THE ORDINANCE SPECIFIES THAT FOR THE LICENSE THERE SHALL BE CHARGED
AND COLLECTED IN ADVANCE AN ANNUAL FEE OF THREEQUARTERS OF A CENT FOR
EACH SQUARE FOOT OF GROUND IN THE TOWNSHIP WHERE THE BUSINESS IS
CARRIED ON.  THERE IS ALSO A PENALTY CLAUSE,  FN9  IN ADDITION TO OTHER
PROVISIONS NOT NOW PERTINENT. 

INDEPENDENT WAREHOUSES DID NOT APPLY FOR THE LICENSE OR PAY THE TAX
FOR 1943.  CONSEQUENTLY THAT COMPANY AND THOMPSON WERE CONVICTED IN THE
MAGISTRATE'S COURT BEFORE APPELLEE SCHEELE, THE RECORDER OF THE
TOWNSHIP, FOR HAVING VIOLATED THE ORDINANCE BY CONDUCTING THE STORAGE
OPERATIONS AT COALBERG WITHOUT COMPLYING WITH ITS REQUIREMENTS.  EACH
WAS FINED $200.  FN10  THE COAL COMPANY AND ERIE WERE ALLOWED TO
INTERVENE WHEN THE CASE WENT BEFORE THE NEW JERSEY SUPREME COURT,
BECAUSE OF THEIR OBVIOUS INTEREST IN THE OUTCOME OF THE LITIGATION. 
THAT COURT HELD THE ORDINANCE UNCONSTITUTIONAL AS AN UNDUE BURDEN ON
INTERSTATE COMMERCE AND REVERSED THE CONVICTIONS.  132 N.J.L. 390.  IN
TURN THE NEW JERSEY COURT OF ERRORS AND APPEALS REVERSED THE SUPREME
COURT'S DETERMINATION.  134 N.J.L. 133.  IT HELD THAT THE ORDINANCE WAS
VALID UNDER THE PROVISIONS OF STATE LAW, AND THAT NEITHER THE COMMERCE
CLAUSE NOR THE FOURTEENTH AMENDMENT GUARANTIES RELIED UPON HAD BEEN
INFRINGED.  THE CASE COMES HERE ON APPEAL, PURSUANT TO SEC. 237(A) OF
THE JUDICIAL CODE.  SEE KING MFG. CO. V. AUGUSTA, 277 U.S. 100; JAMISON
V. TEXAS, 318 U.S. 413, 414. 

                                 II.    THAT THE STORAGE OF THE
COAL IS PART OF A TRANSIT PRIVILEGE DOES NOT IN ITSELF SUSTAIN
APPELLANTS' CLAIM THAT THE INTERSTATE MOVEMENT HAD NOT STOPPED
SUFFICIENTLY FOR THE STATE'S TAXING POWER TO ATTACH WHEN THE COAL
REACHED AND WAS STORED IN COALBERG.  CF. MINNESOTA V. BLASIUS, SUPRA;
BACON V. ILLINOIS, 227 U.S. 504.  IT HAS LONG BEEN RECOGNIZED THAT
TRANSIT PRIVILEGES REST "UPON THE FICTION THAT THE INCOMING AND THE
OUTGOING TRANSPORTATION SERVICES, WHICH ARE IN FACT DISTINCT,
CONSTITUTE A CONTINUOUS SHIPMENT OF THE IDENTICAL ARTICLE FROM POINT OF
ORIGIN TO FINAL DESTINATION."  CENTRAL RAILROAD CO. V. UNITED STATES,
257 U.S. 247, 257.  SEE ALSO ATCHISON, TOPEKA & SANTA FE R. CO. V.
UNITED STATES, 279 U.S. 768, 779-780.  OF COURSE THIS FICTION, WHICH
MAY BE DESIRABLE FOR RATEMAKING OR OTHER PURPOSES, CANNOT CONTROL THE
POWER OF A STATE OR MUNICIPALITY TO TAX ACTIVITIES PROPERLY SUBJECT TO
EXERCISE OF THAT POWER APART FROM THE FICTION'S APPLICATION TO THEM. 

INDEED, THE FACTS OF THIS CASE DEMONSTRATE THAT HERE AT LEAST THE
FICTION IS COMPLETE.  THEY SHOW THAT THE JOURNEY OF THE COAL FROM THE
PENNSYLVANIA MINES TO COALBERG AND THE SUBSEQUENT JOURNEYS UPON LEAVING
COALBERG WERE NOT PARTS OF A "CONTINUITY OF TRANSIT" IN THE SENSE HELD
BY THIS COURT'S PREVIOUS DECISIONS TO PRECLUDE A VALID EXERCISE OF THE
STATES' TAXING OR REGULATORY POWERS.  SEE, E.G., PITTSBURG & SOUTHERN
COAL CO. V. BATES, 156 U.S. 577; GENERAL OIL CO. V. CRAIN, 209 U.S.
211; BACON V. ILLINOIS, SUPRA; SUSQUEHANNA COAL CO. V. SOUTH AMBOY, 228
U.S. 665. 

A CHARACTERISTIC FEATURE OF THOSE CASES IN WHICH THE STATE HAS BEEN
ALLOWED TO TAX PROPERTY WHICH HAS COME TO REST AFTER AN INTERSTATE
JOURNEY IS THAT AT THE TIME THE TAX IS LAID IT CANNOT BE DETERMINED
WHAT THE ULTIMATE DESTINATION OR USE OF THE PROPERTY MAY BE.  THUS IN
GENERAL OIL CO. V. CRAIN, SUPRA, THE OIL WAS SHIPPED TO MEMPHIS AND
HELD THERE UNTIL REQUIRED TO SUPPLY ORDERS FROM OUT-OF-STATE
CUSTOMERS.  IN BROWN V. HOUSTON, 114 U.S. 622, COAL SENT FROM
PENNSYLVANIA TO NEW ORLEANS WAS HELD TAXABLE IN LOUISIANA BECAUSE,
ALTHOUGH SOME OF IT WAS SUBSEQUENTLY EXPORTED, IT "WAS BEING HELD FOR
SALE TO ANYONE WHO MIGHT WISH TO BUY."  CHAMPLAIN CO. V. BRATTLEBORO,
260 U.S. 366, 376.  IN BACON V. ILLINOIS, SUPRA, THE GRAIN SENT TO
BACON'S ELEVATOR WAS AT HIS COMPLETE DISPOSAL.  "HE MIGHT SELL THE
GRAIN IN ILLINOIS OR FORWARD IT AS HE SAW FIT."  ALTHOUGH HIS INTENTION
WAS TO FORWARD IT AFTER INSPECTION, GRADING, ETC., THIS PURPOSE WAS
HELD IRRELEVANT.  227 U.S. AT 516.  AND IN SUSQUEHANNA COAL CO. V.
SOUTH AMBOY, SUPRA, ALTHOUGH THERE WAS AN ANTICIPATION OF ORDERS FOR
THE COAL UNLOADED AT SOUTH AMBOY, YET THERE WERE NO ACTUAL ORDERS FROM
CUSTOMERS.  SEE ALSO NASHVILLE, C. & ST. L.R. CO. V. WALLACE, 288 U.S.
249; EDELMAN V. BOEING AIR TRANSPORT, 289 U.S. 249. 

THOSE CASES ARE INDISTINGUISHABLE FROM THIS ONE AS TO THE FACTS AND
THE EFFECT OF THE STOPPAGE.  ONCE THE COAL HAS REACHED COALBERG, NO ONE
CAN DETERMINE, WITHOUT RECEIVING AN ORDER FROM THE OWNER, TO WHAT POINT
OR PERSON IT FINALLY WILL BE SENT OR TO WHAT USE IT WILL BE PUT. 
INDEED, AT THE ACTUAL TIME OF STORAGE, EVEN THE OWNER MAY NOT KNOW
WHERE THE COAL WILL GO NEXT, FOR THE VERY PURPOSE OF THE STORAGE IS IN
PART TO MEET SEASONAL DEMAND.  FN11  AND WHILE THE FORM OF BILLING IS
NOT CONCLUSIVE, MINNESOTA V. BLASIUS, SUPRA, THE FACT THAT THE COAL IS
BILLED TO COALBERG AND IS NOT REBILLED UNTIL THE OWNER ASKS THAT IT BE
RELEASED FROM STORAGE FURTHER SHOWS THAT THE FINAL DESTINATION IS NOT
KNOWN BY THE OWNER OR BY OTHERS. 

MOREOVER, IN ALL THESE CASES THE DURATION OF THE CESSATION OF TRANSIT
IS INDEFINITE AND IN THIS CASE MAY EXTEND AS LONG AS TWO YEARS WITHOUT
LOSS OF TRANSIT PRIVILEGE.  INDEED, EXCEPT FOR THAT LOSS IT MAY EXTEND
INDEFINITELY, SINCE UNDER THE CONTROLLING TARIFF ERIE DOES NOT REQUIRE,
BUT ONLY RESERVES THE RIGHT TO REQUIRE, REMOVAL AT THE END OF TWO
YEARS.  FN12  IT IS ALSO SIGNIFICANT THAT INVARIABLY THE GOODS ARE
FUNGIBLES, A FACT POINTING UP THE FICTIONAL BASIS OF THE IN-TRANSIT
PRIVILEGE.  THE GOODS WHICH ARE SENT INITIALLY INTO THE INTERSTATE
COMMERCE STREAM ARE NOT THE IDENTICAL GOODS WHICH FINALLY ARRIVE AT THE
PLACE OF CONSUMPTION. 

IN VIEW OF ALL THESE CONSIDERATIONS, THE CASE FALLS MORE
APPROPRIATELY IN THE CATEGORY ALLOWING THE STATE'S TAXING POWER TO
APPLY, THAN IN THE ONE DENYING ITS APPLICABILITY.  THE INTERRUPTION
HARDLY CAN BE HELD TO BE "DUE TO THE NECESSITIES OF THE JOURNEY OR FOR
THE PURPOSE OF SAFETY AND CONVENIENCE IN THE COURSE OF THE MOVEMENT,"
MINNESOTA V. BLASIUS, 290 U.S. AT 9-10, BROAD AS MAY BE THE LATITUDE
GIVEN FOR SUCH INCIDENTS OF TRANSIT.  MORE IS INVOLVED HERE THAN
STOPPING TO TAKE ADVANTAGE OF SUCH LATITUDES.  THE CASE THEREFORE IS
ONE, AGAIN IN THE LANGUAGE OF THE BLASIUS CASE, "WHERE PROPERTY HAS
COME TO REST WITHIN A STATE, BEING HELD THERE AT THE PLEASURE OF THE
OWNER, FOR DISPOSAL OR USE, SO THAT HE MAY DISPOSE OF IT EITHER WITHIN
THE STATE, OR FOR SHIPMENT ELSEWHERE, AS HIS INTEREST DICTATES  ...  "
290 U.S. AT 10. 

THE FACTS BRING THE CASE EXACTLY WITHIN THIS DESCRIPTION, ALTHOUGH
THE RECORD SHOWS THAT MOST OF THE COAL AFTER STORAGE GOES TO OTHER
STATES AND LITTLE, IF ANY, IS DISTRIBUTED LOCALLY AT COALBERG.  NOT
WHAT ULTIMATELY HAPPENS TO THE GOODS OR WHERE THEY FINALLY GO, BUT THE
OCCASION AND PURPOSE OF THE INTERRUPTION ARE CONTROLLING.  "THE
QUESTION IS ALWAYS ONE OF SUBSTANCE, AND IN EACH CASE IT IS NECESSARY
TO CONSIDER THE PARTICULAR OCCASION OR PURPOSE OF THE INTERRUPTION
DURING WHICH THE TAX IS SOUGHT TO BE LEVIED."  MINNESOTA V. BLASIUS,
290 U.S. AT 10. 

HERE THE CESSATION TAKES PLACE NOT SIMPLY FOR THE CARRIER'S TRANSIT
REASONS RELATING TO THE NECESSITIES OR CONVENIENCE OF THE JOURNEY, BUT
FOR REASONS PRIMARILY CONCERNED WITH THE OWNER'S BUSINESS INTERESTS. 
AS IN THE BACON AND SUSQUEHANNA COAL CASES, SUPRA, HE IS ENTIRELY FREE
TO KEEP OR MARKET THE GOODS IN NEW JERSEY OR TO SEND THEM ELSEWHERE. 
MARKETING CONSIDERATIONS PRIMARILY, AND IT MAY BE EXCLUSIVELY,
DETERMINE THIS CHOICE AND MANY OR ALL OF THE CONTROLLING FACTORS MAY
NOT ARISE UNTIL AFTER THE COAL HAS REACHED COALBERG OR INDEED MANY
MONTHS LATER. 

THE SITUATION IN THIS RESPECT IS NOT MATERIALLY DIFFERENT FROM THOSE
INVOLVED IN THE SUSQUEHANNA COAL, BACON, AND OTHER CASES CITED, OR
INDEED FROM ONE IN WHICH A COAL DISTRIBUTOR MIGHT PLACE HIS STORAGE
FACILITIES AT SOME DISTANCE FROM HIS PLACE OF MARKET, AS AT A NEAR-BY
WAY STATION, IN ORDER TO REDUCE THE COST OF HIS STORAGE OPERATIONS. 
THAT REASONS OF ECONOMY AND CONVENIENCE OR EVEN OF NECESSITY ARISING
FROM THE ABSENCE OR PROHIBITIVE COST OF STORAGE SPACE AT THE IMMEDIATE
POINT OF DISTRIBUTION MIGHT LEAD HIM THUS TO LOCATE HIS STORAGE
OPERATIONS, AND THEREBY INCUR THE NECESSITY AND EXPENSE OF HAULING THE
GOODS FROM STORAGE TO MARKET, HARDLY COULD BE HELD TO MAKE THE
INTERRUPTION AN INCIDENT OF TRANSIT RATHER THAN ONE OF HIS OWN BUSINESS
POLICY AND INTEREST.  THAT HE MAY SECURE THE SAME ADVANTAGES BY USING
THE STORAGE FACILITIES OF OTHERS FOR LIKE PURPOSES, RATHER THAN HIS
OWN, DOES NOT CHANGE THE RESULT.  IN NEITHER CASE DOES THE ARRANGEMENT
DEFEAT THE STATE'S POWER TO TAX HIS PROPERTY SO LOCATED OR HIS BUSINESS
THUS CONDUCTED. 

MOREOVER, AS HAS BEEN NOTED, SOME OF THE COAL REMAINS IN NEW JERSEY,
BEING SHIPPED OUT FROM COALBERG AS THE SHIPPER DIRECTS.  AS TO THIS ALL
INTERSTATE TRANSPORTATION HAS ENDED.  THE FACT THAT THE OWNER ELECTS TO
TAKE ADVANTAGE OF COALBERG'S STORAGE FACILITIES FOR CONDUCTING HIS
STORAGE OPERATIONS RATHER THAN HIS OWN LOCATED AT THE POINT OR POINTS
OF FINAL DISTRIBUTION IN NEW JERSEY, WHETHER NEAR TO COALBERG OR AT
SOME DISTANCE, DOES NOT MAKE THE FINAL WHOLLY INTRASTATE MOVEMENT
BETWEEN THOSE POINTS A LEG OF THE INITIAL INTERSTATE MOVEMENT BEGUN AT
THE MINE. 

AS FOR THE COAL MOVING OUT OF COALBERG INTERSTATE, THE FACT THAT THIS
MOVEMENT CROSSES A STATE LINE MAKES IT OF COURSE AN INTERSTATE
MOVEMENT.  BUT THIS DOES NOT MAKE IT PART OF A CONTINUOUS JOURNEY
BEGINNING AT THE MINE AND ENDING IN THE SECOND STATE OF DESTINATION. 
INDEED, NOT UNTIL AFTER THE STORAGE HAS TAKEN PLACE IS IT DETERMINED OR
CAN IT BE KNOWN WHETHER THIS COAL WILL MOVE OUT OF COALBERG INTERSTATE
OR INTRASTATE.  AND THIS IS BECAUSE IT CANNOT BE KNOWN BEFORE THAT TIME
WHETHER THE OWNER'S INTEREST, DISCONNECTED FROM THE ORDINARY AND USUAL
INCIDENTS OF TRANSPORTATION, WILL DICTATE ONE MARKET OR USE RATHER THAN
ANOTHER.  INTERRUPTIONS THUS GOVERNED CANNOT BE CLASSIFIED AS
INTERRUPTIONS MERELY INCIDENT TO TRANSIT OR DICTATED BY ITS NECESSITIES
OR CONVENIENCE. 

THE 1939 CHANGE IN COALBERG'S MODE OF OPERATION DID NOT ALTER IN ANY
SUBSTANTIAL WAY THE CHARACTER, DURATION OR PURPOSE OF THE STOPPAGE. 
SINCE THEN AS BEFORE, THE PRIMARY REASONS DICTATING THE SHIPPERS'
ACTION IN TAKING ADVANTAGE OF IT ARE THEIR BUSINESS REASONS RATHER THAN
TRANSIT REASONS AS SUCH.  ACCORDINGLY THE STATE'S POWER TO TAX THE
GOODS STORED COULD NOT BE AFFECTED BY THAT CHANGE.  THAT THE STATE HAS
CHOSEN TO DISCONTINUE EXERCISING IT AS A MATTER OF STATE TAXING POLICY
CAN MAKE NO DIFFERENCE IN THIS RESPECT.  NOR CAN THIS FACT, OR THE
CHANGE IN METHOD OF OPERATION, DEFEAT THE STATE'S POWER TO TAX THE
BUSINESS OF FURNISHING THE FACILITIES FOR STORAGE, SINCE THAT BUSINESS
ALSO BECOMES LOCAL OR INTERSTATE DEPENDING UPON THE PURPOSES OF THE
STOPPAGE, WHETHER FOR TRANSIT REASONS OR CHIEFLY FOR NONTRANSIT ONES. 

THE AUTHORITIES ABOVE CITED, IT IS TRUE, GENERALLY INVOLVED PROPERTY
TAXES LEVIED UPON THE STORED COAL.  BUT THEIR CONTROLLING PRINCIPLE
APPLIES EQUALLY TO FRANCHISE OR OTHER TAXES UPON THE BUSINESS OF
FURNISHING THE STORAGE FACILITIES.  CF. GENERAL OIL CO. V. CRAIN, 209
U.S. 211; AMERICAN STEEL & WIRE CO. V. SPEED, 192 U.S. 500.  IT WOULD
BE AN IMPERMISSIBLE ANOMALY TO HOLD THAT THE GOODS STORED MAY BE TAXED,
BECAUSE THE INTERRUPTION OF TRANSIT IS FOR NONTRANSIT PURPOSES, BUT
THAT THE BUSINESS OF FURNISHING THE FACILITIES FOR STORING THEM IS NOT
AFFECTED OR GOVERNED LEGALLY BY THE SAME PURPOSES, FOR APPLYING THE
STATE'S POWERS OF TAXATION. 

ACCORDINGLY, THE CASE IS GOVERNED BY THE PRIOR DECISIONS ALLOWING
STATES AND MUNICIPALITIES TO TAX IN SITUATIONS OF THIS SORT.  IT
FOLLOWS THAT THE TAX IS NOT FORBIDDEN BECAUSE IT IS PART OF A LICENSING
MEASURE.  EVEN WHERE IT IS UNDISPUTED THAT THE COMMERCE IS EXCLUSIVELY
INTERSTATE IN NATURE, "NOT THE MERE FACT OR FORM OF LICENSING, BUT WHAT
THE LICENSE STANDS FOR BY WAY OF REGULATION IS IMPORTANT."  ROBERTSON
V. CALIFORNIA, 328 U.S. 440, 458.  SEE ALSO UNION BROKERAGE CO. V.
JENSEN, 322 U.S. 202; FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S. 17.  NOR
DOES ANYTHING IN THE INTERSTATE COMMERCE ACT FORBID LOCAL TAXATION
WHERE IT IS OTHERWISE PERMISSIBLE.  THE TAX THEREFORE IS VALID UNDER
THE COMMERCE CLAUSE. 

                                 III. 

WHETHER THE TAX AND THE LICENSING MEASURE AS APPLIED MAY STAND UNDER
THE FOURTEENTH AMENDMENT ALSO MUST BE CONSIDERED.  APPELLANTS SAY THAT
THE ORDINANCE IS DISCRIMINATORY AND UNREASONABLE.  DISCRIMINATION IS
CLAIMED BECAUSE THE ORDINANCE IS APPLICABLE ONLY TO COMMERCIAL
WAREHOUSES AND NOT TO PRIVATE WAREHOUSES AND BECAUSE THERE ARE NO OTHER
COMMERCIAL WAREHOUSING FACILITIES IN THE TOWNSHIP SUBJECT TO THE TAX. 
THIS CONTENTION IS GROUNDED ON THE PROVISIONS OF NEW JERSEY LAW, NOTED
ABOVE, EXEMPTING PROPERTY STORED IN COMMERCIAL WAREHOUSES FROM
TAXATION.  IT ALSO IS CLOSELY RELATED TO THE FURTHER CLAIM THAT THE TAX
IS PROHIBITORY AND UNREASONABLE, AND THE TWO CLAIMS MAY BE CONSIDERED
TOGETHER. 

"IT IS INHERENT IN THE EXERCISE OF THE POWER TO TAX THAT A STATE BE
FREE TO SELECT THE SUBJECTS OF TAXATION AND TO GRANT EXEMPTIONS. 
NEITHER DUE PROCESS NOR EQUAL PROTECTION IMPOSES UPON A STATE ANY RIGID
RULE OF EQUALITY OF TAXATION.  ...  THIS COURT HAS REPEATEDLY HELD THAT
INEQUALITIES WHICH RESULT FROM A SINGLING OUT OF ONE PARTICULAR CLASS
FOR TAXATION OR EXEMPTION, INFRINGE NO CONSTITUTIONAL LIMITATION." 
CARMICHAEL V. SOUTHERN COAL & COKE CO., 301 U.S. 495, 509. 

WE NEED NOT CONSIDER IN THIS CONNECTION THE ULTIMATE POWER OF THE
STATE TO TAX,  FN13  FOR WE ARE OF OPINION THAT NEITHER THE SELECTION
MADE HERE NOR THE AMOUNT OF THE TAX IS BARRED BY THE FOURTEENTH
AMENDMENT. 

THE NEW JERSEY COURT OF ERRORS AND APPEALS HAS HELD THAT THE PRESENT
TAX IS NOT AN ILLEGAL EVASION OF THE STATE LAWS EXEMPTING PERSONAL
PROPERTY IN COMMERCIAL WAREHOUSES FROM PROPERTY TAXES, AND THAT THE
MUNICIPALITY WAS EMPOWERED BY STATE LAW TO LEVY THIS TAX.  THOSE
RULINGS ARE CONCLUSIVE UPON US.  NOR IS IT MATERIAL TO ANY QUESTION WE
HAVE TO DECIDE THAT THE PRACTICAL RESULT OF THE VALID TAXING POWER
GIVEN THE MUNICIPALITY ENABLED IT TO MAKE UP THE LOSS IN REVENUE
SUFFERED WHEN COALBERG WAS TRANSFORMED TO A PUBLIC FACILITY. 

CONSTITUTIONALLY SPEAKING, THE TAX IS NOT INVALID AS BEING
UNREASONABLY LARGE FOR THE PRIVILEGE CONFERRED.  FN14  IT IS NOT SHOWN
THAT THE EXACTION IS UNRELATED TO THE VALUE OF THE PRIVILEGE CONFERRED
AND THE COURT OF ERRORS AND APPEALS FOUND TO THE CONTRARY.  FN15
PRIVATE CONTRACTUAL ARRANGEMENTS, SUCH AS HAVE BEEN MADE HERE,  FN16
CANNOT BE EFFECTIVE TO DEFEAT THE STATE'S POWER TO IMPOSE SUCH A TAX,
WITH THE PRACTICAL EFFECT OF RELIEVING THE REAL BENEFICIARIES OF THE
PRIVILEGE FROM ALL TAXATION BY VIRTUE OF THEIR SUCCESS IN SHUNTING ITS
BURDEN CONTRACTUALLY TO THE NOMINAL OPERATOR N17.  AND THE SUGGESTION
THAT THE TAX UNDER THE ORDINANCE IS PROHIBITIVE CAN CARRY NO WEIGHT IN
VIEW OF THE FACT THAT SUBSTANTIALLY EQUAL PERSONAL PROPERTY TAXES WERE
PAID PRIOR TO 1939.  FN18 

APPELLANTS' OTHER ARGUMENTS MAY BE GIVEN SHORTER DISPOSITION.  THE
CONTENTION THAT THOMPSON'S CONVICTION IS "UNLAWFUL" IS ANSWERED BY THE
DECISION OF THE NEW JERSEY COURT OF ERRORS AND APPEALS WHICH HELD THAT
THE MUNICIPALITY POSSESSES THE POWER WHICH IT EXERCISED TO CONVICT
PERSONS WORKING IN UNLICENSED WAREHOUSING PREMISES AS WELL AS TO
PROHIBIT CORPORATIONS AND OTHERS FROM CARRYING ON THE BUSINESS OF
WAREHOUSING WITHOUT OBTAINING A LICENSE.  THOMPSON WAS CONVICTED NOT
FOR HIS EMPLOYER'S ACT BUT FOR HIS OWN.    IT IS SUGGESTED ALSO THAT
THE ORDINANCE GIVES TO THE MUNICIPALITY AN UNCONTROLLED DISCRETION TO
REVOKE THE LICENSE AND IS THEREFORE INVALID FOR UNCERTAINTY, SINCE IT
PERMITS THE TOWNSHIP COMMITTEE TO "REVOKE ANY SUCH LICENSE FOR
SUFFICIENT CAUSE AFTER NOTICE AND HEARING."  APPELLANTS HAVE MADE NO
ATTEMPT TO SECURE A LICENSE AND THEREFORE ARE NOT IN POSITION TO ATTACK
THE REVOCATION PROVISIONS OF THE ORDINANCE.  CF. BOURJOIS, INC. V.
CHAPMAN, 301 U.S. 183, 188, AND AUTHORITIES CITED.    FINALLY THE
ORDINANCE IS SAID TO BE INVALID BECAUSE OF THE PROVISION FOR CUMULATIVE
PENALTIES.  FN19  THE PENAL PROVISIONS HOWEVER HAVE NOT BEEN IMPOSED
CUMULATIVELY IN THIS CASE.  MOREOVER THE NEW JERSEY COURT HAS HELD THEM
SEPARABLE,  FN20  IF ILLEGAL.  IN SUCH CIRCUMSTANCES, THE OBJECTION
THAT THE MERE UNAPPLIED PROVISION FOR CUMULATION VIOLATES THE
FOURTEENTH AMENDMENT IS WITHOUT SUBSTANCE.  LOUISVILLE & N.R. CO. V.
GARRETT, 231 U.S. 298, 311, AND AUTHORITIES CITED. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE MATERIAL TERMS OF THE ORDINANCE APPEAR AT NOTE 9 INFRA AND
TEXT. 

FN2  SEE TEXT PART I INFRA.  A PRIOR SUIT IN A FEDERAL DISTRICT COURT
TO ENJOIN ENFORCEMENT WAS DISMISSED BECAUSE OF THE EXISTENCE OF A
"PLAIN, SPEEDY, AND EFFICIENT REMEDY" IN THE STATE COURTS.  INDEPENDENT
WAREHOUSES V. SADDLE RIVER TOWNSHIP, 52 F.SUPP.  96; 28 U.S.C. SEC.
41(1). 

FN3  THOSE OBJECTIONS ARE DISCUSSED IN PART III OF THIS OPINION. 

FN4  "A NON-DISCRIMINATORY TAX UPON THE BUSINESS OF STORING" GOODS
WHICH ARE NOT YET IN INTERSTATE COMMERCE IS NOT FORBIDDEN.  FEDERAL
COMPRESS CO. V. MCLEAN, 291 U.S. 17, 21. 

FN5  SEE NOTE 4. 

FN6  IN 1921 THE NEW JERSEY SUPREME COURT SUSTAINED THE IMPOSITION OF
THESE TAXES AGAINST ATTACK ON VARIOUS GROUNDS.  PENNSYLVANIA COAL CO.
V. SADDLE RIVER, 96 N.J.L. 40. 

FN7  COALBERG IS LOCATED CONVENIENTLY TO TIDEWATER PORTS, AS WELL AS
RAIL FACILITIES FOR DISTRIBUTION IN NORTHERN NEW JERSEY AND ELSEWHERE. 
THE DISTRIBUTORS USING COALBERG'S FACILITIES FORWARD THEIR COAL NOT
ONLY TO THE NEAR-BY METROPOLITAN AREA OF NEW YORK CITY AND NORTHERN NEW
JERSEY, BUT ALSO TO THE NEW ENGLAND STATES. 

FN8  THE TARIFF PROVIDES:  "THE PERIOD OF TIME ALLOWED FOR THE
STORAGE PRIVILEGE AND PROTECTION OF THE THROUGH RATE FROM POINT OF
ORIGIN TO ULTIMATE DESTINATION SHALL BE TWO (2) YEARS FROM DATE OF
DELIVERY AT STORAGE POINT, AS SHOWN ON THE INBOUND FREIGHT (EXPENSE)
BILL.  THE ERIE RAILROAD RESERVES THE RIGHT TO REQUIRE OWNERS TO REMOVE
THEIR COAL AT THE EXPIRATION OF THE TWO YEARS PERIOD.  ANY COAL WHICH
IS NOT RESHIPPED WITHIN TWO (2) YEARS WILL LOSE THE PRIVILEGE OF BEING
RESHIPPED AT THE THROUGH RATES FROM POINT OF ORIGIN TO DESTINATIONS
BEYOND THE STORAGE YARD  ... " 

FN9  "ANY PERSON, FIRM OR CORPORATION WHO SHALL VIOLATE ANY TERM OR
PROVISION OF THIS ORDINANCE SHALL UPON CONVICTION THEREOF BE SUBJECT TO
IMPRISONMENT IN THE COUNTY JAIL OR IN ANY PLACE PROVIDED BY THE
TOWNSHIP OF SADDLE RIVER FOR THE DETENTION OF PRISONERS, FOR A TERM NOT
EXCEEDING NINETY (90) DAYS OR TO A FINE NOT EXCEEDING TWO HUNDRED
DOLLARS ($200.00), OR BOTH.  ANY PERSON SO CONVICTED MAY, IN THE
DISCRETION OF THE MAGISTRATE BY WHOM HE WAS CONVICTED, IN DEFAULT OF
THE PAYMENT OF ANY FINE BE IMPRISONED IN THE COUNTY JAIL OR PLACE OF
DETENTION PROVIDED BY THE TOWNSHIP OF SADDLE RIVER, FOR ANY TERM NOT
EXCEEDING NINETY (90) DAYS.  ...  EACH DAY THAT A VIOLATION OF ANY OF
THE TERMS OR PROVISIONS OF THIS ORDINANCE SHALL CONTINUE SHALL
CONSTITUTE A SEPARATE OFFENSE." 

FN10  THOMPSON WAS TO BE IMPRISONED FOR 90 DAYS IN THE EVENT OF
DEFAULT IN PAYMENT OF HIS FINE. 

FN11  IT IS TO BE NOTED HOWEVER THAT THE TWO-YEAR PERIOD ALLOWED BY
THE TARIFF FOR STORAGE, SEE NOTE 8, IS LONGER THAN IS NECESSARY TO
ALLOW FOR MEETING SEASONAL DEMAND. 

STORAGE-IN-TRANSIT PRIVILEGES ARE SUPPLIED, IT IS SAID, "AS A RESULT
OF TRAFFIC DEMANDS."  A WITNESS GAVE THE FOLLOWING ILLUSTRATIONS: 

"(A)  COAL IS A COMMODITY OF SEASONAL CONSUMPTION.  MOST OF IT IS
CONSUMED IN COLD WEATHER.  IF THE MINES COULD PRODUCE CURRENTLY
SUFFICIENT COAL TO MEET COLD WEATHER REQUIREMENTS, THE RAILROADS WOULD
BE SWAMPED WITH COAL TRAFFIC DURING THE FALL AND WINTER MONTHS WHEN
OTHER SEASONAL PRODUCTS ARE MOVING IN LARGE VOLUME AND WEATHER
CONDITIONS RETARD TRANSPORTATION OPERATIONS.  BY SPREADING COAL
SHIPMENTS FOR WINTER USE OVER THE MONTHS OF MOST FAVORABLE OPERATING
CONDITIONS, A MORE UNIFORM TRANSPORTATION REVENUE IS ASSURED. 

"(B)  COAL DEALERS AND CONSUMERS SHIP IT MORE UNIFORMLY THROUGHOUT
THE YEAR BY USING STORAGE-IN-TRANSIT PRIVILEGES UNDER RAILROAD TARIFFS,
AND USE NEGOTIABLE WAREHOUSE RECEIPTS TO FINANCE THEIR PURCHASES WHERE
NECESSARY. 

"(C)  THE MOVEMENT DURING WARM WEATHER OF THE BULK OF THE WINTER COAL
SUPPLY AVOIDS CAR STORAGE AND RELEASES CARS MORE RAPIDLY THAN IF THEY
ARRIVED FROZEN SOLID, AS THEY OFTEN DO IN WINTER, WHERE DELAYED BY BAD
WEATHER OR HAD TO WAIT UNLOADING AND USE AT THE PLACE OF CONSUMPTION. 

"(D)  EXPERIENCE HAS SHOWN MANY INSTANCES, LIKE THOSE OF RECENT
OCCURRENCE, WHEN A SUPPLY OF STORED COAL CLOSE TO THE MARKET AREAS HAS
BEEN NECESSARY TO PREVENT OR RELIEVE ACUTE SHORTAGES OF FUEL IN CASES
OF LABOR, WEATHER, OR OTHER INTERRUPTIONS IN PRODUCTION OR
TRANSPORTATION. 

"(E)  A UNIFORM MOVEMENT OF COAL DURING FAVORABLE OPERATING
CONDITIONS, AVOIDS THE CONGESTION, DELAY AND INCREASED EXPENSE WHICH
OTHERWISE ATTENDS RUSH AND EMERGENCY TRANSPORTATION IN WINTER WEATHER. 

"(F)  SUCH STORAGE-IN-TRANSIT FACILITATES A MORE UNIFORM AND STEADY
EMPLOYMENT, NOT ONLY OF THE MINERS BUT ALSO OF RAILROAD EMPLOYEES, AS
WELL AS A MORE UNIFORM AND STEADY RAILROAD REVENUE." 

FN12  SEE NOTE 8. 

FN13  SEE THE DISSENTING OPINION OF MR. JUSTICE BRANDEIS IN LIGGETT
CO. V. LEE, 288 U.S. AT 570 FF. 

FN14  THE TAX, HOWEVER, MAY BE SOMEWHAT LARGER THAN THE AGGREGATE OF
THE FORMER PERSONAL PROPERTY TAXES.  PERSONAL PROPERTY TAXES PAID PRIOR
TO 1939 AMOUNTED TO ABOUT $12,000 A YEAR.  ESTIMATES OF THIS TAX GIVEN
IN THE RECORD VARY FROM ABOUT THAT SUM TO AROUND $20,000 A YEAR.  THE
VARIATION CORRESPONDS TO DIFFERENT ESTIMATES OF THE AREA, IN TERMS OF
FOOTAGE, CONSTITUTING THE BASE FOR CALCULATION OF THE TAX. 

FN15  SEE NOTE 14.  CF. THE DISSENTING OPINION OF MR. JUSTICE
BRANDEIS IN LIGGETT CO. V. LEE, 288 U.S. AT 573, "THE FEDERAL
CONSTITUTION DOES NOT REQUIRE THAT TAXES  ...  BE PROPORTIONATE TO THE
DIFFERENCES IN BENEFITS RECEIVED BY THE TAXPAYERS  ...  OR THAT TAXES
BE PROPORTIONATE TO THE TAXPAYER'S ABILITY TO BEAR THE BURDEN." 

FN16  THE RECORD DISCLOSES THAT THE PRESENT AGREEMENTS BETWEEN
INDEPENDENT WAREHOUSES AND THE COAL COMPANY ARE FROM YEAR TO YEAR UNTIL
TERMINATED UPON NOTICE. 

FN17  CF. BROWNING V. WAYCROSS, 233 U.S. 16, 23; FEDERAL COMPRESS CO.
V. MCLEAN, 291 U.S. 17, 22:  "IT IS NOT WITHIN THE POWER OF THE
PARTIES, BY THE DESCRIPTIVE TERMS OF THEIR CONTRACT, TO CONVERT A LOCAL
BUSINESS INTO AN INTERSTATE COMMERCE BUSINESS PROTECTED BY THE
INTERSTATE COMMERCE CLAUSE." 

FN18  SEE NOTE 14. 

FN19  THE ORDINANCE MAKES EACH DAY'S CONTINUANCE OF VIOLATION A
SEPARATE OFFENSE. 

FN20  THE NEW JERSEY COURT OF ERRORS AND APPEALS STATED:  "THE
ORDINANCE CONTAINS A PROVISION THAT IN CASE 'ANY SECTION OR PART'
THEREOF SHALL BE HELD ILLEGAL OR UNCONSTITUTIONAL, SUCH INVALIDITY
'SHALL NOT BE CONSTRUED AS IMPAIRING THE FORCE AND EFFECT OF THE
REMAINDER OF THE ORDINANCE.'  IF IT BE CONCEDED ARGUENDO THAT THE
CUMULATIVE PENALTY CLAUSE IS INVALID IN WHOLE OR IN PART, THE REMAINDER
OF THE PROVISION FOR SANCTIONS IS SEVERABLE AND WOULD STAND
UNAFFECTED.  134 N.J.L. AT 144. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE DISSENTING VIEWS LEAD ME TO ADD A FEW WORDS TO THE COURT'S
OPINION, IN WHICH I JOIN. 

NEARLY THIRTY-FIVE YEARS AGO MR. JUSTICE HOLMES OBSERVED THAT "ONE IN
MY PLACE SEES HOW OFTEN A LOCAL POLICY PREVAILS WITH THOSE WHO ARE NOT
TRAINED TO NATIONAL VIEWS AND HOW OFTEN ACTION IS TAKEN THAT EMBODIES
WHAT THE COMMERCE CLAUSE WAS MEANT TO END."  (HOLMES, SPEECHES, LAW AND
THE COURT, 98, 102).  HIS CONCERN HAS NOT LOST FORCE WITH TIME, AND IT
IS IMPORTANT TO BE DULY MINDFUL OF IT WHENEVER A STATE CLAIMS THE POWER
TO TAX IN A SITUATION LIKE THAT NOW BEFORE US. 

EQUALLY RELEVANT ARE OTHER OBSERVATIONS BY MR. JUSTICE HOLMES
REGARDING THIS PROBLEM.  "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.  REGULATION AND COMMERCE AMONG THE STATES BOTH ARE PRACTICAL
RATHER THAN TECHNICAL CONCEPTIONS, AND, NATURALLY, THEIR LIMITS MUST BE
FIXED BY PRACTICAL LINES."  GALVESTON, HARRISBURG, ETC. R. CO. V.
TEXAS, 210 U.S. 217, 225.  AND SO, THIS COURT HAS SUSTAINED A TAX UPON
THE MINING OF ORE ALTHOUGH SUBSTANTIALLY ALL THE ORE LEFT THE STATE AND
WAS PUT UPON CARS FOR THAT PURPOSE BY THE SAME ACT BY WHICH IT WAS
PRODUCED.  OLIVER IRON CO. V. LORD, 262 U.S. 172.  MR. JUSTICE HOLMES
JOINED IN THAT OPINION ALTHOUGH "THERE COULD NOT BE A CASE OF A STATE'S
PRODUCT MORE CERTAINLY DESTINED TO INTERSTATE COMMERCE."  HOLMES, J.,
DISSENTING IN PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553, 600, 601. 
AGAIN, THE COURT HAS HELD THAT A STATE MAY IMPOSE A NON-DISCRIMINATORY
TAX ON GOODS WHICH, ALTHOUGH CONNECTED "AS A GENERAL COURSE OF
BUSINESS" WITH "A FLOW OF INTERSTATE COMMERCE," "HAS COME TO REST AND
HAS ACQUIRED A SITUS WITHIN THE STATE" AT "A DEPOT  ...  FOR ANOTHER
INTERSTATE JOURNEY."  MINNESOTA V. BLASIUS, 290 U.S. 1, 8, 11.  FOR THE
PRACTICAL PURPOSES WHICH DETERMINE THE CONSTITUTIONAL ISSUE THERE CAN
BE NO DIFFERENCE BETWEEN TAXING SUCH GOODS AS PROPERTY AND TAXING THE
BUSINESS OF BEING A DEPOT FOR SUCH GOODS.  IN STRIKING THE
CONSTITUTIONAL BALANCE BETWEEN STATE AND NATIONAL POWERS, FIGURES OF
SPEECH ARE TREACHEROUS.  THE ORE WHICH MINNESOTA WAS ALLOWED TO TAX IN
THE LORD CASE, AND THE CATTLE WHICH MINNESOTA WAS ALLOWED TO TAX IN THE
BLASIUS CASE, WERE IN NO PRACTICAL SENSE LESS IN THE "FLOW OF COMMERCE"
THAN THE COAL THE STORAGE OF WHICH WAS THE BUSINESS SUBJECTED TO A NON
DISCRIMINATORY LICENSE TAX BY NEW JERSEY. 

NOR CAN IT MAKE A DIFFERENCE THAT THIS STORAGE BUSINESS WAS CONDUCTED
BY A CONCERN CONTROLLED BY THE COAL-CARRYING ROAD.  IF A WHOLLY
INDEPENDENT STORAGE CONCERN WOULD HAVE HAD TO PAY A LICENSE TAX, THE
CONTROLLING CONSTITUTIONAL PRINCIPLES REQUIRE NO DIFFERENT RESULT
BECAUSE THE STORAGE FACILITY IS A SUBSIDIARY OF A RAILROAD.  PRESUMABLY
THERE ARE GOOD BUSINESS REASONS FOR THE USE OF SUCH A SUBSIDIARY
CORPORATION.  COMPARE EDWARDS V. CHILE COPPER CO., 270 U.S. 452, 456. 
THOSE REASONS ARE EQUALLY VALID FOR THE STATE'S TAXING PURPOSES.  IT
CANNOT BE SAID THAT NEW JERSEY HAS GIVEN NO OPPORTUNITIES, HAS AFFORDED
NO PROTECTION, AND HAS CONFERRED NO BENEFITS UPON INDEPENDENT
WAREHOUSES, INC., MERELY BECAUSE IN AN ULTIMATE SENSE THERE IS A
FINANCIAL IDENTIFICATION BETWEEN INDEPENDENT WAREHOUSES AND THE ERIE
RAILROAD.  COMPARE WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 444.  IF
WHAT WAS HERE INVOLVED WERE MERELY AN OCCASIONAL AND TRANSIENT STORAGE
OF COAL MOVING FROM PENNSYLVANIA TO NEW YORK, NEW JERSEY COULD NOT LEVY
A PROPERTY TAX ON THE COAL NOR A LICENSE TAX FOR THE STORING OF IT.
THE CONTROLLING CONSIDERATION HERE IS THAT THERE WAS STORAGE OF THE
COAL PRECISELY LIKE THE HOLDING OF THE CATTLE IN THE BLASIUS CASE.  IN
BOTH CASES THERE WAS A SUFFICIENTLY DISTINCT AND PERMANENT BREAK IN THE
PROCESS OF TRANSPORTATION BETWEEN THE STATES SO AS TO GIVE RISE TO
INTERESTS IN THE STATE OF STORAGE TO JUSTIFY THE EXERTION OF ITS NON
DISCRIMINATORY TAXING POWER.  FOR ME THIS CASE IS CONTROLLED BY
SUSQUEHANNA COAL CO. V. SOUTH AMBOY, 228 U.S. 665.  HERE, AS IN THAT
CASE, THERE WAS SOMETHING MORE "THAN AN INCIDENTAL INTERRUPTION OF THE
CONTINUITY" OF THE COAL'S "JOURNEY THROUGH THE STATE."  THERE WAS "A
BUSINESS PURPOSE AND ADVANTAGE IN THE DELAY WHICH WAS AVAILED OF, AND
WHILE IT WAS AVAILED OF, THE PRODUCTS SECURED THE PROTECTION OF THE
STATE."  228 U.S. AT 668 AND 669.  THEREBY THE STATE'S POWER TO TAX
AROSE. 

THE FACT THAT FOR RAILROAD-RATE PURPOSES THIS STORAGE WAS TREATED AS
PART OF A TRANSIT PRIVILEGE DOES NOT AFFECT THE RELATION OF THE STORAGE
TO THE TAXING POWERS OF THE STATE.  ASSUMING THAT SUCH A STORAGE MAY
PROPERLY BE TREATED AS A STOP-OVER PRIVILEGE UNDER THE INTERSTATE
COMMERCE ACT, IT DOES NOT FOLLOW THAT THE BREAK IN THE PROCESS OF
INTERSTATE TRANSPORTATION IS NOT OF SUCH SIGNIFICANCE IN ITS RELATION
TO A STATE AS TO ALLOW THAT STATE TO TAX THE PROTECTION GIVEN TO THE
PROPERTY DURING THE BREAK AS WELL AS THE OPPORTUNITY AFFORDED IN
CONDUCTING THE BUSINESS FOR SUCH SEPARABLE AND ENDURING STORAGE IN THE
STATE. 

MR. JUSTICE JACKSON, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING. 

THE ERIE RAILROAD COMPANY IS A COMMON CARRIER ENGAGED IN INTERSTATE
COMMERCE.  BY A SPECIFIC TARIFF FILED WITH THE INTERSTATE COMMERCE
COMMISSION PURSUANT TO THE INTERSTATE COMMERCE ACT, IT AND SEVERAL
OTHER RAIL CARRIERS HAVE LONG PUBLISHED A JOINT AND PROPORTIONAL
THROUGH-TARIFF ON ANTHRACITE COAL FROM COAL MINING STATIONS IN
PENNSYLVANIA TO POINTS IN NEW YORK AND NEW JERSEY.  THE TARIFF PROVIDES
FOR STORAGE-IN-TRANSIT SERVICES AT COALBERG, NEW JERSEY, WITH
RESHIPMENT TO DESTINATION UNDER ORIGINAL AGREEMENTS.  INDEPENDENT
WAREHOUSES, INC., AS CONTRACT AGENT FOR THE ERIE, OPERATES THESE
STORAGE-IN-TRANSIT FACILITIES, HAS CUSTODY OF THE COAL IN STORAGE UNDER
ERIE TARIFFS AS A PUBLIC WAREHOUSEMAN, AND ISSUES WAREHOUSE RECEIPTS
FOR COAL RECEIVED UNDER RAILROAD WAYBILLS.  TITLE TO COALBERG IS IN THE
PENNSYLVANIA COAL CO., A WHOLLY-OWNED SUBSIDIARY OF ERIE, AND IT
RECEIVES FROM INDEPENDENT WAREHOUSES ONE DOLLAR PER YEAR FOR ITS
LEASE.  THE ERIE ULTIMATELY BEARS ALL LOSSES AND GETS ALL GAINS.  IT IS
APPARENT THAT COALBERG IS A FACILITY FOR STORAGE IN TRANSIT OF COAL
OPERATED AS PART OF THE ERIE'S INTERSTATE TRANSPORTATION SERVICE. 
THE FUNCTION OF THE STORAGE IN TRANSIT IS VITAL.  DURING THE SUMMER
SEASON, CONSUMPTION OF ANTHRACITE COAL IS LIGHT AND NEITHER DEALERS NOR
CONSUMERS IN THE CITY OF NEW YORK AND ELSEWHERE ARE ABLE TO STORE
ADEQUATE WINTER RESERVES.  AT CRITICAL TIMES THERE WOULD BE GRAVE
DANGER OF INADEQUATE FUEL SUPPLIES FROM INTERRUPTIONS OF TRANSPORTATION
OR OF MINING OPERATIONS IF STOCK PILES WERE NOT ACCUMULATED NEAR
CONSUMING CENTERS, SUCH AS NEW YORK, TO BE DRAWN UPON IN PERIODS OF
PEAK DEMAND.  THEREFORE, THE RAILROAD ACCEPTS COAL SHIPMENTS WHICH IT
MINGLES IN STOCK PILES AT COALBERG, NEAR NEW YORK, WITH THE PRIVILEGE
TO THE SHIPPER OF ORDERING THE SAME GRADE AND QUANTITY SENT ON TO
DESTINATION AS NEEDED.  WHEN ORDERS FOR RESHIPMENT COME, THEY ARE DRAWN
FROM STOCK PILES AND DELIVERED.  STORAGE-IN-TRANSIT IS A DEVICE TO
EQUALIZE THE DEMANDS ON COAL TRANSPORTATION FACILITIES AND TO PROVIDE A
RESERVE SUPPLY OF COAL FOR PERIODS WHEN CONSUMPTION EXCEEDS PRODUCTION,
TO ENABLE MOVEMENT AWAY FROM THE MINES DURING THE PERIOD WHEN
PRODUCTION EXCEEDS CONSUMPTION, AND TO FINANCE FUTURE PURCHASES BY
WAREHOUSE RECEIPTS ISSUED AGAINST COAL IN TRANSIT.  IT IS AN ESSENTIAL
PART OF DEPENDABLE AND LOW-COST TRANSPORTATION OF ANTHRACITE COAL FROM
THE MINES TO THE GREAT METROPOLITAN CONSUMING AREA. 

FOR THE PRIVILEGE OF OPERATING THIS STORAGE-IN-TRANSIT FACILITY AT
COALBERG IN NEW JERSEY, THE MUNICIPALITY DEMANDS AN ANNUAL LICENSE FEE,
IN ADVANCE, WHICH IT IS ALLEGED WOULD AMOUNT TO $20,475.  THIS IS
MERELY FOR THE PRIVILEGE OF DOING THE BUSINESS.  THE PROPERTY USED IN
THE OPERATION IS ALSO SUBJECT TO THE USUAL PROPERTY TAX ON A VALUATION
OF $133,875, WHICH IS NOT IN QUESTION. 

THE ISSUE IS WHETHER THIS LOCAL PRIVILEGE TAX UNCONSTITUTIONALLY
BURDENS INTERSTATE COMMERCE.  THE BURDEN AND ITS SUBSTANTIALITY ARE
UNDENIABLE, BUT THE COURT CONCLUDES THAT THESE LOCAL ASSESSMENTS UPON
INTERSTATE TRAFFIC ARE WITHIN THE POWER OF THE STATE AND, OF COURSE,
THE AMOUNT, BE IT $20,000 PER YEAR OR $20,000,000 PER YEAR, IS WHOLLY
FOR THE LOCAL AUTHORITIES TO DETERMINE IF THEIR POWER TO TAX IS
UPHELD. 

I CANNOT AGREE THAT THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION
HAS LEFT INTERSTATE TRAFFIC VULNERABLE TO SUCH LOCAL PERMISSIONS AND
BURDENS.  BECAUSE THE IMMEDIATE IMPACT OF THE TAX IS ON A RAILROAD, WE
SHOULD NOT DELUDE OURSELVES AS TO ITS REAL EFFECT.  IT IS A TAX ON
TRAFFIC - ON THE MOVEMENT OF GOODS - AND ITS WEIGHT IS SHIFTED FROM THE
CARRIER TO THE CONSUMER.  THERE IS, OF COURSE, A "LOCAL INCIDENT," A
STOPPAGE IN TRANSIT, A RELOADING.  "LOCAL INCIDENTS" OF SOME SORT CAN
BE IDENTIFIED IN ALL INTERSTATE TRANSPORTATION.  BUT IN THIS CASE LOCAL
SALES OR DELIVERIES ARE INSUBSTANTIAL IN AMOUNT.  THE WHOLE OPERATION
IS INCIDENTAL TO INTERSTATE TRANSPORTATION AND NOT TO ANY LOCAL
BUSINESS.  IT IS INTEGRATED IN OPERATION, OWNERSHIP AND MANAGEMENT WITH
TRANSPORTATION.  IT IS UNDER THE FEDERAL COMMERCE POWER AND UNDER
INTERSTATE COMMERCE COMMISSION REGULATION.  THE STOPPAGE MAY BE LONGER
THAN MANY OTHER STOPPAGES IN TRANSIT INCIDENT TO RAILROADING.  BUT THE
STORAGE OF PERPETUALLY RENEWED AND CONTINUOUSLY DRAWN-UPON STOCK PILES
IS NO LONGER THAN NECESSARY TO ADAPT TRANSPORTATION FACILITIES TO THE
NEEDS OF AN ECONOMY, ONE END OF WHICH MUST ENGAGE IN CONTINUOUS
PRODUCTION AND THE OTHER IN ONLY SEASONAL CONSUMPTION.  THAT A SINGLE
MUNICIPALITY OR STATE CAN FASTEN LOCAL TAX BURDENS UPON SUCH AN
INCIDENT MAKES INTERSTATE COMMERCE VULNERABLE TO THE VERY BARRIERS AND
OBSTRUCTIONS THE COMMERCE CLAUSE OF THE CONSTITUTION WAS DESIGNED TO
END. 

THE UNEDIFYING STORY OF COLONIAL RIVALRY IN PREYING UPON COMMERCE,
WHICH MORE THAN ANY ONE THING MADE OUR FEDERAL CONSTITUTION A
NECESSITY, IS TOO OFTEN TOLD BY HISTORIANS TO JUSTIFY REPETITION.  THIS
TAX IS REMINISCENT, HOWEVER, OF SOME PHASES OF THAT COMMERCIAL
WARFARE.  IN 1787 NEW YORK WAS BEING SUPPLIED WITH FIREWOOD FROM
CONNECTICUT AND MUCH FARM PRODUCE FROM NEW JERSEY.  IT SEIZED UPON
"LOCAL INCIDENTS" TO LAY A TAX.  EVERY SLOOP WHICH CAME DOWN THROUGH
HELL GATE, EVERY CART OF FIREWOOD ENTERING THE CITY, AND EVERY MARKET
BOAT ROWED ACROSS THE HUDSON RIVER HAD TO PAY HEAVY ENTRANCE DUTIES. 
THEN CAME RETALIATORY MEASURES.  SEE FISKE, THE CRITICAL PERIOD OF
AMERICAN HISTORY, CHAP. IV.  THESE CHRONIC QUARRELS WERE DESTROYING THE
TRADE OF ALL THE RIVALS, AND IT WAS SOUGHT BY THE CONSTITUTION TO FREE
TRADE FROM LOCAL BURDENS AND CONTROLS. 

THIS NEW JERSEY TAX ON TRANSPORTATION OF NEW YORK'S COAL SUPPLY IS
MORE DANGEROUS IN THE END THAN THE OLD NEW YORK TAX ON ITS OWN
FIREWOOD.  IN THAT CASE THE CONSUMERS WHO ULTIMATELY WOULD PAY THE TAX
ALSO CONTROLLED THE GOVERNMENT WHICH SHORTSIGHTEDLY LAID THE TAX.  IT
WAS A TARIFF, AND THE TARIFF-RIDDEN PEOPLE COULD REMOVE IT. 

BUT HERE THE ULTIMATE BURDEN OF THE TAX FALLS ON CONSUMERS OF NEW
YORK AND ELSEWHERE WHO HAVE NO REPRESENTATION IN THE GOVERNMENT WHICH
LAYS THE TAX AND FIXES ITS AMOUNT.  THE AUTHORITIES WHO FIX THE TAX
WILL NEVER HAVE TO ANSWER TO THOSE WHO PAY IT.  THAT IS THE EVIL OF
"TAXATION WITHOUT REPRESENTATION."  HERE IS A TAX THAT FALLS
IMMEDIATELY UPON A SINGLE TAXPAYER, FOR IT DOES NOT APPEAR THAT ANY
OTHER IS SIMILARLY AFFECTED.  IT IS A TAX THAT FALLS ULTIMATELY ON NON
RESIDENTS OF THE TAXING AUTHORITY.  IF IT IS VALID, I KNOW OF NO REASON
WHY THE COMMUNITY SHOULD BEAR ANY OF ITS OWN TAX BURDENS.  THIS IS THE
GREAT VICE OF THESE LOCAL BURDENS ON INTERSTATE MOVEMENT OF GOODS.  IF
THIS IS NOT THE SORT OF BURDEN AND BARRIER TO A NATION'S FREE TRADE
THAT OUR COMMERCE CLAUSE WAS DESIGNED TO END, I SHOULD THINK ONE WOULD
BE HARD PUT TO FIND AN EXAMPLE.  THIS DECISION REPRESENTS A TREND THAT
SEEMS TO ME QUITE OUT OF THE SPIRIT OF OUR HISTORY AND QUITE AS
DETRIMENTAL TO OUR COMMERCIAL WELFARE AND UNITY.  SEE MY CONCURRING
OPINION, DUCKWORTH V. ARKANSAS, 314 U.S. 390, 397.  I AM NOT UNAWARE OF
THE NEEDS OF THIS LOCALITY, AS OF ALL OTHERS, FOR REVENUE.  BUT IT
SEEMS TO ME THAT THE ACTIVITIES AT COALBERG ARE AS FULLY IN THE CURRENT
OF INTERSTATE COMMERCE AS THOSE WE HELD IMMUNE FROM STATE TAXATION IN
FREEMAN V. HEWIT, 329 U.S. 249, AND JOSEPH V. CARTER & WEEKES
STEVEDORING CO., 330 U.S. 422.  THE STORAGE-IN-TRANSIT SERVICE IS AS
ESSENTIAL TO MAINTAINING AND AS MUCH A PART OF THE FLOW OF COAL AS
LOADING AND UNLOADING OF GOODS SHIPPED IN INTERSTATE COMMERCE IS OF
THAT COMMERCE.  THE CONSTITUTION LAID RESTRAINTS UPON EACH LOCALITY
LEST THEIR LOCAL ADVANTAGES BE PURSUED AT THE COST OF THE COMMERCE ON
WHICH THE PROSPERITY OF ALL DEPENDS.  I WOULD REVERSE THE JUDGMENT. 
..END :














U.S. V. OGILVIE HARDWARE CO., 330 U.S. 709 


NO. 430.  ARGUED MARCH 5, 1947.  - DECIDED APRIL 7, 1947.  - 155 F.2D
577, AFFIRMED. 


A CORPORATION, ORGANIZED WITH A PAID-IN CAPITAL OF $100,000, INCREASED
ITS CAPITALIZATION IN 1924 TO $200,000 BY DECLARATION OF A $100,000
STOCK DIVIDEND OUT OF PAST EARNINGS.  THEREAFTER, OPERATING LOSSES
CREATED A DEFICIT IN TOTAL CAPITALIZATION, THE DEFICIT BEING ABOUT
$71,000 IN 1937 BUT BEING REDUCED TO ABOUT $61,000 BY 1938.  WITH THIS
DEFICIT, THE CORPORATION WAS FORBIDDEN BY STATE LAW TO PAY ANY
DIVIDENDS AND IT REFRAINED FROM DOING SO.  THE COMMISSIONER OF INTERNAL
REVENUE ASSESSED, AND THE COMPANY PAID, UNDISTRIBUTED PROFITS TAXES
UNDER SEC. 14 OF THE REVENUE ACT OF 1936 FOR ITS FISCAL YEARS ENDING IN
1937 AND 1938.  THE CORPORATION SUED FOR A REFUND OF THESE TAXES UNDER
SEC. 26(C)(3) OF THE REVENUE ACT OF 1936, AS ADDED BY SEC. 501(A)(3) OF
THE REVENUE ACT OF 1942, CLAIMING TO BE A CORPORATION HAVING "A DEFICIT
IN ACCUMULATED EARNINGS AND PROFITS" WITHIN THE MEANING OF THAT
719. 

(A)  THE 1942 AMENDMENT WAS DESIGNED TO GRANT CORPORATIONS A REFUND
ON ACCOUNT OF PAYMENTS OF UNDISTRIBUTED PROFITS TAXES FOR TAX YEARS IN
WHICH THEY HAD AN ACCUMULATED DEFICIT, AND WHERE, FOR THAT REASON,
STATE LAW, FEDERAL LAW, OR PUBLIC REGULATORY ORDERS OF EITHER
PROHIBITED DISTRIBUTION OF DIVIDENDS.  P. 713. 

(B)  IT WAS AN EXTRAORDINARY RELIEF MEASURE, AND ITS LANGUAGE, THE
CIRCUMSTANCES WHICH PROMPTED ITS PASSAGE, AND THE VERY MECHANICS OF THE
AMENDMENT ITSELF REQUIRE THAT DETERMINATION OF RIGHTS TO REFUND UNDER
IT BE BASED ON CONSIDERATION OF SOMETHING OTHER THAN THE ESTABLISHED
MEANING UNDER FEDERAL TAX LAW OF THE WORD "DEFICIT" AND THE PHRASE
"ACCUMULATED EARNINGS AND PROFITS."  PP. 714-719. 

(C) CONGRESS AT LEAST INTENDED TO REFUND TAXES IMPOSED ON
CORPORATIONS WHICH HAD FAILED TO DISTRIBUTE DIVIDENDS WHEN
DISTRIBUTION, IN VIOLATION OF STATE LAW, WOULD HAVE IMPAIRED LONG
EXISTING STATE-APPROVED CORPORATE CAPITALIZATIONS.  P. 719. 

UNITED STATES V. OGILVIE HARDWARE CO., INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

A DISTRICT COURT AWARDED A JUDGMENT UNDER SEC. 501(A)(3) OF THE
REVENUE ACT OF 1942, 56 STAT. 798, TO A CORPORATION FOR REFUND OF
UNDISTRIBUTED PROFITS TAXES PAID WHILE THE CORPORATION'S CAPITAL WAS
IMPAIRED, ALTHOUGH HALF THE CAPITAL HAD RESULTED FROM A STOCK DIVIDEND
PAID OUT OF PAST EARNINGS.  62 F.SUPP.  338.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  155 F.2D 577.  THIS COURT GRANTED CERTIORARI.  329
U.S. 699.  AFFIRMED, P. 719. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR TAX REFUND WHICH THE DISTRICT COURT ALLOWED.  62
F.SUPP.  338.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  155 F.2D 577. 
WE GRANTED CERTIORARI BECAUSE OF AN APPARENT CONFLICT WITH CENTURY
ELECTRIC CO. V. COMMISSIONER, 144 F.2D 983. 

THE RESPONDENT, OGILVIE HARDWARE CO., INC., WAS INCORPORATED IN
LOUISIANA IN 1907 WITH A PAID-IN CAPITAL OF $100,000.  IN 1924 IT
INCREASED ITS CAPITALIZATION TO $200,000 BY DECLARATION OF A $100,000
STOCK DIVIDEND OUT OF PAST EARNINGS.  DEPRESSED BUSINESS CONDITIONS
DURING THE 1930'S BROUGHT HEAVY OPERATING LOSSES SO THAT BY 1937 THE
COMPANY'S ASSETS WERE ABOUT $71,000 LESS THAN THE $200,000
CAPITALIZATION.  THE COMPANY BOOKS ACCORDINGLY SHOWED A DEFICIT IN THIS
AMOUNT.  BY 1938 THIS DEFICIT WAS REDUCED TO ABOUT $61,000.  IN THIS
FINANCIAL POSTURE THE CORPORATION COULD NOT DECLARE DIVIDENDS WITHOUT
IMPAIRING ITS THEN CAPITAL STRUCTURE (WHICH INCLUDED CAPITALIZATION OF
THE $100,000 STOCK DIVIDEND) AND LOUISIANA LAW PROHIBITED PAYMENT OF A
DIVIDEND UNDER SUCH CIRCUMSTANCES.  FN1  SECTION 14 OF THE GOVERNING
REVENUE ACT OF 1936 IMPOSED A SURTAX ON CERTAIN CORPORATE NET INCOME
EARNED DURING THE TAX YEAR BUT NOT DISTRIBUTED AS DIVIDENDS.  FN2  IT
PROVIDED NO EXEMPTION FROM THAT SURTAX BECAUSE A CORPORATION HAD AN
ACCUMULATED DEFICIT AT THE BEGINNING OF THE TAX YEAR, OR BECAUSE STATE
LAW PROHIBITED PAYMENTS OF DIVIDENDS. 

ACTING UNDER THIS 1936 LAW, THE COMMISSIONER, ON EXAMINATION OF
RESPONDENT'S 1937 AND 1938 TAX RETURNS, DETERMINED THAT RESPONDENT WAS
SUBJECT TO THE UNDISTRIBUTED PROFITS TAX, DESPITE THE DEFICIT AND THE
STATE PROHIBITION AGAINST PAYMENT OF DIVIDENDS.  THE COMMISSIONER'S
INTERPRETATION AND APPLICATION OF THE 1936 ACT WAS IN ACCORD WITH OUR
HOLDING IN HELVERING V. NORTHWEST STEEL ROLLING MILLS, 311 U.S. 46, AND
CRANE-JOHNSON CO. V. HELVERING, 311 U.S. 54.  THE TAXPAYERS IN THOSE
CASES CLAIMED EXEMPTION FROM THE SURTAX ON THE GROUND THAT THEY COULD
NOT DISTRIBUTE DIVIDENDS "WITHOUT VIOLATING A PROVISION OF A WRITTEN
CONTRACT EXECUTED BY THE CORPORATION PRIOR TO MAY 1, 1936, WHICH
PROVISION EXPRESSLY DEALS WITH THE PAYMENT OF DIVIDENDS."  SECTION
26(C)(1) OF THE 1936 ACT RELIEVED CORPORATIONS FROM THE TAX IF SUCH
CONTRACTS EXISTED.  49 STAT. 1648, 1664.  THE QUESTION WE HAD TO DECIDE
IN THOSE CASES WAS WHETHER A STATE CONSTITUTION, CORPORATE CHARTER, OR
STATE STATUTE, WHICH PROHIBITED PAYMENT OF DIVIDENDS, WAS A "WRITTEN
CONTRACT" WITHIN THE MEANING OF THE SEC. 26(C)(1) EXEMPTION PROVISION. 
WE HELD THAT WE COULD NOT SO EXPAND THE PROVISION'S LANGUAGE, RELYING
IN PART UPON PREVIOUS STATEMENTS OF THIS COURT "THAT PROVISIONS
GRANTING SPECIAL TAX EXEMPTIONS ARE TO BE STRICTLY CONSTRUED." 
HELVERING V. NORTHWEST STEEL ROLLING MILLS, SUPRA, 49.  SINCE THE
RESPONDENT HERE HAD NO "WRITTEN CONTRACT" AGAINST PAYMENT OF DIVIDENDS,
IT HAD NO EXEMPTION FROM THE SURTAX IMPOSED BY THE ORIGINAL 1936 ACT. 

BUT THIS SUIT IS NOT BROUGHT TO DETERMINE THE COMPANY'S TAX LIABILITY
UNDER THE 1936 ACT AS IT STOOD IN THE TAXABLE YEARS 1937 AND 1938.  IT
IS AN ACTION FOR A REFUND UNDER A 1942 RELIEF AMENDMENT TO THE 1936 ACT
SPECIFICALLY DESIGNED TO AUTHORIZE CORPORATIONS TO OBTAIN REPAYMENTS OF
TAXES THEY HAD BEEN FORCED TO PAY UNDER THE 1936 ACT AS WE HAD
INTERPRETED IT.  THAT AMENDMENT, AS ENACTED, PROVIDED FOR COMPLETE OR
PARTIAL RETROACTIVE IMMUNITY FROM THE 1936 UNDISTRIBUTED PROFITS TAX
UNDER THE FOLLOWING CIRCUMSTANCES: 

"DEFICIT CORPORATIONS.  - IN THE CASE OF A CORPORATION HAVING A
DEFICIT IN ACCUMULATED EARNINGS AND PROFITS AS OF THE CLOSE OF THE
PRECEDING TAXABLE YEAR, THE AMOUNT OF SUCH DEFICIT, IF THE CORPORATION
IS PROHIBITED BY A PROVISION OF A LAW OR OF AN ORDER OF A PUBLIC
REGULATORY BODY FROM PAYING DIVIDENDS DURING THE EXISTENCE OF A DEFICIT
IN ACCUMULATED EARNINGS AND PROFITS, AND IF SUCH PROVISION WAS IN
EFFECT PRIOR TO MAY 1, 1936."  SEC. 501(A)(3), REVENUE ACT OF 1942, 56
STAT. 798, 954. 

THIS AMENDMENT WAS DESIGNED TO GRANT CORPORATIONS A REFUND ON ACCOUNT
OF PAYMENTS OF UNDISTRIBUTED PROFITS TAXES FOR TAX YEARS IN WHICH THEY
HAD AN ACCUMULATED DIFICIT, AND WHERE, FOR THAT REASON, STATE LAW,
FEDERAL LAW, OR PUBLIC REGULATORY ORDERS OF EITHER PROHIBITED
DISTRIBUTION OF DIVIDENDS.  IT THEREFORE AUTHORIZED REFUNDS TO THE VERY
TAXPAYERS WHO HAD BEEN LAWFULLY REQUIRED TO PAY TAXES BY THE 1936 ACT
AS WE HAD INTERPRETED IT IN THE TWO CASES CITED ABOVE.  FURTHERMORE, IN
ORDER TO MAKE SURE THAT TAXPAYERS WHO HAD PAID UNDER OUR INTERPRETATION
MIGHT RECOVER REFUNDS, SEC. 501(C) OF THE SAME AMENDMENT SPECIFICALLY
AUTHORIZED CLAIMS FOR REPAYMENT TO BE FILED WITHIN ONE YEAR AFTER ITS
PASSAGE, WITHOUT REGARD TO ANY STATUTE OF LIMITATIONS OR OTHER
DESIGNATED STATUTORY BARS.  56 STAT. 798, 955. 

THE GOVERNMENT'S CONTENTION IS THAT WE SHOULD CONSTRUE THE WORD
"DEFICIT" AND THE PHRASE "ACCUMULATED EARNINGS AND PROFITS" ACCORDING
TO THEIR ESTABLISHED MEANING UNDER FEDERAL TAX LAW; THAT SO CONSTRUED
THE $100,000 ALLOTTED FOR STOCK DIVIDENDS REMAINED A PART OF EARNINGS
AND PROFITS FOR TAX PURPOSES; THEREFORE, THERE WAS NO DEFICIT IN THE
FEDERAL TAX SENSE, AND CONSEQUENTLY THE TAX PAYMENTS SHOULD NOT HAVE
BEEN REFUNDED HERE DESPITE THE STATE PROHIBITION AGAINST DISTRIBUTION. 
WE MAY ASSUME THAT THE GOVERNMENT IS CORRECT IN CONTENDING THAT IF
CONGRESS INTENDED IN THE 1942 AMENDMENT TO USE THE WORDS "DEFICIT" AND
"EARNINGS AND PROFITS" IN THIS FEDERAL TAX SENSE, THE STOCK DIVIDEND
DID NOT REDUCE "EARNINGS," THERE WAS NO "DEFICIT," AND THE REFUND
SHOULD BE DENIED.  SEE SEC. 115, REVENUE ACT OF 1936, 49 STAT. 1648,
1687-1689; COMMISSIONER V. BEDFORD, 325 U.S. 283, 292.  THIS
CONSTRUCTION WOULD GREATLY LIMIT THE SCOPE OF THE RELIEF GRANTED BY THE
1942 AMENDMENT.  TO DETERMINE WHETHER CONGRESS INTENDED SO TO LIMIT THE
RELIEF IT GRANTED, WE MUST LOOK TO THE WHOLE 1942 AMENDMENT IN ITS
RELATIONSHIP TO THE 1936 ACT AND THE LEGISLATIVE AND JUDICIAL HISTORY
INTERVENING BETWEEN THE TWO. 

THE 1936 UNDISTRIBUTED PROFITS TAX LAW WAS A NOVELTY IN THE FIELD OF
FEDERAL TAXATION.  ITS CHIEF NOVEL FEATURE WAS THAT IT WAS DESIGNED TO
COMPEL CORPORATIONS TO DISTRIBUTE CURRENT EARNINGS TO SHAREHOLDERS BY
IMPOSING A SURTAX ON CORPORATIONS WHICH FAILED TO MAKE SUCH
DISTRIBUTIONS.  IT HAD DETAILED PROVISIONS FOR DEFINING THE NET INCOME
WHICH WOULD BE REACHED BY THIS TAX.  ITS APPLICATION, THEREFORE, RAISED
NEW AND SOMETIMES WHOLLY UNEXPECTED PROBLEMS.  WIDESPREAD OPPOSITION
DEVELOPED TO THE TAX.  SINCE 1938, ONLY A TOKEN OF IT HAS SURVIVED. 
SEE REVENUE ACT OF 1938, 52 STAT. 447.  BUT EVEN AFTER THE 1936
UNDISTRIBUTED PROFITS TAX WAS NO LONGER IN EFFECT, COMPLAINTS ABOUT ITS
PRIOR APPLICATION FROM CORPORATIONS WHICH HAD BEEN REQUIRED TO PAY AN
UNDISTRIBUTED PROFITS TAX CONTINUED TO REACH AND TO CONCERN CONGRESS. 
REPRESENTATIVES OF THESE CORPORATIONS APPEARED BEFORE THE HOUSE AND
SENATE COMMITTEES IN 1942, AND CONGRESS RESPONDED TO THEIR COMPLAINTS
BY ENACTING THE SEVERAL PROVISIONS OF SEC. 501 - THE RETROACTIVE RELIEF
LEGISLATION NOW UNDER CONSIDERATION. 

ONE SUBJECT OF COMPLAINT WAS THAT UNDER THE INCOME TAX DEFINITIONS
ONLY A FRACTION OF CAPITAL LOSSES WAS DEDUCTIBLE FROM TAXABLE NET
INCOME.  CORPORATIONS WHICH HAD SUFFERED LARGE CAPITAL LOSSES IN A
GIVEN YEAR WERE REQUIRED TO PAY UNDISTRIBUTED PROFITS TAXES IN THAT
YEAR AS THOUGH THEY HAD MADE A PROFIT.  THE 1942 AMENDMENT, AS REPORTED
BY THE HOUSE COMMITTEE, MET THIS COMPLAINT BY RECOMMENDING THAT REFUNDS
BE AUTHORIZED FOR CORPORATIONS WHO HAD PAID UNDER THIS 1936 DEFINITION
OF NET INCOME.  FN3  THIS AUTHORIZATION, SUBSEQUENTLY APPROVED BY THE
SENATE COMMITTEE, FN4  CLEARLY SHOWS THAT CONGRESS INTENDED TO PROVIDE
FOR THIS PHASE OF THE REFUND WITHOUT REGARD TO TAX DEFINITIONS, AND DID
NOT INTEND ITS AUTHORIZED REFUND TO BE RESTRICTED BY THE APPLICATION OF
ESTABLISHED TAX TERMINOLOGY. 

WHEN THE BILL REACHED THE SENATE COMMITTEE, INSISTENT COMPLAINTS
RELATED TO THE FACT THAT CORPORATIONS WITH DEFICITS IN ACCUMULATED
EARNINGS AND PROFITS HAD BEEN COMPELLED TO PAY TAXES FOR NON
DISTRIBUTION OF DIVIDENDS ALTHOUGH STATE OR FEDERAL LAW PROHIBITED
DIVIDEND PAYMENTS.  A DEFICIT RAILROAD CORPORATION HAD BEEN TAXED OVER
ITS OBJECTION THAT PAYMENT OF DIVIDENDS WOULD HAVE RENDERED ITS
OFFICERS SUBJECT TO PUNISHMENT FOR A MISDEMEANOR UNDER FEDERAL LAW AND
A MONEY PENALTY UNDER STATE LAW.  THE BOARD OF TAX APPEALS HAD
OVERRULED OBJECTIONS ON THESE GROUNDS, RELYING ON OUR DECISIONS IN THE
CRANE-JOHNSON AND NORTHWEST STEEL CASES, SUPRA.  PARIS & MT. PLEASANT
R. CO. V. COMM'R, 47 B.T.A. 439.  FN5  THE COUNSEL WHO HAD REPRESENTED
CRANE-JOHNSON BEFORE THIS COURT ALSO APPEARED ON THEIR BEHALF BEFORE
THE SENATE COMMITTEE AND MADE A PLEA FOR RELIEF FOR DEFICIT
CORPORATIONS WHICH HAD BEEN COMPELLED TO PAY THE UNDISTRIBUTED PROFITS
TAX.  FN6  HE URGED THAT SUCH CORPORATIONS HAD BEEN "CAUGHT IN A TRAP,"
AND THAT THEY WERE JUSTLY ENTITLED TO HAVE A REFUND FOR THAT REASON. 
IT WAS APPARENTLY IN RESPONSE TO THE FOREGOING COMPLAINTS THAT THE
RELIEF PROVISION BEFORE US, NOT PART OF THE HOUSE BILL AS IT CAME TO
THE SENATE,  FN7  WAS INTRODUCED BY THE SENATE COMMITTEE.  FN8  WE
THINK CONGRESS WAS MOVED TO RELIEVE THOSE CORPORATIONS WHICH IT
CONSIDERED TO BE "CAUGHT IN A TRAP" WHEREBY THEY WERE TAXED BY THE
FEDERAL GOVERNMENT IF THEY DID NOT PAY DIVIDENDS AND SUBJECT TO
PROSECUTION AND PENALTIES BY THE FEDERAL GOVERNMENT OR THE STATES IF
THEY DID. 

SOME OF THE LANGUAGE CONGRESS USED, CONSIDERED TAXWISE ONLY, PROVIDES
PLAUSIBLE SUPPORT FOR THE INTERPRETATION URGED BY THE GOVERNMENT WHICH
WOULD GIVE THE RELIEF AMENDMENT MORE LIMITED SCOPE.  BUT THE PROVISION
BEFORE US IS NOT A GENERAL TAX EXEMPTION TO BE INTERPRETED IN THE
FRAMEWORK OF A CURRENTLY OPERATING GENERAL REVENUE LAW.  IT IS A
SPECIAL RETROACTIVE RELIEF MEASURE TO AUTHORIZE REPAYMENT OF TAXES
COLLECTED IN PREVIOUS YEARS UNDER A REVENUE LAW WHICH HAD ALREADY BEEN
SUBSTANTIALLY ABANDONED.  THE LANGUAGE OF THIS EXTRAORDINARY RELIEF
MEASURE AND THE CIRCUMSTANCES WHICH PROMPTED ITS PASSAGE CONVINCE US
THAT CONGRESS INTENDED TO PROVIDE REFUNDS TO CORPORATE TAXPAYERS, WITH
POSSIBLE MINOR EXCEPTIONS, WHO HAD PAID UNDISTRIBUTED PROFITS TAXES AS
A CHOICE BETWEEN CONFLICTING STATE AND FEDERAL COMPULSIONS. 

FURTHERMORE, THE VERY MECHANICS OF THE 1942 AMENDMENT REQUIRE THAT
DETERMINATION OF RIGHTS TO REFUND UNDER IT BE BASED ON CONSIDERATION OF
SOMETHING OTHER THAN THE TAX MEANING OF THE 1936 ACT OR OTHER TAX
TERMINOLOGY.  THE RIGHT TO RECOVERY IN EVERY CASE DEPENDS ULTIMATELY
UPON WHETHER FEDERAL LAW OR FEDERAL REGULATORY BODIES, OR STATE LAW OR
STATE REGULATORY BODIES, PROHIBIT PAYMENTS OF DIVIDENDS.  IN THIS CASE
THE ULTIMATE RIGHT TO REFUND DEPENDS UPON STATE LAW.  CF. LYETH V.
HOEY, 305 U.S. 188, 193.  BEFORE THAT RIGHT CAN BE FINALLY ESTABLISHED,
COURTS MUST EXAMINE STATE LAW AT LEAST TO THE EXTENT OF DETERMINING (1)
WHAT IS A "DEFICIT"; (2) WHAT ARE "ACCUMULATED EARNINGS AND PROFITS";
(3) WHAT WAS THE STATE LAW ON THESE QUESTIONS PRIOR TO MAY 1, 1936; (4)
WHETHER PAYMENTS OF DIVIDENDS UNDER THESE CIRCUMSTANCES WERE PROHIBITED
BY STATE LAW.  ACCEPTANCE OF THE GOVERNMENT'S CONTENTION WOULD MEAN
THAT COURTS ADMINISTERING THE 1942 ACT MUST FIRST DETERMINE WHETHER A
DEFICIT EXISTS UNDER FEDERAL LAW; IF SUCH A FEDERAL DEFICIT EXISTS,
THEY MUST THEN TURN TO STATE LAW TO DECIDE WHETHER UNDER IT A DEFICIT
EXISTS SUCH AS PROHIBITS THE PAYMENT OF DIVIDENDS.  WE DO NOT THINK
THAT CONGRESS INTENDED THE COURTS SO TO ADMINISTER THE 1942 AMENDMENT. 
THE GOVERNMENT'S ARGUMENT THAT IT DOES RELIES HEAVILY UPON THE SENATE
COMMITTEE REPORT. 

WE THINK THE SENATE COMMITTEE REPORT, AS A WHOLE, LEANS TOWARD THE
VIEW WE HAVE TAKEN OF THE PURPOSE OF THE LAW.  FN9  BUT IN ONE OF THE
SIX ILLUSTRATIVE EXAMPLES OF APPLICATION OF THE NEW TAX RELIEF
PROVISIONS OF THE AMENDMENT, AND IN THE SUBSEQUENT TREASURY
REGULATIONS, IT WAS INDICATED THAT NO TAX CREDIT SHOULD BE ALLOWED
WHERE A TAX DEFICIT RESULTED FROM "PRIOR CAPITALIZATION OF SURPLUS IN
THE COURSE OF A NONTAXABLE REORGANIZATION."  FN10  ASIDE FROM THE FACT
THAT CORPORATE REORGANIZATIONS AND SIMPLE STOCK DIVIDENDS ARE QUITE
DIFFERENT THINGS, WE FIND THIS ONE ILLUSTRATIVE EXAMPLE INSUFFICIENT TO
OUTWEIGH THE CONSIDERATIONS WHICH HAVE GOVERNED OUR INTERPRETATION OF
THE 1942 AMENDMENT. 

WE ARE PERSUADED THAT CONGRESS AT LEAST INTENDED BY THE AMENDMENT TO
REFUND TAXES IMPOSED ON CORPORATIONS WHICH HAD FAILED TO DISTRIBUTE
DIVIDENDS WHEN DISTRIBUTION, IN VIOLATION OF STATE LAW, WOULD HAVE
IMPAIRED LONG-EXISTING STATE-APPROVED CORPORATE CAPITALIZATIONS.  SEE
UNITED STATES V. BYRON SASH & DOOR CO., 150 F.2D 44, 46.  IN ORDER THAT
THIS PURPOSE MAY BE EFFECTED, THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS IS AFFIRMED.    FN1  "I.  NO CORPORATION SHALL PAY DIVIDENDS IN
CASH OR PROPERTY, (A) EXCEPT FROM THE SURPLUS OF THE AGGREGATE OF ITS
ASSETS OVER THE AGGREGATE OF ITS LIABILITIES, PLUS THE AMOUNT OF ITS
CAPITAL STOCK; OR (B) OUT OF ANY SURPLUS DUE OR ARISING FROM (1) ANY
PROFIT ON TREASURY SHARES BEFORE RESALE; OR (2) ANY UNREALIZED
APPRECIATION IN VALUE OR REVALUATION OF FIXED ASSETS; OR (3) ANY
UNREALIZED APPRECIATION IN VALUE OR REVALUATION OF INVENTORIES BEFORE
SALE; OR (4) THE UNACCRUED PORTION OF UNREALIZED PROFIT ON NOTES, BONDS
OR OBLIGATIONS FOR THE PAYMENT OF MONEY, PURCHASED OR OTHERWISE
ACQUIRED, UNLESS SUCH NOTES, BONDS OR OBLIGATIONS ARE READILY
MARKETABLE, IN WHICH CASE THEY MAY BE TAKEN AT THEIR ACTUAL MARKET
VALUE; OR (5) THE UNACCRUED OR UNEARNED PORTION OF ANY UNREALIZED
PROFIT IN ANY FORM WHATEVER, WHETHER IN THE FORM OF NOTES, BONDS,
OBLIGATIONS FOR THE PAYMENT OF MONEY, INSTALLMENT SALES, CREDITS OR
OTHERWISE, EXCEPT AS PROVIDED IN THE PRECEDING SUB-PARAGRAPH (4). 

     . .         .         .         . 

"III.  NO CORPORATION SHALL PAY DIVIDENDS IN SHARES OF THE
CORPORATION, EXCEPT FROM THE SURPLUS OF THE AGGREGATE OF ITS ASSETS
...  OVER THE AGGREGATE OF ITS LIABILITIES, PLUS THE AMOUNT OF ITS
CAPITAL STOCK."  LA. ACTS 1928, NO. 250, SEC. 26, I, III, 1 LA. GEN.
STAT. SEC. 1106. 

FN2  49 STAT. 1648, 1655-1657. 

FN3  THE HOUSE WAYS AND MEANS COMMITTEE REPORTED THAT SEC. 501 OF THE
1942 ACT ALLOWED CORPORATIONS TO DEDUCT CAPITAL LOSSES FROM THEIR
CAPITAL ASSETS FOR PURPOSES OF THE UNDISTRIBUTED PROFITS TAX EVEN
THOUGH ONLY $2,000 OF SUCH CAPITAL LOSS WAS DEDUCTIBLE FROM GROSS
INCOME FOR OTHER PURPOSES. 

ANOTHER AMENDMENT PROVIDED A STOCK REDEMPTION CREDIT DEDUCTIBLE FROM
GROSS INCOME TAXABLE FOR UNDISTRIBUTED PROFITS TAX PURPOSES. 

AND THE BREADTH OF THE REFUND PROVISIONS IS ILLUSTRATED BY THE
PROVISIONS MAKING THE AMENDMENT EFFECTIVE AS OF THE DATE THE 1936 ACT
WAS ENACTED, AND EXTENDING THE STATUTE OF LIMITATIONS TO PERMIT REFUNDS
FOR ALL OVERPAYMENTS SINCE THAT DATE.  H.R. REP. 2333, 77TH CONG., 2D
SESS., 170(1942). 

FN4  SEN. REP. NO. 1631, 77TH CONG., 2D SESS., 244, 245(1942). 

FN5  HEARINGS BEFORE SENATE COMMITTEE ON FINANCE ON REVENUE ACT OF
1942, 77TH CONG., 2D SESS., 2343-2345(1942).  COUNSEL FOR ANOTHER
DEFICIT RAILROAD CORPORATION POINTED OUT THAT UNDER GOVERNING STATE LAW
THAT RAILROAD'S OFFICERS WOULD HAVE BEEN LIABLE FOR A PENALTY OF DOUBLE
THE DAMAGES TO ANYONE HARMED.  ID. AT 1422. 

FN6  STATEMENT OF MR. JOHN E. HUGHES: 

"NEXT I HAVE A STATEMENT ON BEHALF OF CRANE JOHNSON CO. THAT SECTION
501 OF THE HOUSE BILL SHOULD BE SIMPLIFIED.  THAT POINT IS THIS:  IF A
CORPORATION WAS FORBIDDEN BY STATE LAW TO DECLARE A DIVIDEND BECAUSE
ITS CAPITAL STOCK WAS IMPAIRED, IT COULD NOT AVOID THE UNDISTRIBUTED
PROFITS TAX ENACTED IN 1936 AND WAS CAUGHT IN A TRAP.  A RICH
CORPORATION COULD.  IT COULD DECLARE A DIVIDEND AND AVOID IT.  SURELY
YOU WOULD NOT DISCRIMINATE AGAINST A POOR ONE. 

"FURTHERMORE, IF IT HAD AN IMPAIRMENT OF CAPITAL STOCK AND WAS
ORGANIZED UNDER THE LAWS OF ABOUT ONE-THIRD OF THE STATES WHERE
CORPORATIONS IN SUCH CONDITION ARE ALLOWED TO DECLARE DIVIDENDS, A
DIVIDEND WOULD BE A RETURN OF CAPITAL TO THE SHAREHOLDER AND NO CREDIT
FOR THE UNDISTRIBUTED PROFITS TAX WOULD BE GIVEN. 

"THERE IS NO REASON FOR GRANTING RELIEF RETROACTIVELY IN THE LIMITED
CASES WHICH MAY BE HELD TO BE COVERED BY THE VAUGE AND AMBIGUOUS
LANGUAGE OF SECTION 501 OF THE HOUSE BILL WITHOUT GRANTING RELIEF IN
THESE CASES ALSO. 

"THE LANGUAGE OF SECTION 501 IS VAGUE AND AMBIGUOUS AND OUGHT TO BE
SIMPLIFIED.  IN 1938 RELIEF WAS GRANTED AS SOON AS THIS SITUATION WAS
BROUGHT TO THE ATTENTION OF CONGRESS, BUT UNFORTUNATELY WAS NOT MADE
RETROACTIVE TO 1936.  THE HOUSE BILL IN SECTION 501 PROPERLY MAKES IT
RETROACTIVE TO 1936, BUT IS NOT PHRASED IN SIMPLE ENOUGH LANGUAGE." 
HEARINGS, SUPRA 1022.  SEE ALSO ID. AT 1306-1308. 

FN7  SEE H.R. REP., NOTE 3, SUPRA. 

FN8  SEE SEN. REP., NOTE 4, SUPRA. 

FN9  SEN. REP. 1631, NOTE 4, SUPRA, OUTLINING SEC. 501 OF THE
PROPOSED REVENUE ACT OF 1942 STATED: 

"...  A NEW PARAGRAPH  ...  HAS BEEN ADDED, PROVIDING FOR AN
ADDITIONAL CREDIT IN CASES OF CORPORATIONS HAVING A DEFICIT IN
ACCUMULATED EARNINGS AND PROFITS AND PROHIBITED BY LAW FROM PAYING
DIVIDENDS, AND  ...  A NEW SUBSECTION HAS BEEN ADDED PROVIDING FOR A
STOCK REDEMPTION CREDIT. 

"SECTION 501  ...  GRANTS RELIEF FROM THE UNDISTRIBUTED-PROFITS TAX
FOR TAXABLE YEARS BEGINNING AFTER DECEMBER 31, 1935, AND PRIOR TO
JANUARY 1, 1938, BY ALLOWING AS AN ADDITIONAL CREDIT IN COMPUTING
UNDISTRIBUTED NET INCOME THE PORTION OF THE ADJUSTED NET INCOME WHICH,
IN CERTAIN INSTANCES, COULD NOT BE DISTRIBUTED AS A TAXABLE DIVIDEND
.... 

"UNDER SECTION 14 OF THE REVENUE ACT OF 1936 CORPORATIONS IN GENERAL
WERE SUBJECT TO SURTAX AT VARIOUS RATES FROM 7 TO 27 PERCENT OF THEIR
UNDISTRIBUTED NET INCOME.  IN SOME INSTANCES STATE LAW OR AN ORDER OF A
PUBLIC REGULATORY BODY PROHIBITED PAYMENT OF DIVIDENDS DURING THE
EXISTENCE OF A DEFICIT EVEN THOUGH THE CORPORATION HAD CURRENT EARNINGS
AND PROFITS WHICH WOULD CONSTITUTE UNDISTRIBUTED NET INCOME UNDER THE
DEFINITION THEREOF IN SECTION 14(A)(2).  SUCH CORPORATIONS WERE,
THEREFORE, SUBJECT TO UNDISTRIBUTED PROFITS SURTAX EVEN THOUGH THEY
WERE PROHIBITED BY LAW FROM PAYING DIVIDENDS.  THE ADDITION OF THE NEW
PARAGRAPH 3 TO SUBSECTION (C) OF SECTION 26 TO PROVIDE AN ADDITIONAL
CREDIT IN THE AMOUNT OF THE DEFICIT IN ACCUMULATED EARNINGS AND PROFITS
AS OF THE CLOSE OF THE PRECEDING TAXABLE YEAR IS INTENDED TO GIVE
RELIEF IN CERTAIN OF THESE CASES. 

"ALSO UNDER SECTION 14 OF THE REVENUE ACT OF 1936, IT WAS POSSIBLE
THAT THE UNDISTRIBUTED NET INCOME OF A CORPORATION MIGHT EXCEED
ACCUMULATED AND CURRENT EARNINGS AND PROFITS.  IN SUCH CASE THE TAX
COULD NOT BE AVOIDED EVEN IF DISTRIBUTIONS WERE MADE TO SHAREHOLDERS." 
THE AMENDMENT WAS TO PROVIDE RELIEF IN THIS SITUATION ALSO. 

FN10  ID. AT 246. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE REED JOINS,
DISSENTING. 

THE REVENUE ACT OF 1936 IMPOSED A SURTAX ON UNDISTRIBUTED CORPORATE
PROFITS.  SECTION 26(C)(1) GAVE RELIEF FROM THIS SURTAX UNDER DEFINED
CIRCUMSTANCES.  FN1  IN HELVERING V. NORTHWEST STEEL MILLS, 311 U.S.
46, IT WAS HELD THAT ALTHOUGH A RESTRICTION ON THE DISTRIBUTION OF
CORPORATE PROFITS WAS IMPOSED BY STATE LAW, A CREDIT FOR SUCH WITHHELD
PROFITS WAS NOT AUTHORIZED BY SEC. 26(C)(1).  IN REACHING THIS
CONCLUSION, THE COURT TOOK INTO ACCOUNT THAT IT "HAS BEEN SAID MANY
TIMES THAT PROVISIONS GRANTING SPECIAL TAX EXEMPTIONS ARE TO BE
STRICTLY CONSTRUED."  HELVERING V. NORTHWEST STEEL MILLS, SUPRA, AT
49.  BY WAY OF RELAXING THE RESTRICTED SCOPE WHICH THIS COURT GAVE TO
EXEMPTION FROM THE UNDISTRIBUTED PROFITS TAX, CONGRESS, BY THE REVENUE
ACT OF 1942, SUBSTITUTED A NEW SUBDIVISION (3) TO SEC. 26(C) OF THE
REVENUE ACT OF 1936.  THIS SECTION DID NOT UNDO THE NORTHWEST STEEL
MILLS DOCTRINE.  IT DID NOT ALLOW A DEDUCTION FOR PROFITS FORBIDDEN TO
BE DISTRIBUTED BY STATE LAW, AS IT HAD IN SEC. 26(C)(1) ALLOWED CREDIT
FOR PROFITS UNDISTRIBUTED BECAUSE OF A "WRITTEN CONTRACT."  CONGRESS
GAVE RELIEF FOR EARNINGS FORBIDDEN TO BE DISTRIBUTED BY STATE LAW ONLY
"IN THE CASE OF A CORPORATION HAVING A DEFICIT IN ACCUMULATED EARNINGS
AND PROFITS AS OF THE CLOSE OF THE PRECEDING TAXABLE YEAR  ...."  FN2 

THIS IS TAX LANGUAGE AND SHOULD BE READ IN ITS TAX SENSE.  WE MUST
NOT DISREGARD THE ILLUMINATION OF AN AUTHORITATIVE TAX LEXICON IN
READING TAX LEGISLATION.  THE LANGUAGE OF THE 1942 AMENDMENT CARRIES
WITH IT TAX USAGE, TAX PRACTICE, AND THE GLOSS OF AUTHORITATIVE
LEGISLATIVE HISTORY.  ALL COMBINE TO MAKE THE CONDITION UNDER WHICH
STATE LAW PROHIBITING DISTRIBUTION OF PROFITS COMES INTO PLAY, THAT
WHICH CONGRESS IN WORDS OF ART SAID WAS THE CONDITION, NAMELY, THE
EXISTENCE OF "A DEFICIT IN ACCUMULATED EARNINGS AND PROFITS."  HERE
THERE WAS NO DEFICIT IN THE CONTROLLING SENSE OF THE TERM.  AND NOTHING
WARRANTS THE ATTRIBUTION OF A NON-TECHNICAL MEANING TO SO SETTLED A
TECHNICAL TERM.  NOTHING, THAT IS, EXCEPT THE SUGGESTION THAT TO GIVE
THE 1942 AMENDMENT THIS ESTABLISHED MEANING MIGHT NOT AFFORD THE RELIEF
THAT, AS A MATTER OF ABSTRACT JUSTICE, SHOULD BE AFFORDED.  BUT THIS IS
MERELY AN ATTEMPT TO INVOKE WHAT HAS BEEN CALLED THE "EQUITY" OF A
STATUTE.  I AM NO FRIEND OF ARTIFICIAL CANONS OF CONSTRUCTION, AND I
WOULD NOT STRAIN LANGUAGE IN ORDER TO CONSTRUE TAX EXEMPTIONS
STRICTLY.  ON THE OTHER HAND, REVENUE ACTS ARE NOT THE KIND OF
LEGISLATION WHICH SHOULD BE LOOSELY CONSTRUED IN ORDER TO GRANT
EXEMPTIONS. 

THE LEGISLATIVE HISTORY OF THIS ENACTMENT AND THE ADMINISTRATIVE
PRACTICE ONLY REENFORCE WHAT SEEMS TO ME TO BE THE COMPELLING
REQUIREMENT, TO RENDER TECHNICAL TERMS USED BY CONGRESS WITH THEIR
TECHNICAL MEANING.  IF IT BE SUGGESTED THAT COUNSEL FOR TAXPAYERS AT A
CONGRESSIONAL HEARING URGED THE FAIRNESS OF THE CONSTRUCTION WHICH THE
COURT NOW PLACES UPON WHAT CONGRESS HAS EXPRESSED, IT WOULD NOT BE THE
FIRST TIME THAT THE FINAL LEGISLATION OF CONGRESS DID NOT SATISFY THE
DESIRE OF SOME OF ITS PROPONENTS.  IN ANY EVENT, I DO NOT THINK THE
ARGUMENT OF COUNSEL FOR A TAXPAYER URGING RELIEF SHOULD CARRY MORE
WEIGHT THAN THE USE BY CONGRESS OF SETTLED TAX LANGUAGE, CARRYING A
MEANING WHICH EXCLUDED THAT RESULT, A MEANING WHICH IS REENFORCED BY
THE LEGISLATIVE, JUDICIAL AND ADMINISTRATIVE HISTORY THAT LED UP TO AND
FOLLOWED THE ENACTMENT.  SEE CENTURY ELECTRIC CO. V. COMMISSIONER, 144
F.2D 983, AFFIRMING THE TAX COURT, 3 T.C. 297; S. REP. NO. 1631, 77TH
CONG., 2D SESS., PP. 244-46; TREASURY REGULATIONS 94 AND 101, ART. 115
11; TREASURY REGULATIONS 103, SEC. 19.115-11; TREASURY REGULATIONS 111,
SEC. 29.115-11.  THE SHORT OF THE MATTER IS, THAT EVEN THOUGH CORPORATE
PROFITS HERE WERE WITHHELD BECAUSE LOUISIANA FORBADE THEIR
DISTRIBUTION, THERE CAN BE NO CREDIT ALLOWED FOR A DEFICIT BECAUSE IN A
FEDERAL TAX SENSE THERE WAS NO DEFICIT. 

NO DOUBT CONGRESS, TO SOME EXTENT, DESIRED TO RELIEVE FROM THE
UNDISTRIBUTED PROFITS TAX CORPORATIONS FORBIDDEN BY STATE LAW FROM
DECLARING DIVIDENDS.  BUT NEITHER WHAT CONGRESS ENACTED NOR ITS
LEGISLATIVE HISTORY INDICATES A PURPOSE TO DISREGARD THE LIMITING
PROVISIONS OF SEC. 115(H) OF THE REVENUE ACT OF 1936.  FN3 THIS
F.2D 931, SEE S. REP. 2156, 74TH CONG., 2D SESS., P. 19, REQUIRES THAT
IN RESPECT TO FEDERAL TAXES, ASSETS BE TREATED AS AVAILABLE FOR
DISTRIBUTION AS EARNINGS REGARDLESS OF STOCK DIVIDENDS WHICH CAPITALIZE
EARNINGS AND PROFITS.  H. REP. NO. 2894, 76TH CONG., 3D SESS., P. 41,
CITED IN COMMISSIONER V. WHEELER, 324 U.S. 542, 546.  THE SPECIFIC
EXAMPLE CITED BY THE SENATE COMMITTEE REPORT ON SEC. 501 OF THE REVENUE
ACT OF 1942 SHOWS THAT CONGRESS INTENDED TO LIMIT THE RELIEF AFFORDED
BY THE AMENDMENT TO CASES WHERE THE DEFICIT IN QUESTION HAD NOT
RESULTED FROM THE CAPITALIZATION OF ACCUMULATED EARNINGS AND PROFITS. 
FN4  THE MAJORITY FINDS A DIFFERENCE BETWEEN CAPITALIZATION OF EARNINGS
IN A NONTAXABLE REORGANIZATION AND CAPITALIZATION OF EARNINGS BY A
SIMPLE STOCK DIVIDEND.  THE CIRCUMSTANCES ARE DIFFERENT BUT THE
DIFFERENCE IS NOT SIGNIFICANT FOR THE LEGAL EFFECT OF THE STOCK
DIVIDEND ON EARNINGS AND PROFITS.  THE EXAMPLE GIVEN IS CONCERNED WITH
THE EFFECT OF CAPITALIZING EARNINGS AND PROFITS, NOT WITH THE METHOD. 
IF CONGRESS MEANT TO RELIEVE UNDISTRIBUTED EARNINGS AND PROFITS EVEN
THOUGH THOSE EARNINGS AND PROFITS WERE CONSIDERED AVAILABLE UNDER SEC.
115(H), IT SHOULD HAVE SAID SO. 

WE THINK THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD BE
REVERSED. 

FN1  49 STAT. 1648, 1664. 

"IN THE CASE OF A CORPORATION THE FOLLOWING CREDITS SHALL BE ALLOWED
TO THE EXTENT PROVIDED IN THE VARIOUS SECTIONS IMPOSING TAX - 

     .         .         .         .         . 

"(1)  PROHIBITION ON PAYMENT OF DIVIDENDS.  AN AMOUNT EQUAL TO THE
EXCESS OF THE ADJUSTED NET INCOME OVER THE AGGREGATE OF THE AMOUNTS
WHICH CAN BE DISTRIBUTED WITHIN THE TAXABLE YEAR AS DIVIDENDS WITHOUT
VIOLATING A PROVISION OF A WRITTEN CONTRACT EXECUTED BY THE CORPORATION
PRIOR TO MAY 1, 1936, WHICH PROVISION EXPRESSLY DEALS WITH THE PAYMENT
OF DIVIDENDS.  IF A CORPORATION WOULD BE ENTITLED TO A CREDIT UNDER
THIS PARAGRAPH BECAUSE OF A CONTRACT PROVISION AND ALSO TO ONE OR MORE
CREDITS BECAUSE OF OTHER CONTRACT PROVISIONS, ONLY THE LARGEST OF SUCH
CREDITS SHALL BE ALLOWED, AND FOR SUCH PURPOSE IF TWO OR MORE CREDITS
ARE EQUAL IN AMOUNT ONLY ONE SHALL BE TAKEN INTO ACCOUNT." 

FN2  SECTION 501(A), REVENUE ACT OF 1942, 56 STAT. 798, 954.  "(3)
DEFICIT CORPORATION.  - IN THE CASE OF A CORPORATION HAVING A DEFICIT
IN ACCUMULATED EARNINGS AND PROFITS AS OF THE CLOSE OF THE PRECEDING
TAXABLE YEAR, THE AMOUNT OF SUCH DEFICIT, IF THE CORPORATION IS
PROHIBITED BY A PROVISION OF A LAW OR OF AN ORDER OF A PUBLIC
REGULATORY BODY FROM PAYING DIVIDENDS DURING THE EXISTENCE OF A DEFICIT
IN ACCUMULATED EARNINGS AND PROFITS, AND IF SUCH PROVISION WAS IN
EFFECT PRIOR TO MAY 1, 1936." 

FN3  49 STAT. 1648, 1688-89.  SEC. 115(H):  "EFFECT ON EARNINGS AND
PROFITS OF DISTRIBUTIONS OF STOCK.  - THE DISTRIBUTION (WHETHER BEFORE
JANUARY 1, 1936, OR ON OR AFTER SUCH DATE) TO A DISTRIBUTEE BY OR ON
BEHALF OF A CORPORATION OF ITS STOCK OR SECURITIES OR STOCK OR
SECURITIES IN ANOTHER CORPORATION SHALL NOT BE CONSIDERED A
DISTRIBUTION OF EARNINGS OR PROFITS OF ANY CORPORATION - 

"(1)  IF NO GAIN TO SUCH DISTRIBUTEE FROM THE RECEIPT OF SUCH STOCK
OR SECURITIES WAS RECOGNIZED BY LAW, OR 

"(2)  IF THE DISTRIBUTION WAS NOT SUBJECT TO TAX IN THE HANDS OF SUCH
DISTRIBUTEE BECAUSE IT DID NOT CONSTITUTE INCOME TO HIM WITHIN THE
MEANING OF THE SIXTEENTH AMENDMENT TO THE CONSTITUTION OR BECAUSE
EXEMPT TO HIM UNDER SECTION 115(F) OF THE REVENUE ACT OF 1934 OR A
CORRESPONDING PROVISION OF A PRIOR REVENUE ACT.  AS USED IN THIS
SUBSECTION THE TERM 'STOCK OR SECURITIES' INCLUDES RIGHTS TO ACQUIRE
STOCK OR SECURITIES."    FN4  S. REP. NO. 1631, 77TH CONG., 2D SESS.,
PP. 245-46: 

"(1)  THE X CORPORATION FOR THE CALENDAR YEAR 1936 HAD AN ADJUSTED NET
INCOME OF $200,000  .... 

"(2)  ASSUME IN THE ABOVE EXAMPLE THAT THE DEFICIT IN ACCUMULATED
EARNINGS AND PROFITS IS $20,000 FOR INCOME TAX PURPOSES, BUT THE
DEFICIT IN ACCUMULATED EARNINGS AND PROFITS ON THE CORPORATION'S BOOKS
BY REASON OF A PRIOR CAPITALIZATION OF SURPLUS IN THE COURSE OF A
NONTAXABLE REORGANIZATION AMOUNTS TO $250,000.  IN THIS CASE, ALTHOUGH
THE STATE LAW WOULD PROBABLY PROHIBIT PAYMENT OF ANY DIVIDENDS, THE
CREDIT ALLOWED UNDER THE AMENDMENT TO SECTION 26(C) IS LIMITED TO
$20,000, WHICH IS THE DEFICIT IN ACCUMULATED EARNINGS AND PROFITS FOR
INCOME TAX PURPOSES.  X CORPORATION, THEREFORE, WILL BE LIABLE FOR
UNDISTRIBUTED PROFITS SURTAX ON $180,000 OF ITS ADJUSTED NET INCOME." 
..END :









UNITED STATES V. HOY, 330 U.S. 724 


NO. 585.  ARGUED MARCH 14, 1947.  - DECIDED APRIL 7, 1947.  - REVERSED. 


1.  SECTION 5(G) OF THE FARM LABOR SUPPLY APPROPRIATION ACT OF 1944
DOES NOT EXCEPT AGRICULTURAL LABORERS FROM THE PROVISION OF SEC. 5 OF
THE IMMIGRATION ACT OF 1917 MAKING IT A CRIMINAL OFFENSE TO INDUCE TO
MIGRATE TO THE UNITED STATES AS CONTRACT LABORERS ALIENS WHO ARE NOT
ENTITLED TO ENTER THE UNITED STATES UNDER THE 1917 ACT OR ANY OTHER LAW
OF THE UNITED STATES.  PP. 730-731. 

2.  SINCE DISMISSAL OF THE INFORMATION IN THIS CASE WAS BASED ON THE
CONSTRUCTION OF THE 1917 ACT AS THE GOVERNMENT SOUGHT TO APPLY IT IN
THE INFORMATION, THE CASE WAS PROPERLY BROUGHT TO THIS COURT ON DIRECT
APPEAL FROM THE DISTRICT COURT.  P. 725. 

UNITED STATES V. LEM HOY. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

A UNITED STATES DISTRICT COURT DISMISSED AN INFORMATION CHARGING A
VIOLATION OF SEC. 5 OF THE IMMIGRATION ACT OF 1917, 39 STAT. 874, BY
INDUCING ALIENS TO MIGRATE TO THE UNITED STATES AS CONTRACT LABORERS -
ON THE GROUND THAT SEC. 5(G) OF THE FARM LABOR SUPPLY APPROPRIATION ACT
OF 1944, 58 STAT. 11, EXCEPTS AGRICULTURAL LABORERS FROM THE PROVISIONS
OF THE 1917 ACT.  ON DIRECT APPEAL TO THIS COURT, REVERSED, P. 731. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A UNITED STATES ATTORNEY FILED AN INFORMATION IN A FEDERAL DISTRICT
COURT CHARGING THAT THE APPELLEE, LEM HOY, "DID ATTEMPT TO INDUCE,
ASSIST, ENCOURAGE, AND SOLICIT, CERTAIN ALIEN PERSONS TO MIGRATE TO THE
UNITED STATES AS CONTRACT LABORERS  ...  WHO WERE NOT ALIEN CONTRACT
LABORERS DULY ENTITLED TO MIGRATE TO THE UNITED STATES UNDER THE ACT OF
FEBRUARY 5, 1917, OR TO ENTER OR MIGRATE TO THE UNITED STATES UNDER ANY
OTHER LAW OF THE UNITED STATES, AS THE DEFENDANT THEN AND THERE WELL
KNEW."  THE CONDUCT CHARGED WAS MADE AN OFFENSE BY SEC. 5 OF THE 1917
IMMIGRATION ACT REFERRED TO IN THE INFORMATION.  39 STAT. 874, 879, 8
U.S.C. SEC. 139.  HOY APPEARED, WAIVED INDICTMENT, ASKED FOR A BILL OF
PARTICULARS, AND MOVED TO DISMISS THE INFORMATION ON THE GROUND THAT
SEC. 5 OF THE 1917 ACT HAD BEEN REPEALED BY SEC. 5(G) OF THE FARM LABOR
SUPPLY APPROPRIATION ACT OF 1944.  58 STAT. 11, 15-16, 50 U.S.C. APP.,
SUPP. V, SEC. 1355(G).  THE BILL OF PARTICULARS SHOWED THAT HOY HAD
WRITTEN A LETTER TO CERTAIN PERSONS LIVING IN MEXICO TO INDUCE THEM TO
COME TO THE UNITED STATES TO WORK FOR HIM.  IN THE LETTER HOY TOLD THEM
THAT "IT MAKES NO DIFFERENCE IF YOU PASS AS CONTRABAND (SMUGGLE IN), AS
WHEREVER THE IMMIGRATION CATCHES YOU I WILL GET YOU OUT WITH A BOND." 
THE LETTER ALSO DIRECTED THE ALIENS TO SEE A MAN NEAR THE BORDER WHO
WOULD "BRING" THEM TO HOY FOR $25, AND STATED THAT HOY WOULD "ARRANGE
EVERYTHING."  IT WAS STIPULATED THAT HOY WANTED THE MEN TO WORK FOR HIM
AS AGRICULTURAL LABORERS. 

HOLDING THAT THE 1944 FARM LABOR ACT HAD MADE THE 1917 ACT
INAPPLICABLE TO SUCH FARM LABORERS, AND THEREFORE TO THOSE WHO INDUCED
THEIR ENTRY, THE DISTRICT COURT DISMISSED THE INFORMATION.  SINCE THIS
DISMISSAL WAS BASED ON THE CONSTRUCTION OF THE 1917 ACT AS THE
GOVERNMENT SOUGHT TO APPLY IT IN THE INFORMATION, THE CASE IS PROPERLY
HERE ON DIRECT APPEAL FROM THE DISTRICT COURT.  18 U.S.C. SUPP. V SEC.
682, 28 U.S.C. SEC. 345. 

THE 1944 FARM LABOR ACT, BY ITS TERMS, WAS DESIGNED TO FACILITATE THE
WARTIME EMPLOYMENT, AND THEREFORE THE IMMIGRATION INTO THE UNITED
STATES FOR A LIMITED STAY, OF AGRICULTURAL LABORERS FROM NORTH, SOUTH,
AND CENTRAL AMERICA, AND ISLANDS ADJACENT THERETO.  IN DETERMINING
WHETHER THIS INFORMATION WAS PROPERLY DISMISSED, IT IS APPROPRIATE FOR
US TO CONSIDER WHETHER CONGRESS INTENDED IN THE 1944 ACT TO REMOVE ALL
RESTRICTIONS, ENFORCEABLE BY SANCTIONS, AGAINST IMMIGRATION INTO THE
UNITED STATES OF SUCH AGRICULTURAL LABORERS FROM THE WESTERN
HEMISPHERE; AND AT THE SAME TIME WHETHER IT INTENDED TO REPEAL, NOT
ONLY THE PROVISION WHICH PROHIBITED CONTRACT LABORERS FROM ENTERING THE
COUNTRY, BUT ALSO THE LONG-STANDING LAW WHICH MADE IT A CRIMINAL
OFFENSE TO INDUCE SUCH PERSONS, BARRED BY LAW, TO ENTER.  FN1  IF THE
1944 ACT HAS THESE EFFECTS, IT MARKS A COMPLETE REVERSAL OF THE
CONGRESSIONAL POLICY WHICH HAS BEEN FOLLOWED FOR MORE THAN HALF A
CENTURY.  FN2 

IN LINE WITH THIS POLICY, THE PURPOSE OF THE 1917 ACT, ACCORDING TO
ITS TITLE, WAS "TO REGULATE THE IMMIGRATION OF ALIENS TO, AND THE
RESIDENCE OF ALIENS IN, THE UNITED STATES."  IT PROVIDED DETAILED
QUALIFICATIONS FOR PERSONS TO BE ADMITTED TO THE COUNTRY.  CERTAIN
PERSONS WERE TO BE COMPLETELY BARRED, SUCH AS IDIOTS, EPILEPTICS,
CHRONIC ALCOHOLICS, VAGRANTS, CRIMINALS, POLYGAMISTS, PROSTITUTES,
PERSONS AFFLICTED WITH LOATHSOME OR DANGEROUS CONTAGIOUS DISEASES,
PERSONS WHO ADVISE, ADVOCATE, OR TEACH OPPOSITION TO ORGANIZED
GOVERNMENT OR ITS OVERTHROW BY FORCE, ILLITERATES, AND CONTRACT
LABORERS, DEFINED AS PERSONS INDUCED OR ENCOURAGED TO COME TO THIS
COUNTRY BY OFFERS OR PROMISES OF EMPLOYMENT.  THE 1917 ACT FURTHER
PROVIDED FOR DEPORTATION OF IMPROPERLY ADMITTED ALIENS, AND AUTHORIZED
THE PROMULGATION OF REGULATIONS TO ENFORCE THE VARIOUS PROVISIONS
LOOKING TO EXCLUSION OF ALL PERSONS EXCEPT THOSE QUALIFIED TO ENTER THE
UNITED STATES UNDER THE PRESCRIBED STATUTORY STANDARDS.  PURSUANT TO
THE BROAD TERMS OF THE 1917 AND OTHER SUPPLEMENTARY ACTS, A BUREAU OF
IMMIGRATION AND NATURALIZATION, NOW A PART OF THE DEPARTMENT OF
JUSTICE, HAS BEEN ESTABLISHED TO EXAMINE THE QUALIFICATIONS OF THOSE
SEEKING ADMISSION AND OTHERWISE TO ENFORCE AND ADMINISTER THE
IMMIGRATION LAWS IN THE INTERIOR AND AT THE BORDERS.  FN3 

THE 1944 FARM LABOR ACT DOES NOT ON ITS FACE PURPORT TO RELAX THE
STANDARDS OF THE 1917 AND OTHER ACTS, EXCEPT IN A VERY LIMITED WAY.  IT
DOES NOT ABOLISH THE SCREENING, ADMINISTRATIVE AND ENFORCEMENT FUNCTION
OF THE IMMIGRATION AUTHORITIES.  INDEED THE SPONSOR OF THE BILL ON THE
SENATE FLOOR EXPLAINED THAT THE MEASURE PROPOSED MADE CERTAIN, BY
PROVISION FOR STRICT CONTROL OF IMMIGRATION AND IMMIGRANTS, THAT THE
STAY OF WORKERS ADMITTED PURSUANT TO ITS PROVISIONS WOULD BE WHOLLY
TEMPORARY, AND THAT "WE" WHO SPONSORED THE BILL "ARE NOT IN ANY WAY
INTERFERING WITH THE FIRMLY ESTABLISHED NATIONAL IMMIGRATION POLICY." 
FN4 

AGRICULTURAL LABORERS FROM THE RESTRICTIONS OF THE 1917 ACT, IS SET OUT
BELOW.  FN5  IT WILL BE NOTED THAT THIS SECTION DOES PERMIT ENTRANCE OF
AGRICULTURAL WORKERS WHO, BUT FOR THIS ACT, WOULD NOT BE ADMITTED UNDER
THE FORMER LAW.  THE ONLY EXCEPTIONS FROM THE LONG LIST OF NON
ADMISSIBLES UNDER THE 1917 AND OTHER ACTS ARE THESE:  ILLITERATES AND
THOSE WHO HAVE BEEN INDUCED TO COME INTO THE COUNTRY BY PROMISES OF
EMPLOYMENT, OR WHOSE PASSAGE HAS BEEN PAID BY CORPORATIONS OR OTHER
PERSONS.  BY SPECIFICALLY LIFTING THE IMMIGRATION BARRIERS IN THESE
RESPECTS, CONGRESS LEFT THE BARRIERS IN EFFECT WHICH BARRED PHYSICAL
AND MENTAL DEFECTIVES, THOSE WITH CERTAIN DISEASES, ETC.  AND EVEN THE
EXCEPTIONS GRANTED WERE NOT UNCONDITIONAL, FOR UNDER THE 1944 ACT
AGRICULTURAL LABORERS COULD STILL BE ADMITTED ONLY "FOR SUCH TIME AND
UNDER SUCH CONDITIONS  ...  AS MAY BE REQUIRED BY REGULATIONS
PRESCRIBED BY THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION WITH
THE APPROVAL OF THE ATTORNEY GENERAL  ..." 

IN PURSUANCE OF THEIR AUTHORITY UNDER THIS ACT, THE IMMIGRATION
AUTHORITIES HAVE PROMULGATED REGULATIONS WHICH PROVIDE IN DETAIL FOR
THE ADMISSION OF AGRICULTURAL LABORERS WHO ARE "IN ALL RESPECTS
ADMISSIBLE UNDER THE PROVISIONS OF THE IMMIGRATION LAWS EXCEPT" AS TO
THE PARTICULAR LIMITED PROVISIONS OF THE 1917 ACT DESIGNATED IN THE
1944 ACT.  8 C.F.R. CUM. SUPP. SEC. 115.2(C).  AND AS SHOWN BY THE
SENATE AND HOUSE REPORTS AND HEARINGS ON THE 1944 ACT, A VAST PROGRAM
WAS TO BE CARRIED OUT TO PERMIT AGRICULTURAL LABORERS TO ENTER AND TO
REMAIN IN THE UNITED STATES, BUT ONLY FOR A LIMITED TIME AND UNDER SUCH
CONDITIONS AS CONFORM WITH THE IMMIGRATION LAWS AND REGULATIONS, AND IN
ACCORDANCE, SO FAR AS THIS CASE IS CONCERNED, WITH AGREEMENTS MADE WITH
THE GOVERNMENT OF MEXICO.  FN6  FAR FROM ABOLISHING THE
RESPONSIBILITIES OF THE IMMIGRATION AUTHORITIES IN EXAMINING AND
APPROVING THESE PERSONS AT THE BORDER AND SUPERVISING THEIR STAY, THE
1944 ACT, THE TREATY AND THE REGULATIONS, ALTHOUGH CHANGING THOSE
RESPONSIBILITIES IN SOME RESPECTS, HAVE ACTUALLY INCREASED THEM. 
ALIENS MUST STILL MAKE A LAWFUL ENTRY AT THE PLACES DESIGNATED FOR
THEIR EXAMINATION, SCREENING, AND REGISTRATION.  THOSE WHO DO NOT MEET
THE STATUTORY STANDARDS OF THE 1917 ACT, WITH THE MINOR EXCEPTIONS MADE
IN THE 1944 ACT, MUST BE TURNED BACK.  AND THOSE WHO ARE PERMITTED TO
ENTER REMAIN SUBJECT TO SUPERVISION, CONTROL, AND EARLY DEPORTATION BY
IMMIGRATION AUTHORITIES.  FN7 

THIS BRINGS US TO THE CONTENTION THAT HOY CANNOT BE PROSECUTED UNDER
SEC. 5 OF THE 1917 ACT BECAUSE THE 1944 ACT PROVIDES THAT SEC. 5 "SHALL
NOT APPLY TO THE IMPORTATION OF ALIENS UNDER THIS TITLE."  BUT HOY WAS
NOT CHARGED WITH INDUCING OR ENCOURAGING THE MEXICAN ALIENS WHOM HE
WROTE TO COME IN "UNDER THIS TITLE."  FN8  HE WAS ALLEGEDLY INVITING
THEM TO ENTER THE COUNTRY IN DISREGARD AND DEFIANCE OF "THIS TITLE" AND
ALL OTHER LAW.  THUS HE WAS SPECIFICALLY CHARGED WITH INDUCING ALIENS
TO COME INTO THIS COUNTRY WHO WERE NOT ENTITLED TO ENTER UNDER THE 1917
ACT OR "UNDER ANY OTHER LAW OF THE UNITED STATES, AS  ...  (HE) THEN
AND THERE WELL KNEW."  IF THIS CHARGE, AS CLARIFIED BY THE BILL OF
PARTICULARS, IS TRUE, HE WAS URGING ALIENS TO COME INTO THIS COUNTRY
WITHOUT PASSING THROUGH THE IMMIGRATION STATIONS, WITHOUT REGARD TO THE
LENGTH OF THEIR STAY, OR WHETHER THEY WERE BARRED BY REASON OF DISEASE,
PHYSICAL WEAKNESS, OR ANY OF THE OTHER DISQUALIFICATIONS SET OUT IN THE
1917 AND OTHER LAWS OR REGULATIONS. 

THE 1944 ACT WAS INTENDED TO PERMIT ALIEN AGRICULTURAL WORKERS TO
ENTER THE COUNTRY FOR A LIMITED TIME UNDER GOVERNMENT RULES AND
REGULATIONS AFTER PROPER PROOFS TO GOVERNMENT OFFICIALS THAT THE ALIENS
WERE SO QUALIFIED.  IT IS TRUE THAT THE LAW WAS INTENDED TO FILL THE
NEED FOR AGRICULTURAL WORKERS BY REMOVING THE 1917 PROHIBITION AGAINST
WOULD-BE EMPLOYERS' INVITING AND INDUCING FOREIGN WORKERS TO COME TO
THE UNITED STATES.  BUT WE ARE NOT PERSUADED THAT THE LAW, WHICH
PROVIDED SPECIFIC LIMITATIONS AND REQUISITES TO ENTRY UNDER IT, CAN
PROPERLY BE INTERPRETED TO AUTHORIZE WOULD-BE EMPLOYERS TO INVITE,
INDUCE AND OFFER REWARDS TO ALIENS TO CIRCUMVENT IMMIGRATION PROCESSING
AND TO ENTER THE UNITED STATES IN DISREGARD AND DEFIANCE OF LAW.  THE
1917 PROHIBITION AGAINST EMPLOYERS INDUCING LABORERS TO ENTER THE
COUNTRY, ENFORCEABLE BY SANCTIONS, REMOVED OBSTACLES WHICH MIGHT HINDER
IMMIGRATION AUTHORITIES IN THE PERFORMANCE OF THEIR DUTIES; WE DO NOT
THINK THE 1944 ACT WAS INTENDED TO LICENSE EMPLOYERS TO OBSTRUCT THEIR
PERFORMANCE.  THE INFORMATION CHARGED AN OFFENSE AND IT SHOULD NOT HAVE
BEEN DISMISSED.  REVERSED. 

FN1  COMPARE 39 STAT. 894, 8 U.S.C. SEC. 163(CRIME TO AID OR ASSIST
ANY PERSON TO ENTER WHO BELIEVES IN VIOLENT OVERTHROW OF GOVERNMENT);
39 STAT. 880, 43 STAT. 166, 8 U.S.C. SEC. 145(CRIME TO BRING TO THE
UNITED STATES AN ALIEN WITH CERTAIN DISEASES); 45 STAT. 1551, 8 U.S.C.
SEC. 180A (CRIME FOR ALIEN TO ENTER AT ANY PLACE OTHER THAN AT AN
IMMIGRATION POINT, OR TO ELUDE EXAMINATION).  SEE ALSO 35 STAT. 1152,
18 U.S.C. SEC. 550 WHICH PROVIDES THAT "WHOEVER DIRECTLY COMMITS  ...
AN OFFENSE DEFINED IN ANY LAW OF THE UNITED STATES, OR AIDS, ABETS,
COUNSELS, COMMANDS, INDUCES, OR PROCURES ITS COMMISSION, IS A
PRINCIPAL." 

FN2  SEE 23 STAT. 332; 32 STAT. 1213; 34 STAT. 898; 41 STAT. 1008;
HOLY TRINITY CHURCH V. UNITED STATES, 143 U.S. 457, 463-465. 

FN3  22 STAT. 214, 24 STAT. 415, 26 STAT. 1085, 28 STAT. 780, 32
STAT. 825, 828, 37 STAT. 736, 737, 54 STAT. 1238, 8 U.S.C. SECS. 100
103. 

FN4 90 CONG. REC. 864(1944). 

FN5  "IN ORDER TO FACILITATE THE EMPLOYMENT BY AGRICULTURAL EMPLOYERS
IN THE UNITED STATES OF NATIVE-BORN RESIDENTS OF NORTH AMERICA, SOUTH
AMERICA, AND CENTRAL AMERICA, AND THE ISLANDS ADJACENT THERETO,
DESIRING TO PERFORM AGRICULTURAL LABOR IN THE UNITED STATES, DURING
CONTINUATION OF HOSTILITIES IN THE PRESENT WAR, ANY SUCH RESIDENT
DESIRING TO ENTER THE UNITED STATES FOR THAT PURPOSE SHALL BE EXEMPT
FROM THE PAYMENT OF HEAD TAX REQUIRED BY SECTION 2 OF THE IMMIGRATION
ACT OF FEBRUARY 5, 1917, AND FROM OTHER ADMISSION CHARGES, AND SHALL BE
EXEMPT FROM THOSE EXCLUDING PROVISIONS OF SECTION 3 OF SUCH ACT WHICH
RELATE TO CONTRACT LABORERS, THE REQUIREMENTS OF LITERACY, AND THE
PAYMENT OF PASSAGE BY CORPORATIONS, FOREIGN GOVERNMENT, OR OTHERS; AND
ANY SUCH RESIDENT SHALL BE ADMITTED TO PERFORM AGRICULTURAL LABOR IN
THE UNITED STATES FOR SUCH TIME AND UNDER SUCH CONDITIONS (BUT NOT
INCLUDING THE EXACTION OF BOND TO INSURE ULTIMATE DEPARTURE FROM THE
UNITED STATES) AS MAY BE REQUIRED BY REGULATIONS PRESCRIBED BY THE
COMMISSIONER OF IMMIGRATION AND NATURALIZATION WITH THE APPROVAL OF THE
ATTORNEY GENERAL; AND IN THE EVENT SUCH REGULATIONS REQUIRE DOCUMENTARY
EVIDENCE OF THE COUNTRY OF BIRTH OF ANY SUCH RESIDENT WHICH HE IS
UNABLE TO FURNISH, SUCH REQUIREMENT MAY BE WAIVED BY THE ADMITTING
OFFICER OF THE UNITED STATES AT THE POINT WHERE SUCH RESIDENT SEEKS
ENTRY INTO THE UNITED STATES IF SUCH OFFICIAL HAS OTHER PROOF
SATISFACTORY TO HIM THAT SUCH RESIDENT IS A NATIVE OF THE COUNTRY
CLAIMED AS HIS BIRTHPLACE.  EACH SUCH RESIDENT SHALL BE PROVIDED WITH
AN IDENTIFICATION CARD (WITH HIS PHOTOGRAPH AND FINGERPRINTS) TO BE
PRESCRIBED UNDER SUCH REGULATIONS WHICH SHALL BE IN LIEU OF ALL OTHER
DOCUMENTARY REQUIREMENTS, INCLUDING THE REGISTRATION AT TIME OF ENTRY
OR AFTER ENTRY REQUIRED BY THE ALIEN REGISTRATION ACT OF 1940.  ANY
SUCH RESIDENT ADMITTED UNDER THE FOREGOING PROVISIONS WHO FAILS TO
MAINTAIN THE STATUS FOR WHICH HE WAS ADMITTED OR TO DEPART FROM THE
UNITED STATES IN ACCORDANCE WITH THE TERMS OF HIS ADMISSION SHALL BE
TAKEN INTO CUSTODY UNDER A WARRANT ISSUED BY THE ATTORNEY GENERAL AT
ANY TIME AFTER ENTRY AND DEPORTED IN ACCORDANCE WITH SECTION 20 OF THE
IMMIGRATION ACT OF FEBRUARY 5, 1917.  SECTIONS 5 AND 6 OF SUCH ACT
SHALL NOT APPLY TO THE IMPORTATION OF ALIENS UNDER THIS TITLE.  NO
PROVISION OF THIS TITLE SHALL AUTHORIZE THE ADMISSION INTO THE UNITED
STATES OF ANY ENEMY ALIEN."  SEC. 5(G) FARM LABOR SUPPLY APPROPRIATION
ACT, 1944, 58 STAT. 11, 15-16, 50 U.S.C. APP. SUPP. V, 1355(G).    FN6
SEE H. REP. NO. 246, 78TH CONG., 1ST SESS., 3, 4, 6(1943); H. REP. NO.
358, 78TH CONG., 1ST SESS., 8(1943); SEN. REP. NO. 157, 78TH CONG., 1ST
SESS., 3, 4(1943).    FN7  FOR EXAMPLE, UNDER THE TREATY WITH MEXICO
GOVERNING WARTIME IMMIGRATION OF THESE FARM LABORERS OUR GOVERNMENT HAS
THE RIGHT TO DETERMINE WHERE IN THE UNITED STATES WORKERS ARE NEEDED
MOST AND TO SEND THEM THERE.  OTHER PROVISIONS OF THE TREATY REQUIRE
THAT 10% OF EACH WORKER'S WAGES BE EARMARKED AND RETURNED FOR DEPOSIT
IN MEXICO, AND THAT THEIR LIVING AND WORKING CONDITIONS MEET SPECIFIED
STANDARDS.  THESE PROVISIONS REQUIRE CLOSE SUPERVISION OF THE ADMITTED
ALIENS BY IMMIGRATION AUTHORITIES.  56 STAT. 1759-1768; 57 STAT. 1152
1163. 

FN8  THE PHRASE "THIS TITLE" REFERS ONLY TO THE "FARM LABOR SUPPLY
APPROPRIATION ACT, 1944," SEC. 5(1), 58 STAT. 11, 17. 
..END :

















LAND V. DOLLAR, 330 U.S. 731 


NO. 207.  ARGUED FEBRUARY 11, 12, 1947.  - DECIDED APRIL 7, 1947.  - 81
U.S. APP. D.C. 28, 154 F.2D 307, AFFIRMED. 


1.  A STEAMSHIP COMPANY BEING IN FINANCIAL STRAITS, ITS STOCKHOLDERS
(RESPONDENTS HERE) ENTERED INTO A CONTRACT WITH THE MARITIME
COMMISSION, PURSUANT TO WHICH THEY DELIVERED THEIR COMMON STOCK,
ENDORSED IN BLANK, TO THE COMMISSION, WHICH RELEASED RESPONDENTS FROM
CERTAIN OBLIGATIONS, GRANTED AN OPERATING SUBSIDY AND MADE A LOAN TO
THE COMPANY, AND OBTAINED AN ADDITIONAL LOAN FOR IT FROM THE
RECONSTRUCTION FINANCE CORPORATION.  AFTER THE COMPANY HAD FULLY PAID
ALL ITS INDEBTEDNESS TO THE UNITED STATES, RESPONDENTS DEMANDED THE
RETURN OF THE STOCK, CLAIMING THAT IT HAD BEEN PLEDGED AS COLLATERAL
FOR A DEBT WHICH HAD BEEN PAID.  THE COMMISSION REFUSED AND OFFERED THE
STOCK FOR SALE.  RESPONDENTS SUED THE INDIVIDUAL MEMBERS OF THE
COMMISSION (PETITIONERS HERE) IN A DISTRICT COURT, PRAYING THAT THEY BE
RESTRAINED FROM SELLING THE STOCK AND DIRECTED TO RETURN IT TO
RESPONDENTS.  THE DISTRICT COURT, ON ITS OWN MOTION, DISMISSED THE
COMPLAINT WITH PREJUDICE, HOLDING THAT THE SUIT WAS AGAINST THE UNITED
STATES.  HELD:  THE DISTRICT COURT HAD JURISDICTION TO DETERMINE ITS
JURISDICTION BY PROCEEDING TO A DECISION ON THE MERITS.  PP. 734-739. 

(A)  THE ALLEGATIONS OF THE COMPLAINT, IF PROVED, WOULD ESTABLISH
THAT PETITIONERS ARE UNLAWFULLY WITHHOLDING RESPONDENTS' PROPERTY UNDER
THE CLAIM THAT IT BELONGS TO THE UNITED STATES, SINCE THAT CONCLUSION
WOULD FOLLOW IF EITHER OF RESPONDENTS' CONTENTIONS WERE ESTABLISHED:
(1) THAT THE COMMISSION HAD NO AUTHORITY TO PURCHASE THE STOCK OR
ACQUIRE IT OUTRIGHT; OR (2) THAT, EVEN THOUGH SUCH AUTHORITY EXISTED,
THE CONTRACT RESULTED NOT IN AN OUTRIGHT TRANSFER BUT IN A PLEDGE OF
THE STOCK.  PP. 735-736. 

(B)  IF THE ALLEGATIONS OF THE COMPLAINT ARE TRUE, THE STOCK NEVER
WAS THE PROPERTY OF THE UNITED STATES AND IS BEING WRONGFULLY WITHHELD
BY PETITIONERS, WHO ACTED IN EXCESS OF THEIR AUTHORITY AS PUBLIC
OFFICERS AND ARE ANSWERABLE PERSONALLY FOR THEIR ACTIONS.  UNITED
STATES V. LEE, 106 U.S. 196.  PP. 736-739. 

(C)  WHILE A JUDGMENT ON SUCH A CLAIM WOULD NOT BE RES JUDICATA
AGAINST THE UNITED STATES BECAUSE IT CANNOT BE MADE A PARTY TO THE
SUIT, THE COURTS HAVE JURISDICTION TO RESOLVE THE CONTROVERSY BETWEEN
THOSE WHO CLAIM POSSESSION.  ID.  PP. 736-737. 

2.  PURSUANT TO RULE 25(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE,
THE SOLICITOR GENERAL MOVED TO SUBSTITUTE AS DEFENDANTS THE NEW MEMBERS
OF THE COMMISSION FOR THOSE WHO ARE NO LONGER MEMBERS.  THIS COURT
ADDED THE NEW MEMBERS AS PETITIONERS-DEFENDANTS, AND DISMISSED AS TO A
DECEASED MEMBER, BUT RESERVED DECISION AS TO THE OTHER FORMER MEMBERS. 
HELD:  THESE QUESTIONS NOT HAVING BEEN BRIEFED OR ARGUED HERE AND THERE
BEING A POSSIBILITY THAT THE PRESENT RECORD MAY NOT PRESENT ALL THE
FACTS NECESSARY FOR DISPOSITION OF THE MOTIONS, THE ORDER OF
SUBSTITUTION IS VACATED, IN ORDER THAT THE DISTRICT COURT, ON REMAND OF
THE CASE, MAY PASS ON THE MOTION UNEMBARRASSED BY ANY ACTION HERE.  P.
739. 

LAND, CHAIRMAN, UNITED STATES MARITIME COMMISSION, ET AL. V. DOLLAR ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

A DISTRICT COURT DISMISSED A SUIT AGAINST THE INDIVIDUAL MEMBERS OF
THE MARITIME COMMISSION ON THE GROUND THAT IT WAS A SUIT AGAINST THE
UNITED STATES.  THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA REVERSED.  81 U.S. APP. D.C. 28, 154 F.2D 307.  THIS COURT
GRANTED CERTIORARI.  329 U.S. 700.  AFFIRMED, P. 739. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE PRESENT AND FORMER MEMBERS OF THE UNITED STATES
MARITIME COMMISSION.  RESPONDENTS ARE STOCKHOLDERS OF DOLLAR STEAMSHIP
LINES, INC., LTD. (DOLLAR OF DELAWARE), WHOSE CORPORATE NAME WAS
CHANGED TO AMERICAN PRESIDENT LINES, LTD., SUBSEQUENT TO THE EXECUTION
IN 1938 OF A CONTRACT OUT OF WHICH THE PRESENT LITIGATION ARISES.  BY
1937 DOLLAR OF DELAWARE WAS IN DIFFICULT FINANCIAL STRAITS.  THE
PROBLEMS CONFRONTING IT AND THE VARIOUS STEPS TAKEN TO REMEDY THE
SITUATION NEED NOT BE RECAPITULATED HERE.  FN1  IT IS SUFFICIENT FOR
PURPOSES OF THE VARIOUS QUESTIONS PRESENTED BY THIS CASE TO SAY THAT
THE COMMISSION AND RESPONDENTS ENTERED INTO A CONTRACT IN 1938 BY WHICH
RESPONDENTS DELIVERED THEIR COMMON STOCK IN DOLLAR OF DELAWARE,
ENDORSED IN BLANK, TO THE COMMISSION; AND THE COMMISSION RELEASED SOME
OF RESPONDENTS FROM CERTAIN OBLIGATIONS AND AGREED TO GRANT DOLLAR OF
DELAWARE AN OPERATING SUBSIDY AND TO MAKE A LOAN TO IT AND TO OBTAIN
FOR IT ANOTHER LOAN FROM THE RECONSTRUCTION FINANCE CORPORATION. 

THE SUBSIDY WAS GRANTED AND THE LOANS WERE MADE.  BY 1943 AMERICAN
PRESIDENT LINES, LTD., HAD FULLY PAID ALL INDEBTEDNESS DUE THE UNITED
STATES.  RESPONDENTS THEREUPON DEMANDED RETURN OF THEIR SHARES OF STOCK
FROM THE THEN MEMBERS OF THE COMMISSION, CLAIMING THAT THE SHARES HAD
ONLY BEEN PLEDGED AS COLLATERAL FOR A DEBT WHICH HAD BEEN PAID.  THE
MEMBERS OF THE COMMISSION REFUSED TO SURRENDER THE SHARES, CLAIMING
THAT THEY HAD NOT BEEN PLEDGED UNDER THE 1938 CONTRACT BUT TRANSFERRED
OUTRIGHT.  ACTING ON THAT THEORY THE COMMISSION HAD INDEED OFFERED THE
SHARES FOR SALE AND HAD UNDER CONSIDERATION SUBSTANTIAL OFFERS TO
PURCHASE THEM. 

THEREUPON RESPONDENTS INSTITUTED THE PRESENT SUIT IN THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA, SEE 11 D.C. CODE, SECS. 301, 305,
306, CLAIMING THAT PETITIONERS WERE UNLAWFULLY IN POSSESSION OF
RESPONDENTS' STOCK AND ILLEGALLY WITHHOLDING IT.  THE PRAYER WAS THAT
PETITIONERS BE RESTRAINED FROM SELLING THE SHARES AND BE DIRECTED TO
RETURN THEM TO RESPONDENTS.  RESPONDENTS MOVED FOR A PRELIMINARY
INJUNCTION.  PETITIONERS SUBMITTED AFFIDAVITS OPPOSING THE MOTION. 
AFTER A HEARING, THE DISTRICT COURT ON ITS OWN MOTION DISMISSED THE
COMPLAINT WITH PREJUDICE, HOLDING THAT THE SUIT WAS AGAINST THE UNITED
STATES.  THE COURT OF APPEALS REVERSED.  81 U.S. APP. D.C. 28, 154 F.2D
307.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED.  FN2 

FIRST.  THE FACTS ASSERTED IN THE AFFIDAVITS SUPPORT THE VIEW THAT
THE 1938 CONTRACT CALLED FOR THE OUTRIGHT TRANSFER OF THE SHARES, NOT
FOR THEIR PLEDGE.  BUT WE PUT THE AFFIDAVITS TO ONE SIDE FOR TWO
REASONS.  IN THE FIRST PLACE, THE FUNCTION OF THE AFFIDAVITS WAS TO
OPPOSE THE MOTION FOR A PRELIMINARY INJUNCTION.  THE CASE HAD NOT BEEN
SUBMITTED FOR DECISION ON THE MERITS.  ISSUE, INDEED, HAD NOT YET BEEN
JOINED.  AND THE RULING OF THE DISTRICT COURT, AS WE READ IT, WAS BASED
ON THE PREMISE THAT SINCE THE COMMISSION HAD THE RIGHT TO MAKE THE
CONTRACT, THE SUIT WAS AGAINST THE UNITED STATES.  FN3  HENCE WE DO NOT
THINK THE DISTRICT COURT IN FACT RELIED ON THE AFFIDAVITS IN DISMISSING
THE COMPLAINT.  IN THE SECOND PLACE, ALTHOUGH AS A GENERAL RULE THE
DISTRICT COURT WOULD HAVE AUTHORITY TO CONSIDER QUESTIONS OF
JURISDICTION ON THE BASIS OF AFFIDAVITS AS WELL AS THE PLEADINGS,  FN4
THIS IS THE TYPE OF CASE WHERE THE QUESTION OF JURISDICTION IS
DEPENDENT ON DECISION OF THE MERITS. 

THE ALLEGATIONS OF THE COMPLAINT, IF PROVED, WOULD ESTABLISH THAT
PETITIONERS ARE UNLAWFULLY WITHHOLDING RESPONDENTS' PROPERTY UNDER THE
CLAIM THAT IT BELONGS TO THE UNITED STATES.  THAT CONCLUSION WOULD
FOLLOW IF EITHER OF RESPONDENTS' CONTENTIONS WERE ESTABLISHED:  (1)
THAT THE COMMISSION HAD NO AUTHORITY TO PURCHASE THE SHARES OR ACQUIRE
THEM OUTRIGHT; OR (2) THAT, EVEN THOUGH SUCH AUTHORITY EXISTED, THE
1938 CONTRACT RESULTED NOT IN AN OUTRIGHT TRANSFER BUT IN A PLEDGE OF
THE SHARES. 

IF RESPONDENTS ARE RIGHT IN THESE CONTENTIONS, THEIR CLAIM RESTS ON
THEIR RIGHT UNDER GENERAL LAW TO RECOVER POSSESSION OF SPECIFIC
PROPERTY WRONGFULLY WITHHELD.  AT COMMON LAW THEIR SUIT AS PLEDGORS TO
RECOVER THE PLEDGED PROPERTY ON PAYMENT OF THE DEBT WOULD SOUND IN
TORT.  FN5 

IF VIEWED IN THAT POSTURE, THE CASE IS VERY CLOSE TO UNITED STATES V.
LEE, 106 U.S. 196.  THAT WAS AN ACTION IN EJECTMENT TO RECOVER
POSSESSION OF A TRACT OF LAND.  THE DEFENDANTS WERE MILITARY OFFICERS
WHO, ACTING UNDER ORDERS OF THE PRESIDENT, TOOK POSSESSION OF THE LAND
AND CONVERTED ONE PART INTO A FORT AND ANOTHER INTO A CEMETERY.  FOR
THE LAWFULNESS OF THEIR POSSESSION THEY RELIED ON A TAX SALE OF THE
PROPERTY TO THE UNITED STATES.  ON THE TRIAL IT WAS HELD THAT THE CLAIM
OF THE PLAINTIFFS TO THE LAND WAS VALID AND THAT THE DEFENDANTS WERE
WRONGFULLY IN POSSESSION.  THE COURT AFFIRMED THE JUDGMENT OVER THE
OBJECTION THAT THE SUIT WAS ONE AGAINST THE UNITED STATES.  IT HELD
THAT THE ASSERTION BY OFFICERS OF THE GOVERNMENT OF THEIR AUTHORITY TO
ACT DID NOT FORECLOSE JUDICIAL INQUIRY INTO THE LAWFULNESS OF THEIR
ACTION; THAT A DETERMINATION OF WHETHER THEIR "AUTHORITY IS RIGHTFULLY
ASSUMED IS THE EXERCISE OF JURISDICTION, AND MUST LEAD TO THE DECISION
OF THE MERITS OF THE QUESTION."  P. 219.  IT FURTHER HELD THAT WHILE
SUCH AN ADJUDICATION IS NOT RES JUDICATA AGAINST THE UNITED STATES
BECAUSE IT CANNOT BE MADE A PARTY TO THE SUIT, THE COURTS HAVE
JURISDICTION TO RESOLVE THE CONTROVERSY BETWEEN THOSE WHO CLAIM
POSSESSION.  AND IT CONCLUDED THAT AN AGENT OR OFFICER OF THE UNITED
STATES WHO ACTS BEYOND HIS AUTHORITY IS ANSWERABLE FOR HIS ACTIONS. 
AND SEE PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 619-620; SLOAN
SHIPYARDS CORP. V. UNITED STATES FLEET CORP., 258 U.S. 549, 567. 

WHERE THE RIGHT TO POSSESSION OR ENJOYMENT OF PROPERTY UNDER GENERAL
LAW IS IN ISSUE, AND THE DEFENDANTS CLAIM AS OFFICERS OR AGENTS OF THE
SOVEREIGN, THE RULE OF UNITED STATES V. LEE, SUPRA, HAS BEEN REPEATEDLY
APPROVED.  CUNNINGHAM V. MACON & BRUNSWICK R. CO., 109 U.S. 446, 452;
TINDAL V. WESLEY, 167 U.S. 204; SMITH V. REEVES, 178 U.S. 436, 439;
SCRANTON V. WHEELER, 179 U.S. 141, 152-153; PHILADELPHIA CO. V.
STIMSON, SUPRA, PP. 619-620; GOLTRA V. WEEKS, 271 U.S. 536, 545; ICKES
V. FOX, 300 U.S. 82, 96; GREAT NORTHERN LIFE INS. CO. V. READ, 322 U.S.
47, 50-51.  THAT RULE IS APPLICABLE HERE ALTHOUGH WE ASSUME THAT RECORD
TITLE TO THE SHARES IS IN THE COMMISSION.  IN UNITED STATES V. LEE,
SUPRA, RECORD TITLE OF THE LAND WAS IN THE UNITED STATES AND ITS
OFFICERS WERE IN POSSESSION.  THE FORCE OF THE DECREE IN THAT CASE WAS
TO GRANT POSSESSION TO THE PRIVATE CLAIMANT.  THOUGH THE JUDGMENT WAS
NOT RES JUDICATA AGAINST THE UNITED STATES, P. 222, IT SETTLED AS
BETWEEN THE PARTIES THE CONTROVERSY OVER POSSESSION.  PRECISELY THE
SAME WILL BE TRUE HERE, IF WE ASSUME THE ALLEGATIONS OF THE COMPLAINT
ARE PROVED.  FOR IF WE VIEW THE CASE IN ITS POSTURE BEFORE THE DISTRICT
COURT, PETITIONERS, BEING MEMBERS OF THE COMMISSION, WERE IN POSITION
TO RESTORE POSSESSION OF THE SHARES WHICH THEY UNLAWFULLY HELD. 

WE DO NOT TRACE THE PRINCIPLE OF UNITED STATES V. LEE, SUPRA, IN ITS
VARIOUS RAMIFICATIONS.  CASES ON WHICH PETITIONERS RELY ARE
DISTINGUISHABLE.  THIS IS NOT AN INDIRECT ATTEMPT TO COLLECT A DEBT
FROM THE UNITED STATES BY PREVENTING ACTION OF GOVERNMENT OFFICIALS
WHICH WOULD ALTER OR TERMINATE THE CONTRACTUAL OBLIGATION OF THE UNITED
STATES TO PAY MONEY.  SEE WELLS V. ROPER, 246 U.S. 335; MINE SAFETY CO.
V. FORRESTAL, 326 U.S. 371.  IT IS NOT AN ATTEMPT TO GET SPECIFIC
PERFORMANCE OF A CONTRACT TO DELIVER PROPERTY OF THE UNITED STATES. 
GOLDBERG V. DANIELS, 231 U.S. 218.  IT IS NOT A CASE WHERE THE
SOVEREIGN ADMITTEDLY HAS TITLE TO PROPERTY AND IS SUED BY THOSE WHO
SEEK TO COMPEL A CONVEYANCE OR TO ENJOIN DISPOSITION OF THE PROPERTY,
THE ADVERSE CLAIMS BEING BASED ON AN ALLEGEDLY SUPERIOR EQUITY OR ON
RIGHTS ARISING UNDER ACTS OF CONGRESS.  CUNNINGHAM V. MACON & BRUNSWICK
R. CO., SUPRA; MINNESOTA V. HITCHCOCK, 185 U.S. 373; OREGON V.
HITCHCOCK, 202 U.S. 60; NAGANAB V. HITCHCOCK, 202 U.S. 473; LOUISIANA
V. GARFIELD, 211 U.S. 70; MORRISON V. WORK, 266 U.S. 481.  AND SEE
STANLEY V. SCHWALBY, 162 U.S. 255, 271-272. 

WE SAY THE FOREGOING CASES ARE DISTINGUISHABLE FROM THE PRESENT ONE,
THOUGH AS A MATTER OF LOGIC IT IS NOT EASY TO RECONCILE ALL OF THEM. 
BUT THE RULE IS BASED ON PRACTICAL CONSIDERATIONS REFLECTED IN THE
POLICY WHICH FORBIDS SUITS AGAINST THE SOVEREIGN WITHOUT ITS CONSENT. 
THE "ESSENTIAL NATURE AND EFFECT OF THE PROCEEDING" MAY BE SUCH AS TO
MAKE PLAIN THAT THE JUDGMENT SOUGHT WOULD EXPEND ITSELF ON THE PUBLIC
TREASURY OR DOMAIN, OR INTERFERE WITH THE PUBLIC ADMINISTRATION.  EX
PARTE NEW YORK, 256 U.S. 490, 500, 502.  IF SO, THE SUIT IS ONE AGAINST
THE SOVEREIGN.  MINE SAFETY CO. V. FORRESTAL, SUPRA, P. 374.  BUT
PUBLIC OFFICIALS MAY BECOME TORT-FEASORS BY EXCEEDING THE LIMITS OF
THEIR AUTHORITY.  AND WHERE THEY UNLAWFULLY SEIZE OR HOLD A CITIZEN'S
REALTY OR CHATTELS, RECOVERABLE BY APPROPRIATE ACTION AT LAW OR IN
EQUITY, HE IS NOT RELEGATED TO THE COURT OF CLAIMS TO RECOVER A MONEY
JUDGMENT.  THE DOMINANT INTEREST OF THE SOVEREIGN IS THEN ON THE SIDE
OF THE VICTIM WHO MAY BRING HIS POSSESSORY ACTION TO RECLAIM THAT WHICH
IS WRONGFULLY WITHHELD. 

IT IS IN THE LATTER CATEGORY THAT THE PLEADINGS HAVE CAST THIS CASE. 
THAT IS TO SAY, IF THE ALLEGATIONS OF THE PETITION ARE TRUE, THE SHARES
OF STOCK NEVER WERE PROPERTY OF THE UNITED STATES AND ARE BEING
WRONGFULLY WITHHELD BY PETITIONERS WHO ACTED IN EXCESS OF THEIR
AUTHORITY AS PUBLIC OFFICERS.  IF OWNERSHIP OF THE SHARES IS IN THE
UNITED STATES, SUIT TO RECOVER THEM WOULD OF COURSE BE A SUIT AGAINST
THE UNITED STATES.  BUT IF IT IS DECIDED ON THE MERITS EITHER THAT THE
CONTRACT WAS ILLEGAL OR THAT RESPONDENTS ARE PLEDGORS, THEY ARE
ENTITLED TO POSSESSION OF THE SHARES AS AGAINST PETITIONERS, THOUGH, AS
WE HAVE SAID, THE JUDGMENT WOULD NOT BE RES JUDICATA AS AGAINST THE
UNITED STATES.  SEE UNITED STATES V. LEE, SUPRA, P. 222. 

WE INTIMATE NO OPINION ON THE MERITS OF THE CONTROVERSY.  WE ONLY
HOLD THAT THE DISTRICT COURT HAS JURISDICTION TO DETERMINE ITS
JURISDICTION BY PROCEEDING TO A DECISION ON THE MERITS. 

SECOND.  MOTIONS WERE MADE BY THE SOLICITOR GENERAL TO SUBSTITUTE AS
DEFENDANTS THE NEW MEMBERS OF THE COMMISSION FOR THOSE WHO ARE NO
LONGER MEMBERS.  FN6  WE ADDED THE NEW MEMBERS AS PETITIONERS
DEFENDANTS, AND DISMISSED AS TO A DECEASED MEMBER, BUT RESERVED
DECISION AS TO THE OTHER FORMER MEMBERS.  A MAJORITY OF THOSE JOINING
IN THIS OPINION ARE OF THE VIEW THAT IT IS MORE APPROPRIATE THAT BOTH
MOTIONS BE CONSIDERED BY THE DISTRICT COURT.  THE QUESTIONS HAVE NOT
BEEN BRIEFED OR ARGUED HERE.  MOREOVER, THE PRESENT RECORD MAY NOT
PRESENT ALL THE FACTS NECESSARY FOR DISPOSITION OF THE MOTIONS. 
ACCORDINGLY, WE VACATE THE ORDER OF SUBSTITUTION WHICH WE ENTERED, SO
THAT THE DISTRICT COURT MAY, ON REMAND OF THE CAUSE, PASS ON THE
MOTIONS UNEMBARRASSED BY ANY ACTION HERE. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  THE DETAILS OF THE DIFFICULTIES, AND THE STEPS TAKEN TO REMEDY
THEM ARE CONTAINED IN TWO REPORTS TO CONGRESS BY THE COMMISSION:  (1)
FINANCIAL READJUSTMENTS IN DOLLAR STEAMSHIP LINES, INC., LTD., DATED
FEBRUARY 17, 1938; (2) REORGANIZATION OF AMERICAN PRESIDENT LINES,
LTD., DATED APRIL 10, 1939. 

FN2  ALTHOUGH THE JUDGMENT BELOW WAS NOT A FINAL ONE, WE CONSIDERED
IT APPROPRIATE FOR REVIEW BECAUSE IT INVOLVED AN ISSUE "FUNDAMENTAL TO
THE FURTHER CONDUCT OF THE CASE."  UNITED STATES V. GENERAL MOTORS
CORP., 323 U.S. 373, 377. 

FN3  THE DISTRICT COURT SAID:  "...  I THINK  ...  THAT THE
COMMISSION HAD THE LEGAL RIGHT; AND THEREFORE I THINK IT IS INESCAPABLE
THAT THIS IS A SUIT AGAINST THE UNITED STATES AND THEREFORE THAT THE
COMPLAINT MUST BE DISMISSED  ..." 

FN4  IN PASSING ON A MOTION TO DISMISS BECAUSE THE COMPLAINT FAILS TO
STATE A CAUSE OF ACTION, THE FACTS SET FORTH IN THE COMPLAINT ARE
ASSUMED TO BE TRUE AND AFFIDAVITS AND OTHER EVIDENCE PRODUCED ON
APPLICATION FOR A PRELIMINARY INJUNCTION MAY NOT BE CONSIDERED.  POLK
CO. V. GLOVER, 305 U.S. 5, 9; GIBBS V. BUCK, 307 U.S. 66, 76.  BUT WHEN
A QUESTION OF THE DISTRICT COURT'S JURISDICTION IS RAISED, EITHER BY A
PARTY OR BY THE COURT ON ITS OWN MOTION, JUDICIAL CODE SEC. 37, 28
U.S.C. SEC. 80, FED. R. CIV. P. 12(B), THE COURT MAY INQUIRE, BY
AFFIDAVITS OR OTHERWISE, INTO THE FACTS AS THEY EXIST.  WETMORE V.
RYMER, 169 U.S. 115, 120-121; MCNUTT V. GENERAL MOTORS CORP., 298 U.S.
178, 184 ET SEQ.; KVOS, INC. V. ASSOCIATED PRESS, 299 U.S. 269, 278. 
AS STATED IN GIBBS V. BUCK, SUPRA, PP. 71-72, "AS THERE IS NO STATUTORY
DIRECTION FOR PROCEDURE UPON AN ISSUE OF JURISDICTION, THE MODE OF ITS
DETERMINATION IS LEFT TO THE TRIAL COURT."    FN5  RESTATEMENT OF THE
LAW OF TORTS, SECS. 223, 237; 3 STREET, FOUNDATIONS OF LEGAL LIABILITY
(1906), P. 160. 

FN6  SEE FED. R. CIV. P. 25(D); ALLEN V. REGENTS, 304 U.S. 439, 444
445. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, CONCURRING.    AS I THINK THIS PROCEEDING STATES A
CAUSE OF ACTION AGAINST THE UNITED STATES MARITIME COMMISSION, I DO NOT
AGREE WITH THE MANNER OF DISPOSITION.  NO DAMAGES ARE SOUGHT AGAINST
THE PETITIONERS.  RELIEF IS SOUGHT THAT CAN ONLY BE OBTAINED BY AN
ORDER DIRECTED AGAINST THE COMMISSION. 

A CONTRACT BETWEEN PLAINTIFFS, DOLLAR ET AL., AND THE UNITED STATES
MARITIME COMMISSION, WAS ATTACHED TO THE COMPLAINT AS AN EXHIBIT.  THE
CONTRACT WAS NOT SIGNED BY ANY INDIVIDUAL MEMBER OF THE COMMISSION BUT
BY THE COMMISSION THROUGH ITS DULY AUTHORIZED SPECIAL COUNSEL.  IN THE
COMPLAINT, RESPONDENTS ALLEGED THAT THEY AND THEIR PREDECESSORS IN
INTEREST "CAUSED SAID SHARES OF STOCK OF THE COMPANY TO BE TRANSFERRED
TO THE UNITED STATES MARITIME COMMISSION."  THEY FURTHER ALLEGED THAT
THEY MADE DEMAND UPON THE "MARITIME COMMISSION FOR THE RETURN OF SAID
STOCK IN JULY, 1945.  THIS REQUEST WAS DENIED BY THE MARITIME
COMMISSION IN JULY, 1945."  THE ULTIMATE RESULT SOUGHT BY THE COMPLAINT
WAS THAT THE RESPONDENTS "BE DIRECTED AND ORDERED BY THIS COURT TO
RETURN THE PLAINTIFFS' STOCK, NOW IN THE UNLAWFUL POSSESSION AND
CUSTODY OF THE DEFENDANTS, TO THE PLAINTIFFS, THE LAWFUL OWNERS." 
TAKEN AS A WHOLE, I CANNOT READ THE COMPLAINT OTHERWISE THAN AS
ALLEGING THAT TITLE AND POSSESSION OF THIS STOCK IS NOW IN THE UNITED
STATES MARITIME COMMISSION.  ALTHOUGH PLAINTIFFS ASSERT POSSESSION IN
THE DEFENDANTS, THE OTHER ALLEGATIONS AND THE ATTACHED CONTRACT SHOW
THAT DEFENDANTS HOLD THE STOCK BY VIRTUE OF THEIR OFFICIAL POSITIONS AS
MEMBERS OF THE COMMISSION.  IF THE BASIC ALLEGATIONS WERE PROVEN, THE
COMMISSION WOULD BE SHOWN TO BE IN POSSESSION OF THE STOCK UNDER A
CLAIM OF RIGHT. 

IF THAT IS THE CORRECT INTERPRETATION OF THE COMPLAINT, IT FOLLOWS OF
COURSE THAT THE MARITIME COMMISSION IS AN INDISPENSABLE PARTY TO THIS
PROCEEDING.  SEE COMMONWEALTH TRUST CO. V. SMITH, 266 U.S. 152, 159. 
NO MATTER HOW FAR BEYOND THEIR STATUTORY POWERS THE MEMBERS OF THE
COMMISSION MAY HAVE ACTED IN CONTRACTING WITH THE RESPONDENTS OR HOW
ILLEGAL MAY BE THE RETENTION OF THE CERTIFICATES BY THE COMMISSION
UNDER ITS CLAIM OF OWNERSHIP THROUGH THE CONTRACT, THE TRANSFER TO THE
COMMISSION, AS ALLEGED IN THE PETITION, PUT THE TITLE AND POSSESSION OF
THIS PROPERTY IN THE MARITIME COMMISSION AND NOT IN THE PETITIONERS AS
INDIVIDUALS.  IT MAY BE THAT THE COMMISSION HOLDS THE STOCK WRONGFULLY;
BUT, IF SO, IT CAN ONLY BE RESTORED TO THE RESPONDENTS BY AN ACT OF THE
COMMISSION.  UNDER SUCH CIRCUMSTANCES, CASES LIKE UNITED STATES V. LEE,
106 U.S. 196, ARE INAPPLICABLE.  IN THE LEE CASE, AN ACTION IN
EJECTMENT WAS BROUGHT TO RECOVER POSSESSION OF LAND FROM OFFICERS OF
THE UNITED STATES WHO WERE WRONGFULLY IN POSSESSION OF THE LAND.  THAT
SUIT WAS NOT BROUGHT AGAINST THE UNITED STATES TO COMPEL THE UNITED
STATES TO RETRANSFER TITLE TO THE COMPLAINANTS OR TO QUIET TITLE IN
THOSE WHO CLAIMED AGAINST THE UNITED STATES.  IN UNITED STATES V. LEE,
THE OFFICER OF THE UNITED STATES COULD BE EJECTED FROM THE REAL
PROPERTY INVOLVED WITHOUT LOSS OF TITLE OR RIGHT OF POSSESSION TO THE
UNITED STATES.  THAT IS NOT THE RESULT IN THIS CASE.  A PIECE OF PAPER,
THE STOCK CERTIFICATE, WILL BE TAKEN FROM THE HANDS OF THE MARITIME
COMMISSION AND PLACED IN THE HANDS OF PLAINTIFFS BY A COURT DECREE, IF
PLAINTIFFS ARE SUCCESSFUL.  IF THE DECREE IS TO BE EFFECTIVE, IT WILL
REQUIRE THE INDIVIDUAL DEFENDANTS TO TRANSFER THE CERTIFICATES BY
ENDORSEMENT OF THE NAME OF THE MARITIME COMMISSION OR DELIVERY, IF THE
CERTIFICATE IS STILL IN THE NAME OF THE PLAINTIFFS.  THE SITUATION IS
AS IF THE UNITED STATES HAD BEEN ORDERED BY THE DECREE IN THE LEE CASE
TO CONVEY TITLE TO AND POSSESSION OF THE PROPERTY TO LEE.  PLAINTIFFS
DO NOT HERE SEEK DAMAGES FOR PAST ACTS OF PETITIONERS.  PLAINTIFFS WANT
PROPERTY NOW IN THE POSSESSION OF THE MARITIME COMMISSION AND TO SECURE
THIS RELIEF, PLAINTIFFS, I SHOULD THINK, MUST IMPLEAD THE COMMISSION. 
WHETHER THE MARITIME COMMISSION HOLDS THE PROPERTY BY TITLE
UNCHALLENGED BY THE PLAINTIFFS OR CHALLENGED BY THE PLAINTIFFS CANNOT,
IT SEEMS TO ME, BE DETERMINATIVE AS TO THE NECESSITY OF MAKING THE
COMMISSION A PARTY.  SEE GOLDBERG V. DANIELS, 231 U.S. 218. 

CASES CITED IN THE OPINION OF THE COURT AS FOLLOWING THE RULE OF
UNITED STATES V. LEE ARE NOT SIGNIFICANT HERE.  TWO ARE SIMILAR CASES
OF EJECTMENT.  FN1  OTHER CASES CITED TURN ON LIABILITY OF A SOVEREIGN
TO SUITS.  FN2  STILL OTHERS ARE THOSE WHICH ENJOIN AN OFFICER FROM
PROCEEDING ILLEGALLY.  FN3  IN GOLTRA V. WEEKS, 271 U.S. 536, 539, 549,
THERE WAS A SUIT BY A LESSEE TO ENJOIN OFFICERS OF THE UNITED STATES
FROM TAKING POSSESSION OF BOATS LEASED TO THE PLAINTIFF BY THE
GOVERNMENT AND ALSO TO RETURN THE BOATS ALREADY TAKEN.  THE PRAYER FOR
A RETURN OF THE PROPERTY CONTAINED THE POSSIBILITY OF THE ISSUE HERE
RAISED BUT THIS COURT TREATED THE PROCEEDING AS ONE TO ENJOIN A
THREATENED TRESPASS. 

THE PRESENT SUIT IS FOR THE RETURN TO THE PLAINTIFFS OF PROPERTY HELD
BY THE MARITIME COMMISSION UNDER A CONTRACT WHICH THE DOLLAR INTERESTS
ALLEGE CALLED FOR A RETURN OF THE CERTIFICATES TO THEM ON PAYMENT OF A
DEBT.  SUCH A SUIT, IT SEEMS TO ME, IS AN EFFORT TO GET POSSESSION OF
PROPERTY ACTUALLY IN THE POSSESSION OF THE MARITIME COMMISSION.  THIS
CANNOT BE DONE WITHOUT JOINING THE MARITIME COMMISSION AS A PARTY
DEFENDANT.  SEE GOLDBERG V. DANIELS, 231 U.S. 218; WELLS V. ROPER, 246
U.S. 335; MORRISON V. WORK, 266 U.S. 481, 487; MINE SAFETY CO. V.
FORRESTAL, 326 U.S. 371. 

AS THIS APPEARS TO ME AS A SUIT AGAINST THE COMMISSION, I WOULD
AFFIRM THE JUDGMENT OF THE COURT OF APPEALS, REMANDING THIS CASE TO THE
DISTRICT COURT.  THERE THE QUESTIONS OF THE SUABILITY OF THE COMMISSION
FN4  AND THE EFFECT OF THE ADMINISTRATIVE PROCEDURE ACT OF JUNE 11,
1946, COULD BE CONSIDERED.  THERE THE MERITS OF THE CONTROVERSY COULD
BE DECIDED. 

FN1  TINDAL V. WESLEY, 167 U.S. 204; SCRANTON V. WHEELER, 179 U.S.
141. 

FN2  CUNNINGHAM V. MACON & BRUNSWICK R. CO., 109 U.S. 446; SMITH V.
REEVES, 178 U.S. 436; GREAT NORTHERN INS. CO. V. READ, 322 U.S. 47. 

FN3  ICKES V. FOX, 300 U.S. 82; PHILADELPHIA CO. V. STIMSON, 223 U.S.
605. 

FN4  MERCHANT MARINE ACT, 49 STAT. 1988, SEC. 207, AS AMENDED, 52
STAT. 954, SEC. 2: 

"THE COMMISSION MAY ENTER INTO SUCH CONTRACTS, UPON BEHALF OF THE
UNITED STATES, AND MAY MAKE SUCH DISBURSEMENTS AS MAY, IN ITS
DISCRETION, BE NECESSARY TO CARRY ON THE ACTIVITIES AUTHORIZED BY THIS
ACT, OR TO PROTECT, PRESERVE, OR IMPROVE THE COLLATERAL HELD BY THE
COMMISSION TO SECURE INDEBTEDNESS, IN THE SAME MANNER THAT A PRIVATE
CORPORATION MAY CONTRACT WITHIN THE SCOPE OF THE AUTHORITY CONFERRED BY
ITS CHARTER."  KEIFER & KEIFER V. R.F.C., 306 U.S. 381. 
..END :
























BRUCE'S JUICES V. AMER. CAN CO., 330 U.S. 743 


NO. 27.  REARGUED NOVEMBER 14, 1946.  - DECIDED APRIL 7, 1947.  - 155
FLA. 877, 22 SO.2D 461, AFFIRMED. 


IN A SUIT BY A SELLER AGAINST A BUYER ON NOTES GIVEN FOR THE
ACCUMULATED BALANCE REMAINING ON A RUNNING ACCOUNT OF SALES AND CREDITS
OVER A PERIOD OF YEARS, IT IS NO DEFENSE THAT THE SELLER HAD ENGAGED IN
PRICE DISCRIMINATIONS AGAINST THE BUYER IN VIOLATION OF THE ROBINSON
PATMAN ACT, WHICH PRESCRIBES CRIMINAL PENALTIES AND ENTITLES INJURED
PERSONS TO TRIPLE DAMAGES, BUT DOES NOT EXPRESSLY MAKE THE CONTRACT OF
SALE ILLEGAL OR THE PURCHASE PRICE UNCOLLECTIBLE.  PP. 750-757. 

BRUCE'S JUICES, INC. V. AMERICAN CAN CO. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

THE SUPREME COURT OF FLORIDA AFFIRMED A JUDGMENT ON CERTAIN NOTES FOR
THE UNPAID BALANCE OF THE PURCHASE PRICE OF GOODS.  155 FLA. 877, 22
SO.2D 461.  THIS COURT GRANTED CERTIORARI, 326 U.S. 711, AND AFFIRMED
THE JUDGMENT BELOW BY AN EQUALLY DIVIDED COURT.  327 U.S. 758.  IT
GRANTED A REHEARING AND RESTORED THE CAUSE TO THE DOCKET FOR REARGUMENT
BEFORE A FULL BENCH.  327 U.S. 812.  AFFIRMED, P. 757. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL QUESTION WHICH SURVIVES PROCEEDINGS IN THE FLORIDA STATE
COURTS IS WHETHER RENEWAL NOTES REPRESENTING THE PURCHASE PRICE OF
GOODS SOLD AND DELIVERED ARE UNCOLLECTIBLE IF IT IS FOUND THAT THE
VENDOR VIOLATED THE ROBINSON-PATMAN ACT, 49 STAT. 1526, 1528; 15 U.S.C.
SECS. 13, 13A. 

BRUCE IS A CANNER AND, OVER A PERIOD OF YEARS, BOUGHT ITS CANS
CHIEFLY FROM THE AMERICAN CAN COMPANY.  A DEBT ACCUMULATED WHICH WAS
PUT INTO PROMISSORY NOTES AND ON ONE OR MORE OCCASIONS THEY WERE
RENEWED, REDUCED BY AMOUNTS WHICH HAD BEEN PAID.  UPON EVENTUAL
DEFAULT, TWO SUITS, LATER CONSOLIDATED, WERE BROUGHT ON RENEWAL NOTES
AGGREGATING ABOUT $114,000.  AS TO EACH NOTE, BRUCE PLEADED IN DEFENSE
THAT "THE CONSIDERATION FOR SAID NOTES IS ILLEGAL AND SAID NOTES VOID
AND OF NO FORCE AND EFFECT."  THIS WAS SAID TO BE FOR THE REASON THAT
THE CAN COMPANY HAD SOLD TO OTHERS AT PRICES WHICH DISCRIMINATED
AGAINST BRUCE AND THEREBY VIOLATED THE ROBINSON-PATMAN ACT. 

THE ALLEGED DISCRIMINATION CHIEFLY RELIED UPON CONSISTED OF QUANTITY
DISCOUNTS.  ANNUAL PURCHASES BY BRUCE WERE ABOUT $350,000.  SOME OTHER
CANNERS BOUGHT MUCH LARGER QUANTITIES.  THE CAN COMPANY'S CONTRACT WITH
ALL ITS CUSTOMERS ALLOWED A DISCOUNT OF 1% ON ANNUAL PURCHASES OF
$500,000, AND NOTHING TO THOSE WHOSE PURCHASES WERE LESS THAN THAT.  IT
WAS SO GRADUATED AS TO GIVE A MAXIMUM DISCOUNT OF 5% TO A CUSTOMER
WHOSE PURCHASES WERE $7,000,000 A YEAR.  THE CONSEQUENCE IS THAT
RELATIVELY SMALL PACKERS PAY 5% MORE FOR THEIR CANS THAN THEIR LARGEST
COMPETITORS. 

IT IS CLAIMED THAT THIS ADVANTAGE TO QUANTITY BUYERS RENDERS THE
QUANTITY DISCOUNT PER SE A VIOLATION OF THE ROBINSON-PATMAN ACT.  TO
SUSTAIN THE DEFENSE IN THIS CASE IT WOULD BE NECESSARY TO SO HOLD.  IT
IS NOT DENIED THAT BRUCE GOT THE SAME DISCOUNTS AS OTHER PURCHASERS OF
LIKE QUANTITIES WHEN IT QUALIFIED, AND IN ONE YEAR BRUCE WAS IN THE
$500,000 BRACKET AND RECEIVED THE 1% DISCOUNT.  IT IS NOT CLAIMED THAT
THE CAN COMPANY FAILED TO GIVE DISCOUNTS WHERE EARNED UNDER THIS
UNIFORM CONTRACT, OR THAT DISCOUNTS WERE GIVEN WHERE NOT SO EARNED. 
BRUCE RECEIVED THE SAME DISCOUNTS AS OTHERS WITHIN ITS CLASSIFICATION
AND IT IS NOT QUESTIONED THAT HAD IT BEEN A PURCHASER OF LARGER
QUANTITIES IT WOULD HAVE BEEN ALLOWED THE SAME DISCOUNT AS OTHER
PURCHASERS OF THAT CLASS. 

BEFORE A COURT COULD SUSTAIN THE DEFENSE IN THIS PARTICULAR CASE, IT
WOULD ALSO HAVE TO OVERCOME OTHER DIFFICULTIES OF LAW AND FACT.  THE
ACT DOES NOT PROHIBIT ALL QUANTITY DISCOUNTS BUT EXPRESSLY PERMITS THEM
UNDER CERTAIN CONDITIONS.  IT INDICATES, TOO, THAT THE FEDERAL TRADE
COMMISSION IS THE APPROPRIATE TRIBUNAL TO HEAR IN THE FIRST INSTANCE
THE COMPLICATED ISSUES GROWING OUT OF GRIEVANCES AGAINST A QUANTITY
DISCOUNT PRACTICE OF A SELLER.  49 STAT. 1526; 15 U.S.C. SEC. 13(A). 
QUANTITY DISCOUNTS ARE AMONG THE OLDEST, MOST WIDELY EMPLOYED AND BEST
KNOWN OF DISCOUNT PRACTICES.  THEY ARE COMMON IN RETAIL TRADE,
WHOLESALE TRADE, AND MANUFACTURER-JOBBER RELATIONS.  THEY ARE COMMON IN
REGULATED AS WELL AS UNREGULATED PRICE STRUCTURES.  CONGRESS REFUSED TO
DECLARE FLATLY THAT THEY ARE ILLEGAL.  THEY BECOME ILLEGAL ONLY UNDER
CERTAIN CONDITIONS AND WHEN THEY ARE ILLEGAL IT IS AS MUCH A VIOLATION
TO ACCEPT OR RECEIVE AS TO ALLOW THEM.  BRUCE, IN ONE OF THE YEARS
INCLUDED IN ITS BALANCE OF ACCOUNT, PURCHASED MORE THAN A HALF MILLION
DOLLARS OF CANS ON WHICH IT RECEIVED PRECISELY THE KIND AND AMOUNT OF
DISCOUNT IT NOW ASSERTS TO BE ILLEGAL. 

THE ARGUMENT IS MADE THAT SUCH A REMEDY AS BRUCE SEEKS HERE WOULD
SUPPORT THE ANTI-MONOPOLY POLICY OF CONGRESS.  BUT BRUCE IS NOT
COMPLAINING OF THE HIGH PRICE OF CANS.  BRUCE COMPLAINS OF A LOWER
PRICE FOR CANS TO OTHERS - WHICH WOULD ENABLE COMPETITORS TO PUT THEIR
PRODUCTS ON THE MARKET CHEAPER.  THIS MAY WELL PUT BRUCE TO SOME
DISADVANTAGE, BUT IT DOES NOT FOLLOW THAT CONGRESS WOULD FORBID THE
SAVINGS OF LARGE-SCALE MASS PRODUCTION TO BE PASSED ALONG TO
CONSUMERS.  THE ECONOMIC EFFECTS ON COMPETITION OF SUCH DISCOUNTS ARE
FOR THE TRADE COMMISSION TO JUDGE.  UNTIL THE COMMISSION HAS DETERMINED
THE QUESTION, COURTS ARE NOT GIVEN GUIDANCE AS TO WHAT THE PUBLIC
INTEREST DOES REQUIRE CONCERNING THE HARM OR BENEFIT OF THESE QUANTITY
DISCOUNTS ON THE ULTIMATE PUBLIC INTERESTS SOUGHT TO BE PROTECTED IN
THE ACT.  IT WOULD BE A FARREACHING DECISION TO OUTLAW ALL QUANTITY
DISCOUNTS.  COURTS SHOULD NOT RUSH IN WHERE CONGRESS FEARED TO TREAD. 

BECAUSE OF A MORE FUNDAMENTAL DEFECT IN PETITIONER'S CASE, HOWEVER,
THE COURT DOES NOT FIND IT NECESSARY TO CONSIDER THE EFFECT OF THESE
FEATURES OF THE ACT ON THIS CASE, AS WOULD BE NECESSARY BEFORE A
CONCLUSION COULD BE REACHED THAT PETITIONER SHOULD WIN ON THE MERITS. 
ON THE QUESTIONS OF FACT, CONSIDERABLE EVIDENCE WAS TAKEN AT PRE-TRIAL
HEARINGS AND THE PARTIES ARE IN DISPUTE AS TO WHETHER THE DECISION
THEREON WAS A FINAL JUDGMENT AND, IF SO, AS TO WHETHER THE DEFENSE WAS
NOT ALSO ADJUDICATED TO BE INSUFFICIENT ON THE FACTS.  ALTHOUGH THE
RECORD IS UNSATISFACTORY, WE TAKE IT THAT ALL OF THE SALES EVIDENCED BY
THE NOTES WERE MADE AFTER THE PASSING OF THE ROBINSON-PATMAN ACT.  IT
APPEARS, HOWEVER, THAT THE NOTES ARE NOT IDENTIFIED WITH ANY PARTICULAR
SALE BUT REPRESENT A BALANCE REMAINING ON A RUNNING ACCOUNT OF SALES
AND CREDITS IN MANY OF WHICH A CLAIM OF DISCRIMINATION MIGHT NOT BE
SUPPORTABLE.  THE INDEBTEDNESS THEY SUPPLANT IS CONCEDED TO HAVE BEEN
INCURRED BEFORE FEBRUARY, 1940.  THE PURCHASES COVERED AT LEAST A FOUR
YEAR PERIOD AND INVOLVED TWO TYPES OF CANS.  THE PURCHASE PRICE WHICH
BRUCE ASKS US TO EXCUSE IT FROM PAYING IS NOT IDENTIFIED EITHER AS TO
TYPE OF CAN OR DATE OF TRANSACTION.  BUT PETITIONER CONTENDS THAT IT IS
NOT NECESSARY IN PROVING A DISCRIMINATION TO SHOW THAT OTHERS RECEIVED
A DIFFERENT DISCOUNT ON THE SAME TYPE OF CAN AT APPROXIMATELY THE SAME
TIME "BECAUSE THE SCHEME OF DISCOUNT BY AGGREGATE DOLLAR VOLUME OF
ANNUAL SALES COMPREHENDS ALL CANS BOUGHT WHATEVER THEIR SIZE OR
PRICE."  TO SUSTAIN THIS POSITION WOULD MEAN THAT A SALE TO A
COMPETITOR OF LARGE CANS IN 1940 AT A HIGHER DISCOUNT INVALIDATED A
SALE OF SMALL CANS TO PETITIONER IN 1936 SO THAT PETITIONER NEED NOT
PAY THE CONTRACT PRICE FOR CANS DELIVERED THAT YEAR.  THE CONTENTION IS
SIMPLY THAT IF SOME PURCHASERS GOT LARGER DISCOUNTS ON ANY BILL FOR
CANS THAN PETITIONER GOT, THE BILL AGAINST PETITIONER AND NOTES IN
SETTLEMENT AND EXTENSION OF IT ARE UNCOLLECTIBLE. 

HOWEVER, FOR THE PURPOSES OF THIS DECISION, IN VIEW OF THE UNCERTAIN
NATURE OF THE PROCEEDINGS BELOW, WE ASSUME, BUT DO NOT DECIDE, THAT THE
DEFENSE ON THE FACTS HAS BEEN OR COULD BE ESTABLISHED AS PLEADED.  WE
DO NOT DECIDE WHETHER THE QUANTITY DISCOUNT PLAN, WHATEVER THE FACTS
WERE, VIOLATED THE ROBINSON-PATMAN ACT.  THE SOLE QUESTION WE DECIDE IS
WHETHER NOTES GIVEN FOR PURCHASES ARE UNENFORCEABLE IF THE QUANTITY
DISCOUNT PLAN VIOLATES THE ACT.  PETITIONER SUGGESTS THAT THE COURT MAY
TAKE TWO PATHS TO THE ANSWER, BUT THAT THE ANSWER WILL BE YES.  THE
BROAD GROUND PETITIONER OFFERS IS "THAT A TRANSACTION UNLAWFUL UNDER
THE ROBINSON-PATMAN ACT CONSTITUTES CRIMINAL CONDUCT UPON WHICH NO
MONEY JUDGMENT CAN BE BASED."  PETITIONER ALSO OFFERS A NARROW GROUND
ON WHICH WE CAN YET DECIDE IN ITS FAVOR.  "BUT, IF IT BE ADMITTED THAT
THE BUYER IS ENTITLED TO THE FAIR VALUE OF THE GOODS," PETITIONER SAYS,
RESPONDENT PROBABLY ALREADY HAS BEEN PAID THE FAIR VALUE OF ALL THE
CANS BOUGHT IN 1936-40.  WHEN THAT VALUE HAS BEEN DETERMINED BY THE
TRIAL COURT, IT URGES, IT WILL BE FOUND THAT THE AMOUNT IN NOTES IS
SUBSTANTIALLY EQUIVALENT TO THE AMOUNT OF DISCRIMINATION IN DISCOUNT. 
FN1 

IN EFFECT, PETITIONER IS TREATING THE $114,000 IN NOTES AS
REPRESENTING THE DISCOUNT IT CLAIMS IT SHOULD HAVE GOTTEN ON ITS 1937
42 PURCHASES OF $2,000,000.  THIS ALTERNATIVE ARGUMENT IS THAT
PETITIONER IS LIABLE ONLY FOR THE FAIR VALUE OF ALL THE CANS IT BOUGHT,
AND IN THIS SUIT IT ASKS THE COURTS TO DETERMINE WHAT THAT FAIR VALUE
WAS.  BUT THE FACT IS THAT AS TO THE TRANSACTIONS FOR WHICH PETITIONER
PAID $2,000,000 IT HAS ALREADY PAID THE AGREED PRICE.  THOSE
TRANSACTIONS CANNOT BE IDENTIFIED WITH PARTICULARITY, BUT THEY WERE
PAID FOR AT RESPONDENT'S PRICES.  PETITIONER DID NOT ALLEGE AND DOES
NOT CONTEND THAT THE NOTES REPRESENT SPECIFIC TRANSACTIONS OR THAT THE
SALES FOR WHICH THEY WERE GIVEN COULD BE IDENTIFIED.  MR. BRUCE
CONCEDED IN HIS TESTIMONY THAT THE NOTES SIMPLY REPRESENT A BALANCE OF
AN ACCOUNT WHICH MINGLED THE PRICES OF INDIVIDUAL TRANSACTIONS N2.  IN
ITS BRIEF HERE, PETITIONER'S ONLY RESPONSE TO RESPONDENT'S STATEMENT
THAT "NONE OF THE ORIGINAL NOTES  ...  HAD BEEN TIED TO A PARTICULAR
TRANSACTION" IS THAT "THE RECORD SHOWS THAT ALL OF THE NOTES ARE TIED
TO THE ENTIRE SERIES OF TRANSACTIONS."  THERE MAY BE SUBSTANTIAL
EQUIVALENCE NUMERICALLY IN THE AMOUNT OF THE NOTES AND THE AMOUNT OF
ALLEGED DISCRIMINATION, BUT IT CANNOT BE SAID THAT THE NOTES REPRESENT
THE SEPARATE ITEM OF PRICE DISCRIMINATION.  FN3 

THE ACT PRESCRIBES SANCTIONS, AND IT DOES NOT MAKE UNCOLLECTIBILITY
OF THE PURCHASE PRICE ONE OF THEM.  VIOLATION OF THE ACT IS MADE
CRIMINAL AND UPON CONVICTION A VIOLATOR MAY BE FINED OR IMPRISONED.  49
STAT. 1528, 15 U.S.C. SEC. 13A.  ANY PERSON WHO IS INJURED IN HIS
BUSINESS OR PROPERTY BY REASON OF ANYTHING FORBIDDEN THEREIN MAY SUE
AND RECOVER THREEFOLD THE DAMAGES BY HIM SUSTAINED AND THE COSTS OF
SUIT, INCLUDING A REASONABLE ATTORNEY'S FEE.  38 STAT. 731, 15 U.S.C.
SEC. 15.  THIS TRIPLE DAMAGE PROVISION TO REDRESS PRIVATE INJURY AND
THE CRIMINAL PROCEEDINGS TO VINDICATE THE PUBLIC INTEREST ARE THE ONLY
SANCTIONS PROVIDED BY CONGRESS. 

IT IS CONTENDED THAT WE SHOULD ACT JUDICIALLY TO ADD A SANCTION NOT
PROVIDED BY CONGRESS BY DECLARING THE PURCHASE PRICE OF GOODS
UNCOLLECTIBLE WHERE THE VENDOR HAS VIOLATED THE ACT.  IT MAY BE
ADMITTED AS ARGUED THAT SUCH A SANCTION WOULD BE AN EFFECTIVE
ENFORCEMENT PROVISION.  ADDRESSED TO CONGRESS, THIS ARGUMENT MIGHT BE
PERSUASIVE, BUT THE VERY FACT THAT IT WOULD OBVIOUSLY BE AN EFFECTIVE
SANCTION MAKES IT EVEN MORE SIGNIFICANT THAT THE ACT MADE NO PROVISION
FOR IT; THAT NO COMMITTEE DEALING WITH THE ROBINSON-PATMAN ACT PROPOSED
IT; THAT NOT ONE WORD SUGGESTING ITS CONSIDERATION APPEARS IN THE
DEBATES OF CONGRESS; NO PROPONENT OF THE ACT POINTED OUT IN ITS FAVOR
THAT IT WOULD BE SELF-ENFORCING BECAUSE OF THIS SANCTION; AND NO
OPPONENT POINTED WITH ALARM TO THE CONSEQUENCES OF SUCH A DRASTIC
SANCTION ON THE COMMERCE OF THE NATION.  ON THE CONTRARY, A PROPOSED
PROVISION OF THE ACT, PASSED ONLY BY THE SENATE WHICH LATER RECEDED,
SHOWS THAT CONGRESS GAVE CONSIDERATION TO NO SANCTION MORE EXTREME THAN
TO COMPEL THE REMISSION OF THE EXCESS CHARGED.  SEE S. 3154, SEC. 2(D),
74TH CONG., 1ST SESS., S. REP. NO. 1502, 74TH CONG., 2D SESS., P. 8:
CONFERENCE REP., H. REP. NO. 2951, 74TH CONG., 2D SESS., P. 8. 
CONGRESS DECLINED TO ADOPT THIS RELATIVELY MODERATE PROVISION AND AT NO
TIME DOES IT APPEAR THAT EITHER HOUSE OF CONGRESS WANTED TO GO SO FAR
AS TO PERMIT A BUYER TO GET GOODS FOR NOTHING. 

WHERE THE INTERESTS OF INDIVIDUALS OR PRIVATE GROUPS OR THOSE WHO
BEAR A SPECIAL RELATION TO THE PROHIBITION OF A STATUTE ARE IDENTICAL
WITH THE PUBLIC INTEREST IN HAVING A STATUTE ENFORCED, IT IS NOT
UNCOMMON TO PERMIT THEM TO INVOKE SANCTIONS.  THIS STIMULATES ONE SET
OF PRIVATE INTEREST TO COMBAT TRANSGRESSIONS BY ANOTHER WITHOUT RESORT
TO GOVERNMENTAL ENFORCEMENT AGENCIES.  SUCH REMEDIES HAVE THE ADVANTAGE
OF PUTTING BACK OF SUCH STATUTES A STRONG AND RELIABLE MOTIVE FOR
ENFORCEMENT, WHICH RELIEVES THE GOVERNMENT OF COST OF ENFORCEMENT. 
SUCH PRIVATE REMEDIES LOSE, OF COURSE, WHATEVER ADVANTAGE THERE MAY BE
IN THE PRESUMED DISINTERESTED, PUBLIC INTEREST STANDARDS AND EXPERTNESS
OF A GOVERNMENTAL AGENCY WHICH HAS THE INITIATIVE CONTROL OF
RETRIBUTORY MEASURES.  IT IS CLEAR CONGRESS INTENDED TO USE PRIVATE
SELF-INTEREST AS A MEANS OF ENFORCEMENT AND TO ARM INJURED PERSONS WITH
PRIVATE MEANS TO RETRIBUTION WHEN IT GAVE TO ANY INJURED PARTY A
PRIVATE CAUSE OF ACTION IN WHICH HIS DAMAGES ARE TO BE MADE GOOD
THREEFOLD, WITH COSTS OF SUIT AND REASONABLE ATTORNEY'S FEE. 

BRUCE, IT APPEARS, ALREADY HAS UNDERTAKEN THE TRIPLE DAMAGE SUIT
REMEDY AGAINST THE CAN COMPANY.  BRUCE'S JUICES, INC. V. AMERICAN CAN
CO., NO. 569, CIV. T., S.D. FLA., 1942.  TO INDICATE ITS NEED THAT THE
COURT ESTABLISH THIS ADDITIONAL REMEDY UNAUTHORIZED BY CONGRESS, IT
SEEKS TO DISCREDIT AND BELITTLE BOTH OF THE REMEDIES CONGRESS HAS
EXPRESSLY AUTHORIZED.  IT SAYS, "THE TRIPLE DAMAGE SUIT IS LIKELY TO
PROVE PROTRACTED AND EXPENSIVE; DAMAGES CAUSED BY A DISADVANTAGEOUS
COMPETITIVE POSITION ARE SO SPECULATIVE AS TO BE USUALLY UNPROVABLE. 
NOR CAN THE BUYER RELY FOR PROTECTION UPON THE ACTION OF THE
GOVERNMENT.  THE DEPARTMENT OF JUSTICE OR THE FEDERAL TRADE COMMISSION
MAY NEVER GET AROUND TO THE MATTER."  IT IS A LITTLE DUBIOUS WHETHER
THE SORT OF REMEDY WHICH HAS BEEN IN LITIGATION OVER FOUR YEARS IN THIS
CASE WHICH BRUCE ASKS US TO REVERSE AND SEND BACK AGAIN, IS AN ANTIDOTE
FOR "PROTRACTED AND EXPENSIVE" TRIPLE DAMAGE SUITS.  MOREOVER, IF BRUCE
CAN IN THIS SUIT PROVE THAT THE PRICES RESPONDENT CHARGED WERE ILLEGAL,
AS IT MUST IN ORDER TO WIN, IT CAN DO THE SAME IN A TRIPLE DAMAGE
SUIT.  THE DAMAGES SUSTAINED BECAUSE OF DISCRIMINATION ARE NO MORE
"SPECULATIVE" NOR "UNPROVABLE" IN ONE SUIT THAN IN THE OTHER, AND THEIR
ESTABLISHMENT IN THE STATUTORY FORM OF ACTION CARRIES A BONUS. 

ANNEXATION OF THE PROPOSED DEFENSE TO THE STATUTE BY IMPLICATION
EITHER AS AN INFERENCE OF UNEXPRESSED INTENTION OF CONGRESS OR AS THE
RESULT OF SOME DOCTRINE OF COMMON LAW, WOULD BE JUSTIFIED ONLY IF IT
WOULD BE AT LEAST A RATIONAL, NONDISCRIMINATORY AND APPROPRIATE MEANS
OF MAKING THE POLICY OF THE STATUTE EFFECTIVE.  TO ALLOW A BUYER TO GET
HIS GOODS FOR NOTHING BECAUSE THE SELLER VIOLATED THE ACT BY GIVING
SOMEONE ELSE A GREATER DISCOUNT, DOES NOT MEET THIS TEST. 

IT WOULD SEEM THAT ONE TEST OF THE RATIONALITY AND APPROPRIATENESS OF
SUCH A DEFENSE BECAUSE OF A VIOLATION OF THE ACT WOULD BE THAT THE
REPARATION IT PERMITS SHOULD BE MEASURED AT LEAST ROUGHLY BY THE EXTENT
OF THE INJURY CAUSED BY THE VIOLATION.  THIS, OF COURSE, IS THE
PRINCIPLE OF THE SUIT FOR TRIPLE DAMAGES.  BUT THAT IS NOT THE
PRINCIPLE OF THE DEFENSE HERE URGED.  THE EXTENT OF ITS INDEMNITY IS
NOT MEASURED BY INJURY, AND NOT MEASURED BY THE DEALINGS AFFECTED WITH
THE ALLEGED VIOLATION.  IT IS MEASURED SOLELY BY THE AMOUNT OF CREDIT
THE BUYER OBTAINED FROM THE SELLER.  THE SELLER WOULD LOSE THE AMOUNT
CARRIED IN NOTES OR IN OPEN ACCOUNT.  HAD BRUCE'S DELINQUENCY BEEN
GREATER, SO WOULD ITS GAIN; HAD THERE BEEN NO CREDIT ASKED OR GIVEN THE
BUYER COULD HAVE HAD NO REMEDY BY WAY OF DEFENSE.  THE OBVIOUS
CONSEQUENCE WOULD BE TO DISCOURAGE VENDORS FROM EXTENDING CREDIT WHERE
THE OPERATION OF THIS RATHER DIFFICULT STATUTE IS IN DOUBT.  SINCE THE
DANGER OF LOSS UNDER THE PROPOSED REMEDY IS GREATEST IN THE CASE OF
SMALL BUYERS WHO GET SMALL DISCOUNTS, THE CONSEQUENCE WOULD BE TO DENY
THE SMALL BUYERS CREDIT AND TRUST ONLY THOSE WHO, HAVING THE LARGEST
DISCOUNTS, WOULD BE LEAST LIKELY TO DEFEND ON A CLAIM OF VIOLATION. 
THIS RESULT WOULD HARDLY COMPORT WITH THE ARGUMENT, SO MUCH DWELT UPON
BY PETITIONER, THAT ITS STATUS IS THAT OF A SMALL BUSINESS CONCERN
TRYING TO BATTLE A BUSINESS GIANT.  BUT WE CANNOT SUPPOSE THAT "LITTLE
FELLOWS" ARE ALWAYS BUYERS AND ONLY GIANTS SELL GOODS.  BRUCE ITSELF IS
A SELLER OF CANNED GOODS AND IF ITS TRADE PRACTICES INCLUDE QUANTITY
DISCOUNTS, THIS "LITTLE" CANNER MIGHT BE ON THE OTHER SIDE OF THE SAME
ISSUE TRYING TO COLLECT AGAINST A SMALL WHOLESALER WHO HAD LESS
DISCOUNT THAN A LARGER ONE.  TO DECIDE ISSUES OF LAW ON THE SIZE OF THE
PERSON WHO GETS ADVANTAGE OR CLAIMS DISADVANTAGE IS TREACHEROUS. 

THIS CONSTRUCTION WHICH WOULD MAKE A GRANT OF CREDIT A POINT OF
VULNERABILITY COULD BE AVOIDED ONLY BY HOLDING THAT THE WHOLE PURCHASE
PRICE, NOT MERELY THAT INVOLVED IN THE CREDIT, IS UNCOLLECTIBLE AND
RECOVERABLE EVEN IF VOLUNTARILY PAID.  IN THAT CASE, THE VOLUME OF THE
TRANSACTION, RATHER THAN THE VOLUME OF THE CREDIT EXTENDED, WOULD
MEASURE THE LOSS A SELLER MIGHT SUFFER FROM VIOLATING THE ACT. 

BUT, OF COURSE, IF THE DISCOUNT SYSTEM OF THE CAN COMPANY MAKES ALL
OF THE BRUCE PURCHASES ILLEGAL AND THE PRICE THEREOF RECOVERABLE, ALL
SALES TO OTHERS UNDER THE DISCOUNT SYSTEM MUST BE SIMILARLY TAINTED. 
IT IS HARD TO SEE HOW ANY OF THE CAN COMPANY'S SALES ARE VALID IF THESE
TO BRUCE ARE VOID ON THE THEORY ADVANCED.  IF THIS VIEW IS TAKEN,
CERTAINLY THE REMEDY WOULD SOON END ILLEGAL QUANTITY BUSINESS DISCOUNTS
- BY ENDING THE BUSINESS.  WE DO NOT BELIEVE CONGRESS HAS CONTEMPLATED
SO DEADLY A REMEDY OR HAS LEFT THE WAY OPEN TO US BY JUDICIAL EDICT TO
DISLOCATE BUSINESS AS SUCH A HOLDING WOULD DO.  IT MUST NOT BE
FORGOTTEN THAT SUCH A DECISION WOULD HAVE RETROACTIVE EFFECT FOR
SEVERAL YEARS AND UNSETTLE MANY ACCOUNTS.  WE CANNOT JUSTIFY A JUDICIAL
DECLARATION TO THIS EFFECT. 

BUT IF ONLY A FEW CASES ARE TO BE UNSETTLED - THOSE, SAY, IN
POSITIONS SIMILAR TO BRUCE'S - WHAT BECOMES OF THE POLICY OF
NONDISCRIMINATION?  OTHER CANNERS WHO HAVE PAID CASH FIND THEMSELVES
COMPETING WITH BRUCE WHO IS ABSOLVED FROM PAYING FOR A VERY LARGE PART
OF ITS CANS - SOMETHING LIKE ONE-THIRD OF ITS ANNUAL DOLLAR VOLUME
BEING INVOLVED IN THIS CASE.  IN OTHER WORDS, AS PENALTY FOR
ESTABLISHING A UNIFORM ONE TO FIVE PERCENT DISCOUNT, THE CAN COMPANY
WOULD BE OBLIGED TO GIVE BRUCE SOMETHING OVER A 30% DISCOUNT ON ONE
YEAR, OR ABOUT 5% ON ALL PURCHASES SHOWN BY THE EVIDENCE EVER TO HAVE
BEEN MADE. 

IT IS URGED THAT HOLDINGS UNDER THE SHERMAN ANTITRUST ACT SUPPLY AN
ANALOGY FOR ALLOWING THIS DEFENSE UNDER THE ROBINSON-PATMAN ACT.  THE
FORMER PROVIDES, AMONG OTHER THINGS, THAT EVERY CONTRACT IN RESTRAINT
OF TRADE OR COMMERCE "IS HEREBY DECLARED TO BE ILLEGAL."  26 STAT. 209,
50 STAT. 693, 15 U.S.C. SEC. 1.  THIS COURT HAS HELD THAT WHERE A SUIT
IS BASED UPON AN AGREEMENT TO WHICH BOTH DEFENDANT AND PLAINTIFF ARE
PARTIES, AND WHICH HAS AS ITS OBJECT AND EFFECT ACCOMPLISHMENT OF
ILLEGAL ENDS WHICH WOULD BE CONSUMMATED BY THE JUDGMENT SOUGHT, THE
COURT WILL ENTERTAIN THE DEFENSE THAT THE CONTRACT IN SUIT IS ILLEGAL
UNDER THE EXPRESS PROVISION OF THAT STATUTE.  CONTINENTAL WALL PAPER
CO. V. LOUIS VOIGHT AND SONS CO., 212 U.S. 227.  CF. SOLA ELECTRIC CO.
V. JEFFERSON ELECTRIC CO., 317 U.S. 173.  BUT WHEN THE CONTRACT SUED
UPON IS NOT INTRINSICALLY ILLEGAL, THE COURT HAS REFUSED TO ALLOW
PROPERTY TO BE OBTAINED UNDER A CONTRACT OF SALE WITHOUT ENFORCING THE
DUTY TO PAY FOR IT BECAUSE OF VIOLATIONS OF THE SHERMAN ACT NOT
INHERING IN THE PARTICULAR CONTRACT IN SUIT AND HAS REAFFIRMED THE
"DOCTRINE THAT 'WHERE A STATUTE CREATES A NEW OFFENSE AND DENOUNCES THE
PENALTY, OR GIVES A NEW RIGHT AND DECLARES THE REMEDY, THE PUNISHMENT
OR THE REMEDY CAN BE ONLY THAT WHICH THE STATUTE PRESCRIBES.'"  D.R.
WILDER MFG. CO. V. CORN PRODUCTS REFINING CO., 236 U.S. 165, 174-175;
CONNOLLY V. UNION SEWER PIPE CO., 184 U.S. 540. 

MOREOVER, NO SINGLE SALE CAN VIOLATE THE ROBINSON-PATMAN ACT.  AT
LEAST TWO TRANSACTIONS MUST TAKE PLACE IN ORDER TO CONSTITUTE A
DISCRIMINATION.  THUS, A CONTRACT MAY BE MADE TODAY WHICH HAS NO LEGAL
DEFECT UNDER THE ROBINSON-PATMAN ACT.  A WEEK LATER, ANOTHER SALE MAY
BE MADE AT A DIFFERENT PRICE OR AT A DIFFERENT DISCOUNT, AND THE LATTER
TAKEN INTO CONSIDERATION WITH THE FORMER MAY ESTABLISH A
DISCRIMINATION.  WHETHER A SALE WOULD BE RENDERED VOID ONLY BECAUSE OF
SIMULTANEOUS DISCRIMINATION OR PREEXISTING ONES, OR WHETHER A CONTRACT
VALID WHEN MADE BECOMES VOID BY REASON OF LATER TRANSACTIONS, AND, IF
SO, HOW MUCH LATER, ARE QUESTIONS WE NEED NOT DECIDE NOW.  IT IS PLAIN
THAT THE VIOLATION, IF THERE WAS ONE, IS NOT INHERENT IN THE CONTRACT
SUED UPON, WHETHER IT BE THE NOTES OR THE SALE OF THE GOODS, BUT CAN
ONLY BE FOUND IN DIFFERENT TRANSACTIONS WHICH A PARTY TO THE LITIGATION
HAD WITH THIRD PERSONS WHO ARE NOT PARTIES.  NO SUCH DEFENSE HAS BEEN
APPROVED UNDER THE SHERMAN ACT, AND, FURTHERMORE, THESE CHARACTERISTICS
SHOW THAT THE ENTIRE BASIS FOR JUDGING UNDER THE TWO ACTS IS DIFFERENT
AND THAT THE CASE LAW AS TO THE SHERMAN ACT DOES NOT FIT THE ROBINSON
PATMAN ACT. 

NONE THE LESS, WE ARE URGED TO SUPPLY JUDICIALLY THE SANCTION OF
INVALIDATING OBLIGATIONS TO PAY FOR GOODS SOLD AND DELIVERED BECAUSE,
IT IS SAID, OTHERWISE THE COURTS BECOME PARTIES TO THE ENFORCEMENT OF A
DISCRIMINATION.  IF, IN ORDER TO PROVE HIS OWN CASE, A PLAINTIFF PROVES
HIS VIOLATION OF LAW, THEN NO COURT WILL AID THE PLAINTIFF TO RECOVER. 
FN4  HERE, HOWEVER, WHAT THE PLAINTIFF MUST SHOW IS THE NOTES WHICH
IMPORT CONSIDERATION.  IF CONSIDERATION IS DENIED, HE CAN PROVE THAT
CANS WERE SOLD AND DELIVERED AT A STATED PRICE.  THAT IS NO VIOLATION
OF LAW.  IT IS ONLY WHEN THE COURT GOES OUTSIDE OF THE DEALINGS BETWEEN
PLAINTIFF AND DEFENDANT AND IT IS PROVED THAT THE SAME KIND OF CANS
WERE SOLD TO OTHERS AT DIFFERENT PRICES WITHIN A RELEVANT PERIOD OF
TIME, AMOUNTING TO A DISCRIMINATION - A FACT UNNECESSARY TO SUSTAIN THE
PLAINTIFF'S CAUSE OF ACTION - THAT THE BASIS OF THE DEFENSE ASSERTED
HERE APPEARS.  THE COURT DOES NOT GIVE ITS APPROVAL TO TRANSACTIONS
BETWEEN ONE OF THE LITIGANTS AND A THIRD PARTY JUST BECAUSE IT HOLDS
THEM IRRELEVANT IN THIS LITIGATION. 

THE DEFENDANT'S CLAIM TO BE FREED OF THE OBLIGATION TO PAY HIS
PROMISSORY NOTE BECAUSE THE PAYEE, AS VENDOR OF CANS, MADE SALES TO
OTHERS THAT WHEN COMPARED WITH SALES TO ITSELF MAY BE HELD UNLAWFULLY
DISCRIMINATORY, CANNOT BE SUPPORTED AS RESTING ON ANY CONGRESSIONAL
WORD OR POLICY.  NOT ONLY WAS THIS REMEDY NOT NAMED BY CONGRESS, BUT IT
WOULD BE SURPRISING IF IT HAD BEEN, IN VIEW OF THE REMEDIES CONGRESS
DID GIVE.  WE HAVE ASSUMED FOR THE PURPOSES OF THIS CASE THAT
PETITIONER COULD ESTABLISH THAT THE PRICES RESPONDENT CHARGED WERE
DISCRIMINATORY SO THAT THEY VIOLATED THE ACT.  BUT IF PETITIONER CAN
SHOW THAT, CLEARLY IT WOULD BE ENTITLED TO RECOVER IN A TRIPLE DAMAGE
SUIT SUPPORTED BY THE SAME EVIDENCE.  FOR DESPITE PETITIONER'S PLAINT
ON THE DIFFICULTY OF PROVING DAMAGES, IT WOULD ESTABLISH ITS RIGHT TO
RECOVER THREE TIMES THE DISCRIMINATORY DIFFERENCE WITHOUT PROVING MORE
THAN THE ILLEGALITY OF THE PRICES.  IF THE PRICES ARE ILLEGALLY
DISCRIMINATORY, PETITIONER HAS BEEN DAMAGED, IN THE ABSENCE OF
EXTRAORDINARY CIRCUMSTANCES, AT LEAST IN THE AMOUNT OF THAT
DISCRIMINATION.  NO REASON SUGGESTS ITSELF WHY CONGRESS SHOULD HAVE
INTENDED A REMEDY BY WHICH THE VICTIM OF DISCRIMINATION COULD RECOVER
BY DEFENSE ONLY ONE-THIRD OF WHAT HE COULD RECOVER, ON THE SAME PROOF,
BY OFFENSE.  THE INDUCEMENT OF THRICE THE DAMAGES SUFFERED MAY BRING
THE SUFFERER TO AID IN ENFORCEMENT OF THE STATUTE.  TO ASSURE HIS HELP,
HOWEVER, IT WOULD HARDLY BE THOUGHT APPROPRIATE TO OFFER HIM THE CHOICE
OF TAKING ONLY ONE-THIRD THAT AMOUNT.  SINCE THE REMEDY EMBODIED IN
PETITIONER'S SECOND THEORY WOULD BE BUT A WEAK ONE-THIRD SHADOW OF THE
ONE CONGRESS EXPRESSLY GAVE, WE CANNOT SEE THE NEED FOR JUDICIAL
REDUPLICATION IN MINIATURE.  WE HOLD THAT FEDERAL LAW DOES NOT SUPPORT
THE DEFENSE ALLEGED AND THE JUDGMENT OF THE FLORIDA SUPREME COURT IS
AFFIRMED. 

FN1  ON PETITIONER'S FIRST THEORY, CLEARLY NO RECOVERY ON QUANTUM
MERUIT COULD BE HAD.  THE GENERAL RULE IS THAT A TRANSACTION WHOLLY
ILLEGAL WILL NOT SUPPORT SUCH A SUIT.  SEE WILLISTON, CONTRACTS (REV.
ED., 1938) SEC. 1786A; RESTATEMENT, CONTRACTS, SEC. 598, COMMENT C. AND
ON BRUCE'S SECOND THEORY, BECAUSE OF THE LENIENCY WITH WHICH RESPONDENT
EXTENDED CREDIT, IT WOULD BE IMPOSSIBLE FOR RESPONDENT TO SHOW WHICH
CANS THE NOTES REPRESENT AND IT WOULD OF COURSE BE UNABLE TO ESTABLISH
THEIR FAIR VALUE.  IF WE HOLD THE NOTES UNCOLLECTIBLE, THEREFORE,
RESPONDENT COULD NOT RECOVER ON QUANTUM MERUIT, AND BRUCE WOULD GET A
WINDFALL. 

FN2  HIS TESTIMONY ON THIS POINT FOLLOWS: 

"Q.  MR. BRUCE, DO THE NOTES EVIDENCE THE PURCHASE PRICE OF ANY
PARTICULAR SIZE OF CANS YOU PURCHASED FROM THE AMERICAN CAN CO.? 

A. THERE IS NOTHING ON THE FACE OF THE NOTES THAT SHOWS WHAT SIZE
THEY WERE. 

Q. DURING THAT PERIOD YOU PURCHASED A CERTAIN SIZE CAN? 

A. IT WAS PURCHASED DURING A CERTAIN PERIOD. 

Q. DID YOU RUN A SEPARATE ACCOUNT ON THE GROCERY CAN AND ON THE SOFT
DRINK CAN, OR SMALL AND LARGE? 

A. NO SIR. 

Q. THE NOTES THEMSELVES SIMPLY REPRESENT THAT ACCOUNT, IRRESPECTIVE
OF THE SIZE OF THE CANS? 

A. YES SIR, THE BLANKET WAY. 

Q. IN A BLANKET WAY.  IN OTHER WORDS THERE WAS NO DISTINCTION MADE IN
YOUR ACCOUNT BETWEEN THE LARGE AND SMALL CANS, I MEAN IN THE
INDEBTEDNESS? 

A. NOT WHILE THE NOTES WERE ACCRUING. 

Q. IN OTHER WORDS THE NOTES IN QUESTION ARE FOR THE PURCHASE PRICE OF
BOTH LARGE AND SMALL CANS? 

A. THAT IS RIGHT." 

FN3  IF THE NOTES ARE CONSIDERED ALTERNATIVELY AS REPRESENTING
RESPONDENT'S PRICE DUE ON THE LATEST PURCHASES TO THAT AMOUNT IN LATE
1939 AND EARLY 1940, PETITIONER, ON ITS THEORY, WOULD BE ENTITLED TO BE
EXCUSED PAYMENT OF ONLY ABOUT 5% OF THE $114,000, BECAUSE IT IS
DEFENDING ON THE GROUND THAT IT OUGHT NOT TO PAY THE ALLEGEDLY
DISCRIMINATORY PART OF THE PRICE.  BUT EVEN FOR THIS LIMITED PURPOSE,
IT CANNOT BE ESTABLISHED WHAT CANS THE $114,000 REPRESENTS, SO THE
COURT COULD NOT DETERMINE THEIR FAIR VALUE. 

IN PENN-ALLEN CEMENT CO. V. PHILLIPS & SOUTHERLAND, 182 N.C. 437, 109
S.E. 257, THE SPECIFIC SALES WERE IDENTIFIED AND THE PRICE UNPAID.  THE
COURT THERE HELD ONLY THAT THE BUYER SHOULD BE EXCUSED PAYMENT OF THE
DISCRIMINATORY PART OF THE CONTRACT PRICE.  BUT THE OPINION WAS GIVEN
AFTER THE COURT HAD DECIDED THAT THE APPEAL WAS PREMATURELY TAKEN. 

THE DEFENDANT HAD COUNTERCLAIMED FOR TREBLE DAMAGES, COMPUTED ON THE
BASIS OF THE ALLEGED OVERCHARGE.  THE PLAINTIFF URGED THAT TREBLE
DAMAGES COULD NOT BE RECOVERED IN AN ACTION FOR THE PURCHASE PRICE BUT
THAT THE DEFENDANT MUST PAY FIRST, AND THEN SUE ON THAT CLAIM.  THE
COURT SAID SIMPLY, "THIS MATTER ALSO HAS NOT BEEN PASSED UPON BY THE
COURT BELOW, AND THERE IS NOTHING FOR US TO CONSIDER."  182 N.C. AT
441, 109 S.E. AT 259.  BUT IF THE COURT WAS RIGHT IN HOLDING THAT
PLAINTIFF COULD NOT RECOVER THE OVERCHARGE, IT WOULD NECESSARILY FOLLOW
THAT THE COUNTERCLAIM SHOULD HAVE BEEN DISMISSED.  FOR WITHOUT PAYING
THE OVERCHARGE, THE DEFENDANT WOULD HAVE HAD NO BASIS ON WHICH TO REST
ITS CLAIM THAT IT HAD BEEN DAMAGED IN THAT AMOUNT AND THEREFORE
ENTITLED TO TREBLE COMPENSATION.    FN4  IN MCMULLEN V. HOFFMAN, 174
U.S. 639, FOR EXAMPLE, THE COURT REFUSED TO ENFORCE A PARTNERSHIP
CONTRACT WHICH WAS BASED ON AN ILLEGAL AND FRAUDULENT AGREEMENT TO
SUBMIT COLLUSIVE BIDS FOR PUBLIC CONSTRUCTION.  THE PLAINTIFF ARGUED
THAT THE PARTNERSHIP CONTRACT ITSELF DID NOT DISCLOSE ANY ILLEGALITY,
BUT EVEN THAT WAS QUESTIONABLE.  THE COURT, MOREOVER, HELD THAT THE
AGREEMENT TO BE PARTNERS COULD NOT BE SEPARATED FROM THE GENERAL
COLLUSIVE AGREEMENT WHICH GAVE RISE TO IT AGREEMENTS WITH THIRD
PERSONS, NOT PARTIES TO THE SUIT, HOWEVER, WERE NOT RELIED UPON BY
COURT OR LITIGANTS. 

MR. JUSTICE MURPHY, DISSENTING. 

THE ISSUE IN THIS CASE IS WHETHER SELLERS OF GOODS SHOULD BE ALLOWED
TO USE THE COURTS TO COLLECT PRICE DIFFERENTIALS WHICH HAVE BEEN MADE
ILLEGAL BY CONGRESS IN THE ROBINSON-PATMAN ACT.  THE COURT APPROACHES
BUT NEVER QUITE MEETS THAT ISSUE.  BUT THE UNMISTAKABLE EFFECT OF THE
COURT'S DECISION IS TO PERMIT THE RECOVERY OF DISCRIMINATORY PRICES
DESPITE THE PLAIN LANGUAGE AND POLICY OF THE ACT AND DESPITE THE
LESSENING OF COMPETITION THAT MIGHT THEREBY RESULT.  I REMAIN
UNCONVINCED, HOWEVER, THAT SUCH A RESULT IS CONSISTENT WITH THE HIGH
IDEALS OF OUR JUDICIAL SYSTEM OR THAT IT IS MADE NECESSARY BY ANY RULE
OF LAW OR POLICY. 

TO ANY SALE WHICH DISCRIMINATES, TO HIS KNOWLEDGE, AGAINST COMPETITORS
OF A PURCHASER BY GRANTING TO THAT PURCHASER "ANY DISCOUNT, REBATE,
ALLOWANCE, OR ADVERTISING SERVICE CHARGE" NOT AVAILABLE TO THE
COMPETITORS IN RESPECT OF A SALE OF GOODS OF LIKE GRADE, QUALITY AND
QUANTITY.  15 U.S.C. SEC. 13A.  SECTION 2(A) OF THE CLAYTON ACT, AS
AMENDED BY THE ROBINSON-PATMAN ACT, MAKES IT UNLAWFUL FOR ANY PERSON
"TO DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES
OF LIKE GRADE AND QUALITY" WHERE THE RESULT IS TO LESSEN COMPETITION OR
TO TEND TO CREATE A MONOPOLY.  15 U.S.C. SEC. 13(A).  IT IS IN LIGHT OF
THESE STATUTORY PROVISIONS THAT WE MUST EXAMINE THE OPINION OF THE
COURT. 

1.  THE COURT PROCEEDS ON THE BASIC ASSUMPTION, UNSUPPORTED BY THE
RECORD OR BY PETITIONER'S CONTENTIONS, THAT THE PETITIONER IS SEEKING
TO AVOID ALL LIABILITY FOR THE CANS SOLD TO IT BY THE RESPONDENT.  NO
SUCH ASSUMPTION IS JUSTIFIED.  PETITIONER'S BRIEF, IT IS TRUE, SUGGESTS
TWO ALTERNATIVE THEORIES IN SUPPORT OF ITS POSITION:  (1) A TRANSACTION
UNLAWFUL UNDER THE ROBINSON-PATMAN ACT CONSTITUTES CRIMINAL ACTION UPON
WHICH NO MONEY JUDGMENT CAN BE BASED; (2) DISCRIMINATORY PRICES OVER
AND ABOVE THE FAIR VALUE OF THE GOODS CANNOT BE COLLECTED BY THE
SELLER.  BUT PETITIONER DOES NOT PURSUE THE FIRST ALTERNATIVE, POINTING
OUT THAT ONLY THE SECOND AND NARROWER ALTERNATIVE IS PRESENTED BY THE
RECORD.  THUS THE ONLY CONTENTION REALLY BEFORE US IS THAT PROMISSORY
NOTES CANNOT BE COLLECTED BY LEGAL ACTION TO THE EXTENT THAT THEY
REPRESENT A PRICE DIFFERENTIAL OUTLAWED BY CONGRESS.  AS PETITIONER
NOTES, THIS CONTENTION "DOES NOT REQUIRE THE COURT TO DECIDE THAT THE
ENTIRE TRANSACTION IS SO TAINTED WITH ILLEGALITY THAT THE SELLER CANNOT
COLLECT EVEN THE FAIR VALUE OF THE GOODS, THUS GIVING THE BUYER A
WINDFALL."  IF THE PETITIONER WERE TO PREVAIL IN THIS CASE AND THE
PROMISSORY NOTES WERE TO BE DECLARED UNENFORCEABLE, RESPONDENT WOULD
STILL BE FREE TO RECOVER ON A QUANTUM MERUIT BASIS IF IT HAS NOT
ALREADY SO RECOVERED.  SEE PENN-ALLEN CEMENT CO. V. PHILLIPS &
SOUTHERLAND, 182 N.C. 437, 109 S.E. 257. 

MOREOVER, THERE IS A STRONG INDICATION THAT PETITIONER ALREADY MAY
HAVE PAID THE RESPONDENT THE FAIR VALUE OF THE CANS.  SINCE THE PASSAGE
OF THE ROBINSON-PATMAN ACT, PETITIONER HAS HAD A CONTINUING ACCOUNT
WITH THE RESPONDENT; UNDER THAT ACCOUNT, PETITIONER PAID RESPONDENT
MORE THAN $2,000,000 FOR CANS DURING THE PERIOD FROM 1937 TO 1942. 
WHEN THIS SUIT WAS INSTITUTED, PETITIONER OWED A BALANCE OF $114,000 ON
THIS ACCOUNT, REPRESENTED BY THE PROMISSORY NOTES IN ISSUE HERE.  TO
DENY ENFORCEABILITY TO THOSE NOTES MIGHT THUS AFFECT ONLY THE
DISCRIMINATORY PRICE DIFFERENTIAL, WHICH THE COURT ASSUMES VIOLATED THE
ROBINSON-PATMAN ACT. 

IT ALSO APPEARS THAT THE QUANTITY DISCOUNTS IN ISSUE WERE BASED UPON
THE AGGREGATE DOLLAR VALUE OF ANNUAL SALES RATHER THAN UPON INDIVIDUAL
TRANSACTIONS.  THE DISCRIMINATORY DIFFERENTIALS HAD A LIKE BASIS. 
HENCE IT IS ENOUGH IF PETITIONER CAN PROVE THAT THE $114,000 IN NOTES
REPRESENTS AN ILLEGAL DIFFERENTIAL FROM THIS OVER-ALL STANDPOINT. 

THE COURT STATES, HOWEVER, THAT THE TRANSACTIONS REPRESENTED BY THE
$114,000 CANNOT BE IDENTIFIED AND THAT THIS FIGURE CANNOT BE SAID TO
REFLECT THE SEPARATE ITEM OF PRICE DISCRIMINATION.  BUT SUCH SENTIMENTS
ARE NECESSARILY PREMATURE IN THE PRESENT POSTURE OF THE CASE;
PETITIONER HAS NOT YET HAD A FULL OPPORTUNITY TO PRESENT ALL ITS
EVIDENCE OR TO TRY TO CONNECT THE NOTES WITH A DISCRIMINATORY
DIFFERENTIAL.  PETITIONER CONCEDEDLY HAS THE BURDEN OF PROVING THAT THE
$114,000 IN NOTES DOES REPRESENT THE DISCRIMINATORY PART OF THE
PURCHASE PRICE, WHETHER IN RELATION TO SPECIFIC TRANSACTIONS OR TO THE
AGGREGATE DOLLAR VOLUME OF ANNUAL SALES.  IF IT CANNOT SO PROVE, ITS
CASE COLLAPSES.  THE IMPORTANT AND THE ONLY POINT NOW IS THAT
PETITIONER SHOULD BE GIVEN THE CHANCE TO PROVE THIS DEFENSE.  WE SHOULD
NOT SHUT THE COURT'S DOOR IN PETITIONER'S FACE BEFORE IT HAS HAD THAT
CHANCE.  NOR SHOULD WE PREJUDICE THAT DEFENSE BY HOLDING OR INTIMATING
THAT PROOF IS IMPOSSIBLE.  CERTAINLY THE RIGHT TO OFFER AND PROVE A
DEFENSE IS NOT TO BE DENIED BECAUSE A COURT THINKS THAT THE PURPORTED
DEFENSE HAS NOT YET BEEN PROVED.  IT IS ONE THING TO RAISE A DEFENSE;
IT IS QUITE ANOTHER TO PROVE IT.  SINCE WE ARE CONCERNED HERE ONLY WITH
THE FIRST PROPOSITION, IT IS BESIDE THE POINT WHETHER THE DEFENSE HAS
BEEN OR CAN BE PROVED. 

WE MAY THUS DISMISS AS UNWARRANTED THE COURT'S FEAR THAT PETITIONER
IS GOING TO GET SOMETHING FOR NOTHING IF ITS CONTENTION IS SUSTAINED. 
IT IS PLEADING ONLY FOR THE RIGHT TO DEFEND AGAINST THE COLLECTION OF
THAT WHICH CONGRESS HAS DECLARED ILLEGAL. 

2.  EQUALLY IRRELEVANT IS THE COURT'S INQUIRY INTO WHETHER CONGRESS
"WANTED TO GO SO FAR AS TO PERMIT A BUYER TO GET GOODS FOR NOTHING"
WHERE THE ROBINSON-PATMAN ACT HAS BEEN VIOLATED.  IN THE CASE BEFORE
US, THE ONLY RELEVANT INQUIRY IS WHETHER THE ROBINSON-PATMAN ACT WAS
DESIGNED TO ALLOW SELLERS TO RECOVER ILLEGAL PRICE DIFFERENTIALS
THROUGH COURT ACTION.  A DETERMINATION THAT THE ACT PRECLUDES SUCH A
RECOVERY DOES NOT INVOLVE A FINDING THAT THE FRAMERS OF THE ACT DESIRED
THESE SELLERS TO FORFEIT ALL THE VALUE OF THE PRODUCTS ON WHICH THEY
PLACED AN ILLEGAL PRICE DIFFERENTIAL.  IT INVOLVES SIMPLY A FINDING
THAT THE LANGUAGE AND POLICY OF THE ACT FROWN UPON THE USE OF THE
COURTS TO EFFECTUATE WHAT CONGRESS CLEARLY MADE ILLEGAL. 

3.  THE COURT THINKS IT SIGNIFICANT THAT THE ROBINSON-PATMAN ACT
MAKES NO PROVISION FOR A BUYER INTERPOSING THE VENDOR'S VIOLATION OF
THE ACT AS A DEFENSE TO A SUIT BY THE VENDOR.  IT IS SAID THAT THE
TRIPLE DAMAGE ACTIONS AND THE CRIMINAL PROCEEDINGS ARE THE EXCLUSIVE
SANCTIONS PROVIDED BY CONGRESS FOR THE ENFORCEMENT OF THE ACT. 

THIS OVERLOOKS THE FACT, HOWEVER, THAT A SPECIFIC STATUTORY PROVISION
IS UNNECESSARY TO MAKE AN ILLEGAL CONTRACT UNENFORCEABLE IN THE
COURTS.  WHERE A CONTRACT IS OUTLAWED BY STATUTE OR IS OTHERWISE
CONTRARY TO PUBLIC POLICY, THE ILLEGALITY MAY BE SET UP AS A DEFENSE TO
A SUIT FOR ENFORCEMENT DESPITE THE ABSENCE OF A LEGISLATIVE RECOGNITION
OF THAT DEFENSE.  OTHERWISE THE COURTS WOULD BECOME PARTIES TO THE
ILLEGALITY BY SANCTIONING THE ENFORCEMENT OF THE UNLAWFUL AGREEMENTS. 
MCMULLEN V. HOFFMAN, 174 U.S. 639, 669-670.  THIS PRINCIPLE HAS BEEN
APPLIED MANY TIMES BY THIS COURT.  AT AN EARLY DATE IT WAS RECOGNIZED
THAT, DESPITE THE ABSENCE OF A PROVISION IN THE SHERMAN ACT AUTHORIZING
A DEFENSE OF ILLEGALITY IN A PRIVATE SUIT ON A CONTRACT, SUCH A DEFENSE
MIGHT BE USED, THAT "ANY ONE SUED UPON A CONTRACT MAY SET UP AS A
DEFENCE THAT IT IS A VIOLATION OF THE ACT OF CONGRESS, AND IF FOUND TO
BE SO, THAT FACT WILL CONSTITUTE A GOOD DEFENCE TO THE ACTION."  BEMENT
V. NATIONAL HARROW CO., 186 U.S. 70, 88.  CONTINENTAL WALL PAPER CO. V.
VOIGHT & SONS CO., 212 U.S. 227.  SIMILARLY, WITHOUT SPECIFIC STATUTORY
PERMISSION, PRIVATE LITIGANTS HAVE BEEN ALLOWED TO INVOKE THE POLICY OF
THE ANTITRUST LAWS SO AS TO LIMIT THE SCOPE OF PATENT RIGHTS.  MERCOID
CORP. V. MID-CONTINENT CO., 320 U.S. 661; SOLA ELECTRIC CO. V.
JEFFERSON ELECTRIC CO., 317 U.S. 173; B.B. CHEMICAL CO. V. ELLIS, 314
U.S. 495; MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488; KATZINGER CO.
V. CHICAGO MFG. CO., 329 U.S. 394; MACGREGOR V. WESTINGHOUSE CO., 329
U.S. 402. 

AND SO WHEN A CONTRACT OR PROMISSORY NOTE IS TAINTED WITH A VIOLATION
OF THE ROBINSON-PATMAN ACT, ITS ENFORCEMENT SHOULD BE REFUSED BY A
COURT, AT LEAST TO THE EXTENT OF THE ILLEGALITY INVOLVED.  THE FAILURE
OF CONGRESS TO MENTION SUCH A SANCTION SLIPS INTO INSIGNIFICANCE IN THE
LIGHT OF PRECEDENTS IN ANALOGOUS SITUATIONS. 

4.  THE COURT HOLDS, HOWEVER, THAT THE ROBINSON-PATMAN ACT
INVALIDATES DISCRIMINATION RATHER THAN CONTRACTS OF SALE AT DISCOUNT
AND THAT THE ANALOGY OF DENYING THE ENFORCEMENT OF CONTRACTS VIOLATIVE
OF OTHER ANTITRUST LAWS IS IMPERFECT. 

BUT SUCH A HOLDING MISCONCEIVES THE VERY NATURE OF THE ROBINSON
PATMAN ACT AND THE EVILS AT WHICH IT WAS DIRECTED.  NO ONE CONTENDS
THAT THE ACT MAKES ILLEGAL ALL CONTRACTS OF SALE AT A DISCOUNT.  NOR
DOES ANY ONE DENY THAT AN ILLEGAL DISCRIMINATION BECOMES APPARENT ONLY
AFTER THERE HAVE BEEN TWO OR MORE SALES.  AS THE COURT STATES, A
CONTRACT MAY BE MADE TODAY WHICH HAS NO LEGAL DEFECT UNDER THE ROBINSON
PATMAN ACT.  BUT ONCE THERE ARE TWO OR MORE SALES AND ONCE THERE HAS
BEEN ILLEGAL DISCRIMINATION, THE ILLEGALITY MAY REACH BACK TO THE FIRST
TRANSACTION, WHICH WAS FREE OF ALL DEFECTS WHEN MADE.  THAT IS INHERENT
IN THE VERY NATURE OF DISCRIMINATION AND IT SHOULD NOT SURPRISE US TO
DISCOVER THAT FACT.  DISCRIMINATION MAY THUS BECOME EVIDENT IN
CONTRACTS, PROMISSORY NOTES, OPEN ACCOUNTS AND OTHER FORMS OF
INDEBTEDNESS.  AND IT MAY PUT IN A TANGIBLE APPEARANCE WHEN A
SUBSEQUENT SUIT IS BROUGHT TO RECOVER, AMONG OTHER THINGS, WHAT HAS
PROVED TO BE AN ILLEGAL PRICE DIFFERENTIAL.  TO DENY EFFECT TO THAT
DISCRIMINATION IN A SUIT BY THE VENDOR DOES NOT REQUIRE THAT A COURT
HOLD VOID THE ENTIRE TRANSACTION AND PERMIT THE BUYER TO RETAIN THE
GOODS FREE OF ANY CHARGE.  IT REQUIRES ONLY THAT THE COURT REFUSE TO
PERMIT THE RECOVERY OF THAT PART OF THE PURCHASE PRICE WHICH
DISCRIMINATES AGAINST THE BUYER WHO PURCHASED THE SAME KIND AND QUALITY
OF GOODS AS HIS COMPETITORS. 

THUS THAT PART OF A CONTRACT OF SALE PERMITTING A CERTAIN DISCOUNT
MAY BE OR BECOME ILLEGAL IF THE PURCHASER'S COMPETITORS ARE GIVEN
LARGER DISCOUNTS.  SUCH IS THE WHOLE TENOR AND POLICY OF THE ROBINSON
PATMAN ACT.  AND COLLECTION OF THE DISCRIMINATORY DIFFERENTIAL FALLS
SQUARELY WITHIN THE AREA OF ILLEGALITY DEFINED BY THE STATUTE.  INDEED,
THE ACT IS SHORN OF MUCH OF ITS MEANING IF THE VENDOR IS PERMITTED TO
RECOVER THE FRUITS OF HIS UNLAWFUL CONDUCT.  COURTS SHOULD NOT BE USED
FOR THAT PURPOSE ANY MORE THAN THEY SHOULD BE USED TO SANCTION RECOVERY
ON CONTRACTS MADE WHOLLY VOID BY THE SHERMAN ACT.  IN THE ONE CASE,
COURTS ARE ASKED TO GIVE JUDGMENT FOR AN UNLAWFUL PRICE DIFFERENTIAL;
IN THE OTHER, THEY ARE ASKED TO ENFORCE A MONOPOLISTIC AGREEMENT.  IN
BOTH CASES, THE ANSWER SHOULD BE A STRONG NEGATIVE.  THE ACTS ARE PART
AND PARCEL OF THE SAME LEGISLATIVE POLICY, THE ROBINSON-PATMAN ACT
MERELY ELABORATING SOME OF THE MORE SUBTLE AND REFINED MONOPOLISTIC
PRACTICES WHICH CONGRESS DESIRED TO ELIMINATE.  COURTS SHOULD TREAT
THEM ACCORDINGLY. 

IT IS NO ANSWER TO SAY, AS THE COURT DOES, THAT WE MUST GO OUTSIDE
THE TRANSACTION IN ISSUE IN ORDER TO GIVE EFFECT TO A DEFENSE OF
UNLAWFUL DISCRIMINATION.  OF COURSE THAT MUST BE DONE, FOR
DISCRIMINATION IS A RELATIVE MATTER DEPENDING UPON THE VENDOR'S
TRANSACTIONS WITH THIRD PARTIES.  BUT SUCH AN INQUIRY MUST BE MADE BY A
COURT IN SUITS FOR TRIPLE DAMAGES UNDER THE ROBINSON-PATMAN ACT. 
AMERICAN CAN CO. V. LADOGA CANNING CO., 44 F.2D 763.  AND AN INQUIRY OF
THAT TYPE MUST FREQUENTLY BE MADE IN PRIVATE SUITS WHERE DEFENSES ARE
MADE UNDER THE SHERMAN ACT.  DISCRIMINATIONS AND MONOPOLIES RARELY IF
EVER APPEAR ON THE FACE OF DOCUMENTS WHICH ARE INTRODUCED FOR PURPOSES
OF SECURING A RECOVERY IN A COURT OF LAW.  JUDGES CONSTANTLY MUST LOOK
BEYOND THE PARTICULAR DOCUMENTS IN ISSUE.  SURELY, IF IT BE ASSUMED
THAT A PARTICULAR DISCOUNT IS UNLAWFUL, NO FACTOR OF INCONVENIENCE OR
BURDEN IN LOOKING AT OTHER TRANSACTIONS CAN JUSTIFY IGNORING THE
ILLEGALITY AND PERMITTING AN UNWARRANTED RECOVERY.  AND TO INSIST THAT
RECOVERY MUST BE ALLOWED IF THE PLAINTIFF SHOWS NO VIOLATION OF LAW IN
PROVING THE AMOUNT DUE ON A PROMISSORY NOTE IS TO HARK BACK TO MEDIEVAL
CONCEPTS OF PLEADING AND PRACTICE.  THE ROBINSON-PATMAN ACT DEALS WITH
COMPLEX ECONOMIC REALITIES.  LITIGANTS AND JUDGES MUST ACT ACCORDINGLY
WHEN THE ACT IS PROPERLY BROUGHT INTO ISSUE BY A DEFENDANT.  IF THE
POLICY OF THE ACT IS TO BE RESPECTED, THE TRANSACTION BEFORE THE COURT
MUST BE JUDGED ON THE BASIS OF OTHER DEALINGS BY THE VENDOR DESPITE THE
SUPERFICIAL PERFECTION OF THE VENDOR'S PLEADINGS AND PROOF.    NOR IS
RECOVERY TO BE DENIED BECAUSE ONLY PART OF THE ILLEGALITY MAY BE IN
ISSUE.  COURTS MUST STRIKE DONW ILLEGALITY WHEREVER IT APPEARS. 
STATUTORY VIOLATIONS ARE NOT TO BE COUNTENANCED MERELY BECAUSE THE
VIOLATOR SEEKS TO REAP ONLY PART OF HIS ILLEGAL HARVEST AT A TIME. 

5.  THE COURT INTIMATES, WITHOUT ACTUALLY DECIDING, THAT COURTS
SHOULD NOT ALLOW THIS TYPE OF DEFENSE TO BE RAISED UNTIL THE FEDERAL
TRADE COMMISSION HAS DETERMINED THE ECONOMIC EFFECTS OF QUANTITY
DISCOUNTS ON COMPETITION.  THE FEAR IS EXPRESSED THAT WITHOUT THE
COMMISSION'S GUIDANCE, COURTS MIGHT STRIKE DOWN ALL QUANTITY DISCOUNTS
AND CREATE UNTOLD RETROACTIVE LIABILITIES. 

THE SHORT ANSWER IS THAT WE SHOULD BE RELUCTANT TO ASSUME THAT JUDGES
ARE UNABLE TO COMPREHEND THE ROBINSON-PATMAN ACT AND THE STANDARDS IT
SETS UP IN REGARD TO QUANTITY DISCOUNTS.  IT MAY BE GRANTED THAT THE
FEDERAL TRADE COMMISSION HAS MORE TECHNICAL KNOWLEDGE AND EXPERIENCE IN
DEALING WITH THE COMPLEXITIES OF THIS PROBLEM THAN MOST COURTS; AND THE
COMMISSION'S JUDGMENT WOULD BE OF INESTIMABLE VALUE TO ANY JUDGE CALLED
UPON TO DEAL WITH QUANTITY DISCOUNTS.  BUT IN THE ABSENCE OF SOME
ACTION BY THE COMMISSION, COURTS MUST ACT AS BEST THEY CAN WITHIN THE
FRAMEWORK PROVIDED BY CONGRESS.  THE ACT, 15 U.S.C. SEC. 13(A),
SPECIFICALLY RECOGNIZES THAT QUANTITY DISCOUNTS ARE ILLEGAL ONLY WHERE
THEY LESSEN OR INJURE COMPETITION OR TEND TO CREATE A MONOPOLY; AND
WHERE PRICE DIFFERENTIALS ARE JUSTIFIED BY DIFFERENCES IN COSTS OF
MANUFACTURE, SALE OR DELIVERY, THE DISCOUNTS ARE PERMISSIBLE.  THIS
MATTER IS A COMPLEX ONE, BUT IT IS NO MORE COMPLEX THAN MANY OTHER
PROBLEMS WHICH FACE THE COURTS. 

THE ONLY ALTERNATIVE TO THE COURT'S APPARENT POSITION IN THIS RESPECT
IS FOR JUDGES TO SIT IDLY BY AND ALLOW SELLERS TO COLLECT ILLEGAL PRICE
DIFFERENTIALS - A FUNCTION THAT HARDLY QUALIFIES AS AN IDEAL TOWARD
WHICH WE SHOULD STRIVE.  INDEED, IF THE COURT'S CONCEPTION OF THE
JUDICIAL FUNCTION IN SUITS OF THIS NATURE IS TO BE CARRIED TO ITS
LOGICAL CONCLUSION, JUDGES WOULD ABDICATE ALL THEIR DUTIES UNDER THE
ROBINSON-PATMAN ACT WHENEVER THE FEDERAL TRADE COMMISSION HAS FAILED TO
EXPRESS AN OPINION ON THE SUBJECT IN ISSUE.  THEY WOULD REFUSE TO
ENTERTAIN TREBLE DAMAGE SUITS AND WOULD DISMISS ALL CRIMINAL
INDICTMENTS BROUGHT ON THE BASIS OF AN ALLEGED VIOLATION OF THE ACT. 
IT SEEMS TO ME, HOWEVER, THAT THE JUDICIAL PROCESS HAS MORE VIGOR AND
RESPONSIBILITY THAN THE COURT SEEMS WILLING TO IMPLY IN THIS CASE. 

6.  FINALLY, THE COURT INDICATES THAT THE FACT THAT PETITIONER IS A
SMALL BUSINESS CONCERN IS A TREACHEROUS BASIS FOR DECIDING ISSUES OF
LAW.  AS A GENERAL PROPOSITION, THERE CAN BE NO DISPUTE WITH THAT
ATTITUDE.  BUT WE MUST NOT BLIND OURSELVES TO THE EQUALLY IMPORTANT
FACT THAT THE ANTITRUST LAWS, OF WHICH THE ROBINSON-PATMAN ACT IS AN
INTEGRAL PART, ARE DESIGNED PRIMARILY TO AID THE SMALL BUSINESS
CONCERNS AND TO CURB THE GROWTH OF GIANT MONOPOLIES.  MANY YEARS AGO
THIS COURT HAD OCCASION TO POINT OUT THAT TRADE AND COMMERCE MAY BE
"BADLY AND UNFORTUNATELY RESTRAINED BY DRIVING OUT OF BUSINESS THE
SMALL DEALERS AND WORTHY MEN WHOSE LIVES HAVE BEEN SPENT THEREIN, AND
WHO MIGHT BE UNABLE TO READJUST THEMSELVES TO THEIR ALTERED
SURROUNDINGS.  MERE REDUCTION IN THE PRICE OF THE COMMODITY DEALT IN
MIGHT BE DEARLY PAID FOR BY THE RUIN OF SUCH A CLASS, AND THE
ABSORPTION OF CONTROL OVER ONE COMMODITY BY AN ALL-POWERFUL COMBINATION
OF CAPITAL."  UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S.
290, 323.  THE SAME OBSERVATION APPLIES TO THIS CASE.  THE ROBINSON
PATMAN ACT WAS DESIGNED IN LARGE PART TO PROTECT THE SMALL BUSINESS
CONCERNS, CONGRESS REALIZING THE DISASTROUS EFFECTS OF THEIR BEING THE
VICTIMS OF DISCRIMINATORY PRICES.  A PROPER TREATMENT OF THE ACT
DEMANDS APPRECIATION OF THIS PURPOSE. 

WE SHOULD PAUSE LONG BEFORE SANCTIONING THE RECOVERY OF
DISCRIMINATORY PRICES WHICH CONGRESS HAS FOUND INIMICAL TO THE NATION'S
WELFARE.  WE SHOULD BE ON GUARD AGAINST THE USE OF THE JUDICIAL PROCESS
TO AUGMENT THE SUBTLE DESTRUCTION OF SMALL BUSINESS CONTRARY TO THE
LEGISLATIVE WILL, AND THE EROSION OF THE BARRIERS WHICH CONGRESS HAS
ERECTED AGAINST THE FLOOD-TIDE OF MONOPOLY.  TO THAT END, THEREFORE, WE
SHOULD REVERSE THE JUDGMENT BELOW AND ALLOW COURTS TO GIVE FULL EFFECT
TO THE ROBINSON-PATMAN ACT. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN
IN THIS DISSENT. 
..END :
























BETHLEHEM CO. V. STATE BOARD, 330 U.S. 767 


ARGUED DECEMBER 16, 17, 1946.  - DECIDED APRIL 7, 1947.  - 295 N.Y. 601,
607, 64 N.E.2D 350, 352, REVERSED. 


WHERE THE NATIONAL LABOR RELATIONS BOARD HAD ASSERTED GENERAL
JURISDICTION OVER UNIONS OF FOREMEN EMPLOYED BY INDUSTRIES SUBJECT TO
THE NATIONAL LABOR RELATIONS ACT BUT HAD REFUSED TO CERTIFY SUCH UNIONS
AS COLLECTIVE BARGAINING REPRESENTATIVES ON THE GROUND THAT TO DO SO AT
THE TIME WOULD OBSTRUCT RATHER THAN FURTHER EFFECTUATION OF THE
PURPOSES OF THE ACT, CERTIFICATION OF SUCH UNIONS BY THE NEW YORK STATE
LABOR RELATIONS BOARD UNDER A STATE ACT SIMILAR TO THE NATIONAL ACT
HELD INVALID AS IN CONFLICT WITH THE NATIONAL LABOR RELATIONS ACT AND
THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 771-777. 

BETHLEHEM STEEL CO. ET AL. V. NEW YORK STATE LABOR RELATIONS BOARD. 

NO. 55.  APPEAL FROM THE COURT OF APPEALS OF NEW YORK* . 

*TOGETHER WITH NO. 76, ALLEGHENY LUDLUM STEEL CORP. V. KELLEY ET AL.,
APPEAL FROM THE SUPREME COURT OF NEW YORK FOR CHAUTAUQUA COUNTY. 

NO. 55.  A NEW YORK STATE COURT ISSUED AN ORDER TO ENFORCE A SUBPOENA
DUCES TECUM ISSUED BY THE NEW YORK STATE LABOR RELATIONS BOARD IN A
PROCEEDING FOR THE CERTIFICATION AS A COLLECTIVE BARGAINING
REPRESENTATIVE UNDER THE NEW YORK STATE LABOR RELATIONS ACT OF A UNION
OF FOREMEN OF AN EMPLOYER WHOSE BUSINESS WAS PREDOMINANTLY INTERSTATE. 
9 C.C.H. LABOR CASES (1945) $* 62, 611.  THE APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK AFFIRMED.  269 APP. DIV. 805, 56 N.Y.S.2D
195.  THE NEW YORK COURT OF APPEALS AFFIRMED.  295 N.Y. 601, 664, 64
N.E.2D 350, 65 N.E.2D 54.  ON APPEAL TO THIS COURT, REVERSED, P. 777. 

NO. 76.  A NEW YORK STATE COURT DISMISSED A SUIT BY AN EMPLOYER WHOSE
BUSINESS WAS PREDOMINANTLY INTERSTATE FOR A DECLARATORY JUDGMENT
DECREEING THAT THE NEW YORK STATE LABOR RELATIONS BOARD WAS WITHOUT
JURISDICTION TO DETERMINE REPRESENTATION OF ITS FOREMEN AND ENJOINING
THE BOARD FROM ORDERING THE EMPLOYER TO BARGAIN COLLECTIVELY WITH THEIR
UNION.  184 MISC. 47, 49 N.Y.S.2D 762.  THE APPELLATE DIVISION OF THE
SUPREME COURT OF NEW YORK AFFIRMED.  269 APP. DIV. 805, 56 N.Y.S.2D
196.  THE COURT OF APPEALS OF NEW YORK AFFIRMED.  295 N.Y. 607, 64
N.E.2D 352.  ON APPEAL TO THIS COURT, REVERSED AND REMANDED, P. 777. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS CHALLENGE THE VALIDITY OF THE LABOR RELATIONS ACT OF
THE STATE OF NEW YORK AS APPLIED TO APPELLANTS TO PERMIT UNIONIZATION
OF THEIR FOREMEN.  CONFLICT IS ASSERTED BETWEEN IT AND THE NATIONAL
LABOR RELATIONS ACT AND HENCE WITH THE COMMERCE CLAUSE OF THE
CONSTITUTION. 

AFTER ENACTMENT BY CONGRESS OF THE NATIONAL LABOR RELATIONS ACT, JULY
5, 1935, 49 STAT. 449, 29 U.S.C. SEC. 151, ET SEQ., NEW YORK ADOPTED A
STATE LABOR RELATIONS ACT FOLLOWING THE FEDERAL PATTERN.  LAWS OF NEW
YORK, 1937, CHAP. 443, 30 MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK,
SECS. 700-716.  IN THE ADMINISTRATIVE BOARDS THEY CREATE, THE
PROCEDURES THEY ESTABLISH, THE UNFAIR LABOR PRACTICES PROHIBITED, THE
TWO STATUTES MAY BE TAKEN FOR PRESENT PURPOSES TO BE THE SAME.  BUT IN
PROVISION FOR DETERMINATION OF UNITS OF REPRESENTATION FOR BARGAINING
PURPOSES, THE TWO ACTS ARE NOT IDENTICAL.  THEIR DIFFERENCES MAY BE
MADE PLAIN BY SETTING FORTH SEC. 9(B) OF THE FEDERAL ACT, WITH THAT
PART WHICH IS OMITTED FROM THE STATE ACT IN BRACKETS AND ADDITIONS MADE
BY THE STATE ACT AS AMENDED, LAWS OF NEW YORK, 1942, CHAP. 518, IN
ITALICS: 

"THE BOARD SHALL DECIDE IN EACH CASE WHETHER, IN ORDER TO INSURE TO
EMPLOYEES THE FULL BENEFIT OF THEIR RIGHT TO SELF-ORGANIZATION (AND) TO
COLLECTIVE BARGAINING, AND OTHERWISE TO EFFECTUATE THE POLICIES OF THIS
ACT, THE UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE BARGAINING
SHALL BE THE EMPLOYER UNIT, MULTIPLE EMPLOYER UNIT, CRAFT UNIT, PLANT
UNIT, OR (SUBDIVISION THEREOF) ANY OTHER UNIT; PROVIDED, HOWEVER, THAT
IN ANY CASE WHERE THE MAJORITY OF EMPLOYEES OF A PARTICULAR CRAFT SHALL
SO DECIDE THE BOARD SHALL DESIGNATE SUCH CRAFT AS A UNIT APPROPRIATE
FOR THE PURPOSE OF COLLECTIVE BARGAINING." 

THE PROCEDURES PRESCRIBED FOR THE TWO BOARDS FOR INVESTIGATION,
CERTIFICATION, AND HEARING ON REPRESENTATION UNITS AND FOR THEIR
ELECTION ARE SUBSTANTIALLY THE SAME EXCEPT THAT THE STATE LAW ADDS THE
FOLLOWING LIMITATION NOT FOUND IN THE FEDERAL ACT:  "...  PROVIDED,
HOWEVER, THAT THE BOARD SHALL NOT HAVE AUTHORITY TO INVESTIGATE ANY
QUESTION OR CONTROVERSY BETWEEN INDIVIDUALS OR GROUPS WITHIN THE SAME
LABOR ORGANIZATION OR BETWEEN LABOR ORGANIZATIONS AFFILIATED WITH THE
SAME PARENT LABOR ORGANIZATION."  LAWS OF NEW YORK, 1937, CHAP. 443, AS
AMENDED, LAWS 1942, CHAP. 518, 30 MCKINNEY'S CONSOLIDATED LAWS OF NEW
YORK, SEC. 705.3. 

THE TWO BOARDS HAVE AT TIMES PURSUED INCONSISTENT POLICIES IN
APPLYING THEIR RESPECTIVE ACTS TO PETITIONS OF FOREMEN AS A CLASS TO
ORGANIZE BARGAINING UNITS THEREUNDER.  THE STATE BOARD HAS IN THESE
CASES RECOGNIZED THAT RIGHT; THE NATIONAL BOARD FOR A TIME RECOGNIZED
IT.  UNION COLLIERIES COAL CO., 41 N.L.R.B. 961; GODCHAUX SUGARS, INC.,
44 N.L.R.B. 874.  LATER, THERE WAS A PERIOD WHEN, FOR POLICY REASONS
BUT WITHOUT RENOUNCING JURISDICTION, IT REFUSED TO APPROVE FOREMEN
ORGANIZATION UNITS.  MARYLAND DRYDOCK CO., 49 N.L.R.B. 733; BOEING
AIRCRAFT CO., 51 N.L.R.B. 67; GENERAL MOTORS CORP., 51 N.L.R.B. 457. 
NOW, AGAIN, IT SUPPORTS THEIR RIGHT TO UNIONIZE.  PACKARD MOTOR CAR
CO., 61 N.L.R.B. 4, 64 N.L.R.B. 1212; L.A. YOUNG SPRING & WIRE CORP.,
65 N.L.R.B. 298.  THE FOREMEN OF THESE APPELLANTS, AT A TIME WHEN THEIR
DESIRE TO ORGANIZE WAS FRUSTRATED BY THE POLICY OF THE NATIONAL BOARD,
FILED APPLICATIONS WITH THE STATE BOARD.  IT ENTERTAINED THEIR
PETITIONS AND ITS POLICY PERMITTED THEM AS A CLASS TO BECOME A
BARGAINING UNIT.  BOTH EMPLOYERS, BY DIFFERENT METHODS ADEQUATE UNDER
STATE LAW TO RAISE THE QUESTION, CHALLENGED THE CONSTITUTIONALITY OF
THE STATE ACT AS SO APPLIED TO THEM.  THEIR CONTENTIONS ULTIMATELY WERE
CONSIDERED AND REJECTED BY THE NEW YORK COURT OF APPEALS AND ITS
DECISIONS SUSTAINING STATE POWER OVER THE MATTER WERE BROUGHT HERE BY
APPEALS. 

BOTH OF THESE LABOR CONTROVERSIES AROSE IN MANUFACTURING PLANTS
LOCATED IN NEW YORK WHERE THE COMPANIES EMPLOY LARGE STAFFS OF FOREMEN
TO SUPERVISE A MUCH LARGER FORCE OF LABOR.  BUT BOTH CONCERNS HAVE SUCH
A RELATION TO INTERSTATE COMMERCE THAT, FOR THE REASONS STATED IN
NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301
U.S. 1, FEDERAL POWER REACHES THEIR LABOR RELATIONS.  ON THIS BASIS THE
NATIONAL BOARD HAS EXERCISED POWER TO CERTIFY BARGAINING AGENTS FOR
UNITS OF EMPLOYEES OTHER THAN FOREMEN OF BOTH COMPANIES.  MATTER OF
ALLEGHENY LUDLUM STEEL CORPORATION, CASE NO. III-R-411, N.L.R.B., JUNE
29, 1942; MATTER OF BETHLEHEM STEEL CORP. AND C.I.O., 30 N.L.R.B. 1006,
32 N.L.R.B. 264, 1941(PRODUCTION AND MAINTENANCE EMPLOYEES); MATTER OF
BETHLEHEM STEEL CORP. AND A.F. OF L., 47 N.L.R.B. 1330, 1943(PLANT
PROTECTION EMPLOYEES); MATTER OF BETHLEHEM STEEL CORPORATION AND
C.I.O., 52 N.L.R.B. 1217, 1943(EMPLOYEES IN ORDER DEPARTMENT); MATTER
OF BETHLEHEM STEEL CO. AND A.F. OF L., 55 N.L.R.B. 658, 1944(FIRE
DEPARTMENT EMPLOYEES).  THE COMPANIES CONTEND THAT THE NATIONAL BOARD'S
JURISDICTION OVER THEIR LABOR RELATIONS IS EXCLUSIVE OF STATE POWER;
THE STATE CONTENDS ON THE CONTRARY THAT WHILE FEDERAL POWER OVER THE
SUBJECT IS PARAMOUNT, IT IS NOT EXCLUSIVE AND IN SUCH A CASE AS WE HAVE
HERE, UNTIL THE FEDERAL POWER IS ACTUALLY EXERCISED AS TO THE
PARTICULAR EMPLOYEES, STATE POWER MAY BE EXERCISED. 

AT THE TIME THE COURTS OF THE STATE OF NEW YORK WERE CONSIDERING THIS
ISSUE, THE QUESTION WHETHER THE FEDERAL ACT WOULD AUTHORIZE OR PERMIT
UNIONIZATION OF FOREMEN WAS IN CONTROVERSY AND WAS UNSETTLED UNTIL OUR
DECISION IN PACKARD MOTOR CAR CO. V. N.L.R.B., 330 U.S. 485.  WHATEVER
CONSTITUTIONAL ISSUE MAY HAVE BEEN PRESENTED BY EARLIER PHASES OF THE
EVOLUTION OF THE FEDERAL POLICY IN RELATION TO THAT OF THE STATE, THE
QUESTION NOW IS WHETHER, CONGRESS HAVING UNDERTAKEN TO DEAL WITH THE
RELATIONSHIP BETWEEN THESE COMPANIES AND THEIR FOREMEN, THE STATE IS
PREVENTED FROM DOING SO.  CONGRESS HAS NOT SEEN FIT TO LAY DOWN EVEN
THE MOST GENERAL OF GUIDES TO CONSTRUCTION OF THE ACT, AS IT SOMETIMES
DOES, BY SAYING THAT ITS REGULATION EITHER SHALL OR SHALL NOT EXCLUDE
STATE ACTION.  CF. SECURITIES ACT OF 1933, SEC. 18, 48 STAT. 85, 15
U.S.C. SEC. 77R; SECURITIES EXCHANGE ACT OF 1934, SEC. 28, 48 STAT.
903, 15 U.S.C. SEC. 78BB; UNITED STATES WAREHOUSE ACT, SEC. 29, BEFORE
AND AFTER 1931 AMENDMENT, 39 STAT. 490, 46 STAT. 1465, 7 U.S.C. SEC.
269.  OUR QUESTION IS PRIMARILY ONE OF THE CONSTRUCTION TO BE PUT ON
THE FEDERAL ACT.  IT LONG HAS BEEN THE RULE THAT EXCLUSION OF STATE
ACTION MAY BE IMPLIED FROM THE NATURE OF THE LEGISLATION AND THE
SUBJECT MATTER ALTHOUGH EXPRESS DECLARATION OF SUCH RESULT IS WANTING. 
NAPIER V. ATLANTIC COAST LINE R. CO., 272 U.S. 605. 

IN DETERMINING WHETHER EXCLUSION OF STATE POWER WILL OR WILL NOT BE
IMPLIED, WE WELL MAY CONSIDER THE RESPECTIVE RELATION OF FEDERAL AND
STATE POWER TO THE GENERAL SUBJECT MATTER AS ILLUSTRATED BY THE CASE IN
HAND.  THESE COMPANIES ARE AUTHORIZED TO DO BUSINESS IN NEW YORK STATE,
THEY OPERATE LARGE MANUFACTURING PLANTS IN THAT STATE, THEY DRAW THEIR
LABOR SUPPLY FROM ITS RESIDENTS, AND THE IMPACT OF INDUSTRIAL STRIFE IN
THEIR PLANTS IS IMMEDIATELY FELT BY STATE POLICE, WELFARE AND OTHER
DEPARTMENTS.  THEIR LABOR RELATIONS ARE PRIMARILY OF INTEREST TO THE
STATE, ARE WITHIN ITS COMPETENCE LEGALLY AND PRACTICALLY TO REGULATE,
AND UNTIL RECENTLY WERE LEFT ENTIRELY TO STATE CONTROL.  THUS, THE
SUBJECT MATTER IS NOT SO "INTIMATELY BLENDED AND INTERTWINED WITH
RESPONSIBILITIES OF THE NATIONAL GOVERNMENT" THAT ITS NATURE ALONE
RAISES AN INFERENCE OF EXCLUSION.  CF. HINES V. DAVIDOWITZ, 312 U.S.
52, 66. 

INDEED, THE SUBJECT MATTER IS ONE REACHABLE, AND ONE WHICH CONGRESS
HAS REACHED, UNDER THE FEDERAL COMMERCE POWER, NOT BECAUSE IT IS
INTERSTATE COMMERCE BUT BECAUSE UNDER THE DOCTRINE GIVEN CLASSIC
EXPRESSION IN THE SHREVEPORT CASE, CONGRESS CAN REACH ADMITTEDLY LOCAL
AND INTRASTATE ACTIVITIES "HAVING SUCH A CLOSE AND SUBSTANTIAL RELATION
TO INTERSTATE TRAFFIC THAT THE CONTROL IS ESSENTIAL OR APPROPRIATE TO
THE SECURITY OF THAT TRAFFIC, TO THE EFFICIENCY OF THE INTERSTATE
SERVICE, AND TO THE MAINTENANCE OF CONDITIONS UNDER WHICH INTERSTATE
COMMERCE MAY BE CONDUCTED UPON FAIR TERMS AND WITHOUT MOLESTATION OR
HINDRANCE."  HOUSTON & TEXAS RY. V. UNITED STATES, 234 U.S. 342, 351. 
SEE ALSO NATIONAL LABOR RELATIONS BOARD V. FAINBLATT, 306 U.S. 601. 

IN THE NATIONAL LABOR RELATIONS ACT, CONGRESS HAS SOUGHT TO REACH
SOME ASPECTS OF THE EMPLOYER-EMPLOYEE RELATION OUT OF WHICH SUCH
INTERFERENCES ARISE.  IT HAS DEALT WITH THE SUBJECT OR RELATIONSHIP BUT
PARTIALLY, AND HAS LEFT OUTSIDE OF THE SCOPE OF ITS DELEGATION OTHER
CLOSELY RELATED MATTERS.  WHERE IT LEAVES THE EMPLOYER-EMPLOYEE
RELATION FREE OF REGULATION IN SOME ASPECTS, IT IMPLIES THAT IN SUCH
MATTERS FEDERAL POLICY IS INDIFFERENT, AND SINCE IT IS INDIFFERENT TO
WHAT THE INDIVIDUAL OF HIS OWN VOLITION MAY DO WE CAN ONLY ASSUME IT TO
BE EQUALLY INDIFFERENT TO WHAT HE MAY DO UNDER THE COMPULSION OF THE
STATE.  SUCH WAS THE SITUATION IN ALLEN-BRADLEY LOCAL V. BOARD, 315
U.S. 740, WHERE WE HELD THAT EMPLOYEE AND UNION CONDUCT OVER WHICH NO
DIRECT OR DELEGATED FEDERAL POWER WAS EXERTED BY THE NATIONAL LABOR
RELATIONS ACT IS LEFT OPEN TO REGULATION BY THE STATE.  HOWEVER, THE
POWER OF THE STATE MAY NOT SO DEAL WITH MATTERS LEFT TO ITS CONTROL AS
TO STAND "AS AN OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION OF THE
FULL PURPOSES AND OBJECTIVES OF CONGRESS."  HILL V. FLORIDA, 325 U.S.
538, 542.  CF. MAURER V. HAMILTON, 309 U.S. 598.  WHEN CONGRESS HAS
OUTLINED ITS POLICY IN RATHER GENERAL AND INCLUSIVE TERMS AND DELEGATED
DETERMINATION OF THEIR SPECIFIC APPLICATION TO AN ADMINISTRATIVE
TRIBUNAL, THE MERE FACT OF DELEGATION OF POWER TO DEAL WITH THE GENERAL
MATTER, WITHOUT AGENCY ACTION, MIGHT PRECLUDE ANY STATE ACTION IF IT IS
CLEAR THAT CONGRESS HAS INTENDED NO REGULATION EXCEPT ITS OWN.  OREGON
WASHINGTON CO. V. WASHINGTON, 270 U.S. 87.  IN OTHER CASES, CONGRESS
HAS PASSED STATUTES WHICH INITIATE REGULATION OF CERTAIN ACTIVITIES,
BUT WHERE EFFECTIVE REGULATION MUST WAIT UPON THE ISSUANCE OF RULES BY
AN ADMINISTRATIVE BODY.  IN THE INTERVAL BEFORE THOSE RULES ARE
ESTABLISHED, THIS COURT HAS USUALLY HELD THAT THE POLICE POWER OF THE
STATE MAY BE EXERCISED.  NORTHWESTERN BELL TELEPHONE CO. V. NEBRASKA
STATE COMMISSION, 297 U.S. 471; WELCH CO. V. NEW HAMPSHIRE, 306 U.S.
79.  BUT WHEN FEDERAL ADMINISTRATION HAS MADE COMPREHENSIVE REGULATIONS
EFFECTIVELY GOVERNING THE SUBJECT MATTER OF THE STATUTE, THE COURT HAS
SAID THAT A STATE REGULATION IN THE FIELD OF THE STATUTE IS INVALID
EVEN THOUGH THAT PARTICULAR PHASE OF THE SUBJECT HAS NOT BEEN TAKEN UP
BY THE FEDERAL AGENCY.  NAPIER V. ATLANTIC COAST LINE R. CO., 272 U.S.
605.  HOWEVER, WHEN FEDERAL ADMINISTRATIVE REGULATION HAS BEEN SLIGHT
UNDER A STATUTE WHICH POTENTIALLY ALLOWS MINUTE AND MULTITUDINOUS
REGULATION OF ITS SUBJECT, CF. ATLANTIC COAST LINE R. CO. V. GEORGIA,
234 U.S. 280, OR EVEN WHERE EXTENSIVE REGULATIONS HAVE BEEN MADE, IF
THE MEASURE IN QUESTION RELATES TO WHAT MAY BE CONSIDERED A SEPARABLE
OR DISTINCT SEGMENT OF THE MATTER COVERED BY THE FEDERAL STATUTE AND
THE FEDERAL AGENCY HAS NOT ACTED ON THAT SEGMENT, THE CASE WILL BE
TREATED IN A MANNER SIMILAR TO CASES IN WHICH THE EFFECTIVENESS OF
FEDERAL SUPERVISION AWAITS FEDERAL ADMINISTRATIVE REGULATION,
NORTHWESTERN BELL TELEPHONE CO. V. NEBRASKA STATE COMMISSION, SUPRA;
WELCH CO. V. NEW HAMPSHIRE, SUPRA.  THE STATES ARE IN THOSE CASES
PERMITTED TO USE THEIR POLICE POWER IN THE INTERVAL.  TERMINAL RAILROAD
ASSN. V. BROTHERHOOD OF RAILROAD TRAINMEN, 318 U.S. 1.  HOWEVER, THE
CONCLUSION MUST BE OTHERWISE WHERE FAILURE OF THE FEDERAL OFFICIALS
AFFIRMATIVELY TO EXERCISE THEIR FULL AUTHORITY TAKES ON THE CHARACTER
OF A RULING THAT NO SUCH REGULATION IS APPROPRIATE OR APPROVED PURSUANT
TO THE POLICY OF THE STATUTE.  NAPIER V. ATLANTIC COAST LINE, 272 U.S.
605; COMPARE OREGON-WASHINGTON CO. V. WASHINGTON, 270 U.S. 87, WITH
PARKER V. BROWN, 317 U.S. 341; CF. MINTZ V. BALDWIN, 289 U.S. 346. 
IT IS CLEAR THAT THE FAILURE OF THE NATIONAL LABOR RELATIONS BOARD TO
ENTERTAIN FOREMEN'S PETITIONS WAS OF THE LATTER CLASS.  THERE WAS NO
ADMINISTRATIVE CONCESSION THAT THE NATURE OF THESE APPELLANTS' BUSINESS
PUT THEIR EMPLOYEES BEYOND REACH OF FEDERAL AUTHORITY.  THE BOARD
SEVERAL TIMES ENTERTAINED SIMILAR PROCEEDINGS BY OTHER EMPLOYEES WHOSE
RIGHT RESTED ON THE SAME WORDS OF CONGRESS.  NEITHER DID THE NATIONAL
BOARD EVER DENY ITS OWN JURISDICTION OVER PETITIONS BECAUSE THEY WERE
BY FOREMEN.  SOSS MANUFACTURING CO., 56 N.L.R.B. 348.  IT MADE CLEAR
THAT ITS REFUSAL TO DESIGNATE FOREMEN'S BARGAINING UNITS WAS A
DETERMINATION AND AN EXERCISE OF ITS DISCRETION TO DETERMINE THAT SUCH
UNITS WERE NOT APPROPRIATE FOR BARGAINING PURPOSES.  MARYLAND DRYDOCK
CO., 49 N.L.R.B. 733.  WE CANNOT, THEREFORE, DEAL WITH THIS AS A CASE
WHERE FEDERAL POWER HAS BEEN DELEGATED BUT LIES DORMANT AND
UNEXERCISED. 

COMPARISON OF THE STATE AND FEDERAL STATUTES WILL SHOW THAT BOTH
GOVERNMENTS HAVE LAID HOLD OF THE SAME RELATIONSHIP FOR REGULATION, AND
IT INVOLVES THE SAME EMPLOYERS AND THE SAME EMPLOYEES.  EACH HAS
DELEGATED TO AN ADMINISTRATIVE AUTHORITY A WIDE DISCRETION IN APPLYING
THIS PLAN OF REGULATION TO SPECIFIC CASES, AND THEY ARE GOVERNED BY
SOMEWHAT DIFFERENT STANDARDS.  THUS, IF BOTH LAWS ARE UPHELD, TWO
ADMINISTRATIVE BODIES ARE ASSERTING A DISCRETIONARY CONTROL OVER THE
SAME SUBJECT MATTER, CONDUCTING HEARINGS, SUPERVISING ELECTIONS AND
DETERMINING APPROPRIATE UNITS FOR BARGAINING IN THE SAME PLANT.  THEY
MIGHT COME OUT WITH THE SAME DETERMINATION, OR THEY MIGHT COME OUT WITH
CONFLICTING ONES AS THEY HAVE IN THE PAST.  CF. MATTER OF CREAMERY
PACKAGE MFG. CO., 34 N.L.R.B. 108; WISC.  EMP.  REL. BD. CASE III, NO.
348 E-117.  BUT THE POWER TO DECIDE A MATTER CAN HARDLY BE MADE
DEPENDENT ON THE WAY IT IS DECIDED.  AS SAID BY MR. JUSTICE HOLMES FOR
THE COURT, "WHEN CONGRESS HAS TAKEN THE PARTICULAR SUBJECTMATTER IN
HAND COINCIDENCE IS AS INEFFECTIVE AS OPPOSITION  ..."  CHARLESTON R.
CO. V. VARNVILLE CO., 237 U.S. 597, 604.  SEE ALSO SOUTHERN RAILWAY CO.
V. RAILROAD COMMISSION OF INDIANA, 236 U.S. 439, 448; MISSOURI PACIFIC
R.R. V. PORTER, 273 U.S. 341, 345-6.  IF THE TWO BOARDS ATTEMPT TO
EXERCISE A CONCURRENT JURISDICTION TO DECIDE THE APPROPRIATE UNIT OF
REPRESENTATION, ACTION BY ONE NECESSARILY DENIES THE DISCRETION OF THE
OTHER.  THE SECOND TO ACT EITHER MUST FOLLOW THE FIRST, WHICH WOULD
MAKE ITS ACTION USELESS AND VAIN, OR DEPART FROM IT, WHICH WOULD
PRODUCE A MISCHIEVOUS CONFLICT.  THE STATE ARGUES FOR A RULE THAT WOULD
ENABLE IT TO ACT UNTIL THE FEDERAL BOARD HAD ACTED IN THE SAME CASE. 
BUT WE DO NOT THINK THAT A CASE BY CASE TEST OF FEDERAL SUPREMACY IS
PERMISSIBLE HERE.  THE FEDERAL BOARD HAS JURISDICTION OF THE INDUSTRY
IN WHICH THESE PARTICULAR EMPLOYERS ARE ENGAGED AND HAS ASSERTED
CONTROL OF THEIR LABOR RELATIONS IN GENERAL.  IT ASSERTS, AND
RIGHTFULLY SO, UNDER OUR DECISION IN THE PACKARD CASE, SUPRA, ITS POWER
TO DECIDE WHETHER THESE FOREMEN MAY CONSTITUTE THEMSELVES A BARGAINING
UNIT.  WE DO NOT BELIEVE THIS LEAVES ROOM FOR THE OPERATION OF THE
STATE AUTHORITY ASSERTED. 

THE NATIONAL AND STATE BOARDS HAVE MADE A COMMENDABLE EFFORT TO AVOID
CONFLICT IN THIS OVERLAPPING STATE OF THE STATUTES.  WE FIND NOTHING IN
THEIR NEGOTIATIONS, HOWEVER, WHICH AFFECTS EITHER THE CONSTRUCTION OF
THE FEDERAL STATUTE OR THE QUESTION OF CONSTITUTIONAL POWER INSOFAR AS
THEY ARE INVOLVED IN THIS CASE, SINCE THE NATIONAL BOARD MADE NO
CONCESSION OR DELEGATION OF POWER TO DEAL WITH THIS SUBJECT.  THE
ELECTION OF THE NATIONAL BOARD TO DECLINE JURISDICTION IN CERTAIN TYPES
OF CASES, FOR BUDGETARY OR OTHER REASONS PRESENTS A DIFFERENT PROBLEM
WHICH WE DO NOT NOW DECIDE. 

WE THEREFORE CONCLUDE THAT IT IS BEYOND THE POWER OF NEW YORK STATE
TO APPLY ITS POLICY TO THESE APPELLANTS AS ATTEMPTED HEREIN.  THE
JUDGMENTS APPEALED FROM ARE REVERSED AND THE CAUSES REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT HEREWITH.  REVERSED. 

SEPARATE OPINION OF MR. JUSTICE FRANKFURTER, IN WHICH MR. JUSTICE
MURPHY AND MR. JUSTICE RUTLEDGE JOIN. 

THE LEGAL ISSUE IN THESE CASES DERIVES FROM OUR DECISION IN PACKARD
MOTOR CAR CO. V. NATIONAL LABOR RELATIONS BOARD, 330 U.S. 485.  THE
COURT THERE HELD THAT FOREMEN ARE "EMPLOYEES" WITHIN SEC. 2(3) OF THE
NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 450, AND AS SUCH ARE
ENTITLED TO THE RIGHTS OF SELF-ORGANIZATION UNDER THE ACT.  AS THE
PACKARD CASE POINTS OUT, THE EXERCISE OF THIS AUTHORITY OVER FOREMEN
HAS HAD A CHEQUERED HISTORY BEFORE THE NATIONAL LABOR RELATIONS BOARD. 
THERE WAS A PERIOD WHEN THE BOARD IN THE EXERCISE OF ITS DISCRETION
DENIED RESORT TO ITS AUTHORITY BY FOREMEN SEEKING COLLECTIVE BARGAINING
REPRESENTATION.  DURING THAT PERIOD, FOREMEN OF THE TWO PETITIONING
STEEL COMPANIES INVOKED THE JURISDICTION OF THE NEW YORK STATE LABOR
BOARD TO CERTIFY THEM AS A BARGAINING UNIT UNDER THE NEW YORK LAW
DESCRIPTIVELY CHARACTERIZED AS A "LITTLE WAGNER ACT" BECAUSE IT
ENFORCES THE SAME POLICIES BY THE SAME MEANS AS DOES THE WAGNER ACT. 
THE STATE BOARD ASSUMED JURISDICTION AND THE NEW YORK COURT OF APPEALS
SUSTAINED THAT ASSUMPTION.  OUR PROBLEM IS WHETHER THE NATIONAL LABOR
RELATIONS ACT IN ITS ENTIRETY - THE LAW AS CONGRESS GAVE IT TO THE
NATIONAL BOARD FOR ADMINISTRATION - PRECLUDED THIS EXERCISE OF STATE
AUTHORITY. 

IF THE COURT MERELY HELD THAT, HAVING GIVEN THE NATIONAL BOARD
JURISDICTION OVER FOREMEN CONGRESS ALSO GAVE IT DISCRETION TO DETERMINE
THAT IT MAY BE UNDESIRABLE, AS A MATTER OF INDUSTRIAL RELATIONS, TO
COMPEL RECOGNITION OF FOREMEN'S UNIONS; THAT THE BOARD HAD SO EXERCISED
ITS DISCRETION AND, BY REFUSING TO SANCTION FOREMEN'S UNIONS, HAD
DETERMINED THAT FOREMEN IN ENTERPRISES LIKE THOSE BEFORE US COULD NOT
EXACT UNION RECOGNITION; THAT THEREFORE NEW YORK COULD NOT OPPOSE SUCH
FEDERAL ACTION BY A CONTRARY POLICY OF ITS OWN, I SHOULD CONCUR IN THE
COURT'S DECISION, WHATEVER THE DIFFERENCES OF INTERPRETATION TO WHICH
THE COURSE OF EVENTS BEFORE THE NATIONAL BOARD MAY LEND ITSELF.  BUT
THE COURT'S OPINION DOES NOT, AS I READ IT, HAVE THAT RESTRICTED SCOPE,
BASED ON THE INDIVIDUAL CIRCUMSTANCES BEFORE US.  APART FROM THE
SUGGESTION THAT THE NATIONAL BOARD'S DECLINATION OF JURISDICTION "IN
CERTAIN TYPES OF CASES, FOR BUDGETARY OR OTHER REASONS" MIGHT LEAVE
ROOM FOR THE STATE IN THOSE SITUATIONS, THE COURT'S OPINION CARRIES AT
LEAST OVERTONES OF MEANING THAT, REGARDLESS OF THE CONSENT OF THE
NATIONAL BOARD, NEW YORK IS EXCLUDED FROM ENFORCING RIGHTS OF
COLLECTIVE BARGAINING IN ALL INDUSTRIES WITHIN ITS BORDERS AS TO WHICH
CONGRESS HAS GRANTED OPPORTUNITY TO INVOKE THE AUTHORITY OF THE
NATIONAL BOARD. 

THE INABILITY OF THE NATIONAL BOARD TO EXERCISE ITS DORMANT POWERS
BECAUSE OF LACK OF FUNDS OUGHT NOT TO FURNISH A MORE PERSUASIVE REASON
FOR FINDING THAT CONCURRENT STATE POWER MAY FUNCTION THAN A DELIBERATE
EXERCISE OF JUDGMENT BY THE NATIONAL BOARD THAT INDUSTRIAL RELATIONS
HAVING BOTH NATIONAL AND STATE CONCERN CAN MOST EFFECTIVELY BE PROMOTED
BY AN APPROPRIATE DIVISION OF ADMINISTRATIVE RESOURCES BETWEEN THE
NATIONAL AND THE STATE BOARDS.  THIS STATES ABSTRACTLY A VERY PRACTICAL
SITUATION.  BASED ON THE REALIZATION THAT AS A PRACTICAL MATTER THE
NATIONAL BOARD COULD NOT EFFECTUATE THE POLICIES OF THE ACT COMMITTED
TO IT OVER THE WHOLE RANGE OF ITS AUTHORITY, AN ARRANGEMENT WAS WORKED
OUT WHEREBY THE NATIONAL BOARD LEAVES TO THE STATE BOARD JURISDICTION
OVER SO-CALLED LOCAL INDUSTRIES COVERED BY THE FEDERAL ACT, WHILE THE
STATE BOARD DOES NOT ENTERTAIN MATTERS OVER WHICH THE NATIONAL BOARD
HAS CONSISTENTLY TAKEN JURISDICTION.  THIS PRACTICAL FEDERAL-STATE
WORKING ARRANGEMENT, ARRIVED AT BY THOSE CARRYING THE RESPONSIBILITY
FOR BREATHING LIFE INTO THE BARE BONES OF LEGISLATION, IS SO RELEVANT
TO THE SOLUTION OF THE LEGAL ISSUES ARISING OUT OF STATE-NATION
INDUSTRIAL INTERACTION, THAT I HAVE SET FORTH THE AGREEMENT IN FULL IN
AN APPENDIX.  PARTICULARLY WHEN DEALING WITH LEGAL ASPECTS OF
INDUSTRIAL RELATIONS IS IT IMPORTANT FOR COURTS NOT TO ISOLATE LEGAL
ISSUES FROM THEIR WORKADAY CONTEXT.  I CANNOT JOIN THE COURT'S OPINION
BECAUSE I READ IT TO MEAN THAT IT IS BEYOND THE POWER OF THE NATIONAL
BOARD TO AGREE WITH STATE AGENCIES ENFORCING LAWS LIKE THE WAGNER ACT
TO DIVIDE, WITH DUE REGARD TO LOCAL INTERESTS, THE DOMAIN OVER WHICH
CONGRESS HAD GIVEN THE NATIONAL BOARD ABSTRACT DISCRETION BUT WHICH,
PRACTICALLY, CANNOT BE COVERED BY IT ALONE.  IF SUCH COOPERATIVE
AGREEMENTS BETWEEN STATE AND NATIONAL BOARDS ARE BARRED BECAUSE THE
POWER WHICH CONGRESS HAS GRANTED TO THE NATIONAL BOARD OUSTED OR
SUPERSEDED STATE AUTHORITY, I AM UNABLE TO SEE HOW STATE AUTHORITY CAN
REVIVE BECAUSE CONGRESS HAS SEEN FIT TO PUT THE BOARD ON SHORT
RATIONS. 

SINCE WE ARE DEALING WITH ASPECTS OF COMMERCE BETWEEN THE STATES THAT
ARE NOT LEGALLY OUTSIDE STATE ACTION BY VIRTUE OF THE COMMERCE CLAUSE
ITSELF, NEW YORK HAS AUTHORITY TO ACT SO LONG AS CONGRESS HAS NOT
INTERDICTED HER ACTION.  WHILE WHAT THE STATE DOES SHE DOES ON
SUFFERANCE, IN ASCERTAINING WHETHER CONGRESS HAS ALLOWED STATE ACTION
WE ARE NOT TO CONSIDER THE MATTER AS THOUGH CONGRESS WERE CONFERRING A
MERE BOUNTY, THE EXTENT OF WHICH MUST BE VIEWED WITH A THRIFTY EYE. 
WHEN CONSTRUING FEDERAL LEGISLATION THAT DEALS WITH MATTERS THAT ALSO
LIE WITHIN THE AUTHORITY, BECAUSE WITHIN THE PROPER INTERESTS, OF THE
STATES, WE MUST BE MINDFUL THAT WE ARE PART OF THE DELICATE PROCESS OF
ADJUSTING THE INTERACTING AREAS OF NATIONAL AND STATE AUTHORITY OVER
COMMERCE.  THE INEVITABLE EXTENSION OF FEDERAL AUTHORITY OVER ECONOMIC
ENTERPRISE HAS ABSORBED THE AUTHORITY THAT WAS PREVIOUSLY LEFT TO THE
STATES.  BUT IN LEGISLATING, CONGRESS IS NOT INDULGING IN DOCTRINAIRE,
HARD-AND-FAST CURTAILMENT OF THE STATE POWERS REFLECTING SPECIAL STATE
INTERESTS.  FEDERAL LEGISLATION OF THIS CHARACTER MUST BE CONSTRUED
WITH DUE REGARD TO ACCOMMODATION BETWEEN THE ASSERTIONS OF NEW FEDERAL
AUTHORITY AND THE FUNCTIONS OF THE INDIVIDUAL STATES, AS REFLECTING THE
HISTORIC AND PERSISTENT CONCERNS OF OUR DUAL SYSTEM OF GOVERNMENT. 
SINCE CONGRESS CAN, IF IT CHOOSES, ENTIRELY DISPLACE THE STATES TO THE
FULL EXTENT OF THE FAR-REACHING COMMERCE CLAUSE, CONGRESS NEEDS NO HELP
FROM GENEROUS JUDICIAL IMPLICATIONS TO ACHIEVE THE SUPERSESSION OF
STATE AUTHORITY.  TO CONSTRUE FEDERAL LEGISLATION SO AS NOT NEEDLESSLY
TO FORBID PREEXISTING STATE AUTHORITY IS TO RESPECT OUR FEDERAL
SYSTEM.  ANY INDULGENCE IN CONSTRUCTION SHOULD BE IN FAVOR OF THE
STATES, BECAUSE CONGRESS CAN SPEAK WITH DRASTIC CLARITY WHENEVER IT
CHOOSES TO ASSURE FULL FEDERAL AUTHORITY, COMPLETELY DISPLACING THE
STATES. 

THIS IS AN OLD PROBLEM AND THE CONSIDERATIONS INVOLVED IN ITS
SOLUTION ARE COMMONPLACE.  BUT RESULTS NOT ALWAYS HARMONIOUS HAVE FROM
TIME TO TIME BEEN DRAWN FROM THE SAME PRECEPTS.  IN LAW ALSO THE
EMPHASIS MAKES THE SONG.  IT MAY MAKE A DECISIVE DIFFERENCE WHAT VIEW
JUDGES HAVE OF THE PLACE OF THE STATES IN OUR NATIONAL LIFE WHEN THEY
COME TO APPLY THE GOVERNING PRINCIPLE THAT FOR AN ACT OF CONGRESS
COMPLETELY TO DISPLACE A STATE LAW "THE REPUGNANCE OR CONFLICT SHOULD
BE DIRECT AND POSITIVE, SO THAT THE TWO ACTS COULD NOT BE RECONCILED OR
CONSISTENTLY STAND TOGETHER."  SINNOT V. DAVENPORT, 22 HOW.  227, 243. 
CONGRESS CAN SPEAK SO UNEQUIVOCALLY AS TO LEAVE NO DOUBT.  BUT REAL
CONTROVERSIES ARISE ONLY WHEN CONGRESS HAS LEFT THE MATTER IN DOUBT,
AND THEN THE RESULT DEPENDS ON WHETHER WE REQUIRE THAT ACTUAL CONFLICT
BETWEEN STATE AND FEDERAL ACTION BE SHOWN, OR WHETHER ARGUMENTATIVE
CONFLICT SUFFICES. 

OUR GENERAL PROBLEM WAS ONLY RECENTLY CANVASSED IN THE THREE OPINIONS
IN HILL V. FLORIDA, 325 U.S. 538.  BUT THE FREQUENT RECURRENCE OF THE
PROBLEM AND THE RESPECTIVE LEGISLATIVE AND JUDICIAL SHARE IN ITS PROPER
SOLUTION JUSTIFY SOME REPETITION.  IT MAY BE HELPFUL TO RECALL THE
CIRCUMSPECTION WITH WHICH FEDERAL ABSORPTION OF AUTHORITY PREVIOUSLY
BELONGING TO THE STATES WAS OBSERVED IN THE CONTROL OF RAILROAD RATES. 

IN THE MINNESOTA RATE CASES, 230 U.S. 352, THIS COURT, AFTER
ELABORATE ARGUMENT AND EXTENDED CONSIDERATION, HELD THAT STATE RATES
COVERING INTRASTATE TRANSPORTATION COULD NOT BE STRICKEN DOWN
JUDICIALLY EVEN THOUGH IT MAY BE SHOWN THAT SUCH RATES ADVERSELY AFFECT
CARRIERS IN THEIR INTERSTATE ASPECTS.  THIS DECISION WAS BASED LARGELY
ON THE RESPECT TO BE ACCORDED TO THE RESPECTIVE FUNCTIONS OF STATE AND
NATIONAL AUTHORITY, AS EVINCED BY CONGRESSIONAL AND JUDICIAL HISTORY. 
BUT A YEAR LATER, THE COURT HELD THAT WHEN THE INTERSTATE COMMERCE
COMMISSION FOUND THAT STATE REGULATION OF LOCAL RATES WAS DESIGNED TO
OPERATE DISCRIMINATORILY AGAINST RELATED INTERSTATE COMMERCE, THE
INTERSTATE COMMERCE ACT AUTHORIZED REMOVAL OF THE DISCRIMINATION
AGAINST THE INTERSTATE RATES.  HOUSTON, EAST AND WEST R. CO. V. UNITED
STATES, 234 U.S. 342.  NEVERTHELESS, SO IMPORTANT DID THIS COURT DEEM
RESPECT FOR STATE POWER THAT IT WOULD NOT ALLOW THE SHREVEPORT DOCTRINE
TO BE LOOSELY USED AS A CURTAILMENT OF STATE AUTHORITY.  ACCORDINGLY,
IT INSISTED ON PRECISION AND DEFINITENESS IN THE ORDERS OF THE
INTERSTATE COMMERCE COMMISSION IN THIS INTERACTING AREA.  ILLINOIS
CENTRAL R. CO. V. STATE PUBLIC UTILITIES COMMISSION, 245 U.S. 493. 
SUBSEQUENTLY, BY THE TRANSPORTATION ACT OF 1920, CONGRESS FORMALIZED
THE SHREVEPORT DOCTRINE AND EXTENDED ITS SCOPE.  THE COMMISSION WAS
EXPRESSLY AUTHORIZED TO CORRECT STATE RATES THAT WERE UNREASONABLE WITH
REFERENCE TO RELATED INTERSTATE RATES, AND WAS ALSO GIVEN CONTROL OVER
STATE RATES WHICH ADVERSELY AFFECTED INTERSTATE COMMERCE AS SUCH.  SEE
SEC. 13, PAR. 4 OF THE INTERSTATE COMMERCE ACT, AS AMENDED BY SECS. 416
AND 422 OF THE TRANSPORTATION ACT OF 1920, 41 STAT. 456, 484, 488;
WISCONSIN RAILROAD COMMISSION V. C.B. & Q.R.R. CO., 257 U.S. 563; NEW
YORK V. UNITED STATES, 257 U.S. 591.  IT IS NOT WITHOUT SIGNIFICANCE
THAT IN EXERCISING THIS NEW POWER CONGRESS ASSOCIATED WITH THE
INTERSTATE COMMERCE COMMISSION THE APPROPRIATE STATE AGENCIES IN AN
ADVISORY CAPACITY.  EVEN WHERE FOREIGN COMMERCE IS INVOLVED, AS TO
WHICH STATE CONTROL IS NATURALLY VIEWED WITH LESS FAVOR, THIS COURT HAS
NOT RULED OUT STATE AUTHORITY DERIVED FROM A STATE INTEREST WHERE STATE
REGULATION WAS FOUND TO BE COMPLEMENTARY TO FEDERAL REGULATION.  UNION
BROKERAGE CO. V. JENSEN, 322 U.S. 202, 208-09.    NO DOUBT, AS
INDICATED, CASES HAVE NOT ALWAYS DEALT WITH SUCH SCRUPULOUS REGARD FOR
STATE ACTION WHERE CONGRESS HAS NOT PATENTLY TERMINATED IT.  METAPHOR -
"OCCUPIED THE FIELD" - HAS AT TIMES DONE SERVICE FOR CLOSE ANALYSIS. 
BUT THE RULES OF ACCOMMODATION THAT HAVE BEEN MOST CONSISTENTLY
PROFESSED AS WELL AS THE DOMINANT CURRENT OF DECISIONS MAKE FOR AND NOT
AGAINST THE MODUS VIVENDI ACHIEVED BY THE TWO AGENCIES IN THE LABOR
RELATIONS FIELD, WHICH THE GOVERNMENT, AS AMICUS CURIAE, HERE
SPONSORED.  SUCH AN ARRANGEMENT ASSURES THE EFFECTUATION OF THE
POLICIES WHICH UNDERLIE BOTH THE NATIONAL LABOR RELATIONS ACT AND THE
"LITTLE WAGNER ACT" OF NEW YORK IN A MANNER AGREED UPON BY THE TWO
BOARDS FOR DEALING WITH MATTERS AFFECTING INTERESTS OF COMMON CONCERN. 
"WHERE THE GOVERNMENT HAS PROVIDED FOR COLLABORATION THE COURTS SHOULD
NOT FIND CONFLICT."  UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, 209. 

WHAT IS BEFORE US IS A VERY REAL AND PRACTICAL SITUATION.  THE VAST
RANGE OF JURISDICTION WHICH THE NATIONAL LABOR RELATIONS ACT HAS
CONFERRED UPON THE BOARD RAISES PROBLEMS OF ADMINISTRATION WHOLLY APART
FROM AVAILABLE FUNDS.  AS A RESULT OF THIS COURT'S DECISION IN NATIONAL
LABOR RELATIONS BOARD V. FAINBLATT, 306 U.S. 601, UNTOLD SMALL
ENTERPRISES ARE SUBJECT TO THE POWER OF THE BOARD.  WHILE LABOR
DIFFICULTIES IN THESE UNITS IN THE AGGREGATE MAY UNQUESTIONABLY HAVE
SERIOUS REPERCUSSIONS UPON INTERSTATE COMMERCE, IN THEIR INDIVIDUALIZED
ASPECTS THEY ARE EQUALLY THE CONCERN OF THEIR RESPECTIVE LOCALITIES. 
ACCORDINGLY, THE NATIONAL LABOR RELATIONS BOARD, INSTEAD OF VIEWING THE
ATTEMPT OF STATE AGENCIES TO ENFORCE THE PRINCIPLES OF COLLECTIVE
BARGAINING AS AN ENCROACHMENT UPON NATIONAL AUTHORITY, REGARDS THE AID
OF THE STATE AGENCIES AS AN EFFECTIVE MEANS OF ACCOMPLISHING A COMMON
END.  OF COURSE, AS MR. JUSTICE HOLMES SAID, "WHEN CONGRESS HAS TAKEN
THE PARTICULAR SUBJECT-MATTER IN HAND COINCIDENCE IS AS INEFFECTIVE AS
OPPOSITION" TO SAVE THE STATE LAW.  BUT SURELY THIS IS SO ONLY WHEN THE
STATE SEEKS "TO ENFORCE A STATE POLICY DIFFERENTLY CONCEIVED  ..." 
CHARLESTON & WESTERN CAROLINA R.R. CO. V. VARNVILLE FURNITURE COMPANY,
237 U.S. 597, 604. 

THE NATIONAL BOARD'S BUSINESS EXPLAINS THE REASON AND SUPPORTS THE
REASONABLENESS BEHIND ITS DESIRE TO SHARE BURDENS THAT MAY BE THE
STATE'S CONCERN NO LESS THAN THE NATION'S.  THE BOARD'S ANNUAL REPORTS
SHOW INCREASING ARREARS.  AT THE END OF THE FISCAL YEAR 1944, 2602
CASES WERE PENDING; AT THE END OF 1945, 3244; AT THE END OF 1946, THERE
WERE 4605 UNFINISHED CASES.  A SHREWD CRITIC HAS THUS EXPRESSED THE
CONSIDERATIONS THAT IN THE PAST HAVE OFTEN LAIN BELOW THE SURFACE OF
MERELY DOCTRINAL APPLICATIONS:  "FORMALLY THE ENTERPRISE IS ONE OF THE
INTERPRETATION OF THE ACT OF CONGRESS TO DISCOVER ITS SCOPE.  ACTUALLY
IT IS OFTEN THE ENTERPRISE OF REACHING A JUDGMENT WHETHER THE SITUATION
IS SO ADEQUATELY HANDLED BY NATIONAL PRESCRIPTION THAT THE IMPEDIMENT
OF FURTHER STATE REQUIREMENTS IS TO BE DEEMED A BANE RATHER THAN A
BLESSING."  T.R. POWELL, CURRENT CONFLICTS BETWEEN THE COMMERCE CLAUSE
AND STATE POLICE POWER, 12 MINN. L. REV. 607.  IN THE SUBMISSION BY THE
BOARD BEFORE US, WE HAVE THE MOST AUTHORITATIVE MANIFESTATION BY
NATIONAL AUTHORITY THAT STATE COLLABORATION WOULD BE A BLESSING RATHER
THAN A BANE, AND YET JUDICIAL CONSTRUCTION WOULD FORBID THE AID WHICH
THE AGENCY OF CONGRESS SEEKS IN CARRYING OUT ITS DUTY.  IT IS SURELY A
RESPONSIBLE INFERENCE THAT THE THE RESULT WILL BE TO LEAVE UNCONTROLLED
LARGE AREAS OF INDUSTRIAL CONFLICT.  NEITHER WHAT CONGRESS HAS SAID IN
THE NATIONAL LABOR RELATIONS ACT, NOR THE STRUCTURE OF THE ACT, NOR ITS
POLICY, NOR ITS ACTUAL OPERATION, SHOULD BE FOUND TO PROHIBIT THE BOARD
FROM EXERCISING ITS DISCRETION SO AS TO ENLIST THE AID OF AGENCIES
CHARGED WITH LIKE DUTIES WITHIN THE STATES IN ENFORCING A COMMON POLICY
BY A DISTRIBUTION OF CASES APPROPRIATE TO RESPECTIVE STATE AND NATIONAL
INTERESTS. 

                              APPENDIX. 

           DOCUMENTS INDICATING UNDERSTANDING BETWEEN THE NEW
YORK

           AND THE NATIONAL LABOR RELATIONS BOARDS       NEW YORK

           STATE LABOR RELATIONS BOARD             250 WEST 57TH

           STREET      NEW YORK 19 

WILLIAM E. GRADY, JR.

   GENERAL COUNSEL

                                      JULY 10, 1945. 

ALVIN J. ROCKWELL, ESQUIRE

   GENERAL COUNSEL,

  NATIONAL LABOR RELATIONS BOARD,   WASHINGTON, D.C. 

DEAR MR. ROCKWELL:  THE BOARD HAS EXAMINED YOUR MEMORANDUM OF OUR
CONFERENCE OF APRIL 20, 1945 AND CONSIDERS THAT IT REPRESENTS A FAIR
STATEMENT OF THE PROCEEDINGS. 

AS TO INSURANCE COMPANIES (PAGE 6 OF YOUR MEMO), YOU WILL RECALL THAT
WE MENTIONED OUR PRIOR EXPERIENCE WITH SUCH COMPANIES AND THE FACT THAT
UNITS OF LESS THAN STATE-WIDE SCOPE HAVE BEEN ESTABLISHED AND UPHELD BY
THE COURTS.  IN SUCH CASES, THEREFORE, WE THINK IT WOULD BE TO THE
BENEFIT OF BOTH BOARDS THAT YOU CLEAR WITH US.  A SITUATION MAY VERY
EASILY ARISE IN WHICH YOU WOULD PREFER TO HAVE US ENTERTAIN A PETITION
WHICH HAD BEEN FILED WITH US. 

BEST REGARDS. 

   SINCERELY,

                            /S/ WILLIAM E. GRADY, JR.

                            NATIONAL LABOR RELATIONS BOARD,

                            WASHINGTON 25, D.C., JULY 26, 1945. 

WILLIAM E. GRADY, JR.,

GENERAL COUNSEL,

   NEW YORK STATE LABOR RELATIONS BOARD,

   250 WEST 57TH STREET,

   NEW YORK CITY 19, N.Y. 

DEAR MR. GRADY:  IN MR. ROCKWELL'S ABSENCE ON VACATION THIS WEEK, I
AM REPLYING TO YOUR LETTER OF JULY 10. 

MR. ROCKWELL'S MEMORANDUM OF OUR CONFERENCE OF APRIL 20 AND YOUR
LETTER WERE DISCUSSED WITH AND APPROVED BY THE MEMBERS OF THE BOARD. 

WE ARE, ACCORDINGLY, CIRCULATING COPIES OF THIS MEMORANDUM TO THE
MEMBERS OF OUR STAFFS IN THE BUFFALO AND NEW YORK CITY OFFICES.  THIS
MEMORANDUM AND YOUR LETTER WILL HEREAFTER BE FOLLOWED AS A GUIDE IN
RELATIONS BETWEEN THE TWO BOARDS AS REGARDS CASES ARISING IN NEW YORK
STATE. 

        SINCERELY YOURS,                /S/  OSCAR S. SMITH

       OSCAR S. SMITH,                  DIRECTOR

  OF FIELD DIVISION. 

MEMORANDUM RE CONFERENCE BETWEEN REPRESENTATIVES OF NEW YORK STATE
LABOR RELATIONS BOARD AND NATIONAL LABOR RELATIONS BOARD, HELD FRIDAY,
APRIL 20, 1945 

A CONFERENCE WAS HELD AT THE OFFICES OF THE NEW YORK STATE LABOR
RELATIONS BOARD ON FRIDAY, APRIL 20, 1945, ATTENDED BY FATHER KELLEY,
CHAIRMAN, AND BOARD MEMBERS GOLDBERG AND LORENZ, EXECUTIVE SECRETARY
GOLDBERG, GENERAL COUNSEL GRADY, AND ASSOCIATE GENERAL COUNSEL
FELDBLUM, OF THE NEW YORK STATE LABOR RELATIONS BOARD, AND BY FIELD
DIRECTOR SMITH, NEW YORK REGIONAL DIRECTOR HOWARD LEBARON, GENERAL
COUNSEL ROCKWELL, AND NEW YORK REGIONAL ATTORNEY PERL, OF THE NATIONAL
LABOR RELATIONS BOARD.  THE SUBJECT OF THE CONFERENCE WAS THE PROPER
DIVISION OF JURISDICTION BETWEEN THE NATIONAL AND STATE BOARDS. 

THIS CONFERENCE FOLLOWED AN EARLIER CONFERENCE HELD ON JANUARY 9,
1945, IN WASHINGTON, BETWEEN MESSRS.  SMITH AND ROCKWELL AND BUFFALO
REGIONAL DIRECTOR RYDER, REPRESENTING THE NLRB, AND MESSRS.  GOLDBERG
AND FELDBLUM, REPRESENTING THE NEW YORK BOARD.  AT THE CONFERENCE IN
WASHINGTON, THE PRINCIPAL SUBJECT DISCUSSED WAS THE ACTION OF THE STATE
BOARD IN ENTERTAINING ELECTION PETITIONS INVOLVING THE EMPLOYEES OF
LARGE INTERSTATE MANUFACTURING ESTABLISHMENTS OVER WHICH THE NATIONAL
BOARD HAS CUSTOMARILY ASSERTED JURISDICTION.  THE CASES IN QUESTION
RELATED TO PETITIONS FILED BY LABOR ORGANIZATIONS WHICH SOUGHT TO BE
CERTIFIED AS REPRESENTATIVES OF UNITS OF SUPERVISORY EMPLOYEES OR, IN
ONE CASE, A LABOR ORGANIZATION WHICH SOUGHT TO REPRESENT NON
SUPERVISORY EMPLOYEES BUT WHOSE MEMBERSHIP WAS COMPOSED OF A
SUBSTANTIAL NUMBER OF SUPERVISORS.  AT THE TIME OF THE JANUARY
CONFERENCE, THE BOARD'S DECISION IN THE PACKARD CASE, 61 N.L.R.B., NO.
3, HAD NOT BEEN ISSUED; IT APPEARED THAT IN CERTIFYING A LABOR
ORGANIZATION FOR SUPERVISORY EMPLOYEES THE STATE BOARD WAS TAKING
ACTION CONTRARY TO THAT WHICH WOULD HAVE BEEN TAKEN BY THE NATIONAL
BOARD HAD THE PETITION BEEN FILED WITH IT.  IT WAS ALSO BELIEVED THAT
THE ACTION OF THE STATE BOARD IN PROCEEDING TO A CERTIFICATION OF A
LABOR ORGANIZATION FOR NON-SUPERVISORY EMPLOYEES WHOSE MEMBERSHIP
INCLUDED SUPERVISORS IN SUBSTANTIAL NUMBER MIGHT BE CONTRARY TO THE
NATIONAL BOARD'S DISPOSITION OF THE CASE UNDER ITS DECISION IN MATTER
OF ROCHESTER & PITTSBURGH COAL CO., 56 N.L.R.B. 1760.  NO UNDERSTANDING
WAS REACHED WITH REGARD TO THESE TYPES OF CASES AT THE JANUARY
CONFERENCE.  IN THE MEANTIME, ON MARCH 26, 1945, THE BOARD ISSUED ITS
DECISION IN THE PACKARD CASE, HOLDING THAT IT WOULD PROCEED TO CERTIFY
UNAFFILIATED UNIONS AS REPRESENTATIVE OF SUPERVISORY EMPLOYEES AND
LEAVING OPEN THE QUESTION OF WHETHER IT WOULD PROCEED TO CERTIFY
AFFILIATED UNIONS AS SUCH REPRESENTATIVES.  THE NEW YORK CONFERENCE WAS
ARRANGED IN ORDER TO DISCUSS THE TYPES OF CASES WHICH WERE THE SUBJECT
OF THE JANUARY CONFERENCE AND ALSO TO CANVASS IN GENERAL THE QUESTION
OF THE RESPECTIVE JURISDICTIONS OF THE TWO BOARDS. 

THE NEW YORK CONFERENCE BEGAN WITH CONSIDERATION OF FATHER BOLAND'S
LETTER TO MR. MADDEN DATED JULY 12, 1937, WHICH HAS CONSTITUTED THE
PRINCIPAL BASIS OF UNDERSTANDING BETWEEN THE TWO BOARDS DURING THE
ENSUING YEARS.  THE BOLAND LETTER STATES: 

UNLESS THERE ARE UNUSUAL CIRCUMSTANCES, THE NEW YORK STATE LABOR
RELATIONS BOARD WILL ASSUME JURISDICTION OVER ALL CASES ARISING IN THE
FOLLOWING TRADES AND INDUSTRIES, WITHOUT CLEARING, EXCEPT AS A MATTER
OF RECORD, WITH THE NATIONAL BOARD'S OFFICIALS: 

1.  RETAIL STORES, 

2.  SMALL INDUSTRIES WHICH RECEIVE ALL OR PRACTICALLY ALL RAW
MATERIALS FROM WITHIN THE STATE OF NEW YORK, AND DO NOT SHIP ANY
MATERIAL PROPORTION OF THEIR PRODUCT OUTSIDE THE STATE, 

3.  SERVICE TRADES (SUCH AS LAUNDRIES), 

4.  OFFICE AND RESIDENTIAL BUILDINGS, 

5.  SMALL AND CLEARLY LOCAL PUBLIC UTILITIES, (THIS INCLUDES LOCAL
TRACTION COMPANIES, AS WELL AS GAS AND ELECTRIC LIGHT CORPORATIONS.) 

6.  STORAGE WAREHOUSES, 

7.  CONSTRUCTION OPERATIONS, 

8.  OTHER OBVIOUSLY LOCAL BUSINESSES. 

A COPY OF THE LETTER OF JULY 12, 1937, IS ATTACHED TO THIS
MEMORANDUM. 

AT THE TIME OF THE PREPARATION OF THE LETTER OF JULY 12 AND THE
CONFERENCE WHICH PRECEDED IT AND UPON WHICH IT IS BASED, THERE WAS
RELATIVELY LITTLE CASE LAW AS TO THE JURISDICTION UNDER THE COMMERCE
CLAUSE OF THE NATIONAL BOARD UNDER THE NATIONAL ACT.  SINCE THAT TIME
THERE HAS BEEN A LARGE NUMBER OF DECISIONS IN THE FEDERAL CIRCUIT
COURTS OF APPEALS AND SEVERAL IN THE SUPREME COURT WHICH HAVE
SUBSTANTIALLY EXTENDED THE BOARD'S JURISDICTION BEYOND THAT WHICH WAS
UNDERSTOOD TO EXIST IN JULY 1937.  TO TAKE ONLY ONE PERTINENT EXAMPLE:
IN JULY 1937 THE BOARD HAD NOT ASSERTED JURISDICTION OVER RETAIL
ESTABLISHMENTS.  SINCE 1937 THE BOARD HAS ACCEPTED A CONSIDERABLE
NUMBER OF CASES INVOLVING RETAIL ESTABLISHMENTS SUCH AS DEPARTMENT
STORES AND THE BOARD'S POWER IN THIS RESPECT HAS BEEN SUSTAINED BY THE
COURTS.  NOTWITHSTANDING THIS EXTENSION OF JURISDICTION UNDER THE
NATIONAL ACT, THE NATIONAL AND STATE BOARDS, RESPECTIVELY, HAVE, IN
GENERAL, FOLLOWED THE UNDERSTANDING REFLECTED BY THE LETTER OF JULY 12,
1937.  THUS, IN NEW YORK STATE THE NATIONAL BOARD HAS NOT ASSERTED
JURISDICTION OVER RETAIL ESTABLISHMENTS.  THE REPRESENTATIVES AT THE
CONFERENCE OF APRIL 20 EXPRESSED THE VIEW THAT, BY AND LARGE, THE
UNDERSTANDING HAD WORKED OUT WELL AS APPLIED TO THE TYPES OF BUSINESSES
THERE DEALT WITH.  THE POSITION WAS REPEATEDLY EXPRESSED BY THE
REPRESENTATIVES OF BOTH NATIONAL AND STATE BOARDS THAT AS A WORKING
MATTER THE JURISDICTION BETWEEN THE TWO BOARDS MUST BE ALLOTTED ON THE
BASIS OF THE TYPE OF INDUSTRY OR BUSINESS INVOLVED (RATHER, FOR
EXAMPLE, THAN ON THE BASIS OF WHICH BOARD A PETITION OR CHARGE IS
INITIALLY FILED WITH), AND THAT WHEN ONE BOARD, PURSUANT TO COMMON
UNDERSTANDING, HAS ASSERTED JURISDICTION IN THE PAST OVER A PARTICULAR
EMPLOYER, THE OTHER BOARD SHOULD THEREAFTER REFER ANY MATTERS COMING TO
IT TO THE BOARD WHICH HAD ENTERTAINED THE EARLIER CASE OR CASES.  FN1 

FOLLOWING REFERENCE TO THE LETTER OF JULY 12, THERE WAS DETAILED
DISCUSSION OF THE EIGHT CATEGORIES THERE LISTED, WHICH ARE QUOTED
ABOVE.  THE GIST OF THIS DISCUSSION WAS AS FOLLOWS: RETAIL STORES. 
WHERE THE SAME COMPANY OPERATES RETAIL STORES AND ALSO DOES A
SUBSTANTIAL INTERSTATE MAIL ORDER BUSINESS FROM WITHIN NEW YORK STATE,
REPRESENTATIVES OF THE NATIONAL BOARD POINTED OUT THAT PROBABLY THE
NATIONAL ACT SHOULD BE APPLIED TO THE COMPANY.  THE UNDERSTANDING WAS
REACHED THAT BEFORE THE STATE BOARD ASSERTED JURISDICTION IN THE FUTURE
OVER ANY SUCH COMPANIES, THE CASE WOULD BE CLEARED WITH THE NATIONAL
BOARD THROUGH THE NEW YORK CITY OR BUFFALO OFFICES, DEPENDING UPON THE
REGION IN WHICH THE CASE AROSE.  SERVICE TRADES.  WHERE A NEW YORK
CONCERN IS IN THE BUSINESS OF FURNISHING GUARDS, WINDOW WASHERS,
LAUNDRY, OR SOME OTHER TYPE OF SERVICE WITHIN THE STATE, IT WAS FELT
THAT THE BUSINESS IS ESSENTIALLY LOCAL IN CHARACTER AND SHOULD BE
SUBJECT TO THE STATE ACT EVEN THOUGH THE SERVICES ARE FURNISHED TO A
NUMBER OF LARGE INTERSTATE ENTERPRISES, WHICH IN THEMSELVES ARE SUBJECT
TO THE JURISDICTION OF THE NATIONAL ACT.  (AN EXCEPTION IS THE CASE OF
DETECTIVE AGENCIES DOING BUSINESS ON A NATIONAL SCALE, CONCERNING
WHICH, IT IS UNDERSTOOD, THE STATE BOARD WILL CLEAR WITH THE NATIONAL
BOARD BEFORE ASSERTING JURISDICTION.)  ON THE OTHER HAND, WHERE THE
INTERSTATE ENTERPRISE, OVER WHICH THE NATIONAL BOARD WOULD CUSTOMARILY
ASSERT JURISDICTION, SUPPLIES ITS OWN GUARD, WINDOW WASHING, LAUNDRY,
OR OTHER SERVICE FOR ITSELF, IT WAS BELIEVED THAT THE EMPLOYEES
INVOLVED WOULD RIGHTLY COME WITHIN THE JURISDICTION OF THE NATIONAL
ACT.  THE TEST HERE IS WHETHER THE SERVICE IS PERFORMED BY A SEPARATE
BUSINESS ESTABLISHMENT WHICH CAN PROPERLY BE CONSIDERED A LOCAL
ENTERPRISE, EVEN THOUGH SERVICES ARE RENDERED TO INTERSTATE BUSINESSES,
OR WHETHER THE SERVICE IS RENDERED BY THE INTERSTATE ENTERPRISE ITSELF
AS AN INCIDENT OF ITS OWN BUSINESS.  OFFICE BUILDINGS.  THE SAME TEST
APPLICABLE TO THE SERVICE TRADES WAS ALSO THOUGHT TO BE APPLICABLE TO
OFFICE BUILDINGS.  THUS, IF THE EMPLOYER INVOLVED IS IN THE BUSINESS OF
OPERATING OFFICE BUILDINGS HE IS SUBJECT TO THE STATE ACT EVEN THOUGH
TENANTS CONSIST OF INTERSTATE ENTERPRISES.  ON THE OTHER HAND, WHERE
THE OFFICE BUILDING IS OWNED OR OPERATED, OR BOTH, BY AN INTERSTATE
ENTERPRISE, OVER WHICH THE NATIONAL BOARD WOULD CUSTOMARILY ASSERT
JURISDICTION, AND IS USED BY THE INTERSTATE ENTERPRISE IN CONDUCTING
ITS INTERSTATE BUSINESS, THE NATIONAL BOARD WOULD EXPECT TO ASSERT
JURISDICTION.  PUBLIC UTILITIES.  IT WAS AGREED THAT THE NEW YORK BOARD
COULD PROPERLY ASSERT JURISDICTION OVER SUCH UTILITIES, INCLUDING
ELECTRIC, GAS, TRACTION, BUS COMPANIES, AND THE LIKE WHICH ARE NOT
THEMSELVES ENGAGED IN SUPPLYING SERVICE ACROSS THE STATE LINE.  IN
SHORT, WHERE THE NATIONAL BOARD COULD ONLY BASE ITS JURISDICTION ON THE
"AFFECTING COMMERCE" PRINCIPLE (PLUS THE SHIPMENT INTO THE STATE OF
FUEL AND CAPITAL EQUIPMENT, NOT FOR RESALE), IT WAS BELIEVED IN GENERAL
THAT THE NATIONAL BOARD COULD PROPERLY LEAVE JURISDICTION TO THE STATE
BOARD.  AN EXCEPTION TO THIS WORKING RULE IS PROVIDED BY A FEW VERY
LARGE UTILITIES, SUCH AS THE CONSOLIDATED EDISON COMPANY, OVER WHICH
THE NATIONAL BOARD ORIGINALLY ASSERTED JURISDICTION.  WAREHOUSES.  THE
TEST APPLIED IN THE CASE OF SERVICE TRADES AND OFFICE BUILDINGS SEEMS
APPLICABLE TO WAREHOUSES, THE QUESTION BEING WHETHER THEY ARE OPERATED
AS SEPARATE LOCAL ENTERPRISES OR AS INCIDENTS OF THE OPERATION OF
INTERSTATE BUSINESS OVER WHICH THE NATIONAL BOARD WOULD CUSTOMARILY
TAKE JURISDICTION.  CONSTRUCTION BUSINESS.  THE NEW YORK BOARD IS
EXPECTED TO ASSERT JURISDICTION OVER THE CONSTRUCTION INDUSTRY EXCEPT,
FOR EXAMPLE, IN THE CASE OF THE CONSTRUCTION OF SHIPS, WHICH IS THOUGHT
OF AS FALLING WITHIN THE FIELD OF MANUFACTURING, OVER WHICH, IN
GENERAL, THE NATIONAL BOARD ASSERTS JURISDICTION. 

IN ADDITION TO THE FOREGOING LINES OF ACTIVITY, REFERRED TO IN THE
LETTER OF JULY 12, 1937, TWO OTHER BUSINESSES NOT DEALT WITH IN THAT
LETTER WERE ALSO DISCUSSED.  INSURANCE COMPANIES.  IN THE PAST BOTH THE
STATE AND THE NATIONAL BOARDS HAVE INTERMITTENTLY ASSERTED JURISDICTION
OVER INSURANCE COMPANIES.  SO FAR AS SMALL INSURANCE, BONDING, CASUALTY
COMPANIES, ETC., DOING BUSINESS PRIMARILY WITHIN THE STATE ARE
CONCERNED, IT WAS FELT THAT THE STATE BOARD SHOULD OCCUPY THIS FIELD. 
SO FAR AS THE LARGE NATIONAL COMPANIES ARE CONCERNED, HOWEVER, THE
REPRESENTATIVES OF THE NATIONAL BOARD EXPRESSED THE VIEW THAT HEREAFTER
CASES INVOLVING SUCH COMPANIES SHOULD BE HANDLED BY THE LATTER BOARD. 
IN THIS CONNECTION IT WAS POINTED OUT THAT AS ORGANIZATION HAS MATURED
AMONG THE LARGE COMPANIES, STATE-WIDE AND EVEN LARGER UNITS ARE BEING
ESTABLISHED AND THAT THIS TYPE OF ACTIVITY HAD THEREFORE ADVANCED TO
THE STAGE WHERE IT WAS PECULIARLY THE INTEREST OF THE NATIONAL BOARD. 
IT WAS AGREED THAT THE STATE BOARD WOULD NOT ENTERTAIN ANY CASES
INVOLVING THE LARGE NATIONAL COMPANIES WITHOUT PRIOR CLEARANCE WITH THE
NATIONAL BOARD.  NEWSPAPERS.  THE NATIONAL BOARD HAS TAKEN JURISDICTION
OVER LARGE DAILY NEWSPAPERS IN NEW YORK AND OTHER STATES AND, WHERE
CHALLENGED, HAS BEEN UNIFORMLY SUSTAINED IN THIS BY THE COURTS.  AT THE
SAME TIME, THE CIRCULATION DEPARTMENTS OF SUCH NEWSPAPERS, TO THE
EXTENT THAT THE DISTRIBUTING ACTIVITY IS CONFINED WITHIN A SINGLE
STATE, ARE IN MANY ASPECTS LOCAL IN CHARACTER.  IN NEW YORK STATE, AND
PARTICULARLY IN NEW YORK CITY, WHERE NEWS VENDORS ARE SUBJECT TO LOCAL
LICENSING REQUIREMENTS, THE NATIONAL BOARD FEELS THAT CASES INVOLVING
THE DISTRIBUTION OF NEWSPAPERS SHOULD PROPERLY BE HANDLED BY THE STATE
BOARD.  CONSISTENT WITH THIS APPROACH, THE NEW YORK REGIONAL OFFICE OF
THE NATIONAL BOARD HAS RECENTLY REFERRED TO THE STATE BOARD NEWS VENDOR
CASES INVOLVING FOUR OF THE LARGEST AFTERNOON NEWSPAPERS IN NEW YORK
CITY.  THE REPRESENTATIVES OF THE STATE BOARD EXPRESSED AGREEMENT WITH
THIS APPROACH AND INDICATED THAT THE PROPER LINE OF DIVISION MIGHT COME
AT THE LEVEL OF THE CIRCULATION MANAGERS.  IT WAS AGREED THAT HEREAFTER
NEITHER BOARD WILL ACCEPT CASES AT THE CIRCULATION MANAGER LEVEL
WITHOUT PRIOR CLEARANCE WITH THE OTHER BOARD; THAT CASES ABOVE THIS
LEVEL WILL BE HANDLED BY THE NATIONAL BOARD; AND THAT CASES BELOW THIS
LEVEL WILL BE HANDLED BY THE STATE BOARD.  OF COURSE, SMALL NEWSPAPERS
OF LIMITED CIRCULATION WILL PROPERLY BE HANDLED BY THE STATE BOARD. 

CONCURRENT JURISDICTION.  FN2  THE LETTER OF JULY 12, 1937, LEFT OPEN
THE QUESTION OF "CONCURRENT JURISDICTION" - BY WHICH, IT IS UNDERSTOOD,
WAS MEANT THE PROCEDURE TO BE FOLLOWED IN THE CASE OF EMPLOYERS WHO
MIGHT SIMULTANEOUSLY BE SUBJECT TO THE REQUIREMENTS OF BOTH THE STATE
AND NATIONAL ACTS.  THE LETTER STATED:  "SO FAR AS CONCURRENT
JURISDICTION IS CONCERNED, WE ASSUME THAT EVEN A TENTATIVE
UNDERSTANDING MUST AWAIT MUTUAL STUDY OF THE MEMORANDUM WHICH MR. FAHY
IS NOW PREPARING."  IT APPEARS THAT THE MEMORANDUM REFERRED TO WAS
NEVER PREPARED AND THAT NO SUBSEQUENT UNDERSTANDING WAS REACHED AS TO
SUCH CONCURRENT JURISDICTION.  IN PRACTICE, THIS DOES NOT SEEM TO HAVE
BEEN A PROBLEM, EXCEPT IN THE SITUATION DISCUSSED BELOW, SINCE THE
STATE BOARD HAS BY AND LARGE CONFINED ITS ACTIVITIES TO THE BUSINESSES
DETAILED IN THE LETTER OF JULY 12 AND THE NATIONAL BOARD IN TURN HAS
LEFT THIS FIELD OPEN TO THE STATE BOARD.  THE PROBLEM OF SO-CALLED
"CONCURRENT JURISDICTION" HAS ARISEN IN RECENT MONTHS BECAUSE,
FOLLOWING THE NATIONAL BOARD'S DECISION IN MATTER OF MARYLAND DRYDOCK
COMPANY, 49 N.L.R.B. 733, A NUMBER OF LABOR ORGANIZATIONS HAVE FILED
ELECTION PETITIONS WITH THE STATE BOARD WHICH THEY KNEW WOULD NOT BE
ENTERTAINED BY THE NATIONAL BOARD.  (SEE THE SECOND PARAGRAPH OF THIS
MEMORANDUM, ABOVE, CONCERNING THE CONFERENCE OF JANUARY 9, 1945, IN
WASHINGTON.)  PRIOR TO THE MARYLAND DRYDOCK CASE, THE STATE BOARD, IT
IS UNDERSTOOD, HAD REFRAINED FROM ENTERTAINING CASES INVOLVING LARGE
INTERSTATE MANUFACTURERS AND THE NATIONAL BOARD HAD ASSERTED EXCLUSIVE
JURISDICTION OVER SUCH EMPLOYERS. 

AT THE CONFERENCE OF APRIL 20 THE REPRESENTATIVES OF THE NATIONAL
BOARD POINTED TO THE RECENT DECISION IN THE PACKARD CASE AND SUGGESTED
THAT THE STATE BOARD SHOULD ADHERE TO ITS GENERAL POLICY OF LEAVING ALL
CASES INVOLVING LARGE MANUFACTURING ESTABLISHMENTS DOING INTERSTATE
BUSINESS TO THE NATIONAL BOARD.  THE IMPRACTICABILITY OF BOTH BOARDS
INTERMITTENTLY ASSERTING JURISDICTION OVER THE SAME EMPLOYER WAS
EMPHASIZED, AND IN ADDITION THE QUESTION WAS RAISED WHETHER UNDER THE
FEDERAL CONSTITUTION THE STATE BOARD COULD LAWFULLY ENFORCE ANY
REQUIREMENT AGAINST SUCH EMPLOYERS WHICH WAS INCONSISTENT WITH OR WHICH
IMPOSED RESTRAINTS IN ADDITION TO THOSE ENFORCED BY THE NATIONAL
BOARD.  THE REPRESENTATIVES OF THE NEW YORK BOARD AGREED THAT CASES OF
THIS TYPE PRESENTED A LEGAL PROBLEM BUT WERE OF THE VIEW THAT IT WAS
ADVISABLE FOR THE STATE BOARD TO ENTERTAIN ELECTION PETITIONS FOR UNITS
OF SUPERVISORY EMPLOYEES WHERE IT WAS DOUBTFUL WHETHER THE NATIONAL
BOARD WOULD PROCEED WITH THE CASE WERE IT FILED WITH THE LATTER BOARD. 
THE REPRESENTATIVES OF THE NEW YORK BOARD POINTED TO THEIR OBLIGATION
TO CONTRIBUTE TO THE MAINTENANCE OF INDUSTRIAL PEACE WITHIN THE BORDERS
OF NEW YORK STATE AND RECALLED A PROVISION OF THE NEW YORK CONSTITUTION
WHICH GUARANTEES ORGANIZATIONAL RIGHTS TO ALL EMPLOYEES.  THE
REPRESENTATIVES OF THE LATTER BOARD AGREED, HOWEVER, THAT THEIR
OFFICIALS SHOULD NOT REACH OUT FOR CASES OF THIS CHARACTER, INVOLVING
LARGE INTERSTATE MANUFACTURERS, AND THAT THEY WOULD KEEP THE NATIONAL
BOARD ADVISED AS TO ALL SUCH CASES THEY DECIDED TO ENTERTAIN.  THUS, NO
BROAD UNDERSTANDING WAS REACHED ON THIS SCORE, BOTH BOARDS RESERVING
THEIR RESPECTIVE POSITIONS WITH REGARD TO PETITIONS FOR UNITS OF
SUPERVISORY EMPLOYEES AND OTHER PETITIONS INVOLVING LARGE INTERSTATE
MANUFACTURERS. 

IT WAS BELIEVED THAT IT WOULD BE HELPFUL TO THE WORK OF BOTH BOARDS
IF LISTS OF CASES ENTERTAINED WITHIN THE STATE WERE PERIODICALLY
EXCHANGED.  THE DETAILS OF THIS WERE LEFT TO BE WORKED OUT. 

                 NEW YORK STATE LABOR RELATIONS BOARD,

                                      JULY 12, 1937. 

HONORABLE J. WARREN MADDEN,

   NATIONAL LABOR RELATIONS BOARD,

                            WASHINGTON, D.C. 

DEAR MR. MADDEN:  WE WISH, IN THE FIRST PLACE, TO THANK YOU AND YOUR
COLLEAGUES FOR YOUR WARM RECEPTION OF LAST WEDNESDAY.  IT IS GRATIFYING
TO KNOW THAT WE CAN LOOK FORWARD TO SUCH WHOLEHEARTED COOPERATION FROM
YOUR BOARD AND ITS STAFF.  WE WILL GLADLY RECIPROCATE. 

AS REQUESTED, WE OUTLINE OUR RECOLLECTION OF THE UNDERSTANDINGS
REACHED.  SO FAR AS CONCURRENT JURISDICTION IS CONCERNED, WE ASSUME
THAT EVEN A TENTATIVE UNDERSTANDING MUST AWAIT MUTUAL STUDY OF THE
MEMORANDUM WHICH MR. FAHY IS NOW PREPARING. 

UNLESS THERE ARE UNUSUAL CIRCUMSTANCES, THE NEW YORK STATE LABOR
RELATIONS BOARD WILL ASSUME JURISDICTION OVER ALL CASES ARISING IN THE
FOLLOWING TRADES AND INDUSTRIES, WITHOUT CLEARING, EXCEPT AS A MATTER
OF RECORD, WITH THE NATIONAL BOARD'S OFFICIALS: 

1.  RETAIL STORES, 

2.  SMALL INDUSTRIES WHICH RECEIVE ALL OR PRACTICALLY ALL RAW
MATERIALS FROM WITHIN THE STATE OF NEW YORK, AND DO NOT SHIP ANY
MATERIAL PROPORTION OF THEIR PRODUCT OUTSIDE THE STATE, 

3.  SERVICE TRADES (SUCH AS LAUNDRIES), 

4.  OFFICE AND RESIDENTIAL BUILDINGS, 

5.  SMALL AND CLEARLY LOCAL PUBLIC UTILITIES, (THIS INCLUDES LOCAL
TRACTION COMPANIES, AS WELL AS GAS AND ELECTRIC LIGHT CORPORATIONS), 

6.  STORAGE WAREHOUSES, 

7.  CONSTRUCTION OPERATIONS, 

8.  OTHER OBVIOUSLY LOCAL BUSINESSES. 

CLEARANCE IS CERTAINLY GOING TO BE REQUIRED IN THE CASE OF INDUSTRIES
WHERE THE RAW MATERIALS OR MOST OF THEM COME FROM WITHOUT THE STATE,
BUT THE PRODUCT IS NOT SHIPPED BEYOND THE BORDERS OF NEW YORK.  (THE
QUESTION HERE IS AS TO THE BREADTH OF APPLICATION OF THE "COME TO REST"
DOCTRINE OF THE SCHECHTER CASE.) 

YOU ARE FAMILIAR, OF COURSE, WITH SECTION 715 OF OUR STATUTE, PART OF
WHICH READS AS FOLLOWS: "APPLICATION OF ARTICLE.  THE PROVISIONS OF
THIS ARTICLE SHALL NOT APPLY TO THE EMPLOYEES OF ANY EMPLOYER WHO
CONCEDES TO AND AGREES WITH THE BOARD THAT SUCH EMPLOYEES ARE SUBJECT
TO AND PROTECTED BY THE PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT
OR THE FEDERAL RAILWAY LABOR ACT ...".  THE NEW YORK STATE BOARD WILL
UNDOUBTEDLY TAKE THE POSITION THAT THE WORDS "AGREES WITH" CONTEMPLATE
THE NECESSITY OF OUR BOARD'S AGREEING WITH THE EMPLOYER THAT HIS
EMPLOYEES ARE SUBJECT TO THE NATIONAL STATUTE, AND THAT NO EMPLOYER CAN
BY UNILATERAL ACTION SELECT HIS JURISDICTION. 

THIS HOWEVER, DOES NOT SOLVE ALL OF THE PROBLEMS CREATED BY THE
THE EMPLOYER WILL NOT NECESSARILY BESTOW FEDERAL JURISDICTION UNDER THE
CONSTITUTION.  PRESUMABLY EVERY TIME SUCH A CONCESSION IS PROFFERED BY
AN EMPLOYER, OUR BOARD WILL HAVE TO CLEAR WITH THE NATIONAL BOARD
OFFICIALS IN THE SAME WAY IT WOULD CLEAR WITH THEM IF NO SUCH
CONCESSION WERE MADE. 

IT IS OUR UNDERSTANDING THAT WE SHOULD CLEAR ON ALL QUESTIONS OF
JURISDICTION WITH THE REGIONAL DIRECTORS IN NEW YORK CITY AND BUFFALO
IN THE FIRST INSTANCE, AND THAT YOU WILL INSTRUCT YOUR DIRECTORS TO
RECIPROCATE BY CLEARING WITH US ALL DOUBTFUL CASES WHICH FIRST COME TO
THEIR ATTENTION. 

WHENEVER THIS BOARD AND EITHER OF YOUR REGIONAL DIRECTORS FIND
THEMSELVES UNABLE TO AGREE, THE MATTER WILL BE TAKEN UP WITH YOU AT
ONCE. 

WE WOULD APPRECIATE KNOWING THAT YOUR RECOLLECTION AND UNDERSTANDING
OF THE ABOVE ARE IN ACCORD WITH OUR OWN. 

        VERY SINCERELY YOURS,          S/ JOHN P. BOLAND

                        (DR.)  JOHN P. BOLAND, CHAIRMAN. 

           NATIONAL LABOR RELATIONS BOARD            MINUTES OF

           AUGUST 16, 1946 

AN INFORMAL INQUIRY WAS MADE TO THE BOARD BY UNITED FINANCIAL
EMPLOYEES ASSOCIATION ASKING WHETHER THE BOARD WOULD ENTERTAIN A
UPHAM AND COMPANY, A NEW YORK BROKERAGE HOUSE.  THE BOARD WAS ALSO
ADVISED THAT SIMILAR PETITIONS WERE CONTEMPLATED FOR THE EMPLOYEES OF A
NUMBER OF SIMILAR NEW YORK BROKERAGE HOUSES.  THE BOARD CONCLUDED THAT
IT WOULD NOT, AT THIS TIME, ENTERTAIN A PETITION FILED ON BEHALF OF THE
EMPLOYEES OF HARRIS UPHAM AND COMPANY OR OTHER SUCH BROKERAGE HOUSES
BECAUSE OF BUDGETARY AND OTHER ADMINISTRATIVE CONSIDERATIONS.  THE
BOARD FURTHER CONCLUDED THAT, IN VIEW OF THIS DISPOSITION, IT HAD NO
OBJECTION TO HAVING THE STATE LABOR RELATIONS BOARD OF THE STATE OF NEW
YORK ENTERTAIN SUCH PETITIONS FILED UNDER THE STATE ACT. 

DATED AT WASHINGTON, D.C.

   AUGUST 16, 1946. 

                            DONN N. BENT

                    DONN N. BENT,

    EXECUTIVE SECRETARY. 

APPROVED:

   S/ P.M.H.

  S/ J.M.H. 

CERTIFIED TO BE A TRUE AND CORRECT COPY. 

                            S/ DONN N. BENT,

                   DONN N. BENT,

       EXECUTIVE SECRETARY. 

FN1  IN CONSOLIDATED EDISON CO. V. N.L.R.B., 305 U.S. 197, 223, THE
SUPREME COURT INDICATED THAT IN DECIDING WHETHER OR NOT TO ASSERT
JURISDICTION THE NATIONAL BOARD COULD PROPERLY TAKE INTO ACCOUNT THE
EXISTENCE OF STATE PROTECTIVE LEGISLATION, SUCH AS THE NEW YORK STATE
LABOR RELATIONS ACT. 

THE NATIONAL ACT CONTAINS NO PROVISION AUTHORIZING THE NATIONAL BOARD
TO ENTER INTO COMPACTS OR AGREEMENTS WITH STATE BOARDS, BUT WOULD SEEM
TO REQUIRE THE NATIONAL BOARD IN EACH CASE TO EXERCISE ITS DISCRETION
WHETHER OR NOT TO PROCEED.  IT IS BELIEVED, NEVERTHELESS, THAT
UNDERSTANDINGS SUCH AS THAT EMBODIED IN THE LETTER OF JULY 12, 1937,
ALTHOUGH OF NO LEGAL EFFECT, ASSIST BOTH BOARDS IN DETERMINING THE
PROPER DISPOSITION OF PARTICULAR CASES AS THEY ARISE. 

FN2  SEE DAVEGA-CITY RADIO, INC. V. NEW YORK LABOR RELATIONS BOARD,
281 N.Y. 13; 22 N.E. 2ND 145; 4 L.R.R. MAN.  899.  (JULY 11, 1939.) 
..END :





WALLING V. GENERAL INDUSTRIES CO., 330 U.S. 545 


NO. 564.  ARGUED FEBRUARY 10, 11, 1947.  - DECIDED MARCH 31, 1947.  -
155 F.2D 711, AFFIRMED. 


1.  IN A SUIT BY THE WAGE-HOUR ADMINISTRATOR TO ENJOIN ALLEGED
VIOLATIONS OF THE OVERTIME COMPENSATION REQUIREMENT OF SEC. 7 OF THE
FAIR LABOR STANDARDS ACT, THE EVIDENCE SUMMARIZED IN THE OPINION HELD
ADEQUATE TO SUPPORT A FINDING BY THE DISTRICT COURT THAT CERTAIN
"OPERATING ENGINEERS" WHO HAD CHARGE OF A POWER PLANT IN THE ABSENCE OF
THE CHIEF ENGINEER, SUPERVISED THE WORK OF FIREMEN AND COAL PASSERS,
RECEIVED MONTHLY SALARIES IN EXCESS OF $200, AND ENJOYED PRIVILEGES
USUALLY RESERVED FOR SUPERVISORY EMPLOYEES, WERE EXEMPTED BY SEC. 13(A)
AS EMPLOYEES EMPLOYED IN AN "EXECUTIVE" CAPACITY.  PP. 547-550. 

2.  WHERE FINDINGS OF FACT MADE BY A DISTRICT COURT ON CONFLICTING
EVIDENCE AND INFERENCES DRAWN THEREFROM ARE NOT CLEARLY WRONG, THEY
SHOULD NOT BE REJECTED BY A CIRCUIT COURT OF APPEALS.  P. 550. 

3.  UPON REVIEW OF A JUDGMENT OF A CIRCUIT COURT OF APPEALS ON
CERTIORARI, THE RESPONDENT, WITHOUT FILING A CROSS-PETITION FOR
CERTIORARI, MAY SEEK TO SUSTAIN THE JUDGMENT ON A GROUND WHICH THE
CIRCUIT COURT OF APPEALS REJECTED AS WELL AS UPON THAT WHICH IT
ACCEPTED.  P. 547, N. 5. 

WALLING, WAGE AND HOUR ADMINISTRATOR, V. GENERAL INDUSTRIES CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE WAGE-HOUR ADMINISTRATOR SUED TO ENJOIN ALLEGED VIOLATIONS OF THE
OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT.  THE DISTRICT
COURT HELD THAT THE EMPLOYEES IN QUESTION WERE EXEMPT UNDER SEC. 13(A)
AND GAVE JUDGMENT FOR THE EMPLOYER.  60 F.SUPP.  549.  THE CIRCUIT
COURT OF APPEALS AFFIRMED ON THE GROUND THAT THE EMPLOYEES IN QUESTION,
THOUGH NOT EXEMPT, HAD BEEN COMPENSATED IN ACCORDANCE WITH THE ACT. 
155 F.2D 711.  THIS COURT GRANTED CERTIORARI.  329 U.S. 704.  AFFIRMED,
P. 550. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN A COMPLAINT FILED IN THE DISTRICT COURT, PETITIONER CHARGED THAT
RESPONDENT WAS VIOLATING THE FAIR LABOR STANDARDS ACT  FN1  BY FAILING
TO PAY SOME OF ITS EMPLOYEES TIME AND ONE-FALF FOR STATUTORY OVERTIME,
AS REQUIRED BY SEC. 7(A) OF THE ACT, AND ASKED AN INJUNCTION AGAINST
CONTINUED VIOLATION.  RESPONDENT DENIED THE CHARGE, AND SEPARATELY
ALLEGED THAT ANY OF ITS EMPLOYEES NOT COMPENSATED IN ACCORDANCE WITH
THE REQUIREMENTS OF SEC. 7(A) WERE EXEMPT FROM THE ACT BY SEC. 13(A). 

THE COURT, WITHOUT A JURY, HEARD WITNESSES FOR BOTH PARTIES WITH
RESPECT TO THE COMPENSATION AND STATUS OF THREE ENGINEERS IN
RESPONDENT'S POWER PLANT.  IT MADE SPECIAL FINDINGS OF FACT, CONCLUDED
THAT THESE MEN WERE EXEMPT EMPLOYEES, AND ENTERED JUDGMENT FOR
RESPONDENT.  FN2  THE CIRCUIT COURT OF APPEALS THOUGHT THE EVIDENCE DID
NOT SUSTAIN THE DISTRICT COURT'S FINDINGS RELATIVE TO THE ENGINEERS'
EXEMPT STATUS.  BUT IT THOUGHT THAT THE DISTRICT COURT HAD ALSO FOUND
THE ENGINEERS' COMPENSATION TO BE IN ACCORDANCE WITH THE ACT.  IT
DECIDED THAT THE EVIDENCE WAS ADEQUATE TO THIS END, AND AFFIRMED THE
DISTRICT COURT'S JUDGMENT.  FN3  WE GRANTED CERTIORARI  FN4 TO
DETERMINE WHETHER THE RULING OF THE CIRCUIT COURT OF APPEALS WAS NOT
INCONSISTENT WITH THIS COURT'S DECISION ON COMPUTATION OF OVERTIME IN
OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572.  ON ARGUMENT HERE,
HOWEVER, RESPONDENT CONTINUED TO URGE THAT THE DISTRICT COURT WAS
WARRANTED IN ITS FINDINGS AS TO THE ENGINEERS' EXEMPT STATUS.  FN5
HAVING HEARD THE ARGUMENT AND EXAMINED THE RECORD, WE AGREE THAT IT
WAS.  THEREFORE, WE NEED NOT CONSIDER FURTHER THE QUESTION OF
COMPUTATION OF OVERTIME, AND PROCEED ONLY TO STATE THE CONSIDERATIONS
RELEVANT TO THE PARTICULAR GROUND OF OUR DECISION. 

THERE IS NO DISPUTE AS TO THE APPLICABLE LAW.  SECTION 13(A) EXEMPTS
FROM THE OVERTIME PROVISIONS OF THE ACT ANY PERSON EMPLOYED IN AN
"EXECUTIVE CAPACITY" AS DEFINED IN REGULATIONS ISSUED BY THE
ADMINISTRATOR.  THE REGULATIONS PRESCRIBE SIX CONJUNCTIVE CONDITIONS TO
AN EXECUTIVE CAPACITY, WHICH ARE SET FORTH IN THE MARGIN.  FN6
RESPONDENT HAD THE BURDEN OF PROVING THE EXISTENCE OF THESE CONDITIONS,
IF IT WOULD RELY ON ITS DEFENSE THAT THE ENGINEERS WERE EXEMPT
EMPLOYEES.  FN7 

THERE WAS EVIDENCE TO THE FOLLOWING EFFECT.  RESPONDENT OPERATES AT
ELYRIA, OHIO, A PLANT ENGAGED IN THE PRODUCTION OF SMALL MOTORS AND
PLASTIC PRODUCTS.  PART OF THIS PLANT CONSISTS OF A POWERHOUSE
CONTAINING A BOILER ROOM AND ENGINE ROOM.  IN THE FORMER ARE FOUR
BOILERS.  THESE SUPPLY THE STEAM REQUIRED TO DRIVE THREE LARGE
ELECTRICAL GENERATORS WHICH ARE THE SOURCE OF POWER FOR THE ENTIRE
PLANT, AND TO CREATE THE HIGH STEAM-PRESSURES AND AIR-PRESSURES
EMPLOYED IN MOLDING PLASTICS.  IN THE ENGINE ROOM, BESIDES THE
GENERATORS, ARE COMPRESSORS, ENGINES, AND OTHER EQUIPMENT.  ALL THIS
MACHINERY, IN BOTH ROOMS, CONSTITUTES AN INTERRELATED AND
INTERDEPENDENT SYSTEM.  IT MUST BE CAREFULLY AND SKILLFULLY TENDED AT
ALL TIMES IN ORDER TO MAINTAIN THE POWER AND PRESSURE REQUIRED FOR
CONTINUOUS 24-HOUR OPERATION OF THE PLANT, TO AVOID DAMAGE TO THE
TREMENDOUS INVESTMENT IN THE MACHINERY ITSELF, AND TO GUARD AGAINST THE
FEARFUL CONSEQUENCES OF AN EXPLOSION. 

DURING THE PERIOD COVERED BY THE EVIDENCE, THE POWERHOUSE WAS MANNED
BY THE FOLLOWING PERSONNEL.  AT THE TOP WAS THE CHIEF ENGINEER, WHO
APPARENTLY ADHERED TO NO PRECISE DUTY-HOURS, BUT WAS CUSTOMARILY
PRESENT MOST OF THE MORNING AND AFTERNOON AND SUBJECT TO CALL, IN THE
EVENT OF AN EMERGENCY, TWENTY-FOUR HOURS A DAY.  DIRECTLY UNDER AND
RESPONSIBLE TO HIM WERE THE THREE "OPERATING ENGINEERS" WHOSE STATUS IS
IN ISSUE.  THEY WORKED CONSECUTIVE EIGHT OR EIGHT AND ONE-HALF HOUR
SHIFTS, ONE OF THEM BEING PRESENT IN THE POWERHOUSE AT ALL TIMES. 
FINALLY, THERE WERE AN UNSPECIFIED NUMBER OF FIREMEN AND COAL-PASSERS,
WHO, COLLECTIVELY, WERE ALSO ON TWENTY-FOUR HOUR DUTY. 

THE ENGINEERS IN QUESTION WERE PAID REGULAR MONTHLY SALARIES OF MORE
THAN $200 PER MONTH, FOR WHICH THEY REGULARLY WORKED SIX-SHIFT WEEKS. 
THEY RECEIVED SICK LEAVE, VACATIONS WITH PAY, BONUSES, INSURANCE, AND
PENSION RIGHTS USUALLY RESERVED FOR SUPERVISORY EMPLOYEES. 

THE ENGINEERS WERE IN CHARGE OF THE POWERHOUSE AND PERFORMED THE
DUTIES GENERALLY INCIDENT TO DIRECT SUPERVISION OF A HIGHLY MECHANIZED
OPERATION.  RESPONDENT'S VICE PRESIDENT AND FACTORY MANAGER TESTIFIED
THAT THEY ACTED AS FOREMEN OF THE FIREMEN AND COAL-PASSERS.  THIS
TESTIMONY WAS CORROBORATED BY OTHER FACTS.  IN JULY, 1944, TWO MONTHS
BEFORE THE COMPLAINT IN THIS CASE WAS FILED, THE ENGINEERS SIGNED
AGREEMENTS WITH RESPONDENT STATING THEIR DESIRE "TO BE REGARDED AS
FOREMEN, AS IN THE PAST, WITH FOREMEN PRIVILEGES AND CONTINUE ON A
SALARY BASIS."  THREE WEEKS LATER THE INTERNATIONAL BROTHERHOOD OF
FIREMEN, OILERS AND HELPERS ABANDONED A LONG-CONTESTED CLAIM OF RIGHT
TO REPRESENT THE ENGINEERS, THEREBY FORMALLY RECOGNIZING THEIR
SUPERVISORY STATUS.  INDEED, THE NATURE OF THE OPERATIONS IN THE
POWERHOUSE WAS SUCH THAT THE IMMEDIATE AND CONTINUOUS SUPERVISION OF
TRAINED PERSONS WAS INDISPENSABLE, AND THERE WERE CONCEDEDLY NO OTHER
EMPLOYEES TO GIVE SUCH SUPERVISION.  THE ENGINEERS WERE REQUIRED TO
MAINTAIN CONSTANT OBSERVATION OF ALL MACHINERY IN THE POWERHOUSE, AND
TO MAKE REGULAR INSPECTIONS AND NECESSARY REPAIRS.  IN ADDITION THEY
WERE REQUIRED TO SPEND A SMALL PART OF THEIR TIME IN OILING AND
CLEANING THE ENGINES. 

THE DISTRICT COURT, HAVING MADE FINDINGS SUBSTANTIALLY AS STATED
ABOVE, PROCEEDED TO MAKE ADDITIONAL FINDINGS OF THE EXISTENCE OF EACH
OF THE FACTS ON WHICH AN EXECUTIVE STATUS, AS DEFINED BY THE
REGULATIONS, IS MADE TO DEPEND. 

WE BELIEVE THAT THE EVIDENTIARY FACTS AFFORD AN ADEQUATE BASIS FOR
THE INFERENCES DRAWN BY THE COURT IN MAKING SUCH ADDITIONAL FINDINGS. 
AT THE LEAST, WE THINK THAT IN DRAWING SUCH INFERENCES THE COURT WAS
NOT CLEARLY WRONG, AND CONCLUDE THAT THE FINDINGS SHOULD THEREFORE HAVE
BEEN LEFT UNDISTURBED.  FN8  THE CIRCUIT COURT OF APPEALS' REJECTION OF
THOSE FINDINGS CANNOT REST ON THE CONFLICTING TESTIMONY OF PETITIONER'S
WITNESSES.  THE DISTRICT COURT HEARD THE WITNESSES, AND WAS THE PROPER
JUDGE OF THEIR CREDIBILITY.  FN9  AFFIRMED. 

FN1  52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. 

FN2 WALLING V. GENERAL INDUSTRIES CO., 60 F.SUPP.  549. 

FN3  WALLING V. GENERAL INDUSTRIES CO., 155 F.2D 711. 

FN4  329 U.S. 704. 

FN5  RESPONDENT WAS ENTITLED TO MAKE THIS CONTENTION HERE WITHOUT
FILING A CROSS-PETITION FOR CERTIORARI.  LANGNES V. GREEN, 282 U.S.
531, 538; PUBLIC SERVICE COMMISSION OF PUERTO RICO V. HAVEMEYER, 296
U.S. 506, 509. 

FN6  29 C.F.R. CUM. SUPP. SEC. 541.1, 5 FED. REG. 4077(REGULATIONS OF
THE ADMINISTRATOR, WAGE AND HOUR DIVISION, U.S. DEPT. OF LABOR, OCT.
24, 1940, AMENDED JAN. 16, 1942) PROVIDES AS FOLLOWS: 

"SEC. 541.1 EXECUTIVE. 

"THE TERM 'EMPLOYEE EMPLOYED IN A BONA FIDE EXECUTIVE  ...  CAPACITY'
IN SECTION 13(A)(1) OF THE ACT SHALL MEAN ANY EMPLOYEE 

"(A)  WHOSE PRIMARY DUTY CONSISTS OF THE MANAGEMENT OF THE
ESTABLISHMENT IN WHICH HE IS EMPLOYED OR OF A CUSTOMARILY RECOGNIZED
DEPARTMENT OR SUBDIVISION THEREOF, AND 

"(B)  WHO CUSTOMARILY AND REGULARLY DIRECTS THE WORK OF OTHER
EMPLOYEES THEREIN, AND 

"(C)  WHO HAS THE AUTHORITY TO HIRE OR FIRE OTHER EMPLOYEES OR WHOSE
SUGGESTIONS AND RECOMMENDATIONS AS TO THE HIRING OR FIRING AND AS TO
THE ADVANCEMENT AND PROMOTION OR ANY OTHER CHANGE OF STATUS OF OTHER
EMPLOYEES WILL BE GIVEN PARTICULAR WEIGHT, AND 

"(D)  WHO CUSTOMARILY AND REGULARLY EXERCISES DISCRETIONARY POWERS,
AND 

"(E)  WHO IS COMPENSATED FOR HIS SERVICES ON A SALARY BASIS AT NOT
LESS THAN $30 PER WEEK (EXCLUSIVE OF BOARD, LODGING, OR OTHER
FACILITIES), AND 

"(F)  WHOSE HOURS OF WORK OF THE SAME NATURE AS THAT PERFORMED BY
NONEXEMPT EMPLOYEES DO NOT EXCEED 20 PERCENT OF THE NUMBER OF HOURS
WORKED IN THE WORKWEEK BY THE NONEXEMPT EMPLOYEES UNDER HIS DIRECTION;
PROVIDED THAT THIS SUBSECTION (F) SHALL NOT APPLY IN THE CASE OF AN
EMPLOYEE WHO IS IN SOLE CHARGE OF AN INDEPENDENT ESTABLISHMENT OR A
PHYSICALLY SEPARATED BRANCH ESTABLISHMENT." 

FN7  SEE HELLIWELL V. HABERMAN, 140 F.2D 833, 834(C.C.A. 2); FLETCHER
V. GRINNELL BROTHERS, 150 F.2D 337, 340-341(C.C.A. 6); SMITH V. PORTER,
143 F.2D 292, 294(C.C.A. 8). 

FN8  RULE 52(A), FEDERAL RULES OF CIVIL PROCEDURE; LAWSON V. UNITED
STATES MINING CO., 207 U.S. 1, 12; BUTTE & SUPERIOR COPPER CO. V. CLARK
MONTANA REALTY CO., 249 U.S. 12, 30.  SEE DISTRICT OF COLUMBIA V. PACE,
320 U.S. 698, 701. 

FN9  RULE 52(A), FEDERAL RULES OF CIVIL PROCEDURE; ADAMSON V.
GILLILAND, 242 U.S. 350; UNITED STATES V. UNITED SHOE MACHINERY CO.,
247 U.S. 32, 37, 38, 41. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

IN MY OPINION THE CIRCUIT COURT OF APPEALS CORRECTLY FOUND THAT THE
EVIDENCE IS NOT SUFFICIENT TO SUSTAIN THE FINDINGS UPON WHICH THE
DISTRICT COURT CONCLUDED THAT THE OPERATING ENGINEERS ARE EXEMPT UNDER
SEC. 13(A)(1) OF THE FAIR LABOR STANDARDS ACT.  IT SAID, UNANIMOUSLY: 

"THE DISTRICT COURT FOUND AS A FACT THAT STEGMAN, PAGE AND SPOONER
WERE EMPLOYED AS FOREMEN OR SUPERVISORS OF THE DEPARTMENT, WITH POWER
TO SUPERVISE THE WORK OF FIREMEN AND COAL-PASSERS IN THE BOILERROOM;
THAT THEY CUSTOMARILY AND REGULARLY DIRECTED THE WORK OF OTHER
EMPLOYEES IN THE DEPARTMENT, AND CUSTOMARILY EXERCISED DISCRETIONARY
POWERS.  WE THINK THESE FINDINGS ARE NOT SUSTAINED BY THE EVIDENCE. 
THE WORK DONE BY THE ENGINEERS WAS HIGHLY SKILLED MECHANICAL WORK. 
WHILE THE MACHINERY WAS VITAL TO THE PLANT, DANGEROUS AND COMPLICATED,
ITS OPERATION INVOLVED NO EXERCISE OF DISCRETION, BUT MERELY THE PROPER
APPLICATION OF THE SKILLED ENGINEERING TRAINING WHICH THESE MEN HAD
RECEIVED.  ALTHOUGH THE THREE ENGINEERS WERE RESPONSIBLE FOR THE PROPER
OPERATION OF THE MACHINERY DURING THEIR SHIFTS, AND, AS THE FACTORY
MANAGER TESTIFIES, 'IN CHARGE OF MANAGEMENT OF THE PROPERTY,' NONE OF
THEM COULD FIRE OR HIRE OR GIVE ORDERS TO ANY MAN IN THE BOILERROOM. 
LATTEMAN, THE CHIEF ENGINEER, WHO WAS PRESENT AT THE PLANT DURING ONE
SHIFT AND ON CALL 24 HOURS A DAY AND SEVEN DAYS A WEEK, WAS IN FULL
CHARGE OF THE DEPARTMENT.  WHILE LATTEMAN MIGHT ACT ON INFORMATION FROM
STEGMAN, PAGE, OR SPOONER, DURING THE PERIOD INVOLVED, ORDERS EMANATED
ONLY FROM HIM.  IT IS NOT SHOWN THAT STEGMAN, PAGE OR SPOONER EVER MADE
ANY RECOMMENDATION CONCERNING THE CHANGE IN STATUS OF THE BOILER-MEN. 
IT WAS ESSENTIAL TO HAVE PROPER STEAM PRESSURE IN THE BOILER-ROOM, BUT
IF THE THREE ENGINEERS DESIRED IN THIS CONNECTION TO SECURE ACTION FROM
THE FIREMEN AND COAL-PASSERS, THEY HAD TO SECURE AN ORDER FROM
LATTEMAN.  THIS EVIDENCE IS NOT CONTRADICTED."  155 F.2D 711, 714. 

AN INDEPENDENT EXAMINATION OF THE RECORD CONFIRMS THE COURT OF
APPEALS' CONCLUSIONS.  IT DISCLOSES THAT ON ONE OR TWO OCCASIONS AN
OPERATING ENGINEER TRIED TO GIVE ORDERS TO FIREMEN OR COAL PASSERS IN
THE BOILER ROOM, BUT IN EACH INSTANCE THOSE MEN REFUSED TO FOLLOW THEM
AND TOOK THEIR ORDERS SOLELY FROM LATTEMAN.  THIS FALLS FAR SHORT AT
LEAST OF THE REGULAR AND CUSTOMARY SUPERVISION REQUIRED BY SECS.
541.1(A) AND (B) OF THE CONTROLLING REGULATIONS TO MAKE THE EXEMPTION
OPERATIVE. 

SINCE THE COURT DOES NOT REACH OTHER QUESTIONS PRESENTED ON THE
RECORD, I EXPRESS NO OPINION CONCERNING THEM. 

MR. JUSTICE BLACK AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :






















KOTCH V. PILOT COMM'RS, 330 U.S. 552 


NO. 291.  ARGUED FEBRUARY 5, 6, 1947.  - DECIDED MARCH 31, 1947.  - 209
LA. 737, 25 SO.2D 527, AFFIRMED. 


1.  THE PILOTAGE LAW OF LOUISIANA REQUIRES THAT OCEAN-GOING VESSELS,
OTHER THAN COASTAL VESSELS WHOSE PILOTAGE IS SUBJECT EXCLUSIVELY TO
FEDERAL REGULATION, SHALL BE PILOTED THROUGH THE MISSISSIPPI RIVER
APPROACHES TO THE PORT OF NEW ORLEANS, AND IN THE PORT, ONLY BY PILOTS
APPOINTED BY THE GOVERNOR.  PILOTS SO APPOINTED HAVE THE STATUS OF
STATE OFFICERS.  ONLY THOSE ARE ELIGIBLE FOR APPOINTMENT AS STATE
PILOTS WHO, IN ADDITION TO OTHER SPECIFIC QUALIFICATIONS, HAVE SERVED
AN APPRENTICESHIP OF SIX MONTHS UNDER STATE PILOTS AND WHO ARE
CERTIFIED BY A BOARD COMPOSED OF STATE PILOTS.  APPELLANTS, EXPERIENCED
IN PILOTING COASTAL VESSELS ON THE RIVER AND IN THE PORT, AND
POSSESSING ALL OF THE STATUTORY QUALIFICATIONS EXCEPT THE SIX MONTHS'
APPRENTICESHIP UNDER STATE PILOTS, WERE DENIED APPOINTMENT AS STATE
PILOTS.  SEEKING JUDICIAL RELIEF, APPELLANTS ALLEGED THAT THE INCUMBENT
PILOTS GENERALLY SELECTED AS APPRENTICES ONLY RELATIVES AND FRIENDS OF
INCUMBENTS; THAT THE SELECTIONS WERE MADE BY ELECTING PROSPECTIVE
APPRENTICES INTO A PILOTS' ASSOCIATION, FORMED UNDER AUTHORITY OF STATE
LAW; THAT SINCE "MEMBERSHIP  ...  HAS BEEN CLOSED  ...  TO ALL EXCEPT
THOSE HAVING THE FAVOR OF THE PILOTS" THE RESULT IS THAT GENERALLY ONLY
THEIR RELATIVES AND FRIENDS HAVE AND CAN BECOME STATE PILOTS.  HELD:
CONSIDERING THE ENTIRELY UNIQUE INSTITUTION OF PILOTAGE IN THE LIGHT OF
ITS HISTORY IN LOUISIANA AND ELSEWHERE, THE PILOTAGE LAW AS SO
ADMINISTERED DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 553-564. 

2.  THE FEDERAL CONSTITUTION DOES NOT REQUIRE A STATE GOVERNOR, OR
SUBORDINATES RESPONSIBLE TO HIM AND REMOVABLE BY HIM FOR CAUSE, TO
SELECT STATE PUBLIC SERVANTS BY COMPETITIVE TESTS OR BY ANY OTHER
PARTICULAR METHOD OF SELECTION.  PP. 563-564. 

3.  THE METHOD ADOPTED BY LOUISIANA FOR THE SELECTION OF PILOTS IS
NOT WITHOUT RELATION TO THE OBJECTIVE OF SECURING FOR THE STATE AND
OTHERS INTERESTED THE SAFEST AND MOST EFFICIENTLY OPERATED PILOTAGE
SYSTEM PRACTICABLE.  P. 564. 

KOTCH ET AL. V. BOARD OF RIVER PORT PILOT COMMISSIONERS FOR THE PORT
OF NEW ORLEANS ET AL. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

A SUIT BROUGHT BY APPELLANTS IN A STATE COURT, CHALLENGING THE
VALIDITY UNDER THE FEDERAL CONSTITUTION OF THE PILOTAGE LAW OF
LOUISIANA, WAS DISMISSED.  THE SUPREME COURT OF THE STATE AFFIRMED. 
209 LA. 737, 25 SO.2D 527.  AN APPEAL WAS TAKEN TO THIS COURT. 
AFFIRMED, P. 564. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

LOUISIANA STATUTES PROVIDE IN GENERAL THAT ALL SEAGOING VESSELS
MOVING BETWEEN NEW ORLEANS AND FOREIGN PORTS MUST BE NAVIGATED THROUGH
THE MISSISSIPPI RIVER APPROACHES TO THE PORT OF NEW ORLEANS AND WITHIN
IT EXCLUSIVELY BY PILOTS WHO ARE STATE OFFICERS.  FN1  NEW STATE PILOTS
ARE APPOINTED BY THE GOVERNOR ONLY UPON CERTIFICATION OF A STATE BOARD
OF RIVER PILOT COMMISSIONERS, THEMSELVES PILOTS.  FN2  ONLY THOSE WHO
HAVE SERVED A SIX-MONTH APPRENTICESHIP UNDER INCUMBENT PILOTS AND WHO
POSSESS OTHER SPECIFIC QUALIFICATIONS MAY BE CERTIFIED TO THE GOVERNOR
BY THE BOARD.  FN3  APPELLANTS HERE HAVE HAD AT LEAST FIFTEEN YEARS
EXPERIENCE IN THE RIVER, THE PORT, AND ELSEWHERE, AS PILOTS OF VESSELS
WHOSE PILOTAGE WAS NOT GOVERNED BY THE STATE LAW IN QUESTION.  FN4
ALTHOUGH THEY POSSESS ALL THE STATUTORY QUALIFICATIONS EXCEPT THAT THEY
HAVE NOT SERVED THE REQUISITE SIX MONTHS APPRENTICESHIP UNDER LOUISIANA
OFFICER PILOTS,  FN5  THEY HAVE BEEN DENIED APPOINTMENT AS STATE
PILOTS.  SEEKING RELIEF IN A LOUISIANA STATE COURT, THEY ALLEGED THAT
THE INCUMBENT PILOTS, HAVING UNFETTERED DISCRETION UNDER THE LAW IN THE
SELECTION OF APPRENTICES, HAD SELECTED, WITH OCCASIONAL EXCEPTION, ONLY
THE RELATIVES AND FRIENDS OF INCUMBENTS; THAT THE SELECTIONS WERE MADE
BY ELECTING PROSPECTIVE APPRENTICES INTO THE PILOTS' ASSOCIATION, WHICH
THE PILOTS HAVE FORMED BY AUTHORITY OF STATE LAW; FN6  THAT SINCE
"MEMBERSHIP  ...  HAS BEEN CLOSED ...  TO ALL EXCEPT THOSE HAVING THE
FAVOR OF THE PILOTS" THE RESULT IS THAT ONLY THEIR RELATIVES AND
FRIENDS HAVE AND CAN BECOME STATE PILOTS.  FN7  THE SUPREME COURT OF
LOUISIANA HAS HELD THAT THE PILOTAGE LAW SO ADMINISTERED DOES NOT
VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, 209
LA. 737, 25 SO.2D 527.  THE CASE IS HERE ON APPEAL FROM THAT DECISION
UNDER 28 U.S.C. SEC. 344(A). 

THE CONSTITUTIONAL COMMAND FOR A STATE TO AFFORD "EQUAL PROTECTION OF
THE LAWS" SETS A GOAL NOT ATTAINABLE BY THE INVENTION AND APPLICATION
OF A PRECISE FORMULA.  THIS COURT HAS NEVER ATTEMPTED THAT IMPOSSIBLE
TASK.  A LAW WHICH AFFECTS THE ACTIVITIES OF SOME GROUPS DIFFERENTLY
FROM THE WAY IN WHICH IT AFFECTS THE ACTIVITIES OF OTHER GROUPS IS NOT
NECESSARILY BANNED BY THE FOURTEENTH AMENDMENT.  SEE E.G., TIGNER V.
TEXAS, 310 U.S. 141, 147.  OTHERWISE, EFFECTIVE REGULATION IN THE
PUBLIC INTEREST COULD NOT BE PROVIDED, HOWEVER ESSENTIAL THAT
REGULATION MIGHT BE.  FOR IT IS AXIOMATIC THAT THE CONSEQUENCE OF
REGULATING BY SETTING APART A CLASSIFIED GROUP IS THAT THOSE IN IT WILL
BE SUBJECT TO SOME RESTRICTIONS OR RECEIVE CERTAIN ADVANTAGES THAT DO
NOT APPLY TO OTHER GROUPS OR TO ALL THE PUBLIC.  ATCHISON, T. & S.F.R.
CO. V. MATTHEWS, 174 U.S. 96, 106.  THIS SELECTIVE APPLICATION OF A
REGULATION IS DISCRIMINATION IN THE BROAD SENSE, BUT IT MAY OR MAY NOT
DENY EQUAL PROTECTION OF THE LAWS.  CLEARLY, IT MIGHT OFFEND THAT
CONSTITUTIONAL SAFEGUARD IF IT RESTED ON GROUNDS WHOLLY IRRELEVANT TO
ACHIEVEMENT OF THE REGULATION'S OBJECTIVES.  AN EXAMPLE WOULD BE A LAW
APPLIED TO DENY A PERSON A RIGHT TO EARN A LIVING OR HOLD ANY JOB
BECAUSE OF HOSTILITY TO HIS PARTICULAR RACE, RELIGION, BELIEFS, OR
BECAUSE OF ANY OTHER REASON HAVING NO RATIONAL RELATION TO THE
REGULATED ACTIVITIES.  SEE AMERICAN SUGAR RFG.  CO. V. LOUISIANA, 179
U.S. 89, 92. 

THE CASE OF YICK WO V. HOPKINS, 118 U.S. 356, RELIED ON BY APPELLANTS,
IS AN ILLUSTRATION OF A TYPE OF DISCRIMINATION WHICH IS INCOMPATIBLE
WITH ANY FAIR CONCEPTION OF EQUAL PROTECTION OF THE LAWS.  YICK WO WAS
DENIED THE RIGHT TO ENGAGE IN AN OCCUPATION SUPPOSEDLY OPEN TO ALL WHO
COULD CONDUCT THEIR BUSINESS IN ACCORDANCE WITH THE LAW'S
REQUIREMENTS.  HE COULD MEET THESE REQUIREMENTS, BUT WAS DENIED THE
RIGHT TO DO SO SOLELY BECAUSE HE WAS CHINESE.  AND IT MADE NO
DIFFERENCE THAT UNDER THE LAW AS WRITTEN YICK WO WOULD HAVE ENJOYED THE
SAME PROTECTION AS ALL OTHERS.  ITS UNEQUAL APPLICATION TO YICK WO WAS
ENOUGH TO CONDEMN IT.  BUT YICK WO'S CASE, AS OTHER CASES HAVE
DEMONSTRATED, WAS TESTED BY THE LANGUAGE OF THE LAW THERE CONSIDERED
AND THE ADMINISTRATION THERE SHOWN.  CF. CROWLEY V. CHRISTENSEN, 137
U.S. 86, 93, 94; GUNDLING V. CHICAGO, 177 U.S. 183; NEW YORK EX REL.
LIEBERMAN V. VAN DE CARR, 199 U.S. 552; ENGEL V. O'MALLEY, 219 U.S.
128, 137.  SO HERE, WE MUST CONSIDER THE RELATIONSHIP OF THE METHOD OF
APPOINTING PILOTS TO THE BROAD OBJECTIVES OF THE ENTIRE LOUISIANA
PILOTAGE LAW.  SEE GRAINGER V. DOUGLAS PARK JOCKEY CLUB, 148 F. 513,
AND CASES THERE CITED.  IN SO DOING WE MUST VIEW THE APPOINTMENT SYSTEM
IN THE CONTEXT OF THE HISTORICAL EVOLUTION OF THE LAWS AND INSTITUTION
OF PILOTAGE IN LOUISIANA AND ELSEWHERE.  CF. OTIS CO. V. LUDLOW MFG.
CO., 201 U.S. 140, 154; JACKMAN V. ROSENBAUM, 260 U.S. 22, 31; BAYSIDE
FISH FLOUR CO. V. GENTRY, 297 U.S. 422, 428-430.  AND AN IMPORTANT
FACTOR IN OUR CONSIDERATION IS THAT THIS CASE TESTS THE RIGHT AND POWER
OF A STATE TO SELECT ITS OWN AGENTS AND OFFICERS.  TAYLOR V. BECKHAM,
178 U.S. 548; SNOWDEN V. HUGHES, 321 U.S. 1, 11-13. 

STUDIES OF THE LONG HISTORY OF PILOTAGE REVEAL THAT IT IS A UNIQUE
INSTITUTION AND MUST BE JUDGED AS SUCH.  FN8  IN ORDER TO AVOID
INVISIBLE HAZARDS, VESSELS APPROACHING AND LEAVING PORTS MUST BE
CONDUCTED FROM AND TO OPEN WATERS BY PERSONS INTIMATELY FAMILIAR WITH
THE LOCAL WATERS.  THE PILOT'S JOB GENERALLY REQUIRES THAT HE GO
OUTSIDE THE HARBOR'S ENTRANCE IN A SMALL BOAT TO MEET INCOMING SHIPS,
BOARD THEM AND DIRECT THEIR COURSE FROM OPEN WATER TO THE PORT.  THE
SAME SERVICE IS PERFORMED FOR VESSELS LEAVING THE PORT.  PILOTS ARE
THUS INDISPENSABLE COGS IN THE TRANSPORTATION SYSTEM OF EVERY MARITIME
ECONOMY.  THEIR WORK PREVENTS TRAFFIC CONGESTION AND ACCIDENTS WHICH
WOULD IMPAIR NAVIGATION IN AND TO THE PORTS.  IT AFFECTS THE SAFETY OF
LIVES AND CARGO, THE COST AND TIME EXPENDED IN PORT CALLS, AND, IN SOME
MEASURE, THE COMPETITIVE ATTRACTIVENESS OF PARTICULAR PORTS.  THUS, FOR
THE SAME REASONS THAT GOVERNMENTS OF MOST MARITIME COMMUNITIES HAVE
SUBSIDIZED, REGULATED, OR HAVE THEMSELVES OPERATED DOCKS AND OTHER
HARBOR FACILITIES AND SOUGHT TO IMPROVE THE APPROACHES TO THEIR PORTS,
THEY HAVE CLOSELY REGULATED AND OFTEN OPERATED THEIR PORTS' PILOTAGE
SYSTEMS.  FN9 

THE HISTORY AND PRACTICE OF PILOTAGE DEMONSTRATE THAT, ALTHOUGH
INEXTRICABLY GEARED TO A COMPLEX COMMERCIAL ECONOMY, IT IS ALSO A
HIGHLY PERSONALIZED CALLING.  FN10  A PILOT DOES NOT REQUIRE A
FORMALIZED TECHNICAL EDUCATION SO MUCH AS A DETAILED AND EXTREMELY
INTIMATE, ALMOST INTUITIVE, KNOWLEDGE OF THE WEATHER, WATERWAYS AND
CONFORMATION OF THE HARBOR OR RIVER WHICH HE SERVES.  THIS SEEMS TO BE
PARTICULARLY TRUE OF THE APPROACHES TO NEW ORLEANS THROUGH THE
TREACHEROUS AND SHIFTING CHANNEL OF THE MISSISSIPPI RIVER.  FN11
MOREOVER, HARBOR ENTRANCES WHERE PILOTS CAN MOST CONVENIENTLY MAKE
THEIR HOMES AND STILL BE CLOSE TO PLACES WHERE THEY BOARD INCOMING AND
LEAVE OUTGOING SHIPS ARE USUALLY SOME DISTANCE FROM THE PORT CITIES
THEY SERVE.  FN12  THESE "PILOT TOWNS" HAVE BEGUN, AND GENERALLY EXIST
TODAY, AS SMALL COMMUNITIES OF PILOTS, PERHAPS NEAR BUT USUALLY
DISTINCT FROM THE PORT CITIES.  FN13  IN THESE COMMUNITIES YOUNG MEN
HAVE AN OPPORTUNITY TO ACQUIRE SPECIAL KNOWLEDGE OF THE WEATHER AND
WATER HAZARDS OF THE LOCALITY AND SEEM TO GROW UP WITH AMBITIONS TO
BECOME PILOTS IN THE TRADITIONS OF THEIR FATHERS, RELATIVES, AND
NEIGHBORS.  FN14  WE ARE ASKED, IN EFFECT, TO SAY THAT LOUISIANA IS
WITHOUT CONSTITUTIONAL AUTHORITY TO CONCLUDE THAT APPRENTICESHIP UNDER
PERSONS SPECIALLY INTERESTED IN A PILOT'S FUTURE IS THE BEST WAY TO FIT
HIM FOR DUTY AS A PILOT OFFICER IN THE SERVICE OF THE STATE. 

THE STATES HAVE HAD FULL POWER TO REGULATE PILOTAGE OF CERTAIN KINDS
OF VESSELS SINCE 1789 WHEN THE FIRST CONGRESS DECIDED THAT THEN
EXISTING STATE PILOT LAWS WERE SATISFACTORY AND MADE FEDERAL REGULATION
UNNECESSARY.  1 STAT. 53, 54(1789), 46 U.S.C. SEC. 211; OLSEN V. SMITH,
195 U.S. 332, 341; ANDERSON V. PACIFIC COAST S.S. CO., 225 U.S. 187. 
LOUISIANA LEGISLATION HAS CONTROLLED THE ACTIVITIES AND APPOINTMENT OF
PILOTS SINCE 1805 - EVEN BEFORE THE TERRITORY WAS ADMITTED AS A STATE. 
FN15  THE STATE PILOTAGE SYSTEM, AS IT HAS EVOLVED SINCE 1805, IS
TYPICAL OF THAT WHICH GREW UP IN MOST SEABOARD STATES AND IN FOREIGN
COUNTRIES.  FN16  SINCE 1805 LOUISIANA PILOTS HAVE BEEN STATE OFFICERS
WHOSE WORK HAS BEEN CONTROLLED BY THE STATE.  FN17  THAT ACT FORBADE
ALL BUT A LIMITED NUMBER OF PILOTS APPOINTED BY THE GOVERNOR TO SERVE
IN THAT CAPACITY.  THE PILOTS SO APPOINTED WERE AUTHORIZED TO SELECT
THEIR OWN DEPUTIES.  FN18  BUT PILOTS, AND THROUGH THEM, THEIR
DEPUTIES, WERE LITERALLY UNDER THE COMMAND OF THE MASTER AND THE
WARDENS OF THE PORT OF NEW ORLEANS, APPOINTED BY THE GOVERNOR.  THE
MASTER AND WARDENS WERE AUTHORIZED TO MAKE RULES GOVERNING THE
PRACTICES OF PILOTS, SPECIFICALLY EMPOWERED TO ORDER PILOTS TO THEIR
STATIONS, AND TO FINE THEM FOR DISOBEDIENCE TO ORDERS OR RULES.  AND
THE PILOTS WERE REQUIRED TO MAKE OFFICIAL BOND FOR FAITHFUL PERFORMANCE
OF THEIR DUTY.  PILOTS' FEES WERE FIXED; FN19  SHIPS COMING TO THE
MISSISSIPPI WERE REQUIRED TO PAY PILOTAGE WHETHER THEY TOOK ON PILOTS
OR NOT.  FN20  THE PILOTS WERE AUTHORIZED TO ORGANIZE AN ASSOCIATION
WHOSE MEMBERSHIP THEY CONTROLLED IN ORDER "TO ENFORCE THE LEGAL
REGULATIONS, AND ADD TO THE EFFICIENCY OF THE SERVICE REQUIRED
THEREBY."  FN21 MOREOVER, EFFICIENT AND ADEQUATE SERVICE WAS SOUGHT TO
BE INSURED BY REQUIRING THE BOARD OF PILOT COMMISSIONERS TO REPORT TO
THE GOVERNOR AND AUTHORIZING HIM SUMMARILY TO REMOVE ANY PILOT GUILTY
OF "NEGLECT OF DUTY, HABITUAL INTEMPERANCE, CARELESSNESS, INCOMPETENCY,
OR ANY ACT OR CONDUCT ...  SHOWING" THAT HE "OUGHT TO BE REMOVED."  LA.
ACT NO. 113, SEC. 20(1857).  THESE PROVISIONS HAVE BEEN CARRIED OVER
WITH SOME REVISION INTO THE PRESENT COMPREHENSIVE LOUISIANA PILOTAGE
LAW.  6 LA. GEN. STAT., TIT. 59, CC. 6, 8(1939).  THUS IN LOUISIANA, AS
ELSEWHERE, IT SEEMS TO HAVE BEEN ACCEPTED AT AN EARLY DATE THAT IN
PILOTAGE, UNLIKE OTHER OCCUPATIONS, COMPETITION FOR APPOINTMENT, FOR
THE OPPORTUNITY TO SERVE PARTICULAR SHIPS AND FOR FEES, ADVERSELY
AFFECTS THE PUBLIC INTEREST IN PILOTAGE.  FN22 

IT IS WITHIN THE FRAMEWORK OF THIS LONG-STANDING PILOTAGE REGULATION
SYSTEM THAT THE PRACTICE HAS APPARENTLY EXISTED OF PERMITTING PILOTS,
IF THEY CHOOSE, TO SELECT THEIR RELATIVES AND FRIENDS AS THE ONLY ONES
ULTIMATELY ELIGIBLE FOR APPOINTMENT AS PILOTS BY THE GOVERNOR.  MANY
OTHER STATES HAVE ESTABLISHED PILOTAGE SYSTEMS WHICH MAKE THE SELECTION
OF PILOTS ON THIS BASIS POSSIBLE.  FN23 THUS IT WAS NOTED THIRTY YEARS
AGO IN A DEPARTMENT OF COMMERCE STUDY OF PILOTAGE THAT MEMBERSHIP OF
PILOT ASSOCIATIONS "IS LIMITED TO PERSONS AGREEABLE TO THOSE ALREADY
MEMBERS, GENERALLY RELATIVES AND FRIENDS OF THE PILOTS.  PROBABLY IN
PILOTAGE MORE THAN IN ANY OTHER OCCUPATION IN THE UNITED STATES THE
MALE MEMBERS OF A FAMILY FOLLOW THE SAME WORK FROM GENERATION TO
GENERATION."  FN24 

THE PRACTICE OF NEPOTISM IN APPOINTING PUBLIC SERVANTS HAS BEEN A
SUBJECT OF CONTROVERSY IN THIS COUNTRY THROUGHOUT OUR HISTORY.  SOME
STATES HAVE ADOPTED CONSTITUTIONAL AMENDMENTS  FN25  OR STATUTES  FN26
TO PROHIBIT IT.  THESE HAVE REFLECTED STATE POLICIES TO WIPE OUT THE
PRACTICE.  BUT LOUISIANA AND MOST OTHER STATES HAVE ADOPTED NO SUCH
GENERAL POLICY.  WE CAN ONLY ASSUME THAT THE LOUISIANA LEGISLATURE
WEIGHED THE OBVIOUS POSSIBILITY OF EVIL AGAINST WHATEVER USEFUL
FUNCTION A CLOSELY KNIT PILOTAGE SYSTEM MAY SERVE.  THUS THE ADVANTAGES
OF EARLY EXPERIENCE UNDER FRIENDLY SUPERVISION IN THE LOCALITY OF THE
PILOT'S TRAINING, THE BENEFITS TO MORALE AND ESPRIT DE CORPS WHICH
FAMILY AND NEIGHBORLY TRADITION MIGHT CONTRIBUTE, THE CLOSE ASSOCIATION
IN WHICH PILOTS MUST WORK AND LIVE IN THEIR PILOT COMMUNITIES AND ON
THE WATER, AND THE DISCIPLINE AND REGULATION WHICH IS IMPOSED TO ASSURE
THE STATE COMPETENT PILOT SERVICE AFTER APPOINTMENT, MIGHT HAVE
PROMPTED THE LEGISLATURE TO PERMIT LOUISIANA PILOT OFFICERS TO SELECT
THOSE WITH WHOM THEY WOULD SERVE. 

THE NUMBER OF PEOPLE, AS A PRACTICAL MATTER, WHO CAN BE PILOTS IS
VERY LIMITED.  NO MATTER WHAT SYSTEM OF SELECTION IS ADOPTED, ALL BUT
THE FEW OCCASIONALLY SELECTED MUST OF NECESSITY BE EXCLUDED.  CF. OLSEN
V. SMITH, SUPRA, 344, 345.  FN27  WE ARE AWARE OF NO DECISION OF THIS
COURT HOLDING THAT THE CONSTITUTION REQUIRES A STATE GOVERNOR, OR
SUBORDINATES RESPONSIBLE TO HIM AND REMOVABLE BY HIM FOR CAUSE, TO
SELECT STATE PUBLIC SERVANTS BY COMPETITIVE TESTS OR BY ANY OTHER
PARTICULAR METHOD OF SELECTION.  THE OBJECT OF THE ENTIRE PILOTAGE LAW,
AS WE HAVE POINTED OUT, IS TO SECURE FOR THE STATE AND OTHERS
INTERESTED THE SAFEST AND MOST EFFICIENTLY OPERATED PILOTAGE SYSTEM
PRACTICABLE.  WE CANNOT SAY THAT THE METHOD ADOPTED IN LOUISIANA FOR
THE SELECTION OF PILOTS IS UNRELATED TO THIS OBJECTIVE.  SEE OLSEN V.
SMITH, SUPRA; CF. CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495, 509
510.  WE DO NOT NEED TO CONSIDER HYPOTHETICAL QUESTIONS CONCERNING ANY
SIMILAR SYSTEM OF SELECTION WHICH MIGHT CONCEIVABLY BE PRACTICED IN
OTHER PROFESSIONS OR BUSINESSES REGULATED OR OPERATED BY STATE
GOVERNMENTS.  IT IS ENOUGH HERE THAT CONSIDERING THE ENTIRELY UNIQUE
INSTITUTION OF PILOTAGE IN THE LIGHT OF ITS HISTORY IN LOUISIANA, WE
CANNOT SAY THAT THE PRACTICE APPELLANTS ATTACK IS THE KIND OF
DISCRIMINATION WHICH VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  AFFIRMED.    FN1  A SHIP ENTERING THE
MISSISSIPPI RIVER FROM THE GULF OF MEXICO IS PILOTED THE TWENTY MILE
DISTANCE FROM THE MOUTH OF THE RIVER TO "PILOT TOWN" BY ONE OF A GROUP
OF PILOTS SPECIALLY FAMILIAR WITH THE "ENTRANCE" TO THE MISSISSIPPI
THROUGH THE SO-CALLED "PASSES."  LA. ACTS 1880, NO. 99, SEC. 2, LA.
ACTS 1908, NO. 55, SEC. 1, LA. ACTS 1910, NO. 26, SEC. 1, 6 LA. GEN.
STAT. SECS. 9141, 9163(1939).  BETWEEN PILOT TOWN AND NEW ORLEANS, A
DISTANCE OF APPROXIMATELY NINETY MILES, SHIPS ARE PILOTED EXCLUSIVELY
BY SO-CALLED RIVER PORT PILOTS.  LA. ACTS 1908, NO. 54, SEC. 1, 6 LA.
GEN. STAT., TIT. 59, C. 8(1939).  BY AN AMENDMENT IN 1942 THE EXCLUSIVE
JURISDICTION OF THE RIVER PORT PILOTS WAS EXTENDED TO THE PILOTING OF
SEAGOING VESSELS WITHIN THE PORT OF NEW ORLEANS.  LA. ACTS 1942, NO.
134, 6 LA. GEN. STAT. SEC. 9155(SUPP.  1946).  APPELLANTS HERE SOUGHT
APPOINTMENT AS RIVER PORT PILOTS. 

FN2  SECTIONS 2 AND 3 OF THE ACT OF 1908 PROVIDED FOR THE APPOINTMENT
AND COMMISSIONING OF TWENTY-EIGHT PILOTS BY THE GOVERNOR AND PRESCRIBED
THAT THEREAFTER THERE SHOULD NOT BE LESS THAN TWENTY.  6 LA. GEN. STAT.
SECS. 9155, 9156(1939). 

THE STATEMENT OF THE LOUISIANA COURT IN THIS CASE THAT PILOTS SO
APPOINTED ARE CONSIDERED STATE OFFICERS HAS LONG BEEN THE ESTABLISHED
STATE RULE.  WILLIAMS V. PAYSON, 14 LA. ANN. REP. 7, 8(1859); LOUISIANA
V. FOLLETT, 33 LA. ANN. REP. 228, 230(1881); LEVINE V. MICHEL, 35 LA.
ANN. REP. 1121, 1124(1883). 

FROM AMONG THE PILOTS THE GOVERNOR WAS REQUIRED TO APPOINT THREE
RIVER PORT PILOT COMMISSIONERS.  LA. ACTS 1908, NO. 54, SEC. 1, 6 LA.
GEN. STAT. SEC. 9154(1939). 

FN3  "WHENEVER THERE EXISTS A NECESSITY FOR MORE PILOTS  ...  THE
...  BOARD OF RIVER PORT PILOT COMMISSIONERS SHALL HOLD EXAMINATIONS,
UNDER SUCH RULES AND REGULATIONS, AND WITH SUCH REQUIREMENTS AS THEY
SHALL HAVE PROVIDED, WITH THE GOVERNOR'S APPROVAL, PROVIDED THAT NO
APPLICANT SHALL BE CONSIDERED BY SAID BOARD, UNLESS HE SUBMITS PROPER
EVIDENCE OF MORAL CHARACTER AND IS A VOTER OF THIS STATE, AND SHALL
HAVE SERVED SIX MONTHS' APPRENTICESHIP IN HIS PROPOSED CALLING, AND
UPON THE CERTIFICATE OF THE BOARD TO THE GOVERNOR THAT THE APPLICANT
HAS COMPLIED WITH THE PROVISIONS OF THIS ACT, THE GOVERNOR MAY, IN HIS
DISCRETION, APPOINT TO EXISTING VACANCIES."  LA. ACTS 1908, NO. 54,
SEC. 4.  6 LA. GEN. STAT. SEC. 9157(1939). 

FN4  APPELLANTS WERE LICENSED TO PILOT COASTWISE VESSELS TO AND
THROUGH THE PORT UNDER FEDERAL LAW WHICH EXCLUDES STATES FROM
CONTROLLING PILOTAGE OF COASTAL SHIPPING.  REV. STAT. SECS. 4401, 4444,
46 U.S.C. SECS. 215, 364.  ALSO PRIOR TO THE PASSAGE OF LA. ACTS 1942,
NO. 134, THEY HAD PILOTED ALL CLASSES OF VESSELS WITHIN THE PORT OF NEW
ORLEANS.  THAT ACT DEPRIVED APPELLANTS OF AUTHORITY TO PILOT WITHIN THE
PORT AND CONFERRED IT EXCLUSIVELY UPON STATE RIVER PORT PILOTS.  THUS
APPELLANTS ALLEGE THEY HAVE BEEN DEPRIVED OF AN OPPORTUNITY TO MAKE A
LIVING UNLESS THEY CAN OBTAIN APPOINTMENT AS RIVER PORT PILOTS UNDER
THE PILOTAGE LAW. 

FN5  WHILE THE ACT DOES NOT SPECIFICALLY REQUIRE THAT THE
APPRENTICESHIPS BE PERFORMED UNDER INCUMBENT OFFICER PILOTS, THE STATE
SUPREME COURT HAS SO CONSTRUED IT. 

FN6  LA. REV. STAT. SEC. 2707(1869), REENACTED IN SEC. 4 OF LA. ACTS
1928, NO. 198, 6 LA. GEN. STAT. SEC. 9149(1939). 

FN7  APPELLANTS' COMPLAINT WAS DISMISSED FOR FAILURE TO STATE A CAUSE
OF ACTION.  THEREFORE WE CONSIDER THEIR ALLEGATIONS AS FACTS FOR THE
PURPOSE OF THIS DECISION. 

APPELLANTS' PRAYER HAD SOUGHT AN INJUNCTION AGAINST INTERFERENCE WITH
THEIR SERVING AS PILOTS, AND, IN THE ALTERNATIVE, SOUGHT MANDAMUS TO
COMPEL THE BOARD TO EXAMINE APPELLANTS AS REQUIRED BY LAW AND TO
CERTIFY THEM TO THE GOVERNOR.  THE LOUISIANA SUPREME COURT AFFIRMED THE
TRIAL COURT'S REFUSAL TO COMPEL THE BOARD TO EXAMINE APPELLANTS BECAUSE
THEY DID NOT POSSESS THE QUALIFICATIONS REQUIRED TO TAKE EXAMINATIONS -
SPECIFICALLY, THEY HAD NOT SERVED APPRENTICESHIPS. 

FN8  SEE GENERALLY, REPORT OF DEPARTMENTAL COMMITTEE ON PILOTAGE
(LONDON, 1911); PILOTAGE IN THE UNITED STATES, SPECIAL AGENTS SERIES,
DEPARTMENT OF COMMERCE (1917). 

FN9  SEE COOLEY V. BOARD OF WARDENS, 12 HOW.  299, 308, 312, 316,
326; EX PARTE MCNIEL, 13 WALL.  236, 238, 239. 

FN10  FOR AN EXCELLENT DESCRIPTION OF A PILOT'S LIFE AND DUTY, SEE
KANE, DEEP DELTA COUNTRY, C. 10(1944). 

FN11  SEE KANE, OP. CIT. SUPRA, NOTE 10.  SEE ALSO HEARINGS BEFORE
HOUSE COMMITTEE ON THE MERCHANT MARINE AND FISHERIES ON H.R. 9678, 64TH
CONG., 1ST SESS., 106, 214, 229, 279(1916)(COMPULSORY BARGE PILOTAGE). 

FN12  SEE GIESECKE, AMERICAN COMMERCIAL LEGISLATION BEFORE 1789(1910)
118; KANE, OP. CIT. SUPRA, NOTE 10. 

FN13  SEE KANE, OP. CIT. SUPRA, NOTE 10.  A LOUISIANA STATUTE
PROVIDES THAT "NO LICENSE SHALL BE GRANTED ANY PERSON TO KEEP A TAVERN
...  AT THE BALIZE, SOUTH WEST PASS OR ANY OTHER STATION FOR PILOTS,
NOR WITHIN THREE MILES OF SUCH STATION, UNLESS THE PERSON APPLYING FOR
SUCH LICENSE SHALL BE RECOMMENDED IN WRITING BY A MAJORITY OF THE
BRANCH PILOTS."  LA. REV. STAT. SEC. 2704(1869), 6 LA. GEN. STAT. SEC.
9166(1939). 

FN14  SEE KANE OP. CIT. SUPRA, NOTE 10, 128; SEE ALSO PILOTAGE IN THE
UNITED STATES, OP. CIT. SUPRA, NOTE 8, 8, 16. 

FN15  LA. ACTS (TERRITORY OF NEW ORLEANS) 1805, C. 24; SEE ALSO
SURREY, COMMERCE OF LOUISIANA, 1699-1763, C. III (1916). 

FN16  ALMOST ALL THE MARITIME STATES, SOME AS COLONIES BEFORE THE
REVOLUTION, ADOPTED COMPREHENSIVE PILOTAGE LAWS WHICH INCLUDED
UNRESTRICTED APPRENTICESHIP PROVISIONS.  MASS. LAWS, C. 13(1783); MASS.
REV. STAT. C. 32, SECS. 5-42(1836); NEW YORK LAWS, C. XVIII, SECS. I,
VII, X, XII (1819); PA. STATS. AT LARGE, C. 536, SEC. VI (1767); N.J.
REV. LAWS, TIT. 37, C. 7, SEC. 18(1847); 1 LAWS OF MD. (DORSEY) C. 63,
SECS. 2, 20, 23(1803); CODE OF VIRGINIA, C. 92, SECS. 4, 9(1849); N.C.
REV. STAT. C. 88, SECS. 1, 5, 14(1837).  SEE ALSO REPORT OF
DEPARTMENTAL COMMITTEE ON PILOTAGE, OP. CIT. SUPRA, NOTE 8, PART I. 

FN17  SEE NOTE 2 SUPRA. 

FN18  THE 1805 ACT REQUIRED DEPUTIES TO OBTAIN A CERTIFICATE FROM THE
MASTER AND WARDENS AS A CONDITION PRECEDENT TO THEIR APPOINTMENT.  BUT
SEC. 1 OF LA. ACTS 1806, C. 26, GAVE PILOTS BLANKET AUTHORITY TO
APPOINT THEIR OWN DEPUTIES.  PILOTS WERE, HOWEVER, MADE RESPONSIBLE FOR
THE NEGLECT OR MISCONDUCT OF THEIR DEPUTIES. 

FN19  LA. ACTS 1805, C. 24, SEC. 20; LA. ACTS 1837, NO. 106, SEC. 9. 

FN20  LA. ACTS 1805, C. 24, SEC. 17. 

FN21  LEVINE V. MICHEL, SUPRA, AT 1125; SEE ALSO NOTE 6 SUPRA. 

FN22  SEE KANE, OP. CIT. SUPRA, N. 10, AT 126-128; ALL OF THE STATE
AND COLONIAL STATUTES SET OUT IN NOTE 10, SUPRA, PROVIDED FOR
LIMITATION ON THE NUMBER OF PILOTS AND FIXED THE FEES THEY MIGHT
CHARGE.  THIS IS GENERALLY TRUE TODAY.  SEE N. 23 INFRA. 

THE DEPARTMENT OF COMMERCE REPORT, SUPRA, N. 8, AT 28 OBSERVED THAT:
"THE FORMATION OF PILOTS' ASSOCIATIONS WAS LARGELY A RESULT OF THE
INTENSE COMPETITION THAT FORMERLY PREVAILED AMONG THE PILOTS,  ...
LITTLE EFFORT WAS MADE TO MAINTAIN DEFINITE PILOT STATIONS.  INSTEAD,
THE DESIRE TO BE THE FIRST TO SPEAK A SHIP FREQUENTLY LED THE PILOTS TO
CRUISE GREAT DISTANCES FROM THE PORT. 

"ONE OF THE UNFORTUNATE RESULTS OF THE INTENSE COMPETITION OF PILOTS
WAS THE FACT THAT FREQUENTLY PILOTS COULD NOT BE HAD WHEN WANTED,
ALTHOUGH THEY MIGHT BE FAR OUT TO SEA IN QUEST OF BUSINESS.  ANOTHER
DRAWBACK WAS THAT PILOTS UNNECESSARILY EXPOSED THEMSELVES TO DANGER. 
AND A THIRD IMPORTANT DISADVANTAGE WAS THAT IT MADE THE EARNINGS
PRECARIOUS; A PILOT MIGHT EARN A GREAT DEAL THIS MONTH AND VERY LITTLE
THE NEXT.... 

"THE PILOTS THEMSELVES WERE THE FIRST TO SEE THE DISADVANTAGES OF THE
FREE OR COMPETITIVE SYSTEM AND TO TAKE STEPS TOWARD THE ORGANIZATION OF
ASSOCIATIONS.  THESE ASSOCIATIONS SOON DEVELOPED INTO STRONG WORKING
COMBINATIONS THAT ELIMINATED COMPETITION AND PLACED ON AN AMICABLE
BASIS MATTERS THAT FORMERLY PRODUCED MUCH SHARP RIVALRY. 

"FROM THE EVIDENCE AT HAND IT WOULD APPEAR THAT THE SHIPPING
INTERESTS AS WELL AS THE INSURANCE AND COMMERCIAL INTERESTS OF THE
PORTS ENCOURAGED THE PILOTS IN THE FORMATION OF THESE ASSOCIATIONS. 
THE ADVANTAGES OF A WELL-ORGANIZED PILOTAGE SYSTEM WERE AS APPARENT TO
THESE INTERESTS AS TO THE PILOTS THEMSELVES, FOR THE COMMERCE OF THE
PORT WAS NOT ONLY FACILITATED AND EXPEDITED BUT MADE MUCH SAFER BY
REASON OF THE BETTER ORGANIZATION OF THE PILOTAGE SYSTEM, WHICH CAME
WITH THE ELIMINATION OF COMPETITION. 

"SINCE ASSOCIATIONS HAVE BEEN FORMED ALONG THE PRESENT LINES PILOTAGE
GROUNDS HAVE BEEN ESTABLISHED  ...  THESE GROUNDS ARE WELL KNOWN TO
MARINERS, WHO MAY SAFELY COUNT ON FINDING THERE AT PRACTICALLY ALL
TIMES AND IN ALL CONDITIONS OF WEATHER A PILOT BOAT WITH A SUFFICIENT
NUMBER OF PILOTS ABOARD TO ACCOMMODATE ANY REASONABLE NUMBER OF VESSELS
THAT MAY COME.  THERE IS LITTLE CHANCE NOWADAYS THAT A VESSEL WILL FAIL
TO FIND A PILOT WHEN NEEDED.... 

"STILL ANOTHER ADVANTAGE OF THE PRESENT ORGANIZATION OF PILOTAGE
SYSTEMS IS THAT IT PERMITS THE MAINTENANCE OF A CENTRAL OFFICE WHICH IS
IN CONSTANT TOUCH WITH THE PILOT BOAT AND ARRANGES FOR THE ROTATION OF
PILOTS.  THE ASSOCIATION GENERALLY EMPLOYS AN AGENT TO LOOK AFTER THE
ROUTINE BUSINESS OF THE OFFICE." 

FN23  SEE N.J. LAWS 1898, C. 31, N.J. STAT. ANN. TITLE 12, C.
8(1939); PA. P.L. 542 OF 1803, PA. STATS. ANN. (PURDON) TITLE 55, C.
2(1930); MD. ANN. CODE (FLACK), ART. 74(1939); DEL. REV. CODE, C.
35(1935); VA. CODE, C. 142(1942); ALA. LAWS, 1931, P. 154, ALA. CODE,
TITLE 38, C. 2(1940); ORE.  COMP.  LAWS ANN., TITLE 105, C. 2(1940). 
SEE ALSO NOTE 16, SUPRA. 

FN24  PILOTAGE IN THE UNITED STATES, SUPRA, NOTE 8, P. 8. 

FN25  SEE E.G., MO. CONST., ART. 14, SEC. 13(1924). 

FN26  SEE E.G., IDAHO SESS. LAWS, 1915, C. 10, IDAHO CODE ANN., SEC.
57-701(1932); FLA. LAWS, 1933, C. 16088, FLA. STATS. ANN. SECS. 116.10,
116.11(1943); NEB. LAWS 1919, C. 190, SEC. 6, NEB. REV. STAT. SEC. 81
108(1943); TEX. ACTS 1909, P. 85, TEX. PENAL CODE (VERNON) ARTS. 432
438(1938). 

FN27  IN OLSEN V. SMITH, THE CONSTITUTIONALITY OF A TEXAS STATUTE
FORBIDDING ALL BUT PILOTS APPOINTED BY THE GOVERNOR TO SERVE WAS
CHALLENGED BY ONE WHO HAD NOT BEEN APPOINTED AND HAD BEEN ENJOINED FROM
SERVING AS A PILOT.  YICK WO V. HOPKINS, SUPRA, WAS RELIED ON AS
AUTHORITY FOR A CONTENTION THAT HE HAD BEEN DENIED RIGHTS PROTECTED BY
THE FOURTEENTH AMENDMENT INCLUDING EQUAL PROTECTION OF THE LAWS.  ID.
334.  BUT THIS COURT IN SUSTAINING THE CONSTITUTIONALITY OF THE
STATUTE, DID NOT SPECIFICALLY DISCUSS THE QUESTION HERE RAISED. 
THEREFORE WE DO NOT DEPEND UPON OLSEN V. SMITH AS A NECESSARILY
CONTROLLING AUTHORITY FOR OUR DECISION HERE. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

THE UNIQUE HISTORY AND CONDITIONS SURROUNDING THE ACTIVITIES OF RIVER
PORT PILOTS, SHORTLY RECOUNTED IN THE COURT'S OPINION, JUSTIFY A HIGH
DEGREE OF PUBLIC REGULATION.  BUT I DO NOT THINK THEY CAN SUSTAIN A
SYSTEM OF ENTAILMENT FOR THE OCCUPATION.  IF LOUISIANA WERE TO PROVIDE
BY STATUTE IN HAEC VERBA THAT ONLY MEMBERS OF JOHN SMITH'S FAMILY WOULD
BE ELIGIBLE FOR THE PUBLIC CALLING OF PILOT, I HAVE NO DOUBT THAT THE
STATUTE ON ITS FACE WOULD INFRINGE THE FOURTEENTH AMENDMENT.  AND THIS
WOULD BE TRUE, EVEN THOUGH JOHN SMITH AND THE MEMBERS OF HIS FAMILY HAD
BEEN PILOTS FOR GENERATIONS.  IT WOULD BE TRUE ALSO IF THE RIGHT WERE
EXPANDED TO INCLUDE A NUMBER OF DESIGNATED FAMILIES. 

IN FINAL ANALYSIS THIS IS, I THINK, THE SITUATION PRESENTED ON THIS
RECORD.  WHILE THE STATUTES APPLICABLE DO NOT PURPORT ON THEIR FACE TO
RESTRICT THE RIGHT TO BECOME A LICENSED PILOT TO MEMBERS OF THE
FAMILIES OF LICENSED PILOTS, THE CHARGE IS THAT THEY HAVE BEEN SO
ADMINISTERED.  AND THIS CHARGE NOT ONLY IS BORNE OUT BY THE RECORD BUT
IS ACCEPTED BY THE COURT AS HAVING BEEN SUSTAINED.  FN1 

THE RESULT OF THE DECISION THEREFORE IS TO APPROVE AS CONSTITUTIONAL
STATE REGULATION WHICH MAKES ADMISSION TO THE RANKS OF PILOTS TURN
FINALLY ON CONSANGUINITY.  BLOOD IS, IN EFFECT, MADE THE CRUX OF
SELECTION.  THAT, IN MY OPINION, IS FORBIDDEN BY THE FOURTEENTH
AMENDMENT'S GUARANTY AGAINST DENIAL OF THE EQUAL PROTECTION OF THE
LAWS.  THE DOOR IS THEREBY CLOSED TO ALL NOT HAVING BLOOD RELATIONSHIP
TO PRESENTLY LICENSED PILOTS.  WHETHER THE OCCUPATION IS CONSIDERED AS
HAVING THE STATUS OF "PUBLIC OFFICER" OR OF HIGHLY REGULATED PRIVATE
EMPLOYMENT, IT IS BEYOND LEGISLATIVE POWER TO MAKE ENTRANCE TO IT TURN
UPON SUCH A CRITERION.  THE AMENDMENT MAKES NO EXCEPTION FROM ITS
PROHIBITIONS AGAINST STATE ACTION ON ACCOUNT OF THE FACT THAT PUBLIC
RATHER THAN PRIVATE EMPLOYMENT IS AFFECTED BY THE FORBIDDEN
DISCRIMINATIONS.  THAT FACT SIMPLY MAKES VIOLATION ALL THE MORE CLEAR
WHERE THOSE DISCRIMINATIONS ARE SHOWN TO EXIST. 

IT IS NOT ENOUGH TO AVOID THE AMENDMENT'S FORCE THAT A FAMILIAL
SYSTEM MAY HAVE A TENDENCY OR, AS THE COURT PUTS IT, A DIRECT
RELATIONSHIP TO THE END OF SECURING AN EFFICIENT PILOTAGE SYSTEM. 
CLASSIFICATION BASED ON THE PURPOSE TO BE ACCOMPLISHED MAY BE SAID
ABSTRACTLY TO BE SOUND.  BUT WHEN THE TEST ADOPTED AND APPLIED IN FACT
IS RACE OR CONSANGUINITY, IT CANNOT BE USED CONSTITUTIONALLY TO BAR ALL
EXCEPT A GROUP CHOSEN BY SUCH A RELATIONSHIP FROM PUBLIC EMPLOYMENT. 
THAT IS NOT A TEST; IT IS A WHOLLY ARBITRARY EXERCISE OF POWER. 
CONCEIVABLY THE FAMILIAL SYSTEM WOULD BE THE MOST EFFECTIVE POSSIBLE
SCHEME FOR TRAINING MANY KINDS OF ARTISANS OR PUBLIC SERVANTS, SHEERLY
FROM THE VIEWPOINT OF SECURING THE HIGHEST DEGREE OF SKILL AND
COMPETENCE.  INDEED, SOMETHING VERY WORTH WHILE LARGELY DISAPPEARED
FROM OUR NATIONAL LIFE WHEN THE ONCE PREVALENT FAMILIAL SYSTEM OF
CONDUCTING MANUFACTURING AND MERCANTILE ENTERPRISES WENT OUT AND WAS
REPLACED BY THE HIGHLY IMPERSONAL CORPORATE SYSTEM FOR DOING BUSINESS. 

BUT THAT LOSS IS NOT ONE TO BE REPAIRED UNDER OUR SCHEME BY
LEGISLATION FRAMED OR ADMINISTERED TO PERPETUATE FAMILY MONOPOLIES OF
EITHER PRIVATE OCCUPATIONS OR BRANCHES OF THE PUBLIC SERVICE.  IT IS
PRECISELY BECAUSE THE AMENDMENT FORBIDS ENCLOSING THOSE AREAS BY
LEGISLATIVE LINES DRAWN ON THE BASIS OF RACE, COLOR, CREED AND THE
LIKE, THAT, IN CASES LIKE THIS, THE POSSIBLY MOST EFFICIENT METHOD OF
SECURING THE HIGHEST DEVELOPMENT OF SKILLS CANNOT BE ESTABLISHED BY
LAW.  ABSENT ANY SUCH BAR, THE PRESENCE OF SUCH A TENDENCY OR DIRECT
RELATIONSHIP WOULD BE EFFECTIVE FOR SUSTAINING THE LEGISLATION.  IT
CANNOT BE EFFECTIVE TO OVERCOME THE BAR ITSELF.  THE DISCRIMINATION
HERE IS NOT SHOWN TO BE CONSCIOUSLY RACIAL IN CHARACTER.  BUT I AM
UNABLE TO DIFFERENTIATE IN EFFECTS ONE FOUNDED ON BLOOD RELATIONSHIP. 

THE CASE THEREFORE FALLS SQUARELY WITHIN THE RULING IN YICK WO V.
HOPKINS, 118 U.S. 356,  FN2 NOT ONLY WITH RELATION TO THE LINE OF
DISCRIMINATION EMPLOYED, BUT ALSO IN THE FACT THAT UNCONSTITUTIONAL
ADMINISTRATION OF A STATUTE OTHERWISE VALID ON ITS FACE INCURS THE SAME
CONDEMNATION AS IF THE STATUTE HAD INCORPORATED THE DISCRIMINATION IN
TERMS.  APPELLANTS HERE ARE ENTITLED, IN MY JUDGMENT, TO THE SAME
RELIEF AS WAS AFFORDED IN THE YICK WO CASE. 

FN1  THE RECORD SHOWS THAT IN A FEW INSTANCES OVER A COURSE OF
SEVERAL YEARS NONRELATIVES OF LICENSED PILOTS HAVE RECEIVED APPOINTMENT
AS APPRENTICES AND QUALIFIED.  BUT THE GENERAL COURSE OF ADMINISTRATION
HAS BEEN THAT SUCH APPOINTMENTS ARE LIMITED TO RELATIVES. 

FN2  TO LIKE EFFECT IS ALSTON V. SCHOOL BOARD OF NORFOLK, 112 F.2D
992; CF. BURT V. CITY OF NEW YORK, 156 F.2D 791; REMEDIES FOR
DISCRIMINATION BY STATE AND LOCAL ADMINISTRATIVE BODIES (1946) 60 HARV.
L. REV. 271. 

MR. JUSTICE REED, MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN IN
THIS DISSENT. 
..END :











I.C.C. V. MECHLING, 330 U.S. 567 


NO. 72.  ARGUED FEBRUARY 12, 13, 1947.  - DECIDED MARCH 31, 1947.  -
AFFIRMED. 


1.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION AUTHORIZING, ON THE
CHICAGO-TO-THE-EAST LEG OF GRAIN SHIPMENTS ORIGINATING WEST OF CHICAGO,
A PROPORTIONAL RATE 3 CENTS PER HUNDRED POUNDS HIGHER ON EX-BARGE THAN
ON EX-LAKE OR EX-RAIL SHIPMENTS, HELD NOT BASED ON ADEQUATE FINDINGS
AND EVIDENCE, AND THEREFORE UNLAWFUL UNDER THE INTERSTATE COMMERCE ACT
AS AMENDED BY THE TRANSPORTATION ACT OF 1940.  PP. 572-573, 583. 

(A)  THE POLICY AND PROVISIONS OF THE TRANSPORTATION ACT OF 1940
FORBID APPROVAL BY THE COMMISSION OF BARGE RATES OR BARGE-RAIL RATES
WHICH DO NOT PRESERVE THE INHERENT ADVANTAGES OF CHEAPER WATER
TRANSPORTATION, BUT WHICH DISCRIMINATE AGAINST WATER CARRIERS AND THE
GOODS THEY TRANSPORT.  PP. 574-577. 

(B)  CHICAGO-TO-THE-EAST RAILROADS CAN NOT LAWFULLY CHARGE MORE FOR
CARRYING EX-BARGE THAN FOR CARRYING EX-LAKE OR EX-RAIL GRAINS TO AND
FROM THE SAME LOCALITIES, UNLESS THE EASTERN HAUL OF THE EX-BARGE GRAIN
COSTS THE EASTERN RAILROADS MORE TO HAUL THAN DOES EX-RAIL OR EX-LAKE
GRAIN.  P. 577. 

(C)  SECTION 307(D) OF PART III OF THE INTERSTATE COMMERCE ACT,
AUTHORIZING THE COMMISSION TO FIX DIFFERENTIALS AS BETWEEN THROUGH
WATER-RAIL AND THROUGH ALL-RAIL RATES, DOES NOT AUTHORIZE THE
COMMISSION TO NEUTRALIZE THE EFFECTIVE PROHIBITIONS OF OTHER PROVISIONS
WHICH WERE STRENGTHENED IN 1940 EXPRESSLY TO PREVENT DISCRIMINATION
AGAINST WATER CARRIERS.  P. 577. 

(D)  THE COMMISSION, NO MORE THAN IT COULD REQUIRE THE BARGE CARRIERS
TO RAISE RATES INBOUND TO CHICAGO WHICH IT ACCEPTED AS REASONABLE, CAN
NOT LAWFULLY BRING ABOUT THE SAME PROHIBITED RESULT BY RAISING THE
RAILROAD RATES CHARGED BY EASTERN ROADS FOR EX-BARGE GRAIN SHIPMENTS
EAST FROM CHICAGO.  PP. 577-578. 

(E)  THE COMMISSION'S ORDER IS NOT SUPPORTED BY ITS CONCLUSION THAT
IT IS "INEQUITABLE" FOR THE BARGES TO CHARGE A MUCH LOWER RATE FOR THE
INBOUND GRAIN HAUL THAN THE COMPETITIVE WESTERN RAILROADS CAN AFFORD TO
CHARGE FOR THE SAME HAUL.  P. 578. 

(F)  IT IS NOT WITHIN THE PROVINCE OF THE COMMISSION TO SO ADJUST
RATES AS TO EQUALIZE THE TRANSPORTATION COST OF BARGE SHIPPERS WITH
THAT OF SHIPPERS WHO DO NOT HAVE ACCESS TO BARGE SERVICE OR TO PROTECT
THE TRAFFIC OF RAILROADS FROM BARGE COMPETITION.  P. 579. 

(G)  CONGRESS HAS NOT GRANTED THE COMMISSION DISCRETIONARY POWER TO
APPROVE ANY TYPE OF RATES WHICH WOULD REDUCE THE "INHERENT ADVANTAGE"
OF BARGE TRANSPORTATION IN WHOLE OR IN PART.  P. 579. 

(H)  PARTIAL COMPENSATION OF EASTERN ROADS FOR ADDITIONAL TRANSIT
COSTS CAN NOT BE MADE IN A MANNER WHICH SINGLES OUT EX-BARGE GRAIN FOR
DISCRIMINATORY TREATMENT IN VIOLATION OF THE INTERSTATE COMMERCE ACT. 
P. 583. 

2.  TO JUSTIFY THE HIGHER PROPORTIONAL RATES ON EX-BARGE GRAIN, THE
COMMISSION WOULD HAVE TO MAKE FINDINGS SUPPORTED BY EVIDENCE TO SHOW
HOW MUCH GREATER IS THE COST TO THE EASTERN ROADS OF RESHIPPING EX
BARGE GRAIN THAN OF RESHIPPING EX-LAKE OR EX-RAIL GRAIN MOVING FROM THE
SAME LOCALITIES AND REQUIRING THE SAME SERVICE AS DOES THE EX-BARGE
GRAIN.  THE "UNSIFTED AVERAGES" PUT FORWARD BY THE COMMISSION IN THIS
CASE DO NOT MEASURE THE ALLEGEDLY GREATER COSTS NOR SHOW THAT THEY
EXIST.  P. 583. 

3.  SINCE IN THIS CASE THE UNITED STATES WAS A NECESSARY PARTY TO THE
PROCEEDINGS IN THE DISTRICT COURT, THE ORDER OF THAT COURT REQUIRING
THE COMMISSION TO SERVE NOTICE OF APPEAL ON THE UNITED STATES WAS NOT
PREJUDICIAL ERROR.  P. 573, N. 6. 

INTERSTATE COMMERCE COMMISSION V. MECHLING, DOING BUSINESS AS A.L.
MECHLING BARGELINE, ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

IN 1939 THE EASTERN RAILROADS FILED WITH THE INTERSTATE COMMERCE
COMMISSION SCHEDULES WHICH IMPOSED ON EX-BARGE GRAIN THE LOCAL RATE
FROM CHICAGO EAST, BUT ALLOWED EX-RAIL AND EX-LAKE GRAIN THE BENEFIT OF
8 1/2-CENT LOWER "RESHIPPING" RATES ON THE EASTERN HAUL.  THE
COMMISSION, AFTER A HEARING, MADE AN ORDER WHICH LEFT THE RAILROAD
PROPOSED HIGHER RATES IN EFFECT, BUT STATED THAT "IN A PROPER
PROCEEDING WE MIGHT PRESCRIBE PROPORTIONAL RATES ON THE EX-BARGE
TRAFFIC LOWER THAN LOCAL RATES OR JOINT BARGERAIL RATES LOWER THAN THE
COMBINATIONS."  248 I.C.C. 307.  A DISTRICT COURT SET ASIDE THE
COMMISSION'S ORDER ON THE GROUND THAT FIXING HIGHER RATES FOR EX-BARGE
GRAIN THAN FOR EX-RAIL AND EX-LAKE GRAIN "DISCRIMINATES AGAINST WATER
COMPETITION BY THE USERS OF BARGES."  44 F.SUPP.  368.  ON APPEAL THIS
COURT REVERSED, BUT WITH "NO IMPLICATION OF APPROVAL OF ANY RATES HERE
INVOLVED."  I.C.C. V. INLAND WATERWAYS CORP., 319 U.S. 671.  IN FURTHER
PROCEEDINGS, THE COMMISSION AUTHORIZED EX-BARGE GRAIN RATES EAST FROM
CHICAGO 3 CENTS PER HUNDRED POUNDS HIGHER THAN RATES FOR EX-RAIL AND EX
LAKE GRAIN.  262 I.C.C. 7.  THE APPELLEES THEN BROUGHT THIS SUIT IN THE
DISTRICT COURT TO SET ASIDE THE ORDER OF THE COMMISSION, INSOFAR AS IT
PERMITTED THE RAILROADS TO PUT THE HIGHER EX-BARGE GRAIN RATES INTO
EFFECT.  THE DISTRICT COURT SET ASIDE AND ENJOINED ENFORCEMENT OF THE
ORDER.  THE COMMISSION APPEALED TO THIS COURT.  AFFIRMED, P. 583. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A DISTRICT COURT OF THREE JUDGES ENJOINED IN PART AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION, AND THE CASE IS HERE ON APPEAL UNDER 28
U.S.C. SECS. 47, 47A, AND 345.  THE COMMISSION ORDER SPECIFICALLY
RELATES TO THE RAILROAD RATE FOR GRAIN TRANSPORTED FROM CHICAGO,
ILLINOIS, TO NEW YORK AND OTHER EASTERN POINTS,  FN1  AFTER THAT GRAIN
HAS BEEN TRANSPORTED TO CHICAGO FROM THE WEST BY CONNECTING RAIL OR
WATER CARRIERS ON THROUGH BILLS OF LADING.  IN SUCH THROUGH SHIPMENTS
THE THROUGH RATE IS A COMBINATION OF DISTINCTLY SEPARATE RATES CHARGED
RESPECTIVELY FOR SHIPMENTS FROM THE WEST TO CHICAGO AND FROM CHICAGO TO
THE EAST.  THE CHARGE FIXED FOR THE LAST LEG OF THE SHIPMENT IS CALLED,
IN RAILROAD PARLANCE, A "RESHIPPING" OR "PROPORTIONAL" RATE.  IT IS
LOWER FROM CHICAGO TO THE EAST THAN A "LOCAL" RATE CHARGED FOR A
SHIPMENT FROM CHICAGO TO THE EAST WHICH ORIGINATES IN CHICAGO.  SEE
ATCHISON, T. & S.F.R. CO. V. UNITED STATES, 279 U.S. 768, 771. 

FOR MANY YEARS EASTERN RAILROADS HAVE CARRIED GRAIN EAST FROM CHICAGO
AT RESHIPPING RATES 8 1/2 CENTS PER HUNDRED POUNDS LOWER THAN LOCAL
RATES.  UP TO 1939 THIS CHICAGO-TO-THE-EAST RESHIPPING RATE HAD BEEN
IDENTICAL FOR GRAIN, WHETHER BROUGHT TO CHICAGO BY A CONNECTING
RAILROAD, CONNECTING LAKE STEAMER, OR CONNECTING BARGE.  ALTHOUGH BARGE
LINES WERE MUCH SLOWER THAN RAILROADS, THEY WERE LESS EXPENSIVE TO
OPERATE AND THEREFORE COULD AFFORD TO TRANSPORT FREIGHT MUCH MORE
CHEAPLY THAN RAILROADS.  THE RESULT WAS THAT THE BARGE-RAIL RATE FROM A
POINT IN THE WEST TO EASTERN DESTINATIONS WAS CONSIDERABLY CHEAPER THAN
THE ALL-RAIL RATE FROM THAT POINT - THE DIFFERENCE BEING MEASURED BY
THE RELATIVE CHEAPNESS OF SHIPPING OVER THE BARGE LEG OF THE THROUGH
ROUTE.  BECAUSE OF THE CHEAPER BARGE RATES, MUCH OF THE RAILROADS'
GRAIN FREIGHT BUSINESS FROM LOCALITIES WHICH COULD BE SERVED BY EITHER
BARGE OR RAIL SHIFTED TO THE BARGES FN2  AFTER 1933 WHEN BARGE SERVICE
FROM WESTERN GRAIN LOCALITIES TO CHICAGO WAS RESUMED.  FN3  THIS WAS
THE BARGE VERSUS RAIL COMPETITIVE SITUATION WHICH EXISTED WHEN IN 1939
THE EASTERN RAILROADS FILED SCHEDULES WITH THE COMMISSION WHICH IMPOSED
ON EX-BARGE GRAIN THE LOCAL RATE FROM CHICAGO EAST, BUT ALLOWED EX-RAIL
AND EX-LAKE GRAIN THE BENEFIT OF THE 8 1/2 CENT LOWER "RESHIPPING"
RATES ON THE EASTERN HAUL.  THE RESULT OF THIS RATE SCHEDULE WOULD HAVE
BEEN THAT, ALTHOUGH BARGE LINES COULD STILL HAVE CARRIED GRAIN FROM THE
WEST TO CHICAGO MUCH MORE CHEAPLY THAN THE RAILROADS COULD, BY THE TIME
THE GRAIN HAD BEEN RESHIPPED TO NEW YORK OR OTHER EASTERN POINTS, THE
BARGE-RAIL CARRIAGE WOULD HAVE BEEN MORE EXPENSIVE TO THE SHIPPER THAN
ALL-RAIL CARRIAGE.  THIS WOULD HAVE PUT THE BARGE LINES AT A
COMPETITIVE DISADVANTAGE WITH RAILROADS IN BARGE-SERVED LOCALITIES.  AT
THE COMMISSION HEARING TO TEST THE VALIDITY OF THE HIGHER EX-BARGE
GRAIN RATES, A RAILROAD REPRESENTATIVE CANDIDLY STATED THAT THE PURPOSE
OF THE PROPOSAL WAS TO "DRIVE THIS BUSINESS OFF THE WATER AND BACK ONTO
THE RAILS WHERE IT BELONGS."  248 I.C.C. 307, 321.  THIS PURPOSE WOULD
MOST PROBABLY HAVE BEEN ACCOMPLISHED HAD THE HIGH EX-BARGE RESHIPPING
RATES GONE INTO EFFECT. 

THE COMMISSION, AFTER A HEARING, MADE AN ORDER WHICH LEFT THE
RAILROAD-PROPOSED HIGHER RATES IN EFFECT, BUT STATED THAT "IN A PROPER
PROCEEDING WE MIGHT PRESCRIBE PROPORTIONAL RATES ON THE EX-BARGE
TRAFFIC LOWER THAN LOCAL RATES OR JOINT BARGE-RAIL RATES LOWER THAN THE
COMBINATIONS."  248 I.C.C. 307, 311.  A DISTRICT COURT SET ASIDE THE
COMMISSION'S ORDER ON THE GROUND THAT FIXING HIGHER RATES FOR EX-BARGE
GRAIN THAN FOR EX-RAIL AND EX-LAKE GRAIN "DISCRIMINATES AGAINST WATER
COMPETITION BY THE USERS OF BARGES."  CARGILL, INC. V. UNITED STATES,
44 F.SUPP.  368, 375.  ON APPEAL THIS COURT REVERSED, SAYING THAT ITS
DECISION CARRIED "NO IMPLICATION OF APPROVAL OF ANY RATES HERE
INVOLVED."  INTERSTATE COMMERCE COMMISSION V. INLAND WATERWAYS CORP.,
319 U.S. 671, 691.  IT RESERVED FOR FUTURE CONSIDERATION IN A
PROCEEDING BEFORE THE COMMISSION THE AMOUNT, IF ANY, WHICH THE EASTERN
RAILROADS COULD INCREASE "RESHIPPING" RATES FOR EX-BARGE OVER THOSE FOR
EX-LAKE AND EX-RAIL GRAIN.  ID. AT 687-688, 691. 

THE COMMISSION HAS NOW CONSIDERED AND DECIDED THAT QUESTION IN A
PROPER PROCEEDING.  262 I.C.C. 7.  IT FOUND THE ORIGINALLY PROPOSED 8
1/2 CENT HIGHER RATES FOR EX-BARGE GRAIN TO BE UNLAWFUL AND REQUIRED
THE EASTERN ROADS TO CANCEL THE SCHEDULES FIXING THOSE INCREASED
RESHIPPING RATES.  THIS PART OF THE COMMISSION'S ORDER HAS NOT BEEN
CHALLENGED.  BUT IT ALSO CONCLUDED THAT EX-BARGE GRAIN RATES EAST FROM
CHICAGO WOULD BE REASONABLE AND LAWFUL EVEN THOUGH THEY WERE 3 CENTS
PER HUNDRED POUNDS HIGHER THAN RATES FOR EX-RAIL AND EX-LAKE GRAIN. 
CONSEQUENTLY, THE COMMISSION PROVIDED THAT ITS ORDER CANCELLING THE
SCHEDULED RESHIPPING RATE INCREASE WAS "WITHOUT PREJUDICE TO THE FILING
OF NEW SCHEDULES IN CONFORMITY WITH THE FINDINGS HEREIN."  THUS, THE
EFFECT OF THE WHOLE ORDER WAS TO PERMIT, IF NOT REQUIRE, THE RAILROADS
TO CHARGE HIGHER RESHIPMENT RATES FOR EX-BARGE THAN FOR EX-LAKE AND EX
RAIL GRAIN.  UNDER THESE RATES, BARGE-RAIL GRAIN SHIPMENTS WOULD BE A
TRIFLE LESS EXPENSIVE THAN ALL-RAIL TRANSPORTATION BETWEEN THE SAME
POINTS.  FN4  BUT THE THROUGH BARGE-RAIL TRANSPORTATION WOULD COST MORE
THAN IT WOULD HAVE IF THE THROUGH RATES HAD ACCURATELY REFLECTED THE
CHEAPER IN-BOUND BARGE RATES.  THE COMMISSION CONSIDERED THESE HIGHER
RATES FOR EX-BARGE GRAIN, WHICH RESULTED IN HIGHER THROUGH RATES,
JUSTIFIED SO LONG AS THERE REMAINED TO EX-BARGE GRAIN "A FAIR
OPPORTUNITY TO MOVE IN COMPETITION WITH LAKE-RAIL AND ALL-RAIL
TRAFFIC." 

APPELLEES  FN5  THEN FILED THIS ACTION IN THE DISTRICT COURT AGAINST
THE COMMISSION AND THE UNITED STATES TO CANCEL, ANNUL, AND ENJOIN
ENFORCEMENT OF THE ORDER, INSOFAR AS IT PERMITTED THE RAILROADS TO PUT
THESE NEW HIGHER EX-BARGE GRAIN RATES INTO EFFECT.  THE COMPLAINTS
CHARGED THAT THE ORDER WAS IN VIOLATION OF THE INTERSTATE COMMERCE ACT
AS AMENDED BY THE TRANSPORTATION ACT OF 1940, 54 STAT. 898.  IT WAS
CONTENDED THAT THE ORDER WAS VOID BECAUSE IT APPROVED RAILROAD RATES
WHICH PENALIZED EX-BARGE GRAIN TO THE EXTENT OF 3 CENTS PER HUNDRED
POUNDS, SOLELY BECAUSE THE GRAIN HAD BEEN TRANSPORTED TO CHICAGO IN
BARGES, AND WITHOUT EVIDENCE OR ADEQUATE FINDINGS THAT IT COST THE
RAILROADS 3 CENTS MORE TO TRANSPORT EX-BARGE THAN IT COST TO TRANSPORT
EX-RAIL OR EX-LAKE GRAIN.  THE UNITED STATES, REPRESENTED BY THE
DEPARTMENT OF JUSTICE, APPEARING AS A DEFENDANT, ADMITTED THESE
ALLEGATIONS.  THE INTERSTATE COMMERCE COMMISSION INTERVENED AND
DEFENDED THE ORDER.  AFTER A HEARING, THE DISTRICT COURT FOUND THAT THE
ALLEGATIONS WERE SUSTAINED.  ACCORDINGLY, IT SET ASIDE AND ENJOINED
ENFORCEMENT OF THE ORDER TO THE EXTENT THAT IT PERMITTED THE 3-CENT
EXTRA CHARGE.  FN6  THE RESULT OF THE DISTRICT COURT'S JUDGMENT WAS TO
LEAVE IN EFFECT THE LONG-EXISTING EASTERN RAILROAD RATES WHICH PROVIDE
THE SAME RATES FOR CARRYING EX-BARGE, EX-LAKE, AND EX-RAIL GRAIN EAST
FROM CHICAGO. 

JUDICIAL REVIEW OF THE FINDINGS OF FACT AND THE EXPERT JUDGMENTS OF
THE INTERSTATE COMMERCE COMMISSION WHERE THE COMMISSION ACTS WITHIN ITS
STATUTORY AUTHORITY IS EXTREMELY LIMITED.  AND SEC. 307(D) OF THE 1940
ACT  FN7  AUTHORIZES THE COMMISSION "IN THE CASE OF A THROUGH ROUTE" TO
"PRESCRIBE SUCH REASONABLE DIFFERENTIALS AS IT MAY FIND TO BE JUSTIFIED
BETWEEN ALL-RAIL RATES AND THE JOINT RATES IN CONNECTION WITH SUCH
COMMON CARRIER BY WATER."  CF. UNITED STATES V. CHICAGO HEIGHTS
TRUCKING CO., 310 U.S. 344, 352-353; BOARD OF TRADE OF KANSAS CITY V.
UNITED STATES, 314 U.S. 534, 546.  BUT THE CONGRESSIONAL DEBATES AND
COMMITTEE REPORTS ON THE 1940 ACT AND THE STATUTORY PROVISIONS WHICH
EMERGED FROM THIS LEGISLATIVE BACKGROUND SHOW THAT CONGRESS ENUNCIATED
POSITIVE POLICIES AND SPECIFIC LIMITING STANDARDS WHICH IT EXPECTED THE
COMMISSION TO FOLLOW IN FIXING RATES, INCLUDING "DIFFERENTIALS" BETWEEN
ALL-RAIL AND WATER-RAIL RATES.  THE PROVISIONS OF THE TRANSPORTATION
ACT OF 1940 WHICH BROUGHT WATER CARRIERS UNDER INTERSTATE COMMERCE
COMMISSION JURISDICTION WERE VIGOROUSLY OPPOSED IN CONGRESS BY THOSE
WHO FEARED THAT THE COMMISSION MIGHT RAISE BARGE RATES IN ORDER TO
ENABLE RAILROADS BETTER TO COMPETE WITH INHERENTLY CHEAPER WATER
TRANSPORTATION.  THESE OPPONENTS WERE REPEATEDLY ASSURED BY SPONSORS OF
THE 1940 ACT WHO ADVOCATED COMMISSION REGULATION OF WATER
TRANSPORTATION THAT THE QUESTIONED LEGISLATION UNEQUIVOCALLY REQUIRED
THE COMMISSION TO FIX RATES WHICH WOULD PRESERVE FOR SHIPPERS THE
INHERENT ADVANTAGES OF BARGE TRANSPORTATION:  LOWER COST OF EQUIPMENT,
OPERATION, AND THEREFORE SERVICE.  FN8  AS SENATOR WHEELER, SPOKESMAN
OF THE INTERSTATE COMMERCE COMMITTEE OF WHICH HE WAS CHAIRMAN, POINTED
OUT ON THE FLOOR OF THE SENATE, THE 1940 ACT CONTAINS AT LEAST THREE
SEPARATE PROVISIONS, A PRIME PURPOSE OF WHICH IS TO PROTECT THE WATER
CARRIER'S NATURAL ADVANTAGES.  FN9  THE ACT'S DECLARATION OF POLICY
EMPHASIZES THAT THE ACT MUST BE "SO ADMINISTERED AS TO RECOGNIZE AND
PRESERVE THE INHERENT ADVANTAGES" OF "ALL MODES OF TRANSPORTATION
SUBJECT TO ...  THIS ACT."  54 STAT. 898, 899, 49 U.S.C. NOTES
PRECEDING SECS. 1, 301, 901.  IN ORDER THAT THE INHERENT ADVANTAGES
MIGHT BE PRESERVED SEC. 305(C), 54 STAT. 898, 935, 49 U.S.C. SEC.
905(C), PROVIDED THAT "DIFFERENCES IN ...  RATES  ...  AND PRACTICES OF
A WATER CARRIER IN RESPECT OF WATER TRANSPORTATION FROM THOSE IN EFFECT
BY A RAIL CARRIER WITH RESPECT TO RAIL TRANSPORTATION SHALL NOT BE
DEEMED TO CONSTITUTE UNJUST DISCRIMINATION ...  OR AN UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICE  ..."  AND SEC. 307(F), 54 STAT. 898,
938, 49 U.S.C. SEC. 907(F), REQUIRING THE COMMISSION, IN FIXING RATES,
TO CONSIDER "THE EFFECT OF RATES UPON THE MOVEMENT OF TRAFFIC BY THE
...  CARRIERS FOR WHICH THE RATES ARE PRESCRIBED," EMPHASIZED THAT THE
COMMISSION MUST CONSIDER IN FIXING RATES "...  THE NEED, IN THE PUBLIC
INTEREST, OF ADEQUATE AND EFFICIENT WATER TRANSPORTATION SERVICE AT THE
LOWEST COST CONSISTENT WITH THE FURNISHING OF SUCH SERVICE  ..."  IN
ADDITION SEC. 3(4) OF THE PRE-EXISTING ACT WHICH FORBADE CARRIERS TO
"DISCRIMINATE IN THEIR RATES, FARES, AND CHARGES BETWEEN CONNECTING
LINES," 41 STAT. 479, WAS AMENDED BY THE 1940 ACT SPECIFICALLY TO
INCLUDE WATER CARRIERS, SUCH AS THESE BARGE LINES, WITHIN THE
DEFINITION OF CONNECTING CARRIERS.  54 STAT. 898, 903-904, 49 U.S.C.
SEC. 3(4).  FINALLY SEC. 2 OF THE PRE-EXISTING ACT HAS LONG FORBIDDEN
THE COMMISSION TO AUTHORIZE RAILROADS TO CHARGE ONE PERSON MORE THAN
ANOTHER FOR "A LIKE AND CONTEMPORANEOUS SERVICE IN THE TRANSPORTATION
OF A LIKE KIND OF TRAFFIC UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND
CONDITIONS  ..."  24 STAT. 379, 380, 40 U.S.C. SEC. 2. 

THE FOREGOING PROVISIONS FLATLY FORBID THE COMMISSION TO APPROVE
BARGE RATES OR BARGE-RAIL RATES WHICH DO NOT PRESERVE INTACT THE
INHERENT ADVANTAGES OF CHEAPER WATER TRANSPORTATION, BUT DISCRIMINATE
AGAINST WATER CARRIERS AND THE GOODS THEY TRANSPORT.  CONCRETELY, THE
PROVISIONS MEAN IN THIS CASE THAT CHICAGO-TO-THE-EAST RAILROADS CANNOT
LAWFULLY CHARGE MORE FOR CARRYING EX-BARGE THAN FOR CARRYING EX-LAKE OR
EX-RAIL GRAINS TO AND FROM THE SAME LOCALITIES, UNLESS THE EASTERN HAUL
OF THE EX-BARGE GRAIN COSTS THE EASTERN RAILROADS MORE TO HAUL THAN
DOES EX-RAIL OR EX-LAKE GRAIN.  AND SEC. 307(D), AUTHORIZING THE
COMMISSION TO FIX DIFFERENTIALS AS BETWEEN THROUGH WATER-RAIL AND
THROUGH ALL-RAIL RATES, DOES NOT AUTHORIZE THE COMMISSION TO NEUTRALIZE
THE EFFECTIVE PROHIBITIONS OF THE OTHER PROVISIONS WHICH WERE
STRENGTHENED IN 1940 EXPRESSLY TO PREVENT A DISCRIMINATION AGAINST
WATER CARRIERS.    THE BASIC ERROR OF THE COMMISSION HERE IS THAT IT
SEEMED TO ACT ON THE ASSUMPTION THAT THE CONGRESSIONAL PROHIBITIONS OF
RAILROAD RATE DISCRIMINATIONS AGAINST WATER CARRIERS WERE NOT
APPLICABLE TO SUCH DISCRIMINATIONS IF ACCOMPLISHED BY THROUGH RATES. 
BUT THIS ASSUMPTION WOULD PERMIT THE DESTRUCTION OR CURTAILMENT OF THE
ADVANTAGES TO SHIPPERS OF CHEAP BARGE TRANSPORTATION WHENEVER THE
TRANSPORTED GOODS WERE CARRIED BEYOND THE END OF THE BARGE LINE.  THIS
CASE PROVES THAT.  FOR WHILE CHICAGO IS A GREAT GRAIN CENTER, IT CANNOT
CONSUME ALL BARGE-TRANSPORTED GRAIN.  THAT GRAIN, LIKE OTHER GRAIN
COMING TO CHICAGO FOR MARKETING OR PROCESSING, IS RESHIPPED TO DISTANT
DESTINATIONS.  TO PENALIZE ITS TRANSPORTATION IN BARGES BY CHARGING
DISCRIMINATORY RATES FROM CHICAGO TO ITS FINAL DESTINATION HAS
PRECISELY THE SAME CONSEQUENCE AS WOULD FOLLOW FROM RAISING BARGE RATES
INBOUND TO CHICAGO.  RECOGNIZING THAT IT COULD NOT REQUIRE THESE BARGE
CARRIERS TO RAISE THESE INBOUND RATES WHICH IT ACCEPTED AS REASONABLE
N10, THE COMMISSION HAS HERE APPROVED AN ORDER WHICH WOULD BRING ABOUT
THE SAME PROHIBITED RESULT BY RAISING THE RAILROAD RATES CHARGED BY
EASTERN ROADS FOR EX-BARGE GRAIN SHIPMENTS EAST FROM CHICAGO.  CONGRESS
HAS FORBIDDEN THIS. 

THE COMMISSION DID NOT APPROVE INCREASES IN THESE RESHIPPING RATES ON
THE GROUND THAT THE EASTERN ROADS WERE NOT RECEIVING A FAIR RETURN FOR
CARRYING EX-BARGE GRAIN.  AND THE GROUNDS ON WHICH THE COMMISSION
RESTED ITS ORDER DO NOT SUPPORT THE RATES APPROVED.  MOST OF THE
ARGUMENT OF THE COMMISSION IN SUPPORT OF ITS CONCLUSIONS AND ORDER
TREATED MATTERS WHICH HAD NO RELATION TO WHAT THE RESHIPPING RATES FROM
CHICAGO SHOULD BE.  THE LENGTH OF THE TOTAL BARGE-RAIL HAUL EMPHASIZED
BY THE COMMISSION, HOWEVER SIGNIFICANT IT MIGHT BE UNDER OTHER
CIRCUMSTANCES, HAS NO RELEVANCE HERE.  FOR THE LOWER RATES ALLOWED EX
RAIL AND EX-LAKE GRAINS INCLUDE CARRIAGE FOR DISTANCES IDENTICAL WITH
THE EX-BARGE HAULS.  NOR IS THE COMMISSION'S ORDER SUPPORTED BY ITS
CONCLUSION THAT IT IS "INEQUITABLE" FOR THE BARGES TO CHARGE A MUCH
LOWER RATE FOR THE INBOUND GRAIN HAUL THAN THE COMPETITIVE WESTERN
RAILROADS CAN AFFORD TO CHARGE FOR THE SAME HAUL, RESULTING IN BARGE
RAIL RATES LOWER THAN ALL-RAIL RATES FROM THE SAME LOCALITIES.  FN11
FOR THIS IS NO REASON FOR AUTHORIZING A HIGHER RATE TO EASTERN
RAILROADS WHICH DO NOT COMPETE WITH THE BARGES AT ALL.  IF THE WESTERN
RAILROADS NEED RELIEF FROM THE COMPETITION OF BARGES, THAT IS A
QUESTION WHOLLY UNRELATED TO THE RATES OF EASTERN ROADS.  FURTHERMORE,
CONGRESS HAS DECIDED THIS QUESTION OF EQUITABLE RATES AS BETWEEN
RAILROADS AND BARGES.  IT HAS DECLARED IN UNMISTAKABLE TERMS THAT THE
"INHERENT ADVANTAGE" OF THE LOWER COST OF BARGE CARRIAGE AS COMPARED
WITH THAT OF RAILROADS MUST BE PASSED ON TO THOSE WHO SHIP BY BARGE. 
IT IS THEREFORE NOT WITHIN THE PROVINCE OF THE COMMISSION TO ADJUST
RATES, EITHER TO EQUALIZE THE TRANSPORTATION COST OF BARGE SHIPPERS
WITH THAT OF SHIPPERS WHO DO NOT HAVE ACCESS TO BARGE SERVICE OR TO
PROTECT THE TRAFFIC OF RAILROADS FROM BARGE COMPETITION.  FOR CONGRESS
LEFT THE COMMISSION NO DISCRETIONARY POWER TO APPROVE ANY TYPE OF RATES
WHICH WOULD REDUCE THE "INHERENT ADVANTAGE" OF BARGE TRANSPORTATION IN
WHOLE OR IN PART.  CF. MITCHELL V. UNITED STATES, 313 U.S. 80, 97. 

RELATED TO THE QUESTION JUST DISCUSSED, IS THE COMMISSION'S
CONTENTION HERE THAT PERMITTING RESHIPPING RATES FOR EX-BARGE GRAIN TO
REMAIN EQUAL TO THE RATES FOR EX-RAIL AND EX-LAKE GRAIN WILL CAUSE
"INCURABLE CHAOS" IN AND DISRUPT THE NATIONAL RAIL RATE STRUCTURE WHICH
REFLECTS MANY INTERRELATED CONDITIONS GOVERNING THE TRANSPORTATION OF
GRAIN FROM WEST OF CHICAGO TO EASTERN MARKETS.  THE COMMISSION DOES NOT
SHOW HOW ANY POSSIBLE DISRUPTION OF RAILROAD RATE STRUCTURE ARISES FROM
GIVING SHIPPERS THE FULL INHERENT ADVANTAGE OF CHEAPER BARGE RATES,
OTHER THAN THAT COMPETING RAILROADS HAVE LOST TRAFFIC TO THE BARGE
LINES.  AS WE HAVE POINTED OUT, CONGRESS KNEW THAT BARGE LINE RATES
WERE CHEAPER THAN RAIL RATES, WANTED THE SHIPPERS TO GET FULL BENEFIT
OF THEM, AND LEFT THE COMMISSION NO POWER TO TAKE THAT BENEFIT AWAY
FROM SHIPPERS BY ADJUSTING RAIL-BARGE TRAFFIC COMPETITION OR RATES. 
BUT WE NOTE INCIDENTALLY THAT THESE RATES HAD BEEN EQUAL PRIOR TO 1939
WITHOUT ANY APPARENT DISRUPTION OF THE TOTAL STRUCTURE.  THE
POSSIBILITY OF SUCH A DISRUPTION DOES NOT REMOTELY JUSTIFY
DISCRIMINATIONS AGAINST BARGE TRAFFIC WHICH ACTUALLY DEPRIVE SHIPPERS
AND THE BARGE COMPANIES OF THE INHERENT ADVANTAGES OF WATER
TRANSPORTATION GUARANTEED TO THEM BY CONGRESS.  SEE UNITED STATES V.
CHICAGO, M. & ST. P.R. CO., 294 U.S. 499, 506-510.  NOR IS THE FACT
THAT BARGE-RAIL RATES, FROM CERTAIN PLACES IN THE WEST THROUGH CHICAGO
TO THE EAST, ARE LESS THAN LOCAL RAIL RATES FROM CHICAGO EAST, AN
ADEQUATE REASON FOR INCREASING THE EAST-OF-CHICAGO PART OF THE THROUGH
BARGE-RAIL RATE.  THE INITIATION OF NEW RATES WITH SUCH A DISPARITY IN
THROUGH RAIL RATES AS COMPARED WITH LOCAL RAIL RATES WOULD, OF COURSE,
BE FORBIDDEN BY SEC. 4 OF THE ACT AS AMENDED IN THE ABSENCE OF
COMMISSION APPROVAL.  FN12  BUT, INSOFAR AS THE INHERENT CHEAPNESS OF
THE BARGE LEG OF THE THROUGH ROUTE PRODUCES A DISPARITY BETWEEN BARGE
RAIL RATES AND LOCAL RAIL RATES, CONGRESS HAS SAID THAT THE ACT MUST BE
SO ADMINISTERED AS TO PRESERVE, NOT ELIMINATE OR REDUCE THE DISPARITY. 

CARRIAGE OF EX-BARGE GRAIN BY EASTERN ROADS MAY CONCEIVABLY ENTAIL
MORE SERVICE AND THEREFORE GREATER COSTS THAN ARE INVOLVED IN CARRYING
EX-RAIL OR EX-LAKE GRAIN.  IF SO, THE EASTERN ROADS MAY, IN CERTAIN
CIRCUMSTANCES, BE JUSTIFIED IN RECEIVING AN EXTRA CHARGE FOR THAT EXTRA
SERVICE WHEREVER IT IS RENDERED.  BUT THE EXTRA SERVICE MUST FIT THE
EXTRA CHARGE AND CANNOT JUSTIFY LUMP SUM RATE INCREASES WHICH CUT INTO
THE INHERENT ADVANTAGES OF CHEAPER BARGE TRANSPORTATION WHICH CONGRESS
INTENDED TO GUARANTEE TO SHIPPERS.  HERE THE COMMISSION FOUND IN BROAD
GENERAL TERMS, WITHOUT LIMITATION TO THE LOCALITIES WHERE BARGE AND
RAIL COMPETE, THAT "ON THE AVERAGE" EX-RAIL GRAIN FROM ALL THE WEST
REQUIRES LESS TERMINAL AND TRANSIT SERVICE EAST OF CHICAGO THAN DOES
GRAIN MOVING BY BARGE FROM THE RELATIVELY FEW BARGE TERMINALS.  FN13
AS TO TERMINAL SERVICE, IT NOTED THAT SOME RAIL GRAIN TRAFFIC GOING
THROUGH CHICAGO WITHOUT STOPPING RECEIVES NO TERMINAL SERVICE AT ALL,
WHEREAS ALL BARGE GRAIN SHIPMENTS MUST BE UNLOADED IN CHICAGO AND
RELOADED ON FREIGHT CARS.  BUT ALL EX-LAKE GRAIN RESHIPPED FROM CHICAGO
AND AN UNSPECIFIED AMOUNT OF EX-RAIL GRAIN STOPPED IN CHICAGO FOR
PROCESSING REQUIRES EXACTLY THE SAME TERMINAL SERVICE AS IS RENDERED
THERE FOR EX-BARGE GRAIN.  FN14  YET THERE IS NO GREATER RATE CHARGED
FOR EX-BARGE AND EX-RAIL GRAIN WHICH RECEIVES THIS SAME TERMINAL
SERVICE.  THE FORMULA USED HERE WHICH LUMPS ALL THROUGH RAIL GRAIN
RATES, IRRESPECTIVE OF THE SERVICES RENDERED, TO GIVE RAIL-CARRIED
GRAIN A PREFERRED RATE OVER BARGE-CARRIED GRAIN, IS INDISTINGUISHABLE
IN CAUSE AND CONSEQUENCE FROM AN ORDER WHICH DIRECTLY RAISES BARGE
RATES TO RELIEVE THE RAILROADS FROM BARGE COMPETITION.  IN ANY EVENT,
THERE HAS BEEN NO SHOWING BY THE COMMISSION AS TO HOW MUCH, IF ANY, OF
THE 3-CENT RESHIPPING RATE INCREASE IS ATTRIBUTABLE TO THE FACT THAT EX
BARGE GRAIN REQUIRES MORE TERMINAL SERVICE ON THE AVERAGE THAN DOES EX
RAIL GRAIN. 

THE COMMISSION ALSO POINTED OUT IN ITS DECISION THAT RAIL RATES FROM
THE WEST TO CHICAGO (WHICH WE MUST ASSUME ON THIS RECORD ARE FAIR AND
REASONABLE FOR THE SERVICES PERFORMED) PERMIT THREE TRANSIT STOPS WEST
OF CHICAGO WITHOUT EXTRA CHARGE.  THUS SOME EX-RAIL GRAIN, UNLIKE EX
BARGE AND EX-LAKE GRAIN, HAS ALREADY BEEN PROCESSED EN ROUTE TO OR IN
CHICAGO BEFORE IT EVER REACHES THE EASTERN LINES, REDUCING THE
LIKELIHOOD THAT IT WILL REQUIRE FURTHER TRANSIT SERVICE ON THE ROUTE
FROM CHICAGO TO THE EAST.  FN15  BUT EX-LAKE GRAIN WHICH ENJOYS THE
PROPORTIONAL RATES WITH THE APPROVAL OF THE COMMISSION APPARENTLY IS
NOT PROCESSED BEFORE ARRIVING AT CHICAGO, OR BEFORE RESHIPMENT ON THE
EASTERN LINES, AND CONSEQUENTLY REQUIRES THE SAME TRANSIT SERVICE ON
THE EASTERN HAUL AS IS REQUIRED BY EX-BARGE GRAIN.  SIMILAR TRANSIT
SERVICE IS REQUIRED FOR THE UNSPECIFIED AMOUNTS OF EX-RAIL GRAIN NOT
PROCESSED EAST OF CHICAGO.  BUT THE COMMISSION MADE NO FINDING THAT THE
EASTERN RESHIPPING RATES PERMIT TRANSIT SERVICE EAST OF CHICAGO WITHOUT
EXTRA CHARGE.  PROBABLY THE REASON THAT IT DID NOT MAKE SUCH A FINDING
IS THAT CARRIERS USUALLY MAKE A SPECIFIC EXTRA CHARGE FOR TRANSIT
SERVICE.  SEE CENTRAL R. CO. OF N.J. V. UNITED STATES, 257 U.S. 247;
ATCHISON, T. & S.F.R. CO. V. UNITED STATES, SUPRA, 777, 780.  AND THE
RECORD HERE SHOWS THAT EASTERN RAILROADS MAKE EXTRA CHARGES FOR TRANSIT
SERVICE RENDERED EX-BARGE GRAIN EAST OF CHICAGO.  THE COMMISSION MAKES
NO SHOWING WHY, IF THE EXISTING RAILROAD CHARGES FOR EACH INDIVIDUAL
TRANSIT OPERATION IS INSUFFICIENT TO COVER THAT OPERATION'S COSTS,
THOSE CHARGES CANNOT BE ADJUSTED ALIKE FOR THE EX-RAIL, EX-LAKE, AND EX
BARGE SHIPMENTS WHICH REQUIRE THIS SERVICE.  IN ANY EVENT, PARTIAL
COMPENSATION OF EASTERN ROADS FOR ADDITIONAL TRANSIT COSTS CANNOT BE
MADE IN A MANNER WHICH SINGLES OUT EX-BARGE GRAIN FOR DISCRIMINATORY
TREATMENT IN VIOLATION OF THE INTERSTATE COMMERCE ACT.  FN16 

TO JUSTIFY INCREASING THE RESHIPPING RATES OF EX-BARGE GRAIN THE
COMMISSION WOULD HAVE TO MAKE FINDINGS SUPPORTED BY EVIDENCE TO SHOW
HOW MUCH GREATER IS THE COST TO THE EASTERN ROADS OF RESHIPPING EX
BARGE GRAIN THAN OF RESHIPPING EX-LAKE OR EX-RAIL GRAIN MOVING FROM THE
SAME LOCALITIES AND REQUIRING THE SAME SERVICE AS DOES THE EX-BARGE
GRAIN.  CF. FLORIDA V. UNITED STATES, 282 U.S. 194, 212; NORTH CAROLINA
V. UNITED STATES, 325 U.S. 507, 520.  THE UNSIFTED AVERAGES PUT FORWARD
BY THE COMMISSION DO NOT MEASURE THE ALLEGEDLY GREATER COSTS NOR INDEED
SHOW THAT THEY EXIST.  AFFIRMED. 

FN1  THE EASTERN POINTS ARE IN NEW YORK AND ADJACENT STATES AND IN
NEW ENGLAND.  IT IS AROUND SHIPMENTS FROM CHICAGO TO THIS TERRITORY
THAT THIS RATE CONTROVERSY CHIEFLY REVOLVES.  THE PROPOSED NEW RATE
INCREASES ALSO RELATED TO GRAIN SHIPMENTS FROM CHICAGO TO THE SO-CALLED
CENTRAL TERRITORY.  THE REASONS SUPPORTING THE CONCLUSION WE REACH
APPLY EQUALLY TO THE CENTRAL TERRITORY INCREASES, AND CONSEQUENTLY WE
NEED NOT TREAT THEM SEPARATELY. 

FN2  SEE 246 I.C.C. 353, 361, 364, 383; 262 I.C.C. 7, 41. 

FN3  THERE WAS BARGE SERVICE FROM THE GRAIN SECTION WEST OF CHICAGO
TO THAT CITY FROM 1886 TO 1907 WHEN IT WAS DISCONTINUED.  SUCH BARGE
SERVICE WAS RESUMED IN 1933.  SEE 262 I.C.C. 7, 20. 

FN4  THE EX-BARGE PROPORTIONALS FIXED BY THE COMMISSION WERE
UNIFORMLY 5.5 CENTS LOWER THAN LOCAL RATES FROM CHICAGO TO THE EAST AND
3 CENTS HIGHER THAN EX-BARGE AND EX-LAKE PROPORTIONALS. 

FN5  APPELLEES ARE (1) A.L. MECHLING, A BARGE WATER CARRIER BETWEEN
CHICAGO AND POINTS IN ILLINOIS, MISSOURI, AND IOWA; (2) INLAND
WATERWAYS CORPORATION WHICH TRANSPORTS GRAIN BY BARGES BETWEEN, AMONG
OTHER POINTS, KANSAS CITY AND CHICAGO; (3) THE SECRETARY OF
AGRICULTURE, WHO IS AUTHORIZED BY STATUTE TO MAKE COMPLAINTS TO THE
INTERSTATE COMMERCE COMMISSION, AND TO SEEK JUDICIAL RELIEF WITH
RESPECT TO RATES AND CHARGES FOR THE TRANSPORTATION OF FARM PRODUCTS. 

FN6  TWO PROCEDURAL POINTS ARE RAISED BY THE COMMISSION WHICH NEED
NOT BE DISCUSSED AT LENGTH.  THE FIRST IS THAT THE DISTRICT COURT'S
PRELIMINARY INJUNCTION WAS TOO BROAD BECAUSE IT ENJOINED THE COMMISSION
FROM PERMITTING THE CONTROVERSIAL RATES TO BECOME EFFECTIVE.  THIS
QUESTION IS NOW MOOT, BUT SEE INLAND STEEL CO. V. UNITED STATES, 306
U.S. 153, 159-160.  THE SECOND PROCEDURAL POINT URGED RELATES TO THE
DISTRICT COURT'S ORDER REQUIRING THE COMMISSION TO SERVE NOTICE OF
APPEAL ON THE UNITED STATES.  WE SEE NO ERROR IN THIS, AND EVEN IF
THERE WERE, IT COULD NOT BE PREJUDICIAL IN CONNECTION WITH THE
COMMISSION'S RIGHTS ON THIS APPEAL.  SINCE THE UNITED STATES WAS
NECESSARILY A PARTY IN THE DISTRICT COURT, 28 U.S. 46, LAMBERT RUN COAL
CO. V. BALTIMORE & O.R. CO., 258 U.S. 377, 382, WE THINK THE DISTRICT
COURT CANNOT BE HELD IN ERROR FOR REQUIRING SERVICE OF THE NOTICE OF
THE COMMISSION'S APPEAL. 

FN7  54 STAT. 898, 937; 49 U.S.C. SEC. 907D.  IN THE ORIGINAL
PROCEEDINGS BEFORE THE COMMISSION, THE LAST EVIDENCE WAS HEARD AND THE
RECORD WAS CLOSED BEFORE THE 1940 TRANSPORTATION ACT BECAME A LAW. 
INTERSTATE COMMERCE COMMISSION V. INLAND WATERWAYS CORP., 319 U.S. 671,
678.  THE PRESENT PROCEEDINGS ARE FULLY GOVERNED BY THE 1940 ACT. 

FN8  ILLUSTRATIVE OF THE ATTITUDE OF CONGRESS IS THIS EXCHANGE
BETWEEN SENATOR LUCAS AND SENATOR WHEELER, CHAIRMAN OF THE INTERSTATE
COMMERCE COMMITTEE: 

"MR. LUCAS....  THE TOWN IN WHICH I LIVE IS A FOCAL POINT FOR THE
TRANSPORTATION OF WHEAT AND CORN DOWN THE ILLINOIS.  THE PRICE OF WHEAT
AND CORN AT THE ELEVATOR THERE IS ALWAYS 2 OR 3 CENTS HIGHER THAN IT IS
AT ELEVATORS SOME 25 OR 30 MILES FARTHER INLAND BECAUSE OF THE
DIFFERENCE BETWEEN THE RATES BY RAIL AND THOSE BY WATER. 

"UNDER THE BILL, AS I UNDERSTAND IT, THE INTERSTATE COMMERCE
COMMISSION WOULD HAVE THE POWER, AND IT WOULD BE ITS DUTY, TO FIX RATES
ON THE ILLINOIS RIVER WITH RESPECT TO THE TRANSPORTATION OF THAT WHEAT
AND CORN.  WOULD IT BE POSSIBLE FOR THE INTERSTATE COMMERCE COMMISSION
TO FIX THE RATE THE SAME AS THE RAILROAD RATE FROM THAT POINT TO ST.
LOUIS? 

"MR. WHEELER.  NOT IF THE COMMISSION DOES ITS DUTY, BECAUSE THE BILL
SPECIFICALLY PROVIDES THAT IT MUST TAKE INTO CONSIDERATION THE INHERENT
ADVANTAGES OF THE WATER CARRIER.  EVERYONE AGREES THAT GOODS CAN BE
SHIPPED MORE CHEAPLY BY WATER THAN BY RAIL."  84 CONG. REC.
5879(1939). 

CHAIRMAN LEA OF THE HOUSE COMMITTEE ON INTERSTATE COMMERCE STATED IN
DEBATE THAT:    "THE BILL VERY PLAINLY, ABOUT AS PLAINLY AS LANGUAGE
CAN BE WRITTEN, PROVIDES FOR THE PROTECTION OF THE INHERENT ADVANTAGES
OF WATER TRANSPORTATION AS CONTRASTED WITH OTHER MEANS OF
TRANSPORTATION.  IN FIXING RATES THE WATER CARRIER IS ASSURED THE
ADVANTAGES OF THE CHEAPER RATE AT WHICH HE CAN TRANSPORT PROPERTY."  84
CONG. REC. 9862(1939). 

SEE ALSO 84 CONG. REC. 5883, 6125-6128, 6131, 6149(1939), AND
CONFERENCE REPORT, 86 CONG. REC. 10172(1940). 

FN9  84 CONG. REC. 5873-5876, 5883, 6131(1939). 

FN10  THE COMMISSION STATED THAT "THE BARGE RATES YIELD FAIR RETURNS
TO THE BARGE CARRIERS, AND, FOR THE PURPOSE OF THIS PROCEEDING, MAY BE
ACCEPTED AS REASONABLE."  262 I.C.C. 7, 19. 

FN11  THE COMMISSION EXPRESSED CONCERN THAT "THE BARGE-RAIL RATES ARE
FAR BELOW THE ALL-RAIL RATES FROM THE SAME AND OTHER ILLINOIS ORIGINS. 
THIS IS AN INEQUITABLE SITUATION GIVING RISE TO REQUESTS FOR REDUCTIONS
IN THE ALL-RAIL RATES FROM THE ILLINOIS AND CENTRAL TERRITORY ORIGINS,
AND IT IS DIFFICULT TO SEE, WITH SUCH EXTREME DISPARITIES, HOW SUCH
REQUESTS COULD PROPERLY BE DENIED....  THERE IS A SUBSTANTIAL
PRODUCTION OF CORN IN CENTRAL TERRITORY.  WHILE THE FARMERS THEREIN DID
NOT APPEAR AT THE HEARING TO SHOW THAT THEY WERE HURT BY THIS
SITUATION, SUCH EVIDENCE WAS ADDUCED BY OTHERS IN THE SAME RELATIVE
POSITION  ...  THIS IS WHAT IS MEANT BY THE STATEMENT ...  THAT THE
PRESENT EX-BARGE PROPORTIONALS FROM CHICAGO JEOPARDIZE THE ALL-RAIL
RATE STRUCTURE."  262 I.C.C. AT 20.  IN UNITED STATES V. CHICAGO, M. &
ST. P.R. CO., 294 U.S. 499, 509, THIS COURT SAID OF AN EARLIER
COMMISSION RATE DECISION MADE ON THE BASIS OF PRESERVING THE OVER-ALL
RATE STRUCTURE FROM DISRUPTION:  "WE ARE WARNED  ...  THAT A CHANGE
ONCE PERMITTED HAS A TENDENCY TO SPREAD.  THE ACCEPTANCE OF THE NEW
SCHEDULE FOR MILWAUKEE WILL LEAD, IT IS SAID, TO REQUESTS FOR
PROPORTIONATE REDUCTIONS BY OTHER LINES IN INDIANA  ...  IN ILLINOIS
AND EVEN IN KENTUCKY, THE OUTCOME BEING CHARACTERIZED IN THE ARGUMENT
OF COUNSEL, THOUGH NOT IN THE REPORT, AS A RATE WAR BETWEEN THE
ROADS....  THE POINT OF THE DECISION IS NOT THAT PRESENT RATES ARE
SOUND, BUT THAT THEY MUST BE MAINTAINED, EVEN IF UNSOUND, FOR FEAR OF A
RATE WAR WHICH MIGHT SPREAD BEYOND CONTROL.  THE DANGER IS ILLUSORY. 
THE WHOLE SITUATION IS SUBJECT TO THE POWER OF THE COMMISSION, WHICH
MAY KEEP THE CHANGES WITHIN BOUNDS." 

FN12  SEE SEC. 6, TRANSPORTATION ACT OF 1940, 54 STAT. 898, 904, 49
U.S.C. SEC. 4. 

FN13  THE COMMISSION STATED THAT "ON THE AVERAGE, AS COMPARED WITH
THE EX-BARGE GRAIN, THE MOVEMENT UNDER THE EX-RAIL PROPORTIONALS  ...
REQUIRES LESS TERMINAL SERVICE AT THE GATEWAY  ... LESS TRANSIT SERVICE
AT INTERMEDIATE POINTS IN OFFICIAL TERRITORY, AND LESS LINE-HAUL
SERVICE TO THE SOUTHERN PORTION."  262 I.C.C. AT 28. 

FN14  THE COMMISSION'S STATEMENT WAS THAT, "LIKE THE LAKE-RAIL
TRAFFIC, THE BARGE-RAIL TRAFFIC REQUIRES TRANSFER OF LADING AND A FULL
ORIGIN TERMINAL SERVICE AT THE INTERCHANGE PORT....  IT NEVER MOVES IN
CONTINUOUS THROUGH TRANSPORTATION."  262 I.C.C. 7, 21. 

A SIMILAR PRECISE STATEMENT DOES NOT APPEAR IN THE COMMISSION'S
DECISION WITH REFERENCE TO TERMINAL SERVICES RENDERED EX-RAIL GRAIN. 
IT ASSUMED THROUGHOUT ITS DISCUSSION, HOWEVER, AS SHOWN BY ITS RELIANCE
ON AVERAGES, THAT A LARGE BUT UNSPECIFIED AMOUNT OF ALL-RAIL GRAIN
SHIPMENTS RECEIVE THE SAME TERMINAL SERVICES AS DOES EX-BARGE GRAIN. 

FN15  THERE IS APPARENTLY NO PROCESSING OF BARGE-CARRIED GRAIN IN
CHICAGO.  THE RAILROADS THERE CHARGE 3.25-4.5 CENTS PER HUNDRED LBS. TO
SWITCH BARGE GRAIN AT CHICAGO FROM RIVERSIDE ELEVATORS TO PROCESSING
PLANTS.  262 I.C.C. 7, 24. 

FN16  IT IS NOTEWORTHY THAT IN ITS PREVIOUS CONSIDERATION OF THESE
SAME EX-BARGE GRAIN RESHIPMENT RATES, THE COMMISSION WAS SATISFIED THAT
"THE PHYSICAL CARRIAGE BEYOND THE RESHIPPING POINT IS SUBSTANTIALLY THE
SAME" IN EX-RAIL, EX-LAKE, AND EX-BARGE SHIPMENTS.  248 I.C.C. 307,
311. 

MR. JUSTICE FRANKFURTER WOULD SUSTAIN THE ORDER OF THE INTERSTATE
COMMERCE COMMISSION, BECAUSE HE DEEMS IT AMPLY SUPPORTED BY ADEQUATE
FINDINGS OF THE COMMISSION DIFFERENTIATING THE AVERAGE CIRCUMSTANCES
AND CONDITIONS SURROUNDING ALL-RAIL AND LAKE-RAIL TRANSPORTATION FROM
THOSE AFFECTING BARGE-RAIL TRANSPORTATION, 262 I.C.C. 27-28, AND THESE
FINDINGS ARE NOT WITHOUT SUPPORT IN EVIDENCE. 

MR. JUSTICE JACKSON, DISSENTING. 

IT APPEARS TO ME THAT THE COURT IN THIS CASE NOT ONLY IGNORES
FINDINGS OF FACT BY THE INTERSTATE COMMERCE COMMISSION CONTRARY TO OUR
OWN OFT-REPEATED PRONOUNCEMENTS ABOUT THE FINALITY OF ADMINISTRATIVE
FINDINGS, BUT IT ALSO LEGISLATES OUT OF THE TRANSPORTATION ACT OF 1940
AT LEAST TWO SPECIFIC PROVISIONS WHICH CONGRESS PUT IN AND DEPARTS FROM
THE POLICY LAID DOWN IN SEC. 1 OF THE ACT.  WHETHER THE CONGRESSIONAL
LAW OR THE COURT'S AMENDMENTS ARE THE BETTER FOR THE COUNTRY IS A
COMPLICATED PROBLEM OF POLICY WHICH, IN MY CONCEPTION OF OUR JUDICIAL
FUNCTION, I AM NOT PRIVILEGED TO DECIDE. 

IN THE TRANSPORTATION ACT OF 1940, 54 STAT. 937, ET SEQ., CONGRESS
AUTHORIZED THE COMMISSION TO ESTABLISH THROUGH RATES BY WATER AND RAIL
CARRIERS.  IT ALSO SAID, "IN THE CASE OF A THROUGH ROUTE, WHERE ONE OF
THE CARRIERS IS A COMMON CARRIER BY WATER, THE COMMISSION SHALL
PRESCRIBE SUCH REASONABLE DIFFERENTIALS AS IT MAY FIND TO BE JUSTIFIED
BETWEEN ALL-RAIL RATES AND THE JOINT RATES IN CONNECTION WITH SUCH
COMMON CARRIER BY WATER."  SEC. 307(D).  THE COURT READS THIS
DISCRETIONARY POWER OUT OF THE STATUTE AND HOLDS THAT THE COMMISSION
MAY NOT ESTABLISH ANY DIFFERENTIAL OTHER THAN THAT CREATED BY THE
CARRIERS THEMSELVES; THAT IS TO SAY, THE ONLY PERMISSIBLE DIFFERENTIAL
IS THE DIFFERENCE BETWEEN BARGE RATES AND RAIL RATES FOR THE WATER LEG
OF THE THROUGH JOURNEY. 

THE STATUTE ALSO SAYS THAT IN THE EXERCISE OF ITS RATE-MAKING POWER
"THE COMMISSION SHALL GIVE DUE CONSIDERATION, AMONG OTHER FACTORS, TO
THE EFFECT OF RATES UPON THE MOVEMENT OF TRAFFIC BY THE CARRIER OR
CARRIERS FOR WHICH THE RATES ARE PRESCRIBED  ..."  SEC.  307(F).  THE
COMMISSION HAS DONE SO AND FINDS THAT A GREATER DIFFERENTIAL THAN THAT
PRESCRIBED WOULD CREATE UNJUST ADVANTAGES AND DIVERSIONS OF TRAFFIC. 
BUT THE COURT IGNORES THE EFFECT OF WHAT IT ORDERS ON EXISTING RATE
STRUCTURES AND ON GRAIN-PRODUCING REGIONS AND SHIPPERS OTHER THAN BARGE
USERS.  IT SIMPLY WRITES IN "SHALL NOT CONSIDER" WHERE CONGRESS SAID
"SHALL CONSIDER." 

BECAUSE THIS DECISION SEEMS TO ME TO DEPRIVE THE COMMISSION OF THESE
DISCRETIONARY POWERS TO ADJUST THROUGH RATES TO GENERAL SHIPPING
CONDITIONS AND RATE STRUCTURES, I DISSENT. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 
..END :



PENFIELD CO. V. S.E.C., 330 U.S. 585 


NO. 453.  ARGUED JANUARY 16, 1947.  - DECIDED MARCH 31, 1947.  - 157
F.2D 65, AFFIRMED. 


IN A CONTEMPT PROCEEDING FOR FAILURE TO COMPLY WITH A COURT ORDER TO
ENFORCE A SUBPOENA DUCES TECUM ISSUED BY THE SECURITIES AND EXCHANGE
COMMISSION IN AID OF AN INVESTIGATION PURSUANT TO SEC. 20(A) OF THE
SECURITIES ACT OF 1933, 48 STAT. 74, A DISTRICT COURT ADJUDGED THE
DEFENDANT GUILTY OF CONTEMPT AND IMPOSED AN UNCONDITIONAL FINE, BUT
REFUSED TO GRANT ANY COERCIVE RELIEF DESIGNED TO FORCE HIM TO PRODUCE
THE SUBPOENAED DOCUMENTS.  HE PAID THE FINE AND TOOK NO APPEAL.  THE
COMMISSION FILED A NOTICE OF APPEAL IN THE DISTRICT COURT AND
SUBSEQUENTLY A STATEMENT OF POINTS CHALLENGING AS ERROR THE COURT'S
ACTION IN IMPOSING THE FINE INSTEAD OF A REMEDIAL PENALTY TO MAKE HIM
PRODUCE THE DOCUMENTS.  THE CIRCUIT COURT OF APPEALS HELD THAT THE
DISTRICT COURT ERRED IN IMPOSING THE FINE AND DIRECTED THAT THE
DEFENDANT BE ORDERED IMPRISONED UNTIL HE PRODUCED THE DOCUMENTS. 
HELD: 

1.  THE APPEAL WAS IN A SUIT OF A CIVIL NATURE AND WAS PROPERLY
TAKEN, UNDER RULE 73(A) OF THE RULES OF CIVIL PROCEDURE, BY FILING A
NOTICE OF APPEAL WITH THE DISTRICT COURT.  PP. 589-591. 

(A)  WHERE A RULE OF CIVIL PROCEDURE CONFLICTS WITH A PRIOR STATUTE,
THE RULE PREVAILS.  P. 589, N. 5. 

(B)  THE APPLICATION OF THE COMMISSION FOR ENFORCEMENT OF ITS
SUBPOENA POSED A PROBLEM IN CIVIL, NOT CRIMINAL, CONTEMPT.  UNITED
STATES V. UNITED MINE WORKERS, 330 U.S. 258.  P. 590. 

(C)  THE ORDER OF DENIAL, BEING FINAL, WAS APPEALABLE, AND THE RIGHT
TO APPEAL WAS NOT DEPENDENT ON AN APPEAL FROM THE IMPOSITION OF THE
FINE.  P. 591. 

2.  THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO GRANT
REMEDIAL RELIEF, AND THE CIRCUIT COURT OF APPEALS DID NOT ERR IN
GRANTING IT.  PP. 591-595. 

3.  THE FACT THAT AN UNCONDITIONAL FINE HAD BEEN IMPOSED AND PAID DID
NOT EXHAUST THE JURISDICTION OF THE DISTRICT COURT OR DEPRIVE THE
CIRCUIT COURT OF APPEALS OF AUTHORITY TO REVERSE THE JUDGMENT WHICH
IMPOSED THE FINE AND SUBSTITUTE A TERM OF IMPRISONMENT CONDITIONED UPON
THE CONTINUANCE OF THE CONTEMPT.  PP. 593-594. 

(A)  ASSUMING ARGUENDO THAT SEC. 268 OF THE JUDICIAL CODE AUTHORIZING
FEDERAL COURTS "TO PUNISH, BY FINE OR IMPRISONMENT, AT THE DISCRETION
OF THE COURT, CONTEMPTS OF THEIR AUTHORITY" GOVERNS CIVIL AS WELL AS
CRIMINAL CONTEMPT PROCEEDINGS, IT IS NO BARRIER TO THE IMPOSITION OF
BOTH A FINE AS A PUNITIVE EXACTION AND IMPRISONMENT AS A COERCIVE
SANCTION.  P. 594. 

(B)  WHEN A COURT IMPOSES A FINE AS A PENALTY, IT IS PUNISHING
YESTERDAY'S CONTEMPTUOUS CONDUCT.  WHEN IT ADDS THE COERCIVE SANCTION
OF IMPRISONMENT, IT IS ANNOUNCING THE CONSEQUENCES OF TOMORROW'S
CONTUMACIOUS CONDUCT.  IN THAT SITUATION, THE TWO OFFENSES ARE NOT THE
SAME.  P. 594. 

4.  NOT HAVING APPEALED FROM THE ADVERSE JUDGMENT IN THE CONTEMPT
PROCEEDINGS IN THE DISTRICT COURT, THE DEFENDANT MAY NOT NOW RAISE
OBJECTIONS GOING TO THE MERITS OF THAT JUDGMENT.  P. 594. 

5.  ASSUMING THAT THE PORTION OF THE ORDER OF THE CIRCUIT COURT OF
APPEALS WHICH SET ASIDE THE UNCONDITIONAL FINE IS HERE FOR REVIEW, THAT
COURT WAS CORRECT IN SETTING ASIDE THE UNCONDITIONAL FINE, SINCE IT WAS
IMPOSED IN A CIVIL CONTEMPT PROCEEDING.  P. 595. 

PENFIELD COMPANY OF CALIFORNIA ET AL. V. SECURITIES & EXCHANGE
COMMISSION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

IN A CONTEMPT PROCEEDING FOR FAILURE TO COMPLY WITH AN ORDER
ENFORCING A SUBPOENA DUCES TECUM ISSUED BY THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, 48 STAT. 74, A DISTRICT
COURT ADJUDGED THE DEFENDANT GUILTY OF CONTEMPT AND IMPOSED AN
UNCONDITIONAL FINE.  ON APPEAL BY THE COMMISSION, THE CIRCUIT COURT OF
APPEALS REVERSED, SET ASIDE THE FINE AND DIRECTED THAT THE DEFENDANT BE
IMPRISONED UNTIL HE PRODUCED THE DOCUMENTS.  157 F.2D 65.  THIS COURT
GRANTED CERTIORARI.  329 U.S. 706.  AFFIRMED, P. 595. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO ITS
AUTHORITY UNDER SEC. 20(A) OF THE SECURITIES ACT OF 1933, 48 STAT. 74,
86, 15 U.S.C. SEC. 77T, ISSUED ORDERS DIRECTING AN INVESTIGATION TO
DETERMINE WHETHER PENFIELD COMPANY HAD VIOLATED THE ACT IN THE SALE OF
STOCK OR OTHER SECURITIES.  IN THE COURSE OF THAT INVESTIGATION IT
DIRECTED A SUBPOENA DUCES TECUM TO YOUNG, AS AN OFFICER OF PENFIELD,
REQUIRING HIM TO PRODUCE CERTAIN BOOKS OF THE CORPORATION COVERING A
FOUR YEAR PERIOD ENDING IN APRIL, 1943.  SEE SEC. 19(B) OF THE ACT. 
UPON YOUNG'S REFUSAL TO APPEAR AND PRODUCE THE BOOKS AND RECORDS, THE
COMMISSION FILED AN APPLICATION WITH THE DISTRICT COURT FOR AN ORDER
ENFORCING THE SUBPOENA.  FN1  AFTER A HEARING, THE COURT ORDERED YOUNG,
AS AN OFFICER OF PENFIELD, TO PRODUCE THEM.  FN2  YOUNG PERSISTED IN
HIS NON-COMPLIANCE.  THE COMMISSION THEN APPLIED TO THE DISTRICT COURT
FOR A RULE TO SHOW CAUSE WHY YOUNG SHOULD NOT BE ADJUDGED IN CONTEMPT -
A PROCEEDING WHICH, AS WE SHALL SEE, WAS ONE FOR CIVIL CONTEMPT.  THE
DISTRICT COURT DELAYED ACTION ON THE MOTION UNTIL AFTER DISPOSITION OF
A CRIMINAL CASE INVOLVING YOUNG, PENFIELD, AND OTHERS.  WHEN THAT CASE
WAS CONCLUDED, THE COURT, AFTER HEARING, ADJUDGED YOUNG TO BE IN
CONTEMPT.  IT REFUSED, HOWEVER, TO GRANT ANY COERCIVE RELIEF DESIGNED
TO FORCE YOUNG TO PRODUCE THE DOCUMENTS BUT INSTEAD IMPOSED ON HIM A
FLAT, UNCONDITIONAL FINE OF $50.00 WHICH HE PAID.  FN3 

THAT WAS ON JULY 2, 1945.  ON SEPTEMBER 24, 1945, THE COMMISSION
FILED A NOTICE OF APPEAL IN THE DISTRICT COURT AND SUBSEQUENTLY A
STATEMENT OF POINTS CHALLENGING AS ERROR THE ACTION OF THE DISTRICT
COURT IN IMPOSING THE $50.00 FINE INSTEAD OF A REMEDIAL PENALTY
CALCULATED TO MAKE YOUNG PRODUCE THE DOCUMENTS.  THE CIRCUIT COURT OF
APPEALS REVERSED, HOLDING THAT THE DISTRICT COURT ERRED IN IMPOSING THE
FINE AND DIRECTING THAT YOUNG BE ORDERED IMPRISONED UNTIL HE PRODUCED
THE DOCUMENTS.  157 F.2D 65.  THE CASE IS HERE ON A PETITION FOR A WRIT
OF CERTIORARI FILED BY PENFIELD CO. AND YOUNG.  NEITHER THE DISTRICT
COURT NOR THE CIRCUIT COURT OF APPEALS RENDERED JUDGMENT AGAINST
PENFIELD.  NOR IS ANY RELIEF SOUGHT BY OR AGAINST IT HERE.  ACCORDINGLY
THE WRIT IS DISMISSED AS TO PENFIELD. 

FIRST.  IT IS ARGUED THAT SINCE NO APPLICATION FOR AN ALLOWANCE OF AN
APPEAL WAS MADE, THE CIRCUIT COURT OF APPEALS HAD NO JURISDICTION TO
ENTERTAIN IT.  FN4  IF THE APPEAL WAS IN A SUIT OF A CIVIL NATURE, THE
FILING OF THE NOTICE OF APPEAL WITH THE DISTRICT COURT WAS ADEQUATE
UNDER THE RULES OF CIVIL PROCEDURE.  FN5 

IT IS THE NATURE OF THE RELIEF ASKED THAT IS DETERMINATIVE OF THE
NATURE OF THE PROCEEDING.  LAMB V. CRAMER, 285 U.S. 217, 220.  THIS WAS
NOT A PROCEEDING IN WHICH THE UNITED STATES WAS A PARTY AND IN WHICH IT
WAS SEEKING TO VINDICATE THE PUBLIC INTEREST.  SEE GOMPERS V. BUCKS
STOVE & RANGE CO., 221 U.S. 418, 445.  THE CONTEMPT PROCEEDINGS WERE
INSTITUTED AS A PART OF THE PROCEEDINGS IN WHICH THE COMMISSION SOUGHT
ENFORCEMENT OF A SUBPOENA.  THE RELIEF WHICH THE COMMISSION SOUGHT WAS
PRODUCTION OF THE DOCUMENTS; AND THE ONLY SANCTION ASKED WAS A PENALTY
DESIGNED TO COMPEL THEIR PRODUCTION.  WHERE A FINE OR IMPRISONMENT
IMPOSED ON THE CONTEMNOR IS "INTENDED TO BE REMEDIAL BY COERCING THE
DEFENDANT TO DO WHAT HE HAD REFUSED TO DO," GOMPERS V. BUCKS STOVE &
RANGE CO., SUPRA, P. 442, THE REMEDY IS ONE FOR CIVIL CONTEMPT.  UNITED
STATES V. UNITED MINE WORKERS, 330 U.S. PP. 258, 303.  THEN "THE
PUNISHMENT IS WHOLLY REMEDIAL, SERVES ONLY THE PURPOSES OF THE
COMPLAINANT, AND IS NOT INTENDED AS A DETERRENT TO OFFENSES AGAINST THE
PUBLIC."  MCCRONE V. UNITED STATES, 307 U.S. 61, 64.  ONE WHO IS FINED,
UNLESS BY A DAY CERTAIN HE PRODUCES THE BOOKS, HAS IT IN HIS POWER TO
AVOID ANY PENALTY.  AND THOSE WHO ARE IMPRISONED UNTIL THEY OBEY THE
ORDER, "CARRY THE KEYS OF THEIR PRISON IN THEIR OWN POCKETS."  IN RE
NEVITT, 117 F. 448, 461.  FINE AND IMPRISONMENT ARE THEN EMPLOYED NOT
TO VINDICATE THE PUBLIC INTEREST BUT AS COERCIVE SANCTIONS TO COMPEL
THE CONTEMNOR TO DO WHAT THE LAW MADE IT HIS DUTY TO DO.  SEE DOYLE V.
LONDON GUARANTEE CO., 204 U.S. 599; ORIEL V. RUSSELL, 278 U.S. 358; FOX
V. CAPITAL CO., 299 U.S. 105; MCCRONE V. UNITED STATES, SUPRA. 

THE ACT GIVES THE COMMISSION AUTHORITY TO REQUIRE THE PRODUCTION OF
BOOKS AND RECORDS IN THE COURSE OF ITS INVESTIGATIONS.  AND IN ABSENCE
OF A BASIS FOR SAYING THAT ITS DEMAND EXCEEDS LAWFUL LIMITS (OKLAHOMA
PRESS PUBLISHING CO. V. WALLING, 327 U.S. 186), IT IS ENTITLED TO THE
AID OF THE COURT IN OBTAINING THEM.  FN6  A REFUSAL OF THE COURT TO
ENFORCE ITS PRIOR ORDER FOR THE PRODUCTION OF THE DOCUMENTS DENIES THE
COMMISSION THAT STATUTORY RELIEF.  THE ISSUE THUS RAISED POSES A
PROBLEM IN CIVIL, NOT CRIMINAL, CONTEMPT.  FN7 

WHERE A JUDGMENT OF CONTEMPT IS EMBODIED IN A SINGLE ORDER WHICH
CONTAINS AN ADMIXTURE OF CRIMINAL AND CIVIL ELEMENTS, THE CRIMINAL
ASPECT OF THE ORDER FIXES ITS CHARACTER FOR PURPOSES OF PROCEDURE ON
REVIEW.  UNION TOOL CO. V. WILSON, 259 U.S. 107.  BUT THERE WAS NO SUCH
ADMIXTURE HERE.  THE DISTRICT COURT REFUSED TO GRANT ANY REMEDIAL
RELIEF TO THE COMMISSION.  THE DENIAL OF THAT RELIEF WAS THE GROUND OF
THE COMMISSION'S APPEAL.  THE ORDER OF DENIAL BEING FINAL, WAS
APPEALABLE, LAMB V. CRAMER, SUPRA, PP. 220-221, AND THE RIGHT TO APPEAL
FROM IT WAS IN NO WAY DEPENDENT ON AN APPEAL FROM THE IMPOSITION OF THE
FINE. 

SECOND.  THE QUESTION ON THE MERITS IS TWO-FOLD:  (1) WHETHER THE
CIRCUIT COURT OF APPEALS ERRED IN GRANTING THE COMMISSION REMEDIAL
RELIEF BY DIRECTING THAT YOUNG BE REQUIRED TO PRODUCE THE DOCUMENTS;
AND (2) WHETHER THAT COURT EXCEEDED ITS AUTHORITY IN REVERSING THE
JUDGMENT WHICH IMPOSED THE FINE AND IN SUBSTITUTING A TERM OF
IMPRISONMENT CONDITIONED ON CONTINUANCE OF THE CONTEMPT. 

AS WE HAVE ALREADY NOTED, THE ACT REQUIRES THE PRODUCTION OF
DOCUMENTS DEMANDED PURSUANT TO LAWFUL ORDERS OF THE COMMISSION AND
LENDS JUDICIAL AID TO OBTAIN THEM.  THERE IS NO BASIS IN THE RECORD
BEFORE US FOR SAYING THAT THE DEMAND OF THE COMMISSION EXCEEDED LAWFUL
LIMITS.  THERE IS, HOWEVER, A SUGGESTION THAT THE DISTRICT COURT WAS
WARRANTED IN DENYING REMEDIAL RELIEF SINCE THE CONTEMPT HEARING CAME
AFTER A CRIMINAL TRIAL OF PETITIONERS IN ANOTHER CASE, DURING THE
COURSE OF WHICH MANY OF PENFIELD'S BOOKS AND RECORDS WERE EXAMINED. 
THE THOUGHT APPARENTLY IS THAT THE COMMISSION HAD PROBED ENOUGH INTO
PENFIELD'S AFFAIRS.  BUT THE DISTRICT COURT DID NOT HOLD THAT THE
COMMISSION'S REQUEST HAD BECOME MOOT, THAT THE DOCUMENTS PRODUCED
SATISFIED ITS LEGITIMATE NEEDS, OR THAT THE ADDITIONAL ONES SOUGHT WERE
IRRELEVANT TO ITS STATUTORY FUNCTIONS.  FN8  WE AGREE WITH THE CIRCUIT
COURT OF APPEALS THAT AT LEAST IN ABSENCE OF SUCH A FINDING, THE
REFUSAL OF THE DISTRICT COURT TO GRANT THE FULL REMEDIAL RELIEF WHICH
THE ACT PLACES BEHIND THE ORDERS OF THE COMMISSION WAS AN ABUSE OF
DISCRETION.  THE RECORDS MIGHT WELL DISCLOSE OTHER OFFENSES AGAINST THE
SECURITIES ACT OF 1933 WHICH THE COMMISSION ADMINISTERS.  THE HISTORY
OF THIS CASE REVEALS A LONG, PERSISTENT EFFORT TO DEFEAT THE
INVESTIGATION.  THE FACT THAT YOUNG PAID THE FINE AND DID NOT APPEAL
INDICATES THAT THE JUDGMENT OF CONTEMPT MAY HAVE BEEN AN EASY VICTORY
FOR HIM.  ON THE OTHER HAND, THE DILATORY TACTICS EMPLOYED SUGGEST THAT
IF JUSTICE WAS TO BE DONE, COERCIVE SANCTIONS WERE NECESSARY. 

WHEN THE CIRCUIT COURT OF APPEALS SUBSTITUTED IMPRISONMENT FOR THE
FINE, IT PUT A CIVIL REMEDY IN THE PLACE OF A CRIMINAL PUNISHMENT.  FOR
THE IMPRISONMENT AUTHORIZED WOULD BE SUFFERED ONLY IF THE DOCUMENTS
WERE NOT PRODUCED OR WOULD CONTINUE ONLY SO LONG AS YOUNG WAS
RECALCITRANT.  ON THE OTHER HAND, THE FINE IMPOSED BY THE DISTRICT
COURT, UNLIKE THAT INVOLVED IN FOX V. CAPITAL CO., SUPRA, PP. 106-107,
WAS UNCONDITIONAL AND NOT RELIEF OF A COERCIVE NATURE SUCH AS THE
COMMISSION SOUGHT.  IT WAS SOLELY AND EXCLUSIVELY PUNITIVE IN
CHARACTER.  CF. NYE V. UNITED STATES, 313 U.S. 33, 42-43. 

AS ALREADY NOTED, YOUNG DID NOT APPEAL FROM THE ORDER HOLDING HIM IN
CONTEMPT AND SUBJECTING HIM TO A FINE.  YOUNG MAINTAINS, HOWEVER, THAT
ONCE THE FINE WAS IMPOSED AND PAID, THE JURISDICTION OF THE COURT WAS
EXHAUSTED; THAT THE CIRCUIT COURT OF APPEALS WAS WITHOUT AUTHORITY TO
SUBSTITUTE ANOTHER PENALTY OR TO ADD TO THE ONE ALREADY IMPOSED AND
SATISFIED.  THAT ARGUMENT RESTS ON THE STATUTE GRANTING FEDERAL COURTS
THE POWER TO PUNISH CONTEMPTS OF THEIR AUTHORITY, JUDICIAL CODE SEC.
268, 28 U.S.C. SEC. 385, AND THE DECISIONS CONSTRUING IT.  THE STATUTE
GIVES THE FEDERAL COURTS POWER "TO PUNISH, BY FINE OR IMPRISONMENT, AT
THE DISCRETION OF THE COURT, CONTEMPTS OF THEIR AUTHORITY," INCLUDING
VIOLATIONS OF THEIR LAWFUL ORDERS.  AT LEAST IN A CRIMINAL CONTEMPT
PROCEEDING BOTH FINE AND IMPRISONMENT MAY NOT BE IMPOSED SINCE THE
STATUTE PROVIDES ALTERNATIVE PENALTIES.  IN RE BRADLEY, 318 U.S. 50. 
HENCE IF A FINE IS IMPOSED ON A CONTEMNOR AND HE PAYS IT, THE SENTENCE
MAY NOT THEREAFTER BE AMENDED SO AS TO PROVIDE FOR IMPRISONMENT.  THE
ARGUMENT HERE IS THAT AFTER A FINE FOR CRIMINAL CONTEMPT IS PAID,
IMPRISONMENT MAY NOT BE ADDED TO, OR SUBSTITUTED FOR THE FINE, AS A
COERCIVE SANCTION IN A CIVIL CONTEMPT PROCEEDING.  IF THAT POSITION IS
SOUND, THEN THE STATUTORY LIMITATION OF "FINE OR IMPRISONMENT" WOULD
PRECLUDE A COURT FROM IMPOSING A FINE AS A PUNITIVE MEASURE AND
IMPRISONMENT AS A REMEDIAL MEASURE, OR VICE VERSA. 

THE DUAL FUNCTION OF CONTEMPT HAS LONG BEEN RECOGNIZED - (1)
VINDICATION OF THE PUBLIC INTEREST BY PUNISHMENT OF CONTEMPTUOUS
CONDUCT; (2) COERCION TO COMPEL THE CONTEMNOR TO DO WHAT THE LAW
REQUIRES OF HIM.  GOMPERS V. BUCKS STOVE & RANGE CO., SUPRA, PP. 441 ET
SEQ. UNITED STATES V. UNITED MINE WORKERS, SUPRA, P. 302.  AS STATED IN
BESSETTE V. W.B. CONKEY CO., 194 U.S. 324, 327, "THE PURPOSE OF
CONTEMPT PROCEEDINGS IS TO UPHOLD THE POWER OF THE COURT AND ALSO TO
SECURE TO SUITORS THEREIN THE RIGHTS BY IT AWARDED." 

WE ASSUME, ARGUENDO, THAT THE STATUTE ALLOWING FINE OR IMPRISONMENT
GOVERNS CIVIL AS WELL AS CRIMINAL CONTEMPT PROCEEDINGS.  IF THE STATUTE
IS SO CONSTRUED, WE FIND IN IT NO BARRIER TO THE IMPOSITION OF BOTH A
FINE AS A PUNITIVE EXACTION AND IMPRISONMENT AS A COERCIVE SANCTION, OR
VICE VERSA.  FN9  THAT PRACTICE HAS BEEN APPROVED.  KREPLIK V. COUCH
PATENTS CO., 190 F. 565, 571.  AND SEE PHILLIPS S. & T.P. CO. V.
AMALGAMATED ASSN., 208 F. 335, 340.  WHEN THE COURT IMPOSES A FINE AS A
PENALTY, IT IS PUNISHING YESTERDAY'S CONTEMPTUOUS CONDUCT.  WHEN IT
ADDS THE COERCIVE SANCTION OF IMPRISONMENT, IT IS ANNOUNCING THE
CONSEQUENCES OF TOMORROW'S CONTUMACIOUS CONDUCT.  AT LEAST IN THAT
SITUATION THE OFFENSES ARE NOT THE SAME.  AND THE MOST THAT THE STATUTE
FORBIDS IS THE IMPOSITION OF BOTH FINE AND IMPRISONMENT FOR THE SAME
OFFENSE. 

YOUNG RAISES OBJECTIONS THAT GO TO THE MERITS OF THE JUDGMENT OF
CONTEMPT.  THESE WERE CONSIDERED AND DETERMINED AGAINST HIM BY THE
DISTRICT COURT.  SINCE HE DID NOT APPEAL FROM THAT ADVERSE JUDGMENT, HE
IS PRECLUDED FROM RENEWING THE OBJECTIONS AT THIS STAGE.  LE TULLE V.
SCOFIELD, 308 U.S. 415, 421-422; HELVERING V. PFEIFFER, 302 U.S. 247,
250-251. 

THERE IS A DIFFERENCE OF VIEW AMONG US WHETHER THE PORTION OF THE
ORDER OF THE CIRCUIT COURT OF APPEALS WHICH SET ASIDE THE UNCONDITIONAL
FINE OF $50 IMPOSED ON YOUNG IS HERE FOR REVIEW.  BUT IF WE ASSUME THAT
IT IS, A MAJORITY OF THE COURT IS OF THE OPINION THAT THE CIRCUIT COURT
OF APPEALS WAS CORRECT IN SETTING IT ASIDE, SINCE THE FINE WAS IMPOSED
IN A CIVIL CONTEMPT PROCEEDING.  SEE GOMPERS V. BUCKS STOVE & RANGE
CO., SUPRA.  AFFIRMED. 

FN1  SEC. 22(B) PROVIDES: 

"IN CASE OF CONTUMACY OR REFUSAL TO OBEY A SUBPENA ISSUED TO ANY
PERSON, ANY OF THE SAID UNITED STATES COURTS, WITHIN THE JURISDICTION
OF WHICH SAID PERSON GUILTY OF CONTUMACY OR REFUSAL TO OBEY IS FOUND OR
RESIDES, UPON APPLICATION BY THE COMMISSION MAY ISSUE TO SUCH PERSON AN
ORDER REQUIRING SUCH PERSON TO APPEAR BEFORE THE COMMISSION, OR ONE OF
ITS EXAMINERS DESIGNATED BY IT, THERE TO PRODUCE DOCUMENTARY EVIDENCE
IF SO ORDERED, OR THERE TO GIVE EVIDENCE TOUCHING THE MATTER IN
QUESTION; AND ANY FAILURE TO OBEY SUCH ORDER OF THE COURT MAY BE
PUNISHED BY SAID COURT AS A CONTEMPT THEREOF." 

FN2  THAT ORDER WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  143
F.2D 746. 

FN3  THE REQUEST OF THE COMMISSION AND THE RULING OF THE COURT ARE
MADE CLEAR BY THE FOLLOWING COLLOQUY:    "MR. CUTHBERTSON:  SO FAR AS
THE PUNISHMENT WHICH THE COURT MIGHT SEE FIT TO IMPOSE, THAT IS UP TO
THE COURT.  WE ARE STILL ANXIOUS TO GET A LOOK AT THESE BOOKS AND
RECORDS, SO I SUGGEST TO THE COURT, IF HE BE SO DISPOSED, WHATEVER
PUNISHMENT THE COURT MIGHT SEE FIT TO IMPOSE WOULD BE IN CONNECTION
WITH OR SO LONG AS HE REFUSED TO PRODUCE HIS BOOKS AND RECORDS FOR OUR
INSPECTION. 

"THE COURT:  I DON'T THINK THAT I AM GOING TO BE DISPOSED TO DO
ANYTHING LIKE THAT.  I SAT HERE FOR SIX WEEKS AND LISTENED TO BOOKS AND
RECORDS.  THE GOVERNMENT PRODUCED PEOPLE FROM ALL OVER THE UNITED
STATES IN CONNECTION WITH THE PENFIELD MATTER.    "MR. CUTHBERTSON:  I
MIGHT SAY, YOUR HONOR, THAT WE HAVE IN MIND THAT THESE BOOKS AND
RECORDS MAY DISCLOSE CERTAIN ACTS OTHER THAN THOSE CHARGED IN THE
INDICTMENT.  WE DON'T PROPOSE TO GO OVER THE SAME MATTER THAT THE COURT
WENT OVER IN CONNECTION WITH THE CRIMINAL CASE. 

"THE COURT:  THE COURT CAN TAKE JUDICIAL NOTICE OF ITS OWN BOOKS AND
RECORDS, AND IN THAT TRIAL THE EVIDENCE WAS CLEAR AND DEFINITE AND
POSITIVE FROM ALL OF THE GOVERNMENT'S WITNESSES, THAT DURING ONE PERIOD
OF TIME THIS DEFENDANT HAD NOTHING WHATSOEVER TO DO WITH THE PENFIELD
COMPANY.  WHETHER THAT PERIOD OF TIME IS COVERED BY WHAT THE SECURITIES
AND EXCHANGE COMMISSION SEEKS OR NOT, I DON'T KNOW. 

"THE JUDGMENT AND SENTENCE OF THE COURT IS THAT THE DEFENDANT PAY A
FINE OF $50, AND STAND COMMITTED UNTIL PAID." 

FN4  SECTION 8(C) OF THE ACT OF FEBRUARY 13, 1925, 43 STAT. 936, 940,
AS AMENDED, 28 U.S.C. SEC. 230, PROVIDES:  "NO APPEAL INTENDED TO BRING
ANY JUDGMENT OR DECREE BEFORE A CIRCUIT COURT OF APPEALS FOR REVIEW
SHALL BE ALLOWED UNLESS APPLICATION THEREFOR BE DULY MADE WITHIN THREE
MONTHS AFTER THE ENTRY OF SUCH JUDGMENT OR DECREE."  SEE ALASKA PACKERS
ASSN. V. PILLSBURY, 301 U.S. 174; GEORGIA LUMBER CO. V. COMPANIA, 323
U.S. 334. 

FN5  RULE 73(A) PROVIDES IN PART:  "WHEN AN APPEAL IS PERMITTED BY
LAW FROM A DISTRICT COURT TO A CIRCUIT COURT OF APPEALS AND WITHIN THE
TIME PRESCRIBED, A PARTY MAY APPEAL FROM A JUDGMENT BY FILING WITH THE
DISTRICT COURT A NOTICE OF APPEAL."  WHERE A RULE OF CIVIL PROCEDURE
CONFLICTS WITH A PRIOR STATUTE, THE RULE PREVAILS.  48 STAT. 1064, 28
U.S.C. SEC. 723B. 

FN6  SEE SEC. 22(B), SUPRA, NOTE 1. 

FN7  THIS THUS DISPOSES OF THE FURTHER CONTENTION THAT THE APPEAL WAS
NOT TIMELY UNDER THE CRIMINAL APPEALS ACT, 18 U.S.C. SUPP. II SEC.
682.  UNITED STATES V. HARK, 320 U.S. 531. 

FN8  AS WILL BE SEEN FROM NOTE 3, SUPRA, THE COURT, IMMEDIATELY PRIOR
TO RENDERING ITS SENTENCE, NOTED THAT THERE WAS ONE PERIOD DURING WHICH
YOUNG WAS NOT CONNECTED WITH PENFIELD CO. BUT THE COURT ADDED:
"WHETHER THAT PERIOD OF TIME IS COVERED BY WHAT THE SECURITIES AND
EXCHANGE COMMISSION SEEKS OR NOT, I DON'T KNOW." 

FN9  SOME RULES GOVERNING CRIMINAL CONTEMPTS ARE, OF COURSE,
DIFFERENT FROM THOSE GOVERNING CIVIL CONTEMPTS.  GOMPERS V. BUCKS STOVE
& RANGE CO., SUPRA, PP. 444, 446-449.  IF THOSE DIFFERENCES ARE
SATISFIED AND IF, AS IN IN RE SWAN, 150 U.S. 637; MATTER OF CHRISTENSEN
ENGINEERING CO., 194 U.S. 458; IN RE MERCHANTS' STOCK CO., 223 U.S.
639; FARMERS NAT'L BK. V. WILKINSON, 266 U.S. 503, THE CRIMINAL PENALTY
AND THE REMEDIAL RELIEF ARE SEGREGATED, NO PROBLEM OF THE ADEQUACY OF
THE ORDER FOR PURPOSES OF APPELLATE REVIEW IS PRESENTED.  NO QUESTION
IS RAISED HERE AS TO THE PROPRIETY OF COMBINING CIVIL AND CRIMINAL
CONTEMPT IN THE SAME PROCEEDING. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

BUT FOR THE DECISION IN UNITED STATES V. UNITED MINE WORKERS, 330
U.S. 258, I SHOULD HAVE NO DIFFICULTY IN CONCLUDING WITH THE COURT THAT
THIS CONTEMPT PROCEEDING WAS EXCLUSIVELY CIVIL IN CHARACTER AND THAT,
CONSEQUENTLY, NO CRIMINAL PENALTY COULD BE IMPOSED, COERCIVE RELIEF
ALONE BEING ALLOWABLE IN SUCH A CASE.  GOMPERS V. BUCKS STOVE & RANGE
CO., 221 U.S. 418.  FN1  THAT DECISION HELD THAT THE IMPOSITION OF
CRIMINAL PUNISHMENT IN A CIVIL CONTEMPT PROCEEDING "WAS AS
FUNDAMENTALLY ERRONEOUS AS IF IN AN ACTION OF 'A. VS. B. FOR ASSAULT
AND BATTERY,' THE JUDGMENT ENTERED HAD BEEN THAT THE DEFENDANT BE
CONFINED IN PRISON FOR TWELVE MONTHS."  221 U.S. AT 449. 

BY EVERY TEST APPLIED IN THE GOMPERS CASE THIS PROCEEDING WAS CIVIL,
NOT CRIMINAL IN CHARACTER.  HERE AS THERE THE PROCEEDING WAS ENTITLED,
INSTITUTED AND CONDUCTED AS COLLATERAL TO CIVIL LITIGATION.  IT SOUGHT
ONLY REMEDIAL RELIEF, NAMELY, THE PRODUCTION OF SPECIFIED BOOKS AND
RECORDS.  FN2  AND ISSUANCE OF THE CITATION WAS GROUNDED UPON
DISOBEDIENCE OF THE COURT'S LAWFUL ORDER FOR THEIR PRODUCTION.  FN3 

THIS ACT, LIKE THE ACT OF DISOBEDIENCE IN THE GOMPERS CASE,
CONSTITUTED CONDUCT WHICH WOULD HAVE SUSTAINED EITHER CIVIL OR CRIMINAL
PENALTY IN APPROPRIATE PROCEEDINGS.  BUT THE UNEQUIVOCAL RULING OF THAT
CASE WAS THAT CRIMINAL PENALTIES CANNOT BE APPLIED IN CIVIL CONTEMPT
PROCEEDINGS.  221 U.S. AT 444, 449, 451-452.  NOT ONLY THE RESULT, BUT
THE WHOLE TENOR OF THE OPINION WAS TO THE EFFECT THAT THE CHARACTER OF
THE PROCEEDING AS A WHOLE, WHETHER AS CIVIL OR CRIMINAL, MUST BE
CORRELATED WITH THE CHARACTER OF THE PENALTY IMPOSED, AND THAT THE TWO
CANNOT BE SCRAMBLED, REGARDLESS OF THE FACT THAT THE CONDUCT
CONSTITUTING THE CONTEMPT WOULD SUPPORT THE IMPOSITION OF EITHER TYPE
OF RELIEF IN A PROCEEDING APPROPRIATE TO THE KIND OF RELIEF GIVEN.  FN4
NOT SIMPLY THE REMEDY SOUGHT BUT THE CHARACTER OF THE PROCEEDING IN
WHICH IT IS PURSUED, IT WAS HELD, DETERMINES THE VALIDITY OF THE RELIEF
AFFORDED.  FN5 

THIS RULING, AS I HAVE PREVIOUSLY MAINTAINED, WAS ONE NOT ONLY OF
HISTORICAL GROUNDING BUT OF CONSTITUTIONAL COMPULSION.  FN6  MOREOVER,
IT RECENTLY HAS BEEN REINFORCED BY RULE 42(B) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE, REQUIRING THAT THE NOTICE PRESCRIBED FOR
INSTITUTING THE PROCEEDING "SHALL STATE THE ESSENTIAL FACTS
CONSTITUTING THE CRIMINAL CONTEMPT CHARGED AND DESCRIBE IT AS SUCH." 
FN7 

HENCE, UNDER THE RULE OF THE GOMPERS CASE AND OTHERS FOLLOWING IT, IT
IS CLEAR THAT THE DISTRICT JUDGE HAD NO POWER IN THIS CASE TO IMPOSE
THE CRIMINAL PENALTY OF A FLAT $50 FINE AND IT IS EQUALLY CLEAR, ON THE
RECORD,  FN8  THAT HE EXCEEDED HIS POWER IN DENYING THE COMMISSION
CIVIL COERCIVE RELIEF ALTOGETHER.  FN9 

MOREOVER, I THINK IT IS CLEAR THAT BOTH OF THESE PROBLEMS ARE
PRESENTED FOR OUR DETERMINATION ON THE STATE OF THE RECORD HERE.  IT IS
TRUE THAT YOUNG DID NOT APPEAL FROM THE DISTRICT COURT'S JUDGMENT TO
THE CIRCUIT COURT OF APPEALS, AND THAT HE PAID THE FINE.  BUT THE
COMMISSION APPEALED FROM THAT JUDGMENT IN ITS ENTIRETY, AS IT HAD A
RIGHT TO DO,  FN10  UNLESS THE PAYMENT OF THE FINE EXHAUSTED ALL
JUDICIAL POWER TO DEAL FURTHER WITH THE PROCEEDING.  THIS INDEED IS A
BASIS UPON WHICH YOUNG MAINTAINS THAT THE CIRCUIT COURT OF APPEALS HAD
NO POWER TO REVERSE THE DISTRICT COURT'S JUDGMENT.  FN11 

BUT CLEARLY, AS THE COURT HOLDS, SUCH POWER COULD NOT BE WANTING, IF
THE LITIGATION WAS EXCLUSIVELY CIVIL IN CHARACTER.  ON THE CONTRARY THE
ACTION OF THE CIRCUIT COURT OF APPEALS WAS EXACTLY IN ACCORDANCE WITH
THE RULING IN THE GOMPERS CASE AND WAS REQUIRED BY IT.  IN BOTH CASES
THE PROCEEDINGS WERE WHOLLY CIVIL IN CHARACTER.  IN BOTH A CRIMINAL
PENALTY WAS IMPOSED.  AND IN BOTH THE JUDGMENT LAYING IT WAS REVERSED
AND THE CAUSE WAS REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS
LOOKING ONLY TO THE GIVING OF CIVIL RELIEF. 

THE ONLY DIFFERENCE IS THAT IN THE GOMPERS CASE THE CONTEMNORS HAD
NOT ENTERED UPON THE SERVICE OF THE VOID CRIMINAL SENTENCE OF
IMPRISONMENT BUT APPEALED FROM IT, WHILE HERE YOUNG PAID THE FINE AND
DID NOT APPEAL.  THAT ACTION ON HIS PART, HOWEVER, CANNOT OUST THE
COMMISSION OF ITS STATUTORY RIGHT OF APPEAL AND REVIEW OR OF ITS RIGHT
TO CIVIL RELIEF.  FN12  IF THE CONTEMPT PROCEEDING WERE CRIMINAL IN
CHARACTER, A DIFFERENT QUESTION MIGHT BE PRESENTED.  FN13  BUT
COMPLIANCE WITH A VOID CRIMINAL PENALTY, VOID BECAUSE IMPOSED IN A
WHOLLY CIVIL PROCEEDING, CANNOT MAKE IT VALID OR OUST EITHER THE COURTS
OF THEIR CIVIL JURISDICTION IN MATTERS OF RELIEF OR OPPOSING PARTIES OF
THEIR RIGHTS IN THAT RESPECT. 

IN SHORT, THE COMMISSION WAS FORCED TO APPEAL FROM THE JUDGMENT
RENDERED, IF IT WAS NOT TO ACQUIESCE IN WHAT THE COURT HAD DONE AND
THEREBY SUFFER UNAUTHORIZED THWARTING OF ITS STATUTORY INVESTIGATING
POWER.  THAT JUDGMENT WAS RIGHTFULLY TAKEN IN ITS ENTIRETY TO THE
CIRCUIT COURT OF APPEALS, WAS REVIEWED BY THAT COURT, AND WAS REVERSED
NOT PARTIALLY BUT COMPLETELY.  FN14  OUR ACTION IN GRANTING CERTIORARI
BROUGHT HERE FOR REVIEW THE ENTIRE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS, INCLUDING ITS REVERSAL OF THE CRIMINAL JUDGMENT RENDERED BY
THE DISTRICT COURT AS WELL AS ITS MANDATE FOR CIVIL RELIEF.  FN15
HENCE IN MY OPINION WE ARE FORCED TO TAKE ACTION UPON THE JUDGMENT AS A
WHOLE, IN BOTH CIVIL AND CRIMINAL PHASES. 

SINCE I AM IN AGREEMENT WITH THE COURT'S VIEW THAT THE GOMPERS RULING
AND OTHERS IN ACCORD WITH IT ARE CONTROLLING IN THIS CASE, I THINK THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD BE AFFIRMED, THOUGH
WITH MODIFICATION IN ONE RESPECT.  FN16  I FIND IT DIFFICULT, HOWEVER,
TO RECONCILE THE ACTION TAKEN HERE WITH WHAT WAS DONE IN THE MINE
WORKERS DECISION.  A MAJORITY THERE HELD, AS I THOUGHT CONTRARY TO THE
GOMPERS RULING, THAT CIVIL AND CRIMINAL CONTEMPT COULD BE PROSECUTED IN
A SINGLE CONTEMPT PROCEEDING CONDUCTED ACCORDING TO THE RULES OF
PROCEDURE APPLICABLE IN EQUITY CAUSES,  FN17  AND THAT BOTH TYPES OF
RELIEF, CIVIL AND CRIMINAL, COULD BE IMPOSED IN SUCH A MIXED
PROCEEDING.  IT WAS ALSO HELD THAT ON REVIEW THE APPELLATE COURT IS
FREE TO SUBSTITUTE ITS OWN JUDGMENT CONCERNING THE NATURE AND EXTENT OF
BOTH TYPES OF RELIEF FOR THAT OF THE TRIAL COURT, AND THEREFORE THAT IN
REMANDING THE CAUSE FOR FURTHER PROCEEDINGS THERE WAS NO NECESSITY TO
LEAVE ROOM FOR THE FURTHER EXERCISE OF THE TRIAL COURT'S DISCRETION IN
RELATION TO EITHER TYPE OF RELIEF. 

IF IN THAT CASE A SINGLE MIXED PROCEEDING COULD SUFFICE WITHOUT
REGARD TO THE REQUIREMENTS OF RULE 42(B) AND THE GOMPERS LINE OF
DECISIONS CONCERNING PROCEDURES TO BE FOLLOWED IN INSTITUTING AND
CONDUCTING CONTEMPT PROCEEDINGS, FOR THE IMPOSITION OF BOTH CIVIL AND
CRIMINAL PENALTIES, I SEE NO VALID REASON WHY THE SAME THING COULD NOT
BE DONE IN THIS CAUSE OR WHY BOTH THE CRIMINAL FINE IMPOSED BY THE
DISTRICT COURT AND THE CIVIL RELIEF GIVEN BY THE CIRCUIT COURT OF
APPEALS SHOULD NOT BE ALLOWED TO STAND. 

IT IS TRUE THAT IF THE PROCEEDING IS TO BE TAKEN AS HAVING BEEN BOTH
CIVIL AND CRIMINAL A SERIOUS QUESTION WOULD BE PRESENTED ON THE TERMS
OF SEC. 268 OF THE JUDICIAL CODE WHETHER IMPOSITION AND PAYMENT OF THE
FINE HERE DID NOT EXHAUST JUDICIAL POWER TO DEAL FURTHER WITH THE
PROCEEDING, MORE ESPECIALLY IN ITS CRIMINAL PHASE.  FN18  BUT THAT
QUESTION TOO, I TAKE IT, NECESSARILY WOULD BE SETTLED IF THE MINE
WORKERS RULING WERE TO GOVERN HERE. 

IT IS ALSO TRUE THAT IN THIS CASE THE UNITED STATES WAS NOT A PARTY
BY THAT NAME, AS IT WAS IN THE MINE WORKERS CASE, TO THE CIVIL
LITIGATION IN WHICH THE CONTEMPT PROCEEDING AROSE OR TO THE CONTEMPT
PROCEEDING ITSELF.  BUT THE COMMISSION WAS THE MOVING PARTY IN BOTH,
REPRESENTATIVE AS SUCH OF THE PUBLIC INTEREST AS THE TRIAL COURT
POINTED OUT.  FN19  AND, IN VIEW OF THE VAST LIBERALITY ALLOWED BY THE
MINE WORKERS DECISION CONCERNING MATTERS OF PROCEDURE AND RELIEF IN
CONTEMPT PROCEEDINGS, IT HARDLY CAN BE A SOLID GROUND FOR
DISTINGUISHING THE CASES THAT IN ONE THE PUBLIC INTEREST WAS
REPRESENTED, AS TO THE CRIMINAL PHASE, EO NOMINE UNITED STATES, IN THE
OTHER UNDER THE NAME OF THE SECURITIES AND EXCHANGE COMMISSION.  CF. IN
RE BRADLEY, 318 U.S. 50.  INDEED THE RECORD SHOWS THAT IN THE PRESENT
CASE THE UNITED STATES ATTORNEY AND THE ASSISTANT UNITED STATES
ATTORNEY PARTICIPATED IN THE CONTEMPT PROCEEDING IN THE DISTRICT
COURT. 

NOTWITHSTANDING THESE DIFFICULTIES, SINCE THE COURT RESTS THE
DECISION IN THIS CAUSE UPON THE GOMPERS RULE, WHICH IN MY OPINION
REPRESENTS THE SETTLED LAW, I JOIN IN THE AFFIRMANCE OF THE JUDGMENT OF
THE CIRCUIT COURT OF APPEALS, BOTH INSOFAR AS IT REVERSED THE DISTRICT
COURT'S JUDGMENT BECAUSE OF THE DENIAL OF COERCIVE RELIEF AND IN
RELATION TO ITS REVERSAL OF THE CRIMINAL PENALTY IMPOSED BY THE
DISTRICT COURT. 

BUT, WHILE THERE CAN BE NO QUESTION OF THE COURT OF APPEALS' POWER IN
PROPER CASES TO REVIEW AND REVISE CIVIL RELIEF GIVEN IN THE DISTRICT
COURT, IN THIS CASE NO SUCH RELIEF HAD BEEN AWARDED.  IN MY OPINION THE
QUESTION OF THE CHARACTER AND SCOPE OF THAT RELIEF WAS A MATTER, IN THE
FIRST INSTANCE, FOR THE DISTRICT COURT'S JUDGMENT RATHER THAN FOR THE
COURT OF APPEALS.  ACCORDINGLY, I WOULD MODIFY THE JUDGMENT OF REVERSAL
IN THE CIVIL PHASE SO THAT THE CAUSE WOULD BE REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS TO EXERCISE ITS DISCRETION IN FRAMING THE RELIEF
ADEQUATE AND APPROPRIATE TO MAKE EFFECTIVE THE COMMISSION'S RIGHT TO
DISCLOSURE.  FN20 

FN1  SEE IN RE FOX, 96 F.2D 23; NORSTROM V. WAHL, 41 F.2D 910. 

FN2  THE APPLICATION IN CONTEMPT WAS MADE BY AFFIDAVIT SETTING FORTH
THE FACTS ALLEGED TO CONSTITUTE THE VIOLATION.  THE CONTEMPT PROCEEDING
WAS ENTERED UPON THE CIVIL DOCKET, BEING CAUSE "NO. 2863, CIVIL,
SECURITIES AND EXCHANGE COMMISSION V. PENFIELD COMPANY OF CALIFORNIA." 
YOUNG WAS FIRST COMMANDED TO APPEAR AND SHOW CAUSE WHY A FURTHER ORDER
SHOULD NOT BE MADE DIRECTING HIM "TO SHOW CAUSE WHY AN ORDER SHOULD NOT
BE MADE HOLDING SAID A.W. YOUNG IN CONTEMPT OF THIS COURT AND TO BE
DEALT WITH ACCORDINGLY."  THE ORDER OF CITATION FOLLOWED IN THE SAME
TERMS.  AT THE HEARING COUNSEL FOR THE COMMISSION MAINTAINED
CONSISTENTLY AND URGENTLY THAT THE PROCEEDING WAS EXCLUSIVELY CIVIL,
NOT CRIMINAL IN CHARACTER.  NOT UNTIL PRONOUNCEMENT OF JUDGMENT WAS ANY
STEP TAKEN INDICATING THE PROCEEDING TO BE CRIMINAL IN NATURE.    FN3
THE VALIDITY OF THE ORDER FOR PRODUCTION WAS SUSTAINED ON APPEAL.  143
F.2D 746. 

FN4  SEE THE COURT'S DISCUSSION IN GOMPERS V. BUCKS STOVE & RANGE
CO., 221 U.S. 418, PARTICULARLY AT PP. 444-449, 451 FF.; SEE ALSO
DISCUSSION IN UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258,
DISSENTING OPINION, P. 363, PART III. 

FN5  THE GOMPERS OPINION, AS I UNDERSTAND IT, DOES NOT HOLD THAT THE
CHARACTER OF THE RELIEF SOUGHT IS EXCLUSIVELY THE CRITERION OF THE
CHARACTER OF THE PROCEEDING.  IT WAS SAID TO BE A FACTOR TO BE TAKEN
INTO ACCOUNT.  BUT, IN VIEW OF THE COURT'S STRESS UPON OTHER FACTORS,
INCLUDING THE PRIVATE OR PUBLIC CHARACTER OF THE COMPLAINANT, WHETHER
OR NOT THE CONTEMPT PROCEEDING ARISES IN AND AS COROLLARY TO CIVIL
LITIGATION, AND THE NECESSITY FOR OBSERVING DISTINCT PROCEDURAL
REQUIREMENTS IN THE COURSE OF TRIAL, THE CASE SEEMS CLEARLY TO RULE
THAT THE CHARACTER OF THE PROCEEDING DETERMINES THE NATURE OF THE
RELIEF WHICH CAN BE GIVEN RATHER THAN THE REVERSE. 

FN6  SEE THE REFERENCES CITED IN NOTE 4 SUPRA; AND SEE NOTE 5. 

FN7  "A CRIMINAL CONTEMPT EXCEPT AS PROVIDED IN SUBDIVISION (A) OF
THIS RULE SHALL BE PROSECUTED ON NOTICE.  THE NOTICE SHALL STATE THE
TIME AND PLACE OF HEARING, ALLOWING A REASONABLE TIME FOR THE
PREPARATION OF THE DEFENSE, AND SHALL STATE THE ESSENTIAL FACTS
CONSTITUTING THE CRIMINAL CONTEMPT CHARGED AND DESCRIBE IT AS SUCH. 
THE NOTICE SHALL BE GIVEN ORALLY BY THE JUDGE IN OPEN COURT IN THE
PRESENCE OF THE DEFENDANT OR, ON APPLICATION OF THE UNITED STATES
ATTORNEY OR OF AN ATTORNEY APPOINTED BY THE COURT FOR THAT PURPOSE, BY
AN ORDER TO SHOW CAUSE OR AN ORDER OF ARREST...."  RULE 42(B), FEDERAL
RULES OF CRIMINAL PROCEDURE.  SEE UNITED STATES V. UNITED MINE WORKERS,
330 U.S. 258, DISSENTING OPINION, P. 372, AND NOTE 45. 

THE RULE DID NOT BECOME EFFECTIVE UNTIL MARCH 21, 1946, HENCE WAS NOT
APPLICABLE TO THE PRESENT PROCEEDING WHICH WAS INSTITUTED AND CONCLUDED
IN THE TRIAL COURT PRIOR TO THAT DATE. 

FN8  SEE TEXT INFRA.  THE RECORD DOES NOT SHOW THAT THE FUNCTION OF
THE SUBPOENA HAD BEEN EXHAUSTED AT THE TIME OF THE JUDGMENT IN
CONTEMPT, ALTHOUGH THIS WAS YOUNG'S CONTENTION ACCEPTED, APPARENTLY, BY
THE DISTRICT COURT.  THE CONTRARY, IN FACT, AFFIRMATIVELY APPEARS.  THE
SUBPOENA DID NOT PURPORT TO BE ISSUED EXCLUSIVELY IN CONNECTION WITH
AND FOR THE PURPOSES OF THE CRIMINAL TRIAL WHICH TRANSPIRED IN THE
DISTRICT COURT BETWEEN ITS ISSUANCE AND THE TIME OF THE JUDGMENT IN
CONTEMPT.  COUNSEL FOR THE COMMISSION EXPRESSLY STATED THAT THE
SUBPOENA WAS NOT LIMITED TO THAT MATTER AND THE COURT SAID, AFTER
REFERRING TO THE PERIOD OF THE CRIMINAL SUIT:  "WHETHER THAT PERIOD OF
TIME IS COVERED BY WHAT THE SECURITIES AND EXCHANGE COMMISSION SEEKS OR
NOT, I DON'T KNOW." 

THE COURT MADE NO FINDING THAT THE SUBPOENA'S FUNCTION HAD BEEN
EXHAUSTED.  THE ONLY REASON ASSIGNED FOR REFUSING CIVIL RELIEF WAS THAT
THE COURT HAD SAT IN THE CRIMINAL TRIAL FOR SIX WEEKS DURING WHICH IT
HAD "LISTENED TO BOOKS AND RECORDS," AS WELL AS WITNESSES PRODUCED
"FROM ALL OVER THE UNITED STATES IN CONNECTION WITH THE PENFIELD
MATTER."  TAKING JUDICIAL NOTICE OF ITS OWN PROCEEDINGS, THE COURT
SAID:  "...  IN THAT TRIAL THE EVIDENCE WAS CLEAR AND DEFINITE  ...
THAT DURING ONE PERIOD OF TIME THIS DEFENDANT (YOUNG) HAD NOTHING
WHATSOEVER TO DO WITH THE PENFIELD COMPANY."  THESE GROUNDS, OF COURSE,
WERE NOT THE EQUIVALENT OF FINDING THAT THE RECORDS COVERED BY THE
SUBPOENA HAD BEEN PRODUCED OR THAT THE COMMISSION HAD NO POWER OR VALID
REASON FOR PURSUING ITS STATUTORY INVESTIGATION THROUGH THE SUBPOENA
BEYOND THE CONFINES OF THE CLOSED CRIMINAL TRIAL. 

FN9  SEE NOTE 8.  AND SEE TEXT INFRA PRECEDING NOTE 20. 

FN10  28 U.S.C. SEC. 225; SEE CLARKE V. FEDERAL TRADE COMMISSION, 128
F.2D 542; LAMB V. CRAMER, 285 U.S. 217, 220. 

FN11  THE PRINCIPAL CONTENTION IN THIS RESPECT IS BASED ON SEC. 268
OF THE JUDICIAL CODE, 28 U.S.C. SEC. 385, AND THE DECISION IN IN RE
BRADLEY, 318 U.S. 50.  THE BRADLEY CASE, HOWEVER, WAS ONE IN CRIMINAL
CONTEMPT AND THE DECISION WAS THAT IN SUCH A CASE SEC. 268 FORBIDS
IMPOSITION AS PENALTY OF BOTH FINE AND IMPRISONMENT.  THE PENALTIES
BEING ALTERNATIVE BY THE SECTION'S TERMS, IT WAS HELD THAT PAYMENT OF
THE FINE EXHAUSTED THE COURT'S POWER. 

THE BRADLEY CASE THEREFORE PRESENTED NO QUESTION OF THE APPLICABILITY
OF SEC. 268 IN CIVIL CONTEMPT PROCEEDINGS OR OF ITS EFFECT IF
APPLICABLE.  COMPARE THE MAJORITY AND CONCURRING OPINIONS IN IN RE
SIXTH & WISCONSIN TOWER, INC., 108 F.2D 538.  IT CANNOT BE TAKEN AS
HAVING RULED THAT THE COURT'S INVALID IMPOSITION OF CRIMINAL PUNISHMENT
IN CIVIL CONTEMPT PROCEEDINGS OR SATISFACTION OF SUCH A VOID SENTENCE
EXHAUSTS EITHER THE TRIAL COURT'S POWER OR THAT OF AN APPELLATE COURT
ON REVIEW TO DEAL WITH THE CIVIL CONTEMPT BY AFFORDING CIVIL RELIEF OR
TO AVOID THE INVALID CRIMINAL JUDGMENT. 

WHETHER OR NOT SEC. 268, IF APPLICABLE TO A SO-CALLED MIXED CIVIL
CRIMINAL CONTEMPT PROCEEDING, WOULD FORBID THE IMPOSITION OF RELIEF
BOTH BY WAY OF FINE AND IMPRISONMENT, ONE PUNITIVE, THE OTHER COERCIVE
AND REMEDIAL, NEED NOT BE CONSIDERED IN VIEW OF THE HOLDING THAT THIS
PROCEEDING WAS EXCLUSIVELY CIVIL IN CHARACTER. 

FN12  SEE NOTES 10, 14. 

FN13  SEE NOTE 11 SUPRA. 

FN14  THE OPINION OF THE CIRCUIT COURT OF APPEALS STATES:  "YOUNG DID
NOT APPEAL FROM THE ORDER HOLDING HIM IN CONTEMPT.  THAT DECISION IS
FINAL AND THE ONLY QUESTION BEFORE US IS THE EXTENT OF THE REMEDY TO
WHICH THE COMMISSION IS ENTITLED."  157 F.2D 65, 66.  RULING THAT THE
CAUSE DID NOT BECOME MOOT BY REASON OF YOUNG'S PAYMENT OF THE FINE, THE
COURT FURTHER HELD THE DISTRICT COURT HAD ABUSED ITS "DISCRETION" IN
NOT GRANTING THE FULL RELIEF SOUGHT BY THE COMMISSION.  THE CONCLUDING
PARAGRAPH OF THE OPINION STATED:  "THE ORDER IMPOSING THE FINE IS
REVERSED AND THE CASE REMANDED TO THE DISTRICT COURT FOR AN ORDER
REQUIRING YOUNG'S IMPRISONMENT TO COMPEL HIS OBEDIENCE TO THE ORDER TO
PRODUCE THE DOCUMENTS IN QUESTION."  THE OPINION CONCLUDED:  "THE ORDER
OF THE DISTRICT COURT IS REVERSED," 157 F.2D AT 67, AND THE FORMAL
ORDER FOR JUDGMENT ENTITLED "DECREE" DIRECTED "THAT THE ORDER OF THE
SAID DISTRICT COURT IN THIS CAUSE BE, AND HEREBY IS, REVERSED, AND THAT
THIS CAUSE BE, AND HEREBY IS REMANDED TO THE SAID DISTRICT COURT FOR
FURTHER PROCEEDINGS IN ACCORDANCE WITH THE OPINION OF THIS COURT." 

THE NOTICE OF APPEAL FILED IN THE DISTRICT COURT IS NOT SET FORTH IN
THE PRINTED RECORD HERE.  BUT THE "STATEMENT OF POINTS ON WHICH THE
APPELLANT INTENDS TO RELY," FILED IN THE COURT OF APPEALS, SPECIFIES
THAT "THE DISTRICT COURT ERRED IN ORDERING YOUNG TO PAY A FINE OF
$50.00 INSTEAD OF IMPOSING A REMEDIAL PENALTY CALCULATED TO COERCE
YOUNG TO PRODUCE OR ALLOW INSPECTION OF THE BOOKS AND RECORDS  ..." 

IN THIS STATE OF THE RECORD IT CANNOT BE TAKEN THAT THE APPEAL AND
THE JUDGMENT OF THE COURT OF APPEALS DID NOT COMPREHEND THE CRIMINAL
PENALTY. 

FN15  THIS COURT'S ACTION IN GRANTING CERTIORARI, 329 U.S. 706, WAS
NOT LIMITED TO ANY QUESTION OR PHASE OF THE COURT OF APPEALS' ACTION,
BUT BROUGHT UP THE JUDGMENT IN ITS ENTIRETY.  SINCE THAT COURT'S
JUDGMENT COMPREHENDED THE REVERSAL OF THE CRIMINAL PENALTY IMPOSED BY
THE DISTRICT COURT, THAT PHASE OF THE COURT OF APPEALS' JUDGMENT IS
NECESSARILY HERE FOR REVIEW AND DETERMINATION. 

FN16  SEE TEXT AT NOTE 20. 

FN17  SEE UNITED STATES V. UNITED MINE WORKERS, 330 U.S. 258,
DISSENTING OPINION, P. 363, PART III.  THE RULE TO SHOW CAUSE ISSUED IN
THAT CASE PROVIDED:  "IT IS FURTHER ORDERED, THAT THE ACCUSED, AND EACH
OF THEM, SHALL, UNLESS WAIVED BY THEM, BE TRIED UPON SAID CHARGES OF
CONTEMPT BY THE COURT WITH AN ADVISORY JURY TO BE EMPANELLED BY THIS
COURT."  THE ADVISORY JURY WAS WAIVED. 

FN18  SEE NOTE 11 SUPRA AND TEXT. 

FN19  THE COURT INQUIRED OF COMMISSION COUNSEL, IN RESPONSE TO
ARGUMENT THAT THE PROCEEDING WAS EXCLUSIVELY CIVIL, SINCE IT AROSE IN
THE COURSE OF CIVIL LITIGATION AND SOUGHT ONLY REMEDIAL RELIEF FOR ONE
OF THE PARTIES, AND NOT AS AN INDEPENDENT PROCEEDING IN THE PUBLIC
INTEREST TO VINDICATE THE COURT'S POWER:  "THE SECURITIES AND EXCHANGE
COMMISSION DOES NOT OPERATE FOR ITSELF, DOES IT?  I MEAN IT OPERATES IN
THE PUBLIC INTEREST, DOESN'T IT?" 

FN20  E. INGRAHAM CO. V. GERMANOW, 4 F.2D 1002, 1003. 

MR. JUSTICE FRANKFURTER, WITH WHOM CONCURS MR. JUSTICE JACKSON,
DISSENTING. 

BEGINNING WITH THE INTERSTATE COMMERCE ACT IN 1887, IT BECAME A
CONVENTIONAL FEATURE OF CONGRESSIONAL REGULATORY LEGISLATION TO GIVE
ADMINISTRATIVE AGENCIES AUTHORITY TO ISSUE SUBPOENAS FOR RELEVANT
INFORMATION.  CONGRESS HAS NEVER ATTEMPTED, HOWEVER, TO CONFER UPON AN
ADMINISTRATIVE AGENCY ITSELF THE POWER TO COMPEL OBEDIENCE TO SUCH A
SUBPOENA.  IT IS BESIDE THE POINT TO CONSIDER WHETHER CONGRESS WAS
DETERRED BY CONSTITUTIONAL DIFFICULTIES.  THAT CONGRESS SHOULD SO
CONSISTENTLY HAVE WITHHELD POWERS OF TESTIMONIAL COMPULSION FROM
ADMINISTRATIVE AGENCIES DISCLOSES A POLICY THAT SPEAKS WITH IMPRESSIVE
SIGNIFICANCE. 

INSTEAD OF AUTHORIZING AGENCIES TO ENFORCE THEIR SUBPOENAS, CONGRESS
HAS REQUIRED THEM TO RESORT TO THE COURTS FOR ENFORCEMENT.  IN THE
DISCHARGE OF THAT DUTY COURTS ACT AS COURTS AND NOT AS ADMINISTRATIVE
ADJUNCTS.  THE POWER OF CONGRESS TO IMPOSE ON COURTS THE DUTY OF
ENFORCING OBEDIENCE TO AN ADMINISTRATIVE SUBPOENA WAS SUSTAINED
PRECISELY BECAUSE COURTS WERE NOT TO BE AUTOMATA CARRYING OUT THE
WISHES OF THE ADMINISTRATIVE.  THEY WERE DISCHARGING JUDICIAL POWER
WITH ALL THE IMPLICATIONS OF THE JUDICIAL FUNCTION IN OUR
CONSTITUTIONAL SCHEME.  INTERSTATE COMMERCE COMMISSION V. BRIMSON, 154
U.S. 447; 155 U.S. 3.  ACCORDINGLY, AN ORDER DIRECTING OBEDIENCE TO A
SUBPOENA BY THE SECURITIES AND EXCHANGE COMMISSION, LIKE A SUBPOENA OF
ANY OTHER FEDERAL AGENCY, DOES NOT ISSUE AS A MATTER OF COURSE.  AN
ADMINISTRATIVE SUBPOENA MAY BE CONTESTED ON THE GROUND THAT IT EXCEEDS
THE BOUNDS SET BY THE FOURTH AMENDMENT AGAINST UNREASONABLE SEARCH AND
SEIZURE; THAT THE INQUIRY IS OUTSIDE THE SCOPE OF THE AUTHORITY
DELEGATED TO THE AGENCY; THAT THE TESTIMONY SOUGHT TO BE ELICITED IS
IRRELEVANT TO THE SUBJECT MATTER OF THE INQUIRY; THAT THE PERSON TO
WHOM IT IS DIRECTED CANNOT BE HELD RESPONSIBLE FOR THE PRODUCTION OF
THE PAPERS.  SEE INTERSTATE COMMERCE COMMISSION V. BRIMSON, SUPRA, AT
479 AND 489; HARRIMAN V. INTERSTATE COMMERCE COMMISSION, 211 U.S. 407;
ELLIS V. INTERSTATE COMMERCE COMMISSION, 237 U.S. 434; SMITH V.
INTERSTATE COMMERCE COMMISSION, 245 U.S. 33; FEDERAL TRADE COMMISSION
V. AMERICAN TOBACCO CO., 264 U.S. 298; OKLAHOMA PRESS PUBLISHING CO. V.
WALLING, 327 U.S. 186.  AND SEE LILIENTHAL, THE POWER TO COMPEL
TESTIMONY, 39 HARV. L. REV. 694. 

IN THIS CASE, THE SECURITIES AND EXCHANGE COMMISSION ISSUED A
SUBPOENA TO YOUNG, AS OFFICER OF THE PENFIELD COMPANY, FOR THE
PRODUCTION OF BOOKS AND RECORDS OF THE COMPANY COVERING THE PERIOD MAY
1, 1939, TO APRIL 9, 1943.  UPON YOUNG'S FAILURE TO COMPLY, THE
COMMISSION APPLIED TO THE DISTRICT COURT, ON APRIL 13, 1943, FOR AN
ORDER COMPELLING OBEDIENCE.  FROM THIS ORDER AN APPEAL WAS TAKEN TO THE
CIRCUIT COURT OF APPEALS WHICH AFFIRMED THE ORDER ON JUNE 30, 1944, 143
F.2D 746, ITS MANDATE BEING SPREAD ON THE RECORD OF THE DISTRICT COURT
ON DECEMBER 7, 1944.  YOUNG HAVING PERSISTED IN HIS REFUSAL TO COMPLY,
THE SECURITIES AND EXCHANGE COMMISSION, ON JANUARY 24, 1945, APPLIED
FOR A RULE TO SHOW CAUSE WHY HE SHOULD NOT BE CITED FOR CONTEMPT.  THE
DISTRICT COURT POSTPONED FINAL HEARINGS ON THE ORDER TO SHOW CAUSE,
PENDING, APPARENTLY, THE COMPLETION OF A CRIMINAL TRIAL OF YOUNG AND
THE PENFIELD COMPANY THEN BEFORE THE COURT, ON AN INDICTMENT GROWING
OUT OF THE INQUIRY FOR WHICH THE SUBPOENA HAD BEEN ISSUED.  IT WAS NOT
UNTIL JULY 2, 1945, AFTER THE PETITIONERS HAD BEEN ACQUITTED IN THE
CRIMINAL PROCEEDING, THAT THE RULE TO SHOW CAUSE WAS HEARD. 

THE DISTRICT COURT FOUND PETITIONER YOUNG GUILTY OF CONTEMPT OF COURT
FOR DISOBEDIENCE OF ITS ORDER OF JUNE 1, 1943, REQUIRING THE PRODUCTION
OF RECORDS CALLED FOR BY THE SUBPOENA ISSUED BY THE S.E.C.  BUT THE
COURT REFUSED THE GOVERNMENT'S REQUEST TO IMPOSE A CONTINGENT
PUNISHMENT TO SECURE PRODUCTION OF THE RECORDS.  INSTEAD, IT SENTENCED
YOUNG TO THE PAYMENT OF A FINE OF $50.  WITHOUT OBJECTION YOUNG PAID
THIS FINE, AND CONSISTENTLY THEREAFTER MAINTAINED THAT BY SUCH PAYMENT
JUDICIAL POWER HAD EXHAUSTED ITSELF.  SEE IN RE BRADLEY, 318 U.S. 50. 
THE GOVERNMENT APPEALED FROM THIS DISPOSITION BY THE DISTRICT COURT ON
THE GROUND THAT THE DISTRICT COURT, HAVING ADJUDGED YOUNG TO BE IN
CONTEMPT, ERRED IN ORDERING YOUNG TO PAY A FINE OF $50 AND STAND
COMMITTED UNTIL THE FINE WAS PAID, INSTEAD OF IMPOSING A REMEDIAL
PENALTY, CALCULATED TO COERCE YOUNG TO PRODUCE OR ALLOW INSPECTION OF
THE BOOKS AND RECORDS OF THE PENFIELD CO., PURSUANT TO THE ORDER OF
JUNE 1, 1943.  ON THE BASIS OF THIS APPEAL, WHICH CHALLENGED WHAT THE
DISTRICT COURT DID AND WHAT IT REFUSED TO DO, THE CIRCUIT COURT OF
APPEALS, ONE JUDGE DISSENTING, REVERSED THE ORDER OF THE LOWER COURT:
"THE ORDER IMPOSING THE FINE IS REVERSED AND THE CASE REMANDED TO THE
DISTRICT COURT FOR AN ORDER REQUIRING YOUNG'S IMPRISONMENT TO COMPEL
HIS OBEDIENCE TO THE ORDER TO PRODUCE THE DOCUMENTS IN QUESTION."  157
F.2D 65, 67.  THIS COURT THEN GRANTED CERTIORARI, THE PETITION FOR
WHICH ASKED THIS COURT TO "REVERSE THE JUDGMENT AND ORDER OF THE
CIRCUIT COURT OF APPEALS IN THIS CASE."  THERE WAS THUS PROPERLY BEFORE
THE CIRCUIT COURT OF APPEALS THE JUDGMENT IMPOSING THE FINE OF $50 AND
REFUSING TO GIVE COERCIVE REMEDY, AND THERE IS ACCORDINGLY BEFORE US
THE CORRECTNESS OF THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS SETTING
ASIDE THE $50 FINE AND ORDERING A COERCIVE DECREE. 

THE JUDGMENT IMMEDIATELY BEFORE US IS THAT OF THE CIRCUIT COURT OF
APPEALS SETTING ASIDE THE FINE IMPOSED BY THE DISTRICT COURT AND
REVERSING ITS REFUSAL TO ISSUE A COERCIVE ORDER.  THE ULTIMATE QUESTION
IS THE CORRECTNESS OF WHAT THE DISTRICT COURT DID AND WHAT IT REFUSED
TO DO.  IT IS ESSENTIAL THEREFORE TO FOCUS ATTENTION ON THE PRECISE
CIRCUMSTANCES IN WHICH THE DISTRICT COURT ACTED AS IT DID.  THIS IS
WHAT THE RECORD TELLS US:    "MR. CUTHBERTSON:  SO FAR AS THE
PUNISHMENT WHICH THE COURT MIGHT SEE FIT TO IMPOSE, THAT IS UP TO THE
COURT.  WE ARE STILL ANXIOUS TO GET A LOOK AT THESE BOOKS AND RECORDS,
SO I SUGGEST TO THE COURT, IF HE BE SO DISPOSED, WHATEVER PUNISHMENT
THE COURT MIGHT SEE FIT TO IMPOSE WOULD BE IN CONNECTION WITH OR SO
LONG AS HE REFUSED TO PRODUCE HIS BOOKS AND RECORDS FOR OUR
INSPECTION. 

"THE COURT:  I DON'T THINK THAT I AM GOING TO BE DISPOSED TO DO
ANYTHING LIKE THAT.  I SAT HERE FOR SIX WEEKS AND LISTENED TO BOOKS AND
RECORDS.  THE GOVERNMENT PRODUCED PEOPLE FROM ALL OVER THE UNITED
STATES IN CONNECTION WITH THE PENFIELD MATTER. 

"MR. CUTHBERTSON:  I MIGHT SAY, YOUR HONOR, THAT WE HAVE IN MIND THAT
THESE BOOKS AND RECORDS MAY DISCLOSE CERTAIN ACTS OTHER THAN THOSE
CHARGED IN THE INDICTMENT.  WE DON'T PROPOSE TO GO OVER THE SAME MATTER
THAT THE COURT WENT OVER IN CONNECTION WITH THE CRIMINAL CASE. 

"THE COURT:  THE COURT CAN TAKE JUDICIAL NOTICE OF ITS OWN BOOKS AND
RECORDS, AND IN THAT TRIAL THE EVIDENCE WAS CLEAR AND DEFINITE AND
POSITIVE FROM ALL OF THE GOVERNMENT'S WITNESSES, THAT DURING ONE PERIOD
OF TIME THIS DEFENDANT HAD NOTHING WHATSOEVER TO DO WITH THE PENFIELD
COMPANY.  WHETHER THAT PERIOD OF TIME IS COVERED BY WHAT THE SECURITIES
AND EXCHANGE COMMISSION SEEKS OR NOT, I DON'T KNOW. 

"THE JUDGMENT AND SENTENCE OF THE COURT IS THAT THE DEFENDANT PAY A
FINE OF $50, AND STAND COMMITTED UNTIL PAID." 

BEARING IN MIND THAT THE DISTRICT COURT WAS NOT AN AUTOMATON WHICH
MUST UNQUESTIONINGLY COMPEL OBEDIENCE TO A SUBPOENA SIMPLY BECAUSE THE
COMMISSION HAD ISSUED IT, WE MUST CONSIDER WHETHER THE DISTRICT COURT
HAD ABUSED THE FAIR LIMITS OF JUDICIAL DISCRETION.  IF A DISTRICT COURT
BELIEVES THAT HOWSOEVER RELEVANT A DEMAND FOR DOCUMENTS MAY HAVE BEEN
AT THE TIME IT WAS MADE, CIRCUMSTANCES HAD RENDERED THE SUBPOENA
OBSOLETE, IT IS ENTITLED TO CONSIDER THE MERITS OF THE SUBPOENA AS OF
THE TIME THAT ITS ENFORCEMENT IS SOUGHT AND NOT AS OF THE TIME THAT IT
WAS ISSUED.  THE ABOVE COLLOQUY MEANS NOTHING UNLESS IT MEANS THAT
JUDGE HALL WAS OF THE VIEW THAT EVENTS HAD APPARENTLY RENDERED NEEDLESS
THE CALL FROM YOUNG FOR THE DOCUMENTS.  HE MAY HAVE BEEN WRONG IN THAT
BELIEF.  AT ALL EVENTS IT WAS THE VIEW OF A JUDGE WHO HAD PRESIDED FOR
SIX WEEKS OVER A TRIAL IN WHICH THESE MATTERS WERE CANVASSED.  THE
CIRCUIT COURT OF APPEALS DID NOT HAVE BEFORE IT, NOR HAVE WE, THE
KNOWLEDGE OR THE BASIS FOR KNOWLEDGE THAT JUDGE HALL HAD, AND SO
NEITHER COURT CAN SAY WITH ANY CONFIDENCE THAT HE DID NOT HAVE GROUND
FOR THINKING THAT THE CHANGE IN CIRCUMSTANCES REVEALED IN THE COURSE OF
THE TRIAL OBVIATED THE NEED FOR THE DEMAND THAT WAS MADE UPON YOUNG. 
WE SURELY OUGHT NOT TO REVERSE THE ACTION OF THE DISTRICT JUDGE ON THE
ABSTRACT ASSUMPTION THAT PAPERS ORDERED TO BE PRODUCED AS RELEVANT TO
AN INQUIRY AT THE TIME THE SUBPOENA ISSUED CONTINUED RELEVANT SEVERAL
MONTHS LATER.  WE OUGHT NOT TO ASSUME THAT A SUBPOENA WAS PROPER MONTHS
LATER WHEN A PROCEEDING LASTING MORE THAN SIX WEEKS BEFORE THE JUDGE
WHO HAD APPROVED THE SUBPOENA IN THE FIRST INSTANCE PERSUADED HIM THAT
THE CIRCUMSTANCES NO LONGER CALLED FOR CARRYING OUT THE TERMS OF THE
SUBPOENA.  WHEN THE TRIAL JUDGE STATED HIS UNDERSTANDING THAT THE
INTERVENING CIRCUMSTANCES HAD RENDERED INAPPROPRIATE THE USE OF HIS
COERCIVE POWERS, COUNSEL FOR THE GOVERNMENT DID NOT GAINSAY THE JUDGE'S
VIEW.  THE FAILURE OF GOVERNMENT COUNSEL TO CONTRADICT THE
INTERPRETATION OF FACTS BY THE COURT DOES NOT PRESENT ANY TECHNICAL
GROUND OF NOT ALLOWING A POINT TO BE RAISED ON APPEAL TO WHICH NO
EXCEPTION WAS TAKEN.  THE SIGNIFICANCE OF COUNSEL'S SILENCE IS ITS
CONFIRMATION OF THE JUDGE'S INTERPRETATION OF THE CIRCUMSTANCES.  AT
LEAST IN THE ABSENCE OF CONTRADICTION, THE INTERPRETATION OF THE FACTS
BY THE TRIAL JUDGE WAS A PROPER BASIS FOR THE EXERCISE OF HIS JUDICIAL
DISCRETION. 

ON THE RECORD BEFORE US, JUDGE HALL EXERCISED ALLOWABLE DISCRETION IN
FINDING THAT THE SUBPOENA HAD SPENT ITS FORCE, AND IN CONCLUDING NOT TO
COMPEL OBEDIENCE TO IT.  AT THE SAME TIME, HE WAS JUSTIFIED IN FINDING
THAT BECAUSE YOUNG HAD DISOBEYED THE SUBPOENA WHILE IT WAS STILL ALIVE,
HE SHOULD BE FINED AND MADE TO FEEL THAT ONE CANNOT FLOUT A COURT'S
AUTHORITY WITH IMPUNITY. 

THE QUESTION, THEN, IS WHETHER THE COURT COULD IMPOSE WHAT
CONSTITUTED A FINE FOR CRIMINAL CONTEMPT, THAT IS, TO VINDICATE THE LAW
AS SUCH, WITHOUT A FORMAL PLEADING CHARGING YOUNG WITH SUCH
DISOBEDIENCE.  WE DO NOT THINK JUDGE HALL HAD TO DIRECT THE CLERK TO
ISSUE AN ATTACHMENT AGAINST YOUNG TO INFORM HIM OF THAT WHICH HE
OBVIOUSLY KNEW AND WHICH THE PROCEEDINGS HAD MADE ABUNDANTLY CLEAR TO
HIM.  THE TRUE SIGNIFICANCE OF OUR OPINION IN UNITED STATES V. UNITED
MINE WORKERS, 330 U.S. 258, AS WE UNDERSTAND IT, IS THAT CONTEMPT
PROCEEDINGS ARE SUI GENERIS AND SHOULD BE TREATED AS SUCH IN THEIR
PRACTICAL INCIDENCE.  THEY ARE NOT TO BE CIRCUMSCRIBED BY PROCEDURAL
FORMALITIES, OR BY TRADITIONAL LIMITATIONS OF WHAT ARE ORDINARILY
CALLED CRIMES, EXCEPT INSOFAR AS DUE PROCESS OF LAW AND THE OTHER
STANDARDS OF DECENCY AND FAIRNESS IN THE ADMINISTRATION OF FEDERAL
JUSTICE MAY REQUIRE.  ON THIS RECORD WE FIND NOT THE FAINTEST DENIAL OF
ANY SAFEGUARD OR OF APPROPRIATE PROCEDURAL PROTECTION. 

WE THINK THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD BE
REVERSED AND THAT OF THE DISTRICT COURT REINSTATED. 
..END :




HALVEY V. HALVEY, 330 U.S. 610 


NO. 384.  ARGUED FEBRUARY 5, 1947.  - DECIDED MARCH 31, 1947.  - 295
N.Y. 836, 66 N.E.2D 851, AFFIRMED. 


AFTER A MAN AND WIFE HAD BEEN MARRIED IN NEW YORK, HAD A CHILD BORN
THERE, AND HAD LIVED THERE SEVEN YEARS, THE WIFE TOOK THE CHILD TO
FLORIDA WITHOUT THE HUSBAND'S CONSENT AND ESTABLISHED A RESIDENCE
THERE.  THE NEXT YEAR, SHE INSTITUTED SUIT FOR DIVORCE IN FLORIDA. 
SERVICE OF PROCESS ON THE HUSBAND WAS HAD BY PUBLICATION AND HE MADE NO
APPEARANCE.  THE FLORIDA COURT GRANTED THE WIFE A DIVORCE AND AWARDED
HER PERMANENT CARE, CUSTODY, AND CONTROL OF THE CHILD; BUT, THE DAY
BEFORE THE DECREE WAS GRANTED, THE HUSBAND TOOK THE CHILD TO NEW YORK
WITHOUT THE KNOWLEDGE OR APPROVAL OF THE WIFE.  THE WIFE INSTITUTED
HABEAS CORPUS PROCEEDINGS IN NEW YORK, CHALLENGING THE LEGALITY OF THE
DETENTION OF THE CHILD.  THE NEW YORK COURT ORDERED (1) THAT THE
CUSTODY OF THE CHILD REMAIN WITH THE MOTHER, (2) THAT THE FATHER HAVE
RIGHTS OF VISITATION INCLUDING THE RIGHT TO KEEP THE CHILD WITH HIM
DURING STATED VACATION PERIODS EACH YEAR, AND (3) THAT THE MOTHER GIVE
A SURETY BOND CONDITIONED ON THE DELIVERY OF THE CHILD IN FLORIDA FOR
REMOVAL BY THE FATHER TO NEW YORK FOR THE PERIOD WHEN HE WAS ENTITLED
TO KEEP IT WITH HIM.  HELD:  THE ORDER OF THE NEW YORK COURT DID NOT
FAIL TO GIVE THE FLORIDA DECREE THE FULL FAITH AND CREDIT REQUIRED BY
ARTICLE IV, SEC. 1 OF THE CONSTITUTION.  PP. 612-616. 

(A)  UNDER FLORIDA LAW, CUSTODY DECREES OF FLORIDA COURTS ORDINARILY
ARE NOT RES JUDICATA IN FLORIDA OR ELSEWHERE, EXCEPT AS TO FACTS BEFORE
THE COURT AT THE TIME OF JUDGMENT.  PP. 612-613. 

(B)  THE FLORIDA COURT WOULD HAVE BEEN EMPOWERED TO MODIFY THE DECREE
IN THE INTERESTS OF THE CHILD AND TO GRANT THE FATHER THE RIGHT OF
VISITATION, HAD HE APPLIED TO IT RATHER THAN THE NEW YORK COURT AND
PRESENTED HIS VERSION OF THE CONTROVERSY FOR THE FIRST TIME IN HIS
APPLICATION FOR MODIFICATION OF THE FLORIDA DECREE.  PP. 613-614. 

(C)  SO FAR AS THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION
IS CONCERNED, WHAT FLORIDA CAN DO IN MODIFYING THE DECREE, NEW YORK
ALSO MAY DO.  PP. 614-615. 

NEW YORK EX REL. HALVEY V. HALVEY. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

A FLORIDA COURT HAVING GRANTED A DIVORCE AND AWARDED CUSTODY OF A
CHILD TO A MOTHER AND THE CHILD HAVING BEEN REMOVED TO NEW YORK BY THE
FATHER WITHOUT THE MOTHER'S CONSENT, THE MOTHER INSTITUTED HABEAS
CORPUS PROCEEDINGS IN NEW YORK.  THE NEW YORK COURT ORDERED (1) THAT
THE CUSTODY OF THE CHILD REMAIN WITH THE MOTHER, (2) THAT THE FATHER
HAVE RIGHTS OF VISITATION INCLUDING THE RIGHT TO KEEP THE CHILD WITH
HIM DURING STATED VACATION PERIODS EACH YEAR, AND (3) THAT THE MOTHER
GIVE A SURETY BOND CONDITIONED ON DELIVERY OF THE CHILD IN FLORIDA FOR
REMOVAL BY THE FATHER TO NEW YORK FOR THE PERIODS WHEN HE WAS ENTITLED
TO KEEP IT WITH HIM.  185 MISC. 52, 55 N.Y.S.2D 761.  BOTH THE
APPELLATE DIVISION, 269 APP. DIV. 1019, 59 N.Y.S.2D 396, AND THE COURT
OF APPEALS AFFIRMED, 295 N.Y. 836, 66 N.E.2D 851.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 697.  AFFIRMED, P. 616. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE HALVEYS WERE MARRIED IN 1937 AND LIVED TOGETHER IN NEW YORK UNTIL
1944.  IN 1938 A SON WAS BORN.  MARITAL TROUBLES DEVELOPED.  IN 1944
MRS. HALVEY, WITHOUT HER HUSBAND'S CONSENT, LEFT HOME WITH THE CHILD,
WENT TO FLORIDA, AND ESTABLISHED HER RESIDENCE THERE.  IN 1945 SHE
INSTITUTED A SUIT FOR DIVORCE IN FLORIDA.  SERVICE OF PROCESS ON MR.
HALVEY WAS HAD BY PUBLICATION, HE MAKING NO APPEARANCE IN THE ACTION. 
THE DAY BEFORE THE FLORIDA DECREE WAS GRANTED, MR. HALVEY, WITHOUT THE
KNOWLEDGE OR APPROVAL OF HIS WIFE, TOOK THE CHILD BACK TO NEW YORK. 
THE NEXT DAY THE DECREE WAS ENTERED BY THE FLORIDA COURT, GRANTING MRS.
HALVEY A DIVORCE AND AWARDING HER THE PERMANENT CARE, CUSTODY, AND
CONTROL OF THE CHILD. 

THEREUPON SHE BROUGHT THIS HABEAS CORPUS PROCEEDING IN THE NEW YORK
SUPREME COURT, CHALLENGING THE LEGALITY OF MR. HALVEY'S DETENTION OF
THE CHILD.  AFTER HEARING, THE NEW YORK COURT ORDERED (1) THAT THE
CUSTODY OF THE CHILD REMAIN WITH THE MOTHER; (2) THAT THE FATHER HAVE
RIGHTS OF VISITATION INCLUDING THE RIGHT TO KEEP THE CHILD WITH HIM
DURING STATED VACATION PERIODS IN EACH YEAR, AND (3) THAT THE MOTHER
FILE WITH THE COURT A SURETY BOND IN THE SUM OF $5,000, CONDITIONED ON
THE DELIVERY OF THE CHILD IN FLORIDA FOR REMOVAL BY THE FATHER TO NEW
YORK FOR THE PERIODS WHEN HE HAD THE RIGHT TO KEEP THE CHILD WITH HIM. 
185 MISC. 52, 55 N.Y.S. 761.  BOTH THE APPELLATE DIVISION, 269 APP.
DIV. 1019, 59 N.Y.S.2D 396, AND THE COURT OF APPEALS, 295 N.Y. 836, 66
N.E.2D 851, AFFIRMED WITHOUT OPINION.  THE CASE IS HERE ON A PETITION
FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE IT PRESENTED AN
IMPORTANT PROBLEM UNDER THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION.  ARTICLE IV, SEC. 1. 

THE CUSTODY DECREE WAS NOT IRREVOCABLE AND UNCHANGEABLE; THE FLORIDA
COURT HAD THE POWER TO MODIFY IT AT ALL TIMES.  FN1  UNDER FLORIDA LAW
THE "WELFARE OF THE CHILD" IS THE "CHIEF CONSIDERATION" IN SHAPING THE
CUSTODY DECREE OR IN SUBSEQUENTLY MODIFYING OR CHANGING IT. FRAZIER V.
FRAZIER, 109 FLA. 164, 169, 147 SO. 464, 466; SEE PHILLIPS V. PHILLIPS,
153 FLA. 133, 134-135, 13 SO.2D 922, 923.  BUT "THE INHERENT RIGHTS OF
PARENTS TO ENJOY THE SOCIETY AND ASSOCIATION OF THEIR OFFSPRING, WITH
REASONABLE OPPORTUNITY TO IMPRESS UPON THEM A FATHER'S OR A MOTHER'S
LOVE AND AFFECTION IN THEIR UPBRINGING, MUST BE REGARDED AS BEING OF AN
EQUALLY IMPORTANT, IF NOT CONTROLLING CONSIDERATION IN ADJUSTING THE
RIGHT OF CUSTODY AS BETWEEN PARENTS IN ORDINARY CASES."  FRAZIER V.
FRAZIER, 109 FLA., P. 169, 147 SO., P. 466.  FACTS WHICH HAVE ARISEN
SINCE THE ORIGINAL DECREE ARE ONE BASIS FOR MODIFICATION OF THE CUSTODY
DECREE.  FRAZIER V. FRAZIER, 109 FLA., P. 168, 147 SO., P. 465; JONES
V. JONES, 156 FLA. 524, 527, 23 SO.2D 623, 625.  BUT THE POWER IS NOT
SO RESTRICTED.  IT WAS HELD IN MEADOWS V. MEADOWS, 78 FLA. 576, 83 SO.
392-393, THAT "THE PROPER CUSTODY OF THE MINOR CHILD IS A PROPER
SUBJECT FOR CONSIDERATION BY THE CHANCELLOR AT ANY TIME, EVEN IF FACTS
IN ISSUE COULD HAVE BEEN CONSIDERED AT A PREVIOUS HEARING, IF SUCH
FACTS WERE NOT PRESENTED OR CONSIDERED AT A FORMER HEARING."  OR, AS
STATED IN FRAZIER V. FRAZIER, 109 FLA., P. 168, 147 SO., P. 465, A
CUSTODY DECREE "IS NOT TO BE MATERIALLY AMENDED OR CHANGED AFTERWARD,
UNLESS ON ALTERED CONDITIONS SHOWN TO HAVE ARISEN SINCE THE DECREE, OR
BECAUSE OF MATERIAL FACTS BEARING ON THE QUESTION OF CUSTODY AND
EXISTING AT THE TIME OF THE DECREE, BUT WHICH WERE UNKNOWN TO THE COURT
AND THEN ONLY FOR THE WELFARE OF THE CHILD."  THE RESULT IS THAT
CUSTODY DECREES OF FLORIDA COURTS ARE ORDINARILY NOT RES JUDICATA
EITHER IN FLORIDA OR ELSEWHERE, EXCEPT AS TO THE FACTS BEFORE THE COURT
AT THE TIME OF JUDGMENT.  MINICK V. MINICK, 111 FLA. 469, 490-491, 149
SO. 483, 492. 

RESPONDENT DID NOT APPEAR IN THE FLORIDA PROCEEDING.  WHAT EVIDENCE
WAS ADDUCED IN THAT PROCEEDING BEARING ON THE WELFARE OF THE CHILD DOES
NOT APPEAR.  BUT WE KNOW THAT THE FLORIDA COURT DID NOT SEE RESPONDENT
NOR HEAR EVIDENCE PRESENTED ON HIS BEHALF CONCERNING HIS FITNESS OR HIS
CLAIM "TO ENJOY THE SOCIETY AND ASSOCIATION" OF HIS SON.  FRAZIER V.
FRAZIER, 109 FLA., P. 169, 147 SO., P. 466.  IT SEEMS TO US PLAIN,
THEREFORE, THAT UNDER THE RULE OF MEADOWS V. MEADOWS, SUPRA, THE
FLORIDA COURT WOULD HAVE BEEN EMPOWERED TO MODIFY THE DECREE IN THE
INTERESTS OF THE CHILD AND TO GRANT RESPONDENT THE RIGHT OF VISITATION,
IF HE HAD APPLIED TO IT RATHER THAN TO THE NEW YORK COURT AND HAD
PRESENTED HIS VERSION OF THE CONTROVERSY FOR THE FIRST TIME IN HIS
APPLICATION FOR MODIFICATION. 

SO FAR AS THE FULL FAITH AND CREDIT CLAUSE IS CONCERNED, WHAT FLORIDA
COULD DO IN MODIFYING THE DECREE, NEW YORK MAY DO.  ARTICLE IV, SEC. 1
OF THE CONSTITUTION PROVIDES THAT "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."  CONGRESS BY THE ACT OF MAY 26, 1790, C. 11, AS
AMENDED, R.S. SEC. 905, 28 U.S.C. SEC. 687 DECLARED THAT JUDGMENTS
"SHALL HAVE SUCH FAITH AND CREDIT GIVEN TO THEM IN EVERY COURT WITHIN
THE UNITED STATES AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE
STATE FROM WHICH THEY ARE TAKEN."  THE GENERAL RULE IS THAT THIS
COMMAND REQUIRES THE JUDGMENT OF A SISTER STATE TO BE GIVEN FULL, NOT
PARTIAL, CREDIT IN THE STATE OF THE FORUM.  SEE DAVIS V. DAVIS, 305
U.S. 32; WILLIAMS V. NORTH CAROLINA, 317 U.S. 287.  BUT A JUDGMENT HAS
NO CONSTITUTIONAL CLAIM TO A MORE CONCLUSIVE OR FINAL EFFECT IN THE
STATE OF THE FORUM THAN IT HAS IN THE STATE WHERE RENDERED.  SEE
REYNOLDS V. STOCKTON, 140 U.S. 254, 264.  IF THE COURT OF THE STATE
WHICH RENDERED THE JUDGMENT HAD NO JURISDICTION OVER THE PERSON OR THE
SUBJECT MATTER, THE JURISDICTIONAL INFIRMITY IS NOT SAVED BY THE FULL
FAITH AND CREDIT CLAUSE.  SEE THOMPSON V. WHITMAN, 18 WALL.  457;
GRIFFIN V. GRIFFIN, 327 U.S. 220.  AND IF THE AMOUNT PAYABLE UNDER A
DECREE - AS IN THE CASE OF A JUDGMENT FOR ALIMONY - IS DISCRETIONARY
WITH THE COURT WHICH RENDERED IT, FULL FAITH AND CREDIT DOES NOT
PROTECT THE JUDGMENT.  SISTARE V. SISTARE, 218 U.S. 1, 17.  WHATEVER
MAY BE THE AUTHORITY OF A STATE TO UNDERMINE A JUDGMENT OF A SISTER
STATE ON GROUNDS NOT COGNIZABLE IN THE STATE WHERE THE JUDGMENT WAS
RENDERED (CF. WILLIAMS V. NORTH CAROLINA, 325 U.S. 226, 230), IT IS
CLEAR THAT THE STATE OF THE FORUM HAS AT LEAST AS MUCH LEEWAY TO
DISREGARD THE JUDGMENT, TO QUALIFY IT, OR TO DEPART FROM IT AS DOES THE
STATE WHERE IT WAS RENDERED. 

IN THIS CASE THE NEW YORK COURT, HAVING THE CHILD AND BOTH PARENTS
BEFORE IT, HAD A FULL HEARING AND DETERMINED THAT THE WELFARE OF THE
CHILD AND THE INTERESTS OF THE FATHER WARRANTED A MODIFICATION OF THE
CUSTODY DECREE.  IT IS NOT SHOWN THAT THE NEW YORK COURT IN MODIFYING
THE FLORIDA DECREE EXCEEDED THE LIMITS PERMITTED UNDER FLORIDA LAW. 
THERE IS THEREFORE A FAILURE OF PROOF THAT THE FLORIDA DECREE RECEIVED
LESS CREDIT IN NEW YORK THAN IT HAD IN FLORIDA. 

THE NARROW GROUND ON WHICH WE REST THE DECISION MAKES IT UNNECESSARY
FOR US TO CONSIDER SEVERAL OTHER QUESTIONS ARGUED, E.G., WHETHER
FLORIDA AT THE TIME OF THE ORIGINAL DECREE HAD JURISDICTION OVER THE
CHILD,  FN2  THE FATHER HAVING REMOVED HIM FROM THE STATE AFTER THE
PROCEEDINGS STARTED BUT BEFORE THE DECREE WAS ENTERED; WHETHER IN
ABSENCE OF PERSONAL SERVICE THE FLORIDA DECREE OF CUSTODY HAD ANY
BINDING EFFECT ON THE HUSBAND; WHETHER THE POWER OF NEW YORK TO MODIFY
THE CUSTODY DECREE WAS GREATER THAN FLORIDA'S POWER; WHETHER THE STATE
WHICH HAS JURISDICTION OVER THE CHILD MAY, REGARDLESS OF A CUSTODY
DECREE RENDERED BY ANOTHER STATE, MAKE SUCH ORDERS CONCERNING CUSTODY
AS THE WELFARE OF THE CHILD FROM TIME TO TIME REQUIRES.  ON ALL THESE
PROBLEMS WE RESERVE DECISION.  AFFIRMED. 

FN1  "IN ANY SUIT FOR DIVORCE OR ALIMONY, THE COURT SHALL HAVE POWER
AT ANY STAGE OF THE CAUSE TO MAKE SUCH ORDERS TOUCHING THE CARE,
CUSTODY AND MAINTENANCE OF THE CHILDREN OF THE MARRIAGE, AND WHAT, IF
ANY, SECURITY TO BE GIVEN FOR THE SAME, AS FROM THE CIRCUMSTANCES OF
THE PARTIES AND THE NATURE OF THE CASE MAY BE FIT, EQUITABLE AND JUST,
AND SUCH ORDER TOUCHING THEIR CUSTODY AS THEIR BEST SPIRITUAL AS WELL
AS OTHER INTERESTS MAY REQUIRE."  FLA. STATS. (1941) SEC. 65.14. 

FN2  THE LEGAL DOMICILE OF THE CHILD IS USUALLY THE DOMICILE OF HIS
FATHER.  MINICK V. MINICK, 111 FLA., P. 490, 149 SO., P. 492; DORMAN V.
FRIENDLY, 146 FLA. 732, 738, 1 SO.2D 734, 736.  THE POWER OF THE
FLORIDA COURTS TO AWARD CUSTODY OF A CHILD IS DEPENDENT EITHER ON THE
CHILD BEING LEGALLY DOMICILED IN FLORIDA OR PHYSICALLY PRESENT THERE. 
DORMAN V. FRIENDLY, SUPRA; STATE EX REL. CLARK V. CLARK, 148 FLA. 452,
4 SO.2D 517. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT ON THE GROUND THAT THE
RECORD BEFORE US DOES NOT SHOW JURISDICTION IN THE FLORIDA COURT. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

CONFLICTS ARISING OUT OF FAMILY RELATIONS RAISE PROBLEMS AND INVOLVE
CONSIDERATIONS VERY DIFFERENT FROM CONTROVERSIES TO WHICH DEBTOR
CREDITOR RELATIONS GIVE RISE.  SUCH CARDINAL DIFFERENCES IN LIFE ARE
PROPERLY REFLECTED IN LAW.  AND SO, THE USE OF THE SAME LEGAL WORDS AND
PHRASES IN ENFORCING FULL FAITH AND CREDIT FOR JUDGMENTS INVOLVING THE
TWO TYPES OF RELATIONS OUGHT NOT TO OBLITERATE THE GREAT DIFFERENCE
BETWEEN THE INTERESTS AFFECTED BY THEM, AND SHOULD NOT LEAD TO AN
IRRELEVANT IDENTITY IN RESULT. 

THE CONSTITUTIONAL POLICY FORMULATED BY THE FULL FAITH AND CREDIT
CLAUSE CANNOT BE FITTED INTO TIGHT LITTLE CATEGORIES OR TOO ABSTRACT
GENERALITIES.  THAT POLICY WAS THE NATION-WIDE RESTRICTION OF
LITIGIOUSNESS, TO THE EXTENT THAT STATES, AUTONOMOUS FOR CERTAIN
PURPOSES, SHOULD NOT BE EXPLOITED TO PERMIT REPETITIVE LITIGATION.  IN
SUBSTANCE, THE FRAMERS DEEMED IT AGAINST THE NATIONAL WELFARE FOR A
CONTROVERSY THAT WAS TRULY LITIGATED IN ONE STATE TO BE RELITIGATED IN
ANOTHER.  SUCH LIMITATION DOES NOT FORECLOSE INQUIRY INTO WHAT WAS
LITIGATED AND WHAT WAS ADJUDICATED.  THE SCOPE OF THE FULL FAITH AND
CREDIT CLAUSE IS BOUNDED BY ITS UNDERLYING POLICY AND NOT BY PROCEDURAL
CONSIDERATIONS UNRELATED TO IT.  THUS, IN JUDGMENTS AFFECTING DOMESTIC
RELATIONS TECHNICAL QUESTIONS OF "FINALITY" AS TO ALIMONY AND CUSTODY
SEEM TO ME IRRELEVANT IN DECIDING THE RESPECT TO BE ACCORDED BY A STATE
TO A VALID PRIOR JUDGMENT TOUCHING CUSTODY AND ALIMONY RENDERED BY
ANOTHER STATE.  SEE THE CONCURRING OPINION IN BARBER V. BARBER, 323
U.S. 77, 86, AND THE DISSENTING OPINIONS IN GRIFFIN V. GRIFFIN, 327
U.S. 220, AT 236 AND 248.  COMPARE YARBOROUGH V. YARBOROUGH, 290 U.S.
202. 

WHICH BRINGS ME TO THE PRESENT CASE.  IF THERE WERE NO QUESTION AS TO
THE POWER OF FLORIDA TO PROVIDE FOR THE CUSTODY OF THIS CHILD IN THE
MANNER IN WHICH THE FLORIDA DECREE OF DIVORCE DID, I THINK NEW YORK
WOULD HAVE TO RESPECT WHAT FLORIDA DECREED, UNLESS CHANGED CONDITIONS
AFFECTING THE WELFARE OF THE CHILD CALLED FOR A CHANGE IN CUSTODIAL
CARE.  NEW YORK COULD RESPOND TO SUCH CHANGED CIRCUMSTANCES.  THE
CHILD'S WELFARE MUST BE THE CONTROLLING CONSIDERATION WHENEVER A COURT
WHICH CAN ACTUALLY LAY HOLD OF A CHILD IS APPEALED TO ON BEHALF OF THE
CHILD.  SHORT OF THAT, A VALID CUSTODIAL DECREE BY FLORIDA COULD NOT BE
SET ASIDE SIMPLY BECAUSE A NEW YORK COURT, ON INDEPENDENT
CONSIDERATION, HAS ITS OWN VIEW OF WHAT CUSTODY WOULD BE APPROPRIATE. 

HERE THE LOWER NEW YORK COURT DID NOT PROVIDE FOR THE CHILD'S CUSTODY
ON THE BASIS OF CHANGED CIRCUMSTANCES.  WHILE IT PROFESSED TO RESPECT
THE FLORIDA CUSTODY DECREE, THE COURT ACTED AS THOUGH IT HAD
INDEPENDENT AUTHORITY BECAUSE OF THE DISPERSION OF THE FAMILY.  ITS
ACTION SEEMED TO BE CONTROLLED BY THE FATHER'S RIGHT, ON THE ASSUMPTION
THAT THAT WAS THE TEST OF THE CHILD'S WELFARE IN THE CIRCUMSTANCES. 
THE ORDER OF THE LOWER COURT WAS AFFIRMED BY THE APPELLATE DIVISION,
BUT THAT COURT SPECIFICALLY NOTED THAT IT DID "NOT ADOPT IN THEIR
ENTIRETY THE VIEWS EXPRESSED" BY THE COURT BELOW.  THE INTERMEDIATE
TRIBUNAL WAS, IN TURN, AFFIRMED BY THE COURT OF APPEALS.  OF COURSE, IF
THE FLORIDA DECREE IS ENTITLED TO NO RESPECT, IT IS NOT FOR US TO UPSET
THE CUSTODIAL PROVISIONS SANCTIONED BY THE HIGHEST COURT OF NEW YORK. 
ALTHOUGH WE ARE NOT AFFORDED THE GUIDANCE THAT AN OPINION WOULD GIVE AS
TO THE CONSIDERATIONS THAT MOVED THE NEW YORK COURT OF APPEALS TO
SUSTAIN THE CUSTODIAL DECREE, ON THE SLIM RECORD BEFORE US I AM NOT
JUSTIFIED IN FINDING THAT THE NEW YORK COURT OF APPEALS WAS UNMINDFUL
OF ITS DUTY UNDER THE FULL FAITH AND CREDIT CLAUSE TO RESPECT A VALID
FLORIDA JUDGMENT.    IN DETERMINING WHETHER THE NEW YORK JUDGMENT
SHOULD STAND OR FALL ACCOUNT MUST BE TAKEN OF TWO COMPETING
CONSIDERATIONS.  THERE IS FIRST THE PRESUMPTIVE JURISDICTION OF THE
COURT OF A SISTER STATE - HERE FLORIDA - TO RENDER THE JUDGMENT FOR
WHICH FULL FAITH AND CREDIT IS ASKED.  THE OTHER IS THE POWER OF A
STATE COURT - HERE NEW YORK - WHICH HAS ACTUAL CONTROL OF THE CHILD TO
MAKE PROVISION FOR THE CHILD'S WELFARE.  WHERE, AS HERE, BOTH
CONSIDERATIONS CANNOT PREVAIL ONE MUST YIELD.  SINCE THE JURISDICTION
OF THE FLORIDA COURT IN MAKING THE CUSTODIAL DECREE IS DOUBTFUL, NEW
YORK WAS JUSTIFIED IN EXERCISING ITS POWER IN THE INTEREST OF THE
CHILD.  WILLIAMS V. NORTH CAROLINA, 325 U.S. 226. 

A CLOSE ANALYSIS OF THE PRECISE ISSUE BEFORE US SEEMS TO ME TO
REQUIRE THIS CONCLUSION.  THE PROBLEM BEFORE THIS COURT IS THE VALIDITY
OF A NEW YORK JUDGMENT PROVIDING FOR THE CUSTODY OF A CHILD SUBJECT TO
ITS JURISDICTION BECAUSE WITHIN ITS POWER.  IT IS OUR DUTY TO SUSTAIN
THAT JUDGMENT UNLESS THERE IS CLEAR GROUND FOR UPSETTING IT.  APART
FROM THE EFFECT OF WHAT FLORIDA HAD PREVIOUSLY DONE, NEW YORK'S
AUTHORITY TO ENTER THIS JUDGMENT IS UNQUESTIONED.  NEW YORK'S POWER IS
QUALIFIED ONLY BY HER DUTY UNDER THE FULL FAITH AND CREDIT CLAUSE TO
RESPECT A FLORIDA JUDGMENT.  BUT THIS DUTY ARISES ONLY IF THERE WAS
LEGAL POWER IN THE FLORIDA COURT TO ENTER THE CUSTODIAL DECREE, AND IF
IN THE FLORIDA COURTS THEMSELVES THE DECREE WAS NOT SUBJECT TO THE KIND
OF MODIFICATION WHICH NEW YORK HERE MADE.  ON THE BASIS OF THE MEAGER
RECORD BEFORE US AND IN VIEW OF THE UNCERTAINTIES OF FLORIDA LAW, WE DO
NOT HAVE THE NECESSARY ASSURANCE THAT FLORIDA HAD JURISDICTION TO ISSUE
THE CUSTODIAL DECREE, OR THAT THE FLORIDA COURTS COULD NOT ENTER A
MODIFYING DECREE PRECISELY LIKE THE NEW YORK DECREE BEFORE US.  SO LONG
AS THERE IS THIS UNCERTAINTY, WE ARE NOT JUSTIFIED IN FINDING THAT NEW
YORK'S JUDGMENT WAS VITIATED BECAUSE OF A FAILURE IN HER DUTY UNDER THE
FULL FAITH AND CREDIT CLAUSE.  A FULL RECORD OF THE FLORIDA PROCEEDINGS
IN THE LIGHT OF APPLICABLE FLORIDA LAW, MORE SECURELY ASCERTAINED THAN
BY OUR INDEPENDENT INQUIRY, MIGHT LEAD TO A DIFFERENT CONCLUSION.  AS
IT IS, I CONCUR IN AFFIRMANCE OF THE JUDGMENT. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I JOIN IN THE JUDGMENT DUBITANTE, IN THE VIEW THAT UNDER FLORIDA LAW
RES JUDICATA HAS NO APPLICATION TO AN AWARD OF CUSTODY  FN1  AND THE
DECREE THEREFORE IS LACKING IN ANY QUALITY OF FINALITY WHICH WOULD
PREVENT THE COURT RENDERING IT, OR ANOTHER ACQUIRING JURISDICTION OF
THE CHILD'S STATUS, FROM ALTERING IT.  FN2 

THE RESULT SEEMS UNFORTUNATE IN THAT, APPARENTLY, IT MAY MAKE
POSSIBLE A CONTINUING ROUND OF LITIGATION OVER CUSTODY, PERHAPS ALSO OF
ABDUCTION, BETWEEN ALIENATED PARENTS.  THAT CONSEQUENCE HARDLY CAN BE
THOUGHT CONDUCIVE TO THE CHILD'S WELFARE.  AND, IF POSSIBLE, I WOULD
AVOID SUCH A DISTRESSING RESULT, SINCE I THINK THAT THE CONTROLLING
CONSIDERATION SHOULD BE THE BEST INTERESTS OF THE CHILD, NOT ONLY FOR
DISPOSING OF SUCH CASES AS A MATTER OF LOCAL POLICY, AS IT IS IN
FLORIDA AND NEW YORK,  FN3  BUT ALSO FOR FORMULATING FEDERAL POLICIES
OF FULL FAITH AND CREDIT AS WELL AS OF JURISDICTION AND DUE PROCESS IN
RELATION TO SUCH DISPOSITIONS. 

I AM NOT SURE BUT THAT THE EFFECT OF THE DECISION MAY BE THAT THE
MOTHER, ONCE THE CHILD HAS BEEN RETURNED TO FLORIDA,  FN4  WILL THEN BE
ABLE TO SECURE ANOTHER DECREE THERE NULLIFYING THE FATHER'S RIGHTS OF
VISITATION AND CUSTODY GIVEN BY THE NEW YORK DECREE,  FN5  OR THAT IN
SUCH AN EVENT HE MIGHT LAWFULLY REPEAT THE ABDUCTION AND SECURE
RESTORATION OF THOSE RIGHTS IN NEW YORK.  IF SO, THE EFFECT OF THE
DECISION MAY BE TO SET UP AN UNSEEMLY LITIGIOUS COMPETITION BETWEEN THE
STATES AND THEIR RESPECTIVE COURTS AS WELL AS BETWEEN PARENTS. 
SOMETIME, SOMEHOW, THERE SHOULD BE AN END TO LITIGATION IN SUCH
MATTERS. 

BUT OUR FUNCTION HERE IS LIMITED TO APPLICATION OF THE FULL FAITH AND
CREDIT CLAUSE.  I AGREE THAT TECHNICAL NOTIONS OF FINALITY APPLIED
GENERALLY TO OTHER TYPES OF JUDGMENT FOR SUCH PURPOSES HAVE NO PROPER
STRICT APPLICATION TO THESE DECREES.  FN6  BUT, EVEN SO, FULL FAITH AND
CREDIT IS CONCERNED WITH FINALITY AND ONLY WITH FINALITY WHEN THE
QUESTION ARISES IN RELATION TO THE BINDING EFFECTS OF JUDGMENTS.  AND
THE LAW IS CLEARLY SETTLED THAT WHILE GENERALLY THE CLAUSE REQUIRES
OTHER STATES TO GIVE JUDGMENTS AS MUCH EFFECT AS THEY HAVE WHERE
RENDERED, IT DOES NOT REQUIRE THEM TO GIVE MORE.  FN7 

ACCORDINGLY, IF THE STATE RENDERING THE JUDGMENT GIVES IT NO FINAL
EFFECT TO PREVENT ITS ALTERATION, I AM UNABLE TO SEE HOW OTHERS HAVING
JURISDICTION OF THE PARTIES AND THE SUBJECT MATTER MAY BE REQUIRED TO
GIVE IT FINALITY IN THIS RESPECT BY VIRTUE OF THE PROVISION FOR FULL
FAITH AND CREDIT.  FN8  BUT THIS IS WHAT WE WOULD HAVE TO REQUIRE, IN
VIEW OF THE STATE OF FLORIDA LAW, IN ORDER TO HOLD THAT NEW YORK COULD
NOT MAKE THE CHANGES WHICH WERE INCORPORATED IN ITS JUDGMENT. 

WHETHER FLORIDA WILL BE BOUND TO OBSERVE THOSE CHANGES, IN THE EVENT
OF ANOTHER APPLICATION BY MRS. HALVEY, IS A QUESTION UPON WHICH HOWEVER
I DESIRE TO RESERVE JUDGMENT, ALONG WITH THE OTHER QUESTIONS RESERVED
IN THE COURT'S OPINION. 

FN1  IN MINICK V. MINICK, 111 FLA. 469, 491, THE FLORIDA SUPREME
COURT QUOTED WITH APPROVAL THE STATEMENT IN SCHOULER ON MARRIAGE AND
DIVORCE (6TH ED.)  SEC.  1896:  "THESE JUDGMENTS (OF CUSTODY) ARE
NECESSARILY PROVISIONAL AND TEMPORARY IN CHARACTER, AND ARE ORDINARILY
NOT RES JUDICATA, EITHER IN THE SAME COURT OR THAT OF A FOREIGN
JURISDICTION, EXCEPT AS TO FACTS BEFORE THE COURT AT THE TIME OF THE
JUDGMENT."  SEE ALSO MEADOWS V. MEADOWS, 78 FLA. 576. 

FN2  THE TRIAL COURT IN NEW YORK GAVE LIP SERVICE TO OBSERVING THE
FLORIDA AWARD OF CUSTODY TO THE MOTHER, BUT AWARDED THE FATHER RIGHTS
"OF VISITATION" NOT ALLOWED UNDER THE FLORIDA DECREE; AND THESE
INCLUDED NOT ONLY VISITATION DURING SPECIFIED HOURS WHILE THE CHILD IS
TO REMAIN IN THE MOTHER'S CUSTODY, BUT ALSO THE RIGHT TO HAVE THE
CUSTODY DURING MORE THAN THREE MONTHS OF EACH YEAR, DURING WHICH TIME
THE MOTHER WAS GIVEN SPECIFIED VISITING RIGHTS.  THE NEW YORK APPELLATE
COURTS AFFIRMED THE AWARD AS MADE BY THE TRIAL COURT. 

FN3  SEE FLA. STAT. ANN. (1943) SEC. 65.14; JONES V. JONES, 156 FLA.
524, 527; GREEN V. GREEN, 137 FLA. 359, 361. 

SEE MATTER OF RICH V. KAMINSKY, 254 APP. DIV. 6; MATTER OF BULL, 266
APP. DIV. 290, AFF'D, 291 N.Y. 792; SEE ALSO N.Y. DOMESTIC RELATIONS
LAW SEC. 70; FINLAY V. FINLAY, 240 N.Y. 429, 433. 

FN4  THE NEW YORK JUDGMENT PERMITS THE MOTHER TO TAKE THE CHILD TO
FLORIDA DURING THE TIME SHE IS TO HAVE CUSTODY, SEE NOTE 2, BUT
REQUIRES HER TO GIVE A SURETY BOND CONDITIONED UPON HER SURRENDERING
THE CHILD TO THE FATHER AT THE BEGINNING OF THE PERIODS PRESCRIBED FOR
HIS HAVING CUSTODY. 

THE MOTHER THEREFORE CONSISTENTLY WITH THE NEW YORK DECREE MAY
LAWFULLY REMOVE THE CHILD TO FLORIDA.  ONCE HE IS PHYSICALLY AND
LAWFULLY PRESENT THERE, IT WOULD SEEM THAT THE COURTS OF THAT STATE
WOULD BE ABLE TO ACQUIRE JURISDICTION OVER HIS STATUS AND TO MAKE
FURTHER AWARDS CONCERNING IT, UNLESS INDEED PERSONAL SERVICE OF PROCESS
UPON THE FATHER IS REQUIRED FOR THAT PURPOSE. 

FN5  SEE NOTES 2, 4.  THE QUESTION WOULD REMAIN WHETHER THE FLORIDA
COURTS BY MAKING A FURTHER DECREE COULD RELIEVE THE MOTHER OF THE
COMPULSION OF THE SURETY BOND. 

FN6  SEE THE OPINION DISSENTING IN PART IN GRIFFIN V. GRIFFIN, 327
U.S. 220, AT 247; ALSO THE CONCURRING OPINION IN BARBER V. BARBER, 323
U.S. 77, AT 86. 

FN7  REV. STAT. SEC. 905, 28 U.S.C. SEC. 687, AND CASES CITED IN
GRIFFIN V. GRIFFIN, 327 U.S. 220, 236, NOTE 1. 

FN8  COMMENTATORS WHO HAVE SUGGESTED THAT FULL FAITH AND CREDIT BE
GIVEN TO CUSTODY DECREES HAVE ASSUMED THAT SUCH AWARDS COULD BE
MODIFIED ONLY ON THE BASIS OF NEW FACTS OCCURRING SUBSEQUENT TO THE
ORIGINAL CUSTODY DECREE.  SEE, E.G., EFFECT OF CUSTODY DECREE IN A
STATE OTHER THAN WHERE RENDERED (1933) 81 U. PA. L. REV. 970, 972.  AS
THE OPINION OF THE COURT POINTS OUT, THE POWER OF FLORIDA TO MODIFY
SUCH A DECREE IS NOT LIMITED TO CHANGE OF CIRCUMSTANCE.  SEE ALSO NOTE
1. 
..END :




















INDUSTRIAL COMM'N V. MCCARTIN, 330 U.S. 622 


NO. 270.  ARGUED JANUARY 17, 1947.  - DECIDED MARCH 31, 1947.  - 248
WIS. 570, 22 N.W.2D 522, REVERSED. 


AN EMPLOYEE WAS INJURED IN WISCONSIN WHILE WORKING UNDER AN ILLINOIS
CONTRACT OF EMPLOYMENT AND WHILE BOTH HE AND HIS EMPLOYER WERE
RESIDENTS OF ILLINOIS.  HE APPLIED TO THE WISCONSIN INDUSTRIAL
COMMISSION FOR ADJUSTMENT OF CLAIM AND SHORTLY THEREAFTER APPLIED TO
THE ILLINOIS INDUSTRIAL COMMISSION, STATING THAT THE GENERAL NATURE OF
THE DISPUTE WAS, "WHETHER ILLINOIS OR WISCONSIN HAS JURISDICTION IN MY
CASE."  A SETTLEMENT CONTRACT EXPRESSLY RESERVING ANY RIGHT THE
EMPLOYEE "MAY HAVE" UNDER THE WISCONSIN ACT WAS FILED WITH THE ILLINOIS
COMMISSION, WHICH APPROVED IT AND ISSUED A FORMAL SETTLEMENT ORDER. 
AFTER FULL PAYMENT OF THE AMOUNT AWARDED IN ILLINOIS HAD BEEN MADE, THE
WISCONSIN COMMISSION AWARDED THE EMPLOYEE CERTAIN BENEFITS, LESS THE
AMOUNT RECEIVED UNDER THE ILLINOIS AWARD.  HELD:  THE ILLINOIS AWARD IS
FINAL AND CONCLUSIVE ONLY AS TO RIGHTS ARISING IN ILLINOIS, AND
WISCONSIN IS FREE UNDER THE FULL FAITH AND CREDIT CLAUSE TO AWARD
ADDITIONAL COMPENSATION IN ACCORD WITH ITS OWN LAWS.  MAGNOLIA
PETROLEUM CO. V. HUNT, 320 U.S. 430, DISTINGUISHED.  PP. 626-630. 

(A)  THE FACT THAT THE ILLINOIS STATUTE EXPRESSLY APPLIES TO PERSONS
WHOSE EMPLOYMENT IS OUTSIDE THE STATE (WHERE THE CONTRACT OF EMPLOYMENT
IS MADE IN ILLINOIS) AND PRECLUDES RECOVERY UNDER ANY "COMMON LAW OR
STATUTORY RIGHT" DID NOT PRECLUDE RECOVERY UNDER THE WISCONSIN STATUTE,
BECAUSE THE ILLINOIS STATUTE HAD BEEN INTERPRETED BY THE SUPREME COURT
OF ILLINOIS AS ABOLISHING RIGHTS OF ACTION AGAINST THE EMPLOYER UNDER
THE ILLINOIS COMMON LAW OR UNDER THE ILLINOIS PERSONAL INJURIES ACT AND
CONTAINED NOTHING TO INDICATE THAT IT WAS COMPLETELY EXCLUSIVE OR WAS
DESIGNED TO PRECLUDE ANY RECOVERY UNDER PROCEEDINGS IN ANOTHER STATE
FOR INJURIES RECEIVED THERE IN THE COURSE OF AN ILLINOIS EMPLOYMENT. 
PP. 627-628. 

(B)  THE PROVISION IN THE SETTLEMENT CONTRACT SAVING THE RIGHTS OF
THE EMPLOYEE IN WISCONSIN BECAME A PART OF THE ILLINOIS AWARD, WHICH
HAD BECOME FINAL.  THEREFORE, THE ILLINOIS AWARD DID NOT FORECLOSE AN
ADDITIONAL AWARD UNDER THE LAWS OF WISCONSIN.  PP. 628-630. 

INDUSTRIAL COMMISSION OF WISCONSIN ET AL. V. MCCARTIN ET AL. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

AN EMPLOYEE INJURED IN WISCONSIN WHILE WORKING UNDER AN ILLINOIS
CONTRACT OF EMPLOYMENT AND WHILE BOTH HE AND HIS EMPLOYER WERE
RESIDENTS OF ILLINOIS ACCEPTED SETTLEMENT UNDER THE ILLINOIS WORKMEN'S
COMPENSATION ACT, RESERVING ANY RIGHTS HE MIGHT HAVE UNDER THE
WISCONSIN COMPENSATION ACT, AND LATER OBTAINED AN AWARD FOR ADDITIONAL
BENEFITS UNDER THE WISCONSIN ACT.  A WISCONSIN COURT SET ASIDE THE
WISCONSIN AWARD AND THIS ACTION WAS AFFIRMED BY THE SUPREME COURT OF
WISCONSIN.  248 WIS. 570, 22 N.W.2D 522.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 696.  REVERSED, P. 630. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN MAGNOLIA PETROLEUM CO. V. HUNT, 320 U.S. 430, THIS COURT HAD
OCCASION TO CONSIDER THE EFFECT OF THE FULL FAITH AND CREDIT CLAUSE OF
THE CONSTITUTION OF THE UNITED STATES WHERE AWARDS ARE SOUGHT UNDER THE
WORKMEN'S COMPENSATION LAWS OF TWO STATES.  THIS CASE PRESENTS ANOTHER
FACET OF THAT PROBLEM. 

THE FACTS ARE UNDISPUTED.  LEO THOMAS KOPP WORKED AS A BRICKLAYER FOR
E. E. MCCARTIN.  BOTH WERE RESIDENTS OF ILLINOIS.  PURSUANT TO A
CONTRACT MADE IN ILLINOIS, KOPP WORKED FOR MCCARTIN ON A BUILDING JOB
IN WISCONSIN.  HE DROVE BACK AND FORTH BETWEEN HIS HOME IN ILLINOIS AND
HIS WORK IN WISCONSIN.  WHILE THUS EMPLOYED IN WISCONSIN, KOPP SUFFERED
AN INJURY TO HIS LEFT EYE.  ON JUNE 7, 1943, HE FILED AN APPLICATION
FOR ADJUSTMENT OF CLAIM WITH THE INDUSTRIAL COMMISSION OF WISCONSIN. 
MCCARTIN AND HIS INSURANCE CARRIER ENTERED AN OBJECTION TO THE
JURISDICTION OF THE WISCONSIN COMMISSION TO HEAR THE CLAIM.  THEN ON
JULY 20, 1943, KOPP FILED AN APPLICATION FOR ADJUSTMENT OF CLAIM WITH
THE INDUSTRIAL COMMISSION OF ILLINOIS, IN WHICH THE GENERAL NATURE OF
THE DISPUTE WAS GIVEN AS "WHETHER ILLINOIS OR WISCONSIN HAS
JURISDICTION IN MY CASE." 

UNDER DATE OF OCTOBER 11, 1943, THE WISCONSIN COMMISSION WROTE THE
INSURANCE CARRIER THAT KOPP HAD BEEN INFORMED THAT, SO FAR AS WISCONSIN
LAW WAS CONCERNED, HE WAS ENTITLED TO PROCEED UNDER THE ILLINOIS
WORKMEN'S COMPENSATION ACT (ILL. REV. STAT. 1943, CH. 48, SECS. 138
172) AND THEREAFTER CLAIM COMPENSATION UNDER THE WISCONSIN WORKMEN'S
COMPENSATION ACT (WIS. STAT. 1945, CH. 102), WITH CREDIT TO BE GIVEN
FOR THE AMOUNT PAID HIM PURSUANT TO THE ILLINOIS ACT.  A COPY OF THIS
LETTER WAS SENT TO KOPP.  COUNSEL FOR THE INSURANCE CARRIER REPLIED ON
NOVEMBER 3, 1943.  IT WAS THERE STATED THAT THE INSURANCE CARRIER
UNDERSTOOD THAT IF PAYMENTS WERE MADE BY IT TO KOPP UNDER THE ILLINOIS
STATUTE CREDIT WOULD BE GIVEN FOR THOSE PAYMENTS IN THE EVENT AN AWARD
WAS MADE TO KOPP UNDER THE WISCONSIN ACT; AND WITH THAT UNDERSTANDING,
THE INSURANCE CARRIER WAS PROCEEDING TO PAY KOPP COMPENSATION UNDER THE
ILLINOIS STATUTE. 

ON NOVEMBER 3, 1943, A SETTLEMENT CONTRACT WAS SIGNED BY KOPP AND
MCCARTIN.  THE PARTIES THEREIN AGREED THAT THE SUM OF $2,112 WAS TO BE
PAID TO KOPP IN FULL AND FINAL SETTLEMENT OF ANY AND ALL CLAIMS ARISING
OUT OF KOPP'S INJURY BY VIRTUE OF THE ILLINOIS WORKMEN'S COMPENSATION
ACT.  THE CONTRACT ALSO STATED:  "THIS SETTLEMENT DOES NOT AFFECT ANY
RIGHTS THAT APPLICANT MAY HAVE UNDER THE WORKMEN'S COMPENSATION ACT OF
THE STATE OF WISCONSIN." 

THE SETTLEMENT CONTRACT AND A PETITION BY KOPP THAT THE AMOUNT DUE BE
PAID TO HIM IN A LUMP SUM WERE FILED WITH THE ILLINOIS COMMISSION ON
NOVEMBER 29, 1943.  A HEARING WAS HELD BEFORE A COMMISSIONER ON
DECEMBER 3, IN THE COURSE OF WHICH ATTENTION WAS CALLED TO THE
RESERVATION OF RIGHTS IN WISCONSIN.  THE PRESIDING COMMISSIONER
INFORMED KOPP THAT HE DID NOT KNOW WHAT EFFECT THE RESERVATION HAD OR
WHAT KOPP'S RIGHTS WERE UNDER THE WISCONSIN STATUTE.  KOPP REPLIED THAT
HE WOULD APPRECIATE RECEIVING THE LUMP SUM UNDER THE ILLINOIS LAW AND
THAT HE WOULD "TAKE CHANCES ON WISCONSIN."  FOLLOWING THE HEARING, THE
COMMISSIONER APPROVED THE SETTLEMENT CONTRACT AND THE PETITION FOR A
LUMP SUM PAYMENT.  KOPP RECEIVED PAYMENT ON DECEMBER 7 IN THE AMOUNT
SPECIFIED IN THE SETTLEMENT CONTRACT PLUS A SMALL ADDITIONAL SUM FOR
TEMPORARY DISABILITY.  THEREAFTER, ON JANUARY 10, 1944, A FORMAL ORDER
WAS ENTERED BY THE ILLINOIS COMMISSION DIRECTING PAYMENT OF THE LUMP
SUM OF $2,112.  THE CIRCUMSTANCES OF THE ENTRY OF THIS LATER ORDER,
AFTER PAYMENT HAD BEEN MADE IN FACT, ARE NOT DISCLOSED.  NO PETITION TO
REVIEW THE SETTLEMENT CONTRACT OR LUMP SUM PAYMENT WAS FILED AND NO
ACTION TO SECURE A REVIEW OF THE FORMAL ORDER WAS TAKEN. 

IN THE MEANTIME, ON DECEMBER 20, 1943, THIS COURT'S DECISION IN
MAGNOLIA PETROLEUM CO. V. HUNT, SUPRA, WAS RENDERED.  THE WISCONSIN
COMMISSION THEN HELD A HEARING ON FEBRUARY 20, 1944, ON KOPP'S
APPLICATION BEFORE IT.  MCCARTIN AND THE INSURANCE CARRIER FILED AN
AMENDED ANSWER, CONTENDING THAT UNDER THE FULL FAITH AND CREDIT CLAUSE
THE WISCONSIN PROCEEDINGS WERE BARRED BY THE AWARD AND PAYMENT UNDER
THE ILLINOIS ACT; RELIANCE WAS PLACED UPON THE MAGNOLIA PETROLEUM CO.
CASE.  THE COMMISSION OVERRULED THIS OBJECTION AND ORDERED THE PAYMENT
TO KOPP OF CERTAIN BENEFITS, AFTER GIVING CREDIT FOR THE SUMS PAID
UNDER THE ILLINOIS ACT. 

THE CIRCUIT COURT FOR DANE COUNTY, WISCONSIN, SET ASIDE THE WISCONSIN
COMMISSION'S ORDER ON THE AUTHORITY OF THE MAGNOLIA PETROLEUM CO.
CASE.  ON APPEAL, THE SUPREME COURT OF WISCONSIN AFFIRMED THE LOWER
COURT'S JUDGMENT ON THE SAME AUTHORITY.  248 WIS. 570, 22 N.W.2D 522. 
WE GRANTED CERTIORARI TO DETERMINE THE APPLICABILITY OF THE FULL FAITH
AND CREDIT CLAUSE, AS INTERPRETED IN THE MAGNOLIA PETROLEUM CO. CASE,
TO THE FACTS OF THIS CASE. 

IT IS CLEAR, IN THE ABSENCE OF A PRIOR AWARD IN WISCONSIN, THAT THE
COMPENSATION PAID TO THE EMPLOYEE UNDER THE ILLINOIS WORKMEN'S
COMPENSATION ACT WAS CONSTITUTIONALLY PROPER FROM THE FULL FAITH AND
CREDIT STANDPOINT.  ILLINOIS WAS THE STATE WHERE THE PARTIES ENTERED
INTO THE EMPLOYMENT CONTRACT AND ITS LEGITIMATE CONCERN WITH THAT
EMPLOYER-EMPLOYEE RELATIONSHIP PERMITTED IT TO APPLY ITS OWN STATUTE
EVEN THOUGH THE INJURY OCCURRED ELSEWHERE.  ALASKA PACKERS ASSN. V.
INDUSTRIAL ACCIDENT COMM'N, 294 U.S. 532; CARDILLO V. LIBERTY MUTUAL
INS. CO., 330 U.S. 469.  AT THE SAME TIME, IN VIEW OF THE FACT THAT THE
ACCIDENT TOOK PLACE IN WISCONSIN, ANY FULL FAITH AND CREDIT QUESTIONS
THAT MIGHT HAVE BEEN RAISED HAD COMPENSATION FIRST BEEN AWARDED UNDER
THE WISCONSIN WORKMEN'S COMPENSATION ACT ARE ANSWERED BY PACIFIC
EMPLOYERS INS. CO. V. INDUSTRIAL ACCIDENT COMMISSION, 306 U.S. 493. 
THE TROUBLESOME PROBLEM THAT ARISES HERE IS WHETHER THE COMPENSATION
PAID UNDER THE ILLINOIS STATUTE RAISES A FULL FAITH AND CREDIT BAR TO A
SUBSEQUENT AWARD IN WISCONSIN FOR AN ADDITIONAL AMOUNT. 

IF IT WERE APPARENT THAT THE ILLINOIS AWARD WAS INTENDED TO BE FINAL
AND CONCLUSIVE OF ALL THE EMPLOYEE'S RIGHTS AGAINST THE EMPLOYER AND
THE INSURER GROWING OUT OF THE INJURY, THE DECISION IN THE MAGNOLIA
PETROLEUM CO. CASE WOULD BE CONTROLLING HERE.  THE COURT THERE FOUND
THAT THE COMPENSATION AWARD UNDER THE TEXAS WORKMEN'S COMPENSATION LAW
WAS MADE EXPLICITLY IN LIEU OF ANY OTHER RECOVERY FOR INJURY TO THE
EMPLOYEE, PRECLUDING EVEN A RECOVERY UNDER THE LAWS OF ANOTHER STATE. 
SEE BRADFORD ELEC.  CO. V. CLAPPER, 286 U.S. 145, 153.  AND SINCE THE
TEXAS AWARD HAD THE DEGREE OF FINALITY CONTEMPLATED BY THE FULL FAITH
AND CREDIT CLAUSE, IT WAS HELD THAT LOUISIANA WAS CONSTITUTIONALLY
FORBIDDEN FROM ENTERING A SUBSEQUENT AWARD UNDER ITS STATUTE.  BUT WE
DO NOT BELIEVE THAT THE SAME SITUATION EXISTS IN THIS CASE, THE
ILLINOIS AWARD BEING DIFFERENT IN ITS NATURE AND EFFECT FROM THE TEXAS
AWARD IN THE MAGNOLIA CASE. 

THE ILLINOIS WORKMEN'S COMPENSATION ACT WAS CONCEDEDLY APPLICABLE
UNDER THE CIRCUMSTANCES OF THIS CASE.  SECTION 3 OF THAT ACT PROVIDES
THAT IT SHALL APPLY AUTOMATICALLY AND WITHOUT ELECTION TO ALL EMPLOYERS
AND EMPLOYEES ENGAGED IN BUSINESSES OR ENTERPRISES SUCH AS THOSE
INVOLVING THE ERECTION OR CONSTRUCTION OF ANY STRUCTURE.  AT THE TIME
WHEN HE WAS INJURED, KOPP WAS DOING MASON WORK FOR HIS EMPLOYER IN
CONNECTION WITH THE ERECTION OF HOUSES.  SECTION 5 THEN PROVIDES THAT
THE TERM "EMPLOYEE" INCLUDES THOSE PERSONS "WHOSE EMPLOYMENT IS OUTSIDE
OF THE STATE OF ILLINOIS WHERE THE CONTRACT OF HIRE IS MADE WITHIN THE
STATE OF ILLINOIS  ..."  KOPP WAS SUCH AN EMPLOYEE, HAVING BEEN HIRED
IN ILLINOIS AND INJURED WHILE EMPLOYED IN WISCONSIN. 

DAMAGES FOR INJURY OR DEATH SUSTAINED BY ANY EMPLOYE WHILE ENGAGED IN
THE LINE OF HIS DUTY AS SUCH EMPLOYE, OTHER THAN THE COMPENSATION
HEREIN PROVIDED, SHALL BE AVAILABLE TO ANY EMPLOYE WHO IS COVERED BY
THE PROVISIONS OF THIS ACT,  ..."  THIS SECTION HAS BEEN INTERPRETED TO
MEAN THAT, IN SITUATIONS TO WHICH THE ACT APPLIES, THE RIGHT OF ACTION
AGAINST THE EMPLOYER UNDER THE ILLINOIS COMMON LAW OR UNDER THE
ILLINOIS PERSONAL INJURIES ACT (ILL. REV. STAT. 1943, CH. 70, SECS. 1,
2) HAS BEEN ABOLISHED.  MISSISSIPPI RIVER POWER CO. V. INDUSTRIAL
COMMISSION, 289 ILL. 353, 124 N.E. 552; FABER V. INDUSTRIAL COMMISSION,
352 ILL. 115, 185 N.E. 255.  TO THAT EXTENT, THE ACT PROVIDES AN
EXCLUSIVE REMEDY. 

BUT THERE IS NOTHING IN THE STATUTE OR IN THE DECISIONS THEREUNDER TO
INDICATE THAT IT IS COMPLETELY EXCLUSIVE, THAT IT IS DESIGNED TO
PRECLUDE ANY RECOVERY BY PROCEEDINGS BROUGHT IN ANOTHER STATE FOR
INJURIES RECEIVED THERE IN THE COURSE OF AN ILLINOIS EMPLOYMENT.  CF.
BRADFORD ELEC.  CO. V. CLAPPER, SUPRA; COLE V. INDUSTRIAL COMMISSION,
353 ILL. 415, 187 N.E. 520.  AND IN LIGHT OF THE RULE THAT WORKMEN'S
COMPENSATION LAWS ARE TO BE LIBERALLY CONSTRUED IN FURTHERANCE OF THE
PURPOSE FOR WHICH THEY WERE ENACTED, BALTIMORE & PHILA.  STEAMBOAT CO.
V. NORTON, 284 U.S. 408, 414, WE SHOULD NOT READILY INTERPRET SUCH A
STATUTE SO AS TO CUT OFF AN EMPLOYEE'S RIGHT TO SUE UNDER OTHER
LEGISLATION PASSED FOR HIS BENEFIT.  ONLY SOME UNMISTAKABLE LANGUAGE BY
A STATE LEGISLATURE OR JUDICIARY WOULD WARRANT OUR ACCEPTING SUCH A
CONSTRUCTION.  ESPECIALLY IS THIS TRUE WHERE THE RIGHTS AFFECTED ARE
THOSE ARISING UNDER LEGISLATION OF ANOTHER STATE AND WHERE THE FULL
FAITH AND CREDIT PROVISION OF THE UNITED STATES CONSTITUTION IS BROUGHT
INTO PLAY.  SEE OHIO V. CHATTANOOGA BOILER CO., 289 U.S. 439. 

WE NEED NOT REST OUR DECISION, HOWEVER, SOLELY UPON THE ABSENCE OF
ANY PROVISION OR CONSTRUCTION OF THE ILLINOIS WORKMEN'S COMPENSATION
ACT FORBIDDING AN EMPLOYEE FROM SEEKING ALTERNATIVE OR ADDITIONAL
RELIEF UNDER THE LAWS OF ANOTHER STATE.  THERE IS ADDITIONAL EVIDENCE
THAT THE EMPLOYEE IS FREE TO ASK FOR ADDITIONAL COMPENSATION IN
WISCONSIN.  THAT EVIDENCE IS IN THE ILLINOIS AWARD ITSELF, AN AWARD
WHICH IS ACKNOWLEDGED TO HAVE BEEN MADE IN COMPLIANCE WITH THE ILLINOIS
STATUTE. 

HERE THE EMPLOYER AND THE EMPLOYEE ENTERED INTO A SETTLEMENT CONTRACT
FIXING THE AMOUNT OF COMPENSATION TO WHICH THE EMPLOYEE WAS ENTITLED
UNDER THE ILLINOIS STATUTE, THEREBY AVOIDING THE EXPENSE AND DELAY OF
LITIGATING THE MATTER.  THIS CONTRACT, TOGETHER WITH THE EMPLOYEE'S
PETITION FOR A LUMP SUM PAYMENT, WAS APPROVED BY ONE OF THE
COMMISSIONERS OF THE ILLINOIS INDUSTRIAL COMMISSION.  BY THAT APPROVAL,
THE AGREEMENT BECAME "IN LEGAL EFFECT AN AWARD."  HARTFORD ACCIDENT CO.
V. INDUSTRIAL COMMISSION, 320 ILL. 544, 546, 151 N.E. 495, 496;
MICHELSON V. INDUSTRIAL COMMISSION, 375 ILL. 462, 31 N.E.2D 940.  UNDER
ILLINOIS LAW, SUCH AWARDS ARE DESCRIBED AS RES JUDICATA ON THE MATTERS
THUS ADJUDICATED AND AGREED UPON, PRECLUDING THE COMMISSION FROM
SUBSEQUENTLY REVIEWING THE AWARDS OR SETTING THEM ASIDE.  CENTRALIA
COAL CO. V. INDUSTRIAL COMMISSION, 297 ILL. 451, 130 N.E. 727;
STROMBERG MOTOR DEVICE CO. V. INDUSTRIAL COMMISSION, 305 ILL. 619, 137
N.E. 462; LEWIN METALS CORP. V. INDUSTRIAL COMMISSION, 360 ILL. 371,
196 N.E. 482; TRIGG V. INDUSTRIAL COMMISSION, 364 ILL. 581, 5 N.E.2D
394. 

ONE OF THE PROVISIONS IN THE SETTLEMENT CONTRACT WHICH BECAME THE
AWARD WAS THE STATEMENT THAT "THIS SETTLEMENT DOES NOT AFFECT ANY
RIGHTS THAT APPLICANT MAY HAVE UNDER THE WORKMEN'S COMPENSATION ACT OF
THE STATE OF WISCONSIN."  THAT STATEMENT WAS MADE A PART OF THE
CONTRACT AT THE REQUEST OF THE EMPLOYEE, WHO HAD BEEN INFORMED BY THE
WISCONSIN COMMISSION THAT HE WAS ENTITLED TO CLAIM AN ADDITIONAL AMOUNT
OF COMPENSATION IN WISCONSIN AFTER RECOVERING IN ILLINOIS.  SEE
INTERSTATE POWER CO. V. INDUSTRIAL COMMISSION, 203 WIS. 466, 234 N.W.
889; SALVATION ARMY V. INDUSTRIAL COMMISSION, 219 WIS. 343, 263 N.W.
349; WISCONSIN BRIDGE & IRON CO. V. INDUSTRIAL COMMISSION, 222 WIS.
194, 268 N.W. 134.  THE EMPLOYER'S INSURANCE CARRIER WAS LIKEWISE
INFORMED, AND ALL THE PARTIES PROCEEDED ON THE ASSUMPTION THAT THE
EMPLOYEE WAS ATTEMPTING TO RECOVER COMPENSATION UNDER THE STATUTES OF
BOTH ILLINOIS AND WISCONSIN, WITH CREDIT TO BE GIVEN IN WISCONSIN FOR
ANY SUM RECOVERED IN ILLINOIS.  IN FURTHERANCE OF THIS COMMON
UNDERSTANDING, THE ABOVE STATEMENT WAS INSERTED IN THE ILLINOIS
SETTLEMENT CONTRACT AND WAS BROUGHT TO THE ATTENTION OF THE INDUSTRIAL
COMMISSIONER BEFORE HE APPROVED THE CONTRACT.  THE COMMISSIONER
CONFESSED THAT HE DID NOT KNOW THE MEANING OF THIS PROVISION, BUT HE
DID NOT ORDER IT STRICKEN.  RATHER HE APPROVED IT FOR WHATEVER IT WAS
WORTH.    THIS CONTRACT PROVISION SAVING THE RIGHTS OF THE EMPLOYEE IN
WISCONSIN THUS BECAME PART OF THE ILLINOIS AWARD, AN AWARD WHICH HAS
ACHIEVED FINALITY IN THE ABSENCE OF A TIMELY APPEAL.  THIS PROVISION
MEANS MORE THAN MIGHT BE IMPLIED IN THE CASE OF AN ORDINARY JUDGMENT OR
DECREE.  ANY PARTY, OF COURSE, HAS THE RIGHT TO SEEK ANOTHER JUDGMENT
OR DECREE, HOWEVER INCONSISTENT OR FUTILE SUCH AN ATTEMPT MIGHT BE; AND
IT TAKES NO RESERVATION IN THE ORIGINAL JUDGMENT OR DECREE TO GIVE HIM
THAT RIGHT.  BUT WHEN THE RESERVATION IN THIS AWARD IS READ AGAINST THE
BACKGROUND OF THE ILLINOIS WORKMEN'S COMPENSATION ACT, IT BECOMES CLEAR
THAT THE RESERVATION SPELLS OUT WHAT WE BELIEVE TO BE IMPLICIT IN THAT
ACT - NAMELY, THAT AN ILLINOIS WORKMEN'S COMPENSATION AWARD OF THE TYPE
HERE INVOLVED DOES NOT FORECLOSE AN ADDITIONAL AWARD UNDER THE LAWS OF
ANOTHER STATE.  AND IN THE SETTING OF THIS CASE, THAT FACT IS OF
DECISIVE SIGNIFICANCE. 

SINCE THIS ILLINOIS AWARD IS FINAL AND CONCLUSIVE ONLY AS TO RIGHTS
ARISING IN ILLINOIS, WISCONSIN IS FREE UNDER THE FULL FAITH AND CREDIT
CLAUSE TO GRANT AN AWARD OF COMPENSATION IN ACCORD WITH ITS OWN LAWS. 
MAGNOLIA PETROLEUM CO. V. HUNT, SUPRA, THUS DOES NOT CONTROL THIS
CASE.  REVERSED. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 
..END :














HAUPT V. UNITED STATES, 330 U.S. 631 


NO. 49.  ARGUED NOVEMBER 21, 22, 1946.  - DECIDED MARCH 31, 1947.  - 152
F.2D 771, AFFIRMED. 


1.  IN A TRIAL FOR TREASON, PROOF BY THE DIRECT TESTIMONY OF TWO
WITNESSES THAT DEFENDANT GAVE SHELTER FOR A PERIOD OF SIX DAYS TO AN
ENEMY AGENT WHO HAD ENTERED THIS COUNTRY FOR PURPOSES OF SABOTAGE,
HELPED HIM TO BUY AN AUTOMOBILE AND HELPED HIM TO OBTAIN EMPLOYMENT IN
A PLANT MANUFACTURING MILITARY EQUIPMENT, ALL IN AID OF HIS KNOWN
PURPOSE OF SABOTAGE, WAS SUFFICIENT PROOF OF OVERT ACTS TO SATISFY THE
REQUIREMENTS OF ARTICLE III, SEC. 3 OF THE CONSTITUTION.  CRAMER V.
UNITED STATES, 325 U.S. 1, DISTINGUISHED.  PP. 634-636. 

2.  PROOF BY DIRECT TESTIMONY OF TWO WITNESSES (DETAILED IN THE
OPINION) THAT THE SABOTEUR SPENT THE NIGHTS IN THE HOUSE WHERE THE
DEFENDANT LIVED AND WITH THE DEFENDANT'S KNOWLEDGE WAS SUFFICIENT PROOF
OF THE OVERT ACT OF HARBORING AND SHELTERING.  PP. 636-638. 

3.  PROOF BY DIRECT TESTIMONY OF TWO WITNESSES (DETAILED IN THE
OPINION) THAT THE DEFENDANT PURCHASED AN AUTOMOBILE AND THAT THE
SABOTEUR TOOK IT AND DROVE IT AWAY WAS SUFFICIENT PROOF OF THE OVERT
ACT OF ASSISTING IN THE PURCHASE OF AN AUTOMOBILE - EVEN THOUGH THE
TESTIMONY OF THE TWO WITNESSES WAS NOT IDENTICAL AND SOME OF THEIR
TESTIMONY RELATED TO DIFFERENT PARTS OF THE SAME TRANSACTION.  PP. 638
640. 

4.  IT WAS FOR THE JURY TO DETERMINE UPON THE EVIDENCE WHETHER THE
ACTS OF DEFENDANT WERE MOTIVATED BY PARENTAL SOLICITUDE FOR HIS SON,
THE SABOTEUR, OR BY ADHERENCE TO THE ENEMY CAUSE.  PP. 641-642. 

5.  THE JURY WERE PROPERLY INSTRUCTED THAT, IF THEY FOUND THAT
DEFENDANT'S INTENTION WAS NOT TO INJURE THE UNITED STATES BUT MERELY TO
AID HIS SON "AS AN INDIVIDUAL, AS DISTINGUISHED FROM ASSISTING HIM IN
HIS PURPOSES, IF SUCH EXISTED, OF AIDING THE GERMAN REICH, OR OF
INJURING THE UNITED STATES, THE DEFENDANT MUST BE FOUND NOT GUILTY." 
PP. 641-642. 

6.  CONVERSATIONS AND OCCURRENCES EVIDENCING THE DEFENDANT'S SYMPATHY
WITH GERMANY AND WITH HITLER AND HOSTILITY TO THE UNITED STATES, THOUGH
LONG PRIOR TO THE INDICTMENT, WERE ADMISSIBLE ON THE QUESTION OF INTENT
AND ADHERENCE TO THE ENEMY, AND THEIR WEIGHT WAS FOR THE JURY.  PP. 642
643. 

7. WHEN LEGAL BASIS FOR A CONVICTION OF TREASON HAS BEEN LAID BY THE
TESTIMONY OF TWO WITNESSES TO THE SAME OVERT ACT, THERE IS NOTHING IN
THE TEXT OR POLICY OF THE CONSTITUTION PRECLUDING THE USE OF
CORROBORATIVE OUT-OF-COURT ADMISSIONS OR CONFESSIONS.  P. 643. 

8.  OTHER ERRORS ASSIGNED BY PETITIONER RELATIVE TO THE CONDUCT OF
THE TRIAL - SUCH AS PERMITTING THE INDICTMENT TO GO TO THE JURY ROOM,
ALLOWING THE JURY TO HAVE A TYPEWRITTEN COPY OF THE COURT'S CHARGE,
HOLDING THE JURY TOGETHER FOR A LONG TIME, READING THE TESTIMONY OF
CERTAIN WITNESSES TO THE JURY AT ITS REQUEST, FAILING TO ORDER A
SPECIAL VERDICT, AND IMPROPER APPEALS TO PASSION BY THE PROSECUTOR -
ARE EXAMINED AND FOUND NOT TO INVOLVE SUCH UNFAIRNESS OR IRREGULARITY
AS WOULD WARRANT REVERSAL.  P. 643. 

HAUPT V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

PETITIONER WAS INDICTED AND CONVICTED OF TREASON.  THE CIRCUIT COURT
OF APPEALS REVERSED.  136 F.2D 661.  ON A SECOND TRIAL, PETITIONER WAS
AGAIN CONVICTED.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  152 F.2D
771.  THIS COURT GRANTED CERTIORARI.  328 U.S. 831.  AFFIRMED, P. 644. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER, HANS MAX HAUPT WAS INDICTED FOR TREASON, CONVICTED AND
SENTENCED TO LIFE IMPRISONMENT AND TO PAY A FINE OF $10,000.  FROM THIS
JUDGMENT OF THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS HE
APPEALED TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT, WHICH BY A DIVIDED COURT AFFIRMED.  152 F.2D 771.  A PREVIOUS
CONVICTION OF THE SAME OFFENSE PREDICATED ON THE SAME ACTS HAD BEEN
REVERSED.  UNITED STATES V. HAUPT, 136 F.2D 661. 

PETITIONER IS THE FATHER OF HERBERT HAUPT, ONE OF THE EIGHT SABOTEURS
CONVICTED BY A MILITARY TRIBUNAL.  SEE EX PARTE QUIRIN, 317 U.S. 1. 
SHELTERING HIS SON, ASSISTING HIM IN GETTING A JOB, AND IN ACQUIRING AN
AUTOMOBILE, ALL ALLEGED TO BE WITH KNOWLEDGE OF THE SON'S MISSION,
INVOLVED DEFENDANT IN THE TREASON CHARGE. 

THE BACKGROUND FACTS ARE NOT IN DISPUTE.  THE DEFENDANT IS A
NATURALIZED CITIZEN, BORN IN GERMANY.  HE CAME TO THIS COUNTRY IN 1923
AND LIVED IN OR NEAR CHICAGO.  IN 1939 THE SON, HERBERT, WHO HAD ALSO
BEEN BORN IN GERMANY, WORKED FOR THE SIMPSON OPTICAL COMPANY IN CHICAGO
WHICH MANUFACTURED LENSES FOR INSTRUMENTS, INCLUDING PARTS FOR THE
NORDEN BOMB SIGHT.  IN THE SPRING OF 1941 HERBERT WENT TO MEXICO AND,
WITH THE AID OF THE GERMAN CONSUL, FROM THERE TO JAPAN AND THENCE TO
GERMANY WHERE HE ENTERED THE EMPLOY OF THE GERMAN GOVERNMENT AND WAS
TRAINED IN SABOTAGE WORK. 

ON THE 17TH OF JUNE 1942, HERBERT RETURNED TO THE UNITED STATES BY
SUBMARINE.  HIS MISSION WAS TO ACT AS A SECRET AGENT, SPY AND SABOTEUR
FOR THE GERMAN REICH.  HE WAS INSTRUCTED TO PROCEED TO CHICAGO, TO
PROCURE AN AUTOMOBILE FOR THE USE OF HIMSELF AND HIS CONFEDERATES IN
THEIR WORK OF SABOTAGE AND ESPIONAGE, TO OBTAIN REEMPLOYMENT WITH THE
SIMPSON OPTICAL COMPANY WHERE HE WAS TO GATHER INFORMATION,
PARTICULARLY AS TO THE VITAL PARTS AND BOTTLENECKS OF THE PLANT, TO BE
COMMUNICATED TO HIS COCONSPIRATORS TO GUIDE THEIR ATTACK.  HE CAME WITH
VARIOUS OTHER INSTRUCTIONS, EQUIPPED WITH LARGE SUMS OF MONEY, AND WENT
TO CHICAGO. 

AFTER SOME SIX DAYS THERE, HERBERT WAS ARRESTED ON JUNE 27, 1942,
HAVING BEEN UNDER SURVEILLANCE BY GOVERNMENT AGENTS DURING HIS ENTIRE
STAY IN CHICAGO.  THIS PETITIONER WAS THEREAFTER TAKEN INTO CUSTODY AND
WAS ARRAIGNED ON JULY 21, 1942.  HE LATER ASKED TO TALK TO AN F.B.I.
AGENT, TWO OF WHOM WERE SUMMONED, AND HE APPEARS TO HAVE VOLUNTEERED
CONSIDERABLE INFORMATION AND TO HAVE GIVEN MORE IN ANSWER TO THEIR
QUESTIONS.  HE BLAMED CERTAIN OTHERS FOR THE PREDICAMENT OF HIS SON AND
WANTED TO TESTIFY AGAINST THEM.  FOR THIS PURPOSE, HE DISCLOSED THAT HE
HAD BEEN PRESENT WHEN HERBERT HAD TOLD THE COMPLETE STORY OF HIS TRIP
TO MEXICO, JAPAN, HIS RETURN TO THE UNITED STATES BY SUBMARINE, AND HIS
BRINGING LARGE SUMS OF MONEY WITH HIM.  DURING HIS CONFINEMENT IN THE
COOK COUNTY JAIL, HE ALSO TALKED WITH TWO FELLOW PRISONERS CONCERNING
HIS CASE AND THEY TESTIFIED AS TO DAMAGING ADMISSIONS MADE TO THEM. 

THE INDICTMENT ALLEGED TWENTY-NINE OVERT ACTS OF TREASON.  ITS
SUFFICIENCY WAS CHALLENGED BY DEMURRER WHICH WAS OVERRULED AND BY A
MOTION TO QUASH WHICH WAS DENIED.  THE DEFENDANT, AT THE CLOSE OF THE
GOVERNMENT'S CASE AND AGAIN AT THE CLOSE OF ALL THE EVIDENCE, MADE
MOTIONS FOR A DIRECTED VERDICT GENERALLY AND ALSO SPECIFICALLY AS TO
EACH OVERT ACT CHARGED, ALL OF WHICH WERE DENIED.  SEVENTEEN OF THE
OVERT ACTS WERE WITHDRAWN BEFORE SUBMISSION AND TWELVE WERE SUBMITTED
TO THE JURY.  GENERALLY STATED, THE OVERT ACTS SUBMITTED FALL INTO
THREE GROUPS OF CHARGES:  FIRST, THE CHARGE THAT THIS DEFENDANT
ACCOMPANIED HIS SON TO ASSIST HIM IN OBTAINING EMPLOYMENT IN A PLANT
ENGAGED IN MANUFACTURING THE NORDEN BOMB SIGHT; SECOND, THE CHARGE OF
HARBORING AND SHELTERING HERBERT HAUPT; AND THIRD, THE CHARGE OF
ACCOMPANYING HERBERT TO AN AUTOMOBILE SALES AGENCY, ARRANGING, MAKING
PAYMENT FOR AND PURCHASING AN AUTOMOBILE FOR HERBERT.  EACH OF THESE
WAS ALLEGED TO BE IN AID OF HERBERT'S KNOWN PURPOSE OF SABOTAGE. 

THE DEFENDANT ARGUES HERE THAT THE OVERT ACTS SUBMITTED DO NOT
CONSTITUTE ACTS OF TREASON, BUT THAT EACH IS COMMONPLACE, INSIGNIFICANT
AND COLORLESS, AND NOT SUFFICIENT, EVEN IF PROPERLY PROVED, TO SUPPORT
A CONVICTION.  WE HAVE HELD THAT THE MINIMUM FUNCTION OF THE OVERT ACT
IN A TREASON PROSECUTION IS THAT IT SHOW ACTION BY THE ACCUSED WHICH
REALLY WAS AID AND COMFORT TO THE ENEMY.  CRAMER V. UNITED STATES, 325
U.S. 1, 34.  THIS IS A SEPARATE INQUIRY FROM THAT AS TO WHETHER THE
ACTS WERE DONE BECAUSE OF ADHERENCE TO THE ENEMY, FOR ACTS HELPFUL TO
THE ENEMY MAY NEVERTHELESS BE INNOCENT OF TREASONABLE CHARACTER. 

CRAMER'S CASE HELD THAT WHAT MUST BE PROVED BY THE TESTIMONY OF TWO
WITNESSES IS A "SUFFICIENT" OVERT ACT.  THERE THE ONLY PROOF BY TWO
WITNESSES OF TWO OF THE THREE OVERT ACTS SUBMITTED TO THE JURY WAS THAT
THE DEFENDANT HAD MET AND TALKED WITH ENEMY AGENTS.  WE DID NOT SET
ASIDE CRAMER'S CONVICTION BECAUSE TWO WITNESSES DID NOT TESTIFY TO THE
TREASONABLE CHARACTER OF HIS MEETING WITH THE ENEMY AGENTS.  IT WAS
REVERSED BECAUSE THE COURT FOUND THAT THE ACT WHICH TWO WITNESSES SAW
COULD NOT ON THEIR TESTIMONY BE SAID TO HAVE GIVEN ASSISTANCE OR
COMFORT TO ANYONE, WHETHER IT WAS DONE TREACHEROUSLY OR NOT.  TO MAKE A
SUFFICIENT OVERT ACT, THE COURT THOUGHT IT WOULD HAVE BEEN NECESSARY TO
ASSUME THAT THE MEETING OR TALK WAS OF ASSISTANCE TO THE ENEMY, OR TO
RELY ON OTHER THAN TWO-WITNESS PROOF.  HERE, ON THE CONTRARY, SUCH
ASSUMPTION OR RELIANCE IS UNNECESSARY - THERE CAN BE NO QUESTION THAT
SHELTERING, OR HELPING TO BUY A CAR, OR HELPING TO GET EMPLOYMENT IS
HELPFUL TO AN ENEMY AGENT, THAT THEY WERE OF AID AND COMFORT TO HERBERT
HAUPT IN HIS MISSION OF SABOTAGE.  THEY HAVE THE UNMISTAKABLE QUALITY
WHICH WAS FOUND LACKING IN THE CRAMER CASE OF FORWARDING THE SABOTEUR
IN HIS MISSION.  WE POINTED OUT THAT CRAMER FURNISHED NO SHELTER,
SUSTENANCE OR SUPPLIES.  325 U.S. 1, 37.  THE OVERT ACTS CHARGED HERE,
ON THE CONTRARY, MAY BE GENERALIZED AS FURNISHING HARBOR AND SHELTER
FOR A PERIOD OF SIX DAYS, ASSISTING IN OBTAINING EMPLOYMENT IN THE LENS
PLANT AND HELPING TO BUY AN AUTOMOBILE.  NO MATTER WHETHER YOUNG
HAUPT'S MISSION WAS BENIGN OR TRAITOROUS, KNOWN OR UNKNOWN TO
DEFENDANT, THESE ACTS WERE AID AND COMFORT TO HIM.  IN THE LIGHT OF HIS
MISSION AND HIS INSTRUCTIONS, THEY WERE MORE THAN CASUALLY USEFUL; THEY
WERE AID IN STEPS ESSENTIAL TO HIS DESIGN FOR TREASON.  IF PROOF BE
ADDED THAT THE DEFENDANT KNEW OF HIS SON'S INSTRUCTIONS, PREPARATION
AND PLANS, THE PURPOSE TO AID AND COMFORT THE ENEMY BECOMES CLEAR.  ALL
OF THIS, OF COURSE, ASSUMES THAT THE PROSECUTION'S EVIDENCE PROPERLY IN
THE CASE IS CREDITED, AS THE JURY HAD A RIGHT TO DO.  WE HOLD,
THEREFORE, THAT THE OVERT ACTS LAID IN THE INDICTMENT AND SUBMITTED TO
THE JURY DO PERFORM THE FUNCTIONS ASSIGNED TO OVERT ACTS IN TREASON
CASES AND ARE SUFFICIENT TO SUPPORT THE INDICTMENT AND TO SUSTAIN THE
CONVICTION IF THEY WERE PROVED WITH THE EXACTITUDE REQUIRED BY THE
CONSTITUTION. 

THE MOST DIFFICULT ISSUE IN THIS CASE IS WHETHER THE OVERT ACTS HAVE
BEEN PROVED AS THE CONSTITUTION REQUIRES, AND SEVERAL GROUNDS OF ATTACK
ON THE CONVICTION DISAPPEAR IF THERE HAS BEEN COMPLIANCE WITH THE
CONSTITUTIONAL STANDARD OF PROOF.  THE CONSTITUTION REQUIRES THAT "NO
PERSON SHALL BE CONVICTED OF TREASON UNLESS ON THE TESTIMONY OF TWO
WITNESSES TO THE SAME OVERT ACT  ..."  ART. III, SEC. 3.  WE CONSIDERED
THE APPLICATION OF THIS PROVISION TO THE PROBLEMS OF PROOF IN THE
CRAMER CASE.  DEFENDANT CLAIMS THIS CASE IN TWO RESPECTS FALLS SHORT OF
THE REQUIREMENTS THERE LAID DOWN AS TO ALL THE OVERT ACTS WHICH
COMPRISE HARBORING AND SHELTERING THE SABOTEUR:  FIRST, THAT THERE WAS
NO DIRECT PROOF THAT THE SABOTEUR WAS ACTUALLY IN THE DEFENDANT'S
APARTMENT, AND SECOND, THAT THERE IS NO DIRECT PROOF THAT THE DEFENDANT
WAS IN THE APARTMENT AT ANY TIME WHEN THE SABOTEUR WAS THERE.  BOTH OF
THESE WE FIND TO BE WITHOUT MERIT. 

THE ACT TO BE PROVED IS HARBORING AND SHELTERING IN THE HOUSE AT NO.
2234 NORTH FREMONT STREET.  THE DEFENDANT AND HIS WIFE LIVED THERE IN A
THIRD-FLOOR FRONT APARTMENT, WHICH HAD BUT ONE BEDROOM.  FEDERAL BUREAU
OF INVESTIGATION AGENTS, NEVER LESS THAN TWO, HAD THE PLACE UNDER
CONTINUOUS SURVEILLANCE FROM 10:30 A.M., JUNE 22 TO THE ARREST OF THE
SABOTEUR ON JUNE 27, AND AT LEAST TWO TESTIFIED IN MINUTE DETAIL TO
EACH OF REPEATED ARRIVALS AND DEPARTURES OF THE SABOTEUR, ON SOME
OCCASIONS ACCOMPAINED BY THE DEFENDANT, ON OTHERS BY THE DEFENDANT'S
WIFE, AND ON SOME BY BOTH.  HE ENTERED EACH NIGHT AND LEFT EACH DAY. 
ON SOME OCCASIONS HE CAME OUT WEARING DIFFERENT CLOTHES FROM THOSE HE
WORE WHEN HE WENT IN.  WHEN HE WENT IN AT NIGHT THE LIGHTS IN THE
DEFENDANT'S APARTMENT WERE TURNED ON AND AFTER A TIME EXTINGUISHED. 
TWO WITNESSES WHO WERE CALLERS AT THE APARTMENT TESTIFIED THAT ON ONE
OCCASION DEFENDANT AND HERBERT WERE THERE TOGETHER AT SUPPER TIME, THE
THREE HAUPTS BEING TOGETHER IN THE KITCHEN, HERBERT LATER COMING INTO
THE PARLOR AND ONE OF THE GUESTS GOING INTO THE KITCHEN.  THE DEFENDANT
CONTENDS THAT THIS DOES NOT CONSTITUTE THE REQUIRED TWO WITNESSES'
DIRECT PROOF THAT THE SABOTEUR WAS HARBORED AND SHELTERED IN THE
DEFENDANT'S APARTMENT.  IT IS TRUE THAT THE FRONT ENTRANCE, WHERE ALL
OF THIS TESTIMONY SHOWS THE SABOTEUR TO HAVE ENTERED, CONNECTED WITH
TWO OTHER APARTMENTS.  THE OCCUPANTS OF EACH OF THE OTHER APARTMENTS,
TWO WITNESSES AS TO EACH, TESTIFIED THAT THE SABOTEUR DID NOT AT ANY
TIME OCCUPY THEIR RESPECTIVE APARTMENTS. 

IT IS SUFFICIENTLY PROVED BY DIRECT TESTIMONY OF TWO WITNESSES THAT
THE SABOTEUR STAYED IN THE HOUSE WHERE THE FATHER LIVED AND WITH THE
LATTER'S KNOWLEDGE.  BUT IT IS SAID THAT THIS IS NOT ENOUGH, THAT IT
FAILS BECAUSE THE TWO WITNESSES DID NOT SEE HIM ENTER HIS PARENTS'
APARTMENT THEREIN.  BUT THE HOSPITALITY AND HARBORING DID NOT BEGIN
ONLY AT THE APARTMENT DOOR.  IT BEGAN WHEN HE ENTERED THE BUILDING
ITSELF WHERE HE WOULD HAVE NO BUSINESS EXCEPT AS A GUEST OR MEMBER OF
THE FAMILY OF ONE OF THE TENANTS.  IT IS NOT NECESSARY TO SHOW THAT HE
SLEPT IN THE DEFENDANT'S BED.  HERBERT WAS NEITHER TRESPASSER NOR
LOITERER.  HE ENTERED AS THE LICENSEE OF HIS FATHER, AND WAS UNDER THE
PRIVILEGES OF THE LATTER'S TENANCY EVEN IN PARTS OF THE BUILDING USED
IN COMMON WITH OTHER TENANTS.  HIS ENTRANCE TO AND SOJOURN IN THE
BUILDING WERE MADE POSSIBLE BY THE DEFENDANT, AND THE SABOTEUR SLEPT
AND STAYED IN SOME PART OF IT WITH THE FATHER'S KNOWLEDGE AND BY HIS
LEAVE.  WE THINK THE PROOF IS SUFFICIENT TO COMPLY WITH THE
CONSTITUTIONAL REQUIREMENT THAT TWO WITNESSES TESTIFY TO THE OVERT ACTS
IN THAT GROUP WHICH CHARGES HARBORING AND SHELTERING OF THE SABOTEUR. 

THE OTHER GROUP OF SUBMITTED OVERT ACTS AS TO WHICH IT IS CLAIMED
THERE IS A DEFICIENCY OF TESTIMONY RELATES TO ASSISTANCE WHICH THE
DEFENDANT RENDERED TO THE SABOTEUR IN PURCHASING AN AUTOMOBILE AS
ALLEGED IN ACTS NOS. 15 AND 16 OF THE INDICTMENT.  ACCORDING TO THE
TESTIMONY OF AN AUTOMOBILE SALESMAN, FARRELL, THE DEFENDANT CAME TO HIS
SALESROOM AND SAID HE WANTED TO BUY A GOOD USED CAR OF LATE MODEL. 
DEFENDANT SELECTED A 1941 MODEL PONTIAC AND ASKED ABOUT INSTALLMENT
PAYMENTS.  AFTER CONSIDERABLE DISCUSSION OF TERMS, DEFENDANT PAID $10
DEPOSIT ON THE PRICE OF $1045 AND SAID HE WOULD COME IN NEXT DAY TO
MAKE A FURTHER PAYMENT.  HE SIGNED AN ORDER FOR THE CAR AND GAVE
FINANCIAL REFERENCES.  ON THE NEXT DAY, DEFENDANT CAME TO THE SALESROOM
AND PAID AN ADDITIONAL $405, EXECUTING NOTES AND FINANCE CONTRACT.  THE
SON TOOK THE CAR AND DROVE IT AWAY. 

A SECOND WITNESS, VINSON, SALES MANAGER, CORROBORATED THE EARLIER
PARTS OF THIS TRANSACTION, BUT DEFENDANT CLAIMS HIS TESTIMONY IS NOT
SUFFICIENTLY COMPREHENSIVE TO COMPLY WITH THE TWO-WITNESS RULE,
ESPECIALLY AS TO OVERT ACTS 15 AND 16, RELATING TO EVENTS OF THE SECOND
DAY.  VINSON AT FIRST SAID HE DID NOT SEE DEFENDANT AND HIS SON ON THAT
DAY.  THE TRIAL COURT ALLOWED COUNSEL TO REFRESH VINSON'S RECOLLECTION
FROM HIS TESTIMONY GIVEN AT THE FORMER TRIAL OF DEFENDANT.  VINSON THEN
TESTIFIED THAT HE DID SEE THE DEFENDANT AND HIS SON COME IN TOGETHER
AND BE TOGETHER IN THE SALESROOM THAT EVENING BUT DID NOT TALK WITH
THEM; THAT HE RECEIVED "THE MONEY THAT HAD BEEN PUT DOWN" ON THAT
EVENING AND THE NOTE SIGNED BY THE DEFENDANT.  BY APPROVAL OF HIS
ANSWERS AT THE FORMER TRIAL HE AFFIRMED THAT HE RECEIPTED FOR THE
MONEY.  HE ALSO SAW THE INVOICE MADE THAT EVENING FOR THE PURCHASE AND
IDENTIFIED A COPY OF THE BILL OF SALE OF THE CAR TO THE DEFENDANT.  HE
TESTIFIED FARRELL WAS THERE WHEN THE HAUPTS WERE. 

IT IS SAID THAT VINSON'S TESTIMONY FALLS SHORT BECAUSE IT IS NOT
EXPLICIT AS TO WHO PAID THE MONEY.  TAKING THE TESTIMONY AS A WHOLE,
VINSON HAS CORROBORATED FARRELL'S TESTIMONY THAT THE DEFENDANT CAME
THAT NIGHT TO THE AUTOMOBILE SALESROOM, THAT HE WAS ACCOMPANIED BY THE
SABOTEUR, THAT A PURCHASE OF THE AUTOMOBILE HAD BEEN STARTED AND WAS
PENDING.  THE PARTIALLY COMPLETED TRANSACTION WAS ONE IN WHICH
DEFENDANT HIMSELF BECAME PURCHASER, SIGNED HIS OWN NAME TO THE PURCHASE
NOTE AND FURNISHED HIS OWN, NOT HIS SON'S, FINANCIAL REFERENCES. 
VINSON'S TESTIMONY SHOWS THAT THIS PENDING TRANSACTION WAS CONSUMMATED
ON THE LATTER NIGHT.  IT INVOLVED "A FURTHER PAYMENT IN CASH TOWARD THE
PURCHASE" AND COMPLETING "ARRANGEMENTS FOR THE PURCHASE" WHICH ARE
ALLEGED AS THE SIXTEENTH ACT.  VINSON SAID THAT HE RECEIVED THE MONEY. 
WHOEVER ACTUALLY HANDED OVER THE MONEY, IT WAS APPARENTLY IN
DEFENDANT'S PRESENCE AND WAS PAID ON ACCOUNT OF HIS OBLIGATION INCURRED
THE PREVIOUS EVENING IN SIGNING THE PURCHASE CONTRACT. 

THE TESTIMONY OF VINSON IN ITS INTERPRETATION MOST FAVORABLE TO THE
JURY'S VERDICT SEEMS CLEARLY TO HAVE BEEN TESTIMONY TO THE SAME OVERT
ACT AS THAT BY FARRELL.  DEFENDANT'S COUNSEL MADE NO EFFORT TO CORRECT
ANY AMBIGUITY IN IT BY CROSS-EXAMINATION.  THE DEFENSE OF COURSE IS
UNDER NO DUTY TO DO SO; IT MAY RELY UPON WEAKNESS IN THE PROSECUTION'S
CASE.  BUT IT TAKES THE RISK, WHEN IT RELIES ON AN AMBIGUITY RATHER
THAN ON A COMPLETE LACK OF LEGAL PROOF, THAT THE JURY WILL RESOLVE THE
MEANING IN FAVOR OF THE PROSECUTION.  WHEN ENOUGH HAS BEEN SHOWN TO
MAKE A CASE FOR THE JURY, WE MAY NOT IMPEACH THE VERDICT BY DIFFERING
FROM THEM ON EQUALLY REASONABLE VIEWS OF A WITNESS' MEANING.  WE THINK
THE COURT WAS JUSTIFIED IN SUBMITTING THIS OVERT ACT AND THE JURY WAS
JUSTIFIED IN FINDING IT PROVED. 

THE CONSTITUTION REQUIRES TESTIMONY TO THE ALLEGED OVERT ACT AND IS
NOT SATISFIED BY TESTIMONY TO SOME SEPARATE ACT FROM WHICH IT CAN BE
INFERRED THAT THE CHARGED ACT TOOK PLACE.  AND WHILE TWO WITNESSES MUST
TESTIFY TO THE SAME ACT, IT IS NOT REQUIRED THAT THEIR TESTIMONY BE
IDENTICAL.  MOST OVERT ACTS ARE NOT SINGLE, SEPARABLE ACTS, BUT ARE
COMBINATIONS OF ACTS OR COURSES OF CONDUCT MADE UP OF SEVERAL
ELEMENTS.  IT IS NOT EASY TO SET BY METES AND BOUNDS THE PERMISSIBLE
LATITUDE BETWEEN THE TESTIMONY OF THE TWO REQUIRED WITNESSES.  IT IS
PERHAPS EASIER TO SAY ON WHICH SIDE OF THE LINE A GIVEN CASE BELONGS
THAN TO DRAW A LINE THAT WILL SEPARATE ALL PERMISSIBLE DISPARITIES FROM
FORBIDDEN ONES.  CONCRETE EVEN IF HYPOTHETICAL CASES MAY ILLUSTRATE
THIS. 

ONE WITNESS MIGHT HEAR A REPORT, SEE A SMOKING GUN IN THE HAND OF
DEFENDANT AND SEE THE VICTIM FALL.  ANOTHER MIGHT BE DEAF, BUT SEE THE
DEFENDANT RAISE AND POINT THE GUN, AND SEE A PUFF OF SMOKE FROM IT.
THE TESTIMONY OF BOTH WOULD CERTAINLY BE "TO THE SAME OVERT ACT,"
ALTHOUGH TO DIFFERENT ASPECTS.  AND EACH WOULD BE TO THE OVERT ACT OF
SHOOTING, ALTHOUGH NEITHER SAW THE MOVEMENT OF A BULLET FROM THE GUN TO
THE VICTIM.  IT WOULD STILL BE A REMOTE POSSIBILITY THAT THE GUN
CONTAINED ONLY A BLANK CARTRIDGE AND THE VICTIM FELL OF HEART FAILURE. 
BUT IT IS NOT REQUIRED THAT TESTIMONY BE SO MINUTE AS TO EXCLUDE EVERY
FANTASTIC HYPOTHESIS THAT CAN BE SUGGESTED. 

WE THINK TWO WITNESSES TESTIFIED TO THESE OVERT ACTS AND PETITIONER
CANNOT SERIOUSLY CONTEND THAT TWO DID NOT TESTIFY TO EACH OF THE OVERT
ACTS COMPRISING THE GROUP OF CHARGES ON OBTAINING A JOB.  SINCE THIS
WAS THE CONSTITUTIONAL MEASURE OF EVIDENCE AS TO EACH OVERT ACT
SUBMITTED TO THE JURY, WE DO NOT REACH THE QUESTION WHETHER THE
CONVICTION COULD STAND ON SOME SUFFICIENTLY PROVEN ACTS IF OTHERS
FAILED IN PROOF.  FN1 

IT IS URGED THAT THE CONVICTION CANNOT BE SUSTAINED BECAUSE THERE IS
NO SUFFICIENT PROOF OF ADHERENCE TO THE ENEMY, THE ACTS OF AID AND
COMFORT BEING NATURAL ACTS OF AID FOR DEFENDANT'S OWN SON.  CERTAINLY
THAT RELATIONSHIP IS A FACT FOR THE JURY TO WEIGH ALONG WITH OTHERS,
AND THEY WERE CORRECTLY INSTRUCTED THAT IF THEY FOUND THAT DEFENDANT'S
INTENTION WAS NOT TO INJURE THE UNITED STATES BUT MERELY TO AID HIS SON
"AS AN INDIVIDUAL, AS DISTINGUISHED FROM ASSISTING HIM IN HIS PURPOSES,
IF SUCH EXISTED, OF AIDING THE GERMAN REICH, OR OF INJURING THE UNITED
STATES, THE DEFENDANT MUST BE FOUND NOT GUILTY."  THE DEFENDANT CAN
COMPLAIN OF NO ERROR IN SUCH A SUBMISSION.  IT WAS FOR THE JURY TO
WEIGH THE EVIDENCE THAT THE ACTS PROCEEDED FROM PARENTAL SOLICITUDE
AGAINST THE EVIDENCE OF ADHERENCE TO THE GERMAN CAUSE.  IT IS ARGUED
THAT HAUPT MERELY HAD THE MISFORTUNE TO SIRE A TRAITOR AND ALL HE DID
WAS TO ACT AS AN INDULGENT FATHER TOWARD A DISLOYAL SON.  IN VIEW
HOWEVER OF THE EVIDENCE OF DEFENDANT'S OWN STATEMENTS THAT AFTER THE
WAR HE INTENDED TO RETURN TO GERMANY, THAT THE UNITED STATES WAS GOING
TO BE DEFEATED, THAT HE WOULD NEVER PERMIT HIS BOY TO JOIN THE AMERICAN
ARMY, THAT HE WOULD KILL HIS SON BEFORE HE WOULD SEND HIM TO FIGHT
GERMANY, AND OTHERS TO THE SAME EFFECT, THE JURY APPARENTLY CONCLUDED
THAT THE SON HAD THE MISFORTUNE OF BEING A CHIP OFF THE OLD BLOCK - A
TREE INCLINED AS THE TWIG HAD BEEN BENT - METAPHORS WHICH EXPRESS THE
COMMON SENSE OBSERVATION THAT PARENTS ARE AS LIKELY TO INFLUENCE THE
CHARACTER OF THEIR CHILDREN AS ARE CHILDREN TO SHAPE THAT OF THEIR
PARENTS.  SUCH ARGUMENTS ARE FOR THE JURY TO DECIDE. 

IT IS ALSO URGED THAT ERRORS WERE MADE IN ADMISSION OF EVIDENCE. 
SOME OF THIS CONCERNED CONVERSATIONS AND OCCURRENCES LONG PRIOR TO THE
INDICTMENT WHICH WERE ADMITTED TO PROVE INTENT.  THEY CONSISTED OF
STATEMENTS SHOWING SYMPATHY WITH GERMANY AND WITH HITLER AND HOSTILITY
TO THE UNITED STATES.  SUCH TESTIMONY IS TO BE SCRUTINIZED WITH CARE TO
BE CERTAIN THE STATEMENTS ARE NOT EXPRESSIONS OF MERE LAWFUL AND
PERMISSIBLE DIFFERENCE OF OPINION WITH OUR OWN GOVERNMENT OR QUITE
PROPER APPRECIATION OF THE LAND OF BIRTH.  BUT THESE STATEMENTS WERE
EXPLICIT AND CLEARLY WERE ADMISSIBLE ON THE QUESTION OF INTENT AND
ADHERENCE TO THE ENEMY.  THEIR WEIGHT WAS FOR THE JURY. 

EVIDENCE OF F.B.I. AGENTS AND OF DEFENDANT'S FELLOW PRISONERS AS TO
CONVERSATIONS IS ALSO SAID TO BE INADMISSIBLE.  THE CONSTITUTION
REQUIRES THAT "NO PERSON SHALL BE CONVICTED OF TREASON UNLESS ON THE
TESTIMONY OF TWO WITNESSES TO THE SAME OVERT ACT, OR ON CONFESSION IN
OPEN COURT."  IT IS CLAIMED THAT THE STATEMENTS OF DEFENDANT WERE
CONFESSIONS, AND AS THEY WERE NOT MADE IN OPEN COURT WERE INADMISSIBLE
AS EVIDENCE.  IF THERE WERE NOT THE REQUIRED TWO-WITNESS TESTIMONY AND
IT WAS SOUGHT TO SUPPLY THAT DEFECT BY CONFESSION, WE WOULD HAVE A
DIFFERENT QUESTION.  BUT HAVING FOUND THE LEGAL BASIS FOR THE
CONVICTION LAID BY THE TESTIMONY OF TWO WITNESSES, WE FIND NOTHING IN
THE TEXT OR POLICY OF THE CONSTITUTION TO PRECLUDE USING OUT-OF-COURT
ADMISSIONS OR CONFESSIONS. 

IT MAY BE DOUBTED WHETHER THE CONSTITUTIONAL REFERENCE TO CONFESSION
IN OPEN COURT HAS APPLICATION TO ANY ADMISSION OF A FACT OTHER THAN A
COMPLETE CONFESSION TO GUILT OF THE CRIME.  THE STATEMENTS OF DEFENDANT
DID NOT GO SO FAR.  THEY WERE ADMISSIONS OF SPECIFIC ACTS AND KNOWLEDGE
AS TO WHICH, INSOFAR AS THEY WERE OVERT ACTS CHARGED, THE REQUIRED TWO
WITNESSES ALSO TESTIFIED.  THERE HAS BEEN NO ATTEMPT TO CONVICT HERE ON
SUCH ADMISSIONS ALONE, OR TO USE THE ADMISSIONS TO SUPPLY DEFECTS IN
THE CONSTITUTIONAL MEASURE OF PROOF.  IF SUCH AN ATTEMPT WERE MADE WE
WOULD BE FACED WITH A NOVEL QUESTION.  BUT HERE THE ADMISSIONS ARE
MERELY CORROBORATIVE OF A LEGAL BASIS LAID BY TESTIMONY AND THE
CONSTITUTION DOES NOT PRECLUDE USING OUT-OF-COURT ADMISSIONS OR
CONFESSIONS IN THIS WAY.  CF. RESPUBLICA V. ROBERTS, 1 DALL.  39; CASE
OF FRIES, FED. CASE NO. 5126, 9 FED. CAS. 826, 909. 

THERE ARE MANY OTHER COMPLAINTS ABOUT THE CONDUCT OF THE TRIAL, SUCH
AS PERMITTING THE INDICTMENT TO GO TO THE JURY ROOM, ALLOWING THE JURY
TO HAVE A TYPEWRITTEN COPY OF THE COURT'S CHARGE, HOLDING THE JURY
TOGETHER FOR A LONG TIME, READING THE TESTIMONY OF CERTAIN WITNESSES TO
THE JURY AT ITS REQUEST AND FAILING TO ORDER A SPECIAL VERDICT.  WE
FIND NOTHING IN ANY OF THEM TO WARRANT THE INFERENCE OF UNFAIRNESS OR
IRREGULARITY IN THE TRIAL.  IT IS ALSO CLAIMED THAT THE PROSECUTION
MADE IMPROPER APPEALS TO PASSION.  UNFORTUNATELY IT IS THE NATURE OF
THE CHARGE OF BETRAYAL THAT IT EASILY STIRS FEELINGS, AND THAT IS ONE
OF THE REASONS SUCH SAFEGUARDS HAVE BEEN THROWN AROUND ITS TRIAL.  BUT
WE FIND NO SUCH CONDUCT AS WOULD INVALIDATE THE CONVICTION. 

HAUPT HAS BEEN TWICE TRIED AND TWICE FOUND GUILTY.  THE LAW OF
TREASON MAKES, AND PROPERLY MAKES, CONVICTION DIFFICULT BUT NOT
IMPOSSIBLE.  HIS ACTS AIDED AN ENEMY OF THE UNITED STATES TOWARD
ACCOMPLISHING HIS MISSION OF SABOTAGE.  THE MISSION WAS FRUSTRATED BUT
DEFENDANT DID HIS BEST TO MAKE IT SUCCEED.  HIS OVERT ACTS WERE PROVED
IN COMPLIANCE WITH THE HARD TEST OF THE CONSTITUTION, ARE HARDLY
DENIED, AND THE PROOF LEAVES NO REASONABLE DOUBT OF THE GUILT. 

THE JUDGMENT IS AFFIRMED. 

FN1  WHEN, SPEAKING OF A GENERAL VERDICT OF GUILTY IN CRAMER V.
UNITED STATES, 325 U.S. 1, 36, N. 45, WE SAID "SINCE IT IS NOT POSSIBLE
TO IDENTIFY THE GROUNDS ON WHICH CRAMER WAS CONVICTED, THE VERDICT MUST
BE SET ASIDE IF ANY OF THE SEPARABLE ACTS SUBMITTED WAS INSUFFICIENT,"
OF COURSE WE DID NOT HOLD THAT ONE OVERT ACT PROPERLY PROVED AND
SUBMITTED WOULD NOT SUSTAIN A CONVICTION IF THE PROOF OF OTHER OVERT
ACTS WAS INSUFFICIENT.  ONE SUCH ACT MAY PROVE TREASON, AND ON REVIEW
THE CONVICTION WOULD BE SUSTAINED, PROVIDED THE RECORD MAKES CLEAR THAT
THE JURY CONVICTED ON THAT OVERT ACT.  BUT WHERE SEVERAL ACTS ARE
PLEADED IN A SINGLE COUNT AND SUBMITTED TO THE JURY, UNDER INSTRUCTIONS
WHICH ALLOW A VERDICT OF GUILTY ON ANY ONE OR MORE OF SUCH ACTS, A
REVIEWING COURT HAS NO WAY OF KNOWING THAT ANY WRONGLY SUBMITTED ACT
WAS NOT THE ONE CONVICTED UPON.  IF ACTS WERE PLEADED IN SEPARATE
COUNTS, OR A SPECIAL VERDICT WERE REQUIRED AS TO EACH OVERT ACT OF A
SINGLE COUNT, THE CONVICTION COULD BE SUSTAINED ON A SINGLE WELL-PROVED
ACT.  AS THE ACTS WERE HERE PLEADED IN A SINGLE COUNT, AND THE JURY
WERE INSTRUCTED THAT THEY COULD CONVICT ON ANY ONE, WE WOULD HAVE TO
REVERSE IF ANY ACT WERE INSUFFICIENT OR INSUFFICIENTLY PROVED.  CF.
STROMBERG V. CALIFORNIA, 283 U.S. 359, 368; WILLIAMS V. NORTH CAROLINA,
317 U.S. 287, 292, AND CRAMER V. UNITED STATES, SUPRA. 

MR. JUSTICE DOUGLAS. 

THERE IS A CLOSE PARALLEL BETWEEN THIS CASE AND CRAMER V. UNITED
STATES, 325 U.S. 1. 

TWO WITNESSES SAW CRAMER TALKING WITH AN ENEMY AGENT.  SO FAR AS THEY
KNEW, THE CONVERSATION MAY HAVE BEEN WHOLLY INNOCENT, AS THEY DID NOT
OVERHEAR IT.  BUT CRAMER, BY HIS OWN TESTIMONY AT THE TRIAL, EXPLAINED
WHAT TOOK PLACE:  HE KNEW OR HAD REASON TO BELIEVE THAT THE AGENT WAS
HERE ON A MISSION FOR THE ENEMY AND ARRANGED, AMONG OTHER THINGS, TO
CONCEAL THE FUNDS BROUGHT HERE TO PROMOTE THE PROJECT.  THUS THERE WAS
THE MOST CREDIBLE EVIDENCE THAT CRAMER WAS GUILTY OF "ADHERING" TO THE
ENEMY, GIVING HIM "AID AND COMFORT."  ARTICLE III, SEC. 3 OF THE
CONSTITUTION.  AND THE OVERT ACT WHICH JOINED HIM WITH THE ENEMY AGENT
WAS PROVED BY TWO WITNESSES.  CRAMER'S CONVICTION, HOWEVER, WAS SET
ASIDE BECAUSE TWO WITNESSES DID NOT TESTIFY TO THE TREASONABLE
CHARACTER OF CRAMER'S MEETING WITH THE ENEMY AGENT. 

TWO WITNESSES SAW THE SON ENTER HAUPT'S APARTMENT HOUSE AT NIGHT AND
LEAVE IN THE MORNING.  THAT ACT, WITHOUT MORE, WAS AS INNOCENT AS
CRAMER'S CONVERSATION WITH THE AGENT.  FOR NOTHING WOULD BE MORE
NATURAL AND NORMAL, OR MORE "COMMONPLACE" (325 U.S. P. 34), OR LESS
SUSPICIOUS, OR LESS "INCRIMINATING" (325 U.S. P. 35), THAN THE ACT OF A
FATHER OPENING THE FAMILY DOOR TO A SON.  THAT ACT RAISED, THEREFORE,
NO MORE IMPLICATION THAT THE FATHER WAS GIVING HIS SON AID AND COMFORT
IN A TREASONABLE PROJECT THAN DID THE MEETING OF THE DEFENDANT WITH THE
ENEMY AGENT IN THE CRAMER CASE.  BUT THAT ACT, WHOLLY INNOCENT ON ITS
FACE, WAS SHOWN TO BE OF A TREASONABLE CHARACTER, NOT BY THE TWO
WITNESSES, BUT BY OTHER EVIDENCE:  THAT HAUPT WAS SYMPATHETIC WITH THE
NAZI CAUSE, THAT HE KNEW THE NATURE OF HIS SON'S MISSION TO THIS
COUNTRY.  HAUPT'S CONVICTION IS SUSTAINED, THOUGH THE CONVERSION OF AN
INNOCENT APPEARING ACT INTO A TREASONABLE ACT IS NOT MADE BY TWO
WITNESSES. 

THE CONSTITUTION PROVIDES: 

"TREASON AGAINST THE UNITED STATES, SHALL CONSIST ONLY IN LEVYING WAR
AGAINST THEM, OR IN ADHERING TO THEIR ENEMIES, GIVING THEM AID AND
COMFORT.  NO PERSON SHALL BE CONVICTED OF TREASON UNLESS ON THE
TESTIMONY OF TWO WITNESSES TO THE SAME OVERT ACT, OR ON CONFESSION IN
OPEN COURT."  ARTICLE III, SEC. 3. 

AS THE CRAMER CASE MAKES PLAIN, THE OVERT ACT AND THE INTENT WITH
WHICH IT IS DONE ARE SEPARATE AND DISTINCT ELEMENTS OF THE CRIME. 
INTENT NEED NOT BE PROVED BY TWO WITNESSES BUT MAY BE INFERRED FROM ALL
THE CIRCUMSTANCES SURROUNDING THE OVERT ACT.  BUT IF TWO WITNESSES ARE
NOT REQUIRED TO PROVE TREASONABLE INTENT, TWO WITNESSES NEED NOT BE
REQUIRED TO SHOW THE TREASONABLE CHARACTER OF THE OVERT ACT.  FOR PROOF
OF TREASONABLE INTENT IN THE DOING OF THE OVERT ACT NECESSARILY
INVOLVES PROOF THAT THE ACCUSED COMMITTED THE OVERT ACT WITH THE
KNOWLEDGE OR UNDERSTANDING OF ITS TREASONABLE CHARACTER. 

THE REQUIREMENT OF AN OVERT ACT IS TO MAKE CERTAIN A TREASONABLE
PROJECT HAS MOVED FROM THE REALM OF THOUGHT INTO THE REALM OF ACTION. 
THAT REQUIREMENT IS UNDENIABLY MET IN THE PRESENT CASE, AS IT WAS IN
THE CASE OF CRAMER. 

THE CRAMER CASE DEPARTED FROM THOSE RULES WHEN IT HELD THAT "THE TWO
WITNESS PRINCIPLE IS TO INTERDICT IMPUTATION OF INCRIMINATING ACTS TO
THE ACCUSED BY CIRCUMSTANTIAL EVIDENCE OR BY THE TESTIMONY OF A SINGLE
WITNESS."  325 U.S. P. 35.  THE PRESENT DECISION IS TRUER TO THE
CONSTITUTIONAL DEFINITION OF TREASON WHEN IT FORSAKES THAT TEST AND
HOLDS THAT AN ACT, QUITE INNOCENT ON ITS FACE, DOES NOT NEED TWO
WITNESSES TO BE TRANSFORMED INTO AN INCRIMINATING ONE. 

MR. JUSTICE MURPHY, DISSENTING. 

THIS CASE GROWS OUT OF A SINGULAR SET OF CIRCUMSTANCES THAT, WHEN
COMBINED WITH THE SERIOUS NATURE OF THE ALLEGED CRIME, WARRANTS
EXTRAORDINARY SCRUTINY.  PETITIONER'S SON WAS TRIED AS A SABOTEUR
BEFORE A MILITARY TRIBUNAL, CONVICTED AND EXECUTED.  SEE EX PARTE
QUIRIN, 317 U.S. 1.  PETITIONER, HIS WIFE AND FOUR OTHERS WERE THEN
JOINTLY TRIED FOR TREASON.  ALL WERE CONVICTED, PETITIONER BEING
SENTENCED TO DEATH AND HIS WIFE TO 20 YEARS' IMPRISONMENT.  UNITED
STATES V. HAUPT, 47 F.SUPP.  832; 47 F.SUPP.  836.  THESE CONVICTIONS,
HOWEVER, WERE REVERSED UPON APPEAL.  UNITED STATES V. HAUPT, 136 F.2D
661.  PETITIONER HAS NOW BEEN RETRIED SEPARATELY FOR TREASON; AGAIN HE
HAS BEEN FOUND GUILTY, WITH THE SENTENCE BEING REDUCED TO LIFE
IMPRISONMENT AND A $10,000 FINE.  152 F.2D 771.    PETITIONER WAS
CHARGED WITH HAVING COMMITTED THREE GENERAL TYPES OF OVERT ACTS OF
TREASON:  (1) HARBORING AND SHELTERING HIS SON; (2) ASSISTING HIS SON
IN OBTAINING REEMPLOYMENT; (3) ACCOMPANYING AND ASSISTING HIS SON IN
THE PURCHASE OF AN AUTOMOBILE.  ALL OF THESE ALLEGED OVERT ACTS WERE
CONTAINED IN A SINGLE COUNT OF THE INDICTMENT AND THE JURY'S VERDICT
WAS A GENERAL ONE.  THE COURT INDICATES THAT A FATAL DEFICIENCY AS TO
ANY OF THE ALLEGED OVERT ACTS UNDER SUCH CIRCUMSTANCES INVALIDATES THE
CONVICTION.  SINCE THE ACTS RELATING TO THE HARBORING AND SHELTERING OF
PETITIONER'S SON DID NOT, IN MY OPINION, AMOUNT TO OVERT ACTS OF
TREASON, I WOULD ACCORDINGLY REVERSE THE JUDGMENT BELOW, REGARDLESS OF
THE SUFFICIENCY OF THE OTHER ACTS. 

THE HIGH CRIME OF TREASON, AS I UNDERSTAND IT, CONSISTS OF AN ACT
RENDERING AID AND COMFORT TO THE ENEMY BY ONE WHO ADHERES TO THE
ENEMY'S CAUSE.  CRAMER V. UNITED STATES, 325 U.S. 1.  THE ACT MAY BE
ONE WHICH EXTENDS MATERIAL AID; OR IT MAY BE ONE WHICH MERELY LENDS
COMFORT AND ENCOURAGEMENT.  THE ACT MAY APPEAR TO BE INNOCENT ON ITS
FACE, YET PROVE TO BE TREASONABLE IN NATURE WHEN EXAMINED IN LIGHT OF
ITS PURPOSE AND CONTEXT. 

IT DOES NOT FOLLOW, HOWEVER, THAT EVERY ACT THAT GIVES AID AND
COMFORT TO AN ENEMY AGENT CONSTITUTES AN OVERT ACT OF TREASON, EVEN
THOUGH THE AGENT'S STATUS IS KNOWN.  THE TOUCH OF ONE WHO AIDS IS NOT
MIDAS-LIKE, GIVING A TREASONABLE HUE TO EVERY MOVE.  AN ACT OF
ASSISTANCE MAY BE OF THE TYPE WHICH SPRINGS FROM THE WELL OF HUMAN
KINDNESS, FROM THE NATURAL DEVOTION TO FAMILY AND FRIENDS, OR FROM A
PRACTICAL APPLICATION OF RELIGIOUS TENETS.  SUCH ACTS ARE NOT
TREASONOUS, HOWEVER ELSE THEY MAY BE DESCRIBED.  THEY ARE NOT
TREASONOUS EVEN THOUGH, IN A SENSE, THEY HELP IN THE EFFECTUATION OF
THE UNLAWFUL PURPOSE.  TO RISE TO THE STATUS OF AN OVERT ACT OF
TREASON, AN ACT OF ASSISTANCE MUST BE UTTERLY INCOMPATIBLE WITH ANY OF
THE FOREGOING SOURCES OF ACTION.  IT MUST BE AN ACT WHICH IS CONSISTENT
ONLY WITH A TREASONABLE INTENTION AND WITH THE ACCOMPLISHMENT OF THE
TREASONABLE PLAN, GIVING DUE CONSIDERATION TO ALL THE RELEVANT
SURROUNDING CIRCUMSTANCES.  THUS AN ACT OF SUPPLYING A MILITARY MAP TO
A SABOTEUR FOR USE IN THE EXECUTION OF HIS NEFARIOUS PLOT IS AN OVERT
ACT OF TREASON SINCE IT EXCLUDES ALL POSSIBILITY OF HAVING BEEN
MOTIVATED BY NON-TREASONABLE CONSIDERATIONS.  BUT AN ACT OF PROVIDING A
MEAL TO AN ENEMY AGENT WHO IS ALSO ONE'S SON RETAINS THE POSSIBILITY OF
HAVING A NON-TREASONABLE BASIS EVEN WHEN PERFORMED IN A TREASONABLE
SETTING; ACCORDINGLY, IT CANNOT QUALIFY AS AN OVERT ACT OF TREASON. 

IT IS TRUE THAT REASONABLE DOUBTS MAY BE RAISED AS TO WHETHER OR NOT
THE PRIME MOTIVE FOR AN ACT WAS TREASONOUS.  YET THE NATURE OF SOME
ACTS IS SUCH THAT A NON-TREASONOUS MOTIVE CANNOT BE COMPLETELY
DISMISSED AS A POSSIBILITY.  AN OVERT ACT OF TREASON, HOWEVER, SHOULD
REST UPON SOMETHING MORE SUBSTANTIAL THAN A REASONABLE DOUBT.  TREASON
IS DIFFERENT FROM ORDINARY CRIMES, POSSESSING UNIQUE AND DIFFICULT
STANDARDS OF PROOF WHICH CONFINE IT WITHIN NARROW SPHERES.  IT HAS SUCH
SERIOUS CONNOTATIONS THAT ITS SUBSTANCE CANNOT BE LEFT TO CONJECTURE. 
ONLY WHEN THE ALLEGED OVERT ACT MANIFESTS TREASON BEYOND ALL REASONABLE
DOUBT CAN WE BE CERTAIN THAT THE TRAITOR'S STIGMA WILL BE LIMITED TO
THOSE WHOSE ACTIONS CONSTITUTE A REAL THREAT TO THE SAFETY OF THE
NATION. 

TESTED BY THAT STANDARD, THE CONVICTION IN THE INSTANT CASE CANNOT BE
SUSTAINED.  PETITIONER, IT IS SAID, HAD THE MISFORTUNE TO SIRE A
TRAITOR.  THAT SON LIVED WITH PETITIONER AND HIS WIFE IN THEIR CHICAGO
APARTMENT.  AFTER A SOJOURN IN GERMANY FOR TRAINING AS A SABOTEUR, THE
SON RETURNED TO THE CHICAGO APARTMENT AND BEGAN TO MAKE PREPARATIONS TO
CARRY OUT HIS MISSION OF SABOTAGE.  IT IS CLAIMED THAT PETITIONER KNEW
OF HIS SON'S ACTIVITIES AND DESIRED TO HELP HIM.  FOR SIX DAYS PRIOR TO
HIS ARREST, THE SON LIVED IN PETITIONER'S APARTMENT; HE WAS NOT
SECRETED IN ANY WAY, COMING AND GOING AS HE NORMALLY WOULD HAVE DONE. 

THE INDICTMENT ALLEGED THAT PETITIONER COMMITTED AN OVERT ACT OF
TREASON BY SHELTERING AND HARBORING HIS SON FOR THOSE SIX DAYS. 
CONCEDEDLY, THIS WAS A NATURAL ACT FOR A FATHER TO PERFORM; IT IS
CONSISTENT WITH PARENTAL DEVOTION FOR A FATHER TO SHELTER HIS SON,
ESPECIALLY WHEN THE SON ORDINARILY LIVES WITH THE FATHER.  BUT THE
COURT SAYS THAT THE JURY MIGHT FIND, UNDER APPROPRIATE INSTRUCTIONS,
THAT PETITIONER PROVIDED THIS SHELTER, NOT MERELY AS AN ACT OF AN
INDULGENT FATHER TOWARD A DISLOYAL SON, BUT AS AN ACT DESIGNED TO
INJURE THE UNITED STATES.  A SABOTEUR MUST BE LODGED IN A SAFE PLACE IF
HIS MISSION IS TO BE EFFECTED AND THE JURY MIGHT WELL FIND THAT
PETITIONER LODGED HIS SON FOR THAT PURPOSE. 

BUT THE ACT OF PROVIDING SHELTER WAS OF THE TYPE THAT MIGHT NATURALLY
ARISE OUT OF PETITIONER'S RELATIONSHIP TO HIS SON, AS THE COURT
RECOGNIZES.  BY ITS VERY NATURE, THEREFORE, IT IS A NON-TREASONOUS
ACT.  THAT IS TRUE EVEN WHEN THE ACT IS VIEWED IN LIGHT OF ALL THE
SURROUNDING CIRCUMSTANCES.  ALL THAT CAN BE SAID IS THAT THE PROBLEM OF
WHETHER IT WAS MOTIVATED BY TREASONOUS OR NON-TREASONOUS FACTORS IS
LEFT IN DOUBT.  IT IS THEREFORE NOT AN OVERT ACT OF TREASON, REGARDLESS
OF HOW UNLAWFUL IT MIGHT OTHERWISE BE.
..END :



LEVINSON V. SPECTOR MOTOR CO., 330 U.S. 649 


NO. 22.  ARGUED DECEMBER 11, 1945.  REARGUED OCTOBER 21, 22, 1946.  -
DECIDED MARCH 31, 1947.  - 389 ILL. 466, 59 N.E.2D 817, AFFIRMED. 


1.  THE INTERSTATE COMMERCE COMMISSION "HAS POWER," UNDER SEC. 204 OF
THE MOTOR CARRIER ACT, 1935, TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE WITH RESPECT TO A "CHECKER" OR "TERMINAL FOREMAN," A
SUBSTANTIAL PART OF WHOSE ACTIVITIES CONSISTS OF DOING, OR IMMEDIATELY
DIRECTING, THE WORK OF ONE OR MORE "LOADERS" OF FREIGHT FOR AN
INTERSTATE MOTOR CARRIER, AS SUCH CLASS OF WORK HAS BEEN DEFINED BY THE
COMMISSION AND FOUND BY IT TO AFFECT THE SAFETY OF OPERATION; AND SUCH
AN EMPLOYEE IS EXPRESSLY EXCLUDED BY SEC. 13(B)(1) OF THE FAIR LABOR
STANDARDS ACT FROM THE OVERTIME COMPENSATION REQUIREMENTS OF SEC. 7,
ALTHOUGH THE COMMISSION HAS NOT EXERCISED ITS POWER AFFIRMATIVELY BY
ESTABLISHING QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE WITH RESPECT
TO "LOADERS."  PP. 651-653, 670-685. 

2.  IN ORDER TO ESTABLISH THAT AN EMPLOYEE IS EXCLUDED BY SEC.
13(B)(1) OF THE FAIR LABOR STANDARDS ACT FROM A RIGHT TO INCREASED PAY
FOR OVERTIME SERVICES UNDER SEC. 7, IT IS NOT NECESSARY AS A CONDITION
PRECEDENT TO FIND THAT THE COMMISSION HAS EXERCISED OR SHOULD EXERCISE
ITS POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE. 
THE EXISTENCE OF THE POWER IS ENOUGH.  P. 678. 

3.  FROM THE POINT OF VIEW OF THE COMMISSION AND ITS JURISDICTION
OVER SAFETY OF OPERATION, IT IS THE CHARACTER OF AN EMPLOYEE'S
ACTIVITIES RATHER THAN THE PROPORTION OF HIS TIME OR OF HIS ACTIVITIES
THAT DETERMINES THE NEED FOR THE COMMISSION'S POWER TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE.  PP. 674-675.  (SEE ALSO
PYRAMID MOTOR FREIGHT CORP. V. ISPASS, POST, P. 695.) 

4.  FOR THE PURPOSES OF THIS CASE, IT IS ENOUGH THAT A SUBSTANTIAL
PART OF THE EMPLOYEE'S ACTIVITIES CONSISTED OF DOING, OR IMMEDIATE
DIRECTION OF, THE VERY KIND OF ACTIVITIES OF A "LOADER" WHICH THE
COMMISSION FOUND TO AFFECT SAFETY OF OPERATION - ALTHOUGH IT DOES NOT
APPEAR WHAT FRACTION OF HIS TIME WAS SPENT IN SUCH ACTIVITIES.  P.
681. 

5.  THE SCOPE OF THE POWER OF THE COMMISSION UNDER SEC. 204 TO
ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE WITH RESPECT TO
CLASSES OF EMPLOYEES OF INTERSTATE MOTOR CARRIERS DEPENDS UPON AN
INTERPRETATION OF THAT SECTION IN ACCORDANCE WITH THE PURPOSES OF THE
MOTOR CARRIER ACT AND THE REGULATIONS ISSUED PURSUANT TO IT - NOT UPON
A RESTRICTIVE INTERPRETATION OF THE EXEMPTION CREATED BY SEC. 13(B)(1)
OF THE FAIR LABOR STANDARDS ACT.  PP. 676-677. 

6.  IN RECONCILING THESE TWO ACTS, IT IS NECESSARY TO PUT SAFETY
FIRST AND TO LIMIT THE AUTHORITY OF THE WAGE AND HOUR ADMINISTRATOR TO
THOSE EMPLOYEES OF MOTOR CARRIERS WHOSE ACTIVITIES DO NOT AFFECT THE
SAFETY OF OPERATION.  P. 677. 

7. THE WAGE AND HOUR ADMINISTRATOR HAS NO AUTHORITY TO EXPAND HIS
JURISDICTION UNDER THE FAIR LABOR STANDARDS ACT BY ADMINISTRATIVE
INTERPRETATIONS WHICH REDUCE THE JURISDICTION OF THE COMMISSION UNDER
THE MOTOR CARRIER ACT.  P. 684. 

LEVINSON V. SPECTOR MOTOR SERVICE. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

AN EMPLOYEE OF AN INTERSTATE MOTOR CARRIER OBTAINED JUDGMENT IN A
STATE COURT FOR UNPAID OVERTIME COMPENSATION UNDER THE FAIR LABOR
STANDARDS ACT.  THE APPELLATE COURT OF ILLINOIS REVERSED.  323 ILL.
APP. 505, 56 N.E.2D 142.  THE SUPREME COURT OF ILLINOIS AFFIRMED.  389
ILL. 466, 59 N.E.2D 817.  THIS COURT GRANTED CERTIORARI.  326 U.S.
703.  AFFIRMED, P. 685. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER THE INTERSTATE COMMERCE
COMMISSION HAS THE POWER, UNDER SEC. 204 OF THE MOTOR CARRIER ACT,
1935,  FN1  TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE
WITH RESPECT TO ANY "CHECKER" OR "TERMINAL FOREMAN," A SUBSTANTIAL PART
OF WHOSE ACTIVITIES IN THAT CAPACITY CONSISTS OF DOING, OR IMMEDIATELY
DIRECTING, THE WORK OF ONE OR MORE "LOADERS" OF FREIGHT FOR AN
INTERSTATE MOTOR CARRIER AS SUCH CLASS OF WORK IS DEFINED BY THE
INTERSTATE COMMERCE COMMISSION IN EX PARTE NO. MC-2, 28 M.C.C. 125, 133
134,  FN2  ALTHOUGH THE REST OF HIS ACTIVITIES DO NOT AFFECT THE SAFETY
OF OPERATION OF ANY SUCH MOTOR CARRIER.  FN3 

WE HOLD THAT THE COMMISSION HAS THAT POWER AND THAT SEC. 13(B)(1) OF
THE FAIR LABOR STANDARDS ACT  FN4  THEREFORE EXPRESSLY EXCLUDES ANY
SUCH EMPLOYEE FROM A RIGHT TO THE INCREASED PAY FOR OVERTIME SERVICE
PRESCRIBED BY SEC. 7 OF THAT ACT.  FN5 

IN THIS ACTION, BROUGHT IN THE MUNICIPAL COURT OF CHICAGO, PURSUANT
TO SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT,  FN6  THE PETITIONER
RECOVERED JUDGMENT AGAINST HIS EMPLOYER, THE RESPONDENT, FOR $487.44
FOR UNPAID OVERTIME COMPENSATION FOR PETITIONER'S SERVICES, AS A
"CHECKER" OR "TERMINAL FOREMAN," COMPUTED IN ACCORDANCE WITH SEC. 7 OF
THAT ACT.  IN ADDITION, THE JUDGMENT INCLUDED $487.44, AS LIQUIDATED
DAMAGES, AND $175 AS AN ATTORNEY'S FEE, MAKING A TOTAL OF $1,149.88 AND
COSTS.  THE DEFENSE WAS THAT, UNDER SEC. 13(B)(1), THE PROVISIONS OF
SEC. 7 DID NOT APPLY TO THE PETITIONER'S SERVICE.  ON THAT GROUND, THE
JUDGMENT WAS REVERSED BY THE APPELLATE COURT OF ILLINOIS AND THE CAUSE
REMANDED WITH DIRECTIONS TO ENTER JUDGMENT, WITH COSTS, FOR THE
RESPONDENT.  323 ILL. APP. 505, 56 N.E.2D 142.  THE SUPREME COURT OF
ILLINOIS AFFIRMED.  389 ILL. 466, 59 N.E.2D 817.  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE QUESTION IN INTERPRETING THE MOTOR
CARRIER ACT AND FAIR LABOR STANDARDS ACT.  326 U.S. 703.  IT WAS ARGUED
AT THE OCTOBER TERM, 1945, OF THIS COURT AND, ON JANUARY 2, 1946, WAS
RESTORED TO THE DOCKET FOR REARGUMENT BEFORE A FULL BENCH AT THIS
TERM.  IT WAS SO ARGUED ON OCTOBER 21 AND 22, 1946.  IN ADDITION TO THE
BRIEFS AND ARGUMENTS ON BEHALF OF THE PARTIES, WE HAVE HAD THE BENEFIT
OF THOSE PRESENTED, AT OUR REQUEST, ON BEHALF OF AMICI CURIAE.  THESE
WERE FROM THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, UNITED
STATES DEPARTMENT OF LABOR, WHO SUPPORTED THE POSITION OF THE
PETITIONER, AND, ON THE OTHER HAND, FROM THE INTERSTATE COMMERCE
COMMISSION WHICH CLAIMED THAT IT POSSESSED, UNDER THE MOTOR CARRIER
ACT, THE POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE
WITH RESPECT TO THE PETITIONER.  THE SOLICITOR GENERAL, ALSO AT OUR
REQUEST, FILED A MEMORANDUM.  IN IT HE SUPPORTED THE PETITION FOR
CERTIORARI AND TOOK WHAT HE HAS DESCRIBED AS "A POSITION SOMEWHAT
BETWEEN THAT OF THE COMMISSION AND THAT OF THE WAGE AND HOUR
ADMINISTRATOR." 

THE RESPONDENT IS A MISSOURI CORPORATION, LICENSED IN ILLINOIS, AND
ENGAGED IN INTERSTATE COMMERCE AS A MOTOR CARRIER OF FREIGHT.  IT DOES
NOT APPEAR WHETHER THE RESPONDENT IS A COMMON CARRIER, CONTRACT CARRIER
OR PRIVATE CARRIER OF PROPERTY.  THE RESULT, HOWEVER, DOES NOT TURN
UPON DIFFERENCES BETWEEN THOSE CLASSIFICATIONS.  THE PETITIONER WAS
EMPLOYED BY THE RESPONDENT FROM OCTOBER 1, 1940, THROUGH OCTOBER 6,
1941, IN ONE OR MORE CAPACITIES WHICH HE DESIGNATES GENERALLY AS THOSE
OF A "CHECKER" OR "TERMINAL FOREMAN."  WHILE THE EVIDENCE IS
CONFLICTING AS TO SOME OF HIS DUTIES, THERE IS AMPLE TO SUSTAIN THE
JUDGMENT OF THE SUPREME COURT OF ILLINOIS ON THE BASIS THAT A
SUBSTANTIAL PART OF HIS ACTIVITIES CONSISTED OF DOING, OR IMMEDIATELY
DIRECTING, THE WORK OF ONE OR MORE "LOADERS" OF FREIGHT FOR AN
INTERSTATE MOTOR CARRIER AS THAT CLASS OF WORK IS DEFINED BY THE
INTERSTATE COMMERCE COMMISSION.  THE SUPREME COURT OF ILLINOIS ACCEPTED
THE APPELLATE COURT'S DESCRIPTION OF PETITIONER'S ACTIVITIES.  FN7  THE
POWER OF THE COMMISSION TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS
OF SERVICE WITH RESPECT TO SUCH "LOADERS" HAS BEEN DEFINED AND
DELIMITED BY IT IN A SERIES OF WELL-CONSIDERED DECISIONS, DATING FROM
THE EXTENSION OF ITS JURISDICTION, IN 1935, SO AS TO INCLUDE MOTOR
CARRIERS. 

THE HISTORY OF THE DEVELOPMENT OF THE CONGRESSIONAL SAFETY PROGRAM IN
INTERSTATE COMMERCE, UP TO AND INCLUDING THE ENACTMENT OF THE MOTOR
CARRIER ACT IN 1935 AND THE FAIR LABOR STANDARDS ACT IN 1938, TELLS THE
STORY. 

IN COMPARABLE FIELDS, CONGRESS PREVIOUSLY HAD PRESCRIBED SAFETY
EQUIPMENT, LIMITED MAXIMUM HOURS OF SERVICE AND IMPOSED PENALTIES FOR
VIOLATIONS OF ITS REQUIREMENTS.  FN8  IN THOSE ACTS, CONGRESS DID NOT
RELY UPON INCREASES IN RATES OF PAY FOR OVERTIME SERVICE TO ENFORCE THE
LIMITATIONS IT SET UPON HOURS OF SERVICE.  WHILE A REQUIREMENT OF PAY
THAT IS HIGHER FOR OVERTIME SERVICE THAN FOR REGULAR SERVICE TENDS TO
DETER EMPLOYERS FROM PERMITTING SUCH SERVICE, IT TENDS ALSO TO
ENCOURAGE EMPLOYEES TO SEEK IT.  THE REQUIREMENT OF SUCH INCREASED PAY
IS A REMEDIAL MEASURE ADAPTED TO THE NEEDS OF AN ECONOMIC AND SOCIAL
PROGRAM RATHER THAN A POLICE REGULATION ADAPTED TO THE RIGID
ENFORCEMENT REQUIRED IN A SAFETY PROGRAM.  OVERNIGHT MOTOR CO. V.
MISSEL, 316 U.S. 572, 577-578. 

BY 1935, 40 STATES HAD ATTEMPTED TO REGULATE SAFETY OF OPERATION OF
CARRIERS BY MOTOR VEHICLE.  SOME HAD ESTABLISHED QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE FOR DRIVERS AND HELPERS.  INCREASED INTERSTATE
MOVEMENTS OF MOTOR CARRIERS THEN MADE NECESSARY THE MOTOR CARRIER ACT,
1935, APPROVED AUGUST 9, 1935, AS PART II OF THE INTERSTATE COMMERCE
ACT, 49 STAT. 543.  THIS ACT VESTED IN THE INTERSTATE COMMERCE
COMMISSION POWER TO ESTABLISH REASONABLE REQUIREMENTS WITH RESPECT TO
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND SAFETY OF
OPERATION AND EQUIPMENT OF COMMON AND CONTRACT CARRIERS BY MOTOR
VEHICLE.  SEC. 204(A)(1)(2).  SIMILAR, BUT NOT IDENTICAL, LANGUAGE WAS
USED AS TO PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE.  SEC.
204(A)(3).  THE ACT EXPRESSLY SUPERSEDED "ANY CODE OF FAIR COMPETITION
FOR ANY INDUSTRY EMBRACING MOTOR CARRIERS  ..."  SEC. 204(B).  SECTION
203(B) LISTED MANY TYPES OF MOTOR CARRIERS WHICH WERE EXEMPTED IN
GENERAL FROM THE ACT BUT THAT SECTION SIGNIFICANTLY APPLIED TO ALL OF
THEM THE PROVISIONS OF SEC. 204 AS TO QUALIFICATIONS, MAXIMUM HOURS OF
SERVICE, SAFETY OF OPERATION AND EQUIPMENT.  FN9 

IT IS EVEN MORE SIGNIFICANT THAT IN 1942, SEVERAL YEARS AFTER
ENACTMENT OF THE FAIR LABOR STANDARDS ACT OF 1938, CONGRESS SLIGHTLY,
BUT EXPRESSLY, EXPANDED THE JURISDICTION OF THE COMMISSION OVER THESE
SUBJECTS OF QUALIFICATIONS, MAXIMUM HOURS OF SERVICE, SAFETY OF
OPERATION AND EQUIPMENT AND THEREBY RESTRICTED, TO A CORRESPONDING
DEGREE, THE APPLICATION OF THE COMPULSORY OVERTIME PROVISIONS OF THE
FAIR LABOR STANDARDS ACT.  FN10 

IN 1940, THIS COURT, IN UNITED STATES V. AMER.  TRUCKING ASSNS., 310
U.S. 534, RECOGNIZED THE EMPHASIS GIVEN BY CONGRESS TO THE CLAUSE
"QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE" IN SECS. 204(A) AND
203(B).  THAT DECISION REVIEWED THE LEGISLATIVE HISTORY OF THE ACT AND
HELD "THAT THE MEANING OF EMPLOYEES IN SEC. 204(A)(1) AND (2) IS
LIMITED TO THOSE EMPLOYEES WHOSE ACTIVITIES AFFECT THE SAFETY OF
OPERATION.  THE COMMISSION HAS NO JURISDICTION TO REGULATE THE
QUALIFICATIONS OR HOURS OF SERVICE OF ANY OTHERS."  ID. AT 553.  THE
OPINION DEALT WITH EMPLOYEES WHO DEVOTED THEMSELVES EXCLUSIVELY TO
THEIR RESPECTIVE ASSIGNMENTS, SUCH AS THOSE OF DRIVERS ON THE ONE HAND
OR OF CLERKS ON THE OTHER.  IT DEMONSTRATED THAT SEC. 204(A)(1) AND (2)
RELATED TO THE FORMER BUT NOT TO THE LATTER.  FN11  IT DID NOT DISCUSS
ITS RELATION TO EMPLOYEES WHO, AS IN THE PRESENT CASE, ARE REQUIRED TO
DIVIDE THEIR ACTIVITIES BETWEEN THOSE AFFECTING SAFETY OF OPERATION AND
THOSE NOT AFFECTING IT. 

IN SOUTHLAND CO. V. BAYLEY, 319 U.S. 44, THIS COURT APPLIED SIMILAR
REASONING TO AN EMPLOYEE OF A PRIVATE CARRIER OF PROPERTY UNDER SEC.
204(A)(3).  IT RECOGNIZED THE COMMISSION'S POWER TO FIND A NEED FOR ITS
ACTION AND, HAVING FOUND IT, TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE FOR EMPLOYEES OF PRIVATE MOTOR CARRIERS OF PROPERTY
AFFECTING THE SAFETY OF OPERATION OF SUCH CARRIERS.  IT HELD THAT,
UNDER SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT, THE COMMISSION'S
MERE POSSESSION OF THAT POWER, WHETHER EXERCISED OR NOT, NECESSARILY
EXCLUDED ALL EMPLOYEES, WITH RESPECT TO WHOM THE POWER EXISTED, FROM
THE BENEFITS OF THE COMPULSORY OVERTIME PROVISIONS OF SEC. 7 OF THAT
ACT.  THE PRESENT CASE INVOLVES A COMPARABLE SITUATION IN THAT THE
COMMISSION HAS FOUND HERE THAT IT HAS THE POWER TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR THOSE DOING THE WORK OF
LOADERS FOR COMMON OR CONTRACT MOTOR CARRIERS OR PRIVATE MOTOR CARRIERS
OF PROPERTY, BUT IT HAS NOT FOUND IT ADVISABLE, AS YET, TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR THAT WORK. 

THE LOGIC OF THE SITUATION IS THAT CONGRESS, AS A PRIMARY
CONSIDERATION, HAS PRESERVED INTACT THE SAFETY PROGRAM WHICH IT AND THE
INTERSTATE COMMERCE COMMISSION HAVE BEEN DEVELOPING FOR MOTOR CARRIERS
SINCE 1936.  TO DO THIS, CONGRESS HAS PROHIBITED THE OVERLAPPING OF THE
JURISDICTION OF THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, UNITED
STATES DEPARTMENT OF LABOR, WITH THAT OF THE INTERSTATE COMMERCE
COMMISSION AS TO MAXIMUM HOURS OF SERVICE.  CONGRESS MIGHT HAVE DONE
OTHERWISE.  IT MIGHT HAVE PERMITTED BOTH ACTS TO APPLY.  THERE IS NO
NECESSARY INCONSISTENCY BETWEEN ENFORCING RIGID MAXIMUM HOURS OF
SERVICE FOR SAFETY PURPOSES AND AT THE SAME TIME, WITHIN THOSE
LIMITATIONS, REQUIRING COMPLIANCE WITH THE INCREASED RATES OF PAY FOR
OVERTIME WORK DONE IN EXCESS OF THE LIMITS SET IN SEC. 7 OF THE FAIR
LABOR STANDARDS ACT.  SUCH OVERLAPPING, HOWEVER, HAS NOT BEEN
AUTHORIZED BY CONGRESS N12 AND IT REMAINS FOR US TO GIVE FULL EFFECT TO
THE SAFETY PROGRAM TO WHICH CONGRESS HAS ATTACHED PRIMARY IMPORTANCE,
EVEN TO THE CORRESPONDING EXCLUSION BY CONGRESS OF CERTAIN EMPLOYEES
FROM THE BENEFITS OF THE COMPULSORY OVERTIME PAY PROVISIONS OF THE FAIR
LABOR STANDARDS ACT.  WHEN EXAMINED FROM THE POINT OF VIEW OF THE MOTOR
CARRIER ACT ALONE, MUCH LIGHT IS THROWN ON THE MEANING OF ITS SEC. 204
BY THE INTERPRETATION GIVEN TO IT AND THE APPLICATIONS MADE OF IT BY
THE INTERSTATE COMMERCE COMMISSION. 

THE REPORTS AND REGULATIONS OF THAT COMMISSION, ISSUED UNDER
AUTHORITY OF PART II OF THE INTERSTATE COMMERCE ACT, BOTH BEFORE AND
AFTER THE ENACTMENT OF THE FAIR LABOR STANDARDS ACT, DEAL SO THOROUGHLY
AND EXPERTLY WITH THE SAFETY OF OPERATION OF INTERSTATE MOTOR
TRANSPORTATION AS TO ENTITLE THEM TO ESPECIALLY SIGNIFICANT WEIGHT IN
THE INTERPRETATION OF THIS ACT, THE ENFORCEMENT OF WHICH HAS BEEN
COMMITTED BY CONGRESS SOLELY TO THAT COMMISSION. 

THE PRINCIPAL REPORTS AND REGULATIONS OF THE COMMISSION, BEARING UPON
THE PRESENT CONTROVERSY, ARE THE FOLLOWING:  FN13 

DECEMBER 23, 1936.  1 M.C.C. 1.  EX PARTE NO. MC-4 ESTABLISHED
QUALIFICATIONS FOR DRIVERS OF INTERSTATE, COMMON OR CONTRACT CARRIERS
BY MOTOR VEHICLE, OUTLINED A LONG-TERM SAFETY PROGRAM AND ISSUED
REGULATIONS AS TO SAFETY OF OPERATION AND EQUIPMENT, CONSTITUTING
PARTS, I, II, III AND IV OF MOTOR CARRIER SAFETY REGULATIONS. 

DECEMBER 29, 1937.  3 M.C.C. 665.  EX PARTE NO. MC-2 ESTABLISHED
MAXIMUM HOURS OF SERVICE FOR DRIVERS OF INTERSTATE, COMMON OR CONTRACT
CARRIERS BY MOTOR VEHICLES, PART V OF SUCH REGULATIONS. 

JULY 9, 1938.  8 M.C.C. 162.  EX PARTE NO. MC-4 MODIFIED PART III OF
SUCH REGULATIONS AS TO SAFETY GLASS. 

JULY 12, 1938.  6 M.C.C. 557.  EX PARTE NO. MC-2, IN THE LIGHT OF
CURRENT EXPERIENCE, MODIFIED PART V OF THE REGULATIONS AS TO MAXIMUM
HOURS OF SERVICE FOR SUCH DRIVERS. 

DECEMBER 3, 1938.  10 M.C.C. 533.  EX PARTE NO. MC-4 ADAPTED THE
COMMISSION'S GENERAL QUALIFICATIONS AND REGULATIONS TO THOSE TYPES OF
CARRIERS WHICH WERE EXEMPTED FROM THE MOTOR CARRIER ACT BY SEC. 203(B),
BUT WHICH HAD REMAINED SUBJECT TO THE JURISDICTION OF THE COMMISSION,
UNDER SEC. 204, AS TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF
EMPLOYEES, SAFETY OF OPERATION AND EQUIPMENT. 

JANUARY 27, 1939.  11 M.C.C. 203.  EX PARTE NO. MC-2 FURTHER MODIFIED
PART V OF REGULATIONS AS TO MAXIMUM HOURS OF SERVICE OF DRIVERS FOR
COMMON AND CONTRACT CARRIERS BY MOTOR VEHICLE. 

MAY 9, 1939.  13 M.C.C. 481.  EX PARTE NO. MC-28 INTERPRETED SEC.
204(A) AS GIVING THE COMMISSION AUTHORITY TO PRESCRIBE QUALIFICATIONS
AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES OF COMMON, CONTRACT AND
PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE ONLY AS TO THOSE
EMPLOYEES WHOSE ACTIVITIES AFFECTED SAFETY OF OPERATION.  IT SAID: 
"OUR EXPERIENCE AND THE STUDY WE NECESSARILY MADE IN CONNECTION WITH
THE ADMINISTRATION OF THE MOTOR CARRIER ACT QUALIFY US TO PRESCRIBE
SUCH REGULATIONS (I.E., AS TO DRIVERS), TO PROMOTE SAFETY OF
OPERATION.  QUITE THE CONTRARY WOULD BE TRUE IF WE WERE CALLED UPON TO
PRESCRIBE GENERAL QUALIFICATIONS FOR ALL EMPLOYEES OF SUCH CARRIERS." 
ID. AT 485. 

CLERKS, SALESMEN AND EXECUTIVES WERE NAMED AS NOT BEING WITHIN THE
COMMISSION'S JURISDICTION.  REFERRING FURTHER TO ITS POWER TO PRESCRIBE
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE WITH RESPECT TO DRIVERS AND
OTHERS, THE COMMISSION SAID: 

"THAT POWER UNDOUBTEDLY EXTENDS TO DRIVERS OF SUCH VEHICLES.  IT MAY
WELL BE THAT THE ACTIVITIES OF SOME EMPLOYEES OTHER THAN DRIVERS
LIKEWISE AFFECT THE SAFETY OF OPERATION OF MOTOR VEHICLES ENGAGED IN
INTERSTATE AND FOREIGN COMMERCE.  IF COMMON AND CONTRACT CARRIERS, OR
PRIVATE CARRIERS OF PROPERTY, OR THEIR EMPLOYEES BELIEVE THAT THE
ACTIVITIES OF EMPLOYEES OTHER THAN DRIVERS AFFECT THE SAFETY OF
OPERATION OF MOTOR VEHICLES ENGAGED IN INTERSTATE AND FOREIGN COMMERCE,
THEY MAY FILE AN APPROPRIATE PETITION, ASKING THAT A HEARING BE HELD
AND THE QUESTION DETERMINED."  ID. AT 488. 

MAY 27, 1939.  14 M.C.C. 669.  EX PARTE NO. MC-4.  THE "MOTOR CARRIER
SAFETY REGULATIONS, REVISED," WERE FOUND TO BE "REASONABLE REQUIREMENTS
WITH RESPECT TO QUALIFICATIONS OF EMPLOYEES AND SAFETY OF OPERATION AND
EQUIPMENT OF COMMON CARRIERS AND CONTRACT CARRIERS SUBJECT TO THE MOTOR
CARRIER ACT, 1935, AND THAT SAID REVISED REGULATIONS SHOULD BE
APPROVED, ADOPTED, AND PRESCRIBED."  ID. AT 683.  THESE REVISIONS
STRENGTHENED THE PROVISIONS AS TO QUALIFICATIONS OF DRIVERS, FOR COMMON
AND CONTRACT CARRIERS, AS TO EYESIGHT, PHYSICAL CONDITION, AGE, AND
ABILITY TO READ AND SPEAK ENGLISH.  THEY EXTENDED THE MAXIMUM HOURS OF
SERVICE REGULATIONS TO DRIVERS FOR THE "EXEMPT CARRIERS" ENUMERATED IN
SEC. 203(B), EXCEPTING ONLY THOSE REFERRED TO IN SUBPARAGRAPH (4A)
RELATING TO FARMERS.  FN14 

JUNE 15, 1939.  16 M.C.C. 497.  NO. MC-C-139.  UPON PETITION OF
AMERICAN TRUCKING ASSOCIATIONS, INCORPORATED, ET AL., THE COMMISSION
REAFFIRMED ITS DECISION OF MAY 9, 1939, IN EX PARTE NO. MC-28, AND
STATED THE NEGATIVE SIDE OF THE PROPOSITION THERE ESTABLISHED.  IT SAID
THAT SEC. 204(A) "DOES NOT EMPOWER US TO PRESCRIBE MAXIMUM HOURS OF
SERVICE FOR EMPLOYEES OF MOTOR CARRIERS WHOSE ACTIVITIES DO NOT AFFECT
THE SAFETY OF OPERATION."  ID. AT 497. 

MAY 1, 1940.  23 M.C.C. 1.  EX PARTE NO. MC-3.  FOLLOWING EXTENDED
HEARINGS, THE COMMISSION MADE FINDINGS THAT ARE IMPORTANT HERE.  FIRST,
IT FOUND, AS REQUIRED BY SEC. 204(A)(3), THAT "THERE IS NEED FOR
FEDERAL REGULATION OF PRIVATE CARRIERS OF PROPERTY TO PROMOTE SAFETY OF
OPERATION OF MOTOR VEHICLES USED BY SUCH CARRIERS IN THE TRANSPORTATION
OF PROPERTY IN INTERSTATE OR FOREIGN COMMERCE."  ID. AT 42.  WITH
COMPARATIVELY FEW EXCEPTIONS, SUCH AS THOSE RELATING TO FARM TRUCKS AND
INDUSTRY TRUCKS, THE COMMISSION THEN APPLIED TO DRIVERS FOR PRIVATE
CARRIERS OF PROPERTY BY MOTOR VEHICLE IN INTERSTATE AND FOREIGN
COMMERCE THE SAME QUALIFICATIONS, MAXIMUM HOURS OF SERVICE AND
REGULATIONS AS TO SAFETY OF OPERATION AND EQUIPMENT THAT IT PREVIOUSLY
HAD PRESCRIBED, BY ITS ORDERS IN EX PARTE NO. MC-2, SUPRA, AND EX PARTE
NO. MC-4, SUPRA, FOR DRIVERS OF COMMON AND CONTRACT CARRIERS.  ID. AT
22, 42. 

THE SIGNIFICANCE OF THIS ACTION IN RELATION TO THE PRESENT CASE IS
THAT, IN CONSIDERING THE CLASSES OF WORK DONE BY DRIVERS FOR PRIVATE
MOTOR CARRIERS, THE COMMISSION FOUND MANY INSTANCES WHERE ONLY A PART
OF THE DRIVER'S ACTIVITIES RELATED TO DRIVING OR TO OTHER OPERATIONS
AFFECTING SAFETY OF TRANSPORTATION.  FOR EXAMPLE, THE COMMISSION DEALT
WITH DRIVERS OF FARM TRUCKS.  SECTION 203(B)(4A) OF THE MOTOR CARRIER
ACT EXEMPTS FARM TRUCKS, FOR MOST PURPOSES, FROM THE PROVISIONS OF THAT
ACT.  NEVERTHELESS, SEC. 204 RETAINS THEM WITHIN THE JURISDICTION OF
THE COMMISSION WITH RESPECT TO THE QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE OF EMPLOYEES WHOSE ACTIVITIES AFFECT THE SAFETY OF OPERATION OF
INTERSTATE CARRIERS BY MOTOR VEHICLE.  THE COMMISSION RECOGNIZED THAT
SUCH DRIVERS HAVE MANY DUTIES UNRELATED TO THOSE OF DRIVING OR SAFETY
OF OPERATION; THAT FARM TRUCKS, TO A LARGE EXTENT, DO NOT TRAVEL PUBLIC
HIGHWAYS; THAT THE WORK IS NOT A YEAR-ROUND OPERATION BUT GENERALLY IS
CONFINED TO THE HARVEST SEASON; BUT THAT, NEVERTHELESS, WHENEVER SUCH A
TRUCK IS BEING OPERATED IN INTERSTATE TRANSPORTATION ON THE PUBLIC
HIGHWAY, THE HAZARDS INVOLVED IN SUCH OPERATION ARE COMPARABLE TO THOSE
FACED BY DRIVERS WHO DEVOTE THEIR ENTIRE TIME TO INTERSTATE TRUCK
DRIVING OF ALL KINDS.  WITH APPROPRIATE MODIFICATIONS, THE COMMISSION
THEREUPON PRESCRIBED FOR DRIVERS OF FARM TRUCKS QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE DIFFERENT FROM, BUT COMPARABLE TO, THOSE IT
HAD PRESCRIBED FOR DRIVERS OF COMMON AND CONTRACT CARRIER TRUCKS IN
GENERAL.  INSTEAD OF ITS STANDARD MINIMUM REQUIREMENT OF 21 YEARS OF
AGE, IT SET THE MINIMUM AGE REQUIREMENT FOR DRIVERS OF FARM TRUCKS AT
18, WHEN THE GROSS WEIGHT OF THE VEHICLE AND LOAD COMBINED DID NOT
EXCEED 10,000 POUNDS.  IT DECLINED TO APPROVE A MINIMUM AGE OF 16,
ALTHOUGH THAT HAD BEEN ACCEPTED BY SOME STATES.  IT ELIMINATED THE
USUAL PHYSICAL EXAMINATIONS.  IT RELAXED ITS RULE AGAINST
TRANSPORTATION OF PASSENGERS.  IT ELIMINATED ITS REQUIREMENT OF KEEPING
A DRIVER'S LOG SHOWING A WRITTEN RECORD OF THE TRIPS AND STOPS MADE BY
EACH DRIVER.  IT RETAINED, HOWEVER, ITS RESTRICTION AGAINST DRIVING
MORE THAN 10 HOURS IN ANY ONE DAY AND, IN PLACE OF THE PROHIBITION
AGAINST A TOTAL OF MORE THAN 60 HOURS ON DUTY IN A WEEK, IT LIMITED THE
TOTAL HOURS OF DRIVING, AS DISTINGUISHED FROM OTHER DUTIES, TO 50 HOURS
IN A WEEK.  EX PARTE NO. MC-3, 23 M.C.C. 1, 27-28, 43. 

THE COMMISSION TOOK COMPARABLE ACTION AS TO INDUSTRY TRUCKS.  IT
RECOGNIZED, FOR EXAMPLE, THAT A BAKERY DRIVER-SALESMAN DEVOTES MUCH OF
HIS EFFORT AND TIME TO SELLING BAKED GOODS RATHER THAN TO ACTIVITIES
AFFECTING THE SAFETY OF OPERATION OF HIS TRUCK.  THE COMMISSION,
HOWEVER, DID NOT RELINQUISH JURISDICTION OVER THE QUALIFICATIONS OF
DRIVER-SALESMEN NOR DID IT REFRAIN FROM REGULATING THEIR DRIVING TIME. 
IT MODIFIED ITS USUAL RULE BY PROVIDING THAT, IF A DRIVER-SALESMAN
"SPENDS MORE THAN 50 PERCENT OF HIS TIME IN SELLING AND LESS THAN 50
PERCENT IN PERFORMING SUCH DUTIES AS DRIVING, LOADING, AND UNLOADING,"
HE MAY BE PERMITTED TO EXCEED THE USUAL LIMIT OF 60 HOURS ON DUTY IN
ANY WEEK OF 168 CONSECUTIVE HOURS, PROVIDED ONLY THAT "HIS HOURS OF
DRIVING ARE LIMITED TO A TOTAL OF NOT MORE THAN 40 IN ANY SUCH WEEK." 
ID. AT 44, AND SEE 31(RECOMMENDING 50 HOURS).  THIS USE BY THE
COMMISSION OF A PERCENTAGE OF THE DRIVER'S TIME AS A BASIS FOR THE
ADJUSTMENT OF HIS PERMISSIBLE MAXIMUM HOURS OF SERVICE IS TO BE
DISTINGUISHED FROM THE SUGGESTION OF THE ADMINISTRATOR OF THE WAGE AND
HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, THAT THE ENTIRE POWER
OF THE COMMISSION OVER SAFETY REGULATIONS MUST BE DENIED AS A MATTER OF
LAW WHENEVER, IN ANY GIVEN WEEK, AN EMPLOYEE HAS DEVOTED OVER 50% OF
HIS WORKING TIME TO ACTIVITIES NOT AFFECTING SAFETY, ALTHOUGH HE MAY
HAVE DEVOTED THE REST OF HIS WORKING TIME TO DRIVING A COMMON CARRIER
TRUCK IN INTERSTATE COMMERCE.  FN15  IT IS ESSENTIAL TO THE
COMMISSION'S SAFETY PROGRAM WHENEVER AND WHEREVER HAZARDOUS ACTIVITIES
ARE ENGAGED IN THAT AFFECT SAFETY OF OPERATION OF AN INTERSTATE MOTOR
CARRIER, THAT THOSE WHO ENGAGE IN THEM SHALL BE QUALIFIED TO DO SO AND
THAT MAXIMUM HOURS OF SERVICE AFFECTING SUCH SAFETY OF OPERATION SHALL
BE ESTABLISHED AND ENFORCED.  THIS MEANS RETAINING AND USING, RATHER
THAN RELINQUISHING, THE COMMISSION'S JURISDICTION OVER PARTIAL-DUTY
DRIVERS AND PARTIAL-DUTY LOADERS, A SUBSTANTIAL PART OF WHOSE
ACTIVITIES AFFECTS THE SAFETY OF INTERSTATE MOTOR CARRIER OPERATIONS,
ALTHOUGH THE REST OF THEIR ACTIVITIES MAY NOT AFFECT THE SAFETY OF SUCH
OPERATIONS. 

RECOGNIZING ITS POTENTIAL JURISDICTION OVER OTHERS THAN DRIVERS, THE
COMMISSION, IN THAT PROCEEDING, INVITED PRIVATE CARRIERS OF PROPERTY OR
THEIR EMPLOYEES WHO "BELIEVE THAT THE ACTIVITIES OF EMPLOYEES OTHER
THAN DRIVERS AFFECT THE SAFETY OF OPERATION OF MOTOR VEHICLES ENGAGED
IN INTERSTATE OR FOREIGN COMMERCE" TO INSTITUTE PROCEEDINGS IN ORDER
THAT THE QUESTION BE DETERMINED.  ID. AT 44. 

MARCH 4, 1941.  28 M.C.C. 125, EX PARTE NOS. MC-2 AND MC-3.  IN THE
LIGHT OF THE FOREGOING EXPERIENCE AND HEARINGS, TOGETHER WITH THE
DECISION OF THIS COURT IN UNITED STATES V. AMER.  TRUCKING ASSNS.,
SUPRA, THE COMMISSION, IN THIS LATEST AND MOST INFORMATIVE DECISION,
FOUND THAT THE CLASSES OF ACTIVITIES WHICH IT DEFINED AS THOSE OF
MECHANICS, LOADERS AND HELPERS AFFECT THE SAFETY OF OPERATION OF MOTOR
VEHICLES AND THAT, THEREFORE, EMPLOYEES ENGAGING IN SUCH CLASSES OF
ACTIVITIES ARE SUBJECT TO THE COMMISSION'S POWER TO PRESCRIBE THEIR
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE, PURSUANT TO SEC. 204(A). 
FN16  AS RELATED TO LOADERS, THE COMMISSION ANNOUNCED THE FOLLOWING
FINDINGS OF FACT WHICH ARE SIGNIFICANT IN THE PRESENT CASE: 

"FINDINGS OF FACT.  -  ... 

"2.  THAT LOADERS, AS ABOVE DEFINED,  FN17  EMPLOYED BY COMMON AND
CONTRACT CARRIERS AND PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE
SUBJECT TO PART II OF THE INTERSTATE COMMERCE ACT DEVOTE A LARGE PART
OF THEIR TIME TO ACTIVITIES WHICH DIRECTLY AFFECT THE SAFETY OF
OPERATION OF MOTOR VEHICLES IN INTERSTATE OR FOREIGN COMMERCE. 

     .         .         . .         . 

"4.  THAT NO EMPLOYEES OF COMMON AND CONTRACT CARRIERS OR PRIVATE
CARRIERS OF PROPERTY BY MOTOR VEHICLE, SUBJECT TO PART II OF THE
INTERSTATE COMMERCE ACT, OTHER THAN DRIVERS AND THOSE CLASSES OF
EMPLOYEES COVERED BY THE THREE PRECEDING FINDINGS OF FACT (MECHANICS,
LOADERS AND HELPERS), PERFORM DUTIES WHICH DIRECTLY AFFECT SAFETY OF
OPERATION."  EX PARTE NO. MC-2, 28 M.C.C. 125, 138-139. 

THESE FINDINGS OF FACT ARE SQUARELY WITHIN THE JURISDICTION OF THE
COMMISSION.  THEY STATE AFFIRMATIVELY THAT, IN THE OPINION OF THE
COMMISSION, THE ACTIVITIES OF LOADERS AS DESCRIBED BY THE COMMISSION DO
AFFECT THE SAFETY OF OPERATION OF MOTOR VEHICLES IN INTERSTATE OR
FOREIGN COMMERCE.  THEY INCLUDE ALSO A FINDING THAT SUCH LOADERS
"DEVOTE A LARGE PART OF THEIR TIME TO ACTIVITIES WHICH DIRECTLY AFFECT
THE SAFETY OF OPERATION OF MOTOR VEHICLES IN INTERSTATE OR FOREIGN
COMMERCE."  IN THE ABSENCE OF ANY DISCUSSION OR CLASSIFICATION, ON A
TIME BASIS, OF THE SEVERAL ACTIVITIES OF LOADERS DESCRIBED BY THE
COMMISSION, THIS ADDITIONAL FINDING AMOUNTS TO ANOTHER WAY OF SAYING
THAT A LARGE PART OF THE LOADER'S ACTIVITIES AFFECT SUCH SAFETY OF
OPERATION.  THERE IS NOTHING TO INDICATE THAT IT USES THE ELEMENT OF
TIME OTHER THAN AS REPRESENTATIVE OF THE CONTINUING WORK PERIOD DURING
ALL OF WHICH THE LOADER IS DEVOTING HIMSELF TO THE ACTIVITIES OF HIS
JOB AS A LOADER.  IT AMOUNTS, THEREFORE, MERELY TO A FINDING AS TO THE
CHARACTER OF A LARGE PART OF THE ACTIVITIES OF LOADERS, IN ACCORDANCE
WITH THE MAIN PURPOSE OF THE COMMISSION'S PROCEEDING WHICH WAS TO
DETERMINE TO WHAT EXTENT, IF ANY, THE ACTIVITIES OF LOADERS AFFECT
SAFETY OF OPERATION. 

THIS ADDITIONAL FINDING, HOWEVER, IS MATERIAL FROM ANOTHER POINT OF
VIEW.  IT RECOGNIZES TACITLY THAT EVEN A FULL-DUTY LOADER MAY ENGAGE IN
SOME ACTIVITIES WHICH DO NOT AFFECT SAFETY OF OPERATION.  SUCH "NON
SAFETY" ACTIVITIES MAY MAKE UP ANOTHER "LARGE PART" OF THE LOADER'S
TOTAL ACTIVITIES.  THEY MAY CONSTITUTE AN EVEN LARGER PART OF HIS
ACTIVITIES THAN HIS SAFETY-AFFECTING ACTIVITIES.  IN THE PRESENT CASE
IT WAS SHOWN BY THE COURTS BELOW THAT, IN ADDITION TO HIS ACTIVITIES IN
CLERICAL CHECKING, ETC., A "SUBSTANTIAL PART" OF THE PETITIONER'S
ACTIVITIES CONSISTED OF THE VERY KIND OF ACTIVITIES OF A LOADER WHICH
THE COMMISSION HAS DESCRIBED AS DIRECTLY AFFECTING SAFETY OF
OPERATION.  IF IT BE SUGGESTED THAT SIGNIFICANCE SHOULD BE ATTACHED TO
THE COMMISSION'S USE OF THE WORD "LARGE" RATHER THAN THE LOWER COURTS'
USE OF THE WORD "SUBSTANTIAL" IN THIS CONNECTION, SUCH SIGNIFICANCE
DISAPPEARS COMPLETELY WHEN IT IS SEEN THAT THE COMMISSION ITSELF
SUBSTITUTES THE WORD "SUBSTANTIAL" FOR THE WORD "LARGE" IN ITS
CONCLUSION OF LAW WHICH IS QUOTED BELOW. 

WHILE THE INDEFINITENESS OF THE TERMS "LARGE" OR "SUBSTANTIAL" IS
OBVIOUS, NEVERTHELESS, THOSE ARE THE WORDS WHICH THE COMMISSION HAS
CHOSEN TO USE IN DEALING WITH THIS SUBJECT.  ARBITRARY OR SHARP LINES
OF DISTINCTION DO NOT LEND THEMSELVES READILY TO SUPPLYING THAT EXTRA
MARGIN OF SECURITY WHICH IS NATURAL IN SAFETY ENGINEERING.  THE
FUNDAMENTAL TEST IS SIMPLY THAT THE EMPLOYEE'S ACTIVITIES AFFECT SAFETY
OF OPERATION.  THIS IS THE TEST PRESCRIBED BY THIS COURT IN UNITED
STATES V. AMER.  TRUCKING ASSNS., SUPRA.  THE VERB "AFFECT" IS ITSELF
INCAPABLE OF EXACT MEASUREMENT.  FURTHERMORE, WE ARE DEALING HERE NOT
WITH THE FINAL APPLICATION OF THE POWER OF THE COMMISSION, BUT RATHER
WITH THE LIMITS OF ITS DISCRETIONARY POWER TO ESTABLISH THE
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE WHEN AND WHERE DEEMED BY IT
TO BE NEEDED.  IN ISSUING ITS REGULATIONS, THE COMMISSION ITSELF CAN
SUPPLY WHATEVER DEFINITENESS THE OCCASION SHALL REQUIRE.  FROM THE
POINT OF VIEW OF THE SAFETY PROGRAM UNDER THE MOTOR CARRIER ACT, THERE
IS NO NEED FOR A SHARPLY DRAWN LIMIT TO THE POWER OF THE COMMISSION TO
MAKE REGULATIONS WITH RESPECT TO EMPLOYEES WHOSE ACTIVITIES AFFECT THE
SAFETY OF OPERATION OF MOTOR VEHICLES IN INTERSTATE OR FOREIGN
COMMERCE. 

TURNING TO THE CONCLUSIONS OF LAW WHICH WERE REACHED BY THE
COMMISSION IN THE SAME PROCEEDING WE FIND THE FOLLOWING: 

"CONCLUSIONS OF LAW.  -  ... 

"2.  THAT OUR JURISDICTION TO PRESCRIBE QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE FOR EMPLOYEES OF COMMON AND CONTRACT CARRIERS AND
PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE IS LIMITED TO THOSE
EMPLOYEES WHO DEVOTE A SUBSTANTIAL PART OF THEIR TIME TO ACTIVITIES
WHICH DIRECTLY AFFECT THE SAFETY OF OPERATION OF MOTOR VEHICLES IN THE
TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OR FOREIGN
COMMERCE.    "3.  THAT WE HAVE POWER, UNDER SECTION 204(A) OF SAID PART
II, TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR THE
CLASSES OF EMPLOYEES COVERED BY FINDINGS OF FACT NUMBERED 1, 2, AND 3
ABOVE (MECHANICS, LOADERS AND HELPERS), AND THAT WE HAVE NO SUCH POWER
OVER ANY OTHER CLASSES OF EMPLOYEES, EXCEPT DRIVERS. 

"A FURTHER HEARING WILL BE HELD TO DETERMINE WHAT REGULATIONS, IF
ANY, SHOULD BE PRESCRIBED FOR THOSE EMPLOYEES, OTHER THAN DRIVERS, WHOM
WE HAVE FOUND SUBJECT TO OUR JURISDICTION.  NO ORDER IS NECESSARY AT
THIS TIME."  EX PARTE NO. MC-2, 28 M.C.C. 125, 139.  AS CONCLUSIONS OF
LAW, THESE DO NOT HAVE THE SAME CLAIM TO FINALITY AS DO THE FINDINGS OF
FACT MADE BY THE COMMISSION.  HOWEVER, IN THE LIGHT OF THE COMMISSION'S
LONG RECORD OF PRACTICAL EXPERIENCE WITH THIS SUBJECT AND ITS
RESPONSIBILITY FOR THE ADMINISTRATION AND ENFORCEMENT OF THIS LAW,
THESE CONCLUSIONS ARE ENTITLED TO SPECIAL CONSIDERATION.  CONCLUSION OF
LAW NO. 2 MUST BE READ IN CLOSE CONNECTION WITH FINDING OF FACT NO. 2
AND CONCLUSION OF LAW NO. 3.  IT IS APPARENT THAT, IN CONCLUSION OF LAW
NO. 2, THE PHRASE "EMPLOYEES WHO DEVOTE A SUBSTANTIAL PART OF THEIR
TIME TO ACTIVITIES WHICH DIRECTLY AFFECT THE SAFETY OF OPERATION OF
MOTOR VEHICLES" IS INTENDED TO MATCH THE CORRESPONDING PHRASE IN
FINDING OF FACT NO. 2 AS TO LOADERS WHO "DEVOTE A LARGE PART OF THEIR
TIME TO ACTIVITIES WHICH DIRECTLY AFFECT THE SAFETY OF OPERATION OF
MOTOR VEHICLES."  THIS IS MADE STILL MORE CLEAR BY CONCLUSION OF LAW
NO. 3 WHICH FINDS THAT THE COMMISSION HAS JURISDICTION TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR THE LOADERS INCLUDED IN
BOTH PARAGRAPHS.  HERE AGAIN THERE IS NO CLASSIFICATION OF THE
RESPECTIVE ACTIVITIES OF LOADERS ON THE BASIS OF THE TIME DEVOTED TO
EACH ACTIVITY.  THE PHRASE CLOSELY FOLLOWS A DISCUSSION OF FULL-DUTY
LOADERS AND ITS REFERENCE TO A "SUBSTANTIAL PART OF THEIR TIME" IS BUT
ANOTHER WAY OF SAYING A "SUBSTANTIAL PART OF THEIR ACTIVITIES AS
LOADERS." 

ADDRESSING OURSELVES TO THE QUESTIONS OF LAW PRESENTED BY THE CASE
BEFORE US, WE REAFFIRM OUR POSITION IN UNITED STATES V. AMER.  TRUCKING
ASSNS., 310 U.S. 534, AND SOUTHLAND CO. V. BAYLEY, 319 U.S. 44.  WE
RECOGNIZE THE INTERSTATE COMMERCE COMMISSION AS THE AGENCY CHARGED WITH
THE ADMINISTRATION AND ENFORCEMENT OF THE MOTOR CARRIER ACT AND
ESPECIALLY CHARGED WITH THE ESTABLISHMENT OF QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE OF EMPLOYEES OF COMMON AND CONTRACT CARRIERS AND
PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE IN INTERSTATE AND FOREIGN
COMMERCE.  WE SEE NO REASON TO QUESTION ITS CONSIDERED CONCLUSION THAT
THE ACTIVITIES OF FULL-DUTY DRIVERS, MECHANICS, LOADERS AND HELPERS, AS
DEFINED BY IT, AFFECT SAFETY OF OPERATION OF THE CARRIERS BY WHOM THEY
ARE EMPLOYED.  IN HARMONY WITH OUR REASONING IN SOUTHLAND CO. V.
BAYLEY, SUPRA, AND WITH THAT OF THE INTERSTATE COMMERCE COMMISSION IN
EX PARTE NO. MC-3, 23 M.C.C. 1, AS TO EMPLOYEES OF PRIVATE CARRIERS,
AND IN EX PARTE NOS. MC-2 AND MC-3, 28 M.C.C. 125, AS TO MECHANICS,
LOADERS AND HELPERS IN GENERAL, WE HOLD THAT THE COMMISSION HAS THE
POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE UNDER
SEC. 204(A) WITH RESPECT TO FULL-DUTY EMPLOYEES ENGAGED IN DOING THE
WORK OF LOADERS, ALTHOUGH THE COMMISSION HAS NOT EXERCISED THAT POWER
AFFIRMATIVELY BY ESTABLISHING QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE WITH RESPECT TO LOADERS. 

IN HARMONY WITH OUR DECISION IN UNITED STATES V. AMER.  TRUCKING
ASSNS., SUPRA, AND OF THE INTERSTATE COMMERCE COMMISSION IN EX PARTE
NO. MC-28, 13 M.C.C. 481, WE RECOGNIZE THAT THE COMMISSION HAS SUCH
POWER OVER ALL EMPLOYEES OF SUCH CARRIERS WHOSE ACTIVITIES AFFECT
SAFETY OF OPERATION AND THAT THE COMMISSION DOES NOT HAVE SUCH POWER
OVER EMPLOYEES WHOSE ACTIVITIES DO NOT AFFECT SAFETY OF OPERATION.  IN
THE AMERICAN TRUCKING ASSOCIATIONS CASE IT WAS NOT DETERMINED THAT IT
WAS NECESSARY FOR ANY EMPLOYEE TO DEVOTE ALL, OR ANY PRECISE SHARE, OF
HIS WORKING TIME OR OF HIS ACTIVITIES, TO A PARTICULAR CLASS OF WORK IN
ORDER FOR SUCH CLASS OF WORK TO BE HELD TO AFFECT SAFETY OF OPERATION. 
IT WAS ASSUMED, FOR THE PURPOSES OF THAT CASE, THAT THE EMPLOYEE
DEVOTED HIS ENTIRE WORKING TIME AND ACTIVITIES TO THE SINGLE CLASS OF
WORK UNDER CONSIDERATION. 

IT HAS BEEN NOTED, HOWEVER, THAT THE COMMISSION, IN DEFINING THE
CLASS OF WORK, AS A WHOLE, OF LOADERS, RECOGNIZED, IN ITS FINDINGS OF
FACT, THAT THAT CLASS OF WORK IN ITS NATURE INCLUDED DUTIES OTHER THAN
THOSE DIRECTLY AFFECTING SAFETY OF OPERATION.  IT SAID:  "WE CONCLUDE
THAT LOADERS DEVOTE A LARGE PART OF THEIR TIME TO ACTIVITIES WHICH
DIRECTLY AFFECT THE SAFETY OF OPERATION OF MOTOR VEHICLES OPERATED IN
INTERSTATE OR FOREIGN COMMERCE, AND HENCE THAT WE HAVE POWER TO
ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR SUCH
EMPLOYEES UNDER SAID SECTION 204(A)."  EX PARTE NO. MC-2, 28 M.C.C.
125, 134, AND SEE 139.  THIS MEANS THAT THE NATURE OF THE DUTIES OF
EVEN A FULL-DUTY "LOADER" IS SUCH THAT IT IS NOT ESSENTIAL THAT MORE
THAN A "LARGE PART" OF HIS TIME OR ACTIVITIES BE CONSUMED IN ACTIVITIES
DIRECTLY AFFECTING THE SAFETY OF OPERATION OF MOTOR VEHICLES - FOR
EXAMPLE - LOADING, DISTRIBUTING AND MAKING SECURE HEAVY OR LIGHT
PARCELS OF FREIGHT ON BOARD A TRUCK SO AS TO CONTRIBUTE AS MUCH AS
POSSIBLE TO THE SAFETY OF THE TRIP.  ON THE OTHER HAND, IT MEANS ALSO
THAT MORE THAN HALF OF THE TIME OR ACTIVITIES OF A FULL-DUTY "LOADER"
MAY BE CONSUMED IN ACTIVITIES NOT DIRECTLY AFFECTING THE SAFETY OF
OPERATION OF MOTOR VEHICLES - FOR EXAMPLE - IN PLACING FREIGHT IN
CONVENIENT PLACES IN THE TERMINAL, CHECKING BILLS OF LADING, ETC.  FROM
THE POINT OF VIEW OF THE COMMISSION AND ITS JURISDICTION OVER SAFETY OF
OPERATION, THIS INDICATES THAT IT IS NOT A QUESTION OF FUNDAMENTAL
CONCERN WHETHER OR NOT IT IS THE LARGER OR THE SMALLER FRACTION OF THE
EMPLOYEE'S TIME OR ACTIVITIES THAT IS DEVOTED TO SAFETY WORK.  IT IS
THE CHARACTER OF THE ACTIVITIES RATHER THAN THE PROPORTION OF EITHER
THE EMPLOYEE'S TIME OR OF HIS ACTIVITIES THAT DETERMINES THE ACTUAL
NEED FOR THE COMMISSION'S POWER TO ESTABLISH REASONABLE REQUIREMENTS
WITH RESPECT TO QUALIFICATIONS, MAXIMUM HOURS OF SERVICE, SAFETY OF
OPERATION AND EQUIPMENT.  THIS LINE OF REASONING IS CONSISTENT WITH
THAT APPLIED THROUGHOUT THIS CASE.  IT RESULTS IN KEEPING WITHIN THE
JURISDICTION OF THE COMMISSION'S SAFETY PROGRAM PARTIAL-DUTY LOADERS,
AS WELL AS FULL-DUTY LOADERS, PROVIDED ONLY THAT THE CLASS OF WORK DONE
BY THEM AFFECTS SAFETY OF OPERATION, REGARDLESS OF WHETHER OR NOT IN
ANY PARTICULAR WEEK THEY MAY HAVE DEVOTED MORE HOURS AND DAYS TO
ACTIVITIES NOT AFFECTING SAFETY OF OPERATION THAN THEY MAY HAVE DEVOTED
TO THOSE AFFECTING SUCH SAFETY OF OPERATION.  THE COMMISSION USES
SIMILAR LANGUAGE IN ASSERTING ITS JURISDICTION OVER MECHANICS AND
HELPERS.  THIS REASONING ALSO RESEMBLES THAT BY WHICH THE COMMISSION
IMPOSES UPON A "DRIVER" A MAXIMUM TOTAL OF 60 HOURS OF SERVICE "ON
DUTY" OF ANY KIND, IN A "WEEK" OF 168 CONSECUTIVE HOURS, AS WELL AS A
MAXIMUM OF 10 HOURS, IN THE AGGREGATE, OF DRIVING OR OPERATING OF A
MOTOR VEHICLE IN ANY PERIOD OF 24 CONSECUTIVE HOURS.  EX PARTE NO. MC
2, 3 M.C.C. 665, 6 M.C.C. 557, 11 M.C.C. 203.  FOR EXAMPLE, THE
COMMISSION HAS RECOGNIZED EXPRESSLY THAT, IN CHARTER OPERATIONS, THE
DRIVER OF A CHARTERED BUS MAY BE ON DUTY FOR LONG HOURS, BUT OFTEN MAY
SPEND AS LITTLE AS ONE-HALF OF THAT TIME ACTUALLY DRIVING.  EX PARTE
NO. MC-2, 3 M.C.C. 665, 679.  ALL OF THESE CONCLUSIONS RECOGNIZE THAT
AN EMPLOYEE WHO IS ENGAGED IN A CLASS OF WORK THAT AFFECTS SAFETY OF
OPERATION IS NOT NECESSARILY ENGAGED DURING EVERY HOUR OR EVERY DAY IN
ACTIVITIES THAT DIRECTLY AFFECT SAFETY OF OPERATION.  WHILE THE WORK OF
A FULL-DUTY DRIVER MAY AFFECT SAFETY OF OPERATION DURING ONLY THAT PART
OF THE TIME WHILE HE IS DRIVING, YET, AS A PRACTICAL MATTER, IT IS
ESSENTIAL TO ESTABLISH REASONABLE REQUIREMENTS WITH RESPECT TO HIS
QUALIFICATIONS AND ACTIVITIES AT ALL TIMES IN ORDER THAT THE SAFETY OF
OPERATION OF HIS TRUCK MAY BE PROTECTED DURING THOSE PARTICULAR HOURS
OR DAYS WHEN, IN THE COURSE OF HIS DUTIES AS ITS DRIVER, HE DOES THE
PARTICULAR ACTS THAT DIRECTLY AFFECT THE SAFETY OF ITS OPERATION. 
FN18 

WE HAVE SET FORTH THE COMMISSION'S RECORD OF SUPERVISION OVER THIS
FIELD OF SAFETY OF OPERATION TO DEMONSTRATE NOT ONLY THE EXTENT TO
WHICH THE COMMISSION SERVES CONGRESS IN SAFEGUARDING THE PUBLIC WITH
RESPECT TO QUALIFICATIONS, MAXIMUM HOURS OF SERVICE, SAFETY OF
OPERATION AND EQUIPMENT OF INTERSTATE MOTOR CARRIERS, BUT TO
DEMONSTRATE THE HIGH DEGREE OF ITS COMPETENCE IN THIS SPECIALIZED FIELD
WHICH JUSTIFIES RELIANCE UPON ITS FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. 

BEFORE EXAMINING FURTHER THE NEW ISSUE PRESENTED BY THE FACTS OF THIS
CASE, IT IS IMPORTANT TO RECOGNIZE THAT, BY VIRTUE OF THE UNIQUE
PROVISIONS OF SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT, WE ARE NOT
DEALING WITH AN EXCEPTION TO THAT ACT WHICH IS TO BE MEASURED BY
REGULATIONS WHICH CONGRESS HAS AUTHORIZED TO BE MADE BY THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT
OF LABOR.  FN19  INSTEAD, WE ARE DEALING HERE WITH THE INTERPRETATION
OF THE SCOPE OF THE SAFETY PROGRAM OF THE INTERSTATE COMMERCE
COMMISSION, UNDER SEC. 204 OF THE MOTOR CARRIER ACT, WHICH IN TURN IS
TO BE INTERPRETED IN THE LIGHT OF THE REGULATIONS MADE BY THE
INTERSTATE COMMERCE COMMISSION PURSUANT TO THAT ACT.  CONGRESS, IN THE
FAIR LABOR STANDARDS ACT, DOES NOT ATTEMPT TO IMPINGE UPON THE SCOPE OF
THE INTERSTATE COMMERCE COMMISSION SAFETY PROGRAM.  IT ACCEPTS THAT
PROGRAM AS EXPRESSIVE OF A PRE-EXISTING CONGRESSIONALLY APPROVED
PROJECT.  SECTION 13(B)(1) OF THE FAIR LABOR STANDARDS ACT THUS
REQUIRES THAT WE INTERPRET THE SCOPE OF SEC. 204 OF THE MOTOR CARRIER
ACT IN ACCORDANCE WITH THE PURPOSES OF THE MOTOR CARRIER ACT AND THE
REGULATIONS ISSUED PURSUANT TO IT.  IT IS ONLY TO THE EXTENT THAT THE
INTERSTATE COMMERCE COMMISSION DOES NOT HAVE POWER TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT TO SAID SEC. 204,
THAT THE SUBSEQUENT FAIR LABOR STANDARDS ACT HAS BEEN MADE APPLICABLE
OR ITS ADMINISTRATOR HAS BEEN GIVEN CONGRESSIONAL AUTHORITY TO ACT. 
THIS INTERPRETATION PUTS SAFETY FIRST, AS DID CONGRESS.  IT LIMITS THE
ADMINISTRATOR'S AUTHORITY TO THOSE "EMPLOYEES OF MOTOR CARRIERS WHOSE
ACTIVITIES DO NOT AFFECT THE SAFETY OF OPERATION."  NO. MC-C-139, 16
M.C.C. 497. 

ACCORDINGLY, WE SHOULD APPROACH THE ISSUE OF THE PARTIALDUTY DRIVER
AND THE PARTIAL-DUTY LOADER SQUARELY FROM THE POINT OF VIEW OF THE
SAFETY PROGRAM OF THE INTERSTATE COMMERCE COMMISSION, AS DEVELOPED
UNDER SEC. 204 OF THE MOTOR CARRIER ACT, APART FROM THE FAIR LABOR
STANDARDS ACT.  THE PRINCIPLE TO BE APPLIED IS THE SAME IN THE CASE OF
THE LOADER AS IN THAT OF THE DRIVER, ALTHOUGH THE ISSUE IS MORE OBVIOUS
WHEN THE TEST OF JURISDICTION IS APPLIED TO THE DRIVER THAN WHEN
APPLIED TO ANY OTHER CLASS OF EMPLOYEES OF THE MOTOR CARRIER.  THIS IS
BECAUSE THE DRIVER'S WORK MORE OBVIOUSLY AND DRAMATICALLY AFFECTS THE
SAFETY OF OPERATION OF THE CARRIER DURING EVERY MOMENT THAT HE IS
DRIVING THAN DOES THE WORK OF THE LOADER WHO LOADED THE FREIGHT WHICH
THE DRIVER IS TRANSPORTING.  FURTHERMORE, IN THE CASE OF THE DRIVER,
THE COMMISSION NOT ONLY HAS FOUND THAT IT HAS THE POWER TO ESTABLISH,
BUT IT ACTUALLY HAS ESTABLISHED, TESTED AND REVISED, A SET OF
QUALIFICATIONS FOR HIS SERVICE AND A MAXIMUM LIMITATION ON THE
AGGREGATE NUMBER OF HOURS DURING WHICH HE SAFELY MAY BE PERMITTED TO
DRIVE DURING ANY PERIOD OF 24 CONSECUTIVE HOURS.  IT ALSO HAS
ESTABLISHED A MAXIMUM LIMITATION ON THE NUMBER OF HOURS DURING ANY
"WEEK" OF 168 CONSECUTIVE HOURS DURING WHICH SUCH A DRIVER SAFELY MAY
BE PERMITTED TO BE "ON DUTY," EVEN THOUGH MANY OF HIS ACTIVITIES AND
MUCH OF HIS TIME WHILE "ON DUTY" MAY NOT AFFECT SAFETY OF OPERATION OF
THE CARRIER.  FN20 

IN THE PRESENT CASE, THE ISSUE IS WHETHER THE COMMISSION HAS THE
POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE WITH
RESPECT TO PARTIAL-DUTY LOADERS COMPARABLE TO THE PETITIONER.  IT IS
NOT NECESSARY, AS A CONDITION PRECEDENT, TO FIND THAT THE COMMISSION
HAS EXERCISED, OR SHOULD EXERCISE, SUCH POWER BY ACTUALLY ESTABLISHING
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE WITH RESPECT TO LOADERS IN
GENERAL, CORRESPONDING TO THOSE ESTABLISHED FOR DRIVERS IN GENERAL. 
THE EXISTENCE OF THE POWER IS ENOUGH.  THE FACT THAT THE COMMISSION HAS
FOUND IT NECESSARY TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE WHICH COVER NOT ONLY DRIVERS, BUT ALSO PARTIALDUTY DRIVERS, IS
AN INDICATION THAT, IN THE OPINION OF THE COMMISSION, ITS POWER, UNDER
THE MOTOR CARRIER ACT, EXTENDS TO PARTIAL-DUTY AS WELL AS TO FULL-DUTY
EMPLOYEES ENGAGED IN ACTIVITIES AFFECTING THE SAFETY OF OPERATION OF
INTERSTATE MOTOR CARRIERS. 

THE PRINCIPLE CAN BE TESTED BY THE USE OF A PARTIAL-DUTY DRIVER AS AN
EXAMPLE.  HIS ACTIVITIES ARE SUCH THAT THE EXCLUSION OF THEM FROM THE
COMMISSION'S SAFETY PROGRAM WOULD HAVE SERIOUS CONSEQUENCES.  IN THE
CASE OF THE FULL-DUTY DRIVER, THERE IS NO QUESTION AS TO THE POWER OF
THE COMMISSION TO ESTABLISH REASONABLE REQUIREMENTS WITH RESPECT TO HIS
QUALIFICATIONS AND HOURS OF SERVICE.  FN21  REGULATIONS ON THESE
SUBJECTS WERE IN EFFECT THROUGHOUT THE PERIOD WITH WHICH THIS CASE IS
CONCERNED.  IN THE CLASS OF WORK REFERRED TO BY THE COMMISSION AS THAT
OF DRIVER-SALESMEN OF INDUSTRY TRUCKS, THE REGULATIONS WHICH HAVE BEEN
ISSUED HAVE BEEN MENTIONED ABOVE.  FN22  THESE WERE ADAPTED EXPRESSLY
TO DRIVERS WHO DEVOTED LESS THAN 50% OF THEIR TIME TO DRIVING.  THE
EFFECT THUS GIVEN BY THE COMMISSION TO THE FACT THAT SUCH EMPLOYEES
DEVOTE LESS THAN ONE-HALF OF THEIR TIME TO DRIVING IS NOT TO EXCLUDE
SUCH PARTIAL-DUTY DRIVERS FROM ANY OF ITS REQUIRED QUALIFICATIONS. 
THESE QUALIFICATIONS INCLUDE THOSE RELATING TO EYESIGHT, PHYSICAL
CONDITION, AGE, OR ABILITY TO READ OR SPEAK ENGLISH, ETC., WHICH ARE
DEEMED BY IT TO BE IMPORTANT FOR DRIVERS IN GENERAL.  ON THE OTHER
HAND, THIS FACT THAT CERTAIN EMPLOYEES DEVOTE A PART, RATHER THAN ALL,
OF THEIR TIME TO DRIVING HAS BROUGHT FORTH FROM THE COMMISSION AN
APPROPRIATE MODIFICATION OF ITS SAFETY REGULATIONS TO FIT THAT FACT. 
THE MODIFICATION TAKES THE FORM OF ELIMINATING THE COMMISSION'S
LIMITATION ON THE TOTAL MAXIMUM HOURS THAT THE EMPLOYEE CAN REMAIN ON
DUTY IN A WEEK OF 168 CONSECUTIVE HOURS BUT LIMITING HIS HOURS OF
ACTUAL DRIVING TO AN AGGREGATE OF NOT MORE THAN 50 IN ANY SUCH WEEK. 
THIS REQUIREMENT, ESTABLISHED BY THE AGENCY WHICH IS RECOGNIZED BY
CONGRESS AS THE ONE BODY AUTHORIZED TO ESTABLISH QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE APPLICABLE TO DRIVERS OF MOTOR CARRIERS IN
INTERSTATE COMMERCE, IS A DEMONSTRATION THAT SUCH AGENCY HAS FOUND IT
NECESSARY TO MAKE ACTIVE USE OF ITS POWERS OF REGULATION IN THIS FIELD
OF PART-TIME DRIVING.  IT FOLLOWS, AS A MATTER OF PRINCIPLE, THAT, IF
SUCH POWER EXISTS WITH RESPECT TO FULL-DUTY DRIVERS AND PARTIAL-DUTY
DRIVERS BECAUSE THEY AFFECT THE SAFETY OF OPERATION OF THE INTERSTATE
MOTOR CARRIERS, THE POWER EXISTS ALSO WITH RESPECT TO FULL-DUTY LOADERS
AND PARTIAL-DUTY LOADERS BECAUSE THEY TOO AFFECT SUCH SAFETY OF
OPERATION, ALTHOUGH NOT IN PRECISELY THE SAME MANNER. 

FROM A SAFETY STANDPOINT, A PARTIAL-DUTY DRIVER WHO DRIVES 30 HOURS
CONTINUOUSLY AND THEN DRIVES NO MORE DURING THAT WEEK CREATES A GREATER
HAZARD THAN THE MAN WHO DRIVES 10 HOURS DAILY FOR 6 DAYS A WEEK.  THE
HAZARD OF CONTINUOUS DRIVING IS NOT MEASURED ADEQUATELY BY THE TOTAL
HOURS DURING WHICH THE DRIVER IS EMPLOYED DURING THE WEEK, NOR IS IT
ELIMINATED BY A LAW WHICH ENTITLES HIM MERELY TO AN INCREASED RATE OF
PAY FOR WHATEVER TIME, ABOVE 40 HOURS PER WEEK, HE SHALL WORK IN ANY
ONE WORKWEEK.  THE LOADING OF ANY TRUCK LOAD OF MIXED FREIGHT REQUIRES
THAT THE GENERAL QUALIFICATIONS OF THE LOADER BE ADEQUATE, REGARDLESS
OF THE PROPORTION OF HIS WORKING TIME THAT MAY HAVE BEEN DEVOTED TO
THIS ACTIVITY OR TO OTHER ACTIVITIES IN THAT PARTICULAR WEEK. 
SIMILARLY, HIS HOURS OF CONTINUOUS WORK DURING A DAY OF HEAVY LOADING
MAY RENDER HIM UNFIT FOR LOADING THE LAST TRUCK ON THAT DAY EVEN
THOUGH, FOR THE ENTIRE BALANCE OF THAT WEEK, HE MAY ENGAGE IN NO
ACTIVITIES WHATEVER OR MAY ENGAGE IN ONLY SUCH ACTIVITIES AS ARE
UNRELATED TO SAFETY OF OPERATION. 

WE HAVE IN THIS CASE AN EMPLOYEE WORKING FULL TIME THROUGHOUT HIS
EMPLOYMENT AS A "CHECKER" OR "TERMINAL FOREMAN."  IF HE HAD WORKED FULL
TIME AS A "LOADER" AS DEFINED BY THE COMMISSION, HE WOULD HAVE BEEN
UNQUESTIONABLY WITHIN THE JURISDICTION OF THE COMMISSION TO THE EXTENT
NECESSARY TO EXCLUDE HIM FROM SEC. 7 OF THE FAIR LABOR STANDARDS ACT. 
UNDER THE CONCLUSIONS OF LAW OF THE COMMISSION IN EX PARTE NO. MC-2, 28
M.C.C. 125, 139, A FULL-DUTY "LOADER" DOES NOT HAVE TO DEVOTE MORE THAN
A "SUBSTANTIAL PART" OF HIS TIME TO ACTIVITIES DIRECTLY AFFECTING
SAFETY OF OPERATION IN ORDER TO BE SUBJECT TO THE POWER OF THE
COMMISSION TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE
WITH RESPECT TO HIM.  SO HERE IT IS ENOUGH FOR THE PURPOSES OF THIS
CASE THAT A SUBSTANTIAL PART OF THE PETITIONER'S ACTIVITIES CONSISTED
OF THE DOING OR IMMEDIATE DIRECTION OF THE VERY KIND OF ACTIVITIES OF A
LOADER THAT ARE DESCRIBED BY THE COMMISSION AS DIRECTLY AFFECTING
SAFETY OF OPERATION.  THE PETITIONER'S ACTIVITIES THUS AFFECTED SAFETY
OF OPERATION, ALTHOUGH IT DOES NOT APPEAR WHAT FRACTION OF HIS TIME WAS
SPENT IN ACTIVITIES AFFECTING SAFETY OF OPERATION.  AS A CONSEQUENCE,
HE COMES WITHIN THE POWER OF THE COMMISSION TO ESTABLISH QUALIFICATIONS
AND MAXIMUM HOURS OF SERVICE WITH RESPECT TO HIM AND, BY THE EXPRESS
TERMS OF SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT, HE IS EXCLUDED,
AUTOMATICALLY, FROM THE BENEFITS OF SEC. 7 OF THAT ACT. 

RECOGNIZING THAT IT IS THE INTENT OF THE FAIR LABOR STANDARDS ACT TO
GIVE FULL RECOGNITION TO THE SAFETY PROGRAM OF THE MOTOR CARRIER ACT,
THIS CONCLUSION DOES NOT CONFLICT WITH THE MEANING OR PURPOSE OF THE
FAIR LABOR STANDARDS ACT, ALTHOUGH IT DOES REDUCE THE SCOPE OF
APPLICATION OF THE COMPULSORY OVERTIME COMPENSATION PROVISIONS OF SEC.
7 OF THAT ACT. 

THE CONTRARY POSITION WHICH HAS BEEN TAKEN AS TO PARTIAL-DUTY
DRIVERS, MECHANICS, LOADERS AND HELPERS BY THE ADMINISTRATOR OF THE
WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, REQUIRES
MENTION.  THIS POSITION NO DOUBT AROSE FROM A DESIRE TO GIVE WIDE
EFFECT TO THE FAIR LABOR STANDARDS ACT IN AN EFFORT TO COMPLY WITH ITS
REMEDIAL CHARACTER.  GENERALLY, AN EXPANSION OF THE JURISDICTION OF THE
ACT DOES NOT CONFLICT WITH JURISDICTIONS ESTABLISHED UNDER OTHER ACTS
OF CONGRESS, WHEREAS HERE EVERY EXPANSION OF THE JURISDICTION OF THE
ACT THROUGH INTERPRETATION OF SEC. 13(B)(1) CUTS DOWN THE JURISDICTION
OF THE COMMISSION UNDER SEC. 204 OF THE MOTOR CARRIER ACT. 
FURTHERMORE, IN SEEKING A PRACTICAL METHOD OF RESOLVING OTHER
ADMINISTRATIVE DIFFICULTIES SUCH AS THAT OF DETERMINING THE DEGREE OF
INTERSTATE ACTIVITY OR ADMINISTRATIVE SERVICE WHICH SHOULD BE THE
MEASURE OF THE JURISDICTION OF THE ACT OR OF EXEMPTION FROM IT, THE
ADMINISTRATOR HAS FOUND IT PRACTICAL TO FIX UPON A SPECIFIC PROPORTION
OF TIME DEVOTED TO A PARTICULAR KIND OF ACTIVITY AND TO MAKE THAT
PROPORTION DECISIVE.  IN SOME INSTANCES, IN REGULATIONS, HE HAS USED
20% AS A TEST OF SUBSTANTIALITY.  FN23 

IN AN ATTEMPT TO RESOLVE THE PRESENT DIFFICULTY IN A SIMILAR MANNER,
THE ADMINISTRATOR AT ONE TIME PROPOSED THAT, IF AN EMPLOYEE IN ANY
GIVEN WEEK DEVOTED 20% OR MORE OF HIS TIME TO ACTIVITIES NOT AFFECTING
SAFETY OF OPERATION, HE WOULD BE ENTITLED TO THE BENEFITS OF THE
OVERTIME PROVISIONS OF SEC. 7 OF THE FAIR LABOR STANDARDS ACT.  FN24
HE SOON ABANDONED THIS, BUT HE HAS ATTEMPTED TO ANSWER THE QUESTION ON
A 50% BASIS IN INTERPRETATIVE BULLETIN NO. 9, WAGE AND HOUR DIVISION,
OFFICE OF THE ADMINISTRATOR, NOVEMBER, 1943, 1944-1945 WH MAN.  520,
523, AS FOLLOWS: 

"4.... 

"(B)  IT SHOULD BE NOTED THAT ANY TRUCK DRIVER, DRIVERS' HELPER,
MECHANIC, OR LOADER EMPLOYED BY A COMMON, CONTRACT, OR PRIVATE CARRIER
WHO SPENDS THE GREATER PART OF HIS TIME DURING ANY WORKWEEK ON
NONEXEMPT ACTIVITIES (SUCH AS PRODUCING, PROCESSING, OR MANUFACTURING
GOODS, WAREHOUSE OR CLERICAL WORK, OR OTHER TYPE OF WORK WHICH DOES NOT
AFFECT SAFETY OF OPERATIONS) IS NOT WITHIN THE SCOPE OF THE EXEMPTION
CONTAINED IN SECTION 13(B)(1).  IT IS THE OPINION OF THE DIVISION THAT
CONGRESS DID NOT INTEND THAT THIS EXEMPTION SHOULD BE AVAILABLE AS A
VEHICLE TO EXEMPT EMPLOYEES WHO SPEND MOST OF THEIR TIME IN WORK OTHER
THAN THAT WHICH FORMS THE BASIS OF THE EXEMPTION." 

IN PARAGRAPH 2 OF THIS BULLETIN HE RECOGNIZES THE LIMITED LEGAL
EFFECT TO WHICH THIS INTERPRETATION IS ENTITLED, ESPECIALLY INSOFAR AS
IT CONCERNS THE MEANING OF SEC. 204 OF THE MOTOR CARRIER ACT.  FN25 

SUCH AN INTERPRETATION CONFLICTS, HOWEVER, WITH THE COMMISSION'S
SAFETY PROGRAM.  IT CONFLICTS DIRECTLY, FOR EXAMPLE, WITH THE
REGULATION OF THE COMMISSION AS TO PARTIAL-DUTY DRIVERS OF INDUSTRY
TRUCKS OF PRIVATE CARRIERS IN INTERSTATE COMMERCE.  FN26 

THE FUNDAMENTAL AND EVER-RECURRING DIFFICULTY WITH THE
ADMINISTRATOR'S INTERPRETATION OF THE SCOPE OF SEC. 7 OF THE FAIR LABOR
STANDARDS ACT IS THAT TO THE EXTENT THAT HE EXPANDS THE JURISDICTION OF
THE FAIR LABOR STANDARDS ACT HE MUST REDUCE THE JURISDICTION OF THE
COMMISSION UNDER THE MOTOR CARRIER ACT, WHEREAS HE HAS NO AUTHORITY TO
DO SO.  FN27 

OUR CONCLUSION IS THAT, UNDER THE MOTOR CARRIER ACT, THE INTERSTATE
COMMERCE COMMISSION HAS POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE FOR THOSE EMPLOYEES WHOSE SERVICE AFFECTS THE SAFETY
OF TRANSPORTATION OF COMMON CARRIERS, CONTRACT CARRIERS OR PRIVATE
CARRIERS OF PROPERTY IN INTERSTATE AND FOREIGN COMMERCE; THAT SUCH
COMMISSION HAS BEEN CHARGED WITH THE ADMINISTRATION AND ENFORCEMENT OF
THAT ACT; AND THAT IN THE COURSE OF PERFORMANCE OF ITS DUTIES AND AFTER
EXTENDED HEARINGS ON THE SUBJECT, IT HAS FOUND THAT THE WORK OF
LOADERS, AS DEFINED BY IT, AFFECTS SAFETY OF MOTOR CARRIER OPERATION. 
FURTHERMORE, WE CONCLUDE, UPON THE FINDINGS OF THE LOWER COURTS IN THIS
CASE, THAT THE PETITIONER WAS EMPLOYED BY A MOTOR CARRIER OF INTERSTATE
FREIGHT WITHIN THE MEANING OF THE MOTOR CARRIER ACT AND THAT,
THROUGHOUT THE PERIOD AT ISSUE, A SUBSTANTIAL PART OF HIS ACTIVITIES
CONSISTED OF DOING, OR IMMEDIATELY DIRECTING, THE WORK OF ONE OR MORE
LOADERS AS DEFINED BY THE INTERSTATE COMMERCE COMMISSION AND AFFECTING
THE SAFETY OF OPERATION OF MOTOR VEHICLES IN INTERSTATE OR FOREIGN
COMMERCE; THAT, ACCORDINGLY, THE COMMISSION, WITH RESPECT TO HIM, HAD
POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE; AND
THAT, BY VIRTUE OF SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT, THE
PROVISIONS OF SEC. 7 OF THAT ACT AS TO OVERTIME PAY WERE RENDERED
INAPPLICABLE TO HIM.  THE JUDGMENT OF THE SUPREME COURT OF ILLINOIS
THEREFORE IS AFFIRMED. 

FN1  THE MATERIAL PARTS OF SEC. 204 ARE: 

"SEC. 204(A) IT SHALL BE THE DUTY OF THE COMMISSION - 

"(1)  TO REGULATE COMMON CARRIERS BY MOTOR VEHICLE AS PROVIDED IN
THIS PART, AND TO THAT END THE COMMISSION MAY ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO CONTINUOUS AND ADEQUATE SERVICE,
TRANSPORTATION OF BAGGAGE AND EXPRESS, UNIFORM SYSTEMS OF ACCOUNTS,
RECORDS, AND REPORTS, PRESERVATION OF RECORDS, QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND
EQUIPMENT. 

"(2)  TO REGULATE CONTRACT CARRIERS BY MOTOR VEHICLE AS PROVIDED IN
THIS PART, AND TO THAT END THE COMMISSION MAY ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO UNIFORM SYSTEMS OF ACCOUNTS, RECORDS, AND
REPORTS, PRESERVATION OF RECORDS, QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND EQUIPMENT. 

"(3)  TO ESTABLISH FOR PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE,
IF NEED THEREFOR IS FOUND, REASONABLE REQUIREMENTS TO PROMOTE SAFETY OF
OPERATION, AND TO THAT END PRESCRIBE QUALIFICATIONS AND MAXIMUM HOURS
OF SERVICE OF EMPLOYEES, AND STANDARDS OF EQUIPMENT  ...."  49 STAT.
546, 49 U.S.C. SEC. 304(A)(1), (2) AND (3). 

FN2  "(2)  LOADERS.  -  ... 

"THE LARGE CARRIERS,  ...  PARTICULARLY THOSE WHO HAVE IMPORTANT
OPERATIONS FROM TERMINAL TO TERMINAL, EMPLOY MEN VARIOUSLY CALLED
LOADERS, DOCKMEN, OR HELPERS, AND HEREINAFTER CALLED LOADERS, WHOSE
SOLE DUTIES ARE TO LOAD AND UNLOAD MOTOR VEHICLES AND TRANSFER FREIGHT
BETWEEN MOTOR VEHICLES AND BETWEEN THE VEHICLES AND THE WAREHOUSE. 

"THE EVIDENCE MAKES IT ENTIRELY CLEAR THAT A MOTOR VEHICLE MUST BE
PROPERLY LOADED TO BE SAFELY OPERATED ON THE HIGHWAYS OF THE COUNTRY. 
IF MORE WEIGHT IS PLACED ON ONE SIDE OF THE VEHICLE THAN ON THE OTHER,
THERE IS A TENDENCY TO TIP WHEN ROUNDING CURVES.  IF MORE WEIGHT IS
PLACED IN THE REAR OF THE VEHICLE, THE TENDENCY IS TO RAISE THE FRONT
WHEELS AND MAKE SAFE OPERATION DIFFICULT.  FURTHER, IT IS NECESSARY
THAT THE LOAD BE DISTRIBUTED PROPERLY OVER THE AXLES OF THE MOTOR
VEHICLE. 

"PROPER LOADING IS NOT ONLY NECESSARY WHEN HEAVY MACHINERY, STEEL,
AND OTHER LIKE COMMODITIES ARE BEING TRANSPORTED, BUT IS OF IMPORTANCE
WHEN NORMAL PACKAGE FREIGHT IS HANDLED.  IF SEVERAL PACKING CASES
WEIGHING FROM 150 TO 200 POUNDS ARE LOADED ON ONE SIDE OF A MOTOR
VEHICLE OR AT ONE END THEREOF, AND LIGHTER FREIGHT ON THE OTHER SIDE OR
AT THE OTHER END, SAFE OPERATION IS DIFFICULT.  THE GREAT MAJORITY, IF
NOT ALL, OF THE CARRIERS WHOSE OPERATIONS ARE OF SUFFICIENT SIZE OR
CHARACTER TO JUSTIFY THE EMPLOYMENT OF LOADERS HANDLE FREIGHT OF SUCH
WEIGHT THAT PROPER LOADING IS NECESSARY."  EX PARTE NO. MC-2, 28 M.C.C.
125, 133-134. 

FN3  THROUGHOUT THIS CASE IT HAS BEEN RECOGNIZED THAT IT WAS WITHIN
THE POWER OF THE COMMISSION TO ESTABLISH THE QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE FOR THE REGULAR "LOADERS" WHO SERVED UNDER THE
IMMEDIATE DIRECTION OF THE PETITIONER.  NO CLAIM HAS BEEN MADE ON THEIR
BEHALF TO THE BENEFITS OF SEC. 7 OF THE FAIR LABOR STANDARDS ACT.  THE
PRESENT CONTROVERSY IS LIMITED TO THE STATUS OF THE PETITIONER
HIMSELF.  HIS STATUS IS REFERRED TO THROUGHOUT THIS OPINION AS THAT OF
A "PARTIAL-DUTY LOADER," EXCEPT WHERE HE IS REFERRED TO BY HIS OWN
DESIGNATION OF HIMSELF AS A "CHECKER" OR "TERMINAL FOREMAN."  THE TERM
"PARTIAL-DUTY LOADER" IS USED IN PREFERENCE TO THAT OF "PART-TIME
LOADER," SO AS TO AVOID THE IMPLICATION THAT TIME SPENT IN CERTAIN
ACTIVITIES, RATHER THAN THE CHARACTER OF THOSE ACTIVITIES, IS TO BE THE
CONCLUSIVE FACTOR IN DECIDING WHETHER OR NOT THE INDIVIDUAL IS SUBJECT
TO THE JURISDICTION OF THE COMMISSION. 

FN4  "SEC.  13.... 

"(B)  THE PROVISIONS OF SECTION 7 SHALL NOT APPLY WITH RESPECT TO (1)
ANY EMPLOYEE WITH RESPECT TO WHOM THE INTERSTATE COMMERCE COMMISSION
HAS POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE
PURSUANT TO THE PROVISIONS OF SECTION 204 OF THE MOTOR CARRIER ACT,
1935; ..."  52 STAT. 1068, 29 U.S.C. SEC. 213(B)(1). 

FN5  "SEC.  7.  (A)  NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED
IN THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE
OR IN THE PRODUCTION OF GOODS FOR COMMERCE - 

"(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION, 

"(2)  FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND
YEAR FROM SUCH DATE, OR 

"(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED
AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT
WHICH HE IS EMPLOYED."  52 STAT. 1063, 29 U.S.C. SEC. 207(A).    FN6
"SEC.  16.... 

"(B)  ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF  ...  SECTION 7 OF
THIS ACT SHALL BE LIABLE TO THE EMPLOYEE OR EMPLOYEES AFFECTED IN THE
AMOUNT OF  ...  THEIR UNPAID OVERTIME COMPENSATION, ...  AND IN AN
ADDITIONAL EQUAL AMOUNT AS LIQUIDATED DAMAGES....  THE COURT IN SUCH
ACTION SHALL, IN ADDITION TO ANY JUDGMENT AWARDED TO THE PLAINTIFF OR
PLAINTIFFS, ALLOW A REASONABLE ATTORNEY'S FEE TO BE PAID BY THE
DEFENDANT, AND COSTS OF THE ACTION."  52 STAT. 1069, 29 U.S.C. SEC.
216(B). 

FN7  SEE NOTE 2 FOR THE COMMISSION'S GENERAL DEFINITION OF THE WORK
OF "LOADERS."  THE APPELLATE COURT OF ILLINOIS DESCRIBED THE
PETITIONER'S ACTIVITIES AS FOLLOWS:  "PLAINTIFF (PETITIONER) CONTENDS
HE IS A CHECKER, NOT A LOADER, AND THEREFORE, NOT WITHIN THE
COMMISSION'S INTERPRETATION.  WE BELIEVE THAT HIS DUTIES - NOT THE NAME
GIVEN HIS POSITION - ARE DETERMINATIVE.... 

"DEFENDANT TERMINAL AT 600 WEST 25TH STREET, CHICAGO, IS THE SCENE OF
THREE PHASES OF MOTOR CARRIER BUSINESS - INBOUND FREIGHT, OUTBOUND
FREIGHT AND LOCAL FREIGHT.  TRUCKS CARRYING FREIGHT ORIGINATING LOCALLY
AND IN FOREIGN CITIES AND STATES, ARE UNLOADED BY GANGS OF DEFENDANT'S
EMPLOYEES.  A GANG USUALLY CONSISTS OF 3 OR 4 MEN - A CHECKER, CALLER,
SORTER AND PACKER.  THE CHECKER DIRECTS THE GANG'S OPERATION.  DAY AND
NIGHT FOREMEN SUPERVISE THE ACTIVITIES OF ALL THE GANGS.  INCOMING
FREIGHT IS UNLOADED AND DEPOSITED ACCORDING TO ITS DESTINATION ON THE
DOCK IN VARIOUS SECTIONS AT THE DIRECTION OF THE CHECKER; LIKEWISE
UNDER THE DIRECTION OF THE CHECKER, IT IS REMOVED FROM THESE SECTIONS
AND LOADED ON APPROPRIATE OUTGOING TRUCKS.  IT IS LOADED ACCORDING TO
SIZE AND WEIGHT; HEAVY WEIGHTED OR 'BOTTOM FREIGHT' BEING DISTRIBUTED
IN THE LOWER PART OF THE TRUCK AND LIGHTER WEIGHTED OR 'BALLOON
FREIGHT' IS PLACED AT THE TOP.  THIS PLAN IS FOLLOWED IN THE INTEREST
OF SAFETY OF EQUIPMENT AND OF FREIGHT.  TESTIMONY PERTINENT TO THE
ISSUE ON THE MERITS IS THAT, AS CHECKER, PLAINTIFF SUPERVISED AND
DIRECTED THE UNLOADING AND DISPOSITION OF INCOMING FREIGHT AND THE
COLLECTING AND LOADING OF THE OUTGOING FREIGHT AND THAT HE WATCHED THE
DISPOSITION OF THE WEIGHT OF THE FREIGHT IN LOADING.  THE DISPUTE IN
THE TESTIMONY ARISES AS TO THE QUANTITY OF PLAINTIFF'S ACTIVITIES
DEVOTED TO THESE PARTICULAR DUTIES.  PLAINTIFF SAYS THAT MOST OF THE
OUTBOUND FREIGHT WAS HANDLED AT NIGHT, WHILE HE WORKED MOSTLY DAYS;
THAT NOT MUCH LOADING WAS DONE DURING HIS HOURS, BUT THAT, WHATEVER
TOOK PLACE, WAS UNDER HIS DIRECT CHARGE.  THE DEFENSE TESTIMONY IS THAT
INBOUND AND OUTBOUND FREIGHT WAS EQUALLY DIVIDED DURING THE DAY -
INBOUND USUALLY DURING THE NIGHT AND OUTBOUND BETWEEN 8 A.M. AND
MIDNIGHT. 

"...  THERE IS NO QUESTION THAT SOME PART OF PLAINTIFF'S WORK WEEK
WAS DEVOTED TO THE DIRECTION AND SUPERVISION OF THE LOADING OF
INTERSTATE MOTOR FREIGHT CARRIERS.  THERE IS NO QUESTION EITHER THAT
THE IN HIS GANG WERE EXEMPTED FROM SECTION 7 OF THE FAIR LABOR
STANDARDS ACT.  WE THINK, THEREFORE, THAT WITH GREATER FORCE, PLAINTIFF
COMES WITHIN THE EXEMPTION FOR, IF THE LOADERS ARE EXEMPT BECAUSE THE
MANNER IN WHICH THEY WORK AFFECTS THE SAFETY OF THE OPERATION OF
DEFENDANT'S MOTOR VEHICLES, CERTAINLY THE DUTIES OF PLAINTIFF, WHO
PLANNED AND DIRECTED THE LOADING, AFFECT THAT SAFETY.  CONSIDERING THE
PURPOSE OF THE MOTOR CARRIERS ACT, WE BELIEVE THAT THE TRUE DETERMINANT
IS WHETHER AN EMPLOYEE PERFORMS ANY DUTIES WHICH SUBSTANTIALLY AFFECT
THE SAFETY OF OPERATION, RATHER THAN WHETHER THE DUTIES AFFECTING
SAFETY ARE SUBSTANTIAL."  LEVINSON V. SPECTOR MOTOR SERVICE, 323 ILL.
APP. 505, 507, 508-509, 56 N.E.2D 142, 143, 144. 

THE SUPREME COURT OF ILLINOIS SAID: 

"WE THINK THE QUESTION OF FACT TO BE PROPERLY DETERMINED IN THIS CASE
IS WHETHER OR NOT A SUBSTANTIAL PART OF PLAINTIFF'S WORK AFFECTS SAFETY
OF OPERATION OF MOTOR VEHICLES, AND THAT THIS QUESTION OF FACT CONTROLS
THIS CASE.  IF IT BE DETERMINED FROM THE EVIDENTIARY FACTS THAT
PLAINTIFF, IN A SUBSTANTIAL PART OF HIS WORK, WAS ENGAGED IN SAFETY OF
OPERATION OF MOTOR VEHICLES, OR THE CARGO THEREOF, HE WOULD BE EXEMPTED
FROM THE FAIR LABOR STANDARDS ACT, AS A MATTER OF LAW. 

     .         .         .         .         . 

"...  UNDER THE FACTS AS FOUND BY THE (APPELLATE) COURT, THE EMPLOYEE
CAME WITHIN THE SAME EXEMPTION AS LOADERS, DOCKMEN AND HELPERS." 
LEVINSON V. SPECTOR MOTOR SERVICE, 389 ILL. 466, 473-474, 59 N.E.2D
817, 820. 

FN8  THE SAFETY APPLIANCE ACTS, APPROVED MARCH 2, 1893, 27 STAT. 531;
MARCH 2, 1903, 32 STAT. 943; APRIL 14, 1910, 36 STAT. 298; AND FEBRUARY
28, 1920, 41 STAT. 499; SEE TITLE 45, U.S.C. - RAILROADS, AND 49 U.S.C.
SEC. 26, ALL RELATE TO RAILROADS AND ARE ENFORCED BY THE INTERSTATE
COMMERCE COMMISSION. 

THE HOURS OF SERVICE ACT, APPROVED MARCH 4, 1907, 34 STAT. 1415, 45
U.S.C. SEC. 61, REQUIRES THE INTERSTATE COMMERCE COMMISSION TO ENFORCE
MAXIMUM HOURS OF SERVICE FOR RAILROAD EMPLOYEES ENGAGED IN THE MOVEMENT
OF TRAINS.  IT INCLUDES ALSO OPERATORS, TRAIN DISPATCHERS AND OTHERS
HAVING MUCH TO DO WITH THE SAFETY OF TRAIN MOVEMENTS ALTHOUGH NOT
RIDING THE TRAINS. 

THE SEAMEN'S ACT, APPROVED MARCH 4, 1915, 38 STAT. 1164, SEE 46
U.S.C. SEC. 673, PRESCRIBES MAXIMUM HOURS OF SERVICE AT SEA AND AT
ANCHOR FOR SAILORS, FIREMEN, OILERS AND OTHERS ENGAGED IN SAILING OR
MANAGING VESSELS.  IT ESTABLISHES QUALIFICATIONS FOR SEAMEN AND
PRESCRIBES CREW REQUIREMENTS, SAFETY EQUIPMENT AND SANITARY FACILITIES
FOR CERTAIN TYPES OF VESSELS. 

FN9  "SEC.  203.... 

"(B)  NOTHING IN THIS PART, EXCEPT THE PROVISIONS OF SECTION 204
RELATIVE TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES
AND SAFETY OF OPERATION OR STANDARDS OF EQUIPMENT SHALL BE CONSTRUED TO
INCLUDE (1) MOTOR VEHICLES EMPLOYED SOLELY IN TRANSPORTING SCHOOL
CHILDREN AND TEACHERS TO OR FROM SCHOOL; OR (2) TAXICABS, OR OTHER
MOTOR VEHICLES PERFORMING A BONA FIDE TAXICAB SERVICE, HAVING A
CAPACITY OF NOT MORE THAN SIX PASSENGERS AND NOT OPERATED ON A REGULAR
ROUTE OR BETWEEN FIXED TERMINI; OR (3) MOTOR VEHICLES OWNED OR OPERATED
BY OR ON BEHALF OF HOTELS AND USED EXCLUSIVELY FOR THE TRANSPORTATION
OF HOTEL PATRONS BETWEEN HOTELS AND LOCAL RAILROAD OR OTHER COMMON
CARRIER STATIONS; OR (4) MOTOR VEHICLES OPERATED, UNDER AUTHORIZATION,
REGULATION, AND CONTROL OF THE SECRETARY OF THE INTERIOR, PRINCIPALLY
FOR THE PURPOSE OF TRANSPORTING PERSONS IN AND ABOUT THE NATIONAL PARKS
AND NATIONAL MONUMENTS; OR (4A) MOTOR VEHICLES CONTROLLED AND OPERATED
BY ANY FARMER, AND USED IN THE TRANSPORTATION OF HIS AGRICULTURAL
COMMODITIES AND PRODUCTS THEREOF, OR IN THE TRANSPORTATION OF SUPPLIES
TO HIS FARM; OR (4B) MOTOR VEHICLES CONTROLLED AND OPERATED BY A
COOPERATIVE ASSOCIATION AS DEFINED IN THE AGRICULTURAL MARKETING ACT,
APPROVED JUNE 15, 1929, AS AMENDED; OR (5) TROLLEY BUSSES OPERATED BY
ELECTRIC POWER DERIVED FROM A FIXED OVERHEAD WIRE, FURNISHING LOCAL
PASSENGER TRANSPORTATION SIMILAR TO STREET-RAILWAY SERVICE; OR (6)
MOTOR VEHICLES USED EXCLUSIVELY IN CARRYING LIVESTOCK, FISH (INCLUDING
SHELL FISH), OR AGRICULTURAL COMMODITIES (NOT INCLUDING MANUFACTURED
PRODUCTS THEREOF); OR (7) MOTOR VEHICLES USED EXCLUSIVELY IN THE
DISTRIBUTION OF NEWSPAPERS; NOR, UNLESS AND TO THE EXTENT THAT THE
COMMISSION SHALL FROM TIME TO TIME FIND THAT SUCH APPLICATION IS
NECESSARY TO CARRY OUT THE POLICY OF CONGRESS ENUNCIATED IN SECTION
202, SHALL THE PROVISIONS PART, EXCEPT THE PROVISIONS OF SECTION 204
RELATIVE TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES
AND SAFETY OF OPERATION OR STANDARDS OF EQUIPMENT APPLY TO:  (8) THE
TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OR FOREIGN
COMMERCE WHOLLY WITHIN A MUNICIPALITY OR BETWEEN CONTIGUOUS
MUNICIPALITIES OR WITHIN A ZONE ADJACENT TO AND COMMERCIALLY A PART OF
ANY SUCH MUNICIPALITY OR MUNICIPALITIES, EXCEPT WHEN SUCH
TRANSPORTATION IS UNDER A COMMON CONTROL, MANAGEMENT, OR ARRANGEMENT
FOR A CONTINUOUS CARRIAGE OR SHIPMENT TO OR FROM A POINT WITHOUT SUCH
MUNICIPALITY, MUNICIPALITIES, OR ZONE, AND PROVIDED THAT THE MOTOR
CARRIER ENGAGED IN SUCH TRANSPORTATION OF PASSENGERS OVER REGULAR OR
IRREGULAR ROUTE OR ROUTES IN INTERSTATE COMMERCE IS ALSO LAWFULLY
ENGAGED IN THE INTRASTATE TRANSPORTATION OF PASSENGERS OVER THE ENTIRE
LENGTH OF SUCH INTERSTATE ROUTE OR ROUTES IN ACCORDANCE WITH THE LAWS
OF EACH STATE HAVING JURISDICTION; OR (9) THE CASUAL, OCCASIONAL, OR
RECIPROCAL TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OR
FOREIGN COMMERCE FOR COMPENSATION BY ANY PERSON NOT ENGAGED IN
TRANSPORTATION BY MOTOR VEHICLE AS A REGULAR OCCUPATION OR BUSINESS." 
49 STAT. 545, 49 U.S.C. SEC. 303(B). 

FN10  A NEW SEC. 202(C) WAS INSERTED IN THE MOTOR CARRIER ACT BY THE
TRANSPORTATION ACT OF 1940, 54 STAT. 920, SO AS TO EXCLUDE FROM THE
MOTOR CARRIER ACT CERTAIN MOTOR VEHICLE PICKUP AND DELIVERY SERVICE
WITHIN TERMINAL AREAS.  THIS EXCLUSION AUTOMATICALLY PUT CERTAIN
EMPLOYEES, WHO WERE ENGAGED IN THAT SERVICE, BEYOND THE POWER OF THE
INTERSTATE COMMERCE COMMISSION TO ESTABLISH THEIR QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE UNDER SEC. 204 OF THE MOTOR CARRIER ACT.  THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT
OF LABOR, THEREUPON REGARDED SOME OF THEM AS ENTITLED TO THE BENEFITS
OF SEC. 7 OF THE FAIR LABOR STANDARDS ACT AS TO COMPULSORY OVERTIME
PAY.  HOWEVER, WHEN THIS NEW SEC. 202(C) WAS AMENDED BY THE ACT OF MAY
16, 1942, 56 STAT. 300, 49 U.S.C. SUPP. V, SEC. 302(C), TO INCLUDE
FREIGHT FORWARDERS, CONGRESS ALSO ADDED TO IT A GENERAL CLAUSE TO THE
EFFECT THAT "THE PROVISIONS OF SECTION 204 RELATIVE TO QUALIFICATIONS
AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND SAFETY OF OPERATION AND
EQUIPMENT" SHOULD APPLY TO THE EXEMPTED OPERATIONS.  THIS AMENDMENT WAS
AN EXPRESS RECOGNITION BY CONGRESS OF THE NEED FOR CONTROL BY THE
COMMISSION OVER THE QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF
THESE EMPLOYEES IN THE INTERESTS OF PUBLIC SAFETY, ALTHOUGH ITS
PROVISION FOR THAT CONTROL AUTOMATICALLY DEPRIVED THOSE EMPLOYEES OF
THEIR RECENTLY ACQUIRED PRIVATE RIGHTS TO HIGHER OVERTIME PAY UNDER
SEC. 7 OF THE FAIR LABOR STANDARDS ACT. 

FN11  IN OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, AN EMPLOYEE WHO
SERVED AN INTERSTATE MOTOR CARRIER AS A RATE CLERK AND PERFORMED OTHER
INCIDENTAL DUTIES, NONE OF WHICH WERE CONNECTED WITH SAFETY OF
OPERATION, WAS GIVEN JUDGMENT FOR THE OVERTIME COMPENSATION PRESCRIBED
BY SEC. 7 OF THE FAIR LABOR STANDARDS ACT. 

FN12  SEE NOTE 27, INFRA. 

FN13  SHORTLY AFTER THE ACT BECAME EFFECTIVE, THE COMMISSION, ON ITS
OWN MOTION, INSTITUTED THE EX PARTE PROCEEDINGS LISTED BELOW.  THESE
RESULTED IN MANY HEARINGS, EXAMINERS' REPORTS AND DIVISIONAL AND
COMMISSION REPORTS THOROUGHLY AND COMPREHENSIVELY COVERING THE SUBJECTS
INVESTIGATED.  FURTHER COMPARABLE INVESTIGATIONS DIRECTED BY THE
COMMERCE COMMISSION ARE PENDING.  ONE OF THESE IS TO DETERMINE WHAT, IF
ANY, QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE SHOULD BE ESTABLISHED
BY THE COMMISSION FOR MECHANICS, LOADERS AND HELPERS. 

EX PARTE NO. MC-2, ORDER OF JULY 30, 1936.  THIS RELATED TO MAXIMUM
HOURS OF SERVICE OF EMPLOYEES ENGAGED IN MOTOR CARRIER TRANSPORTATION
AND TO REGULATIONS AS TO SUCH HOURS OF SERVICE PURSUANT TO SEC.
204(A)(1), (2) AND (3).  SEE 3 M.C.C. 665, 666.  IT DEALT WITH DRIVERS
FOR COMMON AND CONTRACT CARRIERS.  IT LED TO THE HOLDING THAT
MECHANICS, LOADERS AND HELPERS ARE WITHIN THE JURISDICTION OF THE
COMMISSION BECAUSE OF THEIR ACTIVITIES AFFECTING THE SAFETY OF MOTOR
CARRIER TRANSPORTATION.  28 M.C.C. 125. 

EX PARTE NO. MC-3, ORDERS OF JULY 30, 1936, DECEMBER 23, 1936, AND
JULY 12, 1938.  THIS RELATED TO QUALIFICATIONS, MAXIMUM HOURS OF
SERVICE OF EMPLOYEES, SAFETY OF OPERATION AND EQUIPMENT OF PRIVATE
CARRIERS OF PROPERTY BY MOTOR VEHICLE.  23 M.C.C. 1, AND SEE 1 M.C.C.
1, 16. 

EX PARTE NO. MC-4, ORDER OF AUGUST 21, 1936.  THIS RELATED TO
QUALIFICATIONS OF EMPLOYEES, SAFETY OF OPERATION AND EQUIPMENT OF
COMMON AND CONTRACT MOTOR CARRIERS.  IT DEALT ESPECIALLY WITH DRIVERS. 
1 M.C.C. 1. 

EX PARTE NO. MC-28, ORDER OF NOVEMBER 2, 1938.  THIS RELATED TO THE
JURISDICTION OF THE COMMISSION OVER THE ESTABLISHMENT OF QUALIFICATIONS
AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES OF COMMON, CONTRACT AND
PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE UNDER SEC. 204(A).  THE
DECISION LIMITED SUCH JURISDICTION TO EMPLOYEES AFFECTING SAFETY OF
OPERATION BY MOTOR VEHICLES.  13 M.C.C. 481. 

THE RESULTS OF THESE PROCEEDINGS ARE SUMMARIZED IN THE TEXT OF THIS
OPINION IN THE ORDER IN WHICH SUCH RESULTS HAVE BEEN ANNOUNCED. 

FN14  SEE NOTE 9, SUPRA. 

FN15  SEE INTERPRETATIVE BULLETIN NO. 9, WAGE AND HOUR DIVISION,
OFFICE OF THE ADMINISTRATOR, PAR. 4(B), NOVEMBER, 1943, 1944-1945 WH
MAN.  520, 523, DISCUSSED AT NOTE 24, INFRA. 

FN16  SEE NOTE 2, SUPRA, FOR THE COMMISSION'S DEFINITION OF THE WORK
OF LOADERS. 

FN17  IBID. 

FN18  SEE RICHARDSON V. JAMES GIBBONS CO., 132 F.2D 627, ARGUED AND
AFFIRMED WITH SOUTHLAND CO. V. BAYLEY, 319 U.S. 44.  IN THAT CASE THE
COMMISSION'S POWER, UNDER SEC. 204(A)(3), WAS UPHELD AS TO AN EMPLOYEE
WHO TESTIFIED THAT HE WAS EMPLOYED "TWENTY-FIVE PER CENT OF THE TIME AS
A TRUCK DRIVER AND SEVENTY-FIVE PER CENT OF THE TIME AS A DISTRIBUTOR
OPERATOR" OF LIQUID ASPHALT, AND WHOSE EMPLOYER TESTIFIED THAT THE SAME
EMPLOYEE "WAS EMPLOYED APPROXIMATELY THIRTY PER CENT OF THE TIME IN
DISTRIBUTING THE ASPHALT AND SEVENTY PER CENT IN TRANSPORTING SAME." 
ID. AT 628.  APPARENTLY HIS WORK WAS ACCEPTED AS AFFECTING SAFETY OF
OPERATION ALTHOUGH ONLY 25 TO 70% OF HIS TIME WAS SPENT AS A DRIVER AND
THE BALANCE OF HIS TIME WAS SPENT IN WORK NOT AFFECTING SAFETY OF
OPERATION. 

FN19  SECTION 13(B)(1), IN THIS PARTICULAR, IS IN SHARP CONTRAST WITH
SEC. 13(A)(1) WHICH PROVIDES AS FOLLOWS FOR THE DEFINITION AND
DELIMITATION OF THAT EXEMPTION BY THE ADMINISTRATOR:    "SEC. 13.  (A)
THE PROVISIONS OF SECTIONS 6 AND 7 SHALL NOT APPLY WITH RESPECT TO (1)
ANY EMPLOYEE EMPLOYED IN A BONA FIDE EXECUTIVE, ADMINISTRATIVE,
PROFESSIONAL, OR LOCAL RETAILING CAPACITY, OR IN THE CAPACITY OF
OUTSIDE SALESMAN (AS SUCH TERMS ARE DEFINED AND DELIMITED BY
REGULATIONS OF THE ADMINISTRATOR); ..."  52 STAT. 1067, 29 U.S.C. SEC.
213(A)(1).  SEE ALSO, SECS. 213(A)(7), 213(A)(10) AND 214. 

FN20  SAFETY REGULATIONS FOR CARRIERS BY MOTOR VEHICLE, 49 CFR, CUM.
SUPP., PART 190 - GENERAL DEFINITIONS; PART 191 - HOURS OF SERVICE;
PART 192 - QUALIFICATIONS OF DRIVERS; PART 193 - DRIVING OF MOTOR
VEHICLES; PART 194 - NECESSARY MPARTS AND ACCESSORIES; PART 195 -
ACCIDENT REPORTS; PART 196 - INSPECTION AND MAINTENANCE. 

FN21  SEE 49 CFR, CUM. SUPP., PARTS 191 AND 192. 

FN22  DISCUSSED AT PAGES 667-668, SUPRA.  EX PARTE NO. MC-3, 23
M.C.C. 1, 31, 44.  "...  NO DRIVER SALESMAN EMPLOYED BY A PRIVATE
CARRIER OF PROPERTY WHO DEVOTES MORE THAN 50 PERCENT OF HIS TIME TO
SELLING AND LESS THAN 50 PERCENT TO SUCH WORK AS DRIVING, LOADING,
UNLOADING, AND THE LIKE, SHALL BE PERMITTED OR REQUIRED TO DRIVE OR
OPERATE A MOTOR VEHICLE FOR MORE THAN AN AGGREGATE OF 50 HOURS IN ANY
WEEK AS DEFINED IN SAID SEC. 191.1(E)."  (SUCH A "WEEK" IS DEFINED AS
"ANY PERIOD OF 168 CONSECUTIVE HOURS BEGINNING AT THE TIME THE DRIVER
REPORTS FOR DUTY,  ...") 49 CFR, CUM. SUPP., SEC. 191.3(B). 

FN23  29 CFR, CUM. SUPP., SECS. 541.1(F), 541.3(A)(4), 541.4(B), AND
541.5(B).  SEE ALSO, RALPH KNIGHT, INC. V. MANTEL, 135 F.2D 514. 

FN24  INTERPRETATIVE BULLETIN NO. 9, WAGE AND HOUR DIVISION, OFFICE
OF THE ADMINISTRATOR, MARCH, 1942, PAR. 5(B), 1943 WH MAN.  186, 189. 

FN25  "2.  THE SCOPE OF THE EXEMPTION PROVIDED IN SECTION 13(B)(1)
INVOLVES THE INTERPRETATION NOT ONLY OF THE FAIR LABOR STANDARDS ACT
BUT ALSO OF SECTION 204 OF THE MOTOR CARRIER ACT, 1935.  THE ACT
CONFERS NO AUTHORITY UPON THE ADMINISTRATOR TO EXTEND OR RESTRICT THE
SCOPE OF THE EXEMPTION PROVIDED IN SECTION 13(B)(1) OR EVEN TO IMPOSE
LEGALLY BINDING INTERPRETATIONS AS TO ITS MEANING.  THIS BULLETIN IS
MERELY INTENDED TO INDICATE THE COURSE WHICH THE ADMINISTRATOR WILL
FOLLOW IN THE PERFORMANCE OF HIS ADMINISTRATIVE DUTIES UNTIL OTHERWISE
REQUIRED BY THE AUTHORITATIVE RULINGS OF THE COURTS.  IT IS
NEVERTHELESS TO BE NOTED THAT THE SUPREME COURT HAS HELD THAT THE
INTERPRETATIONS EXPRESSED IN BULLETINS OF THIS DIVISION ARE ENTITLED TO
GREAT WEIGHT." 

FN26  SEE NOTE 22, SUPRA. 

FN27  IN 1945, UPON THE RECOMMENDATION OF THE ADMINISTRATOR OF THE
WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, S. 1349 WAS
INTRODUCED PROPOSING MANY AMENDMENTS TO THE FAIR LABOR STANDARDS ACT. 
THAT BILL, AS INTRODUCED AND AS RECOMMENDED FOR PASSAGE BY THE SENATE
COMMITTEE ON EDUCATION AND LABOR, PROPOSED EXPRESSLY TO EXPAND SOMEWHAT
THE SCOPE OF THE FAIR LABOR STANDARDS ACT WITHOUT REDUCING THE
JURISDICTION OF THE COMMISSION UNDER THE MOTOR CARRIER ACT, BY AMENDING
SEC. 13(B)(1) TO READ: 

"SEC. 13.... 

"(B)  THE PROVISIONS OF SECTION 7 SHALL NOT APPLY WITH RESPECT TO (1)
ANY EMPLOYEE WHO DURING THE GREATER PART OF ANY WORKWEEK IS ENGAGED IN
WORK WITH RESPECT TO WHICH THE INTERSTATE COMMERCE COMMISSION HAS
ESTABLISHED QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT TO THE
PROVISIONS OF SECTION 204 OF THE MOTOR CARRIER ACT, 1935; ..." 

HEARINGS ON S. 1349 BEFORE THE SUBCOMMITTEE OF THE SENATE ON
EDUCATION AND LABOR.  SEPTEMBER 25, 1945, PP. 4, 249, ET SEQ.; SEN.
REP. NO. 1012, 79TH CONG., 2D SESS., PP. 3, 11, 17; PART 2, PP. 5,
135. 

THIS AMENDMENT, HOWEVER, WAS ELIMINATED ON THE FLOOR OF THE SENATE,
92 CONG. REC. 2656, 2657, 3094, 3095, 3096, 3185, BEFORE PASSAGE OF THE
BILL, APRIL 5, 1946.  FURTHERMORE, IT WAS NOT INCLUDED IN THE COMPANION
BILL, H.R. NO. 4130, AS REPORTED TO THE HOUSE OF REPRESENTATIVES BY THE
COMMITTEE ON LABOR JUNE 19, 1946, H.R. REP. NO. 2300, 79TH CONG., 2D
SESS., ALTHOUGH IT WAS RECOMMENDED IN THE MINORITY REPORT OF THAT
COMMITTEE.  ID. AT 7, 15, 19.  SEE ALSO, HEARINGS BEFORE THE COMMITTEE
ON LABOR OF THE HOUSE OF REPRESENTATIVES, 79TH CONG., 1ST SESS., PP.
864, 905.  CONGRESS ADJOURNED WITHOUT TAKING FINAL ACTION ON EITHER
BILL, BUT, WHEN CONGRESS ADJOURNED, NEITHER PENDING MEASURE CONTAINED
THE PROPOSAL. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

AS THE COURT'S OPINION SAYS, THERE IS NO NECESSARY INCONSISTENCY
BETWEEN ENFORCING INTERSTATE COMMERCE COMMISSION REGULATIONS CONCERNING
"QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES" AFFECTING
SAFETY, 49 STAT. 543, 546, AND AT THE SAME TIME, WITHIN THOSE
LIMITATIONS, REQUIRING COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT'S
PROVISIONS FOR OVERTIME PAY.  INDEED THE LATTER WOULD REINFORCE THE
FORMER.  ORDINARILY, WHEN STATUTES ARE NOT INHERENTLY CONFLICTING, THE
RULE APPLIED IN CONSTRUING THEM IS TO GIVE EACH AS MUCH ROOM FOR
OPERATION AS IS CONSISTENT WITH ITS TERMS AND PURPOSES, RATHER THAN TO
CREATE CONFLICT UNNECESSARILY BETWEEN THEM. 

NOTHING IN THE MOTOR CARRIER ACT FORBIDS OR INHIBITS THE OPERATION OF
SEC. 7 OF THE FAIR LABOR STANDARDS ACT.  THE LATTER STATUTE, IT HAS
BEEN HELD REPEATEDLY, IS TO BE BROADLY AND LIBERALLY APPLIED, IN ORDER
TO ACHIEVE ITS PRIME OBJECTS OF DISTRIBUTING AND RAISING STANDARDS OF
EMPLOYMENT AND LIVING.  FN1  THE ACT HOWEVER CONTAINS CERTAIN EXEMPTING
PROVISIONS, WHICH ARE TO BE NARROWLY CONSTRUED IN THE LIGHT OF AND IN
ORDER TO ACCOMPLISH THE SAME STATUTORY PURPOSES.  FN2 

AMONG THESE IS SEC. 13(B)(1).  IT READS:  "THE PROVISIONS OF SECTION
7 SHALL NOT APPLY WITH RESPECT TO (1) ANY EMPLOYEE WITH RESPECT TO WHOM
THE INTERSTATE COMMERCE COMMISSION HAS POWER TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT TO THE PROVISIONS
OF SECTION 204 OF THE MOTOR CARRIER ACT, 1935  ..."  52 STAT. 1060,
1068.  IT IS THE MEANING AND EFFECT OF SEC. 13(B)(1) WHICH WE HAVE NOW
TO DETERMINE IN RELATION TO EMPLOYEES WHO DO SOME WORK AFFECTING SAFETY
IN OPERATIONS AND SOME NOT AFFECTING IT.  FN3 

READ LITERALLY, IN THE LIGHT OF THE SOUTHLAND DECISION,  FN4  THE
OPERATIONS, AS THE ILLINOIS COURT OF APPEALS HELD IN THIS CASE.  FN5
FOR, FACTUALLY SPEAKING, NOT THE AMOUNT OF TIME AN EMPLOYEE SPENDS IN
WORK AFFECTING SAFETY, BUT WHAT HE MAY DO IN THE TIME THUS SPENT
WHETHER IT BE LARGE OR SMALL DETERMINES THE EFFECT ON SAFETY.  TEN
MINUTES OF DRIVING BY AN UNQUALIFIED DRIVER MAY DO MORE HARM ON THE
HIGHWAY THAN A MONTH OR A YEAR OF CONSTANT DRIVING BY A QUALIFIED ONE. 

IT WOULD SEEM ESSENTIAL THEREFORE TO EFFECTIVE SAFETY CONTROL BY THE
COMMISSION THAT IT SHOULD HAVE POWER TO DETERMINE THE QUALIFICATIONS
AND MAXIMUM HOURS OF SERVICE OF ALL EMPLOYEES WHOSE WORK SUBSTANTIALLY
AFFECTS SAFETY, WHETHER OR NOT THEY SPEND WHAT MAY BE FOUND TO BE LESS
THAN A "SUBSTANTIAL" AMOUNT OF TIME IN THAT SORT OF WORK.  ANYTHING
LESS THAN THIS WOULD OPEN THE DOOR TO THE GREATEST DANGER TO MOTOR
TRAFFIC FROM CASUAL, UNQUALIFIED DRIVERS OR OTHER EMPLOYEES WHOSE WORK
AFFECTS SAFETY. 

THERE IS OR MAY BE IN SOME CIRCUMSTANCES A RELATION BETWEEN TIME
SPENT IN SUCH WORK AND SUBSTANTIAL EFFECTS UPON SAFETY, BUT IT IS BY NO
MEANS AN EXCLUSIVE OR CONTROLLING ONE.  TIME AFFECTS THE DURATION AND
SCOPE, NOT NECESSARILY THE EXISTENCE, OF THE RISK. 

I ACCEPT THE "SAFETY FIRST" VIEW OF THE COMMISSION'S POWER.  AND THIS
REQUIRES ACCEPTANCE OF THE VIEW THAT, IN RELATION TO SOME KINDS OF
WORK, THE COMMISSION HAS POWER TO PRESCRIBE THE QUALIFICATIONS OF ALL
EMPLOYEES WHO ENGAGE IN IT TO ANY EXTENT, THOUGH THE TIME THUS SPENT IS
NOT FIVE MINUTES DAILY OR WEEKLY.  "SUBSTANTIAL EFFECT" IN THESE
INSTANCES HAS LITTLE IF ANY RELATION, NEGATIVELY SPEAKING, TO
"SUBSTANTIAL TIME."  DRIVING AND THE WORK OF MECHANICAL REPAIR OF
TRUCKS ARE OBVIOUS EXAMPLES.  LOADING MAY BE ANOTHER, LESS OBVIOUSLY AS
THE COURT SAYS, BUT DEPENDING UPON THE CIRCUMSTANCES UNDER WHICH IT IS
DONE.  FN6  SO WITH THE WORK OF HELPERS IN THESE THREE FUNCTIONS. 

NOTWITHSTANDING THE COMMISSION'S CONTRARY FINDING,  FN7  THIS MEANS
THAT ALL EMPLOYEES WHO DO ANY PART OF CERTAIN KINDS OF WORK, FOR
HOWEVER SHORT A TIME, REGULARLY OR CASUALLY, FALL WITHIN THE
COMMISSION'S POWER.  IT MEANS, FOR INSTANCE, THAT A PERSON WHO SPENDS
TEN MINUTES A DAY OR AN HOUR A WEEK IN DRIVING OR IN MECHANICALLY
REPAIRING TRUCKS, AND THE REMAINING 39 HOURS OF A 40-HOUR WEEK IN WORK
HAVING NO EFFECT UPON SAFETY FALLS WITHIN THE COMMISSION'S AUTHORITY. 
FOR, IN SUCH CIRCUMSTANCES, IT CANNOT BE HELD THAT THE COMPARATIVELY
MINUTE AMOUNT OF TIME SPENT IN WORK AFFECTING SAFETY IS TRIVIAL OR
INCONSEQUENTIAL IN ITS POSSIBLE EFFECTS UPON SAFETY.  AND IN THE
COURT'S VIEW, AS I UNDERSTAND IT, THE RESULT IS NOT ONLY THAT THE
COMMISSION HAS POWER TO PRESCRIBE THE QUALIFICATIONS OF ALL SUCH
EMPLOYEES,  FN8  BUT ALSO THAT THEY ARE THEREBY EXEMPTED FROM THE
OVERTIME PAY PROVISIONS OF THE FAIR LABOR STANDARDS ACT. 

IT IS FROM THE LATTER CONCLUSION THAT I DISSENT.  I CANNOT BELIEVE
THAT CONGRESS, WHEN IT INCORPORATED SEC. 13(B)(1) IN THE STATUTE,
INTENDED TO EXCLUDE FROM THOSE PROVISIONS EVERY EMPLOYEE WHO MIGHT
SPEND TEN MINUTES A DAY IN WORK SUBSTANTIALLY AFFECTING SAFETY AND
SEVEN HOURS AND FIFTY MINUTES IN WORK HAVING NO EFFECT WHATEVER UPON
IT.  AN EXACTLY LITERAL APPLICATION OF SEC. 13(B)(1), IT IS TRUE, WOULD
LEAD TO THIS RESULT.  BUT WE ARE FREQUENTLY TOLD THAT RIGIDLY LITERAL
APPLICATION OF A STATUTE MAY BE RUINOUS TO ACHIEVING ITS PURPOSES.  FN9
IT IS ESPECIALLY SO IN THIS INSTANCE, IN VIEW OF THE NATURE AND
PURPOSES OF THE ACT WE ARE CONSTRUING, FOR A VARIETY OF REASONS. 

THE LEGISLATIVE HISTORY SHOWS, IN MY JUDGMENT, THAT CONGRESS DID NOT
HAVE IN MIND SO EXPANSIVE AND DESTRUCTIVE AN EXEMPTION AS LITERAL
APPLICATION OF SEC. 13(B)(1) AND THE COURT'S RULING  FN10 WOULD
PRODUCE.  CONGRESS CLEARLY INTENDED TO EXEMPT SOME EMPLOYEES WHO DO NOT
DEVOTE ALL THEIR TIME TO SUCH WORK.  BUT AT THE TIME IT ACTED ITS
PRIMARY CONCERN AND THAT OF THE COMMISSION  FN11 WERE WITH FULL-TIME
EMPLOYEES, PRINCIPALLY DRIVERS, SO ENGAGED.  IN VIEW OF THAT FACT, IT
CANNOT BE TAKEN THAT CONGRESS INTENDED EVERY EMPLOYEE ASSIGNED FOR A
FEW MINUTES DAILY OR WEEKLY TO WORK SUBSTANTIALLY AFFECTING SAFETY TO
BE ELIMINATED FROM THE OVERTIME PAY PROVISIONS.  SUCH A VIEW IN
PRACTICAL EFFECT WOULD NULLIFY THE ACT'S BROAD AND INCLUSIVE PURPOSES
FOR LARGE NUMBERS OF EMPLOYEES AS TO WHOM, AT THE TIME, THE COMMISSION
HAD SHOWN NO CONCERN IN EXERCISING ITS SAFETY POWER OR IN ITS
REPRESENTATIONS TO CONGRESS, AND AS TO WHOM THEREFORE THERE WAS NO
SOUND REASON FOR OR PURPOSE OF EXEMPTION. 

MOREOVER, ACCEPTANCE OF SUCH A CONSTRUCTION WOULD SET UP AN EASY MODE
FOR EVASION OF THE FAIR LABOR STANDARDS ACT'S REQUIREMENTS.  AN
EMPLOYER SO MINDED READILY COULD ASSIGN TO NONSAFETY EMPLOYEES WHOM HE
DESIRED TO REMOVE FROM THE OVERTIME PAY REQUIREMENTS WORK AFFECTING
SAFETY FOR MINUTE PORTIONS OF THEIR TOTAL SERVICE.  COMMITTING THE
ACT'S COVERAGE IN ALL SUCH POSSIBLE SITUATIONS TO A DETERMINATION OF
THE EMPLOYER'S GOOD FAITH COULD ONLY INVITE CONTINUOUS LITIGATION UPON
HIS MOTIVE, A RESULT IN ITSELF TENDING STRONGLY TO DEFEAT THE RIGHTS
GIVEN BY THE ACT.  I DO NOT THINK CONGRESS INTENDED SUCH CONSEQUENCES
FOR THE STATUTE'S EFFECTIVE OPERATION WHEN IT INCLUDED SEC. 13(B)(1). 

THE DIFFICULTY LIES OF COURSE NOT ONLY IN THE RIGIDLY LITERAL
INTERPRETATION GIVEN TO THAT SECTION, BUT IN THE COROLLARY ASSUMPTION
OF INTENDED COMPLETE MUTUAL EXCLUSIVENESS OF THE COMMISSION'S POWER AND
THE FAIR LABOR STANDARDS ACT'S APPLICABILITY DRAWN FROM IT.  AS I DO
NOT THINK CONGRESS INTENDED THE ONE, IN RELATION TO THE PROBLEM NOW
PRESENTED, SO I DO NOT BELIEVE IT HAD THE OTHER IN MIND.  AND IF THIS
WAS TRUE, THEN THE PROBLEM FOR US BECOMES, AS IT MOST OFTEN DOES IN
SUCH SITUATIONS, ONE OF MAKING ACCOMMODATION BETWEEN THE TWO STATUTES
IN A MANNER WHICH WILL GIVE TO EACH ITS MAXIMUM EFFECT WITHOUT
NULLIFYING CONGRESS' MANIFEST INTENTION.  FN12 

IF THE SPIRIT AND PURPOSES OF THE STATUTES ARE TAKEN INTO ACCOUNT, WE
ARE NOT INESCAPABLY COMPELLED TO CHOOSE BETWEEN THE EQUALLY UNTENABLE
ALTERNATIVES OF A COMPLETELY LITERAL APPLICATION OF SEC. 13(B)(1) AND A
CONSTRUCTION WHICH WOULD NULLIFY THE COMMISSION'S POWER CONCERNING THE
GREAT BULK OF EMPLOYEES TO WHICH IT RIGHTFULLY EXTENDS.  ALTHOUGH THE
EXEMPTION OF SEC. 13(B)(1) IS NOT AMONG THOSE WHICH SPECIFICALLY
EMPOWER THE ADMINISTRATOR TO DETERMINE THEIR SCOPE BY REGULATIONS,
FN13  HE IS CHARGED WITH THE DUTY OF ADMINISTERING IT AND HIS
EXPERIENCE IS ENTITLED TO WEIGHT WHEN HE FORMULATES CONCLUSIONS FROM IT
FOR THE PURPOSE OF APPLYING THE ACT'S PROVISIONS, ALBEIT THEY ARE NOT
CONCLUSIVE.  THE PRESENT PROBLEM HAS NOT BEEN WITHOUT DIFFICULTY FOR
THE ADMINISTRATOR,  FN14  BUT HIS FINAL RULING, RESULTING FROM HIS
EXPERIENCE, PRESENTS IN MY OPINION BOTH THE MOST WORKABLE SOLUTION AND
THE ONE MOST CONSISTENT WITH CONGRESS' PURPOSE AND INTENT RELATING TO
THE OPERATION OF BOTH ACTS.  IT IS THAT THE EXEMPTION IS INAPPLICABLE
TO ANY EMPLOYEE "WHO SPENDS THE GREATER PART OF HIS TIME DURING ANY
WORKWEEK ON NON-EXEMPT ACTIVITIES (SUCH AS PRODUCING, PROCESSING, OR
MANUFACTURING GOODS, WAREHOUSE OR CLERICAL WORK, OR OTHER TYPE OF WORK
WHICH DOES NOT AFFECT SAFETY OF OPERATIONS)." 

SUCH A STANDARD IS MORE CONSISTENT WITH THE ACT'S PURPOSES THAN THE
ONE APPLIED BY THE COURT, NOT ONLY IN THE LIGHT OF THE LEGISLATIVE
HISTORY, BUT ALSO IN THAT IT IS MORE DEFINITE, MORE EASILY APPLIED, AND
NOT INVITINGLY CONDUCIVE TO LITIGATION.  FOR THESE REASONS, AND BECAUSE
I DO NOT BELIEVE A TOTALLY LITERAL APPLICATION OF SEC. 13(B)(1) WAS
COMPREHENDED FOR THE SITUATIONS NOW PRESENTED, I THINK A LINE SO DRAWN
MOST NEARLY CONSISTENT WITH WHAT CONGRESS HAD IN MIND TO ACCOMPLISH BY
THE EXEMPTION.    HOWEVER, SINCE THERE IS NO ESSENTIAL INCONSISTENCY IN
THE TWO STATUTES OR THEIR OPERATION, I DO NOT THINK IT NECESSARILY
FOLLOWS THAT PART-TIME EMPLOYEES THUS NOT EXCLUDED FROM THE FAIR LABOR
STANDARDS ACT'S COVERAGE ARE THEREBY EXCLUDED FROM THE COMMISSION'S
SAFETY POWER.  THAT POWER I WOULD LEAVE UNQUALIFIED AS TO THEM, SINCE
NOTHING IN EITHER STATUTE COMPELS QUALIFICATION, AS TO EMPLOYEES NOT
EXEMPTED, OF THE AUTHORITY GIVEN THE COMMISSION TO REGULATE
"QUALIFICATIONS AND HOURS OF SERVICE OF EMPLOYEES" WHOSE WORK AFFECTS
SAFETY.  THE TWO STATUTES CLEARLY ARE MUTUALLY EXCLUSIVE, THOUGH NOT
ESSENTIALLY INCONSISTENT, AS TO EMPLOYEES PRIMARILY ENGAGED IN
OPERATIONS AFFECTING SAFETY.  THEY ARE NOT NECESSARILY OR, I THINK, BY
VIRTUE OF CONGRESS' INTENT OR COMMAND, THUS EXCLUSIVE AS TO OTHERS. 

I THEREFORE AGREE THAT "SUBSTANTIAL EFFECT" UPON SAFETY RATHER THAN
"SUBSTANTIAL TIME" SPENT IN DOING WORK AFFECTING IT DETERMINES THE
SCOPE OF THE INTERSTATE COMMERCE COMMISSION'S SAFETY POWER.  HOWEVER,
IN ACCEPTING THIS CONCLUSION, THOUGH NOT THE FURTHER ONE THAT ALL
EMPLOYEES SO COVERED ARE WITHIN THE EXEMPTION OF SEC. 13(B)(1), I DO SO
NOT UPON THE BASIS OF THE COMMISSION'S OWN DETERMINATION, WHICH
EXPRESSLY ADOPTS THE CRITERION OF "SUBSTANTIAL TIME" AND IS THEREFORE
BOTH NARROWER THAN AND INCONSISTENT WITH THE COURT'S RULING AS TO THE
EXTENT OF ITS POWER.  FN15 THE COMMISSION'S DETERMINATION TENDS
STRONGLY TO SUPPORT THE ADMINISTRATOR'S POSITION AS TO THE SCOPE OF THE
EXEMPTION INTENDED TO BE CREATED BY SEC. 13(B)(1).  BUT ITS VOICE IS
ONLY PERSUASIVE, NOT CONCLUSIVE, UPON THE QUESTION OF THE SCOPE OF ITS
POWER.  IN ADOPTING "SUBSTANTIAL TIME" RATHER THAN "SUBSTANTIAL
EFFECT," I AGREE THAT THE COMMISSION HAS RULED TOO NARROWLY.  INDEED,
ITS BRIEF IN THIS CASE MAINTAINS AS MUCH.  FN16  ACCORDINGLY I
CONCLUDE, INDEPENDENTLY OF ITS FORMAL DETERMINATION, THAT THE FULL AND
ADEQUATE PERFORMANCE BY THE COMMISSION OF THE SAFETY FUNCTION CONFERRED
BY THE MOTOR CARRIER ACT REQUIRES THE LARGER SCOPE WHICH THE COURT'S
RULING ALLOWS FOR ITS OPERATION. 

THE VIEWS EXPRESSED IN THIS OPINION, OF COURSE, WOULD APPLY ALSO IN
PYRAMID MOTOR FREIGHT CORP. V. ISPASS, 330 U.S. 695, DECIDED THIS DAY,
BUT IN VIEW OF THE DECISION IN THIS CASE IT IS NOT NECESSARY TO FILE A
SEPARATE DISSENT IN THE COMPANION ONE. 

FN1  TENNESSEE COAL CO. V. MUSCODA LOCAL, 321 U.S. 590, 597; PHILLIPS
CO. V. WALLING, 324 U.S. 490, 493; CALAF V. GONZALEZ, 127 F.2D 934,
937. 

FN2  PHILLIPS CO. V. WALLING, SUPRA; CALAF V. GONZALEZ, SUPRA. 

FN3  AS TO EMPLOYEES ENGAGED FULL TIME IN SUCH WORK, SOUTHLAND CO. V.
BAYLEY, 319 U.S. 44, HELD THAT THE EXISTENCE OF POWER IN THE
COMMISSION, WHETHER OR NOT EXERCISED, TO PRESCRIBE QUALIFICATIONS AND
HOURS OF SERVICE, EXCLUDES THEM UNDER SEC. 13(B)(1) FROM COVERAGE UNDER
THE FAIR LABOR STANDARDS ACT'S TERMS.  CF. NOTE 11. 

FN4  IBID. 

FN5  THE COURT SAID:  "...  WE BELIEVE THAT THE TRUE DETERMINANT IS
WHETHER AN EMPLOYEE PERFORMS ANY DUTIES WHICH SUBSTANTIALLY AFFECT THE
SAFETY OF OPERATION, RATHER THAN WHETHER THE DUTIES AFFECTING SAFETY
ARE SUBSTANTIAL."  323 ILL. APP. 505, 509.  THIS IS ALSO THE
COMMISSION'S POSITION TAKEN IN THE BRIEF AND AT THE ARGUMENT IN THIS
CAUSE.  SEE NOTE 16.  THE ILLINOIS SUPREME COURT FOUND THE TEST IN "A
SUBSTANTIAL PART OF PLAINTIFF'S WORK."  389 ILL. 466, 473. 

FN6  THUS, ONE WHO HAS THE SOLE RESPONSIBILITY OF LOADING OR OF
DIRECTING LOADING, WHERE WEIGHT OF THE ARTICLES CARRIED IS UNEQUAL AND
ITS DISTRIBUTION MAY AFFECT SAFETY, WOULD SEEM CLEARLY TO BE WITHIN THE
CLASSIFICATION WHETHER THE TIME SPENT IS LARGE OR SMALL.  ON THE OTHER
HAND, IF THE WORKER IS MERELY A HELPER, LOADING UNDER DIRECT AND ACTIVE
SUPERVISION OF ANOTHER, WITH NO RESPONSIBILITY OTHER THAN TO OBEY HIS
SUPERIOR'S ORDERS AS TO PLACEMENT, IT WOULD SEEM CLEAR THAT HIS WORK
DOES NOT AFFECT SAFETY. 

FN7  SEE TEXT INFRA AT NOTE 15; AND NOTE 16. 

FN8  THE OPINION PUTS THE MATTER IN VARIOUS WAYS.  E.G., "THE
FUNDAMENTAL TEST IS SIMPLY THAT THE EMPLOYEE'S ACTIVITIES AFFECT SAFETY
OF OPERATION."  "THE TERM 'PARTIAL-DUTY LOADER' IS USED ...  SO AS TO
AVOID THE IMPLICATION THAT TIME SPENT IN CERTAIN ACTIVITIES, RATHER
THAN THE CHARACTER OF THOSE ACTIVITIES, IS TO BE THE CONCLUSIVE FACTOR
..."  NOTE 3.  "IT IS ESSENTIAL TO THE COMMISSION'S SAFETY PROGRAM
WHENEVER AND WHEREVER HAZARDOUS ACTIVITIES ARE ENGAGED IN THAT AFFECT
SAFETY  ...  THAT THOSE WHO ENGAGE IN THEM SHALL BE QUALIFIED  ..." 
"WE RECOGNIZE THAT THE COMMISSION HAS SUCH POWER OVER ALL EMPLOYEES
...  WHOSE ACTIVITIES AFFECT SAFETY  ..."  "IT IS THE CHARACTER OF THE
ACTIVITIES RATHER THAN THE PROPORTION OF EITHER THE EMPLOYEE'S TIME OR
OF HIS ACTIVITIES THAT DETERMINES THE ACTUAL NEED FOR THE COMMISSION'S
POWER  ..."  "THE LOADING OF ANY TRUCK LOAD OF MIXED FREIGHT REQUIRES
THAT THE GENERAL QUALIFICATIONS OF THE LOADER BE ADEQUATE, REGARDLESS
OF THE PROPORTION OF HIS WORKING TIME THAT MAY HAVE BEEN DEVOTED TO
THIS ACTIVITY  ..."  "THE PETITIONER'S ACTIVITIES THUS AFFECTED SAFETY
OF OPERATION, ALTHOUGH IT DOES NOT APPEAR WHAT FRACTION OF HIS TIME WAS
SPENT IN ACTIVITIES AFFECTING SAFETY OF OPERATION." 

FN9  CF. NOTE 12.  "ALL CONSTRUCTION IS THE ASCERTAINMENT OF
MEANING.  AND LITERALNESS MAY STRANGLE MEANING."  UTAH JUNK CO. V.
PORTER, 328 U.S. 39, 44; MARKHAM V. CABELL, 326 U.S. 404, 409; CHURCH
OF THE HOLY TRINITY V. UNITED STATES, 143 U.S. 457. 

FN10  SEE NOTE 8 AND TEXT INFRA AT NOTE 15. 

FN11  THE EXEMPTION MADE BY SEC. 13(B)(1) WAS SUGGESTED TO CONGRESS
ORIGINALLY BY THE INTERSTATE COMMERCE COMMISSION.  UNITED STATES V.
AMERICAN TRUCKING ASSNS., 310 U.S. 534, 549.  THE LEGISLATIVE HISTORY
SHOWS THAT THE SECTION "WAS ADOPTED TO FREE OPERATORS OF MOTOR VEHICLES
FROM THE REGULATION BY TWO AGENCIES OF THE HOURS OF DRIVERS," SOUTHLAND
GASOLINE CO. V. BAYLEY, 319 U.S. 44, 48-49, UPON THE UNDERSTANDING THAT
THE INTERSTATE COMMERCE COMMISSION "HAD ALREADY ACTED UPON MAXIMUM
HOURS FOR DRIVERS  ...."  ID., AT 49, N. 5.  SEE ALSO NOTE 16. 

FN12  "THE PROBLEM OF STATUTORY CONSTRUCTION  ...  SHOULD NOT BE
SOLVED SIMPLY BY A LITERAL READING OF THE EXEMPTION SECTION OF THE FAIR
LABOR STANDARDS ACT AND THE DELEGATION OF POWER SECTION OF THE MOTOR
CARRIER ACT.  BOTH SECTIONS ARE PARTS OF IMPORTANT GENERAL STATUTES AND
THEIR PARTICULAR LANGUAGE SHOULD BE CONSTRUED IN THE LIGHT OF THE
PURPOSES WHICH LED TO THE ENACTMENT OF THE ENTIRE LEGISLATION." 
SOUTHLAND GASOLINE CO. V. BAYLEY, 319 U.S. 44, 47. 

FN13  SEE SECS. 13(A)(1), 13(A)(7), 13(A)(10), 14. 

FN14  THE ADMINISTRATOR ORIGINALLY INTERPRETED THE EXEMPTION TO BE
INAPPLICABLE TO ANY EMPLOYEE WHO SPENT A SUBSTANTIAL AMOUNT OF HIS TIME
IN NONEXEMPT WORK.  SUBSEQUENTLY "SUBSTANTIAL" WAS EXPLAINED TO MEAN
MORE THAN TWENTY PER CENT OF THE EMPLOYEE'S TIME.  INTERPRETATIVE
BULLETIN, NO. 9, MARCH, 1942, WAGE & HOUR MANUAL (1943 ED.)  186, 189. 
LATER THE RULING WAS CHANGED SO THAT THE EXEMPTION WAS GIVEN ITS
PRESENT FORM AS STATED IN THE TEXT, INFRA.  INTERPRETATIVE BULLETIN NO.
9, NOVEMBER, 1943, WAGE & HOUR MANUAL (1944-1945 ED.)  520, 523. 

FN15  THE COURT PURPORTS TO ADOPT THE COMMISSION'S BASIS FOR
DETERMINING WHAT EMPLOYEES ARE WITHIN THE SAFETY POWER, ESPECIALLY AS
MADE IN EX PARTE NOS. MC-2 AND MC-3, 28 M.C.C. 125.  BUT SINCE THE TEST
THE COURT NOW PRESCRIBES IS APPARENTLY ONE OF "SUBSTANTIAL EFFECT"
RATHER THAN "SUBSTANTIAL TIME," SEE NOTE 8, IT DIFFERS FROM THE BASIS
OF THE COMMISSION'S RULING.  THE COMMISSION'S FINDINGS OF FACT AND
CONCLUSIONS OF LAW ARE SET FORTH IN THE TEXT OF THE MAJORITY OPINION. 
THE QUOTED FINDING IS THAT LOADERS "DEVOTE A LARGE PART OF THEIR TIME
TO ACTIVITIES WHICH DIRECTLY AFFECT THE SAFETY OF OPERATION."  28
M.C.C. AT 139.  AND THE CONCLUSION OF LAW IS STATED IN TERMS OF TIME,
NAMELY, "THAT OUR JURISDICTION  ... IS LIMITED TO THOSE EMPLOYEES WHO
DEVOTE A SUBSTANTIAL PART OF THEIR TIME TO ACTIVITIES WHICH DIRECTLY
AFFECT THE SAFETY OF OPERATION," AND "THAT WE HAVE POWER  ...  TO
ESTABLISH QUALIFICATIONS  ...  FOR THE CLASSES OF EMPLOYEES" COVERED BY
THE FINDINGS OF FACT, AND "THAT WE HAVE NO SUCH POWER OVER ANY OTHER
CLASSES OF EMPLOYEES, EXCEPT DRIVERS."  IBID.  THIS NECESSARILY
EXCLUDED EMPLOYEES OF THE CLASSES COVERED NOT DEVOTING A SUBSTANTIAL
PART OF THEIR TIME TO WORK AFFECTING SAFETY, IN VIEW OF THE FINDINGS. 

FN16  THE DIFFERENCE IN THE COMMISSION'S FINDINGS AND CONCLUSIONS, AS
MADE IN EX PARTE NOS. MC-2 AND MC-3, SEE NOTE 15, AND THE POSITION
TAKEN HERE BY COUNSEL IN ITS BEHALF WAS THE OCCASION FOR SOME
DIFFICULTY, IF NOT EMBARRASSMENT, AT THE ARGUMENT.  THE BRIEF AND
ARGUMENT, BY CONTRAST WITH THE FINDINGS AND CONCLUSIONS, MAINTAINED:
"...  IT SEEMS CLEAR THAT, REGARDLESS OF THE AMOUNT OF TIME DEVOTED TO
THE WORK BY AN INDIVIDUAL LOADER (OR LOADER FOREMAN), HE IS EXPECTED TO
BE FITTED, AND IN FIT CONDITION, TO PERFORM IT WHEN THE OCCASION ARISES
AND THEREFORE INTENDED TO BE SUBJECT TO THE COMMISSION'S AUTHORITY OVER
QUALIFICATIONS AND HOURS OF SERVICE."  RELIANCE WAS PLACED SQUARELY
UPON THE POSITION TAKEN IN THIS CASE BY THE ILLINOIS COURT OF APPEALS. 
SEE NOTE 5. 

ABLE COUNSEL FOR THE COMMISSION SOUGHT TO AVOID THE EFFECT OF THE
FINDINGS AND CONCLUSIONS BY RESTRICTING IT TO CLASSES OF EMPLOYEES
WITHOUT REFERENCE TO INDIVIDUAL EMPLOYEES.  IT WAS NOT SATISFACTORILY
EXPLAINED, HOWEVER, HOW AN INDIVIDUAL EMPLOYEE COULD BE BROUGHT WITHIN
THE CLASS WITHOUT BEING BROUGHT WITHIN THE OUTER BOUNDARY PRESCRIBED BY
THE COMMISSION FOR DEFINING THE CLASS. 

MR. JUSTICE BLACK AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :
























PYRAMID MOTOR CORP. V. ISPASS, 330 U.S. 695 


NO. 41.  ARGUED OCTOBER 22, 1946.  - DECIDED MARCH 31, 1947.  - 152 F.2D
619, JUDGMENT VACATED IN PART AND CAUSE REMANDED. 


1.  WHERE A NOTICE OF APPEAL HAS BEEN DULY FILED IN A DISTRICT COURT
BUT THE APPEAL HAS NOT BEEN DOCKETED AND THE TRANSCRIPT OF RECORD HAS
NOT BEEN FILED IN THE CIRCUIT COURT OF APPEALS WITHIN THE TIME
SPECIFIED IN RULE 73(G) OF THE FEDERAL RULES OF CIVIL PROCEDURE, IT IS
NOT AN ABUSE OF DISCRETION FOR A CIRCUIT COURT OF APPEALS TO TAKE INTO
CONSIDERATION THE SUBSTANTIALITY OF THE QUESTION TO BE AT ISSUE ON THE
MERITS OF THE APPEAL, IN CONNECTION WITH ALL THE OTHER CIRCUMSTANCES
BEFORE IT, WHEN REFUSING, UNDER AUTHORITY OF RULE 73(A), TO DISMISS THE
APPEAL.  PP. 702-705. 

2.  AFTER THE INTERSTATE COMMERCE COMMISSION HAD DEFINED SPECIFICALLY
THE CLASSES OF EMPLOYEES OF INTERSTATE MOTOR CARRIERS, INCLUDING
"LOADERS," AS TO WHOM IT "HAS POWER" UNDER SEC. 204(A) OF THE MOTOR
CARRIER ACT TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE,
CERTAIN EMPLOYEES OF AN INTERSTATE MOTOR CARRIER SUED UNDER SEC. 16(B)
OF THE FAIR LABOR STANDARDS ACT FOR OVERTIME COMPENSATION UNDER SEC.
7.  THE EMPLOYER DEFENDED ON THE GROUND THAT THEIR LABOR "CONSISTED
PRIMARILY OF THAT OF DRIVER'S HELPER AND OF LOADER," AND THAT THEY WERE
EXCLUDED BY SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT FROM THE
BENEFITS OF SEC. 7.  HELD:  THE QUESTION WHETHER OR NOT AN INDIVIDUAL
EMPLOYEE IS WITHIN ANY CLASS OF EMPLOYEES AS TO WHICH THE COMMISSION
HAS POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE IS
TO BE DETERMINED BY THE JUDICIAL PROCESS, AND THERE IS NO OCCASION TO
SUSPEND FINAL JUDGMENT PENDING FURTHER FINDINGS BY THE COMMISSION.  PP.
705-707. 

3.  THIS CASE IS REMANDED TO THE DISTRICT COURT FOR DETERMINATION OF
THE STATUS OF THE PLAINTIFFS IN ACCORDANCE WITH THE PRINCIPLES STATED
IN LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 649, AND THE FOLLOWING
PRINCIPLES: 

(A)  IN APPLYING SEC. 204 OF THE MOTOR CARRIER ACT TO PLAINTIFFS, THE
DISTRICT COURT WILL DETERMINE WHETHER OR NOT THE ACTIVITIES OF EACH
PLAINTIFF, EITHER AS A WHOLE OR IN SUBSTANTIAL PART, COME WITHIN THE
COMMISSION'S DEFINITION OF THE WORK OF A "LOADER."  P. 707. 

(B)  IN MAKING THIS DETERMINATION, THE DISTRICT COURT SHALL NOT BE
CONCLUDED BY THE NAME WHICH MAY HAVE BEEN GIVEN TO HIS POSITION OR TO
THE WORK THAT HE DOES NOR BE REQUIRED TO FIND THAT ANY SPECIFIC PART OF
HIS TIME IN ANY GIVEN WEEK MUST HAVE BEEN SPENT IN THOSE ACTIVITIES. 
P. 707. 

(C)  THE DISTRICT COURT SHALL GIVE PARTICULAR ATTENTION TO WHETHER OR
NOT THE ACTIVITIES OF THE RESPECTIVE PLAINTIFFS INCLUDED THAT KIND OF
"LOADING" WHICH IS HELD BY THE COMMISSION TO AFFECT SAFETY OF
OPERATION.  PP. 707-708. 

(D)  THE MERE HANDLING OF FREIGHT AT A TERMINAL, BEFORE OR AFTER
LOADING, OR EVEN THE PLACING OF CERTAIN ARTICLES OF FREIGHT ON A MOTOR
CARRIER TRUCK MAY FORM SO TRIVIAL, CASUAL OR OCCASIONAL PART OF AN
EMPLOYEE'S ACTIVITIES, OR HIS ACTIVITIES MAY RELATE ONLY TO SUCH
ARTICLES OR TO SUCH LIMITED HANDLING OF THEM, THAT HIS ACTIVITIES WILL
NOT COME WITHIN THE KIND OF "LOADING" WHICH IS DESCRIBED BY THE
COMMISSION AND WHICH IS FOUND BY IT TO AFFECT SAFETY OF OPERATION.  P.
708. 

(E)  IF NONE OF THE ALLEGED "LOADING" ACTIVITIES OF THE RESPECTIVE
PLAINTIFFS, DURING THE PERIODS AT ISSUE, COME WITHIN THE KIND OF
ACTIVITIES WHICH, ACCORDING TO THE COMMISSION, AFFECT THE SAFETY OF
OPERATION, THEN SUCH PLAINTIFFS ARE ENTITLED TO THE BENEFITS OF SEC. 7
OF THE FAIR LABOR STANDARDS ACT.  P. 708. 

(F)  IF THE WHOLE OR A SUBSTANTIAL PART OF SUCH ALLEGED "LOADING"
ACTIVITIES OF THE RESPECTIVE PLAINTIFFS, DURING THE PERIODS AT ISSUE,
DOES COME WITHIN THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE
COMMISSION, AFFECT SAFETY OF OPERATION, SUCH PLAINTIFFS ARE EXCLUDED
FROM THE BENEFITS OF SEC. 7 OF THE FAIR LABOR STANDARDS ACT.  P. 708. 

(G)  IF SOME, BUT LESS THAN A SUBSTANTIAL PART, OF SUCH ACTIVITIES OF
THE RESPECTIVE PLAINTIFFS, DURING SOME OR ALL OF THE PERIODS AT ISSUE,
COME WITHIN THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE COMMISSION,
AFFECT SUCH SAFETY OF OPERATION, THEN THE QUESTION AS TO THE RIGHT OF
SUCH PLAINTIFFS TO THE BENEFITS OF SEC. 7 OF THE FAIR LABOR STANDARDS
ACT IS RESERVED, SINCE IT DOES NOT COME WITHIN THE PRECISE ISSUE
DETERMINED IN LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 649.  PP. 708
709. 

PYRAMID MOTOR FREIGHT CORP. V. ISPASS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

IN A SUIT BROUGHT BY CERTAIN EMPLOYEES OF AN INTERSTATE MOTOR CARRIER
UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT FOR OVERTIME
COMPENSATION UNDER SEC. 7, A DISTRICT COURT DECLINED TO DETERMINE
PLAINTIFFS' STATUS UNDER SEC. 13(B)(1) AND THE MOTOR CARRIER ACT, BUT
HELD THE CASE "OPEN FOR FURTHER ACTION," IN ORDER TO GIVE THEM AN
OPPORTUNITY TO PRESENT THAT QUESTION TO THE INTERSTATE COMMERCE
COMMISSION.  54 F.SUPP.  565.  UPON PLAINTIFFS' REFUSAL TO DO SO AND
THEIR MOTION REQUESTING A FINAL DISPOSITION OF THE CASE, THE DISTRICT
COURT DISMISSED THE COMPLAINT "WITHOUT PREJUDICE."  59 F.SUPP.  341. 
THE CIRCUIT COURT OF APPEALS AFFIRMED THE DISMISSAL AS TO ONE PLAINTIFF
AND REMANDED THE CASE TO THE DISTRICT COURT FOR ENTRY OF JUDGMENT IN
FAVOR OF THE OTHER PLAINTIFFS.  152 F.2D 619.  THIS COURT GRANTED
CERTIORARI.  327 U.S. 774.  EXCEPT AS TO ONE PLAINTIFF, AS TO WHOM THE
JUDGMENT OF DISMISSAL WAS NOT QUESTIONED HERE, THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS IS VACATED IN PART AND THE CAUSE IS REMANDED
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.  P. 709. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS TWO ISSUES: 

I. WAS IT REVERSIBLE ERROR FOR THE CIRCUIT COURT OF APPEALS TO DENY
PETITIONER'S MOTION TO DISMISS THE APPEAL, MADE ON THE GROUND THAT THE
APPEAL HAD NOT BEEN DOCKETED AND THE TRANSCRIPT OF RECORD HAD NOT BEEN
FILED WITHIN THE TIME SPECIFIED IN RULE 73(G) OF THE FEDERAL RULES OF
CIVIL PROCEDURE?  WE HOLD THAT IT WAS NOT. 

II.  UNDER THE PRINCIPLES WE HAVE STATED IN THE COMPANION CASE OF
LEVINSON V. SPECTOR MOTOR SERVICE, 330 U.S. 649, WAS THE CIRCUIT COURT
OF APPEALS JUSTIFIED IN REMANDING THE PRESENT CASE TO THE DISTRICT
COURT FOR ENTRY OF A JUDGMENT UNDER THE FAIR LABOR STANDARDS ACT, IN
FAVOR OF ALL OF THE RESPONDENTS EXCEPT SHAPIRO?  WE HOLD THAT THE CASE
SHOULD BE REMANDED, BUT WITH DIRECTIONS TO PROCEED IN ACCORDANCE WITH
THE OPINION OF THIS COURT IN THIS CASE AND THE LEVINSON CASE.  THIS
WILL INCLUDE A DIRECTION TO THE DISTRICT COURT TO DETERMINE WHETHER OR
NOT THE ACTIVITIES OF EACH RESPONDENT CONSISTED, WHOLLY OR IN
SUBSTANTIAL PART, OF THE CLASS OF WORK WHICH IS DEFINED BY THE
INTERSTATE COMMERCE COMMISSION IN EX PARTE NO. MC-2, 28 M.C.C. 125, 133
134, AS THAT OF A "LOADER" OF FREIGHT FOR AN INTERSTATE COMMON CARRIER
BY MOTOR VEHICLE, AND AS AFFECTING THE SAFETY OF OPERATION OF MOTOR
VEHICLES IN INTERSTATE OR FOREIGN COMMERCE.  FN1 

THIS ACTION WAS BEGUN IN 1942 IN THE CITY COURT OF THE CITY OF NEW
YORK, PURSUANT TO SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT.  FN2  IT
SOUGHT TO RECOVER UNPAID OVERTIME COMPENSATION FOR SERVICES RENDERED TO
THE PETITIONER BY EACH OF SIX OF THE EIGHT RESPONDENTS AS "A DELIVERY
CLERK AND 'PUSH-BOY'," DURING VARIOUS PERIODS BETWEEN OCTOBER 24, 1938,
AND SEPTEMBER 20, 1941, COMPUTED IN ACCORDANCE WITH SEC. 7 OF THE FAIR
LABOR STANDARDS ACT,  FN3  TOGETHER WITH INTEREST, LIQUIDATED DAMAGES
AND AN ATTORNEY'S FEE.  THE CASE WAS REMOVED BY THE PETITIONER TO THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. 
THE OTHER TWO RESPONDENTS THERE JOINED IN THE COMPLAINT ON LIKE
GROUNDS.  THE PETITIONER ANSWERED THAT IT WAS AN INTERSTATE COMMON
CARRIER OF FREIGHT BY MOTOR VEHICLE; THAT THE LABOR PERFORMED BY EACH
OF THE RESPONDENTS "CONSISTED PRIMARILY OF THAT OF (A) DRIVER'S HELPER
AND OF (A) LOADER;" THAT, WITH RESPECT TO THEM, THE INTERSTATE COMMERCE
COMMISSION HAD POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE PURSUANT TO SEC. 204 OF THE MOTOR CARRIER ACT, 1935, AND THAT,
BY VIRTUE OF SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT,  FN4  SEC.
7 OF THAT ACT DID NOT APPLY TO THE SERVICES OF THE RESPONDENTS.  THE
CASE WAS SUBMITTED TO THE COURT UPON AN AGREED STATEMENT OF FACTS. 
FN5 

ON NOVEMBER 29, 1943, THE DISTRICT COURT RENDERED AN OPINION IN WHICH
IT DECLINED TO DETERMINE THE STATUS OF THE RESPONDENTS BUT HELD THE
CASE "OPEN FOR FURTHER ACTION" IN ORDER TO GIVE THE RESPONDENTS AN
OPPORTUNITY TO PRESENT THAT QUESTION TO THE INTERSTATE COMMERCE
COMMISSION.  54 F.SUPP.  565, 569.  PURSUANT TO RESPONDENTS' STATEMENT
THAT THEY WOULD NOT SO APPLY TO THE COMMISSION AND PURSUANT TO THEIR
MOTION REQUESTING A FINAL DISPOSITION OF THE CASE, THE COURT, ON
FEBRUARY 14, 1945, DISMISSED THE COMPLAINT "WITHOUT PREJUDICE."  FN6
59 F.SUPP.  341.  AFTER CONSIDERABLE DELAY IN THE FILING OF THE RECORD
ON APPEAL, THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED
THE JUDGMENT OF DISMISSAL AS TO THE RESPONDENT SHAPIRO ON THE GROUND
THAT "HE IS A 'HELPER' WITHIN THE COMMISSION'S RULING IN 28 M.C.C. AT
PAGES 135, 136."  152 F.2D 619, 622.  AS TO THE OTHER RESPONDENTS, IT
REVERSED THE JUDGMENT WITH COSTS AND REMANDED THE CAUSE "FOR ENTRY OF
JUDGMENT IN THEIR FAVOR AND FOR ALLOWANCE OF AN ATTORNEY'S FEE."  ID.
AT 622.  THE JUDGMENT AS TO SHAPIRO HAS NOT BEEN QUESTIONED AND IS NOT
BEFORE US. 

BECAUSE OF ITS IMPORTANCE IN THE INTERPRETATION OF THE MOTOR CARRIER
ACT AND THE FAIR LABOR STANDARDS ACT, WE GRANTED CERTIORARI, 327 U.S.
774, AND THE CASE WAS ARGUED IMMEDIATELY FOLLOWING THE LEVINSON CASE. 
A BRIEF ON BEHALF OF THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION,
UNITED STATES DEPARTMENT OF LABOR, AS AMICUS CURIAE, WAS FILED JOINTLY
IN THIS CASE AND IN THE LEVINSON CASE, SUPPORTING THE POSITION OF THE
RESPONDENTS.  FN7

                I. 

NOTICE OF APPEAL, DATED MARCH 29, 1945, WAS FILED BY THE RESPONDENTS
IN THE DISTRICT COURT APRIL 2, 1945.  IN SPITE OF THE APPLICABLE
PROVISIONS OF RULE 73(G) OF THE FEDERAL RULES OF CIVIL PROCEDURE,  FN8
RESPONDENTS SOUGHT FROM THE DISTRICT COURT NO EXTENSION OF TIME WITHIN
WHICH TO DOCKET THEIR APPEAL OR FILE A TRANSCRIPT OF THE RECORD.  ON
JULY 20, 1945, MORE THAN 90 DAYS FROM THE DATE OF THE FIRST NOTICE OF
APPEAL, RESPONDENTS, PURSUANT TO MOTION SUPPORTED BY AFFIDAVIT, SECURED
FROM CIRCUIT JUDGE AUGUSTUS N. HAND AN ORDER EXTENDING TO SEPTEMBER 1,
1945, THE TIME WITHIN WHICH TO SERVE AND FILE THEIR RECORD ON APPEAL. 
ON THAT DATE, THE TRANSCRIPT OF RECORD WAS FILED.  THE PETITIONER
PROMPTLY MOVED TO DISMISS THE APPEAL UNDER RULE 73(A) OF THE FEDERAL
RULES OF CIVIL PROCEDURE N9, QUESTIONING ESPECIALLY THE RIGHT OF A
SINGLE MEMBER OF THAT COURT TO MAKE THE ORDER OF JULY 20.  THIS MOTION
WAS DENIED OCTOBER 10, 1945, CIRCUIT JUDGES LEARNED HAND, SWAN AND
CLARK SPEAKING FOR THE COURT.  THE MOTION WAS RENEWED AT THE HEARING ON
THE MERITS OF THE APPEAL AND, ON DECEMBER 28, 1945, WAS DENIED AGAIN,
CIRCUIT JUDGES LEARNED HAND, SWAN AND FRANK SPEAKING FOR THE COURT. 
152 F.2D 619.  THE ISSUE WAS RAISED PROPERLY AND FULLY PRESENTED HERE. 

THE AUTHORITY OF A JUDGE OF THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT TO EXTEND THE TIME FOR FILING THE RECORD ON APPEAL
APPEARS TO BE SUPPORTED BY RULE 15 OF THAT COURT.  FN10  THAT RULE,
HOWEVER, WAS NOT DISCUSSED BY COUNSEL AND WE SUSTAIN THE ACTION TAKEN
BY THE CIRCUIT COURT OF APPEALS UNDER AUTHORITY OF RULE 73(A), EVEN
WITHOUT REFERENCE TO ITS OWN RULE 15. 

THE PRINCIPAL ARGUMENT AGAINST THE FINAL ACTION OF THE CIRCUIT COURT
OF APPEALS ON THIS MOTION IS BASED UPON THE FOLLOWING STATEMENT IN THAT
COURT'S OPINION:  "IN THE CASE AT BAR THERE WAS NO ABUSE OF DISCRETION
IN EXTENDING THE TIME, DESPITE THE SOMEWHAT FEEBLE EXCUSES FOR DELAY,
SINCE THE APPEAL PRESENTS A SUBSTANTIAL QUESTION AS TO THE CORRECTNESS
OF THE JUDGMENT."  152 F.2D 2D 619, 621.  IT IS URGED THAT THIS SHOWS
THAT THE COURT BASED ITS REFUSAL TO DISMISS THE APPEAL ON THE
SUBSTANTIALITY OF THE QUESTION TO BE PRESENTED ON THE MERITS OF THE
APPEAL, RATHER THAN ON THE SUBSTANTIALITY OF THE EXCUSES FOR THE DELAY
IN FILING THE RECORD. 

WE INTERPRET THE STATEMENT AS NO MORE THAN A RECOGNITION BY THE COURT
THAT THE SUBSTANTIALITY OF THE QUESTION TO BE AT ISSUE ON THE MERITS OF
THE APPEAL WAS A MATTER APPROPRIATE FOR ITS CONSIDERATION UNDER RULE
73(A), IN CONNECTION WITH ALL THE OTHER CIRCUMSTANCES BEFORE IT.  RULE
73(A) IS INTENDED TO PLACE RELIANCE UPON THE SOUND DISCRETION OF THE
CIRCUIT COURT OF APPEALS.  WE SEE NO REASON TO QUESTION THE DISCRETION
EXERCISED IN THIS CASE AS EVIDENCED BY THE AGREEMENT OF ALL OF THE FIVE
CIRCUIT JUDGES TO WHOM THE ISSUE WAS PRESENTED.  AINSWORTH V. GILL
GLASS & FIXTURE CO., 104 F.2D 83; MUTUAL BENEFIT HEALTH & ACCIDENT
ASSN. V. SNYDER, 109 F.2D 469; BURKE V. CANFIELD, 72 APP. D.C. 127, 111
F.2D 526; UNITED STATES V. GALLAGHER, 151 F.2D 556. 

ACCORDINGLY, WE SUSTAIN THE DENIAL OF THE MOTION TO DISMISS THE
APPEAL UNDER RULE 73(A). 

                                 II. 

ON THE MERITS, THE QUESTION IS WHETHER OR NOT THE CIRCUIT COURT OF
APPEALS WAS JUSTIFIED IN REMANDING THIS CASE WITH INSTRUCTIONS TO ENTER
A JUDGMENT UNDER THE FAIR LABOR STANDARDS ACT IN FAVOR OF ALL OF THE
RESPONDENTS EXCEPT SHAPIRO.  WE HOLD THAT THE CAUSE SHOULD BE REMANDED
BUT THAT THE ORDER OF REMAND SHOULD BE MODIFIED.  THIS CASE WAS TRIED,
WITHOUT A JURY, ENTIRELY UPON AN AGREED STATEMENT OF FACTS AND A PRE
TRIAL AGREEMENT BETWEEN THE PARTIES, APPROVED BY THE DISTRICT COURT,
SETTLING THE ISSUES TO BE DETERMINED.  FOR THE SAKE OF CLARITY, WE HAVE
PROCEEDED ON THE SAME BASIS AND HAVE TREATED THE CASE AS THOUGH, UPON
REMAND OF IT TO THE DISTRICT COURT, THAT COURT WILL PROCEED UPON THE
SAME RECORD.  THIS, HOWEVER, SHOULD NOT BE INTERPRETED AS NECESSARILY
RESTRICTING THAT COURT TO THAT RECORD IF, FOR GOOD CAUSE, THAT COURT
SHOULD FIND IT ADVISABLE TO RETRY THE CASE DE NOVO.  FN11 

UNDER THE AGREED STATEMENT THERE WAS NO QUESTION BUT THAT THE FAIR
LABOR STANDARDS ACT APPLIED TO EACH RESPONDENT PROVIDED ONLY THAT HE
WAS NOT FOUND TO HAVE BEEN EXCLUDED FROM THE OVERTIME PAY REQUIREMENTS
OF THAT ACT BY SEC. 13(B)(1) BECAUSE OF BEING AN "EMPLOYEE WITH RESPECT
TO WHOM THE INTERSTATE COMMERCE COMMISSION HAS POWER TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT TO THE PROVISIONS
OF SECTION 204 OF THE MOTOR CARRIER ACT, 1935; ..."  52 STAT. 1068, 29
U.S.C. SEC. 213(B)(1).  THERE THUS WILL REMAIN TO BE DETERMINED BY THE
DISTRICT COURT THE QUESTION WHETHER THE ACTIVITIES OF THE RESPECTIVE
RESPONDENTS CONSISTED, EITHER WHOLLY OR IN SUBSTANTIAL PART, OF THE
CLASS OF WORK WHICH IS DEFINED BY THE INTERSTATE COMMERCE COMMISSION IN
EX PARTE NO. MC-2, 28 M.C.C. 125, 133-134, AS THAT OF A "LOADER," AND
AS AFFECTING THE SAFETY OF OPERATION OF MOTOR VEHICLES IN INTERSTATE OR
FOREIGN COMMERCE.  FN12 

IT WILL REMAIN FOR THE DISTRICT COURT TO APPLY THE FACTS FOUND BY IT
AS TO THE ACTIVITIES OF THE RESPECTIVE RESPONDENTS TO THE
CLASSIFICATIONS OF WORK THAT HAVE BEEN MADE BY THE INTERSTATE COMMERCE
COMMISSION, DEFINING WHAT COMES WITHIN THE JURISDICTION OF THE
COMMISSION UNDER SEC. 204 OF THE MOTOR CARRIER ACT.  THE COMMISSION HAS
DEFINED ITS JURISDICTION, BOTH AFFIRMATIVELY AND NEGATIVELY, AS
FOLLOWS: 

"...  WE HAVE POWER, UNDER SECTION 204(A) OF SAID PART II, TO
ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR THE CLASSES
OF EMPLOYEES COVERED BY FINDINGS OF FACT NUMBERED 1, 2, AND 3 ABOVE
(MECHANICS, LOADERS AND HELPERS), AND  ...  WE HAVE NO SUCH POWER OVER
ANY OTHER CLASSES OF EMPLOYEES, EXCEPT DRIVERS."  EX PARTE NO. MC-2, 28
M.C.C. 125, 139.  FN13 

UNDER THESE CIRCUMSTANCES, THERE IS NO OCCASION FOR US TO REFER TO
THE COMMISSION ANY QUESTION PRESENTED IN THIS CASE NOR TO SUSPEND THE
LONG-DELAYED FINAL JUDGMENT PENDING FURTHER FINDINGS BY THE
COMMISSION.  THE COMMISSION HAS DONE ITS WORK.  THE DISTRICT COURT MUST
DETERMINE SIMPLY WHETHER OR NOT THE RESPECTIVE EMPLOYEES WHO SEEK TO
RECOVER OVERTIME COMPENSATION UNDER SEC. 7 ARE EXCLUDED FROM THE
BENEFITS OF THAT SECTION BECAUSE THEY ARE WITHIN THE ABOVE
CLASSIFICATION.  THE SPECIAL KNOWLEDGE AND EXPERIENCE REQUIRED TO
DETERMINE WHAT CLASSIFICATIONS OF WORK AFFECT SAFETY OF OPERATION OF
INTERSTATE MOTOR CARRIERS HAVE BEEN APPLIED BY THE COMMISSION.  WHETHER
OR NOT AN INDIVIDUAL EMPLOYEE IS WITHIN ANY SUCH CLASSIFICATION IS TO
BE DETERMINED BY JUDICIAL PROCESS. 

THE DISTRICT COURT, IN APPLYING SEC. 204 OF THE MOTOR CARRIER ACT TO
RESPONDENTS, WILL DETERMINE WHETHER OR NOT THE ACTIVITIES OF EACH
RESPONDENT, EITHER AS A WHOLE OR IN SUBSTANTIAL PART, COME WITHIN THE
COMMISSION'S DEFINITION OF THE WORK OF A "LOADER."  IN DETERMINING
WHETHER THE ACTIVITIES, OR ANY SUBSTANTIAL PART OF THE ACTIVITIES, OF
AN INDIVIDUAL COME WITHIN THOSE OF SUCH A "LOADER," THE DISTRICT COURT
SHALL NOT BE CONCLUDED BY THE NAME WHICH MAY HAVE BEEN GIVEN TO HIS
POSITION OR TO THE WORK THAT HE DOES, NOR SHALL THE DISTRICT COURT BE
REQUIRED TO FIND THAT ANY SPECIFIC PART OF HIS TIME IN ANY GIVEN WEEK
MUST HAVE BEEN SPENT IN THOSE ACTIVITIES.  THE DISTRICT COURT SHALL
GIVE PARTICULAR ATTENTION TO WHETHER OR NOT THE ACTIVITIES OF THE
RESPECTIVE RESPONDENTS INCLUDED THAT KIND OF "LOADING" WHICH IS HELD BY
THE COMMISSION TO AFFECT SAFETY OF OPERATION.  IN CONTRAST TO THE
LOADING ACTIVITIES IN THE LEVINSON CASE, THE MERE HANDLING OF FREIGHT
AT A TERMINAL, BEFORE OR AFTER LOADING, OR EVEN THE PLACING OF CERTAIN
ARTICLES OF FREIGHT ON A MOTOR CARRIER TRUCK MAY FORM SO TRIVIAL,
CASUAL OR OCCASIONAL A PART OF AN EMPLOYEE'S ACTIVITIES, OR HIS
ACTIVITIES MAY RELATE ONLY TO SUCH ARTICLES OR TO SUCH LIMITED HANDLING
OF THEM, THAT HIS ACTIVITIES WILL NOT COME WITHIN THE KIND OF "LOADING"
WHICH IS DESCRIBED BY THE COMMISSION AND WHICH, IN ITS OPINION, AFFECTS
SAFETY OF OPERATION.  SEE ALSO, MCKEOWN V. SOUTHERN CALIFORNIA FREIGHT
FORWARDERS, 49 F.SUPP.  543.  EXCEPT INSOFAR AS THE COMMISSION HAS
FOUND THAT THE ACTIVITIES OF DRIVERS, MECHANICS, LOADERS AND HELPERS,
AS DEFINED BY IT, AFFECT SAFETY OF OPERATION, IT HAS DISCLAIMED ITS
POWER TO ESTABLISH QUALIFICATIONS OR MAXIMUM HOURS OF SERVICE UNDER
SEC. 204 OF THE MOTOR CARRIER ACT.    IF NONE OF THE ALLEGED "LOADING"
ACTIVITIES OF THE RESPECTIVE RESPONDENTS, DURING THE PERIODS AT ISSUE,
COME WITHIN THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE COMMISSION,
AFFECT THE SAFETY OF OPERATION OF MOTOR VEHICLES IN INTERSTATE OR
FOREIGN COMMERCE WITHIN THE MEANING OF THE MOTOR CARRIER ACT, THEN
THOSE RESPONDENTS OF WHICH THAT IS TRUE ARE ENTITLED TO THE BENEFITS OF
SEC. 7 OF THE FAIR LABOR STANDARDS ACT.  ON THE OTHER HAND, IF THE
WHOLE OR A SUBSTANTIAL PART OF SUCH ALLEGED "LOADING" ACTIVITIES OF THE
RESPECTIVE RESPONDENTS, DURING THE PERIODS AT ISSUE, DOES COME WITHIN
THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE COMMISSION, AFFECT SUCH
SAFETY OF OPERATION, THEN THOSE RESPONDENTS WHO WERE ENGAGED IN SUCH
ACTIVITIES ARE EXCLUDED FROM THE BENEFITS OF SUCH SEC. 7.  IF SOME, BUT
LESS THAN A SUBSTANTIAL PART, OF SUCH ACTIVITIES OF THE RESPECTIVE
RESPONDENTS, DURING SOME OR ALL OF THE PERIODS AT ISSUE, COME WITHIN
THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE COMMISSION, AFFECT SUCH
SAFETY OF OPERATION, THEN THE RIGHT OF THOSE RESPONDENTS WHO WERE
ENGAGED IN SUCH ACTIVITIES TO RECEIVE THE BENEFITS OF SEC. 7 OF THE
FAIR LABOR STANDARDS ACT DOES NOT COME WITHIN THE PRECISE ISSUE
DETERMINED IN THE LEVINSON CASE AND THIS COURT RESERVES ITS DECISION AS
TO THE POWER OF THE COMMISSION TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE WITH RESPECT TO THEM AND, CONSEQUENTLY, RESERVES ITS
DECISION AS TO THEIR RIGHT TO RECEIVE THE BENEFITS OF SEC. 7 OF THE
FAIR LABOR STANDARDS ACT. 

FOR THESE REASONS, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS
VACATED INSOFAR AS IT RELATES TO THE RESPONDENTS OTHER THAN SHAPIRO,
AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 652, NOTE 2. 

FN2  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 653, NOTE 6. 

FN3  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 653, NOTE 5. 

FN4  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 653, NOTE 4. 

FN5  THIS INCLUDED THE FOLLOWING DESCRIPTION OF THE WORK OF THE
RESPONDENTS AS EMPLOYEES OF THE PETITIONER: 

"ITEM 3.  AS TO NORTHBOUND FREIGHT THE LOADED VEHICLES WOULD COME
INTO NEW YORK IN THE VERY EARLY MORNING HOURS TO THE WEST 11TH STREET
TERMINAL WHERE NEW DRIVERS TOOK CHARGE OF THE VEHICLES, AND WHAT WERE
CALLED DOWNTOWN HELPERS RODE ON THE VEHICLES WITH THE DRIVERS TO THE
38TH STREET TERMINAL.  AT SUCH TERMINAL THE DOORS OF THE TRUCKS WERE
OPENED IN THE MORNINGS, BOTH THE DRIVER AND DOWNTOWN HELPER REMAINING
ON THE VEHICLES.  AS THE DOWNTOWN HELPER PUSHED THE FREIGHT PACKAGES
OVER THE TAILBOARDS THEY WERE RECEIVED BY THE PLAINTIFFS (RESPONDENTS),
WHO THEN PLACED THE FREIGHT PACKAGES IN THE SUB-TERMINAL BUILDING. 
STILL LATER IN THE MORNINGS THE PLAINTIFFS (RESPONDENTS) THEN DELIVERED
THE PACKAGES TO VARIOUS CONSIGNEES IN THE GARMENT CENTER, GENERALLY
USING FOR THAT PURPOSE WHAT ARE CALLED HAND-TRUCKS OR FLAT TRUCKS,
USING THEIR OWN MANPOWER FOR PROPULSION. 

"DURING THOSE SAME DAYS OTHER NORTHBOUND TRUCKS AFTER FIRST STOPPING
AT THE WEST 11TH STREET MAIN TERMINAL TO CHANGE A DRIVER AND RECEIVE A
DOWNTOWN HELPER, BY-PASSED THE WEST 38TH STREET SUBTERMINAL AND PARKED
FIRST AT ONE PLACE AND THEN ANOTHER ALONGSIDE THE CURBS IN THE GARMENT
CENTER.  AT THOSE PLACES THE UNLOADING OPERATION WAS PERFORMED IN THE
SAME WAY AS AT THE SUB-TERMINAL HEREINABOVE DESCRIBED, AND THE
PLAINTIFFS (RESPONDENTS) THEN MADE THE DELIVERIES BY HAND OR BY HAND
TRUCKS INTO THE INSIDES OF THE GARMENT CENTER BUILDINGS. 

"ITEM 4.  IN THE LATE AFTERNOONS AND EARLY EVENINGS FREIGHT
ORIGINATING WITH VARIOUS CONSIGNORS AT VARIOUS LOCATIONS IN THE GARMENT
CENTER WAS 'PICKED UP' FOR INTENDED DELIVERY THE NEXT MORNING IN
PHILADELPHIA OR ELSEWHERE SOUTH OF NEW YORK.  AS TO THESE SOUTHBOUND
OPERATIONS THE FACTS WERE THESE:  SOME OF THE FREIGHT PACKAGES WOULD BE
PICKED UP BY THE PLAINTIFFS (RESPONDENTS) AT THE CONSIGNOR'S PLACES OF
BUSINESS IN THE GARMENT CENTER AND HAND-TRUCKED BY THEM TO THE WEST
38TH STREET SUB-TERMINAL.  AT THAT PLACE THE PLAINTIFFS (RESPONDENTS)
THEMSELVES DID, IN DUE COURSE, PHYSICALLY LOAD THE FREIGHT PACKAGES
INTO A WAITING TRUCK WHICH, WHEN LOADED, TOOK UP THIS JOURNEY FIRST TO
THE WEST 11TH STREET MAIN TERMINAL, AND THEN WITH A NEW DRIVER WENT ON
TO THE DESTINATIONS SOUTH OF NEW YORK.  A DOWNTOWN EMPLOYEE OTHER THAN
THE PLAINTIFFS (RESPONDENTS) WOULD ALSO AT THE SAME TIME SO LOAD THE
VEHICLES. 

"OTHER TRUCKS FOR SOUTHBOUND LOADINGS TOOK THEIR STATIONS ON THE
PUBLIC STREETS IN THE GARMENT CENTER WHERE THE PLAINTIFFS (RESPONDENTS)
BROUGHT THE PACKAGES BY HAND OR BY HAND TRUCK.  THE PART WHICH THE
PLAINTIFFS (RESPONDENTS) TOOK IN SUCH LOADING CONSISTED OF THE LIFTING
OF THE PACKAGES ON TO THE TAILBOARDS OF THE TRUCKS, AND VERY OFTEN WHEN
THE WEIGHTS OR SIZE OF THE PACKAGES SO REQUIRED THEY WOULD STAND INSIDE
THE TRUCK BODIES AND, TOGETHER WITH THE DOWNTOWN EMPLOYEE, STACK AND
PILE THE FREIGHT IN THE VEHICLE. 

"ITEM 5.  AS TO ALL THE PLAINTIFFS (RESPONDENTS) OTHER THAN SHAPIRO
THEY GENERALLY WALKED BETWEEN STOPPING POINTS BUT OCCASIONALLY RODE
UPON THE TRUCKS WHEN THE TRUCKS MOVED FROM ONE PLACE TO ANOTHER IN THE
GARMENT CENTER, THEREBY AVOIDING LOSS OF TIME BY WALKING.  AS TO THE
PLAINTIFF SHAPIRO, HE REGULARLY AND AS A MATTER OF FIXED DUTY, BETWEEN
AUGUST 1939 AND SEPTEMBER 1, 1941, RODE ON THE TRUCK BETWEEN FOUR AND
FIVE HOURS DAILY.  ON THE TRUCK AT THE SAME TIME WAS THE DRIVER AND A
HELPER FROM THE DOWNTOWN TERMINAL.  IN ADDITION THERETO THE PLAINTIFF
SHAPIRO DEVOTED THREE AND A HALF HOURS EACH DAY TO INSIDE OFFICE WORK
AT THE 38TH STREET SUB-TERMINAL." 

FN6  THE ORDER OF DISMISSAL APPEARING IN THE RECORD WAS AS FOLLOWS: 

"ORDERED THAT THE COMPLAINT BE AND THE SAME HEREBY IS DISMISSED AND
THAT JUDGMENT BE ENTERED ABATING AND DISMISSING SAID ACTION, WITHOUT
PREJUDICE TO THE RIGHTS OF PLAINTIFFS (RESPONDENTS), OR ANY ONE OF
THEM, TO BRING OTHER ACTIONS OR PROCEEDINGS FOR THE ESTABLISHMENT OF
THEIR RESPECTIVE CLAIMS, EITHER ADMINISTRATIVELY OR AT AN APPROPRIATE
TIME, BY ACTION IN THIS COURT OR OTHER PROPER TRIBUNAL." 

FN7  SEE ALSO, WALLING V. COMET CARRIERS, 57 F.SUPP.  1018, 151 F.2D
107, 109; CERT. GRANTED, 326 U.S. 716; WRIT OF CERTIORARI DISMISSED ON
MOTION OF COUNSEL FOR PETITIONER COMET CARRIERS, 328 U.S. 819.  THAT
CASE, ALSO IN THE SECOND CIRCUIT, RELATED TO "FOUR MOTOR TRUCK DRIVERS,
FOUR DRIVERS' HELPERS AND TWO HAND TRUCKERS OR PUSHERS" EMPLOYED BY
COMET CARRIERS IN THE TRANSPORTATION OF GOODS BETWEEN MANUFACTURERS AND
CONTRACTORS MOSTLY ON INTRASTATE TRIPS WITHIN OR NEAR THE NEW YORK CITY
GARMENT CENTER.  AS TO THE HAND TRUCKERS OR PUSHERS, THE DISTRICT COURT
SAID:  "THEY ARE NOT EMPLOYED ON MOTOR VEHICLES NOR DO THEIR FUNCTIONS
AS EMPLOYEES AFFECT OR RELATE TO THE SAFETY OF OPERATION OF THE MOTOR
VEHICLES IN INTERSTATE COMMERCE."  57 F.SUPP.  1018, 1023.  THE CIRCUIT
COURT OF APPEALS DISCUSSED ONLY THE DRIVERS AND DRIVERS' HELPERS.  AS
TO THEM IT SAID: 

"PROOF THAT TWO EMPLOYEES WORKED ONLY THREE HOURS A WEEK IN
INTERSTATE TRANSPORTATION AND THAT TWO EMPLOYEES MADE 'SOME' AND
'OCCASIONAL' DELIVERIES TO THE WAREHOUSES OF CHAIN STORES AND WORKED
THE REMAINING TIME IN THE PRODUCTION OF GOODS FOR COMMERCE DOES NOT
SATISFY THE REQUIREMENT THAT THE AMOUNT OF TIME DURING WHICH THEY ARE
ENGAGED IN INTERSTATE COMMERCE BE SUBSTANTIAL."  151 F.2D 107, 111. 

FN8  "RULE 73.  APPEAL TO A CIRCUIT COURT OF APPEALS. 

     . .         .         .         . 

"(G)  DOCKETING AND RECORD ON APPEAL.  THE RECORD ON APPEAL AS
PROVIDED FOR IN RULES 75 AND 76 SHALL BE FILED WITH THE APPELLATE COURT
AND THE ACTION THERE DOCKETED WITHIN 40 DAYS FROM THE DATE OF THE
NOTICE OF APPEAL; EXCEPT THAT, WHEN MORE THAN ONE APPEAL IS TAKEN FROM
THE SAME JUDGMENT TO THE SAME APPELLATE COURT, THE DISTRICT COURT MAY
PRESCRIBE THE TIME FOR FILING AND DOCKETING, WHICH IN NO EVENT SHALL BE
LESS THAN 40 DAYS FROM THE DATE OF THE FIRST NOTICE OF APPEAL.  IN ALL
CASES THE DISTRICT COURT IN ITS DISCRETION AND WITH OR WITHOUT MOTION
OR NOTICE MAY EXTEND THE TIME FOR FILING THE RECORD ON APPEAL AND
DOCKETING THE ACTION, IF ITS ORDER FOR EXTENSION IS MADE BEFORE THE
EXPIRATION OF THE PERIOD FOR FILING AND DOCKETING AS ORIGINALLY
PRESCRIBED OR AS EXTENDED BY A PREVIOUS ORDER; BUT THE DISTRICT COURT
SHALL NOT EXTEND THE TIME TO A DAY MORE THAN 90 DAYS FROM THE DATE OF
THE FIRST NOTICE OF APPEAL."  308 U.S. 752, 28 U.S.C. FOLLOWING SEC.
723(C). 

FN9  "RULE 73.  APPEAL TO A CIRCUIT COURT OF APPEALS. 

"(A)  HOW TAKEN.  WHEN AN APPEAL IS PERMITTED BY LAW FROM A DISTRICT
COURT TO A CIRCUIT COURT OF APPEALS AND WITHIN THE TIME PRESCRIBED, A
PARTY MAY APPEAL FROM A JUDGMENT BY FILING WITH THE DISTRICT COURT A
NOTICE OF APPEAL.  FAILURE OF THE APPELLANT TO TAKE ANY OF THE FURTHER
STEPS TO SECURE THE REVIEW OF THE JUDGMENT APPEALED FROM DOES NOT
AFFECT THE VALIDITY OF THE APPEAL, BUT IS GROUND ONLY FOR SUCH REMEDIES
AS ARE SPECIFIED IN THIS RULE OR, WHEN NO REMEDY IS SPECIFIED, FOR SUCH
ACTION AS THE APPELLATE COURT DEEMS APPROPRIATE, WHICH MAY INCLUDE
DISMISSAL OF THE APPEAL."  308 U.S. 749, 28 U.S.C. FOLLOWING SEC.
723(C). 

FN10  RULE 15, U.S.C.C.A., SECOND CIRCUIT. 

          "DOCKETING CASES. 

"1.  IN AN APPEAL IN A CIVIL ACTION THE APPELLANT SHALL DOCKET THE
ACTION AND FILE THE RECORD IN THIS COURT WITHIN FORTY DAYS AFTER FILING
THE NOTICE OF APPEAL WITH THE DISTRICT COURT, OR WITHIN ANY ADDED TIME
GRANTED BY THE DISTRICT JUDGE WITHIN FORTY DAYS AFTER THE FILING OF THE
NOTICE OF APPEAL, BUT IN NO CASE LATER THAN NINETY DAYS AFTER SUCH
FILING (RULE 73(G))....  IF THE RECORD IS NOT PRESENTED TO THE CLERK
FOR FILING WITHIN THE PERIODS ABOVE PROVIDED, HE SHALL REFUSE TO ACCEPT
IT UNLESS THIS COURT SO ORDERS, OR A JUDGE THEREOF IF THE COURT IS NOT
SITTING. 

"2.  THIS COURT WILL NOT HEAR AND GRANT MOTIONS FOR FILING AND
DOCKETING APPEALS, OTHERWISE PROPERLY TAKEN, AT TIMES OTHER THAN AS
STATED IN SUBDIVISION 1 HEREOF, EXCEPT UPON A SHOWING BY AFFIDAVITS, OR
OTHERWISE AS THE COURT MAY ORDER, (A) THAT THE DELAY HAS BEEN DUE TO
CAUSE BEYOND THE CONTROL OF THE MOVING PARTY OR (B) THAT THE DELAY HAS
BEEN DUE TO CIRCUMSTANCES WHICH SHALL BE DEEMED TO BE MERELY EXCUSABLE
NEGLECT ON THE PART OF THE MOVING PARTY AND THERE IS A SUBSTANTIAL
QUESTION TO BE PRESENTED ON APPEAL AND (C) IN ALL CASES WHERE THE
DISTRICT COURT HAS POWER TO ACT, THAT AN EXTENSION OF TIME HAS BEEN
DENIED BY THAT COURT, TOGETHER WITH THE GROUNDS FOR SUCH DENIAL, IF ANY
ARE STATED. 

"3.  IF THE APPELLANT SHALL HAVE FAILED TO COMPLY WITH THIS RULE, ANY
APPELLEE MAY EITHER DOCKET THE ACTION AND FILE THE RECORD IN THIS
COURT, IN WHICH EVENT IT SHALL STAND FOR ARGUMENT, OR MAY HAVE THE
ACTION DOCKETED AND DISMISSED BY THE CLERK OF THIS COURT UPON PRODUCING
A CERTIFICATE FROM THE CLERK OF THE COURT WHEREIN THE JUDGMENT OR
DECREE WAS RENDERED, CERTIFYING THAT SUCH APPEAL HAS BEEN DULY TAKEN OR
ALLOWED, AND PROOF THAT FOUR DAYS' NOTICE IN WRITING HAS BEEN SERVED ON
THE APPELLANT OR HIS ATTORNEY THAT APPLICATION WILL BE MADE TO THE
CLERK OF THIS COURT FOR SUCH DISMISSAL.  NO ACTION DISMISSED UNDER THIS
RULE SHALL BE REINSTATED EXCEPT IN THE DISCRETION OF THE COURT AND UPON
A SHOWING SIMILAR TO THAT REQUIRED UNDER SUBDIVISION 2 HEREOF."  11
U.S. SUP. CT. REP. DIGEST, L. ED., SUPP. NO. 4, P. 55. 

FN11  THE DISTRICT COURT, IN ITS ORDER OF FEBRUARY 14, 1945,
DESCRIBED THE BASIS ON WHICH THE CASE HAD BEEN TRIED AS FOLLOWS: 

"...  ON THE 3RD DAY OF MAY, 1943, AND THE PARTIES HERETO HAVING DULY
APPEARED BY THEIR RESPECTIVE ATTORNEYS, AND SUBMITTED TO THE COURT, IN
LIEU OF THE OFFERING OF PROOF, AN AGREED STATEMENT OF FACTS SETTING
FORTH THE ISSUES FRAMED BY THE COMPLAINT, AND THE COURT, UPON THE
CONSENT OF THE ATTORNEYS FOR THE RESPECTIVE PARTIES, HAVING THEREUPON
MADE AND ENTERED AN ORDER HEREIN ON THE SAID 3RD DAY OF MAY, 1943,
WHEREIN AND WHEREBY THE SAID AGREED STATEMENT OF FACTS WHICH WERE
SUBMITTED BY THE ATTORNEYS FOR THE RESPECTIVE PARTIES, AS AFORESAID,
WAS SET FORTH AS THE ISSUES FRAMED BY THE COMPLAINT AND ANSWER, AND THE
SAID ACTION HAVING BEEN SUBMITTED TO THE COURT FOR ITS DETERMINATION
UPON THE SAID AGREED STATEMENT OF FACTS AND ORDER HEREINBEFORE
MENTIONED AND REFERRED TO,  ..." 

FN12  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 652, NOTE 2. 

FN13  THE FINDINGS OF FACT REFERRED TO BY THE COMMISSION, INSOFAR AS
THEY RELATE TO LOADERS, ARE THOSE QUOTED IN THE TEXT OF LEVINSON V.
SPECTOR MOTOR SERVICE, ANTE, P. 669, AT NOTE 17. 
..END :























UNITED STATES V. REMUND, 330 U.S. 539 


NO. 417.  ARGUED FEBRUARY 5, 1947.  - DECIDED MARCH 17, 1947.  - 70 S.D.
- , 23 N.W.2D 281, REVERSED. 


1.  UNDER R.S. SEC. 3466, WHICH PROVIDES THAT "WHENEVER THE ESTATE OF
ANY DECEASED DEBTOR  ... IS INSUFFICIENT TO PAY ALL THE DEBTS DUE FROM
THE DECEASED, THE DEBTS DUE TO THE UNITED STATES SHALL BE FIRST
SATISFIED," A CLAIM ASSERTED IN A STATE PROBATE PROCEEDING BY AN
OFFICIAL OF THE FARM CREDIT ADMINISTRATION FOR AND ON BEHALF OF THE
UNITED STATES, ON ACCOUNT OF UNPAID EMERGENCY FEED AND CROP LOANS MADE
PURSUANT TO THE ACTS OF FEBRUARY 23 AND JUNE 19, 1934, IS ENTITLED TO
PRIORITY.  PP. 541-545. 

2.  A DEBT OWED THE FARM CREDIT ADMINISTRATION IS A DEBT OWED THE
UNITED STATES WITHIN THE MEANING OF R.S. SEC. 3466.  PP. 541-542. 

3.  THE PRIORITY GIVEN BY R.S. SEC. 3466 TO DEBTS DUE TO THE UNITED
STATES IS UNAFFECTED BY THE FACT THAT A CLAIM BASED UPON SUCH A DEBT IS
FILED IN THE NAME OF AN AGENCY OF THE UNITED STATES OR AN AUTHORIZED
OFFICER OF SUCH AN AGENCY.  PP. 542-543. 

4.  THERE IS NO IRRECONCILABLE CONFLICT BETWEEN MAKING EMERGENCY
LOANS TO DISTRESSED FARMERS AND GRANTING PRIORITY TO THE COLLECTION OF
SUCH LOANS PURSUANT TO R.S. SEC. 3466.  PP. 543-545. 

5.  ONLY THE PLAINEST INCONSISTENCY WOULD WARRANT AN IMPLIED
EXCEPTION TO THE PRIORITY ESTABLISHED BY R.S. SEC. 3466.  PP. 544-545. 

UNITED STATES DEPARTMENT OF AGRICULTURE, EMERGENCY CROP AND FEED LOANS
V. REMUND, ADMINISTRATOR. 

CERTIORARI TO THE SUPREME COURT OF SOUTH DAKOTA. 

A CLAIM BY AN OFFICIAL OF THE FARM CREDIT ADMINISTRATION FOR AND ON
BEHALF OF THE UNITED STATES AGAINST THE ESTATE OF AN INSOLVENT DECEDENT
IN A STATE PROBATE PROCEEDING WAS DENIED PRIORITY UNDER R.S. SEC. 3466
BY A PROBATE COURT.  THE STATE SUPREME COURT AFFIRMED.  70 S.D. -, 23
N.W.2D 281.  THIS COURT GRANTED CERTIORARI.  329 U.S. 703.  REVERSED,
P. 545. 

OPINION OF THE COURT BY MR. JUSTICE MURPHY, ANNOUNCED BY MR. JUSTICE
RUTLEDGE. 

WE ARE FACED HERE WITH THE PROBLEM OF WHETHER, IN A STATE PROBATE
PROCEEDING, A CLAIM ASSERTED BY THE FARM CREDIT ADMINISTRATION THROUGH
CERTAIN OF ITS OFFICIALS FOR AND ON BEHALF OF THE UNITED STATES IS
ENTITLED TO PRIORITY UNDER SEC. 3466 OF THE REVISED STATUTES, 31 U.S.C.
SEC. 191. 

THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION, PURSUANT TO THE ACTS
OF FEBRUARY 23, 1934,  FN1 AND JUNE 19, 1934, FN2  EXTENDED EMERGENCY
FEED AND CROP LOANS TOTALLING $370.00 TO WILHELM BUTTKE, A SOUTH DAKOTA
FARMER.  MOST OF THESE LOANS REMAINED UNPAID.  ON DECEMBER 26, 1941,
BUTTKE DIED INTESTATE, LEAVING AN ESTATE INSUFFICIENT TO PAY ALL OF HIS
DEBTS.  RESPONDENT WAS APPOINTED ADMINISTRATOR OF THE ESTATE.  ON MARCH
2, 1942, AN AUTHORIZED AGENT OF THE GOVERNOR OF THE FARM CREDIT
ADMINISTRATION FILED IN THE COUNTY COURT OF ROBERTS COUNTY, SOUTH
DAKOTA, A CLAIM AGAINST THE ESTATE FOR $523.80, THE AMOUNT OF THE
UNPAID INDEBTEDNESS PLUS INTEREST.  THIS CLAIM WAS MADE "FOR AND ON
BEHALF OF THE UNITED STATES OF AMERICA" AND A PRIORITY THEREFOR ON
BEHALF OF THE UNITED STATES WAS ASSERTED UNDER SEC. 3466 OF THE REVISED
STATUTES. 

THE COUNTY COURT DENIED PREFERENCE TO THIS CLAIM.  BUT IT DID ALLOW
THE CLAIM IN THE AMOUNT OF $79.53, WHICH REPRESENTED THE PRO RATA SHARE
OF A COMMON CREDITOR'S CLAIM.  THIS DECISION WAS AFFIRMED BY THE
CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT OF SOUTH DAKOTA AND BY THE
SUPREME COURT OF SOUTH DAKOTA.  70 S.D. -, 23 N.W.2D 281.  THE LATTER
COURT FELT THAT THE ACTS OF FEBRUARY 23, 1934, AND JUNE 19, 1934,
CREATED AN EXCEPTION TO SEC. 3466 AND THAT THE CLAIMED PRIORITY SHOULD
ACCORDINGLY BE REFUSED ON THE AUTHORITY OF UNITED STATES V. GUARANTY
TRUST CO., 280 U.S. 478.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANT PROBLEMS THEREBY RAISED. 

THE RELEVANT PORTION OF SEC. 3466 OF THE REVISED STATUTES PROVIDES
THAT "...  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  ..." 

INITIALLY, IT IS SUGGESTED THAT SEC. 3466 IS INAPPLICABLE SINCE THE
CLAIM IN ISSUE IS NOT A DEBT DUE TO THE UNITED STATES.  THE CLAIM GROWS
OUT OF THE SEVEN NOTES EXECUTED BY THE DECEASED TO "THE GOVERNOR OF THE
FARM CREDIT ADMINISTRATION, OR ORDER, AT WASHINGTON, D.C."  THESE NOTES
STATED THAT THEY WERE "GIVEN AS EVIDENCE OF A LOAN MADE BY THE GOVERNOR
OF THE FARM CREDIT ADMINISTRATION."  ON THE PREMISE THAT THE FARM
CREDIT ADMINISTRATION IS AN ENTITY SEPARATE AND DISTINCT FROM THE
UNITED STATES GOVERNMENT, THE ARGUMENT IS MADE THAT OBLIGATIONS DUE THE
FARM CREDIT ADMINISTRATION FALL OUTSIDE THE PRIORITY ESTABLISHED BY
SEC. 3466.  WE CANNOT AGREE. 

THE FARM CREDIT ADMINISTRATION IS PLAINLY ONE OF THE MANY
ADMINISTRATIVE UNITS OF THE UNITED STATES GOVERNMENT, ESTABLISHED TO
CARRY OUT THE FUNCTIONS DELEGATED TO IT BY CONGRESS.  IT BEARS NONE OF
THE FEATURES OF A GOVERNMENT CORPORATION WITH A LEGAL ENTITY SEPARATE
FROM THAT OF THE UNITED STATES, WHATEVER DIFFERENCE THAT MIGHT MAKE AS
TO THE APPLICATION OF SEC. 3466.  CF. SLOAN SHIPYARDS CORP. V. UNITED
STATES FLEET CORP., 258 U.S. 549.  IT HAD ITS INCEPTION IN 1933 AS AN
INDEPENDENT AGENCY, ASSUMING THE FUNCTIONS OF THE FEDERAL FARM BOARD
AND THE FEDERAL FARM LOAN BOARD.  EXECUTIVE ORDER NO. 6084.  IN 1939,
IT WAS TRANSFERRED TO THE DEPARTMENT OF AGRICULTURE AND PLACED UNDER
THE GENERAL SUPERVISION AND DIRECTION OF THE SECRETARY OF AGRICULTURE. 
REORGANIZATION PLAN NO. 1, SEC. 401(A), 53 STAT. 1429, 4 FED. REG.
2730.  ITS FUNCTIONS, PERSONNEL AND PROPERTY WERE THEN CONSOLIDATED IN
1942 WITH THOSE OF CERTAIN OTHER AGENCIES TO FORM THE FOOD PRODUCTION
ADMINISTRATION OF THE DEPARTMENT OF AGRICULTURE.  EXECUTIVE ORDER NO.
9280, 7 FED. REG. 10179.  AT NO TIME HAS THE FARM CREDIT ADMINISTRATION
BEEN OTHER THAN AN UNINCORPORATED AGENCY OF THE UNITED STATES
GOVERNMENT, ADMINISTERING AND LENDING FUNDS APPROPRIATED BY CONGRESS
OUT OF THE UNITED STATES TREASURY AND RETURNING THE MONEY TO THE
TREASURY UPON REPAYMENT.  IN SHORT, IT IS AN INTEGRAL PART OF THE
GOVERNMENTAL MECHANISM.  AND THE USE OF A NAME OTHER THAN THAT OF THE
UNITED STATES CANNOT CHANGE THAT FACT.  UNITED STATES V. FONTENOT, 33
F.SUPP.  629; IN RE WILSON, 23 F.SUPP.  236; FEDERAL RESERVE BANK OF
DALLAS V. SMYLIE, (TEX. CIV. APP.) 134 S.W.2D 838; HELMS V. EMERGENCY
CROP & SEED LOAN OFFICE, 216 N.C. 581, 5 S.E.2D 822.  SEE ALSO NORTH
DAKOTA-MONTANA WHEAT GROWERS' ASSN. V. UNITED STATES, 66 F.2D 573. 
HENCE ANY DEBT OWED THE FARM CREDIT ADMINISTRATION IS A DEBT OWED THE
UNITED STATES WITHIN THE MEANING OF SEC. 3466. 

MOREOVER, THE PRIORITY GIVEN BY SEC. 3466 TO A DEBT DUE TO THE UNITED
STATES IS UNAFFECTED BY THE FACT THAT A CLAIM BASED UPON THAT DEBT IS
FILED IN THE NAME OF AN AGENCY OF THE UNITED STATES OR AN AUTHORIZED
OFFICER OF SUCH AN AGENCY.  IT IS ENOUGH THAT THERE IS AN OBLIGATION
OWED THE UNITED STATES.  WHETHER THE CLAIM IS FILED IN THE NAME OF THE
UNITED STATES OR IN THE NAME OF AN OFFICER OR AGENCY IS IMMATERIAL; IN
THE LATTER INSTANCE, THE CLAIM IS NECESSARILY FILED ON BEHALF OF THE
UNITED STATES AND THE LEGAL EFFECT IS THE SAME AS IF IT HAD BEEN FILED
IN THAT NAME.  NOTHING IN THE LANGUAGE OR POLICY OF SEC. 3466 JUSTIFIES
ANY OTHER CONCLUSION.  IT FOLLOWS THAT THE METHOD OF FILING IN THIS
CASE CANNOT BE QUESTIONED.  THE CLAIM WAS FILED IN THE NAME OF THE
GOVERNOR OF THE FARM CREDIT ADMINISTRATION "FOR AND ON BEHALF OF THE
UNITED STATES OF AMERICA" - AN EXPLICIT RECOGNITION OF THE LEGAL
REALITIES INVOLVED. 

THE MAIN CONTENTION, HOWEVER, IS THAT THE PURPOSE OF THE STATUTES
UNDER WHICH THE LOANS WERE MADE IS INCONSISTENT WITH SEC. 3466, THEREBY
RENDERING IT INAPPLICABLE.  THE ACTS OF FEBRUARY 23, 1934, AND JUNE 19,
1934, AUTHORIZED FEED AND CROP LOANS TO FARMERS IN DROUGHT AND STORM
STRICKEN AREAS OF THE NATION.  IT IS SAID THAT THE PRIME PURPOSE OF
THESE ACTS WAS TO RESTORE THE CREDIT OF THE FARMERS AND THAT TO GIVE
EFFECT TO SEC. 3466 WOULD IMPAIR THAT CREDIT.  RELIANCE IS PLACED UPON
UNITED STATES V. GUARANTY TRUST CO., SUPRA.  THIS COURT THERE HELD THAT
SEC. 3466 WAS INAPPLICABLE TO THE COLLECTION OF LOANS MADE BY THE
GOVERNMENT TO RAILROAD CARRIERS TO REHABILITATE AND MAINTAIN THEIR
CREDIT STATUS; IT WAS FELT THAT TO GIVE PRIORITY UNDER SUCH
CIRCUMSTANCES WOULD DEFEAT THE PURPOSE OF THE LEGISLATION BY IMPAIRING
THE CREDIT OF THE RAILROADS.  SEE ALSO COOK COUNTY NATIONAL BANK V.
UNITED STATES, 107 U.S. 445. 

BUT IT IS MANIFEST THAT THE PURPOSE OF THE ACTS OF FEBRUARY 23, 1934,
AND JUNE 19, 1934, WAS TO GIVE EMERGENCY RELIEF TO DISTRESSED FARMERS
RATHER THAN TO RESTORE THEIR CREDIT STATUS.  THESE WERE BUT TWO OF A
SERIES OF EMERGENCY FEED AND CROP LOAN STATUTES  FN3  ENACTED AT
VARIOUS TIMES FROM 1921 TO 1938, A PERIOD WHEN FARMERS WERE THE VICTIMS
OF REPEATED CROP FAILURES AND ADVERSE ECONOMIC CONDITIONS.  THEIR
CREDIT WAS OFTEN IMPAIRED, BUT THEIR MOST URGENT NEED WAS FOR MONEY TO
PURCHASE FEED AND TO PLANT CROPS; WITHOUT SUCH MONEY, DISTRESS AND
UNEMPLOYMENT MIGHT HAVE BEEN THEIR LOT.  IT WAS TO MEET THAT URGENT
NEED THAT CONGRESS PASSED THESE STATUTES. 

MORE SPECIFICALLY, THE TWO ACTS UNDER CONSIDERATION WERE DESIGNED TO
MAKE LOANS AVAILABLE TO THOSE FARMERS WHO WERE UNABLE TO SECURE CREDIT
FROM THE PRODUCTION CREDIT ASSOCIATIONS, ORGANIZED PURSUANT TO THE FARM
CREDIT ACT OF 1933.  FN4  IT WAS RECOGNIZED THAT MANY FARMERS COULD NOT
QUALIFY FOR LOANS FROM THOSE ASSOCIATIONS.  SOME METHOD OF LENDING AID
AND ASSISTANCE TO THOSE WHO HAD NO CREDIT AND NO MONEY WITH WHICH TO
BUY FEED FOR THEIR LIVESTOCK AND SEEDS FOR THEIR CROPS WAS ESSENTIAL IN
THE ABSENCE OF A MORE DIRECT FORM OF GOVERNMENT RELIEF.  S. REP. 148,
73D CONG., 2D SESS.; H. REP. 521, 73D CONG., 2D SESS.  AS WAS SAID BY
REPRESENTATIVE KERR, "LET IT BE REMEMBERED THAT THE GOVERNMENT IS NOT
SEEKING TO MAKE AN INVESTMENT; THIS IS SIMPLY AN ENDEAVOR TO FINANCE
THE FARMERS OF THIS COUNTRY WHO ARE UTTERLY UNABLE TO FINANCE
THEMSELVES."  78 CONG. REC. 1959.  SEE UNITED STATES V. THOMAS, 107
F.2D 765, 766; PERSON V. UNITED STATES, 112 F.2D 1, 2. 

WE CONCLUDE THAT THERE IS NO IRRECONCILABLE CONFLICT BETWEEN GIVING
EMERGENCY LOANS TO DISTRESSED FARMERS AND GIVING PRIORITY TO THE
COLLECTION OF THESE LOANS PURSUANT TO SEC. 3466.  SUCH PRIORITY COULD
IN NO WAY IMPAIR THE AID WHICH THE FARMERS SOUGHT THROUGH THESE LOANS;
NOR COULD IT EMBARRASS THE FARMERS IN THEIR DAILY OPERATIONS. 
MOREOVER, THESE LOANS CALLED FOR A FIRST LIEN ON CROPS GROWING OR TO BE
GROWN, OR ON LIVESTOCK.  THE CONDITIONS PREVAILING IN 1934 MADE THIS
TYPE OF SECURITY UNCERTAIN AND THERE IS NO INDICATION THAT CONGRESS
MEANT SUCH A LIEN TO BE THE SOLE SECURITY TO WHICH THE GOVERNMENT COULD
LOOK FOR REPAYMENT. 

WE REITERATE WHAT WAS SAID IN UNITED STATES V. EMORY, 314 U.S. 423,
433:  "ONLY THE PLAINEST INCONSISTENCY WOULD WARRANT OUR FINDING AN
IMPLIED EXCEPTION TO THE OPERATION OF SO CLEAR A COMMAND AS THAT OF
SEC. 3466."  IN THIS CASE, AS IN THAT, WE THINK SUCH INCONSISTENCY IS
WHOLLY WANTING.  UNITED STATES V. GUARANTY TRUST CO., SUPRA, IS
THEREFORE INAPPOSITE.  REVERSED. 

FN1  48 STAT. 354. 

FN2  48 STAT. 1021, 1056. 

FN3  41 STAT. 1347; 42 STAT. 467; 43 STAT. 110; 44 STAT. 1245, 1251;
45 STAT. 1306, AS AMENDED BY 46 STAT. 3; 46 STAT. 78, AS AMENDED BY 46
STAT. 254; 46 STAT. 1032, AS AMENDED BY 46 STAT. 1160; 46 STAT. 1276;
47 STAT. 5; 47 STAT. 795; 48 STAT. 354; 48 STAT. 1056; 49 STAT. 28; 50
STAT. 5; 52 STAT. 27. 

FN4  48 STAT. 257. 

MR. JUSTICE DOUGLAS WOULD AFFIRM THE JUDGMENT ON THE AUTHORITY OF
UNITED STATES V. GUARANTY TRUST CO., 280 U.S. 478. 
..END :


















TESTA V. KATT, 330 U.S. 386 


NO. 431.  ARGUED FEBRUARY 14, 1947.  - DECIDED MARCH 10, 1947.  - 71
R.I. 472, 47 A.2D 312, REVERSED. 


AMENDED, PROVIDES THAT A BUYER OF GOODS AT ABOVE THE CEILING PRICE MAY
SUE THE SELLER "IN ANY COURT OF COMPETENT JURISDICTION" FOR THREE TIMES
THE AMOUNT OF THE OVERCHARGE PLUS COSTS AND A REASONABLE ATTORNEY'S
FEE; AND SEC. 205(C) PROVIDES THAT THE FEDERAL DISTRICT COURTS SHALL
HAVE JURISDICTION OF SUCH SUITS "CONCURRENTLY WITH" STATE COURTS. 
HAVING PURCHASED AN AUTOMOBILE AT ABOVE THE CEILING PRICE, THE
PURCHASER SUED THE SELLER UNDER SEC. 205(E) AND OBTAINED JUDGMENT FOR
DAMAGES AND COSTS IN A STATE COURT HAVING ADEQUATE GENERAL JURISDICTION
TO ENFORCE SIMILAR CLAIMS ARISING UNDER STATE LAW.  ON APPEAL, THE
STATE SUPREME COURT REVERSED THE JUDGMENT ON THE GROUND THAT THE SUIT
WAS FOR A PENALTY BASED ON A STATUTE OF A FOREIGN SOVEREIGN AND COULD
NOT BE MAINTAINED IN THE STATE COURTS.  HELD:  ASSUMING, WITHOUT
DECIDING, THAT SEC. 205(E) IS A PENAL STATUTE, THE STATE COURTS WERE
NOT FREE UNDER ARTICLE VI OF THE CONSTITUTION TO REFUSE ENFORCEMENT OF
THE CLAIM.  CLAFLIN V. HOUSEMAN, 93 U.S. 130; MONDOU V. NEW YORK, N.H.
& H.R. CO., 223 U.S. 1.  PP. 389-394. 

TESTA ET AL. V. KATT. 

CERTIORARI TO THE SUPERIOR COURT FOR PROVIDENCE AND BRISTOL COUNTIES,
RHODE ISLAND. 

A STATE COURT OF COMPETENT JURISDICTION AWARDED THE PURCHASER OF AN
AUTOMOBILE AT ABOVE THE CEILING PRICE A JUDGMENT FOR DAMAGES AND COSTS
UNDER SEC. 205(E) OF THE EMERGENCY PRICE CONTROL ACT, 56 STAT. 34, AS
AMENDED.  THE STATE SUPREME COURT REVERSED AND, PURSUANT TO LOCAL
PRACTICE, REMITTED THE CASE AND RECORD TO THE SUPERIOR COURT.  71 R.I.
472, 47 A.2D 312.  THIS COURT GRANTED CERTIORARI.  329 U.S. 703. 
REVERSED AND REMANDED, P. 394. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A BUYER OF GOODS AT ABOVE THE PRESCRIBED CEILING PRICE MAY SUE THE
SELLER "IN ANY COURT OF COMPETENT JURISDICTION" FOR NOT MORE THAN THREE
TIMES THE AMOUNT OF THE OVERCHARGE PLUS COSTS AND A REASONABLE
ATTORNEY'S FEE.  SECTION 205(C)  FN2  PROVIDES THAT FEDERAL DISTRICT
COURTS SHALL HAVE JURISDICTION OF SUCH SUITS "CONCURRENTLY WITH STATE
AND TERRITORIAL COURTS."  SUCH A SUIT UNDER SEC. 205(E) MUST BE BROUGHT
"IN THE DISTRICT OR COUNTY IN WHICH THE DEFENDANT RESIDES OR HAS A
PLACE OF BUSINESS  ..." 

THE RESPONDENT WAS IN THE AUTOMOBILE BUSINESS IN PROVIDENCE,
PROVIDENCE COUNTY, RHODE ISLAND.  IN 1944 HE SOLD AN AUTOMOBILE TO
PETITIONER TESTA, WHO ALSO RESIDES IN PROVIDENCE, FOR $1100, $210 ABOVE
THE CEILING PRICE.  THE PETITIONER LATER FILED THIS SUIT AGAINST
RESPONDENT IN THE STATE DISTRICT COURT IN PROVIDENCE.  RECOVERY WAS
SOUGHT UNDER SEC. 205(E).  THE COURT AWARDED A JUDGMENT OF TREBLE
DAMAGES AND COSTS TO PETITIONER.  ON APPEAL TO THE STATE SUPERIOR
COURT, WHERE THE TRIAL WAS DE NOVO, THE PETITIONER WAS AGAIN AWARDED
JUDGMENT, BUT ONLY FOR THE AMOUNT OF THE OVERCHARGE PLUS ATTORNEY'S
FEES.  PENDING APPEAL FROM THIS JUDGMENT, THE PRICE ADMINISTRATOR WAS
ALLOWED TO INTERVENE.  ON APPEAL, THE STATE SUPREME COURT REVERSED, 71
R.I. 472, 47 A.2D 312.  IT INTERPRETED SEC. 205(E) TO BE "A PENAL
STATUTE IN THE INTERNATIONAL SENSE."  IT HELD THAT AN ACTION FOR
VIOLATION OF SEC. 205(E) COULD NOT BE MAINTAINED IN THE COURTS OF THAT
STATE.  THE STATE SUPREME COURT RESTED ITS HOLDING ON ITS EARLIER
DECISION IN ROBINSON V. NORATO, 71 R.I. 256, 43 A.2D 467(1945) IN WHICH
IT HAD REASONED THAT:  A STATE NEED NOT ENFORCE THE PENAL LAWS OF A
GOVERNMENT WHICH IS FOREIGN IN THE INTERNATIONAL SENSE; SEC. 205(E) IS
TREATED BY RHODE ISLAND AS PENAL IN THAT SENSE; THE UNITED STATES IS
"FOREIGN" TO THE STATE IN THE "PRIVATE INTERNATIONAL" AS DISTINGUISHED
FROM THE "PUBLIC INTERNATIONAL" SENSE; HENCE RHODE ISLAND COURTS,
THOUGH THEIR JURISDICTION IS ADEQUATE TO ENFORCE SIMILAR RHODE ISLAND
"PENAL" STATUTES, NEED NOT ENFORCE SEC. 205(E).  WHETHER STATE COURTS
MAY DECLINE TO ENFORCE FEDERAL LAWS ON THESE GROUNDS IS A QUESTION OF
GREAT IMPORTANCE.  FOR THIS REASON, AND BECAUSE THE RHODE ISLAND
SUPREME COURT'S HOLDING WAS ALLEGED TO CONFLICT WITH THIS COURT'S
PREVIOUS HOLDING IN MONDOU V. NEW YORK, N.H. & H.R. CO., 223 U.S. 1, WE
GRANTED CERTIORARI.  329 U.S. 703.  FN3 

FOR THE PURPOSES OF THIS CASE, WE ASSUME, WITHOUT DECIDING, THAT SEC.
205(E) IS A PENAL STATUTE IN THE "PUBLIC INTERNATIONAL," "PRIVATE
INTERNATIONAL," OR ANY OTHER SENSE.  SO FAR AS THE QUESTION OF WHETHER
THE RHODE ISLAND COURTS PROPERLY DECLINED TO TRY THIS ACTION, IT MAKES
NO DIFFERENCE INTO WHICH OF THESE CATEGORIES THE RHODE ISLAND COURT
CHOSE TO PLACE THE STATUTE WHICH CONGRESS HAS PASSED.  FOR WE CANNOT
ACCEPT THE BASIC PREMISE ON WHICH THE RHODE ISLAND SUPREME COURT HELD
THAT IT HAS NO MORE OBLIGATION TO ENFORCE A VALID PENAL LAW OF THE
UNITED STATES THAN IT HAS TO ENFORCE A PENAL LAW OF ANOTHER STATE OR A
FOREIGN COUNTRY.  SUCH A BROAD ASSUMPTION FLIES IN THE FACE OF THE FACT
THAT THE STATES OF THE UNION CONSTITUTE A NATION.  IT DISREGARDS THE
PURPOSE AND EFFECT OF ARTICLE VI OF THE CONSTITUTION WHICH PROVIDES:
"THIS CONSTITUTION, AND THE LAWS OF THE UNITED STATES WHICH SHALL BE 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." 

IT CANNOT BE ASSUMED, THE SUPREMACY CLAUSE CONSIDERED, THAT THE
RESPONSIBILITIES OF A STATE TO ENFORCE THE LAWS OF A SISTER STATE ARE
IDENTICAL WITH ITS RESPONSIBILITIES TO ENFORCE FEDERAL LAWS.  SUCH AN
ASSUMPTION REPRESENTS AN ERRONEOUS EVALUATION OF THE STATUTES OF
CONGRESS AND THE PRIOR DECISIONS OF THIS COURT IN THEIR HISTORIC
SETTING.  THOSE DECISIONS ESTABLISH THAT STATE COURTS DO NOT BEAR THE
SAME RELATION TO THE UNITED STATES THAT THEY DO TO FOREIGN COUNTRIES. 
THE FIRST CONGRESS THAT CONVENED AFTER THE CONSTITUTION WAS ADOPTED
CONFERRED JURISDICTION UPON THE STATE COURTS TO ENFORCE IMPORTANT
FEDERAL CIVIL LAWS,  FN4  AND SUCCEEDING CONGRESSES CONFERRED ON THE
STATES JURISDICTION OVER FEDERAL CRIMES AND ACTIONS FOR PENALTIES AND
FORFEITURES.  FN5 

ENFORCEMENT OF FEDERAL LAWS BY STATE COURTS DID NOT GO UNCHALLENGED. 
VIOLENT PUBLIC CONTROVERSIES EXISTED THROUGHOUT THE FIRST PART OF THE
NINETEENTH CENTURY UNTIL THE 1860'S CONCERNING THE EXTENT OF THE
CONSTITUTIONAL SUPREMACY OF THE FEDERAL GOVERNMENT.  DURING THAT PERIOD
THERE WERE INSTANCES IN WHICH THIS COURT AND STATE COURTS BROADLY
QUESTIONED THE POWER AND DUTY OF STATE COURTS TO EXERCISE THEIR
JURISDICTION TO ENFORCE UNITED STATES CIVIL AND PENAL STATUTES OR THE
POWER OF THE FEDERAL GOVERNMENT TO REQUIRE THEM TO DO SO.  FN6  BUT
AFTER THE FUNDAMENTAL ISSUES OVER THE EXTENT OF FEDERAL SUPREMACY HAD
BEEN RESOLVED BY WAR, THIS COURT TOOK OCCASION IN 1876 TO REVIEW THE
PHASE OF THE CONTROVERSY CONCERNING THE RELATIONSHIP OF STATE COURTS TO
THE FEDERAL GOVERNMENT.  CLAFLIN V. HOUSEMAN, 93 U.S. 130.  THE OPINION
OF A UNANIMOUS COURT IN THAT CASE WAS STRONGLY BUTTRESSED BY HISTORIC
REFERENCES AND PERSUASIVE REASONING.  IT REPUDIATED THE ASSUMPTION THAT
FEDERAL LAWS CAN BE CONSIDERED BY THE STATES AS THOUGH THEY WERE LAWS
EMANATING FROM A FOREIGN SOVEREIGN.  ITS TEACHING IS THAT THE
CONSTITUTION AND THE LAWS PASSED PURSUANT TO IT ARE THE SUPREME LAWS OF
THE LAND, BINDING ALIKE UPON STATES, COURTS, AND THE PEOPLE, "ANY THING
IN THE CONSTITUTION OR LAWS OF ANY STATE TO THE CONTRARY
NOTWITHSTANDING."  FN7 IT ASSERTED THAT THE OBLIGATION OF STATES TO
ENFORCE THESE FEDERAL LAWS IS NOT LESSENED BY REASON OF THE FORM IN
WHICH THEY ARE CAST OR THE REMEDY WHICH THEY PROVIDE.  AND THE COURT
STATED THAT "IF AN ACT OF CONGRESS GIVES A PENALTY TO A PARTY
AGGRIEVED, WITHOUT SPECIFYING A REMEDY FOR ITS ENFORCEMENT, THERE IS NO
REASON WHY IT SHOULD NOT BE ENFORCED, IF NOT PROVIDED OTHERWISE BY SOME
ACT OF CONGRESS, BY A PROPER ACTION IN A STATE COURT."  ID. AT 137. 
AND SEE UNITED STATES V. BANK OF NEW YORK, 296 U.S. 463, 479. 

THE CLAFLIN OPINION THUS ANSWERED MOST OF THE ARGUMENTS THERETOFORE
ADVANCED AGAINST THE POWER AND DUTY OF STATE COURTS TO ENFORCE FEDERAL
PENAL LAWS.  AND SINCE THAT DECISION, THE REMAINING AREAS OF DOUBT HAVE
BEEN STEADILY NARROWED.  FN8  THERE HAVE BEEN STATEMENTS IN CASES
CONCERNED WITH THE OBLIGATION OF STATES TO GIVE FULL FAITH AND CREDIT
TO THE PROCEEDINGS OF SISTER STATES WHICH SUGGESTED A THEORY CONTRARY
TO THAT PRONOUNCED IN THE CLAFLIN OPINION.  FN9  BUT WHEN IN MONDOU V.
NEW YORK, N.H. & H.R. CO., 223 U.S. 1, THIS COURT WAS PRESENTED WITH A
CASE TESTING THE POWER AND DUTY OF STATES TO ENFORCE FEDERAL LAWS, IT
FOUND THE SOLUTION IN THE BROAD PRINCIPLES ANNOUNCED IN THE CLAFLIN
OPINION. 

THE PRECISE QUESTION IN THE MONDOU CASE WAS WHETHER RIGHTS ARISING
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 36 STAT. 291, COULD "BE
ENFORCED, AS OF RIGHT, IN THE COURTS OF THE STATES WHEN THEIR
JURISDICTION, AS FIXED BY LOCAL LAWS, IS ADEQUATE TO THE OCCASION
..."  ID. AT 46.  THE SUPREME COURT OF CONNECTICUT HAD DECIDED THAT
THEY COULD NOT.  EXCEPT FOR THE PENALTY FEATURE, THE FACTORS IT
CONSIDERED AND ITS REASONING WERE STRIKINGLY SIMILAR TO THAT ON WHICH
THE RHODE ISLAND SUPREME COURT DECLINED TO ENFORCE THE FEDERAL LAW HERE
INVOLVED.  BUT THIS COURT HELD THAT THE CONNECTICUT COURT COULD NOT
DECLINE TO ENTERTAIN THE ACTION.  THE CONTENTION THAT ENFORCEMENT OF
THE CONGRESSIONALLY CREATED RIGHT WAS CONTRARY TO CONNECTICUT POLICY
WAS ANSWERED AS FOLLOWS: 

"THE SUGGESTION THAT THE ACT OF CONGRESS IS NOT IN HARMONY WITH THE
POLICY OF THE STATE, AND THEREFORE THAT THE COURTS OF THE STATE ARE
FREE TO DECLINE JURISDICTION, IS QUITE INADMISSIBLE, BECAUSE IT
PRESUPPOSES WHAT IN LEGAL CONTEMPLATION DOES NOT EXIST.  WHEN CONGRESS,
IN THE EXERTION OF THE POWER CONFIDED TO IT BY THE CONSTITUTION,
ADOPTED THAT ACT, IT SPOKE FOR ALL THE PEOPLE AND ALL THE STATES, AND
THEREBY ESTABLISHED A POLICY FOR ALL.  THAT POLICY IS AS MUCH THE
POLICY OF CONNECTICUT AS IF THE ACT HAD EMANATED FROM ITS OWN
LEGISLATURE, AND SHOULD BE RESPECTED ACCORDINGLY IN THE COURTS OF THE
STATE."  MONDOU V. NEW YORK, N.H. & H.R. CO., SUPRA AT 57. 

SO HERE, THE FACT THAT RHODE ISLAND HAS AN ESTABLISHED POLICY AGAINST
ENFORCEMENT BY ITS COURTS OF STATUTES OF OTHER STATES AND THE UNITED
STATES WHICH IT DEEMS PENAL, CANNOT BE ACCEPTED AS A "VALID EXCUSE." 
CF. DOUGLAS V. NEW YORK, N.H. & H.R. CO., 279 U.S. 377, 388.  FN10  FOR
THE POLICY OF THE FEDERAL ACT IS THE PREVAILING POLICY IN EVERY STATE. 
THUS, IN A CASE WHICH CHIEFLY RELIED UPON THE CLAFLIN AND MONDOU
PRECEDENTS, THIS COURT STATED THAT A STATE COURT CANNOT "REFUSE TO
ENFORCE THE RIGHT ARISING FROM THE LAW OF THE UNITED STATES BECAUSE OF
CONCEPTIONS OF IMPOLICY OR WANT OF WISDOM ON THE PART OF CONGRESS IN
HAVING CALLED INTO PLAY ITS LAWFUL POWERS."  MINNEAPOLIS & ST. L. R.
CO. V. BOMBOLIS, 241 U.S. 211, 222. 

THE RHODE ISLAND COURT IN ITS ROBINSON DECISION, ON WHICH IT RELIES,
CITES CASES OF THIS COURT WHICH HAVE HELD THAT STATES ARE NOT REQUIRED
BY THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION TO ENFORCE
JUDGMENTS OF THE COURTS OF OTHER STATES BASED ON CLAIMS ARISING OUT OF
PENAL STATUTES.  FN11  BUT THOSE HOLDINGS HAVE NO RELEVANCE HERE, FOR
THIS CASE RAISES NO FULL FAITH AND CREDIT QUESTION.  NOR NEED WE
CONSIDER IN THIS CASE PRIOR DECISIONS TO THE EFFECT THAT FEDERAL COURTS
ARE NOT REQUIRED TO ENFORCE STATE PENAL LAWS.  COMPARE WISCONSIN V.
PELICAN INS. CO., 127 U.S. 265, WITH MASSACHUSETTS V. MISSOURI, 308
U.S. 1, 20.  FOR WHATEVER CONSIDERATION THEY MAY BE ENTITLED TO IN THE
FIELD IN WHICH THEY ARE RELEVANT, THOSE DECISIONS DID NOT BRING BEFORE
US OUR INSTANT PROBLEM OF THE EFFECT OF THE SUPREMACY CLAUSE ON THE
RELATION OF FEDERAL LAWS TO STATE COURTS.  OUR QUESTION CONCERNS ONLY
THE RIGHT OF A STATE TO DENY ENFORCEMENT TO CLAIMS GROWING OUT OF A
VALID FEDERAL LAW. 

IT IS CONCEDED THAT THIS SAME TYPE OF CLAIM ARISING UNDER RHODE
ISLAND LAW WOULD BE ENFORCED BY THAT STATE'S COURTS.  ITS COURTS HAVE
ENFORCED CLAIMS FOR DOUBLE DAMAGES GROWING OUT OF THE FAIR LABOR
STANDARDS ACT.  FN12  THUS THE RHODE ISLAND COURTS HAVE JURISDICTION
ADEQUATE AND APPROPRIATE UNDER ESTABLISHED LOCAL LAW TO ADJUDICATE THIS
ACTION.  FN13  UNDER THESE CIRCUMSTANCES THE STATE COURTS ARE NOT FREE
TO REFUSE ENFORCEMENT OF PETITIONERS' CLAIM.  SEE MCKNETT V. ST. LOUIS
& S.F.R. CO., 292 U.S. 230; AND COMPARE HERB V. PITCAIRN, 324 U.S. 117;
325 U.S. 77.  THE CASE IS REVERSED AND THE CAUSE IS REMANDED FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  "(E)  IF ANY PERSON SELLING A COMMODITY VIOLATES A REGULATION,
ORDER, OR PRICE SCHEDULE PRESCRIBING A MAXIMUM PRICE OR MAXIMUM PRICES,
THE PERSON WHO BUYS SUCH COMMODITY FOR USE OR CONSUMPTION OTHER THAN IN
THE COURSE OF TRADE OR BUSINESS MAY, WITHIN ONE YEAR FROM THE DATE OF
THE OCCURRENCE OF THE VIOLATION, EXCEPT AS HEREINAFTER PROVIDED, BRING
AN ACTION AGAINST THE SELLER ON ACCOUNT OF THE OVERCHARGE.  IN SUCH
ACTION, THE SELLER SHALL BE LIABLE FOR REASONABLE ATTORNEY'S FEES AND
COSTS AS DETERMINED BY THE COURT, PLUS WHICHEVER OF THE FOLLOWING SUMS
IS THE GREATER:  (1) SUCH AMOUNT NOT MORE THAN THREE TIMES THE AMOUNT
OF THE OVERCHARGE, OR THE OVERCHARGES, UPON WHICH THE ACTION IS BASED
AS THE COURT IN ITS DISCRETION MAY DETERMINE, OR (2) AN AMOUNT NOT LESS
THAN $25 NOR MORE THAN $50, AS THE COURT IN ITS DISCRETION MAY
DETERMINE:... ANY ACTION UNDER THIS SUBSECTION BY EITHER THE BUYER OR
THE ADMINISTRATOR, AS THE CASE MAY BE, MAY BE BROUGHT IN ANY COURT OF
COMPETENT JURISDICTION...."  56 STAT. 34 AS AMENDED, 58 STAT. 632, 640,
50 U.S.C. APP., SUPP. V, SEC. 925(E). 

FN2  "THE DISTRICT COURTS SHALL HAVE JURISDICTION OF CRIMINAL
PROCEEDINGS  ...  AND, CONCURRENTLY WITH STATE AND TERRITORIAL COURTS,
OF ALL OTHER PROCEEDINGS UNDER SECTION 205 OF THIS ACT...."  56 STAT.
32, AS AMENDED, 58 STAT. 632, 640, 50 U.S.C. APP., SUPP. V, SEC.
925(C). 

FN3  PURSUANT TO RHODE ISLAND PRACTICE, THE STATE SUPREME COURT
REMITTED THE CASE AND THE RECORD TO THE SUPERIOR COURT.  THAT COURT
THEN ENTERED JUDGMENT IN ACCORDANCE WITH THE SUPREME COURT'S OPINION. 
IT IS THE JUDGMENT OF THE SUPERIOR COURT WHICH PETITIONER ASKED US TO
REVIEW ON CERTIORARI.  SEE JOSLIN CO. V. PROVIDENCE, 262 U.S. 668,
673.    FN4  JUDICIARY ACT OF 1789, 1 STAT. 73, 77(SUITS BY ALIENS FOR
TORTS COMMITTED IN VIOLATION OF FEDERAL LAWS AND TREATIES; SUITS BY THE
UNITED STATES). 

FN5  1 STAT. 376, 378(1794)(FINES, FORFEITURES AND PENALTIES FOR
VIOLATION OF THE LICENSE TAX ON WINES AND SPIRITS); 1 STAT. 373,
375(1794)(THE CARRIAGE TAX ACT); 1 STAT. 452(1796)(PENALTY FOR
PURCHASING GUNS FROM INDIANS); 1 STAT. 733, 740(1799)(CRIMINAL AND
CIVIL ACTIONS FOR VIOLATION OF THE POSTAL LAWS).  SEE WARREN, FEDERAL
CRIMINAL LAWS AND THE STATE COURTS, 38 HARV. L. REV. 545; BARNETT, THE
DELEGATION OF FEDERAL JURISDICTION TO STATE COURTS, 3 SELECTED ESSAYS
ON CONSTITUTIONAL LAW 1202(1938). 

FN6  SEE E.G., MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304, 334-337;
UNITED STATES V. BAILEY, 9 PET. 238, 259-260; PRIGG V. PENNSYLVANIA, 16
PET. 539, 615; FOX V. OHIO, 5 HOW.  410, 438; UNITED STATES V. LATHROP,
17 JOHNS.  (N.Y.)  4(1819).  SEE ALSO WARREN, SUPRA, 580-584. 

FN7  U.S. CONST. ART. VI.  SEE ALSO EX PARTE SIEBOLD, 100 U.S. 371,
392-394. 

FN8  TENNESSEE V. DAVIS, 100 U.S. 257; MONDOU V. NEW YORK, N.H. &
H.R. CO., 223 U.S. 1; MINNEAPOLIS & ST. L.R. CO. V. BOMBOLIS, 241 U.S.
211; MCKNETT V. ST. LOUIS & S.F.R. CO., 292 U.S. 230; BALTIMORE &
O.R.R. V. KEPNER, 314 U.S. 44; MILES V. ILLINOIS C.R. CO., 315 U.S.
698; HERB V. PITCAIRN, 324 U.S. 117, 121-123; 325 U.S. 77. 

FN9  SEE N. 10, INFRA. 

FN10  IT HAS BEEN OBSERVED THAT THE HISTORIC ORIGIN OF THE CONCEPT
FIRST EXPRESSED IN THIS COUNTRY BY CHIEF JUSTICE MARSHALL IN THE
ANTELOPE, 10 WHEAT.  66, 123, THAT "THE COURTS OF NO COUNTRY EXECUTE
THE PENAL LAWS OF ANOTHER  ..."  LIES IN AN EARLIER ENGLISH CASE,
FOLLIOTT V. OGDEN, 1 H. BL. 124(1789), AFF'D., OGDEN V. FOLLIOTT, 3
T.R. 726(1790), 4 BRO. P.C. 111.  IN THAT CASE THE ENGLISH COURTS
REFUSED TO ENFORCE AN AMERICAN REVOLUTIONARY STATUTE CONFISCATING
PROPERTY OF LOYAL BRITISH SUBJECTS ON THE GROUND THAT ENGLISH COURTS
MUST REFUSE TO ENFORCE SUCH PENAL STATUTES OF A FOREIGN ENEMY.  IT HAS
BEEN OBSERVED OF THIS CASE THAT "OF COURSE THEY COULD AS WELL HAVE
SPOKEN OF LOCAL PUBLIC POLICY, AND HAVE REACHED THE SAME RESULT AS
SURELY."  LEFLAR, EXTRASTATE ENFORCEMENT OF PENAL AND GOVERNMENTAL
CLAIMS, 46 HARV. L. REV. 193, 195(1932).  SEE GRIFFIN V. MCCOACH, 313
U.S. 498; CF. HINES V. LOWREY, 305 U.S. 85. 

FN11  SEE E.G., HUNTINGTON V. ATTRILL, 146 U.S. 657; ANGLO-AMERICAN
PROVISION CO. V. DAVIS PROVISION CO. NO. 1, 191 U.S. 373; KENNEY V.
SUPREME LODGE, 252 U.S. 411. 

FN12  NEWMAN V. GEO. A. FULLER CO., 72 R.I. 113, 48 A.2D 345. 

FN13  GEN. LAWS R.I. (1938) C. 500, SEC. 28; C. 525, SEC. 7; C. 631,
SEC. 4. 
..END :























BROTHERHOOD OF CARPENTERS V. U.S., 330 U.S. 395 


ARGUED MARCH 8, 1945.  REARGUED APRIL 29, 30, 1946 AND OCTOBER 15, 16,
1946.  - DECIDED MARCH 10, 1947.  - 144 F.2D 546, REVERSED. 


A GROUP OF LOCAL MANUFACTURERS OF AND DEALERS IN MILLWORK AND
PATTERNED LUMBER AND THEIR INCORPORATED TRADE ASSOCIATIONS AND
OFFICIALS THEREOF AND A GROUP OF UNINCORPORATED TRADE UNIONS AND THEIR
OFFICIALS OR BUSINESS AGENTS WERE INDICTED FOR CONSPIRACY TO VIOLATE
SEC. 1 OF THE SHERMAN ACT.  THE INDICTMENT CHARGED THAT THEY UNLAWFULLY
COMBINED AND CONSPIRED TOGETHER, SUCCESSFULLY, TO MONOPOLIZE UNDULY A
PART OF INTERSTATE COMMERCE IN THE COMMODITIES, FOR THE PURPOSE AND
WITH THE EFFECT OF RESTRAINING OUT-OF-STATE MANUFACTURERS FROM SHIPPING
AND SELLING THE COMMODITIES WITHIN A CERTAIN AREA AND OF PREVENTING
DEALERS IN THAT AREA FROM FREELY HANDLING THEM, AND ALSO FOR THE
PURPOSE OF RAISING THE PRICES OF THE COMMODITIES; THAT, TO ACHIEVE THIS
PURPOSE, A CONTRACT WAS ENTERED INTO BETWEEN DEFENDANTS FOR A WAGE
SCALE FOR MEMBERS OF LABOR UNIONS WORKING ON THE ARTICLES, COMBINED
WITH A RESTRICTIVE CLAUSE THAT "NO MATERIAL WILL BE PURCHASED FROM, AND
NO WORK WILL BE DONE ON ANY MATERIAL OR ARTICLE THAT HAS HAD ANY
OPERATION PERFORMED ON SAME BY SAW MILLS, MILLS OR CABINET SHOPS, OR
THEIR DISTRIBUTORS THAT DO NOT CONFORM TO THE RATES OF WAGE AND WORKING
CONDITIONS OF THIS AGREEMENT"; AND THAT THIS CLAUSE WAS ENFORCED TO THE
MUTUAL ADVANTAGE OF DEFENDANTS AND TO THE DISADVANTAGE OF OTHER
MANUFACTURERS AND OF CONSUMERS.  HELD: 

1.  CONSPIRACIES BETWEEN EMPLOYERS AND EMPLOYEES TO RESTRAIN
INTERSTATE COMMERCE VIOLATE SEC. 1 OF THE SHERMAN ACT.  ALLEN BRADLEY
CO. V. LOCAL UNION NO. 3, 325 U.S. 797.  PP. 400, 411. 

2.  THE INDICTMENT CHARGES A CONSPIRACY FORBIDDEN BY THE SHERMAN
ACT.  P. 401. 

3.  ON THAT ISSUE, THE POWER OF THE TRIAL COURT IS LIMITED BY SEC. 6
OF THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, WHICH APPLIES TO ALL COURTS
OF THE UNITED STATES IN ALL MATTERS GROWING OUT OF LABOR DISPUTES
COVERED BY THE ACT WHICH MAY COME BEFORE THEM.  P. 401. 

4.  THE PURPOSE AND EFFECT OF SEC. 6 OF THE NORRIS-LAGUARDIA ACT IS
TO RELIEVE ORGANIZATIONS, WHETHER OF LABOR OR CAPITAL, AND MEMBERS OF
THOSE ORGANIZATIONS FROM LIABILITY FOR DAMAGES OR IMPUTATIONS OF GUILT
FOR LAWLESS ACTS DONE IN LABOR DISPUTES BY SOME INDIVIDUAL OFFICERS OR
MEMBERS OF THE ORGANIZATION, WITHOUT CLEAR PROOF THAT THE ORGANIZATION
OR MEMBER CHARGED WITH RESPONSIBILITY FOR THE OFFENSE ACTUALLY
PARTICIPATED, GAVE PRIOR AUTHORIZATION OR RATIFIED SUCH ACTS AFTER
ACTUAL KNOWLEDGE OF THEIR PERPETRATION.  P. 403. 

5.  THE WORD "ORGANIZATION," AS USED IN THE ACT, IS NOT RESTRICTED TO
UNINCORPORATED ENTITIES BUT COVERS GENERICALLY ALL ORGANIZATIONS THAT
TAKE PART IN LABOR DISPUTES, INCLUDING CORPORATIONS.  P. 403, N. 12. 

6.  WHILE PARTICIPANTS IN A CONSPIRACY COVERED BY SEC. 6 ARE NOT
IMMUNIZED FROM RESPONSIBILITY FOR AUTHORIZED ACTS IN FURTHERANCE OF
SUCH A CONSPIRACY, THEY ARE PROTECTED AGAINST LIABILITY FOR
UNAUTHORIZED ILLEGAL ACTS OF OTHER PARTICIPANTS IN THE CONSPIRACY.  P.
404. 

7.  AS USED IN SEC. 6, "AUTHORIZATION" MEANS SOMETHING DIFFERENT FROM
CORPORATE CRIMINAL RESPONSIBILITY FOR THE ACTS OF OFFICERS AND AGENTS
IN THE COURSE OR SCOPE OF EMPLOYMENT.  ITS REQUIREMENT RESTRICTS THE
RESPONSIBILITY OR LIABILITY IN LABOR DISPUTES OF EMPLOYER OR EMPLOYEE
ASSOCIATIONS, ORGANIZATIONS OR THEIR MEMBERS FOR UNLAWFUL ACTS OF THE
OFFICERS OR MEMBERS OF THOSE ASSOCIATIONS OR ORGANIZATIONS, ALTHOUGH
SUCH OFFICERS OR MEMBERS ARE ACTING WITHIN THE SCOPE OF THEIR GENERAL
AUTHORITY AS SUCH OFFICERS OR MEMBERS, TO THOSE ASSOCIATIONS,
ORGANIZATIONS OR THEIR OFFICERS OR MEMBERS WHO ACTUALLY PARTICIPATE IN
THE UNLAWFUL ACTS, EXCEPT UPON CLEAR PROOF THAT THE PARTICULAR ACT
CHARGED, OR ACTS GENERALLY OF THAT TYPE AND QUALITY, HAD BEEN EXPRESSLY
AUTHORIZED, OR NECESSARILY FOLLOWED FROM AUTHORITY GRANTED, BY THE
ASSOCIATION OR NON-PARTICIPATING MEMBER SOUGHT TO BE CHARGED OR WAS
SUBSEQUENTLY RATIFIED BY SUCH ASSOCIATION, ORGANIZATION OR MEMBER AFTER
ACTUAL KNOWLEDGE OF ITS OCCURRENCE.  PP. 406-407. 

8.  A REFUSAL TO INSTRUCT THE JURY TO THIS EFFECT IS REVERSIBLE ERROR
- AS TO BOTH INDIVIDUALS AND ORGANIZATIONS AND AS TO BOTH EMPLOYERS AND
EMPLOYEES - NO MATTER HOW CLEAR THE EVIDENCE MAY BE OF PARTICIPATION IN
THE CONSPIRACY, SINCE THE DEFENDANTS ARE ENTITLED TO HAVE THE JURY
INSTRUCTED IN ACCORDANCE WITH THE STANDARDS WHICH CONGRESS HAS
PRESCRIBED.  PP. 407-412. 

9.  PRIOR TO THE DECISION OF THIS COURT IN ALLEN BRADLEY CO. V. LOCAL
UNION NO. 3, SUPRA, TWO EMPLOYER GROUPS, EACH CONTAINING AN
INCORPORATED TRADE ASSOCIATION AND ITS OFFICERS AND MEMBERS, BOTH
INDIVIDUAL AND CORPORATE, DEMURRED TO THE INDICTMENT IN THIS CASE ON
THE GROUND THAT, AS THE RESTRICTIVE AGREEMENT WAS DIRECTED AT THE
MAINTENANCE OF PROPER WORKING CONDITIONS, THE INDICTMENT DID NOT STATE
A CRIME UNDER THE SHERMAN ACT.  THE DEMURRER WAS OVERRULED AND THEY
PLEADED NOLO CONTENDERE.  THIS COURT GRANTED CERTIORARI AS TO THEM. 
HELD:  IN VIEW OF THE UNCERTAINTY EXISTING, AT THE TIME OF THEIR PLEAS
OF NOLO CONTENDERE, AS TO LIABILITY FOR CONTRACTS BETWEEN GROUPS OF
EMPLOYERS AND GROUPS OF EMPLOYEES THAT RESTRAINED INTERSTATE COMMERCE
AND AS TO THE APPLICATION OF SEC. 6 OF THE NORRIS-LAGUARDIA ACT, THEY
SHOULD HAVE AN OPPORTUNITY TO MAKE DEFENSE TO THE INDICTMENT,
NOTWITHSTANDING THEIR PLEAS OF NOLO CONTENDERE.  PP. 411-412. 

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA V. UNITED
STATES. 

NO. 6.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT* . 

*TOGETHER WITH NO. 7, BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS ET
AL. V. UNITED STATES; NO. 8, LUMBER PRODUCTS ASSOCIATION, INC. ET AL.
V. UNITED STATES; NO. 9, ALAMEDA COUNTY BUILDING AND CONSTRUCTION
TRADES COUNCIL V. UNITED STATES; AND NO. 10, BOORMAN LUMBER CO. ET AL.
V. UNITED STATES, ALSO ON CERTIORARI TO THE SAME COURT. 

PETITIONERS WERE CONVICTED IN A FEDERAL DISTRICT COURT OF A
CONSPIRACY TO VIOLATE SEC. 1 OF THE SHERMAN ACT, 15 U.S.C. SEC. 1.  42
F.SUPP.  910.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  144 F.2D 546. 
THIS COURT GRANTED CERTIORARI.  323 U.S. 706-7.  REVERSED AND REMANDED,
P. 412. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE ARE CRIMINAL CASES IN WHICH CONVICTION OF VARIOUS DEFENDANTS
HAS BEEN OBTAINED IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, AND AFFIRMED BY THE
CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT, 144 F.2D 546.  THEY
WERE CHARGED WITH CONSPIRACY TO VIOLATE THE SHERMAN ACT, SEC. 1.  FN1
THE PARTIES TO THE ALLEGED CONSPIRACY WERE OF TWO GROUPS:  ON THE ONE
HAND, LOCAL MANUFACTURERS OF AND DEALERS IN THE COMMODITIES AFFECTED
AND THEIR INCORPORATED TRADE ASSOCIATIONS AND OFFICIALS THEREOF; AND,
ON THE OTHER, UNINCORPORATED TRADE UNIONS AND THEIR OFFICIALS OR
BUSINESS AGENTS.  THE INDICTMENT CHARGED THAT THE DEFENDANTS BELOW
UNLAWFULLY COMBINED AND CONSPIRED TOGETHER, SUCCESSFULLY, TO MONOPOLIZE
UNDULY A PART OF INTERSTATE COMMERCE IN MILLWORK AND PATTERNED LUMBER. 
THE PURPOSE AND EFFECT OF THE CONSPIRACY WAS ALLEGED TO BE TO RESTRAIN
OUT-OF-STATE MANUFACTURERS FROM SHIPPING AND SELLING THESE COMMODITIES
WITHIN THE SAN FRANCISCO BAY AREA OF CALIFORNIA AND TO PREVENT THE
DEALERS IN THAT AREA FROM FREELY HANDLING THEM.  IT WAS ALLEGED THAT
THE CONSPIRACY ALSO SOUGHT TO RAISE THE PRICES OF THE PRODUCTS
AFFECTED.  TO ACHIEVE THE PURPOSE, A CONTRACT WAS ENTERED INTO BETWEEN
THE DEFENDANTS FOR A WAGE SCALE FOR MEMBERS OF LABOR UNIONS WORKING ON
THE ARTICLES INVOLVED, COMBINED WITH A RESTRICTIVE CLAUSE, "...  NO
MATERIAL WILL BE PURCHASED FROM, AND NO WORK WILL BE DONE ON ANY
MATERIAL OR ARTICLE THAT HAS HAD ANY OPERATION PERFORMED ON SAME BY SAW
MILLS, MILLS OR CABINET SHOPS, OR THEIR DISTRIBUTORS THAT DO NOT
CONFORM TO THE RATES OF WAGE AND WORKING CONDITIONS OF THIS AGREEMENT,"
WITH SPECIFIED EXCEPTIONS NOT HERE MATERIAL.  THIS CLAUSE, IT IS
ALLEGED, WAS ENFORCED TO THE MUTUAL ADVANTAGE OF THE CONSPIRATORS BY
SOME OF THE PARTIES THROUGH CONFERENCE OR PICKETING OR ACQUIESCENCE IN
THE ARRANGEMENT.  BY MEANS OF THE CONSPIRACY, UNION WORKMEN OBTAINED
BETTER WAGES, THE EMPLOYERS HIGHER PROFITS AND MANUFACTURERS AGAINST
WHOM THE CONSPIRACY WAS DIRECTED WERE LARGELY PREVENTED FROM SHARING IN
THE BAY AREA BUSINESS, ALL TO THE PRICE DISADVANTAGE OF THE CONSUMER
AND THE UNREASONABLE RESTRAINT OF INTERSTATE COMMERCE.  THE LEGAL
THEORY WHICH WAS FOLLOWED IN THEIR CONVICTION WAS THAT CONSPIRACIES
BETWEEN EMPLOYERS AND EMPLOYEES TO RESTRAIN INTERSTATE COMMERCE VIOLATE
THE SHERMAN ACT. 

FIVE PETITIONS FOR CERTIORARI WERE PRESENTED TO THIS COURT BY
DIFFERENT DEFENDANTS EITHER SINGLY OR JOINTLY WITH OTHERS.  IT IS
SUFFICIENT FOR THE PURPOSES OF THIS REVIEW TO SAY THAT THEY RAISED THE
QUESTION OF THE APPLICATION OF SEC. 1 OF THE SHERMAN ACT TO
CONSPIRACIES BETWEEN EMPLOYERS AND EMPLOYEES TO RESTRAIN COMMERCE AND,
EXCEPT THE PETITIONS IN THE EMPLOYER GROUP, THE APPLICATION OF SEC. 6
OF THE NORRIS-LAGUARDIA ACT IN A TRIAL OF SUCH AN INDICTMENT.  FN2  ON
ACCOUNT OF THE IMPORTANCE OF THE FEDERAL QUESTIONS RAISED AND ASSERTED
CONFLICTS IN THE CIRCUITS, THE WRITS OF CERTIORARI WERE GRANTED.  FN3 

SINCE THESE CASES WERE TAKEN THE IMPORTANT QUESTION OF THE
APPLICATION OF THE SHERMAN ACT TO A CONSPIRACY BETWEEN LABOR UNION AND
BUSINESS GROUPS HAS BEEN DECIDED BY US.  WE HELD THAT SUCH A CONSPIRACY
TO RESTRAIN TRADE VIOLATED THE SHERMAN ACT.  ALLEN BRADLEY CO. V. LOCAL
UNION NO. 3, 325 U.S. 797.  THIS HOLDING CAUSES US TO APPROVE THE
RULING OF THE TRIAL AND APPELLATE COURTS ON THE FIRST QUESTION
PRESENTED BY THE CERTIORARI BUT IT LEFT UNRESOLVED THE QUESTION AS TO
THE APPLICATION OF SEC. 6 OF THE NORRIS-LAGUARDIA ACT, THE POINT TO
WHICH THIS DECISION IS DIRECTED. 

THE INDICTMENT CHARGES A CONSPIRACY FORBIDDEN BY THE SHERMAN ACT.  ON
THAT ISSUE, THE POWER OF THE TRIAL COURT IS LIMITED BY SEC. 6 OF THE
NORRIS-LAGUARDIA ACT.  NOTE 2, SUPRA.  THE LIMITATIONS OF THAT SECTION
ARE UPON ALL COURTS OF THE UNITED STATES IN ALL MATTERS GROWING OUT OF
LABOR DISPUTES, COVERED BY THE ACT, WHICH MAY COME BEFORE THEM.  IT
PROPERLY IS CONCEDED THAT THIS AGREEMENT GREW OUT OF SUCH A LABOR
DISPUTE AND THAT ALL PARTIES DEFENDANT PARTICIPATED OR WERE INTERESTED
IN THAT DISPUTE.  SEE SEC. 13, 47 STAT. 73.  SECTION 6 OF THE NORRIS
LAGUARDIA ACT FIRST APPEARED IN A DRAFT BILL OF THE SENATE COMMITTEE ON
THE JUDICIARY AS SEC. 6 THEREOF.  AT THAT TIME ITS FORM WAS PRECISELY
THE SAME AS AT PRESENT.  THE DRAFT WAS DRAWN AS A COMPREHENSIVE
SUBSTITUTE FOR S. 1482 OF THE 70TH CONGRESS, A BILL PROVIDING ONLY FOR
A LIMITATION ON THE JURISDICTION OF EQUITY COURTS IN THE ISSUANCE OF
INJUNCTIONS.  IN THE 71ST CONGRESS, A SIMILARLY LIMITED BILL ON THE
SAME SUBJECT, S. 2497, WAS REINTRODUCED AND A LIKE COMPREHENSIVE
SUBSTITUTE PROPOSED.  NEITHER SUBSTITUTE WAS REPORTED OUT OF THE
COMMITTEE.  FN4  THESE SUBSTITUTE BILLS ARE QUITE SIMILAR IN FORM TO
THE NORRIS-LAGUARDIA ACT.  IN SUBSTANCE, AND THEREFORE IN
EFFECTIVENESS, THEY ARE THE SAME. 

IN THE NEXT, THE 72D CONGRESS, THE BILL, H.R. 5315, WHICH WAS TO
BECOME THE NORRIS-LAGUARDIA ACT, WAS INTRODUCED.  SECTION 2 SUCCINCTLY
STATES THE PUBLIC POLICY THAT IT WAS DESIGNED TO FURTHER - A DEFINITION
OF AND LIMITATION UPON THE JURISDICTION AND AUTHORITY OF COURTS OF THE
UNITED STATES IN LABOR DISPUTES.  FN5  THAT PURPOSE WAS IN ACCORD WITH
THAT BEHIND THE EARLIER DRAFTS REFERRED TO ABOVE.  FN6  AS THE NEW BILL
WAS PRACTICALLY IDENTICAL WITH THESE LONG CONSIDERED COMMITTEE
SUBSTITUTES, THE HEARINGS ON H.R. 5315 WERE SHORT.  FN7  BUT EVEN SO,
THE ATTACK CONTINUED ON SEC. 6 AS A RESTRICTION ON THE GENERAL LAW OF
AGENCY IN LABOR DISPUTES.  FN8 THE REPLY OF THE HOUSE COMMITTEE WAS
THAT IT DID "NOT AFFECT THE GENERAL LAW OF AGENCY" AND WAS NECESSARY
"UNDER THE CIRCUMSTANCES" SO THAT "THE COURTS SHOULD KNOW THAT CONGRESS
EXPECTS THEM NOT TO HOLD OFFICERS OR ASSOCIATIONS LIABLE FOR THE
UNLAWFUL ACTS OF A MEMBER WITHOUT CLEAR PROOF OF ACTUAL PARTICIPATION
IN, OR AUTHORIZATION OF, ANY UNLAWFUL ACTS BY THE OFFICER OR
ASSOCIATION."  FN9  THE SENATE COMMITTEE WAS OF THE VIEW THAT IT WAS A
"RULE OF EVIDENCE," NOT A "NEW LAW OF AGENCY." 

"THERE IS NO PROVISION MADE RELIEVING AN INDIVIDUAL FROM
RESPONSIBILITY FOR HIS ACTS, BUT PROVISION IS MADE THAT A PERSON SHALL
NOT BE HELD RESPONSIBLE FOR AN 'UNLAWFUL ACT' EXCEPT UPON 'CLEAR PROOF'
OF PARTICIPATION OR AUTHORIZATION OR RATIFICATION.  THUS A RULE OF
EVIDENCE, NOT A RULE OF SUBSTANTIVE LAW, IS ESTABLISHED."  N10 

WE NEED NOT DETERMINE WHETHER SEC. 6 SHOULD BE CALLED A RULE OF
EVIDENCE OR ONE THAT CHANGES THE SUBSTANTIVE LAW OF AGENCY.  WE HOLD
THAT ITS PURPOSE AND EFFECT WAS TO RELIEVE ORGANIZATIONS, WHETHER OF
LABOR OR CAPITAL, FN11  AND MEMBERS OF THOSE ORGANIZATIONS FROM
LIABILITY FOR DAMAGES OR IMPUTATION OF GUILT FOR LAWLESS ACTS DONE IN
LABOR DISPUTES BY SOME INDIVIDUAL OFFICERS OR MEMBERS OF THE
ORGANIZATION, WITHOUT CLEAR PROOF THAT THE ORGANIZATION OR MEMBER
CHARGED WITH RESPONSIBILITY FOR THE OFFENSE ACTUALLY PARTICIPATED, GAVE
PRIOR AUTHORIZATION, OR RATIFIED SUCH ACTS AFTER ACTUAL KNOWLEDGE OF
THEIR PERPETRATION.  FN12 

THUS SEC. 6 LIMITED RESPONSIBILITY FOR ACTS OF A CO-CONSPIRATOR - A
MATTER OF MOMENT TO THE ADVOCATES OF THE BILL.  FN13  BEFORE THE
ENACTMENT OF SEC. 6, WHEN A CONSPIRACY BETWEEN LABOR UNIONS AND THEIR
MEMBERS, PROHIBITED UNDER THE SHERMAN ACT, WAS ESTABLISHED, A WIDELY
PUBLICIZED CASE HAD HELD BOTH THE UNIONS AND THEIR MEMBERS LIABLE FOR
ALL OVERT ACTS OF THEIR CO-CONSPIRATORS.  FN14  THIS LIABILITY RESULTED
WHETHER THE MEMBERS OR THE UNIONS APPROVED OF THE ACTS OR NOT OR
WHETHER OR NOT THE ACTS WERE OFFENSES UNDER THE CRIMINAL LAW.  WHILE OF
COURSE PARTICIPANTS IN A CONSPIRACY THAT IS COVERED BY SEC. 6 ARE NOT
IMMUNIZED FROM RESPONSIBILITY FOR AUTHORIZED ACTS IN FURTHERANCE OF
SUCH A CONSPIRACY, THEY NOW ARE PROTECTED AGAINST LIABILITY FOR
UNAUTHORIZED ILLEGAL ACTS OF OTHER PARTICIPANTS IN THE CONSPIRACY. 

THE LEGISLATIVE HISTORY MAKES THE INTENDED MEANING OF THE WORD
"AUTHORIZATION," WE THINK, ALMOST EQUALLY CLEAR.  THE RULE OF LIABILITY
FOR ACTS OF AN AGENT WITHIN THE SCOPE OF HIS AUTHORITY, BASED ON THE
DANBURY HATTERS CASE, WAS URGED AS AN ARGUMENT AGAINST THE LANGUAGE OF
SEC. 6.  FN15 WHEN THE SENATE COMMITTEE ON THE JUDICIARY REPORTED THE
BILL, IT DEALT WITH THIS CONTENTION. 

"BUT THE ARGUMENT IS MADE THAT A MAN IS HELD LEGALLY RESPONSIBLE FOR
THE ACTS OF HIS AGENTS TAKEN IN DUE COURSE OF EMPLOYMENT.  THIS
ARGUMENT IS EVIDENTLY BASED UPON A DOCTRINE OF THE CIVIL LAW OF
NEGLIGENCE.  IT HAS NO APPLICATION TO THE CRIMINAL LAW.  IF A MAN IS
HELD RESPONSIBLE FOR AN UNLAWFUL ACT, HIS RESPONSIBILITY RESTS ON THE
BASIS OF ACTUAL OR IMPLIED PARTICIPATION.  HE IS RESPONSIBLE FOR
CONSPIRING TO DO AN UNLAWFUL ACT OR FOR SETTING IN MOTION FORCES
INTENDED TO RESULT, OR NECESSARILY RESULTING, IN AN UNLAWFUL ACT. 

...  IT IS HIGH TIME THAT, BY LEGISLATIVE ACTION, THE COURTS SHOULD
BE REQUIRED TO UPHOLD THE LONG ESTABLISHED LAW THAT GUILT IS PERSONAL
AND THAT MEN CAN ONLY BE HELD RESPONSIBLE FOR THE UNLAWFUL ACTS OF
ASSOCIATES BECAUSE OF PARTICIPATION IN, AUTHORIZATION OR RATIFICATION
OF SUCH ACTS.  AS A RULE OF EVIDENCE, CLEAR PROOF SHOULD BE REQUIRED,
SO THAT CRIMINAL GUILT AND CRIMINAL RESPONSIBILITY SHOULD NOT BE
IMPUTED BUT PROVEN BEYOND REASONABLE DOUBT IN ORDER TO IMPOSE
LIABILITY."  FN16 

WE HOLD, THEREFORE, THAT "AUTHORIZATION" AS USED IN SEC. 6 MEANS
SOMETHING DIFFERENT FROM CORPORATE CRIMINAL RESPONSIBILITY FOR THE ACTS
OF OFFICERS AND AGENTS IN THE COURSE OR SCOPE OF EMPLOYMENT.  FN17  WE
ARE OF THE OPINION THAT THE REQUIREMENT OF "AUTHORIZATION" RESTRICTS
THE RESPONSIBILITY OR LIABILITY IN LABOR DISPUTES OF EMPLOYER OR
EMPLOYEE ASSOCIATIONS, ORGANIZATIONS OR THEIR MEMBERS FOR UNLAWFUL ACTS
OF THE OFFICERS OR MEMBERS OF THOSE ASSOCIATIONS OR ORGANIZATIONS,
ALTHOUGH SUCH OFFICERS OR MEMBERS ARE ACTING WITHIN THE SCOPE OF THEIR
GENERAL AUTHORITY AS SUCH OFFICERS OR MEMBERS, TO THOSE ASSOCIATIONS,
ORGANIZATIONS OR THEIR OFFICERS OR MEMBERS WHO ACTUALLY PARTICIPATE IN
THE UNLAWFUL ACTS, EXCEPT UPON CLEAR PROOF THAT THE PARTICULAR ACT
CHARGED, OR ACTS GENERALLY OF THAT TYPE AND QUALITY, HAD BEEN EXPRESSLY
AUTHORIZED, OR NECESSARILY FOLLOWED FROM A GRANTED AUTHORITY, BY THE
ASSOCIATION OR NON-PARTICIPATING MEMBER SOUGHT TO BE CHARGED OR WAS
SUBSEQUENTLY RATIFIED BY SUCH ASSOCIATION, ORGANIZATION OR MEMBER AFTER
ACTUAL KNOWLEDGE OF ITS OCCURRENCE. 

IN THIS PROSECUTION THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
AND ALL THE LOCAL UNIONS WHO WERE CONVICTED REQUESTED AN INSTRUCTION OR
INSTRUCTIONS THAT EMBODIED THE ABOVE INTERPRETATION OF SEC. 6.  FN18  A
SIMILAR REQUEST WAS MADE BY THE INDIVIDUAL MEMBERS BY REQUESTED
INSTRUCTION NO. 58.  THESE REQUESTED INSTRUCTIONS WERE REFUSED AND
INSTEAD INSTRUCTIONS WERE GIVEN THAT STATED A DIFFERENT CONCEPT OF LAW
AS IS EVIDENCED BY THE EXCERPTS IN THE MARGINAL NOTE.  FN19 

SO FAR AS THE UNIONS, BOTH LOCAL AND NATIONAL, ARE CONCERNED, THE
NECESSITY UNDER OUR CONSTRUCTION FOR AN INSTRUCTION BASED ON SEC. 6 IS
APPARENT.  THE UNITED BROTHERHOOD WAS NOT A PARTY TO ANY OF THE
AGREEMENTS.  LOCAL UNIONS TOOK A MORE DEFINITIVE PART THAN THE UNITED
BROTHERHOOD.  IN SOME INSTANCES THE NAME OF A LOCAL UNION WAS SIGNED TO
THE AGREEMENT THAT CONTAINED THE RESTRICTIVE CLAUSE.  NECESSARILY ACTS
PERFORMED BY OR FOR THE UNIONS WERE DONE BY THEIR INDIVIDUAL OFFICERS,
MEMBERS OR AGENTS.  WE DO NOT ENTER INTO AN ANALYSIS OF THE EVIDENCE
THAT WAS RELIED UPON TO SHOW THE PARTICIPATION OF THE UNIONS IN THE
CONSPIRACY.  THE EVIDENCE IN ANY NEW TRIAL MAY BE QUITE DIFFERENT.  NO
MATTER HOW STRONG THE EVIDENCE MAY BE OF AN ASSOCIATION'S OR
ORGANIZATION'S PARTICIPATION THROUGH ITS AGENTS IN THE CONSPIRACY,
THERE MUST BE A CHARGE TO THE JURY SETTING OUT CORRECTLY THE LIMITED
LIABILITY UNDER SEC. 6 OF SUCH ASSOCIATION OR ORGANIZATION FOR ACTS OF
ITS AGENTS.  FN20  FOR A JUDGE MAY NOT DIRECT A VERDICT OF GUILTY NO
MATTER HOW CONCLUSIVE THE EVIDENCE.  FN21  THERE IS NO WAY OF KNOWING
HERE WHETHER THE JURY'S VERDICT WAS BASED ON FACTS WITHIN THE CONDEMNED
INSTRUCTIONS, NOTE 19 ABOVE, OR ON ACTUAL AUTHORIZATION OR RATIFICATION
OF SUCH ACTS, NOTE 18.  FN22  A FAILURE TO CHARGE CORRECTLY IS NOT
HARMLESS, SINCE THE VERDICT MIGHT HAVE RESULTED FROM THE INCORRECT
INSTRUCTION.  WE ARE OF THE OPINION, THEREFORE, THAT THE JUDGE SHOULD
HAVE INSTRUCTED THE JURY AS TO THE LIMITATIONS UPON THE ASSOCIATION'S
LIABILITY FOR THE ACTS OF ITS AGENTS UNDER SEC. 6.  THE ERROR IS
AGGRAVATED BY THE FAILURE TO GIVE THE CORRECT CHARGE UPON REQUEST. 
THE SUGGESTION IS MADE THAT THE ALERT AND POWERFUL UNIONS AND
CORPORATIONS GAIN THE GREATEST DEGREE OF IMMUNITY UNDER OUR
INTERPRETATION OF SEC. 6.  THAT IS NOT THE CASE.  SECTION 6 DRAWS NO
DISTINCTION AS TO LIABILITY FOR UNAUTHORIZED ACTS BETWEEN THE LARGE AND
THE SMALL, BETWEEN NATIONAL UNIONS AND LOCAL UNIONS, BETWEEN POWERFUL
UNIONS AND WEAK UNIONS, BETWEEN ASSOCIATIONS OR ORGANIZATIONS AND THEIR
MEMBERS.  AND WE DRAW NO SUCH DISTINCTIONS. 

THERE IS NO IMPLICATION IN WHAT WE HAVE SAID THAT AN ASSOCIATION OR
ORGANIZATION IN CIRCUMSTANCES COVERED BY SEC. 6 MUST GIVE EXPLICIT
AUTHORITY TO ITS OFFICERS OR AGENTS TO VIOLATE IN A LABOR CONTROVERSY
THE SHERMAN ACT OR ANY OTHER LAW OR TO GIVE ANTECEDENT APPROVAL TO ANY
ACT THAT ITS OFFICERS MAY DO.  CERTAINLY AN ASSOCIATION OR ORGANIZATION
CANNOT ESCAPE RESPONSIBILITY BY STANDING ORDERS DISAVOWING AUTHORITY ON
THE PART OF ITS OFFICERS TO MAKE ANY AGREEMENTS IN VIOLATION OF THE
SHERMAN ACT AND DISCLAIMING UNION RESPONSIBILITY FOR SUCH AGREEMENTS. 
FACILE ARRANGEMENTS DO NOT CREATE IMMUNITY FROM THE ACT, WHETHER THEY
ARE MADE BY EMPLOYEE OR BY EMPLOYER GROUPS.  THE CONDITIONS OF
LIABILITY UNDER SEC. 6 ARE THE SAME IN THE CASE OF EACH.  THE GRANT OF
AUTHORITY TO AN OFFICER OF A UNION TO NEGOTIATE AGREEMENTS WITH
EMPLOYERS REGARDING HOURS, WAGES, AND WORKING CONDITIONS MAY WELL BE
SUFFICIENT TO MAKE THE UNION LIABLE.  AN ILLUSTRATIVE BUT
NONRESTRICTIVE EXAMPLE MIGHT BE WHERE THERE WAS KNOWING PARTICIPATION
BY THE UNION IN THE OPERATION OF THE ILLEGAL AGREEMENT AFTER ITS
EXECUTION.  AND THE CUSTOM OR TRADITIONAL PRACTICE OF A PARTICULAR
UNION CAN ALSO BE A SOURCE OF ACTUAL AUTHORIZATION OF AN OFFICER TO ACT
FOR AND BIND THE UNION. 

OUR ONLY POINT IS THIS:  CONGRESS IN SEC. 6 HAS SPECIFIED THE
STANDARDS BY WHICH THE LIABILITY OF EMPLOYEE AND EMPLOYER GROUPS IS TO
BE DETERMINED.  NO MATTER HOW CLEAR THE EVIDENCE, THEY ARE ENTITLED TO
HAVE THE JURY INSTRUCTED IN ACCORDANCE WITH THE STANDARDS WHICH
CONGRESS HAS PRESCRIBED.  TO REPEAT, GUILT IS DETERMINED BY THE JURY,
NOT THE COURT.  THE PROBLEM IS NOT MATERIALLY DIFFERENT FROM ONE WHERE
THE EVIDENCE AGAINST AN ACCUSED CHARGED WITH A CRIME IS WELL-NIGH
CONCLUSIVE AND THE COURT FAILS TO GIVE THE REASONABLE-DOUBT
INSTRUCTION.  IT COULD NOT BE SAID THAT THE FAILURE WAS HARMLESS
ERROR.  FN23 

IT IS SUGGESTED THAT SINCE "CONSCIOUS PARTICIPATION" WAS REQUIRED FOR
CONVICTION BY THE INSTRUCTIONS GIVEN, ERROR AS TO THE INDIVIDUAL
DEFENDANTS CANNOT BE FOUND UNDER ANY THEORY OF THE RULE OF SEC. 6.  BUT
WE THINK THAT FAILURE TO INSTRUCT THE JURY ON THE IMPUTATION OF GUILT
FROM THE ACTS OF OTHERS AS LIMITED IN LABOR DISPUTES BY SEC. 6 AFFECTS
THE INDIVIDUALS AS WELL AS THE ASSOCIATIONS.  THE SECTION COVERS
ORGANIZATIONS AND THEIR MEMBERS ALIKE.  INDIVIDUALS, WITHOUT
ASSOCIATION AUTHORITY, MAY BE GUILTY OF SUCH A CONSPIRACY AS THIS UNDER
THE SHERMAN ACT, BUT UNDER SEC. 6 THEY WILL NOT BE GUILTY MERELY
BECAUSE THEY ARE MEMBERS OR OFFICERS OF A GUILTY ASSOCIATION.  NOR ARE
INDIVIDUALS GUILTY BECAUSE OF ACTS OF OTHER INDIVIDUALS IN WHICH THEY
DID NOT PARTICIPATE, OR WHICH THEY DID NOT AUTHORIZE OR RATIFY. 
ALTHOUGH AN ILLEGAL CONSPIRACY UNDER THE SHERMAN ACT WAS PROVEN AT THE
TRIAL, THE INDIVIDUALS ARE ENTITLED TO HAVE THEIR PARTICIPATION WEIGHED
BY A JURY UNDER AN INSTRUCTION EXPLAINING THE CIRCUMSTANCES UNDER WHICH
SEC. 6 PERMITS ACTS OF OTHER INDIVIDUALS OR OF ASSOCIATIONS OR OF
ORGANIZATIONS IN LABOR DISPUTES TO CREATE PERSONAL LIABILITY.  TO
INSTRUCT ONLY THAT CONSCIOUS PARTICIPATION OF THE INDIVIDUAL IS
REQUIRED LEAVES A JURY FREE TO WEIGH AN INDIVIDUAL'S GUILT IN THE LIGHT
OF UNAUTHORIZED AND UNRATIFIED ACTS OF OTHERS WITH WHOM HE IS
ASSOCIATED BUT IN WHOSE ACTS HE HAS NOT PARTICIPATED.  AS THE EVIDENCE
OF ANY INDIVIDUAL'S ACTIVITIES IN THE ALLEGED CONSPIRACY IS A MINOR
PART OF THE EVIDENCE AS TO THE ENTIRE SCHEME, THIS DELIMITATION OF HIS
RESPONSIBILITY IS IMPORTANT. 

CERTIORARI WAS GRANTED TO TWO EMPLOYER GROUPS, NOS. 8 AND 10, EACH
CONTAINING AN INCORPORATED TRADE ASSOCIATION AND ITS OFFICERS AND
MEMBERS, BOTH INDIVIDUAL AND CORPORATE.  BOTH GROUPS COMBATTED THE
INDICTMENT BY DEMURRER ON THE GROUND THAT, AS THE RESTRICTIVE AGREEMENT
WAS DIRECTED AT THE MAINTENANCE OF PROPER WORKING CONDITIONS, IT DID
NOT STATE A CRIME UNDER THE SHERMAN ACT.  THE DEMURRER WAS OVERRULED BY
THE TRIAL COURT.  OUR DECISION IN ALLEN BRADLEY COMPANY REQUIRES US TO
UPHOLD THIS CONCLUSION.  THEREAFTER PLEAS OF NOLO CONTENDERE WERE
ENTERED BY EACH DEFENDANT IN THE EMPLOYER PETITIONER GROUPS. 

EACH OF THE EMPLOYER PETITIONERS, IF THEY HAD STOOD TRIAL, AS WE HAVE
INDICATED HEREINBEFORE, WOULD HAVE BEEN ENTITLED TO THE SAME
INSTRUCTION UNDER SEC. 6 AS WE HAVE HELD THE UNION GROUP SHOULD HAVE
RECEIVED.  AND THOUGH THE FAILURE SO TO CHARGE WAS NOT EXCEPTED TO, WE
WOULD NOT BE PRECLUDED FROM ENTERTAINING THE OBJECTION.  FN24  THE
ERRONEOUS CHARGE WAS ON A VITAL PHASE OF THE CASE AND AFFECTED THE
SUBSTANTIAL RIGHTS OF THE DEFENDANTS.  WE HAVE THE POWER TO NOTICE A
"PLAIN ERROR" THOUGH IT IS NOT ASSIGNED OR SPECIFIED.  FN25  IN VIEW OF
THEIR PLEA OF NOLO CONTENDERE, DOES JUSTICE REQUIRE THAT THESE EMPLOYER
GROUPS SHOULD NOW BE GIVEN AN OPPORTUNITY TO STAND TRIAL IN THE
SITUATION CREATED BY OUR SUBSEQUENT RULINGS IN THE ALLEN BRADLEY CASE
AND IN THIS CASE?  WE THINK THAT IT DOES. 

THIS PRESENT DECISION FURNISHES A GUIDE FOR THE APPLICATION OF SEC. 6
TO LIABILITY FOR ACTS OF AGENTS IN LABOR DISPUTES.  ORDINARILY A PLEA
OF NOLO CONTENDERE LEAVES OPEN FOR REVIEW ONLY THE SUFFICIENCY OF AN
INDICTMENT.  FN26  HOWEVER, IN VIEW OF THE THEN EXISTING UNCERTAINTY AS
TO LIABILITY FOR CONTRACTS BETWEEN GROUPS OF EMPLOYERS AND GROUPS OF
EMPLOYEES THAT RESTRAINED INTERSTATE COMMERCE AND THE APPLICATION OF
SEC. 6 OF THE NORRIS-LAGUARDIA ACT, WE CONCLUDE THAT IN THIS
EXCEPTIONAL SITUATION THE EMPLOYER GROUPS, ALSO, SHOULD HAVE AN
OPPORTUNITY TO MAKE DEFENSE TO THE INDICTMENT.  FN27 

THE JUDGMENTS IN EACH CASE ARE REVERSED AND THE CAUSES REMANDED TO
THE DISTRICT COURT. 

FN1  15 U.S.C. SEC. 1: 

"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 HEREBY DECLARED TO BE ILLEGAL:...  EVERY
PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN ANY COMBINATION OR
CONSPIRACY DECLARED BY SECTIONS 1-7 OF THIS TITLE TO BE ILLEGAL SHALL
BE DEEMED GUILTY OF A MISDEMEANOR, AND, ON CONVICTION THEREOF, SHALL BE
PUNISHED BY FINE NOT EXCEEDING $5,000, OR BY IMPRISONMENT NOT EXCEEDING
ONE YEAR, OR BY BOTH SAID PUNISHMENTS, IN THE DISCRETION OF THE
COURT." 

FN2  47 STAT. 70, 71: 

"SEC. 6.  NO OFFICER OR MEMBER OF ANY ASSOCIATION OR ORGANIZATION,
AND NO ASSOCIATION OR ORGANIZATION PARTICIPATING OR INTERESTED IN A
LABOR DISPUTE, SHALL BE HELD RESPONSIBLE OR LIABLE IN ANY COURT OF THE
UNITED STATES FOR THE UNLAWFUL ACTS OF INDIVIDUAL OFFICERS, MEMBERS, OR
AGENTS, EXCEPT UPON CLEAR PROOF OF ACTUAL PARTICIPATION IN, OR ACTUAL
AUTHORIZATION OF, SUCH ACTS, OR OF RATIFICATION OF SUCH ACTS AFTER
ACTUAL KNOWLEDGE THEREOF." 

FN3  323 U.S. 706-7.  COMPARE ALLEN BRADLEY CO. V. LOCAL UNION NO. 3,
145 F.2D 215, AND UNITED STATES V. INTERNATIONAL FUR WORKERS UNION, 100
F.2D 541, 547, WITH THE OPINION OF THE CIRCUIT COURT OF APPEALS IN THIS
CASE, 144 F.2D 546. 

THESE CASES WERE ARGUED IN THE SUPREME COURT OF THE UNITED STATES
FIRST ON MARCH 8, 1945.  ON JUNE 18, 1945, THEY WERE RESTORED TO THE
DOCKET AND ASSIGNED FOR REARGUMENT, COUNSEL BEING REQUESTED TO DISCUSS
(1) THE SCOPE OF SEC. 6 OF THE NORRIS-LAGUARDIA ACT IN RELATION TO
PROSECUTIONS UNDER THE ANTITRUST ACT; (2) THE SCOPE OF SEC. 6 IN
RELATIONSHIP TO SEC. 13(B); (3) THE SCOPE OF THE WORDS "ASSOCIATION OR
ORGANIZATION" APPEARING IN SEC. 6, IN THAT SECTION'S RELATIONSHIP TO
SEC. 13(B); AND (4) CONSIDERATION OF THE COURT'S ORAL CHARGE AND
WRITTEN CHARGES REQUESTED AND REFUSED INVOLVING SEC. 6, IN THE LIGHT OF
OBJECTIONS AND EXCEPTIONS BY EACH AND ALL OF THE DEFENDANTS AND THE
STATE OF THE EVIDENCE ON THAT ISSUE AS TO EACH OF THEM.  JOURNAL, SUP.
CT., U.S., OCTOBER TERM 1944, PP. 284-5.  THE CASES WERE REARGUED ON
APRIL 29-30, 1946, AND AGAIN RESTORED TO THE DOCKET ON JUNE 10, 1946,
FOR A THIRD ARGUMENT. 

FN4  S. REP. NO. 1060, 71ST CONG., 2D SESS., P. 4. 

IN THE HEARINGS ON THE PROPOSED SUBSTITUTE, THE LANGUAGE NOW
INCORPORATED INTO SEC. 6 OF THE NORRIS-LAGUARDIA ACT WAS CRITICIZED AS
CHANGING THE RULES OF AGENCY, SO AS TO RELIEVE ORGANIZATIONS OF
RESPONSIBILITY FOR ACTS OF THEIR AGENTS IN LABOR DISPUTES.  IT WAS
DEFENDED AS INTENDED TO APPLY THE LAW OF AGENCY TO LABOR UNIONS. 
HEARINGS, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, U.S. SENATE,
70TH CONG., 2D SESS., ON S. 1482, PART 5, P. 759, ET SEQ. 

FN5  47 STAT. 70. 

FN6  S. REP. NO. 163, 72D CONG., 1ST SESS.; H. REP. NO. 669, 72D
CONG., 1ST SESS.; S. REP. NO. 1060, 71ST CONG., 2D SESS.; HEARINGS,
SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, U.S. SENATE, 70TH
CONG., 1ST SESS., ON S. 1482; HEARING, SUBCOMMITTEE OF THE COMMITTEE ON
THE JUDICIARY, U.S. SENATE, 71ST CONG., 2D SESS., ON S. 2497. 

FN7  HEARING, COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES,
72D CONG., 1ST SESS., ON H.R. 5315. 

FN8  ID., P. 16: 

"BUT SECTION 6 EFFECTS A REVOLUTION IN THE SUBSTANTIVE LAW OF
AGENCY.  BY THAT SECTION NO OFFICER OR MEMBER OF ANY ORGANIZATION,
PARTICIPATING IN A LABOR DISPUTE, AND THIS APPLIES EQUALLY TO
EMPLOYERS, IS TO BE HELD LIABLE IN ANY COURT OF THE UNITED STATES FOR
THE UNLAWFUL ACT OF AGENTS ACTING IN SUCH DISPUTE, UNLESS THERE BE
CLEAR PROOF OF ACTUAL PARTICIPATION, AUTHORIZATION, OR RATIFICATION OF
THE AGENTS' ACTS AFTER ACTUAL KNOWLEDGE.  THE GENERAL LAW OF AGENCY IS
THUS REPEALED OR RESTRICTED TO A LABOR DISPUTE, AND IT APPLIES EQUALLY
TO EMPLOYERS AND EMPLOYEES.  IT APPLIES TO MEN WHO BY COLLUSION ENTER
INTO AGREEMENTS WHICH MAY HARMFULLY AFFECT THE PUBLIC INTERESTS, AND
WHICH IN SOME INSTANCES MIGHT BE VIOLATIONS OF THE ANTITRUST ACT,
ALTHOUGH THEY MAY BE THE RESULT, OR GROW OUT OF, OR INVOLVE TERMS OF A
LABOR DISPUTE." 

SEE ALSO PP. 33 AND 39. 

FN9  H. REP. NO. 669, 72D CONG., 1ST SESS., P. 9. 

FN10  S. REP. NO. 163, 72D CONG., 1ST SESS., P. 19. 

FN11  "SECTION 6 OF THE BILL RELATES TO DAMAGES FOR UNLAWFUL ACTS
ARISING OUT OF LABOR DISPUTES.  IT IS PROVIDED THAT OFFICERS AND
MEMBERS OF ANY LABOR ORGANIZATION, AND OFFICERS AND MEMBERS OF ANY
EMPLOYERS' ORGANIZATION, SHALL NOT BE HELD LIABLE FOR DAMAGES UNLESS IT
IS PROVEN THAT THE DEFENDANT EITHER PARTICIPATED IN OR AUTHORIZED SUCH
UNLAWFUL ACTS, OR RATIFIED SUCH UNLAWFUL ACTS AFTER ACTUAL KNOWLEDGE
THEREOF."  S. REP. NO. 163, SUPRA, P. 19; 75 CONG. REC. 4507; 47 STAT.
70, 73: 

"SEC. 13.... 

"(B)  A PERSON OR ASSOCIATION SHALL BE HELD TO BE A PERSON
PARTICIPATING OR INTERESTED IN A LABOR DISPUTE IF RELIEF IS SOUGHT
AGAINST HIM OR IT, AND IF HE OR IT IS ENGAGED IN THE SAME INDUSTRY,
TRADE, CRAFT, OR OCCUPATION IN WHICH SUCH DISPUTE OCCURS, OR HAS A
DIRECT OR INDIRECT INTEREST THEREIN, OR IS A MEMBER, OFFICER, OR AGENT
OF ANY ASSOCIATION COMPOSED IN WHOLE OR IN PART OF EMPLOYERS OR
EMPLOYEES ENGAGED IN SUCH INDUSTRY, TRADE, CRAFT, OR OCCUPATION." 

FN12  SEE THE FULL STATEMENT IN S. REP. NO. 163, SUPRA, PP. 19-21. 
NOTHING HAS BEEN FOUND TO GIVE DEFINITION TO THE WORD "ORGANIZATION" AS
USED IN THE ACT.  WE SEE NO REASON TO RESTRICT ITS MEANING TO
UNINCORPORATED ENTITIES.  APPARENTLY IT WAS EMPLOYED BY THE DRAFTSMEN
TO COVER, GENERICALLY, ALL ORGANIZATIONS THAT TAKE PART IN LABOR
DISPUTES.  SEE NOTE 11, SUPRA.  WE SO APPLY THE WORD.  THE CORPORATE
FORM, AS IS TRUE IN THIS CASE, IS FREQUENTLY EMPLOYED FOR TRADE
GROUPS. 

FN13  THE DANBURY HATTERS CASE - LOEWE V. LAWLOR, 208 U.S. 274, AND
LAWLOR V. LOEWE, 235 U.S. 522 - INVOLVING DAMAGES AGAINST UNION MEMBERS
FOR THEIR UNION'S ACTS IN AN UNLAWFUL CONSPIRACY, WAS IN THEIR MINDS. 
HEARINGS ON S. 1482, SUPRA, P. 760, ET SEQ. COMPARE THE PARTNERSHIP IN
CRIME THEORY.  UNITED STATES V. KISSEL, 218 U.S. 601, 608; UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 253. 

FN14  UNITED STATES V. RAILWAY EMPLOYEES' DEPT. A.F.L., 283 F. 479,
492. 

FN15  HEARINGS ON S. 1482, SUPRA, P. 760: 

"WHEN THAT CAME BEFORE THE SUPREME COURT OF THE UNITED STATES JUSTICE
HOLMES - I DO NOT REMEMBER THE EXACT LANGUAGE, BUT HE HAD IN MIND THAT
IT MIGHT NOT BE NECESSARY TO SHOW THAT THEY KNEW OR OUGHT TO HAVE KNOWN
OR THAT THEY OUGHT TO HAVE BEEN WARRANTED IN THEIR BELIEF - THAT UNDER
THE RULE OF AGENCY AS PREVAILING IN ALL OTHER ACTIVITIES, INCLUDING
BANKERS' ASSOCIATIONS, TO WHICH YOU REFER, AND ALL OTHER ASSOCIATIONS,
IT IS THE COMMON ACCEPTED PROPOSITION, AS FUNDAMENTAL AS ANY I KNOW IN
ANGLO-SAXON JURISPRUDENCE, THAT A PRINCIPAL MAY BE LIABLE FOR THE ACTS
OF HIS AGENT, EVEN THOUGH HE NEVER KNEW OR HEARD OF THEM AND ACTUALLY
FORBADE THEM, PROVIDED HE WAS ACTING WITHIN THE GENERAL SCOPE OF HIS
AUTHORITY, IN FURTHERANCE OF THE PURPOSE OF THE ASSOCIATION.  THAT IS
THE LAW LAID DOWN BY THE SUPREME COURT OF THE UNITED STATES, AND THAT
IS THE LAW THAT I AM AFRAID IS CURTAILED BY THIS PROVISION IN THIS

EXCERPTS FROM LAWLOR V. LOEWE, 235 U.S. AT 534-35, WILL EXPLAIN THE
REFERENCE:  "WE AGREE WITH THE CIRCUIT COURT OF APPEALS THAT A
COMBINATION AND CONSPIRACY FORBIDDEN BY THE STATUTE WERE PROVED, AND
THAT THE QUESTION IS NARROWED TO THE RESPONSIBILITY OF THE DEFENDANTS
FOR WHAT WAS DONE BY THE SANCTION AND PROCUREMENT OF THE SOCIETIES
ABOVE NAMED. 

"THE COURT IN SUBSTANCE INSTRUCTED THE JURY THAT IF THESE MEMBERS
PAID THEIR DUES AND CONTINUED TO DELEGATE AUTHORITY TO THEIR OFFICERS
UNLAWFULLY TO INTERFERE WITH THE PLAINTIFFS' INTERSTATE COMMERCE IN
SUCH CIRCUMSTANCES THAT THEY KNEW OR OUGHT TO HAVE KNOWN, AND SUCH
OFFICERS WERE WARRANTED IN THE BELIEF THAT THEY WERE ACTING IN THE
MATTERS WITHIN THEIR DELEGATED AUTHORITY, THEN SUCH MEMBERS WERE
JOINTLY LIABLE, AND NO OTHERS.  IT SEEMS TO US THAT THIS INSTRUCTION
SUFFICIENTLY GUARDED THE DEFENDANTS' RIGHTS, AND THAT THE DEFENDANTS
GOT ALL THAT THEY WERE ENTITLED TO ASK IN NOT BEING HELD CHARGEABLE
WITH KNOWLEDGE AS MATTER OF LAW....  IF THE WORDS OF THE DOCUMENTS ON
THEIR FACE AND WITHOUT EXPLANATION DID NOT AUTHORIZE WHAT WAS DONE, THE
EVIDENCE OF WHAT WAS DONE PUBLICLY AND HABITUALLY SHOWED THEIR MEANING
AND HOW THEY WERE INTERPRETED.  THE JURY COULD NOT BUT FIND THAT BY THE
USAGE OF THE UNIONS THE ACTS COMPLAINED OF WERE AUTHORIZED, AND
AUTHORIZED WITHOUT REGARD TO THEIR INTERFERENCE WITH COMMERCE AMONG THE
STATES."    FN16  S. REP. NO. 163, SUPRA, P. 20. 

FN17  SEE NEW YORK CENTRAL R. CO. V. UNITED STATES, 212 U.S. 481,
494. 

THESE CASES NOW BEING PASSED UPON HAVE NOT INVOLVED THE LIABILITY OF
AN EMPLOYER, WHETHER A MEMBER OR NOT OF AN ASSOCIATION OR ORGANIZATION
OF EMPLOYERS, FOR THE ACTS, IN A LABOR DISPUTE, OF HIS OR ITS OWN
OFFICERS.  WE EXPRESS NO OPINION UPON THAT. 

FN18  A FAIR EXAMPLE, REQUESTED INSTRUCTION NO. 56, IS AS FOLLOWS: 

"YOU ARE INSTRUCTED THAT NO LABOR UNION OR ORGANIZATION CAN BE FOUND
GUILTY IN THIS CASE FOR AN UNLAWFUL ACT OR ACTS, IF ANY, OF INDIVIDUAL
OFFICERS, MEMBERS OR AGENTS, UNLESS YOU FIND UPON CLEAR PROOF FROM THE
EVIDENCE THAT SUCH LABOR ORGANIZATION ACTUALLY PARTICIPATED IN, OR
ACTUALLY AUTHORIZED SUCH UNLAWFUL ACT, IF ANY, OR RATIFIED SUCH AN ACT,
IF ANY, AFTER ACTUAL KNOWLEDGE THEREOF." 

FN19 "THE ACT OF AN AGENT DONE FOR OR ON BEHALF OF A CORPORATION AND
WITHIN THE SCOPE OF HIS AUTHORITY, OR AN ACT WHICH AN AGENT HAS ASSUMED
TO DO FOR A CORPORATION WHILE PERFORMING DUTIES ACTUALLY DELEGATED TO
HIM, IS DEEMED TO BE THE ACT OF THE CORPORATION. 

"IF YOU FIND THAT THERE DID EXIST A COMBINATION AND CONSPIRACY SUCH
AS IS CHARGED IN THE INDICTMENT, AND THAT ANY DEFENDANT CORPORATION
PARTICIPATED THEREIN, THEN I INSTRUCT YOU THAT SUCH ACT OF
PARTICIPATION IS DEEMED TO BE ALSO THE ACT OF THE INDIVIDUAL DIRECTOR,
OFFICER OR AGENT OF SUCH DEFENDANT CORPORATION WHO AUTHORIZED, ORDERED
OR DID SUCH ACT IN WHOLE OR IN PART. 

"LIKEWISE, THE LIST OF DEFENDANTS INCLUDES A NUMBER OF LABOR UNION
ORGANIZATIONS AND SEVERAL MEMBERS THEREOF.  IT HAS BEEN STIPULATED IN
THIS CASE THAT THESE LABOR UNIONS ARE ASSOCIATIONS.  LIKE CORPORATIONS,
ASSOCIATIONS ARE SEPARATE ENTITIES WITHIN THE MEANING OF THE SHERMAN
ACT, AND MAY BE FOUND GUILTY OF VIOLATIONS OF THAT ACT, SEPARATELY AND
APART FROM THE GUILT OR INNOCENCE OF THEIR MEMBERS. 

"YOU ARE TO DETERMINE THE GUILT OR INNOCENCE OF THE LABOR UNIONS
WHICH ARE DEFENDANTS IN THIS CASE IN THE SAME MANNER AS YOU DETERMINE
THAT OF THE CORPORATIONS, THAT IS, BY AN EXAMINATION OF THE ACTS OF
THEIR AGENTS. 

     .         .         .         .         . 

"IN THIS CASE, SEVERAL INDIVIDUALS ARE NAMED AS DEFENDANTS, TOGETHER
WITH A NUMBER OF CORPORATIONS.  WHILE THESE DEFENDANTS HAVE BEEN
JOINTLY INDICTED AND CHARGED WITH THE OFFENSES CONTAINED IN THE
INDICTMENT, EACH DEFENDANT IS ENTITLED TO AN INDEPENDENT CONSIDERATION
BY YOU OF THE EVIDENCE AS IT RELATES TO HIS CONSCIOUS PARTICIPATION IN
THE ALLEGED UNLAWFUL ACTS, AND IT IS YOUR DUTY TO DETERMINE THE GUILT
OR INNOCENCE OF EACH INDIVIDUAL SEPARATELY." 

FN20  SEE BATTLE V. UNITED STATES, 209 U.S. 36, 38. 

FN21  SPARF AND HANSEN V. UNITED STATES, 156 U.S. 51, 105, DISSENT
173.  COMPARE CAPITAL TRACTION COMPANY V. HOF, 174 U.S. 1, 13. 

FN22  BIRD V. UNITED STATES, 180 U.S. 356, 361:  "THE CHIEF OBJECT
CONTEMPLATED IN THE CHARGE OF THE JUDGE IS TO EXPLAIN THE LAW OF THE
CASE, TO POINT OUT THE ESSENTIALS TO BE PROVED ON THE ONE SIDE AND THE
OTHER, AND TO BRING INTO VIEW THE RELATIONS OF THE PARTICULAR EVIDENCE
ADDUCED TO THE PARTICULAR ISSUES INVOLVED."  SEE PIERCE V. UNITED
STATES, 314 U.S. 306. 

FN23  WEILER V. UNITED STATES, 323 U.S. 606; BRUNO V. UNITED STATES,
308 U.S. 287. 

FN24  WIBORG V. UNITED STATES, 163 U.S. 632, 658; BRASFIELD V. UNITED
STATES, 272 U.S. 448, 450; SEE ALSO UNITED STATES V. ATKINSON, 297 U.S.
157, 160.  AND SEE RULES OF THE SUPREME COURT, RULE 27. 

FN25  WEEMS V. UNITED STATES, 217 U.S. 349, 362; MAHLER V. EBY, 264
U.S. 32, 45; SIBBACH V. WILSON & CO., 312 U.S. 1, 16; SEE ALSO KESSLER
V. STRECKER, 307 U.S. 22, 34.  AND SEE RULES OF CRIMINAL PROCEDURE,
RULE 52(B). 

FN26  NOLO CONTENDERE "IS AN ADMISSION OF GUILT FOR THE PURPOSES OF
THE CASE."  HUDSON V. UNITED STATES, 272 U.S. 451, 455; UNITED STATES
V. NORRIS, 281 U.S. 619, 622.  AND LIKE PLEAS OF GUILTY MAY BE REVIEWED
TO DETERMINE WHETHER A CRIME IS STATED BY THE INDICTMENT.  HOCKING
VALLEY R. CO. V. UNITED STATES, 210 F. 735, 738; TUCKER V. UNITED
STATES, 196 F. 260, 262. 

FN27  SEE HUSTY V. UNITED STATES, 282 U.S. 694, 703; ASHCRAFT V.
TENNESSEE, 322 U.S. 143, 155-56; R.F.C. V. PRUDENCE GROUP, 311 U.S.
579, 582; WATTS, WATTS & CO. V. UNIONE AUSTRIACA, 248 U.S. 9, 21;
MONTGOMERY WARD & CO. V. DUNCAN, 311 U.S. 243, 254. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
BURTON CONCUR IN RESULT, DISSENTING. 

THE ISSUE IN THIS CASE IS CLEAR AND SIMPLE.  IT IS THIS.  WHEN
OFFICERS MAKE AN ARRANGEMENT ON BEHALF OF THEIR ORGANIZATION, WHETHER A
CORPORATION OR A UNION, WHILE ACTING IN THE REGULAR COURSE OF BUSINESS
AND WITHIN THEIR GENERAL AUTHORITY AS SUCH OFFICERS, IS THE
ORGANIZATION LIABLE FOR WHAT THESE OFFICERS DID IF THE COURT SHOULD
SUBSEQUENTLY FIND THAT SUCH AN ARRANGEMENT IS PROHIBITED BY THE SHERMAN
LAW?  THE ISSUE IS CLEAR AND IT IS SUSCEPTIBLE OF A CLEAR ANSWER. 
NEITHER THE ISSUE NOR THE ANSWER SHOULD BE OBSCURED.  EITHER THE
ORGANIZATION IS SUBJECT TO THE LIABILITY THAT THE LAW IN OTHER RESPECTS
IMPOSES UPON ORGANIZATIONS FOR THE ACTS OF THEIR AGENTS, OR THE NORRIS
LAGUARDIA ACT FREED UNIONS AND CORPORATIONS FROM SUCH LIABILITY.  THE
LOWER COURTS MUST APPLY THE LAW AS LAID DOWN BY THIS COURT AND WE OWE
THEM CLARITY OF PRONOUNCEMENT.  THEY CANNOT VERY WELL GUIDE JURIES, OR
EVEN THEMSELVES IN EQUITY SUITS, IF TOLD THAT THE PRINCIPLES OF THE LAW
OF AGENCY DO NOT APPLY TO UNIONS AND CORPORATIONS UNDER THE SHERMAN
LAW, BUT THAT PERHAPS THEY "CAN" APPLY.  WHAT THE COURT MEANS TO DECIDE
OUGHT TO BE BROUGHT OUT OF THE TWILIGHT OF AMBIGUITY.  IT DOES NOT
ADVANCE THE ADMINISTRATION OF JUSTICE TO IMPART NEW DOUBTS TO AN OLD
STATUTE.  AND THE SHERMAN LAW IS NOT MERELY OLD.  IT EMBODIES, AS THIS
COURT HAS OFTEN INDICATED, A VITAL POLICY. 

BY EXPLICIT LANGUAGE CONGRESS FORBADE "CORPORATIONS AND ASSOCIATIONS"
NO LESS THAN INDIVIDUALS TO ENGAGE IN COMBINATIONS AND CONSPIRACIES IN
RESTRAINT OF INTERSTATE TRADE.  SECTION 8 OF THE SHERMAN LAW.  AND IT
HAS LONG BEEN SETTLED THAT TRADE UNIONS ARE "ASSOCIATIONS" UNDER THE
SHERMAN LAW.  UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344. 
BEFORE THE CORONADO DECISION AND SINCE, REPEATED EFFORTS WERE MADE TO
HAVE CONGRESS TAKE TRADE UNIONS FROM UNDER THE SHERMAN LAW.  REGARDLESS
OF THE POLITICAL COMPLEXION OF CONGRESSES, THESE EFFORTS HAVE
CONSISTENTLY FAILED.  EQUALLY FUTILE HAVE BEEN EFFORTS TO HAVE THIS
COURT READ THE LIABILITY OF TRADE UNIONS OUT OF THE SHERMAN LAW BY
JUDICIAL CONSTRUCTION.  THIS COURT HAS UNDEVIATINGLY HELD THAT TRADE
UNIONS ARE WITHIN "THE GENERAL INTERDICT OF THE SHERMAN LAW," ALTHOUGH
LATER ENACTMENTS HAVE WITHDRAWN "SPECIFICALLY ENUMERATED PRACTICES OF
LABOR UNIONS" FROM THE SCOPE OF THAT LAW.  SEE SEC. 20 OF THE CLAYTON
ACT, 38 STAT. 730, 738, 29 U.S.C. SEC. 52; UNITED STATES V. HUTCHESON,
312 U.S. 219, 230, AND APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 487
88.  IN THE LIGHT OF THIS HISTORY IT WOULD BE STRANGE INDEED TO FIND
THAT CONGRESS, BY HITHERTO UNSUSPECTED INDIRECTION, HAD, FROM THE POINT
OF VIEW OF EFFECTIVENESS, STERILIZED THE SHERMAN LAW AS TO TRADE UNIONS
AND PARTICULARLY AS TO THOSE WHICH ALONE COULD TO ANY SERIOUS EXTENT
UNREASONABLY RESTRAIN COMMERCE.  IT IS A CONCLUSION WHICH CAN BE
REACHED ONLY BY DISREGARDING THE CIRCUMSTANCES TO WHICH SEC. 6 OF THE
NORRIS-LAGUARDIA ACT WAS ADDRESSED, AND BY WRENCHING IT FROM THE
CONTEXT OF HISTORY IN WHICH IT MUST BE READ.  FN1 

THE CONSTRUCTION GIVEN BY THE COURT TO SEC. 6 IS BASED ON
CONSIDERATIONS WHICH MOVE IN A WORLD OF UNREALITY.  THE ARGUMENT IS
QUITE UNMINDFUL OF THE WAY IN WHICH TRADE UNIONS FUNCTION - THEIR
ORGANIZATION, THE AUTHORITY OF THEIR INTERNATIONAL OFFICERS, THE
INEVITABLE INFLUENCE OF THE INTERNATIONAL OFFICE UPON THE AFFILIATED
LOCALS.  IN SHORT, SUCH A CONSTRUCTION IS UNMINDFUL OF THE ANATOMY AND
PHYSIOLOGY OF TRADE UNION LIFE.  IT IS ESPECIALLY THE POWERFUL
INTERNATIONAL UNIONS WHO ARE IN STRATEGIC POSITIONS TO IMPOSE
UNREASONABLE RESTRAINTS ON COMMERCE, AND IT IS THESE THAT ARE
ESPECIALLY RENDERED IMMUNE BY THE CONSTRUCTION THE COURT GIVES TO SEC.
6.  IT IS SUCH UNIONS THAT CAN MOST READILY BE INSULATED FROM
RESPONSIBILITY FOR THE ACTS OF THEIR LEADING OFFICERS, ALTHOUGH SUCH
ACTION BE TAKEN IN FURTHERANCE OF THE VITAL CONCERNS OF THE UNION AND
IN EVERY OTHER ASPECT OF LEGAL RESPONSIBILITY BE DEEMED WITHIN THE
DIRECT AUTHORITY OF THESE OFFICERS AND BINDING ON THE UNION. 

IT TOOK SOME TIME FOR THE LAW TO CATCH UP WITH REALITY AND TO HOLD
THAT WHEN MEN AGGREGATED TO FORM AN ENTITY, THE ENTITY AS SUCH ACQUIRES
POWER AND MAY THEREFORE BE HELD TO RESPONSIBILITY IN EXERTING ITS
POWER.  BUT IT CAN ACT ONLY THROUGH INDIVIDUALS.  ITS POWER IS EXERTED,
AND ITS RESPONSIBILITY ACCRUES, THROUGH THE CONDUCT OF INDIVIDUAL MEN
ENTRUSTED WITH THE POWER OF THE ENTITY TO ACHIEVE ITS PURPOSES.  THIS
CONCLUSION, SUPPORTED ALIKE BY MORALITY AND BY REASON, THE EARLY LAW
ESCAPED THROUGH EMPTY SUBTLETIES THAT SEEM FANCIFUL TO THE MODERN
READER.  ARGUMENTS NOT UNLIKE THEM UNDERLIE A READING OF SEC. 6 WHEREBY
THE SHERMAN LAW WILL BE STERILIZED, CERTAINLY SO FAR AS NATIONAL LABOR
UNIONS ARE CONCERNED.  THE COURT'S OPINION, TO BE SURE, DOES NOT SAY IN
WORDS THAT A NATIONAL UNION IS NOT LIABLE UNDER THE SHERMAN LAW FOR
ACTS BY ITS CHIEF OFFICERS UNDERTAKEN IN THE COURSE OF DUTY AND FOR THE
FURTHERANCE OF THE UNION'S PURPOSES.  BUT THE CONDITIONS FORMULATED BY
THE COURT, WHICH MUST NOW BE MET BEFORE A UNION MAY BE HELD TO
LIABILITY, ARE PRACTICALLY UNREALIZABLE, WHETHER IN THE CASE OF A BIG
OR A SMALL UNION, A LOCAL OR AN INTERNATIONAL.  ESCAPE FROM
RESPONSIBILITY CAN BE EASILY CONTRIVED.  IT WILL BE DIFFICULT TO CHARGE
A UNION WITH CULPABILITY UNLESS A CONVENTION OF ITS MEMBERSHIP, HELD
PERHAPS EVERY TWO YEARS OR EVEN FOUR, SHOULD KNOWINGLY AUTHORIZE OR
APPROVE A VIOLATION OF THE SHERMAN LAW, OR GIVE CARTE BLANCHE TO THE
OFFICERS OF THE UNION BY APPROVING IN ADVANCE WHATEVER THEY MAY DO, NO
MATTER WHAT THE LEGAL SIGNIFICANCE.  FOR INSTANCE, IF THE PRESIDENT OF
AN INTERNATIONAL UNION SHOULD NEGOTIATE AN AGREEMENT WITH EMPLOYERS
REGARDING HOURS AND WAGES AND WORKING CONDITIONS, HIS UNION WILL NOT BE
RESPONSIBLE FOR THE AGREEMENT, UNDER THE RULE NOW LAID DOWN BY THE
COURT, IF IT SHOULD TURN OUT TO RUN COUNTER TO THE SHERMAN LAW,
ALTHOUGH MAKING AGREEMENTS TO PROMOTE THE ECONOMIC BETTERMENT OF ITS
MEMBERSHIP IS THE AIM OF THE UNION AND THE JOB OF ITS PRESIDENT. 

THE CASE BEFORE US ILLUSTRATES HOW AN ASSOCIATION LIKE THE
BROTHERHOOD PURSUES ITS OBJECTIVES.  THE LOCALS TOOK NO ACTION UNTIL
THE GENERAL OFFICE OF THE BROTHERHOOD OFFERED ITS APPROVAL; THE
PRESIDENT OF THE BROTHERHOOD HIMSELF TOOK AN ACTIVE PART IN THE
CONTRACT NEGOTIATIONS; A REPRESENTATIVE OF THE BROTHERHOOD WAS PRESENT
AT THE TIME THAT THE CONTRACTS WERE MADE; NO UNION AGREEMENT WAS
FORTHCOMING UNTIL THE GENERAL OFFICE APPROVED THE CONTRACTS IN THE
ROUTINE WAY FOR SUCH APPROVAL - COLLECTIVE AGREEMENTS ARE NOT
ORDINARILY SUBJECT TO APPROVAL AT THE QUADRENNIAL CONVENTION OF THE
BROTHERHOOD; A CIRCULAR ISSUED BY THE GENERAL OFFICE REQUESTED
ADHERENCE TO THE CONTRACTS BY THE MEMBERS OF THE LOCAL.  SURELY HERE
WAS ACTIVE "PARTICIPATION" BY THE BROTHERHOOD IN WHAT HAS BEEN FOUND TO
BE AN OUTLAWED COMBINATION, IN THE NORMAL WAY IN WHICH SUCH A UNION
EXERTS ITS AUTHORITY AND "PARTICIPATES" IN AGREEMENTS.  ON SUCH
EVIDENCE DID THE JURY FIND THE BROTHERHOOD GUILTY. 

THE COURT FINDS THAT THERE WAS ERROR IN NOT GIVING A REQUESTED CHARGE
WHICH WAS IN THE LANGUAGE OF THE STATUTE.  A TRIAL COURT DOES NOT
DISCHARGE ITS DUTY MERELY BY QUOTING A STATUTE RELEVANT TO THE CONDUCT
OF THE TRIAL.  THE ISSUE BEFORE AN APPELLATE COURT IS NOT WHETHER THE
TRIAL JUDGE MIGHT HAVE GIVEN A REQUEST OF ABSTRACT CORRECTNESS, OR EVEN
CHARGED DIFFERENTLY, BUT WHETHER THE JUDGE'S INSTRUCTIONS WERE ACCURATE
AND AMPLE.  IT MIGHT HAVE BEEN WISE FOR THE JUDGE TO EMPHASIZE THE
COUNSEL OF CARE EMBODIED IN SEC. 6.  BUT THE FAILURE TO DO SO OR TO USE
THE STATUTORY FORMULA IS NOT THE COURT'S BASIS FOR UPSETTING THE
CONVICTIONS.  THE COURT UPSETS THE CONVICTIONS BECAUSE IT DEEMS
ERRONEOUS THE VIEW WHICH THE TRIAL COURT TOOK OF SEC. 6.  THE HOLDING
IS THAT THE VIEW WHICH THE TRIAL COURT SHOULD HAVE TAKEN, WHICH ALL
TRIAL COURTS WILL HAVE TO TAKE HEREAFTER, AND WHICH, WHATEVER THE
LANGUAGE USED IN THE CHARGE, MUST CONTROL A JURY'S FINDINGS FROM THE
EVIDENCE, IS THE ELUCIDATION WHICH THE COURT NOW GIVES TO SEC. 6.  FOR
PRACTICAL PURPOSES, THIS ELUCIDATION IMMUNIZES UNIONS AND CORPORATE
OFFENDERS FOR ACTS WHICH THEIR AGENTS PERFORM BECAUSE THEY ARE AGENTS
AND, AS SUCH, ENDOWED WITH AUTHORITY.  FOR PRACTICAL PURPOSES, A UNION
OR A CORPORATION COULD NOT BE CONVICTED ON ANY EVIDENCE LIKELY TO
EXIST, IF THE TRIAL COURT HAS TO CHARGE WHAT THE COURT NOW HOLDS TO BE
REQUIRED BY SEC. 6. 

THE TRIAL COURT REPEATEDLY WARNED THE JURY THAT TO FIND GUILT THEY
MUST BE SATISFIED BEYOND A REASONABLE DOUBT.  IT INSTRUCTED THE JURY
THAT THE GUILT OR INNOCENCE OF LABOR UNIONS SHOULD BE DETERMINED IN THE
SAME MANNER AS THAT OF CORPORATIONS.  ON THE QUESTION OF AUTHORIZATION,
IT CHARGED THAT "THE ACT OF AN AGENT DONE FOR OR ON BEHALF OF A
CORPORATION AND WITHIN THE SCOPE OF HIS AUTHORITY, OR AN ACT WHICH AN
AGENT HAS ASSUMED TO DO FOR A CORPORATION WHILE PERFORMING DUTIES
ACTUALLY DELEGATED TO HIM, IS DEEMED TO BE THE ACT OF THE
CORPORATION."  THAT STATEMENT CORRECTLY EXPRESSES THE STANDARD OF GUILT
OF CORPORATIONS AND UNIONS UNDER ALL OTHER CRIMINAL STATUTES.  IF IT IS
NOT THE STANDARD FOR VIOLATIONS OF THE SHERMAN LAW IT IS ONLY BECAUSE
THE COURT NOW READS IN SEC. 6 AN EXCEPTION TO THE WHOLE OF THE CRIMINAL
LAW.  PRESUMABLY TRIAL COURTS WILL CONSCIENTIOUSLY APPLY THE INTENDMENT
OF THE OPINION OF THE COURT.  THAT MEANS THAT THEY WILL HAVE TO CHARGE
JURIES THAT THE RULES OF AGENCY DO NOT APPLY IN SHERMAN LAW CASES -
THERE MUST BE MORE TO HOLD THE UNION FOR THE ACTS OF ITS OFFICERS.  AND
"MORE" WILL NOT BE FOUND IN VIEW OF THE PRACTICAL WORKINGS OF UNIONS,
REINFORCED BY THE SAFEGUARDS THEY WILL NATURALLY TAKE ON THE BASIS OF
THIS DECISION. 

ASIDE FROM THE ACTUALITIES OF TRADE UNION PRACTICE, THE TERMS OF SEC.
6, READ IN THE LIGHT OF ITS LEGISLATIVE HISTORY AND ITS PURPOSE, REPEL
THE RESULT REACHED BY THE COURT ONCE "WE FREE OUR MINDS FROM THE NOTION
THAT CRIMINAL STATUTES MUST BE CONSTRUED BY SOME ARTIFICIAL  ...
RULE."  UNITED STATES V. UNION SUPPLY CO., 215 U.S. 50, 55.  TO ASSURE
IMMUNITY TO POWERFUL UNIONS COLLABORATING WITH EMPLOYERS' ASSOCIATIONS
IN DISREGARD OF THE SHERMAN LAW, WAS NOT THE PURPOSE OF SEC. 6, AND THE
PROVISION SHOULD NOT BE SO READ.  THIS MINOR PROVISION OF THE NORRIS
LAGUARDIA ACT WAS DIRECTED AGAINST DECISIONS BY SOME OF THE FEDERAL
COURTS IN LITIGATION INVOLVING INDUSTRIAL CONTROVERSIES.  THE ABUSE WAS
MISAPPLICATION OF THE LAW OF AGENCY SO THAT LABOR UNIONS WERE HELD
RESPONSIBLE FOR THE CONDUCT OF INDIVIDUALS IN WHOM WAS LODGED NO
AUTHORITY TO WIELD THE POWER OF THE UNION.  BY UNDUE EXTENSION OF THE
DOCTRINE OF CONSPIRACY, WHEREBY THE ACT OF EACH CONSPIRATOR IS
CHARGEABLE TO ALL, UNIONS WERE ON OCCASION HELD RESPONSIBLE FOR
ISOLATED ACTS OF INDIVIDUALS, BELIEVED IN SOME INSTANCES TO HAVE BEEN
AGENTS PROVOCATEURS WHO HELD A SPURIOUS MEMBERSHIP IN THE UNION DURING
A STRIKE.  CONGRESS MERELY AIMED TO CURB SUCH AN ABUSIVE MISAPPLICATION
OF THE PRINCIPLE OF AGENCY.  IT DID NOT MEAN TO CHANGE THE WHOLE LEGAL
BASIS OF COLLECTIVE RESPONSIBILITY.  BY TALKING ABOUT "ACTUAL
AUTHORIZATION," CONGRESS MERELY MEANT TO EMPHASIZE THAT PERSONS FOR
WHOSE ACTS A CORPORATION OR A UNION IS TO BE HELD RESPONSIBLE SHOULD
REALLY BE WIELDING AUTHORITY FOR SUCH CORPORATION OR UNION. 

THE CONGRESSIONAL PURPOSE BEHIND SEC. 6, THEN, IS CLEAR.  FN2  ALL
THAT CONGRESS SOUGHT TO DO WAS TO ELIMINATE AN EXTRANEOUS DOCTRINE THAT
HAD CREPT INTO SOME OF THE DECISIONS, WHEREBY ORGANIZATIONS WERE HELD
RESPONSIBLE NOT FOR ACTS OF AGENTS WHO HAD AUTHORITY TO ACT, BUT FOR
EVERY ACT COMMITTED BY ANY MEMBER OF THE UNION MERELY BECAUSE HE WAS A
MEMBER, OR BECAUSE HE HAD SOME RELATION TO THE UNION ALTHOUGH NOT
AUTHORIZED BY VIRTUE OF HIS POSITION TO ACT FOR THE UNION IN WHAT HE
DID.  AND SO CONGRESS CHARGED THE FEDERAL COURTS WITH THE DUTY TO LOOK
SHARPLY TO THE RELATION OF THE INDIVIDUAL TO THE AFFAIRS OF THE
ORGANIZATION, AND NOT TO CONFOUND INDIVIDUAL WITH UNION UNLESS THE
INDIVIDUAL IS CLOTHED WITH POWER BY THE UNION, IN THE ORDINARY WAY OF
UNION OPERATION, IN DOING WHAT HE DOES FOR THE UNION.  A BASIS FOR
LIABILITY WHICH HAS ENTERED INTO THE WARP AND WOOF OF OUR LAW, AS IS
TRUE OF THE RESPONSIBILITY OF COLLECTIVE BODIES FOR THE ACTS OF THEIR
AGENTS, SHOULD NOT BE DEEMED TO HAVE BEEN UPROOTED BY AN ENACTMENT
WHICH MERELY EMPHASIZES THAT BASIS AND RULES OUT ITS DISTORTIONS.  1932
WAS TOO LATE IN THE DAY FOR CONGRESS NOT TO HAVE KNOWN THAT UNIONS,
LIKE OTHER ORGANIZATIONS, ACT ONLY THROUGH OFFICERS, AND THAT UNIONS DO
NOT, ANY MORE THAN DO OTHER ORGANIZATIONS, EXPLICITLY INSTRUCT THEIR
OFFICERS TO VIOLATE THE SHERMAN LAW.  NEITHER BY INADVERTENCE NOR ON
PURPOSE DID CONGRESS REMOVE THE LEGAL LIABILITY OF ORGANIZATIONS FOR
THE CONDUCT OF OFFICIALS WHO, WITHIN THE LIMITS OF THEIR AUTHORITY,
WIELD THE POWER OF THOSE ORGANIZATIONS.  IT IS NOT LIGHTLY TO BE
ASSUMED THAT CONGRESS WOULD THUS TURN BACK THE CLOCK OF LEGAL HISTORY A
HUNDRED YEARS AND DISREGARD THE PRACTICALITIES OF COLLECTIVE ACTION BY
POWERFUL ORGANIZATIONS. 

NOR ARE THE DEBILITATING IMPLICATIONS FOR SHERMAN LAW ENFORCEMENT OF
THE CONSTRUCTION NOW PLACED ON SEC. 6 LIMITED TO THEIR BEARING ON UNION
ACTIVITIES.  CONGRESS DID NOT LAY DOWN ONE RULE OF LIABILITY FOR
CORPORATIONS AND ANOTHER FOR UNIONS.  ON THE CONTRARY, IT SUBJECTED
BOTH GROUPS OF ORGANIZATIONS TO THE SAME BASIS AND MEASURE OF
LIABILITY.  BOTH CAN ACT ONLY THROUGH RESPONSIBLE AGENTS AND BOTH ARE
RESPONSIBLE AS ORGANIZATIONS ONLY THROUGH THE ACTS OF SUCH AGENTS.  SEE
SEC. 13(B) OF THE NORRIS-LAGUARDIA ACT.  FN3  IF THE LIABILITY OF A
UNION DOES NOT FLOW FROM THE ACTS OF RESPONSIBLE OFFICERS ACTING IN THE
DUE COURSE OF THEIR AUTHORITY IN THE PURSUIT OF UNION PURPOSES, THEN A
CORPORATION "INTERESTED IN A LABOR DISPUTE" CANNOT BE HELD LIABLE FOR
THE ACTS OF ITS RESPONSIBLE OFFICERS ACTING WITHIN THEIR CUSTOMARY
AUTHORITY IN PURSUIT OF CORPORATE PURPOSES.  VIOLATIONS OF THE SHERMAN
LAW BY CORPORATE OFFICERS ACTING ON BEHALF OF THE CORPORATION AND
PURSUING ITS ECONOMIC INTEREST ARE NOT USUALLY EXPLICITLY AUTHORIZED BY
A FORMAL VOTE OF THE BOARD OF DIRECTORS OR BY THE STOCKHOLDERS IN
ANNUAL MEETING ASSEMBLED. 

THE TEACHING OF THE PRESENT CASE CAN HARDLY FAIL.  TO COME UNDER THE
COURT'S INDULGENT RULE OF IMMUNITY FROM LIABILITY FOR THE ACTS OF ITS
OFFICERS, UNIONS WILL NOT REST ON A LACK OF AFFIRMATIVE AUTHORIZATION. 
TO MAKE ASSURANCE DOUBLY SURE THEY WILL, DOUBTLESS IN GOOD CONSCIENCE,
HAVE STANDING ORDERS DISAVOWING AUTHORITY ON THE PART OF THEIR OFFICERS
TO MAKE ANY AGREEMENTS WHICH MAY BE FOUND TO BE IN VIOLATION OF THE
SHERMAN LAW.  SO ALSO, CORPORATIONS "INTERESTED IN A LABOR DISPUTE,"
AS, FOR INSTANCE, BY COMBINING TO RESIST WHAT THEY DEEM UNREASONABLE
LABOR DEMANDS, WILL, BY THE FORMALITY OF A RESOLUTION AT A DIRECTORS'
MEETING, DISAVOW AND DISAPPROVE ANY ARRANGEMENTS MADE BY THEIR OFFICERS
WHICH RUN AFOUL OF THE SHERMAN LAW.  THIS MAY ACHIEVE IMMUNITY EVEN
THOUGH THE OFFICERS ARE MOVING WITHIN THE ORBIT OF THEIR NORMAL
AUTHORITY AND ARE ACTING SOLELY IN THE INTERESTS OF THEIR CORPORATION. 

WORDS ARE SYMBOLS OF MEANING.  IN CONSTRUING SEC. 6, AS IN CONSTRUING
OTHER ENACTMENTS OF CONGRESS, MEANING MUST BE EXTRACTED FROM WORDS AS
THEY ARE USED IN RELATION TO THEIR SETTING, WITH DUE REGARD TO THE EVIL
WHICH THE LEGISLATION WAS DESIGNED TO CURE AS WELL AS TO THE
MISCHIEVOUS AND STARTLING CONSEQUENCES OF ONE CONSTRUCTION AS AGAINST
ANOTHER.  "DOUBT, IF THERE CAN BE ANY, IS NOT LIKELY TO SURVIVE A
CONSIDERATION OF THE MISCHIEFS CERTAIN TO BE ENGENDERED  ...  THE MIND
REBELS AGAINST THE NOTION THAT CONGRESS  ...  WAS WILLING TO FOSTER AN
OPPORTUNITY FOR JUGGLING SO FACILE AND SO OBVIOUS."  CARDOZO, J., IN
WOOLFORD REALTY CO. V. ROSE, 286 U.S. 319, 329-30. 

PRACTICALLY SPEAKING, THE INTERPRETATION GIVEN BY THE COURT TO SEC. 6
SERVES TO IMMUNIZE UNIONS, ESPECIALLY THE MORE ALERT AND POWERFUL, AS
WELL AS CORPORATIONS INVOLVED IN LABOR DISPUTES, FROM SHERMAN LAW
LIABILITY.  TO INSIST THAT SUCH IS NOT THE RESULT INTENDED BY THE COURT
IS TO DENY THE PRACTICAL CONSEQUENCES OF THE COURT'S RULING.  FOR THOSE
ENTRUSTED WITH THE ENFORCEMENT OF THE SHERMAN LAW THERE MAY BE FOUND IN
THE OPINION WORDS OF PROMISE TO THE EAR, BUT THE DECISION BREAKS THE
PROMISE TO THE HOPE. 

IN OUR VIEW THE JUDGMENTS BELOW SHOULD BE AFFIRMED. 

FN1  "SEC.  6.  NO OFFICER OR MEMBER OF ANY ASSOCIATION OR
ORGANIZATION, AND NO ASSOCIATION OR ORGANIZATION PARTICIPATING OR
INTERESTED IN A LABOR DISPUTE, SHALL BE HELD RESPONSIBLE OR LIABLE IN
ANY COURT OF THE UNITED STATES FOR THE UNLAWFUL ACTS OF INDIVIDUAL
OFFICERS, MEMBERS, OR AGENTS, EXCEPT UPON CLEAR PROOF OF ACTUAL
PARTICIPATION IN, OR ACTUAL AUTHORIZATION OF, SUCH ACTS, OR OF
RATIFICATION OF SUCH ACTS AFTER ACTUAL KNOWLEDGE THEREOF."  47 STAT.
70, 71, 29 U.S.C. SEC. 106. 

FN2  SEE THE STATEMENT OF SENATOR BLAINE, A COMMITTEE SPOKESMAN:  "I
HAVE THIS MEMORANDUM WHICH I CAN REFER TO WHICH GIVES THE PURPOSE OF
THIS SECTION 6.  THIS IS MERELY THE APPLICATION OF THE SOUND PRINCIPLES
OF THE LAW OF AGENCY TO LABOR CASES.  IT HAS BECOME NECESSARY BECAUSE
THE FEDERAL COURTS IN MANY CASES HAVE HELD THE UNION OR MEMBERS NOT
CONNECTED WITH THE UNLAWFUL ACTS RESPONSIBLE FOR THOSE ACTS ALTHOUGH
PROOF OF ACTUAL AUTHORIZATION OR RATIFICATION IS WHOLLY LACKING. 

"NOW, THAT IS THE LAW OF AGENCY, AND WE WANT TO APPLY THAT.  WE WANT
TO APPLY THAT FOR THIS REASON, THAT IF IT IS UNJUST TO HOLD ALL MEMBERS
OF THE UNION RESPONSIBLE FOR THE ACTS OF ITS OFFICERS AND THEIR MEMBERS
MERELY BECAUSE OF SUCH MEMBERSHIP, SIMILARLY IT IS UNJUST TO HOLD THE
OFFICERS RESPONSIBLE DURING THE STRIKE MERELY BECAUSE THEY PASS ON
QUESTIONS OF THIS KIND, THAT AN ATTEMPT IS HERE MADE TO RECOGNIZE THE
RULES OF LAW OF AGENCY IN LABOR CASES."  SEE HEARINGS BEFORE
SUBCOMMITTEE OF SENATE COMMITTEE ON THE JUDICIARY, S. 1482, 70TH CONG.,
2D SESS., P. 763. 

THE SENATE COMMITTEE REPORTED THIS:  "THERE HAS BEEN A DISTINCT
CONFLICT OF OPINION IN THE COURTS AS TO THE DEGREE OF PROOF REQUIRED. 
MERE EX PARTE AFFIDAVITS ESTABLISHING A CERTAIN AMOUNT OF LAWLESS
CONDUCT IN THE PROSECUTION OF A STRIKE HAVE BEEN HELD IN SOME INSTANCES
TO ESTABLISH A 'PRESUMPTION' THAT THE ENTIRE UNION AND ITS OFFICERS
WERE ENGAGED IN AN UNLAWFUL CONSPIRACY; AND, ON THE OTHER HAND, OTHER
COURTS HAVE DECLINED THUS TO SUBSTITUTE INFERENCE FOR PROOF, REJECTING
SUCH A DOCTRINE IN LANGUAGE SUCH AS THE FOLLOWING USED IN A NEW YORK
CASE:  'IS IT THE LAW THAT A PRESUMPTION OF GUILT ATTACHES TO A LABOR
UNION ASSOCIATION?'  VARIOUS EXAMPLES OF THESE DIFFERENT RULINGS ARE
QUOTED IN THE LABOR INJUNCTION, BY FRANKFURTER AND GREENE, PP. 74-75. 

"IT IS APPROPRIATE AND NECESSARY TO DEFINE BY LEGISLATION THE PROPER
RULE OF EVIDENCE TO BE FOLLOWED IN THIS MATTER IN FEDERAL COURTS.  THAT
IS THE ONLY OBJECT OF SECTION 6."  S. REP. NO. 163, 72D CONG., 1ST
SESS. (1932) PP. 20-21. 

FN3  "SEC.  13.  WHEN USED IN THIS ACT, AND FOR THE PURPOSES OF THIS
ACT -  ... (B) A PERSON OR ASSOCIATION SHALL BE HELD TO BE A PERSON
PARTICIPATING OR INTERESTED IN A LABOR DISPUTE IF RELIEF IS SOUGHT
AGAINST HIM OR IT, AND IF HE OR IT IS ENGAGED IN THE SAME INDUSTRY,
TRADE, CRAFT, OR OCCUPATION IN WHICH SUCH DISPUTE OCCURS, OR HAS A
DIRECT OR INDIRECT INTEREST THEREIN, OR IS A MEMBER, OFFICER, OR AGENT
OF ANY ASSOCIATION COMPOSED IN WHOLE OR IN PART OF EMPLOYERS OR
EMPLOYEES ENGAGED IN SUCH INDUSTRY, TRADE, CRAFT, OR OCCUPATION."  47
STAT. 70, 73, 29 U.S.C. SEC. 113(B). 
..END :



















JOSEPH V. CARTER & WEEKES CO., 330 U.S. 422 


ARGUED MARCH 1, 1946.  - REARGUED NOVEMBER 12, 1946.  - DECIDED MARCH
10, 1947.  - 294 N.Y. 906, 908, 63 N.E.2D 112, AFFIRMED. 


1.  NEW YORK CITY LEVIED AN EXCISE TAX ON THE GROSS RECEIPTS OF A
STEVEDORING CORPORATION ENGAGED WHOLLY WITHIN THE TERRITORIAL LIMITS OF
THE CITY IN LOADING AND UNLOADING VESSELS MOVING IN INTERSTATE AND
FOREIGN COMMERCE.  HELD:  SUCH A TAX IS INVALID, SINCE IT WOULD BURDEN
INTERSTATE AND FOREIGN COMMERCE IN VIOLATION OF THE COMMERCE CLAUSE OF
THE CONSTITUTION.  PP. 427, 433-434. 

2.  LOADING AND UNLOADING ARE ESSENTIAL PARTS OF TRANSPORTATION
ITSELF.  THEREFORE, STEVEDORING IS ESSENTIALLY A PART OF INTERSTATE AND
FOREIGN COMMERCE AND CANNOT BE SEPARATED THEREFROM FOR PURPOSES OF
LOCAL TAXATION.  PP. 427, 433. 

3.  PUGET SOUND STEVEDORING CO. V. STATE TAX COMM'N, 302 U.S. 90,
REAFFIRMED.  P. 433. 

4.  WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250; SOUTHERN
PACIFIC CO. V. GALLAGHER, 306 U.S. 167; MCGOLDRICK V. BERWIND-WHITE
COAL MINING CO., 309 U.S. 33; DEPARTMENT OF TREASURY V. WOOD PRESERVING
CORP., 313 U.S. 62, DISTINGUISHED.  PP. 430-433. 

JOSEPH, COMPTROLLER, ET AL. V. CARTER & WEEKES STEVEDORING CO. 

NO. 29.  CERTIORARI TO THE SUPREME COURT OF NEW YORK* . 

*TOGETHER WITH NO. 30, JOSEPH, COMPTROLLER, ET AL. V. JOHN T. CLARK &
SON, ALSO ON CERTIORARI TO THE SAME COURT. 

THE COMPTROLLER OF THE CITY OF NEW YORK DETERMINED THAT CERTAIN
STEVEDORING COMPANIES WERE LIABLE FOR TAXES ON THEIR GROSS RECEIPTS
UNDER THE GENERAL BUSINESS TAX LAWS OF NEW YORK CITY.  ON REVIEW, THE
COMPTROLLER'S DETERMINATIONS WERE ANNULLED BY THE SUPREME COURT OF NEW
YORK, APPELLATE DIVISION.  269 APP. DIV. 685, 54 N.Y.S.2D 380, 383. 
THE NEW YORK COURT OF APPEALS AFFIRMED.  294 N.Y. 906, 908, 63 N.E.2D
112.  THIS COURT GRANTED CERTIORARI.  326 U.S. 713.  AFFIRMED, P. 434. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE TWO WRITS OF CERTIORARI BRING BEFORE THIS COURT CONTENTIONS IN
REGARD TO THE APPLICATION TO THE RESPECTIVE RESPONDENTS, CARTER &
WEEKES STEVEDORING COMPANY AND JOHN T. CLARK & SON, OF NEW YORK CITY,
OF THE GENERAL BUSINESS TAX LAWS COVERING, WHEN BOTH CASES ARE
CONSIDERED, THE YEARS 1937 TO 1941, INCLUSIVE.  FN1  THE CHARACTER OF
THE TAXES IN ISSUE WILL APPEAR FROM A SECTION, SET OUT BELOW, OF A
LOCAL LAW IMPOSING THE TAX FOR 1939 AND 1940.  FN2  THE RESPECTIVE
TAXPAYERS ARE LIABLE ALSO FOR THE GENERAL INCOME AND AD VALOREM TAXES
OF THE STATE AND CITY OF NEW YORK.  BOTH RESPONDENTS ARE CORPORATIONS
ENGAGED IN THE BUSINESS OF GENERAL STEVEDORING.  FOR THESE CASES, THE
BUSINESS OF RESPONDENTS MAY BE CONSIDERED AS CONSISTING ONLY OF TAKING
FREIGHT FROM A CONVENIENT PLACE ON THE PIER OR LIGHTER WHOLLY WITHIN
THE TERRITORIAL LIMITS OF NEW YORK CITY AND STORING IT PROPERLY FOR
SAFETY AND FOR HANDLING IN OR ON THE OUTGOING VESSEL ALONGSIDE, OR OF
SIMILARLY UNLOADING A VESSEL ON ITS ARRIVAL.  THE VESSELS MOVED IN
INTERSTATE OR FOREIGN COMMERCE, WITHOUT A CALL AT ANY OTHER PORT OF NEW
YORK.  WE DO NOT FIND IT NECESSARY TO CONSIDER SEPARATELY INTERSTATE
AND FOREIGN COMMERCE.  THE COMMERCE CLAUSE COVERS BOTH. 

THROUGH STATUTORY PROCEEDINGS UNNECESSARY TO PARTICULARIZE, THE
COMPTROLLER OF THE CITY OF NEW YORK DETERMINED THAT THE RESPONDENTS
WERE LIABLE FOR PERCENTAGE TAXES UPON THE ENTIRE GROSS RECEIPTS FROM
THE ABOVE ACTIVITIES FOR THE YEARS IN QUESTION UNDER THE PROVISIONS OF
THE RESPECTIVE LOCAL LAWS TO WHICH REFERENCE HAS BEEN MADE.  REVIEW OF
THESE DETERMINATIONS WAS HAD BY RESPONDENTS IN THE SUPREME COURT OF NEW
YORK, APPELLATE DIVISION.  THE DETERMINATIONS OF THE COMPTROLLER WERE
ANNULLED ON THE AUTHORITY OF PUGET SOUND STEVEDORING CO. V. TAX
COMMISSION, 302 U.S. 90.  269 APP. DIV. 685, 54 N.Y.S.2D 380, 383. 
THESE ORDERS WERE AFFIRMED BY THE COURT OF APPEALS, 294 N.Y. 906, 908,
63 N.E.2D 112, AND REMITTITURS ISSUED STATING THAT THE COURT OF APPEALS
AFFIRMED ON THE GROUND THAT THE LOCAL LAWS AS APPLIED IN THESE CASES
WERE IN VIOLATION OF ARTICLE I, SEC. 8, CLAUSE 3, OF THE CONSTITUTION
OF THE UNITED STATES.  FN3  WRITS OF CERTIORARI TO THIS COURT WERE
SOUGHT AND GRANTED ON THE ISSUE OF WHETHER OR NOT THIS TAX ON THESE
RESPONDENTS CONSTITUTED AN UNCONSTITUTIONAL BURDEN ON COMMERCE. 

PETITIONERS RECOGNIZE THE FORCE OF THE PUGET SOUND CASE AS A
PRECEDENT.  THEIR ARGUMENT IS THAT SUBSEQUENT HOLDINGS OF THIS COURT
HAVE INDICATED THAT THE REASONS WHICH UNDERLAY THE DECISION ARE NO
LONGER CONTROLLING IN JUDICIAL EXAMINATION OF THE CONSTITUTIONALITY OF
STATE TAXATION OF THE GROSS PROCEEDS DERIVED FROM COMMERCE, SUBJECT TO
FEDERAL REGULATION.  THEY CITE, AMONG OTHERS, THESE LATER DECISIONS:
WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250; SOUTHERN PACIFIC
CO. V. GALLAGHER, 306 U.S. 167; MCGOLDRICK V. BERWIND-WHITE CO., 309
U.S. 33; DEPARTMENT OF TREASURY V. WOOD PRESERVING CORP., 313 U.S. 62. 

IN THE PUGET SOUND CASE A STATE TAX ON GROSS RECEIPTS,
INDISTINGUISHABLE FROM THAT LAID BY NEW YORK CITY IN THIS CASE, WAS
HELD INVALID AS APPLIED TO STEVEDORING ACTIVITIES EXACTLY LIKE THOSE
WITH WHICH WE ARE HERE CONCERNED.  THE PUGET SOUND OPINION POINTED OUT,
P. 92 ET SEQ., THAT TRANSPORTATION BY WATER IS IMPOSSIBLE WITHOUT
LOADING AND UNLOADING.  THOSE INCIDENTS TO TRANSPORTATION OCCUPY THE
SAME RELATION TO THAT COMMERCE WHETHER PERFORMED BY THE CREW OR BY
STEVEDORE, CONTRACTING INDEPENDENTLY TO HANDLE THE CARGO.  THE MOVEMENT
OF CARGO OFF AND ON THE SHIP IS SUBSTANTIALLY A CONTINUATION OF THE
TRANSPORTATION.  CF. BALTIMORE & O.S.W.R. CO. V. BURTCH, 263 U.S. 540. 

IT IS TRITE TO REPEAT THAT THE WANT OF POWER IN THE CONFEDERATION TO
REGULATE COMMERCE WAS A PRINCIPAL REASON FOR THE ADOPTION OF THE
CONSTITUTION.  THE COMMERCE CLAUSE BEARS NO LIMITATION OF POWER UPON
ITS FACE AND, WHEN THE CONGRESS ACTS UNDER IT, INTERPRETATION HAS
SUGGESTED NONE, EXCEPT SUCH AS MAY BE PRESCRIBED BY THE CONSTITUTION. 
GIBBONS V. OGDEN, 9 WHEAT.  1, 196; UNITED STATES V. CAROLENE PRODUCTS
CO., 304 U.S. 144, 147; NORTH AMERICAN CO. V. S.E.C., 327 U.S. 686,
704.  ON THE OTHER HAND, THE CONSTITUTION, BY WORDS, PLACES NO
LIMITATION UPON A STATE'S POWER TO TAX THE THINGS OR ACTIVITIES OR
PERSONS WITHIN ITS BOUNDARIES.  WHAT LIMITATIONS THERE ARE SPRING FROM
APPLICATIONS TO STATE TAX SITUATIONS OF GENERAL CLAUSES OF THE
CONSTITUTION.  E.G., ART. I, SEC. 10, CL. 2 AND 3; NEW YORK INDIANS, 5
WALL.  761; BOARD OF COUNTY COMMISSIONERS V. UNITED STATES, 308 U.S.
343; BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 237; LAWRENCE V.
STATE TAX COMMISSION, 286 U.S. 276, 284; HENDERSON BRIDGE CO. V.
HENDERSON CITY, 173 U.S. 592, 614-15; NEW YORK RAPID TRANSIT CORP. V.
CITY OF NEW YORK, 303 U.S. 573, 581-82.  FROM THE COMMERCE CLAUSE
ITSELF, THERE COMES, ALSO, AN ABRIDGMENT OF THE STATE'S POWER TO TAX
WITHIN ITS TERRITORIAL LIMITS.  THIS HAS ARISEN FROM LONG-CONTINUED
JUDICIAL INTERPRETATION THAT, WITHOUT CONGRESSIONAL ACTION, THE WORDS
THEMSELVES OF THE COMMERCE CLAUSE FORBID UNDUE INTERFERENCES BY THE
STATES WITH INTERSTATE COMMERCE  FN4  AND THAT THIS RULE APPLIES IN
FULL FORCE TO AN UNAPPORTIONED  FN5  TAX ON THE GROSS PROCEEDS FROM
INTERSTATE STATE BUSINESS,  FN6  WHERE THE TAXES WERE NOT IN LIEU OF AD
VALOREM TAXES ON PROPERTY.  FN7 

WE DO NOT THINK THAT A TAX ON GROSS INCOME FROM STEVEDORING,
OBVIOUSLY A "CONTINUATION OF THE TRANSPORTATION," IS A TAX APPORTIONED
TO INCOME DERIVED FROM ACTIVITIES WITHIN THE TAXING STATE.  THE
TRANSPORTATION IN COMMERCE, AT THE LEAST, BEGINS WITH LOADING AND ENDS
WITH UNLOADING.  LOADING AND UNLOADING HAS EFFECT ON TRANSPORTATION
OUTSIDE THE TAXING STATE BECAUSE THOSE ACTIVITIES ARE NOT ONLY
PRELIMINARY TO BUT ARE AN ESSENTIAL PART OF THE SAFETY AND CONVENIENCE
OF THE TRANSPORTATION ITSELF. 

WHEN WE COME TO WEIGH THE BURDEN OR INTERFERENCE OF THIS TAX ON THE
GROSS RECEIPTS FROM INTERSTATE COMMERCE, THE PURPOSES OF THAT PORTION
OF THE COMMERCE CLAUSE - THE FREEING OF BUSINESS FROM UNNEIGHBORLY
REGULATIONS THAT INHIBIT THE INTERCOURSE WHICH SUPPLIES RECIPROCAL
WANTS BY COMMERCE  FN8  - IS A SIGNIFICANT FACTOR FOR CONSIDERATION. 
AN INTERPRETATION OF THE TEXT TO LEAVE THE STATES FREE TO TAX COMMERCE
UNTIL CONGRESS INTERVENED WOULD HAVE PERMITTED INTOLERABLE
DISCRIMINATIONS.  NIPPERT V. CITY OF RICHMOND, 327 U.S. 416, AND CASES
COLLECTED IN NOTES 13, 14, 15 AND 16.  NEVERTHELESS, A PROPER REGARD
FOR THE AUTHORITY OF THE STATES AND THEIR RIGHT TO REQUIRE INTERSTATE
COMMERCE TO CONTRIBUTE BY TAXES TO THE SUPPORT OF THE STATE GOVERNMENTS
WHICH MAKE THEIR INTERSTATE COMMERCE POSSIBLE, HAS LED CONGRESS, OVER A
LONG PERIOD, TO LEAVE INTACT THE JUDICIAL RULINGS, REFERRED TO ABOVE,
THAT APPORTIONED, NON-DISCRIMINATORY GROSS RECEIPT TAXES OR THOSE
FAIRLY LEVIED IN LIEU OF PROPERTY TAXES CONFORMED TO THE REQUIREMENTS
OF THE COMMERCE CLAUSE.  AS THE POWER LIES IN CONGRESS UNDER THE CLAUSE
TO MAKE ANY DESIRED ADJUSTMENT IN THE TAXATION AREA, ITS ACQUIESCENCE
IN OUR FORMER RULINGS ON STATE TAXATION INDICATES ITS AGREEMENT WITH
THE ADJUSTMENTS OF THE COMPETING INTERESTS OF COMMERCE AND NECESSARY
STATE REVENUES.  FN9 THERE IS ANOTHER REASON THAT MAY BE THE BASIS FOR
THE ACCEPTANCE, ALMOST COMPLETE, BY CONGRESS OF THE JUDICIAL
INTERPRETATIONS IN THIS FIELD.  THIS IS THAT A WIDE LATITUDE EXISTS FOR
PERMISSIBLE STATE TAXATION.  THIS TERM, IN AN EFFORT TO SHOW THAT THE
REACH OF THE COMMERCE CLAUSE DID NOT DESTROY THE STATE'S POWER TO MAKE
COMMERCE PAY ITS WAY, WE ELABORATED THE FACT THAT TAXES ON THE COMMERCE
ITSELF WAS NOT THE SOLE SOURCE OF STATE REVENUE FROM THAT COMMERCE. 
FREEMAN V. HEWIT, SUPRA, P. 254; SEE ALSO ADAMS MFG. CO. V. STOREN,
SUPRA, 310. 

A POWER IN A STATE TO TAX INTERSTATE COMMERCE OR ITS GROSS PROCEEDS,
UNHAMPERED BY THE COMMERCE CLAUSE, WOULD PERMIT A MULTIPLE BURDEN UPON
THAT COMMERCE.  THIS HAS BEEN NOTED AS GROUND FOR THEIR INVALIDATION. 
WESTERN LIVE STOCK V. BUREAU, 303 U.S. 250, 255.  THE SELECTION OF AN
INTRASTATE INCIDENT AS THE TAXABLE EVENT ACTUALLY CARRIES A SIMILAR
THREAT TO THE COMMERCE BUT, WHERE THE TAXABLE EVENT IS CONSIDERED
SUFFICIENTLY DISJOINED FROM THE COMMERCE, IT IS THOUGHT TO BE A
PERMISSIBLE STATE LEVY.  FN10  THIS RESULT GENERALLY IS REACHED BECAUSE
THE LOCAL INCIDENT SELECTED IS ONE THAT IS ESSENTIALLY LOCAL AND IS NOT
REPEATED IN EACH TAXING UNIT.  IN THE PRESENT CASE, THE THREAT OF A
MULTIPLE BURDEN, EXCEPT IN THE FEW INSTANCES IN THE RECORD OF
INTERSTATE, IN DISTINCTION TO FOREIGN, COMMERCE, IS ABSENT.  THE
MULTIPLE BURDEN ON INTERSTATE TRANSPORTATION FROM TAXATION OF THE GROSS
RECEIPTS FROM STEVEDORING ARISES FROM THE POSSIBILITY OF A SIMILAR TAX
FOR UNLOADING.  THE ACTUAL EFFECT ON THE COST OF CARRYING ON THE
COMMERCE DOES NOT DIFFER FROM THAT IMPOSED BY ANY OTHER TAX EXACTION -
AD VALOREM, NET INCOME OR EXCISE.  CF. WESTERN LIVE STOCK V. BUREAU,
SUPRA, 254.  WE NEED CONSIDER ONLY WHETHER OR NOT THE LOADING AND
UNLOADING IS DISTINCT ENOUGH FROM THE COMMERCE TO PERMIT THE TAX ON THE
GROSS. 

ON PRECEDENT, THE PUGET SOUND CASE IS CONTROLLING.  IT WAS PROMPTLY
AND RECENTLY CITED WITH APPROVAL.  FN11  IT APPEARS IN ADAMS MFG. CO.
V. STOREN  FN12  IN SUPPORT OF THE POSSIBLE DOUBLE TAX ARGUMENT AGAINST
LEVIES ON INTERSTATE COMMERCE.  IN WESTERN LIVE STOCK V. BUREAU, SUPRA,
258, IT WAS ADVERTED TO AS A CASE FOR COMPARISON WITH A RULING THAT
"PREPARING, PRINTING AND PUBLISHING MAGAZINE ADVERTISING IS PECULIARLY
LOCAL AND DISTINCT FROM ITS CIRCULATION WHETHER OR NOT THAT CIRCULATION
BE INTERSTATE COMMERCE."  THE CASE WAS NOT INCLUDED IN THE COURT'S
OPINION IN GWIN, WHITE & PRINCE, INC. V. HENNEFORD,  FN13  WHERE A
STATE GROSS RECEIPTS TAX ON INCOME FROM MARKETING FRUIT INTERSTATE WAS
INVALIDATED UNDER THE COMMERCE CLAUSE, OR IN MCGOLDRICK V. BERWIND
WHITE CO.,  FN14  THOUGH RELIED UPON IN THE CONCURRING OPINION IN THE
FIRST AT P. 442 AND THE DISSENT IN THE SECOND AT P. 62.  UPON
EXAMINATION THIS HISTORY GIVES AN IMPRESSION THAT THERE HAS BEEN A
DOUBT AS TO THE CONTINUED VITALITY OF PUGET SOUND.  WE COME NOW FACE TO
FACE WITH THE PROBLEM OF OVERRULING OR APPROVING THE CASE. 

SINCE PUGET SOUND THERE HAS BEEN FULL CONSIDERATION OF HOW FAR A STATE
MAY GO IN TAXING INTRASTATE INCIDENTS CLOSELY RELATED IN TIME AND
MOVEMENT TO THE INTERSTATE COMMERCE.  THE CASES THAT LEND STRONGEST
SUPPORT TO PETITIONERS' ARGUMENT FOR OVERRULING THE PUGET SOUND
DECISION HAVE BEEN REFERRED TO ABOVE.  WE COMMENT FURTHER UPON THEM. 
THE 2% EXCISE TAX LEVIED BY NEW MEXICO ON THE GROSS RECEIPTS OF
PUBLISHERS FROM ADVERTISING, UPHELD IN WESTERN LIVE STOCK, WAS FOUND TO
BE AN EXACTION FOR CARRYING ON A LOCAL BUSINESS.  FN15  THE GALLAGHER
CASE TURNS EXPRESSLY ON OUR CONCLUSION THAT A USE TAX IS VALIDLY LEVIED
ON AN INTRASTATE EVENT, "SEPARATE AND APART FROM INTERSTATE COMMERCE,"
P. 176, AND THE WOOD PRESERVING CASE  FN16  REACHED A SIMILAR RESULT BY
REASON OF THE FACT THAT THE TAXPAYER SOLD AND DELIVERED ITS TIES
INTRASTATE BEFORE TRANSPORTATION BEGAN, 313 U.S. AT 67.  THIS IS
LIKEWISE TRUE OF AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459, AS
EXPLAINED IN THE STOREN CASE.  FN17  WHEN WE EXAMINE THE BERWIND-WHITE
TAX ON THE PURCHASERS OF TANGIBLE PERSONAL PROPERTY FOR CONSUMPTION,
THERE IS THE SAME RELIANCE UPON THE LOCAL CHARACTER OF THE SALE, PP.
43, 47, 49, 58.  FN18  WE THERE SAID, P. 48: 

"CERTAIN TYPES OF TAX MAY, IF PERMITTED AT ALL, SO READILY BE MADE
THE INSTRUMENT OF IMPEDING OR DESTROYING INTERSTATE COMMERCE AS PLAINLY
TO CALL FOR THEIR CONDEMNATION AS FORBIDDEN REGULATIONS.  SUCH ARE THE
TAXES ALREADY NOTED WHICH ARE AIMED AT OR DISCRIMINATE AGAINST THE
COMMERCE OR IMPOSE A LEVY FOR THE PRIVILEGE OF DOING IT, OR TAX
INTERSTATE TRANSPORTATION OR COMMUNICATION OR THEIR GROSS EARNINGS, OR
LEVY AN EXACTION ON MERCHANDISE IN THE COURSE OF ITS INTERSTATE
JOURNEY."  THOUGH ALL OF THESE CASES WERE CLOSELY RELATED TO
TRANSPORTATION IN COMMERCE BOTH IN TIME AND MOVEMENT, IT WILL BE NOTED
THAT IN EACH THERE CAN BE DISTINGUISHED A DEFINITE SEPARATION BETWEEN
THE TAXABLE EVENT AND THE COMMERCE ITSELF.  WE HAVE NO REASON TO DOUBT
THE SOUNDNESS OF THEIR CONCLUSIONS. 

STEVEDORING IS MORE A PART OF THE COMMERCE THAN ANY OF THE INSTANCES
TO WHICH REFERENCE HAS JUST BEEN MADE.  ALTHOUGH STATE LAWS DO NOT
DISCRIMINATE AGAINST INTERSTATE COMMERCE OR IN ACTUALITY OR BY
POSSIBILITY SUBJECT IT TO THE CUMULATIVE BURDEN OF MULTIPLE LEVIES,
THOSE LAWS MAY BE UNCONSTITUTIONAL BECAUSE THEY BURDEN OR INTERFERE
WITH COMMERCE.  SEE SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761,
767.  STEVEDORING, WE CONCLUDE, IS ESSENTIALLY A PART OF THE COMMERCE
ITSELF AND THEREFORE A TAX UPON ITS GROSS RECEIPTS OR UPON THE
PRIVILEGE OF CONDUCTING THE BUSINESS OF STEVEDORING FOR INTERSTATE AND
FOREIGN COMMERCE, MEASURED BY THOSE GROSS RECEIPTS, IS INVALID.  WE
REAFFIRM THE RULE OF PUGET SOUND STEVEDORING COMPANY.  "WHAT MAKES THE
TAX INVALID IS THE FACT THAT THERE IS INTERFERENCE BY A STATE WITH THE
FREEDOM OF INTERSTATE COMMERCE."  FREEMAN V. HEWIT, SUPRA, P. 256. 
SUCH A RULE MAY IN PRACTICE PROHIBIT A TAX THAT ADDS NO MORE TO THE
COST OF COMMERCE THAN A PERMISSIBLE USE OR SALES TAX.  WHAT LIFTS THE
RULE FROM FORMALISM IS THAT IT IS A RECOGNITION OF THE EFFECTS OF STATE
LEGISLATION AND ITS ACTUAL OR PROBABLE CONSEQUENCES.  NOT ONLY DOES IT
FOLLOW A LINE OF PRECEDENTS OUTLAWING TAXES ON THE COMMERCE ITSELF BUT
IT HAS REASON TO SUPPORT IT IN THE LIKELIHOOD THAT SUCH LEGISLATION
WILL FLOURISH MORE LUXURIANTLY WHERE THE MOST REVENUE WILL COME FROM
FOREIGN OR INTERSTATE COMMERCE.  THUS IN PORT CITIES AND TRANSPORTATION
OR HANDLING CENTERS, WITHOUT DISCRIMINATION AGAINST OUT-OF-STATE AS
COMPARED WITH LOCAL BUSINESS, LARGER PROPORTIONS OF NECESSARY REVENUE
COULD BE OBTAINED FROM THE FLOW OF COMMERCE.  THE AVOIDANCE OF SUCH A
LOCAL TOLL ON THE PASSAGE OF COMMERCE THROUGH A LOCALITY WAS ONE OF THE
REASONS FOR THE ADOPTION OF THE COMMERCE CLAUSE.  AFFIRMED. 

FN1  THE TAXES IN QUESTION WERE LEVIED BY THE CITY OF NEW YORK BY A
SERIES OF LOCAL LAWS, NO. 22 OF 1937, NO. 20 OF 1938, NO. 103 OF 1939,
NO. 78 OF 1940, NO. 47 OF 1941.  THE LOCAL LAWS WERE PASSED PURSUANT TO
AUTHORIZATION BY THE STATE OF NEW YORK.  SEE LAWS OF NEW YORK 1940, CH.
245.  THERE IS NO DISPUTE AS TO THE GENERAL VALIDITY OF THE LOCAL
LAWS.  SEE MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S. 33,
AND NEW YORK RAPID TRANSIT CORP. V. CITY OF NEW YORK, 303 U.S. 573. 
THESE CASES INVOLVED OTHER PHASES OF THESE LOCAL LAWS. 

CERTIORARI GRANTED, 326 U.S. 713; ARGUED MARCH 1, 1946; RESTORED TO
THE DOCKET FOR REARGUMENT APRIL 22, 1946. 

FN2  LOCAL LAWS OF THE CITY OF NEW YORK (1940), NO. 78: 

"SEC. R41-2.0.  IMPOSITION OF TAX.  A. FOR THE PRIVILEGE OF CARRYING
ON OR EXERCISING FOR GAIN OR PROFIT WITHIN THE CITY ANY TRADE,
BUSINESS, PROFESSION, VOCATION OR COMMERCIAL ACTIVITY OTHER THAN A
FINANCIAL BUSINESS, OR OF MAKING SALES TO PERSONS WITHIN SUCH CITY, FOR
EACH OF THE PERIODS OF ONE YEAR, OR ANY PART THEREOF, BEGINNING ON JULY
FIRST OF THE YEARS NINETEEN HUNDRED THIRTY-NINE AND NINETEEN HUNDRED
FORTY, EVERY PERSON SHALL PAY AN EXCISE TAX WHICH SHALL BE EQUAL TO ONE
TENTH OF ONE PERCENTUM UPON ALL RECEIPTS RECEIVED IN AND/OR ALLOCABLE
TO THE CITY FROM SUCH PROFESSION, VOCATION, TRADE, BUSINESS OR
COMMERCIAL ACTIVITY EXERCISED OR CARRIED ON BY HIM DURING THE CALENDAR
YEAR IN WHICH SUCH PERIOD SHALL COMMENCE,  ..." 

NO PROBLEM OF ALLOCATION OR APPORTIONMENT IS INVOLVED.  SEE SEC. B. NO
QUESTION IS RAISED BY PETITIONER THAT ANY PART OF THE TAX IS ALLOCABLE
TO RECEIPTS PROPERLY ATTRIBUTABLE TO DOING BUSINESS IN NEW YORK CITY,
IF ALL OF THE RECEIPTS ARE NOT SUBJECT TO THE LOCAL ACT.  SEC. R41
3.0. 

FN3  "THE CONGRESS SHALL HAVE POWER  ...  TO REGULATE COMMERCE WITH
FOREIGN NATIONS, AND AMONG THE SEVERAL STATES, AND WITH THE INDIAN
TRIBES; ..." 

FN4  SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761, 767-69, AND CASES
CITED; MORGAN V. VIRGINIA, 328 U.S. 373, 379, AND CASES CITED, N. 17;
FREEMAN V. HEWIT, 329 U.S. 249; RICHFIELD OIL CORP. V. STATE BOARD OF
EQUALIZATION, 329 U.S. 69, 75. 

FN5  COMPARE MAINE V. GRAND TRUNK R. CO., 142 U.S. 217; OKLAHOMA V.
WELLS, FARGO & CO., 223 U.S. 298, 301; UNDERWOOD TYPEWRITER CO. V.
CHAMBERLAIN, 254 U.S. 113; HANS REES' SONS V. NORTH CAROLINA, 283 U.S.
123; ILLINOIS CENTRAL R. CO. V. MINNESOTA, 309 U.S. 157. 

FN6  FARGO V. MICHIGAN, 121 U.S. 230; RATTERMAN V. WESTERN  UNION
TELEGRAPH CO., 127 U.S. 411, 428; LELOUP V. PORT OF MOBILE, 127 U.S.
640; WESTERN UNION TELEGRAPH CO. V. ALABAMA, 132 U.S. 472; GALVESTON,
HARRISBURG & SAN ANTONIO R. CO. V. TEXAS, 210 U.S. 217; OKLAHOMA V.
WELLS, FARGO & CO., 223 U.S. 298, 300; MINNESOTA RATE CASES, 230 U.S.
352, 400; CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292, 295; FISHER'S
BLEND STATION V. TAX COMM'N, 297 U.S. 650, 655; ADAMS MFG. CO. V.
STOREN, 304 U.S. 307, 312; FREEMAN V. HEWIT, SUPRA. 

FN7  POSTAL TELEGRAPH CABLE CO. V. ADAMS, 155 U.S. 688, 698; UNITED
STATES EXPRESS CO. V. MINNESOTA, 223 U.S. 335, 346-48. 

FN8  FEDERALIST 7, 22, 42; BALDWIN V. G.A.F. SEELIG, INC., 294 U.S.
511, 523. 

FN9  SEE CLARK DISTILLING CO. V. WESTERN MARYLAND R. CO., 242 U.S.
311, 326; UNITED STATES V. HILL, 248 U.S. 420; WHITFIELD V. OHIO, 297
U.S. 431; KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299
U.S. 334; PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408, 430; SOUTHERN
PACIFIC CO. V. ARIZONA, 325 U.S. 761, 769; FREEMAN V. HEWIT, 329 U.S.
249, 253. 

FN10  WESTERN LIVE STOCK V. BUREAU, SUPRA, 258-260; SOUTHERN PACIFIC
CO. V. GALLAGHER, 306 U.S. 167, 176; MCGOLDRICK V. BERWIND-WHITE CO.,
309 U.S. 33, 48; DEPT. OF TREASURY V. WOOD CORP., 313 U.S. 62. 

FN11  COVERDALE V. PIPE LINE CO., 303 U.S. 604, 609; SOUTHERN PACIFIC
CO. V. GALLAGHER, 306 U.S. 167, 178; FREEMAN V. HEWIT, SUPRA, P. 257. 

FN12  304 U.S. 307, 312. 

FN13  305 U.S. 434. 

FN14  309 U.S. 33. 

FN15  303 U.S. AT 257.  "ALL THE EVENTS UPON WHICH THE TAX IS
CONDITIONED - THE PREPARATION, PRINTING AND PUBLICATION OF THE
ADVERTISING MATTER, AND THE RECEIPT OF THE SUMS PAID FOR IT - OCCUR IN
NEW MEXICO AND NOT ELSEWHERE."  P. 260.  "SO FAR AS THE ADVERTISING
RATES REFLECT A VALUE ATTRIBUTABLE TO THE MAINTENANCE OF A CIRCULATION
OF THE MAGAZINE INTERSTATE, WE THINK THE BURDEN ON THE INTERSTATE
BUSINESS IS TOO REMOTE AND TOO ATTENUATED TO CALL FOR A RIGIDLY LOGICAL
APPLICATION OF THE DOCTRINE THAT GROSS RECEIPTS FROM INTERSTATE
COMMERCE MAY NOT BE MADE THE MEASURE OF A TAX....  PRACTICAL RATHER
THAN LOGICAL DISTINCTIONS MUST BE SOUGHT."  P. 259. 

THE ALTERNATE GROUND, P. 260, THAT SUCH A LOCAL TAX CANNOT BE LEVIED
ELSEWHERE IS INAPPOSITE IN SUCH A FOREIGN COMMERCE SITUATION AS THIS. 

FN16  SEE HARVESTER CO. V. DEPT. OF TREASURY, 322 U.S. 340, 348. 

FN17  304 U.S. AT 312-13: 

"THE STATE COURT AND THE APPELLEES RELY STRONGLY UPON AMERICAN MFG.
CO. V. ST. LOUIS, 250 U.S. 459, AS SUPPORTING THE TAX ON APPELLANT'S
TOTAL GROSS RECEIPTS DERIVED FROM COMMERCE WITH CITIZENS OF THE STATE
AND THOSE OF OTHER STATES OR FOREIGN COUNTRIES.  BUT THAT CASE DEALT
WITH A MUNICIPAL LICENSE FEE FOR PURSUING THE OCCUPATION OF A
MANUFACTURER IN ST. LOUIS.  THE EXACTION WAS NOT AN EXCISE LAID UPON
THE TAXPAYER'S SALES OR UPON THE INCOME DERIVED FROM SALES.  THE TAX ON
THE PRIVILEGE FOR THE ENSUING YEAR WAS MEASURED BY A PERCENTAGE OF THE
PAST YEAR'S SALES.  THE TAXPAYER HAD DURING THE PRECEDING YEAR REMOVED
SOME OF THE GOODS MANUFACTURED TO A WAREHOUSE IN ANOTHER STATE AND,
UPON SALE, DELIVERED THEM FROM THE WAREHOUSE.  IT CONTENDED THAT THE
CITY WAS WITHOUT POWER TO INCLUDE THESE SALES IN THE MEASURE OF THE TAX
FOR THE COMING YEAR.  THE COURT HELD, HOWEVER, THAT THE TAX WAS UPON
THE PRIVILEGE OF MANUFACTURING WITHIN THE STATE AND IT WAS PERMISSIBLE
TO MEASURE THE TAX BY THE SALES PRICE OF THE GOODS PRODUCED RATHER THAN
BY THEIR VALUE AT THE DATE OF MANUFACTURE.  IF THE TAX THERE UNDER
CONSIDERATION HAD BEEN A SALES TAX THE CITY COULD NOT HAVE MEASURED IT
BY SALES CONSUMMATED IN ANOTHER STATE." 

CF. FREEMAN V. HEWIT, 329 U.S. 249, 252. 

FN18 309 U.S. AT 49:  "ITS ONLY RELATION TO THE COMMERCE ARISES FROM
THE FACT THAT IMMEDIATELY PRECEDING TRANSFER OF POSSESSION TO THE
PURCHASER WITHIN THE STATE, WHICH IS THE TAXABLE EVENT REGARDLESS OF
THE TIME AND PLACE OF PASSING TITLE, THE MERCHANDISE HAS BEEN
TRANSPORTED IN INTERSTATE COMMERCE AND BROUGHT TO ITS JOURNEY'S END. 
SUCH A TAX HAS NO DIFFERENT EFFECT UPON INTERSTATE COMMERCE THAN A TAX
ON THE 'USE' OF PROPERTY WHICH HAS JUST BEEN MOVED IN INTERSTATE
COMMERCE, SUSTAINED IN MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86;
HENNEFORD V. SILAS MASON CO., SUPRA; FELT & TARRANT MFG. CO. V.
GALLAGHER, 306 U.S. 62; SOUTHERN PACIFIC CO. V. GALLAGHER, 306 U.S.
167, OR THE TAX ON STORAGE OR WITHDRAWAL FOR USE BY THE CONSIGNEE OF
GASOLINE, SIMILARLY SUSTAINED IN GREGG DYEING CO. V. QUERY, 286 U.S.
472; NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S. 249; EDELMAN
V. BOEING AIR TRANSPORT, 289 U.S. 249, OR THE FAMILIAR PROPERTY TAX ON
GOODS BY THE STATE OF DESTINATION AT THE CONCLUSION OF THEIR INTERSTATE
JOURNEY.  BROWN V. HOUSTON, SUPRA; AMERICAN STEEL & WIRE CO. V. SPEED,
192 U.S. 500." 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE RUTLEDGE CONCURS,
DISSENTING IN PART. 

FIRST.  I THINK THE TAX IS VALID INSOFAR AS IT REACHES THE GROSS
RECEIPTS FROM LOADING AND UNLOADING VESSELS ENGAGED IN INTERSTATE
COMMERCE. 

PUGET SOUND STEVEDORING CO. V. TAX COMMISSION, 302 U.S. 90, MAKES
CLEAR THAT RESPONDENTS' ACTIVITIES IN LOADING AND UNLOADING THE VESSELS
ARE INTERSTATE COMMERCE.  THAT CASE FOLLOWED A LONG LINE OF DECISIONS
FN1  WHEN IT HELD IN 1937 THAT A STATE COULD NOT TAX THE PRIVILEGE OF
ENGAGING IN INTERSTATE OR FOREIGN COMMERCE BY EXACTING A PERCENTAGE OF
THE GROSS RECEIPTS. 

THOSE CASES, LIKE THE PRESENT ONE, INVOLVED NO EXACTION BY THE STATE
OF A LICENSE TO ENGAGE IN INTERSTATE COMMERCE ON THE PAYMENT OF A FLAT
LICENSE TAX OR OTHERWISE.  CF. LELOUP V. PORT OF MOBILE, 127 U.S. 640;
CRUTCHER V. KENTUCKY, 141 U.S. 47; BOWMAN V. CONTINENTAL OIL CO., 256
U.S. 642; COONEY V. MOUNTAIN STATES TEL. CO., 294 U.S. 384; MURDOCK V.
PENNSYLVANIA, 319 U.S. 105, 114.  NOR DID THEY, ANY MORE THAN THE
PRESENT CASE, CONCERN LEGISLATION WHICH EXPRESSED HOSTILITY TO
INTERSTATE COMMERCE BY DISCRIMINATING AGAINST IT.  CF. BEST & CO. V.
MAXWELL, 311 U.S. 454; NIPPERT V. CITY OF RICHMOND, 327 U.S. 416. 
ALTHOUGH ALL OR LIKE BUSINESS OF A LOCAL NATURE WAS SUBJECT TO THE SAME
TAX, THE INTERSTATE BUSINESS WAS GRANTED IMMUNITY.  THE THEORY, AS
EXPRESSED IN PHILADELPHIA & SOUTHERN S.S. CO. V. PENNSYLVANIA, 122 U.S.
326, 336, WAS THAT TAXATION WAS ONE FORM OF REGULATION AND A TAX ON THE
GROSS RECEIPTS FROM INTERSTATE TRANSPORTATION WOULD BE "A REGULATION OF
THE COMMERCE, A RESTRICTION UPON IT, A BURDEN UPON IT.  CLEARLY THIS
COULD NOT BE DONE BY THE STATE WITHOUT INTERFERING WITH THE POWER OF
CONGRESS." 

THE TAX IN THAT CASE WAS A TAX ON THE GROSS RECEIPTS FROM FARES AND
FREIGHT FOR THE TRANSPORTATION OF PERSONS AND GOODS IN INTERSTATE AND
FOREIGN COMMERCE.  IT WAS UNAPPORTIONED.  AS WE SHALL SEE, THE HOLDING
IN THE PHILADELPHIA & SOUTHERN S.S. CO. CASE HAS NOT BEEN IMPAIRED. 
BUT THE PRINCIPLE IT ANNOUNCED - THAT A TAX ON THE GROSS RECEIPTS WAS
FORBIDDEN BECAUSE IT WAS A REGULATION OF INTERSTATE OR FOREIGN COMMERCE
- WAS NOT GIVEN FULL SCOPE.  FOR SOON GROSS RECEIPTS TAXES ON
BUSINESSES ENGAGED IN INTERSTATE COMMERCE (INCLUDING TRANSPORTATION OR
COMMUNICATION) WERE SUSTAINED WHERE THEY WERE NOT DISCRIMINATORY AND
WHERE THEY WERE FAIRLY APPORTIONED TO THE COMMERCE CARRIED ON IN THE
TAXING STATE.  FN2  MAINE V. GRAND TRUNK RY. CO., 142 U.S. 217.  THEIR
VALIDITY WAS ESTABLISHED WHETHER THEY WERE EMPLOYED AS A MEASURE OF THE
VALUE OF A LOCAL FRANCHISE (MAINE V. GRAND TRUNK RY. CO., SUPRA;
WISCONSIN & M. RY. CO. V. POWERS, 191 U.S. 379) OR WERE USED IN LIEU OF
ALL OTHER PROPERTY TAXES TO MEASURE THE VALUE OF THE PROPERTY IN THE
STATE.  UNITED STATES EXPRESS CO. V. MINNESOTA, 223 U.S. 335; CUDAHY
PACKING CO. V. MINNESOTA, 246 U.S. 450; ILLINOIS CENTRAL R. CO. V.
MINNESOTA, 309 U.S. 157. 

THE DISTINCTION BETWEEN AN APPORTIONED GROSS RECEIPTS TAX AND A TAX
ON ALL THE GROSS RECEIPTS OF AN INTERSTATE BUSINESS, SUCH AS WAS
INVOLVED IN PHILADELPHIA & SOUTHERN S.S. CO. V. PENNSYLVANIA, SUPRA,
PP. 335-336, WAS EXPLAINED IN WESTERN LIVE STOCK V. BUREAU OF REVENUE,
303 U.S. 250, 256, WHICH WAS DECIDED IN 1938.  THE COURT STATED THAT
THE LATTER TYPE OF TAX COULD BE IMPOSED OR ADDED TO "WITH EQUAL RIGHT
BY EVERY STATE WHICH THE COMMERCE TOUCHES, MERELY BECAUSE INTERSTATE
COMMERCE IS BEING DONE, SO THAT WITHOUT THE PROTECTION OF THE COMMERCE
CLAUSE IT WOULD BEAR CUMULATIVE BURDENS NOT IMPOSED ON LOCAL
COMMERCE....  THE MULTIPLICATION OF STATE TAXES MEASURED BY THE GROSS
RECEIPTS FROM INTERSTATE TRANSACTIONS WOULD SPELL THE DESTRUCTION OF
INTERSTATE COMMERCE AND RENEW THE BARRIERS TO INTERSTATE TRADE WHICH IT
WAS THE OBJECT OF THE COMMERCE CLAUSE TO REMOVE."  THIS EXPLANATION OF
THE VICE OF THE UNAPPORTIONED GROSS RECEIPTS TAX HAD BEEN EARLIER
SUGGESTED IN CASE OF THE STATE FREIGHT TAX, 15 WALL.  232, 280, AND HAS
BEEN ACCEPTED BY OUR DECISIONS SINCE THE WESTERN LIVE STOCK CASE. 
ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 311; GWIN, WHITE & PRINCE, INC.
V. HENNEFORD, 305 U.S. 434, 438-440; MCGOLDRICK V. BERWIND-WHITE CO.,
309 U.S. 33, 45-46.  IN BOTH ADAMS MFG. CO. V. STOREN, SUPRA, AND GWIN,
WHITE & PRINCE, INC. V. HENNEFORD, SUPRA, UNAPPORTIONED GROSS RECEIPTS
TAXES AS APPLIED TO THE RECEIPTS FROM INTERSTATE SALES WERE HELD
INVALID.  IT WAS SAID THAT THE VICE OF SUCH A TAX WAS THAT INTERSTATE
COMMERCE WOULD BE SUBJECTED "TO THE RISK OF A DOUBLE TAX BURDEN TO
WHICH INTRASTATE COMMERCE IS NOT EXPOSED  ..."  ADAMS MFG. CO. V.
STOREN, SUPRA, P. 311.  OR AS STATED IN GWIN, WHITE & PRINCE, INC. V.
HENNEFORD, SUPRA, P. 439: 

"HERE THE TAX, MEASURED BY THE ENTIRE VOLUME OF THE INTERSTATE
COMMERCE IN WHICH APPELLANT PARTICIPATES, IS NOT APPORTIONED TO ITS
ACTIVITIES WITHIN THE STATE.  IF WASHINGTON IS FREE TO EXACT SUCH A
TAX, OTHER STATES TO WHICH THE COMMERCE EXTENDS MAY, WITH EQUAL RIGHT,
LAY A TAX SIMILARLY MEASURED FOR THE PRIVILEGE OF CONDUCTING WITHIN
THEIR RESPECTIVE TERRITORIAL LIMITS THE ACTIVITIES THERE WHICH
CONTRIBUTE TO THE SERVICE.  THE PRESENT TAX, THOUGH NOMINALLY LOCAL,
THUS IN ITS PRACTICAL OPERATION DISCRIMINATES AGAINST INTERSTATE
COMMERCE, SINCE IT IMPOSES UPON IT, MERELY BECAUSE INTERSTATE COMMERCE
IS BEING DONE, THE RISK OF A MULTIPLE BURDEN TO WHICH LOCAL COMMERCE IS
NOT EXPOSED."    AS WAS LATER STATED IN SOUTHERN PACIFIC CO. V.
GALLAGHER, 306 U.S. 167, 175, AS RESPECTS TAXES ON GROSS RECEIPTS FROM
INTERSTATE TRANSACTIONS OR INTERSTATE TRANSPORTATION, "THE MEASUREMENT
OF A TAX BY GROSS RECEIPTS WHERE IT CANNOT RESULT IN A MULTIPLICATION
OF THE LEVIES IT UPHELD." 

UNDER THAT VIEW THE PHILADELPHIA & SOUTHERN S.S. CO. CASE WOULD BE
DECIDED ONE WAY AND THE PUGET SOUND STEVEDORING CO. CASE THE OTHER.  AS
WE HAVE NOTED, THE TAX IN THE PHILADELPHIA & SOUTHERN S.S. CO. CASE WAS
A GROSS RECEIPTS TAX ON FARES AND FREIGHT FOR THE TRANSPORTATION OF
PERSONS AND GOODS IN INTERSTATE AND FOREIGN COMMERCE.  IT WAS
UNAPPORTIONED.  AND THERE WAS THE RISK OF MULTIPLE TAXATION TO WHICH
LOCAL TRANSPORTATION, THOUGH ALSO TAXED, WAS NOT SUBJECTED.  THE SAME
WAS TRUE OF RATTERMAN V. WESTERN UNION TEL. CO., 127 U.S. 411; WESTERN
UNION TELEGRAPH CO. V. ALABAMA, 132 U.S. 472; AND MEYER V. WELLS, FARGO
& CO., 223 U.S. 298. 

BUT IN THE PUGET SOUND CASE ANY RISK OF MULTIPLE TAXATION WAS
ABSENT.  THE SAME IS TRUE OF THE PRESENT CASE.  FOR IN EACH THE
ACTIVITY OF LOADING AND UNLOADING WAS CONFINED EXCLUSIVELY TO THE STATE
THAT IMPOSED THE TAX.  NO OTHER STATE COULD TAX THE SAME ACTIVITY.  FN3
THE TAX THEREFORE IS IN ITS APPLICATION NOTHING MORE THAN A GROSS
RECEIPTS TAX APPORTIONED TO REACH ONLY INCOME DERIVED FROM ACTIVITIES
WITHIN THE TAXING STATE.  THE GROSS RECEIPTS REFLECT VALUES
ATTRIBUTABLE TO THE BUSINESS OR PROPERTY WHOLLY WITHIN THE TAXING
STATE.  UNDER THE TEST OF OUR RECENT DECISIONS (WESTERN LIVE STOCK V.
BUREAU OF REVENUE, SUPRA; ADAMS MFG. CO. V. STOREN, SUPRA; GWIN, WHITE
& PRINCE, INC. V. HENNEFORD, SUPRA), THE TAX WOULD THEREFORE SEEM TO BE
UNOBJECTIONABLE. 

IT IS TRUE, HOWEVER, THAT TAXES ON GROSS RECEIPTS OF TRANSPORTATION
COMPANIES AND OTHER INTERSTATE ENTERPRISES WERE HELD INVALID IN CASES
PRIOR TO THE PUGET SOUND CASE, EVEN THOUGH ALL OF THE ACTIVITIES WERE
CONFINED TO THE TAXING STATE AND COULD NOT BE TAXED BY ANY OTHER
STATE.  GALVESTON, HARRISBURG & S.A. RY. CO. V. TEXAS, 210 U.S. 217;
NEW JERSEY BELL TEL. CO. V. STATE BOARD, 280 U.S. 338.  CF. FARGO V.
MICHIGAN, 121 U.S. 230.  THE EXPLANATION GIVEN IN THE GALVESTON CASE
WAS THAT A TAX ON THE GROSS RECEIPTS WAS A REGULATION OF COMMERCE, AS
THE PHILADELPHIA & SOUTHERN S.S. CO. CASE HELD.  IT DISTINGUISHED MAINE
V. GRAND TRUNK RY. CO., SUPRA, AND THE OTHER APPORTIONMENT CASES ON THE
GROUND THAT THEY INVOLVED TAXES ON PROPERTY, THE GROSS RECEIPTS BEING
TAKEN AS THE MEASURE OF THE VALUE OF THE PROPERTY.  THE COURT SAID (210
U.S., P. 227): 

"IT APPEARS SUFFICIENTLY, PERHAPS FROM WHAT HAS BEEN SAID, THAT WE
ARE TO LOOK FOR A PRACTICAL RATHER THAN A LOGICAL OR PHILOSOPHICAL
DISTINCTION.  THE STATE MUST BE ALLOWED TO TAX THE PROPERTY AND TO TAX
IT AT ITS ACTUAL VALUE AS A GOING CONCERN.  ON THE OTHER HAND THE STATE
CANNOT TAX THE INTERSTATE BUSINESS.  THE TWO NECESSITIES HARDLY ADMIT
OF AN ABSOLUTE LOGICAL RECONCILIATION.  YET THE DISTINCTION IS NOT
WITHOUT SENSE.  WHEN A LEGISLATURE IS TRYING SIMPLY TO VALUE PROPERTY,
IT IS LESS LIKELY TO ATTEMPT TO OR EFFECT INJURIOUS REGULATION THAN
WHEN IT IS AIMING DIRECTLY AT THE RECEIPTS FROM INTERSTATE COMMERCE.  A
PRACTICAL LINE CAN BE DRAWN BY TAKING THE WHOLE SCHEME OF TAXATION INTO
ACCOUNT.  THAT MUST BE DONE BY THIS COURT AS BEST IT CAN.  NEITHER THE
STATE COURTS NOR THE LEGISLATURES, BY GIVING THE TAX A PARTICULAR NAME
OR BY THE USE OF SOME FORM OF WORDS, CAN TAKE AWAY OUR DUTY TO CONSIDER
ITS NATURE AND EFFECT.  IF IT BEARS UPON COMMERCE AMONG THE STATES SO
DIRECTLY AS TO AMOUNT TO A REGULATION IN A RELATIVELY IMMEDIATE WAY, IT
WILL NOT BE SAVED BY NAME OR FORM." 

THE GALVESTON CASE, LIKE THE PHILADELPHIA & SOUTHERN S.S. CO. CASE,
INVOLVED A TAX APPLICABLE TO TRANSPORTATION COMPANIES ALONE.  FN4
WHATEVER MAY BE SAID FOR THE PROPOSITION THAT A GROSS RECEIPTS TAX,
APPLICABLE ONLY TO TRANSPORTATION COMPANIES, MAY READILY BECOME THE
INSTRUMENT FOR IMPEDING OR DESTROYING INTERSTATE COMMERCE, THAT
CONSIDERATION HAS NO RELEVANCY HERE.  FOR IN THE PRESENT CASE, AS IN
THE PUGET SOUND CASE, ALL BUSINESSES ARE TAXED ALIKE.  THERE IS
EQUALITY THROUGHOUT; AND INTERSTATE COMMERCE IS TAXED NO HEAVIER THAN
LOCAL BUSINESS.  POLITICAL RESTRAINTS, PERHAPS LACKING WHEN A
PARTICULAR TYPE OF BUSINESS IS SINGLED OUT FOR SPECIAL TAXATION, WOULD
NOT BE ABSENT HERE. 

MOREOVER, THE DIFFERENCE BETWEEN A TAX ON PROPERTY MEASURED BY GROSS
RECEIPTS AND A TAX ON THE GROSS RECEIPTS DOES NOT APPEAR SIGNIFICANT IN
CONSTITUTIONAL TERMS WHEN THE ISSUE IS ONE OF UNDUE BURDEN ON
INTERSTATE COMMERCE.  EITHER MIGHT BE AN INSTRUMENT TO THAT END.  THE
APPORTIONED GROSS RECEIPTS TAX IN MAINE V. GRAND TRUNK RY. CO., SUPRA,
WAS IN TERMS "AN ANNUAL EXCISE TAX FOR THE PRIVILEGE OF EXERCISING" THE
CORPORATION'S FRANCHISES IN THE STATE.  142 U.S. P. 219.  THE COURT
STATED, P. 228, "A RESORT TO THOSE RECEIPTS WAS SIMPLY TO ASCERTAIN THE
VALUE OF THE BUSINESS DONE BY THE CORPORATION, AND THUS OBTAIN A GUIDE
TO A REASONABLE CONCLUSION AS TO THE AMOUNT OF THE EXCISE TAX WHICH
SHOULD BE LEVIED  ..."  AS MUCH CAN BE SAID OF THE PRESENT CASE AND OF
THE PUGET SOUND CASE.  WHILE THE TAX IS IN TERMS ONE ON THE PRIVILEGE
OF DOING BUSINESS, RESORT IS MADE TO THE GROSS RECEIPTS MERELY TO
ASCERTAIN THE VALUE OF THE BUSINESS.  NO VICE OF EXTRATERRITORIALITY OR
MULTIPLE TAXATION IS INVOLVED.  THE VALUE TAXED IS ATTRIBUTABLE TO
BUSINESS WITHIN THE TAXING STATE AND MAY NOT BE REACHED BY ANY OTHER
STATE.  THAT VALUE IS, OF COURSE, AUGMENTED BY THE INTERSTATE CHARACTER
OF THE BUSINESS.  BUT THE SAME IS TRUE IN ANY APPORTIONMENT CASE. 
GALVESTON, HARRISBURG & S.A. RY. CO. V. TEXAS, SUPRA, P. 225; CUDAHY
PACKING CO. V. MINNESOTA, SUPRA, PP. 455-456. 

RESPONDENTS PAY OTHER TAXES TO NEW YORK CITY, INCLUDING THE USUAL
PROPERTY TAXES.  BUT SO LONG AS A TAX DOES NOT DISCRIMINATE AGAINST
INTERSTATE COMMERCE AND IS FAIRLY APPORTIONED TO THE ACTIVITIES IN THE
TAXING STATE, TAXING THE BUSINESS TWICE IS FOR CONSTITUTIONAL PURPOSES
NO DIFFERENT THAN DOUBLING A SINGLE TAX.  IF THE WHOLE SCHEME OF
TAXATION ADOPTED BY A PARTICULAR STATE WERE TAKEN INTO ACCOUNT, IT
MIGHT BE THAT A CASE OF DISCRIMINATION AGAINST INTERSTATE COMMERCE
COULD BE MADE OUT.  BUT THERE IS NO SUGGESTION THAT THIS IS SUCH A
CASE.  NOR CAN WE SAY THAT THE SYSTEM WHICH HAS BEEN ADOPTED HERE BIDS
FAIR TO BE MORE HARMFUL TO INTERSTATE COMMERCE THAN A SYSTEM DESIGNED
TO RAISE THE SAME AMOUNT OF REVENUE BY THE USE OF A GROSS RECEIPTS TAX
IN LIEU OF PROPERTY TAXES. 

MOREOVER, AS NOTED IN GWIN, WHITE & PRINCE, INC. V. HENNEFORD, SUPRA,
P. 438, AND IN ADAMS MFG. CO. V. STOREN, SUPRA, PP. 312-313, THERE HAVE
BEEN OTHER CASES SUSTAINING A GROSS RECEIPTS TAX ON INTERSTATE
ENTERPRISES WHERE THE GROSS RECEIPTS TAX FAIRLY MEASURED THE VALUE OF A
LOCAL PRIVILEGE OR FRANCHISE AND ALL RISK OF MULTIPLE TAXATION WAS
ABSENT.  FICKLEN V. SHELBY COUNTY TAXING DIST., 145 U.S. 1, UPHELD A
STATE LICENSE TAX IMPOSED UPON THE PRIVILEGE OF DOING A BROKERAGE
BUSINESS WITHIN THE STATE AND MEASURED BY THE GROSS RECEIPTS FROM SALES
OF MERCHANDISE SHIPPED INTO THE STATE FOR DELIVERY AFTER SALES WERE
MADE.  AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459, UPHELD A MUNICIPAL
LICENSE TAX ON THE GROSS RECEIPTS OF A MANUFACTURER WHO WAS PRODUCING
GOODS FOR INTERSTATE COMMERCE.  THE TAX WAS SUSTAINED AS AN EXCISE UPON
THE CONDUCT OF A MANUFACTURING ENTERPRISE.  THOSE TAXES, LIKE PROPERTY
TAXES OR TAXES ON ACTIVITIES CONFINED SOLELY TO THE TAXING STATE (NEW
YORK, LAKE ERIE & W.R. CO. V. PENNSYLVANIA, 158 U.S. 431; UTAH POWER &
LIGHT CO. V. PFOST, 286 U.S. 165; COVERDALE V. ARKANSAS-LOUISIANA PIPE
LINE CO., 303 U.S. 604), HAVE NO CUMULATIVE EFFECT CAUSED BY THE
INTERSTATE CHARACTER OF THE BUSINESS.  THEY ARE APPORTIONED TO THE
ACTIVITIES TAXED, ALL OF WHICH ARE INTRASTATE.  PLAINLY THE LOADING AND
UNLOADING INVOLVED IN THE PRESENT CASE ARE ACTIVITIES AS LOCAL IN
CHARACTER AS THE BROKERAGE ACTIVITIES IN THE FICKLEN CASE OR THE
MANUFACTURING BUSINESS IN THE AMERICAN MFG. CO. CASE.  ONE HAS AS CLOSE
AND AS IMMEDIATE A RELATIONSHIP TO INTERSTATE COMMERCE AS THE OTHER. 
CF. UNITED STATES V. DARBY, 312 U.S. 100.  IF ONE GIVES RISE TO A
TAXABLE EVENT FOR WHICH THE STATE MAY EXACT A PORTION OF THE GROSS
RECEIPTS, IT IS DIFFICULT TO SEE WHY THE OTHER DOES NOT.  THE PRACTICAL
EFFECT ON INTERSTATE COMMERCE IS THE SAME IN EACH. 

IN MCGOLDRICK V. BERWIND-WHITE CO., SUPRA, P. 52, WE HELD THAT A
SALES TAX ON THE PURCHASE OF PROPERTY AT THE END OF ITS INTERSTATE
JOURNEY WAS NOT TO BE DISTINGUISHED FROM A TAX ON THE PROPERTY ITSELF. 
FOR TAXATION OF THE SALE WAS MERELY TAXATION OF THE EXERCISE OF ONE OF
THE CONSTITUENT ELEMENTS OF THE PROPERTY.  UNLESS FORMAL DOCTRINE IS TO
BE RESTORED TO THIS FIELD, THE LABEL WHICH THE TAX BEARS SHOULD NOT BE
CONTROLLING; AND THE TAX SHOULD BE SUSTAINED UNLESS IT EVINCES
HOSTILITY TO INTERSTATE COMMERCE OR IN PRACTICAL OPERATION OBSTRUCTS OR
IMPEDES IT. EITHER RESULT MAY OBTAIN WHETHER THE TAX BE CALLED A
PROPERTY TAX OR A GROSS RECEIPTS TAX.  AS MCGOLDRICK V. BERWIND-WHITE
CO., SUPRA, P. 48, STATES: 

"CERTAIN TYPES OF TAX MAY, IF PERMITTED AT ALL, SO READILY BE MADE
THE INSTRUMENT OF IMPEDING OR DESTROYING INTERSTATE COMMERCE AS PLAINLY
TO CALL FOR THEIR CONDEMNATION AS FORBIDDEN REGULATIONS.  SUCH ARE THE
TAXES ALREADY NOTED WHICH ARE AIMED AT OR DISCRIMINATE AGAINST THE
COMMERCE OR IMPOSE A LEVY FOR THE PRIVILEGE OF DOING IT, OR TAX
INTERSTATE TRANSPORTATION OR COMMUNICATION OR THEIR GROSS EARNINGS, OR
LEVY AN EXACTION ON MERCHANDISE IN THE COURSE OF ITS INTERSTATE
JOURNEY.  EACH IMPOSES A BURDEN WHICH INTRASTATE COMMERCE DOES NOT
BEAR, AND MERELY BECAUSE INTERSTATE COMMERCE IS BEING DONE PLACES IT AT
A DISADVANTAGE IN COMPARISON WITH INTRASTATE BUSINESS OR PROPERTY IN
CIRCUMSTANCES SUCH THAT IF THE ASSERTED POWER TO TAX WERE SUSTAINED,
THE STATES WOULD BE LEFT FREE TO EXERT IT TO THE DETRIMENT OF THE
NATIONAL COMMERCE." 

MEASURED BY THAT TEST, THE PRESENT TAX IS NOT INVALID.  "EVEN
INTERSTATE BUSINESS MUST PAY ITS WAY ..."  POSTAL TELEGRAPH-CABLE CO.
V. RICHMOND, 249 U.S. 252, 259.  A NON-DISCRIMINATORY GROSS RECEIPTS
TAX, APPORTIONED TO LOCAL ACTIVITY IN THE TAXING STATE, IS TO BE JUDGED
BY ITS PRACTICAL EFFECT.  AS WE STATED IN WISCONSIN V. J.C. PENNEY CO.,
311 U.S. 435, 444: 

"THE CONSTITUTION IS NOT A FORMULARY.  IT DOES NOT DEMAND OF STATES
STRICT OBSERVANCE OF RIGID CATEGORIES NOR PRECISION OF TECHNICAL
PHRASING IN THEIR EXERCISE OF THE MOST BASIC POWER OF GOVERNMENT, THAT
OF TAXATION.  FOR CONSTITUTIONAL PURPOSES THE DECISIVE ISSUE TURNS ON
THE OPERATING INCIDENCE OF A CHALLENGED TAX.  A STATE IS FREE TO PURSUE
ITS OWN FISCAL POLICIES, UNEMBARRASSED BY THE CONSTITUTION, IF BY THE
PRACTICAL OPERATION OF A TAX THE STATE HAS EXERTED ITS POWER IN
RELATION TO OPPORTUNITIES WHICH IT HAS GIVEN, TO PROTECTION WHICH IT
HAS AFFORDED, TO BENEFITS WHICH IT HAS CONFERRED BY THE FACT OF BEING
AN ORDERLY, CIVILIZED SOCIETY." 

ALL LOCAL TAXES ON INTERSTATE BUSINESSES AFFECT TO SOME DEGREE THE
COMMERCE AND INCREASE THE COST OF DOING IT.  MATTERS OF FORM SHOULD NOT
BE DECISIVE IF THE TAX THREATENS NO HARM TO INTERSTATE COMMERCE. 

PRIOR TO MCGOLDRICK V. BERWIND-WHITE CO., SUPRA, IT HAD LONG BEEN
SAID THAT "INTERSTATE COMMERCE CANNOT BE TAXED AT ALL, EVEN THOUGH THE
SAME AMOUNT OF TAX SHOULD BE LAID ON DOMESTIC COMMERCE, OR THAT WHICH
IS CARRIED ON SOLELY WITHIN THE STATE."  ROBBINS V. SHELBY COUNTY
TAXING DIST., 120 U.S. 489, 497.  THAT WAS THE PHILOSOPHY OF THE
PHILADELPHIA & SOUTHERN S.S. CO. CASE.  AND SEE FARGO V. MICHIGAN,
SUPRA, PP. 246-247.  BUT MCGOLDRICK V. BERWIND-WHITE CO., SUPRA, DID
NOT ADHERE TO THAT FORMAL DOCTRINE.  IT FOLLOWED WILOIL CORP. V.
PENNSYLVANIA, 294 U.S. 169, AND UPHELD A "NON-DISCRIMINATORY TAX ON THE
SALE TO A BUYER WITHIN THE TAXING STATE OF A COMMODITY SHIPPED
INTERSTATE IN PERFORMANCE OF THE SALES CONTRACT, NOT UPON THE GROUND
THAT THE DELIVERY WAS NOT A PART OF INTERSTATE COMMERCE  ...  BUT
BECAUSE THE TAX WAS NOT A PROHIBITED REGULATION OF, OR BURDEN ON, THAT
COMMERCE."  ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC SERVICE
CO., 314 U.S. 498, 505.  THE TEST ADOPTED WAS WHETHER THE TAX ON THE
LOCAL ACTIVITY AS A PRACTICAL MATTER WAS BEING USED TO PLACE INTERSTATE
COMMERCE AT A COMPETITIVE DISADVANTAGE OR OBSTRUCT OR IMPEDE IT.  THAT
SHOULD BE THE APPROACH HERE; "THE LOGIC OF WORDS SHOULD YIELD TO THE
LOGIC OF REALITIES."  MR. JUSTICE BRANDEIS DISSENTING, DI SANTO V.
PENNSYLVANIA, 273 U.S. 34, 43.  THE FAILURE OF THE COURT TO ADHERE TO
THE PHILOSOPHY OF OUR RECENT CASES CORROBORATES THE IMPRESSION WHICH
SOME OF US HAD THAT FREEMAN V. HEWIT, 329 U.S. 249, MARKED THE END OF
ONE CYCLE UNDER THE COMMERCE CLAUSE AND THE BEGINNING OF ANOTHER. 

SECOND.  I THINK THE TAX IS UNCONSTITUTIONAL INSOFAR AS IT REACHES
THE GROSS RECEIPTS FROM LOADING AND UNLOADING VESSELS ENGAGED IN
FOREIGN COMMERCE.  SUCH A TAX IS REPUGNANT TO ARTICLE I, SEC. 10,
CLAUSE 2 OF THE CONSTITUTION, WHICH PROVIDES THAT "NO STATE SHALL,
WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY IMPOSTS OR DUTIES ON
IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR
EXECUTING IT'S INSPECTION LAWS  ..." 

LOADING AND UNLOADING ARE A PART OF "THE EXPORTING PROCESS" WHICH THE
IMPORT-EXPORT CLAUSE PROTECTS FROM STATE TAXATION.  SEE THAMES & MERSEY
INS. CO. V. UNITED STATES, 237 U.S. 19, 27.  ACTIVITY WHICH IS A "STEP
IN EXPORTATION" HAS THAT IMMUNITY.  SPALDING & BROS. V. EDWARDS, 262
U.S. 66, 68.  AS THE COURT SAYS, LOADING AND UNLOADING CARGO ARE "A
CONTINUATION OF THE TRANSPORTATION."  INDEED, THE COMMENCEMENT OF
EXPORTATION WOULD OCCUR NO LATER.  SEE RICHFIELD OIL CORP. V. STATE
BOARD, 329 U.S. 69.  AND THE GROSS RECEIPTS TAX IS AN IMPOST ON AN
EXPORT WITHIN THE MEANING OF THE CLAUSE, SINCE THE INCIDENT "WHICH GAVE
RISE TO THE ACCRUAL OF THE TAX WAS A STEP IN THE EXPORT PROCESS." 
RICHFIELD OIL CORP. V. STATE BOARD, SUPRA, P. 84.    AS WE POINTED OUT
IN THAT CASE, THE COMMERCE CLAUSE AND THE IMPORT-EXPORT CLAUSE "THOUGH
COMPLEMENTARY, SERVE DIFFERENT ENDS."  329 U.S. P. 76.  SINCE THE
COMMERCE CLAUSE DOES NOT EXPRESSLY FORBID ANY TAX, THE COURT HAS BEEN
FREE TO BALANCE LOCAL AND NATIONAL INTERESTS.  TAXES DESIGNED TO MAKE
INTERSTATE COMMERCE BEAR A FAIR SHARE OF THE COST OF LOCAL GOVERNMENT
FROM WHICH IT RECEIVES BENEFITS HAVE BEEN UPHELD; TAXES WHICH
DISCRIMINATE AGAINST INTERSTATE COMMERCE, WHICH IMPOSE A LEVY FOR THE
PRIVILEGE OF DOING IT, OR WHICH PLACE AN UNDUE BURDEN ON IT HAVE BEEN
INVALIDATED.  BUT THE IMPORT-EXPORT CLAUSE IS WRITTEN IN TERMS WHICH
ADMIT OF NO EXCEPTION BUT THE SINGLE ONE IT CONTAINS.  ACCORDINGLY A
STATE TAX MIGHT SURVIVE THE TESTS OF VALIDITY UNDER THE COMMERCE CLAUSE
AND FAIL TO SURVIVE THE IMPORT-EXPORT CLAUSE.  FOR ME THE PRESENT TAX
IS A GOOD EXAMPLE. 

FN1  PHILADELPHIA & SOUTHERN S.S. CO. V. PENNSYLVANIA, 122 U.S. 326;
RATTERMAN V. WESTERN UNION TEL. CO., 127 U.S. 411; WESTERN UNION TEL.
CO. V. ALABAMA, 132 U.S. 472; GALVESTON, HARRISBURG & S.A. RY. CO. V.
TEXAS, 210 U.S. 217; MEYER V. WELLS, FARGO & CO., 223 U.S. 298. 

FN2  IN RAILROAD CO. V. MARYLAND, 21 WALL.  456, THE PAYMENT OF A
PERCENTAGE OF GROSS RECEIPTS WAS UPHELD AS A CONDITION OF THE CORPORATE
FRANCHISE. 

FN3  THE COURT SUGGESTS THAT THE FACT THAT SIMILAR STEVEDORING
ACTIVITY WILL BE REQUIRED AT THE DESTINATION CREATES A RISK OF MULTIPLE
TAXATION, SINCE THE STATE OF DESTINATION WOULD BE AS FREE TO TAX THE
UNLOADING AS NEW YORK TO TAX THE LOADING.  THIS IS ONLY MULTIPLE IN THE
SENSE THAT EACH STATE TAXES WHAT OCCURS WITHIN ITS BORDERS; THE TWO
TAXES WOULD NOT BE ON THE SAME ACTIVITY.  IT IS NO MORE RELEVANT THAT
STEVEDORING IS INVOLVED IN BOTH CASES, THAN IS THE FACT THAT TWO STATES
MAY IMPOSE PROPERTY TAXES ON TERMINALS OR TRACKAGE WITHIN THEIR
RESPECTIVE BORDERS. 

FN4  MOREOVER, THE TAX IN THE PHILADELPHIA & SOUTHERN S.S. CO. CASE
WAS RESTRICTED NOT ONLY TO TRANSPORTATION COMPANIES BUT ALSO TO
RECEIPTS FROM TRANSPORTATION.  THOSE FACTS WERE EMPHASIZED BY MR.
JUSTICE BRADLEY (122 U.S. PP. 344-345):  "CAN THE TAX IN THIS CASE BE
REGARDED AS AN INCOME TAX?  AND, IF IT CAN, DOES THAT MAKE ANY
DIFFERENCE AS TO ITS CONSTITUTIONALITY?  WE DO NOT THINK THAT IT CAN
PROPERLY BE REGARDED AS AN INCOME TAX.  IT IS NOT A GENERAL TAX ON THE
INCOMES OF ALL THE INHABITANTS OF THE STATE; BUT A SPECIAL TAX ON
TRANSPORTATION COMPANIES.  CONCEDING, HOWEVER, THAT AN INCOME TAX MAY
BE IMPOSED ON CERTAIN CLASSES OF THE COMMUNITY, DISTINGUISHED BY THE
CHARACTER OF THEIR OCCUPATIONS; THIS IS NOT AN INCOME TAX ON THE CLASS
TO WHICH IT REFERS, BUT A TAX ON THEIR RECEIPTS FOR TRANSPORTATION
ONLY.  MANY OF THE COMPANIES INCLUDED IN IT MAY, AND UNDOUBTEDLY DO,
HAVE INCOMES FROM OTHER SOURCES, SUCH AS RENTS OF HOUSES, WHARVES,
STORES, AND WATER-POWER, AND INTEREST ON MONEYED INVESTMENTS.  AS A TAX
ON TRANSPORTATION, WE HAVE ALREADY SEEN FROM THE QUOTATIONS FROM THE
STATE FREIGHT TAX CASE THAT IT CANNOT BE SUPPORTED WHERE THAT
TRANSPORTATION IS AN INGREDIENT OF INTERSTATE OR FOREIGN COMMERCE, EVEN
THOUGH THE LAW IMPOSING THE TAX BE EXPRESSED IN SUCH GENERAL TERMS AS
TO INCLUDE RECEIPTS FROM TRANSPORTATION WHICH ARE PROPERLY TAXABLE.  IT
IS UNNECESSARY, THEREFORE, TO DISCUSS THE QUESTION WHICH WOULD ARISE IF
THE TAX WERE PROPERLY A TAX ON INCOME.  IT IS CLEARLY NOT SUCH, BUT A
TAX ON TRANSPORTATION ONLY."  CF. UNITED STATES GLUE CO. V. OAK CREEK,
247 U.S. 321, WHICH SUSTAINED AS AGAINST AN INTERSTATE ENTERPRISE A NET
INCOME TAX OF GENERAL APPLICATION. 

MR. JUSTICE MURPHY JOINS IN THIS DISSENT EXCEPT AS TO THE SECOND
PART, AS TO WHICH HE IS OF THE OPINION THAT THE TAX IN RELATION TO THE
GROSS RECEIPTS FROM LOADING AND UNLOADING VESSELS ENGAGED IN FOREIGN
COMMERCE IS CONSTITUTIONAL. 
..END :






















AMERICAN STEVEDORES V. PORELLO, 330 U.S. 446 


ARGUED DECEMBER 11, 12, 1946.  - DECIDED MARCH 10, 1947.  - 153 F.2D
605, AFFIRMED IN PART AND REVERSED IN PART. 


1.  THE PUBLIC VESSELS ACT, 43 STAT. 1112, WHICH PROVIDES THAT A
"LIBEL IN PERSONAM IN ADMIRALTY MAY BE BROUGHT AGAINST THE UNITED
STATES  ...  FOR DAMAGES CAUSED BY A PUBLIC VESSEL OF THE UNITED
STATES," AUTHORIZES A LIBEL AGAINST THE UNITED STATES TO RECOVER
DAMAGES FOR DEATH OR PERSONAL INJURIES CAUSED BY A PUBLIC VESSEL OF THE
UNITED STATES.  PP. 450-454, 458-460. 

2.  MERE ACCEPTANCE BY AN INJURED LONGSHOREMAN OF COMPENSATION FROM
HIS EMPLOYER PURSUANT TO THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, 33 U.S.C. SECS. 901-950, WITHOUT AN AWARD BY A DEPUTY
COMMISSIONER UNDER SEC. 19, DOES NOT PRECLUDE THE LONGSHOREMAN FROM
THEREAFTER ELECTING TO SUE A THIRD-PARTY TORTFEASOR FOR INJURIES
SUFFERED WHILE WORKING ON A VESSEL.  PP. 454-456. 

3.  A STEVEDORING CONTRACT BEING A MARITIME CONTRACT, AN ADMIRALTY
COURT HAS JURISDICTION TO GRANT INDEMNITY UNDER AN INDEMNITY PROVISION
THEREOF.  P. 456. 

4.  A DISTRICT COURT AWARDED INDEMNITY TO THE EXTENT OF HALF OF THE
DAMAGES UNDER AN AMBIGUOUS INDEMNITY PROVISION OF A STEVEDORING
CONTRACT WITHOUT ADMITTING EVIDENCE AS TO THE INTENTION OF THE PARTIES
OR MAKING ANY CLEAR FINDING AS TO THE MEANING OF THE CONTRACT.  ON
APPEAL, THE CIRCUIT COURT OF APPEALS HELD THAT THE STEVEDORING
CONTRACTOR SHOULD INDEMNIFY THE OWNER COMPLETELY.  ON REVIEW IN THIS
COURT, THE CASE IS REMANDED TO THE DISTRICT COURT FOR DETERMINATION OF
THE MEANING OF THE CONTRACT, SINCE THE DISTRICT COURT MAY HAVE THE
BENEFIT OF SUCH EVIDENCE AS THERE IS UPON THE INTENTION OF THE
PARTIES.  PP. 457-458. 

AMERICAN STEVEDORES, INC. V. PORELLO ET AL. 

NO. 69.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT* . 

*TOGETHER WITH NO. 514, UNITED STATES V. LAURO, ADMINISTRATRIX, ON
CERTIFICATE FROM THE SAME COURT. 

NO. 69.  A LONGSHOREMAN INJURED WHILE WORKING ON A PUBLIC VESSEL OF
THE UNITED STATES AS AN EMPLOYEE OF A CORPORATION ENGAGED IN LOADING
THE VESSEL UNDER A STEVEDORING CONTRACT WITH THE UNITED STATES FILED A
LIBEL TO RECOVER DAMAGES FROM THE UNITED STATES UNDER THE PUBLIC
VESSELS ACT, 46 U.S.C. SEC. 781 ET SEQ. THE DISTRICT COURT OVERRULED
THE GOVERNMENT'S EXCEPTIONS TO THE LIBEL.  53 F.SUPP.  569.  THE
GOVERNMENT THEN IMPLEADED THE STEVEDORING CONTRACTOR CHARGING IT WITH
FAULT AND SETTING FORTH AN INDEMNITY PROVISION OF THE CONTRACT.  THE
CONTRACTOR ANSWERED THE LIBEL, DENYING FAULT AND ASSERTING AS AN
AFFIRMATIVE DEFENSE THAT, BY ACCEPTING COMPENSATION PAYMENTS UNDER THE
LONGSHOREMEN'S AND HARBOR WORKERS' ACT, 33 U.S.C. SECS. 901-950, THE
LONGSHOREMAN HAD LOST HIS RIGHT TO SUE A THIRD-PARTY TORTFEASOR.  THE
DISTRICT COURT HELD THAT THE LONGSHOREMAN WAS NOT BARRED FROM
MAINTAINING THE ACTION, AND THAT BOTH THE UNITED STATES AND THE
CONTRACTOR WERE NEGLIGENT, AWARDED DAMAGES FROM THE UNITED STATES, AND
AWARDED THE UNITED STATES CONTRIBUTION FROM THE CONTRACTOR AS A JOINT
TORTFEASOR TO THE EXTENT OF HALF THE DAMAGES LESS THE COMPENSATION
PAYMENTS RECEIVED BY THE LONGSHOREMAN.  ON CROSS APPEALS BY THE UNITED
STATES AND THE CONTRACTOR, THE CIRCUIT COURT OF APPEALS HELD THAT THE
CONTRACTOR WAS BOUND BY THE INDEMNITY PROVISION OF THE STEVEDORING
CONTRACT TO MAKE THE UNITED STATES COMPLETELY WHOLE AND AFFIRMED THE
DECREE WITH THAT MODIFICATION.  153 F.2D 605.  THIS COURT GRANTED
CERTIORARI.  328 U.S. 827.  AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED, P. 458. 

NO. 514.  A DISTRICT COURT AWARDED DAMAGES AGAINST THE UNITED STATES
UNDER THE PUBLIC VESSELS ACT, 46 U.S.C. SEC. 781 ET SEQ., FOR THE DEATH
OF A LONGSHOREMAN RESULTING FROM INJURIES SUSTAINED WHILE WORKING
ABOARD A VESSEL OWNED BY THE UNITED STATES.  63 F.SUPP.  538.  ON
APPEAL, THE CIRCUIT COURT OF APPEALS, 157 F.2D 416, CERTIFIED TO THIS
COURT A QUESTION WHICH IS ANSWERED AS FOLLOWS: "THE WORD 'DAMAGES' AS
USED IN 46 U.S.C. SEC. 781 INCLUDES DAMAGES UNDER SECS. 130-134 OF THE
DECEDENT ESTATE LAW OF THE STATE OF NEW YORK RECOVERABLE BY A PERSONAL
REPRESENTATIVE BECAUSE OF THE DEATH OF A HUMAN BEING."  P. 460. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PORELLO, A LONGSHOREMAN, WAS INJURED ON SEPT. 23, 1942, WHILE WORKING
IN THE HOLD OF THE U.S.S. THOMAS STONE, A PUBLIC VESSEL OF THE UNITED
STATES.  HIS EMPLOYER, AMERICAN STEVEDORES, INC. (CALLED AMERICAN
HEREINAFTER), WAS ENGAGED IN LOADING THE VESSEL UNDER A STEVEDORING
CONTRACT WITH THE UNITED STATES.  WITHIN TWO WEEKS OF THE ACCIDENT
WHICH CAUSED THE INJURIES, AMERICAN'S INSURANCE CARRIER, IN COMPLIANCE
WITH SEC. 14 OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT,  FN1  33 U.S.C. SECS. 901-950, AND WITHOUT THE COMPULSION OF AN
AWARD OF COMPENSATION BY A DEPUTY COMMISSIONER UNDER SEC. 19, BEGAN
COMPENSATION PAYMENTS TO PORELLO, WHO NEGOTIATED THE CHECKS HE
RECEIVED.  IN MARCH OF 1943 PORELLO GAVE NOTICE IN ACCORDANCE WITH SEC.
33(A) OF ELECTION TO SUE THE UNITED STATES AS A THIRD-PARTY TORTFEASOR
RATHER THAN TO RECEIVE COMPENSATION.  IN THE SAME MONTH HE FILED A
LIBEL, AMENDED IN NOVEMBER, 1943, TO RECOVER DAMAGES FROM THE UNITED
STATES UNDER THE PUBLIC VESSELS ACT OF 1925,  FN2  46 U.S.C. SEC. 781
ET SEQ., FOR THE INJURIES TO HIS PERSON SUSTAINED IN THE ACCIDENT. 
EXCEPTIONS TO THE LIBEL BEING OVERRULED, THE UNITED STATES ANSWERED,
DENYING FAULT ON ITS PART AND CLAIMING SOVEREIGN IMMUNITY FROM SUIT. 
LATER, BY A PETITION CHARGING AMERICAN WITH FAULT AND SETTING FORTH AN
INDEMNITY PROVISION OF THE STEVEDORING CONTRACT, THE UNITED STATES
IMPLEADED AMERICAN.  FN3  AMERICAN THEN ANSWERED THE LIBEL, DENYING
FAULT AND ASSERTING AS AN AFFIRMATIVE DEFENSE THAT, BY ACCEPTING
COMPENSATION PAYMENTS, PORELLO HAD LOST HIS RIGHT TO SUE A THIRD-PARTY
TORTFEASOR. 

THE DISTRICT COURT HELD THAT PORELLO WAS NOT BARRED FROM MAINTAINING
THE ACTION.  AT TRIAL IT APPEARED THAT A BEAM LYING ATHWART A HATCH HAD
FALLEN INTO THE HOLD AND STRUCK PORELLO, CAUSING THE INJURIES
COMPLAINED OF.  THE COURT HELD THAT THE UNITED STATES WAS NEGLIGENT IN
NOT PROVIDING A LOCKING DEVICE ON THE END OF THE BEAM, AND HELD THAT
AMERICAN WAS NEGLIGENT THROUGH ITS FOREMAN, WHOSE ORDERS TO THE
OPERATOR OF A CARGO BOOM CAUSED THE BEAM TO BE DISLODGED.  PORELLO WAS
AWARDED DAMAGES FROM THE UNITED STATES, THE UNITED STATES TO RECEIVE
CONTRIBUTION FROM AMERICAN AS A JOINT TORTFEASOR TO THE EXTENT OF HALF
THE DAMAGES LESS THE COMPENSATION PAYMENTS RECEIVED BY PORELLO.  ON
CROSS APPEALS BY THE UNITED STATES AND AMERICAN THE CIRCUIT COURT OF
APPEALS HELD THAT AMERICAN WAS BOUND BY THE INDEMNITY PROVISION OF THE
STEVEDORING CONTRACT TO MAKE THE UNITED STATES COMPLETELY WHOLE.  WITH
THAT MODIFICATION IT AFFIRMED THE DECREE BELOW.  153 F.2D 605.  THE
IMPORTANT ISSUE IN THIS PROCEEDING IS WHETHER THE PUBLIC VESSELS ACT
MAKES THE UNITED STATES LIABLE FOR DAMAGES ON ACCOUNT OF PERSONAL
INJURIES.  THE CIRCUIT COURT OF APPEALS THOUGHT THAT THIS QUESTION WAS
DECIDED BY THE CANADIAN AVIATOR CASE,  FN4  BUT SINCE THE ISSUE WAS NOT
SQUARELY POSED IN THAT CASE WE GRANTED CERTIORARI IN ORDER TO DETERMINE
IT AT THIS TIME.  328 U.S. 827. 

THE PUBLIC VESSELS ACT PROVIDES THAT A "LIBEL IN PERSONAM IN
ADMIRALTY MAY BE BROUGHT AGAINST THE UNITED STATES  ...  FOR DAMAGES
CAUSED BY A PUBLIC VESSEL OF THE UNITED STATES  ..."  FN5 PETITIONER
ARGUES THAT THE ACT ONLY PROVIDES A REMEDY FOR DAMAGE TO PROPERTY. 
"DAMAGES," HOWEVER, HAVE HISTORICALLY BEEN AWARDED BOTH FOR INJURY TO
PROPERTY AND INJURY TO THE PERSON - A FACT TOO WELL-KNOWN TO HAVE BEEN
OVERLOOKED BY THE CONGRESS IN ENACTING THIS STATUTE.  FN6  NOR IS IT
EASY TO CONCEIVE ANY REASON, ABSENT INTENT TO THE CONTRARY, NOT TO HAVE
INSERTED THE WORD "PROPERTY" IN THE STATUTE, AN OBVIOUS METHOD OF
IMPOSING THE LIMITATION FOR WHICH THE PETITIONER HERE CONTENDS. 
PETITIONER NONETHELESS ARGUES THAT THE LEGISLATIVE HISTORY OF THE
STATUTE CONCLUSIVELY SHOWS THAT THE CONGRESSIONAL INTENT WAS TO LIMIT
REDRESS TO PROPERTY DAMAGE. 

THE HISTORY OF THE ACT MAY BE BRIEFLY DETAILED.  STARTING IN 1920
VARIOUS BILLS WERE INTRODUCED WHICH PROVIDED FOR LIABILITY OF THE
GOVERNMENT TO SUIT FOR DAMAGES CAUSED BY ITS VESSELS.  FN7 WE NEED ONLY
CONSIDER, HOWEVER, THE BILLS THAT WERE PENDING IN THE 68TH CONGRESS BY
WHICH THE PRESENT ACT WAS PASSED:  H.R. 6989, H.R. 9075 AND H.R. 9535. 
THE FIRST PROVIDED FOR SUITS AGAINST THE UNITED STATES "FOR DAMAGES
CAUSED BY COLLISION BY A PUBLIC VESSEL."  THE SECOND, DESIGNED AS AN
AMENDMENT TO THE SUITS IN ADMIRALTY ACT, AND SUPPORTED BY THE MARITIME
LAW ASSOCIATION OF THE UNITED STATES,  FN8  WOULD HAVE AMENDED THAT ACT
SO THAT IT WOULD NOT BE LIMITED TO VESSELS OPERATED BY THE GOVERNMENT
AS MERCHANT VESSELS, AND WOULD THUS HAVE MADE THE UNITED STATES
UNQUESTIONABLY LIABLE TO SUIT FOR PERSONAL INJURIES CAUSED BY PUBLIC
VESSELS.  FN9  THIS BILL NEVER REACHED THE FLOOR OF CONGRESS.  THE
THIRD BILL, H.R. 9535, WAS ENACTED AND BECAME THE PRESENT PUBLIC
VESSELS ACT.  ALTHOUGH DESIGNED AS "A SUBSTITUTE FOR H.R. 6989,"  FN10
IT OMITTED THE WORDS "BY COLLISION" WHICH WOULD HAVE LIMITED THE
LIABILITY OF THE UNITED STATES TO DAMAGES RESULTING FROM COLLISIONS BY
PUBLIC VESSELS.  THE ONLY DISCUSSION OF ANY SIGNIFICANCE TO THE PRESENT
INQUIRY RELATED TO THE LAST OF THESE BILLS.  IT IS TRUE, AS PETITIONER
POINTS OUT, THAT THE PROPONENT OF THE BILL IN THE HOUSE, MR. UNDERHILL,
SAID, WHEN THE BILL WAS INTRODUCED:  "THE BILL I HAVE INTRODUCED SIMPLY
ALLOWS SUITS IN ADMIRALTY TO BE BROUGHT BY OWNERS OF VESSELS WHOSE
PROPERTY HAS BEEN DAMAGED BY COLLISION OR OTHER FAULT OF GOVERNMENT
VESSELS AND GOVERNMENT AGENTS."  FN11  FURTHER, ON INQUIRY AS TO
WHETHER SUIT COULD BE BROUGHT ONLY WHERE BLAME WAS CHARGED TO THE
GOVERNMENT, HE ANSWERED:  "NOT ENTIRELY; WHERE A MAN'S PROPERTY IS
DAMAGED, HE CAN BRING A SUIT."  FN12  THESE STATEMENTS WERE NOT,
HOWEVER, ANSWERS TO QUESTIONS WHETHER THE ACT WOULD PROVIDE A REMEDY
FOR INJURY TO THE PERSON AS WELL AS TO PROPERTY, NOR DOES IT APPEAR
THAT THE SPEAKER WAS AT THE TIME ATTENTIVE TO SUCH POSSIBLE
DISTINCTIONS.  IT IS ALSO TRUE THAT THE COMMITTEE REPORT SAID THAT "THE
CHIEF PURPOSE OF THIS BILL IS TO GRANT PRIVATE OWNERS OF VESSELS AND OF
MERCHANDISE A RIGHT OF ACTION WHEN THEIR VESSELS OR GOODS HAVE BEEN
DAMAGED AS THE RESULT OF A COLLISION WITH ANY GOVERNMENT-OWNED
VESSEL."  N13  HOWEVER, IN THE SAME REPORT A LETTER FROM THE ATTORNEY
GENERAL WAS INCORPORATED, WHICH, WHILE IT WAS ADDRESSED TO THE
PREDECESSOR BILL, H.R. 6989, SERVES, IN THE ABSENCE OF CONTRADICTION BY
THE REPORT, AS AN INDICATION OF THE COMMITTEE'S OPINION ON THE INTENDED
EFFECT OF THE ACT.  THAT LETTER EXPLICITLY STATED THAT "THE PROPOSED
BILL INTENDS TO GIVE THE SAME RELIEF AGAINST THE GOVERNMENT FOR DAMAGES
CAUSED  ...  BY ITS PUBLIC VESSELS  ...  AS IS NOW GIVEN AGAINST THE
UNITED STATES IN THE OPERATION OF ITS MERCHANT VESSELS, AS PROVIDED BY
THE SUITS IN ADMIRALTY ACT OF MARCH 9, 1920."  AS THE RIGHT TO SUE FOR
PERSONAL INJURIES UNDER THE SUITS IN ADMIRALTY ACT WAS CLEAR, IT MAY BE
INFERRED, AT LEAST AS STRONGLY AS THE OPPOSITE IS IMPLIED BY MR.
UNDERHILL'S REMARKS, THAT THE COMMITTEE UNDERSTOOD THAT THE ACT WOULD
PROVIDE A REMEDY TO PERSONS SUFFERING PERSONAL INJURIES AS WELL AS
PROPERTY DAMAGE.  FN14  MOREOVER, WHEN THE BILL REACHED THE FLOOR OF
THE SENATE THERE WAS NOT THE LEAST INDICATION THAT THE MEMBERS OF THAT
BODY BELIEVED THAT THE ACT LIMITED RELIEF TO OWNERS OF DAMAGED
PROPERTY.  FN15 

THE PASSAGE OF THE SUITS IN ADMIRALTY ACT, THE PUBLIC VESSELS ACT,
AND THE FEDERAL TORT CLAIMS ACT  FN16  ATTESTS TO THE GROWING FEELING
OF CONGRESS THAT THE UNITED STATES SHOULD PUT ASIDE ITS SOVEREIGN ARMOR
IN CASES WHERE FEDERAL EMPLOYEES HAVE TORTIOUSLY CAUSED PERSONAL INJURY
OR PROPERTY DAMAGE.  TO HOLD NOW THAT THE PUBLIC VESSELS ACT DOES NOT
PROVIDE A REMEDY AGAINST THE UNITED STATES FOR PERSONAL INJURIES WOULD
IN THE FUTURE ONLY THROW THIS FORM OF MARITIME ACTION UNDER THE FEDERAL
TORT CLAIMS ACT; FOR THAT ACT EXCEPTS FROM ITS COVERAGE "ANY CLAIM FOR
WHICH A REMEDY IS PROVIDED BY THE ACT  ...  OF MARCH 3, 1925(THE PUBLIC
VESSELS ACT)(U.S.C., TITLE 46, SECS. 781-790, INCLUSIVE)  ..."  FN17 WE
CANNOT BELIEVE THAT THE PUBLIC VESSELS ACT, READ IN THE LIGHT OF ITS
LEGISLATIVE HISTORY EVINCES A CONGRESSIONAL INTENT ONLY TO PROVIDE A
REMEDY TO THE OWNERS OF DAMAGED PROPERTY. 

THIS DETERMINATION DOES NOT DISPOSE OF ALL THE ISSUES RAISED BY THE
PORELLO CASE.  WHEN IMPLEADED BY THE UNITED STATES IN THE TRIAL COURT,
AMERICAN, THE PETITIONER HERE, PLEADED AS AN AFFIRMATIVE DEFENSE THAT
PORELLO, HAVING ACCEPTED COMPENSATION PAYMENTS FROM AMERICAN, LOST
WHATEVER RIGHT OF ACTION HE HAD AGAINST THE UNITED STATES AS A THIRD
PARTY TORTFEASOR.  THE PETITIONER ADMITS THAT SEC. 33(B) OF THE
LONGSHOREMEN'S ACT WAS AMENDED IN 1938 SO THAT MERE ACCEPTANCE OF
COMPENSATION, WITHOUT AN AWARD, DOES NOT OPERATE AS AN ASSIGNMENT TO
THE EMPLOYER OF THE INJURED EMPLOYEE'S CAUSE OF ACTION AGAINST A THIRD
PARTY TORTFEASOR, A CONCLUSION WHICH COURTS HAD REACHED UNDER THE
FORMER WORDING OF THE ACT.  FN18  BUT IT CONTENDS THAT THE AMENDMENT
DID NO MORE, AND THAT ACCEPTANCE OF COMPENSATION STILL OPERATES AS A
CONCLUSIVE ELECTION NOT TO SUE.  IT IS QUITE CLEAR THAT MERE ACCEPTANCE
OF COMPENSATION IS NOT THE KIND OF ELECTION FOR WHICH PROVISION IS MADE
BY SEC. 33(A) OF THE ACT, WHICH PROVIDES FOR NOTICE OF INTENTION TO THE
DEPUTY COMMISSIONER,  FN19  SO THE ARGUMENT IS TECHNICALLY IMPERFECT. 
BUT IN ANY EVENT, ELECTION NOT TO SUE A THIRD PARTY AND ASSIGNMENT OF
THE CAUSE OF ACTION ARE TWO SIDES OF THE SAME COIN.  SURELY THE ACT WAS
NEVER INTENDED AND HAS NEVER BEEN HELD TO PROVIDE THAT AFTER ACCEPTANCE
OF COMPENSATION, AND UNTIL AN AWARD, NEITHER EMPLOYER NOR EMPLOYEE
COULD SUE THE THIRD-PARTY TORTFEASOR.  IF SO HELD, AN EMPLOYER WHO WAS
NOT RESPONSIBLE OVER TO THE THIRD PARTY MIGHT LOSE HIS CHANCE TO RECOUP
COMPENSATION PAYMENTS FROM THE THIRD PARTY, WHILE THE THIRD PARTY MIGHT
ESCAPE ALL LIABILITY.  AMERICAN, IN THE UNUSUAL CIRCUMSTANCES OF THIS
CASE, COULD HAVE PROTECTED ITSELF BY CONTROVERTING THE EMPLOYEE'S RIGHT
TO RECEIVE COMPENSATION.  FN20  IN THIS WAY IT COULD PROBABLY HAVE
FORCED AN AWARD AND THE CONSEQUENT ASSIGNMENT OF THE RIGHT OF ACTION TO
ITSELF. 

CONGRESS HAS PROVIDED THAT UNLESS AN EMPLOYER CONTROVERTS THE RIGHT
OF THE EMPLOYEE TO RECEIVE COMPENSATION, HE MUST BEGIN PAYMENTS WITHIN
TWO WEEKS OF THE INJURY.  FN21  THE EMPLOYEE THUS RECEIVES COMPENSATION
PAYMENTS QUITE SOON AFTER HIS INJURY BY FORCE OF THE ACT.  YET THE ACT
DOES NOT PUT A TIME LIMITATION UPON THE PERIOD DURING WHICH AN EMPLOYEE
MUST ELECT TO RECEIVE COMPENSATION OR TO SUE, SAVE THE GENERAL
LIMITATION OF ONE YEAR UPON THE TIME TO MAKE A CLAIM FOR COMPENSATION. 
FN22  THE APPARENT PURPOSE OF THE ACT IS TO PROVIDE PAYMENTS DURING THE
PERIOD WHILE THE EMPLOYEE IS UNABLE TO EARN, WHEN THEY ARE SORELY
NEEDED, WITHOUT COMPELLING HIM TO GIVE UP HIS RIGHT TO SUE A THIRD
PARTY WHEN HE IS LEAST FIT TO MAKE A JUDGMENT OF ELECTION.  FOR THESE
REASONS WE THINK THAT MERE ACCEPTANCE OF COMPENSATION PAYMENTS DOES NOT
PRECLUDE AN INJURED EMPLOYEE FROM THEREAFTER ELECTING TO SUE A THIRD
PARTY TORTFEASOR.    AMERICAN FURTHER ARGUES THAT THE COURT BELOW, AS
AN ADMIRALTY COURT, DID NOT HAVE JURISDICTION OF THE INDEMNITY
PROVISION OF THE STEVEDORING CONTRACT, AND THAT THEREFORE THE DECREE
GRANTING FULL INDEMNITY TO THE UNITED STATES FROM AMERICAN WAS BEYOND
ITS POWER.  A STEVEDORING CONTRACT IS MARITIME.  ATLANTIC TRANSPORT CO.
V. IMBROVEK, 234 U.S. 52, 62; THE MUSKEGON, 275 F. 348.  AND ALTHOUGH
ADMIRALTY JURISDICTION OVER CONTRACTS PARTLY MARITIME AND PARTLY NON
MARITIME IN NATURE IS DOUBTFUL, THE CASES RAISING SUCH DOUBTS ARE
CONCERNED ONLY WITH CONTRACTS FOR THE PERFORMANCE OF PARTLY NON
MARITIME ACTIVITIES.  SEE THE RICHARD WINSLOW, 71 F. 426; PILLSBURY
FLOUR MILLS CO. V. INTERLAKE S.S. CO., 40 F.2D 439.  TO SEVER A
CONTRACT PROVISION FOR INDEMNITY FOR DAMAGES ARISING OUT OF THE
PERFORMANCE OF WHOLLY MARITIME ACTIVITIES WOULD ONLY NEEDLESSLY
MULTIPLY LITIGATION.  SUCH A PROVISION IS A NORMAL CLAUSE IN CONTRACTS
TO ACT FOR OTHERS AND NO MORE DETERMINES THE NATURE OF A CONTRACT THAN
DO CONDITIONS ON THE TIME AND PLACE OF PAYMENT. 

WHETHER THE INDEMNITY PROVISION WAS RIGHTLY CONSTRUED BY THE COURT
BELOW IS A MORE DIFFICULT QUESTION.  IT WAS PROVIDED THAT: 

"THE STEVEDORE PERFORMING ANY SERVICE UNDER THIS SCHEDULE SHALL BE
RESPONSIBLE FOR ANY AND ALL DAMAGE OR INJURY TO PERSONS AND CARGO WHILE
LOADING OR OTHERWISE HANDLING OR STOWING THE SAME, TO ANY SHIP
INCLUDING ITS APPAREL AND EQUIPMENT, WHARVES, DOCKS, LIGHTERS,
ELEVATORS, CARS, AND CAR-FLOATS USED IN CONNECTION THEREWITH, THROUGH
THE NEGLIGENCE OR FAULT OF THE STEVEDORE, HIS EMPLOYEES AND SERVANTS." 

THE STEVEDORE, AMERICAN, CONTENDS THAT IT IS LIABLE TO INDEMNIFY THE
UNITED STATES ONLY IF DAMAGES RESULTED FROM ITS NEGLIGENCE ALONE. 
RESPONDENT, UNITED STATES, ARGUES AND THE COURT BELOW HELD, THAT SUCH
AN INTERPRETATION WOULD RENDER THE PROVISION MEANINGLESS SINCE THE
UNITED STATES WOULD "BE LIABLE ONLY IF ITSELF AT FAULT" AND THAT THE
CLEAR MEANING OF THE PROVISION IS THAT THE STEVEDORE WOULD BE LIABLE SO
LONG AS THE ACCIDENT WAS CAUSED IN WHOLE OR IN PART THROUGH ITS
NEGLIGENCE. 

AMERICAN, HOWEVER, INSISTS THAT THE CLAUSE MERELY STATED EXISTING
LAW.  ON THIS RECORD WE CANNOT ANSWER THE CONTENTION OF EITHER PARTY. 
AS IT STANDS THE CLAUSE IS AMBIGUOUS.  EVIDENCE MIGHT WELL HAVE BEEN
TAKEN AS TO THE INTENTION OF THE PARTIES, BUT WAS NOT.  FN23  IT MAY BE
THAT THE PARTIES ONLY MEANT AMERICAN TO INDEMNIFY THE UNITED STATES
SHOULD THE GOVERNMENT BE HELD LIABLE FOR DAMAGES SOLELY CAUSED BY
AMERICAN'S NEGLIGENCE.  IT MAY BE THAT THE INTENTION WAS THAT AMERICAN
SHOULD FULLY REIMBURSE THE UNITED STATES FOR ALL DAMAGES CAUSED IN ANY
PART BY AMERICAN'S NEGLIGENCE.  FINALLY, THE PARTIES MAY HAVE INTENDED
THAT AMERICAN, IN CASE OF THE JOINT NEGLIGENCE OF THE PARTIES, SHOULD
BE RESPONSIBLE FOR THAT PROPORTION OF THE DAMAGES WHICH ITS FAULT BORE
TO THE TOTAL FAULT.  ALTHOUGH THE USUAL RULE IN ADMIRALTY, IN THE
ABSENCE OF CONTRACT, IS FOR EACH JOINT TORTFEASOR TO PAY THE INJURED
PARTY A MOIETY OF THE DAMAGES, THE ALABAMA, 92 U.S. 695; THE ATLAS, 93
U.S. 302; BARBARINO V. STANHOPE S.S. CO., 151 F.2D 553, WE DO NOT
BELIEVE THAT THE LAST ALTERNATIVE, THICH PROVIDES FOR A MEASURE OF
COMPARATIVE NEGLIGENCE, IS NECESSARILY BEYOND THE INTENT OF THE
PARTIES.  COMPARATIVE NEGLIGENCE IS NOT UNKNOWN TO OUR MARITIME LAW. 
THE MAX MORRIS, 137 U.S. 1; THE HENRY S. GROVE, 22 F.2D 444; SEE
ROBINSON ON ADMIRALTY, P. 91.  FROM THE RECORD IT IS NOT CLEAR WHETHER
THE DISTRICT COURT MADE ANY FINDING AS TO THE MEANING OF THE CONTRACT. 
WE BELIEVE ITS INTERPRETATION SHOULD BE LEFT IN THE FIRST INSTANCE TO
THAT COURT, WHICH SHALL HAVE THE BENEFIT OF SUCH EVIDENCE AS THERE IS
UPON THE INTENTION OF THE PARTIES.  IF THE DISTRICT COURT INTERPRETS
THE CONTRACT NOT TO APPLY TO THE FACTS OF THIS CASE, THE COURT WOULD,
OF COURSE, BE FREE TO ADJUDGE THE RESPONSIBILITY OF THE PARTIES TO THE
CONTRACT UNDER APPLICABLE RULES OF ADMIRALTY LAW. 

WE THEREFORE AFFIRM THE DECREE OF THE CIRCUIT COURT OF APPEALS AS TO
PORELLO.  WE REVERSE SO MUCH OF THE DECREE AS AWARDS INDEMNITY TO THE
UNITED STATES UNDER THE CONTRACT AND REMAND THE CASE TO THE DISTRICT
COURT FOR DETERMINATION OF THE MEANING OF THE CONTRACT. 

THE CASE OF UNITED STATES V. LAURO, NO. 514, IS HERE ON CERTIFICATE
FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.  THE
CERTIFICATE IS QUOTED IN FULL IN THE NOTE.  FN24  THE ONLY QUESTION
POSED BY THE CASE IS WHETHER A SUIT FOR DAMAGES FOR DEATH BY WRONGFUL
ACT WILL LIE UNDER THE PUBLIC VESSELS ACT.  IT IS SETTLED 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" THE ADMIRALTY WILL ENTERTAIN A LIBEL FOR DAMAGES SUSTAINED BY
THOSE TO WHOM THE RIGHT IS GIVEN.  WESTERN FUEL CO. V. GARCIA, 257 U.S.
233, 242.  SEE DISCUSSION IN JUST V. CHAMBERS, 312 U.S. 383, 388-391. 
HERE THE DEATH OCCURRED ON NAVIGABLE WATERS OF NEW YORK, WHICH HAS A
STATUTE GRANTING A RIGHT OF ACTION FOR DAMAGES ON ACCOUNT OF WRONGFUL
DEATH.  NOR CAN DAMAGES SUFFERED ON ACCOUNT OF DEATH BE DISTINGUISHED
FROM DAMAGES ON ACCOUNT OF PERSONAL INJURIES.  DEATH IS THE SUPREME
PERSONAL INJURY.  FOR THE REASONS STATED IN THE PORELLO CASE WE
CONCLUDE THAT THE WORD "DAMAGES" IN THE PUBLIC VESSELS ACT, SEC. 1, 46
U.S.C. SEC. 781, MEANS DAMAGES UNDER SECS. 130-134 OF THE NEW YORK
DECEDENT ESTATE LAW.  ACCORDINGLY WE ANSWER THE CERTIFICATE AS FOLLOWS:
THE WORD "DAMAGES" AS USED IN 46 U.S.C. SEC. 781 INCLUDES DAMAGES
UNDER SECS. 130-134 OF THE DECEDENT ESTATE LAW OF THE STATE OF NEW YORK
RECOVERABLE BY A PERSONAL REPRESENTATIVE BECAUSE OF THE DEATH OF A
HUMAN BEING. 

FN1  44 STAT. 1424, AS AMENDED BY 52 STAT. 1164. 

FN2  43 STAT. 1112: 

"...  A LIBEL IN PERSONAM IN ADMIRALTY MAY BE BROUGHT AGAINST THE
UNITED STATES, OR A PETITION IMPLEADING 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  ..." 

FN3  SEE RULE 56, RULES OF PRACTICE FOR U.S. COURTS IN ADMIRALTY AND
MARITIME JURISDICTION. 

FN4  CANADIAN AVIATOR, LTD. V. UNITED STATES, 324 U.S. 215. 

FN5  43 STAT. 1112, 46 U.S.C. SEC. 781. 

FN6  IT MIGHT BE NOTED HERE THAT THERE IS A DISTINCTION BETWEEN
DAMAGE AND DAMAGES.  BLACK'S LAW DICTIONARY CAUTIONS THAT THE WORD
"DAMAGE," MEANING "LOSS, INJURY, OR DETERIORATION," IS "TO BE
DISTINGUISHED FROM ITS PLURAL, - 'DAMAGES,' - WHICH MEANS A
COMPENSATION IN MONEY FOR A LOSS OR DAMAGE." 

FN7  H.R. 15977, 66TH CONG., 3D SESS.; H.R. 6256, 67TH CONG., 1ST
SESS.; H.R. 6989, 68TH CONG., 1ST SESS.; H.R. 9075, 68TH CONG., 1ST
SESS.; H.R. 9535, 68TH CONG., 1ST SESS. 

FN8  SEE HEARING BEFORE THE COMMITTEE ON THE JUDICIARY OF THE HOUSE
OF REPRESENTATIVES, ON H.R. 9075, 68TH CONG., 1ST SESS., MAY 21, 1924. 

FN9  46 U.S.C. SECS. 741, 742: 

"NO VESSEL OWNED BY THE UNITED STATES  ...  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
..." 

"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 741
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...." 

JOHNSON V. FLEET CORPORATION, 280 U.S. 320; BRADY V. ROOSEVELT S.S.
CO., 317 U.S. 575. 

FN10  S. REP. NO. 941, 68TH CONG., 2D SESS. 

FN11  66 CONG. REC. 2087. 

FN12  66 CONG. REC. 2088. 

FN13  S. REP. NO. 941, 68TH CONG., 2D SESS., P. 1.  OF COURSE THE
CHIEF PURPOSE OF THE BILL WAS TO PROVIDE A REMEDY FOR THOSE WHO CHIEFLY
URGED THE BILL - THE VESSEL OWNERS.  BUT THE COMMITTEE, IN SO STATING,
CANNOT BE TAKEN TO HAVE MADE THAT PURPOSE THE ONLY ONE.  BY THAT TOKEN
THE PURPOSE WOULD BE TO PROVIDE A REMEDY ONLY FOR COLLISION DAMAGES, A
LIMITATION CLEARLY DISCARDED BY OMITTING THE WORDS "BY COLLISION" FROM
THE ACT.  CANADIAN AVIATOR, LTD. V. UNITED STATES, SUPRA, N. 4. 

FN14  SEE NOTE 9, SUPRA. 

FN15  SO THE ONLY PERTINENT COMMENTS FOLLOW, 66 CONG. REC. 3560: 

"MR. ROBINSON.  I THINK THE SENATOR FROM DELAWARE SHOULD STATE
BRIEFLY TO THE SENATE THE EFFECT OF THE BILL.  IT SEEMS TO BE A MEASURE
OF CONSIDERABLE IMPORTANCE. 

"MR. BAYARD.  MR. PRESIDENT, THE SENATOR FROM ARKANSAS IS QUITE
RIGHT; IT IS A MEASURE OF GREAT IMPORTANCE.  THERE ARE CONTINUOUS
APPLICATIONS BEING MADE TO THE CLAIMS COMMITTEE OF BOTH HOUSES FOR THE
CONSIDERATION OF BILLS TO REIMBURSE PEOPLE WHO HAVE SUFFERED DAMAGE
FROM MARITIME ACCIDENTS IN WHICH UNITED STATES VESSELS ARE CONCERNED,
TO ENABLE THEM TO PRESENT THEIR SUITS IN THE VARIOUS DISTRICT COURTS. 
IN THIS LAST CONGRESS THERE WERE NEARLY 200 SUCH CLAIM BILLS INTRODUCED
IN THE TWO HOUSES. 

"...  IT WOULD GIVE A PERSON AGGRIEVED BECAUSE OF AN ACCIDENT BY
REASON OF THE SHORTCOMINGS OF A UNITED STATES SHIP THE RIGHT TO GO INTO
A DISTRICT COURT AND PROSECUTE HIS ACTION.  IT PROVIDES FOR THE
APPEARANCE OF THE ATTORNEY GENERAL OF THE UNITED STATES, AND ALL
MARITIME ACCIDENTS OF ANY KIND RESULTING FROM COLLISION, AND SO ON, ARE
TAKEN CARE OF.  A GREAT DEAL OF MONEY WOULD BE SAVED TO THE
GOVERNMENT. 

"INCIDENTALLY, THE BILL WOULD ACCOMPLISH SOMETHING WHICH SHOULD HAVE
BEEN DONE IN THIS COUNTRY A LONG TIME AGO.  IT WOULD GIVE AN
OPPORTUNITY TO DO JUSTICE WHEN FEDERAL EMPLOYEES HAVE COMMITTED AN
OFFENSE AGAINST AN INDIVIDUAL.... 

"MR. ROBINSON.  IF ENACTED, IT WOULD RELIEVE CONGRESS OF THE
CONSIDERATION OF A GREAT MANY MEASURES IN THE NATURE OF PRIVATE
CLAIMS. 

"MR. BAYARD.  ALL CLAIMS OF THIS NATURE." 

FN16  60 STAT. 812, SECS. 401-424. 

FN17  ID., SEC. 421. 

FN18  THE STATUTE FORMERLY PROVIDED, 44 STAT. 1440: 

"ACCEPTANCE OF SUCH COMPENSATION SHALL OPERATE AS AN ASSIGNMENT TO
THE EMPLOYER OF ALL RIGHT OF THE PERSON ENTITLED TO COMPENSATION TO
RECOVER DAMAGES AGAINST SUCH THIRD PERSON, WHETHER OR NOT THE PERSON
ENTITLED TO COMPENSATION HAS NOTIFIED THE DEPUTY COMMISSIONER OF HIS
ELECTION." 

UNDER THIS FORM OF THE STATUTE, COURTS HAD HELD THAT ACCEPTANCE OF
COMPENSATION PRECLUDED THE EMPLOYEE FROM SUING A THIRD-PARTY
TORTFEASOR.  SCIORTINO V. DIMON S.S. CORP., 39 F.2D 210, AFF'D 44 F.2D
1019; TOOMEY V. WATERMAN S.S. CORP., 123 F.2D 718; THE NAKO MARU, 101
F.2D 716; FREADER V. CITIES SERVICE TRANSP.  CO., 14 F.SUPP.  456. 
CONTRA:  JOHNSEN V. AMERICAN-HAWAIIAN S.S. CO., 98 F.2D 847. 

AS AMENDED THE STATUTE PROVIDES, 52 STAT. 1168: 

"ACCEPTANCE OF SUCH COMPENSATION UNDER AN AWARD IN A COMPENSATION
ORDER FILED BY THE DEPUTY COMMISSIONER SHALL OPERATE AS AN ASSIGNMENT
TO THE EMPLOYER OF ALL RIGHT OF THE PERSON ENTITLED TO COMPENSATION TO
RECOVER DAMAGES AGAINST SUCH THIRD PERSON." 

FN19  33 U.S.C. SEC. 933(A): 

"IF ON ACCOUNT OF A DISABILITY OR DEATH FOR WHICH COMPENSATION IS
PAYABLE UNDER THIS CHAPTER THE PERSON ENTITLED TO SUCH COMPENSATION
DETERMINES THAT SOME PERSON OTHER THAN THE EMPLOYER IS LIABLE IN
DAMAGES, HE MAY ELECT, BY GIVING NOTICE TO THE DEPUTY COMMISSIONER IN
SUCH MANNER AS THE COMMISSION MAY PROVIDE, TO RECEIVE SUCH COMPENSATION
OR TO RECOVER DAMAGES AGAINST SUCH THIRD PERSON." 

FN20  SEE 33 U.S.C. SEC. 914(D) AND (H). 

FN21  33 U.S.C. SEC. 914(B), (E). 

FN22  33 U.S.C. SEC. 913(A). 

FN23  AMERICAN MOVED THE CIRCUIT COURT OF APPEALS FOR AN ORDER
ALLOWING THE PARTIES TO TAKE PROOF AND TO SUBMIT IT TO THE COURT AS TO
THE INTENT OF THE PARTIES RESPECTING THE INDEMNITY CLAUSE OF THE
CONTRACT, OR IN THE ALTERNATIVE FOR AN ORDER REMANDING THE PROCEEDING
TO THE DISTRICT COURT FOR FURTHER HEARING AS TO THE INTENT AND MEANING
OF THE CLAUSE.  THE CIRCUIT COURT OF APPEALS DENIED THE MOTION. 

FN24                           "STATEMENT OF FACTS 

"ON MAY 27, 1943, PETER LAURO DIED AS A RESULT OF INJURIES SUFFERED
BY HIM ON MAY 26, 1943, WHILE HE WAS EMPLOYED BY MARRA BROS.,
CONTRACTING STEVEDORES, ON BOARD RESPONDENT'S VESSEL, DESIGNATED AS NO.
596, WHICH VESSEL WAS DOCKED AT PIER 4, STATEN ISLAND, NEW YORK.  THE
DEATH WAS CAUSED BY PERSONAL INJURIES SUFFERED BY LAURO WHEN HE FELL
FROM A HATCH COVER ON THE VESSEL'S MAIN DECK INTO THE HOLD.  AT THE
TIME OF THE ACCIDENT, THE VESSEL, NO. 596, WAS OWNED BY THE UNITED
STATES OF AMERICA, RESPONDENT, AND HAD BEEN ALLOCATED BY THE RESPONDENT
TO THE UNITED STATES ARMY.  IT WAS BEING LOADED WITH CARGO WHICH WAS
OWNED BY THE UNITED STATES, AND WHICH CONSISTED OF ARMY AND NAVY
PROPERTY AND LEND-LEASE MATERIAL WHICH WAS BEING SHIPPED TO NORTH
AFRICA.  MARRA BROS., THE EMPLOYER OF THE DECEASED, WAS HIRED BY THE
UNITED STATES ARMY TO LOAD THE VESSEL. 

"THEREAFTER, LAURO'S WIDOW FILED A LIBEL IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK AGAINST UNITED
STATES OF AMERICA TO RECOVER DAMAGES UNDER THE PUBLIC VESSELS ACT OF
1925; 46 U.S.C. SECTION 781, FOR WRONGFULLY CAUSING LAURO'S DEATH.  IN
THIS PROCEEDING THE DISTRICT COURT RENDERED A DECREE AWARDING DAMAGES
TO THE LIBELANT IN THE SUM OF $25,000.  FROM THIS DECREE AN APPEAL WAS
TAKEN TO THIS COURT, AND THE CAUSE CAME ON FOR ARGUMENT ON MARCH 12,
1946.  ON THIS APPEAL, THE RESPONDENT-APPELLANT CONTENDED THAT THE SAID
PUBLIC VESSELS ACT OF 1925 PROVIDED A REMEDY AGAINST THE UNITED STATES
FOR DAMAGE TO PROPERTY ONLY, BUT NOT FOR DAMAGE TO A PERSON OR DAMAGE
ARISING BY REASON OF THE DEATH OF A HUMAN BEING.  THE QUESTION THUS
ARISING IS AS FOLLOWS:                               "QUESTION
CERTIFIED 

"DOES THE WORD 'DAMAGES,' AS IT APPEARS IN THE FOLLOWING SENTENCE OF
THE PUBLIC VESSELS ACT OF 1925; 46 U.S.C. SEC. 781: 

'A LIBEL IN PERSONAM IN ADMIRALTY MAY BE BROUGHT AGAINST THE UNITED
STATES, OR A PETITION IMPLEADING 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' 

MEAN DAMAGES TO PROPERTY ONLY, OR DOES IT MEAN, AS WELL, DAMAGES
UNDER SECTIONS 130 TO 134 OF THE DECEDENT ESTATE LAW OF THE STATE OF
NEW YORK RECOVERABLE BY A PERSONAL REPRESENTATIVE BECAUSE OF THE DEATH
OF A HUMAN BEING?  WHICH QUESTION, ARISING FROM THE FACTS AFORESAID, IS
HEREBY SUBMITTED TO THE SUPREME COURT." 

MR. JUSTICE FRANKFURTER, WITH WHOM THE CHIEF JUSTICE CONCURS,
DISSENTING. 

WITHOUT DISREGARDING THE SIGNIFICANCE WHICH WE HAVE HERETOFORE
ATTACHED TO LEGISLATIVE HISTORY, I CANNOT GIVE THE PUBLIC VESSELS ACT
FN1  THE SCOPE GIVEN IT BY THE COURT. 

IT CAN HARDLY BE MAINTAINED THAT, IN THE SETTING OF LEGAL HISTORY,
THE PHRASE "DAMAGES CAUSED BY A PUBLIC VESSEL" MUST COVER PERSONAL
INJURIES DUE TO FAILURE TO PROVIDE PROPER WORKING CONDITIONS FOR A
LONGSHOREMAN.  THE PROBLEM FOR CONSTRUCTION IS NOT WHETHER THE TERM
"DAMAGES" MAY BE APPLIED TO MONEY COMPENSATION FOR HURT TO PERSON OR
PROPERTY.  WHAT IS TO BE CONSTRUED IS "DAMAGES CAUSED BY A PUBLIC
VESSEL."  STANDING BY ITSELF, THAT PHRASE, SPONTANEOUSLY READ, MAY WELL
MEAN DAMAGE INFLICTED BY A PUBLIC VESSEL RATHER THAN "DAMAGES" INCURRED
IN CONNECTION WITH ITS OPERATION.  ALL WE HELD IN CANADIAN AVIATOR,
LTD. V. UNITED STATES, 324 U.S. 215, WAS THAT ITS PERSONNEL WAS PART OF
THE PUBLIC VESSEL FOR PURPOSES OF "CAUSING" DAMAGE TO ANOTHER VESSEL. 

THE WORDS DO NOT STAND ALONE.  THEY ARE ILLUMINED BY THE LEGISLATIVE
HISTORY OF THE PUBLIC VESSELS ACT.  THIS HISTORY HAS BEEN SO ACCURATELY
SUMMARIZED IN THE GOVERNMENT'S BRIEF THAT WE SHALL AVAIL OURSELVES OF
IT: 

"ON MAY 29, 1924, MR. UNDERHILL INTRODUCED H.R. 9535, 68TH CONG., 1ST
SESS., WHICH BECAME THE PUBLIC VESSELS ACT WITHOUT CHANGE SO FAR AS THE
PRESENT PROVISION IS CONCERNED.  AT THAT TIME, THERE WERE ALREADY
PENDING TWO OTHER BILLS, H.R. 6989 AND H.R. 9075, BOTH OF WHICH WOULD
ALSO HAVE AUTHORIZED SUIT IN CASE OF DAMAGE BY A PUBLIC VESSEL.  H.R.
6989, LIKEWISE INTRODUCED BY MR. UNDERHILL, WAS THE SUCCESSOR OF A
SERIES OF BILLS INTRODUCED AT EACH SESSION OF CONGRESS SINCE 1920.  IT
PROVIDED FOR SUIT 'FOR DAMAGES CAUSED BY COLLISION BY A PUBLIC VESSEL,'
AND HAD THE APPROVAL OF ALL INTERESTED GOVERNMENT DEPARTMENTS.  H.R.
9075, A NEW MEASURE, WAS DESIGNED TO REVISE THE SUITS IN ADMIRALTY ACT
AND, AT THE SAME TIME, REMOVE ITS EXISTING LIMITATION TO ONLY SUCH
VESSELS AS ARE OPERATED BY THE GOVERNMENT AS MERCHANT VESSELS.  IT
WOULD HAVE RESULTED IN MAKING THE UNITED STATES LIABLE FOR PERSONAL
INJURIES BY ALL PUBLIC VESSELS EXACTLY AS IT WAS ALREADY FOR THOSE BY
ITS MERCHANT VESSELS.  H.R. 9075 HAD THE POWERFUL SUPPORT OF THE
MARITIME LAW ASSOCIATION OF THE UNITED STATES AND OF JUDGE HOUGH, THEN
THE COUNTRY'S OUTSTANDING ADMIRALTY JUDGE.  IT DID NOT HAVE THE
UNQUALIFIED APPROVAL OF THE INTERESTED DEPARTMENTS, WHICH WERE
INSISTING ON IMPORTANT CHANGES. 

"THE OMISSION OF H.R. 6989 AND ITS PREDECESSORS TO COVER PERSONAL
INJURIES HAD BEEN THE SUBJECT OF CRITICISMS, SOME OF WHICH ARE CITED IN
THE BRIEF OF RESPONDENT PORELLO.  BUT PROTRACTED DELAYS WERE APPARENT
IF AN ATTEMPT WERE MADE TO REWRITE H.R. 9075 SO AS TO MEET THE
OBJECTIONS THERETO.  INSTEAD OF PROCEEDING FURTHER WITH EITHER H.R.
6989 OR H.R. 9075, MR. UNDERHILL, FOR THE COMMITTEE, INTRODUCED H.R.
9535, WHICH, IN PLACE OF LIMITING ITS GRANT OF JURISDICTION TO SUITS
'FOR DAMAGES CAUSED BY COLLISION BY A PUBLIC VESSEL,' COVERED ALL SUITS
'FOR DAMAGES CAUSED BY A PUBLIC VESSEL.'  THE PURPOSE OF THIS CHANGE IS
NOWHERE DISCUSSED.  MR. UNDERHILL, IN EXPLAINING THE INTENT OF THE
PROPOSED LEGISLATION, STATED, HOWEVER (66 CONG. REC. 2087):  'THE BILL
I HAVE INTRODUCED SIMPLY ALLOWS SUITS IN ADMIRALTY TO BE BROUGHT BY
OWNERS OF VESSELS WHOSE PROPERTY HAS BEEN DAMAGED BY COLLISION OR OTHER
FAULT OF GOVERNMENT VESSELS AND GOVERNMENT AGENTS.'  NEVER AT ANY TIME
IN THE COURSE OF THE DEBATES IN THE HOUSE OR SENATE WAS IT EXPRESSLY
STATED THAT THE BILL EXTENDED TO SUITS FOR PERSONAL INJURIES.  MANY
STATEMENTS IN THE COURSE OF THE DEBATES, SOME OF WHICH ARE CITED IN
PETITIONER'S BRIEF, SEEM TO INDICATE THAT ONLY RELIEF FOR PROPERTY
DAMAGE WAS INTENDED.  WE ACCORDINGLY SUBMIT THAT, IF DECISIVE WEIGHT IS
TO BE GIVEN TO THE LEGISLATIVE HISTORY, IT WOULD APPEAR THAT THE PUBLIC
VESSELS ACT WAS NOT INTENDED TO COVER SUITS FOR PERSONAL INJURY." 

IN SCORES OF CASES IN RECENT YEARS THIS COURT HAS GIVEN "DECISIVE
WEIGHT" TO LEGISLATIVE HISTORY.  IT HAS DONE SO EVEN WHEN THE MERE
WORDS OF AN ENACTMENT CARRIED A CLEAR MEANING.  AN IMPRESSIVE COURSE OF
DECISIONS ENJOINS UPON US NOT TO DISREGARD THE LEGISLATIVE HISTORY OF
THE PUBLIC VESSELS ACT UNLESS IT IS SO COMPLETELY AT WAR WITH THE TERMS
OF THE STATUTE ITSELF THAT WE MUST DENY ONE OR THE OTHER.  WE CAN FIND
SUCH A CONFLICT ONLY BY READING THE ACT ITSELF WITH DOGMATIC
INHOSPITALITY TO THE USUAL ILLUMINATIONS FROM WITHOUT. 

WE CANNOT ESCAPE THE CONCLUSION THAT THERE WAS NO JURISDICTION FOR
THIS LIBEL IN THE DISTRICT COURT.  FN2 

FN1  43 STAT. 1112, 46 U.S.C. SEC. 781:  "THAT A LIBEL IN PERSONAM IN
ADMIRALTY MAY BE BROUGHT AGAINST THE UNITED STATES, OR A PETITION
IMPLEADING 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." 

FN2  THIS CONCLUSION IS REINFORCED BY THE REPORT OF THE SENATE
COMMITTEE THAT "THE CHIEF PURPOSE OF THIS BILL IS TO GRANT PRIVATE
OWNERS OF VESSELS AND OF MERCHANDISE A RIGHT OF ACTION WHEN THEIR
VESSELS OR GOODS HAVE BEEN DAMAGED AS THE RESULT OF A COLLISION WITH
ANY GOVERNMENT-OWNED VESSEL."  S. REP. NO. 941, 68TH CONG., 2D SESS.,
P. 1.  THE COURT'S OPINION FINDS OVERRIDING SIGNIFICANCE IN A LETTER BY
THE ATTORNEY GENERAL COMMENTING ON THE BILL, IN WHICH HE STATED THAT IT
"INTENDS TO GIVE THE SAME RELIEF AGAINST THE GOVERNMENT FOR DAMAGES
CAUSED  ...  BY ITS PUBLIC VESSELS" AS WAS GIVEN BY THE SUITS IN
ADMIRALTY ACT.  THAT ACT DID AFFORD THE RIGHT TO SUE FOR PERSONAL
INJURIES.  TO PREFER THE ATTORNEY GENERAL'S VIEW TO THAT EXPRESSED BY
THOSE IN CHARGE OF A MEASURE WOULD IN ITSELF BE NOT THE NORMAL CHOICE. 
AND THIS LETTER OF THE ATTORNEY GENERAL ANTEDATED THE REPORT OF THE
COMMITTEE AND THE STATEMENT OF REPRESENTATIVE UNDERHILL.  COMPARE
UNITED STATES V. DURKEE FAMOUS FOODS, 306 U.S. 68, 71, WHERE THE
COMMITTEE REPORT "STATED THAT THE PURPOSE OF THE BILL WAS SET OUT IN A
LETTER FROM THE ATTORNEY GENERAL WHICH IT QUOTED."  TO REJECT THE
SUBSEQUENT AUTHORITATIVE STATEMENTS OF THE CONGRESSIONAL PROPONENTS OF
THE LEGISLATION AND TO ACCEPT THE VIEW OF THE ATTORNEY GENERAL TO WHICH
THE GOVERNMENT NOW DOES NOT EVEN REFER, IS TO DISCARD IN FAVOR OF DIM
REMOTE LIGHT WHAT HERETOFORE HAS BEEN DEEMED CONTROLLING ILLUMINATION. 

..END :





AETNA CASUALTY CO. V. FLOWERS, 330 U.S. 464 


NO. 432.  ARGUED FEBRUARY 13, 1947.  - DECIDED MARCH 10, 1947.  - 154
F.2D 881, REVERSED. 


1.  THE ACTION OF A CIRCUIT COURT OF APPEALS IN DIRECTING A REMAND TO
A STATE COURT IS REVIEWABLE HERE; AND THE JURISDICTION OF THIS COURT IS
NOT DEFEATED BY THE FACT THAT THE MANDATE OF THE CIRCUIT COURT OF
APPEALS HAS ISSUED.  PP. 466-467. 

2. A SUIT FOR DEATH BENEFITS IN THE AMOUNT OF $5,000 UNDER THE
WORKMEN'S COMPENSATION LAW OF TENNESSEE, HELD TO INVOLVE THE SUM OF
$3,000 REQUISITE TO THE JURISDICTION OF A FEDERAL DISTRICT COURT ON THE
GROUND OF DIVERSITY OF CITIZENSHIP, NOTWITHSTANDING THAT UNDER THE
STATE LAW AN AWARD WOULD BE PAYABLE IN INSTALLMENTS AND, BY OPERATION
OF CONDITIONS SUBSEQUENT, THE PAYMENTS MIGHT BE TERMINATED BEFORE
TOTALING $3,000.  PP. 467-468. 

3.  SINCE THE OTHER GROUNDS RELIED ON BY THE RESPONDENT TO SUSTAIN
THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS WERE NOT PASSED UPON BY
THAT COURT NOR ADEQUATELY PRESENTED HERE, THE CASE IS REMANDED TO THE
CIRCUIT COURT OF APPEALS FOR CONSIDERATION OF THOSE QUESTIONS.  P.
468. 

AETNA CASUALTY & SURETY CO. ET AL. V. FLOWERS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

RESPONDENT'S SUIT AGAINST PETITIONERS IN A STATE COURT, TO RECOVER
DEATH BENEFITS UNDER THE WORKMEN'S COMPENSATION LAW OF TENNESSEE, WAS
REMOVED TO A FEDERAL DISTRICT COURT ON THE GROUND OF DIVERSITY OF
CITIZENSHIP.  THE DISTRICT COURT DISMISSED THE ACTION FOR WANT OF
PROPER VENUE.  THE CIRCUIT COURT OF APPEALS HELD THAT THE REQUISITE
JURISDICTIONAL AMOUNT WAS NOT INVOLVED AND DIRECTED REMAND TO THE STATE
COURT.  154 F.2D 881.  THIS COURT GRANTED CERTIORARI.  329 U.S. 699. 
REVERSED AND REMANDED, P. 468. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS ACTION FOR DEATH BENEFITS UNDER THE WORKMEN'S COMPENSATION LAW
OF TENNESSEE (TENN. CODE ANN. 1934, SEC. 6851 ET SEQ.) WAS COMMENCED IN
1945 BY PLAINTIFF-RESPONDENT IN THE CHANCERY COURT OF HAWKINS COUNTY,
TENNESSEE.  THE DEFENDANTS-PETITIONERS ARE THE FORMER EMPLOYER OF HER
DECEASED HUSBAND AND THE EMPLOYER'S INSURANCE CARRIER.  SERVICE WAS HAD
ON THE INSURANCE CARRIER IN HAWKINS COUNTY, AND ON THE EMPLOYER IN KNOX
COUNTY.  RESPONDENT IS A CITIZEN OF TENNESSEE, THE EMPLOYER IS A NORTH
CAROLINA CORPORATION, AND THE INSURANCE CARRIER IS A CONNECTICUT
CORPORATION.  THE COMPLAINT ALLEGED THAT RESPONDENT'S HUSBAND DIED AS
THE RESULT OF AN ACCIDENT OCCURRING IN THE COURSE OF HIS EMPLOYMENT. 
BURIAL EXPENSES PLUS BENEFITS IN THE AMOUNT OF $5,000, THE MAXIMUM
UNDER THE TENNESSEE STATUTE,  FN1  WERE SOUGHT ON BEHALF OF RESPONDENT
AND HER TWO MINOR CHILDREN, AGED TWELVE AND FIFTEEN. 

ON MAY 28, 1945, PETITIONERS MAILED A NOTICE OF INTENTION TO FILE A
PETITION FOR REMOVAL TO A FEDERAL DISTRICT COURT WHICH WAS RECEIVED BY
RESPONDENT'S ATTORNEY ON THE MORNING OF MAY 29.  THE PETITION FOR
REMOVAL WAS FILED IN THE CHANCERY COURT THE SAME DAY, AND ON JUNE 5 THE
REMOVAL ORDER ISSUED.  IN THE FEDERAL COURT THE PETITIONERS MOVED FOR
DISMISSAL ON THE GROUND THAT VENUE WAS NOT PROPERLY LAID IN THE HAWKINS
COUNTY COURT, SO THAT UNDER TENNESSEE LAW THAT COURT HAD LACKED
JURISDICTION.  FN2  RESPONDENT SOUGHT A REMAND OF THE CASE TO THE STATE
COURT, CONTENDING THAT THE REQUISITES OF DIVERSITY JURISDICTION HAD NOT
BEEN MET EITHER AS TO JURISDICTIONAL AMOUNT OR AS TO PROPER NOTICE OF
FILING OF THE REMOVAL PETITION, AND THAT THE SUIT WAS NOT REMOVABLE
BECAUSE NOT ONE OF A CIVIL NATURE IN LAW OR EQUITY.  THE DISTRICT COURT
CONCLUDED THAT HAWKINS COUNTY WAS NOT THE PROPER VENUE.  IT THEREUPON
DISMISSED THE ACTION WITHOUT REACHING THE QUESTIONS RAISED BY
RESPONDENT'S MOTION FOR A REMAND. 

THE JUDGMENT WAS REVERSED ON APPEAL.  154 F.2D 881.  THE CIRCUIT
COURT OF APPEALS HELD THAT THE JURISDICTIONAL MINIMUM OF $3,000 IN
CONTROVERSY (JUDICIAL CODE SEC. 24, 28 U.S.C. SEC. 41(1)) WAS NOT
PRESENT, AND THEREFORE ORDERED THE CASE REMANDED TO THE STATE COURT. 
IN THIS DISPOSITION THE CIRCUIT COURT OF APPEALS REACHED NEITHER THE
STATE VENUE QUESTION RAISED BY PETITIONERS, NOR RESPONDENT'S CONTENTION
THAT THE REQUIRED NOTICE OF THE FILING OF THE REMOVAL PETITION WAS
LACKING.  WE GRANTED CERTIORARI BECAUSE OF AN APPARENT CONFLICT WITH
BROTHERHOOD OF LOCOMOTIVE FIREMEN V. PINKSTON, 293 U.S. 96, AS TO THE
JURISDICTIONAL MINIMUM REQUIREMENT. 

FIRST.  IT IS SUGGESTED THAT A DECISION OF A CIRCUIT COURT OF APPEALS
ORDERING REMAND OF A CASE TO A STATE COURT IS NOT REVIEWABLE.  AND IT
IS ALSO SAID THAT WE LACK POWER TO REVIEW THE ACTION OF THE CIRCUIT
COURT OF APPEALS, SINCE THE MANDATE OF THAT COURT HAS ISSUED AND THE
DISTRICT COURT HAS REMANDED THE CAUSE TO THE STATE COURT. 

AN ORDER OF A DISTRICT COURT REMANDING A CAUSE TO THE STATE COURT
FROM WHENCE IT CAME IS NOT APPEALABLE, AND HENCE MAY NOT BE REVIEWED
EITHER IN THE CIRCUIT COURT OF APPEALS OR HERE.  JUDICIAL CODE SEC. 28,
28 U.S.C. SEC. 71; KLOEB V. ARMOUR & CO., 311 U.S. 199; METROPOLITAN
CASUALTY INS. CO. V. STEVENS, 312 U.S. 563; UNITED STATES V. RICE, 327
U.S. 742.  BUT NO SUCH LIMITATION AFFECTS OUR AUTHORITY TO REVIEW AN
ACTION OF THE CIRCUIT COURT OF APPEALS, DIRECTING A REMAND TO A STATE
COURT.  GAY V. RUFF, 292 U.S. 25.  NOR DOES THE FACT THAT THE MANDATE
OF THE CIRCUIT COURT OF APPEALS HAS ISSUED DEFEAT THIS COURT'S
JURISDICTION.  CARR V. ZAJA, 283 U.S. 52, AND CASES CITED. 

SECOND. WE THINK THAT THE JURISDICTIONAL AMOUNT OF $3,000 WAS
INVOLVED IN THIS SUIT.  THE CONTRARY CONCLUSION OF THE CIRCUIT COURT OF
APPEALS WAS BASED ON THE NATURE OF THE AWARD UNDER THE TENNESSEE
STATUTE.  THE AWARD MAY BE PAID IN INSTALLMENTS AT REGULAR INTERVALS BY
THE EMPLOYER OR BY A TRUSTEE WITH WHOM THE AMOUNT OF THE AWARD, REDUCED
TO PRESENT VALUE, HAS BEEN DEPOSITED.  TENN. CODE SEC. 6893.  MOREOVER,
THE DEATH OR REMARRIAGE OF RESPONDENT, PLUS THE DEATH OR ATTAINMENT OF
THE AGE OF EIGHTEEN BY THE CHILDREN, WOULD TERMINATE ALL PAYMENTS. 
TENN. CODE SEC. 6883.  SINCE AN AWARD TO RESPONDENT WOULD BE PAYABLE IN
INSTALLMENTS, AND BY OPERATION OF CONDITIONS SUBSEQUENT THE TOTAL
PAYMENTS MIGHT NEVER REACH $3,000, THE CIRCUIT COURT OF APPEALS
CONCLUDED THAT THE JURISDICTIONAL AMOUNT WAS LACKING. 

IF THIS CASE WERE ONE WHERE JUDGMENT COULD BE ENTERED ONLY FOR THE
INSTALLMENTS DUE AT THE COMMENCEMENT OF THE SUIT (CF. NEW YORK LIFE
INS. CO. V. VIGLAS, 297 U.S. 672, 678), FUTURE INSTALLMENTS COULD NOT
BE CONSIDERED IN DETERMINING WHETHER THE JURISDICTIONAL AMOUNT WAS
INVOLVED, EVEN THOUGH THE JUDGMENT WOULD BE DETERMINATIVE OF LIABILITY
FOR FUTURE INSTALLMENTS AS THEY ACCRUED.  WRIGHT V. MUTUAL LIFE INS.
CO., 19 F.2D 117, AFF'D.  276 U.S. 602.  CF. BUTTON V. MUTUAL LIFE INS.
CO., 48 F.SUPP.  168.  BUT THIS IS NOT THAT TYPE OF CASE.  FOR THE
TENNESSEE STATUTE WHICH CREATES LIABILITY FOR THE AWARD CONTEMPLATES A
SINGLE ACTION FOR THE DETERMINATION OF CLAIMANT'S RIGHT TO BENEFITS AND
A SINGLE JUDGMENT FOR THE AWARD GRANTED.  SEE TENN. CODE SECS. 6880,
6881, 6890, 6891, 6893; SHOCKLEY V. MORRISTOWN PRODUCE & ICE CO., 171
TENN. 591, 106 S.W.2D 562. 

NOR DOES THE FACT THAT IT CANNOT BE KNOWN AS A MATTER OF ABSOLUTE
CERTAINTY THAT THE AMOUNT WHICH MAY ULTIMATELY BE PAID, IF RESPONDENT
PREVAILS, WILL EXCEED $3,000, MEAN THAT THE JURISDICTIONAL AMOUNT IS
LACKING.  THIS COURT HAS REJECTED SUCH A RESTRICTIVE INTERPRETATION OF
THE STATUTE CREATING DIVERSITY JURISDICTION.  IT HAS HELD THAT A
POSSIBILITY THAT PAYMENTS WILL TERMINATE BEFORE THE TOTAL REACHES THE
JURISDICTIONAL MINIMUM IS IMMATERIAL IF THE RIGHT TO ALL THE PAYMENTS
IS IN ISSUE.  BROTHERHOOD OF LOCOMOTIVE FIREMEN V. PINKSTON, SUPRA;
THOMPSON V. THOMPSON, 226 U.S. 551.  FUTURE PAYMENTS ARE NOT IN ANY
PROPER SENSE CONTINGENT, ALTHOUGH THEY MAY BE DECREASED OR CUT OFF
ALTOGETHER BY THE OPERATION OF CONDITIONS SUBSEQUENT.  THOMPSON V.
THOMPSON, SUPRA, P. 560.  AND THERE IS NO SUGGESTION THAT BY REASON OF
LIFE EXPECTANCY OR LAW OF AVERAGES THE MAXIMUM AMOUNT RECOVERABLE CAN
BE EXPECTED TO FALL BELOW THE JURISDICTIONAL MINIMUM.  CF. BROTHERHOOD
OF LOCOMOTIVE FIREMEN V. PINKSTON, SUPRA, P. 101.  MOREOVER, THE
COMPUTATION OF THE MAXIMUM AMOUNT RECOVERABLE IS NOT COMPLICATED BY THE
NECESSITY OF DETERMINING THE LIFE EXPECTANCY OF RESPONDENT.  FN3  CF.
THOMPSON V. THOMPSON, SUPRA, P. 559; BROTHERHOOD OF LOCOMOTIVE FIREMEN
V. PINKSTON, SUPRA, P. 100. 

THIRD.  RESPONDENT, AS IS HER RIGHT, UNITED STATES V. BALLARD, 322
U.S. 78, 88, AND CASES CITED, SEEKS TO SUPPORT THE ACTION OF THE
CIRCUIT COURT OF APPEALS ON OTHER GROUNDS.  BUT THOSE QUESTIONS WERE
NOT PASSED UPON BY THAT COURT NOR ADEQUATELY PRESENTED HERE.  SO WE
DEEM IT MORE APPROPRIATE TO REMAND THE CASE TO THE CIRCUIT COURT OF
APPEALS SO IT MAY CONSIDER THOSE QUESTIONS.  UNITED STATES V. BALLARD,
SUPRA.  REVERSED. 

FN1  DEATH BENEFITS ARE PROVIDED IN THE AMOUNT OF 60% OF THE AVERAGE
WEEKLY WAGES OF THE EMPLOYEE (AS COMPUTED IN ACCORDANCE WITH TENN. CODE
SEC. 6852(C)), BUT PAYMENTS MAY NOT EXCEED $18 PER WEEK, NOR CONTINUE
FOR MORE THAN 400 WEEKS.  SEC. 6880; SEC. 6883(17).  IN ADDITION THERE
IS A CEILING OF $5,000 ON TOTAL BENEFITS EXCLUSIVE OF BURIAL AND
CERTAIN OTHER EXPENSES.  SEC. 6881.  SEE HAYNES V. COLUMBIA PICTURES
CORP., 178 TENN. 648, 162 S.W.2D 383.  THE COMPLAINT ALLEGED THAT 60%
OF THE AVERAGE WEEKLY WAGES FOR THE STATUTORY PERIOD WOULD EXCEED
$5,000. 

FN2  THE CONTENTION WAS THAT PROPER VENUE LAY ONLY IN ROANE COUNTY
WHERE, IT WAS ALLEGED, THE ACCIDENT OCCURRED AND THE BUSINESS OF THE
EMPLOYER IS CONDUCTED.  IT WAS ARGUED THAT SERVICE ON THE INSURER IN
HAWKINS COUNTY DID NOT GIVE THE HAWKINS COUNTY COURT JURISDICTION OF
THE CASE. 

FN3  SEE NOTE 1, SUPRA.
..END :














CARDILLO V. LIBERTY MUTUAL CO., 330 U.S. 469 


NO. 265.  ARGUED JANUARY 10, 1947.  - DECIDED MARCH 10, 1947.  - 81 U.S.
APP. D.C. 72, 154 F.2D 529, REVERSED. 


A RESIDENT OF THE DISTRICT OF COLUMBIA WAS EMPLOYED BY A DISTRICT OF
COLUMBIA EMPLOYER, HAD PREVIOUSLY WORKED IN THE DISTRICT FOR SIX YEARS,
AND WAS SUBJECT TO ASSIGNMENT TO WORK THERE, BUT HAD BEEN WORKING FOR
OVER THREE YEARS AT QUANTICO, VIRGINIA, AND COMMUTING DAILY BETWEEN
THERE AND HIS HOME IN THE DISTRICT, WHERE HIS WIFE ALSO RESIDED.  AN
AGREEMENT BETWEEN THE EMPLOYER AND THE EMPLOYEE'S UNION BOUND THE
EMPLOYER TO FURNISH "TRANSPORTATION  ...  FOR ALL WORK OUTSIDE THE
DISTRICT OF COLUMBIA."  A FIXED SUM PER DAY WAS AGREED UPON AS
TRANSPORTATION EXPENSE TO QUANTICO AND WAS ADDED TO THE EMPLOYEE'S
PAY.  TRANSPORTATION ACTUALLY WAS PROVIDED DAILY BY COOPERATION OF
EMPLOYEES IN A CAR POOL, IN WHICH THE EMPLOYER ACQUIESCED BUT OVER
WHICH HE EXERCISED NO CONTROL.  THE EMPLOYEE WAS INJURED FATALLY IN
VIRGINIA WHILE DRIVING HIS CAR HOME FROM WORK.  HELD: 

1.  A CLAIM BY THE WIDOW FOR COMPENSATION FOR THE DEATH OF THE
EMPLOYEE WAS WITHIN THE JURISDICTION OF THE DEPUTY COMMISSIONER UNDER
THE DISTRICT OF COLUMBIA WORKMEN'S COMPENSATION ACT.  PP. 473-477. 

2.  AS HERE APPLIED, THE DISTRICT OF COLUMBIA ACT SATISFIES ANY
CONSTITUTIONAL REQUIREMENTS OF DUE PROCESS OR FULL FAITH AND CREDIT. 
P. 476. 

3.  UPON THE PARTICULAR FACTS OF THIS CASE, THE DEPUTY COMMISSIONER'S
FINDING THAT THE DEATH OF THE EMPLOYEE "AROSE OUT OF AND IN THE COURSE
OF EMPLOYMENT" WAS SUPPORTED BY EVIDENCE AND NOT INCONSISTENT WITH THE
LAW; IT WAS THEREFORE CONCLUSIVE AND THE COMPENSATION AWARD MUST BE
SUSTAINED.  PP. 477-485. 

(A)  THE DEPUTY COMMISSIONER'S CONCLUSION IN THIS CASE THAT THE
EMPLOYER HAD AGREED TO FURNISH TRANSPORTATION TO AND FROM WORK AND HAD
PAID THE EXPENSE OF TRANSPORTATION IN LIEU OF ACTUALLY SUPPLYING THE
TRANSPORTATION ITSELF, AND THAT THE CASE THEREFORE WAS WITHIN A
RECOGNIZED EXCEPTION TO THE GENERAL RULE THAT INJURIES RECEIVED BY AN
EMPLOYEE WHILE TRAVELING BETWEEN HOME AND WORK DO NOT "ARISE OUT OF AND
IN THE COURSE OF EMPLOYMENT," WAS NOT ERRONEOUS AS A MATTER OF LAW. 
PP. 478-480. 

(B)  IN DETERMINING WHETHER AN INJURY SUFFERED BY AN EMPLOYEE WHILE
TRAVELING BETWEEN HOME AND WORK IS ONE "ARISING OUT OF AND IN THE
COURSE OF EMPLOYMENT," THE EXISTENCE OR ABSENCE OF CONTROL BY THE
EMPLOYER OVER THE ACTS AND MOVEMENTS OF THE EMPLOYEE DURING THE
TRANSPORTATION IS A FACTOR TO BE CONSIDERED BUT IS NOT DECISIVE.  PP.
480-481. 

CARDILLO, DEPUTY COMMISSIONER, UNITED STATES EMPLOYEES' COMPENSATION
COMMISSION, V. LIBERTY MUTUAL INSURANCE CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

AN EMPLOYER AND ITS INSURANCE CARRIER BROUGHT SUIT TO SET ASIDE AN
ORDER OF THE DEPUTY COMMISSIONER AWARDING COMPENSATION TO A CLAIMANT
UNDER THE DISTRICT OF COLUMBIA WORKMEN'S COMPENSATION ACT.  THE
DISTRICT COURT DISMISSED THE COMPLAINT.  THE COURT OF APPEALS
REVERSED.  81 U.S. APP. D.C. 72, 154 F.2D 529.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 698.  REVERSED, P. 485. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONER, DEPUTY COMMISSIONER OF THE UNITED STATES EMPLOYEES'
COMPENSATION COMMISSION, ISSUED AN ORDER UNDER THE DISTRICT OF COLUMBIA
WORKMEN'S COMPENSATION ACT  FN1  AWARDING COMPENSATION TO THE WIDOW OF
ONE CLARENCE H. TICER.  IT WAS SPECIFICALLY FOUND THAT THE INJURY WHICH
LED TO TICER'S DEATH "AROSE OUT OF AND IN THE COURSE OF THE
EMPLOYMENT."  THE PROPRIETY AND EFFECT OF THAT FINDING ARE THE MAIN
FOCAL POINTS OF OUR INQUIRY IN THIS CASE. 

PROVIDES IN PART THAT "THE PROVISIONS OF THE ACT ENTITLED
'LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT,'...  SHALL APPLY
IN RESPECT TO THE INJURY OR DEATH OF AN EMPLOYEE OF AN EMPLOYER
CARRYING ON ANY EMPLOYMENT IN THE DISTRICT OF COLUMBIA, IRRESPECTIVE OF
THE PLACE WHERE THE INJURY OR DEATH OCCURS."  THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT,  FN2  SEC. 2(2), IN TURN DEFINES THE
TERM "INJURY" TO INCLUDE "ACCIDENTAL INJURY OR DEATH ARISING OUT OF AND
IN THE COURSE OF EMPLOYMENT, ..."  A FINDING THAT THE INJURY OR DEATH
WAS ONE "ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT" IS THEREFORE
ESSENTIAL TO AN AWARD OF COMPENSATION UNDER THE DISTRICT OF COLUMBIA
WORKMEN'S COMPENSATION ACT. 

IN SUPPORT OF HIS ORDER IN THIS CASE THE DEPUTY COMMISSIONER MADE
VARIOUS FINDINGS OF FACT.  THESE MAY BE SUMMARIZED AS FOLLOWS: 

TICER AND HIS WIFE WERE RESIDENTS OF THE DISTRICT OF COLUMBIA.  HE HAD
BEEN REGULARLY EMPLOYED SINCE ABOUT 1934  FN3  AS AN ELECTRICIAN BY
E.C. ERNST, INC., A CONTRACTOR ENGAGED IN ELECTRICAL CONSTRUCTION WORK
IN THE DISTRICT OF COLUMBIA AND SURROUNDING AREAS.  IN NOVEMBER, 1940,
TICER WAS TRANSFERRED BY HIS EMPLOYER FROM A PROJECT IN THE DISTRICT OF
COLUMBIA TO A PROJECT AT THE QUANTICO MARINE BASE AT QUANTICO,
VIRGINIA.  HIS WORK AT THE MARINE BASE CONTINUED FOR OVER THREE YEARS
UNTIL THE TIME OF HIS INJURY IN DECEMBER, 1943. 

THERE WAS IN EFFECT AT ALL TIMES AN AGREEMENT BETWEEN THE ELECTRICAL
WORKERS' UNION AND THE EMPLOYER.  SECTION 15(B) OF THIS AGREEMENT
PROVIDED THAT "TRANSPORTATION AND ANY NECESSARY EXPENSE SUCH AS BOARD
AND LODGING SHALL BE FURNISHED (BY THE EMPLOYER) FOR ALL WORK OUTSIDE
THE DISTRICT OF COLUMBIA."  THE SUM OF $2 A DAY WAS FIXED BY THE
PARTIES TO THIS AGREEMENT AS TRANSPORTATION EXPENSE AND REPRESENTED THE
APPROXIMATE COST OF TRAVEL FROM THE DISTRICT OF COLUMBIA TO THE
QUANTICO MARINE BASE AND RETURN.  THIS SUM WAS PAID TO TICER AND OTHERS
IN ADDITION TO THE REGULAR HOURLY RATE OF PAY.  AND IT WAS PAID IN LIEU
OF THE EMPLOYER'S FURNISHING TRANSPORTATION. 

BECAUSE THE JOB SITE AT THE MARINE BASE WAS SEVERAL MILES AWAY FROM
THE QUANTICO BUS OR TRAIN TERMINAL, IT WAS NECESSARY FOR TICER AND HIS
CO-WORKERS TO DRIVE THEIR OWN AUTOMOBILES TO AND FROM WORK.  THE
EMPLOYEES FORMED A CAR POOL.  EACH MORNING THEY STARTED FROM THEIR
RESPECTIVE HOMES IN THEIR OWN AUTOMOBILES AND DROVE TO A DESIGNATED
MEETING PLACE AT ROACHES RUN, VIRGINIA.  FROM THAT POINT THEY WOULD
PROCEED IN ONE CAR TO THE JOB SITE AT THE MARINE BASE.  THIS PROCEDURE
WAS REPEATED IN REVERSE IN THE EVENING.  THE WORKERS ALTERNATED IN THE
USE OF THE CARS BETWEEN ROACHES RUN AND THE JOB SITE.  NON-MEMBERS OF
THE CAR POOL EACH PAID THE CAR OWNER $1 FOR THE ROUND TRIP. 

THE EMPLOYER WAS AWARE OF THE MEANS OF TRANSPORTATION BEING USED AND
ACQUIESCED THEREIN.  ON DECEMBER 13, 1943, TICER WAS DRIVING HIS CAR ON
A DIRECT ROUTE FROM HIS PLACE OF EMPLOYMENT TO HIS HOME, FOLLOWING THE
CLOSE OF THE DAY'S WORK.  FOUR CO-WORKERS WERE RIDING WITH HIM, TWO OF
THEM BEING NON-MEMBERS OF THE CAR POOL.  AS THE CAR APPROACHED FORT
BELVOIR, VIRGINIA, A LARGE STONE, WHICH CAME FROM UNDER THE REAR WHEEL
OF A PASSING TRUCK, CRASHED THROUGH THE WINDSHIELD OF THE CAR.  IT
STRUCK TICER'S HEAD, CRUSHING HIS SKULL.  DEATH RESULTED FOUR DAYS
LATER. 

TICER'S WIDOW PRESENTED A CLAIM FOR COMPENSATION.  AT THE HEARING
BEFORE THE DEPUTY COMMISSIONER, THE EMPLOYER AND THE INSURANCE CARRIER
CONTENDED THAT THE VIRGINIA COMPENSATION COMMISSION HAD SOLE
JURISDICTION OVER THE CLAIM AND THAT TICER'S INJURY DID NOT ARISE OUT
OF OR IN THE COURSE OF HIS EMPLOYMENT.  THE DEPUTY COMMISSIONER RULED
AGAINST THESE CONTENTIONS.  AFTER MAKING THE FOREGOING FINDINGS, HE
ENTERED AN ORDER AWARDING DEATH BENEFITS AND FUNERAL EXPENSES TO THE
CLAIMANT. 

THE EMPLOYER AND THE INSURANCE CARRIER THEN BROUGHT THIS ACTION IN
THE DISTRICT COURT TO SET ASIDE THE ORDER OF THE DEPUTY COMMISSIONER. 
THEY RENEWED THEIR JURISDICTIONAL OBJECTION AND ALLEGED A LACK OF
SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDING THAT TICER'S INJURY AROSE
OUT OF AND IN THE COURSE OF HIS EMPLOYMENT.  THE DISTRICT COURT
DISMISSED THE COMPLAINT, HOLDING THAT THE DEPUTY COMMISSIONER'S
FINDINGS WERE SUPPORTED BY EVIDENCE IN THE RECORD AND THAT THE
COMPENSATION ORDER WAS IN ALL RESPECTS IN ACCORDANCE WITH LAW.  ON
APPEAL, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA REVERSED, ONE
JUSTICE DISSENTING.  81 U.S. APP. D.C. 72, 154 F.2D 529.  WITHOUT
PASSING UPON THE JURISDICTIONAL ISSUE, THE COURT HELD THAT TICER'S
INJURY HAD NOT ARISEN OUT OF AND IN THE COURSE OF HIS EMPLOYMENT.  IT
FELT THAT TICER HAD BECOME ENTIRELY FREE OF HIS EMPLOYER'S CONTROL AT
THE CLOSE OF THE DAY'S WORK AT THE MARINE BASE AND THAT HE HAD
THEREAFTER ASSUMED HIS OWN RISK IN SUBJECTING HIMSELF TO THE HAZARDS OF
THE HIGHWAY.  WE GRANTED CERTIORARI ON A PETITION ALLEGING A CONFLICT
WITH THE DECISION OF THIS COURT IN VOEHL V. INDEMNITY INS. CO., 288
U.S. 162. 

AS NOTED, THE COURT OF APPEALS DEEMED IT UNNECESSARY TO DISPOSE OF
THE QUESTION WHETHER THE DEPUTY COMMISSIONER HAD JURISDICTION OVER THE
INSTANT CLAIM.  BUT IN REVIEWING AN ADMINISTRATIVE ORDER, IT IS
ORDINARILY PREFERABLE, WHERE THE ISSUE IS RAISED AND WHERE THE RECORD
PERMITS AN ADJUDICATION, FOR A FEDERAL COURT FIRST TO SATISFY ITSELF
THAT THE ADMINISTRATIVE AGENCY OR OFFICER HAD JURISDICTION OVER THE
MATTER IN DISPUTE.  AT THE SAME TIME, HOWEVER, IT IS NEEDLESS TO REMAND
THIS CASE TO THE COURT OF APPEALS FOR A DETERMINATION OF THE
JURISDICTIONAL ISSUE.  THAT ISSUE WAS CONSIDERED AND DETERMINED BY THE
DEPUTY COMMISSIONER, WHO WAS IN TURN SUSTAINED BY THE DISTRICT COURT. 
THE FACTS PERTINENT TO THAT ISSUE ARE NOT SERIOUSLY DISPUTED AND THE
MATTER HAS BEEN FULLY BRIEFED AND ARGUED BEFORE US.  A REMAND UNDER
SUCH CIRCUMSTANCES IS NOT WARRANTED.  WE ACCORDINGLY TURN TO A
CONSIDERATION OF THE JURISDICTIONAL ISSUE. 

WE ARE AIDED HERE, OF COURSE, BY THE PROVISION OF SEC. 20 OF THE
LONGSHOREMEN'S ACT THAT, IN PROCEEDINGS UNDER THAT ACT, JURISDICTION IS
TO BE "PRESUMED, IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE
CONTRARY" - A PROVISION WHICH APPLIES WITH EQUAL FORCE TO PROCEEDINGS
UNDER THE DISTRICT OF COLUMBIA ACT.  AND THE DEPUTY COMMISSIONER'S
FINDINGS AS TO JURISDICTION ARE ENTITLED TO GREAT WEIGHT AND WILL BE
REJECTED ONLY WHERE THERE IS APPARENT ERROR.  DAVIS V. DEPARTMENT OF
LABOR, 317 U.S. 249, 256-257.  HIS CONCLUSION THAT JURISDICTION EXISTS
IN THIS CASE IS SUPPORTED BOTH BY THE STATUTORY PROVISIONS AND BY THE
EVIDENCE IN THE RECORD. 

THE JURISDICTION OF THE DEPUTY COMMISSIONER TO CONSIDER THE CLAIM IN
THIS CASE RESTS UPON THE STATEMENT IN THE DISTRICT OF COLUMBIA ACT THAT
IT "SHALL APPLY IN RESPECT TO THE INJURY OR DEATH OF AN EMPLOYEE OF AN
EMPLOYER CARRYING ON ANY EMPLOYMENT IN THE DISTRICT OF COLUMBIA,
IRRESPECTIVE OF THE PLACE WHERE THE INJURY OR DEATH OCCURS; EXCEPT THAT
IN APPLYING SUCH PROVISIONS THE TERM 'EMPLOYER' SHALL BE HELD TO MEAN
EVERY PERSON CARRYING ON ANY EMPLOYMENT IN THE DISTRICT OF COLUMBIA,
AND THE TERM 'EMPLOYEE' SHALL BE HELD TO MEAN EVERY EMPLOYEE OF ANY
SUCH PERSON."  THERE IS NO QUESTION HERE BUT THAT TICER WAS EMPLOYED BY
A DISTRICT OF COLUMBIA EMPLOYER; THE LATTER HAD ITS PLACE OF BUSINESS
IN THE DISTRICT AND ENGAGED IN CONSTRUCTION WORK IN THE DISTRICT, AS
WELL AS IN SURROUNDING AREAS.  BUT THE CONTENTION IS MADE THAT, DESPITE
THE BROAD SWEEP OF THE STATUTORY LANGUAGE, THE ACT APPLIES ONLY WHERE
THE EMPLOYEE, DURING THE WHOLE OF HIS EMPLOYMENT, SPENT MORE TIME
WORKING WITHIN THE DISTRICT THAN HE SPENT WORKING OUTSIDE THE
DISTRICT.  USING THAT CRITERION, IT IS SAID THAT THE ACT IS
INAPPLICABLE TO THIS CASE SINCE TICER WAS EMPLOYED ON A CONSTRUCTION
JOB IN VIRGINIA CONTINUOUSLY FOR OVER THREE YEARS PRIOR TO THE ACCIDENT
AND DID NOTHING WITHIN THE DISTRICT FOR HIS EMPLOYER DURING THAT
PERIOD.  THE IMPLICATION IS THAT ONLY THE VIRGINIA WORKMEN'S
COMPENSATION LAW IS APPLICABLE. 

BUT THE RECORD INDICATES THAT BOTH TICER AND HIS WIFE WERE RESIDENTS
OF THE DISTRICT.  HE HAD BEEN HIRED IN THE DISTRICT BY HIS EMPLOYER IN
1934 AND HAD WORKED ON VARIOUS PROJECTS IN AND AROUND THE DISTRICT FROM
THAT TIME UNTIL 1940, WHEN HE WAS ASSIGNED TO THE QUANTICO MARINE BASE
PROJECT.  WHILE AT THE MARINE BASE, HE WAS UNDER ORDERS FROM THE
DISTRICT AND WAS SUBJECT TO BEING TRANSFERRED AT ANYTIME TO A PROJECT
IN THE DISTRICT.  HIS PAY WAS EITHER CARRIED TO HIM FROM THE DISTRICT
OR WAS GIVEN TO HIM DIRECTLY IN THE DISTRICT.  AND HE COMMUTED DAILY
BETWEEN HIS HOME IN THE DISTRICT AND THE MARINE BASE PROJECT. 

WE HOLD THAT THE JURISDICTIONAL OBJECTION IS WITHOUT MERIT IN LIGHT
OF THESE FACTS.  NOTHING IN THE HISTORY, THE PURPOSE OR THE LANGUAGE OF
THE ACT WARRANTS ANY LIMITATION WHICH WOULD PRECLUDE ITS APPLICATION TO
THIS CASE.  THE ACT IN SO MANY WORDS APPLIES TO EVERY EMPLOYEE OF AN
EMPLOYER CARRYING ON ANY EMPLOYMENT IN THE DISTRICT OF COLUMBIA,
"IRRESPECTIVE OF THE PLACE WHERE THE INJURY OR DEATH OCCURS."  THOSE
WORDS LEAVE NO POSSIBLE ROOM FOR READING IN AN IMPLIED EXCEPTION
EXCLUDING THOSE EMPLOYEES LIKE TICER WHO HAVE SUBSTANTIAL BUSINESS AND
PERSONAL CONNECTIONS IN THE DISTRICT AND WHO ARE INJURED OUTSIDE THE
DISTRICT.  WHETHER THIS LANGUAGE COVERS EMPLOYEES WHO ARE MORE REMOTELY
RELATED TO THE DISTRICT IS A MATTER WHICH WE NEED NOT NOW DISCUSS AND
ANY ARGUMENTS BASED UPON SUCH HYPOTHETICAL SITUATIONS ARE WITHOUT
WEIGHT IN THIS CASE. 

NOR DOES ANY STATUTORY POLICY SUGGEST ITSELF TO JUSTIFY THE PROPOSED
EXCEPTION.  A PRIME PURPOSE OF THE ACT IS TO PROVIDE RESIDENTS OF THE
DISTRICT OF COLUMBIA WITH A PRACTICAL AND EXPEDITIOUS REMEDY FOR THEIR
INDUSTRIAL ACCIDENTS AND TO PLACE ON DISTRICT OF COLUMBIA EMPLOYERS A
LIMITED AND DETERMINATE LIABILITY.  SEE BRADFORD ELEC.  CO. V. CLAPPER,
286 U.S. 145, 159.  THE DISTRICT IS RELATIVELY QUITE SMALL IN AREA;
MANY EMPLOYERS CARRYING ON BUSINESS IN THE DISTRICT ASSIGN SOME
EMPLOYEES TO DO WORK OUTSIDE THE GEOGRAPHICAL BOUNDARIES, ESPECIALLY IN
NEARBY VIRGINIA AND MARYLAND AREAS.  WHEN SUCH EMPLOYEES RESIDE IN THE
DISTRICT AND ARE INJURED WHILE PERFORMING THOSE OUTSIDE ASSIGNMENTS,
THEY COME WITHIN THE INTENT AND DESIGN OF THE STATUTE TO THE SAME
EXTENT AS THOSE WHOSE WORK AND INJURIES OCCUR SOLELY WITHIN THE
DISTRICT.  IN OTHER WORDS, THE DISTRICT'S LEGITIMATE INTEREST IN
PROVIDING ADEQUATE WORKMEN'S COMPENSATION MEASURES FOR ITS RESIDENTS
DOES NOT TURN ON THE FORTUITOUS CIRCUMSTANCE OF THE PLACE OF THEIR WORK
OR INJURY.  NOR DOES IT VARY WITH THE AMOUNT OR PERCENTAGE OF WORK
PERFORMED WITHIN THE DISTRICT.  RATHER IT DEPENDS UPON SOME SUBSTANTIAL
CONNECTION BETWEEN THE DISTRICT AND THE PARTICULAR EMPLOYEE-EMPLOYER
RELATIONSHIP, A CONNECTION WHICH IS PRESENT IN THIS CASE.  SUCH HAS
BEEN THE ESSENCE OF PRIOR HOLDINGS OF THE COURT OF APPEALS.  B.F.
GOODRICH CO. V. BRITTON, 78 U.S. APP. D.C. 221, 139 F.2D 362; TRAVELERS
INS. CO. V. CARDILLO, 78 U.S. APP. D.C. 392, 141 F.2D 362; TRAVELERS
INS. CO. V. CARDILLO, 78 U.S. APP. D.C. 394, 141 F.2D 364.  AND AS SO
APPLIED, THE STATUTE FULLY SATISFIES ANY CONSTITUTIONAL QUESTIONS OF
DUE PROCESS OR FULL FAITH AND CREDIT.  ALASKA PACKERS ASSN. V.
INDUSTRIAL ACCIDENT COMMISSION, 294 U.S. 532.  CF. BRADFORD ELEC.  CO.
V. CLAPPER, SUPRA. 

HENCE WE CONCLUDE THAT THE DEPUTY COMMISSIONER HAD JURISDICTION UNDER
THE DISTRICT OF COLUMBIA ACT TO ENTERTAIN A CLAIM BY THE WIDOW OF AN
EMPLOYEE WHO HAD BEEN A RESIDENT OF THE DISTRICT, WHO HAD BEEN EMPLOYED
BY A DISTRICT EMPLOYER AND WHO HAD BEEN SUBJECT TO WORK ASSIGNMENTS IN
THE DISTRICT.  WE ACCORDINGLY TURN TO A CONSIDERATION OF THE PROPRIETY
AND EFFECT OF THE DEPUTY COMMISSIONER'S FINDING THAT TICER'S INJURY
AROSE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT. 

OUR APPROACH TO THAT PROBLEM GROWS OUT OF THE PROVISIONS OF THE
LONGSHOREMEN'S ACT, AS MADE APPLICABLE BY THE DISTRICT OF COLUMBIA
ACT.  SECTION 19(A) OF THE LONGSHOREMEN'S ACT PROVIDES FOR THE FILING
OF A "CLAIM FOR COMPENSATION" AND SPECIFIES THAT "THE DEPUTY
COMMISSIONER SHALL HAVE FULL POWER AND AUTHORITY TO HEAR AND DETERMINE
ALL QUESTIONS IN RESPECT OF SUCH CLAIM."  THUS QUESTIONS AS TO WHETHER
AN INJURY AROSE OUT OF AND IN THE COURSE OF EMPLOYMENT NECESSARILY FALL
WITHIN THE SCOPE OF THE DEPUTY COMMISSIONER'S AUTHORITY.  SECTION 21(B)
THEN PROVIDES THAT COMPENSATION ORDERS MAY BE SUSPENDED OR SET ASIDE
THROUGH INJUNCTION PROCEEDINGS INSTITUTED IN THE FEDERAL DISTRICT
COURTS "IF NOT IN ACCORDANCE WITH LAW."    IN DETERMINING WHETHER A
PARTICULAR INJURY AROSE OUT OF AND IN THE COURSE OF EMPLOYMENT, THE
DEPUTY COMMISSIONER MUST NECESSARILY DRAW AN INFERENCE FROM WHAT HE HAS
FOUND TO BE THE BASIC FACTS.  THE PROPRIETY OF THAT INFERENCE, OF
COURSE, IS VITAL TO THE VALIDITY OF THE ORDER SUBSEQUENTLY ENTERED. 
BUT THE SCOPE OF JUDICIAL REVIEW OF THAT INFERENCE IS SHARPLY LIMITED
BY THE FOREGOING STATUTORY PROVISIONS.  IF SUPPORTED BY EVIDENCE AND
NOT INCONSISTENT WITH THE LAW, THE DEPUTY COMMISSIONER'S INFERENCE THAT
AN INJURY DID OR DID NOT ARISE OUT OF AND IN THE COURSE OF EMPLOYMENT
IS CONCLUSIVE.  NO REVIEWING COURT CAN THEN SET ASIDE THAT INFERENCE
BECAUSE THE OPPOSITE ONE IS THOUGHT TO BE MORE REASONABLE; NOR CAN THE
OPPOSITE INFERENCE BE SUBSTITUTED BY THE COURT BECAUSE OF A BELIEF THAT
THE ONE CHOSEN BY THE DEPUTY COMMISSIONER IS FACTUALLY QUESTIONABLE. 
VOEHL V. INDEMNITY INS. CO., SUPRA, 166; DEL VECCHIO V. BOWERS, 296
U.S. 280, 287; SOUTH CHICAGO CO. V. BASSETT, 309 U.S. 251, 257-258;
PARKER V. MOTOR BOAT SALES, 314 U.S. 244, 246; DAVIS V. DEPARTMENT OF
LABOR, SUPRA, 256; NORTON V. WARNER CO., 321 U.S. 565, 568-569. 

IT MATTERS NOT THAT THE BASIC FACTS FROM WHICH THE DEPUTY
COMMISSIONER DRAWS THIS INFERENCE ARE UNDISPUTED RATHER THAN
CONTROVERTED.  SEE BOEHM V. COMMISSIONER, 326 U.S. 287, 293.  IT IS
LIKEWISE IMMATERIAL THAT THE FACTS PERMIT THE DRAWING OF DIVERSE
INFERENCES.  THE DEPUTY COMMISSIONER ALONE IS CHARGED WITH THE DUTY OF
INITIALLY SELECTING THE INFERENCE WHICH SEEMS MOST REASONABLE AND HIS
CHOICE, IF OTHERWISE SUSTAINABLE, MAY NOT BE DISTURBED BY A REVIEWING
COURT.  DEL VECCHIO V. BOWERS, SUPRA, 287.  MOREOVER, THE FACT THAT THE
INFERENCE OF THE TYPE HERE MADE BY THE DEPUTY COMMISSIONER INVOLVES AN
APPLICATION OF A BROAD STATUTORY TERM OR PHRASE TO A SPECIFIC SET OF
FACTS GIVES RISE TO NO GREATER SCOPE OF JUDICIAL REVIEW.  LABOR BOARD
V. HEARST PUBLICATIONS, 322 U.S. 111, 131; COMMISSIONER V. SCOTTISH
AMERICAN CO., 323 U.S. 119, 124; UNEMPLOYMENT COMPENSATION COMMISSION
V. ARAGON, 329 U.S. 143, 153-154.  EVEN IF SUCH AN INFERENCE BE
CONSIDERED MORE LEGAL THAN FACTUAL IN NATURE, THE REVIEWING COURT'S
FUNCTION IS EXHAUSTED WHEN IT BECOMES EVIDENT THAT THE DEPUTY
COMMISSIONER'S CHOICE HAS SUBSTANTIAL ROOTS IN THE EVIDENCE AND IS NOT
FORBIDDEN BY THE LAW.  SUCH IS THE RESULT OF THE STATUTORY PROVISION
PERMITTING THE SUSPENSION OR SETTING ASIDE OF COMPENSATION ORDERS ONLY
"IF NOT IN ACCORDANCE WITH LAW." 

OUR ATTENTION MUST THEREFORE BE CAST UPON THE INFERENCE DRAWN BY THE
DEPUTY COMMISSIONER IN THIS CASE THAT TICER'S INJURY AND DEATH DID
ARISE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT.  IF THERE IS FACTUAL
AND LEGAL SUPPORT FOR THAT CONCLUSION, OUR TASK IS AT AN END. 

A REASONABLE LEGAL BASIS FOR THE DEPUTY COMMISSIONER'S ACTION IN THIS
RESPECT IS CLEAR.  THE STATUTORY PHRASE "ARISING OUT OF AND IN THE
COURSE OF EMPLOYMENT," WHICH APPEARS IN MOST WORKMEN'S COMPENSATION
LAWS, IS DECEPTIVELY SIMPLE AND LITIGIOUSLY PROLIFIC.  FN4  AS APPLIED
TO INJURIES RECEIVED BY EMPLOYEES WHILE TRAVELING BETWEEN THEIR HOMES
AND THEIR REGULAR PLACES OF WORK, HOWEVER, THIS PHRASE HAS GENERALLY
BEEN CONSTRUED TO PRECLUDE COMPENSATION.  VOEHL V. INDEMNITY INS. CO.,
SUPRA, 169.  SUCH INJURIES ARE SAID NOT TO ARISE OUT OF AND IN THE
COURSE OF EMPLOYMENT; RATHER THEY ARISE OUT OF THE ORDINARY HAZARDS OF
THE JOURNEY, HAZARDS WHICH ARE FACED BY ALL TRAVELERS AND WHICH ARE
UNRELATED TO THE EMPLOYER'S BUSINESS.  BUT CERTAIN EXCEPTIONS TO THIS
GENERAL RULE HAVE COME TO BE RECOGNIZED.  THESE EXCEPTIONS RELATE TO
SITUATIONS WHERE THE HAZARDS OF THE JOURNEY MAY FAIRLY BE REGARDED AS
THE HAZARDS OF THE SERVICE.  THEY ARE THUS DEPENDENT UPON THE NATURE
AND CIRCUMSTANCES OF THE PARTICULAR EMPLOYMENT AND NECESSITATE A
CAREFUL EVALUATION OF THE EMPLOYMENT TERMS. 

UNDER THE DISTRICT OF COLUMBIA WORKMEN'S COMPENSATION ACT, AT LEAST
FOUR EXCEPTIONS HAVE BEEN RECOGNIZED BY THE COURT OF APPEALS:  (1)
WHERE THE EMPLOYMENT REQUIRES THE EMPLOYEE TO TRAVEL ON THE HIGHWAYS;
(2) WHERE THE EMPLOYER CONTRACTS TO AND DOES FURNISH TRANSPORTATION TO
AND FROM WORK; (3) WHERE THE EMPLOYEE IS SUBJECT TO EMERGENCY CALLS, AS
IN THE CASE OF FIREMEN; (4) WHERE THE EMPLOYEE USES THE HIGHWAY TO DO
SOMETHING INCIDENTAL TO HIS EMPLOYMENT, WITH THE KNOWLEDGE AND APPROVAL
OF THE EMPLOYER.  WARD V. CARDILLO, 77 U.S. APP. D.C. 343, 345, 135
F.2D 260, 262.  SEE ALSO LAKE V. BRIDGEPORT, 102 CONN. 337, 128 A.
782.  IN PERFORMING HIS FUNCTION OF DECIDING WHETHER AN INJURY,
INCURRED WHILE TRAVELING, AROSE OUT OF AND IN THE COURSE OF EMPLOYMENT,
THE DEPUTY COMMISSIONER MUST DETERMINE THE APPLICABILITY OF THESE
EXCEPTIONS TO THE GENERAL RULE.  HERE HE DECIDED THAT THE SECOND
EXCEPTION WAS APPLICABLE, THAT TICER'S EMPLOYER HAD CONTRACTED TO
FURNISH TRANSPORTATION TO AND FROM WORK AND HAD PAID THE EXPENSE OF
TRANSPORTATION IN LIEU OF ACTUALLY SUPPLYING THE TRANSPORTATION
ITSELF.  WE CANNOT SAY THAT HE WAS WRONG AS A MATTER OF LAW. 

THERE ARE NO RIGID LEGAL PRINCIPLES TO GUIDE THE DEPUTY COMMISSIONER
IN DETERMINING WHETHER THE EMPLOYER CONTRACTED TO AND DID FURNISH
TRANSPORTATION TO AND FROM WORK.  "NO EXACT FORMULA CAN BE LAID DOWN
WHICH WILL AUTOMATICALLY SOLVE EVERY CASE."  CUDAHY PACKING CO. V.
PARRAMORE, 263 U.S. 418, 424; VOEHL V. INDEMNITY INS. CO., SUPRA, 169. 
EACH EMPLOYMENT RELATIONSHIP MUST BE PERUSED TO DISCOVER WHETHER THE
EMPLOYER, BY EXPRESS AGREEMENT OR BY A COURSE OF DEALING, CONTRACTED TO
AND DID FURNISH THIS TYPE OF TRANSPORTATION.  FOR THAT REASON IT WAS
ERROR FOR THE COURT OF APPEALS IN THIS CASE TO EMPHASIZE THAT THE
EMPLOYER MUST HAVE CONTROL OVER THE ACTS AND MOVEMENTS OF THE EMPLOYEE
DURING THE TRANSPORTATION BEFORE IT CAN BE SAID THAT AN INJURY AROSE
OUT OF AND IN THE COURSE OF EMPLOYMENT.  THE PRESENCE OR ABSENCE OF
CONTROL IS CERTAINLY A FACTOR TO BE CONSIDERED.  BUT IT IS NOT
DECISIVE.  AN EMPLOYER MAY IN FACT FURNISH TRANSPORTATION FOR HIS
EMPLOYEES WITHOUT ACTUALLY CONTROLLING THEM DURING THE COURSE OF THE
JOURNEY OR AT THE TIME AND PLACE WHERE THE INJURY OCCURS.  WARD V.
CARDILLO, SUPRA.  AND IN SITUATIONS WHERE THE JOURNEY IS IN OTHER
RESPECTS INCIDENTAL TO THE EMPLOYMENT, THE ABSENCE OF CONTROL BY THE
EMPLOYER HAS NOT BEEN HELD TO PRECLUDE A FINDING THAT AN INJURY AROSE
OUT OF AND IN THE COURSE OF EMPLOYMENT.  SEE CUDAHY PACKING CO. V.
PARRAMORE, SUPRA; VOEHL V. INDEMNITY INS. CO., SUPRA.  FN5 

INDEED, TO IMPORT ALL THE COMMON LAW CONCEPTS OF CONTROL AND TO ERECT
THEM AS THE SOLE OR PRIME GUIDE FOR THE DEPUTY COMMISSIONER IN CASES OF
THIS NATURE WOULD BE TO ENCUMBER HIS DUTIES WITH ALL THE TECHNICALITIES
AND UNREALITIES WHICH HAVE MARKED THE USE OF THOSE CONCEPTS IN OTHER
FIELDS.  SEE LABOR BOARD V. HEARST PUBLICATIONS, SUPRA, 120-121, 125;
HUST V. MOORE-MCCORMACK LINES, 328 U.S. 707, 723-725.  THAT WE REFUSE
TO DO.  "THE MODERN DEVELOPMENT AND GROWTH OF INDUSTRY, WITH THE
CONSEQUENT CHANGES IN THE RELATIONS OF EMPLOYER AND EMPLOYEE, HAVE BEEN
SO PROFOUND IN CHARACTER AND DEGREE AS TO TAKE AWAY, IN LARGE MEASURE,
THE APPLICABILITY OF THE DOCTRINES UPON WHICH REST THE COMMON LAW
LIABILITY OF THE MASTER FOR PERSONAL INJURIES TO A SERVANT, LEAVING OF
NECESSITY A FIELD OF DEBATABLE GROUND WHERE A GOOD DEAL MUST BE
CONCEDED IN FAVOR OF FORMS OF LEGISLATION, CALCULATED TO ESTABLISH NEW
BASES OF LIABILITY MORE IN HARMONY WITH THESE CHANGED CONDITIONS." 
CUDAHY PACKING CO. V. PARRAMORE, SUPRA, 423. 

NOR IS THERE ANY OTHER FORMAL PRINCIPLE OF LAW WHICH WOULD INVALIDATE
THE CHOICE MADE BY THE DEPUTY COMMISSIONER IN THIS INSTANCE.  THE FACT
THAT TICER WAS NOT BEING PAID WAGES AT THE TIME OF THE ACCIDENT IS
CLEARLY IMMATERIAL.  CUDAHY PACKING CO. V. PARRAMORE, SUPRA.  FN6  AND
IT IS WITHOUT STATUTORY CONSEQUENCE THAT THE EMPLOYER HERE CARRIED OUT
HIS CONTRACT OBLIGATION TO FURNISH ACTUAL TRANSPORTATION BY PAYING THE
TRAVEL COSTS AND ALLOWING THE EMPLOYEES LIKE TICER TO MAKE THE JOURNEY
BY WHATEVER MEANS THEY SAW FIT.  TO BE SURE, THERE ARE MANY HOLDINGS TO
THE EFFECT THAT, WHERE THE EMPLOYER MERELY PAYS THE COSTS OF
TRANSPORTATION, AN INJURY OCCURRING DURING THE JOURNEY DOES NOT ARISE
OUT OF AND IN THE COURSE OF EMPLOYMENT; THERE MUST BE SOMETHING MORE
THAN MERE PAYMENT OF TRANSPORTATION COSTS.  FN7  BUT ASSUMING THOSE
HOLDINGS TO BE CORRECT AND ASSUMING THE DEPUTY COMMISSIONER'S FINDINGS
IN THIS CASE TO BE JUSTIFIED, THERE IS MORE HERE THAN MERE PAYMENT OF
TRANSPORTATION COSTS.  IT WAS FOUND THAT TICER'S EMPLOYER PAID THE
COSTS AS A MEANS OF CARRYING OUT ITS CONTRACT OBLIGATION TO FURNISH THE
TRANSPORTATION ITSELF.  WHERE THERE IS THAT OBLIGATION, IT BECOMES
IRRELEVANT IN THIS SETTING WHETHER THE EMPLOYER PERFORMS THE OBLIGATION
BY SUPPLYING ITS OWN VEHICLE, HIRING THE VEHICLE OF AN INDEPENDENT
CONTRACTOR, MAKING ARRANGEMENTS WITH A COMMON CARRIER, REIMBURSING
EMPLOYEES FOR THE USE OF THEIR OWN VEHICLES, OR REIMBURSING EMPLOYEES
FOR THE COSTS OF TRANSPORTATION BY ANY MEANS THEY DESIRE TO USE.  IN
OTHER WORDS, WHERE THE EMPLOYER HAS PROMISED TO PROVIDE TRANSPORTATION
TO AND FROM WORK, THE COMPENSABILITY OF THE INJURY IS IN NO WAY
DEPENDENT UPON THE METHOD OF TRAVEL WHICH IS EMPLOYED.  FN8  FROM THE
STATUTORY STANDPOINT, THE EMPLOYER IS FREE TO CARRY OUT ITS
TRANSPORTATION OBLIGATION IN ANY WAY THE PARTIES DESIRE; AND THE RIGHTS
OF THE EMPLOYEES TO COMPENSATION ARE UNAFFECTED BY THE CHOICE MADE. 

TURNING TO THE FACTUAL SUPPORT FOR THE DEPUTY COMMISSIONER'S
INFERENCE THAT TICER'S INJURY AROSE OUT OF AND IN THE COURSE OF
EMPLOYMENT, WE FIND AMPLE SUSTAINING EVIDENCE.  TICER'S EMPLOYMENT WAS
GOVERNED BY THE TERMS OF A LONG-STANDING AGREEMENT BETWEEN LOCAL UNION
NO. 26, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (OF WHICH TICER
WAS A MEMBER) AND THE INSTITUTE OF ELECTRICAL CONTRACTORS OF THE
DISTRICT OF COLUMBIA, INC. (OF WHICH THE EMPLOYER WAS A MEMBER).  RULE
15(B) OF THE AGREEMENT PROVIDED THAT "TRANSPORTATION AND ANY NECESSARY
EXPENSE SUCH AS BOARD AND LODGING SHALL BE FURNISHED FOR ALL WORK
OUTSIDE THE DISTRICT OF COLUMBIA." 

THE EMPLOYER CARRIED OUT IN DIFFERENT WAYS THIS OBLIGATION TO FURNISH
TRANSPORTATION.  ON CERTAIN CONSTRUCTION JOBS IN THE PAST, IT ACTUALLY
FURNISHED A STATION WAGON OR A PASSENGER CAR OF ITS OWN TO TRANSPORT
THE EMPLOYEES.  AT OTHER TIMES, HOWEVER, IT PAID THE EMPLOYEES AN
ALLOWANCE TO COVER THE COST OF TRANSPORTATION IN LIEU OF FURNISHING AN
AUTOMOBILE.  WHERE THE LATTER COURSE WAS FOLLOWED, THE WRITTEN CONTRACT
WAS NOT AMENDED OR CHANGED IN ANY WAY, THE EMPLOYER SIMPLY
COMMUNICATING WITH THE UNION TO ASCERTAIN THE AMOUNT NECESSARY TO
DEFRAY THE COST OF TRANSPORTATION.  THE AMOUNT AGREED UPON AFFECTED ALL
CONTRACTORS IN THE INSTITUTE; AND THE COST OF TRANSPORTATION WAS
DETERMINED BEFORE THE CONTRACTORS MADE THEIR RESPECTIVE BIDS. 

ON THE QUANTICO MARINE BASE PROJECT, THE SUM OF $2 PER DAY WAS AGREED
UPON AS THE TRANSPORTATION ALLOWANCE IN LIEU OF FURNISHING AN
AUTOMOBILE.  THIS AMOUNT WAS FIXED AFTER INVESTIGATION INTO THE COST OF
TRANSPORTATION BY RAILROAD AND WAS PAID TO EACH EMPLOYEE, IRRESPECTIVE
OF HIS RATE OF PAY, TO COVER THE COST OF TRANSPORTATION TO AND FROM THE
MARINE BASE.  NO CHANGE WAS MADE IN THE WRITTEN CONTRACT. 

THERE WAS ALSO EVIDENCE THAT THE DISTANT LOCATION OF THE MARINE BASE
PROJECT, THE HOURS OF WORK AND THE INADEQUACY OF PUBLIC TRANSPORTATION
FACILITIES ALL COMBINED TO MAKE IT ESSENTIAL, AS A PRACTICAL MATTER,
THAT THE EMPLOYER FURNISH TRANSPORTATION IN SOME MANNER IF EMPLOYEES
WERE TO BE OBTAINED FOR THE JOB.  THIS WAS NOT A CASE OF EMPLOYEES
TRAVELING IN THE SAME CITY BETWEEN HOME AND WORK.  EXTENDED CROSS
COUNTRY TRANSPORTATION WAS NECESSARY.  AND IT WAS TRANSPORTATION OF A
TYPE THAT AN EMPLOYER MIGHT FAIRLY BE EXPECTED TO FURNISH.  SUCH
EVIDENCE ILLUSTRATES THE SETTING IN WHICH THE CONTRACT WAS DRAWN. 

THE COURT OF APPEALS FELT, HOWEVER, THAT THE ORIGINAL CONTRACT TO
FURNISH TRANSPORTATION WAS NOT FOLLOWED AND THAT A NEW ORAL CONTRACT TO
PAY TRANSPORTATION EXPENSES WAS SUBSTITUTED IN ITS PLACE.  WE NEED NOT
DECIDE WHETHER THAT VIEW IS JUSTIFIED BY THE RECORD.  IT IS ENOUGH THAT
THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE DEPUTY COMMISSIONER'S VIEW
THAT THE PAYMENT OF TRANSPORTATION COSTS WAS MERELY ONE WAY OF CARRYING
OUT THE ORIGINAL CONTRACT OBLIGATION TO FURNISH THE TRANSPORTATION
ITSELF. 

WE THEREFORE HOLD THAT, UNDER THE PARTICULAR CIRCUMSTANCES OF THIS
CASE, THE DEPUTY COMMISSIONER WAS JUSTIFIED IN CONCLUDING THAT TICER'S
INJURY AND DEATH AROSE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT.  AND
SINCE THE DEPUTY COMMISSIONER HAD JURISDICTION OVER THIS CASE, THE
RESULTING AWARD OF COMPENSATION SHOULD HAVE BEEN SUSTAINED.  REVERSED. 

FN1  ACT OF MAY 17, 1928, 45 STAT. 600, D.C. CODE, 1940, SEC. 36
501. 

FN2  ACT OF MARCH 4, 1927, C. 509, 44 STAT. 1424, 33 U.S.C. SEC. 901
ET SEQ. 

FN3  THERE WAS ONE EXCEPTION.  FOR A PERIOD OF ABOUT 6 MONTHS IN 1938
OR 1939 HE WORKED FOR THE UNITED STATES GOVERNMENT. 

FN4  "THE FEW AND SEEMINGLY SIMPLE WORDS 'ARISING OUT OF AND IN THE
COURSE OF THE EMPLOYMENT' HAVE BEEN THE FRUITFUL (OR FRUITLESS) SOURCE
OF A MASS OF DECISIONS TURNING UPON NICE DISTINCTIONS AND SUPPORTED BY
REFINEMENTS SO SUBTLE AS TO LEAVE THE MIND OF THE READER IN A MAZE OF
CONFUSION.  FROM THEIR NUMBER COUNSEL CAN, IN MOST CASES, CITE WHAT
SEEMS TO BE AN AUTHORITY FOR RESOLVING IN HIS FAVOUR, ON WHICHEVER SIDE
HE MAY BE, THE QUESTION IN DISPUTE."  LORD WRENBURY IN HERBERT V. FOX &
CO. (1916) 1 A.C. 405, 419.  SEE ALSO DODD, ADMINISTRATION OF WORKMEN'S
COMPENSATION (1936), PP. 680-687; HOROVITZ, "MODERN TRENDS IN WORKMEN'S
COMPENSATION," 21 IND. L.J. 473, 497-564; HOROVITZ, INJURY AND DEATH
UNDER WORKMEN'S COMPENSATION LAWS (1944), PP. 93-173; BROWN, "'ARISING
OUT OF AND IN THE COURSE OF THE EMPLOYMENT' IN WORKMEN'S COMPENSATION
LAWS," 7 WIS. L. REV. 15, 67, 8 WIS. L. REV. 134, 217.    FN5  SEE ALSO
GAGNEBIN V. INDUSTRIAL COMM'N, 140 CAL. APP. 80, 34 P.2D 1052; KEELY V.
METROPOLITAN EDISON CO., 157 PA. SUPER.  63, 41 A.2D 420; MCKINNEY V.
DORLAC, 48 N.M. 149, 146 P.2D 867; EXELBERT V. KLEIN & KAVANAGH, 243
APP. DIV. 839, 278 N.Y.S. 377.    FN6  "NOR IS IT ('IN THE COURSE OF
EMPLOYMENT') LIMITED TO THE TIME FOR WHICH WAGES ARE PAID.  INDEED THE
FACT THAT THE WORKMAN IS PAID WAGES FOR THE TIME WHEN THE ACCIDENT
OCCURS IS OF LITTLE, IF ANY, IMPORTANCE."  BOHLEN, "A PROBLEM IN THE
DRAFTING OF WORKMEN'S COMPENSATION ACTS," 25 HARV. L. REV. 328, 401,
402.  TURNER DAY & WOOLWORTH HANDLE CO. V. PENNINGTON, 250 KY. 433, 63
S.W.2D 490. 

FN7  PUBLIC SERVICE CO. OF NORTHERN ILLINOIS V. INDUSTRIAL
COMMISSION, 370 ILL. 334, 18 N.E.2D 914; GUENESA V. RALPH V. RULON,
INC., 124 PA. SUPER.  569, 189 A. 524; REPUBLIC UNDERWRITERS V.
TERRELL, (TEX. CIVIL APP.) 126 S.W.2D 752; ORSINIE V. TORRANCE, 96
CONN. 352, 113 A. 924; KOWALEK V. NEW YORK CONSOLIDATED R. CO., 229
N.Y. 489, 128 N.E. 888; TALLON V. INTERBOROUGH RAPID TRANSIT CO., 232
N.Y. 410, 134 N.E. 327; KELLER V. REIS & DONOVAN, INC., 195 APP. DIV.
45, 185 N.Y.S. 741; LEVCHUK V. KRUG CEMENT PRODUCTS CO., 246 MICH. 589,
225 N.W. 559.  SEE ANNOTATIONS IN 20 A.L.R. 319, 49 A.L.R. 454, 63
A.L.R. 469, 87 A.L.R. 250, 100 A.L.R. 1053.  CF. NETHERTON V. COLES,
(1945) 1 ALL E.R. 227. 

FN8  SEE DONOVAN'S CASE, 217 MASS. 76, 104 N.E. 431; BRELAND V.
TRAYLOR ENGINEERING & MFG. CO., 52 CAL. APP.2D 415, 126 P.2D 455;
LEHIGH NAV. COAL CO. V. MCGONNELL, 120 N.J.L. 428, 199 A. 906;
BURCHFIELD V. DEPARTMENT OF LABOR AND INDUSTRIES, 165 WASH. 106, 4 P.2D
858; SWANSON V. LATHAM, 92 CONN. 87, 101 A. 492; CARY V. STATE
INDUSTRIAL COMMISSION, 147 OKLA. 162, 296 P. 385; WILLIAMS V. TRAVELERS
INS. CO. OF HARTFORD, CONN., (LA. APP.) 19 SO.2D 586; TURNER DAY &
WOOLWORTH HANDLE CO. V. PENNINGTON, 250 KY. 433, 63 S.W.2D 490. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON AND MR. JUSTICE BURTON DISSENT. 
..END :
























PACKARD CO. V. LABOR BOARD, 330 U.S. 485 


NO. 658.  ARGUED JANUARY 9, 1947.  - DECIDED MARCH 10, 1947.  - 157 F.2D
80, AFFIRMED. 


1.  FOREMEN AND OTHER SUPERVISORY EMPLOYEES ARE ENTITLED AS A CLASS TO
THE RIGHTS OF SELF-ORGANIZATION, COLLECTIVE BARGAINING, AND OTHER
CONCERTED ACTIVITIES ASSURED TO EMPLOYEES GENERALLY BY THE NATIONAL
LABOR RELATIONS ACT.  PP. 488-490. 

(A)  THEY ARE "EMPLOYEES" WITHIN THE MEANING OF SEC. 2(3).  P. 488. 

(B)  THEY ARE NOT EXCLUDED FROM THE TERM "EMPLOYEES" BY SEC. 2(2)
DEFINING THE TERM "EMPLOYER."  PP. 488-490. 

2.  WHEN A UNION OF SUPERVISORY EMPLOYEES HAS BEEN DULY CERTIFIED BY
THE NATIONAL LABOR RELATIONS BOARD AS A BARGAINING REPRESENTATIVE, THE
ACT REQUIRES THE EMPLOYER TO BARGAIN WITH IT. P. 490. 

3.  WHERE, AS IN THIS CASE, A DETERMINATION OF THE NATIONAL LABOR
RELATIONS BOARD UNDER SEC. 9(B) THAT A CERTAIN UNION IS AN APPROPRIATE
BARGAINING REPRESENTATIVE DOES NOT EXCEED THE BOARD'S AUTHORITY, IS
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS NOT SO ARBITRARY OR
UNREASONABLE AS TO BE ILLEGAL, IT CANNOT BE SET ASIDE BY A COURT IN AN
ENFORCEMENT PROCEEDING UNDER SEC. 10(E).  PP. 491-492. 

4.  ARGUMENTS AS TO THE WISDOM OF PERMITTING FOREMEN TO ORGANIZE
SHOULD BE ADDRESSED TO CONGRESS, NOT TO THE COURTS.  PP. 490, 493. 

PACKARD MOTOR CAR CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE CIRCUIT COURT OF APPEALS DECREED ENFORCEMENT OF AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD REQUIRING AN EMPLOYER TO BARGAIN WITH A
UNION OF FOREMEN.  157 F.2D 80.  THIS COURT GRANTED CERTIORARI.  329
U.S. 707.  AFFIRMED, P. 493. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER FOREMEN ARE ENTITLED
AS A CLASS TO THE RIGHTS OF SELF-ORGANIZATION, COLLECTIVE BARGAINING,
AND OTHER CONCERTED ACTIVITIES AS ASSURED TO EMPLOYEES GENERALLY BY THE
NATIONAL LABOR RELATIONS ACT.  THE CASE GROWS OUT OF CONDITIONS IN THE
AUTOMOTIVE INDUSTRY, AND SO FAR AS THEY ARE IMPORTANT TO THE LEGAL
ISSUES HERE THE FACTS ARE SIMPLE. 

THE PACKARD MOTOR CAR COMPANY EMPLOYS ABOUT 32,000 RANK-AND-FILE
WORKMEN.  SINCE 1937 THEY HAVE BEEN REPRESENTED BY THE UNITED
AUTOMOBILE WORKERS OF AMERICA AFFILIATED WITH THE CONGRESS OF
INDUSTRIAL ORGANIZATIONS.  THESE EMPLOYEES ARE SUPERVISED BY
APPROXIMATELY 1,100 EMPLOYEES OF FOREMAN RANK, CONSISTING OF ABOUT 125
"GENERAL FOREMEN," 643 "FOREMEN," 273 "ASSISTANT FOREMEN," AND 65
"SPECIAL ASSIGNMENT MEN."  EACH GENERAL FOREMAN IS IN CHARGE OF ONE OR
MORE DEPARTMENTS, AND UNDER HIM IN AUTHORITY ARE FOREMEN AND THEIR
ASSISTANT FOREMEN.  SPECIAL ASSIGNMENT MEN ARE DESCRIBED AS "TROUBLE
SHOOTERS." 

THE FUNCTION OF THESE FOREMEN IN GENERAL IS TYPICAL OF THE DUTIES OF
FOREMEN IN MASS-PRODUCTION INDUSTRY GENERALLY.  FOREMEN CARRY THE
RESPONSIBILITY FOR MAINTAINING QUANTITY AND QUALITY OF PRODUCTION,
SUBJECT, OF COURSE, TO THE OVERALL CONTROL AND SUPERVISION OF THE
MANAGEMENT.  HIRING IS DONE BY THE LABOR RELATIONS DEPARTMENT, AS IS
THE DISCHARGING AND LAYING OFF OF EMPLOYEES.  BUT THE FOREMEN ARE
PROVIDED WITH FORMS AND WITH DETAILED LISTS OF PENALTIES TO BE APPLIED
IN CASES OF VIOLATIONS OF DISCIPLINE, AND INITIATE RECOMMENDATIONS FOR
PROMOTION, DEMOTION AND DISCIPLINE.  ALL SUCH RECOMMENDATIONS ARE
SUBJECT TO THE REVIEWING PROCEDURE CONCERNING GRIEVANCES PROVIDED IN
THE COLLECTIVELY-BARGAINED AGREEMENT BETWEEN THE COMPANY AND THE RANK
AND-FILE UNION. 

THE FOREMEN AS A GROUP ARE HIGHLY PAID AND, UNLIKE THE WORKMEN, ARE
PAID FOR JUSTIFIABLE ABSENCE AND FOR HOLIDAYS, ARE NOT DOCKED IN PAY
WHEN TARDY, RECEIVE LONGER PAID VACATIONS, AND ARE GIVEN SEVERANCE PAY
UPON RELEASE BY THE COMPANY. 

THESE FOREMEN DETERMINED TO ORGANIZE AS A UNIT OF THE FOREMEN'S
ASSOCIATION OF AMERICA, AN UNAFFILIATED ORGANIZATION WHICH REPRESENTS
SUPERVISORY EMPLOYEES EXCLUSIVELY.  FOLLOWING THE USUAL PROCEDURE,
AFTER THE BOARD HAD DECIDED THAT "ALL GENERAL FOREMEN, FOREMEN,
ASSISTANT FOREMEN, AND SPECIAL ASSIGNMENT MEN EMPLOYED BY THE COMPANY
AT ITS PLANTS IN DETROIT, MICHIGAN, CONSTITUTE A UNIT APPROPRIATE FOR
THE PURPOSES OF COLLECTIVE BARGAINING WITHIN THE MEANING OF SECTION
9(B) OF THE ACT,"  FN1  THE FOREMEN'S ASSOCIATION WAS CERTIFIED AS THE
BARGAINING REPRESENTATIVE.  THE COMPANY ASSERTED THAT FOREMEN WERE NOT
"EMPLOYEES" ENTITLED TO THE ADVANTAGES OF THE LABOR ACT, AND REFUSED TO
BARGAIN WITH THE UNION.  AFTER HEARING ON CHARGE OF UNFAIR LABOR
PRACTICE, THE BOARD ISSUED THE USUAL CEASE-AND-DESIST ORDER.  THE
COMPANY RESISTED AND CHALLENGED VALIDITY OF THE ORDER.  THE JUDGMENT OF
THE COURT BELOW DECREED ITS ENFORCEMENT, 157 F.2D 80, AND WE GRANTED
CERTIORARI.  329 U.S. 707. 

THE ISSUE OF LAW AS TO THE POWER OF THE NATIONAL LABOR RELATIONS
BOARD UNDER THE NATIONAL LABOR RELATIONS ACT IS SIMPLE AND OUR ONLY
FUNCTION IS TO DETERMINE WHETHER THE ORDER OF THE BOARD IS AUTHORIZED
BY THE STATUTE. 

THE PRIVILEGES AND BENEFITS OF THE ACT ARE CONFERRED UPON EMPLOYEES,
AND SEC. 2(3) OF THE ACT, SO FAR AS RELEVANT, PROVIDES "THE TERM
'EMPLOYEE' SHALL INCLUDE ANY EMPLOYEE  ..."  49 STAT. 450.  THE POINT
THAT THESE FOREMEN ARE EMPLOYEES BOTH IN THE MOST TECHNICAL SENSE AT
COMMON LAW AS WELL AS IN COMMON ACCEPTANCE OF THE TERM, IS TOO OBVIOUS
TO BE LABORED.  THE COMPANY, HOWEVER, TURNS TO THE ACT'S DEFINITION OF
EMPLOYER, WHICH IT CONTENDS READS FOREMEN OUT OF THE EMPLOYEE CLASS AND
INTO THE CLASS OF EMPLOYERS.  SECTION 2(2) READS:  "THE TERM 'EMPLOYER'
INCLUDES ANY PERSON ACTING IN THE INTEREST OF AN EMPLOYER, DIRECTLY OR
INDIRECTLY  ..."  49 STAT. 450.  THE CONTEXT OF THE ACT, WE THINK,
LEAVES NO ROOM FOR A CONSTRUCTION OF THIS SECTION TO DENY THE
ORGANIZATIONAL PRIVILEGE TO EMPLOYEES BECAUSE THEY ACT IN THE INTEREST
OF AN EMPLOYER.  EVERY EMPLOYEE, FROM THE VERY FACT OF EMPLOYMENT IN
THE MASTER'S BUSINESS, IS REQUIRED TO ACT IN HIS INTEREST.  HE OWES TO
THE EMPLOYER FAITHFUL PERFORMANCE OF SERVICE IN HIS INTEREST, THE
PROTECTION OF THE EMPLOYER'S PROPERTY IN HIS CUSTODY OR CONTROL, AND
ALL EMPLOYEES MAY, AS TO THIRD PARTIES, ACT IN THE INTERESTS OF THE
EMPLOYER TO SUCH AN EXTENT THAT HE IS LIABLE FOR THEIR WRONGFUL ACTS. 
A FAMILIAR EXAMPLE WOULD BE THAT OF A TRUCK DRIVER FOR WHOSE NEGLIGENCE
THE COMPANY MIGHT HAVE TO ANSWER. 

THE PURPOSE OF SEC. 2(2) SEEMS OBVIOUSLY TO RENDER EMPLOYERS
RESPONSIBLE IN LABOR PRACTICES FOR ACTS OF ANY PERSONS PERFORMED IN
THEIR INTERESTS.  IT IS AN ADAPTATION OF THE ANCIENT MAXIM OF THE
COMMON LAW, RESPONDEAT SUPERIOR, BY WHICH A PRINCIPAL IS MADE LIABLE
FOR THE TORTIOUS ACTS OF HIS AGENT AND THE MASTER FOR THE WRONGFUL ACTS
OF HIS SERVANTS.  EVEN WITHOUT SPECIAL STATUTORY PROVISION, THE RULE
WOULD APPLY TO MANY RELATIONS.  BUT CONGRESS WAS CREATING A NEW CLASS
OF WRONGFUL ACTS TO BE KNOWN AS UNFAIR LABOR PRACTICES, AND IT COULD
NOT BE CERTAIN THAT THE COURTS WOULD APPLY THE TORT RULE OF RESPONDEAT
SUPERIOR TO THOSE DERELICTIONS.  EVEN IF IT DID, THE PROBLEM OF PROOF
AS APPLIED TO THIS KIND OF WRONGS MIGHT EASILY BE COMPLICATED BY
QUESTIONS AS TO THE SCOPE OF THE ACTOR'S AUTHORITY AND OF VARIANCE
BETWEEN HIS APPARENT AND HIS REAL AUTHORITY.  HENCE, IT WAS PROVIDED
THAT IN ADMINISTERING THIS ACT THE EMPLOYER, FOR ITS PURPOSES, SHOULD
BE NOT MERELY THE INDIVIDUAL OR CORPORATION WHICH WAS THE EMPLOYING
ENTITY, BUT ALSO OTHERS, WHETHER EMPLOYEE OR NOT, WHO ARE "ACTING IN
THE INTEREST OF AN EMPLOYER." 

EVEN THOSE WHO ACT FOR THE EMPLOYER IN SOME MATTERS, INCLUDING THE
SERVICE OF STANDING BETWEEN MANAGEMENT AND MANUAL LABOR, STILL HAVE
INTERESTS OF THEIR OWN AS EMPLOYEES.  THOUGH THE FOREMAN IS THE
FAITHFUL REPRESENTATIVE OF THE EMPLOYER IN MAINTAINING A PRODUCTION
SCHEDULE, HIS INTEREST PROPERLY MAY BE ADVERSE TO THAT OF THE EMPLOYER
WHEN IT COMES TO FIXING HIS OWN WAGES, HOURS, SENIORITY RIGHTS OR
WORKING CONDITIONS.  HE DOES NOT LOSE HIS RIGHT TO SERVE HIMSELF IN
THESE RESPECTS BECAUSE HE SERVES HIS MASTER IN OTHERS.  AND WE SEE NO
BASIS IN THIS ACT WHATEVER FOR HOLDING THAT FOREMEN ARE FORBIDDEN THE
PROTECTION OF THE ACT WHEN THEY TAKE COLLECTIVE ACTION TO PROTECT THEIR
COLLECTIVE INTERESTS. 

THE COMPANY'S ARGUMENT IS REALLY ADDRESSED TO THE UNDESIRABILITY OF
PERMITTING FOREMEN TO ORGANIZE.  IT WANTS SELFLESS REPRESENTATIVES OF
ITS INTEREST.  IT FEARS THAT IF FOREMEN COMBINE TO BARGAIN ADVANTAGES
FOR THEMSELVES, THEY WILL SOMETIMES BE GOVERNED BY INTERESTS OF THEIR
OWN OR OF THEIR FELLOW FOREMEN, RATHER THAN BY THE COMPANY'S INTEREST. 
THERE IS NOTHING NEW IN THIS ARGUMENT.  IT IS ROOTED IN THE
MISCONCEPTION THAT BECAUSE THE EMPLOYER HAS THE RIGHT TO WHOLEHEARTED
LOYALTY IN THE PERFORMANCE OF THE CONTRACT OF EMPLOYMENT, THE EMPLOYEE
DOES NOT HAVE THE RIGHT TO PROTECT HIS INDEPENDENT AND ADVERSE INTEREST
IN THE TERMS OF THE CONTRACT ITSELF AND THE CONDITIONS OF WORK.  BUT
THE EFFECT OF THE NATIONAL LABOR RELATIONS ACT IS OTHERWISE, AND IT IS
FOR CONGRESS, NOT FOR US, TO CREATE EXCEPTIONS OR QUALIFICATIONS AT
ODDS WITH ITS PLAIN TERMS. 

MOREOVER, THE COMPANY CONCEDES THAT FOREMEN HAVE A RIGHT TO
ORGANIZE.  WHAT IT DENIES IS THAT THE STATUTE COMPELS IT TO RECOGNIZE
THE UNION.  IN OTHER WORDS, IT WANTS TO BE FREE TO FIGHT THE FOREMEN'S
UNION IN THE WAY THAT COMPANIES FOUGHT OTHER UNIONS BEFORE THE LABOR
ACT.  BUT THERE IS NOTHING IN THE ACT WHICH INDICATES THAT CONGRESS
INTENDED TO DENY ITS BENEFITS TO FOREMEN AS EMPLOYEES, IF THEY CHOOSE
TO BELIEVE THAT THEIR INTERESTS AS EMPLOYEES WOULD BE BETTER SERVED BY
ORGANIZATION THAN BY INDIVIDUAL COMPETITION.  FN2  N.L.R.B. V. SKINNER
& KENNEDY STATIONERY CO., 113 F.2D 667; SEE N.L.R.B. V. ARMOUR & CO.,
154 F.2D 570, 574. 

THERE IS NO MORE REASON TO CONCLUDE THAT THE LAW PROHIBITS FOREMEN AS
A CLASS FROM CONSTITUTING AN APPROPRIATE BARGAINING UNIT THAN THERE IS
FOR CONCLUDING THAT THEY ARE NOT WITHIN THE ACT AT ALL.  SECTION 9(B)
OF THE ACT CONFERS UPON THE BOARD A BROAD DISCRETION TO DETERMINE
APPROPRIATE UNITS.  IT READS, "THE BOARD SHALL DECIDE IN EACH CASE
WHETHER, IN ORDER TO INSURE TO EMPLOYEES THE FULL BENEFIT OF THEIR
RIGHT TO SELF-ORGANIZATION AND TO COLLECTIVE BARGAINING, AND OTHERWISE
TO EFFECTUATE THE POLICIES OF THIS ACT, THE UNIT APPROPRIATE FOR THE
PURPOSES OF COLLECTIVE BARGAINING SHALL BE THE EMPLOYER UNIT, CRAFT
UNIT, PLANT UNIT, OR SUBDIVISION THEREOF."  49 STAT. 453.  OUR POWER OF
REVIEW ALSO IS CIRCUMSCRIBED BY THE PROVISION THAT FINDINGS OF THE
BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE. 
SEC. 10(E), 49 STAT. 454.  SO WE HAVE POWER ONLY TO DETERMINE WHETHER
THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE BOARD, OR ITS ORDER
OVERSTEPS THE LAW.  N.L.R.B. V. LINK-BELT CO., 311 U.S. 584; PITTSBURGH
PLATE GLASS CO. V. N.L.R.B., 313 U.S. 146. 

THERE IS CLEARLY SUBSTANTIAL EVIDENCE IN SUPPORT OF THE DETERMINATION
THAT FOREMEN ARE AN APPROPRIATE UNIT BY THEMSELVES AND THERE IS EQUAL
EVIDENCE THAT, WHILE THE FOREMEN INCLUDED IN THIS UNIT HAVE DIFFERENT
DEGREES OF RESPONSIBILITY AND WORK AT DIFFERENT LEVELS OF AUTHORITY,
THEY HAVE SUCH A COMMON RELATIONSHIP TO THE ENTERPRISE AND TO OTHER
LEVELS OF WORKMEN THAT INCLUSION OF ALL SUCH GRADES OF FOREMEN IN A
SINGLE UNIT IS APPROPRIATE.  HENCE THE ORDER INSOFAR AS IT DEPENDS ON
FACTS IS BEYOND OUR POWER OF REVIEW.  THE ISSUE AS TO WHAT UNIT IS
APPROPRIATE FOR BARGAINING IS ONE FOR WHICH NO ABSOLUTE RULE OF LAW IS
LAID DOWN BY STATUTE, AND NONE SHOULD BE BY DECISION.  IT INVOLVES OF
NECESSITY A LARGE MEASURE OF INFORMED DISCRETION, AND THE DECISION OF
THE BOARD, IF NOT FINAL, IS RARELY TO BE DISTURBED.  WHILE WE DO NOT
SAY THAT A DETERMINATION OF A UNIT OF REPRESENTATION CANNOT BE SO
UNREASONABLE AND ARBITRARY AS TO EXCEED THE BOARD'S POWER, WE ARE CLEAR
THAT THE DECISION IN QUESTION DOES NOT DO SO.  THAT SETTLED, OUR POWER
IS AT AN END. 

WE ARE INVITED TO MAKE A LENGTHY EXAMINATION OF VIEWS EXPRESSED IN
CONGRESS WHILE THIS AND LATER LEGISLATION WAS PENDING TO SHOW THAT
EXCLUSION OF FOREMEN WAS INTENDED.  THERE IS, HOWEVER, NO AMBIGUITY IN
THIS ACT TO BE CLARIFIED BY RESORT TO LEGISLATIVE HISTORY, EITHER OF
THE ACT ITSELF OR OF SUBSEQUENT LEGISLATIVE PROPOSALS WHICH FAILED TO
BECOME LAW. 

COUNSEL ALSO WOULD PERSUADE US TO MAKE A CONTRARY INTERPRETATION BY
CITING A LONG RECORD OF INACTION, VACILLATION AND DIVISION OF THE
NATIONAL LABOR RELATIONS BOARD IN APPLYING THIS ACT TO FOREMEN.  IF WE
WERE OBLIGED TO DEPEND UPON ADMINISTRATIVE INTERPRETATION FOR LIGHT IN
FINDING THE MEANING OF THE STATUTE, THE INCONSISTENCY OF THE BOARD'S
DECISIONS WOULD LEAVE US IN THE DARK.  FN3  BUT THERE ARE DIFFICULT
QUESTIONS OF POLICY INVOLVED IN THESE CASES WHICH, TOGETHER WITH
CHANGES IN BOARD MEMBERSHIP, ACCOUNT FOR THE CONTRADICTORY VIEWS THAT
CHARACTERIZE THEIR HISTORY IN THE BOARD.  WHATEVER SPECIAL QUESTIONS
THERE ARE IN DETERMINING THE APPROPRIATE BARGAINING UNIT FOR FOREMEN
ARE FOR THE BOARD, AND THE HISTORY OF THE ISSUE IN THE BOARD SHOWS THE
DIFFICULTY OF THE PROBLEM COMMITTED TO ITS DISCRETION.  WE ARE NOT AT
LIBERTY TO BE GOVERNED BY THOSE POLICY CONSIDERATIONS IN DECIDING THE
NAKED QUESTION OF LAW WHETHER THE BOARD IS NOW, IN THIS CASE, ACTING
WITHIN THE TERMS OF THE STATUTE. 

IT IS ALSO URGED UPON US MOST SERIOUSLY THAT UNIONIZATION OF FOREMEN
IS FROM MANY POINTS BAD INDUSTRIAL POLICY, THAT IT PUTS THE UNION
FOREMAN IN THE POSITION OF SERVING TWO MASTERS, DIVIDES HIS LOYALTY AND
MAKES GENERALLY FOR BAD RELATIONS BETWEEN MANAGEMENT AND LABOR. 
HOWEVER WE MIGHT APPRAISE THE FORCE OF THESE ARGUMENTS AS A POLICY
MATTER, WE ARE NOT AUTHORIZED TO BASE DECISION OF A QUESTION OF LAW
UPON THEM.  THEY CONCERN THE WISDOM OF THE LEGISLATION; THEY CANNOT
ALTER THE MEANING OF OTHERWISE PLAIN PROVISIONS. 

THE JUDGMENT OF ENFORCEMENT IS AFFIRMED. 

FN1  61 N.L.R.B. 4, 26. 

FN2  IF A UNION OF VICE PRESIDENTS, PRESIDENTS OR OTHERS OF LIKE
RELATIONSHIP TO A CORPORATION COMES HERE CLAIMING RIGHTS UNDER THIS
ACT, IT WILL BE TIME ENOUGH THEN TO POINT OUT THE OBVIOUS AND RELEVANT
DIFFERENCES BETWEEN THE 1,100 FOREMEN OF THIS COMPANY AND CORPORATE
OFFICERS ELECTED BY THE BOARD OF DIRECTORS. 

FN3  THE BOARD HAD HELD THAT SUPERVISORY EMPLOYEES MAY ORGANIZE IN AN
INDEPENDENT UNION, UNION COLLIERIES COAL CO., 41 N.L.R.B. 961, 44
N.L.R.B. 165; AND IN AN AFFILIATED UNION, GODCHAUX SUGARS, INC., 44
N.L.R.B. 874.  THEN IT HELD THAT THERE WAS NO UNIT APPROPRIATE TO THE
ORGANIZATION OF SUPERVISORY EMPLOYEES.  MARYLAND DRYDOCK CO., 49
N.L.R.B. 733; BOEING AIRCRAFT CO., 51 N.L.R.B. 67; MURRAY CORP. OF
AMERICA, 51 N.L.R.B. 94; GENERAL MOTORS CORP., 51 N.L.R.B. 457.  IN
THIS CASE, 61 N.L.R.B. 4, 64 N.L.R.B. 1212; IN L.A. YOUNG SPRING & WIRE
CORP., 65 N.L.R.B. 298; JONES & LAUGHLIN STEEL CORP., 66 N.L.R.B. 386,
71 N.L.R.B. 1261; AND IN CALIFORNIA PACKING CORP., 66 N.L.R.B. 1461,
THE BOARD RE-EMBRACED ITS EARLIER CONCLUSIONS WITH THE SAME PROGRESSIVE
BOLDNESS IT HAD SHOWN IN THE UNION COLLIERIES AND GODCHAUX SUGARS
CASES.  IN NONE OF THIS SERIES OF CASES DID THE BOARD HOLD THAT
SUPERVISORS WERE NOT EMPLOYEES.  SEE SOSS MANUFACTURING CO., 56
N.L.R.B. 348.    MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE AND
MR. JUSTICE BURTON CONCUR, DISSENTING.    FIRST.  OVER THIRTY YEARS AGO
MR. JUSTICE BRANDEIS, WHILE STILL A PRIVATE CITIZEN, SAW THE NEED FOR
NARROWING THE GAP BETWEEN MANAGEMENT AND LABOR, FOR ALLOWING LABOR
GREATER PARTICIPATION IN POLICY DECISIONS, FOR DEVELOPING AN INDUSTRIAL
SYSTEM IN WHICH COOPERATION RATHER THAN COERCION WAS THE DOMINANT
CHARACTERISTIC.  FN1  IN HIS VIEW, THESE WERE MEASURES OF THERAPEUTIC
VALUE IN DEALING WITH PROBLEMS OF INDUSTRIAL UNREST OR INEFFICIENCY. 

THE PRESENT DECISION MAY BE A STEP IN THAT DIRECTION.  IT AT LEAST
TENDS TO OBLITERATE THE LINE BETWEEN MANAGEMENT AND LABOR.  IT LENDS
THE SANCTIONS OF FEDERAL LAW TO UNIONIZATION AT ALL LEVELS OF THE
INDUSTRIAL HIERARCHY.  IT TENDS TO EMPHASIZE THAT THE BASIC OPPOSING
FORCES IN INDUSTRY ARE NOT MANAGEMENT AND LABOR BUT THE OPERATING GROUP
ON THE ONE HAND AND THE STOCKHOLDER AND BONDHOLDER GROUP ON THE OTHER. 
THE INDUSTRIAL PROBLEM AS SO DEFINED COMES DOWN TO A CONTEST OVER A
FAIR DIVISION OF THE GROSS RECEIPTS OF INDUSTRY BETWEEN THESE TWO
GROUPS.  THE STRUGGLE FOR CONTROL OR POWER BETWEEN MANAGEMENT AND LABOR
BECOMES SECONDARY TO A GROWING UNITY IN THEIR COMMON DEMANDS ON
OWNERSHIP. 

I DO NOT BELIEVE THIS IS AN EXAGGERATED STATEMENT OF THE BASIC POLICY
QUESTIONS WHICH UNDERLIE THE PRESENT DECISION.  FOR IF FOREMEN ARE
"EMPLOYEES" WITHIN THE MEANING OF THE NATIONAL LABOR RELATIONS ACT, SO
ARE VICE-PRESIDENTS, MANAGERS, ASSISTANT MANAGERS, SUPERINTENDENTS,
ASSISTANT SUPERINTENDENTS - INDEED, ALL WHO ARE ON THE PAYROLL OF THE
COMPANY, INCLUDING THE PRESIDENT; ALL WHO ARE COMMONLY REFERRED TO AS
THE MANAGEMENT, WITH THE EXCEPTION OF THE DIRECTORS.  IF A UNION OF
VICE-PRESIDENTS APPLIED FOR RECOGNITION AS A COLLECTIVE BARGAINING
AGENCY, I DO NOT SEE HOW WE COULD DENY IT AND YET ALLOW THE PRESENT
APPLICATION.  BUT ONCE VICE-PRESIDENTS, MANAGERS, SUPERINTENDENTS,
FOREMEN ALL ARE UNIONIZED, MANAGEMENT AND LABOR WILL BECOME MORE OF A
SOLID PHALANX THAN SEPARATE FACTIONS IN WARRING CAMPS.  INDEED, THE
THOUGHT OF SOME LABOR LEADERS THAT IF THOSE IN THE HIERARCHY ABOVE THE
WORKERS ARE UNIONIZED, THEY WILL BE MORE SYMPATHETIC WITH THE CLAIMS OF
THOSE BELOW THEM, IS A MANIFESTATION OF THE SAME IDEA.  FN2 

I MENTION THESE MATTERS TO INDICATE WHAT TREMENDOUSLY IMPORTANT
POLICY QUESTIONS ARE INVOLVED IN THE PRESENT DECISION.  MY PURPOSE IS
TO SUGGEST THAT IF CONGRESS, WHEN IT ENACTED THE NATIONAL LABOR
RELATIONS ACT, HAD IN MIND SUCH A BASIC CHANGE IN INDUSTRIAL
PHILOSOPHY, IT WOULD HAVE LEFT SOME CLEAR AND UNMISTAKABLE TRACE OF
THAT PURPOSE.  BUT I FIND NONE. 

SECOND.  "EMPLOYEE" IS DEFINED TO INCLUDE "ANY" EMPLOYEE.  SEC. 2(3),
49 STAT. 449, 450, 29 U.S.C. SEC. 152.  IF WE STOP THERE, FOREMEN ARE
INCLUDED AS ARE ALL EMPLOYEES FROM THE PRESIDENT ON DOWN.  BUT WE ARE
NOT WARRANTED IN STOPPING THERE.  THE TERM "EMPLOYEE" MUST BE
CONSIDERED IN THE CONTEXT OF THE ACT.  NATIONAL LABOR RELATIONS BOARD
V. HEARST PUBLICATIONS, 322 U.S. 111, 124; PHELPS DODGE CORP. V.
NATIONAL LABOR RELATIONS BOARD, 313 U.S. 177, 191.  WHEN IT IS SO
CONSIDERED IT DOES NOT APPEAR TO BE USED IN AN ALL-EMBRACING SENSE. 
RATHER, IT IS USED IN OPPOSITION TO THE TERM "EMPLOYER."  AN "EMPLOYER"
IS DEFINED TO INCLUDE "ANY PERSON ACTING IN THE INTEREST OF AN
EMPLOYER."  SEC. 2(2).  THE TERM "EMPLOYER" THUS INCLUDES SOME
EMPLOYEES.  AND I FIND NO EVIDENCE THAT ONE PERSONNEL GROUP MAY BE BOTH
EMPLOYERS AND EMPLOYEES WITHIN THE MEANING OF THE ACT.  RATHER, THE ACT
ON ITS FACE SEEMS TO CLASSIFY THE OPERATING GROUP OF INDUSTRY INTO TWO
CLASSES; WHAT IS INCLUDED IN ONE GROUP IS EXCLUDED FROM THE OTHER. 

IT IS NOT AN ANSWER TO SAY THAT THE TWO STATUTORY GROUPS ARE NOT
EXCLUSIVE BECAUSE EVERY "EMPLOYEE" WHILE ON DUTY - WHETHER DRIVING A
TRUCK OR STOKING A FURNACE OR OPERATING A LATHE - IS "ACTING IN THE
INTEREST" OF HIS EMPLOYER AND IS THEN AN "EMPLOYER" IN THE STATUTORY
SENSE.  THE ACT WAS NOT DECLARING A POLICY OF VICARIOUS RESPONSIBILITY
OF INDUSTRY.  IT WAS DEALING SOLELY WITH LABOR RELATIONS.  IT PUT IN
THE EMPLOYER CATEGORY ALL THOSE WHO ACTED FOR MANAGEMENT NOT ONLY IN
FORMULATING BUT ALSO IN EXECUTING ITS LABOR POLICIES.  FN3 

FOREMOST AMONG THE LATTER WERE FOREMEN.  TRADE UNION HISTORY SHOWS
THAT FOREMEN WERE THE ARMS AND LEGS OF MANAGEMENT IN EXECUTING LABOR
POLICIES.  IN INDUSTRIAL CONFLICTS THEY WERE ALLIED WITH MANAGEMENT. 
MANAGEMENT INDEED COMMONLY ACTED THROUGH THEM IN THE UNFAIR LABOR
PRACTICES WHICH THE ACT CONDEMNS.  FN4  WHEN WE UPHELD THE IMPOSITION
OF THE SANCTIONS OF THE ACT AGAINST MANAGEMENT, WE FREQUENTLY RELIED ON
THE ACTS OF FOREMEN THROUGH WHOM MANAGEMENT EXPRESSED ITS HOSTILITY TO
TRADE UNIONISM.  FN5 

THIRD.  THE EVIL AT WHICH THE ACT WAS AIMED WAS THE FAILURE OR
REFUSAL OF INDUSTRY TO RECOGNIZE THE RIGHT OF WORKINGMEN TO BARGAIN
COLLECTIVELY.  IN SEC. 1 OF THE ACT, CONGRESS NOTED THAT SUCH AN
ATTITUDE ON THE PART OF INDUSTRY LED "TO STRIKES AND OTHER FORMS OF
INDUSTRIAL STRIFE OR UNREST" SO AS TO BURDEN OR OBSTRUCT INTERSTATE
COMMERCE.  WE KNOW FROM THE HISTORY OF THAT DECADE THAT THE FRUSTRATED
EFFORTS OF WORKINGMEN, OF LABORERS, TO ORGANIZE LED TO STRIKES, STRIFE,
AND UNREST.  BUT WE ARE POINTED TO NO INSTANCES WHERE FOREMEN WERE
STRIKING; NOR ARE WE ADVISED THAT MANAGERS, SUPERINTENDENTS, OR
VICEPRESIDENTS WERE DOING SO. FN6 

INDEED, THE PROBLEMS OF THOSE IN THE SUPERVISORY CATEGORIES OF
MANAGEMENT DID NOT SEEM TO HAVE BEEN IN THE CONSCIOUSNESS OF CONGRESS. 
"WORKERS."  THERE IS NO PHRASE IN THE ENTIRE ACT WHICH IS DESCRIPTIVE
OF THOSE DOING SUPERVISORY WORK.  SECTION 2(3) EXEMPTS FROM THE TERM
"EMPLOYEE" ANY "AGRICULTURAL LABORER."  BUT IF "EMPLOYEE" INCLUDES A
FOREMAN, IT WOULD BE MOST STRANGE TO FIND CONGRESS EXEMPTING
"AGRICULTURAL LABORERS," BUT NOT "AGRICULTURAL FOREMEN."  THE INFERENCE
IS STRONG THAT SINCE IT EXEMPTED ONLY AGRICULTURAL "LABORERS," IT HAD
NO IDEA THAT AGRICULTURAL "FOREMEN" WERE UNDER THE ACT. 

IF FOREMEN WERE TO BE INCLUDED AS EMPLOYEES UNDER THE ACT, SPECIAL
PROBLEMS WOULD BE RAISED - IMPORTANT PROBLEMS RELATING TO THE UNIT IN
WHICH THE FOREMEN MIGHT BE REPRESENTED.  FOREMEN ARE ALSO UNDER THE ACT
AS EMPLOYERS.  THAT DUAL STATUS CREATES SERIOUS PROBLEMS.  AN ACT OF A
FOREMAN, IF ATTRIBUTED TO THE MANAGEMENT, CONSTITUTES AN UNFAIR LABOR
PRACTICE; THE SAME ACT MAY BE PART OF THE FOREMAN'S ACTIVITY AS AN
EMPLOYEE.  IN THAT EVENT THE EMPLOYER CAN ONLY INTERFERE AT HIS PERIL. 
FN7  THE COMPLICATIONS OF DEALING WITH THE PROBLEMS OF SUPERVISORY
EMPLOYEES STRONGLY SUGGEST THAT IF CONGRESS HAD PLANNED TO INCLUDE THEM
IN ITS PROJECT, IT WOULD HAVE MADE SOME SPECIAL PROVISION FOR THEM. 
BUT WE FIND NO TRACE OF A SUGGESTION THAT WHEN CONGRESS CAME TO
CONSIDER THE UNITS APPROPRIATE FOR COLLECTIVE BARGAINING,  FN8  IT WAS
AWARE THAT GROUPS OF EMPLOYEES MIGHT HAVE CONFLICTING LOYALTIES.  YET
THAT WOULD HAVE BEEN ONE OF THE MOST IMPORTANT AND CONSPICUOUS PROBLEMS
IF FOREMEN WERE TO BE INCLUDED.  THE FAILURE OF CONGRESS TO FORMULATE A
POLICY RESPECTING THE PECULIAR AND SPECIAL PROBLEMS OF FOREMEN SUGGESTS
AN ABSENCE OF PURPOSE TO BRING THEM UNDER THE ACT.  AND THE NOTION IS
HARD TO RESIST THAT THE VERY ABSENCE OF A DECLARATION BY CONGRESS OF
ITS POLICY RESPECTING FOREMEN IS THE REASON THE BOARD HAS BEEN SO MUCH
AT LARGE IN THE TREATMENT OF THE PROBLEM UNDER THE ACT.  SEE THE CASES
COLLECTED IN NOTE 3 OF THE OPINION OF THE COURT. 

FOURTH.  WHEN WE TURN FROM THE ACT TO THE LEGISLATIVE HISTORY, WE
FIND NO TRACE OF CONGRESSIONAL CONCERN WITH THE PROBLEMS OF SUPERVISORY
PERSONNEL.  THE REPORTS AND DEBATES ARE BARREN OF ANY REFERENCE TO
THEM, THOUGH THEY ARE REPLETE WITH REFERENCES TO THE FUNCTION OF THE
LEGISLATION IN PROTECTING THE INTERESTS OF "LABORERS" AND "WORKERS." 
FN9 

FIFTH.  WHEN WE TURN TO OTHER RELATED LEGISLATION, WE FIND THAT WHEN
CONGRESS DESIRED TO INCLUDE MANAGERIAL OFFICIALS OR SUPERVISORY
PERSONNEL IN THE CATEGORY OF EMPLOYEES, IT DID SO EXPRESSLY.  THE
RAILWAY LABOR ACT OF 1926, 44 STAT. 577, 45 U.S.C. SEC. 151, DEFINES
"EMPLOYEE" TO INCLUDE "SUBORDINATE OFFICIAL."  THE MERCHANT MARINE ACT
OF 1936, 52 STAT. 953, 46 U.S.C. SEC. 1101 ET SEQ., WHICH DEALS WITH
MARITIME LABOR RELATIONS AS A SUPPLEMENT TO THE NATIONAL LABOR
RELATIONS ACT (SEE 46 U.S.C. SEC. 1252), DEFINES "EMPLOYEE" TO INCLUDE
"SUBORDINATE OFFICIAL."  46 U.S.C. SEC. 1253(C).  AND THE SOCIAL
SECURITY ACT, 49 STAT. 620, 647, 42 U.S.C. SEC. 1301, INCLUDES AN
OFFICER OF A CORPORATION IN THE TERM EMPLOYEE.  FN10  THE FAILURE OF
CONGRESS TO DO THE SAME WHEN IT WROTE THE NATIONAL LABOR RELATIONS ACT
HAS SOME SIGNIFICANCE, ESPECIALLY WHERE THE LEGISLATIVE HISTORY IS
UTTERLY DEVOID OF ANY INDICATION THAT CONGRESS WAS CONCERNED WITH THE
COLLECTIVE BARGAINING PROBLEMS OF SUPERVISORY EMPLOYEES. 

SIXTH.  THE TRUTH OF THE MATTER IS, I THINK, THAT WHEN CONGRESS
PASSED THE NATIONAL LABOR RELATIONS ACT IN 1935, IT WAS LEGISLATING
AGAINST THE ACTIVITIES OF FOREMEN, NOT ON THEIR BEHALF.  CONGRESS WAS
INTENT ON PROTECTING THE RIGHT OF FREE ASSOCIATION - THE RIGHT TO
BARGAIN COLLECTIVELY - BY THE GREAT MASS OF WORKERS, NOT BY THOSE WHO
WERE IN AUTHORITY OVER THEM AND ENFORCING OPPRESSIVE INDUSTRIAL
POLICIES.  FOREMEN WERE INSTRUMENTALITIES OF THOSE INDUSTRIAL
POLICIES.  THEY BLOCKED THE WAGE EARNERS' PATH TO FAIR COLLECTIVE
BARGAINING.  TO SAY TWELVE YEARS LATER THAT FOREMEN WERE TREATED AS THE
VICTIMS OF THAT ANTI-LABOR POLICY SEEMS TO ME A DISTORTION OF HISTORY. 

IF WE WERE TO DECIDE THIS CASE ON THE BASIS OF POLICY, MUCH COULD BE
SAID TO SUPPORT THE MAJORITY VIEW.  FN11  BUT I AM CONVINCED THAT
CONGRESS NEVER FACED THOSE POLICY ISSUES WHEN IT ENACTED THIS
LEGISLATION.  I AM SURE THAT THOSE PROBLEMS WERE NOT IN THE
CONSCIOUSNESS OF CONGRESS.  A DECISION ON THESE POLICY MATTERS CUTS
DEEP INTO OUR INDUSTRIAL LIFE.  IT HAS PROFOUND IMPLICATIONS THROUGHOUT
OUR ECONOMY.  IT INVOLVES A FUNDAMENTAL CHANGE IN MUCH OF THE THINKING
OF THE NATION ON OUR INDUSTRIAL PROBLEMS.  THE QUESTION IS SO IMPORTANT
THAT I CANNOT BELIEVE CONGRESS LEGISLATED UNWITTINGLY ON IT.  SINCE
WHAT CONGRESS WROTE IS CONSISTENT WITH A RESTRICTION OF THE ACT TO
WORKINGMEN AND LABORERS, I WOULD LEAVE ITS EXTENSION OVER SUPERVISORY
EMPLOYEES TO CONGRESS. 

I HAVE USED THE TERMS FOREMEN AND SUPERVISORY EMPLOYEES
SYNONYMOUSLY.  BUT IT IS NOT THE LABEL WHICH IS IMPORTANT; IT IS
WHETHER THE EMPLOYEES IN QUESTION REPRESENT OR ACT FOR MANAGEMENT ON
LABOR POLICY MATTERS.  THUS ONE MIGHT BE A SUPERVISORY EMPLOYEE WITHOUT
REPRESENTING MANAGEMENT IN THOSE RESPECTS.  AND THOSE WHO ARE CALLED
FOREMEN MAY PERFORM DUTIES NOT SUBSTANTIALLY DIFFERENT FROM THOSE OF
SKILLED LABORERS. 

WHAT I HAVE SAID DOES NOT MEAN THAT FOREMEN HAVE NO RIGHT TO ORGANIZE
FOR COLLECTIVE BARGAINING.  THE GENERAL LAW RECOGNIZES THEIR RIGHT TO
DO SO.  SEE AMERICAN STEEL FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S. 184,
209; TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548, 570.  AND SOME
STATES HAVE PLACED ADMINISTRATIVE MACHINERY AND SANCTIONS BEHIND THAT
RIGHT.  FN12  BUT AS I READ THE FEDERAL ACT, CONGRESS HAS NOT YET DONE
SO. 

FN1  "THE GREATER PRODUCTIVITY OF LABOR MUST NOT ONLY BE ATTAINABLE,
BUT ATTAINABLE UNDER CONDITIONS CONSISTENT WITH THE CONSERVATION OF
HEALTH, THE ENJOYMENT OF WORK, AND THE DEVELOPMENT OF THE INDIVIDUAL. 
THE FACTS IN THIS REGARD HAVE NOT BEEN ADEQUATELY ESTABLISHED.  IN THE
TASK OF ASCERTAINING WHETHER PROPOSED CONDITIONS OF WORK DO CONFORM TO
THESE REQUIREMENTS, THE LABORER SHOULD TAKE PART.  HE IS INDEED A
NECESSARY WITNESS.  LIKEWISE IN THE TASK OF DETERMINING WHETHER IN THE
DISTRIBUTION OF THE GAIN IN PRODUCTIVITY JUSTICE IS BEING DONE TO THE
WORKER, THE PARTICIPATION OF REPRESENTATIVES OF LABOR IS INDISPENSABLE
FOR THE INQUIRY WHICH INVOLVES ESSENTIALLY THE EXERCISE OF JUDGMENT." 
BRANDEIS, BUSINESS - A PROFESSION (1933) PP. 52-53. 

FN2  THE FOREMAN ABDICATES, XXXII FORTUNE, NO. 3, P. 150, 152;
LEVENSTEIN, LABOR TODAY AND TOMORROW (1946) CH. VII. 

FN3  DAYKIN, THE STATUS OF SUPERVISORY EMPLOYEES UNDER THE NATIONAL
LABOR RELATIONS ACT, 29 IOWA L. REV. 297; ROSENFARB, THE NATIONAL LABOR
POLICY (1940) PP. 54-56, 116-120; TWENTIETH CENTURY FUND, HOW
COLLECTIVE BARGAINING WORKS (1942) PP. 512-514, 547, 557-558, 628,
780. 

FN4  SEE CASES COLLECTED IN DAYKIN, OP. CIT. SUPRA, NOTE 3, PP. 298
299. 

FN5  INTERNATIONAL ASSOCIATION OF MACHINISTS V. NATIONAL LABOR REL.
BD., 311 U.S. 72, 79-80; HEINZ CO. V. NATIONAL LABOR REL. BD., 311 U.S.
514, 520-521. 

FN6  IT IS TRUE THAT FOR MANY YEARS SOME UNIONS INCLUDED SUPERVISORY
EMPLOYEES, BEATRICE AND SIDNEY WEBB, INDUSTRIAL DEMOCRACY (1902) P.
546, FN. 2; UNION MEMBERSHIP AND COLLECTIVE BARGAINING BY FOREMEN, U.S.
DEPT. OF LABOR, B.L.S. BULL.  NO. 745(1943); REPORT OF PANEL OF WAR
LABOR BOARD IN DISPUTES INVOLVING SUPERVISORS (1945) IX; TWENTIETH
CENTURY FUND, OP. CIT. SUPRA, NOTE 3, PP. 67, 216; NORTHRUP,
UNIONIZATION OF FOREMEN, 21 HARV. BUS.  REV.  496.  BUT ORGANIZATION OF
FOREMEN ON A BROAD SCALE IS A DEVELOPMENT OF THE LAST FEW YEARS. 
DAYKIN, OP. CIT. SUPRA, NOTE 3, P. 314; ROSENFARB, FOREMEN ON THE
MARCH, 7 FED. BAR.  J. 168; NOTE, 59 HARV. L. REV. 606, 607; COMMENT,
55 YALE L.J. 754, 756; FOREMEN'S UNIONS, IX ADVANCED MANAGEMENT
QUARTERLY J. 110.    FN7  CF. JONES & LAUGHLIN STEEL CORP. V. NATIONAL
LABOR REL. BD., 146 F.2D 833; COMMENT, 55 YALE L.J. 754, 767-774;
ROSENFARB, OP. CIT. SUPRA, NOTE 6. 

FN8  SECTION 9(B) OF THE ACT PROVIDES:  "THE BOARD SHALL DECIDE IN
EACH CASE WHETHER, IN ORDER TO INSURE TO EMPLOYEES THE FULL BENEFIT OF
THEIR RIGHT TO SELF-ORGANIZATION AND TO COLLECTIVE BARGAINING, AND
OTHERWISE TO EFFECTUATE THE POLICIES OF THIS ACT, THE UNIT APPROPRIATE
FOR THE PURPOSES OF COLLECTIVE BARGAINING SHALL BE THE EMPLOYER UNIT,
CRAFT UNIT, PLANT UNIT, OR SUBDIVISION THEREOF."    FN9  SEE H. REP.
NO. 969, 74TH CONG., 1ST SESS.; H. REP. NO. 972, 74TH CONG., 1ST SESS.;
H. REP. NO. 1147, 74TH CONG., 1ST SESS.; S. REP. NO. 573, 74TH CONG.,
1ST SESS., PP. 6-7; HEARINGS, SENATE COMM. ON EDUC.  AND LABOR ON S.
2926, 73D CONG., 2D SESS.; HEARINGS, HOUSE COMM. ON LABOR ON H.R. 6288,
74TH CONG., 1ST SESS.; HEARINGS, SENATE COMM. ON EDUC.  AND LABOR ON S.
1958, 74TH CONG., 1ST SESS.; 79 CONG. REC. 2371, 7565, 7648, 7668,
8537, 9676, 9713, 9736, 10720. 

FN10  CF. FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, AS AMENDED,
45 U.S.C. SEC. 51, UNDER WHICH THE TERM "ANY EMPLOYEE OF A CARRIER" HAS
BEEN APPLIED TO FOREMEN.  OWENS V. UNION PAC. R. CO., 319 U.S. 715;
ELLIS V. UNION PAC. R. CO., 329 U.S. 649. 

FN11  DAYKIN, OP. CIT. SUPRA, NOTE 3, P. 313; ROSENFARB, OP. CIT.
SUPRA, NOTE 6; GARTENHAUS, THE FOREMAN GOES UNION, 113 NEW REPUBLIC
563; COMMENT, 55 YALE L.J. 754; HEARINGS, HOUSE COMM. ON MILITARY
AFFAIRS ON BILLS RELATING TO THE FULL UTILIZATION OF MANPOWER, 78TH
CONG., 1ST SESS., P. 299; NORTHRUP, THE FOREMAN'S ASSOCIATION OF
AMERICA, 23 HARV. BUS.  REV.  187; CF. AMERICAN MANAGEMENT ASSOCIATION,
RELATIONS BETWEEN MANAGEMENT AND FOREMEN IN AMERICAN INDUSTRY (1944);
ID. THE FOREMAN IN LABOR RELATIONS (1944); ID.  SHOULD MANAGEMENT BE
UNIONIZED?  (1945). 

FN12  THE STATE LAWS ARE DISCUSSED IN NORTHRUP, THE FOREMAN'S
ASSOCIATION OF AMERICA, 23 HARV. BUS.  REV.  187, 199-200. 

MR. JUSTICE FRANKFURTER AGREES WITH THIS OPINION EXCEPT THE PART
MARKED "FIRST" AS TO WHICH HE EXPRESSES NO VIEW. 
..END :










GULF OIL CORP. V. GILBERT, 330 U.S. 501 


NO. 93.  ARGUED DECEMBER 18, 19, 1946.  - DECIDED MARCH 10, 1947.  - 153
F.2D 883, REVERSED. 


1.  A FEDERAL DISTRICT COURT HAS POWER TO DISMISS AN ACTION AT LAW
PURSUANT TO THE DOCTRINE OF FORUM NON CONVENIENS - AT LEAST WHERE ITS
JURISDICTION IS BASED ON DIVERSITY OF CITIZENSHIP AND THE STATE COURTS
HAVE SUCH POWER.  PP. 502-509, 512. 

2.  A RESIDENT OF VIRGINIA BROUGHT AN ACTION IN A FEDERAL DISTRICT
COURT IN NEW YORK CITY AGAINST A PENNSYLVANIA CORPORATION QUALIFIED TO
DO BUSINESS IN BOTH VIRGINIA AND NEW YORK (WHERE IT HAD DESIGNATED
AGENTS TO RECEIVE SERVICE OF PROCESS), TO RECOVER DAMAGES FOR
DESTRUCTION OF PLAINTIFF'S PUBLIC WAREHOUSE AND ITS CONTENTS IN
VIRGINIA BY FIRE RESULTING FROM DEFENDANT'S NEGLIGENCE.  THE COURT HAD
JURISDICTION (BASED SOLELY ON DIVERSITY OF CITIZENSHIP) AND THE VENUE
WAS CORRECT; BUT ALL EVENTS IN LITIGATION HAD TAKEN PLACE IN VIRGINIA,
MOST OF THE WITNESSES RESIDED THERE, AND BOTH STATE AND FEDERAL COURTS
IN VIRGINIA WERE AVAILABLE TO PLAINTIFF AND WERE ABLE TO OBTAIN
JURISDICTION OF DEFENDANT.  APPLYING THE DOCTRINE OF FORUM NON
CONVENIENS, THE COURT DISMISSED THE SUIT.  HELD:  IT DID NOT ABUSE ITS
DISCRETION IN DOING SO.  PP. 509-512. 

3.  IMPORTANT CONSIDERATIONS IN THE APPLICATION OF THE DOCTRINE OF
FORUM NON CONVENIENS, FROM THE STANDPOINT OF LITIGANTS, ARE RELATIVE
EASE OF ACCESS TO SOURCES OF PROOF, AVAILABILITY OF COMPULSORY PROCESS
FOR ATTENDANCE OF UNWILLING WITNESSES, COST OF OBTAINING ATTENDANCE OF
WILLING WITNESSES, POSSIBILITY OF VIEW OF THE PREMISES IF THAT BE
APPROPRIATE, AND ALL OTHER PRACTICAL PROBLEMS THAT MAKE TRIAL OF A CASE
EASY, EXPEDITIOUS AND INEXPENSIVE.  P. 508. 

4.  CONSIDERATIONS OF PUBLIC INTEREST IN APPLYING THE DOCTRINE
INCLUDE THE UNDESIRABILITY OF PILING UP LITIGATION IN CONGESTED
CENTERS, THE BURDEN OF JURY DUTY ON PEOPLE OF A COMMUNITY HAVING NO
RELATION TO THE LITIGATION, THE LOCAL INTEREST IN HAVING LOCALIZED
CONTROVERSIES DECIDED AT HOME AND THE UNNECESSARY INJECTION OF PROBLEMS
IN CONFLICT OF LAWS.  PP. 508-509. 

GULF OIL CORP. V. GILBERT, DOING BUSINESS AS GILBERT STORAGE &
TRANSFER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

APPLYING THE DOCTRINE OF FORUM NON CONVENIENS, A DISTRICT COURT
DISMISSED A TORT ACTION IN NEW YORK ARISING OUT OF EVENTS OCCURRING IN
VIRGINIA.  62 F.SUPP.  291.  THE CIRCUIT COURT OF APPEALS REVERSED. 
153 F.2D 883.  THIS COURT GRANTED CERTIORARI.  328 U.S. 830.  REVERSED,
P. 512. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS ARE WHETHER THE UNITED STATES DISTRICT COURT HAS
INHERENT POWER TO DISMISS A SUIT PURSUANT TO THE DOCTRINE OF FORUM NON
CONVENIENS AND, IF SO, WHETHER THAT POWER WAS ABUSED IN THIS CASE. 

THE RESPONDENT-PLAINTIFF BROUGHT THIS ACTION IN THE SOUTHERN DISTRICT
OF NEW YORK, BUT RESIDES AT LYNCHBURG, VIRGINIA, WHERE HE OPERATED A
PUBLIC WAREHOUSE.  HE ALLEGES THAT THE PETITIONER-DEFENDANT, IN
VIOLATION OF THE ORDINANCES OF LYNCHBURG, SO CARELESSLY HANDLED A
DELIVERY OF GASOLINE TO HIS WAREHOUSE TANKS AND PUMPS AS TO CAUSE AN
EXPLOSION AND FIRE WHICH CONSUMED THE WAREHOUSE BUILDING TO HIS DAMAGE
OF $41,889.10, DESTROYED MERCHANDISE AND FIXTURES TO HIS DAMAGE OF
$3,602.40, CAUSED INJURY TO HIS BUSINESS AND PROFITS OF $20,038.27, AND
BURNED THE PROPERTY OF CUSTOMERS IN HIS CUSTODY UNDER WAREHOUSING
AGREEMENTS TO THE EXTENT OF $300,000.  HE ASKS JUDGMENT OF $365,529.77
WITH COSTS AND DISBURSEMENTS, AND INTEREST FROM THE DATE OF THE FIRE. 
THE ACTION CLEARLY IS ONE IN TORT. 

THE PETITIONER-DEFENDANT IS A CORPORATION ORGANIZED UNDER THE LAWS OF
PENNSYLVANIA, QUALIFIED TO DO BUSINESS IN BOTH VIRGINIA AND NEW YORK,
AND IT HAS DESIGNATED OFFICIALS OF EACH STATE AS AGENTS TO RECEIVE
SERVICE OF PROCESS.  WHEN SUED IN NEW YORK, THE DEFENDANT, INVOKING THE
DOCTRINE OF FORUM NON CONVENIENS, CLAIMED THAT THE APPROPRIATE PLACE
FOR TRIAL IS VIRGINIA, WHERE THE PLAINTIFF LIVES AND DEFENDANT DOES
BUSINESS, WHERE ALL EVENTS IN LITIGATION TOOK PLACE, WHERE MOST OF THE
WITNESSES RESIDE, AND WHERE BOTH STATE AND FEDERAL COURTS ARE AVAILABLE
TO PLAINTIFF AND ARE ABLE TO OBTAIN JURISDICTION OF THE DEFENDANT. 

THE CASE, ON ITS MERITS, INVOLVES NO FEDERAL QUESTION AND WAS BROUGHT
IN THE UNITED STATES DISTRICT COURT SOLELY BECAUSE OF DIVERSITY IN
CITIZENSHIP OF THE PARTIES.  BECAUSE OF THE CHARACTER OF ITS
JURISDICTION AND THE HOLDINGS OF AND UNDER ERIE RAILROAD CO. V.
TOMPKINS, 304 U.S. 64, THE DISTRICT COURT CONSIDERED THAT THE LAW OF
NEW YORK AS TO FORUM NON CONVENIENS APPLIED AND THAT IT REQUIRED THE
CASE TO BE LEFT TO VIRGINIA COURTS.  FN1  IT THEREFORE DISMISSED. 

THE CIRCUIT COURT OF APPEALS DISAGREED AS TO THE APPLICABILITY OF NEW
YORK LAW, TOOK A RESTRICTIVE VIEW OF THE APPLICATION OF THE ENTIRE
DOCTRINE IN FEDERAL COURTS AND, ONE JUDGE DISSENTING, REVERSED.  FN2
THE CASE IS HERE ON CERTIORARI.  328 U.S. 830. 

                                  I. 

IT IS CONCEDED THAT THE VENUE STATUTES OF THE UNITED STATES PERMITTED
THE PLAINTIFF TO COMMENCE HIS ACTION IN THE SOUTHERN DISTRICT OF NEW
YORK AND EMPOWER THAT COURT TO ENTERTAIN IT. FN3  BUT THAT DOES NOT
SETTLE THE QUESTION WHETHER IT MUST DO SO.  INDEED, THE DOCTRINE OF
FORUM NON CONVENIENS CAN NEVER APPLY IF THERE IS ABSENCE OF
JURISDICTION OR MISTAKE OF VENUE. 

THIS COURT, IN ONE FORM OF WORDS OR ANOTHER, HAS REPEATEDLY RECOGNIZED
THE EXISTENCE OF THE POWER TO DECLINE JURISDICTION IN EXCEPTIONAL
CIRCUMSTANCES.  AS FORMULATED BY MR. JUSTICE BRANDEIS, THE RULE IS: 

"OBVIOUSLY, THE PROPOSITION THAT A COURT HAVING JURISDICTION MUST
EXERCISE IT, IS NOT UNIVERSALLY TRUE; ELSE THE ADMIRALTY COURT COULD
NEVER DECLINE JURISDICTION ON THE GROUND THAT THE LITIGATION IS BETWEEN
FOREIGNERS.  NOR IS IT TRUE OF COURTS ADMINISTERING OTHER SYSTEMS OF
OUR LAW.  COURTS OF EQUITY AND OF LAW ALSO OCCASIONALLY DECLINE, IN THE
INTEREST OF JUSTICE, TO EXERCISE JURISDICTION, WHERE THE SUIT IS
BETWEEN ALIENS OR NON-RESIDENTS OR WHERE FOR KINDRED REASONS THE
LITIGATION CAN MORE APPROPRIATELY BE CONDUCTED IN A FOREIGN TRIBUNAL." 
CANADA MALTING CO., LTD., V. PATERSON STEAMSHIPS, LTD., 285 U.S. 413,
422-23. 

WE LATER EXPRESSLY SAID THAT A STATE COURT "MAY IN APPROPRIATE CASES
APPLY THE DOCTRINE OF FORUM NON CONVENIENS."  BRODERICK V. ROSNER, 294
U.S. 629, 643; WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 294, N. 5. 
EVEN WHERE FEDERAL RIGHTS BINDING ON STATE COURTS UNDER THE
CONSTITUTION ARE SOUGHT TO BE ADJUDGED, THIS COURT HAS SUSTAINED STATE
COURTS IN A REFUSAL TO ENTERTAIN A LITIGATION BETWEEN A NONRESIDENT AND
A FOREIGN CORPORATION OR BETWEEN TWO FOREIGN CORPORATIONS.  DOUGLAS V.
NEW YORK, N.H. & H.R.R., 279 U.S. 377; ANGLO-AMERICAN PROVISION CO. V.
DAVIS PROVISION CO. NO. 1, 191 U.S. 373.  IT HAS HELD THE USE OF AN
INAPPROPRIATE FORUM IN ONE CASE AN UNCONSTITUTIONAL BURDEN ON
INTERSTATE COMMERCE.  DAVIS V. FARMERS CO-OPERATIVE EQUITY CO., 262
U.S. 312.  ON SUBSTANTIALLY FORUM NON CONVENIENS GROUNDS WE HAVE
REQUIRED FEDERAL COURTS TO RELINQUISH DECISION OF CASES WITHIN THEIR
JURISDICTION WHERE THE COURT WOULD HAVE TO PARTICIPATE IN THE
ADMINISTRATIVE POLICY OF A STATE.  RAILROAD COMMISSION V. ROWAN &
NICHOLS OIL CO., 311 U.S. 570; BURFORD V. SUN OIL CO., 319 U.S. 315;
BUT CF. MEREDITH V. WINTER HAVEN, 320 U.S. 228.  AND MOST RECENTLY WE
DECIDED WILLIAMS V. GREEN BAY & WESTERN R.R. CO., 326 U.S. 549, IN
WHICH THE COURT, WITHOUT QUESTIONING THE VALIDITY OF THE DOCTRINE, HELD
IT HAD BEEN APPLIED IN THAT CASE WITHOUT JUSTIFICATION.  FN4 

IT IS TRUE THAT IN CASES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
WE HAVE HELD THAT PLAINTIFF'S CHOICE OF A FORUM CANNOT BE DEFEATED ON
THE BASIS OF FORUM NON CONVENIENS.  BUT THIS WAS BECAUSE THE SPECIAL
VENUE ACT UNDER WHICH THOSE CASES ARE BROUGHT WAS BELIEVED TO REQUIRE
IT. BALTIMORE & OHIO R.R. V. KEPNER, 314 U.S. 44; MILES V. ILLINOIS
CENTRAL R.R., 315 U.S. 698.  THOSE DECISIONS DO NOT PURPORT TO MODIFY
THE DOCTRINE AS TO OTHER CASES GOVERNED BY THE GENERAL VENUE STATUTES. 

BUT THE COURT BELOW SAYS THAT "THE KEPNER CASE  ...  WARNED AGAINST
REFUSAL OF JURISDICTION IN A PARTICULAR CASE CONTROLLED BY
CONGRESSIONAL ACT; HERE THE ONLY DIFFERENCE IS THAT CONGRESSIONAL ACT,
PLUS JUDICIAL INTERPRETATION (UNDER THE NEIRBO CASE), SPELLS OUT THE
RESULT."  153 F.2D AT 885.  THE FEDERAL EMPLOYERS' LIABILITY ACT,
HOWEVER, WHICH CONTROLLED DECISION IN THE KEPNER CASE, SPECIFICALLY
PROVIDES WHERE VENUE MAY BE HAD IN ANY SUIT ON A CAUSE OF ACTION
ARISING UNDER THAT STATUTE.  WHAT THE COURT BELOW REFERS TO AS
"CONGRESSIONAL ACT, PLUS JUDICIAL INTERPRETATION," IS THE GENERAL
STATUTE OF VENUE IN DIVERSITY SUITS, PLUS OUR DECISION THAT IT GIVES
THE DEFENDANT "A PERSONAL PRIVILEGE RESPECTING THE VENUE, OR PLACE OF
SUIT, WHICH HE MAY ASSERT, OR MAY WAIVE, AT HIS ELECTION," NEIRBO CO.
V. BETHLEHEM SHIPBUILDING CORP., 308 U.S. 165, 168.  THE FEDERAL
EMPLOYERS' LIABILITY ACT, AS INTERPRETED BY KEPNER, INCREASES THE
NUMBER OF PLACES WHERE THE DEFENDANT MAY BE SUED AND MAKES HIM ACCEPT
THE PLAINTIFF'S CHOICE.  THE NEIRBO CASE IS ONLY A DECLARATION THAT IF
THE DEFENDANT, BY FILING CONSENT TO BE SUED, WAIVES ITS PRIVILEGE TO BE
SUED AT ITS PLACE OF RESIDENCE, IT MAY BE SUED IN THE FEDERAL COURTS AT
THE PLACE WHERE IT HAS CONSENTED TO BE SUED.  BUT THE GENERAL VENUE
STATUTE PLUS THE NEIRBO INTERPRETATION DO NOT ADD UP TO A DECLARATION
THAT THE COURT MUST RESPECT THE CHOICE OF THE PLAINTIFF, NO MATTER WHAT
THE TYPE OF SUIT OR ISSUES INVOLVED.  THE TWO TAKEN TOGETHER MEAN ONLY
THAT THE DEFENDANT MAY CONSENT TO BE SUED, AND IT IS PROPER FOR THE
FEDERAL COURT TO TAKE JURISDICTION, NOT THAT THE PLAINTIFF'S CHOICE
CANNOT BE QUESTIONED.  THE DEFENDANT'S CONSENT TO BE SUED EXTENDS ONLY
TO GIVE THE COURT JURISDICTION OF THE PERSON; IT ASSUMES THAT THE
COURT, HAVING THE PARTIES BEFORE IT, WILL APPLY ALL THE APPLICABLE LAW,
INCLUDING, IN THOSE CASES WHERE IT IS APPROPRIATE, ITS DISCRETIONARY
JUDGMENT AS TO WHETHER THE SUIT SHOULD BE ENTERTAINED.  IN ALL CASES IN
WHICH THE DOCTRINE OF FORUM NON CONVENIENS COMES INTO PLAY, IT
PRESUPPOSES AT LEAST TWO FORUMS IN WHICH THE DEFENDANT IS AMENABLE TO
PROCESS; THE DOCTRINE FURNISHES CRITERIA FOR CHOICE BETWEEN THEM. 

                                 II. 

THE PRINCIPLE OF FORUM NON CONVENIENS IS SIMPLY THAT A COURT MAY
RESIST IMPOSITION UPON ITS JURISDICTION EVEN WHEN JURISDICTION IS
AUTHORIZED BY THE LETTER OF A GENERAL VENUE STATUTE.  THESE STATUTES
ARE DRAWN WITH A NECESSARY GENERALITY AND USUALLY GIVE A PLAINTIFF A
CHOICE OF COURTS, SO THAT HE MAY BE QUITE SURE OF SOME PLACE IN WHICH
TO PURSUE HIS REMEDY.  BUT THE OPEN DOOR MAY ADMIT THOSE WHO SEEK NOT
SIMPLY JUSTICE BUT PERHAPS JUSTICE BLENDED WITH SOME HARASSMENT.  A
PLAINTIFF SOMETIMES IS UNDER TEMPTATION TO RESORT TO A STRATEGY OF
FORCING THE TRIAL AT A MOST INCONVENIENT PLACE FOR AN ADVERSARY, EVEN
AT SOME INCONVENIENCE TO HIMSELF. 

MANY OF THE STATES HAVE MET MISUSE OF VENUE BY INVESTING COURTS WITH
A DISCRETION TO CHANGE THE PLACE OF TRIAL ON VARIOUS GROUNDS, SUCH AS
THE CONVENIENCE OF WITNESSES AND THE ENDS OF JUSTICE.  FN5  THE FEDERAL
LAW CONTAINS NO SUCH EXPRESS CRITERIA TO GUIDE THE DISTRICT COURT IN
EXERCISING ITS POWER.  BUT THE PROBLEM IS A VERY OLD ONE AFFECTING THE
ADMINISTRATION OF THE COURTS AS WELL AS THE RIGHTS OF LITIGANTS, AND
BOTH IN ENGLAND AND IN THIS COUNTRY THE COMMON LAW WORKED OUT
TECHNIQUES AND CRITERIA FOR DEALING WITH IT.  FN6 

WISELY, IT HAS NOT BEEN ATTEMPTED TO CATALOGUE THE CIRCUMSTANCES
WHICH WILL JUSTIFY OR REQUIRE EITHER GRANT OR DENIAL OF REMEDY.  THE
DOCTRINE LEAVES MUCH TO THE DISCRETION OF THE COURT TO WHICH PLAINTIFF
RESORTS, AND EXPERIENCE HAS NOT SHOWN A JUDICIAL TENDENCY TO RENOUNCE
ONE'S OWN JURISDICTION SO STRONG AS TO RESULT IN MANY ABUSES.  FN7 

IF THE COMBINATION AND WEIGHT OF FACTORS REQUISITE TO GIVEN RESULTS
ARE DIFFICULT TO FORECAST OR STATE, THOSE TO BE CONSIDERED ARE NOT
DIFFICULT TO NAME.  AN INTEREST TO BE CONSIDERED, AND THE ONE LIKELY TO
BE MOST PRESSED, IS THE PRIVATE INTEREST OF THE LITIGANT.  IMPORTANT
CONSIDERATIONS ARE THE RELATIVE EASE OF ACCESS TO SOURCES OF PROOF;
AVAILABILITY OF COMPULSORY PROCESS FOR ATTENDANCE OF UNWILLING, AND THE
COST OF OBTAINING ATTENDANCE OF WILLING, WITNESSES; POSSIBILITY OF VIEW
OF PREMISES, IF VIEW WOULD BE APPROPRIATE TO THE ACTION; AND ALL OTHER
PRACTICAL PROBLEMS THAT MAKE TRIAL OF A CASE EASY, EXPEDITIOUS AND
INEXPENSIVE.  THERE MAY ALSO BE QUESTIONS AS TO THE ENFORCIBILITY OF A
JUDGMENT IF ONE IS OBTAINED.  THE COURT WILL WEIGH RELATIVE ADVANTAGES
AND OBSTACLES TO FAIR TRIAL.  IT IS OFTEN SAID THAT THE PLAINTIFF MAY
NOT, BY CHOICE OF AN INCONVENIENT FORUM, "VEX," "HARASS," OR "OPPRESS"
THE DEFENDANT BY INFLICTING UPON HIM EXPENSE OR TROUBLE NOT NECESSARY
TO HIS OWN RIGHT TO PURSUE HIS REMEDY.  FN8  BUT UNLESS THE BALANCE IS
STRONGLY IN FAVOR OF THE DEFENDANT, THE PLAINTIFF'S CHOICE OF FORUM
SHOULD RARELY BE DISTURBED. 

FACTORS OF PUBLIC INTEREST ALSO HAVE PLACE IN APPLYING THE DOCTRINE. 
ADMINISTRATIVE DIFFICULTIES FOLLOW FOR COURTS WHEN LITIGATION IS PILED
UP IN CONGESTED CENTERS INSTEAD OF BEING HANDLED AT ITS ORIGIN.  JURY
DUTY IS A BURDEN THAT OUGHT NOT TO BE IMPOSED UPON THE PEOPLE OF A
COMMUNITY WHICH HAS NO RELATION TO THE LITIGATION.  IN CASES WHICH
TOUCH THE AFFAIRS OF MANY PERSONS, THERE IS REASON FOR HOLDING THE
TRIAL IN THEIR VIEW AND REACH RATHER THAN IN REMOTE PARTS OF THE
COUNTRY WHERE THEY CAN LEARN OF IT BY REPORT ONLY.  THERE IS A LOCAL
INTEREST IN HAVING LOCALIZED CONTROVERSIES DECIDED AT HOME.  THERE IS
AN APPROPRIATENESS, TOO, IN HAVING THE TRIAL OF A DIVERSITY CASE IN A
FORUM THAT IS AT HOME WITH THE STATE LAW THAT MUST GOVERN THE CASE,
RATHER THAN HAVING A COURT IN SOME OTHER FORUM UNTANGLE PROBLEMS IN
CONFLICT OF LAWS, AND IN LAW FOREIGN TO ITSELF. 

THE LAW OF NEW YORK AS TO THE DISCRETION OF A COURT TO APPLY THE
DOCTRINE OF FORUM NON CONVENIENS, AND AS TO THE STANDARDS THAT GUIDE
DISCRETION IS, SO FAR AS HERE INVOLVED, THE SAME AS THE FEDERAL RULE. 
MURNAN V. WABASH R. CO., 246 N.Y. 244, 158 N.E. 508; WEDEMANN V. UNITED
STATES TRUST CO., 258 N.Y. 315, 179 N.E. 712; SEE GREGONIS V.
PHILADELPHIA AND READING CO., 235 N.Y. 152, 139 N.E. 223.  IT WOULD NOT
BE PROFITABLE, THEREFORE, TO PURSUE INQUIRY AS TO THE SOURCE FROM WHICH
OUR RULE MUST FLOW. 

         III. 

TURNING TO THE QUESTION WHETHER THIS IS ONE OF THOSE RATHER RARE
CASES WHERE THE DOCTRINE SHOULD BE APPLIED, WE LOOK FIRST TO THE
INTERESTS OF THE LITIGANTS. 

THE PLAINTIFF HIMSELF IS NOT A RESIDENT OF NEW YORK, NOR DID ANY
EVENT CONNECTED WITH THE CASE TAKE PLACE THERE, NOR DOES ANY WITNESS,
WITH THE POSSIBLE EXCEPTION OF EXPERTS, LIVE THERE.  NO ONE CONNECTED
WITH THAT SIDE OF THE CASE SAVE COUNSEL FOR THE PLAINTIFF RESIDES
THERE, AND HE HAS CANDIDLY TOLD US THAT HE WAS RETAINED BY INSURANCE
COMPANIES INTERESTED PRESUMABLY BECAUSE OF SUBROGATION.  HIS AFFIDAVITS
AND ARGUMENT ARE DEVOTED TO CONTROVERTING CLAIMS AS TO DEFENDANT'S
INCONVENIENCE RATHER THAN TO SHOWING THAT THE PRESENT FORUM SERVES ANY
CONVENIENCE OF HIS OWN, WITH ONE EXCEPTION.  THE ONLY JUSTIFICATION FOR
TRIAL IN NEW YORK ADVANCED HERE IS ONE REJECTED BY THE DISTRICT COURT
AND IS SET FORTH IN THE BRIEF AS FOLLOWS:    "THIS COURT CAN READILY
REALIZE THAT AN ACTION OF THIS TYPE, INVOLVING AS IT DOES A CLAIM FOR
DAMAGES IN AN AMOUNT CLOSE TO $400,000, IS ONE WHICH MAY STAGGER THE
IMAGINATION OF A LOCAL JURY WHICH IS SURELY UNACCUSTOMED TO DEALING
WITH AMOUNTS OF SUCH A NATURE.  FURTHERMORE, REMOVED FROM LYNCHBURG,
THE RESPONDENT WILL HAVE AN OPPORTUNITY TO TRY THIS CASE FREE FROM
LOCAL INFLUENCES AND PRECONCEIVED NOTIONS WHICH MAY MAKE IT DIFFICULT
TO PROCURE A JURY WHICH HAS NO PREVIOUS KNOWLEDGE OF ANY OF THE FACTS
HEREIN." 

THIS UNPROVEN PREMISE THAT JURORS OF NEW YORK LIVE ON TERMS OF
INTIMACY WITH $400,000 TRANSACTIONS IS NOT AN ASSUMPTION WE EASILY
MAKE.  NOR CAN WE ASSUME THAT A JURY FROM LYNCHBURG AND VICINITY WOULD
BE "STAGGERED" BY CONTEMPLATING THE VALUE OF A WAREHOUSE BUILDING THAT
STOOD IN THEIR REGION, OR OF MERCHANDISE AND FIXTURES SUCH AS WERE USED
THERE, NOR ARE THEY LIKELY TO BE STAGGERED BY THE VALUE OF CHATTELS
WHICH THE PEOPLE OF THAT NEIGHBORHOOD PUT IN STORAGE.  IT IS A STRANGE
ARGUMENT ON BEHALF OF A VIRGINIA PLAINTIFF THAT THE COMMUNITY WHICH
GAVE HIM PATRONAGE TO MAKE HIS BUSINESS VALUABLE IS NOT CAPABLE OF
FURNISHING JURORS WHO KNOW THE VALUE OF THE GOODS THEY STORE, THE
BUILDING THEY ARE STORED IN, OR THE BUSINESS THEIR PATRONAGE CREATES. 
AND THERE IS NO SPECIFICATION OF ANY LOCAL INFLUENCE, OTHER THAN
ACCURATE KNOWLEDGE OF LOCAL CONDITIONS, THAT WOULD MAKE A FAIR TRIAL
IMPROBABLE.  THE NET OF THIS IS THAT WE CANNOT SAY THE DISTRICT COURT
WAS BOUND TO ENTERTAIN A PROVINCIAL FEAR OF THE PROVINCIALISM OF A
VIRGINIA JURY.  THAT LEAVES THE VIRGINIA PLAINTIFF WITHOUT EVEN A
SUGGESTED REASON FOR TRANSPORTING THIS SUIT TO NEW YORK. 

DEFENDANT POINTS OUT THAT NOT ONLY THE PLAINTIFF, BUT EVERY PERSON
WHO PARTICIPATED IN THE ACTS CHARGED TO BE NEGLIGENT, RESIDES IN OR
NEAR LYNCHBURG.  IT ALSO CLAIMS A NEED TO INTERPLEAD AN ALLEGED
INDEPENDENT CONTRACTOR WHICH MADE THE DELIVERY OF THE GASOLINE AND
WHICH IS A VIRGINIA CORPORATION DOMICILED IN LYNCHBURG, THAT IT CANNOT
INTERPLEAD IN NEW YORK.  THERE ALSO ARE APPROXIMATELY 350 PERSONS
RESIDING IN AND AROUND LYNCHBURG WHO STORED WITH PLAINTIFF THE GOODS
FOR THE DAMAGE TO WHICH HE SEEKS TO RECOVER.  THE EXTENT TO WHICH THEY
HAVE LEFT THE COMMUNITY SINCE THE FIRE AND THE NUMBER OF THEM WHO WILL
ACTUALLY BE NEEDED IS IN DISPUTE.  THE COMPLAINT ALLEGES THAT
DEFENDANT'S CONDUCT VIOLATED LYNCHBURG ORDINANCES.  CONDITIONS ARE SAID
TO REQUIRE PROOF BY FIREMEN AND BY MANY OTHERS.  THE LEARNED AND
EXPERIENCED TRIAL JUDGE WAS NOT UNAWARE THAT LITIGANTS GENERALLY MANAGE
TO TRY THEIR CASES WITH FEWER WITNESSES THAN THEY PREDICT IN SUCH
MOTIONS AS THIS.  BUT HE WAS JUSTIFIED IN CONCLUDING THAT THIS TRIAL IS
LIKELY TO BE LONG AND TO INVOLVE CALLING MANY WITNESSES, AND THAT
LYNCHBURG, SOME 400 MILES FROM NEW YORK, IS THE SOURCE OF ALL PROOFS
FOR EITHER SIDE, WITH POSSIBLE EXCEPTION OF EXPERTS.  CERTAINLY TO FIX
THE PLACE OF TRIAL AT A POINT WHERE LITIGANTS CANNOT COMPEL PERSONAL
ATTENDANCE AND MAY BE FORCED TO TRY THEIR CASES ON DEPOSITION, IS TO
CREATE A CONDITION NOT SATISFACTORY TO COURT, JURY OR MOST LITIGANTS. 
NOR IS IT NECESSARILY CURED BY THE STATEMENT OF PLAINTIFF'S COUNSEL
THAT HE WILL SEE TO GETTING MANY OF THE WITNESSES TO THE TRIAL AND THAT
SOME OF THEM "WOULD BE DELIGHTED TO COME TO NEW YORK TO TESTIFY." 
THERE MAY BE CIRCUMSTANCES WHERE SUCH A PROPOSAL SHOULD BE GIVEN
WEIGHT.  IN OTHERS, THE OFFER MAY NOT TURN OUT TO BE AS GENEROUS AS
DEFENDANT OR COURT MIGHT SUPPOSE IT TO BE.  SUCH MATTERS ARE FOR THE
DISTRICT COURT TO DECIDE IN EXERCISE OF A SOUND DISCRETION. 

THE COURT LIKEWISE COULD WELL HAVE CONCLUDED THAT THE TASK OF THE
TRIAL COURT WOULD BE SIMPLIFIED BY TRIAL IN VIRGINIA.  IF TRIAL WAS IN
A STATE COURT, IT COULD APPLY ITS OWN LAW TO EVENTS OCCURRING THERE. 
IF IN FEDERAL COURT BY REASON OF DIVERSITY OF CITIZENSHIP, THE COURT
WOULD APPLY THE LAW OF ITS OWN STATE IN WHICH IT IS LIKELY TO BE
EXPERIENCED.  THE COURSE OF ADJUDICATION IN NEW YORK FEDERAL COURT
MIGHT BE BESET WITH CONFLICT OF LAWS PROBLEMS ALL AVOIDED IF THE CASE
IS LITIGATED IN VIRGINIA WHERE IT AROSE. 

WE ARE CONVINCED THAT THE DISTRICT COURT DID NOT EXCEED ITS POWERS OR
THE BOUNDS OF ITS DISCRETION IN DISMISSING PLAINTIFF'S COMPLAINT AND
REMITTING HIM TO THE COURTS OF HIS OWN COMMUNITY.  THE CIRCUIT COURT OF
APPEALS TOOK TOO RESTRICTIVE A VIEW OF THE DOCTRINE AS APPROVED BY THIS
COURT.  ITS JUDGMENT IS REVERSED. 

FN1  GILBERT V. GULF OIL CORP., 62 F.SUPP.  291. 

FN2  GILBERT V. GULF OIL CORP., 153 F.2D 883. 

FN3  SEE 28 U.S.C. SEC. 112; NEIRBO CO. V. BETHLEHEM SHIPBUILDING
CORP., LTD., 308 U.S. 165. 

FN4  THE DOCTRINE DID NOT ORIGINATE IN FEDERAL BUT IN STATE COURTS. 
THIS COURT IN RECOGNIZING AND APPROVING IT BY NAME HAS NEVER INDICATED
THAT IT WAS REJECTING APPLICATION OF THE DOCTRINE TO LAW ACTIONS WHICH
HAD BEEN AN INTEGRAL AND NECESSARY PART OF EVOLUTION OF THE DOCTRINE. 
AND CF. SLATER V. MEXICAN NATIONAL R.R., 194 U.S. 120.  WHEREVER IT IS
APPLIED IN COURTS OF OTHER JURISDICTIONS, ITS APPLICATION DOES NOT
DEPEND ON WHETHER THE ACTION IS AT LAW, COLLARD V. BEACH, 93 APP. DIV.
339, 87 N.Y.S. 884; MURNAN V. WABASH R. CO., 246 N.Y. 244, 158 N.E.
508; JACKSON & SONS V. LUMBERMEN'S MUTUAL CASUALTY CO., 86 N.H. 341,
168 A. 895; OR IN EQUITY, LANGFELDER V. UNIVERSAL LABORATORIES, 293
N.Y. 200, 56 N.E.2D 550; EGBERT V. SHORT, (1907) 2 CH. 205.  SEE
FOOTNOTE 1, KOSTER V. (AMERICAN) LUMBERMENS MUTUAL CASUALTY CO.,
DECIDED THIS DAY, POST, P. 518. 

FN5  SEE FOSTER, PLACE OF TRIAL - INTERSTATE APPLICATION OF
INTRASTATE METHODS OF ADJUSTMENT, 44 HARV. L. REV. 41, 47, 62. 

FN6  SEE LOGAN V. BANK OF SCOTLAND, (1906) 1 K.B. 141; CF. LA SOCIETE
DU GAZ DE PARIS V. LA SOCIETE ANONYME DE NAVIGATION "LES ARMATEURS
FRANCAIS," (1926) SESS. CAS. (H.L.)  13.  COLLARD V. BEACH, 93 APP.
DIV. 339, 87 N.Y.S. 884; JACKSON & SONS V. LUMBERMEN'S MUTUAL CASUALTY
CO., 86 N.H. 341, 168 A. 895; SEE PIETRAROIA V. NEW JERSEY & HUDSON
R.R. CO., 197 N.Y. 434, 91 N.E. 120; GREAT WESTERN RAILWAY CO. V.
MILLER, 19 MICH. 305. 

FN7  SEE DAINOW, THE INAPPROPRIATE FORUM, 29 ILL. L. REV. 867, 889. 

FN8  SEE BLAIR, THE DOCTRINE OF FORUM NON CONVENIENS IN ANGLO
AMERICAN LAW, 29 COL. L. REV. 1. 

MR. JUSTICE REED AND MR. JUSTICE BURTON DISSENT.  THEY DO NOT SET OUT
THE FACTUAL REASONS FOR THEIR DISSENT SINCE THE COURT'S AFFIRMANCE OF
KOSTER V. LUMBERMENS MUTUAL CASUALTY CO., DECIDED TODAY, POST, P. 518,
WOULD CONTROL. 

MR. JUSTICE BLACK, DISSENTING. 

THE DEFENDANT CORPORATION IS ORGANIZED UNDER THE LAWS OF
PENNSYLVANIA, BUT IS QUALIFIED TO DO BUSINESS AND MAINTAINS AN OFFICE
IN NEW YORK.  PLAINTIFF IS AN INDIVIDUAL RESIDING AND DOING BUSINESS IN
VIRGINIA.  THE ACCIDENT IN WHICH PLAINTIFF ALLEGES TO HAVE BEEN DAMAGED
OCCURRED IN LYNCHBURG, VIRGINIA.  PLAINTIFF BROUGHT THIS ACTION IN THE
FEDERAL DISTRICT COURT IN NEW YORK.  SECTION 11 OF THE JUDICIARY ACT OF
1789, 1 STAT. 78, CARRIED OVER INTO THE JUDICIAL CODE, SEC. 24, 28
U.S.C. SEC. 41(1), CONFERS JURISDICTION UPON FEDERAL DISTRICT COURTS OF
ALL ACTIONS AT LAW BETWEEN CITIZENS OF DIFFERENT STATES.  THE COURT
DOES NOT SUGGEST THAT THE FEDERAL DISTRICT COURT IN NEW YORK LACKS
JURISDICTION UNDER THIS STATUTE OR THAT THE VENUE WAS IMPROPER IN THIS
CASE.  28 U.S.C. SEC. 112.  CF. NEIRBO CO. V. BETHLEHEM CORP., 308 U.S.
165.  BUT IT HOLDS THAT A DISTRICT COURT MAY ABDICATE ITS JURISDICTION
WHEN A DEFENDANT SHOWS TO THE SATISFACTION OF A DISTRICT COURT THAT IT
WOULD BE MORE CONVENIENT AND LESS VEXATIOUS FOR THE DEFENDANT IF THE
TRIAL WERE HELD IN ANOTHER JURISDICTION.  NEITHER THE VENUE STATUTE NOR
THE STATUTE WHICH HAS GOVERNED JURISDICTION SINCE 1789 CONTAINS ANY
INDICATION OR IMPLICATION THAT A FEDERAL DISTRICT COURT, ONCE SATISFIED
THAT JURISDICTION AND VENUE REQUIREMENTS HAVE BEEN MET, MAY DECLINE TO
EXERCISE ITS JURISDICTION.  EXCEPT IN RELATION TO THE EXERCISE OF THE
EXTRAORDINARY ADMIRALTY AND EQUITY POWERS OF DISTRICT COURTS, THIS
COURT HAS NEVER BEFORE HELD CONTRARY TO THE GENERAL PRINCIPLE THAT "THE
COURTS OF THE UNITED STATES ARE BOUND TO PROCEED TO JUDGMENT, AND TO
AFFORD REDRESS TO SUITORS BEFORE THEM, IN EVERY CASE TO WHICH THEIR
JURISDICTION EXTENDS.  THEY CANNOT ABDICATE THEIR AUTHORITY OR DUTY IN
ANY CASE IN FAVOR OF ANOTHER JURISDICTION."  HYDE V. STONE, 20 HOW. 
170, 175, QUOTED WITH APPROVAL IN CHICOT COUNTY V. SHERWOOD, 148 U.S.
529, 534.  SEE ALSO DENNICK V. RAILROAD CO., 103 U.S. 11; BALTIMORE &
O.R. CO. V. KEPNER, 314 U.S. 44; EVEY V. MEXICAN C.R. CO., 81 F. 294. 
FN1  NEVER UNTIL TODAY HAS THIS COURT HELD, IN ACTIONS FOR MONEY
DAMAGES FOR VIOLATIONS OF COMMON LAW OR STATUTORY RIGHTS, THAT A
DISTRICT COURT CAN ABDICATE ITS STATUTORY DUTY TO EXERCISE ITS
JURISDICTION FOR THE ALLEGED CONVENIENCE OF THE DEFENDANT TO A
LAWSUIT.  COMPARE SLATER V. MEXICAN NATIONAL R. CO., 194 U.S. 120. 

FOR REASONS PECULIAR TO THE SPECIAL PROBLEMS OF ADMIRALTY AND TO THE
EXTRAORDINARY REMEDIES OF EQUITY, THE COURTS EXERCISING ADMIRALTY AND
EQUITY POWERS HAVE BEEN PERMITTED AT TIMES TO DECLINE TO EXERCISE THEIR
JURISDICTION.  CANADA MALTING CO. V. PATERSON S.S. CO., 285 U.S. 413;
ROGERS V. GUARANTY TRUST CO., 288 U.S. 123; CF. WILLIAMS V. GREEN BAY &
W.R. CO., 326 U.S. 549.  THIS EXCEPTION IS ROOTED IN THE KIND OF RELIEF
WHICH THESE COURTS GRANT AND THE KINDS OF PROBLEMS WHICH THEY SOLVE. 
SEE MEREDITH V. WINTER HAVEN, 320 U.S. 228, 235; BURFORD V. SUN OIL
CO., 319 U.S. 315, 333 N. 29.  COURTS OF EQUITY DEVELOPED TO AFFORD
RELIEF WHERE A MONEY JUDGMENT IN THE COMMON LAW COURTS PROVIDED NO
ADEQUATE REMEDY FOR AN INJURED PERSON N2.  FROM THE BEGINNING OF
EQUITABLE JURISDICTION UP TO NOW, THE CHANCERY COURTS HAVE GENERALLY
GRANTED OR WITHHELD THEIR SPECIAL REMEDIES AT THEIR DISCRETION; AND
"COURTS OF ADMIRALTY  ...  ACT UPON ENLARGED PRINCIPLES OF EQUITY." 
O'BRIEN V. MILLER, 168 U.S. 287, 297.  BUT THIS COURT HAS, ON MANY
OCCASIONS, SEVERELY RESTRICTED THE DISCRETION OF DISTRICT COURTS TO
DECLINE TO GRANT EVEN THE EXTRAORDINARY EQUITABLE REMEDIES.  MEREDITH
V. WINTER HAVEN, SUPRA, AND CASES THERE CITED AT 234, 235.  PREVIOUSLY
FEDERAL COURTS HAVE NOT GENERALLY BEEN ALLOWED THE BROAD AND INDEFINITE
DISCRETION TO DISPOSE EVEN OF EQUITY CASES SOLELY ON A TRIAL COURT'S
JUDGMENT OF THE RELATIVE CONVENIENCE OF THE FORUM FOR THE PARTIES
THEMSELVES.  FOR A MAJOR FACTOR IN THESE EQUITY DECISIONS HAS BEEN THE
RELATIVE ABILITY OF THE FORUM TO SHAPE AND EXECUTE ITS EQUITABLE
REMEDY.  CF. ROGERS V. GUARANTY TRUST CO., SUPRA. 

NO SUCH DISCRETIONARY AUTHORITY TO DECLINE TO DECIDE A CASE, HOWEVER,
HAS, BEFORE TODAY, BEEN VESTED IN FEDERAL COURTS IN ACTIONS FOR MONEY
JUDGMENTS DERIVING FROM STATUTES OR THE COMMON LAW.  FN3  TO ENGRAFT
THE DOCTRINE OF FORUM NON CONVENIENS UPON THE STATUTES FIXING
JURISDICTION AND PROPER VENUE IN THE DISTRICT COURTS IN SUCH ACTIONS,
SEEMS TO ME TO BE FAR MORE THAN THE MERE FILLING IN OF THE INTERSTICES
OF THOSE STATUTES.  FN4 

IT MAY BE THAT A STATUTE SHOULD BE PASSED AUTHORIZING THE FEDERAL
DISTRICT COURTS TO DECLINE TO TRY SO-CALLED COMMON LAW CASES ACCORDING
TO THE CONVENIENCE OF THE PARTIES.  BUT WHETHER THERE SHOULD BE SUCH A
STATUTE, AND DETERMINATION OF ITS SCOPE AND THE SAFEGUARDS WHICH SHOULD
SURROUND IT, ARE, IN MY JUDGMENT, QUESTIONS OF POLICY WHICH CONGRESS
SHOULD DECIDE.  THERE ARE STRONG ARGUMENTS PRESENTED BY THE COURT IN
ITS OPINION WHY FEDERAL COURTS EXERCISING THEIR COMMON LAW JURISDICTION
SHOULD HAVE THE DISCRETIONARY POWERS WHICH EQUITY COURTS HAVE ALWAYS
POSSESSED IN DISPENSING EQUITABLE RELIEF.  I THINK EQUALLY STRONG
ARGUMENTS COULD BE ADVANCED TO SHOW THAT THEY SHOULD NOT.  FOR ANY
INDIVIDUAL OR CORPORATE DEFENDANT WHO DOES PART OF HIS BUSINESS IN
STATES OTHER THAN THE ONE IN WHICH HE IS SUED WILL ALMOST INVARIABLY BE
PUT TO SOME INCONVENIENCE TO DEFEND HIMSELF.  IT WILL BE A POORLY
REPRESENTED MULTISTATE DEFENDANT WHO CANNOT PRODUCE SUBSTANTIAL
EVIDENCE AND GOOD REASONS FITTING THE RULE NOW ADOPTED BY THIS COURT
TENDING TO ESTABLISH THAT THE FORUM OF THE ACTION AGAINST HIM IS MOST
INCONVENIENT.  THE COURT'S NEW RULE WILL THUS CLUTTER THE VERY
THRESHOLD OF THE FEDERAL COURTS WITH A PRELIMINARY TRIAL OF FACT
CONCERNING THE RELATIVE CONVENIENCE OF FORUMS.  THE PRELIMINARY
DISPOSITION OF THIS FACTUAL QUESTION WILL, I BELIEVE, PRODUCE THE VERY
KIND OF UNCERTAINTY, CONFUSION, AND HARDSHIP WHICH STALLED AND
HANDICAPPED PERSONS SEEKING COMPENSATION FOR MARITIME INJURIES
FOLLOWING THIS COURT'S DECISION IN SOUTHERN PACIFIC CO. V. JENSEN, 244
U.S. 205.  THE BROAD AND INDEFINITE DISCRETION LEFT TO FEDERAL COURTS
TO DECIDE THE QUESTION OF CONVENIENCE FROM THE WELTER OF FACTORS WHICH
ARE RELEVANT TO SUCH A JUDGMENT, WILL INEVITABLY PRODUCE A COMPLEX OF
CLOSE AND INDISTINGUISHABLE DECISIONS FROM WHICH ACCURATE PREDICTION OF
THE PROPER FORUM WILL BECOME DIFFICULT, IF NOT IMPOSSIBLE.  YET
PLAINTIFFS WILL BE ASKED "TO DETERMINE WITH CERTAINTY BEFORE BRINGING
THEIR ACTIONS THAT FACTUAL QUESTION OVER WHICH COURTS REGULARLY DIVIDE
AMONG THEMSELVES AND WITHIN THEIR OWN MEMBERSHIP.  AS PENALTY FOR
ERROR, THE INJURED INDIVIDUAL MAY NOT ONLY SUFFER SERIOUS FINANCIAL
LOSS THROUGH THE DELAY AND EXPENSE OF LITIGATION, BUT DISCOVER THAT HIS
CLAIM HAS BEEN BARRED BY THE STATUTE OF LIMITATIONS IN THE PROPER FORUM
WHILE HE WAS ERRONEOUSLY PURSUING IT ELSEWHERE."  DAVIS V. DEPT. OF
LABOR & INDUSTRIES, 317 U.S. 249, 254. 

THIS VERY CASE ILLUSTRATES THE HAZARDS OF DELAY.  IT MUST BE BEGUN
ANEW IN ANOTHER FORUM AFTER THE DISTRICT COURT, THE CIRCUIT COURT OF
APPEALS, AND NOW THIS COURT, HAVE HAD THEIR TIME-CONSUMING SAY AS TO
THE RELATIVE CONVENIENCE OF THE FORUM IN WHICH THE PLAINTIFF CHOSE TO
SEEK REDRESS.  WHETHER THE STATUTE OF LIMITATIONS HAS RUN AGAINST THE
PLAINTIFF, WE DO NOT KNOW.  THE CONVENIENCE WHICH THE INDIVIDUAL
DEFENDANT WILL ENJOY FROM THE COURT'S NEW RULE OF FORUM NON CONVENIENS
IN LAW ACTIONS MAY BE THOUGHT TO JUSTIFY ITS INHERENT DELAYS,
UNCERTAINTIES, ADMINISTRATIVE COMPLICATIONS AND HARDSHIPS.  BUT IN ANY
EVENT, CONGRESS HAS NOT YET SAID SO; AND I DO NOT THINK THAT THIS COURT
SHOULD, 150 YEARS AFTER THE PASSAGE OF THE JUDICIARY ACT, FILL IN WHAT
IT THINKS IS A DEFICIENCY IN THE DELIBERATE POLICY WHICH CONGRESS
ADOPTED.  FN5  WHETHER THE DOCTRINE OF FORUM NON CONVENIENS IS GOOD OR
BAD, I SHOULD WAIT FOR CONGRESS TO ADOPT IT.    FN1  IN MONDOU V. NEW
YORK, N.H. & H.R. CO., 223 U.S. 1, 58, IT WAS STATED THAT:  "THE
EXISTENCE OF THE JURISDICTION CREATES AN IMPLICATION OF DUTY TO
EXERCISE IT, AND THAT ITS EXERCISE MAY BE ONEROUS DOES NOT MILITATE
AGAINST THAT IMPLICATION."  CF. DOUGLAS V. NEW YORK, N.H. & H.R. CO.,
279 U.S. 377, 388. 

FN2  ALTHOUGH THE DISTINCTION BETWEEN ACTIONS AT LAW AND SUITS IN
EQUITY IN FEDERAL COURTS HAS BEEN ABOLISHED BY THE ADOPTION OF THE
SINGLE FORM OF CIVIL ACTION, RULE 2, F.R.C.P., SEE 1 MOORE, FEDERAL
PRACTICE (1938) C. 2, THERE REMAINS TO FEDERAL COURTS THE SAME
DISCRETION, NO MORE AND NO LESS, IN THE EXERCISE OF SPECIAL EQUITABLE
REMEDIES AS EXISTED BEFORE THE ADOPTION OF THE FEDERAL RULES.  NEITHER
THE RULES, THE STATUTES, TRADITION, NOR PRACTICAL CONSIDERATIONS
JUSTIFY APPLICATION OF EQUITABLE DISCRETION TO ACTIONS FOR MONEY
JUDGMENTS BASED ON COMMON LAW OR STATUTORY RIGHTS. 

FN3  THIS COURT, WHOSE JURISDICTION IS PRIMARILY APPELLATE, HAS HELD
THAT IT NEED NOT EXERCISE ITS CONSTITUTIONALLY GRANTED ORIGINAL
JURISDICTION EVEN AT COMMON LAW WHERE THERE IS ANOTHER SUITABLE FORUM. 
GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 464-65.  BUT THE
CONSTITUTION, NOT CONGRESS, FIXES THIS COURT'S JURISDICTION.  AND IT
WAS THIS COURT'S DUTY TO INTERPRET ITS CONSTITUTIONAL JURISDICTION.  IT
IS THE DUTY OF CONGRESS TO FIX THE JURISDICTION OF THE DISTRICT COURTS
BY STATUTE.  IT DID SO.  IT IS NOT THE DUTY OF THIS COURT TO AMEND THAT
STATUTE. 

FN4  "I RECOGNIZE WITHOUT HESITATION THAT JUDGES DO AND MUST
LEGISLATE, BUT THEY CAN DO SO ONLY INTERSTITIALLY; THEY ARE CONFINED
FROM MOLAR TO MOLECULAR MOTIONS."  HOLMES, J., DISSENTING IN SOUTHERN
PACIFIC CO. V. JENSEN, 244 U.S. 205, 218, 221.  SEE ALSO DISSENTING
OPINION, STATE TAX COMMISSION V. ALDRICH, 316 U.S. 174, 185, 202, N. 23
AND AUTHORITIES THERE COLLECTED. 

FN5  THE VERY LAW REVIEW ARTICLES WHICH ARE RELIED UPON TO DOCUMENT
THIS THEORY OF A FEDERAL RULE OF FORUM NON CONVENIENS REVEAL THAT
JUDICIAL ADOPTION OF THIS THEORY WITHOUT A NEW ACT OF CONGRESS WOULD BE
AN UNWARRANTED JUDICIAL INNOVATION.  FOSTER, PLACE OF TRIAL -
INTERSTATE APPLICATION OF INTRASTATE METHODS OF ADJUSTMENT, 44 HARV. L.
REV. 41, 52; BLAIR, THE DOCTRINE OF FORUM NON CONVENIENS IN ANGLO
AMERICAN LAW, 29 COL. L. REV. 1, 18.  FOR INSTANCE, IT IS STATED THAT
"NO MATTER HOW LITTLE DISPUTE THERE IS AS TO THE DESIRABILITY OF SUCH
LEGISLATION, THERE IS COMPARATIVELY LITTLE CHANCE OF OVERCOMING
LEGISLATIVE INERTIA AND SECURING ITS PASSAGE UNLESS SOME ACCIDENT
HAPPENS TO FOCUS ATTENTION UPON IT.  THE BEST HOPE IS THAT THE COURTS
WILL FEEL FREE TO TAKE APPROPRIATE ACTION WITHOUT SPECIFIC LEGISLATION
AUTHORIZING THEM TO DO SO."  FOSTER, SUPRA AT 52. 

MR. JUSTICE RUTLEDGE JOINS IN THIS OPINION. 
..END :











KOSTER V. LUMBERMENS MUTUAL CO., 330 U.S. 518 


NO. 206.  ARGUED DECEMBER 19, 1946.  - DECIDED MARCH 10, 1947.  - 153
F.2D 888, AFFIRMED. 


1.  IN THE CIRCUMSTANCES OF THIS CASE, A FEDERAL DISTRICT COURT IN NEW
YORK WAS JUSTIFIED IN APPLYING THE DOCTRINE OF FORUM NON CONVENIENS AND
DISMISSING A DERIVATIVE SUIT BROUGHT IN HIS HOME DISTRICT ON THE GROUND
OF DIVERSITY OF CITIZENSHIP BY A POLICYHOLDER IN AN ILLINOIS MUTUAL
INSURANCE COMPANY ALLEGING BREACHES OF TRUST IN THE MANAGEMENT OF THE
COMPANY'S AFFAIRS AND PRAYING FOR AN ACCOUNTING AND RESTITUTION.  PP.
521-532. 

2.  IN A DERIVATIVE SUIT, A FEDERAL DISTRICT COURT MAY REFUSE TO
EXERCISE ITS JURISDICTION WHEN A DEFENDANT SHOWS MUCH HARASSMENT AND
PLAINTIFF'S RESPONSE NOT ONLY DISCLOSES LITTLE COUNTERVAILING BENEFIT
TO HIMSELF IN THE CHOICE OF FORUM, BUT ALSO INDICATES SUCH DISADVANTAGE
AS TO SUPPORT THE INFERENCE THAT THE FORUM CHOSEN WOULD NOT ORDINARILY
BE THOUGHT A SUITABLE ONE TO DECIDE THE CONTROVERSY.  PP. 531-532. 

3.  THIS COURT CANNOT SAY THAT THE DISTRICT COURT ABUSED ITS
DISCRETION IN THIS CASE IN GIVING WEIGHT TO THE UNDENIED SWORN
STATEMENTS OF FACT IN DEFENDANT'S MOTION PAPERS, ESPECIALLY WHERE
PLAINTIFF'S ANSWERING AFFIDAVIT FAILED TO ADVANCE ANY REASON OF
CONVENIENCE TO THE PLAINTIFF.  P. 531. 

4.  WHERE THE DOCTRINE OF FORUM NON CONVENIENS IS INVOKED IN A
DERIVATIVE SUIT, THE COMPLEXITIES AND UNIQUE FEATURES OF SUCH SUITS ARE
RELEVANT TO THE APPLICATION OF THE DOCTRINE.  PP. 522, 525-526. 

5.  ALTHOUGH A PLAINTIFF'S OWN INTEREST IN A DERIVATIVE SUIT MAY BE
SMALL, IF THE CONDITIONS LAID DOWN BY RULE 23 OF THE RULES OF CIVIL
PROCEDURE FOR SECONDARY ACTIONS BY SHAREHOLDERS ARE COMPLIED WITH AND
JURISDICTION IS ESTABLISHED, THE FEDERAL COURTS ARE EMPOWERED TO
ENTERTAIN SUCH SUITS; BUT THE PECULIARITIES OF SUCH SUITS SHOULD NOT BE
OVERLOOKED.  PP. 523-524. 

6.  WHERE THERE ARE HUNDREDS OF POTENTIAL PLAINTIFFS, ALL EQUALLY
ENTITLED VOLUNTARILY TO INVEST THEMSELVES WITH THE CORPORATION'S CAUSE
OF ACTION AND ALL OF WHOM COULD WITH EQUAL SHOW OF RIGHT GO INTO THEIR
MANY HOME COURTS, THE CLAIM OF ANY ONE PLAINTIFF THAT A FORUM IS
APPROPRIATE MERELY BECAUSE IT IS HIS HOME FORUM IS CONSIDERABLY
WEAKENED.  P. 524. 

7.  IN APPLYING THE DOCTRINE OF FORUM NON CONVENIENS, THE ULTIMATE
INQUIRY IS WHERE TRIAL WILL BEST SERVE THE CONVENIENCE OF THE PARTIES
AND THE ENDS OF JUSTICE.  P. 527. 

8. ROGERS V. GUARANTY TRUST CO., 288 U.S. 123, CONSIDERED; WILLIAMS
V. GREEN BAY & WESTERN R. CO., 326 U.S. 549, DISTINGUISHED.  PP. 528
529. 

KOSTER V. (AMERICAN) LUMBERMENS MUTUAL CASUALTY CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

APPLYING THE DOCTRINE OF FORUM NON CONVENIENS, A FEDERAL DISTRICT
COURT IN NEW YORK DISMISSED A DERIVATIVE SUIT BROUGHT BY A POLICYHOLDER
IN AN ILLINOIS MUTUAL INSURANCE COMPANY.  64 F.SUPP.  595.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  153 F.2D 888.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 700.  AFFIRMED, P. 532. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS IS A DERIVATIVE ACTION, IN EQUITY AS ARE ALL SUCH DERIVATIVE
ACTIONS, BEGUN BY PLAINTIFF AS A MEMBER AND POLICYHOLDER OF LUMBERMENS
MUTUAL CASUALTY COMPANY "IN THE RIGHT OF LUMBERMEN'S AND ON BEHALF OF
ALL ITS MEMBERS AND POLICY HOLDERS."  IT WAS BROUGHT IN THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, OF WHICH
PLAINTIFF IS A CITIZEN.  JURISDICTION RESTS ON DIVERSITY OF
CITIZENSHIP.  THE DEFENDANTS ARE THE LUMBERMENS MUTUAL CASUALTY
COMPANY, A NOMINAL DEFENDANT, ORGANIZED UNDER THE LAWS OF ILLINOIS; ONE
JAMES S. KEMPER, PRESIDENT AND MANAGER THEREOF, A CITIZEN OF ILLINOIS,
AND JAMES S. KEMPER & CO., AN ILLINOIS CORPORATION.  THE RELIEF ASKED
IS THAT THE OTHER DEFENDANTS ACCOUNT TO LUMBERMENS, FOR DAMAGES IT HAS
SUSTAINED AND FOR PROFITS THEY HAVE REALIZED ON CERTAIN TRANSACTIONS. 
IT IS ALLEGED THAT DEFENDANT KEMPER, AS AN OFFICER OF THE COMPANY, HAS
BEEN GUILTY OF BREACHES OF TRUST BY WHICH HE, HIS FAMILY CORPORATION
AND HIS FRIENDS HAVE PROFITED.  PLAINTIFF CHARGES THAT KEMPER'S SALARY
WAS IMPROVIDENTLY INCREASED FROM LESS THAN $75,000 TO OVER $251,000;
THAT ALTHOUGH LUMBERMENS WAS STAFFED AND EQUIPPED TO WRITE INSURANCE
WITHOUT THE INTERVENTION OF ANY AGENCY, HE EMPLOYED THE KEMPER COMPANY
AND PAID IT "SUBSTANTIAL SUMS" AS "COMMISSIONS, FEES AND OTHERWISE" TO
LUMBERMENS' PREJUDICE AND KEMPER'S PROFIT, AND THAT KEMPER CAUSED
ASSETS OF LUMBERMENS TO BE SOLD TO HIMSELF AND FAVORITES AT PRICES LESS
THAN THEIR VALUES.  KEMPER INDIVIDUALLY WAS NEVER SERVED IN NEW YORK. 
UNLESS HE SHOULD BE FOUND WITHIN THAT JURISDICTION, SOME OF THE ALLEGED
CAUSES OF ACTION CANNOT BE TRIED IN THIS ACTION IN ANY EVENT FOR WANT
OF AN INDISPENSABLE PARTY.  SOME OF ITS ISSUES COULD BE TRIED WITHOUT
HIM. 

THE DISTRICT COURT, ON MOTION TO DISMISS UNDER THE DOCTRINE OF FORUM
NON CONVENIENS,  FN1  FOUND THAT LUMBERMENS DOES BUSINESS IN FORTY
EIGHT STATES, BUT ITS HOME AND PRINCIPAL PLACE OF BUSINESS ARE IN
ILLINOIS.  THERE ITS DIRECTORS LIVE; THERE ALL RECORDS ARE KEPT; AND NO
WITNESS SHOWN TO BE NECESSARY TO EITHER SIDE OF THE CASE RESIDES
OUTSIDE OF ILLINOIS.  THE PLAINTIFF HIMSELF LIVES IN NEW YORK, BUT HE
DOES NOT APPEAR TO HAVE ATTENDED ANY MEETINGS OF POLICYHOLDERS OR TO
HAVE RAISED OBJECTION TO THE ACTS ALLEGED, OR OTHERWISE TO HAVE
PERSONAL KNOWLEDGE SO THAT HE COULD POSSIBLY BE A WITNESS EXCEPT AS TO
HIS OWNERSHIP OF THE POLICY OF INSURANCE WHICH IS NOT DENIED.  IT WOULD
APPEAR NECESSARY FOR HIM TO MAKE HIS OWN CASE LARGELY FROM BOOKS AND
RECORDS IN CHICAGO AND FROM TESTIMONY OF OFFICERS AND WITNESSES
RESIDENT THERE.  IT ALSO IS EVIDENT THAT THE LEGALITY OF MANY OF THESE
TRANSACTIONS WILL TURN ON THE LAW OF ILLINOIS, UNDER WHICH LUMBERMENS
EXISTS AND WITHIN WHOSE TERRITORY THE QUESTIONED ACTS TOOK PLACE.  THAT
WOULD BE HOME LAW IF THE CASE WERE TRIED IN CHICAGO; IT WOULD BE
FOREIGN LAW TO NEW YORK AND THE CASE, IF TRIED THERE, WOULD INVOLVE
CONFLICT OF LAWS.  IT ALSO IS URGED THAT PLAINTIFF'S TOTAL OF PREMIUM
PAYMENTS IS LESS THAN $250, WHICH WOULD BE THE MAXIMUM POSSIBLE
INTEREST HE PERSONALLY COULD HAVE IN THE CONTROVERSY. 

UNDER THESE CIRCUMSTANCES, TWO COURTS BELOW CONCURRED IN THE VIEW
THAT THE CASE SHOULD NOT BE TRIED IN NEW YORK AS THERE WAS AMPLE REMEDY
AVAILABLE IN THE STATE AND FEDERAL COURTS OF ILLINOIS.  BOTH RELIED
UPON ROGERS V. GUARANTY TRUST CO., 288 U.S. 123.  THE DISSENTING JUDGE
BELOW CONSIDERED THAT OUR MORE RECENT DECISION IN WILLIAMS V. GREEN BAY
& WESTERN R.R., 326 U.S. 549, IMPLIES DISAPPROVAL OF THE ROGERS CASE
AND RESTRICTS APPLICATION OF THE DOCTRINE OF FORUM NON CONVENIENS.  WE
BROUGHT THE CASE HERE ON CERTIORARI.  329 U.S. 700. 

THIS CASE INVOLVES THE SPECIAL PROBLEMS OF FORUM NON CONVENIENS WHICH
INHERE IN DERIVATIVE ACTIONS, AND WHICH HAVE BEEN LITTLE CONSIDERED BY
THIS COURT.  WILLIAMS V. GREEN BAY & WESTERN R.R., 326 U.S. 549, WAS
NOT A DERIVATIVE ACTION BROUGHT IN THE RIGHT OF A NOMINAL DEFENDANT
CORPORATION.  ROGERS V. GUARANTY TRUST CO., 288 U.S. 123, WAS A
DERIVATIVE ACTION, BUT THAT FEATURE OF THE CASE WAS GIVEN ALMOST NO
ATTENTION AND THE EMPHASIS WAS ENTIRELY ON THE EXTENT TO WHICH IT
INVOLVED INQUIRY INTO THE "INTERNAL AFFAIRS OF A FOREIGN CORPORATION,"
CERTAINLY NOT THE MOST DISTINGUISHING FEATURE OF THESE ACTIONS. 

THE STOCKHOLDER'S DERIVATIVE ACTION, TO WHICH THIS POLICYHOLDER'S
ACTION IS ANALOGOUS, IS AN INVENTION OF EQUITY TO SUPPLY THE WANT OF AN
ADEQUATE REMEDY AT LAW TO REDRESS BREACHES OF FIDUCIARY DUTY BY
CORPORATE MANAGERS.  USUALLY THE WRONGDOING OFFICERS ALSO POSSESS THE
CONTROL WHICH ENABLES THEM TO SUPPRESS ANY EFFORT BY THE CORPORATE
ENTITY TO REMEDY SUCH WRONGS.  EQUITY THEREFORE TRADITIONALLY
ENTERTAINS THE DERIVATIVE OR SECONDARY ACTION BY WHICH A SINGLE
STOCKHOLDER MAY SUE IN THE CORPORATION'S RIGHT WHEN HE SHOWS THAT THE
CORPORATION ON PROPER DEMAND HAS REFUSED TO PURSUE A REMEDY, OR SHOWS
FACTS THAT DEMONSTRATE THE FUTILITY OF SUCH A REQUEST.  WITH POSSIBLE
RARE EXCEPTIONS, THESE ACTIONS INVOLVE ONLY ISSUES OF STATE LAW AND, AS
IN THE PRESENT CASE, CAN GET INTO FEDERAL COURTS ONLY BY REASON OF
DIVERSITY IN CITIZENSHIP OF THE PARTIES.  THEIR EXISTENCE AND PECULIAR
CHARACTER WERE RECOGNIZED BY THIS COURT IN THE OLD EQUITY RULES.  RULE
27, 226 U.S. 656.  THE COMPLEXITIES AND UNIQUE FEATURES OF THESE
ACTIONS, HOWEVER, ARE RELEVANT TO THE FORUM NON CONVENIENS ISSUE, FOR
IN THESE, AS IN ALL OTHER PETITIONS FOR EQUITABLE RELIEF, HE WHO SEEKS
EQUITY MUST DO EQUITY, AND THE COURT WILL BE ALERT TO SEE THAT ITS
PECULIAR REMEDIAL PROCESS IS IN NO WAY ABUSED. 

THE CAUSE OF ACTION WHICH SUCH A PLAINTIFF BRINGS BEFORE THE COURT IS
NOT HIS OWN BUT THE CORPORATION'S.  FN2  IT IS THE REAL PARTY IN
INTEREST AND HE IS ALLOWED TO ACT IN PROTECTION OF ITS INTEREST
SOMEWHAT AS A "NEXT FRIEND" MIGHT DO FOR AN INDIVIDUAL, BECAUSE IT IS
DISABLED FROM PROTECTING ITSELF.  IF, HOWEVER, SUCH A CASE AS THIS WERE
TREATED AS OTHER ACTIONS, THE FEDERAL COURT WOULD REALIGN THE PARTIES
FOR JURISDICTIONAL PURPOSES ACCORDING TO THEIR REAL INTERESTS.  IN THIS
CASE, WHICH IS TYPICAL OF MANY, THIS WOULD PUT LUMBERMENS ON THE
PLAINTIFF'S SIDE.  ILLINOIS CORPORATIONS WOULD THEN APPEAR AMONG
PLAINTIFFS AND AMONG DEFENDANTS, AND JURISDICTION WOULD BE OUSTED. 
INDIANAPOLIS V. CHASE NATIONAL BANK, 314 U.S. 63.  BUT JURISDICTION IS
SAVED IN THIS CLASS OF CASES BY A SPECIAL DISPENSATION BECAUSE THE
CORPORATION IS IN ANTAGONISTIC HANDS.  DOCTOR V. HARRINGTON, 196 U.S.
579. 

PLAINTIFFS ALSO, AS IN THIS CASE, OFTEN HAVE ONLY A SMALL FINANCIAL
INTEREST IN A LARGE CONTROVERSY.  PLAINTIFFS, LIKE THIS ONE, IF THEIR
OWN FINANCIAL STAKE WERE THE TEST, SOMETIMES DO NOT HAVE A SUFFICIENT
INDIVIDUAL INTEREST TO MAKE UP THE REQUIRED JURISDICTIONAL AMOUNT. 
AGAIN THIS CLASS OF CASES IS FAVORED WITH THE FICTION THAT PLAINTIFFS'
POSSIBLE RECOVERY IS NOT THE MEASURE OF THE AMOUNT INVOLVED FOR
JURISDICTIONAL PURPOSES BUT THAT THE TEST IS THE DAMAGE ASSERTED TO
HAVE BEEN SUSTAINED BY THE DEFENDANT CORPORATION.  HENCE, ALTHOUGH A
PLAINTIFF'S OWN INTEREST MAY BE SMALL, IF THE CONDITIONS LAID DOWN BY
RULE 23 OF THE RULES OF CIVIL PROCEDURE FOR SECONDARY ACTIONS BY
SHAREHOLDERS ARE COMPLIED WITH AND JURISDICTION IS ESTABLISHED, THE
FEDERAL COURTS ARE EMPOWERED TO ENTERTAIN THE CASE.  BUT THE
PECULIARITIES OF SUCH ACTIONS SHOULD NOT BE OVERLOOKED. 

WHERE THERE ARE ONLY TWO PARTIES TO A DISPUTE, THERE IS GOOD REASON
WHY IT SHOULD BE TRIED IN THE PLAINTIFF'S HOME FORUM IF THAT HAS BEEN
HIS CHOICE.  HE SHOULD NOT BE DEPRIVED OF THE PRESUMED ADVANTAGES OF
HIS HOME JURISDICTION EXCEPT UPON A CLEAR SHOWING OF FACTS WHICH EITHER
(1) ESTABLISH SUCH OPPRESSIVENESS AND VEXATION TO A DEFENDANT AS TO BE
OUT OF ALL PROPORTION TO PLAINTIFF'S CONVENIENCE, WHICH MAY BE SHOWN TO
BE SLIGHT OR NONEXISTENT, OR (2) MAKE TRIAL IN THE CHOSEN FORUM
INAPPROPRIATE BECAUSE OF CONSIDERATIONS AFFECTING THE COURT'S OWN
ADMINISTRATIVE AND LEGAL PROBLEMS.  IN ANY BALANCING OF CONVENIENCES, A
REAL SHOWING OF CONVENIENCE BY A PLAINTIFF WHO HAS SUED IN HIS HOME
FORUM WILL NORMALLY OUTWEIGH THE INCONVENIENCE THE DEFENDANT MAY HAVE
SHOWN.  BUT WHERE THERE ARE HUNDREDS OF POTENTIAL PLAINTIFFS, ALL
EQUALLY ENTITLED VOLUNTARILY TO INVEST THEMSELVES WITH THE
CORPORATION'S CAUSE OF ACTION AND ALL OF WHOM COULD WITH EQUAL SHOW OF
RIGHT GO INTO THEIR MANY HOME COURTS, THE CLAIM OF ANY ONE PLAINTIFF
THAT A FORUM IS APPROPRIATE MERELY BECAUSE IT IS HIS HOME FORUM IS
CONSIDERABLY WEAKENED.  FN3  SUCH A PLAINTIFF OFTEN MAY REPRESENT AN
IMPORTANT PUBLIC AND STOCKHOLDER INTEREST IN BRINGING FAITHLESS
MANAGERS TO BOOK.  THE NATURE OF THE SECONDARY ACTION IS SUCH THAT
WITHOUT INVITATION FROM OTHER STOCKHOLDERS AND WITHOUT THEIR APPROVAL
OR SUPERVISION, THE PLAINTIFF VOLUNTEERS IN A POSITION THAT ITSELF
CREATES SOMETHING OF A FIDUCIARY RELATIONSHIP. 

WHILE, EVEN IN THE ORDINARY ACTION, THE RESIDENCE OF THE SUITOR WILL
NOT FIX THE PROPER FORUM WITHOUT REFERENCE TO OTHER CONSIDERATIONS, IT
IS A FACT OF "HIGH SIGNIFICANCE."  INTERNATIONAL MILLING CO. V.
COLUMBIA TRANSPORTATION CO., 292 U.S. 511, 520.  BUT, IN DERIVATIVE
ACTIONS, ALTHOUGH THE PLAINTIFF MAY HAVE A SUBSTANTIAL INTEREST OF HIS
OWN TO PROTECT, HE MAY ALSO BE A MERE PHANTOM PLAINTIFF WITH INTEREST
ENOUGH TO ENABLE HIM TO INSTITUTE THE ACTION AND LITTLE MORE.  HE MAY
HAVE TAKEN SOME ACTIVE PART IN THE CORPORATE AFFAIRS, OR HAVE PERSONAL
KNOWLEDGE OF THEM, OR HAVE HAD DEALINGS IN COURSE OF PROTEST AND
OBJECTION WHICH MAKE IT REQUISITE OR AT LEAST EXPEDIENT FOR HIM
PERSONALLY TO BE PRESENT AT THE TRIAL.  OR HE MAY, LIKE THIS PLAINTIFF,
MAKE NO SHOWING OF ANY KNOWLEDGE BY WHICH HIS PRESENCE WOULD HELP TO
MAKE WHATEVER CASE CAN BE MADE IN BEHALF OF THE CORPORATION. 

TO ENTERTAIN SUCH AN ACTION PLACES THE FORUM IN A POSITION OF
RESPONSIBILITY TOWARD THE WHOLE CLASS WHICH THE PLAINTIFF ASSUMES TO
REPRESENT.  TO PREVENT COLLUSIVE SETTLEMENTS AND ABUSES, THE COURT MUST
APPROVE DISMISSAL OR COMPROMISE AND OFTEN MUST GIVE NOTICE TO THE OTHER
POTENTIAL PLAINTIFFS, IN THIS CASE TO THE OTHER MEMBERS AND
POLICYHOLDERS IN WHOSE BEHALF PLAINTIFF SUES AND WHO HAVE A RIGHT TO BE
HEARD ON THE PROPRIETY OF SETTLEMENT.  RULE 23, RULES OF CIVIL
PROCEDURE.  IT ALSO TAKES ON THE TROUBLESOME BUSINESS OF FIXING
ALLOWANCES TO COUNSEL AND ACCOUNTANTS FOR THE PLAINTIFF PAYABLE OUT OF
THE DEFENDANT CORPORATION'S RECOVERY AGAINST OTHER DEFENDANTS.  FN4
THUS, SUCH A LITIGATION BRINGS TO THE COURT MORE THAN AN ORDINARY TASK
OF ADJUDICATION; IT BRINGS A TASK OF ADMINISTRATION; AND WHAT FORUM IS
APPROPRIATE FOR SUCH A TASK MAY REQUIRE CONSIDERATION OF ITS RELATION
TO THE WHOLE GROUP OF MEMBERS AND STOCKHOLDERS WHOM PLAINTIFF
VOLUNTEERS TO REPRESENT AS WELL AS TO THE NOMINAL PLAINTIFF HIMSELF. 

THE NATURE OF THE ACTION IMPORTS OTHER UNUSUAL CONSIDERATIONS WHEN
TRIAL COURTS ARE FACED WITH APPLICATIONS TO DISMISS FOR REASONS OF
FORUM NON CONVENIENS.  IT MIGHT WELL BE THAT THE BOOKS, RECORDS AND
WITNESSES TO ESTABLISH ALL OR A PART OF THE CAUSE OF ACTION ARE IN OR
NEAR THE CHOSEN FORUM.  BUT IN OTHER CASES THEY MAY ALL BE IN SOME
DISTANT JURISDICTION, PERHAPS THAT OF THE DEFENDANTS, AS IS THE CASE
HERE.  IN THE ORDINARY SUIT IT IS PLAINTIFF'S OWN BOOKS AND RECORDS AND
TRANSACTIONS THAT ARE IMPORTANT - IN THE DERIVATIVE ACTION IT IS MORE
LIKELY THAT ONLY THE CORPORATION'S BOOKS, RECORDS AND TRANSACTIONS WILL
BE IMPORTANT AND ONLY THE DEFENDANT WILL BE AFFECTED BY THE CHOICE OF
THE PLACE OF PRODUCTION OF RECORDS.  IN THE PRESENT CASE, IN RESPONSE
TO DEFENDANT'S MOTION AND SUPPORTING AFFIDAVITS, WHICH PRIMA FACIE
ESTABLISHED VEXATION TO DEFENDANT AND THE INAPPROPRIATENESS OF THE
COURT, THE PLAINTIFF SHOWS NOT A SINGLE FACT PROVABLE BY RECORD OR
WITNESS WITHIN THE DISTRICT OR STATE WHERE HE HAS BROUGHT SUIT.  IT IS
UNDENIED THAT EVERY SOURCE OF EVIDENCE TO PROVE PLAINTIFF'S OWN CASE,
AS WELL AS FOR DEFENDANT TO DISPROVE IT, IS IN ILLINOIS. 

THE DISTRICT COURT ALSO FOUND THAT "THE SUIT RELATES TO THE INTERNAL
AFFAIRS OF A FOREIGN CORPORATION" AND FOR THAT REASON ALSO CONSIDERED
THAT THE "COURTS OF THE STATE OF DOMICILE OF LUMBERMENS AND THE KEMPER
CORPORATION ARE THE APPROPRIATE TRIBUNALS FOR THE DETERMINATION OF THIS
CASE."  64 F.SUPP.  595, 599.  BUT MANY KINDS OF CASES MAY "RELATE TO
INTERNAL AFFAIRS OF A CORPORATION," AND THAT FACT DOES NOT HAVE THE
SAME SIGNIFICANCE AS TO THE DOCTRINE OF FORUM NON CONVENIENS IN ALL
SETTINGS. 

EVERY ISSUE OF ULTRA VIRES OR PROOF OF OFFICERS' AUTHORITY IN A
CONTRACT ACTION INVOLVES INQUIRY INTO INTERNAL AFFAIRS, BUT THAT
INQUIRY IS NOT ONE WHICH MUST BE RELEGATED TO HOME JURISDICTION.  THE
CONTRACTS OF A CORPORATION MAY MAKE ITS LIABILITIES TURN ON SUCH EVENTS
AS REALIZATION OF NET EARNINGS WHICH SUBMIT ITS INTERNAL AFFAIRS TO
SCRUTINY IN ORDER TO DETERMINE LIABILITY AND WHICH ANY COURT WITH
JURISDICTION MAY ADJUDICATE.  WILLIAMS V. GREEN BAY & WESTERN R.R., 326
U.S. 549.  ON THE OTHER HAND, PRIVATE ACTIONS MAY INVOLVE THE RIGHT OF
VISITATION OR SUPERVISION, A PUBLIC RIGHT EXISTING IN THE STATE FOR THE
PURPOSE OF EXAMINING INTO THE CONDUCT OF THE CORPORATION WITH A VIEW TO
KEEPING IT WITHIN ITS LEGAL POWERS, TO CORRECT ABUSES OF AUTHORITY AND
NULLIFY IRREGULAR PROCEEDINGS.  SEE GUTHRIE V. HARKNESS, 199 U.S. 148,
159.  SUCH CASES PRESENT A MORE PERSUASIVE CHALLENGE TO THE
JURISDICTION OF A COURT FOREIGN TO THE CORPORATION'S DOMICILE UNDER THE
FORUM NON CONVENIENS DOCTRINE.  WE ARE PRESENTED IN THIS CASE "WITH NO
PROBLEM OF ADMINISTRATION" OF THE AFFAIRS OF A FOREIGN CORPORATION OF
THE SORT WHICH WOULD LEAD A COURT TO DECLINE JURISDICTION.  SEE
DISSENTING OPINION OF STONE, J., IN ROGERS V. GUARANTY TRUST CO., 288
U.S. 123, 145. 

THERE IS NO RULE OF LAW, MOREOVER, WHICH REQUIRES DISMISSAL OF A
SUITOR FROM THE FORUM ON A MERE SHOWING THAT THE TRIAL WILL INVOLVE
ISSUES WHICH RELATE TO THE INTERNAL AFFAIRS OF A FOREIGN CORPORATION. 
THAT IS ONE, BUT ONLY ONE, FACTOR WHICH MAY SHOW CONVENIENCE OF PARTIES
OR WITNESSES, THE APPROPRIATENESS OF TRIAL IN A FORUM FAMILIAR WITH THE
LAW OF THE CORPORATION'S DOMICILE, AND THE ENFORCEABILITY OF THE REMEDY
IF ONE BE GRANTED.  BUT THE ULTIMATE INQUIRY IS WHERE TRIAL WILL BEST
SERVE THE CONVENIENCE OF THE PARTIES AND THE ENDS OF JUSTICE.  UNDER
MODERN CONDITIONS CORPORATIONS OFTEN OBTAIN THEIR CHARTERS FROM STATES
WHERE THEY NO MORE THAN MAINTAIN AN AGENT TO COMPLY WITH LOCAL
REQUIREMENTS, WHILE EVERY OTHER ACTIVITY IS CONDUCTED FAR FROM THE
CHARTERING STATE.  PLACE OF CORPORATE DOMICILE IN SUCH CIRCUMSTANCES
MIGHT BE ENTITLED TO LITTLE CONSIDERATION UNDER THE DOCTRINE OF FORUM
NON CONVENIENS, WHICH RESISTS FORMALIZATION AND LOOKS TO THE REALITIES
THAT MAKE FOR DOING JUSTICE. 

ROGERS V. GUARANTY TRUST CO., 288 U.S. 123, HOLDS ONLY THAT THE
DISTRICT COURT "...  WAS FREE IN THE EXERCISE OF A SOUND DISCRETION TO
DECLINE TO PASS UPON THE MERITS OF THE CONTROVERSY AND TO RELEGATE
PLAINTIFF TO AN APPROPRIATE FORUM....  OBVIOUSLY NO DEFINITE RULE OF
GENERAL APPLICATION CAN BE FORMULATED BY WHICH IT MAY BE DETERMINED
UNDER WHAT CIRCUMSTANCES A COURT WILL ASSUME JURISDICTION OF
STOCKHOLDERS' SUITS RELATING TO THE CONDUCT OF INTERNAL AFFAIRS OF
FOREIGN CORPORATIONS.  BUT IT SAFELY MAY BE SAID THAT JURISDICTION WILL
BE DECLINED WHENEVER CONSIDERATIONS OF CONVENIENCE, EFFICIENCY AND
JUSTICE POINT TO THE COURTS OF THE STATE OF THE DOMICILE AS APPROPRIATE
TRIBUNALS FOR THE DETERMINATION OF THE PARTICULAR CASE."  288 U.S. AT
130-31.  THERE WAS DISAGREEMENT IN THAT CASE AS TO WHETHER THE FACTS
WARRANTED EXERCISE OF THE DISCRETION BUT LITTLE AS TO THE GENERAL RULE
BY WHICH DISCRETION IS GOVERNED AND NONE AS TO EXISTENCE OF THE POWER
OF THE COURT. 

IN THE WILLIAMS CASE WE REVERSED AN EXERCISE OF DISCRETION BY A TRIAL
COURT, BUT FAR FROM LAYING DOWN A RIGID RULE TO GOVERN DISCRETION WE
SAID, "EACH CASE TURNS ON ITS FACTS."  326 U.S. AT 557.  THE FACTS IN
THAT CASE WERE QUITE DIFFERENT FROM THOSE BEFORE US NOW.  THE ACTION
WAS A CLASS SUIT BROUGHT TO RECOVER AMOUNTS ALLEGED TO BE DUE TO
PLAINTIFFS ON DEBENTURES.  THERE WAS A POSSIBILITY THAT UNDER ONE VIEW
AS TO CONSTRUCTION OF THE DEBENTURES, THE COURT WOULD HAVE TO REVIEW
THE CORPORATE INTERNAL AFFAIRS TO DETERMINE NET EARNINGS WHICH WERE OR
SHOULD BE AVAILABLE AS DIVIDENDS, AND UNDER ANOTHER VIEW, TO DECIDE
WHETHER UNDER THE APPLICABLE LOCAL LAW DIRECTORS' DISCRETION HAD BEEN
ABUSED.  IN THAT CASE, AS HERE, THE PLAINTIFFS RESIDED IN NEW YORK. 
BUT THE OPINION POINTS OUT THAT THE DEFENDANT, WHILE LEGALLY DOMICILED
ELSEWHERE, MAINTAINED ITS FINANCIAL OFFICE IN NEW YORK; FIVE OF ITS SIX
DIRECTORS, ALL OF ITS EXECUTIVE AND FISCAL OFFICERS EXCEPT THE
PRESIDENT AND GENERAL AUDITOR, WERE FOUND THERE; DIRECTORS MEETINGS
WERE CUSTOMARILY HELD IN NEW YORK; FINANCIAL RECORDS, TRANSFER BOOKS,
MINUTE BOOKS AND THE LIKE WERE KEPT IN NEW YORK.  RECITING THESE FACTS,
AMONG OTHERS, WE CONCLUDED "THESE FACTS PLAINLY INDICATE TO US THAT IT
WOULD NOT BE VEXATIOUS OR OPPRESSIVE TO ENTERTAIN THIS SUIT IN NEW
YORK, WHETHER THE AVAILABILITY OF WITNESSES OR ANY OTHER ASPECT OF A
TRIAL BE CONSIDERED."  326 U.S. AT 560.  ACCORDINGLY, WE HELD THAT THE
CASE SHOULD NOT HAVE BEEN DISMISSED. 

SINCE THIS CASE IS PENDING IN NEW YORK AND IS A DIVERSITY CASE, IT IS
APPROPRIATE TO OBSERVE THAT THE LAW OF NEW YORK, IF APPLICABLE, IS TO
THE SAME EFFECT AS TO THE CONSIDERATIONS TO GOVERN FORUM NON CONVENIENS
QUESTIONS IN THIS CLASS OF CASES.  THE CASES ON WHICH PETITIONER RELIES
TO ESTABLISH HIS CONTENTION THAT IN A SIMILAR SUIT THE COURTS OF NEW
YORK WOULD NOT DECLINE JURISDICTION, SEEM TO BE ONES IN WHICH THE
CORPORATE DEFENDANT HAD ITS PRINCIPAL PLACE OF BUSINESS IN NEW YORK OR
A SUBSTANTIAL AMOUNT OF PROPERTY THERE, WHICH WOULD ASSURE THE
EFFECTIVENESS OF A JUDGMENT.  MILLER V. QUINCY, 179 N.Y. 294, 72 N.E.
116; RAMSEY V. ROSENTHAL, 242 APP. DIV. 526, 275 N.Y.S. 783; HAMM V.
CHRISTIAN HERALD CORP., 236 APP. DIV. 639, 260 N.Y.S. 743; TARLOW V.
ARCHBELL, 47 N.Y.S.2D 3, 7-8, AFF'D, 269 APP. DIV. 837, 56 N.Y.S.2D
363.  FN5  THOSE CASES, HOWEVER, DO NOT CONSIDER WHETHER THE ACTIONS
BROUGHT ARE VEXATIOUS OR OPPRESSIVE OR WHETHER THE INTERESTS OF JUSTICE
REQUIRE THAT THE TRIAL BE HAD IN A MORE APPROPRIATE FORUM.  THEIR
PRINCIPAL ATTENTION IS GIVEN TO THE INQUIRY WHETHER THE SUIT CONCERNS
THE INTERNAL AFFAIRS OF THE FOREIGN CORPORATION, AND THEIR UNIFORM
CONCLUSION IS THAT THEY DO NOT.  BUT IN TAKING THAT VIEW OF ONE OF THE
FACTORS TO BE CONSIDERED IN APPLYING THE DOCTRINE OF FORUM NON
CONVENIENS, THEY SAY NOTHING TO DETRACT FROM THE GENERAL RULE OF NEW
YORK AS STATED BY CARDOZO, J., IN TRAVIS V. KNOX TERPEZONE CO., 215
N.Y. 259, 264, 109 N.E. 250, 251:  "TO TRACE IN ADVANCE THE PRECISE
LINE OF DEMARCATION BETWEEN THE CONTROVERSIES AFFECTING A FOREIGN
CORPORATION IN WHICH JURISDICTION WILL BE ASSUMED AND THOSE IN WHICH
JURISDICTION WILL BE DECLINED, WOULD BE A DIFFICULT AND HAZARDOUS
VENTURE.  A LITIGANT IS NOT, HOWEVER, TO BE EXCLUDED BECAUSE HE IS A
STOCKHOLDER, UNLESS CONSIDERATIONS OF CONVENIENCE OR OF EFFICIENCY OR
OF JUSTICE POINT TO THE COURTS OF THE DOMICILE OF THE CORPORATION AS
THE APPROPRIATE TRIBUNALS."  AND IN LANGFELDER V. UNIVERSAL
LABORATORIES, 293 N.Y. 200, 204, 56 N.E.2D 550, 552, THE COURT SAID:
"BUT IT IS WELL SETTLED THAT JURISDICTION IN ANY CASE WILL BE DECLINED
EITHER IN THE ABSENCE OF JURISDICTION IN THE STRICT SENSE OR WHERE A
DETERMINATION OF THE RIGHTS OF LITIGANTS INVOLVES REGULATION AND
MANAGEMENT OF THE INTERNAL AFFAIRS OF THE CORPORATION DEPENDENT UPON
THE LAWS OF THE FOREIGN STATE OR WHERE THE COURT IN WHICH JURISDICTION
IS SOUGHT IS UNABLE TO ENFORCE A DECREE IF MADE OR WHERE THE RELIEF
SOUGHT MAY BE MORE APPROPRIATELY ADJUDICATED IN THE COURTS OF THE STATE
OR COUNTRY TO WHICH THE CORPORATION OWES ITS EXISTENCE." 

CONFRONTED WITH DEFENDANT'S MOTION AND SUPPORTING AFFIDAVITS IN THIS
CASE RECITING THE FACTS EARLIER SET FORTH HEREIN, THE PLAINTIFF WAS
UTTERLY SILENT AS TO ANY REASON OF CONVENIENCE TO HIMSELF OR TO
WITNESSES AND AS TO ANY ADVANTAGE TO HIM IN EXPENSE, SPEED OF TRIAL, OR
ADEQUACY OF REMEDY IF THE CASE WERE TRIED IN NEW YORK.  HE RECITED ONLY
THAT LUMBERMENS AND THE KEMPER COMPANY HAD BEEN SERVED WITH PROCESS,
AND THAT KEMPER INDIVIDUALLY HAD NOT, BUT THAT PLAINTIFF PROPOSED TO
SERVE HIM ON HIS "NEXT VISIT TO NEW YORK."  FOR THE REST, HE RELIED ON
A MEMORANDUM OF LAW.  THAT THE ABSENCE FROM THE CASE OF KEMPER MAKES
REMEDY IN NEW YORK INADEQUATE, IF NOT IMPOSSIBLE, AS TO SOME COUNTS IS
ADMITTED.  TO THAT EXTENT, IT MAKES IT INAPPROPRIATE FOR A COURT IN NEW
YORK TO ADJUDICATE SOME CLOSELY RELATED ISSUES, DECIDING PLAINTIFF'S
GRIEVANCES PIECEMEAL.  PETITIONER SHOWS NOT A SINGLE WITNESS OR SOURCE
OF EVIDENCE AVAILABLE TO HIM IN NEW YORK AND DOES NOT DENY THAT HIS
COMPLAINT WILL REQUIRE EXHAUSTIVE EXAMINATION OF THE TRANSACTIONS OF
THESE ILLINOIS CORPORATIONS, ALL OF WHICH OCCURRED IN ILLINOIS AND ARE
TO BE TESTED BY ITS LAW.  THE PLAINTIFF DEMANDED TRIAL IN NEW YORK AS
MATTER OF RIGHT AND OF LAW IRRESPECTIVE OF THE FACTS SET OUT BY
DEFENDANT.  THIS COURT CANNOT SAY THAT THE DISTRICT COURT ABUSED ITS
DISCRETION IN GIVING WEIGHT TO THE UNDENIED SWORN STATEMENTS OF FACT IN
DEFENDANT'S MOTION PAPERS, ESPECIALLY IN VIEW OF THE FAILURE OF
PLAINTIFF'S ANSWERING AFFIDAVIT TO ADVANCE ANY REASON OF CONVENIENCE TO
THE PLAINTIFF.  WE HOLD ONLY THAT A DISTRICT COURT, IN A DERIVATIVE
ACTION, MAY REFUSE TO EXERCISE ITS JURISDICTION WHEN A DEFENDANT SHOWS
MUCH HARASSMENT AND PLAINTIFF'S RESPONSE NOT ONLY DISCLOSES SO LITTLE
COUNTERVAILING BENEFIT TO HIMSELF IN THE CHOICE OF FORUM AS IT DOES
HERE, BUT INDICATES SUCH DISADVANTAGE AS TO SUPPORT THE INFERENCE THAT
THE FORUM HE CHOSE WOULD NOT ORDINARILY BE THOUGHT A SUITABLE ONE TO
DECIDE THE CONTROVERSY.  AFFIRMED. 

FN1 SOME OF OUR CASES APPEAR TO HOLD BROADLY THAT THE FEDERAL COURTS
MUST EXERCISE THEIR JURISDICTION, WHEN THEY HAVE IT.  HYDE V. STONE, 20
HOW.  170, 175; SUYDAM V. BROADNAX, 14 PET. 67; UNION BANK V. JOLLY'S
ADM'RS, 18 HOW.  503.  BUT THIS IS NOT A CASE IN WHICH IT IS URGED THAT
A STATE STATUTE RESTRICTING REMEDY TO STATE PROCEEDINGS DEFEATS FEDERAL
DIVERSITY JURISDICTION, AS THEY WERE, AND AS WAS CHICOT COUNTY V.
SHERWOOD, 148 U.S. 529.  IN THOSE CASES, THE COURT HELD THAT WHEN A
STATE RECOGNIZES A CAUSE OF ACTION, SUIT MAY BE BROUGHT ON IT IN
FEDERAL COURT IF DIVERSITY JURISDICTION IS ESTABLISHED.  THAT HOLDING
HAS NOTHING TO DO WITH THIS CASE.  WE ARE CONCERNED HERE WITH THE
AUTONOMOUS ADMINISTRATION OF THE FEDERAL COURTS IN THE DISCHARGE OF
THEIR OWN JUDICIAL DUTIES, SUBJECT OF COURSE TO THE CONTROL OF
CONGRESS. 

FN2  28 U.S.C. SEC. 112 PROVIDES "THAT SUIT BY A STOCKHOLDER ON
BEHALF OF A CORPORATION MAY BE BROUGHT IN ANY DISTRICT IN WHICH SUIT
AGAINST THE DEFENDANT OR DEFENDANTS IN SAID STOCKHOLDERS' ACTION, OTHER
THAN SAID CORPORATION, MIGHT HAVE BEEN BROUGHT BY SUCH CORPORATION AND
PROCESS IN SUCH CASES MAY BE SERVED UPON SUCH CORPORATION IN ANY
DISTRICT WHEREIN SUCH CORPORATION RESIDES OR MAY BE FOUND."  49 STAT.
1214.  THIS REINFORCES THE VIEW THAT THE CAUSE OF ACTION IS THAT OF THE
CORPORATION, IF REINFORCEMENT IS NECESSARY.  MOREOVER, IT IS OBVIOUS
THAT THE VENUE STATUTE IS NOT CONCERNED WITH FACILITATING SUIT IN THE
DISTRICT OF THE STOCKHOLDER'S RESIDENCE, BUT ASSURES ONLY THAT SUIT CAN
BE BROUGHT IN ANY DISTRICT IN WHICH THE CORPORATION COULD HAVE SUED. 
GREENBERG V. GIANNINI, 140 F.2D 550.  WHEN SUIT IS BROUGHT IN THE
DISTRICT OF THE STOCKHOLDER'S RESIDENCE, THE VENUE STATUTE DOES NOT
PROVIDE FOR SERVICE ON THE CORPORATION "IN ANY DISTRICT WHEREIN SUCH
CORPORATION RESIDES OR MAY BE FOUND."  SINCE THE CORPORATION IS AN
INDISPENSABLE PARTY, DAVENPORT V. DOWS, 18 WALL.  626, IT MUST BE ONLY
THE CHANCE STOCKHOLDER'S SUIT WHICH CAN BE MAINTAINED AT THE
STOCKHOLDER'S RESIDENCE.  CORPORATIONS WHICH HAVE STOCKHOLDERS IN MANY
OF THE STATES MAY NOT FIND IT NECESSARY TO QUALIFY TO DO BUSINESS AND
CONSENT TO BE SUED IN ALL THE STATES IN WHICH THEY HAVE STOCKHOLDERS. 

FN3  BEFORE THE DECISION OF THE CIRCUIT COURT IN THIS CASE, A SIMILAR
DERIVATIVE ACTION WAS BEGUN AGAINST SUBSTANTIALLY THE SAME DEFENDANTS
AND ON THE SAME CAUSES OF ACTION IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION.  SCHWARTZ V.
KEMPER, 69 F.SUPP.  152.  IT ASSURES THAT THIS CONTROVERSY WILL NOT BE
BARRED FROM JUDICIAL HEARING FOR LACK OF PROSECUTION WITHIN THE
STATUTORY PERIOD.  ALL BUT TWO OF THE DEFENDANTS IN THAT ACTION HAVE
ENTERED A GENERAL APPEARANCE, AND PETITIONER'S LAWYERS ARE ASSOCIATED
WITH PLAINTIFF'S COUNSEL IN THAT CASE. 

FN4  TRUSTEES V. GREENOUGH, 105 U.S. 527; SEE FEDERAL CASES CITED
THROUGHOUT HORNSTEIN, THE COUNSEL FEE IN STOCKHOLDER'S DERIVATIVE
SUITS, 39 COL. L. REV. 784.  FEES ALLOWED, MOREOVER, VARY GREATLY WITH
LOCAL CONSIDERATIONS AS TO PROFESSIONAL SCALES AND OTHER DETERMINANTS
OF EXPENSE. 

FN5  OF THE OTHER CASES CITED BY PETITIONER, GOLDSTEIN V. LIGHTNER,
266 APP. DIV. 357, 42 N.Y.S.2D 338, AFF'D, 292 N.Y. 670, 56 N.E.2D 98,
GAVE NO EXPRESSED CONSIDERATION TO THE PROBLEM OF FORUM NON CONVENIENS,
AND IN JACOBS V. MEXICAN SUGAR REFINING CO., 104 APP. DIV. 242, 93
N.Y.S. 776, THE ONLY QUESTION RAISED AND DECIDED WAS THE JURISDICTION
OF THE COURT OVER THE SUBJECT-MATTER OF THE SUIT.  CF. ERNST V.
RUTHERFORD & B.S.G. CO., 38 APP. DIV. 388, 56 N.Y.S. 403.  IN
HALLENBORG V. GREENE, 66 APP. DIV. 590, 73 N.Y.S. 403, THE APPELLATE
DIVISION REVERSED IN PART A BROAD DECREE OF THE SUPREME COURT SO AS TO
RESTRICT THE EXERCISE OF THE COURT'S POWER TO CONFORM TO ITS STATEMENT
OF THE FORUM NON CONVENIENS DOCTRINE:  "WHEN A JUDGMENT AGAINST A
FOREIGN CORPORATION WOULD NOT BE EFFECTUAL WITHOUT THE AID OF THE
COURTS OF A FOREIGN COUNTRY OR OF A SISTER STATE, AND IT MAY CONTRAVENE
THE PUBLIC POLICY OF THE FOREIGN JURISDICTION OR REST UPON THE
CONSTRUCTION OF A FOREIGN STATUTE, THE INTERPRETATION OF WHICH IS NOT
FREE FROM DOUBT - AS WHERE THE SUBJECT-MATTER OF THE LITIGATION AND THE
JUDGMENT WOULD RELATE STRICTLY TO THE INTERNAL AFFAIRS AND MANAGEMENT
OF THE FOREIGN CORPORATION - THE COURT SHOULD DECLINE JURISDICTION
BECAUSE SUCH QUESTIONS ARE OF LOCAL ADMINISTRATION, AND SHOULD BE
RELEGATED TO THE COURTS OF THE STATE OR COUNTRY UNDER THE LAWS OF WHICH
THE CORPORATION WAS ORGANIZED."  66 APP. DIV. AT 597, 73 N.Y.S. AT
408. 

MR. JUSTICE BLACK, DISSENTING. 

I AGREE SUBSTANTIALLY WITH THE DISSENT OF MR. JUSTICE REED, BUT WISH
TO ADD THIS THOUGHT.  TODAY'S DECISION GOES FAR BEYOND THE DUBIOUS
DOCTRINE ANNOUNCED IN ROGERS V. GUARANTY TRUST CO., 288 U.S. 123. 
THERE MAY BE RARE INSTANCES IN WHICH A FEDERAL COURT COULD DECLINE TO
PROVIDE AN EQUITABLE REMEDY AGAINST MULTI-STATE CORPORATE DEFENDANTS. 
A PRAYER FOR RELIEF WHICH REQUIRES THE APPOINTMENT OF A RECEIVER OR THE
DETAILED AND CONTINUING SUPERVISION OF THE AFFAIRS OF A DEFENDANT
CORPORATION WHOSE HEADQUARTERS IS BEYOND THE JURISDICTION OF THE COURT
WOULD IN MY VIEW CONSTITUTE SUCH A SITUATION.  CF. PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176.    THE WHOLE TREND OF RECENT CONGRESSIONAL
LEGISLATION HAS BEEN TO PROTECT CORPORATE STOCK AND SECURITY HOLDERS. 
SEE E.G. SECURITIES ACT OF 1933, 48 STAT. 74, 15 U.S.C. SEC. 77A ET
SEQ. BUT THIS LEGISLATION WAS NOT INTENDED AS A COMPLETE SUBSTITUTE FOR
THE ANTIDOTE PROVIDED BY STOCKHOLDERS' SUITS FOR THE DANGERS INHERENT
IN THE MODERN DEVELOPMENT OF FREQUENT CONFLICTS OF INTEREST BETWEEN
CORPORATE OWNERS AND CORPORATE MANAGERS.  SEE LASSWELL, DEAN AND
PODELL, A NON-BUREAUCRATIC ALTERNATIVE TO MINORITY STOCKHOLDERS' SUITS,
43 COL. L. REV. 1036, 1045, 1047; KOESSLER, THE STOCKHOLDER'S SUIT:  A
COMPARATIVE VIEW, 46 COL. L. REV. 238, 241.  YET THE COURT'S OPINION
SETS UP ALMOST INSUPERABLE OBSTACLES TO MANY STOCKHOLDERS WHO WOULD
BRING SUCH SUITS.  A CALIFORNIA OR FLORIDA STOCKHOLDER CANNOT EASILY GO
TO DELAWARE, NEW JERSEY, OR NEW YORK TO PRESS HIS CLAIMS.  AND THERE IS
NO GOOD REASON, IN MOST ACTIONS BROUGHT TO CURB CORPORATE
MISMANAGEMENT, WHY A STOCKHOLDER SHOULD NOT BRING SUCH A SUIT IN THE
STATE WHERE HE LIVES, BOUGHT HIS STOCK, AND WHERE THE CORPORATION HAS
AGENTS AND DOES BUSINESS.  TO PUT HIM TO THE INCONVENIENCE AND
DISADVANTAGE OF GOING ACROSS THE CONTINENT TO THE STATE OF THE MANAGERS
TO LITIGATE HIS CAUSE, ALL BUT NULLIFIES HIS OPPORTUNITY AND
INCLINATION TO SUE TO PROTECT HIS INTEREST AND THAT OF OTHER OWNERS. 

MR. JUSTICE RUTLEDGE JOINS IN THIS OPINION. 

MR. JUSTICE REED, DISSENTING. 

FOR THE PURPOSES OF THIS CASE WE MAY ASSUME, WITHOUT EXAMINING NEW
YORK LAW, 153 F.2D 888, 890, THAT A FEDERAL DISTRICT COURT, IN ITS
DISCRETION, CAN DISMISS A CAUSE ON THE GROUND THAT THE FORUM IS
VEXATIOUSLY INCONVENIENT TO THE DEFENDANT.  STILL WE THINK THE EXERCISE
OF SUCH A POWER IS NOT WARRANTED IN THE CIRCUMSTANCES OF THIS CASE. 

WE NEED NOT RESTATE THE FACTS, WHICH ARE AMPLY SET OUT BY THE
MAJORITY.  THE SOLE INQUIRY IS WHETHER THE EXERCISE OF DISCRETION BY
THE TRIAL JUDGE IN THIS CASE WAS AN ABUSE OF HIS POWER.  ON MOTION OF
LUMBERMENS, JOINED IN BY NO OTHER DEFENDANT, FOR DISMISSAL OF THE
COMPLAINT ON THE GROUNDS THAT THE ACTION WOULD REQUIRE INTERFERENCE BY
THE COURT WITH THE INTERNAL MANAGEMENT OF LUMBERMENS AND THAT, FURTHER,
AN INDISPENSABLE PARTY HAD NOT BEEN SERVED, THE TRIAL COURT DISMISSED
THE COMPLAINT BECAUSE IT REQUIRED INTERFERENCE WITH THE INTERNAL
AFFAIRS OF A FOREIGN CORPORATION AND BECAUSE THE FORUM WAS NOT
CONVENIENT.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE ORDER OF
DISMISSAL ON THE GROUND THAT THE FORUM IN WHICH THE ACTION WAS BROUGHT
WAS NOT CONVENIENT FOR THE TRIAL OF THE CAUSES OF ACTION ASSERTED BY
THE COMPLAINT. 

BY A VENUE STATUTE, CONGRESS HAS PROVIDED THAT AN ACTION MAY BE
BROUGHT IN THE DISTRICT WHERE THE PLAINTIFF RESIDES AGAINST DEFENDANTS
RESIDING IN OTHER STATES THAN THAT OF THE FORUM.  THIS PLAINTIFF STARTS
WITH A PRESUMPTION IN HIS FAVOR THAT HE MAY MAINTAIN THIS ACTION AT HIS
OWN RESIDENCE.  28 U.S.C. SEC. 112. 

WE NEED NOT TARRY TO CONSIDER THE SMALL INTEREST OF THE PLAINTIFF IN
THE ASSETS OF HIS CORPORATION, NOR THE EFFECT OF REALIGNING THE
CORPORATION ON THE SIDE OF THE CAUSE WHERE ITS TRUE INTEREST LIES. 
HOWEVER INTERESTING THE IMPLICATIONS OF THESE FACTS, THEY HAVE NOTHING
TO DO WITH A DISMISSAL ON THE GROUND OF THE INCONVENIENCE OF THE
FORUM.  THE SAME FACTS WOULD EXIST NO MATTER WHAT THE FORUM, AND THEY
ARE ACCORDINGLY NOT PERTINENT TO OUR INQUIRY.  NOR SHOULD WE CONCERN
OURSELVES WITH THE POSSIBILITY THAT THIS MAY BE A STRIKE SUIT. 
WHATEVER THE MOTIVES OF THE PLAINTIFF, THE ONLY INQUIRY NOW HERE IS
WHETHER THE FORUM IS INCONVENIENT OR NOT. 

IN SOME CASES, WHICH MAY AT THE EXPENSE OF ANALYSIS BE GROUPED UNDER
THE DOCTRINE OF FORUM NON CONVENIENS, THE CONVENIENCE OF THE COURT MAY
BE IMPORTANT.  IN SUCH CASES THE CROWDED CONDITION OF THE COURT'S
CALENDAR AND ITS LACK OF FAMILIARITY WITH THE LAW OF ANOTHER STATE MAY
BE WEIGHTY FACTORS.  BUT IN THOSE CASES NEITHER THE DEFENDANT NOR THE
PLAINTIFF IS A RESIDENT OF THE FORUM STATE.  WESTERN UNION TELEGRAPH
CO. V. RUSSELL, 12 TEX. CIV. APP. 82, 83 S.W. 708; ROBINSON V. OCEANIC
STEAM NAV. CO., 112 N.Y. 315, 19 N.E. 625; BURDICK V. FREEMAN, 120 N.Y.
420, 24 N.E. 949; MORRIS V. MISSOURI PACIFIC R. CO., 78 TEX. 17, 14
S.W. 228; SEE CASES COLLECTED IN 32 A.L.R. AT P. 34.  CF. SMITH V.
EMPIRE STATE-IDAHO CO., 127 F. 462.  SEE ALSO DAVIS V. FARMERS CO
OPERATIVE CO., 262 U.S. 312, 317.  SUCH CASES HAVE THE SUPPORT OF
POLICY WHICH HESITATES TO GIVE AN ADVANTAGE TO PARTIES WHO DO NOT BEAR
THE EXPENSE OF SUPPORTING THE COURTS OF THE FORUM.  DOUGLAS V. NEW
YORK, N.H. & H.R. CO., 279 U.S. 377, 387.  BUT WHERE THE CAUSE IS
TRANSITORY AND THE PLAINTIFF A RESIDENT OF THE FORUM STATE, THE
CONVENIENCE TO THE COURT WOULD SEEM TO BE OUTWEIGHED BY ITS DUTY TO
ENTERTAIN ACTIONS BROUGHT BY CITIZENS OF THE STATE OF WHICH THE COURT
IS AN ARM.  SEE ARIZONA COMMERCIAL MINING CO. V. IRON CAP COPPER CO.,
119 ME. 213, 110 A. 429.  CF. MEXICAN NAT. R. CO. V. JACKSON, 89 TEX.
107, 33 S.W. 857; SLATER V. MEXICAN NAT. R. CO., 194 U.S. 120.  THIS
WOULD SEEM PARTICULARLY TRUE OF FEDERAL COURTS WHOSE DUTY IT IS TO
ENTERTAIN SUITS BETWEEN CITIZENS OF DIFFERENT STATES.  WILLIAMS V.
GREEN BAY & W.R. CO., 326 U.S. 549, 553-4. 

SINCE THE PLAINTIFF IN THIS ACTION IS A RESIDENT OF THE FORUM STATE,
WE ARE ONLY CONCERNED WITH THE RELATIVE CONVENIENCE OF THE PARTIES.  IT
IS CLEAR THAT ORDINARILY A PLAINTIFF MAY BRING HIS SUIT IN A FORUM OF
HIS CHOOSING REGARDLESS OF THE INCONVENIENCE TO HIM OF MAKING PROOF, SO
LONG AS VENUE IS PROPERLY LAID.  BUT HERE, AS THE COURT POINTS OUT,
SHOULD THE INCONVENIENCE TO THE DEFENDANT FAR OUTWEIGH ANY CONVENIENCE
TO THE PLAINTIFF, IT WOULD NOT BE FAIR TO OPPRESS THE DEFENDANT, FOR IT
IS NOT A LEGITIMATE ADVANTAGE TO A PLAINTIFF TO VEX HIS OPPONENT.  WE
CANNOT AGREE, HOWEVER, THAT IN ASSESSING THE RELATIVE CONVENIENCE OF
THE PARTIES THE COURT MAY PUT A BURDEN UPON THE PLAINTIFF TO MAKE A
POSITIVE SHOWING THAT IT IS TO HIS LEGITIMATE ADVANTAGE TO BRING SUIT
IN THE FORUM OF HIS CHOOSING.  IT IS THE DEFENDANT'S BURDEN TO CONVINCE
THE COURT THAT THE FORUM IS BOTH INCONVENIENT TO IT AND NOT CONVENIENT
TO THE PLAINTIFF.  DESPITE THE NECESSITY OF GOING ELSEWHERE FOR
EVIDENCE, IT IS HARDLY CAPRICIOUS FOR A PLAINTIFF TO BRING SUIT IN HIS
HOME STATE:  THE ADVANTAGES OF SO DOING ARE USUALLY NO LESS REAL THAN
APPARENT. 

ACCORDINGLY WE MUST JUDGE THIS CASE FROM THE SHOWING MADE BY THE
DEFENDANT AS TO THE RELATIVE CONVENIENCE OF THE PARTIES IN ITS
AFFIDAVITS IN SUPPORT OF ITS MOTION TO DISMISS.  THE DEFENDANT'S
AFFIANTS URGED THAT THE SUIT BE DISMISSED BECAUSE ALL THE PROOF WOULD
COME FROM "VAST QUANTITIES OF DOCUMENTS" AND WITNESSES LOCATED IN
ILLINOIS, WHERE THE MAIN OFFICES OF LUMBERMENS ARE SITUATED, AND THAT
TRANSPORTING THESE DOCUMENTS WOULD PUT THE DEFENDANT TO GREAT EXPENSE. 
THEY ALSO URGED THAT THE PLAINTIFF HAD NEVER ATTENDED ANY MEETINGS OF
THE CORPORATION, NOR EVER PROTESTED TO THE DEPARTMENT OF INSURANCE OF
ILLINOIS WHICH AUDITED THE BOOKS OF LUMBERMENS, AND THAT HE WAS IN A
POSITION WHERE "THE ONLY PROOF PERSONALLY TO COME FROM HIM IS THE
ESTABLISHMENT OF HIS STATUS AS A POLICYHOLDER."  THEY ALSO URGED THAT
THE COURT WAS BEING ASKED TO PASS UPON THE INTERNAL MANAGEMENT AND
AFFAIRS OF LUMBERMENS. 

AS TO THE LAST ARGUMENT:  IT IS RECOGNIZED OF COURSE THAT A FEDERAL
COURT NEED NOT ENTERTAIN A CASE WHICH INVOLVES INTERFERENCE WITH THE
INTERNAL AFFAIRS OF A CORPORATION.  ROGERS V. GUARANTY TRUST CO., 288
U.S. 123; BUT SEE WILLIAMS V. GREEN BAY & W.R. CO., 326 U.S. 549.  THE
CIRCUIT COURT WAS OF THE OPINION THAT NO INTERFERENCE WITH THE INTERNAL
AFFAIRS OF A FOREIGN CORPORATION OF A KIND "TO MAKE THE COURTS OF
ILLINOIS A MORE APPROPRIATE FORUM THAN NEW YORK" WOULD BE REQUIRED BY
THIS ACTION.  THIS COURT SPECIFICALLY CONCEDES THERE IS NO PROBLEM OF
CORPORATE ADMINISTRATION THAT LEADS TO REFUSAL OF JURISDICTION IN THIS
CASE.  THIS COURT, HOWEVER, DEPENDS UPON THE RELATION OF THE ISSUES TO
THE INTERNAL AFFAIRS OF A CORPORATION AS ONE FACTOR IN THE EXERCISE OF
THE COURT'S DISCRETION TO DISMISS ON THE GROUND OF FORUM NON
CONVENIENS.  IF CORPORATE ADMINISTRATION IS NOT INVOLVED, THE MERE FACT
THAT THE ISSUES RELATE TO THE INTERNAL AFFAIRS OF THE CORPORATION DOES
NOT SEEM SIGNIFICANT.  ALMOST ANY SUIT AGAINST A CORPORATION MAY
INVOLVE AN EXAMINATION INTO CORPORATE AFFAIRS.  HERE THE ONLY INQUIRY,
OTHER THAN THE ALLEGED MISCONDUCT OF THE DEFENDANT KEMPER, HAS TO DO
WITH THE RELATIONSHIP BETWEEN KEMPER & CO. AND LUMBERMENS.  ALTHOUGH
THIS INEVITABLY INVOLVES INQUIRY INTO INTERNAL AFFAIRS OF A
CORPORATION, AS DOES ANY SUIT BROUGHT AGAINST A CORPORATE FIDUCIARY FOR
BREACH OF TRUST, THAT INQUIRY IS HARDLY AN INTERFERENCE WITH CORPORATE
ADMINISTRATION. 

WHEN THERE IS NO SHOWING OF INTERFERENCE WITH CORPORATE
ADMINISTRATION, THE PARTY SEEKING DISMISSAL IS FORCED TO DEPEND UPON
WHAT "WILL BEST SERVE THE CONVENIENCE OF THE PARTIES AND THE ENDS OF
JUSTICE."  THIS, WE THINK, REQUIRES STRONG AND CLEAR PROOF TO OVERCOME
THE PRESUMPTION THAT THE PLACE OF TRIAL IS CONTROLLED BY THE VENUE
STATUTE.  MERE INCONVENIENCE IS NOT ENOUGH. 

AS FOR THE EXPENSE TO THE DEFENDANT OF BRINGING DOCUMENTS AND
WITNESSES TO NEW YORK, EVEN ADMITTING THAT PROOF IN THIS ACTION WILL
INVOLVE DOCUMENTARY EVIDENCE SITUATED IN ILLINOIS OR TESTIMONY OF
WITNESSES LOCATED IN ILLINOIS, IT IS NOT AMISS TO POINT OUT THAT THE
PLAINTIFF MUST CARRY THE BURDEN IN THIS ACTION AND MUST MAKE HIS CASE
BEFORE DEFENSE IS NECESSARY.  SINCE BOTH DOCUMENTS AND WITNESSES ARE
BEYOND THE JURISDICTION OF THE CHOSEN FORUM, IT WILL BE THE PLAINTIFF'S
EXPENSE INITIALLY TO TRANSPORT SUCH RECORDS AND WITNESSES, AN
INCONVENIENCE WHICH HE HAS DETERMINED TO BEAR, IF IT IS TRUE THAT HE
HAS NO OTHER SOURCE OF PROOF.  BUT EVEN SUPPOSING THAT THE DEFENDANT
WILL HAVE TO TRANSPORT DOCUMENTS AND WITNESSES TO MEET THE PLAINTIFF'S
PROOF, A BARE ALLEGATION TO THAT EFFECT IS HARDLY A SHOWING OF SUCH
HARDSHIP AS TO MAKE IT PROPER TO DISMISS THIS CASE ON THE GROUNDS OF
FORUM NON CONVENIENS.  THE SAME ALLEGATION MIGHT BE MADE IN ANY ACTION
BROUGHT AGAINST THE DEFENDANT IN ANY STATE OTHER THAN ILLINOIS ON ANY
CAUSE, CONTRACT OR TORT, WHICH INVOLVES RECORDS OF THE COMPANY, AND
THIS EVEN THOUGH THE CORPORATION HAS CHOSEN TO DO BUSINESS IN FORTY
EIGHT STATES.  TO DISMISS A CAUSE ON SUCH BARE ALLEGATIONS WITHOUT A
PARTICULAR SHOWING OF THE HARDSHIP INVOLVED IN TRANSPORTING A MASS OF
DOCUMENTS AND WITNESSES NOT EASILY ACCESSIBLE TO THE FORUM PUTS A
POWERFUL WEAPON INTO THE HANDS OF CORPORATIONS ALLEGED TO HAVE
IMPROPERLY CONDUCTED THEIR AFFAIRS.  IT HAS BEEN THE WHOLE COURSE OF
OUR LAW TO BREAK DOWN BARRIERS AGAINST CALLING CORPORATIONS TO ACCOUNT
IN ALL STATES WHERE THEY MAY DO WRONG IN DOING BUSINESS.  NEIRBO CO. V.
BETHLEHEM SHIPBUILDING CORP., 308 U.S. 165.  LUMBERMENS QUALIFIED IN
NEW YORK TO CARRY ON ITS REGULAR INSURANCE BUSINESS.  IT SOLD PLAINTIFF
A POLICY THAT SHARES IN THE PROFITS OF THAT BUSINESS AND IT SHOULD
REQUIRE A SHOWING MUCH STRONGER THAN ANY HERE MADE TO REQUIRE THIS
POLICYHOLDER TO GO AWAY FROM HOME FOR RELIEF. 

PETITIONER, ON BEHALF OF LUMBERMENS, SEEKS RECOVERY FOR EXCESSIVE
PAYMENTS AND SERVICES BY LUMBERMENS TO THOSE WHO DOMINATE THE COMPANY,
AND FOR SALES OF COMPANY ASSETS TO THOSE PERSONS AT INADEQUATE PRICES. 
PETITIONER MUST PROVE THESE ALLEGATIONS.  NONE ARE NOW DENIED BY
DEFENDANT.  THAT PETITIONER'S SUCCESS WILL RESULT IN "MONETARY DAMAGE"
TO LUMBERMENS SEEMS IMPOSSIBLE.  PETITIONER'S SUCCESS WILL ENRICH
LUMBERMENS AT THE EXPENSE OF THOSE WHO ARE ALLEGED TO HAVE MULCTED IT
OF LARGE SUMS.  PETITIONER SPEAKS FOR THE WHOLE MEMBERSHIP AND ALL
POLICYHOLDERS OF LUMBERMENS.  FROM THIS RECORD, WE DO NOT SEE THAT AN
ADEQUATE BASIS OF FACT HAS BEEN LAID BY THE RESPONDENT'S AFFIDAVITS TO
OVERCOME THE RIGHT OF PETITIONER TO PURSUE HIS REMEDIES IN THE DISTRICT
COURT FOR THE EASTERN DISTRICT OF NEW YORK 

MR. JUSTICE BURTON JOINS IN THIS DISSENT. 
..END :






UNITED STATES V. MINE WORKERS, 330 U.S. 258 


ARGUED JANUARY 14, 1947.  - DECIDED MARCH 6, 1947.  - 70 F.SUPP.  42,
MODIFIED AND AFFIRMED. 


1.  NEITHER THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, NOR SEC. 20 OF THE
CLAYTON ACT, 38 STAT. 738, DEPRIVES A FEDERAL DISTRICT COURT OF
JURISDICTION TO ISSUE A RESTRAINING ORDER AND PRELIMINARY INJUNCTION IN
A SUIT BY THE GOVERNMENT TO PREVENT A UNION AND ITS OFFICERS FROM
PRECIPITATING A NATION-WIDE STRIKE IN THE BITUMINOUS COAL MINES PENDING
JUDICIAL INTERPRETATION OF A LABOR CONTRACT BETWEEN THE GOVERNMENT AND
THE UNION, AT A TIME WHEN THE MINES ARE BEING OPERATED BY THE
GOVERNMENT DURING A NATIONAL EMERGENCY PURSUANT TO AN EXECUTIVE ORDER
ISSUED BY THE PRESIDENT UNDER HIS CONSTITUTIONAL AUTHORITY AS PRESIDENT
AND AS COMMANDER IN CHIEF OF THE ARMY AND NAVY AND AUTHORITY CONFERRED
UPON HIM BY THE WAR LABOR DISPUTES ACT, 57 STAT. 163.  PP. 269-289. 

(A)  THE GENERAL TERM "EMPLOYER," AS USED IN THE RESTRICTIVE
PROVISIONS OF THE NORRIS-LAGUARDIA ACT AND THE CLAYTON ACT, DOES NOT
INCLUDE THE GOVERNMENT.  PP. 269-284. 

(B)  NEITHER THE POLICY NOR THE LEGISLATIVE HISTORY OF THOSE ACTS
DISCLOSES ANY INTENTION OF CONGRESS TO MAKE THEM APPLICABLE TO DISPUTES
BETWEEN THE GOVERNMENT AND ITS OWN EMPLOYEES.  PP. 273-280. 

(C)  VIEWS EXPRESSED IN DEBATES ON THE WAR LABOR DISPUTES ACT ELEVEN
YEARS AFTER THE PASSAGE OF THE NORRIS-LAGUARDIA ACT CANNOT BE ACCEPTED
AS AUTHORITATIVE GUIDES TO THE CONSTRUCTION OF THE LATTER, WHEN SOME OF
THOSE MAKING THE STATEMENTS WERE NOT MEMBERS OF CONGRESS AT THE TIME OF
THE PASSAGE OF THE ACT AND WHEN NONE HAD BEEN A MEMBER OF THE COMMITTEE
WHICH REPORTED THE BILL.  PP. 281-282. 

(D)  NEITHER THE REJECTION OF A SUBSTITUTE BILL WHICH WOULD HAVE
AUTHORIZED INJUNCTIONS UPON APPLICATION OF THE ATTORNEY GENERAL TO
RESTRAIN VIOLATIONS OF THE WAR LABOR DISPUTES ACT NOR ANYTHING ELSE IN
THE LEGISLATIVE HISTORY OF THAT ACT CONSTITUTES AN AUTHORITATIVE
EXPRESSION OF CONGRESS DIRECTING THE COURTS TO WITHHOLD INJUNCTIVE
RELIEF FROM THE GOVERNMENT IN DISPUTES WITH ITS OWN EMPLOYEES.  PP. 282
284. 

(E)  FOR THE PURPOSE OF THIS CASE, THE MINERS ARE EMPLOYEES OF THE
GOVERNMENT, EVEN THOUGH THE PRIVATE MANAGERS OF THE MINES HAVE BEEN
RETAINED AS OPERATING MANAGERS FOR THE GOVERNMENT AND THE REGULATIONS
PROVIDE THAT NONE OF THE EARNINGS OR LIABILITIES RESULTING FROM THE
OPERATION OF THE MINES ARE FOR THE ACCOUNT OR AT THE RISK OR EXPENSE OF
THE GOVERNMENT.  PP. 284-288. 

(F)  IN SEIZING AND OPERATING THE MINES, THE GOVERNMENT WAS
EXERCISING A SOVEREIGN FUNCTION.  P. 289. 

2.  EVEN IF THE NORRIS-LAGUARDIA ACT WERE APPLICABLE, THE DISTRICT
COURT, IN THE CIRCUMSTANCES OF THIS CASE, HAD POWER TO ISSUE A
RESTRAINING ORDER FOR THE PURPOSE OF PRESERVING EXISTING CONDITIONS
PENDING A DECISION UPON ITS OWN JURISDICTION; AND DISOBEDIENCE IS
PUNISHABLE AS CRIMINAL CONTEMPT.  PP. 289-295. 

3.  IN THIS CASE, NONE OF THE PROCEDURAL ASPECTS OF THE TRIAL
INVOLVED ERROR SO PREJUDICIAL AS TO REQUIRE REVERSAL OF THE JUDGMENTS
FOR CIVIL AND CRIMINAL CONTEMPT.  PP. 295-301. 

(A)  THE PROCEEDINGS COMPLIED WITH RULE 42(B) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE REQUIRING CRIMINAL CONTEMPT TO BE PROSECUTED ON
NOTICE STATING THE ESSENTIAL FACTS CONSTITUTING THE CONTEMPT CHARGED. 
P. 296. 

(B)  RULE 42(B) WAS NOT DESIGNED TO CAST DOUBT UPON THE PROPRIETY OF
INSTITUTING CRIMINAL CONTEMPT PROCEEDINGS ON PLEADINGS RESTING ONLY ON
INFORMATION AND BELIEF.  P. 296. 

(C)  ALTHOUGH THE REQUIREMENT OF RULE 42(B) THAT THE NOTICE ISSUING
TO DEFENDANTS DESCRIBE THE CRIMINAL CONTEMPT CHARGED AS SUCH WAS NOT
COMPLIED WITH, THIS DID NOT RESULT IN SUBSTANTIAL PREJUDICE TO
DEFENDANTS, WHERE THEY WERE FULLY AWARE THAT A CRIMINAL CONTEMPT WAS
CHARGED, ACTED ACCORDINGLY IN THEIR MOTIONS AND ARGUMENTS, AND ACTUALLY
ENJOYED DURING THE TRIAL ALL THE ENHANCED PROTECTIONS ACCORDED
DEFENDANTS IN CRIMINAL CONTEMPT PROCEEDINGS.  PP. 297-298. 

(D)  DEFENDANTS WERE PROPERLY TRIED BY THE COURT WITHOUT A JURY,
SINCE THEIR DEMAND FOR A JURY TRIAL WAS BASED ONLY ON SEC. 11 OF THE
NORRIS-LAGUARDIA ACT AND THIS CASE WAS NOT ONE "ARISING UNDER" THAT
ACT.  P. 298. 

(E)  HAVING BEEN ACCORDED ALL RIGHTS AND PRIVILEGES OWING TO
DEFENDANTS IN CRIMINAL CONTEMPT CASES, DEFENDANTS WERE NOT
SUBSTANTIALLY PREJUDICED BECAUSE THEIR TRIAL INCLUDED A PROCEEDING IN
CIVIL CONTEMPT AND WAS CARRIED ON IN THE MAIN EQUITY SUIT.  PP. 298
301. 

(F)  IN THE CIRCUMSTANCES OF THIS CASE, THERE WAS GOOD CAUSE FOR THE
EXTENSION OF THE TEMPORARY RESTRAINING ORDER AT A TIME WHEN THERE WAS
IN PROGRESS ARGUMENT ON DEFENDANTS' MOTION TO VACATE THE RULE TO SHOW
CAUSE IN THE CONTEMPT PROCEEDINGS.  P. 301. 

4.  THE GOVERNMENT WAS ENTITLED TO OBTAIN RELIEF IN THIS CASE BY WAY
OF CIVIL CONTEMPT AND WAS NOT LIMITED TO A PROCEEDING IN CRIMINAL
CONTEMPT.  PP. 301-302. 

5.  THE CONTEMPT CONTINUED FOR 15 DAYS FROM ISSUANCE OF THE
RESTRAINING ORDER UNTIL THE FINDING OF GUILTY.  ITS WILLFULNESS WAS NOT
QUALIFIED BY ANY CONCURRENT ATTEMPT OF DEFENDANTS TO CHALLENGE THE
ORDER.  IMMEDIATELY FOLLOWING THE FINDING OF GUILTY, DEFENDANT LEWIS,
PRESIDENT OF THE UNION, STATED OPENLY IN COURT THAT DEFENDANTS WOULD
ADHERE TO THEIR POLICY OF DEFIANCE.  THIS POLICY WAS CAUSING ECONOMIC
PARALYSIS WHICH WAS RAPIDLY SPREADING FROM THE COAL MINES TO
PRACTICALLY EVERY OTHER MAJOR INDUSTRY.  IT CONSTITUTED A SERIOUS
THREAT TO ORDERLY CONSTITUTIONAL GOVERNMENT AND TO THE ECONOMIC AND
SOCIAL WELFARE OF THE NATION.  WHILE LEWIS WAS THE AGGRESSIVE LEADER,
HE ACTED AS THE REPRESENTATIVE OF THE UNION; AND IT WAS THE MEMBERS OF
THE UNION WHO EXECUTED THE NATION-WIDE STRIKE.  HELD: 

(A)  THE TRIAL COURT PROPERLY FOUND BOTH LEWIS AND THE UNION GUILTY
OF BOTH CIVIL AND CRIMINAL CONTEMPT.  PP. 303-304. 

(B)  THE RECORD CLEARLY WARRANTS A FINE OF $10,000 AGAINST LEWIS FOR
CRIMINAL CONTEMPT; AND THAT FINE IS SUSTAINED.  P. 304. 

(C)  THE RECORD DOES NOT WARRANT THE UNCONDITIONAL IMPOSITION OF A
FINE OF $3,500,000 AGAINST THE UNION; AND THE JUDGMENT AGAINST THE
UNION IS MODIFIED SO AS TO REQUIRE IT (1) TO PAY A FINE OF $700,000 AND
(2) TO PAY AN ADDITIONAL FINE OF $2,800,000, UNLESS IT SHOWS WITHIN
FIVE DAYS AFTER THE ISSUANCE OF THE MANDATE HEREIN THAT IT HAS FULLY
COMPLIED WITH THE TEMPORARY RESTRAINING ORDER AND THE PRELIMINARY
INJUNCTION.  PP. 304-305. 

6.  IN IMPOSING A FINE FOR CRIMINAL CONTEMPT, A TRIAL JUDGE MAY
PROPERLY TAKE INTO CONSIDERATION THE EXTENT OF THE WILLFUL AND
DELIBERATE DEFIANCE OF THE COURT'S ORDER, THE SERIOUSNESS OF THE
CONSEQUENCES OF THE CONTUMACIOUS BEHAVIOR, THE NECESSITY OF EFFECTIVELY
TERMINATING THE DEFENDANT'S DEFIANCE AS REQUIRED BY THE PUBLIC
INTEREST, AND THE IMPORTANCE OF DETERRING SUCH ACTS IN THE FUTURE.  P.
303. 

7.  BECAUSE OF THE NATURE OF THESE STANDARDS, GREAT RELIANCE MUST BE
PLACED UPON THE DISCRETION OF THE TRIAL JUDGE.  P. 303. 

8.  WHERE THE PURPOSE OF JUDICIAL SANCTIONS IN CIVIL CONTEMPT
PROCEEDINGS IS TO COERCE THE DEFENDANT INTO COMPLIANCE WITH THE COURT'S
ORDER, THE COURT MUST CONSIDER THE CHARACTER AND MAGNITUDE OF THE HARM
THREATENED BY CONTINUED CONTUMACY AND THE PROBABLE EFFECTIVENESS OF ANY
SUGGESTED SANCTION IN BRINGING ABOUT THE DESIRED RESULT.  P. 304. 

9.  A COURT WHICH HAS RETURNED A CONVICTION FOR CONTEMPT MUST, IN
FIXING THE AMOUNT OF A FINE TO BE IMPOSED AS A PUNISHMENT OR AS A MEANS
OF SECURING FUTURE COMPLIANCE, CONSIDER THE AMOUNT OF DEFENDANT'S
FINANCIAL RESOURCES AND THE CONSEQUENT SERIOUSNESS OF THE BURDEN TO
THAT PARTICULAR DEFENDANT.  P. 304. 

UNITED STATES V. UNITED MINE WORKERS OF AMERICA. 

NO. 759.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA* . 

*TOGETHER WITH NO. 760, UNITED STATES V. LEWIS; NO. 781, UNITED MINE
WORKERS OF AMERICA V. UNITED STATES; NO. 782, LEWIS V. UNITED STATES;
AND NO. 811, UNITED MINE WORKERS OF AMERICA ET AL. V. UNITED STATES,
ALSO ON CERTIORARI TO THE SAME COURT. 

IN A FEDERAL DISTRICT COURT, A UNION AND ITS PRESIDENT WERE ADJUDGED
GUILTY OF CRIMINAL AND CIVIL CONTEMPT AND FINED FOR VIOLATION OF A
TEMPORARY RESTRAINING ORDER ISSUED IN A SUIT BY THE GOVERNMENT IN A
LABOR DISPUTE ARISING WHILE THE COAL MINES WERE IN THE POSSESSION OF,
AND WERE BEING OPERATED BY, THE GOVERNMENT PURSUANT TO EXECUTIVE ORDER
9728, 11 F.R. 5593, ISSUED UNDER THE PRESIDENT'S CONSTITUTIONAL
AUTHORITY AS COMMANDER IN CHIEF OF THE ARMY AND NAVY AND AUTHORITY
CONFERRED UPON HIM BY THE WAR LABOR DISPUTES ACT, 57 STAT. 163.  70
F.SUPP.  42.  WHILE AN APPEAL TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA WAS PENDING, THIS COURT GRANTED CERTIORARI
PURSUANT TO SEC. 240(A) OF THE JUDICIAL CODE.  329 U.S. 708, 709, 710. 
AFFIRMED, EXCEPT THAT THE FINE IMPOSED ON THE UNION IS MODIFIED
CONDITIONALLY, P. 307. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN OCTOBER, 1946, THE UNITED STATES WAS IN POSSESSION OF, AND
OPERATING, THE MAJOR PORTION OF THE COUNTRY'S BITUMINOUS COAL MINES. 
FN1 TERMS AND CONDITIONS OF EMPLOYMENT WERE CONTROLLED "FOR THE PERIOD
OF GOVERNMENT POSSESSION" BY AN AGREEMENT  FN2  ENTERED INTO ON MAY 29,
1946, BETWEEN SECRETARY OF THE INTERIOR KRUG, AS COAL MINES
ADMINISTRATOR, AND JOHN L. LEWIS, AS PRESIDENT OF THE UNITED MINE
WORKERS OF AMERICA.  FN3  THE KRUG-LEWIS AGREEMENT EMBODIED FAR
REACHING CHANGES FAVORABLE TO THE MINERS; FN4  AND, EXCEPT AS AMENDED
AND SUPPLEMENTED THEREIN, THE AGREEMENT CARRIED FORWARD THE TERMS AND
CONDITIONS OF THE NATIONAL BITUMINOUS COAL WAGE AGREEMENT OF APRIL 11,
1945.  FN5 

ON OCTOBER 21, 1946, THE DEFENDANT LEWIS DIRECTED A LETTER TO
SECRETARY KRUG AND PRESENTED ISSUES WHICH LED DIRECTLY TO THE PRESENT
CONTROVERSY.  ACCORDING TO THE DEFENDANT LEWIS, THE KRUG-LEWIS
AGREEMENT CARRIED FORWARD SEC. 15 OF THE NATIONAL BITUMINOUS COAL WAGE
AGREEMENT OF APRIL 11, 1945.  UNDER THAT SECTION EITHER PARTY TO THE
CONTRACT WAS PRIVILEGED TO GIVE TEN DAYS' NOTICE IN WRITING OF A DESIRE
FOR A NEGOTIATING CONFERENCE WHICH THE OTHER PARTY WAS REQUIRED TO
ATTEND; FIFTEEN DAYS AFTER THE BEGINNING OF THE CONFERENCE EITHER PARTY
MIGHT GIVE NOTICE IN WRITING OF THE TERMINATION OF THE AGREEMENT,
EFFECTIVE FIVE DAYS AFTER RECEIPT OF SUCH NOTICE.  ASSERTING AUTHORITY
UNDER THIS CLAUSE, THE DEFENDANT LEWIS IN HIS LETTER OF OCTOBER 21
REQUESTED THAT A CONFERENCE BEGIN NOVEMBER 1 FOR THE PURPOSE OF
NEGOTIATING NEW ARRANGEMENTS CONCERNING WAGES, HOURS, PRACTICES, AND
OTHER PERTINENT MATTERS APPERTAINING TO THE BITUMINOUS COAL INDUSTRY. 
FN6 

CAPTAIN N. H. COLLISSON, THEN COAL MINES ADMINISTRATOR, ANSWERED FOR
SECRETARY KRUG.  ANY CONTRACTUAL BASIS FOR REQUIRING NEGOTIATIONS FOR
REVISION OF THE KRUG-LEWIS AGREEMENT WAS DENIED.  FN7  IN THE OPINION
OF THE GOVERNMENT, SEC. 15 OF THE 1945 AGREEMENT HAD NOT BEEN PRESERVED
BY THE KRUG-LEWIS AGREEMENT; INDEED, SEC. 15 HAD BEEN EXPRESSLY
NULLIFIED BY THE CLAUSE OF THE LATTER CONTRACT PROVIDING THAT THE TERMS
CONTAINED THEREIN WERE TO COVER THE PERIOD OF GOVERNMENT POSSESSION. 
ALTHOUGH SUGGESTING THAT ANY NEGOTIATIONS LOOKING TOWARD A NEW
AGREEMENT BE CARRIED ON WITH THE MINE OWNERS, THE GOVERNMENT EXPRESSED
WILLINGNESS TO DISCUSS MATTERS AFFECTING THE OPERATION OF THE MINES
UNDER THE TERMS OF THE KRUG-LEWIS AGREEMENT. 

CONFERENCES WERE SCHEDULED AND BEGAN IN WASHINGTON ON NOVEMBER 1,
BOTH THE UNION AND THE GOVERNMENT ADHERING TO THEIR OPPOSING VIEWS
REGARDING THE RIGHT OF EITHER PARTY TO TERMINATE THE CONTRACT.  FN8 AT
THE FIFTH MEETING, HELD ON NOVEMBER 11, THE UNION FOR THE FIRST TIME
OFFERED SPECIFIC PROPOSALS FOR CHANGES IN WAGES AND OTHER CONDITIONS OF
EMPLOYMENT.  ON NOVEMBER 13 SECRETARY KRUG REQUESTED THE UNION TO
NEGOTIATE WITH THE MINE OWNERS.  THIS SUGGESTION WAS REJECTED.  FN9  ON
NOVEMBER 15 THE UNION, BY JOHN L. LEWIS, NOTIFIED SECRETARY KRUG THAT
"FIFTEEN DAYS HAVING NOW ELAPSED SINCE THE BEGINNING OF SAID
CONFERENCE, THE UNITED MINE WORKERS OF AMERICA, EXERCISING ITS OPTION
HEREBY TERMINATES SAID KRUG-LEWIS AGREEMENT AS OF 12:00 O'CLOCK P.M.,
MIDNIGHT, WEDNESDAY, NOVEMBER 20, 1946." 

SECRETARY KRUG AGAIN NOTIFIED THE DEFENDANT LEWIS THAT HE HAD NO
POWER UNDER THE KRUG-LEWIS AGREEMENT OR UNDER THE LAW TO TERMINATE THE
CONTRACT BY UNILATERAL DECLARATION N10.  THE PRESIDENT OF THE UNITED
STATES ANNOUNCED HIS STRONG SUPPORT OF THE GOVERNMENT'S POSITION AND
REQUESTED RECONSIDERATION BY THE UNION IN ORDER TO AVOID A NATIONAL
CRISIS.  HOWEVER, THE DEFENDANT LEWIS, AS UNION PRESIDENT, CIRCULATED
TO THE MINE WORKERS COPIES OF THE NOVEMBER 15 LETTER TO SECRETARY
KRUG.  THIS COMMUNICATION WAS FOR THE "OFFICIAL INFORMATION" OF UNION
MEMBERS. 

THE UNITED STATES ON NOVEMBER 18 FILED A COMPLAINT IN THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA AGAINST THE UNITED MINE WORKERS OF
AMERICA AND JOHN L. LEWIS, INDIVIDUALLY AND AS PRESIDENT OF THE UNION. 
THE SUIT WAS BROUGHT UNDER THE DECLARATORY JUDGMENT ACT  FN11  AND
SOUGHT JUDGMENT TO THE EFFECT THAT THE DEFENDANTS HAD NO POWER
UNILATERALLY TO TERMINATE THE KRUG-LEWIS AGREEMENT.  AND, ALLEGING THAT
THE NOVEMBER 15 NOTICE WAS IN REALITY A STRIKE NOTICE, THE UNITED
STATES, PENDING THE FINAL DETERMINATION OF THE CAUSE, REQUESTED A
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTIVE RELIEF. 

THE COURT, IMMEDIATELY AND WITHOUT NOTICE TO THE DEFENDANTS, ISSUED A
TEMPORARY ORDER  FN12 RESTRAINING THE DEFENDANTS FROM CONTINUING IN
EFFECT THE NOTICE OF NOVEMBER 15, FROM ENCOURAGING THE MINE WORKERS TO
INTERFERE WITH THE OPERATION OF THE MINES BY STRIKE OR CESSATION OF
WORK, AND FROM TAKING ANY ACTION WHICH WOULD INTERFERE WITH THE COURT'S
JURISDICTION AND ITS DETERMINATION OF THE CASE.  THE ORDER BY ITS TERMS
WAS TO EXPIRE AT 3:00 P.M. ON NOVEMBER 27 UNLESS EXTENDED FOR GOOD
CAUSE SHOWN.  A HEARING ON THE PRELIMINARY INJUNCTION WAS SET FOR 10:00
A.M. ON THE SAME DATE.  THE ORDER AND COMPLAINT WERE SERVED ON THE
DEFENDANTS ON NOVEMBER 18. 

A GRADUAL WALKOUT BY THE MINERS COMMENCED ON NOVEMBER 18, AND, BY
MIDNIGHT OF NOVEMBER 20, CONSISTENT WITH THE MINERS'"NO CONTRACT, NO
WORK" POLICY, A FULL-BLOWN STRIKE WAS IN PROGRESS.  MINES FURNISHING
THE MAJOR PART OF THE NATION'S BITUMINOUS COAL PRODUCTION WERE IDLE. 

ON NOVEMBER 21 THE UNITED STATES FILED A PETITION FOR A RULE TO SHOW
CAUSE WHY THE DEFENDANTS SHOULD NOT BE PUNISHED AS AND FOR CONTEMPT,
ALLEGING A WILLFUL VIOLATION OF THE RESTRAINING ORDER.  THE RULE
ISSUED, SETTING NOVEMBER 25 AS THE RETURN DAY AND, IF AT THAT TIME THE
CONTEMPT WAS NOT SUFFICIENTLY PURGED, SETTING NOVEMBER 27 AS THE DAY
FOR TRIAL ON THE CONTEMPT CHARGE. 

ON THE RETURN DAY, DEFENDANTS, BY COUNSEL, INFORMED THE COURT THAT NO
ACTION HAD BEEN TAKEN CONCERNING THE NOVEMBER 15 NOTICE, AND DENIED THE
JURISDICTION OF THE COURT TO ISSUE THE RESTRAINING ORDER AND RULE TO
SHOW CAUSE.  TRIAL ON THE CONTEMPT CHARGE WAS THEREUPON ORDERED TO
BEGIN AS SCHEDULED ON NOVEMBER 27.  ON NOVEMBER 26 THE DEFENDANTS FILED
A MOTION TO DISCHARGE AND VACATE THE RULE TO SHOW CAUSE.  THEIR MOTION
CHALLENGED THE JURISDICTION OF THE COURT, AND RAISED THE GRAVE QUESTION
OF WHETHER THE NORRIS-LAGUARDIA ACT  FN13  PROHIBITED THE GRANTING OF
THE TEMPORARY RESTRAINING ORDER AT THE INSTANCE OF THE UNITED STATES. 
FN14 

AFTER EXTENDING THE TEMPORARY RESTRAINING ORDER ON NOVEMBER 27, AND
AFTER FULL ARGUMENT ON NOVEMBER 27 AND NOVEMBER 29, THE COURT, ON THE
LATTER DATE, OVERRULED THE MOTION AND HELD THAT ITS POWER TO ISSUE THE
RESTRAINING ORDER IN THIS CASE WAS NOT AFFECTED BY EITHER THE NORRIS
LAGUARDIA ACT OR THE CLAYTON ACT.  FN15 

THE DEFENDANTS THEREUPON PLEADED NOT GUILTY AND WAIVED AN ADVISORY
JURY.  TRIAL ON THE CONTEMPT CHARGE PROCEEDED.  THE GOVERNMENT
PRESENTED EIGHT WITNESSES, THE DEFENDANTS NONE.  AT THE CONCLUSION OF
THE TRIAL ON DECEMBER 3, THE COURT FOUND THAT THE DEFENDANTS HAD
PERMITTED THE NOVEMBER 15 NOTICE TO REMAIN OUTSTANDING, HAD ENCOURAGED
THE MINERS TO INTERFERE BY A STRIKE WITH THE OPERATION OF THE MINES AND
WITH THE PERFORMANCE OF GOVERNMENTAL FUNCTIONS, AND HAD INTERFERED WITH
THE JURISDICTION OF THE COURT.  BOTH DEFENDANTS WERE FOUND GUILTY
BEYOND REASONABLE DOUBT OF BOTH CRIMINAL AND CIVIL CONTEMPT DATING FROM
NOVEMBER 18.  THE COURT ENTERED JUDGMENT ON DECEMBER 4, FINING THE
DEFENDANT LEWIS $10,000, AND THE DEFENDANT UNION $3,500,000.  ON THE
SAME DAY A PRELIMINARY INJUNCTION, EFFECTIVE UNTIL A FINAL
DETERMINATION OF THE CASE, WAS ISSUED IN TERMS SIMILAR TO THOSE OF THE
RESTRAINING ORDER. 

ON DECEMBER 5 THE DEFENDANTS FILED NOTICES OF APPEAL FROM THE
JUDGMENTS OF CONTEMPT.  THE JUDGMENTS WERE STAYED PENDING THE APPEALS. 
THE UNITED STATES ON DECEMBER 6 FILED A PETITION FOR CERTIORARI IN BOTH
CASES.  SECTION 240(A) OF THE JUDICIAL CODE AUTHORIZES A PETITION FOR
CERTIORARI BY ANY PARTY AND THE GRANTING OF CERTIORARI PRIOR TO
JUDGMENT IN THE CIRCUIT COURT OF APPEALS.  PROMPT SETTLEMENT OF THIS
CASE BEING IN THE PUBLIC INTEREST, WE GRANTED CERTIORARI ON DECEMBER 9,
AND SUBSEQUENTLY, FOR SIMILAR REASONS, GRANTED PETITIONS FOR CERTIORARI
FILED BY THE DEFENDANTS, 329 U.S. 708, 709, 710.  THE CASES WERE
CONSOLIDATED FOR ARGUMENT. 

                                I. 

DEFENDANTS' FIRST AND PRINCIPAL CONTENTION IS THAT THE RESTRAINING
ORDER AND PRELIMINARY INJUNCTION WERE ISSUED IN VIOLATION OF THE
CLAYTON AND NORRIS-LAGUARDIA ACTS.  WE HAVE COME TO A CONTRARY
DECISION. 

IT IS TRUE THAT CONGRESS DECREED IN SEC. 20 OF THE CLAYTON ACT THAT
"NO SUCH RESTRAINING ORDER OR INJUNCTION SHALL PROHIBIT ANY PERSON OR
PERSONS  ...  FROM RECOMMENDING, ADVISING, OR PERSUADING OTHERS  ..." 
TO STRIKE.  BUT BY THE ACT ITSELF THIS PROVISION WAS MADE APPLICABLE
ONLY TO CASES "BETWEEN AN EMPLOYER AND EMPLOYEES, OR BETWEEN EMPLOYERS
AND EMPLOYEES, OR BETWEEN EMPLOYEES, OR BETWEEN PERSONS EMPLOYED AND
PERSONS SEEKING EMPLOYMENT...."  FN16  FOR REASONS WHICH WILL BE
EXPLAINED AT GREATER LENGTH IN DISCUSSING THE APPLICABILITY OF THE
NORRIS-LAGUARDIA ACT, WE CANNOT CONSTRUE THE GENERAL TERM "EMPLOYER" TO
INCLUDE THE UNITED STATES, WHERE THERE IS NO EXPRESS REFERENCE TO THE
UNITED STATES AND NO EVIDENT AFFIRMATIVE GROUNDS FOR BELIEVING THAT
CONGRESS INTENDED TO WITHHOLD AN OTHERWISE AVAILABLE REMEDY FROM THE
GOVERNMENT AS WELL AS FROM A SPECIFIED CLASS OF PRIVATE PERSONS. 

MOREOVER, IT SEEMS NEVER TO HAVE BEEN SUGGESTED THAT THE PROSCRIPTION
ON INJUNCTIONS FOUND IN THE CLAYTON ACT IS IN ANY RESPECT BROADER THAN
THAT IN THE NORRIS-LAGUARDIA ACT.  DEFENDANTS DO NOT SUGGEST IN THEIR
ARGUMENT THAT IT IS.  THIS COURT, ON THE CONTRARY, HAS STATED THAT THE
NORRIS-LAGUARDIA ACT "STILL FURTHER  ...  (NARROWED) THE CIRCUMSTANCES
UNDER WHICH THE FEDERAL COURTS COULD GRANT INJUNCTIONS IN LABOR
DISPUTES."  FN17  CONSEQUENTLY, WE WOULD FEEL JUSTIFIED IN THIS CASE TO
CONSIDER THE APPLICATION OF THE NORRIS-LAGUARDIA ACT ALONE.  IF IT DOES
NOT APPLY, NEITHER DOES THE LESS COMPREHENSIVE PROSCRIPTION OF THE
CLAYTON ACT; FN18  IF IT DOES, DEFENDANTS' RELIANCE ON THE CLAYTON ACT
IS UNNECESSARY. 

BY THE NORRIS-LAGUARDIA ACT, CONGRESS DIVESTED THE FEDERAL COURTS OF
JURISDICTION TO ISSUE INJUNCTIONS IN A SPECIFIED CLASS OF CASES.  IT
WOULD PROBABLY BE CONCEDED THAT THE CHARACTERISTICS OF THE PRESENT CASE
WOULD BE SUCH AS TO BRING IT WITHIN THAT CLASS IF THE BASIC DISPUTE HAD
REMAINED ONE BETWEEN DEFENDANTS AND A PRIVATE EMPLOYER, AND THE LATTER
HAD BEEN THE PLAINTIFF BELOW.  SO MUCH SEEMS TO BE FOUND IN THE EXPRESS
TERMS OF SECS. 4 AND 13 OF THE ACT, SET OUT IN THE MARGIN.  FN19  THE
SPECIFICATIONS IN SEC. 13 ARE IN GENERAL TERMS AND MAKE NO EXPRESS
EXCEPTION OF THE UNITED STATES.  FROM THESE PREMISES, DEFENDANTS ARGUE
THAT THE RESTRAINING ORDER AND INJUNCTION WERE FORBIDDEN BY THE ACT AND
WERE WRONGFULLY ISSUED. 

EVEN IF OUR EXAMINATION OF THE ACT STOPPED HERE, WE COULD HARDLY
ASSENT TO THIS CONCLUSION.  THERE IS AN OLD AND WELL-KNOWN RULE THAT
STATUTES WHICH IN GENERAL TERMS DIVEST PRE-EXISTING RIGHTS OR
PRIVILEGES WILL NOT BE APPLIED TO THE SOVEREIGN WITHOUT EXPRESS WORDS
TO THAT EFFECT.  FN20  IT HAS BEEN STATED, IN CASES IN WHICH THERE WERE
EXTRANEOUS AND AFFIRMATIVE REASONS FOR BELIEVING THAT THE SOVEREIGN
SHOULD ALSO BE DEEMED SUBJECT TO A RESTRICTIVE STATUTE, THAT THIS RULE
WAS A RULE OF CONSTRUCTION ONLY.  FN21  THOUGH THAT MAY BE TRUE, THE
RULE HAS BEEN INVOKED SUCCESSFULLY IN CASES SO CLOSELY SIMILAR TO THE
PRESENT ONE,  FN22  AND THE STATEMENT OF THE RULE IN THOSE CASES HAS
BEEN SO EXPLICIT,  FN23  THAT WE ARE INCLINED TO GIVE IT MUCH WEIGHT
HERE.  CONGRESS WAS NOT IGNORANT OF THE RULE WHICH THOSE CASES
REITERATED; AND, WITH KNOWLEDGE OF THAT RULE, CONGRESS WOULD NOT, IN
WRITING THE NORRIS-LAGUARDIA ACT, OMIT TO USE "CLEAR AND SPECIFIC
(LANGUAGE) TO THAT EFFECT" IF IT ACTUALLY INTENDED TO REACH THE
GOVERNMENT IN ALL CASES.    BUT WE NEED NOT PLACE ENTIRE RELIANCE ON
THIS EXCLUSIONARY RULE.  SECTION 2,  FN24  WHICH DECLARED THE PUBLIC
POLICY OF THE UNITED STATES AS A GUIDE TO THE ACT'S INTERPRETATION,
CARRIES INDICATIONS AS TO THE SCOPE OF THE ACT.  IT PREDICATES THE
PURPOSE OF THE ACT ON THE CONTRAST BETWEEN THE POSITION OF THE
"INDIVIDUAL UNORGANIZED WORKER" AND THAT OF THE "OWNERS OF PROPERTY"
WHO HAVE BEEN PERMITTED TO "ORGANIZE IN THE CORPORATE AND OTHER FORMS
OF OWNERSHIP ASSOCIATION," AND ON THE CONSEQUENT HELPLESSNESS OF THE
WORKER "TO EXERCISE ACTUAL LIBERTY OF CONTRACT  ...  AND THEREBY TO
OBTAIN ACCEPTABLE TERMS AND CONDITIONS OF EMPLOYMENT."  THE PURPOSE OF
THE ACT IS SAID TO BE TO CONTRIBUTE TO THE WORKER'S "FULL FREEDOM OF
ASSOCIATION, SELF-ORGANIZATION, AND DESIGNATION OF REPRESENTATIVES OF
HIS OWN CHOOSING, TO NEGOTIATE THE TERMS AND CONDITIONS OF HIS
EMPLOYMENT, AND THAT HE SHALL BE FREE FROM THE INTERFERENCE, RESTRAINT,
OR COERCION OF EMPLOYERS OF LABOR, OR THEIR AGENTS, IN THE DESIGNATION
OF SUCH REPRESENTATIVES  ...  FOR THE PURPOSE OF COLLECTIVE
BARGAINING...."  THESE CONSIDERATIONS, ON THEIR FACE, OBVIOUSLY DO NOT
APPLY TO THE GOVERNMENT AS AN EMPLOYER OR TO RELATIONS BETWEEN THE
GOVERNMENT AND ITS EMPLOYEES. 

IF WE EXAMINE SECS. 4 AND 13, ON WHICH DEFENDANTS RELY, WE NOTE THAT
THEY DO NOT PURPORT TO STRIP COMPLETELY FROM THE FEDERAL COURTS ALL
THEIR PRE-EXISTING POWERS TO ISSUE INJUNCTIONS, THAT THEY WITHDRAW THIS
POWER ONLY IN A SPECIFIED TYPE OF CASE, AND THAT THIS TYPE IS A CASE
"INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE."  SECTION 13, IN THE
FIRST INSTANCE, DECLARES A CASE TO BE OF THIS TYPE WHEN IT "INVOLVES
PERSONS" OR "INVOLVES ANY CONFLICTING OR COMPETING INTERESTS" IN A
LABOR DISPUTE OF "PERSONS" WHO STAND IN ANY ONE OF SEVERAL DEFINED
ECONOMIC RELATIONSHIPS.  AND "PERSONS" MUST BE INVOLVED ON BOTH SIDES
OF THE CASE, OR THE CONFLICTING INTERESTS OF "PERSONS" ON BOTH SIDES OF
THE DISPUTE.  THE ACT DOES NOT DEFINE "PERSONS."  IN COMMON USAGE THAT
TERM DOES NOT INCLUDE THE SOVEREIGN, AND STATUTES EMPLOYING IT WILL
ORDINARILY NOT BE CONSTRUED TO DO SO.  FN25 CONGRESS MADE EXPRESS
PROVISION, R.S. SEC. 1, 1 U.S.C. SEC. 1, FOR THE TERM TO EXTEND TO
PARTNERSHIPS AND CORPORATIONS, AND IN SEC. 13 OF THE ACT ITSELF FOR IT
TO EXTEND TO ASSOCIATIONS.  THE ABSENCE OF ANY COMPARABLE PROVISION
EXTENDING THE TERM TO SOVEREIGN GOVERNMENTS IMPLIES THAT CONGRESS DID
NOT DESIRE THE TERM TO EXTEND TO THEM. 

THOSE CLAUSES IN SEC. 13(A) AND (B) SPELLING OUT THE POSITION OF
"PERSONS" RELATIVE TO THE EMPLOYER-EMPLOYEE RELATIONSHIP AFFIRMATIVELY
SUGGEST THAT THE UNITED STATES, AS AN EMPLOYER, WAS NOT MEANT TO BE
INCLUDED.  THOSE CLAUSES REQUIRE THAT THE CASE INVOLVE PERSONS "WHO ARE
ENGAGED IN THE SAME INDUSTRY, TRADE, CRAFT, OR OCCUPATION," WHO "HAVE
DIRECT OR INDIRECT INTERESTS THEREIN," WHO ARE "EMPLOYEES OF THE SAME
EMPLOYER," WHO ARE "MEMBERS OF THE SAME OR AN AFFILIATED ORGANIZATION
OF EMPLOYERS OR EMPLOYEES," OR WHO STAND IN SOME ONE OF OTHER SPECIFIED
POSITIONS RELATIVE TO A DISPUTE OVER THE EMPLOYER-EMPLOYEE
RELATIONSHIP.  EVERY ONE OF THESE QUALIFICATIONS IN SEC. 13(A) AND (B)
WE THINK RELATES TO AN ECONOMIC ROLE ORDINARILY FILLED BY A PRIVATE
INDIVIDUAL OR CORPORATION, AND NOT BY A SOVEREIGN GOVERNMENT.  NONE OF
THEM IS AT ALL SUGGESTIVE OF ANY PART PLAYED BY THE UNITED STATES IN
ITS RELATIONS WITH ITS OWN EMPLOYEES.  WE THINK THAT CONGRESS' FAILURE
TO REFER TO THE UNITED STATES OR TO SPECIFY ANY ROLE WHICH IT MIGHT
COMMONLY BE THOUGHT TO FILL IS STRONG INDICATION THAT IT DID NOT INTEND
THAT THE ACT SHOULD APPLY TO SITUATIONS IN WHICH THE UNITED STATES
APPEARS AS EMPLOYER. 

IN THE TYPE OF CASE TO WHICH THE ACT APPLIES, SEC. 7 REQUIRES CERTAIN
FINDINGS OF FACT AS CONDITIONS PRECEDENT TO THE ISSUANCE OF INJUNCTIONS
EVEN FOR THE LIMITED PURPOSES RECOGNIZED BY THE ACT.  ONE SUCH REQUIRED
FINDING IS THAT "THE PUBLIC OFFICERS CHARGED WITH THE DUTY TO PROTECT
COMPLAINANT'S PROPERTY ARE UNABLE OR UNWILLING TO FURNISH ADEQUATE
PROTECTION."  OBVIOUSLY, SUCH FINDING COULD NEVER BE MADE IF THE
COMPLAINANT WERE THE UNITED STATES, AND FEDERAL PROPERTY WERE
THREATENED BY FEDERAL EMPLOYEES, AS THE RESPONSIBILITY OF PROTECTION
WOULD THEN REST NOT ONLY ON STATE OFFICERS, BUT ALSO ON ALL FEDERAL
CIVIL AND MILITARY FORCES.  IF THESE FAILED, A FEDERAL INJUNCTION WOULD
BE A MEANINGLESS FORM.  THIS PROVISION, LIKE THOSE IN SECS. 2, 4 AND
13, ALREADY DISCUSSED, INDICATES THAT THE ACT WAS NOT INTENDED TO
AFFECT THE RELATIONS BETWEEN THE UNITED STATES AND ITS EMPLOYEES. 

DEFENDANTS MAINTAIN THAT CERTAIN FACTS IN THE LEGISLATIVE HISTORY OF
THE ACT SO CLEARLY INDICATE AN INTENT TO RESTRICT THE GOVERNMENT'S USE
OF INJUNCTIONS THAT ALL THE FOREGOING ARGUMENTS TO THE CONTRARY MUST BE
REJECTED. 

REPRESENTATIVE BECK OF PENNSYLVANIA INDICATED IN THE COURSE OF THE
HOUSE DEBATES THAT HE THOUGHT THE GOVERNMENT WOULD BE INCLUDED WITHIN
THE PROHIBITIONS OF THE ACT.  FN26  MR. BECK WAS NOT A MEMBER OF THE
JUDICIARY COMMITTEE WHICH REPORTED THE BILL, AND DID NOT VOTE FOR ITS
PASSAGE.  WE DO NOT ACCEPT HIS VIEWS AS EXPRESSIVE OF THE ATTITUDE OF
CONGRESS RELATIVE TO THE STATUS OF THE UNITED STATES UNDER THE ACT. 

REPRESENTATIVE BLANTON OF TEXAS INTRODUCED AN AMENDMENT TO THE BILL
WHICH WOULD HAVE MADE AN EXCEPTION TO THE PROVISION LIMITING THE
INJUNCTIVE POWER "WHERE THE UNITED STATES GOVERNMENT IS THE
PETITIONER," AND THIS AMENDMENT WAS DEFEATED BY THE HOUSE.  FN27  BUT
THE FIRST COMMENT MADE ON THIS AMENDMENT, AFTER ITS INTRODUCTION, WAS
THAT OF REPRESENTATIVE LAGUARDIA, THE HOUSE SPONSOR OF THE BILL, WHO
OPPOSED IT, NOT ON THE GROUND THAT SUCH AN EXCEPTION SHOULD NOT BE
MADE, BUT RATHER ON THE GROUND THAT THE EXPRESS EXCEPTION WAS
UNNECESSARY.  MR. LAGUARDIA READ THE DEFINITION OF A PERSON
"PARTICIPATING OR INTERESTED IN A LABOR DISPUTE" IN SEC. 13(B),
REFERRED TO THE PROVISIONS OF SEC. 13(A), AND THEN ADDED:  "I DO NOT
SEE HOW IN ANY POSSIBLE WAY THE UNITED STATES CAN BE BROUGHT IN UNDER
THE PROVISIONS OF THIS BILL."  WHEN MR. BLANTON THEREUPON SUGGESTED THE
NECESSITY OF ALLOWING THE GOVERNMENT TO USE INJUNCTIONS TO MAINTAIN
DISCIPLINE IN THE ARMY AND NAVY, MR. LAGUARDIA POINTED OUT THAT THESE
SERVICES ARE NOT "A TRADE, CRAFT, OR OCCUPATION."  MR. BLANTON'S ONLY
ANSWER TO MR. LAGUARDIA'S OPPOSITION WAS THAT THE LATTER "DOES NOT KNOW
WHAT EXTENSIONS WILL BE MADE."  A VOTE WAS THEN TAKEN AND THE AMENDMENT
DEFEATED.  FN28  OBVIOUSLY THIS INCIDENT DOES NOT REVEAL A
CONGRESSIONAL INTENT TO LEGISLATE CONCERNING THE RELATIONSHIP BETWEEN
THE UNITED STATES AND ITS EMPLOYEES. 

IN THE DEBATES IN BOTH HOUSES OF CONGRESS NUMEROUS REFERENCES WERE
MADE TO PREVIOUS INSTANCES IN WHICH THE UNITED STATES HAD RESORTED TO
THE INJUNCTIVE PROCESS IN LABOR DISPUTES BETWEEN PRIVATE EMPLOYERS AND
PRIVATE EMPLOYEES,  FN29  WHERE SOME PUBLIC INTEREST WAS THOUGHT TO
HAVE BECOME INVOLVED.  THESE INSTANCES WERE OFFERED AS ILLUSTRATIONS OF
THE ABUSES FLOWING FROM THE USE OF INJUNCTIONS IN LABOR DISPUTES AND
THE DESIRABILITY OF PLACING A LIMITATION THEREON.  THE FREQUENCY OF
THESE REFERENCES AND THE ATTENTION DIRECTED TO THEIR SUBJECT MATTER ARE
COMPELLING CIRCUMSTANCES.  WE AGREE THAT THEY INDICATE THAT CONGRESS,
IN PASSING THE ACT, DID NOT INTEND TO PERMIT THE UNITED STATES TO
CONTINUE TO INTERVENE BY INJUNCTION IN PURELY PRIVATE LABOR DISPUTES. 

BUT WHETHER CONGRESS SO INTENDED OR NOT IS A QUESTION DIFFERENT FROM
THE ONE BEFORE US NOW.  HERE WE ARE CONCERNED ONLY WITH THE
GOVERNMENT'S RIGHT TO INJUNCTIVE RELIEF IN A DISPUTE WITH ITS OWN
EMPLOYEES.  ALTHOUGH WE RECOGNIZE THAT CONGRESS INTENDED TO WITHDRAW
SUCH REMEDY IN THE FORMER SITUATION, IT DOES NOT FOLLOW THAT IT
INTENDED TO DO SO IN THE LATTER.  THE CIRCUMSTANCES IN WHICH THE
GOVERNMENT SOUGHT SUCH REMEDY IN 1894 AND 1922 WERE VASTLY DIFFERENT
FROM THOSE IN WHICH THE GOVERNMENT IS SEEKING TO CARRY OUT ITS
RESPONSIBILITIES BY TAKING LEGAL ACTION AGAINST ITS OWN EMPLOYEES, AND
WE THINK THAT THE REFERENCES IN QUESTION HAVE ONLY THE MOST DISTANT AND
UNCERTAIN BEARING ON OUR PRESENT PROBLEM.  INDEED, WHEN WE LOOK FURTHER
INTO THE HISTORY OF THE ACT, WE FIND OTHER EVENTS WHICH UNEQUIVOCALLY
DEMONSTRATE THAT INJUNCTIVE RELIEF WAS NOT INTENDED TO BE WITHDRAWN IN
THE LATTER SITUATION. 

WHEN THE HOUSE HAD BEFORE IT A RULE FOR THE CONSIDERATION OF THE
BILL, REPRESENTATIVE MICHENER, A RANKING MINORITY MEMBER OF THE
JUDICIARY COMMITTEE AND SPOKESMAN FOR THE MINORITY PARTY ON THE RULES
COMMITTEE, MADE A GENERAL STATEMENT IN THE HOUSE CONCERNING THE SUBJECT
MATTER OF THE BILL AND ADVOCATING ITS IMMEDIATE CONSIDERATION.  IN THIS
SURVEY HE CLEARLY STATED THAT THE GOVERNMENT'S RIGHTS WITH RESPECT TO
ITS OWN EMPLOYEES WOULD NOT BE AFFECTED:  FN30 

"BE IT REMEMBERED THAT THIS BILL DOES NOT ATTEMPT TO LEGISLATE
CONCERNING GOVERNMENT EMPLOYEES.  I DO NOT BELIEVE THAT THE ENACTMENT
OF THIS BILL INTO LAW WILL TAKE AWAY FROM THE FEDERAL GOVERNMENT ANY
RIGHTS WHICH IT HAS UNDER EXISTING LAW, TO SEEK AND OBTAIN INJUNCTIVE
RELIEF WHERE THE SAME IS NECESSARY FOR THE FUNCTIONING OF THE
GOVERNMENT." 

IN A LATER STAGE OF THE DEBATE, REPRESENTATIVE MICHENER REPEATED THIS
VIEW IN THE FOLLOWING TERMS:  FN31 

"THIS DEALS WITH LABOR DISPUTES BETWEEN INDIVIDUALS, NOT WHERE THE
GOVERNMENT IS INVOLVED.  IT IS MY NOTION THAT UNDER THIS BILL THE
GOVERNMENT CAN FUNCTION WITH AN INJUNCTION, IF THAT IS NECESSARY IN
ORDER TO CARRY OUT THE PURPOSE OF THE GOVERNMENT.  I SHOULD LIKE TO SEE
THIS CLARIFIED, BUT I WANT TO GO ON RECORD AS SAYING THAT UNDER MY
INTERPRETATION OF THIS BILL THE FEDERAL GOVERNMENT WILL NOT AT ANY TIME
BE PREVENTED FROM APPLYING FOR AN INJUNCTION, IF ONE IS NECESSARY IN
ORDER THAT THE GOVERNMENT MAY FUNCTION." 

REPRESENTATIVES MICHENER AND LAGUARDIA WERE MEMBERS OF THE JUDICIARY
COMMITTEE WHICH REPORTED AND RECOMMENDED THE BILL TO THE HOUSE.  THEY
WERE THE MOST ACTIVE SPOKESMEN FOR THE COMMITTEE, BOTH IN EXPLAINING
THE BILL AND ADVOCATING ITS PASSAGE.  NO MEMBER OF THE HOUSE WHO VOTED
FOR THE BILL CHALLENGED THEIR EXPLANATIONS.  AT LEAST ONE OTHER MEMBER
EXPRESSED A LIKE UNDERSTANDING N32.  WE CANNOT BUT BELIEVE THAT THE
HOUSE ACCEPTED THESE AUTHORITATIVE REPRESENTATIONS AS TO THE PROPER
CONSTRUCTION OF THE BILL.  FN33  THE SENATE EXPRESSED NO CONTRARY
UNDERSTANDING,  FN34  AND WE MUST CONCLUDE THAT CONGRESS, IN PASSING
THE ACT, DID NOT INTEND TO WITHDRAW THE GOVERNMENT'S EXISTING RIGHTS TO
INJUNCTIVE RELIEF AGAINST ITS OWN EMPLOYEES. 

IF WE WERE TO STOP HERE, THERE WOULD BE LITTLE DIFFICULTY IN
ACCEPTING THE DECISION OF THE DISTRICT COURT UPON THE SCOPE OF THE
ACT.  AND THE CASES IN THIS COURT EXPRESS CONSISTENT VIEWS CONCERNING
THE TYPES OF SITUATIONS TO WHICH THE ACT APPLIES.  FN35  THEY HAVE GONE
NO FARTHER THAN TO FOLLOW CONGRESSIONAL DESIRES BY REGARDING AS BEYOND
THE JURISDICTION OF THE DISTRICT COURTS THE ISSUANCE OF INJUNCTIONS
SOUGHT BY THE UNITED STATES AND DIRECTED TO PERSONS WHO ARE NOT
EMPLOYEES OF THE UNITED STATES.  NONE OF THESE CASES DEALT WITH THE
NARROW SEGMENT OF THE EMPLOYER-EMPLOYEE RELATIONSHIP NOW BEFORE US. 

BUT REGARDLESS OF THE DETERMINATIVE GUIDANCE SO OFFERED, DEFENDANTS
RELY UPON THE OPINIONS OF SEVERAL SENATORS UTTERED IN MAY, 1943, WHILE
DEBATING THE SENATE VERSION OF THE WAR LABOR DISPUTES ACT.  FN36  THE
DEBATE AT THAT TIME CENTERED AROUND A SUBSTITUTE FOR THE BILL, S. 796,
AS ORIGINALLY INTRODUCED.  FN37  SECTION 5 OF THE SUBSTITUTE, AS
AMENDED, PROVIDED, "THE DISTRICT COURTS OF THE UNITED STATES AND THE
UNITED STATES COURTS OF THE TERRITORIES OR POSSESSIONS SHALL HAVE
JURISDICTION, FOR CAUSE SHOWN, BUT SOLELY UPON APPLICATION BY THE
ATTORNEY GENERAL OR UNDER HIS DIRECTION  ...  TO RESTRAIN VIOLATIONS OR
THREATENED VIOLATIONS OF THIS ACT."  FN38  FOLLOWING THE REJECTION OF
OTHER AMENDMENTS AIMED AT PERMITTING A MUCH WIDER USE OF INJUNCTIONS
AND CHARACTERIZED AS CONTRARY TO THE NORRIS-LAGUARDIA ACT,  FN39
SEVERAL SENATORS WERE OF THE OPINION THAT SEC. 5 ITSELF WOULD REMOVE
SOME OF THE PROTECTION GIVEN EMPLOYEES BY THAT ACT,  FN40  A VIEW
CONTRARY TO WHAT WE HAVE JUST DETERMINED TO BE THE SCOPE OF THE ACT AS
PASSED IN 1932.  SECTION 5 WAS DEFEATED AND NO INJUNCTIVE PROVISIONS
WERE CONTAINED IN THE SENATE BILL. 

WE HAVE CONSIDERED THESE OPINIONS, BUT CANNOT ACCEPT THEM AS
AUTHORITATIVE GUIDES TO THE CONSTRUCTION OF THE NORRIS-LAGUARDIA ACT. 
THEY WERE EXPRESSED BY SENATORS, SOME OF WHOM WERE NOT MEMBERS OF THE
SENATE IN 1932, AND NONE OF WHOM WAS ON THE SENATE JUDICIARY COMMITTEE
WHICH REPORTED THE BILL.  THEY WERE EXPRESSED ELEVEN YEARS AFTER THE
ACT WAS PASSED AND CANNOT BE ACCORDED EVEN THE SAME WEIGHT AS IF MADE
BY THE SAME INDIVIDUALS IN THE COURSE OF THE NORRIS-LAGUARDIA DEBATES
N41.  MOREOVER, THESE OPINIONS WERE GIVEN BY INDIVIDUALS STRIVING TO
WRITE LEGISLATION FROM THE FLOOR OF THE SENATE AND WORKING WITHOUT THE
BENEFIT OF HEARINGS AND COMMITTEE REPORTS ON THE ISSUES CRUCIAL TO US
HERE.  FN42  WE FAIL TO SEE HOW THE REMARKS OF THESE SENATORS IN 1943
CAN SERVE TO CHANGE THE LEGISLATIVE INTENT OF CONGRESS EXPRESSED IN
1932, AND WE ACCORDINGLY ADHERE TO OUR CONCLUSION THAT THE NORRIS
LAGUARDIA ACT DID NOT AFFECT THE JURISDICTION OF THE COURTS TO ISSUE
INJUNCTIONS WHEN SOUGHT BY THE UNITED STATES IN A LABOR DISPUTE WITH
ITS OWN EMPLOYEES. 

IT HAS BEEN SUGGESTED, HOWEVER, THAT CONGRESS, IN PASSING THE WAR
LABOR DISPUTES ACT, EFFECTIVELY RESTRICTED THE THERETOFORE EXISTING
AUTHORITY OF THE COURTS TO ISSUE INJUNCTIONS IN CONNECTION WITH LABOR
DISPUTES IN PLANTS SEIZED BY THE UNITED STATES.  CHIEF RELIANCE IS
PLACED UPON THE REJECTION BY THE SENATE OF SEC. 5 OF THE CONNALLY
SUBSTITUTE BILL.  FN43  BUT IT IS CLEAR THAT NO COMPARABLE ACTION
TRANSPIRED IN THE HOUSE.  INDEED, PROPOSALS IN THE HOUSE AND THE HOUSE
SUBSTITUTE  FN44  FOR S. 796 AUTHORIZED THE USE OF INJUNCTIONS IN
CONNECTION WITH PRIVATE PLANTS NOT YET SEIZED BY THE UNITED STATES. 
THESE ADMITTED INROADS ON THE NORRIS-LAGUARDIA ACT DREW MUCH COMMENT
FN45  ON THE FLOOR OF THE HOUSE, BUT NEVERTHELESS PREVAILED.  SEIZURE
WAS ALSO CONTEMPLATED, AND CRIMINAL SANCTIONS WERE MADE AVAILABLE IN
THIS SITUATION, WITHOUT SPECIFICALLY AUTHORIZING THE USE OF INJUNCTIONS
BY THE UNITED STATES.  THE LATTER ISSUE WAS NOT RAISED, NOT DEBATED AND
NOT COMMENTED UPON IN THE HOUSE.  BUT THE FACT THAT THE HOUSE VERSION
DID NOT PROVIDE FOR THE ISSUANCE OF INJUNCTIONS TO AID IN THE OPERATION
OF SEIZED PLANTS IS NOT THE ISSUE HERE.  RATHER, IT IS WHETHER THE
HOUSE EXPRESSED ANY INTENT TO RESTRICT THE EXISTING AUTHORITY OF THE
COURTS.  WE FIND NOT THE SLIGHTEST SUGGESTION TO THAT EFFECT IN EITHER
THE HOUSE SUBSTITUTE BILL OR THE DEBATES CONCERNING IT.    NOR CAN THE
ACTION OF THE CONFERENCE COMMITTEE BE CONSTRUED AS A CONGRESSIONAL
PROSCRIPTION OF ISSUING INJUNCTIONS TO AID THE UNITED STATES IN DEALING
WITH EMPLOYEES IN SEIZED PLANTS.  NEITHER THE HOUSE NOR SENATE VERSION,
AS THESE BILLS WENT TO CONFERENCE, IN ANY WAY PLACED THIS ISSUE BEFORE
THE CONFEREES.  THE CONFERENCE COMMITTEE SIMPLY STRUCK THE BROADER
PROVISIONS OF THE HOUSE BILL ALLOWING INJUNCTIONS TO ISSUE IN PRIVATE
LABOR DISPUTES AND HAD NO OCCASION TO CONSIDER THE NARROWER QUESTION WE
HAVE BEFORE US NOW.  THE CONFEREES, IN PRODUCING THE ACT IN ITS FINAL
FORM, DID NOTHING WHICH SUGGESTS THAT THE CONGRESS INTENDED TO BAR
INJUNCTIONS SOUGHT BY THE GOVERNMENT TO AID IN THE OPERATION OF SEIZED
PLANTS.  WE THUS FIND NOTHING IN THE LEGISLATIVE BACKGROUND OF THE WAR
LABOR DISPUTES ACT WHICH CONSTITUTES AN AUTHORITATIVE EXPRESSION OF
CONGRESS DIRECTING THE COURTS TO WITHHOLD FROM THE UNITED STATES
INJUNCTIVE RELIEF IN CONNECTION WITH AN ACT DESIGNED TO STRENGTHEN THE
HAND OF THE GOVERNMENT IN SERIOUS LABOR DISPUTES. 

THE DEFENDANTS CONTEND, HOWEVER, THAT WORKERS IN MINES SEIZED BY THE
GOVERNMENT ARE NOT EMPLOYEES OF THE FEDERAL GOVERNMENT; THAT IN
OPERATING THE MINES THUS SEIZED, THE GOVERNMENT IS NOT ENGAGED IN A
SOVEREIGN FUNCTION; AND THAT, CONSEQUENTLY, THE SITUATION IN THIS CASE
DOES NOT FALL WITHIN THE AREA WHICH WE HAVE INDICATED AS LYING OUTSIDE
THE SCOPE OF THE NORRIS-LAGUARDIA ACT.  IT IS CLEAR, HOWEVER, THAT
WORKERS IN THE MINES SEIZED BY THE GOVERNMENT UNDER THE AUTHORITY OF
THE WAR LABOR DISPUTES ACT STAND IN AN ENTIRELY DIFFERENT RELATIONSHIP
TO THE FEDERAL GOVERNMENT WITH RESPECT TO THEIR EMPLOYMENT FROM THAT
WHICH EXISTED BEFORE THE SEIZURE WAS EFFECTED.  THAT CONGRESS INTENDED
SUCH TO BE THE CASE IS APPARENT BOTH FROM THE TERMS OF THE STATUTE AND
FROM THE LEGISLATIVE DELIBERATIONS PRECEDING ITS ENACTMENT.  SECTION 3
OF THE WAR LABOR DISPUTES ACT CALLS FOR THE SEIZURE OF ANY PLANT, MINE,
OR FACILITY WHEN THE PRESIDENT FINDS THAT THE OPERATION THEREOF IS
THREATENED BY STRIKE OR OTHER LABOR DISTURBANCE AND THAT AN
INTERRUPTION IN PRODUCTION WILL UNDULY IMPEDE THE WAR EFFORT.  CONGRESS
INTENDED THAT BY VIRTUE OF GOVERNMENT SEIZURE, A MINE SHOULD BECOME,
FOR PURPOSES OF PRODUCTION AND OPERATION, A GOVERNMENT FACILITY IN AS
COMPLETE A SENSE AS IF THE GOVERNMENT HELD FULL TITLE AND OWNERSHIP. 
FN46 CONSISTENTLY WITH THAT VIEW, CRIMINAL PENALTIES WERE PROVIDED FOR
INTERFERENCE WITH THE OPERATION OF SUCH FACILITIES.  FN47  ALSO
INCLUDED WERE PROCEDURES FOR ADJUSTING WAGES AND CONDITIONS OF
EMPLOYMENT OF THE WORKERS IN SUCH A MANNER AS TO AVOID INTERRUPTIONS IN
PRODUCTION N48.  THE QUESTION WITH WHICH WE ARE CONFRONTED IS NOT
WHETHER THE WORKERS IN MINES UNDER GOVERNMENT SEIZURE ARE "EMPLOYEES"
OF THE FEDERAL GOVERNMENT FOR EVERY PURPOSE WHICH MIGHT BE CONCEIVED,
FN49  BUT WHETHER, FOR THE PURPOSES OF THIS CASE, THE INCIDENTS OF THE
RELATIONSHIP EXISTING BETWEEN THE GOVERNMENT AND THE WORKERS ARE THOSE
OF GOVERNMENTAL EMPLOYER AND EMPLOYEE. 

EXECUTIVE ORDER 9728, IN PURSUANCE OF WHICH THE GOVERNMENT SEIZED
POSSESSION OF THE MINES, AUTHORIZED THE SECRETARY OF THE INTERIOR TO
NEGOTIATE WITH THE REPRESENTATIVES OF THE MINERS, AND THEREAFTER TO
APPLY TO THE NATIONAL WAGE STABILIZATION BOARD FOR APPROPRIATE CHANGES
IN TERMS AND CONDITIONS OF EMPLOYMENT FOR THE PERIOD OF GOVERNMENTAL
OPERATION.  FN50  SUCH NEGOTIATIONS WERE UNDERTAKEN AND RESULTED IN THE
KRUG-LEWIS AGREEMENT.  THAT AGREEMENT CONTAINS MANY BASIC DEPARTURES
FROM THE EARLIER CONTRACT ENTERED INTO BETWEEN THE MINE WORKERS AND THE
PRIVATE OPERATORS ON APRIL 11, 1945, WHICH, EXCEPT AS AMENDED AND
SUPPLEMENTED BY THE KRUG-LEWIS AGREEMENT, WAS CONTINUED IN EFFECT FOR
THE PERIOD OF GOVERNMENT POSSESSION.  AMONG THE TERMS OF THE KRUG-LEWIS
AGREEMENT WERE PROVISIONS FOR A NEW MINE SAFETY CODE.  OPERATING
MANAGERS WERE DIRECTED TO PROVIDE THE MINE EMPLOYEES WITH THE
PROTECTION AND BENEFITS OF WORKMEN'S COMPENSATION AND OCCUPATIONAL
DISEASE LAWS.  PROVISION WAS MADE FOR A WELFARE AND RETIREMENT FUND AND
A MEDICAL AND HOSPITAL FUND.  THE AGREEMENT GRANTED SUBSTANTIAL WAGE
INCREASES AND CONTAINED TERMS RELATING TO VACATIONS AND VACATION PAY. 
INCLUDED WERE PROVISIONS CALLING FOR CHANGES IN EQUITABLE GRIEVANCE
PROCEDURES. 

IT SHOULD BE OBSERVED THAT THE KRUG-LEWIS AGREEMENT WAS ONE SOLELY
BETWEEN THE GOVERNMENT AND THE UNION.  THE PRIVATE MINE OPERATORS WERE
NOT PARTIES TO THE CONTRACT NOR WERE THEY MADE PARTIES TO ANY OF ITS
SUBSEQUENT MODIFICATIONS.  IT SHOULD ALSO BE OBSERVED THAT THE
PROVISIONS RELATE TO MATTERS WHICH NORMALLY CONSTITUTE THE SUBJECT
MATTER OF COLLECTIVE BARGAINING BETWEEN EMPLOYER AND EMPLOYEE.  MANY OF
THE PROVISIONS INCORPORATED INTO THE AGREEMENT FOR THE PERIOD OF
GOVERNMENT OPERATION HAD THERETOFORE BEEN VIGOROUSLY OPPOSED BY THE
PRIVATE OPERATORS AND HAVE NOT SUBSEQUENTLY RECEIVED THEIR APPROVAL. 

IT IS DESCRIPTIVE OF THE SITUATION TO STATE THAT THE GOVERNMENT, IN
ORDER TO MAINTAIN PRODUCTION AND TO ACCOMPLISH THE PURPOSES OF THE
SEIZURE, HAS SUBSTITUTED ITSELF FOR THE PRIVATE EMPLOYER IN DEALING
WITH THOSE MATTERS WHICH FORMERLY WERE THE SUBJECT OF COLLECTIVE
BARGAINING BETWEEN THE UNION AND THE OPERATORS.  THE DEFENDANTS BY
THEIR CONDUCT HAVE GIVEN PRACTICAL RECOGNITION TO THIS FACT.  THE UNION
NEGOTIATED A COLLECTIVE AGREEMENT WITH THE GOVERNMENT AND HAS MADE USE
OF THE PROCEDURES PROVIDED BY THE WAR LABOR DISPUTES ACT TO MODIFY ITS
TERMS AND CONDITIONS.  THE UNION HAS APPARENTLY REGARDED THE KRUG-LEWIS
AGREEMENT AS A SUFFICIENT CONTRACT OF EMPLOYMENT TO SATISFY THE MINE
WORKERS' TRADITIONAL DEMAND OF A CONTRACT AS A CONDITION PRECEDENT TO
THEIR WORK.  THE DEFENDANT LEWIS, IN RESPONDING TO A SUGGESTION OF THE
SECRETARY OF THE INTERIOR THAT CERTAIN UNION DEMANDS SHOULD BE TAKEN TO
THE PRIVATE OPERATORS WITH THE VIEW OF MAKING POSSIBLE THE TERMINATION
OF GOVERNMENT POSSESSION, STATED IN A LETTER DATED NOVEMBER 15, 1946:
"THE GOVERNMENT OF THE UNITED STATES SEIZED THE MINES AND ENTERED INTO
A CONTRACT.  THE MINE WORKERS DO NOT PROPOSE TO DEAL WITH PARTIES WHO
HAVE NO STATUS UNDER THAT CONTRACT."  THE DEFENDANT LEWIS IN THE SAME
LETTER REFERRED TO THE OPERATORS AS "STRANGERS TO THE KRUG-LEWIS
AGREEMENT" AND TO THE MINERS AS THE "400,000 MEN WHO NOW SERVE THE
GOVERNMENT OF THE UNITED STATES IN THE BITUMINOUS COAL MINES." 

THE DEFENDANTS, HOWEVER, POINT TO THE FACT THAT THE PRIVATE MANAGERS
OF THE MINES HAVE BEEN RETAINED BY THE GOVERNMENT IN THE ROLE OF
OPERATING MANAGERS WITH SUBSTANTIALLY THE SAME FUNCTIONS AND
AUTHORITY.  IT IS TRUE THAT THE REGULATIONS FOR THE OPERATION OF THE
MINES ISSUED BY THE COAL MINES ADMINISTRATOR PROVIDE FOR THE RETENTION
OF THE PRIVATE MANAGERS TO ASSIST IN THE REALIZATION OF THE OBJECTS OF
GOVERNMENT SEIZURE AND OPERATION.  FN51  THE REGULATIONS, HOWEVER, ALSO
PROVIDE FOR THE REMOVAL OF SUCH OPERATING MANAGERS AT THE DISCRETION OF
THE COAL MINES ADMINISTRATOR.  FN52 THUS THE GOVERNMENT, THOUGH
UTILIZING THE SERVICES OF THE PRIVATE MANAGERS, HAS NEVERTHELESS
RETAINED ULTIMATE CONTROL. 

THE DEFENDANTS ALSO POINT TO THE REGULATIONS WHICH PROVIDE THAT NONE
OF THE EARNINGS OR LIABILITIES RESULTING FROM THE OPERATION OF THE
MINES, WHILE UNDER SEIZURE, ARE FOR THE ACCOUNT OR AT THE RISK OR
EXPENSE OF THE GOVERNMENT N53; THAT THE COMPANIES CONTINUE TO BE LIABLE
FOR ALL FEDERAL, STATE, AND LOCAL TAXES; FN54  AND THAT THE MINING
COMPANIES REMAIN SUBJECT TO SUIT.  FN55  THE REGULATIONS ON WHICH
DEFENDANTS RELY REPRESENT AN ATTEMPT ON THE PART OF THE COAL MINES
ADMINISTRATOR TO DEFINE THE RESPECTIVE POWERS AND OBLIGATIONS OF THE
GOVERNMENT AND PRIVATE OPERATORS DURING THE PERIOD OF GOVERNMENT
CONTROL.  WE DO NOT AT THIS TIME EXPRESS ANY OPINION AS TO THE VALIDITY
OF THESE REGULATIONS.  IT IS SUFFICIENT TO STATE THAT, IN ANY EVENT,
THE MATTERS TO WHICH THEY REFER HAVE LITTLE PERSUASIVE WEIGHT IN
DETERMINING THE NATURE OF THE RELATION EXISTING BETWEEN THE GOVERNMENT
AND THE MINE WORKERS. 

WE DO NOT FIND CONVINCING THE CONTENTION OF THE DEFENDANTS THAT IN
SEIZING AND OPERATING THE COAL MINES THE GOVERNMENT WAS NOT EXERCISING
A SOVEREIGN FUNCTION AND THAT, HENCE, THIS IS NOT A SITUATION WHICH CAN
BE EXCLUDED FROM THE TERMS OF THE NORRIS-LAGUARDIA ACT.  IN THE
EXECUTIVE ORDER WHICH DIRECTED THE SEIZURE OF THE MINES, THE PRESIDENT
FOUND AND PROCLAIMED THAT "THE COAL PRODUCED BY SUCH MINES IS REQUIRED
FOR THE WAR EFFORT AND IS INDISPENSABLE FOR THE CONTINUED OPERATION OF
THE NATIONAL ECONOMY DURING THE TRANSITION FROM WAR TO PEACE; THAT THE
WAR EFFORT WILL BE UNDULY IMPEDED OR DELAYED BY  ...  INTERRUPTIONS (IN
PRODUCTION); AND THAT THE EXERCISE ...  OF THE POWERS VESTED IN ME IS
NECESSARY TO INSURE THE OPERATION OF SUCH MINES IN THE INTEREST OF THE
WAR EFFORT AND TO PRESERVE THE NATIONAL ECONOMIC STRUCTURE IN THE
PRESENT EMERGENCY  ..."  UNDER THE CONDITIONS FOUND BY THE PRESIDENT TO
EXIST, IT WOULD BE DIFFICULT TO CONCEIVE OF A MORE VITAL AND URGENT
FUNCTION OF THE GOVERNMENT THAN THE SEIZURE AND OPERATION OF THE
BITUMINOUS COAL MINES.  WE HOLD THAT IN A CASE SUCH AS THIS, WHERE THE
GOVERNMENT HAS SEIZED ACTUAL POSSESSION OF THE MINES, OR OTHER
FACILITIES, AND IS OPERATING THEM, AND THE RELATIONSHIP BETWEEN THE
GOVERNMENT AND THE WORKERS IS THAT OF EMPLOYER AND EMPLOYEE, THE NORRIS
LAGUARDIA ACT DOES NOT APPLY. 

                       II. 

ALTHOUGH WE HAVE HELD THAT THE NORRIS-LAGUARDIA ACT DID NOT RENDER
INJUNCTIVE RELIEF BEYOND THE JURISDICTION OF THE DISTRICT COURT, THERE
ARE ALTERNATIVE GROUNDS WHICH SUPPORT THE POWER OF THE DISTRICT COURT
TO PUNISH VIOLATIONS OF ITS ORDERS AS CRIMINAL CONTEMPT. 

ATTENTION MUST BE DIRECTED TO THE SITUATION OBTAINING ON NOVEMBER
18.  THE GOVERNMENT'S COMPLAINT SOUGHT A DECLARATORY JUDGMENT IN
RESPECT TO THE RIGHT OF THE DEFENDANTS TO TERMINATE THE CONTRACT BY
UNILATERAL ACTION.  WHAT AMOUNTED TO A STRIKE CALL, EFFECTIVE AT
MIDNIGHT ON NOVEMBER 20, HAD BEEN ISSUED BY THE DEFENDANT LEWIS AS AN
"OFFICIAL NOTICE."  PENDING A DETERMINATION OF DEFENDANTS' RIGHT TO
TAKE THIS ACTION, THE GOVERNMENT REQUESTED A TEMPORARY RESTRAINING
ORDER AND INJUNCTIVE RELIEF.  THE MEMORANDUM IN SUPPORT OF THE
RESTRAINING ORDER SERIOUSLY URGED THE INAPPLICABILITY OF THE NORRIS
LAGUARDIA ACT TO THE FACTS OF THIS CASE, AND THE POWER OF THE DISTRICT
COURT TO GRANT THE ANCILLARY RELIEF DEPENDED IN GREAT PART UPON THE
RESOLUTION OF THIS JURISDICTIONAL QUESTION.  IN THESE CIRCUMSTANCES,
THE DISTRICT COURT UNQUESTIONABLY HAD THE POWER TO ISSUE A RESTRAINING
ORDER FOR THE PURPOSE OF PRESERVING EXISTING CONDITIONS PENDING A
DECISION UPON ITS OWN JURISDICTION. 

THE TEMPORARY RESTRAINING ORDER WAS SERVED ON NOVEMBER 18.  THIS WAS
ROUGHLY TWO AND ONE-HALF DAYS BEFORE THE STRIKE WAS TO BEGIN.  THE
DEFENDANTS FILED NO MOTION TO VACATE THE ORDER.  RATHER, THEY IGNORED
IT, AND ALLOWED A NATIONWIDE COAL STRIKE TO BECOME AN ACCOMPLISHED
FACT.  THIS COURT HAS USED UNEQUIVOCAL LANGUAGE IN CONDEMNING SUCH
CONDUCT, FN56  AND HAS IN UNITED STATES V. SHIPP, 203 U.S. 563(1906),
PROVIDED PROTECTION FOR JUDICIAL AUTHORITY IN SITUATIONS OF THIS KIND. 
IN THAT CASE THIS COURT HAD ALLOWED AN APPEAL FROM A DENIAL OF A WRIT
OF HABEAS CORPUS BY THE CIRCUIT COURT OF TENNESSEE.  THE PETITION HAD
BEEN FILED BY JOHNSON, THEN CONFINED UNDER A SENTENCE OF DEATH IMPOSED
BY A STATE COURT.  PENDING THE APPEAL, THIS COURT ISSUED AN ORDER
STAYING ALL PROCEEDINGS AGAINST JOHNSON.  HOWEVER, THE PRISONER WAS
TAKEN FROM JAIL AND LYNCHED.  SHIPP, THE SHERIFF HAVING CUSTODY OF
JOHNSON, WAS CHARGED WITH CONSPIRING WITH OTHERS FOR THE PURPOSE OF
LYNCHING JOHNSON, WITH INTENT TO SHOW CONTEMPT FOR THE ORDER OF THIS
COURT.  SHIPP DENIED THE JURISDICTION OF THIS COURT TO PUNISH FOR
CONTEMPT ON THE GROUND THAT THE STAY ORDER WAS ISSUED PENDING AN APPEAL
OVER WHICH THIS COURT HAD NO JURISDICTION BECAUSE THE CONSTITUTIONAL
QUESTIONS ALLEGED WERE FRIVOLOUS AND ONLY A PRETENSE.  THE COURT,
THROUGH MR. JUSTICE HOLMES, REJECTED THE CONTENTION AS TO WANT OF
JURISDICTION, AND IN ORDERING THE CONTEMPT TO BE TRIED, STATED: 

"WE REGARD THIS ARGUMENT AS UNSOUND.  IT HAS BEEN HELD, IT IS TRUE,
THAT ORDERS MADE BY A COURT HAVING NO JURISDICTION TO MAKE THEM MAY BE
DISREGARDED WITHOUT LIABILITY TO PROCESS FOR CONTEMPT.  IN RE SAWYER,
124 U.S. 200; EX PARTE FISK, 113 U.S. 713; EX PARTE ROWLAND, 104 U.S.
604.  BUT EVEN IF THE CIRCUIT COURT HAD NO JURISDICTION TO ENTERTAIN
JOHNSON'S PETITION, AND IF THIS COURT HAD NO JURISDICTION OF THE
APPEAL, THIS COURT, AND THIS COURT ALONE, COULD DECIDE THAT SUCH WAS
THE LAW.  IT AND IT ALONE NECESSARILY HAD JURISDICTION TO DECIDE
WHETHER THE CASE WAS PROPERLY BEFORE IT. ON THAT QUESTION, AT LEAST, IT
WAS ITS DUTY TO PERMIT ARGUMENT AND TO TAKE THE TIME REQUIRED FOR SUCH
CONSIDERATION AS IT MIGHT NEED.  SEE MANSFIELD, COLDWATER & LAKE
MICHIGAN RY. CO. V. SWAN, 111 U.S. 379, 387.  UNTIL ITS JUDGMENT
DECLINING JURISDICTION SHOULD BE ANNOUNCED, IT HAD AUTHORITY FROM THE
NECESSITY OF THE CASE TO MAKE ORDERS TO PRESERVE THE EXISTING
CONDITIONS AND THE SUBJECT OF THE PETITION, JUST AS THE STATE COURT WAS
BOUND TO REFRAIN FROM FURTHER PROCEEDINGS UNTIL THE SAME TIME.  REV.
STAT. SEC. 766; ACT OF MARCH 3, 1893, C. 226, 27 STAT. 751.  THE FACT
THAT THE PETITIONER WAS ENTITLED TO ARGUE HIS CASE SHOWS WHAT NEEDS NO
PROOF, THAT THE LAW CONTEMPLATES THE POSSIBILITY OF A DECISION EITHER
WAY, AND THEREFORE MUST PROVIDE FOR IT."  203 U.S. 573.    IF THIS
COURT DID NOT HAVE JURISDICTION TO HEAR THE APPEAL IN THE SHIPP CASE,
ITS ORDER WOULD HAVE HAD TO BE VACATED.  BUT IT WAS RULED THAT ONLY THE
COURT ITSELF COULD DETERMINE THAT QUESTION OF LAW.  UNTIL IT WAS FOUND
THAT THE COURT HAD NO JURISDICTION, "...  IT HAD AUTHORITY FROM THE
NECESSITY OF THE CASE TO MAKE ORDERS TO PRESERVE THE EXISTING
CONDITIONS AND THE SUBJECT OF THE PETITION  ..." 

APPLICATION OF THE RULE LAID DOWN IN UNITED STATES V. SHIPP, SUPRA,
IS APPARENT IN CARTER V. UNITED STATES, 135 F.2D 858(1943).  THERE A
DISTRICT COURT, AFTER MAKING THE FINDINGS REQUIRED BY THE NORRIS
LAGUARDIA ACT, ISSUED A TEMPORARY RESTRAINING ORDER.  AN INJUNCTION
FOLLOWED AFTER A HEARING IN WHICH THE COURT AFFIRMATIVELY DECIDED THAT
IT HAD JURISDICTION AND OVERRULED THE DEFENDANTS' OBJECTIONS BASED UPON
THE ABSENCE OF DIVERSITY AND THE ABSENCE OF A CASE ARISING UNDER A
STATUTE OF THE UNITED STATES.  THESE OBJECTIONS OF THE DEFENDANTS
PREVAILED ON APPEAL, AND THE INJUNCTION WAS SET ASIDE.  BROWN V.
COUMANIS, 135 F.2D 163(1943).  BUT IN CARTER, A COMPANION CASE,
VIOLATIONS OF THE TEMPORARY RESTRAINING ORDER WERE HELD PUNISHABLE AS
CRIMINAL CONTEMPT.  PENDING A DECISION ON A DOUBTFUL QUESTION OF
JURISDICTION, THE DISTRICT COURT WAS HELD TO HAVE POWER TO MAINTAIN THE
STATUS QUO AND PUNISH VIOLATIONS AS CONTEMPT.  FN57 

IN THE CASE BEFORE US, THE DISTRICT COURT HAD THE POWER TO PRESERVE
EXISTING CONDITIONS WHILE IT WAS DETERMINING ITS OWN AUTHORITY TO GRANT
INJUNCTIVE RELIEF.  THE DEFENDANTS, IN MAKING THEIR PRIVATE
DETERMINATION OF THE LAW, ACTED AT THEIR PERIL.  THEIR DISOBEDIENCE IS
PUNISHABLE AS CRIMINAL CONTEMPT. 

ALTHOUGH A DIFFERENT RESULT WOULD FOLLOW WERE THE QUESTION OF
JURISDICTION FRIVOLOUS AND NOT SUBSTANTIAL, SUCH CONTENTION WOULD BE
IDLE HERE.  THE APPLICABILITY OF THE NORRIS-LAGUARDIA ACT TO THE UNITED
STATES IN A CASE SUCH AS THIS HAD NOT PREVIOUSLY RECEIVED JUDICIAL
CONSIDERATION, AND BOTH THE LANGUAGE OF THE ACT AND ITS LEGISLATIVE
HISTORY INDICATED THE SUBSTANTIAL NATURE OF THE PROBLEM WITH WHICH THE
DISTRICT COURT WAS FACED. 

PROCEEDING FURTHER, WE FIND IMPRESSIVE AUTHORITY FOR THE PROPOSITION
THAT AN ORDER ISSUED BY A COURT WITH JURISDICTION OVER THE SUBJECT
MATTER AND PERSON MUST BE OBEYED BY THE PARTIES UNTIL IT IS REVERSED BY
ORDERLY AND PROPER PROCEEDINGS.  FN58  THIS IS TRUE WITHOUT REGARD EVEN
FOR THE CONSTITUTIONALITY OF THE ACT UNDER WHICH THE ORDER IS ISSUED. 
IN HOWAT V. KANSAS, 258 U.S. 181, 189-90(1922) THIS COURT SAID: 

"AN INJUNCTION DULY ISSUING OUT OF A COURT OF GENERAL JURISDICTION
WITH EQUITY POWERS UPON PLEADINGS PROPERLY INVOKING ITS ACTION, AND
SERVED UPON PERSONS MADE PARTIES THEREIN AND WITHIN THE JURISDICTION,
MUST BE OBEYED BY THEM HOWEVER ERRONEOUS THE ACTION OF THE COURT MAY
BE, EVEN IF THE ERROR BE IN THE ASSUMPTION OF THE VALIDITY OF A SEEMING
BUT VOID LAW GOING TO THE MERITS OF THE CASE.  IT IS FOR THE COURT OF
FIRST INSTANCE TO DETERMINE THE QUESTION OF THE VALIDITY OF THE LAW,
AND UNTIL ITS DECISION IS REVERSED FOR ERROR BY ORDERLY REVIEW, EITHER
BY ITSELF OR BY A HIGHER COURT, ITS ORDERS BASED ON ITS DECISION ARE TO
BE RESPECTED, AND DISOBEDIENCE OF THEM IS CONTEMPT OF ITS LAWFUL
AUTHORITY, TO BE PUNISHED."  FN59 

VIOLATIONS OF AN ORDER ARE PUNISHABLE AS CRIMINAL CONTEMPT EVEN
THOUGH THE ORDER IS SET ASIDE ON APPEAL, WORDEN V. SEARLS, 121 U.S.
14(1887),  FN60  OR THOUGH THE BASIC ACTION HAS BECOME MOOT, GOMPERS V.
BUCKS STOVE & RANGE CO., 221 U.S. 418(1911). 

WE INSIST UPON THE SAME DUTY OF OBEDIENCE WHERE, AS HERE, THE SUBJECT
MATTER OF THE SUIT, AS WELL AS THE PARTIES, WAS PROPERLY BEFORE THE
COURT; WHERE THE ELEMENTS OF FEDERAL JURISDICTION WERE CLEARLY SHOWN;
AND WHERE THE AUTHORITY OF THE COURT OF FIRST INSTANCE TO ISSUE AN
ORDER ANCILLARY TO THE MAIN SUIT DEPENDED UPON A STATUTE, THE SCOPE AND
APPLICABILITY OF WHICH WERE SUBJECT TO SUBSTANTIAL DOUBT.  THE DISTRICT
COURT ON NOVEMBER 29 AFFIRMATIVELY DECIDED THAT THE NORRIS-LAGUARDIA
ACT WAS OF NO FORCE IN THIS CASE AND THAT INJUNCTIVE RELIEF WAS
THEREFORE AUTHORIZED.  ORDERS OUTSTANDING OR ISSUED AFTER THAT DATE
WERE TO BE OBEYED UNTIL THEY EXPIRED OR WERE SET ASIDE BY APPROPRIATE
PROCEEDINGS, APPELLATE OR OTHERWISE.  CONVICTIONS FOR CRIMINAL CONTEMPT
INTERVENING BEFORE THAT TIME MAY STAND. 

IT DOES NOT FOLLOW, OF COURSE, THAT SIMPLY BECAUSE A DEFENDANT MAY BE
PUNISHED FOR CRIMINAL CONTEMPT FOR DISOBEDIENCE OF AN ORDER LATER SET
ASIDE ON APPEAL, THAT THE PLAINTIFF IN THE ACTION MAY PROFIT BY WAY OF
A FINE IMPOSED IN A SIMULTANEOUS PROCEEDING FOR CIVIL CONTEMPT BASED
UPON A VIOLATION OF THE SAME ORDER.  THE RIGHT TO REMEDIAL RELIEF FALLS
WITH AN INJUNCTION WHICH EVENTS PROVE WAS ERRONEOUSLY ISSUED, WORDEN V.
SEARLS, SUPRA, AT 25, 26; SALVAGE PROCESS CORP. V. ACME TANK CLEANING
PROCESS CORP., 86 F.2D 727(1936); S. ANARGYROS V. ANARGYROS & CO., 191
F. 208(1911); FN61  AND A FORTIORI WHEN THE INJUNCTION OR RESTRAINING
ORDER WAS BEYOND THE JURISDICTION OF THE COURT.  NOR DOES THE REASON
UNDERLYING UNITED STATES V. SHIPP, SUPRA, COMPEL A DIFFERENT RESULT. 
IF THE NORRIS-LAGUARDIA ACT WERE APPLICABLE IN THIS CASE, THE
CONVICTION FOR CIVIL CONTEMPT WOULD BE REVERSED IN ITS ENTIRETY. 

ASSUMING, THEN, THAT THE NORRIS-LAGUARDIA ACT APPLIED TO THIS CASE
AND PROHIBITED INJUNCTIVE RELIEF AT THE REQUEST OF THE UNITED STATES,
WE WOULD SET ASIDE THE PRELIMINARY INJUNCTION OF DECEMBER 4 AND THE
JUDGMENT FOR CIVIL CONTEMPT; BUT WE WOULD, SUBJECT TO ANY INFIRMITIES
IN THE CONTEMPT PROCEEDINGS OR IN THE FINES IMPOSED, AFFIRM THE
JUDGMENTS FOR CRIMINAL CONTEMPT AS VALIDLY PUNISHING VIOLATIONS OF AN
ORDER THEN OUTSTANDING AND UNREVERSED. 

                   III. 

THE DEFENDANTS HAVE PRESSED UPON US THE PROCEDURAL ASPECTS OF THEIR
TRIAL AND ALLEGE ERROR SO PREJUDICIAL AS TO REQUIRE REVERSAL OF THE
JUDGMENTS FOR CIVIL AND CRIMINAL CONTEMPT.  BUT WE HAVE NOT BEEN
PERSUADED. 

THE QUESTION IS WHETHER THE PROCEEDINGS WILL SUPPORT JUDGMENTS FOR
BOTH CRIMINAL AND CIVIL CONTEMPT; AND OUR ATTENTION IS DIRECTED TO RULE
42(B) OF THE RULES OF CRIMINAL PROCEDURE.  FN62 THE RULE REQUIRES
CRIMINAL CONTEMPT TO BE PROSECUTED ON NOTICE STATING THE ESSENTIAL
FACTS CONSTITUTING THE CONTEMPT CHARGED.  IN THIS RESPECT, THERE WAS
COMPLIANCE WITH THE RULE HERE.  NOTICE WAS GIVEN BY A RULE TO SHOW
CAUSE SERVED UPON DEFENDANTS TOGETHER WITH THE GOVERNMENT'S PETITION
AND SUPPORTING AFFIDAVIT.  THE PLEADINGS RESTED ONLY UPON INFORMATION
AND BELIEF, BUT RULE 42(B) WAS NOT DESIGNED TO CAST DOUBT UPON THE
PROPRIETY OF INSTITUTING CRIMINAL CONTEMPT PROCEEDINGS IN THIS MANNER. 
FN63  THE PETITION ITSELF CHARGED A VIOLATION OF THE OUTSTANDING
RESTRAINING ORDER, AND THE AFFIDAVIT ALLEGED IN DETAIL A FAILURE TO
WITHDRAW THE NOTICE OF NOVEMBER 15, THE CESSATION OF WORK IN THE MINES,
AND THE CONSEQUENT INTERFERENCE WITH GOVERNMENTAL FUNCTIONS AND THE
JURISDICTION OF THE COURT.  THE DEFENDANTS WERE FAIRLY AND COMPLETELY
APPRISED OF THE EVENTS AND CONDUCT CONSTITUTING THE CONTEMPT CHARGED. 

HOWEVER, RULE 42(B) REQUIRES THAT THE NOTICE ISSUING TO THE
DEFENDANTS DESCRIBE THE CRIMINAL CONTEMPT CHARGED AS SUCH.  THE
DEFENDANTS URGE A FAILURE TO COMPLY WITH THIS RULE.  THE PETITION
ALLEGED A WILLFUL VIOLATION OF THE RESTRAINING ORDER, AND BOTH THE
PETITION AND THE RULE TO SHOW CAUSE INQUIRED AS TO WHY THE DEFENDANTS
SHOULD NOT BE "PUNISHED AS AND FOR A CONTEMPT" OF COURT.  BUT NOWHERE
WAS THE CONTEMPT DESCRIBED AS CRIMINAL AS REQUIRED BY THE RULE. 

NEVERTHELESS, THE DEFENDANTS WERE QUITE AWARE THAT A CRIMINAL
CONTEMPT WAS CHARGED.  FN64  IN THEIR MOTION TO DISCHARGE AND VACATE
THE RULE TO SHOW CAUSE, THE CONTEMPT CHARGED WAS REFERRED TO AS
CRIMINAL.  FN65  AND IN ARGUMENT ON THE MOTION THE DEFENDANTS STATED
AND WERE EXPRESSLY INFORMED THAT A CRIMINAL CONTEMPT WAS TO BE TRIED. 
YET IT IS NOW URGED THAT THE OMISSION OF THE WORDS "CRIMINAL CONTEMPT"
FROM THE PETITION AND RULE TO SHOW CAUSE WAS PREJUDICIAL ERROR.  RULE
42(B) REQUIRES NO SUCH RIGOROUS APPLICATION, FOR IT WAS DESIGNED TO
INSURE A REALIZATION BY CONTEMNORS THAT A PROSECUTION FOR CRIMINAL
CONTEMPT IS CONTEMPLATED.  FN66  ITS PURPOSE WAS SUFFICIENTLY FULFILLED
HERE, FOR THIS FAILURE TO OBSERVE THE RULE IN ALL RESPECTS HAS NOT
RESULTED IN SUBSTANTIAL PREJUDICE TO THE DEFENDANTS. 

NOT ONLY WERE THE DEFENDANTS FULLY INFORMED THAT A CRIMINAL CONTEMPT
WAS CHARGED, BUT WE THINK THEY ENJOYED DURING THE TRIAL ITSELF ALL THE
ENHANCED PROTECTIONS ACCORDED DEFENDANTS IN CRIMINAL CONTEMPT
PROCEEDINGS N67.  WE NEED NOT TREAT THESE AT LENGTH, FOR DEFENDANTS, IN
THIS RESPECT, URGE ONLY THEIR RIGHT TO A JURY TRIAL AS PROVIDED IN SEC.
11 OF THE NORRIS-LAGUARDIA ACT.  BUT SEC. 11 IS NOT OPERATIVE HERE, FOR
IT APPLIES ONLY TO CASES "ARISING UNDER THIS ACT,"  FN68  AND WE HAVE
ALREADY HELD THAT THE RESTRICTION UPON INJUNCTIONS IMPOSED BY THE ACT
DO NOT GOVERN THIS CASE.  FN69  THE DEFENDANTS, WE THINK, WERE PROPERLY
TRIED BY THE COURT WITHOUT A JURY. 

IF THE DEFENDANTS WERE THUS ACCORDED ALL THE RIGHTS AND PRIVILEGES
OWING TO DEFENDANTS IN CRIMINAL CONTEMPT CASES, THEY ARE PUT IN NO
BETTER POSITION TO COMPLAIN BECAUSE THEIR TRIAL INCLUDED A PROCEEDING
IN CIVIL CONTEMPT AND WAS CARRIED ON IN THE MAIN EQUITY SUIT.  COMMON
SENSE WOULD RECOGNIZE THAT CONDUCT CAN AMOUNT TO BOTH CIVIL AND
CRIMINAL CONTEMPT.  THE SAME ACTS MAY JUSTIFY A COURT IN RESORTING TO
COERCIVE AND TO PUNITIVE MEASURES.  FN70  DISPOSING OF BOTH ASPECTS OF
THE CONTEMPT IN A SINGLE PROCEEDING WOULD SEEM AT LEAST A CONVENIENT
PRACTICE.  LITIGATION IN PATENT CASES HAS FREQUENTLY FOLLOWED THIS
COURSE,  FN71  AND THE SAME METHOD CAN BE NOTED IN OTHER SITUATIONS IN
BOTH FEDERAL AND STATE COURTS.  FN72  RULE 42(B), WHILE DEMANDING FAIR
NOTICE AND RECOGNITION OF THE CRIMINAL ASPECTS OF THE CASE, CONTAINS
NOTHING PRECLUDING A SIMULTANEOUS DISPOSITION OF THE REMEDIAL ASPECTS
OF THE CONTEMPT TRIED.  EVEN IF IT BE THE BETTER PRACTICE TO TRY
CRIMINAL CONTEMPT ALONE AND SO AVOID OBSCURING THE DEFENDANT'S
PRIVILEGES IN ANY MANNER, A MINGLING OF CIVIL AND CRIMINAL CONTEMPT
PROCEEDINGS MUST NEVERTHELESS BE SHOWN TO RESULT IN SUBSTANTIAL
PREJUDICE BEFORE A REVERSAL WILL BE REQUIRED.  FN73  THAT THE CONTEMPT
PROCEEDING CARRIED THE NUMBER AND NAME OF THE EQUITY SUIT  FN74  DOES
NOT ALTER THIS CONCLUSION, ESPECIALLY WHERE, AS HERE, THE UNITED STATES
WOULD HAVE BEEN THE COMPLAINING PARTY IN WHATEVER SUIT THE CONTEMPT WAS
TRIED.  IN SO FAR AS THE CRIMINAL NATURE OF THE DOUBLE PROCEEDING
DOMINATES N75 AND IN SO FAR AS THE DEFENDANTS' RIGHTS IN THE CRIMINAL
TRIAL ARE NOT DILUTED BY THE MIXING OF CIVIL WITH CRIMINAL CONTEMPT, TO
THAT EXTENT IS PREJUDICE AVOIDED.  FN76  HERE, AS WE HAVE INDICATED,
ALL RIGHTS AND PRIVILEGES OF THE DEFENDANTS WERE FULLY RESPECTED, AND
THERE HAS BEEN NO SHOWING OF SUBSTANTIAL PREJUDICE FLOWING FROM THE
FORMAL PECULIARITIES OF DEFENDANTS' TRIAL. 

LASTLY, THE DEFENDANTS HAVE ASSIGNED AS ERROR AND ARGUED IN THEIR
BRIEF THAT THE DISTRICT COURT IMPROPERLY EXTENDED THE RESTRAINING ORDER
ON NOVEMBER 27 FOR ANOTHER TEN DAYS.  THERE WAS THEN IN PROGRESS
ARGUMENT ON DEFENDANTS' MOTION TO VACATE THE RULE TO SHOW CAUSE, A PART
OF THE CONTEMPT PROCEEDINGS.  IN THE CIRCUMSTANCES OF THIS CASE, WE
THINK THERE WAS GOOD CAUSE SHOWN FOR EXTENDING THE ORDER.  FN77

                             IV. 

APART FROM THEIR CONTENTIONS CONCERNING THE FORMAL ASPECTS OF THE
PROCEEDINGS BELOW, DEFENDANTS INSIST UPON THE INABILITY OF THE UNITED
STATES TO SECURE RELIEF BY WAY OF CIVIL CONTEMPT IN THIS CASE, AND
WOULD LIMIT THE RIGHT TO PROCEED BY CIVIL CONTEMPT TO SITUATIONS IN
WHICH THE UNITED STATES IS ENFORCING A STATUTE EXPRESSLY ALLOWING
RESORT TO THE COURTS FOR ENFORCEMENT OF STATUTORY ORDERS.  MCCRONE V.
UNITED STATES, 307 U.S. 61(1939), HOWEVER, RESTS UPON NO SUCH NARROW
GROUND, FOR THE COURT THERE SAID THAT "ARTICLE 3, SEC. 2, OF THE
CONSTITUTION, EXPRESSLY CONTEMPLATES THE UNITED STATES AS A PARTY TO
CIVIL PROCEEDINGS BY EXTENDING THE JURISDICTION OF THE FEDERAL
JUDICIARY 'TO CONTROVERSIES TO WHICH THE UNITED STATES SHALL BE A
PARTY.'"  ID. AT 63.  THE UNITED STATES WAS FULLY ENTITLED TO BRING THE
PRESENT SUIT AND TO BENEFIT FROM ORDERS ENTERED IN ITS BEHALF.  FN78
WE WILL NOT REDUCE THE PRACTICAL VALUE OF THE RELIEF GRANTED BY
LIMITING THE UNITED STATES, WHEN THE ORDERS HAVE BEEN DISOBEYED, TO A
PROCEEDING IN CRIMINAL CONTEMPT, AND BY DENYING TO THE GOVERNMENT THE
CIVIL REMEDIES ENJOYED BY OTHER LITIGANTS, INCLUDING THE OPPORTUNITY TO
DEMONSTRATE THAT DISOBEDIENCE HAS OCCASIONED LOSS.  FN79

                              V. 

IT IS URGED THAT, IN ANY EVENT, THE AMOUNT OF THE FINE OF $10,000
IMPOSED ON THE DEFENDANT LEWIS AND OF THE FINE OF $3,500,000 IMPOSED ON
THE DEFENDANT UNION WERE ARBITRARY, EXCESSIVE, AND IN NO WAY RELATED TO
THE EVIDENCE ADDUCED AT THE HEARING. 

SENTENCES FOR CRIMINAL CONTEMPT ARE PUNITIVE IN THEIR NATURE AND ARE
IMPOSED FOR THE PURPOSE OF VINDICATING THE AUTHORITY OF THE COURT. 
GOMPERS V. BUCKS STOVE & RANGE CO., SUPRA, AT 441.  THE INTERESTS OF
ORDERLY GOVERNMENT DEMAND THAT RESPECT AND COMPLIANCE BE GIVEN TO
ORDERS ISSUED BY COURTS POSSESSED OF JURISDICTION OF PERSONS AND
SUBJECT MATTER.  ONE WHO DEFIES THE PUBLIC AUTHORITY AND WILLFULLY
REFUSES HIS OBEDIENCE, DOES SO AT HIS PERIL.  IN IMPOSING A FINE FOR
CRIMINAL CONTEMPT, THE TRIAL JUDGE MAY PROPERLY TAKE INTO CONSIDERATION
THE EXTENT OF THE WILLFUL AND DELIBERATE DEFIANCE OF THE COURT'S ORDER,
THE SERIOUSNESS OF THE CONSEQUENCES OF THE CONTUMACIOUS BEHAVIOR, THE
NECESSITY OF EFFECTIVELY TERMINATING THE DEFENDANT'S DEFIANCE AS
REQUIRED BY THE PUBLIC INTEREST, AND THE IMPORTANCE OF DETERRING SUCH
ACTS IN THE FUTURE.  BECAUSE OF THE NATURE OF THESE STANDARDS, GREAT
RELIANCE MUST BE PLACED UPON THE DISCRETION OF THE TRIAL JUDGE.    THE
TRIAL COURT PROPERLY FOUND THE DEFENDANTS GUILTY OF CRIMINAL CONTEMPT. 
SUCH CONTEMPT HAD CONTINUED FOR 15 DAYS FROM THE ISSUANCE OF THE
RESTRAINING ORDER UNTIL THE FINDING OF GUILTY.  ITS WILLFULNESS HAD NOT
BEEN QUALIFIED BY ANY CONCURRENT ATTEMPT ON DEFENDANTS' PART TO
CHALLENGE THE ORDER BY MOTION TO VACATE OR OTHER APPROPRIATE
PROCEDURES.  IMMEDIATELY FOLLOWING THE FINDING OF GUILTY, DEFENDANT
LEWIS STATED OPENLY IN COURT THAT DEFENDANTS WOULD ADHERE TO THEIR
POLICY OF DEFIANCE.  THIS POLICY, AS THE EVIDENCE SHOWED, WAS THE GERM
CENTER OF AN ECONOMIC PARALYSIS WHICH WAS RAPIDLY EXTENDING ITSELF FROM
THE BITUMINOUS COAL MINES INTO PRACTICALLY EVERY OTHER MAJOR INDUSTRY
OF THE UNITED STATES.  IT WAS AN ATTEMPT TO REPUDIATE AND OVERRIDE THE
INSTRUMENT OF LAWFUL GOVERNMENT IN THE VERY SITUATION IN WHICH
GOVERNMENTAL ACTION WAS INDISPENSABLE. 

THE TRIAL COURT ALSO PROPERLY FOUND THE DEFENDANTS GUILTY OF CIVIL
CONTEMPT.  JUDICIAL SANCTIONS IN CIVIL CONTEMPT PROCEEDINGS MAY, IN A
PROPER CASE, BE EMPLOYED FOR EITHER OR BOTH OF TWO PURPOSES:  TO COERCE
THE DEFENDANT INTO COMPLIANCE WITH THE COURT'S ORDER, AND TO COMPENSATE
THE COMPLAINANT FOR LOSSES SUSTAINED.  GOMPERS V. BUCKS STOVE & RANGE
CO., SUPRA, AT 448, 449.  WHERE COMPENSATION IS INTENDED, A FINE IS
IMPOSED, PAYABLE TO THE COMPLAINANT.  SUCH FINE MUST OF COURSE BE BASED
UPON EVIDENCE OF COMPLAINANT'S ACTUAL LOSS,  FN80  AND HIS RIGHT, AS A
CIVIL LITIGANT, TO THE COMPENSATORY FINE IS DEPENDENT UPON THE OUTCOME
OF THE BASIC CONTROVERSY.  FN81 

BUT WHERE THE PURPOSE IS TO MAKE THE DEFENDANT COMPLY, THE COURT'S
DISCRETION IS OTHERWISE EXERCISED.  IT MUST THEN CONSIDER THE CHARACTER
AND MAGNITUDE OF THE HARM THREATENED BY CONTINUED CONTUMACY, AND THE
PROBABLE EFFECTIVENESS OF ANY SUGGESTED SANCTION IN BRINGING ABOUT THE
RESULT DESIRED.  FN82 

IT IS A COROLLARY OF THE ABOVE PRINCIPLES THAT A COURT WHICH HAS
RETURNED A CONVICTION FOR CONTEMPT MUST, IN FIXING THE AMOUNT OF A FINE
TO BE IMPOSED AS A PUNISHMENT OR AS A MEANS OF SECURING FUTURE
COMPLIANCE, CONSIDER THE AMOUNT OF DEFENDANT'S FINANCIAL RESOURCES AND
THE CONSEQUENT SERIOUSNESS OF THE BURDEN TO THAT PARTICULAR DEFENDANT. 

IN THE LIGHT OF THESE PRINCIPLES, WE THINK THE RECORD CLEARLY
WARRANTS A FINE OF $10,000 AGAINST DEFENDANT LEWIS FOR CRIMINAL
CONTEMPT.  A MAJORITY OF THE COURT, HOWEVER, DOES NOT THINK THAT IT
WARRANTS THE UNCONDITIONAL IMPOSITION OF A FINE OF $3,500,000 AGAINST
THE DEFENDANT UNION.  A MAJORITY FEELS THAT, IF THE COURT BELOW HAD
ASSESSED A FINE OF $700,000 AGAINST THE DEFENDANT UNION, THIS, UNDER
THE CIRCUMSTANCES, WOULD NOT BE EXCESSIVE AS PUNISHMENT FOR THE
CRIMINAL CONTEMPT THERETOFORE COMMITTED; AND FEELS THAT, IN ORDER TO
COERCE THE DEFENDANT UNION INTO A FUTURE COMPLIANCE WITH THE COURT'S
ORDER, IT WOULD HAVE BEEN EFFECTIVE TO MAKE THE OTHER $2,800,000 OF THE
FINE CONDITIONAL ON THE DEFENDANT'S FAILURE TO PURGE ITSELF WITHIN A
REASONABLE TIME.  ACCORDINGLY, THE JUDGMENT AGAINST THE DEFENDANT UNION
IS HELD TO BE EXCESSIVE.  IT WILL BE MODIFIED SO AS TO REQUIRE THE
DEFENDANT UNION TO PAY A FINE OF $700,000, AND FURTHER, TO PAY AN
ADDITIONAL FINE OF $2,800,000 UNLESS THE DEFENDANT UNION, WITHIN FIVE
DAYS AFTER THE ISSUANCE OF THE MANDATE HEREIN, SHOWS THAT IT HAS FULLY
COMPLIED WITH THE TEMPORARY RESTRAINING ORDER ISSUED NOVEMBER 18, 1946,
AND THE PRELIMINARY INJUNCTION ISSUED DECEMBER 4, 1946.  THE DEFENDANT
UNION CAN EFFECT FULL COMPLIANCE ONLY BY WITHDRAWING UNCONDITIONALLY
THE NOTICE GIVEN BY IT, SIGNED JOHN L. LEWIS, PRESIDENT, ON NOVEMBER
15, 1946, TO J. A. KRUG, SECRETARY OF THE INTERIOR, TERMINATING THE
KRUG-LEWIS AGREEMENT AS OF TWELVE O'CLOCK MIDNIGHT, WEDNESDAY, NOVEMBER
20, 1946, AND BY NOTIFYING, AT THE SAME TIME, ITS MEMBERS OF SUCH
WITHDRAWAL IN SUBSTANTIALLY THE SAME MANNER AS THE MEMBERS OF THE
DEFENDANT UNION WERE NOTIFIED OF THE NOTICE TO THE SECRETARY OF THE
INTERIOR ABOVE-MENTIONED; AND BY WITHDRAWING AND SIMILARLY INSTRUCTING
THE MEMBERS OF THE DEFENDANT UNION OF THE WITHDRAWAL OF ANY OTHER
NOTICE TO THE EFFECT THAT THE KRUG-LEWIS AGREEMENT IS NOT IN FULL FORCE
AND EFFECT UNTIL THE FINAL DETERMINATION OF THE BASIC ISSUES ARISING
UNDER THE SAID AGREEMENT. 

WE WELL REALIZE THE SERIOUS PROPORTIONS OF THE FINES HERE IMPOSED
UPON THE DEFENDANT UNION.  BUT A MAJORITY FEELS THAT THE COURSE TAKEN
BY THE UNION CARRIED WITH IT SUCH A SERIOUS THREAT TO ORDERLY
CONSTITUTIONAL GOVERNMENT, AND TO THE ECONOMIC AND SOCIAL WELFARE OF
THE NATION, THAT A FINE OF SUBSTANTIAL SIZE IS REQUIRED IN ORDER TO
EMPHASIZE THE GRAVITY OF THE OFFENSE OF WHICH THE UNION WAS FOUND
GUILTY.  THE DEFENDANT LEWIS, IT IS TRUE, WAS THE AGGRESSIVE LEADER IN
THE STUDIED AND DELIBERATE NON-COMPLIANCE WITH THE ORDER OF THE
DISTRICT COURT; BUT, AS THE RECORD SHOWS, HE STATED IN OPEN COURT PRIOR
TO IMPOSITION OF THE FINES THAT "THE REPRESENTATIVES OF THE UNITED MINE
WORKERS DETERMINED THAT THE SO-CALLED KRUG-LEWIS AGREEMENT WAS
BREACHED," AND THAT IT WAS THE UNION'S "REPRESENTATIVES" WHO "NOTIFIED
THE SECRETARY OF THE INTERIOR THAT THE CONTRACT WAS TERMINATED AS OF
NOVEMBER 20TH."  AND CERTAINLY IT WAS THE MEMBERS OF THE DEFENDANT
UNION WHO EXECUTED THE NATIONWIDE STRIKE.  LOYALTY IN RESPONDING TO THE
ORDERS OF THEIR LEADER MAY, IN SOME MINDS, MINIMIZE THE GRAVITY OF THE
MINERS' CONDUCT; BUT WE CANNOT IGNORE THE EFFECT OF THEIR ACTION UPON
THE RIGHTS OF OTHER CITIZENS, OR THE EFFECT OF THEIR ACTION UPON OUR
SYSTEM OF GOVERNMENT.  THE GAINS, SOCIAL AND ECONOMIC, WHICH THE MINERS
AND OTHER CITIZENS HAVE REALIZED IN THE PAST ARE ULTIMATELY DUE TO THE
FACT THAT THEY ENJOY THE RIGHTS OF FREE MEN UNDER OUR SYSTEM OF
GOVERNMENT.  UPON THE MAINTENANCE OF THAT SYSTEM DEPENDS ALL FUTURE
PROGRESS TO WHICH THEY MAY JUSTLY ASPIRE.  IN OUR COMPLEX SOCIETY,
THERE IS A GREAT VARIETY OF LIMITED LOYALTIES, BUT THE OVERRIDING
LOYALTY OF ALL IS TO OUR COUNTRY AND TO THE INSTITUTIONS UNDER WHICH A
PARTICULAR INTEREST MAY BE PURSUED. 

WE ARE AWARE THAT THE DEFENDANTS MAY HAVE SINCERELY BELIEVED THAT THE
RESTRAINING ORDER WAS INEFFECTIVE AND WOULD FINALLY BE VACATED. 
HOWEVER, THE GOVERNMENT HAD SOUGHT A DECLARATION OF ITS CONTRACTUAL
RIGHTS UNDER THE KRUG-LEWIS AGREEMENT, EFFECTIVE SINCE MAY 29, 1946,
AND SOLEMNLY SUBSCRIBED BY THE GOVERNMENT AND THE DEFENDANT UNION.  THE
RESTRAINING ORDER SOUGHT TO PRESERVE CONDITIONS UNTIL THE CAUSE COULD
BE DETERMINED, AND OBEDIENCE BY THE DEFENDANTS WOULD HAVE SECURED THIS
RESULT.  THEY HAD FULL OPPORTUNITY TO COMPLY WITH THE ORDER OF THE
DISTRICT COURT, BUT THEY DELIBERATELY REFUSED OBEDIENCE AND DETERMINED
FOR THEMSELVES THE VALIDITY OF THE ORDER.  WHEN THE RULE TO SHOW CAUSE
WAS ISSUED, PROVISION WAS MADE FOR A HEARING AS TO WHETHER OR NOT THE
ALLEGED CONTEMPT WAS SUFFICIENTLY PURGED.  AT THAT HEARING THE
DEFENDANTS STATED TO THE COURT THAT THEIR POSITION REMAINED THEN IN THE
STATUS WHICH EXISTED AT THE TIME OF THE ISSUANCE OF THE RESTRAINING
ORDER.  THEIR CONDUCT SHOWED A TOTAL LACK OF RESPECT FOR THE JUDICIAL
PROCESS.  PUNISHMENT IN THIS CASE IS FOR THAT WHICH THE DEFENDANTS HAD
DONE PRIOR TO IMPOSITION OF THE JUDGMENT IN THE DISTRICT COURT, COUPLED
WITH A COERCIVE IMPOSITION UPON THE DEFENDANT UNION TO COMPEL OBEDIENCE
WITH THE COURT'S OUTSTANDING ORDER. 

WE HAVE EXAMINED THE OTHER CONTENTIONS ADVANCED BY THE DEFENDANTS BUT
HAVE FOUND THEM TO BE WITHOUT MERIT.  THE TEMPORARY RESTRAINING ORDER
AND THE PRELIMINARY INJUNCTION WERE PROPERLY ISSUED, AND THE ACTIONS OF
THE DISTRICT COURT IN THESE RESPECTS ARE AFFIRMED.  THE JUDGMENT
AGAINST THE DEFENDANT LEWIS IS AFFIRMED.  THE JUDGMENT AGAINST THE
DEFENDANT UNION IS MODIFIED IN ACCORDANCE WITH THIS OPINION, AND, AS
MODIFIED, THAT JUDGMENT IS AFFIRMED.  SO ORDERED. 

FN1  THE UNITED STATES HAD TAKEN POSSESSION OF THE MINES PURSUANT TO
EXECUTIVE ORDER 9728 OF MAY 21, 1946, 11 F.R. 5593, IN WHICH THE
PRESIDENT, AFTER DETERMINING THAT LABOR DISTURBANCES WERE INTERRUPTING
THE PRODUCTION OF BITUMINOUS COAL NECESSARY FOR THE OPERATION OF THE
NATIONAL ECONOMY DURING THE TRANSITION FROM WAR TO PEACE, DIRECTED THE
SECRETARY OF THE INTERIOR TO TAKE POSSESSION OF AND OPERATE THE MINES
AND TO NEGOTIATE WITH REPRESENTATIVES OF THE MINERS CONCERNING THE
TERMS AND CONDITIONS OF EMPLOYMENT. 

THE PRESIDENT'S ACTION WAS TAKEN UNDER THE CONSTITUTION, AS PRESIDENT
OF THE UNITED STATES AND COMMANDER IN CHIEF OF THE ARMY AND NAVY, AND
BY VIRTUE OF THE AUTHORITY CONFERRED UPON HIM BY THE WAR LABOR DISPUTES
ACT, 57 STAT. 163, 50 U.S.C. APP. SECS. 1501-1511.  SECTION 3 OF THE
ACT AUTHORIZES THE SEIZURE OF FACILITIES NECESSARY FOR THE WAR EFFORT
IF AND WHEN THE PRESIDENT FINDS AND PROCLAIMS THAT STRIKES OR OTHER
LABOR DISTURBANCES ARE INTERRUPTING THE OPERATION OF SUCH FACILITIES. 

POSSESSION OF THE SPECIFIED FACILITIES WILL TERMINATE WITH THE ENDING
OF HOSTILITIES AND THAT THE AUTHORITY UNDER THAT SECTION TO OPERATE
FACILITIES SEIZED WILL TERMINATE SIX MONTHS AFTER THE ENDING OF
HOSTILITIES.  THE PRESIDENT ON DECEMBER 31, 1946, PROCLAIMED THAT
HOSTILITIES WERE TERMINATED ON THAT DAY.  12 F.R. 1. 

FN2  THE INITIAL PARAGRAPH OF THE CONTRACT PROVIDED: 

"THIS AGREEMENT BETWEEN THE SECRETARY OF THE INTERIOR, ACTING AS COAL
MINES ADMINISTRATOR UNDER THE AUTHORITY OF EXECUTIVE ORDER NO.
9728(DATED MAY 21, 1946, 11 F.R. 5593), AND THE UNITED MINE WORKERS OF
AMERICA, COVERS FOR THE PERIOD OF GOVERNMENT POSSESSION THE TERMS AND
CONDITIONS OF EMPLOYMENT IN RESPECT TO ALL MINES IN GOVERNMENT
POSSESSION WHICH WERE AS OF MARCH 31, 1946, SUBJECT TO THE NATIONAL
BITUMINOUS COAL WAGE AGREEMENT, DATED APRIL 11, 1945." 

FN3  IN COMPLIANCE WITH EXECUTIVE ORDER NO. 9728 AND SEC. 5 OF THE WAR
LABOR DISPUTES ACT, THE AGREEMENT HAD BEEN SUBMITTED TO AND APPROVED BY
THE NATIONAL WAGE STABILIZATION BOARD. 

FN4  SEE P. 286 INFRA. 

FN5  THE SAVING CLAUSE WAS IN THE FOLLOWING FORM: 

"EXCEPT AS AMENDED AND SUPPLEMENTED HEREIN, THIS AGREEMENT CARRIES
FORWARD AND PRESERVES THE TERMS AND CONDITIONS CONTAINED IN ALL JOINT
WAGE AGREEMENTS EFFECTIVE APRIL 1, 1941, THROUGH MARCH 31, 1943, THE
SUPPLEMENTAL AGREEMENT PROVIDING FOR THE SIX (6) DAY WORKWEEK, AND ALL
THE VARIOUS DISTRICT AGREEMENTS EXECUTED BETWEEN THE UNITED MINE
WORKERS AND THE VARIOUS COAL ASSOCIATIONS AND COAL COMPANIES (BASED
UPON THE AFORESAID BASIC AGREEMENT) AS THEY EXISTED ON MARCH 31, 1943,
AND THE NATIONAL BITUMINOUS COAL WAGE AGREEMENT, DATED APRIL 11,
1945." 

FN6  THE LETTER ALSO CHARGED CERTAIN BREACHES OF CONTRACT BY THE
GOVERNMENT AND ASSERTED SIGNIFICANT CHANGES IN GOVERNMENT WAGE POLICY. 

FN7  CAPTAIN COLLISSON ALSO SPECIFICALLY DENIED BREACHES OF CONTRACT
ON THE PART OF THE GOVERNMENT. 

FN8  CONFERENCES WERE CARRIED ON WITHOUT PREJUDICE TO THE CLAIMS OF
EITHER PARTY IN THIS RESPECT. 

FN9  SECRETARY KRUG AND DEFENDANT LEWIS MET PRIVATELY ON NOVEMBER 13
AND AGAIN ON NOVEMBER 14. 

FN10  SECRETARY KRUG HAD BEEN ADVISED BY THE ATTORNEY GENERAL, WHOSE
OPINION HAD BEEN SOUGHT, THAT SEC. 15 OF THE 1945 AGREEMENT WAS NO
LONGER IN FORCE. 

FN11  JUDICIAL CODE, SEC. 274D, 28 U.S.C. SEC. 400. 

FN12  THE PERTINENT PART OF THE ORDER WAS AS FOLLOWS: 

"NOW, THEREFORE, IT IS BY THE COURT THIS 18TH DAY OF NOVEMBER 1946, 

"ORDERED THAT THE DEFENDANTS AND EACH OF THEM AND THEIR AGENTS,
SERVANTS, EMPLOYEES, AND ATTORNEYS, AND ALL PERSONS IN ACTIVE CONCERT
OR PARTICIPATION WITH THEM, BE AND THEY ARE HEREBY RESTRAINED PENDING
FURTHER ORDER OF THIS COURT FROM PERMITTING TO CONTINUE IN EFFECT THE
NOTICE HERETOFORE GIVEN BY THE DEFENDANT, JOHN L. LEWIS, TO THE
SECRETARY OF INTERIOR DATED NOVEMBER 15, 1946; AND FROM ISSUING OR
OTHERWISE GIVING PUBLICITY TO ANY NOTICE THAT OR TO THE EFFECT THAT THE
KRUG-LEWIS AGREEMENT HAS BEEN, IS, OR WILL AT SOME FUTURE DATE BE
TERMINATED, OR THAT SAID AGREEMENT IS OR SHALL AT SOME FUTURE DATE BE
NUGATORY OR VOID AT ANY TIME DURING GOVERNMENT POSSESSION OF THE
BITUMINOUS COAL MINES; AND FROM BREACHING ANY OF THEIR OBLIGATIONS
UNDER SAID KRUG-LEWIS AGREEMENT; AND FROM COERCING, INSTIGATING,
INDUCING, OR ENCOURAGING THE MINE WORKERS AT THE BITUMINOUS COAL MINES
IN THE GOVERNMENT'S POSSESSION, OR ANY OF THEM, OR ANY PERSON, TO
INTERFERE BY STRIKE, SLOW DOWN, WALKOUT, CESSATION OF WORK, OR
OTHERWISE, WITH THE OPERATION OF SAID MINES BY CONTINUING IN EFFECT THE
AFORESAID NOTICE OR BY ISSUING ANY NOTICE OF TERMINATION OF AGREEMENT
OR THROUGH ANY OTHER MEANS OR DEVICE; AND FROM INTERFERING WITH OR
OBSTRUCTING THE EXERCISE BY THE SECRETARY OF THE INTERIOR OF HIS
FUNCTIONS UNDER EXECUTIVE ORDER 9728; AND FROM TAKING ANY ACTION WHICH
WOULD INTERFERE WITH THIS COURT'S JURISDICTION OR WHICH WOULD IMPAIR,
OBSTRUCT, OR RENDER FRUITLESS, THE DETERMINATION OF THIS CASE BY THE
COURT; 

"AND IT IS FURTHER ORDERED THAT THIS RESTRAINING ORDER SHALL EXPIRE
AT 3 O'CLOCK P.M. ON NOVEMBER 27TH, 1946, UNLESS BEFORE SUCH TIME THE
ORDER FOR GOOD CAUSE SHOWN IS EXTENDED, OR UNLESS THE DEFENDANTS
CONSENT THAT IT MAY BE EXTENDED FOR A LONGER PERIOD; 

"AND IT IS FURTHER ORDERED THAT PLAINTIFF'S MOTION FOR PRELIMINARY
INJUNCTION BE SET DOWN FOR HEARING ON NOVEMBER 27TH, 1946, AT 10:00
O'CLOCK A.M." 

FN13  47 STAT. 70, 29 U.S.C. SEC. 101. 

FN14  THE GROUNDS OFFERED FOR THE MOTION WERE: 

"1.  THE TEMPORARY RESTRAINING ORDER IS VOID IN THAT THIS CASE
INVOLVES AND GROWS OUT OF A LABOR DISPUTE.  UNDER THE PROVISIONS OF THE
NORRIS-LAGUARDIA ACT (47 STAT. 70), AND THE PROVISIONS OF SECTION 20 OF
THE CLAYTON ACT (38 U.S. STAT. C. 323, 730), THIS HONORABLE COURT IS
WITHOUT JURISDICTION OVER THE SUBJECT-MATTER OF THIS CAUSE.    "2.
EQUITY ACTS ONLY WHERE THERE IS NO PLAIN, ADEQUATE, AND COMPLETE REMEDY
AT LAW.  THE ALLEGATIONS OF THE PETITION FOR THE RULE PURPORT TO SHOW A
VIOLATION OF THE WAR LABOR DISPUTES ACT - A SERIOUS OFFENSE - IN WHICH
FIELD THERE IS NO PLACE FOR EQUITY INTERVENTION. 

"3.  OBSERVANCE OF ALL THE STRICT RULES OF CRIMINAL PROCEDURE IS
REQUIRED TO ESTABLISH CRIMINAL CONTEMPT.  IT IS APPARENT THAT THE
ALLEGED FACTS SET OUT IN THE UNVERIFIED PETITION AND IN THE AFFIDAVIT
OF CAPTAIN COLLISSON, FILED IN SUPPORT OF THE RULE, ARE BASED WHOLLY
UPON HEARSAY, INFORMATION AND BELIEF AND ARE NOT SUFFICIENT TO SUSTAIN
THE RULE TO SHOW CAUSE.    "4.  THE OBJECT OF THE PETITION FOR THE RULE
IS NECESSARILY PUNITIVE AND NOT COMPENSATORY.  ACCORDINGLY, IT BEING
FOR CRIMINAL CONTEMPT, THE PETITION SHOULD HAVE BEEN PRESENTED AS AN
INDEPENDENT PROCEEDING AND NOT AS SUPPLEMENTAL TO THE ORIGINAL CAUSE. 

"5.  THE TEMPORARY RESTRAINING ORDER IS BEYOND THE JURISDICTION OF
THIS HONORABLE COURT AND THEREFORE VOID BECAUSE IT CONTRAVENES THE
FIRST, FIFTH, AND THIRTEENTH AMENDMENTS TO THE CONSTITUTION OF THE
UNITED STATES." 

FN15  38 STAT. 730, 738, SEC. 20, 29 U.S.C. SEC. 52. 

FN16  AMERICAN FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S. 184,
202(1921); DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443,
470(1921). 

FN17  UNITED STATES V. HUTCHESON, 312 U.S. 219, 231(1941). 

FN18  SEE ALSO ALLEN BRADLEY CO. V. UNION, 325 U.S. 797, 805(1945);
UNITED STATES V. HUTCHESON, 312 U.S. 219, 235, 236(1941). 

FN19  "SEC.  4.  NO COURT OF THE UNITED STATES SHALL HAVE
JURISDICTION TO ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT
INJUNCTION IN ANY CASE INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE TO
PROHIBIT ANY PERSON OR PERSONS PARTICIPATING OR INTERESTED IN SUCH
DISPUTE (AS THESE TERMS ARE HEREIN DEFINED) FROM DOING, WHETHER SINGLY
OR IN CONCERT, ANY OF THE FOLLOWING ACTS: 

"(A)  CEASING OR REFUSING TO PERFORM ANY WORK OR TO REMAIN IN ANY
RELATION OF EMPLOYMENT; 

"(B)  BECOMING OR REMAINING A MEMBER OF ANY LABOR ORGANIZATION OR OF
ANY EMPLOYER ORGANIZATION, REGARDLESS OF ANY SUCH UNDERTAKING OR
PROMISE AS IS DESCRIBED IN SECTION 3 OF THIS ACT; 

"(C)  PAYING OR GIVING TO, OR WITHHOLDING FROM, ANY PERSON
PARTICIPATING OR INTERESTED IN SUCH LABOR DISPUTE, ANY STRIKE OR
UNEMPLOYMENT BENEFITS OR INSURANCE, OR OTHER MONEYS OR THINGS OF
VALUE; 

"(D)  BY ALL LAWFUL MEANS AIDING ANY PERSON PARTICIPATING OR
INTERESTED IN ANY LABOR DISPUTE WHO IS BEING PROCEEDED AGAINST IN, OR
IS PROSECUTING, ANY ACTION OR SUIT IN ANY COURT OF THE UNITED STATES OR
OF ANY STATE; 

"(E)  GIVING PUBLICITY TO THE EXISTENCE OF, OR THE FACTS INVOLVED IN,
ANY LABOR DISPUTE, WHETHER BY ADVERTISING, SPEAKING, PATROLLING, OR BY
ANY OTHER METHOD NOT INVOLVING FRAUD OR VIOLENCE; 

"(F)  ASSEMBLING PEACEABLY TO ACT OR TO ORGANIZE TO ACT IN PROMOTION
OF THEIR INTERESTS IN A LABOR DISPUTE; 

"(G)  ADVISING OR NOTIFYING ANY PERSON OF AN INTENTION TO DO ANY OF
THE ACTS HERETOFORE SPECIFIED; 

"(H)  AGREEING WITH OTHER PERSONS TO DO OR NOT TO DO ANY OF THE ACTS
HERETOFORE SPECIFIED; AND 

"(I)  ADVISING, URGING, OR OTHERWISE CAUSING OR INDUCING WITHOUT
FRAUD OR VIOLENCE THE ACTS HERETOFORE SPECIFIED, REGARDLESS OF ANY SUCH
UNDERTAKING OR PROMISE AS IS DESCRIBED IN SECTION 3 OF THIS ACT." 

"SEC. 13.  WHEN USED IN THIS ACT, AND FOR THE PURPOSES OF THIS ACT - 

"(A)  A CASE SHALL BE HELD TO INVOLVE OR TO GROW OUT OF A LABOR
DISPUTE WHEN THE CASE INVOLVES PERSONS WHO ARE ENGAGED IN THE SAME
INDUSTRY, TRADE, CRAFT, OR OCCUPATION; OR HAVE DIRECT OR INDIRECT
INTERESTS THEREIN; OR WHO ARE EMPLOYEES OF THE SAME EMPLOYER; OR WHO
ARE MEMBERS OF THE SAME OR AN AFFILIATED ORGANIZATION OF EMPLOYERS OR
EMPLOYEES; WHETHER SUCH DISPUTE IS (1) BETWEEN ONE OR MORE EMPLOYERS OR
ASSOCIATIONS OF EMPLOYERS AND ONE OR MORE EMPLOYEES OR ASSOCIATIONS OF
EMPLOYEES; (2) BETWEEN ONE OR MORE EMPLOYERS OR ASSOCIATIONS OF
EMPLOYERS AND ONE OR MORE EMPLOYERS OR ASSOCIATIONS OF EMPLOYERS; OR
(3) BETWEEN ONE OR MORE EMPLOYEES OR ASSOCIATIONS OF EMPLOYEES AND ONE
OR MORE EMPLOYEES OR ASSOCIATIONS OF EMPLOYEES; OR WHEN THE CASE
INVOLVES ANY CONFLICTING OR COMPETING INTERESTS IN A 'LABOR DISPUTE'
(AS HEREINAFTER DEFINED) OF 'PERSONS PARTICIPATING OR INTERESTED'
THEREIN (AS HEREINAFTER DEFINED). 

"(B)  A PERSON OR ASSOCIATION SHALL BE HELD TO BE A PERSON
PARTICIPATING OR INTERESTED IN A LABOR DISPUTE IF RELIEF IS SOUGHT
AGAINST HIM OR IT, AND IF HE OR IT IS ENGAGED IN THE SAME INDUSTRY,
TRADE, CRAFT, OR OCCUPATION IN WHICH SUCH DISPUTE OCCURS, OR HAS A
DIRECT OR INDIRECT INTEREST THEREIN, OR IS A MEMBER, OFFICER, OR AGENT
OF ANY ASSOCIATION COMPOSED IN WHOLE OR IN PART OF EMPLOYERS OR
EMPLOYEES ENGAGED IN SUCH INDUSTRY, TRADE, CRAFT, OR OCCUPATION. 

"(C)  THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING
TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR
REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING, MAINTAINING,
CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF EMPLOYMENT,
REGARDLESS OF WHETHER OR NOT THE DISPUTANTS STAND IN THE PROXIMATE
RELATION OF EMPLOYER AND EMPLOYEE. 

"(D)  THE TERM 'COURT OF THE UNITED STATES' MEANS ANY COURT OF THE
UNITED STATES WHOSE JURISDICTION HAS BEEN OR MAY BE CONFERRED OR
DEFINED OR LIMITED BY ACT OF CONGRESS, INCLUDING THE COURTS OF THE
DISTRICT OF COLUMBIA." 

FN20  LEWIS V. UNITED STATES, 92 U.S. 618, 622(1875); UNITED STATES
V. HERRON, 20 WALL.  251, 263(1873); SEE GUARANTEE CO. V. TITLE
GUARANTY CO., 224 U.S. 152, 155(1912). 

FN21  UNITED STATES V. CALIFORNIA, 297 U.S. 175, 186(1936); GREEN V.
UNITED STATES, 9 WALL.  655, 658(1869). 

FN22  UNITED STATES V. STEVENSON, 215 U.S. 190, 197(1909); UNITED
STATES V. AMERICAN BELL TELEPHONE CO., 159 U.S. 548, 553-555(1895);
DOLLAR SAVINGS BANK V. UNITED STATES, 19 WALL.  227, 238, 239(1873). 

FN23  "THE MOST GENERAL WORDS THAT CAN BE DEVISED (FOR EXAMPLE, ANY
PERSON OR PERSONS, BODIES POLITIC OR CORPORATE) AFFECT NOT HIM (THE
SOVEREIGN) IN THE LEAST, IF THEY MAY TEND TO RESTRAIN OR DIMINISH ANY
OF HIS RIGHTS OR INTERESTS."  DOLLAR SAVINGS BANK V. UNITED STATES, 19
WALL.  227, 239(1873).  "IF SUCH PROHIBITION IS INTENDED TO REACH THE
GOVERNMENT IN THE USE OF KNOWN RIGHTS AND REMEDIES, THE LANGUAGE MUST
BE CLEAR AND SPECIFIC TO THAT EFFECT."  UNITED STATES V. STEVENSON, 215
U.S. 190, 197(1909). 

IN BOTH THESE CASES THE QUESTION, AS IN THE PRESENT CASE, WAS WHETHER
THE UNITED STATES WAS DIVESTED OF A CERTAIN REMEDY BY A STATUTE OR A
RULE OF LAW WHICH, WITHOUT EXPRESS REFERENCE TO THE UNITED STATES, MADE
THAT REMEDY GENERALLY UNAVAILABLE. 

FN24  "SEC.  2.  IN THE INTERPRETATION OF THIS ACT AND IN DETERMINING
THE JURISDICTION AND AUTHORITY OF THE COURTS OF THE UNITED STATES, AS
SUCH JURISDICTION AND AUTHORITY ARE HEREIN DEFINED AND LIMITED, THE
PUBLIC POLICY OF THE UNITED STATES IS HEREBY DECLARED AS FOLLOWS: 

"WHEREAS UNDER PREVAILING ECONOMIC CONDITIONS, DEVELOPED WITH THE AID
OF GOVERNMENTAL AUTHORITY FOR OWNERS OF PROPERTY TO ORGANIZE IN THE
CORPORATE AND OTHER FORMS OF OWNERSHIP ASSOCIATION, THE INDIVIDUAL
UNORGANIZED WORKER IS COMMONLY HELPLESS TO EXERCISE ACTUAL LIBERTY OF
CONTRACT AND TO PROTECT HIS FREEDOM OF LABOR, AND THEREBY TO OBTAIN
ACCEPTABLE TERMS AND CONDITIONS OF EMPLOYMENT, WHEREFORE, THOUGH HE
SHOULD BE FREE TO DECLINE TO ASSOCIATE WITH HIS FELLOWS, IT IS
NECESSARY THAT HE HAVE FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION,
AND DESIGNATION OF REPRESENTATIVES OF HIS OWN CHOOSING, TO NEGOTIATE
THE TERMS AND CONDITIONS OF HIS EMPLOYMENT, AND THAT HE SHALL BE FREE
FROM THE INTERFERENCE, RESTRAINT, OR COERCION OF EMPLOYERS OF LABOR, OR
THEIR AGENTS, IN THE DESIGNATION OF SUCH REPRESENTATIVES OR IN SELF
ORGANIZATION OR IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION; THEREFORE, THE
FOLLOWING DEFINITIONS OF, AND LIMITATIONS UPON, THE JURISDICTION AND
AUTHORITY OF THE COURTS OF THE UNITED STATES ARE HEREBY ENACTED." 

FN25  UNITED STATES V. COOPER CORP., 312 U.S. 600, 604(1941); UNITED
STATES V. FOX, 94 U.S. 315, 321(1876). 

FN26  75 CONG. REC. 5473.  AN AMENDMENT BY REPRESENTATIVE BECK,
DESIGNED TO SAVE TO THE UNITED STATES THE RIGHT TO INTERVENE BY
INJUNCTION IN PRIVATE LABOR DISPUTES, WAS DEFEATED.  75 CONG. REC.
5503, 5505. 

FN27  75 CONG. REC. 5503. 

FN28  IBID. 

FN29  MOST FREQUENTLY MENTIONED WAS THE GOVERNMENT ACTION IN
CONNECTION WITH THE RAILWAY STRIKES OF 1894 AND 1922. 

FN30  75 CONG. REC. 5464. 

FN31  75 CONG. REC. 5509. 

FN32  REPRESENTATIVE SCHNEIDER, AT 75 CONG. REC. 5514, STATED:  "AND
IT HAS ALSO BEEN POINTED OUT THAT THE ENACTMENT OF THIS BILL WILL NOT
TAKE AWAY FROM THE FEDERAL GOVERNMENT ANY RIGHTS WHICH IT HAS UNDER
EXISTING LAW TO SEEK AND OBTAIN INJUNCTIVE RELIEF WHERE THE SAME IS
DEEMED BY GOVERNMENT OFFICIALS TO BE NECESSARY FOR THE FUNCTIONING OF
THE GOVERNMENT. 

"IN OTHER WORDS, A TREMENDOUS FIELD IN WHICH THE INJUNCTION CAN STILL
BE USED EFFECTIVELY WILL REMAIN AFTER THE ENACTMENT OF THIS BILL." 

FN33  UNITED STATES V. WRIGHTWOOD DAIRY CO., 315 U.S. 110, 125(1942);
DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443, 475(1921). 

FN34  WE HAVE BEEN CITED TO NO INSTANCES IN WHICH THE CONSIDERATION
OF THE SENATE WAS DIRECTED TO THE SPECIFIC ISSUE OF THE RELATIONSHIP
BETWEEN THE UNITED STATES AND ITS OWN EMPLOYEES.  THE USE OF THE
INJUNCTION BY THE GOVERNMENT WAS IN QUESTION, BUT PRIMARILY IN RESPECT
TO THOSE INSTANCES IN WHICH THE UNITED STATES HAD TAKEN ACTION IN
PRIVATE LABOR DISPUTES, E.G., 75 CONG. REC. 4509, 4619, 4620, 4693,
5001, 5005.  SILENCE UPON THE STATUS OF THE GOVERNMENT AS EMPLOYER IS
NOT INCONSISTENT WITH THE DESIRE OF THE HOUSE TO EXCLUDE FROM THE ACT
THOSE DISPUTES IN WHICH THE UNITED STATES IS SEEKING RELIEF AGAINST ITS
OWN EMPLOYEES. 

FN35  UNITED STATES V. AMERICAN FEDERATION OF MUSICIANS, 318 U.S.
741(1943); SEE UNITED STATES V. HUTCHESON, 312 U.S. 219, 227(1941).  IN
ACCORD IS UNITED STATES V. WEIRTON STEEL CO., 7 F.SUPP.  255(1934); CF.
ANDERSON V. BIGELOW, 130 F.2D 460(1942). 

FN36  IT WAS UPON SEC. 3 OF THIS ACT THAT THE PRESIDENT BASED IN PART
THE SEIZURE OF THE BITUMINOUS COAL MINES.  SEE NOTE 1, SUPRA. 

FN37  89 CONG. REC. 3812.  THE SUBSTITUTE BILL EMBODIED TWO
AMENDMENTS PROPOSED BY SENATOR CONNALLY ON THE FLOOR OF THE SENATE.  89
CONG. REC. 3809. 

FN38  SECTION 5 OF THE SUBSTITUTE BILL ORIGINALLY DID NOT LIMIT THE
ISSUANCE OF INJUNCTIONS TO THOSE SOUGHT BY THE ATTORNEY GENERAL, BUT
SENATOR WAGNER'S PROPOSAL TO INSERT "BUT SOLELY UPON APPLICATION BY THE
ATTORNEY GENERAL OR UNDER HIS DIRECTION" WAS ACCEPTED.  89 CONG. REC.
3986. 

FN39  A GREAT NUMBER OF THE REFERENCES TO THE NORRIS-LAGUARDIA ACT
WERE MADE IN CONNECTION WITH THE PROPOSED TAFT AND REED AMENDMENTS.  89
CONG. REC. 3897, 3984, 3985, 3986. 

FN40  SENATORS CONNALLY AND DANAHER EXPRESSED THIS VIEW AND OTHER
SENATORS WERE APPARENTLY IN ACCORD.  89 CONG. REC. 3988-9. 

FN41  SEE UNITED STATES V. WRIGHTWOOD DAIRY CO., 315 U.S. 110,
125(1942); MCCAUGHN V. HERSHEY CHOCOLATE CO., 283 U.S. 488, 493(1931);
DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443, 474(1921). 

FN42  89 CONG. REC. 3889, 3890, 3904-5. 

FN43  SECTION 5, AS WE HAVE NOTED BEFORE, WOULD HAVE PERMITTED
ISSUING INJUNCTIONS TO RESTRAIN VIOLATIONS OF THE ACT.  IT IS NOT AT
ALL CLEAR THAT THE REJECTION OF A PROPOSAL IN THIS FORM SHOULD, IN ANY
EVENT, BE OF DETERMINATIVE SIGNIFICANCE IN THE CASE AT BAR.  HERE THE
UNITED STATES RESORTED TO THE DISTRICT COURT FOR VINDICATION OF ITS
RIGHT UNDER A FORMAL CONTRACT, SAID TO BE OPERATIVE "FOR THE PERIOD OF
GOVERNMENT POSSESSION" AND MUTUALLY ADOPTED BY THE PARTIES CONCERNED AS
A SATISFACTORY SOLUTION TO A GRAVE SITUATION.  THE DISTRICT COURT, TO
PRESERVE EXISTING CONDITIONS, ISSUED A RESTRAINING ORDER AND A
PRELIMINARY INJUNCTION, EFFECTIVE UNTIL CONTRACTUAL RIGHTS COULD BE
ASCERTAINED.  TRUE, THE ACTION OF THE DEFENDANT LEWIS IN CALLING A
STRIKE, IN ADDITION TO TERMINATING THE CONTRACT, SUGGESTS A VIOLATION
OF SEC. 6 OF THE WAR LABOR DISPUTES ACT.  BUT SENATE DISAPPROVAL OF
USING INJUNCTIONS TO AVERT THE LATTER EVENT DOES NOT NECESSARILY IMPLY
A DESIRE TO DIMINISH THE CONTRACTUAL RIGHTS AND REMEDIES OF THE UNITED
STATES. 

FN44  89 CONG. REC. 5382. 

FN45  SEE, FOR EXAMPLE, 89 CONG. REC. 5241, 5243, 5299, 5305, 5321,
5325. 

FN46  THUS IN THE LEGISLATIVE DEBATES SENATOR CONNALLY STATED:  "...
BUT IT DOES SEEM TO ME THAT THE POWER AND AUTHORITY AND SOVEREIGNTY OF
THE GOVERNMENT OF THE UNITED STATES ARE SO COMPREHENSIVE THAT WHEN WE
ARE ENGAGED IN WAR AND A PLANT IS NOT PRODUCING, WE CAN TAKE IT OVER,
AND THAT WHEN WE DO TAKE IT OVER, IT IS A GOVERNMENT PLANT, JUST AS
MUCH AS IF WE HAD A FEE SIMPLE TITLE TO IT,  ..."  89 CONG. REC. 3811
3812.  SEE ALSO ID. AT 3809, 3884-3885, 5722. 

FN47  WAR LABOR DISPUTES ACT, SEC. 6, PROVIDED: 

"(A)  WHENEVER ANY PLANT, MINE, OR FACILITY IS IN THE POSSESSION OF
THE UNITED STATES, IT SHALL BE UNLAWFUL FOR ANY PERSON (1) TO COERCE,
INSTIGATE, INDUCE, CONSPIRE WITH, OR ENCOURAGE ANY PERSON, TO
INTERFERE, BY LOCK-OUT, STRIKE, SLOW-DOWN, OR OTHER INTERRUPTION, WITH
THE OPERATION OF SUCH PLANT, MINE, OR FACILITY, OR (2) TO AID ANY SUCH
LOCK-OUT, STRIKE, SLOW-DOWN, OR OTHER INTERRUPTION INTERFERING WITH THE
OPERATION OF SUCH PLANT, MINE, OR FACILITY BY GIVING DIRECTION OR
GUIDANCE IN THE CONDUCT OF SUCH INTERRUPTION, OR BY PROVIDING FUNDS FOR
THE CONDUCT OR DIRECTION THEREOF OR FOR THE PAYMENT OF STRIKE,
UNEMPLOYMENT, OR OTHER BENEFITS TO THOSE PARTICIPATING THEREIN.  NO
INDIVIDUAL SHALL BE DEEMED TO HAVE VIOLATED THE PROVISIONS OF THIS
CONTINUE TO WORK OR TO ACCEPT EMPLOYMENT.    "(B)  ANY PERSON WHO
WILLFULLY VIOLATES ANY PROVISION OF THIS SECTION SHALL BE SUBJECT TO A
FINE OF NOT MORE THAN $5,000, OR TO IMPRISONMENT FOR NOT MORE THAN ONE
YEAR, OR BOTH." 

FN48  ID., SEC. 5. 

FN49  THUS ACCORDING TO SEC. 23 OF THE REVISED REGULATIONS FOR THE
OPERATION OF THE COAL MINES UNDER GOVERNMENT CONTROL, ISSUED BY THE
COAL MINES ADMINISTRATOR ON JULY 8, 1946:  "...  NOTHING IN THESE
REGULATIONS SHALL BE CONSTRUED AS RECOGNIZING SUCH PERSONNEL AS
OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT WITHIN THE MEANING OF
THE STATUTES RELATING TO FEDERAL EMPLOYMENT."  AND SEE SEC. 16. 
OFFICERS AND EMPLOYEES, SHALL BE CONSIDERED AS CALLED UPON BY EXECUTIVE
ORDER NO. 9728, TO SERVE THE GOVERNMENT OF THE UNITED STATES  ..." 

FN50  AFTER THE NEGOTIATION OF THE KRUG-LEWIS AGREEMENT, THE CHANGES
AGREED UPON THEREIN WERE APPROVED BY THE NATIONAL WAGE STABILIZATION
ACT AND THEREAFTER BY THE PRESIDENT.  THIS PROCEDURE IS PROVIDED FOR IN
SEC. 5 OF THE WAR LABOR DISPUTES ACT. 

FN51  REVISED REGULATIONS FOR THE OPERATION OF THE COAL MINES UNDER
GOVERNMENT CONTROL, SEC. 15. 

FN52  REGULATIONS, SECS. 16, 31. 

FN53  REGULATIONS, SECS. 17, 40. 

FN54  REGULATIONS, SEC. 24. 

FN55  IBID. 

FN56  "IF A PARTY CAN MAKE HIMSELF A JUDGE OF THE VALIDITY OF ORDERS
WHICH HAVE BEEN ISSUED, AND BY HIS OWN ACT OF DISOBEDIENCE SET THEM
ASIDE, THEN ARE THE COURTS IMPOTENT, AND WHAT THE CONSTITUTION NOW
FITTINGLY CALLS THE 'JUDICIAL POWER OF THE UNITED STATES' WOULD BE A
MERE MOCKERY."  GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418,
450(1911). 

FN57  "IT CANNOT NOW BE BROADLY ASSERTED THAT A JUDGMENT IS ALWAYS A
NULLITY IF JURISDICTION OF SOME SORT OR OTHER IS WANTING.  IT IS NOW
HELD THAT, EXCEPT IN CASE OF PLAIN USURPATION, A COURT HAS JURISDICTION
TO DETERMINE ITS OWN JURISDICTION, AND IF IT BE CONTESTED AND ON DUE
HEARING IT IS UPHELD, THE DECISION UNREVERSED BINDS THE PARTIES AS A
THING ADJUDGED.  TREINIES V. SUNSHINE MINING CO., 308 U.S. 66, 60 S.
CT. 44, 84 L. ED. 85; SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S.
381, 403, 60 S. CT. 907, 84 L. ED. 1263; STOLL V. GOTTLIEB, 305 U.S.
165, 59 S. CT. 134, 83 L. ED. 104.  SO IN THE MATTER OF FEDERAL
JURISDICTION, WHICH IS OFTEN A CLOSE QUESTION, THE FEDERAL COURT MAY
EITHER HAVE TO DETERMINE THE FACTS, AS IN CONTESTED CITIZENSHIP, OR THE
LAW, AS WHETHER THE CASE ALLEGED ARISES UNDER A LAW OF THE UNITED
STATES." 

FN58  HOWAT V. KANSAS, 258 U.S. 181(1922); RUSSELL V. UNITED STATES,
86 F.2D 389(1936); LOCKE V. UNITED STATES, 75 F.2D 157(1935); O'HEARNE
V. UNITED STATES, 62 APP. D.C. 285, 66 F.2D 933(1933); SCHWARTZ V.
UNITED STATES, 217 F. 866(1914); BROUGHAM V. OCEANIC STEAM NAVIGATION
CO., 205 F. 857(1913); BLAKE V. NESBET, 144 F. 279(1905); SEE ALEMITE
MFG. CORP. V. STAFF, 42 F.2D 832, 833(1930). 

FN59  SEE ALEMITE MFG. CORP. V. STAFF, 42 F.2D 832, 833(1930). 

FN60 SEE SALVAGE PROCESS CORP. V. ACME TANK CLEANING PROCESS CORP.,
86 F.2D 727(1936). 

FN61  SEE LEMAN V. KRENTLER-ARNOLD CO., 284 U.S. 448, 453(1932);
BESSETTE V. W.B. CONKEY CO., 194 U.S. 324, 329(1904); MCCANN V. NEW
YORK STOCK EXCHANGE, 80 F.2D 211, 214(1935).  IN ACCORD IN THE CASE OF
SETTLEMENT IS GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 451
2(1911):  "... WHEN THE MAIN CAUSE WAS TERMINATED  ...  BETWEEN THE
PARTIES, THE COMPLAINANT DID NOT REQUIRE AND WAS NOT ENTITLED TO ANY
COMPENSATION OR RELIEF OF ANY OTHER CHARACTER." 

FN62  18 U.S.C.A. FOLLOWING SEC. 687.  RULE 42(B) REGULATES VARIOUS
ASPECTS OF A PROCEEDING FOR CRIMINAL CONTEMPT WHERE THE CONTEMPT IS NOT
COMMITTED IN THE ACTUAL PRESENCE OF THE COURT: 

"DISPOSITION UPON NOTICE AND HEARING.  A CRIMINAL CONTEMPT EXCEPT AS
PROVIDED IN SUBDIVISION (A) OF THIS RULE SHALL BE PROSECUTED ON
NOTICE.  THE NOTICE SHALL STATE THE TIME AND PLACE OF HEARING, ALLOWING
A REASONABLE TIME FOR THE PREPARATION OF THE DEFENSE, AND SHALL STATE
THE ESSENTIAL FACTS CONSTITUTING THE CRIMINAL CONTEMPT CHARGED AND
DESCRIBE IT AS SUCH.  THE NOTICE SHALL BE GIVEN ORALLY BY THE JUDGE IN
OPEN COURT IN THE PRESENCE OF THE DEFENDANT OR, ON APPLICATION OF THE
UNITED STATES ATTORNEY OR OF AN ATTORNEY APPOINTED BY THE COURT FOR
THAT PURPOSE, BY AN ORDER TO SHOW CAUSE OR AN ORDER OF ARREST.  THE
DEFENDANT IS ENTITLED TO A TRIAL BY JURY IN ANY CASE IN WHICH AN ACT OF
CONGRESS SO PROVIDES.  HE IS ENTITLED TO ADMISSION TO BAIL AS PROVIDED
IN THESE RULES.  IF THE CONTEMPT CHARGED INVOLVES DISRESPECT TO OR
CRITICISM OF A JUDGE, THAT JUDGE IS DISQUALIFIED FROM PRESIDING AT THE
TRIAL OR HEARING EXCEPT WITH THE DEFENDANT'S CONSENT.  UPON A VERDICT
OR FINDING OF GUILT THE COURT SHALL ENTER AN ORDER FIXING THE
PUNISHMENT." 

FN63  CONLEY V. UNITED STATES, 59 F.2D 929(1932); KELLY V. UNITED
STATES, 250 F. 947(1918); SEE NATIONAL LABOR RELATIONS BOARD V. ARCADE
SUNSHINE CO., 74 APP. D.C. 361, 362, 122 F.2D 964, 965(1941). 

FN64  IT COULD BE WELL ARGUED THAT THE USE OF THE WORD "PUNISHED" IN
THE PETITION AND RULE TO SHOW CAUSE WAS IN ITSELF ADEQUATE NOTICE, FOR
"PUNISHMENT" HAS BEEN SAID TO BE THE MAGIC WORD INDICATING A PROCEEDING
IN CRIMINAL, RATHER THAN CIVIL, CONTEMPT.  MOSKOVITZ, CONTEMPT OF
INJUNCTIONS, CIVIL AND CRIMINAL, 43 COL. L. REV. 780, 789-90(1943). 
BUT "PUNISHMENT" AS USED IN CONTEMPT CASES IS AMBIGUOUS.  "IT IS NOT
THE FACT OF PUNISHMENT BUT RATHER ITS CHARACTER AND PURPOSE  ..." 
GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 441(1941). 

NOTEWORTHY ALSO IS THE ALLEGATION IN THE AFFIDAVIT THAT THE
DEFENDANTS' VIOLATION OF THE RESTRAINING ORDER HAD "INTERFERED WITH
THIS COURT'S JURISDICTION."  AND THE CHARGE IN THE PETITION OF
"WILFULLY  ...  AND DELIBERATELY" DISOBEYING THE RESTRAINING ORDER
INDICATES AN INTENTION TO PROSECUTE CRIMINAL CONTEMPT. 

FN65  SEE POINT 4, NOTE 14, SUPRA.  THE POINTS AND AUTHORITIES IN
SUPPORT OF THE MOTION USED SIMILAR LANGUAGE. 

FN66  THE RULE IN THIS RESPECT FOLLOWS THE SUGGESTION MADE IN MCCANN
V. NEW YORK STOCK EXCHANGE, 80 F.2D 211, 214-215(1935).  NOTES TO THE
RULES OF CRIMINAL PROCEDURE, ADVISORY COMMITTEE, MARCH, 1945, P. 34. 

FN67  COOKE V. UNITED STATES, 267 U.S. 517, 537(1925); SEE MICHAELSON
V. UNITED STATES, 266 U.S. 42, 66-67(1924). 

FN68  SECTION 11 PROVIDES IN PART:  "IN ALL CASES ARISING UNDER THIS
ACT IN WHICH A PERSON SHALL BE CHARGED WITH CONTEMPT IN A COURT OF THE
UNITED STATES (AS HEREIN DEFINED), THE ACCUSED SHALL ENJOY THE RIGHT TO
A SPEEDY AND PUBLIC TRIAL BY AN IMPARTIAL JURY OF THE STATE AND
DISTRICT WHEREIN THE CONTEMPT SHALL HAVE BEEN COMMITTED  ..." 

FN69  WE BELIEVE, AND THE GOVERNMENT ADMITS, THAT THE DEFENDANTS
WOULD HAVE BEEN ENTITLED TO A JURY TRIAL IF SEC. 11 APPLIED TO THE
INSTANT CONTEMPT PROCEEDING AND IF THIS CASE AROSE UNDER THE NORRIS
LAGUARDIA ACT. 

FN70  "IT MAY NOT BE ALWAYS EASY TO CLASSIFY A PARTICULAR ACT AS
BELONGING TO EITHER ONE OF THESE TWO CLASSES.  IT MAY PARTAKE OF THE
CHARACTERISTICS OF BOTH."  BESSETTE V. W.B. CONKEY CO., 194 U.S. 324,
329(1904).  SEE LAMB V. CRAMER, 285 U.S. 217, 221(1932); MERCHANTS'
STOCK & GRAIN CO. V. BOARD OF TRADE OF CHICAGO, 201 F. 20, 24(1912). 

FN71  "IN PATENT CASES IT HAS BEEN USUAL TO EMBRACE IN ONE PROCEEDING
THE PUBLIC AND THE PRIVATE REMEDY - TO PUNISH THE DEFENDANT IF FOUND
WORTHY OF PUNISHMENT, AND, AT THE SAME TIME, OR AS AN ALTERNATIVE, TO
ASSESS DAMAGES AND COSTS FOR THE BENEFIT OF THE PLAINTIFF  ..." 
HENDRYX V. FITZPATRICK, 19 F. 810, 813(1884).  EXAMPLES OF THIS
PROCEDURE APPEAR IN UNION TOOL CO. V. WILSON, 259 U.S. 107(1922);
MATTER OF CHRISTENSEN ENGINEERING CO., 194 U.S. 458(1904); WILSON V.
BYRON JACKSON CO., 93 F.2D 577(1937); KREPLIK V. COUCH PATENTS CO., 190
F. 565(1911). 

FN72  FARMERS NATIONAL BANK V. WILKINSON, 266 U.S. 503(1925); IN RE
SWAN, 150 U.S. 637(1893); IN RE AYERS, 123 U.S. 443(1887); MERCHANTS'
STOCK & GRAIN CO. V. BOARD OF TRADE OF CHICAGO, 201 F. 20(1912).  SEE
PHILLIPS SHEET & TIN PLATE CO. V. AMALGAMATED ASSN. OF IRON & TIN
WORKERS, 208 F. 335, 340(1913).  INSTANCES IN THE STATE COURTS INCLUDE
CAREY V. DISTRICT COURT OF JASPER COUNTY, 226 IOWA 717, 285 N.W.
236(1939); HOLLOWAY V. PEOPLES WATER CO., 100 KAN. 414, 167 P.
265(1917); GRAND LODGE, K.P. OF NEW JERSEY V. JANSEN, 62 N.J. EQ. 737,
48 A. 526(1901). 

FN73  WE ARE NOT IMPRESSED WITH DEFENDANTS' ATTACK ON THE PLEADINGS
AS INSUFFICIENT TO SUPPORT A JUDGMENT FOR CIVIL CONTEMPT.  THE
PETITION, AFFIDAVIT, AND RULE TO SHOW CAUSE DID NOT EXPRESSLY MENTION
CIVIL CONTEMPT OR REMEDIAL RELIEF, BUT THE AFFIDAVIT CONTAINED
ALLEGATIONS OF INTERFERENCE WITH THE OPERATION OF THE MINES AND WITH
GOVERNMENTAL FUNCTIONS.  THESE CLAIMS DO NOT NEGATIVE REMEDIAL OR
COERCIVE RELIEF.  MORE SIGNIFICANTLY, THE AFFIDAVIT CHARGED
DISOBEDIENCE OF THE RESTRAINING ORDER BY FAILING TO WITHDRAW THE NOTICE
OF NOV. 15.  WE WILL NOT ASSUME THAT THE DEFENDANTS WERE NOT INSTANTLY
AWARE THAT A USUAL REMEDY IN SUCH A SITUATION IS TO IMPOSE COERCIVE
SANCTIONS UNTIL THE ACT IS PERFORMED.  THIS IS A FUNCTION OF CIVIL
CONTEMPT.  LAMB V. CRAMER, 285 U.S. 217, 221(1932); MICHAELSON V.
UNITED STATES, 266 U.S. 42, 66(1924); GOMPERS V. BUCKS STOVE & RANGE
CO., 221 U.S. 418, 449(1911).  FURTHERMORE, DEFENDANTS' COUNSEL, IN
ARGUMENT ON THE MOTION TO VACATE, REMARKED THAT THE UNITED STATES WAS
PROCEEDING UPON THE THEORY OF CIVIL CONTEMPT, AND ATTEMPTED ONLY TO
DEMONSTRATE THE INABILITY OF THE UNITED STATES TO SEEK THIS RELIEF. 
AND WHEN THE GOVERNMENT'S SUGGESTIONS FOR FINES WERE BEFORE THE COURT,
DEFENDANTS' COUNSEL ARGUED THE EXCESSIVENESS OF THE FINES FOR EITHER
CIVIL OR CRIMINAL CONTEMPT. 

FN74  CRIMINAL CONTEMPT WAS APPARENTLY TRIED OUT IN THE EQUITY SUIT
IN THE PATENT CASES IN NOTE 71 SUPRA.  AND THIS WAS THE PRACTICE
FOLLOWED IN MATTER OF CHRISTENSEN ENGINEERING CO., 194 U.S. 458(1904);
BESSETTE V. W.B. CONKEY CO., 194 U.S. 324(1904); NEW ORLEANS V.
STEAMSHIP CO., 20 WALL.  387(1874).  IN NONE OF THESE CASES IN THIS
COURT, HOWEVER, HAS THERE BEEN AN AFFIRMATIVE DISCUSSION OF THE
PROPRIETY OF PROCEEDING IN THIS MANNER.  COMPARE GOMPERS V. BUCKS STOVE
& RANGE CO., 221 U.S. 418, 445(1911); UNITED STATES V. BITTNER, 11 F.2D
93, 95(1926), WITH NYE V. UNITED STATES, 313 U.S. 33, 42(1941). 

FN75  CF. NYE V. UNITED STATES, 313 U.S. 33, 42(1941); UNION TOOL CO.
V. WILSON, 259 U.S. 107, 110(1922); IN RE MERCHANTS' STOCK & GRAIN CO.,
223 U.S. 639, 642(1912); MATTER OF CHRISTENSEN ENGINEERING CO., 194
U.S. 458, 461(1904). 

FN76  IN FEDERAL TRADE COMMISSION V. A. MCLEAN & SON, 94 F.2D
802(1938), IT COULD NOT BE SAID THAT THE CRIMINAL ELEMENT HAD BEEN
DOMINANT AND CLEAR FROM THE VERY OUTSET OF THE CASE.  THE SAME IS TRUE
OF NORSTROM V. WAHL, 41 F.2D 910(1930). 

FN77  RULE 65(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDES
THAT A TEMPORARY RESTRAINING ORDER SHOULD EXPIRE ACCORDING TO ITS TERMS
"UNLESS WITHIN THE TIME SO FIXED THE ORDER, FOR GOOD CAUSE SHOWN, IS
EXTENDED FOR A LIKE PERIOD  ..."  THERE BEING SUFFICIENT CAUSE FOR THE
EXTENSION, THERE IS NO CONFLICT WITH THE SUBSEQUENT CLAUSE OF RULE
65(B) REQUIRING THAT "THE MOTION FOR A PRELIMINARY INJUNCTION SHALL BE
SET DOWN FOR HEARING AT THE EARLIEST POSSIBLE TIME AND TAKES PRECEDENCE
OF ALL MATTERS EXCEPT OLDER MATTERS OF THE SAME CHARACTER  ..."  308
U.S. 744. 

FN78  SECTION 24 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 41, EXTENDS THE
JURISDICTION OF THE DISTRICT COURTS TO "ALL SUITS OF A CIVIL NATURE, AT
COMMON LAW OR IN EQUITY, BROUGHT BY THE UNITED STATES  ..." 

FN79  THE COURT IN THE MCCRONE CASE AFFIRMED 100 F.2D 322 AND NOTED,
307 U.S. 61, 63, NOTE 4, THE CONFLICT WITH FEDERAL TRADE COMMISSION V.
A. MCCLEAN & SON, 94 F.2D 802, 804(1938), UPON WHICH DEFENDANTS NOW
RELY. 

FN80  LEMAN V. KRENTLER-ARNOLD CO., 284 U.S. 448, 455-456(1932);
GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 443-444(1911); PARKER
V. UNITED STATES, 126 F.2D 370, 380(1942); JUDELSHON V. BLACK, 64 F.2D
116(1933); NORSTROM V. WAHL, 41 F.2D 910, 914(1930). 

FN81  SEE PP. 294-295 SUPRA. 

FN82  CF. DOYLE V. LONDON GUARANTEE CO., 204 U.S. 599(1907).  SEE
ALSO IN RE CHILES, 22 WALL.  157, 168(1874). 

MR. JUSTICE JACKSON JOINS IN THIS OPINION EXCEPT AS TO THE NORRIS
LAGUARDIA ACT WHICH HE THINKS RELIEVED THE COURTS OF JURISDICTION TO
ISSUE INJUNCTIONS IN THIS CLASS OF CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING IN THE JUDGMENT. 

THE HISTORIC PHRASE "A GOVERNMENT OF LAWS AND NOT OF MEN" EPITOMIZES
THE DISTINGUISHING CHARACTER OF OUR POLITICAL SOCIETY.  WHEN JOHN ADAMS
PUT THAT PHRASE INTO THE MASSACHUSETTS DECLARATION OF RIGHTS HE WAS NOT
INDULGING IN A RHETORICAL FLOURISH.  HE WAS EXPRESSING THE AIM OF THOSE
WHO, WITH HIM, FRAMED THE DECLARATION OF INDEPENDENCE AND FOUNDED THE
REPUBLIC.  "A GOVERNMENT OF LAWS AND NOT OF MEN" WAS THE REJECTION IN
POSITIVE TERMS OF RULE BY FIAT, WHETHER BY THE FIAT OF GOVERNMENTAL OR
PRIVATE POWER.  EVERY ACT OF GOVERNMENT MAY BE CHALLENGED BY AN APPEAL
TO LAW, AS FINALLY PRONOUNCED BY THIS COURT.  EVEN THIS COURT HAS THE
LAST SAY ONLY FOR A TIME.  BEING COMPOSED OF FALLIBLE MEN, IT MAY ERR. 
BUT REVISION OF ITS ERRORS MUST BE BY ORDERLY PROCESS OF LAW.  THE
COURT MAY BE ASKED TO RECONSIDER ITS DECISIONS, AND THIS HAS BEEN DONE
SUCCESSFULLY AGAIN AND AGAIN THROUGHOUT OUT HISTORY.  OR, WHAT THIS
COURT HAS DEEMED ITS DUTY TO DECIDE MAY BE CHANGED BY LEGISLATION, AS
IT OFTEN HAS BEEN, AND, ON OCCASION, BY CONSTITUTIONAL AMENDMENT. 

BUT FROM THEIR OWN EXPERIENCE AND THEIR DEEP READING IN HISTORY, THE
FOUNDERS KNEW THAT LAW ALONE SAVES A SOCIETY FROM BEING RENT BY
INTERNECINE STRIFE OR RULED BY MERE BRUTE POWER HOWEVER DISGUISED. 
"CIVILIZATION INVOLVES SUBJECTION OF FORCE TO REASON, AND THE AGENCY OF
THIS SUBJECTION IS LAW."  FN1  THE CONCEPTION OF A GOVERNMENT BY LAWS
DOMINATED THE THOUGHTS OF THOSE WHO FOUNDED THIS NATION AND DESIGNED
ITS CONSTITUTION, ALTHOUGH THEY KNEW AS WELL AS THE BELITTLERS OF THE
CONCEPTION THAT LAWS HAVE TO BE MADE, INTERPRETED AND ENFORCED BY MEN. 
TO THAT END, THEY SET APART A BODY OF MEN, WHO WERE TO BE THE
DEPOSITORIES OF LAW, WHO BY THEIR DISCIPLINED TRAINING AND CHARACTER
AND BY WITHDRAWAL FROM THE USUAL TEMPTATIONS OF PRIVATE INTEREST MAY
REASONABLY BE EXPECTED TO BE "AS FREE, IMPARTIAL, AND INDEPENDENT AS
THE LOT OF HUMANITY WILL ADMIT."  SO STRONGLY WERE THE FRAMERS OF THE
CONSTITUTION BENT ON SECURING A REIGN OF LAW THAT THEY ENDOWED THE
JUDICIAL OFFICE WITH EXTRAORDINARY SAFEGUARDS AND PRESTIGE.  NO ONE, NO
MATTER HOW EXALTED HIS PUBLIC OFFICE OR HOW RIGHTEOUS HIS PRIVATE
MOTIVE, CAN BE JUDGE IN HIS OWN CASE.  THAT IS WHAT COURTS ARE FOR. 
AND NO TYPE OF CONTROVERSY IS MORE PECULIARLY FIT FOR JUDICIAL
DETERMINATION THAN A CONTROVERSY THAT CALLS INTO QUESTION THE POWER OF
A COURT TO DECIDE.  CONTROVERSIES OVER "JURISDICTION" ARE APT TO RAISE
DIFFICULT TECHNICAL PROBLEMS.  THEY USUALLY INVOLVE JUDICIAL
PRESUPPOSITIONS, TEXTUAL DOUBTS, CONFUSED LEGISLATIVE HISTORY, AND LIKE
FACTORS HARDLY FIT FOR FINAL DETERMINATION BY THE SELF-INTEREST OF A
PARTY. 

EVEN WHEN A STATUTE DEALS WITH A RELATIVELY UNCOMPLICATED MATTER, AND
THE "WORDS IN THEIR NATURAL SENSE AS THEY WOULD BE READ BY THE COMMON
MAN" WOULD APPEAR TO GIVE AN OBVIOUS MEANING, CONSIDERATIONS UNDERLYING
THE STATUTE HAVE LED THIS COURT TO CONCLUDE THAT "THE WORDS CANNOT BE
TAKEN QUITE SO SIMPLY."  SEE MILBURN CO. V. DAVIS CO., 270 U.S. 390,
400.  HOW MUCH MORE TRUE THIS IS OF LEGISLATION LIKE THE NORRIS
LAGUARDIA ACT.  THIS ACT ALTERED A LONG PROCESS OF JUDICIAL HISTORY,
BUT ALTERED IT BY A SCHEME OF COMPLICATED DEFINITIONS AND LIMITATIONS. 

THE GOVERNMENT HERE INVOKED THE AID OF A COURT OF EQUITY IN
CIRCUMSTANCES WHICH CERTAINLY WERE NOT COVERED BY THE ACT WITH
INESCAPABLE CLARITY.  COLLOQUIALLY SPEAKING, THE GOVERNMENT WAS
"RUNNING" THE MINES.  BUT IT WAS "RUNNING" THEM NOT AS AN EMPLOYER, IN
THE SENSE THAT THE OWNERS OF THE COAL MINES WERE THE EMPLOYERS OF THE
MEN THE DAY BEFORE THE GOVERNMENT SEIZED THE MINES.  NOR YET WAS THE
RELATION BETWEEN THE GOVERNMENT AND THE MEN LIKE THE RELATION OF THE
GOVERNMENT TO THE CIVIL SERVICE EMPLOYEES IN THE DEPARTMENT OF THE
INTERIOR.  IT WOULD BE NAIVE OR WILFUL TO ASSERT THAT THE SCOPE OF THE
NORRIS-LA GUARDIA ACT IN A SITUATION LIKE THAT PRESENTED BY THIS BILL
RAISED A QUESTION SO FRIVOLOUS THAT ANY JUDGE SHOULD HAVE SUMMARILY
THROWN THE GOVERNMENT OUT OF COURT WITHOUT DAY.  ONLY WHEN A COURT IS
SO OBVIOUSLY TRAVELING OUTSIDE ITS ORBIT AS TO BE MERELY USURPING
JUDICIAL FORMS AND FACILITIES, MAY AN ORDER ISSUED BY A COURT BE
DISOBEYED AND TREATED AS THOUGH IT WERE A LETTER TO A NEWSPAPER.  SHORT
OF AN INDISPUTABLE WANT OF AUTHORITY ON THE PART OF A COURT, THE VERY
EXISTENCE OF A COURT PRESUPPOSES ITS POWER TO ENTERTAIN A CONTROVERSY,
IF ONLY TO DECIDE, AFTER DELIBERATION, THAT IT HAS NO POWER OVER THE
PARTICULAR CONTROVERSY.  WHETHER A DEFENDANT MAY BE BROUGHT TO THE BAR
OF JUSTICE IS NOT FOR THE DEFENDANT HIMSELF TO DECIDE. 

TO BE SURE, AN OBVIOUS LIMITATION UPON A COURT CANNOT BE CIRCUMVENTED
BY A FRIVOLOUS INQUIRY INTO THE EXISTENCE OF A POWER THAT HAS
UNQUESTIONABLY BEEN WITHHELD.  THUS, THE EXPLICIT WITHDRAWAL FROM
FEDERAL DISTRICT COURTS OF THE POWER TO ISSUE INJUNCTIONS IN AN
ORDINARY LABOR DISPUTE BETWEEN A PRIVATE EMPLOYER AND HIS EMPLOYEES
CANNOT BE DEFEATED, AND AN EXISTING RIGHT TO STRIKE THEREBY IMPAIRED,
BY PRETENDING TO ENTERTAIN A SUIT FOR SUCH AN INJUNCTION IN ORDER TO
DECIDE WHETHER THE COURT HAS JURISDICTION.  IN SUCH A CASE, A JUDGE
WOULD NOT BE ACTING AS A COURT.  HE WOULD BE A PRETENDER TO, NOT A
WIELDER OF, JUDICIAL POWER. 

THAT IS NOT THIS CASE.  IT REQUIRED EXTENDED ARGUMENTS, LENGTHY
BRIEFS, STUDY AND REFLECTION PRELIMINARY TO ADEQUATE DISCUSSION IN
CONFERENCE, BEFORE FINAL CONCLUSIONS COULD BE REACHED REGARDING THE
PROPER INTERPRETATION OF THE LEGISLATION CONTROLLING THIS CASE.  A
MAJORITY OF MY BRETHREN FIND THAT NEITHER THE NORRIS-LAGUARDIA ACT NOR
THE WAR LABOR DISPUTES ACT LIMITED THE POWER OF THE DISTRICT COURT TO
ISSUE THE ORDERS UNDER REVIEW.  I HAVE COME TO THE CONTRARY VIEW.  BUT
TO SUGGEST THAT THE RIGHT TO DETERMINE SO COMPLICATED AND NOVEL AN
ISSUE COULD NOT BE BROUGHT WITHIN THE COGNIZANCE OF THE DISTRICT COURT,
AND EVENTUALLY OF THIS COURT, IS TO DENY THE PLACE OF THE JUDICIARY IN
OUR SCHEME OF GOVERNMENT.  AND IF THE DISTRICT COURT HAD POWER TO
DECIDE WHETHER THIS CASE WAS PROPERLY BEFORE IT, IT COULD MAKE
APPROPRIATE ORDERS SO AS TO AFFORD THE NECESSARY TIME FOR FAIR
CONSIDERATION AND DECISION WHILE EXISTING CONDITIONS WERE PRESERVED. 
TO SAY THAT THE AUTHORITY OF THE COURT MAY BE FLOUTED DURING THE TIME
NECESSARY TO DECIDE IS TO REJECT THE REQUIREMENTS OF THE JUDICIAL
PROCESS. 

IT DOES NOT MITIGATE SUCH DEFIANCE OF LAW TO URGE THAT HARD-WON
LIBERTIES OF COLLECTIVE ACTION BY WORKERS WERE AT STAKE.  THE MOST
PRIZED LIBERTIES THEMSELVES PRESUPPOSE AN INDEPENDENT JUDICIARY THROUGH
WHICH THESE LIBERTIES MAY BE, AS THEY OFTEN HAVE BEEN, VINDICATED. 
WHEN IN A REAL CONTROVERSY, SUCH AS IS NOW HERE, AN APPEAL IS MADE TO
LAW, THE ISSUE MUST BE LEFT TO THE JUDGMENT OF COURTS AND NOT THE
PERSONAL JUDGMENT OF ONE OF THE PARTIES.  THIS PRINCIPLE IS A POSTULATE
OF OUR DEMOCRACY. 

AND SO I JOIN THE OPINION OF THE COURT INSOFAR AS IT SUSTAINS THE
JUDGMENT FOR CRIMINAL CONTEMPT UPON THE BROAD GROUND OF VINDICATING THE
PROCESS OF LAW.  FN2  THE RECORDS OF THIS COURT ARE FULL OF CASES, BOTH
CIVIL AND CRIMINAL, INVOLVING LIFE OR LAND OR SMALL SUMS OF MONEY, IN
WHICH THE COURT PROCEEDED TO CONSIDER A FEDERAL CLAIM THAT WAS NOT
OBVIOUSLY FRIVOLOUS.  IT RETAINED SUCH CASES UNDER ITS POWER UNTIL
FINAL JUDGMENT, THOUGH THE CLAIM EVENTUALLY TURNED OUT TO BE UNFOUNDED
AND THE JUDGMENT WAS ONE DENYING THE JURISDICTION EITHER OF THIS COURT
OR OF THE COURT FROM WHICH THE CASE CAME.  IN THE CASE BEFORE US, THE
DISTRICT COURT HAD POWER "TO PRESERVE THE EXISTING CONDITIONS" IN THE
DISCHARGE OF "ITS DUTY TO PERMIT ARGUMENT AND TO TAKE THE TIME REQUIRED
FOR SUCH CONSIDERATION AS IT MIGHT NEED" TO DECIDE WHETHER THE
CONTROVERSY INVOLVED A LABOR DISPUTE TO WHICH THE NORRIS-LAGUARDIA ACT
APPLIED.  UNITED STATES V. SHIPP, 203 U.S. 563, 573, AND HOWAT V.
KANSAS, 258 U.S. 181. 

IN OUR COUNTRY LAW IS NOT A BODY OF TECHNICALITIES IN THE KEEPING OF
SPECIALISTS OR IN THE SERVICE OF ANY SPECIAL INTEREST.  THERE CAN BE NO
FREE SOCIETY WITHOUT LAW ADMINISTERED THROUGH AN INDEPENDENT
JUDICIARY.  IF ONE MAN CAN BE ALLOWED TO DETERMINE FOR HIMSELF WHAT IS
LAW, EVERY MAN CAN.  THAT MEANS FIRST CHAOS, THEN TYRANNY.  LEGAL
PROCESS IS AN ESSENTIAL PART OF THE DEMOCRATIC PROCESS.  FOR LEGAL
PROCESS IS SUBJECT TO DEMOCRATIC CONTROL BY DEFINED, ORDERLY WAYS WHICH
THEMSELVES ARE PART OF LAW.  IN A DEMOCRACY, POWER IMPLIES
RESPONSIBILITY.  THE GREATER THE POWER THAT DEFIES LAW THE LESS
TOLERANT CAN THIS COURT BE OF DEFIANCE.  AS THE NATION'S ULTIMATE
JUDICIAL TRIBUNAL, THIS COURT, BEYOND ANY OTHER ORGAN OF SOCIETY, IS
THE TRUSTEE OF LAW AND CHARGED WITH THE DUTY OF SECURING OBEDIENCE TO
IT. 

IT ONLY REMAINS TO STATE THE BASIS OF MY DISAGREEMENT WITH THE
COURT'S VIEWS ON THE BEARING OF THE NORRIS-LAGUARDIA ACT, 47 STAT. 70,
29 U.S.C. SEC. 101, AND THE WAR LABOR DISPUTES ACT, 57 STAT. 163, 50
U.S.C. APP. SEC. 1501.  AS TO THE FORMER, THE COURT RELIES ESSENTIALLY
ON A GENERAL DOCTRINE EXCLUDING THE GOVERNMENT FROM THE OPERATION OF A
STATUTE IN WHICH IT IS NOT NAMED, AND ON THE LEGISLATIVE HISTORY OF THE
ACT.  I FIND THE COUNTERVAILING CONSIDERATIONS WEIGHTIER.  THE NORRIS
LAGUARDIA ACT DEPRIVED THE FEDERAL COURTS OF JURISDICTION TO ISSUE
INJUNCTIONS IN LABOR DISPUTES EXCEPT UNDER CONDITIONS NOT HERE
RELEVANT.  THE QUESTION BEFORE A COURT OF EQUITY THEREFORE IS WHETHER A
CASE PRESENTS A LABOR DISPUTE AS DEFINED BY THE ACT.  SECTION 13(C)
DEFINES "LABOR DISPUTES": 

"THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING TERMS
OR CONDITIONS OF EMPLOYMENT ...  REGARDLESS OF WHETHER OR NOT THE
DISPUTANTS STAND IN THE PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE." 

THAT THE CONTROVERSY BEFORE THE DISTRICT COURT COMES WITHIN THIS
DEFINITION DOES NOT NEED TO BE LABORED.  THE CONTROVERSY ARISING UNDER
THE LEWIS-KRUG CONTRACT CONCERNED "TERMS OR CONDITIONS OF EMPLOYMENT"
AND WAS THEREFORE A "LABOR DISPUTE," WHATEVER FURTHER RADIATIONS THE
DISPUTE MAY HAVE HAD.  THE COURT DEEMS IT APPROPRIATE TO INTERPOLATE AN
EXCEPTION REGARDING LABOR DISPUTES TO WHICH THE GOVERNMENT IS A PARTY. 
IT INVOKES A CANON OF CONSTRUCTION ACCORDING TO WHICH THE GOVERNMENT IS
EXCLUDED FROM THE OPERATION OF GENERAL STATUTES UNLESS IT IS INCLUDED
BY EXPLICIT LANGUAGE. 

THE NORRIS-LAGUARDIA ACT HAS SPECIFIC ORIGINS AND DEFINITE PURPOSES
AND SHOULD NOT BE CONFINED BY AN ARTIFICIAL CANON OF CONSTRUCTION.  THE
TITLE OF THE ACT GIVES ITS SCOPE AND PURPOSE, AND THE TERMS OF THE ACT
JUSTIFY ITS TITLE.  IT IS AN ACT "TO DEFINE AND LIMIT THE JURISDICTION
OF COURTS SITTING IN EQUITY."  IT DOES NOT DEAL WITH THE RIGHTS OF
PARTIES BUT WITH THE POWER OF THE COURTS.  AGAIN AND AGAIN THE STATUTE
SAYS "NO COURT SHALL HAVE JURISDICTION," OR AN EQUIVALENT PHRASE. 
CONGRESS WAS CONCERNED WITH THE WITHDRAWAL OF POWER FROM THE FEDERAL
COURTS TO ISSUE INJUNCTIONS IN A DEFINED CLASS OF CASES.  NOTHING IN
THE ACT REMOTELY HINTS THAT THE WITHDRAWAL OF THIS POWER TURNS ON THE
CHARACTER OF THE PARTIES.  THE ONLY REFERENCE TO PARTIES UNDERSCORES
THEIR IRRELEVANCE TO THE ISSUE OF JURISDICTION, FOR THE POWER OF THE
COURTS IS WITHDRAWN IN A LABOR DISPUTE "REGARDLESS OF WHETHER OR NOT
THE DISPUTANTS STAND IN THE PROXIMATE RELATION OF EMPLOYER AND
EMPLOYEE."  THE LIMITATION ON THE JURISDICTION OF THE COURT DEPENDS
ENTIRELY ON THE SUBJECT MATTER OF THE CONTROVERSY.  SECTION 13(A)
DEFINES IT: 

"A CASE SHALL BE HELD TO INVOLVE OR TO GROW OUT OF A LABOR DISPUTE
WHEN THE CASE INVOLVES PERSONS WHO ARE ENGAGED IN THE SAME INDUSTRY,
TRADE, CRAFT, OR OCCUPATION; OR HAVE DIRECT OR INDIRECT INTERESTS
THEREIN; OR WHO ARE EMPLOYEES OF THE SAME EMPLOYER; OR WHO ARE MEMBERS
OF THE SAME OR AN AFFILIATED ORGANIZATION OF EMPLOYERS OR EMPLOYEES;
..."  NEITHER THE CONTEXT NOR THE CONTENT OF THE ACT QUALIFIES THE
TERMS OF THAT SECTION.  DID NOT THE SUIT BROUGHT BY THE GOVERNMENT
AGAINST LEWIS AND THE UNITED MINE WORKERS "GROW OUT OF A LABOR DISPUTE"
WITHIN THE TERMS OF SEC. 13(A)? 

AS ALREADY INDICATED, THE COURT NOW FINDS AN EXCEPTION TO THE
LIMITATION WHICH THE NORRIS-LAGUARDIA ACT PLACED UPON THE EQUITY
JURISDICTION OF THE DISTRICT COURT, NOT IN THE ACT BUT OUTSIDE IT.  IT
INVOKES A CANON OF CONSTRUCTION THAT A SOVEREIGN IS PRESUMPTIVELY NOT
INTENDED TO BE BOUND BY ITS OWN STATUTE UNLESS NAMED IN IT.  AT BEST,
THIS CANON, LIKE OTHER GENERALITIES ABOUT STATUTORY CONSTRUCTION, IS
NOT A RULE OF LAW.  WHATEVER PERSUASIVENESS IT MAY HAVE IN CONSTRUING A
PARTICULAR STATUTE DERIVES FROM THE SUBJECT MATTER AND THE TERMS OF THE
ENACTMENT IN ITS TOTAL ENVIRONMENT.  "THIS RULE HAS ITS HISTORICAL
BASIS IN THE ENGLISH DOCTRINE THAT THE CROWN IS UNAFFECTED BY ACTS OF
PARLIAMENT NOT SPECIFICALLY DIRECTED AGAINST IT....  THE PRESUMPTION IS
AN AID TO CONSISTENT CONSTRUCTION OF STATUTES OF THE ENACTING SOVEREIGN
WHEN THEIR PURPOSE IS IN DOUBT, BUT IT DOES NOT REQUIRE THAT THE AIM OF
A STATUTE FAIRLY TO BE INFERRED BE DISREGARDED BECAUSE NOT EXPLICITLY
STATED."  SO WROTE THE LATE CHIEF JUSTICE FOR THE WHOLE COURT IN UNITED
STATES V. CALIFORNIA, 297 U.S. 175, 186, AND THIS POINT OF VIEW WAS
VERY RECENTLY APPLIED IN UNITED STATES V. RICE, 327 U.S. 742, 749.  IT
IS ONE THING TO READ A STATUTE SO AS NOT TO BIND THE SOVEREIGN BY
RESTRICTIONS, OR TO IMPOSE UPON IT DUTIES, WHICH ARE APPLICABLE TO
ORDINARY CITIZENS.  IT IS QUITE ANOTHER TO INTERPOLATE INTO A STATUTE
LIMITING THE JURISDICTION OF A COURT, THE QUALIFICATION THAT SUCH
LIMITATION DOES NOT APPLY WHEN THE GOVERNMENT INVOKES THE
JURISDICTION.  NO DECISION OF THIS COURT GIVES COUNTENANCE TO SUCH A
DOCTRINE OF INTERPOLATION.  THE TEXT, CONTEXT, CONTENT AND HISTORICAL
SETTING OF THE NORRIS-LAGUARDIA ACT ALL CONVERGE TO INDICATE THE
UNRESTRICTED WITHDRAWAL BY CONGRESS FROM THE FEDERAL DISTRICT COURTS OF
THE POWER TO ISSUE INJUNCTIONS IN LABOR DISPUTES, EXCEPTING ONLY UNDER
CIRCUMSTANCES EXPLICITLY DEFINED AND NOT HERE PRESENT.  THE MEANING
WHICH A READING OF THE TEXT CONVEYS AND WHICH IS CONFIRMED BY THE
HISTORY WHICH LED CONGRESS TO FREE THE FEDERAL COURTS FROM
ENTANGLEMENTS IN THESE INDUSTRIAL CONTROVERSIES THROUGH USE OF THE
INJUNCTION, OUGHT NOT TO BE SUBORDINATED TO AN ABSTRACT CANON OF
CONSTRUCTION THAT CARRIES THE RESIDUAL FLAVOR OF THE DAYS WHEN A
PERSONAL SOVEREIGN WAS THE LAW-MAKER. 

MOREOVER, THE RULE PROVES TOO MUCH.  IF THE UNITED STATES MUST
EXPLICITLY BE NAMED TO BE AFFECTED, THE LIMITATIONS IMPOSED BY THE
NORRIS-LAGUARDIA ACT UPON THE DISTRICT COURT'S JURISDICTION COULD NOT
DEPRIVE THE UNITED STATES OF THE REMEDIES IT THERETOFORE HAD. 
ACCORDINGLY, THE COURTS WOULD NOT BE LIMITED IN THEIR JURISDICTION WHEN
THE UNITED STATES IS A PARTY AND THE ACT WOULD NOT APPLY IN ANY
PROCEEDING IN WHICH THE UNITED STATES IS COMPLAINANT.  IT WOULD MEAN
THAT, IN ORDER TO PROTECT THE PUBLIC INTEREST, WHICH MAY BE JEOPARDIZED
JUST AS MUCH WHETHER AN ESSENTIAL INDUSTRY CONTINUED UNDER PRIVATE
CONTROL OR HAS BEEN TEMPORARILY SEIZED BY THE GOVERNMENT, A COURT
COULD, AT THE BEHEST OF THE ATTORNEY GENERAL OF THE UNITED STATES,
ISSUE AN INJUNCTION AS COURTS DID WHEN THEY ISSUED THE DEBS, THE HAYES
AND THE RAILWAY SHOPMEN'S INJUNCTIONS.  FN3  BUT IT WAS THESE VERY
INJUNCTIONS, SECURED BY THE ATTORNEY GENERAL OF THE UNITED STATES UNDER
CLAIM OF COMPELLING PUBLIC EMERGENCY, THAT GAVE THE MOST POWERFUL
MOMENTUM TO THE ENACTMENT OF THE NORRIS-LAGUARDIA ACT.  THIS HISTORY IS
TOO FAMILIAR TO BE REHEARSED.  IT IS SURELY SURPRISING TO CONCLUDE THAT
WHEN A LONG AND PERSISTENT EFFORT TO TAKE THE FEDERAL COURTS OUT OF THE
INDUSTRIAL CONFLICT, INSOFAR AS THE LABOR INJUNCTION PUT THEM INTO IT,
FOUND ITS WAY TO THE STATUTE BOOKS, THE ACT FAILED TO MEET THE
GRIEVANCES THAT WERE MOST DRAMATIC AND DEEPEST IN THE MEMORY OF THOSE
MOST CONCERNED WITH THE LEGISLATION.    IT IS URGED, HOWEVER, THAT
LEGISLATIVE HISTORY CUTS DOWN WHAT MIGHT OTHERWISE BE THE SCOPE OF THE
ACT.  RELIANCE IS PLACED ON STATEMENTS BY TWO REPRESENTATIVES DURING
THE HOUSE DEBATES ON THE BILL, CALCULATED TO SHOW THAT CONGRESS
PURPOSED TO EXCLUDE FROM THE LIMITATION OF THE JURISDICTION OF THE
DISTRICT COURTS LABOR DISPUTES INVOLVING "EMPLOYEES" OF THE GOVERNMENT,
AT LEAST WHERE INJUNCTIONS ARE SOUGHT BY THE ATTORNEY GENERAL.  SINCE
BOTH STATEMENTS CAME FROM SPOKESMEN FOR THE BILL, THEY CARRY WEIGHT. 
THE NATURE OF THESE REMARKS, THE CIRCUMSTANCES UNDER WHICH THEY WERE
DELIVERED, AS WELL AS THEIR SETTING, DEFINE THEIR MEANING AND THE
SIGNIFICANCE TO BE GIVEN THEM AS A GLOSS UPON THE ACT. 

THERE WAS BEFORE THE HOUSE AN AMENDMENT BY REPRESENTATIVE BLANTON
WHICH WOULD HAVE MADE THE ACT APPLICABLE "EXCEPT WHERE THE UNITED
STATES GOVERNMENT IS THE PETITIONER."  (75 CONG. REC. 5503.) 
REPRESENTATIVE LAGUARDIA OPPOSED THE AMENDMENT, REMARKING "I DO NOT SEE
HOW IN ANY POSSIBLE WAY THE UNITED STATES CAN BE BROUGHT IN UNDER THE
PROVISIONS OF THIS BILL."  IF THIS IS TO BE READ APART FROM THE MEANING
AFFORDED BY THE CONTEXT OF THE DEBATES AND THE WHOLE COURSE OF THE
LEGISLATION, IT WOULD MEAN THAT THE JURISDICTION TO GRANT A DEBS
INJUNCTION CONTINUED UNAFFECTED.  NO ONE WOULD HAVE BEEN MORE STARTLED
BY SUCH A CONCLUSION THAN MR. LAGUARDIA.  THE FACT IS THAT A SITUATION
LIKE THE PRESENT, WHERE THE GOVERNMENT FOR A TIME HAS SOME RELATION TO
A LABOR DISPUTE IN AN ESSENTIALLY PRIVATE INDUSTRY, WAS EVIDENTLY NOT
IN THE THOUGHT OF CONGRESS.  CERTAINLY IT WAS NOT DISCUSSED.  MR.
LAGUARDIA'S STATEMENT REGARDING THE POSITION OF THE UNITED STATES UNDER
THE ACT FOLLOWED HIS READING OF SEC. 13(B) UNDER WHICH A PERSON IS TO
BE DEEMED INTERESTED IN A LABOR DISPUTE ONLY IF "ENGAGED IN THE SAME
INDUSTRY, TRADE, CRAFT, OR OCCUPATION IN WHICH SUCH DISPUTE OCCURS." 
HIS BRIEF, ELLIPTICAL REMARK PLAINLY CONVEYED THAT THE BUSINESS OF THE
GOVERNMENT OF THE UNITED STATES IS NOT AN "INDUSTRY, TRADE, CRAFT, OR
OCCUPATION."  THIS IS MADE UNEQUIVOCALLY CLEAR BY THE COLLOQUY THAT
FOLLOWED.  MR. BLANTON INQUIRED WHETHER MR. LAGUARDIA WAS WILLING "FOR
THE ARMY AND THE NAVY TO FORM A LABOR UNION AND AFFILIATE THEMSELVES
WITH THE AMERICAN FEDERATION OF LABOR AND NOT PERMIT THE GOVERNMENT OF
THE UNITED STATES TO PRESERVE ITS RIGHTS?"  THE SHORT ANSWER FOR MR.
LAGUARDIA TO HAVE MADE WAS "THE UNITED STATES IS NOT SUBJECT TO THE
PROVISIONS OF THE ACT, BECAUSE BY EMPLOYER WE MEAN A PRIVATE
EMPLOYER."  INSTEAD OF THAT, MR. LAGUARDIA REPLIED, "OH, THE ARMY AND
THE NAVY ARE NOT IN A TRADE, CRAFT, OR OCCUPATION."  IN SHORT, THE
SCOPE OF THE LIMITATION UPON THE JURISDICTION OF THE COURTS DEPENDED
NOT ON PARTY, BUT ON SUBJECT MATTER.  REPRESENTATIVE BLANTON'S
AMENDMENT WAS REJECTED BY 125 TO 21. 

THE SECOND REPRESENTATIVE UPON WHOM THE COURT RELIES IS MR.
MICHENER.  HE SAID, "BE IT REMEMBERED THAT THIS BILL DOES NOT ATTEMPT
TO LEGISLATE CONCERNING GOVERNMENT EMPLOYEES.  I DO NOT BELIEVE THAT
THE ENACTMENT OF THIS BILL INTO LAW WILL TAKE AWAY FROM THE FEDERAL
GOVERNMENT ANY RIGHTS WHICH IT HAS UNDER EXISTING LAW, TO SEEK AND
OBTAIN INJUNCTIVE RELIEF WHERE THE SAME IS NECESSARY FOR THE
FUNCTIONING OF THE GOVERNMENT."  (75 CONG. REC. 5464.)  LATER HE ADDED
"... THIS DEALS WITH LABOR DISPUTES BETWEEN INDIVIDUALS, NOT WHERE THE
GOVERNMENT IS INVOLVED.  IT IS MY NOTION THAT UNDER THIS BILL THE
GOVERNMENT CAN FUNCTION WITH AN INJUNCTION, IF THAT IS NECESSARY IN
ORDER TO CARRY OUT THE PURPOSE OF THE GOVERNMENT.  I SHOULD LIKE TO SEE
THIS CLARIFIED, BUT I WANT TO GO ON RECORD AS SAYING THAT UNDER MY
INTERPRETATION OF THIS BILL THE FEDERAL GOVERNMENT WILL NOT AT ANY TIME
BE PREVENTED FROM APPLYING FOR AN INJUNCTION, IF ONE IS NECESSARY IN
ORDER THAT THE GOVERNMENT MAY FUNCTION."  (ID. AT 5509.)  WHAT MR.
MICHENER GAVE AS HIS INTERPRETATION OF WHAT SURVIVED THE NORRIS
LAGUARDIA ACT, WAS PRECISELY THE CLAIM OF THE GOVERNMENT IN ASKING FOR
THE DEBS INJUNCTION.  THAT INJUNCTION WAS SOUGHT AND GRANTED IN ORDER
THAT THE GOVERNMENT MIGHT FUNCTION.  INSOFAR, THEN, AS MR. MICHENER'S
STATEMENTS IMPLY THAT THE UNITED STATES COULD AGAIN GET A DEBS
INJUNCTION, HIS UNDERSTANDING IS BELIED BY THE WHOLE HISTORY OF THE
LEGISLATION, AS REFLECTED IN ITS TERMS.  FN4  THESE STATEMENTS CAN ONLY
MEAN, THEN, THAT IF, SAY, EMPLOYEES IN THE TREASURY DEPARTMENT HAD TO
BE ENJOINED SO THAT GOVERNMENT COULD GO ON, IT WAS REPRESENTATIVE
MICHENER'S VIEW THAT AN INJUNCTION COULD ISSUE.  NO ATTEMPT WAS MADE TO
MAKE THIS VIEW EXPLICIT IN THE ACT.  IT WAS NOT DISCUSSED, AND ONLY ONE
STATEMENT APPEARS TO SHARE IT.  FN5  IN ANY EVENT, IT DOES NOT IMPLY A
BROADER EXEMPTION THAN THAT OF WHICH REPRESENTATIVE LAGUARDIA SPOKE. 

IT IS TO BE NOTED THAT THE DISCUSSION IN THE HOUSE FOLLOWED PASSAGE IN
THE SENATE OF THAT WHICH SUBSEQUENTLY BECAME THE ACT.  IT IS A MATTER
OF HISTORY THAT THE SENATE JUDICIARY COMMITTEE WAS THE DRAFTING AND
DRIVING FORCE BEHIND THE BILL.  THE BILL HAD EXTENDED CONSIDERATION BY
A SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE FOLLOWED BY WEIGHTY
REPORTS AND FULL DISCUSSION ON THE SENATE FLOOR.  WE ARE NOT POINTED TO
A SUGGESTION OR A HINT IN THE SENATE PROCEEDINGS THAT THE WITHDRAWAL OF
JURISDICTION TO ISSUE INJUNCTIONS IN LABOR DISPUTES WAS SUBJECT TO A
LATENT EXCEPTION AS TO INJUNCTIONS SOUGHT BY THE GOVERNMENT.  THE WHOLE
CONTEMPORANEOUS HISTORY IS AGAINST IT.  THE EXPERIENCE WHICH GAVE RISE
TO THE NORRIS-LAGUARDIA ACT ONLY UNDERSCORES THE UNRESTRICTED
LIMITATION UPON THE JURISDICTION OF THE COURTS, EXCEPT IN SITUATIONS OF
WHICH THIS IS NOT ONE.  TO FIND IMPLICATIONS IN THE FACT THAT IN THE
COURSE OF THE DEBATES IT WAS NOT EXPLICITLY ASSERTED THAT THE DISTRICT
COURTS COULD NOT ISSUE AN INJUNCTION IN A LABOR CONTROVERSY EVEN AT THE
BEHEST OF THE GOVERNMENT IS TO FIND THE SILENCE OF CONGRESS MORE
REVEALING THAN THE NATURAL MEANING OF LEGISLATION AND THE HISTORY WHICH
BEGOT IT.  THE REMARKS OF MR. LAGUARDIA AND MR. MICHENER OUGHT NOT TO
BE MADE THE EQUIVALENT OF WRITING AN AMENDMENT INTO THE ACT.  IT IS ONE
THING TO DRAW ON ALL RELEVANT AIDS FOR SHEDDING LIGHT ON THE DARK
PLACES OF A STATUTE.  TO ALLOW INEXPLICIT REMARKS IN THE GIVE-AND-TAKE
OF DEBATE TO CONTRADICT THE VERY TERMS OF LEGISLATION AND THE HISTORY
BEHIND IT IS TO PUT OUT THE CONTROLLING LIGHT ON MEANING SHED BY THE
EXPLICIT PROVISIONS OF AN ACT IN ITS SETTING. 

BUT EVEN IF WE ASSUME THAT THE ACT WAS NOT INTENDED TO APPLY TO LABOR
DISPUTES INVOLVING "EMPLOYEES" OF THE UNITED STATES, ARE THE MINERS IN
THE CASE BEFORE US "EMPLOYEES" OF THE UNITED STATES WITHIN THE MEANING
OF THIS INTERPOLATED EXCEPTION?  IT CAN HARDLY BE DENIED THAT THE
RELATION OF THE MINERS TO THE UNITED STATES IS A HYBRID ONE.  CLEARLY,
THEY HAVE A RELATION TO THE GOVERNMENT OTHER THAN THAT OF EMPLOYEES OF
PLANTS NOT UNDER GOVERNMENT OPERATION.  EQUALLY CLEARLY, THEY HAVE A
RELATION AND A STATUS DIFFERENT FROM THE RELATION AND STATUS OF THE
CLERKS AT THE TREASURY DEPARTMENT.  NEVER IN THE COUNTRY'S HISTORY HAVE
THE TERMS OF EMPLOYMENT OF THE MILLIONS IN GOVERNMENT SERVICE BEEN
ESTABLISHED BY COLLECTIVE BARGAINING.  BUT THE CONDITIONS OF EMPLOYMENT
- HOURS, WAGES, HOLIDAYS, VACATIONS, HEALTH AND WELFARE PROGRAM, ETC. -
WERE SO FIXED FOR THE MINERS DURING THE PERIOD OF GOVERNMENT SEIZURE. 
THE PROPER INTERPRETATION OF THIS COLLECTIVE AGREEMENT BETWEEN THE
GOVERNMENT AND THE UNITED MINE WORKERS IS PRECISELY WHAT IS AT THE
BOTTOM OF THIS CONTROVERSY.  NEITHER A SPONTANEOUS NOR A SOPHISTICATED
CHARACTERIZATION WOULD RESORT TO THE PHRASE "GOVERNMENT EMPLOYEES"
WITHOUT MORE, IN SPEAKING OF THE MINERS DURING THE OPERATION OF THE
MINES BY THE GOVERNMENT.  THE ONLY CONCRETE CHARACTERIZATION OF THE
STATUS OF EMPLOYEES IN SEIZED PLANTS WAS EXPRESSED BY UNDER SECRETARY
PATTERSON AT A HEARING ON THE PREDECESSOR BILL TO THAT WHICH BECAME THE
LAW UNDER WHICH THIS SEIZURE WAS MADE.  HE SPOKE OF THE ROLE OF THE
GOVERNMENT AS THAT OF "A RECEIVER THAT WOULD BE CHARGED WITH THE
CONTINUITY OF OPERATION OF THE PLANT."  FN6  NOTHING IN THE ACTS
AUTHORIZING SEIZURE OF PRIVATE PLANTS INDICATES THAT THE EMPLOYEES OF
THESE PLANTS WERE TO BE CONSIDERED EMPLOYEES OF THE UNITED STATES IN
THE USUAL AND NATURAL MEANING OF THE TERM.  IN THE FULL DEBATES ON
BILLS PROVIDING FOR GOVERNMENT SEIZURE OF PLANTS, CONGRESSIONAL LEADERS
CLEARLY INDICATED THEIR UNDERSTANDING THAT AS THE LAW THEN STOOD THERE
COULD BE NO INJUNCTIONS IN LABOR DISPUTES IN SEIZED PLANTS.  FN7 

BUT NOT ONLY WAS SUCH THE UNDERSTANDING WHEN THE LEGAL QUESTION
EMERGED IN THE COURSE OF CONSIDERING THE NEED OF WAR LEGISLATION. 
RECENT LEGISLATION AND ITS HISTORY ARE RELEVANT NOT MERELY BECAUSE THEY
SHOW LATER UNDERSTANDING OF THE TERMS OF AN OLDER STATUTE.  THE WAR
LABOR DISPUTES ACT OF 1943 IS DIRECTLY AND PRIMARILY INVOLVED IN THIS
CASE.  THE WHOLE CONTROVERSY ARISES UNDER THE AUTHORITY TO SEIZE MINES
GIVEN BY THAT ACT.  THE REAL QUESTION BEFORE US IS WHETHER IN
AUTHORIZING SUCH SEIZURE AND OPERATION CONGRESS ALSO GAVE TO THE UNITED
STATES THE RIGHT TO PREVENT INTERFERENCE WITH ITS STATUTORY OPERATION
THROUGH THE EQUITABLE REMEDIES HERE INVOKED. 

BY THE WAR LABOR DISPUTES ACT, CONGRESS CREATED A NEW RELATIONSHIP
AMONG THE GOVERNMENT, THE PLANT OWNERS, THE EMPLOYEES.  THE RIGHTS,
DUTIES, REMEDIES INCIDENT TO THAT RELATION ARE THOSE GIVEN BY THE ACT. 
CONGRESS NATURALLY ADDRESSED ITSELF TO POSSIBLE INTERFERENCES WITH THE
GOVERNMENT'S OPERATION OF SEIZED PLANTS.  IT DEALT SPECIFICALLY WITH
THIS SUBJECT.  IT GAVE THE GOVERNMENT SPECIFIC REMEDIES WHICH IT MIGHT
INVOKE AGAINST SUCH INTERFERENCE.  FN8  REMEDY BY INJUNCTION WAS NOT
GIVEN.  IT WAS NOT MERELY OMITTED.  A FAIR READING OF THE LEGISLATIVE
HISTORY SHOWS THAT IT WAS EXPRESSLY AND DEFINITIVELY DENIED.  AS
REPORTED OUT OF THE SENATE COMMITTEE, S. 796 PROVIDED FOR PLANT
SEIZURE.  IT DID NOT INCLUDE THE INJUNCTION AMONG THE REMEDIES FOR
INTERFERENCE WITH GOVERNMENT OPERATION.  FN9  BUT WHEN THE BILL REACHED
THE FLOOR OF THE SENATE, SENATOR CONNALLY, SPONSOR OF THE BILL, OFFERED
AND URGED AN AMENDMENT GIVING THE DISTRICT COURTS JURISDICTION TO
RESTRAIN VIOLATIONS OF THE MEASURE.  FN10  HE ACCEPTED, SOMEWHAT
RELUCTANTLY, THE AMENDMENT OF SENATOR WAGNER TO LIMIT THE PROPOSED
AMENDMENT TO AN INJUNCTION AT THE BEHEST OF THE ATTORNEY GENERAL,
PRECISELY AS WAS HERE SOUGHT AND GRANTED.  FN11  ON MOTION OF SENATOR
DANAHER, THIS PROPOSAL WAS REJECTED BY THE SENATE AFTER FULL DEBATE,
FN12  PARTICIPATED IN BY SENATORS ESPECIALLY CONVERSANT WITH THE
HISTORY AND SCOPE OF THE EXISTING REMEDIES AVAILABLE TO THE
GOVERNMENT.  WITH THIS REMEDY DENIED TO THE GOVERNMENT, THE BILL WAS
PASSED AND SENT TO THE HOUSE.  FN13  THE HOUSE DID NOT LIKE THE BILL. 
ITS VERSION DID NOT SEE FIT SPECIFICALLY TO ADD TO THE LIMITED SEIZURE
PROVISIONS OF THE SELECTIVE SERVICE ACT OF 1940, ALTHOUGH APPARENTLY IT
ASSUMED THAT THERE COULD BE SEIZURE UNDER EXISTING LAW IN THE CASE OF
FAILURE BY DEFENSE PLANTS TO PRODUCE AS A RESULT OF LABOR TROUBLES. 
INSTEAD, THE HOUSE VERSION PROVIDED STRINGENT ANTI-STRIKE AND ANTI
LOCKOUT PROVISIONS AS TO PLANTS IN PRIVATE OPERATION, AND BY SPECIFIC
AMENDMENT TO THE NORRIS-LAGUARDIA ACT THE DISTRICT COURTS WERE
AUTHORIZED TO RESTRAIN VIOLATIONS OF SUCH PROVISIONS.  BUT THIS PRO
TANTO REPEAL OF THE NORRIS-LAGUARDIA ACT WAS NOT MADE AVAILABLE TO THE
UNITED STATES AS A REMEDY AGAINST INTERFERENCE WITH OPERATION OF PLANTS
SEIZED UNDER THE EARLIER, 1940 ACT.  FN14 

THE BILL THEN WENT TO CONFERENCE.  WHAT CAME OUT WAS, SO FAR AS HERE
MATERIAL, THE BILL THAT HAD PASSED THE SENATE.  THE UNITED STATES WAS
GRANTED POWER TO SEIZE AND OPERATE DEFENSE PLANTS WHOSE PRODUCTION WAS
HAMPERED BY LABOR DISPUTES.  SPECIFIC REMEDIES WERE FORMULATED BY
CONGRESS AGAINST INTERFERENCE WITH THE GOVERNMENT'S OPERATION.  THE
INJUNCTION WAS NOT INCLUDED.  FN15  IN NEITHER HOUSE WAS FURTHER
ATTEMPT MADE TO REINTRODUCE THE CONNALLY PROPOSAL GIVING THE GOVERNMENT
RELIEF BY INJUNCTION.  NOR WAS IT SUGGESTED THAT THE GOVERNMENT HAD
SUCH REDRESS UNDER EXISTING LAW.  ON THE FLOOR OF THE SENATE, SENATOR
THOMAS OF UTAH, CHAIRMAN OF THE COMMITTEE ON EDUCATION AND LABOR,
SAID: 

"MR. PRESIDENT, I ASK THE SENATOR FROM NEW MEXICO (MR. HATCH), THE
SENATOR FROM CONNECTICUT (MR. DANAHER), AND THE SENATOR FROM TEXAS (MR.
CONNALLY), THE SPONSOR OF THE BILL, WHETHER THERE IS A UNANIMOUS
OPINION ON THE PART OF THOSE THREE GREAT LAWYERS THAT THERE WILL NOT BE
A REOPENING OF THE DISTRICT COURTS TO INDUSTRY-LABOR DISPUTES?...  I
SHOULD LIKE THAT POINT TO BE MADE SO FIRMLY AND SO STRONGLY THAT NO
LAWYER IN THE LAND WHO WOULD LIKE TO TAKE ADVANTAGE OF THE SITUATION
CREATED BY THE MERE MENTION OF THE WORDS 'DISTRICT COURT' WILL RESORT
TO THE COURT IN ORDER TO CONFUSE OUR INDUSTRY-LABOR RELATIONS." 

MR. CONNALLY ANSWERED: 

"MR. PRESIDENT,  ...  I THINK I SPEAK FOR THE SENATOR FROM VERMONT
AND THE SENATOR FROM NEW MEXICO AND THE SENATOR FROM CONNECTICUT AND
ALSO THE SENATOR FROM INDIANA (MR. VAN NUYS), ALTHOUGH HE IS NOT
PRESENT, WHEN I SAY THAT THERE IS NO JURISDICTION WHATEVER CONFERRED BY
THIS BILL PROVIDING FOR RESORT TO THE UNITED STATES DISTRICT COURT,
EXCEPT THE ONE MENTIONED BY THE SENATOR FROM CONNECTICUT, WHICH IS
MERELY THE RIGHT TO GO THERE FOR A CIVIL ACTION FOR DAMAGES, AND NO
JURISDICTION WHATEVER IS GIVEN OVER LABOR DISPUTES.  DOES THAT ANSWER
THE SENATOR?" 

"MR. THOMAS OF UTAH.  I THANK THE SENATOR FOR MAKING THAT STATEMENT
AND I HOPE IT WILL SATISFY THE LAWYERS OF THE COUNTRY.    "MR.
CONNALLY.  I AM SURE IT WILL."  FN16 

UNDER THESE CIRCUMSTANCES THE BILL BECAME LAW, AND THE SEIZURE GIVING
RISE TO THIS CONTROVERSY WAS MADE UNDER THAT LAW.  THE SEPARATE ITEMS
OF THIS LEGISLATIVE HISTORY CANNOT BE JUDGED IN ISOLATION.  THEY MUST
BE CONSIDERED TOGETHER, AND AS PART OF THE COURSE OF LEGISLATION
DEALING WITH INJUNCTIONS IN LABOR DISPUTES.  TO FIND THAT THE
GOVERNMENT HAS THE RIGHT WHICH SENATOR CONNALLY'S AMENDMENT SOUGHT TO
CONFER BUT WHICH THE CONGRESS WITHHELD IS TO SAY THAT VOTING DOWN THE
AMENDMENT HAD THE SAME EFFECT AS VOTING IT UP. 

EVENTS SINCE THE PASSAGE OF THE ACT UNDERSCORE WHAT WOULD APPEAR TO
BE THE CONTROLLING LEGISLATIVE HISTORY OF THE WAR LABOR DISPUTES ACT,
AND PROVE THAT CONGRESS SAW FIT NOT TO AUTHORIZE DISTRICT COURTS TO
ISSUE AN INJUNCTION IN CASES LIKE THIS.  TO MEET THE GRAVE CRISIS
GROWING OUT OF THE STRIKE ON THE RAILROADS LAST MAY, CONGRESS, UPON THE
RECOMMENDATION OF THE PRESIDENT AND THE ATTORNEY GENERAL, DEEMED
ADDITIONAL LEGISLATION NECESSARY FOR DEALING WITH LABOR DISPUTES.  THE
PROPOSALS IN EACH HOUSE CARRIED A PROVISION WHICH AUTHORIZED AN
INJUNCTION TO ISSUE FOR VIOLATION OF THE WAR LABOR DISPUTES ACT.  FN17
SENATOR MEAD PROPOSED AN AMENDMENT TO DELETE THE PROVISIONS FOR
INJUNCTIONS.  FN18  IN THE DEBATES THAT FOLLOWED NO ONE SUGGESTED THAT
THE NEW PROPOSAL WAS UNNECESSARY, THAT THE JURISDICTION PROPOSED TO BE
CONFERRED ALREADY EXISTED, OR THAT IF GRANTED, AS REQUESTED BY THE
ATTORNEY GENERAL, IT WOULD NOT, AS SENATOR MEAD CLAIMED, REPEAL PRO
TANTO THE NORRIS-LAGUARDIA ACT.  THE DEBATES SHOW CLEARLY THAT WHAT WAS
CONTEMPLATED WAS A CHANGE IN THE WAR LABOR DISPUTES ACT, WHEREBY A NEW
AND AN ADDITIONAL REMEDY WOULD BE AUTHORIZED.  FN19  THE BILL NEVER
BECAME LAW. 

AS IS WELL KNOWN, AS THE DEBATES CLEARLY SHOW, AS SENATOR CONNALLY
ADMITTED, THE WAR LABOR DISPUTES ACT WAS DIRECTED PRIMARILY AGAINST
STOPPAGE IN THE COAL MINES.  FN20  THE SITUATION THAT CONGRESS FEARED
WAS EXACTLY THAT WHICH HAS OCCURRED AND WHICH UNDERLIES THIS
CONTROVERSY.  TO DEAL WITH THE SITUATION, CONGRESS GAVE THE UNITED
STATES THE POWER TO SEIZE THE MINES.  TO EFFECTUATE THIS POWER, THE
GOVERNMENT WAS GIVEN AUTHORITY TO INVOKE CRIMINAL PENALTIES FOR
INTERFERENCES WITH THE OPERATION OF THE MINES.  SENATOR CONNALLY SOUGHT
MORE.  HE WANTED CONGRESS TO EMPOWER THE DISTRICT COURTS TO ENJOIN
INTERFERENCE.  THE SENATE DID NOT WANT AN INJUNCTION TO ISSUE AND VOTED
THE PROPOSAL DOWN.  THE SENATE'S POSITION WAS ADOPTED BY THE CONFERENCE
COMMITTEE.  THE HOUSE OF REPRESENTATIVES YIELDED ITS VIEW AND APPROVED
THE CONFERENCE REPORT.  THE WHOLE COURSE OF LEGISLATION INDICATES THAT
CONGRESS WITHHELD THE REMEDY OF INJUNCTION.  THIS COURT NOW HOLDS THAT
CONGRESS AUTHORIZED THE INJUNCTION. 

I CONCUR IN THE COURT'S OPINION INSOFAR AS IT IS NOT INCONSISTENT
WITH THESE VIEWS, AND, UNDER THE COMPULSION OF THE RULING OF THE
MAJORITY THAT THE COURT BELOW HAD JURISDICTION TO ISSUE ITS ORDERS, I
JOIN IN THE COURT'S JUDGMENT. 

FN1  POUND, THE FUTURE OF LAW (1937) 47 YALE L.J. 1, 13. 

FN2  SINCE, IN MY VIEW, THIS WAS NOT A CONVICTION FOR CONTEMPT IN A
CASE "ARISING UNDER THIS ACT," THE JURY PROVISIONS OF SEC. 11 OF THE
NORRIS-LAGUARDIA ACT DO NOT APPLY.  FOR OBVIOUS REASONS, THE
PETITIONERS DO NOT CLAIM THAT THE CONSTITUTION OF THE UNITED STATES
AFFORDS THEM A RIGHT TO TRIAL BY JURY. 

FN3  UNITED STATES V. DEBS, 64 F. 724; 158 U.S. 564; UNITED STATES V.
HAYES, UNREPORTED, D. IND. 1919; UNITED STATES V. RAILWAY EMPLOYEES'
DEPT. A.F.L., 283 F. 479, 286 F. 228, 290 F. 978. 

FN4  COMPARE REPRESENTATIVE LAGUARDIA'S REPLY TO A PROPOSED AMENDMENT
BY REPRESENTATIVE BECK WHICH WOULD HAVE EXEMPTED FROM THE OPERATION OF
THE ACT DISPUTES "WHERE THE WELFARE, HEALTH, OR LIVES OF A PUBLIC ARE
CONCERNED WHO ARE NOT PARTIES TO SUCH LABOR DISPUTE, OR WHERE A LABOR
DISPUTE INVOLVES THE OBSTRUCTION OF ANY INSTRUMENTALITY OF INTERSTATE
OR FOREIGN COMMERCE."  MR. LAGUARDIA CLAIMED THAT THE AMENDMENT WAS OUT
OF ORDER BECAUSE NOT GERMANE TO THE PURPOSES OF THE LEGISLATION.  "THE
PRESENT BILL REFERS ONLY TO DISPUTES BETWEEN EMPLOYEES AND EMPLOYER
... THE PUBLIC IS FULLY PROTECTED BY PENAL AND OTHER STATUTES  ..."  75
CONG. REC. 5503. 

FN5  SEE STATEMENT OF REPRESENTATIVE SCHNEIDER, 75 CONG. REC. 5514. 

FN6  HEARINGS ON S. 2054 BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON
THE JUDICIARY, SENATE, 77TH CONG., 1ST SESS., P. 14.  THE
CHARACTERIZATION WAS ACCEPTED BY MEMBERS OF THE COMMITTEE WHICH
APPROVED THE BILL.  ID. AT PP. 16, 18, 130.  SENATOR CONNALLY REFERS TO
THE PRIVATE EMPLOYER WHO "WILL CONTINUE TO OPERATE IT UNDER THE
SUPERVISION OF THE GOVERNMENT."  ID. AT 55.  SEE ALSO P. 57.  WHILE AT
ONE POINT HE REFERRED TO THE UNITED STATES AS AN EMPLOYER (ID. AT 120),
HE DID SO IN A SPECIAL CONTEXT FOR THE PURPOSES OF A DISCUSSION ABOUT
COLLECTIVE BARGAINING WITH REFERENCE TO WAGES.  AS TO WAGES, OF COURSE,
THE GOVERNMENT WOULD STAND IN LOCO "EMPLOYER" DURING ITS OPERATION OF
THE PLANT. 

THE ANALOGY OF EQUITY RECEIVERSHIP IS NOT INAPT.  IN A LIMITED SENSE,
EMPLOYEES OF PLANTS IN RECEIVERSHIP IN A FEDERAL COURT MAY BE
CONSIDERED EMPLOYEES OF THE UNITED STATES, SINCE THE OPERATION OF THE
PLANT IS UNDER THE JURISDICTION AND CONTROL OF A UNITED STATES
OFFICER.  BUT NO ONE AWARE OF THE BACKGROUND OF MISCHIEF WHICH THE ACT
WAS INTENDED TO REMEDY COULD FIND AN INTENTION IN CONGRESS TO ALLOW
INJUNCTIONS IN LABOR DISPUTES INVOLVING PLANTS IN RECEIVERSHIP. 
COMPARE TRAINMEN V. TOLEDO, P. & W.R. CO., 321 U.S. 50, 55, 58-61.  NO
SERIES OF CASES CONTRIBUTED MORE TO THE FEELING THAT THE FEDERAL COURTS
ABUSED THEIR EQUITY JURISDICTION THAN THOSE INVOLVING EMPLOYEES OF
RAILROADS IN EQUITY RECEIVERSHIP.  SEE, E.G., 1 GRESHAM, LIFE OF WALTER
QUINTIN GRESHAM, CC. XXIII TO XXV; GREGORY, LABOR AND THE LAW, 95-97;
NELLES, A STRIKE AND ITS LEGAL CONSEQUENCES - AN EXAMINATION OF THE
RECEIVERSHIP PRECEDENT FOR THE LABOR INJUNCTION (1931) 40 YALE L.J.
507, PASSIM.  IF INJUNCTIONS WILL NOT ISSUE IN DISPUTES INVOLVING
EMPLOYEES OF RAILROADS OR OTHER INDUSTRIES IN RECEIVERSHIP UNDER
OPERATION BY THE FEDERAL COURTS, NOTHING RELEVANT TO THE CONSTRUCTION
OF THE STATUTE WARRANTS THE INFERENCE THAT CONGRESS ALLOWED THE
INJUNCTION TO BE AVAILABLE IN DISPUTES INVOLVING EMPLOYEES OF PLANTS IN
"RECEIVERSHIP" UNDER OPERATION OF THE SECRETARY OF THE INTERIOR. 

FN7  SEE ESPECIALLY THE DEBATES ON A PROPOSED AMENDMENT TO THE SMITH
CONNALLY BILL WHEREBY SENATOR CONNALLY SOUGHT TO ADD THE INJUNCTION AS
A REMEDY AGAINST VIOLATION OF THE ACT. 

"MR. CONNALLY....  THE PROVISION IS LIMITED TO PLANTS WHICH THE
GOVERNMENT TAKES OVER.  IT WOULD NOT CHANGE THE NORRIS-LAGUARDIA ACT IN
ANY RESPECT, EXCEPT IN THE ONE PARTICULAR CASE  ... 

     .         .       .         .         . 

"MR. LANGER.  MR. PRESIDENT, IS IT NOT TRUE THAT UNLESS SECTION 5 IS
STRICKEN FROM THE BILL THAT A PORTION OF THE NORRIS-LAGUARDIA ACT WILL
BE REPEALED? 

"MR. DANAHER.  IT WOULD CERTAINLY BE OVERRIDDEN; ...."  89 CONG. REC.
3988-89. 

SEE ALSO THE STATEMENTS OF SENATORS TAFT, VANDENBERG, AND WAGNER, AND
COMPARE THOSE OF SENATORS REVERCOMB AND BARKLEY; AND SEE THE COLLOQUY
BETWEEN SENATORS CONNALLY AND VANDENBERG, ID. AT 3906, QUOTED INFRA
NOTE 10. 

FN8  57 STAT. 163, 165-66, 50 U.S.C. APP. SEC. 1506(B). 

FN9  S. REP. NO. 147, 78TH CONG., 1ST SESS. 

FN10  89 CONG. REC. 3809.  AND SEE P. 3906: 

"MR. VANDENBERG.... 

"I AM VERY ANXIOUS THAT THERE SHALL BE ADDITIONAL STATUTORY
PROTECTION TO THE UNINTERRUPTED PRODUCTION OF WAR NECESSITIES, BUT I AM
WONDERING WHETHER IN ORDER TO ACHIEVE THAT PURPOSE IT IS NECESSARY FOR
ME TO IMPINGE UPON A VERY PROFOUND HOSTILITY I HAVE ALWAYS HAD TO THE
USE OF INJUNCTIONS IN LABOR DISPUTES.  I VOTED FOR THE ORIGINAL NORRIS
LAGUARDIA ACT, AND I HAVE ALWAYS FELT THAT ONE OF THE MOST USEFUL
THINGS WE EVER DID, NOT ONLY AS A MATTER OF FAIR PLAY, BUT IN RESPECT
TO THE STATUS OF THE COURTS WAS SUBSTANTIALLY TO SEPARATE FROM COURT
JURISDICTION THE RESPONSIBILITY OF, IN EFFECT, UMPIRING LABOR
DISPUTES. 

"WHAT I WISH TO ASK THE ABLE SENATOR FROM TEXAS, IF I MAY, IS THIS:
IN HIS PROPOSAL, ON PAGE 4, IT IS PROVIDED THAT ANY PERSON WHO
WILLFULLY VIOLATES ANY PROVISION OF THE ACT IS TO BE GUILTY OF A
FELONY, AND SUBJECT TO A FINE OR IMPRISONMENT.  IS NOT THAT A
CONCLUSIVE PENALTY?  IS IT NECESSARY IN ADDITION TO GO BACK INTO ALL
THE OLD INJUNCTIVE PROCESS IN CONNECTION WITH LABOR DISPUTES? 

"MR. CONNALLY.  THAT IS NOT A LEGAL INQUIRY REALLY.  OF COURSE, IT
MIGHT BE THAT WE COULD GET ALONG WITHOUT THE PROVISION.  LIKE THE
SENATOR, I VOTED FOR THE NORRIS-LAGUARDIA ACT, AND I FAVORED THE POLICY
EMBODIED THEREIN.  THIS PROVISION, HOWEVER, APPLIES ONLY TO PLANTS
TAKEN OVER BY THE GOVERNMENT.  IT SEEMS TO ME THAT IF THE GOVERNMENT IS
TO OPERATE A PLANT, IT SHOULD HAVE THE WIDEST AND THE FULLEST AUTHORITY
TO OPERATE IT AS IT WANTS TO DO AND TO PREVENT INTERRUPTION. 
THEREFORE, BECAUSE OF THE ATTITUDE OF SOME WHO WERE INTERESTED IN THE
BILL, I INSERTED SECTION 5.  I DO NOT THINK THE BILL WOULD BE VERY
SERIOUSLY CRIPPLED IF IT WERE ELIMINATED, BUT I THINK IT IS IMPROVED BY
ITS REMAINING IN.  I DO NOT THINK IT WOULD BE FATAL TO STRIKE OUT THAT
PROVISION, BUT I HOPE THAT WILL NOT BE DONE. 

"MR. VANDENBERG.  I THANK THE SENATOR FOR HIS FRANK STATEMENT.  WHEN
THE GOVERNMENT HAS TAKEN OVER THE OPERATION OF A PLANT AND IT BECOMES
IN ESSENCE A GOVERNMENT OPERATION, IT IS RATHER DIFFICULT TO RESIST THE
ARGUMENT THAT THE GOVERNMENT SHOULD NOT BE DEPRIVED OF ANY
INSTRUMENTALITY IN THE ENFORCEMENT, VIRTUALLY, OF ITS SOVEREIGNTY. 

"MR. CONNALLY.  THAT IS TRUE. 

"MR. VANDENBERG.  NEVERTHELESS, I APPREHEND THAT THE VERY FACT THAT
THE INJUNCTIVE PROCESS IS RESTORED IN THE SENATOR'S BILL IS THE REASON
WHY IT APPEARS IN THE ADDITIONAL AMENDMENT OFFERED BY THE ABLE SENATOR
FROM OHIO, WHERE, IT SEEMS TO ME, IT BECOMES DECIDEDLY MORE OFFENSIVE,
USING THAT WORD IN THE SENSE IN WHICH I HAVE USED IT." 

THE REFERENCE IS TO AN AMENDMENT PROPOSED BY SENATOR TAFT AUTHORIZING
INJUNCTIONS IN ANY CIRCUIT COURT OF APPEALS AT THE REQUEST OF THE
ATTORNEY GENERAL IN CASE OF FAILURE TO OBEY ORDERS OF THE WAR LABOR
BOARD, OR WHENEVER "OPERATIONS ARE HINDERED OR REDUCED BY LOCK-OUT,
STRIKE, OR OTHERWISE."  THIS APPLIED APPARENTLY TO PLANTS IN PRIVATE
OPERATION.  89 CONG. REC. 3897-98.  COMPARE THE BILL PASSED BY THE
HOUSE, NOTE 14. 

FN11  89 CONG. REC. 3907, 3988-89. 

FN12  ID. AT 3989. 

FN13  ID. AT 3993. 

FN14  COMPARE SEC. 4(B) AND (C) WITH SEC. 12(A) AND (B), 89 CONG.
REC. 5382-83.  FOR THE EARLIER SEIZURE PROVISIONS SEE 54 STAT. 885,
892, 50 U.S.C. APP. SEC. 309. 

FN15  SEE CONFERENCE REPORT ON S. 796, H. REP. NO. 531, 78TH CONG.,
1ST SESS. 

FN16  89 CONG. REC. 5754.  THE SENATORS MENTIONED BY MR. CONNALLY
WERE THE MANAGERS ON THE PART OF THE SENATE OF THE BILL IN CONFERENCE. 

FN17  H.R. 6578, 79TH CONG., 2D SESS. 

FN18  92 CONG. REC. 6019. 

FN19  SEE, PARTICULARLY, THE STATEMENTS OF SENATOR MEAD (PP. 6019
20), SENATOR MORSE (PP. 6021, 6022), SENATOR PEPPER (PP. 6022, 6023),
SENATOR WAGNER (P. 6022), SENATOR WHEELER (P. 6025), SENATOR BARKLEY
(P. 6028), SENATOR FULBRIGHT (P. 6024). 

FN20  SENATOR CONNALLY SAID:  "MR. LEWIS APPEARED BEFORE THE TRUMAN
COMMITTEE 3 OR 4 WEEKS AGO.  I HAPPEN TO BE A MEMBER OF THAT COMMITTEE,
AND WHEN HE SAID HE DID NOT REGARD HIS NO-STRIKE AGREEMENT AS BINDING
...  I DETERMINED THEN THAT IF I COULD GET THIS BILL BEFORE THE SENATE,
I WAS GOING TO BRING IT UP AND PRESS IT IN ORDER THAT IF HE DID
DISREGARD THE AGREEMENT, THE PRESIDENT OR THE GOVERNMENT OF THE UNITED
STATES WOULD HAVE A WEAPON WITH WHICH TO MEET THE THREAT AND THE
DANGER."  89 CONG. REC. 3886.  SEE ALSO H. REP. NO. 440, 78TH CONG.,
1ST SESS., P. 6.  THE REFERENCES TO THE COAL SITUATION IN THE DEBATES
ARE INNUMERABLE.  SEE, E.G., 89 CONG. REC. 3767, 3886, 3888, 3889, 3900
01. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, CONCURRING IN PART AND
DISSENTING IN PART. 

FOR THE REASONS GIVEN IN THE COURT'S OPINION, WE AGREE THAT NEITHER
THE NORRIS-LAGUARDIA ACT NOR THE WAR LABOR DISPUTES ACT BARRED THE
GOVERNMENT FROM OBTAINING THE INJUNCTION IT SOUGHT IN THESE
PROCEEDINGS.  THE "LABOR DISPUTES" WITH WHICH CONGRESS WAS CONCERNED IN
THE NORRIS-LAGUARDIA ACT WERE THOSE BETWEEN PRIVATE EMPLOYERS AND THEIR
EMPLOYEES.  AS TO ALL SUCH "LABOR DISPUTES," THE ACT DRASTICALLY
LIMITED THE JURISDICTION OF FEDERAL COURTS; IT BARRED RELIEF BY
INJUNCTION EXCEPT UNDER VERY NARROW CIRCUMSTANCES, WHETHER INJUNCTION
BE SOUGHT BY PRIVATE EMPLOYERS, THE GOVERNMENT, OR ANYONE ELSE.  BUT
THE ATTENTION OF CONGRESS WAS NEITHER FOCUSED UPON, NOR DID IT PURPORT
TO AFFECT, "LABOR DISPUTES," IF SUCH THEY CAN BE CALLED, BETWEEN THE
GOVERNMENT AND ITS OWN EMPLOYEES.  THERE WAS NEVER AN INTIMATION IN THE
PROGRESS OF THE ACT'S PASSAGE THAT A LABOR DISPUTE WITHIN THE ACT'S
MEANING WOULD ARISE BECAUSE OF CLAIMS AGAINST THE GOVERNMENT ASSERTED
COLLECTIVELY BY EMPLOYEES OF THE INTERIOR, STATE, JUSTICE, OR ANY OTHER
GOVERNMENT DEPARTMENT.  CONGRESS HAD NEVER IN ITS HISTORY PROVIDED A
PROGRAM FOR FIXING WAGES, HOURS, AND WORKING CONDITIONS OF ITS
EMPLOYEES BY COLLECTIVE BARGAINING.  WORKING CONDITIONS OF GOVERNMENT
EMPLOYEES HAD NOT BEEN THE SUBJECT OF COLLECTIVE BARGAINING, NOR BEEN
SETTLED AS A RESULT OF LABOR DISPUTES.  IT WOULD REQUIRE SPECIFIC
CONGRESSIONAL LANGUAGE TO PERSUADE US THAT CONGRESS INTENDED TO EMBARK
UPON SUCH A NOVEL PROGRAM OR TO TREAT THE GOVERNMENT EMPLOYER-EMPLOYEE
RELATIONSHIP AS GIVING RISE TO A "LABOR DISPUTE" IN THE INDUSTRIAL
SENSE. 

WE HAVE NO DOUBT THAT THE MINERS BECAME GOVERNMENT EMPLOYEES WHEN THE
GOVERNMENT TOOK OVER THE MINES.  IT ASSUMED COMPLETE CONTROL OVER THE
MINES AND THEIR OPERATION.  THE FACT THAT IT UTILIZED THE MANAGERIAL
FORCES OF THE PRIVATE OWNERS DOES NOT DETRACT FROM THE GOVERNMENT'S
COMPLETE AUTHORITY.  FOR WHATEVER CONTROL GOVERNMENT AGENTS DELEGATED
TO THE PRIVATE MANAGERS, THOSE AGENTS HAD FULL POWER TO TAKE AWAY AND
EXERCISE THEMSELVES.  IF WE THOUGHT, AS IS HERE CONTENDED, THAT THE
GOVERNMENT'S POSSESSION AND OPERATION OF THE MINES WERE NOT GENUINE,
BUT MERELY PRETENDED, WE SHOULD THEN SAY THAT THE NORRIS-LAGUARDIA ACT
BARRED THESE PROCEEDINGS.  FOR ANYTHING LESS THAN FULL AND COMPLETE
GOVERNMENT OPERATION FOR ITS OWN ACCOUNT  FN1  WOULD MAKE THIS
PROCEEDING THE EQUIVALENT OF THE GOVERNMENT'S SEEKING AN INJUNCTION FOR
THE BENEFIT OF THE PRIVATE EMPLOYERS.  WE THINK THE NORRIS-LAGUARDIA
ACT PROHIBITS THAT.  BUT AS WE READ THE WAR LABOR DISPUTES ACT AND THE
PRESIDENT'S ORDER TAKING OVER THE MINES AGAINST THE BACKGROUND OF
CIRCUMSTANCES WHICH PROMPTED BOTH, WE THINK, APPARENTLY CONTRARY TO THE
IMPLICATIONS OF THE REGULATIONS, THAT THE GOVERNMENT OPERATES THESE
MINES FOR ITS OWN ACCOUNT AS A MATTER OF LAW; FN2  AND THOSE WHO WORK
IN THEM, DURING THE PERIOD OF COMPLETE GOVERNMENT CONTROL, ARE
EMPLOYEES OF THE GOVERNMENT. 

SINCE THE NORRIS-LAGUARDIA ACT IS INAPPLICABLE, WE AGREE THAT THE
DISTRICT COURT HAD POWER IN THESE PROCEEDINGS TO ENTER ORDERS NECESSARY
TO PROTECT THE GOVERNMENT AGAINST AN INVASION OF THE RIGHTS IT
ASSERTED, PENDING ADJUDICATION OF THE CONTROVERSY ITS COMPLAINT
PRESENTED TO THE COURT.  IT IS THEREFORE UNNECESSARY FOR US TO REACH
THE QUESTION OF WHETHER THE DISTRICT COURT ALSO HAD POWER TO ENTER
THESE ORDERS UNDER THE DOCTRINE OF UNITED STATES V. SHIPP, 203 U.S.
563. 

WE AGREE THAT THE COURT HAD POWER SUMMARILY TO COERCE OBEDIENCE TO
THOSE ORDERS AND TO SUBJECT DEFENDANTS TO SUCH CONDITIONAL SANCTIONS AS
WERE NECESSARY TO COMPEL OBEDIENCE.  AND WE AGREE THAT IN SUCH CIVIL
CONTEMPT PROCEEDINGS TO COMPEL OBEDIENCE, IT WAS NOT NECESSARY FOR THE
COURT TO ABIDE BY ALL THE PROCEDURAL SAFEGUARDS WHICH SURROUND TRIALS
FOR CRIME.  WITHOUT SUCH COERCIVE POWERS, COURTS COULD NOT SETTLE THE
CASES AND CONTROVERSIES BEFORE THEM.  COURTS COULD NOT ADMINISTER
JUSTICE IF PERSONS WERE LEFT FREE PENDING ADJUDICATION TO ENGAGE IN
CONDUCT WHICH WOULD EITHER IMMEDIATELY INTERRUPT THE JUDICIAL
PROCEEDINGS OR SO CHANGE THE STATUS QUO OF THE SUBJECT MATTER OF A
CONTROVERSY THAT NO EFFECTIVE JUDGMENT COULD BE RENDERED.  DISORDER IN
THE COURTROOM, OR SO NEAR TO IT AS TO INTERRUPT A TRIAL, AND
DISOBEDIENCE OF AN AFFIRMATIVE COURT ORDER, ARE TYPICAL EXAMPLES OF
OFFENSES WHICH MUST NECESSARILY BE DEALT WITH SUMMARILY.  TO REMOVE
SUCH IMMINENT INTERFERENCE WITH ORDERLY JUDICIAL PROCEEDINGS, COURTS
MUST HAVE POWER TO ACT IMMEDIATELY.  IN RECOGNITION OF THIS FACT, THE
CONTEMPT POWER CAME INTO EXISTENCE.  FN3  THIS POWER IS OF ANCIENT
LINEAGE,  FN4  HAS ALWAYS BEEN EXERCISED BY OUR COURTS, AND HAS THE
EXPRESS RECOGNITION OF CONGRESS UNDER THE NAME OF CONTEMPT.  REV. STAT.
SEC. 725, 28 U.S.C. SEC. 385.  WHERE THE COURT EXERCISES SUCH COERCIVE
POWER, HOWEVER, FOR THE PURPOSE OF COMPELLING FUTURE OBEDIENCE, THOSE
IMPRISONED "CARRY THE KEYS OF THEIR PRISON IN THEIR OWN POCKETS," IN RE
NEVITT, 117 F. 448, 461; BY OBEDIENCE TO THE COURT'S VALID ORDER, THEY
CAN END THEIR CONFINEMENT; AND THE COURT'S COERCIVE POWER IN SUCH A
"CIVIL CONTEMPT" PROCEEDING ENDS WHEN ITS ORDER HAS BEEN OBEYED. 
GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 441, 445.  SEE ALSO
DOYLE V. LONDON GUARANTEE CO., 204 U.S. 599, 607.  THE DISTRICT COURT
DID NOT ENTER A CONDITIONAL DECREE HERE.  BUT THIS COURT HAS MODIFIED
THE DISTRICT COURT'S DECREE TO PROVIDE AS PART OF THE JUDGMENT SUCH A
COERCIVE SANCTION IN THE FORM OF A CONDITIONAL FINE.  WE AGREE WITH THE
COURT'S DECISION IN THIS RESPECT.  FN5 

THE GOMPERS DECISION AND MANY OTHERS HAVE POINTED OUT THAT THE OBJECT
OF SUCH COERCIVE CONTEMPT PROCEEDINGS IS NOT TO PUNISH FOR AN OFFENSE
AGAINST THE PUBLIC, BUT TO COMPEL OBEDIENCE TO VALID COURT ORDERS.  YET
THE DECISION OF THIS COURT ALSO APPROVES UNCONDITIONAL FINES AS
CRIMINAL PUNISHMENT FOR PAST DISOBEDIENCE.  WE CANNOT AGREE TO THIS
ASPECT OF THE COURT'S JUDGMENT.  AT A VERY EARLY DATE THIS COURT
DECLARED, AND RECENTLY IT HAS REITERATED, THAT IN CONTEMPT PROCEEDINGS
COURTS SHOULD NEVER EXERCISE MORE THAN "THE LEAST POSSIBLE POWER
ADEQUATE TO THE END PROPOSED."  ANDERSON V. DUNN, 6 WHEAT.  204, 231;
IN RE MICHAEL, 326 U.S. 224, 227. 

IN CERTAIN CIRCUMSTANCES CRIMINAL CONTEMPT CULMINATING IN
UNCONDITIONAL PUNISHMENT FOR PAST DISOBEDIENCE MAY WELL CONSTITUTE AN
EXERCISE OF "THE LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED." 
THUS IN SITUATIONS WHICH WOULD WARRANT ONLY A USE OF COERCIVE SANCTIONS
IN THE FIRST INSTANCE, CRIMINAL PUNISHMENT MIGHT BE APPROPRIATE AT A
LATER STAGE IF THE DEFENDANT SHOULD PERSIST IN DISOBEYING THE ORDER OF
THE COURT.  WITHOUT CONSIDERING THE CONSTITUTIONAL REQUISITES OF SUCH
CRIMINAL PUNISHMENT, WE BELIEVE THE APPLICATION OF IT INAPPROPRIATE AND
IMPROPER HERE.  THE IMPOSITION OF CRIMINAL PUNISHMENT HERE WAS AN
EXERCISE OF FAR MORE THAN "THE LEAST POSSIBLE POWER ADEQUATE TO THE END
PROPOSED."  FOR HERE THE GREAT AND LEGITIMATE "END PROPOSED" WAS
AFFIRMATIVE ACTION BY THE DEFENDANTS TO PREVENT INTERRUPTION OF COAL
PRODUCTION PENDING FINAL ADJUDICATION OF THE CONTROVERSY.  COERCIVE
SANCTIONS SUFFICIENT TO ACCOMPLISH THIS END WERE JUSTIFIED.  FROM THE
RECORD WE HAVE NO DOUBT BUT THAT A CONDITIONAL CIVIL SANCTION WOULD
BRING ABOUT AT LEAST AS PROMPT AND UNEQUIVOCAL OBEDIENCE TO THE COURT'S
ORDER AS WOULD CRIMINAL PUNISHMENT FOR PAST DISOBEDIENCE.  AND THIS
WOULD ACCOMPLISH A VINDICATION OF THE DISTRICT COURT'S AUTHORITY
AGAINST A CONTINUING DEFIANCE.  CONSEQUENTLY, WE DO NOT BELIEVE THAT
THE ACCOMPLISHMENT OF THE JUSTIFIABLE "END PROPOSED" CALLED FOR SUMMARY
CRIMINAL PUNISHMENT WHICH IS DESIGNED TO DETER OTHERS FROM DISOBEDIENCE
TO COURT ORDERS OR TO AVENGE A PUBLIC WRONG, RATHER THAN THE IMPOSITION
OF A COERCIVE SANCTION.  AND FOR THE REASONS STATED BY MR. JUSTICE
RUTLEDGE, WE THINK THAT THE FLAT $700,000 CRIMINAL FINE AGAINST THE
DEFENDANT UNION IS EXCESSIVE BY CONSTITUTIONAL AND STATUTORY
STANDARDS. 

IN DETERMINING WHETHER CRIMINAL PUNISHMENT OR COERCIVE SANCTION
SHOULD BE EMPLOYED IN THESE PROCEEDINGS, THE QUESTION OF INTENT - THE
MOTIVATION OF THE CONTUMACY - BECOMES RELEVANT.  DIFFICULT QUESTIONS OF
LAW WERE PRESENTED BY THIS CASE.  IT IS PLAIN THAT THE DEFENDANTS ACTED
WILLFULLY FOR THEY KNEW THAT THEY WERE DISOBEYING THE COURT'S ORDER. 
BUT THEY APPEAR TO HAVE BELIEVED IN GOOD FAITH, THOUGH ERRONEOUSLY,
THAT THEY WERE ACTING WITHIN THEIR LEGAL RIGHTS.  MANY LAWYERS WOULD
HAVE SO ADVISED THEM.  THIS DOES NOT EXCUSE THEIR CONDUCT; THE WHOLE
SITUATION EMPHASIZED THE DUTY OF TESTING THE RESTRAINING ORDER BY
ORDERLY APPEAL INSTEAD OF DISOBEDIENCE AND OPEN DEFIANCE.  HOWEVER, AS
THIS COURT SAID IN COOKE V. UNITED STATES, 267 U.S. 517, 538, "THE
INTENTION WITH WHICH ACTS OF CONTEMPT HAVE BEEN COMMITTED MUST
NECESSARILY AND PROPERLY HAVE AN IMPORTANT BEARING ON THE DEGREE OF
GUILT AND THE PENALTY WHICH SHOULD BE IMPOSED." 

WE THINK IT SIGNIFICANT THAT THE CONDUCT WHICH WAS PROHIBITED BY THE
RESTRAINING ORDER FOR VIOLATION OF WHICH THESE DEFENDANTS HAVE BEEN
PUNISHED FOR CONTEMPT IS ALSO PUNISHABLE UNDER THE WAR LABOR DISPUTES
ACT.  THAT ACT PROVIDES A MAXIMUM PUNISHMENT OF $5,000 FINE AND ONE
YEAR IMPRISONMENT FOR THOSE WHO INTERFERE WITH THE OPERATION OF MINES
TAKEN OVER BY THE UNITED STATES.  HAD THE DEFENDANTS BEEN TRIED UNDER
THAT STATUTE, THEIR PUNISHMENT WOULD HAVE BEEN LIMITED THEREBY AND IN
THEIR TRIAL THEY WOULD HAVE ENJOYED ALL THE CONSTITUTIONAL SAFEGUARDS
OF THE BILL OF RIGHTS.  WHATEVER CONSTITUTIONAL SAFEGUARDS ARE REQUIRED
IN A SUMMARY CONTEMPT PROCEEDING, WHETHER IT BE FOR CRIMINAL
PUNISHMENT, OR FOR THE IMPOSITION OF COERCIVE SANCTION, WE MUST BE EVER
MINDFUL OF THE DANGER OF PERMITTING PUNISHMENT BY CONTEMPT TO BE
IMPOSED FOR CONDUCT WHICH IS IDENTICAL WITH AN OFFENSE DEFINED AND MADE
PUNISHABLE BY STATUTE.  IN RE MICHAEL, SUPRA.  FN6 

THE SITUATION OF GRAVE EMERGENCY FACING THE COUNTRY WHEN THE DISTRICT
COURT ACTED CALLED FOR THE STRONGEST MEASURES - MEASURES DESIGNED TO
PRODUCE QUICK AND UNQUALIFIED OBEDIENCE OF THE COURT'S ORDER.  IF THE
$10,000 FINE ON DEFENDANT LEWIS AND THE $3,500,000 FINE ON THE
DEFENDANT UNION BE TREATED AS COERCIVE FINES, THEY WOULD NOT
NECESSARILY BE EXCESSIVE.  FOR THEY WOULD THEN BE PAYABLE ONLY IF THE
DEFENDANTS CONTINUED TO DISOBEY THE COURT'S ORDER.  DEFENDANTS COULD
THEN AVOID PAYMENT BY PURGING THEMSELVES.  THE PRICE OF CONTINUED
DISOBEDIENCE WOULD BE THE AMOUNT OF THE FINES.  SEE DOYLE V. LONDON
GUARANTEE CO., SUPRA, 602.  THE FINES WOULD BE FIXED SO AS TO PRODUCE
THE GREATEST LIKELIHOOD THAT THEY WOULD COMPEL OBEDIENCE. 

WE SHOULD MODIFY THE DISTRICT COURT'S DECREES BY MAKING THE ENTIRE
AMOUNT OF THE FINES PAYABLE CONDITIONALLY.  ON DECEMBER 7, 1946, MR.
LEWIS DIRECTED THE MINE WORKERS TO RETURN TO WORK UNTIL MIDNIGHT, MARCH
31, 1947.  BUT, SO FAR AS WE ARE AWARE, THE NOTICE WHICH PURPORTED TO
TERMINATE THE CONTRACT HAS NOT BEEN WITHDRAWN.  THUS, THERE HAS BEEN,
AT MOST, ONLY A PARTIAL COMPLIANCE WITH THE TEMPORARY INJUNCTION. 

HENCE OUR JUDGMENT SHOULD PROVIDE THAT THE DEFENDANTS PAY THEIR
RESPECTIVE FINES ONLY IN THE EVENT THAT FULL AND UNCONDITIONAL
OBEDIENCE TO THE TEMPORARY INJUNCTION, INCLUDING WITHDRAWAL OF THE
NOTICE WHICH PURPORTED TO TERMINATE THE CONTRACT, IS NOT HAD ON OR
BEFORE A DAY CERTAIN. 

FN1  AN ANALOGY IS A TAKING BY THE GOVERNMENT OF A LEASEHOLD INTEREST
IN PROPERTY IN WHOLE OR IN PART.  SEE UNITED STATES V. PETTY MOTOR CO.,
327 U.S. 372. 

FN2  SECTION 9 OF THE SELECTIVE SERVICE ACT, 54 STAT. 892, 50 U.S.C.
APP. SEC. 309, GRANTED POWER "TO TAKE IMMEDIATE POSSESSION OF ANY  ...
PLANT  ...  AND THROUGH THE APPROPRIATE BRANCH, BUREAU, OR DEPARTMENT
OF THE ARMY OR NAVY TO MANUFACTURE THEREIN SUCH PRODUCT  ...  AS MAY BE
REQUIRED  ..."  AND IT PROVIDES FOR PAYMENT:  "THE COMPENSATION TO BE
PAID  ...  AS RENTAL FOR USE OF ANY MANUFACTURING PLANT WHILE USED BY
THE UNITED STATES, SHALL BE FAIR AND JUST  ..."  SECTION 3 OF THE WAR
LABOR DISPUTES ACT, 57 STAT. 164, 50 U.S.C. APP. SUPP. V SEC. 309,
EXTENDED THIS AUTHORITY TO INCLUDE POWER TO TAKE IMMEDIATE POSSESSION
OF ANY "MINE  ...  EQUIPPED FOR THE MANUFACTURE, PRODUCTION, OR MINING
OF ANY ARTICLES OR MATERIALS WHICH MAY BE REQUIRED FOR THE WAR EFFORT
...  WHENEVER THE PRESIDENT FINDS  ...  AND PROCLAIMS THAT THERE IS AN
INTERRUPTION OF THE OPERATION OF SUCH  ...  MINE  ...  AS A RESULT OF A
STRIKE OR OTHER LABOR DISTURBANCE  ...  AND THAT THE EXERCISE OF SUCH
POWER AND AUTHORITY IS NECESSARY TO INSURE THE OPERATION OF SUCH  ...
MINE  ...  IN THE INTEREST OF THE WAR EFFORT  ..." 

FN3  SEE E.G., COOKE V. UNITED STATES, 267 U.S. 517, 534-537; FOX,
HISTORY OF CONTEMPT OF COURT (1927); BEALE, CONTEMPT OF COURT, 21 HARV.
L. REV. (1908) 161, 169-170. 

FN4  "AS EARLY AS THE TIME OF RICHARD III IT WAS SAID THAT THE
CHANCELLOR OF ENGLAND COMPELS A PARTY AGAINST WHOM AN ORDER IS ISSUED
BY IMPRISONMENT; (2 R. III, 9 PL. 22) AND A LITTLE LATER IT WAS SAID IN
THE CHANCERY THAT 'A DECREE DOES NOT BIND THE RIGHT, BUT ONLY BINDS THE
PERSON TO OBEDIENCE, SO THAT IF THE PARTY WILL NOT OBEY, THEN THE
CHANCELLOR MAY COMMIT HIM TO PRISON TILL HE OBEY, AND THAT IT IS ALL
THE CHANCELLOR CAN DO.'  (27 H. VIII, 15.)  THIS IMPRISONMENT WAS BY NO
MEANS A PUNISHMENT, BUT WAS MERELY TO SECURE OBEDIENCE TO THE WRIT OF
THE KING.  DOWN TO WITHIN A CENTURY IT WAS VERY DOUBTFUL IF THE
CHANCELLOR COULD UNDER ANY CIRCUMSTANCES INFLICT PUNISHMENT FOR
DISOBEDIENCE OF A DECREE.  IF THE DECREE COMMANDED THE DEFENDANT TO
TRANSFER PROPERTY, THE CHANCELLOR ACQUIRED POWER AS EARLY AS THE
SIXTEENTH CENTURY TO SEQUESTER THE PROPERTY AS SECURITY FOR
PERFORMANCE; BUT IF THE DECREE WERE FOR THE DOING OF ANY OTHER ACT, OR
WERE A DECREE FOR AN INJUNCTION, THE CHANCELLOR WAS HELPLESS IF HE
COULD NOT COMPEL OBEDIENCE BY IMPRISONMENT....  IN ANY CASE THE
CONTEMPT OF A DEFENDANT WHO HAD VIOLATED A DECREE IN CHANCERY COULD BE
PURGED BY DOING THE ACT COMMANDED AND PAYING COSTS; OR, IF HIS
DISOBEDIENCE HAD BEEN THE VIOLATION OF A NEGATIVE INJUNCTION, HE COULD
PURGE HIMSELF OF CONTEMPT BY UNDOING WHAT HE HAD DONE AND PAYING
COSTS."  BEALE, SUPRA. 

FN5  "IN THE CASE OF CONTEMPT IN VIOLATING AN ORDER OR DECREE OF A
COURT OF EQUITY, WE HAVE AN ENTIRELY DIFFERENT PROBLEM....  IF THE
COURT LIMITS ITSELF TO ITS PROPER ACTION IN SUCH CASES, NAMELY, PROCESS
OF IMPRISONMENT MERELY TO PREVENT THE VIOLATION OF THE DECREE, AND IF
THE IMPRISONMENT IS TO CEASE AS SOON AS THE DANGER OF DISOBEDIENCE HAS
CEASED, THE JURY, WHICH IS THOUGHT NECESSARY TO PASS UPON THE DESERT OF
A DEFENDANT TO SUFFER PUNISHMENT, IS NOT REQUIRED....  SO FAR,
THEREFORE, AS POPULAR CLAMOR DEMANDS A TRIAL BY JURY IN SUCH A CASE, IT
SEEMS TO GO BEYOND THE REQUIREMENTS OF JUSTICE; AND THE STATUTES WHICH
COMMIT THE TRIAL OF QUESTIONS OF FACT IN SUCH PROCESS TO A JURY ARE NOT
LIKELY PERMANENTLY TO PROVE SATISFACTORY.  THIS STATEMENT, HOWEVER, IS
TO BE LIMITED TO CASES OF MERELY PREVENTIVE IMPRISONMENT.  WHERE THE
COURT INFLICTS A DEFINITE TERM OF IMPRISONMENT BY WAY OF PUNISHMENT FOR
THE VIOLATION OF ITS ORDERS, THE CASE DOES NOT DIFFER, IT WOULD SEEM,
FROM THE CASE OF CRIMINAL CONTEMPT OUT OF COURT, AND REGULAR PROCESS
AND TRIAL BY JURY SHOULD BE REQUIRED."  ID. 173-174. 

FN6  SEE ALSO IN RE DEBS, 158 U.S. 564; GOMPERS V. BUCKS STOVE &
RANGE CO., 221 U.S. 418; GOMPERS V. UNITED STATES, 233 U.S. 604, 610,
611; EX PARTE GROSSMAN, 267 U.S. 87; EX PARTE HUDGINGS, 249 U.S. 378,
383; MICHAELSON V. UNITED STATES, 266 U.S. 42; BLACKMER V. UNITED
STATES, 284 U.S. 421, 440; NYE V. UNITED STATES, 313 U.S. 33; BRIDGES
V. CALIFORNIA, 314 U.S. 252, 264; PENDERGAST V. UNITED STATES, 317 U.S.
412; IN RE BRADLEY, 318 U.S. 50.  FRANKFURTER AND LANDIS, POWER OF
CONGRESS OVER PROCEDURE IN CRIMINAL CONTEMPTS IN "INFERIOR" FEDERAL
COURTS, 317 HARV. L. REV. 1010, 1043-1045(1924) AND AUTHORITIES THERE
COLLECTED; NELLES AND KING, CONTEMPT BY PUBLICATION IN THE UNITED
STATES, 28 COL. L. REV. 401(1928).    MR. JUSTICE MURPHY, DISSENTING. 

AN OBJECTIVE READING OF THE NORRIS-LAGUARDIA ACT REMOVES ANY DOUBTS
AS TO ITS MEANING AND AS TO ITS APPLICABILITY TO THE FACTS OF THIS
CASE.  SECTION 4 PROVIDES IN CLEAR, UNMISTAKABLE LANGUAGE THAT "NO
COURT OF THE UNITED STATES SHALL HAVE JURISDICTION TO ISSUE ANY
RESTRAINING ORDER OR TEMPORARY OR PERMANENT INJUNCTION IN ANY CASE
INVOLVING OR GROWING OUT OF ANY LABOR DISPUTE  ..."  THAT LANGUAGE,
WHICH IS REPEATED IN OTHER SECTIONS OF THE ACT, IS SUFFICIENT BY ITSELF
TO DISPOSE OF THIS CASE WITHOUT FURTHER ADO.  BUT WHEN PROPER
RECOGNITION IS GIVEN TO THE BACKGROUND AND PURPOSE OF THE ACT, IT
BECOMES APPARENT THAT THE IMPLICATIONS OF TODAY'S DECISION CAST A DARK
CLOUD OVER THE FUTURE OF LABOR RELATIONS IN THE UNITED STATES. 

DUE RECOGNITION MUST BE GIVEN TO THE CIRCUMSTANCES THAT GAVE RISE TO
THIS CASE.  THE GOVERNMENT WAS CONFRONTED WITH THE NECESSITY OF
PRESERVING THE ECONOMIC HEALTH OF THE NATION; DIRE DISTRESS WOULD HAVE
EVENTUATED HERE AND ABROAD FROM A PROLONGED STRIKE IN THE BITUMINOUS
COAL MINES.  IT WAS IMPERATIVE THAT SOME EFFECTIVE ACTION BE TAKEN TO
BREAK THE STALEMATE.  BUT THOSE FACTORS DO NOT PERMIT THE CONVERSION OF
THE JUDICIAL PROCESS INTO A WEAPON FOR MISAPPLYING STATUTES ACCORDING
TO THE GRAVE EXIGENCIES OF THE MOMENT.  THAT CAN HAVE TRAGIC
CONSEQUENCES EVEN MORE SERIOUS AND LASTING THAN A TEMPORARY DISLOCATION
OF THE NATION'S ECONOMY RESULTING FROM A STRIKE OF THE MINERS. 

THE WHOLE THRUST OF THE NORRIS-LAGUARDIA ACT IS DIRECTED TOWARD THE
USE OF RESTRAINING ORDERS AND INJUNCTIONS IN CASES ARISING OUT OF LABOR
DISPUTES BETWEEN PRIVATE EMPLOYERS AND PRIVATE EMPLOYEES.  IT WAS IN
THAT SETTING THAT THE ABUSES OF FEDERAL EQUITY POWER HAD FLOURISHED;
AND IT WAS THOSE ABUSES THAT LED TO THE ADOPTION OF THE ACT.  THE
APPLICATION OF THE ACT TO THE INSTANT SITUATION IS THUS CLEAR.  IT
CANNOT BE DENIED THAT THIS CASE IS ONE GROWING OUT OF A LABOR DISPUTE
BETWEEN THE PRIVATE COAL OPERATORS AND THE PRIVATE MINERS.  THAT IS A
MATTER OF COMMON KNOWLEDGE.  EXECUTIVE ORDER NO. 9728, WHICH AUTHORIZED
THE SECRETARY OF THE INTERIOR TO TAKE POSSESSION OF AND TO OPERATE THE
COAL MINES, EXPLICITLY STATED THAT THIS ACTION WAS TAKEN "AS A RESULT
OF EXISTING OR THREATENED STRIKES AND OTHER LABOR DISTURBANCES."  THOSE
STRIKES AND LABOR DISTURBANCES GREW OUT OF THE RELATIONS BETWEEN THE
OPERATORS AND THE MINERS.  THE GOVERNMENT FURTHER RECOGNIZED THAT FACT
BY ITS SUBSEQUENT REFUSAL TO NEGOTIATE WITH THE MINERS ON THEIR DEMANDS
AND ITS INSISTENCE THAT THESE DEMANDS BE ADDRESSED TO THE PRIVATE MINE
OWNERS.  IT IS PRECISELY IN SITUATIONS ARISING OUT OF DISPUTES OF THIS
NATURE THAT CONGRESS HAS SAID THAT NO COURT OF THE UNITED STATES SHALL
HAVE JURISDICTION TO ISSUE ANY RESTRAINING ORDER OR INJUNCTION. 

THE CRUX OF THIS CASE IS WHETHER THE FACT THAT THE GOVERNMENT TOOK
OVER THE POSSESSION AND OPERATION OF THE MINES CHANGED THE PRIVATE
CHARACTER OF THE UNDERLYING LABOR DISPUTE BETWEEN THE OPERATORS AND THE
MINERS SO AS TO MAKE INAPPLICABLE THE NORRIS-LAGUARDIA ACT.  THE ANSWER
IS CLEAR.  MUCH HAS BEEN SAID ABOUT THE GOVERNMENT'S STATUS AS EMPLOYER
AND THE MINERS' STATUS AS GOVERNMENT EMPLOYEES FOLLOWING THE SEIZURE. 
IN MY OPINION, THE MINERS REMAINED PRIVATE EMPLOYEES DESPITE THE
TEMPORARY GLOSS OF GOVERNMENT POSSESSION AND OPERATION OF THE MINES;
THEY BEAR NO RESEMBLANCE WHATEVER TO EMPLOYEES OF THE EXECUTIVE
DEPARTMENTS, THE INDEPENDENT AGENCIES AND THE OTHER BRANCHES OF THE
GOVERNMENT.  BUT WHEN ALL IS SAID AND DONE, THE OBVIOUS FACT REMAINS
THAT THIS CASE INVOLVES AND GROWS OUT OF A LABOR DISPUTE BETWEEN THE
OPERATORS AND THE MINERS.  GOVERNMENT SEIZURE OF THE MINES CANNOT HIDE
OR CHANGE THAT FACT.  INDEED, THE SEIZURE TOOK PLACE ONLY BECAUSE OF
THE EXISTENCE OF THE DISPUTE AND BECAUSE IT WAS THOUGHT SOME SOLUTION
MIGHT THEREAFTER RESULT.  THE DISPUTE, HOWEVER, SURVIVED THE SEIZURE
AND IS STILL VERY MUCH ALIVE.  AND IT STILL RETAINS ITS PRIVATE
CHARACTER, THE OPERATORS ON THE ONE SIDE AND THE COAL MINERS ON THE
OTHER. 

THE IMPORTANT POINT, AND IT CANNOT BE OVEREMPHASIZED, IS THAT
CONGRESS HAS DECREED THAT STRIKES AND LABOR DISTURBANCES GROWING OUT OF
PRIVATE LABOR DISPUTES ARE TO BE DEALT WITH BY SOME MEANS OTHER THAN
FEDERAL COURT RESTRAINING ORDERS AND INJUNCTIONS.  FURTHER
CONFIRMATION, IF ANY BE NEEDED, IS TO BE FOUND IN THE TERMS AND IN THE
HISTORY OF THE WAR LABOR DISPUTES ACT.  TO THIS CLEARLY ENUNCIATED
POLICY OF MAKING "GOVERNMENT BY INJUNCTION" ILLEGAL, CONGRESS HAS MADE
NO EXCEPTION WHERE THE PUBLIC INTEREST IS AT STAKE OR WHERE THE
GOVERNMENT HAS SEIZED THE PRIVATE PROPERTIES INVOLVED.  CONGRESS CAN SO
PROVIDE.  BUT IT HAS NOT DONE SO AS YET; UNTIL IT DOES, WE ARE NOT FREE
TO SANCTION THE USE OF RESTRAINING ORDERS AND INJUNCTIONS IN A CASE OF
THIS NATURE. 

THE GOVERNMENT'S SEIZURE OF THE COAL MINES THUS BECOMES IRRELEVANT TO
THE ISSUE.  THE FEDERAL EQUITY POWER TO ISSUE RESTRAINING ORDERS AND
INJUNCTIONS SIMPLY CANNOT BE INVOKED IN THIS CASE, SINCE IT GROWS OUT
OF A PRIVATE LABOR DISPUTE.  AND IT MAKES NO DIFFERENCE THAT THE PARTY
SEEKING THE PROSCRIBED RELIEF IS THE GOVERNMENT RATHER THAN A PRIVATE
EMPLOYER.  THE TOUCHSTONE OF THE NORRIS-LAGUARDIA ACT IS THE EXISTENCE
OF A LABOR DISPUTE, NOT THE STATUS OF THE PARTIES.  AMONG THE SPECIFIC
EVILS WHICH THE FRAMERS OF THE ACT HAD IN MIND WERE THE INJUNCTIONS
SECURED BY THE GOVERNMENT IN THE DEBS, THE HAYES AND THE RAILWAY
SHOPMEN'S CASES.  THE ACT WAS DRAWN TO PREVENT, AMONG OTHER THINGS, THE
RECURRENCE OF SUCH INJUNCTIONS.  THE GOVERNMENT CONCEDEDLY COULD NOT
OBTAIN AN INJUNCTION IN A PRIVATE LABOR DISPUTE WHERE THERE HAS BEEN NO
SEIZURE OF PRIVATE PROPERTIES, NO MATTER HOW GREAT THE PUBLIC INTEREST
IN THE DISPUTE MIGHT BE.  TO PERMIT THE GOVERNMENT TO OBTAIN AN
INJUNCTION WHERE THERE HAS BEEN A SEIZURE WOULD EQUALLY FLOUT THE
LANGUAGE AND POLICY OF THE ACT.  IN WHATEVER CAPACITY THE GOVERNMENT
ACTS, THIS STATUTE CLOSES THE DOORS OF THE FEDERAL COURTS WHERE A
RESTRAINING ORDER OR INJUNCTION IS SOUGHT IN A CASE ARISING OUT OF A
PRIVATE LABOR DISPUTE. 

MOREOVER, IF SEIZURE ALONE JUSTIFIES AN INJUNCTION CONTRARY TO THE
EXPRESSED WILL OF CONGRESS, SOME FUTURE GOVERNMENT COULD EASILY UTILIZE
SEIZURE AS A SUBTERFUGE FOR BREAKING ANY OR ALL STRIKES IN PRIVATE
INDUSTRIES.  UNDER SOME WAR-TIME OR EMERGENCY POWER, IT COULD SEIZE
PRIVATE PROPERTIES AT THE BEHEST OF THE EMPLOYERS WHENEVER A STRIKE
THREATENED OR OCCURRED ON A FINDING THAT THE PUBLIC INTEREST WAS IN
PERIL.  A RESTRAINING ORDER COULD THEN BE SECURED ON THE SPECIOUS
THEORY THAT THE GOVERNMENT WAS ACTING IN RELATION TO ITS OWN
EMPLOYEES.  THE WORKERS WOULD BE EFFECTIVELY SUBDUED UNDER THE IMPACT
OF THE RESTRAINING ORDER AND CONTEMPT PROCEEDINGS.  AFTER THE STRIKE
WAS BROKEN, THE PROPERTIES WOULD BE HANDED BACK TO THE PRIVATE
EMPLOYERS.  THAT ESSENTIALLY IS WHAT HAS HAPPENED IN THIS CASE.  THAT
IS WHAT MAKES THE DECISION TODAY SO FULL OF DANGEROUS IMPLICATIONS FOR
THE FUTURE.  MOREOVER, IF THE GOVERNMENT IS TO USE ITS SEIZURE POWER TO
REPUDIATE THE NORRIS-LAGUARDIA ACT AND TO INTERVENE BY INJUNCTION IN
PRIVATE LABOR DISPUTES, THAT POLICY SHOULD BE DETERMINED BY CONGRESS. 
IT IS NOT THE FUNCTION OF THIS COURT TO SANCTION THAT POLICY WHERE
CONGRESS HAS REMAINED SILENT.  ONCE CONGRESS HAS SPOKEN, IT WILL BE
TIME ENOUGH TO CONSIDER THE CONSTITUTIONAL ISSUES RAISED BY AN
APPLICATION OF THAT POLICY. 

SINCE IN MY VIEW THE RESTRAINING ORDER AND THE TEMPORARY INJUNCTION
IN THIS CASE ARE VOID AND WITHOUT EFFECT, THERE REMAINS FOR ME ONLY THE
CONTENTION THAT THE DEFENDANTS ARE GUILTY OF CRIMINAL CONTEMPT FOR
HAVING WILLFULLY IGNORED THE VOID RESTRAINING ORDER.  IT IS SAID THAT
THE DISTRICT COURT HAD THE POWER TO PRESERVE EXISTING CONDITIONS WHILE
IT WAS DETERMINING ITS OWN AUTHORITY TO GRANT INJUNCTIVE RELIEF; HENCE
THE DEFENDANTS ACTED AT THEIR OWN PERIL IN DISOBEYING THE RESTRAINING
ORDER.  ELOQUENT PLEAS ARE MADE FOR THE SUPREMACY OF THE JUDICIARY OVER
THE INDIVIDUAL AND THE REQUIREMENT THAT A PERSON OBEY COURT ORDERS
UNTIL THEY ARE REVERSED BY ORDERLY AND PROPER PROCEEDINGS.  HEAVY
EMPHASIS IS PLACED UPON UNITED STATES V. SHIPP, 203 U.S. 563. 

THESE ARGUMENTS HAVE A SEDUCTIVE ATTRACTIVENESS HERE.  ORDINARILY, OF
COURSE, IT IS BETTER POLICY TO OBEY A VOID ORDER THAN RUN THE RISK OF A
CONTEMPT CITATION.  AND AS A GENERAL PROPOSITION, INDIVIDUALS CANNOT BE
ALLOWED TO BE THE JUDGES OF THE VALIDITY OF COURT ORDERS ISSUED AGAINST
THEM.  BUT THE PROBLEM RAISED BY THE VIOLATION OF THE RESTRAINING ORDER
IN THIS CASE MUST BE VIEWED AGAINST THE BACKGROUND AND LANGUAGE OF THE
NORRIS-LAGUARDIA ACT. 

UNLIKE MOST OTHER SITUATIONS, THIS ACT SPECIFICALLY PROHIBITS THE
ISSUANCE OF RESTRAINING ORDERS EXCEPT IN SITUATIONS NOT HERE INVOLVED. 
THERE IS NO EXCEPTION IN FAVOR OF A RESTRAINING ORDER WHERE THERE IS
SOME SERIOUS DOUBT ABOUT THE COURT'S JURISDICTION; INDEED, THE
PROHIBITION AGAINST RESTRAINING ORDERS WOULD BE FUTILE WERE SUCH AN
EXCEPTION RECOGNIZED, FOR THE MINDS OF LAWYERS AND JUDGES ARE BOUNDLESS
IN THEIR ABILITIES TO RAISE SERIOUS JURISDICTIONAL OBJECTIONS.  AND SO
CONGRESS HAS FLATLY FORBIDDEN THE ISSUANCE OF ALL RESTRAINING ORDERS
UNDER THIS ACT.  IT FOLLOWS THAT WHEN SUCH AN ORDER IS ISSUED DESPITE
THIS CLEAR PROHIBITION, NO MAN CAN BE HELD IN CONTEMPT THEREOF, HOWEVER
UNWISE HIS ACTION MAY BE AS A MATTER OF POLICY.  WHEN HE VIOLATES THE
VOID ORDER, 28 U.S.C. SEC. 385 COMES INTO OPERATION, FORBIDDING
PUNISHMENT FOR CONTEMPT EXCEPT WHERE THERE HAS BEEN DISOBEDIENCE OF A
"LAWFUL WRIT, PROCESS, ORDER, RULE, DECREE, OR COMMAND" OF A COURT. 

THIS ABSOLUTE OUTLAWRY OF RESTRAINING ORDERS IN CASES INVOLVING
PRIVATE LABOR DISPUTES IS NOT WITHOUT REASON.  THE ISSUANCE OF SUCH
ORDERS PRIOR TO THE ADOPTION OF THE NORRIS-LAGUARDIA ACT HAD A LONG AND
TORTURED HISTORY.  TIME AND AGAIN STRIKES WERE BROKEN MERELY BY THE
ISSUANCE OF A TEMPORARY RESTRAINING ORDER, PURPORTING TO MAINTAIN THE
STATUS QUO.  BECAUSE OF THE HIGHLY FLUID CHARACTER OF LABOR DISPUTES,
THE DELAY INVOLVED IN TESTING AN ORDER OF THAT NATURE OFTEN RESULTED IN
NEUTRALIZING THE RIGHTS OF EMPLOYEES TO STRIKE AND PICKET.  AND TOO
OFTEN, THESE ORDERS DID MORE THAN STABILIZE EXISTING CONDITIONS; THEY
CALLED FOR AFFIRMATIVE CHANGE.  THE RESTRAINING ORDER IN THE INSTANT
CASE IS BUT ONE EXAMPLE OF THIS.  WHILE PURPORTING TO PRESERVE THE
STATUS QUO, IT ACTUALLY COMMANDS THE DEFENDANTS TO RESCIND THE STRIKE
CALL - THEREBY AFFIRMATIVELY INTERFERING WITH THE LABOR DISPUTE. 

CONGRESS WAS WELL AWARE OF THIS USE OF RESTRAINING ORDERS TO BREAK
STRIKES.  AFTER FULL CONSIDERATION, IT INTENTIONALLY AND SPECIFICALLY
PROHIBITED THEIR USE, WITH CERTAIN EXCEPTIONS NOT HERE RELEVANT.  WE
ARE NOT FREE TO DISREGARD THAT PROHIBITION.  HENCE THE DOCTRINE OF THE
SHIPP CASE HAS NO RELATION WHATEVER TO OUR PRESENT PROBLEM.  THAT CASE
DEALT WITH AN ORDER OF THIS COURT STAYING THE EXECUTION OF A CONVICTED
FELON, AN ORDER WHICH LAY WITHIN THE RECOGNIZED POWER OF THIS COURT AND
WHICH HAD NOT BEEN VALIDLY PROHIBITED BY CONGRESS.  NATURALLY, NO MAN
COULD VIOLATE THAT ORDER WITH IMPUNITY.  BUT WE ARE ACTING HERE IN THE
UNIQUE FIELD OF LABOR RELATIONS, DEALING WITH A TYPE OF ORDER WHICH
CONGRESS HAS DEFINITELY PROSCRIBED.  IF WE ARE TO HOLD THESE DEFENDANTS
IN CONTEMPT FOR HAVING VIOLATED A VOID RESTRAINING ORDER, WE MUST CLOSE
OUR EYES TO THE EXPRESSED WILL OF CONGRESS AND TO THE WHOLE HISTORY OF
EQUITABLE RESTRAINTS IN THE FIELD OF LABOR DISPUTES.  WE MUST DISREGARD
THE FACT THAT TO COMPEL ONE TO OBEY A VOID RESTRAINING ORDER IN A CASE
INVOLVING A LABOR DISPUTE AND TO REQUIRE THAT IT BE TESTED ON APPEAL IS
TO SANCTION THE USE OF THE RESTRAINING ORDER TO BREAK STRIKES - WHICH
WAS PRECISELY WHAT CONGRESS WANTED TO AVOID.  EVERY REASON SUPPORTING
THE SALUTARY PRINCIPLE OF THE SHIPP CASE BREAKS DOWN WHEN THAT
PRINCIPLE IS APPLIED IN THIS SETTING.  I WOULD THEREFORE REVERSE THE
JUDGMENT OF THE DISTRICT COURT IN TOTO. 

IT HAS BEEN SAID THAT THE ACTIONS OF THE DEFENDANTS THREATENED
ORDERLY CONSTITUTIONAL GOVERNMENT AND THE ECONOMIC AND SOCIAL STABILITY
OF THE NATION.  WHATEVER MAY BE THE VALIDITY OF THOSE STATEMENTS, WE
LACK ANY POWER TO IGNORE THE PLAIN MANDATES OF CONGRESS AND TO IMPOSE
VINDICTIVE FINES UPON THE DEFENDANTS.  THEY ARE ENTITLED TO BE JUDGED
BY THIS COURT ACCORDING TO THE SOBER PRINCIPLES OF LAW.  A JUDICIAL
DISREGARD OF WHAT CONGRESS HAS DECREED MAY SEEM JUSTIFIED FOR THE
MOMENT IN VIEW OF THE CRISIS WHICH GAVE BIRTH TO THIS CASE.  BUT SUCH A
DISREGARD MAY ULTIMATELY HAVE MORE DISASTROUS AND LASTING EFFECTS UPON
THE ECONOMY OF THE NATION THAN ANY ACTION OF AN AGGRESSIVE LABOR LEADER
IN DISOBEYING A VOID COURT ORDER.  THE CAUSE OF ORDERLY CONSTITUTIONAL
GOVERNMENT IS ILL-SERVED BY MISAPPLYING THE LAW AS IT IS WRITTEN,
INADEQUATE THOUGH IT MAY BE, TO MEET AN EMERGENCY SITUATION, ESPECIALLY
WHERE THAT MISAPPLICATION PERMITS PUNITIVE SANCTIONS TO BE PLACED UPON
AN INDIVIDUAL OR AN ORGANIZATION. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

THIS CASE BECAME A CAUSE CELEBRE THE MOMENT IT BEGAN.  NO GOOD
PURPOSE CAN BE SERVED BY IGNORING THAT OBVIOUS FACT.  BUT IT CANNOT
AFFECT OUR JUDGMENT SAVE ONLY PERHAPS TO STEEL US, IF THAT WERE
NECESSARY, TO THE ESSENTIAL AND ACCUSTOMED BEHAVIOR OF JUDGES.  FN1  IN
ALL CASES GREAT OR SMALL THIS MUST BE TO RENDER JUDGMENT EVENLY AND
DISPASSIONATELY ACCORDING TO LAW, AS EACH IS GIVEN UNDERSTANDING TO
ASCERTAIN AND APPLY IT. 

NO MAN OR GROUP IS ABOVE THE LAW.  NOR IS ANY BEYOND ITS PROTECTION. 
IN RE YAMASHITA, 327 U.S. 1, DISSENTING OPINION, 41.  THESE TRUTHS
APPLY EQUALLY TO THE GOVERNMENT.  WHEN ITS POWER IS EXERTED AGAINST THE
CITIZEN OR ANOTHER IN THE NATION'S COURTS, THOSE TRIBUNALS STAND NOT AS
PARTISANS, BUT AS INDEPENDENT AND IMPARTIAL ARBITERS TO SEE THAT THE
BALANCE BETWEEN POWER AND RIGHT IS HELD EVEN.  IN DISCHARGING THAT HIGH
FUNCTION THE COURTS THEMSELVES, LIKE THE PARTIES, ARE SUBJECT TO THE
LAW'S MAJESTIC LIMITATIONS.  WE ARE NOT FREE TO DECIDE THIS CASE, OR
ANY, OTHERWISE THAN AS IN CONSCIENCE WE ARE ENABLED TO SEE WHAT THE LAW
COMMANDS.                                        I. 

MR. JUSTICE FRANKFURTER HAS SHOWN CONCLUSIVELY, I THINK, THAT THE
POLICY OF THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, APPLIES TO THIS
SITUATION.  THE LEGISLATIVE HISTORY HE MARSHALS SO ACCURATELY AND
COGENTLY COMPELS THE CONCLUSION THAT THE WAR LABOR DISPUTES ACT OF
1943, 57 STAT. 163, NOT ONLY CONFIRMS THE APPLICABILITY OF THE EARLIER
STATUTE, BUT ITSELF EXCLUDES RESORT TO INJUNCTIVE RELIEF FOR
ENFORCEMENT OF ITS OWN PROVISIONS IN SITUATIONS OF THIS SORT. 

THAT ACT EXPRESSLY PROVIDES THE REMEDIES FOR ITS ENFORCEMENT.  BEYOND
SEIZURE OF PLANTS, MINES AND FACILITIES FOR TEMPORARY  FN2
GOVERNMENTAL OPERATION, THEY ARE EXCLUSIVELY CRIMINAL IN CHARACTER. 
FN3  THEY DO NOT INCLUDE INJUNCTIVE OR OTHER EQUITABLE RELIEF.  NOR WAS
THE OMISSION UNINTENTIONAL OR DUE TO OVERSIGHT.  IT WAS SPECIFIC AND
DELIBERATE. 

THE SENATE THOROUGHLY CONSIDERED AND DEBATED VARIOUS PROPOSALS FOR
AUTHORIZING EQUITY TO INTERVENE IN LABOR DISPUTES, ONE BY THE ACT'S
SPONSOR IN THAT BODY.  POSITIVELY, REPEATEDLY AND UNWAVERINGLY IT
REJECTED ALL OF THEM.  THEY WERE LIKEWISE REJECTED IN CONFERENCE, WHERE
THE SENATE'S VIEW PREVAILED OVER THAT OF THE HOUSE.  THE LATTER BODY
HAD NOT BEEN INATTENTIVE TO THE PROBLEM.  IT SOUGHT AND FAILED TO
SECURE THE VERY THING THIS COURT NOW SAYS, IN EFFECT, WAS INCLUDED. 
FN4  THAT ISSUE AND THAT POLICY WERE INDEED THE MAIN THRUST AND FOCUS
OF THE LEGISLATIVE STRUGGLE, AND THE OUTCOME WAS NOT NEGATIVE; IT WAS
POSITIVE AND CONCLUSIVE AGAINST USING OR GIVING THE EQUITABLE
REMEDIES. 

SURELY WE HAVE NOT COME SO FAR TOWARD COMPLETE INVERSION OF
LEGISLATIVE HISTORY AS TO WRITE OUT OF THE LAW THE VIEWS CONCERNING A
MATTER OF SUCH MAJOR POLICY HELD BY THE CHAMBER WHICH PREVAILED AT THE
FINAL STAGE OF ENACTMENT AND TO WRITE INTO THE LAW DIAMETRICALLY
OPPOSING VIEWS OF ANOTHER CHAMBER WHICH YIELDED AT THAT TIME.  THE
CASE, AS MR. JUSTICE FRANKFURTER DEMONSTRATES BEYOND ANY DOUBT, CANNOT
BE ONE WHERE INATTENTION, OVERSIGHT OR INACTION MAY EXPLAIN OR GIVE
SIGNIFICANCE TO WHAT WAS DONE BY THE HOUSE OF REPRESENTATIVES.  THAT
BODY WAS DEFEATED, NOT SIMPLY SILENT, IN THE OUTCOME.  WILLINGLY OR
OTHERWISE, IT ACQUIESCED IN THE SENATE'S POLICY OF REFUSING TO
AUTHORIZE INJUNCTIVE RELIEF, AND IN DOING SO JOINED FORMALLY AND
EFFECTIVELY IN THE FINAL ACT WHICH MADE THAT POLICY LAW. 

THIS MEANS TO ME THAT CONGRESS, IN THAT ACTION, DID NOT SIMPLY
CONFIRM THE NORRIS-LAGUARDIA ACT'S POLICY OR LEAVE IT UNTOUCHED WITH
RESPECT TO SITUATIONS WITHIN THE WAR LABOR DISPUTES ACT'S COVERAGE.  IT
MEANS THAT CONGRESS WAS NOT DEPARTING FROM OR NULLIFYING THAT POLICY. 
RATHER BY THE LATER ACT CONGRESS ADOPTED THE SAME POLICY, THE LONG
PREVAILING NATIONAL POLICY, FOR THOSE SITUATIONS. 

THE SENATE, AND AT THE END THE CONGRESS, WERE NOT DECLINING EXPRESSLY
TO AUTHORIZE LABOR INJUNCTIONS ONLY TO TURN SQUARELY ABOUT AND NULLIFY
THAT REFUSAL IN THE SAME BREATH, MERELY BY VIRTUE OF THE FACT THAT THE
EMPLOYEES OF SEIZED PLANTS NECESSARILY WERE MADE SUBJECT TEMPORARILY TO
ULTIMATE GOVERNMENTAL OPERATING DIRECTION AND CONTROL N5.  WE CANNOT
ATTRIBUTE TO CONGRESS AN INTENT SO DUPLICITOUS.  THUS TO CONSTRUE THE
ACT NOT ONLY WOULD BRING THE PROVISION FOR TEMPORARY CONTROL INTO
COLLISION WITH ITS REMEDIAL PROVISIONS AS THE HISTORY SHOWS THEY WERE
INTENDED TO APPLY.  IT WOULD BE TO FIND CONGRESS GUILTY OF USING A
DEVIOUS METHOD FOR ACHIEVING INDIRECTLY EXACTLY THE THING IT EXPRESSLY
DECLINED TO DO.  THE WORDS "GOVERNMENTAL EMPLOYEE," "EMPLOYEE  ... FOR
THE PURPOSES OF THIS CASE" OR "RELATIONSHIP  ...  OF EMPLOYER AND
EMPLOYEE," NONE OF WHICH APPEAR IN THE STATUTE, CANNOT BE GIVEN EFFECT
CONSISTENTLY WITH OUR FUNCTION TO WRITE INTO THE ACT, BY JUDICIAL
INTERPOLATION, REMEDIAL PROVISIONS WHICH CONGRESS FLATLY AND FINALLY
DECLINED TO INCORPORATE. 

WHETHER CONGRESS ACTED WISELY IN THIS REFUSAL IS NOT OUR CONCERN. 
BUT IT IS NOT IRRELEVANT TO THE ACT'S MEANING, PURPOSE AND EFFECT THAT
THERE WERE GOOD REASONS, INDEED STRONG ONES, FOR CONGRESS TO CONTINUE
TO FOLLOW THE NORRIS-LAGUARDIA ACT'S POLICY RATHER THAN BREAK AWAY FROM
IT AT THAT CRUCIAL TIME.  UNDER THE STATUTE PRACTICALLY EVERY
INDUSTRIAL OR MINING FACILITY, TOGETHER WITH MANY OF TRANSPORTATION N6,
WAS SUBJECT TO SEIZURE AND GOVERNMENTAL OPERATION.  INTRODUCING THE
LABOR INJUNCTION INTO THE ACT'S STRUCTURE THEREFORE WOULD HAVE BEEN
TANTAMOUNT TO REPEAL OF THE NORRIS-LAGUARDIA ACT FOR THE DURATION OF
THE EMERGENCY POWERS, SINCE SEIZURE WAS AUTHORIZED WHENEVER THE
PRESIDENT SHOULD FIND, AFTER INVESTIGATION, AND PROCLAIM THAT THERE WAS
AN INTERRUPTION OF OPERATIONS "AS A RESULT OF A STRIKE OR OTHER LABOR
DISTURBANCE."  SEC. 3.  READY MEANS THUS WOULD HAVE BEEN MADE
AVAILABLE, IF SUCH HAD BEEN THE STATUTE'S PURPOSE, FOR SUSPENDING THE
NORRIS-LAGUARDIA POLICY AND PROVISIONS IN ANY CASE WHERE THEY MIGHT
BECOME OPERATIVE. 

CONGRESS WAS THOROUGHLY FAMILIAR WITH THE HISTORY AND EFFECTS OF
INJUNCTIONS IN LABOR DISPUTES, WITH THE LONG SETTLED NATIONAL POLICY
AGAINST THEM, AND WITH THE UNIVERSAL ABHORRENCE IN THE RANKS OF LABOR,
HOWEVER OTHERWISE DIVIDED, TOWARD THEM.  IN VIEW OF ALL THESE THINGS
CONGRESS WELL MAY HAVE FELT AND I THINK DID FEEL, AS MY BROTHER'S
RECITAL OF THE HISTORY SHOWS, THAT IT WAS BOTH UNNECESSARY AND UNWISE,
PERHAPS WOULD EVEN BE HARMFUL TO FURTHERANCE OF THE WAR EFFORT, IN
SUBSTANCE TO REPEAL THE NORRIS-LAGUARDIA POLICY FOR THE DURATION OF THE
WAR EMERGENCY AND THUS TO RESURRECT, IN THAT CRITICAL SITUATION, THE
LONG DISUSED INSTRUMENTS THAT ACT HAD OUTLAWED. 

IT IS IMPORTANT IN THIS CONNECTION THAT 1943, RATHER THAN 1945 OR
1946, WAS THE YEAR IN WHICH THE WAR LABOR DISPUTES ACT WAS ADOPTED.  WE
WERE THEN NOT YET OVER THE HUMP OF THE WAR.  BUT NEITHER HAD WE REACHED
THE PEAK OF LABOR DISTURBANCES WHICH CAME ONLY AFTER ACTIVE HOSTILITIES
CEASED, MORE THAN TWO YEARS LATER.  FN7  THE GREAT BODY OF AMERICAN
WORKERS WAS BENDING TO THE PATRIOTIC DUTY OF PEAK PRODUCTION FOR WAR
PURPOSES.  BY COMPARISON WITH WHAT OCCURRED AFTER THE FIGHTING ENDED,
THE VOLUME OF MAN-DAYS LOST WAS ABOUT ONE-TENTH OF THE LATER POSTWAR
PEAK LOSS.  FN8  MOREOVER, AT THAT TIME THE WAR LABOR BOARD, SPECIALLY
CONSTITUTED TO DEAL WITH SUCH DISTURBANCES, WAS FUNCTIONING WITH A HIGH
DEGREE OF EFFICIENCY IN THEIR SETTLEMENT.  FN9  THERE WAS NEVERTHELESS
STRONG FEELING THAT LABOR DISPUTES SHOULD NOT BE ALLOWED TO INTERRUPT
WAR PRODUCTION, REGARDLESS OF CAUSE OR BLAME.  AND FROM THIS AROSE THE
DEMAND FOR MORE EFFECTIVE POWERS TO DEAL WITH THEM. 

IT WAS IN THIS SETTING AND TO MEET THE PROBLEMS IT HAD THROWN UP, NOT
THE LATER ONE OUT OF WHICH THIS CONTROVERSY AROSE, THAT THE WAR LABOR
DISPUTES ACT WAS ADOPTED.  THE ACT WAS EXACTLY WHAT ITS TITLE
INDICATED, A MEASURE FOR DEALING WITH LABOR DISPUTES IN THE EMERGENCY
OF THE WAR.  CONGRESS, IT IS TRUE, ANTICIPATED THAT FOR A LIMITED
PERIOD AFTER THE END OF FIGHTING THE SAME EMERGENCY POWERS WOULD BE
NEEDED.  FN10  BUT THIS DOES NOT MEAN THAT THOSE POWERS WERE SHAPED, OR
ARE NOW TO BE MEASURED IN SCOPE, SO AS TO MEET ALL OF THE SITUATIONS
WHICH SINCE HAVE ARISEN IN THE VASTLY CHANGED CIRCUMSTANCES; OR THAT
CONGRESS INTENDED THEM TO BE MET BY REPEALING THE SETTLED POLICY
AGAINST INJUNCTIONS IN LABOR DISPUTES IN THE SWEEPING MANNER NOW
ACCOMPLISHED BY THE COURT'S DECISION.  ON THE CONTRARY, IN JUNE OF
1943, CONGRESS DEALT WITH THE SITUATION THEN BEFORE IT AND REFUSED TO
AUTHORIZE SUCH RELIEF BECAUSE THAT SITUATION DID NOT DEMAND THIS. 

IN VIEW OF ALL THESE CONSIDERATIONS, I CANNOT BELIEVE THAT CONGRESS,
IN EFFECT AND BY INDIRECTION, WAS EXERTING ITS WAR POWER TO THE
GREATEST POSSIBLE EXTENT OR WAS THEREBY EITHER REPEALING OR SUSPENDING
THE NATION'S SETTLED POLICY AGAINST INJUNCTIONS IN LABOR DISPUTES. 
RATHER, THE CONCLUSION IS INESCAPABLE THAT CONGRESS WAS RELYING
EXCLUSIVELY UPON THE ADDED POWERS OF ENFORCEMENT EXPRESSLY CONFERRED BY
THE ACT, NAMELY, THE POWER OF SEIZURE AND THE FORCE OF THE CRIMINAL
SANCTION, TO ACCOMPLISH THE NEEDED RESULTS.  FN11 

THESE WERE IN THEMSELVES POWERFUL SANCTIONS.  THEY CARRIED WITH THEM
THE ADDED AND VERY GREAT SANCTION OF AROUSED PUBLIC OPINION  FN12
WHICH WOULD FOLLOW NOT SIMPLY UPON INTERRUPTION OF ESSENTIAL WAR
PRODUCTION BUT MORE PARTICULARLY UPON SUCH AN EVENT IN ANY FACILITY
TAKEN OVER AND OPERATED UNDER GOVERNMENTAL AUSPICES.  CONGRESS, AFTER
MATURE DELIBERATION, CONCLUDED THAT THESE SANCTIONS WERE ADEQUATE, AND
FOR THAT REASON MADE THEM EXCLUSIVE.  IN NO OTHER WAY CAN ITS REPEATED
AND FINAL REFUSALS TO CONFER THE STRENUOUSLY SOUGHT EQUITABLE REMEDIES
BE MADE CONSISTENT WITH THE LEGISLATIVE AND GENERAL HISTORY OR BE GIVEN
MEANING AND EFFECT.  TO CONSTRUE THE ACT AS PERMITTING WHAT CONGRESS
THUS SO EXPLICITLY REFUSED TO ALLOW IS TO GO BEYOND OUR FUNCTION AND
INTRUDE UPON THAT OF CONGRESS.  THIS WE HAVE NO RIGHT OR POWER TO DO.
IF THE SITUATION PRESENTED BY THE FACTS OF THIS CASE IS ONE WHICH GOES
BEYOND THE POWERS CONGRESS HAS CONFERRED FOR DEALING WITH IT, THAT IS A
MATTER FOR CONGRESS' CONSIDERATION, NOT FOR CORRECTION BY THIS COURT. 

ACCORDINGLY, UPON THE SPECIFIC TERMS OF THE WAR LABOR DISPUTES ACT
ITSELF, UPON THE LEGISLATIVE HISTORY AS SUMMARIZED BY MR. JUSTICE
FRANKFURTER, AND UPON THE HISTORICAL SETTING IN WHICH THE STATUTE WAS
ENACTED AS DEFINING THE PROBLEMS IT WAS DESIGNED TO MEET, TOGETHER WITH
SHAPING THE NATURE AND SCOPE OF THE MEASURES REQUIRED TO MEET THEM, I
CONCLUDE THAT THAT ACT IN NO WAY IMPAIRED BUT ON THE CONTRARY ADOPTED
AND INCORPORATED THE POLICY OF THE NORRIS-LAGUARDIA ACT CONCERNING THE
ISSUANCE OF INJUNCTIONS IN LABOR DISPUTES. 

                            II. 

THIS CONCLUSION SUBSTANTIALLY COMPELS THE FURTHER ONE THAT UNITED
STATES V. SHIPP, 203 U.S. 563, HAS NO VALID APPLICATION TO THE
SITUATION PRESENTED BY THIS CASE. 

THIS COURT HAS NOT YET EXPRESSLY DENIED, RATHER IT HAS REPEATEDLY
CONFIRMED CONGRESS' POWER TO CONTROL THE JURISDICTION OF THE INFERIOR
FEDERAL COURTS AND ITS OWN APPELLATE JURISDICTION.  CONST., ART. III,
SEC. 2.  EX PARTE MCCARDLE, 7 WALL.  506; LOCKERTY V. PHILLIPS, 319
U.S. 182, 187, AND AUTHORITIES CITED.  SEE WARREN, NEW LIGHT ON THE
HISTORY OF THE FEDERAL JUDICIARY ACT OF 1789(1923), 37 HARV. L. REV.
49, 67 FF.  THAT POWER INCLUDES THE POWER TO DENY JURISDICTION AS WELL
AS TO CONFER IT.  IBID.  AND WHERE CONGRESS HAS ACTED EXPRESSLY TO
EXCLUDE PARTICULAR SUBJECT MATTER FROM THE JURISDICTION OF ANY COURT,
EXCEPT THIS COURT'S ORIGINAL JURISDICTION, I KNOW OF NO DECISION HERE
WHICH HOLDS THE EXCLUSION INVALID, OR THAT A REFUSAL TO OBEY ORDERS OR
JUDGMENTS CONTRAVENING CONGRESS' MANDATE IS CRIMINAL OR AFFORDS CAUSE
FOR PUNISHMENT AS FOR CONTEMPT. 

IF THAT WERE THE LAW, THE RESULT COULD ONLY BE TO NULLIFY THE
CONGRESSIONAL POWER OVER FEDERAL JURISDICTION FOR A GREAT VOLUME OF
CASES.  AND IF IT SHOULD BECOME THE LAW, FOR EVERY CASE RAISING A
QUESTION NOT FRIVOLOUS CONCERNING THE COURT'S JURISDICTION TO ENTER AN
ORDER OR JUDGMENT, THAT PUNISHMENT FOR CONTEMPT MAY BE IMPOSED
IRREVOCABLY SIMPLY UPON A SHOWING OF VIOLATION, THE CONSEQUENCES WOULD
BE EQUALLY OR MORE SERIOUS.  THE FORCE OF SUCH A RULE, MAKING THE PARTY
ACT ON PAIN OF CERTAIN PUNISHMENT REGARDLESS OF THE VALIDITY OF THE
ORDER VIOLATED OR THE COURT'S JURISDICTION TO ENTER IT AS DETERMINED
FINALLY UPON REVIEW, WOULD BE NOT ONLY TO COMPEL SUBMISSION.  FN13  IT
WOULD BE ALSO IN PRACTICAL EFFECT FOR MANY CASES TO TERMINATE THE
LITIGATION, FORECLOSING THE SUBSTANTIVE RIGHTS INVOLVED WITHOUT ANY
POSSIBILITY FOR THEIR EFFECTIVE APPELLATE REVIEW AND DETERMINATION. 

THIS WOULD BE TRUE, FOR INSTANCE, WHEREVER THE SUBSTANTIVE RIGHTS
ASSERTED OR THE OPPORTUNITY FOR EXERCISING THEM WOULD VANISH WITH
OBEDIENCE TO THE CHALLENGED ORDER.  CF. EX PARTE FISK, 113 U.S. 713. 
THE FIRST AMENDMENT LIBERTIES ESPECIALLY WOULD BE VULNERABLE TO
NULLIFICATION BY SUCH CONTROL.  THUS, THE CONSTITUTIONAL RIGHTS OF FREE
SPEECH AND FREE ASSEMBLY COULD BE BROUGHT TO NAUGHT AND CENSORSHIP
ESTABLISHED WIDELY OVER THOSE AREAS MERELY BY APPLYING SUCH A RULE TO
EVERY CASE PRESENTING A SUBSTANTIAL QUESTION CONCERNING THE EXERCISE OF
THOSE RIGHTS.  THIS COURT HAS REFUSED TO COUNTENANCE A VIEW SO
DESTRUCTIVE OF THE MOST FUNDAMENTAL LIBERTIES.  THOMAS V. COLLINS, 323
U.S. 516.  THESE AND OTHER CONSTITUTIONAL RIGHTS WOULD BE NULLIFIED BY
THE FORCE OF INVALID ORDERS ISSUED IN FLAT VIOLATION OF THE
CONSTITUTIONAL PROVISIONS SECURING THEM, AND VOID FOR THAT REASON.  THE
SAME THING WOULD BE TRUE ALSO IN OTHER CASES INVOLVING DOUBT, WHERE
STATUTORY OR OTHER RIGHTS ASSERTED OR THE BENEFIT OF ASSERTING THEM
WOULD VANISH, FOR ANY PRACTICAL PURPOSE, WITH OBEDIENCE. 

INDEED IT WAS BECAUSE THESE WERE SO OFTEN THE EFFECTS, NOT SIMPLY OF
FINAL ORDERS ENTERED AFTER DETERMINATION UPON THE MERITS, BUT OF
INTERLOCUTORY INJUNCTIONS AND EX PARTE RESTRAINING ORDERS, THAT THE
NORRIS-LAGUARDIA ACT BECAME LAW AND, AS I THINK, THE WAR LABOR DISPUTES
ACT CONTINUED IN FORCE ITS POLICY.  FOR IN LABOR DISPUTES THE EFFECT OF
SUCH ORDERS, IT WAS POINTED OUT OFFICIALLY AND OTHERWISE,  FN14  IS
GENERALLY NOT MERELY FAILURE TO MAINTAIN THE STATUS QUO PENDING FINAL
DECISION ON THE MERITS.  IT IS ALSO MOST OFTEN TO BREAK THE STRIKE,
WITHOUT REGARD TO ITS LEGALITY OR ANY CONCLUSIVE DETERMINATION ON THAT
ACCOUNT, AND THUS TO RENDER MOOT AND ABORTIVE THE SUBSTANTIVE
CONTROVERSY.  FN15 

IT IS NOT EVERY CASE THEREFORE WHERE SUBSTANTIAL DOUBT APPEARS,
CONCERNING EITHER THE ISSUES IN THE MAIN CAUSE OR THE COURT'S
JURISDICTION TO ISSUE INTERLOCUTORY OR OTHER ORDERS, IN WHICH VIOLATION
WILL BRING THE SO-CALLED SHIPP DOCTRINE INTO PLAY.  IF THAT WERE TRUE,
THEN INDEED WOULD A WAY HAVE BEEN FOUND TO NULLIFY THE CONSTITUTIONAL
LIMITATIONS PLACED UPON THE POWERS OF COURTS, INCLUDING THE CONTROL OF
CONGRESS OVER THEIR JURISDICTION.  THEN ALSO THE LIBERTIES OF OUR
PEOPLE WOULD BE PLACED LARGELY AT THE MERCY OF INVALID ORDERS ISSUED
WITHOUT POWER GIVEN BY THE CONSTITUTION AND IN CONTRAVENTION OF POWER
CONSTITUTIONALLY WITHHELD BY CONGRESS.  EX PARTE FISK, 113 U.S. 713;
THOMAS V. COLLINS, SUPRA.    INDEED THE SHIPP DOCTRINE THUS BROADLY
CONCEIVED WOULD GO FAR TOWARD NULLIFYING THE HISTORIC JURISDICTION OF
THIS COURT AND OTHERS IN HABEAS CORPUS, FOR IT WOULD DO THIS IN THE
MANY SITUATIONS WHERE THE CAUSE OF COMMITMENT IS VIOLATION OF A
DOUBTFULLY VALID COURT ORDER AND THE GROUND ASSERTED FOR RELEASE IS THE
COURT'S LACK OF JURISDICTION TO ENTER IT.  THUS, IN THIS CASE, IF THE
PARTY LEWIS HAD BEEN IMPRISONED RATHER THAN FINED, THE BROAD
APPLICATION NOW MADE OF THE SHIPP DECISION WOULD DICTATE THAT HE COULD
NOT BE RELEASED BY HABEAS CORPUS, EVEN THOUGH IT WERE NOW HELD HERE
THAT THE RESTRAINING ORDERS WERE BEYOND THE DISTRICT COURT'S
JURISDICTION TO ISSUE.  FN16  IF THOSE ORDERS WERE VALID, FOR PURPOSES
OF FINALLY AND CONCLUSIVELY IMPOSING PUNISHMENT IN CONTEMPT, REGARDLESS
OF THE COURT'S WANT OF POWER TO ISSUE THEM, THIS WOULD BE SO WHETHER
THE PUNISHMENT WERE FINE OR IMPRISONMENT.  AND IT CLEARLY WOULD FOLLOW
IN CASES OF CRIMINAL CONTEMPT, FN17  PERHAPS IN OTHERS, THAT THE
COURT'S LACK OF JURISDICTION COULD FURNISH NO BASIS FOR GRANTING
RELIEF, UNLESS THE PENALTY WERE FOUND TO BE CRUEL AND UNUSUAL OR, IN
THE CASE OF A FINE, EXCESSIVE.  FN18 

I CANNOT BELIEVE THAT THE HISTORIC POWERS OF OUR COURTS IN HABEAS
CORPUS OR THE RIGHTS OF CITIZENS, CONFIRMED AS THESE HAVE BEEN FOR SO
LONG BY AN UNBROKEN LINE OF DECISIONS N19, HAVE BEEN OR CAN BE
OVERTHROWN AND SUBVERTED, MERELY BY THE FACT THAT THE QUESTION OF THE
COURT'S POWER TO ISSUE THE ORDER VIOLATED MAY BE DOUBTFUL AND NOT
MERELY FRIVOLOUS.  NOR DO I THINK THE SHIPP DECISION ACCOMPLISHED OR
PURPORTED TO ACCOMPLISH SO MUCH. 

CERTAINLY IF ITS PURPOSE HAD BEEN TO OVERRULE THE DECISIONS SO
THOROUGHLY ESTABLISHED, AND TO TRENCH SO HEAVILY UPON THE HISTORIC
LIBERTIES THEY AND THE CONSTITUTION ITSELF SECURE, SOME NOTE WOULD HAVE
BEEN TAKEN OF THAT FACT.  SO GREAT A REVOLUTION HARDLY COULD HAVE BEEN
WROUGHT UNANIMOUSLY OR WITHOUT ATTENTIVE RECOGNITION OF WHAT WAS BEING
DONE.  THERE WAS INDEED REFERENCE IN THE OPINION TO THE PREVIOUS
DECISIONS.  THE COURT STATED:  "IT HAS BEEN HELD, IT IS TRUE, THAT
ORDERS MADE BY A COURT HAVING NO JURISDICTION TO MAKE THEM MAY BE
DISREGARDED WITHOUT LIABILITY TO PROCESS FOR CONTEMPT," CITING THE
SAWYER, FISK, AND ROWLAND CASES.  FN20  203 U.S. AT 573.  BUT THERE WAS
NOT THE SLIGHTEST SUGGESTION, BY THIS REFERENCE OR OTHERWISE, THAT THE
COURT HAD ANY PURPOSE WHATEVER TO IMPAIR THE FORCE OF THOSE DECISIONS,
MUCH LESS TO OVERRULE THEM.  NOR IN FACT WAS THIS ITS INTENT.  IT
MENTIONED THEM ONLY TO PUT THEM ASIDE AS INAPPLICABLE TO THE SITUATION
BEFORE IT. 

INDEED, IN GOMPERS V. BUCKS STOVE & R. CO., 221 U.S. 418, DECIDED
FIVE YEARS AFTER THE SHIPP DECISION, A UNANIMOUS COURT JOINED IN CITING
EX PARTE ROWLAND, 104 U.S. 604, IN CONTEXT CONSISTENT ONLY WITH THE
VIEW THAT ITS DOCTRINE, AND THEREFORE THAT OF OTHERS LIKE IT DECIDED
PRIOR TO THE SHIPP CASE, REMAINED FULLY EFFECTIVE.  P. 436.  THERE WAS
NO INTIMATION, AS OTHERWISE NECESSARILY WOULD HAVE BEEN GIVEN, THAT THE
SHIPP DECISION HAD REVERSED OR MODIFIED THE ROWLAND CASE, OR ANY LIKE
IT, IN ANY WAY.  AND IN EX PARTE YOUNG, 209 U.S. 123, NOT ONLY THE
COURT, P. 143, BUT THE OPPOSING DISTINGUISHED COUNSEL, PP. 135, 139,
ALL CONCURRED IN REAFFIRMING THE ROWLAND RULING.  HARLAN, J.,
DISSENTING, RETRACTED HIS FORMER CONTRARY VIEW (SEE NOTE 19 SUPRA) IN
THIS RESPECT.  PP. 169, 174.  AND HOLMES, J., WHO SPOKE FOR THE COURT
IN THE SHIPP CASE, JOINED WITH THE COURT'S REAFFIRMATION OF THE ROWLAND
DOCTRINE IN BOTH THE GOMPERS AND YOUNG OPINIONS. 

THE COURT IN SHIPP WAS DEALING WITH A SITUATION QUITE DIFFERENT FROM
THE ONES PRESENTED IN THE PREVIOUS DECISIONS AND IN THIS CASE.  IN NONE
OF THEM WAS THE ACTION WHICH VIOLATED THE COURT'S ORDER SUCH AS WOULD
HAVE DEFEATED ITS JURISDICTION NOT ONLY TO ENTER THE ORDER BUT ALSO TO
PROCEED WITH THE CAUSE BEFORE IT IN ANY MANNER, EXCEPT TO DEAL WITH THE
MATTER OF CONTEMPT.  FN21  IN THEM THE COURT WAS NOT FACED WITH THE
NECESSITY FOR TAKING ACTION TO VINDICATE ITS POWER TO HEAR AND
DETERMINE THE MAIN CONTROVERSY, AS WELL AS THE INCIDENTAL ONE ARISING
UPON THE VALIDITY OF THE INTERLOCUTORY OR OTHER ORDER.  NOR IS IT
HERE. 

BUT EXACTLY SUCH A SITUATION WAS PRESENTED IN THE SHIPP CASE.  THE
CONDUCT THERE HELD TO BE CONTEMPT NOT ONLY WAS IN ITSELF CRIMINAL AND
IN VIOLATION, AS IT TURNED OUT, OF THIS COURT'S LAWFUL ORDER FOR TAKING
THE APPEAL IN JOHNSON'S CASE.  IT OUSTED THIS COURT ALTOGETHER OF
JURISDICTION TO TAKE ANY ACTION IN THAT CAUSE.  IT RENDERED THE CAUSE
MOOT, THEREBY PUTTING AN END TO ANY PROCEEDINGS CONCERNING IT HERE OR
ELSEWHERE.  SHIPP'S ALLEGED CONDUCT CONSTITUTED THEREFORE THE MOST
SERIOUS POSSIBLE INTERFERENCE WITH THE DUE AND ORDERLY COURSE OF
ADMINISTERING JUSTICE.  IT UTTERLY DESTROYED THE POWER OF ALL COURTS TO
ACT.  FURTHER, THE ORDER VIOLATED WAS NOT MADE DIRECTLY IN
CONTRAVENTION OF AN ACT OF CONGRESS, AS WAS TRUE IN THE FISK CASE AND,
AS I THINK, IN THIS ONE.  IT RATHER WAS MADE IN COMPLETE CONFORMITY
WITH THE STATUTES CONFERRING AUTHORITY ON THIS COURT TO TAKE
JURISDICTION OF AND HEAR SUCH CAUSES.  NOTHING IN IT VIOLATED EITHER A
CONGRESSIONAL MANDATE AND POLICY OR THE RIGHTS OF ANY PARTY. 

MOREOVER THE DECISION WAS NOT EFFECTIVE, AS ITS DOCTRINE IS NOW SAID
TO BE, TO PUT SHIPP TO ANY CHOICE OF OBEDIENCE ON PAIN OF CERTAIN
PUNISHMENT REGARDLESS OF THE VIOLATED ORDER'S VALIDITY OR INVALIDITY AS
ULTIMATELY DETERMINED ON REVIEW.  NO SUCH SITUATION WAS PRESENTED ON
THE FACTS, AND NO SUCH RULING COULD PROPERLY HAVE BEEN MADE.  SHIPP HAD
NOT BEEN CONVICTED.  THE CASE CAME HERE UPON A CHALLENGE IN LIMINE, NOT
AFTER THE EVENT, MADE UPON THE PLEADINGS IN THE CONTEMPT PROCEEDINGS TO
THEIR VALIDITY.  THE BASIS ASSERTED WAS THE INVALIDITY OF THE ORDER
ALLOWING THE APPEAL IN JOHNSON'S CASE, FOR ALLEGED WANT OF JURISDICTION
OF THIS COURT TO ENTER IT.  FN22  THAT CONTENTION WAS REJECTED AND THE
ORDER WAS HELD VALID.  IT WAS IN THIS CONNECTION ONLY THAT THE COURT
STATED IT HAD "JURISDICTION TO DETERMINE ITS JURISDICTION" IN DOUBTFUL
CASES.  THAT STATEMENT WAS NOT A RULING THAT, REGARDLESS OF A VIOLATED
ORDER'S ULTIMATE VALIDITY AS DETERMINED ON REVIEW,  FN23  PUNISHMENT IN
CONTEMPT FOR VIOLATING IT COULD BE IRREVOCABLY IMPOSED.  IT WAS MERELY
A STATEMENT OF THE REASON FOR THE ORDER'S VALIDITY N24.  THE HOLDING
WAS THAT THIS COURT HAD JURISDICTION, AS OF COURSE IT DOES IN DOUBTFUL
AS WELL AS CLEAR CASES, TO DETERMINE WHETHER THE FEDERAL COURTS - THE
CIRCUIT COURT AND ACCORDINGLY THIS COURT ALSO - HAD POWER TO PASS UPON
JOHNSON'S PETITION FOR HABEAS CORPUS.  FN25 

FROM THAT RULING AND FROM IT ALONE THE CONSEQUENCE FOLLOWED THAT
SHIPP COULD BE HELD IN CONTEMPT ON PROOF, STILL TO BE MADE, THAT HE HAD
DONE ACTS IN VIOLATION OF THE ORDER AS THUS CONCLUSIVELY DETERMINED TO
BE VALID BY THE COURT OF LAST RESORT.  THIS WAS A FAR CRY FROM HOLDING
THAT PUNISHMENT IN CONTEMPT CAN BE LAID IRREVOCABLY, REGARDLESS OF THE
OUTCOME ON REVIEW CONCERNING THE ORDER'S VALIDITY.  THE COURT BY ITS
RULING WAS NOT MAKING VOID ORDERS VALID FOR PURPOSES OF PUNISHMENT BY
WAY OF CONTEMPT.  ONLY IF THE COURT HAS HELD ITS OWN ORDER WHICH SHIPP
VIOLATED INVALID WOULD SUCH A QUESTION HAVE BEEN PRESENTED. 

THE SHIPP DECISION THEREFORE WAS IN FACT SIMPLY AN APPLICATION OF THE
LONG ESTABLISHED RULE THAT PUNISHMENT IN CONTEMPT MAY BE INFLICTED ON
PROOF OF VIOLATION OF A VALID ORDER OF COURT AS DETERMINED FINALLY ON
REVIEW.  IT DID NOT OVERRULE, NOR WAS IT IN ANY WAY INCONSISTENT WITH
THE LONG PRIOR COURSE OF DECISIONS HOLDING THAT WHEN AN ORDER IS VOID
FOR WANT OF JURISDICTION IT MAY BE DISOBEYED WITH IMPUNITY PENDING BUT
DEPENDING UPON DETERMINATION OF ITS INVALIDITY BY APPEAL, HABEAS
CORPUS, OR OTHER MODE OF REVIEW.  GOMPERS V. BUCKS STOVE & R. CO.,
SUPRA; EX PARTE YOUNG, SUPRA.  IT WAS AN APPLICATION, IN THE
CIRCUMSTANCES PRESENTED, OF THE SETTLED RULE THAT ONE WHO TAKES IT UPON
HIMSELF TO VIOLATE AN ORDER OF COURT HE THINKS VOID THEREBY TAKES THE
RISK THAT ON REVIEW HE WILL BE SUSTAINED AND, IN THE CONTRARY EVENT AND
THEN ONLY, WILL HE BE SUBJECT IRREVOCABLY TO PUNISHMENT FOR CONTEMPT. 
IBID. 

IN MY JUDGMENT THIS IS THE RULE PROPERLY APPLICABLE IN THIS CASE, THE
ONLY ONE CONSISTENT WITH THE SETTLED AND UNVARIED COURSE OF DECISION,
WITH THE COMMANDS OF THE WAR LABOR DISPUTES ACT, OF THE NORRIS
LAGUARDIA ACT, AND WITH SEC. 268 OF THE JUDICIAL CODE, 36 STAT. 1163,
28 U.S.C. SEC. 385. 

APART FROM IMMEDIATE AND OTHER INTERFERENCES WITH JUDICIAL
PROCEEDINGS NOT PRESENTED HERE, THAT SECTION AUTHORIZES PUNISHMENT FOR
CONTEMPT ONLY FOR DISOBEDIENCE OF A "LAWFUL WRIT, PROCESS, ORDER, RULE,
DECREE, OR COMMAND OF THE SAID COURTS."  THE SECTION BY ITS TERMS,
APART FROM THE EXCEPTIONS NOT HERE APPLICABLE, LIMITS POWER TO PUNISH
FOR CONTEMPT TO VIOLATIONS OF LAWFUL ORDERS, THEREBY NECESSARILY
EXCLUDING OTHERS.  NOR DID IT PURPORT TO MAKE LAWFUL FOR THAT PURPOSE
INTERLOCUTORY ORDERS ISSUED WITHOUT JURISDICTION AS DETERMINED FINALLY
UPON REVIEW.  FN26 

THIS CASE, UNLIKE THE SHIPP CASE, IN NO WAY INVOLVES INTERFERENCE
WITH ANY OF THE LEGAL PROCEEDINGS OR THE DUE COURSE OF ADMINISTERING
JUSTICE IN ANY SENSE CONTEMPLATED BY SEC. 268 OR BY THE SHIPP
DECISION.  NO COURT, TRIAL OR APPELLATE, WAS DEPRIVED BY THE
DEFENDANTS' CONDUCT OF JURISDICTION OR POWER TO TAKE ANY ACTION IN ANY
OF THE PROCEEDINGS, COLLATERAL OR IN THE MAIN SUIT, WHICH EXISTED AT
THE BEGINNING OF THE CONTROVERSY.  THE ORDER THEREFORE FALLS
EXCLUSIVELY WITHIN THE CONCLUDING CLAUSE OF SEC. 268 AND THE POWER TO
PUNISH FOR CONTEMPT ON ACCOUNT OF ITS VIOLATION DEPENDS, BY THE COMMAND
OF THAT CLAUSE, UPON THE ORDER'S LAWFUL CHARACTER. 

SINCE IN MY OPINION THE ORDER WAS JURISDICTIONALLY INVALID WHEN
ISSUED, BY VIRTUE OF THE WAR LABOR DISPUTES ACT AND ITS ADOPTION OF THE
NORRIS-LAGUARDIA ACT'S POLICY, IT FOLLOWS THAT THE VIOLATION GAVE NO
SUFFICIENT CAUSE FOR SUSTAINING THE CONVICTION FOR CONTEMPT.  EX PARTE
FISK, SUPRA.  LEWIS AND THE UNITED MINE WORKERS NECESSARILY TOOK THE
RISK THAT THE ORDER WOULD BE FOUND VALID ON REVIEW AND, IN THAT EVENT,
THAT PUNISHMENT FOR CONTEMPT WOULD APPLY.  THEY DID NOT TAKE THE RISK
THAT IT WOULD APPLY IN ANY EVENT, EVEN IF THE ORDER SHOULD BE FOUND
VOID AS BEYOND THE JURISDICTION OF THE COURT TO ENTER.  SEE THE
DISSENTING OPINION IN CARTER V. UNITED STATES, 135 F.2D 858, 862.  THE
SHIPP CASE FURNISHES NO PRECEDENT FOR SUCH A VIEW NOR DO I KNOW OF ANY
OTHER IN THIS COURT WHICH DOES.  FN27 

ON THE CONTRARY THAT VIEW HAS BEEN LONG REJECTED, AND I DO NOT THINK
WE SHOULD DISTURB OR DEPART FROM THAT SETTLED COURSE OF DECISION NOW. 
"IF THE COMMAND OF THE WRIT (OF MANDAMUS) WAS IN EXCESS OF
JURISDICTION, SO NECESSARILY WERE THE PROCEEDINGS FOR CONTEMPT IN NOT
OBEYING."  EX PARTE ROWLAND, 104 U.S. 604, 617-618.  THE POWER OF THE
FEDERAL COURTS TO ISSUE STAY ORDERS TO MAINTAIN THE STATUS QUO PENDING
APPEAL, LIKE OTHER MATTERS AFFECTING THEIR JURISDICTION EXCEPT IN THE
CASE OF THIS COURT'S ORIGINAL JURISDICTION, IS SUBJECT TO CONGRESS'
CONTROL.  THAT CONTROL HAS BEEN EXERCISED, IN MY VIEW, TO EXCLUDE SUCH
JURISDICTION IN CASES OF THIS CHARACTER.  AND, THIS BEING TRUE, I DO
NOT THINK EITHER THIS OR ANY OTHER COURT SUBJECT TO THAT MANDATE HAS
POWER TO PUNISH AS FOR CONTEMPT THE VIOLATION OF SUCH AN ORDER ISSUED
IN CONTRAVENTION OF CONGRESS' COMMAND.  EX PARTE FISK, SUPRA.

       III. 

THE ISSUES CONCERNING THE MANNER IN WHICH THE CONTEMPT PROCEEDING WAS
CONDUCTED ARE IN THEMSELVES OF GREAT MOMENT, APART FROM THE FOREGOING
CONCLUSIONS WHICH I THINK ARE DISPOSITIVE OF THE CONTROVERSY.  AND THE
COURT'S RULINGS UPON THEM ARE OF SUCH A CHARACTER THAT I CANNOT ACCEDE
BY SILENCE. 

AT TIMES IN OUR SYSTEM THE WAY IN WHICH COURTS PERFORM THEIR FUNCTION
BECOMES AS IMPORTANT AS WHAT THEY DO IN THE RESULT.  IN SOME RESPECTS
MATTERS OF PROCEDURE CONSTITUTE THE VERY ESSENCE OF ORDERED LIBERTY
UNDER THE CONSTITUTION.  FOR THIS REASON, ESPECIALLY IN THE BILL OF
RIGHTS, SPECIFIC GUARANTIES HAVE BEEN PUT AROUND THE MANNER IN WHICH
VARIOUS LEGAL PROCEEDINGS SHALL BE CONDUCTED.  THEY DIFFERENTIATE
SHARPLY BETWEEN THE PROCEDURES TO BE FOLLOWED IN CRIMINAL PROCEEDINGS
AND IN CIVIL ONES.  THESE DIFFERENCES MARK ONE OF THE GREAT
CONSTITUTIONAL DIVIDES.  FN28  THEY SEPARATE THE ZONE OF PUNISHMENT FOR
CRIME, WITH ALL ITS ODIOUS CONSEQUENCES, FROM THAT OF GIVING CIVIL
RELIEF, WHERE NO SUCH CONSEQUENCES ATTEND, NOT PARTIALLY BUT
COMPLETELY. 

IN ANY OTHER CONTEXT THAN ONE OF CONTEMPT, THE IDEA THAT A CRIMINAL
PROSECUTION AND A CIVIL SUIT FOR DAMAGES OR EQUITABLE RELIEF COULD BE
HASHED TOGETHER IN A SINGLE CRIMINAL-CIVIL HODGEPODGE WOULD BE SHOCKING
TO EVERY AMERICAN LAWYER AND TO MOST CITIZENS.  TRUE, THE SAME ACT MAY
GIVE RISE TO ALL THESE VARIED LEGAL CONSEQUENCES.  BUT WE HAVE NEVER
ADOPTED, RATHER OUR CONSTITUTION HAS TOTALLY REJECTED, THE CONTINENTAL
SYSTEM OF COMPOUNDING CRIMINAL PROCEEDINGS WITH CIVIL ADJUDICATIONS. 
FN29  OUR TRADITION IS EXACTLY THE CONTRARY AND FEW WOULD MAINTAIN THAT
THIS HAS HAD NO PART IN BRINGING ABOUT THE DIFFERENCE EXISTING TODAY
FOR INDIVIDUAL FREEDOM HERE AND IN EUROPE. 

I DO NOT THINK THE CONSTITUTION CONTEMPLATED THAT THERE SHOULD BE IN
ANY CASE AN ADMIXTURE OF CIVIL AND CRIMINAL PROCEEDINGS IN ONE.  SUCH
AN IDEA IS ALTOGETHER FOREIGN TO ITS SPIRIT.  THERE CAN BE NO QUESTION
THAT CONTEMPT POWER WAS CONFERRED ADEQUATE TO SUSTAIN THE JUDICIAL
FUNCTION, IN BOTH CIVIL AND CRIMINAL FORMS.  BUT IT DOES NOT FOLLOW
THAT THE CONSTITUTION PERMITS LUMPING THE TWO TOGETHER OR DISCARDING
FOR THE CRIMINAL ONE ALL OF THE PROCEDURAL SAFEGUARDS SO CAREFULLY
PROVIDED FOR EVERY OTHER SUCH PROCEEDING.    THE FOUNDERS DID NOT
COMMAND THE IMPOSSIBLE.  THEY COULD NOT HAVE CONCEIVED THAT PROCEDURES
SO IRRECONCILABLY INCONSISTENT IN MANY WAYS  FN30  COULD BE APPLIED
SIMULTANEOUSLY.  NOR WAS THEIR PURPOSE TO CREATE ANY PART OF JUDICIAL
POWER, EVEN IN CONTEMPT, WHOLLY AT LARGE, FREE FROM ANY CONSTITUTIONAL
LIMITATION OR TO PICK AND CHOOSE BETWEEN THE CONFLICTING CIVIL AND
CRIMINAL PROCEDURES AND REMEDIES AT WILL.  MUCH LESS WAS IT TO ALLOW
MIXING CIVIL REMEDIES AND CRIMINAL PUNISHMENTS IN ONE LUMPED FORM OF
RELIEF, INDISTINGUISHABLY COMPOUNDING THEM AND THUS PUTTING BOTH IN
UNLIMITED JUDICIAL DISCRETION, WITH NO POSSIBILITY OF APPLYING ANY
STANDARD OF MEASUREMENT ON REVIEW.  FN31 

IF THIS CAN BE DONE IN ANY CASE, IT CAN BE DONE IN OTHERS.  AND THAT
BEING TRUE, IF IT CAN BE DONE AT ALL, NOT SIMPLY A LOOPHOLE BUT A VERY
LARGE BREACH HAS BEEN LEFT IN THE WALL OF PROCEDURAL PROTECTIONS THROWN
AROUND THE CITIZEN'S PUNISHMENT FOR CRIME.  FOR IT IS TO BE RECALLED
THAT UNDER THE COURT'S RULING HERE UPON THE SHIPP DOCTRINE NOT MERELY
THE VIOLATION OF VALID JUDICIAL ORDERS, BUT ALSO THE DISOBEDIENCE OF
INVALID ORDERS ISSUED IN EXCESS OF ANY COURT'S JURISDICTION BECOMES A
CRIME AND PUNISHABLE AS SUCH BY SUMMARY PROCEEDINGS IN CRIMINAL
CONTEMPT, ALTHOUGH THE SUBSTANTIVE RIGHTS INVOLVED IN THE LITIGATION
ARE WHOLLY CIVIL ONES.  THE VASTLY EXPANDED AREA OF CRIMINAL CONDUCT
UNDER THIS CONCEPTION WOULD AFFORD EQUALLY WIDE ROOM FOR DISPENSING
WITH THE CRIMINAL PROCEDURAL PROTECTIONS UNDER THE UNRESTRICTED SCOPE,
OTHERWISE THAN BY "JUDICIAL DISCRETION," WHICH THE PRESENT RULING
CONCERNING CRIMINAL OR CRIMINAL-CIVIL PROCEEDINGS IN CONTEMPT AFFORDS. 

IN MY OPINION, OUR SYSTEM DOES NOT COMPREHEND A POWER SO UNCONFINED
ANYWHERE WITHIN ITS BROAD BORDERS, AND IT IS TIME THE LARGE CONFUSION
ABOUT THIS WERE SWEPT AWAY.  FN32  IT IS NOT NECESSARY IN THIS CASE TO
ASK OR DECIDE WHETHER ALL OF THE CONSTITUTION'S CRIMINAL PROCEDURAL
PROTECTIONS THROWN ABOUT ALL OTHER CRIMINAL PROSECUTIONS, WITHOUT
SUGGESTION OF EXPLICIT EXCEPTION, APPLY TO CRIMINAL CONTEMPT
PROCEEDINGS.  IT IS ENOUGH THAT WE ARE SURE SOME OF THEM APPLY, AS THIS
COURT HAS RULED REPEATEDLY.  FN33  IT DOES NOT MATTER THAT SOME OF
THOSE WHICH INCONTESTABLY ARE APPLICABLE MAY NOT HAVE BEEN PUT IN ISSUE
OR PRESERVED FOR REVIEW IN THIS CASE.  FN34  THE QUESTION CUTS MORE
DEEPLY THAN THE APPLICATION OF ANY SPECIFIC GUARANTY.  IT AFFECTS THE
RIGHT TO INSIST UPON OR HAVE THE BENEFIT OF ANY. 

THIS CASE IS CHARACTERISTIC OF THE LONG-EXISTING CONFUSION CONCERNING
CONTEMPTS AND THE MANNER OF THEIR TRIAL, AMONG OTHER THINGS, IN THAT
MOST FREQUENTLY THE QUESTION OF THE NATURE AND CHARACTER OF THE
PROCEEDING, WHETHER CIVIL OR CRIMINAL, IS DETERMINED AT ITS END IN THE
STAGE OF REVIEW RATHER THAN, AS IT SHOULD BE AND AS IN MY OPINION IT
MUST BE, AT THE BEGINNING.  GOMPERS V. BUCKS STOVE & R. CO., 221 U.S.
418, 444.  AND THIS FACT IN ITSELF ILLUSTRATES THE COMPLETE JEOPARDY IN
WHICH RIGHTS ARE PLACED WHEN THE NATURE OF THE PROCEEDING REMAINS
UNKNOWN AND UNASCERTAINABLE UNTIL THE FINAL ACTION ON REVIEW. 

NOT ONLY IS ONE THUS PLACED IN CONTINUING DILEMMA THROUGHOUT THE
PROCEEDINGS IN THE TRIAL COURT CONCERNING WHICH SET OF PROCEDURAL
RIGHTS HE IS ENTITLED TO STAND UPON, WHETHER UPON THE CRIMINAL
SAFEGUARDS OR ONLY ON THE CIVIL.  HE ALSO DOES NOT AND CANNOT KNOW
UNTIL IT IS TOO LATE, THAT IS, UNTIL THE APPELLATE PHASE IS ENDED,
WHETHER ONE GROUP OR THE OTHER OF APPELLATE JURISDICTIONAL AND
PROCEDURAL RULES APPLIES.  INDEED HE MAY FIND THAT HIS RIGHT OF REVIEW
HAS BEEN TAKEN EITHER PREMATURELY OR TOO LATE DEPENDING ENTIRELY ON
WHETHER THE APPELLATE COURT FINALLY CONCLUDES THAT THE PROCEEDING HAS
BEEN CIVIL OR CRIMINAL IN CHARACTER.  FN35  SEE SWAYZEE, CONTEMPT OF
COURT IN LABOR INJUNCTION CASES (1935) 21-22. 

PRECISELY FOR THESE REASONS THIS COURT, WHEN CONFRONTED IN THE
GOMPERS CASE, SUPRA, WITH A PROCEEDING COMMINGLING CIVIL AND CRIMINAL
FEATURES, SUCH AS WE HAVE HERE, REFUSED TO COUNTENANCE SUCH A MIXTURE
AND, FINDING THAT THE PROCEEDINGS HAD BEEN CIVIL, HELD THE CRIMINAL
PENALTY OF FIXED TERMS OF IMPRISONMENT TO BE INVALID.  FN36  THE COURT
SAID: 

"THERE WAS THEREFORE A DEPARTURE - A VARIANCE BETWEEN THE PROCEDURE
ADOPTED AND THE PUNISHMENT IMPOSED, WHEN, IN ANSWER TO A PRAYER FOR
REMEDIAL RELIEF, IN THE EQUITY CAUSE, THE COURT IMPOSED A PUNITIVE
SENTENCE APPROPRIATE ONLY TO A PROCEEDING AT LAW FOR CRIMINAL
CONTEMPT.  THE RESULT WAS AS FUNDAMENTALLY ERRONEOUS AS IF IN AN ACTION
OF 'A. VS. B. FOR ASSAULT AND BATTERY,' THE JUDGMENT ENTERED HAD BEEN
THAT THE DEFENDANT BE CONFINED IN PRISON FOR TWELVE MONTHS."  221 U.S.
AT 449. 

NOT ONLY MUST THE PUNISHMENTS BE KEPT SEPARATE AND DISTINCT.  FN37
THIS MUST BE DONE WITH THE ENTIRE PROCEEDINGS N38.  PUNISHMENT AND
CIVIL RELIEF MUST BE CORRELATED WITH THE CHARACTER OF THE PROCEEDING. 
PROCEDURAL RIGHTS NOT ONLY IN MATTERS OF PRACTICE,  FN39  BUT IN OTHERS
"WHICH INVOLVE SUBSTANTIAL RIGHTS AND CONSTITUTIONAL PRIVILEGES,"  FN40
ARE SO DISTINCT AND IN SOME INSTANCES CONTRADICTORY THAT "MANIFESTLY"
THEY CANNOT BE INTERMINGLED.  NOR CAN THOSE APPLICABLE IN CRIMINAL
PROCEEDINGS BE DISREGARDED WHEN CRIMINAL PENALTY IS SOUGHT.  NOT ONLY
SUCH MATTERS AS THE PRIVILEGE AGAINST SELF-INCRIMINATION, THE
PRESUMPTION OF INNOCENCE, THE NECESSITY FOR PROOF BEYOND A REASONABLE
DOUBT,  FN41  THE ALLOWANCE OF COSTS, THE APPROPRIATE MODE OF REVIEW
FN42 WITH ATTENDANT LIMITATIONS OF TIME AND OTHER DIFFERENCES, REQUIRE
THIS.  WHAT IS MOST IMPORTANT, BECAUSE THE APPLICATION AND OBSERVANCE
OF ALL THESE RIGHTS AND OTHERS DEPEND UPON IT, IS THAT THE PERSON
CHARGED IS ENTITLED TO KNOW FROM THE BEGINNING, NOT MERELY AT THE END
OR SOME INTERMEDIATE STAGE,  FN43  IN WHICH SORT OF PROCEEDING HE IS
INVOLVED. 

THIS, THE COURT SAID, "IS NOT A MERE MATTER OF FORM, FOR MANIFESTLY
EVERY CITIZEN, HOWEVER UNLEARNED IN THE LAW, BY A MERE INSPECTION OF
THE PAPERS IN CONTEMPT PROCEEDINGS OUGHT TO BE ABLE TO SEE WHETHER IT
WAS INSTITUTED FOR PRIVATE LITIGATION OR FOR PUBLIC PROSECUTION  ...
HE SHOULD NOT BE LEFT IN DOUBT AS TO WHETHER RELIEF OR PUNISHMENT WAS
THE OBJECT IN VIEW.  HE IS NOT ONLY ENTITLED TO BE INFORMED OF THE
NATURE OF THE CHARGE AGAINST HIM, BUT TO KNOW THAT IT IS A CHARGE AND
NOT A SUIT.  UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 559."  221 U.S.
AT 446. 

THIS RULE HAS NOW BEEN INCORPORATED ALSO IN RULE 42(B) OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE,  FN44  AND WAS APPLICABLE IN THIS CASE. 
BY THE TERMS OF THAT RULE THE CHARGE OF CRIMINAL CONTEMPT WAS REQUIRED
TO BE "PROSECUTED ON NOTICE" AND IT WAS FURTHER COMMANDED THAT THE
NOTICE STATE "THE ESSENTIAL FACTS CONSTITUTING THE CRIMINAL CONTEMPT
CHARGED AND DESCRIBE IT AS SUCH," WHICH WAS NOT DONE HERE.  THE RULE
WAS ADOPTED TO OUTLAW "THE FREQUENT CONFUSION BETWEEN CIVIL AND
CRIMINAL CONTEMPT PROCEEDINGS," FOLLOWING IMMEDIATELY A SUGGESTION MADE
IN MCCANN V. NEW YORK STOCK EXCHANGE, 80 F.2D 211.  FN45  SEE ALSO NYE
V. UNITED STATES, 313 U.S. 33, 42-43.  BUT IT FLATLY INCORPORATES THE
EFFECT OF THE DECISION IN THE GOMPERS CASE, SUPRA. 

THE LANGUAGE USED BY THE COURT WAS LANGUAGE OF THE CONSTITUTION,
REINFORCED BY CITATION OF THE CRUIKSHANK CASE.  CAREFUL AS IT WAS ABOUT
EXPRESSLY OVERRULING PRIOR DECISIONS  FN46  WHERE THE SIXTH AMENDMENT'S
REQUIREMENT  FN47  HAD NOT BEEN OBSERVED, THERE CAN BE NO DOUBT THAT
THE COURT WAS ANNOUNCING FOR THE FUTURE THAT THE CONSTITUTIONAL
REQUIREMENT MUST BE COMPLIED WITH.  AND THE RESULT IN THE CASE ITSELF
ACCORDED WITH WHAT THIS VIEW REQUIRED.  FN48 

ONE WHO DOES NOT KNOW UNTIL THE END OF LITIGATION WHAT HIS PROCEDURAL
RIGHTS IN TRIAL ARE, OR MAY HAVE BEEN, HAS NO SUCH RIGHTS.  HE IS
DENIED ALL BY A HIDE-AND-SEEK GAME BETWEEN THOSE THAT ARE CRIMINAL AND
THOSE THAT ARE CIVIL.  THE VIEW WHICH WOULD SEEM TO BE THE ONLY ONE
CONSISTENT WITH THE WHOLE SPIRIT OF THE CONSTITUTION, AND WITH THE
NATURE OF OUR FREE INSTITUTIONS, IS THAT ALL OF THE CONSTITUTIONAL
GUARANTIES APPLICABLE TO TRIALS FOR CRIME SHOULD APPLY TO SUCH TRIALS
FOR CONTEMPT, EXCEPTING ONLY THOSE WHICH MAY BE WHOLLY INCONSISTENT
WITH THE NATURE AND EXECUTION OF THE FUNCTION THE COURT MUST PERFORM. 
FN49  AS HAS BEEN SAID, COURTS IN PERFORMING THIS FUNCTION ARE NOT
ABOVE THE CONSTITUTION; RATHER THEY ARE EMPOWERED TO PERFORM IT IN
ORDER TO MAKE THE CONSTITUTION ITSELF OPERATIVE N50.  ACCORDINGLY, NOT
THE LEAST BUT THE GREATEST POSSIBLE APPLICATION OF IT TO THIS PHASE OF
THEIR WORK IS THE ONLY RULE CONSISTENT WITH THEIR PLACE IN THE
CONSTITUTIONAL SCHEME.  IN RE MICHAEL, 326 U.S. 224, 227. 

HENCE, WHATEVER MAY BE TRUE OF INDICTMENT AND JURY TRIALS, I SEE NO
COMPELLING REASON WHATEVER FOR NOT APPLYING THE OTHER LIMITATIONS OF
THE SIXTH AMENDMENT.  NONE OF THEM IS INCONSISTENT WITH THE DUE AND
PROPER PERFORMANCE OF THE COURT'S FUNCTION IN CRIMINAL CONTEMPT.  SOME
AT THE LEAST ARE APPLICABLE BY VIRTUE OF THE DUE PROCESS GUARANTY OF
THE FIFTH AMENDMENT.  "DUE PROCESS OF LAW, THEREFORE, IN THE
PROSECUTION OF CONTEMPT, EXCEPT OF THAT COMMITTED IN OPEN COURT,
REQUIRES THAT THE ACCUSED SHOULD BE ADVISED OF THE CHARGES AND HAVE A
REASONABLE OPPORTUNITY TO MEET THEM BY WAY OF DEFENSE OR EXPLANATION. 
WE THINK THIS INCLUDES THE ASSISTANCE OF COUNSEL, IF REQUESTED, AND THE
RIGHT TO CALL WITNESSES TO GIVE TESTIMONY, RELEVANT EITHER TO THE ISSUE
OF COMPLETE EXCULPATION OR IN EXTENUATION OF THE OFFENSE AND IN
MITIGATION OF THE PENALTY TO BE IMPOSED."  COOKE V. UNITED STATES, 267
U.S. 517, 537.  ONLY ONE CASE, APART FROM THOSE INVOLVING INDICTMENT OR
JURY TRIAL, HAS HELD THE SIXTH AMENDMENT INAPPLICABLE IN SUCH
PROCEEDINGS.  FN51  WHETHER OR NOT THAT CASE WAS A DEPARTURE FROM OUR
LONG ESTABLISHED TRADITION THAT IN CRIMINAL PROCEEDINGS THE DEFENDANT
IS ENTITLED TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM, OTHER
DEPARTURES SHOULD NOT BE MADE. 

SURELY THE RIGHTS TO A SPEEDY AND PUBLIC TRIAL, TO HAVE COMPULSORY
PROCESS FOR OBTAINING WITNESS IN HIS FAVOR, TO HAVE THE ASSISTANCE OF
COUNSEL FOR HIS DEFENSE, AND, AS THE GOMPERS CASE HELD, TO BE INFORMED
OF THE NATURE AS WELL AS THE CAUSE OF THE ACCUSATION, CANNOT BE DENIED
IN OUR SYSTEM TO ANY PERSON CHARGED WITH CRIME, WITH THE SINGLE
EXCEPTION OF CONTEMPTS COMMITTED IN THE IMMEDIATE PRESENCE OF THE COURT
BY WAY OF INTERFERENCE WITH THE PROCEEDINGS.  THOSE GUARANTIES ARE IN
NO WAY INCONSISTENT WITH THE COURT'S PROPER AND COMPLETE DISCHARGE OF
ITS FUNCTION IN CONTEMPT.  AND THEY WOULD SEEM TO BE ESSENTIAL TO ANY
CONCEPTION OF A FAIR TRIAL AS THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE
COMPREHENDS THIS. 

WHEN THE ASSERTION AND SECURING OF ALL OTHER RIGHTS DEPENDS UPON ONE,
THAT ONE IS THE CORE OF ALL.  HERE THE RIGHT "TO KNOW THAT IT WAS A
CHARGE, AND NOT A SUIT" COMPREHENDED ALL OTHER PROCEDURAL RIGHTS IN THE
TRIAL AND APPELLATE COURTS.  WITHOUT THIS, NONE COULD BE ASSERTED OR
MAINTAINED.  THE DENIAL OF THAT RIGHT, DEFERRING IT UNTIL THE DECISION
HERE IS HANDED DOWN, IS IN MY OPINION NOT ONLY A DENIAL OF ALL.  IT IS
A VIOLATION BOTH OF THE CONSTITUTION AND OF RULE 42(B). 

BUT WE ARE TOLD THAT THIS, AND ALL THAT FOLLOWED OR MAY HAVE FOLLOWED
FROM IT, MAKE NO DIFFERENCE BECAUSE THERE WAS NO PREJUDICE.  THERE ARE
AT LEAST TWO ANSWERS.  THIS COURT HAS HELD THAT THE DENIAL OF
CONSTITUTIONAL GUARANTIES IN TRIALS FOR CRIME IS IN ITSELF PREJUDICE. 
KOTTEAKOS V. UNITED STATES, 328 U.S. 750, 765, AND CASES CITED IN N.
19.  THE OTHER, THERE WAS PREJUDICE AND IN THE MOST IMPORTANT THING
BEYOND KNOWING THE NATURE OF THE PROCEEDING IN ADVANCE OF TRIAL,
NAMELY, IN THE PENALTY ITSELF. 

                                 IV. 

NOT ONLY WAS THE PENALTY AGAINST THE UNION EXCESSIVE, AS THE COURT
HOLDS.  VICE INFECTED BOTH "FINES" MORE DEEPLY.  AS THE PROCEEDING
ITSELF IS SAID TO HAVE BEEN BOTH CIVIL AND CRIMINAL, SO ARE THE TWO
"FINES."  EACH WAS IMPOSED IN A SINGLE LUMP SUM, WITH NO ALLOCATION OF
SPECIFIC PORTIONS AS AMONG CIVIL DAMAGES, CIVIL COERCION AND CRIMINAL
PUNISHMENT.  THE GOVERNMENT CONCEDES THAT SOME PART OF EACH "FINE" WAS
LAID FOR EACH PURPOSE.  BUT THE TRIAL COURT DID NOT STATE, AND THE
GOVERNMENT HAS REFUSED TO SPECULATE, HOW MUCH WAS IMPOSED IN EITHER
INSTANCE FOR EACH OF THOSE DISTINCT REMEDIAL FUNCTIONS. 

THIS WAS IN THE TEETH OF THE GOMPERS AND OTHER PREVIOUS DECISIONS
HERE.  THE LAW HAS FIXED STANDARDS FOR EACH REMEDY, AND THEY ARE
NEITHER IDENTICAL NOR CONGEALABLE.  THEY ARE, FOR DAMAGES IN CIVIL
CONTEMPT, THE AMOUNT OF INJURY PROVEN AND NO MORE, GOMPERS V. BUCKS
STOVE & R. CO., SUPRA, AT 444; FOR COERCION, WHAT MAY BE REQUIRED TO
BRING OBEDIENCE AND NOT MORE, WHETHER BY WAY OF IMPRISONMENT OR FINE;
FN52  FOR PUNISHMENT, WHAT IS NOT CRUEL AND UNUSUAL OR, IN THE CASE OF
A FINE, EXCESSIVE WITHIN THE EIGHTH AMENDMENT'S PROHIBITION.  AND FOR
DETERMINING EXCESSIVENESS OF CRIMINAL FINES THERE ARE ANALOGIES FROM
LEGISLATIVE ACTION WHICH IN MY OPINION ARE CONTROLLING.  FN53 

THE GOVERNMENT CONCEDES THAT THE EIGHTH AMENDMENT'S LIMITATION
APPLIES TO PENALTIES IN CRIMINAL CONTEMPT; AND THAT IN CIVIL CONTEMPT
THE DAMAGES AWARDED CANNOT EXCEED THE PROVEN AMOUNT OF INJURY.  IT ALSO
CONCEDES, AS I UNDERSTAND, THAT PURELY COERCIVE RELIEF CAN BE NO
GREATER THAN IS NECESSARY TO SECURE OBEDIENCE.  BUT IN ITS VIEW THERE
WAS NO NECESSITY HERE FOR ALLOCATION OF SPECIFIC AMOUNTS IN ORDER TO
COMPLY WITH THESE DISTINCT STANDARDS.  RATHER PUNISHMENT AND DAMAGES
MAY BE LUMPED WITH A THIRD UNDEFINED AMOUNT FOR CIVIL COERCION; AND THE
WHOLE MASS SUSTAINED, WITHOUT REFERENCE TO THE CONSTITUENT ELEMENTS OR
ANY OF THE ESTABLISHED STANDARDS FOR MEASURING THEM, OTHER THAN BY OVER
ALL APPLICATION OF THE EIGHTH AMENDMENT'S LIMITATION TO THE MASS.  AND
IN THIS VIEW IT MAINTAINS NEITHER "FINE" IS EXCESSIVE.    OBVIOUSLY,
HOWEVER, WHEN ALL THESE DISTINCT TYPES AND FUNCTIONS OF RELIEF ARE
LUMPED TOGETHER, IN A SINGLE SO-CALLED "FINE," NONE OF THE LONG
ESTABLISHED BASES FOR MEASUREMENT CAN BE APPLIED, FOR THERE IS NOTHING
TO WHICH THEY CAN APPLY.  WE CAN ONLY SPECULATE UPON WHAT PORTION OF
EACH "FINE" MAY HAVE BEEN LAID TO COMPENSATE FOR DAMAGES, WHAT FOR
PUNISHMENT, AND WHAT, IF ANY,  FN54 FOR CIVIL COERCION.  MOREOVER, THE
DISTRICT COURT MADE NO FINDINGS WHATEVER CONCERNING THE AMOUNT OF CIVIL
DAMAGES SUSTAINED, EVEN IF IT COULD BE ASSUMED THAT THERE WAS EVIDENCE
TO SUSTAIN SUCH FINDINGS.  FN55  AND ON THE RECORD NONE OF THE "FINE"
WAS MADE CONTINGENT, AFFORDING AN OPPORTUNITY FOR COMPURGATION, AS IS
REQUIRED FOR COERCIVE PENALTIES.  FN56 

IT FOLLOWS THAT WE HAVE NO BASIS EXCEPT OUR OWN SPECULATIVE
IMAGINATION BY WHICH TO DETERMINE WHETHER THE SO-CALLED "FINES," OR
EITHER OF THEM, ARE EXCESSIVE AS DAMAGES, OR INDEED AS COERCIVE RELIEF
LOOKING TO THE FUTURE, OR AS PENALTY FOR PAST CRIME. 

IN THIS STATE OF THINGS, IT IS UTTERLY IMPOSSIBLE TO PERFORM OUR
FUNCTION OF REVIEW IN THE MANNER HERETOFORE REQUIRED, EVEN WITHIN THE
BROAD LIMITS PRESCRIBED FOR CASES OF CIVIL AND CRIMINAL CONTEMPT.  THIS
COMMINGLING OF THE VARIOUS FORMS OF RELIEF, LIKE THAT OF THE
PROCEEDINGS THEMSELVES, DEPRIVES THESE CONTEMNORS OF ANY POSSIBILITY
FOR HAVING THE SCOPE OF THE RELIEF GIVEN AGAINST THEM MEASURED
ACCORDING TO LAW. 

THAT IS NO INSUBSTANTIAL DEPRIVATION.  WHEN HYBRID PROCEEDINGS CAN
PRODUCE HYBRID PENALTIES, CONCEALING WHAT IS FOR PUNISHMENT AND WHAT
REMEDIAL, WHAT CRIMINAL AND WHAT CIVIL, AND IN THE PROCESS CAN DISCARD
CONSTITUTIONAL PROCEDURAL PROTECTIONS AGAINST JUST SUCH CONSEQUENCES,
AS CONVENIENCE OR OTHER WHOLLY DISCRETIONARY IMPULSE MAY COMMAND, THEN
INDEED TO THE EXTENT WE ALLOW THIS WILL WE HAVE ADOPTED THE CONTINENTAL
TRADITION OF THE CIVILIANS AND REJECTED OUR OWN.  NO CASE IN THIS COURT
HERETOFORE HAS EVER SUSTAINED SUCH CONGLOMERATE PROCEEDINGS AND
PENALTIES.  FN57 

THAT THE GOVERNMENT IS COMPLAINANT HERE, BOTH AS "EMPLOYER" SEEKING
REMEDIAL RELIEF AND IN SOVEREIGN CAPACITY N58 SEEKING TO VINDICATE THE
COURT'S AUTHORITY BY CRIMINAL PENALTY, DOES NOT NULLIFY ALL THESE LONG
ESTABLISHED LIMITATIONS OR PUT THE COURTS WHOLLY AT LARGE, LIMITED BY
NOTHING EXCEPT THEIR UNCONFINED DISCRETION AS TO THE SCOPE AND
CHARACTER OF THE RELIEF ALLOWABLE.  POWER THERE IS TO TAKE ADEQUATE
MEASURES WHEN VIOLATION IS CLEARLY SHOWN AND ADEQUATE PROOF IS MADE TO
SUSTAIN THEM.  FOR PROVEN VIOLATION, CRIMINAL PENALTY WITHIN THE EIGHTH
AMENDMENT'S LIMITS AS WE WOULD MEASURE SIMILAR IMPOSITIONS PLACED BY
CONGRESS, AT THE MOST; FOR DAMAGES PROVEN AND FOUND, CIVIL AWARD
COMMENSURATE WITH THE FINDING; AND FOR COERCION, CIVIL RELIEF BY WAY OF
IMPRISONMENT OR "FINE," BUT IN EITHER CASE CONTINGENT ONLY, NOT FINAL,
GIVING OPPORTUNITY FOR COMPURGATION AND FOR TERMINATION, ON ITS BEING
MADE, OF FURTHER PENALTY FOR THE FUTURE. 

THESE ARE THE LIMITATIONS THE LAW HAS PRESCRIBED.  THEY APPLY EQUALLY
WHEN THE GOVERNMENT IS COMPLAINANT, AND WHETHER IN ONE CAPACITY OR THE
OTHER, OR BOTH, AS WHEN OTHERS ARE.  FN59  THEY CANNOT BE DISPENSED
WITH, SEPARATELY OR BY CONGLOMERATING ALL INTO A SINGLE INDISCRIMINATE
LUMP, AT THE SUIT OF THE GOVERNMENT OR ANOTHER, IN THIS CASE OR FOR
OTHERS.  TO PERMIT THIS WOULD BE TO THROW OVERBOARD THE LIMITATIONS
PRESCRIBED BY LAW AND MAKE THE COURTS PURELY DISCRETIONARY ARBITRATORS
OF CONTROVERSIES.  THAT CANNOT BE DONE IN OUR SYSTEM. 

THE COURT SEEMINGLY RECOGNIZES THIS, IN PART, IN THE REVISION IT
MAKES OF THE DISTRICT COURT'S PENALTIES.  LEWIS' FINE IS AFFIRMED IN
AMOUNT BUT WHOLLY CHANGED IN CHARACTER.  INSTEAD OF COMPOSITE RELIEF AS
THE DISTRICT COURT MADE IT, THE COURT MAKES THAT FINE WHOLLY A CRIMINAL
PENALTY, THUS IN EFFECT INCREASING THE AMOUNT OF HIS CRIMINAL
IMPOSITION.  THE UNION'S FINE, THOUGH HELD EXCESSIVE AND "REDUCED," BY
WHAT STANDARD IS NOT APPARENT, IS REPLACED BY A FLAT CRIMINAL FINE OF
$700,000 PLUS A CONTINGENT PENALTY OF $2,800,000 SAID TO BE ENTIRELY
FOR CIVIL COERCION, ALTHOUGH THE STRIKE WAS ENDED IN DECEMBER.  ANY
AWARD FOR CIVIL DAMAGES ALLEGEDLY SUSTAINED APPARENTLY IS ELIMINATED. 

THE COURT THUS PURPORTS TO MAKE SEPARATE THE DISTINCT ITEMS OF RELIEF
COMMINGLED IN THE DISTRICT COURT'S ACTION.  BUT IN DOING SO, IN MY
OPINION, IT WHOLLY DISREGARDS THE ESTABLISHED STANDARD FOR MEASURING
CRIMINAL FINES AND ITS OWN AS WELL AS THE DISTRICT COURT'S FUNCTION
RELATING TO THEM.  IF LEWIS AND THE UNION HAD BEEN CONVICTED ON
INDICTMENT AND JURY TRIAL IN A PROCEEDING SURROUNDED BY ALL THE
CONSTITUTIONAL AND OTHER SAFEGUARDS OF CRIMINAL PROSECUTION FOR
VIOLATING THE WAR LABOR DISPUTES ACT, THE MAXIMUM FINES WHICH COULD BE
APPLIED BY THAT ACT'S TERMS WOULD BE $5,000 FOR EACH.  IN ADDITION,
LEWIS COULD HAVE BEEN IMPRISONED FOR A YEAR.  FN60 

IN MY OPINION, WHEN CONGRESS PRESCRIBES A MAXIMUM PENALTY FOR
CRIMINAL VIOLATION OF A STATUTE, THAT PENALTY FIXES THE MAXIMUM WHICH
CAN BE IMPOSED WHETHER THE CONVICTION IS IN A CRIMINAL PROCEEDING AS
SUCH FOR ITS VIOLATION OR IS FOR CONTEMPT FOR VIOLATING AN ORDER OF
COURT TO OBSERVE IT TEMPORARILY.  GOMPERS V. UNITED STATES, 233 U.S.
604, 612.  IF THE FINE OR OTHER PENALTY IN SUCH A CASE CAN BE
MULTIPLIED TWICE OR ANY OTHER NUMBER OF TIMES, MERELY BY BRINGING A
CIVIL SUIT, SECURING A TEMPORARY RESTRAINING ORDER AND THEN CONVICTING
THE PERSON WHO VIOLATES IT OF CRIMINAL CONTEMPT, REGARDLESS OF THE
ORDER'S VALIDITY AND OF ANY OF THE USUAL RESTRAINTS OF CRIMINAL
PROCEDURE, THE WAY WILL HAVE BEEN FOUND TO DISPENSE WITH SUBSTANTIALLY
ALL OF THOSE PROTECTIONS RELATING NOT ONLY TO THE COURSE OF THE
PROCEEDINGS BUT TO THE PENALTY ITSELF. 

BUT IT IS IN RELATION TO THE FLAT CRIMINAL FINE OF $700,000 AGAINST
THE UNION THAT THE COURT'S DISREGARD OF THE CONSTITUTIONAL AND OTHER
STANDARDS IS MOST APPARENT.  BY WHAT MEASURING ROD THIS SUM HAS BEEN
ARRIVED AT AS THE APPROPRIATE AND LAWFUL AMOUNT, I AM UNABLE TO SAY,
UNLESS INDEED IT IS SIMPLY BY A ROUGH ESTIMATE OF WHAT THE UNION SHOULD
BE FORCED TO PAY ON ALL COUNTS.  NEVER HAS A CRIMINAL FINE OF SUCH
MAGNITUDE BEEN HERETOFORE LAID AND SUSTAINED, SO FAR AS I AM ABLE TO
DISCOVER.  AND ONLY FOR TREASON, WITH ONE OTHER POSSIBLE EXCEPTION,
FN61  HAS CONGRESS AUTHORIZED ONE SO LARGE.  MOREOVER, THE COURT'S
ENUMERATION OF FACTORS TO BE TAKEN INTO ACCOUNT INDICATES EXPRESSLY, AS
I READ THE OPINION, THAT ONE IS THE COERCIVE EFFECT OF THE IMPOSITION
FOR THE FUTURE, THOUGH IT IS THOROUGHLY SETTLED THAT IN CONTEMPT
CRIMINAL PUNISHMENT IS TO BE LAID ONLY FOR PAST CONDUCT.  FN62  GOMPERS
V. BUCKS STOVE & R. CO., SUPRA, AND AUTHORITIES CITED. 

THUS, THE COURT IN EFFECT IMPOSES DOUBLE COERCIVE PENALTIES, IN VIEW
OF THE ADDITIONAL CONTINGENT AWARD OF $2,800,000 FOR THAT SPECIFIC AND
SOLE PURPOSE.  I THINK THE CRIMINAL FINE OF $700,000 NOT ONLY
CONSTITUTIONALLY EXCESSIVE, FAR BEYOND ANY HERETOFORE SUSTAINED FOR
VIOLATION OF ANY STATUTE OR ORDER OF COURT.  IT IS ALSO AN UNLAWFUL
COMMINGLING OF CIVIL COERCIVE AND CRIMINAL PENALTIES, WITHOUT THE
ESSENTIAL CONTINGENT FEATURE IN THE COERCIVE PHASE, UNDER OUR PRIOR
DECISIONS. 

MOREOVER, IT IS THE DISTRICT COURT'S FUNCTION, NOT OURS, IN THE FIRST
INSTANCE TO FIX THE AMOUNTS OF CRIMINAL FINES.  IN EQUITY PROCEEDINGS
FOR COERCIVE RELIEF, APPELLATE COURTS INCLUDING THIS ONE HAVE POWER TO
REVISE AND FIX AWARDS FOR SUCH PURPOSES, AND IF DAMAGES ALSO ARE SOUGHT
TO REVIEW AMOUNTS AWARDED FOR THIS PURPOSE FOR CONSISTENCY WITH THE
PROOF.  GOMPERS V. BUCKS STOVE & R. CO., SUPRA.  BUT IN A CRIMINAL
PROCEEDING WHICH IS AT LAW EVEN IN CONTEMPT, IBID., OUR FUNCTION IS NOT
IN THE FIRST INSTANCE TO FIX THE FINES OURSELVES.  THAT FUNCTION IS THE
DISTRICT COURT'S. IBID.  WE CAN ONLY DETERMINE WHETHER THOSE IMPOSED BY
IT ARE EXCESSIVE UNDER THE EIGHTH AMENDMENT. 

IN ITS REVISION OF THE PENALTIES THEREFORE THE COURT IN MY OPINION
NOT ONLY FAILS TO UNSCRAMBLE THE COERCIVE AND CRIMINAL ELEMENTS, AS THE
PRIOR DECISIONS HERE REQUIRE TO BE DONE.  FN63  IT IMPOSES GROSSLY
EXCESSIVE CRIMINAL PENALTIES, DETERMINED IN AMOUNT BY WHOLLY ARBITRARY
ESTIMATE RELATED TO NO PREVIOUSLY ESTABLISHED STANDARD LEGISLATIVELY OR
JUDICIALLY FIXED.  AND IN DOING SO, IT USURPS THE DISTRICT COURT'S
FUNCTION.  ALL THIS FLOWS IN PART AT LEAST FROM ITS BASIC ERROR, WHICH
IS ITS FAILURE TO FOLLOW THE RULE OF THE GOMPERS AND OTHER CASES THAT
NOT ONLY CIVIL AND CRIMINAL PENALTIES, BUT ALSO CIVIL AND CRIMINAL
PROCEEDINGS ARE ALTOGETHER DIFFERENT AND SEPARATE THINGS, AND UNDER THE
CONSTITUTION MUST BE KEPT SO. 

MUCH MORE IS INVOLVED IN THIS CONTROVERSY THAN THE ISSUES WHICH HAVE
BEEN DISCUSSED.  THE ISSUES IN THE MAIN SUIT HAVE NOT BEEN DETERMINED
AND IT WOULD BE BEYOND OUR FUNCTION TO INTIMATE OPINION CONCERNING THEM
NOW.  BUT BEYOND THIS CONTROVERSY AS A WHOLE LIE STILL GRAVER
QUESTIONS.  THEY INVOLVE OPPOSING CLAIMS CONCERNING THE RIGHT TO STRIKE
AND THE POWER OF THE GOVERNMENT, AS AGAINST THIS, TO KEEP THE NATION'S
ECONOMY GOING.  THOSE ARE INDEED GRAVE MATTERS. 

NO RIGHT IS ABSOLUTE.  NOR IS ANY POWER, GOVERNMENTAL OR OTHER, IN
OUR SYSTEM.  THERE CAN BE NO QUESTION THAT IT PROVIDES POWER TO MEET
THE GREATEST CRISES.  EQUALLY CERTAIN IS IT THAT UNDER "A GOVERNMENT OF
LAWS AND NOT OF MEN" SUCH AS WE POSSESS, POWER MUST BE EXERCISED
ACCORDING TO LAW; AND GOVERNMENT, INCLUDING THE COURTS, AS WELL AS THE
GOVERNED, MUST MOVE WITHIN ITS LIMITATIONS. 

THIS MEANS THAT THE COURTS AND ALL OTHER DIVISIONS OR AGENCIES OF
AUTHORITY MUST ACT WITHIN THE LIMITS OF THEIR RESPECTIVE FUNCTIONS. 
SPECIFICALLY IT MEANS IN THIS CASE THAT WE ARE BOUND TO ACT IN
DEFERENCE TO THE MANDATE OF CONGRESS CONCERNING LABOR INJUNCTIONS, AS
IN JUDGMENT AND CONSCIENCE WE CONCEIVE IT TO HAVE BEEN MADE.  THE
CRISIS HERE WAS GRAVE.  NEVERTHELESS, AS I VIEW CONGRESS' ACTION, I AM
UNABLE TO BELIEVE THAT IT HAS ACTED TO MEET, OR AUTHORIZED THE COURTS
TO MEET, THE SITUATION WHICH AROSE IN THE MANNER WHICH HAS BEEN
EMPLOYED. 

NO MAN OR GROUP IS ABOVE THE LAW.  ALL ARE SUBJECT TO ITS VALID
COMMANDS.  SO ARE THE GOVERNMENT AND THE COURTS.  IF, AS I THINK,
CONGRESS HAS FORBIDDEN THE USE OF LABOR INJUNCTIONS IN THIS AND LIKE
CASES, THAT CONCLUSION IS THE END OF OUR FUNCTION.  AND IF MODIFICATION
OF THAT POLICY IS TO BE MADE FOR SUCH CASES, THAT PROBLEM IS FOR
CONGRESS IN THE FIRST INSTANCE, NOT FOR THE COURTS. 

FN1  "GREAT CASES LIKE HARD CASES MAKE BAD LAW.  FOR GREAT CASES ARE
CALLED GREAT, NOT BY REASON OF THEIR REAL IMPORTANCE IN SHAPING THE LAW
OF THE FUTURE, BUT BECAUSE OF SOME ACCIDENT OF IMMEDIATE OVERWHELMING
INTEREST WHICH APPEALS TO THE FEELINGS AND DISTORTS THE JUDGMENT. 
THESE IMMEDIATE INTERESTS EXERCISE A KIND OF HYDRAULIC PRESSURE WHICH
MAKES WHAT PREVIOUSLY WAS CLEAR SEEM DOUBTFUL, AND BEFORE WHICH EVEN
WELL SETTLED PRINCIPLES OF LAW WILL BEND."  HOLMES, J., DISSENTING, IN
NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197, 400-401. 

FN2  "PROVIDED, THAT WHENEVER ANY SUCH PLANT, MINE, OR FACILITY HAS
BEEN OR IS HEREAFTER SO TAKEN BY REASON OF A STRIKE, LOCK-OUT,
THREATENED STRIKE, THREATENED LOCK-OUT, WORK STOPPAGE, OR OTHER CAUSE,
SUCH PLANT, MINE, OR FACILITY SHALL BE RETURNED TO THE OWNERS THEREOF
AS SOON AS PRACTICABLE, BUT IN NO EVENT MORE THAN SIXTY DAYS AFTER THE
RESTORATION OF THE PRODUCTIVE EFFICIENCY THEREOF PREVAILING PRIOR TO
THE TAKING OF POSSESSION THEREOF  ...."  WAR LABOR DISPUTES ACT SEC.
3(ACT OF JUNE 25, 1943, 57 STAT. 163, 50 U.S.C. APP. SECS. 1501,
1503). 

FN3  "SEC.  6.  (A)  WHENEVER ANY PLANT, MINE, OR FACILITY IS IN THE
POSSESSION OF THE UNITED STATES, IT SHALL BE UNLAWFUL FOR ANY PERSON
(1) TO COERCE, INSTIGATE, INDUCE, CONSPIRE WITH, OR ENCOURAGE ANY
PERSON, TO INTERFERE, BY LOCK-OUT, STRIKE, SLOW-DOWN, OR OTHER
INTERRUPTION, WITH THE OPERATION OF SUCH PLANT, MINE, OR FACILITY, OR
(2) TO AID ANY SUCH LOCK-OUT, STRIKE, SLOW-DOWN, OR OTHER INTERRUPTION
INTERFERING WITH THE OPERATION OF SUCH PLANT, MINE, OR FACILITY BY
GIVING DIRECTION OR GUIDANCE IN THE CONDUCT OF SUCH INTERRUPTION, OR BY
PROVIDING FUNDS FOR THE CONDUCT OR DIRECTION THEREOF OR FOR THE PAYMENT
OF STRIKE, UNEMPLOYMENT, OR OTHER BENEFITS TO THOSE PARTICIPATING
THEREIN.  NO INDIVIDUAL SHALL BE DEEMED TO HAVE VIOLATED THE PROVISIONS
OF THIS SECTION BY REASON ONLY OF HIS HAVING CEASED WORK OR HAVING
REFUSED TO CONTINUE TO WORK OR TO ACCEPT EMPLOYMENT. 

"(B)  ANY PERSON WHO WILLFULLY VIOLATES ANY PROVISION OF THIS SECTION
SHALL BE SUBJECT TO A FINE OF NOT MORE THAN $5,000, OR TO IMPRISONMENT
FOR NOT MORE THAN ONE YEAR, OR BOTH."  WAR LABOR DISPUTES ACT OF 1943,
SEC. 6. 

FN4  THE ISSUE IS NOT AVOIDED, NOR IS THE EFFECT OF FINAL LEGISLATIVE
REJECTION NULLIFIED, BY THE EASY DEVICE OF RESTING THE POWER SAID TO
EXIST UPON COMMON LAW RULES OF STATUTORY CONSTRUCTION WHICH, IF
OTHERWISE PERTINENT, WERE IN THE VERY TEETH OF CONGRESS' POSITIVE
REFUSAL TO CONFER THE POWER AFTER THE FULLEST AND MOST ATTENTIVE
CONSIDERATION.  THAT DEVICE ONLY CONCEALS THE TRUE ISSUE.  SEE ALSO
NOTE 11. 

FN5  SEIZURE WITHOUT SUCH ULTIMATE CONTROL, OF COURSE, WOULD HAVE
BEEN ONLY ONE-SIDED, HALFWAY SEIZURE, OPERATIVE ONLY AGAINST MANAGEMENT
AND OWNERS.  BUT SEIZURE WITH SUCH CONTROL DID NOT REQUIRE OR MEAN THAT
THE CONTROL WAS TO BE EXERCISED BY LABOR INJUNCTIONS.  THERE WAS, AND
IS, NO INCONSISTENCY WHATEVER BETWEEN CONFERRING THE ONE POWER AND
DENYING THE OTHER.  FOR THIS IS EXACTLY WHAT CONGRESS HAS DONE WITH
REFERENCE TO ALL PLANTS NOT SUBJECT TO THE SEIZURE POWER.  BESIDES
IMPUTING TO CONGRESS THE PURPOSE TO DO WITH ONE HAND WHAT THE OTHER
DENIED WAS BEING DONE, THE IDENTIFICATION OF THESE TWO VERY DISTINCT
THINGS SERVES ONLY TO CONFUSE AND MAKE OBSCURE THE REAL QUESTION.  THIS
IS SIMPLY WHETHER CONGRESS INTENDED TO ABROGATE FOR SEIZED PLANTS OR TO
CONTINUE IN FORCE THE ESTABLISHED POLICY AGAINST LABOR INJUNCTIONS AS A
METHOD OF EXERCISING THE POWERS OF ULTIMATE CONTROL CONFERRED UPON THE
GOVERNMENT.    FN6  SECTION 2(C) EXCLUDES CARRIERS AS DEFINED IN TITLE
I OF THE RAILWAY LABOR ACT, 45 U.S.C. SEC. 151, OR CARRIERS BY AIR AS
SUBJECT TO TITLE II OF THE RAILWAY LABOR ACT, 45 U.S.C. SEC. 181. 

FN7  THE AVAILABLE STATISTICS SPEAK IN TERMS OF "STRIKES" FOR 1943
AND "WORK STOPPAGES ARISING FROM LABOR-MANAGEMENT DISPUTES" FOR 1945
AND 1946.  FOR 1943, 13,500,529 MAN-DAYS WERE LOST THROUGH STRIKES. 
FOR 1945, 38,025,000 MAN-DAYS WERE LOST THROUGH WORK STOPPAGES, AND
113,000,000 MAN-DAYS WERE SO LOST IN 1946.  IN 1943 THERE WERE 3,752
STRIKES.  IN 1945 THERE WERE 4,750 WORK STOPPAGES AND IN 1946, 4,700. 
SEE STRIKES IN 1943, BULL.  NO. 782, U.S. BUREAU OF LABOR STATISTICS;
WORK STOPPAGES CAUSED BY LABOR-MANAGEMENT DISPUTES IN 1945, BULL.  NO.
878, U.S. BUREAU OF LABOR STATISTICS; REVIEW OF LABOR-MANAGEMENT
DISPUTES, 1946, U.S. BUREAU OF LABOR STATISTICS RELEASE, JANUARY 11,
1947. 

FN8  SEE NOTE 7. 

FN9  SEE HEARINGS BEFORE THE COMMITTEE ON MILITARY AFFAIRS OF THE
HOUSE OF REPRESENTATIVES ON S. 796, 78TH CONG., 1ST SESS., 25-26.  "THE
WAR LABOR BOARD WAS SET UP TO DEAL WITH INDUSTRIAL RELATIONS.  WHILE
THIS BOARD MAY NOT HAVE A PERFECT RECORD, IT HAS A VERY GOOD RECORD TO
ITS CREDIT, PARTICULARLY WHEN WE CONSIDER THE GREAT PROBLEMS IT MUST
DEAL WITH."  89 CONG. REC. 5339. 

THE NUMBER OF WAR LABOR BOARD CASES RESULTING IN PLANT SEIZURES BY
THE UNITED STATES, SO FAR AS STATISTICS ARE AVAILABLE, IS AS FOLLOWS:
FOUR CASES FROM JUNE 25, 1943, THE DATE OF THE PASSAGE OF THE WAR LABOR
DISPUTES ACT, TO DECEMBER 31, 1943; SEVENTEEN CASES FROM JANUARY 1,
1944, TO DECEMBER 31, 1944; FIFTEEN CASES FROM JANUARY 1, 1945, TO
AUGUST, 1945.  WE ARE INFORMED THAT IN NO INSTANCE OF SEIZURE, EXCEPT
THE ONE UNDER CONSIDERATION, WAS A LABOR INJUNCTION ISSUED AT THE
BEHEST OF THE GOVERNMENT. 

FN10  SECTION 3 PROVIDES:  "PROVIDED FURTHER, THAT POSSESSION OF ANY
PLANT, MINE, OR FACILITY SHALL NOT BE TAKEN UNDER AUTHORITY OF THIS
PROCLAIMED BY THE PRESIDENT, OR AFTER THE TERMINATION OF THE WAR LABOR
DISPUTES ACT; AND THE AUTHORITY TO OPERATE ANY SUCH PLANT, MINE, OR
FACILITY UNDER THE PROVISIONS OF THIS SECTION SHALL TERMINATE AT THE
END OF SIX MONTHS AFTER THE TERMINATION OF SUCH HOSTILITIES AS SO
PROCLAIMED." 

IT MAY BE NOTED THAT ON DECEMBER 31, 1946, THE PRESIDENT BY
PROCLAMATION ANNOUNCED THE END OF HOSTILITIES.  12 FED. REG. 1.  THE
EMERGENCY POWERS CONFERRED BY THE ACT TERMINATE SIX MONTHS THEREAFTER. 

FN11  IF GENERAL COMMON LAW RULES OF STATUTORY CONSTRUCTION WERE
APPROPRIATE FOR CRITERIA TO DETERMINE SUCH ISSUES AS THIS CASE PRESENTS
FOR THE MEANING OF THE ACT, CERTAINLY THAT RULE WOULD BE EQUALLY
APPLICABLE WITH ANY OTHER WHICH DICTATES THAT WHEN A STATUTE PROVIDES
SPECIFIC REMEDIES ADEQUATE FOR ENFORCING ITS PROVISIONS THOSE REMEDIES
ALONE ARE DEEMED TO BE MADE AVAILABLE.  BUT IN VIEW OF THE LEGISLATIVE
AND OTHER HISTORY, THIS CASE IS NOT ONE TO BE TURNED, IN MY OPINION, BY
SUCH VAGUE, CONVENIENTLY SELECTIVE AND OFTEN, AS HERE, CONTRADICTORY
CANONS OF CONSTRUCTION. 

FN12  IT IS THIS SANCTION UPON WHICH CONGRESS HAS CHOSEN TO RELY
ULTIMATELY, FOR INSTANCE, IN THE RAILWAY LABOR ACT, THOUGH PROVISION IS
MADE FOR PRELIMINARY RESORT TO PROCESSES OF CONCILIATION, MEDIATION AND
VOLUNTARY ARBITRATION BEFORE THE USE OF ULTIMATE ECONOMIC FORCE BY
STRIKE OR LOCKOUT, WHEN THE SANCTION OF PUBLIC OPINION COMES CHIEFLY
INTO PLAY.  SEE BROTHERHOOD OF RAILROAD TRAINMEN V. TOLEDO, PEORIA &
W.R.R., 321 U.S. 50; GENERAL COMMITTEE V. MISSOURI-KANSAS-TEXAS R.R.,
320 U.S. 323.  ON THE WHOLE, THAT POLICY AND THE SANCTIONS PROVIDED
HAVE WORKED SUCCESSFULLY TO ELIMINATE STOPPAGES IN RAILWAY
TRANSPORTATION.  AND AS OF JUNE, 1943, IT MAY BE FAIRLY ASSUMED THAT
CONGRESS, IN DECLINING TO AUTHORIZE THE ISSUANCE OF LABOR INJUNCTIONS,
WAS CONSCIOUS OF AND CHOSE TO RELY UPON THIS ACCEPTED SANCTION TOGETHER
WITH THE SPECIFIC ONES THEN CONFERRED BY THE WAR LABOR DISPUTES ACT. 

FN13  MORE ESPECIALLY WHEN ACCOUNT IS TAKEN OF THE VAST LIBERTY,
CALLED "DISCRETION," WHICH COURTS ARE SAID TO HAVE, AND IN THIS CASE
ARE HELD TO HAVE, IN FIXING PUNISHMENTS FOR CONTEMPTS.  BUT SEE PART
IV. 

FN14  "THE RESTRAINING ORDER AND THE PRELIMINARY INJUNCTION INVOKED
IN LABOR DISPUTES REVEAL THE MOST CRUCIAL POINTS OF LEGAL
MALADJUSTMENT.  TEMPORARY INJUNCTIVE RELIEF WITHOUT NOTICE, OR, IF UPON
NOTICE, RELYING UPON DUBIOUS AFFIDAVITS, SERVES THE IMPORTANT FUNCTION
OF STAYING DEFENDANT'S CONDUCT REGARDLESS OF THE ULTIMATE JUSTIFICATION
OF SUCH RESTRAINT.  THE PRELIMINARY PROCEEDINGS, IN OTHER WORDS, MAKE
THE ISSUE OF FINAL RELIEF A PRACTICAL NULLITY....  THE SUSPENSION OF
STRIKE ACTIVITIES, EVEN TEMPORARILY, MAY DEFEAT THE STRIKE FOR
PRACTICAL PURPOSES AND FOREDOOM ITS RESUMPTION, EVEN IF THE INJUNCTION
IS LATER LIFTED."  FRANKFURTER AND GREENE, THE LABOR INJUNCTION (1930)
200-201. 

"TIME IS THE ESSENCE OF THE STRIKE.  KEEPING THE INJUNCTION ALIVE BY
DILATORY TACTICS BLUNTS THE EDGE OF THE ONLY EFFECTIVE INSTRUMENT THAT
LABOR POSSESSES, NAMELY, THE STRIKE. 

"THE BILL NOW BEFORE US MAKES IT WELL-NIGH IMPOSSIBLE TO SECURE A
RESTRAINING ORDER EXCEPT UNDER THE WELL-DEFINED AND LIMITED CONDITIONS
SET OUT IN SECTIONS 7 AND 8."  75 CONG. REC. 5489.  SEE ALSO PEOPLE EX
REL. SANDNES V. SHERIFF OF KINGS COUNTY, 164 MISC. 355, 359. 

FN15  SEE NOTE 14.  EX PARTE FISK, 113 U.S. 713, PRESENTS ANOTHER
CLEAR ILLUSTRATION OF THE TYPE OF RIGHT WHICH WOULD BE WHOLLY NULLIFIED
BY GENERAL APPLICATION OF THE ALLEGED BROAD CONCEPTION OF THE SHIPP
DOCTRINE.  THERE THE CIRCUIT COURT, IN CONTRAVENTION OF EXPLICIT ACTS
OF CONGRESS AS THIS COURT FOUND, HAD ORDERED FISK TO SUBMIT TO ORAL
EXAMINATION BEFORE TRIAL IN A REMOVED CIVIL CAUSE, THE EXAMINATION TO
BE BEFORE A JUSTICE OF THE COURT AND ACCORDING TO PROCEDURE PRESCRIBED
BY STATE LAW FOR THE STATE COURT FROM WHICH THE CASE WAS REMOVED.  FISK
REFUSED TO OBEY THE ORDER, STANDING UPON THE CIRCUIT COURT'S LACK OF
JURISDICTION TO ENTER IT, WAS HELD IN CONTEMPT FOR THIS, AND FINED $500
AND ORDERED IMPRISONED UNTIL THE FINE WAS PAID.  HE BROUGHT HABEAS
CORPUS TO SECURE RELEASE FROM THE IMPRISONMENT THUS IMPOSED. 

THIS COURT HELD VOID BOTH THE ORDER FOR EXAMINATION AND THE ORDER OF
COMMITMENT, AS BEYOND THE CIRCUIT COURT'S JURISDICTION, AND GRANTED
PETITIONER'S RELEASE FROM CUSTODY.  THE COURT SAID: "NOT ONLY IS NO
SUCH POWER (OF EXAMINATION) CONFERRED, BUT IT IS PROHIBITED BY THE
PLAIN LANGUAGE AND THE EQUALLY PLAIN PURPOSE OF THE ACTS OF CONGRESS
...  THE CIRCUIT COURT WAS, THEREFORE, WITHOUT AUTHORITY TO MAKE THE
ORDERS FOR THE EXAMINATION OF PETITIONER IN THIS CASE, AND EQUALLY
WITHOUT AUTHORITY TO ENFORCE THESE ORDERS BY PROCESS FOR CONTEMPT." 
PP. 724, 726.  HAD FISK SUBMITTED, AS SHIPP IS NOW SAID TO REQUIRE
SHOULD BE DONE, NOT ONLY WOULD THE SPECIFIC COMMANDS OF CONGRESS HAVE
BEEN NULLIFIED.  HIS RIGHT, SECURED BY THOSE COMMANDS, COULD NEVER HAVE
BEEN VINDICATED.  THE STATUTES WOULD HAVE BEEN MADE DEAD LETTERS. 

FN16  INDEED AT LEAST ONE STATE COURT HAS HELD THIS RESULT TO FOLLOW
AND IN HIS DISSENTING OPINION IN IN RE SAWYER, 124 U.S. 200, 224,
HARLAN, J., STATED THIS TO BE HIS VIEW OF THE LAW (SEE HOWEVER NOTE
19), AS APPARENTLY ALSO IT WAS OF WAITE, C.J. P. 223.  SEE REID V.
INDEPENDENT UNION, 200 MINN. 599(CERTIORARI), BUT SEE THE DISSENTING
OPINION, 200 MINN. AT 612; COLLATERAL ATTACK UPON LABOR INJUNCTIONS
ISSUED IN DISREGARD OF ANTI-INJUNCTION STATUTES (1938) 47 YALE L.J.
1136; PEOPLE EX REL. SANDNES V. SHERIFF OF KINGS COUNTY, 164 MISC.
355. 

FN17  SEE PART IV. 

FN18  IBID. 

FN19  EX PARTE ROWLAND, 104 U.S. 604; EX PARTE FISK, 113 U.S. 713; IN
RE AYERS, 123 U.S. 443, 507; IN RE SAWYER, 124 U.S. 200; IN RE BURRUS,
136 U.S. 586; THOMAS V. COLLINS, 323 U.S. 516(ARISING UNDER STATE
LAW).  AND SEE EX PARTE YOUNG, 209 U.S. 123, 143; CF. PP. 135, 139,
COLLECTING THE AUTHORITIES. 

IN THE SAWYER CASE, SUPRA, THE COURT SAID:  "THE CASE CANNOT BE
DISTINGUISHED IN PRINCIPLE FROM THAT OF A JUDGMENT OF THE COMMON BENCH
IN ENGLAND IN A CRIMINAL PROSECUTION, WHICH WAS CORAM NON JUDICE; OR
THE CASE OF A SENTENCE PASSED BY THE CIRCUIT COURT OF THE UNITED STATES
UPON A CHARGE OF AN INFAMOUS CRIME, WITHOUT A PRESENTMENT OR INDICTMENT
BY A GRAND JURY.  CASE OF THE MARSHALSEA, 10 REP. 68, 76; EX PARTE
WILSON, 114 U.S. 417; EX PARTE BAIN, 121 U.S. 1."  124 U.S. AT 221. 
HARDLY CAN IT BE SAID THAT THE SAWYER DECISION WENT ON THE GROUND THAT
THE QUESTION OF JURISDICTION TO ENTER THE ORDER WAS NOT SUBSTANTIAL, IN
VIEW OF THE LENGTH AND DETAIL OF THE COURT'S OPINION, WHICH GAVE NO
HINT OF SUCH A SUGGESTION, AND IN VIEW ALSO OF THE FACT THAT FIELD, J.,
CONCURRED IN A SEPARATE OPINION AND WAITE, C. J., AND HARLAN, J., WROTE
SEPARATE DISSENTS TAKING THE POSITION WHICH THE COURT NOW ACCEPTS FOR
THIS CASE.  SEE NOTE 16 SUPRA.  HARLAN, J., HOWEVER, RECEDED FROM HIS
VIEW IN EX PARTE YOUNG, SUPRA, WHERE HE DISSENTED ON OTHER GROUNDS. 
209 U.S. AT 169, 174. 

FN20  SEE NOTE 19. 

FN21  IN EX PARTE ROWLAND, 104 U.S. 604, THE COUNTY COMMISSIONERS'
DISOBEDIENCE OF AN ORDER COMMANDING THEM TO COLLECT A CERTAIN TAX DID
NOT MOOT THE CONTROVERSY, WHICH WAS WHETHER THE JUDGMENT DEBTOR, BY
PROCEEDING AGAINST THE PROPER COUNTY OFFICIAL, THE TAX COLLECTOR, COULD
SATISFY ITS JUDGMENT BY FORCING COLLECTION OF THE TAX; AND, THE ORDER
BEING HELD VOID, THEIR ACTION IN DISOBEYING IT WAS HELD NOT TO BE
CONTEMPT. 

THE DISOBEDIENCE OF THE PETITIONER IN EX PARTE FISK, 113 U.S. 713,
DEPRIVED THE PLAINTIFF IN THE SUIT AGAINST HIM OF THE USE OF HIS
TESTIMONY BUT DID NOT DEFEAT THIS SUIT OR THE ABILITY OF THE COURTS TO
DECIDE WHETHER HE COULD BE FORCED TO SUBMIT TO EXAMINATION.  SEE NOTE
19 SUPRA. 

IN IN RE SAWYER, 124 U.S. 200, THE REFUSAL OF THE CITY OFFICIALS TO
OBEY AN ORDER ENJOINING THEM FROM REMOVING A POLICE JUDGE DID NOT
VITIATE JUDICIAL POWER TO DECIDE THE ISSUE WHETHER THE CITY OFFICIALS
POSSESSED THE REMOVAL POWER.  THE CONTROVERSY REMAINED AND, AS THIS
COURT POINTED OUT, IT WAS DETERMINABLE BY MANDAMUS OR QUO WARRANTO. 
THIS COURT HELD THE ORDER INVALID AND THE OFFICIALS NOT GUILTY OF
CONTEMPT. 

IN IN RE BURRUS, 136 U.S. 586, THE REFUSAL OF THE GRANDPARENTS TO
GIVE UP THE CHILD UPON ORDER ISSUED BY A FEDERAL COURT DID NOT DESTROY
THE POWER OF THE COURT, WHICH HAD ALREADY BEEN EXERCISED, THOUGH
IMPROPERLY THE COURT HELD, TO DETERMINE WHETHER THE CHILD WAS PROPERLY
IN THEIR CUSTODY OR IN THE CUSTODY OF THE FATHER.  AS THE CONTEMPT
ORDER WAS HELD VOID, HABEAS CORPUS WAS GRANTED. 

MOREOVER IN NONE OF THESE CASES DID THE DISOBEDIENCE DESTROY THE
JURISDICTION OF THE TRIAL AND APPELLATE COURTS TO DETERMINE
JURISDICTION. 

FN22  SEE NOTE 24.  THE ORDER ALLOWING APPEAL DIRECTED "THAT ALL
PROCEEDINGS AGAINST THE APPELLANT BE STAYED, AND THE CUSTODY OF THE
SAID APPELLANT BE RETAINED, PENDING THIS APPEAL." 

FN23  SEE NOTE 24.  THE COURT WAS REVIEWING ITS OWN ORDER, THE ONE
THAT WAS VIOLATED. 

FN24  THE STATEMENT WAS MADE IN RESPONSE TO COUNSEL'S CONTENTION THAT
THE ORDER ALLOWING THE APPEAL WAS VOID AND THEREFORE WOULD NOT SUPPORT
A CONVICTION FOR CONTEMPT.  THE COURT REJECTED THE PREMISE, NOT THE
CONCLUSION. 

THE BASIS OF COUNSEL'S CONTENTION WAS THAT THE CIRCUIT COURT LACKED
JURISDICTION AND THEREFORE THAT THIS COURT ALSO LACKED JURISDICTION. 
HIS BRIEF STATED:  "THE ONLY QUESTION, THEREFORE, IS WHETHER JOHNSON'S
PROCEEDING IN HABEAS CORPUS IN THE CIRCUIT COURT DID OR DID NOT IN FACT
CONSTITUTE A 'CASE THAT INVOLVES THE CONSTRUCTION OR APPLICATION OF THE
CONSTITUTION OF THE UNITED STATES.'  IF IT DID, THIS COURT HAD
APPELLATE JURISDICTION OF IT AND SHOULD PROCEED TO INQUIRE WHETHER ITS
ORDER HAS BEEN DISOBEYED.  IF IT DID NOT, THIS COURT HAD NO
JURISDICTION OF IT AND SHOULD NOW SO HOLD FOR THE PURPOSES OF THIS
PROCEEDING  ...."  AND ELSEWHERE THE BRIEF STATED: "WE ASSUME THAT IT
WILL HARDLY BE CONTENDED THAT THE MERE ALLOWANCE OF AN APPEAL IS
SUFFICIENT TO GIVE THE COURT JURISDICTION OF A CASE WHICH FROM ITS
NATURE IS NOT APPEALABLE.  SUCH ACTION IS PRO FORMA ONLY, AND AS IT IS
NECESSARILY HAD IN EVERY CASE THE JURISDICTION OF THE COURT WOULD
ALWAYS BE ESTABLISHED BY AN EX PARTE ORDER." 

IN ANSWER TO THESE ARGUMENTS THE GOVERNMENT'S BRIEF SAID:  "CERTAINLY
NO ONE WOULD CHALLENGE THE JURISDICTION OF THIS COURT IF THE CIRCUIT
COURT HAD JURISDICTION, AND ACCORDINGLY THE DEFENDANTS HERE DENY THE
JURISDICTION OF THIS COURT SIMPLY AS A COROLLARY TO THEIR CONTENTION
THAT THE CIRCUIT COURT DID NOT POSSESS JURISDICTION.  BUT THE
JURISDICTION OF THIS COURT IS NOT DEPENDENT UPON CONTENTIONS, AND IT
HAS JURISDICTION TO TAKE THE CASE AND RETAIN IT FOR FINAL DETERMINATION
WHETHER IT TURNS OUT THAT THE CIRCUIT COURT HAD JURISDICTION OR NOT." 

FN25  SEE NOTE 24.  NO ARGUMENT WAS MADE THAT EVEN IF THE CIRCUIT
COURT HAD JURISDICTION THIS COURT DID NOT.  THUS, THE STATEMENT IN THE
OPINION "BUT EVEN IF THE CIRCUIT COURT HAD NO JURISDICTION TO ENTERTAIN
JOHNSON'S PETITION, AND IF THIS COURT HAD NO JURISDICTION OF THE
APPEAL, THIS COURT, AND THIS COURT ALONE, COULD DECIDE THAT SUCH WAS
THE LAW," 203 U.S. AT 573, MEANS "BUT EVEN IF THE CIRCUIT COURT HAD NO
JURISDICTION TO ENTERTAIN JOHNSON'S PETITION, AND IF FOR THAT REASON
THIS COURT HAD NO JURISDICTION OF THE APPEAL," ETC. 

FN26  IT HAS BEEN HELD THAT HABEAS CORPUS WILL NOT LIE WHERE THE
DISOBEDIENCE WAS TO A LAWFUL, BUT ERRONEOUS, ORDER OF A COURT.  EX
PARTE KEARNEY, 7 WHEAT.  38.  SEE ALSO LOCKE V. UNITED STATES, 75 F.2D
157, 159:  "ERROR MUST BE CORRECTED BY APPEAL, AND CANNOT BE TESTED BY
DISOBEDIENCE.... WILLFUL DISOBEDIENCE OF AN INJUNCTION, HOWEVER
ERRONEOUS, ISSUED BY A COURT HAVING JURISDICTION WHILE SUCH INJUNCTION
IS IN FORCE UNREVERSED CONSTITUTES CONTEMPT OF COURT."  AND IT HAS BEEN
SAID THAT IF AN INJUNCTION IS REVERSED ON APPEAL ON GROUNDS OTHER THAN
"JURISDICTION," THE VIOLATOR MAY NEVERTHELESS BE PUNISHED FOR CRIMINAL,
THOUGH NOT FOR CIVIL, CONTEMPT.  WORDEN V. SEARLS, 121 U.S. 14; SALVAGE
PROCESS CORP. V. ACME TANK CLEANING CORP., 86 F.2D 727.    FN27  TO BE
DISTINGUISHED ARE CASES IN WHICH CONGRESS PROVIDES AN ADEQUATE BUT
LIMITED OPPORTUNITY FOR CHALLENGING THE VALIDITY OF ADMINISTRATIVE OR
OTHER ORDERS, BUT FORECLOSES SUCH OPPORTUNITY WHEN IT IS NOT TAKEN AS
PRESCRIBED.  SEE YAKUS V. UNITED STATES, 321 U.S. 414, CF. DISSENTING
OPINION, P. 460.  SEE ALSO UNITED STATES V. RUZICKA, 329 U.S. 287;
FALBO V. UNITED STATES, 320 U.S. 549; ESTEP V. UNITED STATES, 327 U.S.
114; GIBSON V. UNITED STATES, 329 U.S. 338.  THAT IS VERY DIFFERENT
FROM AFFORDING NO OPPORTUNITY WHATEVER EXCEPT BY OBEDIENCE. 

FN28 YAKUS V. UNITED STATES, 321 U.S. 414, DISSENTING OPINION, AT 479
FF. 

FN29  THUS, IN SOME CIVIL LAW COUNTRIES DAMAGES, AS WELL AS OTHER
PENALTIES, ARE ASSESSED IN A CRIMINAL PROCEEDING.  SEE SCHWENK,
CRIMINAL CODIFICATION AND GENERAL PRINCIPLES OF CRIMINAL LAW IN
ARGENTINA, MEXICO, CHILE, AND THE UNITED STATES:  A COMPARATIVE STUDY
(1942) 4 LA. L. REV. 351, 373-374; GOIRAND AND THOMPSON, THE FRENCH
JUDICIAL SYSTEM AND PROCEDURE IN FRENCH COURTS (1919) 14.  SEE ALSO
ESMEIN, A HISTORY OF CONTINENTAL CRIMINAL PROCEDURE (1913) 429-430. 

FN30  UPON THE AUTHORITIES, THE FOLLOWING PROCEDURAL PROVISIONS OF
THE BILL OF RIGHTS, AT LEAST, WOULD SEEM TO APPLY TO CRIMINAL CONTEMPT:
THE PROVISION AGAINST DOUBLE JEOPARDY, SEE IN RE BRADLEY, 318 U.S. 50;
THE PROVISION AGAINST SELF-INCRIMINATION, GOMPERS V. BUCKS STOVE & R.
CO., 221 U.S. 418, 444; THE PROVISION FOR DUE PROCESS INSOFAR AS IT
NECESSITATES "SUITABLE NOTICE AND ADEQUATE OPPORTUNITY TO APPEAR AND TO
BE HEARD," BLACKMER V. UNITED STATES, 284 U.S. 421, 440; AND, ALTHOUGH
THE SIXTH AMENDMENT PROTECTIONS HAVE BEEN SAID NOT TO APPLY AS SUCH TO
CRIMINAL CONTEMPTS, MYERS V. UNITED STATES, 264 U.S. 95, 104-105;
BLACKMER V. UNITED STATES, 284 U.S. AT 440, BUT SEE TEXT INFRA,
DOUBTLESS AT LEAST THE PROVISIONS FOR "A SPEEDY AND PUBLIC TRIAL," FOR
"COMPULSORY PROCESS" AND FOR THE ASSISTANCE OF COUNSEL, SEE COOKE V.
UNITED STATES, 267 U.S. 517, 537, ARE IMPLIED IN THE DUE PROCESS
PROVISION OF THE FIFTH AMENDMENT.  AND IT HAS BEEN SAID THAT THE
PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENTS IN THE EIGHTH
AMENDMENT APPLIES TO CRIMINAL CONTEMPT, UNITED STATES EX REL. BROWN V.
LEDERER, 140 F.2D 136, 139. 

THERE ARE ALSO PROTECTIONS NOT EXPRESSLY INCLUDED IN THE BILL OF
RIGHTS WHICH APPLY IN CRIMINAL CONTEMPT, E.G., THAT THE DEFENDANT IS
PRESUMED TO BE INNOCENT AND MUST BE PROVED GUILTY BEYOND A REASONABLE
DOUBT.  GOMPERS V. BUCKS STOVE & R. CO., 221 U.S. 418, 444.  AND SEE EX
PARTE HUDGINGS, 249 U.S. 378, 383:  "EXISTING WITHIN THE LIMITS OF AND
SANCTIONED BY THE CONSTITUTION, THE POWER TO PUNISH FOR CONTEMPT
COMMITTED IN THE PRESENCE OF THE COURT IS NOT CONTROLLED  ...  AS TO
MODES OF ACCUSATION AND METHODS OF TRIAL GENERALLY SAFEGUARDING THE
RIGHTS OF THE CITIZEN.  THIS, HOWEVER, EXPRESSES NO PURPOSE TO EXEMPT
JUDICIAL AUTHORITY FROM CONSTITUTIONAL LIMITATIONS, SINCE ITS GREAT AND
ONLY PURPOSE IS TO SECURE JUDICIAL AUTHORITY FROM OBSTRUCTION IN THE
PERFORMANCE OF ITS DUTIES TO THE END THAT MEANS APPROPRIATE FOR THE
PRESERVATION AND ENFORCEMENT OF THE CONSTITUTION MAY BE SECURED." 

FN31  SEE PART IV. 

FN32  THE CONFUSION, AT LEAST AS TO THE MATTER OF INDICTMENTS AND
JURY TRIAL, CF. NOTE 33, HAS ITS ORIGIN IN HISTORICAL ERROR EXPOSED IN
FOX, THE HISTORY OF CONTEMPT OF COURT (1927), AND FRANKFURTER AND
LANDIS, POWER OF CONGRESS OVER PROCEDURE IN "INFERIOR" FEDERAL COURTS -
A STUDY IN SEPARATION OF POWERS (1924) 37 HARV. L. REV. 1010.  "DOWN TO
THE EARLY PART OF THE EIGHTEENTH CENTURY CASES OF CONTEMPT EVEN IN AND
ABOUT THE COMMON-LAW COURTS WHEN NOT COMMITTED BY PERSONS OFFICIALLY
CONNECTED WITH THE COURT WERE DEALT WITH BY THE ORDINARY COURSE OF LAW,
I.E., TRIED BY JURY, EXCEPT WHEN THE OFFENDER CONFESSED OR WHEN THE
OFFENSE WAS COMMITTED 'IN THE ACTUAL VIEW OF THE COURT.'"  FRANKFURTER
AND LANDIS, SUPRA, AT 1042.  UNTIL 1720 "THERE IS NO INSTANCE IN THE
COMMON-LAW PRECEDENTS OF PUNISHMENT OTHERWISE THAN AFTER TRIAL IN THE
ORDINARY COURSE AND NOT BY SUMMARY PROCESS."  ID., 1046. 

HOWEVER, WILMOT, J., IN 1765, INFLUENCED BY STAR CHAMBER PROCEDURE
AND PRECEDENTS, ALTHOUGH THE STAR CHAMBER HAD BEEN ABOLISHED IN 1641,
STATED THAT IT WAS "IMMEMORIAL USAGE" TO PUNISH ALL CONTEMPTS
SUMMARILY.  ALMON'S CASE, WILMOT'S NOTES, P. 243.  AND ALTHOUGH THIS
OPINION WAS NOT PUBLISHED UNTIL THIRTY-SEVEN YEARS LATER, "THERE IS
AMPLE EVIDENCE THAT, AS A RESULT OF PRIVATE COMMUNICATION BETWEEN
WILMOT AND BLACKSTONE, WILMOT'S VIEWS OF 1765 FOUND THEIR WAY, 'BOTH IN
PHRASE AND MATTER' INTO THE FOURTH VOLUME OF THE FAMOUS COMMENTARIES
PUBLISHED IN 1769  ..."  FRANKFURTER AND LANDIS, SUPRA, AT 1046, N.
128.  WILMOT'S ERROR "HAS BEDEVILLED THE LAW OF CONTEMPT BOTH IN
ENGLAND AND IN THIS COUNTRY EVER SINCE."  ID., 1047. 

THIS HISTORY FURNISHES A SLENDER THREAD INDEED FOR THINKING THAT THE
CONSTITUTION MAKERS HAD NO PURPOSE TO APPLY THE USUAL PROCEDURAL
PROTECTIONS TO CRIMINAL CONTEMPTS.  "...  IT IS VERY DOUBTFUL WHETHER
AT THE DATE OF THE CONSTITUTION THAT DOCTRINE (OF ALMON'S CASE, SUPRA)
DID FORM PART OF THE COMMON LAW ADOPTED BY THE UNITED STATES.  MR.
JUSTICE WILMOT'S UNDELIVERED JUDGEMENT LAY CONCEALED UNTIL THE YEAR
1802, AND, SO FAR AS IS KNOWN, WAS NOT CITED IN AN ENGLISH COURT UNTIL
THE HEARING OF BURDETT V. ABBOT IN 1811.  IT WAS FIRST CITED WITH
APPROVAL FROM THE BENCH IN 1821, AND WAS NOT THEREFORE ADOPTED AS THE
COMMON LAW OF ENGLAND UNTIL AFTER THE ESTABLISHMENT OF THE AMERICAN
CONSTITUTION."  FOX, SUPRA, AT 207. 

FN33  SEE NOTE 30.  IT HAS BEEN RULED CONSISTENTLY, HOWEVER, THAT THE
RIGHTS TO HAVE THE PROCEEDING BEGUN BY INDICTMENT, AMEND. V, AND TRIED
BY JURY, AMEND. VI, DO NOT APPLY.  E.G., EILENBECKER V. DISTRICT COURT,
134 U.S. 31; GOMPERS V. UNITED STATES, 233 U.S. 604; IN RE DEBS, 158
U.S. 564. 

FN34  DEFENDANTS HAVE NOT ARGUED EITHER IN THE DISTRICT COURT OR IN
THIS COURT THAT THEY ARE CONSTITUTIONALLY ENTITLED TO A JURY TRIAL. 
AND THEY EXPRESSLY WAIVED IN OPEN COURT WHATEVER RIGHTS THEY HAD TO AN
ADVISORY JURY.  ON THE OTHER HAND IF, AS I THINK, THE NORRIS-LAGUARDIA
ACT'S PROVISIONS HAVE BEEN ADOPTED FOR THIS AND LIKE CASES, CF. PART I,
SEC. 11 OF THAT ACT OF ITS OWN FORCE SECURED THE RIGHT OF TRIAL BY JURY
AND FORBADE WAIVER OTHERWISE THAN IN WRITING.  FEDERAL RULES OF
CRIMINAL PROCEDURE, RULE 23(A). 

FN35  IN CIVIL CASES UNDER RULE 73 APPEAL IS TAKEN BY FILING NOTICE
THEREOF "WITHIN THE TIME PRESCRIBED BY LAW," AND GENERALLY, THOUGH
THERE ARE EXCEPTIONS, THE TIME IS THREE MONTHS.  28 U.S.C. SEC. 230;
MOSIER V. FEDERAL RESERVE BANK, 132 F.2D 710, 712.  IN CRIMINAL CASES
THE FEDERAL RULES NOW ALLOW TAKING AN APPEAL BY FILING NOTICE OF APPEAL
AS IN CIVIL CASES.  BUT AN APPEAL MUST BE TAKEN BY A DEFENDANT WITHIN
10 DAYS AFTER ENTRY OF JUDGMENT OR AFTER DENIAL OF MOTION FOR NEW
TRIAL.  RULE 37(A)(2).  IN NYE V. UNITED STATES, 313 U.S. 33, IT WAS
HELD THAT 28 U.S.C. SEC. 230 RATHER THAN THE CRIMINAL APPEALS RULES
GOVERNED TIMELINESS IN A CRIMINAL CONTEMPT APPEAL.  BUT THE NEW
CRIMINAL RULES WOULD SEEM TO APPLY TO CRIMINAL CONTEMPTS.  MOORE V.
UNITED STATES, 150 F.2D 323, 324.  SEE RULES 42 AND 54; 55 STAT. 779,
18 U.S.C. SEC. 689. 

ON CERTIORARI, IF THE RULES OF CRIMINAL PROCEDURE GOVERN, THERE IS
ALSO A DIFFERENCE.  IN CIVIL CASES THE TIME FOR PETITIONING FOR
CERTIORARI IS THREE MONTHS.  IN CRIMINAL CASES THE PETITION MUST BE
FILED WITHIN THIRTY DAYS AFTER ENTRY OF JUDGMENT.  RULE 37(B)(2). 
COMPARE NYE V. UNITED STATES, SUPRA, AT 42, N. 6, AS TO THE LAW PRIOR
TO THE NEW CRIMINAL RULES. 

THE LARGEST PRESENT DIFFERENCE BETWEEN APPEALS IN CIVIL AND CRIMINAL
CONTEMPTS IS THAT, "EXCEPT IN CONNECTION WITH AN APPEAL FROM A FINAL
JUDGMENT OR DECREE, A PARTY TO A SUIT MAY NOT REVIEW UPON APPEAL AN
ORDER FINING OR IMPRISONING HIM FOR THE COMMISSION OF A CIVIL
CONTEMPT."  FOX V. CAPITAL CO., 299 U.S. 105, 107, AND CASES CITED. 
COMPARE LAMB V. CRAMER, 285 U.S. 217.  ON THE OTHER HAND, IF THE
CONTEMPT IS CRIMINAL, IT MAY BE DIRECTLY REVIEWED.  UNION TOOL CO. V.
WILSON, 259 U.S. 107.  IT HAS BEEN HELD THAT WHERE THE CONTEMPT IS BOTH
CIVIL AND CRIMINAL, THE CRIMINAL PROCEDURE GOVERNS FOR PURPOSES OF
REVIEW SO THAT THERE MAY BE IMMEDIATE REVIEW OF BOTH THE PART THAT IS
CIVIL AND THE PART THAT IS CRIMINAL.  UNION TOOL CO. V. WILSON, SUPRA,
AT 111; NYE V. UNITED STATES, 313 U.S. AT 42-43. 

FN36  THERE AS HERE THE CONTEMPT PROCEEDINGS WERE ENTITLED AND
CONDUCTED AS COLLATERAL TO CIVIL LITIGATION BETWEEN THE PARTIES AND THE
ORDER FOR CONTEMPT HAD BEEN GROUNDED UPON DISOBEDIENCE TO A RESTRAINING
ORDER ISSUED IN THE COURSE OF THE LITIGATION, CONDUCT WHICH WOULD HAVE
SUSTAINED EITHER CIVIL OR CRIMINAL PENALTY.  THE COURT OF APPEALS HAD
HELD THE PROCEEDING CRIMINAL.  BUT THIS COURT HELD IT TO BE CIVIL SINCE
IT WAS COLLATERAL, NOT AN INDEPENDENT SUIT AT LAW TO VINDICATE THE
PUBLIC INTEREST.  HENCE, IT FOLLOWED THAT THE CRIMINAL PENALTY COULD
NOT STAND.  NEITHER THE NORRIS-LAGUARDIA ACT NOR THE WAR LABOR DISPUTES
ACT WAS THEN IN FORCE. 

FN37  THROUGHOUT THE OPINION THE COURT INSISTED THE TWO FORMS OF
RELIEF ARE ALTOGETHER INCOMPATIBLE NOT ONLY FOR INTERCHANGEABILITY
BETWEEN THE TWO TYPES OF PROCEEDING, BUT NECESSARILY FOR COMMINGLING IN
INDISTINGUISHABLE CONGLOMERATION.  IMPRISONMENT AS PENALTY FOR CRIMINAL
CONTEMPT COULD BE IMPOSED FOR FIXED TERMS, BUT IN CIVIL CONTEMPT THIS
COULD NOT BE DONE, THE COURT'S POWER BEING LIMITED TO REMEDIAL OR
COERCIVE IMPRISONMENT, THAT IS, UNTIL THE PERSON CONVICTED SHOULD
COMPLY WITH THE COURT'S ORDER.  SO ALSO WITH FINES, WHICH IN CIVIL
CONTEMPT CAN BE NO MORE IN AMOUNT THAN IS COMMENSURATE WITH THE INJURY
INFLICTED OR IS NECESSARY TO SECURE COMPLIANCE AND MUST BE CONTINGENT,
WHEREAS THE LIMITATION REQUIRING CORRELATION TO THE AMOUNT OF INJURY
DOES NOT APPLY TO FINES IN CRIMINAL PROCEEDINGS.  221 U.S. AT 442-444,
449.  THE SAME DISTINCTION APPLIES AS TO THE PAYMENT OF COSTS.  P.
447.  SEE PART IV. 

AS WILL APPEAR, THIS DISTINCTION IS OF PARAMOUNT IMPORTANCE IN THIS
CASE.  AND SO IT WAS IN THE GOMPERS CASE, FOR THE MAIN CAUSE HAD BEEN
SETTLED, AND THE COURT HELD THIS REQUIRED NOT ONLY REVERSAL, BUT
DISMISSAL OF THE CONTEMPT PROCEEDING, WHICH WOULD NOT HAVE BEEN TRUE IN
ONE FOR CRIMINAL CONTEMPT.  221 U.S. AT 451-452. 

FN38  AS WITH THE FACTOR OF RELIEF, THE OPINION THROUGHOUT USES
ALTERNATIVE, NOT CONJUNCTIVE, LANGUAGE CONCERNING THE TWO TYPES OF
PROCEEDINGS.  CIVIL CONTEMPTS, IT SAID, "ARE BETWEEN THE ORIGINAL
PARTIES AND ARE INSTITUTED AND TRIED AS A PART OF THE MAIN CAUSE.  BUT
ON THE OTHER HAND, PROCEEDINGS AT LAW FOR CRIMINAL CONTEMPT ARE BETWEEN
THE PUBLIC AND THE DEFENDANT, AND ARE NOT A PART OF THE ORIGINAL
CAUSE."  221 U.S. AT 445.  SEE ALSO P. 446. 

FN39  FOR EXAMPLE, MOST FREQUENTLY PERHAPS THE METHODS AND TIMES FOR
SECURING APPELLATE REVIEW, WHICH AT THE TIME OF THE GOMPERS DECISION
INCLUDED WHETHER THE CASE COULD BE REVIEWED BY WRIT OF ERROR OR
APPEAL.  221 U.S. AT 444; CF. BESSETTE V. CONKEY CO., 194 U.S. 324. 
SEE NOTE 40; SEE ALSO NOTE 35. 

FN40  "THE QUESTION AS TO THE CHARACTER OF SUCH PROCEEDINGS HAS
GENERALLY BEEN RAISED, IN THE APPELLATE COURT, TO DETERMINE WHETHER THE
CASE COULD BE REVIEWED BY WRIT OF ERROR OR ON APPEAL.  BESSETTE V.
CONKEY, 194 U.S. 324.  BUT IT MAY INVOLVE MUCH MORE THAN MERE MATTERS
OF PRACTICE.  FOR, NOTWITHSTANDING THE MANY ELEMENTS OF SIMILARITY IN
PROCEDURE AND IN PUNISHMENT, THERE ARE SOME DIFFERENCES BETWEEN THE TWO
CLASSES OF PROCEEDINGS WHICH INVOLVE SUBSTANTIAL RIGHTS AND
CONSTITUTIONAL PRIVILEGES.  WITHOUT DECIDING WHAT MAY BE THE RULE IN
CIVIL CONTEMPT, IT IS CERTAIN THAT IN PROCEEDINGS FOR CRIMINAL CONTEMPT
THE DEFENDANT IS PRESUMED TO BE INNOCENT, HE MUST BE PROVED TO BE
GUILTY BEYOND A REASONABLE DOUBT, AND CANNOT BE COMPELLED TO TESTIFY
AGAINST HIMSELF.  BOYD V. UNITED STATES, 116 U.S. 616; UNITED STATES V.
JOSE, 63 FED. REP. 951; STATE V. DAVIS, 50 W. VA. 100; KING V. OHIO
RY., 7 BISS.  529; SABIN V. FOGARTY, 70 FED. REP. 482, 483; DRAKEFORD
V. ADAMS, 98 GEORGIA, 724."  221 U.S. AT 444. 

FN41  SEE NOTE 40. 

FN42  SEE NOTES 35, 37, 39. 

FN43  CF. NOTE 40. 

FN44  "A CRIMINAL CONTEMPT EXCEPT AS PROVIDED IN SUBDIVISION (A) OF
THIS RULE SHALL BE PROSECUTED ON NOTICE.  THE NOTICE SHALL STATE THE
TIME AND PLACE OF HEARING, ALLOWING A REASONABLE TIME FOR THE
PREPARATION OF THE DEFENSE, AND SHALL STATE THE ESSENTIAL FACTS
CONSTITUTING THE CRIMINAL CONTEMPT CHARGED AND DESCRIBE IT AS SUCH. 
THE NOTICE SHALL BE GIVEN ORALLY BY THE JUDGE IN OPEN COURT IN THE
PRESENCE OF THE DEFENDANT OR, ON APPLICATION OF THE UNITED STATES
ATTORNEY OR OF AN ATTORNEY APPOINTED BY THE COURT FOR THAT PURPOSE, BY
AN ORDER TO SHOW CAUSE OR AN ORDER OF ARREST...."  RULE 42(B), FEDERAL
RULES OF CRIMINAL PROCEDURE. 

FN45  JUDGE L. HAND'S OPINION IN THE MCCANN CASE READS IN PART AS
FOLLOWS:  "...  THE RESPONDENT WILL OFTEN FIND IT HARD TO TELL WHETHER
THE PROSECUTION IS NOT A REMEDIAL MOVE IN THE SUIT, UNDERTAKEN ON
BEHALF OF THE CLIENT.  THIS CAN BE MADE PLAIN IF THE JUDGE ENTERS AN
ORDER IN LIMINE, DIRECTING THE ATTORNEY TO PROSECUTE THE RESPONDENT
CRIMINALLY ON BEHALF OF THE COURT, AND IF THE PAPERS SUPPORTING THE
PROCESS CONTAIN A COPY OF THIS ORDER OR ALLEGE ITS CONTENTS CORRECTLY. 
WE THINK THAT UNLESS THIS IS DONE THE PROSECUTION MUST BE DEEMED TO BE
CIVIL AND WILL SUPPORT NO OTHER THAN A REMEDIAL PUNISHMENT.  NOTHING OF
THE SORT WAS DONE HERE, AND THE ORDER MUST BE REVERSED...."  80 F.2D
211, 214-215. 

THE POSSIBILITIES OF CONFUSION ARE MULTIPLIED WHEN THE CONTEMPT IS
INSTITUTED IN A SUIT IN WHICH THE UNITED STATES IS A PARTY, SINCE THE
UNITED STATES MAY BRING CIVIL AS WELL AS CRIMINAL CONTEMPT
PROCEEDINGS.  MCCRONE V. UNITED STATES, 307 U.S. 61.    FN46  THE COURT
SAID:  "INASMUCH, THEREFORE, AS PROCEEDINGS FOR CIVIL CONTEMPT ARE A
PART OF THE ORIGINAL CAUSE, THE WEIGHT OF AUTHORITY IS TO THE EFFECT
THAT THEY SHOULD BE ENTITLED THEREIN.  BUT THE PRACTICE HAS HITHERTO
BEEN SO UNSETTLED IN THIS RESPECT THAT WE DO NOT NOW TREAT IT AS
CONTROLLING, BUT ONLY AS A FACT TO BE CONSIDERED ALONG WITH OTHERS AS
WAS DONE IN WORDEN V. SEARLS, 121 U.S. 25, IN DETERMINING A SIMILAR
QUESTION."  221 U.S. AT 446. 

FN47  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE
RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE
AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH
DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE
INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED
WITH THE WITNESSES AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR
OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL
FOR HIS DEFENCE."  U.S. CONST. AMEND. VI. 

FN48  NOT ONLY IN THE RULING THAT REVERSAL WAS REQUIRED FOR THE
IMPOSITION OF THE CRIMINAL PENALTY IN THE PROCEEDING HELD TO BE CIVIL,
BUT ALSO IN THE ORDER FOR DISMISSAL ON THE GROUND THAT THE CAUSE,
INCLUDING THE CONTEMPT PHASE, HAD BECOME MOOT.  SEE NOTE 37 SUPRA. 

FN49  CF. IN RE MICHAEL, 326 U.S. 224, 227; DISSENTING OPINION OF
HOLMES, J., IN TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402,
422; MICHAELSON V. UNITED STATES, 266 U.S. 42, 67: "THE ONLY
SUBSTANTIAL DIFFERENCE BETWEEN SUCH A PROCEEDING AS WE HAVE HERE
(CRIMINAL CONTEMPT), AND A CRIMINAL PROSECUTION BY INDICTMENT OR
INFORMATION IS THAT IN THE LATTER THE ACT COMPLAINED OF IS THE
VIOLATION OF A LAW AND IN THE FORMER THE VIOLATION OF A DECREE.  IN THE
CASE OF THE LATTER, THE ACCUSED HAS A CONSTITUTIONAL RIGHT OF TRIAL BY
JURY; WHILE IN THE FORMER HE HAS NOT." 

FN50  SEE EX PARTE HUDGINGS, 249 U.S. 378, 383, QUOTED IN NOTE 30
SUPRA. 

FN51  BLACKMER V. UNITED STATES, 284 U.S. 421, 440.  THE RULING WAS
FIRST MADE IN MYERS V. UNITED STATES, 264 U.S. 95, 104-105, IN
CONNECTION WITH A STATUTORY VENUE PROBLEM RELATING TO JUDICIAL
DISTRICTS AND DIVISIONS WHICH IS CORRELATIVE CONSTITUTIONALLY TO THE
RIGHT OF JURY TRIAL.  THE RULING WAS REASSERTED IN EX PARTE GROSSMAN,
267 U.S. 87, 117, WHICH HELD THAT THE PARDONING POWER EXTENDED TO
CRIMINAL CONTEMPTS.  IN THE GROSSMAN CASE THE STATEMENT WAS OBVIOUSLY
DICTUM.  IN THE MYERS CASE IT WAS DICTUM AS TO ALL GUARANTIES EXCEPT
PERHAPS THAT OF TRIAL IN THE DISTRICT WHERE THE CRIME WAS COMMITTED, A
GUARANTY AS STATED ABOVE CORRELATED TO JURY TRIAL. 

FN52  AS STATED IN NOTE 37, COERCIVE RELIEF IS CIVIL IN CHARACTER,
GOMPERS V. BUCKS STOVE & R. CO., 221 U.S. 418, 442, THE DECREE BEING
WHEN IMPRISONMENT IS IMPOSED THAT THE DEFENDANT STAND COMMITTED UNLESS
AND UNTIL HE PERFORMS THE ACT REQUIRED BY THE COURT'S ORDER.  WHEN THIS
IS DONE THE SENTENCE IS DISCHARGED, FOR THE DEFENDANT CARRIES THE KEYS
OF HIS PRISON IN HIS OWN POCKET.  IN RE NEVITT, 117 F. 448, 461.  THE
LIMITATION IS A COROLLARY OF THE CIVIL CHARACTER OF THE REMEDY.  THIS
FORBIDS IMPOSITION OF FIXED-TERM SENTENCES FOR COERCIVE PURPOSES. 
GOMPERS V. BUCKS STOVE & R. CO., SUPRA, ALTHOUGH THEY HAVE "INCIDENTAL"
COERCIVE EFFECTS.  ID., AT 443. 

THE PURPOSE AND CHARACTER OF THE RELIEF, NOT ITS PARTICULAR FORM,
DETERMINE ITS LIMITS.  ID., AT 443, CITING DOYLE V. LONDON GUARANTEE
CO., 204 U.S. 599, 605, 607.  HENCE, WHEN A FINE IS USED IN
SUBSTITUTION FOR COERCIVE IMPRISONMENT, IT ALSO MUST BE CONTINGENT,
GIVING OPPORTUNITY FOR COMPURGATION.  UNLESS THIS IS DONE, THE FINE
TAKES ON PUNITIVE CHARACTER.  DOYLE V. LONDON GUARANTEE CO., SUPRA. 

FN53  IT IS IN DEFINING THE NATURE AND CHARACTER OF CRIMINAL
PENALTIES THAT LEGISLATIVE JUDGMENT AND, WITHIN THE AUTHORITY IT
CONFERS, THE JUDGMENT OF THE TRIAL COURT RATHER THAN APPELLATE COURTS
HAVE THE WIDEST RANGE.  LEGISLATIVE EXPERIENCE AND JUDGMENT IN THIS
FIELD THEREFORE FURNISH A MEASURE ENTITLED TO GREAT AND IN SOME
INSTANCES I THINK CONCLUSIVE WEIGHT FOR CONSIDERATION OF THE ALLOWABLE
RANGE OF PUNISHMENT, AS SUCH, IN CRIMINAL CONTEMPTS WHERE THE PENALTY
IS UNDEFINED BY STATUTE. 

THE ONLY CRIME FOR WHICH THE AMOUNT OF THE FINE HAS NO MAXIMUM IS
TREASON, WHERE THE FINE AUTHORIZED IS NOT LESS THAN $10,000.  18 U.S.C.
SEC. 2.  FOR RESCUE OF ONE CONVICTED OF A CAPITAL CRIME WHILE GOING TO
OR DURING EXECUTION THE FINE MAY BE NOT MORE THAN $25,000.  18 U.S.C.
SEC. 248.  MAXIMUM FINES OF $20,000 ARE SET FOR OFFERING A BRIBE TO A
JUDICIAL OFFICER AND FOR ACCEPTANCE OF A BRIBE BY A JUDGE.  18 U.S.C.
SECS. 237, 238.  THE SAME MAXIMUM IS SET FOR MAILING MATTER WITH INTENT
TO INCREASE WEIGHT IN ORDER TO INCREASE THE COMPENSATION OF A RAILROAD
MAIL CARRIER.  18 U.S.C. SEC. 358.  IN SOME CASES OF EMBEZZLEMENT AND
LIKE CRIMES, THE FINE MAY BE THE AMOUNT EMBEZZLED, E.G., 18 U.S.C. SEC.
173, AND IN ONE INSTANCE TWICE THAT AMOUNT.  18 U.S.C. SEC. 172.  BUT
ORDINARILY THE MAXIMUM ALLOWED BY CONGRESS HAS BEEN $10,000, AND OFTEN
IT IS LESS. 

MOREOVER, WHERE CONGRESS ITSELF HAS FIXED A MAXIMUM FINE FOR CRIMINAL
PUNISHMENT OF THE ACT HELD TO BE A CONTEMPT, THAT JUDGMENT WOULD SEEM
TO FURNISH A STANDARD TO BE APPLIED IN THE CONTEMPT PROCEEDING.  SEE IN
RE MICHAEL, 326 U.S. 224, 227.  IN THIS CASE THE WAR LABOR DISPUTES ACT
AUTHORIZED A FINE OF NOT OVER $5000 OR IMPRISONMENT FOR NOT OVER ONE
YEAR, OR BOTH.  50 U.S.C. APP. SEC. 1506(B). 

FN54  THE FINES IN THIS CASE WERE FLAT FINES IMPOSED ABSOLUTELY,
WITHOUT CONTINGENCY FOR COMPURGATION OR OTHERWISE.  THE COURT ACTED ON
THE GOVERNMENT'S RECOMMENDATION, WHICH AS TO THE UNION WAS MADE ON THE
BASIS OF $250,000 A DAY FOR THE FOURTEEN DAYS ELAPSED AFTER THE
RESTRAINING ORDERS ISSUED AND THE VIOLATIONS OCCURRED.  NO PART OF THE
FINE WAS LAID CONTINGENTLY UPON FUTURE CONDUCT.  BOTH PENALTIES
THEREFORE WOULD SEEM TO BE STRICTLY CRIMINAL, OR CRIMINAL COMBINED WITH
CIVIL DAMAGES FOR PAST CONDUCT, NOT COERCIVE IN THE SENSE OF COERCIVE
RELIEF AS CONTEMPLATED IN THE DECISIONS, SEE NOTE 52, ALTHOUGH THE
AMOUNTS FIXED FOR EACH FINE GAVE IT "INCIDENTAL" COERCIVE EFFECT IN THE
POPULAR SENSE.  IBID. 

FN55 THE GOVERNMENT'S ASSERTED LOSS IN REVENUES, CHIEFLY RELIED ON
FOR THIS PURPOSE, WAS NOT ONLY HIGHLY SPECULATIVE RATHER THAN PROVEN IN
AMOUNT.  IT WAS INJURY WHICH WOULD HAVE FOLLOWED FROM THE STRIKE HAD IT
ARISEN BEFORE OR AFTER SEIZURE.  SUCH DAMAGES MAY RESULT FROM ANY
STRIKE WHETHER THE GOVERNMENT OR ANOTHER IS "EMPLOYER," AND WOULD SEEM
TO BE BOTH SPECULATIVE AND INDIRECT WITHIN THE RULE FORBIDDING THE
AWARD OF SUCH DAMAGES.  HADLEY V. BAXENDALE, 9 EXCH.  341. 

FN56  SEE NOTES 54, 57.  THE ORDER FOR COERCIVE FINES READS, BY
ANALOGY TO THE ORDER FOR COERCIVE IMPRISONMENT, CF. NOTE 52, THAT,
UNLESS THERE IS OBEDIENCE TO THE ORDER OF THE COURT, THE FINE SHALL BE
PAID ON OR BEFORE A DAY CERTAIN, IN DEFAULT OF WHICH THE DEFENDANT
SHALL BE IMPRISONED UNTIL IT IS PAID.  SEE DOYLE V. LONDON GUARANTEE
CO., 204 U.S. 599, 602.  IN THE CASE OF CORPORATIONS OR UNINCORPORATED
ASSOCIATIONS, THE DEFAULT PROVISION IS EITHER THAT THE RESPONSIBLE
OFFICERS BE IMPRISONED, PARKER V. UNITED STATES, 126 F.2D 370, 379, OR
PERHAPS THAT EXECUTION ISSUE AGAINST THE CONTEMNOR'S PROPERTY.  SEE
UNITED STATES V. RIDGEWOOD GARMENT CO., 44 F.SUPP.  435, 436.  COMPARE
REV. STAT. SEC. 1041, 18 U.S.C. SEC. 569, WITH 38 STAT. 738, 28 U.S.C.
SEC. 387. 

FN57  SEE THE OPINION OF THE COURT, 330 U.S. 258, 300, N. 74.  ONLY
IN RARE INSTANCES HAVE OTHER FEDERAL COURTS, AFTER CONSIDERATION, DONE
SO.  SEE KREPLIK V. COUCH PATENTS CO., 190 F. 565.  SEE ALSO THE
DISCUSSION, BY WAY OF DICTUM, IN HENDRYX V. FITZPATRICK, 19 F. 810,
811, 813.  IN STILL OTHER INSTANCES THE TWO TYPES OF CONTEMPT HAVE BEEN
MINGLED WITHOUT DISCUSSION.  SEE CHICAGO DIRECTORY CO. V. UNITED STATES
DIRECTORY CO., 123 F. 194.  AND SEE WILSON V. BYRON JACKSON CO., 93
F.2D 577, DISMISSING FOR JURISDICTIONAL REASONS AN APPEAL FROM AN ORDER
ADJUDGING THE APPELLANTS GUILTY OF CIVIL AND CRIMINAL CONTEMPT. 

FN58  THE TWO CAPACITIES ARE DISTINCT, NOT IDENTICAL.  EACH, IT IS
TRUE, MAY BE EXERCISED ULTIMATELY IN THE PUBLIC INTEREST.  BUT IF IN
THE CAPACITY OF TEMPORARY "EMPLOYER" THE GOVERNMENT IS TO HAVE THE
BENEFITS OF THAT STATUS, IT SHOULD BE SUBJECT ALSO TO ITS LIMITATIONS
EXCEPT AS CONGRESS OTHERWISE PROVIDES.  TO JUMBLE THE TWO CAPACITIES AS
IS DONE HERE IS ONLY TO NULLIFY THE RIGHTS IN TRIAL AND REMEDY OF
EMPLOYEES AND OTHERS. 

FN59  THE LIMITATIONS UPON CRIMINAL CONTEMPT, PROCEDURAL AND
REMEDIAL, ALWAYS APPLY TO THE GOVERNMENT, FOR IT ALONE CAN BRING THAT
PROCEEDING.  IT CANNOT DEFEAT THEM BY MINGLING THAT PROCEEDING AND
RELIEF WITH CIVIL ONES, MERELY BY VIRTUE OF BEING ALSO THE COMPLAINING
CIVIL LITIGANT. 

FN60  SEE NOTE 53 SUPRA. 

FN61  IBID. 

FN62  THE OPINION STATES:  "IN IMPOSING A FINE FOR CRIMINAL CONTEMPT,
THE TRIAL JUDGE MAY PROPERLY TAKE INTO CONSIDERATION  ...  THE
NECESSITY OF EFFECTIVELY TERMINATING THE DEFENDANT'S DEFIANCE AS
REQUIRED BY THE PUBLIC INTEREST  ..."  330 U.S. 258, 303. 

FN63  THE STATEMENT IN THE GOMPERS OPINION, 221 U.S. AT 443, THAT
CRIMINAL PENALTIES HAVE INCIDENTAL COERCIVE EFFECTS AND CIVIL ONES
INCIDENTAL PENAL EFFECTS, WAS NOT INTENDED TO CONTRADICT ITS RULING
THAT CRIMINAL PENALTIES CANNOT BE IMPOSED IN CIVIL CONTEMPT PROCEEDINGS
OR THEREFORE COMMINGLED INDISTINGUISHABLY. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 
..END :





















CONE V. WEST VIRGINIA PAPER CO., 330 U.S. 212 


NO. 184.  ARGUED FEBRUARY 3, 1947.  - DECIDED MARCH 3, 1947.  - 153 F.2D
576, REVERSED. 


WHERE A PARTY WHOSE MOTION FOR A DIRECTED VERDICT HAS BEEN DENIED IN A
FEDERAL DISTRICT COURT FAILS, WITHIN 10 DAYS AFTER RECEPTION OF A
VERDICT AGAINST HIM, TO MAKE A MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT, AS AUTHORIZED BY RULE 50(B) OF THE FEDERAL RULES OF CIVIL
PROCEDURE, AN APPELLATE COURT IS PRECLUDED FROM DIRECTING ENTRY OF SUCH
A JUDGMENT.  PP. 217-218. 

CONE V. WEST VIRGINIA PULP & PAPER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

PETITIONER SUED RESPONDENT IN A STATE COURT FOR DAMAGES FOR TRESPASS
UPON LANDS.  THE SUIT WAS REMOVED TO THE FEDERAL DISTRICT COURT BECAUSE
OF DIVERSITY OF CITIZENSHIP.  A JUDGMENT FOR THE PETITIONER WAS
REVERSED BY THE CIRCUIT COURT OF APPEALS, WHICH DIRECTED ENTRY OF
JUDGMENT FOR THE RESPONDENT.  153 F.2D 576.  THIS COURT GRANTED
CERTIORARI "LIMITED TO THE QUESTIONS OF FEDERAL PROCEDURE RAISED BY THE
PETITION FOR THE WRIT."  329 U.S. 701.  REVERSED, P. 218. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER BROUGHT THIS ACTION IN A SOUTH CAROLINA STATE COURT. 
UPON MOTION OF RESPONDENT, IT WAS REMOVED TO THE FEDERAL DISTRICT COURT
BECAUSE OF DIVERSITY OF CITIZENSHIP OF THE PARTIES.  THE COMPLAINT
CLAIMED $25,000 DAMAGES UPON ALLEGATIONS THAT THE RESPONDENT'S AGENTS
HAD TRESPASSED UPON AND CUT TIMBER FROM LANDS OWNED BY AND IN THE
POSSESSION OF THE PETITIONER.  RESPONDENT'S ANSWER DENIED THAT THE
PETITIONER HAD TITLE OR POSSESSION OF THE LANDS AND TIMBER.  BOTH TITLE
AND POSSESSION BECAME CRUCIAL ISSUES IN THE TRIAL.  THE BURDEN OF
PROVING THEM RESTED ON THE PETITIONER.  FN1  WHEN ALL THE EVIDENCE OF
BOTH PARTIES HAD BEEN INTRODUCED, THE RESPONDENT MOVED FOR A DIRECTED
VERDICT IN ITS FAVOR ON THE GROUND THAT THE PETITIONER HAD FAILED TO
PROVE THAT HE EITHER OWNED OR WAS IN POSSESSION OF THE LAND.  FN2  THIS
MOTION WAS DENIED.  THE JURY RETURNED A VERDICT FOR PETITIONER FOR
$15,000, AND THE COURT ENTERED JUDGMENT ON THE VERDICT.  THE RESPONDENT
MOVED FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE.  THIS
MOTION WAS DENIED.  RESPONDENT DID NOT MOVE FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AS IT MIGHT HAVE DONE UNDER RULE 50(B) OF
THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH IS SET OUT BELOW.  FN3 

THE CIRCUIT COURT OF APPEALS DECIDED THAT THE ADMISSION OF CERTAIN
EVIDENCE OFFERED BY THE PETITIONER TO PROVE LEGAL TITLE WAS PREJUDICIAL
ERROR.  IT HELD THAT WITHOUT THIS IMPROPERLY ADMITTED EVIDENCE
PETITIONER'S PROOF WAS NOT SUFFICIENT TO SUBMIT THE QUESTION OF TITLE
TO THE JURY.  THAT COURT ALSO HELD THAT PETITIONER'S EVIDENCE SHOWING
POSSESSION WAS INSUFFICIENT TO GO TO THE JURY.  IT THEREFORE REVERSED
THE CASE.  BUT INSTEAD OF REMANDING IT TO THE DISTRICT COURT FOR A NEW
TRIAL, THE CIRCUIT COURT OF APPEALS DIRECTED THAT JUDGMENT BE ENTERED
FOR RESPONDENT.  153 F.2D 576.  THAT COURT HAS THUS CONSTRUED RULE
50(B) AS AUTHORIZING AN APPELLATE COURT TO DIRECT A JUDGMENT
NOTWITHSTANDING THE VERDICT, EVEN THOUGH NO MOTION FOR SUCH A JUDGMENT
HAD BEEN MADE IN THE DISTRICT COURT WITHIN TEN DAYS AFTER THE JURY'S
DISCHARGE. 

THE PETITION FOR CERTIORARI CHALLENGED THE POWER OF AN APPELLATE
COURT TO DIRECT ENTRY OF A JUDGMENT NOTWITHSTANDING THE VERDICT WHERE
TIMELY MOTION FOR SUCH A JUDGMENT HAD NOT BEEN MADE IN THE DISTRICT
COURT.  ON THREE PREVIOUS OCCASIONS WE HAVE GRANTED CERTIORARI TO
CONSIDER THIS POINT BUT FAILED TO REACH IT BECAUSE, UPON EXAMINATION OF
THE EVIDENCE, WE FOUND IT SUFFICIENT TO JUSTIFY SUBMISSION OF ALL THREE
CASES TO THE JURY.  CONWAY V. O'BRIEN, 312 U.S. 492; BERRY V. UNITED
STATES, 312 U.S. 450; HALLIDAY V. UNITED STATES, 315 U.S. 94.  IN THIS
CASE WE GRANTED CERTIORARI "LIMITED TO THE QUESTIONS OF FEDERAL
PROCEDURE RAISED BY THE PETITION FOR THE WRIT."  329 U.S. 701.  THE
POINT WE HAD IN MIND WAS WHETHER A PARTY'S FAILURE TO MAKE A MOTION IN
THE DISTRICT COURT FOR JUDGMENT NOTWITHSTANDING THE VERDICT, AS
PERMITTED IN RULE 50(B), PRECLUDES AN APPELLATE COURT FROM DIRECTING
ENTRY OF SUCH A JUDGMENT.  OTHER QUESTIONS HAVE BEEN DISCUSSED HERE,
BUT WE DO NOT CONSIDER THEM.  CONSEQUENTLY, WE ACCEPT, WITHOUT
APPROVING OR DISAPPROVING, THE CIRCUIT COURT OF APPEALS' HOLDING THAT
THERE WAS PREJUDICIAL ERROR IN THE ADMISSION OF EVIDENCE AND IN THE
SUBMISSION OF THE CASE TO THE JURY. 

RULE 50(B) CONTAINS NO LANGUAGE WHICH ABSOLUTELY REQUIRES A TRIAL
COURT TO ENTER JUDGMENT NOTWITHSTANDING THE VERDICT EVEN THOUGH THAT
COURT IS PERSUADED THAT IT ERRED IN FAILING TO DIRECT A VERDICT FOR THE
LOSING PARTY.  THE RULE PROVIDES THAT THE TRIAL COURT "MAY REOPEN THE
JUDGMENT AND EITHER ORDER A NEW TRIAL OR DIRECT THE ENTRY OF JUDGMENT
AS IF THE REQUESTED VERDICT HAD BEEN DIRECTED."  THIS "EITHER-OR"
LANGUAGE MEANS WHAT IT SEEMS TO MEAN, NAMELY, THAT THERE ARE
CIRCUMSTANCES WHICH MIGHT LEAD THE TRIAL COURT TO BELIEVE THAT A NEW
TRIAL RATHER THAN A FINAL TERMINATION OF THE TRIAL STAGE OF THE
CONTROVERSY WOULD BETTER SERVE THE ENDS OF JUSTICE.  IN SHORT, THE RULE
DOES NOT COMPEL A TRIAL JUDGE TO ENTER A JUDGMENT NOTWITHSTANDING THE
VERDICT INSTEAD OF ORDERING A NEW TRIAL; IT PERMITS HIM TO EXERCISE A
DISCRETION TO CHOOSE BETWEEN THE TWO ALTERNATIVES.  SEE BERRY V. UNITED
STATES, SUPRA, 452-453 N4.  AND HE CAN EXERCISE THIS DISCRETION WITH A
FRESH PERSONAL KNOWLEDGE OF THE ISSUES INVOLVED, THE KIND OF EVIDENCE
GIVEN, AND THE IMPRESSION MADE BY WITNESSES.  HIS APPRAISAL OF THE BONA
FIDES OF THE CLAIMS ASSERTED BY THE LITIGANTS IS OF GREAT VALUE IN
REACHING A CONCLUSION AS TO WHETHER A NEW TRIAL SHOULD BE GRANTED. 
DETERMINATION OF WHETHER A NEW TRIAL SHOULD BE GRANTED OR A JUDGMENT
ENTERED UNDER RULE 50(B) CALLS FOR THE JUDGMENT IN THE FIRST INSTANCE
OF THE JUDGE WHO SAW AND HEARD THE WITNESSES AND HAS THE FEEL OF THE
CASE WHICH NO APPELLATE PRINTED TRANSCRIPT CAN IMPART.  SEE MARCH V.
PHILADELPHIA & WEST CHESTER TRACTION CO., 285 PA. 413, 418, 132 A. 355,
357; BUNN V. FURSTEIN, 153 PA. SUPER.  637, 638, 34 A.2D 924.  SEE ALSO
YUTTERMAN V. STERNBERG, 86 F.2D 321, 324.  EXERCISE OF THIS DISCRETION
PRESENTS TO THE TRIAL JUDGE AN OPPORTUNITY, AFTER ALL HIS RULINGS HAVE
BEEN MADE AND ALL THE EVIDENCE HAS BEEN EVALUATED, TO VIEW THE
PROCEEDINGS IN A PERSPECTIVE PECULIARLY AVAILABLE TO HIM ALONE.  HE IS
THUS AFFORDED "A LAST CHANCE TO CORRECT HIS OWN ERRORS WITHOUT THE
DELAY, EXPENSE OR OTHER HARDSHIPS OF AN APPEAL."  SEE GREER V.
CARPENTER, 323 MO. 878, 882, 19 S.W.2D 1046, 1047.  CF. UNITED STATES
V. JOHNSON, 327 U.S. 106, 112. 

THERE ARE OTHER PRACTICAL REASONS WHY A LITIGANT SHOULD NOT HAVE HIS
RIGHT TO A NEW TRIAL FORECLOSED WITHOUT HAVING HAD THE BENEFIT OF THE
TRIAL COURT'S JUDGMENT ON THE QUESTION.  TAKE THE CASE WHERE A TRIAL
COURT IS ABOUT TO DIRECT A VERDICT BECAUSE OF FAILURE OF PROOF IN A
CERTAIN ASPECT OF THE CASE.  AT THAT TIME A LITIGANT MIGHT KNOW OR HAVE
REASON TO BELIEVE THAT HE COULD FILL THE CRUCIAL GAP IN THE EVIDENCE. 
TRADITIONALLY, A PLAINTIFF IN SUCH A DILEMMA HAS HAD AN UNQUALIFIED
RIGHT, UPON PAYMENTS OF COSTS, TO TAKE A NONSUIT IN ORDER TO FILE A NEW
ACTION AFTER FURTHER PREPARATION, UNLESS THE DEFENDANT WOULD SUFFER
SOME PLAIN LEGAL PREJUDICE OTHER THAN THE MERE PROSPECT OF A SECOND
LAWSUIT.  PLEASANTS V. FANT, 22 WALL.  116, 122; JONES V. S.E.C., 298
U.S. 1, 19-20 AND CASES CITED.  RULE 41(A)(1) PRESERVES THIS
UNQUALIFIED RIGHT OF THE PLAINTIFF TO A DISMISSAL WITHOUT PREJUDICE
PRIOR TO THE FILING OF DEFENDANT'S ANSWER.  AND AFTER THE FILING OF AN
ANSWER, RULE 41(A)(2) STILL PERMITS A TRIAL COURT TO GRANT A DISMISSAL
WITHOUT PREJUDICE "UPON SUCH TERMS AND CONDITIONS AS THE COURT DEEMS
PROPER."  FN5 

IN THIS CASE HAD RESPONDENTS MADE A TIMELY MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT, THE PETITIONER COULD HAVE EITHER PRESENTED
REASONS TO SHOW WHY HE SHOULD HAVE A NEW TRIAL, OR AT LEAST ASKED THE
COURT FOR PERMISSION TO DISMISS.  IF SATISFIED FROM THE KNOWLEDGE
ACQUIRED FROM THE TRIAL AND BECAUSE OF THE REASONS URGED THAT THE ENDS
OF JUSTICE WOULD BEST BE SERVED BY ALLOWING PETITIONER ANOTHER CHANCE,
THE JUDGE COULD HAVE SO PROVIDED IN HIS DISCRETION.  THE RESPONDENT
FAILED TO SUBMIT A MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT TO
THE TRIAL JUDGE IN ORDER THAT HE MIGHT EXERCISE HIS DISCRETIONARY POWER
TO DETERMINE WHETHER THERE SHOULD BE SUCH A JUDGMENT, A DISMISSAL OR A
NEW TRIAL.  IN THE ABSENCE OF SUCH A MOTION, WE THINK THE APPELLATE
COURT WAS WITHOUT POWER TO DIRECT THE DISTRICT COURT TO ENTER JUDGMENT
CONTRARY TO THE ONE IT HAD PERMITTED TO STAND. 

IT HAS BEEN SUGGESTED THAT THE PETITIONER COULD HAVE PRESENTED
AFFIDAVITS TO THE CIRCUIT COURT OF APPEALS TO SUPPORT HIS CLAIM FOR A
NEW TRIAL, AND THAT THAT COURT COULD THEREUPON HAVE REMANDED THE
QUESTION TO THE DISTRICT COURT TO PASS UPON IT.  FN6  SUCH A CIRCUITOUS
METHOD OF DETERMINING THE QUESTION CANNOT BE APPROVED.  FOR RULE 50(B)
SPECIFICALLY PRESCRIBES A PERIOD OF TEN DAYS FOR MAKING A MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT.  YET THE METHOD HERE SUGGESTED
WOULD ENABLE LITIGANTS TO EXTEND INDEFINITELY THE PRESCRIBED TEN-DAY
PERIOD SIMPLY BY ADOPTION OF THE EXPEDIENT OF AN APPEAL.  FURTHERMORE,
IT WOULD PRESENT THE QUESTION INITIALLY TO THE APPELLATE COURT WHEN THE
PRIMARY DISCRETIONARY RESPONSIBILITY FOR ITS DECISION RESTS ON THE
DISTRICT COURT.  REVERSED. 

FN1  UNDER GOVERNING SOUTH CAROLINA LAW AN ACTION SUCH AS THIS IS NOT
ONE TO TRY TITLE BUT "TO RECOVER DAMAGES FOR TRESPASS TO PROPERTY OF
WHICH THE PLAINTIFF WAS IN POSSESSION."  MACEDONIA BAPTIST CHURCH V.
COLUMBIA, 195 S.C. 59, 70, 10 S.E.2D 350, 355.  BUT POSSESSION MAY BE
PRESUMED FROM PROOF OF LEGAL TITLE.  BEAUFORT LAND & INVESTMENT CO. V.
NEW RIVER LUMBER CO., 86 S.C. 358, 68 S.E. 637; HAITHCOCK V. HAITHCOCK,
123 S.C. 61, 115 S.E. 727; CODE OF LAWS OF SOUTH CAROLINA (1942) SEC.
377.  PETITIONER HERE UNDERTOOK TO PROVE POSSESSION BOTH BY SHOWING
THAT HE HAD LEGAL TITLE AND BY SHOWING THAT HE HAD OPENLY AND
NOTORIOUSLY EXERCISED ACTS OF DOMINION, POSSESSION, AND OWNERSHIP OVER
A LONG PERIOD OF YEARS. 

FN2  RESPONDENT FIRST MOVED TO DISMISS THE CASE ON THE SAME GROUNDS
UNDER RULE 41(B) OF THE RULES OF CIVIL PROCEDURE.  THAT RULE PROVIDES
FOR A DISMISSAL, UNDER THE CIRCUMSTANCES AND CONDITIONS THERE SET OUT,
WHERE "UPON THE FACTS AND THE LAW THE PLAINTIFF HAS SHOWN NO RIGHT TO
RELIEF."  SINCE SUBSTANTIALLY THE SAME DISPOSITION OF THE CASE ON THE
SAME GROUNDS WAS LATER REQUESTED BY RESPONDENT IN THE MOTION FOR A
DIRECTED VERDICT, WE SHALL HAVE NO OCCASION FURTHER TO DISCUSS THE
MOTION TO DISMISS. 

FN3  50(B) "RESERVATION OF DECISION ON MOTION.  WHENEVER A MOTION FOR
A DIRECTED VERDICT MADE AT THE CLOSE OF ALL THE EVIDENCE IS DENIED OR
FOR ANY REASON IS NOT GRANTED, THE COURT IS DEEMED TO HAVE SUBMITTED
THE ACTION TO THE JURY SUBJECT TO A LATER DETERMINATION OF THE LEGAL
QUESTIONS RAISED BY THE MOTION.  WITHIN 10 DAYS AFTER THE RECEPTION OF
A VERDICT, A PARTY WHO HAS MOVED FOR A DIRECTED VERDICT MAY MOVE TO
HAVE THE VERDICT AND ANY JUDGMENT ENTERED THEREON SET ASIDE AND TO HAVE
JUDGMENT ENTERED IN ACCORDANCE WITH HIS MOTION FOR A DIRECTED VERDICT
...  A MOTION FOR A NEW TRIAL MAY BE JOINED WITH THIS MOTION, OR A NEW
TRIAL MAY BE PRAYED FOR IN THE ALTERNATIVE.  IF A VERDICT WAS RETURNED
THE COURT MAY ALLOW THE JUDGMENT TO STAND OR MAY REOPEN THE JUDGMENT
AND EITHER ORDER A NEW TRIAL OR DIRECT THE ENTRY OF JUDGMENT AS IF THE
REQUESTED VERDICT HAD BEEN DIRECTED.  IF NO VERDICT WAS RETURNED THE
COURT MAY DIRECT THE ENTRY OF JUDGMENT AS IF THE REQUESTED VERDICT HAD
BEEN DIRECTED OR MAY ORDER A NEW TRIAL." 

FN4  THE ADVISORY COMMITTEE ON RULES FOR CIVIL PROCEDURE IN
COMMENTING ON RULE 50(B) STATED THAT "A TRIAL COURT OR AN APPELLATE
COURT IN SETTING ASIDE A VERDICT ALWAYS HAS DISCRETION, IF JUSTICE
REQUIRES IT, TO ORDER A NEW TRIAL, INSTEAD OF DIRECTING THE ENTRY OF
JUDGMENT.  RULE 50(B) STATES THAT THE COURT ON A MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT 'MAY EITHER ORDER A NEW TRIAL OR DIRECT THE
ENTRY OF JUDGMENT' FOR THE MOVING PARTY."  REPORT OF PROPOSED
AMENDMENTS TO RULES OF CIVIL PROCEDURE (1946) 66.  SEE ALSO NEW YORK
SYMPOSIUM ON FEDERAL RULES (1938) 283-284.  COMPARE MARCH V.
PHILADELPHIA & WEST CHESTER TRACTION CO., 285 PA. 413, 132 A. 355;
NADEAU V. MARYLAND CASUALTY CO., 170 MINN. 326, 331, 212 N.W. 595, 597;
ANDERSON V. NEWSOME, 193 MINN. 157, 258 N.W. 157; PORSMER V. DAVIS, 152
MINN. 181, 188 N.W. 279; JACKSON V. HANSARD, 45 WYO. 201, 218, 17 P.2D
659, 664. 

FN5  RULE 41(A)(2), FEDERAL RULES OF CIVIL PROCEDURE, HAS BEEN
INTERPRETED AS AUTHORIZING A PLAINTIFF TO DISMISS HIS ACTION "WITHOUT
PREJUDICE WHERE THE COURT BELIEVES THAT ALTHOUGH THERE IS A TECHNICAL
FAILURE OF PROOF THERE IS NEVERTHELESS A MERITORIOUS CLAIM."  REPORT OF
PROPOSED AMENDMENTS TO RULES OF CIVIL PROCEDURE (1946) 64; SEE UNITED
STATES V. LYMAN, 125 F.2D 67; 138 F.2D 509; HOME OWNERS' LOAN
CORPORATION V. HUFFMAN, 134 F.2D 314, 317. 

FN6  THIS GENERAL SUGGESTION WAS MADE BY THE ADVISORY COMMITTEE ON
RULES FOR CIVIL PROCEDURE IN ITS RECENT RECOMMENDATION TO US FOR
MODIFICATION OF RULE 50(B).  THE COMMITTEE SAID:  "EVEN ON APPEAL, IF
THE APPELLATE COURT SETS ASIDE HIS VERDICT, HE MAY PRESENT TO THE
APPELLATE COURT AFFIDAVITS TO SUPPORT HIS CLAIM TO A NEW TRIAL, AND THE
APPELLATE COURT HAS POWER TO RECEIVE THE AFFIDAVITS AND REMAND THE CASE
TO THE TRIAL COURT WITH INSTRUCTIONS TO CONSIDER THE AFFIDAVITS AND
DETERMINE WHETHER A NEW TRIAL SHOULD BE ALLOWED."  REPORT OF PROPOSED
AMENDMENTS, SUPRA, 66. 
..END :
























LABOR BOARD V. DONNELLY CO., 330 U.S. 219 


ARGUED OCTOBER 16, 1946.  - DECIDED MARCH 3, 1947.  - 151 F.2D 854,
REVERSED. 


BEFORE THE NATIONAL LABOR RELATIONS BOARD A UNION CHARGED AN EMPLOYER
WITH UNFAIR LABOR PRACTICES, INCLUDING THE FORMATION AND DOMINATION OF
A PLANT UNION TO FORESTALL THE EFFORTS OF THE COMPLAINING UNION TO
ORGANIZE THE EMPLOYEES.  THE TRIAL EXAMINER REJECTED AN OFFER BY THE
EMPLOYER TO PROVE THROUGH THE TESTIMONY OF 1,200 EMPLOYEES THAT THEY
HAD NOT BEEN COERCED TO JOIN THE PLANT UNION AND EXCLUDED EVIDENCE THAT
THE FORMATION OF THE PLANT UNION FOLLOWED STRIKE THREATS AND VIOLENCE
BY THE COMPLAINING UNION AGAINST OTHER PLANTS.  THE BOARD ORDERED
DISESTABLISHMENT OF THE PLANT UNION.  THE CIRCUIT COURT OF APPEALS
FOUND NO BASIS FOR SETTING ASIDE THE PROCEEDINGS AS UNFAIR ON THE
GROUND THAT EITHER THE EXAMINER OR THE BOARD WAS BIASED, HELD THAT THE
BOARD PROPERLY LIMITED THE EVIDENCE TO ISSUES RAISED BY THE COMPLAINT,
AND FOUND NO IMPROPRIETY IN THE EXCLUSION OF EVIDENCE OFFERED TO PROVE
MISCONDUCT ON THE PART OF THE COMPLAINING UNION.  HOWEVER, IT FOUND
THAT THE EMPLOYER HAD BEEN DENIED A FAIR HEARING IN NOT BEING ALLOWED
TO PRESENT TESTIMONY OF ITS EMPLOYEES THAT THE PLANT UNION WAS TRULY
INDEPENDENT AND THAT THEY HAD JOINED IT VOLUNTARILY.  ACCORDINGLY, IT
DENIED ENFORCEMENT OF THE ORDER AND REMANDED THE CASE TO THE BOARD "FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT." 
THE BOARD DENIED THE EMPLOYER'S APPLICATION FOR A NEW EXAMINER AND
ASSIGNED THE CASE TO THE ORIGINAL EXAMINER FOR FURTHER HEARING.  THIS
TIME THE EXAMINER HEARD ELEVEN OF THE 1,200 EMPLOYEES NAMED IN THE
OFFER OF PROOF REJECTED IN THE EARLIER PROCEEDING AND ALLOWED THE
PRESIDENT OF THE EMPLOYER CORPORATION TO TESTIFY FULLY; BUT EXCLUDED
ALL EVIDENCE OF EVENTS SUBSEQUENT TO THE TERMINATION OF THE FIRST
HEARING.  UPON FINDINGS AND RECOMMENDATIONS SUBSTANTIALLY THE SAME AS
PREVIOUSLY MADE, THE BOARD ISSUED VIRTUALLY THE SAME ORDER.  THE
CIRCUIT COURT OF APPEALS DENIED ENFORCEMENT "FOR WANT OF DUE PROCESS IN
THE PROCEEDINGS UPON WHICH THE ORDER IS BASED."  HELD: 

1.  UPON THE RECORD, THERE WAS NO WANT OF DUE PROCESS IN THE BOARD'S
PROCEEDINGS.  PP. 225-238. 

2.  IN VIEW OF THE NATURE OF THE ADMINISTRATIVE PROCESS WITH WHICH
THE BOARD IS ENTRUSTED AND IN THE LIGHT OF THE STATEMENT IN THE COURT'S
OPINION IN THE FIRST REVIEW THAT "THE LEAST THAT THE BOARD CAN DO  ...
IS  ...  TO ACCORD THE PETITIONERS AN OPPORTUNITY TO INTRODUCE ALL OF
THE COMPETENT AND MATERIAL EVIDENCE WHICH WAS REJECTED BY THE TRIAL
EXAMINER; AND TO RECEIVE AND CONSIDER SUCH EVIDENCE TOGETHER WITH ALL
OTHER COMPETENT AND MATERIAL EVIDENCE IN THE RECORD BEFORE MAKING NEW
FINDINGS AND A NEW ORDER," THE REMAND ON THE FIRST REVIEW DID NOT
REQUIRE A PROCEEDING DE NOVO BEFORE THE BOARD NOR A REHEARING ON ISSUES
AS TO WHICH THE ORIGINAL HEARING WAS ADEQUATE.  PP. 225-228. 

3.  UPON EXAMINATION OF THE WHOLE RECORD, IT CAN NOT BE SAID THAT THE
BOARD DISREGARDED THE RULING OF THE CIRCUIT COURT OF APPEALS THAT THE
BOARD SHOULD CONSIDER TESTIMONY OF EMPLOYEES TO THE EFFECT THAT THEY
VOLUNTARILY ORGANIZED AND JOINED THE PLANT UNION AND THAT THE UNION'S
AFFAIRS WERE UNINFLUENCED BY THE EMPLOYER.  PP. 222-231. 

4.  DISCRIMINATORY TREATMENT BY THE BOARD IS NOT ESTABLISHED BY THE
FACT THAT EVIDENCE AS TO THE EFFECT OF VIOLENCE BY AN OUTSIDE UNION ON
THE FORMATION OF THE PLANT UNION WAS LIMITED TO EVENTS WITHIN SIX
MONTHS OF THE FORMATION OF THE PLANT UNION, WHEREAS EVIDENCE OF
COERCION BY THE EMPLOYER IN THE FORMATION OF THE PLANT UNION WAS
ADMITTED THOUGH RELATED TO A PERIOD TWO YEARS PRIOR TO THE FORMATION OF
THE PLANT UNION.  PP. 231-232. 

5.  THE BOARD WAS NOT BOUND ON THE SECOND HEARING TO ADMIT EVIDENCE
OF THE COMPLAINING UNION'S MISCONDUCT, INASMUCH AS THERE ALREADY WAS
EVIDENCE IN THE RECORD TO APPRISE THE BOARD OF ALLEGED MISCONDUCT BY
THE COMPLAINING UNION IF ON THAT SCORE THE BOARD CHOSE NOT TO ENTERTAIN
CHARGES OF UNFAIR LABOR PRACTICES AGAINST THE EMPLOYER.  LABOR BOARD V.
INDIANA & MICHIGAN ELECTRIC CO., 318 U.S. 9, DISTINGUISHED.  PP. 233
236. 

6.  THE POWER OF THE CIRCUIT COURT OF APPEALS UNDER SEC. 10(E) TO
REQUIRE THE BOARD TO TAKE ADDITIONAL EVIDENCE CAN NOT BE EMPLOYED TO
ENLARGE THE STATUTORY SCOPE OF JUDICIAL REVIEW.  PP. 234-235. 

7.  THE BOARD'S DENIAL OF THE EMPLOYER'S APPLICATION FOR THE
DESIGNATION OF A NEW EXAMINER FOR THE HEARING ON THE REMAND WAS NOT
IMPROPER.  PP. 236-237. 

8.  THE CIRCUIT COURT OF APPEALS NOT HAVING CONSIDERED THE QUESTION
OF THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN THE FINDINGS ON WHICH THE
ORDER OF THE BOARD WAS BASED, THE CASE IS REMANDED TO THAT COURT FOR
DETERMINATION OF THIS ISSUE.  PP. 237-238. 

NATIONAL LABOR RELATIONS BOARD V. DONNELLY GARMENT CO. ET AL. 

NO. 38.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT* . 

*TOGETHER WITH NO. 39, INTERNATIONAL LADIES' GARMENT WORKERS' UNION
V. DONNELLY GARMENT CO. ET AL., ALSO ON CERTIORARI TO THE SAME COURT. 

A CEASE-AND-DESIST ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 21
N.L.R.B. 164, AGAINST AN EMPLOYER WAS DENIED ENFORCEMENT BY THE CIRCUIT
COURT OF APPEALS, WHICH REMANDED THE CASE TO THE BOARD.  123 F.2D 215. 
A SECOND ORDER OF THE BOARD, ISSUED AFTER A FURTHER HEARING, 50
N.L.R.B. 241, WAS ALSO DENIED ENFORCEMENT.  151 F.2D 854.  ON PETITIONS
OF THE BOARD AND THE COMPLAINING UNION, THIS COURT GRANTED CERTIORARI. 
327 U.S. 775.  REVERSED AND REMANDED, P. 238. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON MARCH 6, 1940, THE NATIONAL LABOR RELATIONS BOARD, ON FINDING THAT
THE DONNELLY GARMENT COMPANY HAD ENGAGED IN LABOR PRACTICES CONDEMNED
AS "UNFAIR" BY THE WAGNER ACT, ISSUED AN ORDER AGAINST THE COMPANY "TO
EFFECTUATE THE POLICIES" OF THE ACT.  THE CIRCUIT COURT OF APPEALS FOR
THE EIGHTH CIRCUIT DENIED ENFORCEMENT OF THE ORDER AND REMANDED THE
CASE TO THE BOARD.  123 F.2D 215.  AFTER CARRYING OUT WHAT IT CONCEIVED
TO BE THE DIRECTIONS OF THE COURT, THE BOARD AGAIN FOUND AGAINST THE
COMPANY.  THE COURT BELOW DENIED ENFORCEMENT OF THE BOARD'S SECOND
ORDER "FOR WANT OF DUE PROCESS IN THE PROCEEDINGS UPON WHICH THE ORDER
IS BASED."  151 F.2D 854, 875.  THE CORRECTNESS OF THIS RULING IS NOW
BEFORE US, FOR WE BROUGHT THE CASE HERE, 327 U.S. 775, TO RULE ON
IMPORTANT ISSUES IN THE ADMINISTRATION OF THE WAGNER ACT.  THIS
PROTRACTED LITIGATION HAS GIVEN RISE TO A SWARM OF QUESTIONS.  IN VIEW
OF THE FACT THAT THE CASE COMES TO US AFTER IT HAS BEEN TWICE BEFORE
THE BOARD AND THREE TIMES BEFORE THE COURT BELOW, ON A RECORD OF
THIRTEEN VOLUMES WITH A TOTAL OF MORE THAN 5000 PAGES, EVEN AN EARNEST
ATTEMPT AT COMPACTNESS CANNOT AVOID A SOMEWHAT EXTENDED OPINION. 

THE CASE PRESENTS LIMITED LEGAL PHASES OF ONE OF THOSE BITTER,
UNEDIFYING CONFLICTS WITH WHICH AMERICAN INDUSTRIAL HISTORY IS
UNFORTUNATELY REPLETE.  FOR OTHER LITIGATION GROWING OUT OF THIS
STRIFE, SEE 20 F.SUPP.  767; 21 'F.SUPP.  807; 304 U.S. 243; 23
F.SUPP.  998; 99 F.2D 309; 119 F.2D 892; 121 F.2D 561; 47 F.SUPP.  61;
47 F.SUPP.  65; 47 F.SUPP.  67; 55 F.SUPP.  572; 55 F.SUPP.  587; 147
F.2D 246; 154 F.2D 38.  IT HAS ITS ROOTS IN A CAMPAIGN BY THE
INTERNATIONAL LADIES' GARMENT WORKERS' UNION (HEREAFTER DESIGNATED AS
INTERNATIONAL) TO UNIONIZE THE WOMEN'S GARMENT INDUSTRY IN KANSAS CITY,
MISSOURI.  BECAUSE OF ITS IMPORTANCE, THE DONNELLY GARMENT COMPANY (TO
BE CALLED COMPANY FOR SHORT) BECAME THE PARTICULAR TARGET OF THESE
UNIONIZING EFFORTS.  THESE CONTINUED WITH VARYING INTENSITY OVER A
PERIOD OF YEARS BUT MET WITH LITTLE SUCCESS AMONG THE COMPANY'S
EMPLOYEES. 

IN 1938, INTERNATIONAL BEGAN PROCEEDINGS BEFORE THE BOARD CHARGING
THE COMPANY WITH A SERIES OF UNFAIR LABOR PRACTICES IN VIOLATION OF
SEC. 8(1), (2), (3) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449,
29 U.S.C. SECS. 151 ET SEQ. THE MAIN CHARGE WAS THAT THE COMPANY, TO
COUNTERACT THE EFFORTS OF INTERNATIONAL, HAD STIMULATED THE FORMATION
OF A PLANT UNION, THE DONNELLY GARMENT WORKERS' UNION (HEREAFTER CALLED
UNION) AND HAD DOMINATED IT THROUGH FINANCIAL AND OTHER AID.  FOLLOWING
THE USUAL PROCEDURE THERE WAS A HEARING BEFORE A TRIAL EXAMINER.  AT
THE HEARING, THE EXAMINER REJECTED AN OFFER BY THE COMPANY TO PROVE,
THROUGH THE TESTIMONY OF 1200 EMPLOYEES, THAT THEY HAD NOT BEEN COERCED
BY THE COMPANY TO JOIN UNION, BUT THAT EACH OF THEM HAD DONE SO OF HIS
OWN FREE WILL, AND THAT THEY HAD NO KNOWLEDGE OF COMPANY INFLUENCE IN
THE AFFAIRS OF UNION.  THE EXAMINER ALSO EXCLUDED EVIDENCE TO SHOW THAT
THE FORMATION OF THE UNION FOLLOWED STRIKE THREATS AND VIOLENCE BY
INTERNATIONAL, SUCCESSFUL AGAINST SMALLER COMPETITORS OF THE COMPANY,
TO COERCE THE COMPANY INTO A CLOSED-SHOP AGREEMENT WITH INTERNATIONAL. 
TO THESE AND OTHER LESS IMPORTANT EXCLUSIONS THE COMPANY DULY EXCEPTED
ON THE SUBMISSION OF THE TRIAL EXAMINER'S INTERMEDIATE REPORT.  THE
BOARD UPHELD THE EXAMINER'S RULINGS ON EVIDENCE, ACCEPTED HIS FINDINGS
OF FACT, AND, WITH A QUALIFICATION NOT HERE RELEVANT, ADOPTED HIS
RECOMMENDATIONS.  THEREUPON IT ISSUED THE USUAL CEASE-AND-DESIST ORDER,
AND DIRECTED THE DISESTABLISHMENT OF UNION AND REIMBURSEMENT TO
EMPLOYEES OF THE AMOUNT OF THE DUES WHICH THE COMPANY HAD CHECKED OFF
ON BEHALF OF UNION (21 N.L.R.B. 164). 

REVIEW OF THIS ORDER CAME BEFORE THE CIRCUIT COURT OF APPEALS ON THE
COMPANY'S PETITION TO SET IT ASIDE AND ON THE BOARD'S CROSS-PETITION
FOR ITS ENFORCEMENT.  ON SEVERAL CONTENTIONS, THE DISPOSITION OF WHICH
IS RELEVANT TO THE QUESTIONS NOW CALLING FOR DECISION, THE COURT
SUSTAINED THE BOARD.  IT FOUND NO BASIS FOR SETTING ASIDE THE
PROCEEDINGS AS UNFAIR ON THE CLAIM THAT EITHER THE EXAMINER OR THE
BOARD WAS BIASED.  IT HELD THAT THE BOARD PROPERLY LIMITED THE EVIDENCE
TO ISSUES RAISED BY THE COMPLAINT, AND SINCE INTERNATIONAL WAS NOT ON
TRIAL IT FOUND NO IMPROPRIETY IN THE EXCLUSION OF EVIDENCE OFFERED TO
PROVE ITS MISCONDUCT.  THE COURT DID HOWEVER FIND THAT THE COMPANY HAD
BEEN DENIED A FAIR HEARING IN NOT BEING ALLOWED TO PRESENT THE
TESTIMONY OF ITS EMPLOYEES TO THE EFFECT THAT UNION WAS TRULY
INDEPENDENT AND THAT THEY HAD JOINED IT VOLUNTARILY.  THE COURT
REMANDED THE CASE TO THE BOARD "FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THE OPINION OF THIS COURT." 

THE BOARD THEREUPON SET THE CASE FOR A SECOND HEARING BEFORE THE
ORIGINAL EXAMINER.  INSISTING THAT HE WAS BIASED AND HAD PREJUDGED AS
VALUELESS "THE EVIDENCE TO BE ADDUCED AT THE PENDING HEARING," THE
COMPANY MOVED FOR A NEW TRIAL EXAMINER.  THE BOARD DENIED THE
APPLICATION AND THE CASE PROCEEDED TO HEARING.  THIS TIME THE EXAMINER
HEARD ELEVEN OF THE 1200 EMPLOYEES NAMED IN THE OFFER OF PROOF REJECTED
IN THE EARLIER PROCEEDING, BUT DECLINED TO HEAR THE REST ON THE GROUND
THAT THEIR TESTIMONY WOULD BE MERELY CUMULATIVE.  HE ALLOWED THE
PRESIDENT OF THE COMPANY, WHOM ILLNESS HAD KEPT FROM THE EARLIER
HEARING, TO TESTIFY FULLY.  OTHERWISE, HE RECEIVED NO EVIDENCE THAT HAD
BEEN AVAILABLE BUT WAS NOT OFFERED AT THE EARLIER PROCEEDING, AND
EXCLUDED ALL EVIDENCE OF EVENTS SUBSEQUENT TO THE TERMINATION OF THE
FIRST HEARING.  THE EXAMINER'S FINDINGS AND RECOMMENDATIONS, IN
RESPECTS HERE MATERIAL, WERE SUBSTANTIALLY THE SAME AS THOSE HE HAD
PREVIOUSLY MADE, AND THE BOARD, ACTING UPON HIS INTERMEDIATE REPORT,
ISSUED VIRTUALLY THE SAME ORDER.  50 N.L.R.B. 241.  THE COMPANY AGAIN
PETITIONED THE CIRCUIT COURT OF APPEALS TO SET ASIDE THE ORDER, AND THE
BOARD AGAIN REQUESTED ITS ENFORCEMENT.  DURING THE PENDENCY OF THESE
PROCEEDINGS, THE COMPANY INVOKED SEC. 10(E) OF THE WAGNER ACT AND ASKED
THE COURT LEAVE TO ADDUCE BEFORE THE BOARD EVIDENCE WHICH IT CLAIMED
HAD BEEN ERRONEOUSLY EXCLUDED.  THIS MOTION WAS NOT GRANTED.  INSTEAD,
AS ALREADY NOTED, THE COURT DENIED THE BOARD'S PETITION FOR ENFORCEMENT
"FOR WANT OF DUE PROCESS IN THE PROCEEDINGS UPON WHICH THE ORDER IS
BASED."  151 F.2D 854, 875.  THE COURT SET FORTH ITS VIEWS IN A CAREFUL
OPINION OF MORE THAN THIRTY PAGES IN THE PRINTED RECORD.  THERE WAS
ALSO A CONCURRING OPINION, AND A DISSENT. 

THE COURT CANVASSED MANY ITEMS OF EVIDENCE.  AS TO SOME OF THE
BOARD'S RULINGS WHICH IT DISAPPROVED, THE COURT STATED EXPLICITLY THAT
BY THEMSELVES THEY WOULD NOT HAVE AFFORDED SUFFICIENT GROUND FOR
REVERSAL.  RULINGS WHICH INDIVIDUALLY WOULD NOT INVALIDATE AN ORDER OF
THE BOARD DO NOT IN COMBINATION ACQUIRE THE NECESSARY STRENGTH TO UNDO
WHAT THE BOARD, ACTING UNDER AUTHORITY GIVEN IT BY CONGRESS, HAS DONE. 
WE DO NOT FIND THAT IN THEIR COMBINATION THESE RULINGS AMOUNTED TO
UNFAIRNESS.  WE MUST THEREFORE CONSIDER ONE BY ONE THOSE OBJECTIONS
WHICH THE COURT DEEMED SUFFICIENT TO VITIATE THE BOARD'S ORDER.  FOR
THE COURT BELOW DID NOT SUGGEST THAT THE BOARD AS A TRIBUNAL WAS SO
BIASED AS TO BE INCAPABLE OF FAIR JUDGMENT IN THIS CASE.  IT FOUND THAT
SUCH A FINDING AGAINST THE BOARD WAS NOT JUSTIFIED. 

FIRST.  THE CONTROLLING BASIS OF THE COURT'S FINDING OF UNFAIRNESS IN
THE BOARD PROCEEDINGS RELATED TO TESTIMONY PROFFERED BY THE COMPANY AT
THE SECOND HEARING BEFORE THE EXAMINER.  THIS SECOND HEARING WAS NOT A
NEW PROCEEDING.  IT WAS A STAGE IN A PROCESS CONSISTING OF THE FIRST
PROCEEDING BEFORE THE BOARD, THE REMAND RESULTING FROM REVIEW OF THE
BOARD'S ORDER IN THE CIRCUIT COURT OF APPEALS, AND THE SECOND
PROCEEDING BEFORE THE BOARD IN RESPONSE TO THIS REMAND.  THE
CORRECTNESS OF THE COURT'S JUDGMENT REFUSING ENFORCEMENT OF THE BOARD'S
SECOND ORDER MUST BE JUDGED IN THE LIGHT OF THE INTERRELATION OF THE
TWO PROCEEDINGS BEFORE THE BOARD, AND THE BOARD'S JUSTIFIABLE
INTERPRETATION OF THE DIRECTIONS WHICH IT RECEIVED UPON REMAND OF THE
FIRST ORDER.  INDEED, THE DISPOSITION OF THE PRESENT CASE TURNS
DECISIVELY ON THE VIEW THAT IS TAKEN OF THE BOARD'S INTERPRETATION OF
ITS DUTY UNDER THE COURT'S MANDATE. 

IT BECOMES NECESSARY THEREFORE TO REVERT TO THE PRECISE TERMS OF THE
COURT'S MANDATE.  THE ORDER WAS REMANDED BY THE CIRCUIT COURT OF
APPEALS "TO SAID LABOR BOARD FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THE OPINION OF THIS COURT."  THE COURT'S OPINION YIELDS THIS GLOSS
UPON ITS MANDATE: 

"OUR CONCLUSION IS THAT THE PETITION OF THE BOARD FOR ENFORCEMENT OF
THE ORDER UNDER REVIEW MUST BE DENIED.  WE THINK THAT THE LEAST THAT
THE BOARD CAN DO, IN ORDER TO CURE THE DEFECTS IN ITS PROCEDURE CAUSED
BY THE FAILURE OF THE TRIAL EXAMINER TO RECEIVE ADMISSIBLE EVIDENCE, IS
TO VACATE THE ORDER AND THE FINDINGS AND CONCLUSIONS UPON WHICH IT IS
BASED; TO ACCORD TO THE PETITIONERS (THE COMPANY AND THE PLANT UNION)
AN OPPORTUNITY TO INTRODUCE ALL OF THE COMPETENT AND MATERIAL EVIDENCE
WHICH WAS REJECTED BY THE TRIAL EXAMINER; AND TO RECEIVE AND CONSIDER
SUCH EVIDENCE TOGETHER WITH ALL OTHER COMPETENT AND MATERIAL EVIDENCE
IN THE RECORD BEFORE MAKING NEW FINDINGS AND A NEW ORDER."  123 F.2D
215, 225. 

THE BOARD BASED ITS NEW ORDER UPON THE RECORD OF THE FIRST
PROCEEDING, REOPENING THE HEARING ONLY FOR THE PURPOSE OF ADMITTING THE
ERRONEOUSLY EXCLUDED TESTIMONY OF THE EMPLOYEES.  IN SHORT, THE BOARD
DID NOT UNDERSTAND THE REMAND TO CALL FOR A NEW TRIAL.  THE COURT, WHEN
CALLED UPON TO CONSTRUE IT FOUR YEARS LATER, TOOK A DIFFERENT VIEW OF
THE MEANING OF ITS DECISION OF NOVEMBER, 1941:  "IT IS, WE THINK,
APPARENT THAT WHAT THIS COURT, IN EFFECT, RULED WAS THAT THE COMPANY
AND THE PLANT UNION WERE ENTITLED TO A NEW TRIAL UPON THE EVIDENCE
ALREADY TAKEN AND SUCH COMPETENT AND MATERIAL EVIDENCE AS MIGHT BE
PROFFERED UPON A FURTHER HEARING."  151 F.2D 854, 856.  FROM THIS POINT
OF VIEW, THE COURT COULD READILY CONCLUDE THAT THE RECORD WHICH CAME TO
IT "PRESENTS AN INCOMPLETE PICTURE." 

WE HAVE RECOGNIZED THAT "THE COURT THAT ISSUES A MANDATE IS NORMALLY
THE BEST JUDGE OF ITS CONTENT, ON THE GENERAL THEORY THAT THE AUTHOR OF
A DOCUMENT IS ORDINARILY THE AUTHORITATIVE INTERPRETER OF ITS
PURPOSES."  BUT, WE CONTINUED, "IT IS NOT EVEN TRUE THAT A LOWER
COURT'S INTERPRETATION OF ITS MANDATE IS CONTROLLING HERE.  COMPARE
UNITED STATES V. MORGAN, 307 U.S. 183.  THEREFORE, WE WOULD NOT BE
FORECLOSED BY THE INTERPRETATION WHICH THE COURT OF APPEALS GAVE TO ITS
MANDATE, EVEN IF IT HAD BEEN DIRECTED TO A LOWER COURT."  FEDERAL
COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S. 134,
141.  HERE, AS IN THAT CASE, A MUCH DEEPER ISSUE IS INVOLVED.  AS WE
HAD OCCASION TO POINT OUT IN THE POTTSVILLE CASE, THERE ARE SIGNIFICANT
DIFFERENCES BETWEEN THE RELATIONS OF AN APPELLATE COURT TO A LOWER
COURT AND THOSE OF A COURT TO A LAW-ENFORCING AGENCY, LIKE THE BOARD,
WHOSE ORDER IS SUBJECT ONLY TO RESTRICTED JUDICIAL REVIEW.  THESE
DIFFERENCES MAY BE PARTICULARLY TELLING UPON REMAND OF AN ORDER TO THE
AGENCY.  DUE REGARD FOR THESE DIFFERENCES MUST GUIDE US THROUGH THE
MAZE OF DETAILS IN THIS CASE. 

IN THE CONTEXT OF THE OPINION REMANDING THE BOARD'S ORIGINAL ORDER
AND OF THE NATURE OF THE ADMINISTRATIVE PROCESS WITH WHICH IT IS
ENTRUSTED, THE BOARD WAS JUSTIFIED IN NOT DEEMING ITSELF UNDER DUTY TO
GRANT A "NEW TRIAL" IN THE SENSE IN WHICH A LOWER COURT MUST START ANEW
WHEN AN UPPER COURT DIRECTS SUCH A NEW TRIAL.  THERE WAS NO REFERENCE
TO A "NEW TRIAL," NOR WAS ANY INTIMATION GIVEN THAT SUCH WAS THE
BREADTH OF WHAT THE REMAND REQUIRED.  FROM THE COURT'S OPINION THERE
APPEARS ONLY A VERY RESTRICTED DISSATISFACTION WITH THE ORIGINAL
PROCEEDINGS BEFORE THE BOARD, CALLING FOR A CORRESPONDINGLY RESTRICTED
CORRECTION.  "THE LEAST THAT THE BOARD CAN DO," WROTE THE COURT, "IS
...  TO ACCORD TO THE PETITIONERS AN OPPORTUNITY TO INTRODUCE ALL OF
THE COMPETENT AND MATERIAL EVIDENCE WHICH WAS REJECTED BY THE TRIAL
EXAMINER; AND TO RECEIVE AND CONSIDER SUCH EVIDENCE TOGETHER WITH ALL
OTHER COMPETENT AND MATERIAL EVIDENCE IN THE RECORD BEFORE MAKING NEW
FINDINGS AND A NEW ORDER."  123 F.2D AT 225.  "THE LEAST THAT THE BOARD
CAN DO" MAY WELL IMPLY THAT THE BOARD IS AUTHORIZED TO DRAW ON THE WIDE
SCOPE OF ITS STATUTORY DISCRETION.  BUT TO ADVISE THE BOARD OF "THE
LEAST THAT (IT) CAN DO" DOES NOT PUT THE BOARD IN DEFAULT FOR NOT DOING
MORE.  DUE PROCESS DOES NOT AFFORD A PARTY THE RIGHT TO TREAT AS A
REHEARSAL A HEARING ON THE ISSUES FOR WHICH THE HEARING WAS ADEQUATE. 
AND THE WAGNER ACT DOES NOT REQUIRE THAT GROUND BE COVERED A SECOND
TIME OR PIECEMEAL.    SECOND.  SINCE IN OUR VIEW THE REMAND DID NOT
CALL FOR A PROCEEDING DE NOVO, THE BOARD WAS NOT REQUIRED TO RE-OPEN
ANY ISSUE AS TO WHICH ITS RULING WAS LEFT UNASSAILED BY THE CIRCUIT
COURT OF APPEALS IN ITS FIRST DECISION.  WE SHALL THEREFORE CONSIDER
THE PARTICULAR DEFECTS WHICH THE CIRCUIT COURT OF APPEALS FOUND IN THE
SECOND HEARING, BY TREATING THAT HEARING NOT AS A NEW TRIAL BUT AS THE
SEQUEL OF THE FIRST HEARING UNDER A REMAND BY THE CIRCUIT COURT OF
APPEALS FOR THE LIMITED PURPOSE OF CORRECTING THE PRIOR ERRONEOUS
EXCLUSION OF TESTIMONY. 

(1)  THE BOARD'S DECISION THAT THE COMPANY HAD ENGAGED IN UNFAIR
LABOR PRACTICES TO A LARGE EXTENT TURNED ON THE COMPANY'S RELATION TO
THE PLANT UNION.  IT IS FAIR TO INFER THAT THE LOWER COURT'S DENIAL OF
ENFORCEMENT OF THE BOARD'S ORDER WAS INFLUENCED MOST BY ITS FINDING
THAT THE TRIAL EXAMINER AND THE BOARD DID NOT COMPLY WITH THE COURT'S
MANDATE ON THE FIRST REVIEW REGARDING THE PROFFER OF TESTIMONY OF THE
COMPANY'S EMPLOYEES TO THE EFFECT THAT THEY VOLUNTARILY ORGANIZED AND
JOINED THE UNION AND THAT, TO THEIR KNOWLEDGE, ITS AFFAIRS WERE
UNINFLUENCED BY THE COMPANY.  AT THE SECOND HEARING THE EXAMINER
ADMITTED THE TESTIMONY OF ELEVEN SUCH EMPLOYEES, EXCLUDING FURTHER ORAL
TESTIMONY OF THE SAME NATURE AS MERELY CUMULATIVE.  THE COURT BELOW DID
NOT QUARREL WITH CONFINING THIS LINE OF TESTIMONY TO ELEVEN WITNESSES. 
BUT IT REACHED THE VIEW THAT NEITHER THE EXAMINER NOR THE BOARD TOOK
THIS TESTIMONY INTO ACCOUNT IN REACHING THE FINDINGS ON WHICH THE
BOARD'S SECOND ORDER WAS BASED.  IT WAS PRINCIPALLY FROM THIS THAT THE
COURT CONCLUDED THAT THE COMPANY WAS DENIED THE FULL HEARING TO SECURE
WHICH THE CASE WAS REMANDED TO THE BOARD. 

ACCORDING TO AN EARLY ENGLISH JUDGE, "THE DEVIL HIMSELF KNOWETH NOT
THE MIND OF MAN," AND A MODERN REVIEWING COURT IS NOT MUCH BETTER
EQUIPPED TO LAY BARE UNEXPOSED MENTAL PROCESSES.  IT IS A GRAVE
RESPONSIBILITY TO CONCLUDE THAT IN ADMITTING THE TESTIMONY OF THE
COMPANY'S EMPLOYEES, THE BOARD WENT THROUGH A MERE PRETENSE OF
OBEDIENCE TO THE COURT'S DIRECTION, AND HEARD THE TESTIMONY WITH A DEAF
EAR AND A CLOSED MIND.  IN LIGHT OF THE AUTHORITY WITH WHICH CONGRESS
HAS ENDOWED THE BOARD, AND WITH DUE REGARD TO THE CONSCIENTIOUSNESS
WHICH WE MUST ATTRIBUTE TO ANOTHER BRANCH OF THE GOVERNMENT, WE CANNOT
REJECT ITS EXPLICIT AVOWAL THAT IT DID TAKE INTO ACCOUNT EVIDENCE WHICH
IT SHOULD HAVE CONSIDERED UNLESS AN EXAMINATION OF THE WHOLE RECORD
PUTS ITS ACCEPTANCE BEYOND REASON.  SINCE THIS MATTER IS CRUCIAL, IT IS
APPROPRIATE TO QUOTE FULLY THE BOARD'S DECISION ON THE POINT: 

"IN REMANDING THE CASE TO THE BOARD FOR FURTHER HEARING, THE CIRCUIT
COURT DIRECTED THAT THE RESPONDENT (THE COMPANY) AND THE D.G.W.U. (THE
PLANT UNION) BE PERMITTED TO ADDUCE THE PREVIOUSLY PROFFERED TESTIMONY
OF RESPONDENT'S (THE COMPANY'S) EMPLOYEES TO SHOW, IN SUBSTANCE, THAT
THEY FORMED AND JOINED THE D.G.W.U. OF THEIR OWN FREE WILL AND THAT
THEY WERE NOT INFLUENCED, INTERFERED WITH, OR COERCED BY THE RESPONDENT
IN CHOOSING THAT ORGANIZATION AS THEIR BARGAINING REPRESENTATIVE.  IN
COMPLIANCE WITH THE COURT'S MANDATE AND PURSUANT TO THE RESPECTIVE
OFFERS OF PROOF SUBMITTED BY THE RESPONDENT AND THE D.G.W.U. AT THE
ORIGINAL HEARING, THE BOARD PERMITTED THE INTRODUCTION OF SUCH
TESTIMONY.  WE HAVE CAREFULLY CONSIDERED ALL SUCH EVIDENCE ADDUCED BY
THE RESPONDENT AND THE D.G.W.U.  WE FIND, HOWEVER, THAT THE TESTIMONY
IN QUESTION DOES NOT OVERCOME MORE POSITIVE EVIDENCE IN THE RECORD THAT
THE RESPONDENT COMMITTED ACTS OF INTERFERENCE AND ASSISTANCE IN THE
FORMATION AND ADMINISTRATION OF THE D.G.W.U. WHICH SUBJECTED THAT
ORGANIZATION TO THE RESPONDENT'S DOMINATION AND WHICH REMOVED FROM THE
EMPLOYEES' SELECTION OF THE D.G.W.U. THE COMPLETE FREEDOM OF CHOICE
WHICH THE ACT CONTEMPLATES.  SINCE WE FIND THE TESTIMONY HERE ADDUCED
TOTALLY UNPERSUASIVE THAT THE EMPLOYEES VOLUNTARILY DESIGNATED THE
D.G.W.U., WE ARE MOREOVER IMPELLED TO ADHERE TO THE OPINION, DERIVED
FROM OUR EXPERIENCE IN ADMINISTRATION OF THE ACT, THAT CONCLUSIONARY
EVIDENCE OF THIS NATURE IS IMMATERIAL TO ISSUES SUCH AS THOSE PRESENTED
IN THIS CASE.  A CONSIDERATION OF ALL THE EVIDENCE CONVINCES US, AND WE
FIND, THAT THE RESPONDENT DOMINATED AND INTERFERED WITH THE FORMATION
AND ADMINISTRATION OF THE D.G.W.U. AND CONTRIBUTED SUPPORT THERETO; AND
THAT THE RESPONDENT THEREBY INTERFERED WITH, RESTRAINED, AND COERCED
ITS EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION 7 OF
THE ACT."  50 N.L.R.B. 241. 

WE CANNOT READ THIS OTHERWISE THAN AS AN ASSURANCE BY THE BOARD THAT
IT DID NOT MERELY GO THROUGH THE MOTIONS OF ALLOWING THE TESTIMONY OF
THESE WITNESSES TO GET INTO THE RECORD AS AN EMPTY FORMALITY, BUT THAT
IT DULY HEEDED THE ORDER OF THE COURT AND REFLECTED UPON THE
TESTIMONY.  THE BOARD JUDGED OF ITS WORTH, AS IT HAD A RIGHT TO, IN
LIGHT OF THE MASS OF OTHER TESTIMONY IN THE CASE, AND FOUND IT
UNPERSUASIVE.  HAD THE BOARD SAID NO MORE THE COURT BELOW COULD HARDLY
HAVE FOUND DISREGARD OF ITS MANDATE.  THE BOARD'S SKEPTICAL EXPRESSION
REGARDING THIS KIND OF TESTIMONY HARDLY DISPROVES OBEDIENCE TO THE
COURT'S MANDATE.  EVEN LOWER COURTS SOMETIME INDICATE DISAGREEMENT WITH
A RULING THEY ARE BOUND TO ENFORCE.  OUT OF REPEATED INSTANCES OF
HEARING THE SAME THING A GENERALIZATION AS TO ITS WORTH WILL ALMOST
INEVITABLY EMERGE IN THE THOUGHTS OF A TRIBUNAL.  AS TO THIS SORT OF
TESTIMONY, IT HAS BEEN OBSERVED THAT A FEELING BY EMPLOYEES "THAT THEY
WERE UNDER NO SENSE OF CONSTRAINT  ...  IS A SUBTLE THING, AND THE
RECOGNITION OF CONSTRAINT MAY CALL FOR A HIGH DEGREE OF INTROSPECTIVE
PERCEPTION."  JUDGE MAGRUDER IN BETHLEHEM SHIPBUILDING CORP. V.
NATIONAL LABOR RELATIONS BOARD, 114 F.2D 930, 937.  WE ARE NOT CALLED
UPON TO LAY DOWN A GENERAL RULE OF MATERIALITY REGARDING SUCH
TESTIMONY.  SUFFICE IT TO SAY THAT THE BOARD OBEYED THE DECISION OF THE
CIRCUIT COURT OF APPEALS THAT THE TESTIMONY OF THE COMPANY'S EMPLOYEES
REGARDING UNION WAS TO BE ADDUCED AND CONSIDERED.  ITS PROBATIVE VALUE
WAS FOR THE BOARD.  SEE PITTSBURGH PLATE GLASS CO. V. NATIONAL LABOR
RELATIONS BOARD, 313 U.S. 146, 163.  AND THE COURT DID NOT RULE THAT
THE REST OF THE RECORD REPELLED THE BOARD'S ASSURANCE THAT IT
"CAREFULLY CONSIDERED" THE EVIDENCE THE COURT BADE IT TO CONSIDER.  IT
EXPRESSLY WITHHELD CONSIDERATION OF THE BOARD'S ORDER ON THE BASIS OF
THE WHOLE RECORD. 

(2)  THE NEW TESTIMONY OF THE DONNELLY EMPLOYEES LED TO RULINGS ON
EVIDENCE BY THE EXAMINER, APPROVED BY THE BOARD, WHICH IN THE VIEW OF
THE COURT BELOW CONTRIBUTED TO RENDER THE HEARING UNFAIR.  THE
TESTIMONY RELATED TO THE OFFENSIVE ASPECT OF INTERNATIONAL'S UNIONIZING
EFFORTS AND THE BEARING OF THIS UPON THE CLAIM OF COMPANY THAT UNION
WAS QUITE INDEPENDENT AND NOT THE COMPANY'S INSTRUMENT.  THE EMPLOYEES
WERE ALLOWED TO TESTIFY THAT THEY WERE ANTAGONIZED BY ACTS OF VIOLENCE
ON THE PART OF INTERNATIONAL AND THAT THEY SOUGHT SELF-PROTECTION IN A
UNION OF THEIR OWN, VOLUNTARILY FORMED.  THE EXAMINER LIMITED THIS LINE
OF TESTIMONY TO ACTS OF VIOLENCE WITHIN SIX MONTHS PRECEDING THE
ORGANIZATION OF UNION.  THIS WAS BASED ON THE NOTION THAT A TIME LIMIT
HAD TO BE DRAWN SOMEWHERE IN ASCERTAINING THE EFFECT OF KNOWN VIOLENCE
IN PERSUADING DONNELLY EMPLOYEES TO FORM THEIR OWN UNION, AND THAT A
PERIOD LONGER THAN SIX MONTHS WAS TOO REMOTE, OR, IN ANY EVENT, HAD NOT
SUFFICIENT PROBATIVE VALUE.  SURELY THIS WAS A REASONABLE RULING BY THE
HEARING-TRIBUNAL.  AT ANY RATE IT WAS NOT SO CIRCUMSCRIBING OF PROOF IN
ESTABLISHING THE ISSUE TOWARD WHICH THE EVIDENCE WAS DIRECTED AS TO
CALL FOR CORRECTION.  BUT IT IS URGED THAT WHILE THE COMPANY WAS SO
RESTRICTED ON PROOF OF THIS ISSUE THE BOARD ALLOWED EVIDENCE FURTHER
BACK CALCULATED TO SHOW A CONTINUOUS STATE OF MIND TOWARD INFLUENCING
EMPLOYEE ASSOCIATION BY THE COMPANY.  BY WAY OF REBUTTAL TO THE
EMPLOYEES' TESTIMONY THAT THE PLANT UNION OF 1937 WAS A SPONTANEOUS
EFFORT OF THE EMPLOYEES WHOLLY UNINFLUENCED BY THE COMPANY, THE BOARD
ADMITTED EVIDENCE TO SHOW THAT THE COMPANY FOSTERED A COMPANY UNION IN
1935.  IT DOES NOT FOLLOW THAT THE LIMITATION OF TIME ON ADMISSIBLE
EVIDENCE IS THE SAME REGARDLESS OF THE ISSUE FOR WHICH THE EVIDENCE IS
TENDERED.  CERTAINLY WE CANNOT SAY THAT IT WAS NOT ADMISSIBLE TO ALLOW
THIS EVIDENCE OF COMPANY COERCION IN 1935 AS BEARING ON THE
INDEPENDENCE OF THE NEW PLANT UNION IN 1937.  AND SO WE CANNOT FIND A
SOLID ENOUGH GROUND TO ESTABLISH DISCRIMINATORY TREATMENT BY THE BOARD
BECAUSE ON THIS ISSUE IT WENT BACK TO 1935 WHEREAS ON THE ISSUE OF THE
INFLUENCE OF INTERNATIONAL'S VIOLENCE IN THE FORMATION OF THE 1937
PLANT UNION, IT DREW THE LINE AT EVENTS SIX MONTHS PRIOR THERETO. 

(3)  WHILE WE THINK THAT THE BOARD PROPERLY CONSTRUED THE SCOPE OF
THE REMAND NOT TO REQUIRE A RETRIAL OF ISSUES CANVASSED AT THE FIRST
HEARING, TIME DOES NOT STOP STILL EVEN FOR THE ADMINISTRATIVE PROCESS. 
CHANGE IN CIRCUMSTANCES MAY MAKE RELEVANT AT THE SECOND HEARING WHAT
WAS IRRELEVANT AT THE FIRST HEARING.  THE CIRCUIT COURT OF APPEALS
FOUND SUCH A CHANGE IN CIRCUMSTANCES IN A DECISION OF THIS COURT
RENDERED AFTER THE FIRST REVIEW BELOW.  IN ITS DECISION OF NOVEMBER 6,
1941, THE CIRCUIT COURT OF APPEALS SUSTAINED THE EXCLUSION BY THE BOARD
OF TESTIMONY TO PROVE MISDEEDS BY INTERNATIONAL.  THE TENOR OF ITS
REASONING WAS THAT AN INQUIRY INTO CHARGES OF UNFAIR LABOR PRACTICES BY
THE COMPANY DID NOT MAKE RELEVANT CHARGES OF MISCONDUCT AGAINST
INTERNATIONAL, THE COMPLAINANT.  THE BOARD ISSUED THE ORDER NOW
CHALLENGED ON JUNE 9, 1943.  IN THE MEANTIME, ON JANUARY 18, 1943, THIS
COURT DECIDED NATIONAL LABOR RELATIONS BOARD V. INDIANA & MICHIGAN
ELECTRIC CO., 318 U.S. 9.  THAT CASE, SO THE COURT BELOW THOUGHT,
REQUIRED THE ADMISSION AT THE SECOND HEARING OF THE OFFER OF PROOF
REGARDING INTERNATIONAL'S ACTS OF VIOLENCE. 

WE REGARD THIS AS A MISAPPLICATION OF THE INDIANA & MICHIGAN CASE. 
THIS CASE IS NOT THAT CASE.  THEY HAVE IN COMMON AN ACCUSATION OF GRAVE
MISCONDUCT AGAINST A COMPLAINANT BEFORE THE BOARD.  OTHERWISE, THE
CIRCUMSTANCES OF THE TWO CASES, AND THE LEGAL ISSUES THEY RAISE, ARE
VERY DIFFERENT.  THE INDIANA & MICHIGAN CASE INVOLVED A PROCEEDING
UNDER SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT AUTHORIZING THE
CIRCUIT COURT OF APPEALS TO ORDER ADDITIONAL EVIDENCE TO BE TAKEN
BEFORE THE BOARD WHEN IT IS SHOWN "TO THE SATISFACTION OF THE COURT
THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR THE FAILURE TO ADDUCE SUCH EVIDENCE" AT THE
HEARING.  WE HAD PREVIOUSLY HELD THAT SUCH AN APPLICATION "WAS
ADDRESSED TO THE SOUND JUDICIAL DISCRETION OF THE COURT."  SOUTHPORT
PETROLEUM CO. V. LABOR BOARD, 315 U.S. 100, 104.  SECTION 10(E) IN
EFFECT FORMULATES A FAMILIAR PRINCIPLE REGARDING NEWLY DISCOVERED
EVIDENCE.  EVEN WITHOUT SUCH EXPLICITNESS THIS COURT HAS, ON OCCASION,
NOT ALLOWED ADMINISTRATIVE ORDERS TO STAND WHERE THERE HAS BEEN A
DRASTIC CHANGE IN CIRCUMSTANCES.  IN INDIANA & MICHIGAN THE OFFER OF
PROOF RELATED TO EVENTS SUBSEQUENT TO THE BOARD'S HEARING, TENDING TO
SHOW ACTS OF SERIOUS VIOLENCE ON BEHALF OF A COMPLAINING UNION.  THE
BOARD HAD REFUSED TO REOPEN THE CASE AND THE CIRCUIT COURT OF APPEALS
FOR THE SIXTH CIRCUIT GRANTED THE APPLICATION UNDER SEC. 10(E).  WE
HELD THAT, IN THE LIGHT OF THE CIRCUMSTANCES BEFORE IT, THE CIRCUIT
COURT OF APPEALS DID NOT ABUSE ITS DISCRETION IN ORDERING ADDITIONAL
EVIDENCE TO BE TAKEN BEFORE THE BOARD.  THE PROFFERED TESTIMONY WAS
HELD RELEVANT ON THREE GROUNDS:  (1) INASMUCH AS THE BOARD, BY THE VERY
NATURE OF ITS CASE LOAD, MUST EXERCISE DISCRETION IN ENTERTAINING
COMPLAINTS, THE NEWLY REVEALED MISCONDUCT ON THE PART OF THE
COMPLAINANT MIGHT AFFECT, NOT THE JURISDICTION OF THE BOARD, BUT THE
EXERCISE OF ITS POWER TO ENTERTAIN A CHARGE; (2) THE NEW EVIDENCE BORE
MATERIALLY UPON THE CREDIBILITY OF SOME IMPORTANT WITNESSES BEFORE THE
BOARD; (3) THE BOARD HAD ATTRIBUTED TO THE COMPANY RESPONSIBILITY FOR
THE CONDUCT OF SOME OF ITS SUPERVISORY EMPLOYEES, AND THE NEW EVIDENCE
MIGHT LEAD THE BOARD TO CONCLUDE THAT THEIR CONDUCT WAS TO BE
ATTRIBUTED TO SELF-INTEREST AND NOT CHARGED AGAINST THE EMPLOYER. 

HERE WE HAVE A TOTALLY DIFFERENT SITUATION.  WE ARE NOT REVIEWING AN
ALLOWABLE EXERCISE OF JUDICIAL DISCRETION BY THE CIRCUIT COURT OF
APPEALS IN ORDERING THE BOARD TO HEAR NEWLY DISCOVERED EVIDENCE.  ON
REVIEW OF ITS ORDER, THE BOARD CANNOT BE COMPELLED TO ADMIT EVIDENCE
WHICH IT EXCLUDED UNLESS SUCH EXCLUSION WAS CLEARLY INSUPPORTABLE.  THE
POWER TO ADDUCE ADDITIONAL EVIDENCE GRANTED TO THE CIRCUIT COURT OF
APPEALS BY SEC. 10(E) CANNOT BE EMPLOYED TO ENLARGE THE STATUTORY SCOPE
OF JUDICIAL REVIEW.  THE SHORT OF THE MATTER IS THAT THE COURT DEEMED
IT REVERSIBLE ERROR ON THE PART OF THE BOARD NOT TO ENTERTAIN TESTIMONY
ON A MATTER WHICH THE COURT DEEMED IRRELEVANT TO THE ISSUES AT THE
FIRST HEARING.  IT DID SO BECAUSE IT INTERPRETED THE INDIANA & MICHIGAN
CASE TO HOLD THAT FAILURE BY THE BOARD TO ALLOW A FULL-DRESS INQUIRY
INTO THE MISCONDUCT OF A COMPLAINANT, PARTICULARLY IF VERY SERIOUS,
RENDERS THE PROCEEDINGS UNFAIR AS A MATTER OF LAW.  WE WERE NOT DEALING
WITH SUCH AN ABSTRACTION IN THE INDIANA & MICHIGAN CASE.  NOTHING SHORT
OF SUCH AN ABSTRACTION WILL JUSTIFY INVALIDATION OF THE ORDER IN THIS
CASE BECAUSE THE BOARD DID NOT DEAL WITH THE CHARGES AGAINST
INTERNATIONAL AS A SEPARATE ISSUE, OR AS THOUGH THE INTERNATIONAL HAD
BEEN ON TRIAL.  THE ONLY CONSIDERATION AFFECTING THE BEHAVIOR OF A
COMPLAINANT THAT PLAYED A PART IN THE DECISION IN INDIANA & MICHIGAN
AND WHICH MAY HERE BE INVOKED, IS THE SUGGESTION THAT THE CHARACTER OF
A COMPLAINANT MAY RIGHTFULLY INFLUENCE THE BOARD IN ENTERTAINING A
COMPLAINT.  BUT THE CHARGES AGAINST INTERNATIONAL HAD IN FACT BEEN
BROUGHT TO THE ATTENTION OF THE BOARD EVEN THOUGH NOT IN THE WAY IN
WHICH INTERNATIONAL WOULD HAVE BEEN TRIED HAD IT BEEN FORMALLY CHARGED
WITH CRIME.  IT WOULD BE UNREAL TO DENY THAT THERE WAS PLENTY OF
EVIDENCE IN THE RECORD TO APPRISE THE BOARD OF ALLEGED MISCONDUCT BY
INTERNATIONAL IF ON THAT SCORE IT CHOSE NOT TO ENTERTAIN CHARGES OF
UNFAIR LABOR PRACTICES AGAINST THE COMPANY.  IN THE LIGHT OF THE
BOARD'S OPINION, IT WOULD BE DOCTRINAIRE TO ASSUME THAT IT WOULD HAVE
REACHED ANY OTHER RESULT IF EVIDENCE OF INTERNATIONAL'S MISCONDUCT HAD
BEEN MORE VOLUMINOUS.  PITTSBURGH PLATE GLASS CO. V. NATIONAL LABOR
RELATIONS BOARD, SUPRA.  THE TWO OTHER RESPECTS IN WHICH NEWLY
DISCOVERED EVIDENCE AS TO VIOLENCE WAS ORDERED TO BE HEARD IN THE
INDIANA & MICHIGAN CASE ARE COMPLETELY LACKING HERE.  HERE WE HAVE NOT
NEW EVIDENCE MATERIAL TO THE CREDIBILITY OF IMPORTANT WITNESSES OR
RELEVANT IN ASSESSING THE RESPONSIBILITY BY AN EMPLOYER FOR CONDUCT OF
SUPERVISORY EMPLOYEES.  THE REFUSAL OF THE BOARD IN EFFECT TO TRY
INTERNATIONAL DID NOT IMPAIR THE VALIDITY OF THE BOARD'S ORDER. 

EVEN IN JUDICIAL TRIALS, THE WHOLE TENDENCY IS TO LEAVE RULINGS AS TO
THE ILLUMINATING RELEVANCE OF TESTIMONY LARGELY TO THE DISCRETION OF
THE TRIAL COURT THAT HEARS THE EVIDENCE.  SEE, E.G., MORGAN, FOREWORD,
AMERICAN LAW INSTITUTE CODE OF EVIDENCE, P. 15.  COURTS OF APPEAL ARE
LESS AND LESS INCLINED TO BASE ERROR ON SUCH RULINGS.  ADMINISTRATIVE
TRIBUNALS ARE GIVEN EVEN FREER SCOPE IN THE APPLICATION OF THE
CONVENTIONAL RULES OF EVIDENCE.  SEE TAGG BROS. V. UNITED STATES, 280
U.S. 420, 442.  IT IS SIGNIFICANT THAT THE WAGNER ACT SPECIFICALLY
PROVIDED THAT "THE RULES OF EVIDENCE PREVAILING IN COURTS OF LAW OR
EQUITY SHALL NOT BE CONTROLLING."  SEC. 10(B). 

THIRD.  THIS BRINGS US TO THE ONLY OTHER OBJECTION TO A RULING OF THE
BOARD MADE AFTER THE FIRST HEARING.  ON THE FIRST REVIEW, THE COURT
BELOW REJECTED THE COMPANY'S CONTENTION THAT THE EXAMINER WAS BIASED. 
123 F.2D AT 219.  ON THE SECOND REVIEW, THE COURT WAS OF OPINION THAT
THE BOARD IMPROPERLY DENIED THE COMPANY'S APPLICATION FOR A NEW
EXAMINER.  IT DID SO, APPARENTLY, NOT BECAUSE IT FOUND ACTUAL BIAS ON
THE PART OF THE EXAMINER DEMONSTRATED AT EITHER HEARING.  THE COURT
SEEMED TO BE MOVED BY THE GENEROUS FEELING THAT A PARTY OUGHT NOT TO BE
PUT TO TRIAL BEFORE AN EXAMINER WHO, BY REASON OF HIS PRIOR RULINGS AND
FINDINGS, MAY NOT BE CAPABLE OF EXERCISING IMPARTIALITY.  CERTAINLY IT
IS NOT THE RULE OF JUDICIAL ADMINISTRATION THAT, STATUTORY REQUIREMENTS
APART, SEE JUDICIAL CODE SEC. 21, 28 U.S.C. SEC. 25, A JUDGE IS
DISQUALIFIED FROM SITTING IN A RETRIAL BECAUSE HE WAS REVERSED ON
EARLIER RULINGS.  WE FIND NO WARRANT FOR IMPOSING UPON ADMINISTRATIVE
AGENCIES A STIFFER RULE, WHEREBY EXAMINERS WOULD BE DISENTITLED TO SIT
BECAUSE THEY RULED STRONGLY AGAINST A PARTY IN THE FIRST HEARING.  THE
BOARD MIGHT HAVE GONE BEYOND THE LEGAL COMPULSIONS AND ORDERED THE NEW
EVIDENCE TO BE HEARD BEFORE A NEW EXAMINER WHO COULD REPORT WITH A MIND
WHOLLY FREE FROM PRIOR LITIGIOUS EMBROILMENTS.  THE BOARD MIGHT HAVE
BEEN WELL ADVISED ALSO TO ALLOW GREATER LEEWAY IN ADMITTING EVIDENCE
NOT STRICTLY RELEVANT.  IT TAKES TIME TO AVOID EVEN THE APPEARANCE OF
GRIEVANCES.  BUT IT IS TIME WELL SPENT, EVEN THOUGH IT IS NOT EASY TO
SATISFY INTERESTED PARTIES, AND DEFEATED LITIGANTS, NO MATTER HOW
FAIRLY TREATED, DO NOT ALWAYS HAVE THE FEELING THAT THEY HAVE RECEIVED
JUSTICE.  IN ANY EVENT, WE ARE NOT THE ADVISERS OF THESE AGENCIES.  AND
WE HAVE NO RIGHT TO UPSET THEIR ORDERS UNLESS THEY FALL AFOUL OF LEGAL
REQUIREMENTS.  CF. INLAND EMPIRE COUNCIL V. MILLIS, 325 U.S. 697.  WE
DO NOT FIND THAT THE BOARD'S ORDER OFFENDS THEM. 

FOURTH.  WE HAVE EXAMINED ALL THE ISSUES PRESSED HERE BUT WE NEED NOT
ENLARGE UPON OUR CONCLUSION THAT THEY ARE WITHOUT MERIT.  THERE REMAINS
THE PROPER DISPOSITION OF THE CASE.  HAVING FOUND INFIRMITIES IN THE
PROCEEDINGS WHICH LED TO THE ORDER, THE COURT BELOW DID NOT CONSIDER
THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN THE FINDINGS ON WHICH THE
ORDER WAS BASED.  THIS CONTROVERSY HAS BEEN SO LONG IN LITIGATION THAT,
OTHER THINGS BEING EQUAL, IT WOULD BE HIGHLY DESIRABLE FINALLY TO
DISPOSE OF THE WHOLE CASE HERE.  BUT OTHER THINGS ARE NOT EQUAL.  IT IS
NOT THE FUNCTION OF THIS COURT TO REVIEW IN THE FIRST INSTANCE THE
SUFFICIENCY OF EVIDENCE ON WHICH THE BOARD'S ORDER IS BASED.  CONGRESS
PLACED THAT FUNCTION IN THE CIRCUIT COURT OF APPEALS.  AND THIS CASE IS
PECULIARLY NOT ONE IN WHICH WE SHOULD DO THE UNUSUAL THING AND PASS ON
EVIDENCE WITHOUT ITS PRIOR CONSIDERATION BY THE LOWER COURT.  IT IS NOT
FOR US TO MAKE AN INDEPENDENT EXAMINATION OF THIS ENTIRE RECORD.  THE
DEMANDS OF THE WORK OF THIS COURT PRECLUDE AN INDEPENDENT CANVASS OF A
RECORD OF THIRTEEN VOLUMES, CONTAINING MORE THAN 5000 PAGES.  TWO
JUDGES BELOW WHO HAD GONE OVER THIS MASS OF EVIDENCE REACHED OPPOSITE
CONCLUSIONS REGARDING ITS SUFFICIENCY TO SUPPORT THE BOARD'S FINDINGS. 
FOR THE DETERMINATION OF THIS ISSUE WE REMAND THE CASE TO THE CIRCUIT
COURT OF APPEALS.  REVERSED AND REMANDED. 
..END :













UNITED STATES V. POWELL, 330 U.S. 238 


ARGUED JANUARY 13, 1947.  - DECIDED MARCH 3, 1947.  - 152 F.2D 228, 230,
AFFIRMED. 


1.  SECTION 321(A) OF THE TRANSPORTATION ACT OF 1940 PROVIDES THAT
COMMERCIAL RATES SHALL BE APPLICABLE TO TRANSPORTATION OF PROPERTY FOR
THE UNITED STATES, EXCEPTING "MILITARY OR NAVAL PROPERTY OF THE UNITED
STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE."  HELD:
PHOSPHATE ROCK AND SUPERPHOSPHATE WHICH WERE PROPERTY OF THE UNITED
STATES, AND WHICH WERE TRANSPORTED IN 1941 ON CONSIGNMENT TO THE
BRITISH MINISTRY OF WAR TRANSPORT UNDER THE LEND-LEASE ACT, BUT WHICH
WERE FOR USE IN BRITAIN AS FARM FERTILIZER, WERE NOT WITHIN THE
EXCEPTION AND WERE NOT ENTITLED TO LAND-GRANT RATHER THAN COMMERCIAL
RATES.  PP. 239-242, 247. 

2.  THE FACT THAT THE GOODS TRANSPORTED WERE "DEFENSE ARTICLES" UNDER
THE LEND-LEASE ACT DID NOT OF ITSELF ENTITLE THEM TO LAND-GRANT RATES
UNDER SEC. 321(A).  PP. 242-245. 

3.  ALTHOUGH THE EXCEPTION IN SEC. 321(A) IS TO BE CONSTRUED STRICTLY
IN FAVOR OF THE UNITED STATES, THE STANDARDS OF THE LEND-LEASE ACT ARE
NOT TO BE READ INTO THE TRANSPORTATION ACT.  PP. 243-244. 

4.  THE PROPERTY HERE INVOLVED WAS BEING TRANSPORTED FOR A "CIVIL"
USE WITHIN THE MEANING OF SEC. 321(A), SINCE IT WAS DESTINED FOR USE BY
CIVILIAN AGENCIES IN AGRICULTURAL PROJECTS AND NOT FOR USE BY THE ARMED
SERVICES TO SATISFY ANY OF THEIR NEEDS OR WANTS OR BY ANY CIVILIAN
AGENCY WHICH ACTED AS THEIR ADJUNCT OR OTHERWISE SERVICED THEM IN ANY
OF THEIR ACTIVITIES.  PP. 245-247. 

UNITED STATES V. POWELL ET AL., RECEIVERS. 

NO. 56.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT* . 

*TOGETHER WITH NO. 57, UNITED STATES V. ATLANTIC COAST LINE RAILROAD
CO., ALSO ON CERTIORARI TO THE SAME COURT. 

RESPONDENTS BROUGHT SUITS AGAINST THE UNITED STATES UNDER THE TUCKER
ACT, 36 STAT. 1091, TO RECOVER SUMS ALLEGEDLY DUE FOR TRANSPORTATION OF
GOVERNMENT PROPERTY.  THE DISTRICT COURTS GAVE JUDGMENT FOR
RESPONDENTS.  60 F.SUPP.  433(NO. 56).  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  152 F.2D 228, 230.  THIS COURT GRANTED CERTIORARI.  328 U.S.
826.  AFFIRMED, P. 247. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE CONTROVERSIES BETWEEN THE UNITED STATES AND
RESPONDENT CARRIERS OVER THE TRANSPORTATION CHARGES FOR SHIPMENTS OF
GOVERNMENT PROPERTY IN 1941.  IN ONE CASE PHOSPHATE ROCK AND
SUPERPHOSPHATE ARE INVOLVED; IN THE OTHER, PHOSPHATE ROCK.  IN BOTH THE
COMMODITIES WERE PURCHASED BY THE UNITED STATES, SHIPPED ON GOVERNMENT
BILLS OF LADING OVER THE LINES OF RESPONDENTS, AND CONSIGNED TO THE
BRITISH MINISTRY OF WAR TRANSPORT.  THEY WERE EXPORTED TO GREAT BRITAIN
UNDER THE LEND-LEASE ACT OF MARCH 11, 1941, 55 STAT. 31, 22 U.S.C.
SUPP. I, SEC. 411 ET SEQ., FOR USE AS FARM FERTILIZER UNDER BRITAIN'S
WARTIME PROGRAM FOR INTENSIFIED PRODUCTION OF FOOD.  IT IS AGREED THAT
THESE SHIPMENTS WERE "DEFENSE ARTICLES" AS DEFINED IN SEC. 2 OF THAT
ACT.  FN1 

RESPONDENTS BILLED THE UNITED STATES FOR TRANSPORTATION CHARGES ON
THESE SHIPMENTS AT THE COMMERCIAL RATE AND WERE PAID AT THAT RATE.  THE
SEABOARD IS A LAND-GRANT RAILROAD.  THE ATLANTIC COAST LINE IS NOT; BUT
IT ENTERED INTO AN EQUALIZATION AGREEMENT WITH THE UNITED STATES IN
1938 UNDER WHICH IT AGREED TO ACCEPT LAND-GRANT RATES FOR SHIPMENTS
WHICH THE UNITED STATES COULD ALTERNATIVELY MOVE OVER A LAND-GRANT
ROAD.  FN2  THE GENERAL ACCOUNTING OFFICE EXCEPTED TO THESE PAYMENTS ON
THE GROUND THAT LAND-GRANT RATES WERE APPLICABLE.  THE AMOUNTS OF THE
ALLEGED OVERPAYMENTS WERE DEDUCTED FROM SUBSEQUENT BILLS CONCEDEDLY DUE
BY THE UNITED STATES.  RESPONDENTS THEREUPON INSTITUTED SUITS UNDER THE
TUCKER ACT, 36 STAT. 1091, 1093, AS AMENDED, 28 U.S.C. SEC. 41(20), TO
RECOVER THE AMOUNTS WITHHELD.  THE UNITED STATES COUNTERCLAIMED FOR THE
DIFFERENCE BETWEEN THE AMOUNTS DUE UNDER THE COMMERCIAL RATE AND THOSE
DUE UNDER THE LAND-GRANT RATE AND ASKED THAT THE DIFFERENCE BE SET OFF
AGAINST THE CLAIMS OF RESPONDENTS AND THAT THE COMPLAINTS BE
DISMISSED.  THE DISTRICT COURTS GAVE JUDGMENT FOR RESPONDENTS.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  152 F.2D 228, 230.  THE CASES ARE
HERE ON PETITIONS FOR WRITS OF CERTIORARI WHICH WE GRANTED BECAUSE OF
THE IMPORTANCE OF DETERMINING THE CONTROLLING PRINCIPLE FOR SETTLEMENT
OF THE MANY CLAIMS OF THIS CHARACTER AGAINST THE GOVERNMENT. 

FOR YEARS THE LAND-GRANT RATE WAS FIFTY PER CENT OF THE COMMERCIAL
RATE AND WAS APPLICABLE TO THE TRANSPORTATION OF PROPERTY OR TROOPS OF
THE UNITED STATES.  43 STAT. 477, 486, 10 U.S.C. SEC. 1375; UNITED
STATES V. UNION PACIFIC R. CO., 249 U.S. 354, 355; SOUTHERN RY. CO. V.
UNITED STATES, 322 U.S. 72, 73.  A CHANGE WAS EFFECTED BY THE
TRANSPORTATION ACT OF SEPTEMBER 18, 1940, 54 STAT. 898, 954, 49 U.S.C.
SEC. 65.  SEE KRUG V. SANTA FE PAC. R. CO., 329 U.S. 591.  ALL CARRIERS
BY RAILROAD WHICH RELEASED THEIR LAND-GRANT CLAIMS AGAINST THE UNITED
STATES  FN3  WERE BY THAT ACT ENTITLED TO THE FULL COMMERCIAL RATES FOR
ALL SHIPMENTS, EXCEPT THAT THOSE RATES WERE INAPPLICABLE TO THE
TRANSPORTATION OF "MILITARY OR NAVAL PROPERTY OF THE UNITED STATES
MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE OR TO THE
TRANSPORTATION OF MEMBERS OF THE MILITARY OR NAVAL FORCES OF THE UNITED
STATES (OR OF PROPERTY OF SUCH MEMBERS) WHEN SUCH MEMBERS ARE TRAVELING
ON OFFICIAL DUTY  ..."  SEC.  321(A).  FN4  THE SEABOARD FILED SUCH A
RELEASE.  ACCORDINGLY, THE QUESTION PRESENTED BY THESE CASES IS WHETHER
THE FERTILIZER WAS "MILITARY OR NAVAL PROPERTY OF THE UNITED STATES
MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE" WITHIN THE MEANING
OF SEC. 321(A) OF THE TRANSPORTATION ACT. 

THE LEGISLATIVE HISTORY OF THE TRANSPORTATION ACT OF 1940 THROWS NO
LIGHT ON THE SCOPE OF THE EXCEPT CLAUSE.  FN5  BUT IT IS APPARENT FROM
THE FACE OF THE STATUTE THAT THERE ARE IMPORTANT LIMITATIONS ON THE
TYPE OF PROPERTY WHICH MUST BE CARRIED AT LESS THAN THE APPLICABLE
COMMERCIAL RATES.  IN THE FIRST PLACE, IT IS NOT THE TRANSPORTATION OF
"ALL" PROPERTY OF THE UNITED STATES THAT IS EXCEPTED BUT ONLY THE
TRANSPORTATION OF "MILITARY OR NAVAL" PROPERTY OF THE UNITED STATES. 
IN THE SECOND PLACE, THE EXCEPTED PROPERTY MUST BE "MOVING FOR MILITARY
OR NAVAL AND NOT FOR CIVIL USE."  THUS THE SCOPE OF THE CLAUSE IS
RESTRICTED BOTH BY THE NATURE OF THE PROPERTY SHIPPED AND BY THE USE TO
WHICH IT WILL BE PUT AT THE END OF THE TRANSPORTATION. 

THE BULK AND MAIN STRESS OF PETITIONER'S ARGUMENT ARE BASED ON THE
LEND-LEASE ACT WHICH WAS ENACTED ABOUT SIX MONTHS AFTER THE
TRANSPORTATION ACT.  IT IS POINTED OUT THAT IN THE CASE OF EVERY
SHIPMENT UNDER THE LEND-LEASE ACT THERE WAS A FINDING BY THE EXECUTIVE
THAT THE SHIPMENT WOULD PROMOTE OUR NATIONAL DEFENSE,  FN6  THAT THE
ACT WAS INDEED A DEFENSE MEASURE,  FN7  AND THAT UNLESS THE
ADMINISTRATION OF THAT ACT IS IMPEACHED, ALL LEND-LEASE "DEFENSE
ARTICLES" FALL WITHIN THE EXCEPT CLAUSE AND ARE ENTITLED TO LAND-GRANT
RATES. 

UNDER CONDITIONS OF MODERN WARFARE, FOODSTUFFS LEND-LEASED FOR
CIVILIAN CONSUMPTION SUSTAINED THE WAR PRODUCTION PROGRAM AND MADE
POSSIBLE THE CONTINUED MANUFACTURE OF MUNITIONS, ARMS, AND OTHER WAR
SUPPLIES NECESSARY TO MAINTAIN THE ARMED FORCES.  FOR LIKE REASONS,
FERTILIZERS WHICH MADE POSSIBLE INCREASED FOOD PRODUCTION SERVED THE
SAME END.  IN THAT SENSE ALL CIVILIAN SUPPLIES WHICH MAINTAINED THE
HEALTH AND VIGOR OF CITIZENS AT HOME OR ABROAD SERVED MILITARY
FUNCTIONS. 

SO FOR US THE RESULT WOULD BE CLEAR IF THE STANDARDS OF THE LEND
LEASE ACT WERE TO BE READ INTO THE TRANSPORTATION ACT.  FOR THE
CIRCUMSTANCE THAT THE FERTILIZER WAS TO BE USED BY AN ALLY RATHER THAN
BY THIS NATION WOULD NOT BE CONTROLLING. 

OUR DIFFICULTY, HOWEVER, ARISES WHEN WE ARE ASKED TO TRANSPLANT THOSE
STANDARDS INTO THE TRANSPORTATION ACT.  AND THAT DIFFICULTY IS NOT
SURMOUNTED THOUGH THE EXCEPTION IN SEC. 321(A) BE CONSTRUED, AS IT MUST
BE, NORTHERN PACIFIC R. CO. V. UNITED STATES, DECIDED THIS DAY, POST,
P. 248, STRICTLY IN FAVOR OF THE UNITED STATES. 

IN THE FIRST PLACE, THE TRANSPORTATION ACT, WHICH PRECEDED THE LEND
LEASE ACT BY ONLY SIX MONTHS, PROVIDED ITS OWN STANDARDS.  THEY WERE
DIFFERENT AT LEAST IN TERMS FROM THE STANDARDS OF THE LEND-LEASE ACT;
AND THEY WERE PROVIDED AT A TIME WHEN CONGRESS WAS MUCH CONCERNED WITH
THE PROBLEMS OF NATIONAL DEFENSE.  IN SEPTEMBER, 1940, WHEN THE
TRANSPORTATION ACT WAS PASSED, CONGRESS AND THE NATION WERE VISIBLY
AWARE OF THE POSSIBILITIES OF WAR.  APPROPRIATIONS FOR THE ARMY AND
NAVY WERE BEING INCREASED AND THE SCOPE OF THEIR OPERATIONS WIDENED,
FN8  ALIEN REGISTRATION WAS REQUIRED,  FN9  TRAINING OF CIVILIANS FOR
MILITARY SERVICE WAS AUTHORIZED,  FN10 DEVELOPMENT OF STOCK PILES OF
STRATEGIC AND CRITICAL MATERIALS WAS ENCOURAGED N11 - TO MENTION ONLY A
FEW OF THE MEASURES BEING PASSED IN THE INTERESTS OF NATIONAL DEFENSE. 
SEE 50 YALE L.J. 250.  MOREOVER, THE REALITIES OF TOTAL WAR WERE BY
THEN PLAIN TO ALL.  EUROPE HAD FALLEN; MILITARISM WAS RAMPANT.  YET IN
SPITE OF OUR ACUTE AWARENESS OF THE NATURE OF TOTAL WAR, IN SPITE OF
THE MANY MEASURES BEING ENACTED AND THE MANY STEPS BEING TAKEN BY THE
CONGRESS AND THE CHIEF EXECUTIVE TO PREPARE OUR NATIONAL DEFENSE, SEC.
321(A) OF THE TRANSPORTATION ACT WAS COUCHED IN DIFFERENT TERMS.  IN
OTHER PARTS OF THAT ACT,  FN12 AS IN MANY OTHER CONGRESSIONAL
ENACTMENTS PASSED DURING THE PERIOD, THE EXIGENCIES OF NATIONAL DEFENSE
CONSTITUTED THE STANDARD TO GOVERN ADMINISTRATIVE ACTION.  BUT THE
STANDARD WRITTEN INTO SEC. 321(A) DID NOT REFLECT THE NECESSITIES OF
NATIONAL DEFENSE OR THE DEMANDS WHICH TOTAL WAR MAKES ON AN ECONOMY. 
IT USED MORE CONVENTIONAL LANGUAGE - "MILITARY OR NAVAL" USE AS
CONTRASTED TO "CIVIL" USE.  THAT OBVIOUSLY IS NOT CONCLUSIVE ON THE
PROBLEM OF INTERPRETATION WHICH THESE CASES PRESENT.  BUT IN LIGHT OF
THE ENVIRONMENT IN WHICH SEC. 321(A) WAS WRITTEN WE ARE RELUCTANT TO
CONCLUDE THAT CONGRESS MEANT "ALL PROPERTY OF THE UNITED STATES
TRANSPORTED FOR THE NATIONAL DEFENSE" WHEN IT USED MORE RESTRICTIVE
LANGUAGE. 

IN THE SECOND PLACE, THE LANGUAGE OF SEC. 321(A) EMPHASIZES A
DISTINCTION WHICH WOULD BE LARGELY OBLITERATED IF THE REQUIREMENTS OF
NATIONAL DEFENSE, ACCENTUATED BY A TOTAL WAR BEING WAGED IN OTHER PARTS
OF THE WORLD, WERE READ INTO IT.  SECTION 321(A) USES "MILITARY OR
NAVAL" USE IN CONTRAST TO "CIVIL" USE.  YET IF THESE FERTILIZER
SHIPMENTS ARE NOT FOR "CIVIL" USE, WE WOULD FIND IT DIFFICULT TO HOLD
THAT LIKE SHIPMENTS BY THE GOVERNMENT TO FARMERS IN THIS COUNTRY DURING
THE COURSE OF THE WAR WERE FOR "CIVIL" USE.  FOR IN TOTAL WAR FOOD
SUPPLIES OF ALLIES ARE POOLED; AND THE IMPORTANCE OF MAINTAINING FULL
AGRICULTURAL PRODUCTION IN THIS COUNTRY IF THE WAR EFFORT WAS TO BE
SUCCESSFUL, CANNOT BE GAINSAID.  WHEN THE RESOURCES OF A NATION ARE
MOBILIZED FOR WAR, MOST OF WHAT IT DOES IS FOR A MILITARY END - WHETHER
IT BE RATIONING, OR INCREASED INDUSTRIAL OR AGRICULTURAL PRODUCTION,
PRICE CONTROL, OR THE HOST OF OTHER FAMILIAR ACTIVITIES.  BUT IN COMMON
PARLANCE, SUCH ACTIVITIES ARE CIVIL, NOT MILITARY.  IT SEEMS TO US THAT
CONGRESS MARKED THAT DISTINCTION WHEN IT WROTE SEC. 321(A).  IF THAT IS
NOT THE DISTINCTION, THEN "FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE"
WOULD HAVE TO BE READ "FOR MILITARY OR NAVAL USE OR FOR CIVIL USE WHICH
SERVES THE NATIONAL DEFENSE."  SO TO CONSTRUE SEC. 321(A) WOULD, IT
SEEMS TO US, LARGELY OR SUBSTANTIALLY WIPE OUT THE LINE WHICH CONGRESS
DREW AND, IN TIME OF WAR, WOULD BLEND "CIVIL" AND "MILITARY" WHEN
CONGRESS UNDERTOOK TO SEPARATE THEM.  YET SEC. 321(A) WAS DESIGNED AS
PERMANENT LEGISLATION, NOT AS A TEMPORARY MEASURE TO MEET THE
EXIGENCIES OF WAR.  IT WAS TO SUPPLY THE STANDARD BY WHICH RATES FOR
GOVERNMENT SHIPMENTS WERE TO BE DETERMINED AT ALL TIMES - IN PEACE AS
WELL AS IN WAR.  ONLY IF THE DISTINCTION BETWEEN "MILITARY" AND "CIVIL"
WHICH COMMON PARLANCE MARKS IS PRESERVED, WILL THE STATUTE HAVE A
CONSTANT MEANING WHETHER SHIPMENTS ARE MADE IN DAYS OF PEACE, AT TIMES
WHEN THERE IS HURRIED ACTIVITY FOR DEFENSE, OR DURING A STATE OF WAR. 

IN THE THIRD PLACE, THE EXCEPTION IN SEC. 321(A) EXTENDS NOT ONLY TO
THE TRANSPORTATION OF SPECIFIED PROPERTY FOR SPECIFIED USES.  IT
EXTENDS AS WELL TO "THE TRANSPORTATION OF MEMBERS OF THE MILITARY OR
NAVAL FORCES OF THE UNITED STATES (OR OF PROPERTY OF SUCH MEMBERS) WHEN
SUCH MEMBERS ARE TRAVELING ON OFFICIAL DUTY  ..."  THAT CLAUSE PLAINLY
DOES NOT INCLUDE THE MULTITUDE OF CIVILIANS EMPLOYED BY THE GOVERNMENT
DURING THE WAR AND EXCLUSIVELY ENGAGED IN FURTHERING THE WAR EFFORT,
WHETHER THEY BE LEND-LEASE OFFICIALS OR OTHERS.  FN13  THUS, THE ENTIRE
EXCEPT CLAUSE CONTAINED IN SEC. 321(A) WILL RECEIVE A MORE HARMONIOUS
CONSTRUCTION IF THE SCOPE OF "MILITARY OR NAVAL" IS LESS BROADLY
CONSTRUED, SO AS TO BE MORE CONSONANT WITH THE RESTRICTIVE SENSE IN
WHICH IT IS OBVIOUSLY USED IN THE PERSONNEL PORTION OF THE CLAUSE. 

IN SUM, WE HOLD THAT RESPONDENTS IN THESE CASES WERE ENTITLED TO THE
FULL APPLICABLE COMMERCIAL RATE FOR THE TRANSPORTATION OF THE
FERTILIZER.  IN NORTHERN PACIFIC R. CO. V. UNITED STATES, SUPRA, WE
DEVELOP MORE FULLY THE BREADTH OF THE CATEGORY OF "MILITARY OR NAVAL
PROPERTY" OF THE UNITED STATES "MOVING FOR MILITARY OR NAVAL  ...
USE."  IT IS SUFFICIENT HERE TO SAY THAT THE FERTILIZER WAS BEING
TRANSPORTED FOR A "CIVIL" USE WITHIN THE MEANING OF SEC. 321(A), SINCE
IT WAS DESTINED FOR USE BY CIVILIAN AGENCIES IN AGRICULTURAL PROJECTS
AND NOT FOR USE BY THE ARMED SERVICES TO SATISFY ANY OF THEIR NEEDS OR
WANTS OR BY ANY CIVILIAN AGENCY WHICH ACTED AS THEIR ADJUNCT OR
OTHERWISE SERVICED THEM IN ANY OF THEIR ACTIVITIES.  AFFIRMED. 

FN1  THE TERM INCLUDES "ANY AGRICULTURAL, INDUSTRIAL OR OTHER
COMMODITY OR ARTICLE FOR DEFENSE." 

FN2  THE POINTS FROM WHICH THE PHOSPHATE WAS MOVED BY THE ATLANTIC
COAST LINE ARE ALSO STATIONS ON THE SEABOARD LINE.  HENCE THE UNITED
STATES IS ENTITLED TO SECURE LAND-GRANT DEDUCTIONS FROM THE ATLANTIC
COAST LINE IF THE SEABOARD WOULD HAVE BEEN SUBJECT TO LAND-GRANT RATES
ON THOSE ARTICLES. 

SINCE THE LAND-GRANT RATES WERE SUBSTANTIALLY LOWER THAN THE
COMMERCIAL RATES, ROADS WHICH COMPETED WITH THE LAND-GRANT LINES WERE
UNABLE TO GET THE GOVERNMENT BUSINESS.  FOR THAT REASON THEY ENTERED
INTO EQUALIZATION AGREEMENTS.  SEE SOUTHERN RY. CO. V. UNITED STATES,
322 U.S. 72, 73-74. 

FN3  SECTION 321(B). 

FN4  THIS PROVISION WAS ELIMINATED FROM SEC. 321(A) BY THE ACT OF
DECEMBER 12, 1945, 59 STAT. 606, 49 U.S.C. SUPP. V, SEC. 65(A). 
AMENDMENT BUT PROVIDED THAT "ANY TRAVEL OR TRANSPORTATION SPECIFICALLY
CONTRACTED FOR PRIOR TO SUCH EFFECTIVE DATE SHALL BE PAID FOR AT THE
RATE, FARE, OR CHARGE IN EFFECT AT THE TIME OF ENTERING INTO SUCH
CONTRACT OF CARRIAGE OR SHIPMENT."    SENATOR WHEELER, CHAIRMAN OF THE
SENATE COMMITTEE ON INTERSTATE COMMERCE, WHO HAD CHARGE OF THE BILL ON
THE FLOOR, MADE THE FOLLOWING STATEMENT CONCERNING PENDING
CONTROVERSIES OF THE NATURE INVOLVED IN THE INSTANT CASES: 

"NOW, MR. PRESIDENT, I WISH TO REPEAT WHAT I SAID A MOMENT AGO.  IT
SHOULD BE MADE PERFECTLY CLEAR THAT THE PASSAGE OF THIS BILL RESULTING
IN THE REPEAL OF THE LAND-GRANT RATES WILL HAVE NO EFFECT WHATEVER UPON
THE CONTROVERSIES AS TO THE PROPER CLASSIFICATION OF THIS MATERIAL,
PROVIDED IT HAS MOVED PRIOR TO THE EFFECTIVE DATE OF THE ACT.  THESE
CONTROVERSIES, WHICH WERE DISCUSSED EXTENSIVELY AT THE HEARINGS, WILL
HAVE TO BE SETTLED BY THE COURTS; AND ACTION ON THE PRESENT BILL, IF
FAVORABLE, WILL HAVE NO EFFECT WHATEVER UPON THE QUESTION OF WHETHER
MATERIALS THAT HAVE MOVED PRIOR TO THE REPEAL FALL WITHIN OR WITHOUT
THE CLASSIFICATION OF MILITARY OR NAVAL PROPERTY."  91 CONG. REC. P.
9237. 

FN5  SEE H. REP. NO. 2016, 76TH CONG., 3D SESS., P. 87; H. REP. NO.
2832, 76TH CONG., 3D SESS., P. 93.  RELIEF FROM LAND-GRANT DEDUCTIONS
WAS URGED ON THE BASIS OF THE FINANCIAL PLIGHT OF THE RAILROADS AND THE
SUBSTANTIAL INCREASE IN GOVERNMENT TRAFFIC WHICH OCCURRED IN THE
1930'S.  SEE REPORT OF PRESIDENT'S COMMITTEE OF SEPTEMBER 20, 1938, 1
HEARINGS, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 76TH
CONG., 1ST SESS., ON H.R. 2531, PP. 261, 271-272; PUBLIC AIDS TO
TRANSPORTATION (1938), VOL. II, PP. 42-45.  THE SECTION FINALLY ENACTED
APPEARS TO REPRESENT A COMPROMISE BETWEEN A HOUSE BILL ELIMINATING LAND
GRANT RATES ENTIRELY (SEE H. REP. NO. 1217, 76TH CONG., 1ST SESS., P.
27) AND A SENATE BILL WHICH BY ITS SILENCE LEFT THEM UNCHANGED.  S.
2009, 76TH CONG., 1ST SESS. 

FN6  THE AUTHORITY WAS VESTED IN THE PRESIDENT, WHO MIGHT, WHEN HE
DEEMED IT "IN THE INTEREST OF NATIONAL DEFENSE," AUTHORIZE THE
SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE HEAD OF ANY OTHER
DEPARTMENT OR AGENCY OF THE GOVERNMENT TO LEASE, LEND, ETC., "ANY
DEFENSE ARTICLE."  SEC. 3(A)(2). 

FN7  THE ACT WAS ENTITLED "AN ACT TO PROMOTE THE DEFENSE OF THE
UNITED STATES"; AND THE INTERESTS OF NATIONAL DEFENSE WERE THE
STANDARDS GOVERNING ITS ADMINISTRATION, AS SEC. 3(A)(2), SUPRA, NOTE 6,
MAKES PLAIN.  THE SAME PURPOSE IS EVIDENT FROM THE COMMITTEE REPORTS. 
H. REP. NO. 18, 77TH CONG., 1ST SESS., PP. 2, 11; S. REP. NO. 45, 77TH
CONG., 1ST SESS., P. 2.  AND AS PRESIDENT ROOSEVELT STATED ON SEPTEMBER
11, 1941, IN TRANSMITTING THE SECOND REPORT UNDER THE ACT, "WE ARE NOT
FURNISHING THIS AID AS AN ACT OF CHARITY OR SYMPATHY, BUT AS A MEANS OF
DEFENDING AMERICA....  THE LEND-LEASE PROGRAM IS NO MERE SIDE ISSUE TO
OUR PROGRAM OF ARMING FOR DEFENSE.  IT IS AN INTEGRAL PART, A KEYSTONE,
IN OUR GREAT NATIONAL EFFORT TO PRESERVE OUR NATIONAL SECURITY FOR
GENERATIONS TO COME, BY CRUSHING THE DISTURBERS OF OUR PEACE."  S. DOC.
NO. 112, 77TH CONG., 1ST SESS., P. VI. 

FN8  SEE, FOR EXAMPLE, ACT OF JUNE 11, 1940, 54 STAT. 265, 292, 297;
ACT OF JUNE 13, 1940, 54 STAT. 350, 377; ACT OF JUNE 14, 1940, 54 STAT.
394; ACTS OF JUNE 15, 1940, 54 STAT. 396, 54 STAT. 400; ACT OF JUNE 26,
1940, 54 STAT. 599. 

FN9  ACT OF JUNE 28, 1940, 54 STAT. 670, 8 U.S.C. SEC. 451 ET SEQ. 

FN10  ACT OF SEPTEMBER 16, 1940, 54 STAT. 885, 50 U.S.C. APP. SEC.
301 ET SEQ. 

FN11  ACT OF SEPTEMBER 16, 1940, 54 STAT. 897. 

FN12  THUS SEC. 1 EMPHASIZED THE POLICY IN ESTABLISHING A NATIONAL
TRANSPORTATION SYSTEM ADEQUATE, INTER ALIA, TO MEET THE NEEDS "OF THE
NATIONAL DEFENSE." 

FN13  THE PROVISION UNDER LAND-GRANT LEGISLATION THAT "TROOPS OF THE
UNITED STATES" SHOULD BE TRANSPORTED AT HALF RATES WAS HELD NOT TO
INCLUDE DISCHARGED SOLDIERS, DISCHARGED MILITARY PRISONERS, REJECTED
APPLICANTS FOR ENLISTMENT, APPLICANTS FOR ENLISTMENT PROVISIONALLY
ACCEPTED, RETIRED ENLISTED MEN, OR FURLOUGHED SOLDIERS EN ROUTE BACK TO
THEIR STATIONS.  UNITED STATES V. UNION PACIFIC R. CO., SUPRA.  THE
SAME RESULT WAS REACHED IN THE CASE OF ENGINEER OFFICERS OF THE WAR
DEPARTMENT WHO WERE ASSIGNED TO DUTY IN CONNECTION WITH THE IMPROVEMENT
OF RIVERS AND HARBORS.  SOUTHERN PACIFIC CO. V. UNITED STATES, 285 U.S.
240. 

MR. JUSTICE RUTLEDGE DISSENTS. 
..END :






NORTHERN PACIFIC R. CO. V. U.S., 330 U.S. 248 


NO. 400.  ARGUED JANUARY 13, 1947.  - DECIDED MARCH 3, 1947.  - 156 F.2D
346, AFFIRMED. 


1.  SECTION 321(A) OF THE TRANSPORTATION ACT OF 1940 PROVIDES THAT
COMMERCIAL RATES SHALL BE APPLICABLE TO TRANSPORTATION OF PROPERTY FOR
THE UNITED STATES, EXCEPTING "MILITARY OR NAVAL PROPERTY OF THE UNITED
STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE."  HELD:  THE
PROPERTY INVOLVED IN EACH OF THE FIVE CLASSES HEREINAFTER DESCRIBED,
WHICH AT THE TIME OF THE SHIPMENTS IN 1941-1943 WAS PROPERTY OF THE
UNITED STATES, WAS WITHIN THE EXCEPTION AND HENCE ENTITLED TO LAND
GRANT RATHER THAN COMMERCIAL RATES.  PP. 250-255. 

(1)  COPPER CABLE CONSIGNED TO A NAVAL OFFICER FOR USE IN THE
INSTALLATION OF DEGAUSSING EQUIPMENT (A DEFENSE AGAINST MAGNETIC MINES)
ON A CARGO VESSEL, BEING BUILT BY A SHIPBUILDING COMPANY UNDER CONTRACT
WITH THE MARITIME COMMISSION, ACCORDING TO PLANS WHEREBY THE VESSEL
WOULD BE CONVERTIBLE INTO A MILITARY OR NAVAL AUXILIARY.  THE
DEGAUSSING SPECIFICATIONS WERE PREPARED BY THE NAVY, WHICH ALSO
FURNISHED ALL MATERIAL AND BORE THE COST.  THE VESSEL WAS DELIVERED IN
1941 AND WAS OPERATED AS DIRECTED BY THE MARITIME COMMISSION OR THE WAR
SHIPPING ADMINISTRATION.  PP. 251, 255. 

(2)  LUMBER FOR USE IN THE CONSTRUCTION OF A MUNITIONS PLANT WHICH
WAS BEING CONSTRUCTED FOR THE GOVERNMENT BY CONTRACTORS UNDER ARMY
SUPERVISION.  PP. 251, 255. 

(3)  LUMBER FOR THE CONSTRUCTION OF PONTONS BY A CONTRACTOR UNDER A
CONTRACT WITH THE MARINE CORPS.  THE PRODUCT WAS EITHER SHIPPED
OVERSEAS IN CONNECTION WITH MILITARY OR NAVAL OPERATIONS OR USED IN THE
TRAINING OF COMBAT ENGINEERS.  PP. 251, 255. 

(4)  BOWLING ALLEY EQUIPMENT DESTINED FOR A NAVAL AIR BASE UNDER
CONSTRUCTION ON PUBLIC LAND RESERVED FOR NAVY USE.  THE EQUIPMENT WAS
INTENDED TO BE USED FOR RECREATION BY THE CIVILIAN CONSTRUCTION CREW,
AND, UPON COMPLETION OF CONSTRUCTION, BY THE NAVY.  IN FACT IT WAS USED
ONLY BY SERVICEMEN.  PP. 252, 255. 

(5)  LIQUID PAVING ASPHALT CONSIGNED TO THE CIVIL AERONAUTICS
AUTHORITY FOR USE IN CONSTRUCTING RUNWAYS AT AN AIRPORT IN ALASKA UNDER
A PROGRAM APPROVED BY A JOINT CABINET BOARD AS BEING NECESSARY FOR THE
NATIONAL DEFENSE.  WORK WAS COMMENCED BY A CIVILIAN CONTRACTOR, AND,
AFTER THE SHIPMENT HAD MOVED, WAS TAKEN OVER BY THE ARMY WHICH
THEREAFTER HAD FULL CONTROL OF THE FIELD.  PP. 252, 255. 

2.  ALTHOUGH THE SHIPMENT OF ASPHALT WAS TO A CIVILIAN AGENCY (THE
CIVIL AERONAUTICS AUTHORITY), IT WAS NEVERTHELESS "MILITARY OR NAVAL"
PROPERTY WITHIN THE MEANING OF SEC. 321(A).  PP. 252-253. 

3.  "MILITARY OR NAVAL" PROPERTY WITHIN THE MEANING OF SEC. 321(A) IS
NOT LIMITED TO PROPERTY SHIPPED BY OR UNDER CONTROL OF THE ARMY OR
NAVY, NOR TO PROPERTY PROCURED BY THOSE DEPARTMENTS.  P. 253. 

4.  THE EXCEPTION PRESCRIBED BY SEC. 321(A) IS NOT CONFINED TO
PROPERTY FOR ULTIMATE USE DIRECTLY BY THE ARMED FORCES.  P. 253. 

5.  WITHIN THE MEANING OF SEC. 321(A), AN INTERMEDIATE MANUFACTURING
PHASE CAN NOT BE SAID TO HAVE AN ESSENTIAL "CIVIL" ASPECT, WHEN THE
PRODUCTS OR ARTICLES INVOLVED ARE DESTINED TO SERVE MILITARY OR NAVAL
NEEDS.  IT IS THE DOMINANT PURPOSE FOR WHICH THE MANUFACTURING OR
PROCESSING ACTIVITY IS CARRIED ON THAT IS CONTROLLING.  P. 255. 

6.  DOUBTS AS TO THE MEANING OF A STATUTE WHICH OPERATES AS A GRANT
OF PUBLIC PROPERTY, OR AS A RELINQUISHMENT OF A PUBLIC INTEREST, SHOULD
BE RESOLVED IN FAVOR OF THE GOVERNMENT AND AGAINST THE PRIVATE
CLAIMANT.  P. 257. 

7.  SECTION 321(A), THOUGH ENACTED IN THE INTERESTS OF THE RAILROADS,
CONTINUES LAND-GRANT RATES IN A NARROWER CATEGORY, AND IS TO BE
CONSTRUED IN FAVOR OF THE GOVERNMENT AND AGAINST THE RAILROADS.  PP.
257-258. 

NORTHERN PACIFIC RAILWAY CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

PETITIONER BROUGHT SUIT AGAINST THE UNITED STATES UNDER THE TUCKER
ACT TO RECOVER THE DIFFERENCE BETWEEN COMMERCIAL RATES AND THE LAND
GRANT RATES WHICH IT RECEIVED FOR THE TRANSPORTATION OF GOVERNMENT
PROPERTY.  THE DISTRICT COURT GAVE JUDGMENT FOR THE UNITED STATES.  64
F.SUPP.  1.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  156 F.2D 346. 
THIS COURT GRANTED CERTIORARI.  329 U.S. 701.  AFFIRMED, P. 258. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO UNITED STATES V. POWELL AND UNITED STATES
V. ATLANTIC COAST LINE R. CO., DECIDED THIS DAY, ANTE, P. 238.  THIS
CASE, LIKE THOSE, INVOLVES THE CONSTRUCTION OF THE PROVISION OF SEC.
321(A) OF THE TRANSPORTATION ACT OF 1940 WHICH ENTITLES "MILITARY OR
NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND
NOT FOR CIVIL USE" TO LAND-GRANT RATES.  PETITIONER WAS A LAND-GRANT
ROAD, 13 STAT. 365, 370, AND FOR YEARS CARRIED GOVERNMENT PROPERTY AT
LAND-GRANT RATES.  43 STAT. 477, 486, 10 U.S.C. SEC. 1375.  IT
QUALIFIED TO RECEIVE THE HIGHER RATES AUTHORIZED BY SEC. 321(A) OF THE
TRANSPORTATION ACT OF 1940 BY THE TIMELY FILING OF THE REQUIRED RELEASE
OF LAND-GRANT CLAIMS PURSUANT TO SEC. 321(B) OF THE ACT.  FN1 

THE SHIPMENTS IN CONTROVERSY WERE MADE OVER PETITIONER'S RAILROAD ON
GOVERNMENT BILLS OF LADING IN 1941, 1942, AND 1943.  THEY WERE
ADMITTEDLY GOVERNMENT PROPERTY AT THE TIME OF CARRIAGE.  PETITIONER
SUBMITTED ITS BILLS TO THE GOVERNMENT AT THE PUBLISHED COMMERCIAL
TARIFF RATES.  THE UNITED STATES, CLAIMING THAT UNDER SEC. 321(A) OF
THE TRANSPORTATION ACT EACH SHIPMENT WAS ENTITLED TO MOVE AT LAND-GRANT
RATES, DEDUCTED THE DIFFERENCE BETWEEN THE COMMERCIAL RATES AND THE
LAND-GRANT RATES.  PETITIONER THEREUPON BROUGHT THIS SUIT UNDER THE
TUCKER ACT TO RECOVER THE DEDUCTED SUMS.  THE DISTRICT COURT ENTERED
JUDGMENT FOR THE UNITED STATES ON THE CLAIMS HERE INVOLVED.  64
F.SUPP.  1.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  156 F.2D 346.  THE
CASE IS HERE ON CERTIORARI. 

THE SHIPMENTS INVOLVED FIVE TYPES OF PROPERTY: 

COPPER CABLE.  - COPPER CABLE WAS TRANSPORTED TO TACOMA, WASH., FOR
USE IN THE INSTALLATION OF DEGAUSSING EQUIPMENT (A DEFENSE AGAINST
MAGNETIC MINES) ON A CARGO VESSEL BEING SO BUILT THAT IT MIGHT READILY
BE CONVERTED INTO A MILITARY OR NAVAL AUXILIARY.  THE WORK WAS DONE BY
A CONTRACTOR UNDER CONTRACT WITH THE MARITIME COMMISSION.  THE
DEGAUSSING SPECIFICATIONS WERE FURNISHED BY THE NAVY, WHICH ALSO
FURNISHED THE EQUIPMENT AND BORE THE COST.  THE VESSEL WAS DELIVERED IN
1941 AND WAS OPERATED AS DIRECTED BY THE MARITIME COMMISSION OR THE WAR
SHIPPING ADMINISTRATION.  WHETHER IT OPERATED AS A CARGO VESSEL OR AS A
MILITARY OR NAVAL AUXILIARY DOES NOT APPEAR. 

LUMBER FOR CONSTRUCTION OF MUNITIONS PLANT.  - IN 1942 THE TWIN
CITIES ORDNANCE PLANT WAS BEING CONSTRUCTED IN MINNESOTA BY CONTRACTORS
UNDER THE SUPERVISION OF THE ARMY.  THE PLANT WAS GOVERNMENT OWNED AND
ARMY SPONSORED.  ARMY OFFICERS WERE PROCURING AGENTS FOR THE LUMBER
USED IN THE CONSTRUCTION.  PETITIONER TRANSPORTED LUMBER FOR USE IN THE
CONSTRUCTION.  THE PLANT WAS COMPLETED IN 1943 AND MANUFACTURED
AMMUNITION FOR THE ARMED FORCES. 

LUMBER FOR CONSTRUCTION OF MARINE CORPS PONTONS.  - PETITIONER IN
1943 CARRIED FIR LUMBER TO A PLANT IN MINNESOTA TO BE TREATED, KILN
DRIED, MILLED, AND MANUFACTURED BY A CONTRACTOR INTO PARTS OF
DEMOUNTABLE FLOATING BRIDGES REQUIRED TO MOVE MILITARY PERSONNEL AND
WAR VEHICLES ACROSS WATER BARRIERS.  THE CONSTRUCTION WAS UNDER A
CONTRACT WITH THE MARINE CORPS.  THE MANUFACTURED PRODUCT WAS EITHER
SHIPPED OVERSEAS IN CONNECTION WITH MILITARY OR NAVAL OPERATIONS OR WAS
USED IN CONNECTION WITH THE TRAINING OF COMBAT ENGINEERS. 

BOWLING ALLEYS FOR DUTCH HARBOR.  - PETITIONER MOVED BOWLING ALLEY
EQUIPMENT TO SEATTLE, WASHINGTON, FOR RESHIPMENT TO THE NAVAL AIR BASE,
DUTCH HARBOR, ALASKA.  THE NAVY HAD ENTERED INTO A CONTRACT FOR THE
CONSTRUCTION OF AN AIR BASE AT DUTCH HARBOR ON PUBLIC LAND RESERVED FOR
NAVY USE.  THE PURCHASE AND INSTALLATION OF THE BOWLING ALLEYS WERE
PURSUANT TO THAT CONTRACT AND WERE APPROVED BY THE NAVY OFFICER WHO HAD
SUPERVISION AND CONTROL OF THE CONSTRUCTION PROGRAM.  THE RECREATIONAL
FACILITIES, WHICH INCLUDED THE BOWLING ALLEYS, WERE PLANNED FOR INITIAL
USE BY THE CIVILIAN CONSTRUCTION CREW AND THEN, WHEN CONSTRUCTION WORK
WAS ENDED, BY THE NAVY.  BUT IN FACT THEY WERE USED ONLY BY MEMBERS OF
THE ARMED FORCES. 

LIQUID PAVING ASPHALT FOR COLD BAY, ALASKA, AIRPORT.  - IN 1942
PETITIONER MOVED LIQUID PAVING ASPHALT TO SEATTLE, WASHINGTON, FOR
RESHIPMENT TO ALASKA.  THE ASPHALT WAS FOR USE IN CONSTRUCTING RUNWAYS
AT AN AIRPORT AT COLD BAY UNDER A PROGRAM OF THE CIVIL AERONAUTICS
AUTHORITY APPROVED BY A JOINT CABINET BOARD AS BEING NECESSARY FOR THE
NATIONAL DEFENSE.  WORK WAS COMMENCED BY A CIVILIAN CONTRACTOR AND,
AFTER THE SHIPMENT HAD MOVED, WAS TAKEN OVER BY THE ARMY WHICH
THEREAFTER HAD FULL CONTROL OF THE FIELD. 

IN FOUR OF THE ABOVE INSTANCES THE PROPERTY WAS CONSIGNED TO AN ARMY
OR NAVY OFFICER; IN THE FIFTH, THE SHIPMENT OF LIQUID PAVING ASPHALT,
THE CIVIL AERONAUTICS AUTHORITY WAS THE CONSIGNEE.  AND AS WE HAVE
SAID, THE PROPERTY IN EACH CASE WAS AT THE TIME OF SHIPMENT PROPERTY OF
THE UNITED STATES.  THE QUESTION REMAINS WHETHER WITHIN THE MEANING OF
SEC. 321(A) IT WAS "MILITARY OR NAVAL" PROPERTY AND, IF SO, WHETHER IT
WAS "MOVING FOR MILITARY OR NAVAL" USE. 

THERE IS A SUGGESTION THAT SINCE THE SHIPMENT OF ASPHALT WAS TO A
CIVILIAN AGENCY, THE CIVIL AERONAUTICS AUTHORITY, IT WAS NOT "MILITARY
OR NAVAL" PROPERTY.  THE THEORY IS THAT "MILITARY OR NAVAL" PROPERTY
MEANS ONLY PROPERTY SHIPPED BY OR UNDER CONTROL OF THE ARMY OR NAVY. 

WE SEE NO MERIT IN THAT SUGGESTION.  SECTION 321(A) MAKES NO
REFERENCE TO SPECIFIC AGENCIES OR DEPARTMENTS OF GOVERNMENT.  THE FACT
THAT THE WAR OR NAVY DEPARTMENT DOES THE PROCUREMENT MIGHT, OF COURSE,
CARRY SPECIAL WEIGHT OR BE DECISIVE IN CLOSE CASES.  BUT IT IS WELL
KNOWN THAT PROCUREMENT OF MILITARY SUPPLIES OR WAR MATERIAL IS OFTEN
HANDLED BY AGENCIES OTHER THAN THE WAR AND NAVY DEPARTMENTS. 
PROCUREMENT OF CARGO AND TRANSPORT VESSELS BY THE MARITIME COMMISSION
IS AN OUTSTANDING EXAMPLE.  SEE MERCHANT MARINE ACT OF 1936, SEC. 902,
49 STAT. 2015-2016, AS AMENDED, 46 U.S.C. SEC. 1242.  AND SHORTLY
BEFORE THE TRANSPORTATION ACT OF 1940 WAS ENACTED, CONGRESS BY THE ACT
OF JUNE 25, 1940, 54 STAT. 572, 573-574, AUTHORIZED THE RECONSTRUCTION
FINANCE CORPORATION TO CREATE SUBSIDIARY CORPORATIONS TO PURCHASE AND
PRODUCE EQUIPMENT, SUPPLIES, AND MACHINERY FOR THE MANUFACTURE OF ARMS,
AMMUNITION, AND IMPLEMENTS OF WAR.  AND LATER THAT ACT WAS AMENDED TO
ENABLE THOSE CORPORATIONS TO PURCHASE OR PRODUCE ANY SUPPLY OR ARTICLE
NECESSARY FOR THE NATIONAL DEFENSE OR WAR EFFORT.  ACT OF JUNE 10,
1941, 55 STAT. 248, 249.  AS WE HAVE HELD IN UNITED STATES V. POWELL,
SUPRA, NOT EVERY PURCHASE WHICH FURTHERS THE NATIONAL DEFENSE IS FOR
"MILITARY OR NAVAL" USE WITHIN THE MEANING OF SEC. 321(A).  BUT
PROPERTY MAY FALL WITHIN THAT CATEGORY THOUGH IT IS PROCURED BY
DEPARTMENTS OTHER THAN WAR OR NAVY. 

IT IS ALSO SUGGESTED THAT THE PROPERTY COVERED BY THE EXCEPTION IN
SEC. 321(A) IS CONFINED TO PROPERTY FOR ULTIMATE USE DIRECTLY BY THE
ARMED FORCES.  UNDER THAT VIEW MATERIALS SHIPPED FOR THE CONSTRUCTION
OF VESSELS FOR THE MARITIME COMMISSION AND USED TO SERVICE TROOPS AT
HOME OR ABROAD WOULD NOT BE "MILITARY OR NAVAL" PROPERTY.  WE LIKEWISE
REJECT THAT ARGUMENT.  CIVILIAN AGENCIES MAY SERVICE THE ARMED FORCES
OR ACT AS ADJUNCTS TO THEM.  THE MARITIME COMMISSION IS A GOOD
EXAMPLE.  AN ARMY AND NAVY ON FOREIGN SHORES OR IN FOREIGN WATERS
CANNOT LIVE AND FIGHT WITHOUT A SUPPLY FLEET IN THEIR SUPPORT.  THE
AGENCY, WHETHER CIVIL OR MILITARY, WHICH PERFORMS THAT FUNCTION IS
SERVING THE ARMED FORCES.  THE PROPERTY WHICH IT EMPLOYS IN THAT
SERVICE IS MILITARY OR NAVAL PROPERTY, SERVING A MILITARY OR NAVAL
FUNCTION. 

BUT PETITIONER CONTENDS THAT, EVEN IF THAT IS TRUE, THE CONSTRUCTION
OF VESSELS OR OTHER MILITARY EQUIPMENT OR SUPPLIES IS IN A DIFFERENT
CATEGORY.  IT ARGUES THAT NONE OF THE ARTICLES SHIPPED IN THE PRESENT
CASE WAS MILITARY OR NAVAL, SINCE THEY WERE NOT FURNISHED TO THE ARMED
FORCES FOR THEIR USE.  THEY WERE SUPPLIED, SO THE ARGUMENT RUNS, FOR
MANUFACTURE AND CONSTRUCTION WHICH ARE CIVILIAN PURSUITS AND WHICH WERE
HERE IN FACT PERFORMED BY CIVILIAN CONTRACTORS.  ONLY THE COMPLETED
PRODUCT, NOT THE COMPONENT ELEMENTS, WAS, IN THAT VIEW, FOR MILITARY OR
NAVAL USE. 

MILITARY OR NAVAL PROPERTY MAY MOVE FOR CIVIL USE, AS WHERE ARMY OR
NAVY SURPLUS SUPPLIES ARE SHIPPED FOR SALE TO THE PUBLIC.  BUT IN
GENERAL THE USE TO WHICH THE PROPERTY IS TO BE PUT IS THE CONTROLLING
TEST OF ITS MILITARY OR NAVAL CHARACTER.  PENCILS AS WELL AS RIFLES MAY
BE MILITARY PROPERTY.  INDEED, THE NATURE OF MODERN WAR, ITS
MULTIFARIOUS ASPECTS, THE REQUIREMENTS OF THE MEN AND WOMEN WHO
CONSTITUTE THE ARMED FORCES AND THEIR ADJUNCTS, GIVE MILITARY OR NAVAL
PROPERTY SUCH A BROAD SWEEP AS TO INCLUDE ALMOST ANY TYPE OF PROPERTY. 
MORE THAN ARTICLES ACTUALLY USED BY MILITARY OR NAVAL PERSONNEL IN
COMBAT ARE INCLUDED.  MILITARY OR NAVAL USE INCLUDES ALL PROPERTY
CONSUMED BY THE ARMED FORCES OR BY THEIR ADJUNCTS, ALL PROPERTY WHICH
THEY USE TO FURTHER THEIR PROJECTS, ALL PROPERTY WHICH SERVES THEIR
MANY NEEDS OR WANTS IN TRAINING OR PREPARATION FOR WAR, IN COMBAT, IN
MAINTAINING THEM AT HOME OR ABROAD, IN THEIR OCCUPATION AFTER VICTORY
IS WON.  IT IS THE RELATION OF THE SHIPMENT TO THE MILITARY OR NAVAL
EFFORT THAT IS CONTROLLING UNDER SEC. 321(A).  THE PROPERTY IN QUESTION
MAY HAVE TO BE RECONDITIONED, REPAIRED, PROCESSED OR TREATED IN SOME
OTHER WAY BEFORE IT SERVES THEIR NEEDS.  BUT THAT DOES NOT DETRACT FROM
ITS STATUS AS MILITARY OR NAVAL PROPERTY.  SOUTHERN PACIFIC CO. V.
DEFENSE SUPPLIES CORP., 64 F.SUPP.  605.  WITHIN THE MEANING OF SEC.
321(A) AN INTERMEDIATE MANUFACTURING PHASE CANNOT BE SAID TO HAVE AN
ESSENTIAL "CIVIL" ASPECT, WHEN THE PRODUCTS OR ARTICLES INVOLVED ARE
DESTINED TO SERVE MILITARY OR NAVAL NEEDS.  IT IS THE DOMINANT PURPOSE
FOR WHICH THE MANUFACTURING OR PROCESSING ACTIVITY IS CARRIED ON THAT
IS CONTROLLING. 

MEASURED BY THAT TEST, THERE CAN BE NO DOUBT THAT THE FIVE TYPES OF
PROPERTY INVOLVED IN THE PRESENT LITIGATION WERE "MILITARY OR NAVAL"
PROPERTY OF THE UNITED STATES "MOVING FOR MILITARY OR NAVAL AND NOT FOR
CIVIL USE" WITHIN THE MEANING OF SEC. 321(A).  THE LUMBER FOR THE
PONTONS, THE ASPHALT FOR THE AIRFIELD, THE LUMBER FOR THE AMMUNITION
PLANT WERE USED IN ARMY OR NAVY PROJECTS DIRECTLY RELATED TO COMBAT
PREPARATION OR TO ACTUAL COMBAT.  COPPER CABLE FOR THE CARGO VESSEL,
THOUGH FARTHER REMOVED FROM THAT CATEGORY, WAS WELL WITHIN THE
DEFINITION OF "MILITARY OR NAVAL" PROPERTY.  IT, TOO, WAS A DEFENSIVE
WEAPON.  BEYOND THAT IT WAS PURCHASED BY THE NAVY DEPARTMENT AND
CONSIGNED TO ONE OF ITS OFFICERS.  IT WAS SUPPLIED PURSUANT TO NAVY
SPECIFICATIONS; AND THE SHIP ON WHICH IT WAS INSTALLED WAS BEING
PREPARED FOR POSSIBLE ULTIMATE USE BY THE NAVY.  THE BOWLING ALLEYS
WERE ALSO WELL WITHIN THE STATUTORY CLASSIFICATION.  THE NEEDS OF THE
ARMED FORCES PLAINLY INCLUDE RECREATIONAL FACILITIES.  THE MORALE AND
PHYSICAL CONDITION OF COMBAT FORCES ARE AS IMPORTANT TO THE SUCCESSFUL
PROSECUTION OF A WAR AS THEIR EQUIPMENT.  THE FACT THAT THE BOWLING
ALLEYS WERE PLANNED FOR INITIAL USE OF CIVILIAN WORKERS MAKES NO
DIFFERENCE.  IT IS THE NATURE OF THE WORK BEING DONE, NOT THE STATUS OF
THE PERSON HANDLING THE MATERIALS, THAT IS DECISIVE.  SUPPLIES TO
MAINTAIN CIVILIANS REPAIRING ARMY OR NAVY PLANES IS A CASE IN POINT. 
THE DOMINANT PURPOSE OF THE PROJECT IN THIS CASE WAS THE SAME WHETHER
CIVILIANS OR MILITARY OR NAVY PERSONNEL DID THE ACTUAL WORK. 

PETITIONER CONTENDS THAT IF CONGRESS INTENDED TO INCLUDE IN "MILITARY
OR NAVAL PROPERTY" ARTICLES FOR USE IN THE MANUFACTURE OF IMPLEMENTS OF
WAR, IT WOULD HAVE SAID SO.  IT SEEKS SUPPORT FOR THAT POSITION FROM
OTHER CONGRESSIONAL ENACTMENTS UNDER WHICH SUCH MATERIALS WERE EXCLUDED
BECAUSE NOT MENTIONED  FN2  OR WERE INCLUDED BY SPECIFIC REFERENCE N3. 
WE CAN FIND, HOWEVER, LITTLE SUPPORT FOR PETITIONER'S CONTENTION IN
THAT ARGUMENT.  APART FROM THE DIFFERENT WORDING OF THOSE ACTS AND THE
DIFFERENT ENDS THEY SERVED, THERE IS ONE DECISIVE AND CONTROLLING
CIRCUMSTANCE.  WE HAVE MORE IN SEC. 321(A) THAN A DECLARATION THAT
"MILITARY OR NAVAL" PROPERTY IS ENTITLED TO LAND-GRANT RATES.  CONGRESS
WENT FURTHER AND DREW THE LINE BETWEEN PROPERTY MOVING FOR "MILITARY OR
NAVAL" USE AND PROPERTY MOVING FOR "CIVIL" USE.  AS WE HAVE SAID, THE
CONTROLLING TEST IS THE USE TO WHICH THE PROPERTY IS DEDICATED OR
DEVOTED.  THE FACT THAT CONGRESS DID NOT DEFINE WHAT WAS A "MILITARY OR
NAVAL" USE AS DISTINGUISHED FROM A "CIVIL" USE IS UNIMPORTANT.  THE
CLASSIFICATION MADE BY CONGRESS UNDER THIS ACT, UNLIKE THAT MADE UNDER
THE ACTS ON WHICH PETITIONER RELIES, WAS ALL-INCLUSIVE NOT PARTIAL. 
WHAT IS MILITARY OR NAVAL IS CONTRASTED TO WHAT IS CIVIL.  THE NORMAL
CONNOTATION OF ONE SERVES TO DELIMIT OR EXPAND THE OTHER.  IT IS IN
THAT CONTEXT THAT "MILITARY OR NAVAL" MUST BE CONSTRUED.    PETITIONER
ALSO CONTENDS THAT SEC. 321(A) IS A REMEDIAL ENACTMENT WHICH SHOULD BE
LIBERALLY CONSTRUED SO AS TO PERMIT NO EXCEPTION WHICH IS NOT
REQUIRED.  CF. PIEDMONT & N. RY. CO. V. INTERSTATE COMMERCE COMMISSION,
286 U.S. 299, 311-312.  BUT IT IS A FAMILIAR RULE THAT WHERE THERE IS
ANY DOUBT AS TO THE MEANING OF A STATUTE WHICH "OPERATES AS A GRANT OF
PUBLIC PROPERTY TO AN INDIVIDUAL, OR THE RELINQUISHMENT OF A PUBLIC
INTEREST," THE DOUBT SHOULD BE RESOLVED IN FAVOR OF THE GOVERNMENT AND
AGAINST THE PRIVATE CLAIMANT.  SLIDELL V. GRANDJEAN, 111 U.S. 412,
437.  SEE SOUTHERN RY. CO. V. UNITED STATES, 322 U.S. 72, 76.  THAT
RULE HAS BEEN APPLIED IN CONSTRUING THE REDUCED RATE CONDITIONS OF THE
LAND-GRANT LEGISLATION.  SOUTHERN PACIFIC CO. V. UNITED STATES, 307
U.S. 393, 401; SOUTHERN RY. CO. V. UNITED STATES, SUPRA.  THAT
PRINCIPLE IS APPLICABLE HERE WHERE THE CONGRESS, BY WRITING INTO SEC.
321(A) AN EXCEPTION, RETAINED FOR THE UNITED STATES AN ECONOMIC
PRIVILEGE OF GREAT VALUE.  THE FACT THAT THE RAILROADS, INCLUDING
PETITIONER, FILED RELEASES OF THEIR LAND-GRANT CLAIMS IN ORDER TO
OBTAIN THE BENEFITS OF SEC. 321(A) IS NOW RELIED UPON AS CONSTITUTING
FULL CONSIDERATION FOR THE RATE CONCESSION.  IT IS ACCORDINGLY ARGUED
THAT THE RAILROADS MADE A CONTRACT WITH THE UNITED STATES WHICH SHOULD
BE GENEROUSLY CONSTRUED.  CF. RUSSELL V. SEBASTIAN, 233 U.S. 195, 205. 
THE ORIGINAL LAND-GRANTS RESULTED IN A CONTRACT.  BURKE V. SOUTHERN
PACIFIC R. CO., 234 U.S. 669, 680.  YET, AS WE HAVE SEEN, THEY WERE
NONETHELESS PUBLIC GRANTS STRICTLY CONSTRUED AGAINST THE GRANTEE.  THE
PRESENT ACT, THOUGH PASSED IN THE INTERESTS OF THE RAILROADS, WAS IN
ESSENCE MERELY A CONTINUATION OF LAND-GRANT RATES IN A NARROWER
CATEGORY.  THEREFORE, IT, TOO, MUST BE CONSTRUED LIKE ANY OTHER PUBLIC
GRANT.  AFFIRMED. 

FN1  THIS RELEASE WAS FOLLOWED BY A SETTLEMENT OF THE LITIGATION
BEFORE THIS COURT IN UNITED STATES V. NORTHERN PACIFIC R. CO., 311 U.S.
317.  SEE UNITED STATES V. NORTHERN PACIFIC R. CO., 41 F.SUPP.  273; S.
DOC. NO. 48, 77TH CONG., 1ST SESS. 

FN2  THE EMBARGO AGAINST "ARMS OR MUNITIONS OF WAR" AUTHORIZED BY THE
JOINT RESOLUTION OF MARCH 14, 1912(SEE 37 STAT. 1733), WAS HELD NOT TO
INCLUDE MACHINERY FOR THE CONSTRUCTION OF A MUNITIONS PLANT.  32 OP.
ATTY. GEN. 132. 

FN3  THUS THE ACT OF JULY 2, 1940, 54 STAT. 712, 714, 50 U.S.C. APP.
SEC. 701, AUTHORIZED THE PRESIDENT TO PROHIBIT OR CURTAIL "THE
EXPORTATION OF ANY MILITARY EQUIPMENT OR MUNITIONS, OR COMPONENT PARTS
THEREOF, OR MACHINERY, TOOLS, OR MATERIAL, OR SUPPLIES NECESSARY FOR
THE MANUFACTURE, SERVICING, OR OPERATION THEREOF  ..." 

THE ACT OF NOVEMBER 30, 1940, 54 STAT. 1220, AMENDING THE
ANTISABOTAGE ACT, DEFINED "NATIONAL-DEFENSE MATERIAL" AS INCLUDING
"ARMS, ARMAMENT, AMMUNITION, LIVESTOCK, STORES OF CLOTHING, FOOD,
FOODSTUFFS, FUEL, SUPPLIES, MUNITIONS, AND ALL OTHER ARTICLES OF
WHATEVER DESCRIPTION AND ANY PART OR INGREDIENT THEREOF," WHICH THE
UNITED STATES INTENDED TO USE IN THE NATIONAL DEFENSE. 

THE ACT OF OCTOBER 16, 1941, 55 STAT. 742, AUTHORIZED THE PRESIDENT
TO REQUISITION THE FOLLOWING TYPES OF PROPERTY FOR THE DEFENSE OF THE
UNITED STATES:  "MILITARY OR NAVAL EQUIPMENT, SUPPLIES, OR MUNITIONS,
OR COMPONENT PARTS THEREOF, OR MACHINERY, TOOLS, OR MATERIALS NECESSARY
FOR THE MANUFACTURE, SERVICING, OR OPERATION OF SUCH EQUIPMENT,
SUPPLIES, OR MUNITIONS  ..." 
..END :











WALLING V. PORTLAND TERMINAL CO., 330 U.S. 148 


NO. 336.  ARGUED JANUARY 17, 1947.  - DECIDED FEBRUARY 17, 1947.  - 155
F.2D 215, AFFIRMED. 


FOR MANY YEARS A RAILROAD HAS GIVEN TO PROSPECTIVE YARD BRAKEMEN A
PRACTICAL COURSE OF TRAINING LASTING SEVEN OR EIGHT DAYS.  UNDER THE
SUPERVISION OF A YARD CREW, EACH TRAINEE FIRST LEARNS ROUTINE
ACTIVITIES BY OBSERVATION AND IS THEN GRADUALLY PERMITTED TO DO ACTUAL
WORK UNDER CLOSE SCRUTINY.  HIS ACTIVITIES DO NOT DISPLACE ANY OF THE
REGULAR EMPLOYEES, WHO DO MOST OF THE WORK THEMSELVES AND MUST STAND
IMMEDIATELY BY TO SUPERVISE WHAT THE TRAINEE DOES.  THE TRAINEE'S WORK
DOES NOT EXPEDITE THE RAILROAD'S BUSINESS, BUT MAY, AND SOMETIMES DOES,
ACTUALLY IMPEDE AND RETARD IT.  TRAINEES WHO COMPLETE THE COURSE
SATISFACTORILY AND ARE CERTIFIED AS COMPETENT ARE LISTED AS ELIGIBLE
FOR EMPLOYMENT WHEN NEEDED.  PRIOR TO OCTOBER 1, 1943, TRAINEES
RECEIVED NO PAY OR ALLOWANCE OF ANY KIND; BUT, SINCE THAT DATE, THOSE
WHO PROVE THEIR COMPETENCY AND ARE LISTED AS ELIGIBLE FOR EMPLOYMENT
ARE GIVEN A RETROACTIVE ALLOWANCE OF $4 PER DAY FOR THEIR TRAINING
PERIOD.  HELD: 

1.  SUCH A TRAINEE IS NOT AN "EMPLOYEE" WITHIN THE MEANING OF SEC.
3(E) OF THE FAIR LABOR STANDARDS ACT.  PP. 152-153. 

2.  SECTION 14, WHICH AUTHORIZES THE WAGE AND HOUR ADMINISTRATOR TO
PERMIT THE EMPLOYMENT OF LEARNERS AND APPRENTICES AT LESS THAN THE
MINIMUM WAGE PRESCRIBED BY THE ACT, IS INAPPLICABLE TO SUCH TRAINEES;
SINCE IT RELATES ONLY TO LEARNERS WHO ARE IN "EMPLOYMENT" AND CARRIES
NO IMPLICATION THAT ALL INSTRUCTORS MUST EITHER GET A PERMIT OR PAY
MINIMUM WAGES TO ALL LEARNERS.  PP. 151-152. 

WALLING, WAGE AND HOUR ADMINISTRATOR, V. PORTLAND TERMINAL CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

THE WAGE AND HOUR ADMINISTRATOR SUED A RAILROAD TO ENJOIN ALLEGED
VIOLATIONS OF SECS. 15(A)(2) AND 15(A)(5) OF THE FAIR LABOR STANDARDS
ACT, 52 STAT. 1060.  THE DISTRICT COURT DENIED THE INJUNCTION.  61
F.SUPP.  345.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  155 F.2D 215. 
THIS COURT GRANTED CERTIORARI.  329 U.S. 696.  AFFIRMED, P. 153. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BROUGHT BY PETITIONER AGAINST RESPONDENT IN A
FEDERAL DISTRICT COURT TO ENJOIN AN ALLEGED VIOLATION OF SECS. 15(A)(2)
AND 15(A)(5) OF THE FAIR LABOR STANDARDS ACT, 52 STAT. 1060, 1068, 29
U.S.C. SECS. 215(A)(2), (5) WHICH REQUIRES AS TO THE EMPLOYEES COVERED
BY THE ACT THE MAINTENANCE OF RECORDS CONCERNING THEIR WAGES AND THE
PAYMENT TO THEM OF MINIMUM WAGES.  THE DISTRICT COURT DENIED THE
INJUNCTION ON THE GROUND THAT THE PARTICULAR PERSONS INVOLVED WERE NOT
EMPLOYEES, 61 F.SUPP.  345, AND THE CIRCUIT COURT OF APPEALS AFFIRMED
ON THE SAME GROUND, ONE JUDGE DISSENTING.  155 F.2D 215.  SEE ALSO
WALLING V. JACKSONVILLE TERMINAL CO., 148 F.2D 768.  CERTIORARI WAS
GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTIONS INVOLVED TO THE
ADMINISTRATION OF THE ACT.  329 U.S. 696.  THE FINDINGS OF FACT BY THE
DISTRICT COURT, APPROVED BY THE CIRCUIT COURT OF APPEALS, AND NOT
CHALLENGED HERE, SHOW: 

FOR MANY YEARS THE RESPONDENT RAILROAD HAS GIVEN A COURSE OF
PRACTICAL TRAINING TO PROSPECTIVE YARD BRAKEMEN.  THIS TRAINING IS A
NECESSARY REQUISITE TO ENTRUSTING THEM WITH THE IMPORTANT WORK BRAKEMEN
MUST DO.  AN APPLICANT FOR SUCH JOBS IS NEVER ACCEPTED UNTIL HE HAS HAD
THIS PRELIMINARY TRAINING, THE AVERAGE LENGTH OF WHICH IS SEVEN OR
EIGHT DAYS.  IF ACCEPTED FOR THE TRAINING COURSE, AN APPLICANT IS
TURNED OVER TO A YARD CREW FOR INSTRUCTION.  UNDER THIS SUPERVISION, HE
FIRST LEARNS THE ROUTINE ACTIVITIES BY OBSERVATION, AND IS THEN
GRADUALLY PERMITTED TO DO ACTUAL WORK UNDER CLOSE SCRUTINY.  HIS
ACTIVITIES DO NOT DISPLACE ANY OF THE REGULAR EMPLOYEES, WHO DO MOST OF
THE WORK THEMSELVES AND MUST STAND IMMEDIATELY BY TO SUPERVISE WHATEVER
THE TRAINEES DO. THE APPLICANT'S WORK DOES NOT EXPEDITE THE COMPANY
BUSINESS, BUT MAY, AND SOMETIMES DOES, ACTUALLY IMPEDE AND RETARD IT.
IF THESE TRAINEES COMPLETE THEIR COURSE OF INSTRUCTION SATISFACTORILY
AND ARE CERTIFIED AS COMPETENT, THEIR NAMES ARE INCLUDED IN A LIST FROM
WHICH THE COMPANY CAN DRAW WHEN THEIR SERVICES ARE NEEDED.  UNLESS THEY
COMPLETE THE TRAINING AND ARE CERTIFIED AS COMPETENT, THEY ARE NOT
PLACED ON THE LIST.  THOSE WHO ARE CERTIFIED AND NOT IMMEDIATELY PUT TO
WORK CONSTITUTE A POOL OF QUALIFIED WORKMEN AVAILABLE TO THE RAILROAD
WHEN NEEDED.  TRAINEES RECEIVED NO PAY OR ALLOWANCE OF ANY KIND PRIOR
TO OCTOBER 1, 1943.  AT THAT TIME, HOWEVER, THE RESPONDENT AND THE
COLLECTIVE BARGAINING AGENT, THE BROTHERHOOD OF RAILROAD TRAINMEN,
AGREED THAT, FOR THE WAR PERIOD, MEN WHO PROVED THEIR COMPETENCY AND
WERE THEREAFTER LISTED AS ACCEPTED AND AVAILABLE FOR WORK AS BRAKEMEN
SHOULD BE GIVEN A RETROACTIVE ALLOWANCE OF $4 PER DAY FOR THEIR
TRAINING PERIOD.  THE FINDINGS DO NOT INDICATE THAT THE RAILROAD EVER
UNDERTOOK TO PAY, OR THE TRAINEES EVER EXPECTED TO RECEIVE, ANY
REMUNERATION FOR THE TRAINING PERIOD OTHER THAN THE CONTINGENT
ALLOWANCE. 

THE FAIR LABOR STANDARDS ACT FIXES THE MINIMUM WAGE THAT EMPLOYERS
MUST PAY ALL EMPLOYEES WHO WORK IN ACTIVITIES COVERED BY THE ACT. 
THERE IS NO QUESTION BUT THAT THESE TRAINEES DO WORK IN THE KIND OF
ACTIVITIES COVERED BY THE ACT.  CONSEQUENTLY, IF THEY ARE EMPLOYEES
WITHIN THE ACT'S MEANING, THEIR EMPLOYMENT IS GOVERNED BY THE MINIMUM
WAGE PROVISIONS.  BUT IN DETERMINING WHO ARE "EMPLOYEES" UNDER THE ACT,
COMMON LAW EMPLOYEE CATEGORIES OR EMPLOYER-EMPLOYEE CLASSIFICATIONS
UNDER OTHER STATUTES ARE NOT OF CONTROLLING SIGNIFICANCE.  SEE N.L.R.B.
V. HEARST PUBLICATIONS, 322 U.S. 111, 128-129.  THIS ACT CONTAINS ITS
OWN DEFINITIONS, COMPREHENSIVE ENOUGH TO REQUIRE ITS APPLICATION TO
MANY PERSONS AND WORKING RELATIONSHIPS WHICH, PRIOR TO THIS ACT, WERE
NOT DEEMED TO FALL WITHIN AN EMPLOYER-EMPLOYEE CATEGORY.  SEE UNITED
STATES V. ROSENWASSER, 323 U.S. 360, 362-363. 

WITHOUT DOUBT THE ACT COVERS TRAINEES, BEGINNERS, APPRENTICES, OR
LEARNERS IF THEY ARE EMPLOYED TO WORK FOR AN EMPLOYER FOR
COMPENSATION.  THIS IS SHOWN BY SEC. 14 OF THE ACT WHICH EMPOWERS THE
ADMINISTRATOR TO GRANT SPECIAL CERTIFICATES FOR THE EMPLOYMENT OF
LEARNERS, APPRENTICES AND HANDICAPPED PERSONS AT LESS THAN THE GENERAL
MINIMUM WAGE* .  THE LANGUAGE OF THIS SECTION AND ITS LEGISLATIVE
HISTORY REVEAL ITS PURPOSE.  MANY PERSONS SUFFER FROM SUCH PHYSICAL
HANDICAPS, AND MANY OTHERS HAVE SO LITTLE EXPERIENCE IN PARTICULAR
VOCATIONS THAT THEY ARE UNABLE TO GET AND HOLD JOBS AT STANDARD WAGES. 
CONSEQUENTLY, TO IMPOSE A MINIMUM WAGE AS TO THEM MIGHT DEPRIVE THEM OF
ALL OPPORTUNITY TO SECURE WORK, THEREBY DEFEATING ONE OF THE ACT'S
PURPOSES, WHICH WAS TO INCREASE OPPORTUNITIES FOR GAINFUL EMPLOYMENT. 
ON THE OTHER HAND, TO HAVE WRITTEN A BLANKET EXEMPTION OF ALL OF THEM
FROM THE ACT'S PROVISIONS MIGHT HAVE LEFT OPEN A WAY FOR WHOLESALE
EVASIONS.  FLEXIBILITY OF WAGE RATES FOR THEM WAS THEREFORE PROVIDED
UNDER THE SAFEGUARD OF ADMINISTRATIVE PERMITS.  THIS SECTION PLAINLY
MEANS THAT EMPLOYERS WHO HIRE BEGINNERS, LEARNERS, OR HANDICAPPED
PERSONS, AND EXPRESSLY OR IMPLIEDLY AGREE TO PAY THEM COMPENSATION,
MUST PAY THEM THE PRESCRIBED MINIMUM WAGE, UNLESS A PERMIT NOT TO PAY
SUCH MINIMUM HAS BEEN OBTAINED FROM THE ADMINISTRATOR.  ON THE OTHER
HAND, THE SECTION CARRIES NO IMPLICATION THAT ALL INSTRUCTORS MUST
EITHER GET A PERMIT OR PAY MINIMUM WAGES TO ALL LEARNERS; THE SECTION
ONLY RELATES TO LEARNERS WHO ARE IN "EMPLOYMENT."  AND THE MEANING OF
THAT TERM IS FOUND IN OTHER SECTIONS OF THE ACT. 

*"THE ADMINISTRATOR, TO THE EXTENT NECESSARY IN ORDER TO PREVENT
CURTAILMENT OF OPPORTUNITIES FOR EMPLOYMENT, SHALL BY REGULATIONS OR BY
ORDERS PROVIDE FOR (1) THE EMPLOYMENT OF LEARNERS, OF APPRENTICES, AND
OF MESSENGERS EMPLOYED EXCLUSIVELY IN DELIVERING LETTERS AND MESSAGES,
UNDER SPECIAL CERTIFICATES ISSUED PURSUANT TO REGULATIONS OF THE
ADMINISTRATOR, AT SUCH WAGES LOWER THAN THE MINIMUM WAGE APPLICABLE
UNDER SECTION 6 AND SUBJECT TO SUCH LIMITATIONS AS TO TIME, NUMBER,
PROPORTION, AND LENGTH OF SERVICE AS THE ADMINISTRATOR SHALL PRESCRIBE,
..."  SEC. 14(1) FAIR LABOR STANDARDS ACT, 52 STAT. 1060, 1068, 29
U.S.C. SEC. 214(1).  SEE ALSO SEC. 13(A)(7).  SEC. 14(2) PROVIDES THAT
HANDICAPPED PERSONS MAY BE EMPLOYED AT LESS THAN MINIMUM WAGES WHERE
THE ADMINISTRATOR PERMITS.  52 STAT. 1060, 1068, 29 U.S.C. SEC.
214(2). 

PERMIT TO WORK" AND SEC. 3(E) DEFINES "EMPLOYEE" AS "ANY INDIVIDUAL
EMPLOYED BY AN EMPLOYER."  THE DEFINITION "SUFFER OR PERMIT TO WORK"
WAS OBVIOUSLY NOT INTENDED TO STAMP ALL PERSONS AS EMPLOYEES WHO,
WITHOUT ANY EXPRESS OR IMPLIED COMPENSATION AGREEMENT, MIGHT WORK FOR
THEIR OWN ADVANTAGE ON THE PREMISES OF ANOTHER.  OTHERWISE, ALL
STUDENTS WOULD BE EMPLOYEES OF THE SCHOOL OR COLLEGE THEY ATTENDED, AND
AS SUCH ENTITLED TO RECEIVE MINIMUM WAGES.  SO ALSO, SUCH A
CONSTRUCTION WOULD SWEEP UNDER THE ACT EACH PERSON WHO, WITHOUT PROMISE
OR EXPECTATION OF COMPENSATION, BUT SOLELY FOR HIS PERSONAL PURPOSE OR
PLEASURE, WORKED IN ACTIVITIES CARRIED ON BY OTHER PERSONS EITHER FOR
THEIR PLEASURE OR PROFIT.  BUT THERE IS NO INDICATION FROM THE
LEGISLATION NOW BEFORE US THAT CONGRESS INTENDED TO OUTLAW SUCH
RELATIONSHIPS AS THESE.  THE ACT'S PURPOSE AS TO WAGES WAS TO INSURE
THAT EVERY PERSON WHOSE EMPLOYMENT CONTEMPLATED COMPENSATION SHOULD NOT
BE COMPELLED TO SELL HIS SERVICES FOR LESS THAN THE PRESCRIBED MINIMUM
WAGE.  THE DEFINITIONS OF "EMPLOY" AND OF "EMPLOYEE" ARE BROAD ENOUGH
TO ACCOMPLISH THIS.  BUT, BROAD AS THEY ARE, THEY CANNOT BE INTERPRETED
SO AS TO MAKE A PERSON WHOSE WORK SERVES ONLY HIS OWN INTEREST AN
EMPLOYEE OF ANOTHER PERSON WHO GIVES HIM AID AND INSTRUCTION.  HAD
THESE TRAINEES TAKEN COURSES IN RAILROADING IN A PUBLIC OR PRIVATE
VOCATIONAL SCHOOL, WHOLLY DISASSOCIATED FROM THE RAILROAD, IT COULD NOT
REASONABLY BE SUGGESTED THAT THEY WERE EMPLOYEES OF THE SCHOOL WITHIN
THE MEANING OF THE ACT.  NOR COULD THEY, IN THAT SITUATION, HAVE BEEN
CONSIDERED AS EMPLOYEES OF THE RAILROAD MERELY BECAUSE THE SCHOOL'S
GRADUATES WOULD CONSTITUTE A LABOR POOL FROM WHICH THE RAILROAD COULD
LATER DRAW ITS EMPLOYEES.  THE FAIR LABOR STANDARDS ACT WAS NOT
INTENDED TO PENALIZE RAILROADS FOR PROVIDING, FREE OF CHARGE, THE SAME
KIND OF INSTRUCTION AT A PLACE AND IN A MANNER WHICH WOULD MOST GREATLY
BENEFIT THE TRAINEES. 

ACCEPTING THE UNCHALLENGED FINDINGS HERE THAT THE RAILROADS RECEIVE
NO "IMMEDIATE ADVANTAGE" FROM ANY WORK DONE BY THE TRAINEES, WE HOLD
THAT THEY ARE NOT EMPLOYEES WITHIN THE ACT'S MEANING.  WE HAVE NOT
IGNORED THE ARGUMENT THAT SUCH A HOLDING MAY OPEN UP A WAY FOR EVASION
OF THE LAW.  BUT THERE ARE NEITHER FINDINGS NOR CHARGES HERE THAT THESE
ARRANGEMENTS WERE EITHER CONCEIVED OR CARRIED OUT IN SUCH A WAY AS TO
VIOLATE EITHER THE LETTER OR THE SPIRIT OF THE MINIMUM WAGE LAW.  WE
THEREFORE HAVE NO CASE BEFORE US IN WHICH AN EMPLOYER HAS EVASIVELY
ACCEPTED THE SERVICES OF BEGINNERS AT PAY LESS THAT THE LEGAL MINIMUM
WITHOUT HAVING OBTAINED PERMITS FROM THE ADMINISTRATOR.  IT WILL BE
TIME ENOUGH TO PASS UPON SUCH EVASIONS WHEN IT IS CONTENDED THAT THEY
HAVE OCCURRED.  AFFIRMED. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IN THIS CASE, AS WELL AS IN THE COMPANION CASE, NO. 335, POST, P.
158, WE HAVE A JUDGMENT OF TWO COURTS BASED ON FINDINGS WITH AMPLE
EVIDENCE TO WARRANT SUCH FINDINGS.  IT WAS SOLELY ON THIS GROUND THAT I
AGREED TO AFFIRMANCE IN TENNESSEE COAL CO. V. MUSCODA LOCAL, 321 U.S.
590, AND ON THIS BASIS ALONE I THINK THE JUDGMENTS IN BOTH THESE CASES,
NOS. 335 AND 336, SHOULD BE AFFIRMED. 

MR. JUSTICE JACKSON, CONCURRING. 

I, TOO, WOULD AFFIRM THIS JUDGMENT.  BUT MY REASON IS NOT THAT STATED
IN THE COURT'S OPINION. 

I HAVE NEVER UNDERSTOOD THAT THE FAIR LABOR STANDARDS ACT WAS
INTENDED OR FITTED TO REGULATE LABOR RELATIONS, EXCEPT TO SUBSTITUTE
ITS OWN MINIMUM WAGE RATE FOR ANY THAT WAS SUBSTANDARD AND AN OVERTIME
RATE FOR HOURS ABOVE THE NUMBER IT SET.  IT, OF COURSE, LIKE OTHER
STATUTES, CAN AND SHOULD BE APPLIED TO STRIKE DOWN SHAM AND ARTIFICE
INVENTED TO EVADE ITS COMMANDS. 

BUT THE COMPLEX LABOR RELATIONS OF THIS COUNTRY, WHICH VARY FROM
LOCALITY TO LOCALITY, FROM INDUSTRY TO INDUSTRY, AND PERHAPS EVEN FROM
UNIT TO UNIT OF THE SAME INDUSTRY, WERE LEFT TO BE REGULATED BY
COLLECTIVE BARGAINING UNDER THE NATIONAL LABOR RELATIONS ACT.  IT WOULD
BE EASY TO DEMONSTRATE FROM THE ACT'S LEGISLATIVE HISTORY THAT SUCH WAS
THE INTENTION OF CONGRESS AND THAT IT HAD GOOD GROUNDS TO BELIEVE THIS
THE TENOR OF THE LEGISLATION.  ORGANIZED EMPLOYEES ON ONE SIDE, FREE OF
EMPLOYER DOMINATION OR COERCION, AND EMPLOYERS ON THE OTHER SIDE BEST
KNOW THE NEEDS AND CUSTOMS OF THEIR TRADES; THEY KNOW SOMETHING OF THE
STRAIN THEIR INDUSTRY CAN STAND; AND AFTER ALL, IT IS THEY WHO FEEL THE
EFFECTS.  GIVEN THUS THE MACHINERY TO CHANGE CUSTOMS THAT HAD OUTLIVED
THEIR TIME OR, IN THE ALTERNATIVE, TO ADJUST WAGE RATES TO TAKE ACCOUNT
OF THOSE CUSTOMS, IT WAS, I THINK, OUR DUTY TO PAY AT LEAST SOME
DEFERENCE TO THE CUSTOMS AND CONTRACTS OF AN INDUSTRY AND NOT TO APPLY
THE FAIR LABOR STANDARDS ACT TO PUT INDUSTRY AND LABOR IN A LEGAL
STRAIT JACKET OF OUR OWN DESIGN. 

FROM THE BEGINNING IT WAS APPARENT THAT THERE WERE BUT TWO WAYS OF
GIVING REAL FORCE AND MEANING TO THIS ACT WITHOUT THROWING ALL INDUSTRY
AND LABOR INTO STRIFE AND LITIGATION.  ONE WAS TO GIVE DECISIVENESS AND
INTEGRITY IN BORDERLINE CASES TO COLLECTIVE BARGAINING.  CF. J.I. CASE
CO. V. N.L.R.B., 321 U.S. 332; ORDER OF RAILROAD TELEGRAPHERS V.
RAILWAY EXPRESS AGENCY, INC., 321 U.S. 342.  THE OTHER WAS TO GIVE
STRENGTH AND, WHERE POSSIBLE, DECISIVENESS IN DOUBTFUL CASES TO THE
STUDIED RULINGS OF THE ADMINISTRATOR, AS THE COURT ALSO AT MOMENTS
SEEMED INCLINED TO DO. ARMOUR & CO. V. WANTOCK, 323 U.S. 126; SKIDMORE
V. SWIFT & CO., 323 U.S. 134.  BOTH OF THESE CONSIDERATIONS AS BASES
FOR DECISION WERE THROWN TO THE FOUR WINDS IN JEWELL RIDGE CORP. V.
UNITED MINE WORKERS, 325 U.S. 161. 

THIS COURT HAS FORECLOSED EVERY MEANS BY WHICH ANY CLAIM, HOWEVER
DUBIOUS, UNDER THIS STATUTE OR UNDER THE COURT'S ELASTIC AND SOMEWHAT
UNPREDICTABLE INTERPRETATIONS OF IT, CAN SAFELY OR FINALLY BE SETTLED,
EXCEPT BY LITIGATION TO FINAL JUDGMENT.  WE HAVE HELD THE INDIVIDUAL
EMPLOYEE INCOMPETENT TO COMPROMISE OR RELEASE ANY PART OF WHATEVER
CLAIM HE MAY HAVE.  BROOKLYN SAVINGS BANK V. O'NEIL, 324 U.S. 697; CF.
D.A. SCHULTE, INC. V. GANGI, 328 U.S. 108.  THEN WE REFUSED TO FOLLOW
THE TERMS OF AGREEMENTS COLLECTIVELY BARGAINED.  JEWELL RIDGE CORP. V.
UNITED MINE WORKERS, 325 U.S. 161.  NO KIND OF AGREEMENT BETWEEN THE
PARTIES IN INTEREST SETTLING BORDERLINE CASES IN A WAY SATISFACTORY TO
THEMSELVES, HOWEVER FAIRLY ARRIVED AT, IS TODAY WORTH THE PAPER IT IS
WRITTEN ON.  INTERMINABLE LITIGATION, STIMULATED BY A CONTINGENT REWARD
TO ATTORNEYS, IS NECESSITATED BY THE PRESENT STATE OF THE COURT'S
DECISIONS.    IN THE VIEW THAT THE JUDICIAL FUNCTION SHOULD PAY SOME
DEFERENCE TO FINDINGS OF FACT AS TO CUSTOMS OF INDUSTRY IN APPLYING
THIS ACT, I FAVORED AFFIRMANCE OF THE AWARD TO MINERS IN THE CASE OF
TENNESSEE COAL CO. V. MUSCODA LOCAL, 321 U.S. 590, BECAUSE TWO LOWER
COURTS HAD MADE FINDINGS OF FACT THAT UNDER THE CONTRACTS AND
CONDITIONS IN THOSE PARTICULAR IRON MINES THE EMPLOYEES WERE ENTITLED
TO HAVE COUNTED AS WORKING TIME CERTAIN PERIODS SPENT IN TRAVEL.  THE
JUDGMENT WAS SUPPORTED, TOO, BY THE RULINGS OF THE ADMINISTRATOR. 
THOSE REASONS WERE REJECTED BY A MAJORITY OF THE COURT WHICH WENT ON TO
LAY DOWN RULES OF DECISION WHICH TAKE NO ACCOUNT OF CONTRACT OR
CUSTOM. 

THEN CAME THE CASE OF JEWELL RIDGE CORP. V. UNITED MINE WORKERS, 325
U.S. 161, IN WHICH THE RELATIONSHIPS WERE FIXED BY A DEEP-ROOTED CUSTOM
IN THE INDUSTRY OF WHICH BOTH PARTIES TOOK ACCOUNT AND EMBODIED IN
COLLECTIVE BARGAINING AGREEMENTS AND WHICH WAS REFLECTED IN THE
ADMINISTRATOR'S RULINGS MADE AT THE REQUEST OF THE VERY UNION THAT WAS
REPUDIATING THEM.  BUT A MAJORITY OF THE COURT AGAIN REJECTED THE
CONTENTION THAT THIS ACT WAS NOT INTENDED TO INTERFERE WITH LONG
ESTABLISHED CUSTOMS WHICH ENTERED INTO COLLECTIVE WAGE AGREEMENTS, AND
IT REAFFIRMED A FLAT DECLARATION AS FOLLOWS: 

"BUT IN ANY EVENT IT IS IMMATERIAL THAT THERE MAY HAVE BEEN A PRIOR
CUSTOM OR CONTRACT NOT TO CONSIDER CERTAIN WORK WITHIN THE COMPASS OF
THE WORKWEEK OR NOT TO COMPENSATE EMPLOYEES FOR CERTAIN PORTIONS OF
THEIR WORK.  THE FAIR LABOR STANDARDS ACT WAS NOT DESIGNED TO CODIFY OR
PERPETUATE THOSE CUSTOMS AND CONTRACTS WHICH ALLOW AN EMPLOYER TO CLAIM
ALL OF AN EMPLOYEE'S TIME WHILE COMPENSATING HIM ONLY FOR A PART OF IT.
CONGRESS INTENDED, INSTEAD, TO ACHIEVE A UNIFORM NATIONAL POLICY OF
GUARANTEEING COMPENSATION FOR ALL WORK OR EMPLOYMENT ENGAGED IN BY
EMPLOYEES COVERED BY THE ACT.  ANY CUSTOM OR CONTRACT FALLING SHORT OF
THAT BASIC POLICY, LIKE AN AGREEMENT TO PAY LESS THAN THE MINIMUM WAGE
REQUIREMENTS, CANNOT BE UTILIZED TO DEPRIVE EMPLOYEES OF THEIR
STATUTORY RIGHTS."  325 U.S. AT 167; TENNESSEE COAL CO. V. MUSCODA
LOCAL, 321 U.S. 590, 602. 

THE SAME DOCTRINE WAS THEN PRESSED INTO OTHER FIELDS OF INDUSTRY BY
THE DECISION IN ANDERSON V. MT. CLEMENS POTTERY CO., 328 U.S. 680,
WHICH DECLARED CERTAIN TIME SPENT ON THE PREMISES OF THE POTTERY
COMPANY MUST BE COMPENSATED "REGARDLESS OF CONTRARY CUSTOM OR
CONTRACT."  328 U.S. AT 692. 

THE COURT EVIDENTLY STANDS UPON AND REITERATES THE BASIC DOCTRINE
THAT THE ACT IS ONE TO REGULATE INDUSTRY LABOR RELATIONS, FOR IT SAYS:
"THIS ACT CONTAINS ITS OWN DEFINITIONS, COMPREHENSIVE ENOUGH TO REQUIRE
ITS APPLICATION TO MANY PERSONS AND WORKING RELATIONSHIPS, WHICH PRIOR
TO THIS ACT, WERE NOT DEEMED TO FALL WITHIN AN EMPLOYER-EMPLOYEE
CATEGORY."  FN1 

THE CLAIMANTS NOW BEFORE US ASK TO PARTICIPATE IN THE JUDICIAL
LARGESS.  THEY BELIEVE THAT THEY ARE ENTITLED TO BE PAID FOR THE TIME
THAT THEY SPENT ON THE RAILROAD'S PREMISES, UNDER THE RAILROAD'S
DIRECTION, PERFORMING RAILROAD LABOR, IN ORDER TO LEARN TO QUALIFY FOR
RAILROAD JOBS WHEN THE RAILROAD MIGHT NEED THEM.  THE COURT DOES NOT
EVEN ATTEMPT TO DISTINGUISH THE FOREGOING CASES ON WHICH THEIR CLAIM IS
BASED. 

THIS CASE AGAIN REQUIRES US TO MAKE A CHOICE BETWEEN GROUNDS OF
DECISION SIMILAR TO THE CHOICE THAT WAS OPEN TO US IN THE CITED CASES
AND I THINK IT IS TIMELY FOR THE COURT TO RECONSIDER ITS APPROACH TO
CASES UNDER THIS ACT.  WE MAY PURPORT TO FIND GROUNDS FOR DENYING THESE
CLAIMS IN AN INTERPRETATION OF THE ACT, ALTHOUGH CONGRESS NEVER
INTENDED TO REGULATE THE SUBJECT AT ALL.  OR WE CAN USE AS VALID GROUND
FOR DENYING THESE CLAIMS THE CONCURRENT FINDINGS BY TWO LOWER COURTS OF
A GOOD FAITH UNDERSTANDING OF THE PARTIES, FOLLOWING A LONG-ESTABLISHED
CUSTOM OF AN INDUSTRY WHOSE LABOR RELATIONS HAVE LONG BEEN SUBJECT TO
COLLECTIVE BARGAINING.  I CONCUR ONLY ON THE LATTER GROUND. 

FN1  I DID NOT UNDERSTAND WHEN I CONCURRED IN UNITED STATES V.
ROSENWASSER, 323 U.S. 360, THAT IT SO HELD.  IT APPLIED THE ACT TO
PIECEWORK EMPLOYEES.  PIECEWORK EMPLOYMENT IS A WELL-KNOWN FORM OF
EMPLOYMENT THAT HAS EXISTED PERHAPS AS LONG AS EMPLOYMENT AT A FIXED
HOURLY OR DAILY WAGE.  I UNDERSTOOD, AND STILL UNDERSTAND, THE
ROSENWASSER CASE TO HOLD ONLY THAT THIS FORM OF EMPLOYMENT IS NOT
EXCLUDED FROM THE TERMS OF THE ACT. 
..END :













WALLING V. NASHVILLE, C. & ST. L.R. CO., 330 U.S. 158 


NO. 335.  ARGUED JANUARY 17, 1947.  - DECIDED FEBRUARY 17, 1947.  - 155
F.2D 1016, AFFIRMED. 


1.  THE WAGE AND HOUR ADMINISTRATOR SUED TO ENJOIN ALLEGED VIOLATIONS
OF SECS. 15(A)(2) AND 15(A)(5) OF THE FAIR LABOR STANDARDS ACT,
REQUIRING THAT MINIMUM WAGES BE PAID TO EMPLOYEES COVERED BY THE ACT
AND THAT APPROPRIATE RECORDS BE KEPT CONCERNING THEIR EMPLOYMENT AND
PAY.  THE TRIAL COURT FOUND THAT, AS TO ONE GROUP OF ALLEGED EMPLOYEES,
THE DEFENDANT RAILROAD "FOR SEVERAL YEARS PAST HAS BEEN COMPLYING WITH
THE ACT AS TO THEM AND APPARENTLY INTENDS IN GOOD FAITH TO DO SO IN THE
FUTURE," AND DENIED THE INJUNCTION.  THAT FINDING WAS NOT CHALLENGED
HERE; AND NO ARGUMENT WAS MADE HERE THAT IT WAS NOT ADEQUATE TO SUPPORT
DENIAL OF THE RELIEF GRANTED.  HELD: DENIAL OF THE INJUNCTION AS TO
THIS GROUP IS SUSTAINED.  P. 159. 

2.  UNDER FACTS PRACTICALLY IDENTICAL WITH THOSE INVOLVED IN WALLING
V. PORTLAND TERMINAL CO., ANTE, P. 148, AND FOR THE REASONS THERE
STATED.  PERSONS IN TRAINING TO BECOME YARD AND MAIN LINE FIREMEN,
BRAKEMEN, AND SWITCHMEN FOR A RAILROAD, HELD NOT TO BE "EMPLOYEES"
WITHIN THE MEANING OF SEC. 3(E) OF THE FAIR LABOR STANDARDS ACT.  P.
160. 

WALLING, WAGE AND HOUR ADMINISTRATOR, V. NASHVILLE, CHATTANOOGA & ST.
LOUIS RAILWAY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE WAGE AND HOUR ADMINISTRATOR SUED TO ENJOIN ALLEGED VIOLATIONS OF
SECS. 15(A)(2) AND 15(A)(5) OF THE FAIR LABOR STANDARDS ACT, 52 STAT.
1060, 1068.  THE DISTRICT COURT DENIED THE INJUNCTION.  60 F.SUPP. 
1004.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  155 F.2D 1016.  THIS
COURT GRANTED CERTIORARI.  329 U.S. 696.  AFFIRMED, P. 160. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, UNITED
STATES DEPARTMENT OF LABOR, FILED THIS ACTION IN A FEDERAL DISTRICT
COURT TO ENJOIN ALLEGED VIOLATIONS BY THE RESPONDENT RAILROAD OF SECS.
15(A)(2) AND 15(A)(5) OF THE FAIR LABOR STANDARDS ACT.  52 STAT. 1060,
1068.  THESE SECTIONS REQUIRE THAT MINIMUM WAGES BE PAID TO EMPLOYEES
COVERED BY THE ACT AND THAT APPROPRIATE RECORDS BE KEPT CONCERNING
THEIR EMPLOYMENT AND PAY.  THE RAILROAD WAS CHARGED WITH HAVING
VIOLATED THE ACT WITH REGARD TO TWO TYPES OF ALLEGED EMPLOYEES:  FIRST,
PERSONS IN TRAINING TO BECOME YARD AND MAIN LINE FIREMEN, BRAKEMEN, AND
SWITCHMEN; SECOND, OTHERS IN TRAINING TO BECOME CLERKS, STENOGRAPHERS,
CALLERS, MESSENGERS, AND OTHER SIMILAR GENERAL MISCELLANEOUS WORKERS. 
THE DISTRICT COURT HELD THAT THE FIRST GROUP WERE NOT "EMPLOYEES" AND
THEREFORE WERE NOT COVERED BY THE ACT.  ON THIS GROUND ALONE THE
INJUNCTION WAS DENIED AS TO THEM.  IT ALSO DENIED RELIEF AS TO THE
SECOND GROUP, CLERKS, ETC., PARTLY ON THIS SAME GROUND.  ANOTHER GROUND
FOR DENYING RELIEF AS TO THE SECOND GROUP WAS THE COURT'S FINDING THAT
THE RAILROAD "FOR SEVERAL YEARS PAST HAS BEEN COMPLYING WITH THE ACT AS
TO THEM, AND APPARENTLY INTENDS IN GOOD FAITH TO DO SO IN THE FUTURE." 
60 F.SUPP.  1004, 1007-1008.  THE CIRCUIT COURT OF APPEARLS AFFIRMED. 
155 F.2D 1016, ONE JUDGE DISSENTING.  WE GRANTED CERTIORARI BECAUSE OF
THE IMPORTANCE OF THE QUESTIONS DECIDED.  329 U.S. 696. 

THE FINDING OF THE DISTRICT COURT THAT THE RAILROAD HAD BEEN
COMPLYING WITH THE ACT IN GOOD FAITH IN ITS BUSINESS RELATIONS WITH THE
TRAINEE CLERKS, STENOGRAPHERS, ETC. IS NOT CHALLENGED.  NO ARGUMENT IS
HERE MADE THAT THIS IS NOT ADEQUATE SUPPORT FOR DENIAL OF THE RELIEF
GRANTED AS TO THIS SECOND GROUP.  UNDER THESE CIRCUMSTANCES, WE AFFIRM
THE COURT'S ACTION IN DENYING AN INJUNCTION TO ENJOIN VIOLATIONS OF THE
ACT AS TO THESE TRAINEES.  WE THEREFORE DO NOT REACH THE QUESTION AS TO
WHETHER THIS GROUP AS A WHOLE OR ANY OF THE PERSONS IN IT WERE OR WERE
NOT EMPLOYEES UNDER THE ACT. 

THE SOLE GROUND FOR DENYING RELIEF AS TO THE PERSONS TRAINING TO
BECOME FIREMEN, BRAKEMEN, AND SWITCHMEN WAS THAT THEY WERE NOT
EMPLOYEES.  THE FINDINGS OF FACT HERE AS TO THE TRAINING OF THESE
TRAINEES ARE IN ALL RELEVANT RESPECTS PRACTICALLY IDENTICAL WITH THE
FINDINGS OF FACT IN WALLING V. PORTLAND TERMINAL CO., THIS DAY DECIDED,
ANTE, P. 148.  THESE FINDINGS OF FACT ARE NOT CHALLENGED.  FOR THE
REASONS SET OUT IN THAT OPINION WE HOLD THAT THE CIRCUIT COURT OF
APPEALS WAS NOT IN ERROR IN HOLDING THAT THE PERSONS RECEIVING TRAINING
IN ORDER TO BECOME QUALIFIED FOR EMPLOYMENT AS FIREMEN, BRAKEMEN, AND
SWITCHMEN, ARE NOT EMPLOYEES WITHIN THE MEANING OF THE FAIR LABOR
STANDARDS ACT.  AFFIRMED. 
..END :















BOZZA V. UNITED STATES, 330 U.S. 160 


NO. 190.  ARGUED JANUARY 7, 1947.  - DECIDED FEBRUARY 17, 1947.  - 155
F.2D 592, AFFIRMED IN PART AND REVERSED IN PART. 


1.  IN A TRIAL ON AN INDICTMENT FOR MAKING AND FERMENTING MASH FOR THE
PRODUCTION OF ALCOHOL IN VIOLATION OF 26 U.S.C. SEC. 2834, THE EVIDENCE
SHOWED THAT C ALONE HANDLED AND MIXED THE INGREDIENTS OF THE MASH AND
THERE WAS NO EVIDENCE TO INDICATE THAT B EVER TOOK ANY PART IN, OR
AIDED AND ABETTED, THIS PARTICULAR PART OF THE PROCESS OF OPERATING AN
ILLICIT DISTILLERY OR THAT HE WAS EVER IN THE PART OF THE PREMISES
WHERE THE INGREDIENTS WERE STORED AND THE MASH WAS MADE, ALTHOUGH HE
HELPED TO OPERATE THE STILL IN A DIFFERENT PART OF THE PREMISES AND TO
TRANSPORT THE PRODUCT.  HELD:  THE GOVERNMENT'S CONCESSION THAT THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF B IS ACCEPTED.  P.
163. 

2.  IN A TRIAL ON AN INDICTMENT FOR HAVING POSSESSION AND CUSTODY OF
AN ILLICIT STILL IN VIOLATION OF 26 U.S.C. SEC. 2810(A), THE EVIDENCE
SHOWED THAT THE DEFENDANT HELPED TO OPERATE THE STILL; BUT THERE WAS NO
EVIDENCE SHOWING THAT HE EVER EXERCISED ANY CONTROL OVER THE STILL,
AIDED IN THE EXERCISE OF ANY SUCH CONTROL, OR ACTED AS A CARETAKER,
WATCHMAN, LOOKOUT OR IN ANY SIMILAR CAPACITY CALCULATED TO FACILITATE
ITS CUSTODY OR POSSESSION.  HELD:  THE GOVERNMENT'S CONCESSION THAT THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN HIS CONVICTION IS ACCEPTED.  PP.
163-164. 

3.  IN A TRIAL ON AN INDICTMENT FOR OPERATING "THE BUSINESS OF
DISTILLER  ...  WITH INTENT WILFULLY TO DEFRAUD" THE GOVERNMENT OF
TAXES IN VIOLATION OF 26 U.S.C. SEC. 2833(A), THE EVIDENCE SHOWED THAT
C SECRETLY CARRIED ON THE BUSINESS OF A DISTILLER IN AN APPARENTLY
ABANDONED FARMHOUSE, THAT B ASSISTED HIM, AND THAT THE PRODUCTS WERE
TRANSPORTED TO A CITY IN A CAR WHICH FOLLOWED ANOTHER CAR, SOMETIMES
B'S. HELD:  THE EVIDENCE WAS SUFFICIENT TO SUSTAIN B'S CONVICTION.  PP.
164-165. 

(A)  UNDER 18 U.S.C. SEC. 550, ONE WHO AIDS AND ABETS ANOTHER TO
COMMIT A CRIME IS GUILTY AS A PRINCIPAL.  P. 164. 

(B)  THE JURY COULD PROPERLY INFER THAT ONE HELPING TO OPERATE A
SECRET DISTILLERY IN THE MANNER HERE SHOWN KNEW THAT IT WAS OPERATED
WITH INTENT TO DEFRAUD THE GOVERNMENT OF ITS TAXES.  PP. 164-165. 

4.  HAVING BEEN CONVICTED OF A CRIME CARRYING A MANDATORY MINIMUM
SENTENCE OF FINE AND IMPRISONMENT, DEFENDANT WAS SENTENCED TO
IMPRISONMENT ONLY AND PLACED IN TEMPORARY DETENTION AWAITING
TRANSPORTATION TO A PENITENTIARY.  FIVE HOURS LATER, THE JUDGE RE
CALLED HIM, CALLED ATTENTION TO THE MANDATORY PROVISION FOR FINE AND
IMPRISONMENT, AND SENTENCED HIM TO BOTH.  HELD: THIS DID NOT CONSTITUTE
DOUBLE JEOPARDY CONTRARY TO THE CONSTITUTION.  PP. 165-167. 

BOZZA V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

PETITIONER WAS CONVICTED ON FIVE COUNTS OF AN INDICTMENT FOR
VIOLATING THE INTERNAL REVENUE LAWS IN CONNECTION WITH THE OPERATION OF
A STILL.  THE CIRCUIT COURT OF APPEALS REVERSED ON TWO COUNTS AND
AFFIRMED ON THREE COUNTS.  155 F.2D 592.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 698.  REVERSED ON TWO COUNTS AND AFFIRMED ON ONE
COUNT, P. 167. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER AND ONE CHIRICHILLO WERE CONVICTED IN A FEDERAL
DISTRICT COURT ON ALL COUNTS OF A FIVE-COUNT INDICTMENT AGAINST THEM
WHICH CHARGED VIOLATION OF THE INTERNAL REVENUE LAWS IN CONNECTION WITH
THE OPERATION OF A STILL.  THE COURT OF APPEALS REVERSED PETITIONER'S
CONVICTION ON COUNTS FOUR AND FIVE BECAUSE OF INSUFFICIENT EVIDENCE,
BUT AFFIRMED AS TO COUNTS ONE, TWO, AND THREE.  155 F.2D 592.  WE
GRANTED CERTIORARI.  329 U.S. 698.  COUNT ONE CHARGED THAT THE
DEFENDANTS HAD CARRIED ON "THE BUSINESS OF DISTILLER  ...  WITH INTENT
WILFULLY TO DEFRAUD THE ...  UNITED STATES OF THE TAX ON  ...  SPIRITS
SO DISTILLED  ..."  IN VIOLATION OF 26 U.S.C. SEC. 2833(A).  COUNT TWO
CHARGED THEM WITH HAVING HAD POSSESSION AND CUSTODY OF THE STILL IN
VIOLATION OF 26 U.S.C. SEC. 2810(A).  COUNT THREE CHARGED THAT THEY HAD
MADE AND FERMENTED MASH FOR THE PRODUCTION OF ALCOHOL IN VIOLATION OF
26 U.S.C. SEC. 2834.  IT IS ARGUED THAT THE EVIDENCE WAS INSUFFICIENT
TO SUPPORT ANY OF THE THREE COUNTS HERE AT ISSUE.  THE GOVERNMENT
CONCEDES ITS INSUFFICIENCY AS TO COUNTS TWO AND THREE. 

THERE WAS TESTIMONY TO SHOW THE FOLLOWING:  CHIRICHILLO RENTED A
FARMHOUSE UNDER AN ASSUMED NAME AND INSTALLED A 300-GALLON STILL WITH
ALL EQUIPMENT NECESSARY TO FERMENT MASH AND DISTILL ALCOHOL.  THE STILL
WAS OPERATED DAY AND NIGHT.  CHIRICHILLO HIMSELF MIXED THE INGREDIENTS
TO MAKE THE MASH IN THE ATTIC OF THE 2 1/2-STORY FRAME BUILDING, BUT
THE ALCOHOL DISTILLATION WAS CARRIED ON IN ANOTHER PART OF THE
BUILDING.  PETITIONER WAS AT THE HOUSE TWO OR THREE TIMES A WEEK.  WHEN
THERE HE TOOK INSTRUCTIONS FROM CHIRICHILLO AND HELPED HIM IN THE
OPERATION OF THE STILL; HE HELPED MANUFACTURE THE ALCOHOL.  WHEN
CHIRICHILLO CARRIED HIS PRODUCTS TO NEWARK, THE CAR IN WHICH HE CARRIED
THE ILLICITLY DISTILLED ALCOHOL WOULD FOLLOW ALONG BEHIND ANOTHER CAR -
SOMETIMES PETITIONER'S, SOMETIMES ANOTHER HELPER'S.  THE FARMHOUSE
WHERE THE ILLICIT BUSINESS WAS CARRIED ON APPEARED FROM THE OUTSIDE TO
BE DESERTED; THE WINDOWS WERE WITHOUT SHADES AND THE HOUSE HAD BEEN
PRACTICALLY STRIPPED OF FURNITURE. 

WE ACCEPT THE GOVERNMENT'S CONCESSION THAT THE EVIDENCE FAILS TO SHOW
THAT THIS PETITIONER HAD MADE, OR HELPED TO MAKE, THE MASH AS CHARGED
IN COUNT THREE.  ALL OF THE EVIDENCE SHOWED THAT CHIRICHILLO ALONE
HANDLED AND MIXED THE INGREDIENTS OF THE MASH, AND THERE IS NOTHING
WHATEVER TO INDICATE THAT THE PETITIONER EVER TOOK ANY PART IN, OR
AIDED AND ABETTED, THIS PARTICULAR PART OF THE UNLAWFUL PROCESS IN ANY
MANNER, OR, INDEED, THAT HE WAS EVER IN OR AROUND THE ATTIC WHERE THE
MASH WAS MADE FROM INGREDIENTS STORED THERE.  THE INTERNAL REVENUE
STATUTES HAVE BROKEN DOWN THE VARIOUS STEPS AND PHASES OF A CONTINUOUS
ILLICIT DISTILLING BUSINESS AND MADE EACH OF THEM A SEPARATE OFFENSE. 
THUS, THESE STATUTES HAVE CLEARLY CARVED OUT THE CONDUCT OF MAKING MASH
AS A SEPARATE OFFENSE, THEREBY DISTINGUISHING IT FROM THE OTHER
OFFENSES INVOLVING OTHER STEPS AND PHASES OF THE DISTILLING BUSINESS. 
CONSEQUENTLY, TESTIMONY TO PROVE THIS SEPARATE OFFENSE OF MAKING MASH
MUST POINT DIRECTLY TO CONDUCT WITHIN THE NARROW MARGINS WHICH THE
STATUTE ALONE DEFINES.  ONE WHO NEITHER ENGAGES IN THE CONDUCT
SPECIFICALLY PROHIBITED, NOR AIDS AND ABETS IT, DOES NOT VIOLATE THE

THE SUFFICIENCY OF THE EVIDENCE AS TO COUNT TWO WHICH CHARGED THAT
THE PETITIONER HAD CUSTODY OR POSSESSION OF THE STILL IS A CLOSER
QUESTION.  IT MIGHT BE POSSIBLE THAT PETITIONER'S HELPING TO MAKE THE
ALCOHOL AIDED AND ABETTED IN ITS "CUSTODY OR POSSESSION."  BUT THAT
WOULD BE A VERY STRAINED INFERENCE UNDER ANY CIRCUMSTANCES.  HERE AGAIN
THE STATUTES TREAT CUSTODY OR POSSESSION AS A WHOLLY DISTINCT OFFENSE. 
YET THERE WAS NO TESTIMONY THAT THE PETITIONER EVER EXERCISED, OR AIDED
THE EXERCISE OF, ANY CONTROL OVER THE DISTILLERY.  HIS PARTICIPATION IN
CARRYING THE FINISHED PRODUCT BY CAR DOES NOT FIT THE CATEGORY OF
"CUSTODY AND POSSESSION" SO NEARLY AS IT RESEMBLES THE TRANSPORTATION
OF ILLEGAL LIQUOR, 26 U.S.C. SEC. 2803 - AN OFFENSE WHICH THE CIRCUIT
COURT OF APPEALS HAS FOUND THE EVIDENCE INSUFFICIENT TO PROVE.  NOR WAS
THERE ANY TESTIMONY THAT THE PETITIONER ACTED IN ANY OTHER CAPACITY
CALCULATED TO FACILITATE THE CUSTODY OR POSSESSION, SUCH AS, FOR
ILLUSTRATION, SERVICE AS A CARETAKER, WATCHMAN, LOOKOUT, OR IN SOME
OTHER SIMILAR CAPACITY.  UNDER THESE CIRCUMSTANCES, WE ACCEPT THE
GOVERNMENT'S CONCESSION THAT A JUDGMENT OF GUILTY SHOULD NOT HAVE BEEN
RENDERED ON THE SECOND COUNT. 

WE THINK THERE WAS ADEQUATE EVIDENCE TO SUPPORT A FINDING OF GUILT ON
THE FIRST COUNT WHICH CHARGED OPERATION OF THE BUSINESS OF DISTILLING
TO DEFRAUD THE GOVERNMENT OF TAXES.  THERE WAS CERTAINLY AMPLE EVIDENCE
TO SHOW THAT CHIRICHILLO CARRIED ON THE BUSINESS OF A DISTILLER AND
THAT THE PETITIONER HELPED HIM TO DO IT.  18 U.S.C. SEC. 550 PROVIDES
THAT ONE WHO AIDS AND ABETS ANOTHER TO COMMIT A CRIME IS GUILTY AS A
PRINCIPAL.  CONSEQUENTLY, THE JURY HAD A RIGHT TO FIND, AS IT DID, THAT
THE PETITIONER AND CHIRICHILLO WERE EQUALLY GUILTY OF OPERATING THE
BUSINESS OF THE DISTILLERY.  SEE UNITED STATES V. JOHNSON, 319 U.S.
503, 515, 518. 

BUT, IT IS ARGUED, THERE WAS NO EVIDENCE THAT THE PETITIONER ACTED
WITH KNOWLEDGE THAT THE DISTILLERY BUSINESS WAS CARRIED ON WITH AN
INTENT TO DEFRAUD THE GOVERNMENT OF ITS TAXES.  THE SAME EVIDENCE AS TO
KNOWLEDGE OF THIS GUILTY PURPOSE, HOWEVER, THAT APPLIED TO CHIRICHILLO
WAS ALMOST, IF NOT QUITE, EQUALLY PERSUASIVE AGAINST BOTH DEFENDANTS. 
PETITIONER ASSISTED IN THE MANUFACTURE OF ALCOHOL IN CHIRICHILLO'S
STILL WHICH WAS OPERATED UNDER CONDITIONS OF SECRETIVENESS IN AN
APPARENTLY ABANDONED FARMHOUSE.  THE FINISHED ALCOHOL WAS CARRIED TO
NEWARK IN A CAR WHICH FOLLOWED ANOTHER CAR, SOMETIMES THE PETITIONER'S.
THE MEMBERS OF THE JURY COULD PROPERLY DRAW ON THEIR OWN EXPERIENCE
AND OBSERVATIONS THAT LAWFUL STILLS, UNLIKE THE STILL IN WHICH
PETITIONER WORKED, USUALLY ARE NOT OPERATED CLANDESTINELY AND DO NOT
DELIVER THEIR PRODUCTS IN THE FASHION EMPLOYED HERE.  THE MEMBERS OF
THE JURY WERE NOT PRECLUDED FROM DRAWING INFERENCES AS TO FRAUDULENT
PURPOSES FROM THESE CIRCUMSTANCES, NOR WERE THEY COMPELLED TO BELIEVE
THAT THIS PETITIONER WAS OBLIVIOUS OF THE PURPOSES OF WHAT WENT ON
AROUND HIM.  MEN IN THE JURY BOX, LIKE MEN ON THE STREET, CAN CONCLUDE
THAT A PERSON WHO ACTIVELY HELPS TO OPERATE A SECRET DISTILLERY KNOWS
THAT HE IS HELPING TO VIOLATE GOVERNMENT REVENUE LAWS.  THAT IS A WELL
KNOWN OBJECT OF AN ILLICIT DISTILLERY.  DOUBTLESS FEW WHO EVER WORKED
IN SUCH A PLACE, OR EVEN HEARD ABOUT ONE, WOULD FAIL TO UNDERSTAND THE
CRY:  "THE REVENUERS ARE COMING."  WE HOLD THAT THE VERDICT OF GUILTY
ON THE FIRST COUNT MUST STAND. 

THE ONLY STATUTE FOR VIOLATION OF WHICH PETITIONER'S CONVICTION IS
SUSTAINED BY US CARRIES A MINIMUM MANDATORY SENTENCE OF FINE OF ONE
HUNDRED DOLLARS AND IMPRISONMENT, 26 U.S.C. SEC. 2833(A).  IN
ANNOUNCING SENTENCE AT A MORNING SESSION, THE TRIAL JUDGE MENTIONED
IMPRISONMENT ONLY.  THEREAFTER THE PETITIONER WAS TAKEN BRIEFLY TO THE
U.S. MARSHAL'S OFFICE AND THEN TO A LOCAL FEDERAL DETENTION JAIL
AWAITING TRANSPORTATION TO THE PENITENTIARY WHERE HE WAS FINALLY TO BE
CONFINED.  BUT ABOUT FIVE HOURS AFTER THE SENTENCE WAS ANNOUNCED, THE
JUDGE RECALLED THE PETITIONER AND, ACCORDING TO STIPULATION, STATED IN
THE PRESENCE OF PETITIONER AND HIS COUNSEL THAT "IN THE IMPOSITION OF
SENTENCE THIS MORNING  ...  IT HAS BEEN CALLED TO MY ATTENTION THAT
THERE ARE CERTAIN MANDATORY FINES AND PENALTIES WHICH I OMITTED TO
IMPOSE.  FOR THE RECORD NOW MINIMUM MANDATORY FINES AND PENALTIES WILL
BE IMPOSED."  THUS A ONE HUNDRED DOLLAR FINE WAS FIXED, AS REQUIRED BY
LAW, ALONG WITH THE IMPRISONMENT SENTENCE.  PETITIONER CHARGES THAT
THIS ACTION CONSTITUTED DOUBLE JEOPARDY FORBIDDEN BY THE FEDERAL
CONSTITUTION. 

IT IS WELL ESTABLISHED THAT A SENTENCE WHICH DOES NOT COMPLY WITH THE
LETTER OF THE CRIMINAL STATUTE WHICH AUTHORIZES IT IS SO ERRONEOUS THAT
IT MAY BE SET ASIDE ON APPEAL, REYNOLDS V. UNITED STATES, 98 U.S. 145,
168-169; MURPHY V. MASSACHUSETTS, 177 U.S. 155, 157, OR IN HABEAS
CORPUS PROCEEDINGS.  IN RE BONNER, 151 U.S. 242.  BUT IN THOSE CASES IT
WAS RECOGNIZED THAT AN EXCESSIVE SENTENCE SHOULD BE CORRECTED, EVEN
THOUGH THE PRISONER HAD ALREADY SERVED PART OF HIS TERM, NOT BY
ABSOLUTE DISCHARGE OF THE PRISONER, BUT BY AN APPROPRIATE AMENDMENT OF
THE INVALID SENTENCE BY THE COURT OF ORIGINAL JURISDICTION, AT LEAST
DURING THE TERM OF COURT IN WHICH THE INVALID SENTENCE WAS IMPOSED. 
FN1  CF. DE BENQUE V. UNITED STATES, 66 APP. D.C. 36, 85 F.2D 202.  IN
THE LIGHT OF THESE CASES, THE FACT THAT PETITIONER HAS BEEN TWICE
BEFORE THE JUDGE FOR SENTENCING AND IN A FEDERAL PLACE OF DETENTION
DURING THE FIVE-HOUR INTERIM CANNOT BE SAID TO CONSTITUTE DOUBLE
JEOPARDY AS WE HAVE HERETOFORE CONSIDERED IT.  PETITIONER CONTENDS,
HOWEVER, THAT THESE CASES ARE INAPPLICABLE HERE BECAUSE CORRECTION OF
THIS SENTENCE SO AS TO MAKE IT LAWFUL INCREASES HIS PUNISHMENT.  CF.
UNITED STATES V. BENZ, 282 U.S. 304, 309.  IF THIS INADVERTENT ERROR
CANNOT BE CORRECTED IN THE MANNER USED HERE BY THE TRIAL COURT, NO
VALID AND ENFORCEABLE SENTENCE CAN BE IMPOSED AT ALL.  CF. JORDAN V.
UNITED STATES, 60 F.2D 4, 6, WITH BARROW V. UNITED STATES, 54 APP. D.C.
128, 295 F. 949.  THIS COURT HAS REJECTED THE "DOCTRINE THAT A
PRISONER, WHOSE GUILT IS ESTABLISHED, BY A REGULAR VERDICT, IS TO
ESCAPE PUNISHMENT ALTOGETHER, BECAUSE THE COURT COMMITTED AN ERROR IN
PASSING THE SENTENCE."  IN RE BONNER, SUPRA AT 260.  THE CONSTITUTION
DOES NOT REQUIRE THAT SENTENCING SHOULD BE A GAME IN WHICH A WRONG MOVE
BY THE JUDGE MEANS IMMUNITY FOR THE PRISONER.  SEE KING V. UNITED
STATES, 69 APP. D.C. 10, 15, 98 F.2D 291, 296.  IN THIS CASE THE COURT
"ONLY SET ASIDE WHAT IT HAD NO AUTHORITY TO DO AND SUBSTITUTED)
DIRECTIONS REQUIRED BY THE LAW TO BE DONE UPON THE CONVICTION OF THE
OFFENDER."  IN RE BONNER, SUPRA AT 260.  IT DID NOT TWICE PUT
PETITIONER IN JEOPARDY FOR THE SAME OFFENSE.  FN2  THE SENTENCE, AS
CORRECTED, IMPOSES A VALID PUNISHMENT FOR AN OFFENSE INSTEAD OF AN
INVALID PUNISHMENT FOR THAT OFFENSE. 

OTHER CONTENTIONS HERE DO NOT MERIT OUR DISCUSSION.  THE JUDGMENT AS
TO COUNT ONE IS AFFIRMED.  THE JUDGMENT IS REVERSED AS TO COUNTS TWO
AND THREE.  IT IS SO ORDERED. 

FN1  COMPARE RULE 45C, FEDERAL RULES OF CRIMINAL PROCEDURE. 

FN2  IN EX PARTE LANGE, 18 WALL.  163, RELIED ON BY PETITIONER HHER,
THE DEFENDANT HAD BEEN SENTENCED TO FINE AND IMPRISONMENT FOR VIOLATION
OF A STATUTE WHICH AUTHORIZED A SENTENCE ONLY OF FINE OR IMPRISONMENT. 
SINCE HE HAD PAID HIS FINE AND THEREFORE SUFFERED PUNISHMENT UNDER A
VALID SENTENCE, IT WAS HELD THAT HIS SENTENCE HAD BEEN "EXECUTED BY
FULL SATISFACTION OF ONE OF THE ALTERNATIVE PENALTIES OF THE LAW  ..." 
MURPHY V. MASSACHUSETTS, SUPRA AT 160.  THEREFORE, LANGE'S PLEA, THAT
THE TRIAL COURT COULD NOT CORRECT THE SENTENCE WITHOUT CAUSING HIM TO
SUFFER DOUBLE PUNISHMENT, WAS SUSTAINED.  CF. IN RE BRADLEY, 318 U.S.
50.  BUT HERE THE PETITIONER HAD NOT SUFFERED ANY LAWFUL PUNISHMENT
UNTIL THE COURT HAD ANNOUNCED THE FULL MANDATORY SENTENCE OF
IMPRISONMENT AND FINE. 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, AND MR. JUSTICE RUTLEDGE
DISSENTING AS TO THE AFFIRMANCE OF THE JUDGMENT ON COUNT ONE. 

WE ARE OF THE VIEW THAT TO CONVICT ONE AS AN AIDER AND ABETTER IN
ENGAGING IN OR CARRYING ON A DISTILLERY BUSINESS WITH INTENT "TO
DEFRAUD" THE UNITED STATES OF THE TAX ON THE DISTILLED SPIRITS, 53
STAT. 319, 26 U.S.C. SEC. 2833(A), EVIDENCE IS NECESSARY WHICH SHOWS
THAT BY SOME ACT OF CONCEALMENT HE PROMOTED THE FRAUD, OR BY COUNSEL
AND ADVICE FURTHERED THE UNLAWFUL SCHEME, OR IN FACT HAD SOME INTEREST
IN THE PROJECT.  FN1  SEE UNITED STATES V. COOPER, 25 FED. CAS. 627,
629; UNITED STATES V. LOGAN, 26 FED. CAS. 990, 992; SEIDEN V. UNITED
STATES, 16 F.2D 197, 199; PARTSON V. UNITED STATES, 20 F.2D 127, 129;
ANDERSON V. UNITED STATES, 30 F.2D 485, 487.  AIDING AND ABETTING IN
THE ILLICIT MANUFACTURE OF LIQUOR IS ONE THING.  FN2  AIDING AND
ABETTING IN CARRYING ON THE BUSINESS WITH INTENT TO DEFRAUD THE UNITED
STATES OF A TAX IS QUITE A DIFFERENT MATTER, AND REQUIRES A DIFFERENT
TEST, IF THE TWO OFFENSES ARE NOT TO BE BLENDED.  THE EVIDENCE IN THE
CASE AND THE INSTRUCTIONS GIVEN THE JURY  FN3  SEEM TO US INADEQUATE TO
SUSTAIN A CONVICTION UNDER COUNT ONE, CHARGING BOZZA WITH AIDING AND
ABETTING IN A TAX FRAUD SCHEME. 

IN VIEW OF THIS CONCLUSION, MR. JUSTICE RUTLEDGE RESERVES EXPRESSION
OF OPINION CONCERNING THE LEGALITY OF THE SENTENCE.    FN1  JUDGE
LEARNED HAND, AFTER REVIEWING THE VARIOUS DEFINITIONS OF AIDING AND
ABETTING, SAID: "IT WILL BE OBSERVED THAT ALL THESE DEFINITIONS HAVE
NOTHING WHATEVER TO DO WITH THE PROBABILITY THAT THE FORBIDDEN RESULT
WOULD FOLLOW UPON THE ACCESSORY'S CONDUCT; AND THAT THEY ALL DEMAND
THAT HE IN SOME SORT ASSOCIATE HIMSELF WITH THE VENTURE, THAT HE
PARTICIPATE IN IT AS IN SOMETHING THAT HE WISHES TO BRING ABOUT, THAT
HE SEEK BY HIS ACTION TO MAKE IT SUCCEED.  ALL THE WORDS USED - EVEN
THE MOST COLORLESS, 'ABET' - CARRY AN IMPLICATION OF PURPOSIVE ATTITUDE
TOWARDS IT."  UNITED STATES V. PEONI, 100 F.2D 401, 402. 

FN2 THUS SEC. 2833(A) MAKES IT AN OFFENSE TO "CARRY ON THE BUSINESS
OF A DISTILLER WITHOUT HAVING GIVEN BOND AS REQUIRED BY LAW."  SECTION
2834 MAKES IT UNLAWFUL TO MAKE OR FERMENT MASH, FIT FOR DISTILLATION,
IN ANY BUILDING OR ON ANY PREMISES OTHER THAN AN AUTHORIZED
DISTILLERY. 

FN3  "...  IF YOU FIND THAT HE WAS MERELY AN UNDERLING, SERVING AT
THE BECK AND CALL OF AN EMPLOYER AND NOTHING MORE THAN THAT WOULD NOT
JUSTIFY YOUR FINDING HIM TO BE ENGAGED IN THE BUSINESS OF A DISTILLER. 
BUT IF FROM THE EVIDENCE YOU CONCLUDE LOGICALLY THAT HE AIDED AND
ABETTED IN THE CARRYING ON OF THIS BUSINESS, THEN HE WOULD BE
CHARGEABLE AS A PRINCIPAL.... AIDING AND ABETTING IS SOMETHING MORE
THAN MERELY COMMITTING AN ACT WHICH MAY HAVE THE EFFECT OF ASSISTING OR
FURTHERING A CRIMINAL TRANSACTION.  BEFORE A DEFENDANT CAN BE HELD AS
AN AIDER AND ABETTER THE GOVERNMENT MUST PROVE BEYOND A REASONABLE
DOUBT THAT HE COMMITTED AN ACT WHICH FURTHERED OR ASSISTED THE CRIMINAL
TRANSACTION, AND AT THE TIME HE COMMITTED THE ACT HE KNEW THAT A CRIME
WAS IN PROCESS OF COMMISSION, AND WITH THAT KNOWLEDGE HE ACTED WITH
INTENT TO AID AND ABET IN THE CRIMINAL TRANSACTION."  WHILE THE ABOVE
CHARGES WERE REQUESTED BY DEFENDANT, WE NEVERTHELESS FEEL THAT THE
FAILURE OF THE INSTRUCTIONS TO SATISFY THE STANDARD WE SUGGEST IS AN
ERROR WHICH WE SHOULD NOTICE.  SIBBACH V. WILSON & CO., 312 U.S. 1,
16. 
..END :

















UTE INDIANS V. UNITED STATES, 330 U.S. 169 


NO. 141.  ARGUED JANUARY 14, 15, 1947.  - DECIDED FEBRUARY 17, 1947.  -
106 CT. CL. 33, 64 F.SUPP.  569, AFFIRMED. 


BY A TREATY OF 1868 BETWEEN THE UNITED STATES AND THE UTE INDIANS, A
RESERVATION WAS ESTABLISHED FOR THE INDIANS IN COLORADO.  SUBSEQUENTLY,
AN ERRONEOUS SURVEY SHOWED THE NORTHERN BOUNDARY TO BE SOUTH OF THE
TRUE BOUNDARY AND AS EXCLUDING THE WHITE RIVER VALLEY LANDS WHICH
ACTUALLY WERE IN THE RESERVATION.  BELIEVING THE SURVEY TO BE ACCURATE
AND DESIRING TO PRESERVE THESE LANDS FOR THE USE OF THE INDIANS, THE
PRESIDENT, BY AN EXECUTIVE ORDER OF 1875, WITHDREW FROM SALE AND "SET
APART FOR THE USE OF THE  ...  UTE INDIANS, AS AN ADDITION TO THE
PRESENT RESERVATION IN SAID TERRITORY" A STRIP OF LAND NORTH "OF THE
PRESENT UTE INDIAN RESERVATION."  LATER, IN ORDER TO PUNISH THE INDIANS
FOR A MASSACRE, DISPOSSESS THEM OF THE RESERVATION, AND REMOVE THEM
FROM COLORADO, CONGRESS PASSED THE ACT OF JUNE 15, 1880, 21 STAT. 199,
WHICH RATIFIED AND EMBODIED AN AGREEMENT BY THEIR LEADERS TO CEDE TO
THE UNITED STATES ALL TERRITORY OF "THE PRESENT UTE RESERVATION," AND
PROVIDED THAT ALL LANDS SO CEDED AND NOT ALLOTTED SPECIFICALLY TO
INDIVIDUAL INDIANS WOULD BE RESTORED TO THE PUBLIC DOMAIN FOR SALE AS
PUBLIC LANDS AND THAT, SUBJECT TO CERTAIN CONDITIONS, THE PROCEEDS OF
THEIR SALE SHOULD BE DISTRIBUTED TO THE INDIANS.  AN EXECUTIVE ORDER OF
1882 DECLARED THAT THE LANDS "SET APART FOR THE USE OF THE  ...  UTE
INDIANS" BY THE EXECUTIVE ORDER OF 1875 IS "HEREBY RESTORED TO THE
PUBLIC DOMAIN."  THE INDIANS BROUGHT THIS SUIT UNDER THE ACT OF JUNE
28, 1938, 52 STAT. 1209, AS AMENDED, 55 STAT. 593, TO OBTAIN
COMPENSATION FOR THE LANDS NORTH OF THE ORIGINAL RESERVATION MADE
AVAILABLE TO THEM BY THE EXECUTIVE ORDER OF 1875.  HELD: 

1.  INSOFAR AS THE CLAIM RESTS ON THE EXECUTIVE ORDER OF 1875, IT
CANNOT BE SUSTAINED.  P. 176. 

(A)  THE PRESIDENT HAD NO AUTHORITY TO CONVEY TO THE INDIANS A
COMPENSABLE INTEREST IN THE LANDS LYING NORTH OF THE TRUE BOUNDARY OF
THE RESERVATION CREATED BY THE TREATY OF 1868.  PP. 176, 180. 

(B)  THE EXECUTIVE ORDER OF 1875 MADE THE INDIANS NO MORE THAN
TENANTS AT WILL OF THE GOVERNMENT ON THAT PART OF THE LAND OUTSIDE THE
TRUE TREATY RESERVATION.  P. 176. 

(C)  THE REAL PURPOSE OF THE EXECUTIVE ORDER WAS TO PROTECT THE
INDIANS' ENJOYMENT OF THE WHITE RIVER VALLEY LANDS CONVEYED TO THEM BY
THE ORIGINAL TREATY; AND THIS PURPOSE HAS BEEN ACCOMPLISHED.  PP. 177,
180. 

2.  THE ACT OF JUNE 15, 1880, GIVES THE INDIANS NO RIGHT TO RECOVER
FOR THE LAND NORTH OF THE TRUE BOUNDARY OF THE TREATY RESERVATION SET
APART FOR THEIR USE BY THE EXECUTIVE ORDER OF 1875.  PP. 177-180. 

(A)  IT CONTAINS NOTHING SHOWING A CONGRESSIONAL PURPOSE TO CONVEY
SUCH LANDS TO THE INDIANS.  P. 177. 

(B)  NOR WAS IT INTENDED TO TRANSFORM THE EXECUTIVE ORDER INTO A
CONVEYANCE OF A COMPENSABLE INTEREST IN LANDS NOT INCLUDED IN THE
ORIGINAL TREATY RESERVATION.  PP. 178, 180. 

(C)  IT WAS INTENDED TO COMPENSATE THEM ONLY FOR THE LANDS IN THE
ORIGINAL RESERVATION WHICH THEY CEDED TO THE UNITED STATES.  P. 178. 

(D)  THE FACT THAT IT PROVIDED FOR THE CESSION OF THE "PRESENT UTE
RESERVATION" IS NOT SUFFICIENT TO ATTRIBUTE TO CONGRESS A PURPOSE TO
TREAT AS PART OF THAT RESERVATION LANDS WHICH NEVER HAD BEEN LEGALLY
CONVEYED TO THE INDIANS AND HAD ONLY BEEN MADE AVAILABLE TO THEM FOR
THE SOLE PURPOSE OF MAKING THEM SECURE IN THEIR POSSESSION OF THE WHITE
RIVER VALLEY.  PP. 178-179. 

3.  EVEN IF THE INDIANS UNDERSTOOD IN 1880 THAT THEY OWNED THE LANDS
DESCRIBED IN THE EXECUTIVE ORDER OF 1875 LYING NORTH OF THE WHITE RIVER
VALLEY, THAT THEIR "PRESENT UTE RESERVATION" INCLUDED THEM, AND THAT
CONGRESS UNDERTOOK BY THE 1880 ACT TO SELL THESE LANDS FOR THEIR
BENEFIT, AND, EVEN IF CONGRESS WAS AWARE OF THIS UNDERSTANDING, THIS
WOULD NOT REQUIRE A DIFFERENT RESULT, IN VIEW OF THE FACT THAT THE ACT
NEITHER CONVEYED NOR RATIFIED CONVEYANCE OF THESE LANDS.  P. 179. 

4.  WHILE A TREATY WITH INDIANS IS TO BE CONSTRUED SO AS TO CARRY OUT
THE GOVERNMENT'S OBLIGATIONS IN ACCORDANCE WITH THE FAIR UNDERSTANDING
OF THE INDIANS, THIS COURT CANNOT, UNDER THE GUISE OF INTERPRETATION,
CREATE PRESIDENTIAL AUTHORITY WHERE THERE WAS NONE OR REWRITE
CONGRESSIONAL ACTS SO AS TO MAKE THEM MEAN SOMETHING THEY OBVIOUSLY
WERE NOT INTENDED TO MEAN.  P. 179. 

CONFEDERATED BANDS OF UTE INDIANS V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

IN A SUIT BY THE UTE INDIANS UNDER THE ACT OF JUNE 28, 1938, 52 STAT.
1209, AS AMENDED, 55 STAT. 593, TO RECOVER COMPENSATION FOR LANDS MADE
AVAILABLE TO THEM BY AN 1875 EXECUTIVE ORDER OF THE PRESIDENT AND
SUBSEQUENTLY TAKEN FROM THEM BY THE UNITED STATES, THE COURT OF CLAIMS
HELD THAT THEY HAD NO COMPENSABLE INTEREST IN SUCH LANDS.  106 CT. CL.
33, 64 F.SUPP.  569.  THIS COURT GRANTED CERTIORARI.  329 U.S. 694. 
AFFIRMED, P. 180. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS BROUGHT THIS ACTION IN THE COURT OF CLAIMS UNDER THE ACT
OF JUNE 28, 1938, 52 STAT. 1209, AS AMENDED, 55 STAT. 593, TO RECOVER
COMPENSATION FOR LANDS MADE AVAILABLE TO THEM BY AN 1875 EXECUTIVE
ORDER OF THE PRESIDENT AND SUBSEQUENTLY TAKEN FROM THEM BY THE UNITED
STATES.  THEIR CLAIM WAS THAT BY AN ACT OF 1880, CONGRESS HAD
UNDERTAKEN TO SELL THESE LANDS FOR THE BENEFIT OF THE PETITIONERS, BUT
THAT THEY HAD NEVER BEEN COMPENSATED FOR THEM.  THE COURT OF CLAIMS,
ONE JUDGE CONCURRING SPECIALLY, MADE FINDINGS OF FACT AND CONCLUDED AS
A MATTER OF LAW THAT PETITIONERS HAD NO COMPENSABLE INTEREST IN THE
LANDS BECAUSE THEY "NEVER DID ACQUIRE TITLE TO THESE  ...  LANDS AND
...  THE CONGRESS NEVER DID AGREE TO SELL THEM FOR THE ACCOUNT OF"
PETITIONERS.  106 CT. CL. 33, 51, 64 F.SUPP.  569, 571.  WE GRANTED
CERTIORARI, 329 U.S. 694. 

THE FINDINGS OF THE COURT OF CLAIMS FROM OFFICIAL LETTERS, EXECUTIVE
ORDERS AND STATUTES INCORPORATED IN THESE FINDINGS WERE AS FOLLOWS: 

A TREATY OF 1868, 15 STAT. 619, BETWEEN THE UNITED STATES AND
PETITIONERS' ANCESTORS, THE UTE INDIAN TRIBES, ESTABLISHED A
RESERVATION FOR THEM IN COLORADO.  THE NORTHERN BOUNDARY OF THE 15
MILLION ACRES THERE CEDED WAS DESCRIBED IN THE TREATY AS A LINE FIFTEEN
MILES NORTH OF, AND PARALLEL TO, THE 40TH PARALLEL OF NORTH LATITUDE. 
IN THE 15-MILE WIDE STRIP NORTH OF THE 40TH PARALLEL LAY THE WHITE
RIVER VALLEY WHICH HAD BEEN SETTLED BY THE UTES AS A MOST SUITABLE
PLACE FOR GRAZING AND CULTIVATION.  ONE OF THE TWO GOVERNMENT INDIAN
AGENCIES PROVIDED FOR THE RESERVATION BY THE TREATY WAS ESTABLISHED IN
THAT STRIP. 

AS A RESULT OF MISUNDERSTANDINGS IN 1869 AND 1874 BETWEEN THE UTES
AND WHITE SETTLERS TO THE NORTH AS TO THE TRUE LOCATION OF THE NORTHERN
TREATY BOUNDARY, A SURVEY WAS MADE IN 1875 BY ONE MILLER.  MILLER'S
INSTRUCTIONS, HOWEVER, REQUIRED HIM TO STAKE OUT A LINE WHICH HE
ADMITTED TO THE LOCAL INDIAN AGENT AND TO THE UTES THEMSELVES TO BE
FIFTEEN TO EIGHTEEN MILES SOUTH OF THE TRUE BOUNDARY DESCRIBED IN THE
TREATY.  IF MILLER'S LINE HAD BEEN CORRECT, IT WOULD HAVE EXCLUDED FROM
THE 1868 RESERVATION THE FERTILE WHITE RIVER VALLEY, AND WOULD HAVE
ALSO EXCLUDED THE AGENCY BUILDINGS WHICH HAD BEEN ERECTED THERE. 

THE MARKING OUT OF THE ERRONEOUS MILLER LINE GREATLY UPSET THE
INDIANS BECAUSE THEY FEARED THEY WOULD BE DRIVEN FROM THE WHITE RIVER
VALLEY.  THIS EMBARRASSED THE LOCAL INDIAN AGENT WHO HAD PREVIOUSLY
ASSURED THE INDIANS THAT THE WHITE RIVER VALLEY LAY WITHIN THEIR
RESERVATION.  HE PROMPTLY REPORTED THE RESULTS OF THE SURVEY AND THE
REACTION OF THE INDIANS TO THE COMMISSIONER OF INDIAN AFFAIRS IN
WASHINGTON, AND URGED THE NECESSITY OF A NEW SURVEY AT THE EARLIEST
PRACTICABLE DATE.  HE STATED THAT IF THE MILLER SURVEY WERE CORRECT,
HOWEVER, THE INDIANS WOULD BE DRIVEN FROM THE WHITE RIVER VALLEY - "THE
ONLY FARMING LAND AND  ...  STOCK RANGE  ...  IN THIS PORTION OF THE
RESERVATION" - AND FORCED TO SETTLE ON A RIVER FORTY MILES TO THE
SOUTH.  THE COMMISSIONER, ACTING ON THIS REPORT AND A STATEMENT BY
MILLER'S ATTORNEY THAT MILLER'S LINE WAS CORRECT, WROTE TO THE
SECRETARY OF THE INTERIOR THAT THE MILLER SURVEY "DEVELOPS THE FACT
THAT THE WHITE RIVER AND SURROUNDING VALLEYS AS WELL AS THE AGENCY
BUILDINGS AND IMPROVEMENTS AT THE WHITE RIVER AGENCY LIE NORTH OF THE
...  BOUNDARY AND CONSEQUENTLY ARE NOT WITHIN THE LIMITS OF THE  ...
UTE RESERVATION."  HE THEREFORE RECOMMENDED TO THE SECRETARY THAT THE
PRESIDENT BE REQUESTED TO ISSUE AN EXECUTIVE ORDER TO MAKE AVAILABLE TO
THE UTES ADDITIONAL TERRITORY NORTH OF THE 1868 TREATY BOUNDARY.  THE
PRESIDENT, ON THE RECOMMENDATION OF THE SECRETARY OF THE INTERIOR,
ISSUED THE ORDER.  FN1  AND THEREAFTER THE COMMISSIONER WROTE THE LOCAL
AGENT THAT THE ORDER INCLUDED "ALL THAT TRACT OF COUNTRY LYING BETWEEN
THE NORTH BOUNDARY OF THE UTE RESERVATION AS DEFINED IN TREATY OF MARCH
2, 1868  ...  WHICH WAS THE BOUNDARY SURVEYED BY MR. MILLER  ...  THIS
ACTION FULLY PROTECTS YOUR INDIANS IN THE PEACEABLE POSSESSION OF THEIR
IMPROVEMENTS IN THE WHITE RIVER VALLEY AND THE AGENCY BUILDINGS, AND
WILL ENABLE YOU TO ASSURE THE INDIANS OF THE EXACT LOCATION OF THE
LIMITS OF THEIR RESERVATION AS ENLARGED." 

IN 1879, SEVERAL YEARS AFTER THE EXECUTIVE ORDER WAS ISSUED,
HOSTILITIES BROKE OUT BETWEEN SOME OF THE UTES AND GOVERNMENT
REPRESENTATIVES IN WHICH THE INDIAN AGENT AT WHITE RIVER, ALL THE
AGENCY'S MALE EMPLOYEES, AND A U.S. MILITARY DETACHMENT WERE KILLED IN
THE SO-CALLED "MEEKER MASSACRE."  H.R. EX. DOC. NO. 1, PT. 5, 46TH
CONG., 2D SESS. (1879) 16-19, 82-97.  THERE HAVE BEEN CHARGES AND
COUNTERCHARGES AS TO WHO WAS RESPONSIBLE FOR INCITING THESE
HOSTILITIES.  WHOEVER WAS RESPONSIBLE, IT IS CLEAR THAT CONGRESS,
AROUSED BY THE MASSACRE, TOOK STEPS TO PUNISH THE INDIANS WHO
PARTICIPATED IN IT, TO DISPOSSESS THE UTES OF THEIR RESERVATION, AND TO
REMOVE THEM FROM COLORADO.  CONGRESSIONAL ACTION TO ACCOMPLISH THIS WAS
PROVIDED BY THE ACT OF JUNE 15, 1880, 21 STAT. 199, WHICH RATIFIED AND
EMBODIED AN AGREEMENT REACHED EARLIER THAT YEAR BETWEEN THE GOVERNMENT
AND THE LEADERS OF THE UTES WHO HAD PROMISED "TO USE THEIR BEST
ENDEAVORS WITH THEIR PEOPLE TO PROCURE THEIR CONSENT TO CEDE TO THE
UNITED STATES ALL THE TERRITORY OF THE PRESENT UTE RESERVATION  ..." 
THIS ACT AUTHORIZED SPECIFIC ALLOTMENTS TO INDIVIDUAL INDIANS FROM THE
LANDS SO CEDED.  BUT SEC. 3 PROVIDED THAT "ALL THE LANDS NOT  ...
ALLOTTED, THE TITLE TO WHICH IS, BY THE SAID AGREEMENT OF  ...  THE UTE
INDIANS, AND THIS ACCEPTANCE BY THE UNITED STATES, RELEASED AND
CONVEYED TO THE UNITED STATES  ..."  WOULD BE RESTORED TO THE PUBLIC
DOMAIN FOR SALE AS PUBLIC LANDS.  THE PROCEEDS OF THE SALE OF THE LAND
SO CONVEYED BY THE UTES TO THE UNITED STATES WERE, UPON SATISFACTION OF
INDEMNITY CONDITIONS IMPOSED BECAUSE OF THE MASSACRE, TO BE DISTRIBUTED
TO THE INDIANS.  THEREAFTER, IN 1882, AN EXECUTIVE ORDER DECLARED THAT
THE LANDS WITHDRAWN FROM THE PUBLIC DOMAIN BY THE EXECUTIVE ORDER OF
1875 AND "SET APART FOR THE USE OF THE  ...  UTE INDIANS ...  HEREBY
IS, RESTORED TO THE PUBLIC DOMAIN."  1 KAPPLER, SUPRA, 834-835. 

PURSUANT TO AN ACT OF 1909, 35 STAT. 781, PETITIONERS RECOVERED A
JUDGMENT FOR THE PROCEEDS OF CERTAIN LANDS SOLD BY THE GOVERNMENT, AS
WELL AS THE VALUE OF CERTAIN LANDS APPROPRIATED BY THE GOVERNMENT TO
ITS OWN USE, ALL OF WHICH WERE PART OF THE 1868 TREATY LANDS.  UTE
INDIANS V. UNITED STATES, 45 CT. CL. 440, 46 CT. CL. 225.  THUS, EXCEPT
FOR CERTAIN TREATY LANDS NOT AT ISSUE HERE, LITIGATION CONCERNING WHICH
IS NOW PENDING IN THE COURT OF CLAIMS, THE ONLY LANDS IN COLORADO FOR
WHICH THE INDIANS HAVE NOT BEEN PAID ARE THOSE TO THE NORTH OF AND
OUTSIDE THE 1868 TREATY RESERVATION WHICH WERE MADE AVAILABLE TO THEM
BY THE EXECUTIVE ORDER OF 1875.  IN PURSUIT OF COMPENSATION FOR THESE
EXECUTIVE ORDER LANDS, PETITIONERS HAVE BROUGHT THIS ACTION PURSUANT TO
THE ACT OF JUNE 28, 1938, SUPRA.  THAT ACT CONFERS JURISDICTION ON THE
COURT OF CLAIMS TO HEAR, DETERMINE, AND RENDER FINAL JUDGMENT ON ALL
LEGAL AND EQUITABLE CLAIMS OF THE UTES AND TO AWARD JUDGMENT FOR THE
INDIANS WHERE IT IS FOUND "THAT ANY LANDS FORMERLY BELONGING" TO THEM
"HAVE BEEN TAKEN BY THE UNITED STATES WITHOUT COMPENSATION  ..." 

PETITIONERS CONTEND HERE THAT THEIR PREDECESSORS UNDERSTOOD THAT THEY
NOT ONLY OWNED THE WHITE RIVER VALLEY LANDS, BUT THAT THEY ALSO OWNED
THE EXECUTIVE ORDER LANDS WHEN, IN 1880, THEY AGREED TO CEDE THEIR
RESERVATION; AND THAT CONGRESS, BY INCORPORATING THE AGREEMENT IN THE
1880 ACT, THEREBY RATIFIED IT ALONG WITH THE INDIANS' UNDERSTANDING OF
IT.  PETITIONERS FURTHER CONTEND THAT WHETHER OR NOT CONGRESS INTENDED
TO OBLIGATE THE GOVERNMENT TO ACCOUNT FOR THE EXECUTIVE ORDER LANDS,
THEY KNEW OF THE INDIANS' UNDERSTANDING SO THAT "THE UNDERSTANDING OF
THE INDIANS HAVING BEEN ESTABLISHED," THEIR UNDERSTANDING ENTITLES THEM
TO RECOVER.  FINALLY THEY ARGUE THAT THE EXECUTIVE ORDER, UNLIKE THE
ONE IN ISSUE IN SIOUX TRIBE OF INDIANS V. UNITED STATES, 316 U.S. 317,
CONVEYED A COMPENSABLE INTEREST TO THESE INDIANS.  THE GOVERNMENT
COUNTERS THAT THE PRESIDENT HAD NO POWER TO GIVE A COMPENSABLE INTEREST
TO THE INDIANS TO LANDS LYING OUTSIDE THE TRUE 1868 TREATY BOUNDARIES;
THAT IF THE PRESIDENT INTENDED TO MAKE AVAILABLE LANDS OUTSIDE THE TRUE
BOUNDARY IT WAS ONLY TO GIVE A TRANSITORY, POSSESSORY, AND NOT A
COMPENSABLE, INTEREST; THAT HIS INTENT WAS, IN FACT, ONLY TO SECURE THE
INDIANS IN THEIR POSSESSION OF THE WHITE RIVER VALLEY, BUT NO MORE, ON
THE MISTAKEN ASSUMPTION THAT THE WHITE RIVER VALLEY HAD BEEN CUT OFF
FROM THE RESERVATION BY THE MILLER SURVEY; THAT THE 1880 ACT, NEITHER
BY ITS TERMS, ITS LEGISLATIVE HISTORY, NOR ITS ADMINISTRATIVE
INTERPRETATION, SUGGESTS THAT CONGRESS INTENDED TO RATIFY OR EXPAND THE
EXECUTIVE ORDER OR TO COMPENSATE THE INDIANS FOR THE EXECUTIVE ORDER
LANDS; THAT THE INDIANS DID NOT HAVE A CONTRARY UNDERSTANDING; THAT IN
THE FACE OF SUCH CLEAR LEGISLATIVE LANGUAGE AND INTENT, A CONTRARY
UNDERSTANDING OF THE INDIANS, EVEN IF ESTABLISHED, COULD NOT JUSTIFY A
HOLDING THAT THE INDIANS OBTAINED A COMPENSABLE INTEREST. 

IT IS CONCEDED THAT THE PETITIONERS HAVE EITHER BEEN, OR ARE
CURRENTLY PRESSING LITIGATION IN THE COURT OF CLAIMS BY WHICH THEY SEEK
TO BE, COMPENSATED FOR THE WHITE RIVER VALLEY LANDS, AND, IN FACT, FOR
ALL OF THE LAND WHICH WAS CONTAINED IN THE TRUE BOUNDARIES OF THE 1868
RESERVATION.  THE ADDITIONAL CLAIM, INSOFAR AS IT RESTS ON THE
EXECUTIVE ORDER OF 1875, CANNOT BE SUSTAINED.  FOR THE PRESIDENT HAD NO
AUTHORITY TO CONVEY TO THE PETITIONERS A COMPENSABLE INTEREST IN THE
LANDS DESCRIBED IN THE ORDER LYING NORTH OF THE TRUE 1868 BOUNDARY. 
SIOUX TRIBE OF INDIANS V. UNITED STATES, SUPRA.  FN2  NOR IS THERE ANY
INDICATION IN THE FINDINGS THAT THE PRESIDENT INTENDED TO CONVEY MORE
THAN A TRANSITORY, POSSESSORY INTEREST BY THE 1875 ORDER.  THAT ORDER
MADE THE INDIANS NO MORE THAN TENANTS AT THE WILL OF THE GOVERNMENT ON
THAT PART OF THE LAND OUTSIDE THE TRUE TREATY RESERVATION.  ID. AT
331.  MOREOVER, THE COURT OF CLAIMS' FINDINGS OF FACT, AS EMPHASIZED BY
THE SPECIAL CONCURRING OPINION, INDICATE THAT THE EXECUTIVE ORDER WAS
PROMULGATED UNDER THE MISTAKEN BELIEF THAT ITS ISSUANCE WAS NECESSARY
IN ORDER TO GIVE THE INDIANS THE USE OF THE WHITE RIVER VALLEY LANDS
INTENDED TO BE GRANTED TO THEM BY THE 1868 TREATY AND FROM WHICH THEY
MIGHT OTHERWISE HAVE BEEN EXCLUDED BY THE MILLER SURVEY.  THESE
FINDINGS DO NOT INDICATE THAT THE COMMISSIONER, THE SECRETARY, OR THE
PRESIDENT INTENDED THE ORDER TO MAKE AVAILABLE THE LANDS IT IN FACT
DESCRIBED LYING NORTH OF THE TRUE TREATY BOUNDARY.  THE ORDER WAS
DESIGNED ONLY TO RESOLVE THE MISUNDERSTANDING CREATED BY MILLER ABOUT
THE WHITE RIVER VALLEY LANDS.  FN3  THE FULLEST POSSIBLE PURPOSE OF THE
EXECUTIVE ORDER HAS ACTUALLY BEEN CARRIED OUT.  FOR THE INDIANS'
ENJOYMENT OF THE WHITE RIVER LANDS WAS PROTECTED DURING THEIR STAY ON
THE RESERVATION, AND THE LANDS HAVE EITHER ALREADY BEEN PAID FOR, OR
ARE THE SUBJECT OF PENDING LITIGATION IN THE COURT OF CLAIMS WHEREBY
THE INDIANS SEEK PAYMENT FOR THEM.  IT IS WITH THESE THINGS IN MIND
THAT WE MUST CONSIDER PETITIONERS' CONTENTION THAT THEY HAVE A RIGHT TO
RECOVER COMPENSATION BECAUSE OF THE 1880 ACT. 

THERE IS NOT ONE WORD IN THAT ACT SHOWING A CONGRESSIONAL PURPOSE TO
CONVEY THE EXECUTIVE ORDER LANDS, OR ANY OTHER LANDS, TO THE INDIANS. 
ON THE CONTRARY, THE ACT EMBODIED A TRANSACTION WHEREBY THE INDIANS
WERE THE TRANSFERORS AND CONVEYED LANDS TO THE GOVERNMENT.  FOR THE
VALUE OF LANDS SO CONVEYED, AND FOR NO OTHER, THE GOVERNMENT WAS TO
MAKE AN ACCOUNT TO THE INDIANS AFTER CERTAIN DEDUCTIONS HAD BEEN MADE. 

NOR IS IT POSSIBLE TO DEDUCE FROM THE 1880 ACT A CONGRESSIONAL
PURPOSE TO TRANSFORM THE EXECUTIVE ORDER INTO A CONVEYANCE OF SOMETHING
MORE THAN A MERE TEMPORARY AND CANCELLABLE POSSESSORY RIGHT TO THE
INDIANS.  NEITHER THE LANGUAGE OF THE 1880 ACT, ITS LEGISLATIVE
HISTORY, NOR THE CIRCUMSTANCES WHICH BROUGHT IT ABOUT, JUSTIFY THE
CLAIM THAT CONGRESS INTENDED TO EXPAND THE EXECUTIVE ORDER INTO A
TRANSFER OF A COMPENSABLE INTEREST IN LANDS NOT INCLUDED IN THE
ORIGINAL TREATY RESERVATION.  THE ACT WAS AN AFTERMATH OF THE "MEEKER
MASSACRE."  WITH THE MASSACRE IN MIND, CONGRESS DECIDED TO REMOVE THE
INDIANS FROM THE COLORADO RESERVATION AS PART OF THE PUNISHMENT METED
OUT FOR THIS TRAGEDY.  FN4  THE VERY FIRST SECTION OF THE 1880 ACT
PROHIBITED ANY PAYMENTS AT ALL TO THE INDIANS UNTIL THE INDIANS
INVOLVED HAD SURRENDERED, BEEN APPREHENDED, OR UNTIL THE PRESIDENT HAD
PROOF THAT THEY WERE DEAD OR OUTSIDE THE UNITED STATES.  COMPENSATION
FOR THE FAMILIES OF THE MASSACRE VICTIMS WAS TO BE DEDUCTED FROM THE
LAND SALE PROCEEDS PAYABLE TO THE INDIANS.  WE CANNOT FIND FROM THIS
BACKGROUND A CONGRESSIONAL PURPOSE TO MAKE A GIFT TO THE INDIANS OF THE
EXECUTIVE ORDER LANDS FOR WHICH COMPENSATION IS HERE SOUGHT.  THE ONLY
LANDS FOR WHICH CONGRESS AGREED IN 1880 TO COMPENSATE THE INDIANS WERE
THOSE "THE TITLE TO WHICH" THE INDIANS THEN "RELEASED AND CONVEYED TO
THE UNITED STATES."  THEY COULD ONLY RELEASE AND CONVEY THE LANDS THAT
BELONGED TO THEM, AND ONLY THE LANDS GIVEN TO THEM BY THE ORIGINAL 1868
TREATY BELONGED TO THEM.  IT WAS FOR COMPENSATION FOR SUCH LANDS ONLY
THAT CONGRESS, IN 1938, AUTHORIZED THIS ACTION TO BE MAINTAINED.  UNDER
ALL THESE CIRCUMSTANCES, THE FACT THAT THE 1880 ACT REQUIRED THE CHIEFS
AND HEADMEN TO PROCURE THE CONSENT OF THEIR PEOPLE TO THE CESSION OF
"THE PRESENT UTE RESERVATION" IS NOT SUFFICIENT TO ATTRIBUTE TO
CONGRESS A PURPOSE TO TREAT AS A PART OF THAT RESERVATION LANDS WHICH
HAD NEVER BEEN LEGALLY CONVEYED TO THE INDIANS AND WHICH HAD ONLY BEEN
MADE AVAILABLE TO THEM BY THE EXECUTIVE ORDER FOR THE SOLE PURPOSE OF
MAKING THEM SECURE IN THEIR POSSESSION OF THE WHITE RIVER VALLEY. 

IT IS SAID, HOWEVER, THAT THE INDIANS UNDERSTOOD IN 1880 THAT THEY
OWNED THE EXECUTIVE ORDER LANDS WHICH LAY NORTH OF THE WHITE RIVER
VALLEY; THAT THEY UNDERSTOOD THEIR "PRESENT UTE RESERVATION" TO INCLUDE
THEM; THAT THEY UNDERSTOOD THAT CONGRESS UNDERTOOK BY THE 1880 ACT TO
SELL THE LANDS FOR THEIR BENEFIT; AND THAT CONGRESS WAS AWARE OF THIS
UNDERSTANDING.  THE MAJORITY OPINION OF THE COURT OF CLAIMS STATED THAT
"IN ALL PROBABILITY" THIS WAS TRUE.  THE WRITER OF THE CONCURRING
OPINION THOUGHT DIFFERENTLY.  BUT EVEN IF THE INDIANS HAD BELIEVED THAT
THEY HAD A COMPENSABLE INTEREST IN THE EXECUTIVE ORDER LANDS, THIS FACT
WOULD NOT NECESSARILY HAVE GIVEN IT TO THEM.  CERTAINLY THE ABSENCE OF
PRESIDENTIAL AUTHORITY TO GIVE THEM A COMPENSABLE TITLE COULD NOT BE
SUPPLIED BY THE INDIANS' UNDERSTANDING THAT THE PRESIDENT HAD SUCH
AUTHORITY.  THE SIOUX INDIANS MAY ALSO HAVE THOUGHT THE PRESIDENT HAD
AUTHORITY TO CONVEY TITLE TO THEM; BUT THE REASONS ON WHICH OUR
DECISION IN THE SIOUX CASE, SUPRA, RESTED DO NOT INDICATE THAT OUR
HOLDING DEPENDED IN ANY WAY UPON THE UNDERSTANDING OF THE INDIANS.  NOR
CAN THIS ALLEGED UNDERSTANDING BE IMPUTED TO CONGRESS IN THE FACE OF
PLAIN LANGUAGE AND A RATHER FULL LEGISLATIVE HISTORY INDICATING THAT
THE 1880 ACT NEITHER CONVEYED NOR RATIFIED CONVEYANCE OF THESE LANDS. 
WHILE IT HAS LONG BEEN THE RULE THAT A TREATY WITH INDIANS IS TO BE
CONSTRUED SO AS TO CARRY OUT THE GOVERNMENT'S OBLIGATIONS IN ACCORDANCE
WITH THE FAIR UNDERSTANDING OF THE INDIANS, WE CANNOT, UNDER THE GUISE
OF INTERPRETATION, CREATE PRESIDENTIAL AUTHORITY WHERE THERE WAS NONE,
NOR REWRITE CONGRESSIONAL ACTS SO AS TO MAKE THEM MEAN SOMETHING THEY
OBVIOUSLY WERE NOT INTENDED TO MEAN.  CHOCTAW NATION V. UNITED STATES,
318 U.S. 423, 431-432.  WE CANNOT, UNDER ANY ACCEPTABLE RULE OF
INTERPRETATION, HOLD THAT THE INDIANS OWNED THE LANDS MERELY BECAUSE
THEY THOUGHT SO.  SOLICITOUS AS THE GOVERNMENT IS TO CARRY OUT ITS
PROMISES TO THE INDIANS IN GOOD FAITH, WE ARE SATISFIED FROM THIS
RECORD THAT THE GOVERNMENT HAS PERFORMED ALL THAT IT PROMISED. 

AS WE HAVE POINTED OUT, IT SEEMS OBVIOUS TO US FROM THE FINDINGS OF
THE COURT OF CLAIMS THAT THE EXECUTIVE ORDER WAS ONLY INTENDED TO
SECURE FOR THESE INDIANS' ANCESTORS POSSESSION OF THE WHITE RIVER
VALLEY LANDS CONVEYED TO THEM BY THE ORIGINAL 1868 TREATY, AND WHICH
WAS JEOPARDIZED BY THE MILLER SURVEY.  FN5  IN FACT, THE PRESIDENT HAD
NO AUTHORITY TO CONVEY A COMPENSABLE INTEREST IN THESE OR OTHER LANDS
TO THE UTES.  FAIRLY TO CARRY OUT THE 1868 TREATY WAS THE ORDER'S AIM. 
THE 1880 ACT, WE BELIEVE, DID NOT ENLARGE UPON THE LIMITED PURPOSE OF
THE EXECUTIVE ORDER.  TO COMPENSATE THESE INDIANS FOR LANDS NOT
INTENDED TO BE CONVEYED BY THE 1868 TREATY, THE EXECUTIVE ORDER, NOR
THE 1880 ACT, WOULD BE TO PAY THEM FOR LANDS WHICH NEITHER THEY NOR
THEIR ANCESTORS EVER OWNED AND TO WHICH THEY HAD NO CLAIM IN EQUITY OR
JUSTICE, SO FAR AS THE TRANSACTIONS HERE AT ISSUE ARE CONCERNED.  NO
RULE OF CONSTRUCTION JUSTIFIES SUCH A RESULT.  AFFIRMED. 

FN1  THE EXECUTIVE ORDER OF NOVEMBER 22, 1875, 1 KAPPLER, INDIAN
AFFAIRS, LAWS AND TREATIES, 834(1904) IS AS FOLLOWS: 

"IT IS HEREBY ORDERED THAT THE TRACT OF COUNTRY IN THE TERRITORY OF
COLORADO LYING WITHIN THE FOLLOWING-DESCRIBED BOUNDARIES, VIZ:
COMMENCING AT THE NORTHEAST CORNER OF THE PRESENT UTE INDIAN
RESERVATION, AS DEFINED IN THE TREATY OF MARCH 2, 1868(STATS.  AT
LARGE, VOL. 15, P. 619); THENCE RUNNING NORTH ON THE 107TH DEGREE OF
LONGITUDE TO THE FIRST STANDARD PARALLEL NORTH; THENCE WEST ON SAID
FIRST STANDARD PARALLEL TO THE BOUNDARY LINE BETWEEN COLORADO AND UTAH;
THENCE SOUTH WITH SAID BOUNDARY TO THE NORTHWEST CORNER OF THE UTE
INDIAN RESERVATION; THENCE EAST WITH THE NORTH BOUNDARY OF THE SAID
RESERVATION TO THE PLACE OF BEGINNING, BE, AND THE SAME HEREBY IS,
WITHDRAWN FROM SALE AND SET APART FOR THE USE OF THE SEVERAL TRIBES OF
UTE INDIANS, AS AN ADDITION TO THE PRESENT RESERVATION IN SAID
TERRITORY." 

FN2  CF. EXECUTIVE ORDER OF AUGUST 17, 1876, WHICH INTERPRETED A
TREATY SO AS TO "SET APART (CERTAIN LAND) AS A PART OF THE UTE INDIAN
RESERVATION, IN ACCORDANCE WITH THE FIRST ARTICLE OF AN AGREEMENT MADE
WITH SAID INDIANS AND RATIFIED BY CONGRESS  ..."  1 KAPPLER, SUPRA,
834. 

FN3  THE COURT OF CLAIMS DID NOT FIND THIS AS AN ULTIMATE FACT.  BUT
THE CORRESPONDENCE WHICH PLAINLY SHOWS IT WAS INCORPORATED IN THE
FINDINGS.  THIS COURT HAS SAID WITH REFERENCE TO FINDINGS OF THE COURT
OF CLAIMS THAT THE "ABSENCE OF THE FINDING OF AN ULTIMATE FACT DOES NOT
REQUIRE A REVERSAL OF THE JUDGMENT IF THE CIRCUMSTANTIAL FACTS AS FOUND
ARE SUCH THAT THE ULTIMATE FACT FOLLOWS FROM THEM AS A NECESSARY
INFERENCE."  UNITED STATES V. WELLS, 283 U.S. 102, 120. 

FN4  SEE S. 772 AND S. RES. 51, 10 CONG. REC. PT. 1(1879) 30, 77;
H.R. 142, 10 CONG. REC. 44; H.R. 2420, 10 CONG. REC. 17; H.R. 154, 10
CONG. REC. 113; H.R. 5092, 10 CONG. REC. PT. 2(1880) 1538. 

FN5  SEE P. 177, SUPRA. 

MR. JUSTICE MURPHY, DISSENTING. 

THE UNITED STATES, IN MY OPINION, IS MORALLY AND LEGALLY OBLIGATED TO
PAY FOR THE LAND IN ISSUE IN THIS CASE.  THE EXECUTIVE ORDER OF 1875 BY
ITS TERMS SET ASIDE CERTAIN LAND UP TO THE "FIRST STANDARD PARALLEL
NORTH" FOR THE USE OF THE UTE INDIANS "AS AN ADDITION TO THE PRESENT
RESERVATION."  THAT ORDER ALONE, OF COURSE, COULD CONVEY NO COMPENSABLE
INTEREST TO THE INDIANS UNDER THE RULE OF SIOUX TRIBE V. UNITED STATES,
316 U.S. 317.  BUT EVENTS SUBSEQUENT TO THE ISSUANCE OF THE EXECUTIVE
ORDER IN THIS CASE MAKE INAPPLICABLE THE PRINCIPLE OF THE SIOUX CASE. 
IN 1880 THE UNITED STATES AND THE UTE CHIEFS AND HEADMEN ENTERED INTO
AN AGREEMENT WHEREBY THE LATTER PROMISED "TO USE THEIR BEST ENDEAVORS
WITH THEIR PEOPLE TO PROCURE THEIR CONSENT TO CEDE TO THE UNITED STATES
ALL THE TERRITORY OF THE PRESENT UTE RESERVATION IN COLORADO." 
CONGRESS THEREUPON PASSED THE ACT OF JUNE 15, 1880, WHICH RECITED IN
ITS PREAMBLE THAT THE CHIEFS AND HEADMEN HAD "SUBMITTED TO THE
SECRETARY OF THE INTERIOR AN AGREEMENT FOR THE SALE TO THE UNITED
STATES OF THEIR PRESENT RESERVATION IN THE STATE OF COLORADO."  THE ACT
THEN INCORPORATED THE AGREEMENT PREVIOUSLY MADE AND PROVIDED THAT ALL
UNALLOTTED LANDS SHOULD BE DEEMED TO BE RELEASED AND CONVEYED TO THE
UNITED STATES. 

IT SEEMS CLEAR TO ME THAT BY 1880 THE TERM "PRESENT RESERVATION"
INCLUDED THE LAND WHICH THE EXECUTIVE ORDER OF 1875 STATED HAD BEEN SET
ASIDE AS AN ADDITION TO THE THEN PRESENT RESERVATION.  AND WHEN THE
1880 AGREEMENT AND THE 1880 ACT REFERRED TO "PRESENT RESERVATION" THEY
MUST HAVE INCLUDED THAT ADDITIONAL LAND.  ADDING THIS INFORMAL
ACKNOWLEDGMENT BY CONGRESS OF THE EXPANDED RESERVATION TO THE
OCCUPATION OF THE LAND BY THE INDIANS AND THEIR UNDERSTANDING THAT IT
BELONGED TO THE RESERVATION, A COMPENSABLE INTEREST BECOMES EVIDENT. 
IT IS IMMATERIAL THAT THERE WERE NO FORMAL DOCUMENTS CONVEYING A FEE
SIMPLE INTEREST TO THE INDIANS; IT IS LIKEWISE IRRELEVANT THAT THERE
WAS NO FORMAL ACKNOWLEDGMENT OF THE INDIAN TITLE.  SPALDING V.
CHANDLER, 160 U.S. 394; UNITED STATES V. ALCEA BAND OF TILLAMOOKS, 329
U.S. 40.  IT IS ENOUGH THAT THE INDIANS HAD THE RIGHT TO POSSESS AND
OCCUPY THE LAND AND THAT THE INDIANS FAIRLY UNDERSTOOD THAT TO BE THE
CASE.  AN ACKNOWLEDGMENT BY CONGRESS, HOWEVER INFORMAL, THEN ADDS A
LEGAL OBLIGATION TO THE MORAL DUTY OF THE UNITED STATES TO PAY FOR THE
LAND INVOLVED.  SUCH IS THE SITUATION HERE. 

THE COURT INDICATES, HOWEVER, THAT THE EXECUTIVE ORDER OF 1875 DOES
NOT MEAN WHAT IT SAYS.  IT CLEARLY SET APART FOR THE USE OF THE INDIANS
"AS AN ADDITION TO THE PRESENT RESERVATION" ALL THE DESCRIBED LAND UP
TO THE "FIRST STANDARD PARALLEL NORTH."  BUT IT IS NOW SUGGESTED THAT
THOSE RESPONSIBLE FOR THE PROMULGATION OF THAT ORDER DID NOT REALLY
INTEND TO SET ASIDE ALL THE LAND UP TO THE "FIRST STANDARD PARALLEL
NORTH," DESPITE THE EXPLICIT LANGUAGE USED.  IT IS SAID, RATHER, THAT
THE ORDER ACTUALLY WAS DESIGNED TO AFFECT ONLY THE WHITE RIVER VALLEY
LANDS - LANDS WHICH ARE SOME NINE MILES SOUTH OF THE "FIRST STANDARD
PARALLEL NORTH."  THAT INTERPRETATION OF THE INTENT OF THE FRAMERS OF
THE ORDER WOULD MAKE THE NORTHERN BOUNDARY OF THE EXECUTIVE ORDER LAND
COTERMINOUS WITH THE NORTHERN BOUNDARY OF THE TRUE TREATY RESERVATION. 

BUT THERE IS NOTHING IN THE FINDINGS OF THE COURT OF CLAIMS TO
JUSTIFY SUCH AN INTERPRETATION.  TO DISREGARD THE PLAIN WORDS OF THE
ORDER BY SUBTRACTING A NINE-MILE STRIP FROM A CLEARLY WORDED
DESCRIPTION REQUIRES DEFINITE FINDINGS TO THAT EFFECT WHICH ARE
SUPPORTED BY THE RECORD.  IT IS NOT OUR FUNCTION, OF COURSE, TO SUPPLY
THOSE FINDINGS OURSELVES.  NOR CAN WE INFER THEM FROM THE DECISION OF
THE COURT OF CLAIMS.  THAT COURT ALONE HAS THE POWER AND THE DUTY TO
MAKE THE NECESSARY FINDINGS ON MATERIAL ISSUES.  53 STAT. 752, 28
U.S.C. SEC. 288; UNITED STATES V. CAUSBY, 328 U.S. 256, 267-268.  IF IT
IS MATERIAL THAT THE FRAMERS OF THE EXECUTIVE ORDER INTENDED TO SET
ASIDE LESS LAND THAN THAT DESCRIBED IN THE ORDER, THE CASE SHOULD BE
REMANDED TO THE COURT OF CLAIMS SO THAT IT CAN MAKE THE NECESSARY
FINDINGS IN THIS RESPECT. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS JOIN IN THIS
DISSENT. 
..END :








ANGEL V. BULLINGTON, 330 U.S. 183 


NO. 31.  ARGUED MARCH 5, 1946.  REARGUED NOVEMBER 18, 19, 1946.  -
DECIDED FEBRUARY 17, 1947.  - 150 F.2D 679, REVERSED. 


A CITIZEN OF VIRGINIA SUED A CITIZEN OF NORTH CAROLINA IN A STATE
COURT OF NORTH CAROLINA FOR A DEFICIENCY JUDGMENT ON NOTES FOR THE
PURCHASE PRICE OF LAND IN VIRGINIA SECURED BY A DEED OF TRUST ON THE
LAND.  THE DEFENDANT DEMURRED, RELYING ON N.C.L., 1933, C. 36, MICHIE'S
N.C. CODE SEC. 2593(F), WHICH PROVIDES THAT THE HOLDER OF SUCH A NOTE
"SHALL NOT BE ENTITLED TO A DEFICIENCY JUDGMENT."  THE TRIAL COURT
OVERRULED THE DEMURRER AND THE DEFENDANT APPEALED TO THE STATE SUPREME
COURT.  THERE THE PLAINTIFF CONTENDED THAT THE FEDERAL CONSTITUTION
PRECLUDED THE STATE FROM CLOSING THE DOORS OF ITS COURTS TO HIM. 
DISCLAIMING ANY INTENTION OF PASSING ON ANY QUESTION OF SUBSTANTIVE
LAW, THE STATE SUPREME COURT HELD THAT THE STATE STATUTE DENIED THE
STATE COURTS JURISDICTION TO GRANT THE RELIEF SOUGHT.  ACCORDINGLY, IT
REVERSED THE TRIAL COURT AND DISMISSED THE SUIT.  WITHOUT APPEALING TO
THIS COURT, THE PLAINTIFF BROUGHT A NEW SUIT IN A FEDERAL DISTRICT
COURT IN NORTH CAROLINA ON THE GROUND OF DIVERSITY OF CITIZENSHIP,
SEEKING THE SAME RELIEF AGAINST THE SAME DEFENDANT ON THE SAME CLAIM. 
HELD:  THE IDENTICAL ISSUE HAVING BEEN FINALLY ADJUDICATED IN THE STATE
COURTS AND THE CAUSE OF ACTION BEING BARRED THERE, IT MAY NOT BE
RELITIGATED IN THE FEDERAL COURTS.  PP. 186-193. 

(A)  THE FEDERAL QUESTION AS TO THE CONSTITUTIONALITY OF THE STATE
STATUTE HAVING BEEN CLEARLY RAISED IN THE STATE SUPREME COURT, IT
NECESSARILY WAS ADJUDICATED BY THAT COURT, NOTWITHSTANDING THE COURT'S
DISCLAIMER OF ANY INTENTION TO PASS ON ANY QUESTION OF "SUBSTANTIVE
LAW."  PP. 187-188. 

(B)  THE PLAINTIFF COULD HAVE APPEALED TO THIS COURT.  SINCE HE
ELECTED NOT TO DO SO, THE DECISION OF THE STATE SUPREME COURT BECAME A
FINAL ADJUDICATION OF THAT QUESTION AS TO THIS CAUSE OF ACTION.  PP.
188-190. 

(C)  SINCE THE ONLY ISSUE IN THE STATE COURTS WAS WHETHER ALL COURTS
OF THE STATE WERE CLOSED TO THE LITIGATION AND THE STATE SUPREME COURT
HELD THAT THEY WERE, THEREBY DENYING ENFORCEMENT OF AN ASSERTED FEDERAL
CLAIM, THE "MERITS" OF THE CONTROVERSY WERE ADJUDICATED IN THE ONLY
SENSE THAT ADJUDICATION OF THE "MERITS" IS RELEVANT TO THE PRINCIPLES
OF RES JUDICATA.  PP. 190-191. 

(D)  THE DECISION OF THE STATE SUPREME COURT CLOSED THE DOOR NOT ONLY
TO THE SUIT IN THE STATE COURTS BUT ALSO TO A SIMILAR SUIT IN A FEDERAL
COURT IN NORTH CAROLINA BASED ON DIVERSITY OF CITIZENSHIP, SINCE A
FEDERAL COURT IN SUCH A SUIT MUST FOLLOW STATE LAW AND POLICY.  ERIE R.
CO. V. TOMPKINS, 304 U.S. 64.  PP. 191-192. 

ANGEL V. BULLINGTON. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

IN A SUIT BY A CITIZEN OF VIRGINIA AGAINST A CITIZEN OF NORTH
CAROLINA, THE SUPREME COURT OF NORTH CAROLINA HELD THAT N.C.L., 1933,
C. 36, MICHIE'S N.C. CODE SEC. 2593(F) DENIED THE STATE COURTS
JURISDICTION TO GRANT A DEFICIENCY JUDGMENT ON A PURCHASE-MONEY NOTE
SECURED BY A DEED OF TRUST ON LAND IN VIRGINIA.  220 N.C. 18, 16 S.E.2D
411.  THE PLAINTIFF IN THAT SUIT THEN BROUGHT A NEW SUIT ON THE SAME
CLAIM IN A FEDERAL DISTRICT COURT IN NORTH CAROLINA ON GROUNDS OF
DIVERSITY OF CITIZENSHIP.  THE DISTRICT COURT GAVE JUDGMENT FOR THE
PLAINTIFF.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  150 F.2D 679.  THIS
COURT GRANTED CERTIORARI.  326 U.S. 713.  REVERSED, P. 193. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN 1940, BULLINGTON, A CITIZEN OF VIRGINIA, SOLD LAND IN VIRGINIA TO
ANGEL, A CITIZEN OF NORTH CAROLINA.  ONLY PART OF THE PURCHASE PRICE
WAS PAID.  FOR THE BALANCE, ANGEL EXECUTED A SERIES OF NOTES SECURED BY
A DEED OF TRUST ON THE LAND.  UPON DEFAULT ON ONE OF THE NOTES,
BULLINGTON, ACTING UPON AN ACCELERATION CLAUSE IN THE DEED, CAUSED ALL
OTHER NOTES TO BECOME DUE AND CALLED UPON THE TRUSTEES TO SELL THE
LAND.  THE SALE WAS DULY MADE IN VIRGINIA AND THE PROCEEDS OF THE SALE
APPLIED TO THE PAYMENT OF THE NOTES.  THIS CONTROVERSY CONCERNS
ATTEMPTS TO COLLECT THE DEFICIENCY. 

BULLINGTON BEGAN SUIT FOR THE DEFICIENCY IN THE SUPERIOR COURT OF
MACON COUNTY, NORTH CAROLINA.  ANGEL COUNTERED WITH A DEMURRER, THE
SUBSTANCE OF WHICH WAS THAT A STATUTE OF NORTH CAROLINA (C. 36, PUBLIC
LAWS 1933, MICHIE'S CODE SEC. 2593(F)) PRECLUDED RECOVERY OF SUCH A
DEFICIENCY JUDGMENT.  THIS IS THE RELEVANT PORTION OF THAT ENACTMENT: 

"IN ALL SALES OF REAL PROPERTY BY MORTGAGEES AND/OR TRUSTEES UNDER
POWERS OF SALE CONTAINED IN ANY MORTGAGE OR DEED OF TRUST HEREAFTER
EXECUTED,  ...  THE MORTGAGEE OR TRUSTEE OR HOLDER OF THE NOTES SECURED
BY SUCH MORTGAGE OR DEED OF TRUST SHALL NOT BE ENTITLED TO A DEFICIENCY
JUDGMENT ON ACCOUNT OF SUCH MORTGAGE, DEED OF TRUST OR OBLIGATION
SECURED BY THE SAME:..." 

THE SUPERIOR COURT OVERRULED THE DEMURRER, AND AN APPEAL TO THE
SUPREME COURT OF NORTH CAROLINA FOLLOWED.  BULLINGTON SUPPORTED HIS
SUPERIOR COURT JUDGMENT ON THE GROUND THAT THE UNITED STATES
CONSTITUTION PRECLUDED NORTH CAROLINA FROM SHUTTING THE DOORS OF ITS
COURTS TO HIM.  THE NORTH CAROLINA SUPREME COURT, HOLDING THAT THE
NORTH CAROLINA ACT OF 1933 BARRED BULLINGTON'S SUIT AGAINST ANGEL,
REVERSED THE SUPERIOR COURT AND DISMISSED THE ACTION.  220 N.C. 18, 16
S.E.2D 411.  BULLINGTON DID NOT SEEK TO REVIEW THIS JUDGMENT HERE. 
INSTEAD, HE SUED ANGEL FOR THE DEFICIENCY IN THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA.  ANGEL PLEADED IN BAR
THE JUDGMENT IN THE NORTH CAROLINA ACTION.  THE DISTRICT COURT GAVE
JUDGMENT FOR BULLINGTON, 56 F.SUPP.  372, AND THE CIRCUIT COURT OF
APPEALS FOR THE FOURTH CIRCUIT AFFIRMED.  150 F.2D 679.  WE GRANTED
CERTIORARI, 326 U.S. 713, BECAUSE THE FAILURE TO DISMISS THIS ACTION,
ON THE GROUND THAT THE JUDGMENT IN THE NORTH CAROLINA COURT PRECLUDED
THE RIGHT THEREAFTER TO RECOVER ON THE SAME CAUSE OF ACTION IN THE
FEDERAL COURT, PRESENTED AN IMPORTANT QUESTION IN THE ADMINISTRATION OF
JUSTICE. 

1.  WE START WITH THE FACT THAT THE PREVAILING RULE AS TO RES
JUDICATA IS SETTLED LAW IN NORTH CAROLINA.  AN ADJUDICATION BARS FUTURE
LITIGATION BETWEEN THE SAME PARTIES NOT ONLY AS TO ALL ISSUES ACTUALLY
RAISED AND DECIDED BUT ALSO AS TO THOSE WHICH COULD HAVE BEEN RAISED. 
SOUTHERN DISTRIBUTING CO. V. CARRAWAY, 196 N.C. 58, 60-61, 144 S.E.
535, 537; MOORE V. HARKINS, 179 N.C. 167, 101 S.E. 564.  WHEN THE
DISPOSITION OF A PRIOR LITIGATION IS INVOKED AS A BAR TO AN ACTION, THE
IDENTITY OF THE CAUSES OF ACTION IN THE TWO SUITS IS USUALLY THE BONE
OF CONTENTION.  ON THIS SCORE THERE CAN HERE BE NO CONTROVERSY.  IT IS
INDISPUTABLE THAT THE PARTIES, THE NATURE OF THE CLAIM AND THE DESIRED
RELIEF WERE PRECISELY THE SAME IN THE TWO ACTIONS SUCCESSIVELY BROUGHT
BY BULLINGTON AGAINST ANGEL, FIRST IN THE SUPERIOR COURT OF MACON
COUNTY AND THEN IN THE FEDERAL DISTRICT COURT.  FOR ALL PRACTICAL
PURPOSES, THE COMPLAINT IN THE PRESENT ACTION WAS A CARBON COPY OF THE
COMPLAINT IN THE STATE COURT ACTION.  IF THE NORTH CAROLINA ACTION HAD
BEEN DISMISSED BECAUSE IT WAS BROUGHT IN ONE NORTH CAROLINA COURT
RATHER THAN IN ANOTHER, OF COURSE NO FEDERAL ISSUE WOULD HAVE BEEN
INVOLVED.  SEE, E.G., WOODS V. NIERSTHEIMER, 328 U.S. 211.  HAD THAT
BEEN THE CASE, A SUIT FOR THE SAME CAUSE OF ACTION COULD HAVE BEEN
INITIATED IN A NORTH CAROLINA FEDERAL DISTRICT COURT, JUST AS ANOTHER
SUIT COULD HAVE BEEN BROUGHT IN THE PROPER NORTH CAROLINA STATE COURT. 
BUT THAT IS NOT THE PRESENT SITUATION.  A QUITE DIFFERENT SITUATION IS
BEFORE US. BEING SOMEWHAT UNUSUAL, IT CALLS FOR A CRITICAL
CONSIDERATION OF THE SCOPE AND PURPOSE OF THE DOCTRINE OF RES
JUDICATA. 

2.  THE JUDGMENT OF THE SUPREME COURT OF NORTH CAROLINA WOULD CLEARLY
BAR THIS SUIT HAD IT BEEN BROUGHT ANEW IN A STATE COURT.  FOR PURPOSES
OF DIVERSITY JURISDICTION A FEDERAL COURT IS, "IN EFFECT, ONLY ANOTHER
COURT OF THE STATE."  GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 108; SEE
TRACTION COMPANY V. MINING COMPANY, 196 U.S. 239, 253; EX PARTE
SCHOLLENBERGER, 96 U.S. 369, 377.  OF COURSE, BULLINGTON COULD NOT HAVE
SUCCEEDED IN THE DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH
CAROLINA AFTER AN ADVERSE JUDGMENT IN THE STATE COURTS, HAD THE
DECISION IN THIS CASE INVOLVED NO FEDERAL GROUND.  THAT IS EQUALLY TRUE
WHERE A FEDERAL QUESTION WAS DECIDED IN THE STATE COURTS.  THAT THE
ADJUDICATION OF FEDERAL QUESTIONS BY THE NORTH CAROLINA SUPREME COURT
MAY HAVE BEEN ERRONEOUS IS IMMATERIAL FOR PURPOSES OF RES JUDICATA. 
BALTIMORE S.S. CO. V. PHILLIPS, 274 U.S. 316, 325.  A HIGHER COURT WAS
AVAILABLE FOR AN AUTHORITATIVE ADJUDICATION OF THE FEDERAL QUESTIONS
INVOLVED.  AND SO THE QUESTION IS WHETHER FEDERAL RIGHTS WERE
NECESSARILY INVOLVED AND ADJUDICATED IN THE LITIGATION IN THE STATE
COURTS. 

3.  FOR PURPOSES OF RES JUDICATA, THE SIGNIFICANCE OF WHAT A COURT
SAYS IT DECIDES IS CONTROLLED BY THE ISSUES THAT WERE OPEN FOR
DECISION.  WHAT WERE THE ISSUES IN THE NORTH CAROLINA LITIGATION? 
BULLINGTON SOUGHT A DEFICIENCY JUDGMENT.  ANGEL, BY DEMURRER, RESISTED
ON THE GROUND THAT A NORTH CAROLINA STATUTE PRECLUDED A DEFICIENCY
JUDGMENT.  THE NORTH CAROLINA SUPREME COURT, REVERSING THE TRIAL COURT,
FOUND THE NORTH CAROLINA STATUTE A BAR TO SUCH A SUIT.  IT SAID THAT 

"THE LIMITATION CREATED BY THE STATUTE IS UPON THE JURISDICTION OF
THE COURT IN THAT IT IS DECLARED THAT THE HOLDER OF NOTES GIVEN TO
SECURE THE PURCHASE PRICE OF REAL PROPERTY 'SHALL NOT BE ENTITLED TO A
DEFICIENCY JUDGMENT ON ACCOUNT' THEREOF.  THIS CLOSES THE COURTS OF
THIS STATE TO ONE WHO SEEKS A DEFICIENCY JUDGMENT ON A NOTE GIVEN FOR
THE PURCHASE PRICE OF REAL PROPERTY.  THE STATUTE OPERATES UPON THE
ADJECTIVE LAW OF THE STATE, WHICH PERTAINS TO THE PRACTICE AND
PROCEDURE, OR LEGAL MACHINERY BY WHICH THE SUBSTANTIVE LAW IS MADE
EFFECTIVE, AND NOT UPON THE SUBSTANTIVE LAW ITSELF.  IT IS A LIMITATION
OF THE JURISDICTION OF THE COURTS OF THIS STATE."  220 N.C. 18, 20, 16
S.E.2D 411, 412. 

BUT THE ALLOWABLE "LIMITATION OF THE JURISDICTION OF THE COURTS" OF
NORTH CAROLINA PRESENTS MORE THAN A QUESTION OF LOCAL LAW FOR
DETERMINATION BY THE NORTH CAROLINA SUPREME COURT.  SPEAKING FOR A
UNANIMOUS COURT, MR. JUSTICE BRANDEIS THUS EXPRESSED THE SUBORDINATION
TO THE REQUIREMENTS OF THE CONSTITUTION OF THE POWER OF A STATE TO
WITHDRAW JURISDICTION FROM ITS COURTS:  "THE POWER OF A STATE TO
DETERMINE THE LIMITS OF THE JURISDICTION OF ITS COURTS AND THE
CHARACTER OF THE CONTROVERSIES WHICH SHALL BE HEARD IN THEM IS, OF
COURSE, SUBJECT TO THE RESTRICTIONS IMPOSED BY THE FEDERAL
CONSTITUTION."  MCKNETT V. ST. LOUIS & S.F. RY. CO., 292 U.S. 230,
233.  THE CONTRACT CLAUSE, THE FULL FAITH AND CREDIT CLAUSE, THE
PRIVILEGES OR IMMUNITIES CLAUSE, ALL FETTER THE FREEDOM OF A STATE TO
DENY ACCESS TO ITS COURTS HOWSOEVER MUCH IT MAY REGARD SUCH WITHDRAWAL
OF JURISDICTION "THE ADJECTIVE LAW OF THE STATE," OR THE EXERCISE OF
ITS RIGHT TO REGULATE "THE PRACTICE AND PROCEDURE" OF ITS COURTS. 
BRODERICK V. ROSNER, 294 U.S. 629, 642.  A STATE "CANNOT ESCAPE ITS
CONSTITUTIONAL OBLIGATIONS BY THE SIMPLE DEVICE OF DENYING JURISDICTION
IN SUCH CASES TO COURTS OTHERWISE COMPETENT."  KENNEY V. SUPREME LODGE,
252 U.S. 411, 415; AND SEE WHITE V. HART, 13 WALL.  646.  THIS
PERVASIVE PRINCIPLE OF OUR FEDERAL LAW, CONSTITUTIONAL AND STATUTORY,
WAS THUS PUT BY MR. JUSTICE HOLMES:  "WHATEVER SPRINGES THE STATE MAY
SET FOR THOSE WHO ARE ENDEAVORING TO ASSERT RIGHTS THAT THE STATE
CONFERS, THE ASSERTION OF FEDERAL RIGHTS, WHEN PLAINLY AND REASONABLY
MADE, IS NOT TO BE DEFEATED UNDER THE NAME OF LOCAL PRACTICE."  DAVIS
V. WECHSLER, 263 U.S. 22, 24. 

4.  HERE, CLAIMS BASED ON THE UNITED STATES CONSTITUTION WERE PLAINLY
AND REASONABLY MADE IN THE NORTH CAROLINA SUIT.  THE NORTH CAROLINA
SUPREME COURT MET THESE CLAIMS.  IT MET THEM BY SAYING THAT THE NORTH
CAROLINA STATUTE DID NOT DEAL WITH SUBSTANTIVE MATTERS BUT MERELY WITH
MATTERS REGULATING LOCAL PROCEDURE.  BUT WHETHER THE CLAIMS ARE BASED
ON A FEDERAL RIGHT OR ARE MERELY OF LOCAL CONCERN IS ITSELF A FEDERAL
QUESTION ON WHICH THIS COURT, AND NOT THE SUPREME COURT OF NORTH
CAROLINA, HAS THE LAST SAY.  THAT COURT COULD NOT PUT A FEDERAL CLAIM
ASIDE, AS THOUGH IT WERE NOT IN LITIGATION, BY THE TALISMANIC WORD
"JURISDICTION."  WHEN AN ASSERTED FEDERAL RIGHT IS DENIED, THE
SUFFICIENCY OF THE GROUNDS OF DENIAL IS FOR THIS COURT TO DECIDE. 
TITUS V. WALLICK, 306 U.S. 282, 291.  BULLINGTON COULD HAVE COME HERE,
NOT MERELY BY THE GRACE OF THIS COURT ON CERTIORARI, BUT ON APPEAL, AS
DID WHITE IN WHITE V. HART, SUPRA, TO CHALLENGE, SUCCESSFULLY, THE
RIGHT OF GEORGIA TO LIMIT THE JURISDICTION OF THE GEORGIA COURTS; AS
DID THE EAST NEW YORK SAVINGS BANK IN THE RECENT CASE OF EAST NEW YORK
BANK V. HAHN, 326 U.S. 230, TO CHALLENGE, THOUGH UNSUCCESSFULLY, THE
LIMITATION WHICH NEW YORK PLACED UPON THE JURISDICTION OF ITS COURTS. 
CF. KENNEY V. SUPREME LODGE, 252 U.S. 411, 416.  SINCE IT WAS OPEN FOR
BULLINGTON TO COME HERE TO SEEK REVERSAL OF THE DECISION OF THE NORTH
CAROLINA SUPREME COURT SHUTTING HIM OUT OF THE NORTH CAROLINA COURTS
AND HE CHOSE NOT TO DO SO, THE DECISION OF THE NORTH CAROLINA SUPREME
COURT CONCLUDED AN ADJUDICATION OF A FEDERAL QUESTION EVEN THOUGH IT
WAS NOT COUCHED IN THOSE TERMS.  FOR PURPOSES OF LITIGATING THE ISSUES
IN CONTROVERSY IN THE NORTH CAROLINA ACTION, THE NORTH CAROLINA SUPREME
COURT WAS AN INTERMEDIATE TRIBUNAL.  IF A LITIGANT CHOOSES NOT TO
CONTINUE TO ASSERT HIS RIGHTS AFTER AN INTERMEDIATE TRIBUNAL HAS
DECIDED AGAINST HIM, HE HAS CONCLUDED HIS LITIGATION AS EFFECTIVELY AS
THOUGH HE HAD PROCEEDED THROUGH THE HIGHEST TRIBUNAL AVAILABLE TO HIM. 
AN ADJUDICATION OF AN ISSUE IMPLIES THAT A MAN HAD A CHANCE TO WIN HIS
CASE.  THE CHANCE WAS NECESSARILY AFFORDED BY THE NORTH CAROLINA
LITIGATION.  IT WAS IN PROCESS OF DETERMINATION WHEN THE SUPREME COURT
OF NORTH CAROLINA DECIDED IT AGAINST HIM.  HE FOREWENT HIS RIGHT TO
HAVE A HIGHER COURT, THIS COURT, ENABLE HIM TO WIN HIS CHANCE BY
HOLDING THAT HE WAS RIGHT AND THAT THE NORTH CAROLINA SUPREME COURT WAS
WRONG.  HE CANNOT BEGIN ALL OVER AGAIN IN AN ACTION INVOLVING THE SAME
ISSUES BEFORE ANOTHER FORUM IN THE SAME STATE. 

5.  IT IS SUGGESTED THAT THE NORTH CAROLINA SUPREME COURT DID NOT
ADJUDICATE THE "MERITS" OF THE CONTROVERSY.  IT IS A MISCONCEPTION OF
RES JUDICATA TO ASSUME THAT THE DOCTRINE DOES NOT COME INTO OPERATION
IF A COURT HAS NOT PASSED ON THE "MERITS" IN THE SENSE OF THE ULTIMATE
SUBSTANTIVE ISSUES OF A LITIGATION.  AN ADJUDICATION DECLINING TO REACH
SUCH ULTIMATE SUBSTANTIVE ISSUES MAY BAR A SECOND ATTEMPT TO REACH THEM
IN ANOTHER COURT OF THE STATE.  SUCH A SITUATION IS PRESENTED WHEN THE
FIRST DECISION IS BASED NOT ON THE GROUND THAT THE DISTRIBUTION OF
JUDICIAL POWER AMONG THE VARIOUS COURTS OF THE STATE REQUIRES THE SUIT
TO BE BROUGHT IN ANOTHER COURT IN THE STATE, BUT ON THE INACCESSIBILITY
OF ALL THE COURTS OF THE STATE TO SUCH LITIGATION.  AND THAT IS THE
ESSENCE OF THE PRESENT CASE.  THE ONLY ISSUE IN CONTROVERSY IN THE
FIRST NORTH CAROLINA LITIGATION WAS WHETHER OR NOT ALL THE COURTS OF
NORTH CAROLINA WERE CLOSED TO THAT LITIGATION.  THE MERITS OF THAT
ISSUE WERE ADJUDICATED.  AND THAT WAS THE ISSUE RAISED IN THE SECOND
LITIGATION IN NORTH CAROLINA - THAT IN THE FEDERAL DISTRICT COURT.  THE
MERITS OF THIS ISSUE HAVING BEEN ADJUDICATED, THEY CANNOT BE
RELITIGATED. 

THE "MERITS" OF A CLAIM ARE DISPOSED OF WHEN IT IS REFUSED
ENFORCEMENT.  IF AN ASSERTED FEDERAL CLAIM IS DENIED ENFORCEMENT ON A
PROFESSED LOCAL GROUND, BUT A SO-CALLED LOCAL GROUND WHICH IS SUBJECT
TO REVIEW HERE BECAUSE IT IS IN FACT THE ADJUDICATION OF A FEDERAL
QUESTION, THEN THE "MERITS" OF THAT CLAIM WERE ADJUDICATED IN THE ONLY
SENSE THAT ADJUDICATION OF THE "MERITS" IS RELEVANT TO THE PRINCIPLES
OF RES JUDICATA.  A STATE COURT CANNOT STERILIZE FEDERAL CLAIMS BY
PUTTING ON THE ADJUDICATION A LOCAL LABEL.    6.  THE MERITS OF THIS
CONTROVERSY WERE ADJUDICATED BY THE NORTH CAROLINA SUPREME COURT SINCE
THAT COURT, OR THIS COURT ON APPEAL, MIGHT HAVE DECIDED THAT THE NORTH
CAROLINA STATUTE DID NOT BAR BULLINGTON'S FIRST ACTION.  THE NORTH
CAROLINA STATUTE MIGHT HAVE BEEN FOUND UNCONSTITUTIONAL.  FEDERAL
ISSUES WERE THUS INVOLVED IN THE ADJUDICATION BY THE NORTH CAROLINA
SUPREME COURT.  BULLINGTON KNEW THAT THERE WERE FEDERAL ISSUES IN THE
STATE SUIT BECAUSE HE RAISED THEM.  HE WAS THEN CONTENT TO DROP THEM
AND LET THE INTERMEDIATE ADJUDICATION STAND.  NOW HE WANTS AN ENCORE. 
7.  IT IS SUGGESTED THAT THE NORTH CAROLINA SUPREME COURT CONSTRUED
THE NORTH CAROLINA STATUTE TO CLOSE ONLY THE NORTH CAROLINA STATE
COURTS BUT NOT THE FEDERAL COURT SITTING IN NORTH CAROLINA.  IN THE
FIRST PLACE, THE NORTH CAROLINA SUPREME COURT SAID NO SUCH THING.  IT
CONSTRUED THE STATUTE EXPRESSIVE OF STATE POLICY AND SPOKE ONLY OF THE
JURISDICTION OF THE STATE COURTS BECAUSE IT WAS CONCERNED ONLY WITH THE
STATE COURTS.  SECONDLY, IT IS MOST INCONGRUOUS TO ATTRIBUTE TO THE
LEGISLATURE AND JUDICIARY OF NORTH CAROLINA THE IMPOSITION OF A
RESTRICTION AGAINST ALL ITS CITIZENS FROM SUING FOR A DEFICIENCY
JUDGMENT, WHILE IMPLIEDLY AUTHORIZING CITIZENS OF OTHER STATES TO
SECURE SUCH DEFICIENCY JUDGMENTS AGAINST NORTH CAROLINIANS.  THIRDLY, A
NORTH CAROLINA STATUTE, UPHELD BY THE HIGHEST COURT OF NORTH CAROLINA,
IS OF COURSE EXPRESSIVE OF NORTH CAROLINA POLICY.  THE ESSENCE OF
DIVERSITY JURISDICTION IS THAT A FEDERAL COURT ENFORCES STATE LAW AND
STATE POLICY.  IF NORTH CAROLINA HAS AUTHORITATIVELY ANNOUNCED THAT
DEFICIENCY JUDGMENTS CANNOT BE SECURED WITHIN ITS BORDERS, IT
CONTRADICTS THE PRESUPPOSITIONS OF DIVERSITY JURISDICTION FOR A FEDERAL
COURT IN THAT STATE TO GIVE SUCH A DEFICIENCY JUDGMENT.  NORTH CAROLINA
WOULD HARDLY ALLOW DEFEAT OF A STATE-WIDE POLICY THROUGH OCCASIONAL
SUITS IN A FEDERAL COURT.  WHAT IS MORE IMPORTANT, DIVERSITY
JURISDICTION MUST FOLLOW STATE LAW AND POLICY.  A FEDERAL COURT IN
NORTH CAROLINA, WHEN INVOKED ON GROUNDS OF DIVERSITY OF CITIZENSHIP,
CANNOT GIVE THAT WHICH NORTH CAROLINA HAS WITHHELD.  AVAILABILITY OF
DIVERSITY JURISDICTION WHICH WAS PUT INTO THE CONSTITUTION SO AS TO
PREVENT DISCRIMINATION AGAINST OUTSIDERS IS NOT TO EFFECT
DISCRIMINATION AGAINST THE GREAT BODY OF LOCAL CITIZENS. 

CASES LIKE LUPTON'S SONS CO. V. AUTOMOBILE CLUB, 225 U.S. 489, ARE
OBSOLETE INSOFAR AS THEY ARE BASED ON A VIEW OF DIVERSITY JURISDICTION
WHICH CAME TO AN END WITH ERIE RAILROAD V. TOMPKINS, 304 U.S. 64.  THAT
DECISION DRASTICALLY LIMITED THE POWER OF FEDERAL DISTRICT COURTS TO
ENTERTAIN SUITS IN DIVERSITY CASES THAT COULD NOT BE BROUGHT IN THE
RESPECTIVE STATE COURTS OR WERE BARRED BY DEFENSES CONTROLLING IN THE
STATE COURTS.  COMPARE SUYDAM V. BROADNAX, 14 PET. 67, 75.  OF COURSE,
WHERE RESORT IS HAD TO A FEDERAL COURT NOT ON GROUNDS OF DIVERSITY OF
CITIZENSHIP BUT BECAUSE A FEDERAL RIGHT IS CLAIMED, THE LIMITATIONS
UPON THE COURTS OF A STATE DO NOT CONTROL A FEDERAL COURT SITTING IN
THE STATE.  HOLMBERG V. ARMBRECHT, 327 U.S. 392. 

8.  AFTER AN ADVERSE DECISION AGAINST BULLINGTON ON A CAUSE OF ACTION
CREATED BY STATE LAW, BULLINGTON WANTS TO START ALL OVER AGAIN IN
ANOTHER NORTH CAROLINA COURT, ALBEIT A FEDERAL COURT.  THE FIRST
LITIGATION RAISED AND ADJUDICATED FEDERAL ISSUES EVERY ONE OF WHICH IS
AGAIN INVOLVED IN THE SECOND SUIT.  TO ALLOW SUCH A SECOND SUIT IS TO
SAY THAT A FEDERAL RIGHT IN ISSUE IN A STATE COURT EVAPORATES BECAUSE
THE STATE COURT CALLS IT A STATE RIGHT AND THE LITIGANT ACCEPTS THE
DECISION.  IF TOLERATED, OUR FEDERAL SYSTEM WOULD AFFORD FINE
OPPORTUNITIES FOR NEEDLESSLY MULTIPLYING LITIGATION IN THIS WAY.  THE
DOCTRINE OF RES JUDICATA IS A BARRIER AGAINST IT. LITIGATION IS THE
MEANS FOR VINDICATING RIGHTS, BUT IT MAY ALSO INVOLVE UNWARRANTED
FRICTION AND WASTE.  THE DOCTRINE OF RES JUDICATA REFLECTS THE REFUSAL
OF LAW TO TOLERATE NEEDLESS LITIGATION.  LITIGATION IS NEEDLESS IF, BY
FAIR PROCESS, A CONTROVERSY HAS ONCE GONE THROUGH THE COURTS TO
CONCLUSION.  COMPARE, E.G., HAZEL-ATLAS CO. V. HARTFORD CO., 322 U.S.
238, 244.  AND IT HAS GONE THROUGH, IF ISSUES THAT WERE OR COULD HAVE
BEEN DEALT WITH IN AN EARLIER LITIGATION ARE RAISED ANEW BETWEEN THE
SAME PARTIES.  CHICOT COUNTY DIST. V. BANK, 308 U.S. 371.  JUDGMENT
REVERSED. 

MR. JUSTICE REED, DISSENTING. 

MY UNDERSTANDING OF THE COURT'S DECISION IS THAT THE DOCTRINE OF RES
JUDICATA, THAT IS A FORMER ADJUDICATION, DEFEATS BULLINGTON'S CLAIM
AGAINST ANGEL.  THE OPINION IS LIMITED TO THAT POINT.  IN MY VIEW THE
CONCLUSION REACHED BY THE COURT IS ERRONEOUS.  TO NARROW THE LINE OF MY
DISAGREEMENT, I SHALL STATE THE ISSUES TREATED IN THE OPINION WITH
WHICH I AGREE.  THE CAUSES OF ACTION AND THE PARTIES IN THE TWO SUITS
ARE IDENTICAL.  FEDERAL QUESTIONS WERE RAISED BY BULLINGTON'S
CONTENTION THAT THE NORTH CAROLINA STATUTE, SUFFICIENTLY QUOTED AT THE
BEGINNING OF THE COURT'S OPINION, MICHIE'S CODE, 2593(F), WAS
UNCONSTITUTIONAL BY FEDERAL TESTS BECAUSE IT BARRED THE NORTH CAROLINA
COURTS TO BULLINGTON'S SUIT ON HIS NOTES.  IT IS IMMATERIAL, FOR THE
PURPOSES OF DETERMINING THE AVAILABILITY OF A PLEA OF RES JUDICATA,
WHETHER THE NORTH CAROLINA JUDGMENT WAS ERRONEOUS OR NOT.  I AGREE,
FURTHER, THAT, ON THE GROUND THAT A STATE CANNOT BAR THIS CAUSE OF
ACTION FROM ITS COURTS, BULLINGTON COULD HAVE HAD REVIEW IN THIS COURT
OF THE NORTH CAROLINA JUDGMENT AND THAT THIS COURT, IF IT DID NOT
CONCLUDE THAT THE NORTH CAROLINA JUDGMENT RESTED ON AN ADEQUATE STATE
GROUND, COULD HAVE FINALLY SETTLED THAT FEDERAL CONSTITUTIONAL ISSUE. 

THE REASONING OF THE COURT LEADS TO THE ANNOUNCED RESULT BECAUSE OF
THESE PRESUPPOSITIONS WITH WHICH I DIFFER:  (I) "FOR PURPOSES OF RES
JUDICATA, THE SIGNIFICANCE OF WHAT A COURT SAYS IT DECIDES IS
CONTROLLED BY THE ISSUES THAT WERE OPEN FOR DECISION."  (II) "THE
'MERITS' OF A CLAIM ARE DISPOSED OF WHEN IT IS REFUSED ENFORCEMENT." 
(III) "SINCE IT WAS OPEN FOR BULLINGTON TO COME HERE TO SEEK REVERSAL
OF THE DECISION OF THE NORTH CAROLINA SUPREME COURT SHUTTING HIM OUT OF
THE NORTH CAROLINA COURTS AND HE CHOSE NOT TO DO SO, THE DECISION OF
THE NORTH CAROLINA SUPREME COURT CONCLUDED AN ADJUDICATION OF A FEDERAL
QUESTION EVEN THOUGH IT WAS NOT COUCHED IN THOSE TERMS."  (IV) "FOR
PURPOSES OF DIVERSITY JURISDICTION A FEDERAL COURT IS, 'IN EFFECT, ONLY
ANOTHER COURT OF THE STATE.'"  "HE CANNOT BEGIN ALL OVER AGAIN IN AN
ACTION INVOLVING THE SAME ISSUES BEFORE ANOTHER FORUM IN THE SAME
STATE." 

I. TO SAY THAT FOR PURPOSES OF RES JUDICATA THE SIGNIFICANCE OF WHAT
A COURT SAYS IT DECIDES IS CONTROLLED BY THE ISSUES, ANNOUNCES A RULE
WHICH, SO FAR AS I KNOW, HAS NO PRIOR AUTHORITY.  TO ADOPT SUCH A RULE
IS TO DECLARE THAT A DECISION IN A CAUSE OF ACTION IS FINAL BETWEEN THE
SAME PARTIES ALTHOUGH THE COURT SPECIFICALLY RESERVES CERTAIN QUESTIONS
NOT NECESSARY FOR ITS DECISION.  RES JUDICATA SETTLES ALL QUESTIONS
WHICH WERE RAISED OR THOSE THAT MIGHT HAVE BEEN RAISED BUT IT SETTLES
THEM IN ACCORDANCE WITH THE DECISION THAT IS MADE.  OF COURSE, WHEN A
DECISION IS UPON THE MERITS, A MATTER DISCUSSED LATER, THE ENTIRE CAUSE
OF ACTION IS ADJUDICATED FINALLY.  BUT THIS NORTH CAROLINA ADJUDICATION
WAS NOT UPON THE MERITS.  IT WAS UPON A QUESTION OF JUDICIAL POWER. 
THE PERTINENT EXCERPTS FROM THE OPINION APPEAR BELOW.  FN1  THE FACT
THAT OTHER ISSUES, GOING TO THE MERITS OF THE CAUSE OF ACTION, MIGHT
HAVE BEEN DECIDED SEEMS IMMATERIAL. 

THE RULE WHICH I CONSIDER SOUND APPEARS IN THE RESTATEMENT OF THE
LAW, JUDGMENTS SEC. 49, AS FOLLOWS: 

"WHERE A VALID AND FINAL PERSONAL JUDGMENT NOT ON THE MERITS IS
RENDERED IN FAVOR OF THE DEFENDANT, THE PLAINTIFF IS NOT THEREBY
PRECLUDED FROM THEREAFTER MAINTAINING AN ACTION ON THE ORIGINAL CAUSE
OF ACTION AND THE JUDGMENT IS CONCLUSIVE ONLY AS TO WHAT IS ACTUALLY
DECIDED." 

THE WAY TO KNOW WHAT WAS ACTUALLY DECIDED IN THIS CASE IS TO READ THE
APPLICABLE PORTION OF THE OPINION PRINTED IN THE PRECEDING NOTE.  THE
RESULT OF THE DECISION WAS TO LEAVE THE CAUSE OF ACTION UNAFFECTED
BECAUSE WHEN A STATE DENIES A REMEDY, IT LEAVES "UNIMPAIRED THE
PLAINTIFF'S SUBSTANTIVE RIGHT, SO THAT HE IS FREE TO ENFORCE IT
ELSEWHERE."  BRADFORD ELECTRIC CO. V. CLAPPER, 286 U.S. 145, 160;
DALTON V. WEBSTER, 82 N.C. 279. 

II.  IT IS NOW TO BE CONSIDERED WHETHER OR NOT THIS JUDGMENT OF THE
STATE COURT WAS ON THE MERITS.  THAT COURT SAID IT HAD NO "POWER TO
RENDER A JUDGMENT FOR THE PLAINTIFF IN THE CAUSE OF ACTION ALLEGED." 
THIS COURT NOW SAYS THAT SUCH A DECISION IS A DISPOSITION ON THE
MERITS.  EVIDENTLY WHAT IS MEANT IS THAT WHEN A LITIGANT, WHO HAS
RAISED A FEDERAL CONSTITUTIONAL QUESTION, HAS HIS CASE DISMISSED ON THE
GROUND THAT THE COURT "HAS NO POWER TO RENDER A JUDGMENT FOR THE
PLAINTIFF IN THE CAUSE OF ACTION ALLEGED," THERE IS A JUDGMENT ON THE
MERITS ON THE CONSTITUTIONAL QUESTION AS WELL AS UPON THE RIGHT TO
RECOVER IN NORTH CAROLINA ON ANY OTHER GROUND.  IF WE HAVE POWER TO
DECLARE THAT IT "CONCLUDED AN ADJUDICATION OF A FEDERAL QUESTION EVEN
THOUGH IT WAS NOT COUCHED IN THOSE TERMS," I WOULD REACH THE OPPOSITE
CONCLUSION BASED UPON WHAT THE NORTH CAROLINA COURT DID.  IN MY VIEW,
THE NORTH CAROLINA COURT MERELY DECIDED THAT IT HAD NO POWER TO
ADJUDICATE THE CAUSE OF ACTION.  CERTAINLY THE STATE COURT HAD THE
POWER TO INTERPRET ITS OWN STATUTE.  KNIGHTS OF PYTHIAS V. MEYER, 265
U.S. 30, 32; CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568.  THE WITHDRAWAL
OF JURISDICTION SURELY DOES NOT MAKE A JUDGMENT ONE UPON THE MERITS. 
THE STATE COURT CITED EX PARTE MCCARDLE, 7 WALL.  506, TO EMPHASIZE
WHAT IT MEANT.  IF THERE WAS A SUIT ON THIS NOTE IN A FEDERAL COURT ON
AN ALLEGATION OF DIVERSITY OF CITIZENSHIP AND THE FEDERAL COURT
DISMISSED THE SUIT WITH AN OPINION SAYING THAT THE CASE WAS DISMISSED
BECAUSE OF LACK OF JURISDICTION, E.G. PROOF OF NON-DIVERSITY OF
CITIZENSHIP, NO STATE COURT WOULD HOLD THAT THERE HAD BEEN A DECISION
UPON THE MERITS.  WHERE THERE IS NO JURISDICTION OF THE SUBJECT OF THE
ACTION THE JUDGMENT IS NOT UPON THE MERITS.  STOLL V. GOTTLIEB, 305
U.S. 165, 171-172.  OF COURSE, IF THERE IS A JUDGMENT UPON THE MERITS,
THAT JUDGMENT WOULD BE BINDING ON BOTH FEDERAL AND STATE COURTS.  EVEN
IF THE NORTH CAROLINA DECISION IS NOT UPON THE MERITS, IT IS CONCLUSIVE
ON NORTH CAROLINA COURTS AND UPON FEDERAL COURTS IN NORTH CAROLINA, IF
THOSE FEDERAL COURTS ARE COURTS OF THE STATE OF NORTH CAROLINA IN THE
SENSE THAT THEY MUST FOLLOW STATE DECISIONS UPON THE POWER OF STATE
COURTS, UNDER THE RULE OF GUARANTY TRUST CO. V. YORK, 326 U.S. 99.  I
DO NOT THINK THAT THE GUARANTY RULE APPLIES.  SEE SUBDIVISION IV. 

III.  IF THE TWO PRECEDING NUMBERED DIVISIONS OF THIS OPINION ARE
SOUND, THERE WAS NO OCCASION FOR BULLINGTON TO SEEK A REVIEW OF THE
FIRST JUDGMENT IN THIS COURT.  HE WAS IN THE POSITION OF THE OWNER OF A
CAUSE OF ACTION, DISMISSED BECAUSE PREMATURELY BROUGHT OR BROUGHT IN
THE WRONG COUNTY.  THE JUDGMENT THAT THE SUPREME COURT OF NORTH
CAROLINA ORDERED WAS "DISMISSED," NOT ON THE MERITS, NOT WITH
PREJUDICE, AND NOT JUDGMENT FOR THE DEFENDANT, BUT A SIMPLE DISMISSAL. 
NORTH CAROLINA MIGHT HAVE DECLARED, BY STATUTE, THAT NO CAUSE OF ACTION
WOULD BE RECOGNIZED IN NORTH CAROLINA FOR THE RECOVERY OF A DEFICIENCY
ON A MORTGAGE INDEBTEDNESS.  INSTEAD OF THIS, WE ARE TOLD,
AUTHORITATIVELY, BY THE SUPREME COURT OF NORTH CAROLINA THAT NORTH
CAROLINA HAS WITHDRAWN THE JURISDICTION OF ITS COURTS FROM SUCH A CAUSE
OF ACTION.  THIS PRODUCES QUITE A DIFFERENT SITUATION. 

IV.  THE PITH OF THE PROBLEM, AS I SEE IT, IS LAID BARE BY THE
FOREGOING DIFFERENTIATIONS.  IT CONSISTS OF THE QUESTION WHETHER THE
NORTH CAROLINA DECISION ESTABLISHES A CONTROLLING RULE OF LAW UPON THE
CONSTITUTIONALITY OF THE STATE STATUTE AS TESTED BY THE FEDERAL
CONSTITUTION OR ADJUDICATES THAT THE STATUTE MERELY WITHDRAWS
JURISDICTION FROM STATE COURTS OVER A TYPE OF ACTION.  THIS COURT
CONCLUDES THAT THE STATE DECISION DETERMINED THE CONSTITUTIONALITY OF
THE STATUTE AND THAT ITS HOLDING WAS BINDING ON ALL FEDERAL COURTS IN
NORTH CAROLINA, AS WELL AS STATE COURTS.  THIS IDEA IS COMPREHENDED IN
THE COURT'S OPINION BY THE STATEMENTS THAT THE FEDERAL COURTS ARE
COURTS OF THE STATE IN DIVERSITY CASES AND THAT A LITIGANT CANNOT STOP
WITH AN INTERMEDIATE COURT DECISION AGAINST HIM AND BEGIN A NEW
LITIGATION ON THE SAME CAUSE OF ACTION. 

THE COURT REACHES THE CONCLUSION THAT RES JUDICATA SHOULD APPLY BY AN
APPLICATION OF ERIE RAILROAD V. TOMPKINS, 304 U.S. 64, AND GUARANTY
TRUST CO. V. YORK, 326 U.S. 99.  THE TEACHING OF THOSE CASES IS
ACCEPTED BY ME.  THEY LEAD TO THE CONCLUSION THAT IN DIVERSITY CASES,
LEGAL OR EQUITABLE, AND THIS PROCEEDING IS A DIVERSITY CASE, THE
FEDERAL COURTS IN A STATE APPLY THE LAW OF THAT STATE IN MATTERS OF
SUBSTANTIVE LAW.  IN MATTERS OF PROCEDURE AND JURISDICTION, I TAKE IT,
NO ONE WOULD CONTEND THAT THE DOCTRINE OF ERIE RAILROAD IS APPLICABLE. 
ONE MAY REGRET THAT THE LINE OF THE GREAT DIVIDE BETWEEN SUBSTANCE AND
PROCEDURE CANNOT BE CLEARLY MARKED SO THAT ALL MAY AGREE AS TO ITS
LOCATION IN ANY ONE CASE.  BUT THAT LINE EXISTS.  WE HAVE SAID THAT
FEDERAL COURTS MUST FOLLOW THE LAW OF THE STATE AS TO BURDEN OF PROOF. 
CITIES SERVICE CO. V. DUNLAP, 308 U.S. 208; PALMER V. HOFFMAN, 318 U.S.
109, 117; AS TO CONFLICT OF LAWS, GRIFFIN V. MCCOACH, 313 U.S. 498;
KLAXON CO. V. STENTOR CO., 313 U.S. 487, AND AS TO STATE STATUTES OF
LIMITATION IN EQUITY CASES, GUARANTY TRUST CO. V. YORK, SUPRA.  THE
REASON FOR THESE CONCLUSIONS IS TO GAIN THE DESIRABLE END OF A SYMMETRY
OF LAW WITHIN EACH STATE.  THE MOMENTUM OF THE OPINIONS, JUST CITED,
AND OF THE DESIRE FOR UNIFORMITY SHOULD NOT CAUSE US TO DISREGARD THE
RULE THAT STATE LAW, STATUTORY OR JUDICIAL, DIRECTED AT REMEDIES OR
POWERS OF COURTS, CANNOT AFFECT THE FEDERAL SYSTEM.  EACH OF THE CASES
JUST CITED FOLLOWS THE DECLARATIONS OF STATE LAW BY STATE COURTS.  IN
THIS CASE, THIS COURT DEPARTS FROM THE STATE COURT'S INTERPRETATION OF
THE MEANING OF A STATE STATUTE IN ORDER TO BRING ABOUT THE FEDERAL
POLICY OF UNIFORMITY.  BY THIS, THE COURT DEPARTS FROM THE SOUND RULE
THAT A STATE COURT'S INTERPRETATION OF STATE STATUTES IS BINDING ON
FEDERAL COURTS.  IN REACHING THE CONCLUSION WHICH IT DOES, THIS COURT
DECIDES THAT IF A STATE COURT DOES NOT HAVE POWER TO ADJUDICATE A
CAUSE, NEITHER DOES A FEDERAL COURT IN THAT STATE.  IT ALSO DEPARTS
FROM CONTROLLING PRECEDENTS THAT STATE ENACTMENTS ON JURISDICTION,
REMEDIES AND PROCEDURES DO NOT AFFECT THE JURISDICTION, REMEDIES OR
PROCEDURES OF FEDERAL COURTS.  IT IS TRUE THAT THESE ANTEDATE THE ERIE
CASE BUT THAT CASE DID NOT CHANGE THE STATE AND FEDERAL JURISDICTION. 

IN PUSEY & JONES CO. V. HANSSEN, 261 U.S. 491, THIS COURT HELD THAT
AN AUTHORITY GIVEN BY DELAWARE TO ITS CHANCELLOR TO APPOINT A RECEIVER
FOR AN INSOLVENT CORPORATION ON THE APPLICATION OF ANY CREDITOR DID NOT
GIVE ADDITIONAL POWER TO THE FEDERAL COURT TO APPOINT A RECEIVER IN A
DIVERSITY CASE ON THE APPLICATION OF A SIMPLE CREDITOR ALTHOUGH THE
FEDERAL COURTS HAD LONG EXERCISED THE RIGHT TO APPOINT RECEIVERS ON THE
APPLICATION OF A SECURED CREDITOR.  THIS COURT SAID: 

"THAT A REMEDIAL RIGHT TO PROCEED IN A FEDERAL COURT SITTING IN
EQUITY CANNOT BE ENLARGED BY A STATE STATUTE IS LIKEWISE CLEAR, SCOTT
V. NEELY, 140 U.S. 106; CATES V. ALLEN, 149 U.S. 451.  NOR CAN IT BE SO
NARROWED, MISSISSIPPI MILLS V. COHN, 150 U.S. 202; GUFFEY V. SMITH, 237
U.S. 101, 114.  THE FEDERAL COURT MAY THEREFORE BE OBLIGED TO DENY AN
EQUITABLE REMEDY WHICH THE PLAINTIFF MIGHT HAVE SECURED IN A STATE
COURT.  HANSSEN'S CONTENTION IS THAT THE STATUTE DOES NOT ENLARGE THE
EQUITABLE JURISDICTION OR REMEDIES; AND THAT IT CONFERS UPON CREDITORS
OF A DELAWARE CORPORATION, IF THE COMPANY IS INSOLVENT, A SUBSTANTIVE
EQUITABLE RIGHT TO HAVE A RECEIVER APPOINTED.  IF THIS WERE TRUE, THE
RIGHT CONFERRED COULD BE ENFORCED IN THE FEDERAL COURTS, SCOTT V.
NEELY, 140 U.S. 106, 109; SINCE THE PROCEEDING IS IN PLEADING AND
PRACTICE CONFORMABLE TO THOSE COMMONLY ENTERTAINED BY A COURT OF
EQUITY.  BUT IT IS NOT TRUE THAT THIS STATUTE CONFERS UPON THE CREDITOR
A SUBSTANTIVE RIGHT." 

SEE HENRIETTA MILLS V. RUTHERFORD COUNTY, 281 U.S. 121, 127-128;
KELLEAM V. MARYLAND CASUALTY CO., 312 U.S. 377, 382. 

IN LUPTON'S SONS CO. V. AUTOMOBILE CLUB, 225 U.S. 489, THIS COURT
HELD THAT A CONTRACT WHICH COULD NOT BE SUED UPON IN THE COURTS OF NEW
YORK BECAUSE A NEW YORK STATUTE PROVIDED THAT NO FOREIGN CORPORATION
COULD "MAINTAIN ANY ACTION IN THIS STATE" WITHOUT A CERTIFICATE THAT IT
HAD COMPLIED WITH CERTAIN STATE REQUIREMENTS TO DO BUSINESS IN THE
STATE, COULD NEVERTHELESS BE SUED UPON IN THE FEDERAL COURT.  IT WAS
SAID, P. 500: 

"THE STATE COULD NOT PRESCRIBE THE QUALIFICATIONS OF SUITORS IN THE
COURTS OF THE UNITED STATES, AND COULD NOT DEPRIVE OF THEIR PRIVILEGES
THOSE WHO WERE ENTITLED UNDER THE CONSTITUTION AND LAWS OF THE UNITED
STATES TO RESORT TO THE FEDERAL COURTS FOR THE ENFORCEMENT OF A VALID
CONTRACT.... THE STATE IN THE STATUTE BEFORE US MADE NO SUCH ATTEMPT. 
THE ONLY PENALTY IT IMPOSED, TO QUOTE AGAIN FROM THE MAHAR CASE, WAS A
DISABILITY TO SUE 'IN THE COURTS OF NEW YORK.'" 

THESE CASES MAKE CLEAR THAT IN DIVERSITY LITIGATION THE FEDERAL
COURTS ARE NOT SIMPLY COURTS OF THE STATE.  THEY ARE SO FAR AS THE
ENFORCEMENT OF THE SUBSTANTIVE LAWS OF THE STATE ARE CONCERNED, BUT NOT
WHEN PROCEDURE OR POWER TO ACT IS INVOLVED.  THE LUPTON CASE SHOWS TOO,
THAT, WHEN A STATE DENIES POWER TO ITS COURTS TO ADJUDICATE A CAUSE,
THAT DENIAL DOES NOT AFFECT THE POWER OF THE FEDERAL COURTS TO DECIDE
THE CASE.  AS I AM OF THE OPINION THAT THE STATE COURT MERELY DENIED
ITS POWER TO ADJUDGE BETWEEN THESE PARTIES AND DID NOT DECIDE THE
MERITS OF BULLINGTON'S CAUSE OF ACTION, THE STATE COURT JUDGMENT CANNOT
BE RES JUDICATA IN THE FEDERAL COURT. 

IF IT IS TRUE THAT IN PASSING UPON THE MEANING OF A STATE STATUTE, A
FEDERAL COURT IS NOT REQUIRED TO FOLLOW THE STATE COURT'S
CHARACTERIZATION OF ITS STATUTE, AS REMEDIAL OR SUBSTANTIVE, THIS
COURT'S PRESENT DETERMINATION THAT THE STATUTE IS SUBSTANTIVE FOR OUR
PURPOSES CANNOT CHANGE THE EFFECT IN THIS LITIGATION OF THE STATE'S
DECISION TO THE CONTRARY.  WHEN THE STATE COURT HELD THAT FOR ITS
PURPOSES THE STATUTE WAS REMEDIAL, IT WAS REMEDIAL IN THAT COURT.  IF
REMEDIAL, THE STATE JUDGMENT WAS NOT UPON THE MERITS AND COULD NOT BE
RES JUDICATA IN ANY COURT AS TO THE RIGHT TO RECOVER ON THE CAUSE OF
ACTION. 

IF THE PLEA OF RES JUDICATA IS NOT GOOD AND THIS COURT SHOULD DECIDE
THAT THE STATE STATUTE IS SUBSTANTIVE LAW, I.E., A DECLARATION OF THE
POLICY OF NORTH CAROLINA AGAINST CLAIMS ON DEFICIENCIES AFTER SALES OF
INCUMBERED PROPERTY, IT WOULD BE NECESSARY TO DETERMINE THE
CONSTITUTIONALITY OF THE NORTH CAROLINA STATUTE THAT DECLARES
UNCOLLECTIBLE IN NORTH CAROLINA A CLAIM ON A CONTRACT THAT WAS GOOD IN
VIRGINIA.  IN VIEW OF THIS COURT'S PRESENT DECISION, I EXPRESS NO
OPINION UPON THIS ISSUE. 

FN1  220 N.C. AT 20-21, 16 S.E.2D AT 412: "THE STATUTE OPERATES UPON
THE ADJECTIVE LAW OF THE STATE, WHICH PERTAINS TO THE PRACTICE AND
PROCEDURE, OR LEGAL MACHINERY BY WHICH THE SUBSTANTIVE LAW IS MADE
EFFECTIVE, AND NOT UPON THE SUBSTANTIVE LAW ITSELF.  IT IS A LIMITATION
OF THE JURISDICTION OF THE COURTS OF THIS STATE. 

"THE LEGISLATURE, WITHIN CONSTITUTIONAL LIMITATIONS, CAN FIX AND
CIRCUMSCRIBE THE JURISDICTION OF THE COURTS OF THIS STATE.  THE
LEGISLATURE HAS EXERCISED ITS PREROGATIVE TO SO LIMIT THE JURISDICTION
OF THE COURTS OF THIS STATE THAT HOLDERS OF NOTES GIVEN FOR PURCHASE
PRICE OF REAL ESTATE ARE NOT ENTITLED TO A DEFICIENCY JUDGMENT THEREON
IN SUCH COURTS.  WE CANNOT HOLD THAT THIS ACTION UPON PART OF THE
LEGISLATIVE BRANCH OF OUR GOVERNMENT IMPINGED THE FULL FAITH AND CREDIT
CLAUSE OF THE CONSTITUTION OF THE UNITED STATES OR THE GENERAL DOCTRINE
THAT THE VALIDITY OF A CONTRACT IS DETERMINED BY THE LAW OF THE PLACE
WHERE MADE, THE LEX LOCI CONTRACTUS AS DISTINGUISHED FROM THE LEX
FORI.  BOTH THE CONSTITUTIONAL PROVISION URGED AND THE GENERAL DOCTRINE
INVOKED BY THE APPELLEE ARE SUBSTANTIVE LAW AND THE STATUTE INVOLVED,
AS AFORESAID, RELATES SOLELY TO THE ADJECTIVE LAW.  NO DENIAL OF THE
FULL FORCE AND CREDIT OF THE VIRGINIA CONTRACT IS MADE, AND NO
INTERPRETATION OR CONSTRUCTION OF THE CONTRACT INVOLVED IS ATTEMPTED. 
THE COURT, BEING DEPRIVED OF ITS JURISDICTION, HAS NO POWER TO RENDER A
JUDGMENT FOR THE PLAINTIFF IN THE CAUSE OF ACTION ALLEGED. 
'JURISDICTION IS POWER TO DECLARE THE LAW, AND WHEN IT CEASES TO EXIST,
THE ONLY FUNCTION REMAINING TO THE COURT IS THAT OF ANNOUNCING THE FACT
AND DISMISSING THE CAUSE.  AND THIS IS NOT LESS CLEAR UPON AUTHORITY
THAN UPON PRINCIPLE.'" 

MR. JUSTICE JACKSON AND MR. JUSTICE RUTLEDGE JOIN IN THIS OPINION. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

THIS IS A HARD CASE MAKING, I THINK, PROVERBIALLY BAD LAW.  ON THE
SURFACE WHAT SEEMS TO BE DECIDED IS SIMPLY A QUESTION OF RES JUDICATA. 
ACTUALLY THE DECISION RESTS ON AN "AND/OR" HODGEPODGE OF RES JUDICATA
AND ERIE DOCTRINES.  FN1  IN MY JUDGMENT THE ADMIXTURE NOT ONLY IS
UNNECESSARY BUT DISTORTS AND MISAPPLIES BOTH DOCTRINES.  IF RES
JUDICATA PROPERLY APPLIES AND IS ADEQUATE TO DISPOSE OF THE CAUSE,
THERE IS NO OCCASION FOR THE SIDEWISE INTRODUCTION OF ERIE IDEAS. 
LIKEWISE, IF ERIE APPROPRIATELY GOVERNS THE CASE, THE COURT'S ELABORATE
AND ALTOGETHER NOVEL DISCUSSION OF RES JUDICATA IS SUPERFLUOUS. 

THE COURT HAS NOT DECIDED THIS CASE ON ANY BASIS OF FULL FAITH AND
CREDIT.  FN2  ACCORDINGLY RES JUDICATA AS IT IS APPLIED HAS NEITHER
CONSTITUTIONAL NOR STATUTORY STATUS.  FOR PRESENT PURPOSES IT IS
THEREFORE PURELY A RULE OF JUDICIAL ADMINISTRATION TO BE APPLIED, LIKE
ALL SUCH RULES, AS CONSIDERATIONS OF JUSTICE AND RIGHT APPLICATION OF
THE POLICY REQUIRE, NOT OMITTING DUE REGARD FOR ITS APPROPRIATE
LIMITS. 

RES JUDICATA IS A GENERALLY SOUND BUT BY NO MEANS UNLIMITED POLICY OF
JUDICIAL ACTION.  THE DOCTRINE IS GROUNDED IN THE NEED FOR PUTTING AN
END TO LITIGATION.  FN3  IT DOES THIS BY PRECLUDING THE PARTIES FROM
SHOWING WHAT IS OR MAY BE THE TRUTH.  FN4  THE SOUND CORE OF THE POLICY
IS THAT ORDINARILY ONE SUIT WHICH DETERMINES OR GIVES A FULL AND FAIR
CHANCE FOR DETERMINING CAUSES OF ACTION AND ISSUES  FN5  BETWEEN
LITIGANTS SHOULD BE ENOUGH AND WHEN THIS MUCH HAS BEEN GIVEN FURTHER
OPPORTUNITY SHOULD BE DENIED. 

STATED SO SIMPLY, HOWEVER, THE DOCTRINE WOULD BE AS MUCH TRAP FOR THE
UNWARY AS BOON FOR THE WISE OR LUCKY LITIGANT.  EXCEPTIONS AND
QUALIFICATIONS ARE SO NUMEROUS AS TO MAKE THE FIELD NOT ONLY TECHNICAL
BUT TREACHEROUS, THIS CASE BEING A NICE ILLUSTRATION.  QUALIFICATION
MAY ITSELF LOSE SIGHT OF BASIC POLICY AND BECOME SHEER TECHNICALITY
N6.  BUT GENERAL RULES ARE NOT QUALIFIED SO EXTENSIVELY AS THIS ONE HAS
BEEN WITHOUT REASON.  THERE IS GOOD REASON FOR MUCH OF WHAT HAS BEEN
DONE IN THIS RESPECT WITH RES JUDICATA. 

THE EFFECT OF THE RULE QUALIFIES ITS SCOPE.  IT IS NOT EVERY CASE IN
WHICH A LITIGANT HAS HAD "ONE BITE AT THE CHERRY" THAT THE LAW FORBIDS
ANOTHER.  IN OTHER WORDS, IT IS NOT EVERY SUCH CASE IN WHICH THE POLICY
OF STOPPING LITIGATION OUTWEIGHS THAT OF SHOWING THE TRUTH.  THIS IS SO
NOT ONLY WHERE THE FIRST SUIT ACTUALLY GIVES NO REAL CHANCE TO SECURE A
SUBSTANTIAL DETERMINATION, FN7  BUT ALSO THOUGH LESS GENERALLY OF
OTHERS IN WHICH THE LITIGANT HAS SUCH A CHANCE AND FOREGOES OR MISSES
IT.  FN8  IT IS SO TOO WHETHER THE CLAIMED ESTOPPEL BY PRIOR SUIT IS
"DIRECT" OR "INDIRECT," THAT IS, ON THE SAME OR A DIFFERENT CAUSE OF
ACTION.  FN9 

UPON THE LAW AS WELL AS THE POLICY, THE QUESTION HAS BEEN ONE OF
BALANCING CONSIDERATIONS OF JUSTICE AND CONVENIENCE BETWEEN STOPPING
LITIGATION AND STOPPING THE SHOWING OF THE TRUTH.  FN10 THAT BALANCE
HAS NEVER BEEN SO ONE-SIDED IN FAVOR OF THE FORMER THAT THE MATTER IS
ENDED SIMPLY BY SHOWING THAT A PARTY HAS HAD SOME CHANCE, HOWEVER
SLIGHT, IN A PREVIOUS LITIGATION TO SECURE A FAVORABLE DECISION. 

IF THIS WERE THE LAW EVERY CASE WHERE A PARTY TAKES A NONSUIT OR A
DISMISSAL EXPRESSLY FOR THE PURPOSE OF STARTING OVER AGAIN WOULD BE A
FINAL AND CONCLUSIVE DETERMINATION AGAINST HIM.  I KNOW OF NO
JURISDICTION WHERE THE LAW HAS BEEN SO HARSH.  NOR DO I THINK IT SHOULD
BE IN THIS ONE. 

THERE ARE TOO MANY GOOD REASONS WHY PERSONS STARTING OUT IN
LITIGATION SHOULD NOT BE BARRED OF THEIR RIGHTS BY THE FACT ALONE THAT
THEY WITHDRAW IN ORDER TO START AGAIN, EVEN THOUGH BY GOING ON TO THE
END THEY MIGHT PULL THROUGH SUCCESSFULLY AGAINST GREAT ODDS.  CRUCIAL
WITNESSES MAY DISAPPEAR OR DIE AND TIME BE REQUIRED FOR FINDING THEM OR
OTHERS.  SURPRISE IN THE COURSE OF TRIAL MAY OCCUR JUSTIFYING
WITHDRAWAL WITHOUT FATAL LOSS OF RIGHTS.  EVEN AS IN THIS CASE,
JURISDICTIONAL AND OTHER UNCERTAINTIES MAY ARISE PUTTING IN JEOPARDY OR
MAKING COMPARATIVELY OR COMPLETELY FUTILE FURTHER PURSUIT OF THE
PENDING LITIGATION WHEN ANOTHER SUIT IN THE SAME OR A DIFFERENT COURT
MIGHT PROVIDE A MORE CERTAIN AND LESS EXPENSIVE MODE OF DISPOSING OF
THE CONTROVERSY FOR ALL THE PARTIES. 

THESE AND OTHER REASONS HAVE QUALIFIED FLAT APPLICATION OF RES
JUDICATA TOO LONG AND TOO UNIVERSALLY FOR THEIR QUALIFYING EFFECTS TO
BE THROWN OVERBOARD NOW SIMPLY BECAUSE A WITHDRAWING LITIGANT MIGHT
CONCEIVABLY HAVE COME OUT VICTORIOUS HAD HE GONE ON TO THE VERY
FARTHEST END.  FN11 SUCH A CRITERION WOULD TURN RES JUDICATA INTO A
RIGID RULE REQUIRING EXHAUSTION OF JUDICIAL REMEDIES, A NOTION
HERETOFORE WHOLLY ALIEN TO THE DOCTRINE.  FN12 

THIS COURSE, MOREOVER, SEEMS TO BE JUSTIFIED ON THE BASIS THAT THE
GROUNDS OF AN ADJUDICATION HAVE NOTHING TO DO WITH THE ADJUDICATION OR
ITS EFFECTS, FOR PURPOSES OF APPLYING RES JUDICATA.  THAT IS TRUE,
APPARENTLY, FOR APPLYING RES JUDICATA TO BULLINGTON'S FAILURE TO TAKE
HIS APPEAL HERE IN THE NORTH CAROLINA STATE COURT SUIT, SO AS TO CUT
OFF HIS RIGHT EVER TO SECURE A DECISION ON THE "'MERITS' IN THE SENSE
OF THE ULTIMATE SUBSTANTIVE ISSUES OF A LITIGATION."  BUT IT IS NOT
TRUE, APPARENTLY, FOR APPLICATION OF THE DOCTRINE TO DIFFERENT
JURISDICTIONAL RULINGS.  FOR "AN ADJUDICATION DECLINING TO REACH SUCH
ULTIMATE SUBSTANTIVE ISSUES MAY BAR A SECOND ATTEMPT TO REACH THEM IN
ANOTHER COURT OF THE STATE.  SUCH A SITUATION IS PRESENTED WHEN THE
FIRST DECISION IS BASED NOT ON THE GROUND THAT THE DISTRIBUTION OF
JUDICIAL POWER AMONG THE VARIOUS COURTS OF THE STATE REQUIRES THE SUIT
TO BE BROUGHT IN ANOTHER COURT IN THE STATE, BUT ON THE INACCESSIBILITY
OF ALL THE COURTS OF THE STATE TO SUCH LITIGATION.  AND THAT IS THE
ESSENCE OF THE PRESENT CASE." 

I CAN UNDERSTAND THE DISTINCTION DRAWN.  BUT I FIND DIFFICULTY IN
UNDERSTANDING WHY RES JUDICATA TURNS FOR APPLICATION IN THIS CASE TO
CUT OFF DETERMINATION OF SUBSTANTIVE ISSUES NOT AT ALL UPON THE GROUNDS
OF DECISION BUT ONLY ON THE FACT OF ADVERSE DECISION; BUT, FOR
APPLICATION TO SUCH ISSUES WHEN A JURISDICTIONAL QUESTION IS ALSO
INVOLVED, IT TURNS NOT SIMPLY UPON THE ADJUDICATION, BUT UPON THE
GROUNDS FOR THE JURISDICTIONAL DETERMINATION.  IF RES JUDICATA IS
GOVERNED SOLELY BY THE ADJUDICATION WITHOUT REFERENCE TO WHAT IS
ADJUDICATED, THAT IS, MERELY BY THE FACT OF ADVERSE DECISION, I SHOULD
THINK THAT RULE WOULD APPLY IN ALL CASES.  IF, ON THE CONTRARY, THE
GROUNDS OF ADJUDICATION ARE RELEVANT AND CONTROLLING FOR THE ONE CLASS
OF QUESTIONS, I SHOULD THINK THEY WOULD BE FOR THE OTHER. 

THE FALLACY LIES IN THE NOVEL AND UNPRECEDENTED IDEA THAT THE
GROUNDINGS OF A COURT'S DECISION HAVE NOTHING TO DO WITH WHETHER RES
JUDICATA APPLIES, EXCEPT WHEN THEY RELATE TO ONE KIND OF JURISDICTIONAL
DETERMINATION RATHER THAN ANOTHER.  APART FROM THE EXCEPTION, THE IDEA
IGNORES THE VAST BODY OF LAW WHICH HAS GROWN UP ON THE BASIS THAT THE
GROUNDING OF THE DECISION IS THE CRITERION FOR APPLYING THE DOCTRINE. 
FN13  AND MUCH OF THAT CASE LAW HAS BEEN THAT IF THE "'MERITS' IN THE
SENSE OF THE ULTIMATE SUBSTANTIVE ISSUES OF A LITIGATION" ARE NOT
REACHED, THEIR LATER DETERMINATION IS NOT FORECLOSED.  FN14  THIS IS
TRUE WHETHER OR NOT THE JURISDICTIONAL RULING IS ERRONEOUS OR VALID AND
WHETHER OR NOT IF ERRONEOUS IT MIGHT HAVE BEEN CORRECTED ON APPEAL. 
THAT LAW I THINK IS SOUND, AND I THINK IT IS JUST AS SOUND WHEN THE
JURISDICTIONAL DECISION GOES OFF ERRONEOUSLY ON A FEDERAL GROUND OR
ERRONEOUSLY IGNORING ONE AS WHEN IT RESTS ON A VALID BASIS.  IT IS
GROUNDED IN THE POLICY THAT UNLESS A LITIGANT GETS A REAL BITE AT THE
APPLE OF DISCORD HE SHOULD NOT BE FORECLOSED FROM ANOTHER ATTEMPT.  ITS
BASIS IS THAT IN SUCH A CASE IT IS BETTER AND MORE JUST NOT TO STOP
LITIGATION THAN IT IS TO STOP THE SHOWING OF THE TRUTH AND THEREBY
BRING ABOUT A FORFEITURE OF VALUABLE SUBSTANTIVE RIGHTS WITHOUT GIVING
AT LEAST ONE FULL AND FAIR, WHICH MEANS FAIRLY CERTAIN, OPPORTUNITY FOR
SECURING DECISION UPON THEM. 

BULLINGTON HAS NOT HAD SUCH AN OPPORTUNITY.  HE HAS NEVER RECEIVED,
AND NOW NEVER CAN RECEIVE A DECISION ON THE SUBSTANTIVE MERITS OF HIS
CLAIM, UNLESS POSSIBLY HE CAN CATCH AND SERVE ANGEL IN ANOTHER STATE
AND AFTER PROLONGED FURTHER LITIGATION SUCCEED IN INDUCING THIS COURT
TO HOLD THE NORTH CAROLINA BAR AND RES JUDICATA NOT OPERATIVE THERE. 
SEE RILEY V. NEW YORK TRUST CO., 315 U.S. 343, 349:  "BY THE
CONSTITUTIONAL PROVISION FOR FULL FAITH AND CREDIT, THE LOCAL DOCTRINES
OF RES JUDICATA, SPEAKING GENERALLY, BECOME A PART OF NATIONAL
JURISPRUDENCE, AND THEREFORE FEDERAL QUESTIONS COGNIZABLE HERE." 

CONCEIVABLY BULLINGTON BY COMING HERE IN THE NORTH CAROLINA SUIT
MIGHT HAVE SECURED A DECISION THAT THE NORTH CAROLINA STATUTE AND
DECISION WERE INVALID CONSTITUTIONALLY IN EXCLUDING HIM FROM ALL THE
STATE'S COURTS AND THAT THE STATE MUST AFFORD HIM A REMEDY ON PROOF OF
HIS SUBSTANTIVE CLAIM.  BUT THE VERY MULTIPLICITY OF THE CONSTITUTIONAL
QUESTIONS ENUMERATED IN THE COURT'S OPINION WHICH WERE OR MIGHT HAVE
BEEN PERTINENT MADE THAT CHANCE SLIM INDEED.  WHAT IS MORE IMPORTANT IS
THAT IF THE JUDGMENT HAD BEEN THUS REVERSED AND REMANDED, IT WOULD HAVE
BEEN WIPED OUT AND HE THEN WOULD HAVE BEEN FREE TO DISMISS THE SUIT AND
START OVER AGAIN IN THE FEDERAL COURTS SITTING IN THE STATE OR IN THE
STATE COURTS.  BUCHER V. CHESHIRE R.R. CO., 125 U.S. 555, 578-579. 
FN15 

ON THE OTHER HAND, IF THE CASE HAD GONE AGAINST HIM HERE, THEN HIS
RIGHT TO START OVER IN THE FEDERAL COURT IN NORTH CAROLINA WOULD DEPEND
UPON WHETHER ONE OF TWO GROUNDS WERE ACCEPTED FOR THIS COURT'S
DECISION, NAMELY, ON THE ONE HAND, THAT NORTH CAROLINA HAD POWER TO BAR
HIS SUBSTANTIVE CLAIM AND HAD DONE SO IN EFFECT THOUGH NOT IN WORDS,
THUS CLOSING THE DOORS OF THE FEDERAL COURT TO IT UNDER THE ERIE RULE;
ON THE OTHER, THAT THE STATE HAD POWER TO CLOSE ITS COURTS AGAINST HIS
CLAIM WITHOUT ADJUDICATING ITS SUBSTANTIVE VALIDITY, THUS LEAVING HIM
FREE TO GO TO THE FEDERAL COURT UNDER THE ERIE RULE.  EITHER RESULT WAS
A CONCEIVABLE ONE, DEPENDING ON WHETHER THE COURT SHOULD CONCLUDE THAT
A "RIGHT WITHOUT A REMEDY" REMAINS A RIGHT, FOR THIS PURPOSE, OR
BECOMES NONE AT ALL.  BUT THE ONLY CHANCE FOR BULLINGTON'S ULTIMATE
SUCCESS, IN THE EVENT OF ADVERSE DECISION HERE, WOULD HAVE BEEN FOR THE
DECISION TO HAVE TURNED OUT ON THE LATTER GROUND. 

THAT CHANCE WAS HARDLY WORTH THE GAMBLE.  FOR THIS COURT HAS DECLARED
IN GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 108-109, THAT A RIGHT
WITHOUT A REMEDY IS NO RIGHT AT ALL FOR PURPOSES OF ENFORCEMENT BY A
DIVERSITY SUIT IN A FEDERAL COURT SITTING IN THE STATE.  FN16  AND THE
NATURE OF THE NORTH CAROLINA STATUTE AS CONSTRUED BY THE STATE COURT
REACHES EXACTLY THE RESULT WHICH THE YORK CASE SAYS PRECLUDES RESORT TO
THE FEDERAL COURT ON THE SAME CAUSE IN A DIVERSITY SUIT.  FN17 INDEED
THIS SEEMS TO BE AN ALTERNATIVE BASIS FOR THE PRESENT DECISION.  FN18
BULLINGTON'S CHANCE TO GET TO THE FEDERAL COURT ON SUCH A BASIS WAS
THEREFORE PRACTICALLY NIL. 

SHOULD HE NOW BE BARRED BECAUSE HE DID NOT TAKE THE EXTREMELY REMOTE
CHANCE OF SECURING A FAVORABLE DECISION, REVERSING THE STATE COURT'S
JUDGMENT AND FORCING THE STATE TO HEAR HIS CASE ON THE MERITS?  NOT, I
THINK, UNLESS WE CAN SAY HE THEN WOULD HAVE BEEN FORCED, IF SUCCESSFUL,
TO CONTINUE THE LITIGATION IN THE STATE COURTS AND COULD NOT WITHDRAW
TO START OVER IN THE NORTH CAROLINA FEDERAL COURT.  THIS WE COULD NOT
SAY UNLESS WE WERE TO OVERRULE THE BUCHER CASE, WHICH BULLINGTON HAD A
RIGHT TO ASSUME WE WOULD NOT DO.  WHY HE SHOULD BE BARRED FROM DOING
NOW, BECAUSE HE DID NOT TAKE HIS ALMOST HOPELESS APPEAL, WHAT HE WOULD
HAVE BEEN AT LIBERTY TO DO IF HE HAD TAKEN IT SUCCESSFULLY, I AM NOT
ABLE TO UNDERSTAND.  NO SOUND POLICY OF ENDING LITIGATION, CONSERVING
JUDICIAL TIME OR LITIGANTS' RIGHTS OR IN ANY OTHER RESPECT CAN POSSIBLY
BE SERVED BY SUCH A RULING.  FN19  MOREOVER, THE VERY DIFFICULTIES IN
HIS WAY FOR SECURING A SUCCESSFUL DETERMINATION HERE, WHICH WOULD GIVE
HIM SOME CERTAIN REMEDY EITHER IN THE STATE OR IN THE FEDERAL COURTS,
WERE SUFFICIENT REASON, IN MY OPINION, TO JUSTIFY HIS FOREGOING THAT
DUBIOUS PROCEDURE AND STARTING OVER AGAIN IN THE FEDERAL COURT. 

THE REAL TROUBLE HERE IS NOT WITH THE LAW OF RES JUDICATA, FOR THAT
LAW HAS NO VALID APPLICATION TO THESE FACTS.  IT IS THAT THE DOCTRINE
IS USED AS AN ESCAPE FROM FACING SQUARELY THE REAL QUESTION PRESENTED. 
THIS IS WHETHER NORTH CAROLINA'S DECISION MADE THE ERIE DOCTRINE
APPLICABLE.  THE COURT'S OPINION DOES STATE EXPRESSLY THAT THE EFFECT
OF THE NORTH CAROLINA DECISION WAS TO CREATE A POLICY OF THE STATE
AGAINST THE VALIDITY OF ALL CLAIMS FOR DEFICIENCY JUDGMENTS, AND COMES
ALMOST BUT NOT QUITE TO SAYING THIS REQUIRES THE CASE TO GO OFF ON
APPLICATION OF THE YORK RULE. 

THAT ISSUE IS INESCAPABLE HERE.  THE ERIE RULE DID NOT PURPORT TO
CHANGE THE LAW OF FEDERAL JURISDICTION IN DIVERSITY CASES, TAKING IT
OUT OF THE HANDS OF CONGRESS AND THE FEDERAL COURTS AND PUTTING IT
WITHIN THE STATES' POWER TO DETERMINE.  IT PURPORTED ONLY TO PRESCRIBE
THE RULE FEDERAL COURTS SHOULD FOLLOW IN APPLYING THE SUBSTANTIVE LAW. 
IF THE NORTH CAROLINA DECISION WAS EXCLUSIVELY A JURISDICTIONAL ONE, IT
HAD NO EFFECT ON THE POWER OF THE FEDERAL COURTS IN THAT STATE TO HEAR
CONTROVERSIES EXCLUDED BY IT FROM THE STATE COURTS, AND THE DECISION
NEITHER REACHED THE MERITS OF THE CONTROVERSY "IN THE SENSE OF THE
ULTIMATE SUBSTANTIVE ISSUES OF A LITIGATION" NOR BARRED BULLINGTON FROM
GOING TO THE FEDERAL COURT.  SEE LUPTON'S SONS CO. V. AUTOMOBILE CLUB,
225 U.S. 489.  IF ON THE OTHER HAND THE DECISION WAS IN EFFECT,
ALTHOUGH NOT IN WORDS, A DETERMINATION OF THE MERITS IN THAT SENSE, IT
BOTH ADJUDICATED BULLINGTON'S SUBSTANTIVE RIGHTS AND BARRED HIM FROM
MAINTAINING THE LATER SUIT SUCCESSFULLY IN THE FEDERAL COURT.  THAT
QUESTION IS HERE AND UNTIL IT IS RESOLVED HE IS DEPRIVED OF ANY DAY IN
COURT EXCEPT TO GO FROM ONE TO ANOTHER WITHOUT SECURING DECISION EITHER
ON THE MERITS SUBSTANTIALLY OR "ON THE MERITS" JURISDICTIONALLY. 

FROM THE COURT'S OPINION I CANNOT SAY WHETHER THE QUESTION HAS BEEN
RESOLVED.  ITS DISCUSSION OF NORTH CAROLINA'S "POLICY" AND ITS
OVERRULING OF THE LUPTON'S SONS CASE, SUPRA, WOULD SEEM TO INDICATE
THAT IT IS APPLYING YORK, THOUGH WITHOUT SAYING SO FRANKLY.  BUT, IF
SO, WHY SPEAK ALSO OF RES JUDICATA?  THE LAW SHOULD NOT BE MADE INTO
SUCH A MERRY-GO-ROUND.  BULLINGTON IS ENTITLED TO ONE FULL DAY IN COURT
ON THE SUBSTANCE OF HIS CLAIM.  THIS HE HAS NOT HAD. 

I HARDLY NEED ADD THAT I AGREE WITH THE VIEWS EXPRESSED BY MR.
JUSTICE REED. 

FN1  ERIE R.R. CO. V. TOMPKINS, 304 U.S. 64. 

FN2  THE COURT DOES NOT HOLD THAT THE FULL FAITH AND CREDIT CLAUSE,
CONST., ART. IV, SEC. 1, BINDS THE FEDERAL COURTS TO GIVE THE NORTH
CAROLINA JUDGMENT THE EFFECT OF PRECLUDING A FURTHER SUIT IN THE
FEDERAL COURTS ON THE SUBSTANTIVE CAUSE OF ACTION.  TWO DIFFICULTIES
WOULD ARISE.  (1) IF, AS THE COURT ASSERTS, THE FEDERAL COURT IN
DIVERSITY CASES WERE ONLY "ANOTHER NORTH CAROLINA COURT," THE FULL
FAITH AND CREDIT CLAUSE WOULD HAVE NO APPLICATION; BUT, THAT IT MAY,
SEE COOPER V. NEWELL, 173 U.S. 555, 567:  "...  THE COURTS OF THE
UNITED STATES ARE TRIBUNALS OF A DIFFERENT SOVEREIGNTY, AND EXERCISE A
DISTINCT AND INDEPENDENT JURISDICTION FROM THAT EXERCISED BY THE STATE
COURTS, AND THIS IS TRUE IN RESPECT OF THE COURTS OF THE SEVERAL STATES
AS BETWEEN EACH OTHER.  AND THE COURTS OF THE UNITED STATES ARE BOUND
TO GIVE TO THE JUDGMENTS OF THE STATE COURTS THE SAME FAITH AND CREDIT
THAT THE COURTS OF ONE STATE ARE BOUND TO GIVE TO THE JUDGMENTS OF THE
COURTS OF HER SISTER STATES."  SEE ALSO AMERICAN SURETY CO. V. BALDWIN,
287 U.S. 156, WHERE MR. JUSTICE BRANDEIS SPOKE OF THE FULL FAITH AND
CREDIT CLAUSE IN CONNECTION WITH THE OBLIGATION OF A FEDERAL COURT
SITTING IN IDAHO TO FOLLOW, AS RES JUDICATA, A PREVIOUS IDAHO
DECISION.  (2) THE DECISION WOULD CONTRADICT, NOT CONFIRM, AS FULL
FAITH AND CREDIT REQUIRE, THE BASIS FOR THE NORTH CAROLINA COURT'S
JUDGMENT, NAMELY, THAT THE STATUTE DOES NOT OUTLAW SUBSTANTIVE CLAIMS
BUT ONLY DEPRIVES THE STATE COURTS OF POWER TO ENTERTAIN THEM. 

FN3  SEE MOSCHZISKER, RES JUDICATA (1929) 38 YALE L.J. 299, 300.  IN
THIS RESPECT, OF COURSE, RES JUDICATA RESEMBLES BOTH STATUTES OF
LIMITATIONS AND THE DOCTRINE OF LACHES IN EQUITY, AS WELL AS FULL FAITH
AND CREDIT WHEN APPLICABLE TO JUDGMENTS. 

FN4  SCOTT, COLLATERAL ESTOPPEL BY JUDGMENT (1942) 56 HARV. L. REV.
1.  SO DO STATUTES OF LIMITATIONS, LACHES AND FULL FAITH AND CREDIT RE
JUDGMENTS, WHEN APPLICABLE. 

FN5  CF. NOTE 9 INFRA AND TEXT. 

FN6  A SIGN GENERALLY THAT SOMETHING IS RADICALLY WRONG WITH THE RULE
OR WITH IT AND THE EXCEPTIONS TOGETHER.  CF. GEORGETOWN COLLEGE V.
HUGHES, 76 U.S. APP. D.C. 123, 130 F.2D 810. 

FN7  SEE WALDEN V. BODLEY, 14 PET. 156, 161; HUGHES V. UNITED STATES,
4 WALL.  232, 237; RESTATEMENT, JUDGMENTS (1942) SEC. 49. 

FN8  "JUDGMENTS OF NONSUIT, OF NON PROSEQUITUR, OF NOLLE PROSEQUI, OF
DISCONTINUANCE AND OF DISMISSAL GENERALLY, ARE EXCEPTIONS TO THE
GENERAL RULE THAT WHEN THE PLEADINGS, THE COURT, AND THE PARTIES ARE
SUCH AS TO PERMIT OF A TRIAL ON THE MERITS, THE JUDGMENT WILL BE
CONSIDERED AS FINAL AND CONCLUSIVE OF ALL MATTERS WHICH COULD HAVE BEEN
SO TRIED."  2 FREEMAN, JUDGMENTS (5TH ED.)  1579-1580.  AND "GENERALLY
SPEAKING, JUDGMENTS MERELY OF DISMISSAL, WHETHER VOLUNTARY OR
INVOLUNTARY, IN ACTIONS AT LAW ARE NOT ON THE MERITS AND DO NOT OPERATE
AS A BAR OR ESTOPPEL IN SUBSEQUENT PROCEEDINGS INVOLVING THE SAME
MATTERS."  ID. AT 1582.  SEE HALDEMAN V. UNITED STATES, 91 U.S. 584;
JACOBS V. MARKS, 182 U.S. 583; MANHATTAN LIFE INS. CO. V. BROUGHTON,
109 U.S. 121; RESTATEMENT, JUDGMENTS (1942) SECS. 53, 54. 

FN9  SCOTT, OP. CIT. SUPRA NOTE 4, P. 2; RESTATEMENT, JUDGMENTS
(1942) 175-176.  USUALLY "DIRECT" ESTOPPEL IS SAID TO PRECLUDE
REDETERMINATION OF ISSUES ACTUALLY DETERMINED OR WHICH MIGHT HAVE BEEN
DETERMINED "ON THE MERITS."  IBID.  BUT "INDIRECT" ESTOPPEL PRECLUDES
RELITIGATING ONLY ISSUES ACTUALLY DECIDED.  CROMWELL V. COUNTY OF SAC,
94 U.S. 351, 352-353. 

FN10  THE PROCESS OF COURSE CRYSTALLIZES IN DEFINITE RULES FOR TYPES
OF CASES, BUT THE IMPORTANT FACT IS THAT THESE RULES DO NOT ALL COME
OUT THE SAME WAY FOR APPLICATION OF THE RULE OF PRECLUSION AND THAT IN
THE PROCESS OF CRYSTALLIZATION THE WEIGHING OF THE OPPOSING
CONSIDERATIONS FORMS THE RULE FOR OR AGAINST THAT POLICY. 

FN11  THE COURT CLEARLY IMPLIES THAT BULLINGTON WOULD NOT BE
FORECLOSED ON RES JUDICATA BY THE NORTH CAROLINA DECISION IF HIS ROUTE
TO THIS COURT FOR REVIEW HAD BEEN BY CERTIORARI RATHER THAN BY APPEAL. 
BUT THE RULING AS MADE, IN SO FAR AS IT RESTS ON THE FAILURE TO APPEAL,
IGNORES THE SETTLED LAW THAT FOR PURPOSES OF APPLYING RES JUDICATA
FAILURE TO TAKE APPEAL HAS NO BEARING ONCE THE JUDGMENT BECOMES FINAL. 
SEE NOTE 19.  IT ALSO DEFEATS THE POLICY OF RES JUDICATA; FOR A PARTY,
INSTEAD OF BEING ALLOWED TO ACCEPT THE JURISDICTIONAL RULING, IS FORCED
TO APPEAL TO THE HIGHEST COURT IN ORDER TO SAVE HIS RIGHTS NO MATTER
HOW MERITLESS THE APPEAL, THUS PROLONGING RATHER THAN SHORTENING
LITIGATION. 

FN12  SEE NOTE 19. 

FN13  SEE SCOTT, OP. CIT., SUPRA NOTE 4; RESTATEMENT, JUDGMENTS
(1942) SECS. 49, 50, 53, 54. 

FN14  SEE AUTHORITIES CITED IN NOTE 7 SUPRA. 

FN15  "IF  ...  A JUDGMENT HAS BEEN VACATED BY THE TRIAL COURT OR
REVERSED BY AN APPELLATE COURT, IT IS NO LONGER CONCLUSIVE BETWEEN THE
PARTIES, EITHER AS A MERGER OF THE ORIGINAL CAUSE OF ACTION OR AS A BAR
TO AN ACTION UPON THE ORIGINAL CAUSE OF ACTION  ..."  RESTATEMENT,
JUDGMENTS (1942) 163. 

"ORDINARILY, AFTER A JUDGMENT HAS BEEN REVERSED ON APPEAL AND THE
CAUSE REMANDED, THE CASE STANDS FOR TRIAL DE NOVO ON THE ISSUES
PROPERLY JOINED....  WITH RESPECT TO THE RIGHT OF PLAINTIFF TO TAKE A
VOLUNTARY NONSUIT, IT STANDS IN THE SAME RELATIVE POSITION WHICH IT
OCCUPIED BEFORE THE TRIAL IN THE FIRST INSTANCE."  SHELL PETROLEUM
CORP. V. SHORE, 80 F.2D 785, 786. 

THIS IS THE GENERAL RULE.  89 A.L.R. 109; 126 A.L.R. 305.  IT WOULD
SEEM TO APPLY IN NORTH CAROLINA.  NORTH CAROLINA FOLLOWS BOTH THE
DOCTRINE THAT THE TRIAL COURT, UPON REMAND BY AN APPELLATE COURT, IS TO
PROCEED AS IF THERE HAD BEEN NO PREVIOUS TRIAL AND THE DOCTRINE THAT
JUDGMENTS NOT ON THE MERITS DO NOT CONSTITUTE AN ESTOPPEL TO SUBSEQUENT
ACTIONS.  HICKORY V. RAILROAD, 138 N.C. 311, 318; GRIMES V. ANDREWS,
170 N.C. 515; CF. GEN. STAT. N.C. (1943) SEC. 1-25, AS INTERPRETED IN
GRIMES V. ANDREWS, 170 N.C. AT 522. 

FN16  THE YORK CASE HOWEVER DID NOT PURPORT TO APPLY OR EXTEND THE
RULE TO A CAUSE OF ACTION ARISING UNDER AND GOVERNED BY THE LAWS OF
ANOTHER STATE THAN THAT IN WHICH THE FEDERAL COURT WAS SITTING.  BUT
CF. KLAXON CO. V. STENTOR ELEC.  MFG.  CO., 313 U.S. 487.    FN17
EXCEPT FOR THE FACTOR NOTED IN NOTE 16. 

FN18  SEE TEXT INFRA. 

FN19  "THE APPLICATION OF THE PRINCIPLE OF RES JUDICATA HAS NOT IN
ANY WAY BEEN MADE TO DEPEND UPON WHETHER THE JUDGMENT IN QUESTION IS
SUBJECT TO REVIEW IN ANOTHER TRIBUNAL.  EXCEPT IN SO FAR AS IT MAY
AFFECT THE QUESTION OF ITS FINALITY, AS IN THE CASE OF ORDERS ON
MOTIONS, THE FACT THAT A JUDGMENT MAY OR MAY NOT BE APPEALABLE SHOULD
HAVE NO BEARING UPON ITS EFFECT AS RES JUDICATA."  2 FREEMAN, JUDGMENTS
(5TH ED.)  1339.    THUS, THERE IS NO DOCTRINE OF EXHAUSTION OF
JUDICIAL REMEDIES.  IF THE JUDGMENT OF A COURT GOES ON JURISDICTIONAL
GROUNDS, THE PARTY MAY ACCEPT IT AND, INSTEAD OF APPEALING, MAY
INSTITUTE ANOTHER ACTION WHERE HE WILL NOT BE MET BY THE JURISDICTIONAL
BAR.  CF. RESTATEMENT, JUDGMENTS (1942) 194-195; COOK, THE LOGICAL AND
LEGAL BASES OF THE CONFLICT OF LAWS (1942) 133-135. 

MR. JUSTICE JACKSON JOINS IN THIS OPINION. 
..END :
























EVERSON V. BOARD OF EDUCATION, 330 U.S. 1 


NO. 52.  ARGUED NOVEMBER 20, 1946.  - DECIDED FEBRUARY 10, 1947.  - 133
N.J.L. 350, 44 A.2D 333, AFFIRMED. 


PURSUANT TO A NEW JERSEY STATUTE AUTHORIZING DISTRICT BOARDS OF
EDUCATION TO MAKE RULES AND CONTRACTS FOR THE TRANSPORTATION OF
CHILDREN TO AND FROM SCHOOLS OTHER THAN PRIVATE SCHOOLS OPERATED FOR
PROFIT, A BOARD OF EDUCATION BY RESOLUTION AUTHORIZED THE REIMBURSEMENT
OF PARENTS FOR FARES PAID FOR THE TRANSPORTATION BY PUBLIC CARRIER OF
CHILDREN ATTENDING PUBLIC AND CATHOLIC SCHOOLS.  THE CATHOLIC SCHOOLS
OPERATED UNDER THE SUPERINTENDENCY OF A CATHOLIC PRIEST AND, IN
ADDITION TO SECULAR EDUCATION, GAVE RELIGIOUS INSTRUCTION IN THE
CATHOLIC FAITH.  A DISTRICT TAXPAYER CHALLENGED THE VALIDITY UNDER THE
FEDERAL CONSTITUTION OF THE STATUTE AND RESOLUTION, SO FAR AS THEY
AUTHORIZED REIMBURSEMENT TO PARENTS FOR THE TRANSPORTATION OF CHILDREN
ATTENDING SECTARIAN SCHOOLS.  NO QUESTION WAS RAISED AS TO WHETHER THE
EXCLUSION OF PRIVATE SCHOOLS OPERATED FOR PROFIT DENIED EQUAL
PROTECTION OF THE LAWS; NOR DID THE RECORD SHOW THAT THERE WERE ANY
CHILDREN IN THE DISTRICT WHO ATTENDED, OR WOULD HAVE ATTENDED BUT FOR
THE COST OF TRANSPORTATION, ANY BUT PUBLIC OR CATHOLIC SCHOOLS.  HELD: 

1.  THE EXPENDITURE OF TAX-RAISED FUNDS THUS AUTHORIZED WAS FOR A
PUBLIC PURPOSE, AND DID NOT VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  PP. 5-8. 

2.  THE STATUTE AND RESOLUTION DID NOT VIOLATE THE PROVISION OF THE
FIRST AMENDMENT (MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT) PROHIBITING ANY "LAW RESPECTING AN ESTABLISHMENT OF
RELIGION."  PP. 8-18. 

EVERSON V. BOARD OF EDUCATION OF THE TOWNSHIP OF EWING ET AL. 

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

IN A SUIT BY A TAXPAYER, THE NEW JERSEY SUPREME COURT HELD THAT THE
STATE LEGISLATURE WAS WITHOUT POWER UNDER THE STATE CONSTITUTION TO
AUTHORIZE REIMBURSEMENT TO PARENTS OF BUS FARES PAID FOR TRANSPORTING
THEIR CHILDREN TO SCHOOLS OTHER THAN PUBLIC SCHOOLS.  132 N.J.L. 98, 39
A.2D 75.  THE NEW JERSEY COURT OF ERRORS AND APPEALS REVERSED, HOLDING
THAT NEITHER THE STATUTE NOR A RESOLUTION PASSED PURSUANT TO IT
VIOLATED THE STATE CONSTITUTION OR THE PROVISIONS OF THE FEDERAL
CONSTITUTION IN ISSUE.  133 N.J.L. 350, 44 A.2D 333.  ON APPEAL OF THE
FEDERAL QUESTIONS TO THIS COURT, AFFIRMED, P. 18. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A NEW JERSEY STATUTE AUTHORIZES ITS LOCAL SCHOOL DISTRICTS TO MAKE
RULES AND CONTRACTS FOR THE TRANSPORTATION OF CHILDREN TO AND FROM
SCHOOLS.  FN1  THE APPELLEE, A TOWNSHIP BOARD OF EDUCATION, ACTING
PURSUANT TO THIS STATUTE, AUTHORIZED REIMBURSEMENT TO PARENTS OF MONEY
EXPENDED BY THEM FOR THE BUS TRANSPORTATION OF THEIR CHILDREN ON
REGULAR BUSSES OPERATED BY THE PUBLIC TRANSPORTATION SYSTEM.  PART OF
THIS MONEY WAS FOR THE PAYMENT OF TRANSPORTATION OF SOME CHILDREN IN
THE COMMUNITY TO CATHOLIC PAROCHIAL SCHOOLS.  THESE CHURCH SCHOOLS GIVE
THEIR STUDENTS, IN ADDITION TO SECULAR EDUCATION, REGULAR RELIGIOUS
INSTRUCTION CONFORMING TO THE RELIGIOUS TENETS AND MODES OF WORSHIP OF
THE CATHOLIC FAITH.  THE SUPERINTENDENT OF THESE SCHOOLS IS A CATHOLIC
PRIEST. 

THE APPELLANT, IN HIS CAPACITY AS A DISTRICT TAXPAYER, FILED SUIT IN
A STATE COURT CHALLENGING THE RIGHT OF THE BOARD TO REIMBURSE PARENTS
OF PAROCHIAL SCHOOL STUDENTS.  HE CONTENDED THAT THE STATUTE AND THE
RESOLUTION PASSED PURSUANT TO IT VIOLATED BOTH THE STATE AND THE
FEDERAL CONSTITUTIONS.  THAT COURT HELD THAT THE LEGISLATURE WAS
WITHOUT POWER TO AUTHORIZE SUCH PAYMENT UNDER THE STATE CONSTITUTION. 
132 N.J.L. 98, 39 A.2D 75.  THE NEW JERSEY COURT OF ERRORS AND APPEALS
REVERSED, HOLDING THAT NEITHER THE STATUTE NOR THE RESOLUTION PASSED
PURSUANT TO IT WAS IN CONFLICT WITH THE STATE CONSTITUTION OR THE
PROVISIONS OF THE FEDERAL CONSTITUTION IN ISSUE.  133 N.J.L. 350, 44
A.2D 333.  THE CASE IS HERE ON APPEAL UNDER 28 U.S.C. SEC. 344(A). 

SINCE THERE HAS BEEN NO ATTACK ON THE STATUTE ON THE GROUND THAT A
PART OF ITS LANGUAGE EXCLUDES CHILDREN ATTENDING PRIVATE SCHOOLS
OPERATED FOR PROFIT FROM ENJOYING STATE PAYMENT FOR THEIR
TRANSPORTATION, WE NEED NOT CONSIDER THIS EXCLUSIONARY LANGUAGE; IT HAS
NO RELEVANCY TO ANY CONSTITUTIONAL QUESTION HERE PRESENTED.  FN2
FURTHERMORE, IF THE EXCLUSION CLAUSE HAD BEEN PROPERLY CHALLENGED, WE
DO NOT KNOW WHETHER NEW JERSEY'S HIGHEST COURT WOULD CONSTRUE ITS
STATUTES AS PRECLUDING PAYMENT OF THE SCHOOL TRANSPORTATION OF ANY
GROUP OF PUPILS, EVEN THOSE OF A PRIVATE SCHOOL RUN FOR PROFIT.  FN3
CONSEQUENTLY, WE PUT TO ONE SIDE THE QUESTION AS TO THE VALIDITY OF THE
STATUTE AGAINST THE CLAIM THAT IT DOES NOT AUTHORIZE PAYMENT FOR THE
TRANSPORTATION GENERALLY OF SCHOOL CHILDREN IN NEW JERSEY. 

THE ONLY CONTENTION HERE IS THAT THE STATE STATUTE AND THE
RESOLUTION, INSOFAR AS THEY AUTHORIZED REIMBURSEMENT TO PARENTS OF
CHILDREN ATTENDING PAROCHIAL SCHOOLS, VIOLATE THE FEDERAL CONSTITUTION
IN THESE TWO RESPECTS, WHICH TO SOME EXTENT OVERLAP.  FIRST.  THEY
AUTHORIZE THE STATE TO TAKE BY TAXATION THE PRIVATE PROPERTY OF SOME
AND BESTOW IT UPON OTHERS, TO BE USED FOR THEIR OWN PRIVATE PURPOSES. 
THIS, IT IS ALLEGED, VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  SECOND.  THE STATUTE AND THE RESOLUTION FORCED INHABITANTS
TO PAY TAXES TO HELP SUPPORT AND MAINTAIN SCHOOLS WHICH ARE DEDICATED
TO, AND WHICH REGULARLY TEACH, THE CATHOLIC FAITH.  THIS IS ALLEGED TO
BE A USE OF STATE POWER TO SUPPORT CHURCH SCHOOLS CONTRARY TO THE
PROHIBITION OF THE FIRST AMENDMENT WHICH THE FOURTEENTH AMENDMENT MADE
APPLICABLE TO THE STATES. 

FIRST.  THE DUE PROCESS ARGUMENT THAT THE STATE LAW TAXES SOME PEOPLE
TO HELP OTHERS CARRY OUT THEIR PRIVATE PURPOSES IS FRAMED IN TWO
PHASES.  THE FIRST PHASE IS THAT A STATE CANNOT TAX A TO REIMBURSE B
FOR THE COST OF TRANSPORTING HIS CHILDREN TO CHURCH SCHOOLS.  THIS IS
SAID TO VIOLATE THE DUE PROCESS CLAUSE BECAUSE THE CHILDREN ARE SENT TO
THESE CHURCH SCHOOLS TO SATISFY THE PERSONAL DESIRES OF THEIR PARENTS,
RATHER THAN THE PUBLIC'S INTEREST IN THE GENERAL EDUCATION OF ALL
CHILDREN.  THIS ARGUMENT, IF VALID, WOULD APPLY EQUALLY TO PROHIBIT
STATE PAYMENT FOR THE TRANSPORTATION OF CHILDREN TO ANY NON-PUBLIC
SCHOOL, WHETHER OPERATED BY A CHURCH OR ANY OTHER NON-GOVERNMENT
INDIVIDUAL OR GROUP.  BUT, THE NEW JERSEY LEGISLATURE HAS DECIDED THAT
A PUBLIC PURPOSE WILL BE SERVED BY USING TAX-RAISED FUNDS TO PAY THE
BUS FARES OF ALL SCHOOL CHILDREN, INCLUDING THOSE WHO ATTEND PAROCHIAL
SCHOOLS.  THE NEW JERSEY COURT OF ERRORS AND APPEALS HAS REACHED THE
SAME CONCLUSION.  THE FACT THAT A STATE LAW, PASSED TO SATISFY A PUBLIC
NEED, COINCIDES WITH THE PERSONAL DESIRES OF THE INDIVIDUALS MOST
DIRECTLY AFFECTED IS CERTAINLY AN INADEQUATE REASON FOR US TO SAY THAT
A LEGISLATURE HAS ERRONEOUSLY APPRAISED THE PUBLIC NEED. 

IT IS TRUE THAT THIS COURT HAS, IN RARE INSTANCES, STRUCK DOWN STATE
STATUTES ON THE GROUND THAT THE PURPOSE FOR WHICH TAX-RAISED FUNDS WERE
TO BE EXPENDED WAS NOT A PUBLIC ONE.  LOAN ASSOCIATION V. TOPEKA, 20
WALL.  655; PARKERSBURG V. BROWN, 106 U.S. 487; THOMPSON V.
CONSOLIDATED GAS UTILITIES CORP., 300 U.S. 55.  BUT THE COURT HAS ALSO
POINTED OUT THAT THIS FAR-REACHING AUTHORITY MUST BE EXERCISED WITH THE
MOST EXTREME CAUTION.  GREEN V. FRAZIER, 253 U.S. 233, 240.  OTHERWISE,
A STATE'S POWER TO LEGISLATE FOR THE PUBLIC WELFARE MIGHT BE SERIOUSLY
CURTAILED, A POWER WHICH IS A PRIMARY REASON FOR THE EXISTENCE OF
STATES.  CHANGING LOCAL CONDITIONS CREATE NEW LOCAL PROBLEMS WHICH MAY
LEAD A STATE'S PEOPLE AND ITS LOCAL AUTHORITIES TO BELIEVE THAT LAWS
AUTHORIZING NEW TYPES OF PUBLIC SERVICES ARE NECESSARY TO PROMOTE THE
GENERAL WELL-BEING OF THE PEOPLE.  THE FOURTEENTH AMENDMENT DID NOT
STRIP THE STATES OF THEIR POWER TO MEET PROBLEMS PREVIOUSLY LEFT FOR
INDIVIDUAL SOLUTION.  DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 103-104;
BARBIER V. CONNOLLY, 113 U.S. 27, 31-32; FALLBROOK IRRIGATION DISTRICT
V. BRADLEY, 164 U.S. 112, 157-158. 

IT IS MUCH TOO LATE TO ARGUE THAT LEGISLATION INTENDED TO FACILITATE
THE OPPORTUNITY OF CHILDREN TO GET A SECULAR EDUCATION SERVES NO PUBLIC
PURPOSE.  COCHRAN V. LOUISIANA STATE BOARD OF EDUCATION, 281 U.S. 370;
HOLMES, J., IN INTERSTATE RY. V. MASSACHUSETTS, 207 U.S. 79, 87.  SEE
OPINION OF COOLEY, J., IN STUART V. SCHOOL DISTRICT NO. 1 OF KALAMAZOO,
30 MICH. 69(1874).  THE SAME THING IS NO LESS TRUE OF LEGISLATION TO
REIMBURSE NEEDY PARENTS, OR ALL PARENTS, FOR PAYMENT OF THE FARES OF
THEIR CHILDREN SO THAT THEY CAN RIDE IN PUBLIC BUSSES TO AND FROM
SCHOOLS RATHER THAN RUN THE RISK OF TRAFFIC AND OTHER HAZARDS INCIDENT
TO WALKING OR "HITCHHIKING."  SEE BARBIER V. CONNOLLY, SUPRA, AT 31. 
SEE ALSO CASES COLLECTED 63 A.L.R. 413; 118 A.L.R. 806.  NOR DOES IT
FOLLOW THAT A LAW HAS A PRIVATE RATHER THAN A PUBLIC PURPOSE BECAUSE IT
PROVIDES THAT TAX-RAISED FUNDS WILL BE PAID TO REIMBURSE INDIVIDUALS ON
ACCOUNT OF MONEY SPENT BY THEM IN A WAY WHICH FURTHERS A PUBLIC
PROGRAM.  SEE CARMICHAEL V. SOUTHERN COAL & COKE CO., 301 U.S. 495,
518.  SUBSIDIES AND LOANS TO INDIVIDUALS SUCH AS FARMERS AND HOME
OWNERS, AND TO PRIVATELY OWNED TRANSPORTATION SYSTEMS, AS WELL AS MANY
OTHER KINDS OF BUSINESSES, HAVE BEEN COMMONPLACE PRACTICES IN OUR STATE
AND NATIONAL HISTORY. 

INSOFAR AS THE SECOND PHASE OF THE DUE PROCESS ARGUMENT MAY DIFFER
FROM THE FIRST, IT IS BY SUGGESTING THAT TAXATION FOR TRANSPORTATION OF
CHILDREN TO CHURCH SCHOOLS CONSTITUTES SUPPORT OF A RELIGION BY THE
STATE.  BUT IF THE LAW IS INVALID FOR THIS REASON, IT IS BECAUSE IT
VIOLATES THE FIRST AMENDMENT'S PROHIBITION AGAINST THE ESTABLISHMENT OF
RELIGION BY LAW.  THIS IS THE EXACT QUESTION RAISED BY APPELLANT'S
SECOND CONTENTION, TO CONSIDERATION OF WHICH WE NOW TURN. 

SECOND.  THE NEW JERSEY STATUTE IS CHALLENGED AS A "LAW RESPECTING AN
ESTABLISHMENT OF RELIGION."  THE FIRST AMENDMENT, AS MADE APPLICABLE TO
THE STATES BY THE FOURTEENTH, MURDOCK V. PENNSYLVANIA, 319 U.S. 105,
COMMANDS THAT A STATE "SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF
RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF...."  THESE WORDS OF
THE FIRST AMENDMENT REFLECTED IN THE MINDS OF EARLY AMERICANS A VIVID
MENTAL PICTURE OF CONDITIONS AND PRACTICES WHICH THEY FERVENTLY WISHED
TO STAMP OUT IN ORDER TO PRESERVE LIBERTY FOR THEMSELVES AND FOR THEIR
POSTERITY.  DOUBTLESS THEIR GOAL HAS NOT BEEN ENTIRELY REACHED; BUT SO
FAR HAS THE NATION MOVED TOWARD IT THAT THE EXPRESSION "LAW RESPECTING
AN ESTABLISHMENT OF RELIGION," PROBABLY DOES NOT SO VIVIDLY REMIND
PRESENT-DAY AMERICANS OF THE EVILS, FEARS, AND POLITICAL PROBLEMS THAT
CAUSED THAT EXPRESSION TO BE WRITTEN INTO OUR BILL OF RIGHTS.  WHETHER
THIS NEW JERSEY LAW IS ONE RESPECTING AN "ESTABLISHMENT OF RELIGION"
REQUIRES AN UNDERSTANDING OF THE MEANING OF THAT LANGUAGE, PARTICULARLY
WITH RESPECT TO THE IMPOSITION OF TAXES.  ONCE AGAIN,  FN4  THEREFORE,
IT IS NOT INAPPROPRIATE BRIEFLY TO REVIEW THE BACKGROUND AND
ENVIRONMENT OF THE PERIOD IN WHICH THAT CONSTITUTIONAL LANGUAGE WAS
FASHIONED AND ADOPTED. 

A LARGE PROPORTION OF THE EARLY SETTLERS OF THIS COUNTRY CAME HERE
FROM EUROPE TO ESCAPE THE BONDAGE OF LAWS WHICH COMPELLED THEM TO
SUPPORT AND ATTEND GOVERNMENT-FAVORED CHURCHES.  THE CENTURIES
IMMEDIATELY BEFORE AND CONTEMPORANEOUS WITH THE COLONIZATION OF AMERICA
HAD BEEN FILLED WITH TURMOIL, CIVIL STRIFE, AND PERSECUTIONS, GENERATED
IN LARGE PART BY ESTABLISHED SECTS DETERMINED TO MAINTAIN THEIR
ABSOLUTE POLITICAL AND RELIGIOUS SUPREMACY.  WITH THE POWER OF
GOVERNMENT SUPPORTING THEM, AT VARIOUS TIMES AND PLACES, CATHOLICS HAD
PERSECUTED PROTESTANTS, PROTESTANTS HAD PERSECUTED CATHOLICS,
PROTESTANT SECTS HAD PERSECUTED OTHER PROTESTANT SECTS, CATHOLICS OF
ONE SHADE OF BELIEF HAD PERSECUTED CATHOLICS OF ANOTHER SHADE OF
BELIEF, AND ALL OF THESE HAD FROM TIME TO TIME PERSECUTED JEWS.  IN
EFFORTS TO FORCE LOYALTY TO WHATEVER RELIGIOUS GROUP HAPPENED TO BE ON
TOP AND IN LEAGUE WITH THE GOVERNMENT OF A PARTICULAR TIME AND PLACE,
MEN AND WOMEN HAD BEEN FINED, CAST IN JAIL, CRUELLY TORTURED, AND
KILLED.  AMONG THE OFFENSES FOR WHICH THESE PUNISHMENTS HAD BEEN
INFLICTED WERE SUCH THINGS AS SPEAKING DISRESPECTFULLY OF THE VIEWS OF
MINISTERS OF GOVERNMENT-ESTABLISHED CHURCHES, NON-ATTENDANCE AT THOSE
CHURCHES, EXPRESSIONS OF NON-BELIEF IN THEIR DOCTRINES, AND FAILURE TO
PAY TAXES AND TITHES TO SUPPORT THEM.  FN5 

THESE PRACTICES OF THE OLD WORLD WERE TRANSPLANTED TO AND BEGAN TO
THRIVE IN THE SOIL OF THE NEW AMERICA.  THE VERY CHARTERS GRANTED BY
THE ENGLISH CROWN TO THE INDIVIDUALS AND COMPANIES DESIGNATED TO MAKE
THE LAWS WHICH WOULD CONTROL THE DESTINIES OF THE COLONIALS AUTHORIZED
THESE INDIVIDUALS AND COMPANIES TO ERECT RELIGIOUS ESTABLISHMENTS WHICH
ALL, WHETHER BELIEVERS OR NON-BELIEVERS, WOULD BE REQUIRED TO SUPPORT
AND ATTEND.  FN6  AN EXERCISE OF THIS AUTHORITY WAS ACCOMPANIED BY A
REPETITION OF MANY OF THE OLD-WORLD PRACTICES AND PERSECUTIONS. 
CATHOLICS FOUND THEMSELVES HOUNDED AND PROSCRIBED BECAUSE OF THEIR
FAITH; QUAKERS WHO FOLLOWED THEIR CONSCIENCE WENT TO JAIL; BAPTISTS
WERE PECULIARLY OBNOXIOUS TO CERTAIN DOMINANT PROTESTANT SECTS; MEN AND
WOMEN OF VARIED FAITHS WHO HAPPENED TO BE IN A MINORITY IN A PARTICULAR
LOCALITY WERE PERSECUTED BECAUSE THEY STEADFASTLY PERSISTED IN
WORSHIPPING GOD ONLY AS THEIR OWN CONSCIENCES DICTATED.  FN7 AND ALL OF
THESE DISSENTERS WERE COMPELLED TO PAY TITHES AND TAXES  FN8  TO
SUPPORT GOVERNMENT-SPONSORED CHURCHES WHOSE MINISTERS PREACHED
INFLAMMATORY SERMONS DESIGNED TO STRENGTHEN AND CONSOLIDATE THE
ESTABLISHED FAITH BY GENERATING A BURNING HATRED AGAINST DISSENTERS. 

THESE PRACTICES BECAME SO COMMONPLACE AS TO SHOCK THE FREEDOM-LOVING
COLONIALS INTO A FEELING OF ABHORRENCE.  FN9  THE IMPOSITION OF TAXES
TO PAY MINISTERS' SALARIES AND TO BUILD AND MAINTAIN CHURCHES AND
CHURCH PROPERTY AROUSED THEIR INDIGNATION.  FN10  IT WAS THESE FEELINGS
WHICH FOUND EXPRESSION IN THE FIRST AMENDMENT.  NO ONE LOCALITY AND NO
ONE GROUP THROUGHOUT THE COLONIES CAN RIGHTLY BE GIVEN ENTIRE CREDIT
FOR HAVING AROUSED THE SENTIMENT THAT CULMINATED IN ADOPTION OF THE
BILL OF RIGHTS' PROVISIONS EMBRACING RELIGIOUS LIBERTY.  BUT VIRGINIA,
WHERE THE ESTABLISHED CHURCH HAD ACHIEVED A DOMINANT INFLUENCE IN
POLITICAL AFFAIRS AND WHERE MANY EXCESSES ATTRACTED WIDE PUBLIC
ATTENTION, PROVIDED A GREAT STIMULUS AND ABLE LEADERSHIP FOR THE
MOVEMENT.  THE PEOPLE THERE, AS ELSEWHERE, REACHED THE CONVICTION THAT
INDIVIDUAL RELIGIOUS LIBERTY COULD BE ACHIEVED BEST UNDER A GOVERNMENT
WHICH WAS STRIPPED OF ALL POWER TO TAX, TO SUPPORT, OR OTHERWISE TO
ASSIST ANY OR ALL RELIGIONS, OR TO INTERFERE WITH THE BELIEFS OF ANY
RELIGIOUS INDIVIDUAL OR GROUP. 

THE MOVEMENT TOWARD THIS END REACHED ITS DRAMATIC CLIMAX IN VIRGINIA
IN 1785-86 WHEN THE VIRGINIA LEGISLATIVE BODY WAS ABOUT TO RENEW
VIRGINIA'S TAX LEVY FOR THE SUPPORT OF THE ESTABLISHED CHURCH.  THOMAS
JEFFERSON AND JAMES MADISON LED THE FIGHT AGAINST THIS TAX.  MADISON
WROTE HIS GREAT MEMORIAL AND REMONSTRANCE AGAINST THE LAW.  FN11  IN
IT, HE ELOQUENTLY ARGUED THAT A TRUE RELIGION DID NOT NEED THE SUPPORT
OF LAW; THAT NO PERSON, EITHER BELIEVER OR NON-BELIEVER, SHOULD BE
TAXED TO SUPPORT A RELIGIOUS INSTITUTION OF ANY KIND; THAT THE BEST
INTEREST OF A SOCIETY REQUIRED THAT THE MINDS OF MEN ALWAYS BE WHOLLY
FREE; AND THAT CRUEL PERSECUTIONS WERE THE INEVITABLE RESULT OF
GOVERNMENT-ESTABLISHED RELIGIONS.  MADISON'S REMONSTRANCE RECEIVED
STRONG SUPPORT THROUGHOUT VIRGINIA,  FN12  AND THE ASSEMBLY POSTPONED
CONSIDERATION OF THE PROPOSED TAX MEASURE UNTIL ITS NEXT SESSION.  WHEN
THE PROPOSAL CAME UP FOR CONSIDERATION AT THAT SESSION, IT NOT ONLY
DIED IN COMMITTEE, BUT THE ASSEMBLY ENACTED THE FAMOUS "VIRGINIA BILL
FOR RELIGIOUS LIBERTY" ORIGINALLY WRITTEN BY THOMAS JEFFERSON.  FN13
THE PREAMBLE TO THAT BILL STATED AMONG OTHER THINGS THAT 

"ALMIGHTY GOD HATH CREATED THE MIND FREE; THAT ALL ATTEMPTS TO
INFLUENCE IT BY TEMPORAL PUNISHMENTS OR BURTHENS, OR BY CIVIL
INCAPACITATIONS, TEND ONLY TO BEGET HABITS OF HYPOCRISY AND MEANNESS,
AND ARE A DEPARTURE FROM THE PLAN OF THE HOLY AUTHOR OF OUR RELIGION,
WHO BEING LORD BOTH OF BODY AND MIND, YET CHOSE NOT TO PROPAGATE IT BY
COERCIONS ON EITHER  ...; THAT TO COMPEL A MAN TO FURNISH CONTRIBUTIONS
OF MONEY FOR THE PROPAGATION OF OPINIONS WHICH HE DISBELIEVES, IS
SINFUL AND TYRANNICAL; THAT EVEN THE FORCING HIM TO SUPPORT THIS OR
THAT TEACHER OF HIS OWN RELIGIOUS PERSUASION, IS DEPRIVING HIM OF THE
COMFORTABLE LIBERTY OF GIVING HIS CONTRIBUTIONS TO THE PARTICULAR
PASTOR, WHOSE MORALS HE WOULD MAKE HIS PATTERN  ..." 

AND THE STATUTE ITSELF ENACTED 

"THAT NO MAN SHALL BE COMPELLED TO FREQUENT OR SUPPORT ANY RELIGIOUS
WORSHIP, PLACE, OR MINISTRY WHATSOEVER, NOR SHALL BE ENFORCED,
RESTRAINED, MOLESTED, OR BURTHENED IN HIS BODY OR GOODS, NOR SHALL
OTHERWISE SUFFER ON ACCOUNT OF HIS RELIGIOUS OPINIONS OR BELIEF  ..." 
FN14 

THIS COURT HAS PREVIOUSLY RECOGNIZED THAT THE PROVISIONS OF THE FIRST
AMENDMENT, IN THE DRAFTING AND ADOPTION OF WHICH MADISON AND JEFFERSON
PLAYED SUCH LEADING ROLES, HAD THE SAME OBJECTIVE AND WERE INTENDED TO
PROVIDE THE SAME PROTECTION AGAINST GOVERNMENTAL INTRUSION ON RELIGIOUS
LIBERTY AS THE VIRGINIA STATUTE.  REYNOLDS V. UNITED STATES, SUPRA AT
164; WATSON V. JONES, 13 WALL.  679; DAVIS V. BEASON, 133 U.S. 333,
342.  PRIOR TO THE ADOPTION OF THE FOURTEENTH AMENDMENT, THE FIRST
AMENDMENT DID NOT APPLY AS A RESTRAINT AGAINST THE STATES.  FN15  MOST
OF THEM DID SOON PROVIDE SIMILAR CONSTITUTIONAL PROTECTIONS FOR
RELIGIOUS LIBERTY.  FN16  BUT SOME STATES PERSISTED FOR ABOUT HALF A
CENTURY IN IMPOSING RESTRAINTS UPON THE FREE EXERCISE OF RELIGION AND
IN DISCRIMINATING AGAINST PARTICULAR RELIGIOUS GROUPS.  FN17  IN RECENT
YEARS, SO FAR AS THE PROVISION AGAINST THE ESTABLISHMENT OF A RELIGION
IS CONCERNED, THE QUESTION HAS MOST FREQUENTLY ARISEN IN CONNECTION
WITH PROPOSED STATE AID TO CHURCH SCHOOLS AND EFFORTS TO CARRY ON
RELIGIOUS TEACHINGS IN THE PUBLIC SCHOOLS IN ACCORDANCE WITH THE TENETS
OF A PARTICULAR SECT.  FN18  SOME CHURCHES HAVE EITHER SOUGHT OR
ACCEPTED STATE FINANCIAL SUPPORT FOR THEIR SCHOOLS.  HERE AGAIN THE
EFFORTS TO OBTAIN STATE AID OR ACCEPTANCE OF IT HAVE NOT BEEN LIMITED
TO ANY ONE PARTICULAR FAITH.  FN19  THE STATE COURTS, IN THE MAIN, HAVE
REMAINED FAITHFUL TO THE LANGUAGE OF THEIR OWN CONSTITUTIONAL
PROVISIONS DESIGNED TO PROTECT RELIGIOUS FREEDOM AND TO SEPARATE
RELIGIONS AND GOVERNMENTS.  THEIR DECISIONS, HOWEVER, SHOW THE
DIFFICULTY IN DRAWING THE LINE BETWEEN TAX LEGISLATION WHICH PROVIDES
FUNDS FOR THE WELFARE OF THE GENERAL PUBLIC AND THAT WHICH IS DESIGNED
TO SUPPORT INSTITUTIONS WHICH TEACH RELIGION.  FN20 

THE MEANING AND SCOPE OF THE FIRST AMENDMENT, PREVENTING
ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF, IN
THE LIGHT OF ITS HISTORY AND THE EVILS IT WAS DESIGNED FOREVER TO
SUPPRESS, HAVE BEEN SEVERAL TIMES ELABORATED BY THE DECISIONS OF THIS
COURT PRIOR TO THE APPLICATION OF THE FIRST AMENDMENT TO THE STATES BY
THE FOURTEENTH N21.  THE BROAD MEANING GIVEN THE AMENDMENT BY THESE
EARLIER CASES HAS BEEN ACCEPTED BY THIS COURT IN ITS DECISIONS
CONCERNING AN INDIVIDUAL'S RELIGIOUS FREEDOM RENDERED SINCE THE
FOURTEENTH AMENDMENT WAS INTERPRETED TO MAKE THE PROHIBITIONS OF THE
FIRST APPLICABLE TO STATE ACTION ABRIDGING RELIGIOUS FREEDOM.  FN22
THERE IS EVERY REASON TO GIVE THE SAME APPLICATION AND BROAD
INTERPRETATION TO THE "ESTABLISHMENT OF RELIGION" CLAUSE.  THE
INTERRELATION OF THESE COMPLEMENTARY CLAUSES WAS WELL SUMMARIZED IN A
STATEMENT OF THE COURT OF APPEALS OF SOUTH CAROLINA,  FN23  QUOTED WITH
APPROVAL BY THIS COURT IN WATSON V. JONES, 13 WALL.  679, 730:  "THE
STRUCTURE OF OUR GOVERNMENT HAS, FOR THE PRESERVATION OF CIVIL LIBERTY,
RESCUED THE TEMPORAL INSTITUTIONS FROM RELIGIOUS INTERFERENCE.  ON THE
OTHER HAND, IT HAS SECURED RELIGIOUS LIBERTY FROM THE INVASION OF THE
CIVIL AUTHORITY." 

THE "ESTABLISHMENT OF RELIGION" CLAUSE OF THE FIRST AMENDMENT MEANS
AT LEAST THIS:  NEITHER A STATE NOR THE FEDERAL GOVERNMENT CAN SET UP A
CHURCH.  NEITHER CAN PASS LAWS WHICH AID ONE RELIGION, AID ALL
RELIGIONS, OR PREFER ONE RELIGION OVER ANOTHER.  NEITHER CAN FORCE NOR
INFLUENCE A PERSON TO GO TO OR TO REMAIN AWAY FROM CHURCH AGAINST HIS
WILL OR FORCE HIM TO PROFESS A BELIEF OR DISBELIEF IN ANY RELIGION.  NO
PERSON CAN BE PUNISHED FOR ENTERTAINING OR PROFESSING RELIGIOUS BELIEFS
OR DISBELIEFS, FOR CHURCH ATTENDANCE OR NON-ATTENDANCE.  NO TAX IN ANY
AMOUNT, LARGE OR SMALL, CAN BE LEVIED TO SUPPORT ANY RELIGIOUS
ACTIVITIES OR INSTITUTIONS, WHATEVER THEY MAY BE CALLED, OR WHATEVER
FORM THEY MAY ADOPT TO TEACH OR PRACTICE RELIGION.  NEITHER A STATE NOR
THE FEDERAL GOVERNMENT CAN, OPENLY OR SECRETLY, PARTICIPATE IN THE
AFFAIRS OF ANY RELIGIOUS ORGANIZATIONS OR GROUPS AND VICE VERSA.  IN
THE WORDS OF JEFFERSON, THE CLAUSE AGAINST ESTABLISHMENT OF RELIGION BY
LAW WAS INTENDED TO ERECT "A WALL OF SEPARATION BETWEEN CHURCH AND
STATE."  REYNOLDS V. UNITED STATES, SUPRA AT 164. 

WE MUST CONSIDER THE NEW JERSEY STATUTE IN ACCORDANCE WITH THE
FOREGOING LIMITATIONS IMPOSED BY THE FIRST AMENDMENT.  BUT WE MUST NOT
STRIKE THAT STATE STATUTE DOWN IF IT IS WITHIN THE STATE'S
CONSTITUTIONAL POWER EVEN THOUGH IT APPROACHES THE VERGE OF THAT
POWER.  SEE INTERSTATE RY. V. MASSACHUSETTS, HOLMES, J., SUPRA AT 85,
88.  NEW JERSEY CANNOT CONSISTENTLY WITH THE "ESTABLISHMENT OF
RELIGION" CLAUSE OF THE FIRST AMENDMENT CONTRIBUTE TAX-RAISED FUNDS TO
THE SUPPORT OF AN INSTITUTION WHICH TEACHES THE TENETS AND FAITH OF ANY
CHURCH.  ON THE OTHER HAND, OTHER LANGUAGE OF THE AMENDMENT COMMANDS
THAT NEW JERSEY CANNOT HAMPER ITS CITIZENS IN THE FREE EXERCISE OF
THEIR OWN RELIGION.  CONSEQUENTLY, IT CANNOT EXCLUDE INDIVIDUAL
CATHOLICS, LUTHERANS, MOHAMMEDANS, BAPTISTS, JEWS, METHODISTS, NON
BELIEVERS, PRESBYTERIANS, OR THE MEMBERS OF ANY OTHER FAITH, BECAUSE OF
THEIR FAITH, OR LACK OF IT, FROM RECEIVING THE BENEFITS OF PUBLIC
WELFARE LEGISLATION.  WHILE WE DO NOT MEAN TO INTIMATE THAT A STATE
COULD NOT PROVIDE TRANSPORTATION ONLY TO CHILDREN ATTENDING PUBLIC
SCHOOLS, WE MUST BE CAREFUL, IN PROTECTING THE CITIZENS OF NEW JERSEY
AGAINST STATE-ESTABLISHED CHURCHES, TO BE SURE THAT WE DO NOT
INADVERTENTLY PROHIBIT NEW JERSEY FROM EXTENDING ITS GENERAL STATE LAW
BENEFITS TO ALL ITS CITIZENS WITHOUT REGARD TO THEIR RELIGIOUS BELIEF. 

MEASURED BY THESE STANDARDS, WE CANNOT SAY THAT THE FIRST AMENDMENT
PROHIBITS NEW JERSEY FROM SPENDING TAX-RAISED FUNDS TO PAY THE BUS
FARES OF PAROCHIAL SCHOOL PUPILS AS A PART OF A GENERAL PROGRAM UNDER
WHICH IT PAYS THE FARES OF PUPILS ATTENDING PUBLIC AND OTHER SCHOOLS. 
IT IS UNDOUBTEDLY TRUE THAT CHILDREN ARE HELPED TO GET TO CHURCH
SCHOOLS.  THERE IS EVEN A POSSIBILITY THAT SOME OF THE CHILDREN MIGHT
NOT BE SENT TO THE CHURCH SCHOOLS IF THE PARENTS WERE COMPELLED TO PAY
THEIR CHILDREN'S BUS FARES OUT OF THEIR OWN POCKETS WHEN TRANSPORTATION
TO A PUBLIC SCHOOL WOULD HAVE BEEN PAID FOR BY THE STATE.  THE SAME
POSSIBILITY EXISTS WHERE THE STATE REQUIRES A LOCAL TRANSIT COMPANY TO
PROVIDE REDUCED FARES TO SCHOOL CHILDREN INCLUDING THOSE ATTENDING
PAROCHIAL SCHOOLS,  FN24  OR WHERE A MUNICIPALLY OWNED TRANSPORTATION
SYSTEM UNDERTAKES TO CARRY ALL SCHOOL CHILDREN FREE OF CHARGE. 
MOREOVER, STATE-PAID POLICEMEN, DETAILED TO PROTECT CHILDREN GOING TO
AND FROM CHURCH SCHOOLS FROM THE VERY REAL HAZARDS OF TRAFFIC, WOULD
SERVE MUCH THE SAME PURPOSE AND ACCOMPLISH MUCH THE SAME RESULT AS
STATE PROVISIONS INTENDED TO GUARANTEE FREE TRANSPORTATION OF A KIND
WHICH THE STATE DEEMS TO BE BEST FOR THE SCHOOL CHILDREN'S WELFARE. 
AND PARENTS MIGHT REFUSE TO RISK THEIR CHILDREN TO THE SERIOUS DANGER
OF TRAFFIC ACCIDENTS GOING TO AND FROM PAROCHIAL SCHOOLS, THE
APPROACHES TO WHICH WERE NOT PROTECTED BY POLICEMEN.  SIMILARLY,
PARENTS MIGHT BE RELUCTANT TO PERMIT THEIR CHILDREN TO ATTEND SCHOOLS
WHICH THE STATE HAD CUT OFF FROM SUCH GENERAL GOVERNMENT SERVICES AS
ORDINARY POLICE AND FIRE PROTECTION, CONNECTIONS FOR SEWAGE DISPOSAL,
PUBLIC HIGHWAYS AND SIDEWALKS.  OF COURSE, CUTTING OFF CHURCH SCHOOLS
FROM THESE SERVICES, SO SEPARATE AND SO INDISPUTABLY MARKED OFF FROM
THE RELIGIOUS FUNCTION, WOULD MAKE IT FAR MORE DIFFICULT FOR THE
SCHOOLS TO OPERATE.  BUT SUCH IS OBVIOUSLY NOT THE PURPOSE OF THE FIRST
AMENDMENT.  THAT AMENDMENT REQUIRES THE STATE TO BE A NEUTRAL IN ITS
RELATIONS WITH GROUPS OF RELIGIOUS BELIEVERS AND NON-BELIEVERS; IT DOES
NOT REQUIRE THE STATE TO BE THEIR ADVERSARY.  STATE POWER IS NO MORE TO
BE USED SO AS TO HANDICAP RELIGIONS THAN IT IS TO FAVOR THEM. 

THIS COURT HAS SAID THAT PARENTS MAY, IN THE DISCHARGE OF THEIR DUTY
UNDER STATE COMPULSORY EDUCATION LAWS, SEND THEIR CHILDREN TO A
RELIGIOUS RATHER THAN A PUBLIC SCHOOL IF THE SCHOOL MEETS THE SECULAR
EDUCATIONAL REQUIREMENTS WHICH THE STATE HAS POWER TO IMPOSE.  SEE
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510.  IT APPEARS THAT THESE
PAROCHIAL SCHOOLS MEET NEW JERSEY'S REQUIREMENTS.  THE STATE
CONTRIBUTES NO MONEY TO THE SCHOOLS.  IT DOES NOT SUPPORT THEM.  ITS
LEGISLATION, AS APPLIED, DOES NO MORE THAN PROVIDE A GENERAL PROGRAM TO
HELP PARENTS GET THEIR CHILDREN, REGARDLESS OF THEIR RELIGION, SAFELY
AND EXPEDITIOUSLY TO AND FROM ACCREDITED SCHOOLS. 

THE FIRST AMENDMENT HAS ERECTED A WALL BETWEEN CHURCH AND STATE. 
THAT WALL MUST BE KEPT HIGH AND IMPREGNABLE.  WE COULD NOT APPROVE THE
SLIGHTEST BREACH.  NEW JERSEY HAS NOT BREACHED IT HERE.  AFFIRMED. 

FN1  "WHENEVER IN ANY DISTRICT THERE ARE CHILDREN LIVING REMOTE FROM
ANY SCHOOLHOUSE, THE BOARD OF EDUCATION OF THE DISTRICT MAY MAKE RULES
AND CONTRACTS FOR THE TRANSPORTATION OF SUCH CHILDREN TO AND FROM
SCHOOL, INCLUDING THE TRANSPORTATION OF SCHOOL CHILDREN TO AND FROM
SCHOOL OTHER THAN A PUBLIC SCHOOL, EXCEPT SUCH SCHOOL AS IS OPERATED
FOR PROFIT IN WHOLE OR IN PART. 

"WHEN ANY SCHOOL DISTRICT PROVIDES ANY TRANSPORTATION FOR PUBLIC
SCHOOL CHILDREN TO AND FROM SCHOOL, TRANSPORTATION FROM ANY POINT IN
SUCH ESTABLISHED SCHOOL ROUTE TO ANY OTHER POINT IN SUCH ESTABLISHED
SCHOOL ROUTE SHALL BE SUPPLIED TO SCHOOL CHILDREN RESIDING IN SUCH
SCHOOL DISTRICT IN GOING TO AND FROM SCHOOL OTHER THAN A PUBLIC SCHOOL,
EXCEPT SUCH SCHOOL AS IS OPERATED FOR PROFIT IN WHOLE OR IN PART."  NEW
JERSEY LAWS, 1941, C. 191, P. 581; N.J.R.S. CUM. SUPP., TIT. 18, C. 14,
SEC. 8. 

FN2  APPELLANT DOES NOT CHALLENGE THE NEW JERSEY STATUTE OR THE
RESOLUTION ON THE GROUND THAT EITHER VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT BY EXCLUDING PAYMENT FOR THE
TRANSPORTATION OF ANY PUPIL WHO ATTENDS A "PRIVATE SCHOOL RUN FOR
PROFIT."  ALTHOUGH THE TOWNSHIP RESOLUTION AUTHORIZED REIMBURSEMENT
ONLY FOR PARENTS OF PUBLIC AND CATHOLIC SCHOOL PUPILS, APPELLANT DOES
NOT ALLEGE, NOR IS THERE ANYTHING IN THE RECORD WHICH WOULD OFFER THE
SLIGHTEST SUPPORT TO AN ALLEGATION, THAT THERE WERE ANY CHILDREN IN THE
TOWNSHIP WHO ATTENDED OR WOULD HAVE ATTENDED, BUT FOR WANT OF
TRANSPORTATION, ANY BUT PUBLIC AND CATHOLIC SCHOOLS.  IT WILL BE
APPROPRIATE TO CONSIDER THE EXCLUSION OF STUDENTS OF PRIVATE SCHOOLS
OPERATED FOR PROFIT WHEN AND IF IT IS PROVED TO HAVE OCCURRED, IS MADE
THE BASIS OF A SUIT BY ONE IN A POSITION TO CHALLENGE IT, AND NEW
JERSEY'S HIGHEST COURT HAS RULED ADVERSELY TO THE CHALLENGER.  STRIKING
DOWN A STATE LAW IS NOT A MATTER OF SUCH LIGHT MOMENT THAT IT SHOULD BE
DONE BY A FEDERAL COURT EX MERO MOTU ON A POSTULATE NEITHER CHARGED NOR
PROVED, BUT WHICH RESTS ON NOTHING BUT A POSSIBILITY.  CF. LIVERPOOL,
N.Y. & P.S.S. CO. V. COMM'RS OF EMIGRATION, 113 U.S. 33, 39. 

FN3  IT MIGHT HOLD THE EXCEPTING CLAUSE TO BE INVALID, AND SUSTAIN
THE STATUTE WITH THAT CLAUSE EXCISED.  N.J.R.S., TIT. 1, C. 1, SEC. 10,
PROVIDES WITH REGARD TO ANY STATUTE THAT IF "ANY PROVISION THEREOF,
SHALL BE DECLARED TO BE UNCONSTITUTIONAL  ...  IN WHOLE OR IN PART, BY
A COURT OF COMPETENT JURISDICTION, SUCH  ...  ARTICLE  ... SHALL, TO
THE EXTENT THAT IT IS NOT UNCONSTITUTIONAL,  ...  BE ENFORCED...."  THE
OPINION OF THE COURT OF ERRORS AND APPEALS IN THIS VERY CASE SUGGESTS
THAT STATE LAW NOW AUTHORIZES TRANSPORTATION OF ALL PUPILS.  ITS
OPINION STATED:  "SINCE WE HOLD THAT THE LEGISLATURE MAY APPROPRIATE
GENERAL STATE FUNDS OR AUTHORIZE THE USE OF LOCAL FUNDS FOR THE
TRANSPORTATION OF PUPILS TO ANY SCHOOL, WE CONCLUDE THAT SUCH
AUTHORIZATION OF THE USE OF LOCAL FUNDS IS LIKEWISE AUTHORIZED BY
PAMPH.  L. 1941, CH. 191, AND R.S. 18:7-78."  133 N.J.L. 350, 354, 44
A.2D 333, 337. 

FN4  SEE REYNOLDS V. UNITED STATES, 98 U.S. 145, 162; CF. KNOWLTON V.
MOORE, 178 U.S. 41, 89, 106. 

FN5  SEE E.G. MACAULAY, HISTORY OF ENGLAND (1849) I, CC. 2, 4; THE
CAMBRIDGE MODERN HISTORY (1908) V, CC. V, IX, XI; BEARD, RISE OF
AMERICAN CIVILIZATION (1933) I, 60; COBB, RISE OF RELIGIOUS LIBERTY IN
AMERICA (1902) C. II; SWEET, THE STORY OF RELIGION IN AMERICA (1939) C.
II; SWEET, RELIGION IN COLONIAL AMERICA (1942) 320-322.    FN6  SEE
E.G. THE CHARTER OF THE COLONY OF CAROLINA WHICH GAVE THE GRANTEES THE
RIGHT OF "PATRONAGE AND ADVOWSONS OF ALL THE CHURCHES AND CHAPELS  ...
TOGETHER WITH LICENCE AND POWER TO BUILD AND FOUND CHURCHES, CHAPELS
AND ORATORIES  ...  AND TO CAUSE THEM TO BE DEDICATED AND CONSECRATED,
ACCORDING TO THE ECCLESIASTICAL LAWS OF OUR KINGDOM OF ENGLAND." 
POORE, CONSTITUTIONS (1878) II, 1390, 1391.  THAT OF MARYLAND GAVE TO
THE GRANTEE LORD BALTIMORE "THE PATRONAGES, AND ADVOWSONS OF ALL
CHURCHES WHICH  ...  SHALL HAPPEN TO BE BUILT, TOGETHER WITH LICENCE
AND FACULTY OF ERECTING AND FOUNDING CHURCHES, CHAPELS, AND PLACES OF
WORSHIP  ...  AND OF CAUSING THE SAME TO BE DEDICATED AND CONSECRATED
ACCORDING TO THE ECCLESIASTICAL LAWS OF OUR KINGDOM OF ENGLAND, WITH
ALL, AND SINGULAR SUCH, AND AS AMPLE RIGHTS, JURISDICTIONS, PRIVILEGES,
...  AS ANY BISHOP  ...  IN OUR KINGDOM OF ENGLAND, EVER  ...  HATH HAD
..."  MACDONALD, DOCUMENTARY SOURCE BOOK OF AMERICAN HISTORY (1934)
31, 33.  THE COMMISSION OF NEW HAMPSHIRE OF 1680, POORE, SUPRA, II,
1277, STATED:  "AND ABOVE ALL THINGS WE DO BY THESE PRESENTS WILL,
REQUIRE AND COMAND OUR SAID COUNCILL TO TAKE ALL POSSIBLE CARE FOR YE
DISCOUNTENANCING OF VICE AND ENCOURAGING OF VIRTUE AND GOOD LIVING; AND
THAT BY SUCH EXAMPLES YE INFIDLE MAY BE INVITED AND DESIRE TO PARTAKE
OF YE CHRISTIAN RELIGION, AND FOR YE GREATER EASE AND SATISFACTION OF
YE SD LOVING SUBJECTS IN MATTERS OF RELIGION, WE DO HEREBY REQUIRE AND
COMAND YT LIBERTY OF CONSCIENCE SHALL BE ALLOWED UNTO ALL PROTESTANTS;
YT SUCH ESPECIALLY AS SHALL BE CONFORMABLE TO YE RITES OF YE CHURCH OF
ENGD SHALL BE PARTICULARLY COUNTENANCED AND ENCOURAGED."  SEE ALSO
PAWLET V. CLARK, 9 CRANCH 292. 

FN7  SEE E.G. SEMPLE, BAPTISTS IN VIRGINIA (1894); SWEET, RELIGION IN
COLONIAL AMERICA, SUPRA AT 131-152, 322-339. 

FN8  ALMOST EVERY COLONY EXACTED SOME KIND OF TAX FOR CHURCH
SUPPORT.  SEE E.G. COBB, OP. CIT. SUPRA, NOTE 5, 110(VIRGINIA);
131(NORTH CAROLINA); 169(MASSACHUSETTS); 270(CONNECTICUT); 304, 310,
339(NEW YORK); 386(MARYLAND); 295(NEW HAMPSHIRE). 

FN9  MADISON WROTE TO A FRIEND IN 1774:  "THAT DIABOLICAL, HELL
CONCEIVED PRINCIPLE OF PERSECUTION RAGES AMONG SOME  ...  THIS VEXES ME
THE WORST OF ANYTHING WHATEVER.  THERE ARE AT THIS TIME IN THE ADJACENT
COUNTRY NOT LESS THAN FIVE OR SIX WELL-MEANING MEN IN CLOSE JAIL FOR
PUBLISHING THEIR RELIGIOUS SENTIMENTS, WHICH IN THE MAIN ARE VERY
ORTHODOX.  I HAVE NEITHER PATIENCE TO HEAR, TALK, OR THINK OF ANYTHING
RELATIVE TO THIS MATTER; FOR I HAVE SQUABBLED AND SCOLDED, ABUSED AND
RIDICULED, SO LONG ABOUT IT TO LITTLE PURPOSE, THAT I AM WITHOUT COMMON
PATIENCE.  SO I MUST BEG YOU TO PITY ME, AND PRAY FOR LIBERTY OF
CONSCIENCE TO ALL."  I WRITINGS OF JAMES MADISON (1900) 18, 21. 

FN10  VIRGINIA'S RESISTANCE TO TAXATION FOR CHURCH SUPPORT WAS
CRYSTALLIZED IN THE FAMOUS "PARSONS' CAUSE" ARGUED BY PATRICK HENRY IN
1763.  FOR AN ACCOUNT SEE COBB, OP. CIT., SUPRA, NOTE 5, 108-111. 

FN11  II WRITINGS OF JAMES MADISON, 183. 

FN12  IN A RECENTLY DISCOVERED COLLECTION OF MADISON'S PAPERS,
MADISON RECOLLECTED THAT HIS REMONSTRANCE "MET WITH THE APPROBATION OF
THE BAPTISTS, THE PRESBYTERIANS, THE QUAKERS, AND THE FEW ROMAN
CATHOLICS, UNIVERSALLY; OF THE METHODISTS IN PART; AND EVEN OF NOT A
FEW OF THE SECT FORMERLY ESTABLISHED BY LAW."  MADISON, MONOPOLIES,
PERPETUITIES, CORPORATIONS, ECCLESIASTICAL ENDOWMENTS, IN FLEET,
MADISON'S "DETACHED MEMORANDUM," 3 WILLIAM AND MARY Q. (1946) 534, 551,
555. 

FN13  FOR ACCOUNTS OF BACKGROUND AND EVOLUTION OF THE VIRGINIA BILL
FOR RELIGIOUS LIBERTY SEE E.G. JAMES, THE STRUGGLE FOR RELIGIOUS
LIBERTY IN VIRGINIA (1900); THOM, THE STRUGGLE FOR RELIGIOUS FREEDOM IN
VIRGINIA:  THE BAPTISTS (1900); COBB, OP. CIT., SUPRA, NOTE 5, 74-115;
MADISON, MONOPOLIES, PERPETUITIES, CORPORATIONS, ECCLESIASTICAL
ENDOWMENTS, OP. CIT., SUPRA, NOTE 12, 554, 556. 

FN14  12 HENING, STATUTES OF VIRGINIA (1823) 84; COMMAGER, DOCUMENTS
OF AMERICAN HISTORY (1944) 125. 

FN15  PERMOLI V. NEW ORLEANS, 3 HOW.  589.  CF. BARRON V. BALTIMORE,
7 PET. 243. 

FN16  FOR A COLLECTION OF STATE CONSTITUTIONAL PROVISIONS ON FREEDOM
OF RELIGION SEE GABEL, PUBLIC FUNDS FOR CHURCH AND PRIVATE SCHOOLS
(1937) 148-149.  SEE ALSO 2 COOLEY, CONSTITUTIONAL LIMITATIONS (1927)
960-985. 

FN17  TEST PROVISIONS FORBADE OFFICEHOLDERS TO "DENY  ...  THE TRUTH
OF THE PROTESTANT RELIGION," E.G. CONSTITUTION OF NORTH CAROLINA (1776)
SEC. XXXII, II POORE, SUPRA, 1413.  MARYLAND PERMITTED TAXATION FOR
SUPPORT OF THE CHRISTIAN RELIGION AND LIMITED CIVIL OFFICE TO
CHRISTIANS UNTIL 1818, ID., I, 819, 820, 832. 

FN18  SEE NOTE 50 YALE L.J. (1941) 917; SEE ALSO CASES COLLECTED 14
L.R.A. 418; 5 A.L.R. 879; 141 A.L.R. 1148. 

FN19  SEE CASES COLLECTED 14 L.R.A. 418; 5 A.L.R. 879; 141 A.L.R.
1148. 

FN20  IBID.  SEE ALSO COOLEY, OP. CIT., SUPRA, NOTE 16. 

FN21  TERRETT V. TAYLOR, 9 CRANCH 43; WATSON V. JONES, 13 WALL.  679;
DAVIS V. BEASON, 133 U.S. 333; CF. REYNOLDS V. UNITED STATES, SUPRA,
162; REUBEN QUICK BEAR V. LEUPP, 210 U.S. 50. 

FN22  CANTWELL V. CONNECTICUT, 310 U.S. 296; JAMISON V. TEXAS, 318
U.S. 413; LARGENT V. TEXAS, 318 U.S. 418; MURDOCK V. PENNSYLVANIA,
SUPRA; WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S.
624; FOLLETT V. MCCORMICK, 321 U.S. 573; MARSH V. ALABAMA, 326 U.S.
501.  CF. BRADFIELD V. ROBERTS, 175 U.S. 291. 

FN23  HARMON V. DREHER, SPEER'S EQUITY REPORTS (S.C., 1843), 87,
120. 

FN24  NEW JERSEY LONG AGO PERMITTED PUBLIC UTILITIES TO CHARGE SCHOOL
CHILDREN REDUCED RATES.  SEE PUBLIC S.R. CO. V. PUBLIC UTILITY COMM'RS,
81 N.J.L. 363, 80 A. 27(1911); SEE ALSO INTERSTATE RY. V.
MASSACHUSETTS, SUPRA.  THE DISTRICT OF COLUMBIA CODE REQUIRES THAT THE
NEW CHARTER OF THE DISTRICT PUBLIC TRANSPORTATION COMPANY PROVIDE A
THREE-CENT FARE "FOR SCHOOL CHILDREN  ...  GOING TO AND FROM PUBLIC,
PAROCHIAL, OR LIKE SCHOOLS  ..."  47 STAT. 752, 759. 

MR. JUSTICE JACKSON, DISSENTING. 

I FIND MYSELF, CONTRARY TO FIRST IMPRESSIONS, UNABLE TO JOIN IN THIS
DECISION.  I HAVE A SYMPATHY, THOUGH IT IS NOT IDEOLOGICAL, WITH
CATHOLIC CITIZENS WHO ARE COMPELLED BY LAW TO PAY TAXES FOR PUBLIC
SCHOOLS, AND ALSO FEEL CONSTRAINED BY CONSCIENCE AND DISCIPLINE TO
SUPPORT OTHER SCHOOLS FOR THEIR OWN CHILDREN.  SUCH RELIEF TO THEM AS
THIS CASE INVOLVES IS NOT IN ITSELF A SERIOUS BURDEN TO TAXPAYERS AND I
HAD ASSUMED IT TO BE AS LITTLE SERIOUS IN PRINCIPLE.  STUDY OF THIS
CASE CONVINCES ME OTHERWISE.  THE COURT'S OPINION MARSHALS EVERY
ARGUMENT IN FAVOR OF STATE AID AND PUTS THE CASE IN ITS MOST FAVORABLE
LIGHT, BUT MUCH OF ITS REASONING CONFIRMS MY CONCLUSIONS THAT THERE ARE
NO GOOD GROUNDS UPON WHICH TO SUPPORT THE PRESENT LEGISLATION.  IN
FACT, THE UNDERTONES OF THE OPINION, ADVOCATING COMPLETE AND
UNCOMPROMISING SEPARATION OF CHURCH FROM STATE, SEEM UTTERLY DISCORDANT
WITH ITS CONCLUSION YIELDING SUPPORT TO THEIR COMMINGLING IN
EDUCATIONAL MATTERS.  THE CASE WHICH IRRESISTIBLY COMES TO MIND AS THE
MOST FITTING PRECEDENT IS THAT OF JULIA WHO, ACCORDING TO BYRON'S
REPORTS, "WHISPERING 'I WILL NE'ER CONSENT,'  - CONSENTED." 

                        I. 

THE COURT SUSTAINS THIS LEGISLATION BY ASSUMING TWO DEVIATIONS FROM
THE FACTS OF THIS PARTICULAR CASE; FIRST, IT ASSUMES A STATE OF FACTS
THE RECORD DOES NOT SUPPORT, AND SECONDLY, IT REFUSES TO CONSIDER FACTS
WHICH ARE INESCAPABLE ON THE RECORD. 

THE COURT CONCLUDES THAT THIS "LEGISLATION, AS APPLIED, DOES NO MORE
THAN PROVIDE A GENERAL PROGRAM TO HELP PARENTS GET THEIR CHILDREN,
REGARDLESS OF THEIR RELIGION, SAFELY AND EXPEDITIOUSLY TO AND FROM
ACCREDITED SCHOOLS," AND IT DRAWS A COMPARISON BETWEEN "STATE
PROVISIONS INTENDED TO GUARANTEE FREE TRANSPORTATION" FOR SCHOOL
CHILDREN WITH SERVICES SUCH AS POLICE AND FIRE PROTECTION, AND IMPLIES
THAT WE ARE HERE DEALING WITH "LAWS AUTHORIZING NEW TYPES OF PUBLIC
SERVICES  ..."  THIS HYPOTHESIS PERMEATES THE OPINION.  THE FACTS WILL
NOT BEAR THAT CONSTRUCTION. 

THE TOWNSHIP OF EWING IS NOT FURNISHING TRANSPORTATION TO THE
CHILDREN IN ANY FORM; IT IS NOT OPERATING SCHOOL BUSSES ITSELF OR
CONTRACTING FOR THEIR OPERATION; AND IT IS NOT PERFORMING ANY PUBLIC
SERVICE OF ANY KIND WITH THIS TAXPAYER'S MONEY.  ALL SCHOOL CHILDREN
ARE LEFT TO RIDE AS ORDINARY PAYING PASSENGERS ON THE REGULAR BUSSES
OPERATED BY THE PUBLIC TRANSPORTATION SYSTEM.  WHAT THE TOWNSHIP DOES,
AND WHAT THE TAXPAYER COMPLAINS OF, IS AT STATED INTERVALS TO REIMBURSE
PARENTS FOR THE FARES PAID, PROVIDED THE CHILDREN ATTEND EITHER PUBLIC
SCHOOLS OR CATHOLIC CHURCH SCHOOLS.  THIS EXPENDITURE OF TAX FUNDS HAS
NO POSSIBLE EFFECT ON THE CHILD'S SAFETY OR EXPEDITION IN TRANSIT.  AS
PASSENGERS ON THE PUBLIC BUSSES THEY TRAVEL AS FAST AND NO FASTER, AND
ARE AS SAFE AND NO SAFER, SINCE THEIR PARENTS ARE REIMBURSED AS
BEFORE. 

IN ADDITION TO THUS ASSUMING A TYPE OF SERVICE THAT DOES NOT EXIST,
THE COURT ALSO INSISTS THAT WE MUST CLOSE OUR EYES TO A DISCRIMINATION
WHICH DOES EXIST.  THE RESOLUTION WHICH AUTHORIZES DISBURSEMENT OF THIS
TAXPAYER'S MONEY LIMITS REIMBURSEMENT TO THOSE WHO ATTEND PUBLIC
SCHOOLS AND CATHOLIC SCHOOLS.  THAT IS THE WAY THE ACT IS APPLIED TO
THIS TAXPAYER. 

THE NEW JERSEY ACT IN QUESTION MAKES THE CHARACTER OF THE SCHOOL, NOT
THE NEEDS OF THE CHILDREN, DETERMINE THE ELIGIBILITY OF PARENTS TO
REIMBURSEMENT.  THE ACT PERMITS PAYMENT FOR TRANSPORTATION TO PAROCHIAL
SCHOOLS OR PUBLIC SCHOOLS BUT PROHIBITS IT TO PRIVATE SCHOOLS OPERATED
IN WHOLE OR IN PART FOR PROFIT.  CHILDREN OFTEN ARE SENT TO PRIVATE
SCHOOLS BECAUSE THEIR PARENTS FEEL THAT THEY REQUIRE MORE INDIVIDUAL
INSTRUCTION THAN PUBLIC SCHOOLS CAN PROVIDE, OR BECAUSE THEY ARE
BACKWARD OR DEFECTIVE AND NEED SPECIAL ATTENTION.  IF ALL CHILDREN OF
THE STATE WERE OBJECTS OF IMPARTIAL SOLICITUDE, NO REASON IS OBVIOUS
FOR DENYING TRANSPORTATION REIMBURSEMENT TO STUDENTS OF THIS CLASS, FOR
THESE OFTEN ARE AS NEEDY AND AS WORTHY AS THOSE WHO GO TO PUBLIC OR
PAROCHIAL SCHOOLS.  REFUSAL TO REIMBURSE THOSE WHO ATTEND SUCH SCHOOLS
IS UNDERSTANDABLE ONLY IN THE LIGHT OF A PURPOSE TO AID THE SCHOOLS,
BECAUSE THE STATE MIGHT WELL ABSTAIN FROM AIDING A PROFIT-MAKING
PRIVATE ENTERPRISE.  THUS, UNDER THE ACT AND RESOLUTION BROUGHT TO US
BY THIS CASE, CHILDREN ARE CLASSIFIED ACCORDING TO THE SCHOOLS THEY
ATTEND AND ARE TO BE AIDED IF THEY ATTEND THE PUBLIC SCHOOLS OR PRIVATE
CATHOLIC SCHOOLS, AND THEY ARE NOT ALLOWED TO BE AIDED IF THEY ATTEND
PRIVATE SECULAR SCHOOLS OR PRIVATE RELIGIOUS SCHOOLS OF OTHER FAITHS. 

OF COURSE, THIS CASE IS NOT ONE OF A BAPTIST OR A JEW OR AN
EPISCOPALIAN OR A PUPIL OF A PRIVATE SCHOOL COMPLAINING OF
DISCRIMINATION.  IT IS ONE OF A TAXPAYER URGING THAT HE IS BEING TAXED
FOR AN UNCONSTITUTIONAL PURPOSE.  I THINK HE IS ENTITLED TO HAVE US
CONSIDER THE ACT JUST AS IT IS WRITTEN.  THE STATEMENT BY THE NEW
JERSEY COURT THAT IT HOLDS THE LEGISLATURE MAY AUTHORIZE USE OF LOCAL
FUNDS "FOR THE TRANSPORTATION OF PUPILS TO ANY SCHOOL," 133 N.J.L. 350,
354, 44 A.2D 333, 337, IN VIEW OF THE OTHER CONSTITUTIONAL VIEWS
EXPRESSED, IS NOT A HOLDING THAT THIS ACT AUTHORIZES TRANSPORTATION OF
ALL PUPILS TO ALL SCHOOLS.  AS APPLIED TO THIS TAXPAYER BY THE ACTION
HE COMPLAINS OF, CERTAINLY THE ACT DOES NOT AUTHORIZE REIMBURSEMENT TO
THOSE WHO CHOOSE ANY ALTERNATIVE TO THE PUBLIC SCHOOL EXCEPT CATHOLIC
CHURCH SCHOOLS. 

IF WE ARE TO DECIDE THIS CASE ON THE FACTS BEFORE US, OUR QUESTION IS
SIMPLY THIS:  IS IT CONSTITUTIONAL TO TAX THIS COMPLAINANT TO PAY THE
COST OF CARRYING PUPILS TO CHURCH SCHOOLS OF ONE SPECIFIED
DENOMINATION? 

                                 II. 

WHETHER THE TAXPAYER CONSTITUTIONALLY CAN BE MADE TO CONTRIBUTE AID
TO PARENTS OF STUDENTS BECAUSE OF THEIR ATTENDANCE AT PAROCHIAL SCHOOLS
DEPENDS UPON THE NATURE OF THOSE SCHOOLS AND THEIR RELATION TO THE
CHURCH.  THE CONSTITUTION SAYS NOTHING OF EDUCATION.  IT LAYS NO
OBLIGATION ON THE STATES TO PROVIDE SCHOOLS AND DOES NOT UNDERTAKE TO
REGULATE STATE SYSTEMS OF EDUCATION IF THEY SEE FIT TO MAINTAIN THEM. 
BUT THEY CANNOT, THROUGH SCHOOL POLICY ANY MORE THAN THROUGH OTHER
MEANS, INVADE RIGHTS SECURED TO CITIZENS BY THE CONSTITUTION OF THE
UNITED STATES.  WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319
U.S. 624.  ONE OF OUR BASIC RIGHTS IS TO BE FREE OF TAXATION TO SUPPORT
A TRANSGRESSION OF THE CONSTITUTIONAL COMMAND THAT THE AUTHORITIES
"SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR
PROHIBITING THE FREE EXERCISE THEREOF  ..."  U.S. CONST., AMEND. I;
CANTWELL V. CONNECTICUT, 310 U.S. 296. 

THE FUNCTION OF THE CHURCH SCHOOL IS A SUBJECT ON WHICH THIS RECORD
IS MEAGER.  IT SHOWS ONLY THAT THE SCHOOLS ARE UNDER SUPERINTENDENCE OF
A PRIEST AND THAT "RELIGION IS TAUGHT AS PART OF THE CURRICULUM."  BUT
WE KNOW THAT SUCH SCHOOLS ARE PAROCHIAL ONLY IN NAME - THEY, IN FACT,
REPRESENT A WORLD-WIDE AND AGE-OLD POLICY OF THE ROMAN CATHOLIC
CHURCH.  UNDER THE RUBRIC "CATHOLIC SCHOOLS," THE CANON LAW OF THE
CHURCH, BY WHICH ALL CATHOLICS ARE BOUND, PROVIDES: 

"1215.  CATHOLIC CHILDREN ARE TO BE EDUCATED IN SCHOOLS WHERE NOT
ONLY NOTHING CONTRARY TO CATHOLIC FAITH AND MORALS IS TAUGHT, BUT
RATHER IN SCHOOLS WHERE RELIGIOUS AND MORAL TRAINING OCCUPY THE FIRST
PLACE....  (CANON 1372.)" 

"1216.  IN EVERY ELEMENTARY SCHOOL THE CHILDREN MUST, ACCORDING TO
THEIR AGE, BE INSTRUCTED IN CHRISTIAN DOCTRINE. 

"THE YOUNG PEOPLE WHO ATTEND THE HIGHER SCHOOLS ARE TO RECEIVE A
DEEPER RELIGIOUS KNOWLEDGE, AND THE BISHOPS SHALL APPOINT PRIESTS
QUALIFIED FOR SUCH WORK BY THEIR LEARNING AND PIETY.  (CANON 1373.)" 

"1217.  CATHOLIC CHILDREN SHALL NOT ATTEND NON-CATHOLIC, INDIFFERENT,
SCHOOLS THAT ARE MIXED, THAT IS TO SAY, SCHOOLS OPEN TO CATHOLICS AND
NON-CATHOLICS ALIKE.  THE BISHOP OF THE DIOCESE ONLY HAS THE RIGHT, IN
HARMONY WITH THE INSTRUCTIONS OF THE HOLY SEE, TO DECIDE UNDER WHAT
CIRCUMSTANCES, AND WITH WHAT SAFEGUARDS TO PREVENT LOSS OF FAITH, IT
MAY BE TOLERATED THAT CATHOLIC CHILDREN GO TO SUCH SCHOOLS.  (CANON
1374.)"    "1224.  THE RELIGIOUS TEACHING OF YOUTH IN ANY SCHOOLS IS
SUBJECT TO THE AUTHORITY AND INSPECTION OF THE CHURCH. 

"THE LOCAL ORDINARIES HAVE THE RIGHT AND DUTY TO WATCH THAT NOTHING
IS TAUGHT CONTRARY TO FAITH OR GOOD MORALS, IN ANY OF THE SCHOOLS OF
THEIR TERRITORY. 

"THEY, MOREOVER, HAVE THE RIGHT TO APPROVE THE BOOKS OF CHRISTIAN
DOCTRINE AND THE TEACHERS OF RELIGION, AND TO DEMAND, FOR THE SAKE OF
SAFEGUARDING RELIGION AND MORALS, THE REMOVAL OF TEACHERS AND BOOKS. 
(CANON 1381.)"  (WOYWOD, REV. STANISLAUS, THE NEW CANON LAW, UNDER
IMPRIMATUR OF MOST REV. FRANCIS J. SPELLMAN, ARCHBISHOP OF NEW YORK AND
OTHERS, 1940.) 

IT IS NO EXAGGERATION TO SAY THAT THE WHOLE HISTORIC CONFLICT IN
TEMPORAL POLICY BETWEEN THE CATHOLIC CHURCH AND NON-CATHOLICS COMES TO
A FOCUS IN THEIR RESPECTIVE SCHOOL POLICIES.  THE ROMAN CATHOLIC
CHURCH, COUNSELED BY EXPERIENCE IN MANY AGES AND MANY LANDS AND WITH
ALL SORTS AND CONDITIONS OF MEN, TAKES WHAT, FROM THE VIEWPOINT OF ITS
OWN PROGRESS AND THE SUCCESS OF ITS MISSION, IS A WISE ESTIMATE OF THE
IMPORTANCE OF EDUCATION TO RELIGION.  IT DOES NOT LEAVE THE INDIVIDUAL
TO PICK UP RELIGION BY CHANCE.  IT RELIES ON EARLY AND INDELIBLE
INDOCTRINATION IN THE FAITH AND ORDER OF THE CHURCH BY THE WORD AND
EXAMPLE OF PERSONS CONSECRATED TO THE TASK. 

OUR PUBLIC SCHOOL, IF NOT A PRODUCT OF PROTESTANTISM, AT LEAST IS
MORE CONSISTENT WITH IT THAN WITH THE CATHOLIC CULTURE AND SCHEME OF
VALUES.  IT IS A RELATIVELY RECENT DEVELOPMENT DATING FROM ABOUT 1840. 
FN1  IT IS ORGANIZED ON THE PREMISE THAT SECULAR EDUCATION CAN BE
ISOLATED FROM ALL RELIGIOUS TEACHING SO THAT THE SCHOOL CAN INCULCATE
ALL NEEDED TEMPORAL KNOWLEDGE AND ALSO MAINTAIN A STRICT AND LOFTY
NEUTRALITY AS TO RELIGION.  THE ASSUMPTION IS THAT AFTER THE INDIVIDUAL
HAS BEEN INSTRUCTED IN WORLDLY WISDOM HE WILL BE BETTER FITTED TO
CHOOSE HIS RELIGION.  WHETHER SUCH A DISJUNCTION IS POSSIBLE, AND IF
POSSIBLE WHETHER IT IS WISE, ARE QUESTIONS I NEED NOT TRY TO ANSWER. 

I SHOULD BE SURPRISED IF ANY CATHOLIC WOULD DENY THAT THE PAROCHIAL
SCHOOL IS A VITAL, IF NOT THE MOST VITAL, PART OF THE ROMAN CATHOLIC
CHURCH.  IF PUT TO THE CHOICE, THAT VENERABLE INSTITUTION, I SHOULD
EXPECT, WOULD FOREGO ITS WHOLE SERVICE FOR MATURE PERSONS BEFORE IT
WOULD GIVE UP EDUCATION OF THE YOUNG, AND IT WOULD BE A WISE CHOICE. 
ITS GROWTH AND COHESION, DISCIPLINE AND LOYALTY, SPRING FROM ITS
SCHOOLS.  CATHOLIC EDUCATION IS THE ROCK ON WHICH THE WHOLE STRUCTURE
RESTS, AND TO RENDER TAX AID TO ITS CHURCH SCHOOL IS INDISTINGUISHABLE
TO ME FROM RENDERING THE SAME AID TO THE CHURCH ITSELF. 

                                 III. 

IT IS OF NO IMPORTANCE IN THIS SITUATION WHETHER THE BENEFICIARY OF
THIS EXPENDITURE OF TAX-RAISED FUNDS IS PRIMARILY THE PAROCHIAL SCHOOL
AND INCIDENTALLY THE PUPIL, OR WHETHER THE AID IS DIRECTLY BESTOWED ON
THE PUPIL WITH INDIRECT BENEFITS TO THE SCHOOL.  THE STATE CANNOT
MAINTAIN A CHURCH AND IT CAN NO MORE TAX ITS CITIZENS TO FURNISH FREE
CARRIAGE TO THOSE WHO ATTEND A CHURCH.  THE PROHIBITION AGAINST
ESTABLISHMENT OF RELIGION CANNOT BE CIRCUMVENTED BY A SUBSIDY, BONUS OR
REIMBURSEMENT OF EXPENSE TO INDIVIDUALS FOR RECEIVING RELIGIOUS
INSTRUCTION AND INDOCTRINATION. 

THE COURT, HOWEVER, COMPARES THIS TO OTHER SUBSIDIES AND LOANS TO
INDIVIDUALS AND SAYS, "NOR DOES IT FOLLOW THAT A LAW HAS A PRIVATE
RATHER THAN A PUBLIC PURPOSE BECAUSE IT PROVIDES THAT TAX-RAISED FUNDS
WILL BE PAID TO REIMBURSE INDIVIDUALS ON ACCOUNT OF MONEY SPENT BY THEM
IN A WAY WHICH FURTHERS A PUBLIC PROGRAM.  SEE CARMICHAEL V. SOUTHERN
COAL & COKE CO., 301 U.S. 495, 518."  OF COURSE, THE STATE MAY PAY OUT
TAX-RAISED FUNDS TO RELIEVE PAUPERISM, BUT IT MAY NOT UNDER OUR
CONSTITUTION DO SO TO INDUCE OR REWARD PIETY.  IT MAY SPEND FUNDS TO
SECURE OLD AGE AGAINST WANT, BUT IT MAY NOT SPEND FUNDS TO SECURE
RELIGION AGAINST SKEPTICISM.  IT MAY COMPENSATE INDIVIDUALS FOR LOSS OF
EMPLOYMENT, BUT IT CANNOT COMPENSATE THEM FOR ADHERENCE TO A CREED. 

IT SEEMS TO ME THAT THE BASIC FALLACY IN THE COURT'S REASONING, WHICH
ACCOUNTS FOR ITS FAILURE TO APPLY THE PRINCIPLES IT AVOWS, IS IN
IGNORING THE ESSENTIALLY RELIGIOUS TEST BY WHICH BENEFICIARIES OF THIS
EXPENDITURE ARE SELECTED.  A POLICEMAN PROTECTS A CATHOLIC, OF COURSE -
BUT NOT BECAUSE HE IS A CATHOLIC; IT IS BECAUSE HE IS A MAN AND A
MEMBER OF OUR SOCIETY.  THE FIREMAN PROTECTS THE CHURCH SCHOOL - BUT
NOT BECAUSE IT IS A CHURCH SCHOOL; IT IS BECAUSE IT IS PROPERTY, PART
OF THE ASSETS OF OUR SOCIETY.  NEITHER THE FIREMAN NOR THE POLICEMAN
HAS TO ASK BEFORE HE RENDERS AID "IS THIS MAN OR BUILDING IDENTIFIED
WITH THE CATHOLIC CHURCH?"  BUT BEFORE THESE SCHOOL AUTHORITIES DRAW A
CHECK TO REIMBURSE FOR A STUDENT'S FARE THEY MUST ASK JUST THAT
QUESTION, AND IF THE SCHOOL IS A CATHOLIC ONE THEY MAY RENDER AID
BECAUSE IT IS SUCH, WHILE IF IT IS OF ANY OTHER FAITH OR IS RUN FOR
PROFIT, THE HELP MUST BE WITHHELD.  TO CONSIDER THE CONVERSE OF THE
COURT'S REASONING WILL BEST DISCLOSE ITS FALLACY.  THAT THERE IS NO
PARALLEL BETWEEN POLICE AND FIRE PROTECTION AND THIS PLAN OF
REIMBURSEMENT IS APPARENT FROM THE INCONGRUITY OF THE LIMITATION OF
THIS ACT IF APPLIED TO POLICE AND FIRE SERVICE.  COULD WE SUSTAIN AN
ACT THAT SAID THE POLICE SHALL PROTECT PUPILS ON THE WAY TO OR FROM
PUBLIC SCHOOLS AND CATHOLIC SCHOOLS BUT NOT WHILE GOING TO AND COMING
FROM OTHER SCHOOLS, AND FIREMEN SHALL EXTINGUISH A BLAZE IN PUBLIC OR
CATHOLIC SCHOOL BUILDINGS BUT SHALL NOT PUT OUT A BLAZE IN PROTESTANT
CHURCH SCHOOLS OR PRIVATE SCHOOLS OPERATED FOR PROFIT?  THAT IS THE
TRUE ANALOGY TO THE CASE WE HAVE BEFORE US AND I SHOULD THINK IT PRETTY
PLAIN THAT SUCH A SCHEME WOULD NOT BE VALID. 

THE COURT'S HOLDING IS THAT THIS TAXPAYER HAS NO GRIEVANCE BECAUSE
THE STATE HAS DECIDED TO MAKE THE REIMBURSEMENT A PUBLIC PURPOSE AND
THEREFORE WE ARE BOUND TO REGARD IT AS SUCH.  I AGREE THAT THIS COURT
HAS LEFT, AND ALWAYS SHOULD LEAVE TO EACH STATE, GREAT LATITUDE IN
DECIDING FOR ITSELF, IN THE LIGHT OF ITS OWN CONDITIONS, WHAT SHALL BE
PUBLIC PURPOSES IN ITS SCHEME OF THINGS.  IT MAY SOCIALIZE UTILITIES
AND ECONOMIC ENTERPRISES AND MAKE TAXPAYERS' BUSINESS OUT OF WHAT
CONVENTIONALLY HAD BEEN PRIVATE BUSINESS.  IT MAY MAKE PUBLIC BUSINESS
OF INDIVIDUAL WELFARE, HEALTH, EDUCATION, ENTERTAINMENT OR SECURITY. 
BUT IT CANNOT MAKE PUBLIC BUSINESS OF RELIGIOUS WORSHIP OR INSTRUCTION,
OR OF ATTENDANCE AT RELIGIOUS INSTITUTIONS OF ANY CHARACTER.  THERE IS
NO ANSWER TO THE PROPOSITION, MORE FULLY EXPOUNDED BY MR. JUSTICE
RUTLEDGE, THAT THE EFFECT OF THE RELIGIOUS FREEDOM AMENDMENT TO OUR
CONSTITUTION WAS TO TAKE EVERY FORM OF PROPAGATION OF RELIGION OUT OF
THE REALM OF THINGS WHICH COULD DIRECTLY OR INDIRECTLY BE MADE PUBLIC
BUSINESS AND THEREBY BE SUPPORTED IN WHOLE OR IN PART AT TAXPAYERS'
EXPENSE.  THAT IS A DIFFERENCE WHICH THE CONSTITUTION SETS UP BETWEEN
RELIGION AND ALMOST EVERY OTHER SUBJECT MATTER OF LEGISLATION, A
DIFFERENCE WHICH GOES TO THE VERY ROOT OF RELIGIOUS FREEDOM AND WHICH
THE COURT IS OVERLOOKING TODAY.  THIS FREEDOM WAS FIRST IN THE BILL OF
RIGHTS BECAUSE IT WAS FIRST IN THE FOREFATHERS' MINDS; IT WAS SET FORTH
IN ABSOLUTE TERMS, AND ITS STRENGTH IS ITS RIGIDITY.  IT WAS INTENDED
NOT ONLY TO KEEP THE STATES' HANDS OUT OF RELIGION, BUT TO KEEP
RELIGION'S HANDS OFF THE STATE, AND, ABOVE ALL, TO KEEP BITTER
RELIGIOUS CONTROVERSY OUT OF PUBLIC LIFE BY DENYING TO EVERY
DENOMINATION ANY ADVANTAGE FROM GETTING CONTROL OF PUBLIC POLICY OR THE
PUBLIC PURSE.  THOSE GREAT ENDS I CANNOT BUT THINK ARE IMMEASURABLY
COMPROMISED BY TODAY'S DECISION. 

THIS POLICY OF OUR FEDERAL CONSTITUTION HAS NEVER BEEN WHOLLY
PLEASING TO MOST RELIGIOUS GROUPS.  THEY ALL ARE QUICK TO INVOKE ITS
PROTECTIONS; THEY ALL ARE IRKED WHEN THEY FEEL ITS RESTRAINTS.  THIS
COURT HAS GONE A LONG WAY, IF NOT AN UNREASONABLE WAY, TO HOLD THAT
PUBLIC BUSINESS OF SUCH PARAMOUNT IMPORTANCE AS MAINTENANCE OF PUBLIC
ORDER, PROTECTION OF THE PRIVACY OF THE HOME, AND TAXATION MAY NOT BE
PURSUED BY A STATE IN A WAY THAT EVEN INDIRECTLY WILL INTERFERE WITH
RELIGIOUS PROSELYTING.  SEE DISSENT IN DOUGLAS V. JEANNETTE, 319 U.S.
157, 166; MURDOCK V. PENNSYLVANIA, 319 U.S. 105; MARTIN V. STRUTHERS,
319 U.S. 141; JONES V. OPELIKA, 316 U.S. 584, REVERSED ON REHEARING,
319 U.S. 103. 

BUT WE CANNOT HAVE IT BOTH WAYS.  RELIGIOUS TEACHING CANNOT BE A
PRIVATE AFFAIR WHEN THE STATE SEEKS TO IMPOSE REGULATIONS WHICH
INFRINGE ON IT INDIRECTLY, AND A PUBLIC AFFAIR WHEN IT COMES TO TAXING
CITIZENS OF ONE FAITH TO AID ANOTHER, OR THOSE OF NO FAITH TO AID ALL. 
IF THESE PRINCIPLES SEEM HARSH IN PROHIBITING AID TO CATHOLIC
EDUCATION, IT MUST NOT BE FORGOTTEN THAT IT IS THE SAME CONSTITUTION
THAT ALONE ASSURES CATHOLICS THE RIGHT TO MAINTAIN THESE SCHOOLS AT ALL
WHEN PREDOMINANT LOCAL SENTIMENT WOULD FORBID THEM.  PIERCE V. SOCIETY
OF SISTERS, 268 U.S. 510.  NOR SHOULD I THINK THAT THOSE WHO HAVE DONE
SO WELL WITHOUT THIS AID WOULD WANT TO SEE THIS SEPARATION BETWEEN
CHURCH AND STATE BROKEN DOWN.  IF THE STATE MAY AID THESE RELIGIOUS
SCHOOLS, IT MAY THEREFORE REGULATE THEM.  MANY GROUPS HAVE SOUGHT AID
FROM TAX FUNDS ONLY TO FIND THAT IT CARRIED POLITICAL CONTROLS WITH IT.
INDEED THIS COURT HAS DECLARED THAT "IT IS HARDLY LACK OF DUE PROCESS
FOR THE GOVERNMENT TO REGULATE THAT WHICH IT SUBSIDIZES."  WICKARD V.
FILBURN, 317 U.S. 111, 131. 

BUT IN ANY EVENT, THE GREAT PURPOSES OF THE CONSTITUTION DO NOT
DEPEND ON THE APPROVAL OR CONVENIENCE OF THOSE THEY RESTRAIN.  I CANNOT
READ THE HISTORY OF THE STRUGGLE TO SEPARATE POLITICAL FROM
ECCLESIASTICAL AFFAIRS, WELL SUMMARIZED IN THE OPINION OF MR. JUSTICE
RUTLEDGE IN WHICH I GENERALLY CONCUR, WITHOUT A CONVICTION THAT THE
COURT TODAY IS UNCONSCIOUSLY GIVING THE CLOCK'S HANDS A BACKWARD TURN. 

FN1  SEE CUBBERLEY, PUBLIC EDUCATION IN THE UNITED STATES (1934) CH.
VI; KNIGHT, EDUCATION IN THE UNITED STATES (1941) CH. VIII. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
JACKSON AND MR. JUSTICE BURTON AGREE, DISSENTING. 

"CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION,
OR PROHIBITING THE FREE EXERCISE THEREOF  ..."  U.S. CONST., AMEND. I. 

"WELL AWARE THAT ALMIGHTY GOD HATH CREATED THE MIND FREE; ...  THAT
TO COMPEL A MAN TO FURNISH CONTRIBUTIONS OF MONEY FOR THE PROPAGATION
OF OPINIONS WHICH HE DISBELIEVES, IS SINFUL AND TYRANNICAL; ... 

"WE, THE GENERAL ASSEMBLY, DO ENACT, THAT NO MAN SHALL BE COMPELLED
TO FREQUENT OR SUPPORT ANY RELIGIOUS WORSHIP, PLACE, OR MINISTRY
WHATSOEVER, NOR SHALL BE ENFORCED, RESTRAINED, MOLESTED, OR BURTHENED
IN HIS BODY OR GOODS, NOR SHALL OTHERWISE SUFFER, ON ACCOUNT OF HIS
RELIGIOUS OPINIONS OR BELIEF  ..."  FN1 

I CANNOT BELIEVE THAT THE GREAT AUTHOR OF THOSE WORDS, OR THE MEN WHO
MADE THEM LAW, COULD HAVE JOINED IN THIS DECISION.  NEITHER SO HIGH NOR
SO IMPREGNABLE TODAY AS YESTERDAY IS THE WALL RAISED BETWEEN CHURCH AND
STATE BY VIRGINIA'S GREAT STATUTE OF RELIGIOUS FREEDOM AND THE FIRST
AMENDMENT, NOW MADE APPLICABLE TO ALL THE STATES BY THE FOURTEENTH. 
FN2  NEW JERSEY'S STATUTE SUSTAINED IS THE FIRST, IF INDEED IT IS NOT
THE SECOND BREACH TO BE MADE BY THIS COURT'S ACTION.  THAT A THIRD, AND
A FOURTH, AND STILL OTHERS WILL BE ATTEMPTED, WE MAY BE SURE.  FOR JUST
AS COCHRAN V. BOARD OF EDUCATION, 281 U.S. 370, HAS OPENED THE WAY BY
OBLIQUE RULING  FN3  FOR THIS DECISION, SO WILL THE TWO MAKE WIDER THE
BREACH FOR A THIRD.  THUS WITH TIME THE MOST SOLID FREEDOM STEADILY
GIVES WAY BEFORE CONTINUING CORROSIVE DECISION. 

THIS CASE FORCES US TO DETERMINE SQUARELY FOR THE FIRST TIME  FN4
WHAT WAS "AN ESTABLISHMENT OF RELIGION" IN THE FIRST AMENDMENT'S
CONCEPTION; AND BY THAT MEASURE TO DECIDE WHETHER NEW JERSEY'S ACTION
VIOLATES ITS COMMAND.  THE FACTS MAY BE STATED SHORTLY, TO GIVE SETTING
AND COLOR TO THE CONSTITUTIONAL PROBLEM. 

BY STATUTE NEW JERSEY HAS AUTHORIZED LOCAL BOARDS OF EDUCATION TO
PROVIDE FOR THE TRANSPORTATION OF CHILDREN "TO AND FROM SCHOOL OTHER
THAN A PUBLIC SCHOOL" EXCEPT ONE OPERATED FOR PROFIT WHOLLY OR IN PART,
OVER ESTABLISHED PUBLIC SCHOOL ROUTES, OR BY OTHER MEANS WHEN THE CHILD
LIVES "REMOTE FROM ANY SCHOOL."  FN5  THE SCHOOL BOARD OF EWING
TOWNSHIP HAS PROVIDED BY RESOLUTION FOR "THE TRANSPORTATION OF PUPILS
OF EWING TO THE TRENTON AND PENNINGTON HIGH SCHOOLS AND CATHOLIC
SCHOOLS BY WAY OF PUBLIC CARRIER  ..."  FN6 

NAMED PARENTS HAVE PAID THE COST OF PUBLIC CONVEYANCE OF THEIR
CHILDREN FROM THEIR HOMES IN EWING TO THREE PUBLIC HIGH SCHOOLS AND
FOUR PAROCHIAL SCHOOLS OUTSIDE THE DISTRICT N7.  SEMIANNUALLY THE BOARD
HAS REIMBURSED THE PARENTS FROM PUBLIC SCHOOL FUNDS RAISED BY GENERAL
TAXATION.  RELIGION IS TAUGHT AS PART OF THE CURRICULUM IN EACH OF THE
FOUR PRIVATE SCHOOLS, AS APPEARS AFFIRMATIVELY BY THE TESTIMONY OF THE
SUPERINTENDENT OF PAROCHIAL SCHOOLS IN THE DIOCESE OF TRENTON. 

THE COURT OF ERRORS AND APPEALS OF NEW JERSEY, REVERSING THE SUPREME
COURT'S DECISION, 132 N.J.L. 98, 39 A.2D 75, HAS HELD THE EWING BOARD'S
ACTION NOT IN CONTRAVENTION OF THE STATE CONSTITUTION OR STATUTES OR OF
THE FEDERAL CONSTITUTION.  133 N.J.L. 350, 44 A.2D 333.  WE HAVE TO
CONSIDER ONLY WHETHER THIS RULING ACCORDS WITH THE PROHIBITION OF THE
FIRST AMENDMENT IMPLIED IN THE DUE PROCESS CLAUSE OF THE FOURTEENTH. 

                                  I. 

NOT SIMPLY AN ESTABLISHED CHURCH, BUT ANY LAW RESPECTING AN
ESTABLISHMENT OF RELIGION IS FORBIDDEN.  THE AMENDMENT WAS BROADLY BUT
NOT LOOSELY PHRASED.  IT IS THE COMPACT AND EXACT SUMMATION OF ITS
AUTHOR'S VIEWS FORMED DURING HIS LONG STRUGGLE FOR RELIGIOUS FREEDOM. 
IN MADISON'S OWN WORDS CHARACTERIZING JEFFERSON'S BILL FOR ESTABLISHING
RELIGIOUS FREEDOM, THE GUARANTY HE PUT IN OUR NATIONAL CHARTER, LIKE
THE BILL HE PILOTED THROUGH THE VIRGINIA ASSEMBLY, WAS "A MODEL OF
TECHNICAL PRECISION, AND PERSPICUOUS BREVITY."  FN8  MADISON COULD NOT
HAVE CONFUSED "CHURCH" AND "RELIGION," OR "AN ESTABLISHED CHURCH" AND
"AN ESTABLISHMENT OF RELIGION."    THE AMENDMENT'S PURPOSE WAS NOT TO
STRIKE MERELY AT THE OFFICIAL ESTABLISHMENT OF A SINGLE SECT, CREED OR
RELIGION, OUTLAWING ONLY A FORMAL RELATION SUCH AS HAD PREVAILED IN
ENGLAND AND SOME OF THE COLONIES.  NECESSARILY IT WAS TO UPROOT ALL
SUCH RELATIONSHIPS.  BUT THE OBJECT WAS BROADER THAN SEPARATING CHURCH
AND STATE IN THIS NARROW SENSE.  IT WAS TO CREATE A COMPLETE AND
PERMANENT SEPARATION OF THE SPHERES OF RELIGIOUS ACTIVITY AND CIVIL
AUTHORITY BY COMPREHENSIVELY FORBIDDING EVERY FORM OF PUBLIC AID OR
SUPPORT FOR RELIGION.  IN PROOF THE AMENDMENT'S WORDING AND HISTORY
UNITE WITH THIS COURT'S CONSISTENT UTTERANCES WHENEVER ATTENTION HAS
BEEN FIXED DIRECTLY UPON THE QUESTION. 

"RELIGION" APPEARS ONLY ONCE IN THE AMENDMENT.  BUT THE WORD GOVERNS
TWO PROHIBITIONS AND GOVERNS THEM ALIKE.  IT DOES NOT HAVE TWO
MEANINGS, ONE NARROW TO FORBID "AN ESTABLISHMENT" AND ANOTHER, MUCH
BROADER, FOR SECURING "THE FREE EXERCISE THEREOF."  "THEREOF" BRINGS
DOWN "RELIGION" WITH ITS ENTIRE AND EXACT CONTENT, NO MORE AND NO LESS,
FROM THE FIRST INTO THE SECOND GUARANTY, SO THAT CONGRESS AND NOW THE
STATES ARE AS BROADLY RESTRICTED CONCERNING THE ONE AS THEY ARE
REGARDING THE OTHER. 

NO ONE WOULD CLAIM TODAY THAT THE AMENDMENT IS CONSTRICTED, IN
"PROHIBITING THE FREE EXERCISE" OF RELIGION, TO SECURING THE FREE
EXERCISE OF SOME FORMAL OR CREEDAL OBSERVANCE, OF ONE SECT OR OF MANY. 
IT SECURES ALL FORMS OF RELIGIOUS EXPRESSION, CREEDAL, SECTARIAN OR
NONSECTARIAN, WHEREVER AND HOWEVER TAKING PLACE, EXCEPT CONDUCT WHICH
TRENCHES UPON THE LIKE FREEDOMS OF OTHERS OR CLEARLY AND PRESENTLY
ENDANGERS THE COMMUNITY'S GOOD ORDER AND SECURITY.  FN9  FOR THE
PROTECTIVE PURPOSES OF THIS PHASE OF THE BASIC FREEDOM, STREET
PREACHING, ORAL OR BY DISTRIBUTION OF LITERATURE, HAS BEEN GIVEN "THE
SAME HIGH ESTATE UNDER THE FIRST AMENDMENT AS  ...  WORSHIP IN THE
CHURCHES AND PREACHING FROM THE PULPITS."  FN10  AND ON THIS BASIS
PARENTS HAVE BEEN HELD ENTITLED TO SEND THEIR CHILDREN TO PRIVATE,
RELIGIOUS SCHOOLS.  PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510. 
ACCORDINGLY, DAILY RELIGIOUS EDUCATION COMMINGLED WITH SECULAR IS
"RELIGION" WITHIN THE GUARANTY'S COMPREHENSIVE SCOPE.  SO ARE RELIGIOUS
TRAINING AND TEACHING IN WHATEVER FORM.  THE WORD CONNOTES THE BROADEST
CONTENT, DETERMINED NOT BY THE FORM OR FORMALITY OF THE TEACHING OR
WHERE IT OCCURS, BUT BY ITS ESSENTIAL NATURE REGARDLESS OF THOSE
DETAILS. 

"RELIGION" HAS THE SAME BROAD SIGNIFICANCE IN THE TWIN PROHIBITION
CONCERNING "AN ESTABLISHMENT."  THE AMENDMENT WAS NOT DUPLICITOUS. 
"RELIGION" AND "ESTABLISHMENT" WERE NOT USED IN ANY FORMAL OR TECHNICAL
SENSE.  THE PROHIBITION BROADLY FORBIDS STATE SUPPORT, FINANCIAL OR
OTHER, OF RELIGION IN ANY GUISE, FORM OR DEGREE.  IT OUTLAWS ALL USE OF
PUBLIC FUNDS FOR RELIGIOUS PURPOSES. 

       II. 

NO PROVISION OF THE CONSTITUTION IS MORE CLOSELY TIED TO OR GIVEN
CONTENT BY ITS GENERATING HISTORY THAN THE RELIGIOUS CLAUSE OF THE
FIRST AMENDMENT.  IT IS AT ONCE THE REFINED PRODUCT AND THE TERSE
SUMMATION OF THAT HISTORY.  THE HISTORY INCLUDES NOT ONLY MADISON'S
AUTHORSHIP AND THE PROCEEDINGS BEFORE THE FIRST CONGRESS, BUT ALSO THE
LONG AND INTENSIVE STRUGGLE FOR RELIGIOUS FREEDOM IN AMERICA, MORE
ESPECIALLY IN VIRGINIA,  FN11  OF WHICH THE AMENDMENT WAS THE DIRECT
CULMINATION.  FN12  IN THE DOCUMENTS OF THE TIMES, PARTICULARLY OF
MADISON, WHO WAS LEADER IN THE VIRGINIA STRUGGLE BEFORE HE BECAME THE
AMENDMENT'S SPONSOR, BUT ALSO IN THE WRITINGS OF JEFFERSON AND OTHERS
AND IN THE ISSUES WHICH ENGENDERED THEM IS TO BE FOUND IRREFUTABLE
CONFIRMATION OF THE AMENDMENT'S SWEEPING CONTENT. 

FOR MADISON, AS ALSO FOR JEFFERSON, RELIGIOUS FREEDOM WAS THE CRUX OF
THE STRUGGLE FOR FREEDOM IN GENERAL.  REMONSTRANCE, PAR. 15, APPENDIX
HERETO.  MADISON WAS COAUTHOR WITH GEORGE MASON OF THE RELIGIOUS CLAUSE
IN VIRGINIA'S GREAT DECLARATION OF RIGHTS OF 1776.  HE IS CREDITED WITH
CHANGING IT FROM A MERE STATEMENT OF THE PRINCIPLE OF TOLERANCE TO THE
FIRST OFFICIAL LEGISLATIVE PRONOUNCEMENT THAT FREEDOM OF CONSCIENCE AND
RELIGION ARE INHERENT RIGHTS OF THE INDIVIDUAL.  FN13 HE SOUGHT ALSO TO
HAVE THE DECLARATION EXPRESSLY CONDEMN THE EXISTING VIRGINIA
ESTABLISHMENT.  FN14  BUT THE FORCES SUPPORTING IT WERE THEN TOO
STRONG. 

ACCORDINGLY MADISON YIELDED ON THIS PHASE BUT NOT FOR LONG.  AT ONCE
HE RESUMED THE FIGHT, CONTINUING IT BEFORE SUCCEEDING LEGISLATIVE
SESSIONS.  AS A MEMBER OF THE GENERAL ASSEMBLY IN 1779 HE THREW HIS
FULL WEIGHT BEHIND JEFFERSON'S HISTORIC BILL FOR ESTABLISHING RELIGIOUS
FREEDOM.  THAT BILL WAS A PRIME PHASE OF JEFFERSON'S BROAD PROGRAM OF
DEMOCRATIC REFORM UNDERTAKEN ON HIS RETURN FROM THE CONTINENTAL
CONGRESS IN 1776 AND SUBMITTED FOR THE GENERAL ASSEMBLY'S CONSIDERATION
IN 1779 AS HIS PROPOSED REVISED VIRGINIA CODE.  FN15  WITH JEFFERSON'S
DEPARTURE FOR EUROPE IN 1784, MADISON BECAME THE BILL'S PRIME SPONSOR. 
FN16  ENACTMENT FAILED IN SUCCESSIVE LEGISLATURES FROM ITS INTRODUCTION
IN JUNE, 1779, UNTIL ITS ADOPTION IN JANUARY, 1786.  BUT DURING ALL
THIS TIME THE FIGHT FOR RELIGIOUS FREEDOM MOVED FORWARD IN VIRGINIA ON
VARIOUS FRONTS WITH GROWING INTENSITY.  MADISON LED THROUGHOUT, AGAINST
PATRICK HENRY'S POWERFUL OPPOSING LEADERSHIP UNTIL HENRY WAS ELECTED
GOVERNOR IN NOVEMBER, 1784. 

THE CLIMAX CAME IN THE LEGISLATIVE STRUGGLE OF 1784-1785 OVER THE
ASSESSMENT BILL.  SEE SUPPLEMENTAL APPENDIX HERETO.  THIS WAS NOTHING
MORE NOR LESS THAN A TAXING MEASURE FOR THE SUPPORT OF RELIGION,
DESIGNED TO REVIVE THE PAYMENT OF TITHES SUSPENDED SINCE 1777.  SO LONG
AS IT SINGLED OUT A PARTICULAR SECT FOR PREFERENCE IT INCURRED THE
ACTIVE AND GENERAL HOSTILITY OF DISSENTIENT GROUPS.  IT WAS BROADENED
TO INCLUDE THEM, WITH THE RESULT THAT SOME SUBSIDED TEMPORARILY IN
THEIR OPPOSITION.  FN17  AS ALTERED, THE BILL GAVE TO EACH TAXPAYER THE
PRIVILEGE OF DESIGNATING WHICH CHURCH SHOULD RECEIVE HIS SHARE OF THE
TAX.  IN DEFAULT OF DESIGNATION THE LEGISLATURE APPLIED IT TO PIOUS
USES.  FN18  BUT WHAT IS OF THE UTMOST SIGNIFICANCE HERE, "IN ITS FINAL
FORM THE BILL LEFT THE TAXPAYER THE OPTION OF GIVING HIS TAX TO
EDUCATION."  FN19 

MADISON WAS UNYIELDING AT ALL TIMES, OPPOSING WITH ALL HIS VIGOR THE
GENERAL AND NONDISCRIMINATORY AS HE HAD THE EARLIER PARTICULAR AND
DISCRIMINATORY ASSESSMENTS PROPOSED.  THE MODIFIED ASSESSMENT BILL
PASSED SECOND READING IN DECEMBER, 1784, AND WAS ALL BUT ENACTED. 
MADISON AND HIS FOLLOWERS, HOWEVER, MANEUVERED DEFERMENT OF FINAL
CONSIDERATION UNTIL NOVEMBER, 1785.  AND BEFORE THE ASSEMBLY RECONVENED
IN THE FALL HE ISSUED HIS HISTORIC MEMORIAL AND REMONSTRANCE.  FN20 

THIS IS MADISON'S COMPLETE, THOUGH NOT HIS ONLY, INTERPRETATION OF
RELIGIOUS LIBERTY.  FN21  IT IS A BROADSIDE ATTACK UPON ALL FORMS OF
"ESTABLISHMENT" OF RELIGION, BOTH GENERAL AND PARTICULAR,
NONDISCRIMINATORY OR SELECTIVE.  REFLECTING NOT ONLY THE MANY
LEGISLATIVE CONFLICTS OVER THE ASSESSMENT BILL AND THE BILL FOR
ESTABLISHING RELIGIOUS FREEDOM BUT ALSO, FOR EXAMPLE, THE STRUGGLES FOR
RELIGIOUS INCORPORATIONS AND THE CONTINUED MAINTENANCE OF THE GLEBES,
THE REMONSTRANCE IS AT ONCE THE MOST CONCISE AND THE MOST ACCURATE
STATEMENT OF THE VIEWS OF THE FIRST AMENDMENT'S AUTHOR CONCERNING WHAT
IS "AN ESTABLISHMENT OF RELIGION."  BECAUSE IT BEHOOVES US IN THE
DIMMING DISTANCE OF TIME NOT TO LOSE SIGHT OF WHAT HE AND HIS COWORKERS
HAD IN MIND WHEN, BY A SINGLE SWEEPING STROKE OF THE PEN, THEY FORBADE
AN ESTABLISHMENT OF RELIGION AND SECURED ITS FREE EXERCISE, THE TEXT OF
THE REMONSTRANCE IS APPENDED AT THE END OF THIS OPINION FOR ITS WIDER
CURRENT REFERENCE, TOGETHER WITH A COPY OF THE BILL AGAINST WHICH IT
WAS DIRECTED. 

THE REMONSTRANCE, STIRRING UP A STORM OF POPULAR PROTEST, KILLED THE
ASSESSMENT BILL.  FN22  IT COLLAPSED IN COMMITTEE SHORTLY BEFORE
CHRISTMAS, 1785.  WITH THIS, THE WAY WAS CLEARED AT LAST FOR ENACTMENT
OF JEFFERSON'S BILL FOR ESTABLISHING RELIGIOUS FREEDOM.  MADISON
PROMPTLY DROVE IT THROUGH IN JANUARY OF 1786, SEVEN YEARS FROM THE TIME
IT WAS FIRST INTRODUCED.  THIS DUAL VICTORY SUBSTANTIALLY ENDED THE
FIGHT OVER ESTABLISHMENTS, SETTLING THE ISSUE AGAINST THEM.  SEE NOTE
33. 

THE NEXT YEAR MADISON BECAME A MEMBER OF THE CONSTITUTIONAL
CONVENTION.  ITS WORK DONE, HE FOUGHT VALIANTLY TO SECURE THE
RATIFICATION OF ITS GREAT PRODUCT IN VIRGINIA AS ELSEWHERE, AND NOWHERE
ELSE MORE EFFECTIVELY.  FN23  MADISON WAS CERTAIN IN HIS OWN MIND THAT
UNDER THE CONSTITUTION "THERE IS NOT A SHADOW OF RIGHT IN THE GENERAL
GOVERNMENT TO INTERMEDDLE WITH RELIGION"  FN24  AND THAT "THIS SUBJECT
IS, FOR THE HONOR OF AMERICA, PERFECTLY FREE AND UNSHACKLED.  THE
GOVERNMENT HAS NO JURISDICTION OVER IT  ..."  FN25  NEVERTHELESS HE
PLEDGED THAT HE WOULD WORK FOR A BILL OF RIGHTS, INCLUDING A SPECIFIC
GUARANTY OF RELIGIOUS FREEDOM, AND VIRGINIA, WITH OTHER STATES,
RATIFIED THE CONSTITUTION ON THIS ASSURANCE.  FN26 

RATIFICATION THUS ACCOMPLISHED, MADISON WAS SENT TO THE FIRST
CONGRESS.  THERE HE WENT AT ONCE ABOUT PERFORMING HIS PLEDGE TO
ESTABLISH FREEDOM FOR THE NATION AS HE HAD DONE IN VIRGINIA.  WITHIN A
LITTLE MORE THAN THREE YEARS FROM HIS LEGISLATIVE VICTORY AT HOME HE
HAD PROPOSED AND SECURED THE SUBMISSION AND RATIFICATION OF THE FIRST
AMENDMENT AS THE FIRST ARTICLE OF OUR BILL OF RIGHTS.  FN27 

ALL THE GREAT INSTRUMENTS OF THE VIRGINIA STRUGGLE FOR RELIGIOUS
LIBERTY THUS BECAME WARP AND WOOF OF OUR CONSTITUTIONAL TRADITION, NOT
SIMPLY BY THE COURSE OF HISTORY, BUT BY THE COMMON UNIFYING FORCE OF
MADISON'S LIFE, THOUGHT AND SPONSORSHIP.  HE EPITOMIZED THE WHOLE OF
THAT TRADITION IN THE AMENDMENT'S COMPACT, BUT NONETHELESS
COMPREHENSIVE, PHRASING. 

AS THE REMONSTRANCE DISCLOSES THROUGHOUT, MADISON OPPOSED EVERY FORM
AND DEGREE OF OFFICIAL RELATION BETWEEN RELIGION AND CIVIL AUTHORITY. 
FOR HIM RELIGION WAS A WHOLLY PRIVATE MATTER BEYOND THE SCOPE OF CIVIL
POWER EITHER TO RESTRAIN OR TO SUPPORT.  FN28  DENIAL OR ABRIDGMENT OF
RELIGIOUS FREEDOM WAS A VIOLATION OF RIGHTS BOTH OF CONSCIENCE AND OF
NATURAL EQUALITY.  STATE AID WAS NO LESS OBNOXIOUS OR DESTRUCTIVE TO
FREEDOM AND TO RELIGION ITSELF THAN OTHER FORMS OF STATE INTERFERENCE. 
"ESTABLISHMENT" AND "FREE EXERCISE" WERE CORRELATIVE AND COEXTENSIVE
IDEAS, REPRESENTING ONLY DIFFERENT FACETS OF THE SINGLE GREAT AND
FUNDAMENTAL FREEDOM.  THE REMONSTRANCE, FOLLOWING THE VIRGINIA
STATUTE'S EXAMPLE, REFERRED TO THE HISTORY OF RELIGIOUS CONFLICTS AND
THE EFFECTS OF ALL SORTS OF ESTABLISHMENTS, CURRENT AND HISTORICAL, TO
SUPPRESS RELIGION'S FREE EXERCISE.  WITH JEFFERSON, MADISON BELIEVED
THAT TO TOLERATE ANY FRAGMENT OF ESTABLISHMENT WOULD BE BY SO MUCH TO
PERPETUATE RESTRAINT UPON THAT FREEDOM.  HENCE HE SOUGHT TO TEAR OUT
THE INSTITUTION NOT PARTIALLY BUT ROOT AND BRANCH, AND TO BAR ITS
RETURN FOREVER. 

IN NO PHASE WAS HE MORE UNRELENTINGLY ABSOLUTE THAN IN OPPOSING STATE
SUPPORT OR AID BY TAXATION.  NOT EVEN "THREE PENCE" CONTRIBUTION WAS
THUS TO BE EXACTED FROM ANY CITIZEN FOR SUCH A PURPOSE.  REMONSTRANCE,
PAR. 3.  FN29  TITHES HAD BEEN THE LIFEBLOOD OF ESTABLISHMENT BEFORE
AND AFTER OTHER COMPULSIONS DISAPPEARED.  MADISON AND HIS COWORKERS
MADE NO EXCEPTIONS OR ABRIDGMENTS TO THE COMPLETE SEPARATION THEY
CREATED.  THEIR OBJECTION WAS NOT TO SMALL TITHES.  IT WAS TO ANY
TITHES WHATSOEVER.  "IF IT WERE LAWFUL TO IMPOSE A SMALL TAX FOR
RELIGION, THE ADMISSION WOULD PAVE THE WAY FOR OPPRESSIVE LEVIES." 
FN30  NOT THE AMOUNT BUT "THE PRINCIPLE OF ASSESSMENT WAS WRONG."  AND
THE PRINCIPLE WAS AS MUCH TO PREVENT "THE INTERFERENCE OF LAW IN
RELIGION" AS TO RESTRAIN RELIGIOUS INTERVENTION IN POLITICAL MATTERS. 
FN31  IN THIS FIELD THE AUTHORS OF OUR FREEDOM WOULD NOT TOLERATE "THE
FIRST EXPERIMENT ON OUR LIBERTIES" OR "WAIT TILL USURPED POWER HAD
STRENGTHENED ITSELF BY EXERCISE, AND ENTANGLED THE QUESTION IN
PRECEDENTS."  REMONSTRANCE, PAR. 3.  NOR SHOULD WE. 

IN VIEW OF THIS HISTORY NO FURTHER PROOF IS NEEDED THAT THE AMENDMENT
FORBIDS ANY APPROPRIATION, LARGE OR SMALL, FROM PUBLIC FUNDS TO AID OR
SUPPORT ANY AND ALL RELIGIOUS EXERCISES.  BUT IF MORE WERE CALLED FOR,
THE DEBATES IN THE FIRST CONGRESS AND THIS COURT'S CONSISTENT
EXPRESSIONS, WHENEVER IT HAS TOUCHED ON THE MATTER DIRECTLY,  FN32
SUPPLY IT. 

BY CONTRAST WITH THE VIRGINIA HISTORY, THE CONGRESSIONAL DEBATES ON
CONSIDERATION OF THE AMENDMENT REVEAL ONLY SPARSE DISCUSSION,
REFLECTING THE FACT THAT THE ESSENTIAL ISSUES HAD BEEN SETTLED.  FN33
INDEED THE MATTER HAD BECOME SO WELL UNDERSTOOD AS TO HAVE BEEN TAKEN
FOR GRANTED IN ALL BUT FORMAL PHRASING.  HENCE, THE ONLY ENLIGHTENING
REFERENCE SHOWS CONCERN, NOT TO PRESERVE ANY POWER TO USE PUBLIC FUNDS
IN AID OF RELIGION, BUT TO PREVENT THE AMENDMENT FROM OUTLAWING PRIVATE
GIFTS INADVERTENTLY BY VIRTUE OF THE BREADTH OF ITS WORDING.  FN34  IN
THE MARGIN ARE NOTED ALSO THE PRINCIPAL DECISIONS IN WHICH EXPRESSIONS
OF THIS COURT CONFIRM THE AMENDMENT'S BROAD PROHIBITION.  FN35

          III. 

COMPULSORY ATTENDANCE UPON RELIGIOUS EXERCISES WENT OUT EARLY IN THE
PROCESS OF SEPARATING CHURCH AND STATE, TOGETHER WITH FORCED OBSERVANCE
OF RELIGIOUS FORMS AND CEREMONIES.  FN36  TEST OATHS AND RELIGIOUS
QUALIFICATION FOR OFFICE FOLLOWED LATER.  FN37  THESE THINGS NONE
DEVOTED TO OUR GREAT TRADITION OF RELIGIOUS LIBERTY WOULD THINK OF
BRINGING BACK.  HENCE TODAY, APART FROM EFFORTS TO INJECT RELIGIOUS
TRAINING OR EXERCISES AND SECTARIAN ISSUES INTO THE PUBLIC SCHOOLS, THE
ONLY SERIOUS SURVIVING THREAT TO MAINTAINING THAT COMPLETE AND
PERMANENT SEPARATION OF RELIGION AND CIVIL POWER WHICH THE FIRST
AMENDMENT COMMANDS IS THROUGH USE OF THE TAXING POWER TO SUPPORT
RELIGION, RELIGIOUS ESTABLISHMENTS, OR ESTABLISHMENTS HAVING A
RELIGIOUS FOUNDATION WHATEVER THEIR FORM OR SPECIAL RELIGIOUS
FUNCTION.    DOES NEW JERSEY'S ACTION FURNISH SUPPORT FOR RELIGION BY
USE OF THE TAXING POWER?  CERTAINLY IT DOES, IF THE TEST REMAINS
UNDILUTED AS JEFFERSON AND MADISON MADE IT, THAT MONEY TAKEN BY
TAXATION FROM ONE IS NOT TO BE USED OR GIVEN TO SUPPORT ANOTHER'S
RELIGIOUS TRAINING OR BELIEF, OR INDEED ONE'S OWN.  FN38  TODAY AS THEN
THE FURNISHING OF "CONTRIBUTIONS OF MONEY FOR THE PROPAGATION OF
OPINIONS WHICH HE DISBELIEVES" IS THE FORBIDDEN EXACTION; AND THE
PROHIBITION IS ABSOLUTE FOR WHATEVER MEASURE BRINGS THAT CONSEQUENCE
AND WHATEVER AMOUNT MAY BE SOUGHT OR GIVEN TO THAT END. 

THE FUNDS USED HERE WERE RAISED BY TAXATION.  THE COURT DOES NOT
DISPUTE, NOR COULD IT, THAT THEIR USE DOES IN FACT GIVE AID AND
ENCOURAGEMENT TO RELIGIOUS INSTRUCTION.  IT ONLY CONCLUDES THAT THIS
AID IS NOT "SUPPORT" IN LAW.  BUT MADISON AND JEFFERSON WERE CONCERNED
WITH AID AND SUPPORT IN FACT, NOT AS A LEGAL CONCLUSION "ENTANGLED IN
PRECEDENTS."  REMONSTRANCE, PAR. 3.  HERE PARENTS PAY MONEY TO SEND
THEIR CHILDREN TO PAROCHIAL SCHOOLS AND FUNDS RAISED BY TAXATION ARE
USED TO REIMBURSE THEM.  THIS NOT ONLY HELPS THE CHILDREN TO GET TO
SCHOOL AND THE PARENTS TO SEND THEM.  IT AIDS THEM IN A SUBSTANTIAL WAY
TO GET THE VERY THING WHICH THEY ARE SENT TO THE PARTICULAR SCHOOL TO
SECURE, NAMELY, RELIGIOUS TRAINING AND TEACHING. 

BELIEVERS OF ALL FAITHS, AND OTHERS WHO DO NOT EXPRESS THEIR FEELING
TOWARD ULTIMATE ISSUES OF EXISTENCE IN ANY CREEDAL FORM, PAY THE NEW
JERSEY TAX.  WHEN THE MONEY SO RAISED IS USED TO PAY FOR TRANSPORTATION
TO RELIGIOUS SCHOOLS, THE CATHOLIC TAXPAYER TO THE EXTENT OF HIS
PROPORTIONATE SHARE PAYS FOR THE TRANSPORTATION OF LUTHERAN, JEWISH AND
OTHERWISE RELIGIOUSLY AFFILIATED CHILDREN TO RECEIVE THEIR NON-CATHOLIC
RELIGIOUS INSTRUCTION.  THEIR PARENTS LIKEWISE PAY PROPORTIONATELY FOR
THE TRANSPORTATION OF CATHOLIC CHILDREN TO RECEIVE CATHOLIC
INSTRUCTION.  EACH THUS CONTRIBUTES TO "THE PROPAGATION OF OPINIONS
WHICH HE DISBELIEVES" IN SO FAR AS THEIR RELIGIONS DIFFER, AS DO OTHERS
WHO ACCEPT NO CREED WITHOUT REGARD TO THOSE DIFFERENCES.  EACH THUS
PAYS TAXES ALSO TO SUPPORT THE TEACHING OF HIS OWN RELIGION, AN
EXACTION EQUALLY FORBIDDEN SINCE IT DENIES "THE COMFORTABLE LIBERTY" OF
GIVING ONE'S CONTRIBUTION TO THE PARTICULAR AGENCY OF INSTRUCTION HE
APPROVES.  FN39 

NEW JERSEY'S ACTION THEREFORE EXACTLY FITS THE TYPE OF EXACTION AND
THE KIND OF EVIL AT WHICH MADISON AND JEFFERSON STRUCK.  UNDER THE TEST
THEY FRAMED IT CANNOT BE SAID THAT THE COST OF TRANSPORTATION IS NO
PART OF THE COST OF EDUCATION OR OF THE RELIGIOUS INSTRUCTION GIVEN. 
THAT IT IS A SUBSTANTIAL AND A NECESSARY ELEMENT IS SHOWN MOST PLAINLY
BY THE CONTINUING AND INCREASING DEMAND FOR THE STATE TO ASSUME IT.
NOR IS THERE PRETENSE THAT IT RELATES ONLY TO THE SECULAR INSTRUCTION
GIVEN IN RELIGIOUS SCHOOLS OR THAT ANY ATTEMPT IS OR COULD BE MADE
TOWARD ALLOCATING PROPORTIONAL SHARES AS BETWEEN THE SECULAR AND THE
RELIGIOUS INSTRUCTION.  IT IS PRECISELY BECAUSE THE INSTRUCTION IS
RELIGIOUS AND RELATES TO A PARTICULAR FAITH, WHETHER ONE OR ANOTHER,
THAT PARENTS SEND THEIR CHILDREN TO RELIGIOUS SCHOOLS UNDER THE PIERCE
DOCTRINE.  AND THE VERY PURPOSE OF THE STATE'S CONTRIBUTION IS TO
DEFRAY THE COST OF CONVEYING THE PUPIL TO THE PLACE WHERE HE WILL
RECEIVE NOT SIMPLY SECULAR, BUT ALSO AND PRIMARILY RELIGIOUS, TEACHING
AND GUIDANCE. 

INDEED THE VIEW IS SINCERELY AVOWED BY MANY OF VARIOUS FAITHS,  FN40
THAT THE BASIC PURPOSE OF ALL EDUCATION IS OR SHOULD BE RELIGIOUS, THAT
THE SECULAR CANNOT BE AND SHOULD NOT BE SEPARATED FROM THE RELIGIOUS
PHASE AND EMPHASIS.  HENCE, THE INADEQUACY OF PUBLIC OR SECULAR
EDUCATION AND THE NECESSITY FOR SENDING THE CHILD TO A SCHOOL WHERE
RELIGION IS TAUGHT.  BUT WHATEVER MAY BE THE PHILOSOPHY OR ITS
JUSTIFICATION, THERE IS UNDENIABLY AN ADMIXTURE OF RELIGIOUS WITH
SECULAR TEACHING IN ALL SUCH INSTITUTIONS.  THAT IS THE VERY REASON FOR
THEIR BEING.  CERTAINLY FOR PURPOSES OF CONSTITUTIONALITY WE CANNOT
CONTRADICT THE WHOLE BASIS OF THE ETHICAL AND EDUCATIONAL CONVICTIONS
OF PEOPLE WHO BELIEVE IN RELIGIOUS SCHOOLING. 

YET THIS VERY ADMIXTURE IS WHAT WAS DISESTABLISHED WHEN THE FIRST
AMENDMENT FORBADE "AN ESTABLISHMENT OF RELIGION."  COMMINGLING THE
RELIGIOUS WITH THE SECULAR TEACHING DOES NOT DIVEST THE WHOLE OF ITS
RELIGIOUS PERMEATION AND EMPHASIS OR MAKE THEM OF MINOR PART, IF
PROPORTION WERE MATERIAL.  INDEED, ON ANY OTHER VIEW, THE
CONSTITUTIONAL PROHIBITION ALWAYS COULD BE BROUGHT TO NAUGHT BY ADDING
A MODICUM OF THE SECULAR. 

AN APPROPRIATION FROM THE PUBLIC TREASURY TO PAY THE COST OF
TRANSPORTATION TO SUNDAY SCHOOL, TO WEEKDAY SPECIAL CLASSES AT THE
CHURCH OR PARISH HOUSE, OR TO THE MEETINGS OF VARIOUS YOUNG PEOPLE'S
RELIGIOUS SOCIETIES, SUCH AS THE Y.M.C.A., THE Y.W.C.A., THE Y.M.H.A.,
THE EPWORTH LEAGUE, COULD NOT WITHSTAND THE CONSTITUTIONAL ATTACK. 
THIS WOULD BE TRUE, WHETHER OR NOT SECULAR ACTIVITIES WERE MIXED WITH
THE RELIGIOUS.  IF SUCH AN APPROPRIATION COULD NOT STAND, THEN IT IS
HARD TO SEE HOW ONE BECOMES VALID FOR THE SAME THING UPON THE MORE
EXTENDED SCALE OF DAILY INSTRUCTION.  SURELY CONSTITUTIONALITY DOES NOT
TURN ON WHERE OR HOW OFTEN THE MIXED TEACHING OCCURS. 

FINALLY, TRANSPORTATION, WHERE IT IS NEEDED, IS AS ESSENTIAL TO
EDUCATION AS ANY OTHER ELEMENT.  ITS COST IS AS MUCH A PART OF THE
TOTAL EXPENSE, EXCEPT AT TIMES IN AMOUNT, AS THE COST OF TEXTBOOKS, OF
SCHOOL LUNCHES, OF ATHLETIC EQUIPMENT, OF WRITING AND OTHER MATERIALS;
INDEED OF ALL OTHER ITEMS COMPOSING THE TOTAL BURDEN.  NOW AS ALWAYS
THE CORE OF THE EDUCATIONAL PROCESS IS THE TEACHER-PUPIL RELATIONSHIP. 
WITHOUT THIS THE RICHEST EQUIPMENT AND FACILITIES WOULD GO FOR NAUGHT. 
SEE JUDD V. BOARD OF EDUCATION, 278 N.Y. 200, 212, 15 N.E.2D 576, 582. 
BUT THE PROVERBIAL MARK HOPKINS CONCEPTION NO LONGER SUFFICES FOR THE
COUNTRY'S REQUIREMENTS.  WITHOUT BUILDINGS, WITHOUT EQUIPMENT, WITHOUT
LIBRARY, TEXTBOOKS AND OTHER MATERIALS, AND WITHOUT TRANSPORTATION TO
BRING TEACHER AND PUPIL TOGETHER IN SUCH AN EFFECTIVE TEACHING
ENVIRONMENT, THERE CAN BE NOT EVEN THE SKELETON OF WHAT OUR TIMES
REQUIRE.  HARDLY CAN IT BE MAINTAINED THAT TRANSPORTATION IS THE LEAST
ESSENTIAL OF THESE ITEMS, OR THAT IT DOES NOT IN FACT AID, ENCOURAGE,
SUSTAIN AND SUPPORT, JUST AS THEY DO, THE VERY PROCESS WHICH IS ITS
PURPOSE TO ACCOMPLISH.  NO LESS ESSENTIAL IS IT, OR THE PAYMENT OF ITS
COST, THAN THE VERY TEACHING IN THE CLASSROOM OR PAYMENT OF THE
TEACHER'S SUSTENANCE.  MANY TYPES OF EQUIPMENT, NOW CONSIDERED
ESSENTIAL, BETTER COULD BE DONE WITHOUT. 

FOR ME, THEREFORE, THE FEAT IS IMPOSSIBLE TO SELECT SO INDISPENSABLE
AN ITEM FROM THE COMPOSITE OF TOTAL COSTS, AND CHARACTERIZE IT AS NOT
AIDING, CONTRIBUTING TO, PROMOTING OR SUSTAINING THE PROPAGATION OF
BELIEFS WHICH IT IS THE VERY END OF ALL TO BRING ABOUT.  UNLESS THIS
CAN BE MAINTAINED, AND THE COURT DOES NOT MAINTAIN IT, THE AID THUS
GIVEN IS OUTLAWED.  PAYMENT OF TRANSPORTATION IS NO MORE, NOR IS IT ANY
THE LESS ESSENTIAL TO EDUCATION, WHETHER RELIGIOUS OR SECULAR, THAN
PAYMENT FOR TUITIONS, FOR TEACHERS' SALARIES, FOR BUILDINGS, EQUIPMENT
AND NECESSARY MATERIALS.  NOR IS IT ANY THE LESS DIRECTLY RELATED, IN A
SCHOOL GIVING RELIGIOUS INSTRUCTION, TO THE PRIMARY RELIGIOUS OBJECTIVE
ALL THOSE ESSENTIAL ITEMS OF COST ARE INTENDED TO ACHIEVE.  NO RATIONAL
LINE CAN BE DRAWN BETWEEN PAYMENT FOR SUCH LARGER, BUT NOT MORE
NECESSARY, ITEMS AND PAYMENT FOR TRANSPORTATION.  THE ONLY LINE THAT
CAN BE SO DRAWN IS ONE BETWEEN MORE DOLLARS AND LESS.  CERTAINLY IN
THIS REALM SUCH A LINE CAN BE NO VALID CONSTITUTIONAL MEASURE.  MURDOCK
V. PENNSYLVANIA, 319 U.S. 105; THOMAS V. COLLINS, 323 U.S. 516.  FN41
NOW, AS IN MADISON'S TIME, NOT THE AMOUNT BUT THE PRINCIPLE OF
ASSESSMENT IS WRONG.  REMONSTRANCE, PAR. 3. 

                                 IV. 

BUT WE ARE TOLD THAT THE NEW JERSEY STATUTE IS VALID IN ITS PRESENT
APPLICATION BECAUSE THE APPROPRIATION IS FOR A PUBLIC, NOT A PRIVATE
PURPOSE, NAMELY, THE PROMOTION OF EDUCATION, AND THE MAJORITY ACCEPT
THIS IDEA IN THE CONCLUSION THAT ALL WE HAVE HERE IS "PUBLIC WELFARE
LEGISLATION."  IF THAT IS TRUE AND THE AMENDMENT'S FORCE CAN BE THUS
DESTROYED, WHAT HAS BEEN SAID BECOMES ALL THE MORE PERTINENT.  FOR THEN
THERE COULD BE NO POSSIBLE OBJECTION TO MORE EXTENSIVE SUPPORT OF
RELIGIOUS EDUCATION BY NEW JERSEY. 

IF THE FACT ALONE BE DETERMINATIVE THAT RELIGIOUS SCHOOLS ARE ENGAGED
IN EDUCATION, THUS PROMOTING THE GENERAL AND INDIVIDUAL WELFARE,
TOGETHER WITH THE LEGISLATURE'S DECISION THAT THE PAYMENT OF PUBLIC
MONEYS FOR THEIR AID MAKES THEIR WORK A PUBLIC FUNCTION, THEN I CAN SEE
NO POSSIBLE BASIS, EXCEPT ONE OF DUBIOUS LEGISLATIVE POLICY, FOR THE
STATE'S REFUSAL TO MAKE FULL APPROPRIATION FOR SUPPORT OF PRIVATE,
RELIGIOUS SCHOOLS, JUST AS IS DONE FOR PUBLIC INSTRUCTION.  THERE COULD
NOT BE, ON THAT BASIS, VALID CONSTITUTIONAL OBJECTION.  FN42 

OF COURSE PAYING THE COST OF TRANSPORTATION PROMOTES THE GENERAL
CAUSE OF EDUCATION AND THE WELFARE OF THE INDIVIDUAL.  SO DOES PAYING
ALL OTHER ITEMS OF EDUCATIONAL EXPENSE.  AND OBVIOUSLY, AS THE MAJORITY
SAY, IT IS MUCH TOO LATE TO URGE THAT LEGISLATION DESIGNED TO
FACILITATE THE OPPORTUNITIES OF CHILDREN TO SECURE A SECULAR EDUCATION
SERVES NO PUBLIC PURPOSE.  OUR NATION-WIDE SYSTEM OF PUBLIC EDUCATION
RESTS ON THE CONTRARY VIEW, AS DO ALL GRANTS IN AID OF EDUCATION,
PUBLIC OR PRIVATE, WHICH IS NOT RELIGIOUS IN CHARACTER. 

THESE THINGS ARE BESIDE THE REAL QUESTION.  THEY HAVE NO POSSIBLE
MATERIALITY EXCEPT TO OBSCURE THE ALL-PERVADING, INESCAPABLE ISSUE. 
CF. COCHRAN V. BOARD OF EDUCATION, SUPRA.  STRIPPED OF ITS RELIGIOUS
PHASE, THE CASE PRESENTS NO SUBSTANTIAL FEDERAL QUESTION.  IBID.  THE
PUBLIC FUNCTION ARGUMENT, BY CASTING THE ISSUE IN TERMS OF PROMOTING
THE GENERAL CAUSE OF EDUCATION AND THE WELFARE OF THE INDIVIDUAL,
IGNORES THE RELIGIOUS FACTOR AND ITS ESSENTIAL CONNECTION WITH THE
TRANSPORTATION, THEREBY LEAVING OUT THE ONLY VITAL ELEMENT IN THE
CASE.  SO OF COURSE DO THE "PUBLIC WELFARE" AND "SOCIAL LEGISLATION"
IDEAS, FOR THEY COME TO THE SAME THING. 

WE HAVE HERE THEN ONE SUBSTANTIAL ISSUE, NOT TWO.  TO SAY THAT NEW
JERSEY'S APPROPRIATION AND HER USE OF THE POWER OF TAXATION FOR RAISING
THE FUNDS APPROPRIATED ARE NOT FOR PUBLIC PURPOSES BUT ARE FOR PRIVATE
ENDS, IS TO SAY THAT THEY ARE FOR THE SUPPORT OF RELIGION AND RELIGIOUS
TEACHING.  CONVERSELY, TO SAY THAT THEY ARE FOR PUBLIC PURPOSES IS TO
SAY THAT THEY ARE NOT FOR RELIGIOUS ONES. 

THIS IS PRECISELY FOR THE REASON THAT EDUCATION WHICH INCLUDES
RELIGIOUS TRAINING AND TEACHING, AND ITS SUPPORT, HAVE BEEN MADE
MATTERS OF PRIVATE RIGHT AND FUNCTION, NOT PUBLIC, BY THE VERY TERMS OF
THE FIRST AMENDMENT.  THAT IS THE EFFECT NOT ONLY IN ITS GUARANTY OF
RELIGION'S FREE EXERCISE, BUT ALSO IN THE PROHIBITION OF
ESTABLISHMENTS.  IT WAS ON THIS BASIS OF THE PRIVATE CHARACTER OF THE
FUNCTION OF RELIGIOUS EDUCATION THAT THIS COURT HELD PARENTS ENTITLED
TO SEND THEIR CHILDREN TO PRIVATE, RELIGIOUS SCHOOLS.  PIERCE V.
SOCIETY OF SISTERS, SUPRA.  NOW IT DECLARES IN EFFECT THAT THE
APPROPRIATION OF PUBLIC FUNDS TO DEFRAY PART OF THE COST OF ATTENDING
THOSE SCHOOLS IS FOR A PUBLIC PURPOSE.  IF SO, I DO NOT UNDERSTAND WHY
THE STATE CANNOT GO FARTHER OR WHY THIS CASE APPROACHES THE VERGE OF
ITS POWER. 

IN TRUTH THIS VIEW CONTRADICTS THE WHOLE PURPOSE AND EFFECT OF THE
FIRST AMENDMENT AS HERETOFORE CONCEIVED.  THE "PUBLIC FUNCTION" -
"PUBLIC WELFARE" - "SOCIAL LEGISLATION" ARGUMENT SEEKS, IN MADISON'S
WORDS, TO "EMPLOY RELIGION (THAT IS, HERE, RELIGIOUS EDUCATION) AS AN
ENGINE OF CIVIL POLICY."  REMONSTRANCE, PAR. 5.  IT IS OF ONE PIECE
WITH THE ASSESSMENT BILL'S PREAMBLE, ALTHOUGH WITH THE VITAL DIFFERENCE
THAT IT WHOLLY IGNORES WHAT THAT PREAMBLE EXPLICITLY STATES.  FN43 

OUR CONSTITUTIONAL POLICY IS EXACTLY THE OPPOSITE.  IT DOES NOT DENY
THE VALUE OR THE NECESSITY FOR RELIGIOUS TRAINING, TEACHING OR
OBSERVANCE.  RATHER IT SECURES THEIR FREE EXERCISE.  BUT TO THAT END IT
DOES DENY THAT THE STATE CAN UNDERTAKE OR SUSTAIN THEM IN ANY FORM OR
DEGREE.  FOR THIS REASON THE SPHERE OF RELIGIOUS ACTIVITY, AS
DISTINGUISHED FROM THE SECULAR INTELLECTUAL LIBERTIES, HAS BEEN GIVEN
THE TWOFOLD PROTECTION AND, AS THE STATE CANNOT FORBID, NEITHER CAN IT
PERFORM OR AID IN PERFORMING THE RELIGIOUS FUNCTION.  THE DUAL
PROHIBITION MAKES THAT FUNCTION ALTOGETHER PRIVATE.  IT CANNOT BE MADE
A PUBLIC ONE BY LEGISLATIVE ACT.  THIS WAS THE VERY HEART OF MADISON'S
REMONSTRANCE, AS IT IS OF THE AMENDMENT ITSELF. 

IT IS NOT BECAUSE RELIGIOUS TEACHING DOES NOT PROMOTE THE PUBLIC OR
THE INDIVIDUAL'S WELFARE, BUT BECAUSE NEITHER IS FURTHERED WHEN THE
STATE PROMOTES RELIGIOUS EDUCATION, THAT THE CONSTITUTION FORBIDS IT TO
DO SO.  BOTH LEGISLATURES AND COURTS ARE BOUND BY THAT DISTINCTION.  IN
FAILURE TO OBSERVE IT LIES THE FALLACY OF THE "PUBLIC FUNCTION" -
"SOCIAL LEGISLATION" ARGUMENT, A FALLACY FACILITATED BY EASY
TRANSFERENCE OF THE ARGUMENT'S BASING FROM DUE PROCESS UNRELATED TO ANY
RELIGIOUS ASPECT TO THE FIRST AMENDMENT. 

BY NO DECLARATION THAT A GIFT OF PUBLIC MONEY TO RELIGIOUS USES WILL
PROMOTE THE GENERAL OR INDIVIDUAL WELFARE, OR THE CAUSE OF EDUCATION
GENERALLY, CAN LEGISLATIVE BODIES OVERCOME THE AMENDMENT'S BAR.  NOR
MAY THE COURTS SUSTAIN THEIR ATTEMPTS TO DO SO BY FINDING SUCH
CONSEQUENCES FOR APPROPRIATIONS WHICH IN FACT GIVE AID TO OR PROMOTE
RELIGIOUS USES.  CF. NORRIS V. ALABAMA, 294 U.S. 587, 590; HOOVEN &
ALLISON CO. V. EVATT, 324 U.S. 652, 659; AKINS V. TEXAS, 325 U.S. 398,
402.  LEGISLATURES ARE FREE TO MAKE, AND COURTS TO SUSTAIN,
APPROPRIATIONS ONLY WHEN IT CAN BE FOUND THAT IN FACT THEY DO NOT AID,
PROMOTE, ENCOURAGE OR SUSTAIN RELIGIOUS TEACHING OR OBSERVANCES, BE THE
AMOUNT LARGE OR SMALL.  NO SUCH FINDING HAS BEEN OR COULD BE MADE IN
THIS CASE.  THE AMENDMENT HAS REMOVED THIS FORM OF PROMOTING THE PUBLIC
WELFARE FROM LEGISLATIVE AND JUDICIAL COMPETENCE TO MAKE A PUBLIC
FUNCTION.  IT IS EXCLUSIVELY A PRIVATE AFFAIR.    THE REASONS
UNDERLYING THE AMENDMENT'S POLICY HAVE NOT VANISHED WITH TIME OR
DIMINISHED IN FORCE.  NOW AS WHEN IT WAS ADOPTED THE PRICE OF RELIGIOUS
FREEDOM IS DOUBLE.  IT IS THAT THE CHURCH AND RELIGION SHALL LIVE BOTH
WITHIN AND UPON THAT FREEDOM.  THERE CANNOT BE FREEDOM OF RELIGION,
SAFEGUARDED BY THE STATE, AND INTERVENTION BY THE CHURCH OR ITS
AGENCIES IN THE STATE'S DOMAIN OR DEPENDENCY ON ITS LARGESSE. 
MADISON'S REMONSTRANCE, PAR. 6, 8.  FN44  THE GREAT CONDITION OF
RELIGIOUS LIBERTY IS THAT IT BE MAINTAINED FREE FROM SUSTENANCE, AS
ALSO FROM OTHER INTERFERENCES, BY THE STATE.  FOR WHEN IT COMES TO REST
UPON THAT SECULAR FOUNDATION IT VANISHES WITH THE RESTING.  ID., PAR.
7, 8.  FN45  PUBLIC MONEY DEVOTED TO PAYMENT OF RELIGIOUS COSTS,
EDUCATIONAL OR OTHER, BRINGS THE QUEST FOR MORE.  IT BRINGS TOO THE
STRUGGLE OF SECT AGAINST SECT FOR THE LARGER SHARE OR FOR ANY.  HERE
ONE BY NUMBERS ALONE WILL BENEFIT MOST, THERE ANOTHER.  THAT IS
PRECISELY THE HISTORY OF SOCIETIES WHICH HAVE HAD AN ESTABLISHED
RELIGION AND DISSIDENT GROUPS.  ID., PAR. 8, 11.  IT IS THE VERY THING
JEFFERSON AND MADISON EXPERIENCED AND SOUGHT TO GUARD AGAINST, WHETHER
IN ITS BLUNT OR IN ITS MORE SCREENED FORMS.  IBID.  THE END OF SUCH
STRIFE CANNOT BE OTHER THAN TO DESTROY THE CHERISHED LIBERTY.  THE
DOMINATING GROUP WILL ACHIEVE THE DOMINANT BENEFIT; OR ALL WILL EMBROIL
THE STATE IN THEIR DISSENSIONS.  ID., PAR. 11.  FN46 

EXACTLY SUCH CONFLICTS HAVE CENTERED OF LATE AROUND PROVIDING
TRANSPORTATION TO RELIGIOUS SCHOOLS FROM PUBLIC FUNDS.  FN47  THE ISSUE
AND THE DISSENSION WORK TYPICALLY, IN MADISON'S PHRASE, TO "DESTROY
THAT MODERATION AND HARMONY WHICH THE FORBEARANCE OF OUR LAWS TO
INTERMEDDLE WITH RELIGION, HAS PRODUCED AMONGST ITS SEVERAL SECTS." 
ID., PAR. 11.  THIS OCCURS, AS HE WELL KNEW, OVER MEASURES AT THE VERY
THRESHOLD OF DEPARTURE FROM THE PRINCIPLE.  ID., PAR. 3, 9, 11. 

IN THESE CONFLICTS WHEREVER SUCCESS HAS BEEN OBTAINED IT HAS BEEN
UPON THE CONTENTION THAT BY PROVIDING THE TRANSPORTATION THE GENERAL
CAUSE OF EDUCATION, THE GENERAL WELFARE, AND THE WELFARE OF THE
INDIVIDUAL WILL BE FORWARDED; HENCE THAT THE MATTER LIES WITHIN THE
REALM OF PUBLIC FUNCTION, FOR LEGISLATIVE DETERMINATION.  FN48  STATE
COURTS HAVE DIVIDED UPON THE ISSUE, SOME TAKING THE VIEW THAT ONLY THE
INDIVIDUAL, OTHERS THAT THE INSTITUTION RECEIVES THE BENEFIT.  FN49 A
FEW HAVE RECOGNIZED THAT THIS DICHOTOMY IS FALSE, THAT BOTH IN FACT ARE
AIDED.  FN50 

THE MAJORITY HERE DOES NOT ACCEPT IN TERMS ANY OF THOSE VIEWS.  BUT
NEITHER DOES IT DENY THAT THE INDIVIDUAL OR THE SCHOOL, OR INDEED BOTH,
ARE BENEFITED DIRECTLY AND SUBSTANTIALLY N51.  TO DO SO WOULD CUT THE
GROUND FROM UNDER THE PUBLIC FUNCTION - SOCIAL LEGISLATION THESIS.  ON
THE CONTRARY, THE OPINION CONCEDES THAT THE CHILDREN ARE AIDED BY BEING
HELPED TO GET TO THE RELIGIOUS SCHOOLING.  BY CONVERSE NECESSARY
IMPLICATION AS WELL AS BY THE ABSENCE OF EXPRESS DENIAL, IT MUST BE
TAKEN TO CONCEDE ALSO THAT THE SCHOOL IS HELPED TO REACH THE CHILD WITH
ITS RELIGIOUS TEACHING.  THE RELIGIOUS ENTERPRISE IS COMMON TO BOTH, AS
IS THE INTEREST IN HAVING TRANSPORTATION FOR ITS RELIGIOUS PURPOSES
PROVIDED. 

NOTWITHSTANDING THE RECOGNITION THAT THIS TWO-WAY AID IS GIVEN AND
THE ABSENCE OF ANY DENIAL THAT RELIGIOUS TEACHING IS THUS FURTHERED,
THE COURT CONCLUDES THAT THE AID SO GIVEN IS NOT "SUPPORT" OF
RELIGION.  IT IS RATHER ONLY SUPPORT OF EDUCATION AS SUCH, WITHOUT
REFERENCE TO ITS RELIGIOUS CONTENT, AND THUS BECOMES PUBLIC WELFARE
LEGISLATION.  TO THIS ELISION OF THE RELIGIOUS ELEMENT FROM THE CASE IS
ADDED GLOSS IN TWO RESPECTS, ONE THAT THE AID EXTENDED PARTAKES OF THE
NATURE OF A SAFETY MEASURE, THE OTHER THAT FAILURE TO PROVIDE IT WOULD
MAKE THE STATE UNNEUTRAL IN RELIGIOUS MATTERS, DISCRIMINATING AGAINST
OR HAMPERING SUCH CHILDREN CONCERNING PUBLIC BENEFITS ALL OTHERS
RECEIVE. 

AS WILL BE NOTED, THE ONE GLOSS IS CONTRADICTED BY THE FACTS OF
RECORD AND THE OTHER IS OF WHOLE CLOTH WITH THE "PUBLIC FUNCTION"
ARGUMENT'S EXCISION OF THE RELIGIOUS FACTOR N52.  BUT MOST IMPORTANT IS
THAT THIS APPROACH, IF VALID, SUPPLIES A READY METHOD FOR NULLIFYING
THE AMENDMENT'S GUARANTY, NOT ONLY FOR THIS CASE AND OTHERS INVOLVING
SMALL GRANTS IN AID FOR RELIGIOUS EDUCATION, BUT EQUALLY FOR LARGER
ONES.  THE ONLY THING NEEDED WILL BE FOR THE COURT AGAIN TO TRANSPLANT
THE "PUBLIC WELFARE - PUBLIC FUNCTION" VIEW FROM ITS PROPER
NONRELIGIOUS DUE PROCESS BEARING TO FIRST AMENDMENT APPLICATION,
HOLDING THAT RELIGIOUS EDUCATION IS NOT "SUPPORTED" THOUGH IT MAY BE
AIDED BY THE APPROPRIATION, AND THAT THE CAUSE OF EDUCATION GENERALLY
IS FURTHERED BY HELPING THE PUPIL TO SECURE THAT TYPE OF TRAINING. 

THIS IS NOT THEREFORE JUST A LITTLE CASE OVER BUS FARES.  IN
PARAPHRASE OF MADISON, DISTANT AS IT MAY BE IN ITS PRESENT FORM FROM A
COMPLETE ESTABLISHMENT OF RELIGION, IT DIFFERS FROM IT ONLY IN DEGREE;
AND IS THE FIRST STEP IN THAT DIRECTION.  ID., PAR. 9.  FN53  TODAY AS
IN HIS TIME "THE SAME AUTHORITY WHICH CAN FORCE A CITIZEN TO CONTRIBUTE
THREE PENCE ONLY  ...  FOR THE SUPPORT OF ANY ONE (RELIGIOUS)
ESTABLISHMENT, MAY FORCE HIM" TO PAY MORE; OR "TO CONFORM TO ANY OTHER
ESTABLISHMENT IN ALL CASES WHATSOEVER."  AND NOW, AS THEN, "EITHER  ...
WE MUST SAY, THAT THE WILL OF THE LEGISLATURE IS THE ONLY MEASURE OF
THEIR AUTHORITY; AND THAT IN THE PLENITUDE OF THIS AUTHORITY, THEY MAY
SWEEP AWAY ALL OUR FUNDAMENTAL RIGHTS; OR, THAT THEY ARE BOUND TO LEAVE
THIS PARTICULAR RIGHT UNTOUCHED AND SACRED."  REMONSTRANCE, PAR. 15. 

THE REALM OF RELIGIOUS TRAINING AND BELIEF REMAINS, AS THE AMENDMENT
MADE IT, THE KINGDOM OF THE INDIVIDUAL MAN AND HIS GOD.  IT SHOULD BE
KEPT INVIOLATELY PRIVATE, NOT "ENTANGLED  ...  IN PRECEDENTS"  FN54  OR
CONFOUNDED WITH WHAT LEGISLATURES LEGITIMATELY MAY TAKE OVER INTO THE
PUBLIC DOMAIN. 

    V. 

NO ONE CONSCIOUS OF RELIGIOUS VALUES CAN BE UNSYMPATHETIC TOWARD THE
BURDEN WHICH OUR CONSTITUTIONAL SEPARATION PUTS ON PARENTS WHO DESIRE
RELIGIOUS INSTRUCTION MIXED WITH SECULAR FOR THEIR CHILDREN.  THEY PAY
TAXES FOR OTHERS' CHILDREN'S EDUCATION, AT THE SAME TIME THE ADDED COST
OF INSTRUCTION FOR THEIR OWN.  NOR CAN ONE HAPPILY SEE BENEFITS DENIED
TO CHILDREN WHICH OTHERS RECEIVE, BECAUSE IN CONSCIENCE THEY OR THEIR
PARENTS FOR THEM DESIRE A DIFFERENT KIND OF TRAINING OTHERS DO NOT
DEMAND. 

BUT IF THOSE FEELINGS SHOULD PREVAIL, THERE WOULD BE AN END TO OUR
HISTORIC CONSTITUTIONAL POLICY AND COMMAND.  NO MORE UNJUST OR
DISCRIMINATORY IN FACT IS IT TO DENY ATTENDANTS AT RELIGIOUS SCHOOLS
THE COST OF THEIR TRANSPORTATION THAN IT IS TO DENY THEM TUITIONS,
SUSTENANCE FOR THEIR TEACHERS, OR ANY OTHER EDUCATIONAL EXPENSE WHICH
OTHERS RECEIVE AT PUBLIC COST.  HARDSHIP IN FACT THERE IS WHICH NONE
CAN BLINK.  BUT, FOR ASSURING TO THOSE WHO UNDERGO IT THE GREATER, THE
MOST COMPREHENSIVE FREEDOM, IT IS ONE WRITTEN BY DESIGN AND FIRM INTENT
INTO OUR BASIC LAW. 

OF COURSE DISCRIMINATION IN THE LEGAL SENSE DOES NOT EXIST.  THE
CHILD ATTENDING THE RELIGIOUS SCHOOL HAS THE SAME RIGHT AS ANY OTHER TO
ATTEND THE PUBLIC SCHOOL.  BUT HE FOREGOES EXERCISING IT BECAUSE THE
SAME GUARANTY WHICH ASSURES THIS FREEDOM FORBIDS THE PUBLIC SCHOOL OR
ANY AGENCY OF THE STATE TO GIVE OR AID HIM IN SECURING THE RELIGIOUS
INSTRUCTION HE SEEKS. 

WERE HE TO ACCEPT THE COMMON SCHOOL, HE WOULD BE THE FIRST TO PROTEST
THE TEACHING THERE OF ANY CREED OR FAITH NOT HIS OWN.  AND IT IS
PRECISELY FOR THE REASON THAT THEIR ATMOSPHERE IS WHOLLY SECULAR THAT
CHILDREN ARE NOT SENT TO PUBLIC SCHOOLS UNDER THE PIERCE DOCTRINE.  BUT
THAT IS A CONSTITUTIONAL NECESSITY, BECAUSE WE HAVE STAKED THE VERY
EXISTENCE OF OUR COUNTRY ON THE FAITH THAT COMPLETE SEPARATION BETWEEN
THE STATE AND RELIGION IS BEST FOR THE STATE AND BEST FOR RELIGION. 
REMONSTRANCE, PAR. 8, 12. 

THAT POLICY NECESSARILY ENTAILS HARDSHIP UPON PERSONS WHO FOREGO THE
RIGHT TO EDUCATIONAL ADVANTAGES THE STATE CAN SUPPLY IN ORDER TO SECURE
OTHERS IT IS PRECLUDED FROM GIVING.  INDEED THIS MAY HAMPER THE PARENT
AND THE CHILD FORCED BY CONSCIENCE TO THAT CHOICE.  BUT IT DOES NOT
MAKE THE STATE UNNEUTRAL TO WITHHOLD WHAT THE CONSTITUTION FORBIDS IT
TO GIVE.  ON THE CONTRARY IT IS ONLY BY OBSERVING THE PROHIBITION
RIGIDLY THAT THE STATE CAN MAINTAIN ITS NEUTRALITY AND AVOID
PARTISANSHIP IN THE DISSENSIONS INEVITABLE WHEN SECT OPPOSES SECT OVER
DEMANDS FOR PUBLIC MONEYS TO FURTHER RELIGIOUS EDUCATION, TEACHING OR
TRAINING IN ANY FORM OR DEGREE, DIRECTLY OR INDIRECTLY.  LIKE ST.
PAUL'S FREEDOM, RELIGIOUS LIBERTY WITH A GREAT PRICE MUST BE BOUGHT. 
AND FOR THOSE WHO EXERCISE IT MOST FULLY, BY INSISTING UPON RELIGIOUS
EDUCATION FOR THEIR CHILDREN MIXED WITH SECULAR, BY THE TERMS OF OUR
CONSTITUTION THE PRICE IS GREATER THAN FOR OTHERS. 

THE PROBLEM THEN CANNOT BE CAST IN TERMS OF LEGAL DISCRIMINATION OR
ITS ABSENCE.  THIS WOULD BE TRUE, EVEN THOUGH THE STATE IN GIVING AID
SHOULD TREAT ALL RELIGIOUS INSTRUCTION ALIKE.  THUS, IF THE PRESENT
STATUTE AND ITS APPLICATION WERE SHOWN TO APPLY EQUALLY TO ALL
RELIGIOUS SCHOOLS OF WHATEVER FAITH,  FN55  YET IN THE LIGHT OF OUR
TRADITION IT COULD NOT STAND.  FOR THEN THE ADHERENT OF ONE CREED STILL
WOULD PAY FOR THE SUPPORT OF ANOTHER, THE CHILDLESS TAXPAYER WITH
OTHERS MORE FORTUNATE.  THEN TOO THERE WOULD SEEM TO BE NO BAR TO
MAKING APPROPRIATIONS FOR TRANSPORTATION AND OTHER EXPENSES OF CHILDREN
ATTENDING PUBLIC OR OTHER SECULAR SCHOOLS, AFTER HOURS IN SEPARATE
PLACES AND CLASSES FOR THEIR EXCLUSIVELY RELIGIOUS INSTRUCTION.  THE
PERSON WHO EMBRACES NO CREED ALSO WOULD BE FORCED TO PAY FOR TEACHING
WHAT HE DOES NOT BELIEVE.  AGAIN, IT WAS THE FURNISHING OF
"CONTRIBUTIONS OF MONEY FOR THE PROPAGATION OF OPINIONS WHICH HE
DISBELIEVES" THAT THE FATHERS OUTLAWED.  THAT CONSEQUENCE AND EFFECT
ARE NOT REMOVED BY MULTIPLYING TO ALL-INCLUSIVENESS THE SECTS FOR WHICH
SUPPORT IS EXACTED.  THE CONSTITUTION REQUIRES, NOT COMPREHENSIVE
IDENTIFICATION OF STATE WITH RELIGION, BUT COMPLETE SEPARATION. 

              VI. 

SHORT TREATMENT WILL DISPOSE OF WHAT REMAINS.  WHATEVER MIGHT BE SAID
OF SOME OTHER APPLICATION OF NEW JERSEY'S STATUTE, THE ONE MADE HERE
HAS NO SEMBLANCE OF BEARING AS A SAFETY MEASURE OR, INDEED, FOR
SECURING EXPEDITIOUS CONVEYANCE.  THE TRANSPORTATION SUPPLIED IS BY
PUBLIC CONVEYANCE, SUBJECT TO ALL THE HAZARDS AND DELAYS OF THE HIGHWAY
AND THE STREETS INCURRED BY THE PUBLIC GENERALLY IN GOING ABOUT ITS
MULTIFARIOUS BUSINESS. 

NOR IS THE CASE COMPARABLE TO ONE OF FURNISHING FIRE OR POLICE
PROTECTION, OR ACCESS TO PUBLIC HIGHWAYS.  THESE THINGS ARE MATTERS OF
COMMON RIGHT, PART OF THE GENERAL NEED FOR SAFETY.  FN56 CERTAINLY THE
FIRE DEPARTMENT MUST NOT STAND IDLY BY WHILE THE CHURCH BURNS.  NOR IS
THIS REASON WHY THE STATE SHOULD PAY THE EXPENSE OF TRANSPORTATION OR
OTHER ITEMS OF THE COST OF RELIGIOUS EDUCATION.  FN57 

NEEDLESS TO ADD, WE HAVE NO SUCH CASE AS GREEN V. FRAZIER, 253 U.S.
233, OR CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495, WHICH DEALT WITH
MATTERS WHOLLY UNRELATED TO THE FIRST AMENDMENT, INVOLVING ONLY
SITUATIONS WHERE THE "PUBLIC FUNCTION" ISSUE WAS DETERMINATIVE. 

I HAVE CHOSEN TO PLACE MY DISSENT UPON THE BROAD GROUND I THINK
DECISIVE, THOUGH STRICTLY SPEAKING THE CASE MIGHT BE DECIDED ON
NARROWER ISSUES.  THE NEW JERSEY STATUTE MIGHT BE HELD INVALID ON ITS
FACE FOR THE EXCLUSION OF CHILDREN WHO ATTEND PRIVATE, PROFIT-MAKING
SCHOOLS.  FN58 I CANNOT ASSUME, AS DOES THE MAJORITY, THAT THE NEW
JERSEY COURTS WOULD WRITE OFF THIS EXPLICIT LIMITATION FROM THE
STATUTE.  MOREOVER, THE RESOLUTION BY WHICH THE STATUTE WAS APPLIED
EXPRESSLY LIMITS ITS BENEFITS TO STUDENTS OF PUBLIC AND CATHOLIC
SCHOOLS.  FN59  THERE IS NO SHOWING THAT THERE ARE NO OTHER PRIVATE OR
RELIGIOUS SCHOOLS IN THIS POPULOUS DISTRICT.  FN60  I DO NOT THINK IT
CAN BE ASSUMED THERE WERE NONE.  FN61  BUT IN THE VIEW I HAVE TAKEN, IT
IS UNNECESSARY TO LIMIT GROUNDING TO THESE MATTERS. 

TWO GREAT DRIVES ARE CONSTANTLY IN MOTION TO ABRIDGE, IN THE NAME OF
EDUCATION, THE COMPLETE DIVISION OF RELIGION AND CIVIL AUTHORITY WHICH
OUR FOREFATHERS MADE.  ONE IS TO INTRODUCE RELIGIOUS EDUCATION AND
OBSERVANCES INTO THE PUBLIC SCHOOLS.  THE OTHER, TO OBTAIN PUBLIC FUNDS
FOR THE AID AND SUPPORT OF VARIOUS PRIVATE RELIGIOUS SCHOOLS.  SEE
JOHNSON, THE LEGAL STATUS OF CHURCH-STATE RELATIONSHIPS IN THE UNITED
STATES (1934); THAYER, RELIGION IN PUBLIC EDUCATION (1947); NOTE (1941)
50 YALE L.J. 917.  IN MY OPINION BOTH AVENUES WERE CLOSED BY THE
CONSTITUTION.  NEITHER SHOULD BE OPENED BY THIS COURT.  THE MATTER IS
NOT ONE OF QUANTITY, TO BE MEASURED BY THE AMOUNT OF MONEY EXPENDED. 
NOW AS IN MADISON'S DAY IT IS ONE OF PRINCIPLE, TO KEEP SEPARATE THE
SEPARATE SPHERES AS THE FIRST AMENDMENT DREW THEM; TO PREVENT THE FIRST
EXPERIMENT UPON OUR LIBERTIES; AND TO KEEP THE QUESTION FROM BECOMING
ENTANGLED IN CORROSIVE PRECEDENTS.  WE SHOULD NOT BE LESS STRICT TO
KEEP STRONG AND UNTARNISHED THE ONE SIDE OF THE SHIELD OF RELIGIOUS
FREEDOM THAN WE HAVE BEEN OF THE OTHER. 

THE JUDGMENT SHOULD BE REVERSED. 

FN1  "A BILL FOR ESTABLISHING RELIGIOUS FREEDOM," ENACTED BY THE
GENERAL ASSEMBLY OF VIRGINIA, JANUARY 19, 1786.  SEE 1 RANDALL, THE
LIFE OF THOMAS JEFFERSON (1858) 219-220; XII HENING'S STATUTES OF
VIRGINIA (1823) 84. 

FN2  SCHNEIDER V. STATE, 308 U.S. 147; CANTWELL V. CONNECTICUT, 310
U.S. 296; MURDOCK V. PENNSYLVANIA, 319 U.S. 105; PRINCE V.
MASSACHUSETTS, 321 U.S. 158; THOMAS V. COLLINS, 323 U.S. 516, 530. 
FN3  THE BRIEFS DID NOT RAISE THE FIRST AMENDMENT ISSUE.  THE ONLY ONE
PRESENTED WAS WHETHER THE STATE'S ACTION INVOLVED A PUBLIC OR AN
EXCLUSIVELY PRIVATE FUNCTION UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  SEE PART IV INFRA.  ON THE FACTS, THE COST OF
TRANSPORTATION HERE IS INSEPARABLE FROM BOTH RELIGIOUS AND SECULAR
TEACHING AT THE RELIGIOUS SCHOOL.  IN THE COCHRAN CASE THE STATE
FURNISHED SECULAR TEXTBOOKS ONLY.  BUT SEE TEXT INFRA AT NOTE 40 ET
SEQ., AND PART IV. 

FN4  CF. NOTE 3 AND TEXT PART IV; SEE ALSO NOTE 35.    FN5  THE
STATUTE READS:  "WHENEVER IN ANY DISTRICT THERE ARE CHILDREN LIVING
REMOTE FROM ANY SCHOOLHOUSE, THE BOARD OF EDUCATION OF THE DISTRICT MAY
MAKE RULES AND CONTRACTS FOR THE TRANSPORTATION OF SUCH CHILDREN TO AND
FROM SCHOOL  ...  OTHER THAN A PUBLIC SCHOOL, EXCEPT SUCH SCHOOL AS IS
OPERATED FOR PROFIT IN WHOLE OR IN PART. 

"WHEN ANY SCHOOL DISTRICT PROVIDES ANY TRANSPORTATION FOR PUBLIC
SCHOOL CHILDREN TO AND FROM SCHOOL, TRANSPORTATION FROM ANY POINT IN
SUCH ESTABLISHED SCHOOL ROUTE TO ANY OTHER POINT IN SUCH ESTABLISHED
SCHOOL ROUTE SHALL BE SUPPLIED TO SCHOOL CHILDREN RESIDING IN SUCH
SCHOOL DISTRICT IN GOING TO AND FROM SCHOOL OTHER THAN A PUBLIC SCHOOL,
EXCEPT SUCH SCHOOL AS IS OPERATED FOR PROFIT IN WHOLE OR IN PART." 
LAWS OF NEW JERSEY (1941) C. 191. 

FN6  THE FULL TEXT OF THE RESOLUTION IS GIVEN IN NOTE 59 INFRA. 

FN7  THE PUBLIC SCHOOLS ATTENDED WERE THE TRENTON SENIOR HIGH SCHOOL,
THE TRENTON JUNIOR HIGH SCHOOL AND THE PENNINGTON HIGH SCHOOL.  EWING
TOWNSHIP ITSELF PROVIDES NO PUBLIC HIGH SCHOOLS, AFFORDING ONLY
ELEMENTARY PUBLIC SCHOOLS WHICH STOP WITH THE EIGHTH GRADE.  THE EWING
SCHOOL BOARD PAYS FOR BOTH TRANSPORTATION AND TUITIONS OF PUPILS
ATTENDING THE PUBLIC HIGH SCHOOLS.  THE ONLY PRIVATE SCHOOLS, ALL
CATHOLIC, COVERED IN APPLICATION OF THE RESOLUTION ARE ST. MARY'S
CATHEDRAL HIGH SCHOOL, TRENTON CATHOLIC BOYS HIGH SCHOOL, AND TWO
ELEMENTARY PAROCHIAL SCHOOLS, ST. HEDWIG'S PAROCHIAL SCHOOL AND ST.
FRANCIS SCHOOL.  THE EWING BOARD PAYS ONLY FOR TRANSPORTATION TO THESE
SCHOOLS, NOT FOR TUITIONS.  SO FAR AS THE RECORD DISCLOSES, THE BOARD
DOES NOT PAY FOR OR PROVIDE TRANSPORTATION TO ANY OTHER ELEMENTARY
SCHOOL, PUBLIC OR PRIVATE.  SEE NOTES 58, 59 AND TEXT INFRA. 

FN8  IX WRITINGS OF JAMES MADISON (ED. BY HUNT, 1910) 288; PADOVER,
JEFFERSON (1942) 74.  MADISON'S CHARACTERIZATION RELATED TO JEFFERSON'S
ENTIRE REVISION OF THE VIRGINIA CODE, OF WHICH THE BILL FOR
ESTABLISHING RELIGIOUS FREEDOM WAS PART.  SEE NOTE 15. 

FN9  SEE REYNOLDS V. UNITED STATES, 98 U.S. 145; DAVIS V. BEASON, 133
U.S. 333; MORMON CHURCH V. UNITED STATES, 136 U.S. 1; JACOBSON V.
MASSACHUSETTS, 197 U.S. 11; PRINCE V. MASSACHUSETTS, 321 U.S. 158; ALSO
CLEVELAND V. UNITED STATES, 329 U.S. 14. 

POSSIBLY THE FIRST OFFICIAL DECLARATION OF THE "CLEAR AND PRESENT
DANGER" DOCTRINE WAS JEFFERSON'S DECLARATION IN THE VIRGINIA STATUTE
FOR ESTABLISHING RELIGIOUS FREEDOM:  "THAT IT IS TIME ENOUGH FOR THE
RIGHTFUL PURPOSES OF CIVIL GOVERNMENT FOR ITS OFFICERS TO INTERFERE
WHEN PRINCIPLES BREAK OUT INTO OVERT ACTS AGAINST PEACE AND GOOD
ORDER."  1 RANDALL, THE LIFE OF THOMAS JEFFERSON (1858) 220; PADOVER,
JEFFERSON (1942) 81.  FOR MADISON'S VIEW TO THE SAME EFFECT, SEE NOTE
28 INFRA. 

FN10  MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 109; MARTIN V.
STRUTHERS, 319 U.S. 141; JAMISON V. TEXAS, 318 U.S. 413; MARSH V.
ALABAMA, 326 U.S. 501; TUCKER V. TEXAS, 326 U.S. 517. 

FN11  CONFLICTS IN OTHER STATES, AND EARLIER IN THE COLONIES,
CONTRIBUTED MUCH TO GENERATION OF THE AMENDMENT, BUT NONE SO DIRECTLY
AS THAT IN VIRGINIA OR WITH SUCH FORMATIVE INFLUENCE ON THE AMENDMENT'S
CONTENT AND WORDING.  SEE COBB, RISE OF RELIGIOUS LIBERTY IN AMERICA
(1902); SWEET, THE STORY OF RELIGION IN AMERICA (1939).  THE CHARTER OF
RHODE ISLAND OF 1663, II POORE, CONSTITUTIONS (1878) 1595, WAS THE
FIRST COLONIAL CHARTER TO PROVIDE FOR RELIGIOUS FREEDOM. 

THE CLIMACTIC PERIOD OF THE VIRGINIA STRUGGLE COVERS THE DECADE 1776
1786, FROM ADOPTION OF THE DELCARATION OF RIGHTS TO ENACTMENT OF THE
STATUTE FOR RELIGIOUS FREEDOM.  FOR SHORT ACCOUNTS SEE PADOVER,
JEFFERSON (1942) C. V; BRANT, JAMES MADISON, THE VIRGINIA REVOLUTIONIST
(1941) CC. XII, XV; JAMES, THE STRUGGLE FOR RELIGIOUS LIBERTY IN
VIRGINIA (1900) CC. X, XI; ECKENRODE, SEPARATION OF CHURCH AND STATE IN
VIRGINIA (1910).  THESE WORKS AND RANDALL, SEE NOTE 1, WILL BE CITED IN
THIS OPINION BY THE NAMES OF THEIR AUTHORS.  CITATIONS TO "JEFFERSON"
REFER TO THE WORKS OF THOMAS JEFFERSON (ED. BY FORD, 1904-1905); TO
"MADISON," TO THE WRITINGS OF JAMES MADISON (ED. BY HUNT, 1901-1910). 

FN12  BRANT, CC. XII, XV; JAMES, CC. X, XI; ECKENRODE. 

FN13  SEE BRANT, C. XII, PARTICULARLY AT 243.  CF. MADISON'S
REMONSTRANCE, APPENDIX TO THIS OPINION.  JEFFERSON OF COURSE HELD THE
SAME VIEW.  SEE NOTE 15. 

"MADISON LOOKED UPON  ...  RELIGIOUS FREEDOM, TO JUDGE FROM THE
CONCENTRATED ATTENTION HE GAVE IT, AS THE FUNDAMENTAL FREEDOM."  BRANT,
243; AND SEE REMONSTRANCE, PAR. 1, 4, 15, APPENDIX. 

FN14  SEE BRANT, 245-246.  MADISON QUOTED LIBERALLY FROM THE
DECLARATION IN HIS REMONSTRANCE AND THE USE MADE OF THE QUOTATIONS
INDICATES THAT HE CONSIDERED THE DECLARATION TO HAVE OUTLAWED THE
PREVAILING ESTABLISHMENT IN PRINCIPLE, IF NOT TECHNICALLY. 

FN15  JEFFERSON WAS CHAIRMAN OF THE REVISING COMMITTEE AND CHIEF
DRAFTSMAN.  COREVISERS WERE WYTHE, PENDLETON, MASON AND LEE.  THE FIRST
ENACTED PORTION OF THE REVISION, WHICH BECAME KNOWN AS JEFFERSON'S
CODE, WAS THE STATUTE BARRING ENTAILMENTS.  PRIMOGENITURE SOON
FOLLOWED.  MUCH LONGER THE AUTHOR WAS TO WAIT FOR ENACTMENT OF THE BILL
FOR RELIGIOUS FREEDOM; AND NOT UNTIL AFTER HIS DEATH WAS THE COROLLARY
BILL TO BE ACCEPTED IN PRINCIPLE WHICH HE CONSIDERED MOST IMPORTANT OF
ALL, NAMELY, TO PROVIDE FOR COMMON EDUCATION AT PUBLIC EXPENSE.  SEE V
JEFFERSON, 153.  HOWEVER, HE LINKED THIS WITH DISESTABLISHMENT AS
COROLLARY PRIME PARTS IN A SYSTEM OF BASIC FREEDOMS.  I JEFFERSON, 78. 

JEFFERSON, AND MADISON BY HIS SPONSORSHIP, SOUGHT TO GIVE THE BILL
FOR ESTABLISHING RELIGIOUS FREEDOM AS NEARLY CONSTITUTIONAL STATUS AS
THEY COULD AT THE TIME.  ACKNOWLEDGING THAT ONE LEGISLATURE COULD NOT
"RESTRAIN THE ACTS OF SUCCEEDING ASSEMBLIES  ...  AND THAT THEREFORE TO
DECLARE THIS ACT IRREVOCABLE WOULD BE OF NO EFFECT IN LAW," THE BILL'S
CONCLUDING PROVISION AS ENACTED NEVERTHELESS ASSERTED:  "YET WE ARE
FREE TO DECLARE, AND DO DECLARE, THAT THE RIGHTS HEREBY ASSERTED ARE OF
THE NATURAL RIGHTS OF MANKIND, AND THAT IF ANY ACT SHALL BE HEREAFTER
PASSED TO REPEAL THE PRESENT OR TO NARROW ITS OPERATION, SUCH ACT WILL
BE AN INFRINGEMENT OF NATURAL RIGHT."  1 RANDALL, 220. 

FN16  SEE I JEFFERSON, 70-71; XII JEFFERSON, 447; PADOVER, 80. 

FN17  MADISON REGARDED THIS ACTION AS DESERTION.  SEE HIS LETTER TO
MONROE OF APRIL 12, 1785; II MADISON, 129, 131-132; JAMES, CC. X, XI.
BUT SEE ECKENRODE, 91, SUGGESTING IT WAS SURRENDER TO THE INEVITABLE. 

THE BILL PROVIDED:  "THAT FOR EVERY SUM SO PAID, THE SHERIFF OR
COLLECTOR SHALL GIVE A RECEIPT, EXPRESSING THEREIN TO WHAT SOCIETY OF
CHRISTIANS THE PERSON FROM WHOM HE MAY RECEIVE THE SAME SHALL DIRECT
THE MONEY TO BE PAID  ...."  SEE ALSO NOTES 19, 43 INFRA. 

A COPY OF THE ASSESSMENT BILL IS TO BE FOUND AMONG THE WASHINGTON
MANUSCRIPTS IN THE LIBRARY OF CONGRESS.  PAPERS OF GEORGE WASHINGTON,
VOL. 231.  BECAUSE OF ITS CRUCIAL ROLE IN THE VIRGINIA STRUGGLE AND
BEARING UPON THE FIRST AMENDMENT'S MEANING, THE TEXT OF THE BILL IS SET
FORTH IN THE SUPPLEMENTAL APPENDIX TO THIS OPINION. 

FN18  ECKENRODE, 99, 100. 

FN19  ID., 100; II MADISON, 113.  THE BILL DIRECTED THE SHERIFF TO
PAY "ALL SUMS WHICH  ...  MAY NOT BE APPROPRIATED BY THE PERSON PAYING
THE SAME  ...  INTO THE PUBLIC TREASURY, TO BE DISPOSED OF UNDER THE
DIRECTION OF THE GENERAL ASSEMBLY, FOR THE ENCOURAGEMENT OF SEMINARIES
OF LEARNING WITHIN THE COUNTIES WHENCE SUCH SUMS SHALL ARISE, AND TO NO
OTHER USE OR PURPOSE WHATSOEVER."  SUPPLEMENTAL APPENDIX. 

FN20  SEE GENERALLY ECKENRODE, C. V; BRANT, JAMES, AND OTHER
AUTHORITIES CITED IN NOTE 11 ABOVE. 

FN21  II MADISON, 183; AND THE APPENDIX TO THIS OPINION.  ECKENRODE,
100 FF.  SEE ALSO FLEET, MADISON'S "DETACHED MEMORANDA" (1946) III
WILLIAM & MARY Q. (3D SERIES) 534, 554-562. 

FN22  THE MAJOR CAUSES ASSIGNED FOR ITS DEFEAT INCLUDE THE ELEVATION
OF PATRICK HENRY TO THE GOVERNORSHIP IN NOVEMBER OF 1784; THE BLUNDER
OF THE PROPONENTS IN ALLOWING THE BILL FOR INCORPORATIONS TO COME TO
THE FLOOR AND INCUR DEFEAT BEFORE THE ASSESSMENT BILL WAS ACTED ON;
MADISON'S ASTUTE LEADERSHIP, TAKING ADVANTAGE OF EVERY "BREAK" TO
CONVERT HIS INITIAL MINORITY INTO A MAJORITY, INCLUDING THE DEFERMENT
OF ACTION ON THE THIRD READING TO THE FALL; THE REMONSTRANCE, BRINGING
A FLOOD OF PROTESTING PETITIONS; AND THE GENERAL POVERTY OF THE TIME. 
SEE ECKENRODE, C. V, FOR AN EXCELLENT SHORT, DETAILED ACCOUNT. 

FN23  SEE JAMES, BRANT, OP. CIT. SUPRA NOTE 11. 

FN24  V MADISON, 176.  CF. NOTES 33, 37. 

FN25  V MADISON, 132. 

FN26  BRANT, 250.  THE ASSURANCE MADE FIRST TO HIS CONSTITUENTS WAS
RESPONSIBLE FOR MADISON'S BECOMING A MEMBER OF THE VIRGINIA CONVENTION
WHICH RATIFIED THE CONSTITUTION.  SEE JAMES, 154-158. 

FN27  THE AMENDMENT WITH RESPECT TO RELIGIOUS LIBERTIES READ, AS
MADISON INTRODUCED IT:  "THE CIVIL RIGHTS OF NONE SHALL BE ABRIDGED ON
ACCOUNT OF RELIGIOUS BELIEF OR WORSHIP, NOR SHALL ANY NATIONAL RELIGION
BE ESTABLISHED, NOR SHALL THE FULL AND EQUAL RIGHTS OF CONSCIENCE BE IN
ANY MANNER, OR ON ANY PRETEXT, INFRINGED."  1 ANNALS OF CONGRESS 434. 
IN THE PROCESS OF DEBATE THIS WAS MODIFIED TO ITS PRESENT FORM.  SEE
ESPECIALLY 1 ANNALS OF CONGRESS 729-731, 765; ALSO NOTE 34. 

FN28  SEE TEXT OF THE REMONSTRANCE, APPENDIX; ALSO NOTES 13, 15, 24,
25 SUPRA AND TEXT. 

MADISON'S ONE EXCEPTION CONCERNING RESTRAINT WAS FOR "PRESERVING
PUBLIC ORDER."  THUS HE DECLARED IN A PRIVATE LETTER, IX MADISON, 484,
487, WRITTEN AFTER THE FIRST AMENDMENT WAS ADOPTED: "THE TENDENCY TO A
USURPATION ON ONE SIDE OR THE OTHER, OR TO A CORRUPTING COALITION OR
ALLIANCE BETWEEN THEM, WILL BE BEST GUARDED AGST.  BY AN ENTIRE
ABSTINANCE OF THE GOVT. FROM INTERFERENCE IN ANY WAY WHATEVER, BEYOND
THE NECESSITY OF PRESERVING PUBLIC ORDER, & PROTECTING EACH SECT AGST. 
TRESPASSES ON ITS LEGAL RIGHTS BY OTHERS."  CF. NOTE 9. 

FN29  THE THIRD GROUND OF REMONSTRANCE, SEE THE APPENDIX, BEARS
REPETITION FOR EMPHASIS HERE: "BECAUSE, IT IS PROPER TO TAKE ALARM AT
THE FIRST EXPERIMENT ON OUR LIBERTIES  ...  THE FREEMEN OF AMERICA DID
NOT WAIT TILL USURPED POWER HAD STRENGTHENED ITSELF BY EXERCISE, AND
ENTANGLED THE QUESTION IN PRECEDENTS.  THEY SAW ALL THE CONSEQUENCES IN
THE PRINCIPLE, AND THEY AVOIDED THE CONSEQUENCES BY DENYING THE
PRINCIPLE.  WE REVERE THIS LESSON TOO MUCH, SOON TO FORGET IT.  WHO
DOES NOT SEE THAT  ...  THE SAME AUTHORITY WHICH CAN FORCE A CITIZEN TO
CONTRIBUTE THREE PENCE ONLY OF HIS PROPERTY FOR THE SUPPORT OF ANY ONE
ESTABLISHMENT, MAY FORCE HIM TO CONFORM TO ANY OTHER ESTABLISHMENT IN
ALL CASES WHATSOEVER?"  II MADISON 183, 185-186. 

FN30  ECKENRODE, 105, IN SUMMARY OF THE REMONSTRANCE. 

FN31  "BECAUSE THE BILL IMPLIES EITHER THAT THE CIVIL MAGISTRATE IS A
COMPETENT JUDGE OF RELIGIOUS TRUTH; OR THAT HE MAY EMPLOY RELIGION AS
AN ENGINE OF CIVIL POLICY.  THE FIRST IS AN ARROGANT PRETENTION
FALSIFIED BY THE CONTRADICTORY OPINIONS OF RULERS IN ALL AGES, AND
THROUGHOUT THE WORLD:  THE SECOND AN UNHALLOWED PERVERSION OF THE MEANS
OF SALVATION."  REMONSTRANCE, APPENDIX, PAR. 5; II MADISON 183, 187. 

FN32  AS IS POINTED OUT ABOVE, NOTE 3, AND IN PART IV INFRA, COCHRAN
V. BOARD OF EDUCATION, 281 U.S. 370, WAS NOT SUCH A CASE. 

FN33  SEE TEXT SUPRA AT NOTES 24, 25.  MADISON, OF COURSE, WAS BUT
ONE OF MANY HOLDING SUCH VIEWS, BUT NEVERTHELESS AGREEING TO THE COMMON
UNDERSTANDING FOR ADOPTION OF A BILL OF RIGHTS IN ORDER TO REMOVE ALL
DOUBT ENGENDERED BY THE ABSENCE OF EXPLICIT GUARANTIES IN THE ORIGINAL
CONSTITUTION. 

BY 1791 THE GREAT FIGHT OVER ESTABLISHMENTS HAD ENDED, ALTHOUGH SOME
VESTIGES REMAINED THEN AND LATER, EVEN IN VIRGINIA.  THE GLEBES, FOR
EXAMPLE, WERE NOT SOLD THERE UNTIL 1802.  CF. ECKENRODE, 147.  FIXING
AN EXACT DATE FOR "DISESTABLISHMENT" IS ALMOST IMPOSSIBLE, SINCE THE
PROCESS WAS PIECEMEAL.  ALTHOUGH MADISON FAILED IN HAVING THE VIRGINIA
BILL OF RIGHTS DECLARE EXPLICITLY AGAINST ESTABLISHMENT IN 1776, CR.
NOTE 14 AND TEXT SUPRA, IN 1777 THE LEVY FOR SUPPORT OF THE ANGLICAN
CLERGY WAS SUSPENDED.  IT WAS NEVER RESUMED.  ECKENRODE STATES:  "THIS
ACT, IN EFFECT, DESTROYED THE ESTABLISHMENT.  MANY DATES HAVE BEEN
GIVEN FOR ITS END, BUT IT REALLY CAME ON JANUARY 1, 1777, WHEN THE ACT
SUSPENDING THE PAYMENT OF TITHES BECAME EFFECTIVE.  THIS WAS NOT SEEN
AT THE TIME  ....  BUT IN FREEING ALMOST HALF OF THE TAXPAYERS FROM THE
BURDEN OF THE STATE RELIGION, THE STATE RELIGION WAS AT AN END.  NOBODY
COULD BE FORCED TO SUPPORT IT, AND AN ATTEMPT TO LEVY TITHES UPON
ANGLICANS ALONE WOULD BE TO RECRUIT THE RANKS OF DISSENT."  P. 53.  SEE
ALSO PP. 61, 64.  THE QUESTION OF ASSESSMENT HOWEVER WAS REVIVED "WITH
FAR MORE STRENGTH THAN EVER, IN THE SUMMER OF 1784."  ID., 64.  IT
WOULD SEEM MORE FACTUAL THEREFORE TO FIX THE TIME OF DISESTABLISHMENT
AS OF DECEMBER, 1785-JANUARY, 1786, WHEN THE ISSUE IN LARGE WAS FINALLY
SETTLED. 

FN34  AT ONE POINT THE WORDING WAS PROPOSED:  "NO RELIGION SHALL BE
ESTABLISHED BY LAW, NOR SHALL THE EQUAL RIGHTS OF CONSCIENCE BE
INFRINGED."  1 ANNALS OF CONGRESS 729.  CF. NOTE 27.  REPRESENTATIVE
HUNTINGTON OF CONNECTICUT FEARED THIS MIGHT BE CONSTRUED TO PREVENT
JUDICIAL ENFORCEMENT OF PRIVATE PLEDGES.  HE STATED "THAT HE FEARED
...  THAT THE WORDS MIGHT BE TAKEN IN SUCH LATITUDE AS TO BE EXTREMELY
HURTFUL TO THE CAUSE OF RELIGION.  HE UNDERSTOOD THE AMENDMENT TO MEAN
WHAT HAD BEEN EXPRESSED BY THE GENTLEMAN FROM VIRGINIA; BUT OTHERS
MIGHT FIND IT CONVENIENT TO PUT ANOTHER CONSTRUCTION UPON IT.  THE
MINISTERS OF THEIR CONGREGATIONS TO THE EASTWARD WERE MAINTAINED BY THE
CONTRIBUTIONS OF THOSE WHO BELONGED TO THEIR SOCIETY; THE EXPENSE OF
BUILDING MEETING-HOUSES WAS CONTRIBUTED IN THE SAME MANNER.  THESE
THINGS WERE REGULATED BY BY-LAWS.  IF AN ACTION WAS BROUGHT BEFORE A
FEDERAL COURT ON ANY OF THESE CASES, THE PERSON WHO HAD NEGLECTED TO
PERFORM HIS ENGAGEMENTS COULD NOT BE COMPELLED TO DO IT; FOR A SUPPORT
OF MINISTERS OR BUILDINGS OF PLACES OF WORSHIP MIGHT BE CONSTRUED INTO
A RELIGIOUS ESTABLISHMENT."  1 ANNALS OF CONGRESS 730. 

TO AVOID ANY SUCH POSSIBILITY, MADISON SUGGESTED INSERTING THE WORD
"NATIONAL" BEFORE "RELIGION," THEREBY NOT ONLY AGAIN DISCLAIMING INTENT
TO BRING ABOUT THE RESULT HUNTINGTON FEARED BUT ALSO SHOWING
UNMISTAKABLY THAT "ESTABLISHMENT" MEANT PUBLIC "SUPPORT" OF RELIGION IN
THE FINANCIAL SENSE.  1 ANNALS OF CONGRESS 731.  SEE ALSO IX MADISON,
484-487. 

FN35  THE DECISION MOST CLOSELY TOUCHING THE QUESTION, WHERE IT WAS
SQUARELY RAISED, IS QUICK BEAR V. LEUPP, 210 U.S. 50.  THE COURT
DISTINGUISHED SHARPLY BETWEEN APPROPRIATIONS FROM PUBLIC FUNDS FOR THE
SUPPORT OF RELIGIOUS EDUCATION AND APPROPRIATIONS FROM FUNDS HELD IN
TRUST BY THE GOVERNMENT ESSENTIALLY AS TRUSTEE FOR PRIVATE INDIVIDUALS,
INDIAN WARDS, AS BENEFICIAL OWNERS.  THE RULING WAS THAT THE LATTER
COULD BE DISBURSED TO PRIVATE, RELIGIOUS SCHOOLS AT THE DESIGNATION OF
THOSE PATRONS FOR PAYING THE COST OF THEIR EDUCATION.  BUT IT WAS
STATED ALSO THAT SUCH A USE OF PUBLIC MONEYS WOULD VIOLATE BOTH THE
FIRST AMENDMENT AND THE SPECIFIC STATUTORY DECLARATION INVOLVED,
NAMELY, THAT "IT IS HEREBY DECLARED TO BE THE SETTLED POLICY OF THE
GOVERNMENT TO HEREAFTER MAKE NO APPROPRIATION WHATEVER FOR EDUCATION IN
ANY SECTARIAN SCHOOL."  210 U.S. AT 79.  CF. PONCE V. ROMAN CATHOLIC
APOSTOLIC CHURCH, 210 U.S. 296, 322.  AND SEE BRADFIELD V. ROBERTS, 175
U.S. 291, AN INSTANCE OF HIGHLY ARTIFICIAL GROUNDING TO SUPPORT A
DECISION SUSTAINING AN APPROPRIATION FOR THE CARE OF INDIGENT PATIENTS
PURSUANT TO A CONTRACT WITH A PRIVATE HOSPITAL.  CF. ALSO THE
AUTHORITIES CITED IN NOTE 9. 

FN36  SEE TEXT AT NOTE 1. 

FN37  "...  BUT NO RELIGIOUS TEST SHALL EVER BE REQUIRED AS A
QUALIFICATION TO ANY OFFICE OR PUBLIC TRUST UNDER THE UNITED STATES." 
CONST., ART. VI, SEC. 3.  SEE ALSO THE TWO FORMS PRESCRIBED FOR THE
PRESIDENT'S OATH OR AFFIRMATION.  CONST., ART. II, SEC. 1.  CF. EX
PARTE GARLAND, 4 WALL.  333; CUMMINGS V. MISSOURI, 4 WALL.  277; UNITED
STATES V. LOVETT, 328 U.S. 303. 

FN38  IN THE WORDS OF THE VIRGINIA STATUTE, FOLLOWING THE PORTION OF
THE PREAMBLE QUOTED AT THE BEGINNING OF THIS OPINION:  "...  EVEN THE
FORCING HIM TO SUPPORT THIS OR THAT TEACHER OF HIS OWN RELIGIOUS
PERSUASION, IS DEPRIVING HIM OF THE COMFORTABLE LIBERTY OF GIVING HIS
CONTRIBUTIONS TO THE PARTICULAR PASTOR, WHOSE MORALS HE WOULD MAKE HIS
PATTERN, AND WHOSE POWERS HE FEELS MOST PERSUASIVE TO RIGHTEOUSNESS,
AND IS WITHDRAWING FROM THE MINISTRY THOSE TEMPORARY REWARDS, WHICH
PROCEEDING FROM AN APPROBATION OF THEIR PERSONAL CONDUCT, ARE AN
ADDITIONAL FROM AN APPROBATION OF THEIR PERSONAL CONDUCT, ARE AN
ADDITIONAL OF MANKIND  ...."  CF. NOTES 29, 30, 31 AND TEXT SUPRA. 

FN39  SEE NOTE 38. 

FN40  SEE BOWER, CHURCH AND STATE IN EDUCATION (1944) 58:  "...  THE
FUNDAMENTAL DIVISION OF THE EDUCATION OF THE WHOLE SELF INTO THE
SECULAR AND THE RELIGIOUS COULD NOT BE JUSTIFIED ON THE GROUNDS OF
EITHER A SOUND EDUCATIONAL PHILOSOPHY OR A MODERN FUNCTIONAL CONCEPT OF
THE RELATION OF RELIGION TO PERSONAL AND SOCIAL EXPERIENCE."  SEE ALSO
VERE, THE ELEMENTARY SCHOOL, IN ESSAYS ON CATHOLIC EDUCATION IN THE
UNITED STATES (1942) 110-111; GABLE, PUBLIC FUNDS FOR CHURCH AND
PRIVATE SCHOOLS (1937) 737-739. 

FN41  IT WOULD SEEM A STRANGE RULING THAT A "REASONABLE," THAT IS,
PRESUMABLY A SMALL, LICENSE FEE CANNOT BE PLACED UPON THE EXERCISE OF
THE RIGHT OF RELIGIOUS INSTRUCTION, YET THAT UNDER THE CORRELATIVE
CONSTITUTIONAL GUARANTY AGAINST "AN ESTABLISHMENT" TAXES MAY BE LEVIED
AND USED TO AID AND PROMOTE RELIGIOUS INSTRUCTION, IF ONLY THE AMOUNTS
SO USED ARE SMALL.  SEE NOTES 30-31 SUPRA AND TEXT. 

MADISON'S OBJECTION TO "THREE PENCE" CONTRIBUTIONS AND HIS STRESS
UPON "DENYING THE PRINCIPLE" WITHOUT WAITING UNTIL "USURPED POWER HAD
...  ENTANGLED THE QUESTION IN PRECEDENTS," NOTE 29, WERE REINFORCED BY
HIS FURTHER CHARACTERIZATION OF THE ASSESSMENT BILL:  "DISTANT AS IT
MAY BE, IN ITS PRESENT FORM, FROM THE INQUISITION IT DIFFERS FROM IT
ONLY IN DEGREE.  THE ONE IS THE FIRST STEP, THE OTHER THE LAST IN THE
CAREER OF INTOLERANCE."  REMONSTRANCE, PAR. 9; II MADISON 183, 188. 

FN42  IF IT IS PART OF THE STATE'S FUNCTION TO SUPPLY TO RELIGIOUS
SCHOOLS OR THEIR PATRONS THE SMALLER ITEMS OF EDUCATIONAL EXPENSE,
BECAUSE THE LEGISLATURE MAY SAY THEY PERFORM A PUBLIC FUNCTION, IT IS
HARD TO SEE WHY THE LARGER ONES ALSO MAY NOT BE PAID.  INDEED, IT WOULD
SEEM EVEN MORE PROPER AND NECESSARY FOR THE STATE TO DO THIS.  FOR IF
ONE CLASS OF EXPENDITURES IS JUSTIFIED ON THE GROUND THAT IT SUPPORTS
THE GENERAL CAUSE OF EDUCATION OR BENEFITS THE INDIVIDUAL, OR CAN BE
MADE TO DO SO BY LEGISLATIVE DECLARATION, SO EVEN MORE CERTAINLY WOULD
BE THE OTHER.  TO SUSTAIN PAYMENT FOR TRANSPORTATION TO SCHOOL, FOR
TEXTBOOKS, FOR OTHER ESSENTIAL MATERIALS, OR PERHAPS FOR SCHOOL
LUNCHES, AND NOT FOR WHAT MAKES ALL THESE THINGS EFFECTIVE FOR THEIR
INTENDED END, WOULD BE TO MAKE A PUBLIC FUNCTION OF THE SMALLER ITEMS
AND THEIR CUMULATIVE EFFECT, BUT TO MAKE WHOLLY PRIVATE IN CHARACTER
THE LARGER THINGS WITHOUT WHICH THE SMALLER COULD HAVE NO MEANING OR
USE. 

FN43  "WHEREAS THE GENERAL DIFFUSION OF CHRISTIAN KNOWLEDGE HATH A
NATURAL TENDENCY TO CORRECT THE MORALS OF MEN, RESTRAIN THEIR VICES,
AND PRESERVE THE PEACE OF SOCIETY; WHICH CANNOT BE EFFECTED WITHOUT A
COMPETENT PROVISION FOR LEARNED TEACHERS, WHO MAY BE THEREBY ENABLED TO
DEVOTE THEIR TIME AND ATTENTION TO THE DUTY OF INSTRUCTING SUCH
CITIZENS, AS FROM THEIR CIRCUMSTANCES AND WANT OF EDUCATION, CANNOT
OTHERWISE ATTAIN SUCH KNOWLEDGE; AND IT IS JUDGED THAT SUCH PROVISION
MAY BE MADE BY THE LEGISLATURE, WITHOUT COUNTERACTING THE LIBERAL
PRINCIPLE HERETOFORE ADOPTED AND INTENDED TO BE PRESERVED BY ABOLISHING
ALL DISTINCTIONS OF PRE-EMINENCE AMONGST THE DIFFERENT SOCIETIES OF
COMMUNITIES OF CHRISTIANS; ...."  SUPPLEMENTAL APPENDIX; FOOTE,
SKETCHES OF VIRGINIA (1850) 340. 

FN44  "BECAUSE THE ESTABLISHMENT PROPOSED BY THE BILL IS NOT
REQUISITE FOR THE SUPPORT OF THE CHRISTIAN RELIGION.  TO SAY THAT IT
IS, IS A CONTRADICTION TO THE CHRISTIAN RELIGION ITSELF; FOR EVERY PAGE
OF IT DISAVOWS A DEPENDENCE ON THE POWERS OF THIS WORLD  ....  BECAUSE
THE ESTABLISHMENT IN QUESTION IS NOT NECESSARY FOR THE SUPPORT OF CIVIL
GOVERNMENT  ....  WHAT INFLUENCE IN FACT HAVE ECCLESIASTICAL
ESTABLISHMENTS HAD ON CIVIL SOCIETY?...  IN NO INSTANCE HAVE THEY BEEN
SEEN THE GUARDIANS OF THE LIBERTIES OF THE PEOPLE."  II MADISON 183,
187, 188. 

FN45 "BECAUSE EXPERIENCE WITNESSETH THAT ECCLESIASTICAL
ESTABLISHMENTS, INSTEAD OF MAINTAINING THE PURITY AND EFFICACY OF
RELIGION, HAVE HAD A CONTRARY OPERATION."  II MADISON 183, 187. 

FN46  "AT LEAST LET WARNING BE TAKEN AT THE FIRST FRUITS OF THE
THREATENED INNOVATION.  THE VERY APPEARANCE OF THE BILL HAS TRANSFORMED
THAT 'CHRISTIAN FORBEARANCE, LOVE AND CHARITY,' WHICH OF LATE MUTUALLY
PREVAILED, INTO ANIMOSITIES AND JEALOUSIES, WHICH MAY NOT SOON BE
APPEASED."  II MADISON 183, 189. 

FN47  IN THIS CASE BRIEFS AMICI CURIAE HAVE BEEN FILED ON BEHALF OF
VARIOUS ORGANIZATIONS REPRESENTING THREE RELIGIOUS SECTS, ONE LABOR
UNION, THE AMERICAN CIVIL LIBERTIES UNION, AND THE STATES OF ILLINOIS,
INDIANA, LOUISIANA, MASSACHUSETTS, MICHIGAN AND NEW YORK.  ALL THESE
STATES HAVE LAWS SIMILAR TO NEW JERSEY'S AND ALL OF THEM, WITH ONE
RELIGIOUS SECT, SUPPORT THE CONSTITUTIONALITY OF NEW JERSEY'S ACTION. 
THE OTHERS OPPOSE IT.  MARYLAND AND MISSISSIPPI HAVE SUSTAINED SIMILAR
LEGISLATION.  NOTE 49 INFRA.  NO STATE WITHOUT LEGISLATION OF THIS SORT
HAS FILED AN OPPOSING BRIEF.  BUT AT LEAST SIX STATES HAVE HELD SUCH
ACTION INVALID, NAMELY, DELAWARE, OKLAHOMA, NEW YORK, SOUTH DAKOTA,
WASHINGTON AND WISCONSIN.  NOTE 49 INFRA.  THE NEW YORK RULING WAS
OVERTURNED BY AMENDMENT TO THE STATE CONSTITUTION IN 1938. 
CONSTITUTION OF NEW YORK, ART. XI, 4. 

FURTHERMORE, IN THIS CASE THE NEW JERSEY COURTS DIVIDED, THE SUPREME
COURT HOLDING THE STATUTE AND RESOLUTION INVALID, 132 N.J.L. 98, 39
A.2D 75, THE COURT OF ERRORS AND APPEALS REVERSING THAT DECISION, 133
N.J.L. 350, 44 A.2D 333.  IN BOTH COURTS, AS HERE, THE JUDGES SPLIT,
ONE OF THREE DISSENTING IN THE SUPREME COURT, THREE OF NINE IN THE
COURT OF ERRORS AND APPEALS.  THE DIVISION IS TYPICAL.  SEE THE CASES
CITED IN NOTE 49. 

FN48  SEE THE AUTHORITIES CITED IN NOTE 49; AND SEE NOTE 54. 

FN49  SOME STATE COURTS HAVE SUSTAINED STATUTES GRANTING FREE
TRANSPORTATION OR FREE SCHOOL BOOKS TO CHILDREN ATTENDING
DENOMINATIONAL SCHOOLS ON THE THEORY THAT THE AID WAS A BENEFIT TO THE
CHILD RATHER THAN TO THE SCHOOL.  SEE NICHOLS V. HENRY, 301 KY. 434,
191 S.W.2D 930, WITH WHICH COMPARE SHERRARD V. JEFFERSON COUNTY BOARD
OF EDUCATION, 294 KY. 469, 171 S.W.2D 963; COCHRAN V. BOARD OF
EDUCATION, 168 LA. 1030, 123 SO. 664, AFF'D, 281 U.S. 370; BORDEN V.
BOARD OF EDUCATION, 168 LA. 1005, 123 SO. 655; BOARD OF EDUCATION V.
WHEAT, 174 MD. 314, 199 A. 628; ADAMS V. ST. MARY'S COUNTY, 180 MD.
550, 26 A.2D 377; CHANCE V. STATE TEXTBOOK R. & P. BOARD, 190 MISS. 
453, 200 SO. 706.  SEE ALSO BOWKER V. BAKER, 73 CAL. APP.2D 653, 167
P.2D 256.  OTHER COURTS HAVE HELD SUCH STATUTES UNCONSTITUTIONAL UNDER
STATE CONSTITUTIONS AS AID TO THE SCHOOLS.  JUDD V. BOARD OF EDUCATION,
278 N.Y. 200, 15 N.E.2D 576, BUT SEE NOTE 47 SUPRA; SMITH V. DONAHUE,
202 APP. DIV. 656, 195 N.Y.S. 715; STATE EX REL. TRAUB V. BROWN, 36
DEL. 181, 172 A. 835; GURNEY V. FERGUSON, 190 OKLA. 254, 122 P.2D 1002;
MITCHELL V. CONSOLIDATED SCHOOL DISTRICT, 17 WASH.2D 61, 135 P.2D 79;
VAN STRATEN V. MILQUET, 180 WIS. 109, 192 N.W. 392.  AND CF. HLEBANJA
V. BREWE, 58 S.D. 351, 236 N.W. 296.  AND SINCE MANY STATE
CONSTITUTIONS HAVE PROVISIONS FORBIDDING THE APPROPRIATION OF PUBLIC
FUNDS FOR PRIVATE PURPOSES, IN THESE AND OTHER CASES THE ISSUE WHETHER
THE STATUTE WAS FOR A "PUBLIC" OR "PRIVATE" PURPOSE HAS BEEN PRESENT. 
SEE NOTE (1941) 50 YALE L.J. 917, 925. 

FN50  E.G., GURNEY V. FERGUSON, 190 OKLA. 254, 255, 122 P.2D 1002,
1003; MITCHELL V. CONSOLIDATED SCHOOL DISTRICT, 17 WASH.2D 61, 68, 135
P.2D 79, 82; SMITH V. DONAHUE, 202 APP. DIV. 656, 664, 195 N.Y.S. 715,
722; BOARD OF EDUCATION V. WHEAT, 174 MD. 314, DISSENTING OPINION AT
340, 199 A. 628 AT 639.  THIS IS TRUE WHETHER THE APPROPRIATION AND
PAYMENT ARE IN FORM TO THE INDIVIDUAL OR TO THE INSTITUTION.  IBID.
QUESTIONS OF THIS GRAVITY TURN UPON THE PURPOSE AND EFFECT OF THE
STATE'S EXPENDITURE TO ACCOMPLISH THE FORBIDDEN OBJECT, NOT UPON WHO
RECEIVES THE AMOUNT AND APPLIES IT TO THAT END OR THE FORM AND MANNER
OF THE PAYMENT. 

FN51  THE PAYMENTS HERE AVERAGED ROUGHLY $40.00 A YEAR PER CHILD. 

FN52  SEE PART V. 

FN53  SEE ALSO NOTE 46 SUPRA AND REMONSTRANCE, PAR. 3. 

FN54  THUS EACH BRIEF FILED HERE BY THE SUPPORTERS OF NEW JERSEY'S
ACTION, SEE NOTE 47, NOT ONLY RELIES STRONGLY ON COCHRAN V. BOARD OF
EDUCATION, 281 U.S. 370, BUT EITHER EXPLICITLY OR IN EFFECT MAINTAINS
THAT IT IS CONTROLLING IN THE PRESENT CASE. 

FN55  SEE TEXT AT NOTES 17-19 SUPRA AND AUTHORITIES CITED; ALSO
FOOTE, SKETCHES OF VIRGINIA (1850) C. XV.  MADISON'S ENTIRE THESIS, AS
REFLECTED THROUGHOUT THE REMONSTRANCE AND IN HIS OTHER WRITINGS, AS
WELL AS IN HIS OPPOSITION TO THE FINAL FORM OF THE ASSESSMENT BILL, SEE
NOTE 43, WAS ALTOGETHER INCOMPATIBLE WITH ACCEPTANCE OF GENERAL AND
"NONDISCRIMINATORY" SUPPORT.  SEE BRANT, C. XII. 

FN56  THE PROTECTIONS ARE OF A NATURE WHICH DOES NOT REQUIRE
APPROPRIATIONS SPECIALLY MADE FROM THE PUBLIC TREASURY AND EARMARKED,
AS IS NEW JERSEY'S HERE, PARTICULARLY FOR RELIGIOUS INSTITUTIONS OR
USES.  THE FIRST AMENDMENT DOES NOT EXCLUDE RELIGIOUS PROPERTY OR
ACTIVITIES FROM PROTECTION AGAINST DISORDER OR THE ORDINARY ACCIDENTAL
INCIDENTS OF COMMUNITY LIFE.  IT FORBIDS SUPPORT, NOT PROTECTION FROM
INTERFERENCE OR DESTRUCTION. 

IT IS A MATTER NOT FREQUENTLY RECALLED THAT PRESIDENT GRANT OPPOSED
TAX EXEMPTION OF RELIGIOUS PROPERTY AS LEADING TO A VIOLATION OF THE
PRINCIPLE OF SEPARATION OF CHURCH AND STATE.  SEE PRESIDENT GRANT'S
SEVENTH ANNUAL MESSAGE TO CONGRESS, DECEMBER 7, 1875, IN IX MESSAGES
AND PAPERS OF THE PRESIDENTS (1897) 4288-4289.  GARFIELD, IN A LETTER
ACCEPTING THE NOMINATION FOR THE PRESIDENCY SAID:  "...  IT WOULD BE
UNJUST TO OUR PEOPLE, AND DANGEROUS TO OUR INSTITUTIONS, TO APPLY ANY
PORTION OF THE REVENUES OF THE NATION, OR OF THE STATES, TO THE SUPPORT
OF SECTARIAN SCHOOLS.  THE SEPARATION OF THE CHURCH AND THE STATE IN
EVERYTHING RELATING TO TAXATION SHOULD BE ABSOLUTE."  II THE WORKS OF
JAMES ABRAM GARFIELD (ED. BY HINSDALE, 1883) 783. 

FN57  NEITHER DO WE HAVE HERE A CASE OF RATE-MAKING BY WHICH A PUBLIC
UTILITY EXTENDS REDUCED FARES TO ALL SCHOOL CHILDREN, INCLUDING PATRONS
OF RELIGIOUS SCHOOLS.  WHETHER OR NOT LEGISLATIVE COMPULSION UPON A
PRIVATE UTILITY TO EXTEND SUCH AN ADVANTAGE WOULD BE VALID, OR ITS
EXTENSION BY A MUNICIPALLY OWNED SYSTEM, WE ARE NOT REQUIRED TO
CONSIDER.  IN THE FORMER INSTANCE, AT ANY RATE, AND GENERALLY IF NOT
ALWAYS IN THE LATTER, THE VICE OF USING THE TAXING POWER TO RAISE FUNDS
FOR THE SUPPORT OF RELIGION WOULD NOT BE PRESENT. 

FN58  IT WOULD SEEM AT LEAST A DOUBTFULLY SUFFICIENT BASIS FOR
REASONABLE CLASSIFICATION THAT SOME CHILDREN SHOULD BE EXCLUDED SIMPLY
BECAUSE THE ONLY SCHOOL FEASIBLE FOR THEM TO ATTEND, IN VIEW OF
GEOGRAPHIC OR OTHER SITUATION, MIGHT BE ONE CONDUCTED IN WHOLE OR IN
PART FOR PROFIT.  CF. NOTE 5.    FN59  SEE NOTE 7 SUPRA.  THE
RESOLUTION WAS AS FOLLOWS, ACCORDING TO THE SCHOOL BOARD'S MINUTES READ
IN PROOF:  "THE TRANSPORTATION COMMITTEE RECOMMENDED THE TRANSPORTATION
OF PUPILS OF EWING TO THE TRENTON AND PENNINGTON HIGH SCHOOLS AND
CATHOLIC SCHOOLS BY WAY OF PUBLIC CARRIER AS IN RECENT YEARS.  ON
MOTION OF MR. RALPH RYAN AND MR. M. FRENCH THE SAME WAS ADOPTED."  THE
NEW JERSEY COURT'S HOLDING THAT THE RESOLUTION WAS WITHIN THE AUTHORITY
CONFERRED BY THE STATE STATUTE IS BINDING ON US.  REINMAN V. LITTLE
ROCK, 237 U.S. 171, 176; HADACHECK V. SEBASTIAN, 239 U.S. 394, 414. 

FN60  THE POPULATION OF EWING TOWNSHIP, LOCATED NEAR THE CITY OF
TRENTON, WAS 10,146 ACCORDING TO THE CENSUS OF 1940.  SIXTEENTH CENSUS
OF THE UNITED STATES, POPULATION, VOL. 1, 674. 

FN61  IN THOMAS V. COLLINS, 323 U.S. 516, 530, IT WAS SAID THAT THE
PREFERRED PLACE GIVEN IN OUR SCHEME TO THE GREAT DEMOCRATIC FREEDOMS
SECURED BY THE FIRST AMENDMENT GIVES THEM "A SANCTITY AND A SANCTION
NOT PERMITTING DUBIOUS INTRUSIONS."  CF. REMONSTRANCE, PAR. 3, 9.  AND
IN OTHER CASES IT HAS BEEN HELD THAT THE USUAL PRESUMPTION OF
CONSTITUTIONALITY WILL NOT WORK TO SAVE SUCH LEGISLATIVE EXCURSIONS IN
THIS FIELD.  UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 152,
NOTE 4; SEE WECHSLER, STONE AND THE CONSTITUTION (1946) 46 COL. L. REV.
764, 795 ET SEQ. 

APART FROM THE COURT'S ADMISSION THAT NEW JERSEY'S PRESENT ACTION
APPROACHES THE VERGE OF HER POWER, IT WOULD SEEM THAT A STATUTE,
ORDINANCE OR RESOLUTION WHICH ON ITS FACE SINGLES OUT ONE SECT ONLY BY
NAME FOR ENJOYMENT OF THE SAME ADVANTAGES AS PUBLIC SCHOOLS OR THEIR
STUDENTS, SHOULD BE HELD DISCRIMINATORY ON ITS FACE BY VIRTUE OF THAT
FACT ALONE, UNLESS IT WERE POSITIVELY SHOWN THAT NO OTHER SECTS SOUGHT
OR WERE AVAILABLE TO RECEIVE THE SAME ADVANTAGES. 

                    APPENDIX. 

                   MEMORIAL AND REMONSTRANCE AGAINST

                        RELIGIOUS ASSESSMENTS. 

                 TO THE HONORABLE THE GENERAL ASSEMBLY

                                  OF

                 THE COMMONWEALTH OF VIRGINIA. 

           A MEMORIAL AND REMONSTRANCE. 

WE, THE SUBSCRIBERS, CITIZENS OF THE SAID COMMONWEALTH, HAVING TAKEN
INTO SERIOUS CONSIDERATION, A BILL PRINTED BY ORDER OF THE LAST SESSION
OF GENERAL ASSEMBLY, ENTITLED "A BILL ESTABLISHING A PROVISION FOR
TEACHERS OF THE CHRISTIAN RELIGION," AND CONCEIVING THAT THE SAME, IF
FINALLY ARMED WITH THE SANCTIONS OF A LAW, WILL BE A DANGEROUS ABUSE OF
POWER, ARE BOUND AS FAITHFUL MEMBERS OF A FREE STATE, TO REMONSTRATE
AGAINST IT, AND TO DECLARE THE REASONS BY WHICH WE ARE DETERMINED.  WE
REMONSTRATE AGAINST THE SAID BILL, 

1.  BECAUSE WE HOLD IT FOR A FUNDAMENTAL AND UNDENIABLE TRUTH, "THAT
RELIGION OR THE DUTY WHICH WE OWE TO OUR CREATOR AND THE MANNER OF
DISCHARGING IT, CAN BE DIRECTED ONLY BY REASON AND CONVICTION, NOT BY
FORCE OR VIOLENCE."  THE RELIGION THEN OF EVERY MAN MUST BE LEFT TO THE
CONVICTION AND CONSCIENCE OF EVERY MAN; AND IT IS THE RIGHT OF EVERY
MAN TO EXERCISE IT AS THESE MAY DICTATE.  THIS RIGHT IS IN ITS NATURE
AN UNALIENABLE RIGHT.  IT IS UNALIENABLE; BECAUSE THE OPINIONS OF MEN,
DEPENDING ONLY ON THE EVIDENCE CONTEMPLATED BY THEIR OWN MINDS, CANNOT
FOLLOW THE DICTATES OF OTHER MEN:  IT IS UNALIENABLE ALSO; BECAUSE WHAT
IS HERE A RIGHT TOWARDS MEN, IS A DUTY TOWARDS THE CREATOR.  IT IS THE
DUTY OF EVERY MAN TO RENDER TO THE CREATOR SUCH HOMAGE, AND SUCH ONLY,
AS HE BELIEVES TO BE ACCEPTABLE TO HIM.  THIS DUTY IS PRECEDENT BOTH IN
ORDER OF TIME AND DEGREE OF OBLIGATION, TO THE CLAIMS OF CIVIL
SOCIETY.  BEFORE ANY MAN CAN BE CONSIDERED AS A MEMBER OF CIVIL
SOCIETY, HE MUST BE CONSIDERED AS A SUBJECT OF THE GOVERNOR OF THE
UNIVERSE:  AND IF A MEMBER OF CIVIL SOCIETY, WHO ENTERS INTO ANY
SUBORDINATE ASSOCIATION, MUST ALWAYS DO IT WITH A RESERVATION OF HIS
DUTY TO THE GENERAL AUTHORITY; MUCH MORE MUST EVERY MAN WHO BECOMES A
MEMBER OF ANY PARTICULAR CIVIL SOCIETY, DO IT WITH A SAVING OF HIS
ALLEGIANCE TO THE UNIVERSAL SOVEREIGN.  WE MAINTAIN THEREFORE THAT IN
MATTERS OF RELIGION, NO MAN'S RIGHT IS ABRIDGED BY THE INSTITUTION OF
CIVIL SOCIETY, AND THAT RELIGION IS WHOLLY EXEMPT FROM ITS COGNIZANCE. 
TRUE IT IS, THAT NO OTHER RULE EXISTS, BY WHICH ANY QUESTION WHICH MAY
DIVIDE A SOCIETY, CAN BE ULTIMATELY DETERMINED, BUT THE WILL OF THE
MAJORITY; BUT IT IS ALSO TRUE, THAT THE MAJORITY MAY TRESPASS ON THE
RIGHTS OF THE MINORITY. 

2.  BECAUSE IF RELIGION BE EXEMPT FROM THE AUTHORITY OF THE SOCIETY
AT LARGE, STILL LESS CAN IT BE SUBJECT TO THAT OF THE LEGISLATIVE
BODY.  THE LATTER ARE BUT THE CREATURES AND VICEGERENTS OF THE FORMER. 
THEIR JURISDICTION IS BOTH DERIVATIVE AND LIMITED:  IT IS LIMITED WITH
REGARD TO THE CO-ORDINATE DEPARTMENTS, MORE NECESSARILY IS IT LIMITED
WITH REGARD TO THE CONSTITUENTS.  THE PRESERVATION OF A FREE GOVERNMENT
REQUIRES NOT MERELY, THAT THE METES AND BOUNDS WHICH SEPARATE EACH
DEPARTMENT OF POWER MAY BE INVARIABLY MAINTAINED; BUT MORE ESPECIALLY,
THAT NEITHER OF THEM BE SUFFERED TO OVERLEAP THE GREAT BARRIER WHICH
DEFENDS THE RIGHTS OF THE PEOPLE.  THE RULERS WHO ARE GUILTY OF SUCH AN
ENCROACHMENT, EXCEED THE COMMISSION FROM WHICH THEY DERIVE THEIR
AUTHORITY, AND ARE TYRANTS.  THE PEOPLE WHO SUBMIT TO IT ARE GOVERNED
BY LAWS MADE NEITHER BY THEMSELVES, NOR BY AN AUTHORITY DERIVED FROM
THEM, AND ARE SLAVES. 

3.  BECAUSE, IT IS PROPER TO TAKE ALARM AT THE FIRST EXPERIMENT ON
OUR LIBERTIES.  WE HOLD THIS PRUDENT JEALOUSY TO BE THE FIRST DUTY OF
CITIZENS, AND ONE OF (THE) NOBLEST CHARACTERISTICS OF THE LATE
REVOLUTION.  THE FREEMEN OF AMERICA DID NOT WAIT TILL USURPED POWER HAD
STRENGTHENED ITSELF BY EXERCISE, AND ENTANGLED THE QUESTION IN
PRECEDENTS.  THEY SAW ALL THE CONSEQUENCES IN THE PRINCIPLE, AND THEY
AVOIDED THE CONSEQUENCES BY DENYING THE PRINCIPLE.  WE REVERE THIS
LESSON TOO MUCH, SOON TO FORGET IT.  WHO DOES NOT SEE THAT THE SAME
AUTHORITY WHICH CAN ESTABLISH CHRISTIANITY, IN EXCLUSION OF ALL OTHER
RELIGIONS, MAY ESTABLISH WITH THE SAME EASE ANY PARTICULAR SECT OF
CHRISTIANS, IN EXCLUSION OF ALL OTHER SECTS?  THAT THE SAME AUTHORITY
WHICH CAN FORCE A CITIZEN TO CONTRIBUTE THREE PENCE ONLY OF HIS
PROPERTY FOR THE SUPPORT OF ANY ONE ESTABLISHMENT, MAY FORCE HIM TO
CONFORM TO ANY OTHER ESTABLISHMENT IN ALL CASES WHATSOEVER? 

4.  BECAUSE, THE BILL VIOLATES THAT EQUALITY WHICH OUGHT TO BE THE
BASIS OF EVERY LAW, AND WHICH IS MORE INDISPENSIBLE, IN PROPORTION AS
THE VALIDITY OR EXPEDIENCY OF ANY LAW IS MORE LIABLE TO BE IMPEACHED. 
IF "ALL MEN ARE BY NATURE EQUALLY FREE AND INDEPENDENT," ALL MEN ARE TO
BE CONSIDERED AS ENTERING INTO SOCIETY ON EQUAL CONDITIONS; AS
RELINQUISHING NO MORE, AND THEREFORE RETAINING NO LESS, ONE THAN
ANOTHER, OF THEIR NATURAL RIGHTS.  ABOVE ALL ARE THEY TO BE CONSIDERED
AS RETAINING AN "EQUAL TITLE TO THE FREE EXERCISE OF RELIGION ACCORDING
TO THE DICTATES OF CONSCIENCE".  WHILST WE ASSERT FOR OURSELVES A
FREEDOM TO EMBRACE, TO PROFESS AND TO OBSERVE THE RELIGION WHICH WE
BELIEVE TO BE OF DIVINE ORIGIN, WE CANNOT DENY AN EQUAL FREEDOM TO
THOSE WHOSE MINDS HAVE NOT YET YIELDED TO THE EVIDENCE WHICH HAS
CONVINCED US.  IF THIS FREEDOM BE ABUSED, IT IS AN OFFENCE AGAINST GOD,
NOT AGAINST MAN:  TO GOD, THEREFORE, NOT TO MEN, MUST AN ACCOUNT OF IT
BE RENDERED.  AS THE BILL VIOLATES EQUALITY BY SUBJECTING SOME TO
PECULIAR BURDENS; SO IT VIOLATES THE SAME PRINCIPLE, BY GRANTING TO
OTHERS PECULIAR EXEMPTIONS.  ARE THE QUAKERS AND MENONISTS THE ONLY
UNWARANTABLE?  CAN THEIR PIETY ALONE BE INTRUSTED WITH THE CARE OF
PUBLIC WORSHIP?  OUGHT THEIR RELIGIONS TO BE ENDOWED ABOVE ALL OTHERS,
WITH EXTRAORDINARY PRIVILEGES, BY WHICH PROSELYTES MAY BE ENTICED FROM
ALL OTHERS?  WE THINK TOO FAVORABLY OF THE JUSTICE AND GOOD SENSE OF
THESE DENOMINATIONS, TO BELIEVE THAT THEY EITHER COVET PREEMINENCIES
OVER THEIR FELLOW CITIZENS, OR THAT THEY WILL BE SEDUCED BY THEM, FROM
THE COMMON OPPOSITION TO THE MEASURE. 

5.  BECAUSE THE BILL IMPLIES EITHER THAT THE CIVIL MAGISTRATE IS A
COMPETENT JUDGE OF RELIGIOUS TRUTH; OR THAT HE MAY EMPLOY RELIGION AS
AN ENGINE OF CIVIL POLICY.  THE FIRST IS AN ARROGANT PRETENSION
FALSIFIED BY THE CONTRADICTORY OPINIONS OF RULERS IN ALL AGES, AND
THROUGHOUT THE WORLD:  THE SECOND AN UNHALLOWED PERVERSION OF THE MEANS
OF SALVATION. 

6.  BECAUSE THE ESTABLISHMENT PROPOSED BY THE BILL IS NOT REQUISITE
FOR THE SUPPORT OF THE CHRISTIAN RELIGION.  TO SAY THAT IT IS, IS A
CONTRADICTION TO THE CHRISTIAN RELIGION ITSELF; FOR EVERY PAGE OF IT
DISAVOWS A DEPENDENCE ON THE POWERS OF THIS WORLD:  IT IS A
CONTRADICTION TO FACT; FOR IT IS KNOWN THAT THIS RELIGION BOTH EXISTED
AND FLOURISHED, NOT ONLY WITHOUT THE SUPPORT OF HUMAN LAWS, BUT IN
SPITE OF EVERY OPPOSITION FROM THEM; AND NOT ONLY DURING THE PERIOD OF
MIRACULOUS AID, BUT LONG AFTER IT HAD BEEN LEFT TO ITS OWN EVIDENCE,
AND THE ORDINARY CARE OF PROVIDENCE:  NAY, IT IS A CONTRADICTION IN
TERMS; FOR A RELIGION NOT INVENTED BY HUMAN POLICY, MUST HAVE
PREEXISTED AND BEEN SUPPORTED, BEFORE IT WAS ESTABLISHED BY HUMAN
POLICY.  IT IS MOREOVER TO WEAKEN IN THOSE WHO PROFESS THIS RELIGION A
PIOUS CONFIDENCE IN ITS INNATE EXCELLENCE, AND THE PATRONAGE OF ITS
AUTHOR; AND TO FOSTER IN THOSE WHO STILL REJECT IT, A SUSPICION THAT
ITS FRIENDS ARE TOO CONSCIOUS OF ITS FALLACIES, TO TRUST IT TO ITS OWN
MERITS. 

7.  BECAUSE EXPERIENCE WITNESSETH THAT ECCLESIASTICAL ESTABLISHMENTS,
INSTEAD OF MAINTAINING THE PURITY AND EFFICACY OF RELIGION, HAVE HAD A
CONTRARY OPERATION.  DURING ALMOST FIFTEEN CENTURIES, HAS THE LEGAL
ESTABLISHMENT OF CHRISTIANITY BEEN ON TRIAL.  WHAT HAVE BEEN ITS
FRUITS?  MORE OR LESS IN ALL PLACES, PRIDE AND INDOLENCE IN THE CLERGY;
IGNORANCE AND SERVILITY IN THE LAITY; IN BOTH, SUPERSTITION, BIGOTRY
AND PERSECUTION.  ENQUIRE OF THE TEACHERS OF CHRISTIANITY FOR THE AGES
IN WHICH IT APPEARED IN ITS GREATEST LUSTRE; THOSE OF EVERY SECT, POINT
TO THE AGES PRIOR TO ITS INCORPORATION WITH CIVIL POLICY.  PROPOSE A
RESTORATION OF THIS PRIMITIVE STATE IN WHICH ITS TEACHERS DEPENDED ON
THE VOLUNTARY REWARDS OF THEIR FLOCKS; MANY OF THEM PREDICT ITS
DOWNFALL.  ON WHICH SIDE OUGHT THEIR TESTIMONY TO HAVE GREATEST WEIGHT,
WHEN FOR OR WHEN AGAINST THEIR INTEREST? 

8.  BECAUSE THE ESTABLISHMENT IN QUESTION IS NOT NECESSARY FOR THE
SUPPORT OF CIVIL GOVERNMENT.  IF IT BE URGED AS NECESSARY FOR THE
SUPPORT OF CIVIL GOVERNMENT ONLY AS IT IS A MEANS OF SUPPORTING
RELIGION, AND IT BE NOT NECESSARY FOR THE LATTER PURPOSE, IT CANNOT BE
NECESSARY FOR THE FORMER.  IF RELIGION BE NOT WITHIN (THE) COGNIZANCE
OF CIVIL GOVERNMENT, HOW CAN ITS LEGAL ESTABLISHMENT BE SAID TO BE
NECESSARY TO CIVIL GOVERNMENT?  WHAT INFLUENCE IN FACT HAVE
ECCLESIASTICAL ESTABLISHMENTS HAD ON CIVIL SOCIETY?  IN SOME INSTANCES
THEY HAVE BEEN SEEN TO ERECT A SPIRITUAL TYRANNY ON THE RUINS OF CIVIL
AUTHORITY; IN MANY INSTANCES THEY HAVE BEEN SEEN UPHOLDING THE THRONES
OF POLITICAL TYRANNY; IN NO INSTANCE HAVE THEY BEEN SEEN THE GUARDIANS
OF THE LIBERTIES OF THE PEOPLE.  RULERS WHO WISHED TO SUBVERT THE
PUBLIC LIBERTY, MAY HAVE FOUND AN ESTABLISHED CLERGY CONVENIENT
AUXILIARIES.  A JUST GOVERNMENT, INSTITUTED TO SECURE & PERPETUATE IT,
NEEDS THEM NOT.  SUCH A GOVERNMENT WILL BE BEST SUPPORTED BY PROTECTING
EVERY CITIZEN IN THE ENJOYMENT OF HIS RELIGION WITH THE SAME EQUAL HAND
WHICH PROTECTS HIS PERSON AND HIS PROPERTY; BY NEITHER INVADING THE
EQUAL RIGHTS OF ANY SECT, NOR SUFFERING ANY SECT TO INVADE THOSE OF
ANOTHER. 

9.  BECAUSE THE PROPOSED ESTABLISHMENT IS A DEPARTURE FROM THAT
GENEROUS POLICY, WHICH, OFFERING AN ASYLUM TO THE PERSECUTED AND
OPPRESSED OF EVERY NATION AND RELIGION, PROMISED A LUSTRE TO OUR
COUNTRY, AND AN ACCESSION TO THE NUMBER OF ITS CITIZENS.  WHAT A
MELANCHOLY MARK IS THE BILL OF SUDDEN DEGENERACY?  INSTEAD OF HOLDING
FORTH AN ASYLUM TO THE PERSECUTED, IT IS ITSELF A SIGNAL OF
PERSECUTION.  IT DEGRADES FROM THE EQUAL RANK OF CITIZENS ALL THOSE
WHOSE OPINIONS IN RELIGION DO NOT BEND TO THOSE OF THE LEGISLATIVE
AUTHORITY.  DISTANT AS IT MAY BE, IN ITS PRESENT FORM, FROM THE
INQUISITION IT DIFFERS FROM IT ONLY IN DEGREE.  THE ONE IS THE FIRST
STEP, THE OTHER THE LAST IN THE CAREER OF INTOLERANCE.  THE MAGNANIMOUS
SUFFERER UNDER THIS CRUEL SCOURGE IN FOREIGN REGIONS, MUST VIEW THE
BILL AS A BEACON ON OUR COAST, WARNING HIM TO SEEK SOME OTHER HAVEN,
WHERE LIBERTY AND PHILANTHROPHY IN THEIR DUE EXTENT MAY OFFER A MORE
CERTAIN REPOSE FROM HIS TROUBLES. 

10.  BECAUSE, IT WILL HAVE A LIKE TENDENCY TO BANISH OUR CITIZENS. 
THE ALLUREMENTS PRESENTED BY OTHER SITUATIONS ARE EVERY DAY THINNING
THEIR NUMBER.  TO SUPERADD A FRESH MOTIVE TO EMIGRATION, BY REVOKING
THE LIBERTY WHICH THEY NOW ENJOY, WOULD BE THE SAME SPECIES OF FOLLY
WHICH HAS DISHONOURED AND DEPOPULATED FLOURISHING KINGDOMS. 

11.  BECAUSE, IT WILL DESTROY THAT MODERATION AND HARMONY WHICH THE
FORBEARANCE OF OUR LAWS TO INTERMEDDLE WITH RELIGION, HAS PRODUCED
AMONGST ITS SEVERAL SECTS.  TORRENTS OF BLOOD HAVE BEEN SPILT IN THE
OLD WORLD, BY VAIN ATTEMPTS OF THE SECULAR ARM TO EXTINGUISH RELIGIOUS
DISCORD, BY PROSCRIBING ALL DIFFERENCE IN RELIGIOUS OPINIONS.  TIME HAS
AT LENGTH REVEALED THE TRUE REMEDY.  EVERY RELAXATION OF NARROW AND
RIGOROUS POLICY, WHEREVER IT HAS BEEN TRIED, HAS BEEN FOUND TO ASSUAGE
THE DISEASE.  THE AMERICAN THEATRE HAS EXHIBITED PROOFS, THAT EQUAL AND
COMPLEAT LIBERTY, IF IT DOES NOT WHOLLY ERADICATE IT, SUFFICIENTLY
DESTROYS ITS MALIGNANT INFLUENCE ON THE HEALTH AND PROSPERITY OF THE
STATE.  IF WITH THE SALUTARY EFFECTS OF THIS SYSTEM UNDER OUR OWN EYES,
WE BEGIN TO CONTRACT THE BONDS OF RELIGIOUS FREEDOM, WE KNOW NO NAME
THAT WILL TOO SEVERELY REPROACH OUR FOLLY.  AT LEAST LET WARNING BE
TAKEN AT THE FIRST FRUITS OF THE THREATENED INNOVATION.  THE VERY
APPEARANCE OF THE BILL HAS TRANSFORMED THAT "CHRISTIAN FORBEARANCE,
LOVE AND CHARITY," WHICH OF LATE MUTUALLY PREVAILED, INTO ANIMOSITIES
AND JEALOUSIES, WHICH MAY NOT SOON BE APPEASED.  WHAT MISCHIEFS MAY NOT
BE DREADED SHOULD THIS ENEMY TO THE PUBLIC QUIET BE ARMED WITH THE
FORCE OF A LAW?    12.  BECAUSE, THE POLICY OF THE BILL IS ADVERSE TO
THE DIFFUSION OF THE LIGHT OF CHRISTIANITY.  THE FIRST WISH OF THOSE
WHO ENJOY THIS PRECIOUS GIFT, OUGHT TO BE THAT IT MAY BE IMPARTED TO
THE WHOLE RACE OF MANKIND.  COMPARE THE NUMBER OF THOSE WHO HAVE AS YET
RECEIVED IT WITH THE NUMBER STILL REMAINING UNDER THE DOMINION OF FALSE
RELIGIONS; AND HOW SMALL IS THE FORMER.  DOES THE POLICY OF THE BILL
TEND TO LESSEN THE DISPROPORTION?  NO; IT AT ONCE DISCOURAGES THOSE WHO
ARE STRANGERS TO THE LIGHT OF (REVELATION) FROM COMING INTO THE REGION
OF IT; AND COUNTENANCES, BY EXAMPLE THE NATIONS WHO CONTINUE IN
DARKNESS, IN SHUTTING OUT THOSE WHO MIGHT CONVEY IT TO THEM.  INSTEAD
OF LEVELLING AS FAR AS POSSIBLE, EVERY OBSTACLE TO THE VICTORIOUS
PROGRESS OF TRUTH, THE BILL WITH AN IGNOBLE AND UNCHRISTIAN TIMIDITY
WOULD CIRCUMSCRIBE IT, WITH A WALL OF DEFENCE, AGAINST THE
ENCROACHMENTS OF ERROR. 

13.  BECAUSE ATTEMPTS TO ENFORCE BY LEGAL SANCTIONS, ACTS OBNOXIOUS
TO SO GREAT A PROPORTION OF CITIZENS, TEND TO ENERVATE THE LAWS IN
GENERAL, AND TO SLACKEN THE BANDS OF SOCIETY.  IF IT BE DIFFICULT TO
EXECUTE ANY LAW WHICH IS NOT GENERALLY DEEMED NECESSARY OR SALUTARY,
WHAT MUST BE THE CASE WHERE IT IS DEEMED INVALID AND DANGEROUS?  AND
WHAT MAY BE THE EFFECT OF SO STRIKING AN EXAMPLE OF IMPOTENCY IN THE
GOVERNMENT, ON ITS GENERAL AUTHORITY. 

14.  BECAUSE A MEASURE OF SUCH SINGULAR MAGNITUDE AND DELICACY OUGHT
NOT TO BE IMPOSED, WITHOUT THE CLEAREST EVIDENCE THAT IT IS CALLED FOR
BY A MAJORITY OF CITIZENS:  AND NO SATISFACTORY METHOD IS YET PROPOSED
BY WHICH THE VOICE OF THE MAJORITY IN THIS CASE MAY BE DETERMINED, OR
ITS INFLUENCE SECURED.  "THE PEOPLE OF THE RESPECTIVE COUNTIES ARE
INDEED REQUESTED TO SIGNIFY THEIR OPINION RESPECTING THE ADOPTION OF
THE BILL TO THE NEXT SESSION OF ASSEMBLY."  BUT THE REPRESENTATION MUST
BE MADE EQUAL, BEFORE THE VOICE EITHER OF THE REPRESENTATIVES OR OF THE
COUNTIES, WILL BE THAT OF THE PEOPLE.  OUR HOPE IS THAT NEITHER OF THE
FORMER WILL, AFTER DUE CONSIDERATION, ESPOUSE THE DANGEROUS PRINCIPLE
OF THE BILL.  SHOULD THE EVENT DISAPPOINT US, IT WILL STILL LEAVE US IN
FULL CONFIDENCE, THAT A FAIR APPEAL TO THE LATTER WILL REVERSE THE
SENTENCE AGAINST OUR LIBERTIES. 

15.  BECAUSE, FINALLY, "THE EQUAL RIGHT OF EVERY CITIZEN TO THE FREE
EXERCISE OF HIS RELIGION ACCORDING TO THE DICTATES OF CONSCIENCE" IS
HELD BY THE SAME TENURE WITH ALL OUR OTHER RIGHTS.  IF WE RECUR TO ITS
ORIGIN, IT IS EQUALLY THE GIFT OF NATURE; IF WE WEIGH ITS IMPORTANCE,
IT CANNOT BE LESS DEAR TO US; IF WE CONSULT THE DECLARATION OF THOSE
RIGHTS WHICH PERTAIN TO THE GOOD PEOPLE OF VIRGINIA, AS THE "BASIS AND
FOUNDATION OF GOVERNMENT," IT IS ENUMERATED WITH EQUAL SOLEMNITY, OR
RATHER STUDIED EMPHASIS.  EITHER THEN, WE MUST SAY, THAT THE WILL OF
THE LEGISLATURE IS THE ONLY MEASURE OF THEIR AUTHORITY; AND THAT IN THE
PLENITUDE OF THIS AUTHORITY, THEY MAY SWEEP AWAY ALL OUR FUNDAMENTAL
RIGHTS; OR, THAT THEY ARE BOUND TO LEAVE THIS PARTICULAR RIGHT
UNTOUCHED AND SACRED:  EITHER WE MUST SAY, THAT THEY MAY CONTROUL THE
FREEDOM OF THE PRESS, MAY ABOLISH THE TRIAL BY JURY, MAY SWALLOW UP THE
EXECUTIVE AND JUDICIARY POWERS OF THE STATE; NAY THAT THEY MAY DESPOIL
US OF OUR VERY RIGHT OF SUFFRAGE, AND ERECT THEMSELVES INTO AN
INDEPENDENT AND HEREDITARY ASSEMBLY:  OR WE MUST SAY, THAT THEY HAVE NO
AUTHORITY TO ENACT INTO LAW THE BILL UNDER CONSIDERATION.  WE THE
SUBSCRIBERS SAY, THAT THE GENERAL ASSEMBLY OF THIS COMMONWEALTH HAVE NO
SUCH AUTHORITY:  AND THAT NO EFFORT MAY BE OMITTED ON OUR PART AGAINST
SO DANGEROUS AN USURPATION, WE OPPOSE TO IT, THIS REMONSTRANCE;
EARNESTLY PRAYING, AS WE ARE IN DUTY BOUND, THAT THE SUPREME LAWGIVER
OF THE UNIVERSE, BY ILLUMINATING THOSE TO WHOM IT IS ADDRESSED, MAY ON
THE ONE HAND, TURN THEIR COUNCILS FROM EVERY ACT WHICH WOULD AFFRONT
HIS HOLY PREROGATIVE, OR VIOLATE THE TRUST COMMITTED TO THEM:  AND ON
THE OTHER, GUIDE THEM INTO EVERY MEASURE WHICH MAY BE WORTHY OF HIS
(BLESSING, MAY REDOUND TO THEIR OWN PRAISE, AND MAY ESTABLISH MORE
FIRMLY THE LIBERTIES, THE PROSPERITY, AND THE HAPPINESS OF THE
COMMONWEALTH. 

                                      II MADISON, 183-191. 

                        SUPPLEMENTAL APPENDIX. 

            A BILL ESTABLISHING A PROVISION FOR TEACHERS OF

                       THE CHRISTIAN RELIGION. 

WHEREAS THE GENERAL DIFFUSION OF CHRISTIAN KNOWLEDGE HATH A NATURAL
TENDENCY TO CORRECT THE MORALS OF MEN, RESTRAIN THEIR VICES, AND
PRESERVE THE PEACE OF SOCIETY; WHICH CANNOT BE EFFECTED WITHOUT A
COMPETENT PROVISION FOR LEARNED TEACHERS, WHO MAY BE THEREBY ENABLED TO
DEVOTE THEIR TIME AND ATTENTION TO THE DUTY OF INSTRUCTING SUCH
CITIZENS, AS FROM THEIR CIRCUMSTANCES AND WANT OF EDUCATION, CANNOT
OTHERWISE ATTAIN SUCH KNOWLEDGE; AND IT IS JUDGED THAT SUCH PROVISION
MAY BE MADE BY THE LEGISLATURE, WITHOUT COUNTERACTING THE LIBERAL
PRINCIPLE HERETOFORE ADOPTED AND INTENDED TO BE PRESERVED BY ABOLISHING
ALL DISTINCTIONS OF PRE-EMINENCE AMONGST THE DIFFERENT SOCIETIES OR
COMMUNITIES OF CHRISTIANS; 

BE IT THEREFORE ENACTED BY THE GENERAL ASSEMBLY, THAT FOR THE SUPPORT
OF CHRISTIAN TEACHERS, PER CENTUM ON THE AMOUNT, OR    IN THE POUND ON
THE SUM PAYABLE FOR TAX ON THE PROPERTY WITHIN THIS COMMONWEALTH, IS
HEREBY ASSESSED, AND SHALL BE PAID BY EVERY PERSON CHARGEABLE WITH THE
SAID TAX AT THE TIME THE SAME SHALL BECOME DUE; AND THE SHERIFFS OF THE
SEVERAL COUNTIES SHALL HAVE POWER TO LEVY AND COLLECT THE SAME IN THE
SAME MANNER AND UNDER THE LIKE RESTRICTIONS AND LIMITATIONS, AS ARE OR
MAY BE PRESCRIBED BY THE LAWS FOR RAISING THE REVENUES OF THIS STATE. 

AND BE IT ENACTED, THAT FOR EVERY SUM SO PAID, THE SHERIFF OR
COLLECTOR SHALL GIVE A RECEIPT, EXPRESSING THEREIN TO WHAT SOCIETY OF
CHRISTIANS THE PERSON FROM WHOM HE MAY RECEIVE THE SAME SHALL DIRECT
THE MONEY TO BE PAID, KEEPING A DISTINCT ACCOUNT THEREOF IN HIS BOOKS. 
THE SHERIFF OF EVERY COUNTY, SHALL, ON OR BEFORE THE    DAY OF    IN
EVERY YEAR, RETURN TO THE COURT, UPON OATH, TWO ALPHABETICAL LISTS OF
THE PAYMENTS TO HIM MADE, DISTINGUISHING IN COLUMNS OPPOSITE TO THE
NAMES OF THE PERSONS WHO SHALL HAVE PAID THE SAME, THE SOCIETY TO WHICH
THE MONEY SO PAID WAS BY THEM APPROPRIATED; AND ONE COLUMN FOR THE
NAMES WHERE NO APPROPRIATION SHALL BE MADE.  ONE OF WHICH LISTS, AFTER
BEING RECORDED IN A BOOK TO BE KEPT FOR THAT PURPOSE, SHALL BE FILED BY
THE CLERK IN HIS OFFICE; THE OTHER SHALL BY THE SHERIFF BE FIXED UP IN
THE COURT-HOUSE, THERE TO REMAIN FOR THE INSPECTION OF ALL CONCERNED. 
AND THE SHERIFF, AFTER DEDUCTING FIVE PER CENTUM FOR THE COLLECTION,
SHALL FORTHWITH PAY TO SUCH PERSON OR PERSONS AS SHALL BE APPOINTED TO
RECEIVE THE SAME BY THE VESTRY, ELDERS, OR DIRECTORS, HOWEVER
DENOMINATED OF EACH SUCH SOCIETY, THE SUM SO STATED TO BE DUE TO THAT
SOCIETY; OR IN DEFAULT THEREOF, UPON THE MOTION OF SUCH PERSON OR
PERSONS TO THE NEXT OR ANY SUCCEEDING COURT, EXECUTION SHALL BE AWARDED
FOR THE SAME AGAINST THE SHERIFF AND HIS SECURITY, HIS AND THEIR
EXECUTORS OR ADMINISTRATORS; PROVIDED THAT TEN DAYS PREVIOUS NOTICE BE
GIVEN OF SUCH MOTION.  AND UPON EVERY SUCH EXECUTION, THE OFFICER
SERVING THE SAME SHALL PROCEED TO IMMEDIATE SALE OF THE ESTATE TAKEN,
AND SHALL NOT ACCEPT OF SECURITY FOR PAYMENT AT THE END OF THREE
MONTHS, NOR TO HAVE THE GOODS FORTHCOMING AT THE DAY OF SALE; FOR HIS
BETTER DIRECTION WHEREIN, THE CLERK SHALL ENDORSE UPON EVERY SUCH
EXECUTION THAT NO SECURITY OF ANY KIND SHALL BE TAKEN. 

AND BE IT FURTHER ENACTED, THAT THE MONEY TO BE RAISED BY VIRTUE OF
THIS ACT, SHALL BE BY THE VESTRIES, ELDERS, OR DIRECTORS OF EACH
RELIGIOUS SOCIETY, APPROPRIATED TO A PROVISION FOR A MINISTER OR
TEACHER OF THE GOSPEL OF THEIR DENOMINATION, OR THE PROVIDING PLACES OF
DIVINE WORSHIP, AND TO NONE OTHER USE WHATSOEVER; EXCEPT IN THE
DENOMINATIONS OF QUAKERS AND MENONISTS, WHO MAY RECEIVE WHAT IS
COLLECTED FROM THEIR MEMBERS, AND PLACE IT IN THEIR GENERAL FUND, TO BE
DISPOSED OF IN A MANNER WHICH THEY SHALL THINK BEST CALCULATED TO
PROMOTE THEIR PARTICULAR MODE OF WORSHIP. 

AND BE IT ENACTED, THAT ALL SUMS WHICH AT THE TIME OF PAYMENT TO THE
SHERIFF OR COLLECTOR MAY NOT BE APPROPRIATED BY THE PERSON PAYING THE
SAME, SHALL BE ACCOUNTED FOR WITH THE COURT IN MANNER AS BY THIS ACT IS
DIRECTED; AND AFTER DEDUCTING FOR HIS COLLECTION, THE SHERIFF SHALL PAY
THE AMOUNT THEREOF (UPON ACCOUNT CERTIFIED BY THE COURT TO THE AUDITORS
OF PUBLIC ACCOUNTS, AND BY THEM TO THE TREASURER) INTO THE PUBLIC
TREASURY, TO BE DISPOSED OF UNDER THE DIRECTION OF THE GENERAL
ASSEMBLY, FOR THE ENCOURAGEMENT OF SEMINARIES OF LEARNING WITHIN THE
COUNTIES WHENCE SUCH SUMS SHALL ARISE, AND TO NO OTHER USE OR PURPOSE
WHATSOEVER. 

THIS ACT SHALL COMMENCE, AND BE IN FORCE, FROM AND AFTER THE    DAY
OF    IN THE YEAR 

A COPY FROM THE ENGROSSED BILL. 

                                   JOHN BECKLEY, C.H.D. 

WASHINGTON MSS.  (PAPERS OF GEORGE WASHINGTON, VOL. 231); LIBRARY OF
CONGRESS* . 

*THIS COPY OF THE ASSESSMENT BILL IS FROM ONE OF THE HANDBILLS WHICH
ON DECEMBER 24, 1784, WHEN THE THIRD READING OF THE BILL WAS POSTPONED,
WERE ORDERED DISTRIBUTED TO THE VIRGINIA COUNTIES BY THE HOUSE OF
DELEGATES.  SEE JOURNAL OF THE VIRGINIA HOUSE OF DELEGATES, DECEMBER
24, 1784; ECKENRODE, 102-103.  THE BILL IS THEREFORE IN ITS FINAL FORM,
FOR IT NEVER AGAIN REACHED THE FLOOR OF THE HOUSE.  ECKENRODE, 113. 
..END :






















UNITED PUBLIC WORKERS V. MITCHELL, 330 U.S. 75 


NO. 20.  ARGUED DECEMBER 3, 1945.  REARGUED OCTOBER 17, 1946.  - DECIDED
FEBRUARY 10, 1947.  - 56 F.SUPP.  621, AFFIRMED. 


1.  UNDER SEC. 3 OF THE ACT OF AUGUST 24, 1937, 50 STAT. 752, 28
U.S.C. SEC. 380A, A DIRECT APPEAL TO THIS COURT WAS TAKEN FROM A
JUDGMENT OF A DISTRICT COURT OF THREE JUDGES DENYING AN INJUNCTION IN A
CASE INVOLVING THE CONSTITUTIONALITY OF A FEDERAL STATUTE.  THE CASE
WAS NOT DOCKETED IN THIS COURT UNTIL AFTER 60 DAYS FROM THE TIME THE
APPEAL WAS ALLOWED.  THE STEPS PRESCRIBED BY RULE 11 OF THIS COURT FOR
OBTAINING A DISMISSAL WERE NOT TAKEN BY THE APPELLEES.  HELD: THIS
COURT HAS JURISDICTION OF THE APPEAL.  PP. 84-86. 

(A)  THE PROVISION OF 28 U.S.C. SEC. 380A REQUIRING AN APPEAL
THEREUNDER TO BE DOCKETED IN THIS COURT WITHIN 60 DAYS FROM THE TIME
THE APPEAL IS ALLOWED WAS NOT INTENDED TO VARY RULE 11 OF THIS COURT
AND DOES NOT CONSTITUTE A LIMITATION ON THE POWER OF THIS COURT TO HEAR
THIS APPEAL.  PP. 85-86. 

(B)  RULE 47 OF THIS COURT REQUIRES THE SAME PRACTICE FOR APPEALS
UNDER 28 U.S.C. SEC. 380A THAT RULE 11 DOES FOR OTHER APPEALS.  P. 86. 

2.  CERTAIN EMPLOYEES OF THE EXECUTIVE BRANCH OF THE FEDERAL
GOVERNMENT SUED FOR AN INJUNCTION AGAINST THE MEMBERS OF THE CIVIL
SERVICE COMMISSION TO PROHIBIT THEM FROM ENFORCING AGAINST SUCH
EMPLOYEES SEC. 9(A) OF THE HATCH ACT, 18 U.S.C. SUPP. V SEC. 61H, WHICH
FORBIDS SUCH EMPLOYEES FROM TAKING "ANY ACTIVE PART IN POLITICAL
MANAGEMENT OR IN POLITICAL CAMPAIGNS," AND ALSO FOR A DECLARATORY
JUDGMENT OF THE UNCONSTITUTIONALITY OF THIS SECTION.  THEY DID NOT
ALLEGE THAT THEY HAD VIOLATED THE ACT OR THAT THEY ACTUALLY WERE
THREATENED WITH ANY DISCIPLINARY ACTION, BUT ONLY THAT THEY DESIRE TO
ENGAGE IN ACTS OF POLITICAL MANAGEMENT AND IN POLITICAL CAMPAIGNS
(SPECIFYING THE NATURE OF THE ACTIONS WHICH THEY WISH TO TAKE) AND ARE
PREVENTED FROM DOING SO BY FEAR OF DISMISSAL FROM FEDERAL EMPLOYMENT. 
HELD:  THEIR SUIT DOES NOT PRESENT A JUSTICIABLE CASE OR CONTROVERSY. 
PP. 86-91. 

3.  ANOTHER EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL
GOVERNMENT BROUGHT A SIMILAR SUIT, ALLEGING THAT HE ACTUALLY HAD
COMMITTED SPECIFIC VIOLATIONS OF THE ACT AND THAT THE COMMISSION HAD
CHARGED HIM WITH VIOLATIONS AND HAD ISSUED A PROPOSED ORDER FOR HIS
REMOVAL, SUBJECT TO HIS RIGHT TO REPLY TO THE CHARGES AND TO PRESENT
FURTHER EVIDENCE IN REFUTATION.  HELD:  HIS SUIT PRESENTS A JUSTICIABLE
CASE OR CONTROVERSY.  PP. 91-94. 

(A)  SINCE THE EMPLOYEE ADMITS THAT HE VIOLATED THE ACT AND THAT
REMOVAL FROM OFFICE IS THEREFORE MANDATORY UNDER THE ACT, THERE IS NO
QUESTION AS TO EXHAUSTION OF ADMINISTRATIVE REMEDIES.  P. 93. 

(B)  THERE BEING NO ADMINISTRATIVE OR STATUTORY REVIEW FOR THE
COMMISSION'S ORDER AND NO PRIOR PROCEEDING PENDING IN THE COURTS, THERE
IS NO REASON WHY A DECLARATORY JUDGMENT ACTION DOES NOT LIE, EVEN
THOUGH CONSTITUTIONAL ISSUES ARE INVOLVED.  P. 93. 

4.  A PERSON EMPLOYED AS A ROLLER IN A UNITED STATES MINT ACTED
OUTSIDE OF WORKING HOURS AS A WARD EXECUTIVE COMMITTEEMAN OF A
POLITICAL PARTY AND WAS POLITICALLY ACTIVE ON ELECTION DAY AS A WORKER
AT THE POLLS AND AS A PAYMASTER FOR THE SERVICES OF OTHER WORKERS.  THE
CIVIL SERVICE COMMISSION FOUND THAT HE HAD TAKEN AN "ACTIVE PART IN
POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS" IN VIOLATION OF SEC.
9(A) OF THE HATCH ACT, 18 U.S.C. SUPP. V SEC. 61H, AND RULE 1 OF THE
COMMISSION AND ISSUED AN ORDER FOR HIS REMOVAL FROM FEDERAL
EMPLOYMENT.  HELD:  SUCH A BREACH OF THE HATCH ACT AND RULE 1 OF THE
COMMISSION CAN BE MADE THE BASIS FOR DISCIPLINARY ACTION WITHOUT
VIOLATING THE CONSTITUTION.  PP. 94-104. 

(A)  CONGRESS HAS THE POWER TO REGULATE, WITHIN REASONABLE LIMITS,
THE POLITICAL CONDUCT OF FEDERAL EMPLOYEES, IN ORDER TO PROMOTE
EFFICIENCY AND INTEGRITY IN THE PUBLIC SERVICE.  EX PARTE CURTIS, 106
U.S. 371; UNITED STATES V. WURZBACH, 280 U.S. 396.  PP. 96-103. 

(B)  THE FUNDAMENTAL HUMAN RIGHTS GUARANTEED BY THE FIRST, FIFTH,
NINTH AND TENTH AMENDMENTS ARE NOT ABSOLUTES; AND THIS COURT MUST
BALANCE THE EXTENT OF THE GUARANTEE OF FREEDOM AGAINST A CONGRESSIONAL
ENACTMENT TO PROTECT A DEMOCRATIC SOCIETY AGAINST THE SUPPOSED EVIL OF
POLITICAL PARTISANSHIP BY EMPLOYEES OF THE GOVERNMENT.  PP. 95-96. 

(C)  THE HATCH ACT PERMITS FULL PARTICIPATION BY FEDERAL EMPLOYEES IN
POLITICAL DECISIONS AT THE BALLOT BOX AND FORBIDS ONLY THE PARTISAN
ACTIVITY DEEMED OFFENSIVE TO EFFICIENCY.  P. 99. 

(D)  IT DOES NOT RESTRICT PUBLIC AND PRIVATE EXPRESSIONS ON PUBLIC
AFFAIRS, PERSONALITIES AND MATTERS OF PUBLIC INTEREST, NOT AN OBJECTIVE
OF PARTY ACTION, SO LONG AS THE GOVERNMENT EMPLOYEE DOES NOT DIRECT HIS
ACTIVITIES TOWARD PARTY SUCCESS.  P. 100. 

(E)  IF POLITICAL ACTIVITY BY GOVERNMENT EMPLOYEES IS HARMFUL TO THE
SERVICE, THE EMPLOYEES OR PEOPLE DEALING WITH THEM, IT IS HARDLY LESS
SO BECAUSE IT TAKES PLACE AFTER HOURS.  P. 95. 

(F)  THE PROHIBITION OF SEC. 9(A) OF THE HATCH ACT APPLIES WITHOUT
DISCRIMINATION TO ALL EMPLOYEES OF THE EXECUTIVE BRANCH OF THE
GOVERNMENT, WHETHER INDUSTRIAL OR ADMINISTRATIVE.  P. 102. 

(G)  WHATEVER DIFFERENCES THERE MAY BE BETWEEN ADMINISTRATIVE
EMPLOYEES OF THE GOVERNMENT AND INDUSTRIAL WORKERS IN ITS EMPLOY ARE
DIFFERENCES IN DETAIL FOR THE CONSIDERATION OF CONGRESS, SO FAR AS THE
CONSTITUTIONAL POWER HERE INVOLVED IS CONCERNED.  P. 102. 

(H)  THE DETERMINATION OF THE EXTENT TO WHICH POLITICAL ACTIVITIES OF
GOVERNMENT EMPLOYEES SHALL BE REGULATED LIES PRIMARILY WITH CONGRESS;
AND THE COURTS WILL INTERFERE ONLY WHEN SUCH REGULATION PASSES BEYOND
THE GENERALLY EXISTING CONCEPTION OF GOVERNMENTAL POWER.  P. 102. 

5.  ACTING AS WARD EXECUTIVE COMMITTEEMAN OF A POLITICAL PARTY AND AS
A WORKER AT THE POLLS IS WITHIN THE PROHIBITIONS OF SEC. 9 OF THE HATCH
ACT AND THE CIVIL SERVICE RULES.  P. 103. 

UNITED PUBLIC WORKERS OF AMERICA (C.I.O.)  ET AL. V. MITCHELL ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

CERTAIN EMPLOYEES OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT
AND A UNION OF SUCH EMPLOYEES SUED TO ENJOIN THE MEMBERS OF THE CIVIL
SERVICE COMMISSION FROM ENFORCING THE PROVISION OF SEC. 9(A) OF THE
HATCH ACT, 18 U.S.C. SUPP. V SEC. 61H, WHICH FORBIDS SUCH EMPLOYEES TO
TAKE "ANY ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL
CAMPAIGNS" AND FOR A DECLARATORY JUDGMENT HOLDING THE ACT
UNCONSTITUTIONAL.  THE DISTRICT COURT DISMISSED THE SUIT.  56 F.SUPP. 
621.  A DIRECT APPEAL TO THIS COURT WAS TAKEN UNDER SEC. 3 OF THE ACT
OF AUGUST 24, 1937, 50 STAT. 752, 28 U.S.C. SEC. 380A.  AFFIRMED, P.
104. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE HATCH ACT* , ENACTED IN 1940, DECLARES UNLAWFUL CERTAIN SPECIFIED
POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES.  FN1  SECTION 9 FORBIDS
OFFICERS AND EMPLOYEES IN THE EXECUTIVE BRANCH OF THE FEDERAL
GOVERNMENT, WITH EXCEPTIONS, FROM TAKING "ANY ACTIVE PART IN POLITICAL
MANAGEMENT OR IN POLITICAL CAMPAIGNS."  FN2  SECTION 15 DECLARES THAT
THE ACTIVITIES THERETOFORE DETERMINED BY THE UNITED STATES CIVIL
SERVICE COMMISSION TO BE PROHIBITED TO EMPLOYEES IN THE CLASSIFIED
CIVIL SERVICE OF THE UNITED STATES BY THE CIVIL SERVICE RULES SHALL BE
DEEMED TO BE PROHIBITED TO FEDERAL EMPLOYEES COVERED BY THE HATCH ACT. 
FN3  THESE SECTIONS OF THE ACT COVER ALL FEDERAL OFFICERS AND EMPLOYEES
WHETHER IN THE CLASSIFIED CIVIL SERVICE OR NOT AND A PENALTY OF
DISMISSAL FROM EMPLOYMENT IS IMPOSED FOR VIOLATION.  THERE IS NO
DESIGNATION OF A SINGLE GOVERNMENTAL AGENCY FOR ITS ENFORCEMENT. 

*ANOTHER CONTROVERSY UNDER THE SAME ACT IS DECIDED TODAY.  OKLAHOMA
V. UNITED STATES CIVIL SERVICE COMMISSION, POST, P. 127. 

FOR MANY YEARS BEFORE THE HATCH ACT THE CONGRESS HAD AUTHORIZED THE
EXCLUSION OF FEDERAL EMPLOYEES IN THE COMPETITIVE CLASSIFIED SERVICE
FROM ACTIVE PARTICIPATION IN POLITICAL MANAGEMENT AND POLITICAL
CAMPAIGNS.  FN4  IN JUNE, 1938, THE CONGRESSIONAL AUTHORIZATION FOR
EXCLUSION HAD BEEN MADE MORE EFFECTIVE BY A CIVIL SERVICE COMMISSION
DISCIPLINARY RULE.  FN5  THAT POWER TO DISCIPLINE MEMBERS OF THE
COMPETITIVE CLASSIFIED CIVIL SERVICE CONTINUES IN THE COMMISSION UNDER
THE HATCH ACT BY VIRTUE OF THE PRESENT APPLICABILITY OF THE EXECUTIVE
ORDER NO. 8705, MARCH 5, 1941.  THE APPLICABLE CIVIL SERVICE COMMISSION
RULES ARE PRINTED IN THE MARGIN.  FN6  THE ONLY CHANGE IN THE CIVIL
SERVICE RULES RELATING TO POLITICAL ACTIVITY, CAUSED BY THE HATCH ACT
LEGISLATION, THAT IS OF SIGNIFICANCE IN THIS CASE IS THE ELIMINATION ON
MARCH 5, 1941, OF THE WORD "PRIVATELY" FROM THE PHRASE "TO EXPRESS
PRIVATELY THEIR OPINIONS."  THIS LIMITATION TO PRIVATE EXPRESSION HAD
REGULATED CLASSIFIED PERSONNEL SINCE 1907.  FN7 

THE PRESENT APPELLANTS SOUGHT AN INJUNCTION BEFORE A STATUTORY THREE
JUDGE DISTRICT COURT OF THE DISTRICT OF COLUMBIA AGAINST APPELLEES,
MEMBERS OF THE UNITED STATES CIVIL SERVICE COMMISSION, TO PROHIBIT THEM
FROM ENFORCING AGAINST APPELLANTS THE PROVISIONS OF THE SECOND SENTENCE
OF SEC. 9(A) OF THE HATCH ACT FOR THE REASON THAT THE SENTENCE IS
REPUGNANT TO THE CONSTITUTION OF THE UNITED STATES.  FN8  A DECLARATORY
JUDGMENT OF THE UNCONSTITUTIONALITY OF THE SENTENCE WAS ALSO SOUGHT. 
FN9  THE SENTENCE REFERRED TO READS, "NO OFFICER OR EMPLOYEE IN THE
EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT  ...  SHALL TAKE ANY ACTIVE
PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS." 

VARIOUS INDIVIDUAL EMPLOYEES OF THE FEDERAL EXECUTIVE CIVIL SERVICE
AND THE UNITED PUBLIC WORKERS OF AMERICA,  FN10  A LABOR UNION WITH
THESE AND OTHER EXECUTIVE EMPLOYEES AS MEMBERS, AS A REPRESENTATIVE OF
ALL ITS MEMBERS, JOINED IN THE SUIT.  IT IS ALLEGED THAT THE
INDIVIDUALS DESIRE TO ENGAGE IN ACTS OF POLITICAL MANAGEMENT AND IN
POLITICAL CAMPAIGNS.  THEIR PURPOSES ARE AS STATED IN THE EXCERPT FROM
THE COMPLAINT SET OUT IN THE MARGIN.  FN11  FROM THE AFFIDAVITS IT IS
PLAIN, AND WE SO ASSUME, THAT THESE ACTIVITIES WILL BE CARRIED ON
COMPLETELY OUTSIDE OF THE HOURS OF EMPLOYMENT.  APPELLANTS CHALLENGE
THE SECOND SENTENCE OF SEC. 9(A) AS UNCONSTITUTIONAL FOR VARIOUS
REASONS.  THEY ARE SET OUT BELOW IN THE LANGUAGE OF THE COMPLAINT. 
FN12 

NONE OF THE APPELLANTS, EXCEPT GEORGE P. POOLE, HAS VIOLATED THE
PROVISIONS OF THE HATCH ACT.  THEY WISH TO ACT CONTRARY TO ITS
PROVISIONS AND THOSE OF SEC. 1 OF THE CIVIL SERVICE RULES AND DESIRE A
DECLARATION OF THE LEGALLY PERMISSIBLE LIMITS OF REGULATION. 
DEFENDANTS MOVED TO DISMISS THE COMPLAINT FOR LACK OF A JUSTICIABLE
CASE OR CONTROVERSY.  THE DISTRICT COURT DETERMINED THAT EACH OF THESE
INDIVIDUAL APPELLANTS HAD AN INTEREST IN THEIR CLAIMED PRIVILEGE OF
ENGAGING IN POLITICAL ACTIVITIES, SUFFICIENT TO GIVE THEM A RIGHT TO
MAINTAIN THIS SUIT.  UNITED FEDERAL WORKERS OF AMERICA (C.I.O.)  V.
MITCHELL, 56 F.SUPP.  621, 624.  THE DISTRICT COURT FURTHER DETERMINED
THAT THE QUESTIONED PROVISION OF THE HATCH ACT WAS VALID AND THAT THE
COMPLAINT THEREFORE FAILED TO STATE A CAUSE OF ACTION.  IT ACCORDINGLY
DISMISSED THE COMPLAINT AND GRANTED SUMMARY JUDGMENT TO DEFENDANTS. 

FIRST.  THE JUDGMENT OF THE DISTRICT COURT WAS ENTERED ON SEPTEMBER
26, 1944.  AN ORDER WAS DULY ENTERED ON OCTOBER 26, 1944, ALLOWING AN
APPEAL.  28 U.S.C. SEC. 380A.  THE SAME SECTION OF THE STATUTES
PROVIDES:  "IN THE EVENT THAT AN APPEAL IS TAKEN UNDER THIS SECTION,
THE RECORD SHALL BE MADE UP AND THE CASE DOCKETED IN THE SUPREME COURT
OF THE UNITED STATES WITHIN SIXTY DAYS FROM THE TIME SUCH APPEAL IS
ALLOWED, UNDER SUCH RULES AS MAY BE PRESCRIBED BY THE PROPER COURTS." 
THIS APPEAL WAS NOT DOCKETED IN THIS COURT UNTIL FEBRUARY 2, 1945, A
DATE AFTER THE RETURN DATE OF THE ORDER UNDER SEC. 380A.  THEREAFTER
THE GOVERNMENT SUGGESTED A LACK OF JURISDICTION IN THIS COURT TO
CONSIDER THE APPEAL BECAUSE OF THE FAILURE OF APPELLANTS TO DOCKET THE
APPEAL IN TIME.  WE POSTPONED CONSIDERATION OF OUR JURISDICTION OVER
THIS APPEAL TO THE HEARING.  WE PROCEED NOW TO A DISPOSITION OF THIS
QUESTION. 

TO COMPLY WITH THE SUGGESTION OF SEC. 380A, THIS COURT ADOPTED RULE
47.  FN13  IN OTHER CASES OF APPEALS, RULE 11 GOVERNS DOCKETING.  FN14
IF RULE 11 APPLIES ALSO TO APPEALS UNDER SEC. 380A, WE MAY HEAR THIS
APPEAL, FOR THE STEPS FOR DISMISSAL REQUIRED BY RULE 11 WERE NOT TAKEN
BY THE APPELLEES.  THIS IS BECAUSE UPON THE ALLOWANCE OF AN APPEAL BY A
JUDGE OF THE DISTRICT COURT AS HERE, SUPREME COURT RULES 10 AND 36, THE
CASE IS TRANSFERRED FROM THE DISTRICT COURT TO THIS COURT AND
SUBSEQUENT STEPS FOR DISMISSAL OR AFFIRMANCE ARE TO BE TAKEN HERE. 
FN15  IF, HOWEVER, THE ABOVE-QUOTED PROVISION OF SEC. 380A AS TO
DOCKETING IS A PREREQUISITE TO THE POWER OF THIS COURT TO REVIEW, THIS
APPEAL MUST FAIL. 

PRIOR TO THE PASSAGE OF SEC. 380A, APPEALS DOCKETED AFTER THE RETURN
DAY WERE GOVERNED BY RULE 11, 275 U.S. 602.  IN PRINCIPLE IT HAS LONG
BEEN IN EXISTENCE.  FN16  BY THE WORDS OF THE RULE, IT APPEARS THAT
DISMISSAL FOR APPELLANT'S TARDINESS IN DOCKETING REQUIRES A STEP BY THE
APPELLEE.  EVEN AFTER DISMISSAL FOR FAILURE TO DOCKET, THE RULE PERMITS
THIS COURT TO ALLOW THE APPELLANT TO DOCKET.  NOTHING IN THE
LEGISLATIVE HISTORY WHICH HAS BEEN CALLED TO OUR ATTENTION INDICATES
THAT CONGRESS INTENDED ITS DOCKETING PROVISION TO VARY RULE 11.  DIRECT
APPEAL ACCOMPLISHES THE CONGRESSIONAL PURPOSE OF EXPEDITING REVIEW, OF
COURSE, AND IS CONSISTENT WITH AN UNCHANGED PRACTICE AS TO DISMISSALS. 
THE TIME TO DOCKET MAY HAVE BEEN ENLARGED FROM THE CONVENTIONAL RETURN
DAY OF RULES 10 AND 11 TO BRING CONTINENTAL UNIFORMITY, SEE RULE 10, OR
TO GIVE TIME FOR THE PREPARATION OF A RECORD WHICH WOULD OFTEN BE LARGE
AND NOT TRANSCRIBED OR PRINTED.  IT WILL NOT EXPEDITE DETERMINATION OF
CONSTITUTIONAL QUESTIONS TO DISMISS APPEALS BECAUSE OF ERRORS OF
PRACTICE.  IN FACT THE SENTENCE OF SEC. 380A ON DOCKETING SEEMS
DELIBERATELY TO LEAVE THE PRACTICE ON FAILURE TO DOCKET TO RULES OF
COURT.  WE DO NOT CONSTRUE THE REQUIREMENT OF DOCKETING WITHIN SIXTY
DAYS AS A LIMITATION ON OUR POWER TO HEAR THIS APPEAL. 

SO FAR AS OUR RULE 47 IS CONCERNED, WE CONSTRUE IT AS REQUIRING IN
ACCORDANCE WITH SEC. 380A THE DOCKETING IN SIXTY DAYS FROM THE
ALLOWANCE OF THE APPEAL, INSTEAD OF THE FORTY DAYS OF OUR RULE 10, AND
THAT, AS TO DISMISSALS, THE FIRST SENTENCE OF RULE 47 REQUIRES THE SAME
PRACTICE FOR APPEALS UNDER SEC. 380A THAT RULE 11 DOES FOR OTHER
APPEALS.  WE THINK IT DESIRABLE TO HAVE SUFFICIENT FLEXIBILITY IN THE
RULE TO PERMIT EXTENSIONS OF THE TIME FOR RETURN IN THE UNUSUAL
SITUATIONS THAT OCCUR WHEN LARGE RECORDS ARE INVOLVED.  IN VIEW OF THE
RECOGNIZED CONGRESSIONAL PURPOSE TO QUICKEN REVIEW UNDER SEC. 380A, THE
DISCRETION TO DELAY FINAL HEARING ALLOWED UNDER RULE 11 WILL BE
EXERCISED ONLY ON A DEFINITE SHOWING OF NEED THEREFOR TO ASSURE FAIR
REVIEW.  THIS LEADS US TO HEAR THIS APPEAL.  FN17 

SECOND.  AT THE THRESHOLD OF CONSIDERATION, WE ARE CALLED UPON TO
DECIDE WHETHER THE COMPLAINT STATES A CONTROVERSY COGNIZABLE IN THIS
COURT.  WE DEFER CONSIDERATION OF THE CAUSE OF ACTION OF MR. POOLE
UNTIL SECTION THREE OF THIS OPINION.  THE OTHER INDIVIDUAL EMPLOYEES
HAVE ELABORATED THE GROUNDS OF THEIR OBJECTION IN INDIVIDUAL AFFIDAVITS
FOR USE IN THE HEARING ON THE SUMMARY JUDGMENT.  WE SELECT AS AN
EXAMPLE ONE THAT CONTAINS THE ESSENTIAL AVERMENTS OF ALL THE OTHERS AND
PRINT BELOW THE PORTIONS WITH SIGNIFICANCE IN THIS SUIT.  FN18  NOTHING
SIMILAR TO THE FOURTH PARAGRAPH OF THE PRINTED AFFIDAVIT IS CONTAINED
IN THE OTHER AFFIDAVITS.  THE ASSUMED CONTROVERSY BETWEEN AFFIANT AND
THE CIVIL SERVICE COMMISSION AS TO AFFIANT'S RIGHT TO ACT AS WATCHER AT
THE POLLS ON NOVEMBER 2, 1943, HAD LONG BEEN MOOT WHEN THIS COMPLAINT
WAS FILED.  WE DO NOT THEREFORE TREAT THIS ALLEGATION SEPARATELY.  THE
AFFIDAVITS, IT WILL BE NOTICED, FOLLOW THE GENERALITY OF PURPOSE
EXPRESSED BY THE COMPLAINT.  SEE NOTE 11 SUPRA.  THEY DECLARE A DESIRE
TO ACT CONTRARY TO THE RULE AGAINST POLITICAL ACTIVITY BUT NOT THAT THE
RULE HAS BEEN VIOLATED.  IN THIS RESPECT, WE THINK THEY DIFFER FROM THE
TYPE OF THREAT ADJUDICATED IN RAILWAY MAIL ASSOCIATION V. CORSI, 326
U.S. 88.  IN THAT CASE, THE REFUSAL TO ADMIT AN APPLICANT TO MEMBERSHIP
IN A LABOR UNION ON ACCOUNT OF RACE WAS INVOLVED.  ADMISSION HAD BEEN
REFUSED.  326 U.S. AT P. 93, NOTE 10.  DEFINITE ACTION HAD ALSO BEEN
TAKEN IN HILL V. FLORIDA, 325 U.S. 538.  IN THE HILL CASE AN INJUNCTION
HAD BEEN SOUGHT AND ALLOWED AGAINST HILL AND THE UNION FORBIDDING HILL
FROM ACTING AS THE BUSINESS AGENT OF THE UNION AND THE UNION FROM
FURTHER FUNCTIONING AS A UNION UNTIL IT COMPLIED WITH THE STATE LAW. 
THE THREATS WHICH MENACED THE AFFIANTS OF THESE AFFIDAVITS IN THE CASE
NOW BEING CONSIDERED ARE CLOSER TO A GENERAL THREAT BY OFFICIALS TO
ENFORCE THOSE LAWS WHICH THEY ARE CHARGED TO ADMINISTER, COMPARE WATSON
V. BUCK, 313 U.S. 387, 400, THAN THEY ARE TO THE DIRECT THREAT OF
PUNISHMENT AGAINST A NAMED ORGANIZATION FOR A COMPLETED ACT THAT MADE
THE MAIL ASSOCIATION AND THE HILL CASES JUSTICIABLE. 

AS IS WELL KNOWN, THE FEDERAL COURTS ESTABLISHED PURSUANT TO ARTICLE
III OF THE CONSTITUTION DO NOT RENDER ADVISORY OPINIONS.  FN19  FOR
ADJUDICATION OF CONSTITUTIONAL ISSUES, "CONCRETE LEGAL ISSUES,
PRESENTED IN ACTUAL CASES, NOT ABSTRACTIONS," ARE REQUISITE.  FN20
THIS IS AS TRUE OF DECLARATORY JUDGMENTS AS ANY OTHER FIELD.  FN21
THESE APPELLANTS SEEM CLEARLY TO SEEK ADVISORY OPINIONS UPON BROAD
CLAIMS OF RIGHTS PROTECTED BY THE FIRST, FIFTH, NINTH AND TENTH
AMENDMENTS TO THE CONSTITUTION.  AS THESE APPELLANTS ARE CLASSIFIED
EMPLOYEES, THEY HAVE A RIGHT SUPERIOR TO THE GENERALITY OF CITIZENS,
COMPARE FAIRCHILD V. HUGHES, 258 U.S. 126, BUT THE FACTS OF THEIR
PERSONAL INTEREST IN THEIR CIVIL RIGHTS, OF THE GENERAL THREAT OF
POSSIBLE INTERFERENCE WITH THOSE RIGHTS BY THE CIVIL SERVICE COMMISSION
UNDER ITS RULES, IF SPECIFIED THINGS ARE DONE BY APPELLANTS, DOES NOT
MAKE A JUSTICIABLE CASE OR CONTROVERSY.  APPELLANTS WANT TO ENGAGE IN
"POLITICAL MANAGEMENT AND POLITICAL CAMPAIGNS," TO PERSUADE OTHERS TO
FOLLOW APPELLANTS' VIEWS BY DISCUSSION, SPEECHES, ARTICLES AND OTHER
ACTS REASONABLY DESIGNED TO SECURE THE SELECTION OF APPELLANTS'
POLITICAL CHOICES.  SUCH GENERALITY OF OBJECTION IS REALLY AN ATTACK ON
THE POLITICAL EXPEDIENCY OF THE HATCH ACT, NOT THE PRESENTATION OF
LEGAL ISSUES.  IT IS BEYOND THE COMPETENCE OF COURTS TO RENDER SUCH A
DECISION.  TEXAS V. INTERSTATE COMMERCE COMMISSION, 258 U.S. 158, 162. 

THE POWER OF COURTS, AND ULTIMATELY OF THIS COURT, TO PASS UPON THE
CONSTITUTIONALITY OF ACTS OF CONGRESS ARISES ONLY WHEN THE INTERESTS OF
LITIGANTS REQUIRE THE USE OF THIS JUDICIAL AUTHORITY FOR THEIR
PROTECTION AGAINST ACTUAL INTERFERENCE.  A HYPOTHETICAL THREAT IS NOT
ENOUGH.  WE CAN ONLY SPECULATE AS TO THE KINDS OF POLITICAL ACTIVITY
THE APPELLANTS DESIRE TO ENGAGE IN OR AS TO THE CONTENTS OF THEIR
PROPOSED PUBLIC STATEMENTS OR THE CIRCUMSTANCES OF THEIR PUBLICATION. 
IT WOULD NOT ACCORD WITH JUDICIAL RESPONSIBILITY TO ADJUDGE, IN A
MATTER INVOLVING CONSTITUTIONALITY, BETWEEN THE FREEDOM OF THE
INDIVIDUAL AND THE REQUIREMENTS OF PUBLIC ORDER EXCEPT WHEN DEFINITE
RIGHTS APPEAR UPON THE ONE SIDE AND DEFINITE PREJUDICIAL INTERFERENCES
UPON THE OTHER.  FN22    THE CONSTITUTION ALLOTS THE NATION'S JUDICIAL
POWER TO THE FEDERAL COURTS.  UNLESS THESE COURTS RESPECT THE LIMITS OF
THAT UNIQUE AUTHORITY, THEY INTRUDE UPON POWERS VESTED IN THE
LEGISLATIVE OR EXECUTIVE BRANCHES.  JUDICIAL ADHERENCE TO THE DOCTRINE
OF THE SEPARATION OF POWERS PRESERVES THE COURTS FOR THE DECISION OF
ISSUES, BETWEEN LITIGANTS, CAPABLE OF EFFECTIVE DETERMINATION. 
JUDICIAL EXPOSITION UPON POLITICAL PROPOSALS IS PERMISSIBLE ONLY WHEN
NECESSARY TO DECIDE DEFINITE ISSUES BETWEEN LITIGANTS.  WHEN THE COURTS
ACT CONTINUALLY WITHIN THESE CONSTITUTIONALLY IMPOSED BOUNDARIES OF
THEIR POWER, THEIR ABILITY TO PERFORM THEIR FUNCTION AS A BALANCE FOR
THE PEOPLE'S PROTECTION AGAINST ABUSE OF POWER BY OTHER BRANCHES OF
GOVERNMENT REMAINS UNIMPAIRED.  SHOULD THE COURTS SEEK TO EXPAND THEIR
POWER SO AS TO BRING UNDER THEIR JURISDICTION ILL-DEFINED CONTROVERSIES
OVER CONSTITUTIONAL ISSUES, THEY WOULD BECOME THE ORGAN OF POLITICAL
THEORIES.  SUCH ABUSE OF JUDICIAL POWER WOULD PROPERLY MEET REBUKE AND
RESTRICTION FROM OTHER BRANCHES.  BY THESE MUTUAL CHECKS AND BALANCES
BY AND BETWEEN THE BRANCHES OF GOVERNMENT, DEMOCRACY UNDERTAKES TO
PRESERVE THE LIBERTIES OF THE PEOPLE FROM EXCESSIVE CONCENTRATIONS OF
AUTHORITY.  NO THREAT OF INTERFERENCE BY THE COMMISSION WITH RIGHTS OF
THESE APPELLANTS APPEARS BEYOND THAT IMPLIED BY THE EXISTENCE OF THE
LAW AND THE REGULATIONS.  WATSON V. BUCK, SUPRA, P. 400.  WE SHOULD NOT
TAKE JUDICIAL COGNIZANCE OF THE SITUATION PRESENTED ON THE PART OF THE
APPELLANTS CONSIDERED IN THIS SUBDIVISION OF THE OPINION.  THESE
REASONS LEAD US TO CONCLUDE THAT THE DETERMINATION OF THE TRIAL COURT,
THAT THE INDIVIDUAL APPELLANTS, OTHER THAN POOLE, COULD MAINTAIN THIS
ACTION, WAS ERRONEOUS. 

THIRD.  THE APPELLANT POOLE DOES PRESENT BY THE COMPLAINT AND
AFFIDAVIT MATTERS APPROPRIATE FOR JUDICIAL DETERMINATION N23.  THE
AFFIDAVITS FILED BY APPELLEES CONFIRM THAT POOLE HAS BEEN CHARGED BY
THE COMMISSION WITH POLITICAL ACTIVITY AND A PROPOSED ORDER FOR HIS
REMOVAL FROM HIS POSITION ADOPTED SUBJECT TO HIS RIGHT UNDER COMMISSION
PROCEDURE TO REPLY TO THE CHARGES AND TO PRESENT FURTHER EVIDENCE IN
REFUTATION.  FN24  WE PROCEED TO CONSIDER THE CONTROVERSY OVER
CONSTITUTIONAL POWER AT ISSUE BETWEEN POOLE AND THE COMMISSION AS
DEFINED BY THE CHARGE AND PRELIMINARY FINDING UPON ONE SIDE AND THE
ADMISSIONS OF POOLE'S AFFIDAVIT UPON THE OTHER.  OUR DETERMINATION IS
LIMITED TO THOSE FACTS.  THIS PROCEEDING SO LIMITED MEETS THE
REQUIREMENTS OF DEFINED RIGHTS AND A DEFINITE THREAT TO INTERFERE WITH
A POSSESSOR OF THE MENACED RIGHTS BY A PENALTY FOR AN ACT DONE IN
VIOLATION OF THE CLAIMED RESTRAINT.  FN25 

BECAUSE WE CONCLUDE HEREINAFTER THAT THE PROHIBITION OF SEC. 9 OF THE
HATCH ACT AND CIVIL SERVICE RULE 1, SEE NOTES 2 AND 6 ABOVE, ARE VALID,
IT IS UNNECESSARY TO CONSIDER, AS THIS IS A DECLARATORY JUDGMENT
ACTION, WHETHER OR NOT THIS APPELLANT SUFFICIENTLY ALLEGES THAT AN
IRREPARABLE INJURY TO HIM WOULD RESULT FROM HIS REMOVAL FROM HIS
POSITION.  FN26  NOR NEED WE INQUIRE WHETHER OR NOT A COURT OF EQUITY
WOULD ENFORCE BY INJUNCTION ANY JUDGMENT DECLARING RIGHTS.  FN27  SINCE
POOLE ADMITS THAT HE VIOLATED THE RULE AGAINST POLITICAL ACTIVITY AND
THAT REMOVAL FROM OFFICE IS THEREFORE MANDATORY UNDER THE ACT, THERE IS
NO QUESTION AS TO THE EXHAUSTION OF ADMINISTRATIVE REMEDIES.  THE ACT
PROVIDES NO ADMINISTRATIVE OR STATUTORY REVIEW FOR THE ORDER OF THE
CIVIL SERVICE COMMISSION.  COMPARE STARK V. WICKARD, 321 U.S. 288, 306
10; MACAULEY V. WATERMAN S.S. CORPORATION, 327 U.S. 540.  AS NO PRIOR
PROCEEDING, OFFERING AN EFFECTIVE REMEDY OR OTHERWISE, IS PENDING IN
THE COURTS, THERE IS NO PROBLEM OF JUDICIAL DISCRETION AS TO WHETHER TO
TAKE COGNIZANCE OF THIS CASE.  BRILLHART V. EXCESS INSURANCE CO., 316
U.S. 491, 496-97, DISSENT AT 500; LARSON V. GENERAL MOTORS CORPORATION,
134 F.2D 450, 453.  UNDER SUCH CIRCUMSTANCES, WE SEE NO REASON WHY A
DECLARATORY JUDGMENT ACTION, EVEN THOUGH CONSTITUTIONAL ISSUES ARE
INVOLVED, DOES NOT LIE.  SEE RULES OF CIVIL PROCEDURE, RULE 57.  STEELE
V. LOUISVILLE & NASHVILLE RAILROAD CO., 323 U.S. 192, 197, 207;
TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, 323 U.S.
210, 212, ET SEQ.* 

*IN MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, A DECLARATORY
JUDGMENT PROCEEDING, P. 46, PRIOR TO THE ADOPTION OF RULE 57, A
PROCEEDING BEFORE THE N.L.R.B. WAS REQUIRED.  THERE IS STATUTORY
JUDICIAL REVIEW FROM THAT BOARD'S DECISIONS, HOWEVER. 

FOURTH. THIS BRINGS US TO CONSIDER THE NARROW BUT IMPORTANT POINT
INVOLVED IN POOLE'S SITUATION.  FN28  POOLE'S STATED OFFENSE IS TAKING
AN "ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS."  HE
WAS A WARD EXECUTIVE COMMITTEEMAN OF A POLITICAL PARTY AND WAS
POLITICALLY ACTIVE ON ELECTION DAY AS A WORKER AT THE POLLS AND A
PAYMASTER FOR THE SERVICES OF OTHER PARTY WORKERS.  THE ISSUE FOR
DECISION AND THE ONLY ONE WE DECIDE IS WHETHER SUCH A BREACH OF THE
HATCH ACT AND RULE 1 OF THE COMMISSION CAN, WITHOUT VIOLATING THE
CONSTITUTION, BE MADE THE BASIS FOR DISCIPLINARY ACTION. 

WHEN THE ISSUE IS THUS NARROWED, THE INTERFERENCE WITH FREE
EXPRESSION IS SEEN IN BETTER PROPORTION AS COMPARED WITH THE
REQUIREMENTS OF ORDERLY MANAGEMENT OF ADMINISTRATIVE PERSONNEL.  ONLY
WHILE THE EMPLOYEE IS POLITICALLY ACTIVE, IN THE SENSE OF RULE 1, MUST
HE WITHHOLD EXPRESSION OF OPINION ON PUBLIC SUBJECTS.  SEE NOTE 6.  WE
ASSUME THAT MR. POOLE WOULD BE EXPECTED TO COMMENT PUBLICLY AS
COMMITTEEMAN ON POLITICAL MATTERS, SO THAT INDIRECTLY THERE IS AN
ATTENUATED INTERFERENCE.  WE ACCEPT APPELLANTS' CONTENTION THAT THE
NATURE OF POLITICAL RIGHTS RESERVED TO THE PEOPLE BY THE NINTH AND
TENTH AMENDMENTS ARE INVOLVED.  THE RIGHT CLAIMED AS INVIOLATE MAY BE
STATED AS THE RIGHT OF A CITIZEN TO ACT AS A PARTY OFFICIAL OR WORKER
TO FURTHER HIS OWN POLITICAL VIEWS.  THUS WE HAVE A MEASURE OF
INTERFERENCE BY THE HATCH ACT AND THE RULES WITH WHAT OTHERWISE WOULD
BE THE FREEDOM OF THE CIVIL SERVANT UNDER THE FIRST, NINTH AND TENTH
AMENDMENTS.  AND, IF WE LOOK UPON DUE PROCESS AS A GUARANTEE OF FREEDOM
IN THOSE FIELDS, THERE IS A CORRESPONDING IMPAIRMENT OF THAT RIGHT
UNDER THE FIFTH AMENDMENT.  APPELLANTS' OBJECTIONS UNDER THE AMENDMENTS
ARE BASICALLY THE SAME. 

WE DO NOT FIND PERSUASION IN APPELLANTS' ARGUMENT THAT SUCH
ACTIVITIES DURING FREE TIME ARE NOT SUBJECT TO REGULATION EVEN THOUGH
ADMITTEDLY POLITICAL ACTIVITIES CANNOT BE INDULGED IN DURING WORKING
HOURS.  FN29  THE INFLUENCE OF POLITICAL ACTIVITY BY GOVERNMENT
EMPLOYEES, IF EVIL IN ITS EFFECTS ON THE SERVICE, THE EMPLOYEES OR
PEOPLE DEALING WITH THEM, IS HARDLY LESS SO BECAUSE THAT ACTIVITY TAKES
PLACE AFTER HOURS.  OF COURSE, THE QUESTION OF THE NEED FOR THIS
REGULATION IS FOR OTHER BRANCHES OF GOVERNMENT RATHER THAN THE COURTS. 
OUR DUTY IN THIS CASE ENDS IF THE HATCH ACT PROVISION UNDER EXAMINATION
IS CONSTITUTIONAL. 

OF COURSE, IT IS ACCEPTED CONSTITUTIONAL DOCTRINE THAT THESE
FUNDAMENTAL HUMAN RIGHTS ARE NOT ABSOLUTES.  THE REQUIREMENTS OF
RESIDENCE AND AGE MUST BE MET.  THE ESSENTIAL RIGHTS OF THE FIRST
AMENDMENT IN SOME INSTANCES ARE SUBJECT TO THE ELEMENTAL NEED FOR ORDER
WITHOUT WHICH THE GUARANTEES OF CIVIL RIGHTS TO OTHERS WOULD BE A
MOCKERY N30.  THE POWERS GRANTED BY THE CONSTITUTION TO THE FEDERAL
GOVERNMENT ARE SUBTRACTED FROM THE TOTALITY OF SOVEREIGNTY ORIGINALLY
IN THE STATES AND THE PEOPLE.  THEREFORE, WHEN OBJECTION IS MADE THAT
THE EXERCISE OF A FEDERAL POWER INFRINGES UPON RIGHTS RESERVED BY THE
NINTH AND TENTH AMENDMENTS, THE INQUIRY MUST BE DIRECTED TOWARD THE
GRANTED POWER UNDER WHICH THE ACTION OF THE UNION WAS TAKEN.  IF
GRANTED POWER IS FOUND, NECESSARILY THE OBJECTION OF INVASION OF THOSE
RIGHTS, RESERVED BY THE NINTH AND TENTH AMENDMENTS, MUST FAIL.  AGAIN
THIS COURT MUST BALANCE THE EXTENT OF THE GUARANTEES OF FREEDOM AGAINST
A CONGRESSIONAL ENACTMENT TO PROTECT A DEMOCRATIC SOCIETY AGAINST THE
SUPPOSED EVIL OF POLITICAL PARTISANSHIP BY CLASSIFIED EMPLOYEES OF
GOVERNMENT. 

AS POINTED OUT HEREINBEFORE IN THIS OPINION, THE PRACTICE OF
EXCLUDING CLASSIFIED EMPLOYEES FROM PARTY OFFICES AND PERSONAL
POLITICAL ACTIVITY AT THE POLLS HAS BEEN IN EFFECT FOR SEVERAL
DECADES.  SOME INCIDENTS SIMILAR TO THOSE THAT ARE UNDER EXAMINATION
HERE HAVE BEEN BEFORE THIS COURT AND THE PROHIBITION AGAINST CERTAIN
TYPES OF POLITICAL ACTIVITY BY OFFICEHOLDERS HAS BEEN UPHELD.  THE
LEADING CASE WAS DECIDED IN 1882.  EX PARTE CURTIS, 106 U.S. 371. 
THERE A SUBORDINATE UNITED STATES EMPLOYEE WAS INDICTED FOR VIOLATION
OF AN ACT THAT FORBADE EMPLOYEES WHO WERE NOT APPOINTED BY THE
PRESIDENT AND CONFIRMED BY THE SENATE FROM GIVING OR RECEIVING MONEY
FOR POLITICAL PURPOSES FROM OR TO OTHER EMPLOYEES OF THE GOVERNMENT ON
PENALTY OF DISCHARGE AND CRIMINAL PUNISHMENT.  CURTIS URGED THAT THE
STATUTE WAS UNCONSTITUTIONAL.  THIS COURT UPHELD THE RIGHT OF CONGRESS
TO PUNISH THE INFRACTION OF THIS LAW.  THE DECISIVE PRINCIPLE WAS THE
POWER OF CONGRESS, WITHIN REASONABLE LIMITS, TO REGULATE, SO FAR AS IT
MIGHT DEEM NECESSARY, THE POLITICAL CONDUCT OF ITS EMPLOYEES.  A LIST
OF PROHIBITIONS AGAINST ACTS BY PUBLIC OFFICIALS THAT ARE PERMITTED TO
OTHER CITIZENS WAS GIVEN.  THIS COURT SAID, P. 373: 

"THE EVIDENT PURPOSE OF CONGRESS IN ALL THIS CLASS OF ENACTMENTS HAS
BEEN TO PROMOTE EFFICIENCY AND INTEGRITY IN THE DISCHARGE OF OFFICIAL
DUTIES, AND TO MAINTAIN PROPER DISCIPLINE IN THE PUBLIC SERVICE. 
CLEARLY SUCH A PURPOSE IS WITHIN THE JUST SCOPE OF LEGISLATIVE POWER,
AND IT IS NOT EASY TO SEE WHY THE ACT NOW UNDER CONSIDERATION DOES NOT
COME FAIRLY WITHIN THE LEGITIMATE MEANS TO SUCH AN END." 

THE RIGHT TO CONTRIBUTE MONEY THROUGH FELLOW EMPLOYEES TO ADVANCE THE
CONTRIBUTOR'S POLITICAL THEORIES WAS HELD NOT TO BE PROTECTED BY ANY
CONSTITUTIONAL PROVISION.  IT WAS HELD SUBJECT TO REGULATION.  A
DISSENT BY MR. JUSTICE BRADLEY EMPHASIZED THE BROAD BASIS OF THE
COURT'S OPINION.  HE CONTENDED THAT A CITIZEN'S RIGHT TO PROMOTE HIS
POLITICAL VIEWS COULD NOT BE SO RESTRICTED MERELY BECAUSE HE WAS AN
OFFICIAL OF GOVERNMENT.  FN31 

NO OTHER MEMBER OF THE COURT JOINED IN THIS DISSENT.  THE CONCLUSION
OF THE COURT, THAT THERE WAS NO CONSTITUTIONAL BAR TO REGULATION OF
SUCH FINANCIAL CONTRIBUTIONS OF PUBLIC SERVANTS AS DISTINGUISHED FROM
THE EXERCISE OF POLITICAL PRIVILEGES SUCH AS THE BALLOT, HAS FOUND
ACCEPTANCE IN THE SUBSEQUENT PRACTICE OF CONGRESS AND THE GROWTH OF THE
PRINCIPLE OF REQUIRED POLITICAL NEUTRALITY FOR CLASSIFIED PUBLIC
SERVANTS AS A SOUND ELEMENT FOR EFFICIENCY.  FN32  THE CONVICTION THAT
AN ACTIVELY PARTISAN GOVERNMENTAL PERSONNEL THREATENS GOOD
ADMINISTRATION HAS DEEPENED SINCE EX PARTE CURTIS.  CONGRESS RECOGNIZES
DANGER TO THE SERVICE IN THAT POLITICAL RATHER THAN OFFICIAL EFFORT MAY
EARN ADVANCEMENT AND TO THE PUBLIC IN THAT GOVERNMENTAL FAVOR MAY BE
CHANNELED THROUGH POLITICAL CONNECTIONS.  FN33 

IN UNITED STATES V. WURZBACH, 280 U.S. 396, THE DOCTRINE OF
LEGISLATIVE POWER OVER ACTIONS OF GOVERNMENTAL OFFICIALS WAS HELD VALID
WHEN EXTENDED TO MEMBERS OF CONGRESS.  THE MEMBERS OF CONGRESS WERE
PROHIBITED FROM RECEIVING CONTRIBUTIONS FOR "ANY POLITICAL PURPOSE
WHATEVER" FROM ANY OTHER FEDERAL EMPLOYEES.  PRIVATE CITIZENS WERE NOT
AFFECTED.  THE ARGUMENT OF UNCONSTITUTIONALITY BECAUSE OF INTERFERENCE
WITH THE POLITICAL RIGHTS OF A CITIZEN BY THAT TIME WAS DISMISSED IN A
SENTENCE.  COMPARE UNITED STATES V. THAYER, 209 U.S. 39. 

THE PROVISIONS OF SEC. 9 OF THE HATCH ACT AND THE CIVIL SERVICE RULE
1 ARE NOT DISSIMILAR IN PURPOSE FROM THE STATUTES AGAINST POLITICAL
CONTRIBUTIONS OF MONEY.  THE PROHIBITIONS NOW UNDER DISCUSSION ARE
DIRECTED AT POLITICAL CONTRIBUTIONS OF ENERGY BY GOVERNMENT EMPLOYEES. 
THESE CONTRIBUTIONS, TOO, HAVE A LONG BACKGROUND OF DISAPPROVAL N34. 
CONGRESS AND THE PRESIDENT ARE RESPONSIBLE FOR AN EFFICIENT PUBLIC
SERVICE.  IF, IN THEIR JUDGMENT, EFFICIENCY MAY BE BEST OBTAINED BY
PROHIBITING ACTIVE PARTICIPATION BY CLASSIFIED EMPLOYEES IN POLITICS AS
PARTY OFFICERS OR WORKERS, WE SEE NO CONSTITUTIONAL OBJECTION.  FN35 

ANOTHER CONGRESS MAY DETERMINE THAT, ON THE WHOLE, LIMITATIONS ON
ACTIVE POLITICAL MANAGEMENT BY FEDERAL PERSONNEL ARE UNWISE.  THE
TEACHING OF EXPERIENCE HAS EVIDENTLY LED CONGRESS TO ENACT THE HATCH
ACT PROVISIONS.  TO DECLARE THAT THE PRESENT SUPPOSED EVILS OF
POLITICAL ACTIVITY ARE BEYOND THE POWER OF CONGRESS TO REDRESS WOULD
LEAVE THE NATION IMPOTENT TO DEAL WITH WHAT MANY SINCERE MEN BELIEVE IS
A MATERIAL THREAT TO THE DEMOCRATIC SYSTEM.  CONGRESS IS NOT
POLITICALLY NAIVE OR REGARDLESS OF PUBLIC WELFARE OR THAT OF THE
EMPLOYEES.  IT LEAVES UNTOUCHED FULL PARTICIPATION BY EMPLOYEES IN
POLITICAL DECISIONS AT THE BALLOT BOX AND FORBIDS ONLY THE PARTISAN
ACTIVITY OF FEDERAL PERSONNEL DEEMED OFFENSIVE TO EFFICIENCY.  WITH
THAT LIMITATION ONLY, EMPLOYEES MAY MAKE THEIR CONTRIBUTIONS TO PUBLIC
AFFAIRS OR PROTECT THEIR OWN INTERESTS, AS BEFORE THE PASSAGE OF THE
ACT. 

THE ARGUMENT THAT POLITICAL NEUTRALITY IS NOT INDISPENSABLE TO A
MERIT SYSTEM FOR FEDERAL EMPLOYEES MAY BE ACCEPTED.  BUT BECAUSE IT IS
NOT INDISPENSABLE DOES NOT MEAN THAT IT IS NOT DESIRABLE OR
PERMISSIBLE.  MODERN AMERICAN POLITICS INVOLVES ORGANIZED POLITICAL
PARTIES.  MANY CLASSIFICATIONS OF GOVERNMENT EMPLOYEES HAVE BEEN
ACCUSTOMED TO WORK IN POLITICS - NATIONAL, STATE AND LOCAL - AS A
MATTER OF PRINCIPLE OR TO ASSURE THEIR TENURE.  CONGRESS MAY REASONABLY
DESIRE TO LIMIT PARTY ACTIVITY OF FEDERAL EMPLOYEES SO AS TO AVOID A
TENDENCY TOWARD A ONE-PARTY SYSTEM.  IT MAY HAVE CONSIDERED THAT
PARTIES WOULD BE MORE TRULY DEVOTED TO THE PUBLIC WELFARE IF PUBLIC
SERVANTS WERE NOT OVERACTIVE POLITICALLY. 

APPELLANTS URGE THAT FEDERAL EMPLOYEES ARE PROTECTED BY THE BILL OF
RIGHTS AND THAT CONGRESS MAY NOT "ENACT A REGULATION PROVIDING THAT NO
REPUBLICAN, JEW OR NEGRO SHALL BE APPOINTED TO FEDERAL OFFICE, OR THAT
NO FEDERAL EMPLOYEE SHALL ATTEND MASS OR TAKE ANY ACTIVE PART IN
MISSIONARY WORK."  NONE WOULD DENY SUCH LIMITATIONS ON CONGRESSIONAL
POWER BUT, BECAUSE THERE ARE SOME LIMITATIONS, IT DOES NOT FOLLOW THAT
A PROHIBITION AGAINST ACTING AS WARD LEADER OR WORKER AT THE POLLS IS
INVALID.  A READING OF THE ACT AND RULE 1, NOTES 2 AND 6, SUPRA,
TOGETHER WITH THE COMMISSION'S DETERMINATION  FN36  SHOWS THE WIDE
RANGE OF PUBLIC ACTIVITIES WITH WHICH THERE IS NO INTERFERENCE BY THE
LEGISLATION.  IT IS ONLY PARTISAN POLITICAL ACTIVITY THAT IS
INTERDICTED.  IT IS ACTIVE PARTICIPATION IN POLITICAL MANAGEMENT AND
POLITICAL CAMPAIGNS.  EXPRESSIONS, PUBLIC OR PRIVATE, ON PUBLIC
AFFAIRS, PERSONALITIES AND MATTERS OF PUBLIC INTEREST, NOT AN OBJECTIVE
OF PARTY ACTION, ARE UNRESTRICTED BY LAW SO LONG AS THE GOVERNMENT
EMPLOYEE DOES NOT DIRECT HIS ACTIVITIES TOWARD PARTY SUCCESS. 

IT IS URGED, HOWEVER, THAT CONGRESS HAS GONE FURTHER THAN NECESSARY
IN PROHIBITING POLITICAL ACTIVITY TO ALL TYPES OF CLASSIFIED
EMPLOYEES.  IT IS POINTED OUT BY APPELLANTS "THAT THE IMPARTIALITY OF
MANY OF THESE IS A MATTER OF COMPLETE INDIFFERENCE TO THE EFFECTIVE
PERFORMANCE" OF THEIR DUTIES.  FN37  MR. POOLE WOULD APPEAR TO BE A
GOOD ILLUSTRATION FOR APPELLANTS' ARGUMENT.  THE COMPLAINT STATES THAT
HE IS A ROLLER IN THE MINT.  WE TAKE IT THIS IS A JOB CALLING FOR THE
QUALITIES OF A SKILLED MECHANIC AND THAT IT DOES NOT INVOLVE CONTACT
WITH THE PUBLIC.  NEVERTHELESS, IF IN FREE TIME HE IS ENGAGED IN
POLITICAL ACTIVITY, CONGRESS MAY HAVE CONCLUDED THAT THE ACTIVITY MAY
PROMOTE OR RETARD HIS ADVANCEMENT OR PREFERMENT WITH HIS SUPERIORS. 
CONGRESS MAY HAVE THOUGHT THAT GOVERNMENT EMPLOYEES ARE HANDY ELEMENTS
FOR LEADERS IN POLITICAL POLICY TO USE IN BUILDING A POLITICAL
MACHINE.  FOR REGULATION OF EMPLOYEES IT IS NOT NECESSARY THAT THE ACT
REGULATED BE ANYTHING MORE THAN AN ACT REASONABLY DEEMED BY CONGRESS TO
INTERFERE WITH THE EFFICIENCY OF THE PUBLIC SERVICE.  THERE ARE
HUNDREDS OF THOUSANDS OF UNITED STATES EMPLOYEES WITH POSITIONS NO MORE
INFLUENTIAL UPON POLICY DETERMINATION THAN THAT OF MR. POOLE. 
EVIDENTLY WHAT CONGRESS FEARED WAS THE CUMULATIVE EFFECT ON EMPLOYEE
MORALE OF POLITICAL ACTIVITY BY ALL EMPLOYEES WHO COULD BE INDUCED TO
PARTICIPATE ACTIVELY.  IT DOES NOT SEEM TO US AN UNCONSTITUTIONAL BASIS
FOR LEGISLATION. 

THERE IS A SUGGESTION THAT ADMINISTRATIVE WORKERS MAY BE BARRED,
CONSTITUTIONALLY, FROM POLITICAL MANAGEMENT AND POLITICAL CAMPAIGNS
WHILE THE INDUSTRIAL WORKERS MAY NOT BE BARRED, CONSTITUTIONALLY,
WITHOUT AN ACT "NARROWLY AND SELECTIVELY DRAWN TO DEFINE AND PUNISH THE
SPECIFIC CONDUCT."  A READY ANSWER, IT SEEMS TO US, LIES IN THE FACT
THAT THE PROHIBITION OF SEC. 9(A) OF THE HATCH ACT "APPLIES WITHOUT
DISCRIMINATION TO ALL EMPLOYEES WHETHER INDUSTRIAL OR ADMINISTRATIVE"
AND THAT THE CIVIL SERVICE RULES, BY SEC. 15 MADE A PART OF THE HATCH
ACT, MAKES CLEAR THAT INDUSTRIAL WORKERS ARE COVERED IN THE PROHIBITION
AGAINST POLITICAL ACTIVITY.  CONGRESS HAS DETERMINED THAT THE PRESENCE
OF GOVERNMENT EMPLOYEES, WHETHER INDUSTRIAL OR ADMINISTRATIVE, IN THE
RANKS OF POLITICAL PARTY WORKERS IS BAD.  WHATEVER DIFFERENCES THERE
MAY BE BETWEEN ADMINISTRATIVE EMPLOYEES OF THE GOVERNMENT AND
INDUSTRIAL WORKERS IN ITS EMPLOY ARE DIFFERENCES IN DETAIL SO FAR AS
THE CONSTITUTIONAL POWER UNDER REVIEW IS CONCERNED.  WHETHER THERE ARE
SUCH DIFFERENCES AND WHAT WEIGHT TO ATTACH TO THEM, ARE ALL MATTERS OF
DETAIL FOR CONGRESS.  WE DO NOT KNOW WHETHER THE NUMBER OF FEDERAL
EMPLOYEES WILL EXPAND OR CONTRACT; WHETHER THE NEED FOR REGULATION OF
THEIR POLITICAL ACTIVITIES WILL INCREASE OR DIMINISH.  THE USE OF THE
CONSTITUTIONAL POWER OF REGULATION IS FOR CONGRESS, NOT FOR THE
COURTS. 

WE HAVE SAID THAT CONGRESS MAY REGULATE THE POLITICAL CONDUCT OF
GOVERNMENT EMPLOYEES "WITHIN REASONABLE LIMITS," EVEN THOUGH THE
REGULATION TRENCHES TO SOME EXTENT UPON UNFETTERED POLITICAL ACTION. 
THE DETERMINATION OF THE EXTENT TO WHICH POLITICAL ACTIVITIES OF
GOVERNMENTAL EMPLOYEES SHALL BE REGULATED LIES PRIMARILY WITH
CONGRESS.  COURTS WILL INTERFERE ONLY WHEN SUCH REGULATION PASSES
BEYOND THE GENERALLY EXISTING CONCEPTION OF GOVERNMENTAL POWER.  THAT
CONCEPTION DEVELOPS FROM PRACTICE, HISTORY, AND CHANGING EDUCATIONAL,
SOCIAL AND ECONOMIC CONDITIONS.  THE REGULATION OF SUCH ACTIVITIES AS
POOLE CARRIED ON HAS THE APPROVAL OF LONG PRACTICE BY THE COMMISSION,
COURT DECISIONS UPON SIMILAR PROBLEMS AND A LARGE BODY OF INFORMED
PUBLIC OPINION.  CONGRESS AND THE ADMINISTRATIVE AGENCIES HAVE
AUTHORITY OVER THE DISCIPLINE AND EFFICIENCY OF THE PUBLIC SERVICE. 
WHEN ACTIONS OF CIVIL SERVANTS IN THE JUDGMENT OF CONGRESS MENACE THE
INTEGRITY AND THE COMPETENCY OF THE SERVICE, LEGISLATION TO FORESTALL
SUCH DANGER AND ADEQUATE TO MAINTAIN ITS USEFULNESS IS REQUIRED.  THE
HATCH ACT IS THE ANSWER OF CONGRESS TO THIS NEED.  WE CANNOT SAY WITH
SUCH A BACKGROUND THAT THESE RESTRICTIONS ARE UNCONSTITUTIONAL. 

POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNS AS THE SAME ACTIVITIES THAT
THE UNITED STATES CIVIL SERVICE COMMISSION HAS DETERMINED TO BE
PROHIBITED TO CLASSIFIED CIVIL SERVICE EMPLOYEES BY THE PROVISIONS OF
THE CIVIL SERVICE RULES WHEN SEC. 15 TOOK EFFECT JULY 19, 1940.  54
STAT. 767.  THE ACTIVITIES OF MR. POOLE, AS WARD EXECUTIVE COMMITTEEMAN
AND A WORKER AT THE POLLS, OBVIOUSLY FALL WITHIN THE PROHIBITIONS OF
SEC. 9 OF THE HATCH ACT AGAINST TAKING AN ACTIVE PART IN POLITICAL
MANAGEMENT AND POLITICAL CAMPAIGNS.  THEY ARE ALSO COVERED BY THE PRIOR
DETERMINATIONS OF THE COMMISSION.  FN38  WE NEED TO EXAMINE NO FURTHER
AT THIS TIME INTO THE VALIDITY OF THE DEFINITION OF POLITICAL ACTIVITY
AND SEC. 15.  FN39 

THE JUDGMENT OF THE DISTRICT COURT IS ACCORDINGLY AFFIRMED. 

FN1  AUGUST 2, 1939, 53 STAT. 1147; JULY 19, 1940, 54 STAT. 767; 56
STAT. 181, 986; 58 STAT. 136, 148, 727; 59 STAT. 108, 658; 60 STAT.
937.  ONLY THE FIRST TWO ARE IMPORTANT FOR CONSIDERATION OF THIS CASE. 

FN2  18 U.S.C. SEC. 61H, AS AMENDED: 

"(A)  IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN THE EXECUTIVE
BRANCH OF THE FEDERAL GOVERNMENT, OR ANY AGENCY OR DEPARTMENT THEREOF,
TO USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF
INTERFERING WITH AN ELECTION OR AFFECTING THE RESULT THEREOF.  NO
OFFICER OR EMPLOYEE IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT,
OR ANY AGENCY OR DEPARTMENT THEREOF, EXCEPT A PART-TIME OFFICER OR PART
TIME EMPLOYEE WITHOUT COMPENSATION OR WITH NOMINAL COMPENSATION SERVING
IN CONNECTION WITH THE EXISTING WAR EFFORT, OTHER THAN IN ANY CAPACITY
RELATING TO THE PROCUREMENT OR MANUFACTURE OF WAR MATERIAL SHALL TAKE
ANY ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS.  ALL
SUCH PERSONS SHALL RETAIN THE RIGHT TO VOTE AS THEY MAY CHOOSE AND TO
EXPRESS THEIR OPINIONS ON ALL POLITICAL SUBJECTS AND CANDIDATES.  FOR
THE PURPOSES OF THIS SECTION THE TERM 'OFFICER' OR 'EMPLOYEE' SHALL NOT
BE CONSTRUED TO INCLUDE (1) THE PRESIDENT AND VICE PRESIDENT OF THE
UNITED STATES; (2) PERSONS WHOSE COMPENSATION IS PAID FROM THE
APPROPRIATION FOR THE OFFICE OF THE PRESIDENT; (3) HEADS AND ASSISTANT
HEADS OF EXECUTIVE DEPARTMENTS; (4) OFFICERS WHO ARE APPOINTED BY THE
PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND WHO
DETERMINE POLICIES TO BE PURSUED BY THE UNITED STATES IN ITS RELATIONS
WITH FOREIGN POWERS OR IN THE NATIONWIDE ADMINISTRATION OF FEDERAL
LAWS. 

"(B)  ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE
IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND
THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS FOR
SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH
PERSON."  53 STAT. 1147, 1148; 54 STAT. 767; 56 STAT. 181. 

FN3  18 U.S.C. SEC. 61O: 

"THE PROVISIONS OF THIS SUBCHAPTER WHICH PROHIBIT PERSONS TO WHOM
SUCH PROVISIONS APPLY FROM TAKING ANY ACTIVE PART IN POLITICAL
MANAGEMENT OR IN POLITICAL CAMPAIGNS SHALL BE DEEMED TO PROHIBIT THE
SAME ACTIVITIES ON THE PART OF SUCH PERSONS AS THE UNITED STATES CIVIL
SERVICE COMMISSION HAS HERETOFORE DETERMINED ARE AT THE TIME THIS
CLASSIFIED CIVIL SERVICE OF THE UNITED STATES BY THE PROVISIONS OF THE
CIVIL-SERVICE RULES PROHIBITING SUCH EMPLOYEES FROM TAKING ANY ACTIVE
PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS."  54 STAT. 767,
771. 

FN4  SEE CIVIL SERVICE ACT (1883), SEC. 2, 22 STAT. 403-404: 

"SEC. 2.  THAT IT SHALL BE THE DUTY OF SAID COMMISSIONERS: 

"FIRST.  TO AID THE PRESIDENT, AS HE MAY REQUEST, IN PREPARING
SUITABLE RULES FOR CARRYING THIS ACT INTO EFFECT, AND WHEN SAID RULES
SHALL HAVE BEEN PROMULGATED IT SHALL BE THE DUTY OF ALL OFFICERS OF THE
UNITED STATES IN THE DEPARTMENTS AND OFFICES TO WHICH ANY SUCH RULES
MAY RELATE TO AID, IN ALL PROPER WAYS, IN CARRYING SAID RULES, AND ANY
MODIFICATIONS THEREOF, INTO EFFECT. 

"SECOND.  AND, AMONG OTHER THINGS, SAID RULES SHALL PROVIDE AND
DECLARE, AS NEARLY AS THE CONDITIONS OF GOOD ADMINISTRATION WILL
WARRANT, AS FOLLOWS: 

    .         .         .         .         . 

"SIXTH, THAT NO PERSON IN SAID SERVICE HAS ANY RIGHT TO USE HIS
OFFICIAL AUTHORITY OR INFLUENCE TO COERCE THE POLITICAL ACTION OF ANY
PERSON OR BODY." 

5 U.S.C. SEC. 631: 

"THE PRESIDENT IS AUTHORIZED TO  ...  ESTABLISH REGULATIONS FOR THE
CONDUCT OF PERSONS WHO MAY RECEIVE APPOINTMENTS IN THE CIVIL SERVICE." 

FIRST ANNUAL REPORT, CIVIL SERVICE COMMISSION, H.R. EX. DOC. NO. 105,
48TH CONG., 1ST SESS., P. 45: 

"IN THE EXERCISE OF THE POWER VESTED IN THE PRESIDENT BY THE
CONSTITUTION, AND BY VIRTUE OF THE 1753D SECTION OF THE REVISED
STATUTES, AND OF THE CIVIL SERVICE ACT APPROVED JANUARY 16, 1883, THE
FOLLOWING RULES FOR THE REGULATION AND IMPROVEMENT OF THE EXECUTIVE
CIVIL SERVICE ARE HEREBY AMENDED AND PROMULGATED:

     RULE I. 

"NO PERSON IN SAID SERVICE SHALL USE HIS OFFICIAL AUTHORITY OR
INFLUENCE EITHER TO COERCE THE POLITICAL ACTION OF ANY PERSON OR BODY
OR TO INTERFERE WITH ANY ELECTION." 

EXECUTIVE ORDER NO. 642, JUNE 3, 1907(AMENDED TO CONSOLIDATE WITHOUT
CHANGING WORDING, EXECUTIVE ORDER NO. 655, JUNE 15, 1907); TWENTY
FOURTH ANNUAL REPORT, CIVIL SERVICE COMMISSION, HOUSE DOC. NO. 600,
60TH CONG., 1ST SESS., P. 104: 

"SECTION 1 OF RULE I OF THE CIVIL-SERVICE RULES IS HEREBY AMENDED TO
READ AS FOLLOWS: 

"NO PERSON IN THE EXECUTIVE CIVIL SERVICE SHALL USE HIS OFFICIAL
AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH AN ELECTION
OR AFFECTING THE RESULT THEREOF.  PERSONS WHO, BY THE PROVISIONS OF
THESE RULES ARE IN THE COMPETITIVE CLASSIFIED SERVICE, WHILE RETAINING
THE RIGHT TO VOTE AS THEY PLEASE AND TO EXPRESS PRIVATELY THEIR
OPINIONS ON ALL POLITICAL SUBJECTS, SHALL TAKE NO ACTIVE PART IN
POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS." 

FN5  CIVIL SERVICE RULES 15, 3 FED. REG. 1525. 

FN6  5 C.F.R., CUM. SUPP., SEC. 1.1:  "NO INTERFERENCE WITH
ELECTIONS.  NO PERSON IN THE EXECUTIVE CIVIL SERVICE SHALL USE HIS
OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH AN
ELECTION OR AFFECTING THE RESULTS THEREOF.  PERSONS WHO BY THE
PROVISIONS OF THE RULES IN THIS CHAPTER ARE IN THE COMPETITIVE
CLASSIFIED SERVICE, WHILE RETAINING THE RIGHT TO VOTE AS THEY PLEASE
AND TO EXPRESS THEIR OPINION ON ALL POLITICAL SUBJECTS, SHALL TAKE NO
ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS." 

THE COMMISSION FINDS, AFTER DUE NOTICE AND OPPORTUNITY FOR EXPLANATION,
THAT ANY PERSON HAS BEEN APPOINTED TO OR IS HOLDING ANY POSITION,
WHETHER BY ORIGINAL APPOINTMENT, PROMOTION, ASSIGNMENT, TRANSFER, OR
REINSTATEMENT, IN VIOLATION OF THE CIVIL SERVICE ACT OR RULES, OR OF
ANY EXECUTIVE ORDER OR ANY REGULATION OF THE COMMISSION, OR THAT ANY
EMPLOYEE SUBJECT THERETO HAS VIOLATED SUCH ACT, RULES, ORDERS, OR
REGULATIONS, IT SHALL CERTIFY THE FACTS TO THE PROPER APPOINTING
OFFICER WITH SPECIFIC INSTRUCTIONS AS TO DISCIPLINE OR DISMISSAL OF THE
PERSON OR EMPLOYEE AFFECTED.  IF THE APPOINTING OFFICER FAILS TO CARRY
OUT THE INSTRUCTIONS OF THE COMMISSION WITHIN 10 DAYS AFTER RECEIPT
THEREOF, THE COMMISSION SHALL CERTIFY THE FACTS TO THE PROPER
DISBURSING AND AUDITING OFFICERS, AND SUCH OFFICERS SHALL MAKE NO
PAYMENT OR ALLOWANCE OF THE SALARY OR WAGES OF ANY SUCH PERSON OR
EMPLOYEE THEREAFTER ACCRUING." 

SEE E.O. 8705, MARCH 5, 1941, 6 FED. REG. 1313. 

FN7  SEE NOTE 4, SUPRA, AND 5 C.F R. SEC. 1.1, JUNE 1, 1938. 

A CHANGE OCCURRED ALSO IN RULE 15.  THIS WAS TO COMPLY WITH A RULING
OF THE ATTORNEY GENERAL THAT THE HATCH ACT MADE REMOVAL FROM OFFICE A
MANDATORY PENALTY FOR FORBIDDEN POLITICAL ACTIVITY.  40 OP. A.G.,
POLITICAL ACTIVITY BY GOVERNMENT EMPLOYEES, JANUARY 8, 1941.  SEE NOTE
5, SUPRA, FOR RULE 15 PRIOR TO HATCH ACT. 

FN8  SEE 28 U.S.C. SEC. 380(A); SEC. 11-306 DISTRICT OF COLUMBIA
CODE. 

FN9  JUDICIAL CODE SEC. 274D; 28 U.S.C. SEC. 400. 

FN10  NO CONTENTION THAT APPELLANT, UNITED PUBLIC WORKERS OF AMERICA
(C.I.O.), LACKED CAPACITY TO BRING THIS ACTION IS MADE BY APPELLEES. 
WE NEED NOT CONSIDER THE QUESTION HERE.  MCCANDLESS V. FURLAUD, 293
U.S. 67, 73-74.  SEE FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP., 328
U.S. 275. 

FN11  "IN DISCHARGE OF THEIR DUTIES OF CITIZENSHIP, OF THEIR RIGHT TO
VOTE, AND IN EXERCISE OF THEIR CONSTITUTIONAL RIGHTS OF FREEDOM OF
SPEECH, OF THE PRESS, OF ASSEMBLY, AND THE RIGHT TO ENGAGE IN POLITICAL
ACTIVITY, THE INDIVIDUAL PLAINTIFFS DESIRE TO ENGAGE IN THE FOLLOWING
ACTS: WRITE FOR PUBLICATION LETTERS AND ARTICLES IN SUPPORT OF
CANDIDATES FOR OFFICE; BE CONNECTED EDITORIALLY WITH PUBLICATIONS WHICH
ARE IDENTIFIED WITH THE LEGISLATIVE PROGRAM OF UFWA (FORMER NAME OF THE
PRESENT UNION APPELLANT) AND CANDIDATES WHO SUPPORT IT; SOLICIT VOTES,
AID IN GETTING OUT VOTERS, ACT AS ACCREDITED CHECKER, WATCHER, OR
CHALLENGER; TRANSPORT VOTERS TO AND FROM THE POLLS WITHOUT COMPENSATION
THEREFOR; PARTICIPATE IN AND HELP IN ORGANIZING POLITICAL PARADES;
INITIATE PETITIONS, AND CANVASS FOR THE SIGNATURES OF OTHERS ON SUCH
PETITIONS; SERVE AS PARTY WARD COMMITTEEMAN OR OTHER PARTY OFFICIAL;
AND PERFORM ANY AND ALL ACTS NOT PROHIBITED BY ANY PROVISION OF LAW
OTHER THAN THE SECOND SENTENCE OF SECTION 9(A) AND SECTION 15 OF THE
HATCH ACT, WHICH CONSTITUTE TAKING AN ACTIVE PART IN POLITICAL
MANAGEMENT AND POLITICAL CAMPAIGNS."    FN12  "THE SECOND SENTENCE OF
UNITED STATES AS A DEPRIVATION OF FREEDOM OF SPEECH, OF THE PRESS, AND
OF ASSEMBLY IN VIOLATION OF THE FIRST AMENDMENT. 

"THE SECOND SENTENCE OF SECTION 9(A) OF THE HATCH ACT IS REPUGNANT TO
THE CONSTITUTION OF THE UNITED STATES AS A DEPRIVATION OF THE
FUNDAMENTAL RIGHT OF THE PEOPLE OF THE UNITED STATES TO ENGAGE IN
POLITICAL ACTIVITY, RESERVED TO THE PEOPLE OF THE UNITED STATES BY THE
NINTH AND TENTH AMENDMENTS. 

"THE SECOND SENTENCE OF SECTION 9(A) OF THE HATCH ACT IS REPUGNANT TO
THE CONSTITUTION OF THE UNITED STATES, SINCE IT UNREASONABLY PROHIBITS
FEDERAL EMPLOYEES FROM ENGAGING IN ACTIVITIES WHICH MAY BE LAWFULLY
CARRIED ON BY PERSONS WHO ARE NOT FEDERAL EMPLOYEES, THUS CONSTITUTING
A DEPRIVATION OF LIBERTY IN VIOLATION OF THE FIFTH AMENDMENT. 

"THE SECOND SENTENCE OF SECTION 9(A) OF THE HATCH ACT IS REPUGNANT TO
THE CONSTITUTION OF THE UNITED STATES SINCE IT EFFECTS AN ARBITRARY AND
GROSSLY UNREASONABLE DISCRIMINATION BETWEEN EMPLOYEES OF THE FEDERAL
GOVERNMENT IN THE CLASSIFIED CIVIL SERVICE SUBJECT TO ITS PROVISIONS
AND EMPLOYEES SPECIFICALLY EXEMPTED THEREFROM, IN VIOLATION OF THE
FIFTH AMENDMENT. 

"THE SECOND SENTENCE OF SECTION 9(A) OF THE HATCH ACT IS REPUGNANT TO
THE CONSTITUTION OF THE UNITED STATES SINCE IT IS SO VAGUE AND
INDEFINITE AS TO PROHIBIT LAWFUL ACTIVITIES AS WELL AS ACTIVITIES WHICH
ARE PROPERLY MADE UNLAWFUL BY OTHER PROVISIONS OF LAW, IN VIOLATION OF
THE FIFTH AMENDMENT." 

FN13  RULES OF THE SUPREME COURT OF THE UNITED STATES, RULE 47: 

"APPEALS TO THIS COURT UNDER THE ACT OF AUGUST 24, 1937, SHALL BE
GOVERNED, AS FAR AS MAY BE, BY THE RULES OF THIS COURT REGULATING THE
PROCEDURE ON APPEAL IN OTHER CASES FROM COURTS OF THE UNITED STATES;
...  THE RECORD SHALL BE MADE UP AND THE CASE DOCKETED IN THIS COURT
WITHIN SIXTY DAYS FROM THE TIME THE APPEAL IS ALLOWED." 

FN14  ID., RULE 11:  "1.  IT SHALL BE THE DUTY OF THE APPELLANT TO
DOCKET THE CASE AND FILE THE RECORD THEREOF WITH THE CLERK OF THIS
COURT BY OR BEFORE THE RETURN DAY, WHETHER IN VACATION OR IN TERM
TIME.  BUT, FOR GOOD CAUSE SHOWN, THE JUSTICE OR JUDGE WHO SIGNED THE
CITATION, OR ANY JUSTICE OF THIS COURT, MAY ENLARGE THE TIME, BEFORE
ITS EXPIRATION, THE ORDER OF ENLARGEMENT TO BE FILED WITH THE CLERK OF
THIS COURT.  IF THE APPELLANT SHALL FAIL TO COMPLY WITH THIS RULE, THE
APPELLEE MAY HAVE THE CAUSE DOCKETED AND THE APPEAL DISMISSED UPON
PRODUCING A CERTIFICATE, WHETHER IN TERM OR VACATION, FROM THE CLERK OF
THE COURT WHEREIN THE JUDGMENT OR DECREE WAS RENDERED, STATING THE CASE
AND CERTIFYING THAT SUCH APPEAL HAS BEEN DULY ALLOWED.  AND IN NO CASE
SHALL THE APPELLANT BE ENTITLED TO DOCKET THE CAUSE AND FILE THE RECORD
AFTER THE APPEAL SHALL HAVE BEEN DISMISSED UNDER THIS RULE, UNLESS BY
SPECIAL LEAVE OF THE COURT." 

FN15  STEPS ALLOWED IN THE DISTRICT COURT AFTER THE ALLOWANCE OF
APPEAL, SUCH AS PREPARATION OF THE RECORD, EXTENSION OF TIME AND COST
OR SUPERSEDEAS BONDS, ARE FOR CONVENIENCE TAKEN IN THE COURT POSSESSED
OF THE RECORD.  RULES 10, 11 AND 36, SUPREME COURT; RULE 72, RULES OF
CIVIL PROCEDURE. 

FN16  3 CRANCH 239; BINGHAM V. MORRIS, 7 CRANCH 99; SPARROW V.
STRONG, 3 WALL.  97, 103.  COMPARE GRIGSBY V. PURCELL, 99 U.S. 505. 

FN17  COMPARE GEORGIA LUMBER CO. V. COMPANIA, 323 U.S. 334. 

FN18  "AT THIS TIME, WHEN THE FATE OF THE ENTIRE WORLD IS IN THE
BALANCE I BELIEVE IT IS NOT ONLY PROPER BUT AN OBLIGATION FOR ALL
CITIZENS TO PARTICIPATE ACTIVELY IN THE MAKING OF THE VITAL POLITICAL
DECISIONS ON WHICH THE SUCCESS OF THE WAR AND THE PERMANENCE OF THE
PEACE TO FOLLOW SO LARGELY DEPEND.  FOR THE PURPOSE OF PARTICIPATING IN
THE MAKING OF THESE DECISIONS IT IS MY EARNEST DESIRE TO ENGAGE
ACTIVELY IN POLITICAL MANAGEMENT AND POLITICAL CAMPAIGNS.  I WISH TO
ENGAGE IN SUCH ACTIVITY UPON MY OWN TIME, AS A PRIVATE CITIZEN. 

"I WISH TO ENGAGE IN SUCH ACTIVITIES ON BEHALF OF THOSE CANDIDATES
FOR PUBLIC OFFICE WHO I BELIEVE WILL BEST SERVE THE NEEDS OF THIS
COUNTRY AND WITH THE OBJECT OF PERSUADING OTHERS OF THE CORRECTNESS OF
MY JUDGMENTS AND OF ELECTING THE CANDIDATES OF MY CHOICE.  THIS
OBJECTIVE I WISH TO PURSUE BY ALL PROPER MEANS SUCH AS ENGAGING IN
DISCUSSION, BY SPEECHES TO CONVENTIONS, RALLIES AND OTHER ASSEMBLAGES,
BY PUBLICIZING MY VIEWS IN LETTERS AND ARTICLES FOR PUBLICATION IN
NEWSPAPERS AND OTHER PERIODICALS, BY AIDING IN THE CAMPAIGN OF
CANDIDATES FOR POLITICAL OFFICE BY POSTING BANNERS AND POSTERS IN
PUBLIC PLACES, BY DISTRIBUTING LEAFLETS, BY 'RINGING DOORBELLS', BY
ADDRESSING CAMPAIGN LITERATURE, AND BY DOING ANY AND ALL ACTS OF LIKE
CHARACTER REASONABLY DESIGNED TO ASSIST IN THE ELECTION OF CANDIDATES I
FAVOR. 

"I DESIRE TO ENGAGE IN THESE ACTIVITIES FREELY, OPENLY, AND WITHOUT
CONCEALMENT.  HOWEVER, I UNDERSTAND THAT THE SECOND SENTENCE OF SECTION
9(A) OF THE HATCH ACT AND THE RULES OF THE C.S.C. PROVIDE THAT IF I
ENGAGE IN THIS ACTIVITY, THE CIVIL SERVICE COMMISSION WILL ORDER THAT I
BE DISMISSED FROM FEDERAL EMPLOYMENT.  SUCH DEPRIVATION OF MY JOB IN
THE FEDERAL GOVERNMENT WOULD BE A SOURCE OF IMMEDIATE AND SERIOUS
FINANCIAL LOSS AND OTHER INJURY TO ME. 

"AT THE LAST CONGRESSIONAL ELECTION I WAS VERY MUCH INTERESTED IN THE
OUTCOME OF THE CAMPAIGN AND OFFERED TO HELP THE PARTY OF MY CHOICE BY
BEING A WATCHER AT THE POLLS.  I OBTAINED A WATCHER'S CERTIFICATE BUT I
WAS ADVISED THAT THERE MIGHT BE SOME QUESTION OF MY RIGHT TO USE THE
CERTIFICATE AND RETAIN MY FEDERAL EMPLOYMENT.  THEREFORE, ON NOVEMBER
1, 1943, THE DAY BEFORE ELECTION, I CALLED THE REGIONAL OFFICE OF THE
CIVIL SERVICE COMMISSION IN PHILADELPHIA AND SPOKE TO A PERSON WHO GAVE
HIS NAME AS  ...  MR....  STATED THAT IF I USED MY WATCHER'S
CERTIFICATE, THE CIVIL SERVICE COMMISSION WOULD SEE THAT I WAS
DISMISSED FROM MY JOB AT THE  ...  FOR VIOLATION OF THE HATCH ACT.  I,
THEREFORE, DID NOT USE THE CERTIFICATE AS I HAD INTENDED. 

"I BELIEVE THAT CONGRESS MAY NOT CONSTITUTIONALLY ABRIDGE MY RIGHT TO
ENGAGE IN THE POLITICAL ACTIVITIES MENTIONED ABOVE.  HOWEVER, UNLESS
THE COURTS PREVENT THE CIVIL SERVICE COMMISSION FROM ENFORCING THIS
UNCONSTITUTIONAL LAW, I WILL BE UNABLE FREELY TO EXERCISE MY RIGHTS AS
A CITIZEN."  (IDENTIFYING WORDS OMITTED.) 

FN19  CORRESPONDENCE & PUBLIC PAPERS OF JOHN JAY, VOL. 3, P. 486;
HAYBURN'S CASE AND NOTES, 2 DALL.  409; ALABAMA V. ARIZONA, 291 U.S.
286, 291; ALABAMA STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450,
461. 

FN20  ELECTRIC BOND & SHARE CO. V. SECURITIES AND EXCHANGE
COMMISSION, 303 U.S. 419, 443; UNITED STATES V. APPALACHIAN ELECTRIC
POWER CO., 311 U.S. 377, 423; ALABAMA STATE FEDERATION OF LABOR V.
MCADORY, SUPRA, 461, AND CASES CITED; COFFMAN V. BREEZE CORPORATIONS,
323 U.S. 316, 324, AND CASES CITED. 

FN21  ALTVATER V. FREEMAN, 319 U.S. 359, 363. 

FN22  IT HAS LONG BEEN THIS COURT'S "CONSIDERED PRACTICE NOT TO
DECIDE ABSTRACT, HYPOTHETICAL OR CONTINGENT QUESTIONS,  ...  OR TO
DECIDE ANY CONSTITUTIONAL QUESTION IN ADVANCE OF THE NECESSITY FOR ITS
DECISION,  ...  OR TO FORMULATE A RULE OF CONSTITUTIONAL LAW BROADER
THAN IS REQUIRED BY THE PRECISE FACTS TO WHICH IT IS TO BE APPLIED,
...  OR TO DECIDE ANY CONSTITUTIONAL QUESTION EXCEPT WITH REFERENCE TO
THE PARTICULAR FACTS TO WHICH IT IS TO BE APPLIED, ..."  ALABAMA STATE
FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 461, AND CASES CITED. 
SEE ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE CO., 329 U.S. 129. 

FN23  "I HAVE FOR A LONG TIME BEEN INTERESTED IN POLITICAL
ACTIVITIES.  BOTH BEFORE AND SINCE MY EMPLOYMENT IN THE UNITED STATES
MINT, I HAVE TAKEN AN ACTIVE PART IN POLITICAL CAMPAIGNS AND POLITICAL
MANAGEMENT.  IN THE 28TH WARD, 7TH DIVISION IN THE CITY OF PHILADELPHIA
I AM AND HAVE BEEN A WARD EXECUTIVE COMMITTEEMAN.  IN THAT POSITION I
HAVE ON MANY OCCASIONS TAKEN AN ACTIVE PART IN POLITICAL MANAGEMENT AND
POLITICAL CAMPAIGNS.  I HAVE VISITED THE RESIDENTS OF MY WARD AND
SOLICITED THEM TO SUPPORT MY PARTY AND ITS CANDIDATES; I HAVE ACTED AS
A WATCHER AT THE POLLS; I HAVE CONTRIBUTED MONEY TO HELP PAY ITS
EXPENSES; I HAVE CIRCULATED CAMPAIGN LITERATURE, PLACED BANNERS AND
POSTERS IN PUBLIC PLACES, DISTRIBUTED LEAFLETS, ASSISTED IN ORGANIZING
POLITICAL RALLIES AND ASSEMBLIES, AND HAVE DONE ANY AND ALL ACTS WHICH
WERE ASKED OF ME IN MY CAPACITY AS A WARD EXECUTIVE COMMITTEEMAN.  I
HAVE ENGAGED IN THESE ACTIVITIES BOTH BEFORE AND AFTER MY EMPLOYMENT IN
THE UNITED STATES MINT.  I INTEND TO CONTINUE TO ENGAGE IN THESE
ACTIVITIES ON MY OWN TIME AS A PRIVATE CITIZEN, OPENLY, FREELY, AND
WITHOUT CONCEALMENT. 

"HOWEVER, I HAVE BEEN SERVED WITH A PROPOSED ORDER OF THE UNITED
STATES CIVIL SERVICE COMMISSION, DATED JANUARY 12, 1944, WHICH ADVISES
ME THAT BECAUSE OF THE POLITICAL ACTIVITIES MENTIONED ABOVE, AND FOR NO
OTHER REASON, 'IT IS,  ..., THE OPINION OF THIS COMMISSION THAT GEORGE
P. POOLE, AN EMPLOYEE OF THE UNITED STATES MINT AT PHILADELPHIA,
PENNSYLVANIA, HAS BEEN GUILTY OF POLITICAL ACTIVITY IN VIOLATION OF
CHARGES THAT I HAVE ENGAGED IN POLITICAL ACTIVITY, I WILL BE DISMISSED
FROM MY POSITION AS A ROLLER IN THE UNITED STATES MINT AT PHILADELPHIA,
PENNSYLVANIA." 

FN24  THE TENTATIVE CHARGE AND FINDING READS:

                                  I. 

"IT IS CHARGED:  THAT  ... 

"THE SAID GEORGE P. POOLE HELD THE POLITICAL PARTY OFFICE OF
DEMOCRATIC WARD EXECUTIVE COMMITTEEMAN IN THE CITY OF PHILADELPHIA,
PENNSYLVANIA. 

"THE SAID GEORGE P. POOLE WAS POLITICALLY ACTIVE BY AIDING AND
ASSISTING THE DEMOCRATIC PARTY IN THE CAPACITY OF WORKER AT THE POLLS
ON GENERAL ELECTION DAY, NOVEMBER 5, 1940, AND ASSISTED IN THE
DISTRIBUTION OF FUNDS IN PAYING PARTY WORKERS FOR THEIR SERVICES ON
GENERAL ELECTION DAY, NOVEMBER 5, 1940." 

          III. 

"THE ABOVE DESCRIBED ACTIVITY CONSTITUTES TAKING AN ACTIVE PART IN
POLITICAL MANAGEMENT AND IN A POLITICAL CAMPAIGN IN CONTRAVENTION OF
COMMISSIONERS THEREUNDER." 

FN25  MARYLAND CASUALTY CO. V. PACIFIC COAL & OIL CO., 312 U.S. 270,
273; ALTVATER V. FREEMAN, 319 U.S. 359, 364; NASHVILLE, C. & ST. L. RY.
V. WALLACE, 288 U.S. 249, 260. 

FN26  28 U.S.C. SEC. 400:  "IN CASES OF ACTUAL CONTROVERSY EXCEPT
WITH RESPECT TO FEDERAL TAXES THE COURTS OF THE UNITED STATES SHALL
HAVE POWER UPON PETITION, DECLARATION, COMPLAINT, OR OTHER APPROPRIATE
PLEADINGS TO DECLARE RIGHTS AND OTHER LEGAL RELATIONS OF ANY INTERESTED
PARTY PETITIONING FOR SUCH DECLARATION, WHETHER OR NOT FURTHER RELIEF
IS OR COULD BE PRAYED, AND SUCH DECLARATION SHALL HAVE THE FORCE AND
EFFECT OF A FINAL JUDGMENT OR DECREE AND BE REVIEWABLE AS SUCH." 

AETNA LIFE INSURANCE CO. V. HAWORTH, 300 U.S. 227, 241; NASHVILLE, C.
& ST. L. RY. V. WALLACE, 288 U.S. 249, 264. 

FN27  SEE WHITE V. BERRY, 171 U.S. 366, 377; IN RE SAWYER, 124 U.S.
200, 212. 

FN28  WE AGREE WITH THE GOVERNMENT THAT THE COMPLAINT DOES NOT FAIL
TO STATE A CAUSE OF ACTION AGAINST THE COMMISSION BECAUSE IT SEEKS
RELIEF AGAINST THE COMMISSION'S ACTION UNDER THE HATCH ACT INSTEAD OF
RULE 1 OF THE COMMISSION.  SO FAR AS POOLE'S CONTROVERSY IS CONCERNED,
THE ACT AND THE RULE ARE THE SAME. 

FN29  IN LABOR-MANAGEMENT RELATIONSHIPS, IT HAS BEEN RECOGNIZED BY
THIS COURT THAT CIRCUMSTANCES MIGHT JUSTIFY THE PROHIBITION BY
EMPLOYERS OF UNION ACTIVITY BY EMPLOYEES ON THE EMPLOYER'S PROPERTY,
EVEN THOUGH CARRIED OUT DURING NON-WORKING HOURS.  REPUBLIC AVIATION
CORP. V. NATIONAL LABOR RELATIONS BOARD, 324 U.S. 793, 803. 

FN30  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 571; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 304, 310; SCHNEIDER V. STATE, 308 U.S. 147,
165; DE JONGE V. OREGON, 299 U.S. 353, 364; COX V. NEW HAMPSHIRE, 312
U.S. 569, 574; PRINCE V. MASSACHUSETTS, 321 U.S. 158, 169; REYNOLDS V.
UNITED STATES, 98 U.S. 145. 

FN31  106 U.S. 376-77:  "...  EVERY CITIZEN HAVING THE PROPER
QUALIFICATIONS HAS THE RIGHT TO ACCEPT OFFICE, AND TO BE A CANDIDATE
THEREFOR.  THIS IS A FUNDAMENTAL RIGHT OF WHICH THE LEGISLATURE CANNOT
DEPRIVE THE CITIZEN, NOR CLOG ITS EXERCISE WITH CONDITIONS THAT ARE
REPUGNANT TO HIS OTHER FUNDAMENTAL RIGHTS.  SUCH A CONDITION I REGARD
THAT IMPOSED BY THE LAW IN QUESTION TO BE.  IT PREVENTS THE CITIZEN
FROM CO-OPERATING WITH OTHER CITIZENS OF HIS OWN CHOICE IN THE
PROMOTION OF HIS POLITICAL VIEWS....  THE WHOLE THING SEEMS TO ME
ABSURD.  NEITHER MEN'S MOUTHS NOR THEIR PURSES CAN BE CONSTITUTIONALLY
TIED UP IN THAT WAY." 

FN32  KAPLAN, POLITICAL NEUTRALITY OF THE CIVIL SERVICE, 1 PUB. PERS. 
REV.  10; WHITE, CIVIL SERVICE IN THE MODERN STATE (1930); MOSHER AND
KINGSLEY, PUBLIC PERSONNEL ADMINISTRATION (1936); WHITE, GOVERNMENT
CAREER SERVICE (1935); MERIAM, PUBLIC PERSONNEL PROBLEMS (1938). 

MILITARY PERSONNEL IS RESTRICTED IN MUCH THE SAME MANNER.  ARMY
REGULATIONS NO. 600-10, P. 5: "6.  POLITICAL ACTIVITIES OF PERSONS IN
MILITARY SERVICE.  - A. GENERAL.  - NO MEMBER OF THE ARMY, WHILE ON
ACTIVE DUTY, WILL USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE
PURPOSE OF INTERFERING WITH AN ELECTION OR AFFECTING THE COURSE OR
OUTCOME THEREOF.  SUCH PERSONS, WHILE ON ACTIVE DUTY, RETAIN THE RIGHT
TO VOTE, TO EXPRESS THEIR OPINIONS PRIVATELY AND INFORMALLY ON ALL
POLITICAL SUBJECTS AND CANDIDATES, AND TO BECOME CANDIDATES FOR PUBLIC
OFFICE AS PERMITTED IN THESE REGULATIONS.  THEY WILL NOT BE PERMITTED
TO PARTICIPATE IN ANY WAY IN POLITICAL MANAGEMENT OR POLITICAL
CAMPAIGNS."    AN INTERESTING DISCUSSION OF THE GENERAL SUBJECT OF
INTERFERENCE BY FEDERAL OFFICERS IN ELECTIONS WILL BE FOUND IN THE
APPENDIX TO THE CONGRESSIONAL GLOBE, DEC. 3, 1838-FEB.  19, 1839, PP.
157, 160 AND 409, 411. 

FN33  86 CONG. REC. 2338-2367, 2426-2442, 2696-2723, 2920-2963, 2969
2987, 9360-9380, 9426-9432, 9434-9463.    FN34  RICHARDSON, MESSAGES
AND PAPERS OF THE PRESIDENTS (1897), HARRISON, VOL. IV, P. 52; ID.,
HAYES, VOL. VII, PP. 450-51.  SEE NOTE 4, SUPRA. 

WHEN IN 1891 NEW BEDFORD, MASS., UNDER A RULE REMOVED A POLICEMAN FOR
POLITICAL ACTIVITY, AN OPINION BY MR. JUSTICE, THEN JUDGE, HOLMES
DISPOSED SUMMARILY OF MCAULIFFE'S CONTENTION THAT THE RULE INVADED HIS
RIGHT TO EXPRESS HIS POLITICAL OPINION WITH THE EPIGRAM, "THE
PETITIONER MAY HAVE A CONSTITUTIONAL RIGHT TO TALK POLITICS, BUT HE HAS
NO CONSTITUTIONAL RIGHT TO BE A POLICEMAN."  MCAULIFFE V. NEW BEDFORD,
155 MASS. 216, 220, 29 N.E. 517. 

FN35  SEVERAL STATES HAVE SIMILAR PROVISIONS.  ALA. CODE (1940), TIT.
12, SEC. 157; CONN. GEN. STAT. (SUPP. 1939), C. 105A SEC. 698E; OHIO
GEN. CODE (PAGE, 1937), SEC. 486-23; PA. STAT. ANN. (PURDON, 1942),
TIT. 71, SEC. 741.904; R.I. ACTS & RESOLVES, 1939, P. 118. 

FN36  UNITED STATES CIVIL SERVICE COMMISSION, POLITICAL ACTIVITY AND
POLITICAL ASSESSMENTS, FORM 1236, JANUARY 1944. 

FN37 "IN THE LIGHT OF THESE WIDE VARIATIONS IN DUTIES AND
RESPONSIBILITY FOR PUBLIC POLICY AND ITS FAIR ENFORCEMENT, A
RESTRICTION REASONABLY DESIGNED TO PRESERVE THE IMPARTIALITY OF A
COLLECTOR OF THE REVENUE, A U.S. MARSHAL, AN F.B.I. OR TREASURY AGENT
MAY BE UTTERLY ABSURD AND UNJUSTIFIED WHEN APPLIED TO A LENS GRINDER, A
STOCK CLERK, A MACHINIST, OR AN ELEVATOR OPERATOR.  IT IS THEREFORE
IMPOSSIBLE BOTH TO OBSERVE REASONABLE REGARD FOR CONSTITUTIONAL RIGHTS
AND TO ENACT SWEEPING PROHIBITIONS AS TO POLITICAL RIGHTS APPLICABLE TO
ALL FEDERAL EMPLOYEES WHATEVER THE NATURE OF THEIR DUTIES.  IN DEALING
WITH SO COMPLICATED AND VARIED A SUBJECT MATTER, A HATCHET CANNOT
READILY BE SUBSTITUTED FOR A SCALPEL." 

FN38  UNITED STATES CIVIL SERVICE COMMISSION, POLITICAL ACTIVITY AND
POLITICAL ASSESSMENTS, FORM 1236, SEPTEMBER 1939: 

"15.  COMMITTEES.  - SERVICE ON OR FOR ANY POLITICAL COMMITTEE OR
SIMILAR ORGANIZATION IS PROHIBITED.... 

    .         .         .         .         . 

"20.  ACTIVITY AT THE POLLS AND FOR CANDIDATES.  -  ... 

     .     .         .         .         . 

"IT IS THE DUTY OF AN EMPLOYEE TO AVOID ANY OFFENSIVE ACTIVITY AT
PRIMARY AND REGULAR ELECTIONS.  HE MUST REFRAIN FROM SOLICITING VOTES,
ASSISTING VOTERS TO MARK BALLOTS, HELPING TO GET OUT THE VOTERS ON
REGISTRATION AND ELECTION DAYS, ACTING AS THE ACCREDITED CHECKER,
WATCHER, OR CHALLENGER OF ANY PARTY OR FACTION, ASSISTING IN COUNTING
THE VOTE, OR ENGAGING IN ANY OTHER ACTIVITY AT THE POLLS EXCEPT THE
MARKING AND DEPOSITING OF HIS OWN BALLOT." 

FN39  UNITED STATES V. WURZBACH, 280 U.S. 396, 399. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE RUTLEDGE DISSENTS AS TO POOLE FOR THE REASONS STATED BY
MR. JUSTICE BLACK.  HE DOES NOT PASS UPON THE CONSTITUTIONAL QUESTIONS
PRESENTED BY THE OTHER APPELLANTS FOR THE REASON THAT HE FEELS THE
CONTROVERSY AS TO THEM IS NOT YET APPROPRIATE FOR THE DISCRETIONARY
EXERCISE OF DECLARATORY JUDGMENT JURISDICTION. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE TERMS OF THE ACT OF AUGUST 24, 1937, 50 STAT. 751, 752, 28 U.S.C.
SEC. 380A, IN THE LIGHT OF ITS HISTORY, HAVE CONVINCED ME THAT THIS
CASE SHOULD BE DISMISSED FOR WANT OF JURISDICTION. 

IN THAT ACT, CONGRESS PUT A LIMIT TO THE TIME WITHIN WHICH A CASE MAY
BE DOCKETED HERE AFTER AN APPEAL BELOW IS ALLOWED.  SUCH A LIMITATION
BY CONGRESS IS IN THE EXERCISE OF ITS POWER TO REGULATE THE APPELLATE
JURISDICTION OF THIS COURT.  IT IS NOT WITHIN OUR POWER TO ENLARGE A
LIMIT FIXED BY CONGRESS UNLESS CONGRESS ITSELF GAVE THE COURT SUCH
DISPENSING POWER. 

IN ALLOWING A DIRECT APPEAL TO THIS COURT FROM A DISTRICT COURT
"UNDER SUCH RULES AS MAY BE PRESCRIBED," CONGRESS DID NOT MEAN TO GIVE
THIS COURT POWER TO DEFEAT THE CONSIDERATIONS OF SPEED IN THE
DISPOSITION OF CONTROVERSIES INVOLVING THE CONSTITUTIONALITY OF FEDERAL
LEGISLATION WHICH LED TO THE SPECIFIC PROVISION THAT A CASE BE DOCKETED
"WITHIN SIXTY DAYS FROM THE TIME SUCH APPEAL IS ALLOWED."  NO RULE OF
THIS COURT COULD DISREGARD THE LIMITATIONS FOR PERFECTING AN APPEAL
MADE BY CONGRESS.  NOR DOES RULE 47, WHICH WAS THE RULE RESPONSIVE TO
THE ACT OF AUGUST 24, 1937, PURPORT TO DO SO.  IT MERELY REASSERTS THE
STATUTORY REQUIREMENT THAT IN A CASE LIKE THIS "THE RECORD SHALL BE
MADE UP AND THE CASE DOCKETED IN THIS COURT WITHIN SIXTY DAYS FROM THE
TIME THE APPEAL IS ALLOWED."  THE INTRODUCTORY PART OF RULE 47, WHEREBY
THE RULES OF THIS COURT REGULATING APPELLATE PROCEDURE IN OTHER CASES
ARE ADOPTED "AS FAR AS MAY BE," HAS AMPLE SCOPE FOR OPERATION WITHOUT
QUALIFYING THE NECESSITY FOR SPEEDY PERFECTION OF AN APPEAL IN CASES
INVOLVING CONSTITUTIONALITY, SO THAT THE VALIDITY OF ACTS OF CONGRESS
MAY NOT REMAIN IN DOUBT THROUGH PROTRACTED LITIGATION.  THIS WAS A DEEP
CONCERN OF CONGRESS AND ITS REASON FOR IMPOSING THE SIXTY-DAY
LIMITATION FOR PERFECTING APPEALS IN THIS CLASS OF CASES. 

BUT UNDER COMPULSION OF THE COURT'S ASSUMPTION OF JURISDICTION, I
REACH THE MERITS AND JOIN IN MR. JUSTICE REED'S OPINION. 

MR. JUSTICE BLACK, DISSENTING. 

THE SENTENCE IN SEC. 9 OF THE STATUTE, HERE UPHELD, MAKES IT UNLAWFUL
FOR ANY PERSON EMPLOYED IN THE EXECUTIVE BRANCH OF THE FEDERAL
GOVERNMENT, WITH MINOR NUMERICAL EXCEPTIONS,  FN1  TO "TAKE ANY ACTIVE
PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS."  THE
PUNISHMENT PROVIDED IS IMMEDIATE DISCHARGE AND A PERMANENT BAN AGAINST
REEMPLOYMENT IN THE SAME POSITION.  FN2  THE NUMBER OF FEDERAL
EMPLOYEES THUS BARRED FROM POLITICAL ACTION IS APPROXIMATELY THREE
MILLION.  SECTION 12 OF THE SAME ACT AFFECTS THE PARTICIPATION IN
POLITICAL CAMPAIGNS OF MANY THOUSANDS OF STATE EMPLOYEES.  FN3  NO ONE
OF ALL THESE MILLIONS OF CITIZENS CAN, WITHOUT VIOLATING THIS LAW,
"TAKE ANY ACTIVE PART" IN ANY CAMPAIGN FOR A CAUSE OR FOR A CANDIDATE
IF THE CAUSE OR CANDIDATE IS "SPECIFICALLY IDENTIFIED WITH ANY NATIONAL
OR STATE POLITICAL PARTY."  SINCE UNDER OUR COMMON POLITICAL PRACTICES
MOST CAUSES AND CANDIDATES ARE ESPOUSED BY POLITICAL PARTIES, THE
RESULT IS THAT, BECAUSE THEY ARE PAID OUT OF THE PUBLIC TREASURY, ALL
THESE CITIZENS WHO ENGAGE IN PUBLIC WORK CAN TAKE NO REALLY EFFECTIVE
PART IN CAMPAIGNS THAT MAY BRING ABOUT CHANGES IN THEIR LIVES, THEIR
FORTUNES, AND THEIR HAPPINESS.  FN4 

WE ARE NOT LEFT IN DOUBT AS TO HOW NUMEROUS AND VARIED ARE THE
"ACTIVITIES" PROHIBITED.  FOR SEC. 15 SWEEPINGLY DESCRIBES THEM AS "THE
SAME ACTIVITIES  ...  AS THE UNITED STATES CIVIL SERVICE COMMISSION HAS
HERETOFORE DETERMINED ARE AT THE TIME THIS SECTION TAKES EFFECT
PROHIBITED ON THE PART OF EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE OF
THE UNITED STATES  ..."  ALONG WITH THE VAGUE AND UNCERTAIN PRIOR
PROHIBITIONS OF THE COMMISSION, ARE THESE THINGS WHICH THE COMMISSION
HAD CLEARLY PROHIBITED:  SERVING AS AN ELECTION OFFICER; PUBLICLY
EXPRESSING POLITICAL VIEWS AT A PARTY CAUCUS OR POLITICAL GATHERING FOR
OR AGAINST ANY CANDIDATE OR CAUSE IDENTIFIED WITH A PARTY; SOLICITING
VOTES FOR A PARTY OR CANDIDATE; PARTICIPATING IN A POLITICAL PARADE;
WRITING FOR PUBLICATION OR PUBLISHING ANY LETTER OR ARTICLE, SIGNED OR
UNSIGNED, IN FAVOR OF OR AGAINST ANY POLITICAL PARTY, CANDIDATE, OR
FACTION; INITIATING, OR CANVASSING FOR SIGNATURES ON, COMMUNITY
PETITIONS OR PETITIONS TO CONGRESS. 

IN VIEW OF THESE PROHIBITIONS, IT IS LITTLE CONSOLATION TO EMPLOYEES
THAT THE ACT CONTRADICTORILY SAYS THAT THEY MAY "EXPRESS THEIR OPINIONS
ON ALL POLITICAL SUBJECTS AND CANDIDATES."  FOR THIS PERMISSION TO
"EXPRESS THEIR OPINIONS" IS, THE COMMISSION HAS RIGHTLY SAID, "SUBJECT
TO THE PROHIBITION THAT EMPLOYEES MAY NOT TAKE ANY ACTIVE PART IN  ...
POLITICAL CAMPAIGNS."  THE HOPELESS CONTRADICTION BETWEEN THIS
PRIVILEGE OF AN EMPLOYEE TO TALK AND THE PROHIBITION AGAINST HIS
TALKING STANDS OUT IN THE COMMISSION'S FURTHER WARNING TO ALL EMPLOYEES
THAT THEY CAN EXPRESS THEIR OPINIONS PUBLICLY, BUT "PUBLIC EXPRESSION
OF OPINION IN SUCH A WAY AS TO CONSTITUTE TAKING AN ACTIVE PART IN
POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS IS ACCORDINGLY
PROHIBITED."  THUS, WHATEVER OPINIONS EMPLOYEES MAY DARE TO EXPRESS,
EVEN SECRETLY, MUST BE AT THEIR PERIL.  THEY CANNOT KNOW WHAT
PARTICULAR EXPRESSIONS MAY BE REPORTED TO THE COMMISSION AND HELD BY IT
TO BE A SUFFICIENT POLITICAL ACTIVITY TO COST THEM THEIR JOBS.  THEIR
PERIL IS ALL THE GREATER BECAUSE OF ANOTHER WARNING BY THE COMMISSION
THAT "EMPLOYEES ARE  ... ACCOUNTABLE FOR POLITICAL ACTIVITY BY PERSONS
OTHER THAN THEMSELVES, INCLUDING WIVES OR HUSBANDS, IF, IN FACT, THE
EMPLOYEES ARE THUS ACCOMPLISHING BY COLLUSION AND INDIRECTION WHAT THEY
MAY NOT LAWFULLY DO DIRECTLY AND OPENLY."  THUS ARE THE FAMILIES OF
PUBLIC EMPLOYEES STRIPPED OF THEIR FREEDOM OF POLITICAL ACTION.  THE
RESULT IS THAT THE SUM OF POLITICAL PRIVILEGE LEFT TO GOVERNMENT AND
STATE EMPLOYEES, AND THEIR FAMILIES, TO TAKE PART IN POLITICAL
CAMPAIGNS SEEMS TO BE THIS: THEY MAY VOTE IN SILENCE; THEY MAY
CAREFULLY AND QUIETLY EXPRESS A POLITICAL VIEW AT THEIR PERIL; AND THEY
MAY BECOME "SPECTATORS" (THIS IS THE COMMISSION'S WORD) AT CAMPAIGN
GATHERINGS, THOUGH IT MAY BE HIGHLY DANGEROUS FOR THEM TO "SECOND A
MOTION" OR LET IT BE KNOWN THAT THEY AGREE OR DISAGREE WITH A SPEAKER. 

ALL OF THE PETITIONERS HERE CHALLENGE THE CONSTITUTIONAL VALIDITY OF
THAT SENTENCE OF SEC. 9 OF THE STATUTE WHICH PROHIBITS ALL FEDERAL
EMPLOYEES FROM TAKING "ANY ACTIVE PART IN POLITICAL MANAGEMENT OR IN
POLITICAL CAMPAIGNS" AND WHICH BY REFERENCE ONLY SWEEPS UNDER THIS
PROHIBITION ALL THEN-EXISTING CIVIL SERVICE REGULATIONS.  THE CHARGE IS
THAT THIS PROVISION, THUS SUPPLEMENTED BY THE REGULATIONS, VIOLATES THE
FIRST AMENDMENT BY PROHIBITING FREEDOM OF PRESS, SPEECH, AND ASSEMBLY;
THAT IT VIOLATES THE FIFTH AMENDMENT BECAUSE IT EFFECTS AN ARBITRARY
AND GROSS DISCRIMINATION BETWEEN GOVERNMENT EMPLOYEES COVERED AND THOSE
EXEMPTED; THAT IT ALSO VIOLATES THE FIFTH AMENDMENT BECAUSE IT IS SO
VAGUE AND INDEFINITE AS TO PROHIBIT LAWFUL ACTIVITIES AS WELL AS
ACTIVITIES WHICH ARE PROPERLY MADE UNLAWFUL BY OTHER PROVISIONS OF
LAW.  THUS, THESE ATTACKS OF POOLE AND ALL THE OTHER PETITIONERS ARE
IDENTICAL, NAMELY, THAT THE PROVISION IS UNCONSTITUTIONAL ON ITS FACE. 
THE COURT DECIDES THIS QUESTION AGAINST POOLE AFTER HOLDING THAT HIS
CASE PRESENTS A JUSTICIABLE CONTROVERSY.  I THINK POOLE'S CHALLENGE TO
THE CONSTITUTIONALITY OF THE PROVISION SHOULD BE SUSTAINED.  AND SINCE
I AGREE WITH MR. JUSTICE DOUGLAS THAT ALL THE PETITIONERS' COMPLAINTS
STATE A CASE OR CONTROVERSY, AND SHOW THREATS OF IMMINENT IRREPARABLE
DAMAGES, I THINK THAT THE CONTENTION THAT THE CHALLENGED PROVISION IS
UNCONSTITUTIONAL ON ITS FACE SHOULD BE SUSTAINED AS TO ALL OF THEM. 

HAD THIS MEASURE DEPRIVED FIVE MILLION FARMERS OR A MILLION
BUSINESSMEN OF ALL RIGHT TO PARTICIPATE IN ELECTIONS, BECAUSE CONGRESS
THOUGHT THAT FEDERAL FARM OR BUSINESS SUBSIDIES MIGHT PROMPT SOME OF
THEM TO EXERCISE, OR BE SUSCEPTIBLE TO, A CORRUPTING INFLUENCE ON
POLITICS OR GOVERNMENT, I WOULD NOT SUSTAIN SUCH AN ACT ON THE GROUND
THAT IT COULD BE INTERPRETED SO AS TO APPLY ONLY TO SOME OF THEM. 
CERTAINLY LAWS WHICH RESTRICT THE LIBERTIES GUARANTEED BY THE FIRST
AMENDMENT SHOULD BE NARROWLY DRAWN TO MEET THE EVIL AIMED AT AND TO
AFFECT ONLY THE MINIMUM NUMBER OF PEOPLE IMPERATIVELY NECESSARY TO
PREVENT A GRAVE AND IMMINENT DANGER TO THE PUBLIC.  FN5 FURTHERMORE,
WHAT FEDERAL EMPLOYEES CAN OR CANNOT DO, CONSISTENTLY WITH THE VARIOUS
CIVIL SERVICE REGULATIONS, RULES, WARNINGS, ETC., IS A MATTER OF SO
GREAT UNCERTAINTY THAT NO PERSON CAN EVEN MAKE AN INTELLIGENT GUESS. 
THIS WAS DEMONSTRATED BY THE GOVERNMENT'S BRIEFS AND ORAL ARGUMENTS IN
THIS CASE.  I WOULD HOLD THAT THE PROVISION HERE ATTACKED IS TOO BROAD,
AMBIGUOUS, AND UNCERTAIN IN ITS CONSEQUENCES TO BE MADE THE BASIS OF
REMOVING DESERVING EMPLOYEES FROM THEIR JOBS.  SEE DISSENTING OPINION,
WILLIAMS V. NORTH CAROLINA, 325 U.S. 226, 261, 276-278 AND CASES
COLLECTED, NOTE 16. 

THE RIGHT TO VOTE AND PRIVATELY TO EXPRESS AN OPINION ON POLITICAL
MATTERS, IMPORTANT THOUGH THEY BE, ARE BUT PARTS OF THE BROAD FREEDOMS
WHICH OUR CONSTITUTION HAS PROVIDED AS THE BULWARK OF OUR FREE
POLITICAL INSTITUTIONS.  POPULAR GOVERNMENT, TO BE EFFECTIVE, MUST
PERMIT AND ENCOURAGE MUCH WIDER POLITICAL ACTIVITY BY ALL THE PEOPLE. 
FN6  REAL POPULAR GOVERNMENT MEANS "THAT MEN MAY SPEAK AS THEY THINK ON
MATTERS VITAL TO THEM AND THAT FALSEHOODS MAY BE EXPOSED THROUGH THE
PROCESSES OF EDUCATION AND DISCUSSION  ...  THOSE WHO WON OUR
INDEPENDENCE HAD CONFIDENCE IN THE POWER OF FREE AND FEARLESS REASONING
AND COMMUNICATION OF IDEAS TO DISCOVER AND SPREAD POLITICAL AND
ECONOMIC TRUTH."  THORNHILL V. ALABAMA, 310 U.S. 88, 95.  LEGISLATION
WHICH MUZZLES SEVERAL MILLION CITIZENS THREATENS POPULAR GOVERNMENT,
NOT ONLY BECAUSE IT INJURES THE INDIVIDUALS MUZZLED, BUT ALSO BECAUSE
OF ITS HARMFUL EFFECT ON THE BODY POLITIC IN DEPRIVING IT OF THE
POLITICAL PARTICIPATION AND INTEREST OF SUCH A LARGE SEGMENT OF OUR
CITIZENS.  FORCING PUBLIC EMPLOYEES TO CONTRIBUTE MONEY AND INFLUENCE
CAN WELL BE PROSCRIBED IN THE INTEREST OF "CLEAN POLITICS" AND PUBLIC
ADMINISTRATION.  BUT I THINK THE CONSTITUTION PROHIBITS LEGISLATION
WHICH PREVENTS MILLIONS OF CITIZENS FROM CONTRIBUTING THEIR ARGUMENTS,
COMPLAINTS, AND SUGGESTIONS TO THE POLITICAL DEBATES WHICH ARE THE
ESSENCE OF OUR DEMOCRACY; PREVENTS THEM FROM ENGAGING IN ORGANIZATIONAL
ACTIVITY TO URGE OTHERS TO VOTE AND TAKE AN INTEREST IN POLITICAL
AFFAIRS; BARS THEM FROM PERFORMING THE INTERESTED CITIZEN'S DUTY OF
INSURING THAT HIS AND HIS FELLOW CITIZENS' VOTES ARE COUNTED.  SUCH
DRASTIC LIMITATIONS ON THE RIGHT OF ALL THE PEOPLE TO EXPRESS POLITICAL
OPINIONS AND TAKE POLITICAL ACTION WOULD BE INCONSISTENT WITH THE FIRST
AMENDMENT'S GUARANTY OF FREEDOM OF SPEECH, PRESS, ASSEMBLY, AND
PETITION.  AND IT WOULD VIOLATE, OR COME DANGEROUSLY CLOSE TO
VIOLATING, ARTICLE I AND THE SEVENTEENTH AMENDMENT OF THE CONSTITUTION,
WHICH PROTECT THE RIGHT OF THE PEOPLE TO VOTE FOR THEIR CONGRESSMEN AND
THEIR UNITED STATES SENATORS AND TO HAVE THEIR VOTES COUNTED.  SEE EX
PARTE YARBROUGH, 110 U.S. 651; UNITED STATES V. MOSLEY, 238 U.S. 383;
UNITED STATES V. CLASSIC, 313 U.S. 299, 314. 

THERE IS NOTHING ABOUT FEDERAL AND STATE EMPLOYEES AS A CLASS WHICH
JUSTIFIES DEPRIVING THEM OR SOCIETY OF THE BENEFITS OF THEIR
PARTICIPATION IN PUBLIC AFFAIRS.  THEY, LIKE OTHER CITIZENS, PAY TAXES
AND SERVE THEIR COUNTRY IN PEACE AND IN WAR.  THE TAXES THEY PAY AND
THE WARS IN WHICH THEY FIGHT ARE DETERMINED BY THE ELECTED SPOKESMEN OF
ALL THE PEOPLE.  THEY COME FROM THE SAME HOMES, COMMUNITIES, SCHOOLS,
CHURCHES, AND COLLEGES AS DO THE OTHER CITIZENS.  I THINK THE
CONSTITUTION GUARANTEES TO THEM THE SAME RIGHT THAT OTHER GROUPS OF
GOOD CITIZENS HAVE TO ENGAGE IN ACTIVITIES WHICH DECIDE WHO THEIR
ELECTED REPRESENTATIVES SHALL BE. 

NO STATUTE OF CONGRESS HAS EVER BEFORE ATTEMPTED SO DRASTICALLY TO
STIFLE THE SPOKEN AND WRITTEN POLITICAL UTTERANCES AND LAWFUL POLITICAL
ACTIVITIES OF FEDERAL AND STATE EMPLOYEES AS A CLASS.  THE NEAREST
APPROACH WAS THE CIVIL SERVICE ACT OF 1883, 22 STAT. 403-4, WHICH
AUTHORIZED THE PRESIDENT TO PROMULGATE RULES SO THAT, AMONG OTHER
THINGS, NO GOVERNMENT EMPLOYEE SHOULD "USE HIS OFFICIAL AUTHORITY OR
INFLUENCE TO COERCE THE POLITICAL ACTION OF ANY PERSON OR BODY."  IN
1907, THE CIVIL SERVICE COMMISSION, PURPORTING TO ACT UNDER AUTHORITY
OF THE 1883 ACT, DID, AS THE COURT POINTS OUT, PROHIBIT CIVIL SERVICE
EMPLOYEES FROM TAKING "AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN
POLITICAL CAMPAIGNS."  BUT THIS COURT HAS NOT APPROVED THE STATUTORY
POWER OF THE COMMISSION TO PROMULGATE SUCH A RULE, NOR HAS IT EVER
EXPRESSLY OR BY IMPLICATION APPROVED THE CONSTITUTIONAL VALIDITY OF ANY
SUCH SWEEPING ABRIDGEMENT OF THE RIGHT OF FREEDOM OF EXPRESSION. 
NEITHER EX PARTE CURTIS, 106 U.S. 371, NOR UNITED STATES V. WURZBACH,
280 U.S. 396, LEND THE SLIGHTEST SUPPORT TO THE PRESENT STATUTE.  BOTH
OF THESE CASES RELATED TO STATUTES WHICH DID NO MORE THAN LIMIT THE
RIGHT OF EMPLOYEES TO COLLECT MONEY FROM OTHER EMPLOYEES FOR POLITICAL
PURPOSES.  INDEED, THE CURTIS DECISION SEEMS IMPLICITLY TO HAVE RESTED
ON THE ASSUMPTION THAT MANY POLITICAL ACTIVITIES OF GOVERNMENT
EMPLOYEES, BEYOND MERELY VOTING AND SPEAKING SECRETLY, WOULD NOT, AND
COULD NOT UNDER THE CONSTITUTION, BE IMPAIRED BY THE LEGISLATION THERE
AT ISSUE.  EX PARTE CURTIS, SUPRA, AT 375. 

IT IS ARGUED THAT IT IS IN THE INTEREST OF CLEAN POLITICS TO SUPPRESS
POLITICAL ACTIVITIES OF FEDERAL AND STATE EMPLOYEES.  IT WOULD HARDLY
SEEM TO BE IMPERATIVE TO MUZZLE MILLIONS OF CITIZENS BECAUSE SOME OF
THEM, IF LEFT THEIR CONSTITUTIONAL FREEDOMS, MIGHT CORRUPT THE
POLITICAL PROCESS.  ALL POLITICAL CORRUPTION IS NOT TRACEABLE TO STATE
AND FEDERAL EMPLOYEES.  THEREFORE, IT IS POSSIBLE THAT OTHER GROUPS MAY
LATER BE COMPELLED TO SACRIFICE THEIR RIGHT TO PARTICIPATE IN POLITICAL
ACTIVITIES FOR THE PROTECTION OF THE PURITY OF THE GOVERNMENT OF WHICH
THEY ARE A PART. 

IT MAY BE TRUE, AS CONTENDED, THAT SOME HIGHER EMPLOYEES, UNLESS
RESTRAINED, MIGHT COERCE THEIR SUBORDINATES OR THAT GOVERNMENT
EMPLOYEES MIGHT USE THEIR OFFICIAL POSITION TO COERCE OTHER CITIZENS. 
BUT IS SUCH A POSSIBILITY OF COERCION OF A SUBORDINATE BY HIS EMPLOYER
LIMITED TO GOVERNMENTAL EMPLOYER-EMPLOYEE RELATIONSHIPS?  FN7  THE SAME
QUALITY OF ARGUMENT WOULD SUPPORT A LAW TO SUPPRESS THE POLITICAL
FREEDOM OF ALL EMPLOYEES OF PRIVATE EMPLOYERS, AND PARTICULARLY OF
EMPLOYERS WHO BORROW MONEY OR DRAW SUBSIDIES FROM THE GOVERNMENT.  NOR
DOES IT SEEM PLAUSIBLE THAT ALL OF THE MILLIONS OF PUBLIC EMPLOYEES
WHOSE RIGHTS TO FREE EXPRESSION ARE HERE STIFLED MIGHT, IF THEY
PARTICIPATE IN ELECTIONS, COERCE OTHER CITIZENS NOT EMPLOYED BY THE
GOVERNMENT OR THE STATES.  POOLE, ONE OF THE PETITIONERS HERE, IS A
ROLLER IN A UNITED STATES MINT.  HIS JOB IS ABOUT ON A PAR IN TERMS OF
POLITICAL INFLUENCE WITH THAT OF MOST OTHER STATE, FEDERAL, AND PRIVATE
BUSINESS EMPLOYEES.  SUCH JOBS GENERALLY DO NOT GIVE SUCH EMPLOYEES WHO
HOLD THEM SUFFICIENT AUTHORITY TO ENABLE THEM TO WIELD A DANGEROUS OR
COERCIVE INFLUENCE ON THE POLITICAL WORLD.  IF THE POSSIBILITY EXISTS
THAT SOME OTHER PUBLIC EMPLOYEES MAY, BY REASON OF THEIR MORE
INFLUENTIAL POSITIONS, COERCE OTHER PUBLIC EMPLOYEES OR OTHER CITIZENS,
LAWS CAN BE DRAWN TO PUNISH THE COERCERS.  FN8  IT HARDLY SEEMS
CONSISTENT WITH OUR SYSTEM OF EQUAL JUSTICE TO ALL TO SUPPRESS THE
POLITICAL AND SPEAKING FREEDOM OF MILLIONS OF GOOD CITIZENS BECAUSE A
FEW BAD CITIZENS MIGHT ENGAGE IN COERCION.  FN9 

IT MAY ALSO BE TRUE, AS CONTENDED, THAT IF PUBLIC EMPLOYEES ARE
PERMITTED TO EXERCISE A FULL FREEDOM TO EXPRESS THEIR VIEWS IN
POLITICAL CAMPAIGNS, SOME PUBLIC OFFICIALS WILL DISCHARGE SOME
EMPLOYEES AND GRANT PROMOTION TO OTHERS ON A POLITICAL RATHER THAN ON A
MERIT BASIS.  FOR THE SAME REASONS OTHER PUBLIC OFFICIALS, OCCUPYING
POSITIONS OF INFLUENCE, MAY USE THEIR INFLUENCE TO HAVE THEIR OWN
POLITICAL SUPPORTERS APPOINTED OR PROMOTED.  BUT HERE AGAIN, IF THE
PRACTICE OF MAKING DISCHARGES, PROMOTIONS OR RECOMMENDATIONS FOR
PROMOTIONS ON A POLITICAL BASIS IS SO GREAT AN EVIL AS TO REQUIRE
LEGISLATION, THE LAW COULD PUNISH THOSE PUBLIC OFFICIALS WHO ENGAGE IN
THE PRACTICE.  TO PUNISH MILLIONS OF EMPLOYEES AND TO DEPRIVE THE
NATION OF THEIR CONTRIBUTION TO PUBLIC AFFAIRS, IN ORDER TO REMOVE
TEMPTATION FROM A PROPORTIONATELY SMALL NUMBER OF PUBLIC OFFICIALS,
SEEMS AT THE LEAST TO BE A NOVEL METHOD OF SUPPRESSING WHAT IS THOUGHT
TO BE AN EVIL PRACTICE. 

OUR POLITICAL SYSTEM, DIFFERENT FROM MANY OTHERS, RESTS ON THE
FOUNDATION OF A BELIEF IN RULE BY THE PEOPLE - NOT SOME, BUT ALL THE
PEOPLE.  EDUCATION HAS BEEN FOSTERED BETTER TO FIT PEOPLE FOR SELF
EXPRESSION AND GOOD CITIZENSHIP.  IN A COUNTRY WHOSE PEOPLE ELECT THEIR
LEADERS AND DECIDE GREAT PUBLIC ISSUES, THE VOICE OF NONE SHOULD BE
SUPPRESSED - AT LEAST SUCH IS THE ASSUMPTION OF THE FIRST AMENDMENT. 
THAT AMENDMENT, UNLESS I MISUNDERSTAND ITS MEANING, INCLUDES A COMMAND
THAT THE GOVERNMENT MUST, IN ORDER TO PROMOTE ITS OWN INTEREST, LEAVE
THE PEOPLE AT LIBERTY TO SPEAK THEIR OWN THOUGHTS ABOUT GOVERNMENT,
ADVOCATE THEIR OWN FAVORED GOVERNMENTAL CAUSES, AND WORK FOR THEIR OWN
POLITICAL CANDIDATES AND PARTIES. 

THE SECTION OF THE ACT HERE HELD VALID REDUCES THE CONSTITUTIONALLY
PROTECTED LIBERTY OF SEVERAL MILLION CITIZENS TO LESS THAN A SHADOW OF
ITS SUBSTANCE.  IT RELEGATES MILLIONS OF FEDERAL, STATE, AND MUNICIPAL
EMPLOYEES TO THE ROLE OF MERE SPECTATORS OF EVENTS UPON WHICH HINGE THE
SAFETY AND WELFARE OF ALL THE PEOPLE, INCLUDING PUBLIC EMPLOYEES.  IT
REMOVES A SIZABLE PROPORTION OF OUR ELECTORATE FROM FULL PARTICIPATION
IN AFFAIRS DESTINED TO MOULD THE FORTUNES OF THE NATION.  IT MAKES
HONEST PARTICIPATION IN ESSENTIAL POLITICAL ACTIVITIES AN OFFENSE
PUNISHABLE BY PROSCRIPTION FROM PUBLIC EMPLOYMENT.  IT ENDOWS A
GOVERNMENTAL BOARD WITH THE AWESOME POWER TO CENSOR THE THOUGHTS,
EXPRESSIONS, AND ACTIVITIES OF LAW-ABIDING CITIZENS IN THE FIELD OF
FREE EXPRESSION, FROM WHICH NO PERSON SHOULD BE BARRED BY A GOVERNMENT
WHICH BOASTS THAT IT IS A GOVERNMENT OF, FOR, AND BY THE PEOPLE - ALL
THE PEOPLE.  LAUDABLE AS ITS PURPOSE MAY BE, IT SEEMS TO ME TO HACK AT
THE ROOTS OF A GOVERNMENT BY THE PEOPLE THEMSELVES; AND CONSEQUENTLY I
CANNOT AGREE TO SUSTAIN ITS VALIDITY. 

FN1  THOSE EXCEPTED ARE "A PART-TIME OFFICER OR PART-TIME EMPLOYEE
WITHOUT COMPENSATION OR WITH NOMINAL COMPENSATION SERVING IN CONNECTION
WITH THE EXISTING WAR EFFORT," COMMONLY DESIGNATED AS "DOLLAR-A-YEAR
MEN" AND "(1) THE PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES;
(2) PERSONS WHOSE COMPENSATION IS PAID FROM THE APPROPRIATION FOR THE
OFFICE OF THE PRESIDENT; (3) HEADS AND ASSISTANT HEADS OF EXECUTIVE
DEPARTMENTS; (4) OFFICERS WHO ARE APPOINTED BY THE PRESIDENT, BY AND
WITH THE ADVICE AND CONSENT OF THE SENATE, AND WHO DETERMINE POLICIES
TO BE PURSUED BY THE UNITED STATES IN ITS RELATIONS WITH FOREIGN POWERS
OR IN THE NATION-WIDE ADMINISTRATION OF FEDERAL LAWS."  SEC. 9A; 18
U.S.C. 61H (A), AS AMENDED. 

FN2  "ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE
IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND
THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS FOR
SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH
PERSON."  SEC. 9B; 18 U.S.C. 61H (B). 

FN3  ALL STATE EMPLOYEES WHO WORK FOR ANY STATE AGENCY FINANCED IN
WHOLE OR IN PART BY FEDERAL GRANTS OR LOANS ARE AFFECTED BY THE ACT. 

IN 1945 THE FEDERAL GOVERNMENT PAID $865,729,569.15 IN GRANTS IN AID
TO STATES, ANNUAL REPORT OF THE SECRETARY OF THE TREASURY ON THE STATE
OF THE FINANCES, FOR THE FISCAL YEAR ENDED JUNE 30, 1945(1946) 714, AND
$688,506,157.11 IN DIRECT PAYMENTS TO STATES FOR THE SOCIAL SECURITY
PROGRAM, PUBLIC ROADS AND EMERGENCY MATERNITY AND INFANT CARE.  ID. AT
718.  GRANTS TO AND EXPENDITURES WITHIN STATES, PROVIDING DIRECT
RELIEF, WORK RELIEF, AND OTHER AID SUCH AS THE AGRICULTURAL ADJUSTMENT
PROGRAM, NATIONAL HOUSING AGENCY ANNUAL CONTRIBUTIONS, ETC., TOTALED
$1,353,427,735.68.  ID. AT 721. 

IN JULY 1946 THE NUMBER OF PERSONS EMPLOYED BY STATE AND LOCAL
GOVERNMENTS TOTALED APPROXIMATELY 2,754,000 OF WHOM 641,000 WERE
EMPLOYED IN SCHOOLS AND 2,114,000 WERE NON-SCHOOL EMPLOYEES.  PUBLIC
EMPLOYMENT IN JULY, 1946, GOVERNMENT EMPLOYMENT, DEPT. OF COMMERCE,
BUREAU OF THE CENSUS, VOL. 7, NO. 3(1946) 1.  A BREAKDOWN OF COUNTY
EMPLOYEES IS A SAMPLE WHICH SUGGESTS THE PROPORTION STATE AND LOCAL
WHOSE SALARIES MAY BE PAID IN WHOLE OR IN PART BY FEDERAL FUNDS THUS
COMING UNDER THE PROVISIONS OF THIS ACT.  OF A TOTAL OF 310,000 NON
SCHOOL COUNTY EMPLOYEES IN THE ENTIRE COUNTRY, 77,000 WERE EMPLOYED IN
HIGHWAY DEPARTMENTS; 4,700 IN NATURAL RESOURCES; 12,600 IN HEALTH AND
SANITATION; 40,000 IN HOSPITALS; 22,000 IN PUBLIC WELFARE.  COUNTY
EMPLOYMENT IN 1944, GOVERNMENT EMPLOYMENT, OP. CIT. SUPRA, VOL. 5, NO.
2(1944) 7. 

FN4  THERE ARE MINOR EXCEPTIONS.  ONE CONCESSION ONLY IS GRANTED
THOSE FEDERAL EMPLOYEES WHO LIVE "IN THE IMMEDIATE VICINITY OF THE
NATIONAL CAPITAL IN THE STATES OF MARYLAND AND VIRGINIA OR IN
MUNICIPALITIES THE MAJORITY OF WHOSE VOTERS ARE EMPLOYED BY THE
GOVERNMENT OF THE UNITED STATES ..."  THE CIVIL SERVICE COMMISSION MAY
"PERMIT" THEM TO PARTICIPATE IN CAMPAIGNS INVOLVING THE "MUNICIPALITY
OR POLITICAL SUBDIVISION" IN WHICH THEY RESIDE "TO THE EXTENT THE
COMMISSION DEEMS TO BE IN (THEIR) DOMESTIC INTEREST  ..."  SECTION 16;
18 U.S.C. 61P.  A GENERAL EXCEPTION PERMITS PARTICIPATION (1) IN AN
"ELECTION AND THE PRECEDING CAMPAIGN IF NONE OF THE CANDIDATES IS TO BE
NOMINATED OR ELECTED  ...  AS REPRESENTING A (POLITICAL) PARTY  ...
(2) IN CONNECTION WITH ANY QUESTION WHICH IS NOT SPECIFICALLY
IDENTIFIED WITH ANY NATIONAL OR STATE POLITICAL PARTY.  FOR THE
PURPOSES OF THIS SECTION, QUESTIONS RELATING TO CONSTITUTIONAL
AMENDMENTS, REFERENDUMS, APPROVAL OF MUNICIPAL ORDINANCES, AND OTHERS
OF A SIMILAR CHARACTER, SHALL NOT BE DEEMED TO BE SPECIFICALLY
IDENTIFIED WITH ANY NATIONAL OR STATE POLITICAL PARTY."  SEC. 18, 18
U.S.C. SEC. 61R.  THE IMPORTANCE AND NUMBER OF POLITICAL ISSUES THUS
EXCEPTED, E.G. SUNDAY MOVIES, LOCAL SCHOOL BOND ISSUES, LOCATION OF
LOCAL PARKS, ELECTION OF LOCAL OFFICIALS IN WHOM NO POLITICAL PARTY IS
INTERESTED, ARE OBVIOUSLY VERY SMALL. 

FN5  THORNHILL V. ALABAMA, 310 U.S. 88; MARSH V. ALABAMA, 326 U.S.
501; BRIDGES V. CALIFORNIA, 314 U.S. 252, 260, 263. 

FN6  SOME STATES REQUIRE THAT EMPLOYERS PAY THEIR EMPLOYEES FOR THE
TIME THEY SPEND AWAY FROM WORK WHILE VOTING.  SEE PEOPLE V. FORD MOTOR
CO., 271 APP. DIV. 141, 63 N.Y.S.2D 697; NOTE, PAY WHILE VOTING, 47
COL. L. REV. 135(1947). 

FN7  MANY STATES HAVE LAWS PROTECTING NON-GOVERNMENT EMPLOYEES FROM
EMPLOYER INTERFERENCE WITH THEIR VOTING INDEPENDENCE.  SEE NOTE, PAY
WHILE VOTING, 47 COL. L. REV. 135, 136, NOTE 9(1947). 

FN8  SEE NOTE 7, SUPRA. 

FN9  THE ACT, IN FACT, LEAVES FREE THE HIGHER OFFICIALS WHOSE
POSITIONS GIVE THEM THE ACTUAL POWER TO COERCE SUBORDINATES AND OTHER
CITIZENS NOT EMPLOYED BY THE GOVERNMENT.  SEC. 9A; 18 U.S.C. 61H. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I DISAGREE WITH THE COURT ON TWO OF THE FOUR MATTERS DECIDED. 

FIRST.  THERE ARE TWELVE INDIVIDUAL APPELLANTS HERE ASKING FOR AN
ADJUDICATION OF THEIR RIGHTS.  FN1  THE COURT PASSES ON THE CLAIM OF
ONLY ONE OF THEM, POOLE.  IT DECLINES TO PASS ON THE CLAIMS OF THE
OTHER ELEVEN ON THE GROUND THAT THEY DO NOT PRESENT JUSTICIABLE CASES
OR CONTROVERSIES.  WITH THIS CONCLUSION I CANNOT AGREE. 

IT IS CLEAR THAT THE DECLARATORY JUDGMENT PROCEDURE IS AVAILABLE IN
THE FEDERAL COURTS ONLY IN CASES INVOLVING ACTUAL CONTROVERSIES AND MAY
NOT BE USED TO OBTAIN AN ADVISORY OPINION IN A CONTROVERSY NOT YET
ARISEN.  COFFMAN V. BREEZE CORPORATIONS, 323 U.S. 316, 324-325, AND
CASES CITED.  THE REQUIREMENT OF AN "ACTUAL CONTROVERSY," WHICH IS
WRITTEN INTO THE STATUTE (JUDICIAL CODE SEC. 274D, 28 U.S.C. SEC. 400)
AND HAS ITS ROOTS IN THE CONSTITUTION (ARTICLE III, SEC. 2), SEEMS TO
ME TO BE FULLY MET HERE.    WHAT THESE APPELLANTS PROPOSE TO DO IS
PLAIN ENOUGH.  IF THEY DO WHAT THEY PROPOSE TO DO, IT IS CLEAR THAT
THEY WILL BE DISCHARGED FROM THEIR POSITIONS.  THE ANALYSIS OF THE
SITUATION BY THE DISTRICT COURT SEEMS TO ME TO BE ACCURATE AND
CONCLUSIVE: 

"THE MERE EXISTENCE OF THE STATUTE, SAYING THAT THEY SHALL NOT ENGAGE
IN POLITICAL ACTIVITY, THE PENALTY IN THE STATUTE THAT THEY SHALL BE
DISMISSED IF THEY DO, AND THE WARNING ADDRESSED TO THEM BY THE CIVIL
SERVICE COMMISSION IN THEIR POSTERS CERTAINLY PREVENT THEM FROM
ENGAGING IN SUCH ACTIVITY, IF THE STATUTE IS CONSTITUTIONAL.  IF THE
STATUTE IS UNCONSTITUTIONAL, THEY ARE BEING PREVENTED FROM THINGS WHICH
THEY HAVE THE RIGHT TO DO.  IF THE STATUTE IS CONSTITUTIONAL, IT IS
MANDATORY THAT THEY BE DISMISSED FOR DOING SUCH THINGS....  THE
PROVISIONS OF CIVIL SERVICE RULE XV THAT IN CASE OF ANY VIOLATION OF
THE CIVIL SERVICE ACT OR RULES OR OF ANY EXECUTIVE ORDER OR ANY
REGULATION OF THE COMMISSION THE COMMISSION SHALL CERTIFY THE FACTS TO
THE PROPER APPOINTING OFFICER WITH SPECIFIC INSTRUCTIONS AS TO
DISCIPLINE OR DISMISSAL IS NOW CONTROLLED BY THE PROVISIONS OF THE
HATCH ACT THAT IN CASE OF VIOLATION OF SECTION 9(A) OF THAT ACT,
DISMISSAL IS MANDATORY."  56 F.SUPP.  621, 624. 

THEIR PROPOSED CONDUCT IS SUFFICIENTLY SPECIFIC TO SHOW PLAINLY THAT
IT WILL VIOLATE THE ACT.  THE POLICY OF THE COMMISSION AND THE MANDATE
OF THE ACT LEAVE NO LINGERING DOUBT AS TO THE CONSEQUENCES.  FN2 

ON A DISCHARGE THESE EMPLOYEES WOULD LOSE THEIR JOBS, THEIR
SENIORITY, AND OTHER CIVIL SERVICE BENEFITS.  THEY COULD, OF COURSE,
SUE IN THE COURT OF CLAIMS.  UNITED STATES V. LOVETT, 328 U.S. 303. 
BUT THE REMEDY THERE IS A MONEY JUDGMENT, NOT A RESTORATION TO THE
OFFICE FORMERLY HELD.  OF COURSE, THERE MIGHT BE OTHER REMEDIES
AVAILABLE IN THESE SITUATIONS TO DETERMINE THEIR RIGHTS TO THE OFFICES
FROM WHICH THEY ARE DISCHARGED.  SEE WHITE V. BERRY, 171 U.S. 366,
377.  BUT TO REQUIRE THESE EMPLOYEES FIRST TO SUFFER THE HARDSHIP OF A
DISCHARGE IS NOT ONLY TO MAKE THEM INCUR A PENALTY; IT MAKES
INADEQUATE, IF NOT WHOLLY ILLUSORY, ANY LEGAL REMEDY WHICH THEY MAY
HAVE.  FN3  MEN WHO MUST SACRIFICE THEIR MEANS OF LIVELIHOOD IN ORDER
TO TEST THEIR RIGHTS TO THEIR JOBS MUST EITHER PURSUE PROLONGED AND
EXPENSIVE LITIGATION AS UNEMPLOYED PERSONS OR PULL UP THEIR ROOTS,
CHANGE THEIR LIFE CAREERS, AND SEEK EMPLOYMENT IN OTHER FIELDS.  AT
LEAST TO THE AVERAGE PERSON IN THE LOWER INCOME GROUPS THE BURDEN OF
TAKING THAT COURSE IS IRREPARABLE INJURY, FN4  CF. EX PARTE YOUNG, 209
U.S. 123, 165, NO MATTER HOW EXACT THE REQUIRED SHOWING.  CF. WATSON V.
BUCK, 313 U.S. 387, 400. 

THE DECLARATORY JUDGMENT PROCEDURE MAY NOT, OF COURSE, BE USED AS A
SUBSTITUTE FOR OTHER EQUITABLE REMEDIES TO DEFEAT A LEGISLATIVE POLICY,
GREAT LAKES CO. V. HUFFMAN, 319 U.S. 293, 300-301, OR TO CIRCUMVENT THE
NECESSITY OF EXHAUSTING ADMINISTRATIVE REMEDIES.  ORDER OF CONDUCTORS
V. PENN.  R. CO., 323 U.S. 166; MACAULEY V. WATERMAN S.S. CORP., 327
U.S. 540.  BUT IT FILLS A NEED AND SERVES A HIGH FUNCTION PREVIOUSLY
"PERFORMED RATHER CLUMSILY BY OUR EQUITABLE PROCEEDINGS AND
INADEQUATELY BY THE LAW COURTS."  H.R. REP. NO. 1264, 73D CONG., 2D
SESS., P. 2.  FN5 

THE DECLARATORY JUDGMENT PROCEDURE IS DESIGNED "TO DECLARE RIGHTS AND
OTHER LEGAL RELATIONS OF ANY INTERESTED PARTY  ...  WHETHER OR NOT
FURTHER RELIEF IS OR COULD BE PRAYED."  JUDICIAL CODE SEC. 274D, 28
U.S.C. SEC. 400.  THE FACT THAT EQUITY WOULD NOT RESTRAIN A WRONGFUL
REMOVAL OF AN OFFICEHOLDER BUT WOULD LEAVE THE COMPLAINANT TO HIS LEGAL
REMEDIES, WHITE V. BERRY, SUPRA, IS, THEREFORE, IMMATERIAL.  A JUDGMENT
WHICH, WITHOUT MORE, ADJUDICATES THE STATUS OF A PERSON IS PERMISSIBLE
UNDER THE DECLARATORY JUDGMENT ACT.  PERKINS V. ELG, 307 U.S. 325, 349
350.  THE "DECLARATION OF A STATUS WAS PERHAPS THE EARLIEST EXERCISE OF
THIS PROCEDURE."  H.R. REP. NO. 1264, 73D CONG., 2D SESS., P. 2.  THE
RIGHT TO HOLD AN OFFICE OR PUBLIC POSITION AGAINST SUCH THREATS IS A
COMMON EXAMPLE OF ITS USE.  FN6  BORCHARD, DECLARATORY JUDGMENTS (2D
ED.), PP. 858 ET SEQ. DECLARATORY RELIEF IS THE SINGULAR REMEDY
AVAILABLE HERE TO PRESERVE THE STATUS QUO WHILE THE CONSTITUTIONAL
RIGHTS OF THESE APPELLANTS TO MAKE THESE UTTERANCES AND TO ENGAGE IN
THESE ACTIVITIES ARE DETERMINED.  THE THREAT AGAINST THEM IS REAL NOT
FANCIFUL, IMMEDIATE NOT REMOTE.  THE CASE IS THEREFORE AN ACTUAL NOT A
HYPOTHETICAL ONE.  FN7  AND THE PRESENT CASE SEEMS TO ME TO BE A GOOD
EXAMPLE OF A SITUATION WHERE UNCERTAINTY, PERIL, AND INSECURITY RESULT
FROM IMMINENT AND IMMEDIATE THREATS TO ASSERTED RIGHTS. 

SINCE THE COURT DOES NOT REACH THE CONSTITUTIONALITY OF THE CLAIMS OF
THESE ELEVEN INDIVIDUAL APPELLANTS, A DISCUSSION OF THEM WOULD SEEM TO
BE PREMATURE. 

SECOND.  POOLE IS NOT IN THE ADMINISTRATIVE CATEGORY OF CIVIL
SERVICE.  HE IS AN INDUSTRIAL WORKER - A ROLLER IN THE MINT, A SKILLED
LABORER OR ARTISAN WHOSE WORK OR FUNCTIONS IN NO WAY AFFECT THE POLICY
OF THE AGENCY NOR INVOLVE RELATIONSHIPS WITH THE PUBLIC.  THERE IS A
MARKED DIFFERENCE IN THE BRITISH TREATMENT OF ADMINISTRATIVE AND
INDUSTRIAL EMPLOYEES UNDER CIVIL SERVICE.  FN8  AND THE DIFFERENCE
BETWEEN THE TWO IS FOR ME RELEVANT TO THE PROBLEM WE HAVE HERE. 

THE CIVIL SERVICE SYSTEM HAS BEEN CALLED "THE ONE GREAT POLITICAL
INVENTION" OF NINETEENTH CENTURY DEMOCRACY.  FN9  THE INTRICACIES OF
MODERN GOVERNMENT, THE IMPORTANT AND MANIFOLD TASKS IT PERFORMS, THE
SKILL AND EXPERTISE REQUIRED, THE VAST DISCRETIONARY POWERS VESTED IN
THE VARIOUS AGENCIES, AND THE IMPACT OF THEIR WORK ON INDIVIDUAL
CLAIMANTS AS WELL AS ON THE GENERAL WELFARE HAVE MADE THE INTEGRITY,
DEVOTION, AND SKILL OF THE MEN AND WOMEN WHO COMPOSE THE SYSTEM A
MATTER OF DEEP CONCERN OF MANY THOUGHTFUL PEOPLE.  FN10  POLITICAL
FORTUNES OF PARTIES WILL EBB AND FLOW; TOP POLICY MEN IN
ADMINISTRATIONS WILL COME AND GO; NEW LAWS WILL BE PASSED AND OLD ONES
AMENDED OR REPEALED.  BUT THOSE WHO GIVE CONTINUITY TO ADMINISTRATION,
THOSE WHO CONTRIBUTE THE BASIC SKILL AND EFFICIENCY TO THE DAILY WORK
OF GOVERNMENT, AND THOSE ON WHOM THE NEW AS WELL AS THE OLD
ADMINISTRATION IS DEPENDENT FOR SMOOTH FUNCTIONING OF THE COMPLICATED
MACHINERY OF MODERN GOVERNMENT ARE THE CORE OF THE CIVIL SERVICE.  IF
THEY ARE BENEFICIARIES OF POLITICAL PATRONAGE RATHER THAN PROFESSIONAL
CAREERISTS, SERIOUS RESULTS MIGHT FOLLOW - OR SO CONGRESS COULD
REASONABLY BELIEVE.  PUBLIC CONFIDENCE IN THE OBJECTIVITY AND INTEGRITY
OF THE CIVIL SERVICE SYSTEM MIGHT BE SO WEAKENED AS TO JEOPARDIZE THE
EFFECTIVENESS OF ADMINISTRATIVE GOVERNMENT.  OR IT MIGHT FOUNDER ON THE
ROCKS OF INCOMPETENCY, IF EVERY CHANGE IN POLITICAL FORTUNES TURNED OUT
THE INCUMBENTS, BROKE THE CONTINUITY OF ADMINISTRATION, AND THUS
INTERFERED WITH THE DEVELOPMENT OF EXPERT MANAGEMENT AT THE TECHNICAL
LEVELS.  OR IF THE INCUMBENTS WERE POLITICAL ADVENTURERS OR PARTY
WORKERS, PARTISANSHIP MIGHT COLOR OR CORRUPT THE PROCESSES OF
ADMINISTRATION OF LAW WITH WHICH MOST OF THE ADMINISTRATIVE AGENCIES
ARE ENTRUSTED. 

THE PHILOSOPHY IS TO DEVELOP A CIVIL SERVICE WHICH CAN AND WILL SERVE
LOYALLY AND EQUALLY WELL ANY POLITICAL PARTY WHICH COMES INTO POWER. 
FN11 

THOSE CONSIDERATIONS MIGHT WELL APPLY TO THE ENTIRE GROUP OF CIVIL
SERVANTS IN THE ADMINISTRATIVE CATEGORY - WHETHER THEY ARE THOSE IN THE
SO-CALLED EXPERT CLASSIFICATION OR ARE CLERKS, STENOGRAPHERS AND THE
LIKE.  THEY ARE THE ONES WHO HAVE ACCESS TO THE FILES, WHO MEET THE
PUBLIC, WHO ARRANGE APPOINTMENTS, WHO PREPARE THE BASIC DATA ON WHICH
POLICY DECISIONS ARE MADE.  EACH MAY BE A TRIBUTARY, THOUGH PERHAPS A
SMALL ONE, TO THE MAIN STREAM WHICH WE CALL POLICY MAKING OR
ADMINISTRATIVE ACTION.  IF THE ELEMENT OF PARTISANSHIP ENTERS INTO THE
OFFICIAL ACTIVITIES OF ANY MEMBER OF THE GROUP, IT MAY HAVE ITS
REPERCUSSIONS OR EFFECT THROUGHOUT THE ADMINISTRATIVE PROCESS.  THUS IN
THAT TYPE OF CASE THERE WOULD BE MUCH TO SUPPORT THE VIEW OF THE COURT
THAT CONGRESS NEED NOT UNDERTAKE TO DRAW THE LINE TO INCLUDE ONLY THE
MORE IMPORTANT OFFICES BUT CAN TAKE THE PRECAUTION OF PROTECTING THE
WHOLE BY INSULATING EVEN THE LOWEST ECHELON FROM PARTISAN ACTIVITIES. 

SO, I THINK THAT IF THE ISSUES TENDERED BY POOLE WERE TENDERED BY AN
ADMINISTRATIVE EMPLOYEE, WE WOULD HAVE QUITE A DIFFERENT CASE.  FOR
POOLE CLAIMS THE RIGHT TO WORK AS A WARD EXECUTIVE COMMITTEEMAN, I.E.,
AS AN OFFICEHOLDER IN A POLITICAL PARTY. 

BUT POOLE, BEING AN INDUSTRIAL WORKER, IS AS REMOTE FROM CONTACT WITH
THE PUBLIC OR FROM POLICY MAKING OR FROM THE FUNCTIONING OF THE
ADMINISTRATIVE PROCESS AS A CHARWOMAN.  THE FACT THAT HE IS IN THE
CLASSIFIED CIVIL SERVICE IS NOT, I THINK, RELEVANT TO THE QUESTION OF
THE DEGREE TO WHICH HIS POLITICAL ACTIVITIES MAY BE CURTAILED.  HE IS
IN A POSITION NOT ESSENTIALLY DIFFERENT FROM ONE WHO WORKS IN THE
MACHINE SHOP OF A RAILROAD OR STEAMSHIP WHICH THE GOVERNMENT RUNS, OR
WHO ROLLS ALUMINUM IN A MANUFACTURING PLANT WHICH THE GOVERNMENT OWNS
AND OPERATES.  CAN ALL OF THOSE CATEGORIES OF INDUSTRIAL EMPLOYEES
CONSTITUTIONALLY BE INSULATED FROM AMERICAN POLITICAL LIFE?  IF AT SOME
FUTURE TIME IT SHOULD COME TO PASS IN THIS COUNTRY, AS IT HAS IN
ENGLAND, THAT A BROAD POLICY OF STATE OWNERSHIP OF BASIC INDUSTRIES IS
INAUGURATED, DOES THIS DECISION MEAN THAT ALL OF THE HUNDREDS OF
THOUSANDS OF INDUSTRIAL WORKERS AFFECTED COULD BE DEBARRED FROM THE
NORMAL POLITICAL ACTIVITY WHICH IS ONE OF OUR VALUED TRADITIONS? 

THE EVILS OF THE "SPOILS" SYSTEM DO NOT, OF COURSE, END WITH THE
ADMINISTRATIVE GROUP OF CIVIL SERVANTS.  HISTORY SHOWS THAT THE
POLITICAL REGIMENTATION OF GOVERNMENT INDUSTRIAL WORKERS PRODUCES ITS
OWN CROP OF ABUSES.  THOSE IN TOP POLICY POSTS OR OTHERS IN SUPERVISORY
POSITIONS MIGHT SEEK TO KNIT THE INDUSTRIAL WORKERS IN CIVIL SERVICE
INTO A POLITICAL MACHINE.  AS A WEAPON THEY MIGHT SEEK TO MAKE THE
ADVANCEMENT OF INDUSTRIAL WORKERS DEPENDENT ON POLITICAL LOYALTY, ON
FINANCIAL CONTRIBUTIONS, OR ON OTHER PARTISAN EFFORTS.  OR POLITICAL
ACTIVITIES OF THESE WORKERS MIGHT TAKE PLACE ON GOVERNMENT PREMISES, ON
GOVERNMENT TIME, OR OTHERWISE AT GOVERNMENT EXPENSE.  THESE ARE
SPECIFIC EVILS WHICH WOULD REQUIRE A SPECIFIC TREATMENT. 

THERE IS, HOWEVER, NO SHOWING OF ANY SUCH ABUSE HERE.  WHAT POOLE DID,
HE DID ON HIS OWN WITHOUT COMPULSION OR SUGGESTION OR INVITATION FROM
ANY ONE HIGHER UP.  NOR DOES IT APPEAR THAT WHAT HE DID WAS DONE ON
GOVERNMENT TIME OR ON GOVERNMENT PREMISES.  MOREOVER, AS MR. JUSTICE
BLACK POINTS OUT, LAWS CAN BE DRAWN TO PUNISH THOSE WHO USE SUCH
COERCION.  SEE EX PARTE CURTIS, 106 U.S. 371.  SUCH ACTIVITY IS MORE
THAN THE EXERCISE OF POLITICAL PREROGATIVES; IT IS THE USE OF OFFICIAL
POWER AS WELL, AND HENCE CAN BE RESTRAINED OR PUNISHED.  CF. BAKERY
DRIVERS LOCAL V. WOHL, 315 U.S. 769, 776-777; THOMAS V. COLLINS, 323
U.S. 516, 543-544. 

THE QUESTION IS WHETHER A PERMISSIBLE REMEDY IS COMPLETE OR PARTIAL
POLITICAL STERILIZATION OF THE INDUSTRIAL GROUP.  THERE IS, OF COURSE,
THE POSSIBILITY OF THE MOBILIZATION, WHETHER VOLUNTARY OR OTHERWISE, OF
MILLIONS OF EMPLOYEES OF THE FEDERAL GOVERNMENT AND FEDERALLY ASSISTED
STATE AGENCIES FOR THE PURPOSE OF MAINTAINING A PARTICULAR PARTY OR
GROUP IN POWER.  THE MARKED INCREASE IN THE NUMBER OF GOVERNMENT
EMPLOYEES IN RECENT YEARS HAS ACCENTUATED THE PROBLEM.  THE DIFFICULTY
LIES IN ATTEMPTING TO PRESERVE OUR DEMOCRATIC WAY OF LIFE BY MEASURES
WHICH DEPRIVE A LARGE SEGMENT OF THE POPULATION OF ALL POLITICAL RIGHTS
EXCEPT THE RIGHT TO VOTE.  ABSENT COERCION, IMPROPER USE OF GOVERNMENT
POSITION OR GOVERNMENT FUNDS, OR NEGLECT OR INEFFICIENCY IN THE
PERFORMANCE OF DUTY, FEDERAL EMPLOYEES HAVE THE SAME RIGHTS AS OTHER
CITIZENS UNDER THE CONSTITUTION.  THEY ARE NOT SECOND-CLASS CITIZENS. 
IF, IN THE EXERCISE OF THEIR RIGHTS, THEY FIND COMMON POLITICAL
INTERESTS AND JOIN WITH EACH OTHER OR OTHER GROUPS IN WHAT THEY
CONCEIVE TO BE THEIR INTERESTS OR THE INTERESTS OF THE NATION, THEY ARE
SIMPLY DOING WHAT ANY OTHER GROUP MIGHT DO.  IN OTHER SITUATIONS WHERE
THE BALANCE WAS BETWEEN CONSTITUTIONAL RIGHTS OF INDIVIDUALS AND A
COMMUNITY INTEREST WHICH SOUGHT TO QUALIFY THOSE RIGHTS, WE HAVE
INSISTED THAT THE STATUTE BE "NARROWLY DRAWN TO DEFINE AND PUNISH
SPECIFIC CONDUCT AS CONSTITUTING A CLEAR AND PRESENT DANGER TO A
SUBSTANTIAL INTEREST" OF GOVERNMENT.  CANTWELL V. CONNECTICUT, 310 U.S.
296, 311.  AND SEE MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 116;
THORNHILL V. ALABAMA, 310 U.S. 88, 104-105. 

THAT SEEMS TO ME THE PROPER COURSE TO FOLLOW HERE.  THE PROHIBITION
IN SEC. 9(A) OF THE HATCH ACT AGAINST GOVERNMENT EMPLOYEES TAKING AN
"ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS" APPLIES
WITHOUT DISCRIMINATION TO ALL EMPLOYEES WHETHER INDUSTRIAL OR
ADMINISTRATIVE.  THE SAME IS TRUE OF THE CIVIL SERVICE RULES.  SEE
RULES I, SEC. 1, XV, 5 C.F.R. CUM. SUPP., SECS. 1.1, 15.1.  BUT THE
SUPPOSED EVILS ARE BOTH DIFFERENT AND NARROWER IN CASE OF INDUSTRIAL
WORKERS THAN THEY ARE IN THE CASE OF THE ADMINISTRATIVE GROUP.  FN12
THE PUBLIC INTEREST IN THE POLITICAL ACTIVITY OF A MACHINIST OR
ELEVATOR OPERATOR OR CHARWOMAN IS A DISTINCT AND DIFFERENT PROBLEM. 
FN13  IN THOSE CASES THE PUBLIC CONCERN IS IN THE PRESERVATION OF AN
UNREGIMENTED INDUSTRIAL GROUP, IN A GROUP FREE FROM POLITICAL PRESSURES
OF SUPERIORS WHO USE THEIR OFFICIAL POWER FOR A PARTISAN PURPOSE.  THEN
OFFICIAL POWER IS MISUSED, PERVERTED.  THE GOVERNMENT IS CORRUPTED BY
MAKING ITS INDUSTRIAL WORKERS POLITICAL CAPTIVES, VICTIMS OF
BUREAUCRATIC POWER, AGENTS FOR PERPETUATING ONE PARTY IN POWER. 

OFFSET AGAINST THAT PUBLIC CONCERN ARE THE INTERESTS OF THE EMPLOYEES
IN THE EXERCISE OF CHERISHED CONSTITUTIONAL RIGHTS.  THE NATURE AND
IMPORTANCE OF THOSE RIGHTS HAVE BEEN FULLY EXPOUNDED IN MR. JUSTICE
BLACK'S OPINION.  IF THOSE RIGHTS ARE TO BE QUALIFIED BY THE LARGER
REQUIREMENTS OF MODERN DEMOCRATIC GOVERNMENT, THE RESTRICTIONS SHOULD
BE NARROWLY AND SELECTIVELY DRAWN TO DEFINE AND PUNISH THE SPECIFIC
CONDUCT WHICH CONSTITUTES A CLEAR AND PRESENT DANGER TO THE OPERATIONS
OF GOVERNMENT.  IT SEEMS PLAIN TO ME THAT THAT EVIL HAS ITS ROOTS IN
THE COERCIVE ACTIVITY OF THOSE IN THE HIERARCHY WHO HAVE THE POWER TO
REGIMENT THE INDUSTRIAL GROUP OR WHO UNDERTAKE TO DO SO.  TO SACRIFICE
THE POLITICAL RIGHTS OF THE INDUSTRIAL WORKERS GOES FAR BEYOND ANY
DEMONSTRATED OR DEMONSTRABLE NEED.  THOSE RIGHTS ARE TOO BASIC AND
FUNDAMENTAL IN OUR DEMOCRATIC POLITICAL SOCIETY TO BE SACRIFICED OR
QUALIFIED FOR ANYTHING SHORT OF A CLEAR AND PRESENT DANGER TO THE CIVIL
SERVICE SYSTEM.  NO SUCH SHOWING HAS BEEN MADE IN THE CASE OF THESE
INDUSTRIAL WORKERS  FN14  WHICH JUSTIFIES THEIR POLITICAL STERILIZATION
AS DISTINGUISHED FROM SELECTIVE MEASURES AIMED AT THE COERCIVE
PRACTICES ON WHICH THE SPOILS SYSTEM FEEDS. 

FN1  ELKIN, SENIOR ECONOMIC STATISTICIAN, RAILROAD RETIREMENT BOARD;
ABELSON, ASSOCIATE FINANCIAL ANALYST, SOCIAL SECURITY BOARD; PHILLIPS,
LABOR ECONOMIST, WAR SHIPPING ADMINISTRATION; MITCHELL, WAGE ANALYST,
NATIONAL WAR LABOR BOARD; FAGAN, AREA DIRECTOR, WAR MANPOWER
COMMISSION; WINEGAR, SENIOR OFFICER, BUREAU OF PRISONS; HINDIN,
PROCEDURAL ASSISTANT, FEDERAL SECURITY AGENCY; RIECK, STOCK CLERK,
VETERANS ADMINISTRATION; POOLE, ROLLER, UNITED STATES MINT; SHANE, LENS
GRINDER, FRANKFORD ARSENAL; WEBER, MACHINIST SPECIALIST, FRANKFORD
ARSENAL; TEMPEST, ELECTRIC WELDER, PHILADELPHIA NAVY YARD. 

FN2  THE CASE IS, THEREFORE, UNLIKE THOSE SITUATIONS WHERE THE COURT
REFUSED TO ENTERTAIN ACTIONS FOR DECLARATORY JUDGMENTS, THE STATE OF
FACTS BEING HYPOTHETICAL IN THE SENSE THAT THE CHALLENGE WAS TO
STATUTES WHICH HAD NOT AS YET BEEN CONSTRUED OR THEIR SPECIFIC
APPLICATION KNOWN.  SEE ELECTRIC BOND & S. CO. V. SECURITIES AND
EXCHANGE COMMISSION, 303 U.S. 419, 443; ALABAMA STATE FEDERATION OF
LABOR V. MCADORY, 325 U.S. 450. 

FN3  WHERE THE LEGAL REMEDY IS ADEQUATE, IT MAY BE THE MORE
APPROPRIATE ONE.  THUS IN COFFMAN V. BREEZE CORPORATIONS, SUPRA,
DECLARATORY RELIEF WAS DENIED A LICENSOR OF A PATENT WHO SUED HIS
LICENSEE FOR AN ADJUDICATION THAT THE ROYALTY ADJUSTMENT ACT WAS
UNCONSTITUTIONAL SINCE IT APPEARED THAT A SUIT TO RECOVER ROYALTIES WAS
AN ADEQUATE LEGAL REMEDY AND THAT THE CONSTITUTIONAL ISSUES COULD BE
LITIGATED THERE. 

FN4  IF THE PRAYER FOR DECLARATORY RELIEF BE CONSIDERED SEPARATELY
FROM THE PRAYER FOR AN INJUNCTION, AS IT MAY BE, ALLEGATIONS OF
IRREPARABLE INJURY THREATENED ARE NOT REQUIRED.  AETNA LIFE INS. CO. V.
HAWORTH, 300 U.S. 227, 241. 

FN5  AS STATED IN THE SENATE REPORT: 

"THE PROCEDURE HAS BEEN ESPECIALLY USEFUL IN AVOIDING THE NECESSITY,
NOW SO OFTEN PRESENT, OF HAVING TO ACT AT ONE'S PERIL OR TO ACT ON
ONE'S OWN INTERPRETATION OF HIS RIGHTS, OR ABANDON ONE'S RIGHTS BECAUSE
OF A FEAR OF INCURRING DAMAGES.  SO NOW IT IS OFTEN NECESSARY, IN THE
ABSENCE OF THE DECLARATORY JUDGMENT PROCEDURE, TO VIOLATE OR PURPORT TO
VIOLATE A STATUTE IN ORDER TO OBTAIN A JUDICIAL DETERMINATION OF ITS
MEANING OR VALIDITY  ...  SO NOW IT IS OFTEN NECESSARY TO BREAK A
CONTRACT OR A LEASE, OR ACT UPON ONE'S OWN INTERPRETATION OF HIS RIGHTS
WHEN DISPUTED, IN ORDER TO PRESENT TO THE COURT A JUSTIFIABLE
CONTROVERSY.  IN JURISDICTIONS HAVING THE DECLARATORY JUDGMENT
PROCEDURE, IT IS NOT NECESSARY TO BRING ABOUT SUCH SOCIAL AND ECONOMIC
WASTE AND DESTRUCTION IN ORDER TO OBTAIN A DETERMINATION OF ONE'S
RIGHTS  ...  THERE SEEMS LITTLE QUESTION THAT IN MANY SITUATIONS IN THE
CONDUCT OF BUSINESS SERIOUS DISPUTES OCCUR BETWEEN PARTIES, WHERE, IF
THERE WERE A POSSIBILITY OF OBTAINING A JUDICIAL DECLARATION OF RIGHTS
IN A FORMAL ACTION, MUCH ECONOMIC WASTE COULD BE AVOIDED AND SOCIAL
PEACE PROMOTED.  PERSONS NOW OFTEN HAVE TO ACT AT THEIR PERIL, A DANGER
WHICH COULD BE FREQUENTLY AVOIDED BY THE ABILITY TO SUE FOR A
DECLARATORY JUDGMENT AS TO THEIR RIGHTS OR DUTIES."  S. REP. NO. 1005,
73D CONG., 2D SESS., PP. 2-3.  AND SEE BORCHARD, DECLARATORY JUDGMENTS
(2D ED.)  P. 4. 

FN6  THE CASE IS THEREFORE UNLIKE ONE WHERE THE MOVING PARTY SHOWS NO
INVASION OF HIS LEGAL RIGHTS BUT ONLY POSSIBLE INJURY TO THE PUBLIC
(PERKINS V. LUKENS STEEL CO., 310 U.S. 113, 125) OR ONE WHERE NO
JUDICIAL REMEDY FOR THE ALLEGED WRONG HAS BEEN CREATED.  GENERAL
COMMITTEE V. MISSOURI-K.-T.R. CO., 320 U.S. 323. 

FN7  THE FOLLOWING ARE CASES IN WHICH THE COURT HAS ALLOWED ACTIONS
FOR DECLARATORY JUDGMENTS TO BE ENTERTAINED:  AETNA LIFE INS. CO. V.
HAWORTH, SUPRA, WHERE AN INSURED CLAIMED AND THE INSURANCE COMPANY
DENIED THAT HE HAD BECOME TOTALLY AND PERMANENTLY DISABLED AND HENCE
WAS RELIEVED OF THE OBLIGATION TO CONTINUE THE PAYMENT OF PREMIUMS;
CURRIN V. WALLACE, 306 U.S. 1, WHERE TOBACCO WAREHOUSEMEN AND
AUCTIONEERS CLAIMED THE TOBACCO INSPECTION ACT WAS UNCONSTITUTIONAL;
PERKINS V. ELG, SUPRA, WHERE ONE CLAIMING TO BE A CITIZEN WAS
THREATENED WITH DEPORTATION AS AN ALIEN AND HAD BEEN DECLINED A
PASSPORT ON THE SAME GROUND; MARYLAND CASUALTY CO. V. PACIFIC COAL &
OIL CO., 312 U.S. 270, WHERE A THIRD PARTY WAS SUING AN INSURED AND THE
INSURER SOUGHT A JUDGMENT THAT IT WAS NOT LIABLE TO DEFEND THE INSURED
NOR TO INDEMNIFY THE INSURED IF THE THIRD PARTY RECOVERED; ALTVATER V.
FREEMAN, 319 U.S. 359, WHERE ROYALTIES WERE BEING DEMANDED AND PAID
UNDER PROTEST AND BY REASON OF AN INJUNCTION; MERCOID CORP. V.
HONEYWELL CO., 320 U.S. 680, WHERE AN ALLEGED PATENT INFRINGER SOUGHT A
DECLARATION OF THE INVALIDITY OF THE PATENT; TENNESSEE COAL, I. & R.
CO. V. MUSCODA LOCAL, 321 U.S. 590, WHERE AN EMPLOYER SUED
REPRESENTATIVES OF ITS EMPLOYEES FOR AN ADJUDICATION OF WHETHER PORTAL
TO-PORTAL PAY WAS DUE UNDER THE FAIR LABOR STANDARDS ACT; HILLSBOROUGH
V. CROMWELL, 326 U.S. 620, WHERE A TAXPAYER SUED IN THE FEDERAL COURT
TO HAVE ASSESSMENTS DECLARED INVALID ON THE GROUND THAT THEY VIOLATED
THE FEDERAL CONSTITUTION, THE STATE REMEDY BEING INADEQUATE TO PROTECT
THE FEDERAL RIGHT; KATZINGER CO. V. CHICAGO METALLIC MFG. CO., 329 U.S.
394, WHERE A LICENSEE SOUGHT A DECLARATION THAT HE OWED NO ROYALTIES
BECAUSE OF THE INVALIDITY OF THE PATENT; ORDER OF RAILWAY CONDUCTORS V.
SWAN, 329 U.S. 520, WHERE IT WAS SOUGHT TO DETERMINE WHICH DIVISION OF
THE NATIONAL RAILROAD ADJUSTMENT BOARD HAD JURISDICTION OVER RAILROAD
YARDMASTERS.  CF. RAILWAY MAIL ASSN. V. CORSI, 326 U.S. 88, WHERE A
LABOR MEMBERSHIP CORPORATION, WHICH DID NOT ADMIT NEGROES AND WAS
THREATENED WITH ENFORCEMENT OF A STATE STATUTE DECLARING THAT PRACTICE
OF LABOR ORGANIZATIONS UNLAWFUL, SUED IN A STATE COURT FOR AN
ADJUDICATION THAT THE STATUTE COULD NOT CONSTITUTIONALLY BE APPLIED TO
IT. 

FN8  REPORT, COMMITTEE ON PARLIAMENTARY, ETC., CANDIDATURE OF CROWN
SERVANTS (1925), PP. 12, 13. 

FN9  WALLAS, HUMAN NATURE IN POLITICS (2D ED.), P. 263. 

FN10  FISH, THE CIVIL SERVICE AND THE PATRONAGE (1905); MERIAM,
PUBLIC PERSONNEL PROBLEMS (1938), CH. XI; MOSHER & KINGSLEY, PUBLIC
PERSONNEL ADMINISTRATION (1941), CH. XVIII; KINGSLEY, REPRESENTATIVE
BUREAUCRACY (1944), CH. X; MORSTEIN MARX, PUBLIC MANAGEMENT IN THE NEW
DEMOCRACY (1940), CH. XIV; FIELD, CIVIL SERVICE LAW (1939), P. 196;
DAWSON, THE PRINCIPLE OF OFFICIAL INDEPENDENCE (1922), PP. 90 ET SEQ.;
KAPLAN, POLITICAL NEUTRALITY OF THE CIVIL SERVICE, 1 PUBLIC PERSONNEL
REV. 10; CHEN, THE DOCTRINE OF CIVIL SERVICE NEUTRALITY IN PARTY
CONFLICTS IN THE UNITED STATES AND GREAT BRITAIN (1937). 

FN11  SEE CHEN, OP. CIT. SUPRA NOTE 10, CH. I; REPORT OF PRESIDENT'S
COMMITTEE ON CIVIL SERVICE IMPROVEMENT, H. DOC. NO. 118, 77TH CONG.,
1ST SESS., CH. III. 

FN12  SEE MORSTEIN MARX, OP. CIT., SUPRA, NOTE 10, PP. 205-206;
REPORT OF THE COMMITTEE ON PARLIAMENTARY, ETC., CANDIDATURE OF CROWN
SERVANTS, SUPRA, NOTE 8, P. 32; FINER, THE BRITISH CIVIL SERVICE
(1937), PP. 203-204. 

FN13  AS STATED IN MORSTEIN MARX, OP. CIT., SUPRA, NOTE 10, PP. 205
206: 

"THE POLITICAL NEUTRALITY OF A POSTAL CLERK, OF A CONDUCTOR ON THE
CITY-OWNED SUBWAY SYSTEM IN NEW YORK, OF A TECHNICIAN IN THE CHICAGO
SANITARY DISTRICT, OR OF AN ARTISAN IN THE LABOR CLASS, DOES NOT HAVE
THE SAME SIGNIFICANCE AS THE POLITICAL NEUTRALITY OF THE PROMINENT
OF AN ASSISTANT TO A COMMISSIONER IN A NEW YORK CITY DEPARTMENT.  NO
DISCUSSION OF THE PROBLEM WHICH IGNORES THE DIFFERENCES BETWEEN
CATEGORIES OF EMPLOYEES IS ANYTHING BUT AN ACADEMIC CONSIDERATION OF
THE PROBLEM.  TOP OFFICIALDOM HAS SUCH MARKED OPPORTUNITIES OF SHAPING
POLICY THAT ITS POLITICAL BEHAVIOR MUST BE SO NEUTRAL AS TO RAISE NO
QUESTION OF A DIVERGENCE IN POINT OF VIEW BETWEEN IT AND THE EXECUTIVE
OFFICERS OF GOVERNMENT.  IT IS QUITE PROPER, THEREFORE, TO REQUIRE THE
MOST IMPECCABLE POLITICAL NEUTRALITY FROM SUCH OFFICIALS.  BUT THE
AVERAGE OR TYPICAL CIVIL SERVANT HAS NO MORE OPPORTUNITY IN THE SPHERE
OF POLICY MAKING THAN DOES THE AVERAGE CITIZEN.  HE IS ENTRUSTED WITH A
FUNCTION MINISTERIAL IN NATURE, A ROUTINE TASK ALMOST WHOLLY UNAFFECTED
BY HIS POLITICAL POINT OF VIEW.  THIS PRINCIPLE IS RECOGNIZED IN THE
ENGLISH RULE THAT INDUSTRIAL WORKERS IN GOVERNMENT EMPLOYMENT MAY STAND
FOR ELECTION, A PRIVILEGE DENIED ADMINISTRATIVE EMPLOYEES." 

FN14  WHETHER THE ACT, BEING UNCONSTITUTIONAL AS APPLIED TO POOLE,
COULD BE SEPARABLY APPLIED TO CIVIL SERVICE EMPLOYEES IN OTHER
CATEGORIES IS A QUESTION I DO NOT REACH. 
..END :












OKLAHOMA V. CIVIL SERVICE COMM'N, 330 U.S. 127 


NO. 84.  ARGUED OCTOBER 17, 18, 1946.  - DECIDED FEBRUARY 10, 1947.  -
153 F.2D 280, AFFIRMED. 


A MEMBER OF THE STATE HIGHWAY COMMISSION OF OKLAHOMA, WHOSE PRINCIPAL
EMPLOYMENT WAS IN CONNECTION WITH AN ACTIVITY FINANCED IN PART BY LOANS
AND GRANTS FROM A FEDERAL AGENCY, SERVED AT THE SAME TIME AS CHAIRMAN
OF THE DEMOCRATIC STATE CENTRAL COMMITTEE.  DURING HIS SERVICE ON THE
HIGHWAY COMMISSION, THERE WAS NO GENERAL ELECTION IN THE STATE; BUT HE
ADVISED WITH THE GOVERNOR CONCERNING A DINNER SPONSORED BY HIS
COMMITTEE TO RAISE FUNDS FOR POLITICAL PURPOSES, CALLED THE MEETING TO
ORDER, AND INTRODUCED THE TOASTMASTER.  PURSUANT TO SEC. 12 OF THE
HATCH ACT, 18 U.S.C. SEC. 61L, THE UNITED STATES CIVIL SERVICE
COMMISSION DETERMINED THAT THESE ACTIVITIES CONSTITUTED TAKING AN
"ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS" AND
THAT THIS WARRANTED HIS REMOVAL FROM THE OFFICE OF HIGHWAY
COMMISSIONER.  IT SO NOTIFIED HIM AND THE STATE.  PURSUANT TO SEC.
12(C) OF THE HATCH ACT, THE STATE INSTITUTED PROCEEDINGS IN A FEDERAL
DISTRICT COURT TO REVIEW THIS DETERMINATION.  HELD: 

1.  IN THIS PROCEEDING, THE STATE MAY PROPERLY CHALLENGE THE
CONSTITUTIONALITY OF SEC. 12 OF THE HATCH ACT.  PP. 134-142. 

(A)  SINCE SEC. 12(C) AUTHORIZES THE REVIEWING COURT TO DECIDE
WHETHER ANY ORDER OR DETERMINATION MADE UNDER SEC. 12(B) IS "IN
ACCORDANCE WITH LAW," THE STATE CAN PROPERLY CHALLENGE, AND THE COURT
IS AUTHORIZED TO CONSIDER AND DETERMINE, THE CONSTITUTIONALITY OF THE
LAW UPON WHICH THE ORDER UNDER REVIEW IS PREDICATED.  MASSACHUSETTS V.
MELLON, 262 U.S. 447; PERKINS V. LUKENS STEEL CO., 310 U.S. 113;
ALABAMA POWER CO. V. ICKES, 302 U.S. 464, DIFFERENTIATED.  PP. 135
139. 

(B)  IF THE CONTENTION THAT THE STATE HAS NO STANDING TO CHALLENGE
THE CONSTITUTIONALITY OF THE ACT BE TREATED AS AN OBJECTION TO ITS
CAPACITY TO BRING THE SUIT, IT WAS WAIVED BY FAILURE TO OBJECT IN THE
TRIAL COURT.  P. 134. 

(C)  IF IT BE TREATED AS MEANING THAT NO JUSTICIABLE CONTROVERSY
EXISTS AS TO THE CONSTITUTIONALITY OF SEC. 12, IT IS TIMELY ALTHOUGH
FIRST MADE IN THIS COURT.  P. 134. 

(D)  UNDER SEC. 12(C), EITHER THE STATE EMPLOYEE OR THE STATE MAY BE
THE PARTY "AGGRIEVED" AND MAY MAINTAIN THE ACTION FOR JUDICIAL REVIEW. 
P. 137. 

(E)  SINCE FAILURE TO REMOVE THE STATE HIGHWAY COMMISSIONER FROM
OFFICE WOULD RESULT UNDER SEC. 12(B) IN INTERFERENCE WITH PAYMENT OF
THE FULL ALLOTMENT OF FEDERAL HIGHWAY FUNDS TO THE STATE, THE STATUTORY
PROCEEDING TO REVIEW THE ORDER FINDING THAT HIS VIOLATION OF THE HATCH
ACT WARRANTED HIS REMOVAL FROM OFFICE WAS A CASE OR CONTROVERSY BETWEEN
THE STATE AND THE CIVIL SERVICE COMMISSION.  P. 137. 

(F)  THE RULE THAT ONE MAY NOT IN THE SAME PROCEEDING BOTH RELY UPON
AND ASSAIL A STATUTE IS NOT APPLICABLE TO THIS CASE.  P. 139. 

(G)  LACK OF EXTENDED DISCUSSION OF THE SCOPE OF JUDICIAL REVIEW
DURING THE LEGISLATIVE DEBATES ON THE ACT DOES NOT BY IMPLICATION DENY
TO A LITIGANT THE RIGHT TO CHALLENGE THE CONSTITUTIONALITY OF THE ACT. 
PP. 140-142. 

2.  SECTION 12 OF THE HATCH ACT IS NOT UNCONSTITUTIONAL BECAUSE OF
ITS INTERFERENCE WITH THE EMPLOYEE'S FREEDOM OF EXPRESSION IN POLITICAL
MATTERS.  UNITED PUBLIC WORKERS V. MITCHELL, ANTE, P. 75.  P. 142. 

3.  IT DOES NOT INVADE THE SOVEREIGNTY OF A STATE IN SUCH A WAY AS TO
VIOLATE THE TENTH AMENDMENT.  PP. 142-144. 

(A)  WHILE THE UNITED STATES IS NOT CONCERNED WITH, AND HAS NO POWER
TO REGULATE, POLITICAL ACTIVITIES AS SUCH OF STATE OFFICIALS, IT DOES
HAVE POWER TO FIX THE TERMS UPON WHICH ITS MONEY ALLOTMENTS TO STATES
SHALL BE DISBURSED.  P. 143. 

(B)  THE TENTH AMENDMENT DOES NOT FORBID THE EXERCISE OF THIS POWER
IN THE WAY THAT CONGRESS HAS PROCEEDED IN THIS CASE.  P. 143. 

4.  THE ACTIONS OF THE HIGHWAY COMMISSIONER CONSTITUTED TAKING AN
"ACTIVE PART IN POLITICAL MANAGEMENT" WITHIN THE MEANING AND PURPOSE OF
SEC. 12(A).  PP. 142, 144, 146. 

5.  THE CIVIL SERVICE COMMISSION'S DETERMINATION THAT HIS ACTS
CONSTITUTE SUCH A VIOLATION OF SEC. 12(A) AS TO WARRANT HIS REMOVAL
FROM OFFICE WAS IN ACCORDANCE WITH LAW AND WAS NOT ARBITRARY,
UNREASONABLE OR AN ABUSE OF DISCRETION.  PP. 144-146. 

OKLAHOMA V. UNITED STATES CIVIL SERVICE COMMISSION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

THE STATE OF OKLAHOMA INSTITUTED PROCEEDINGS UNDER SEC. 12(C) OF THE
HATCH ACT, 18 U.S.C. SEC. 61L (C), TO REVIEW AN ORDER OF THE UNITED
STATES CIVIL SERVICE COMMISSION DETERMINING THAT A STATE HIGHWAY
COMMISSIONER HAD ENGAGED IN POLITICAL ACTIVITIES WHICH WARRANTED HIS
REMOVAL FROM OFFICE UNDER THAT ACT.  THE DISTRICT COURT UPHELD THE
ACTION OF THE CIVIL SERVICE COMMISSION.  61 F.SUPP.  355.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  153 F.2D 280.  THIS COURT GRANTED
CERTIORARI.  328 U.S. 831.  AFFIRMED, P. 146. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING BRINGS TO THIS COURT* ANOTHER PHASE OF THE HATCH
ACT.  THE PETITIONER, THE STATE OF OKLAHOMA, OBJECTS TO THE ENFORCEMENT
BY THE UNITED STATES CIVIL SERVICE COMMISSION OF SEC. 12(A) OF THE
ACT.  FN1 

*SEE UNITED PUBLIC WORKERS V. MITCHELL, DECIDED TODAY, ANTE, P. 75. 

FRANCE PARIS HAS BEEN A MEMBER OF THE STATE HIGHWAY COMMISSION OF
OKLAHOMA SINCE JANUARY 14, 1943.  HE WAS ELECTED CHAIRMAN OF THE
DEMOCRATIC STATE CENTRAL COMMITTEE FOR OKLAHOMA FOR HIS THIRD TERM IN
FEBRUARY 1942 AND HE OCCUPIED SUCH POSITION CONTINUOUSLY UNTIL OCTOBER
18, 1943, WHEN HE RESIGNED.  ON OCTOBER 12, 1943, THE CIVIL SERVICE
COMMISSION ISSUED ITS LETTER OF CHARGES IN THE MATTER OF FRANCE PARIS
AND THE STATE OF OKLAHOMA, IN WHICH IT NOTIFIED MR. PARIS AND OKLAHOMA
THAT INFORMATION WHICH THE CIVIL SERVICE COMMISSION HAD RECEIVED
WARRANTED AN INVESTIGATION INTO AN ALLEGED IMPROPER POLITICAL ACTIVITY
ON THE PART OF FRANCE PARIS UNDER THE PROVISIONS OF SEC. 12 OF THE
HATCH ACT.  THE CHARGE WAS THAT SINCE JANUARY 14, 1943, MR. PARIS HAD
BEEN AN OFFICER OF OKLAHOMA WHOSE PRINCIPAL EMPLOYMENT WAS AND IS IN
CONNECTION WITH AN ACTIVITY FINANCED IN WHOLE OR IN PART BY LOANS AND
GRANTS FROM A FEDERAL AGENCY OF THE UNITED STATES AND THAT DURING SUCH
TIME MR. PARIS ALSO HELD A POLITICAL PARTY OFFICE, TO WIT, THE
CHAIRMANSHIP OF THE STATE CENTRAL COMMITTEE ABOVE REFERRED TO.  IT
LATER DEVELOPED THAT NO GENERAL ELECTION OCCURRED IN OKLAHOMA IN 1943. 
THE STATE DEMOCRATIC HEADQUARTERS HAD BEEN CLOSED ON JANUARY 4, 1943,
BY MR. PARIS AND WERE LATER REOPENED DURING THE YEAR UNDER THE DIRECT
CHARGE OF THE VICE-CHAIRMAN OF THAT COMMITTEE, WE ASSUME PRIOR TO MR.
PARIS' RESIGNATION ON OCTOBER 18, 1943.  ON JUNE 14 THE COMMITTEE
SPONSORED A "VICTORY DINNER" IN OKLAHOMA CITY.  THE TRIAL COURT FOUND
AS FOLLOWS: 

"THIS DINNER WAS DESIGNED TO PROVIDE THE NATIONAL DEMOCRATIC
COMMITTEE AND THE STATE DEMOCRATIC COMMITTEE WITH FUNDS TO DISCHARGE A
DEFICIT INCURRED BY THEIR POLITICAL ACTIVITIES AND TO PROVIDE FUNDS FOR
CONTEMPLATED FUTURE ACTIVITIES.  IT ALSO PROMOTED THE SALE OF WAR BONDS
AND DID RESULT IN THE SALE OF APPROXIMATELY $14,500,000.00 IN WAR
BONDS.  THE DINNER NETTED THE DEMOCRATIC PARTY, WHICH WAS CONCEDED TO
BE A POLITICAL PARTY, APPROXIMATELY $30,000.00.  THE DINNER WAS STAGED
UNDER THE GENERAL SUPERVISION OF THE GOVERNOR OF THE STATE AND THE
DETAILS WERE HANDLED BY A COMMITTEE APPOINTED BY THE GOVERNOR.  W. G.
JOHNSTON WAS CHAIRMAN OF THIS COMMITTEE.  FRANCE PARIS WAS AN EX
OFFICIO MEMBER OF THE COMMITTEE AND HE ADVISED WITH THE GOVERNOR
CONCERNING THE DINNER AND CALLED THE MEETING TO ORDER AND INTRODUCED
THE TOASTMASTER, BUT HE WAS NOT ACTIVE IN PLANNING OR ARRANGING THE
DINNER."  THE CIVIL SERVICE COMMISSION DETERMINED THAT THESE FACTS
CONSTITUTED TAKING AN ACTIVE PART IN POLITICAL MANAGEMENT AND IN
POLITICAL CAMPAIGNS.  IT CONSIDERED THAT THE VIOLATION WARRANTED MR.
PARIS' REMOVAL FROM THE OFFICE OF HIGHWAY COMMISSIONER OF OKLAHOMA.  IT
ORDERED THAT NOTICE OF THE AFORESAID DETERMINATIONS BE GIVEN PURSUANT
TO SEC. 12(B) OF THE HATCH ACT.  THIS ORDER FORESHADOWED, IF MR. PARIS
WAS NOT REMOVED, A FURTHER ORDER BY THE COMMISSION UNDER SEC. 12(B) TO
THE APPROPRIATE FEDERAL AGENCY THAT CERTAIN HIGHWAY GRANTS TO OKLAHOMA
SHOULD BE WITHHELD "IN AN AMOUNT EQUAL TO TWO YEARS COMPENSATION" OF
MR. PARIS. 

PURSUANT TO SEC. 12(C) THE STATE OF OKLAHOMA, AFTER HAVING RECEIVED
NOTICE OF THE CIVIL SERVICE COMMISSION'S DETERMINATION, INSTITUTED
THESE PROCEEDINGS FOR THE REVIEW OF THE ORDER IN THE PROPER DISTRICT
COURT OF THE UNITED STATES.  THAT COURT UPHELD THE ACTION OF THE CIVIL
SERVICE COMMISSION, 61 F.SUPP.  355, AND THIS ACTION WAS AFFIRMED BY
THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.  STATE OF OKLAHOMA
V. UNITED STATES CIVIL SERVICE COMMISSION, 153 F.2D 280.  CERTIORARI
WAS SOUGHT AND ALLOWED BECAUSE OF THE IMPORTANCE OF THE ISSUES INVOLVED
IN THE ADMINISTRATION OF JUSTICE, 328 U.S. 831, UNDER SEC. 12(C), 53
STAT. 1147, AS AMENDED, 54 STAT. 767, AND SEC. 240A OF THE JUDICIAL
CODE. 

THE STATE CONTENDS THAT THE JUDGMENTS BELOW ARE INVALID FOR THE
FOLLOWING REASONS: 

"(1)  THE HATCH POLITICAL ACTIVITY ACT, IN SO FAR AS IT ATTEMPTS TO
REGULATE THE INTERNAL AFFAIRS OF A STATE, IS AN INVASION OF THE
SOVEREIGNTY OF THE STATES IN VIOLATION OF THE UNITED STATES
CONSTITUTION.  IT FURTHER IS INVALID AS AN UNLAWFUL DELEGATION OF
POWER. 

"(2)  IF VALID, THE ACT APPLIES ONLY TO 'ACTIVE' PARTICIPATION IN
POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNS.  SUCH 'ACTIVE'
PARTICIPATION IS NOT SHOWN TO BE PRESENT IN THIS CASE. 

"(3)  IF VALID, THE ACT DID NOT WARRANT THE UNITED STATES CIVIL
SERVICE COMMISSION IN ORDERING THE REMOVAL OF A STATE OFFICER OR,
ALTERNATIVELY, THE APPLICATION OF A PENALTY TO THE STATE OF OKLAHOMA. 

"(4)  THE DECISIONS OF THE LOWER COURTS PLACE AN INTOLERABLE AND
UNJUSTIFIED RESTRICTION UPON THE RIGHT OF AN AGGRIEVED PERSON TO A
COMPLETE JUDICIAL REVIEW UNDER THE HATCH POLITICAL ACTIVITY ACT." 

FIRST.  THE GOVERNMENT'S FIRST CONTENTION IS THAT THE PETITIONER, THE
STATE OF OKLAHOMA, HAS NO STANDING TO ATTACK THE CONSTITUTIONALITY OF
SEC. 12.  IT IS ARGUED THAT THE STATE HAS NO LEGAL CAPACITY TO QUESTION
THE MANNER IN WHICH THE UNITED STATES LIMITS THE APPROPRIATION OF FUNDS
THROUGH SEC. 12(A); THAT SEC. 12(B) IS MERELY PROCEDURAL TO ASSURE THAT
THE STATUTORY REQUIREMENTS ARE OBSERVED AND THAT SEC. 12(C) IS A
SAFEGUARD AGAINST THE EXERCISE OF ARBITRARY POWER BY THE COMMISSION,
NOT A PERMISSION TO WAGE AN ATTACK ON THE ENTIRE ARRANGEMENT.  FN2 

IF THIS CONTENTION IS TREATED AS AN OBJECTION TO THE STATE'S CAPACITY
TO BRING THIS SUIT, AS NO OBJECTION WAS MADE UNTIL THE MEMORANDUM FOR
THE RESPONDENT ON THE PETITION FOR CERTIORARI, IT WOULD BE OUT OF
TIME.  A FAILURE TO OBJECT IN THE TRIAL COURT TO A PARTY'S CAPACITY IS
A WAIVER OF THAT DEFECT.  PARKER V. MOTOR BOAT SALES, 314 U.S. 244,
251.  ON THE OTHER HAND, IF THE CONTENTION IS TREATED AS MEANING THAT
NO JUSTICIABLE CONTROVERSY AS TO THE CONSTITUTIONALITY OF SEC. 12(A)
EXISTS BECAUSE PETITIONER SUFFERS NO INJURY WHICH IT MAY PROTECT
LEGALLY FROM THE WITHDRAWAL BY THE UNITED STATES OF A PORTION OF A
GRANT-IN-AID, THE OBJECTION, AS IT QUESTIONS JUDICIAL POWER TO ACT ON
THAT POINT, IS TIMELY ALTHOUGH FIRST MADE IN THIS COURT.  FN3  WE THINK
THAT THE LATTER POSITION MORE CORRECTLY REFLECTS RESPONDENT'S
CONTENTION.  THE COMMISSION URGES THE CASES LISTED IN NOTE 2 ABOVE AS
SHOWING THAT THE RELATION BETWEEN THE STATE AND FEDERAL GOVERNMENT
ARISING OUT OF GRANTS-IN-AID ARE POLITICAL AND THAT THE ORDER OF THE
COMMISSION THAT PARIS BE REMOVED WAS NOT MANDATORY.  WE THEREFORE TREAT
THE ISSUE AS PROPERLY BEFORE US. 

THE ISSUE IS WHETHER OKLAHOMA CAN CHALLENGE THE CONSTITUTIONALITY OF
SEC. 12 ON STATUTORY REVIEW OF A COMMISSION ORDER.  SUBSECTION (C)
GIVES TO ANY PARTY AGGRIEVED A JUDICIAL REVIEW OF THE COMMISSION
ORDER.  THE REVIEW IS ON THE ENTIRE RECORD AND EXTENDS TO QUESTIONS OF
FACT AND QUESTIONS OF LAW.  THE ORDER IS TO BE AFFIRMED IF THE COURT
DETERMINES THAT IT IS "IN ACCORDANCE WITH LAW."  IF THE COURT
DETERMINES THE ORDER IS NOT IN ACCORDANCE WITH LAW, THE PROCEEDING IS
TO BE REMANDED TO THE COMMISSION "WITH DIRECTIONS EITHER TO MAKE SUCH
DETERMINATION OR ORDER AS THE COURT SHALL DETERMINE TO BE IN ACCORDANCE
WITH LAW OR TO TAKE SUCH FURTHER PROCEEDINGS AS, IN THE OPINION OF THE
COURT, THE LAW REQUIRES."  FN4  WE THINK THE CHALLENGE CAN BE MADE IN
THESE REVIEW PROCEEDINGS TO THE CONSTITUTIONALITY OF THE LAW UPON WHICH
THE ORDER UNDER REVIEW IS PREDICATED. 

THE ACTIVITIES OF THE HIGHWAY COMMISSION OF OKLAHOMA WERE FINANCED IN
PART BY LOANS AND GRANTS FROM A FEDERAL AGENCY DURING ALL THE PERTINENT
TIMES.  THIS WAS THE ORGANIZATION OF WHICH PARIS WAS A MEMBER.  DURING
THE PERIOD IN QUESTION, JANUARY 15, 1943, TO OCTOBER 18, 1943, WHILE
PARIS WAS ALSO CHAIRMAN OF THE DEMOCRATIC STATE CENTRAL COMMITTEE, THE
UNITED STATES THROUGH ALLOTMENT BY FEDERAL STATUTE CONTRIBUTED OVER
$2,000,000 FOR THE HIGHWAY WORK OF THE OKLAHOMA COMMISSION.  FN5
NOTHING INDICATES THAT THESE SUMS WERE TO BE RECEIVED BY OKLAHOMA
OTHERWISE THAN IN ACCORDANCE WITH REGULAR STATUTORY APPORTIONMENT AMONG
THE STATES OF FEDERAL HIGHWAY FUNDS AND WE ASSUME THE SUMS WERE TO BE
SO RECEIVED BY OKLAHOMA.  CONGRESS MAY CREATE LEGALLY ENFORCEABLE
RIGHTS WHERE NONE BEFORE EXISTED.  PAYMENTS WERE NOT MADE AT THE
UNFETTERED INCLINATION OF A FEDERAL DISBURSING OFFICER OR HIGHWAY
AGENCY BUT ACCORDING TO STATUTORY STANDARDS, COMPLIANCE WITH WHICH
ENTITLED OKLAHOMA TO RECEIVE HER PROPER SHARE OF THE FEDERAL
APPROPRIATIONS FOR HIGHWAY CONSTRUCTION THROUGH STATE AGENCIES.  IF IT
WERE NOT FOR SEC. 12, OKLAHOMA WOULD HAVE BEEN LEGALLY ENTITLED TO
RECEIVE PAYMENT FROM THE FEDERAL DISBURSING OFFICE OF THE SUMS,
INCLUDING THE AMOUNT THAT SEC. 12(B) AUTHORIZES THE CIVIL SERVICE
COMMISSION TO REQUIRE THE DISBURSING OR ALLOCATING FEDERAL AGENCY TO
WITHHOLD FROM ITS LOANS OR GRANTS.  FN6  OKLAHOMA HAD A LEGAL RIGHT TO
RECEIVE FEDERAL HIGHWAY FUNDS BY VIRTUE OF CERTAIN CONGRESSIONAL
ENACTMENTS AND UNDER THE TERMS THEREIN PRESCRIBED.  VIOLATION OF SUCH A
STATUTORY RIGHT NORMALLY CREATES A JUSTICIABLE CAUSE OF ACTION EVEN
WITHOUT A SPECIFIC STATUTORY AUTHORIZATION FOR REVIEW.  FN7  IT MAY BE
THAT BEFORE THE PAYMENT OF THOSE FUNDS TO OKLAHOMA CONGRESS COULD HAVE
WITHDRAWN THE GRANT WITHOUT LEGAL RESPONSIBILITY FOR SUCH ACTION EITHER
IN ITS OFFICERS OR THE NATIONAL GOVERNMENT.  PERHAPS, BEFORE
DISBURSEMENT, IT COULD ADD OF ITS OWN FREE WILL ANY ADDITIONAL
REQUIREMENTS BUT WHEN IT ERECTED ADMINISTRATIVE BARS, THAT IS, A
CONDITION THAT A PART OF THE ALLOTMENT MIGHT BE WITHHELD BY ACTION OF
THE COMMISSION, WITH JUDICIAL REVIEW OF THE COMMISSION'S DETERMINATION,
WE THINK THOSE BARS LEFT TO OKLAHOMA THE RIGHT TO RECEIVE ALL FEDERAL
HIGHWAY FUNDS ALLOTTED TO THAT STATE, SUBJECT ONLY TO THE CONDITION
THAT THE LIMITATION ON THE RIGHT TO RECEIVE THE FUNDS COMPLIED WITH THE
CONSTITUTION.  ISSUES PRESENTED BY THIS SUIT, EVEN THOUGH RAISED BY A
STATE, ARE CLOSELY AKIN TO PRIVATE WRONGS.  FN8  EITHER THE STATE
EMPLOYEE OR THE STATE MAY BE THE PARTY AGGRIEVED AND MAY MAINTAIN THE
ACTION FOR JUDICIAL REVIEW.  THE POWER TO EXAMINE INTO THE
CONSTITUTIONALITY OF THE CONDITIONS WAS GIVEN THE FEDERAL COURTS BY THE
GRANT OF THE AUTHORITY TO REVIEW THE LEGALITY OF THE CIVIL SERVICE
ORDER.  THEREFORE WHEN BY SEC. 12 A RIGHT OF REVIEW OF THE CIVIL
SERVICE COMMISSION'S ORDER IS GIVEN TO OKLAHOMA, WE ARE OF THE OPINION
THAT THE CONSTITUTIONALITY OF THE STATUTORY BASIS, SEC. 12(A), OF THE
ORDER IS OPEN FOR ADJUDICATION. 

CONGRESS HAS POWER TO FIX THE CONDITIONS FOR REVIEW OF ADMINISTRATIVE
ORDERS.  FN9  BY PROVIDING FOR JUDICIAL REVIEW OF THE ORDERS OF THE
CIVIL SERVICE COMMISSION, CONGRESS MADE OKLAHOMA'S RIGHT TO RECEIVE
FUNDS A MATTER OF JUDICIAL COGNIZANCE.  OKLAHOMA'S RIGHT BECAME LEGALLY
ENFORCEABLE.  INTERFERENCE WITH THE PAYMENT OF THE FULL ALLOTMENT OF
FEDERAL HIGHWAY FUNDS TO OKLAHOMA MADE THE STATUTORY PROCEEDING TO SET
ASIDE THE ORDER A CASE OR CONTROVERSY BETWEEN OKLAHOMA AND THE
COMMISSION, WHOSE ORDER OKLAHOMA WAS AUTHORIZED TO CHALLENGE.  FN10  A
READING OF SEC. 12 WILL SHOW THE SPECIAL INTEREST OKLAHOMA HAD IN
PREVENTING THE EXERCISE OF THE CIVIL SERVICE COMMISSION'S POWER TO
DIRECT THAT OKLAHOMA'S FUNDS BE WITHHELD.  FN11  IT WAS NAMED AS THE
EMPLOYER AFFECTED BY SEC. 12(A).  NOTICES WERE SENT TO IT.  FUNDS
ALLOTTED TO OKLAHOMA WERE TO BE WITHHELD UNDER CERTAIN CONDITIONS.  IT
WAS A "PARTY AGGRIEVED."  FN12  WHEN IT BROUGHT THIS SUIT, UNDER THIS
STATUTORY AUTHORITY, OKLAHOMA WAS ENTITLED TO A JUDICIAL DETERMINATION
AS TO WHETHER THE ORDER OF THE CIVIL SERVICE COMMISSION WAS "IN
ACCORDANCE WITH LAW."  WAS THE ORDER WITHIN THE COMPETENCY OF THE
COMMISSION?  THAT QUESTION OF COMPETENCY INCLUDED THE ISSUE OF THE
CONSTITUTIONALITY OF THE BASIS FOR THE ORDER, SEC. 12(A).  FN13  ONLY
IF THE STATUTORY BASIS FOR AN ORDER IS WITHIN CONSTITUTIONAL LIMITS CAN
IT BE SAID THAT THE RESULTING ORDER IS LEGAL.  TO DETERMINE THAT
QUESTION, THE STATUTORY REVIEW MUST INCLUDE THE POWER TO DETERMINE THE
CONSTITUTIONALITY OF SEC. 12(A). 

THE CASES CITED BY THE GOVERNMENT AS POINTING TOWARD LACK OF POWER TO
ADJUDICATE THE CONSTITUTIONALITY OF SEC. 12 ARE INAPPOSITE.  NONE DENY
TO A COURT WITH JURISDICTION BY STATUTE TO REVIEW THE LEGALITY OF
ADMINISTRATIVE ORDERS THE POWER TO EXAMINE THE CONSTITUTIONALITY OF THE
STATUTE BY VIRTUE OF WHICH THE ORDER WAS ENTERED.  THE AUTHORITIES IN
NOTE 2 ABOVE, RELIED UPON BY THE GOVERNMENT, DO NOT HOLD OR IMPLY A
POSITION CONTRARY TO OUR CONCLUSION.  IN MASSACHUSETTS V. MELLON, 262
U.S. 447, THE COMMONWEALTH AND OTHERS SOUGHT DECREES TO ENJOIN THE
ENFORCEMENT OF THE FEDERAL MATERNITY ACT.  THIS COURT DENIED FEDERAL
JURISDICTION, P. 480, BECAUSE NO BURDEN WAS PLACED UPON A STATE AND NO
RIGHT INFRINGED, P. 482.  PERKINS V. LUKENS STEEL CO., 310 U.S. 113,
DENIED A MANUFACTURER WHO DESIRED TO SELL TO THE GOVERNMENT THE RIGHT
TO QUESTION A GOVERNMENT OFFICIAL'S DEFINITION OF "LOCALITY," WHICH THE
OFFICIAL WAS REQUIRED BY STATUTE TO MAKE TO DETERMINE THE MINIMUM WAGES
OF THE "LOCALITY" UNDER THE PUBLIC CONTRACTS ACT.  THE DENIAL OF
FEDERAL JURISDICTION TO DECIDE THE QUESTION WAS BECAUSE NO "LITIGABLE
RIGHTS" TO DEAL WITH THE UNITED STATES HAD BEEN BESTOWED BY THE STATUTE
ON THE WOULD-BE SELLER, PP. 125 AND 127.  THE PROSPECTIVE SELLER BY
STATUTE OR OTHERWISE HAD NOTHING TO DO WITH THE CONDITIONS OF PURCHASE
FIXED BY THE UNITED STATES.  ALABAMA POWER CO. V. ICKES, 302 U.S. 464,
DENIED THAT THE POWER COMPANY HAD ANY ENFORCEABLE LEGAL RIGHT TO BE
FREE OF COMPETITION, FINANCED BY ILLEGAL LOANS, P. 479.  THIS PRESENT
OKLAHOMA CASE IS DIFFERENTIATED FROM EACH OF THE FOREGOING BY THE
AUTHORITY FOR STATUTORY REVIEW AND BY THE EXISTENCE OF THE LEGALLY
ENFORCEABLE RIGHT TO RECEIVE ALLOCATED GRANTS WITHOUT UNLAWFUL
DEDUCTIONS. 

WE DO NOT THINK THE RULE THAT ONE MAY NOT IN THE SAME PROCEEDING BOTH
RELY UPON AND ASSAIL A STATUTE  FN14  IS APPLICABLE TO THE PRESENT
SITUATION.  IN THE CASES THE GOVERNMENT CITES, THE LITIGANTS HAD
RECEIVED OR SOUGHT ADVANTAGES FROM THE STATUTE THAT THEY WISHED TO
ATTACK, ADVANTAGES OTHER THAN THE MERE RIGHT TO SUE.  WHAT WE ARE
CONCERNED WITH IN THIS CASE IS NOT AN ESTOPPEL TO SUE BUT THE ALLOWABLE
SCOPE OF THE STATUTORY JURISDICTION. 

FROM THIS POINT OF VIEW, THE RESPONDENT URGES THAT THE CONGRESS DID
NOT INTEND TO CREATE A JUSTICIABLE RIGHT BROAD ENOUGH TO INCLUDE AN
ATTACK UPON THE CONSTITUTIONALITY OF SEC. 12(A).  WE THINK THE FINAL
SENTENCE OF SEC. 12(C), NOTE 1 SUPRA, COMES NEAR TO DEMONSTRATING THE
UNSOUNDNESS OF SUCH A CONTENTION.  IT READS: 

"IF ANY PROVISION OF THIS SUBSECTION IS HELD TO BE INVALID AS APPLIED
TO ANY PARTY WITH RESPECT TO ANY DETERMINATION OR ORDER OF THE
COMMISSION, SUCH DETERMINATION OR ORDER SHALL THEREUPON BECOME FINAL
AND EFFECTIVE AS TO SUCH PARTY IN THE SAME MANNER AS IF SUCH PROVISION
HAD NOT BEEN ENACTED." 

WE DO NOT SEE THAT THIS SENTENCE CAN MEAN ANYTHING OTHER THAN THAT
THE INVALIDITY (UNCONSTITUTIONALITY) OF ANY PROVISION OF SUBSECTION
12(B) SHOULD NOT AFFECT THE DETERMINATION OF THE CIVIL SERVICE
COMMISSION.  IN VIEW OF OUR CONCLUSION HEREINAFTER EXPRESSED THAT SEC.
12(A) IS CONSTITUTIONAL, WHETHER THE COMMISSION'S DETERMINATION WOULD
BE ENFORCEABLE WITHOUT A PARTICULAR STATUTORY PROVISION IS NOT INVOLVED
IN THIS CASE. 

THE GOVERNMENT URGES THAT THE ABSENCE OF LEGISLATIVE CONSIDERATION OF
ATTACKS ON THE CONSTITUTIONALITY OF SEC. 12 THROUGH THE PROVISION FOR
JUDICIAL REVIEW NEGATIVES "THE CONCLUSION THAT CONGRESS INTENDED
DO NOT AGREE THAT THIS LACK OF EXTENDED DISCUSSION OF THE SCOPE OF THE
JUDICIAL REVIEW BY IMPLICATION DENIES TO A LITIGANT THE RIGHT TO ATTACK
CONSTITUTIONALITY.  THE FINAL FORM OF JUDICIAL REVIEW IS DIFFERENT FROM
THAT FIRST PROPOSED.  86 CONG. REC. 2468.  NO CHANGE OF PURPOSE,
HOWEVER, APPEARS.  THE PROPOSER OF JUDICIAL REVIEW FEARED ARBITRARY
ACTION.  ID., 2469.  OTHERS A VIOLATION OF POLITICAL LIBERTY.  IT WAS
THOUGHT THE LATTER OBJECTION MIGHT BE REACHED WITHOUT RIGHT OF JUDICIAL
REVIEW.  NO ONE INTIMATED CONSTITUTIONALITY COULD NOT BE REACHED WITH
JUDICIAL REVIEW.  FN16  NONE OF THE SUBSEQUENT CHANGES IN THE BILL ARE
EFFECTIVE TO MODIFY THIS CONSTRUCTION OF THE SCOPE OF THIS JUDICIAL
REVIEW.  FN17 

SECOND.  PETITIONER'S CHIEF RELIANCE FOR ITS CONTENTION THAT SEC.
12(A) OF THE HATCH ACT IS UNCONSTITUTIONAL AS APPLIED TO OKLAHOMA IN
THIS PROCEEDING IS THAT THE SO-CALLED PENALTY PROVISIONS INVADE THE
SOVEREIGNTY OF A STATE IN SUCH A WAY AS TO VIOLATE THE TENTH AMENDMENT
FN18 BY PROVIDING FOR "POSSIBLE FORFEITURE OF STATE OFFICE OR
ALTERNATIVE PENALTIES AGAINST THE STATE."  OKLAHOMA SAYS SEC. 12(C)
"PROVIDES THAT THE COMMENCEMENT OF AN APPEAL FROM AN ORDER OF THE
COMMISSION:  '...  SHALL NOT OPERATE AS A STAY OF SUCH DETERMINATION OR
ORDER UNLESS (1) IT IS SPECIFICALLY SO ORDERED BY THE COURT, AND (2)
SUCH OFFICER OR EMPLOYEE IS SUSPENDED FROM HIS OFFICE OR EMPLOYMENT
DURING THE PENDENCY OF SUCH PROCEEDINGS....'"  THE COERCIVE EFFECT OF
THE AUTHORIZATION TO WITHHOLD SUMS ALLOCATED TO A STATE IS RELIED UPON
AS AN INTERFERENCE WITH THE RESERVED POWERS OF THE STATE. 

IN UNITED PUBLIC WORKERS V. MITCHELL, DECIDED THIS DAY, ANTE, P. 75,
WE HAVE CONSIDERED THE CONSTITUTIONALITY OF THIS PROVISION FROM THE
VIEWPOINT OF INTERFERENCE WITH A FEDERAL EMPLOYEE'S FREEDOM OF
EXPRESSION IN POLITICAL MATTERS AND AS TO WHETHER ACTING AS AN OFFICIAL
OF A POLITICAL PARTY VIOLATES THE PROVISION IN SEC. 12(A) AGAINST
TAKING PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS.  WE DO
NOT THINK THAT THE FACTS IN THIS CASE REQUIRE ANY FURTHER DISCUSSION OF
THAT ANGLE.  WE THINK THAT ACTING AS CHAIRMAN OF THE DEMOCRATIC STATE
CENTRAL COMMITTEE AND ACTING, EX OFFICIO, AS A MEMBER OF THE "VICTORY
DINNER" COMMITTEE FOR THE PURPOSE OF RAISING FUNDS FOR THE DEMOCRATIC
PARTY AND FOR SELLING WAR BONDS CONSTITUTE TAKING AN ACTIVE PART IN
POLITICAL MANAGEMENT.  WHILE THE UNITED STATES IS NOT CONCERNED WITH,
AND HAS NO POWER TO REGULATE, LOCAL POLITICAL ACTIVITIES AS SUCH OF
STATE OFFICIALS, IT DOES HAVE POWER TO FIX THE TERMS UPON WHICH ITS
MONEY ALLOTMENTS TO STATES SHALL BE DISBURSED. 

THE TENTH AMENDMENT DOES NOT FORBID THE EXERCISE OF THIS POWER IN THE
WAY THAT CONGRESS HAS PROCEEDED IN THIS CASE.  AS POINTED OUT IN UNITED
STATES V. DARBY, 312 U.S. 100, 124, THE TENTH AMENDMENT HAS BEEN
CONSISTENTLY CONSTRUED "AS NOT DEPRIVING THE NATIONAL GOVERNMENT OF
AUTHORITY TO RESORT TO ALL MEANS FOR THE EXERCISE OF A GRANTED POWER
WHICH ARE APPROPRIATE AND PLAINLY ADAPTED TO THE PERMITTED END."  THE
END SOUGHT BY CONGRESS THROUGH THE HATCH ACT IS BETTER PUBLIC SERVICE
BY REQUIRING THOSE WHO ADMINISTER FUNDS FOR NATIONAL NEEDS TO ABSTAIN
FROM ACTIVE POLITICAL PARTISANSHIP.  SO EVEN THOUGH THE ACTION TAKEN BY
CONGRESS DOES HAVE EFFECT UPON CERTAIN ACTIVITIES WITHIN THE STATE, IT
HAS NEVER BEEN THOUGHT THAT SUCH EFFECT MADE THE FEDERAL ACT INVALID. 
FN19  AS NOTHING IN THIS RECORD SHOWS ANY ATTEMPT TO SUSPEND MR. PARIS
FROM HIS DUTIES AS A MEMBER OF THE STATE HIGHWAY COMMISSION, WE ARE NOT
CALLED UPON TO DEAL WITH THE ASSERTION OF OKLAHOMA THAT A STATE OFFICER
MAY BE SUSPENDED BY A FEDERAL COURT IF SEC. 12 IS VALID.  THERE IS AN
ADEQUATE SEPARABILITY CLAUSE.  NO PENALTY WAS IMPOSED UPON THE STATE. 
A HEARING WAS HAD, CONFORMABLY TO SEC. 12, AND THE CONCLUSION WAS
REACHED THAT MR. PARIS' ACTIVE PARTICIPATION IN POLITICS JUSTIFIED HIS
REMOVAL FROM MEMBERSHIP ON THE HIGHWAY COMMISSION.  OKLAHOMA CHOSE NOT
TO REMOVE HIM.  WE DO NOT SEE ANY VIOLATION OF THE STATE'S SOVEREIGNTY
IN THE HEARING OR ORDER.  OKLAHOMA ADOPTED THE "SIMPLE EXPEDIENT" OF
NOT YIELDING TO WHAT SHE URGES IS FEDERAL COERCION.  COMPARE
MASSACHUSETTS V. MELLON, 262 U.S. 447, 482.  THE OFFER OF BENEFITS TO A
STATE BY THE UNITED STATES DEPENDENT UPON COOPERATION BY THE STATE WITH
FEDERAL PLANS, ASSUMEDLY FOR THE GENERAL WELFARE, IS NOT UNUSUAL. 
FN20 

IN ORDER TO GIVE THE CIVIL SERVICE COMMISSION ADEQUATE STANDARDS TO
MEASURE ACTIVE PARTICIPATION IN POLITICAL ACTIVITIES, CONGRESS ADOPTED
SEC. 15 OF THE HATCH ACT, QUOTED ABOVE IN NOTE 1.  BY THIS SECTION
CONGRESS MADE THE TEST OF POLITICAL ACTIVITY FOR STATE EMPLOYEES THE
SAME AS THE TEST THEN IN EFFECT FOR EMPLOYEES IN THE CLASSIFIED CIVIL
SERVICE.  THE COMMISSION HAD AT THAT TIME DETERMINED THAT "SERVICE ON
OR FOR ANY POLITICAL COMMITTEE OR SIMILAR ORGANIZATION IS PROHIBITED." 
THIS COULD ONLY MEAN THAT SERVICE ON SUCH A COMMITTEE WAS ACTIVE
PARTICIPATION IN POLITICS.  SUCH DETERMINATION WAS MADE A MATTER OF
RECORD BY SENATOR HATCH IN CHARGE OF THE BILL DURING DEBATE ON THE
SCOPE OF POLITICAL PROHIBITION.  FN21  OBVIOUSLY THE ACTIVITIES OF MR.
PARIS WERE COVERED BY THE PURPOSE AND LANGUAGE OF SEC. 12.  THE WORDS
OF SEC. 12(A) REQUIRING MR. PARIS' ABSTENTION FROM "ANY ACTIVE PART IN
POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNS" ARE DERIVED FROM RULE I OF
THE CIVIL SERVICE COMMISSION AND HAVE PERSISTED THERE SINCE 1907. 
FN22 

OKLAHOMA ALSO ARGUES THAT THE CIVIL SERVICE COMMISSION DETERMINATION
THAT THE ACTS OF MR. PARIS CONSTITUTE SUCH A VIOLATION OF SEC. 12(A) AS
TO WARRANT HIS REMOVAL FROM HIS STATE OFFICE IS NOT IN ACCORDANCE WITH
LAW BUT ARBITRARY, UNREASONABLE AND AN ABUSE OF DISCRETION.  THE FACTS
OF MR. PARIS' ACTIVITIES AND HIS CONNECTION WITH THE DEMOCRATIC STATE
CENTRAL COMMITTEE DURING HIS TENURE OF OFFICE AS A MEMBER OF THE
HIGHWAY COMMISSION OF OKLAHOMA HAVE BEEN STATED.  THE CIRCUIT COURT OF
APPEALS SAID, 153 F.2D AT 284, "MANIFESTLY, THE COMMISSION HAD SOLID
FOOTING IN THE ACT FOR THE CONCLUSION THAT REMOVAL OF PARIS FROM OFFICE
WAS WARRANTED."  WE AGREE.  FN23 

FINALLY, PETITIONER SAYS THAT SEC. 12(C), NOTE 1, SUPRA, AUTHORIZES A
REVIEW OF "EVERY MINUTE DETAIL OF THE CASE" TO "DETERMINE WHETHER
SUFFICIENT FACTS EXIST TO SUPPORT THE ORDER OF THE COMMISSION, DECIDE
WHETHER THE STATUTE HAS BEEN REASONABLY AND JUSTLY APPLIED, AND
INDEPENDENTLY RESOLVE THE ENTIRE QUESTION AS THOUGH THE FEDERAL COURT
HAD BEEN THE FORUM IN THE FIRST INSTANCE."  THE BASIS FOR THIS
ARGUMENT, IN SO FAR AS IT DIFFERS FROM THAT REFERRED TO IN THE
PRECEDING PARAGRAPH, IS DRAWN FROM THE LANGUAGE OF SEC. 12(C) THAT "THE
REVIEW BY THE COURT SHALL BE ON THE RECORD ENTIRE, INCLUDING ALL OF THE
EVIDENCE TAKEN ON THE HEARING, AND SHALL EXTEND TO QUESTIONS OF FACT
AND QUESTIONS OF LAW....  THE COURT SHALL AFFIRM THE COMMISSION'S
DETERMINATION OR ORDER, OR ITS MODIFIED DETERMINATION OR ORDER, IF THE
COURT DETERMINES THAT THE SAME IS IN ACCORDANCE WITH LAW."  AS THE
FACTS WERE STIPULATED AND NO OBJECTION HAS BEEN TAKEN TO THE FINDINGS
OF FACT, 61 F.SUPP.  355, 357(5); 153 F.2D 280, 283, THE ATTACK, ON
THIS ISSUE, IS LIMITED TO AN EXAMINATION INTO WHETHER OR NOT THE
COMMISSION ABUSED ITS DISCRETION IN THE ORDER OF REMOVAL.  AS
HERETOFORE STATED, THE PROVISIONS FOR REVIEW UNDERWENT CHANGES DURING
THE PASSAGE OF THE ACT.  FN24 AS FINALLY ADOPTED, HOWEVER, THE
REVIEWING COURT IS DIRECTED TO REMAND WHEN IT DETERMINES THAT THE
ACTION OF THE COMMISSION "IS NOT IN ACCORDANCE WITH LAW."  SEC. 12(C). 
FN25  THE QUESTION OF "THE REMOVAL OF AN OFFICER OR EMPLOYEE," SEC.
12(B), NOTE 1, SUPRA, WE THINK IS A MATTER OF ADMINISTRATIVE
DISCRETION.  SINCE UNDER RULE I OF THE CIVIL SERVICE COMMISSION THE
TAKING OF "ANY ACTIVE PART IN POLITICAL MANAGEMENT OR POLITICAL
CAMPAIGNS" HAD BEEN DETERMINED BY THE COMMISSION TO INCLUDE SERVICE ON
A POLITICAL COMMITTEE, SEE NOTES 37 AND 38 OF UNITED PUBLIC WORKERS V.
MITCHELL, ANTE, P. 75, IT IS CLEAR MR. PARIS' POSITION VIOLATED SEC. 15
OF THE HATCH ACT.  NOTE 1, SUPRA.  IT COULD HARDLY BE SAID THAT THE
DETERMINATION OF THE COMMISSION IN ORDERING HIS REMOVAL WAS AN ABUSE OF
ITS DISCRETION.  SEE 61 F.SUPP.  AT 357(6) AND (7); 153 F.2D AT 283
84.  JUDGMENT AFFIRMED. 

FN1  53 STAT. 1147, AS MAENDED, 54 STAT. 767: 

"SEC. 12.  (A)  NO OFFICER OR EMPLOYEE OF ANY STATE OR LOCAL AGENCY
WHOSE PRINCIPAL EMPLOYMENT IS IN CONNECTION WITH ANY ACTIVITY WHICH IS
FINANCED IN WHOLE OR IN PART BY LOANS OR GRANTS MADE BY THE UNITED
STATES OR BY ANY FEDERAL AGENCY SHALL  ...  TAKE ANY ACTIVE PART IN
POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS  .... 

"(B)  IF ANY FEDERAL AGENCY CHARGED WITH THE DUTY OF MAKING ANY LOAN
OR GRANT OF FUNDS OF THE UNITED STATES FOR USE IN ANY ACTIVITY BY ANY
OFFICER OR EMPLOYEE TO WHOM THE PROVISIONS OF SUBSECTION (A) ARE
APPLICABLE HAS REASON TO BELIEVE THAT ANY SUCH OFFICER OR EMPLOYEE HAS
VIOLATED THE PROVISIONS OF SUCH SUBSECTION, IT SHALL MAKE A REPORT WITH
RESPECT THERETO TO THE UNITED STATES CIVIL SERVICE COMMISSION
(HEREINAFTER REFERRED TO AS THE 'COMMISSION').  UPON THE RECEIPT OF ANY
SUCH REPORT, OR UPON THE RECEIPT OF ANY OTHER INFORMATION WHICH SEEMS
TO THE COMMISSION TO WARRANT AN INVESTIGATION, THE COMMISSION SHALL FIX
A TIME AND PLACE FOR A HEARING, AND SHALL BY REGISTERED MAIL SEND TO
THE OFFICER OR EMPLOYEE CHARGED WITH THE VIOLATION AND TO THE STATE OR
LOCAL AGENCY EMPLOYING SUCH OFFICER OR EMPLOYEE A NOTICE SETTING FORTH
A SUMMARY OF THE ALLEGED VIOLATION AND THE TIME AND PLACE OF SUCH
HEARING.  AT SUCH HEARING (WHICH SHALL BE NOT EARLIER THAN TEN DAYS
AFTER THE MAILING OF SUCH NOTICE) EITHER THE OFFICER OR EMPLOYEE OR THE
STATE OR LOCAL AGENCY, OR BOTH, MAY APPEAR WITH COUNSEL AND BE HEARD. 
AFTER SUCH HEARING, THE COMMISSION SHALL DETERMINE WHETHER ANY
VIOLATION OF SUCH SUBSECTION HAS OCCURRED AND WHETHER SUCH VIOLATION,
IF ANY, WARRANTS THE REMOVAL OF THE OFFICER OR EMPLOYEE BY WHOM IT WAS
COMMITTED FROM HIS OFFICE OR EMPLOYMENT, AND SHALL BY REGISTERED MAIL
NOTIFY SUCH OFFICER OR EMPLOYEE AND THE APPROPRIATE STATE OR LOCAL
AGENCY OF SUCH DETERMINATION.  IF IN ANY CASE THE COMMISSION FINDS THAT
SUCH OFFICER OR EMPLOYEE HAS NOT BEEN REMOVED FROM HIS OFFICE OR
EMPLOYMENT WITHIN THIRTY DAYS AFTER NOTICE OF A DETERMINATION BY THE
COMMISSION THAT SUCH VIOLATION WARRANTS HIS REMOVAL, OR THAT HE HAS
BEEN SO REMOVED AND HAS SUBSEQUENTLY (WITHIN A PERIOD OF EIGHTEEN
MONTHS) BEEN APPOINTED TO ANY OFFICE OR EMPLOYMENT IN ANY STATE OR
LOCAL AGENCY IN SUCH STATE, THE COMMISSION SHALL MAKE AND CERTIFY TO
THE APPROPRIATE FEDERAL AGENCY AN ORDER REQUIRING IT TO WITHHOLD FROM
ITS LOANS OR GRANTS TO THE STATE OR LOCAL AGENCY TO WHICH SUCH
NOTIFICATION WAS GIVEN AN AMOUNT EQUAL TO TWO YEARS' COMPENSATION AT
THE RATE SUCH OFFICER OR EMPLOYEE WAS RECEIVING AT THE TIME OF SUCH
VIOLATION; EXCEPT THAT IN ANY CASE OF SUCH A SUBSEQUENT APPOINTMENT TO
A POSITION IN ANOTHER STATE OR LOCAL AGENCY WHICH RECEIVES LOANS OR
GRANTS FROM ANY FEDERAL AGENCY, SUCH ORDER SHALL REQUIRE THE
WITHHOLDING OF SUCH AMOUNT FROM SUCH OTHER STATE OR LOCAL AGENCY:.... 
"(C)  ANY PARTY AGGRIEVED BY ANY DETERMINATION OR ORDER OF THE
COMMISSION UNDER SUBSECTION (B) MAY, WITHIN THIRTY DAYS AFTER THE
MAILING OF NOTICE OF SUCH DETERMINATION OR ORDER, INSTITUTE PROCEEDINGS
FOR THE REVIEW THEREOF BY FILING A WRITTEN PETITION IN THE DISTRICT
COURT OF THE UNITED STATES FOR THE DISTRICT IN WHICH SUCH OFFICER OR
EMPLOYEE RESIDES; BUT THE COMMENCEMENT OF SUCH PROCEEDINGS SHALL NOT
OPERATE AS A STAY OF SUCH DETERMINATION OR ORDER UNLESS (1) IT IS
SPECIFICALLY SO ORDERED BY THE COURT, AND (2) SUCH OFFICER OR EMPLOYEE
IS SUSPENDED FROM HIS OFFICE OR EMPLOYMENT DURING THE PENDENCY OF SUCH
PROCEEDINGS.  A COPY OF SUCH PETITION SHALL FORTHWITH BE SERVED UPON
THE COMMISSION, AND THEREUPON THE COMMISSION SHALL CERTIFY AND FILE IN
THE COURT A TRANSCRIPT OF THE RECORD UPON WHICH THE DETERMINATION OR
THE ORDER COMPLAINED OF WAS MADE.  THE REVIEW BY THE COURT SHALL BE ON
THE RECORD ENTIRE, INCLUDING ALL OF THE EVIDENCE TAKEN ON THE HEARING,
AND SHALL EXTEND TO QUESTIONS OF FACT AND QUESTIONS OF LAW  ....  THE
COURT SHALL AFFIRM THE COMMISSION'S DETERMINATION OR ORDER, OR ITS
MODIFIED DETERMINATION OR ORDER, IF THE COURT DETERMINES THAT THE SAME
IS IN ACCORDANCE WITH LAW.  IF THE COURT DETERMINES THAT ANY SUCH
DETERMINATION OR ORDER, OR MODIFIED DETERMINATION OR ORDER, IS NOT IN
ACCORDANCE WITH LAW, THE COURT SHALL REMAND THE PROCEEDING TO THE
COMMISSION WITH DIRECTIONS EITHER TO MAKE SUCH DETERMINATION OR ORDER
AS THE COURT SHALL DETERMINE TO BE IN ACCORDANCE WITH LAW OR TO TAKE
SUCH FURTHER PROCEEDINGS AS, IN THE OPINION OF THE COURT, THE LAW
REQUIRES.  THE JUDGMENT AND DECREE OF THE COURT SHALL BE FINAL, SUBJECT
TO REVIEW BY THE APPROPRIATE CIRCUIT COURT OF APPEALS AS IN OTHER
CASES, AND THE JUDGMENT AND DECREE OF SUCH CIRCUIT COURT OF APPEALS
SHALL BE FINAL, SUBJECT TO REVIEW BY THE SUPREME COURT OF THE UNITED
STATES ON CERTIORARI OR CERTIFICATION AS PROVIDED IN SECTIONS 239 AND
240 OF THE JUDICIAL CODE, AS AMENDED (U.S.C., 1934 EDITION, TITLE 28,
SECS. 346 AND 347).  IF ANY PROVISION OF THIS SUBSECTION IS HELD TO BE
INVALID AS APPLIED TO ANY PARTY WITH RESPECT TO ANY DETERMINATION OR
ORDER OF THE COMMISSION, SUCH DETERMINATION OR ORDER SHALL THEREUPON
BECOME FINAL AND EFFECTIVE AS TO SUCH PARTY IN THE SAME MANNER AS IF
SUCH PROVISION HAD NOT BEEN ENACTED. 

     .    .         .         .         . 

"SEC. 15.  THE PROVISIONS OF THIS ACT WHICH PROHIBIT PERSONS TO WHOM
SUCH PROVISIONS APPLY FROM TAKING ANY ACTIVE PART IN POLITICAL
MANAGEMENT OR IN POLITICAL CAMPAIGNS SHALL BE DEEMED TO PROHIBIT THE
SAME ACTIVITIES ON THE PART OF SUCH PERSONS AS THE UNITED STATES CIVIL
SERVICE COMMISSION HAS HERETOFORE DETERMINED ARE AT THE TIME THIS
CLASSIFIED CIVIL SERVICE OF THE UNITED STATES BY THE PROVISIONS OF THE
CIVIL-SERVICE RULES PROHIBITING SUCH EMPLOYEES FROM TAKING ANY ACTIVE
PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS." 

FN2  MASSACHUSETTS V. MELLON, 262 U.S. 447, 482; PERKINS V. LUKENS
STEEL CO., 310 U.S. 113; ALABAMA POWER CO. V. ICKES, 302 U.S. 464, 479,
ARE CITED AS AUTHORITY, TOGETHER WITH OTHER CASES. 

FN3  A RESPONDENT CAN SUPPORT HIS JUDGMENT ON ANY GROUND THAT APPEARS
IN THE RECORD.  LETULLE V. SCOFIELD, 308 U.S. 415, 421; GAINESVILLE V.
BROWN-CRUMMER CO., 277 U.S. 54, 59. 

FN4  SEE NOTE 1, SUPRA, SEC. 12(C). 

FN5  SEE FEDERAL HIGHWAY ACT, 42 STAT. 212, AS AMENDED, 23 U.S.C.
SEC. 1-117. 

FN6  CF. COLUMBIA SYSTEM V. UNITED STATES, 316 U.S. 407, 422. 

FN7  SEE DEITRICK V. GREANEY, 309 U.S. 190, 198, 200-201; STEELE V.
LOUISVILLE & NASHVILLE RAILROAD CO., 323 U.S. 192, 202. 

FN8  SEE THE DISCUSSION IN COLEGROVE V. GREEN, 328 U.S. 549. 

FN9  AMERICAN POWER CO. V. S.E.C., 325 U.S. 385, 389. 

FN10  FEDERAL POWER COMMISSION V. PACIFIC POWER & LIGHT CO., 307 U.S.
156, 159. 

FN11  CHICAGO JUNCTION CASE, 264 U.S. 258, 266(SECOND); Z. & F.
ASSETS REALIZATION CORP. V. HULL, 311 U.S. 470, 485. 

FN12  FEDERAL POWER COMMISSION V. PACIFIC POWER & LIGHT CO., 307 U.S.
156, 159; FEDERAL COMMUNICATIONS COMMISSION V. SANDERS BROTHERS RADIO
STATION, 309 U.S. 470, 476; AMERICAN POWER CO. V. S.E.C., 325 U.S. 385,
390; PARKER V. FLEMING, 329 U.S. 531. 

FN13  CF. LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1, 25, 43, 49;
NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, 288 U.S. 294, 321-24;
UNITED STATES V. RUZICKA, 329 U.S. 287, 294. 

JUDICIAL REVIEW NORMALLY INCLUDES ISSUES OF THE CONSTITUTIONALITY OF
ENACTMENTS AND ACTION THEREUNDER.  60 STAT. 237, 243, SEC. 10(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." 

SEE THE FULL DISCUSSION OF THE "SCOPE OF REVIEW," LEGISLATIVE
HISTORY, ADMINISTRATIVE PROCEDURE ACT, S. DOC. NO. 248, 79TH CONG., 2D
SESS., P. 213, (E), AND P. 278, SEC. 10(E). 

FN14  SEE HURLEY V. COMMISSION OF FISHERIES, 257 U.S. 223; UNITED
FUEL GAS CO. V. RAILROAD COMMISSION OF KENTUCKY, 278 U.S. 300; GREAT
FALLS MFG. CO. V. ATTORNEY GENERAL, 124 U.S. 581. 

FN15  IT CITES 86 CONG. REC. 2354, 2429, 2440, 2468-2474, 9448, 9452;
H. REP. 2376, 76TH CONG., 3D SESS., P. 9. 

FN16  86 CONG. REC. 2470: 

"MR. LUCAS.  I HAVE GREAT RESPECT FOR THE OPINIONS OF THE SENATOR
FROM NEBRASKA.  I RISE TO ASK HIM A QUESTION:  DOES THE SENATOR FROM
NEBRASKA BELIEVE THAT THE QUESTION OF POLITICAL LIBERTY IS INVOLVED IN
THE PENDING LEGISLATION IN ANY WAY? 

"MR. NORRIS.  I HAVE NOT THOUGHT SO. 

"MR. LUCAS.  IN OTHER WORDS, THE SENATOR DOES NOT BELIEVE THAT THE
POLITICAL RIGHTS OF AN INDIVIDUAL WHO IS CHARGED WITH VIOLATION OF THE
STATUTE ARE BEING INVADED? 

"MR. NORRIS.  MR. PRESIDENT, I NOW UNDERSTAND THE SENATOR'S
QUESTION.  I DO NOT BELIEVE SO. SOME HONEST MEN WHO ARE BETTER LAWYERS
THAN I AM BELIEVE THOSE RIGHTS ARE INVADED.  THAT QUESTION CAN EASILY
BE TESTED, HOWEVER, WITHOUT HAVING THE AMENDMENT ADOPTED AND PASSED
UPON.  IF THE POLITICAL RIGHTS OF AN INDIVIDUAL WERE INVADED, THEN THE
LAW WOULD BE UNCONSTITUTIONAL, AND ONE COULD GET INTO COURT IMMEDIATELY
BY VARIOUS KINDS OF APPLICATIONS.  THE QUESTION COULD BE PLACED BEFORE
A COURT AND CARRIED TO THE SUPREME COURT AND THAT COURT COULD PASS UPON
IT.  THE ADOPTION OF THE PARTICULAR AMENDMENT IN QUESTION WOULD NOT
ASSIST IN THAT RESPECT.  IF THE LAW IS UNCONSTITUTIONAL, IT WILL BE SO
FOUND VERY SOON, EVEN WITHOUT THE ADOPTION OF THIS AMENDMENT, AND THE
LAW WILL FALL. 

"MR. LUCAS.  BUT IF THE SENATOR FROM NEBRASKA ENTERTAINS THE SAME
VIEW AS THAT ENTERTAINED BY THE SENATOR FROM ILLINOIS WITH RESPECT TO
THE INVASION OF THE POLITICAL RIGHTS OF AN INDIVIDUAL, THEN, I TAKE IT,
THE SENATOR FROM NEBRASKA WILL AGREE THAT IN CASE AN INDIVIDUAL WERE
CHARGED WITH VIOLATION OF THE STATUTE HE SHOULD HAVE HIS RIGHTS
DETERMINED BY THE COURT OF LAST RESORT? 

"MR. NORRIS.  I AGREE WITH THE SENATOR.  BUT WE DO NOT NEED THIS
AMENDMENT IN ORDER TO GET A DECISION ON THE MATTER.  THAT IS MY
CONTENTION.  WE COULD NOT PUT ANYTHING INTO THE LAW, HOWEVER INGENIOUS
WE MIGHT BE, WHICH WOULD TAKE AWAY THE CONSTITUTIONAL RIGHTS OF ANY
CITIZEN, AND IF SUCH AN ATTEMPT WERE MADE THE CITIZEN COULD GO INTO
COURT AND HAVE THE QUESTION DETERMINED, EVEN WITHOUT THE ADOPTION OF
LANGUAGE SUCH AS CONTAINED IN THE PENDING AMENDMENT." 

FN17  SEE 86 CONG. REC. 9446, 9495. 

FN18  "THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE
CONSTITUTION, NOR PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE
STATES RESPECTIVELY, OR TO THE PEOPLE." 

FN19  VEAZIE BANK V. FENNO, 8 WALL.  533, 547; STEARNS V. MINNESOTA,
179 U.S. 223, 244; FLORIDA V. MELLON, 273 U.S. 12; HELVERING V.
THERRELL, 303 U.S. 218; WRIGHT V. UNION CENTRAL INS. CO., 304 U.S. 502,
516; ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 338. 

FN20  STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 593-98; UNITED
STATES V. BEKINS, 304 U.S. 27, 51-54.  A REVIEW OF GRANTS-IN-AID WILL
BE FOUND IN 8 AMERICAN LAW SCHOOL REVIEW, CORWIN: NATIONAL-STATE
COOPERATION, 687, 698. 

FN21  86 CONG. REC. 2938, SEC. 15 OF EXHIBIT. 

FN22  SEE UNITED PUBLIC WORKERS V. MITCHELL, ANTE, PP. 79-81, NOTES
4, 5 AND 6. 

FN23  SEE JACOB SIEGEL CO. V. FEDERAL TRADE COMMISSION, 327 U.S.
608. 

FN24  SEE 86 CONG. REC. 2468-2474; S. 3046 IN THE HOUSE OF
REPRESENTATIVES, UNION CALENDAR NO. 924, JUNE 4, 1940, PP. 4 AND 17; H.
REP. NO. 2376, 76TH CONG., 3D SESS., P. 9.  THE AMENDMENT WHICH
RESULTED IN THE PRESENT FORM OF THE SECTION APPEARS AT 86 CONG. REC.
9448. 

FN25  THE FOLLOWING ALSO APPEARS IN THE SECTION: 

"THE COMMISSION MAY MODIFY ITS FINDINGS OF FACT OR ITS DETERMINATION
OR ORDER BY REASON OF THE ADDITIONAL EVIDENCE SO TAKEN AND SHALL FILE
WITH THE COURT SUCH MODIFIED FINDINGS, DETERMINATION, OR ORDER, AND ANY
SUCH MODIFIED FINDINGS OF FACT, IF SUPPORTED BY SUBSTANTIAL EVIDENCE,
SHALL BE CONCLUSIVE."  54 STAT. 767, 769. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK AND MR. JUSTICE RUTLEDGE DISSENT. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IT IS OF COURSE SETTLED THAT THIS COURT MUST CONSIDER, WHENEVER THE
QUESTION IS RAISED OR EVEN THOUGH NOT RAISED BY COUNSEL, THE
JURISDICTION OF THE LOWER FEDERAL COURTS AS WELL AS THE JURISDICTION OF
THIS COURT.  MANSFIELD, C. & L.M. RY. V. SWAN, 111 U.S. 379, 382.  BUT
WHETHER A STATE HAS STANDING TO URGE A CLAIM OF CONSTITUTIONALITY UNDER
A CONGRESSIONAL GRANT-IN-AID STATUTE DOES NOT INVOLVE "JURISDICTION IN
THE SENSE OF A COURT'S POWER BUT ONLY THE CAPACITY OF THE STATE TO BE A
LITIGANT TO INVOKE THAT POWER.  IN THIS LITIGATION THE GOVERNMENT DID
NOT CHALLENGE THE STANDING OF OKLAHOMA TO QUESTION THE
CONSTITUTIONALITY OF THE ACT UNTIL THE CASE CAME HERE.  I THINK IT IS
TOO LATE TO RAISE THAT QUESTION AT THIS STAGE.  ASSUMING THAT IT IS
HERE, IT IS MY VIEW THAT UNDER THE HATCH ACT, IN THE LEGISLATIVE AND
JUDICIAL CONTEXT IN WHICH IT MUST BE READ, THE STATE CAN QUESTION ONLY
THE CORRECTNESS OF THE PROCEDURE AND THE DETERMINATION OF THE CIVIL
SERVICE COMMISSION, NOT THE VALIDITY OF THE ACT.  SECTION 12(B), (C),
54 STAT. 767, AMENDING 53 STAT. 1147, 18 U.S.C. SEC. 61L (B) AND (C). 

THE ADMINISTRATIVE PROCEDURE ACT DOES NOT APPLY TO THE PRESENT CASE. 
ACT OF JUNE 11, 1946, 60 STAT. 237, SEC. 12.  THAT ACT WILL, IN DUE
COURSE, PRESENT PROBLEMS FOR ADJUDICATION.  WE OUGHT NOT TO ANTICIPATE
THEM WHEN, BEING IRRELEVANT, THEY ARE NOT BEFORE US.  THE ACT OUGHT NOT
TO BE USED EVEN FOR ILLUSTRATIVE PURPOSE BECAUSE ILLUSTRATIONS DEPEND
ON CONSTRUCTION OF THE ACT. 

APART FROM THE FOREGOING, I AGREE WITH MR. JUSTICE REED'S OPINION. 
..END :
















KRUG V. SANTA FE P.R. CO., 329 U.S. 591 


NOS. 97 AND 98.  ARGUED JANUARY 6, 7, 1947.  - DECIDED FEBRUARY 3,
1947.  - 153 F.2D 305, REVERSED. 


1.  A RELEASE FILED BY A LAND-GRANT RAILROAD PURSUANT TO SEC. 321(B)
OF THE TRANSPORTATION ACT OF 1940, AS A CONDITION TO COLLECTING
COMMERCIAL RATES ON TRANSPORTATION FOR THE GOVERNMENT, EXTINGUISHES THE
RIGHT OF THE RAILROAD TO SELECT LANDS IN LIEU OF LANDS ORIGINALLY
ACQUIRED UNDER THE ACT OF 1866 IN AID OF CONSTRUCTION BUT RELINQUISHED
UNDER THE ACTS OF 1874 AND 1904.  PP. 596-597. 

2.  CONGRESS INTENDED BY THE 1940 ACT THAT A RELEASE FILED PURSUANT
THERETO SHOULD BAR ANY FUTURE CLAIMS ARISING OUT OF ANY OR ALL OF THE
LAND-GRANT ACTS, SO FAR AS SUCH CLAIMS ARISE FROM ORIGINALLY GRANTED,
INDEMNITY OR LIEU LANDS.  P. 598. 

KRUG, SECRETARY OF THE INTERIOR, ET AL. V. SANTA FE PACIFIC RAILROAD
CO. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

RESPONDENT RAILROAD COMPANY BROUGHT TWO SUITS IN THE DISTRICT COURT
TO COMPEL THE SECRETARY OF THE INTERIOR TO DETERMINE RESPONDENT'S RIGHT
TO "LIEU" LANDS, WITHOUT REGARD TO A RELEASE FILED BY RESPONDENT
PURSUANT TO SEC. 321(B) OF THE TRANSPORTATION ACT OF 1940.  THE
DISTRICT COURT DISMISSED THE COMPLAINTS ON THE MERITS.  57 F.SUPP. 
984.  THE COURT OF APPEALS REVERSED.  80 U.S. APP. D.C. 360, 153 F.2D
305.  THIS COURT GRANTED CERTIORARI.  328 U.S. 832.  REVERSED, P. 598. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THE FIRST HALF OF THE NINETEENTH CENTURY THE UNITED STATES
ACQUIRED A VAST NEW AREA OF SPARSELY POPULATED LANDS IN THE SOUTH AND
WEST.  SETTLEMENT AND ABSORPTION OF THIS TERRITORY INTO THE OLDER PART
OF THE COUNTRY BECAME A NATIONAL PROBLEM WHICH DEMANDED FOR ITS
SOLUTION A MORE RAPID AND EXTENSIVE MEANS OF TRANSPORTATION OF GOODS
AND PEOPLE THAN WAS PROVIDED BY WAGONS, STAGECOACHES, AND WATERWAYS. 
THE BUILDING OF RAILROADS LARGELY PROVIDED THE ANSWER.  THEY MADE IT
POSSIBLE FOR THE FRONTIER HOMESTEADS AND COMMUNITIES TO BE ESTABLISHED
ON THE LANDS OF THE NEW TERRITORY AND YET MAINTAIN LIVE CONTACT WITH
THE NATIONAL ECONOMY AND CULTURE.  TO ENCOURAGE A RAPID RAILROAD
BUILDING PROGRAM, CONGRESS CHOSE TO MAKE PUBLIC GRANTS OF A LARGE
PROPORTION OF THE NEW LANDS TO UNDERWRITE AND SUBSIDIZE THE
PARTICIPATION OF PRIVATE INDIVIDUALS AND PRIVATELY OWNED COMPANIES IN
THE PROGRAM.  FN1  IN THIS CONGRESSIONAL PROGRAM OF LAND GRANTS "IN AID
OF CONSTRUCTION" WERE SOWN THE SEEDS OF THE PRESENT LAWSUIT. 

ENORMOUS AREAS OF PUBLIC LANDS WERE GRANTED RAILROADS, ALMOST EQUAL
TO THE ACREAGE OF THE NEW ENGLAND STATES, NEW YORK AND PENNSYLVANIA
COMBINED.  FN2  EXECUTION OF THE LAND-GRANT PROGRAM WAS MARKED BY
INNUMERABLE COMPLEX AND UNFORESEEN DIFFICULTIES; ITS COURSE HAS BEEN
BESET BY CLAIMS AND COUNTERCLAIMS ASSERTED BY AND BETWEEN SETTLERS,
RAILROADS, AND GOVERNMENT.  FN3  CONGRESS, THE EXECUTIVE AGENCIES, AND
THE COURTS HAVE BEEN REPEATEDLY CALLED UPON TO HELP RESOLVE THESE
CONFLICTING CLAIMS.  THE LAPSE OF NEARLY A CENTURY SINCE THE PROGRAM
WAS INSTITUTED HAS NOT RESOLVED ALL OF THEM.  THIS LAWSUIT REQUIRES
CONSIDERATION OF OLD AND RECENT CONGRESSIONAL EFFORTS TO SETTLE THESE
PERSISTENTLY RECURRING CONTROVERSIES. 

ONE SUBSTANTIAL FIELD OF RAILROAD-GOVERNMENT CONTROVERSY HAS BEEN THE
TERMS OF THE ORIGINAL LAND-GRANT ACTS WHICH REQUIRED THE RAILROADS TO
CARRY GOVERNMENT GOODS AND PERSONNEL FREE OF TOLLS.  BY REASON OF
JUDICIAL INTERPRETATION OF THESE TERMS, AS SUPPLEMENTED BY PERIODIC
LEGISLATION,  FN4  LAND-GRANT RAILROADS FOR MORE THAN HALF A CENTURY
IMMEDIATELY PRIOR TO 1940 TRANSPORTED FOR THE GOVERNMENT AT ONE-HALF OF
THE STANDARD COMMERCIAL RATES.  DURING THE DEPRESSION YEARS BEGINNING
IN THE LATE 1920'S AND IMMEDIATELY FOLLOWING, RAILROAD EARNINGS
DECLINED CONSIDERABLY, AND A MOVEMENT BEGAN TO RELIEVE THE ROADS OF
THEIR LAND-GRANT RATE OBLIGATIONS.  STUDIES BY SOME GOVERNMENT-SELECTED
AGENCIES RECOMMENDED LEGISLATION FOR OUTRIGHT REPEAL OF THE PROVISIONS
FOR RATE CONCESSIONS TO THE GOVERNMENT.  FN5  BILLS TO ACCOMPLISH THIS
IN THE 75TH AND 76TH CONGRESSES FAILED TO PASS.  FN6  BUT SEC. 321 OF
THE TRANSPORTATION ACT OF 1940 FN7  PROVIDED THAT LAND-GRANT ROADS
COULD, BY COMPLIANCE WITH SPECIFIED CONDITIONS,  FN8  COLLECT FROM THE
GOVERNMENT FULL COMMERCIAL RATES, EXCEPT FOR THE TRANSPORTATION OF
MILITARY AND NAVAL FREIGHT AND PERSONNEL.  IN BRIEF, IT REQUIRED THAT A
RAILROAD, TO QUALIFY FOR FULL RATES, MUST EXECUTE, WITHIN A YEAR AFTER
PASSAGE OF THE ACT, A RELEASE OF ANY CLAIM IT MIGHT HAVE "AGAINST THE
UNITED STATES TO LANDS, INTERESTS IN LANDS, COMPENSATION, OR
REIMBURSEMENT ON ACCOUNT OF LANDS OR INTERESTS IN LANDS WHICH HAVE BEEN
GRANTED, CLAIMED TO HAVE BEEN GRANTED, OR WHICH IT IS CLAIMED SHOULD
HAVE BEEN GRANTED TO SUCH CARRIER OR ANY  ...  PREDECESSOR IN INTEREST
UNDER ANY GRANT TO SUCH CARRIER OR SUCH PREDECESSOR IN INTEREST AS
AFORESAID." 

SHORTLY AFTER PASSAGE OF THIS ACT RESPONDENT TOOK ADVANTAGE OF IT,
AND GAVE THE GOVERNMENT A RELEASE FRAMED SUBSTANTIALLY IN THE WORDS OF
THE STATUTE.  FN9  ITS PREDECESSOR IN INTEREST HAD OBTAINED A GRANT OF
LANDS IN ARIZONA AND NEW MEXICO, UNDER AN ACT OF 1866 CONTAINING THE
USUAL GOVERNMENTAL RATE-CONCESSION TERMS.  14 STAT. 292, 297.  FN10
THE 1866 ACT HAD SPECIFICALLY RECITED THAT IF THE GOVERNMENT, BECAUSE
OF PRIOR SETTLEMENT OF PART OF THE GRANTED LANDS BY HOMESTEADERS, COULD
NOT GIVE POSSESSION TO SOME OF THE LANDS GRANTED TO THE RAILROAD, IT
COULD SELECT, UNDER THE DIRECTION OF THE SECRETARY OF THE INTERIOR,
OTHER PUBLIC LANDS IN LIEU OF THEM AS AN INDEMNITY.  RESPONDENT HAD
LARGE OUTSTANDING CLAIMS AGAINST THE GOVERNMENT FOR THESE "INDEMNITY"
LANDS WHEN IT SIGNED THE RELEASE AND CONCEDES THAT THE RELEASE
EXTINGUISHES THESE CLAIMS. 

BUT IT HAD OTHER SO-CALLED LIEU LAND CLAIMS AGAINST THE GOVERNMENT
WHICH IT ASSERTS WERE NOT EXTINGUISHED.  THE RAILROAD URGES THAT THESE
CLAIMS ARE NOT COVERED BY THE ACT OR BY THE RELEASE.  THEY, ALLEGEDLY,
ARE NOT CLAIMS "ON ACCOUNT OF" OR "UNDER ANY GRANT" OF LANDS, BUT REST
ON CONTRACTUAL EXCHANGES OF LANDS MADE UNDER THE ACTS OF 1874 AND
1904.  18 STAT. 194; 33 STAT. 556.  THESE ACTS LARGELY REPRESENTED A
CONGRESSIONAL EFFORT TO SETTLE CONFLICTS AMONG RAILROADS, GOVERNMENT,
AND SETTLERS, WHICH AROSE BY REASON OF SETTLEMENT BY HOMESTEADERS ON
RAILROAD-GRANTED LANDS AFTER THE GRANTS HAD BEEN MADE.  BOTH ACTS
PROVIDED THAT WHERE SETTLERS HAD SO OCCUPIED RAILROAD-GRANTED LANDS,
THE RAILROAD COULD, UPON RELINQUISHMENT OF ITS TITLE TO THEM, SELECT
OTHER LANDS IN LIEU OF THEM.  THE PROCEDURE FOR SELECTING THE LIEU
LANDS UNDER THE 1874 AND 1904 ACTS WAS SUBSTANTIALLY IDENTICAL TO THE
ORIGINAL PROCEDURE PROVIDED BY THE ACTS FOR SELECTION OF INDEMNITY
LANDS.  BEFORE THE 1940 ACT RESPONDENT HAD, UNDER THE 1874 AND 1904
ACTS, RELINQUISHED TITLE TO THE GOVERNMENT TO CERTAIN LANDS PREVIOUSLY
GRANTED.  IN AUGUST 1940, AND SUBSEQUENTLY IN MARCH 1943, RESPONDENT
FILED APPLICATIONS WITH THE SECRETARY OF THE INTERIOR TO SELECT ITS
LIEU LANDS.  AFTER THE RESPONDENT SIGNED THE RELEASE, AND BECAUSE OF
IT, THE SECRETARY REJECTED THE APPLICATIONS.  THE RAILROAD THEN FILED
THIS SUIT IN A FEDERAL DISTRICT COURT FOR RELIEF BY INJUNCTION OR BY
WAY OF MANDAMUS TO REQUIRE THE SECRETARY AND OTHER INTERIOR DEPARTMENT
OFFICIALS TO PASS ON ITS APPLICATIONS WITHOUT REGARD TO THE RELEASE. 
THE DISTRICT COURT DISMISSED THE BILL ON THE MERITS, HOLDING THAT THE
STATUTE AND RELEASE BARRED THE CLAIMS.  IT READ THE 1940 ACT AS
DEFINING A CONGRESSIONAL PURPOSE "TO WIPE THE SLATE CLEAN OF SUCH
CLAIMS BY ANY RAILROAD WHICH ENJOYED THE BENEFITS OF THE RATE
CONCESSIONS MADE BY THE TRANSPORTATION ACT  ..."  57 F.SUPP.  984,
987.  THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
REVERSED, HOLDING, AS RESPONDENT URGES IN THIS COURT, THAT THE 1940 ACT
DID NOT APPLY TO THE TYPE OF CLAIMS INVOLVED HERE.  80 U.S. APP. D.C.
360, 153 F.2D 305.  IMPORTANCE OF THE QUESTION DECIDED CAUSED US TO
GRANT CERTIORARI. 

WE AGREE WITH THE DISTRICT COURT.  WE THINK, AS IT HELD, THAT THE
SECRETARY OF THE INTERIOR'S CONSTRUCTION OF THE 1940 ACT WAS CLEARLY
RIGHT.  THEREFORE, WE DO NOT DISCUSS THE GOVERNMENT'S CONTENTION THAT,
SINCE THE SECRETARY'S CONSTRUCTION WAS A REASONABLE ONE, IT WAS AN
ALLOWABLE EXERCISE OF HIS DISCRETION WHICH SHOULD NOT BE SET ASIDE BY
INJUNCTION OR RELIEF IN THE NATURE OF MANDAMUS.  SEE SANTA FE P.R.R. V.
WORK, 267 U.S. 511, 517; CF. SANTA FE P.R.R. V. LANE, 244 U.S. 492. 

THE RESPONDENT ARGUES THE CASE HERE AS THOUGH THE 1940 ACT APPLIED
ONLY TO CLAIMS FOR "LANDS UNDER ANY GRANT."  THE LANGUAGE IS NOT SO
NARROW.  IT ALSO REQUIRED RAILROADS TO SURRENDER CLAIMS FOR
"COMPENSATION, OR REIMBURSEMENT ON ACCOUNT OF LANDS OR INTERESTS IN
LANDS WHICH HAVE BEEN GRANTED, CLAIMED TO HAVE BEEN GRANTED, OR WHICH
IT IS CLAIMED SHOULD HAVE BEEN GRANTED  ...  UNDER ANY GRANT."  THIS
LANGUAGE IN ITSELF INDICATES A PURPOSE OF ITS DRAFTSMEN TO UTILIZE
EVERY TERM WHICH COULD POSSIBLY BE CONCEIVED TO GIVE THE REQUIRED
RELEASE A SCOPE SO BROAD THAT IT WOULD PUT AN END TO FUTURE
CONTROVERSIES, ADMINISTRATIVE DIFFICULTIES, AND CLAIMS GROWING OUT OF
LAND GRANTS.  BEYOND A DOUBT, THE WORDS "COMPENSATION" AND
"REIMBURSEMENT" AS ORDINARILY UNDERSTOOD WOULD DESCRIBE A PAYMENT TO
RAILROADS IN MONEY OR IN KIND FOR THE SURRENDER OF LANDS PREVIOUSLY
ACQUIRED BY THEM "UNDER A GRANT."  FN11  IF THEY DO NOT HAVE THIS
MEANING, THEIR USE IN THE ACT WOULD HAVE BEEN HARDLY MORE THAN
SURPLUSAGE.  AND WHEN VIEWED IN THE CONTEXT OF THE HISTORICAL
CONTROVERSIES AND CLAIMS UNDER THE LAND GRANTS, THE CONCLUSION THAT THE
1940 ACT COVERS CLAIMS SUCH AS RESPONDENT'S SEEMS INESCAPABLE. 

THE LEGISLATIVE HISTORY OF THE ACT SHOWS THAT CONGRESS WAS FAMILIAR
WITH THESE CONTROVERSIES.  IN 1929 IT PASSED AN ACT INTENDED TO
AUTHORIZE AND REQUIRE JUDICIAL DETERMINATION OF LAND-GRANT CLAIMS OF
THE NORTHERN PACIFIC RAILROAD IN ORDER FINALLY AND COMPLETELY TO SET
THEM AT REST.  46 STAT. 41.  THE SUIT AUTHORIZED BY THAT ACT WAS TRIED
IN A FEDERAL DISTRICT COURT AND WAS PENDING IN THIS COURT WHEN THE 1940
ACT WAS PASSED.  UNITED STATES V. NORTHERN PAC. RY., 311 U.S. 317.  OUR
DECISION IN IT SHOWS THE COMPLEXITY AND RAMIFICATIONS OF THE NUMEROUS
QUESTIONS INVOLVED IN LAND-GRANT CONTROVERSIES.  REFERENCE TO THIS CASE
WAS MADE BY GOVERNMENT OFFICIALS IN URGING CONGRESS TO INCLUDE IN THE
PREDECESSORS OF THE 1940 ACT A REQUIREMENT THAT THE RAILROAD SURRENDER
ALL CLAIMS ARISING OUT OF LAND GRANTS AS A PREREQUISITE TO ANY
GOVERNMENT RATE CONCESSIONS.  FN12 HERE, AS IN THE 1929 ACT, WHICH
APPLIED TO THE CLAIMS OF ONLY ONE RAILROAD, WE THINK CONGRESS INTENDED
TO BAR ANY FUTURE CLAIMS BY ALL ACCEPTING RAILROADS WHICH AROSE OUT OF
ANY OR ALL OF THE LAND-GRANT ACTS, INSOFAR AS THOSE CLAIMS AROSE FROM
ORIGINALLY GRANTED, INDEMNITY OR LIEU LANDS.  ALL THE ACTS HERE
INVOLVED, THE ACTS OF 1866, 1874, 1904 AND 1940, RELATE TO A CONTINUOUS
STREAM OF INTERRELATED TRANSACTIONS AND CONTROVERSIES, ALL BASICALLY
STEMMING FROM ONE THING - THE LAND GRANTS.  WE THINK CONGRESS WROTE
FINIS TO ALL THESE CLAIMS FOR ALL RAILROADS WHICH ACCEPTED THE ACT BY
EXECUTING RELEASES.  REVERSED. 

FN1  FOR AN ACCOUNT SEE PUBLIC AIDS TO TRANSPORTATION, SECTION OF
RESEARCH, FEDERAL COORDINATOR OF TRANSPORTATION (1940) I, 45-46;
HIBBARD, LAND GRANTS, ENCYC.  SOC.  SCIENCES (1935) IX, 32-35. 

FN2  HIBBARD, LAND GRANTS, SUPRA, 35.  OTHER SOURCES PUT THE FIGURE
OF FEDERAL GRANTS-IN-AID AT 134,303,668 ACRES, EQUIVALENT TO 209,849
SQUARE MILES OR 6.93 PER CENT OF THE AREA OF THE CONTINENTAL UNITED
STATES.  SEVENTY RAILROADS RECEIVED THESE GRANTS.  PUBLIC AIDS TO
TRANSPORTATION, OP. CIT. SUPRA, N. 1, 12, 13.  SEE ALSO GREAT NORTHERN
RY. CO. V. UNITED STATES, 315 U.S. 262, 273. 

FN3  SEE PUBLIC AIDS TO TRANSPORTATION, OP. CIT. SUPRA, N. 1, II, 5
56, GATES, LAND GRANTS TO RAILWAYS, DICTIONARY OF AMER.  HIST.  (1940)
III, 237.  SEE ALSO CASES COLLECTED 43 U.S.C.A. SECS. 888, 890, 893,
894, 900, 904; 43 F.C.A. SECS. 888, 890, 893, 894, 900, 904. 

FN4  SEE LAKE SUPERIOR & M.R.R. V. UNITED STATES, 93 U.S. 442;
ATCHISON, T. & S.F.R. CO. V. UNITED STATES, 15 CT. CL. 126, 148.  CF.
18 STAT. 72, 74; 18 STAT. 452, 453-454; 20 STAT. 377, 390; 27 STAT.
174, 180. 

FN5  SEE COMMITTEE OF THREE:  REPORT OF MARCH 24, 1938, H. DOC. NO.
583, 75TH CONG., 3D SESS., 32; COMMITTEE OF SIX:  REPORT OF DECEMBER
23, 1938, IN HEARINGS, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE ON H.R. 2531, 76TH CONG., 1ST SESS., II, 260. 

FN6  H.R. 10620, 75TH CONG., 3D SESS.; S. 3876, 75TH CONG., 3D SESS.;
S. 1915 AND S. 1990, 76TH CONG., 1ST SESS. 

FN7  54 STAT. 954, 49 U.S.C. SEC. 65. 

FN8  SECTION 321(B) PROVIDES THAT 

"IF ANY CARRIER BY RAILROAD  ...  OR ANY PREDECESSOR IN INTEREST,
SHALL HAVE RECEIVED A GRANT OF LANDS FROM THE UNITED STATES TO AID IN
THE CONSTRUCTION OF ANY PART OF THE RAILROAD OPERATED BY IT, THE
PROVISIONS OF LAW WITH RESPECT TO (REDUCED RATE) COMPENSATION FOR SUCH
A TRANSPORTATION SHALL CONTINUE TO APPLY TO SUCH TRANSPORTATION AS
THOUGH SUBSECTION (A) OF THIS SECTION HAD NOT BEEN ENACTED UNTIL SUCH
CARRIER SHALL FILE WITH THE SECRETARY OF THE INTERIOR, IN THE FORM AND
MANNER PRESCRIBED BY HIM, A RELEASE OF ANY CLAIM IT MAY HAVE AGAINST
THE UNITED STATES TO LANDS, INTERESTS IN LANDS, COMPENSATION, OR
REIMBURSEMENT ON ACCOUNT OF LANDS OR INTERESTS IN LANDS WHICH HAVE BEEN
GRANTED, CLAIMED TO HAVE BEEN GRANTED, OR WHICH IT IS CLAIMED SHOULD
HAVE BEEN GRANTED TO SUCH CARRIER OR ANY SUCH PREDECESSOR IN INTEREST
UNDER ANY GRANT TO SUCH CARRIER OR SUCH PREDECESSOR IN INTEREST AS
AFORESAID.  SUCH RELEASE MUST BE FILED WITHIN ONE YEAR FROM THE DATE OF
THE ENACTMENT OF THIS ACT.  NOTHING IN THIS SECTION SHALL BE CONSTRUED
AS REQUIRING ANY SUCH CARRIER TO RECONVEY TO THE UNITED STATES LANDS
WHICH HAVE BEEN HERETOFORE PATENTED OR CERTIFIED TO IT, OR TO PREVENT
THE ISSUANCE OF PATENTS CONFIRMING THE TITLE TO SUCH LANDS AS THE
SECRETARY OF THE INTERIOR SHALL FIND HAVE BEEN HERETOFORE SOLD BY ANY
SUCH CARRIER TO AN INNOCENT PURCHASER FOR VALUE OR AS PREVENTING THE
ISSUANCE OF PATENTS TO LANDS LISTED OR SELECTED BY SUCH CARRIER, WHICH
LISTING OR SELECTION HAS HERETOFORE BEEN FULLY AND FINALLY APPROVED BY
THE SECRETARY OF THE INTERIOR TO THE EXTENT THAT THE ISSUANCE OF SUCH
PATENTS MAY BE AUTHORIZED BY LAW."    FN9  "SANTA FE PACIFIC RAILROAD
COMPANY, A CORPORATION ORGANIZED AND EXISTING BY VIRTUE OF AN ACT OF
CONGRESS APPROVED MARCH 3, 1897(29 STAT. 622), WITH OFFICE AND
PRINCIPAL PLACE OF BUSINESS AT NEW YORK, IN THE STATE OF NEW YORK,
HEREBY, IN ACCORDANCE WITH SECTION 321 OF PART II OF TITLE III OF THE
TRANSPORTATION ACT OF 1940, AND THE RULES AND REGULATIONS ISSUED
THEREUNDER BY THE SECRETARY OF THE INTERIOR, RELINQUISHES, REMISES AND
QUITCLAIMS TO THE UNITED STATES OF AMERICA ANY AND ALL CLAIMS OF
WHATEVER DESCRIPTION TO LANDS, INTERESTS THEREIN, COMPENSATION OR
REIMBURSEMENT THEREFOR ON ACCOUNT OF LANDS OR INTERESTS GRANTED,
CLAIMED TO HAVE BEEN GRANTED, OR CLAIMED SHOULD HAVE BEEN GRANTED BY
ANY ACT OF THE CONGRESS TO SANTA FE PACIFIC RAILROAD COMPANY OR TO ANY
PREDECESSOR IN INTEREST IN AID OF THE CONSTRUCTION OF ANY PORTION OF
ITS RAILROAD. 

"THIS RELEASE DOES NOT EMBRACE THE RIGHTS OF WAY OR STATION GROUNDS
OF THIS COMPANY, LANDS SOLD BY THE COMPANY TO INNOCENT PURCHASERS FOR
VALUE PRIOR TO SEPTEMBER 18, 1940, LANDS EMBRACED IN SELECTIONS MADE BY
THE COMPANY AND APPROVED BY THE SECRETARY OF THE INTERIOR PRIOR TO
SEPTEMBER 18, 1940, OR LANDS WHICH HAVE BEEN PATENTED OR CERTIFIED TO
THE COMPANY OR ANY PREDECESSOR IN INTEREST IN AID OF THE CONSTRUCTION
OF ITS RAILROAD." 

FN10  CF. NOTE 4, SUPRA. 

FN11  SEE UNITED STATES V. NORTHERN P. RY., 311 U.S. 317, 332, 335,
353, 354. 

FN12  SEE HEARINGS, SUBCOMMITTEE OF THE SENATE COMMITTEE ON
INTERSTATE COMMERCE, S. 1915, 1990 AND 2294, 76TH CONG., 1ST SESS., 65,
66; SEE ALSO IBID., 59, 164. 
..END :





















ALBRECHT V. UNITED STATES, 329 U.S. 599 


ARGUED JANUARY 8, 1947.  - DECIDED FEBRUARY 3, 1947.  - 155 F.2D 73, 77,
AFFIRMED. 


CONTRACTS FOR THE PURCHASE OF LANDS BY THE GOVERNMENT STIPULATED THE
PURCHASE PRICE, GRANTED THE RIGHT OF IMMEDIATE POSSESSION, BUT
CONTAINED NO PROVISION FOR INTEREST.  THE GOVERNMENT SUBSEQUENTLY
INSTITUTED CONDEMNATION PROCEEDINGS, FILED A DECLARATION OF TAKING, AND
DEPOSITED IN COURT SUMS SUBSTANTIALLY LESS THAN THE CONTRACT PRICES. 
THE LANDOWNERS ASSERTED THEIR CONTRACT RIGHTS.  THE VALIDITY OF THE
CONTRACTS HAVING THEREAFTER BEEN JUDICIALLY ESTABLISHED, THE GOVERNMENT
PAID INTO COURT THE FULL CONTRACT PRICE.  HELD: 

1.  THE GOVERNMENT IS NOT OBLIGATED IN THESE CIRCUMSTANCES TO PAY
INTEREST, SINCE THE COMPENSATION OF THE LANDOWNERS IS CONTROLLED BY THE
CONTRACTS, WHICH CONTAINED NO PROVISION FOR INTEREST, RATHER THAN BY
THE FIFTH AMENDMENT.  PP. 600, 602. 

2.  THE LANDOWNERS HAVING RELIED UPON THE PURCHASE-PRICE PROVISIONS
OF THEIR CONTRACTS, THE INTEREST PROVISIONS OF THE DECLARATION OF
TAKING ACT ARE INAPPLICABLE.  P. 604. 

ALBRECHT ET AL. V. UNITED STATES. 

NO. 148.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT* . 

*TOGETHER WITH NO. 149, LINNENBRINGER V. UNITED STATES; NO. 150,
PITMAN ET AL. V. UNITED STATES; NO. 151, OLIVER, EXECUTOR, ET AL. V.
UNITED STATES; AND NO. 155, Q.W.S.S. REALTY & INVESTMENT CO. V. UNITED
STATES, ALSO ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
EIGHTH CIRCUIT. 

IN CONDEMNATION PROCEEDINGS INSTITUTED BY THE GOVERNMENT, THE
LANDOWNERS, PETITIONERS HERE, RELIED UPON THE PURCHASE-PRICE PROVISIONS
OF EARLIER CONTRACTS AND IN ADDITION CLAIMED INTEREST.  IN NO. 151, THE
DISTRICT COURT, ON THE QUESTION OF INTEREST, HELD FOR THE GOVERNMENT. 
60 F.SUPP.  741.  IN THE OTHER CASES, THE DISTRICT COURT HELD FOR THE
LANDOWNERS.  61 F.SUPP.  199.  THE CIRCUIT COURT OF APPEALS HELD FOR
THE GOVERNMENT.  155 F.2D 73, 77.  THIS COURT GRANTED CERTIORARI.  329
U.S. 694.  AFFIRMED, P. 606. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER THE GOVERNMENT IS OBLIGATED TO PAY
INTEREST IN CONNECTION WITH THE FOLLOWING LAND-PURCHASE ARRANGEMENTS
AND CONDEMNATION PROCEEDINGS.  THE GOVERNMENT MADE SEPARATE CONTRACTS
WITH THE PETITIONERS TO BUY CERTAIN LANDS FROM THEM TO BE USED FOR A
PUBLIC PURPOSE.  THE CONTRACTS STIPULATED A PURCHASE PRICE TO BE PAID
AT AN INDEFINITE FUTURE TIME WHEN CERTAIN CONDITIONS HAD BEEN
FULFILLED.  FN1  THEY ALSO GRANTED THE GOVERNMENT THE RIGHT TO
IMMEDIATE POSSESSION.  LATER THE GOVERNMENT QUESTIONED THE VALIDITY OF
THE CONTRACTS AND ATTEMPTED TO RESCIND THEM ON THE GROUND THAT BY
REASON OF FRAUD AND OTHER THINGS THE CONTRACT PRICES WERE GROSSLY
EXCESSIVE AND REPRESENTED FAR MORE THAN THE "JUST COMPENSATION"
REQUIRED BY THE FIFTH AMENDMENT.  IT FILED CONDEMNATION PROCEEDINGS IN
DISTRICT COURTS UNDER 40 STAT. 241, AS AMENDED, 50 U.S.C. SEC. 171,
ASKING THE COURTS TO FIX "JUST COMPENSATION" AFTER HEARING EVIDENCE ON
THAT SUBJECT.  IT ALSO FILED A DECLARATION OF TAKING UNDER 46 STAT.
1421, 40 U.S.C. SEC. 258A, AT THE SAME TIME DEPOSITING IN THE COURTS
SUMS OF MONEY, SUBSTANTIALLY LESS THAN THE CONTRACT PRICES, WHICH IT
ESTIMATED TO BE THE TRUE "JUST COMPENSATION" FOR THE PROPERTY TAKEN. 
THE COURTS THEN ENTERED ORDERS DIVESTING THE PROPERTY OWNERS OF ALL
TITLE AND VESTING IT IN THE GOVERNMENT.  A COMPANION CASE IN WHICH A
DISTRICT COURT HELD AN IDENTICAL CONTRACT VALID WAS APPEALED AND
EVENTUALLY REACHED THIS COURT.  PRIOR TO AND PENDING THIS APPEAL THESE
PETITIONERS VIGOROUSLY ASSERTED THE VALIDITY OF THE TERMS OF THE
CONTRACTS WHICH FIXED THE AGREED PRICES FOR TRANSFER OF POSSESSION AND
TITLE TO THEIR PROPERTIES.  SEVERAL YEARS LATER THIS COURT UPHELD THE
VALIDITY OF THE IDENTICAL CONTRACT IN THE COMPANION CASE.  FN2
THEREUPON THE GOVERNMENT, COMPLYING WITH THAT DECISION, PAID THE FULL
CONTRACT PURCHASE PRICES INTO THE DISTRICT COURTS.  IT PRAYED THAT THE
LANDOWNERS' COMPENSATION BE FIXED AS THE CONTRACT PRICE WITHOUT
INTEREST.  PETITIONERS ASSERTED THAT THEY HAD A RIGHT TO INTEREST FROM
THE TIME OF THE "TAKING," GUARANTEED BY THE FIFTH AMENDMENT'S PROVISION
FOR "JUST COMPENSATION."  THE GOVERNMENT CONTENDED THAT THE "JUST
COMPENSATION" PROVISION WAS NOT APPLICABLE, AND THAT PETITIONERS HAD NO
RIGHT TO INTEREST BECAUSE THEIR PURCHASE CONTRACTS DID NOT PROVIDE FOR
IT.  ONE DISTRICT COURT DECIDED THIS QUESTION IN FAVOR OF THE
GOVERNMENT, 60 F.SUPP.  741, BUT TWO DECIDED AGAINST IT.  61 F.SUPP. 
199.  FN3  THE CIRCUIT COURT OF APPEALS HELD FOR THE GOVERNMENT.  155
F.2D 73, 77.  IN A CASE INVOLVING SOMEWHAT SIMILAR FACTS, UNITED STATES
V. BAUGH, 149 F.2D 190, THE CIRCUIT COURT OF APPEALS FOR THE FIFTH
CIRCUIT HAD DECIDED AGAINST THE GOVERNMENT.  BECAUSE OF THE APPARENT
CONFLICT PRESENTED AND BECAUSE THE QUESTION IS OF WIDESPREAD
IMPORTANCE, WE GRANTED CERTIORARI.  THE FACTS AND ISSUES, SO FAR AS WE
DEEM THEM RELEVANT TO DISPOSITION OF ALL THE CASES, ARE IDENTICAL, AND
SO WE CONSIDER ALL OF THEM TOGETHER. 

WE AGREE WITH THE CIRCUIT COURT OF APPEALS THAT THE GOVERNMENT IS NOT
OBLIGATED TO PAY INTEREST IN THESE CASES.  IT IS TRUE THAT IN CASES
SUBMITTED TO THEM FOR DETERMINATION OF "JUST COMPENSATION," COURTS HAVE
EVOLVED A RULE WHEREBY AN ELEMENT OF COMPENSATION DESIGNATED AS
INTEREST IS SOMETIMES ALLOWED.  UNDER THIS RULE, AND IN THE ABSENCE OF
AN AGREEMENT OF THE PARTIES FIXING COMPENSATION, COURTS FIRST FIX THE
FAIR MARKET VALUE OF PROPERTY AS OF THE TIME IT IS TAKEN.  THE PROPERTY
OWNER, AGAINST WHOM THERE IS NO COUNTERCLAIM, IS ALWAYS ENTITLED TO
PAYMENT OF THIS MUCH.  BUT WHERE PAYMENT OF THAT FAIR MARKET VALUE IS
DEFERRED, IT HAS BEEN HELD THAT SOMETHING MORE THAN FAIR MARKET VALUE
IS REQUIRED TO MAKE THE PROPERTY OWNER WHOLE, TO AFFORD HIM "JUST
COMPENSATION."  THIS ADDITIONAL ELEMENT OF COMPENSATION HAS BEEN
MEASURED IN TERMS OF REASONABLE INTEREST.  THUS, "JUST COMPENSATION" IN
THE CONSTITUTIONAL SENSE HAS BEEN HELD, ABSENT A SETTLEMENT BETWEEN THE
PARTIES, TO BE FAIR MARKET VALUE AT THE TIME OF TAKING PLUS "INTEREST"
FROM THAT DATE TO THE DATE OF PAYMENT.  FN4 

BUT THE METHOD USED BY COURTS TO DETERMINE "JUST COMPENSATION" IN AN
ADVERSARY PROCEEDING WHERE THE PARTIES HAVE FAILED PREVIOUSLY TO AGREE
ON ITS AMOUNT IS NOT THE EXCLUSIVE METHOD FOR DETERMINING THAT
QUESTION.  THE FIFTH AMENDMENT DOES NOT PROHIBIT LANDOWNERS AND THE
GOVERNMENT FROM AGREEING BETWEEN THEMSELVES AS TO WHAT IS JUST
COMPENSATION FOR PROPERTY TAKEN.  SEE DANFORTH V. UNITED STATES, 308
U.S. 271.  NOR DOES IT BAR THEM FROM EMBODYING THAT AGREEMENT IN A
CONTRACT, AS WAS DONE HERE.  AND CERTAINLY WHERE A PARTY TO SUCH A
CONTRACT STANDS UPON ITS TERMS TO ENFORCE THEM FOR HIS OWN ADVANTAGE,
HE CANNOT AT THE SAME TIME SUCCESSFULLY DISAVOW THOSE TERMS SO FAR AS
HE CONCEIVES THEM TO BE TO HIS DISADVANTAGE.  THAT IS PRECISELY THE
POSITION OF THE PETITIONERS HERE.  THEY MADE CONTRACTS FOR THE TRANSFER
AND POSSESSION OF LANDS AT PRICES CONCERNING WHICH THEY HAVE NEVER
COMPLAINED.  AT THE END OF PROLONGED LITIGATION, THE GOVERNMENT WAS
BARRED FROM SHOWING THAT COMPENSATIONS FIXED BY THE CONTRACTS WERE NOT
JUST, BUT WERE EXCESSIVE.  HAVING THUS BOUND THE GOVERNMENT TO THE
CONTRACT PRICES AS THE MEASURE OF "JUST COMPENSATION," WHICH PRICES, TO
SAY THE LEAST, GENEROUSLY MEET THE FIFTH AMENDMENT'S "JUST
COMPENSATION" REQUIREMENT, THEY NOW SEEK TO ESCAPE THE BURDENS OF THESE
IDENTICAL CONTRACT PROVISIONS.  THEY INVOKE THE FIFTH AMENDMENT IN
PURSUIT OF SOMETHING MORE THAN THE COMPENSATION FOR WHICH THEIR
CONTRACTS PROVIDE - CONTRACTS WHICH THEY ARE NOT WILLING TO ABANDON. 

THE ANSWER TO THEIR CONTENTION IS THAT IN THIS POSTURE OF THE CASES
THESE TRANSACTIONS HAVE PASSED OUT OF THE RANGE OF THE FIFTH
AMENDMENT.  FOR THE REASONING ON WHICH INTEREST IS ADDED TO VALUE AS A
PART OF "JUST COMPENSATION" IN COURT CONDEMNATION PROCEEDINGS IS NOT
APPLICABLE TO THIS SITUATION.  THAT REASONING IS THAT WHEN A COURT
DETERMINES JUST COMPENSATION, IT FIRST FIXES BARE VALUE AT THE TIME OF
THE TAKING AND ADDS A SUM TO COMPENSATE FOR DEFERRED PAYMENT OF BARE
VALUE SO AS TO MAKE THE PROPERTY OWNER WHOLE AS REQUIRED BY THE FIFTH
AMENDMENT.  WE DO NOT THINK THIS FORMULA FITS CONTRACTUAL ARRANGEMENTS
FOR COMPENSATION.  EXACTLY WHAT FACTORS THE PARTIES CONSIDER, IN
ADDITION TO BARE VALUE, CANNOT EASILY BE ASCERTAINED.  THIS VERY GROUP
OF TRANSACTIONS ILLUSTRATES THAT THERE MAY BE MANY SUCH ADDITIONAL
FACTORS.  FOR EXAMPLE, ALL THE CONTRACTS HERE PROVIDED FOR IMMEDIATE
GOVERNMENT POSSESSION, THOUGH NONE CONTEMPLATED IMMEDIATE PAYMENTS.  WE
CANNOT KNOW WHAT AMOUNTS WERE ADDED IN THE BARGAINS TO THE BARE MARKET
VALUES AS ESTIMATED, THOUGH UNARTICULATED, ALLOWANCES FOR THE
ANTICIPATED DELAYS IN PAYMENT.  AND OTHER FACTORS, WHICH NEED NOT BE
ENUMERATED, ENTERED INTO THE CONTRACT PRICES.  THESE THINGS DEMONSTRATE
THE INADVISABILITY OF APPLYING A CONSTITUTIONAL RULE AS TO INTEREST,
SPECIALLY DESIGNED TO ENABLE COURTS TO CALCULATE "JUST COMPENSATION,"
TO AN ENTIRELY DIFFERENT SITUATION IN WHICH PARTIES, SUPPOSEDLY WITH
DUE REGARD TO THEIR OWN INTERESTS, BARGAIN BETWEEN THEMSELVES AS TO
COMPENSATION.  SINCE THESE PETITIONERS HAVE CHOSEN TO STAND ON THEIR
CONTRACT TERMS AS TO THE AMOUNT THEY WILL RECEIVE FOR THEIR PROPERTY,
RATHER THAN TO HAVE "JUST COMPENSATION," IN THE CONSTITUTIONAL SENSE,
FIXED BY THE COURTS, WE MUST LOOK TO THOSE TERMS FOR THE MEASURE OF
THEIR COMPENSATION, INCLUDING THEIR RIGHT TO THAT PART OF COMPENSATION
WHICH COURTS HAVE CALLED INTEREST. 

WE HAVE NOT OVERLOOKED THE CONTENTION THAT THIS CONCLUSION IS IN
CONFLICT WITH OUR HOLDING IN DANFORTH V. UNITED STATES, 308 U.S. 271. 
WE DO NOT THINK IT IS.  THAT WAS ALSO A CASE IN WHICH A STATUTE
AUTHORIZED GOVERNMENT AGENTS TO PURCHASE PROPERTY, AND A PRICE HAD BEEN
AGREED ON PRIOR TO CONDEMNATION PROCEEDINGS.  BUT THE ASSERTED INTEREST
CLAIM WAS THERE DENIED.  THE DECISION IN THAT CASE REASSERTED THE
PRINCIPLE THAT INTEREST IN CONDEMNATION PROCEEDINGS DOES NOT BEGIN
UNTIL THERE HAS BEEN A TAKING.  AFTER NOTING THE SEVERAL INCIDENTS
ASSERTED TO CONSTITUTE A TAKING, WE HELD THAT THERE WAS NO INTERVAL
BETWEEN THE TAKING OF THE PROPERTY THERE AND PAYMENT FOR IT.  THUS THE
QUESTION WE HAVE CONSIDERED HERE WAS NEITHER DIRECTLY INVOLVED, RAISED,
NOR GIVEN SPECIAL CONSIDERATION.  A FURTHER INCIDENTAL DISTINCTION
BETWEEN THAT CASE AND THIS IS THAT IN THE DANFORTH CASE THE CONTRACT
DID NOT ANTICIPATE THAT THE TAKING WOULD PRECEDE PAYMENT. 

TURNING NOW TO THE RIGHT TO INTEREST UNDER THE CONTRACTS, AND APART
FROM THE CONTENTION REGARDING THE FIFTH AMENDMENT, WE FIND THAT THE
CONTRACTS HAVE NO PROVISION FOR PAYMENT OF INTEREST.  NO STATUTE
AUTHORIZES THE PAYMENT OF INTEREST IN CASES LIKE THIS.  IN THE ABSENCE
OF SPECIFIC CONTRACT OR STATUTORY PROVISIONS NO INTEREST RUNS AGAINST
THE GOVERNMENT EVEN THOUGH THE GOVERNMENT'S PAYMENT FOR THE CONTRACT
PURCHASES BE DELAYED.  SEE SMYTH V. UNITED STATES, 302 U.S. 329, 353;
UNITED STATES V. THAYER-WEST POINT HOTEL CO., 329 U.S. 585, 588; UNITED
STATES V. N.Y. RAYON IMPORTING CO., 329 U.S. 654, 659-660. 

THERE IS SOME ARGUMENT THAT INTEREST SHOULD BE ALLOWED BECAUSE THE
DECLARATION OF TAKING ACT, 46 STAT. 1421, 40 U.S.C. SEC. 258A, UNDER
WHICH CONDEMNATION PROCEEDINGS WERE FILED, AUTHORIZES PAYMENT OF
INTEREST FROM THE DATE PROPERTY IS TAKEN.  CF. UNITED STATES V. THAYER
WEST POINT HOTEL CO., SUPRA, P. 588.  THIS PROVISION, HOWEVER, IS NO
MORE THAN A STATUTORY EMBODIMENT OF THE RULE FOR DETERMINING
CONSTITUTIONAL "JUST COMPENSATION" IN THE ABSENCE OF A GOVERNING
CONTRACT, AND WHAT WE HAVE ALREADY SAID IS EQUALLY APPLICABLE TO THE
CLAIM FOR INTEREST UNDER THE STATUTE.  IT CONTAINS NO SPECIFIC
PROVISION FOR INTEREST ON GOVERNMENT CONTRACTS OF PURCHASE.  AND HERE,
WHILE THE LITIGATION WAS UNDER THE CONDEMNATION STATUTE, THE
PETITIONERS' RELIANCE ON THE PURCHASE PRICE PROVISIONS OF THE CONTRACTS
AS TO VALUE TOOK THESE CLAIMS FOR INTEREST OUTSIDE THE PURVIEW OF THE
INTEREST PROVISIONS OF THE DECLARATION OF TAKING ACT, AND LEFT THEM TO
BE GOVERNED BY THE INTEREST RULES WHICH WOULD HAVE APPLIED HAD SUIT
BEEN BROUGHT BY PETITIONERS TO ENFORCE THE CONTRACT TERMS.  PETITIONERS
WERE BARRED FROM RECEIVING INTEREST IN ANY PROCEEDING FOR THE REASON
THAT THEIR CONTRACTS CONTAINED NO PROMISE TO PAY INTEREST.  AFFIRMED. 

FN1  THE FIRST CONTRACT CONDITION AS TO PAYMENT WAS THAT IT SHOULD BE
MADE UPON CONVEYANCE OF A GOOD AND MERCHANTABLE TITLE.  THE SECOND WAS
THAT IF "FOR ANY REASON" THE ATTORNEY GENERAL DID NOT APPROVE THE
TITLE, THE GOVERNMENT COULD OBTAIN A GOOD TITLE BY CONDEMNATION
PROCEEDINGS IN AN APPROPRIATE DISTRICT COURT, IN WHICH EVENT THE AGREED
COMPENSATION WAS TO BE DEPOSITED IN COURT. 

FN2  MUSCHANY V. UNITED STATES, 324 U.S. 49. 

FN3  SOME OF THE PETITIONERS CLAIMED INTEREST FROM THE DATE THE
GOVERNMENT TOOK POSSESSION OF THE LANDS UNDER THE CONTRACT TO THE DATE
THE GOVERNMENT DEPOSITED THE FULL CONTRACT PRICE.  ONE PETITIONER
CLAIMED INTEREST ONLY FROM THE DATE OF THE FILING OF THE DECLARATION OF
TAKING ON THE DIFFERENCE ON THAT DATE BETWEEN THE SUM THE GOVERNMENT
DEPOSITED AS THE ESTIMATED "JUST COMPENSATION" AND THE FULL CONTRACT
PRICE FINALLY DEPOSITED.  INTEREST WAS AWARDED BY THE TWO DISTRICT
COURTS ON THIS LATTER THEORY ONLY FROM THE DATE OF THE DECLARATION OF
TAKING. 

FN4  SEABOARD AIR LINE V. UNITED STATES, 261 U.S. 299, 306; SHOSHONE
TRIBE V. UNITED STATES, 299 U.S. 476, 496, 497; JACOBS V. UNITED
STATES, 290 U.S. 13, 16-17; UNITED STATES V. KLAMATH INDIANS, 304 U.S.
119, 123. 

MR. JUSTICE REED AND MR. JUSTICE DOUGLAS, DISSENTING. 

"THE STIPULATION MERELY HAD THE EFFECT OF RELIEVING THE GOVERNMENT
FROM HAVING TO MAKE PROOF AS TO WHAT WAS JUST COMPENSATION AND OF
RUNNING THE RISK OF HAVING AN AMOUNT FIXED WHICH MIGHT BE
UNSATISFACTORY."  UNITED STATES V. BAUGH, 149 F.2D 190, 192.  THE
LANDOWNERS'"RIGHT TO HAVE INTEREST IS FOUND IN THE CONSTITUTION AND IS
NEITHER FOUND NOR LOST IN THE CONTRACT."  ID., P. 193.  THE JUSTNESS OF
THE CLAIM FOR INTEREST IN THESE CASES IS UNDERLINED BY THE FACT THAT
THE LAND WAS TAKEN OVER FOUR YEARS BEFORE FULL PAYMENT WAS MADE.  THE
UNITED STATES RENOUNCED THESE CONTRACTS AND RETAINED POSSESSION OF THE
PROPERTIES BY THE DECLARATION OF TAKING ACT, WHICH BY ITS TERMS, 46
STAT. 1421, 40 U.S.C. SEC. 258A, ENTITLED THE CONDEMNEE TO INTEREST ON
THE VALUE FROM THE DATE OF TAKING EXCEPT AS TO SUMS PAID INTO COURT. 
AFTER THE DECISION IN MUSCHANY V. UNITED STATES, 324 U.S. 49, THE
GOVERNMENT CARRIED OUT ITS CONDEMNATION SUITS AND OBTAINED TITLES TO
THESE PROPERTIES BY CONDEMNATION.    IN THESE CONDEMNATION ACTIONS THE
AGREED PRICE, STATED IN THE CONTRACTS, BECAME THE "JUST COMPENSATION"
OF THE DECLARATION OF TAKING ACT AND BY THAT ACT INTEREST WAS DUE FOR
SUCH AMOUNT AS HAD NOT BEEN DEPOSITED WITH THE TRIAL COURT WHEN THE
DECLARATION WAS FILED.  INTEREST FOR THE PERIOD BETWEEN THE DECLARATION
AND THE PAYMENT OF THE VALUE INTO THE TRIAL COURT SHOULD BE ALLOWED ON
THE AMOUNT BY WHICH THE SUM FIXED IN THE FINAL DECREE EXCEEDED THE SUM
DEPOSITED WITH THE DECLARATION OF TAKING. 
..END :




















INSURANCE GROUP V. D. & R.G.W.R. CO., 329 U.S. 607 


NO. 690.  ARGUED JANUARY 6, 1947.  - DECIDED FEBRUARY 3, 1947.  - ORDER
DENYING PETITION AFFIRMED. 


AFTER CONFIRMATION OF A PLAN FOR REORGANIZATION OF A RAILROAD UNDER
SEC. 77 OF THE BANKRUPTCY ACT HAD BEEN AFFIRMED BY THIS COURT, 328 U.S.
495, THE DEBTOR MOVED IN THE DISTRICT COURT FOR A RE-EXAMINATION OF THE
PLAN IN THE LIGHT OF CIRCUMSTANCES WHICH HAD CHANGED SINCE THE
INTERSTATE COMMERCE COMMISSION'S HEARINGS ON THE PLAN.  THE DEBTOR
SPECIFIED THREE CATEGORIES OF CHANGED CONDITIONS:  (A) THE DECLINE IN
MONEY RATES TO A LEVEL FAR BELOW THE RATES PREVAILING AT THE TIME OF
THE COMMISSION'S HEARINGS, (B) THE RECENT PURCHASE BY PRIVATE CAPITAL
FOR PRIVATE OPERATION OF A STEEL PLANT WHICH HAD BEEN CONSTRUCTED BY
THE GOVERNMENT DURING THE WAR IN THE AREA SERVED BY THE RAILROAD, AND
(C) A PERMANENT ELEVATION OF THE NATIONAL INCOME THROUGH INTENSIFIED
INDUSTRIAL ACTIVITY INVOLVING FOR THE INDEFINITE FUTURE A GREATLY
INCREASED DEMAND FOR RAILWAY TRANSPORTATION.  THE DEBTOR PRAYED THAT,
UPON RE-EXAMINATION, THE DISTRICT COURT SET ASIDE ITS ORDERS APPROVING
AND CONFIRMING THE PLAN AND REFER THE PROCEEDING BACK TO THE INTERSTATE
COMMERCE COMMISSION FOR THE FORMULATION OF A NEW PLAN.  HELD: 

1.  RE-EXAMINATION WOULD NOT BE JUSTIFIED IN THIS CASE; BECAUSE THE
DEBTOR HAS FAILED TO ALLEGE THE EXISTENCE, SINCE THIS COURT'S DECISION
AFFIRMING THE CONFIRMATION OF THE PLAN, OF CHANGED CONDITIONS OF A KIND
NOT ENVISAGED AND CONSIDERED BY THE COMMISSION IN ITS DELIBERATIONS
UPON OR EXPLANATIONS OF THE PLAN.  P. 611. 

2.  THIS COURT HAVING RULED IN ITS PRIOR DECISION THAT IN THIS
REORGANIZATION NO CHANGED CIRCUMSTANCES, UP TO THAT DATE, PRESENTED TO
IT BY THE DEBTOR OR OTHER RESPONDENTS IN THAT REVIEW JUSTIFIED A RE
EXAMINATION OF THE PLAN AS CONFIRMED, THAT RULING WAS BINDING ON THE
DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS AS TO CHANGED
CIRCUMSTANCES ARISING AFTER THE ORDER OF CONFIRMATION AND PRIOR TO THE
DECISION OF THIS COURT.  P. 612. 

3.  WHILE POWER RESTS IN A FEDERAL COURT THAT PASSES AN ORDER OR
DECISION TO CHANGE ITS POSITION ON A SUBSEQUENT REVIEW IN THE SAME
CAUSE, ORDERLY JUDICIAL ACTION, EXCEPT IN UNUSUAL CIRCUMSTANCES,
REQUIRES IT TO REFUSE TO PERMIT THE RELITIGATION OF MATTERS OR ISSUES
PREVIOUSLY DETERMINED ON A FORMER REVIEW.  P. 612. 

4.  THE CHANGED CONDITIONS RELIED UPON BY THE DEBTOR IN SUPPORT OF
ITS MOTION FOR RE-EXAMINATION OF THE PLAN HAVE BEEN CONSIDERED OR
ANTICIPATED HERETOFORE BY THE COMMISSION, THE DISTRICT COURT, THE
CIRCUIT COURT OF APPEALS AND THIS COURT.  PP. 613-617. 

5. UNTIL IT CAN BE CONTENDED WITH SOME SHOW OF REASONABLENESS THAT
CREDITORS SENIOR TO THE CREDITORS AND STOCKHOLDERS WHOM THE DEBTOR
REPRESENTS HERE HAVE RECEIVED MORE IN VALUE THAN THE FACE OF THEIR
CLAIMS, THE DEBTOR'S INSISTENCE ON A RE-EXAMINATION OF THE PLAN IS
WITHOUT SUBSTANTIAL SUPPORT.  P. 618. 

6.  WHILE ALLEGATIONS OF A PETITION FOR RE-EXAMINATION INTO A
CONFIRMED RAILROAD REORGANIZATION PLAN NEED NOT CONTAIN ALLEGATIONS OF
THE PRIMARY FACTS, THEY SHOULD ALLEGE ULTIMATE FACTS, SUCH AS SALES AND
VALUES OF SECURITIES OR IMPROVED EARNINGS, SUFFICIENT TO INDICATE THE
FACTUAL BASIS FOR A RE-EXAMINATION; AND SUCH FACTS HAVE NOT BEEN
ALLEGED HERE.  PP. 618-619. 

7.  TO OPEN A CONFIRMED PLAN OF RAILROAD REORGANIZATION, ASSUMING THE
POWER TO DO SO, ACCEPTED AFTER YEARS OF CONSIDERATION, REQUIRES A
SHOWING BY ALLEGATION OF INJUSTICE TO THE COMPLAINING DEBTOR OR JUNIOR
CREDITORS FAR STRONGER THAN ANY MADE HERE.  P. 619. 

8.  THE RECORD AFFIRMATIVELY SHOWS A PROPER BASIS FOR THE VALUATION
AND ALLOCATION OF SECURITIES BY THE COMMISSION AND FAILS TO SHOW ANY
SOUND BASIS FOR A RE-EXAMINATION ON ACCOUNT OF CHANGED CIRCUMSTANCES
BETWEEN THE DATE OF THE COMMISSION'S HEARINGS AND THE DATE OF THIS
COURT'S PRIOR DECISION.  P. 619. 

9.  AS TO THE PERIOD SINCE THIS COURT'S PRIOR DECISION, THERE IS NO
BASIS IN THE RECORD OR IN ANYTHING JUDICIALLY KNOWN TO THIS COURT FOR A
CONCLUSION THAT THERE HAS BEEN A SIGNIFICANT CHANGE IN INTEREST RATES,
EARNINGS AVAILABLE FOR INTEREST, OR TRAFFIC.  P. 620. 

10.  THE ACTION OF CONGRESS IN PASSING A BILL PERTAINING TO RAILROAD
REORGANIZATIONS, WHICH WAS VETOED BY THE PRESIDENT, DOES NOT REQUIRE A
STAY TO AWAIT FURTHER ENACTMENTS THAT MIGHT AFFECT THIS REORGANIZATION,
SINCE THIS COURT DOES NOT KNOW WHETHER ANY CHANGES WILL BE ENACTED AND
MUST CONTINUE TO ACT UNDER EXISTING LAW.  P. 620. 

11.  THE PUBLIC INTEREST IN WHAT PERSONS OR CORPORATIONS HOLD IN THE
FUTURE A CONTROLLING VOICE IN THE MANAGEMENT OF THIS RAILROAD HAS
ALREADY BEEN CONSIDERED AND PROTECTED BY THE COMMISSION.  P. 620. 

12.  NOTHING BEFORE OR SINCE THE CONFIRMATION OF THIS PLAN INDICATES
ANY DISREGARD BY THE COMMISSION OR THE COURTS OF THE INTERESTS OF
OPERATORS, STOCKHOLDERS, CREDITORS OR THE PUBLIC.  PP. 620-621. 

INSURANCE GROUP COMMITTEE ET AL. V. DENVER & RIO GRANDE WESTERN
RAILROAD CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

AFTER CONFIRMATION OF A PLAN FOR REORGANIZATION OF A RAILROAD UNDER
SEC. 77 OF THE BANKRUPTCY ACT HAD BEEN AFFIRMED BY THIS COURT, 328 U.S.
495(REHEARING DENIED, 329 U.S. 824), THE DEBTOR MOVED IN THE DISTRICT
COURT FOR A RE-EXAMINATION OF THE PLAN IN THE LIGHT OF CIRCUMSTANCES
WHICH HAD CHANGED SINCE THE INTERSTATE COMMERCE COMMISSION'S HEARINGS
ON THE PLAN (254 U.C.C. 6).  THE DISTRICT COURT DISMISSED THE
PETITION.  THE DEBTOR APPEALED TO THE CIRCUIT COURT OF APPEALS AND A
JUDGE OF THAT COURT ISSUED AN ORDER STAYING PROCEEDINGS IN THE DISTRICT
COURT TO CONSUMMATE THE PLAN.  UNDER JUDICIAL CODE SEC. 240(A) THIS
COURT GRANTED A WRIT OF CERTIORARI BEFORE JUDGMENT IN THE CIRCUIT COURT
OF APPEALS.  329 U.S. 708.  THE ORDER OF THE CIRCUIT JUDGE DIRECTING A
STAY OF THE CONSUMMATION OF THE PLAN IS VACATED AND THE ORDER OF THE
DISTRICT JUDGE DENYING THE PETITION IS AFFIRMED, P. 621. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

ON NOVEMBER 29, 1944, THE DISTRICT COURT FOR THE DISTRICT OF COLORADO
CONFIRMED A PLAN OF REORGANIZATION FOR THE DEBTOR, THE DENVER & RIO
GRANDE WESTERN RAILROAD CO., 62 F.SUPP.  384, NOTWITHSTANDING THE
REJECTION OF THE PLAN BY HOLDERS OF THE GENERAL MORTGAGE BONDS PURSUANT
TO SEC. 77(E).  UPON APPEAL THE CIRCUIT COURT OF APPEALS REVERSED THE
ORDER OF CONFIRMATION.  THIS COURT GRANTED CERTIORARI, REVERSED THE
CIRCUIT COURT AND AFFIRMED THE ORDER OF CONFIRMATION.  328 U.S. 495. 
THE DEBTOR CONSISTENTLY OPPOSED THE PLAN THROUGHOUT THOSE PROCEEDINGS. 
AFTER THE OPINION OF THIS COURT WAS FILED ON JUNE 10, 1946, THE DEBTOR
PETITIONED FOR A REHEARING, WHICH WAS DENIED OCTOBER 28, 1946.  AT
ABOUT THE SAME TIME AS THAT OF FILING ITS PETITION FOR REHEARING, IT
MOVED IN THE DISTRICT COURT (SEPTEMBER 17, 1946) FOR A RE-EXAMINATION
OF THE PLAN IN THE LIGHT OF CIRCUMSTANCES WHICH HAD CHANGED SINCE THE
INTERSTATE COMMERCE COMMISSION'S HEARINGS ON THE PLAN IN MAY, 1941. 
254 I.C.C. 5, 6.  THE DEBTOR SPECIFIED THREE CATEGORIES OF CHANGED
CONDITIONS:  "(A) THE DECLINE IN MONEY RATES TO A LEVEL FAR BELOW THE
RATES PREVAILING AT THESE DATES; (B) THE RECENT PUBLIC OFFERING BY THE
GOVERNMENT AND PURCHASE BY PRIVATE CAPITAL FOR PRIVATE OPERATION OF THE
STEEL PLANT AT GENEVA, NEAR PROVO, UTAH, WHICH HAD BEEN CONSTRUCTED BY
THE GOVERNMENT IN THE EXIGENCIES OF THE WAR AT A COST IN EXCESS OF
$200,000,000; (C) A PERMANENT ELEVATION OF THE NATIONAL INCOME THROUGH
INTENSIFIED INDUSTRIAL ACTIVITY INVOLVING FOR THE INDEFINITE FUTURE A
GREATLY INCREASED DEMAND FOR RAILWAY TRANSPORTATION." 

THE DEBTOR PRAYED THAT UPON RE-EXAMINATION THE DISTRICT COURT SET
ASIDE ITS ORDER OF OCTOBER 25, 1943, APPROVING THE PLAN, AND ITS ORDER
OF NOVEMBER 29, 1944, CONFIRMING THE PLAN, AND REFER THE PROCEEDING
BACK TO THE INTERSTATE COMMERCE COMMISSION FOR THE FORMULATION OF A NEW
PLAN.  AFTER A HEARING ON A MOTION TO DISMISS THE DEBTOR'S PETITION BUT
WITHOUT THE INTRODUCTION OF EVIDENCE, THE DISTRICT COURT DISMISSED THE
PETITION ON OCTOBER 30, 1946, ON THE GROUNDS THAT THE ORDER OF
CONFIRMATION DETERMINED THE RIGHTS OF PARTICIPATION AND THAT THE
DISTRICT COURT DID NOT NOW HAVE POWER TO REOPEN THE PROCEEDINGS.  THE
DISTRICT COURT ALSO HELD THAT THE PETITION FAILED TO STATE A CASE THAT
JUSTIFIED RECONSIDERATION.  THE DEBTOR FILED NOTICE OF APPEAL AND
REQUESTED A STAY OF EXECUTION OF THE PLAN ON THE SAME DAY; THE LATTER
MOTION WAS DENIED BY THE DISTRICT COURT AT THAT TIME.  THEREUPON THE
DEBTOR DOCKETED ITS APPEAL IN THE CIRCUIT COURT OF APPEALS AND APPLIED
FOR AN ORDER STAYING EXECUTION OF THE PLAN UNTIL THE APPEAL SHOULD BE
CONSIDERED.  THIS APPLICATION OF THE DEBTOR WAS GRANTED ON NOVEMBER 2,
1946, BY AN ORDER OF JUDGE PHILLIPS STAYING PROCEEDINGS IN THE DISTRICT
COURT TO CONSUMMATE THE PLAN.  A PETITION FOR CERTIORARI TO THE CIRCUIT
COURT WAS FILED IN THIS COURT UNDER JUDICIAL CODE SEC. 240(A) WHICH
ASKED THAT WE GRANT A WRIT OF CERTIORARI TO THE CIRCUIT COURT OF
APPEALS, BEFORE JUDGMENT, AND THAT THE ORDER OF THE DISTRICT COURT BE
AFFIRMED IN THIS COURT.  THE GROUNDS URGED WERE THAT THE ACTION OF THE
RESPONDENT WAS IN VIOLATION OF THE MANDATE OF THIS COURT ISSUED JUNE
10, 1946, AND THAT EVEN IF THE MANDATE HAD NOT BEEN VIOLATED THE DENIAL
OF THE PETITION TO REOPEN PROCEEDINGS ON THE PLAN WAS NOT APPEALABLE
BECAUSE THE PETITION FOR RE-EXAMINATION WAS IN REALITY A PETITION FOR
REHEARING.  FURTHER, PETITIONER URGED THAT THIS COURT TAKE AND DECIDE
THE WHOLE CASE BECAUSE THE CLAIM OF CHANGE OF CIRCUMSTANCES WAS
REPETITIOUS OF THE SAME CLAIM REJECTED BY THIS COURT IN ITS JUNE, 1946,
DECISION AND THAT NO ALLEGATIONS WERE MADE SUFFICIENT TO JUSTIFY A RE
EXAMINATION OF THE PLAN ON ACCOUNT OF CHANGES IN CIRCUMSTANCES SINCE
THE JUNE DECISION.  BECAUSE OF THE IMPORTANCE OF THE QUESTIONS RAISED
TO THE EFFICIENT ADMINISTRATION OF RAILROAD REORGANIZATIONS UNDER THE
BANKRUPTCY ACT, WE GRANTED CERTIORARI.  329 U.S. 708. 

WE MAY ASSUME, ARGUENDO, THAT BOTH THIS COURT UPON APPEAL FROM AN
ORDER OF CONFIRMATION IN BANKRUPTCY, AND THE BANKRUPTCY COURT ITSELF,
AFTER ITS ORDER OF CONFIRMATION HAS BEEN AFFIRMED ON REVIEW (11 U.S.C.
SEC. 205(F)), MAY TAKE COGNIZANCE OF SUBSEQUENT CHANGES IN CONDITIONS
AND ORDER A PLAN RE-EXAMINED BY THE INTERSTATE COMMERCE COMMISSION.  ON
THAT ASSUMPTION, WE ARE OF THE OPINION THAT THE DEBTOR HAS FAILED TO
ALLEGE THE EXISTENCE OF CHANGED CONDITIONS SINCE OUR DECISION OF JUNE
10, 1946, OF A KIND NOT "ENVISAGED AND CONSIDERED BY THE COMMISSION IN
ITS DELIBERATIONS UPON OR EXPLANATIONS OF THE PLAN."  RECONSTRUCTION
FINANCE CORP. V. DENVER & R.G.W.R. CO., 328 U.S. 495, 522.  WE DO NOT
THEREFORE THINK THAT RE-EXAMINATION WOULD BE JUSTIFIED IN THIS CASE. 

THE CONCLUSION IN THE FOREGOING PARAGRAPH REMOVES THE NECESSITY OF
CONSIDERING THE QUESTION WHETHER THE RESPONDENT DISREGARDED THE EFFECT
OF THE JUDGMENT OF THIS COURT OF JUNE 10, 1946, WHICH AFFIRMED THE
ORDERS OF APPROVAL AND CONFIRMATION OF THE PLAN.  LIKEWISE IT DISPOSES
OF ANY NECESSITY TO DETERMINE WHETHER THIS PETITION IN THE DISTRICT
COURT WAS IN REALITY A REQUEST FOR A REHEARING.  CF. UNITED STATES V.
SOCONY-VACUUM OIL CO., 310 U.S. 150, 247. 

UPON THE SAME ASSUMPTION EMPLOYED ABOVE, WE RULED IN OUR DECISION OF
JUNE 10, 1946, 328 U.S. 495, 534, THAT IN THIS REORGANIZATION NO
CHANGED CIRCUMSTANCES, UP TO THAT DATE, PRESENTED TO US BY THE DEBTOR
OR OTHER RESPONDENTS IN THAT REVIEW JUSTIFIED A RE-EXAMINATION OF THE
PLAN AS CONFIRMED.  THIS RULING WAS BINDING UPON THE DISTRICT COURT AND
THE CIRCUIT COURT OF APPEALS AS TO CHANGED CIRCUMSTANCES ARISING AFTER
THE ORDER OF CONFIRMATION AND PRIOR TO OUR DECISION.  WHEN MATTERS ARE
DECIDED BY AN APPELLATE COURT, ITS RULINGS, UNLESS REVERSED BY IT OR A
SUPERIOR COURT, BIND THE LOWER COURT.  THUS A CAUSE PROCEEDS TO FINAL
DETERMINATION.  WHILE POWER RESTS IN A FEDERAL COURT THAT PASSES AN
ORDER OR DECISION TO CHANGE ITS POSITION ON A SUBSEQUENT REVIEW IN THE
SAME CAUSE, ORDERLY JUDICIAL ACTION, EXCEPT IN UNUSUAL CIRCUMSTANCES,
REQUIRES IT TO REFUSE TO PERMIT THE RELITIGATION OF MATTERS OR ISSUES
PREVIOUSLY DETERMINED ON A FORMER REVIEW.  FN1 

THE DEBTOR'S BRIEF AND THE OPINION OF THE CIRCUIT COURT OF APPEALS ON
THE HEARING OF THE REVIEW OF THE ORDERS OF APPROVAL AND CONFIRMATION OF
THE PLAN MAKE CLEAR THAT CHANGED CIRCUMSTANCES IN THE PERIOD BETWEEN
THE INTERSTATE COMMERCE COMMISSION HEARINGS IN MAY, 1941, AND OUR
DECISION OF JUNE 10, 1946, OF A LIKE CHARACTER WITH THOSE NOW ALLEGED,
WERE RELIED UPON BY THE DEBTOR IN ITS FORMER EFFORT TO SET ASIDE THE
DISTRICT COURT'S ORDERS OF APPROVAL AND CONFIRMATION.  THE DEBTOR
ARGUED ON THE FORMER REVIEW, AS IT AGAIN ARGUES, THAT THE PLAN SHOULD
NOT BE CONFIRMED BECAUSE OF THE "RADICAL LOWERING FOR THE INDEFINITE
FUTURE OF MONEY RATES."  AND IT WAS EMPHASIZED AT THAT TIME THAT
CAPITALIZING ON THESE LOWER RATES WOULD PERMIT THE ISSUANCE OF A
GREATER VOLUME OF SECURITIES AGAINST EARNINGS OF THE DEBTOR, AND
CONSEQUENTLY A LARGER ALLOTMENT TO PRESENTLY DISSATISFIED CREDITORS. 
EVERY EXAMPLE OF RAILROAD REFINANCING, LISTED IN RESPONDENT'S PRESENT
BRIEF TO SUPPORT BY ILLUSTRATION THE ARGUMENT OF FALLING INTEREST
RATES, WAS LISTED IN THE BRIEF ON THE LAST REVIEW FOR THE SAME
PURPOSE.  THE PURPOSE WAS TO SET FORTH INSTANCES OF THE ISSUE OF
RAILROAD SECURITIES AT INTEREST RATES DEFINITELY LOWER THAN THOSE BORNE
BY THE DEBTOR'S ISSUES.  THE DEBTOR IN ITS BRIEF OF THAT TIME ALSO
ARGUED THE BENEFICIAL EFFECTS OF THE "PERMANENT ELEVATION OF NATIONAL
INCOME" UPON THE ANTICIPATED EARNINGS OF THE DEBTOR.  LASTLY, THE
DEBTOR THERE POINTED OUT THAT THE ESTABLISHMENT AND CONSTRUCTION OF THE
GREAT GENEVA STEEL PLANT WAS "CERTAIN TO BE REVOLUTIONARY IN ITS
CONTRIBUTION TO THE NEW EARNING POWER OF THE DEBTOR  ..."  ALTHOUGH IT
DID NOT THEN RELY, AS IT DOES NOW, UPON THE PURCHASE OF THAT
CORPORATION BY PRIVATE CAPITAL, THE ARGUMENT, THEN AS NOW, WAS THAT THE
PROSPECTIVE BUSINESS FROM A GREAT STEEL PLANT WAS A FACTOR INDICATING
HIGHER EARNINGS.  THE PLANT MAY OR MAY NOT TURN OUT TO BE STRATEGICALLY
LOCATED FOR PRIVATE LOW COST OPERATION AND DISTRIBUTION.  THE SHIFT OF
OWNERSHIP HAS ONLY MODERATE SIGNIFICANCE. 

IN SUM, THE VERY KINDS OF CHANGED CIRCUMSTANCES WHICH WERE ARGUED
HERE FORMERLY AS REASONS FOR NOT APPROVING AND CONFIRMING THE PLAN OF
REORGANIZATION WERE PRESENTED BY THE PETITION NOW UNDER REVIEW TO THE
DISTRICT COURT AS REASONS WHY THAT COURT SHOULD VACATE ITS ORDERS OF
APPROVAL AND CONFIRMATION, AND REMAND THE PLAN TO THE COMMISSION FOR
RECONSIDERATION.  THE DEBTOR ARGUES THAT IT ONLY URGED THIS COURT TO
TAKE JUDICIAL NOTICE OF THE EXISTENCE OF THESE CHANGED CIRCUMSTANCES,
AND THAT OUR REFUSAL TO DO SO SHOULD NOT BAR IT FROM PROVING THESE
CHANGES IN THE DISTRICT COURT.  OUR HOLDING WAS NOT BASED UPON A
CONCLUSION THAT THIS COURT COULD NOT TAKE JUDICIAL NOTICE OF CHANGES IN
ECONOMIC CONDITIONS SUBSEQUENT TO APPROVAL BY THE INTERSTATE COMMERCE
COMMISSION.  WE CONCLUDED THAT, EVEN IF WEIGHED, THE ALLEGED CHANGES
WERE NOT OF A KIND WHICH JUSTIFIED RE-EXAMINATION OF THE PLAN.  328
U.S. 495, 534. 

THE QUESTIONS OF INTEREST RATES AND INCREASED EARNINGS FROM THE
GENEVA STEEL PLANT WERE CONSIDERED BY THE COMMISSION AND THE DISTRICT
COURT BEFORE THE ORDER OF CONFIRMATION.  THE APPROVAL OF THE PLAN BY
THE COMMISSION ON JUNE 14, 1943, APPRAISED ECONOMIC CHANGES SUBSEQUENT
TO THE HEARINGS.  254 I.C.C. 349, 356, 358, 359. 

THE COMMISSION GAVE CONSIDERATION TO THE INTEREST RATES THE PROPOSED
SECURITIES SHOULD BEAR.  328 U.S. 495, 515, 516.  THERE WAS A FORECAST
OF AVAILABLE INCOME OF $6,215,423 FOR ANNUAL CHARGES IN A FUTURE NORMAL
YEAR.  IT WAS THOUGHT THAT THIS WOULD SUPPORT A CAPITALIZATION OF
$155,000,000 PLUS, EVEN THOUGH MORE THAN $35,000,000 OF THAT
REPRESENTED BY COMMON STOCK PARTICIPATED ONLY IN EARNINGS ABOVE THE
ESTIMATED NORMAL EXCEPT AS TO LONG-RANGE ADVANTAGES FROM CAPITAL
INVESTMENTS AND BOND SINKING-FUND PAYMENTS THAT HAD THE EFFECT OF
INCREASING THE VALUE OF THE COMMON STOCK EQUITIES.  254 I.C.C. 15,
356.  AS APPEARS FROM THE TABLES OF CAPITALIZATION, ANNUAL CHARGES AND
DISTRIBUTION OF SECURITIES, 328 U.S. 495, 502-503, THE INTEREST RATES
CHOSEN VARIED WITH THE TYPE OF SECURITY.  AS NONE OF THE AUTHORIZED
SECURITIES ARE ALLEGED BY THE DEBTOR TO HAVE SHOWN VALUES MUCH ABOVE
PAR, THE CHOSEN RATES OF RETURN HAVE NOT PROVEN TO BE EXCESSIVE.  SEE
NOTE 6, INFRA.  FROM THE VARIOUS RECOMMENDATIONS AS TO THE PROPER
INTEREST FOR THE NEW FIRST MORTGAGE BONDS, THE COMMISSION SELECTED
FINALLY A FIXED RATE OF THREE PER CENT AND A CONTINGENT RATE OF AN
ADDITIONAL ONE PER CENT.  FN2  233 I.C.C. 537, 542, 554-5; 254 I.C.C.
15, 387.  TO GUARD AGAINST A DRAIN UPON THE REORGANIZED RAILROAD IF
INTEREST RATES SHOULD FALL, A PROVISION APPEARS IN THE PLAN  FN3  FOR
REFUNDING THE AUTHORIZED FIRST MORTGAGE BONDS AT A MAXIMUM PREMIUM OF 5
PER CENT.  THIS GIVES PROTECTION TO THE REORGANIZED ROAD IF NOT TO THE
UNPAID CREDITORS AND EXCLUDED STOCKHOLDERS. 

MUCH THE SAME SITUATION EXISTS AS TO THE GENEVA STEEL PLANT.  A
DISCUSSION OCCURRED BEFORE THE DISTRICT COURT ON OCTOBER 23, 1942, IN
WHICH IT WAS RECOGNIZED THAT THE PLANT WOULD MAKE A SUBSTANTIAL
CONTRIBUTION TO THE TRAFFIC OF THE ROAD.  THIS WAS THE BASIS FOR
FURTHER CONSIDERATION BEFORE APPROVAL BY THE COMMISSION ON ITS
RECONSIDERATION OF THE PLAN, 254 I.C.C. 349, 356.  THE EFFECT OF THE
EXISTENCE OF THIS PLANT RECEIVED FURTHER CONSIDERATION IN THE CIRCUIT
COURT OF APPEALS, 150 F.2D 28, 34, 38, 43. 

AS WE INDICATED ABOVE, THE ALLEGED INCREASES IN THE NATIONAL INCOME
WERE BRIEFED AND DECIDED CONTRARY TO THE DEBTOR'S CONTENTION ON THE
FORMER REVIEW.  NOTHING WAS CALLED TO OUR ATTENTION IN THE FORMER
REVIEW TO INDICATE THAT AN INCREASED LEVEL OF ECONOMIC ACTIVITY ABOVE
THAT IN ACTUAL EXISTENCE WHEN THE ORDER OF CONFIRMATION WAS ISSUED HAD
OCCURRED BEYOND THAT ANTICIPATED BY THE COMMISSION.  FN4  EARNINGS
AVAILABLE FOR INTEREST DEPEND UPON COSTS AS WELL AS UPON REVENUE.  IT
MIGHT BE ADDED TO THIS COURT'S COMMENTS ON RAILROAD RATE INCREASES, 328
U.S. 495, 522, N. 29, THAT IN HANDING DOWN ITS ORDER OF DECEMBER 5,
1946, GRANTING CERTAIN INCREASES, THE INTERSTATE COMMERCE COMMISSION
CONSIDERED THE NECESSITY OF MEETING THE INCREASED COSTS.  FN5    THE
COMMISSION MADE NO FINDING THAT THE CASH VALUE OF THE SECURITIES
ALLOCATED TO THE SENIOR CREDITORS PAID THEM IN FULL.  TO JUSTIFY THE
CHANGE OF POSITION OF CREDITORS FROM FULLY SECURED TO PARTIALLY
SECURED, CREDITORS WERE GIVEN OPPORTUNITIES TO PARTICIPATE IN PROFITS
THROUGH COMMON STOCK OWNERSHIP WITH A CHANCE AT LARGER EARNINGS THAN
THE COMMISSION'S FORECAST ANTICIPATED.  WE HELD THE PRIORITY RULE WAS
SATISFIED BY THIS TYPE OF ALLOCATION.  THIS WAS EXPLAINED BY OUR
DECISION ON THE LAST REVIEW.  328 U.S. 495, 517-518.  THE DEBTOR HAS
MADE NO ALLEGATION, EITHER IN THIS EFFORT FOR RE-EXAMINATION OR BEFORE,
THAT THE EXISTING CASH VALUE OF THE SECURITIES ALLOTTED ANY CREDITOR
HAS EVER AGGREGATED THE AMOUNT OF THE CREDITOR'S CLAIM AGAINST THE
DEBTOR.  FN6  WE THINK THE ABSENCE OF SUCH AN ALLEGATION, OF ITSELF,
DEMONSTRATES THAT THE PLAN IS NOT, BECAUSE OF EXCESSIVE INTEREST,
UNFAIR TO THE DEBTOR OR THOSE FOR WHOM IT IS ALLOWED TO APPEAR. 

UNTIL IT CAN BE CONTENDED WITH SOME SHOW OF REASONABLENESS THAT THE
CREDITORS SENIOR TO THE CREDITORS AND STOCKHOLDERS WHOM THE DEBTOR
REPRESENTS HERE HAVE RECEIVED MORE IN VALUE THAN THE FACE OF THEIR
CLAIMS, THE DEBTOR'S INSISTENCE ON A RE-EXAMINATION OF THE PLAN IS
WITHOUT SUBSTANTIAL SUPPORT.  SEE NORTHERN PACIFIC RY. CO. V. BOYD, 228
U.S. 482; GROUP OF INVESTORS V. MILWAUKEE R. CO., 318 U.S. 523, 541. 

NOT ONLY DOES THE DEBTOR FAIL TO ALLEGE ANY ACTUAL SALES OR VALUES OF
THE SECURITIES WHICH WOULD SHOW THAT THE CREDITORS HAVE RECEIVED
THROUGH THE ALLOTTED SECURITIES PAYMENTS ON THEIR CLAIMS IN EXCESS OF
THEIR FACE, BUT THERE IS NO ALLEGATION OF A RADICALLY IMPROVED
SITUATION AS TO THIS RAILROAD'S EARNINGS AVAILABLE FOR INTEREST.  FN7
ALTHOUGH DISTORTIONS OF INCOME AVAILABLE FOR INTEREST FROM VARYING
CAUSES DO APPEAR IN THE REPORTS OF THE TRUSTEES, AVAILABLE INTEREST IS
AN IMPORTANT FIGURE AS A BASIS FOR THE CONSIDERATION OF
CAPITALIZATION.  TRAFFIC COMPARISONS ARE NOT SPECIFICALLY SET OUT.  FN8
WHILE THE ALLEGATIONS OF A PETITION FOR RE-EXAMINATION INTO A
CONFIRMED RAILROAD REORGANIZATION PLAN NEED NOT CONTAIN ALLEGATIONS OF
THE PRIMARY FACTS, THE ALLEGATIONS SHOULD ALLEGE ULTIMATE FACTS, SUCH
AS THOSE JUST REFERRED TO, SUFFICIENT TO INDICATE THE FACTUAL BASIS FOR
A RE-EXAMINATION.  THE ALLEGATIONS OF CHANGED CONDITIONS IN THIS
PETITION TO THE DISTRICT COURT DO NOT HAVE THE SPECIFICITY OF THOSE
WHICH CAUSED THIS COURT IN 1932 TO DIRECT AN INJUNCTION AGAINST A
COMMISSION ORDER OF 1930 THAT WAS BASED ON HEARINGS THAT ANTEDATED THE
DEPRESSION, BEGINNING IN 1929.  FN9  THE RULING IN THAT CASE HAS NOT
BEEN EXTENDED TO AUTHORIZE THE REOPENING OF HEARINGS BEFORE THE
COMMISSION BECAUSE OF ALLEGED CHANGES IN CONDITIONS.  FOR CASES OF THAT
TYPE, THIS COURT HAS POINTED OUT, THERE MUST BE A SHOWING OF
SUBSTANTIAL INJURY.  FN10  WE HAVE APPROVED A STATEMENT THAT THE
ATCHISON CASE RESTED UPON EXCEPTIONAL FACTS.  FN11 

TO OPEN A CONFIRMED PLAN OF RAILROAD REORGANIZATION, ASSUMING THE
POWER TO DO SO, ACCEPTED AFTER YEARS OF CONSIDERATION, REQUIRES A
SHOWING BY ALLEGATION OF INJUSTICE TO THE COMPLAINING DEBTOR OR JUNIOR
CREDITORS FAR STRONGER THAN ANY HERE MADE.  COMPARE PEWABIC MINING CO.
V. MASON, 145 U.S. 349, 356, 367; GROUP OF INVESTORS V. MILWAUKEE R.
CO., 318 U.S. 523, 543. 

MUCH OF WHAT WE HAVE WRITTEN IS DIRECTED AT THE SUGGESTION THAT THERE
SHOULD BE A PLENARY RE-EXAMINATION OF REORGANIZATION PROPOSALS FOR THE
DENVER & RIO GRANDE.  AS TO THAT SUGGESTION, WE ARE OF THE OPINION THAT
THE RECORD AFFIRMATIVELY SHOWS A PROPER BASIS FOR THE VALUATION AND
ALLOCATION OF SECURITIES BY THE COMMISSION, 328 U.S. 495, 502-503, AND
THAT THE RECORD FAILS TO SHOW ANY SOUND BASIS FOR A RE-EXAMINATION ON
ACCOUNT OF CHANGED CIRCUMSTANCES BETWEEN MAY, 1941, AND JUNE 10, 1946. 

SO FAR AS THE PERIOD SINCE JUNE 10, 1946, IS CONCERNED, THERE IS NO
BASIS IN THIS RECORD OR IN ANYTHING JUDICIALLY KNOWN TO US FOR A
CONCLUSION THAT THERE HAS BEEN A SIGNIFICANT CHANGE IN INTEREST RATES,
EARNINGS AVAILABLE FOR INTEREST OR TRAFFIC.  NOR DO WE SEE THAT THE
ACTION OF CONGRESS IN PASSING S. 1253, ON JULY 31, 1946, SHOULD
PERSUADE US TO REQUIRE A STAY TO AWAIT FURTHER ENACTMENTS THAT MIGHT
AFFECT THIS REORGANIZATION.  IT WAS VETOED.  PRESIDENT'S MEMORANDUM OF
DISAPPROVAL, AUGUST 13, 1946.  OUR UNDERSTANDING OF OUR DUTIES UNDER
THE RAILROAD REORGANIZATION ACT, IN THE FACE OF STRONG CRITICISM OF ITS
PROVISIONS, WAS EXPRESSED IN THE FORMER REVIEW OF THIS PLAN, 328 U.S.
495, 509, 510.  IT NEED NOT BE REPEATED.  WE MUST CONTINUE TO ACT UNDER
THE NOW EXISTING LAW.  WHETHER OR NOT CHANGES MAY BE MADE THAT WILL
EFFECT THIS REORGANIZATION, WE DO NOT KNOW.  IT IS QUITE UNDERSTANDABLE
TO US THAT STOCKHOLDERS STRIVE TO PRESERVE THE EQUITIES OF THEIR
INVESTMENTS AND THAT CREDITORS SHOULD FEEL, IN THIS CASE, THAT THEY
HAVE NOT RECOVERED THE VALUE OF THEIR INVESTMENT.  SUCH CONVICTIONS ARE
TO BE RESPECTED. 

THE SUGGESTION IS MADE THAT THERE IS A PUBLIC INTEREST IN WHAT
PERSONS OR CORPORATIONS HOLD IN THE FUTURE A CONTROLLING VOICE IN THE
MANAGEMENT OF THIS RAILROAD.  THIS MATTER HAD THE CONSIDERATION OF THE
COMMISSION, 254 I.C.C. AT 367 ET SEQ. THE PLAN ADOPTED CONTAINS A TEN
YEAR VOTING TRUST FOR THE NEW STOCK WITH COMMISSION-REGULATED
PROVISIONS FOR ITS SALE.  254 I.C.C. AT 400.  THE RECORD DOES NOT
PRESENT ANY GROUND FOR CONCLUDING THAT THE NEW OWNERS WILL BE ANY THE
LESS SOLICITOUS FOR THE PUBLIC WELFARE THAN THOSE WHO, AT PRESENT, HOLD
THE STOCK CERTIFICATES. 

HOWEVER, NOTHING BEFORE OR SINCE THE CONFIRMATION OF THIS PLAN
INDICATES ANY DISREGARD BY THE COMMISSION OR THE COURTS OF THE INTEREST
OF OPERATORS, STOCKHOLDERS, THE CREDITORS OR THE PUBLIC.  WHEN THE
INTERSTATE COMMERCE COMMISSION FINDS THE VALUE OF A RAILROAD SYSTEM BY
ANY MEANS, THE CORRECTNESS OF THE RESULT CANNOT BE MATHEMATICALLY
PROVED OR DISPROVED.  THE DIFFICULTIES OF APPRAISAL ARE MULTIPLIED BY
THE NECESSITY OF LOOKING INTO THE FUTURE TO ESTIMATE EARNINGS. 
EARNINGS ESTIMATES ARE MADE WITH ALLOWANCE FOR CHANGING ECONOMIC
CONDITIONS.  SO ARE INTEREST RATES.  ALL THIS IS RECOGNIZED BY
EVERYONE; BUT THE COMMISSION HAS FOUND NO BETTER WAY TO DETERMINE THE
ALLOCATION OF NEW SECURITIES AMONG THE VARIOUS CLASSES OF STOCKHOLDERS
OR OF CREDITORS OF A RAILROAD WITH THEIR DIFFERENT RIGHTS.  CF.
RECONSTRUCTION FINANCE CORP. V. DENVER & R.G.W.R. CO., 328 U.S. 495,
505-509. 

THE REORGANIZATION SHOULD BE CARRIED OUT.  THE ORDER OF THE CIRCUIT
JUDGE IN DIRECTING A STAY OF THE CONSUMMATION OF THE PLAN IS VACATED
AND THE ORDER OF THE DISTRICT JUDGE OF OCTOBER 30, 1946, DENYING THE
PETITION IS AFFIRMED. 

FN1  GREAT WESTERN TELEGRAPH CO. V. BURNHAM, 162 U.S. 339, 344; KING
V. WEST VIRGINIA, 216 U.S. 92, 101; MESSENGER V. ANDERSON, 225 U.S.
436, 444; WICHITA CO. V. CITY BANK, 306 U.S. 103, 106.  CF. CHAFFIN V.
TAYLOR, 116 U.S. 567, 572. 

FN2  THE EARNINGS CONTINGENCY WHICH AUTHORIZED THE PAYMENT OF THE
PRIOR CONTINGENT INTEREST, AS EXPRESSED IN TECHNICAL DETAIL AT 254
I.C.C. 393-94, WAS THE NET INCOME LESS CERTAIN FIXED CHARGES. 

FN3  254 I.C.C. 387. 

FN4  THE NATIONAL INCOME* AS REPORTED IN THE ANNUAL PUBLICATION OF
THE DEPARTMENT OF COMMERCE, THE SURVEY OF CURRENT BUSINESS, FOR THE
FOLLOWING YEARS WAS, IN BILLIONS: 

1940............ 77.6   1943............149.4 

1941............ 96.9   1944............160.7 

1942............122.2   1945............161.0 

THE NATIONAL INCOME AS COMPUTED BY THE DEPARTMENT OF COMMERCE IS
TENTATIVELY ESTIMATED AT 164.0 BILLIONS FOR 1946; FOR 1947, NO
STATEMENT OF AN EXPECTED INCREASE.  SEE THE ECONOMIC REPORT OF THE
PRESIDENT TO THE CONGRESS, OF JANUARY 8, 1947, H. DOC. NO. 49, 80TH
CONG., 1ST SESS., AS REQUIRED UNDER THE EMPLOYMENT ACT OF 1946, 60
STAT. 23. 

THE DOW-JONES AVERAGE OF THE TEN FIRST-GRADE RAILS WAS 117.25 ON JUNE
10, 1946, BUT HAD FALLEN TO 110.73 ON DECEMBER 30, 1946.  THE MARKET
BID FOR THE FIRST BONDS OF THE REORGANIZED DEBTOR, WHEN, AS, AND IF
ISSUED, WAS 101 ON JUNE 10, 1946, BUT HAD FALLEN TO 89 ON DECEMBER 30,
1946.  THESE LATTER FIGURES ARE FROM THE COMMERCIAL AND FINANCIAL
CHRONICLE, ISSUES OF JUNE 10 AND DECEMBER 30, 1946. 

*NATIONAL INCOME IS THE TOTAL NET INCOME EARNED IN PRODUCTION BY
INDIVIDUALS OR BUSINESSES. 

FN5  WHILE THE REPORTS OF THE COMMISSION DEAL WITH THE NATIONAL
RAILROAD SITUATION RATHER THAN WITH INDIVIDUAL ROADS, AN EXAMINATION OF
THEM DOES NOT INDICATE THAT THE COMMISSION INTENDED TO SUPPLY BY MEANS
OF THE INCREASE IN RATES A NET RAILWAY OPERATING INCOME SUFFICIENT TO
GIVE A RATE OF RETURN ON INVESTED CAPITAL SUBSTANTIALLY HIGHER THAN FOR
NORMAL PRE-WAR YEARS.  264 I.C.C. 695, 722, 728; I.C.C., EX PARTE NO.
162, DECEMBER 5, 1946, MIMEOGRAPHED REPORT, P. 7. 

SEE THE DISCUSSION OF INCREASED REVENUE AND COSTS, MIMEOGRAPHED
REPORT, SUPRA, PP. 3, 4, 5. 

FN6  AS FAR AS THEY ARE READILY AVAILABLE TO US, THE RANGES OF THE
REORGANIZED ROAD'S SECURITIES TRADED ON A WHEN, AS AND IF ISSUED BASIS
HAVE BEEN AS FOLLOWS:

                              1945            1946

                         HIGH   LOW      HIGH   LOW 

FIRST BONDS...............    103   82        102   89 

INCOME BONDS.............. 89 1/2  44 1/2     89   50 

PREFERRED STOCK...........                   75 1/2  37 

COMMON STOCK..............                   35 1/2  16 

BOND RANGES ARE FROM YEAR'S END EDITION OF MOODY'S BOND RECORD, VOL.
14, NO. 1, JANUARY 10, 1947; STOCK RANGES ARE FROM STANDARD & POOR'S
EARNINGS AND RATINGS STOCK GUIDE, YEAR'S END EDITION, JANUARY, 1947. 

THE HIGHEST MARKET BIDS ON THE SECURITIES SO FAR THIS YEAR ARE, SO
FAR AS THE FIGURES ARE AVAILABLE TO US: 

FIRST BONDS.....................89 

INCOME BONDS....................62 

PREFERRED STOCK.................50 

COMMON STOCK....................16 1/2 

FROM COMMERCIAL & FINANCIAL CHRONICLE, EDITIONS OF JANUARY 6, JANUARY
13, AND JANUARY 20, 1947. 

FN7  THE ANNUAL REPORTS OF THE TRUSTEES TO STOCKHOLDERS SHOW THE
INCOME AVAILABLE FOR INTEREST AS FOLLOWS: 

1942.............$17,044,420.39 

1943............. 11,573,667.94 

1944.............  8,157,880.25 

1945.............  1,503,289.07 DR.* 

IN 1946 THE INCOME AVAILABLE FOR ALL FIXED CHARGES AT THE END OF
ELEVEN MONTHS WAS $3,405,118.00. 

*THIS DEFICIT IS SHOWN AFTER DEDUCTING FROM GROSS EARNINGS A TAX
ACCRUAL FOR PRIOR YEARS OF $3,648,589.63(IN ADDITION TO THE TAX ACCRUAL
FOR THE YEAR 1945) AND $12,790,657.50 IN AMORTIZATION OF WAR
FACILITIES. 

FN8  REVENUE FREIGHT CARLOADING WEEKLY REPORT OF AMERICAN ASSOCIATION
OF RAILROADS SHOWS CAR LOADINGS FOR THE MONTH OF DECEMBER FOR THE YEARS
1941 TO 1946 AS FOLLOWS: 

1941................14,045    1944................15,308 

1942................16,915    1945................12,007 

1943................14,571    1946................13,517 

FN9  ATCHISON, TOPEKA & SANTA FE RAILWAY CO. V. UNITED STATES, 284
U.S. 248, 256. 

FN10  UNITED STATES V. NORTHERN PACIFIC RAILWAY CO., 288 U.S. 490,
494. 

FN11  INTERSTATE COMMERCE COMMISSION V. CITY OF JERSEY CITY, 322 U.S.
503, 515. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

FORMALLY, THIS IS A LITIGATION BETWEEN PRIVATE LITIGANTS, CREDITORS
QUARRELING OVER THEIR SHARE IN THE CAPITALIZATION OF A REORGANIZED
ENTERPRISE.  INTRINSICALLY, THE CASE CONCERNS ISSUES OF SERIOUS PUBLIC
IMPORTANCE.  CONTROL OF ONE OF THE MAJOR RAILROAD SYSTEMS OF THE
COUNTRY IS AT STAKE.  DISPOSITION OF THE CONTROVERSY BRINGS INTO PLAY
CONSIDERATIONS OF POLICY ON WHICH THE CONGRESS AND THE PRESIDENT HAVE
CLEARLY EXPRESSED THEMSELVES WITH RELEVANCE TO THE PROBLEM BEFORE THE
COURT. 

THE PECULIAR AND CONTROLLING PUBLIC ASPECT OF THE CASE IS EMPHASIZED
BY THE POSITION TAKEN BY THE GOVERNMENT.  THE GOVERNMENT FREQUENTLY
INTERVENES AS AMICUS CURIAE IN SO-CALLED PRIVATE LITIGATION TO PRESENT
THE DOMINANT PUBLIC ASPECTS OF SUCH LITIGATION.  IN THE EARLIER STAGES
OF THIS LITIGATION THE GOVERNMENT WAS IN FACT A PARTY OF RECORD. 
THROUGH ONE OF ITS AGENCIES, THE RECONSTRUCTION FINANCE CORPORATION,
THE GOVERNMENT IS ITSELF A CREDITOR.  WHEN THE PLAN FOR REORGANIZATION,
NOW ORDERED TO BE CARRIED OUT, WAS FOUND BY THE CIRCUIT COURT OF
APPEALS NOT "FAIR AND EQUITABLE," AND JUSTIFIABLY REJECTED BY THE
GENERAL BONDHOLDERS WHOSE CLAIMS CONSTITUTED ABOUT ONE-FOURTH OF THE
ENTIRE DEBT OF THE RAILROAD, THE GOVERNMENT HERE JOINED THE PRESENT
PETITIONERS IN URGING REVERSAL OF THAT DECISION AND APPROVAL OF THE
PLAN.  SEE 150 F.2D 28, AND 328 U.S. 495.  AFTER SUCH REVERSAL HERE,
THE CASE WENT BACK TO THE DISTRICT COURT AND THE PRESENT PROCEEDINGS
WERE BEGUN FOR RE-EXAMINATION OF THE PLAN.  THE DISTRICT COURT
DISMISSED THESE PROCEEDINGS, BUT AN ORDER BY THE CIRCUIT COURT OF
APPEALS STAYED THE EXECUTION OF THE PLAN UNTIL THE COURT HAD
OPPORTUNITY TO CONSIDER AN APPEAL DULY DOCKETED.  WHEN A PETITION FOR
CERTIORARI WAS FILED HERE TO LIFT THE CASE OUT OF THE CIRCUIT COURT OF
APPEALS BEFORE IT COULD BE HEARD, THE GOVERNMENT NO LONGER ASKED THIS
COURT TO APPROVE THE PLAN WHICH IT HAD SUPPORTED HERE LAST MARCH. 
INSTEAD, THE GOVERNMENT BOWED ITSELF OUT OF THE CASE.  WHAT HAS
HAPPENED TO MAKE THE GOVERNMENT ABSTAIN FROM STANDING ON THE DECISION
WHICH IT OBTAINED HERE LAST JUNE?  THAT WHICH HAS HAPPENED CONSTRAINS
ME TO THE VIEW THAT THE DENVER AND RIO GRANDE REORGANIZATION PLAN CALLS
FOR FURTHER SCRUTINY, AND SHOULD NOT, AS MATTERS NOW STAND, BE CARRIED
OUT. 

WHAT HAS HAPPENED SINCE THIS COURT RENDERED ITS DECISION LAST JUNE? 
THE GOVERNMENT, IN ITS MEMORANDUM OF ABSTENTION, STATES IT SUCCINCTLY
AND WITH CANDOR: 

"BECAUSE OF THE ACTION OF THE CONGRESS LAST SUMMER IN PASSING THE
BILL KNOWN AS S. 1253 AND THE REASONING OF THE PRESIDENT'S MEMORANDUM
OF DISAPPROVAL, DATED AUGUST 13, 1946, BOTH OF WHICH INDICATED
DISAPPROVAL OF CERTAIN FEATURES OF RAILROAD REORGANIZATIONS APPROVED
PURSUANT TO THE PROVISIONS OF SECTION 77 OF THE BANKRUPTCY ACT, WHICH
IS THE EXISTING LAW, THE RFC, AS AN AGENCY OF THE UNITED STATES CREATED
AND EXISTING BY VIRTUE OF CONGRESSIONAL ENACTMENT, IS NOT TAKING ANY
POSITION AS TO WHETHER THE PETITIONS SHOULD BE GRANTED."    THE
DECISIVE CHANGE IN RELEVANT CIRCUMSTANCES, WHICH THUS CAUSED A DECISIVE
CHANGE OF POSITION BY THE GOVERNMENT SINCE THE CASE WAS HERE
ORIGINALLY, IS THE ESSENTIAL BASIS FOR THE DEBTOR-RAILROAD'S
UNSUCCESSFUL EFFORT IN THE DISTRICT COURT TO SECURE RE-EXAMINATION OF
THE REORGANIZATION PLAN, AND WAS PRESUMABLY THE BASIS FOR THE ORDER OF
JUDGE PHILLIPS IN THE CIRCUIT COURT OF APPEALS STAYING PROCEEDINGS IN
THE DISTRICT COURT TO CONSUMMATE THE PLAN. 

THIS CONTROLLING CHANGE IN CIRCUMSTANCES IS DISMISSED BY THE COURT
WITH THE OBSERVATION THAT "THE ACTION OF CONGRESS IN PASSING S. 1253
...  WAS VETOED.  PRESIDENT'S MEMORANDUM OF DISAPPROVAL, AUGUST 13,
1946."  BUT THE DECISIVE CONSIDERATION IS NOT THAT THE PRESIDENT VETOED
THE BILL BUT WHY HE VETOED IT.  THE PRESIDENT LEFT NO DOUBT REGARDING
THE GROUNDS OF HIS VETO.  IN THE INTEREST OF AN ADEQUATE APPRECIATION
OF THEM THE FULL TEXT OF HIS MEMORANDUM IS MADE PART OF THIS OPINION
(APPENDIX I).  THE PRESIDENT DID NOT VETO THE BILL BECAUSE HE
DISAPPROVED ITS PURPOSES.  HE VETOED THE BILL BECAUSE IT WAS TOO WEAK,
IN SOME OF ITS PROVISIONS, FOR CARRYING OUT THOSE PURPOSES.  "BY
WITHHOLDING MY SIGNATURE TO THIS BILL," WROTE PRESIDENT TRUMAN, "I DO
NOT INTEND TO INDICATE THAT I FAVOR THE PENDING REORGANIZATION PLANS. 
I AM IN AGREEMENT WITH THOSE OBJECTIVES OF THE BILL WHICH PREVENT
UNDESIRABLE CONTROL OF THE RAILROADS, EITHER IMMEDIATELY OR WITHIN A
FEW YEARS, AND WHICH PREVENT FORFEITURES OF SECURITIES."  HE CONTINUED:
"I BELIEVE THAT THE NEXT CONGRESS CAN PASS A BILL WHICH WILL MEET THE
STATED OBJECTIONS AND WHICH WILL BE IN THE BEST INTERESTS OF THE
PUBLIC, THE RAILROADS, THE BONDHOLDERS AND OTHER CREDITORS, AND THE
STOCKHOLDERS."  THESE ARE NOT MERELY THE VIEWS OF THE PRESIDENT OF THE
UNITED STATES.  THEY ARE THE VIEWS OF A PRESIDENT WITH EXPERT KNOWLEDGE
OF THE SUBJECT, GAINED THROUGH YEARS OF ACTIVE PARTICIPATION IN THE
MOST ELABORATE INVESTIGATION OF RAILROAD REORGANIZATIONS EVER CONDUCTED
BY A CONGRESSIONAL COMMITTEE. 

THE PRESIDENT'S VETO STATEMENT ELICITED A PROMPT RESPONSE FROM
LEADERS OF THE CONFERENCE COMMITTEE OUT OF WHICH THE VETOED BILL CAME. 
THEY REPRESENTED BOTH HOUSES AND BOTH PARTIES.  THE STATEMENT DESERVES
QUOTATION IN FULL:

              "STATEMENT OF MEMBERS OF CONGRESS REGARDING

                          FURTHER LEGISLATION 

"THE RAILROAD REORGANIZATION BILL, S. 1253, WAS THE CULMINATION OF
OVER 3 YEARS OF INTENSIVE EFFORT TO SAVE $2,000,000,000 OF INVESTMENTS
MADE BY HUNDREDS OF THOUSANDS OF STOCKHOLDERS AND JUNIOR BONDHOLDERS IN
RAILROADS NOW IN PROCESS OF REORGANIZATION UNDER SECTION 77 OF THE
BANKRUPTCY ACT.  THOSE INVESTMENTS WILL BE WIPED OUT UNDER PENDING
PLANS OF REORGANIZATION UNLESS LEGISLATION IS ENACTED TO PREVENT IT.
THIS BILL WAS DESIGNED AND PASSED BY THE CONGRESS PRIMARILY FOR THAT
PURPOSE. 

"THOSE WHO HAVE SUPPORTED THIS LEGISLATION WILL BE DEFINITELY
HEARTENED BY THE DECLARATION OF PRINCIPLES CONTAINED IN THE PRESIDENT'S
MEMORANDUM STATING WHY HE WITHHELD HIS SIGNATURE FROM THE BILL.  FOR IT
IS CLEAR THAT THE BROAD PRINCIPLES ANNOUNCED BY THE PRESIDENT ARE
SHARED BY THE PROPONENTS AND SUPPORTERS OF THIS LEGISLATION. 
BROADENING OF THE BILL TO MEET THE REQUIREMENTS OF THE PRESIDENT'S
OBJECTIONS CAN AND WILL BE DRAFTED.  SUCH A BILL WILL BE PROMPTLY
INTRODUCED AT THE NEXT SESSION OF THE CONGRESS.  AS CONGRESS HAS
ALREADY OVERWHELMINGLY COMMITTED ITSELF TO SUCH LEGISLATION AND THE
PRESIDENT HAS DECLARED THAT HE, TOO, FAVORS ITS PURPOSES, THE PROMPT
ENACTMENT OF SUCH A MEASURE APPEARS CERTAIN. 

"WHILE THIS LEGISLATION WAS UNDER CONSIDERATION IN THE COMMITTEES OF
THE SENATE AND HOUSE, A NUMBER OF COURTS AND THE INTERSTATE COMMERCE
COMMISSION RECOGNIZED THE APPROPRIATENESS OF COOPERATING WITH CONGRESS
IN MEETING THIS PUBLIC PROBLEM AND ABSTAINED FROM TAKING STEPS WHICH
WOULD HAVE CARRIED FORWARD ANY OF THE PENDING REORGANIZATION PLANS
UNDER SECTION 77.  THIS WAS MONTHS BEFORE THE LEGISLATION CAME UP FOR A
VOTE IN EITHER THE SENATE OR HOUSE.  NOW THAT THE LEGISLATION, BOTH IN
THE FORM IN WHICH IT WAS REPORTED BY THE RESPECTIVE COMMITTEES OF THE
SENATE AND HOUSE AND IN THE SUBSEQUENT FORM CONTAINED IN THE CONFERENCE
REPORT, WAS PASSED BY AN OVERWHELMING VOTE IN EACH CHAMBER AND THE
OBJECTIVES OF THE LEGISLATION HAVE RECEIVED THE APPROBATION OF THE
PRESIDENT, IT IS CONFIDENTLY HOPED THAT THE COURTS AND THE COMMISSION
WILL TAKE NO STEPS IN SUPPORT OR FURTHERANCE OF PENDING REORGANIZATION
PLANS UNDER SECTION 77, BUT WILL INSTEAD AWAIT ACTION BY THE CONGRESS
AND THE PRESIDENT ON LEGISLATION GIVING EFFECT TO THE PRINCIPLES
FAVORED BY BOTH. 

         CLYDE M. REED. 

          JAMES M. TUNNELL. 

              SAM HOBBS. 

           CHAUNCEY W. REED. 

 WASHINGTON, D.C.,

    AUGUST 14, 1946." 

IT IS DIFFICULT TO BELIEVE THAT HAD THE PRESIDENT SIGNED S. 1253 THIS
COURT WOULD HAVE SUSTAINED THE ACTION OF THE DISTRICT COURT IN
DISMISSING OUT OF HAND THE PETITION FOR RE-EXAMINATION OF THE
REORGANIZATION PLAN.  THE CONSIDERATIONS OF PUBLIC POLICY WHICH
UNDERLAY THAT MEASURE COULD HARDLY HAVE BEEN DISREGARDED, FOR THE
INEQUITIES OF THIS VERY REORGANIZATION PLAN WERE EXTENSIVELY CITED IN
CONGRESS AS DEMONSTRATING THE NEED FOR CORRECTION.  THIS WOULD HAVE
BEEN SO ALTHOUGH CONGRESS DID NOT SEE FIT TO WITHDRAW ENTIRELY THE
FURTHER JURISDICTION OF THE DISTRICT COURT IN THESE REORGANIZATION
PROCEEDINGS.  BUT THE GROUNDS OF THE PRESIDENT'S VETO ONLY EMPHASIZE
THESE CONSIDERATIONS OF PUBLIC POLICY.  THEY SHOULD PROMPT A COURT OF
EQUITY TO STAY ITS HAND UNTIL FURTHER SCRUTINY OF THE PLAN.  THE BI
PARTISAN STATEMENT OF THE CONFERENCE LEADERS UNDERWRITES THE
PRESIDENT'S FORMULATION OF PUBLIC POLICY.  OF COURSE, NEITHER THE
PRESIDENT'S HOPES NOR THE CONFIDENCE OF CONGRESSIONAL LEADERS INSURES
LEGISLATION.  BUT IF THE REALIZATION OF THE DESIRES OF THE PRESIDENT
AND THE EXPECTATIONS OF BI-PARTISAN CONGRESSIONAL LEADERS CONCERNED
WITH THIS LEGISLATION WOULD AFFECT, AS I CANNOT BELIEVE IT WOULD NOT,
THE ACTION OF A COURT OF EQUITY WHEN ASKED TO ENFORCE THIS
REORGANIZATION PLAN, THE COURT OUGHT NOT TO PROCEED ON THE ASSUMPTION
THAT THE LEGISLATION AS OUTLINED BY THE PRESIDENT WILL NOT BE
FORTHCOMING. 

WE ARE DEALING HERE NOT WITH AN ORDINARY LITIGATION AS TO WHICH
COURTS ARE EXERCISING CONVENTIONAL JUDICIAL AUTHORITY.  THE COURTS ARE
CARRYING OUT THE LEGISLATIVE MANDATE OF CONGRESS AS TO THE
CONSIDERATIONS OF PUBLIC POLICY BY WHICH THE ROLE OF THE JUDICIARY IN
RAILROAD REORGANIZATION SHOULD BE GUIDED.  THE PRIMARY RESPONSIBILITY
IS LODGED WITH AN AGENCY OF CONGRESS, THE INTERSTATE COMMERCE
COMMISSION.  THIS COURT'S JURISDICTION IS AT ONCE VERY LIMITED AND
NOVEL.  IF LEGISLATION WHICH WOULD MAKE IT THE DUTY OF THE COURT TO
RECONSIDER THE REORGANIZATION PLAN NOW BEFORE US IS REALLY IN PROSPECT,
ONLY THE MOST IMPERATIVE PUBLIC EMERGENCY SHOULD REQUIRE THIS COURT TO
ENGAGE IN A RACE WITH THE PRESIDENT AND CONGRESS IN THE DISPOSITION OF
QUESTIONS OF PUBLIC POLICY.  CF. PENNSYLVANIA V. WHEELING AND BELMONT
BRIDGE CO., 13 HOW.  518, AND 18 HOW.  421. 

MOREOVER, CONGRESSIONAL INTENTION HAS NOT BEEN LATENT AND CONJECTURAL
SINCE LAST SUMMER.  LEGISLATION, AS SUGGESTED BY THE PRESIDENT, APPEARS
TO HAVE EVERY PROSPECT OF PROMPT CONSIDERATION IN THE NEW CONGRESS.  IN
SUBMITTING A JOINT BI-PARTISAN RESOLUTION (SEE APPENDIX II OF THIS
OPINION) DEALING WITH RAILROAD REORGANIZATIONS, AFTER REFERRING TO THE
PRESIDENT'S MEMORANDUM OF DISAPPROVAL AND THE STATEMENT OF MEMBERS OF
CONGRESS REGARDING FURTHER LEGISLATION, SUPRA, SENATOR REED STATED
THAT 

"PRELIMINARY DISCUSSIONS HAVE ALREADY BEEN AGREED TO WITH MEMBERS OF
THE HOUSE, WITH A VIEW TO EXPEDITING THIS LEGISLATION IN THE EIGHTIETH
CONGRESS.  IT IS HOPED THAT IT CAN BE TAKEN UP, IN A PRELIMINARY STAGE,
WITH THE WHITE HOUSE SO THAT THE GREATEST POSSIBLE SPEED CAN BE SECURED
FOR THE LEGISLATION TO BE FINALLY ENACTED IN THE EIGHTIETH CONGRESS." 

THE COURT RIGHTLY ASSUMES THAT NEITHER THIS COURT NOR THE DISTRICT
COURT IS CONCLUDED BY WHAT WAS DECIDED HERE LAST JUNE.  CHANGED
CIRCUMSTANCES, OF COURSE, MAY REQUIRE THE RE-EXAMINATION OF A PLAN BY
THE INTERSTATE COMMERCE COMMISSION.  FIRST AND LAST, THIS IS A
PROCEEDING IN EQUITY, AND UNTIL A DECREE CONSUMMATING A PLAN OF
REORGANIZATION IS FINALLY SIGNED IT IS THE DUTY OF A COURT OF EQUITY
NOT TO MAKE OF ITSELF AN INSTRUMENT OF INEQUITY.  PECULIARLY IS THIS SO
WHERE THE PARAMOUNT INTEREST IS THAT OF THE PUBLIC, THOUGH THE FORMAL
LITIGATION IS CARRIED ON BY PRIVATE PARTIES.  IN SUCH A SITUATION WE
ARE NOT RESTRICTED TO THE SPECIFIC CLAIMS OF THE FORMAL LITIGANTS.  WE
ARE NOT RESTRICTED TO THE LIMITED SPECIFIC FINANCIAL FACTORS WHICH, IN
THE DEBTOR'S OPINION, HAVE AFFECTED THE SITUATION SINCE LAST JUNE.  THE
DECISIVE ISSUES ARE THOSE POSED BY THE CONGRESS AND THE PRESIDENT.  THE
REAL QUESTION BEFORE THE COURT IS WHETHER, IN THE LIGHT OF EVENTS SINCE
ITS PRIOR DECISION, THERE IS A SOLID BASIS FOR THE JUDGMENT WHICH WE
ARE ASKED TO ENFORCE.  TO BE SURE, EVEN IN A COURT OF EQUITY A MATTER
ONCE ADJUDICATED SHOULD NOT BE RELITIGATED EVEN THOUGH THE LITIGATION
IS STILL OPEN, AS IT ALWAYS IS UNTIL THERE IS A FINAL DECREE.  USUALLY
RECONSIDERATION OF AN INTERIM DETERMINATION BECAUSE OF "CHANGED
CONDITIONS" IMPLIES NEW EVENTS IN NATURE.  BUT NEW UNDERSTANDING OF OLD
FACTS OR HITHERTO UNEXPLORED RELEVANT FACTS MAY CONSTITUTE THE MOST
SIGNIFICANT KIND OF CHANGE IN CIRCUMSTANCES. 

THE ESSENCE OF THE MATTER BEFORE THE COURT IS THIS.  WE ARE ASKED TO
GIVE OUR IMPRIMATUR TO A PLAN OF FAR-REACHING IMPLICATIONS TO THE
PUBLIC INTEREST, IN THAT IT CONCERNS THE CONTROL OF ONE OF THE MAJOR
RAILROAD SYSTEMS OF THE NATION.  THAT PLAN WAS BORN OF THE CONFUSED
UNCERTAINTIES OF THE WAR YEARS, AFTER A LONG PERIOD OF INCUBATION AND
MANY CHANGES.  JUDGMENT OFTEN INVOLVES PROPHECY, AND ALL PROPHECY HAS
AN ELEMENT OF GUESSWORK.  BUT GUESSING CAN BE LESS RATHER THAN MORE. 
HOW MUCH GUESSWORK IS INVOLVED IN THIS PLAN HAS BEEN CANDIDLY INDICATED
BY MEMBERS OF THE INTERSTATE COMMERCE COMMISSION.  TO EXPECT A "NORMAL"
PERIOD, IN THE SENSE OF ASSURED STABILITY, FOR A GOOD STRETCH AHEAD IS
DOUBTLESS TO PURSUE A WILL-O'-THE-WISP.  BUT THE PRESIDENT'S MESSAGE
POINTED TO FACTORS TO WHICH CERTAINLY NO ADEQUATE ATTENTION HAS THUS
FAR BEEN PAID IN THESE PROCEEDINGS. 

THE PRESIDENT SPOKE OF THE "EVIL, PRESENT IN REORGANIZATIONS UNDER
REORGANIZATION."  REPEATEDLY HE REFERRED TO THIS VITAL ASPECT OF THE
PUBLIC INTEREST, THE PROTECTION OF WHICH REQUIRES "THAT REORGANIZATIONS
SHALL PLACE CONTROL OF RAILROADS IN PERSONS PRIMARILY CONCERNED WITH
TRANSPORTATION FOR THE COMMUNITIES SERVED AND FOR THE NATION AS A
WHOLE, WITHOUT ANY STRINGS DIRECT OR INDIRECT, CONDITIONAL OR
OTHERWISE, TO INSTITUTIONS OR OTHERS IN DISTANT FINANCIAL CENTERS." 

HERE IS CERTAINLY A MATTER OF PRIME RELEVANCE IN ASCERTAINING WHETHER
THIS REORGANIZATION PLAN SHOULD BE GIVEN FINAL JUDICIAL SANCTION.  THE
CONTROL OF THIS MAJOR RAILROAD SYSTEM IS TO PASS INTO THE HANDS OF THE
SO-CALLED INSURANCE GROUP IN NEW YORK AND ITS TWO LARGEST LENDING
NATIONAL BANKS.  THE DIRECTIONS IN WHICH INSURANCE COMPANIES HAVE IN
THE PAST EXERTED THEIR POWER OVER THE RAILROADS OF THE COUNTRY ARE NOT
CALCULATED TO GIVE CONFIDENCE IN FUTURE CONTROL BY THEM.  THE
GEOGRAPHICAL AND FUNCTIONAL REMOTENESS OF POWERFUL FINANCIAL INTERESTS
IN NEW YORK, IN RELATION TO A RAILROAD SYSTEM OPERATING IN COLORADO AND
UTAH, BARS THAT SINGLE-MINDED ATTENTIVENESS AND PIONEERING ENTERPRISE
WHICH CHARACTERIZED GREAT RAILROAD MEN LIKE EDWARD H. HARRIMAN, JAMES
J. HILL AND DANIEL WILLARD. 

ANOTHER GROUND OF PRESIDENT TRUMAN'S DISSATISFACTION WITH S. 1253 WAS
ITS FAILURE TO DEAL ADEQUATELY WITH THE "GROSSLY EXCESSIVE INTEREST
RATES NOW WASTING THE FUNDS OF THE RAILROADS IN SECTION 77
PROCEEDINGS."  TO BE SURE, THE INTERSTATE COMMERCE COMMISSION WAS NOT
UNMINDFUL OF THE PRESENT LOW INTEREST LEVELS WHEN IT APPROVED THE 1943
REORGANIZATION PLAN.  IT IS SAFE TO SAY, HOWEVER, THAT THE SIGNIFICANCE
OF THE SHARP DROP IN INTEREST LEVELS HAS RECENTLY BEEN MADE MORE
MANIFEST AND FURTHER INQUIRY WOULD LAY IT BARE. 

FINALLY, THE PRESIDENT SEEMED MUCH CONCERNED BY NEEDLESS FORFEITURES
UNDER REORGANIZATION PLANS.  IN ALL DISCUSSIONS IN CONGRESS, THE PLAN
BEFORE US WAS GIVEN AS A CONSPICUOUS EXAMPLE.  THE AVOIDANCE OF
FORFEITURES DOES NOT INVOLVE LARGE CAPITALIZATIONS.  IT IS TO BE
AVOIDED IN OTHER WAYS, SUCH AS CALLING FOR TENDERS OF BONDS BY
BONDHOLDERS AND THEIR PURCHASE BY COURT TRUSTEES AT THE BELOW-PAR
PREVAILING MARKET PRICES. 

ON TWO OF THESE IMPORTANT ASPECTS OF SOUND FINANCING IN RAILROAD
REORGANIZATIONS, PROPER INTEREST RATES AND WHAT HAS BEEN CALLED "THE
PAINLESS REORGANIZATION OF THE RAILROAD DEBT STRUCTURE," (SEE SPEECH OF
SENATOR VANDENBERG, AUGUST 3, 1939, 76TH CONG., 1ST SESS., 84 CONG.
REC. 11127), THE RECORD HERE IS SLENDER INDEED, IF NOT BARREN. 

HERE ARE LINES OF CRUCIAL PUBLIC INTEREST TO WHICH THE CONGRESS AND
THE PRESIDENT HAVE CALLED AUTHORITATIVE ATTENTION SINCE THE CASE WAS
LAST HERE.  THESE ARE MATTERS ON WHICH THE COURT SHOULD SATISFY ITSELF
ON ITS OWN INITIATIVE WHETHER OR NOT PRIVATE LITIGANTS HAVE ADEQUATELY
PRESENTED THEM.  THE COURT IS NOT PASSING MERELY ON SPECIFIC ISSUES
FRAMED BY THE PARTIES OR ON THE NARROW CLAIMS ON WHICH THE PARTIES
PRESS FOR RECONSIDERATION.  ABSTRACTLY, NO ONE WILL REJECT WHAT THE
PRESIDENT HAS CALLED THE PRINCIPLE THAT "REORGANIZATIONS MUST GIVE
PRIMARY CONSIDERATION TO THE PUBLIC INTEREST."  BUT THAT PUBLIC
INTEREST IS IN THE KEEPING OF THE COURTS.  IT MUST BE SAFEGUARDED BY
THEM WITHOUT REGARD TO THE MANNER IN WHICH THOSE WHO HAVE ALSO PRIVATE
INTERESTS REPRESENT THE PUBLIC INTEREST.    AND WHAT CONSIDERATION IS
MORE COMPELLING THAN THAT THIS REORGANIZATION BE RE-EXAMINED BY THE
INTERSTATE COMMERCE COMMISSION IN THE LIGHT OF THE VAST CHANGES OF THE
TRANSFORMING SIX YEARS SINCE THE INTERSTATE COMMERCE COMMISSION CLOSED
ITS RECORD IN THIS CASE, PARTICULARLY IN LIGHT OF THE SCRUTINY WHICH
THESE REORGANIZATIONS HAVE RECEIVED FROM THE CONGRESS AND THE PRESIDENT
SINCE THIS COURT LAST CONSIDERED THE CASE?  THERE IS NO SUGGESTION THAT
THE INTERESTS OF THE RAILROAD, OR THE PUBLIC THAT IT SERVES, OR ITS
CREDITORS, WILL SUFFER BY THE DELAY NECESSARY TO EXPLORE FURTHER THESE
BASIC ISSUES BEFORE TURNING ITS CONTROL OVER TO DISTANT FINANCIAL
INSTITUTIONS.  NO ONE HAS SUGGESTED THAT THIS RAILROAD HAS NOT SERVED
THE PUBLIC EFFECTIVELY WHILE UNDER COURT CONTROL, OR THAT IT CANNOT
CONTINUE TO DO SO UNTIL FULL INQUIRY DISSIPATES THE HEAVY CLOUDS OF
DOUBT RESTING OVER THIS REORGANIZATION.  TO BE SURE, THE ROAD HAS BEEN
IN REORGANIZATION SINCE 1935.  BUT IT TOOK FOUR YEARS FOR THE
FORMULATION OF THE FIRST REORGANIZATION PLAN AND ANOTHER FOUR TO
FORMULATE THE ADDITIONAL PLANS.  WHAT JUDGE LEARNED HAND RECENTLY SAID
OF ANOTHER SITUATION IS HERE APPLICABLE:  "THERE CAN BE CONSIDERATIONS
MORE IMPERATIVE THAN THE DESPATCH OF JUDICIAL BUSINESS, EVEN AFTER
DELAYS SO LONG AS EXISTED IN THIS CASE.  IF THE LEGALLY PROTECTED
INTERESTS OF ANY OPPOSING PARTIES ARE FULLY PRESERVED, IT IS NOT A GOOD
REASON TO DENY OTHERS ANY REASONABLE CHANCE TO PROTECT THEIR OWN
INTERESTS THAT THEY HAVE BEEN LONG IN ASSERTING THEM."  KNIGHT V.
WERTHEIM & CO., 158 F.2D 838, 844.  SURELY THE PROTECTION OF THE PUBLIC
INTEREST IN THE APECIAL KEEPING OF THE COURT IS MORE IMPERATIVE THAN
THE DESPATCH OF JUDICIAL BUSINESS, AND NO LEGALLY PROTECTED INTEREST OF
THOSE TO WHOM THE FINANCIAL CONTROL OF THIS ROAD HAS BEEN AWARDED CAN
POSSIBLY SUFFER BY FULL INQUIRY AS TO WHETHER THE PARAMOUNT PUBLIC
INTEREST HAS BEEN PROPERLY SAFEGUARDED. 

       APPENDIX I.

                      MEMORANDUM OF DISAPPROVAL. 

I AM WITHHOLDING MY APPROVAL OF S. 1253, ENTITLED "AN ACT TO ENABLE
DEBTOR RAILROAD CORPORATIONS, WHOSE PROPERTIES DURING A PERIOD OF SEVEN
YEARS HAVE PROVIDED SUFFICIENT EARNINGS TO PAY FIXED CHARGES, TO EFFECT
A READJUSTMENT OF THEIR FINANCIAL STRUCTURES; TO ALTER OR MODIFY THEIR
FINANCIAL OBLIGATIONS; AND FOR OTHER PURPOSES." 

EVEN THOUGH I AM FAMILIAR WITH THE DEFICIENCIES AND INEQUITIES AND
THE EVILS THAT EXIST UNDER SECTION 77 OF THE PRESENT BANKRUPTCY ACT, I
FEAR THAT THIS NEW BILL WOULD NOT ACCOMPLISH THE PURPOSE FOR WHICH IT
WAS INTENDED. 

THE BILL CONTAINS TWO SECTIONS, THE FIRST OF WHICH CONTEMPLATES THE
PREVENTION OF BANKRUPTCY PROCEEDINGS WHERE PRACTICABLE; THE SECOND
CONTEMPLATES THE REORGANIZATION OF CERTAIN RAILROAD CARRIERS BY THE
INSTITUTION OF PROCEEDINGS UNDER SECTION 1 OF THE BILL FOR READJUSTMENT
OF THEIR FINANCIAL AFFAIRS. 

OBJECTIONS WHICH I HAVE TO THE BILL INCLUDE THE FOLLOWING: 

THE BILL FAILS TO DIRECT SPECIFICALLY THE IMMEDIATE REDUCTION OF THE
GROSSLY EXCESSIVE INTEREST RATES NOW WASTING THE FUNDS OF THE RAILROADS
IN SECTION 77 PROCEEDINGS.  MILLIONS OF DOLLARS PER YEAR CAN BE SAVED
AT ONCE FOR EACH OF THE RAILROADS IN SECTION 77 PROCEEDINGS, BY
REDUCING THE INTEREST RATES ON THEIR BONDS AND OTHER DEBT DOWN TO THE
LEVEL OF THE INTEREST RATES PAID BY RAILROADS NOT IN SECTION 77
PROCEEDINGS.  I REITERATE A STATEMENT WHICH I MADE IN MY MESSAGE TO
CONGRESS ON THE STATE OF THE UNION WHICH IS AS FOLLOWS, "LOW INTEREST
RATES WILL BE AN IMPORTANT FORCE IN PROMOTING THE FULL PRODUCTION AND
FULL EMPLOYMENT IN THE POST-WAR PERIOD FOR WHICH WE ARE ALL STRIVING." 

THE BILL DOES NOT ADEQUATELY CURE THE EVIL, PRESENT IN
REORGANIZATIONS UNDER SECTION 77, OF PERMITTING IMPROPER CONTROL OF
RAILROADS AFTER THEIR REORGANIZATION. 

THE BILL FAILS TO PROVIDE FULL PROTECTION AGAINST FORFEITURE OF
SECURITIES AND INVESTMENTS. 

THE LEVEL OF FEES AND EXPENSES IN REORGANIZATION CASES UNDER SECTION
77 HAS BEEN EXCESSIVE.  THIS IS NOT CORRECTED IN THIS BILL. 
AFFIRMATIVE PROVISIONS TO CURB THIS EVIL AND TO BRING IT UNDER STRICT
CONTROL SHOULD BE INCLUDED IN ANY BILL WHICH MAY BE ENACTED. 

THE BILL EXCLUDES FROM ITS BENEFITS CERTAIN RAILROADS WHICH SHOULD BE
BROUGHT WITHIN ITS PROVISIONS IF IT IS TO BECOME LAW.  IN THIS REGARD
IT APPEARS THAT THE FIFTY MILLION DOLLAR LIMITATION IN SECTION 2 OF THE
BILL WOULD EXCLUDE SOME RAILROADS FOR WHOSE EXCLUSION THERE APPEARS TO
BE NO LOGICAL JUSTIFICATION. 

THIS BILL FAILS TO CORRECT A SERIOUS ABUSE WHICH I CONDEMNED IN THE
COURSE OF THE SENATE RAILROAD INVESTIGATION.  I REFER TO THE ABUSE OF
DIVERTING, UNDER COVER OF A REORGANIZATION PLAN, THE FUNDS OF A
RAILROAD FOR THE PURCHASE OF ITS OWN STOCKS IN THE MARKET. 

ON THE OTHER HAND, THE BILL DOES INCORPORATE PRINCIPLES FOR WHICH I
WAS ONE OF THE SPONSORS IN THE SENATE.  I COMMEND PARTICULARLY THE
EMPHASIS WHICH THE BILL PLACES ON THE PRINCIPLE THAT REORGANIZATIONS
MUST GIVE PRIMARY CONSIDERATION TO THE PUBLIC INTEREST, AND TO THE BEST
INTERESTS OF THE RAILROADS WHICH ARE BEING REORGANIZED. 

THIS REQUIRES AMONG OTHER THINGS THAT REORGANIZATIONS SHALL PLACE
CONTROL OF RAILROADS IN PERSONS PRIMARILY CONCERNED WITH TRANSPORTATION
FOR THE COMMUNITIES SERVED AND FOR THE NATION AS A WHOLE, WITHOUT ANY
STRINGS DIRECT OR INDIRECT, CONDITIONAL OR OTHERWISE, TO INSTITUTIONS
OR OTHERS IN DISTANT FINANCIAL CENTERS. 

SUCH REGARD FOR THE PUBLIC INTEREST WILL ALSO HELP THE STOCKHOLDERS,
WHETHER THEY BE RAILROAD EMPLOYEES WHO HAVE INVESTED IN THE STOCKS OF
THE COMPANIES FOR WHICH THEY WORK, OR ORDINARY INVESTORS, DESIROUS OF
SAFEGUARDING THEIR INVESTMENT, BUT NOT OF HELPING ANY INTEREST TO
CAPTURE CONTROL OF THEIR RAILROAD.  THESE STOCKHOLDERS, WHOM THE BILL
JUSTLY SEEKS TO PROTECT AGAINST FORFEITURE, CAN AND SHOULD GET SUCH
PROTECTION, BUT WITHOUT ENABLING ANY FINANCIAL INTEREST TO USE SUCH
LEGISLATION TO ACQUIRE CONTROL. 

BY WITHHOLDING MY SIGNATURE TO THIS BILL I DO NOT INTEND TO INDICATE
THAT I FAVOR THE PENDING REORGANIZATION PLANS.  I AM IN AGREEMENT WITH
THOSE OBJECTIVES OF THE BILL WHICH PREVENT UNDESIRABLE CONTROL OF THE
RAILROADS, EITHER IMMEDIATELY OR WITHIN A FEW YEARS, AND WHICH PREVENT
FORFEITURES OF SECURITIES. 

I BELIEVE THAT THE NEXT CONGRESS CAN PASS A BILL WHICH WILL MEET THE
STATED OBJECTIONS AND WHICH WILL BE IN THE BEST INTERESTS OF THE
PUBLIC, THE RAILROADS, THE BONDHOLDERS AND OTHER CREDITORS, AND THE
STOCKHOLDERS. 

                  HARRY S. TRUMAN

   THE WHITE HOUSE,

             AUGUST 13, 1946. 

   APPENDIX II.

(S. RES. 65, 80TH CONG., 1ST SESS., JAN. 22, 1947, CONG. REC. P.
543.) 

WHEREAS MANY RAILROADS IN THE CONTINENTAL UNITED STATES ARE IN THE
HANDS OF RECEIVERS AND TRUSTEES BECAUSE OF INSOLVENCY PROCEEDINGS
BROUGHT UNDER SECTION 77 OF THE BANKRUPTCY ACT, OR THROUGH EQUITY COURT
PROCEDURE; AND 

WHEREAS THE MILEAGE OF THESE RAILROADS IS APPROXIMATELY FORTY
THOUSAND, AND THE INVESTMENT IN ROAD AND EQUIPMENT AMOUNTS TO SEVERAL
BILLION DOLLARS; AND 

WHEREAS MANY OF THESE ROADS ENTERED BANKRUPTCY IN 1933, 1934, 1935,
OR 1936, 10 TO 14 YEARS AGO, AND THE EARNINGS OF THESE ROADS IN RECENT
YEARS HAVE BEEN SUFFICIENT TO ACCUMULATE LARGE CASH AMOUNTS, AND HAVE
PLACED SUCH ROADS IN A SOLVENT POSITION; AND 

WHEREAS, ACCORDING TO THE BEST INFORMATION AVAILABLE, COURT
PROCEEDINGS INVOLVING SOME VERY IMPORTANT RAILROADS ARE IN SUCH A
CONDITION THAT IT IS DIFFICULT IF NOT IMPOSSIBLE TO APPROXIMATE THE
TIME WHEN REORGANIZATION UNDER SECTION 77 WILL BE COMPLETED, AND IT IS
FEASIBLE FOR A NUMBER OF THESE ROADS TO RETIRE PART OF THEIR
INDEBTEDNESS, AT A DISCOUNT, AND TO REFUND OR EXTEND THE MATURITY DATE
OF THE BALANCE OF THEIR INDEBTEDNESS, AND IT FURTHER APPEARS DESIRABLE
TO DISCHARGE SUCH RAILROADS FROM BANKRUPTCY PROCEEDINGS WITHOUT THE
NECESSITY OF DRASTIC REORGANIZATIONS UNDER SECTION 77; AND 

WHEREAS THE CONTINUED HOLDING OF ROADS THAT HAVE BECOME SOLVENT IN
TRUSTEE OR RECEIVER OPERATION AS INSOLVENT ROADS, AND FURTHER EFFORTS
TO REORGANIZE, UNDER SECTION 77, RAILROADS WHICH NO LONGER NEED SUCH
REORGANIZATION, ARE CONTRARY TO THE GENERAL PUBLIC INTEREST AND
CONTRARY TO SOUND PUBLIC POLICY; AND 

WHEREAS THE PRESIDENT OF THE UNITED STATES HAS JOINED WITH CONGRESS
IN GOING ON RECORD IN FAVOR OF MODIFICATIONS OF PRESENT REORGANIZATION
LEGISLATION AND IN FAVOR OF THE PRINCIPLES PROPOSED BY THE APPROPRIATE
COMMITTEES OF THE SENATE AND HOUSE OF REPRESENTATIVES IN 1946, AND IN
FAVOR OF THE PRINCIPLES ENACTED BY CONGRESS IN 1946, AND THE PRESIDENT
HAS FURTHER URGED THE STRENGTHENING OF SUCH PROPOSALS AND THE ADOPTION
OF FURTHER PROVISIONS TO CARRY OUT THOSE GENERAL PRINCIPLES: THEREFORE
BE IT 

RESOLVED, THAT THE COMMITTEE ON INTERSTATE COMMERCE OF THE SENATE IS
AUTHORIZED AND DIRECTED EITHER AS A COMMITTEE, OR THROUGH A DULY
CONSTITUTED SUBCOMMITTEE, TO MAKE AN INVESTIGATION OF THE CONDITIONS
SURROUNDING THE OPERATION AND HANDLING OF SAID RAILROADS BY TRUSTEES
AND RECEIVERS THROUGH THE PERIOD OF RECEIVERSHIP OR TRUSTEESHIP; TO
ASCERTAIN THE EXTENT TO WHICH THERE SHOULD BE ELIMINATION OR REDUCTION
OF ANY OF THE EXCEPTIONS HERETOFORE PROPOSED TO LEGISLATION ON THIS
SUBJECT; TO INQUIRE INTO THE CAUSES FOR THE FAILURES, (A) TO REDUCE THE
INTEREST RATES OF RAILROADS IN RECEIVERSHIP AND BANKRUPTCY PROCEEDINGS;
(B) TO ARRANGE FOR THE REDUCTION OF THE RATES OF INTEREST PAYABLE BY
SUCH RAILROADS ON THEIR OUTSTANDING INDEBTEDNESS; (C) TO ARRANGE FOR
THE REFUNDING AND EXTENSION OF MATURITY DATES OF PART OR ALL OF THE
INDEBTEDNESS OF SUCH RAILROADS WHILE IN THE HANDS OF THE COURTS; (D) TO
CALL FOR THE TENDER OF BONDS AND THE PURCHASE OF BONDS OF SUCH
RAILROADS EITHER AT A DISCOUNT OR OTHERWISE, BY THE RECEIVERS OR
TRUSTEES, OUT OF FUNDS IN THEIR HANDS; (E) TO DISCHARGE SUCH RAILROADS
FROM COURT PROCEEDINGS WITHOUT THE NECESSITY OF BEING SUBJECTED TO
DRASTIC REORGANIZATION UNDER SECTION 77 OF THE BANKRUPTCY ACT; AND (F)
TO RETURN SUCH RAILROADS TO THEIR OWNERS AS PROMPTLY AS POSSIBLE; TO
INVESTIGATE THE FEES PAID TRUSTEES, RECEIVERS, COUNSEL, BANKERS OR BANK
SYNDICATES, COMMITTEES AND EXPERTS, AND ANY AND ALL MATTERS RELATING
THERETO, AND TO ASCERTAIN THE METHODS OF REDUCING REORGANIZATION
EXPENSES AND THE POSSIBILITY OF ELIMINATING, BY DISCHARGE OF RAILROADS
WITHOUT FURTHER REORGANIZATION PROCEEDINGS UNDER SECTION 77, THE
NECESSITY FOR ANY FURTHER REORGANIZATION EXPENSES UNDER ELABORATE AND
THEREFORE COSTLY REORGANIZATION PROCEEDINGS; TO ASCERTAIN WHAT
LEGISLATIVE METHODS CAN BE PROVIDED TO ENABLE RAILROADS NOW UNDERGOING
REORGANIZATION TO OBTAIN MANAGEMENT LOCAL TO THEIR LINES OF OPERATION
AND TO THE COMMUNITIES, SHIPPERS, AND PASSENGERS THEY SERVE, AND TO
ENABLE THE OWNERS OF SUCH RAILROADS TO SECURE CONTROL FREE FROM
DOMINATION BY INTERESTS WHICH HAVE NOT RECEIVED THE AFFIRMATIVE AND
EXPRESS VOTE OF THE SECURITY HOLDERS SUBSEQUENT TO REORGANIZATION; TO
ASCERTAIN WHAT VOLUNTARY METHODS AND STEPS ADDITIONAL TO THOSE PROPOSED
IN LEGISLATION ADOPTED BY THE SEVENTY-NINTH CONGRESS ON THIS SUBJECT
WILL BE USEFUL IN EXPEDITING THE DISCHARGE OF RAILROADS FROM COSTLY
BANKRUPTCY AND REORGANIZATION PROCEEDINGS WITHOUT THE NECESSITY OF
DRASTIC REORGANIZATIONS UNDER SECTION 77, AND TO PERMIT REORGANIZATION
BY VOLUNTARY PROCEEDINGS IN A BUSINESSLIKE MANNER AND ON A BUSINESSLIKE
BASIS; TO ASCERTAIN WHAT METHODS AND PROCEDURES, ADDITIONAL TO THOSE
PROVIDED IN LEGISLATION PASSED BY THE SEVENTY-NINTH CONGRESS ON THIS
SUBJECT, WILL BE USEFUL FOR THE PROTECTION OF RAILROAD EMPLOYEES AND
OTHER INVESTORS IN THE STOCKS OF THE RAILROADS.  THE COMMITTEE IS
DIRECTED TO REPORT TO THE SENATE AS EARLY AS PRACTICABLE, WITH SUCH
RECOMMENDATIONS AS TO CHANGES IN EXISTING LAW AS MAY BE FOUND
DESIRABLE. 

FOR THE PURPOSES OF THIS RESOLUTION, THE COMMITTEE, OR ANY DULY
AUTHORIZED SUBCOMMITTEE THEREOF, IS AUTHORIZED TO HOLD SUCH HEARINGS,
TO SIT AND ACT AT SUCH TIMES AND PLACES DURING THE SESSIONS, RECESSES,
AND ADJOURNED PERIODS OF THE EIGHTIETH CONGRESS, TO EMPLOY SUCH
CLERICAL AND OTHER ASSISTANTS, TO REQUIRE BY SUBPENA OR OTHERWISE THE
ATTENDANCE OF SUCH WITNESSES AND THE PRODUCTION OF SUCH CORRESPONDENCE,
BOOKS, PAPERS, AND DOCUMENTS, TO ADMINISTER SUCH OATHS, TO TAKE SUCH
TESTIMONY, AND TO MAKE SUCH EXPENDITURES, AS IT DEEMS ADVISABLE.  THE
COST OF STENOGRAPHIC SERVICES TO REPORT SUCH HEARINGS SHALL NOT BE IN
EXCESS OF 25 CENTS PER 100 WORDS. 
..END :




















TRANSWRAP CORP. V. STOKES CO., 329 U.S. 637 


NO. 208.  ARGUED JANUARY 7, 8, 1947.  - DECIDED FEBRUARY 3, 1947.  - 156
F.2D 198, REVERSED. 


A PATENT-LICENSING AGREEMENT GRANTED AN EXCLUSIVE LICENSE TO
MANUFACTURE AND SELL IN THE UNITED STATES, CANADA AND MEXICO A PATENTED
MACHINE UNDER THE PATENTS THEN OWNED OR LATER ACQUIRED BY THE LICENSOR,
SUBJECT TO A CONDITION THAT THE LICENSEE ASSIGN TO THE LICENSOR ANY
IMPROVEMENT PATENTS APPLICABLE TO THE MACHINE AND SUITABLE FOR USE IN
CONNECTION WITH IT.  HELD:  THE INCLUSION IN THE LICENSE OF THE
CONDITION REQUIRING THE LICENSEE TO ASSIGN IMPROVEMENT PATENTS IS NOT
PER SE ILLEGAL AND UNENFORCEABLE.  PP. 642-648. 

TRANSPARENT-WRAP MACHINE CORP. V. STOKES & SMITH CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

IN A SUIT FOR A DECLARATORY JUDGMENT AND AN INJUNCTION INSTITUTED BY
A LICENSEE UNDER A PATENT-LICENSING AGREEMENT, THE DISTRICT COURT
SUSTAINED THE VALIDITY OF A CONDITION REQUIRING THE LICENSEE TO ASSIGN
IMPROVEMENT PATENTS TO THE LICENSOR.  THE CIRCUIT COURT OF APPEALS
REVERSED.  156 F.2D 198.  THIS COURT GRANTED CERTIORARI.  329 U.S.
695.  REVERSED, P. 648. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR A DECLARATORY JUDGMENT (JUDICIAL CODE SEC. 274D,
28 U.S.C. SEC. 400) AND AN INJUNCTION, INSTITUTED BY RESPONDENT FOR THE
DETERMINATION OF THE LEGALITY AND ENFORCEABILITY OF A PROVISION OF A
PATENT LICENSE AGREEMENT.  THE DISTRICT COURT, WHOSE JURISDICTION WAS
BASED ON DIVERSITY OF CITIZENSHIP (JUDICIAL CODE SEC. 24(1), 28 U.S.C.
SEC. 41(1)), ENTERED JUDGMENT FOR PETITIONER, HOLDING THE PROVISION
VALID.  THE CIRCUIT COURT OF APPEALS REVERSED BY A DIVIDED VOTE, 156
F.2D 198, BEING OF THE OPINION THAT THE PROVISION IN QUESTION WAS
ILLEGAL UNDER THE LINE OF DECISIONS REPRESENTED BY MERCOID CORPORATION
V. MID-CONTINENT CO., 320 U.S. 661.  THE CASE IS HERE ON A PETITION FOR
A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE PUBLIC IMPORTANCE
OF THE QUESTION PRESENTED AND OF THE APPARENT CONFLICT BETWEEN THE
DECISION BELOW AND ALLBRIGHT-NELL CO. V. STANLEY HILLER CO., 72 F.2D
392, DECIDED BY THE SEVENTH CIRCUIT COURT OF APPEALS. 

PETITIONER, ORGANIZED IN 1934, HAS PATENTS ON A MACHINE WHICH BEARS
THE TRADE-MARK "TRANSWRAP."  THIS MACHINE MAKES TRANSPARENT PACKAGES,
SIMULTANEOUSLY FILLS THEM WITH SUCH ARTICLES AS CANDY, AND SEALS THEM. 
IN 1937 PETITIONER SOLD AND RESPONDENT ACQUIRED THE TRANSWRAP BUSINESS
IN THE UNITED STATES, CANADA, AND MEXICO, THE RIGHT TO USE THE TRADE
MARK "TRANSWRAP," AND AN EXCLUSIVE LICENSE TO MANUFACTURE AND SELL THE
TRANSWRAP MACHINE UNDER THE PATENTS PETITIONER THEN OWNED OR MIGHT
ACQUIRE.  THE AGREEMENT CONTAINED A FORMULA BY WHICH ROYALTIES WERE TO
BE COMPUTED AND PAID.  THE TERM OF THE AGREEMENT WAS TEN YEARS WITH AN
OPTION IN RESPONDENT TO RENEW IT THEREAFTER FOR FIVE-YEAR PERIODS
DURING THE LIFE OF THE PATENTS COVERED BY THE AGREEMENT.  THE AGREEMENT
COULD BE TERMINATED BY PETITIONER ON NOTICE FOR SPECIFIED DEFAULTS ON
RESPONDENT'S PART.  THE PROVISION OF THE AGREEMENT AROUND WHICH THE
PRESENT CONTROVERSY TURNS IS A COVENANT BY RESPONDENT TO ASSIGN TO
PETITIONER IMPROVEMENT PATENTS APPLICABLE TO THE MACHINE AND SUITABLE
FOR USE IN CONNECTION WITH IT.  FN1 

THE PARTIES HAD OPERATED UNDER THE AGREEMENT FOR SEVERAL YEARS WHEN
PETITIONER ASCERTAINED THAT RESPONDENT HAD TAKEN OUT CERTAIN PATENTS ON
IMPROVEMENTS IN THE MACHINE.  PETITIONER NOTIFIED RESPONDENT THAT ITS
FAILURE TO DISCLOSE AND ASSIGN THESE IMPROVEMENTS CONSTITUTED A BREACH
OF THE AGREEMENT AND CALLED ON RESPONDENT TO REMEDY THE DEFAULT.  WHEN
THAT DID NOT OCCUR, PETITIONER NOTIFIED RESPONDENT THAT THE AGREEMENT
WOULD BE TERMINATED ON A DAY CERTAIN.  THEREUPON RESPONDENT INSTITUTED
THIS ACTION ASKING THAT THE PROVISIONS RESPECTING THE IMPROVEMENT
PATENTS BE DECLARED ILLEGAL AND UNENFORCEABLE AND THAT PETITIONER BE
ENJOINED FROM TERMINATING THE AGREEMENT.  FN2 

IN A LONG AND CONSISTENT LINE OF CASES THE COURT HAS HELD THAT AN
OWNER OF A PATENT MAY NOT CONDITION A LICENSE SO AS TO TIE TO THE USE
OF THE PATENT THE USE OF OTHER MATERIALS, PROCESSES OR DEVICES WHICH
LIE OUTSIDE OF THE MONOPOLY OF THE PATENT.  MOTION PICTURE PATENTS CO.
V. UNIVERSAL FILM MFG. CO., 243 U.S. 502; CARBICE CORP. V. AMERICAN
PATENTS DEV.  CORP., 283 U.S. 27; LEITCH MFG. CO. V. BARBER CO., 302
U.S. 458; MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488; B.B. CHEMICAL
CO. V. ELLIS, 314 U.S. 495; MERCOID CORPORATION V. MID-CONTINENT CO.,
SUPRA; MERCOID CORP. V. HONEYWELL CO., 320 U.S. 680.  AS STATED IN
MORTON SALT CO. V. SUPPIGER CO., SUPRA, P. 492, "...  THE PUBLIC POLICY
WHICH INCLUDES INVENTIONS WITHIN THE GRANTED MONOPOLY EXCLUDES FROM IT
ALL THAT IS NOT EMBRACED IN THE INVENTION.  IT EQUALLY FORBIDS THE USE
OF THE PATENT TO SECURE AN EXCLUSIVE RIGHT OR LIMITED MONOPOLY NOT
GRANTED BY THE PATENT OFFICE AND WHICH IT IS CONTRARY TO PUBLIC POLICY
TO GRANT."  IF SUCH PRACTICES WERE TOLERATED, OWNERSHIP OF A PATENT
WOULD GIVE THE PATENTEE CONTROL OVER UNPATENTED ARTICLES WHICH BUT FOR
THE PATENT HE WOULD NOT POSSESS.  "IF THE RESTRAINT IS LAWFUL BECAUSE
OF THE PATENT, THE PATENT WILL HAVE BEEN EXPANDED BY CONTRACT.  THAT ON
WHICH NO PATENT COULD BE OBTAINED WOULD BE AS EFFECTIVELY PROTECTED AS
IF A PATENT HAD BEEN ISSUED.  PRIVATE BUSINESS WOULD FUNCTION AS ITS
OWN PATENT OFFICE AND IMPOSE ITS OWN LAW UPON ITS LICENSEES."  MERCOID
CORP. V. MID-CONTINENT CO., SUPRA, P. 667.  THE REQUIREMENT THAT A
LICENSEE UNDER A PATENT USE AN UNPATENTED MATERIAL OR DEVICE WITH THE
PATENT MIGHT VIOLATE THE ANTI-TRUST LAWS BUT FOR THE ATTEMPTED
PROTECTION OF THE PATENT.  ID. THE CONDEMNATION OF THE PRACTICE,
HOWEVER, DOES NOT DEPEND ON SUCH A SHOWING.  THOUGH CONTROL OF THE
UNPATENTED ARTICLE OR DEVICE FALLS SHORT OF A PROHIBITED RESTRAINT OF
TRADE OR MONOPOLY, IT WILL NOT BE SANCTIONED.  MORTON SALT CO. V.
SUPPIGER CO., SUPRA.  FOR IT IS THE TENDENCY IN THAT DIRECTION WHICH
CONDEMNS THE PRACTICE AND WHICH, IF APPROVED BY A COURT EITHER THROUGH
ENJOINING INFRINGEMENT OR ENFORCING THE COVENANT, WOULD RECEIVE A
POWERFUL IMPETUS.  ID. 

THE CIRCUIT COURT OF APPEALS WAS OF THE VIEW THAT THE PRINCIPLE OF
THOSE CASES WAS APPLICABLE HERE AND RENDERED ILLEGAL AND UNENFORCEABLE
THE COVENANT TO ASSIGN THE IMPROVEMENT PATENTS TO PETITIONER.  IT
STATED, 156 F.2D, P. 202, "THE OWNER OF ALL PROPERTY, BY WITHHOLDING IT
UPON ANY OTHER TERMS, MAY, IF HE CAN, FORCE OTHERS TO BUY FROM HIM;
LAND IS THE BEST EXAMPLE AND EVERY PARCEL OF LAND IS A MONOPOLY.  BUT
IT IS PRECISELY IN THIS THAT A PATENT IS NOT LIKE OTHER PROPERTY; THE
PATENTEE MAY NOT USE IT TO FORCE OTHERS TO BUY OF HIM THINGS OUTSIDE
ITS FOUR CORNERS.  IF THE DEFENDANT GETS THE PLAINTIFF'S PATENTS, IT
WILL HAVE PUT ITSELF IN THAT POSITION, IN PART AT ANY RATE, BY VIRTUE
OF THE COMPULSION OF ITS OWN PATENTS." 

IT WENT ON TO NOTE THAT SINCE ALL IMPROVEMENT PATENTS WOULD NOT
EXPIRE UNTIL AFTER EXPIRATION OF PETITIONER'S PATENTS ON THE MACHINE,
THE ARRANGEMENT PUT RESPONDENT AT A COMPETITIVE DISADVANTAGE.  FOR
RESPONDENT WOULD LOSE THE NEGATIVE COMMAND OVER THE ART WHICH OWNERSHIP
OF THE IMPROVEMENT PATENTS WOULD HAVE GIVEN IT.  MOREOVER, RESPONDENT,
THOUGH ABLE TO RENEW THE LICENSE ON CONDITIONS STATED IN THE AGREEMENT,
WOULD BE IRRETRIEVABLY TIED TO IT SO AS TO BE "FORCED, EITHER TO CEASE
ALL EFFORTS TO PATENT IMPROVEMENTS, OR TO KEEP RENEWING THE CONTRACT IN
ORDER TO ESCAPE THE CONSEQUENCES OF ITS OWN INGENUITY."  ID., P. 203. 

FIRST.  THE FIRST DIFFICULTY WE HAVE WITH THE POSITION OF THE CIRCUIT
COURT OF APPEALS IS THAT CONGRESS HAS MADE ALL PATENTS ASSIGNABLE AND
HAS GRANTED THE ASSIGNEE THE SAME EXCLUSIVE RIGHTS AS THE PATENTEE. 
"EVERY APPLICATION FOR PATENT OR PATENT OR ANY INTEREST THEREIN SHALL
BE ASSIGNABLE IN LAW BY AN INSTRUMENT IN WRITING, AND THE APPLICANT OR
PATENTEE OR HIS ASSIGNS OR LEGAL REPRESENTATIVES MAY IN LIKE MANNER
GRANT AND CONVEY AN EXCLUSIVE RIGHT UNDER HIS APPLICATION FOR PATENT OR
PATENT TO THE WHOLE OR ANY SPECIFIED PART OF THE UNITED STATES."  R.S.
SEC. 4898, 35 U.S.C. SUPP. V SEC. 47.  THE STATUTE DOES NOT LIMIT THE
CONSIDERATION WHICH MAY BE PAID FOR THE ASSIGNMENT TO ANY SPECIES OR
KIND OF PROPERTY.  AT LEAST SO FAR AS THE TERMS OF THE STATUTE ARE
CONCERNED, WE SEE NO DIFFERENCE WHETHER THE CONSIDERATION IS SERVICES
(CF. STANDARD PARTS CO. V. PECK, 264 U.S. 52) OR CASH, OR THE RIGHT TO
USE ANOTHER PATENT. 

AN IMPROVEMENT PATENT MAY, LIKE A PATENT ON A STEP IN A PROCESS, HAVE
GREAT STRATEGIC VALUE.  FOR IT MAY, ON EXPIRATION OF THE BASIC PATENT,
BE THE KEY TO A WHOLE TECHNOLOGY.  ONE WHO HOLDS IT MAY THEREFORE HAVE
A CONSIDERABLE COMPETITIVE ADVANTAGE.  AND ONE WHO ASSIGNS IT AND
THEREBY LOSES NEGATIVE COMMAND OF THE ART MAY BY REASON OF HIS
ASSIGNMENT HAVE SUFFERED A REAL COMPETITIVE HANDICAP.  FOR THEREAFTER
HE WILL HAVE TO PAY TOLL TO THE ASSIGNEE, IF HE PRACTICES THE
INVENTION.  BUT THE COMPETITIVE HANDICAP OR DISADVANTAGE WHICH HE
SUFFERS IS NO GREATER AND NO LESS WHETHER THE CONSIDERATION FOR THE
ASSIGNMENT BE THE RIGHT TO USE THE BASIC PATENT OR SOMETHING ELSE OF
VALUE.  THAT IS TO SAY, THE FREEDOM OF ONE WHO ASSIGNS A PATENT IS
RESTRICTED TO THE SAME DEGREE WHETHER THE ASSIGNMENT IS MADE PURSUANT
TO A LICENSE AGREEMENT OR OTHERWISE. 

IF CONGRESS, BY WHOSE AUTHORITY PATENT RIGHTS ARE CREATED, HAD
ALLOWED PATENTS TO BE ASSIGNED ONLY FOR A SPECIFIED CONSIDERATION, IT
WOULD BE OUR DUTY TO PERMIT NO EXCEPTIONS.  BUT HERE CONGRESS HAS MADE
NO SUCH LIMITATION.  A PATENT IS A SPECIES OF PROPERTY.  IT GIVES THE
PATENTEE OR HIS ASSIGNEE THE "EXCLUSIVE RIGHT TO MAKE, USE, AND VEND
THE INVENTION OR DISCOVERY" FOR A LIMITED PERIOD.  R.S. SEC. 4884, 35
U.S.C. SEC. 40.  THAT IS TO SAY, IT CARRIES FOR THE STATUTORY PERIOD "A
RIGHT TO BE FREE FROM COMPETITION IN THE PRACTICE OF THE INVENTION." 
MERCOID CORPORATION V. MID-CONTINENT CO., SUPRA, P. 665.  THAT
EXCLUSIVE RIGHT, BEING THE ESSENCE OF THE PATENT PRIVILEGE, IS, FOR
PURPOSES OF THE ASSIGNMENT STATUTE, OF THE SAME DIGNITY AS ANY OTHER
PROPERTY WHICH MAY BE USED TO PURCHASE PATENTS. 

SECOND.  WHAT WE HAVE SAID IS NOT, OF COURSE, A COMPLETE ANSWER TO
THE POSITION OF THE CIRCUIT COURT OF APPEALS.  FOR THE QUESTION REMAINS
WHETHER HERE, AS IN MERCOID CORPORATION V. MID-CONTINENT CO., SUPRA,
AND ITS PREDECESSORS, THE CONDITION IN THE LICENSE AGREEMENT VIOLATES
SOME OTHER PRINCIPLE OF LAW OR PUBLIC POLICY.  THE FACT THAT A PATENTEE
HAS THE POWER TO REFUSE A LICENSE DOES NOT MEAN THAT HE HAS THE POWER
TO GRANT A LICENSE ON SUCH CONDITIONS AS HE MAY CHOOSE.  UNITED STATES
V. MASONITE CORP., 316 U.S. 265, 277. 

AS WE HAVE NOTED, SUCH A POWER, IF CONCEDED, WOULD ENABLE THE
PATENTEE NOT ONLY TO EXPLOIT THE INVENTION BUT TO USE IT TO ACQUIRE A
MONOPOLY NOT EMBRACED IN THE PATENT.  THUS, IF HE COULD REQUIRE ALL
LICENSEES TO USE HIS UNPATENTED MATERIALS WITH THE PATENT, HE WOULD
HAVE, OR STAND IN A STRATEGIC POSITION TO ACQUIRE, A MONOPOLY IN THE
UNPATENTED MATERIALS THEMSELVES.  BEYOND THE "LIMITED MONOPOLY" GRANTED
BY THE PATENT, THE METHODS BY WHICH A PATENT IS EXPLOITED ARE "SUBJECT
TO THE GENERAL LAW."  UNITED STATES V. MASONITE CORP., SUPRA, P. 277. 
PROTECTION FROM COMPETITION IN THE SALE OF UNPATENTED MATERIALS IS NOT
GRANTED BY EITHER THE PATENT LAW OR THE GENERAL LAW.  HE WHO USES HIS
PATENT TO OBTAIN PROTECTION FROM COMPETITION IN THE SALE OF UNPATENTED
MATERIALS EXTENDS BY CONTRACT HIS PATENT MONOPOLY TO ARTICLES AS
RESPECTS WHICH THE LAW SANCTIONS NEITHER MONOPOLIES NOR RESTRAINTS OF
TRADE. 

IT IS AT PRECISELY THIS POINT THAT OUR SECOND DIFFICULTY WITH THE
VIEW OF THE CIRCUIT COURT OF APPEALS IS FOUND.  AN IMPROVEMENT PATENT,
LIKE THE BASIC PATENT TO WHICH IT RELATES, IS A LEGALIZED MONOPOLY FOR
A LIMITED PERIOD.  THE LAW PERMITS BOTH TO BE BOUGHT AND SOLD.  ONE WHO
USES ONE PATENT TO ACQUIRE ANOTHER IS NOT EXTENDING HIS PATENT MONOPOLY
TO ARTICLES GOVERNED BY THE GENERAL LAW AND AS RESPECTS WHICH NEITHER
MONOPOLIES NOR RESTRAINTS OF TRADE ARE SANCTIONED.  HE IS INDEED USING
ONE LEGALIZED MONOPOLY TO ACQUIRE ANOTHER LEGALIZED MONOPOLY. 

MERCOID CORPORATION V. MID-CONTINENT CO., SUPRA, AND ITS
PREDECESSORS, BY LIMITING A PATENTEE TO THE MONOPOLY FOUND WITHIN THE
FOUR CORNERS OF THE GRANT, OUTLAWED BUSINESS PRACTICES WHICH THE PATENT
LAW UNAIDED BY RESTRICTIVE AGREEMENTS DID NOT PROTECT.  TAKE THE CASE
OF THE OWNER OF AN UNPATENTED MACHINE WHO LEASES IT OR OTHERWISE
LICENSES ITS USE ON CONDITION THAT ALL IMPROVEMENTS WHICH THE LESSEE OR
LICENSEE PATENTS SHOULD BE ASSIGNED.  HE IS USING HIS PROPERTY TO
ACQUIRE A MONOPOLY.  BUT THE MONOPOLY, BEING A PATENT, IS A LAWFUL
ONE.  THE GENERAL LAW WOULD NO MORE MAKE THAT ACQUISITION OF A PATENT
UNLAWFUL THAN IT WOULD THE ASSIGNMENT OF A PATENT FOR CASH.  YET A
PATENT IS A SPECIES OF PROPERTY; FN3  AND IF THE OWNER OF AN UNPATENTED
MACHINE COULD EXACT THAT CONDITION, WHY MAY NOT THE OWNER OF A PATENTED
MACHINE? 

IT IS TRUE THAT FOR SOME PURPOSES THE OWNER OF A PATENT IS UNDER
DISABILITIES WITH WHICH OWNERS OF OTHER PROPERTY ARE NOT BURDENED. 
THUS WHERE THE USE OF UNPATENTED MATERIALS IS TIED TO THE USE OF A
PATENT, A COURT WILL NOT LEND ITS AID TO ENFORCE THE AGREEMENT THOUGH
CONTROL OF THE UNPATENTED ARTICLE FALLS SHORT OF A PROHIBITED RESTRAINT
OF TRADE OR MONOPOLY.  MORTON SALT CO. V. SUPPIGER CO., SUPRA.  THERE
IS A SUGGESTION THAT THE SAME COURSE SHOULD BE FOLLOWED IN THIS CASE
SINCE THE TENDENCY OF THE PRACTICE WE HAVE HERE WOULD BE IN THE
DIRECTION OF CONCENTRATION OF ECONOMIC POWER THAT MIGHT RUN COUNTER TO
THE POLICY OF THE ANTI-TRUST LAWS.  THE DIFFICULTY IS THAT CONGRESS HAS
NOT MADE ILLEGAL THE ACQUISITION OF IMPROVEMENT PATENTS BY THE OWNER OF
A BASIC PATENT.  THE ASSIGNMENT OF PATENTS IS INDEED SANCTIONED.  AND
AS WE HAVE SAID, THERE IS NO DIFFERENCE IN THE POLICY OF THE ASSIGNMENT
STATUTE WHATEVER CONSIDERATION MAY BE USED TO PURCHASE THE IMPROVEMENT
PATENTS.  AND APART FROM VIOLATIONS OF THE ANTI-TRUST LAWS TO WHICH WE
WILL SHORTLY ADVERT, THE END RESULT IS THE SAME WHETHER THE OWNER OF A
BASIC PATENT USES A LICENSE TO OBTAIN IMPROVEMENT PATENTS OR USES THE
WEALTH WHICH HE ACCUMULATES BY EXPLOITING HIS BASIC PATENT FOR THAT
PURPOSE.  IN SUM, A PATENT LICENSE MAY NOT BE USED COERCIVELY TO EXACT
A CONDITION CONTRARY TO PUBLIC POLICY.  BUT WHAT FALLS WITHIN THE TERMS
OF THE ASSIGNMENT STATUTE IS PLAINLY NOT PER SE AGAINST THE PUBLIC
INTEREST.    IT IS, OF COURSE, TRUE THAT THE MONOPOLY WHICH THE
LICENSOR OBTAINS WHEN HE ACQUIRES THE IMPROVEMENT PATENTS EXTENDS
BEYOND THE TERM OF HIS BASIC PATENT.  BUT AS WE HAVE SAID, THAT IS NOT
CREATING BY AGREEMENT A MONOPOLY WHICH THE LAW OTHERWISE WOULD NOT
SANCTION.  THE GRANT OF THE IMPROVEMENT PATENT ITSELF CREATES THE
MONOPOLY.  ON THE FACTS OF THE PRESENT CASE THE EFFECT ON THE PUBLIC
INTEREST WOULD SEEM TO BE THE SAME WHETHER THE LICENSEE OR THE LICENSOR
OWNS THE IMPROVEMENT PATENTS. 

THERE IS A SUGGESTION THAT THE ENFORCEMENT OF THE CONDITION GIVES THE
LICENSEE LESS INCENTIVE TO MAKE INVENTIONS WHEN HE IS BOUND TO TURN
OVER TO THE LICENSOR THE PRODUCTS OF HIS INVENTIVE GENIUS.  SINCE THE
PRIMARY AIM OF THE PATENT LAWS IS TO PROMOTE THE PROGRESS OF SCIENCE
AND THE USEFUL ARTS (UNITED STATES V. MASONITE CORP., SUPRA, P. 278 AND
CASES CITED), AN ARRANGEMENT WHICH DIMINISHES THE INCENTIVE IS SAID TO
BE AGAINST THE PUBLIC INTEREST.  WHATEVER FORCE THAT ARGUMENT MIGHT
HAVE IN OTHER SITUATIONS, IT IS NOT PERSUASIVE HERE.  RESPONDENT PAYS
NO ADDITIONAL ROYALTY ON ANY IMPROVEMENT PATENTS WHICH ARE USED.  BY
REASON OF THE AGREEMENT ANY IMPROVEMENT PATENT CAN BE PUT TO IMMEDIATE
USE AND EXPLOITED FOR THE ACCOUNT OF THE LICENSEE.  AND THAT BENEFIT
CONTINUES SO LONG AS THE AGREEMENT IS RENEWED.  THE AGREEMENT THUS
SERVES A FUNCTION OF SUPPLYING A MARKET FOR THE IMPROVEMENT PATENTS. 
WHETHER THAT OPPORTUNITY TO EXPLOIT THE IMPROVEMENT PATENTS WOULD BE
INCREASED BUT FOR THE AGREEMENT DEPENDS ON VICISSITUDES OF BUSINESS TOO
CONJECTURAL ON THIS RECORD TO APPRAISE. 

THIRD.  WE ARE QUITE AWARE OF THE POSSIBILITIES OF ABUSE IN THE
PRACTICE OF LICENSING A PATENT ON CONDITION THAT THE LICENSEE ASSIGN
ALL IMPROVEMENT PATENTS TO THE LICENSOR.  CONCEIVABLY THE DEVICE COULD
BE EMPLOYED WITH THE PURPOSE OR EFFECT OF VIOLATING THE ANTI-TRUST
LAWS.  HE WHO ACQUIRES TWO PATENTS ACQUIRES A DOUBLE MONOPOLY.  AS
PATENTS ARE ADDED TO PATENTS A WHOLE INDUSTRY MAY BE REGIMENTED.  THE
OWNER OF A BASIC PATENT MIGHT THUS PERPETUATE HIS CONTROL OVER AN
INDUSTRY LONG AFTER THE BASIC PATENT EXPIRED.  COMPETITORS MIGHT BE
ELIMINATED AND AN INDUSTRIAL MONOPOLY PERFECTED AND MAINTAINED.  FN4
THROUGH THE USE OF PATENT POOLS OR MULTIPLE LICENSING AGREEMENTS THE
FRUITS OF INVENTION OF AN ENTIRE INDUSTRY MIGHT BE SYSTEMATICALLY
FUNNELED INTO THE HANDS OF THE ORIGINAL PATENTEE.  SEE UNITED SHOE
MACHINERY CO. V. LA CHAPELLE, 212 MASS. 467, 99 N.E. 289. 

A PATENT MAY BE SO USED AS TO VIOLATE THE ANTI-TRUST LAWS.  STANDARD
SANITARY MFG. CO. V. UNITED STATES, 226 U.S. 20; UNITED SHOE MACHINERY
CORP. V. UNITED STATES, 258 U.S. 451; ETHYL GASOLINE CORP. V. UNITED
STATES, 309 U.S. 436; UNITED STATES V. MASONITE CORP., SUPRA.  SUCH
VIOLATIONS MAY ARISE THROUGH CONDITIONS IN THE LICENSE WHEREBY THE
LICENSOR SEEKS TO CONTROL THE CONDUCT OF THE LICENSEE BY THE FIXING OF
PRICES (ETHYL GASOLINE CORP V. UNITED STATES, SUPRA; UNITED STATES V.
MASONITE CORP., SUPRA) OR BY OTHER RESTRICTIVE PRACTICES.  UNITED SHOE
MACHINERY CORP. V. UNITED STATES, SUPRA.  MOREOVER, IN THE CLAYTON ACT,
38 STAT. 730, 731, 15 U.S.C. SEC. 14, CONGRESS MADE IT UNLAWFUL TO
CONDITION THE SALE OR LEASE OF ONE ARTICLE ON AN AGREEMENT NOT TO USE
OR BUY A COMPETITOR'S ARTICLE (WHETHER EITHER OR BOTH ARE PATENTED),
WHERE THE EFFECT IS "TO SUBSTANTIALLY LESSEN COMPETITION OR TEND TO
CREATE A MONOPOLY."  SEE INTERNATIONAL BUSINESS MACHINES CORP. V.
UNITED STATES, 298 U.S. 131.  CONGRESS, HOWEVER, HAS MADE NO SPECIFIC
PROHIBITION AGAINST CONDITIONING A PATENT LICENSE ON THE ASSIGNMENT BY
THE LICENSEE OF IMPROVEMENT PATENTS.  BUT THAT DOES NOT MEAN THAT THE
PRACTICE WE HAVE HERE HAS IMMUNITY UNDER THE ANTI-TRUST LAWS.  INDEED,
THE RECENT CASE OF HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386,
324 U.S. 570, DRAMATICALLY ILLUSTRATES HOW THE USE OF A CONDITION OR
COVENANT IN A PATENT LICENSE THAT THE LICENSEE WILL ASSIGN IMPROVEMENT
PATENTS MAY GIVE RISE TO VIOLATIONS OF THE ANTI-TRUST LAWS.  FN5 

THE DISTRICT COURT FOUND NO VIOLATION OF THE ANTI-TRUST LAWS IN THE
PRESENT CASE.  THE CIRCUIT COURT OF APPEALS DID NOT REACH THAT
QUESTION.  HENCE IT, AS WELL AS ANY OTHER QUESTIONS WHICH MAY HAVE BEEN
PRESERVED, ARE OPEN ON OUR REMAND OF THE CAUSE TO THE CIRCUIT COURT OF
APPEALS. 

WE ONLY HOLD THAT THE INCLUSION IN THE LICENSE OF THE CONDITION
REQUIRING THE LICENSEE TO ASSIGN IMPROVEMENT PATENTS IS NOT PER SE
ILLEGAL AND UNENFORCEABLE.  REVERSED. 

FN1  THE RELEVANT PORTIONS OF THIS PROVISION READ AS FOLLOWS: 

"IF THE LICENSEE SHALL DISCOVER OR INVENT AN IMPROVEMENT WHICH IS
APPLICABLE TO THE TRANSWRAP PACKAGING MACHINE AND SUITABLE FOR USE IN
CONNECTION THEREWITH AND APPLICABLE TO THE MAKING AND CLOSING OF THE
PACKAGE, BUT NOT TO THE FILLING NOR TO THE CONTENTS OF THE PACKAGE, IT
SHALL SUBMIT THE SAME TO THE LICENSOR, WHICH MAY, AT ITS OPTION, APPLY
FOR LETTERS PATENT COVERING THE SAME.  IN THE EVENT OF THE FAILURE OF
THE LICENSOR SO TO APPLY FOR LETTERS PATENT COVERING SUCH ADDITIONAL
IMPROVEMENTS, INVENTIONS OR PATENTABLE IDEAS, THE LICENSEE MAY APPLY
FOR THE SAME.  IN THE EVENT THAT SUCH ADDITIONAL LETTERS PATENT ARE
APPLIED FOR AND ARE GRANTED TO THE LICENSOR, THEY SHALL BE DEEMED
COVERED BY THE TERMS OF THIS LICENSE AGREEMENT AND MAY BE USED BY THE
LICENSEE HEREUNDER WITHOUT ANY FURTHER CONSIDERATION, LICENSE FEE OR
ROYALTY AS ABOVE PROVIDED.  IN THE EVENT THAT ANY SUCH ADDITIONAL
IMPROVEMENTS ARE PATENTED BY THE LICENSEE FOR USE IN CONNECTION WITH
TRANSWRAP PACKAGING MACHINES, (AFTER THE REFUSAL OR FAILURE OF THE
LICENSOR TO APPLY FOR PATENTS THEREON), THE LICENSOR MAY, NEVERTHELESS,
HAVE THE USE BUT NOT THE EXCLUSIVE USE OF THE SAME OUTSIDE OF THE
SEVERAL TERRITORIES COVERED BY THIS LICENSE AGREEMENT.  THE EXPENSES OF
OBTAINING ANY SUCH PATENTS SHALL BE PAID BY THE PARTY APPLYING
THEREFOR." 

BY ANOTHER PROVISION OF THE AGREEMENT, LIKEWISE CHALLENGED, IT WAS
PROVIDED THAT DURING THE TERM OF THE LICENSE ALL IMPROVEMENT PATENTS,
WHETHER SECURED BY PETITIONER OR BY RESPONDENT, WERE TO BE INCLUDED IN
THE TERMS OF THE LICENSE WITHOUT PAYMENT OF AN ADDITIONAL ROYALTY.  THE
PETITIONER, HOWEVER, WAS TO HAVE THE RIGHT TO USE AND LICENSE THE USE
OF ANY SUCH IMPROVEMENTS OUTSIDE THE TERRITORIES COVERED BY THE
AGREEMENT. 

FN2  PETITIONER JOINED ISSUE AND FILED A COUNTERCLAIM ASKING THAT THE
IMPROVEMENT PATENTS BE ASSIGNED, THAT THE AGREEMENT BE HELD TERMINATED
AND THAT RESPONDENT BE ENJOINED FROM USING THE ORIGINAL OR IMPROVEMENT
PATENTS.  THE DISTRICT COURT DISMISSED THE COMPLAINT, DECLARED THE
AGREEMENT TERMINATED, AND ORDERED RESPONDENT TO ASSIGN THE PETITIONER
THE IMPROVEMENT PATENTS.  THE CIRCUIT COURT OF APPEALS, ON REVERSING,
HELD NOT ONLY THAT THE PROVISION FOR THE ASSIGNMENT OF THE IMPROVEMENT
PATENTS WAS UNLAWFUL BUT ALSO THAT PETITIONER WAS EXCUSED FROM ANY
FURTHER PERFORMANCE BECAUSE RESPONDENT HAD REPUDIATED ITS AGREEMENT TO
ASSIGN THOSE PATENTS.  IT REMANDED THE CAUSE TO THE DISTRICT COURT TO
DETERMINE WHETHER PETITIONER WAS ENTITLED TO RESTITUTION. 

FN3  SEE JAMES V. CAMPBELL, 104 U.S. 356, 358; HOLLISTER V. BENEDICT
MFG. CO., 113 U.S. 59, 67; CRAMP & SONS CO. V. INTERNATIONAL CURTIS
CO., 246 U.S. 28, 39-40; UNITED STATES V. DUBILIER CONDENSER CORP., 289
U.S. 178, 187. 

FN4  SEE PATENTS AND FREE ENTERPRISE, MONOGRAPH NO. 31, INVESTIGATION
OF CONCENTRATION OF ECONOMIC POWER, TEMPORARY NATIONAL ECONOMIC
COMMITTEE, 76TH CONG., 3D SESS., CHS.  V & VII; WOOD, PATENTS AND
ANTITRUST LAW (1941), CHS.  3 & 4; MARCUS, PATENTS, ANTITRUST LAW AND
ANTITRUST JUDGMENTS THROUGH HARTFORD-EMPIRE, (1945-46) 34 GEORGETOWN
L.J. 1. 

FN5  SEE NOTE 45 COL. L. REV. 601. 

MR. JUSTICE BLACK, MR. JUSTICE RUTLEDGE, AND MR. JUSTICE BURTON WOULD
AFFIRM THE JUDGMENT FOR THE REASONS SET FORTH IN THE OPINION OF THE
CIRCUIT COURT OF APPEALS. 

MR. JUSTICE MURPHY IS OF THE VIEW THAT THE JUDGMENT BELOW SHOULD BE
AFFIRMED.  HE BELIEVES THAT THE COURT'S DECISION IN THIS CASE UNDULY
ENLARGES THE SCOPE OF PATENT MONOPOLIES AND IS INCONSISTENT WITH THE
PHILOSOPHY ENUNCIATED IN MERCOID CORPORATION V. MID-CONTINENT CO., 320
U.S. 661, AND SIMILAR CASES. 
..END :







ELLIS V. UNION PACIFIC R. CO., 329 U.S. 649 


NO. 320.  ARGUED JANUARY 16, 17, 1947.  - DECIDED FEBRUARY 3, 1947.  -
147 NEB. 18, 22 N.W.2D 305, REVERSED. 


1.  IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
EVIDENCE OF THE DEFENDANT'S NEGLIGENCE (DETAILED IN THE OPINION) WAS
SUFFICIENT TO JUSTIFY SUBMISSION OF THE CASE TO THE JURY; AND THE
JUDGMENT OF THE APPELLATE COURT SETTING ASIDE A VERDICT FOR THE
PLAINTIFF IS REVERSED.  PP. 652-653. 

2.  THE CHOICE OF CONFLICTING VERSIONS OF THE WAY THE ACCIDENT
HAPPENED, THE DECISION AS TO WHICH WITNESS WAS TELLING THE TRUTH, THE
INFERENCES TO BE DRAWN FROM UNCONTROVERTED AS WELL AS CONTROVERTED
FACTS, ARE QUESTIONS FOR THE JURY.  P. 653. 

3.  IF THERE IS A REASONABLE BASIS IN THE RECORD FOR CONCLUDING THAT
THERE WAS NEGLIGENCE OF THE EMPLOYER WHICH CAUSED THE INJURY, IT WOULD
BE AN INVASION OF THE JURY'S FUNCTION FOR AN APPELLATE COURT TO DRAW
CONTRARY INFERENCES OR TO CONCLUDE THAT A DIFFERENT CONCLUSION WOULD BE
MORE REASONABLE.  LAVENDER V. KURN, 327 U.S. 645.  P. 653. 

ELLIS V. UNION PACIFIC RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

IN A SUIT IN A NEBRASKA COURT UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, THE PLAINTIFF OBTAINED A JUDGMENT ON A JURY VERDICT.  THE SUPREME
COURT OF NEBRASKA REVERSED FOR INSUFFICIENCY OF THE EVIDENCE TO SHOW
NEGLIGENCE AND ORDERED THE COMPLAINT DISMISSED.  146 NEB. 397, 19
N.W.2D 641; 147 NEB. 18, 22 N.W.2D 305.  THIS COURT GRANTED
CERTIORARI.  329 U.S. 706.  REVERSED, P. 653. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CRUSHED BETWEEN A MOVING RAILROAD CAR AND A BUILDING
WHILE WORKING FOR RESPONDENT RAILROAD AS AN ENGINE FOREMAN IN CHARGE OF
A SWITCHING CREW.  DAMAGES FOR PERSONAL INJURIES WERE SOUGHT IN A
NEBRASKA STATE COURT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35
STAT. 65, AS AMENDED, 45 U.S.C. SEC. 51 ET SEQ. JUDGMENT WAS RENDERED
FOR PETITIONER ON A JURY VERDICT FOR $10,000, BUT ON APPEAL THE STATE
SUPREME COURT REVERSED FOR INSUFFICIENCY OF EVIDENCE TO SHOW
NEGLIGENCE, AND ORDERED THE COMPLAINT DISMISSED.  146 NEB. 397, 19
N.W.2D 641; 147 NEB. 18, 22 N.W.2D 305.  WE GRANTED CERTIORARI BECAUSE
OF AN APPARENT CONFLICT BETWEEN THAT DECISION AND LAVENDER V. KURN, 327
U.S. 645. 

PETITIONER'S EVIDENCE TENDED TO SHOW THE FOLLOWING:  PETITIONER, AGED
41, HAD BEEN IN THE EMPLOY OF RESPONDENT ONLY ONE YEAR, AND HAD A TOTAL
RAILROAD EXPERIENCE OF TWO OR THREE YEARS.  JUST BEFORE SUNSET ON MARCH
15, 1943, HE WAS ENGAGED, ALONG WITH OTHER MEMBERS OF HIS CREW, IN
BACKING AN ENGINE AND BOX CAR AROUND A CURVE ON A SPUR TRACK WHERE
VISIBILITY WAS OBSTRUCTED BY A BUILDING LOCATED ON THE INSIDE AND NEAR
THE MIDDLE OF THE CURVE.  HE WAS STANDING ON THE GROUND ON THE SAME
SIDE AS THE BUILDING AND TO THE RIGHT OF THE ENGINE, AND WAS
CONTROLLING OPERATIONS BY HAND SIGNALS TO THE ENGINEER.  ENGINE FOREMEN
FREQUENTLY STAND TO THE RIGHT OF THE ENGINE, ON THE ENGINEER'S SIDE OF
THE CAB.  A SWITCHMAN WAS LOCATED AROUND THE CURVE, OUT OF SIGHT OF THE
ENGINEER, ON A LOADING PLATFORM AT WHICH THE CAR WAS TO BE "SPOTTED." 
PETITIONER MOVED BETWEEN THE BUILDING AND THE TRACK IN AN ATTEMPT TO BE
IN A CENTRAL POSITION FROM WHICH HE COULD RECEIVE SIGNALS FROM THE
SWITCHMAN AND RELAY THEM TO THE ENGINEER.  AS THE CAR MOVED PAST
PETITIONER, IT CAUGHT AND PINNED THE UPPER PART OF HIS BODY AGAINST THE
WALL OF THE BUILDING, CAUSING SERIOUS INJURIES.  THE SITUATION WAS
DECEPTIVE BECAUSE THE OVERHANG OF THE CAR ON THE CURVE AND ITS TILT
TOWARD THE BUILDING RESULTING FROM A HIGHER OUTSIDE RAIL, REDUCED
CLEARANCE MATERIALLY.  IN FACT, THE PLACE WHERE PETITIONER WAS STANDING
WAS IN THE ONE SHORT SEGMENT OF THE ARC OF THE CURVE WHERE CLEARANCE
WAS INSUFFICIENT.  PETITIONER WAS UNFAMILIAR WITH THE AREA AND ITS
HAZARDS; IF THERE WAS A SIGN WARNING OF THE DANGER, HE DID NOT SEE IT;
NO EFFORT WAS MADE TO WARN HIM PERSONALLY.  THE NEARNESS OF THE TRACK
TO THE BUILDING CREATED AN UNSAFE PLACE FOR WORK.  THOUGH THE ENGINEER
WAS AN EXPERIENCED RAILROAD WORKER THOROUGHLY FAMILIAR WITH THIS
PARTICULAR SPUR, AND THOUGH IT WAS HIS DUTY TO WATCH PETITIONER
CONTINUOUSLY OR STOP THE ENGINE,  FN1  HE FAILED EITHER TO WARN
PETITIONER OR TO STOP IN TIME TO AVERT THE TRAGEDY.  DURING THE
OPERATION THE ENGINEER COULD SEE THE RIGHT SIDE OF PETITIONER AND WHEN
HE SAW PETITIONER'S RIGHT FOOT TWISTED ON THE GROUND, HE STOPPED THE
TRAIN. 

RESPONDENT'S EVIDENCE, ON THE OTHER HAND, TENDED TO ESTABLISH THE
FOLLOWING:  PETITIONER WAS INCONSISTENT IN HIS STATEMENTS, AND IT
ACTUALLY APPEARED THAT HE HAD WORKED AROUND THIS SPUR A NUMBER OF
TIMES.  THE CLEARANCE, ONCE ADEQUATE, WAS IMPAIRED BY A SUBSEQUENT
EXTENSION OF THE BUILDING OVER WHICH THE RESPONDENT HAD NO CONTROL. 
NEITHER THE OVERHANG OF THE CAR NOR THE PITCH OF THE CURVE WAS
UNUSUAL.  RESPONDENT MAINTAINED, NEAR THE BUILDING AND SOME EIGHT FEET
ABOVE THE GROUND, A PROMINENT, LEGIBLE SIGN READING "IMPAIRED
CLEARANCE."  IT WAS NOT REQUIRED OR DESIRABLE THAT PETITIONER STAND
BETWEEN THE BUILDING AND THE TRACK; HE COULD EQUALLY WELL HAVE
PERFORMED HIS FUNCTIONS ON THE LEFT, OR SAFE, SIDE OF THE ENGINE.  HE
DID NOT STAND WHERE HE COULD SEE THE SWITCHMAN, AND, IN FACT, IT WAS
NOT NECESSARY FOR HIM TO RELAY SIGNALS FROM THE SWITCHMAN SINCE THE
ENGINEER WOULD BE IN A POSITION TO WATCH THE SWITCHMAN HIMSELF WHEN THE
CAR APPROACHED THE LOADING PLATFORM.  THE ENGINEER HAD NOT WORKED ON
THE GROUND AND WAS NOT AWARE OF THE PRECISE HAZARD; HIS DISTANCE FROM
THE PETITIONER (ABOUT 60 FEET) AND THE CONFIGURATION OF THE BUILDING
WERE SUCH THAT IT WAS NOT APPARENT THAT THE PETITIONER WAS IN PERIL. 
THAT THE ENGINEER WAS VIGILANT IS SOMEWHAT SUPPORTED BY THE FACT THAT
THE TRAIN WAS MOVING ONLY ONE OR TWO MILES AN HOUR AND THAT HE STOPPED
IT ALMOST INSTANTLY, AND WITHIN A DISTANCE OF 12 OR 14 INCHES, WHEN
PETITIONER WAS PINNED BETWEEN THE CAR AND THE BUILDING. 

FROM THIS EVIDENCE THE JURY MIGHT HAVE CONCLUDED THAT PETITIONER HAD
A SAFE PLACE TO WORK BUT ELECTED TO CHOOSE A DANGEROUS ONE, THAT ANY
DUTY OF WARNING WAS FULLY DISCHARGED BY THE PRESENCE OF THE SIGN, AND
THAT THE ENGINEER HAD NOT BEEN NEGLIGENT IN ANY WAY.  IN THAT VIEW OF
THE CASE THE ACCIDENT WOULD BE AN UNFORESEEABLE, FREAK EVENT OR ONE
CAUSED SOLELY BY PETITIONER'S OWN NEGLIGENCE.  ON THE OTHER HAND, IT
WOULD NOT HAVE BEEN UNREASONABLE FOR THE TRIERS OF FACT TO HAVE
INFERRED THAT IT WAS PROPER AND USUAL PROCEDURE TO WORK ON THE RIGHT
SIDE OF THE ENGINE, THAT THE HAZARD WAS NOT READILY APPARENT AND WAS
ALMOST IN THE NATURE OF A TRAP, THAT WHILE THE SIGN WAS PLACED SO AS TO
BE READILY VISIBLE FROM A TRAIN, IT WAS INSUFFICIENT WARNING TO A MAN
ON THE GROUND, AND THAT CONSEQUENTLY PETITIONER WAS NOT FURNISHED A
SAFE PLACE TO WORK.  FN2  AND THE JURY MIGHT HAVE THOUGHT THAT THE
ENGINEER WAS NEGLIGENT IN FAILING TO PERCEIVE THE PERIL IN TIME TO
AVERT THE ACCIDENT BY A WARNING OR BY STOPPING THE ENGINE.  AGAIN, BOTH
PARTIES MIGHT HAVE BEEN FOUND NEGLIGENT, IN WHICH EVENT IT WOULD HAVE
BEEN THE DUTY OF THE JURY, AS THE TRIAL JUDGE CHARGED, TO RENDER A
VERDICT BASED UPON THE DAMAGES CAUSED BY RESPONDENT'S NEGLIGENCE
DIMINISHED BY THE PROPORTION OF NEGLIGENCE ATTRIBUTABLE TO PETITIONER. 
45 U.S.C. SEC. 53. 

THE ACT DOES NOT MAKE THE EMPLOYER THE INSURER OF THE SAFETY OF HIS
EMPLOYEES WHILE THEY ARE ON DUTY.  THE BASIS OF HIS LIABILITY IS HIS
NEGLIGENCE, NOT THE FACT THAT INJURIES OCCUR.  AND THAT NEGLIGENCE MUST
BE "IN WHOLE OR IN PART" THE CAUSE OF THE INJURY.  45 U.S.C. SEC. 51;
BRADY V. SOUTHERN R. CO., 320 U.S. 476, 484.  WHETHER THOSE STANDARDS
ARE SATISFIED IS A FEDERAL QUESTION, THE RIGHTS CREATED BEING FEDERAL
RIGHTS.  BRADY V. SOUTHERN R. CO., SUPRA; BAILEY V. CENTRAL VERMONT R.
CO., 319 U.S. 350. 

THE CHOICE OF CONFLICTING VERSIONS OF THE WAY THE ACCIDENT HAPPENED,
THE DECISION AS TO WHICH WITNESS WAS TELLING THE TRUTH, THE INFERENCES
TO BE DRAWN FROM UNCONTROVERTED AS WELL AS CONTROVERTED FACTS, ARE
QUESTIONS FOR THE JURY.  TENNANT V. PEORIA & P.U.R. CO., 321 U.S. 29;
LAVENDER V. KURN, SUPRA.  ONCE THERE IS A REASONABLE BASIS IN THE
RECORD FOR CONCLUDING THAT THERE WAS NEGLIGENCE WHICH CAUSED THE
INJURY, IT IS IRRELEVANT THAT FAIR-MINDED MEN MIGHT REACH A DIFFERENT
CONCLUSION.  FOR THEN IT WOULD BE AN INVASION OF THE JURY'S FUNCTION
FOR AN APPELLATE COURT TO DRAW CONTRARY INFERENCES OR TO CONCLUDE THAT
A DIFFERENT CONCLUSION WOULD BE MORE REASONABLE.  LAVENDER V. KURN,
SUPRA, P. 652.  AND WHERE, AS HERE, THE CASE TURNS ON CONTROVERTED
FACTS AND THE CREDIBILITY OF WITNESSES, THE CASE IS PECULIARLY ONE FOR
THE JURY.  WASHINGTON & GEORGETOWN R. CO. V. MCDADE, 135 U.S. 554, 572;
TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54, 68. 

WE THINK THE EVIDENCE RAISED SUBSTANTIAL QUESTIONS FOR THE JURY TO
DETERMINE AND THAT THERE WAS A REASONABLE BASIS FOR THE VERDICT WHICH
IT RETURNED.  REVERSED. 

FN1  THE ENGINEER WAS REQUIRED TO HAVE SOME MEMBER OF THE CREW IN
SIGHT AT ALL TIMES WHEN THE ENGINE WAS IN MOTION.  AT THE TIME OF THE
ACCIDENT THE UNDISPUTED TESTIMONY INDICATED THAT PETITIONER WAS THE
ONLY MEMBER OF THE CREW THAT THE ENGINEER COULD SEE.  THE ENGINEER
TESTIFIED THAT HE WATCHED PETITIONER CONTINUOUSLY. 

FN2  THE DUTY OF THE CARRIER TO FURNISH A SAFE PLACE TO WORK "IS NOT
RELIEVED BY THE FACT THAT THE EMPLOYEE'S WORK AT THE PLACE IN QUESTION
IS FLEETING OR INFREQUENT."  BAILEY V. CENTRAL VERMONT R. CO., 319 U.S.
350, 353. 
..END :





















UNITED STATES V. N.Y. RAYON CO., 329 U.S. 654 


ARGUED JANUARY 8, 1947.  - DECIDED FEBRUARY 3, 1947.  - 105 CT. CL. 606,
64 F.SUPP.  684, REVERSED IN PART. 


1.  THE COURT OF CLAIMS IS PRECLUDED BY SEC. 177(A) OF THE JUDICIAL
CODE FROM AWARDING INTEREST ON CLAIMS FOR REFUNDS OF CUSTOMS-DUTIES,
EVEN THOUGH THE CLAIMS WERE BASED UPON PRE-EXISTING JUDGMENTS OF THE
CUSTOMS COURT, AND EVEN ASSUMING THAT THE GENERAL ACCOUNTING OFFICE HAD
UNREASONABLY DELAYED THE DETERMINATION OF OWNERSHIP OF THE FUNDS.  P.
658. 

2.  APART FROM CONSTITUTIONAL REQUIREMENTS, INTEREST CAN BE RECOVERED
AGAINST THE UNITED STATES ONLY IF EXPRESS CONSENT TO SUCH A RECOVERY
HAS BEEN GIVEN BY CONGRESS.  P. 658. 

3.  THE CONSENT OF CONGRESS TO RECOVERY OF INTEREST AGAINST THE
UNITED STATES MAY BE GIVEN, AS INDICATED BY SEC. 177(A), ONLY BY (1) A
SPECIFIC PROVISION FOR THE PAYMENT OF INTEREST IN A STATUTE, OR (2) AN
EXPRESS STIPULATION FOR THE PAYMENT OF INTEREST IN A CONTRACT DULY
ENTERED INTO BY AGENTS OF THE UNITED STATES.  P. 659. 

4.  SINCE THERE IS NO CONTRACTUAL STIPULATION INVOLVED IN THIS CASE,
AND SINCE THE APPROPRIATION STATUTES WHICH COVER THE REFUNDS HERE IN
ISSUE CONTAIN NO PROVISION FOR THE RECOVERY OF INTEREST, THE
TRADITIONAL IMMUNITY OF THE UNITED STATES, AS CODIFIED IN SEC. 177(A),
APPLIES.  P. 659. 

5.  THAT AN AWARD OF INTEREST ON A CLAIM AGAINST THE UNITED STATES
WOULD BE JUST OR EQUITABLE DOES NOT EMPOWER THE COURT OF CLAIMS TO MAKE
IT.  PP. 659-660. 

6.  ASSUMING THAT OFFICIALS OF THE GENERAL ACCOUNTING OFFICE
UNREASONABLY DELAYED DETERMINATION OF THE OWNERSHIP OF THE FUNDS, THIS
COULD NOT OPERATE AS A CONSENT ON THE PART OF THE UNITED STATES TO
IMPOSITION OF INTEREST.  P. 660. 

7.  THE IMMUNITY ESTABLISHED BY SEC. 177(A) EMBRACES CLAIMS ARISING
OUT OF PRE-EXISTING JUDGMENTS.  P. 661. 

8.  THE ACT OF MARCH 3, 1875, AS AMENDED BY THE ACT OF MARCH 3,
1933(31 U.S.C. SEC. 227), RELATES SOLELY TO CASES WHERE THE GOVERNMENT
ASSERTS A SET-OFF AGAINST A JUDGMENT CREDITOR, AND IS INAPPLICABLE IN
THE CIRCUMSTANCES HERE.  P. 662. 

9.  COURTS LACK THE POWER TO AWARD INTEREST AGAINST THE UNITED STATES
ON THE BASIS OF WHAT THEY MAY CONSIDER TO BE SOUND POLICY.  P. 663. 

UNITED STATES V. N.Y. RAYON IMPORTING CO., INC. (#2) ET AL. 

NO. 94.  CERTIORARI TO THE COURT OF CLAIMS.* 

*TOGETHER WITH NO. 96, N.Y. RAYON IMPORTING CO., INC. (#2) ET AL. V.
UNITED STATES, ALSO ON CERTIORARI TO THE COURT OF CLAIMS. 

FROM A JUDGMENT OF THE COURT OF CLAIMS, WHICH INCLUDED AN AWARD OF
INTEREST, 105 CT. CL. 606, 64 F.SUPP.  684, THE UNITED STATES AND THE
CLAIMANTS SOUGHT REVIEW ON CROSS-PETITIONS FOR CERTIORARI, WHICH THIS
COURT GRANTED.  329 U.S. 699.  IN NO. 94, THE JUDGMENT IS REVERSED SO
FAR AS IT INCLUDES INTEREST.  IN NO. 96, THE WRIT OF CERTIORARI IS
DISMISSED.  P. 663. 

OPINION OF THE COURT BY MR. JUSTICE MURPHY, ANNOUNCED BY MR. JUSTICE
RUTLEDGE. 

THIS CASE INVOLVES ANOTHER IMPACT OF SEC. 177(A) OF THE JUDICIAL CODE
FN1  ON THE POWER OF THE COURT OF CLAIMS TO AWARD INTEREST IN A
JUDGMENT AGAINST THE UNITED STATES. 

THE N.Y. RAYON IMPORTING CO., INC., (RAYON #1) AND THE NYRAYCO
IMPORTING & CONVERTING CORPORATION (NYRAYCO) WERE ENGAGED IN THE
IMPORTATION OF RAYON YARN.  BETWEEN 1925 AND 1929 THEY PAID CUSTOMS
DUTIES ON SUCH IMPORTATIONS WHICH THEY CLAIMED WERE ERRONEOUS.  PRIOR
TO MARCH 1, 1930, THEY FILED PROTESTS WITH THE COLLECTOR OF CUSTOMS IN
ACCORDANCE WITH APPLICABLE TARIFF ACT PROVISIONS, WHICH RESULTED IN THE
INSTITUTION OF ACTIONS IN THE UNITED STATES CUSTOMS COURT. 

ON MARCH 1, 1930, THE N.Y. RAYON IMPORTING CO., INC., (RAYON #2) WAS
INCORPORATED FOR THE PURPOSE OF ACQUIRING ALL THE ASSETS AND ASSUMING
ALL THE LIABILITIES OF RAYON #1, NYRAYCO AND TWO OTHER CORPORATIONS IN
THE RAYON BUSINESS.  AS A PART OF THIS REORGANIZATION, RAYON #1 WAS
DISSOLVED AS OF MARCH 1, 1930, THE NEW YORK SECRETARY OF STATE ISSUING
A CERTIFICATE OF DISSOLUTION ON THAT DATE. 

RAYON #2 WAS VOLUNTARILY DISSOLVED ON JANUARY 9, 1931, IN ACCORDANCE
WITH NEW YORK LAW.  NYRAYCO WAS DISSOLVED ON DECEMBER 16, 1935, BY
PROCLAMATION FOR NONPAYMENT OF NEW YORK FRANCHISE TAXES. 

IN 1937, LONG AFTER THESE THREE CORPORATIONS WERE DISSOLVED, THE
CUSTOMS COURT RENDERED DECISIONS SUSTAINING THE PROTESTS WHICH RAYON #1
AND NYRAYCO HAD FILED IN CONNECTION WITH THE DUTIES ON RAYON YARN
IMPORTED BETWEEN 1925 AND 1929.  A RELIQUIDATION OF THE CUSTOMS ENTRIES
WAS DIRECTED.  ON RELIQUIDATION, THE COLLECTOR OF CUSTOMS ASCERTAINED
THAT A REFUND OF $362,482.71 WAS PAYABLE TO RAYON #1 AND $30,809.75 TO
NYRAYCO.  CHECKS PAYABLE TO THOSE CORPORATIONS WERE DRAWN, BUT SINCE
THE CORPORATIONS HAD BEEN DISSOLVED THE COLLECTOR CAUSED THE CHECKS TO
BE TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE "FOR LAWFUL
DISPOSITION."  REPRESENTATIVES OF RAYON #2 THEREAFTER REQUESTED THE
GENERAL ACCOUNTING OFFICE TO DELIVER THESE CHECKS TO THEM; THIS REQUEST
WAS DENIED AND THE COMPTROLLER GENERAL DEPOSITED THE PROCEEDS OF THE
CHECKS IN THE TREASURY IN A TRUST FUND ENTITLED "OUTSTANDING
LIABILITIES 1938," PURSUANT TO LAW.  FN2 

SEVERAL UNSUCCESSFUL ATTEMPTS WERE MADE BY THE REPRESENTATIVES OF THE
THREE DISSOLVED CORPORATIONS TO OBTAIN THE MONEY IN THE TRUST FUND. 
FIRST, A CONSENT DECREE WAS ENTERED IN A DECLARATORY JUDGMENT
PROCEEDING IN THE SUPREME COURT OF THE STATE OF NEW YORK ADJUDICATING
THAT, AS AMONG THE THREE DISSOLVED CORPORATIONS, RAYON #2 WAS THE OWNER
OF THESE CUSTOMS REFUNDS OR THE PROCEEDS THEREOF.  FN3  BUT THE GENERAL
ACCOUNTING OFFICE REFUSED TO MAKE PAYMENT WHEN CONFRONTED WITH THIS
DECREE.  THEREAFTER, ON FEBRUARY 26, 1943, ATTORNEYS FOR THE THREE
DISSOLVED CORPORATIONS SUGGESTED TO THE COMPTROLLER GENERAL THAT THE
MONEY BE RELEASED TO RAYON #1 AND NYRAYCO WITH THE CONSENT OF RAYON #2,
EACH CORPORATION BEING REPRESENTED BY ITS DIRECTOR OR DIRECTORS AS
TRUSTEES IN LIQUIDATION.  THE COMPTROLLER GENERAL REJECTED THIS
PROPOSAL AND STATED THAT PAYMENT WOULD BE PERMITTED ONLY UPON FINAL
JUDGMENT BY A COURT OF COMPETENT JURISDICTION CONCLUDING THE ISSUE OF
OWNERSHIP.  HE SUGGESTED THAT A SUIT BE BROUGHT FOR THIS PURPOSE IN THE
COURT OF CLAIMS. 

RAYON #2 AND ITS LIQUIDATING DIRECTORS AND TRUSTEES THEN BROUGHT THIS
SUIT IN THE COURT OF CLAIMS, CLAIMING THAT RAYON #2 CONTINUED TO EXIST
FOR THE PURPOSE OF COLLECTING AND DISTRIBUTING ITS ASSETS AND THAT IT
WAS THE OWNER OF THE FUNDS IN ISSUE.  RAYON #1 AND NYRAYCO ALSO BROUGHT
SUITS IN THE COURT OF CLAIMS; THEY CLAIMED THE AMOUNTS OF THEIR
RESPECTIVE REFUNDS AND ALLEGED THAT OWNERSHIP REMAINED IN THEM.  AFTER
CONSIDERATION OF ALL THREE CLAIMS,  FN4  THE COURT HELD THAT THE RIGHTS
OF RAYON #1 AND NYRAYCO HAD BEEN TAKEN OVER BY RAYON #2 AND ITS
LIQUIDATING DIRECTORS AND TRUSTEES, WHO WERE THUS ENTITLED TO RECOVER
THE AMOUNTS HELD IN TRUST BY THE UNITED STATES.  64 F.SUPP.  684.  AS A
PART OF ITS JUDGMENT, HOWEVER, THE COURT OF CLAIMS AWARDED 6% INTEREST
ON THE TOTAL FUND, SUCH INTEREST TO RUN FROM APRIL 19, 1941, THE DATE
OF AN AMENDMENT TO THE NEW YORK TAX LAW WHICH RETROACTIVELY CLARIFIED
THE CAPACITY TO SUE OF INVOLUNTARILY DISSOLVED CORPORATIONS.  FN5 

WE ISSUED A WRIT OF CERTIORARI IN NO. 94, ON PETITION OF THE UNITED
STATES, TO REVIEW THE ACTION OF THE COURT OF CLAIMS IN AWARDING SUCH
INTEREST.  AT THE SAME TIME, WE ISSUED A WRIT OF CERTIORARI IN NO. 96
ON A CROSS-PETITION OF RAYON #2 AND ITS LIQUIDATING DIRECTORS AND
TRUSTEES URGING THAT INTEREST SHOULD HAVE BEEN ALLOWED FROM THE TIME OF
THE ISSUANCE OF THE REFUND CHECKS IN 1937 AND 1938 RATHER THAN FROM
APRIL 19, 1941. 

IN OUR OPINION, SEC. 177(A) OF THE JUDICIAL CODE PROHIBITS THE AWARD
OF ANY INTEREST UNDER THE CIRCUMSTANCES OF THIS CASE.  SECTION 177(A)
PROVIDES THAT "NO INTEREST SHALL BE ALLOWED ON ANY CLAIM UP TO THE TIME
OF THE RENDITION OF JUDGMENT BY THE COURT OF CLAIMS, UNLESS UPON A
CONTRACT EXPRESSLY STIPULATING FOR THE PAYMENT OF INTEREST, ..."  AS WE
RECENTLY POINTED OUT IN UNITED STATES V. THAYER-WEST POINT HOTEL CO.,
329 U.S. 585, THIS PROVISION CODIFIES THE TRADITIONAL RULE REGARDING
THE IMMUNITY OF THE UNITED STATES FROM LIABILITY FOR INTEREST ON UNPAID
ACCOUNTS OR CLAIMS.  IN OTHER WORDS, IN THE ABSENCE OF CONSTITUTIONAL
REQUIREMENTS, INTEREST CAN BE RECOVERED AGAINST THE UNITED STATES ONLY
IF EXPRESS CONSENT TO SUCH A RECOVERY HAS BEEN GIVEN BY CONGRESS.  AND
CONGRESS HAS INDICATED IN SEC. 177(A) THAT ITS CONSENT CAN TAKE ONLY
TWO FORMS:  (1) A SPECIFIC PROVISION FOR THE PAYMENT OF INTEREST IN A
STATUTE; (2) AN EXPRESS STIPULATION FOR THE PAYMENT OF INTEREST IN A
CONTRACT DULY ENTERED INTO BY AGENTS OF THE UNITED STATES.  THUS THERE
CAN BE NO CONSENT BY IMPLICATION OR BY USE OF AMBIGUOUS LANGUAGE.  NOR
CAN AN INTENT ON THE PART OF THE FRAMERS OF A STATUTE OR CONTRACT TO
PERMIT THE RECOVERY OF INTEREST SUFFICE WHERE THE INTENT IS NOT
TRANSLATED INTO AFFIRMATIVE STATUTORY OR CONTRACTUAL TERMS.  THE
CONSENT NECESSARY TO WAIVE THE TRADITIONAL IMMUNITY MUST BE EXPRESS,
AND IT MUST BE STRICTLY CONSTRUED.  TILLSON V. UNITED STATES, 100 U.S.
43; UNITED STATES V. THAYER-WEST POINT HOTEL CO., SUPRA. 

TESTED BY THOSE STANDARDS, THE AWARD OF INTEREST IN THIS CASE CANNOT
BE SUSTAINED.  THERE IS OBVIOUSLY NO CONTRACTUAL STIPULATION INVOLVED. 
AND THE APPROPRIATION STATUTES WHICH COVER THE REFUNDS HERE IN ISSUE
CONTAIN NO PROVISION WHATEVER FOR THE RECOVERY OF INTEREST.  ACT OF MAY
14, 1937, 50 STAT. 137, 142; ACT OF JUNE 25, 1938, 52 STAT. 1114,
1149.  THE TRADITIONAL IMMUNITY OF THE UNITED STATES, AS CODIFIED IN
SEC. 177(A), ACCORDINGLY APPLIES. 

THE COURT OF CLAIMS, WITHOUT MAKING A REFERENCE TO SEC. 177(A),
SOUGHT TO JUSTIFY ITS AWARD OF INTEREST ON WHAT IT THOUGHT "WOULD BE
RIGHT OR JUST."  IT FELT THAT THE OFFICIALS OF THE GENERAL ACCOUNTING
OFFICE HAD DELAYED TOO LONG IN DETERMINING THE OWNERSHIP OF THE REFUND
CLAIMS AND THAT, AT THE VERY LEAST, THEY COULD HAVE SUGGESTED AT AN
EARLIER DATE THAT A SUIT IN THE COURT OF CLAIMS WAS NECESSARY. 
INASMUCH AS IT WAS KNOWN SINCE THE TIME OF THE CUSTOMS COURT'S
DECISIONS IN 1937 THAT THE MONEY DID NOT BELONG TO THE GOVERNMENT, THE
COURT OF CLAIMS BELIEVED THAT IT WAS ONLY FAIR THAT THE TRUE OWNERS GET
INTEREST FROM THE TIME WHEN ALL DEFECTS AND UNCERTAINTIES WERE REMOVED
IN NEW YORK AS TO THE CAPACITY OF DISSOLVED CORPORATIONS TO MAINTAIN
SUITS OR TO BE SUED.  FN6 

BUT ASSUMING THAT THE EQUITIES OF THE SITUATION ALL FAVOR THE OWNERS
OF THE REFUND CLAIMS, THE COURT OF CLAIMS DID NOT THEREBY ACQUIRE POWER
TO CARVE OUT AN IMPLIED EXCEPTION TO THE PLAIN WORDS OF SEC. 177(A). 
HAD CONGRESS DESIRED TO PERMIT THE RECOVERY OF INTEREST IN SITUATIONS
WHERE THE COURT OF CLAIMS FELT IT JUST OR EQUITABLE, IT COULD HAVE SO
PROVIDED.  THE ABSENCE OF SUCH A PROVISION IS CONCLUSIVE EVIDENCE THAT
THE COURT LACKS ANY POWER OF THAT NATURE.  INDEED, ANY OTHER CONCLUSION
WOULD PERMIT THE COURT OF CLAIMS TO SUPPLY THE CONSENT WHICH ONLY
CONGRESS CAN GIVE TO THE IMPOSITION OF INTEREST AGAINST THE UNITED
STATES. 

BY THE SAME TOKEN, IF WE ASSUME THAT THE OFFICIALS OF THE GENERAL
ACCOUNTING OFFICE UNREASONABLY DELAYED THE DETERMINATION OF OWNERSHIP
OF THE FUNDS, SUCH ACTION OR INACTION COULD NOT OPERATE AS A CONSENT ON
THE PART OF THE UNITED STATES.  TILLSON V. UNITED STATES, SUPRA.  IT
HAS LONG BEEN SETTLED THAT OFFICERS OF THE UNITED STATES POSSESS NO
POWER THROUGH THEIR ACTIONS TO WAIVE AN IMMUNITY OF THE UNITED STATES
OR TO CONFER JURISDICTION ON A COURT IN THE ABSENCE OF SOME EXPRESS
PROVISION BY CONGRESS.  CARR V. UNITED STATES, 98 U.S. 433; STANLEY V.
SCHWALBY, 162 U.S. 255; MINNESOTA V. UNITED STATES, 305 U.S. 382;
UNITED STATES V. SHAW, 309 U.S. 495.  THE SAME RULE APPLIES HERE.  ONLY
CONGRESS CAN TAKE THE NECESSARY STEPS TO WAIVE THE IMMUNITY OF THE
UNITED STATES FROM LIABILITY FOR INTEREST ON UNPAID CLAIMS.  CF. SMYTH
V. UNITED STATES, 302 U.S. 329, 353. 

THE OWNERS OF THE REFUND CLAIMS, HOWEVER, SEEK TO AVOID THE EFFECT OF
SEC. 177(A) BY URGING THAT IT APPLIES ONLY TO ORIGINAL CLAIMS WHICH
HAVE NOT PREVIOUSLY BEEN REDUCED TO JUDGMENT.  THIS PROCEEDING, IT IS
SAID, IS BASED UPON THE PRE-EXISTING JUDGMENTS OF THE CUSTOMS COURT,
THEREBY PRECLUDING THE APPLICATION OF SEC. 177(A).  WE DO NOT PAUSE
HERE TO INQUIRE INTO THE NATURE AND EFFECT OF THE DECISIONS RENDERED BY
THE CUSTOMS COURT OR THE JURISDICTION OF THE COURT OF CLAIMS TO
ENTERTAIN SUITS BASED UPON PRE-EXISTING JUDGMENTS.  IT IS ENOUGH TO
NOTE THAT THE TRADITIONAL RULE EMBODIED IN SEC. 177(A) IS A COMPLETE
ONE COVERING ALL TYPES OF CLAIMS, INCLUDING THOSE ARISING OUT OF PRE
EXISTING JUDGMENTS.  AS WE HAVE SEEN, ANY EXCEPTION TO THAT RULE MUST
BE GROUNDED UPON AN EXPRESS PROVISION IN A STATUTE OR CONTRACT.  IT
FOLLOWS THAT ANY EXCEPTION RELATING TO PRE-EXISTING JUDGMENTS MUST BE
TRACED TO SPECIFIC LANGUAGE IN A CONTRACT OR SOME OTHER STATUTE. 
SEC. 226. 

IN THIS CONNECTION, THE OWNERS OF THE REFUND CLAIMS POINT TO THE ACT
OF MARCH 3, 1875, AS AMENDED IN 1933.  FN7  THAT ACT DIRECTS THE
COMPTROLLER GENERAL TO WITHHOLD PAYMENT FROM A JUDGMENT CREDITOR OF THE
UNITED STATES, IF SUCH CREDITOR IS INDEBTED IN TURN TO THE UNITED
STATES, UNTIL THE INDEBTEDNESS IS SATISFIED.  THE COMPTROLLER GENERAL
IS TO CAUSE SUIT TO BE BROUGHT ON THE GOVERNMENT'S CROSS DEBT IF THE
JUDGMENT CREDITOR DENIES THE INDEBTEDNESS.  THE ACT THEN EXPRESSLY
PERMITS 6% INTEREST TO BE PAID TO THE JUDGMENT CREDITOR FOR THE PERIOD
OF THE WITHHOLDING IF THE GOVERNMENT FAILS TO WIN ITS SUIT AND TO
SUBSTANTIATE ITS ASSERTED SET-OFF.  THUS TO THAT LIMITED EXTENT THE ACT
OF MARCH 3, 1875, MARKS AN EXCEPTION TO THE TRADITIONAL RULE SET FORTH
IN SEC. 177(A).  SEE, FOR EXAMPLE, AMERICAN POTASH CO. V. UNITED
STATES, 80 CT. CL. 160, 8 F.SUPP.  717; STEWART & CO. V. UNITED STATES,
71 CT. CL. 126. 

BUT THE INAPPLICABILITY OF THAT ACT TO THE FACTS OF THIS CASE IS AT
ONCE APPARENT.  THE ACT RELATES SOLELY TO THE SITUATION WHERE THE
GOVERNMENT ASSERTS A SET-OFF AGAINST A JUDGMENT CREDITOR.  NO SUCH SET
OFF IS HERE ASSERTED; THERE IS NOTHING MORE THAN A WITHHOLDING OF
PAYMENT BY THE GOVERNMENT UNTIL AN ASCERTAINMENT OF OWNERSHIP.  IN
FACT, THERE IS NO REAL CLAIM THAT THE SITUATION IN THE INSTANT CASE CAN
BE FITTED WITHIN THE TERMS OF THE ACT OF MARCH 3, 1875.  THERE IS
MERELY AN ARGUMENT THAT THE POLICY OF THAT ACT IN PROVIDING FOR THE
PAYMENT OF INTEREST WHERE THE WITHHOLDING RESULTS FROM AN ERRONEOUS
BELIEF IN THE EXISTENCE OF A CROSS-INDEBTEDNESS APPLIES WITH EQUAL
FORCE WHERE THE WITHHOLDING RESULTS FROM AN ATTEMPT TO DETERMINE
OWNERSHIP OF A CLAIM.  BUT THE IMMUNITY OF THE UNITED STATES FROM
LIABILITY FOR INTEREST IS NOT TO BE WAIVED BY POLICY ARGUMENTS OF THIS
NATURE.  COURTS LACK THE POWER TO AWARD INTEREST AGAINST THE UNITED
STATES ON THE BASIS OF WHAT THEY THINK IS OR IS NOT SOUND POLICY.  WE
REITERATE THAT ONLY EXPRESS LANGUAGE IN A STATUTE OR CONTRACT CAN
JUSTIFY THE IMPOSITION OF SUCH INTEREST.  SUCH LANGUAGE IS ABSENT IN
THIS INSTANCE. 

WE ACCORDINGLY REVERSE THE JUDGMENT OF THE COURT OF CLAIMS IN NO. 94
TO THE EXTENT THAT IT INCLUDES AN AWARD OF INTEREST.  AND SINCE IT
BECOMES UNNECESSARY TO CONSIDER THE MERITS OF THE CROSS-CLAIMS, THE
WRIT OF CERTIORARI PREVIOUSLY ISSUED IN NO. 96 IS DISMISSED.  SO
ORDERED. 

FN1  28 U.S.C. SEC. 284(A).    FN2  SECTION 21 OF THE ACT OF JUNE 26,
1934, C. 756, 48 STAT. 1235, 31 U.S.C. SEC. 725T. 

FN3  THIS NON-ADVERSARY PROCEEDING ONLY AFFECTED RIGHTS AS BETWEEN
RAYON #1 AND NYRAYCO, ON THE ONE HAND, AND RAYON #2 ON THE OTHER.  IT
PROVIDED THE GOVERNMENT NO PROTECTION AS AGAINST THE OTHER POSSIBLE
CLAIMANTS WHO WERE LATER IMPLEADED AND CITED IN THE COURT OF CLAIMS
ACTION.  SEE FOOTNOTE 4. 

FN4  THE THREE SUITS WERE CONSOLIDATED.  IN ALL THREE CASES, THE
SOCIETE POUR NOUVEAUX PLACEMENTS DE CAPITAUX WAS IMPLEADED AS
PLAINTIFF.  IT FILED A DISCLAIMER OF INTEREST AND THE COURT OF CLAIMS
DISMISSED "ALL CLAIMS OF INTEREST" WHICH IT HAD.  SEVERAL OTHER PERSONS
AND COMPANIES WERE NAMED BY THE UNITED STATES AS HAVING POSSIBLE
CLAIMS, BUT NONE OF THEM ASSERTED ANY CLAIMS OR FILED ANY INTERVENING
PETITIONS; THE COURT DISMISSED "ALL CLAIMS OF INTEREST" AS TO THEM. 

FN5  APRIL 19, 1941, WAS THE DATE WHEN THE GOVERNOR OF NEW YORK
APPROVED AN AMENDMENT TO SEC. 203A OF THE NEW YORK TAX LAW, REMOVING
ALL POSSIBLE QUESTION WHETHER CORPORATIONS WHICH HAD PREVIOUSLY AND
INVOLUNTARILY BEEN DISSOLVED UNDER THE NEW YORK TAX LAW FOR NON-PAYMENT
OF FRANCHISE TAXES HAD THE RIGHT TO MAINTAIN SUITS.  THIS HAD
RELEVANCE, HOWEVER, ONLY TO NYRAYCO.  RAYON #1 AND RAYON #2 WERE
VOLUNTARILY DISSOLVED IN ACCORDANCE WITH SEC. 105 OF THE NEW YORK STOCK
CORPORATION LAW.  THEIR RIGHT TO MAINTAIN SUIT TO COLLECT THEIR ASSETS
WAS NEVER QUESTIONED. 

FN6  RAYON #2 AND ITS LIQUIDATING DIRECTORS AND TRUSTEES CLAIM THAT
THE DATE OF APRIL 19, 1941, HAS NO RELEVANCE WHATEVER TO THE CLAIM OF
RAYON #1.  SEE FOOTNOTE 5.  AND THEY CLAIM THAT THIS DATE HAS NO PROPER
RELATION TO THE NYRAYCO CLAIM SINCE THE GOVERNMENT MADE NO OBJECTION TO
NYRAYCO'S CAPACITY TO SUE UNTIL SEVERAL YEARS AFTER THE DECISIONS OF
THE CUSTOMS COURT AND AFTER CHECKS IN ITS NAME HAD BEEN DRAWN BY THE
GOVERNMENT. 

FN7  ACT OF MARCH 3, 1875, 18 STAT. 481, AS AMENDED BY THE ACT OF
MARCH 3, 1933, C. 212, TITLE II, SEC. 13, 47 STAT. 1516, 31 U.S.C. SEC.
227.  THIS PROVIDES: 

"WHEN ANY FINAL JUDGMENT RECOVERED AGAINST THE UNITED STATES DULY
ALLOWED BY LEGAL AUTHORITY SHALL BE PRESENTED TO THE COMPTROLLER
GENERAL OF THE UNITED STATES FOR PAYMENT, AND THE PLAINTIFF THEREIN
SHALL BE INDEBTED TO THE UNITED STATES IN ANY MANNER, WHETHER AS
PRINCIPAL OR SURETY, IT SHALL BE THE DUTY OF THE COMPTROLLER GENERAL OF
THE UNITED STATES TO WITHHOLD PAYMENT OF AN AMOUNT OF SUCH JUDGMENT
EQUAL TO THE DEBT THUS DUE TO THE UNITED STATES; AND IF SUCH PLAINTIFF
ASSENTS TO SUCH SET-OFF, AND DISCHARGES HIS JUDGMENT OR AN AMOUNT
THEREOF EQUAL TO SAID DEBT, THE COMPTROLLER GENERAL OF THE UNITED
STATES SHALL EXECUTE A DISCHARGE OF THE DEBT DUE FROM THE PLAINTIFF TO
THE UNITED STATES.  BUT IF SUCH PLAINTIFF DENIES HIS INDEBTEDNESS TO
THE UNITED STATES, OR REFUSES TO CONSENT TO THE SET-OFF, THEN THE
COMPTROLLER GENERAL OF THE UNITED STATES SHALL WITHHOLD PAYMENT OF SUCH
FURTHER AMOUNT OF SUCH JUDGMENT, AS IN HIS OPINION WILL BE SUFFICIENT
TO COVER ALL LEGAL CHARGES AND COSTS IN PROSECUTING THE DEBT OF THE
UNITED STATES TO FINAL JUDGMENT.  AND IF SUCH DEBT IS NOT ALREADY IN
SUIT, IT SHALL BE THE DUTY OF THE COMPTROLLER GENERAL OF THE UNITED
STATES TO CAUSE LEGAL PROCEEDINGS TO BE IMMEDIATELY COMMENCED TO
ENFORCE THE SAME, AND TO CAUSE THE SAME TO BE PROSECUTED TO FINAL
JUDGMENT WITH ALL REASONABLE DISPATCH.  AND IF IN SUCH ACTION JUDGMENT
SHALL BE RENDERED AGAINST THE UNITED STATES, OR THE AMOUNT RECOVERED
FOR DEBT AND COSTS SHALL BE LESS THAN THE AMOUNT SO WITHHELD AS BEFORE
PROVIDED, THE BALANCE SHALL THEN BE PAID OVER TO SUCH PLAINTIFF BY SUCH
COMPTROLLER GENERAL OF THE UNITED STATES WITH 6 PER CENTUM INTEREST
THEREON FOR THE TIME IT HAS BEEN WITHHELD FROM THE PLAINTIFF." 
..END :




DE MEERLEER V. MICHIGAN, 329 U.S. 663 


NO. 140.  ARGUED JANUARY 6, 1947.  - DECIDED FEBRUARY 3, 1947.  - 313
MICH. 548, 21 N.W.2D 849, REVERSED. 


ON THE SAME DAY THAT AN INFORMATION WAS FILED IN A STATE COURT
CHARGING HIM WITH MURDER, A 17-YEAR-OLD DEFENDANT WAS ARRAIGNED,
CONVICTED ON HIS PLEA OF GUILTY, AND SENTENCED TO LIFE IMPRISONMENT. 
HE HAD NO COUNSEL AND NONE WAS OFFERED OR ASSIGNED; THE COURT DID NOT
APPRISE HIM OF THE CONSEQUENCES OF HIS PLEA OF GUILTY; NO EVIDENCE WAS
OFFERED IN HIS BEHALF AND NONE OF THE STATE'S WITNESSES WERE CROSS
EXAMINED.  HELD THAT HE WAS DEPRIVED OF RIGHTS ESSENTIAL TO A FAIR
HEARING UNDER THE FEDERAL CONSTITUTION.  P. 665. 

DE MEERLEER V. MICHIGAN. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

A STATE COURT IN WHICH HE HAD BEEN CONVICTED AND SENTENCED FOR MURDER
DENIED PETITIONER'S MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR A NEW
TRIAL.  THE STATE SUPREME COURT AFFIRMED.  313 MICH. 548, 21 N.W.2D
849.  THIS COURT GRANTED CERTIORARI.  329 U.S. 702.  REVERSED, P. 665. 

PER CURIAM. 

IN CONFORMITY WITH MICHIGAN PROCEDURE, PETITIONER MOVED FOR LEAVE TO
FILE A DELAYED MOTION FOR NEW TRIAL IN THE COURT IN WHICH HE HAD BEEN
CONVICTED OF FIRST-DEGREE MURDER.  SERIOUS IMPAIRMENT OF HIS
CONSTITUTIONAL RIGHTS AT THE ARRAIGNMENT AND TRIAL WERE ASSERTED AS
GROUNDS FOR THE MOTION.  THE TRIAL COURT DENIED THE MOTION, AND THE
SUPREME COURT OF MICHIGAN ON APPEAL AFFIRMED THAT RULING.  313 MICH.
548, 21 N.W.2D 849.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF
THE CONSTITUTIONAL ISSUES PRESENTED. 

THE FACTS ARE NOT IN DISPUTE.  ON MAY 16, 1932, AN INFORMATION WAS
FILED IN THE CIRCUIT COURT OF LENAWEE COUNTY, MICHIGAN, CHARGING
PETITIONER, THEN SEVENTEEN YEARS OF AGE, AND ONE VIRGIL SCOTT WITH THE
CRIME OF MURDER.  ON THE SAME DAY, PETITIONER WAS ARRAIGNED, TRIED,
CONVICTED OF FIRST-DEGREE MURDER AND SENTENCED TO LIFE IMPRISONMENT. 
THE RECORD INDICATES THAT PETITIONER WAS WITHOUT LEGAL ASSISTANCE
THROUGHOUT ALL THESE PROCEEDINGS AND WAS NEVER ADVISED OF HIS RIGHT TO
COUNSEL.  THE COURT DID NOT EXPLAIN THE CONSEQUENCES OF THE PLEA OF
GUILTY, AND THE RECORD INDICATES CONSIDERABLE CONFUSION IN PETITIONER'S
MIND AT THE TIME OF THE ARRAIGNMENT AS TO THE EFFECT OF SUCH A PLEA. 
NO EVIDENCE IN PETITIONER'S BEHALF WAS INTRODUCED AT THE TRIAL AND NONE
OF THE STATE'S WITNESSES WERE SUBJECTED TO CROSS-EXAMINATION. 

AFTER REVIEWING THE FOREGOING FACTS, THE SUPREME COURT OF MICHIGAN
DETERMINED THAT THE RECORD REVEALED NO DEPRIVATION OF PETITIONER'S
CONSTITUTIONAL RIGHTS.  THE COURT INDICATED THAT IT HAD GIVEN
CONSIDERATION TO THE CASE OF HAWK V. OLSON, 326 U.S. 271(1945), AND THE
AUTHORITIES CITED THEREIN, BUT CONCLUDED THAT THE RULE OF THE MICHIGAN
CASES WAS DETERMINATIVE.  SEE PEOPLE V. WILLIAMS, 225 MICH. 133, 195
N.W. 818(1923).  IN THIS THERE WAS ERROR. 

HERE A SEVENTEEN-YEAR-OLD DEFENDANT, CONFRONTED BY A SERIOUS AND
COMPLICATED CRIMINAL CHARGE, WAS HURRIED THROUGH UNFAMILIAR LEGAL
PROCEEDINGS WITHOUT A WORD BEING SAID IN HIS DEFENSE.  AT NO TIME WAS
ASSISTANCE OF COUNSEL OFFERED OR MENTIONED TO HIM, NOR WAS HE APPRISED
OF THE CONSEQUENCES OF HIS PLEA.  UNDER THE HOLDINGS OF THIS COURT,
PETITIONER WAS DEPRIVED OF RIGHTS ESSENTIAL TO A FAIR HEARING UNDER THE
FEDERAL CONSTITUTION.  POWELL V. ALABAMA, 287 U.S. 45(1932); WILLIAMS
V. KAISER, 323 U.S. 471(1945); TOMKINS V. MISSOURI, 323 U.S. 485(1945);
WHITE V. RAGEN, 324 U.S. 760(1945); HAWK V. OLSON, SUPRA.  SEE BETTS V.
BRADY, 316 U.S. 455(1942).  REVERSED. 
..END :








PARKER V. FLEMING, 329 U.S. 531 


NO. 80.  ARGUED DECEMBER 18, 1946.  - DECIDED JANUARY 20, 1947.  - 154
F.2D 830, REVERSED. 


UNDER RENT REGULATIONS PROMULGATED PURSUANT TO THE EMERGENCY PRICE
CONTROL ACT, THE PRICE ADMINISTRATOR ISSUED AN ORDER GRANTING TO
LANDLORDS OF RESIDENTIAL PROPERTIES SPECIAL CERTIFICATES AUTHORIZING
EVICTION PROCEEDINGS.  HELD:  THE TENANTS WERE "SUBJECT TO" THE ORDER,
WITHIN THE MEANING OF SEC. 203(A) OF THE ACT, AND HAD A RIGHT TO FILE A
PROTEST WITH THE ADMINISTRATOR; AND WERE ENTITLED, UNDER SEC. 204(A) OF
THE ACT, TO JUDICIAL REVIEW OF THE ADMINISTRATOR'S DISMISSAL OF THEIR
PROTEST.  PP. 533, 538. 

PARKER ET AL. V. FLEMING, TEMPORARY CONTROLS ADMINISTRATOR. 

CERTIORARI TO THE EMERGENCY COURT OF APPEALS. 

THE PRICE ADMINISTRATOR DISMISSED PETITIONERS' PROTEST AGAINST AN
ORDER ISSUED BY HIM UNDER RENT REGULATIONS PROMULGATED PURSUANT TO THE
EMERGENCY PRICE CONTROL ACT.  THE EMERGENCY COURT OF APPEALS DISMISSED
PETITIONERS' COMPLAINT.  154 F.2D 830.  THIS COURT GRANTED CERTIORARI. 
328 U.S. 828.  THE TEMPORARY CONTROLS ADMINISTRATOR WAS SUBSTITUTED FOR
THE PRICE ADMINISTRATOR AS THE RESPONDENT IN THIS COURT.  REVERSED, P.
538. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE TENANTS OF A NEW YORK APARTMENT HOUSE.  THEIR
LANDLORDS APPLIED FOR A CERTIFICATE FROM THE NEW YORK AREA RENT
DIRECTOR AUTHORIZING EVICTION PROCEEDINGS IN THE STATE COURTS.  FN1
PRICE ADMINISTRATOR UNDER AUTHORITY OF SEC. 2 OF THE EMERGENCY PRICE
CONTROL ACT, 56 STAT. 23, 58 STAT. 632, 50 U.S.C. APP. SUPP. V, SEC.
902, PROHIBITS LANDLORDS FROM INSTITUTING SUCH PROCEEDINGS EXCEPT UNDER
CERTAIN SPECIFIC CONDITIONS NOT HERE RELEVANT,  FN2  OR WHEN A SPECIAL
CERTIFICATE AUTHORIZING EVICTION IS ISSUED BY THE AREA RENT DIRECTOR
UPON HIS FINDING, FOR EXAMPLE, THAT FAILURE TO AUTHORIZE EVICTION WOULD
IMPOSE "SUBSTANTIAL HARDSHIP" UPON THE LANDLORDS.  FN3 

IN THIS CASE THE AREA RENT DIRECTOR REFUSED TO ISSUE THE REQUESTED
CERTIFICATE AFTER EXTENSIVE HEARINGS AT WHICH BOTH THE LANDLORDS AND
THE TENANTS PRESENTED EVIDENCE.  DENIAL WAS BASED ON A FINDING THAT THE
LANDLORDS HAD WHOLLY FAILED TO MEET THE REGULATION'S CONDITIONS; THAT
THEIR REQUEST WAS PART OF A CONCERTED PLAN TO EVADE THE PRICE CONTROL
ACT; AND THAT A FRAUD HAD BEEN PERPETRATED AGAINST THE OPA.  THE
REGIONAL RENT DIRECTOR AFFIRMED THIS RULING.  ON PROTEST BY THE
LANDLORDS, THE PRICE ADMINISTRATOR REVERSED THE RULING OF THE AREA
DIRECTOR AND ORDERED THAT THE CERTIFICATE BE ISSUED.  PETITIONERS
THEREUPON FILED A PROTEST OF THEIR OWN WITH THE ADMINISTRATOR.  WHEN
THE ADMINISTRATOR DISMISSED THIS PROTEST, THEY SOUGHT RELIEF IN THE
EMERGENCY COURT OF APPEALS, COMPLAINING THAT THE ADMINISTRATOR'S ORDER
WAS "NOT IN ACCORDANCE WITH LAW" AND WAS "ARBITRARY AND CAPRICIOUS." 
ON MOTION OF THE ADMINISTRATOR, THAT ACTION WAS DISMISSED ON THE GROUND
THAT PETITIONERS WERE NOT "SUBJECT TO" THE ADMINISTRATOR'S ORDER AND
THEREFORE HAD NO RIGHT TO PROTEST OR HAVE JUDICIAL REVIEW OF THE
DISMISSAL OF THEIR PROTEST.  PARKER V. PORTER, 154 F.2D 830.  FN4  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE ISSUE RAISED.  328
U.S. 828. 

PERSON WHO IS AGGRIEVED BY THE DENIAL  ...  OF HIS PROTEST" AGAINST AN
ORDER OF THE PRICE ADMINISTRATOR ISSUED UNDER SEC. 2 OF THE ACT MAY,
UPON COMPLAINT TO THE EMERGENCY COURT OF APPEALS, SECURE A JUDICIAL
REVIEW OF THE ADMINISTRATOR'S DENIAL OF SUCH "PROTEST."  UNDER SEC.
204(B) THAT COURT CAN ENJOIN OR SET ASIDE THE PROTESTED "ORDER" IN
WHOLE OR IN PART ONLY IF IT IS SATISFIED THAT THE ORDER "IS NOT IN
ACCORDANCE WITH LAW, OR IS ARBITRARY OR CAPRICIOUS."  BUT SEC. 203(A)
DENIES THE RIGHT TO MAKE A "PROTEST" UPON WHICH REVIEW MAY BE HAD TO
ALL BUT PERSONS WHO ARE "SUBJECT TO ANY PROVISION OF SUCH  ...
ORDER."  THE EMERGENCY COURT OF APPEALS DID NOT QUESTION THAT THE
PETITIONERS WERE "AGGRIEVED" WITHIN THE MEANING OF SEC. 204(B) BY THE
ADMINISTRATOR'S SPECIAL ORDER AUTHORIZING THEIR LANDLORD TO INSTITUTE
LEGAL PROCEEDINGS TO EVICT THEM FROM THEIR APARTMENTS.  SEE FEDERAL
COMMUNICATIONS COMMISSION V. SANDERS BROS. RADIO STATION, 309 U.S. 470,
476, 477.  REVIEW WAS DENIED SOLELY ON THE GROUND THAT THEY WERE NOT
"SUBJECT TO" THAT ORDER WITHIN THE MEANING OF SEC. 203(A). 

IN DECIDING A CASE CONCERNING REVIEW OF THE ADMINISTRATOR'S ORDER
GRANTING A SPECIAL EXCEPTION TO ONE OF HIS GENERAL REGULATIONS, WE ARE
MINDFUL THAT THE LEGISLATIVE HISTORY OF THE PRICE CONTROL ACT STRONGLY
INDICATES THAT JUDICIAL REVIEW OF THE ADMINISTRATOR'S GENERAL
REGULATIONS AND ORDERS WAS INTENDED BY CONGRESS TO BE LIMITED TO
RELATIVELY FEW OF THE MILLIONS OF PEOPLE WHO WOULD BE MORE OR LESS
AFFECTED BY THEM.  CONGRESS DID NOT PROVIDE FOR PROTEST AND JUDICIAL
REVIEW OF GENERAL PRICE ORDERS BY THE GREAT MASS OF CONSUMERS BECAUSE
OF AN APPREHENSION THAT THIS MIGHT CAUSE DELAY AND DIFFICULTY IN
ADMINISTERING THE PRICE CONTROL ACT WITH THE EFFICIENCY AND EXPEDITION
DEEMED NECESSARY TO ACCOMPLISH ITS BROAD PURPOSE.  FN5  ONLY A FEW
CATEGORIES OF PERSONS WHOM THE ACT AFFECTED AND WHOSE PROTESTS, IF
REVIEWED, WOULD NOT HAVE THESE CONSEQUENCES, WERE SPECIFICALLY
PERMITTED BY THE ACT TO PROTEST AND HAVE GENERAL PRICE ORDERS AFFECTING
THEM JUDICIALLY REVIEWED.  FN6  THE ADMINISTRATOR AND THE COURTS HAVE
ADHERED TO THIS CONGRESSIONAL POLICY.  SEE E.G. YAKUS V. UNITED STATES,
321 U.S. 414; BOWLES V. WILLINGHAM, 321 U.S. 503. 

PROCEDURAL REGULATION NO. 1 OF THE OFFICE OF PRICE ADMINISTRATION, 7
FED. REG. 971, DEFINED A PERSON AS "SUBJECT TO" A GENERAL PRICE
REGULATION OR ORDER, AND THEREFORE ENTITLED TO PROTEST AND OBTAIN
JUDICIAL REVIEW OF IT, ONLY WHEN SUCH REGULATION OR ORDER "PROHIBITS OR
REQUIRES ACTION BY HIM."  THE EMERGENCY COURT OF APPEALS SUSTAINED THE
REGULATION WHICH CONTAINED THIS DEFINITION.  BUKA COAL CO. V. BROWN,
133 F.2D 949, 952.  BUT IN OTHER SPECIAL SITUATIONS NOT DIRECTLY
INVOLVING GENERAL PRICEFIXING ORDERS THE WORDS "SUBJECT TO" HAVE BEEN
CONSTRUED MORE BROADLY BY THE ADMINISTRATOR AND THE EMERGENCY COURT OF
APPEALS. 

REVISED PROCEDURAL REGULATION NO. 1, 7 F.R. 8961, PROMULGATED BY THE
ADMINISTRATOR, PROVIDES THAT AGRICULTURAL PRODUCERS MAY PROTEST AN
ORDER WHICH DENIES THEM A SUBSIDY GRANTED BY CONGRESS AS ONE OF THE
MECHANISMS OF THE PRICE CONTROL PROGRAM, THE REGULATION STATING THAT
SUCH A PRODUCER "SHALL BE CONSIDERED TO BE SUBJECT TO A MAXIMUM PRICE
REGULATION."  AND IN ILLINOIS PACKING CO. V. SNYDER, 151 F.2D 337, THE
EMERGENCY COURT OF APPEALS HELD THAT MEAT PACKERS, DENIED SUCH A
SUBSIDY UNDER REGULATIONS OF THE DEFENSE SUPPLIES CORPORATION
PROMULGATED UNDER THE SAME AUTHORITY ON WHICH OFFICE OF PRICE
ADMINISTRATION ORDERS WERE BASED, WERE SUBJECT TO AND COULD PROTEST
AGAINST SUCH REGULATIONS.  THE COURT THERE SAID THAT: 

"IF ANYBODY COULD BE 'SUBJECT TO' A PROVISION OF THE SUBSIDY
REGULATION, COMPLAINANT CERTAINLY WOULD MEET THIS REQUIREMENT, SINCE IT
CLAIMS TO BE EXCLUDED FROM THE SUBSIDY BY A DISCRIMINATORY AND UNLAWFUL
CONDITION INSERTED IN THE SUBSIDY REGULATION BY AMENDMENT NO. 2.  SINCE
VALIDITY OF ANY REGULATION OR ORDER ISSUED UNDER SECTION 2,' AND SINCE
AMENDMENT NO. 2 IS SUCH A REGULATION OR ORDER, IT IS INADMISSIBLE TO
PUT UPON THE PHRASE 'ANY PERSON SUBJECT TO ANY PROVISION' OF A
REGULATION UNDER SECTION 2 AN INTERPRETATION WHICH WOULD MAKE IT
IMPOSSIBLE FOR ANYONE TO INVOKE OUR JURISDICTION IN THIS TYPE OF CASE,
ESPECIALLY ONE WHO, LIKE COMPLAINANT, IS MOST IMMEDIATELY AND DIRECTLY
PREJUDICED BY THE CHALLENGED PROVISION OF THE SUBSIDY REGULATION." 
ILLINOIS PACKING CO. V. SNYDER, SUPRA, AT 338-339. 

THUS IT APPEARS THAT THE ADMINISTRATOR AND THE EMERGENCY COURT OF
APPEALS HAVE DETERMINED THAT THE QUESTION OF WHETHER A PERSON IS
"SUBJECT TO" AN ORDER IS DEPENDENT TO SOME EXTENT UPON WHETHER THE
ORDER IMMEDIATELY, SUBSTANTIALLY AND ADVERSELY AFFECTS HIM, AS WELL AS
WHETHER THE ORDER REQUIRES OR PROHIBITS ACTION BY HIM.  UNDER THESE
STANDARDS WE THINK THE TENANTS HERE WERE "SUBJECT TO" THE ORDER. 

WHETHER THE REGULATIONS GAVE THE TENANTS A "VESTED RIGHT" TO REMAIN
IN POSSESSION IS NOT DECISIVE OF THEIR RIGHT TO PROTEST OR OBTAIN
JUDICIAL REVIEW.  HOWEVER THAT MAY BE, GENERAL REGULATIONS PROHIBITED
THESE LANDLORDS FROM EVICTING THE TENANTS UNLESS THE ADMINISTRATOR
GRANTED A CERTIFICATE.  THE EMERGENCY PRICE CONTROL ACT WAS INTENDED IN
PART TO PREVENT EXCESSIVE RENTS IN THE PUBLIC INTEREST,  FN7  AND THE
VERY ANTI-EVICTION REGULATIONS UNDER WHICH THE ADMINISTRATOR GRANTED
THE EVICTION CERTIFICATE HERE WERE SPECIFICALLY DESIGNED TO PREVENT
MANIPULATIVE RENTING PRACTICES WHICH WOULD RESULT IN EXCESSIVE RENTS. 
FN8  THOSE REGULATIONS HAVE BEEN HELD VALID BY THE EMERGENCY COURT OF
APPEALS, TAYLOR V. BROWN, 137 F.2D 654, 662-663, AND THEIR VALIDITY IS
NOT HERE CHALLENGED.  IF THESE TENANTS CANNOT "PROTEST" THIS ORDER
ISSUED UNDER THESE REGULATIONS, NO ONE CAN; AND IF THEY CANNOT
CHALLENGE IT IN THE EMERGENCY COURT OF APPEALS, THEY CANNOT EFFECTIVELY
CHALLENGE IT AT ALL. 

WE CANNOT SAY THAT TENANTS WHO ARE ABOUT TO BE EVICTED FROM THEIR
APARTMENTS ON ACCOUNT OF THE ORDER ARE NOT "SUBJECT TO" IT.  WE ARE
PERSUADED THAT THESE TENANTS WOULD BE REQUIRED TO ACT BY THE ISSUANCE
OF THE CERTIFICATE.  THEY WOULD EITHER HAVE TO MOVE THEMSELVES AND
THEIR POSSESSIONS TO ANOTHER ABODE, WHICH MIGHT BE DIFFICULT OR
IMPOSSIBLE TO OBTAIN, OR UNDERTAKE DEFENSE OF EVICTION PROCEEDINGS IN
THE STATE COURTS, WHICH PROCEEDINGS, BUT FOR THE CERTIFICATE, WOULD
HAVE BEEN BARRED BY THE REGULATION PROMULGATED UNDER THE ACT.  FOR THE
SAME REASON, IT SEEMS APPARENT THAT THEY WOULD BE IMMEDIATELY,
SUBSTANTIALLY, AND ADVERSELY AFFECTED BY THE ORDER. 

THIS SITUATION IS ALTOGETHER DIFFERENT, IN TERMS OF ADMINISTRATIVE
COMPLICATIONS AND THE IMPACT OF THE ORDER ON THE INDIVIDUAL, FROM ONE
IN WHICH A CONSUMER MEMBER OF THE PUBLIC WISHES TO ATTACK A GENERAL
PRICE-FIXING REGULATION WHICH WILL REQUIRE HIM TO PAY HIGHER PRICES, OR
EVEN A TENANT TO PAY HIGHER RENT.  FOR THIS REASON, THE LEGISLATIVE
HISTORY RELIED ON BY THE ADMINISTRATOR, THOUGHT TO INDICATE A PURPOSE
NOT TO MAKE SUCH GENERAL PRICE-FIXING ORDERS OPEN TO WIDESPREAD
CHALLENGE, HAS NO RELEVANCY HERE.  WHILE THE SCOPE OF JUDICIAL REVIEW
AUTHORIZED BY THE ACT IS A LIMITED ONE, ILLINOIS PACKING CO. V. SNYDER,
SUPRA AT 339, WE THINK THAT THESE TENANTS WERE ENTITLED TO HAVE THEIR
PROTEST CONSIDERED BY THE ADMINISTRATOR AND THAT THE EMERGENCY COURT OF
APPEALS HAS JURISDICTION OF THEIR COMPLAINT.  REVERSED. 

FN1  THE LANDLORDS HERE CLAIMED TO BE PURCHASERS OF STOCK IN A CO
OPERATIVE APARTMENT CORPORATION WHICH STOCK HOLDING ENTITLED EACH OF
THEM TO POSSESSION OF AN APARTMENT UNDER A PROPRIETARY LEASE. 

FN2  SECTION 6(A) OF THE RENT REGULATIONS FOR NEW YORK CITY DEFENSE
AREA, 8 FED. REG. 13914, AS AMENDED, PROVIDES THAT "NO TENANT SHALL BE
REMOVED FROM ANY HOUSING ACCOMMODATIONS, BY ACTION TO EVICT  ...
UNLESS:"  (1) THE TENANT HAS REFUSED TO RENEW HIS LEASE; (2) THE TENANT
HAS UNREASONABLY REFUSED THE LANDLORD ACCESS TO THE PREMISES; (3) THE
TENANT HAS VIOLATED AN OBLIGATION OF TENANCY OR IS COMMITTING A
NUISANCE; (4) SUBTENANTS OCCUPY THE PREMISES AT THE TIME OF THE
EXPIRATION OF THE PRIME TENANT'S LEASE; (5) THE LANDLORD "HAS AN
IMMEDIATE COMPELLING NECESSITY TO RECOVER POSSESSION  ...  FOR USE AND
OCCUPANCY AS A DWELLING FOR HIMSELF." 

FN3  SECTION 6(B)(3) "APPLIES TO THE ISSUANCE OF A CERTIFICATE FOR
OCCUPANCY OF HOUSING ACCOMMODATIONS IN A STRUCTURE OR PREMISES OWNED OR
LEASED BY A COOPERATIVE CORPORATION  ...  BY A PURCHASER OF STOCK  ...
IN SUCH COOPERATIVE WHO IS ENTITLED BY REASON OF OWNERSHIP OF SUCH
STOCK TO POSSESSION OF SUCH HOUSING ACCOMMODATIONS BY VIRTUE OF A
PROPRIETARY LEASE OR OTHERWISE."  THE PART OF SEC. 6(B)(3) II PERTINENT
HERE PROVIDES THAT WHERE THE CO-OPERATIVE WAS ORGANIZED AFTER FEBRUARY
17, 1945, OR THE EFFECTIVE DATE OF THE REGULATION, "NO CERTIFICATE
SHALL BE ISSUED, UNLESS ON SUCH DATE THE COOPERATIVE WAS IN THE PROCESS
OF ORGANIZATION AND THE ADMINISTRATOR FINDS THAT SUBSTANTIAL HARDSHIP
WOULD RESULT FROM THE FAILURE TO ISSUE A CERTIFICATE  ..." 

FN4  THE ORIGINAL RESPONDENT HERE WAS PAUL A. PORTER, PRICE
ADMINISTRATOR.  THE FUNCTIONS OF HIS OFFICE HAVE BEEN ASSUMED BY PHILIP
B. FLEMING, TEMPORARY CONTROLS ADMINISTRATOR, WHO HAS BEEN SUBSTITUTED
AS RESPONDENT. 

FN5  THE CONGRESSIONAL PURPOSE IN THIS REGARD HAS BEEN SUMMARIZED IN
OUR PREVIOUS DECISIONS IN YAKUS V. UNITED STATES, 321 U.S. 414, 423,
431-433, 439, 441 AND BOWLES V. WILLINGHAM, 321 U.S. 503, 513, 520
521. 

FN6  SECTION 4(A) OF THE ACT LISTS THE CLASSES OF PERSONS TO BE
PUNISHED FOR DISOBEDIENCE OF THE PROVISIONS OF A REGULATION OR ORDER
AND THEREFORE IPSO FACTO "SUBJECT TO" IT AS SELLERS OF COMMODITIES,
BUYERS OF COMMODITIES IN THE COURSE OF BUSINESS AND LANDLORDS. 

FN7  AMONG OTHER PROVISIONS SHOWING THAT SUCH WAS THE PURPOSE OF THE
ACT, SEC. 2(D) PROVIDES IN PART THAT THE ADMINISTRATOR MAY PROMULGATE
REGULATIONS OR ORDERS TO "PROHIBIT SPECULATIVE OR MANIPULATIVE
PRACTICES  ...  OR RENTING OR LEASING PRACTICES (INCLUDING PRACTICES
RELATING TO RECOVERY OF THE POSSESSION)  ...  WHICH IN HIS JUDGMENT ARE
EQUIVALENT TO OR ARE LIKELY TO RESULT IN PRICE OR RENT INCREASES  ..." 
58 STAT. 634. 

FN8  THE LANDLORDS HERE CLAIMED TO BE RECENT PURCHASERS OF STOCK IN A
COOPERATIVE OWNERSHIP ARRANGEMENT.  REGULATION 6(B), HERE INVOLVED, WAS
PROMULGATED, ACCORDING TO THE ADMINISTRATOR, FOR THE FOLLOWING, AMONG
OTHER, STATED REASONS: 

"IN RECENT MONTHS THE PROBLEM OF EVICTIONS AND POTENTIAL EVICTIONS IN
CONNECTION WITH THE SALE OF STOCK IN COOPERATIVE HOUSING CORPORATIONS
HAS REACHED SERIOUS PROPORTIONS.  APARTMENT HOUSES AND OTHER MULTIPLE
UNIT PREMISES ARE BEING SOLD TO COOPERATIVE CORPORATIONS.  THESE
CORPORATIONS IN TURN SELL STOCK IN THE CORPORATION WHICH ENTITLES THE
PURCHASER TO A 'PROPRIETARY LEASE' OF A DWELLING UNIT IN THE
STRUCTURE.  IN SELLING STOCK IN THE COOPERATIVE, TENANTS USUALLY ARE
FIRST APPROACHED.  THEY ARE UNDER HEAVY PRESSURE TO PURCHASE STOCK
BECAUSE THE ALTERNATIVE IS LIKELY TO BE EVICTION IN FAVOR OF THE
ULTIMATE PURCHASER OF THE STOCK.  IF THE STOCK IS NOT PURCHASED BY A
TENANT, IT IS THEN SOLD TO ANOTHER PERSON WHO OBTAINS A PROPRIETARY
LEASE OF THE TENANT'S DWELLING UNIT AND SEEKS POSSESSION OF THAT UNIT
FOR PERSONAL OCCUPANCY.           .         .  .         .         . 

"IN THE PAST COOPERATIVE HOUSING CORPORATIONS WERE VIRTUALLY UNKNOWN
IN MOST DEFENSE-RENTAL AREAS.  SINCE RENT CONTROL THERE HAS BEEN A
TENDENCY TO MAKE MORE FREQUENT USE OF THE DEVICE AND THERE IS EVERY
INDICATION THAT THIS WILL ACCELERATE. 

     .         .         .         .      . 

"...  DURING RECENT MONTHS, AS THE HOUSING SHORTAGE HAS BECOME MORE
ACUTE, THE COOPERATIVE CORPORATIONS OR OTHER OWNERS OF THIS STOCK HAVE
BEGUN TO SELL IT TO PURCHASERS WHO BECOME ENTITLED TO PROPRIETARY
LEASES."  STATEMENT OF REASONS ACCOMPANYING AMENDMENT 17 TO THE RENT
REGULATION FOR HOUSING FOR THE NEW YORK CITY DEFENSE-RENTAL AREA. 

THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER AND MR. JUSTICE BURTON
DISSENT. 
..END :







PATTERSON V. LAMB, 329 U.S. 539 


NO. 229.  ARGUED JANUARY 7, 1947.  - DECIDED JANUARY 20, 1947.  - 81
U.S. APP. D.C. -, 154 F.2D 319, REVERSED. 


RESPONDENT WAS ORDERED BY HIS LOCAL DRAFT BOARD TO REPORT TO THE BOARD
ON NOVEMBER 11, 1918, AT 9 A.M., FOR "IMMEDIATE MILITARY SERVICE"; AND
WAS INFORMED THAT FROM THAT DAY AND HOUR HE WOULD BE "A SOLDIER IN THE
MILITARY SERVICE OF THE UNITED STATES."  HE REPORTED AS ORDERED AND WAS
MADE THE LEADER OF A GROUP OF DRAFTEES AWAITING ENTRAINMENT FOR A
MOBILIZATION CAMP.  LATER THAT DAY HE WAS TOLD THAT, BECAUSE OF THE
ARMISTICE, THE DRAFT CALL HAD BEEN CANCELED; AND THAT HE WOULD NOT GO
TO CAMP BUT COULD RETURN HOME AND AWAIT FURTHER ORDERS.  FOUR DAYS
LATER HE RECEIVED A NOTICE FROM THE BOARD THAT ALL REGISTRANTS WHO HAD
BEEN INDUCTED BUT HAD NOT ENTRAINED WERE DISCHARGED FROM THE ARMY; AND
THAT THE CANCELLATION OF THE INDUCTION ORDERS WOULD HAVE THE EFFECT OF
AN HONORABLE DISCHARGE FROM THE ARMY.  HELD:  THE WAR DEPARTMENT ACTED
WITHIN ITS POWER IN LATER GRANTING TO THE RESPONDENT A "DISCHARGE FROM
DRAFT" RATHER THAN A CERTIFICATE OF HONORABLE DISCHARGE FROM THE ARMY. 
P. 544. 

PATTERSON, SECRETARY OF WAR, ET AL. V. LAMB. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

RESPONDENT BROUGHT SUIT IN THE DISTRICT COURT AGAINST THE SECRETARY
OF WAR AND THE ADJUTANT GENERAL OF THE ARMY PRAYING A MANDATORY
INJUNCTION TO COMPEL ISSUANCE TO HIM OF A CERTIFICATE OF HONORABLE
DISCHARGE FROM THE ARMY.  THE DISTRICT COURT DISMISSED THE COMPLAINT. 
THE COURT OF APPEALS REVERSED.  81 U.S. APP. D.C. - , 154 F.2D 319. 
THIS COURT GRANTED CERTIORARI.  329 U.S. 695.  REVERSED, P. 545. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ON OCTOBER 28, 1944, RESPONDENT BROUGHT THIS ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AGAINST THE THEN
SECRETARY OF WAR AND ADJUTANT GENERAL OF THE ARMY.  FN1  HE PRAYED FOR
A JUDGMENT DECLARING THAT HE HAD SERVED IN THE UNITED STATES ARMY FROM
NOVEMBER 11, 1918(ARMISTICE DAY) UNTIL NOVEMBER 14, 1918, AND THAT FOR
THIS SERVICE HE WAS ENTITLED TO A CERTIFICATE OF HONORABLE DISCHARGE
FROM THE ARMY, INSTEAD OF THE CERTIFICATE OF "DISCHARGE FROM DRAFT"
WHICH HAD BEEN ISSUED TO HIM.  HE ALSO PRAYED FOR A MANDATORY
INJUNCTION TO COMPEL ISSUANCE TO HIM OF A CERTIFICATE OF HONORABLE
DISCHARGE FROM THE ARMY. 

THE COMPLAINANT ALLEGED THAT ON NOVEMBER 9, 1918, HE RECEIVED A
COMMUNICATION FROM HIS LOCAL DRAFT BOARD DIRECTING HIM TO REPORT TO THE
BOARD AT DAVENPORT, IOWA, FOR "IMMEDIATE MILITARY SERVICE" AT 9 A.M.,
NOVEMBER 11, 1918, AND STATING THAT FROM THAT DAY AND HOUR HE WOULD BE
"A SOLDIER IN THE MILITARY SERVICE OF THE UNITED STATES"; THAT HE
REPORTED AS ORDERED, AND WAS MADE THE LEADER OF THE DRAFTED GROUP THERE
ASSEMBLED WHICH WAS TO BOARD A TRAIN THAT DAY FOR A MOBILIZATION CAMP
AT CAMP DODGE, IOWA; THAT DURING THE DAY HE WAS TOLD THAT BECAUSE OF
THE ARMISTICE THE DRAFT CALL HAD BEEN CANCELED; THAT HE AND THE OTHER
DRAFTEES WOULD NOT GO TO CAMP DODGE, BUT COULD RETURN HOME, STILL
SOLDIERS, AND AWAIT FURTHER ORDERS; THAT FOUR DAYS LATER HE RECEIVED A
NOTICE FROM HIS BOARD THAT BY TELEGRAPHIC ORDER OF THE PROVOST MARSHAL,
ACTING UNDER INSTRUCTIONS OF THE PRESIDENT, ALL INDUCTION ORDERS
THROUGHOUT THE NATION HAD BEEN CANCELED, AND ALL REGISTRANTS, WHO, LIKE
HIMSELF, HAD BEEN INDUCTED BUT NOT ENTRAINED, WERE DISCHARGED FROM THE
ARMY; AND THAT CANCELLATION OF THEIR INDUCTION ORDERS WOULD HAVE THE
EFFECT OF AN HONORABLE DISCHARGE FROM THE ARMY.  HE FURTHER ALLEGED
THAT IN JANUARY, 1919, HE RECEIVED A CERTIFICATE DATED NOVEMBER 14,
1918, ENTITLED "DISCHARGE FROM DRAFT," ACCOMPANYING WHICH WAS A CHECK
FOR FOUR DOLLARS ($4.00) BEARING THE NOTATION "FINAL PAY"; THAT BECAUSE
OF THE FOREGOING CIRCUMSTANCES HE HAD ALWAYS ASSUMED THAT HIS DISCHARGE
HAD THE EFFECT OF AN HONORABLE DISCHARGE FROM THE ARMY; THAT HE HAD
OBTAINED CERTAIN TAX EXEMPTIONS FROM THE STATE OF IOWA ON THE GROUND
THAT HE HAD SUCH A DISCHARGE, BUT WAS LATER AUTHORITATIVELY DENIED THE
EXEMPTIONS BY REASON OF A DECISION OF THE STATE SUPREME COURT, LAMB V.
KROEGER, 233 IOWA 730, 8 N.W.2D 405; THAT IT WAS AFTER THIS DECISION
THAT HE APPLIED FOR AND WAS DENIED AN HONORABLE DISCHARGE BY THE
SECRETARY AND ADJUTANT GENERAL. 

THE DISTRICT COURT SUSTAINED PETITIONERS' MOTION TO DISMISS THE
COMPLAINT ON THE GROUND THAT IT FAILED TO STATE A CAUSE OF ACTION FOR
WHICH RELIEF COULD BE GRANTED.  OTHER GROUNDS OF THE MOTION, NOT PASSED
ON BY THE DISTRICT COURT, WERE THAT THE ALLEGED CAUSE OF ACTION WAS NOT
JUSTICIABLE, WAS BARRED BY LACHES, AND THAT THE TYPE OF CERTIFICATE TO
BE ISSUED DRAFTEES UNDER THE CIRCUMSTANCES ALLEGED WAS A MATTER SOLELY
WITHIN THE DISCRETION OF THE SECRETARY OF WAR AND NOT A SUBJECT FOR
JUDICIAL REVIEW.  THE COURT OF APPEALS REVERSED, REJECTING ALL THE
GROUNDS SET UP IN THE MOTION TO DISMISS.  81 U.S. APP. D.C. - , 154
F.2D 319.  THIS HOLDING NOT ONLY DECIDED IMPORTANT QUESTIONS CONCERNING
THE POWER OF THE WAR DEPARTMENT, BUT ALSO UPSET TWENTY-FIVE YEARS OF
IMPORTANT WAR DEPARTMENT RULINGS AND PRACTICES WHICH HAVE AFFECTED, AND
WILL HEREAFTER AFFECT, THE STATUS AND CLAIMS OF THOUSANDS OF DRAFTEES
OF THE FIRST WORLD WAR.  THIS CALLED FOR OUR REVIEW, AND WE GRANTED
CERTIORARI. 

WHETHER AND TO WHAT EXTENT THE COURTS HAVE POWER TO REVIEW OR CONTROL
THE WAR DEPARTMENT'S ACTION IN FIXING THE TYPE OF DISCHARGE
CERTIFICATES ISSUED TO SOLDIERS,  FN2  IS A QUESTION THAT WE NEED NOT
HERE DETERMINE; NOR NEED WE DECIDE WHETHER THE ACTION SHOULD HAVE BEEN
DISMISSED BECAUSE OF LACHES.  FOR WE ARE SATISFIED THAT THE WAR
DEPARTMENT WAS WITHIN ITS POWER IN GRANTING A DISCHARGE FROM DRAFT
RATHER THAN THE TYPE OF DISCHARGE IT GRANTED SOLDIERS WHO PERFORMED
MILITARY SERVICE AFTER HAVING BECOME FULLY AND FINALLY ABSORBED INTO
THAT SERVICE. 

THE ONLY STATUTE WHICH DIRECTLY BEARS UPON "CERTIFICATES OF
DISCHARGE" FOR ENLISTED MEN, ARTICLE OF WAR 108, SET OUT BELOW,  FN3
DOES NOT PARTICULARLY PRESCRIBE THE TYPES OR CONTENTS OF CERTIFICATES
AUTHORIZED TO BE GRANTED.  BUT PURSUANT TO AUTHORITY GRANTED BY
CONGRESS,  FN4  THE WAR DEPARTMENT MANY YEARS AGO PROMULGATED ARMY
REGULATION NO. 150 WHICH PROVIDED FOR THREE TYPES OF CERTIFICATES OF
DISCHARGE:  HONORABLE, DISHONORABLE, AND UNCLASSIFIED.  FN5  AN
HONORABLE DISCHARGE WAS ONE GRANTED TO A SOLDIER WHOSE CONDUCT IN
SERVICE HAD BEEN SUCH AS TO WARRANT HIS REENLISTMENT.  THIS REGULATION
WAS WELL SUITED TO FIT CASES OF SOLDIERS WHO HAD ENLISTED UNDER
ORDINARY CONDITIONS, HAD SEEN SERVICE AND HAD BEEN DISCHARGED IN THE
COURSE OF REGULAR ARMY ROUTINE.  ON ITS FACE, HOWEVER, IT SHOWS HOW
POORLY IT WAS ADAPTED TO FIT THE EXTRAORDINARY CIRCUMSTANCES BOUND TO
DEVELOP IN CONNECTION WITH A NATION-WIDE PROGRAM FOR PASSING UPON
ACCEPTANCES, REJECTIONS, AND DISCHARGES OF DRAFTEES IN THE COURSE OF
THEIR PROGRESS FROM THEIR HOMES TO THEIR COMPLETE AND FINAL INTEGRATION
INTO THE ARMY.  SO, AFTER THE PASSAGE OF THE 1917 DRAFT ACT, 40 STAT.
76, THE WAR DEPARTMENT, ON JANUARY 12, 1918, ISSUED ITS CIRCULAR NO.
651 IN WHICH IT MADE PROVISION FOR MEN DISCHARGED FROM DRAFT AS
DISTINGUISHED FROM MEN DISCHARGED FROM THE ARMY.  THIS PROVISION, IN
EFFECT WHEN RESPONDENT REPORTED FOR INDUCTION, HAD PARTICULAR, THOUGH
NOT NECESSARILY EXCLUSIVE, REFERENCE TO DRAFTEES REJECTED FOR ONE
REASON OR ANOTHER AT MOBILIZATION CAMPS AFTER THEIR INDUCTION AT THEIR
LOCAL DRAFT BOARDS.  BUT DESPITE THE FACT THAT DRAFTEES BECAME SUBJECT
TO MILITARY LAW AND DUTY FROM THE MOMENT OF THEIR ARRIVAL FOR
ENTRAINMENT AT THE LOCAL BOARD, SELECTIVE SERVICE REGULATION 174-176
PROVIDED THAT THEY NEVERTHELESS WERE NOT FINALLY ACCEPTED FOR MILITARY
SERVICE, AND COULD BE REJECTED AFTER ARRIVAL AT CAMP.  FN6  AND IT WAS
NOT UNTIL THEY HAD BEEN FINALLY ACCEPTED THAT THEY COULD OR WOULD BE
ASSIGNED TO FULL-FLEDGED DUTY AS SOLDIERS. 

THE DISCHARGE FROM DRAFT FORM NO. 638, REFERRED TO IN CIRCULAR NO.
651, WAS ORIGINALLY PREPARED FOR DRAFTEES REJECTED AT CAMP AFTER
INDUCTION "ON ACCOUNT OF PHYSICAL UNFITNESS, DEPENDENCY, ETC." FORM NO.
638 HAD BEEN IN USE LONG PRIOR TO THE RESPONDENT'S REJECTION ON THE
GROUND THAT THE GOVERNMENT DID NOT NEED HIS SERVICES AFTER THE
ARMISTICE.  HAD THE ARMISTICE NOT BEEN DECLARED, HAD RESPONDENT GONE ON
TO CAMP DODGE, AND HAD HE THEN BEEN REJECTED FOR ANY REASON THERE, HE
WOULD HAVE RECEIVED, NOT AN HONORABLE DISCHARGE FROM THE ARMY, BUT A
"DISCHARGE FROM DRAFT."  YET WE ARE ASKED TO GIVE THE REGULATIONS AND
CERTIFICATES A JUDICIAL CONSTRUCTION, CONTRARY TO THE ARMY'S
CONSTRUCTION, WHEREBY RESPONDENT, WHO GOT NO FARTHER THAN HIS LOCAL
BOARD, WOULD STAND IN A BETTER STATUS THAN THE TENS OF THOUSANDS OF
OTHER DRAFTEES WHO CAME MUCH CLOSER TO COMPLETE INTEGRATION INTO THE
ARMY THAN HE EVER DID. 

AN ARGUMENT TO SUPPORT THIS CONTENTION IS THAT THE TELEGRAPHIC ORDER
ISSUED FROM ARMY HEADQUARTERS ON ARMISTICE DAY, WHICH CANCELED
ENTRAINMENT ORDERS FOR RESPONDENT AND ABOUT 155,000 OTHER DRAFTEES THEN
READY FOR ENTRAINMENT, PROVIDED THAT ALL OF THEM WERE "DISCHARGED FROM
THE ARMY."  BUT THAT SAME ORDER STATED THAT "THE ISSUE OF FORMAL PAPERS
OF DISCHARGE WILL BE CONSIDERED AND DETERMINED LATER" AND THAT THE
PURPOSE OF THE TELEGRAPHIC ORDER WAS "MERELY TO CANCEL OUTSTANDING
CALLS AND STOP THE ENTRAINMENT THEREUNDER OF MEN FOR THE ARMY."  AND
WHEN "THE ISSUE OF FORMAL PAPERS OF DISCHARGE" WAS "LATER" CONSIDERED,
IT RESULTED IN WAR DEPARTMENT CIRCULAR NO. 111 OF 1918.  THAT CIRCULAR
WAS THE FOLLOW-UP OF THE PRESIDENT'S ARMISTICE DAY DRAFT CANCELLATION
ORDER, AND AS FORESHADOWED BY THE ARMISTICE DAY ORDER, THIS CIRCULAR
PRESCRIBED WITH DEFINITENESS THE TYPE OF "FORMAL PAPERS OF DISCHARGE"
WHICH THIS RESPONDENT AND OTHERS LIKE HIM WOULD LATER RECEIVE.  IT WAS
A "DISCHARGE FROM DRAFT." 

NO STATUTE OR PREVIOUS ARMY REGULATION HAD PROVIDED FOR THE
EXTRAORDINARY SITUATION WHICH DEVELOPED ON ARMISTICE DAY AND WHICH MADE
IT NECESSARY FOR THE PRESIDENT TO HALT THE PROCESSING OF THESE
THOUSANDS OF MEN AND DIRECT THAT THEY RETURN TO THEIR HOMES.  WHEN THIS
NEW SITUATION AROSE, IT WAS CERTAINLY WITHIN THE PROVINCE OF THE WAR
DEPARTMENT TO PROVIDE FOR ITS SOLUTION BY, AMONG OTHER THINGS, ISSUING
TO THOSE RETURNED HOME AN APPROPRIATE FORM OF CERTIFICATE, WHETHER OF
THE HONORABLE DISCHARGE VARIETY, A "DISCHARGE FROM DRAFT," OR SOME
SPECIAL FORM DESIGNED SPECIFICALLY FOR THE OCCASION.  RESPONDENT WAS
INDUCTED INTO THE ARMY AND WAS DISCHARGED BEFORE HE REACHED A
MOBILIZATION CAMP FOR FINAL PROCESSING.  HIS DISCHARGE ADEQUATELY
INDICATES THESE FACTS.  THE LAW DEMANDS NO MORE.  REVERSED. 

FN1  THE SECRETARY OF WAR AND THE ADJUTANT GENERAL AGAINST WHOM THE
ACTION WAS ORIGINALLY INSTITUTED ARE NO LONGER IN OFFICE; THEIR
SUCCESSORS HAVE BEEN PROPERLY SUBSTITUTED AS PARTIES. 

FN2  SEE DENBY V. BERRY, 51 APP. D.C. 335, 279 F. 317, 263 U.S. 29;
DAVIS V. WOODRING, 111 F.2D 523; PALMER V. UNITED STATES, 72 CT. CL.
401; WILBUR V. UNITED STATES, 281 U.S. 206; CF. 58 STAT. 286, 38 U.S.C.
SUPP. IV, SEC. 693H. 

FN3  "NO ENLISTED MAN, LAWFULLY INDUCTED INTO THE MILITARY SERVICE OF
THE UNITED STATES, SHALL BE DISCHARGED FROM SAID SERVICE WITHOUT A
CERTIFICATE OF DISCHARGE, SIGNED BY A FIELD OFFICER OF THE REGIMENT OR
OTHER ORGANIZATION TO WHICH THE ENLISTED MAN BELONGS  ..."  39 STAT.
619, 668. 

FN4  18 STAT. 337, 10 U.S.C. SEC. 16; SEE ALSO UNITED STATES V.
ELIASON, 16 PET. 291, 301-302. 

FN5  PARAGRAPH 150 OF THE ARMY REGULATIONS OF 1913, CORRECTED TO
APRIL 15, 1917, WAS AS FOLLOWS: 

"150.  BLANK FORMS FOR DISCHARGE AND FINAL STATEMENTS WILL BE
FURNISHED BY THE ADJUTANT GENERAL'S DEPARTMENT AND WILL BE RETAINED IN
THE PERSONAL CUSTODY OF COMPANY COMMANDERS.  DISCHARGE CERTIFICATES
WILL BE USED IN THE DISCHARGE OF ENLISTED MEN AND FOR NO OTHER PURPOSE,
AND WILL BE OF THREE CLASSES:  FOR HONORABLE DISCHARGE, FOR DISCHARGE,
AND FOR DISHONORABLE DISCHARGE. 

THEY WILL BE USED AS FOLLOWS: 

1.  THE BLANK FOR HONORABLE DISCHARGE, WHEN THE SOLDIER'S CONDUCT HAS
BEEN SUCH AS TO WARRANT HIS REENLISTMENT AND HIS SERVICE HAS BEEN
HONEST AND FAITHFUL. 

2.  THE BLANK FOR DISHONORABLE DISCHARGE, FOR DISHONORABLE DISCHARGE
BY SENTENCE OF A COURT MARTIAL OR A MILITARY COMMISSION. 

3.  THE BLANK FOR DISCHARGE WHEN THE SOLDIER IS DISCHARGED EXCEPT AS
SPECIFIED UNDER SECTIONS 1 AND 2 OF THIS PARAGRAPH (C.A.R. NOS. 14 AND
34)." 

FN6  CF. GIBSON V. UNITED STATES, 329 U.S. 338; DODEZ V. UNITED
STATES, 329 U.S. 338. 
..END :








MORRIS V. JONES, 329 U.S. 545 


NO. 62.  ARGUED DECEMBER 9, 10, 1946.  - DECIDED JANUARY 20, 1947.  -
391 ILL. 492, 63 N.E.2D 479, REVERSED. 


AN UNINCORPORATED ASSOCIATION WAS AUTHORIZED BY ILLINOIS TO TRANSACT
AN INSURANCE BUSINESS THERE AND IN OTHER STATES.  IT QUALIFIED TO DO
BUSINESS IN MISSOURI.  PETITIONER SUED THE ASSOCIATION IN A MISSOURI
COURT.  SUBSEQUENTLY, BUT BEFORE JUDGMENT WAS OBTAINED IN MISSOURI, AN
ILLINOIS COURT APPOINTED A LIQUIDATOR FOR THE ASSOCIATION AND ISSUED AN
ORDER STAYING SUITS AGAINST IT.  ALL ASSETS OF THE ASSOCIATION VESTED
IN THE LIQUIDATOR.  WITH NOTICE OF THE STAY ORDER, PETITIONER CONTINUED
TO PROSECUTE THE MISSOURI SUIT; BUT COUNSEL FOR THE ASSOCIATION
WITHDREW AND DID NOT DEFEND IT.  PETITIONER OBTAINED A JUDGMENT AGAINST
THE ASSOCIATION IN MISSOURI AND FILED A COPY AS PROOF OF HIS CLAIM IN
THE ILLINOIS PROCEEDINGS.  AN ORDER DISALLOWING THE CLAIM WAS SUSTAINED
BY THE SUPREME COURT OF ILLINOIS.  AN APPEAL WAS TAKEN TO THIS COURT. 
HELD: 

1.  THE QUESTION WHETHER FULL FAITH AND CREDIT SHOULD HAVE BEEN GIVEN
THE MISSOURI JUDGMENT DOES NOT PRESENT A GROUND FOR APPEAL; BUT
CERTIORARI IS GRANTED UNDER JUDICIAL CODE SEC. 237(C).  P. 547. 

2.  UNDER THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION (ART.
IV, SEC. 1) AND R.S. SEC. 905, THE NATURE AND AMOUNT OF PETITIONER'S
CLAIM WAS CONCLUSIVELY DETERMINED BY THE MISSOURI JUDGMENT AND MAY NOT
BE RELITIGATED IN THE ILLINOIS PROCEEDINGS, IT NOT APPEARING THAT THE
MISSOURI COURT LACKED JURISDICTION OVER EITHER THE PARTIES OR THE
SUBJECT MATTER.  PP. 550-554. 

3.  THE ESTABLISHMENT OF THE EXISTENCE AND AMOUNT OF A CLAIM AGAINST
THE DEBTOR IN NO WAY DISTURBS THE POSSESSION OF THE LIQUIDATION COURT,
IN NO WAY AFFECTS TITLE TO THE PROPERTY, AND DOES NOT NECESSARILY
INVOLVE A DETERMINATION OF WHAT PRIORITY THE CLAIM SHOULD HAVE.  PP.
549, 554. 

MORRIS V. JONES, DIRECTOR OF INSURANCE. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

PETITIONER OBTAINED A JUDGMENT IN MISSOURI AGAINST AN ILLINOIS
ASSOCIATION FOR WHICH A LIQUIDATOR HAD BEEN APPOINTED IN ILLINOIS AFTER
THE SUIT WAS BROUGHT AND FILED A COPY AS PROOF OF HIS CLAIM IN THE
ILLINOIS PROCEEDINGS.  THE SUPREME COURT OF ILLINOIS AFFIRMED AN ORDER
DISALLOWING THE CLAIM.  391 ILL. 492, 63 N.E.2D 479.  AN APPEAL TO THIS
COURT WAS TREATED AS A PETITION FOR CERTIORARI AND CERTIORARI WAS
GRANTED UNDER JUDICIAL CODE SEC. 237(C).  REVERSED, P. 554. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A SUBSTANTIAL QUESTION UNDER THE FULL FAITH AND
CREDIT CLAUSE (ART. IV, SEC. 1) OF THE CONSTITUTION. 

CHICAGO LLOYDS, AN UNINCORPORATED ASSOCIATION, WAS AUTHORIZED BY
ILLINOIS TO TRANSACT AN INSURANCE BUSINESS IN ILLINOIS AND OTHER
STATES.  IT QUALIFIED TO DO BUSINESS IN MISSOURI.  IN 1934 PETITIONER
SUED CHICAGO LLOYDS IN A MISSOURI COURT FOR MALICIOUS PROSECUTION AND
FALSE ARREST.  IN 1938, BEFORE JUDGMENT WAS OBTAINED IN MISSOURI,
RESPONDENT'S PREDECESSOR WAS APPOINTED BY AN ILLINOIS COURT AS
STATUTORY LIQUIDATOR FOR CHICAGO LLOYDS.  THE ILLINOIS COURT FIXED A
TIME FOR THE FILING OF CLAIMS AGAINST CHICAGO LLOYDS AND ISSUED AN
ORDER STAYING SUITS AGAINST IT. PETITIONER HAD NOTICE OF THE STAY ORDER
BUT NEVERTHELESS CONTINUED TO PROSECUTE THE MISSOURI SUIT.  AT THE
INSTANCE OF THE LIQUIDATOR, HOWEVER, COUNSEL FOR CHICAGO LLOYDS
WITHDREW FROM THE SUIT AND DID NOT DEFEND IT, STATING TO THE MISSOURI
COURT THAT THE ILLINOIS LIQUIDATION PROCEEDINGS HAD VESTED ALL THE
PROPERTY OF CHICAGO LLOYDS IN THE LIQUIDATOR.  THEREAFTER PETITIONER
OBTAINED A JUDGMENT IN THE MISSOURI COURT AND FILED AN EXEMPLIFIED COPY
OF IT AS PROOF OF HIS CLAIM IN THE ILLINOIS PROCEEDINGS.  AN ORDER
DISALLOWING THE CLAIM WAS SUSTAINED BY THE ILLINOIS SUPREME COURT
AGAINST THE CONTENTION THAT ITS ALLOWANCE WAS REQUIRED BY THE FULL
FAITH AND CREDIT CLAUSE.  391 ILL. 492, 63 N.E.2D 479. 

THE CASE WAS BROUGHT HERE BY APPEAL.  WE POSTPONED THE QUESTION OF
JURISDICTION TO THE MERITS.  UNDER THE RULE OF ROCHE V. MCDONALD, 275
U.S. 449, 450, THE QUESTION WHETHER FULL FAITH AND CREDIT SHOULD HAVE
BEEN GIVEN THE MISSOURI JUDGMENT DOES NOT PRESENT A GROUND FOR APPEAL. 
BUT TREATING THE JURISDICTIONAL STATEMENT AS A PETITION FOR CERTIORARI
(JUDICIAL CODE SEC. 237(C), 28 U.S.C. SEC. 344(C)), THAT WRIT IS
GRANTED; AND WE COME TO THE MERITS OF THE CONTROVERSY. 

THE FULL FAITH AND CREDIT CLAUSE AND THE STATUTE WHICH IMPLEMENTS IT
(R.S. SEC. 905, 28 U.S.C. SEC. 687) REQUIRE THE JUDGMENTS OF THE COURTS
OF ONE STATE TO BE GIVEN THE SAME FAITH AND CREDIT IN ANOTHER STATE AS
THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE STATE RENDERING THEM. 
THE ILLINOIS SUPREME COURT CONCLUDED THAT COMPLIANCE WITH THAT MANDATE
REQUIRED THAT PRECEDENCE BE GIVEN TO THE ILLINOIS DECREE APPOINTING THE
STATUTORY LIQUIDATOR.  IT HELD THAT TITLE TO ALL THE PROPERTY OF
CHICAGO LLOYDS, WHEREVER LOCATED, VESTED IN THE LIQUIDATOR; THAT THE
LIQUIDATOR WAS ENTITLED TO KEEP AND RETAIN POSSESSION OF THE PROPERTY
TO THE EXCLUSION OF THE PROCESS OF ANY OTHER COURT; THAT ALTHOUGH
MISSOURI MIGHT GIVE PRIORITY TO MISSOURI CREDITORS IN THE PROPERTY OF
THE DEBTOR LOCATED THERE,  FN1  CLARK V. WILLIARD, 292 U.S. 112, THE
MISSOURI JUDGMENT COULD HAVE NO PRIORITY AS RESPECTS ILLINOIS ASSETS;
THAT IF A LIQUIDATOR HAD BEEN APPOINTED IN MISSOURI, PETITIONER COULD
NOT HAVE OBTAINED HIS JUDGMENT, OR IF HE HAD OBTAINED IT, HE COULD NOT
HAVE ENFORCED IT AGAINST THE PROPERTY IN THE HANDS OF THE MISSOURI
LIQUIDATOR, SEE MCDONALD V. PACIFIC STATES LIFE INS. CO., 344 MO. 1,
124 S.W.2D 1157; AND THAT TO DISALLOW THE JUDGMENT IN THE ILLINOIS
PROCEEDINGS IS, THEREFORE, TO GIVE IT THE SAME EFFECT THAT IT WOULD
HAVE HAD UNDER THE SAME CIRCUMSTANCES IN MISSOURI. 

FIRST.  WE CAN PUT TO ONE SIDE, AS IRRELEVANT TO THE PROBLEM AT HAND,
SEVERAL ARGUMENTS WHICH HAVE BEEN PRESSED UPON US.  WE ARE NOT DEALING
HERE WITH ANY QUESTION OF PRIORITY OF CLAIMS AGAINST THE PROPERTY OF
THE DEBTOR.  FOR IN THIS PROCEEDING PETITIONER IS NOT SEEKING, NOR IS
RESPONDENT DENYING HIM, ANYTHING OTHER THAN THE RIGHT TO PROVE HIS
CLAIM IN JUDGMENT FORM.  NO QUESTION OF PARITY OF TREATMENT OF
CREDITORS, OR THE LACK THEREOF (SEE BLAKE V. MCCLUNG, 172 U.S. 239), IS
IN ISSUE.  NOR IS THERE INVOLVED IN THIS CASE ANY CHALLENGE TO THE
ILLINOIS RULE, WHICH FOLLOWS RELFE V. RUNDLE, 103 U.S. 222, THAT TITLE
TO ALL THE PROPERTY OF CHICAGO LLOYDS, WHEREVER LOCATED, VESTED IN THE
LIQUIDATOR.  NOR DO WE HAVE HERE A CHALLENGE TO THE POSSESSION OF THE
LIQUIDATOR EITHER THROUGH AN ATTEMPT TO OBTAIN A LIEN ON THE PROPERTY
OR OTHERWISE.  AS POINTED OUT IN RIEHLE V. MARGOLIES, 279 U.S. 218,
224, THE DISTRIBUTION OF ASSETS OF A DEBTOR AMONG CREDITORS ORDINARILY
HAS A "TWOFOLD ASPECT."  IT DEALS "DIRECTLY WITH THE PROPERTY" WHEN IT
FIXES THE TIME AND MANNER OF DISTRIBUTION.  NO ONE CAN OBTAIN PART OF
THE ASSETS OR ENFORCE A RIGHT TO SPECIFIC PROPERTY IN THE POSSESSION OF
THE LIQUIDATION COURT EXCEPT UPON APPLICATION TO IT.  BUT PROOF AND
ALLOWANCE OF CLAIMS ARE MATTERS DISTINCT FROM DISTRIBUTION.  THEY DO
NOT "DEAL DIRECTLY WITH ANY OF THE PROPERTY."  "THE LATTER FUNCTION,
WHICH IS SPOKEN OF AS THE LIQUIDATION OF A CLAIM, IS STRICTLY A
PROCEEDING IN PERSONAM."  ID., P. 224.  THE ESTABLISHMENT OF THE
EXISTENCE AND AMOUNT OF A CLAIM AGAINST THE DEBTOR IN NO WAY DISTURBS
THE POSSESSION OF THE LIQUIDATION COURT, IN NO WAY AFFECTS TITLE TO THE
PROPERTY, AND DOES NOT NECESSARILY INVOLVE A DETERMINATION OF WHAT
PRIORITY THE CLAIM SHOULD HAVE.  AND SEE CHICAGO TITLE & T. CO. V. FOX
THEATRES CORP., 69 F.2D 60. 

ONE LINE OF CASES HOLDS THAT WHERE A STATUTORY LIQUIDATOR OR RECEIVER
IS APPOINTED, THE COURT TAKING JURISDICTION OF THE PROPERTY DRAWS UNTO
ITSELF EXCLUSIVE CONTROL OVER THE PROOF OF ALL CLAIMS.  FN2  BUT THE
NOTION THAT SUCH CONTROL OVER THE PROOF OF CLAIMS IS NECESSARY FOR THE
PROTECTION OF THE EXCLUSIVE JURISDICTION OF THE COURT OVER THE PROPERTY
IS A MISTAKEN ONE.  AS JUSTICE BEACH OF THE SUPREME COURT OF ERRORS OF
CONNECTICUT APTLY SAID, "THE QUESTION IS SIMPLY ONE OF THE
ADMISSIBILITY AND EFFECT OF EVIDENCE; AND THE OBLIGATION TO RECEIVE A
JUDGMENT IN EVIDENCE IS NO MORE DEROGATORY TO THE JURISDICTION IN REM
THAN THE OBLIGATION TO RECEIVE IN EVIDENCE A PROMISSORY NOTE OR OTHER
ADMISSIBLE EVIDENCE OF DEBT."  BEACH, JUDGMENT CLAIMS IN RECEIVERSHIP
PROCEEDINGS, 30 YALE L. JOURN.  674, 680. 

MOREOVER, WE DO NOT HAVE HERE A SITUATION LIKE THAT INVOLVED IN
PENDLETON V. RUSSELL, 144 U.S. 640, WHERE IT WAS SOUGHT TO PROVE IN A
NEW YORK RECEIVERSHIP OF A DISSOLVED CORPORATION A JUDGMENT OBTAINED IN
TENNESSEE AFTER DISSOLUTION.  THE PROOF WAS DISALLOWED, DISSOLUTION
HAVING OPERATED, LIKE DEATH, AS AN ABATEMENT OF THE SUIT.  NO SUCH
INFIRMITY APPEARS TO BE PRESENT IN THE MISSOURI JUDGMENT; AND THE
ILLINOIS SUPREME COURT DID NOT HOLD THAT THE APPOINTMENT OF A
LIQUIDATOR FOR CHICAGO LLOYDS OPERATED AS AN ABATEMENT OF THE SUIT. 
NOR IS IT SOUGHT ON ANY OTHER GROUND TO BRING THE MISSOURI JUDGMENT
WITHIN THE EXCEPTION ON WHICH WILLIAMS V. NORTH CAROLINA, 325 U.S. 226,
RESTS, BY CHALLENGING THE JURISDICTION OF THE MISSOURI COURT OVER
EITHER THE PARTIES OR THE SUBJECT MATTER.  NOR IS THERE ANY LACK OF
PRIVITY BETWEEN CHICAGO LLOYDS AND THE ILLINOIS LIQUIDATOR.  CF.
INGERSOLL V. CORAM, 211 U.S. 335, 362-364.  THERE IS NO DIFFERENCE IN
THE CAUSE OF ACTION, CF. UNITED STATES V. CALIFORNIA BRIDGE CO., 245
U.S. 337, WHETHER CHICAGO LLOYDS OR THE LIQUIDATOR IS SUED.  THE
MISSOURI JUDGMENT REPRESENTS A LIABILITY FOR ACTS COMMITTED BY CHICAGO
LLOYDS, NOT FOR THOSE OF THE LIQUIDATOR.  THE CLAIMS FOR WHICH THE
ILLINOIS ASSETS ARE BEING ADMINISTERED ARE CLAIMS AGAINST CHICAGO
LLOYDS.  THE MISSOURI JUDGMENT REPRESENTS ONE OF THEM.  THERE IS NO
MORE REASON FOR DISCHARGING A LIQUIDATOR FROM THE RESPONSIBILITY FOR
DEFENDING PENDING ACTIONS THAN THERE IS FOR RELIEVING A RECEIVER OF
THAT TASK.  RIEHLE V. MARGOLIES, SUPRA. 

SECOND.  "A JUDGMENT OF A COURT HAVING JURISDICTION OF THE PARTIES
AND OF THE SUBJECT MATTER OPERATES AS RES JUDICATA, IN THE ABSENCE OF
FRAUD OR COLLUSION, EVEN IF OBTAINED UPON A DEFAULT."  RIEHLE V.
MARGOLIES, SUPRA, P. 225.  SUCH A JUDGMENT OBTAINED IN A SISTER STATE
IS, WITH EXCEPTIONS NOT RELEVANT HERE, SEE WILLIAMS V. NORTH CAROLINA,
317 U.S. 287, 294-295, ENTITLED TO FULL FAITH AND CREDIT IN ANOTHER
STATE, THOUGH THE UNDERLYING CLAIM WOULD NOT BE ENFORCED IN THE STATE
OF THE FORUM.  CHRISTMAS V. RUSSELL, 5 WALL.  290; FAUNTLEROY V. LUM
210 U.S. 230; ROCHE V. MCDONALD, SUPRA; TITUS V. WALLICK, 306 U.S. 282,
291.  IT IS NO MORE IMPORTANT THAT THE SUIT ON THIS UNDERLYING CLAIM
COULD NOT HAVE BEEN MAINTAINED IN ILLINOIS AFTER THE LIQUIDATOR HAD
BEEN APPOINTED THAN THE FACT THAT A STATUTE OF LIMITATIONS OF THE STATE
OF THE FORUM MIGHT HAVE BARRED IT.  SEE CHRISTMAS V. RUSSELL, SUPRA;
ROCHE V. MCDONALD, SUPRA.  AND THE MISSOURI JUDGMENT MAY NOT BE
DEFEATED BY VIRTUE OF THE FACT THAT UNDER OTHER CIRCUMSTANCES
PETITIONER MIGHT NOT HAVE BEEN ABLE TO OBTAIN IT IN MISSOURI OR TO HAVE
RECEIVED ANY BENEFIT FROM IT THERE, AS, FOR EXAMPLE, IF A LIQUIDATOR
HAD BEEN APPOINTED FOR THE DEBTOR IN MISSOURI PRIOR TO JUDGMENT.  THE
FULL FAITH AND CREDIT TO WHICH A JUDGMENT IS ENTITLED IS THE CREDIT
WHICH IT HAS IN THE STATE FROM WHICH IT IS TAKEN, NOT THE CREDIT THAT
UNDER OTHER CIRCUMSTANCES AND CONDITIONS IT MIGHT HAVE HAD.  MOREOVER,
THE QUESTION WHETHER A JUDGMENT IS ENTITLED TO FULL FAITH AND CREDIT
DOES NOT DEPEND ON THE PRESENCE OF RECIPROCAL ENGAGEMENTS BETWEEN THE
STATES. 

UNDER MISSOURI LAW PETITIONER'S JUDGMENT WAS A FINAL DETERMINATION OF
THE NATURE AND AMOUNT OF HIS CLAIM.  SEE PITTS V. FUGATE, 41 MO. 405;
CENTRAL TRUST CO. V. D'ARCY, 238 MO. 676, 142 S.W. 294; STATE EX REL.
ROBB V. SHAIN, 347 MO. 928, 149 S.W.2D 812.  THAT DETERMINATION IS
FINAL AND CONCLUSIVE IN ALL COURTS.  "BECAUSE THERE IS A FULL FAITH AND
CREDIT CLAUSE A DEFENDANT MAY NOT A SECOND TIME CHALLENGE THE VALIDITY
OF THE PLAINTIFF'S RIGHT WHICH HAS RIPENED INTO A JUDGMENT."  MAGNOLIA
PETROLEUM CO. V. HUNT, 320 U.S. 430, 439-440.  FOR THE FULL FAITH AND
CREDIT CLAUSE ESTABLISHED "THROUGHOUT THE FEDERAL SYSTEM THE SALUTARY
PRINCIPLE OF THE COMMON LAW THAT A LITIGATION ONCE PURSUED TO JUDGMENT
SHALL BE AS CONCLUSIVE OF THE RIGHTS OF THE PARTIES IN EVERY OTHER
COURT AS IN THAT WHERE THE JUDGMENT WAS RENDERED."  ID., P. 439.  AND
SEE RILEY V. NEW YORK TRUST CO., 315 U.S. 343, 348-349.  THE NATURE AND
AMOUNT OF PETITIONER'S CLAIM MAY NOT, THEREFORE, BE CHALLENGED OR
RETRIED IN THE ILLINOIS PROCEEDINGS. 

AS TO RESPONDENT'S CONTENTION THAT THE ILLINOIS DECREE, OF WHICH
PETITIONER HAD NOTICE, SHOULD HAVE BEEN GIVEN FULL FAITH AND CREDIT BY
THE MISSOURI COURT, ONLY A WORD NEED BE SAID.  ROCHE V. MCDONALD,
SUPRA, PP. 454-455, MAKES PLAIN THAT THE PLACE TO RAISE THAT DEFENSE
WAS IN THE MISSOURI PROCEEDINGS.  AND SEE TREINIES V. SUNSHINE MINING
CO., 308 U.S. 66, 77.  AND WHATEVER MIGHT HAVE BEEN THE RULING ON THE
QUESTION, THE RIGHTS OF THE PARTIES COULD HAVE BEEN PRESERVED BY A
RESORT TO THIS COURT, WHICH IS THE FINAL ARBITER OF QUESTIONS ARISING
UNDER THE FULL FAITH AND CREDIT CLAUSE.  WILLIAMS V. NORTH CAROLINA,
317 U.S. 287, 302.  IN ANY EVENT, THE MISSOURI JUDGMENT IS RES JUDICATA
AS TO THE NATURE AND AMOUNT OF PETITIONER'S CLAIM AS AGAINST ALL
DEFENSES WHICH COULD HAVE BEEN RAISED.  ROCHE V. MCDONALD, SUPRA;
MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268, 275; MAGNOLIA PETROLEUM
CO. V. HUNT, SUPRA, P. 438. 

IT IS FINALLY SUGGESTED THAT SINCE THE FEDERAL BANKRUPTCY ACT
PROVIDES FOR EXCLUSIVE ADJUDICATION OF CLAIMS BY THE BANKRUPTCY COURT
FN3  AND EXCEPTS INSURANCE COMPANIES FROM THE ACT (SEC. 4, 52 STAT.
840, 845, 11 U.S.C. SEC. 22; VALLELY V. NORTHERN FIRE & MARINE INS.
CO., 254 U.S. 348), THE STATE LIQUIDATORS OF INSOLVENT INSURANCE
COMPANIES SHOULD HAVE THE SAME CONTROL OVER THE DETERMINATION OF CLAIMS
AS THE BANKRUPTCY COURT HAS.  THIS IS TO ARGUE THAT BY REASON OF ITS
POLICE POWER A STATE MAY DETERMINE THE METHOD AND MANNER OF PROVING
CLAIMS AGAINST PROPERTY WHICH IS IN ITS JURISDICTION AND WHICH IS BEING
ADMINISTERED BY ITS COURTS OR ADMINISTRATIVE AGENCIES.  WE HAVE NO
DOUBT THAT IT MAY DO SO EXCEPT AS SUCH PROCEDURE COLLIDES WITH THE
FEDERAL CONSTITUTION OR AN ACT OF CONGRESS.  SEE BRODERICK V. ROSNER,
294 U.S. 629.  BUT WHERE THERE IS SUCH A COLLISION, THE ACTION OF A
STATE UNDER ITS POLICE POWER MUST GIVE WAY BY VIRTUE OF THE SUPREMACY
CLAUSE.  ARTICLE VI, CLAUSE 2.  THERE IS SUCH A COLLISION HERE.  WHEN
WE LOOK TO THE GENERAL STATUTE WHICH CONGRESS HAS ENACTED PURSUANT TO
THE FULL FAITH AND CREDIT CLAUSE, WE FIND NO EXCEPTION IN CASE OF
LIQUIDATIONS OF INSOLVENT INSURANCE COMPANIES.  THE COMMAND IS TO GIVE
FULL FAITH AND CREDIT TO EVERY JUDGMENT OF A SISTER STATE.  AND WHERE
THERE IS NO JURISDICTIONAL INFIRMITY, EXCEPTIONS HAVE RARELY, IF EVER,
BEEN READ INTO THE CONSTITUTIONAL PROVISION OR THE ACT OF CONGRESS IN
CASES INVOLVING MONEY JUDGMENTS RENDERED IN CIVIL SUITS.  MAGNOLIA
PETROLEUM CO. V. HUNT, SUPRA, P. 438; WILLIAMS V. NORTH CAROLINA, 317
U.S. 287, 294, FOOTNOTE 6.    THE FUNCTION OF THE FULL FAITH AND CREDIT
CLAUSE IS TO RESOLVE CONTROVERSIES WHERE STATE POLICIES DIFFER.  ITS
NEED MIGHT NOT BE SO GREATLY FELT IN SITUATIONS WHERE THERE WAS NO
CLASH OF INTERESTS BETWEEN THE STATES.  THE ARGUMENT OF CONVENIENCE IN
ADMINISTRATION IS AT BEST ONLY ANOTHER ILLUSTRATION OF HOW THE
ENFORCEMENT OF A JUDGMENT OF ONE STATE IN ANOTHER STATE MAY RUN COUNTER
TO THE LATTER'S POLICIES.  BUT THE ANSWER GIVEN BY FAUNTLEROY V. LUM,
SUPRA, IS CONCLUSIVE.  IF FULL FAITH AND CREDIT IS NOT GIVEN IN THAT
SITUATION, THE CLAUSE AND THE STATUTE FAIL WHERE THEIR NEED IS THE
GREATEST.  THE ARGUMENT OF CONVENIENCE, MOREOVER, PROVES TOO MUCH.  IN
THE FIRST PLACE, IT WOULD OFTEN BE EQUALLY APPEALING TO INDIVIDUALS OR
CORPORATIONS ENGAGING IN MULTISTATE ACTIVITIES WHICH MIGHT WELL PREFER
TO DEFEND LAW SUITS AT HOME.  IN THE SECOND PLACE, AGAINST THE
CONVENIENCE OF THE ADMINISTRATION OF ASSETS IN ILLINOIS IS THE HARDSHIP
ON THE MISSOURI CREDITOR IF HE WERE FORCED TO DROP HIS MISSOURI
LITIGATION, BRING HIS WITNESSES TO ILLINOIS, AND START ALL OVER AGAIN. 
BUT FULL FAITH AND CREDIT IS A MORE INEXORABLE COMMAND; ITS
APPLICABILITY DOES NOT TURN ON A BALANCE OF CONVENIENCE AS BETWEEN
LITIGANTS.  IF THIS WERE A SITUATION WHERE MISSOURI'S POLICY WOULD
RESULT IN THE DISMEMBERMENT OF THE ILLINOIS ESTATE SO THAT ILLINOIS
CREDITORS WOULD GO BEGGING, ILLINOIS WOULD HAVE SUCH A LARGE INTEREST
AT STAKE AS TO PREVENT IT.  SEE CLARK V. WILLIARD, 294 U.S. 211.  BUT,
AS WE HAVE SAID, PROOF AND ALLOWANCE OF CLAIMS ARE MATTERS DISTINCT
FROM DISTRIBUTION OF ASSETS. 

THE SINGLE POINT OF OUR DECISION IS THAT THE NATURE AND AMOUNT OF
PETITIONER'S CLAIM HAS BEEN CONCLUSIVELY DETERMINED BY THE MISSOURI
JUDGMENT AND MAY NOT BE RELITIGATED IN THE ILLINOIS PROCEEDINGS, IT NOT
APPEARING THAT THE MISSOURI COURT LACKED JURISDICTION OVER EITHER THE
PARTIES OR THE SUBJECT MATTER.  WE DO NOT SUGGEST THAT PETITIONER BY
PROVING HIS CLAIM IN JUDGMENT FORM CAN GAIN A PRIORITY WHICH HE WOULD
NOT HAVE HAD IF HE HAD TO RELITIGATE HIS CLAIM IN ILLINOIS.  AND, AS WE
HAVE SAID, THERE IS NOT INVOLVED IN THIS CASE ANY RULE OF DISTRIBUTION
WHICH DEPARTS FROM THE PRINCIPLE OF PARITY AS BETWEEN ILLINOIS
CREDITORS AND CREDITORS FROM OTHER STATES.  SEE CLARK V. WILLIARD, 294
U.S. 211; BLAKE V. MCCLUNG, SUPRA.  REVERSED. 

FN1  IT DOES NOT APPEAR THAT THERE IS ANY PROPERTY OF THE DEBTOR IN
MISSOURI; NOR WAS A LIQUIDATOR APPOINTED IN MISSOURI. 

FN2  ATTORNEY GENERAL V. SUPREME COUNCIL, 196 MASS. 151, 159, 81 N.E.
966(RECEIVERSHIP); HACKETT V. SUPREME COUNCIL, 206 MASS. 139, 142, 92
N.E. 133(RECEIVERSHIP). 

THE ILLINOIS RULE ANNOUNCED IN THE INSTANT CASE IS LIKEWISE
APPLICABLE IN RECEIVERSHIP PROCEEDINGS.  EVANS V. ILLINOIS SURETY CO.,
319 ILL. 105, 149 N.E. 802. 

CONTRA:  PRINGLE V. WOOLWORTH, 90 N.Y. 502(RECEIVERSHIP).  THE
FEDERAL RECEIVERSHIP RULE PERMITS CONTINUANCE OF SUITS IN OTHER COURTS
AT LEAST WHERE THEY WERE PENDING AT THE TIME OF THE APPOINTMENT OF THE
RECEIVER.  RIEHLE V. MARGOLIES, SUPRA. AND SEE CHICAGO TITLE & T. CO.
V. FOX THEATRES CORP., SUPRA, AND DICKINSON V. UNIVERSAL SERVICE
STATIONS, 100 F.2D 753, 757, APPLYING THE RIEHLE RULING TO A SUIT
STARTED IN A STATE COURT AFTER THE RECEIVERSHIP.  FOR COLLECTION OF
CASES SEE 96 A.L.R. 485. 

FN3  SEE IN RE PARAMOUNT PUBLIX CORP., 85 F.2D 42, AND CASES
COLLECTED IN 106 A.L.R. PP. 1121 ET SEQ.  CF. ROBINSON V. TRUSTEES, 318
MASS. 121, 60 N.E.2D 593; IN RE CHICAGO & E.I. RY. CO., 121 F.2D 785. 

MR. JUSTICE FRANKFURTER, WITH WHOM CONCUR MR. JUSTICE BLACK AND MR.
JUSTICE RUTLEDGE, DISSENTING. 

SO FAR AS THEY ARE RELEVANT TO THE QUESTION BEFORE US, THE FACTS OF
THIS CASE MAY BE BRIEFLY STATED.  AS PART OF ITS POLICY IN REGULATING
THE INSURANCE BUSINESS, ILLINOIS HAS FORMULATED A SYSTEM FOR
LIQUIDATING THE BUSINESS OF ANY ILLINOIS INSURANCE CONCERN THAT FALLS
BELOW REQUISITE STANDARDS.  TO THAT END IT HAS PROVIDED THAT THE TITLE
TO THE ASSETS OF SUCH AN ILLINOIS CONCERN SHOULD, UPON THE APPROVAL OF
THE ILLINOIS COURTS, PASS TO A STATE OFFICER KNOWN AS A LIQUIDATOR.  A
FURTHER PROVISION OF THE STATE LAW DEFINES THE PROCEDURE FOR ENFORCING
CLAIMS AGAINST THE ASSETS IN ILLINOIS THAT HAVE THUS PASSED INTO THE
LIQUIDATOR'S HANDS.  CLAIMS AGAINST SUCH ASSETS MUST BE PROVED TO THE
SATISFACTION OF THE LIQUIDATOR, SUBJECT TO APPROPRIATE JUDICIAL REVIEW
OF HIS DETERMINATIONS. 

IT IS NOT IN QUESTION THAT THE ILLINOIS ASSETS OF CHICAGO LLOYDS, AN
ILLINOIS INSURANCE CONCERN, PASSED INTO THE OWNERSHIP OF AN ILLINOIS
LIQUIDATOR IN DUE CONFORMITY WITH ILLINOIS LAW.  CHICAGO LLOYDS HAD
ALSO DONE BUSINESS IN MISSOURI UNDER A MISSOURI LICENSE.  WHILE THE
ILLINOIS ASSETS WERE BEING ADMINISTERED BY THE ILLINOIS LIQUIDATOR,
MORRIS, A MISSOURI CLAIMANT, PRESSED AGAINST CHICAGO LLOYDS IN A
MISSOURI COURT AN ACTION FOR DAMAGES BEGUN WHILE THE COMPANY WAS STILL
SOLVENT.  WITHOUT SUBSTITUTION OF THE ILLINOIS ADMINISTRATOR OR
APPEARANCE BY HIM, MORRIS OBTAINED A JUDGMENT IN THE MISSOURI COURT
AGAINST CHICAGO LLOYDS.  APPARENTLY, THERE WERE NO ASSETS IN MISSOURI
AGAINST WHICH THIS JUDGMENT COULD GO.  THEREUPON THE MISSOURI JUDGMENT
CREDITOR ASSERTED A CLAIM IN THE DISTRIBUTION OF THE ILLINOIS ASSETS ON
THE BASIS OF THE MISSOURI JUDGMENT.  THE LIQUIDATOR DECLINED TO
RECOGNIZE THE MISSOURI JUDGMENT AS SUCH, MAINTAINING THAT THE MISSOURI
CREDITOR MUST PROVE HIS CLAIM ON ITS MERITS, PRECISELY AS DID ILLINOIS
CREDITORS.  THE SUPERIOR COURT OF COOK COUNTY SUSTAINED THE LIQUIDATOR
AND DISALLOWED THE CLAIM BASED ON THE MISSOURI JUDGMENT.  DISALLOWANCE
WAS AFFIRMED BY THE SUPREME COURT OF ILLINOIS.  391 ILL. 492, 63 N.E.2D
479.  THE QUESTION NOW HERE IS WHETHER IN DISALLOWING THE CLAIM BASED
ON THE MISSOURI JUDGMENT AGAINST CHICAGO LLOYDS, ILLINOIS FAILED TO
GIVE FULL FAITH AND CREDIT TO THE JUDGMENT OF A SISTER STATE, AS
REQUIRED BY ARTICLE IV, SEC. 1 OF THE CONSTITUTION, AND 1 STAT. 122, 2
STAT. 299, 28 U.S.C. SEC. 687. 

WE HAVE UNDER REVIEW A DECISION OF THE ILLINOIS SUPREME COURT
REGARDING THE MODE OF PROVING CLAIMS AGAINST ILLINOIS ASSETS OF AN
ILLINOIS INSURANCE COMPANY IN LIQUIDATION IN AN ILLINOIS COURT.  THE
ISSUE BEFORE US MUST BE DETERMINED, HOWEVER, AS THOUGH THE CONSTRUCTION
WHICH THE ILLINOIS SUPREME COURT PLACED UPON THE ILLINOIS LAW HAD BEEN
SPELT OUT UNAMBIGUOUSLY IN THE LEGISLATION ITSELF.  AND SO THE REAL
ISSUE IS THIS.  MAY ILLINOIS PROVIDE THAT WHEN AN INSURANCE CONCERN TO
WHICH ILLINOIS HAS GIVEN LIFE CAN, IN THE JUDGMENT OF THE STATE COURTS,
NO LONGER BE ALLOWED TO CONDUCT THE INSURANCE BUSINESS IN ILLINOIS, THE
STATE MAY TAKE OVER THE LOCAL ASSETS OF SUCH AN INSURANCE CONCERN FOR
FAIR DISTRIBUTION AMONG ALL WHO HAVE CLAIMS AGAINST THE DEFUNCT
CONCERN?  MAY THE STATE, PURSUANT TO SUCH A POLICY, ANNOUNCE IN
ADVANCE, AS A RULE OF FAIRNESS, THAT ALL CLAIMS NOT PREVIOUSLY REDUCED
TO VALID JUDGMENT, NO MATTER HOW OR WHERE THEY AROSE, IF THEY ARE TO BE
PAID OUT OF ASSETS THUS ADMINISTERED BY THE STATE, MUST BE PROVEN ON
THEIR MERITS TO THE SATISFACTION OF ILLINOIS?  AND MAY THE STATE
SPECIFY THAT THIS MODE OF PROOF APPLY ALSO TO OUT-OF-STATE CREDITORS SO
AS TO REQUIRE SUCH CREDITORS TO PROVE THE MERIT OF THEIR CLAIMS AGAINST
THE ILLINOIS ASSETS IN LIQUIDATION AS THOUGH THEY WERE ILLINOIS
CREDITORS, AND PRECLUDE THEM FROM BASING THEIR CLAIMS MERELY ON A
JUDGMENT AGAINST THE INSURANCE CONCERN, OBTAINED AFTER IT HAD LEGALLY
CEASED TO BE, AND AFTER ITS ILLINOIS ASSETS HAD BY APPROPRIATE
PROCEEDINGS PASSED INTO OWNERSHIP OF AN ILLINOIS LIQUIDATOR? 

IT IS SAFE TO SAY THAT STATE REGULATION OF THE INSURANCE BUSINESS IS
AS OLD AND AS PERVASIVE AS ANY REGULATORY POWER EXERCISED BY OUR
STATES.  SEE, E.G., OSBORN V. OZLIN, 310 U.S. 53; HOOPESTON CO. V.
CULLEN, 318 U.S. 313.  NOT EVEN THE BANKING BUSINESS, OF WHICH, AFTER
ALL, INSURANCE IS ANOTHER PHASE, HAS BEEN SUBJECTED TO SUCH CONTINUOUS
AND EXTENSIVE STATE SURVEILLANCE.  BUT WHILE BANKING HAS INCREASINGLY
BEEN ABSORBED BY FEDERAL REGULATION, THE REVERSE HAS BEEN TRUE AS TO
INSURANCE.  INDEED, AFTER A PRONOUNCEMENT BY THIS COURT THAT INSURANCE
PARTAKES OF COMMERCE BETWEEN THE STATES, CONGRESS BY PROMPT LEGISLATION
DELEGATED OR RELEGATED THE REGULATION OF INSURANCE, WITH APPROPRIATE
EXCEPTIONS, TO THE DIVERSE LAWS OF THE SEVERAL STATES.  SEE PRUDENTIAL
INSURANCE CO. V. BENJAMIN, 328 U.S. 408. 

WE ARE CONCERNED HERE SOLELY WITH THE SITUATION PRESENTED BY A
STATE'S EXERCISE OF ITS POWER OVER THE LIQUIDATION OF THE ASSETS OF AN
INSURANCE COMPANY OF ITS OWN CREATION.  IT IS IMPORTANT TO REMEMBER
THAT IN THIS AS WELL AS IN OTHER CONNECTIONS RIGHTS ARE LARGELY
DEPENDENT ON PROCEDURE.  IT SEEMS, THEREFORE, DIFFICULT TO BELIEVE THAT
WHEN THE PROPERTY OF A DOMESTIC INSURANCE COMPANY WITHIN THE CONFINES
OF A STATE COMES INTO THE STATE'S HANDS FOR THE FAIR ADMINISTRATION OF
STILL UNLIQUIDATED CLAIMS AGAINST THAT PROPERTY, THE STATE MAY NOT
PROVIDE A RULE OF PARITY IN PROVING THE AMOUNT OF ALL CLAIMS WHICH ARE
TO BE PAID OUT OF THE COMMON POT.  WE ASSUME, OF COURSE, THAT THE
PROCEDURE PRESCRIBED IS CONSISTENT WITH THE REQUIREMENTS OF DUE
PROCESS, AND NOT IN CONFLICT WITH OVERRIDING FEDERAL LEGISLATION.  IT
IS NOT SUGGESTED THAT THE PROCEDURE WHICH ILLINOIS AFFORDS DOES NOT
SATISFY THESE REQUIREMENTS.  STANDING BY ITSELF, SUCH A RULE OF
ADMINISTRATION WOULD NOT BE BEYOND THE AUTHORITY OF A STATE.  WE MUST
ASSUME IT TO BE ILLINOIS LAW THAT THE POWER TO PASS UPON CLAIMS AGAINST
PROPERTY OF A DEFUNCT ILLINOIS INSURANCE COMPANY IS LODGED IN THE
LIQUIDATOR AND THAT SUCH POWER IS NOT TO BE FORECLOSED BY A JUDGMENT
AGAINST THE DEFUNCT CONCERN AFTER TITLE PASSES TO THE LIQUIDATOR.  DOES
THE FULL FAITH AND CREDIT CLAUSE CUT THE GROUND FROM UNDER SUCH A STATE
LAW AS TO JUDGMENTS OBTAINED OUTSIDE THE STATE AFTER THE CONTROL OF THE
COMPANY AND ITS ASSETS HAD PASSED TO THE STATE? 

CONCEDEDLY, AFTER THE TITLE TO THE ILLINOIS ASSETS OF CHICAGO LLOYDS
HAS PASSED TO THE ILLINOIS LIQUIDATOR, IT WOULD NOT BE OPEN TO A
CITIZEN OF ILLINOIS TO OBTAIN IN THE COURTS OF ILLINOIS, SO AS TO SERVE
AS A BASIS OF A CLAIM IN LLOYDS ILLINOIS ASSETS, SUCH A JUDGMENT AS
MORRIS, A CITIZEN OF MISSOURI, SECURED IN THE MISSOURI COURTS.  IT IS
THOUGHT, HOWEVER, THAT BECAUSE OF ARTICLE IV, SEC. 1, OF THE
CONSTITUTION, ILLINOIS COULD NOT DENY SUCH A SUPERIOR RIGHT TO THE
MISSOURI CITIZEN WITHOUT DENYING FULL FAITH AND CREDIT TO THE MISSOURI
JUDGMENT.  BUT THE FULL FAITH AND CREDIT CLAUSE DOES NOT IMPLY THAT A
JUDGMENT VALIDLY PROCURED IN ONE STATE IS AUTOMATICALLY ENFORCEABLE IN
ANOTHER, QUITE REGARDLESS OF THE CONSEQUENCES OF SUCH ENFORCEMENT UPON
THAT STATE'S POLICY IN MATTERS PECULIARLY WITHIN ITS CONTROL.  ALASKA
PACKERS ASSN. V. INDUSTRIAL COMM'N, 294 U.S. 532, 546.  THE FULL FAITH
AND CREDIT CLAUSE DOES NOT EAT UP THE POWERS RESERVED TO THE STATES BY
THE CONSTITUTION.  THAT CLAUSE DOES NOT EMBODY AN ABSOLUTIST CONCEPTION
OF MECHANICAL APPLICABILITY.  AS IS SO OFTEN TRUE OF CONSTITUTIONAL
PROBLEMS, AN ACCOMMODATION MUST BE STRUCK BETWEEN DIFFERENT PROVISIONS
OF THE CONSTITUTION.  WHEN RIGHTS ARE ASSERTED IN ONE STATE ON THE
BASIS OF A JUDGMENT PROCURED IN ANOTHER, IT FREQUENTLY BECOMES
NECESSARY, AS IT DOES HERE, TO DEFINE THE DUTY OF THE COURTS OF THE
FORMER STATE IN VIEW OF THAT STATE'S POWER TO REGULATE ITS OWN
AFFAIRS. 

THE FULL FAITH AND CREDIT CLAUSE DOES NOT REQUIRE A STATE TO PROVIDE
A COURT FOR ENFORCING EVERY VALID SISTER STATE JUDGMENT, EVEN IF ITS
COURTS ENFORCE LIKE JUDGMENTS IN GENERAL.  ANGLO-AM. PROV.  CO. V.
DAVIS PROV.  CO. NO. 1, 191 U.S. 373.  AGAIN, A JUDGMENT IN ONE STATE
DETERMINING THE VALIDITY OF A WILL IS NOT A JUDGMENT BINDING ON ANOTHER
ALTHOUGH IT CONTROLS ISSUES OF SUCCESSION IN THE FIRST STATE. 
ROBERTSON V. PICKRELL, 109 U.S. 608; OVERBY V. GORDON, 177 U.S. 214. 
SURELY, THE FULL FAITH AND CREDIT CLAUSE DOES NOT REQUIRE A STATE TO
GIVE AN ADVANTAGE TO PERSONS DWELLING WITHOUT, WHEN STATE POLICY MAY
JUSTIFIABLY RESTRICT ITS OWN CITIZENS TO A PARTICULAR PROCEDURE IN
PROVING CLAIMS AGAINST A STATE FUND.  BUT THAT PRECISELY MIGHT BE THE
RESULT IF ILLINOIS HAD TO ACCEPT AT FACE VALUE JUDGMENTS OBTAINED
OUTSIDE ILLINOIS AGAINST A DEFUNCT ILLINOIS INSURANCE CONCERN AFTER THE
ILLINOIS ASSETS HAD PASSED TO THE ILLINOIS LIQUIDATOR. 

PRECEDENT AND POLICY SUSTAIN THE RIGHT OF ILLINOIS TO HAVE EACH
CLAIMANT PROVE HIS FAIR SHARE TO THE ASSETS IN ILLINOIS BY THE SAME
PROCEDURE.  CHICAGO LLOYDS IS AN ILLINOIS ENTITY DOING BUSINESS IN
ILLINOIS ACCORDING TO CONDITIONS WHICH ILLINOIS HAD A RIGHT TO FIX FOR
ENGAGING IN THE INSURANCE BUSINESS IN ILLINOIS.  ILLINOIS INITIATED HER
POLICY FOR LIQUIDATING INSURANCE COMPANIES IN 1925.  LLOYDS WAS FIRST
AUTHORIZED TO DO BUSINESS IN 1928, AND THEREAFTER RENEWED ANNUAL
AUTHORITY WAS REQUIRED.  MISSOURI GAVE LLOYDS ENTRY IN 1932, AND LATER
RENEWED ITS AUTHORITY FOR ADDITIONAL ONE-YEAR PERIODS.  THUS, ILLINOIS
GAVE ADVANCE NOTICE THAT IF CHICAGO LLOYDS SHOULD FALL SHORT OF THOSE
STANDARDS OF SOLVENCY AND SAFETY APPROPRIATE FOR AN INSURANCE CONCERN,
IT WILL, THROUGH A LIQUIDATOR, SEIZE THE ILLINOIS ASSETS OF CHICAGO
LLOYDS FOR THE PROTECTION OF ALL CLAIMANTS AS TO THE MERITS OF THEIR
CLAIMS.  IT WARNED THE WORLD THAT WHEN SUCH A SITUATION AROSE CLAIMS
AGAINST ASSETS IN ILLINOIS MUST BE PROVEN IN THE MANNER WHICH ILLINOIS
HAS HERE REQUIRED.  THE AUTHORIZATION TO DO LLOYDS BUSINESS IN ILLINOIS
CREATED AGAINST THE LLOYDS ASSETS IN ILLINOIS A SORT OF EQUITABLE LIEN,
TO SPEAK FREELY BUT NOT TOO LOOSELY, TO BECOME EFFECTIVE AT INSOLVENCY
AND LIQUIDATION.  TO REQUIRE THAT ALL CLAIMS AGAINST THE ESTATE IN
ILLINOIS LIQUIDATION SHOULD BE ESTABLISHED ON THEIR MERITS IN THE
ILLINOIS PROCEEDINGS MAY WELL HAVE BEEN DEEMED BY ILLINOIS THE ONLY WAY
TO PROTECT THE ESTATE AGAINST FOREIGN JUDGMENTS WHICH THE ILLINOIS
LIQUIDATOR MIGHT HAVE NO ADEQUATE MEANS OF CONTESTING.  IT IS
IRRELEVANT WHETHER IN THIS OR IN ANY OTHER PARTICULAR SITUATION THE
LIQUIDATOR COULD HAVE CONTESTED A SUIT OUTSIDE OF ILLINOIS.  CERTAINLY
NOTHING CAN TURN ON WHETHER THE ILLINOIS LIQUIDATOR APPEARS SPECIALLY
IN THE FOREIGN LITIGATION TO ASSERT THE LIQUIDATION OF THE COMPANY AND
THE VESTING OF TITLE TO ITS ASSETS IN THE STATE OF ILLINOIS.  WE ARE
CONCERNED HERE WITH THE RESPECT THAT IS TO BE ACCORDED TO A JUDGMENT
SECURED AGAINST THE COMPANY BY APPROPRIATE PROCEDURE IN ANOTHER STATE. 
EITHER SUCH A JUDGMENT, OBTAINED AFTER THE TITLE TO THE ILLINOIS ASSETS
VESTED IN THE ILLINOIS LIQUIDATOR, COULD BE PROVEN FOR THE FACE VALUE
OF THE JUDGMENT, OR IT COULD NOT.  THE RESPECT TO BE ACCORDED SUCH A
JUDGMENT MUST TURN ON THE CONTROL WHICH ILLINOIS MAY CONSTITUTIONALLY
EXERCISE IN THE ADMINISTRATION OF ILLINOIS PROPERTY.  RELEVANT TO THAT
ISSUE OF POWER IS NOT WHETHER IN A PARTICULAR SUIT THE LIQUIDATOR COULD
HAVE PROTECTED HIMSELF BY ENTERING AS A LITIGANT IN THE SUIT IN ANOTHER
STATE.  WHAT IS RELEVANT IS WHETHER ILLINOIS MAY DEEM THAT ITS
LIQUIDATOR MIGHT NOT BE ABLE ADEQUATELY TO DEFEND THE ESTATE IN
LIQUIDATION IN EVERY STATE IN WHICH A SUIT MIGHT BE PRESSED TO
JUDGMENT.  WHAT IS RELEVANT ALSO IS WHETHER IN SUCH LIQUIDATION
PROCEEDINGS ILLINOIS CAN REFUSE TO ACCEPT AT FACE VALUE A JUDGMENT
AGAINST AN ILLINOIS INSURANCE COMPANY OBTAINED AFTER THAT COMPANY HAD
CEASED TO EXIST, A JUDGMENT WHICH THE CREDITOR WOULD ENFORCE AGAINST
ASSETS WHICH PASSED TO THE STATE BEFORE THE JUDGMENT WAS OBTAINED. 

DUE REGARD FOR THE RELATIONS OF THE STATES TO ONE ANOTHER, EXPRESSED
BY APPROPRIATE RESPECT BY ONE FOR THE JUDICIAL PROCEEDINGS OF ANOTHER,
DOES NOT REQUIRE THAT THE PROVISIONS CAREFULLY ESTABLISHED BY ILLINOIS
FOR THE PROPER SAFEGUARDING OF THESE ILLINOIS ASSETS SHOULD BE
DISTURBED BY JUDGMENTS SECURED OUTSIDE OF ILLINOIS AFTER THE VERY
CONTINGENCY FOR WHICH ILLINOIS PROVIDED HAD BECOME A REALITY.  IT WOULD
BE UNFAIR THUS TO SUBORDINATE THE PRIMARY AND PREDOMINANT INTEREST OF
ILLINOIS SIMPLY BECAUSE THE ILLINOIS ENTITY WAS ALLOWED TO ENTER
MISSOURI.  MISSOURI, LIKE EVERY OTHER STATE, IN ADMITTING CHICAGO
LLOYDS HAD NOTICE OF THE CONGENITAL LIMITATIONS, SO FAR AS ILLINOIS
ASSETS WERE CONCERNED, UNDER WHICH CHICAGO LLOYDS CAME INTO BEING.  AND
SO, WHEN MISSOURI ADMITTED CHICAGO LLOYDS, IT ADMITTED AN ILLINOIS
INSURANCE CONCERN WITH FULL KNOWLEDGE OF WHAT ILLINOIS WOULD EXACT, IN
CASE TROUBLE AROSE, TO THE EXTENT OF ASSETS WITHIN THE CONTROL OF
ILLINOIS.  OF COURSE MISSOURI HAS A RIGHT TO PROVIDE FOR ITS METHODS OF
ADMINISTRATION, IN CASE OF DEFAULT, AS TO MISSOURI ASSETS.  BUT WE ARE
NOT HERE CONCERNED WITH AN ATTEMPT TO ENFORCE THE MISSOURI JUDGMENT
AGAINST MISSOURI ASSETS.  WE PUT TO ONE SIDE WHETHER ILLINOIS LAW COULD
PASS TITLE TO MISSOURI ASSETS TO THE ILLINOIS LIQUIDATOR.  SEE CLARK V.
WILLIARD, 294 U.S. 211.  WE DO SAY THAT IT IS NOT WITHIN THE POWER OF
ANY OTHER STATE, BY ADMITTING THE ILLINOIS ENTITY, TO EFFECT
DISCRIMINATION AGAINST THE CITIZENS OF ILLINOIS IN THE DISTRIBUTION OF
ILLINOIS ASSETS THAT HAD PASSED TO THE STATE, FOR THE FAIR DISTRIBUTION
OF WHICH ILLINOIS HAD FORMULATED AN APPROPRIATE METHOD OF PROOF. 

THIS ANALYSIS ASSUMES A HEAVIER BURDEN THAN THE CASE MAKES
NECESSARY.  IT IS NOT MERELY THAT MISSOURI HAD NOTICE OF THE CONDITIONS
UNDER WHICH CHICAGO LLOYDS WAS DOING BUSINESS IN ILLINOIS AND THEREBY
CHARGED ALL ITS CITIZENS WITH KNOWLEDGE OF THE LIMITED POWER OF
MISSOURI TO AFFECT ILLINOIS ASSETS UPON LIQUIDATION.  THE MISSOURI
CLAIMANT HAD ACTUAL NOTICE THAT THE ILLINOIS ASSETS HAD PASSED TO THE
ILLINOIS LIQUIDATOR AND THAT HE WAS AT LIBERTY TO COME INTO THE
ILLINOIS PROCEEDINGS TO PROVE HIS CLAIM.  THE MISSOURI CLAIMANT HAD IN
FACT COME INTO THE ILLINOIS PROCEEDINGS AND FILED HIS CLAIM WITH THE
ILLINOIS LIQUIDATOR BEFORE HE PRESSED HIS MISSOURI SUIT TO JUDGMENT. 
IT IS A STRONG THING TO SAY THAT ILLINOIS COULD NOT SAY THAT UNDER
THESE CIRCUMSTANCES THE MISSOURI CLAIMANT MUST PROVE HIS CLAIM THE WAY
EVERY CLAIMANT IN ILLINOIS WAS BOUND TO PROVE HIS.  SURELY THE
CONSTITUTION OF THE UNITED STATES DOES NOT BAR LEGISLATION BY ILLINOIS
WHICH PROVIDES A FAIR SIFTING PROCESS FOR DETERMINING THE AMOUNT OF
CLAIMS AGAINST ILLINOIS ASSETS OF AN ILLINOIS INSURANCE COMPANY IN
LIQUIDATION IN AN ILLINOIS COURT SO AS TO SECURE EQUALITY OF TREATMENT
FOR ALL WHO ASSERT CLAIMS AGAINST SUCH A FUND.  THE FULL FAITH AND
CREDIT CLAUSE DOES NOT IMPOSE UPON ILLINOIS A DUTY TO ALLOW THE FACE
VALUE OF A JUDGMENT AGAINST THE INSURANCE COMPANY SECURED IN MISSOURI
AFTER THE COMPANY'S ASSETS HAD PASSED INTO THE POSSESSION OF THE
ILLINOIS COURT, IN A PROCEEDING TO WHICH THE ILLINOIS LIQUIDATOR WAS
NOT A PARTY AND COULD NOT HAVE BEEN MADE ONE. 

THE PRECISE RELATION OF THE LIQUIDATOR'S LEGAL POSITION TO THE
MISSOURI JUDGMENT, ON THE BASIS OF WHICH MORRIS ASSERTS A CLAIM AGAINST
THE LIQUIDATOR'S ASSETS, REINFORCES THE MORE GENERAL CONSIDERATIONS. 
MORRIS HAD NO JUDGMENT AGAINST THE COMPANY WHEN BY ILLINOIS LAW TITLE
TO LLOYDS' ASSETS PASSED TO THE LIQUIDATOR.  THE MERE INSTITUTION OF
THE MISSOURI SUIT GAVE MORRIS NO GREATER RIGHT TO THE ILLINOIS ASSETS
OF LLOYDS THAN HE HAD BEFORE THE ACTION WAS BEGUN.  BY THE TIME HE
OBTAINED HIS JUDGMENT IN MISSOURI, THE COMPANY NO LONGER HAD TITLE TO
ANY ASSETS IN ILLINOIS TO WHICH THE JUDGMENT MIGHT ATTACH.  BY
UNASSAILABLE ILLINOIS LAW, LLOYDS' ASSETS HAD PASSED TO THE
LIQUIDATOR.  THESE ASSETS COULD BE REACHED ONLY BY VALID JUDGMENT
AGAINST HIM.  IN THIS RESPECT, THE LAW OF ILLINOIS CONTROLLING THE
LIQUIDATION OF LLOYDS, AS AUTHORITATIVELY GIVEN US BY THE SUPREME COURT
OF ILLINOIS, IS DECISIVELY DIFFERENT FROM WHAT THIS COURT FOUND TO BE
THE LAW OF ILLINOIS REGARDING THE ILLINOIS SURETY COMPANY IN PROCESS OF
DISSOLUTION IN EWEN V. AMERICAN FIDELITY COMPANY, 261 U.S. 322.  THE
LIQUIDATOR WAS NOT A PARTY TO THE MISSOURI ACTION; HE HAD NOT BEEN
SERVED; HE HAD NOT APPEARED; HE EXPRESSLY DENIED THE RIGHT OF LLOYDS TO
REPRESENT AND BIND THE ILLINOIS LIQUIDATION ESTATE.  THE AUTHORITY WITH
WHICH ILLINOIS CLOTHED ITS LIQUIDATOR PUT HIM UNDER A DUTY TO CONTEST
CLAIMS WHICH THE COMPANY MIGHT NOT HAVE DEEMED ITSELF UNDER DUTY TO
CONTEST, WHILE ON THE OTHER HAND IT ENABLED HIM TO RECOGNIZE, AS THE
COMPANY MIGHT NOT HAVE RECOGNIZED, THE MERIT OF CLAIMS OTHERWISE THAN
BY JUDICIAL COMMAND.  THE LIQUIDATOR, AS TRUSTEE FOR THE CREDITORS OF
THE EXTINCT ILLINOIS COMPANY, REPRESENTED INTERESTS THAT WERE NOT THE
SAME AS THOSE REPRESENTED BY THE EXTINCT COMPANY WHEN IT CONDUCTED ITS
OWN BUSINESS.  IN SHORT, THE ILLINOIS LIQUIDATOR WAS THUS A STRANGER TO
THE MISSOURI JUDGMENT AND IT CANNOT BE INVOKED AGAINST HIM IN
ILLINOIS.  SEE UNITED STATES V. CALIFORNIA BRIDGE CO., 245 U.S. 337;
KERSH LAKE DIST. V. JOHNSON, 309 U.S. 485.  INDEED, TO SUBJECT THE
ASSETS OF THE ILLINOIS LIQUIDATOR TO THE CLAIM OF A JUDGMENT OBTAINED
AGAINST LLOYDS IN MISSOURI SUBSEQUENT TO THE PASSAGE OF THOSE ASSETS TO
THE LIQUIDATOR MAY WELL RAISE CONSTITUTIONAL QUESTIONS.  RILEY V. NEW
YORK TRUST CO., 315 U.S. 343; CF. RESTATEMENT, CONFLICT OF LAWS, SEC.
450, COMMENT D. 

IT IS SUGGESTED THAT OUT-OF-STATE CREDITORS SHOULD BE SAVED THE
BURDEN OF PROVING THEIR CLAIMS IN ILLINOIS.  OF COURSE THAT IS A PROPER
CONSIDERATION, AND IT WOULD BE CONTROLLING, WHERE A CREDITOR HAS
OBTAINED JUDGMENT, IF THERE WERE NO COUNTERVAILING CONSIDERATIONS. 
AGAINST THE CLAIM OF OUT-OF-STATE CREDITORS MUST BE SET NOT MERELY THE
INTERESTS OF ILLINOIS CREDITORS, BUT ALSO THE IMPORTANCE OF A UNIFIED
LIQUIDATION ADMINISTRATION, THE BURDEN TO THE LIQUIDATOR OF DEFENDING
SUITS ANYWHERE IN THE UNITED STATES, AND THE RESULTING HAZARDS TO A
FAIR DISTRIBUTION OF THE ESTATE.  TO REQUIRE THE FACE VALUE OF THE
MISSOURI JUDGMENT OF THE MISSOURI CLAIMANT TO DETERMINE HIS SHARE OUT
OF THE ILLINOIS FUND MIGHT, OF COURSE, DILUTE THE SHARE IN THE ILLINOIS
ASSETS THAT CAN GO TO LEGITIMATE ILLINOIS CLAIMANTS.  CONSIDERING THE
PRIMARY AND PREDOMINANT RELATION OF ILLINOIS IN THE ADJUSTMENT OF THESE
CONFLICTING INTERESTS, CONSIDERING, THAT IS, THAT WE ARE DEALING WITH A
CREATURE OF ILLINOIS AND THE PROPERTY OF THAT CREATURE WITHIN HER
BOUNDS, NEITHER THE DEMANDS OF FAIRNESS NOR ANYTHING IN THE
CONSTITUTION REQUIRES THAT THE INTERESTS OF THE OUT-OF-STATE CREDITORS
SHOULD CONTROL THE CONSTITUTIONAL ISSUE.  THE RESOLUTION OF THIS
CONFLICT SO THAT THE OUT-OF-STATE CREDITOR MUST TAKE HIS PLACE WITH THE
ILLINOIS CREDITORS IS ANOTHER INSTANCE OF A PRICE TO BE PAID FOR OUR
FEDERALISM, AND IN THIS INSTANCE IT IS A VERY SMALL PRICE.  IF THE
SITUATION CALLS FOR CORRECTION BY A UNIFORM REGULATION, CONGRESS HAS
THE POWER TO DEAL WITH THE MATTER.  OR THE STATES MIGHT DO SO THROUGH
THE VARIOUS DEVICES FOR SECURING UNIFORMITY OF STATE LEGISLATION. 
ILLINOIS, IN FACT, HAS MADE OVERTURES TO ITS SISTER STATES IN THIS
REGARD.  IT HAS ADOPTED THE UNIFORM RECIPROCAL LIQUIDATION ACT AS
PROPOSED BY THE COMMISSIONERS ON UNIFORM STATE LAWS.  BY THIS ACT
CLAIMS AGAINST INSOLVENT ILLINOIS INSURANCE COMPANIES MAY BE PROVED IN
ANCILLARY PROCEEDINGS IN ANY "RECIPROCAL STATE."  ILL. LAWS 1941, PP.
832-37, REPLACING LAWS 1937, PP. 788-90, SMITH-HURD ANN. STAT. C. 73,
SEC. 833.3.  THAT MISSOURI HAS NOT SEEN FIT TO PROTECT THE INTERESTS OF
MISSOURI CREDITORS BY BECOMING A "RECIPROCAL STATE" IS NOT THE FAULT OF
ILLINOIS. 

A FINAL WORD.  IT IS SUGGESTED THAT THIS COURT IS MERELY DECIDING THE
FINALITY OF THE MISSOURI JUDGMENT IN ILLINOIS, WITHOUT ANY REGARD TO
ITS PROVABILITY ON A PARITY WITH THE CLAIMS OF ILLINOIS CREDITORS IN
THE DISTRIBUTION OF ILLINOIS ASSETS.  BUT WE ARE NOT MERELY PASSING ON
THE ABSTRACT STATUS OF THE MISSOURI JUDGMENT.  THE ONLY ISSUE THAT HAS
EVER BEEN IN THIS CASE IS THE RIGHT OF THE MISSOURI CLAIMANT TO
PARTICIPATE IN THE ILLINOIS ASSETS ON THE BASIS OF THE FACE VALUE OF
HIS JUDGMENT.  SUCH WAS THE CLAIM MADE BY THE CREDITOR; SUCH WAS THE
CLAIM DISALLOWED BY THE LIQUIDATOR; SUCH WAS THE CLAIM REJECTED BY THE
LOWER COURT, AND SUCH WAS THE DISALLOWANCE AFFIRMED BY THE SUPREME
COURT OF ILLINOIS.  IT HAS NEVER BEEN QUESTIONED THAT THE THRUST OF THE
CASE WAS THE OPPORTUNITY OF THE MISSOURI JUDGMENTCREDITOR-CLAIMANT TO
COMPETE WITH THE ILLINOIS CLAIMANTS IN THE DISTRIBUTION OF THE ESTATE
NOT ON THE BASIS OF THE MERITS OF HIS CLAIM, BUT ON THE AMOUNT FIXED BY
THE MISSOURI JUDGMENT.  NEITHER BY ANY OF THE COURTS NOR BY ANY OF THE
PARTIES WAS ANY SUGGESTION MADE THAT UNDER ILLINOIS LAW THE ILLINOIS
CREDITORS HAVE PRIORITY TO EXHAUST THE ILLINOIS ASSETS.  WHAT WAS
BEFORE THAT COURT AND WHAT IS BEFORE THIS COURT IS WHETHER A MISSOURI
CLAIMANT MAY SHARE IN THE DISTRIBUTION OF A COMMON FUND NOT ON THE
BASIS OF A CLAIM ESTABLISHED ACCORDING TO A UNIFORM PROCEDURE BUT ON
THE BASIS OF A JUDGMENT SECURED IN MISSOURI SUBSEQUENT TO THE PASSING
OF THAT FUND TO THE ILLINOIS LIQUIDATOR. 

THIS IS NOT TO SAY THAT THE MISSOURI JUDGMENT IS INVALID.  WHETHER
RECOVERY MAY BE BASED ON THIS JUDGMENT IN MISSOURI, OR IN ANY OTHER
STATE EXCEPT ILLINOIS, OR EVEN IN ILLINOIS SHOULD THE ASSETS GO OUT OF
THE STATE'S HANDS AND RETURN TO A REANIMATED CHICAGO LLOYDS, ARE
QUESTIONS THAT DO NOT NOW CALL FOR CONSIDERATION. 

THE JUDGMENT SHOULD BE AFFIRMED. 
..END :





GARDNER V. NEW JERSEY, 329 U.S. 565 


NO. 92.  ARGUED DECEMBER 20, 1946.  - DECIDED JANUARY 20, 1947.  - 152
F.2D 408, AFFIRMED IN PART AND REVERSED IN PART. 


A RAILROAD PETITIONED FOR REORGANIZATION UNDER SEC. 77 OF THE
BANKRUPTCY ACT AFTER NEW JERSEY TAXES HAD ACCRUED AGAINST IT IN AN
AGGREGATE AMOUNT EXCEEDING THE VALUE OF ITS LIQUID ASSETS AND EXTENSIVE
LITIGATION OVER THE TAX ASSESSMENTS HAD RESULTED ADVERSELY TO IT.  THE
STATE COMPTROLLER FILED ON BEHALF OF THE STATE A CLAIM FOR TAXES, PLUS
INTEREST, CLAIMING THAT, UNDER THE STATE LAW, THE SUMS OWED WERE
SECURED BY "A LIEN PARAMOUNT TO ALL OTHER LIENS UPON ALL THE LANDS AND
TANGIBLE PROPERTY AND FRANCHISES OF THE COMPANY IN THIS STATE." 
OBJECTIONS TO THE CLAIM WERE FILED BY THE DEBTOR, THE TRUSTEE, SECURITY
HOLDERS, AND AN INDENTURE TRUSTEE, WHO CLAIMED, INTER ALIA, THAT THE
DEBTOR'S PROPERTY WAS GROSSLY OVERVALUED, THAT THE DEBTOR HAD BEEN
INTENTIONALLY AND SYSTEMATICALLY DISCRIMINATED AGAINST IN MAKING THE
ASSESSMENTS, THAT NO INTEREST ACCRUED AFTER THE PETITION FOR
REORGANIZATION WAS FILED OR DURING THE PERIOD WHEN COLLECTION OF THE
TAXES WAS ENJOINED AND THE DEBTOR WAS CONTESTING THEIR VALIDITY, THAT
THE STATE HAD NO LIEN ON THE DEBTOR'S PERSONAL PROPERTY, AND THAT NO
PART OF THE STATE'S CLAIM EXCEPT THE PRINCIPAL AMOUNT OF TAXES WAS
ENTITLED TO A LIEN EQUAL OR PARAMOUNT TO THE DEBTOR'S GENERAL
MORTGAGE.  AFTER AN ATTEMPT BY THE TRUSTEE TO COMPROMISE THE STATE'S
TAX CLAIMS PURSUANT TO STATE LEGISLATION FACILITATING SUCH COMPROMISES
HAD BEEN FRUSTRATED BY A DECLARATION OF THE INVALIDITY OF THE
LEGISLATION, THE TRUSTEE PETITIONED THE REORGANIZATION COURT FOR
ADJUDICATION OF THESE CLAIMS.  APPEARING SPECIALLY, THE STATE ATTORNEY
GENERAL CLAIMED THAT ENTERTAINMENT OF THE PETITION WOULD CONSTITUTE A
PROHIBITED SUIT AGAINST THE STATE.  HELD: 

1.  THE REORGANIZATION COURT HAD JURISDICTION OVER PROOF AND
ALLOWANCE OF THE TAX CLAIMS, AND THE EXERCISE OF THAT POWER WAS NOT A
SUIT AGAINST THE STATE.  P. 572. 

2.  AS SO CONSTRUED, SEC. 77 IS CONSTITUTIONAL.  NEW YORK V. IRVING
TRUST CO., 288 U.S. 329.  P. 574. 

3. THE CONCLUSION OF THE FEDERAL DISTRICT COURT IN NEW JERSEY THAT
THE STATE COMPTROLLER HAD AUTHORITY UNDER NEW JERSEY LAW TO FILE THE
CLAIM IS ENTITLED TO SPECIAL WEIGHT, AND THIS COURT FINDS NOTHING TO
IMPEACH IT.  P. 574. 

4.  THE REORGANIZATION COURT HAS JURISDICTION OVER ALL PROPERTY OF
THE DEBTOR, INCLUDING THAT ON WHICH THE STATE ASSERTS A LIEN, AND THE
COURT'S POWER TO DEAL WITH LIENS EXTENDS TO THE LIEN CLAIMED BY THE
STATE.  P. 575. 

5.  THE REORGANIZATION COURT HAS NO POWER TO REDETERMINE FOR STATE
TAX PURPOSES THE VALUATIONS OF THE RAILROAD'S PROPERTY UNDERLYING THE
ASSESSMENTS OR THE VALIDITY OF THE ASSESSMENTS.  ARKANSAS CORPORATION
COMMISSION V. THOMPSON, 313 U.S. 132.  P. 578. 

6.  THE REORGANIZATION COURT IS NOT PRECLUDED, HOWEVER, FROM
ADJUDICATING OTHER ISSUES RAISED BY OBJECTIONS TO THE STATE'S CLAIM. 
P. 579. 

(A)  THE VALIDITY AND PRIORITY OF ONE LIEN, WHETHER OR NOT CLAIMED BY
A STATE, AS AGAINST OTHER LIENS, ARE QUESTIONS FOR THE REORGANIZATION
COURT.  P. 579. 

(B)  THE EXTENT OF THE LIEN - TO WHAT PROPERTY IT APPLIES AND WHETHER
IT IS RESTRICTED TO REALTY OR COVERS PERSONAL PROPERTY OR REVENUES AS
WELL - IS A QUESTION FOR THE REORGANIZATION COURT.  P. 580. 

(C)  EXCEPTING QUESTIONS INVOLVING THE VALUATIONS UNDERLYING THE
ASSESSMENTS AND THE VALIDITY OF THE ASSESSMENTS, THE REORGANIZATION
COURT MAY ADJUDICATE QUESTIONS PERTAINING TO THE AMOUNT OF A TAX CLAIM
SECURED BY A LIEN - E.G., WHETHER THE AMOUNT OF THE CLAIM HAS BEEN
SWOLLEN BY THE INCLUSION OF FORBIDDEN PENALTIES, WHAT CLAIMS SOUGHT TO
BE PROVED BY THE STATE ARE "PENALTIES," THE APPLICABILITY OF SEC. 57J
TO REORGANIZATIONS UNDER SEC. 77, THE LIABILITY OF THE ESTATE FOR
PENALTIES INCURRED BY THE TRUSTEE IN THE OPERATION OF THE BUSINESS, AND
WHAT INTEREST, IF ANY, ACCRUES AFTER THE PETITION FOR REORGANIZATION
HAS BEEN FILED.  P. 580. 

(D)  THROUGH APPROPRIATE EXERCISE OF THE POWER TO COMPROMISE OR
SETTLE CLAIMS, THE COURT MAY AUTHORIZE THE TRUSTEE TO COMPROMISE
CLAIMS, SECURED OR UNSECURED, AND MAY APPROVE EQUITABLE ADJUSTMENTS OF
THEM, THUS REDUCING OR OTHERWISE AFFECTING THE PARTICIPATION THAT THE
CLAIMANT, WHETHER A STATE OR ANOTHER, MAY HAVE IN THE RES WHICH IS IN
CUSTODIA LEGIS.  P. 581. 

7.  THIS COURT WILL NOT PASS ON QUESTIONS OF LOCAL LAW AS TO THE
VALIDITY OR EFFECT OF SETTLEMENTS MADE IN ACCORDANCE WITH STATE
LEGISLATION LATER HELD INVALID, SINCE THOSE QUESTIONS HAVE NOT BEEN
PASSED UPON BY EITHER THE REORGANIZATION COURT OR THE CIRCUIT COURT OF
APPEALS, BOTH OF WHICH HAVE GREATER FAMILIARITY THAN THIS COURT WITH
LOCAL LAW AND LOCAL PRACTICE.  PP. 582-583. 

8.  THESE RULINGS ARE SUBJECT TO THE LIMITATION THAT RES JUDICATA MAY
HAVE MADE BINDING ON THE REORGANIZATION COURT VARIOUS QUESTIONS OF
LOCAL LAW, INCLUDING THE AMOUNT AND VALIDITY OF THE TAXES UNDER THE
STATE LAW AND THE CHARACTER AND EXTENT OF THE LIEN WHICH THAT LAW
AFFORDS THEM.  P. 584. 

GARDNER, TRUSTEE, V. NEW JERSEY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

IN A PROCEEDING FOR THE REORGANIZATION OF A RAILROAD UNDER SEC. 77 OF
THE BANKRUPTCY ACT, THE REORGANIZATION COURT CONFIRMED A REPORT OF A
SPECIAL MASTER FINDING THAT (1) CERTAIN PROOFS OF CLAIM OF NEW JERSEY
FOR TAXES WERE PROPERLY FILED BY STATE OFFICERS ACTING IN PURSUANCE OF
THEIR STATUTORY AUTHORITY, (2) SEC. 77 CONFERS ON THE REORGANIZATION
COURT JURISDICTION OVER THE KIND OF CLAIMS ASSERTED BY THE STATE IN THE
PROCEEDING, AND SUCH CONSTRUCTION OF THE ACT IS NOT UNCONSTITUTIONAL,
AND (3) THE ENTIRE PROPERTY OF THE DEBTOR IS IN CUSTODIA LEGIS, SUBJECT
TO THE RIGHTS OF LIENHOLDERS, AND THE REORGANIZATION COURT IS THE
PROPER COURT TO DETERMINE THE VALIDITY AND AMOUNT OF THE TAX CLAIMS,
SUBJECT TO CERTAIN LIMITATIONS.  NEW JERSEY APPEALED AND PETITIONED FOR
A WRIT OF PROHIBITION.  THE CIRCUIT COURT OF APPEALS REVERSED THE ORDER
OF THE REORGANIZATION COURT AND DISMISSED THE APPLICATION FOR A WRIT OF
PROHIBITION.  152 F.2D 408.  THIS COURT GRANTED CERTIORARI.  328 U.S.
876.  AFFIRMED IN PART AND REVERSED IN PART, P. 584. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, HERE ON CERTIORARI, PRESENTS IMPORTANT PROBLEMS UNDER SEC.
77 OF THE BANKRUPTCY ACT.  49 STAT. 911, 11 U.S.C. SEC. 205.  THE
CENTRAL RAILROAD COMPANY OF NEW JERSEY (THE DEBTOR), OF WHICH
PETITIONER IS TRUSTEE, FILED ITS PETITION FOR REORGANIZATION IN 1939
SHORTLY AFTER RECEIVING NOTICE FROM THE ATTORNEY GENERAL OF NEW JERSEY
THAT HE WOULD APPLY TO A STATE COURT FOR A SUMMARY JUDGMENT FOR UNPAID
TAXES OF THE DEBTOR AND SEEK TO SELL ITS PROPERTY IN SATISFACTION OF
THE JUDGMENT.  THE TAX ASSESSMENTS FOR THE YEARS 1932 TO 1939 HAD BEEN
EXTENSIVELY LITIGATED BOTH IN THE STATE AND FEDERAL COURTS AND THE
RESULTS WERE FOR THE MOST PART ADVERSE TO THE DEBTOR.  FN1 BY THE END
OF 1939 THE TAX CLAIMS OF THE STATE AGAINST THE DEBTOR, EXCLUSIVE OF
INTEREST AND PENALTIES, EXCEEDED $15,000,000, WHILE THE LIQUID ASSETS
OF THE DEBTOR AVAILABLE TO PAY THEM WERE APPARENTLY LESS THAN HALF THAT
AMOUNT.  THE REORGANIZATION COURT STAYED SUITS TO COLLECT THE TAXES BUT
FROM TIME TO TIME ENTERED ORDERS DIRECTING THE DEBTOR TO MAKE SPECIFIED
INSTALLMENT PAYMENTS ON ACCOUNT OF THE TAXES FOR VARIOUS YEARS. 

IN 1941 THE NEW JERSEY LEGISLATURE PASSED A LAW DESIGNED TO LESSEN
THE TAX BURDEN OF RAILROADS IN THE STATE.  P.L. 1941, CHS.  290, 291. 
THIS LAW WAS IMPLEMENTED AND SOMEWHAT MODIFIED IN 1942.  P.L. 1942,
CHS.  169, 241.  THESE ACTS INCLUDED CHANGES IN THE TAX RATES AND
PROVIDED FOR INSTALLMENT PAYMENTS OF THE FULL PRINCIPAL AMOUNT OF
UNPAID PROPERTY TAXES WITHOUT INTEREST OR PENALTIES, WHICH WERE DUE ON
OR BEFORE DECEMBER 1, 1940.  THE STATUTORY SETTLEMENT OF THE CLAIMS WAS
CONDITIONED ON (1) THE EXECUTION OF INSTALLMENT PAYMENT PLANS AND THE
PAYMENT OF THE FIRST INSTALLMENT, AND (2) A WAIVER OF ALL RIGHTS TO
CONTEST THE LEGALITY OR AMOUNT OF ANY ASSESSMENT MADE PRIOR TO DECEMBER
1, 1941, TOGETHER WITH WRITTEN CONSENT TO THE DISCONTINUANCE AND
DISMISSAL OF ALL PENDING SUITS CONCERNING SUCH ASSESSMENTS.  THE
REORGANIZATION COURT AUTHORIZED PETITIONER TO SETTLE AND COMPROMISE THE
DELINQUENT TAXES IN ACCORDANCE WITH THE PROVISIONS OF THESE ACTS. 
PETITIONER UNDERTOOK TO COMPLY WITH THE STATUTORY REQUIREMENTS, FILING
DOCUMENTS AND PAYMENTS REQUIRED OF A DELINQUENT TAXPAYER, DISCONTINUING
LITIGATION, AND CONSENTING TO THE DISCONTINUANCE OF PENDING APPEALS. 
FN2  THE STATE OFFICIALS - THE ATTORNEY GENERAL, TREASURER, AND
COMPTROLLER - DID NOT ACCEPT THESE TENDERS.  FN3  INSTEAD, THE ATTORNEY
GENERAL INSTITUTED SUIT TO ENJOIN THE TREASURER FROM CARRYING OUT THE
PROVISIONS OF THE 1941 AND 1942 ACTS.  THE RESULT WAS A HOLDING THAT
THE ACTS VIOLATED THE NEW JERSEY CONSTITUTION.  WILENTZ V. HENDRICKSON,
135 N.J. EQ. 244, 38 A.2D 199. 

MEANWHILE THE REORGANIZATION COURT SET A TIME WITHIN WHICH ALL CLAIMS
AGAINST THE DEBTOR SHOULD BE FILED.  IN COMPLIANCE THEREWITH THE STATE
COMPTROLLER FILED ON BEHALF OF THE STATE OF NEW JERSEY A CLAIM FOR
TAXES OWING IT.  FN4  THE PROOF OF CLAIM STATED THAT OVER $18,000,000
HAD BEEN PAID ON THE TAX CLAIM, LEAVING UNPAID SOME $12,000,000, PLUS
INTEREST OF OVER $7,700,000, PLUS ADDITIONAL INTEREST ON THOSE SUMS
FROM DECEMBER 1, 1940.  THE PROOF OF CLAIM ALSO STATED THAT UNDER NEW
JERSEY LAW THE SUMS OWED WERE SECURED BY "A LIEN PARAMOUNT TO ALL OTHER
LIENS UPON ALL THE LANDS AND TANGIBLE PROPERTY AND FRANCHISES OF THE
COMPANY IN THIS STATE." 

THE DEBTOR AND TRUSTEE FILED INITIAL OBJECTIONS TO THE CLAIM.  THEY
CONTENDED THAT THE PROPERTY OF THE DEBTOR WAS GROSSLY OVERVALUED AND
THAT THE DEBTOR AND OTHER RAILROADS HAD BEEN INTENTIONALLY AND
SYSTEMATICALLY DISCRIMINATED AGAINST IN THE MAKING OF THE ASSESSMENTS. 
THEY ALSO OBJECTED TO THE INTEREST OR PENALTY PART OF THE CLAIM,
CONTENDING, INTER ALIA, THAT NO INTEREST ACCRUED AFTER THE DATE WHEN
THE DEBTOR'S PETITION FOR REORGANIZATION WAS FILED OR DURING THE PERIOD
WHEN COLLECTION OF THE TAXES WAS ENJOINED AND THE DEBTOR WAS IN GOOD
FAITH CONTESTING THEIR VALIDITY.  SUBSEQUENTLY THEY OBJECTED TO THE
CLAIM ON THE FURTHER GROUND THAT ITS AMOUNT AND THE TIME ALLOWED FOR
ITS PAYMENT WERE GOVERNED BY THE TERMS OF SETTLEMENT OR COMPROMISE
TENDERED UNDER THE 1941 AND 1942 ACTS OF THE NEW JERSEY LEGISLATURE. 
THEY ALSO CONTENDED THAT NEW JERSEY HAD NO LIEN ON THE DEBTOR'S
PERSONAL PROPERTY.  LIKE OBJECTIONS WERE MADE BY A GROUP OF SECURITY
HOLDERS OF THE DEBTOR AND BY AN INDENTURE TRUSTEE.  THEY ALSO OBJECTED
TO THE STATE'S CLAIM ON THE GROUND THAT NO PART OF IT OTHER THAN THAT
REPRESENTING THE PRINCIPAL AMOUNT OF TAXES WAS ENTITLED TO A LIEN EQUAL
OR PARAMOUNT TO THE DEBTOR'S GENERAL MORTGAGE. 

NEW JERSEY, THROUGH HER ATTORNEY GENERAL, FILED REPLIES TO THE
VARIOUS OBJECTIONS WHICH HAD BEEN MADE TO HER CLAIM, STATING, INTER
ALIA, THAT THE PRINCIPAL AMOUNT OF THE CLAIM HAD BEEN FINALLY
ADJUDICATED AND WAS LAWFULLY OWING, THAT THE PRINCIPAL AMOUNT TOGETHER
WITH INTEREST WAS ENTITLED TO PRIORITY UNDER SEC. 64 OF THE BANKRUPTCY
ACT, AND THAT THE CLAIM WAS ENTITLED TO A PARAMOUNT LIEN ON ALL THE
LANDS, TANGIBLE PROPERTY, AND FRANCHISES OF THE DEBTOR. 

SHORTLY AFTER WILENTZ V. HENDRICKSON, SUPRA, WAS DECIDED, THE TRUSTEE
FILED WITH THE REORGANIZATION COURT A PETITION FOR ADJUDICATION OF NEW
JERSEY'S TAX CLAIMS WHICH IN SUBSTANCE RECAPITULATED HIS EARLIER
OBJECTIONS TO THE CLAIM AND ASKED FOR AN ADJUDICATION THAT THE
SETTLEMENT OR COMPROMISE TENDERED UNDER THE 1941 AND 1942 ACTS OF NEW
JERSEY WAS BINDING; OR ALTERNATIVELY, IF IT WAS NOT BINDING, A
DETERMINATION OF THE EXTENT TO WHICH THE CLAIM SHOULD BE ALLOWED AND
THE RELATIVE RIGHTS, LIENS AND PRIORITIES OF THE VARIOUS CLAIMANTS IN
THE DEBTOR'S ASSETS. 

THE ATTORNEY GENERAL OF NEW JERSEY THEREUPON ENTERED A SPECIAL
APPEARANCE IN THE PROCEEDINGS, CLAIMING, INTER ALIA, THAT THE
ENTERTAINMENT OF THE PETITION WOULD CONSTITUTE A PROHIBITED SUIT
AGAINST THE STATE, BOTH AS RESPECTS THE DETERMINATION OF THE AMOUNT OF
THE CLAIM AND ITS PRIORITY OR LIEN. 

THE REORGANIZATION COURT REFERRED NEW JERSEY'S CLAIM TO A SPECIAL
MASTER TO CONSIDER THIS ADDITIONAL CONTENTION OF THE STATE, AS WELL AS
THE PREVIOUS OBJECTIONS TO IT AND THE STATE'S REPLIES THERETO. 

THE SPECIAL MASTER RENDERED A REPORT IN 1945 IN WHICH HE FOUND (1)
THAT THE PROOFS OF CLAIM OF NEW JERSEY WERE PROPERLY FILED BY STATE
OFFICERS ACTING IN PURSUANCE OF THEIR STATUTORY AUTHORITY; (2) THAT
SEC. 77 CONFERS ON THE REORGANIZATION COURT JURISDICTION OVER THE KIND
OF CLAIMS ASSERTED BY THE STATE IN THE PROCEEDING AND THAT SUCH
CONSTRUCTION OF THE ACT IS NOT UNCONSTITUTIONAL; AND (3) THAT THE
ENTIRE PROPERTY OF THE DEBTOR IS IN CUSTODIA LEGIS SUBJECT TO THE
RIGHTS OF LIENHOLDERS, AND THAT THE REORGANIZATION COURT IS THE PROPER
COURT TO DETERMINE THE VALIDITY AND AMOUNT OF THE TAX CLAIMS AND THEIR
LIEN, SUBJECT TO THE LIMITATIONS OF ARKANSAS CORPORATION COMMISSION V.
THOMPSON, 313 U.S. 132, WHICH HE DID NOT THINK WERE PRESENTLY INVOLVED
IN THE PROCEEDINGS.  NEW JERSEY, THROUGH HER ATTORNEY GENERAL, FILED
OBJECTIONS TO THE REPORT.  THE REORGANIZATION COURT OVERRULED THEM AND
ADOPTED AND CONFIRMED THE REPORT.  NEW JERSEY TOOK AN APPEAL TO THE
CIRCUIT COURT OF APPEALS.  SHE ALSO FILED IN THAT COURT A PETITION FOR
A WRIT OF PROHIBITION IN WHICH SHE CHALLENGED THE RULINGS OF THE
REORGANIZATION COURT ON THE SAME GROUNDS. 

THE CIRCUIT COURT OF APPEALS TREATED THE APPEAL AS IF ALL OF THE
QUESTIONS PRESENTED WERE COVERED BY ARKANSAS CORPORATION COMMISSION V.
THOMPSON, SUPRA.  IT HELD THAT THE "ONLY MATTERS LEFT OPEN" FOR THE
REORGANIZATION COURT WERE (1) MATHEMATICAL ERROR IN THE COMPUTATION OF
THE AMOUNT OF THE TAX OR (2) LEGAL ERROR IN ITS ASSESSMENT.  IT
ACCORDINGLY REVERSED THE ORDER OF THE REORGANIZATION COURT AND
DISMISSED THE APPLICATION FOR A WRIT OF PROHIBITION.  152 F.2D 408,
418. 

FIRST.  WE THINK, CONTRARY TO THE POSITION OF NEW JERSEY, THAT THE
REORGANIZATION COURT HAD JURISDICTION OVER THE PROOF AND ALLOWANCE OF
THE TAX CLAIMS AND THAT THE EXERCISE OF THAT POWER WAS NOT A SUIT
AGAINST THE STATE.  SECTION 77 DEALS NOT ONLY WITH CLAIMS OF PRIVATE
PARTIES BUT WITH THOSE OF PUBLIC AGENCIES AS WELL.  SECTION 77(B)
DEFINES "CREDITORS" AS "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 ACT."  AND "CLAIMS" ARE
DEFINED TO INCLUDE "DEBTS, WHETHER LIQUIDATED OR UNLIQUIDATED,
SECURITIES (OTHER THAN STOCK AND OPTION WARRANTS TO SUBSCRIBE TO
STOCK), LIENS, OR OTHER INTERESTS OF WHATEVER CHARACTER."  ID.  AND
SEC. 77(C)(7) PROVIDES FOR THE PROMPT FIXING OF A REASONABLE TIME
WITHIN WHICH THE "CLAIMS OF CREDITORS" MAY BE FILED AND THE MANNER IN
WHICH THEY MAY BE FILED AND ALLOWED.  THE WORDS "ALL HOLDERS OF CLAIMS"
HAVE NO QUALIFICATION AND ARE SUFFICIENTLY BROAD TO INCLUDE PUBLIC
AGENCIES AS WELL AS PRIVATE PARTIES.  THE "CLAIMS" OF CREDITORS INCLUDE
SECURED AND UNSECURED CLAIMS.  WE FIND NOT THE SLIGHTEST SUGGESTION
THAT CONGRESS LEFT OUT THE LARGE CLASS OF TAX CLAIMS WHICH RECURRINGLY
APPEARS IN REORGANIZATIONS AND OFTEN ASSUMES, AS HERE, LARGE
PROPORTIONS.  THEY ARE EXPRESSLY INCLUDED AMONG PROVABLE CLAIMS IN SEC.
57N OF THE BANKRUPTCY ACT, 52 STAT. 840, 867, 11 U.S.C. SEC. 93(N). 
FN5 AND THE SWEEPING, ALL-INCLUSIVE DEFINITIONS OF "CLAIMS" AND
"CREDITORS" IN SEC. 77 LEAVE ROOM FOR NO EXCEPTION UNDER IT. 

WHEN A STATE FILES A PROOF OF CLAIM IN THE REORGANIZATION COURT, IT
IS USING A TRADITIONAL METHOD OF COLLECTING A DEBT.  A PROOF OF CLAIM
IS, OF COURSE, PRIMA FACIE EVIDENCE OF ITS VALIDITY.  WHITNEY V.
DRESSER, 200 U.S. 532.  BUT THE BANKRUPTCY COURT WHOSE AID IS SOUGHT
FOR ENFORCEMENT OF AN ASSERTED CLAIM IS NOT BOUND TO TREAT THE TENDERED
PROOF AS CONCLUSIVE.  WHEN OBJECTIONS ARE MADE, IT IS DUTY BOUND TO
PASS ON THEM.  THAT PROCESS IS, INDEED, OF BASIC IMPORTANCE IN THE
ADMINISTRATION OF A BANKRUPTCY ESTATE WHETHER THE OBJECTIVE BE
LIQUIDATION OR REORGANIZATION.  WITHOUT THAT SIFTING PROCESS,
UNMERITORIOUS OR EXCESSIVE CLAIMS MIGHT DILUTE THE PARTICIPATION OF THE
LEGITIMATE CLAIMANTS. 

IT IS TRADITIONAL BANKRUPTCY LAW THAT HE WHO INVOKES THE AID OF THE
BANKRUPTCY COURT BY OFFERING A PROOF OF CLAIM AND DEMANDING ITS
ALLOWANCE MUST ABIDE THE CONSEQUENCES OF THAT PROCEDURE.  WISWALL V.
CAMPBELL, 93 U.S. 347, 351.  IF THE CLAIMANT IS A STATE, THE PROCEDURE
OF PROOF AND ALLOWANCE IS NOT TRANSMUTED INTO A SUIT AGAINST THE STATE
BECAUSE THE COURT ENTERTAINS OBJECTIONS TO THE CLAIM.  THE STATE IS
SEEKING SOMETHING FROM THE DEBTOR.  NO JUDGMENT IS SOUGHT AGAINST THE
STATE.  THE WHOLE PROCESS OF PROOF, ALLOWANCE, AND DISTRIBUTION IS,
SHORTLY SPEAKING, AN ADJUDICATION OF INTERESTS CLAIMED IN A RES. IT IS
NONE THE LESS SUCH BECAUSE THE CLAIM IS REJECTED IN TOTO, REDUCED IN
PART, GIVEN A PRIORITY INFERIOR TO THAT CLAIMED, OR SATISFIED IN SOME
WAY OTHER THAN PAYMENT IN CASH.  WHEN THE STATE BECOMES THE ACTOR AND
FILES A CLAIM AGAINST THE FUND, IT WAIVES ANY IMMUNITY WHICH IT
OTHERWISE MIGHT HAVE HAD RESPECTING THE ADJUDICATION OF THE CLAIM.  SEE
CLARK V. BARNARD, 108 U.S. 436, 447-448; GUNTER V. ATLANTIC COAST LINE,
200 U.S. 273, 284-289; MISSOURI V. FISKE, 290 U.S. 18, 24-25. 

THE EXTENT OF THE CONSTITUTIONAL AUTHORITY OF THE BANKRUPTCY COURT IN
THIS RESPECT WAS PASSED UPON IN NEW YORK V. IRVING TRUST CO., 288 U.S.
329.  IN THAT CASE THE COURT SUSTAINED AN ORDER OF THE BANKRUPTCY COURT
WHICH BARRED A STATE'S TAX CLAIM BECAUSE NOT FILED WITHIN THE TIME
FIXED FOR THE FILING OF CLAIMS.  THE COURT STATED, P. 333, "IF A STATE
DESIRES TO PARTICIPATE IN THE ASSETS OF A BANKRUPT, SHE MUST SUBMIT TO
APPROPRIATE REQUIREMENTS BY THE CONTROLLING POWER; OTHERWISE, ORDERLY
AND EXPEDITIOUS PROCEEDINGS WOULD BE IMPOSSIBLE AND A FUNDAMENTAL
PURPOSE OF THE BANKRUPTCY ACT WOULD BE FRUSTRATED." 

IN THE PRESENT CIRCUMSTANCES THERE IS, THEREFORE, NO COLLISION
BETWEEN SEC. 77 AND THE CONSTITUTION. 

NOR CAN WE CONCLUDE THAT THE CLAIM WAS NOT PROPERLY FILED BY THE
STATE.  THE STATE COMPTROLLER, WHO FILED THE CLAIM ON BEHALF OF THE
STATE, IS AUTHORIZED TO "INSTITUTE AND DIRECT PROSECUTION ...  FOR JUST
CLAIMS AND DEBTS DUE TO THE STATE." N.J.R.S. SEC. 52:19-10C.  AND SEE
ID., SEC. 52:19-15.  THE STATE ATTORNEY GENERAL, WHO RESISTED THE
OBJECTIONS MADE TO THE CLAIM, IS AUTHORIZED TO "ATTEND GENERALLY TO ALL
MATTERS IN WHICH THE STATE IS A PARTY OR IN WHICH ITS RIGHTS AND
INTERESTS ARE INVOLVED."  ID., SEC. 52:  17-2G.  THE SPECIAL MASTER,
WHOSE REPORT THE REORGANIZATION COURT ADOPTED, HELD THAT WHAT THESE
OFFICIALS DID IN THIS CASE WAS IN PURSUANCE OF THEIR AUTHORITY.  FOR
THAT CONCLUSION HE RELIED ON THE STATUTES WHICH WE HAVE MENTIONED AND
THE PRACTICE IN OTHER REORGANIZATION PROCEEDINGS.  THAT CONSTRUCTION OF
NEW JERSEY LAW MADE BY A FEDERAL JUDGE OF THE NEW JERSEY DISTRICT COURT
IS ENTITLED TO SPECIAL WEIGHT.  STEELE V. GENERAL MILLS, 329 U.S. 433. 
WE FIND NOTHING WHICH IMPEACHES IT.  TO HOLD OTHERWISE MIGHT, INDEED,
IMPERIL THE CLAIM WHICH NEW JERSEY SO VIGOROUSLY ASSERTS.  FOR IT
APPEARS THAT THE TIME FOR FILING CLAIMS HAS EXPIRED AND UNDER THE RULE
OF NEW YORK V. IRVING TRUST CO., SUPRA, A FILING AT THIS LATE DATE
MIGHT COME TOO LATE.  FN6 

SECOND.  NEW JERSEY CONTENDS THAT CONGRESS DID NOT INCLUDE A STATE'S
TAX LIENS WITHIN THE SCHEME OF SEC. 77 PROCEEDINGS.  THAT IS BUT
ANOTHER WAY OF SAYING THAT SINCE THE STATE'S ASSERTED LIENS ATTACHED
BEFORE THE REORGANIZATION PETITION WAS FILED, THE ONLY PROPERTY OF THE
DEBTOR IN CUSTODIA LEGIS WAS ITS EQUITY AFTER THE TAX LIENS WERE
SATISFIED. 

WE DO NOT AGREE WITH THAT CONCLUSION.  WE PARTIALLY ANSWERED THE
CONTENTION WHEN WE REVIEWED THE BROAD, ALLINCLUSIVE NATURE OF THE
DEFINITIONS OF "CREDITORS" AND "CLAIMS" CONTAINED IN SEC. 77(B).  AS
THOSE DEFINITIONS MAKE PLAIN, "ALL HOLDERS OF CLAIMS" INCLUDE THOSE WHO
ASSERT "LIENS" AGAINST THE PROPERTY OF THE DEBTOR. 

OVER ALL TYPES OF LIENS.  THUS A PLAN OF REORGANIZATION "SHALL INCLUDE
PROVISIONS MODIFYING OR ALTERING THE RIGHTS OF CREDITORS GENERALLY, OR
OF ANY CLASS OF THEM, SECURED OR UNSECURED, EITHER THROUGH THE ISSUANCE
OF NEW SECURITIES OF ANY CHARACTER OR OTHERWISE."  SEC. 77(B)(1).  A
PLAN OF REORGANIZATION MAY PROVIDE FOR "THE SALE OF ALL OR ANY PART OF
THE PROPERTY OF THE DEBTOR EITHER SUBJECT TO OR FREE FROM ANY LIEN AT
NOT LESS THAN A FAIR UPSET PRICE."  SEC. 77(B)(5).  IT MAY ORDER "THE
DISTRIBUTION OF ALL OR ANY ASSETS, OR THE PROCEEDS DERIVED FROM THE
SALE THEREOF, AMONG THOSE HAVING AN INTEREST THEREIN."  ID. OR IT MAY
PROVIDE FOR "THE SATISFACTION OR MODIFICATION OF ANY LIENS" OR "THE
CURING OR WAIVER OF DEFAULTS."  ID. THIS IS COMPREHENSIVE LANGUAGE
SUGGESTING THAT ALL LIENS ARE INCLUDED, NOT THAT SOME ARE BEYOND THE
REACH OF THE COURT.  WHILE VALID LIENS EXISTING AT THE COMMENCEMENT OF
BANKRUPTCY PROCEEDINGS HAVE ALWAYS BEEN PRESERVED, IT HAS LONG BEEN A
FUNCTION OF THE BANKRUPTCY COURT TO ASCERTAIN THEIR VALIDITY AND EXTENT
AND TO DETERMINE THE METHOD OF THEIR LIQUIDATION.  WHITNEY V. WENMAN,
198 U.S. 539, 552; ISAACS V. HOBBS TIE & TIMBER CO., 282 U.S. 734, 737
738;*  ISTRATON V. NEW, 283 U.S. 318, 321.  MOREOVER, BOTH IN
RECEIVERSHIP CASES, NEW YORK V. MACLAY, 288 U.S. 290; UNITED STATES V.
TEXAS, 314 U.S. 480, AND IN BANKRUPTCY CASES, VAN HUFFEL V. HARKELRODE,
284 U.S. 225; NEW YORK V. IRVING TRUST CO., SUPRA, THE AUTHORITY OF THE
COURT TO DEAL WITH THE LIEN OF A STATE HAS LONG BEEN RECOGNIZED.  IN
REORGANIZATION CASES THE TASK OF RESOLVING DISPUTES AS TO LIENS IS A
COMMON ONE FOR THE COURT.  SEE INSTITUTIONAL INVESTORS V. CHICAGO, M.,
ST. P. & P.R. CO., 318 U.S. 523, 569.  INDEED, BEFORE A PLAN OF
REORGANIZATION CAN BE DESIGNED IN ACCORD WITH FAIR AND EQUITABLE
REQUIREMENTS, LIENS MUST BE DISENTANGLED AND THEIR RELATIVE PRIORITIES
ASCERTAINED.  THIS PROBLEM, PRESENT IN MOST REORGANIZATIONS, IS ACUTE
IN THE RAILROAD FIELD. 

IF THE REORGANIZATION COURT LACKED THE POWER TO DEAL WITH TAX LIENS
OF A STATE, THE ASSERTION BY A STATE OF A LIEN WOULD PULL OUT CHUNKS OF
AN ESTATE FROM THE REORGANIZATION COURT AND TRANSFER A PART OF THE
STRUGGLE OVER THE CORPUS INTO TAX BUREAUS AND OTHER STATE TRIBUNALS. 
THAT WOULD NOT ONLY SERIOUSLY IMPAIR THE POWER OF THE COURT TO
ADMINISTER THE ESTATE AND ADVERSELY AFFECT THE POWER OF THE INTERSTATE
COMMERCE COMMISSION AND THE COURT TO PROMULGATE A REORGANIZATION PLAN. 
SEE ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448, 466-475; SMITH V.
HOBOKEN RAILROAD, W. & S.C. CO., 328 U.S. 123.  IT WOULD FLY IN THE
TEETH OF SEC. 77(A), WHICH GRANTS THE REORGANIZATION COURT "EXCLUSIVE
JURISDICTION OF THE DEBTOR AND ITS PROPERTY WHEREVER LOCATED."  THAT
JURISDICTION IS NOT LIMITED TO THE PREVENTION OF INTERFERENCE WITH THE
USE OF THE PROPERTY BY THE TRUSTEE; IT "EXTENDS ALSO TO THE
ADJUDICATION OF QUESTIONS RESPECTING THE TITLE."  EX PARTE BALDWIN, 291
U.S. 610, 616; THOMPSON V. TEXAS MEXICAN RY. CO., 328 U.S. 134, 140. 
IT IS THE EXCLUSIVE JURISDICTION OF THE REORGANIZATION COURT WHICH
GIVES IT POWER TO PRESERVE THE RAILWAY AS A UNIT AND AS A GOING CONCERN
AND TO PREVENT IT FROM BEING DIVIDED UP AND DISMEMBERED PIECEMEAL. 
ONLY IN THAT WAY CAN CONTINUOUS OPERATION OF THE ROAD BE ASSURED AND A
PLAN OF REORGANIZATION BE EFFECTED WHICH NOT ONLY SAFEGUARDS THE
INTERESTS OF THE VARIOUS CLAIMANTS BUT IS ALSO COMPATIBLE WITH THE
PUBLIC INTEREST.  CONTINENTAL BANK V. CHICAGO, R.I. & P.R. CO., 294
U.S. 648; SMITH V. HOBOKEN RAILROAD, W. & S.C. CO., SUPRA. 

WHEN SEC. 77 IS READ AGAINST THIS HISTORICAL BACKGROUND AND IN LIGHT
OF PRACTICAL REQUIREMENTS, WE CANNOT CONCEIVE THAT CONGRESS GAVE THE
REORGANIZATION COURT POWER LESS REPLETE THAN THE SWEEPING LANGUAGE OF
SEC. 77 SUGGESTS. 

THE CONSTITUTIONAL AUTHORITY OF CONGRESS TO GRANT THE BANKRUPTCY
COURT POWER TO DEAL WITH THE LIEN OF A STATE HAS BEEN SETTLED.  IN VAN
HUFFEL V. HARKELRODE, SUPRA, THE COURT HELD THAT THE BANKRUPTCY COURT
WAS CONSTITUTIONALLY EMPOWERED TO ORDER A SALE OF PROPERTY OF A
BANKRUPT FREE AND CLEAR OF A LIEN OF A STATE FOR TAXES. 

WE HOLD THAT THE REORGANIZATION COURT HAS JURISDICTION OVER ALL OF
THE PROPERTY OF THE DEBTOR, INCLUDING THAT ON WHICH NEW JERSEY ASSERTS
A LIEN, AND THAT THE POWER OF THE COURT TO DEAL WITH LIENS EXTENDS TO
THE LIEN WHICH NEW JERSEY CLAIMS.  FN7 

THIRD.  WE HELD IN ARKANSAS CORPORATION COMMISSION V. THOMPSON,
SUPRA, THAT THE REORGANIZATION COURT LACKED THE POWER UNDER SEC. 77 TO
REDETERMINE FOR STATE TAX PURPOSES THE PROPERTY VALUE OF A RAILROAD
WHERE THAT VALUE HAD ALREADY BEEN DETERMINED IN STATE PROCEEDINGS WHICH
AFFORDED AMPLE PROTECTION TO THE RAILROAD'S RIGHTS.  WE ADHERE TO THAT
DECISION.  ITS RULING PRECLUDES REDETERMINATION BY THE REORGANIZATION
COURT IN THIS CASE OF THE VALUATIONS UNDERLYING THE ASSESSMENTS MADE BY
THE STATE AUTHORITIES AND THE VALIDITY OF THOSE ASSESSMENTS USED AS THE
BASIS FOR THE COMPUTATION OF THE TAXES.  IT MAY NOT THEREFORE ENTERTAIN
THE OBJECTIONS TO NEW JERSEY'S CLAIM WHICH TENDER THOSE ISSUES.  THE
PROPER TRIBUNALS WHERE THOSE ISSUES MAY BE LITIGATED, IF THEY ARE STILL
OPEN FOR ANY YEAR, ARE THE STATE AGENCIES AND COURTS AND, UNDER SPECIAL
CIRCUMSTANCES, THE FEDERAL COURTS.  HILLSBOROUGH V. CROMWELL, 326 U.S.
620.  THE CIRCUIT COURT OF APPEALS HAS REVIEWED AT LENGTH THE NEW
JERSEY PROCEDURE AVAILABLE FOR CHALLENGING THE VALUATIONS WHICH
UNDERLIE ASSESSMENTS.  152 F.2D PP. 411-414.  BY THE STANDARDS OF
ARKANSAS CORPORATION COMMISSION V. THOMPSON, SUPRA, THAT PROCEDURE IS
ADEQUATE, SO THAT RELITIGATION OF THE QUESTION IN THE REORGANIZATION
PROCEEDINGS WOULD NOT BE APPROPRIATE. 

FOURTH.  THE RULE OF ARKANSAS CORPORATION COMMISSION V. THOMPSON,
SUPRA, DOES NOT, HOWEVER, PRECLUDE THE REORGANIZATION COURT FROM
ADJUDICATING THE OTHER ISSUES RAISED BY THE OBJECTIONS TO NEW JERSEY'S
CLAIM.  THE CONTRARY VIEW, WHICH THE CIRCUIT COURT OF APPEALS
APPARENTLY TOOK, FAILS TO RECOGNIZE HISTORIC BANKRUPTCY POWERS WHICH,
AS WE HAVE ALREADY POINTED OUT,  FN8  ARE PART OF THE ARSENAL OF
AUTHORITY GRANTED THE REORGANIZATION COURT BY SEC. 77. 

(1)  THE VALIDITY AND PRIORITY OF ONE LIEN, WHETHER OR NOT CLAIMED BY
A STATE, AS AGAINST OTHER LIENS, ARE QUESTIONS FOR THE REORGANIZATION
COURT.  ILLUSTRATING BUT NOT LIMITING THE RANGE OF THAT INQUIRY ARE
QUESTIONS WHETHER LOCAL LAW CREATES THE LIEN ASSERTED; WHETHER IT WAS
SUFFICIENTLY PERFECTED PRIOR TO THE PETITION FOR REORGANIZATION AS TO
BE GOOD AGAINST OTHER LIENS, CF. NEW YORK V. MACLAY, SUPRA; UNITED
STATES V. TEXAS, SUPRA; WHETHER, IF IT WERE INCHOATE AT THAT TIME, IT
COULD BE PERFECTED SUBSEQUENT TO THE PETITION, LYFORD V. STATE OF NEW
YORK, 140 F.2D 840; AND WHETHER THE LIEN, THOUGH PARAMOUNT, IS
SUBORDINATE TO ADMINISTRATION EXPENSES OR OTHER CLAIMS UNDER EITHER THE
GENERAL BANKRUPTCY RULE, CITY OF NEW YORK V. HALL, 139 F.2D 935, OR THE
EQUITY RULE,  FN9  5 COLLIER ON BANKRUPTCY (14TH ED.)  P77.21.  SEE
WARREN V. PALMER, 310 U.S. 132. 

(2)  THE EXTENT OF THE LIEN - TO WHAT PROPERTY IT APPLIES, AND
WHETHER IT IS RESTRICTED TO REALTY OR COVERS PERSONAL PROPERTY OR
REVENUES AS WELL - ARE ALSO QUESTIONS FOR THE REORGANIZATION COURT. 
SEE ECKER V. WESTERN PACIFIC R. CORP., SUPRA, PP. 489, 503. 

(3)  THE REORGANIZATION COURT MAY ALSO ADJUDICATE QUESTIONS
PERTAINING TO THE AMOUNT OF A TAX CLAIM SECURED BY A LIEN WITHOUT
CROSSING THE FORBIDDEN LINE MARKED BY ARKANSAS CORPORATION COMMISSION
V. THOMPSON, SUPRA.  THERE IS, FOR EXAMPLE, THE QUESTION WHETHER THE
AMOUNT OF THE CLAIM HAS BEEN SWOLLEN BY THE INCLUSION OF A FORBIDDEN
PENALTY AND THUS TO THAT EXTENT DOES NOT MEET THE BANKRUPTCY
REQUIREMENTS FOR PROOF AND ALLOWANCE OF CLAIMS.  SECTION 57J OF THE
BANKRUPTCY ACT PROVIDES THAT DEBTS OWING A STATE AS A "PENALTY OR
FORFEITURE"  FN10  SHALL NOT BE ALLOWED.  WHAT CLAIMS ACCRUING BEFORE
BANKRUPTCY AND SOUGHT TO BE PROVED BY A STATE ARE "PENALTIES," NEW YORK
V. JERSAWIT, 263 U.S. 493, AND WHAT ARE NOT, MEILINK V. UNEMPLOYMENT
RESERVES COMMISSION, 314 U.S. 564; THE APPLICABILITY OF SEC. 57J TO
REORGANIZATIONS UNDER SEC. 77; FN11  THE LIABILITY OF THE ESTATE FOR
PENALTIES INCURRED BY THE TRUSTEE IN THE OPERATION OF THE BUSINESS,
BOTELER V. INGELS, 308 U.S. 57; WHAT INTEREST, IF ANY, ACCRUES AFTER
THE PETITION FOR REORGANIZATION HAS BEEN FILED, VANSTON COMMITTEE V.
GREEN, 329 U.S. 156, ARE ALL QUESTIONS FOR THE REORGANIZATION COURT. 

(4)  WE NOTED IN CASE V. LOS ANGELES LUMBER PRODUCTS CO., 308 U.S.
106, 130, THAT ONE USEFUL AND FITTING FUNCTION OF A REORGANIZATION
COURT WAS THE COMPROMISE OR SETTLEMENT OF CLAIMS, SO THAT INTERMINABLE
LITIGATION MIGHT BE ENDED AND THE INTERESTS OF EXPEDITION IN
PROMULGATING A PLAN OF REORGANIZATION SERVED.  THAT POWER, EXPRESSLY
INCLUDED IN THE BANKRUPTCY ACT  FN12  AND GOVERNED BY OUR GENERAL ORDER
NO. 33,  FN13  IS PART OF THE BROAD AUTHORITY GRANTED THE
REORGANIZATION COURT BY SEC. 77.  FN14  THROUGH THE APPROPRIATE
EXERCISE OF THAT POWER, THE COURT MAY AUTHORIZE THE TRUSTEE TO
COMPROMISE CLAIMS, SECURED OR UNSECURED, AND MAY APPROVE EQUITABLE
ADJUSTMENTS OF THEM, AND SO REDUCE OR OTHERWISE AFFECT THE
PARTICIPATION THAT THE CLAIMANT, WHETHER A STATE OR ANOTHER, MAY HAVE
IN THE RES WHICH IS IN CUSTODIA LEGIS. 

IT IS URGED IN THIS CASE THAT THE SETTLEMENT AND COMPROMISE OF NEW
JERSEY'S TAX CLAIM WHICH THE REORGANIZATION COURT AUTHORIZED THE
TRUSTEE TO MAKE UNDER THE SO-CALLED SETTLEMENT ACTS OF THE NEW JERSEY
LEGISLATURE OF 1941 AND 1942 WAS AN APPROPRIATE EXERCISE OF THAT POWER;
THAT THE COMPROMISE WAS VALID AND BINDING UNDER NEW JERSEY LAW; AND
THAT EVEN IF THE COMPROMISE WAS NOT VALID, PAYMENTS MADE BY THE TRUSTEE
AND THE CONDUCT OF THE PARTIES HAVE ALTERED THE CLAIM AS RESPECTS THE
LIEN, THE PRINCIPAL AMOUNT OF THE CLAIM, AND THE INTEREST OR PENALTY
PORTION OF IT.  NEW JERSEY VIGOROUSLY CONTESTS ALL AND EACH OF THESE
CONTENTIONS. 

A PHASE OF THIS CONTROVERSY WAS BEFORE THE CIRCUIT COURT OF APPEALS
IN IN RE CENTRAL R. CO. OF NEW JERSEY, SUPRA.  THAT COURT HAD BEFORE IT
ON APPEAL THE ORDER OF THE REORGANIZATION COURT (ENTERED PRIOR TO THE
DECISION IN WILENTZ V. HENDRICKSON, SUPRA, HOLDING THE ACTS OF 1941 AND
1942 UNCONSTITUTIONAL) WHICH, ON THE BASIS OF THE COMPROMISE, ALLOWED
NEW JERSEY'S CLAIM ONLY IN A REDUCED AMOUNT.  THE CIRCUIT COURT OF
APPEALS HELD (1) THAT IT WOULD HAVE BEEN MORE APPROPRIATE FOR THE
REORGANIZATION COURT TO HAVE STAYED ITS HAND PENDING DETERMINATION OF
THE STATE LITIGATION AND (2) THAT, IN ANY EVENT, IT SHOULD NOT HAVE
PASSED ON THE CONSTITUTIONALITY OF THE 1941 AND 1942 ACTS WITHOUT
GIVING NEW JERSEY AN OPPORTUNITY FOR A HEARING AND ARGUMENT ON THE
ISSUE.  THIS CONTROVERSY IS NOW IN A DIFFERENT POSTURE.  NEW QUESTIONS
OF LOCAL LAW EMERGE - WHETHER WILENTZ V. HENDRICKSON, SUPRA, CONTROLS
THIS CASE; WHETHER A VALID SETTLEMENT CAN BE MADE UNDER AN
UNCONSTITUTIONAL ACT AND, IF SO, WHETHER THIS ALLEGED COMPROMISE WAS
VALID AND EFFECTIVE; WHETHER, IF THE SETTLEMENT WAS NOT BINDING, THE
AMOUNT OF THE CLAIM OR THE EXTENT OF THE LIEN HAS BEEN ALTERED BY THE
PAYMENTS MADE DURING REORGANIZATION OR BY THE CONDUCT OF THE PARTIES. 

THESE POINTS HAVE BEEN BRIEFED AND ARGUED HERE.  THE DIFFICULTY IS
THAT NEITHER THE REORGANIZATION COURT NOR THE CIRCUIT COURT OF APPEALS
PASSED ON THEM.  THE REORGANIZATION COURT PASSED SOLELY ON A QUESTION
OF JURISDICTION - WHETHER IT HAD THE POWER TO MAKE ADJUDICATIONS
CONCERNING THE AMOUNT OF NEW JERSEY'S CLAIM WHICH SHOULD BE ALLOWED AND
THE VALIDITY AND EXTENT OF HER LIEN, OR WHETHER NEW JERSEY'S SOVEREIGN
IMMUNITY STOOD IN THE WAY OF SUCH DETERMINATIONS.  AND THE CIRCUIT
COURT OF APPEALS DID NOT PASS ON THESE QUESTIONS BECAUSE IT, TOO, WAS
CONCERNED SOLELY WITH THE QUESTION OF JURISDICTION. 

THESE ISSUES BRISTLE WITH QUESTIONS OF NEW JERSEY LAW ON WHICH WE
SHOULD NOT PASS, EVEN IF WE WERE TO ASSUME THEY ARE PROPERLY HERE,
WITHOUT THE BENEFIT OF THE VIEWS OF JUDGES WHO SIT THERE AND HAVE A
GREATER FAMILIARITY WITH LOCAL LAW AND LOCAL PRACTICES THAN WE.  SEE
HUDDLESTON V. DWYER, 322 U.S. 232, 237; BRILLHART V. EXCESS INSURANCE
CO., 316 U.S. 491, 497; HAMMOND V. SCHAPPI BUS LINE, 275 U.S. 164, 169;
WILSON CYPRESS CO. V. DEL POZO, 236 U.S. 635, 656-657.  AND FOR A
REVIEW OF THE EARLIER CASES, SEE DISSENTING OPINION OF MR. JUSTICE
BRANDEIS IN RAILROAD COMMISSION V. LOS ANGELES R. CO., 280 U.S. 145,
164-165.  MOREOVER, WE ARE NOW ADVISED THAT THERE IS PRESENTLY PENDING
BEFORE THE CIRCUIT COURT OF APPEALS AN APPEAL BY THE ATTORNEY GENERAL
OF NEW JERSEY FROM AN ORDER OF THE REORGANIZATION COURT DENYING LEAVE
TO JOIN THE TRUSTEE AS PARTY DEFENDANT IN A SUIT IN THE NEW JERSEY
COURTS TO DETERMINE WHETHER THERE WAS A VALID SETTLEMENT OF THE TAX
CLAIMS AND TO STAY FURTHER DETERMINATION OF THAT CONTROVERSY IN THE
FEDERAL COURT UNTIL THE STATE COURTS HAVE PASSED ON THE QUESTION.  FN15
IF THE CIRCUIT COURT OF APPEALS ORDERS THE APPLICATION GRANTED, CF.
THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478, 483; EX PARTE
BALDWIN, SUPRA, P. 619, THE STATE LAW PHASES OF THE CONTROVERSY WILL BE
AUTHORITATIVELY SETTLED.  IF THE OTHER COURSE IS FOLLOWED, THE ISSUES
CAN BE RESOLVED BY THE REORGANIZATION COURT ON A RECORD MORE ADEQUATE
THAN THE PRESENT ONE FOR PURPOSES OF REVIEW.  WHATEVER PROCEDURE IS
FOLLOWED, IT IS MORE FITTING THAT THOSE MORE VERSED THAN WE IN THE
INTRICACIES AND NICETIES OF NEW JERSEY LAW FIRST PASS ON THESE
QUESTIONS. 

WE INTIMATE NO OPINION ON THE MERITS OF THE SETTLEMENT CONTROVERSY. 
NOR DO WE INTIMATE ANY VIEW ON THE AMOUNT OF THE TAX CLAIM WHICH SHOULD
BE ALLOWED OR ON THE VALIDITY, CHARACTER, PRIORITY, OR EXTENT OF THE
LIEN ASSERTED BY NEW JERSEY, OR ON THE MANNER IN WHICH IT SHOULD BE
SATISFIED IN A PLAN FOR REORGANIZATION.  WE ONLY HOLD THAT THE
REORGANIZATION COURT COULD PROPERLY ENTERTAIN ALL OBJECTIONS TO THE
CLAIM EXCEPT THOSE INVOLVING THE VALUATIONS UNDERLYING THE ASSESSMENTS
AND THE VALIDITY OF THOSE ASSESSMENTS. 

ON THE PRESENT RECORD WE DO NOT KNOW ALL THE ISSUES THAT WERE
INVOLVED IN THE PROLONGED LITIGATION CONCERNING THE TAXES FOR THE YEARS
IN QUESTION.  HENCE, WHAT WE HAVE SAID IS SUBJECT TO THE LIMITATION
THAT RES JUDICATA MAY HAVE MADE BINDING ON THE REORGANIZATION COURT
VARIOUS QUESTIONS OF LOCAL LAW, INCLUDING THE AMOUNT AND VALIDITY OF
THE TAXES UNDER NEW JERSEY LAW AND THE CHARACTER AND EXTENT OF THE LIEN
WHICH THAT LAW AFFORDS THEM. 

WE AFFIRM IN PART AND REVERSE IN PART THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS AND REMAND THE CAUSE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  SO ORDERED. 

FN1  THE HISTORY OF THE LITIGATION IS REVIEWED IN THE OPINION OF THE
CIRCUIT COURT OF APPEALS IN THIS CASE.  152 F.2D PP. 408-411. 

FN2  DELINQUENCIES OF SUBSIDIARY COMPANIES OF THE DEBTOR WERE ALSO
INCLUDED. 

THE 1942 ACT INCREASED THE 1941 FRANCHISE TAX OF THE DEBTOR.  THE
WAIVER AUTHORIZED BY THE REORGANIZATION COURT INCLUDED A WAIVER OF THE
RIGHT TO CONTEST THE LEGALITY OF THAT ADDITIONAL ASSESSMENT. 

FN3  SEE IN RE CENTRAL R. CO. OF NEW JERSEY, 136 F.2D 633, WHICH
CONTAINS A REVIEW OF THE FACTS OF THIS EPISODE. 

FN4  LIKE CLAIMS WERE ALSO FILED AGAINST SUBSIDIARIES OF THE DEBTOR. 

FN5  SEE H. REP. NO. 1409, 75TH CONG., 1ST SESS., P. 13; S. REP. NO.
1916, 75TH CONG., 3D SESS., PP. 5, 16. 

FN6  SEE MEYER V. FLEMING, 327 U.S. 161, 169, FOOTNORE 18:  "SEC. 
77(C)(7) PROVIDES THAT THE JUDGE 'SHALL PROMPTLY DETERMINE AND FIX A
REASONABLE TIME WITHIN WHICH THE CLAIMS OF CREDITORS MAY BE FILED OR
EVIDENCED AND AFTER WHICH NO CLAIM NOT SO FILED OR EVIDENCED MAY
PARTICIPATE EXCEPT ON ORDER FOR CAUSE SHOWN  ...'  THIS IS THE EQUITY
RULE (5 COLLIER ON BANKRUPTCY (1944) P. 537) WHICH PERMITS THE FILING
OF CLAIMS OUT OF TIME PROVIDED THE CLAIM IS EQUITABLE, THE CLAIMANT IS
NOT CHARGEABLE WITH LACHES, AND THE ASSETS HAVE NOT BEEN DISTRIBUTED
(SEE CONKLIN V. UNITED STATES SHIPBUILDING CO., 136 F. 1006, 1009-1010;
PENNSYLVANIA STEEL CO. V. NEW YORK CITY R. CO., 198 F. 721, 740-742);
AND PROVIDED FURTHER THAT THE LATE FILING DOES NOT UNDULY DELAY THE
PROCEEDINGS.  GUARANTY TRUST CO. V. HENWOOD, 86 F.2D 347, 353." 

FN7  SECTION 64A OF THE BANKRUPTCY ACT DETERMINES THE PRIORITY TO
WHICH TAXES OWING A STATE ARE ENTITLED AND GRANTS THE BANKRUPTCY COURT
POWER TO DETERMINE QUESTIONS CONCERNING "THE AMOUNT OR LEGALITY OF ANY
TAXES."  IN ARKANSAS CORPORATION COMMISSION V. THOMPSON, SUPRA, WE
RESERVED DECISION ON WHETHER SEC. 64A WAS APPLICABLE IN REORGANIZATIONS
UNDER SEC. 77.  WE DO NOT REACH THAT QUESTION HERE.  FOR SEC. 77 ALONE
IS ADEQUATE TO SUSTAIN THE ASSERTED JURISDICTION OF THE REORGANIZATION
COURT OVER ALL THE PROPERTY OF THE DEBTOR.  SEE LYFORD V. CITY OF NEW
YORK, 137 F.2D 782, 785-786. 

FN8  AS STATED IN ISAACS V. HOBBS TIE & TIMBER CO., SUPRA, P. 738,
"WHILE VALID LIENS EXISTING AT THE TIME OF THE COMMENCEMENT OF A
BANKRUPTCY PROCEEDING ARE PRESERVED, IT IS SOLELY WITHIN THE POWER OF A
COURT OF BANKRUPTCY TO ASCERTAIN THEIR VALIDITY AND AMOUNT AND TO
DECREE THE METHOD OF THEIR LIQUIDATION." 

FN9  SECTION 77(A) PROVIDES THAT IF THE PETITION IS APPROVED THE
REORGANIZATION COURT "DURING THE PENDENCY OF THE PROCEEDINGS UNDER THIS
IN ADDITION TO THE POWERS CONFERRED BY THIS SECTION ALL THE POWERS, NOT
INCONSISTENT WITH THIS SECTION, WHICH A FEDERAL COURT WOULD HAVE HAD IF
IT HAD APPOINTED A RECEIVER IN EQUITY OF THE PROPERTY OF THE DEBTOR FOR
ANY PURPOSE." 

FN10  SECTION 57J READS IN FULL: 

"DEBTS OWING TO THE UNITED STATES OR ANY STATE OR SUBDIVISION THEREOF
AS A PENALTY OR FORFEITURE SHALL NOT BE ALLOWED, EXCEPT FOR THE AMOUNT
OF THE PECUNIARY LOSS SUSTAINED BY THE ACT, TRANSACTION, OR PROCEEDING
OUT OF WHICH THE PENALTY OR FORFEITURE AROSE, WITH REASONABLE AND
ACTUAL COSTS OCCASIONED THEREBY AND SUCH INTEREST AS MAY HAVE ACCRUED
THEREON ACCORDING TO LAW." 

FN11  SECTION 77(L) PROVIDES: 

"IN PROCEEDINGS UNDER THIS SECTION AND CONSISTENT WITH THE PROVISIONS
THEREOF, THE JURISDICTION AND POWERS OF THE COURT, THE DUTIES OF THE
DEBTOR AND THE RIGHTS AND LIABILITIES OF CREDITORS, AND OF ALL PERSONS
WITH RESPECT TO THE DEBTOR AND ITS PROPERTY, SHALL BE THE SAME AS IF A
VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN FILED AND A DECREE OF
ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE DEBTOR'S PETITION WAS
FILED." 

FN12  SECTION 27 PROVIDES: 

"THE RECEIVER OR TRUSTEE MAY, WITH THE APPROVAL OF THE COURT,
COMPROMISE ANY CONTROVERSY ARISING IN THE ADMINISTRATION OF THE ESTATE
UPON SUCH TERMS AS HE MAY DEEM FOR THE BEST INTEREST OF THE ESTATE." 
52 STAT. 855. 

FN13  GENERAL ORDER NO. 33 PROVIDES: 

"WHENEVER A RECEIVER, TRUSTEE OR DEBTOR IN POSSESSION SHALL MAKE
APPLICATION TO THE COURT FOR AUTHORITY TO SUBMIT TO ARBITRATION ANY
CONTROVERSY ARISING IN THE SETTLEMENT OF AN ESTATE, OR FOR AUTHORITY TO
COMPROMISE ANY SUCH CONTROVERSY, THE APPLICATION SHALL CLEARLY AND
DISTINCTLY SET FORTH THE SUBJECT MATTER OF THE CONTROVERSY, AND THE
REASONS WHY IT IS PROPER AND FOR THE BEST INTEREST OF THE ESTATE THAT
THE CONTROVERSY SHOULD BE SETTLED BY ARBITRATION OR COMPROMISE."  305
U.S. 696. 

FN14 SEE SEC. 77(L), NOTE 11, SUPRA, AND SEC. 77(A), NOTE 9, SUPRA. 

FN15  NEW JERSEY ET AL. V. CENTRAL RAILROAD CO. OF NEW JERSEY, NO.
8808.  WE ARE ADVISED THAT BY STIPULATION OF THE PARTIES THE CASE IS
BEING HELD IN THE CIRCUIT COURT OF APPEALS UNTIL THE JURISDICTIONAL
QUESTION INVOLVED IN THE INSTANT CASE HAS BEEN DECIDED. 
..END :











UNITED STATES V. HOTEL CO., 329 U.S. 585 


NO. 106.  ARGUED DECEMBER 20, 1946.  - DECIDED JANUARY 20, 1947.  - 106
CT. CL. 60, 64 F.SUPP.  565, REVERSED IN PART. 


THE ACT OF MARCH 30, 1920 AUTHORIZED THE SECRETARY OF WAR TO LEASE
LAND ON A MILITARY RESERVATION FOR THE CONSTRUCTION AND OPERATION OF A
HOTEL.  THE ACT PROVIDED THAT THE LEASE SHOULD CONTAIN A PROVISION FOR
"JUST COMPENSATION" TO THE LESSEE FOR THE CONSTRUCTION OF THE HOTEL,
ETC., UPON TERMINATION OF THE LEASE.  A LEASE WAS ENTERED INTO PURSUANT
TO THE ACT; THE HOTEL WAS CONSTRUCTED AND OPERATED FOR A TIME.  LATER
THE SECRETARY CANCELLED THE LEASE.  HELD: 

1.  THE COURT OF CLAIMS IS PRECLUDED BY SEC. 177(A) OF THE JUDICIAL
CODE FROM INCLUDING INTEREST IN ITS AWARD OF "JUST COMPENSATION" UPON
THE CLAIM OF THE LESSEE, SINCE THE CASE WAS NOT ONE OF EMINENT DOMAIN
AND NEITHER THE ACT NOR THE LEASE CONTAINED AN EXPRESS PROVISION FOR
THE PAYMENT OF INTEREST.  P. 588. 

2.  THE FACT THAT "JUST COMPENSATION" INCLUDES INTEREST IN THE
EMINENT DOMAIN SETTING DOES NOT NECESSARILY MEAN THAT THE TERM MUST BE
GIVEN THE SAME SCOPE IN OTHER SITUATIONS.  P. 589. 

3.  REFERENCES IN THE ACT AND IN THE LEASE TO "JUST COMPENSATION,"
WITHOUT MORE, ARE NOT TO BE CONSTRUED AS AN EXPRESS PROVISION FOR THE
PAYMENT OF INTEREST.  P. 589. 

UNITED STATES V. THAYER-WEST POINT HOTEL CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

RESPONDENT BROUGHT SUIT IN THE COURT OF CLAIMS TO RECOVER UPON A
CLAIM ARISING OUT OF THE TERMINATION OF A LEASE EXECUTED PURSUANT TO
THE ACT OF MARCH 30, 1920.  THE COURT OF CLAIMS ALLOWED RECOVERY AND
INCLUDED INTEREST IN ITS AWARD.  106 CT. CL. 60, 64 F.SUPP.  565.  THIS
COURT GRANTED CERTIORARI, 329 U.S. 698.  JUDGMENT REVERSED SO FAR AS IT
INCLUDED INTEREST, P. 591. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE DECISION HERE TURNS UPON THE POWER OF THE COURT OF CLAIMS, IN
LIGHT OF SEC. 177(A) OF THE JUDICIAL CODE,  FN1  TO INCLUDE INTEREST IN
ITS AWARD OF "JUST COMPENSATION" TO A LESSEE FOR THE CONSTRUCTION OF A
HOTEL AND OTHER BUILDINGS PURSUANT TO THE PROVISIONS OF THE ACT OF
MARCH 30, 1920.  FN2 

THE ACT OF MARCH 30, 1920, AUTHORIZES THE SECRETARY OF WAR TO LEASE
LAND ON THE UNITED STATES MILITARY RESERVATION AT WEST POINT, N.Y., TO
ANY PERSON FOR A TERM NOT EXCEEDING 50 YEARS UPON WHICH TO ERECT A
HOTEL AND OTHER NECESSARY BUILDINGS IN CONNECTION THEREWITH.  THE LEASE
IS TO CONTAIN SUCH CONDITIONS, TERMS, RESERVATIONS AND COVENANTS AS MAY
BE AGREED UPON AND IS TO PROVIDE "FOR JUST COMPENSATION TO THE LESSEES
FOR THE CONSTRUCTION OF SAID HOTEL, APPURTENANCES, AND EQUIPMENTS, TO
BE PAID TO SAID LESSEES AT THE TERMINATION OF SAID LEASE." 

ON OCTOBER 17, 1924, THE SECRETARY OF WAR DULY MADE A LEASE UNDER
THIS ACT TO ONE WILLIAMS FOR A PERIOD OF 50 YEARS.  THE LEASE PROVIDED,
AMONG OTHER THINGS, THAT IT MIGHT BE CANCELED AT ANY TIME BY THE
SECRETARY IF THE LESSEE SHOULD FAIL TO OBSERVE ALL THE COVENANTS AND
CONDITIONS IN THE LEASE.  ONE OF THE COVENANTS WAS THAT THE LESSEE WAS
TO "KEEP THE SAID HOTEL OPEN FOR BUSINESS EVERY DAY DURING THE
CONTINUANCE OF THIS LEASE, EXCEPT AT SUCH TIMES AS PERMISSION TO CLOSE
MAY BE GIVEN IN WRITING BY THE SUPERINTENDENT, U.S.M.A."  UPON A
CANCELLATION OF THE LEASE, "JUST COMPENSATION" WAS TO BE PAID TO THE
LESSEE FOR THE CONSTRUCTION OF THE HOTEL, APPURTENANCES AND EQUIPMENT,
AND TITLE THERETO WAS TO PASS AT ONCE TO THE UNITED STATES.  SIMILAR
PROVISIONS WERE MADE IN CONNECTION WITH THE TERMINATION OF THE LEASE ON
THE EXPIRATION OF THE 50-YEAR TERM.  THE LEASE ALSO SET FORTH NUMEROUS
RESTRICTIONS AND REQUIREMENTS AS TO THE OPERATION OF THE HOTEL - SUCH
RESTRICTIONS AND REQUIREMENTS BEING PRIMARILY FOR THE BENEFIT OF THE
MILITARY ACADEMY. 

THE LEASE WAS ASSIGNED TO A CORPORATION AND A HOTEL AND OTHER
BUILDINGS WERE SUBSEQUENTLY ERECTED.  THROUGH A SERIES OF EVENTS WHICH
NEED NOT BE DETAILED HERE, THE RESPONDENT TOOK OVER THE LEASEHOLD AND
THE HOTEL PROPERTIES IN 1930 WITH THE APPROVAL OF THE SUPERINTENDENT OF
THE MILITARY ACADEMY.  RESPONDENT BEGAN OPERATING THE HOTEL ON JANUARY
1, 1931, AND CONTINUED UNDER THE TERMS OF THE LEASE UNTIL MARCH 10,
1943. 

ON JANUARY 5, 1943, RESPONDENT WROTE TO THE SECRETARY OF WAR THAT
CONDITIONS THEN EXISTING MADE CONTINUED OPERATION OF THE HOTEL
IMPOSSIBLE AND THAT TO AVOID A CURTAILMENT OF OPERATIONS OR A CLOSING
DOWN OF THE HOTEL "THE PROPERTIES SHOULD BE OWNED AND OPERATED BY THE
GOVERNMENT."  IT WAS ACCORDINGLY SUGGESTED THAT THE SECRETARY DECLARE
THE LEASE FORFEITED UPON THE CLOSING OF THE HOTEL BY RESPONDENT, A
DEFAULT CONTEMPLATED BY THE LEASE.  THE SECRETARY AGREED TO THIS
PROPOSAL.  THE RESPONDENT THEN GAVE NOTICE OF ITS INTENTION TO CLOSE
THE HOTEL ON THE MORNING OF MARCH 10, 1943.  THE AGENTS OF THE
SECRETARY IMMEDIATELY TOOK OVER THE POSSESSION, MANAGEMENT AND
OPERATION OF THE HOTEL ON MARCH 10 AND SHORTLY THEREAFTER THE SECRETARY
DECLARED THE LEASE ANNULLED. 

THE PARTIES WERE UNABLE TO AGREE ON THE AMOUNT OF "JUST COMPENSATION"
DUE UNDER THE LEASE.  RESPONDENT THEN BROUGHT THIS SUIT IN THE COURT OF
CLAIMS, PRAYING FOR A JUDGMENT IN THE SUM OF $1,932,000.  THAT COURT
FOUND THAT THE "TOTAL OF JUST COMPENSATION TO THE PLAINTIFF FOR
CONSTRUCTION OF THE HOTEL, ITS APPURTENANCES, AND EQUIPMENTS, IS
THEREFORE $867,682, AS OF MARCH 10, 1943."  106 CT. CL. 60, 80, 64
F.SUPP.  565, 568.  THE COURT THEN ADDED INTEREST AT THE RATE OF 4% PER
ANNUM FROM MARCH 10, 1943, TO THE DATE OF PAYMENT AS "ADDITIONAL
ALLOWANCE TO MAKE COMPENSATION A JUST ONE AS OF THE DATE OF PAYMENT." 
THE SOLE QUESTION BEFORE US CONCERNS THE PROPRIETY OF ADDING THE 4%
INTEREST FROM MARCH 10, 1943. 

THE PERTINENT PART OF SEC. 177(A) OF THE JUDICIAL CODE PROVIDES THAT
"NO INTEREST SHALL BE ALLOWED ON ANY CLAIM UP TO THE TIME OF THE
RENDITION OF JUDGMENT BY THE COURT OF CLAIMS, UNLESS UPON A CONTRACT
EXPRESSLY STIPULATING FOR THE PAYMENT OF INTEREST,  ..."  SECTION
177(A) THUS EMBODIES BODIES THE TRADITIONAL RULE THAT INTEREST CANNOT
BE RECOVERED AGAINST THE UNITED STATES UPON UNPAID ACCOUNTS OR CLAIMS
IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY IN A RELEVANT
STATUTE OR CONTRACT.  TILLSON V. UNITED STATES, 100 U.S. 43, 47; UNITED
STATES V. NORTH AMERICAN CO., 253 U.S. 330, 336; UNITED STATES V.
GOLTRA, 312 U.S. 203, 207.  THIS RULE IS INAPPLICABLE, HOWEVER, WHERE
THE UNITED STATES TAKES PROPERTY UNDER ITS POWER OF EMINENT DOMAIN; IN
SUCH CASES IT HAS CONSISTENTLY BEEN HELD THAT THE FIFTH AMENDMENT'S
REFERENCE TO "JUST COMPENSATION" ENTITLES THE PROPERTY OWNER TO RECEIVE
INTEREST FROM THE DATE OF THE TAKING TO THE DATE OF PAYMENT AS A PART
OF HIS JUST COMPENSATION.  SEABOARD AIR LINE RY. V. UNITED STATES, 261
U.S. 299, 306; BROOKS-SCANLON CORP. V. UNITED STATES, 265 U.S. 106,
123; PHELPS V. UNITED STATES, 274 U.S. 341, 344. 

SINCE IT IS CLEAR IN THE INSTANT CASE THAT THE UNITED STATES DID NOT
EXERCISE ITS POWER OF EMINENT DOMAIN AND THAT THERE WAS NO TAKING OF
THE HOTEL PROPERTIES IN THE LEGAL SENSE, WE CAN PUT TO ONE SIDE THE
EMINENT DOMAIN SITUATION.  THERE IS NOTHING MORE HERE THAN AN ORDINARY
CONTRACTUAL RELATIONSHIP BETWEEN THE UNITED STATES AND THE RESPONDENT. 
THAT RELATIONSHIP WAS VOLUNTARILY ENTERED INTO BY RESPONDENT'S
PREDECESSOR AND WAS SEVERED AT RESPONDENT'S SUGGESTION.  THE
GOVERNMENT'S LIABILITY TO PAY FOR THE CONSTRUCTION OF THE HOTEL
PROPERTIES WAS FIXED BY THE ACT OF MARCH 30, 1920, AND BY THE LEASE,
NOT BY THE CONSTITUTION.  THE SOLE ISSUE THUS BECOMES WHETHER THERE IS
ANY EXPRESS PROVISION IN THE ACT OR IN THE LEASE PERMITTING THE
RECOVERY OF INTEREST UNDER THE CIRCUMSTANCES.  ONLY IF THERE IS SUCH A
PROVISION CAN RESPONDENT AVOID THE TRADITIONAL RULE SET FORTH IN SEC.
177(A). 

RESPONDENT'S CLAIM IN THIS RESPECT RESTS UPON THE REFERENCES IN THE
ACT AND IN THE LEASE TO THE PAYMENT OF "JUST COMPENSATION" FOR THE
CONSTRUCTION OF THE HOTEL, APPURTENANCES AND EQUIPMENT.  "JUST
COMPENSATION," IT IS SAID, IS TO BE GIVEN THE SAME MEANING HERE AS IN
THE CASE OF A TAKING UNDER THE POWER OF EMINENT DOMAIN, THEREBY
ENTITLING RESPONDENT TO THE FULL VALUE OF THE PROPERTIES DOWN TO THE
DATE OF PAYMENT.  FROM THIS VIEWPOINT, THE COURT OF CLAIMS COULD USE
INTEREST AT THE RATE OF 4% AS THE MEASURE OF THE VALUE OF THE USE OF
THE HOTEL PROPERTIES FROM THE TIME WHEN THE GOVERNMENT TOOK POSSESSION
ON MARCH 10, 1943, TO THE TIME OF PAYMENT AND INCLUDE SUCH INTEREST AS
A COMPONENT PART OF JUST COMPENSATION.  THE CONCLUSION IS REACHED THAT
THE TERM "JUST COMPENSATION," AS USED IN THE ACT AND IN THE LEASE,
CONSTITUTES AN EXPRESS PROVISION FOR INTEREST SO THAT THE BAR OF SEC.
177(A) IS REMOVED.  WE CANNOT AGREE. 

THE FACT THAT "JUST COMPENSATION" INCLUDES INTEREST IN THE EMINENT
DOMAIN SETTING DOES NOT NECESSARILY MEAN THAT THE TERM MUST BE GIVEN
THE SAME SCOPE IN OTHER SITUATIONS.  UNITED STATES V. GOLTRA, SUPRA.
IT MAY OR IT MAY NOT IMPLY AN OBLIGATION TO PAY INTEREST.  FOR EXAMPLE,
INTEREST CONCEIVABLY MAY NOT BE CONTEMPLATED WHERE THE TERM REFERS TO
COMPENSATORY DAMAGES FOR A TORT OR A BREACH OF CONTRACT, OR WHERE IT
HAS REFERENCE TO THE PRICE TO BE PAID FOR THE EXCHANGE OR SALE OF
PROPERTY AT A FUTURE DATE.  HENCE, IN THE ABSENCE OF CONSTITUTIONAL
CONNOTATIONS, "JUST COMPENSATION" IS NOT A TERM OF ART SO FAR AS
INTEREST IS CONCERNED.  THE INCLUSION OR EXCLUSION OF INTEREST DEPENDS
UPON OTHER CONTRACTUAL PROVISIONS, THE INTENTION OF THE PARTIES AND THE
CIRCUMSTANCES SURROUNDING THE USE OF THE TERM. 

BUT IN ORDER TO OVERRIDE THE HISTORICAL RULE CODIFIED IN SEC. 177(A),
SOMETHING MORE IS NECESSARY THAN AN EQUIVOCAL USE OF THE TERM "JUST
COMPENSATION."  IT IS NOT ENOUGH THAT THE TERM MIGHT BE CONSTRUED TO
INCLUDE THE PAYMENT OF INTEREST.  AS SEC. 177(A) ITSELF INDICATES,
THERE MUST BE A PROVISION IN THE CONTRACT "EXPRESSLY STIPULATING FOR
THE PAYMENT OF INTEREST."  THAT PROVISION MUST BE AFFIRMATIVE, CLEAR
CUT, UNAMBIGUOUS; AND AN UNEXPRESSED INTENTION BY THE PARTIES THAT THE
TERM "JUST COMPENSATION" BE CONSTRUED TO INCLUDE INTEREST IS
INSUFFICIENT.  LIKEWISE, WHERE A STATUTE IS RELIED UPON TO OVERCOME THE
FORCE OF SEC. 177(A), THE INTENTION OF CONGRESS TO PERMIT THE RECOVERY
OF INTEREST MUST BE EXPRESSLY AND SPECIFICALLY SET FORTH IN THE
STATUTE.  TILLSON V. UNITED STATES, SUPRA, 46; UNITED STATES EX REL.
ANGARICA V. BAYARD, 127 U.S. 251, 260.  MERE USE OF THE TERM "JUST
COMPENSATION," WITHOUT MORE, IS NO SUBSTITUTE FOR AN EXPRESS PROVISION
FOR INTEREST. 

HERE NEITHER THE ACT OF MARCH 30, 1920, NOR THE LEASE UNDER WHICH
RESPONDENT OPERATED CONTAINS AN EXPRESS PROVISION FOR THE PAYMENT OF
INTEREST, EITHER IN ADDITION TO OR AS A PART OF THE "JUST COMPENSATION"
TO BE PAID TO RESPONDENT.  IF THE UNITED STATES HAD DESIRED TO PROVIDE
BY STATUTE OR TO CONTRACT IN THE LEASE FOR THE PAYMENT OF INTEREST, IT
WOULD HAVE BEEN EASY TO HAVE SAID SO IN EXPRESS TERMS.  FN3  BECAUSE IT
DID NOT SAY SO, WE ARE LED IRRESISTIBLY TO THE CONCLUSION THAT IT DID
NOT INTEND TO NEGATIVE THE EFFECT OF SEC. 177(A) IN THIS INSTANCE. 
TILLSON V. UNITED STATES, SUPRA. 

WE THEREFORE REVERSE THE JUDGMENT OF THE COURT OF CLAIMS TO THE
EXTENT THAT IT INCLUDES AN ALLOWANCE FOR INTEREST. 

FN1  28 U.S.C. SEC. 284(A). 

FN2  41 STAT. 538, 548. 

FN3  CONGRESS HAS EXPRESSLY PROVIDED FOR THE PAYMENT OF INTEREST IN
OTHER INSTANCES.  SEE JUDICIAL CODE, SEC. 177(B), 28 U.S.C. SEC.
284(B); CONTRACT SETTLEMENT ACT OF 1944, 58 STAT. 649, 654, SEC. 6(F),
41 U.S.C., SUPP. V, SEC. 106(F). 
..END :
























JESIONOWSKI V. BOSTON & MAINE R. CO., 329 U.S. 452 


NO. 88.  ARGUED DECEMBER 16, 1946.  - DECIDED JANUARY 13, 1947.  - 154
F.2D 703, REVERSED. 


IN AN ACTION AGAINST A RAILROAD IN A FEDERAL DISTRICT COURT UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT TO RECOVER DAMAGES FOR THE DEATH OF A
BRAKEMAN RESULTING FROM THE DERAILMENT OF CERTAIN CARS, THE EVIDENCE
SHOWED THAT HE THREW A SWITCH AND SIGNALED THE ENGINEER TO BACK THE
CARS, WHICH WERE BEING SWITCHED FROM A MAIN LINE TO A SIDING.  THERE
WAS EVIDENCE TENDING TO SHOW THAT HE NEGLIGENTLY THREW THE SWITCH WHILE
THE LEAD CAR STRADDLED IT, WHICH MIGHT HAVE CAUSED THE DERAILMENT. 
OTHER EVIDENCE TENDED TO SHOW THAT, WHEN THE DERAILMENT OCCURRED,
SPLINTERS AND PLANKS WERE THROWN INTO THE AIR NEAR A FROG (75 FEET FROM
THE SWITCH) WHICH COULD HAVE CAUSED THE DERAILMENT.  SOME TESTIFIED
THEY WERE FOUND ON THE TRACK CLOSE TO THE SWITCH AND SOME THAT THEY
WERE CLOSE TO THE FROG.  THERE WAS EVIDENCE THAT THE FROG AND SWITCH
HAD BEEN IN GOOD CONDITION BEFORE AND AFTER THE DERAILMENT AND THAT THE
CARS HAD BEEN OPERATED AND THE TRACKS USED PREVIOUSLY WITHOUT ANY
SIMILAR MISHAP.  THE JURY WAS INSTRUCTED THAT, IF IT FOUND THAT THE
ACCIDENT DID NOT RESULT FROM NEGLIGENCE OF THE DECEASED, IT COULD INFER
THAT IT RESULTED FROM NEGLIGENCE OF THE RAILROAD.  IT FOUND FOR THE
PLAINTIFF.  HELD: 

1.  THE DOCTRINE OF RES IPSA LOQUITUR WAS APPLICABLE AND THE JUDGMENT
AGAINST THE RAILROAD IS SUSTAINED.  PP. 456-459. 

2.  IN THIS CASE, THE JURY'S RIGHT TO DRAW INFERENCES FROM EVIDENCE
AND THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT A VERDICT ARE FEDERAL
QUESTIONS.  P. 457. 

3.  THE FACTS SUPPORT THE JURY'S FINDINGS BOTH THAT THE DECEASED'S
CONDUCT DID NOT CAUSE THE ACCIDENT AND THAT THE RAILROAD'S DID.  P.
458. 

4.  UNDER RULE 75(D) OF THE RULES OF CIVIL PROCEDURE, A STATEMENT IN
THE DESIGNATION OF RECORD ON APPEAL THAT "THE DOCTRINE OF RES IPSA
LOQUITUR IS NOT APPLICABLE TO THE FACTS OF THIS CASE" WAS NOT
SUFFICIENT TO RAISE THE POINT THAT, BECAUSE THE TRIAL JUDGE DIRECTED A
VERDICT FOR THE DEFENDANT ON THE FIRST COUNT OF THE COMPLAINT (WHICH
CHARGED A DEFECT IN THE CAR, TRACK OR ROADBED), HE WAS NOT JUSTIFIED IN
SUBMITTING TO THE JURY THE QUESTION OF SUCH A DEFECT UNDER THE SECOND
COUNT CHARGING NEGLIGENCE GENERALLY.  PP. 458-459. 

JESIONOWSKI, ADMINISTRATRIX, V. BOSTON & MAINE RAILROAD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

IN AN ACTION IN A FEDERAL DISTRICT COURT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, 35 STAT. 65, 53 STAT. 1404, 45 U.S.C. SEC. 51 ET SEQ.,
PETITIONER OBTAINED A JUDGMENT FOR DAMAGES FOR THE DEATH OF HER HUSBAND
IN A RAILROAD ACCIDENT.  THE CIRCUIT COURT OF APPEALS REVERSED.  154
F.2D 703.  THIS COURT GRANTED CERTIORARI.  328 U.S. 830.  REVERSED, P.
459. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS ACTION FOR DAMAGES IN THE FEDERAL DISTRICT
COURT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, 53 STAT.
1404, 45 U.S.C. SEC. 51 ET SEQ., FOR CAUSING THE DEATH OF HER
INTESTATE.  COUNT I ALLEGED THAT "BY REASON OF A DEFECT OR
INSUFFICIENCY, DUE TO THE NEGLIGENCE OF THE DEFENDANT, IN ITS CAR,
TRACK, OR ROADBED, THE CAR UPON WHICH THE PLAINTIFF'S DECEDENT WAS
RIDING WAS DERAILED  ...," CAUSING THE DECEDENT TO BE THROWN FROM THE
CAR AND KILLED.  COUNT II, WITHOUT SPECIFYING ANY PARTICULAR ACTS OF
NEGLIGENCE, CHARGED GENERALLY THAT THE DERAILMENT AND DECEDENT'S DEATH
WERE THE "RESULT OF THE NEGLIGENCE OF THE DEFENDANT."  AFTER THE
EVIDENCE WAS IN, THE COURT, AT THE REQUEST OF THE RESPONDENT, DIRECTED
THE JURY TO RETURN A VERDICT FOR THE RESPONDENT ON THE FIRST COUNT. 
RESPONDENT'S MOTION FOR DIRECTED VERDICT ON THE SECOND COUNT, ON THE
GROUND THAT THE EVIDENCE FAILED TO JUSTIFY A FINDING OF NEGLIGENCE AND
THAT IT SHOWED THAT DECEASED WAS KILLED AS THE SOLE RESULT OF HIS OWN
NEGLIGENCE, WAS OVERRULED.  THE JURY RENDERED A VERDICT FOR PETITIONER
AND JUDGMENT WAS ENTERED ON IT.  THE CIRCUIT COURT OF APPEALS REVERSED
AND REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO RENDER JUDGMENT
FOR THE RESPONDENT.  154 F.2D 703. 

THE TRIAL COURT CHARGED THE JURY THAT THE BURDEN WAS UPON PETITIONER
TO PROVE BY A FAIR PREPONDERANCE OF THE EVIDENCE THAT THE DECEASED'S
DEATH WAS CAUSED BY RESPONDENT'S NEGLIGENCE.  IT INVOKED THE TRIAL RULE
UNDER WHICH NEGLIGENCE MAY BE INFERRED FROM UNUSUAL HAPPENINGS GROWING
OUT OF CONDITIONS UNDER A DEFENDANT'S CONTROL.  REFERRING TO THIS RULE
UNDER THE NAME OF RES IPSA LOQUITUR, THE COURT CHARGED:  "OF COURSE IF
THE DECEASED'S NEGLIGENCE WAS THE SOLE CAUSE OF THE ACCIDENT THE
PLAINTIFF HERE CANNOT RECOVER.  AND SINCE THERE CAN BE NO APPLICATION
OF THE DOCTRINE OF RES IPSA LOQUITUR IF OTHER CAUSES THAN THE
NEGLIGENCE OF THE DEFENDANT, ITS AGENTS OR SERVANTS, MIGHT HAVE
PRODUCED THE ACCIDENT, THE PLAINTIFF IS BOUND, SHE HAS THE BURDEN, TO
EXCLUDE THE OPERATION OF SUCH CAUSES BY A FAIR PREPONDERANCE OF THE
EVIDENCE BEFORE THE RULE CAN BE APPLIED.  THIS IS SO BECAUSE IF THERE
ARE OTHER CAUSES THAN THE NEGLIGENCE OF THE DEFENDANT THAT MIGHT HAVE
CAUSED THE ACCIDENT, THE DEFENDANT CANNOT BE SAID TO BE IN EXCLUSIVE
CONTROL - ONE OF THE PREREQUISITES TO THE APPLICATION OF THE RULE HERE
INVOKED."  THE CIRCUIT COURT OF APPEALS REVERSED BECAUSE IT THOUGHT
THAT THE JURY SHOULD NOT BE PERMITTED TO DRAW AN INFERENCE OF
DEFENDANT'S NEGLIGENCE FROM AN EXTRAORDINARY ACCIDENT GROWING OUT OF A
GENERAL SET OF CIRCUMSTANCES WHICH INCLUDED ACTIVITIES OF THE INJURED
PERSON, EVEN THOUGH A JURY, UNDER PROPER INSTRUCTIONS, COULD FIND FROM
THE EVIDENCE THAT THE INJURED PERSON'S ACTIVITIES DID NOT CAUSE THE
INJURY.  THE CIRCUIT COURT'S LIMITATION OF THE JURY'S PROVINCE BY THIS
INTERPRETATION OF A DOCTRINE OF RES IPSA LOQUITUR RAISED A QUESTION OF
IMPORTANCE IN THE TRIAL OF CASES ARISING UNDER FEDERAL LAW.  WE GRANTED
CERTIORARI TO CONSIDER THIS QUESTION.  328 U.S. 830. 

THE TESTIMONY, SO FAR AS RELEVANT TO POINT THE ISSUES, MAY BE BRIEFLY
SUMMARIZED.  FOUR RAILROAD CARS WERE BEING PUSHED BACKWARD AND EASTWARD
BY AN ENGINE IN ORDER TO PUT THEM ON A SIDING NORTH OF THE MAIN TRACK. 
IT WAS THE DUTY OF DECEASED, A BRAKEMAN, TO THROW THE SWITCH BEFORE THE
FIRST CAR REACHED IT IN ORDER THAT THE FOUR CARS WOULD TAKE THE
SIDING.  THERE WAS EVIDENCE THAT HE THREW THE SWITCH AND GAVE A SIGNAL
TO THE ENGINEER TO BACK THE CARS.  RESPONDENT'S EVIDENCE WAS SUFFICIENT
TO AUTHORIZE, BUT NOT TO COMPEL, THE JURY TO FIND THAT THE DECEASED
NEGLIGENTLY THREW THE SWITCH WHILE THE LEAD CAR IN THE BACKWARD
MOVEMENT STRADDLED THE SWITCH WITH ONE SET OF THE CAR WHEELS ON ONE
SIDE OF THE SWITCH AND ONE ON THE OTHER.  IF TRUE, THIS COULD MEAN THAT
THE WHEELS EAST OF THE SWITCH WOULD MOVE DOWN THE MAIN LINE AND THE
OTHERS WOULD ENTER THE SIDING WHEN THE SWITCH WAS THROWN AND THE
BACKWARD MOVEMENT TOOK PLACE, THUS PROBABLY CAUSING DERAILMENT.  IF THE
JURY HAD BELIEVED RESPONDENT'S EVIDENCE THAT THIS LAST CAR WAS ASTRIDE
THE SWITCH WHEN IT WAS THROWN, IT WOULD HAVE BEEN AUTHORIZED, UNDER THE
COURT'S CHARGE, TO FIND FOR THE RESPONDENT.  BUT ABOUT 75 FEET EAST OF
THIS SWITCH, AT A POINT WHERE THE SOUTH RAIL OF THE SIDING TRACK
INTERSECTED THE NORTH RAIL OF THE MAIN TRACK, THERE WAS A FROG.  THERE
WAS TESTIMONY THAT THIS FROG OPERATED WITH A SPRING MECHANISM, AND THAT
IF THE SPRING FAILED TO WORK WHEN THE WHEELS PASSED OVER IT, THE CARS
MIGHT BE DERAILED.  SOME OTHER EVIDENCE TENDED TO SHOW THAT, AT THE
TIME THE DERAILMENT OCCURRED, SPLINTERS AND PLANKS WERE THROWN INTO THE
AIR NEAR THE FROG.  OTHER EVIDENCE TENDED TO SHOW THAT PLANKS AND
SPLINTERS WERE FOUND ON THE TRACK.  SOME TESTIMONY SHOWED THAT THEY
WERE CLOSE TO THE SWITCH, AND SOME THAT THEY WERE CLOSE TO THE FROG. 
THERE WAS EVIDENCE THAT THE FROG AND SWITCH HAD BEEN IN GOOD CONDITION
BEFORE THE DERAILMENT AND AFTER THE DERAILMENT.  THE CARS HAD BEEN
OPERATED AND THE TRACKS HAD BEEN USED PREVIOUSLY, SO FAR AS THE
EVIDENCE SHOWED, WITHOUT ANY SIMILAR MISHAP. 

IN SAN JUAN LIGHT CO. V. REQUENA, 224 U.S. 89, 98-99, THIS COURT
SAID:  "WHEN A THING WHICH CAUSES INJURY, WITHOUT FAULT OF THE INJURED
PERSON, IS SHOWN TO BE UNDER THE EXCLUSIVE CONTROL OF THE DEFENDANT,
AND THE INJURY IS SUCH AS IN THE ORDINARY COURSE OF THINGS DOES NOT
OCCUR IF THE ONE HAVING SUCH CONTROL USES PROPER CARE, IT AFFORDS
REASONABLE EVIDENCE, IN THE ABSENCE OF AN EXPLANATION, THAT THE INJURY
AROSE FROM THE DEFENDANT'S WANT OF CARE."  BOTH PRIOR TO AND AFTER THAT
CASE WAS DECIDED, THIS COURT HAS ACTED UPON THIS RULE IN VARYING TYPES
OF CASES.  TRANSPORTATION CO. V. DOWNER, 11 WALL.  129; INLAND &
SEABOARD COASTING CO. V. TOLSON, 139 U.S. 551, 555; GLEESON V. VIRGINIA
M.R.R., 140 U.S. 435; SWEENEY V. ERVING, 228 U.S. 233, 240.  SEE ALSO
SOUTHERN RY. V. BENNETT, 233 U.S. 80; FOLTIS, INC. V. CITY OF NEW YORK,
287 N.Y. 108, 38 N.E.2D 455, AND CASES COLLECTED, 153 A.L.R. 1134.  THE
CIRCUIT COURT OF APPEALS THOUGHT, HOWEVER, THAT THE RULE WAS IMPROPERLY
APPLIED IN THIS CASE BECAUSE THE RAILROAD INSTRUMENTALITIES HERE WERE
NOT UNDER THE "EXCLUSIVE CONTROL" OF THE RAILROAD; THAT "THE THING THAT
CAUSED THE INJURY COULD HAVE BEEN JESIONOWSKI'S FAULT, OR IT COULD HAVE
BEEN THE RAILROAD CORPORATION'S FAULT."  154 F.2D 703, 705. 

THE COURT'S REASONING WAS THIS:  PETITIONER WAS NOT ENTITLED TO HAVE
HER CASE SUBMITTED TO THE JURY EXCEPT UNDER THE RULE OF RES IPSA
LOQUITUR.  THAT RULE HAS RIGIDLY DEFINED PREREQUISITIES, ONE OF WHICH
IS THAT, TO APPLY IT, THE DEFENDANT MUST HAVE EXCLUSIVE CONTROL OF ALL
THE THINGS USED IN AN OPERATION WHICH MIGHT PROBABLY HAVE CAUSED
INJURY.  HERE THE RAILROAD DID NOT HAVE EXCLUSIVE CONTROL OF ALL
PROBABLE CAUSATIVE FACTORS, SINCE DECEASED HAD SOME IMMEDIATE CONTROL
OVER SWITCHING AND SIGNALING.  "EXCLUSIVE CONTROL" OF ALL PROBABLE
CAUSATIVE FACTORS, THE COURT REASONED, MEANS THAT RES IPSA LOQUITUR
CANNOT BE APPLIED EVEN THOUGH THOSE NON-EXCLUSIVELY CONTROLLED FACTORS
ARE CLEARLY SHOWN TO HAVE HAD NO CAUSAL CONNECTION WITH THE ACCIDENT. 

WE CANNOT AGREE.  RES IPSA LOQUITUR, THUS APPLIED, WOULD BAR JURIES
FROM DRAWING AN INFERENCE OF NEGLIGENCE ON ACCOUNT OF UNUSUAL ACCIDENTS
IN ALL OPERATIONS WHERE THE INJURED PERSON HAD HIMSELF PARTICIPATED IN
THE OPERATIONS, EVEN THOUGH IT WAS PROVED THAT HIS OPERATIONS OF THE
THINGS UNDER HIS CONTROL DID NOT CAUSE THE ACCIDENT.  THIS VIEWPOINT
UNDULY RESTRICTS THE POWER OF JURIES TO DECIDE QUESTIONS OF FACT, AND
IN THIS CASE THE JURY'S RIGHT TO DRAW INFERENCES FROM EVIDENCE AND THE
SUFFICIENCY OF THAT EVIDENCE TO SUPPORT A VERDICT ARE FEDERAL
QUESTIONS.  A CONCEPTUALISTIC INTERPRETATION OF RES IPSA LOQUITUR HAS
NEVER BEEN USED BY THIS COURT TO REDUCE THE JURY'S POWER TO DRAW
INFERENCES FROM FACTS.  SUCH AN INTERPRETATION UNDULY NARROWS THE
DOCTRINE AS THIS COURT HAS APPLIED IT. 

THIS COURT SAID, IN SWEENEY V. ERVING, 228 U.S. 233, 240, A DECISION
WHICH CUT THROUGH THE MASS OF VERBIAGE BUILT UP AROUND THE DOCTRINE OF
RES IPSA LOQUITUR, THAT "RES IPSA LOQUITUR MEANS THAT THE FACTS OF THE
OCCURRENCE WARRANT THE INFERENCE OF NEGLIGENCE, NOT THAT THEY COMPEL
SUCH AN INFERENCE; THAT THEY FURNISH CIRCUMSTANTIAL EVIDENCE OF
NEGLIGENCE WHERE DIRECT EVIDENCE OF IT MAY BE LACKING, BUT IT IS
EVIDENCE TO BE WEIGHED, NOT NECESSARILY TO BE ACCEPTED AS SUFFICIENT;
THAT THEY CALL FOR EXPLANATION OR REBUTTAL, NOT NECESSARILY THAT THEY
REQUIRE IT; THAT THEY MAKE A CASE TO BE DECIDED BY THE JURY, NOT THAT
THEY FORESTALL THE VERDICT."  THUS, THE QUESTION HERE REALLY IS NOT
WHETHER THE APPLICATION OF THE RULE RELIED ON FITS SQUARELY INTO SOME
JUDICIAL DEFINITION, RIGIDLY CONSTRUED, BUT WHETHER THE CIRCUMSTANCES
WERE SUCH AS TO JUSTIFY A FINDING THAT THIS DERAILMENT WAS A RESULT OF
THE DEFENDANT'S NEGLIGENCE.  WE HOLD THAT THEY WERE. 

DERAILMENTS ARE EXTRAORDINARY, NOT USUAL, HAPPENINGS.  WHEN THEY DO
OCCUR, A JURY MAY FAIRLY FIND THAT THEY OCCURRED AS A RESULT OF
NEGLIGENCE.  IT IS TRUE THAT THE JURY MIGHT HAVE FOUND HERE THAT THIS
ACCIDENT HAPPENED AS A RESULT OF THE NEGLIGENCE OF THE DECEASED; BUT
ALTHOUGH THE RESPONDENT OFFERED EVIDENCE TO ESTABLISH THIS FACT, IT
"DID NOT SATISFY THE JURY."  SOUTHERN RY. V. BENNETT, SUPRA AT 86. 
WITH THE DECEASED FREED FROM ANY NEGLIGENT CONDUCT IN CONNECTION WITH
THE SWITCH OR THE SIGNALING, WE HAVE LEFT AN ACCIDENT, ORDINARILY THE
RESULT OF NEGLIGENCE, WHICH MAY BE ATTRIBUTED ONLY TO THE LACK OF CARE
OF THE RAILROAD, THE ONLY OTHER AGENCY INVOLVED.  ONCE A JURY, HAVING
BEEN APPROPRIATELY INSTRUCTED, FINDS THAT THE EMPLOYEE'S ACTIVITIES DID
NOT CAUSE THE DERAILMENT, THE DEFENDANT REMAINS AS THE EXCLUSIVE
CONTROLLER OF ALL THE FACTORS WHICH MAY HAVE CAUSED THE ACCIDENT.  IT
WOULD RUN COUNTER TO COMMON EVERYDAY EXPERIENCE TO SAY THAT, AFTER A
FINDING BY THE JURY THAT THE THROWING OF THE SWITCH AND THE SIGNALING
DID NOT CONTRIBUTE TO THE DERAILMENT, THE JURY WAS WITHOUT AUTHORITY TO
INFER THAT EITHER THE NEGLIGENT OPERATION OF THE TRAIN OR THE NEGLIGENT
MAINTENANCE OF THE INSTRUMENTALITIES OTHER THAN THE SWITCH WAS THE
CAUSE OF THE DERAILMENT.  IT WAS UNCONTROVERTED THAT THE RAILROAD HAD
EXCLUSIVE CONTROL OF BOTH.  WE THINK THAT THE FACTS SUPPORT THE JURY'S
FINDINGS BOTH THAT THE DECEASED'S CONDUCT DID NOT CAUSE THE ACCIDENT
AND THAT THE RAILROAD'S NEGLIGENCE DID. 

RESPONDENT ALSO URGES HERE, AS IT DID IN THE CIRCUIT COURT OF
APPEALS, THAT BECAUSE THE TRIAL JUDGE DIRECTED A VERDICT FOR IT ON THE
FIRST COUNT OF THE COMPLAINT, WHICH CHARGED A DEFECT IN THE CAR, TRACK
OR ROADBED, THE COURT WAS NOT JUSTIFIED IN SUBMITTING TO THE JURY THE
QUESTION OF A DEFECT IN THESE RESPECTS UNDER THE SECOND COUNT.  THE
CIRCUIT COURT HELD THAT THIS QUESTION WAS NOT PROPERLY RAISED BEFORE IT
BECAUSE RESPONDENT HAD FAILED ON APPEAL TO MAKE "A CONCISE STATEMENT"
OF THE POINT AS REQUIRED BY RULE 75(D) OF THE RULES OF CIVIL
PROCEDURE.  RESPONDENT ARGUES THAT THE QUESTION WAS PROPERLY RAISED,
THOUGH NOT SPECIFICALLY, BY ITS GENERAL POINT THAT "THE DOCTRINE OF RES
IPSA LOQUITUR IS NOT APPLICABLE TO THE FACTS OF THIS CASE."  WE CANNOT
HOLD THAT THE CIRCUIT COURT ERRED WHEN IT REFUSED TO CONSIDER THE
QUESTION BECAUSE OF RESPONDENT'S FAILURE TO COMPLY WITH RULE 75(D). 
REVERSED. 

MR. JUSTICE REED, MR. JUSTICE JACKSON AND MR. JUSTICE BURTON WOULD
AFFIRM ON THE GROUNDS STATED IN THE OPINION OF THE CIRCUIT COURT OF
APPEALS FOR THE FIRST CIRCUIT. 
..END :














FRANCIS V. RESWEBER, 329 U.S. 459 


NO. 142.  ARGUED NOVEMBER 18, 1946.  - DECIDED JANUARY 13, 1947.  -
AFFIRMED. 


PETITIONER WAS CONVICTED IN A STATE COURT OF MURDER AND SENTENCED TO
BE ELECTROCUTED.  A WARRANT FOR HIS EXECUTION WAS DULY ISSUED.  HE WAS
PREPARED FOR ELECTROCUTION, PLACED IN THE ELECTRIC CHAIR AND SUBJECTED
TO A SHOCK WHICH WAS INTENDED TO CAUSE HIS DEATH BUT WHICH FAILED TO DO
SO, PRESUMABLY BECAUSE OF SOME MECHANICAL DIFFICULTY.  HE WAS REMOVED
FROM THE CHAIR AND RETURNED TO PRISON; BUT ANOTHER WARRANT FOR HIS
EXECUTION AT A LATER DATE WAS ISSUED.  HELD: 

1.  ASSUMING, BUT NOT DECIDING, THAT VIOLATIONS OF THE PRINCIPLES OF
THE DOUBLE JEOPARDY PROVISION OF THE FIFTH AMENDMENT AND THE CRUEL AND
UNUSUAL PUNISHMENT PROVISION OF THE EIGHTH AMENDMENT WOULD VIOLATE THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT - 

(A)  THE PROPOSED EXECUTION WOULD NOT VIOLATE THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT.  P. 462. 

(B)  IT WOULD NOT VIOLATE THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF
THE EIGHTH AMENDMENT.  P. 463. 

2.  THE PROPOSED EXECUTION WOULD NOT VIOLATE THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 465. 

3.  THE RECORD OF THE ORIGINAL TRIAL, SHOWING THE WARRANT OF ARREST,
THE INDICTMENT, THE APPOINTMENT OF COUNSEL, AND THE MINUTE ENTRIES OF
TRIAL, SELECTION OF JURY, VERDICT AND SENTENCE, CONTAINS NOTHING ON
WHICH THIS COURT COULD CONCLUDE THAT THE CONSTITUTIONAL RIGHTS OF
PETITIONER WERE INFRINGED AT THE TRIAL.  P. 465. 

LOUISIANA EX REL. FRANCIS V. RESWEBER, SHERIFF, ET AL. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

THE SUPREME COURT OF LOUISIANA DENIED PETITIONER'S APPLICATIONS FOR
WRITS OF CERTIORARI, MANDAMUS, PROHIBITION AND HABEAS CORPUS TO PREVENT
A SECOND ATTEMPT TO EXECUTE HIM FOR MURDER.  THIS COURT GRANTED
CERTIORARI.  328 U.S. 833.  AFFIRMED, P. 466. 

MR. JUSTICE REED ANNOUNCED THE JUDGMENT OF THE COURT IN AN OPINION IN
WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACK AND MR. JUSTICE JACKSON
JOIN. 

THIS WRIT OF CERTIORARI BRINGS BEFORE THIS COURT A UNIQUE SITUATION. 
THE PETITIONER, WILLIE FRANCIS, IS A COLORED CITIZEN OF LOUISIANA.  HE
WAS DULY CONVICTED OF MURDER AND IN SEPTEMBER, 1945, SENTENCED TO BE
ELECTROCUTED FOR THE CRIME.  UPON A PROPER DEATH WARRANT, FRANCIS WAS
PREPARED FOR EXECUTION AND ON MAY 3, 1946, PURSUANT TO THE WARRANT, WAS
PLACED IN THE OFFICIAL ELECTRIC CHAIR OF THE STATE OF LOUISIANA IN THE
PRESENCE OF THE AUTHORIZED WITNESSES.  THE EXECUTIONER THREW THE SWITCH
BUT, PRESUMABLY BECAUSE OF SOME MECHANICAL DIFFICULTY, DEATH DID NOT
RESULT.  HE WAS THEREUPON REMOVED FROM THE CHAIR AND RETURNED TO PRISON
WHERE HE NOW IS.  A NEW DEATH WARRANT WAS ISSUED BY THE GOVERNOR OF
LOUISIANA, FIXING THE EXECUTION FOR MAY 9, 1946. 

APPLICATIONS TO THE SUPREME COURT OF THE STATE WERE FILED FOR WRITS
OF CERTIORARI, MANDAMUS, PROHIBITION AND HABEAS CORPUS, DIRECTED TO THE
APPROPRIATE OFFICIALS IN THE STATE.  EXECUTION OF THE SENTENCE WAS
STAYED.  BY THE APPLICATIONS PETITIONER CLAIMED THE PROTECTION OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ON THE GROUND THAT AN
EXECUTION UNDER THE CIRCUMSTANCES DETAILED WOULD DENY DUE PROCESS TO
HIM BECAUSE OF THE DOUBLE JEOPARDY PROVISION OF THE FIFTH AMENDMENT AND
THE CRUEL AND UNUSUAL PUNISHMENT PROVISION OF THE EIGHTH AMENDMENT. 
FN1  THESE FEDERAL CONSTITUTIONAL PROTECTIONS, PETITIONER CLAIMED,
WOULD BE DENIED BECAUSE HE HAD ONCE GONE THROUGH THE DIFFICULT
PREPARATION FOR EXECUTION AND HAD ONCE RECEIVED THROUGH HIS BODY A
CURRENT OF ELECTRICITY INTENDED TO CAUSE DEATH.  THE SUPREME COURT OF
LOUISIANA DENIED THE APPLICATIONS ON THE GROUND OF A LACK OF ANY BASIS
FOR JUDICIAL RELIEF.  THAT IS, THE STATE COURT CONCLUDED THERE WAS NO
VIOLATION OF STATE OR NATIONAL LAW ALLEGED IN THE VARIOUS
APPLICATIONS.  IT SPOKE OF THE FACT THAT NO "CURRENT OF SUFFICIENT
INTENSITY TO CAUSE DEATH" PASSED THROUGH PETITIONER'S BODY.  IT
REFERRED SPECIFICALLY TO THE FACT THAT THE APPLICATIONS OF PETITIONER
INVOKED THE PROVISIONS OF THE LOUISIANA CONSTITUTION AGAINST CRUEL AND
INHUMAN PUNISHMENTS AND PUTTING ONE IN JEOPARDY OF LIFE OR LIBERTY
TWICE FOR THE SAME OFFENSE.  WE GRANTED CERTIORARI ON A PETITION
SETTING FORTH THE AFOREMENTIONED CONTENTIONS, TO CONSIDER THE ALLEGED
VIOLATIONS OF RIGHTS UNDER THE FEDERAL CONSTITUTION IN THE UNUSUAL
CIRCUMSTANCES OF THIS CASE.  328 U.S. 833.  FOR MATTERS OF STATE LAW,
THE OPINION AND ORDER OF THE SUPREME COURT OF LOUISIANA ARE BINDING ON
THIS COURT, HEBERT V. LOUISIANA, 272 U.S. 312, 317.  SO FAR AS WE ARE
AWARE, THIS CASE IS WITHOUT PRECEDENT IN ANY COURT. 

TO DETERMINE WHETHER OR NOT THE EXECUTION OF THE PETITIONER MAY
FAIRLY TAKE PLACE AFTER THE EXPERIENCE THROUGH WHICH HE PASSED, WE
SHALL EXAMINE THE CIRCUMSTANCES UNDER THE ASSUMPTION, BUT WITHOUT SO
DECIDING, THAT VIOLATION OF THE PRINCIPLES OF THE FIFTH AND EIGHTH
AMENDMENTS, AS TO DOUBLE JEOPARDY AND CRUEL AND UNUSUAL PUNISHMENT,
WOULD BE VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  FN2  AS NOTHING HAS BEEN BROUGHT TO OUR ATTENTION TO
SUGGEST THE CONTRARY, WE MUST AND DO ASSUME THAT THE STATE OFFICIALS
CARRIED OUT THEIR DUTIES UNDER THE DEATH WARRANT IN A CAREFUL AND
HUMANE MANNER.  ACCIDENTS HAPPEN FOR WHICH NO MAN IS TO BLAME.  WE TURN
TO THE QUESTION AS TO WHETHER THE PROPOSED ENFORCEMENT OF THE CRIMINAL
LAW OF THE STATE IS OFFENSIVE TO ANY CONSTITUTIONAL REQUIREMENTS TO
WHICH REFERENCE HAS BEEN MADE. 

FIRST.  OUR MINDS REBEL AGAINST PERMITTING THE SAME SOVEREIGNTY TO
PUNISH AN ACCUSED TWICE FOR THE SAME OFFENSE.  EX PARTE LANGE, 18
WALL.  163, 168, 175; IN RE BRADLEY, 318 U.S. 50.  COMPARE UNITED
STATES V. LANZA, 260 U.S. 377, 382.  BUT WHERE THE ACCUSED SUCCESSFULLY
SEEKS REVIEW OF A CONVICTION, THERE IS NO DOUBLE JEOPARDY UPON A NEW
TRIAL.  UNITED STATES V. BALL, 163 U.S. 662, 672.  SEE PEOPLE V.
TREZZA, 128 N.Y. 529, 535, 28 N.E. 533.  EVEN WHERE A STATE OBTAINS A
NEW TRIAL AFTER CONVICTION BECAUSE OF ERRORS, WHILE AN ACCUSED MAY BE
PLACED ON TRIAL A SECOND TIME, IT IS NOT THE SORT OF HARDSHIP TO THE
ACCUSED THAT IS FORBIDDEN BY THE FOURTEENTH AMENDMENT.  PALKO V.
CONNECTICUT, 302 U.S. 319, 328.  FN3  AS THIS IS A PROSECUTION UNDER
STATE LAW, SO FAR AS DOUBLE JEOPARDY IS CONCERNED, THE PALKO CASE IS
DECISIVE.  FOR WE SEE NO DIFFERENCE FROM A CONSTITUTIONAL POINT OF VIEW
BETWEEN A NEW TRIAL FOR ERROR OF LAW AT THE INSTANCE OF THE STATE THAT
RESULTS IN A DEATH SENTENCE INSTEAD OF IMPRISONMENT FOR LIFE AND AN
EXECUTION THAT FOLLOWS A FAILURE OF EQUIPMENT.  WHEN AN ACCIDENT, WITH
NO SUGGESTION OF MALEVOLENCE, PREVENTS THE CONSUMMATION OF A SENTENCE,
THE STATE'S SUBSEQUENT COURSE IN THE ADMINISTRATION OF ITS CRIMINAL LAW
IS NOT AFFECTED ON THAT ACCOUNT BY ANY REQUIREMENT OF DUE PROCESS UNDER
THE FOURTEENTH AMENDMENT.  WE FIND NO DOUBLE JEOPARDY HERE WHICH CAN BE
SAID TO AMOUNT TO A DENIAL OF FEDERAL DUE PROCESS IN THE PROPOSED
EXECUTION. 

SECOND.  WE FIND NOTHING IN WHAT TOOK PLACE HERE WHICH AMOUNTS TO
CRUEL AND UNUSUAL PUNISHMENT IN THE CONSTITUTIONAL SENSE.  THE CASE
BEFORE US DOES NOT CALL FOR AN EXAMINATION INTO ANY PUNISHMENTS EXCEPT
THAT OF DEATH.  SEE WEEMS V. UNITED STATES, 217 U.S. 349.  THE
TRADITIONAL HUMANITY OF MODERN ANGLO-AMERICAN LAW FORBIDS THE
INFLICTION OF UNNECESSARY PAIN IN THE EXECUTION OF THE DEATH SENTENCE. 
PROHIBITION AGAINST THE WANTON INFLICTION OF PAIN HAS COME INTO OUR LAW
FROM THE BILL OF RIGHTS OF 1688.  THE IDENTICAL WORDS APPEAR IN OUR
EIGHTH AMENDMENT.  THE FOURTEENTH WOULD PROHIBIT BY ITS DUE PROCESS
CLAUSE EXECUTION BY A STATE IN A CRUEL MANNER.  FN4 

PETITIONER'S SUGGESTION IS THAT BECAUSE HE ONCE UNDERWENT THE
PSYCHOLOGICAL STRAIN OF PREPARATION FOR ELECTROCUTION, NOW TO REQUIRE
HIM TO UNDERGO THIS PREPARATION AGAIN SUBJECTS HIM TO A LINGERING OR
CRUEL AND UNUSUAL PUNISHMENT.  EVEN THE FACT THAT PETITIONER HAS
ALREADY BEEN SUBJECTED TO A CURRENT OF ELECTRICITY DOES NOT MAKE HIS
SUBSEQUENT EXECUTION ANY MORE CRUEL IN THE CONSTITUTIONAL SENSE THAN
ANY OTHER EXECUTION.  THE CRUELTY AGAINST WHICH THE CONSTITUTION
PROTECTS A CONVICTED MAN IS CRUELTY INHERENT IN THE METHOD OF
PUNISHMENT, NOT THE NECESSARY SUFFERING INVOLVED IN ANY METHOD EMPLOYED
TO EXTINGUISH LIFE HUMANELY.  THE FACT THAT AN UNFORESEEABLE ACCIDENT
PREVENTED THE PROMPT CONSUMMATION OF THE SENTENCE CANNOT, IT SEEMS TO
US, ADD AN ELEMENT OF CRUELTY TO A SUBSEQUENT EXECUTION.  THERE IS NO
PURPOSE TO INFLICT UNNECESSARY PAIN NOR ANY UNNECESSARY PAIN INVOLVED
IN THE PROPOSED EXECUTION.  THE SITUATION OF THE UNFORTUNATE VICTIM OF
THIS ACCIDENT IS JUST AS THOUGH HE HAD SUFFERED THE IDENTICAL AMOUNT OF
MENTAL ANGUISH AND PHYSICAL PAIN IN ANY OTHER OCCURRENCE, SUCH AS, FOR
EXAMPLE, A FIRE IN THE CELL BLOCK.  WE CANNOT AGREE THAT THE HARDSHIP
IMPOSED UPON THE PETITIONER RISES TO THAT LEVEL OF HARDSHIP DENOUNCED
AS DENIAL OF DUE PROCESS BECAUSE OF CRUELTY. 

THIRD.  THE SUPREME COURT OF LOUISIANA ALSO REJECTED PETITIONER'S
CONTENTION THAT DEATH INFLICTED AFTER HIS PRIOR SUFFERINGS WOULD DENY
HIM THE EQUAL PROTECTION OF THE LAWS, GUARANTEED BY THE FOURTEENTH
AMENDMENT.  THIS SUGGESTION IN SO FAR AS IT DIFFERS FROM THE DUE
PROCESS ARGUMENT IS BASED ON THE IDEA THAT EXECUTION, AFTER AN ATTEMPT
AT EXECUTION HAS FAILED, WOULD BE A MORE SEVERE PUNISHMENT THAN IS
IMPOSED UPON OTHERS GUILTY OF A LIKE OFFENSE.  THAT IS, SINCE OTHERS DO
NOT GO THROUGH THE STRAIN OF PREPARATION FOR EXECUTION A SECOND TIME OR
HAVE NOT EXPERIENCED A NON-LETHAL CURRENT IN A PRIOR ATTEMPT AT
EXECUTION, AS PETITIONER DID, TO COMPEL PETITIONER TO SUBMIT TO
EXECUTION AFTER THESE PRIOR EXPERIENCES DENIES TO HIM EQUAL
PROTECTION.  EQUAL PROTECTION DOES NOT PROTECT A PRISONER AGAINST EVEN
ILLEGAL ACTS OF OFFICERS IN CHARGE OF HIM, MUCH LESS AGAINST ACCIDENTS
DURING HIS DETENTION FOR EXECUTION.  SEE LISENBA V. CALIFORNIA, 314
U.S. 219, 226.  LAWS CANNOT PREVENT ACCIDENTS NOR CAN A LAW EQUALLY
PROTECT ALL AGAINST THEM.  SO LONG AS THE LAW APPLIES TO ALL ALIKE, THE
REQUIREMENTS OF EQUAL PROTECTION ARE MET.  WE HAVE NO RIGHT TO ASSUME
THAT LOUISIANA SINGLED OUT FRANCIS FOR A TREATMENT OTHER THAN THAT
WHICH HAS BEEN OR WOULD GENERALLY BE APPLIED. 

FOURTH.  THERE IS A SUGGESTION IN THE BRIEF THAT THE ORIGINAL TRIAL
ITSELF WAS SO UNFAIR TO THE PETITIONER AS TO JUSTIFY A REVERSAL OF THE
JUDGMENT OF CONVICTION AND A NEW TRIAL.  PETITIONER'S CLAIM IN HIS
BRIEF IS THAT HE WAS INADEQUATELY REPRESENTED BY COUNSEL.  THE RECORD
OF THE ORIGINAL TRIAL PRESENTED TO US SHOWS THE WARRANT FOR ARREST, THE
INDICTMENT, THE APPOINTMENT OF COUNSEL AND THE MINUTE ENTRIES OF TRIAL,
SELECTION OF JURY, VERDICT AND SENTENCE.  THERE IS NOTHING IN ANY OF
THESE PAPERS TO SHOW ANY VIOLATION OF PETITIONER'S CONSTITUTIONAL
RIGHTS.  SEE CARTER V. ILLINOIS, 329 U.S. 173.  REVIEW IS SOUGHT HERE
BECAUSE OF A DENIAL OF DUE PROCESS OF LAW THAT WOULD BE BROUGHT ABOUT
BY EXECUTION OF PETITIONER AFTER FAILURE OF THE FIRST EFFORT TO
ELECTROCUTE HIM.  NOTHING IS BEFORE US UPON WHICH A RULING CAN BE
PREDICATED AS TO ALLEGED DENIAL OF FEDERAL CONSTITUTIONAL RIGHTS DURING
PETITIONER'S TRIAL.  ON THIS RECORD, WE SEE NOTHING UPON WHICH WE COULD
CONCLUDE THAT THE CONSTITUTIONAL RIGHTS OF PETITIONER WERE INFRINGED. 
AFFIRMED. 

FN1  FIFTH AMENDMENT:  "...  NOR SHALL ANY PERSON BE SUBJECT FOR THE
SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB; ..." 

EIGHTH AMENDMENT:  "EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR
EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED." 

FN2  SEE TWINING V. NEW JERSEY, 211 U.S. 78, 99; PALKO V.
CONNECTICUT, 302 U.S. 319, 324; IN RE KEMMLER, 136 U.S. 436, 445;
COLLINS V. JOHNSTON, 237 U.S. 502, 510. 

FN3  SEE KEPNER V. UNITED STATES, 195 U.S. 100, 129; CF. UNITED
STATES V. BALL, 163 U.S. 662, 666-70. 

FN4  THIS COURT SAID OF A SIMILAR CLAUSE EMBODIED IN THE CONSTITUTION
OF NEW YORK, IN RE KEMMLER, 136 U.S. 436, 446: 

"...  BUT THE LANGUAGE IN QUESTION AS USED IN THE CONSTITUTION OF THE
STATE OF NEW YORK WAS INTENDED PARTICULARLY TO OPERATE UPON THE
LEGISLATURE OF THE STATE, TO WHOSE CONTROL THE PUNISHMENT OF CRIME WAS
ALMOST WHOLLY CONFIDED.  SO THAT, IF THE PUNISHMENT PRESCRIBED FOR AN
OFFENCE AGAINST THE LAWS OF THE STATE WERE MANIFESTLY CRUEL AND
UNUSUAL, AS BURNING AT THE STAKE, CRUCIFIXION, BREAKING ON THE WHEEL,
OR THE LIKE, IT WOULD BE THE DUTY OF THE COURTS TO ADJUDGE SUCH
PENALTIES TO BE WITHIN THE CONSTITUTIONAL PROHIBITION." 

IT ADDED, P. 447: 

"PUNISHMENTS ARE CRUEL WHEN THEY INVOLVE TORTURE OR A LINGERING
DEATH; BUT THE PUNISHMENT OF DEATH IS NOT CRUEL, WITHIN THE MEANING OF
THAT WORD AS USED IN THE CONSTITUTION.  IT IMPLIES THERE SOMETHING
INHUMAN AND BARBAROUS, SOMETHING MORE THAN THE MERE EXTINGUISHMENT OF
LIFE." 

LOUISIANA HAS THE SAME HUMANE PROVISION IN ITS CONSTITUTION. 
LOUISIANA CONSTITUTION, ART. I, SEC. 12.  THE KEMMLER CASE DENIED THAT
ELECTROCUTION INFRINGED THE FEDERAL CONSTITUTIONAL RIGHTS OF A
CONVICTED CRIMINAL SENTENCED TO EXECUTION. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

WHEN FOUR MEMBERS OF THE COURT FIND THAT A STATE HAS DENIED TO A
PERSON THE DUE PROCESS WHICH THE FOURTEENTH AMENDMENT SAFEGUARDS, IT
SEEMS TO ME IMPORTANT TO BE EXPLICIT REGARDING THE CRITERIA BY WHICH
THE STATE'S DUTY OF OBEDIENCE TO THE CONSTITUTION MUST BE JUDGED. 
PARTICULARLY IS THIS SO WHEN LIFE IS AT STAKE. 

UNTIL JULY 28, 1868, WHEN THE FOURTEENTH AMENDMENT WAS RATIFIED, THE
CONSTITUTION OF THE UNITED STATES LEFT THE STATES FREE TO CARRY OUT
THEIR OWN NOTIONS OF CRIMINAL JUSTICE, EXCEPT INSOFAR AS THEY WERE
LIMITED BY ARTICLE I, SEC. 10 OF THE CONSTITUTION WHICH DECLARES:  "NO
STATE SHALL  ... PASS ANY BILL OF ATTAINDER, (OR) EX POST FACTO LAW
..."  THE FOURTEENTH AMENDMENT PLACED NO SPECIFIC RESTRAINTS UPON THE
STATES IN THE FORMULATION OR THE ADMINISTRATION OF THEIR CRIMINAL LAW. 
IT RESTRICTED THE FREEDOM OF THE STATES GENERALLY, SO THAT STATES
THEREAFTER COULD NOT "ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS
OF THE UNITED STATES," OR "DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW," OR "DENY TO ANY PERSON WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS." 

THESE ARE BROAD, INEXPLICIT CLAUSES OF THE CONSTITUTION, UNLIKE
SPECIFIC PROVISIONS OF THE FIRST EIGHT AMENDMENTS FORMULATED BY THE
FOUNDERS TO GUARD AGAINST RECURRENCE OF WELL-DEFINED HISTORIC
GRIEVANCES.  BUT BROAD AS THESE CLAUSES ARE, THEY ARE NOT GENERALITIES
OF EMPTY VAGUENESS.  THEY ARE CIRCUMSCRIBED PARTLY BY HISTORY AND
PARTLY BY THE PROBLEMS OF GOVERNMENT, LARGE AND DYNAMIC THOUGH THEY BE,
WITH WHICH THEY ARE CONCERNED.  THE "PRIVILEGES OR IMMUNITIES OF
CITIZENS OF THE UNITED STATES" CONCERN THE DUAL CITIZENSHIP UNDER OUR
FEDERAL SYSTEM.  THE SAFEGUARDS OF "DUE PROCESS OF LAW" AND "THE EQUAL
PROTECTION OF THE LAWS" SUMMARIZE THE MEANING OF THE STRUGGLE FOR
FREEDOM OF ENGLISH-SPEAKING PEOPLES.  THEY RUN BACK TO MAGNA CARTA BUT
CONTEMPLATE NO LESS ADVANCES IN THE CONCEPTIONS OF JUSTICE AND FREEDOM
BY A PROGRESSIVE SOCIETY.  SEE THE CLASSIC LANGUAGE OF MR. JUSTICE
MATTHEWS IN HURTADO V. CALIFORNIA, 110 U.S. 516, 530-31.    WHEN,
SHORTLY AFTER ITS ADOPTION, THE FOURTEENTH AMENDMENT CAME BEFORE THIS
COURT FOR CONSTRUCTION, IT WAS URGED THAT THE "PRIVILEGES OR IMMUNITIES
OF CITIZENS OF THE UNITED STATES" WHICH WERE NOT TO BE ABRIDGED BY ANY
STATE WERE THE PRIVILEGES AND IMMUNITIES WHICH CITIZENS THERETOFORE
ENJOYED UNDER THE CONSTITUTION.  IF THAT VIEW HAD PREVAILED, THE
PRIVILEGES OR IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT WOULD HAVE
PLACED UPON THE STATES THE LIMITATIONS WHICH THE SPECIFIC ARTICLES OF
THE FIRST EIGHT AMENDMENTS HAD THERETOFORE PLACED UPON THE AGENCIES OF
THE NATIONAL GOVERNMENT.  AFTER THE FULLEST CONSIDERATION THAT VIEW WAS
REJECTED.  THE REJECTION HAS THE AUTHORITY THAT COMES FROM
CONTEMPORANEOUS KNOWLEDGE OF THE PURPOSES OF THE FOURTEENTH AMENDMENT. 
SEE SLAUGHTER-HOUSE CASES, 16 WALL.  36, 67-68; DAVIDSON V. NEW
ORLEANS, 96 U.S. 97.  THE NOTION THAT THE PRIVILEGES OR IMMUNITIES
CLAUSE OF THE FOURTEENTH AMENDMENT ABSORBED, AS IT IS CALLED, THE
PROVISIONS OF THE BILL OF RIGHTS THAT LIMIT THE FEDERAL GOVERNMENT HAS
NEVER BEEN GIVEN COUNTENANCE BY THIS COURT. 

NOT UNTIL RECENTLY WAS IT SUGGESTED THAT THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT WAS MERELY A COMPENDIOUS REFERENCE TO THE BILL
OF RIGHTS WHEREBY THE STATES WERE NOW RESTRICTED IN DEVISING AND
ENFORCING THEIR PENAL CODE PRECISELY AS IS THE FEDERAL GOVERNMENT BY
THE FIRST EIGHT AMENDMENTS.  ON THIS VIEW, THE STATES WOULD BE CONFINED
IN THE ENFORCEMENT OF THEIR CRIMINAL CODES BY THOSE VIEWS FOR
SAFEGUARDING THE RIGHTS OF THE INDIVIDUAL WHICH WERE DEEMED NECESSARY
IN THE EIGHTEENTH CENTURY.  SOME OF THESE SAFEGUARDS HAVE PERDURING
VALIDITY.  SOME GREW OUT OF TRANSIENT EXPERIENCE OR FORMULATED REMEDIES
WHICH TIME MIGHT WELL IMPROVE.  THE FOURTEENTH AMENDMENT DID NOT MEAN
TO IMPRISON THE STATES INTO THE LIMITED EXPERIENCE OF THE EIGHTEENTH
CENTURY.  IT DID MEAN TO WITHDRAW FROM THE STATES THE RIGHT TO ACT IN
WAYS THAT ARE OFFENSIVE TO A DECENT RESPECT FOR THE DIGNITY OF MAN, AND
HEEDLESS OF HIS FREEDOM. 

THESE ARE VERY BROAD TERMS BY WHICH TO ACCOMMODATE FREEDOM AND
AUTHORITY.  AS HAS BEEN SUGGESTED FROM TIME TO TIME, THEY MAY BE TOO
LARGE TO SERVE AS THE BASIS FOR ADJUDICATION, IN THAT THEY ALLOW MUCH
ROOM FOR INDIVIDUAL NOTIONS OF POLICY.  THAT IS NOT OUR CONCERN.  THE
FACT IS THAT THE DUTY OF SUCH ADJUDICATION ON A BASIS NO LESS NARROW
HAS BEEN COMMITTED TO THIS COURT. 

IN AN IMPRESSIVE BODY OF DECISIONS THIS COURT HAS DECIDED THAT THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT EXPRESSES A DEMAND FOR
CIVILIZED STANDARDS WHICH ARE NOT DEFINED BY THE SPECIFICALLY
ENUMERATED GUARANTEES OF THE BILL OF RIGHTS.  THEY NEITHER CONTAIN THE
PARTICULARITIES OF THE FIRST EIGHT AMENDMENTS NOR ARE THEY CONFINED TO
THEM.  THAT DUE PROCESS OF LAW HAS ITS OWN INDEPENDENT FUNCTION HAS
BEEN ILLUSTRATED IN NUMEROUS DECISIONS, AND HAS BEEN EXPOUNDED IN THE
OPINIONS OF THE COURT WHICH HAVE CANVASSED THE MATTER MOST THOROUGHLY. 
SEE HURTADO V. CALIFORNIA, SUPRA; TWINING V. NEW JERSEY, 211 U.S. 78;
SNYDER V. MASSACHUSETTS, 291 U.S. 97; PALKO V. CONNECTICUT, 302 U.S.
319.  INSOFAR AS DUE PROCESS UNDER THE FOURTEENTH AMENDMENT REQUIRES
THE STATES TO OBSERVE ANY OF THE IMMUNITIES "THAT ARE VALID AS AGAINST
THE FEDERAL GOVERNMENT BY FORCE OF THE SPECIFIC PLEDGES OF PARTICULAR
AMENDMENTS," IT DOES SO BECAUSE THEY "HAVE BEEN FOUND TO BE IMPLICIT IN
THE CONCEPT OF ORDERED LIBERTY, AND THUS, THROUGH THE FOURTEENTH
AMENDMENT, BECOME VALID AS AGAINST THE STATES."  PALKO V. CONNECTICUT,
SUPRA, AT 324-25. 

THE FEDERAL BILL OF RIGHTS REQUIRES THAT PROSECUTIONS FOR FEDERAL
CRIMES BE INITIATED BY A GRAND JURY AND TRIED BY A PETTY JURY; IT
PROTECTS AN ACCUSED FROM BEING A WITNESS AGAINST HIMSELF.  THE STATES
ARE FREE TO CONSULT THEIR OWN CONCEPTIONS OF POLICY IN DISPENSING WITH
THE GRAND JURY, IN MODIFYING OR ABOLISHING THE PETTY JURY, IN
WITHHOLDING THE PRIVILEGE AGAINST SELF-CRIMINATION.  SEE MAXWELL V.
DOW, 176 U.S. 581; TWINING V. NEW JERSEY, SUPRA; SNYDER V.
MASSACHUSETTS, SUPRA; PALKO V. CONNECTICUT, SUPRA, AT 323, 324; CF.
FELDMAN V. UNITED STATES, 322 U.S. 487.  IN SHORT, THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT WITHDRAW THE FREEDOM OF A
STATE TO ENFORCE ITS OWN NOTIONS OF FAIRNESS IN THE ADMINISTRATION OF
CRIMINAL JUSTICE UNLESS, AS IT WAS PUT FOR THE COURT BY MR. JUSTICE
CARDOZO, "IN SO DOING IT OFFENDS SOME PRINCIPLE OF JUSTICE SO ROOTED IN
THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS
FUNDAMENTAL."  SNYDER V. MASSACHUSETTS, SUPRA, AT 105. 

A STATE MAY OFFEND SUCH A PRINCIPLE OF JUSTICE BY BRUTAL SUBJECTION
OF AN INDIVIDUAL TO SUCCESSIVE RETRIALS ON A CHARGE ON WHICH HE HAS
BEEN ACQUITTED.  SUCH CONDUCT BY A STATE MIGHT BE A DENIAL OF DUE
PROCESS, BUT NOT BECAUSE THE PROTECTION AGAINST DOUBLE JEOPARDY IN A
FEDERAL PROSECUTION AGAINST WHICH THE FIFTH AMENDMENT SAFEGUARDS LIMITS
A STATE.  FOR THE DISPUTATIONS THAT ARE ENGENDERED BY TECHNICAL ASPECTS
OF DOUBLE JEOPARDY AS ENSHRINED IN THE FIFTH AMENDMENT, SEE THE
MAJORITY AND DISSENTING OPINIONS IN EX PARTE LANGE, 18 WALL.  163, AND
IN RE BRADLEY, 318 U.S. 50.  AGAIN, A STATE MAY BE FOUND TO DENY A
PERSON DUE PROCESS BY TREATING EVEN ONE GUILTY OF CRIME IN A MANNER
THAT VIOLATES STANDARDS OF DECENCY MORE OR LESS UNIVERSALLY ACCEPTED
THOUGH NOT WHEN IT TREATS HIM BY A MODE ABOUT WHICH OPINION IS FAIRLY
DIVIDED.  BUT THE PENOLOGICAL POLICY OF A STATE IS NOT TO BE TESTED BY
THE SCOPE OF THE EIGHTH AMENDMENT AND IS NOT INVOLVED IN THE
CONTROVERSY WHICH IS NECESSARILY EVOKED BY THAT AMENDMENT AS TO THE
HISTORIC MEANING OF "CRUEL AND UNUSUAL PUNISHMENT."  SEE WEEMS V.
UNITED STATES, 217 U.S. 349, AND PARTICULARLY THE DISSENTING OPINION OF
WHITE AND HOLMES, JJ. 

ONCE WE ARE EXPLICIT IN STATING THE PROBLEM BEFORE US IN TERMS
DEFINED BY AN UNBROKEN SERIES OF DECISIONS, WE CANNOT ESCAPE
ACKNOWLEDGING THAT IT INVOLVES THE APPLICATION OF STANDARDS OF FAIRNESS
AND JUSTICE VERY BROADLY CONCEIVED.  THEY ARE NOT THE APPLICATION OF
MERELY PERSONAL STANDARDS BUT THE IMPERSONAL STANDARDS OF SOCIETY WHICH
ALONE JUDGES, AS THE ORGANS OF LAW, ARE EMPOWERED TO ENFORCE.  WHEN THE
STANDARDS FOR JUDICIAL JUDGMENT ARE NOT NARROWER THAN "IMMUTABLE
PRINCIPLES OF JUSTICE WHICH INHERE IN THE VERY IDEA OF FREE
GOVERNMENT," HOLDEN V. HARDY, 169 U.S. 366, 389, "FUNDAMENTAL
PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR
CIVIL AND POLITICAL INSTITUTIONS," HEBERT V. LOUISIANA, 272 U.S. 312,
316, "IMMUNITIES  ... IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY,"
PALKO V. CONNECTICUT, SUPRA, AT 324-25, GREAT TOLERANCE TOWARD A
STATE'S CONDUCT IS DEMANDED OF THIS COURT.  SUCH WERE RECENTLY STATED
TO BE "THE CONTROLLING PRINCIPLES."  SEE MR. CHIEF JUSTICE STONE IN
MALINSKI V. NEW YORK, 324 U.S. 401, 438, IN CONNECTION WITH THE
CONCURRING OPINION IN THAT CASE, IBID., 412, 416, 417. 

I CANNOT BRING MYSELF TO BELIEVE THAT FOR LOUISIANA TO LEAVE TO
EXECUTIVE CLEMENCY, RATHER THAN TO REQUIRE, MITIGATION OF A SENTENCE OF
DEATH DULY PRONOUNCED UPON CONVICTION FOR MURDER BECAUSE A FIRST
ATTEMPT TO CARRY IT OUT WAS AN INNOCENT MISADVENTURE, OFFENDS A
PRINCIPLE OF JUSTICE "ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR
PEOPLE."  SEE SNYDER V. MASSACHUSETTS, SUPRA, AT 105.  SHORT OF THE
COMPULSION OF SUCH A PRINCIPLE, THIS COURT MUST ABSTAIN FROM
INTERFERENCE WITH STATE ACTION NO MATTER HOW STRONG ONE'S PERSONAL
FEELING OF REVULSION AGAINST A STATE'S INSISTENCE ON ITS POUND OF
FLESH.  ONE MUST BE ON GUARD AGAINST FINDING IN PERSONAL DISAPPROVAL A
REFLECTION OF MORE OR LESS PREVAILING CONDEMNATION.  STRONGLY DRAWN AS
I AM TO SOME OF THE SENTIMENTS EXPRESSED BY MY BROTHER BURTON, I CANNOT
RID MYSELF OF THE CONVICTION THAT WERE I TO HOLD THAT LOUISIANA WOULD
TRANSGRESS THE DUE PROCESS CLAUSE IF THE STATE WERE ALLOWED, IN THE
PRECISE CIRCUMSTANCES BEFORE US, TO CARRY OUT THE DEATH SENTENCE, I
WOULD BE ENFORCING MY PRIVATE VIEW RATHER THAN THAT CONSENSUS OF
SOCIETY'S OPINION WHICH, FOR PURPOSES OF DUE PROCESS, IS THE STANDARD
ENJOINED BY THE CONSTITUTION. 

THE FACT THAT I REACH THIS CONCLUSION DOES NOT MEAN THAT A
HYPOTHETICAL SITUATION, WHICH ASSUMES A SERIES OF ABORTIVE ATTEMPTS AT
ELECTROCUTION OR EVEN A SINGLE, CRUELLY WILLFUL ATTEMPT, WOULD NOT
RAISE DIFFERENT QUESTIONS.  WHEN THE FOURTEENTH AMENDMENT FIRST CAME
HERE FOR APPLICATION THE COURT ABSTAINED FROM VENTURING EVEN A
TENTATIVE DEFINITION OF DUE PROCESS.  WITH WISE FORETHOUGHT IT
INDICATED THAT WHAT MAY BE FOUND WITHIN OR WITHOUT THE DUE PROCESS
CLAUSE MUST INEVITABLY BE LEFT TO "THE GRADUAL PROCESS OF JUDICIAL
INCLUSION AND EXCLUSION, AS THE CASES PRESENTED FOR DECISION SHALL
REQUIRE, WITH THE REASONING ON WHICH SUCH DECISIONS MAY BE FOUNDED." 
DAVIDSON V. NEW ORLEANS, SUPRA, AT 104.  THIS IS ANOTHER WAY OF SAYING
THAT THESE ARE MATTERS WHICH DEPEND ON "DIFFERENCES OF DEGREE.  THE
WHOLE LAW DOES SO AS SOON AS IT IS CIVILIZED."  HOLMES, J., IN LEROY
FIBRE CO. V. CHICAGO, M. & ST. P.R. CO., 232 U.S. 340, 354.  ESPECIALLY
IS THIS SO AS TO QUESTIONS ARISING UNDER THE DUE PROCESS CLAUSE.  A
FINDING THAT IN THIS CASE THE STATE OF LOUISIANA HAS NOT GONE BEYOND
ITS POWERS IS FOR ME NOT THE STARTING POINT FOR ABSTRACTLY LOGICAL
EXTENSION.  SINCE I CANNOT SAY THAT IT WOULD BE "REPUGNANT TO THE
CONSCIENCE OF MANKIND," PALKO V. CONNECTICUT, SUPRA, AT 323, FOR
LOUISIANA TO EXERCISE THE POWER ON WHICH SHE HERE STANDS, I CANNOT SAY
THAT THE CONSTITUTION WITHHOLDS IT. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY
AND MR. JUSTICE RUTLEDGE CONCUR, DISSENTING. 

UNDER CIRCUMSTANCES UNIQUE IN JUDICIAL HISTORY, THE RELATOR ASKS THIS
COURT TO STAY HIS EXECUTION ON THE GROUND THAT IT WILL VIOLATE THE DUE
PROCESS OF LAW GUARANTEED TO HIM BY THE CONSTITUTION OF THE UNITED
STATES.  WE BELIEVE THAT THE UNUSUAL FACTS BEFORE US REQUIRE THAT THE
JUDGMENT OF THE SUPREME COURT OF LOUISIANA BE VACATED AND THAT THIS
CAUSE BE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  THOSE PROCEEDINGS SHOULD INCLUDE THE DETERMINATION OF CERTAIN
MATERIAL FACTS NOT PREVIOUSLY DETERMINED, INCLUDING THE EXTENT, IF ANY,
TO WHICH ELECTRIC CURRENT WAS APPLIED TO THE RELATOR DURING HIS
ATTEMPTED ELECTROCUTION ON MAY 3, 1946.  WHERE LIFE IS TO BE TAKEN,
THERE MUST BE NO AVOIDABLE ERROR OF LAW OR UNCERTAINTY OF FACT. 

THE RELATOR'S EXECUTION WAS ORDERED BY THE GOVERNOR OF LOUISIANA TO
TAKE PLACE MAY 3, 1946.  OF THE PROCEEDINGS ON THAT DAY, THE SUPREME
COURT OF LOUISIANA HAS SAID: 

"...  BETWEEN THE HOURS OF 12:00 O'CLOCK NOON AND 3:00 O'CLOCK P.M.,
WILLIE FRANCIS WAS STRAPPED IN THE ELECTRIC CHAIR AND AN ATTEMPT WAS
MADE TO ELECTROCUTE HIM, BUT, BECAUSE OF SOME DEFECT IN THE APPARATUS
DEVISED AND USED FOR ELECTROCUTIONS, THE CONTRIVANCE FAILED TO
FUNCTION, AND AFTER AN UNSUCCESSFUL ATTEMPT TO ELECTROCUTE FRANCIS HE
WAS REMOVED FROM THE CHAIR." 

OF THE SAME PROCEEDINGS, THE STATE'S BRIEF SAYS: 

"THROUGH A LATENT ELECTRICAL DEFECT, THE ATTEMPT TO ELECTROCUTE
FRANCIS FAILED, THE STATE CONTENDING NO CURRENT WHATSOEVER REACHED
FRANCIS' BODY, THE RELATOR CONTENDING A CURRENT OF ELECTRICITY DID PASS
THROUGH HIS BODY; BUT IN ANY EVENT, WILLIE FRANCIS WAS NOT PUT TO
DEATH." 

ON MAY 8, THE DEATH WARRANT WAS CANCELED, AND THE RELATOR'S EXECUTION
HAS BEEN STAYED PENDING COMPLETION OF THESE PROCEEDINGS.  THE GOVERNOR
PROPOSES TO ISSUE ANOTHER DEATH WARRANT FOR THE RELATOR'S ELECTROCUTION
AND THE RELATOR NOW ASKS THIS COURT TO PREVENT IT FOR THE REASON THAT,
UNDER THE PRESENT UNIQUE CIRCUMSTANCES, HIS ELECTROCUTION WILL BE SO
CRUEL AND UNUSUAL AS TO VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. 

THAT AMENDMENT PROVIDES:  "NOR SHALL ANY STATE DEPRIVE ANY PERSON OF
LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW; ..."  WHEN THIS
WAS ADOPTED IN 1868, THERE LONG HAD BEEN IMBEDDED DEEPLY IN THE
STANDARDS OF THIS NATION A REVULSION AGAINST SUBJECTING GUILTY PERSONS
TO TORTURE CULMINATING IN DEATH.  PRECONSTITUTIONAL AMERICAN HISTORY
REEKED WITH CRUEL PUNISHMENT TO SUCH AN EXTENT THAT, IN 1791, THE
EIGHTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES EXPRESSLY
IMPOSED UPON FEDERAL AGENCIES A MANDATE THAT "EXCESSIVE BAIL SHALL NOT
BE REQUIRED, NOR EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL
PUNISHMENTS INFLICTED."  LOUISIANA AND MANY OTHER STATES HAVE ADOPTED
LIKE CONSTITUTIONAL PROVISIONS.  SEE SECTION 12 OF ARTICLE I OF THE
CONSTITUTION OF LOUISIANA (1921). 

THE CAPITAL CASE BEFORE US PRESENTS AN INSTANCE OF THE VIOLATION OF
CONSTITUTIONAL DUE PROCESS THAT IS MORE CLEAR THAN WOULD BE PRESENTED
BY MANY LESSER PUNISHMENTS PROHIBITED BY THE EIGHTH AMENDMENT OR ITS
STATE COUNTERPARTS.  TAKING HUMAN LIFE BY UNNECESSARILY CRUEL MEANS
SHOCKS THE MOST FUNDAMENTAL INSTINCTS OF CIVILIZED MAN.  IT SHOULD NOT
BE POSSIBLE UNDER THE CONSTITUTIONAL PROCEDURE OF A SELF-GOVERNING
PEOPLE.  ABHORRENCE OF THE CRUELTY OF ANCIENT FORMS OF CAPITAL
PUNISHMENT HAS INCREASED STEADILY UNTIL, TODAY, SOME STATES HAVE
PROHIBITED CAPITAL PUNISHMENT ALTOGETHER.  IT IS UNTHINKABLE THAT ANY
STATE LEGISLATURE IN MODERN TIMES WOULD ENACT A STATUTE EXPRESSLY
AUTHORIZING CAPITAL PUNISHMENT BY REPEATED APPLICATIONS OF AN ELECTRIC
CURRENT SEPARATED BY INTERVALS OF DAYS OR HOURS UNTIL FINALLY DEATH
SHALL RESULT.  THE LEGISLATURE OF LOUISIANA DID NOT DO SO.  THE SUPREME
COURT OF LOUISIANA DID NOT SAY THAT IT DID.  THE SUPREME COURT OF
LOUISIANA SAID MERELY THAT THE PENDING PETITIONS FOR RELIEF IN THIS
CASE PRESENTED AN EXECUTIVE RATHER THAN A JUDICIAL QUESTION AND, BY
THAT MISTAKE OF LAW, IT PRECLUDED ITSELF FROM DISCUSSING THE
CONSTITUTIONAL ISSUE BEFORE US.    IN DETERMINING WHETHER THE PROPOSED
PROCEDURE IS UNCONSTITUTIONAL, WE MUST MEASURE IT AGAINST A LAWFUL
ELECTROCUTION.  THE CONTRAST IS THAT BETWEEN INSTANTANEOUS DEATH AND
DEATH BY INSTALLMENTS - CAUSED BY ELECTRIC SHOCKS ADMINISTERED AFTER
ONE OR MORE INTERVENING PERIODS OF COMPLETE CONSCIOUSNESS OF THE
VICTIM.  ELECTROCUTION, WHEN INSTANTANEOUS, CAN BE INFLICTED BY A STATE
IN CONFORMITY WITH DUE PROCESS OF LAW.  IN RE KEMMLER, 136 U.S. 436. 
THE SUPREME COURT OF LOUISIANA HAS HELD THAT ELECTROCUTION, IN THE
MANNER PRESCRIBED IN ITS STATUTE, IS MORE HUMANE THAN HANGING.  STATE
EX REL. PIERRE V. JONES, 200 LA. 807, 9 SO.2D 42, CERT. DENIED, 317
U.S. 633.  SEE ALSO, MALLOY V. SOUTH CAROLINA, 237 U.S. 180. 

THE ALL-IMPORTANT CONSIDERATION IS THAT THE EXECUTION SHALL BE SO
INSTANTANEOUS AND SUBSTANTIALLY PAINLESS THAT THE PUNISHMENT SHALL BE
REDUCED, AS NEARLY AS POSSIBLE, TO NO MORE THAN THAT OF DEATH ITSELF. 
ELECTROCUTION HAS BEEN APPROVED ONLY IN A FORM THAT ELIMINATES
SUFFERING. 

THE LOUISIANA STATUTE MAKES THIS CLEAR.  IT PROVIDES THAT: 

"EVERY SENTENCE OF DEATH IMPOSED IN THIS STATE SHALL BE BY
ELECTROCUTION; THAT IS, CAUSING TO PASS THROUGH THE BODY OF THE PERSON
CONVICTED A CURRENT OF ELECTRICITY OF SUFFICIENT INTENSITY TO CAUSE
DEATH, AND THE APPLICATION AND CONTINUANCE OF SUCH CURRENT THROUGH THE
BODY OF THE PERSON CONVICTED UNTIL SUCH PERSON IS DEAD...."  LA. CODE
OF CRIMINAL PROCEDURE (1928), ACT NO. 2, ART. 569, AS AMENDED BY SEC.
1, ACT NO. 14, 1940. 

IT DOES NOT PROVIDE FOR ELECTROCUTION BY INTERRUPTED OR REPEATED
APPLICATIONS OF ELECTRIC CURRENT AT INTERVALS OF SEVERAL DAYS OR EVEN
MINUTES.  IT DOES NOT PROVIDE FOR THE APPLICATION OF ELECTRIC CURRENT
OF AN INTENSITY LESS THAN THAT SUFFICIENT TO CAUSE DEATH.  IT
PRESCRIBES EXPRESSLY AND SOLELY FOR THE APPLICATION OF A CURRENT OF
SUFFICIENT INTENSITY TO CAUSE DEATH AND FOR THE CONTINUANCE OF THAT
APPLICATION UNTIL DEATH RESULTS.  PRESCRIBING CAPITAL PUNISHMENT, IT
SHOULD BE CONSTRUED STRICTLY.  THERE CAN BE NO IMPLIED PROVISION FOR A
SECOND, THIRD OR MULTIPLE APPLICATION OF THE CURRENT.  THERE IS NO
STATUTORY OR JUDICIAL PRECEDENT UPHOLDING A DELAYED PROCESS OF
ELECTROCUTION. 

THESE CONSIDERATIONS WERE EMPHASIZED IN IN RE KEMMLER, SUPRA, WHEN AN
EARLY NEW YORK STATUTE AUTHORIZING ELECTROCUTION WAS ATTACKED AS
VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE
PRESCRIBING A CRUEL AND UNUSUAL PUNISHMENT.  IN UPHOLDING THAT STATUTE,
THIS COURT STRESSED THE FACT THAT THE ELECTRIC CURRENT WAS TO CAUSE
INSTANTANEOUS DEATH.  LIKE THE LOUISIANA STATUTE BEFORE US, THAT
STATUTE CALLED EXPRESSLY FOR THE CONTINUED APPLICATION OF A SUFFICIENT
ELECTRIC CURRENT TO CAUSE DEATH.  IT WAS THE RESULTING "INSTANTANEOUS"
AND "PAINLESS" DEATH THAT WAS REFERRED TO AS "HUMANE." 

AFTER QUOTING THE NEW YORK COUNTY AND SUPREME COURTS, THIS COURT
QUOTED THE NEW YORK COURT OF APPEALS, AT 119 N.Y. 579, AS FOLLOWS: 

"'WE HAVE EXAMINED THIS TESTIMONY AND CAN FIND BUT LITTLE IN IT TO
WARRANT THE BELIEF THAT THIS NEW MODE OF EXECUTION IS CRUEL, WITHIN THE
MEANING OF THE CONSTITUTION, THOUGH IT IS CERTAINLY UNUSUAL.  ON THE
CONTRARY, WE AGREE WITH THE COURT BELOW THAT IT REMOVES EVERY
REASONABLE DOUBT THAT THE APPLICATION OF ELECTRICITY TO THE VITAL PARTS
OF THE HUMAN BODY, UNDER SUCH CONDITIONS AND IN THE MANNER CONTEMPLATED
BY THE STATUTE, MUST RESULT IN INSTANTANEOUS, AND CONSEQUENTLY IN
PAINLESS, DEATH.'"  IN RE KEMMLER, SUPRA, AT 443-444. 

FINALLY, SPEAKING FOR ITSELF, THIS COURT SAID: 

"PUNISHMENTS ARE CRUEL WHEN THEY INVOLVE TORTURE OR A LINGERING
DEATH; BUT THE PUNISHMENT OF DEATH IS NOT CRUEL, WITHIN THE MEANING OF
THAT WORD AS USED IN THE CONSTITUTION.  IT IMPLIES THERE SOMETHING
INHUMAN AND BARBAROUS, SOMETHING MORE THAN THE MERE EXTINGUISHMENT OF
LIFE."  ID. AT 447. 

IF THE STATE OFFICIALS DELIBERATELY AND INTENTIONALLY HAD PLACED THE
RELATOR IN THE ELECTRIC CHAIR FIVE TIMES AND, EACH TIME, HAD APPLIED
ELECTRIC CURRENT TO HIS BODY IN A MANNER NOT SUFFICIENT, UNTIL THE
FINAL TIME, TO KILL HIM, SUCH A FORM OF TORTURE WOULD RIVAL THAT OF
BURNING AT THE STAKE.  ALTHOUGH THE FAILURE OF THE FIRST ATTEMPT, IN
THE PRESENT CASE, WAS UNINTENDED, THE REAPPLICATION OF THE ELECTRIC
CURRENT WILL BE INTENTIONAL.  HOW MANY DELIBERATE AND INTENTIONAL
REAPPLICATIONS OF ELECTRIC CURRENT DOES IT TAKE TO PRODUCE A CRUEL,
UNUSUAL AND UNCONSTITUTIONAL PUNISHMENT?  WHILE FIVE APPLICATIONS WOULD
BE MORE CRUEL AND UNUSUAL THAN ONE, THE UNIQUENESS OF THE PRESENT CASE
DEMONSTRATES THAT, TODAY, TWO SEPARATED APPLICATIONS ARE SUFFICIENTLY
"CRUEL AND UNUSUAL" TO BE PROHIBITED.  IF FIVE ATTEMPTS WOULD BE "CRUEL
AND UNUSUAL," IT WOULD BE DIFFICULT TO DRAW THE LINE BETWEEN TWO,
THREE, FOUR AND FIVE.  IT IS NOT DIFFICULT, HOWEVER, AS WE HERE
CONTEND, TO DRAW THE LINE BETWEEN THE ONE CONTINUOUS APPLICATION
PRESCRIBED BY STATUTE AND ANY OTHER APPLICATION OF THE CURRENT. 

LACK OF INTENT THAT THE FIRST APPLICATION BE LESS THAN FATAL IS NOT
MATERIAL.  THE INTENT OF THE EXECUTIONER CANNOT LESSEN THE TORTURE OR
EXCUSE THE RESULT.  IT WAS THE STATUTORY DUTY OF THE STATE OFFICIALS TO
MAKE SURE THAT THERE WAS NO FAILURE.  THE PROCEDURE IN THIS CASE
CONTRASTS WITH COMMON KNOWLEDGE OF PRECAUTIONS GENERALLY TAKEN
ELSEWHERE TO INSURE AGAINST FAILURE OF ELECTROCUTIONS.  THE HIGH
STANDARD OF CARE GENERALLY TAKEN EVIDENCES THE SIGNIFICANCE PROPERLY
ATTACHED TO THE UNCONDITIONAL REQUIREMENT OF A SINGLE CONTINUED
APPLICATION OF THE CURRENT UNTIL DEATH RESULTS.  IN OUR VIEW OF THIS
CASE, WE ARE GIVING CAREFUL RECOGNITION TO THE LAW OF LOUISIANA. 
NEITHER THE LEGISLATURE NOR THE SUPREME COURT OF LOUISIANA HAS
EXPRESSED APPROVAL OF ELECTROCUTION OTHER THAN BY ONE CONTINUOUS
APPLICATION OF A LETHAL CURRENT. 

EXECUTIVE CLEMENCY PROVIDES A COMMON MEANS OF AVOIDING
UNCONSTITUTIONAL OR OTHERWISE QUESTIONABLE EXECUTIONS.  WHEN, HOWEVER,
THE UNCONSTITUTIONALITY OF PROPOSED EXECUTIVE PROCEDURE IS BROUGHT
BEFORE THIS COURT, AS IN THIS CASE, WE SHOULD APPLY THE CONSTITUTIONAL
PROTECTION.  IN THIS CASE, FINAL RECOURSE IS HAD TO THE HIGH
TRUSTEESHIP VESTED IN THIS COURT BY THE PEOPLE OF THE UNITED STATES
OVER THE CONSTITUTIONAL PROCESS BY WHICH THEIR OWN LIVES MAY BE TAKEN. 

IN DETERMINING WHETHER A CASE OF CRUEL AND UNUSUAL PUNISHMENT
CONSTITUTES A VIOLATION OF DUE PROCESS OF LAW, EACH CASE MUST TURN UPON
ITS PARTICULAR FACTS.  THE RECORD IN THIS CASE IS NOT LIMITED TO AN
INSTANCE WHERE A PRISONER WAS PLACED IN THE ELECTRIC CHAIR AND RELEASED
BEFORE BEING SUBJECTED TO THE ELECTRIC CURRENT.  IT PRESENTS MORE THAN
A CASE OF MENTAL ANGUISH, HOWEVER SEVERE SUCH A CASE MIGHT BE.  THE
PETITION TO THE SUPREME COURT OF LOUISIANA EXPRESSLY STATES THAT A
CURRENT OF ELECTRICITY WAS CAUSED TO PASS THROUGH THE BODY OF THE
RELATOR.  THIS ALLEGATION WAS DENIED IN THE ANSWER AND NO EVIDENCE WAS
PRESENTED BY EITHER SIDE.  THE SUPREME COURT OF LOUISIANA THEREUPON
UNDERTOOK TO DECIDE THE CASE ON THE PLEADINGS.  IT SAID: 

"OUR CONCLUSION IS THAT THE COMPLAINT MADE BY THE RELATOR IS A MATTER
OVER WHICH THE COURTS HAVE NO AUTHORITY.  INASMUCH AS THE PROCEEDINGS
HAD IN THE DISTRICT COURT, UP TO AND INCLUDING THE PRONOUNCING OF THE
SENTENCE OF DEATH, WERE ENTIRELY REGULAR, WE HAVE NO AUTHORITY TO SET
ASIDE THE SENTENCE AND RELEASE THE RELATOR FROM THE SHERIFF'S
CUSTODY."  FN1 

THIS STATEMENT ASSUMED THAT THE RELIEF SOUGHT IN THE SUPREME COURT OF
LOUISIANA WAS ONLY A REVIEW OF THE JUDICIAL PROCEEDINGS IN THE LOWER
STATE COURTS PRIOR TO THE PASSING OF SENTENCE UPON THE RELATOR ON
SEPTEMBER 14, 1945.  ON THE CONTRARY, THE ISSUE RAISED THERE AND HERE
PRIMARILY CONCERNS THE ACTION OF STATE OFFICIALS ON AND AFTER MAY 3,
1946, IN CONNECTION WITH THEIR PAST AND PROPOSED ATTEMPTS TO
ELECTROCUTE THE RELATOR.  THIS ISSUE PROPERLY PRESENTS A FEDERAL
CONSTITUTIONAL QUESTION BASED ON THE IMPENDING DEPRIVATION OF THE LIFE
OF THE RELATOR BY EXECUTIVE OFFICIALS OF THE STATE OF LOUISIANA IN A
MANNER ALLEGED TO BE A VIOLATION OF THE DUE PROCESS OF LAW GUARANTEED
BY THE FOURTEENTH AMENDMENT.  THE REFUSAL OF THE WRITS NECESSARILY
DENIED THE CONSTITUTIONAL PROTECTION PRAYED FOR.  IN RULING AGAINST THE
RELATOR ON THE PLEADINGS, IN THE ABSENCE OF FURTHER EVIDENCE, THE
SUPREME COURT OF LOUISIANA MUST BE TAKEN TO HAVE ACTED UPON THE
ALLEGATIONS OF FACT MOST FAVORABLE TO THE RELATOR.  THE PETITION
CONTAINS THE UNEQUIVOCAL ALLEGATION THAT THE OFFICIAL ELECTROCUTIONER
"TURNED ON THE SWITCH AND A CURRENT OF ELECTRICITY WAS CAUSED TO PASS
THROUGH THE BODY OF RELATOR, ALL IN THE PRESENCE OF THE OFFICIAL
WITNESSES."  THIS ALLEGATION MUST BE READ IN THE LIGHT OF THE LOUISIANA
STATUTE WHICH AUTHORIZED THE ELECTROCUTIONER TO APPLY TO THE BODY OF
THE RELATOR ONLY SUCH AN ELECTRIC CURRENT AS WAS OF "SUFFICIENT
INTENSITY TO CAUSE DEATH."  ON THAT RECORD, DENIAL OF RELIEF MEANS THAT
THE PROPOSED REPEATED, AND AT LEAST SECOND, APPLICATION TO THE RELATOR
OF AN ELECTRIC CURRENT SUFFICIENT TO CAUSE DEATH IS NOT, UNDER PRESENT
CIRCUMSTANCES, A CRUEL AND UNUSUAL PUNISHMENT VIOLATIVE OF DUE PROCESS
OF LAW.  IT EXCEEDS ANY PUNISHMENT PRESCRIBED BY LAW.  THERE IS NO
PRECEDENT FOR IT.  WHAT THEN IS IT, IF IT BE NOT CRUEL, UNUSUAL AND
UNLAWFUL?  IN SPITE OF THE CONSTITUTIONAL ISSUE THUS RAISED, THE
SUPREME COURT OF LOUISIANA TREATED IT AS AN EXECUTIVE QUESTION NOT
SUBJECT TO JUDICIAL REVIEW.  WE BELIEVE THAT IF THE FACTS ARE AS
ALLEGED BY THE RELATOR THE PROPOSED ACTION IS UNCONSTITUTIONAL.  WE
BELIEVE ALSO THAT THE SUPREME COURT OF LOUISIANA SHOULD PROVIDE FOR THE
DETERMINATION OF THE FACTS AND THEN PROCEED IN A MANNER NOT
INCONSISTENT WITH THIS OPINION. 

THAT COUNSEL FOR BOTH SIDES RECOGNIZE THE MATERIALITY OF WHAT
OCCURRED ON MAY 3, 1946, IS DEMONSTRATED BY THE AFFIDAVITS AND THE
TRANSCRIPT OF TESTIMONY WHICH THEY TOOK FROM AVAILABLE PUBLIC RECORDS
AND CALLED TO THE ATTENTION OF THIS COURT BY PUBLICATION OF THEM IN
CONNECTION WITH THEIR RESPECTIVE BRIEFS IN THIS COURT.  EXCERPTS FROM
THOSE PUBLIC RECORDS, PRINTED IN THE MARGIN, INDICATE THE CONFLICT OF
TESTIMONY WHICH SHOULD BE RESOLVED.  FN2 

THE REMAND OF THIS CAUSE TO THE SUPREME COURT OF LOUISIANA IN THE
MANNER INDICATED WOULD NOT MEAN THAT THE RELATOR NECESSARILY IS
ENTITLED TO A COMPLETE RELEASE.  IT WOULD MEAN MERELY THAT THE COURTS
OF LOUISIANA MUST EXAMINE THE FACTS, BOTH AS TO THE ACTUAL NATURE OF
THE PUNISHMENT ALREADY INFLICTED AND THAT PROPOSED TO BE INFLICTED AND,
IF THE PROPOSED PUNISHMENT AMOUNTS TO A VIOLATION OF DUE PROCESS OF LAW
UNDER THE CONSTITUTION OF THE UNITED STATES, THEN THE STATE MUST FIND
SOME MEANS OF DISPOSING OF THIS CASE THAT WILL NOT VIOLATE THAT
CONSTITUTION. 

FOR THE REASONS STATED, WE ARE UNABLE TO CONCUR IN THE JUDGMENT OF
THIS COURT WHICH AFFIRMS THE JUDGMENT BELOW. 

FN1  THAT COURT, IN DISCUSSING THE PLEADINGS, ALSO SAID: 

"IN THIS LATTER ANSWER OR OPPOSITION IT IS ADMITTED THAT THE ATTEMPT
WAS MADE TO ELECTROCUTE WILLIE FRANCIS ON MAY 3, 1946, IN OBEDIENCE OF
THE DEATH WARRANT, BUT IT IS AVERRED THAT THROUGH SOME LATENT
ELECTRICAL DEFECT IN THE APPARATUS, NO ELECTRIC CURRENT REACHED THE
BODY OF WILLIE FRANCIS AND FOR THAT REASON THE SENTENCE OF DEATH WAS
NOT CARRIED OUT.  WE HAVE NO OTHER EVIDENCE, OF COURSE, AS TO WHETHER
AN ELECTRIC CURRENT DID REACH THE BODY OF WILLIE FRANCIS.  THE
IMPORTANT FACT, HOWEVER, IS THAT A CURRENT OF SUFFICIENT INTENSITY TO
CAUSE DEATH, AS REQUIRED BY THE STATUTE ON THE SUBJECT, AND BY THE
DEATH WARRANT, DID NOT PASS THROUGH THE BODY OF WILLIE FRANCIS." 

THIS MEANS THAT, AS LONG AS THE RELATOR DID NOT DIE, THE COURT
APPARENTLY REGARDED THE CARRYING OUT OF THE DEATH SENTENCE AS A PURELY
EXECUTIVE FUNCTION NOT SUBJECT TO JUDICIAL REVIEW. 

FN2  THE FOLLOWING EXCERPTS ARE FROM COPIES OF AFFIDAVITS PRINTED AS
APPENDICES TO THE BRIEF ON BEHALF OF THE PETITIONER.  THE OFFICIAL
WITNESSES NAMED WERE PERSONS CHARGED BY STATUTE WITH THE DUTY OF MAKING
A SIGNED REPORT OR "PROCES VERBAL" RECITING THE MANNER AND DATE OF THE
EXECUTION TO BE FILED WITH THE CLERK OF THE COURT IN WHICH THE SENTENCE
WAS IMPOSED.  LA. CODE OF CRIMINAL PROCEDURE (1928), ACT NO. 2, ART.
571.  THE STATEMENTS REFER TO WHAT HAPPENED AFTER THE RELATOR HAD BEEN
STRAPPED INTO THE ELECTRIC CHAIR AND A HOOD PLACED BEFORE HIS EYES. 

"THEN THE ELECTROCUTIONER TURNED ON THE SWITCH AND WHEN HE DID WILLIE
FRANCIS' LIPS PUFFED OUT AND HE GROANED AND JUMPED SO THAT THE CHAIR
CAME OFF THE FLOOR.  APPARENTLY THE SWITCH WAS TURNED ON TWICE AND THEN
THE CONDEMNED MAN YELLED:  'TAKE IT OFF.  LET ME BREATH.'"  AFFIDAVIT
OF OFFICIAL WITNESS HAROLD RESWEBER, DATED MAY 23, 1946. 

"I SAW THE ELECTROCUTIONER TURN ON THE SWITCH AND I SAW HIS LIPS PUFF
OUT AND SWELL, HIS BODY TENSED AND STRETCHED.  I HEARD THE ONE IN
CHARGE YELL TO THE MAN OUTSIDE FOR MORE JUICE WHEN HE SAW THAT WILLIE
FRANCIS WAS NOT DYING AND THE ONE ON THE OUTSIDE YELLED BACK HE WAS
GIVING HIM ALL HE HAD.  THEN WILLIE FRANCIS CRIED OUT 'TAKE IT OFF. 
LET ME BREATH.'  THEN THEY TOOK THE HOOD FROM HIS EYES AND UNSTRAPPED
HIM. 

     .         .         .         .   . 

"THIS BOY REALLY GOT A SHOCK WHEN THEY TURNED THAT MACHINE ON." 
AFFIDAVIT OF OFFICIAL WITNESS IGNACE DOUCET, DATED MAY 30, 1946. 

"AFTER HE WAS STRAPPED TO THE CHAIR THE SHERIFF OF ST. MARTIN PARISH
ASKED HIM IF HE HAD ANYTHING TO SAY ABOUT ANYTHING AND HE SAID
NOTHING.  THEN THE HOOD WAS PLACED BEFORE HIS EYES.  THEN THE OFFICIALS
IN CHARGE OF THE ELECTROCUTION WERE ADJUSTING THE MECHANISMS AND WHEN
THE NEEDLE OF THE METER REGISTERED TO A CERTAIN POINT ON THE DIAL, THE
ELECTROCUTIONER PULLED DOWN ON THE SWITCH AND AT THE SAME TIME SAID:
'GOODBY WILLIE.'  AT THAT VERY MOMENT, WILLIE FRANCIS' LIPS PUFFED OUT
AND HIS BODY SQUIRMED AND TENSED AND HE JUMPED SO THAT THE CHAIR ROCKED
ON THE FLOOR.  THEN THE CONDEMNED MAN SAID:  'TAKE IT OFF.  LET ME
BREATH.'  THEN THE SWITCH WAS TURNED OFF.  THEN SOME OF THE MEN LEFT
AND A FEW MINUTES AFTER THE SHERIFF OF ST. MARTIN PARISH, MR. E.L.
RESWEBER, CAME IN AND ANNOUNCED THAT THE GOVERNOR HAD GRANTED THE
CONDEMNED MAN A REPRIEVE."  AFFIDAVIT OF OFFICIAL CHAPLAIN REVEREND
MAURICE L. ROUSSEVE, DATED MAY 25, 1946.    ATTACHED TO THE BRIEF ON
BEHALF OF THE RESPONDENTS THERE WAS SUBMITTED A COPY OF THE TRANSCRIPT
OF TESTIMONY TAKEN BEFORE THE LOUISIANA PARDON BOARD ON MAY 31, 1946,
IN SUPPORT OF THE RELATOR'S APPLICATION FOR EXECUTIVE CLEMENCY WHICH
WAS DENIED JUNE 1, 1946.  THIS TRANSCRIPT INCLUDES TESTIMONY OF THOSE
WHO WERE IN CHARGE OF THE ELECTRICAL EQUIPMENT ON MAY 3, TO THE EFFECT
THAT NO ELECTRIC CURRENT REACHED THE BODY OF THE RELATOR AND THAT HIS
FLESH DID NOT SHOW ELECTRICAL BURNS.  IT ALSO INCLUDED A STATEMENT BY
THE SHERIFF OF A NEIGHBORING PARISH, WHO ACCOMPANIED THE RELATOR FROM
THE CHAIR, THAT THE RELATOR TOLD HIM ON LEAVING THE CHAIR THAT THE
ELECTRIC CURRENT HAD "TICKLED HIM." 

THESE PUBLIC RECORDS WERE NOT IN EXISTENCE AND THEREFORE NOT BEFORE
THE SUPREME COURT OF LOUISIANA WHEN IT RENDERED ITS DECISION ON MAY 15,
1946. 
..END :











ANDERSON V. YUNGKAU, 329 U.S. 482 


NO. 87.  ARGUED DECEMBER 19, 20, 1946.  - DECIDED JANUARY 13, 1947.  -
153 F.2D 685, AFFIRMED. 


RULE 25(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDES THAT "IF A
PARTY DIES AND THE CLAIM IS NOT THEREBY EXTINGUISHED, THE COURT WITHIN
2 YEARS AFTER THE DEATH MAY ORDER SUBSTITUTION OF THE PROPER PARTIES. 
IF SUBSTITUTION IS NOT SO MADE, THE ACTION SHALL BE DISMISSED AS TO THE
DECEASED PARTY."  HELD:  MORE THAN TWO YEARS AFTER THE DEATHS OF
DEFENDANTS, ACTIONS MAY NOT BE REVIVED AND THEIR REPRESENTATIVES
SUBSTITUTED; AND THE ACTIONS SHOULD BE DISMISSED - EVEN THOUGH THE
FAILURE TO ACT WITHIN THE SPECIFIED PERIOD WAS THE RESULT OF "EXCUSABLE
NEGLECT" WITHIN THE MEANING OF RULE 6(B).  PP. 484-486. 

ANDERSON, RECEIVER, V. YUNGKAU, EXECUTOR, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE DISTRICT COURT DENIED MOTIONS TO REVIVE CERTAIN ACTIONS AGAINST
CERTAIN PARTIES AND SUBSTITUTE THEIR LEGAL REPRESENTATIVES MORE THAN
TWO YEARS AFTER THE DEATHS OF THE ORIGINAL PARTIES, AND DISMISSED THE
ACTIONS UNDER RULE 25(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  1
F.R.D. 589.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  153 F.2D 685. 
AFFIRMED, P. 486. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE ARE SEVEN CASES IN WHICH PETITIONER SUED TO RECOVER STOCK
ASSESSMENTS FROM SHAREHOLDERS OF THE BANCO KENTUCKY CO. THEY WERE
STARTED IN 1936 IN THE EASTERN DISTRICT OF KENTUCKY AND WERE STAYED BY
AGREEMENT WHILE THE PRINCIPAL CASE UPON WHICH THESE DEPENDED, ANDERSON
V. ABBOTT, 321 U.S. 349, WENDED ITS WAY THROUGH THE COURTS.  IN THE
LATTER CASE WE SUSTAINED THE LIABILITY OF THE SHAREHOLDERS OF BANCO FOR
THE STOCK ASSESSMENT.  THAT WAS IN 1944.  DURING THE TIME ANDERSON V.
ABBOTT WAS BEING LITIGATED, THE SHAREHOLDERS INVOLVED IN THE PRESENT
LITIGATION DIED AND RESPONDENTS BECAME EXECUTORS OF THEIR ESTATES. 
THROUGH NO LACK OF DILIGENCE,  FN1  PETITIONER FAILED TO LEARN OF THESE
FACTS UNTIL MORE THAN TWO YEARS LATER.  UPON LEARNING OF THEM HE
PROMPTLY MOVED TO REVIVE THE ACTIONS AGAINST THE REPRESENTATIVES OF THE
DECEDENTS.  THE DISTRICT COURT, FOLLOWING ANDERSON V. BRADY, 1 F.R.D.
589, DENIED THE MOTIONS FOR REVIVOR AND GRANTED MOTIONS OF THE
EXECUTORS TO DISMISS.  THE CIRCUIT COURT OF APPEALS AFFIRMED BY A
DIVIDED VOTE.  153 F.2D 685.  THE CASE IS HERE ON A PETITION FOR A WRIT
OF CERTIORARI WHICH WE GRANTED BECAUSE THE CASE PRESENTED AN IMPORTANT
PROBLEM IN THE CONSTRUCTION OF THE RULES OF CIVIL PROCEDURE.  FN2 

THE CASE INVOLVES A RECONCILIATION OF RULE 25(A) AND RULE 6(B).  SO
FAR AS MATERIAL HERE, RULE 25(A) PROVIDES: 

"IF A PARTY DIES AND THE CLAIM IS NOT THEREBY EXTINGUISHED, THE COURT
WITHIN 2 YEARS AFTER THE DEATH MAY ORDER SUBSTITUTION OF THE PROPER
PARTIES.  IF SUBSTITUTION IS NOT SO MADE, THE ACTION SHALL BE DISMISSED
AS TO THE DECEASED PARTY." 

AND THE RELEVANT PART OF RULE 6(B) READS: 

"WHEN BY THESE RULES OR BY A NOTICE GIVEN THEREUNDER OR BY ORDER OF
COURT AN ACT IS REQUIRED OR ALLOWED TO BE DONE AT OR WITHIN A SPECIFIED
TIME, THE COURT FOR CAUSE SHOWN MAY, AT ANY TIME IN ITS DISCRETION  ...
(2) UPON MOTION PERMIT THE ACT TO BE DONE AFTER THE EXPIRATION OF THE
SPECIFIED PERIOD WHERE THE FAILURE TO ACT WAS THE RESULT OF EXCUSABLE
NEGLECT; BUT IT MAY NOT ENLARGE THE PERIOD FOR TAKING ANY ACTION UNDER
RULE 59, EXCEPT AS STATED IN SUBDIVISION (C) THEREOF, OR THE PERIOD FOR
TAKING AN APPEAL AS PROVIDED BY LAW." 

IT IS SAID THAT SINCE BY RULE 25(A) SUBSTITUTION MAY BE MADE WITHIN
TWO YEARS AFTER THE DEATH OF A PARTY, SUBSTITUTION IS, WITHIN THE
MEANING OF RULE 6(B), AN ACT "ALLOWED" TO BE DONE "WITHIN A SPECIFIED
TIME" WHICH THE COURT MAY ON A SHOWING OF "EXCUSABLE NEGLECT" PERMIT TO
BE DONE AFTER THE TWO-YEAR PERIOD.  THAT ARGUMENT IS REINFORCED BY
RELIANCE ON THE PROVISION IN RULE 6(B) WHICH GRANTS BUT TWO EXCEPTIONS
TO THE POWER OF ENLARGEMENT OF TIME.  SINCE RULE 25(A) IS NOT INCLUDED
IN THE EXCEPTIONS, IT IS ARGUED THAT THE TIME ALLOWED BY THAT RULE MAY
BE ENLARGED UNDER RULE 6(B).  AND IT IS POINTED OUT THAT THE FACTS OF
THE PRESENT CASES ESTABLISH THAT THE FAILURE OF THE RECEIVER TO ACT
WITHIN THE TWO-YEAR PERIOD WAS THE RESULT OF "EXCUSABLE NEGLECT,"  FN3
THUS GIVING THE DISTRICT COURT DISCRETION TO ALLOW THE SUBSTITUTION
UNDER RULE 6(B). 

WE AGREE, HOWEVER, WITH THE CIRCUIT COURT OF APPEALS.  RULE 25(A) IS
BASED IN PART ON 28 U.S.C. SEC. 778, 42 STAT. 352, WHICH LIMITED THE
POWER OF SUBSTITUTION TO TWO YEARS FROM THE DEATH OF A PARTY.  FN4  AND
EVEN WITHIN THAT TWO-YEAR PERIOD SUBSTITUTION COULD NOT BE MADE UNLESS
THE EXECUTOR OR ADMINISTRATOR WAS SERVED "BEFORE FINAL SETTLEMENT AND
DISTRIBUTION OF THE ESTATE."  THAT STATUTE, LIKE OTHER STATUTES OF
LIMITATIONS, WAS A STATUTE OF REPOSE.  IT WAS DESIGNED TO KEEP SHORT
THE TIME WITHIN WHICH ACTIONS MIGHT BE REVIVED SO THAT THE CLOSING AND
DISTRIBUTION OF ESTATES MIGHT NOT BE INTERMINABLY DELAYED.  FN5  THAT
POLICY IS REFLECTED IN RULE 25(A).  EVEN WITHIN THE TWO-YEAR PERIOD
SUBSTITUTION IS NOT A MATTER OF RIGHT; THE COURT "MAY" ORDER
SUBSTITUTION BUT IT IS UNDER NO DUTY TO DO SO.  UNDER THE RULE, AS
UNDER THE STATUTE, THE SETTLEMENT AND DISTRIBUTION OF THE ESTATE MIGHT
BE SO FAR ADVANCED AS TO WARRANT A DENIAL OF THE MOTION FOR
SUBSTITUTION WITHIN THE TWO-YEAR PERIOD.  IN CONTRAST TO THE DISCRETION
OF THE COURT TO ORDER SUBSTITUTION WITHIN THE TWO-YEAR PERIOD IS THE
PROVISION OF RULE 25(A) THAT IF SUBSTITUTION IS NOT MADE WITHIN THAT
TIME THE ACTION "SHALL BE DISMISSED" AS TO THE DECEASED.  THE WORD
"SHALL" IS ORDINARILY "THE LANGUAGE OF COMMAND."  ESCOE V. ZERBST, 295
U.S. 490, 493.  AND WHEN THE SAME RULE USES BOTH "MAY" AND "SHALL," THE
NORMAL INFERENCE IS THAT EACH IS USED IN ITS USUAL SENSE - THE ONE ACT
BEING PERMISSIVE, THE OTHER MANDATORY.  SEE UNITED STATES V. THOMAN,
156 U.S. 353, 360. 

THUS, AS STATED BY THE CIRCUIT COURT OF APPEALS, RULE 25(A) OPERATES
BOTH AS A STATUTE OF LIMITATIONS UPON REVIVOR AND AS A MANDATE TO THE
COURT TO DISMISS AN ACTION NOT REVIVED WITHIN THE TWO-YEAR PERIOD. 
RULE 6(B) RELATES TO ACTS REQUIRED OR ALLOWED TO BE DONE BY PARTIES TO
AN ACTION AND PERMITS THE COURT TO AFFORD RELIEF TO A PARTY FOR HIS
FAILURE TO ACT WITHIN THE PRESCRIBED TIME LIMITS.  THERE WOULD BE MORE
FORCE IN PETITIONER'S ARGUMENT IF RULE 25(A) HAD, WITHOUT MORE, SET A
TWO-YEAR PERIOD WITHIN WHICH SUBSTITUTION MIGHT BE MADE.  BUT RULE
25(A) DOES NOT STOP THERE.  IT DIRECTS THE COURT TO DISMISS THE ACTION
IF SUBSTITUTION HAS NOT BEEN MADE WITHIN THAT TIME.  THAT IS ACTION
REQUIRED OF THE COURT, NOT OF A PARTY.  AND RULE 6(B) SHOULD NOT BE
CONSTRUED TO OVERRIDE AN EXPRESS DIRECTION OF ACTION TO BE TAKEN BY THE
COURT.  SEE WALLACE V. UNITED STATES, 142 F.2D 240, 244. 

REASONS OF POLICY SUPPORT THIS CONSTRUCTION.  IT IS, TO BE SURE,
STIPULATED THAT IN FIVE OF THE PRESENT CASES THE ESTATE IS "STILL OPEN
AND UNDISTRIBUTED"; IN ONE IT IS "STILL OPEN"; IN ANOTHER IT HAS BEEN
DISTRIBUTED.  AT LEAST WHERE AN ESTATE IS READY TO BE CLOSED OR WHERE
THERE HAS ALREADY BEEN A DISTRIBUTION, REVIVOR MAY WORK UNFAIRNESS AND
BE DISRUPTIVE OF ORDERLY AND EXPEDITIOUS ADMINISTRATION OF ESTATES. 
BUT IT IS NOT ENOUGH TO SAY THAT IF RULE 6(B) AND RULE 25(A) ARE
CONSTRUED TO PERMIT SUBSTITUTION AFTER THE TWO-YEAR PERIOD, THE COURT
NEED NOT ALLOW IT WHERE UNFAIRNESS OR PREJUDICE WOULD RESULT.  FOR THE
NORMAL POLICY OF A STATUTE OF LIMITATIONS IS TO CLOSE THE DOOR -
FINALLY, NOT QUALIFIEDLY OR CONDITIONALLY.  THE FEDERAL LAW EMBODIED IN
RULE 25(A) HAS A DIRECT IMPACT ON THE PROBATE OF ESTATES IN THE STATE
COURTS.  IT SHOULD NOT BE CONSTRUED TO BE MORE DISRUPTIVE OF PROMPT AND
ORDERLY PROBATE ADMINISTRATION IN THOSE COURTS THAN ITS LANGUAGE MAKES
NECESSARY.  AFFIRMED. 

FN1  PETITIONER BROUGHT ACTIONS AGAINST APPROXIMATELY 5,000
SHAREHOLDERS SCATTERED THROUGHOUT THE UNITED STATES AND SOME IN FOREIGN
COUNTRIES.  DURING THE PROGRESS OF THE LITIGATION SOME CHANGED THEIR
RESIDENCES.  AND IT WAS STIPULATED THAT PETITIONER, WITH A LIMITED
STAFF, COULD NOT DURING THIS TIME KEEP UP WITH THE CHANGES OF RESIDENCE
OR DEATHS OF DEFENDANTS. 

FN2  CF. AINSWORTH V. GILL GLASS & FIXTURE CO., 104 F.2D 83, WITH
BURKE V. CANFIELD, 72 APP. D.C. 127, 111 F.2D 526, AND MUTUAL BENEFIT
HEALTH & ACCIDENT ASSN. V. SNYDER, 109 F.2D 469. 

FN3  SEE NOTE 1, SUPRA. 

FN4  BUT SEE BALTIMORE & OHIO R. CO. V. JOY, 173 U.S. 226; WINSLOW V.
DOMESTIC ENGINEERING CO., 20 F.SUPP.  578. 

FN5  AND SEE H. REP. NO. 429, 67TH CONG., 1ST SESS., P. 2. 

THE CHIEF JUSTICE AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

RULE 25(A) PROVIDES: 

"IF A PARTY DIES AND THE CLAIM IS NOT THEREBY EXTINGUISHED, THE COURT
WITHIN 2 YEARS AFTER THE DEATH MAY ORDER SUBSTITUTION OF THE PROPER
PARTIES.  IF SUBSTITUTION IS NOT SO MADE, THE ACTION SHALL BE DISMISSED
AS TO THE DECEASED PARTY...." 

I AGREE THAT THE RULE CONFERS DISCRETION TO ORDER SUBSTITUTION OF
PARTIES, HENCE IN APPROPRIATE CIRCUMSTANCES TO REFUSE TO DO SO AND
THEREUPON TO DISMISS THE ACTION.  BUT I DO NOT THINK THE DISCRETION
ENDS WITH THE TWO-YEAR PERIOD.  FN1  THE RULE IS NOT WORDED TO REQUIRE
THIS AND ASCRIBING SUCH A CONSTRUCTION TO IT BRINGS IT INTO COLLISION
WITH THE EXPRESS TERMS AND THE POLICY OF RULE 6(B).  THE DIFFERENCE
MADE BY EXPIRATION OF THE PERIOD IS NOT TO CONVERT THE RULE'S COMMAND
FOR DISMISSAL FROM A DISCRETIONARY TO A MANDATORY ONE.  IT IS MERELY TO
NARROW THE CONDITIONS UNDER WHICH THE DISCRETIONARY POWER SHALL BE
EXERCISED.  FN2 

I FIND NO BASIS FOR THINKING THAT THE TIME LIMITATION PRESCRIBED BY
THE FIRST SENTENCE OF RULE 25(A) WAS INTENDED TO BE TREATED DIFFERENTLY
THAN ANY OTHER PRESCRIBED BY THE RULES, EXCEPT THOSE CONCERNING WHICH
THEY EXPRESSLY FORBID ENLARGEMENT.  THE COMMITTEE WHICH DRAFTED THE
RULES WAS HIGHLY COMPETENT, SPENT YEARS IN EXACTING PREPARATION, AND
WAS THOROUGHLY COGNIZANT OF WHAT IT INTENDED TO PROPOSE CONCERNING TIME
LIMITATIONS.  METICULOUS ATTENTION WAS GIVEN TO THEM.  BY COUNT THE
INDEX SHOWS 134 REFERENCES TO PROVISIONS RELATING TO TIME FOR TAKING
VARIOUS ACTIONS. 

THE COMMITTEE KNEW THEIR VOLUME AND VARIETY.  IT WAS CONSCIOUS ALSO
OF THE MANY DIFFICULTIES AND INJUSTICES WHICH HAD ARISEN BY VIRTUE OF
RIGID TIME LIMITATIONS, WHETHER LAID BY STATUTE, RULE OF COURT, OR
JUDICIAL DECISION.  FN3  THE DELIBERATELY CHOSEN POLICY WAS TO DO AWAY
WITH THOSE RIGIDITIES AND TO SUBSTITUTE SOUND DISCRETIONARY
LIMITATIONS, EXCEPT AS OTHERWISE EXPRESSLY DIRECTED.  FN4  THIS POLICY
WAS STATED CLEARLY, FULLY AND I THINK ACCURATELY IN THE RULES
THEMSELVES BY THE ADDITION OF RULE 6, OF WHICH SUBDIVISION (B) IS
EXPRESSLY APPLICABLE HERE. 

BY THIS UNAMBIGUOUS DECLARATION IT WAS PROVIDED THAT "THE COURT FOR
CAUSE SHOWN MAY, AT ANY TIME IN ITS DISCRETION  ...  (2) UPON MOTION
PERMIT THE ACT TO BE DONE AFTER THE EXPIRATION OF THE SPECIFIED PERIOD
WHERE THE FAILURE TO ACT WAS THE RESULT OF EXCUSABLE NEGLECT."  FN5
THIS WAS APPLICABLE IN ANY SITUATION "WHEN BY THESE RULES OR BY A
NOTICE GIVEN THEREUNDER OR BY ORDER OF COURT AN ACT IS REQUIRED OR
ALLOWED TO BE DONE AT OR WITHIN A SPECIFIED PERIOD," WITH TWO AND ONLY
TWO EXCEPTIONS.  THESE WERE TO FORBID ENLARGING THE TIME FOR TAKING ANY
ACTION UNDER RULE 59, EXCEPT AS STATED IN SUBDIVISION (C) THEREOF, AND
THE PERIOD FOR TAKING APPEAL.  RULE 73.  THE FORBIDDEN ENLARGEMENTS
UNDER RULE 59 INVOLVE MATTERS CONCERNING THE GRANTING OF NEW TRIALS. 

IN THOSE TWO RESPECTS AND IN THEM ALONE THE TIME LIMITATION WAS MADE,
AND WAS INTENDED TO BE, "JURISDICTIONAL."  FOR THE REST, THE COURTS
WERE TO EXERCISE DISCRETION.  IT IS TO BE EMPHASIZED THAT THE LIMITS OF
DISCRETION FIXED FOR ENLARGING TIME AFTER THE PRESCRIBED PERIODS WERE
NARROWED BY REQUIRING THAT ENLARGEMENT BE MADE, IF AT ALL, ONLY UPON
MOTION AND ONLY UPON SHOWING THAT THE FAILURE TO ACT WITHIN TIME WAS
DUE TO EXCUSABLE NEGLECT.  FN6  THOSE LIMITATIONS WERE APPLICABLE HERE,
IN MY OPINION, AND ADMITTEDLY THEY WERE SATISFIED. 

RULE 6, INCLUDING SUBDIVISIONS (B) AND (C), WAS THUS A GENERAL AND A
CAREFULLY DRAWN DECLARATION OF PARAMOUNT POLICY FOR THE APPLICATION OF
LIMITATIONS OF TIME.  IT MADE NO DISTINCTION BETWEEN RULES GOVERNING
ACTIONS TO BE TAKEN BY THE PARTIES AND ACTIONS TO BE TAKEN BY THE
COURTS.  FN7  IT MADE NO EXCEPTIONS OTHER THAN THE TWO EXPRESSLY SET
FORTH.  THIS COURT APPROVED THE RULE AS DRAWN AND CONGRESS ALLOWED IT
TO BECOME LAW WITHOUT MODIFICATION.  TO ASSUME OR TO RULE THAT
ADDITIONAL EXCEPTIONS WERE INTENDED IS TO ASSUME THAT THE COMMITTEE,
THE COURT AND CONGRESS OVERLOOKED OTHERS WHICH SHOULD HAVE BEEN STATED
IN RULE 6(B) OR DID NOT INTEND THE DECLARED POLICY OF THAT SECTION TO
BE EFFECTIVE FULLY ACCORDING TO ITS TERMS.  I AM UNABLE TO ACCEPT
EITHER CONCLUSION.  IF WE MAY MAKE AN ADDITIONAL EXCEPTION FORBIDDING
ENLARGEMENT OF TIME IN CASES COVERED BY RULE 25(A) IN THE FACE OF THE
EXPRESS PROVISION OF RULE 6(B), THERE IS NO REASON WHY OTHERS MAY NOT
ALSO BE MADE, AND THUS THE SALUTARY POLICY OF RULE 6(B) BE DEFEATED. 
FN8 

THE CONSIDERATIONS OF POLICY SAID TO SUPPORT THE DECISION WOULD BE
GROUNDS EITHER FOR THE DISTRICT COURT'S CONSIDERATION IN DETERMINING
WHETHER TO DENY ENLARGEMENT IN THE EXERCISE OF ITS DISCRETION OR FOR
AMENDMENT OF RULE 6(B) SO AS TO EXCLUDE SUCH CASES AS THIS.  FN9  THEY
ARE NOT A BASIS IN MY OPINION FOR CHANGING THAT RULE BY INTERPRETATION
OR FOR OPENING THE DOOR TO FURTHER RESTRICTIVE AMENDMENTS OF RULE 6(B)
IN THIS RESPECT BY THAT PROCESS.  IF THIS IS TO BE DONE, IT SHOULD BE
BY THE PRESCRIBED RULE-MAKING PROCEDURE.  INDEED THE ADVISORY
COMMITTEE, IN THE RECENTLY PROPOSED AMENDMENTS TO THE RULE, HAS
RECOMMENDED THAT RULE 25(A) BE REPHRASED SO AS TO ELIMINATE ANY
QUESTION THAT THE RULE HAS THE MEANING ASCRIBED TO IT IN THIS OPINION. 
AND ITS NOTE APPENDED TO THE RECOMMENDATION STATES THAT THE PURPOSE IS
TO GUARD AGAINST INJUSTICES LIKELY TO RESULT FROM A FLAT TWO-YEAR
LIMITATION.  FN10  IN MY OPINION THE COMMITTEE'S ACTION AND THE REASONS
GIVEN FOR IT CONFIRM, RATHER THAN DISAVOW, THE SECTION'S ORIGINALLY
INTENDED MEANING.    THIS CASE IS AN ILLUSTRATION OF THE KINDS OF
INJUSTICE THE COMMITTEE SOUGHT TO AVOID.  AND THE CONSIDERATIONS OF
POLICY ARE NOT ALTOGETHER ONE-SIDED.  THE EFFECT OF THE DECISION IN
SUCH A CASE AS THIS IS NOT ONLY TO THROW AN ADMITTEDLY IMPOSSIBLE
BURDEN UPON THE PARTY SEEKING WITHOUT NEGLECT TO ENFORCE HIS CAUSE OF
ACTION.  IT IS ALSO TO THROW UPON OTHER PARTIES, EQUALLY HELPLESS, A
HEAVIER BURDEN OF FINANCIAL LOSS, WHETHER BY DEPRIVING THEM OF RIGHTFUL
RECOVERY OR BY FORCING THEM, IN SOME INSTANCES AT LEAST, TO BEAR A
LARGER SHARE OF THE COMMON RESPONSIBILITY.  FN11    IN MY OPINION THE
JUDGMENT SHOULD BE REVERSED AND THE CAUSE REMANDED TO THE DISTRICT
COURT FOR THE EXERCISE OF THE DISCRETION GIVEN BY THE RULES. 

FN1  THE NOTES OF THE ADVISORY COMMITTEE ON THE ORIGINAL FEDERAL
RULES STATE THAT RULE 25(A) "IS BASED UPON EQUITY RULE 45(DEATH OF
PARTY - REVIVOR) AND U.S.C., TITLE 28, SEC. 778(DEATH OF PARTIES;
SUBSTITUTION OF EXECUTOR OR ADMINISTRATOR)."  PRIOR TO 1921 WHAT IS NOW
28 U.S.C. SEC. 778 DID NOT APPLY TO SUITS IN EQUITY.  EQUITY RULE 45,
WITH ITS PROVISION THAT A MOTION FOR SUBSTITUTION MIGHT BE MADE WITHIN
"A REASONABLE TIME," WAS GOVERNING.  BUT BY 42 STAT. 352 IT WAS
PROVIDED THAT THE REVIVAL OF EQUITY SUITS SHOULD BE BY SCIRE FACIAS,
AND A TWO-YEAR STATUTE OF LIMITATIONS WAS MADE APPLICABLE.  SEE 28
U.S.C.A. (1928) SEC. 774 TO END, P. 99, "COMPILER'S NOTE." 

HOWEVER, IN GENERAL THE RULES WERE INTENDED TO SUPERSEDE RATHER THAN
INCORPORATE PREVIOUSLY EXISTING STATUTORY OR OTHER PROVISIONS, WHERE
THE WORDING WAS DIFFERENT; AND THE COMMITTEE'S STATEMENT THAT RULE
25(A) "IS BASED UPON EQUITY RULE 45" AS WELL AS 28 U.S.C. SEC. 778,
TOGETHER WITH THE DIFFERENT WORDING OF THE RULE AND THAT SECTION, MAY
INDICATE THAT THE COMMITTEE EITHER CONSIDERED EQUITY RULE 45 STILL
EFFECTIVE, FOR WHICH THERE SEEMS TO HAVE BEEN SOME JUDICIAL AUTHORITY,
SEE ELECTROPURE SALES CORP. V. ANGLIM, 21 F.SUPP.  451, 452; GASKINS V.
BONFILS, 4 F.SUPP.  547, 550-551, OR INTENDED TO ADOPT IT IN SUBSTANCE
AS THE BASIS AND EFFECT OF RULE 25(A).  HAD THE PURPOSE BEEN TO
INCORPORATE 28 U.S.C. SEC. 778, THERE WOULD HAVE BEEN NO NECESSITY FOR
CHANGING THE WORDING, EXCEPT IN RELATION TO THE SCIRE FACIAS
PROCEDURE.  SEE NOTE 10 INFRA AND TEXT. 

FN2  SEE TEXT AT NOTE 6 INFRA. 

FN3  SEE RULES 6(B), (C) AND 60, ALL OF WHICH HAVE RECEIVED WIDE
COMMENT.  SEE ALSO NOTES 4 AND 10. 

FN4  SEE PROCEEDINGS OF THE INSTITUTE ON THE FEDERAL RULES OF CIVIL
PROCEDURE AT WASHINGTON, D.C., AND OF THE SYMPOSIUM AT NEW YORK CITY
(1939) 83-84; PROCEEDINGS OF THE INSTITUTE ON THE FEDERAL RULES OF
CIVIL PROCEDURE AT CLEVELAND (1938) 210-211; HEARINGS BEFORE THE
COMMITTEE ON THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES WITH REGARD
TO THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED
STATES, 75TH CONG., 3D SESS., 60. 

FN5  THE RULE IN FULL IS AS FOLLOWS: 

"RULE 6(B) ENLARGEMENT.  WHEN BY THESE RULES OR BY A NOTICE GIVEN
THEREUNDER OR BY ORDER OF COURT AN ACT IS REQUIRED OR ALLOWED TO BE
DONE AT OR WITHIN A SPECIFIED TIME, THE COURT FOR CAUSE SHOWN MAY, AT
ANY TIME IN ITS DISCRETION (1) WITH OR WITHOUT MOTION OR NOTICE, ORDER
THE PERIOD ENLARGED IF APPLICATION THEREFOR IS MADE BEFORE THE
EXPIRATION OF THE PERIOD ORIGINALLY PRESCRIBED OR AS EXTENDED BY A
PREVIOUS ORDER OR (2) UPON MOTION PERMIT THE ACT TO BE DONE AFTER THE
EXPIRATION OF THE SPECIFIED PERIOD WHERE THE FAILURE TO ACT WAS THE
RESULT OF EXCUSABLE NEGLECT; BUT IT MAY NOT ENLARGE THE PERIOD FOR
TAKING ANY ACTION UNDER RULE 59, EXCEPT AS STATED IN SUBDIVISION (C)
THEREOF, OR THE PERIOD FOR TAKING AN APPEAL AS PROVIDED BY LAW." 

FN6  SEE NOTE 5.  IF RULE 25(A) CONSTITUTES IN EFFECT A STATUTE OF
LIMITATIONS, AS THE COURT HOLDS, IT MAY BE INQUIRED WHETHER, EVEN UPON
PROPER APPLICATION MADE WITHIN THE TWO-YEAR PERIOD UNDER RULE 6(B)(1),
SEE NOTE 5, THE COURT COULD ENLARGE THE TIME BY EXTENSION, AS SEEMS
CLEARLY CONTEMPLATED BY THE CLAUSE "OR AS EXTENDED BY A PREVIOUS
ORDER." 

FN7  SEE NOTE 5.  THE RULES ARE REPLETE WITH PROVISIONS FOR ACTION TO
BE TAKEN WITHIN SPECIFIED PERIODS BY THE COURTS UPON THEIR OWN
INITIATIVE AS WELL AS UPON MOTION BY THE PARTIES.  RULE 6(B) IS ITSELF
AN ILLUSTRATION.  CERTAINLY IT CANNOT BE SAID, IN VIEW OF THE RULE'S
COMPREHENSIVE LANGUAGE, THAT IT APPLIES ONLY TO ACTIONS TO BE TAKEN BY
THE PARTIES AND HAS NO APPLICATION TO THE LARGE NUMBER OF INSTANCES IN
WHICH LIMITATIONS OF TIME ARE IMPOSED FOR ACTION TO BE TAKEN BY THE
COURTS.  SUCH A CONSTRUCTION WOULD BRING BACK MANY OF THE EVILS THE
RULES WERE DESIGNED TO AVOID.  IT WOULD DEFEAT PERHAPS AS MANY OF THE
LITERAL AND INTENDED APPLICATIONS OF RULE 6(B) AS IT WOULD PRESERVE. 

RULE 6(C) IS AS FOLLOWS:  "THE PERIOD OF TIME PROVIDED FOR THE DOING
OF ANY ACT OR THE TAKING OF ANY PROCEEDING IS NOT AFFECTED OR LIMITED
BY THE EXPIRATION OF A TERM OF COURT.  THE EXPIRATION OF A TERM OF
COURT IN NO WAY AFFECTS THE POWER OF A COURT TO DO ANY ACT OR TAKE ANY
PROCEEDING IN ANY CIVIL ACTION WHICH HAS BEEN PENDING BEFORE IT." 

FN8  THE ADVISORY COMMITTEE IN ITS REPORT OF PROPOSED AMENDMENTS TO
THE RULES OF CIVIL PROCEDURE (1946) 2-6 POINTS OUT THAT DISTRICT COURTS
AND CIRCUIT COURTS OF APPEALS IN SOME CASES HAVE REFUSED TO APPLY RULE
6(B) TO OTHER RULES AS WELL AS RULE 25(A), SEE, E.G., WALLACE V. UNITED
STATES, 142 F.2D 240; REED V. SOUTH ATLANTIC S.S. CO., 2 F.R.D. 475;
MUTUAL BENEFIT HEALTH & ACCIDENT ASSN. V. SNYDER, 109 F.2D 469; CF.
BURKE V. CANFIELD, 72 APP. D.C. 127, 111 F.2D 526, THOUGH OTHER CASES
HAVE RULED THE OTHER WAY.  SEE, E.G., SCHRAM V. O'CONNOR, 2 F.R.D. 192,
194; AINSWORTH V. GILL GLASS & FIXTURE CO., 104 F.2D 83. 

FN9  BUT SEE NOTE 10 AND TEXT. 

FN10  REPORT OF PROPOSED AMENDMENTS TO RULES OF CIVIL PROCEDURE FOR
THE DISTRICT COURTS OF THE UNITED STATES (1946) 31-32. 

THE REVISION OF RULE 25(A) RECOMMENDED BY THE COMMITTEE READS AS
FOLLOWS, THE REVISED MATTER APPEARING IN ITALICS:  "IF A PARTY DIES AND
THE CLAIM IS NOT THEREBY EXTINGUISHED, THE COURT UPON APPLICATION MADE
WITHIN 2 YEARS AFTER THE DEATH SHALL ORDER SUBSTITUTION OF THE PROPER
PARTIES.  IF THE APPLICATION IS MADE AFTER 2 YEARS THE COURT MAY ORDER
SUBSTITUTION BUT ONLY UPON THE SHOWING OF A REASONABLE EXCUSE FOR
FAILURE TO APPLY WITHIN THAT PERIOD.  IF SUBSTITUTION IS NOT SO MADE,
THE ACTION SHALL BE DISMISSED AS TO THE DECEASED PARTY...." 

THE COMMITTEE APPENDS THE FOLLOWING COMMENT:  "THIS AMENDMENT GUARDS
AGAINST POSSIBLE INJUSTICE IN A CASE WHERE THERE IS SOME REASONABLE
EXCUSE FOR NOT APPLYING FOR SUBSTITUTION WITHIN THE 2-YEAR PERIOD.  IT
HAS BEEN HELD THAT THE COURT HAS NO POWER TO PERMIT SUBSTITUTION AFTER
THE EXPIRATION OF THE 2-YEAR LIMIT, IRRESPECTIVE OF THE CIRCUMSTANCES. 
WINKELMAN V. GENERAL MOTORS CORP. (S.D.N.Y. 1939) 30 F.SUPP.  112;
ANDERSON V. BRADY (E.D. KY. 1941) 4 FED. RULES SERV. 25A.1, CASE 1;
PHOTOMETRIC PRODUCTS CORP. V. RADTKE (S.D.N.Y. 1946) 9 FED. RULES SERV.
25A.3, CASE 1; ANDERSON V. YUNGKAU (C.C.A.6TH, 1946) 153 F.(2D) 685,
CERT. GRANTED (1946) 66 S. CT. 1025." 

IN ITS COMMENT RELATING TO RULE 6(B), PP. 2-3, THE COMMITTEE STATES:
"IN A NUMBER OF CASES THE EFFECT OF RULE 6(B) ON THE TIME LIMITATIONS
OF THESE RULES HAS BEEN CONSIDERED.  CERTAINLY THE RULE IS SUSCEPTIBLE
OF THE INTERPRETATION THAT THE COURT IS GIVEN THE POWER IN ITS
DISCRETION TO RELIEVE A PARTY FROM FAILURE TO ACT WITHIN THE TIMES
SPECIFIED IN ANY OF THESE OTHER RULES, WITH ONLY THE EXCEPTIONS STATED
IN RULE 6(B), AND IN SOME CASES THE RULE HAS BEEN SO CONSTRUED." 

"WITH REGARD TO RULE 25(A) FOR SUBSTITUTION, IT WAS HELD IN ANDERSON
V. BRADY (E.D. KY. 1941) 4 FED. RULES SERVICE 25A.1, CASE 1, AND IN
ANDERSON V. YUNGKAU (C.C.A.6TH, 1946) 153 F.(2D) 685, CERT. GRANTED
(1946) 66 S. CT. 1025, THAT UNDER RULE 6(B) THE COURT HAD NO AUTHORITY
TO ALLOW SUBSTITUTION OF PARTIES AFTER THE EXPIRATION OF THE LIMIT
FIXED IN RULE 25(A)." 

FN11  THE STATUTORY LIABILITY OF SHAREHOLDERS IN NATIONAL BANKING
ASSOCIATIONS WAS CREATED BY 12 U.S.C. SECS. 63, 64.  BY SEC. 63 THE
SHAREHOLDER WAS MADE "INDIVIDUALLY RESPONSIBLE, EQUALLY AND RATABLY AND
NOT ONE FOR ANOTHER, FOR ALL CONTRACTS, DEBTS, AND ENGAGEMENTS OF SUCH
ASSOCIATION, TO THE EXTENT OF THE AMOUNT OF THEIR STOCK THEREIN, AT THE
PAR VALUE THEREOF, IN ADDITION TO THE AMOUNT INVESTED IN SUCH
SHARES...."  BY SEC. 64 THE SHAREHOLDER WAS MADE "INDIVIDUALLY
RESPONSIBLE FOR ALL CONTRACTS, DEBTS, AND ENGAGEMENTS OF SUCH
ASSOCIATION, EACH TO THE AMOUNT OF HIS STOCK THEREIN, AT THE PAR VALUE
THEREOF IN ADDITION TO THE AMOUNT INVESTED IN SUCH STOCK." 

TO WHAT EXTENT SEC. 64 MAY HAVE MODIFIED SEC. 63 HAS BEEN DISPUTED. 
SEE AMERICAN TRUST CO. V. GRUT, 80 F.2D 155; FIRST NAT. BANK V. FIRST
NAT. BANK, 14 F.2D 129.  BUT IN ANDERSON V. ABBOTT WE SAID:  "IT IS
SUFFICIENT AT THIS TIME TO STATE THAT THE LIABILITY OF THE SHAREHOLDERS
OF BANCO WOULD BE MEASURED BY THE NUMBER OF SHARES OF STOCK OF THE
BANK, WHETHER SEVERAL OR ONLY FRACTIONAL, REPRESENTED BY EACH SHARE OF
STOCK OF BANCO; AND THAT THE ASSESSMENT LIABILITY OF EACH SHARE OF
STOCK OF BANCO WOULD BE A LIKE PROPORTION OF THE ASSESSMENT LIABILITY
OF THE SHARES OF THE BANK REPRESENTED BY THE FORMER."  321 U.S. 349,
368-369.  AND IN FRANK V. GIESY, 117 F.2D 122, 125, IT WAS HELD THAT
THE OMISSION IN SEC. 64 OF THE PRO RATA LIMITATION OF SEC. 63 WAS
INTENDED TO STRENGTHEN THE POSITION OF CREDITORS, MAKING EACH
SHAREHOLDER'S LIABILITY SEVERAL AND FULLY ENFORCEABLE THOUGH OTHERS GO
FREE.  IN FIRST NAT. BANK V. FIRST NAT. BANK, SUPRA, THE SHAREHOLDER
MADE TO PAY WAS HELD ENTITLED TO ENFORCE CONTRIBUTION AGAINST OTHERS
NOT PROCEEDED AGAINST.  THE SHAREHOLDER'S LIABILITY IS SECONDARY ONLY,
MCCLAINE V. RANKIN, 197 U.S. 154, 161; FIRST NATIONAL BANK V. NICHOLS,
294 MASS. 173, 181, 200 N.E. 869, AND THOUGH ONE IS NOT RELIEVED EITHER
WHOLLY OR IN PART BECAUSE OTHERS ARE NOT COMPELLED TO PAY, NEITHER IS
ANY REQUIRED TO PAY MORE PROPORTIONATELY THAN IS NEEDED FROM THE FUND
ACTUALLY COLLECTED TO DISCHARGE THE BANK'S OBLIGATIONS.  BANK OF WARE
SHOALS V. MARTIN, 17 F.SUPP.  61, 63.  THE LIABILITY IS NOT A DEBT BUT
IS ONE MERELY ASSURING PAYMENT OF THE BANK'S OBLIGATIONS.  MCCLAINE V.
RANKIN, SUPRA. 

THE COURT'S DECISION THEREFORE IN EFFECT CUTS OFF ANY POSSIBILITY
SHAREHOLDERS FORCED TO PAY MAY HAVE FOR REDUCTION OF THE AMOUNTS OF
THEIR PAYMENTS EITHER THROUGH THE RECEIVER'S ENFORCEMENT OF THE
LIABILITY DIRECTLY AGAINST DECEDENT SHAREHOLDERS' ESTATES OR BY SEEKING
CONTRIBUTION FROM THEM AFTER THE TWO-YEAR PERIOD.  AND THIS IS DONE
REGARDLESS OF THE ESTATE'S COMPARATIVE ABILITY TO PAY, OF WHETHER IT IS
IN AN EARLY OR A LATE STAGE OF ADMINISTRATION, AND OF WHEN THE DEATH
OCCURS.  THUS, IN THESE CASES, ONLY ONE ESTATE HAS BEEN CLOSED AND ONE
OTHER IS NEARING THAT STAGE; BUT SO FAR AS APPEARS THE OTHER FIVE
REMAIN OPEN AND UNDISTRIBUTED. 

THE SUITS WERE BEGUN IN 1936.  EIGHT YEARS WERE TAKEN UP FOR
LITIGATION OF THE PRINCIPAL ISSUE OF LIABILITY IN ANDERSON V. ABBOTT,
SUPRA.  THAT LIABILITY HAVING BEEN ESTABLISHED AFTER SO LONG A TIME,
NOW ELEVEN YEARS AFTER THE SUITS WERE INSTITUTED THIS DECISION COMES TO
NULLIFY IT IN SUBSTANTIAL PART AND EFFECT.  THE RESULT, IN MY OPINION,
IS QUITE AS MUCH TO MAKE THE PROTECTION AFFORDED BY THESE STATUTES TURN
ON ACCIDENTS OF LIFE AND DEATH IN SOME INSTANCES, PERHAPS IN MANY, AT
VARIANCE WITH THE NATURE OF THE LIABILITY AND ITS FAIR ADMINISTRATION,
AS OTHER DISTINCTIONS WERE SAID IN THE ANDERSON CASE TO MAKE THE
PROTECTION TURN ON IRRELEVANT ACCIDENTS.  321 U.S. AT 367. 

MR. JUSTICE BURTON JOINS IN THIS DISSENT. 
..END :
























HICKMAN V. TAYLOR, 329 U.S. 495 


NO. 47.  ARGUED NOVEMBER 13, 1946.  - DECIDED JANUARY 13, 1947.  - 153
F.2D 212, AFFIRMED. 


UNDER THE FEDERAL RULES OF CIVIL PROCEDURE, PLAINTIFF IN A SUIT IN A
FEDERAL DISTRICT COURT AGAINST CERTAIN TUG OWNERS TO RECOVER FOR THE
DEATH OF A SEAMAN IN THE SINKING OF THE TUG FILED NUMEROUS
INTERROGATORIES DIRECTED TO THE DEFENDANTS, INCLUDING ONE INQUIRING
WHETHER ANY STATEMENTS OF MEMBERS OF THE CREW WERE TAKEN IN CONNECTION
WITH THE ACCIDENT AND REQUESTING THAT EXACT COPIES OF ALL SUCH WRITTEN
STATEMENTS BE ATTACHED AND THAT THE DEFENDANT "SET FORTH IN DETAIL THE
EXACT PROVISIONS OF ANY SUCH ORAL STATEMENTS OR REPORTS."  THERE WAS NO
SHOWING OF NECESSITY OR OTHER JUSTIFICATION FOR THESE REQUESTS.  A
PUBLIC HEARING HAD BEEN HELD BEFORE THE UNITED STATES STEAMBOAT
INSPECTORS, AT WHICH THE SURVIVORS OF THE ACCIDENT HAD BEEN EXAMINED
AND THEIR TESTIMONY RECORDED AND MADE AVAILABLE TO ALL INTERESTED
PARTIES.  DEFENDANTS ANSWERED ALL OTHER INTERROGATORIES, STATING
OBJECTIVE FACTS AND GIVING THE NAMES AND ADDRESSES OF WITNESSES, BUT
DECLINED TO SUMMARIZE OR SET FORTH THE STATEMENTS TAKEN FROM WITNESSES,
ON THE GROUND THAT THEY WERE "PRIVILEGED MATTER OBTAINED IN PREPARATION
FOR LITIGATION."  AFTER A HEARING ON OBJECTIONS TO THE INTERROGATORIES,
THE DISTRICT COURT HELD THAT THE REQUESTED MATTERS WERE NOT PRIVILEGED
AND DECREED THAT THEY BE PRODUCED AND THAT MEMORANDA OF DEFENDANTS'
COUNSEL CONTAINING STATEMENTS OF FACT BY WITNESSES EITHER BE PRODUCED
OR SUBMITTED TO THE COURT FOR DETERMINATION OF THOSE PORTIONS WHICH
SHOULD BE REVEALED TO PLAINTIFF.  DEFENDANTS AND THEIR COUNSEL REFUSED
AND WERE ADJUDGED GUILTY OF CONTEMPT.  HELD: 

1.  IN THESE CIRCUMSTANCES, RULES 26, 33 AND 34 OF THE FEDERAL RULES
OF CIVIL PROCEDURE DO NOT REQUIRE THE PRODUCTION AS OF RIGHT OF ORAL
AND WRITTEN STATEMENTS OF WITNESSES SECURED BY AN ADVERSE PARTY'S
COUNSEL IN THE COURSE OF PREPARATION FOR POSSIBLE LITIGATION AFTER A
CLAIM HAS ARISEN.  PP. 509-514. 

2.  SINCE PLAINTIFF ADDRESSED SIMPLE INTERROGATORIES TO ADVERSE
PARTIES, DID NOT DIRECT THEM TO SUCH PARTIES OR THEIR COUNSEL BY WAY OF
DEPOSITION UNDER RULE 26, AND IT DOES NOT APPEAR THAT HE FILED A MOTION
UNDER RULE 34 FOR A COURT ORDER DIRECTING THE PRODUCTION OF THE
DOCUMENTS IN QUESTION, HE WAS PROCEEDING PRIMARILY UNDER RULE 33,
RELATING TO INTERROGATORIES TO PARTIES.  P. 504. 

3.  RULES 33 AND 34 ARE LIMITED TO PARTIES, THEREBY EXCLUDING THEIR
COUNSEL OR AGENTS.  P. 504. 

4.  RULE 33 DID NOT PERMIT THE PLAINTIFF TO OBTAIN, AS ADJUNCTS TO
INTERROGATORIES ADDRESSED TO DEFENDANTS, MEMORANDA AND STATEMENTS
PREPARED BY THEIR COUNSEL AFTER A CLAIM HAD ARISEN.  P. 504. 

5.  THE DISTRICT COURT ERRED IN HOLDING DEFENDANTS IN CONTEMPT FOR
FAILURE TO PRODUCE THAT WHICH WAS IN THE POSSESSION OF THEIR COUNSEL
AND IN HOLDING THEIR COUNSEL IN CONTEMPT FOR FAILURE TO PRODUCE THAT
WHICH HE COULD NOT BE COMPELLED TO PRODUCE UNDER EITHER RULE 33 OR RULE
34.  P. 505. 

6.  MEMORANDA, STATEMENTS AND MENTAL IMPRESSIONS PREPARED OR OBTAINED
FROM INTERVIEWS WITH WITNESSES BY COUNSEL IN PREPARING FOR LITIGATION
AFTER A CLAIM HAS ARISEN ARE NOT WITHIN THE ATTORNEYCLIENT PRIVILEGE
AND ARE NOT PROTECTED FROM DISCOVERY ON THAT BASIS.  P. 508. 

7.  THE GENERAL POLICY AGAINST INVADING THE PRIVACY OF AN ATTORNEY'S
COURSE OF PREPARATION IS SO ESSENTIAL TO AN ORDERLY WORKING OF OUR
SYSTEM OF LEGAL PROCEDURE THAT A BURDEN RESTS ON THE ONE WHO WOULD
INVADE THAT PRIVACY TO ESTABLISH ADEQUATE REASONS TO JUSTIFY PRODUCTION
THROUGH A SUBPOENA OR COURT ORDER.  P. 512. 

8.  RULE 30(B) GIVES THE TRIAL JUDGE THE REQUISITE DISCRETION TO MAKE
A JUDGMENT AS TO WHETHER DISCOVERY SHOULD BE ALLOWED AS TO WRITTEN
STATEMENTS SECURED FROM WITNESSES; BUT IN THIS CASE THERE WAS NO GROUND
FOR THE EXERCISE OF THAT DISCRETION IN FAVOR OF PLAINTIFF.  P. 512. 

9.  UNDER THE CIRCUMSTANCES OF THIS CASE, NO SHOWING OF NECESSITY
COULD BE MADE WHICH WOULD JUSTIFY REQUIRING THE PRODUCTION OF ORAL
STATEMENTS MADE BY WITNESSES TO DEFENDANTS' COUNSEL, WHETHER PRESENTLY
IN THE FORM OF HIS MENTAL IMPRESSIONS OR IN THE FORM OF MEMORANDA.  P.
512. 

HICKMAN, ADMINISTRATOR, V. TAYLOR ET AL., TRADING AS TAYLOR & ANDERSON
TOWING & LIGHTERAGE CO., ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

A DISTRICT COURT ADJUDGED RESPONDENTS GUILTY OF CONTEMPT FOR FAILURE
TO PRODUCE, IN RESPONSE TO INTERROGATORIES, COPIES OF CERTAIN WRITTEN
STATEMENTS AND MEMORANDA PREPARED BY COUNSEL IN CONNECTION WITH PENDING
LITIGATION.  4 F.R.D. 479.  THE CIRCUIT COURT OF APPEALS REVERSED.  153
F.2D 212.  THIS COURT GRANTED CERTIORARI.  328 U.S. 876.  AFFIRMED, P.
514. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS AN IMPORTANT PROBLEM UNDER THE FEDERAL RULES OF
CIVIL PROCEDURE AS TO THE EXTENT TO WHICH A PARTY MAY INQUIRE INTO ORAL
AND WRITTEN STATEMENTS OF WITNESSES, OR OTHER INFORMATION, SECURED BY
AN ADVERSE PARTY'S COUNSEL IN THE COURSE OF PREPARATION FOR POSSIBLE
LITIGATION AFTER A CLAIM HAS ARISEN.  EXAMINATION INTO A PERSON'S FILES
AND RECORDS, INCLUDING THOSE RESULTING FROM THE PROFESSIONAL ACTIVITIES
OF AN ATTORNEY, MUST BE JUDGED WITH CARE.  IT IS NOT WITHOUT REASON
THAT VARIOUS SAFEGUARDS HAVE BEEN ESTABLISHED TO PRECLUDE UNWARRANTED
EXCURSIONS INTO THE PRIVACY OF A MAN'S WORK.  AT THE SAME TIME, PUBLIC
POLICY SUPPORTS REASONABLE AND NECESSARY INQUIRIES.  PROPERLY TO
BALANCE THESE COMPETING INTERESTS IS A DELICATE AND DIFFICULT TASK. 

ON FEBRUARY 7, 1943, THE TUG "J. M. TAYLOR" SANK WHILE ENGAGED IN
HELPING TO TOW A CAR FLOAT OF THE BALTIMORE & OHIO RAILROAD ACROSS THE
DELAWARE RIVER AT PHILADELPHIA.  THE ACCIDENT WAS APPARENTLY UNUSUAL IN
NATURE, THE CAUSE OF IT STILL BEING UNKNOWN.  FIVE OF THE NINE CREW
MEMBERS WERE DROWNED.  THREE DAYS LATER THE TUG OWNERS AND THE
UNDERWRITERS EMPLOYED A LAW FIRM, OF WHICH RESPONDENT FORTENBAUGH IS A
MEMBER, TO DEFEND THEM AGAINST POTENTIAL SUITS BY REPRESENTATIVES OF
THE DECEASED CREW MEMBERS AND TO SUE THE RAILROAD FOR DAMAGES TO THE
TUG. 

A PUBLIC HEARING WAS HELD ON MARCH 4, 1943, BEFORE THE UNITED STATES
STEAMBOAT INSPECTORS, AT WHICH THE FOUR SURVIVORS WERE EXAMINED.  THIS
TESTIMONY WAS RECORDED AND MADE AVAILABLE TO ALL INTERESTED PARTIES. 
SHORTLY THEREAFTER, FORTENBAUGH PRIVATELY INTERVIEWED THE SURVIVORS AND
TOOK STATEMENTS FROM THEM WITH AN EYE TOWARD THE ANTICIPATED
LITIGATION; THE SURVIVORS SIGNED THESE STATEMENTS ON MARCH 29. 
FORTENBAUGH ALSO INTERVIEWED OTHER PERSONS BELIEVED TO HAVE SOME
INFORMATION RELATING TO THE ACCIDENT AND IN SOME CASES HE MADE
MEMORANDA OF WHAT THEY TOLD HIM.  AT THE TIME WHEN FORTENBAUGH SECURED
THE STATEMENTS OF THE SURVIVORS, REPRESENTATIVES OF TWO OF THE DECEASED
CREW MEMBERS HAD BEEN IN COMMUNICATION WITH HIM.  ULTIMATELY CLAIMS
WERE PRESENTED BY REPRESENTATIVES OF ALL FIVE OF THE DECEASED; FOUR OF
THE CLAIMS, HOWEVER, WERE SETTLED WITHOUT LITIGATION.  THE FIFTH
CLAIMANT, PETITIONER HEREIN, BROUGHT SUIT IN A FEDERAL COURT UNDER THE
JONES ACT ON NOVEMBER 26, 1943, NAMING AS DEFENDANTS THE TWO TUG
OWNERS, INDIVIDUALLY AND AS PARTNERS, AND THE RAILROAD. 

ONE YEAR LATER, PETITIONER FILED 39 INTERROGATORIES DIRECTED TO THE
TUG OWNERS.  THE 38TH INTERROGATORY READ:  "STATE WHETHER ANY
STATEMENTS OF THE MEMBERS OF THE CREWS OF THE TUGS 'J. M. TAYLOR' AND
'PHILADELPHIA' OR OF ANY OTHER VESSEL WERE TAKEN IN CONNECTION WITH THE
TOWING OF THE CAR FLOAT AND THE SINKING OF THE TUG 'JOHN M. TAYLOR.' 
ATTACH HERETO EXACT COPIES OF ALL SUCH STATEMENTS IF IN WRITING, AND IF
ORAL, SET FORTH IN DETAIL THE EXACT PROVISIONS OF ANY SUCH ORAL
STATEMENTS OR REPORTS." 

SUPPLEMENTAL INTERROGATORIES ASKED WHETHER ANY ORAL OR WRITTEN
STATEMENTS, RECORDS, REPORTS OR OTHER MEMORANDA HAD BEEN MADE
CONCERNING ANY MATTER RELATIVE TO THE TOWING OPERATION, THE SINKING OF
THE TUG, THE SALVAGING AND REPAIR OF THE TUG, AND THE DEATH OF THE
DECEASED.  IF THE ANSWER WAS IN THE AFFIRMATIVE, THE TUG OWNERS WERE
THEN REQUESTED TO SET FORTH THE NATURE OF ALL SUCH RECORDS, REPORTS,
STATEMENTS OR OTHER MEMORANDA. 

THE TUG OWNERS, THROUGH FORTENBAUGH, ANSWERED ALL OF THE
INTERROGATORIES EXCEPT NO. 38 AND THE SUPPLEMENTAL ONES JUST
DESCRIBED.  WHILE ADMITTING THAT STATEMENTS OF THE SURVIVORS HAD BEEN
TAKEN, THEY DECLINED TO SUMMARIZE OR SET FORTH THE CONTENTS.  THEY DID
SO ON THE GROUND THAT SUCH REQUESTS CALLED "FOR PRIVILEGED MATTER
OBTAINED IN PREPARATION FOR LITIGATION" AND CONSTITUTED "AN ATTEMPT TO
OBTAIN INDIRECTLY COUNSEL'S PRIVATE FILES."  IT WAS CLAIMED THAT
ANSWERING THESE REQUESTS "WOULD INVOLVE PRACTICALLY TURNING OVER NOT
ONLY THE COMPLETE FILES, BUT ALSO THE TELEPHONE RECORDS AND, ALMOST,
THE THOUGHTS OF COUNSEL." 

IN CONNECTION WITH THE HEARING ON THESE OBJECTIONS, FORTENBAUGH MADE
A WRITTEN STATEMENT AND GAVE AN INFORMAL ORAL DEPOSITION EXPLAINING THE
CIRCUMSTANCES UNDER WHICH HE HAD TAKEN THE STATEMENTS.  BUT HE WAS NOT
EXPRESSLY ASKED IN THE DEPOSITION TO PRODUCE THE STATEMENTS.  THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, SITTING EN
BANC, HELD THAT THE REQUESTED MATTERS WERE NOT PRIVILEGED.  4 F.R.D.
479.  THE COURT THEN DECREED THAT THE TUG OWNERS AND FORTENBAUGH, AS
COUNSEL AND AGENT FOR THE TUG OWNERS, FORTHWITH "ANSWER PLAINTIFF'S
38TH INTERROGATORY AND SUPPLEMENTARY INTERROGATORIES; PRODUCE ALL
WRITTEN STATEMENTS OF WITNESSES OBTAINED BY MR. FORTENBAUGH, AS COUNSEL
AND AGENT FOR DEFENDANTS; STATE IN SUBSTANCE ANY FACT CONCERNING THIS
CASE WHICH DEFENDANTS LEARNED THROUGH ORAL STATEMENTS MADE BY WITNESSES
TO MR. FORTENBAUGH WHETHER OR NOT INCLUDED IN HIS PRIVATE MEMORANDA AND
PRODUCE MR. FORTENBAUGH'S MEMORANDA CONTAINING STATEMENTS OF FACT BY
WITNESSES OR TO SUBMIT THESE MEMORANDA TO THE COURT FOR DETERMINATION
OF THOSE PORTIONS WHICH SHOULD BE REVEALED TO PLAINTIFF."  UPON THEIR
REFUSAL, THE COURT ADJUDGED THEM IN CONTEMPT AND ORDERED THEM
IMPRISONED UNTIL THEY COMPLIED. 

THE THIRD CIRCUIT COURT OF APPEALS, ALSO SITTING EN BANC, REVERSED
THE JUDGMENT OF THE DISTRICT COURT.  153 F.2D 212.  IT HELD THAT THE
INFORMATION HERE SOUGHT WAS PART OF THE "WORK PRODUCT OF THE LAWYER"
AND HENCE PRIVILEGED FROM DISCOVERY UNDER THE FEDERAL RULES OF CIVIL
PROCEDURE.  THE IMPORTANCE OF THE PROBLEM, WHICH HAS ENGENDERED A GREAT
DIVERGENCE OF VIEWS AMONG DISTRICT COURTS, FN1  LED US TO GRANT
CERTIORARI.  328 U.S. 876. 

THE PRE-TRIAL DEPOSITION-DISCOVERY MECHANISM ESTABLISHED BY RULES 26
TO 37 IS ONE OF THE MOST SIGNIFICANT INNOVATIONS OF THE FEDERAL RULES
OF CIVIL PROCEDURE.  UNDER THE PRIOR FEDERAL PRACTICE, THE PRE-TRIAL
FUNCTIONS OF NOTICEGIVING, ISSUE-FORMULATION AND FACT-REVELATION WERE
PERFORMED PRIMARILY AND INADEQUATELY BY THE PLEADINGS.  FN2  INQUIRY
INTO THE ISSUES AND THE FACTS BEFORE TRIAL WAS NARROWLY CONFINED AND
WAS OFTEN CUMBERSOME IN METHOD.  FN3  THE NEW RULES, HOWEVER, RESTRICT
THE PLEADINGS TO THE TASK OF GENERAL NOTICE-GIVING AND INVEST THE
DEPOSITION-DISCOVERY PROCESS WITH A VITAL ROLE IN THE PREPARATION FOR
TRIAL.  THE VARIOUS INSTRUMENTS OF DISCOVERY NOW SERVE (1) AS A DEVICE,
ALONG WITH THE PRE-TRIAL HEARING UNDER RULE 16, TO NARROW AND CLARIFY
THE BASIC ISSUES BETWEEN THE PARTIES, AND (2) AS A DEVICE FOR
ASCERTAINING THE FACTS, OR INFORMATION AS TO THE EXISTENCE OR
WHEREABOUTS OF FACTS, RELATIVE TO THOSE ISSUES.  THUS CIVIL TRIALS IN
THE FEDERAL COURTS NO LONGER NEED BE CARRIED ON IN THE DARK.  THE WAY
IS NOW CLEAR, CONSISTENT WITH RECOGNIZED PRIVILEGES, FOR THE PARTIES TO
OBTAIN THE FULLEST POSSIBLE KNOWLEDGE OF THE ISSUES AND FACTS BEFORE
TRIAL.  FN4 

THERE IS AN INITIAL QUESTION AS TO WHICH OF THE DEPOSITION-DISCOVERY
RULES IS INVOLVED IN THIS CASE.  PETITIONER, IN FILING HIS
INTERROGATORIES, THOUGH THAT HE WAS PROCEEDING UNDER RULE 33.  THAT
RULE PROVIDES THAT A PARTY MAY SERVE UPON ANY ADVERSE PARTY WRITTEN
INTERROGATORIES TO BE ANSWERED BY THE PARTY SERVED.  FN5  THE DISTRICT
COURT PROCEEDED ON THE SAME ASSUMPTION IN ITS OPINION, ALTHOUGH ITS
ORDER TO PRODUCE AND ITS CONTEMPT ORDER STATED THAT BOTH RULES 33 AND
34 WERE INVOLVED.  RULE 34 ESTABLISHES A PROCEDURE WHEREBY, UPON MOTION
OF ANY PARTY SHOWING GOOD CAUSE THEREFOR AND UPON NOTICE TO ALL OTHER
PARTIES, THE COURT MAY ORDER ANY PARTY TO PRODUCE AND PERMIT THE
INSPECTION AND COPYING OR PHOTOGRAPHING OF ANY DESIGNATED DOCUMENTS,
ETC., NOT PRIVILEGED, WHICH CONSTITUTE OR CONTAIN EVIDENCE MATERIAL TO
ANY MATTER INVOLVED IN THE ACTION AND WHICH ARE IN HIS POSSESSION,
CUSTODY OR CONTROL.  FN6 

THE CIRCUIT COURT OF APPEALS, HOWEVER, FELT THAT RULE 26 WAS THE
CRUCIAL ONE.  PETITIONER, IT SAID, WAS PROCEEDING BY INTERROGATORIES
AND, IN CONNECTION WITH THOSE INTERROGATORIES, WANTED COPIES OF
MEMORANDA AND STATEMENTS SECURED FROM WITNESSES.  WHILE THE COURT
BELIEVED THAT RULE 33 WAS INVOLVED, AT LEAST AS TO THE DEFENDING TUG
OWNERS, IT STATED THAT THIS RULE COULD NOT BE USED AS THE BASIS FOR
CONDEMNING FORTENBAUGH'S FAILURE TO DISCLOSE OR PRODUCE THE MEMORANDA
AND STATEMENTS, SINCE THE RULE APPLIES ONLY TO INTERROGATORIES
ADDRESSED TO ADVERSE PARTIES, NOT TO THEIR AGENTS OR COUNSEL.  AND RULE
34 WAS SAID TO BE INAPPLICABLE SINCE PETITIONER WAS NOT TRYING TO SEE
AN ORIGINAL DOCUMENT AND TO COPY OR PHOTOGRAPH IT, WITHIN THE SCOPE OF
THAT RULE.  THE COURT THEN CONCLUDED THAT RULE 26 MUST BE THE ONE
REALLY INVOLVED.  THAT PROVIDES THAT THE TESTIMONY OF ANY PERSON,
WHETHER A PARTY OR NOT, MAY BE TAKEN BY ANY PARTY BY DEPOSITION UPON
ORAL EXAMINATION OR WRITTEN INTERROGATORIES FOR THE PURPOSE OF
DISCOVERY OR FOR USE AS EVIDENCE; AND THAT THE DEPONENT MAY BE EXAMINED
REGARDING ANY MATTER, NOT PRIVILEGED, WHICH IS RELEVANT TO THE SUBJECT
MATTER INVOLVED IN THE PENDING ACTION, WHETHER RELATING TO THE CLAIM OR
DEFENSE OF THE EXAMINING PARTY OR OF ANY OTHER PARTY, INCLUDING THE
EXISTENCE, DESCRIPTION, NATURE, CUSTODY, CONDITION AND LOCATION OF ANY
BOOKS, DOCUMENTS OR OTHER TANGIBLE THINGS.  FN7 

THE MATTER IS NOT WITHOUT DIFFICULTY IN LIGHT OF THE EVENTS THAT
TRANSPIRED BELOW.  WE BELIEVE, HOWEVER, THAT PETITIONER WAS PROCEEDING
PRIMARILY UNDER RULE 33.  HE ADDRESSED SIMPLE INTERROGATORIES SOLELY TO
THE INDIVIDUAL TUG OWNERS, THE ADVERSE PARTIES, AS CONTEMPLATED BY THAT
RULE.  HE DID NOT, AND COULD NOT UNDER RULE 33, ADDRESS SUCH
INTERROGATORIES TO THEIR COUNSEL, FORTENBAUGH.  NOR DID HE DIRECT THESE
INTERROGATORIES EITHER TO THE TUG OWNERS OR TO FORTENBAUGH BY WAY OF
DEPOSITION; RULE 26 THUS COULD NOT COME INTO OPERATION.  AND IT DOES
NOT APPEAR FROM THE RECORD THAT PETITIONER FILED A MOTION UNDER RULE 34
FOR A COURT ORDER DIRECTING THE PRODUCTION OF THE DOCUMENTS IN
QUESTION.  INDEED, SUCH AN ORDER COULD NOT HAVE BEEN ENTERED AS TO
FORTENBAUGH SINCE RULE 34, LIKE RULE 33, IS LIMITED TO PARTIES TO THE
PROCEEDING, THEREBY EXCLUDING THEIR COUNSEL OR AGENTS. 

THUS TO THE EXTENT THAT PETITIONER WAS SEEKING THE PRODUCTION OF THE
MEMORANDA AND STATEMENTS GATHERED BY FORTENBAUGH IN THE COURSE OF HIS
ACTIVITIES AS COUNSEL, PETITIONER MISCONCEIVED HIS REMEDY.  RULE 33 DID
NOT PERMIT HIM TO OBTAIN SUCH MEMORANDA AND STATEMENTS AS ADJUNCTS TO
THE INTERROGATORIES ADDRESSED TO THE INDIVIDUAL TUG OWNERS.  A PARTY
CLEARLY CANNOT REFUSE TO ANSWER INTERROGATORIES ON THE GROUND THAT THE
INFORMATION SOUGHT IS SOLELY WITHIN THE KNOWLEDGE OF HIS ATTORNEY.  BUT
THAT IS NOT THIS CASE.  HERE PRODUCTION WAS SOUGHT OF DOCUMENTS
PREPARED BY A PARTY'S ATTORNEY AFTER THE CLAIM HAS ARISEN.  RULE 33
DOES NOT MAKE PROVISION FOR SUCH PRODUCTION, EVEN WHEN SOUGHT IN
CONNECTION WITH PERMISSIBLE INTERROGATORIES.  MOREOVER, SINCE
PETITIONER WAS ALSO FORECLOSED FROM SECURING THEM THROUGH AN ORDER
UNDER RULE 34, HIS ONLY RECOURSE WAS TO TAKE FORTENBAUGH'S DEPOSITION
UNDER RULE 26 AND TO ATTEMPT TO FORCE FORTENBAUGH TO PRODUCE THE
MATERIALS BY USE OF A SUBPOENA DUCES TECUM IN ACCORDANCE WITH RULE 45. 
HOLTZOFF, "INSTRUMENTS OF DISCOVERY UNDER THE FEDERAL RULES OF CIVIL
PROCEDURE," 41 MICH. L. REV. 205, 220.  BUT DESPITE PETITIONER'S FAULTY
CHOICE OF ACTION, THE DISTRICT COURT ENTERED AN ORDER, APPARENTLY UNDER
RULE 34, COMMANDING THE TUG OWNERS AND FORTENBAUGH, AS THEIR AGENT AND
COUNSEL, TO PRODUCE THE MATERIALS IN QUESTION.  THEIR REFUSAL LED TO
THE ANOMALOUS RESULT OF HOLDING THE TUG OWNERS IN CONTEMPT FOR FAILURE
TO PRODUCE THAT WHICH WAS IN THE POSSESSION OF THEIR COUNSEL AND OF
HOLDING FORTENBAUGH IN CONTEMPT FOR FAILURE TO PRODUCE THAT WHICH HE
COULD NOT BE COMPELLED TO PRODUCE UNDER EITHER RULE 33 OR RULE 34. 

BUT, UNDER THE CIRCUMSTANCES, WE DEEM IT UNNECESSARY AND UNWISE TO
REST OUR DECISION UPON THIS PROCEDURAL IRREGULARITY, AN IRREGULARITY
WHICH IS NOT STRONGLY URGED UPON US AND WHICH WAS DISREGARDED IN THE
TWO COURTS BELOW.  IT MATTERS LITTLE AT THIS LATE STAGE WHETHER
FORTENBAUGH FAILS TO ANSWER INTERROGATORIES FILED UNDER RULE 26 OR
UNDER RULE 33 OR WHETHER HE REFUSES TO PRODUCE THE MEMORANDA AND
STATEMENTS PURSUANT TO A SUBPOENA UNDER RULE 45 OR A COURT ORDER UNDER
RULE 34.  THE DEPOSITION-DISCOVERY RULES CREATE INTEGRATED PROCEDURAL
DEVICES.  AND THE BASIC QUESTION AT STAKE IS WHETHER ANY OF THOSE
DEVICES MAY BE USED TO INQUIRE INTO MATERIALS COLLECTED BY AN ADVERSE
PARTY'S COUNSEL IN THE COURSE OF PREPARATION FOR POSSIBLE LITIGATION. 
THE FACT THAT THE PETITIONER MAY HAVE USED THE WRONG METHOD DOES NOT
DESTROY THE MAIN THRUST OF HIS ATTEMPT.  NOR DOES IT RELIEVE US OF THE
RESPONSIBILITY OF DEALING WITH THE PROBLEM RAISED BY THAT ATTEMPT.  IT
WOULD BE INCONSISTENT WITH THE LIBERAL ATMOSPHERE SURROUNDING THESE
RULES TO INSIST THAT PETITIONER NOW GO THROUGH THE EMPTY FORMALITY OF
PURSUING THE RIGHT PROCEDURAL DEVICE ONLY TO REESTABLISH PRECISELY THE
SAME BASIC PROBLEM NOW CONFRONTING US.  WE DO NOT MEAN TO SAY, HOWEVER,
THAT THERE MAY NOT BE SITUATIONS IN WHICH THE FAILURE TO PROCEED IN
ACCORDANCE WITH A SPECIFIC RULE WOULD BE IMPORTANT OR DECISIVE.  BUT IN
THE PRESENT CIRCUMSTANCES, FOR THE PURPOSES OF THIS DECISION, THE
PROCEDURAL IRREGULARITY IS NOT MATERIAL.  HAVING NOTED THE PROPER
PROCEDURE, WE MAY ACCORDINGLY TURN OUR ATTENTION TO THE SUBSTANCE OF
THE UNDERLYING PROBLEM.    IN URGING THAT HE HAS A RIGHT TO INQUIRE
INTO THE MATERIALS SECURED AND PREPARED BY FORTENBAUGH, PETITIONER
EMPHASIZES THAT THE DEPOSITION-DISCOVERY PORTIONS OF THE FEDERAL RULES
OF CIVIL PROCEDURE ARE DESIGNED TO ENABLE THE PARTIES TO DISCOVER THE
TRUE FACTS AND TO COMPEL THEIR DISCLOSURE WHEREVER THEY MAY BE FOUND. 
IT IS SAID THAT INQUIRY MAY BE MADE UNDER THESE RULES, EPITOMIZED BY
RULE 26, AS TO ANY RELEVANT MATTER WHICH IS NOT PRIVILEGED; AND SINCE
THE DISCOVERY PROVISIONS ARE TO BE APPLIED AS BROADLY AND LIBERALLY AS
POSSIBLE, THE PRIVILEGE LIMITATION MUST BE RESTRICTED TO ITS NARROWEST
BOUNDS.  ON THE PREMISE THAT THE ATTORNEY-CLIENT PRIVILEGE IS THE ONE
INVOLVED IN THIS CASE, PETITIONER ARGUES THAT IT MUST BE STRICTLY
CONFINED TO CONFIDENTIAL COMMUNICATIONS MADE BY A CLIENT TO HIS
ATTORNEY.  AND SINCE THE MATERIALS HERE IN ISSUE WERE SECURED BY
FORTENBAUGH FROM THIRD PERSONS RATHER THAN FROM HIS CLIENTS, THE TUG
OWNERS, THE CONCLUSION IS REACHED THAT THESE MATERIALS ARE PROPER
SUBJECTS FOR DISCOVERY UNDER RULE 26. 

AS ADDITIONAL SUPPORT FOR THIS RESULT, PETITIONER CLAIMS THAT TO
PROHIBIT DISCOVERY UNDER THESE CIRCUMSTANCES WOULD GIVE A CORPORATE
DEFENDANT A TREMENDOUS ADVANTAGE IN A SUIT BY AN INDIVIDUAL PLAINTIFF. 
THUS IN A SUIT BY AN INJURED EMPLOYEE AGAINST A RAILROAD OR IN A SUIT
BY AN INSURED PERSON AGAINST AN INSURANCE COMPANY THE CORPORATE
DEFENDANT COULD PULL A DARK VEIL OF SECRECY OVER ALL THE PERTINENT
FACTS IT CAN COLLECT AFTER THE CLAIM ARISES MERELY ON THE ASSERTION
THAT SUCH FACTS WERE GATHERED BY ITS LARGE STAFF OF ATTORNEYS AND CLAIM
AGENTS.  AT THE SAME TIME, THE INDIVIDUAL PLAINTIFF, WHO OFTEN HAS
DIRECT KNOWLEDGE OF THE MATTER IN ISSUE AND HAS NO COUNSEL UNTIL SOME
TIME AFTER HIS CLAIM ARISES COULD BE COMPELLED TO DISCLOSE ALL THE
INTIMATE DETAILS OF HIS CASE.  BY ENDOWING WITH IMMUNITY FROM
DISCLOSURE ALL THAT A LAWYER DISCOVERS IN THE COURSE OF HIS DUTIES, IT
IS SAID, THE RIGHTS OF INDIVIDUAL LITIGANTS IN SUCH CASES ARE DRAINED
OF VITALITY AND THE LAWSUIT BECOMES MORE OF A BATTLE OF DECEPTION THAN
A SEARCH FOR TRUTH. 

BUT FRAMING THE PROBLEM IN TERMS OF ASSISTING INDIVIDUAL PLAINTIFFS
IN THEIR SUITS AGAINST CORPORATE DEFENDANTS IS UNSATISFACTORY. 
DISCOVERY CONCEDEDLY MAY WORK TO THE DISADVANTAGE AS WELL AS TO THE
ADVANTAGE OF INDIVIDUAL PLAINTIFFS.  DISCOVERY, IN OTHER WORDS, IS NOT
A ONE-WAY PROPOSITION.  IT IS AVAILABLE IN ALL TYPES OF CASES AT THE
BEHEST OF ANY PARTY, INDIVIDUAL OR CORPORATE, PLAINTIFF OR DEFENDANT. 
THE PROBLEM THUS FAR TRANSCENDS THE SITUATION CONFRONTING THIS
PETITIONER.  AND WE MUST VIEW THAT PROBLEM IN LIGHT OF THE LIMITLESS
SITUATIONS WHERE THE PARTICULAR KIND OF DISCOVERY SOUGHT BY PETITIONER
MIGHT BE USED. 

WE AGREE, OF COURSE, THAT THE DEPOSITION-DISCOVERY RULES ARE TO BE
ACCORDED A BROAD AND LIBERAL TREATMENT.  NO LONGER CAN THE TIME-HONORED
CRY OF "FISHING EXPEDITION" SERVE TO PRECLUDE A PARTY FROM INQUIRING
INTO THE FACTS UNDERLYING HIS OPPONENT'S CASE.  FN8  MUTUAL KNOWLEDGE
OF ALL THE RELEVANT FACTS GATHERED BY BOTH PARTIES IS ESSENTIAL TO
PROPER LITIGATION.  TO THAT END, EITHER PARTY MAY COMPEL THE OTHER TO
DISGORGE WHATEVER FACTS HE HAS IN HIS POSSESSION.  THE DEPOSITION
DISCOVERY PROCEDURE SIMPLY ADVANCES THE STAGE AT WHICH THE DISCLOSURE
CAN BE COMPELLED FROM THE TIME OF TRIAL TO THE PERIOD PRECEDING IT,
THUS REDUCING THE POSSIBILITY OF SURPRISE.  BUT DISCOVERY, LIKE ALL
MATTERS OF PROCEDURE, HAS ULTIMATE AND NECESSARY BOUNDARIES.  AS
INDICATED BY RULES 30(B) AND (D) AND 31(D), LIMITATIONS INEVITABLY
ARISE WHEN IT CAN BE SHOWN THAT THE EXAMINATION IS BEING CONDUCTED IN
BAD FAITH OR IN SUCH A MANNER AS TO ANNOY, EMBARRASS OR OPPRESS THE
PERSON SUBJECT TO THE INQUIRY.  AND AS RULE 26(B) PROVIDES, FURTHER
LIMITATIONS COME INTO EXISTENCE WHEN THE INQUIRY TOUCHES UPON THE
IRRELEVANT OR ENCROACHES UPON THE RECOGNIZED DOMAINS OF PRIVILEGE. 

WE ALSO AGREE THAT THE MEMORANDA, STATEMENTS AND MENTAL IMPRESSIONS
IN ISSUE IN THIS CASE FALL OUTSIDE THE SCOPE OF THE ATTORNEY-CLIENT
PRIVILEGE AND HENCE ARE NOT PROTECTED FROM DISCOVERY ON THAT BASIS.  IT
IS UNNECESSARY HERE TO DELINEATE THE CONTENT AND SCOPE OF THAT
PRIVILEGE AS RECOGNIZED IN THE FEDERAL COURTS.  FOR PRESENT PURPOSES,
IT SUFFICES TO NOTE THAT THE PROTECTIVE CLOAK OF THIS PRIVILEGE DOES
NOT EXTEND TO INFORMATION WHICH AN ATTORNEY SECURES FROM A WITNESS
WHILE ACTING FOR HIS CLIENT IN ANTICIPATION OF LITIGATION.  NOR DOES
THIS PRIVILEGE CONCERN THE MEMORANDA, BRIEFS, COMMUNICATIONS AND OTHER
WRITINGS PREPARED BY COUNSEL FOR HIS OWN USE IN PROSECUTING HIS
CLIENT'S CASE; AND IT IS EQUALLY UNRELATED TO WRITINGS WHICH REFLECT AN
ATTORNEY'S MENTAL IMPRESSIONS, CONCLUSIONS, OPINIONS OR LEGAL
THEORIES. 

BUT THE IMPROPRIETY OF INVOKING THAT PRIVILEGE DOES NOT PROVIDE AN
ANSWER TO THE PROBLEM BEFORE US.  PETITIONER HAS MADE MORE THAN AN
ORDINARY REQUEST FOR RELEVANT, NON-PRIVILEGED FACTS IN THE POSSESSION
OF HIS ADVERSARIES OR THEIR COUNSEL.  HE HAS SOUGHT DISCOVERY AS OF
RIGHT OF ORAL AND WRITTEN STATEMENTS OF WITNESSES WHOSE IDENTITY IS
WELL KNOWN AND WHOSE AVAILABILITY TO PETITIONER APPEARS UNIMPAIRED.  HE
HAS SOUGHT PRODUCTION OF THESE MATTERS AFTER MAKING THE MOST SEARCHING
INQUIRIES OF HIS OPPONENTS AS TO THE CIRCUMSTANCES SURROUNDING THE
FATAL ACCIDENT, WHICH INQUIRIES WERE SWORN TO HAVE BEEN ANSWERED TO THE
BEST OF THEIR INFORMATION AND BELIEF.  INTERROGATORIES WERE DIRECTED
TOWARD ALL THE EVENTS PRIOR TO, DURING AND SUBSEQUENT TO THE SINKING OF
THE TUG.  FULL AND HONEST ANSWERS TO SUCH BROAD INQUIRIES WOULD
NECESSARILY HAVE INCLUDED ALL PERTINENT INFORMATION GLEANED BY
FORTENBAUGH THROUGH HIS INTERVIEWS WITH THE WITNESSES.  PETITIONER
MAKES NO SUGGESTION, AND WE CANNOT ASSUME, THAT THE TUG OWNERS OR
FORTENBAUGH WERE INCOMPLETE OR DISHONEST IN THE FRAMING OF THEIR
ANSWERS.  IN ADDITION, PETITIONER WAS FREE TO EXAMINE THE PUBLIC
TESTIMONY OF THE WITNESSES TAKEN BEFORE THE UNITED STATES STEAMBOAT
INSPECTORS.  WE ARE THUS DEALING WITH AN ATTEMPT TO SECURE THE
PRODUCTION OF WRITTEN STATEMENTS AND MENTAL IMPRESSIONS CONTAINED IN
THE FILES AND THE MIND OF THE ATTORNEY FORTENBAUGH WITHOUT ANY SHOWING
OF NECESSITY OR ANY INDICATION OR CLAIM THAT DENIAL OF SUCH PRODUCTION
WOULD UNDULY PREJUDICE THE PREPARATION OF PETITIONER'S CASE OR CAUSE
HIM ANY HARDSHIP OR INJUSTICE.  FOR AUGHT THAT APPEARS, THE ESSENCE OF
WHAT PETITIONER SEEKS EITHER HAS BEEN REVEALED TO HIM ALREADY THROUGH
THE INTERROGATORIES OR IS READILY AVAILABLE TO HIM DIRECT FROM THE
WITNESSES FOR THE ASKING. 

THE DISTRICT COURT, AFTER HEARING OBJECTIONS TO PETITIONER'S REQUEST,
COMMANDED FORTENBAUGH TO PRODUCE ALL WRITTEN STATEMENTS OF WITNESSES
AND TO STATE IN SUBSTANCE ANY FACTS LEARNED THROUGH ORAL STATEMENTS OF
WITNESSES TO HIM.  FORTENBAUGH WAS TO SUBMIT ANY MEMORANDA HE HAD MADE
OF THE ORAL STATEMENTS SO THAT THE COURT MIGHT DETERMINE WHAT PORTIONS
SHOULD BE REVEALED TO PETITIONER.  ALL OF THIS WAS ORDERED WITHOUT ANY
SHOWING BY PETITIONER, OR ANY REQUIREMENT THAT HE MAKE A PROPER
SHOWING, OF THE NECESSITY FOR THE PRODUCTION OF ANY OF THIS MATERIAL OR
ANY DEMONSTRATION THAT DENIAL OF PRODUCTION WOULD CAUSE HARDSHIP OR
INJUSTICE.  THE COURT SIMPLY ORDERED PRODUCTION ON THE THEORY THAT THE
FACTS SOUGHT WERE MATERIAL AND WERE NOT PRIVILEGED AS CONSTITUTING
ATTORNEY-CLIENT COMMUNICATIONS. 

IN OUR OPINION, NEITHER RULE 26 NOR ANY OTHER RULE DEALING WITH
DISCOVERY CONTEMPLATES PRODUCTION UNDER SUCH CIRCUMSTANCES.  THAT IS
NOT BECAUSE THE SUBJECT MATTER IS PRIVILEGED OR IRRELEVANT, AS THOSE
CONCEPTS ARE USED IN THESE RULES.  FN9  HERE IS SIMPLY AN ATTEMPT,
WITHOUT PURPORTED NECESSITY OR JUSTIFICATION, TO SECURE WRITTEN
STATEMENTS, PRIVATE MEMORANDA AND PERSONAL RECOLLECTIONS PREPARED OR
FORMED BY AN ADVERSE PARTY'S COUNSEL IN THE COURSE OF HIS LEGAL
DUTIES.  AS SUCH, IT FALLS OUTSIDE THE ARENA OF DISCOVERY AND
CONTRAVENES THE PUBLIC POLICY UNDERLYING THE ORDERLY PROSECUTION AND
DEFENSE OF LEGAL CLAIMS.  NOT EVEN THE MOST LIBERAL OF DISCOVERY
THEORIES CAN JUSTIFY UNWARRANTED INQUIRIES INTO THE FILES AND THE
MENTAL IMPRESSIONS OF AN ATTORNEY. 

HISTORICALLY, A LAWYER IS AN OFFICER OF THE COURT AND IS BOUND TO
WORK FOR THE ADVANCEMENT OF JUSTICE WHILE FAITHFULLY PROTECTING THE
RIGHTFUL INTERESTS OF HIS CLIENTS.  IN PERFORMING HIS VARIOUS DUTIES,
HOWEVER, IT IS ESSENTIAL THAT A LAWYER WORK WITH A CERTAIN DEGREE OF
PRIVACY, FREE FROM UNNECESSARY INTRUSION BY OPPOSING PARTIES AND THEIR
COUNSEL.  PROPER PREPARATION OF A CLIENT'S CASE DEMANDS THAT HE
ASSEMBLE INFORMATION, SIFT WHAT HE CONSIDERS TO BE THE RELEVANT FROM
THE IRRELEVANT FACTS, PREPARE HIS LEGAL THEORIES AND PLAN HIS STRATEGY
WITHOUT UNDUE AND NEEDLESS INTERFERENCE.  THAT IS THE HISTORICAL AND
THE NECESSARY WAY IN WHICH LAWYERS ACT WITHIN THE FRAMEWORK OF OUR
SYSTEM OF JURISPRUDENCE TO PROMOTE JUSTICE AND TO PROTECT THEIR
CLIENTS' INTERESTS.  THIS WORK IS REFLECTED, OF COURSE, IN INTERVIEWS,
STATEMENTS, MEMORANDA, CORRESPONDENCE, BRIEFS, MENTAL IMPRESSIONS,
PERSONAL BELIEFS, AND COUNTLESS OTHER TANGIBLE AND INTANGIBLE WAYS -
APTLY THOUGH ROUGHLY TERMED BY THE CIRCUIT COURT OF APPEALS IN THIS
CASE AS THE "WORK PRODUCT OF THE LAWYER."  WERE SUCH MATERIALS OPEN TO
OPPOSING COUNSEL ON MERE DEMAND, MUCH OF WHAT IS NOW PUT DOWN IN
WRITING WOULD REMAIN UNWRITTEN.  AN ATTORNEY'S THOUGHTS, HERETOFORE
INVIOLATE, WOULD NOT BE HIS OWN.  INEFFICIENCY, UNFAIRNESS AND SHARP
PRACTICES WOULD INEVITABLY DEVELOP IN THE GIVING OF LEGAL ADVICE AND IN
THE PREPARATION OF CASES FOR TRIAL.  THE EFFECT ON THE LEGAL PROFESSION
WOULD BE DEMORALIZING.  AND THE INTERESTS OF THE CLIENTS AND THE CAUSE
OF JUSTICE WOULD BE POORLY SERVED. 

WE DO NOT MEAN TO SAY THAT ALL WRITTEN MATERIALS OBTAINED OR PREPARED
BY AN ADVERSARY'S COUNSEL WITH AN EYE TOWARD LITIGATION ARE NECESSARILY
FREE FROM DISCOVERY IN ALL CASES.  WHERE RELEVANT AND NON-PRIVILEGED
FACTS REMAIN HIDDEN IN AN ATTORNEY'S FILE AND WHERE PRODUCTION OF THOSE
FACTS IS ESSENTIAL TO THE PREPARATION OF ONE'S CASE, DISCOVERY MAY
PROPERLY BE HAD.  SUCH WRITTEN STATEMENTS AND DOCUMENTS MIGHT, UNDER
CERTAIN CIRCUMSTANCES, BE ADMISSIBLE IN EVIDENCE OR GIVE CLUES AS TO
THE EXISTENCE OR LOCATION OF RELEVANT FACTS.  OR THEY MIGHT BE USEFUL
FOR PURPOSES OF IMPEACHMENT OR CORROBORATION.  AND PRODUCTION MIGHT BE
JUSTIFIED WHERE THE WITNESSES ARE NO LONGER AVAILABLE OR CAN BE REACHED
ONLY WITH DIFFICULTY.  WERE PRODUCTION OF WRITTEN STATEMENTS AND
DOCUMENTS TO BE PRECLUDED UNDER SUCH CIRCUMSTANCES, THE LIBERAL IDEALS
OF THE DEPOSITION-DISCOVERY PORTIONS OF THE FEDERAL RULES OF CIVIL
PROCEDURE WOULD BE STRIPPED OF MUCH OF THEIR MEANING.  BUT THE GENERAL
POLICY AGAINST INVADING THE PRIVACY OF AN ATTORNEY'S COURSE OF
PREPARATION IS SO WELL RECOGNIZED AND SO ESSENTIAL TO AN ORDERLY
WORKING OF OUR SYSTEM OF LEGAL PROCEDURE THAT A BURDEN RESTS ON THE ONE
WHO WOULD INVADE THAT PRIVACY TO ESTABLISH ADEQUATE REASONS TO JUSTIFY
PRODUCTION THROUGH A SUBPOENA OR COURT ORDER.  THAT BURDEN, WE BELIEVE,
IS NECESSARILY IMPLICIT IN THE RULES AS NOW CONSTITUTED.  FN10 

RULE 30(B), AS PRESENTLY WRITTEN, GIVES THE TRIAL JUDGE THE REQUISITE
DISCRETION TO MAKE A JUDGMENT AS TO WHETHER DISCOVERY SHOULD BE ALLOWED
AS TO WRITTEN STATEMENTS SECURED FROM WITNESSES.  BUT IN THE INSTANT
CASE THERE WAS NO ROOM FOR THAT DISCRETION TO OPERATE IN FAVOR OF THE
PETITIONER.  NO ATTEMPT WAS MADE TO ESTABLISH ANY REASON WHY
FORTENBAUGH SHOULD BE FORCED TO PRODUCE THE WRITTEN STATEMENTS.  THERE
WAS ONLY A NAKED, GENERAL DEMAND FOR THESE MATERIALS AS OF RIGHT AND A
FINDING BY THE DISTRICT COURT THAT NO RECOGNIZABLE PRIVILEGE WAS
INVOLVED.  THAT WAS INSUFFICIENT TO JUSTIFY DISCOVERY UNDER THESE
CIRCUMSTANCES AND THE COURT SHOULD HAVE SUSTAINED THE REFUSAL OF THE
TUG OWNERS AND FORTENBAUGH TO PRODUCE. 

BUT AS TO ORAL STATEMENTS MADE BY WITNESSES TO FORTENBAUGH, WHETHER
PRESENTLY IN THE FORM OF HIS MENTAL IMPRESSIONS OR MEMORANDA, WE DO NOT
BELIEVE THAT ANY SHOWING OF NECESSITY CAN BE MADE UNDER THE
CIRCUMSTANCES OF THIS CASE SO AS TO JUSTIFY PRODUCTION.  UNDER ORDINARY
CONDITIONS, FORCING AN ATTORNEY TO REPEAT OR WRITE OUT ALL THAT
WITNESSES HAVE TOLD HIM AND TO DELIVER THE ACCOUNT TO HIS ADVERSARY
GIVES RISE TO GRAVE DANGERS OF INACCURACY AND UNTRUSTWORTHINESS.  NO
LEGITIMATE PURPOSE IS SERVED BY SUCH PRODUCTION.  THE PRACTICE FORCES
THE ATTORNEY TO TESTIFY AS TO WHAT HE REMEMBERS OR WHAT HE SAW FIT TO
WRITE DOWN REGARDING WITNESSES' REMARKS.  SUCH TESTIMONY COULD NOT
QUALIFY AS EVIDENCE; AND TO USE IT FOR IMPEACHMENT OR CORROBORATIVE
PURPOSES WOULD MAKE THE ATTORNEY MUCH LESS AN OFFICER OF THE COURT AND
MUCH MORE AN ORDINARY WITNESS.  THE STANDARDS OF THE PROFESSION WOULD
THEREBY SUFFER. 

DENIAL OF PRODUCTION OF THIS NATURE DOES NOT MEAN THAT ANY MATERIAL,
NON-PRIVILEGED FACTS CAN BE HIDDEN FROM THE PETITIONER IN THIS CASE. 
HE NEED NOT BE UNDULY HINDERED IN THE PREPARATION OF HIS CASE, IN THE
DISCOVERY OF FACTS OR IN HIS ANTICIPATION OF HIS OPPONENTS' POSITION. 
SEARCHING INTERROGATORIES DIRECTED TO FORTENBAUGH AND THE TUG OWNERS,
PRODUCTION OF WRITTEN DOCUMENTS AND STATEMENTS UPON A PROPER SHOWING
AND DIRECT INTERVIEWS WITH THE WITNESSES THEMSELVES ALL SERVE TO REVEAL
THE FACTS IN FORTENBAUGH'S POSSESSION TO THE FULLEST POSSIBLE EXTENT
CONSISTENT WITH PUBLIC POLICY.  PETITIONER'S COUNSEL FRANKLY ADMITS
THAT HE WANTS THE ORAL STATEMENTS ONLY TO HELP PREPARE HIMSELF TO
EXAMINE WITNESSES AND TO MAKE SURE THAT HE HAS OVERLOOKED NOTHING. 
THAT IS INSUFFICIENT UNDER THE CIRCUMSTANCES TO PERMIT HIM AN EXCEPTION
TO THE POLICY UNDERLYING THE PRIVACY OF FORTENBAUGH'S PROFESSIONAL
ACTIVITIES.  IF THERE SHOULD BE A RARE SITUATION JUSTIFYING PRODUCTION
OF THESE MATTERS, PETITIONER'S CASE IS NOT OF THAT TYPE.    WE FULLY
APPRECIATE THE WIDE-SPREAD CONTROVERSY AMONG THE MEMBERS OF THE LEGAL
PROFESSION OVER THE PROBLEM RAISED BY THIS CASE.  FN11  IT IS A PROBLEM
THAT RESTS ON WHAT HAS BEEN ONE OF THE MOST HAZY FRONTIERS OF THE
DISCOVERY PROCESS.  BUT UNTIL SOME RULE OR STATUTE DEFINITELY
PRESCRIBES OTHERWISE, WE ARE NOT JUSTIFIED IN PERMITTING DISCOVERY IN A
SITUATION OF THIS NATURE AS A MATTER OF UNQUALIFIED RIGHT.  WHEN RULE
26 AND THE OTHER DISCOVERY RULES WERE ADOPTED, THIS COURT AND THE
MEMBERS OF THE BAR IN GENERAL CERTAINLY DID NOT BELIEVE OR CONTEMPLATE
THAT ALL THE FILES AND MENTAL PROCESSES OF LAWYERS WERE THEREBY OPENED
TO THE FREE SCRUTINY OF THEIR ADVERSARIES.  AND WE REFUSE TO INTERPRET
THE RULES AT THIS TIME SO AS TO REACH SO HARSH AND UNWARRANTED A
RESULT. 

WE THEREFORE AFFIRM THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS. 
AFFIRMED. 

FN1  SEE CASES COLLECTED BY ADVISORY COMMITTEE ON RULES OF CIVIL
PROCEDURE IN ITS REPORT OF PROPOSED AMENDMENTS (JUNE, 1946), PP. 40-47;
5 F.R.D. 433, 457-460.  SEE ALSO 2 MOORE'S FEDERAL PRACTICE (1945 CUM.
SUPP.), SEC. 26.12, PP. 155-159; HOLTZOFF, "INSTRUMENTS OF DISCOVERY
UNDER FEDERAL RULES OF CIVIL PROCEDURE," 41 MICH. L. REV. 205, 210-212;
PIKE AND WILLIS, "FEDERAL DISCOVERY IN OPERATION," 7 UNIV.  OF CHICAGO
L. REV. 297, 301-307. 

FN2  "THE GREAT WEAKNESS OF PLEADING AS A MEANS FOR DEVELOPING AND
PRESENTING ISSUES OF FACT FOR TRIAL LAY IN ITS TOTAL LACK OF ANY MEANS
FOR TESTING THE FACTUAL BASIS FOR THE PLEADER'S ALLEGATIONS AND
DENIALS."  SUNDERLAND, "THE THEORY AND PRACTICE OF PRE-TRIAL
PROCEDURE," 36 MICH. L. REV. 215, 216.  SEE ALSO RAGLAND, DISCOVERY
BEFORE TRIAL (1932), CH. I. 

FN3  2 MOORE'S FEDERAL PRACTICE (1938), SEC. 26.02, PP. 2445-2455. 

FN4  PIKE AND WILLIS, "THE NEW FEDERAL DEPOSITION-DISCOVERY
PROCEDURE," 38 COL. L. REV. 1179, 1436; PIKE, "THE NEW FEDERAL
DEPOSITION-DISCOVERY PROCEDURE AND THE RULES OF EVIDENCE," 34 ILL. L.
REV. 1. 

FN5  RULE 33 READS:  "ANY PARTY MAY SERVE UPON ANY ADVERSE PARTY
WRITTEN INTERROGATORIES TO BE ANSWERED BY THE PARTY SERVED OR, IF THE
PARTY SERVED IS A PUBLIC OR PRIVATE CORPORATION OR A PARTNERSHIP OR
ASSOCIATION, BY ANY OFFICER THEREOF COMPETENT TO TESTIFY IN ITS
BEHALF.  THE INTERROGATORIES SHALL BE ANSWERED SEPARATELY AND FULLY IN
WRITING UNDER OATH.  THE ANSWERS SHALL BE SIGNED BY THE PERSON MAKING
THEM; AND THE PARTY UPON WHOM THE INTERROGATORIES HAVE BEEN SERVED
SHALL SERVE A COPY OF THE ANSWERS ON THE PARTY SUBMITTING THE
INTERROGATORIES WITHIN 15 DAYS AFTER THE DELIVERY OF THE
INTERROGATORIES, UNLESS THE COURT, ON MOTION AND NOTICE AND FOR GOOD
CAUSE SHOWN, ENLARGES OR SHORTENS THE TIME.  OBJECTIONS TO ANY
INTERROGATORIES MAY BE PRESENTED TO THE COURT WITHIN 10 DAYS AFTER
SERVICE THEREOF, WITH NOTICE AS IN CASE OF A MOTION; AND ANSWERS SHALL
BE DEFERRED UNTIL THE OBJECTIONS ARE DETERMINED, WHICH SHALL BE AT AS
EARLY A TIME AS IS PRACTICABLE.  NO PARTY MAY, WITHOUT LEAVE OF COURT,
SERVE MORE THAN ONE SET OF INTERROGATORIES TO BE ANSWERED BY THE SAME
PARTY." 

FN6  RULE 34 PROVIDES:  "UPON MOTION OF ANY PARTY SHOWING GOOD CAUSE
THEREFOR AND UPON NOTICE TO ALL OTHER PARTIES, 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 MATERIAL TO ANY MATTER INVOLVED IN THE
ACTION 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 RELEVANT
OBJECT OR OPERATION THEREON.  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." 

FN7  THE RELEVANT PORTIONS OF RULE 26 PROVIDE AS FOLLOWS: 

"(A)  WHEN DEPOSITIONS MAY BE TAKEN.  BY LEAVE OF COURT AFTER
JURISDICTION HAS BEEN OBTAINED OVER ANY DEFENDANT OR OVER PROPERTY
WHICH IS THE SUBJECT OF THE ACTION OR WITHOUT SUCH LEAVE AFTER AN
ANSWER HAS BEEN SERVED, THE TESTIMONY OF ANY PERSON, WHETHER A PARTY OR
NOT, MAY BE TAKEN AT THE INSTANCE OF ANY PARTY BY DEPOSITION UPON ORAL
EXAMINATION OR WRITTEN INTERROGATORIES FOR THE PURPOSE OF DISCOVERY OR
FOR USE AS EVIDENCE IN THE ACTION OR FOR BOTH PURPOSES.  THE ATTENDANCE
OF WITNESSES MAY BE COMPELLED BY THE USE OF SUBPOENA AS PROVIDED IN
RULE 45.  DEPOSITIONS SHALL BE TAKEN ONLY IN ACCORDANCE WITH THESE
RULES.  THE DEPOSITION OF A PERSON CONFINED IN PRISON MAY BE TAKEN ONLY
BY LEAVE OF COURT ON SUCH TERMS AS THE COURT PRESCRIBES. 

"(B)  SCOPE OF EXAMINATION.  UNLESS OTHERWISE ORDERED BY THE COURT AS
PROVIDED BY RULE 30(B) OR (D), THE DEPONENT MAY BE EXAMINED REGARDING
ANY MATTER, NOT PRIVILEGED, WHICH IS RELEVANT TO THE SUBJECT MATTER
INVOLVED IN THE PENDING ACTION, WHETHER RELATING TO THE CLAIM OR
DEFENSE OF THE EXAMINING PARTY OR TO THE CLAIM OR DEFENSE OF ANY OTHER
PARTY, INCLUDING THE EXISTENCE, DESCRIPTION, NATURE, CUSTODY,
CONDITION, AND LOCATION OF ANY BOOKS, DOCUMENTS, OR OTHER TANGIBLE
THINGS AND THE IDENTITY AND LOCATION OF PERSONS HAVING KNOWLEDGE OF
RELEVANT FACTS." 

FN8  "ONE OF THE CHIEF ARGUMENTS AGAINST THE 'FISHING EXPEDITION'
OBJECTION IS THE IDEA THAT DISCOVERY IS MUTUAL - THAT WHILE A PARTY MAY
HAVE TO DISCLOSE HIS CASE, HE CAN AT THE SAME TIME TIE HIS OPPONENT
DOWN TO A DEFINITE POSITION."  PIKE AND WILLIS, "FEDERAL DISCOVERY IN
OPERATION," 7 UNIV.  OF CHICAGO L. REV. 297, 303. 

FN9  THE ENGLISH COURTS HAVE DEVELOPED THE CONCEPT OF PRIVILEGE TO
INCLUDE ALL DOCUMENTS PREPARED BY OR FOR COUNSEL WITH A VIEW TO
LITIGATION.  "ALL DOCUMENTS WHICH ARE CALLED INTO EXISTENCE FOR THE
PURPOSE - BUT NOT NECESSARILY THE SOLE PURPOSE - OF ASSISTING THE
DEPONENT OR HIS LEGAL ADVISERS IN ANY ACTUAL OR ANTICIPATED LITIGATION
ARE PRIVILEGED FROM PRODUCTION.... THUS ALL PROOFS, BRIEFS, DRAFT
PLEADINGS, ETC., ARE PRIVILEGED; BUT NOT COUNSEL'S INDORSEMENT ON THE
OUTSIDE OF HIS BRIEF  ..., NOR ANY DEPOSITION OR NOTES OF EVIDENCE
GIVEN PUBLICLY IN OPEN COURT....  SO ARE ALL PAPERS PREPARED BY ANY
AGENT OF THE PARTY BONA FIDE FOR THE USE OF HIS SOLICITOR FOR THE
PURPOSES OF THE ACTION, WHETHER IN FACT SO USED OR NOT....  REPORTS BY
A COMPANY'S SERVANT, IF MADE IN THE ORDINARY COURSE OF ROUTINE, ARE NOT
PRIVILEGED, EVEN THOUGH IT IS DESIRABLE THAT THE SOLICITOR SHOULD HAVE
THEM AND THEY ARE SUBSEQUENTLY SENT TO HIM; BUT IF THE SOLICITOR HAS
REQUESTED THAT SUCH DOCUMENTS SHALL ALWAYS BE PREPARED FOR HIS USE AND
THIS WAS ONE OF THE REASONS WHY THEY WERE PREPARED, THEY NEED NOT BE
DISCLOSED."  ODGERS ON PLEADING AND PRACTICE (12TH ED., 1939), P. 264. 

SEE ORDER 31, RULE 1, OF THE RULES OF THE SUPREME COURT, 1883, SET
FORTH IN THE ANNUAL PRACTICE, 1945, P. 519, AND THE DISCUSSION
FOLLOWING THAT RULE.  FOR A COMPILATION OF THE ENGLISH CASES ON THE
MATTER SEE 8 WIGMORE ON EVIDENCE (3D ED., 1940), SEC. 2319, PP. 618
622, NOTES. 

FN10  RULE 34 IS EXPLICIT IN ITS REQUIREMENTS THAT A PARTY SHOW GOOD
CAUSE BEFORE OBTAINING A COURT ORDER DIRECTING ANOTHER PARTY TO PRODUCE
DOCUMENTS.  SEE REPORT OF PROPOSED AMENDMENTS BY ADVISORY COMMITTEE ON
RULES OF CIVIL PROCEDURE (JUNE, 1946); 5 F.R.D. 433. 

FN11  SEE REPORT OF PROPOSED AMENDMENTS BY ADVISORY COMMITTEE ON
RULES OF CIVIL PROCEDURE (JUNE, 1946), PP. 44-47; 5 F.R.D. 433, 459
460; DISCOVERY PROCEDURE SYMPOSIUM BEFORE THE 1946 CONFERENCE OF THE
THIRD UNITED STATES CIRCUIT COURT OF APPEALS, 5 F.R.D. 403; ARMSTRONG,
"REPORT OF THE ADVISORY COMMITTEE ON FEDERAL RULES OF CIVIL PROCEDURE
RECOMMENDING AMENDMENTS," 5 F.R.D. 339, 353-357. 

MR. JUSTICE JACKSON, CONCURRING. 

THE NARROW QUESTION IN THIS CASE CONCERNS ONLY ONE OF THIRTY-NINE
INTERROGATORIES WHICH DEFENDANTS AND THEIR COUNSEL REFUSED TO ANSWER. 
AS THERE WAS PERSISTENCE IN REFUSAL AFTER THE COURT ORDERED THEM TO
ANSWER IT, COUNSEL AND CLIENTS WERE COMMITTED TO JAIL BY THE DISTRICT
COURT UNTIL THEY SHOULD PURGE THEMSELVES OF CONTEMPT. 

THE INTERROGATORY ASKED WHETHER STATEMENTS WERE TAKEN FROM THE CREWS
OF THE TUGS INVOLVED IN THE ACCIDENT, OR OF ANY OTHER VESSEL, AND
DEMANDED "ATTACH HERETO EXACT COPIES OF ALL SUCH STATEMENTS IF IN
WRITING, AND IF ORAL, SET FORTH IN DETAIL THE EXACT PROVISIONS OF ANY
SUCH ORAL STATEMENTS OR REPORTS."  THE QUESTION IS SIMPLY WHETHER SUCH
A DEMAND IS AUTHORIZED BY THE RULES RELATING TO VARIOUS ASPECTS OF
"DISCOVERY." 

THE PRIMARY EFFECT OF THE PRACTICE ADVOCATED HERE WOULD BE ON THE
LEGAL PROFESSION ITSELF.  BUT IT TOO OFTEN IS OVERLOOKED THAT THE
LAWYER AND THE LAW OFFICE ARE INDISPENSABLE PARTS OF OUR ADMINISTRATION
OF JUSTICE.  LAW-ABIDING PEOPLE CAN GO NOWHERE ELSE TO LEARN THE EVER
CHANGING AND CONSTANTLY MULTIPLYING RULES BY WHICH THEY MUST BEHAVE AND
TO OBTAIN REDRESS FOR THEIR WRONGS.  THE WELFARE AND TONE OF THE LEGAL
PROFESSION IS THEREFORE OF PRIME CONSEQUENCE TO SOCIETY, WHICH WOULD
FEEL THE CONSEQUENCES OF SUCH A PRACTICE AS PETITIONER URGES
SECONDARILY BUT CERTAINLY. 

"DISCOVERY" IS ONE OF THE WORKING TOOLS OF THE LEGAL PROFESSION.  IT
TRACES BACK TO THE EQUITY BILL OF DISCOVERY IN ENGLISH CHANCERY
PRACTICE AND SEEMS TO HAVE HAD A FORERUNNER IN CONTINENTAL PRACTICE. 
SEE RAGLAND, DISCOVERY BEFORE TRIAL (1932) 13-16.  SINCE 1848 WHEN THE
DRAFTSMEN OF NEW YORK'S CODE OF PROCEDURE RECOGNIZED THE IMPORTANCE OF
A BETTER SYSTEM OF DISCOVERY, THE IMPETUS TO EXTEND AND EXPAND
DISCOVERY, AS WELL AS THE OPPOSITION TO IT, HAS COME FROM WITHIN THE
BAR ITSELF.  IT HAPPENS IN THIS CASE THAT IT IS THE PLAINTIFF'S
ATTORNEY WHO DEMANDS SUCH UNPRECEDENTED LATITUDE OF DISCOVERY AND,
STRANGELY ENOUGH, AMICUS BRIEFS IN HIS SUPPORT HAVE BEEN FILED BY
SEVERAL LABOR UNIONS REPRESENTING PLAINTIFFS AS A CLASS.  IT IS THE
HISTORY OF THE MOVEMENT FOR BROADER DISCOVERY, HOWEVER, THAT IN ACTUAL
EXPERIENCE THE CHIEF OPPOSITION TO ITS EXTENSION HAS COME FROM LAWYERS
WHO SPECIALIZE IN REPRESENTING PLAINTIFFS, BECAUSE DEFENDANTS HAVE MADE
LIBERAL USE OF IT TO FORCE PLAINTIFFS TO DISCLOSE THEIR CASES IN
ADVANCE.  SEE REPORT OF THE COMMISSION ON THE ADMINISTRATION OF JUSTICE
IN NEW YORK STATE (1934) 330-31; RAGLAND, DISCOVERY BEFORE TRIAL (1932)
35-36.  DISCOVERY IS A TWO-EDGED SWORD AND WE CANNOT DECIDE THIS
PROBLEM ON ANY DOCTRINE OF EXTENDING HELP TO ONE CLASS OF LITIGANTS. 

IT SEEMS CLEAR AND LONG HAS BEEN RECOGNIZED THAT DISCOVERY SHOULD
PROVIDE A PARTY ACCESS TO ANYTHING THAT IS EVIDENCE IN HIS CASE.  CF.
REPORT OF COMMISSION ON THE ADMINISTRATION OF JUSTICE IN NEW YORK STATE
(1934) 41-42.  IT SEEMS EQUALLY CLEAR THAT DISCOVERY SHOULD NOT NULLIFY
THE PRIVILEGE OF CONFIDENTIAL COMMUNICATION BETWEEN ATTORNEY AND
CLIENT.  BUT THOSE PRINCIPLES GIVE US NO REAL ASSISTANCE HERE BECAUSE
WHAT IS BEING SOUGHT IS NEITHER EVIDENCE NOR IS IT A PRIVILEGED
COMMUNICATION BETWEEN ATTORNEY AND CLIENT. 

TO CONSIDER FIRST THE MOST EXTREME ASPECT OF THE REQUIREMENT IN
LITIGATION HERE, WE FIND IT CALLS UPON COUNSEL, IF HE HAS HAD ANY
CONVERSATIONS WITH ANY OF THE CREWS OF THE VESSELS IN QUESTION OR OF
ANY OTHER, TO "SET FORTH IN DETAIL THE EXACT PROVISION OF ANY SUCH ORAL
STATEMENTS OR REPORTS."  THUS THE DEMAND IS NOT FOR THE PRODUCTION OF A
TRANSCRIPT IN EXISTENCE BUT CALLS FOR THE CREATION OF A WRITTEN
STATEMENT NOT IN BEING.  BUT THE STATEMENT BY COUNSEL OF WHAT A WITNESS
TOLD HIM IS NOT EVIDENCE WHEN WRITTEN.  PLAINTIFF COULD NOT INTRODUCE
IT TO PROVE HIS CASE.  WHAT, THEN, IS THE PURPOSE SOUGHT TO BE SERVED
BY DEMANDING THIS OF ADVERSE COUNSEL? 

COUNSEL FOR THE PETITIONER CANDIDLY SAID ON ARGUMENT THAT HE WANTED
THIS INFORMATION TO HELP PREPARE HIMSELF TO EXAMINE WITNESSES, TO MAKE
SURE HE OVERLOOKED NOTHING.  HE BASES HIS CLAIM TO IT IN HIS BRIEF ON
THE VIEW THAT THE RULES WERE TO DO AWAY WITH THE OLD SITUATION WHERE A
LAW SUIT DEVELOPED INTO "A BATTLE OF WITS BETWEEN COUNSEL."  BUT A
COMMON LAW TRIAL IS AND ALWAYS SHOULD BE AN ADVERSARY PROCEEDING. 
DISCOVERY WAS HARDLY INTENDED TO ENABLE A LEARNED PROFESSION TO PERFORM
ITS FUNCTIONS EITHER WITHOUT WITS OR ON WITS BORROWED FROM THE
ADVERSARY. 

THE REAL PURPOSE AND THE PROBABLE EFFECT OF THE PRACTICE ORDERED BY
THE DISTRICT COURT WOULD BE TO PUT TRIALS ON A LEVEL EVEN LOWER THAN A
"BATTLE OF WITS."  I CAN CONCEIVE OF NO PRACTICE MORE DEMORALIZING TO
THE BAR THAN TO REQUIRE A LAWYER TO WRITE OUT AND DELIVER TO HIS
ADVERSARY AN ACCOUNT OF WHAT WITNESSES HAVE TOLD HIM.  EVEN IF HIS
RECOLLECTION WERE PERFECT, THE STATEMENT WOULD BE HIS LANGUAGE,
PERMEATED WITH HIS INFERENCES.  EVERY ONE WHO HAS TRIED IT KNOWS THAT
IT IS ALMOST IMPOSSIBLE SO FAIRLY TO RECORD THE EXPRESSIONS AND
EMPHASIS OF A WITNESS THAT WHEN HE TESTIFIES IN THE ENVIRONMENT OF THE
COURT AND UNDER THE INFLUENCE OF THE LEADING QUESTION THERE WILL NOT BE
DEPARTURES IN SOME RESPECTS.  WHENEVER THE TESTIMONY OF THE WITNESS
WOULD DIFFER FROM THE "EXACT" STATEMENT THE LAWYER HAD DELIVERED, THE
LAWYER'S STATEMENT WOULD BE WHIPPED OUT TO IMPEACH THE WITNESS. 
COUNSEL PRODUCING HIS ADVERSARY'S "INEXACT" STATEMENT COULD LOSE
NOTHING BY SAYING, "HERE IS A CONTRADICTION, GENTLEMEN OF THE JURY.  I
DO NOT KNOW WHETHER IT IS MY ADVERSARY OR HIS WITNESS WHO IS NOT
TELLING THE TRUTH, BUT ONE IS NOT."  OF COURSE, IF THIS PRACTICE WERE
ADOPTED, THAT SCENE WOULD BE REPEATED OVER AND OVER AGAIN.  THE LAWYER
WHO DELIVERS SUCH STATEMENTS OFTEN WOULD FIND HIMSELF BRANDED A
DECEIVER AFRAID TO TAKE THE STAND TO SUPPORT HIS OWN VERSION OF THE
WITNESS'S CONVERSATION WITH HIM, OR ELSE HE WILL HAVE TO GO ON THE
STAND TO DEFEND HIS OWN CREDIBILITY - PERHAPS AGAINST THAT OF HIS CHIEF
WITNESS, OR POSSIBLY EVEN HIS CLIENT.    EVERY LAWYER DISLIKES TO TAKE
THE WITNESS STAND AND WILL DO SO ONLY FOR GRAVE REASONS.  THIS IS
PARTLY BECAUSE IT IS NOT HIS ROLE; HE IS ALMOST INVARIABLY A POOR
WITNESS.  BUT HE STEPS OUT OF PROFESSIONAL CHARACTER TO DO IT.  HE
REGRETS IT; THE PROFESSION DISCOURAGES IT.  BUT THE PRACTICE ADVOCATED
HERE IS ONE WHICH WOULD FORCE HIM TO BE A WITNESS, NOT AS TO WHAT HE
HAS SEEN OR DONE BUT AS TO OTHER WITNESSES' STORIES, AND NOT BECAUSE HE
WANTS TO DO SO BUT IN SELF-DEFENSE. 

AND WHAT IS THE LAWYER TO DO WHO HAS INTERVIEWED ONE WHOM HE BELIEVES
TO BE A BIASED, LYING OR HOSTILE WITNESS TO GET HIS UNFAVORABLE
STATEMENTS AND KNOW WHAT TO MEET?  HE MUST RECORD AND DELIVER SUCH
STATEMENTS EVEN THOUGH HE WOULD NOT VOUCH FOR THE CREDIBILITY OF THE
WITNESS BY CALLING HIM.  PERHAPS THE OTHER SIDE WOULD NOT WANT TO CALL
HIM EITHER, BUT THE ATTORNEY IS OPEN TO THE CHARGE OF SUPPRESSING
EVIDENCE AT THE TRIAL IF HE FAILS TO CALL SUCH A HOSTILE WITNESS EVEN
THOUGH HE NEVER REGARDED HIM AS RELIABLE OR TRUTHFUL. 

HAVING BEEN SUPPLIED THE NAMES OF THE WITNESSES, PETITIONER'S LAWYER
GIVES NO REASON WHY HE CANNOT INTERVIEW THEM HIMSELF.  IF AN EMPLOYEE
WITNESS REFUSES TO TELL HIS STORY, HE, TOO, MAY BE EXAMINED UNDER THE
RULES.  HE MAY BE COMPELLED ON DISCOVERY, AS FULLY AS ON THE TRIAL, TO
DISCLOSE HIS VERSION OF THE FACTS.  BUT THAT IS HIS OWN DISCLOSURE - IT
CAN BE USED TO IMPEACH HIM IF HE CONTRADICTS IT AND SUCH A DEPOSITION
IS NOT USEFUL TO PROMOTE AN UNSEEMLY DISAGREEMENT BETWEEN THE WITNESS
AND THE COUNSEL IN THE CASE. 

IT IS TRUE THAT THE LITERAL LANGUAGE OF THE RULES WOULD ADMIT OF AN
INTERPRETATION THAT WOULD SUSTAIN THE DISTRICT COURT'S ORDER.  SO THE
LITERAL LANGUAGE OF THE ACT OF CONGRESS WHICH MAKES "ANY WRITING OR
RECORD  ...  MADE AS A MEMORANDUM OR RECORD OF ANY  ...  OCCURRENCE, OR
EVENT" ADMISSIBLE AS EVIDENCE, WOULD HAVE ALLOWED THE RAILROAD COMPANY
TO PUT ITS ENGINEER'S ACCIDENT STATEMENTS IN EVIDENCE.  CF. PALMER V.
HOFFMAN, 318 U.S. 109, 111.  BUT ALL SUCH PROCEDURAL MEASURES HAVE A
BACKGROUND OF CUSTOM AND PRACTICE WHICH WAS ASSUMED BY THOSE WHO WROTE
AND SHOULD BE BY THOSE WHO APPLY THEM.  WE REVIEWED THE BACKGROUND OF
THE ACT AND THE CONSEQUENCES ON THE TRIAL OF NEGLIGENCE CASES OF
ALLOWING RAILROADS AND OTHERS TO PUT IN THEIR STATEMENTS AND THUS TO
SHIELD THE CREW FROM CROSS-EXAMINATION.  WE SAID, "SUCH A MAJOR CHANGE
WHICH OPENS WIDE THE DOOR TO AVOIDANCE OF CROSSEXAMINATION SHOULD NOT
BE LEFT TO IMPLICATION."  318 U.S. AT 114.  WE POINTED OUT THAT THERE,
AS HERE, THE "SEVERAL HUNDRED YEARS OF HISTORY BEHIND THE ACT  ...
INDICATE THE NATURE OF THE REFORMS WHICH IT WAS DESIGNED TO EFFECT." 
318 U.S. AT 115.  WE REFUSED TO APPLY IT BEYOND THAT POINT.  WE SHOULD
FOLLOW THE SAME COURSE OF REASONING HERE.  CERTAINLY NOTHING IN THE
TRADITION OR PRACTICE OF DISCOVERY UP TO THE TIME OF THESE RULES WOULD
HAVE SUGGESTED THAT THEY WOULD AUTHORIZE SUCH A PRACTICE AS HERE
PROPOSED. 

THE QUESTION REMAINS AS TO SIGNED STATEMENTS OR THOSE WRITTEN BY
WITNESSES.  SUCH STATEMENTS ARE NOT EVIDENCE FOR THE DEFENDANT.  PALMER
V. HOFFMAN, 318 U.S. 109.  NOR SHOULD I THINK THEY ORDINARILY COULD BE
EVIDENCE FOR THE PLAINTIFF.  BUT SUCH A STATEMENT MIGHT BE USEFUL FOR
IMPEACHMENT OF THE WITNESS WHO SIGNED IT, IF HE IS CALLED AND IF HE
DEPARTS FROM THE STATEMENT.  THERE MIGHT BE CIRCUMSTANCES, TOO, WHERE
IMPOSSIBILITY OR DIFFICULTY OF ACCESS TO THE WITNESS OR HIS REFUSAL TO
RESPOND TO REQUESTS FOR INFORMATION OR OTHER FACTS WOULD SHOW THAT THE
INTERESTS OF JUSTICE REQUIRE THAT SUCH STATEMENTS BE MADE AVAILABLE. 
PRODUCTION OF SUCH STATEMENTS ARE GOVERNED BY RULE 34 AND ON "SHOWING
GOOD CAUSE THEREFOR" THE COURT MAY ORDER THEIR INSPECTION, COPYING OR
PHOTOGRAPHING.  NO SUCH APPLICATION HAS HERE BEEN MADE; THE DEMAND IS
MADE ON THE BASIS OF RIGHT, NOT ON SHOWING OF CAUSE. 

I AGREE TO THE AFFIRMANCE OF THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS WHICH REVERSED THE DISTRICT COURT. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 
..END :




















ORDER OF CONDUCTORS V. SWAN, 329 U.S. 520 


ARGUED DECEMBER 10, 11, 1946.  - DECIDED JANUARY 13, 1947.  - 152 F.2D
325, AFFIRMED. 


1.  MEMBERS OF THE FIRST AND FOURTH DIVISIONS OF THE NATIONAL RAILROAD
ADJUSTMENT BOARD WERE EVENLY DIVIDED, IN EACH DIVISION, AS TO WHETHER
UNDER THE RAILWAY LABOR ACT THEIR DIVISION HAS JURISDICTION OF DISPUTES
INVOLVING YARDMASTERS.  IT WAS CONCEDED THAT NEITHER THE SECOND NOR THE
THIRD DIVISION HAS JURISDICTION OF SUCH DISPUTES.  NO SETTLEMENT OF
SUCH DISPUTES WAS POSSIBLE IN THESE CIRCUMSTANCES.  HELD:  THE FEDERAL
COURTS HAVE JURISDICTION UNDER JUDICIAL CODE SEC. 274D OF A SUIT BY
INTERESTED PARTIES FOR A DECLARATORY JUDGMENT TO DETERMINE WHICH
DIVISION OF THE BOARD HAS JURISDICTION OF SUCH DISPUTES.  SWITCHMEN'S
UNION V. MEDIATION BOARD, 320 U.S. 297; GENERAL COMMITTEE V. M.-K.-T.R.
CO., 320 U.S. 323; AND GENERAL COMMITTEE V. SOUTHERN PACIFIC CO., 320
U.S. 338, DISTINGUISHED.  P. 524. 

2.  UNDER THE RAILWAY LABOR ACT, YARDMASTERS ARE NOT "YARD-SERVICE
EMPLOYEES" WITHIN THE JURISDICTION OF THE FIRST DIVISION OF THE
NATIONAL RAILROAD ADJUSTMENT BOARD.  PP. 524-529. 

3.  UNDER THE RAILWAY LABOR ACT, DISPUTES INVOLVING YARDMASTERS ARE
EXCLUSIVELY WITHIN THE "CATCH-ALL" JURISDICTION OF THE FOURTH DIVISION
OF THE NATIONAL RAILROAD ADJUSTMENT BOARD.  P. 530. 

4.  WHATEVER PERSUASIVE EFFECT PRIOR ADMINISTRATIVE ADJUDICATIONS ON
THE JURISDICTIONAL ISSUE MAY HAVE HAD IS DESTROYED BY PRESENT AND
PROLONGED ADMINISTRATIVE DEADLOCK ON THIS ISSUE.  P. 529. 

5.  ALTHOUGH AMENDATORY BILLS WHICH WOULD HAVE SPECIFICALLY EXCLUDED
YARDMASTERS FROM THE JURISDICTION OF THE FIRST DIVISION OF THE
ADJUSTMENT BOARD WERE INTRODUCED AND REFERRED TO AN APPROPRIATE
CONGRESSIONAL COMMITTEE, THE FAILURE OF CONGRESS TO AMEND THE STATUTE
IS WITHOUT SIGNIFICANCE FOR PURPOSES OF STATUTORY INTERPRETATION, WHERE
THE COMMITTEE HELD NO HEARINGS AND MADE NO REPORT.  P. 529. 

ORDER OF RAILWAY CONDUCTORS OF AMERICA ET AL. V. SWAN ET AL. 

NO. 63.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT* . 

*TOGETHER WITH NO. 64, WILLIAMS ET AL. V. SWAN ET AL., ALSO ON
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

PETITIONERS, TWO NATIONAL LABOR ORGANIZATIONS, BROUGHT AN ACTION IN
THE DISTRICT COURT UNDER JUDICIAL CODE SEC. 274D AGAINST MEMBERS OF THE
FIRST AND FOURTH DIVISIONS OF THE NATIONAL RAILROAD ADJUSTMENT BOARD,
SEEKING A DECLARATORY JUDGMENT TO THE EFFECT THAT THE FIRST DIVISION
HAS JURISDICTION UNDER THE RAILWAY LABOR ACT OF DISPUTES INVOLVING
YARDMASTERS.  ANOTHER NATIONAL LABOR ORGANIZATION AND TWO RAILROAD
COMPANIES WERE ALLOWED TO INTERVENE.  THE DISTRICT COURT HELD THAT
YARDMASTER DISPUTES ARE WITHIN THE JURISDICTION OF THE FOURTH DIVISION
OF THE BOARD.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  152 F.2D 325. 
THIS COURT GRANTED CERTIORARI.  327 U.S. 776.  AFFIRMED, P. 530. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

OUR ATTENTION HERE IS DIRECTED TO A DETERMINATION OF WHICH DIVISION
OF THE NATIONAL RAILROAD ADJUSTMENT BOARD HAS JURISDICTION OVER
DISPUTES INVOLVING RAILROAD YARDMASTERS.  THE FOUR DIVISIONS OF THE
BOARD AND THEIR RESPECTIVE JURISDICTIONS ARE ESTABLISHED BY SEC. 3,
FIRST (H), OF THE RAILWAY LABOR ACT, AS AMENDED IN 1934.  FN1 

EACH DIVISION OF THE BOARD IS COMPOSED OF AN EQUAL NUMBER OF
REPRESENTATIVES OF CARRIERS AND OF NATIONAL LABOR ORGANIZATIONS.  THE
STATUTE AUTHORIZES THE CARRIERS AND THE NATIONAL LABOR ORGANIZATIONS TO
SELECT THEIR RESPECTIVE REPRESENTATIVES AND TO DESIGNATE THE DIVISION
ON WHICH EACH SUCH REPRESENTATIVE SHALL SERVE.  SEC. 3, FIRST (B) AND
(C).  THE JURISDICTION OF THE DIVISIONS RELATES TO DISPUTES GROWING OUT
OF "GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION OF
AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING CONDITIONS  ..." 
SEC. 3, FIRST (I).  DISPUTES INVOLVING EMPLOYEES IN CERTAIN
SPECIFICALLY DESIGNATED CRAFTS ARE ASSIGNED TO EACH DIVISION; THE
FOURTH DIVISION ALSO HAS A "CATCH-ALL" JURISDICTION OVER ALL DISPUTES
NOT ASSIGNED TO ONE OF THE OTHER THREE DIVISIONS.  APPROPRIATE
PROVISIONS ARE MADE FOR HEARINGS AND FOR THE ENTRY OF AN AWARD, TO BE
FOLLOWED BY AN ORDER DIRECTED TO THE CARRIER IF THE AWARD BE IN FAVOR
OF THE PETITIONER.  IN THE EVENT THAT THE CARRIER FAILS TO COMPLY WITH
THE ORDER, THE PETITIONER OR ANY PERSON FOR WHOSE BENEFIT THE ORDER WAS
MADE MAY SEEK ENFORCEMENT OF THE ORDER IN A FEDERAL DISTRICT COURT. 
SEC. 3, FIRST (P).  IN SUCH SUITS, "THE FINDINGS AND ORDER OF THE
DIVISION OF THE ADJUSTMENT BOARD SHALL BE PRIMA FACIE EVIDENCE OF THE
FACTS THEREIN STATED  ..."  AND THE COURT IS GIVEN POWER TO TAKE SUCH
ACTION AS MAY BE APPROPRIATE TO ENFORCE OR SET ASIDE THE ORDER.  SEE
SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297, 305. 

TWO OF THE NATIONAL LABOR ORGANIZATIONS ARE THE ORDER OF RAILWAY
CONDUCTORS AND THE BROTHERHOOD OF RAILROAD TRAINMEN, PETITIONERS
HEREIN.  THEIR MEMBERSHIP INCLUDES A SMALL PORTION OF THE TOTAL NUMBER
OF RAILROAD YARDMASTERS IN THE COUNTRY, APPROXIMATELY 20% OF THE TOTAL
ON THE BASIS OF THE RAILROAD MILEAGE REPRESENTED.  EACH OF THESE
ORGANIZATIONS HAS ONE REPRESENTATIVE ON THE FIRST DIVISION AND EACH
CONTENDS THAT ALL YARDMASTER DISPUTES MUST BE HEARD SOLELY BY THAT
DIVISION.  BUT THAT CONTENTION IS CONTRADICTED BY THE RAILROAD
YARDMASTERS OF AMERICA, A NATIONAL LABOR ORGANIZATION COMPOSED ALMOST
ENTIRELY OF YARDMASTERS AND CLAIMING TO REPRESENT MORE THAN 70% OF ALL
THE YARDMASTERS IN THE COUNTRY.  THAT ORGANIZATION, WHICH IS AN
INTERVENOR-RESPONDENT HEREIN, HAS FAILED TO PLACE A REPRESENTATIVE ON
ANY OF THE FOUR DIVISIONS.  ALONG WITH CERTAIN OTHER ORGANIZATIONS
REPRESENTING THE SMALL BALANCE OF YARDMASTERS, IT CLAIMS THAT
YARDMASTER DISPUTES LIE WITHIN THE EXCLUSIVE JURISDICTION OF THE FOURTH
DIVISION.  VARIOUS CARRIERS WITH REPRESENTATIVES ON BOTH THE FIRST AND
THE FOURTH DIVISIONS JOIN IN THAT CLAIM. 

THE RESULT OF THIS CONTROVERSY IS A STALEMATE SO FAR AS YARDMASTER
DISPUTES ARE CONCERNED.  THE CARRIER AND THE LABOR MEMBERS OF THE FIRST
DIVISION ARE SPLIT EVENLY, THE CARRIER MEMBERS CLAIMING THAT THE
DIVISION HAS NO JURISDICTION OVER THESE MATTERS.  THE MEMBERS OF THE
FOURTH DIVISION ARE ALSO EVENLY DIVIDED ON THE JURISDICTIONAL QUESTION,
THE LABOR MEMBERS BEING OF THE VIEW THAT YARDMASTER DISPUTES ARE
OUTSIDE THAT DIVISION'S JURISDICTION.  AND SINCE ALL THE PARTIES
CONCEDE THAT NEITHER THE SECOND NOR THE THIRD DIVISION HAS
JURISDICTION, NO SETTLEMENT OF THESE DISPUTES IS POSSIBLE UNDER THE
PRESENT SITUATION.  FN2 

THE ORDER OF RAILWAY CONDUCTORS AND THE BROTHERHOOD OF RAILROAD
TRAINMEN BROUGHT THIS ACTION UNDER 28 U.S.C. SEC. 400(1) TO OBTAIN A
DECLARATORY JUDGMENT TO THE EFFECT THAT THE FIRST DIVISION HAS SOLE
JURISDICTION OVER YARDMASTER DISPUTES.  MEMBERS OF THE FIRST AND FOURTH
DIVISIONS WERE MADE PARTIES DEFENDANT; AND THE RAILROAD YARDMASTERS OF
AMERICA, THE GREAT NORTHERN RAILWAY COMPANY AND THE SOUTHERN PACIFIC
COMPANY WERE ALLOWED TO INTERVENE.  THE DISTRICT COURT, AFTER A
HEARING, HELD THAT YARDMASTER DISPUTES FALL WITHIN THE "CATCH-ALL"
JURISDICTION OF THE FOURTH DIVISION.  THE CIRCUIT COURT OF APPEALS
AGREED.  152 F.2D 325.  WE GRANTED CERTIORARI BECAUSE THE ISSUE RAISED
IS ONE OF IMPORTANCE IN THE ORDERLY ADMINISTRATION OF THE RAILWAY LABOR
ACT.  327 U.S. 776. 

AT THE OUTSTART IT IS IMPORTANT TO NOTE THAT JUDICIAL REVIEW OF THIS
MATTER IS NOT PRECLUDED BY THE PRINCIPLES SET FORTH IN SWITCHMEN'S
UNION V. NATIONAL MEDIATION BOARD, SUPRA, AND COMPANION CASES, GENERAL
COMMITTEE V. M.-K.-T.R. CO., 320 U.S. 323, AND GENERAL COMMITTEE V.
SOUTHERN PACIFIC CO., 320 U.S. 338.  WE ARE DEALING HERE WITH SOMETHING
QUITE DIFFERENT FROM AN ADMINISTRATIVE DETERMINATION WHICH CONGRESS HAS
MADE FINAL AND BEYOND THE REALM OF JUDICIAL SCRUTINY.  WE ARE DEALING
WITH A JURISDICTIONAL FRUSTRATION ON AN ADMINISTRATIVE LEVEL, MAKING
IMPOSSIBLE THE ISSUANCE OF ADMINISTRATIVE ORDERS WHICH CONGRESS
EXPLICITLY HAS OPENED TO REVIEW BY THE COURTS.  UNTIL THAT BASIC
JURISDICTIONAL CONTROVERSY IS SETTLED, THE PROCEDURE CONTEMPLATED BY
SEC. 3 OF THE RAILWAY LABOR ACT REMAINS A DEAD LETTER SO FAR AS
YARDMASTERS ARE CONCERNED AND THE STATUTORY RIGHTS OF SUCH PERSONS
BECOME ATROPHIED.  A DECLARATORY JUDGMENT ACTION IS THEREFORE
APPROPRIATE TO REMOVE SUCH AN ADMINISTRATIVE STAGNATION. 

IN OTHER INSTANCES, WE HAVE LEFT THE PROBLEM OF JURISDICTION TO BE
DETERMINED IN THE FIRST INSTANCE BY THE ADMINISTRATIVE AGENCY.  MYERS
V. BETHLEHEM CORP., 303 U.S. 41.  BUT HERE BOTH THE FIRST AND THE
FOURTH DIVISIONS OF THE BOARD, DUE TO THE EVENLY-MATCHED MEMBERSHIP OF
RAILROAD AND LABOR REPRESENTATIVES, APPEAR HOPELESSLY DIVIDED ON THE
JURISDICTIONAL ISSUE, MAKING A DETERMINATION IMPOSSIBLE.  JUDICIAL
GUIDANCE AT THIS STAGE IS JUSTIFIED AS LONG AS SUCH A CONDITION
EXISTS. 

THE ISSUE IS PRIMARILY ONE OF STATUTORY INTERPRETATION.  THE FIRST
DIVISION IS GIVEN JURISDICTION OVER DISPUTES "INVOLVING TRAIN- AND YARD
SERVICE EMPLOYEES OF CARRIERS; THAT IS, ENGINEERS, FIREMEN, HOSTLERS,
AND OUTSIDE HOSTLER HELPERS, CONDUCTORS, TRAINMEN, AND YARD-SERVICE
EMPLOYEES."  THE FOURTH DIVISION'S JURISDICTION EXTENDS TO DISPUTES
"INVOLVING EMPLOYEES OF CARRIERS DIRECTLY OR INDIRECTLY ENGAGED IN
TRANSPORTATION OF PASSENGERS OR PROPERTY BY WATER, AND ALL OTHER
EMPLOYEES OF CARRIERS OVER WHICH JURISDICTION IS NOT GIVEN TO THE
FIRST, SECOND, AND THIRD DIVISIONS."  IT IS AGREED THAT THE ONLY
POSSIBLE CATEGORY UNDER THE FIRST DIVISION INTO WHICH YARDMASTERS MIGHT
BE PLACED IS "YARD-SERVICE EMPLOYEES."  BUT IF THEY CANNOT BE SO
PLACED, THEY MUST NECESSARILY FALL INTO THE "CATCH-ALL" JURISDICTION OF
THE FOURTH DIVISION.  THE PROBLEM THUS IS TO DETERMINE WHAT CONGRESS
MEANT WHEN IT USED THE TERM "YARD-SERVICE EMPLOYEES." 

THERE IS NO STATUTORY DEFINITION OF "YARD-SERVICE EMPLOYEES."  NOR IS
THE TERM EXPLAINED IN ANY OF THE RELEVANT LEGISLATIVE DEBATES OR
REPORTS; AND IT DERIVES NO MEANING FROM THE STATUTORY POLICY OR
FRAMEWORK.  MOREOVER, IT IS NOT IN COMMON OR GENERAL USAGE OUTSIDE OF
THE RAILROAD WORLD.  IT IS A TECHNICAL TERM FOUND ONLY IN RAILROAD
PARLANCE.  EVIDENCE AS TO THE MEANING ATTACHED TO IT BY THOSE WHO ARE
FAMILIAR WITH SUCH PARLANCE THEREFORE BECOMES RELEVANT IN DETERMINING
THE MEANING OF THE TERM AS USED BY CONGRESS.  SEE O'HARA V. LUCKENBACH
S.S. CO., 269 U.S. 364, 370-371. 

THE PARTIES, ALL OF WHOM ARE WELL ACQUAINTED WITH RAILROAD
TERMINOLOGY, STIPULATED CERTAIN FACTS.  IT WAS AGREED THAT A RAILROAD
YARD IS A SYSTEM OF TRACKS WITHIN DEFINED LIMITS OVER WHICH MOVEMENTS
OF ENGINES AND CARS NOT AUTHORIZED BY TIMETABLE OR TRAIN ORDER MAY BE
MADE, SUBJECT TO PRESCRIBED SIGNALS AND RULES OR SPECIAL INSTRUCTIONS. 
IT WAS FURTHER AGREED THAT THE "YARD-SERVICE EMPLOYEES" OR "YARDMEN"
WORKING IN A YARD PERFORM SUCH FUNCTIONS AS SWITCHING, MAKING AND
BREAKING UP TRAINS, MOVING AND STORING CARS, INSPECTING CARS AND
FREIGHT, REPAIRING CARS, MAINTAINING EQUIPMENT, SENDING AND RECEIVING
MESSAGES, KEEPING RECORDS AND MAKING REPORTS.  AS TO YARDMASTERS, THE
STIPULATION STATED:  "ALL SUCH YARDMEN AND OTHER EMPLOYEES PERFORMING
WORK IN A YARD ARE DIRECTED AND SUPERVISED IN THEIR WORK BY A
YARDMASTER, WITH THE AID, IF NECESSARY, OF ONE OR MORE ASSISTANT
YARDMASTERS.  YARDMASTERS DO NOT AND MAY NOT PERFORM THE WORK OF
YARDMEN AND EMPLOYEES IN TRAIN AND ENGINE SERVICE; THEY MAY PERFORM
SOME CLERICAL WORK, IF THEIR ENTIRE TIME IS NOT TAKEN UP WITH THE
DIRECTION AND SUPERVISION OF YARDMEN AND OTHER EMPLOYEES WORKING IN
YARDS....  IN GENERAL, YARDMASTERS RUN THE YARDS, OF WHICH THEY ARE IN
CHARGE, AND THEY ARE RESPONSIBLE FOR CONDITIONS WITHIN THE SAME. 
NECESSARILY, THEY EXERCISE A SUBSTANTIAL MEASURE OF INDIVIDUAL
INITIATIVE AND RESPONSIBILITY." 

ALL OF THE WITNESSES WHO TESTIFIED AT THE HEARING AGREED THAT
YARDMASTERS ARE FUNCTIONALLY DIFFERENT FROM OTHER EMPLOYEES WORKING IN
YARDS DUE TO THEIR SUPERVISORY ACTIVITIES AND RESPONSIBILITIES.  THE
EVIDENCE ALSO INDICATED THAT YARDMASTERS HAVE SUPERVISION OVER SOME WHO
WORK WITHIN THE YARDS BUT WHO ARE NOT SPOKEN OF AS "YARD-SERVICE
EMPLOYEES," SUCH AS STOREKEEPERS, SECTION MEN AND CLERKS.  ON THE
CRUCIAL POINT, THERE WAS SUBSTANTIAL AGREEMENT AMONG THE WITNESSES THAT
YARDMASTERS ARE NOT COMMONLY DESIGNATED IN RAILROAD PARLANCE AS "YARD
SERVICE EMPLOYEES," THAT TERM BEING RESERVED FOR THE YARDMEN DESCRIBED
IN THE STIPULATION WHO WORK UNDER THE SUPERVISION OF THE YARDMASTERS. 
FN3 

THE DOCUMENTARY EVIDENCE SUBMITTED BY THE PARTIES TENDS TO BEAR OUT
THIS TESTIMONY.  THUS NUMEROUS PAST AWARDS MADE BY THE FIRST AND FOURTH
DIVISIONS SPEAK OF YARDMASTERS AS DISTINCT FROM YARDMEN OR YARD-SERVICE
EMPLOYEES.  FN4  AND THE INTERSTATE COMMERCE COMMISSION, IN MAKING
VARIOUS CLASSIFICATIONS OF RAILROAD EMPLOYEES, RECOGNIZES A CLEAR
DISTINCTION BETWEEN YARDMASTERS AND THOSE OVER WHOM THEY HAVE
SUPERVISION.  FN5  IN ADDITION, OTHER DOCUMENTS INTRODUCED INTO THE
RECORD AND SOURCES TO WHICH THE PARTIES HAVE MADE REFERENCE EITHER SHOW
THE SAME DISTINCTION OR ARE INCONCLUSIVE ON THE MATTER.  FN6 

THE DISTRICT COURT WAS THEREFORE JUSTIFIED IN FINDING AS A FACT THAT
RAILROAD USAGE HAS NEVER INCLUDED YARDMASTERS AND ASSISTANT YARDMASTERS
WITHIN THE MEANING OF THE TERMS "YARD-SERVICE EMPLOYEES" OR "YARDMEN." 
THAT COURT WAS ALSO CORRECT IN CONCLUDING THAT THE HISTORY OF THE
ADJUSTMENT OF DISPUTES PRIOR TO THE AMENDMENT OF THE PRESENT STATUTE IN
1934 AFFORDS NO ASSISTANCE IN RESOLVING THE PROBLEM CONFRONTING US.  AS
POINTED OUT MORE FULLY BY THE CIRCUIT COURT OF APPEALS, 152 F.2D AT 327
328, DISPUTES INVOLVING YARDMASTERS AND DISPUTES INVOLVING YARDSERVICE
EMPLOYEES WERE PREVIOUSLY SUBMITTED TO VARIOUS ADJUSTMENT BOARDS, WHICH
HAD BEEN CREATED BY AGREEMENT, PRIMARILY ON THE BASIS OF MEMBERSHIP IN
SIGNATORY LABOR ORGANIZATIONS.  JURISDICTION WAS NOT THEN GROUNDED, AS
IT IS NOW, ON A CRAFT OR JOB CLASSIFICATION IRRESPECTIVE OF THE LABOR
ORGANIZATION REPRESENTING THE PARTICULAR EMPLOYEES INVOLVED.  HENCE
THERE WAS NO OCCASION GIVING RISE TO A CONSISTENT AND UNEQUIVOCAL
ADMINISTRATIVE INTERPRETATION OF THE TERM "YARD-SERVICE EMPLOYEES" TO
INCLUDE YARDMASTERS - AN INTERPRETATION WHICH, HAD IT EXISTED, MIGHT
HAVE SHED SOME LIGHT ON THE ADOPTION OF THE TERM BY CONGRESS IN 1934. 

PETITIONERS ALSO URGE THAT THE JURISDICTION OF THE FIRST DIVISION
OVER YARDMASTER DISPUTES IS ESTABLISHED BY THE SETTLED ADMINISTRATIVE
ACTION OF THAT DIVISION SINCE ITS CREATION IN 1934.  FN7 THERE IS A
SERIOUS QUESTION WHETHER THE JURISDICTIONAL ISSUE NOW BEFORE US WAS
FULLY CONSIDERED BY THE DIVISION IN MANY OF THE CASES TO WHICH
REFERENCE IS MADE; CERTAINLY NONE OF THE AWARDS DID MORE THAN RECITE
PERFUNCTORILY THAT THE DIVISION HAD JURISDICTION OVER THE PARTICULAR
DISPUTE.  AND NONE OF THE AWARDS INVOLVED THE RAILROAD YARDMASTERS OF
AMERICA, WHICH HAS CONSISTENTLY OBJECTED TO THE ASSUMPTION OF
JURISDICTION BY THE FIRST DIVISION.  FN8  BUT ASIDE FROM THOSE FACTORS,
THE PRESENT AND PROLONGED ADMINISTRATIVE DEADLOCK ON THE JURISDICTIONAL
ISSUE DESTROYS WHATEVER PERSUASIVE EFFECT THESE PRIOR ADJUDICATIONS BY
THE FIRST DIVISION MAY HAVE HAD.  THE ADMINISTRATIVE ACTION HAS BECOME
ANYTHING BUT SETTLED.    FINALLY, PETITIONERS POINT OUT THAT CONGRESS
HAS FAILED TO AMEND SEC. 3, FIRST (H), SO AS SPECIFICALLY TO EXCLUDE
"YARDMASTERS AND OTHER SUBORDINATE OFFICERS" FROM THE JURISDICTION OF
THE FIRST DIVISION, DESPITE THE INTRODUCTION OF TWO BILLS TO THAT
EFFECT IN THE SENATE IN 1940 AND 1941.  FN9  THESE BILLS WERE SENT TO
AN APPROPRIATE COMMITTEE, BUT WERE NEVER REPORTED OUT.  IT DOES NOT
APPEAR WHETHER THE BILLS DIED BECAUSE THEY WERE THOUGHT TO BE
UNNECESSARY OR UNDESIRABLE.  NO HEARINGS WERE HELD; NO COMMITTEE
REPORTS WERE MADE.  UNDER SUCH CIRCUMSTANCES, THE FAILURE OF CONGRESS
TO AMEND THE STATUTE IS WITHOUT MEANING FOR PURPOSES OF STATUTORY
INTERPRETATION. 

WE ACCORDINGLY AGREE WITH THE TWO COURTS BELOW THAT YARDMASTERS ARE
NOT "YARD-SERVICE EMPLOYEES" WITHIN THE JURISDICTION OF THE FIRST
DIVISION OF THE NATIONAL RAILROAD ADJUSTMENT BOARD.  YARDMASTER
DISPUTES FALL EXCLUSIVELY WITHIN THE "CATCH-ALL" JURISDICTION OF THE
FOURTH DIVISION.  AFFIRMED. 

FN1  48 STAT. 1185, 1190-1191; 45 U.S.C. SEC. 153, FIRST (H). 

FN2  A DECREE WAS ENTERED IN THE DISTRICT COURT IN 1938 COMMANDING
THE FOURTH DIVISION TO HEAR AND DETERMINE CERTAIN DISPUTES INVOLVING
YARDMASTERS.  THAT CASE AROSE ON A PETITION FOR MANDAMUS FILED BY THE
RAILROAD YARDMASTERS OF AMERICA AGAINST THE MEMBERS OF THE FOURTH
DIVISION.  AFTER ISSUANCE OF SUMMONS, THE MEMBERS OF THE FOURTH
DIVISION APPEARED AND FILED AN ANSWER STATING THAT THEY WERE OF THE
OPINION THAT THE FOURTH DIVISION DID HAVE JURISDICTION.  THE DECREE WAS
THEN ENTERED WITH THE CONSENT OF THE PARTIES TO THE ACTION, BUT WITHOUT
ARGUMENT AND WITHOUT THE DISTRICT COURT BEING AWARE THAT A PUBLIC
QUESTION WAS INVOLVED AND THAT OTHER PARTIES HAD AN INTEREST IN THE
MATTER.  THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS IN THE
INSTANT CASE HELD THAT THIS 1938 DECREE WAS NOT RES JUDICATA OF THE
ISSUE NOW PRESENTED IN VIEW OF THE CIRCUMSTANCES UNDER WHICH IT WAS
ENTERED. 

FN3  PETITIONERS' SOLE WITNESS TESTIFIED:  "YARDMEN ARE USUALLY MEN
WHO HAVE TO DO WITH THE MAKING UP AND BREAKING UP OF TRAINS, SWITCHING
IN THE YARD, AND SUPERVISING THE WORK OF THE YARDMEN, WHICH WOULD
INCLUDE, IN MY OPINION, YARDMASTERS AND ASSISTANT YARDMASTERS."  BUT
HIS OPINION AS TO YARDMASTERS IN THIS RESPECT WAS BASED UPON HIS
UNDERSTANDING OF THE LAW, NOT UPON HIS OWN USE OR HIS KNOWLEDGE OF THE
USE OF THE TERM "YARD-SERVICE EMPLOYEES."  HE EXPLAINED HIS BELIEF THAT
"EVERY TRIBUNAL THAT HAS DECIDED A DISPUTE FOR MEN ENGAGED IN YARD
SERVICE, SUCH AS YARD ENGINEERS, FIREMEN, HOSTLERS, HOSTLER HELPERS,
ROAD CONDUCTORS, TRAINMEN AND YARDMEN, HAVE ALSO DECIDED CASES FOR
YARDMASTERS AND ASSISTANT YARDMASTERS.  DIVISION 1, SET UP UNDER, BY
AGREEMENT, IN 1918, THE VERY FIRST BOARD IN EXISTENCE, DID THAT.  THE
WESTERN TRAIN SERVICE BOARD, UPON WHICH I SERVED, DID THAT, AS
EVIDENCED BY BOARD DECISIONS SUBMITTED HERE AS AN EXHIBIT." 

THIS WITNESS ALSO STATED THAT YARDMASTERS "FIT MORE NEARLY IN WITH
THE YARD SERVICE EMPLOYEES THAN WITH ANY OTHER CLASS" - A RECOGNITION
THAT YARDMASTERS ARE DIFFERENT IN FACT FROM YARD-SERVICE EMPLOYEES AND
THAT THEY DO NOT FIT PRECISELY WITHIN THAT CATEGORY. 

FN4  SEE NATIONAL RAILROAD ADJUSTMENT BOARD, FIRST DIVISION, AWARD
NO. 1274(JULY 13, 1936), AWARD NO. 1464(OCT.  7, 1936), AWARD NO.
1603(DEC.  14, 1936), AWARD NO. 1648(JAN.  21, 1937), AWARD NO.
1728(FEB.  11, 1937), AWARD NO. 1896(APRIL 15, 1937), AWARD NO.
2065(JULY 16, 1937), AWARD NO. 2364(NOV.  12, 1937), AWARD NO.
4466(JAN.  15, 1940), AWARD NO. 4548(FEB.  8, 1940), AWARD NO.
4584(FEB.  20, 1940), AWARD NO. 5816(JUNE 24, 1941), AWARD NO.
7355(OCT.  15, 1942); FOURTH DIVISION, AWARD NO. 67(JULY 25, 1940). 

FN5  SEE EX PARTE NO. 72(NOV.  24, 1920, UNREPORTED); EX PARTE NO.
106, SIX-HOUR DAY INVESTIGATION, 190 I.C.C. 750.  THE FORMS AND
CLASSIFICATION PLAN TO BE USED IN REPORTING WAGE AND COMPENSATION DATA
OF STEAM RAILROAD EMPLOYEES TO THE UNITED STATES RAILROAD LABOR BOARD
AND THE INTERSTATE COMMERCE COMMISSION PLACE YARDMASTERS UNDER
"SUPERVISORY SKILLED TRADES AND LABOR SERVICE," WHILE THOSE PERFORMING
YARD-SERVICE WORK ARE PLACED UNDER "TRAIN AND ENGINE SERVICE." 

FN6  THUS THE METHOD USED BY THE NATIONAL RAILROAD ADJUSTMENT BOARD
IN INDEXING AWARDS OF THE FIRST DIVISION DOES NOT PROVIDE ANY HELPFUL
GUIDE AS TO THE USAGE OF "YARD-SERVICE EMPLOYEES" IN THE RAILROAD
WORLD. 

FN7  SEE CASES CITED IN FOOTNOTE 4, SUPRA. 

FN8  SEE FOOTNOTE 2, SUPRA. 

FN9  S. 4375, 76TH CONG., 3D SESS.; S. 1660, 77TH CONG., 1ST SESS.
BOTH BILLS WERE INTRODUCED BY SENATOR SMITH AT THE REQUEST OF THE
AMERICAN SHORT LINE RAILROAD ASSOCIATION. 

MR. JUSTICE FRANKFURTER. 

AFTER THE FULLEST CONSIDERATION THIS COURT RECENTLY HELD IN TWO CASES
THAT JURISDICTIONAL DISPUTES BETWEEN RAILROAD UNIONS SUBJECT TO THE
RAILWAY LABOR ACT ARE NOT WITHIN JUDICIAL COMPETENCE.  SWITCHMEN'S
UNION V. BOARD, 320 U.S. 297; GENERAL COMMITTEE V. M.-K.-T.R. CO., 320
U.S. 323.  THE DECISION IN THOSE CASES DERIVED FROM THE FACT THAT
CONGRESS "HAD NOT EXPRESSLY AUTHORIZED JUDICIAL REVIEW" AND THE
HISTORY, THE SETTING, AND THE IMPLICATIONS OF RAILWAY LABOR
CONTROVERSIES COUNSELED AGAINST INFERRING JUDICIAL REVIEW.  HERE WE
HAVE A CONTROVERSY BETWEEN TWO DIVISIONS OF THE NATIONAL RAILROAD
ADJUSTMENT BOARD AS TO THE DISPUTES OVER WHICH THEY RESPECTIVELY HAVE
JURISDICTION.  THIS CONTROVERSY, HOWEVER, ENTAILS CONSIDERATION OF
TECHNICAL PROBLEMS IN THE RAILROAD WORLD AND CONSEQUENCES IN CONSTRUING
THE DISTRIBUTION OF AUTHORITY AMONG THE DIVISIONS OF THE ADJUSTMENT
BOARD FOR WHICH JUDICIAL REVIEW SEEMS NO MORE APPROPRIATE THAN IT DID
TO SETTLE JURISDICTIONAL CONFLICTS BETWEEN RAILROAD BROTHERHOODS.  NOT
FINDING ANY COMMAND IN THE STATUTE FOR JUDICIAL REVIEW OF THIS
CONTROVERSY, IT SEEMS TO ME, THEREFORE, APPROPRIATE TO LEAVE IT TO THE
MEDIATORY RESOURCES OF THE RAILWAY LABOR ACT.  IF IT BE SAID THAT THUS
FAR DEADLOCK HAS RESULTED, IT DOES NOT FOLLOW THAT IT WILL CONTINUE, IF
THE COURT KEEPS HANDS OFF.  IN ANY EVENT, BECAUSE MEDIATORY MACHINERY
MAY NOT BE EFFECTIVE IS NOT A SUFFICIENT REASON FOR JUDICIAL
INTERVENTION, UNLESS THE DIRECTION OF CONGRESS IS MUCH MORE CLEAR THEN
I FIND IT IN THE RAILWAY LABOR ACT.  THIS VIEW IS REINFORCED BY THE
FACT THAT THE DECISION OF THE COURT MAY BE NO MORE THAN AN ADVISORY
OPINION.  MY DOUBTS HAVE NOT COMMENDED THEMSELVES TO THE COURT, BUT
SINCE I AM NOT ALONE IN ENTERTAINING THEM IT SEEMED TO ME THAT THEY
SHOULD BE EXPRESSED. 
..END :













KATZINGER CO. V. CHICAGO MFG. CO., 329 U.S. 394 


NOS. 70 AND 71.  ARGUED NOVEMBER 14, 15, 1946.  - DECIDED JANUARY 6,
1947.  - 153 F.2D 149, AFFIRMED. 


A PATENT-LICENSING AGREEMENT PROVIDED THAT THE LICENSEE SHOULD SELL
THE LICENSED PRODUCTS AT PRICES FIXED BY THE LICENSOR AND SHOULD BE
ESTOPPED FROM DENYING THE VALIDITY OF THE PATENT.  THE PRODUCTS WERE
SOLD WIDELY IN INTERSTATE COMMERCE.  A CONTROVERSY HAVING ARISEN AS TO
THE COVERAGE OF CERTAIN PRODUCTS BY THE PATENT, THE LICENSING AGREEMENT
WAS TERMINATED, THE LICENSEE SUED FOR A DECLARATORY JUDGMENT DECLARING
THE PATENT INVALID, AND THE LICENSOR COUNTERCLAIMED FOR UNPAID
ROYALTIES OR DAMAGES FOR INFRINGEMENT.  THE PATENT WAS HELD INVALID. 
HELD: 

1.  IN THESE CIRCUMSTANCES, THE LICENSEE IS NOT ESTOPPED TO CHALLENGE
THE VALIDITY OF THE PATENT.  SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC
CO., 317 U.S. 173; SCOTT PAPER CO. V. MARCALUS MFG. CO., 326 U.S. 249. 
PP. 398-401. 

2.  THE LICENSEE'S OBLIGATIONS TO PAY ROYALTIES AND TO SELL AT PRICES
FIXED BY THE LICENSOR ARE NOT SEVERABLE.  P. 401. 

3.  SINCE THE ROYALTIES HERE CLAIMED ACCRUED, IF THEY ACCRUED AT ALL,
PRIOR TO THE TIME THE LICENSING AGREEMENT TERMINATED, THE FACT OF
SUBSEQUENT TERMINATION DOES NOT FREE THE PROMISE TO PAY ROYALTIES FROM
THE TAINT OF THE PRICE-FIXING PROVISION.  P. 401. 

4.  THE ALLEGED FACT THAT THE LICENSEE SUGGESTED THE PRICE-FIXING
PROVISION IN THE LICENSING AGREEMENT DOES NOT ESTOP HIM FROM
CHALLENGING ITS VALIDITY AS BEING IN VIOLATION OF THE ANTI-TRUST LAWS. 
P. 401. 

5.  THE SPECIFIC CONTRACT NOT TO CHALLENGE THE VALIDITY OF THE PATENT
CANNOT OVERRIDE CONGRESSIONAL POLICY AGAINST CONTRACTS IN RESTRAINT OF
INTERSTATE TRADE ANY MORE THAN CAN AN IMPLIED ESTOPPEL.  P. 402. 

EDWARD KATZINGER CO. V. CHICAGO METALLIC MANUFACTURING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

IN A SUIT BY A LICENSEE FOR A DECLARATORY JUDGMENT DECLARING A PATENT
INVALID, THE LICENSOR COUNTERCLAIMED FOR UNPAID ROYALTIES OR DAMAGES
FOR INFRINGEMENT.  THE DISTRICT COURT HELD THAT THE LICENSEE WAS
ESTOPPED TO CHALLENGE THE VALIDITY OF THE PATENT.  THE CIRCUIT COURT OF
APPEALS REVERSED AND REMANDED TO THE DISTRICT COURT TO PASS ON THE
VALIDITY OF THE PATENT.  139 F.2D 291.  THE DISTRICT COURT HELD THE
PATENT INVALID.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  153 F.2D 149. 
THIS COURT GRANTED CERTIORARI.  328 U.S. 826.  AFFIRMED, P. 402. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER THE DEFENDANT, IN A SUIT TO RECOVER
ROYALTIES ONLY UNDER A TERMINATED PATENT LICENSE AGREEMENT CONTAINING
PRICE-FIXING PROVISIONS, CAN CHALLENGE THE VALIDITY OF THE PATENT
DESPITE A COVENANT IN THE LICENSE CONTRACT THAT HE WOULD NOT DO SO. 

THE PETITIONER, EDWARD KATZINGER COMPANY, AND THE RESPONDENT, CHICAGO
METALLIC MFG. COMPANY, MAKE AND SELL TIN BAKING PANS.  THE UNDENIED
TESTIMONY WAS THAT METALLIC SOLD ITS PANS OVER A LARGE PART OF THE
UNITED STATES, PROBABLY IN EVERY STATE IN THE COUNTRY.  KATZINGER
BECAME OWNER OF JACKSON PATENT NO. 2,077,757 ON A CERTAIN TYPE OF PAN. 
FN1  METALLIC, ACCUSED OF INFRINGING, ENTERED INTO A LICENSING CONTRACT
UNDER WHICH, UPON PAYMENT OF STIPULATED ROYALTIES, IT WAS AUTHORIZED TO
MANUFACTURE AND SELL PANS MADE IN ACCORDANCE WITH THE CLAIMED
INVENTION.  SECTIONS 3 AND 11 OF THE LICENSE CONTRACT, SET OUT BELOW,
FN2  PROVIDED THAT METALLIC, LIKE ALL OTHER LICENSEES, SHOULD SELL
THESE PANS AT PRICES FIXED BY KATZINGER.  ROYALTIES WERE TO BE COMPUTED
ON THE BASIS OF "NET SALES" OF ARTICLES "MADE IN ACCORDANCE WITH ANY OF
THE PATENTS OR APPLICATIONS UNDER THIS LICENSE."  SECTION 14 PROVIDED
THAT IF METALLIC ELECTED TO TERMINATE THE CONTRACT, WITHOUT CEASING TO
MANUFACTURE THE PANS, METALLIC SHOULD "BE ESTOPPED FROM DENYING THE
VALIDITY OF SAID PATENT  ...  AND BE DEEMED AN INFRINGER THEREOF." 
METALLIC MAINTAINED THE PATENTEEFIXED PRICES AND PAID ROYALTIES ON PANS
DEEMED BY IT TO BE COVERED BY THE PATENT.  FN3 

A CONTROVERSY LATER AROSE AS TO WHETHER CERTAIN TYPES OF PANS
MANUFACTURED BY METALLIC WERE COVERED.  DECLINING TO PAY ROYALTIES ON
THIS TYPE OF PAN, METALLIC GAVE NOTICE OF TERMINATION OF THE CONTRACT
AND INITIATED THIS ACTION FOR A DECLARATORY JUDGMENT PRAYING THAT THE
COURT DECLARE THAT THE PATENT WAS INVALID FOR WANT OF INVENTION AND
THAT THE CONTROVERSIAL PANS WERE NOT COVERED BY, AND DID NOT INFRINGE,
ANY OF KATZINGER'S PATENTS.  KATZINGER IN AN ANSWER AND COUNTERCLAIM
ALLEGED, SO FAR AS MATERIAL HERE, THAT THE PATENT COVERED ALL THE
METALLIC PANS, THAT METALLIC WAS ESTOPPED TO CHALLENGE VALIDITY OF THE
PATENT BY SEC. 14 OF THE CONTRACT, AND THAT METALLIC EITHER OWED
ROYALTIES OR WAS LIABLE FOR INFRINGEMENT.  IT PRAYED, AMONG OTHER
THINGS, FOR AN ACCOUNTING FOR UNPAID ROYALTIES WHICH WERE TO BE
COMPUTED AT 2.5% TO 5% OF THE SALES PRICE WHICH WAS GOVERNED BY THE
MINIMUM PRICE LIST ATTACHED TO THE LICENSE.  FN4  IN THE ALTERNATIVE IT
PRAYED THAT METALLIC BE REQUIRED TO ACCOUNT FOR PROFITS AND DAMAGES AS
AN INFRINGER.  THE DISTRICT COURT HELD THAT METALLIC WAS ESTOPPED TO
CHALLENGE THE VALIDITY OF THE PATENTS, AND, TREATING THEM AS VALID,
FOUND THAT THE PATENT CLAIMS DID COVER ALL THE PANS.  ACCORDINGLY, IT
ORDERED AN ACCOUNTING TO DETERMINE ROYALTIES DUE FOR THE PERIOD PRIOR
TO TERMINATION OF THE LICENSE CONTRACT, AND FOR INFRINGEMENT DAMAGES
THEREAFTER. 

RELYING UPON OUR DECISION IN SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC
CO., 317 U.S. 173, THE CIRCUIT COURT OF APPEALS REVERSED.  IT HELD THAT
THE AGREEMENT TO FIX PRICES WAS INSEPARABLY CONNECTED WITH THE
AGREEMENT TO PAY ROYALTIES; THAT IF THE PATENT WAS INVALID, THE PRICE
FIXING PROVISION VIOLATED THE FEDERAL ANTI-TRUST LAWS; THAT CONFLICT OF
THE PRICE-FIXING PROVISION WITH THE ANTI-TRUST LAWS WOULD MAKE THE
AGREEMENT TO PAY ROYALTIES UNENFORCEABLE; AND THAT THE DISTRICT COURT
HAD ERRED IN BARRING METALLIC FROM CHALLENGING THE PATENT'S VALIDITY AS
A PREDICATE TO ESTABLISHING THE ILLEGALITY AND CONSEQUENT
UNENFORCEABILITY OF THE ROYALTY COVENANT.  THE CAUSE WAS REMANDED TO
THE DISTRICT COURT TO PASS UPON VALIDITY OF THE PATENT.  139 F.2D 291. 
THAT COURT THEN HELD THE PATENT INVALID AND RENDERED JUDGMENT FOR
METALLIC.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  153 F.2D 149.  WE
GRANTED CERTIORARI BECAUSE OF A CONFLICTING DECISION IN WESTINGHOUSE
ELECTRIC & MFG. CO. V. MACGREGOR, 350 PA. 333, 38 A.2D 244.  THE
PENNSYLVANIA SUPREME COURT IN THE MACGREGOR CASE RULED THAT PRICE
FIXING PROVISIONS IN A LICENSE AGREEMENT SUCH AS THE ONE BEFORE US WERE
SEVERABLE FROM THE AGREEMENT TO PAY ROYALTIES, AND READ OUR SOLA CASE
AS THOUGH IT WERE A HOLDING THAT A LICENSEE WAS ESTOPPED TO CHALLENGE A
PATENT'S VALIDITY EXCEPT IN CASES WHERE A LICENSOR SOUGHT AFFIRMATIVE
RELIEF TO ENFORCE PRICE-FIXING PROVISIONS OF A LICENSE. 

WE NEED NOT CONSIDER WHETHER UNDER THE RULING OF BEMENT V. NATIONAL
HARROW CO., 186 U.S. 70, 87-91, THESE PRICE-FIXING PROVISIONS WOULD BE
LAWFUL IF THE PATENT WERE VALID.  THE QUESTION HERE IS ENTIRELY
DIFFERENT.  NOR NEED WE, AS IT HAS BEEN SUGGESTED, DISCUSS THIS COURT'S
OPINIONS IN KINSMAN V. PARKHURST, 18 HOW.  289, AND UNITED STATES V.
HARVEY STEEL CO., 196 U.S. 310, WHICH WERE CONCERNED WITH PARTICULAR
CIRCUMSTANCES THERE INVOLVED.  IN THE SOLA CASE WE DECLINED TO EXAMINE
THESE PRIOR DECISIONS, HOLDING THAT NEITHER OF THEM WAS RELEVANT
BECAUSE "NO PRICE-FIXING STIPULATION WAS INVOLVED IN THE LICENSE
CONTRACT" AT ISSUE IN THOSE CASES.  SO HERE, IT WOULD BE INAPPROPRIATE
TO RE-EXAMINE THOSE DECISIONS NOW.  UNDER WHAT OTHER CIRCUMSTANCES A
FEDERAL RULE OF ESTOPPEL MIGHT BE APPLIED IS A QUESTION WHICH CAN BE
MET WHEN PARTICULAR FACTS PRESENT IT. 

THE SOLA CASE REAFFIRMED PAST DECISIONS HOLDING THAT PRICE-FIXING
AGREEMENTS SUCH AS THOSE HERE INVOLVED ARE UNENFORCEABLE BECAUSE OF
VIOLATIONS OF THE SHERMAN ACT SAVE AS THEY MAY BE WITHIN THE PROTECTION
OF A LAWFUL PATENT.  THAT CASE HELD FURTHER THAT LOCAL RULES OF
ESTOPPEL CANNOT SCREEN SUCH AGREEMENTS FROM COURT SCRUTINY, AND THAT
FEDERAL COURTS MUST, IN THE PUBLIC INTEREST, KEEP THE WAY OPEN FOR THE
CHALLENGE OF PATENTS WHICH ARE UTILIZED FOR PRICE-FIXING OF INTERSTATE
GOODS.  IT IS TRUE THAT THE LICENSOR THERE NOT ONLY SOUGHT A RECOVERY
OF ROYALTIES, BUT PRAYED GENERALLY FOR AN INJUNCTION TO REQUIRE
OBSERVANCE OF ALL THE PROVISIONS OF THE LICENSE AGREEMENT, ONE OF WHICH
PROVISIONS WAS FOR PRICE-FIXING.  BUT THAT THE CHIEF OBJECT OF THAT
SUIT WAS TO RECOVER ROYALTIES AND NOT TO REQUIRE OBSERVANCE OF THE
PRICE-FIXING PROVISIONS IS INDICATED BY THE FACT THAT, WHILE BREACHES
OF OTHER COVENANTS OF THE CONTRACT WERE ALLEGED IN THE PETITION, AND
SPECIFIC PRAYERS FOR THEIR OBSERVANCE WERE INCLUDED, THERE WAS NO
CHARGE THAT THE LICENSEE HAD BREACHED THE PRICE-FIXING COVENANT AND
THERE WAS NO SPECIFIC PRAYER TO REQUIRE OBSERVANCE OF IT. NOR DID THIS
COURT INDICATE THAT THE PATENT WOULD HAVE BEEN IMMUNE FROM CHALLENGE
HAD THE LICENSOR SUED FOR ROYALTIES ONLY.  THIS WOULD HAVE PERMITTED A
LICENSOR TO BE PROTECTED ON AN ILLEGAL CONTRACT MERELY BECAUSE HE CHOSE
ONE REMEDY RATHER THAN ANOTHER ON THE SAME SUBSTANTIVE ISSUE.  IF WE
HAD INTENDED TO DRAW SUCH A FINE LINE, IT IS HARD TO BELIEVE THAT SUCH
A CAREFUL WRITER AS THE LATE CHIEF JUSTICE WOULD HAVE FAILED TO
INDICATE IN THE OPINION OR THE MANDATE OF THE COURT IN THE SOLA CASE
THAT ON REMAND THE TRIAL COURT, WHILE PERMITTING CHALLENGE OF THE
PATENT TO DEFEAT THE INJUNCTION, MUST TREAT THE PRICE-FIXING PROVISION
AS SEVERABLE, AND FORBID CHALLENGE FOR THE PURPOSE OF DEFEATING THE
CLAIM FOR RECOVERY OF ROYALTIES.  FN5  THAT DECISION, INSTEAD OF
RESTING ON SUCH A NARROW PROCEDURAL BASE, WAS FIRMLY GROUNDED UPON THE
BROAD PUBLIC INTEREST IN FREEING OUR COMPETITIVE ECONOMY FROM THE TRADE
RESTRAINTS WHICH MIGHT BE IMPOSED BY PRICE-FIXING AGREEMENTS STEMMING
FROM NARROW OR INVALID PATENTS.  SOLA ELECTRIC CO. V. JEFFERSON
ELECTRIC CO., SUPRA AT 177. 

IN SCOTT PAPER CO. V. MARCALUS CO., 326 U.S. 249, IT WAS HELD THAT
EVEN AN ASSIGNOR WHO HAD SOLD A PATENT ISSUED TO ITSELF WAS FREE TO
CHALLENGE THE VALIDITY OF THE PATENT AND THEREBY DEFEAT AN ACTION FOR
INFRINGEMENT BY SHOWING THAT THE INVENTION HAD BEEN DESCRIBED IN AN
EXPIRED PATENT.  IN THUS EMPHASIZING THE NECESSITY OF PROTECTING OUR
COMPETITIVE ECONOMY BY KEEPING OPEN THE WAY FOR INTERESTED PERSONS TO
CHALLENGE THE VALIDITY OF PATENTS WHICH MIGHT BE SHOWN TO BE INVALID,
THE COURT WAS BUT STATING AN OFTEN EXPRESSED POLICY THAT "IT IS THE
PUBLIC INTEREST WHICH IS DOMINANT IN THE PATENT SYSTEM," MERCOID CORP.
V. MID-CONTINENT INVESTMENT CO., 320 U.S. 661, 665, AND THAT THE RIGHT
TO CHALLENGE "IS NOT ONLY A PRIVATE RIGHT TO THE INDIVIDUAL, BUT IT IS
FOUNDED ON PUBLIC POLICY WHICH IS PROMOTED BY HIS MAKING THE DEFENCE,
AND CONTRAVENED BY HIS REFUSAL TO MAKE IT."  POPE MFG. CO. V. GORMULLY,
144 U.S. 224, 235.  FN6 

IF THE QUESTION OF SEVERABILITY, URGED BY THE PETITIONER HERE, WERE A
NEW ONE, WE SHOULD AGAIN ARRIVE AT THE CONCLUSION WE REACHED IN THE
SOLA CASE.  METALLIC'S OBLIGATION TO PAY ROYALTIES AND ITS AGREEMENT TO
SELL AT PRICES FIXED BY KATZINGER CONSTITUTED AN INTEGRATED
CONSIDERATION FOR THE LICENSE GRANT.  CONSEQUENTLY, WHEN ONE PART OF
THE CONSIDERATION IS UNENFORCEABLE BECAUSE IN VIOLATION OF LAW, ITS
INTEGRATED COMPANION MUST GO WITH IT.  SEE HAZELTON V. SHECKELLS, 202
U.S. 71, 78.  MOREOVER, SOLICITUDE FOR THE INTEREST OF THE PUBLIC
FOSTERED BY FREEDOM FROM INVALID PATENTS AND FROM RESTRAINTS OF TRADE,
WHICH HAS BEEN MANIFEST BY THE LINE OF DECISIONS OF WHICH THE SCOTT
PAPER CO. AND SOLA CASES ARE TWO OF THE LATEST EXAMPLES, REQUIRES THAT
THERE SHOULD BE NO DEPARTURE FROM THE GUIDING PRINCIPLES THEY
ANNOUNCED. 

THE ROYALTIES HERE CLAIMED ACCRUED, IF THEY ACCRUED AT ALL, PRIOR TO
THE TIME THE LICENSE AGREEMENT TERMINATED.  CONSEQUENTLY, THE FACT OF
SUBSEQUENT TERMINATION DOES NOT FREE THE PROMISE TO PAY ROYALTIES FROM
THE TAINT OF THE PRICE-FIXING PROVISION.  NOR DOES THE FACT, IF IT BE A
FACT, THAT METALLIC ITSELF SUGGESTED THE PRICE-FIXING PROVISION, BAR
METALLIC'S CHALLENGE TO THE PATENT'S VALIDITY.  FOR THE CONTRACT WAS
STILL ILLEGAL, WHOEVER SUGGESTED IT, SO THAT THERE IS NO LESS REASON
FOR LEAVING THE WAY OPEN TO CHALLENGE THE PATENT AS A SERVICE TO THE
PUBLIC INTEREST THAN IF KATZINGER HAD SUGGESTED PRICE-FIXING.  FINALLY,
METALLIC'S SPECIFIC CONTRACT NOT TO CHALLENGE THE VALIDITY OF
KATZINGER'S PATENT CAN NO MORE OVERRIDE CONGRESSIONAL POLICY THAN CAN
AN IMPLIED ESTOPPEL.  SEE SCOTT PAPER CO. V. MARCALUS MFG. CO., SUPRA,
AT 257 AND CASES CITED.  AFFIRMED. 

FN1  OTHER PATENTS, ORIGINALLY IN SUIT, ARE NOT INVOLVED IN THIS
CASE. 

FN2  "3.  LICENSOR AGREES THAT WHILE THIS AGREEMENT REMAINS IN FORCE
AND EFFECT, IF IT PERMITS OTHERS UNDER LICENSE OR OTHER AGREEMENT TO
MANUFACTURE OR SELL ARTICLES OR DEVICES EMBODYING OR MADE IN ACCORDANCE
WITH ANY OF THE PATENTS OR APPLICATIONS HEREINBEFORE DESCRIBED, UPON
TERMS MORE FAVORABLE THAN THOSE GRANTED THE LICENSEE HEREUNDER, THE
LICENSOR SHALL IMMEDIATELY NOTIFY THE LICENSEE HEREUNDER AND GRANT THE
SAME TERMS TO THE LICENSEE." 

     .   .         .         .         . 

"11.  LICENSOR RESERVES THE RIGHT TO ESTABLISH A MINIMUM SALES PRICE
FOR THE ARTICLES OR PRODUCTS WHICH LICENSEE IS LICENSED TO MANUFACTURE
HEREUNDER AND TO MODIFY OR CHANGE SUCH MINIMUM PRICES FROM TIME TO TIME
DURING THE LIFE OF THIS AGREEMENT.  THE LICENSOR, AS WELL AS LICENSEE
AND ANY OTHER PERSON, PERSONS OR CORPORATION LICENSED BY LICENSOR,
SHALL NOT, WITH THE CONSENT OF LICENSOR, SELL OR OFFER FOR SALE, OR
OTHERWISE DISPOSE OF ANY OF THE LICENSED DEVICES OR PRODUCTS BELOW SAID
MINIMUM SALES PRICE, OR ON MORE FAVORABLE TERMS OF SALE THAN THOSE SET
FORTH IN ANY SUCH SCALE OF PRICES SO ESTABLISHED BY LICENSOR. 
CONTEMPORANEOUSLY WITH THE EXECUTION AND DELIVERY OF THIS LICENSE
AGREEMENT, LICENSEE HAS RECEIVED FROM LICENSOR A SCHEDULE OF MINIMUM
PRICES, EFFECTIVE AS OF THE DATE HEREOF, BELOW WHICH NONE OF THE
PRODUCTS OR DEVICES MADE UNDER THIS LICENSE SHALL BE SOLD.  LICENSOR
RESERVES THE RIGHT, UPON THIRTY (30) DAYS' NOTICE IN WRITING GIVEN BY
LICENSOR TO LICENSEE, TO CHANGE SAID MINIMUM PRICES FROM TIME TO TIME
DURING THE LIFE HEREOF.  ON SUCH ARTICLES OR DEVICES MADE AND SOLD BY
LICENSEE AS TO WHICH LICENSOR SHALL HAVE FAILED OR NEGLECTED TO
ESTABLISH A MINIMUM SALES PRICE, THE ROYALTY SHALL LIKEWISE BE COMPUTED
ON THE NET SALES PRICE RECEIVED BY LICENSEE FROM ITS CUSTOMERS. 
LICENSEE OR ITS DULY AUTHORIZED REPRESENTATIVES SHALL HAVE ACCESS FROM
TIME TO TIME TO THE BOOKS OF ACCOUNT OF LICENSOR DURING ORDINARY
BUSINESS HOURS FOR THE PURPOSE OF DETERMINING WHETHER OR NOT LICENSOR
HAS COMPLIED WITH THE PROVISIONS OF THIS PARAGRAPH." 

FN3  OF COURSE IT IS THE UNLAWFUL AGREEMENT, WHETHER IT IS EXECUTED
OR NOT, WHICH VIOLATES THE ANTI-TRUST LAWS.  UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S. 150; AMERICAN TOBACCO CO. V. UNITED STATES,
328 U.S. 781, 809.  IN THE CASES HERE THE PARTIES STIPULATED THAT "IN
PURSUANCE OF THIS LICENSE AGREEMENT METALLIC DID, FOR A PERIOD OF TWO
YEARS MORE OR LESS, EXERCISE THE LICENSE THEREIN GIVEN BY MAKING
CERTAIN TINWARE PRODUCTS," MAINTAINING "MINIMUM PRICES AND PAYING
THEREFOR THE APPLICABLE ROYALTIES."  WHILE THE COURT ORIGINALLY MADE
FINDINGS TO THE EFFECT THAT METALLIC DID NOT ATTEMPT TO CARRY OUT THE
PRICE-FIXING AGREEMENT AND WAS WILLING TO HAVE IT REMOVED FROM THE
CONTRACT, THESE FINDINGS WERE EXPRESSLY VACATED ON REMAND.    FN4  THE
SCHEDULE OF MINIMUM PRICES INCORPORATED BY REFERENCE INTO THE LICENSE
AGREEMENT WAS SET OUT AS AN EXHIBIT IN KATZINGER'S COUNTERCLAIM.    FN5
THE CASES CITED IN THE SOLA DECISION REJECTED CONTENTIONS THAT THE
OFFENDING PRICE-FIXING PROVISIONS SHOULD BE CONSIDERED SEVERABLE FROM
THE REST OF THE CONTRACT AND THEREFORE ENFORCEABLE.  SEE E.G., BEMENT
V. NATIONAL HARROW CO., 186 U.S. 70, 88; CONTINENTAL WALL PAPER CO. V.
LOUIS VOIGHT & SONS CO., 212 U.S. 227, 230, 266. 

THAT THIS COURT'S ATTENTION WAS CALLED IN THE SOLA CASE TO THIS
QUESTION IS SHOWN BY EXAMINATION OF THE BRIEF FILED HERE FOR SOLA WHICH
CITED DECISIONS OF THIS COURT TO SUPPORT A CONTENTION THAT THE
PROVISIONS FOR ROYALTIES AND PRICE-FIXING WERE INSEPARABLE AND THAT
ROYALTIES MUST BE DENIED IF THE PRICE-FIXING PROVISION WERE ILLEGAL. 
MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488; LOUD V. POMONA LAND &
WATER CO., 153 U.S. 564, 576; WILLIAMS V. BANK OF THE UNITED STATES, 2
PET. 96. 

FN6  SEE MORTON SALT CO. V. SUPPIGER CO., SUPRA AT 492. 

(FOR DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, CONCURRED IN BY
MR. JUSTICE REED, MR. JUSTICE JACKSON AND MR. JUSTICE BURTON, IN THIS
CASE AND IN MACGREGOR V. WESTINGHOUSE MFG. CO., SEE POST, P. 408.) 
..END :












MACGREGOR V. WESTINGHOUSE CO., 329 U.S. 402 


NO. 28.  REARGUED NOVEMBER 14, 1946.  - DECIDED JANUARY 6, 1947.  - 352
PA. 443, 43 A.2D 332, REVERSED. 


A PATENT-LICENSING AGREEMENT AUTHORIZED THE LICENSEE TO MAKE, USE AND
SELL BRAZING SOLDER CONTAINING COPPER AND PHOSPHORUS AND REQUIRED HIM
TO PAY ROYALTIES AND NOT TO SELL THE PRODUCT AT PRICES LOWER THAN THOSE
CHARGED BY THE LICENSOR.  AFTER PAYING ROYALTIES ON THIS PRODUCT AND
ALSO ON SOLDERS CONTAINING TIN OR SILVER IN ADDITION TO COPPER AND
PHOSPHORUS, THE LICENSEE OBTAINED PATENTS ON THE SOLDERS CONTAINING TIN
AND SILVER AND REFUSED TO PAY ROYALTIES ON THEM.  THE LICENSOR SUED IN
A STATE COURT FOR ROYALTIES.  IN HIS ANSWER, THE LICENSEE CHALLENGED
THE VALIDITY AND COVERAGE OF THE LICENSOR'S PATENT, THE VALIDITY OF THE
PRICE-FIXING AGREEMENT AND THE VALIDITY OF THE LICENSOR'S EXERCISE OF
ITS MONOPOLY.  HE COUNTER-CLAIMED FOR REFUND OF THE ROYALTIES PAID AND
FOR DAMAGES ON ACCOUNT OF THE RESTRAINT IMPOSED ON HIM BY THE
AGREEMENT.  HELD: 

1.  IN THESE CIRCUMSTANCES, THE LICENSEE WAS NOT ESTOPPED TO
CHALLENGE THE VALIDITY OF THE LICENSOR'S PATENT.  SOLA ELECTRIC CO. V.
JEFFERSON ELECTRIC CO., 317 U.S. 173; SCOTT PAPER CO. V. MARCALUS MFG.
CO., 326 U.S. 249; KATZINGER CO. V. CHICAGO METALLIC CO., ANTE, P.
394.  P. 407. 

2.  THE COVENANT TO PAY ROYALTIES WAS NOT SEVERABLE FROM THE PRICE
FIXING COVENANT.  KATZINGER CO. V. CHICAGO METALLIC CO., ANTE, P. 394. 
P. 407. 

3.  THE LICENSEE'S CHALLENGE TO THE VALIDITY OF THE PATENT, ITS
ALLEGED MISUSE, AND THE PRICE-FIXING COVENANT RAISED FEDERAL QUESTIONS
NOT GOVERNED BY STATE RULES AS TO ESTOPPEL OR CONTRACT SEVERABILITY. 
P. 407. 

4.  IF THE PATENT IS INVALID, THE PRICE-FIXING AGREEMENT VIOLATES THE
ANTI-TRUST LAWS.  P. 407. 

5.  SINCE THE CASE IS REMANDED FOR A NEW TRIAL, THIS COURT WILL NOT
NOW PASS ON THE VALIDITY OF THE PATENT, THE LICENSING AGREEMENT, OR THE
LICENSOR'S ALLEGED MISUSE OF ITS PATENT.  PP. 407-408. 

MACGREGOR V. WESTINGHOUSE ELECTRIC & MANUFACTURING CO. 

ON REHEARING. 

IN A SUIT BROUGHT BY A LICENSOR OF A PATENT IN A STATE COURT FOR
ROYALTIES UNDER A LICENSING AGREEMENT, THE LICENSEE CHALLENGED THE
VALIDITY OF THE PATENT, A PRICE-FIXING COVENANT IN THE AGREEMENT, AND
THE LICENSOR'S EXERCISE OF ITS MONOPOLY, AND COUNTERCLAIMED FOR REFUND
OF ROYALTIES ALREADY PAID AND FOR DAMAGES RESULTING FROM THE RESTRAINT
IMPOSED ON HIM BY THE LICENSING AGREEMENT.  THE TRIAL COURT GAVE
JUDGMENT FOR THE LICENSOR.  THE SUPREME COURT OF PENNSYLVANIA
AFFIRMED.  352 PA. 443, 43 A.2D 332.  THIS COURT GRANTED CERTIORARI,
326 U.S. 708, AFFIRMED THE JUDGMENT BELOW IN A PER CURIAM DECISION BY
AN EQUALLY DIVIDED COURT, 327 U.S. 758, AND LATER GRANTED A REHEARING. 
327 U.S. 812.  REVERSED AND REMANDED, P. 408. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE THAT OF EDWARD KATZINGER CO. V. CHICAGO METALLIC MFG.
CO., ANTE, P. 394, THIS DAY DECIDED, INVOLVES THE RIGHT OF A PATENT
LICENSEE TO DEFEND A SUIT FOR ROYALTIES ONLY UNDER A LICENSING
AGREEMENT WHICH CONTAINS A PRICE-FIXING PROVISION.  CERTAIN SUBSIDIARY
QUESTIONS ARE ALSO RAISED. 

WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY OWNED JONES' PATENT NO.
1,651,709.  THE INVENTION CLAIMED WAS A BRAZING "SOLDER COMPRISING
COPPER AND PHOSPHORUS AS THE MAIN AND ESSENTIAL CONSTITUENTS." 
WESTINGHOUSE SUED MACGREGOR FOR INFRINGEMENT.  THE LITIGATION WAS
SETTLED, AND MACGREGOR TOOK A LICENSE FROM WESTINGHOUSE AUTHORIZING
MACGREGOR TO MAKE, USE, AND SELL SOLDER CONTAINING THE CONSTITUENTS
DESCRIBED IN WESTINGHOUSE'S PATENT CLAIM.  MACGREGOR AGREED TO PAY 10%
ROYALTIES ON THE NET SELLING PRICE OF THE SOLDER.  SECTIONS 5 AND 6 OF
THE LICENSE AGREEMENT, SET OUT BELOW,  FN1  REQUIRED MACGREGOR TO SELL
THE SOLDER FOR NO LESS THAN THE PRICE WESTINGHOUSE CHARGED ITS OWN
CUSTOMERS.  MACGREGOR PAID ROYALTIES ON SOLDER HE MADE AND SOLD WHICH
CONTAINED ONLY PHOSPHORUS AND COPPER.  LATER HE BEGAN TO MAKE AND SELL
SOLDERS COMPOSED OF PHOSPHORUS, COPPER, AND TIN, OR PHOSPHORUS, COPPER,
AND SILVER.  FOR A TIME HE PAID ROYALTIES ON THESE.  BUT HE ALSO
APPLIED FOR AND OBTAINED PATENTS ON THESE TWO LATTER SOLDERS WHICH
ADDED TIN AND SILVER RESPECTIVELY TO THE PHOSPHORUS-COPPER
COMBINATION.  FN2  MACGREGOR THEN DECLINED TO PAY ROYALTIES ON THESE
SOLDERS ON THE GROUND THAT THEY WERE NOT COVERED BY WESTINGHOUSE'S
PATENT.  WESTINGHOUSE BROUGHT THIS SUIT FOR AN ACCOUNTING AND PAYMENT
OF UNPAID ROYALTIES IN A PENNSYLVANIA STATE COURT.  MACGREGOR FILED AN
ANSWER DENYING LIABILITY AND ASSERTING A COUNTERCLAIM.  HIS ANSWER
ASSERTED THAT THE SOLDERS WHICH WERE DESCRIBED IN HIS PATENTS WERE NOT
COVERED BY WESTINGHOUSE'S PATENT.  HE ALLEGED THAT THE EFFORT OF
WESTINGHOUSE TO MAKE HIM PAY ROYALTIES ON THESE SOLDERS CONSTITUTED AN
UNLAWFUL EXERCISE OF WESTINGHOUSE'S PATENT MONOPOLY AND THAT
WESTINGHOUSE SHOULD NOT BE ALLOWED TO RECOVER IN THE COURTS FOR THIS
REASON.  IN A COUNTER-CLAIM, HE MAINTAINED THAT BY INADVERTENCE AND
MISTAKE HE HAD PAID ROYALTIES ON SOLDERS COVERED BY HIS OWN PATENTS. 
HE CHARGED THAT IF THE WESTINGHOUSE PATENT SHOULD BE CONSTRUED TO COVER
THESE LATTER SOLDERS, IT WAS INVALID.  HE FURTHER CONTENDED THAT THE
PRICE-FIXING PROVISION WAS A VIOLATION OF THE SHERMAN ACT AND THE
CLAYTON ACT AND CONSTITUTED AN UNLAWFUL USE OF WESTINGHOUSE'S PATENT
MONOPOLY WHICH RENDERED THE WHOLE LICENSE AGREEMENT ILLEGAL.  FN3  IN
HIS COUNTERCLAIM MACGREGOR ASKED, NOT ONLY FOR JUDGMENT FOR REFUND OF
THE ROYALTIES ALLEGED TO HAVE BEEN INADVERTENTLY PAID, BUT ALSO FOR
DAMAGES ON ACCOUNT OF THE ILLEGAL RESTRAINT IMPOSED UPON HIM BY THE
AGREEMENT. 

THE STATE TRIAL COURT DECLINED TO CONSIDER THE VALIDITY OF THE
PATENT, HOLDING THAT IT WAS PRESUMED TO BE VALID, AND THAT MACGREGOR AS
A LICENSEE HAD NO RIGHT TO CHALLENGE IT.  ASSUMING THE PATENT AND ALL
THE CLAIMS IN IT TO BE VALID ON THIS THEORY, THE STATE COURT FOUND THE
CLAIMS BROAD ENOUGH IN SCOPE TO COVER ALL THE SOLDERS MANUFACTURED AND
SOLD BY MACGREGOR.  THE TRIAL COURT DID NOT GIVE A LIKE PRESUMPTION TO
THE VALIDITY OF THE PATENTS ISSUED TO MACGREGOR, BUT HELD THAT THE
SOLDERS COVERED BY THOSE PATENTS INFRINGED THE PRESUMPTIVELY VALID
PATENTS OF WESTINGHOUSE.  FN4 THE STATE SUPREME COURT AFFIRMED.  350
PA. 333, 38 A.2D 244.  IT AGREED WITH THE TRIAL COURT THAT MACGREGOR
WAS ESTOPPED TO ATTACK THE VALIDITY OF WESTINGHOUSE'S PATENT.  IT
RECOGNIZED THAT THERE COULD BE NO ESTOPPEL IN THE PRESENT CASE UNDER
OUR DECISION IN SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S.
173, BUT FOR ITS INTERPRETATION OF THE SOLA DECISION AS APPLYING ONLY
TO SUITS IN WHICH THE LICENSOR SOUGHT AFFIRMATIVE RELIEF TO ENFORCE
COMPLIANCE WITH THE PRICE-FIXING PROVISION.  SINCE NO SUCH RELIEF WAS
ASKED IN THIS CASE, THE STATE SUPREME COURT FELT THAT THERE WAS NO
EXISTING CONTROVERSY WHICH INVOLVED THE PRICE-FIXING PROVISION - THAT
THE QUESTIONS OF THEIR EFFECT AND VALIDITY WERE "MOOT."  THUS IT
ASSUMED, AS DID THE PETITIONER IN KATZINGER CO. V. CHICAGO METALLIC
MFG. CO., SUPRA, THAT A ROYALTY AGREEMENT WAS SEVERABLE FROM PRICE
FIXING COVENANTS. 

FOR THE REASONS STATED IN TODAY'S KATZINGER OPINION WE HOLD THAT THE
COVENANT TO PAY ROYALTIES WAS NOT SEVERABLE FROM THE COVENANT TO SELL
AT FIXED PRICES.  SINCE MACGREGOR INVOKED FEDERAL LAW TO SUSTAIN HIS
CHALLENGE TO THE VALIDITY OF THE PATENT, THE ALLEGED MISUSE OF THE
PATENT, AND THE PRICE-FIXING COVENANT, HIS CONTENTIONS RAISED FEDERAL
QUESTIONS NOT GOVERNED BY STATE ESTOPPEL OR CONTRACT SEVERABILITY
RULES.  SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO., SUPRA, 176-177;
SCOTT PAPER CO. V. MARCALUS CO., 326 U.S. 249.  ACCORDINGLY, WE HOLD AS
A MATTER OF FEDERAL LAW THAT THE STATE SUPREME COURT WAS WRONG IN
AFFIRMING THE JUDGMENT IN THIS CAUSE ON THE GROUND THAT THE LICENSEE,
MACGREGOR, WAS ESTOPPED TO OFFER PROOF OF HIS ALLEGATION OF
INVALIDITY.  THIS ERROR WILL REQUIRE, AS THE STATE COURT ANTICIPATED,
THAT THE CAUSE BE REMANDED FOR A NEW TRIAL TO DETERMINE THE VALIDITY OF
WESTINGHOUSE'S PATENT.  FOR WE DO NOT THINK THAT THE PRESENT STATE OF
THIS RECORD JUSTIFIES ACCEPTANCE OF MACGREGOR'S CONTENTION THAT WE
SHOULD NOW PASS ON VALIDITY OF THE PATENT.  IF IT BE DETERMINED ON
REMAND THAT THE PATENT IS INVALID, THERE IS NO QUESTION BUT THAT, AS
MACGREGOR CONTENDS, THE PRICE-FIXING AGREEMENT VIOLATES THE ANTI-TRUST
LAWS.  KATZINGER CO. V. CHICAGO METALLIC CO., SUPRA; SOLA ELECTRIC CO.
V. JEFFERSON ELECTRIC CO., SUPRA, AT 175; SCOTT PAPER CO. V. MARCALUS
CO., SUPRA. 

BUT THERE ARE ALTERNATIVE FEDERAL QUESTIONS RAISED HERE BY MACGREGOR
UPON WHICH DECISION MIGHT TURN EVEN THOUGH WESTINGHOUSE'S PATENT BE
HELD VALID.  MACGREGOR PLEADED THAT THE PRICE-FIXING AGREEMENT SO
EFFECTIVELY WIPED OUT ALL COMPETITION TO WESTINGHOUSE IN THE
MANUFACTURE AND SALE OF THESE SOLDERS THAT THE WHOLE LICENSE CONTRACT
SHOULD BE HELD ILLEGAL AS A VIOLATION OF THE SHERMAN AND CLAYTON ACTS. 
MACGREGOR ALSO CONTENDED THAT THE LICENSE CONTRACT SHOULD BE HELD
UNENFORCEABLE IN THE COURTS ON THE GROUND THAT WESTINGHOUSE HAD
ATTEMPTED TO USE IT TO EXTEND THE PATENT'S SCOPE BEYOND ITS LAWFUL
COVERAGE.  BUT SINCE THE CAUSE MUST AGAIN BE TRIED IN THE STATE COURT
WE SHALL NOT PASS ON EITHER OF THESE CONTENTIONS AT THIS TIME. 

THE JUDGMENT IS REVERSED AND THE CASE REMANDED TO THE SUPREME COURT
OF PENNSYLVANIA FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  "5.  WESTINGHOUSE GRANTS THIS LICENSE ON THE EXPRESS CONDITION
THAT THE PRICES, TERMS AND CONDITIONS OF SALE FOR USE OR SALE IN THE
UNITED STATES OF AMERICA, ITS TERRITORIES AND POSSESSIONS OF BRAZING
SOLDERS EMBODYING THE INVENTION COVERED BY SAID LETTERS PATENT AND SO
LONG AS SUCH BRAZING SOLDERS CONTINUE TO BE COVERED BY SAID PATENT,
SHALL BE NO MORE FAVORABLE TO THE CUSTOMER THAN THOSE WHICH FROM TIME
TO TIME WESTINGHOUSE ESTABLISHES AND MAINTAINS FOR ITS OWN SALES OF
SIMILAR OR COMPETING BRAZING SOLDERS UNDER SUCH PATENT TO SUCH OR OTHER
SIMILARLY SITUATED CUSTOMER PURCHASING IN LIKE QUANTITIES.  MACGREGOR
SHALL BE NOTIFIED OF ALL SUCH PRICES, TERMS AND CONDITIONS OF SALE
FIXED BY WESTINGHOUSE. 

"THE PRICES, TERMS AND CONDITIONS OF SALE OF WESTINGHOUSE MAY BE
CHANGED BY WESTINGHOUSE FROM TIME TO TIME, NOTICE BEING GIVEN
MACGREGOR, BUT NOT LESS THAN FIVE DAYS' NOTICE SHALL BE GIVEN BEFORE
ANY SUCH CHANGE SHALL GO INTO EFFECT. 

"6.  IT IS AGREED THAT IT SHALL BE REGARDED AS AN EVASION OF THIS
AGREEMENT AMOUNTING TO A BREACH THEREOF FOR MACGREGOR TO REDUCE
WESTINGHOUSE'S SALE PRICE OR ALTER WESTINGHOUSE'S SELLING TERMS AND
CONDITIONS OF SALE DIRECTLY OR INDIRECTLY EITHER THROUGH ITS OWN
ORGANIZATION, ITS AGENTS OR OTHERS BY ANY DEVICE, SUBTERFUGE OR EVASION
OR BY ANY MEANS WHATEVER OR TO MAKE THE PRICES LOWER OR THE TERMS OR
CONDITIONS MORE FAVORABLE THAN THOSE SET FORTH BY WESTINGHOUSE." 

FN2  COPPER, PHOSPHORUS AND TIN SOLDER IS PATENT NO. 2,125,680;
COPPER, PHOSPHORUS AND SILVER SOLDER IS PATENT NO. 2,162,627. 

FN3  THE AGREEMENT TO FIX PRICES, IF UNLAWFUL AT ALL, WAS SO WHETHER
IT WAS EXECUTED OR NOT.  UNITED STATES V. SOCONY-VACUUM OIL CO., 310
U.S. 150; AMERICAN TOBACCO CO. V. UNITED STATES, 328 U.S. 781, 810. 
BUT THIS AGREEMENT BY MACGREGOR TO SELL AT FIXED PRICES WAS NO MERE
TOKEN, FOR THE TRIAL COURT FOUND THAT ON JULY 11, 1940, WESTINGHOUSE
CALLED MACGREGOR'S ATTENTION TO HIS OBLIGATION TO OBSERVE USER AND
DISTRIBUTOR PRICES, AND THAT ON OCTOBER 23, 1940, WESTINGHOUSE, THROUGH
ONE OF ITS ATTORNEYS, WROTE MACGREGOR'S ATTORNEY THAT "IF MACGREGOR
SELLS DIRECT TO THE USER, HE SHOULD CONFORM TO THE USER PRICES
ESTABLISHED, AND WHEN HE SELLS DIRECT TO THE DEALER, HE SHOULD CONFORM
TO THE DEALER PRICES ESTABLISHED."  THE ORAL TESTIMONY OF
WESTINGHOUSE'S REPRESENTATIVES CONSTRUED THE CONTRACT AS REQUIRING
MACGREGOR TO MAINTAIN THE PRICES.  MOREOVER, THE RECORD BEFORE US SHOWS
THAT MACGREGOR POSITIVELY TESTIFIED THAT HE HAD MAINTAINED THE
WESTINGHOUSE PRICES ON THE COPPER-PHOSPHORUS COMBINATION BECAUSE HE
CONSIDERED HIMSELF BOUND TO DO SO UNDER THE LICENSE CONTRACT. 

FN4  SINCE THE CASE IS TO BE REMANDED FOR TRIAL OF THE VALIDITY OF
THE PATENT, WE FIND IT UNNECESSARY TO CONSIDER THE PROPRIETY IN ANY
EVENT OF INDULGING A PRESUMPTION OF VALIDITY IN FAVOR OF WESTINGHOUSE'S
PATENT WITHOUT GIVING A PRESUMPTION OF A PATENTABLE DIFFERENCE TO THOSE
OF MACGREGOR.  SEE MILLER V. EAGLE MANUFACTURING CO., 151 U.S. 186,
208. 

MR. JUSTICE FRANKFURTER, WITH WHOM CONCUR MR. JUSTICE REED, MR.
JUSTICE JACKSON AND MR. JUSTICE BURTON, DISSENTING* . 

*(THIS IS ALSO A DISSENT FROM THE DECISION IN KATZINGER CO. V.
CHICAGO METALLIC CO., ANTE, P. 394.) 

THE COURT DEEMS THE ISSUES IN THESE CASES TO BE CONTROLLED BY OUR
DECISION IN SOLA ELECTRIC CO. V. JEFFERSON CO., 317 U.S. 173.  SUCH IS
NOT MY UNDERSTANDING OF THE SOLA DECISION.  THESE CASES CANNOT BE
PROPERLY DECIDED, I BELIEVE, WITHOUT CONSIDERATION OF ONE OF THE OLDEST
DOCTRINES OF THE PATENT LAW, NAMELY, THAT A LICENSEE CANNOT CHALLENGE
THE VALIDITY OF THE PATENT THOUGH EVERYONE ELSE MAY. 

(1)  NINETY YEARS AGO THIS COURT UNANIMOUSLY ANNOUNCED THE DOCTRINE
THAT A LICENSEE UNDER A PATENT IS ESTOPPED FROM CHALLENGING THE
VALIDITY OF THAT PATENT.  KINSMAN V. PARKHURST, 18 HOW.  289.  THE CASE
MAY PERHAPS BE EXPLAINED, OR EVEN EXPLAINED AWAY.  BUT THE RULE IT
EXPRESSED HAD BECOME SO MUCH PART OF OUR LAW THAT FIFTY YEARS LATER THE
COURT DEEMED IT UNNECESSARY TO DISCUSS IT AND UNANIMOUSLY APPLIED IT
EVEN AGAINST THE UNITED STATES AS LICENSEE.  UNITED STATES V. HARVEY
STEEL CO., 196 U.S. 310.  IT IS SIGNIFICANT THAT THE LICENSEE IN THAT
CASE, WHILE VIGOROUSLY CONTESTING ITS LIABILITY UPON THE PARTICULAR
FACTS, CONCEDED THAT THE DOCTRINE OF ESTOPPEL WAS LAW "AS A GENERAL
PROPOSITION." 

(2)  BEFORE THOSE CASES AND SINCE, IN ALL ENGLISH-SPEAKING
JURISDICTIONS, IN THE COURTS OF ENGLAND, OF THE DOMINIONS AND OF THE
VARIOUS STATES, AS WELL AS IN THE LOWER FEDERAL COURTS, WHERE MOST
PATENT LITIGATION ORIGINATES AND STOPS, A WEIGHTY BODY OF CASES
AFFIRMED AND APPLIED THAT DOCTRINE WITH RARE UNANIMITY.  FN1  THIS
COURT HAS NEVER QUESTIONED THE RULE.  FN2  THE PRINCIPLE HAS WITHSTOOD
JUDICIAL SCRUTINY FOR NEARLY A CENTURY. 

(3)  NOR HAS THE OPERATION OF THE RULE REVEALED INROADS UPON THE
PUBLIC INTEREST SO AS TO STIR EFFORTS FOR ITS ABROGATION OR RESTRICTION
BY CONGRESS.  PATENT POLICY HAS BEEN FREQUENTLY RECONSIDERED, AND SOME
RULES FORMULATED BY COURTS WERE ELIMINATED OR MODIFIED.  YET IN NONE OF
THE FOUR MAJOR PATENT STATUTES NOR IN ANY OF THE OTHER NUMEROUS
AMENDATORY ENACTMENTS WAS ATTEMPT MADE TO ABOLISH OR LIMIT ESTOPPEL IN
FAVOR OF THE LICENSOR.  FN3  THE PATENT OFFICE, CHARGED BY CONGRESS
WITH SUPERVISION OF THE PATENT SYSTEM AND THE SOURCE OF MANY
SUGGESTIONS ENACTED INTO LAW, HAS NEVER INCLUDED AMONG ITS PROPOSALS
RECOMMENDATION TO ALTER THAT DOCTRINE. 

(4)  NOT UNTIL 1942, APPARENTLY, WAS LEGISLATIVE CORRECTION INVOKED,
AND EVEN THEN ONLY PARTIALLY.  SEVERAL BILLS WERE INTRODUCED TO PERMIT
CONTEST OF THE VALIDITY OF A PATENT IN ANTI-TRUST SUITS.  SEE S. 2730,
AUG. 20, 1942; H.R. 7713, OCT. 15, 1942; H.R. 109, JAN. 6, 1943; H.R.
1371, JAN. 20, 1943.  ONLY IN THE LATEST BILLS TO BE INTRODUCED IS IT
PROPOSED THAT "IN ANY PROCEEDING INVOLVING A VIOLATION OF THE ANTITRUST
LAWS OR INVOLVING A PATENT OR ANY INTEREST THEREIN, A PARTY SHALL BE
ENTITLED TO SHOW THE INVALIDITY OR THE LIMITED SCOPE OF ANY PATENT OR
PATENT RIGHTS INVOLVED."  H.R. 3874, DEC. 18, 1943; H.R. 97, JAN. 3,
1945; H.R. 3462, JUNE 13, 1945; S. 2482, JULY 26, 1946.  NOT ONE OF
THESE BILLS HAS YET REACHED THE FLOOR OF CONGRESS.    (5)  IF EVER A
DOCTRINE HAS ESTABLISHED ITSELF AS PART OF OUR LAW TO BE RESPECTED BY
THE JUDICIARY, THIS IS IT.  IF IT IS TO BE CHANGED, CONGRESS IS THERE
TO CHANGE IT.  PERHAPS CONGRESS WILL SEE FIT TO REEXAMINE THE DOCTRINE
IN ALL ITS RAMIFICATIONS IN THE LIGHT OF ITS HISTORY AND THE EXPERIENCE
UNDER IT, AND WITH DUE REGARD TO ALL FACTORS RELEVANT TO OUR PATENT
SYSTEM.  WE CANNOT DO THAT.  WE CAN ONLY ADHERE TO THE DOCTRINE OR
OVERRULE IT.  UNTIL CONGRESS DOES UNDO A PRINCIPLE SO EMBEDDED IN OUR
LAW, WE SHOULD LEAVE IT WHERE WE FIND IT. 

(6)  BUT, IN ANY EVENT, IF WE ARE TO WIPE OUT SO SETTLED A PHASE OF
OUR LAW IT SHOULD BE DONE EXPLICITLY, NOT CRYPTICALLY.  IN MY JUDGMENT
THE SOLA DECISION DOES NOT GIVE ADEQUATE SUPPORT FOR THE COURT'S
OPINION.  THE CASES BEFORE US NECESSARILY INVOLVE THE ESTOPPEL DOCTRINE
AND CANNOT BE DISPOSED OF WITHOUT APPEARING TO OVERRULE A SETTLED
COURSE OF DECISION. 

(7)  NO DOUBT THE SOLA CASE, LIKE THESE TWO, AROSE OUT OF A CLAIM FOR
ROYALTIES UNDER A PATENT LICENSE.  BUT THAT THERE WAS A CLAIM FOR
ROYALTIES WAS HARDLY MENTIONED IN THE COURT'S OPINION IN THE SOLA
CASE.  THE SOLE ISSUE TO WHICH OUR ATTENTION WAS DIRECTED WAS A PRAYER
THAT THE LICENSEE BE ENJOINED FROM BREACH OF HIS PROMISE TO ABIDE BY
THE PRICES FIXED BY THE LICENSOR FOR THE SALE OF ARTICLES MANUFACTURED
UNDER THE PATENT.  EVER SINCE THE DECISION IN DR. MILES MEDICAL CO. V.
PARK & SONS CO., 220 U.S. 373, THIS COURT, AS A MATTER OF JUDICIAL
POLICY REFLECTED IN LEGISLATION, HAS DENIED ENFORCEMENT OF AGREEMENTS
NOT TO SELL GOODS BELOW A FIXED PRICE.  AND SO THIS COURT HAS BEEN ON
THE ALERT NOT TO ALLOW AN EXCEPTION TO WHAT IS A CONGRESSIONAL AS WELL
AS A JUDICIAL POLICY UNLESS THE BASIS FOR IT IS CLEAN AND CLEAR. 

THE PRECISE ISSUE WHICH WE DECIDED IN THE SOLA CASE IS NOT A MATTER
FOR INFERENCE OR CONJECTURE.  IT WAS EXPLICITLY DEFINED AND DELIMITED. 
"THE QUESTION FOR OUR DECISION," THE LATE CHIEF JUSTICE WROTE, "IS
WHETHER A PATENT LICENSEE, BY VIRTUE OF HIS LICENSE AGREEMENT, IS
ESTOPPED TO CHALLENGE A PRICE-FIXING CLAUSE IN THE AGREEMENT BY SHOWING
THAT THE PATENT IS INVALID, AND THAT THE PRICE RESTRICTION IS
ACCORDINGLY UNLAWFUL BECAUSE NOT PROTECTED BY THE PATENT MONOPOLY." 
317 U.S. AT 173.  THAT WAS THE ISSUE IN THE SOLA CASE.  IT WAS NOT
WHETHER A LICENSEE MAY CHALLENGE THE VALIDITY OF A PATENT WHEN SUED FOR
ROYALTIES.  IT WAS NOT WHETHER A PROVISION FOR PRICE-FIXING UNDERMINED
RIGHTS UNDER ESTOPPEL AGAINST A LICENSEE.  IT WAS WHETHER THE LICENSOR
COULD SHOW THE SPECIAL DISPENSATION PERTAINING TO THE HOLDER OF A VALID
PATENT, WHICH ENTITLES HIM TO FIX THE PRICE OF A COMMODITY MANUFACTURED
UNDER HIS PATENT, ALTHOUGH SUCH A PRICING AGREEMENT WOULD BE
UNENFORCEABLE IN THE GENERALITY OF CASES.  WHAT WAS SOUGHT AND WHAT WAS
DENIED IN SOLA WAS THE ACTIVE BENEFIT OF A PRICE-FIXING CLAUSE. 

(8)  IN THE CASES BEFORE US PRICE-FIXING IS NOT IN ISSUE.  FN4  WE
ARE NOT ASKED TO ALLOW THE LICENSOR TO HAVE THE BENEFIT OF A PRACTICE
AVAILABLE ONLY UNDER A VALID PATENT.  TO GRANT RELIEF HERE WILL NOT,
UNLIKE THE SOLA CASE, APPROVE A PRACTICE PRIMA FACIE IN RESTRAINT OF
TRADE.  WHAT WE HERE HAVE TO DECIDE IS WHETHER WE SHALL ALLOW THE
LICENSEE TO REPUDIATE AN AGREEMENT FOR THE PAYMENT OF MONEY MADE IN AN
ARM'S LENGTH TRANSACTION.  FOR NEARLY A HUNDRED YEARS THIS COURT HAS
UNIFORMLY ANSWERED THAT QUESTION BY USING THE LEGAL SHORTHAND OF
ESTOPPEL. 

(9)  BUT IF ALL THE CASES WHICH HAVE RECOGNIZED AND APPLIED THE
DOCTRINE OF ESTOPPEL HAVE BEEN REDUCED, AS APPARENTLY THEY HAVE BEEN,
TO DERELICTS, THEY SHOULD NOT BE ALLOWED TO REMAIN AS OBSTRUCTIONS ON
THE STREAM OF LAW.  AND NOT MERELY OUT OF REGARD FOR THE PROPER
ADMINISTRATION OF LAW.  THE MATTER HAS PRACTICAL CONSEQUENCES FOR ALL
WHOSE CONCERN IS PATENTS.  IT IS NOT QUESTIONED THAT A PRICE-FIXING
CLAUSE IN A LICENSE TO MANUFACTURE UNDER A VALID PATENT FALLS OUTSIDE
THE INTERDICT OF THE ANTI-TRUST ACTS.  BEMENT V. NATIONAL HARROW CO.,
186 U.S. 70.  FN5 THE POWER TO FIX THE PRICE OF PATENTED ARTICLES IS
PART OF THE PATENT GRANT.  IT IS A MODE OF MAINTAINING THE INTEGRITY OF
A PATENT AND AS SUCH IS SANCTIONED BY PUBLIC POLICY.  ALL THAT THE SOLA
CASE HELD, AND THE ONLY THING IT HELD, WAS THAT A VALID PATENT IS
INDISPENSABLE TO THIS RIGHT TO FIX PRICES. 

BUT WHETHER AN INVENTOR HAS A VALID PATENT IS A MATTER OF INCREASING
UNCERTAINTY.  HITHERTO, UNDER THE ESTOPPEL DOCTRINE, A PATENTEE COULD
BE ASSURED THAT HE WOULD NOT HAVE TO LITIGATE THE VALIDITY OF HIS
PATENT WITH THOSE TO WHOM HE GRANTS LICENSE RIGHTS UNDER IT.  UNDER THE
PRESENT DECISION, HE CANNOT HAVE THIS ASSURANCE OF FREEDOM FROM
LITIGATION IF, UNDER REASONABLE BELIEF THAT HE HAS A VALID PATENT, HE
INSERTS A PRICE-FIXING CLAUSE IN THE LICENSE, EVEN THOUGH AFTERWARDS HE
MERELY ASKS FOR ROYALTIES. 

WHAT MATTERS IS NOT MERELY THAT A PATENTEE MUST NOW CHOOSE BETWEEN
TWO SAFEGUARDS OF HIS PATENT GRANT.  IN THE SOLA CASE THE LICENSOR
ASKED FOR THE ENFORCEMENT OF A PRICING AGREEMENT.  HERE THE PRICE
FIXING AGREEMENT IS NOT BROUGHT INTO QUESTION AND THE PATENTEE STANDS
ON HIS ESTOPPEL.  THIS IMPORTANT DIFFERENCE IS DISREGARDED, THE SOLA
CASE IS DEEMED CONTROLLING, AND THE ESTOPPEL IS LEFT TO FEND FOR ITSELF
AS A LEGAL STRAY.  BY ITS SILENCE, AS BY ITS REASONING IN APPLYING THE
SOLA CASE, THE DECISION WILL ENGENDER NATURAL DOUBTS AS TO THE
CONTINUING VALIDITY OF THE ESTOPPEL DOCTRINE EVEN IN THOSE CASES WHERE
NO PRICING AGREEMENT HAD EVER EXISTED.  THE RESULT IS THAT ALL FUTURE
ARRANGEMENTS BETWEEN LICENSOR AND LICENSEE ARE OVERHUNG BY A CLOUD OF
DOUBT AS TO WHAT ONE WHO BELIEVES THAT HE HOLDS A VALID PATENT SHOULD
DO IN GRANTING LICENSES UNDER IT. 

IF HE INSISTS ON A PRICE AGREEMENT TO HELP MAINTAIN THE INTEGRITY OF
HIS BUSINESS, HE RUNS THE RISK OF LOSING HIS ROYALTIES SINCE THE MERE
EXISTENCE OF THE PRICE-FIXING CLAUSE (WHICH IS ALL WE HAVE HERE) MAY
FIND HIM ENTIRELY IN THE COLD IF IT SHOULD TURN OUT THAT THE PATENT IS
NOT SUSTAINED.  SO LONG AS THE ESTOPPEL DOCTRINE AS SUCH STANDS
UNREJECTED, THE PATENTEE MAY, THEREFORE, PREFER TO FOREGO PRICE-FIXING
AND BE SATISFIED WITH THE BIRD IN THE HAND IN RELIANCE ON ESTOPPEL. 
BUT THE UPSHOT OF THE PRESENT DECISION IS THAT THE COURT CREATES AN
UNFAIR UNCERTAINTY AS TO THE CONTINUED VITALITY OF THE HISTORIC
ESTOPPEL DOCTRINE.  THE RESULT IS THAT THE PATENTEE WHO FOREGOES HIS
RIGHT TO MAINTAIN PRICES IN ORDER TO MAKE CERTAIN THAT HE CAN AT LEAST
COLLECT HIS PATENT ROYALTIES WITHOUT THE COST AND UNCERTAINTY OF
LITIGATION, MAY FIND HIMSELF CAUGHT IN THE OPTIMISM OF HIS BELIEF AS TO
THE VITALITY OF THE ESTOPPEL DOCTRINE UNEMBARRASSED BY ANY PRICE-FIXING
PROVISION.  FOR HE MAY HAVE GIVEN UP WHAT HE MIGHT OTHERWISE ASSERT AS
A PATENTEE TO MAKE SURE THAT HE CAN IN ANY EVENT HAVE WHAT ESTOPPEL
WOULD GIVE HIM.  IT WOULD SEEM FAIR TO PRONOUNCE NOW THAT THE DOCTRINE
OF ESTOPPEL HAS OR HAS NOT SURVIVED SO THAT THOSE WHO DEEM THEMSELVES
HOLDERS OF PATENT RIGHTS MIGHT NOT SUFFER BECAUSE THEY ASSUMED THAT THE
COURT WOULD PRESERVE THAT WHICH BY NO INTIMATION IT PURPORTS TO
JETTISON. 

(10)  THE PROBLEM BEFORE THE COURT CAN BE TREATED AS THOUGH IT WAS
THE SAME AS THAT IN THE SOLA CASE ONLY IF A DISTINCTION WITH A
DIFFERENCE MAKES NO DIFFERENCE.  IT IS ONE THING TO REFUSE TO ENFORCE A
CONTRACT RESTRAINING TRADE BY PRICE-FIXING UNLESS POSITIVE
JUSTIFICATION IS SHOWN IN THE FORM OF A VALID PATENT.  IT IS QUITE
ANOTHER TO USE THE EXCUSE OF AN INOPERATIVE PRICE-FIXING CLAUSE TO
ALLOW A LICENSEE TO ESCAPE HIS OTHERWISE VALID PROMISE TO PAY
ROYALTIES.  FN6  NOWHERE IN THE SOLA CASE DID THE COURT INTIMATE THAT
THE DECISION RESTED UPON THE IMPORTANCE TO THE PUBLIC ECONOMY OF
ALLOWING CHALLENGE TO THE VALIDITY OF A PATENT BY THOSE PARTICULAR
MEMBERS OF THE PUBLIC WHO IN A FAIR BARGAIN HAD AGREED NOT TO DO SO.
IN FACT, THE DOCTRINE OF ESTOPPEL, FLOWING FROM KINSMAN V. PARKHURST
AND APPLIED IN UNITED STATES V. HARVEY STEEL CO., WAS EXPLICITLY NOTED
ONLY TO BE PUT TO ONE SIDE BECAUSE "HERE A DIFFERENT QUESTION IS
PRESENTED."  317 U.S. AT 175.  IT WAS AGAIN PUT ASIDE IN ALTVATER V.
FREEMAN, 319 U.S. 359, 364.  FN7  THE QUESTION WHICH THOSE CASES DID
NOT HAVE TO MEET SHOULD NOW BE MET OTHERWISE THAN BY DISREGARD.  THE
COURT'S ESSENTIAL REASONING WOULD APPLY EQUALLY WHERE THE LICENSE NEVER
ATTEMPTED TO FIX PRICES.  IF A DOCTRINE THAT WAS VITAL LAW FOR MORE
THAN NINETY YEARS WILL BE FOUND TO HAVE NOW BEEN DEPRIVED OF LIFE, WE
OUGHT AT LEAST TO GIVE IT DECENT PUBLIC BURIAL. 

FN1  THE EARLY CASES ARE COLLECTED IN 14 ANN. CAS. 1184.  NOTE ALSO
THE UNANIMITY AMONG THE AUTHORS OF TREATISES.  AMDUR, PATENT LAW AND
PRACTICE 598; ELLIS, PATENT ASSIGNMENTS AND LICENSES SEC. 692 ET SEQ.;
2 FROST, PATENT LAW AND PRACTICE 201; MOULTON, PATENTS 244; RIVISE AND
CAESAR, PATENTABILITY AND VALIDITY SEC. 10; 2 ROBINSON, PATENTS SEC.
820; 2 WALKER, PATENTS (DELLER'S ED.)  SEC. 383.  AND SEE THE CASES
CITED, ESPECIALLY IN WALKER, PATENTS, SUPRA. 

FN2  CF. EUREKA COMPANY V. BAILEY COMPANY, 11 WALL.  488, 492;
ECLIPSE BICYCLE COMPANY V. FARROW, 199 U.S. 581, 587. 

FN3  SEE PATENT ACT OF 1790, 1 STAT. 109; PATENT ACT OF 1793, 1 STAT.
318; PATENT ACT OF 1836, 5 STAT. 117; PATENT ACT OF 1870, 16 STAT.
198.  SEE ALSO THE SUBSEQUENT MINOR ENACTMENTS, SUMMARIZED, J. PAT. 
OFF.  SOC., JULY 1936, PP. 103-22.  AND SEE 1 WALKER, PATENTS (DELLER'S
ED.)  APPENDIX. 

FN4  "IN THE INSTANT CASE THE COURT HAS NOT BEEN REQUESTED EITHER
DIRECTLY OR INDIRECTLY TO REQUIRE MACGREGOR TO MAINTAIN WESTINGHOUSE
PRICES.  BY HIS OWN TESTIMONY HE HAS NOT MAINTAINED THEM.  THE PRICE
FIXING CLAUSE IS NOT IN ISSUE.  IT IS RAISED MERELY AS A DEFENSE TO A
SUIT FOR ACCOUNTING AND PAYMENT OF ACCRUED ROYALTIES."  DISCUSSION OF
FINDINGS BY TRIAL COURT IN THE MACGREGOR CASE. 

AS TO THE KATZINGER CASE THE DISTRICT COURT OPINION FOUND THAT "NO
PRICE FIXING BY THE RESPONDENT HAS BEEN PROVED BY THE PETITIONER....
AT NO TIME DID THE RESPONDENT ATTEMPT TO CARRY IT OUT AND THE
RESPONDENT WAS AT ALL TIMES WILLING TO HAVE SAME REMOVED FROM THE
CONTRACT."  FURTHER, A SPECIFIC FINDING OF FACT WAS THAT "RESPONDENT
WAS ALWAYS WILLING TO ELIMINATE THE PRICE FIXING PROVISIONS OF THE
LICENSE AGREEMENT, AND THESE PROVISIONS TERMINATED IPSO FACTO UPON
TERMINATION OF THE LICENSE BY PETITIONER."  IT WAS ON THE BASIS OF THE
FACTS SO FOUND BY THE DISTRICT COURT THAT THE CIRCUIT COURT OF APPEALS
HELD, WHEN THE ESTOPPEL ISSUE WAS BEFORE IT, THAT THE MERE PRESENCE OF
A PRICE-FIXING CLAUSE IN THE LICENSING AGREEMENT, WHATEVER ITS SETTING
AND HOWEVER INOPERATIVE, PRECLUDED ESTOPPEL AGAINST THE LICENSEE.  139
F.2D 291.  WITH THE ESTOPPEL ISSUE THUS ELIMINATED, THE CASE WAS
RETURNED TO THE DISTRICT COURT TO PASS ON THE VALIDITY OF THE PATENT. 
INASMUCH AS THE CIRCUIT COURT OF APPEALS HAD FOUND THAT THE DISTRICT
COURT HAD ERRED IN ITS DECREE ENFORCING ESTOPPEL, THE PREVIOUS FINDINGS
REGARDING ESTOPPEL BECAME IRRELEVANT AND FELL WITH THE REVERSED
DECREE.  THESE FINDINGS, HOWEVER, DID NOT CEASE TO BE PART OF THE
RECORD BEFORE THE CIRCUIT COURT OF APPEALS ON THE FIRST APPEAL.  IT IS
THAT DECISION, WITH THE RECORD ON WHICH IT IS BASED, THAT IS NOW BEFORE
US.  IF THE CIRCUIT COURT OF APPEALS HAD ENFORCED ESTOPPEL, THE DECREE
OF THE DISTRICT COURT AND THE FINDINGS ON WHICH IT IS BASED WOULD NOT
HAVE BEEN VACATED.  THE FINDINGS THAT WERE BEFORE THE CIRCUIT COURT OF
APPEALS ON THE FIRST APPEAL ARE NOW BEFORE US ON REVIEW OF THAT COURT'S
DECISION. 

THE LICENSE AGREEMENT PROVIDED FOR ROYALTIES BASED ON A PERCENTAGE OF
THE NET SALES.  THE AMOUNT OF THE NET SALES WAS NOT FIXED BY AGREEMENT
EXCEPT INSOFAR AS CERTAIN SCHEDULED ARTICLES CALLED FOR A MINIMUM
PRICE.  THE RECORD DOES NOT SHOW THE PRICES AT WHICH THE SALES WERE
MADE.  NOT ONLY THAT, THE CLAIM OF THE LICENSEE WAS THAT THE ARTICLES
FOR WHICH ROYALTIES WERE CLAIMED WERE OUTSIDE THE LICENSE.  PLAINLY
SUCH ARTICLES WERE NOT INCLUDED ON THE MINIMUM PRICE SCHEDULE AND COULD
NOT HAVE BEEN SOLD ACCORDING TO THE SCHEDULED PRICE LIST.  THE CLAIM
FOR ROYALTIES, THEREFORE, WAS NOT A CLAIM FOR ROYALTIES AT FIXED
PRICES. 

FN5  UPON FULL CONSIDERATION THE PRINCIPLE OF THE BEMENT CASE WAS
REAFFIRMED AND APPLIED IN UNITED STATES V. GENERAL ELECTRIC CO., 272
U.S. 476.  THE LATTER CASE IN TURN WAS CITED WITH APPROVAL IN CARBICE
CORP. V. AMERICAN PATENTS CORP., 283 U.S. 27, 31.  IT IS RELEVANT TO
NOTE THAT MR. JUSTICE BRANDEIS JOINED IN THE GENERAL ELECTRIC OPINION
AND HIMSELF WROTE THE CARBICE OPINION.  NO MEMBER OF THIS COURT HAS
BEEN MORE RESOURCEFULLY ALERT TO PROTECT THE PUBLIC INTEREST FROM UNDUE
EXTENSION OF THE PATENT MONOPOLY WHILE AT THE SAME TIME OBSERVING THE
RIGHTS WHICH CONGRESS HAS SEEN FIT TO CONFER BY THE PATENT GRANT. 

FN6  THE CONSIDERATIONS THAT DETERMINE THE GRANTING OF A LICENSE ON
PAYMENT OF ROYALTIES ARE DISTINCT FROM THOSE THAT UNDERLIE AN
ADDITIONAL CLAUSE FOR PRICE-FIXING.  THEY ARE NOT INTERDEPENDENT IN
FACT AND WERE NOT SO TREATED BY THE PARTIES; NO ARTIFICIAL NOTION
REGARDING CONSIDERATION REQUIRES THAT THEY BE TREATED AS
INTERDEPENDENT.  ON LESSER CONSIDERATIONS OF POLICY THAN HAVE GUIDED
THE COURSE OF PATENT LAW, THIS COURT HAS REFUSED TO TREAT SEPARATE
PROVISIONS OF A CONTRACT AS INTEGRATED.  SEE PHILADELPHIA, WILMINGTON &
BALTIMORE RAILROAD CO. V. HOWARD, 13 HOW.  307, 339; POLLAK V. BRUSH
ELECTRIC ASSOCIATION, 128 U.S. 446, 455. 

FN7  SCOTT PAPER CO. V. MARCALUS CO., 326 U.S. 249, WENT ON THE
GROUND THAT AN EARLIER EXPIRED PATENT HAD PUT THE DEVICE IN QUESTION
INTO THE PUBLIC DOMAIN. 
..END :




















HARVESTER CO. V. EVATT, 329 U.S. 416 


NO. 75.  ARGUED DECEMBER 12, 1946.  - DECIDED JANUARY 6, 1947.  - 146
OHIO ST. 58, 64 N.E.2D 53, AFFIRMED. 


UNDER SEC. 5495, OHIO GEN. CODE, OHIO LEVIED A FRANCHISE TAX ON
APPELLANT FOR THE "PRIVILEGE OF DOING BUSINESS" IN THE STATE. 
APPELLANT OWNS AND OPERATES SEVERAL FACTORIES, SALES AGENCIES,
WAREHOUSES, AND RETAIL STORES IN OHIO AND NUMEROUS FACTORIES, SALES
AGENCIES, AND RETAIL STORES IN OTHER STATES.  GOODS MANUFACTURED IN
OHIO ARE SOLD PARTLY IN OHIO AND PARTLY IN OTHER STATES.  SOME GOODS
MANUFACTURED IN OTHER STATES ARE SOLD BY APPELLANT'S SALES AGENCIES IN
OHIO TO CUSTOMERS IN OHIO.  UNDER SEC. 5498, OHIO GEN. CODE, THE TAX
BASE IS COMPUTED AS FOLLOWS: THE TOTAL VALUE OF THE TAXPAYER'S ISSUED
CAPITAL STOCK IS DIVIDED IN HALF.  ONE HALF IS MULTIPLIED BY A
FRACTION, WHOSE NUMERATOR IS THE VALUE OF ALL THE TAXPAYER'S PROPERTY
IN OHIO AND WHOSE DENOMINATOR IS THE TOTAL VALUE OF ALL ITS PROPERTY
WHEREVER LOCATED.  THE OTHER HALF IS MULTIPLIED BY A FRACTION WHOSE
NUMERATOR IS THE TOTAL VALUE OF "BUSINESS DONE" IN OHIO AND WHOSE
DENOMINATOR IS THE TOTAL VALUE OF BUSINESS DONE EVERYWHERE.  THE SUM OF
THESE TWO PRODUCTS IS THE TAX BASE.  HELD: 

1.  THIS DOES NOT CONSTITUTE A TAX ON SALES MADE OUTSIDE OHIO IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, SINCE
IT IS A FRANCHISE TAX FOR THE PRIVILEGE OF DOING BUSINESS IN THE
STATE.  PP. 419-421. 

(A)  THE FACT THAT THE STATE CHOSE TO MEASURE THE TAX ON THE BUSINESS
OF MANUFACTURING DONE IN THE STATE BY THE VALUE OF THE PRODUCTS
(INCLUDING THOSE SOLD OUT OF THE STATE) DOES NOT TRANSFORM THE TAX ON
THAT BUSINESS TO A TAX ON SALES OUT OF THE STATE.  P. 420. 

(B)  TREATMENT OF SALES WITHIN OHIO OF PRODUCTS MANUFACTURED
ELSEWHERE AS "BUSINESS DONE" IN OHIO DID NOT RESULT IN TAXING OUT-OF
STATE OR INTERSTATE TRANSACTIONS OR SALES IN VIOLATION OF THE DUE
PROCESS CLAUSE, SINCE THE BUSINESS OF OHIO SALES AGENCIES AND THEIR
SALES TO OHIO CUSTOMERS WERE INTRASTATE ACTIVITIES.  PP. 420-421. 

2.  THE TAX DOES NOT VIOLATE THE COMMERCE CLAUSE, SINCE THE PURPOSE OF
THE FORMULA WAS TO ARRIVE AT A FAIR CONCLUSION AS TO WHAT WAS THE VALUE
OF THE INTRASTATE BUSINESS AND IT HAS NOT BEEN DEMONSTRATED THAT IT
ACHIEVES AN UNFAIR RESULT.  PP. 421-423. 

(A)  A STATE'S TAX LAW IS NOT TO BE NULLIFIED MERELY BECAUSE THE
RESULT IS ACHIEVED THROUGH A FORMULA WHICH INCLUDES CONSIDERATION OF
INTERSTATE AND OUT-OF-STATE TRANSACTIONS IN THEIR RELATION TO THE
INTRASTATE PRIVILEGE.  P. 423. 

(B)  NO MULTIPLICATION OF THIS TAX THROUGH ITS IMPOSITION BY OTHER
STATES IS INVOLVED, SINCE THE TAX IS LEVIED ONLY AGAINST THE PRIVILEGE
OF DOING LOCAL BUSINESS OF MANUFACTURING AND SELLING IN OHIO AND NO
OTHER STATE CAN TAX THAT PRIVILEGE.  P. 423. 

INTERNATIONAL HARVESTER CO. V. EVATT, TAX COMMISSIONER. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

THE SUPREME COURT OF OHIO AFFIRMED A DECISION OF OHIO'S BOARD OF TAX
APPEALS FIXING THE AMOUNT OWED BY APPELLANT FOR ITS STATE CORPORATION
FRANCHISE TAX ASSESSED PURSUANT TO SECS. 5495-5499, OHIO GEN. CODE. 
146 OHIO ST. 58, 64 N.E.2D 53.  AFFIRMED, P. 423. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE SUPREME COURT OF OHIO AFFIRMED A DECISION OF THAT STATE'S BOARD
OF TAX APPEALS FIXING THE AMOUNT OWED BY APPELLANT FOR ITS STATE
CORPORATION FRANCHISE TAX FOR THE YEARS 1935 TO 1940, INCLUSIVE.  146
OHIO STATE 58, 64 N.E.2D 53.  IN AFFIRMING, THE OHIO COURT REJECTED
APPELLANT'S CONTENTION THAT THE CONTROLLING TAX ACT, SECS. 5495-5499,
OHIO GEN. CODE, AS APPLIED TO APPELLANT, WAS IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND THE COMMERCE CLAUSE OF
THE FEDERAL CONSTITUTION.  THE CASE IS HERE ON APPEAL UNDER 28 U.S.C.
SEC. 344.  APPELLANT REPEATS ITS ARGUMENTS AS TO INVALIDITY OF THE TAX,
BUT ONLY AS TO THE YEARS 1937 TO 1940, INCLUSIVE. 

CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE MUST PAY A TAX OR
FEE FOR THE "PRIVILEGE OF DOING BUSINESS" OR "OWNING OR USING A PART OR
ALL OF ITS CAPITAL OR PROPERTY" OR "HOLDING A CERTIFICATE  ...
AUTHORIZING IT TO DO BUSINESS IN THIS STATE."  IT IS NOT DENIED THAT
APPELLANT OWED A FRANCHISE TAX UNDER THIS SECTION, FOR IT HELD A
CERTIFICATE TO DO BUSINESS IN OHIO DURING ALL THE YEARS IN QUESTION. 
IT ALSO OWNED AND OPERATED TWO LARGE FACTORIES AT SPRINGFIELD, OHIO,
WHICH PRODUCED MILLIONS OF DOLLARS WORTH OF GOODS.  AND IT OPERATED
FOUR BRANCH SELLING ESTABLISHMENTS ASSOCIATED WITH FOUR WAREHOUSES, AND
FOURTEEN RETAIL STORES, ALL LOCATED AT VARIOUS PLACES IN OHIO, WHICH
STORED AND SOLD GOODS PRODUCED AT THE OHIO FACTORY. 

BUT APPELLANT ALSO OWNS AND OPERATES SIXTEEN FACTORIES, NEARLY A
HUNDRED SELLING AGENCIES, AND NUMEROUS RETAIL STORES IN OTHER STATES. 
GOODS PRODUCED AT ITS OHIO FACTORIES ARE NOT ONLY SOLD IN OHIO, BUT IN
ADDITION, ARE SHIPPED FOR STORAGE TO OUT-OF-OHIO WAREHOUSES TO BE SOLD
BY OUT-OF-OHIO SELLING AGENCIES TO OUT-OF-OHIO CUSTOMERS.  SOME ARE
SHIPPED DIRECTLY TO OUT-OF-OHIO CUSTOMERS ON ORDERS FROM OUT-OF-OHIO
SELLING AGENCIES.  CONVERSELY, GOODS MANUFACTURED BY APPELLANT OUT-OF
OHIO ARE SHIPPED TO ITS OHIO WAREHOUSES, AND SOLD BY ITS OHIO SELLING
AGENCIES TO OHIO CUSTOMERS.  APPELLANT'S CLAIM IS THAT THE AMOUNT OF
THE TAX ASSESSED AGAINST IT HAS BEEN DETERMINED IN SUCH MANNER THAT A
PART OF IT IS FOR SALES MADE OUTSIDE OHIO AND ANOTHER PART FOR
INTERSTATE SALES.  THESE CONSEQUENCES RESULT, APPELLANT ARGUES, FROM
THE FORMULA USED BY OHIO IN DETERMINING THE AMOUNT AND VALUE OF OHIO
MANUFACTURING AND SALES, AS DISTINGUISHED FROM INTERSTATE AND OUT-OF
STATE SALES. 

THE TAX IS COMPUTED UNDER THE OHIO STATUTE IN THE FOLLOWING MANNER:
TAXPAYER'S TOTAL CAPITAL STOCK REPRESENTS BUSINESS AND PROPERTY
CONDUCTED AND LOCATED IN OHIO.  TO DETERMINE THIS, THE TOTAL VALUE OF
ISSUED CAPITAL STOCK  FN1  IS DIVIDED IN HALF.  ONE HALF IS THEN
MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH IS THE VALUE OF ALL
THE TAXPAYER'S OHIO PROPERTY, AND THE DENOMINATOR OF WHICH IS THE TOTAL
VALUE OF ALL ITS PROPERTY WHEREVER OWNED.  THE OTHER HALF IS MULTIPLIED
BY ANOTHER FRACTION WHOSE NUMERATOR IS THE TOTAL VALUE OF THE "BUSINESS
DONE" IN THE STATE AND WHOSE DENOMINATOR IS COUNTRY-WIDE BUSINESS. 
ADDITION OF THESE TWO PRODUCTS GIVES THE TAX BASE, WHICH, WHEN
MULTIPLIED BY THE TAX RATE OF 1/10 OF 1%, PRODUCES THE AMOUNT OF THE
FRANCHISE TAX. 

IN THE "BUSINESS DONE" NUMERATOR, THE STATE INCLUDED AS A PART OF
OHIO BUSINESS AN AMOUNT EQUAL TO THE SALES PROCEEDS OF A LARGE PART OF
THE GOODS MANUFACTURED AT APPELLANT'S OHIO PLANTS, NO MATTER WHERE THE
GOODS HAD BEEN SOLD OR DELIVERED.  FN2  A PART OF THE MEASURE OF THE
TAX IS CONSEQUENTLY AN AMOUNT EQUAL TO THE SALES PRICE OF OHIO
MANUFACTURED GOODS SOLD AND DELIVERED TO CUSTOMERS IN OTHER STATES. 
APPELLANT CONTENDS THAT THE STATE HAS THUS TAXED SALES MADE OUTSIDE OF
OHIO IN VIOLATION OF THE DUE PROCESS CLAUSE.  A COMPLETE ANSWER TO THIS
DUE PROCESS CONTENTION IS THAT OHIO DID NOT TAX THESE SALES.  ITS
STATUTE IMPOSED THE FRANCHISE TAX FOR THE PRIVILEGE OF DOING BUSINESS
IN OHIO FOR PROFIT.  THE STATE SUPREME COURT CONSTRUED THE STATUTE AS
IMPOSING THE TAX ON CORPORATIONS FOR ENGAGING IN BUSINESS SUCH AS THAT
IN WHICH TAXPAYER ENGAGED.  ONE BRANCH OF THAT BUSINESS WAS
MANUFACTURING.  IT HAS LONG BEEN ESTABLISHED THAT A STATE CAN TAX THE
BUSINESS OF MANUFACTURING.  THE FACT THAT IT CHOSE TO MEASURE THE
AMOUNT OF SUCH A TAX BY THE VALUE OF THE GOODS THE FACTORY HAS
PRODUCED, WHETHER OF THE CURRENT OR A PAST YEAR, DOES NOT TRANSFORM THE
TAX ON MANUFACTURING TO SOMETHING ELSE.  AMERICAN MFG. CO. V. ST.
LOUIS, 250 U.S. 459; HOPE NATURAL GAS CO. V. HALL, 274 U.S. 284, 288
289; UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165, 189-190; WALLACE V.
HINES, 253 U.S. 66, 69; FREEMAN V. HEWIT, 329 U.S. 249, 255.  SEE ALSO
ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 313-314, AND CASES CITED IN
NOTES 14 AND 15. 

IN THE OHIO "BUSINESS DONE" NUMERATOR, WE ASSUME THE STATE ALSO
INCLUDED SALES MADE BY OHIO BRANCHES TO OHIO CUSTOMERS OF GOODS
MANUFACTURED AND DELIVERED TO THESE OHIO CUSTOMERS FROM OUT-OF-OHIO
FACTORIES.  FN3  APPELLANT'S BUSINESS PRACTICE WAS TO CONDUCT AND
ACCOUNT FOR ITS SALES AGENCIES' ACTIVITIES SEPARATELY AND DISTINCTLY
FROM ITS FACTORY OPERATIONS.  THE STATE FOLLOWED THIS DISTINCTION.  IT
TREATED THE SALES AGENCIES AS CONDUCTING ONE TYPE OF BUSINESS AND THE
FACTORIES ANOTHER.  THUS IT MEASURED THE VALUE OF THE OHIO SALES
AGENCIES' BUSINESS BY THE TOTAL AMOUNT OF THE PRECEDING YEAR'S OHIO
SALES OF GOODS MANUFACTURED OUTSIDE OF OHIO AS WELL AS THOSE
MANUFACTURED IN OHIO.  HERE AGAIN, APPELLANT'S CONTENTION THAT THIS
RESULTED IN TAXING OUT-OF-STATE OR INTERSTATE TRANSACTIONS OR SALES IN
VIOLATION OF THE DUE PROCESS CLAUSE IS WHOLLY WITHOUT SUBSTANCE.  THE
OHIO SALES AGENCIES' BUSINESS AND THEIR SALES TO OHIO CUSTOMERS WERE
INTRASTATE ACTIVITIES.  INTERNATIONAL HARVESTER CO. V. DEPARTMENT OF
TREASURY, 322 U.S. 340.  WHAT EFFECT INCLUSION OF THIS ELEMENT IN THE
"BUSINESS DONE" NUMERATOR WOULD HAVE WERE THESE TRANSACTIONS NOT
INTRASTATE IS A QUESTION WE NEED NOT NOW DECIDE. 

WHAT WE HAVE SAID DISPOSES OF THE ONLY GROUNDS URGED TO SUPPORT THE
DUE PROCESS CONTENTION.  IT ALSO ANSWERS MOST OF THE ARGUMENT MADE
AGAINST THE OHIO STATUTE ON THE GROUND THAT ITS APPLICATION TO
APPELLANT UNDULY BURDENS INTERSTATE COMMERCE AND THEREFORE VIOLATES THE
COMMERCE CLAUSE.  OF COURSE, THE COMMERCE CLAUSE DOES NOT BAR A STATE
FROM IMPOSING A TAX BASED ON THE VALUE OF THE PRIVILEGE TO DO AN
INTRASTATE BUSINESS MERELY BECAUSE IT ALSO DOES AN INTERSTATE
BUSINESS.  FORD MOTOR CO. V. BEAUCHAMP, 308 U.S. 331, 336.  NOR DOES
THE FACT THAT A COMPUTATION SUCH AS THAT UNDER OHIO'S LAW INCLUDES
RECEIPTS FROM INTERSTATE SALES AFFECT THE VALIDITY OF A FAIR
APPORTIONMENT.  SEE E.G., HUMP HAIRPIN CO. V. EMMERSON, 258 U.S. 290;
UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, 254 U.S. 113; AMERICAN MFG.
CO. V. ST. LOUIS, SUPRA; INTERNATIONAL SHOE CO. V. SHARTEL, 279 U.S.
429, 433; WESTERN CARTRIDGE CO. V. EMMERSON, 281 U.S. 511.  AND HERE,
IT CLEARLY APPEARS FROM THE BACKGROUND OF OHIO'S TAX LEGISLATION THAT
THE WHOLE PURPOSE OF THE STATE FORMULA WAS TO ARRIVE, WITHOUT UNDUE
COMPLICATION, AT A FAIR CONCLUSION AS TO WHAT WAS THE VALUE OF THE
INTRASTATE BUSINESS FOR WHICH ITS FRANCHISE WAS GRANTED.  IN OCTOBER,
1924, THIS COURT STRUCK DOWN OHIO'S THEN CORPORATION FRANCHISE TAX ON
THE GROUND THAT IT DID NOT MAKE AN APPORTIONMENT BETWEEN LOCAL AND
INTERSTATE BUSINESS SO AS TO CONFINE ITS TAX TO LOCAL BUSINESS ONLY. 
THE TAX WAS ALSO HELD TO BE IN VIOLATION OF THE EQUAL PROTECTION
CLAUSE.  AIR-WAY ELECTRIC APPLIANCE CORPORATION V. DAY, 266 U.S. 71. 
IN APRIL 1925, THE LEGISLATURE OF OHIO PASSED A NEW ACT EXPRESSLY TO
CURE THE DEFECTS THIS COURT HAD FOUND IN THE OLD LAW.  FN4  111 OHIO
LAWS 471.  THAT 1925 ACT, AS SLIGHTLY AMENDED,  FN5  IS THE LAW UNDER
WHICH THE PRESENT APPORTIONMENT WAS MADE. 

PLAINLY OHIO SOUGHT TO TAX ONLY WHAT SHE WAS ENTITLED TO TAX, AND
THERE IS NOTHING ABOUT APPLICATION OF THE FORMULA IN THIS CASE THAT
INDICATES A POTENTIALLY UNFAIR RESULT UNDER ANY CIRCUMSTANCES.  IT IS
NOT EVEN CONTENDED HERE THAT THE AMOUNT OF THESE TAXES COULD BE
CONSIDERED TO BEAR AN UNJUST OR IMPROPER RELATION TO THE VALUE OF THE
PRIVILEGE OF DOING BUSINESS IN OHIO IF THE LEGISLATURE HAD IMPOSED A
FLAT FRANCHISE TAX OF THE SAME AMOUNTS FOR THE RESPECTIVE YEARS WHICH
APPLICATION OF THIS FORMULA HAS PRODUCED.  SEE HUMP HAIRPIN CO. V.
EMMERSON, SUPRA AT 296.  FURTHERMORE, THIS COURT HAS LONG REALIZED THE
PRACTICAL IMPOSSIBILITY OF A STATE'S ACHIEVING A PERFECT APPORTIONMENT
OF EXPANSIVE, COMPLEX BUSINESS ACTIVITIES SUCH AS THOSE OF APPELLANT,
AND HAS DECLARED THAT "ROUGH APPROXIMATION RATHER THAN PRECISION" IS
SUFFICIENT.  ILLINOIS CENTRAL RY. V. MINNESOTA, 309 U.S. 157, 161. 
UNLESS A PALPABLY DISPROPORTIONATE RESULT COMES FROM AN APPORTIONMENT,
A RESULT WHICH MAKES IT PATENT THAT THE TAX IS LEVIED UPON INTERSTATE
COMMERCE RATHER THAN UPON AN INTRASTATE PRIVILEGE, THIS COURT HAS NOT
BEEN WILLING TO NULLIFY HONEST STATE EFFORTS TO MAKE APPORTIONMENTS. 
SEE CASES COLLECTED IN OPINION OF MR. CHIEF JUSTICE STONE, DISSENTING,
NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292, 325.  A STATE'S TAX LAW
IS NOT TO BE NULLIFIED MERELY BECAUSE THE RESULT IS ACHIEVED THROUGH A
FORMULA WHICH INCLUDES CONSIDERATION OF INTERSTATE AND OUT-OF-STATE
TRANSACTIONS IN THEIR RELATION TO THE INTRASTATE PRIVILEGE.  SINCE IT
HAS NOT BEEN DEMONSTRATED THAT THE APPORTIONMENT HERE ACHIEVES AN
UNFAIR RESULT, CF. HANS REES' SONS, INC. V. NORTH CAROLINA, 283 U.S.
123, 134, 135, AND SINCE IT IS ASSESSED ONLY AGAINST THE PRIVILEGE OF
DOING LOCAL OHIO BUSINESS OF MANUFACTURING AND SELLING, WE DO NOT COME
TO THE QUESTION, ARGUED BY APPELLANT, OF POSSIBLE MULTIPLICATION OF
THIS TAX BY REASON OF ITS IMPOSITION BY OTHER STATES.  NONE OF THEM CAN
TAX THE PRIVILEGE OF OPERATING FACTORIES AND SALES AGENCIES IN OHIO. 
AFFIRMED. 

FN1  SECTION 5498 ALSO SETS OUT IN SOME DETAIL THE FACTORS TO BE
CONSIDERED, AND THOSE NOT TO BE CONSIDERED, IN CALCULATING THE TOTAL
VALUE OF A TAXPAYER'S ISSUED AND OUTSTANDING STOCK.  THESE PROVISIONS
ARE NOT HERE AT ISSUE. 

FN2  RULE 275, TAX COMMISSIONER OF OHIO, OCT. 13, 1939, EXEMPTED FROM
THE COMPUTATION ALL GOODS MANUFACTURED BY APPELLANT IN OHIO, BUT
SHIPPED TO APPELLANT'S OUT-OF-OHIO WAREHOUSES BEFORE SALE. 

FN3  THE STATE CONTENDS HERE THAT IT DID NOT INCLUDE IN THE
"BUSINESSDONE" NUMERATOR AN AMOUNT EQUAL TO THE PROCEEDS FROM SALES BY
OHIO BRANCHES TO OHIO CUSTOMERS OF GOODS WHICH WERE SHIPPED TO THE OHIO
CUSTOMERS FROM FACTORIES OUTSIDE OHIO.  APPELLANT INSISTS THAT IT DID. 
WE NEED NOT RESOLVE THIS CONTROVERSY, FOR WE THINK THE RESULT IS THE
SAME WHICHEVER VIEW IS TAKEN. 

FN4  IN VETOING THE BILL WHICH BECAME THE LAW, ON GROUNDS NOT HERE
RELEVANT, THE GOVERNOR OF OHIO SAID:  "THE SUPREME COURT DECISION, OF
COURSE, MADE IT NECESSARY FOR YOU TO DEVISE A BASIS FOR THE LEVY OF THE
TAX OTHER THAN ON THE AUTHORIZED CAPITALIZATION OF FOREIGN
CORPORATIONS.  YOU HAVE SEEN FIT TO EMBODY IN THE PENDING MEASURE AN
ASSET VALUE OR TOTAL NET WORTH BASIS FOR THE ASSESSMENT OF THE TAX ON
DOMESTIC CORPORATIONS AS WELL."  OHIO HOUSE JOURNAL 1925, VOL. 111,
874.  THE BILL WAS PASSED OVER HIS VETO. 

FN5  112 OHIO LAWS 410(1927); 113 OHIO LAWS 637(1929); 114 OHIO LAWS
714(1931); 115 OHIO LAWS 589(1933). 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I CONCUR IN THE OPINION AND JUDGMENT OF THE COURT.  BUT I DESIRE TO
ADD THAT, IN THE DUE PROCESS PHASE OF THE CASE, I FIND NO BASIS FOR
CONCLUSION THAT ANY OF THE TRANSACTIONS INCLUDED IN THE MEASURE OF THE
TAX WAS SO LACKING IN SUBSTANTIAL FACT CONNECTIONS WITH OHIO AS TO
PRECLUDE THE STATE'S USE OF THEM, CF. MCLEOD V. DILWORTH CO., 322 U.S.
327, DISSENTING OPINION AT 352-357, IF INDEED A LIMITATION OF THIS SORT
WERE MATERIAL TO AN APPORTIONMENT FOUND ON THE WHOLE TO BE FAIRLY
MADE.  FOR THE REST, AS THE COURT HOLDS, THE APPORTIONMENT CLEARLY IS
VALID. 
..END :












UNITED STATES V. SEATRAIN LINES, 329 U.S. 424 


NO. 61.  ARGUED DECEMBER 9, 1946.  - DECIDED JANUARY 6, 1947.  - 64
F.SUPP.  156, AFFIRMED. 


PURSUANT TO PART III OF THE INTERSTATE COMMERCE ACT, THE INTERSTATE
COMMERCE COMMISSION ISSUED TO A COMMON CARRIER BY WATER, WHOSE VESSELS
HAD SPECIAL FACILITIES FOR CARRYING LOADED RAILROAD CARS AND TANK SPACE
FOR LIQUID CARGOES IN BULK, A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY AUTHORIZING IT TO CARRY "COMMODITIES GENERALLY" BETWEEN
CERTAIN PORTS SUBJECT "TO SUCH TERMS, CONDITIONS, AND LIMITATIONS AS
ARE NOW, OR MAY HEREAFTER BE, ATTACHED TO THE EXERCISE OF SUCH
AUTHORITY BY THE COMMISSION."  LATER THE COMMISSION, ON ITS OWN MOTION
AND OVER THE PROTEST OF THE CARRIER, REOPENED THE PROCEEDINGS AND
ISSUED AN ORDER DIRECTING THE CANCELLATION OF THE ORIGINAL CERTIFICATE
AND THE ISSUANCE OF A NEW ONE, WHICH DEPRIVED THE CARRIER OF ITS RIGHT
TO CARRY "COMMODITIES GENERALLY" AND LIMITED IT TO CARRYING LIQUID
CARGOES IN BULK, EMPTY RAILROAD CARS, AND PROPERTY LOADED IN FREIGHT
CARS RECEIVED FROM AND DELIVERED TO RAIL CARRIERS.  HELD: 

1.  THE COMMISSION HAD NO AUTHORITY TO CANCEL THE ORIGINAL
CERTIFICATE.  PP. 428-433. 

2.  IT IS APPARENT FROM THE RECORD IN THIS CASE THAT THE PROCEEDINGS
WERE NOT REOPENED TO CORRECT A CLERICAL MISTAKE IN THE ISSUANCE OF THE
ORIGINAL CERTIFICATE BUT TO EXECUTE A SUBSEQUENTLY ADOPTED POLICY OF
HOLDING THAT A CERTIFICATE TO CARRY "COMMODITIES GENERALLY" DID NOT
AUTHORIZE WATER CARRIAGE OF FREIGHT CARS.  PP. 428-429. 

3.  THE COMMISSION HAS NO EXPRESS AUTHORITY TO REVOKE A CERTIFICATE
OF PUBLIC CONVENIENCE AND NECESSITY ISSUED TO WATER CARRIERS UNDER PART
III OF THE ACT.  PP. 429-431. 

4.  THE ORDER WAS NOT WITHIN THE COMMISSION'S AUTHORITY UNDER SEC.
309(D) TO FIX "TERMS, CONDITIONS AND LIMITATIONS" FOR WATER CARRIER
CERTIFICATE HOLDERS.  PP. 431-432. 

5.  NOR WAS IT WITHIN THE COMMISSION'S AUTHORITY UNDER SEC. 315(C) TO
"SUSPEND, MODIFY, OR SET ASIDE ITS ORDERS," SINCE THE ACT MAKES A CLEAR
DISTINCTION BETWEEN "ORDERS" AND "CERTIFICATES."  P. 432. 

6.  WHEN A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY HAS BEEN
FINALLY GRANTED TO A WATER CARRIER UNDER PART III OF THE ACT, AND THE
TIME FIXED FOR REHEARING HAS PASSED, IT IS NOT SUBJECT TO REVOCATION IN
WHOLE OR IN PART, EXCEPT AS SPECIFICALLY AUTHORIZED BY CONGRESS.  PP.
432-433. 

UNITED STATES ET AL. V. SEATRAIN LINES, INC. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF DELAWARE. 

HAVING ISSUED A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO A
WATER CARRIER UNDER PART III OF THE INTERSTATE COMMERCE ACT, THE
INTERSTATE COMMERCE COMMISSION SUBSEQUENTLY ORDERED ITS CANCELLATION
AND THE ISSUANCE OF A NEW CERTIFICATE SUBSTANTIALLY CURTAILING THE
RIGHTS GRANTED.  260 I.C.C. 430.  THE DISTRICT COURT SET ASIDE THE
COMMISSION'S ORDER.  64 F.SUPP.  156.  AFFIRMED, P. 433. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

SEATRAIN IS AND LONG HAS BEEN A COMMON CARRIER OF GOODS BY WATER. 
ITS HARBOR FACILITIES AND VESSELS HAVE BEEN CONSTRUCTED TO ENABLE IT TO
PERFORM A DISTINCTIVE TYPE OF WATER CARRIAGE.  LOADED RAILROAD CARS CAN
BE HOISTED AND TRANSPORTED IN ITS VESSELS, THEREBY ELIMINATING SUCH
THINGS AS TROUBLE, TIME AND BREAKAGE, SAID TO BE INCIDENT TO LOADING
AND UNLOADING GOODS FROM RAILROAD CARS.  SEE UNITED STATES V.
PENNSYLVANIA R. CO., 323 U.S. 612.  SEATRAIN VESSELS ALSO HAVE TANK
SPACE FOR CARRIAGE OF LIQUID CARGOES IN BULK.  FN1 

PART III OF THE INTERSTATE COMMERCE ACT, 54 STAT. 929, 49 U.S.C. SEC.
901, ET SEQ., SUBJECTED WATER CARRIERS TO THE JURISDICTION OF THE
INTERSTATE COMMERCE COMMISSION.  SECTION 309(A) OF THAT ACT REQUIRED
THEM TO OBTAIN CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY FROM
THE COMMISSION.  THE SAME SECTION CONTAINS A PROVISO COMMONLY REFERRED
TO AS THE GRANDFATHER CLAUSE.  IT PROVIDES THAT ANY WATER CARRIER, WITH
AN EXCEPTION NOT HERE MATERIAL, WHICH WAS IN BONA FIDE OPERATION AS A
COMMON CARRIER BY WATER ON JANUARY 1, 1940, SHALL BE ENTITLED TO A
CERTIFICATE TO CONTINUE OPERATIONS OVER THE ROUTE OR ROUTES WHICH IT
HAD BEEN SERVING PREVIOUS TO THAT DATE WITHOUT DETERMINATION BY THE
COMMISSION OF THE QUESTION OF PUBLIC CONVENIENCE AND NECESSITY. 

MAY 29, 1941, SEATRAIN FILED TWO APPLICATIONS WITH THE COMMISSION TO
OBTAIN CERTIFICATES FOR TWO DIFFERENT ROUTES, ONE OF WHICH IT HAD
OPERATED SINCE 1932, AND ANOTHER WHICH IT HAD BEGUN TO OPERATE IN 1940
SHORTLY AFTER PASSAGE OF THE WATER CARRIER PROVISIONS.  SEATRAIN'S
APPLICATION DESCRIBED ITS OPERATION ON EACH ROUTE AS THAT OF A "COMMON
CARRIER BY WATER OF COMMODITIES GENERALLY."  AFTER DUE NOTICE HAD BEEN
GIVEN TO ALL INTERESTED PARTIES, DIVISION 4 OF THE COMMISSION CONDUCTED
INVESTIGATIONS, SATISFIED ITSELF AS TO THE RIGHT OF SEATRAIN TO BE
GRANTED BOTH APPLICATIONS UNDER THE PROVISIONS OF THE ACT, MADE
APPROPRIATE FINDINGS, AND CONCLUDED THAT SEATRAIN WAS ENTITLED TO
ENGAGE IN TRANSPORTATION ON BOTH THE ROUTES AS "A COMMON CARRIER BY
WATER OF COMMODITIES GENERALLY."  A SINGLE CERTIFICATE TO CARRY
"COMMODITIES GENERALLY BETWEEN THE PORTS OF NEW YORK, N.Y., NEW
ORLEANS, LA., AND TEXAS CITY, TEX., BY WAY OF THE ATLANTIC OCEAN AND
THE GULF OF MEXICO" WAS ACCORDINGLY ISSUED TO SEATRAIN.  BY ITS TERMS
IT BECAME EFFECTIVE AUGUST 10, 1942, SUBJECT "TO SUCH TERMS,
CONDITIONS, AND LIMITATIONS AS ARE NOW, OR MAY HEREAFTER BE, ATTACHED
TO THE EXERCISE OF SUCH AUTHORITY BY THIS COMMISSION." 

A YEAR AND A HALF LATER, JANUARY 27, 1944, THE COMMISSION, ON ITS OWN
MOTION, ORDERED THAT THE PROCEEDINGS BE REOPENED FOR THE PURPOSE OF
DETERMINING WHETHER THE 1942 CERTIFICATE SHOULD NOT BE MODIFIED SO AS
TO DEPRIVE SEATRAIN OF THE RIGHT TO CARRY COMMODITIES GENERALLY. 
SEATRAIN APPEARED AND MOVED TO VACATE AND RESCIND THE COMMISSION'S
ORDER TO REOPEN THE PROCEEDINGS ON THE GROUND THAT THE COMMISSION WAS
WITHOUT STATUTORY AUTHORITY TO MAKE THE ALTERATION PROPOSED. 
SEATRAIN'S MOTION WAS REJECTED.  AT THE SUBSEQUENT HEARING ON THE
PROPOSED MODIFICATION, SEATRAIN DECLINED TO OFFER EVIDENCE, RESTING ITS
CASE ENTIRELY ON THE COMMISSION'S LACK OF AUTHORITY TO RECONSIDER AND
ALTER THE ORIGINAL CERTIFICATE.  AFTER ARGUMENT, THE COMMISSION ENTERED
AN ORDER CANCELING THE FORMER CERTIFICATE AND DIRECTING THAT A
DIFFERENT ONE BE ISSUED.  260 I.C.C. 430.  THE PROPOSED NEW CERTIFICATE
IN EFFECT DEPRIVED SEATRAIN OF THE RIGHT TO CARRY GOODS GENERALLY
BETWEEN THE PORTS IT SERVED, AND LIMITED IT TO OPERATIONS ONLY "AS A
COMMON CARRIER BY THE 'SEATRAIN' TYPE OF VESSELS, IN INTERSTATE OR
FOREIGN COMMERCE, IN THE TRANSPORTATION OF LIQUID CARGOES IN BULK; OF
EMPTY RAILROAD CARS; AND OF PROPERTY LOADED IN FREIGHT CARS RECEIVED
FROM AND DELIVERED TO RAIL CARRIERS AND TRANSPORTED WITHOUT TRANSFER
FROM THE FREIGHT CARS BETWEEN THE PORTS OF NEW YORK, N.Y., NEW ORLEANS,
LA., AND TEXAS CITY, TEX." 

SEATRAIN THEN BROUGHT THIS ACTION BEFORE A THREE-JUDGE DISTRICT COURT
UNDER 28 U.S.C. SECS. 41(28), 47, TO SET ASIDE THE COMMISSION'S ORDER. 
THE DISTRICT COURT SET ASIDE THE ORDER ON THE GROUND THAT THE
COMMISSION HAD EXCEEDED ITS STATUTORY AUTHORITY IN REOPENING THE
PROCEEDING AND ALTERING THE CERTIFICATE.  THE DISTRICT COURT FURTHER
HELD THAT EVEN IF THE COMMISSION WOULD HAVE HAD POWER UNDER DIFFERENT
CIRCUMSTANCES TO ALTER A CERTIFICATE, IT SHOULD NOT HAVE DONE SO IN
THIS CASE WHERE, AS THE COURT FOUND FROM EVIDENCE BEFORE IT BUT WHICH
HAD NOT BEEN BEFORE THE COMMISSION, SEATRAIN HAD EXPENDED LARGE SUMS OF
MONEY IN RELIANCE UPON THE COMPLETE VALIDITY OF ITS CERTIFICATE.  64
F.SUPP.  156.  WE NEED NOT CONSIDER THE COMMISSION'S OBJECTION TO THE
DISTRICT COURT'S ADMISSION OF EVIDENCE NOT HEARD BY THE COMMISSION
SINCE WE AGREE WITH THE DISTRICT COURT THAT THE COMMISSION WAS WITHOUT
AUTHORITY TO CANCEL THIS CERTIFICATE. 

IN ALTERING SEATRAIN'S CERTIFICATE, THE COMMISSION HELD THAT A
CERTIFICATE AUTHORIZING THE CARRIAGE OF "COMMODITIES GENERALLY" DOES
NOT EMBRACE THE RIGHT TO CARRY LOADED OR UNLOADED RAILROAD CARS; THAT
CONSEQUENTLY THE ORIGINAL CERTIFICATE GRANTED SEATRAIN ACTUALLY
DEPRIVED IT OF ANY FUTURE RIGHT TO CARRY RAILROAD CARS - ITS CHIEF
BUSINESS; THAT ISSUANCE OF THE ORIGINAL CERTIFICATE TO CARRY
COMMODITIES GENERALLY WAS CONSEQUENTLY AN INADVERTENT ERROR, PATENT ON
THE FACE OF THE RECORD, WHICH THE COMMISSION HAS THE RIGHT AND POWER TO
CHANGE AT ANY TIME THE MATTER COMES TO ITS ATTENTION.  BUT SEATRAIN
ARGUES THAT, FAR FROM RESTORING THE RIGHT TO WHICH IT WAS ENTITLED
UNDER THE ORIGINAL PROCEEDINGS, THE NEW ORDER ACTUALLY RESULTS IN A
DRASTIC LIMITATION ON THE NATURE OF THE EQUIPMENT AND SERVICE SEATRAIN
IS PRIVILEGED TO EMPLOY IN LOADING AND CARRYING FREIGHT, AND COULD BAR
DELIVERY OR RECEIPT OF FREIGHT TO OR FROM ANY CONSIGNEES EXCEPT
RAILROADS. 

WE NEED NOT DETERMINE THE COMMISSION'S STATUTORY POWER TO CORRECT
CLERICAL MISTAKES, SINCE WE ARE PERSUADED FROM SEATRAIN'S APPLICATIONS
FOR ITS CERTIFICATES, FROM THE INFORMATION SUPPLIED TO THE COMMISSION
INDICATING THAT SEATRAIN HAD LONG TRANSPORTED GOODS OF ALL KINDS LOADED
IN FREIGHT CARS TO CONSIGNEES OTHER THAN RAILROADS, FROM THE FINDINGS
OF THE COMMISSION, AND FROM THE COURSE OF THE EARLIER DECISIONS OF THE
COMMISSION REGARDING SEATRAIN, THAT THE ISSUANCE OF THE ORIGINAL
CERTIFICATE WAS NOT AN "INADVERTENT" ERROR WHICH THE COMMISSION'S
SUBSEQUENT ACTION WAS INTENDED TO CORRECT.  FOR ALL THESE INDICATE THAT
PRIOR TO AND AT THE TIME OF THE ISSUANCE OF THE SEATRAIN CERTIFICATE IT
WAS THE UNDERSTANDING OF SEATRAIN AND THE COMMISSION THAT ITS
TRANSPORTATION OF "COMMODITIES GENERALLY" INCLUDED CARRIAGE OF FREIGHT
CARS AND THAT CARRIAGE OF FREIGHT CARS WOULD NOT EXCLUDE CARRIAGE OF
COMMODITIES GENERALLY.  MOREOVER, THE SEATRAIN APPLICATION WAS NOT
REOPENED FOR CONSIDERATION BY THE COMMISSION UNTIL ITS DECISION IN FOSS
LAUNCH & TUG CO., 260 I.C.C. 103, DECIDED DECEMBER 18, 1943.  THERE THE
COMMISSION POINTEDLY RULED FOR THE FIRST TIME THAT A CERTIFICATE TO
CARRY "COMMODITIES GENERALLY" DID NOT AUTHORIZE WATER CARRIAGE OF
LOADED OR UNLOADED FREIGHT CARS - SO-CALLED "CAR-FERRY SERVICE."  THUS
IT SEEMS APPARENT THAT THE SEATRAIN PROCEEDINGS WERE REOPENED NOT TO
CORRECT A MERE CLERICAL ERROR, BUT TO EXECUTE THE NEW POLICY ANNOUNCED
IN THE FOSS CASE.  THIS CONCLUSION IS SUPPORTED BY THE FACT THAT IN
PRIOR PROCEEDINGS INVOLVING SEATRAIN, THE COMMISSION HAD REJECTED THE
CONTENTION THAT SEATRAIN'S VESSELS COULD BE CLASSED AS "CAR FERRIES,"
AND HAD CONCLUDED THAT THEY WERE OCEAN-GOING WATER CARRIERS.  FN2 

SINCE THE PROCEEDINGS APPARENTLY WERE NOT REOPENED TO CORRECT A MERE
CLERICAL ERROR BUT WERE MORE LIKELY AN EFFORT TO REVOKE OR MODIFY
SUBSTANTIALLY SEATRAIN'S ORIGINAL CERTIFICATE UNDER THE NEW POLICY
ANNOUNCED IN THE FOSS CASE, THE QUESTION REMAINS WHETHER THE ACT
AUTHORIZES SUCH ALTERATIONS.  THE WATER CARRIER PROVISIONS ARE PART OF
THE GENERAL PATTERN OF THE INTERSTATE COMMERCE ACT WHICH GRANTS THE
COMMISSION POWER TO REGULATE RAILROADS AND MOTOR CARRIERS AS WELL AS
WATER CARRIERS.  FN3  THE COMMISSION IS AUTHORIZED TO ISSUE
CERTIFICATES TO ALL THREE TYPES OF CARRIERS.  BUT IT IS SPECIFICALLY
EMPOWERED TO REVOKE ONLY THE CERTIFICATES OF MOTOR CARRIERS.  SECTION
212(A), PART II, INTERSTATE COMMERCE ACT, 49 STAT. 555, 49 U.S.C. SEC.
312(A).  IN FACT, WHEN THE WATER CARRIER PROVISIONS WERE PENDING IN
CONGRESS, THE COMMISSION'S SPOKESMAN, COMMISSIONER EASTMAN, SEEMS
SPECIFICALLY TO HAVE REQUESTED THE CONGRESS TO INCLUDE NO POWER TO
REVOKE A CERTIFICATE.  THE COMMISSIONER EXPLAINED THAT WHILE THE POWER
TO REVOKE MOTOR CARRIERS' CERTIFICATES WAS ESSENTIAL AS AN EFFECTIVE
MEANS OF ENFORCEMENT OF THE MOTOR CARRIER SECTION, IT WAS NOT NECESSARY
TO USE SUCH SANCTIONS IN THE REGULATION OF WATER CARRIERS.  FN4  IT IS
CONTENDED NONETHELESS THAT THE COMMISSION HAS GREATER POWER TO REVOKE
WATER CARRIER CERTIFICATES, WHERE CONGRESS GRANTED NO SPECIFIC
AUTHORITY AT ALL, THAN TO CANCEL AND REVOKE MOTOR CARRIER CERTIFICATES,
WHERE SPECIFIC BUT LIMITED AUTHORITY WAS GRANTED.  BUT IN RULING UPON
ITS POWER TO REVOKE MOTOR CARRIER CERTIFICATES, THE COMMISSION ITSELF
HAS HELD THAT UNLESS IT CAN FIND A REASON TO REVOKE A MOTOR CARRIER'S
CERTIFICATE, WHICH REASON IS SPECIFICALLY SET OUT IN SEC. 212(A), IT
CANNOT REVOKE SUCH A CERTIFICATE UNDER ITS GENERAL STATUTORY POWER TO
ALTER ORDERS PREVIOUSLY MADE.  SMITH BROS. REVOCATION OF CERTIFICATE,
33 M.C.C. 465. 

IT IS ARGUED, HOWEVER, THAT THIS PROCEEDING DOES NOT EFFECT A PARTIAL
REVOCATION OF SEATRAIN'S CERTIFICATE, BUT IS MERELY AN EXERCISE OF THE
COMMISSION'S STATUTORY POWER UNDER SEC. 309(D) TO FIX "TERMS,
CONDITIONS, AND LIMITATIONS" FOR WATER CARRIER CERTIFICATE HOLDERS. 
WHETHER THE COMMISSION COULD, UNDER THIS AUTHORITY, HAVE IMPOSED A
RESTRICTION IN AN ORIGINAL CERTIFICATE AS TO THE TYPE OF SERVICE A
WATER CARRIER COULD UTILIZE TO SERVE ITS SHIPPERS BEST IS BY NO MEANS
FREE FROM DOUBT.  YET THE ALLEGED AUTHORITY TO ALTER A CERTIFICATE
AFTER IT HAS BEEN FINALLY GRANTED SO AS TO LIMIT THE TYPE OF SERVICE IS
CERTAINLY NO GREATER THAN THE COMMISSION'S AUTHORITY TO LIMIT THE TYPE
OF SERVICE WHEN ISSUING THE ORIGINAL CERTIFICATE.  IT IS OF SOME
SIGNIFICANCE THAT SEC. 208, WHICH PRESCRIBES THE AUTHORITY OF THE
COMMISSION IN GRANTING CERTIFICATES TO MOTOR CARRIERS, AUTHORIZES THE
COMMISSION TO "SPECIFY THE SERVICE TO BE RENDERED" BY THOSE CARRIERS. 
BUT SEC. 309, WHICH EMPOWERS THE COMMISSION TO GRANT CERTIFICATES TO
WATER CARRIERS, DOES NOT AUTHORIZE THE COMMISSION TO SPECIFY "THE
SERVICE TO BE RENDERED."  FURTHERMORE, SEC. 309(D), RELATING TO WATER
CARRIER CERTIFICATES, SPECIFICALLY PROVIDES "THAT NO TERMS, CONDITIONS,
OR LIMITATIONS SHALL RESTRICT THE RIGHT OF THE CARRIER TO ADD TO ITS
EQUIPMENT, FACILITIES, OR SERVICE WITHIN THE SCOPE OF SUCH CERTIFICATE,
AS THE DEVELOPMENT OF THE BUSINESS AND THE DEMANDS OF THE PUBLIC SHALL
REQUIRE  ..."  THE LANGUAGE OF THIS SECTION WOULD SEEM TO PRECLUDE THE
COMMISSION FROM ATTACHING TERMS AND CONDITIONS TO A CERTIFICATE WHICH
WOULD DEPRIVE THE PUBLIC OF THE BEST TYPE OF SERVICE WHICH COULD BE
RENDERED BETWEEN PORTS BY A WATER CARRIER.  IN VIEW OF THIS DIFFERENCE
BETWEEN THE STATUTORY AUTHORITY OF THE COMMISSION TO PRESCRIBE THE
SERVICE OF WATER CARRIERS AND OF MOTOR CARRIERS, OUR DECISIONS RELATING
TO THE COMMISSION'S POWER AS TO MOTOR CARRIERS IN THIS RESPECT  FN5
ARE NOT CONTROLLING AS TO THE COMMISSION'S POWER TO REGULATE THE
DETAILS OF THE SERVICE OF WATER CARRIERS.  WE CAN FIND NO AUTHORITY FOR
ALTERATION OF SEATRAIN'S CERTIFICATE FROM THE COMMISSION'S POWER TO FIX
"TERMS AND CONDITIONS." 

NOR DO WE THINK THAT THE COMMISSION'S RULING WAS JUSTIFIED BY THE
LANGUAGE OF SEC. 315(C) WHICH AUTHORIZES IT TO "SUSPEND, MODIFY, OR SET
ASIDE ITS ORDERS UNDER THIS PART UPON SUCH NOTICE AND IN SUCH MANNER AS
IT SHALL DEEM PROPER."  THAT THE WORD "ORDER," AS HERE USED, WAS
INTENDED TO DESCRIBE SOMETHING DIFFERENT FROM THE WORD "CERTIFICATE"
USED IN OTHER PLACES, IS CLEARLY SHOWN BY THE WAY BOTH THESE WORDS ARE
USED IN THE ACT.  SECTION 309 DESCRIBES THE CERTIFICATE, THE METHOD OF
OBTAINING IT, AND ITS SCOPE AND EFFECT, BUT IT NOWHERE REFERS TO THE
WORD "ORDER."  SECTION 315 OF THE ACT, HAVING SPECIFIC REFERENCE TO
ORDERS, AND WHICH IN SUBSECTION (C), HERE RELIED ON, AUTHORIZES
SUSPENSION, ALTERATION, OR MODIFICATION OF ORDERS, NOWHERE MENTIONS THE
WORD "CERTIFICATE."  FN6  IT IS CLEAR THAT THE "ORDERS" REFERRED TO IN
SEC. 315(C) ARE FORMAL COMMANDS OF THE COMMISSION RELATING TO ITS
PROCEDURE AND THE RATES, FARES, PRACTICES, AND LIKE THINGS COMING
WITHIN ITS AUTHORITY.  BUT, AS THE COMMISSION HAS SAID AS TO MOTOR
CARRIER CERTIFICATES, WHILE THE PROCEDURAL "ORDERS" ANTECEDENT TO A
WATER CARRIER CERTIFICATE CAN BE MODIFIED FROM TIME TO TIME, THE
CERTIFICATE MARKS THE END OF THAT PROCEEDING.  FN7  THE CERTIFICATE,
WHEN FINALLY GRANTED AND THE TIME FIXED FOR REHEARING IT HAS PASSED, IS
NOT SUBJECT TO REVOCATION IN WHOLE OR IN PART EXCEPT AS SPECIFICALLY
AUTHORIZED BY CONGRESS.  CONSEQUENTLY, THE COMMISSION WAS WITHOUT
AUTHORITY TO REVOKE SEATRAIN'S CERTIFICATE.  THAT CERTIFICATE, PROPERLY
INTERPRETED, AUTHORIZED IT TO CARRY COMMODITIES GENERALLY, INCLUDING
FREIGHT CARS, ON THE ROUTES FOR WHICH THE CERTIFICATE ORIGINALLY
ISSUED.  THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED.    FN1  FOR A
DESCRIPTION OF SEATRAIN EQUIPMENT, SEE INVESTIGATION OF SEATRAIN LINES,
INC., 195 I.C.C. 215, 218-222. 

FN2  SEE INVESTIGATION OF SEATRAIN LINES, INC., SUPRA; SEATRAIN
LINES, INC. V. AKRON, C. & Y.R. CO., 226 I.C.C. 7; HOBOKEN
MANUFACTURERS' R. CO. V. ABILENE & SOUTHERN R. CO., 248 I.C.C. 109, BUT
SEE COMMISSIONER PATTERSON DISSENTING, ID. AT 120. 

FN3  24 STAT. 379(AS AMENDED), 49 U.S.C. SEC. 1 ET SEQ. (RAILROADS);
49 STAT. 543, 54 STAT. 919, 49 U.S.C. SEC. 301 ET SEQ. (MOTOR
CARRIERS); 54 STAT. 929, 49 U.S.C. SEC. 901 ET SEQ. (WATER CARRIERS). 

FN4  COMMISSIONER EASTMAN, CHAIRMAN OF THE COMMISSION'S LEGISLATIVE
COMMITTEE, REPORTING TO THE SENATE COMMITTEE ON INTERSTATE COMMERCE ON
S. 2009 ON JANUARY 29, 1940, STATED, "THIS BILL LEAVES SECTION 212(A)
UNCHANGED, AND HAS NO CORRESPONDING PROVISION IN THE NEW PART III. 
WHILE THERE IS ROOM FOR ARGUMENT, WE ARE INCLINED TO BELIEVE THAT
PROVISION FOR THE REVOCATION OR SUSPENSION OF WATER CARRIER
CERTIFICATES OR PERMITS IS NOT ESSENTIAL, IF ADEQUATE PENALTY
PROVISIONS ARE PROVIDED FOR VIOLATIONS OF PART III.  REVOCATION OR
SUSPENSION, IN THE CASE OF MOTOR CARRIERS, IS BELIEVED TO BE THE MOST
EFFECTIVE MEANS OF ENFORCEMENT, SINCE THERE ARE SO MANY SUCH CARRIERS,
AND THE OPERATIONS OF THE GREAT MAJORITY ARE SO SMALL, THAT ENFORCEMENT
THROUGH PENAL ACTIONS IN COURTS PRESENTS MANY PRACTICAL DIFFICULTIES;
BUT THIS SHOULD NOT BE TRUE OF WATER CARRIERS." 

FN5  CHICAGO, ST. P., M. & O.R. CO. V. UNITED STATES, 322 U.S. 1;
CRESCENT EXPRESS LINES V. UNITED STATES, 320 U.S. 401; NOBLE V. UNITED
STATES, 319 U.S. 88.  SEE ALSO SMITH BROS. REVOCATION OF CERTIFICATE,
33 M.C.C. 465; QUAKER CITY BUS CO., 38 M.C.C. 603. 

FN6  AND SECS. 316 AND 317 OF THE ACT POINTEDLY TREAT AN ORDER AS ONE
THING AND A CERTIFICATE AS ANOTHER. 

FN7  SEE SMITH BROS. REVOCATION OF CERTIFICATE, SUPRA, QUAKER CITY
BUS CO., SUPRA. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 
..END :










STEELE V. GENERAL MILLS, 329 U.S. 433 


NO. 79.  ARGUED DECEMBER 18, 1946.  - DECIDED JANUARY 6, 1947.  - 154
F.2D 367, REVERSED. 


A MOTOR CARRIER AND A SHIPPER ENTERED INTO A WRITTEN CONTRACT UNDER
WHICH THE CARRIER WAS TO TRANSPORT GOODS FOR THE SHIPPER BY TRUCK
ENTIRELY WITHIN THE STATE OF TEXAS.  ON THE BASIS OF THAT CONTRACT, THE
CARRIER OBTAINED FROM THE TEXAS RAILROAD COMMISSION A PERMIT TO OPERATE
AS A CONTRACT CARRIER PURSUANT TO RULES PROMULGATED BY THE COMMISSION
UNDER TEXAS R.S., ART. 911(B), SECS. 1-22(B) GRANTING REGULATORY POWER
OVER TRANSPORTATION.  THE RULES REQUIRED CONTRACT CARRIERS TO CHARGE
NOT LESS THAN THE RATE PRESCRIBED FOR COMMON MOTOR CARRIERS.  LATER,
PURSUANT TO A PREARRANGEMENT AND WITHOUT NOTICE TO THE COMMISSION, THE
PARTIES ENTERED INTO A SUPPLEMENTAL AGREEMENT UNDER WHICH THE SHIPPER
ACTUALLY PAID THE CARRIER LOWER RATES.  ABOUT 3 1/2 YEARS LATER, THE
CARRIER SUED THE SHIPPER IN A FEDERAL DISTRICT COURT TO RECOVER THE
DIFFERENCE BETWEEN THE RATE PAID AND THE FULL RATE FIXED BY THE
COMMISSION.  HELD: 

1.  THIS COURT CANNOT SAY THAT THE DISTRICT COURT SITTING IN TEXAS
ERRED IN HOLDING THAT THE CAUSE OF ACTION WAS NOT BARRED BY ART. 5526,
TEX. R.S., WHICH APPLIES ONLY TO ACTIONS FOR DEBTS NOT "EVIDENCED BY A
CONTRACT IN WRITING."  P. 438. 

2.  NOR CAN THIS COURT SAY THAT THE DISTRICT COURT AND THE CIRCUIT
COURT OF APPEALS ERRED IN INTERPRETING THE TEXAS LAW TO RENDER VOID AND
UNENFORCEABLE THE SUPPLEMENTAL AGREEMENT DESIGNED TO CIRCUMVENT PAYMENT
OF THE RATES FIXED BY THE COMMISSION.  P. 438. 

3.  NOR WILL THIS COURT DISTURB THE INTERPRETATION PLACED UPON PURELY
LOCAL LAW BY A DISTRICT COURT SITTING IN TEXAS IN HOLDING THAT THE
COMMISSION'S RATE-FIXING ORDERS APPLIED TO THE CARRIER'S BUSINESS, THAT
THEY WERE NOT SUBJECT TO COLLATERAL ATTACK IN SUCH A SUIT, AND THAT THE
CARRIER COULD NOT LAWFULLY CARRY THE SHIPPER'S GOODS AT LOWER RATES -
ESPECIALLY WHERE THESE INTERPRETATIONS WERE WELL BUTTRESSED BY STATE
STATUTES AND COURT DECISIONS AND THE CIRCUIT COURT OF APPEALS DID NOT
DISAGREE WITH THEM.  P. 439. 

4.  UNDER TEXAS LAW, NO DOCTRINE OF ESTOPPEL OR PARI DELICTO CAN BE
INVOKED TO DEFEAT PAYMENT OF THE FULL RATE FIXED BY THE COMMISSION; AND
A DIFFERENT RULE CANNOT BE APPLIED IN THE FEDERAL COURTS.  PP. 439
441. 

STEELE V. GENERAL MILLS, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

A CARRIER SUED A SHIPPER IN A FEDERAL DISTRICT COURT TO RECOVER THE
DIFFERENCE BETWEEN THE RATE ACTUALLY PAID FOR THE TRANSPORTATION OF
GOODS AND A HIGHER RATE FIXED BY THE RAILROAD COMMISSION OF TEXAS
PURSUANT TO TEX. R.S., ART. 911(B), SECS. 1-22(B).  THE DISTRICT COURT
GAVE JUDGMENT FOR THE CARRIER.  THE CIRCUIT COURT OF APPEALS REVERSED. 
154 F.2D 367.  THIS COURT GRANTED CERTIORARI.  328 U.S. 830.  THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF THE
DISTRICT COURT IS AFFIRMED.  P. 441. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER AND RESPONDENT ENTERED INTO A WRITTEN CONTRACT UNDER WHICH
THE PETITIONER WAS TO TRANSPORT GOODS FOR RESPONDENT BY TRUCK ENTIRELY
WITHIN THE STATE OF TEXAS AT "SUCH RATES, CHARGES OR TARIFFS AS MAY BE
FIXED BY THE RAILROAD COMMISSION OF THE STATE OF TEXAS."  BASED ON THAT
CONTRACT PETITIONER APPLIED TO THE COMMISSION FOR A PERMIT TO OPERATE
AS A CONTRACT CARRIER PURSUANT TO RULES OF THE RAILROAD COMMISSION
PROMULGATED UNDER TEXAS LAW WHICH GRANTS REGULATORY POWER OVER
TRANSPORTATION TO THAT COMMISSION.  ARTICLE 911B, SECS. 1 TO 22(B),
REV. STAT. OF TEX. PETITIONER'S APPLICATION STATED THAT "THE TARIFF TO
BE CHARGED FOR THE SERVICE PROPOSED TO BE RENDERED WILL BE THAT AS
PROMULGATED BY THE RAILROAD COMMISSION OF TEXAS."  AFTER NOTICE AND
HEARING, AT WHICH PETITIONER AND A REPRESENTATIVE OF RESPONDENT
TESTIFIED, THE COMMISSION MADE AN ORDER WHICH STATED THAT "AFTER
CAREFULLY CONSIDERING THE EVIDENCE, THE LAWS AND ITS OWN RULES AND
REGULATIONS," THE COMMISSION WAS OF THE OPINION THAT "THE CHARACTER OF
BUSINESS PROPOSED TO BE DONE BY THE APPLICANT STRICTLY CONFORMS WITH
THE DEFINITION OF A CONTRACT CARRIER."  THE ORDER DIRECTED THAT
PETITIONER BE GRANTED A PERMIT, WHICH WAS LATER ISSUED, TO TRANSPORT
GOODS FOR RESPONDENT IN TEXAS, BUT DIRECTED ATTENTION TO THE FACT THAT
THE COMMISSION'S "TARIFFS AND ORDERS PRESCRIBED AS A MINIMUM RATE TO BE
CHARGED BY CONTRACT CARRIERS THE RATES PRESCRIBED FOR COMMON CARRIER
MOTOR CARRIERS."  LATER, PURSUANT TO A PREARRANGEMENT, THE PARTIES
ENTERED INTO A SUPPLEMENTAL AGREEMENT CONCERNING WHICH THE RAILROAD
COMMISSION WAS KEPT UNINFORMED, IN ACCORDANCE WITH WHICH RESPONDENT
ACTUALLY PAID PETITIONER FOR CARRIAGE OF ITS GOODS LESS THAN THE RATES
PRESCRIBED FOR COMMON MOTOR CARRIERS.  ABOUT THREE AND A HALF YEARS
LATER THE PETITIONER FILED THIS SUIT, OF WHICH THE DISTRICT COURT HAD
JURISDICTION BY REASON OF DIVERSITY OF CITIZENSHIP, TO RECOVER THE
DIFFERENCE BETWEEN THE RATE PAID AND THE FULL RATE FIXED BY PRIOR
GENERAL ORDERS OF THE COMMISSION PRESCRIBING COMMON CARRIER RATES AS
PROVIDED IN THE CONTRACT. 

THE RESPONDENT'S ANSWER ADMITTED THAT IT HAD PAID LESS THAN THE
TARIFF RATE FIXED IN PRIOR GENERAL ORDERS, BUT DENIED LEGAL LIABILITY
TO PAY THAT RATE ON SEVERAL GROUNDS.  IT DENIED THAT RESPONDENT'S RATES
WERE GOVERNED BY THE COMMISSION'S PRIOR GENERAL RATE ORDERS OR BY THE
SPECIAL ORDER GRANTING PETITIONER A PERMIT AS A CONTRACT CARRIER.  IT
ALSO CLAIMED THAT A STATE TWO-YEAR STATUTE OF LIMITATIONS BARRED
RECOVERY FOR PART OF THE AMOUNT CLAIMED.  IT FURTHER ALLEGED THAT
PETITIONER HAD LED RESPONDENT TO BELIEVE THAT HIS TYPE OF
TRANSPORTATION WAS NOT SUBJECT TO REGULATION BY THE RAILROAD
COMMISSION, AND THAT NO PRIOR GENERAL OR SPECIAL ORDERS HAD FIXED
PETITIONER'S TRANSPORTATION RATES.  IN RELIANCE UPON THE PETITIONER'S
REPRESENTATIONS, RESPONDENT ALLEGED, IT HAD ENTERED INTO THE
SUPPLEMENTAL AGREEMENT TO PAY LESS THAN THE TARIFF RATE HERE CLAIMED. 
RESPONDENT PLEADED THAT BY THIS CONDUCT PETITIONER WAS ESTOPPED FROM
CLAIMING THAT THE COMMISSION HAD POWER TO OR HAD FIXED A RATE FOR
PETITIONER'S TRANSPORTATION, OR FROM PREDICATING HIS CAUSE OF ACTION
UPON THE COMMISSION'S TARIFFS. 

THE DISTRICT COURT REJECTED ALL OF RESPONDENT'S CONTENTIONS.  CITING
TEXAS STATUTES, COURT DECISIONS, AND THE COMMISSION'S PRACTICES, THE
DISTRICT COURT HELD THAT THE CAUSE OF ACTION WAS NOT BARRED BY THE
STATUTE OF LIMITATIONS; THAT THE COMMISSION'S PRIOR GENERAL RATE ORDERS
GOVERNED THE CHARGES TO BE FIXED BY CONTRACT CARRIERS SUCH AS
PETITIONER; THAT TEXAS LAW BARRED RESPONDENT FROM ANY COLLATERAL ATTACK
ON THE VALIDITY OF THE ORDERS; THAT HAD THE RATE-FIXING ORDERS BEEN
DIRECTLY ATTACKED, AS AUTHORIZED BY LAW, THEY WOULD HAVE BEEN HELD
VALID; THAT SHIPPERS AND CARRIERS COULD NOT BY PRIVATE AGREEMENTS
DEFEAT THE STATE'S STATUTORY PURPOSE TO REQUIRE PAYMENTS OF UNIFORM
TRANSPORTATION RATES; THAT THE ORIGINAL AGREEMENT TO PAY THE COMMISSION
FIXED RATE WAS VALID, AND THE SUPPLEMENTAL AGREEMENT TO PAY LESS THAN
THAT RATE WAS VOID; AND THAT, UNDER TEXAS LAW, PETITIONER WAS NOT
ESTOPPED TO RELY ON THE COMMISSION'S TARIFF IN ORDER TO RECOVER THE
FULL TARIFF RATE.  ACCORDINGLY, THE DISTRICT COURT DIRECTED THE JURY TO
RETURN A VERDICT FOR PETITIONER FOR THE BALANCE DUE IT UNDER THE
COMMISSION RATE, AND A JUDGMENT FOR THE PETITIONER WAS ENTERED ON THAT
VERDICT.  FN1 

THE CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING, REVERSED.  154
F.2D 367.  THE MAJORITY CONCLUDED THAT PETITIONER SHOULD NOT RECOVER
BECAUSE THE AGREEMENT TO PAY LESS THAN THE FULL RATES WAS A SUBTERFUGE,
THAT NEITHER PARTY HAD ANY INTENTION OF LIVING UP TO THE AGREEMENT, AND
THAT THEIR CONDUCT AMOUNTED TO A FRAUD UPON THE RAILROAD COMMISSION,
"CONTRARY TO GOOD MORALS AND THAT (IT) TENDED  ...  TO INTERFERE WITH
THE PURITY OF THE ADMINISTRATION OF THE LAW SUCH AS PUTS BOTH PARTIES
IN PARI DELICTO WITH NO RIGHT TO SEEK ADVANTAGE OR RECOVERY  ..."  ON
THE "SPURIOUS" CONTRACT.  THE DISSENTING JUDGE DID NOT AGREE THAT THE
RECORDS SHOWED A DELIBERATE PURPOSE TO EVADE THE STATUTES.  HE FURTHER
THOUGHT THAT UNDER CONTROLLING TEXAS LAW AND POLICY THE DOCTRINE OF
PARI DELICTO COULD NOT BE APPLIED SO AS TO HAVE THE GOODS OF A TEXAS
SHIPPER HAULED IN TEXAS AT A LESS RATE THAN THE OTHERS WERE COMPELLED
TO PAY BY LAW.  ALL THE JUDGES AGREED, HOWEVER, THAT THE AGREEMENT TO
PAY LESS THAN THE COMMISSION-FIXED RATES WAS VOID. 

ON PETITIONER'S MOTION FOR REHEARING, THE STATE ATTORNEY GENERAL
INTERVENED.  HE CONTENDED THAT THE COURT'S DECISION RAN COUNTER TO THE
STATE'S LONG-ESTABLISHED POLICY AGAINST DISCRIMINATORY TRANSPORTATION
RATE-CUTTING, AND THAT IF THE JUDGMENT STOOD, IT WOULD IMPAIR THE
INTEGRITY OF THE STATE'S REGULATORY SYSTEM, A PRIMARY PURPOSE OF WHICH
WAS, HE ARGUED, TO ASSURE UNIFORM RATES TO ALL SHIPPERS FOR
SUBSTANTIALLY THE SAME TRANSPORTATION SERVICE.  IN ITS OPINION DENYING
REHEARING, THE COURT REAFFIRMED ITS FORMER HOLDING AND STATED THAT THIS
WAS "A SUIT BY ONE PARTY, IN PARTICEPS CRIMINIS, AGAINST ANOTHER IN
LIKE SITUATION, UNDER A FULLY COMPLETED CONTRACT, WHEREIN IT WAS SOUGHT
TO PENALIZE ONE PARTY TO THE EXTENT OF $37,000.00 AND TO REWARD THE
PRIME OFFENDER IN LIKE AMOUNT."  WHETHER THE CIRCUIT COURT OF APPEALS'
JUDGMENT DOES UNDERMINE THE TRANSPORTATION POLICY OF TEXAS IS A
QUESTION OF SUCH IMPORTANCE THAT WE GRANTED CERTIORARI TO REVIEW THE
CASE.  328 U.S. 830. 

THE DISTRICT COURT SPECIFICALLY HELD THAT NO PART OF THE CLAIM SUED
ON WAS BARRED BY THE TEXAS STATUTE OF LIMITATIONS AND THE CIRCUIT COURT
OF APPEALS DID NOT DISCUSS THE QUESTION.  ARTICLE 5526 OF THE REVISED
STATUTES OF TEXAS, ON WHICH RESPONDENT RELIES, BY ITS LANGUAGE APPLIES
ONLY TO ACTIONS FOR DEBTS NOT "EVIDENCED BY A CONTRACT IN WRITING." 
THE CONTRACT HERE SUED ON WAS "IN WRITING."  RESPONDENT HAS CITED NO
TEXAS DECISIONS WHICH HAVE CONSIDERED THIS STATUTE TO BE A BAR TO SUITS
ON CONTRACTS SUCH AS THE ONE HERE INVOLVED.  WE CANNOT SAY THAT THE
DISTRICT COURT SITTING IN TEXAS ERRED IN HOLDING THAT NO PART OF THE
CLAIM WAS BARRED BY ARTICLE 5526.  SEE TEXARKANA & FT. S.R. CO. V.
HOUSTON GAS & FUEL CO., 121 TEX. 594, 51 S.W.2D 284. 

NOR CAN WE SAY THAT THE DISTRICT COURT AND THE CIRCUIT COURT OF
APPEALS ERRED IN INTERPRETING TEXAS LAW TO RENDER THE SUPPLEMENTAL
AGREEMENT BETWEEN PETITIONER AND RESPONDENT, DESIGNED TO CIRCUMVENT
PAYMENT OF COMMISSION-FIXED RATES, VOID AND UNENFORCEABLE.  THE
DISTRICT COURT'S HOLDINGS THAT THE COMMISSION'S RATE-FIXING ORDERS
APPLIED TO PETITIONER'S BUSINESS, THAT THEY WERE NOT SUBJECT UNDER
TEXAS LAW TO THE COLLATERAL ATTACK HERE MADE, AND THAT PETITIONER COULD
NOT CARRY RESPONDENT'S GOODS AT LESS THAN THE RATES FIXED WERE WELL
BUTTRESSED BY STATE STATUTES AND COURT DECISIONS.  FN2  NO ARGUMENTS
HERE MADE BY RESPONDENT, OR STATE DECISIONS ON WHICH IT RELIES, REFUTE
THE DISTRICT COURT'S REASONING OR CONCLUSION.  THE CIRCUIT COURT OF
APPEALS HAS NOT DISAGREED WITH THIS HOLDING OF THE DISTRICT COURT
SITTING IN TEXAS.  UNDER THESE CIRCUMSTANCES WE SHALL LEAVE UNDISTURBED
THE INTERPRETATION PLACED UPON PURELY LOCAL LAW BY A TEXAS FEDERAL
JUDGE.  MACGREGOR V. STATE MUTUAL LIFE ASSURANCE CO., 315 U.S. 280;
HENDERSON CO. V. THOMPSON, 300 U.S. 258, 266; THOMPSON V. CONSOLIDATED
GAS CO., 300 U.S. 55, 74-75.  THEREFORE WE CAN PROCEED TO CONSIDER
WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT RESPONDENT COULD ESCAPE
PAYMENT OF THE COMMISSION-FIXED RATES BY APPLICATION OF THE DOCTRINE OF
PARI DELICTO. 

RESPONDENT DOES NOT REFUTE WHAT THE TEXAS COURTS HAVE FREQUENTLY
DECIDED, THAT AGREEMENTS BY RAILROADS TO CUT CHARGES TO BELOW TARIFF
RATES ARE UNLAWFUL AND THAT NO DOCTRINE OF ESTOPPEL OR PARI DELICTO CAN
BE INVOKED TO DEFEAT PAYMENT OF THE FULL TARIFF RATE.  IN TEXAS &
N.O.R. CO. V. YATES, 139 TEX. 89, 93, 161 S.W.2D 1050, 1052, THE TEXAS
COURT SAID, "IN A WORD THE PURPOSE OF OUR STATUTES, AS THEY RELATE TO
INTRASTATE FREIGHT RATES, IS IN EVERY ESSENTIAL RESPECT THE SAME AS
THAT OF THE FEDERAL STATUTES WHICH WE HAD UNDER CONSIDERATION IN
HOUSTON & T.C.R. CO. V. JOHNSON, TEX. COM. APP., 41 S.W.2D 14, 83
A.L.R. 241."  JUST AS 49 U.S.C. SEC. 41(3) PROHIBITS REBATE AND SIMILAR
DEVICES WHICH MIGHT UNDERMINE INTERSTATE TRANSPORTATION RATE SYSTEMS,
SO ART. 1690(B), SEC. (I) OF THE PENAL CODE OF TEXAS MAKES IT UNLAWFUL
FOR MOTOR CARRIERS TO CHARGE LESS THAN COMMISSION-FIXED RATES, AND ART.
1687 MAKES IT UNLAWFUL FOR RAILROADS TO ENGAGE IN THE SAME PRACTICE. 
NO TEXAS DECISIONS REFERRED TO BY THE CIRCUIT COURT OF APPEALS OR BY
THE RESPONDENT HERE INDICATE THAT THE STATE'S PUBLIC POLICY IS ANY
DIFFERENT OR LESS EFFECTIVE IN PROTECTING THE INTEGRITY OF MOTOR
CARRIER RATES THAN RAILROAD RATES.  THE TEXAS MOTOR CARRIER LEGISLATION
WAS DESIGNED TO BE A PART OF A STATE TRANSPORTATION REGULATORY SYSTEM
APPLICABLE ALIKE TO ALL LINES OF TRANSPORTATION WHICH REPRESENTS A
"STUDIED EFFORT  ...  TO PREVENT, THROUGH REGULATION, UNFAIR,
DISCRIMINATORY, OR DESTRUCTIVE COMPETITION BETWEEN SUCH AUTHORIZED
CARRIERS AS WOULD ULTIMATELY IMPAIR THEIR USEFULNESS."  TEXAS & PACIFIC
R. CO. V. RAILROAD COMM'N (TEX. CIV. APP.) 138 S.W.2D 927, 931,
REVERSED ON OTHER GROUNDS, 138 TEX. 148, 157 S.W.2D 622.  CF.
STEPHENSON V. BINFORD, 287 U.S. 251, 272-273. 

UNDER TEXAS LAW THE PAYMENT OF COMMISSION-FIXED CARRIER RATES IS NOT
MERELY A PRIVATE OBLIGATION BETWEEN SHIPPERS AND CARRIERS.  THE DUTY TO
PAY IS A PUBLIC ONE, HOUSTON & T.C.R. CO. V. JOHNSON (TEX. COM. APP.)
41 S.W.2D 14.  AND, AS SAID IN THE YATES CASE, SUPRA, WITH REFERENCE TO
A RAILROAD, NO CARRIER CAN "BY MEANS OF ESTOPPEL 'OR BY ANY OTHER
DEVICE' ESCAPE THE PERFORMANCE OF THIS PUBLIC DUTY."  WHILE THE
DOCTRINE OF PARI DELICTO MIGHT BE APPLIED IN TEXAS TO SOME TYPES OF
CONTRACTS SO AS TO DEFEAT RECOVERY, SEE WRIGHT V. WIGHT & WIGHT (TEX.
CIV. APP.) 229 S.W. 881, WE ARE SATISFIED THAT THE CIRCUIT COURT OF
APPEALS ERRED IN HOLDING THAT TEXAS COURTS WOULD APPLY IT IN THIS
CASE.  APPLICATION OF THE DOCTRINE OF PARI DELICTO IN THIS PROCEEDING,
THEREFORE, WHERE THE FEDERAL COURT HAS JURISDICTION BY REASON OF
DIVERSITY, WOULD RESULT IN APPLYING A RULE OF LAW IN THE FEDERAL COURTS
DIFFERENT FROM THE RULE WE BELIEVE HAS BEEN APPLICABLE IN THE STATE
COURTS.  SUCH A RESULT CANNOT BE APPROVED.  HOLMBERG V. ARMBRECHT, 327
U.S. 392. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  IT IS SO ORDERED.  REVERSED. 

FN1  THE COURT PERMITTED RESPONDENT TO OFFER EVIDENCE INTENDED TO
SHOW THAT THE PETITIONER'S CONTRACT CARRIAGE WAS NEITHER IN COMPETITION
WITH COMMON CARRIERS NOR SUBSTANTIALLY THE SAME TYPE OF SERVICES AS
COMMON CARRIERS PERFORMED.  THIS EVIDENCE WAS OFFERED TO SUPPORT
RESPONDENT'S CONTENTION THAT THE COMMISSION WAS WITHOUT JURISDICTION TO
FIX PETITIONER'S RATES BECAUSE, AS RESPONDENT URGED, SEC. 6 AA OF THE
STATE MOTOR CARRIER LAW LIMITED ITS POWER TO FIX CONTRACT CARRIER RATES
TO MOTOR CARRIERS THAT DID COMPETE WITH OR PERFORM SUBSTANTIALLY THE
SAME SERVICES AS COMMON CARRIERS.  THESE TWO QUESTIONS WERE SUBMITTED
TO THE JURY, AND THEY MADE SPECIAL FINDINGS ON THE ISSUES IN
RESPONDENT'S FAVOR.  THE DISTRICT COURT LATER DIRECTED THE JURY TO FIND
FOR PETITIONER DESPITE THESE FINDINGS, HOLDING, AS SET OUT IN THE
OPINION, THAT THE COMMISSION'S ORDERS WERE VALID AND BEYOND COLLATERAL
ATTACK IN THIS CASE. 

FN2  THE DISTRICT COURT CITED THE FOLLOWING AUTHORITIES TO SUPPORT
ITS POSITION:  ART. 911B REV. STAT. OF TEX.; GENERAL ORDER NO. 25, R.R.
COMM'N OF TEX., AUG. 22, 1931; TEXAS STEEL CO. V. FT. WORTH & DENVER
C.R. CO., 120 TEX. 597, 40 S.W.2D 78; GREER V. RAILROAD COMM'N (TEX.
CIV. APP.) 117 S.W.2D 142; ST. LOUIS, I.M. & S.R. CO. V. LANDA & STOREY
(TEX. CIV. APP.) 187 S.W. 358; RAILROAD COMM'N V. UVALDE CONSTRUCTION
CO. (TEX. CIV. APP.) 49 S.W.2D 1113; ALPHA PETROLEUM CO. V. TERRELL,
122 TEX. 257, 59 S.W.2D 364; MINGUS V. WADLEY, 115 TEX. 551, 285 S.W.
1084.  IT ALSO CITED THE FOLLOWING FEDERAL CASES:  BURFORD V. SUN OIL
CO., 319 U.S. 315; UNITED FUEL GAS CO. V. RAILROAD COMM'N, 278 U.S.
300. 
..END :





BOARD OF GOVERNORS V. AGNEW, 329 U.S. 441 


NO. 66.  ARGUED DECEMBER 10, 1946.  - DECIDED JANUARY 6, 1947.  - 153
F.2D 785, REVERSED. 


1.  AN ORDER ISSUED UNDER SEC. 30 OF THE BANKING ACT OF 1933 BY THE
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM REMOVING A DIRECTOR OF
A NATIONAL BANK FROM OFFICE FOR CONTINUING VIOLATIONS OF LAW AFTER
HAVING BEEN WARNED TO DESIST IS SUBJECT TO JUDICIAL REVIEW; AND A
DISTRICT COURT IS AUTHORIZED TO ENJOIN THE REMOVAL IF THE BOARD ACTS
BEYOND THE LIMITS OF ITS STATUTORY AUTHORITY.  P. 444. 

2.  SECTION 32 OF THE BANKING ACT OF 1933 PROHIBITS, INTER ALIA, ANY
EMPLOYEE OF ANY PARTNERSHIP "PRIMARILY ENGAGED" IN THE UNDERWRITING OR
DISTRIBUTION OF SECURITIES FROM SERVING AT THE SAME TIME AS DIRECTOR OF
A MEMBER BANK OF THE FEDERAL RESERVE SYSTEM.  RESPONDENTS WERE
DIRECTORS OF A MEMBER BANK AND EMPLOYEES OF A PARTNERSHIP WHICH HELD
ITSELF OUT AS BEING "UNDERWRITERS, DISTRIBUTORS  ...  AND BROKERS" IN
SECURITIES, WAS ACTIVELY GETTING WHAT BUSINESS IT COULD IN THE
UNDERWRITING FIELD, AND ONE YEAR RANKED 9TH AMONG 94 LEADING INVESTMENT
BANKERS WITH RESPECT TO ITS TOTAL PARTICIPATIONS IN UNDERWRITINGS.  ITS
GROSS INCOME FROM THE UNDERWRITING FIELD RANGED FROM 26% TO 39%, AND
ITS GROSS INCOME FROM THE BROKERAGE BUSINESS RANGED FROM 40% TO 47%, OF
ITS GROSS INCOME FROM ALL SOURCES.  ABOUT 15% OF THE TOTAL NUMBER OF
TRANSACTIONS AND OF THE TOTAL MARKET VALUE OF THE SECURITIES BOUGHT AND
SOLD BY IT AS BROKER OR DEALER WERE IN THE UNDERWRITING FIELD.  THE
PARTNERSHIP DID NO BUSINESS WITH THE BANK AND RESPONDENTS DID ONLY A
STRICTLY COMMISSION BUSINESS WITH THE BANK'S CUSTOMERS.  HELD:  THE
PARTNERSHIP WAS "PRIMARILY ENGAGED" IN THE UNDERWRITING AND
DISTRIBUTION OF SECURITIES WITHIN THE MEANING OF SEC. 32 OF THE ACT AND
ITS EMPLOYEES WERE DISQUALIFIED FROM SERVING AS DIRECTORS OF A MEMBER
BANK OF THE FEDERAL RESERVE SYSTEM.  PP. 445-449. 

(A)  IF THE UNDERWRITING BUSINESS OF A FIRM IS SUBSTANTIAL, IT IS
"PRIMARILY ENGAGED" IN THE UNDERWRITING BUSINESS, THOUGH BY ANY
QUANTITATIVE TEST UNDERWRITING MAY NOT BE ITS CHIEF OR PRINCIPAL
ACTIVITY; AND WHETHER ITS UNDERWRITING BUSINESS EXCEEDS 50% OF ITS
TOTAL BUSINESS IS IRRELEVANT.  PP. 446-449. 

(B)  SECTION 32 BEING A PREVENTIVE MEASURE, THE FACT THAT RESPONDENTS
HAVE BEEN SCRUPULOUS IN THEIR RELATIONSHIP TO THE BANK IS IMMATERIAL. 
P. 449. 

3.  SUBSTANTIALITY BEING THE STATUTORY GUIDE, SEC. 32 DOES NOT
CONSTITUTE AN UNCONSTITUTIONAL DELEGATION OF AUTHORITY TO THE BOARD,
SINCE THE LIMITS OF ADMINISTRATIVE ACTION ARE SUFFICIENTLY DEFINITE OR
ASCERTAINABLE.  P. 449. 

BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM ET AL. V. AGNEW ET
AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

IN A SUIT TO REVIEW OR ENJOIN THE ACTION OF THE BOARD OF GOVERNORS OF
THE FEDERAL RESERVE SYSTEM IN REMOVING RESPONDENTS FROM OFFICE AS
DIRECTORS OF A NATIONAL BANK ON THE GROUND THAT THEY WERE EMPLOYEES OF
A FIRM "PRIMARILY ENGAGED" IN UNDERWRITING WITHIN THE MEANING OF SEC.
32 OF THE BANKING ACT OF 1933, THE DISTRICT COURT DISMISSED THE
COMPLAINT.  THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA REVERSED.  153 F.2D 785.  THIS COURT GRANTED CERTIORARI.  328
U.S. 825.  REVERSED, P. 449. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, HERE ON CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT
OF COLUMBIA, PRESENTS IMPORTANT PROBLEMS UNDER SEC. 30 AND SEC. 32 OF
THE BANKING ACT OF 1933, 48 STAT. 162, 193, 194, AS AMENDED, 49 STAT.
684, 709, 12 U.S.C. SECS. 77, 78. 

WHENEVER HE IS OF THE OPINION THAT A DIRECTOR OR OFFICER OF A NATIONAL
BANK HAS VIOLATED ANY LAW RELATING TO THE BANK, SHALL WARN HIM TO
DISCONTINUE THE VIOLATION AND, IF THE VIOLATION CONTINUES, MAY CERTIFY
THE FACTS TO THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM.  THE
BOARD IS GRANTED POWER TO ORDER THAT THE DIRECTOR OR OFFICER BE REMOVED
FROM OFFICE IF IT FINDS AFTER NOTICE AND A REASONABLE OPPORTUNITY TO BE
HEARD THAT HE HAS CONTINUED TO VIOLATE THE LAW.  FN1 

OF ANY PARTNERSHIP "PRIMARILY ENGAGED IN THE ISSUE, FLOTATION,
UNDERWRITING, PUBLIC SALE, OR DISTRIBUTION, AT WHOLESALE OR RETAIL, OR
THROUGH SYNDICATE PARTICIPATION, OF STOCKS, BONDS, OR OTHER SIMILAR
SECURITIES" FROM SERVING AT THE SAME TIME AS AN OFFICER, DIRECTOR, OR
EMPLOYEE OF A MEMBER BANK.  FN2 

PURSUANT TO THE PROCEDURE OUTLINED IN SEC. 30 THE BOARD ORDERED
RESPONDENTS REMOVED FROM OFFICE AS DIRECTORS OF THE PATERSON NATIONAL
BANK ON THE GROUND THAT THEY WERE EMPLOYEES OF A FIRM "PRIMARILY
ENGAGED" IN UNDERWRITING WITHIN THE MEANING OF SEC. 32.  RESPONDENTS
BROUGHT SUIT IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TO
REVIEW THE ACTION OF THE BOARD OR TO ENJOIN ITS ACTION.  THE DISTRICT
COURT DISMISSED THE COMPLAINT.  THE COURT OF APPEALS REVERSED BY A
DIVIDED VOTE, HOLDING THAT THE BOARD EXCEEDED ITS AUTHORITY AND THAT AN
INJUNCTION SHOULD ISSUE.  153 F.2D 785. 

FIRST.  THE BOARD CONTENDS THAT THE REMOVAL ORDERS OF THE BOARD MADE
UNDER SEC. 30 ARE NOT SUBJECT TO JUDICIAL REVIEW IN THE ABSENCE OF A
CHARGE OF FRAUD.  IT RELIES ON THE ABSENCE OF AN EXPRESS RIGHT OF
REVIEW AND ON THE NATURE OF THE FEDERAL BANK SUPERVISORY SCHEME OF
WHICH SEC. 30 IS AN INTEGRAL PART.  CF. ADAMS V. NAGLE, 303 U.S. 532;
SWITCHMEN'S UNION V. MEDIATION BOARD, 320 U.S. 297; ESTEP V. UNITED
STATES, 327 U.S. 114.  A MAJORITY OF THE COURT, HOWEVER, IS OF THE
OPINION THAT THE DETERMINATION OF THE EXTENT OF THE AUTHORITY GRANTED
THE BOARD TO ISSUE REMOVAL ORDERS UNDER SEC. 30 OF THE ACT IS SUBJECT
TO JUDICIAL REVIEW AND THAT THE DISTRICT COURT IS AUTHORIZED TO ENJOIN
THE REMOVAL IF THE BOARD TRANSCENDS ITS BOUNDS AND ACTS BEYOND THE
LIMITS OF ITS STATUTORY GRANT OF AUTHORITY.  SEE AMERICAN SCHOOL OF
MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94; PHILADELPHIA CO. V.
STIMSON, 223 U.S. 605, 620; STARK V. WICKARD, 321 U.S. 288, 309-310. 
THAT BEING DECIDED, IT SEEMS PLAIN THAT THE CLAIM TO THE OFFICE OF
DIRECTOR IS SUCH A PERSONAL ONE AS WARRANTS JUDICIAL CONSIDERATION OF
THE CONTROVERSY.  CF. COLUMBIA BROADCASTING SYSTEM V. UNITED STATES,
316 U.S. 407; STARK V. WICKARD, SUPRA, P. 305. 

SECOND.  WE COME THEN TO THE MERITS.  RESPONDENTS FOR A NUMBER OF
YEARS HAVE BEEN DIRECTORS OF THE PATERSON NATIONAL BANK, A NATIONAL
BANKING ASSOCIATION AND A MEMBER OF THE FEDERAL RESERVE SYSTEM.  SINCE
1941 THEY HAVE BEEN EMPLOYED BY EASTMAN, DILLON & CO., A PARTNERSHIP,
WHICH HOLDS ITSELF OUT AS BEING "UNDERWRITERS, DISTRIBUTORS, DEALERS
AND BROKERS IN INDUSTRIAL, RAILROAD, PUBLIC UTILITY AND MUNICIPAL
SECURITIES."  DURING THE FISCAL YEAR ENDING FEBRUARY 28, 1943, ITS
GROSS INCOME FROM THE UNDERWRITING FIELD  FN3  WAS 26 PER CENT OF ITS
GROSS INCOME FROM ALL SOURCES, WHILE ITS GROSS INCOME FROM THE
BROKERAGE BUSINESS WAS 42 PER CENT OF ITS GROSS INCOME FROM ALL
SOURCES.  THE SAME PERCENTAGES FOR THE FISCAL YEAR ENDING FEBRUARY 29,
1944, WERE 32 PER CENT AND 47 PER CENT RESPECTIVELY; AND FOR THE PERIOD
FROM MARCH 1, 1944, TO JULY 31, 1944, 39 PER CENT AND 40 PER CENT
RESPECTIVELY.  OF THE TOTAL NUMBER OF TRANSACTIONS, AS WELL AS THE
TOTAL MARKET VALUE OF THE SECURITIES BOUGHT AND SOLD BY THE FIRM AS
BROKER AND AS DEALER FOR AN INDEFINITE PERIOD PRIOR TO SEPTEMBER 20,
1943, ABOUT 15 PER CENT WERE IN THE UNDERWRITING FIELD.  THE FIRM IS
ACTIVE IN THE UNDERWRITING FIELD, GETTING WHAT BUSINESS IT CAN.  IN
1943 IT RANKED NINTH AMONG 94 LEADING INVESTMENT BANKERS IN THE COUNTRY
WITH RESPECT TO ITS TOTAL PARTICIPATIONS IN UNDERWRITINGS OF BONDS. 
FOR A TIME DURING 1943 IT RANKED FIRST AMONG THE UNDERWRITERS OF THE
COUNTRY.  APART FROM MUNICIPALS AND RAILS, ITS PARTICIPATION IN
UNDERWRITINGS DURING 1943 AMOUNTED TO $14,657,000.  SINCE OCTOBER,
1941, RESPONDENTS HAVE DONE NO BUSINESS WITH THE BANK OTHER THAN A
STRICTLY COMMISSION BUSINESS WITH ITS CUSTOMERS.  NOR HAS THE FIRM DONE
BUSINESS WITH THE BANK SINCE THE FALL OF 1941. 

THESE ARE THE ESSENTIAL FACTS FOUND BY THE BOARD. 

ON THE BASIS OF THESE FACTS THE BOARD CONCLUDED THAT DURING THE TIMES
RELEVANT HERE EASTMAN, DILLON & CO. WAS "PRIMARILY ENGAGED" IN THE
UNDERWRITING BUSINESS AND THAT RESPONDENTS, BEING EMPLOYEES OF THE
FIRM, WERE DISQUALIFIED FROM SERVING AS DIRECTORS OF THE BANK. 

THE COURT OF APPEALS CONCLUDED THAT WHEN APPLIED TO A SINGLE SUBJECT
"PRIMARY" MEANS FIRST, CHIEF, OR PRINCIPAL; THAT A FIRM IS NOT
"PRIMARILY ENGAGED" IN UNDERWRITING WHEN UNDERWRITING IS NOT BY ANY
STANDARD ITS CHIEF OR PRINCIPAL BUSINESS.  SINCE THIS FIRM'S
UNDERWRITING BUSINESS DID NOT BY ANY QUANTITATIVE TEST EXCEED 50 PER
CENT OF ITS TOTAL BUSINESS, THE COURT HELD THAT IT WAS NOT "PRIMARILY
ENGAGED" IN THE UNDERWRITING BUSINESS WITHIN THE MEANING OF SEC. 32 OF
THE ACT. 

WE TAKE A DIFFERENT VIEW.  IT IS TRUE THAT "PRIMARY" WHEN APPLIED TO
A SINGLE SUBJECT OFTEN MEANS FIRST, CHIEF, OR PRINCIPAL.  BUT THAT IS
NOT ALWAYS THE CASE.  FOR OTHER ACCEPTED AND COMMON MEANINGS OF
"PRIMARILY" ARE "ESSENTIALLY" (OXFORD ENGLISH DICTIONARY) OR
"FUNDAMENTALLY" (WEBSTER'S NEW INTERNATIONAL).  AN ACTIVITY OR FUNCTION
MAY BE "PRIMARY" IN THAT SENSE IF IT IS SUBSTANTIAL.  IF THE
UNDERWRITING BUSINESS OF A FIRM IS SUBSTANTIAL, THE FIRM IS ENGAGED IN
THE UNDERWRITING BUSINESS IN A PRIMARY WAY, THOUGH BY ANY QUANTITATIVE
TEST UNDERWRITING MAY NOT BE ITS CHIEF OR PRINCIPAL ACTIVITY.  ON THE
FACTS IN THIS RECORD WE WOULD FIND IT HARD TO SAY THAT UNDERWRITING WAS
NOT ONE PRIMARY ACTIVITY OF THE FIRM AND BROKERAGE ANOTHER.  IF
"PRIMARILY" IS NOT USED IN THE SENSE WE SUGGEST, THEN THE FIRM IS NOT
"PRIMARILY ENGAGED" IN ANY LINE OF BUSINESS THOUGH IT SPECIALIZES IN AT
LEAST TWO AND DOES A SUBSTANTIAL AMOUNT OF EACH.  ONE MIGHT AS WELL SAY
THAT A PROFESSIONAL MAN IS NOT "PRIMARILY ENGAGED" IN HIS PROFESSION
THOUGH HE HOLDS HIMSELF OUT TO SERVE ALL COMERS AND DEVOTES SUBSTANTIAL
TIME TO THE PRACTICE BUT MAKES THE GREATER SHARE OF HIS INCOME ON THE
STOCK MARKET. 

THAT IS THE CONSTRUCTION GIVEN THE ACT BY THE BOARD.  AND IT IS, WE
THINK, NOT ONLY PERMISSIBLE BUT ALSO MORE CONSONANT WITH THE
LEGISLATIVE PURPOSE THAN THE CONSTRUCTION WHICH THE COURT OF APPEALS
ADOPTED.  FIRMS WHICH DO UNDERWRITING ALSO ENGAGE IN NUMEROUS OTHER
ACTIVITIES.  THE BOARD INDEED OBSERVED THAT, IF ONE WAS NOT "PRIMARILY
ENGAGED" IN UNDERWRITING UNLESS BY SOME QUANTITATIVE TEST IT WAS HIS
PRINCIPAL ACTIVITY, THEN SEC. 32 WOULD APPLY TO NO ONE.  MOREOVER, THE
EVIL AT WHICH THE SECTION WAS AIMED IS NOT ONE LIKELY TO EMERGE ONLY
WHEN THE FIRM WITH WHICH A BANK DIRECTOR IS CONNECTED HAS AN
UNDERWRITING BUSINESS WHICH EXCEEDS 50 PER CENT OF ITS TOTAL BUSINESS. 
EXPERIENCE OF THE 1920'S, THAT A BANK DIRECTOR INTERESTED IN THE
UNDERWRITING BUSINESS MAY USE HIS INFLUENCE IN THE BANK TO INVOLVE IT
OR ITS CUSTOMERS IN SECURITIES WHICH HIS UNDERWRITING HOUSE HAS IN ITS
PORTFOLIO OR HAS COMMITTED ITSELF TO TAKE.  THAT LIKELIHOOD OR
PROBABILITY DOES NOT DEPEND ON WHETHER THE FIRM'S UNDERWRITING BUSINESS
EXCEEDS 50 PER CENT OF ITS TOTAL BUSINESS.  IT MIGHT, OF COURSE, EXIST
WHATEVER THE PROPORTION OF THE UNDERWRITING BUSINESS.  BUT CONGRESS DID
NOT GO THE WHOLE WAY; IT DREW THE LINE WHERE THE NEED WAS THOUGHT TO BE
THE GREATEST.  AND THE LINE BETWEEN SUBSTANTIAL AND UNSUBSTANTIAL SEEMS
TO US TO BE THE ONE INDICATED BY THE WORDS "PRIMARILY ENGAGED." 

THERE IS OTHER INTRINSIC EVIDENCE IN THE BANKING ACT OF 1933 TO
SUPPORT OUR CONCLUSION.  SECTION 20 OF THE ACT OUTLAWS AFFILIATION  FN4
OF A MEMBER BANK WITH AN ORGANIZATION "ENGAGED PRINCIPALLY" IN THE
UNDERWRITING BUSINESS.  SECTION 19 PROVIDES CONTROL OVER BANK HOLDING
COMPANIES.  IN ORDER TO VOTE ITS STOCK IN CONTROLLED BANKS A BANK
HOLDING COMPANY MUST SHOW THAT IT DOES NOT OWN, CONTROL, OR HAVE ANY
INTEREST IN, AND IS NOT PARTICIPATING IN THE MANAGEMENT OR DIRECTION OF
ANY ORGANIZATION "ENGAGED PRINCIPALLY" IN THE UNDERWRITING BUSINESS. 
ON THE OTHER HAND, WHEN CONGRESS CAME TO DEAL WITH THE PRACTICE OF
UNDERWRITERS TAKING CHECKING DEPOSITS, IT USED LANGUAGE DIFFERENT FROM
WHAT IT USED EITHER IN SECS. 19 AND 20 ON THE ONE HAND OR IN SEC. 32 ON
THE OTHER.  BY SEC. 21 IT PROHIBITED ANY ORGANIZATION "ENGAGED" IN THE
UNDERWRITING BUSINESS "TO ENGAGE AT THE SAME TIME TO ANY EXTENT
WHATEVER" IN THE BUSINESS OF RECEIVING CHECKING DEPOSITS.  THUS WITHIN
THE SAME ACT WE FIND CONGRESS DEALING WITH SEVERAL TYPES OF
UNDERWRITING FIRMS - THOSE "ENGAGED" IN UNDERWRITING, THOSE "PRIMARILY
ENGAGED" IN UNDERWRITING, THOSE "ENGAGED PRINCIPALLY" IN UNDERWRITING. 
THE INFERENCE SEEMS REASONABLE TO US THAT CONGRESS BY THE WORDS IT
CHOSE MARKED A DISTINCTION WHICH WE SHOULD NOT OBLITERATE BY READING
"PRIMARILY" TO MEAN "PRINCIPALLY." 

THE COURT OF APPEALS LAID SOME STRESS ON THE FACT THAT CONGRESS DID
NOT ABOLISH THE BANK AFFILIATE SYSTEM BUT ONLY THOSE UNDERWRITER
AFFILIATES WHICH WERE UNDER THE CONTROL OF A MEMBER BANK OR WHICH WERE
UNDER A COMMON CONTROL WITH IT.  FN5  SECTION 20.  SINCE CONGRESS MADE
MAJORITY CONTROL CRITICAL UNDER SEC. 20, IT WAS THOUGHT THAT UNDER SEC.
32 A FIRM WAS NOT "PRIMARILY ENGAGED" IN UNDERWRITING UNLESS
UNDERWRITING CONSTITUTED A MAJORITY OF ITS BUSINESS.  BUT THE TWO
SITUATIONS ARE NOT COMPARABLE.  IN SEC. 32 CONGRESS WAS NOT DEALING
WITH THE PROBLEM OF CONTROL OF UNDERWRITERS BY BANKS OR VICE VERSA. 
THE PROHIBITED NEXUS IS IN NO WAY DEPENDENT ON THE PRESENCE OR ABSENCE
OF CONTROL, NOR WOULD IT BE MADE SO EVEN IF "PRIMARILY ENGAGED" IN
UNDERWRITING WERE CONSTRUED TO MEAN PRINCIPALLY ENGAGED IN THAT
BUSINESS.  SECTION 32 WAS DESIGNED, AS WE HAVE SAID, TO REMOVE TEMPTING
OPPORTUNITIES FROM THE MANAGEMENT AND PERSONNEL OF MEMBER BANKS.  IN NO
REALISTIC SENSE DO THOSE OPPORTUNITIES DISAPPEAR MERELY BECAUSE THE
UNDERWRITING ACTIVITIES OF THE OUTSIDE FIRM WITH WHICH THE OFFICER,
DIRECTOR, OR EMPLOYEE IS CONNECTED HAPPENS TO FALL BELOW 51 PER CENT.
FIFTY-ONE PER CENT, WHICH IS RELEVANT IN TERMS OF CONTROL, IS
IRRELEVANT HERE.  THE FACT THEN THAT CONGRESS DID NOT ABOLISH
UNDERWRITER AFFILIATES SERVES AS NO GUIDE IN DETERMINING WHETHER
"PRIMARILY ENGAGED" IN UNDERWRITING AS USED IN SEC. 32 MEANS
PRINCIPALLY ENGAGED OR SUBSTANTIALLY ENGAGED IN THAT BUSINESS. 

DIRECTOR IN QUESTION HAS IN FACT BEEN DERELICT IN HIS DUTIES OR HAS IN
ANY WAY BREACHED HIS FIDUCIARY OBLIGATION TO THE BANK.  IT IS A
PREVENTIVE OR PROPHYLACTIC MEASURE.  THE FACT THAT RESPONDENTS HAVE
BEEN SCRUPULOUS IN THEIR RELATIONSHIPS TO THE BANK IS THEREFORE
IMMATERIAL. 

THERE IS A SUGGESTION THAT IF "PRIMARILY" DOES NOT MEAN PRINCIPALLY
BUT MERELY CONNOTES SUBSTANTIALITY, SEC. 32 CONSTITUTES AN UNLAWFUL
DELEGATION OF AUTHORITY TO THE BOARD.  BUT WE THINK IT PLAIN UNDER OUR
DECISIONS THAT IF SUBSTANTIALITY IS THE STATUTORY GUIDE, THE LIMITS OF
ADMINISTRATIVE ACTION ARE SUFFICIENTLY DEFINITE OR ASCERTAINABLE SO AS
TO SURVIVE CHALLENGE ON THE GROUNDS OF UNCONSTITUTIONALITY.  SUNSHINE
ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 397-400; OPP COTTON MILLS
V. ADMINISTRATOR, 312 U.S. 126, 142-146; YAKUS V. UNITED STATES, 321
U.S. 414, 424-428; BOWLES V. WILLINGHAM, 321 U.S. 503, 512-516. 
REVERSED. 

FN1  SECTION 30 ALSO PROVIDES: 

"THAT SUCH ORDER AND THE FINDINGS OF FACT UPON WHICH IT IS BASED
SHALL NOT BE MADE PUBLIC OR DISCLOSED TO ANYONE EXCEPT THE DIRECTOR OR
OFFICER INVOLVED AND THE DIRECTORS OF THE BANK INVOLVED, OTHERWISE THAN
IN CONNECTION WITH PROCEEDINGS FOR A VIOLATION OF THIS SECTION.  ANY
SUCH DIRECTOR OR OFFICER REMOVED FROM OFFICE AS HEREIN PROVIDED WHO
THEREAFTER AFTER PARTICIPATES IN ANY MANNER IN THE MANAGEMENT OF SUCH
BANK SHALL BE FINED NOT MORE THAN $5,000, OR IMPRISONED FOR NOT MORE
THAN FIVE YEARS, OR BOTH, IN THE DISCRETION OF THE COURT."    FN2  NOT
MATERIAL HERE IS AN EXCEPTION "IN LIMITED CLASSES OF CASES IN WHICH THE
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM MAY ALLOW SUCH SERVICE
BY GENERAL REGULATIONS WHEN IN THE JUDGMENT OF THE SAID BOARD IT WOULD
NOT UNDULY INFLUENCE THE INVESTMENT POLICIES OF SUCH MEMBER BANK OR THE
ADVICE IT GIVES ITS CUSTOMERS REGARDING INVESTMENTS."  SEC. 32. 

FN3  THE ISSUE, FLOTATION, UNDERWRITING, PUBLIC SALE OR DISTRIBUTION,
AT WHOLESALE OR RETAIL OR THROUGH SYNDICATE PARTICIPATION, OF STOCKS,
BONDS OR OTHER SIMILAR SECURITIES.  THE FIRM DOES NOT DEAL IN UNITED
STATES GOVERNMENT BONDS. 

FN4  DEFINED IN SEC. 2(B) AS DIRECT OR INDIRECT OWNERSHIP OR CONTROL
OF MORE THAN 50 PER CENT OF THE VOTING STOCK OF THE ORGANIZATION IN
QUESTION, COMMON OWNERSHIP OR CONTROL OF 50 PER CENT OR MORE OF SUCH
VOTING STOCK, OR A MAJORITY OF COMMON DIRECTORS. 

FN5  SEE NOTE 4, SUPRA. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

IF THE QUESTION PRESENTED ON THE MERITS IS REVIEWABLE JUDICIALLY, IN
MY OPINION IT IS ONLY FOR ABUSE OF DISCRETION BY THE BOARD OF
GOVERNORS.  NOT ONLY BECAUSE CONGRESS HAS COMMITTED THE SYSTEM'S
OPERATION TO THEIR HANDS, BUT ALSO BECAUSE THE SYSTEM ITSELF IS A
HIGHLY SPECIALIZED AND TECHNICAL ONE, REQUIRING EXPERT AND COORDINATED
MANAGEMENT IN ALL ITS PHASES, I THINK THEIR JUDGMENT SHOULD BE
CONCLUSIVE UPON ANY MATTER WHICH, LIKE THIS ONE, IS OPEN TO REASONABLE
DIFFERENCE OF OPINION.  THEIR SPECIALIZED EXPERIENCE GIVES THEM AN
ADVANTAGE JUDGES CANNOT POSSIBLY HAVE, NOT ONLY IN DEALING WITH THE
PROBLEMS RAISED FOR THEIR DISCRETION BY THE SYSTEM'S WORKING, BUT ALSO
IN ASCERTAINING THE MEANING CONGRESS HAD IN MIND IN PRESCRIBING THE
STANDARDS BY WHICH THEY SHOULD ADMINISTER IT.  ACCORDINGLY THEIR
JUDGMENT IN SUCH MATTERS SHOULD BE OVERTURNED ONLY WHERE THERE IS NO
REASONABLE BASIS TO SUSTAIN IT OR WHERE THEY EXERCISE IT IN A MANNER
WHICH CLEARLY EXCEEDS THEIR STATUTORY AUTHORITY. 

IN THIS CASE I CANNOT SAY THAT EITHER OF THESE THINGS HAS OCCURRED. 
THE BOARD MADE ITS DETERMINATION AFTER THE REQUIRED STATUTORY HEARING
ON NOTICE.  48 STAT. 162, 193, 12 U.S.C. SEC. 77.  THE CONSIDERATION
GIVEN WAS FULL AND THOROUGH, INCLUDING DETAILED FINDINGS OF FACT AND
CONCLUSIONS OF LAW, FOLLOWED BY A CAREFULLY WRITTEN OPINION.  FN1  THE
BOARD CONCLUDED THAT "PRIMARILY" IN SEC. 32 DOES NOT MEAN "FIRST IN
VOLUME IN COMPARISON WITH ANY OTHER BUSINESS OR BUSINESSES IN WHICH IT
(THE EMPLOYER) ENGAGES,"  FN2  BUT MEANS RATHER AS "A MATTER OF PRIMARY
IMPORTANCE," LIKE "PRIMARY" COLORS OR PLANETS OR AS THE WORD IS USED IN
THE PHRASE "THE PRIMARY CAUSES OF A WAR."  THIS VIEW IT FOUND NOT ONLY
SUPPORTED BY ACCEPTED DICTIONARY MEANING BUT ALSO IN CONFORMITY WITH
CONGRESS' INTENT AS ESTABLISHED BY THE LEGISLATIVE HISTORY.  IN A
FURTHER GROUND WHICH WE MUST TAKE AS REFLECTING ITS SPECIALIZED
EXPERIENCE, THE BOARD STATED:  "TO SAY THAT A SECURITIES FIRM RANKING
NINTH AMONG THE LEADING INVESTMENT BANKERS OF THE COUNTRY WITH RESPECT
TO ITS TOTAL PARTICIPATIONS IN UNDERWRITINGS OF BONDS, AND FOR A PERIOD
RANKING FIRST, SHOULD BE HELD TO BE BEYOND THE SCOPE OF THE STATUTE IS
TO SAY THAT CONGRESS ENACTED A STATUTE WITH THE INTENTION THAT IT WOULD
APPLY TO NO ONE." 

I CANNOT SAY THAT THE BOARD'S CONCLUSION, IN THE LIGHT OF THOSE
GROUNDINGS, IS WANTING EITHER FOR WARRANT IN LAW OR FOR REASONABLE
BASIS IN FACT.  THE CONSIDERATIONS STATED IN THE COURT'S OPINION AND IN
THE DISSENTING OPINION FILED IN THE COURT OF APPEALS, 153 F.2D 785,
795, AS WELL AS BY THE BOARD ITSELF, CONFIRM THIS VIEW.  I THINK IT
IMPORTANT, NOT ONLY FOR THIS CASE BUT FOR LIKE ONES WHICH MAY ARISE IN
THE FUTURE, PERHAPS AS A RESULT OF THIS DECISION, TO MAKE CLEAR THAT MY
CONCURRENCE IN THE COURT'S DISPOSITION OF THE CASE IS BASED UPON THE
GROUND I HAVE SET FORTH, AND NOT UPON INDEPENDENT JUDICIAL
DETERMINATION OF THE QUESTION PRESENTED ON THE MERITS.  I DO NOT THINK
THIS COURT OR ANY OTHER SHOULD UNDERTAKE TO RECONSIDER, AS AN
INDEPENDENT JUDGMENT, THE BOARD'S DETERMINATION UPON THAT QUESTION OR
SIMILAR ONES LIKELY TO ARISE, IF THE BOARD WAS NOT WITHOUT BASIS IN
FACT FOR ITS JUDGMENT AND DOES NOT CLEARLY TRANSGRESS A STATUTORY
MANDATE.  MORE THAN HAS BEEN SHOWN HERE WOULD BE REQUIRED TO CAUSE ME
TO BELIEVE THAT THE BOARD HAS EXCEEDED ITS POWER IN EITHER RESPECT. 

FN1  THE OPINION IS NOT REPORTED, PURSUANT TO THE STATUTORY
PROHIBITION, 12 U.S.C. SEC. 77, WHICH IS EFFECTIVE EXCEPT IN CONNECTION
WITH PROCEEDINGS FOR ENFORCEMENT. 

FN2  UNDER SUCH A VIEW, IN CASES INVOLVING DIFFERENT FACTS THE
QUESTION WOULD BECOME JUDICIAL WHETHER "PRIMARILY" MEANS MORE THAN HALF
OF (1) THE GROSS VOLUME OF BUSINESS DONE; (2) THE GROSS PROFIT; (3) THE
NET PROFIT, WHERE SOME BUT NOT ALL THESE FACTORS AS RELATING TO ONE
PHASE OF THE TOTAL ACTIVITIES CARRIED ON AMOUNTS TO MORE THAN HALF THE
GROSS.  SUCH DISCRIMINATIONS WOULD SEEM TO BE CLEARLY WITHIN THE
BOARD'S POWER TO DETERMINE IN THE FIRST INSTANCE.  IF SO, IT IS
DIFFICULT TO SEE WHY THAT POWER DOES NOT INCLUDE THE DETERMINATION MADE
HERE. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 
..END :






















EAGLES V. SAMUELS, 329 U.S. 304 


NO. 59.  ARGUED NOVEMBER 21, 1946.  - DECIDED DECEMBER 23, 1946.  - 151
F.2D 801, REVERSED. 


RESPONDENT REGISTERED UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF
1940 AND WAS CLASSIFIED IV-D UNDER SEC. 5(D), WHICH EXEMPTS "STUDENTS
WHO ARE PREPARING FOR THE MINISTRY IN THEOLOGICAL OR DIVINITY SCHOOLS
RECOGNIZED AS SUCH FOR MORE THAN ONE YEAR" PRIOR TO THE ACT. 
SUBSEQUENTLY, HE APPEARED BEFORE AN ADVISORY PANEL ON THEOLOGICAL
CLASSIFICATIONS ESTABLISHED BY THE NEW YORK CITY DIRECTOR OF SELECTIVE
SERVICE PURSUANT TO SEC. 10(A)(2), WHICH CONSISTED OF PROMINENT LAYMEN
AND RABBIS OF RESPONDENT'S FAITH.  AFTER HEARING RESPONDENT, THE PANEL
CONCLUDED THAT HE WAS NOT "PREPARING IN GOOD FAITH FOR A CAREER OF
SERVICE IN THE PRACTICING RABBINATE" AND SO REPORTED TO THE CITY
DIRECTOR, WHO TRANSMITTED THIS REPORT AND THE TRANSCRIPT OF THE HEARING
TO THE LOCAL BOARD WITH A REQUEST THAT RESPONDENT'S CLASSIFICATION BE
REOPENED BUT WITH THE STATEMENT THAT, WHILE THE LOCAL BOARD SHOULD GIVE
CAREFUL CONSIDERATION TO THE RECOMMENDATION OF THE PANEL, THE
DETERMINATION OF THE CLASSIFICATION MUST BE MADE BY THE BOARD ITSELF OR
BY AN APPEAL AGENCY.  THE LOCAL BOARD RECLASSIFIED RESPONDENT I-A.
AFTER RESPONDENT SUBMITTED ADDITIONAL EVIDENCE AND HAD TWO HEARINGS
BEFORE THE LOCAL BOARD AND ONE BEFORE THE BOARD OF APPEAL, HIS
CLASSIFICATION AS I-A WAS SUSTAINED AND HE WAS INDUCTED INTO THE ARMY. 
HE PETITIONED FOR A WRIT OF HABEAS CORPUS AND WAS RELEASED
UNCONDITIONALLY FROM MILITARY CUSTODY.  HELD: 

1.  THE FACT THAT RESPONDENT HAD BEEN RELEASED UNCONDITIONALLY FROM
MILITARY CUSTODY UNDER A WRIT OF HABEAS CORPUS DOES NOT MAKE THE CASE
MOOT IN THIS COURT, SINCE A REVERSAL WOULD MAKE LAWFUL A RESUMPTION OF
THE CUSTODY.  PP. 306-308. 

2.  HABEAS CORPUS MAY NOT BE USED AS A WRIT OF ERROR AND ITS FUNCTION
IS EXHAUSTED WHEN IT IS ASCERTAINED THAT THE AGENCY UNDER WHOSE ORDER
THE PETITIONER IS BEING HELD HAD JURISDICTION TO ACT.  PP. 311, 315. 

3.  THE USE OF THE THEOLOGICAL PANEL WAS AUTHORIZED BY SEC. 10(A)(2)
OF THE ACT, AUTHORIZING THE ESTABLISHMENT OF "CIVILIAN LOCAL BOARDS,
CIVILIAN APPEAL BOARDS, AND SUCH OTHER AGENCIES  ...  AS MAY BE
NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT."  PP. 308, 312-313. 

4.  FAILURE OF THE STATEMENT FILED BY THE PANEL TO DISCLOSE THE NAMES
OF ITS MEMBERS DID NOT RENDER THE ADMINISTRATIVE PROCEEDINGS INVALID
PER SE, WHERE THE REGISTRANT APPEARED BEFORE THEM, SAW THEM FACE TO
FACE, RECOGNIZED ONE OF THEM, AND MADE NO EFFORT, EITHER AT THE TIME OR
SUBSEQUENTLY, TO ASCERTAIN WHO THE OTHERS WERE.  P. 314. 

5.  NOR ARE THE ADMINISTRATIVE PROCEEDINGS INVALIDATED BY THE FACT
THAT, IN ADDITION TO ANSWERING ECCLESIASTICAL QUESTIONS, THE PANEL
RENDERED AN ADVISORY OPINION ON THE BONA FIDES OF HIS CLAIM.  P. 316. 

6.  THE FACT THAT THERE WAS A TWO-YEAR INTERRUPTION IN RESPONDENT'S
EDUCATION, THAT HE RETURNED TO THE DAY SESSION OF THE SEMINARY IN THE
MONTH WHEN HIS SELECTIVE SERVICE QUESTIONNAIRE WAS RETURNED, AND THAT
THE SEMINARY WAS NOT PREPARING MEN EXCLUSIVELY FOR THE RABBINATE, MAKES
IT IMPOSSIBLE TO SAY THAT THE FINAL CLASSIFICATION MADE BY THE BOARD OF
APPEAL WAS WITHOUT EVIDENCE TO SUPPORT IT. PP. 316-317. 

EAGLES, POST COMMANDING OFFICER, V. UNITED STATES EX REL. SAMUELS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

THE DISTRICT COURT DISMISSED A WRIT OF HABEAS CORPUS SOUGHT BY
RESPONDENT ON THE GROUND THAT HE HAD BEEN ILLEGALLY INDUCTED INTO
MILITARY SERVICE.  THE CIRCUIT COURT OF APPEALS REVERSED, 151 F.2D 801,
AND HE WAS RELEASED UNCONDITIONALLY.  THIS COURT GRANTED CERTIORARI. 
328 U.S. 830.  REVERSED, P. 317. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SAMUELS REGISTERED UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF
1940,  FN1  AS AMENDED, AND THEREAFTER CLAIMED EXEMPTION FROM MILITARY
SERVICE UNDER SEC. 5(D) OF THE ACT.  THAT EXEMPTION INCLUDES NOT ONLY
REGULAR OR DULY ORDAINED MINISTERS OF RELIGION BUT ALSO "STUDENTS WHO
ARE PREPARING FOR THE MINISTRY IN THEOLOGICAL OR DIVINITY SCHOOLS
RECOGNIZED AS SUCH FOR MORE THAN ONE YEAR PRIOR" TO THE ACT.  HE WAS
CLASSIFIED I-A AND INDUCTED INTO THE ARMY.  THEREAFTER HE FILED A
PETITION FOR A WRIT OF HABEAS CORPUS IN THE DISTRICT COURT, SEEKING
RELEASE FROM MILITARY CUSTODY ON THE GROUND THAT HE WAS ENTITLED TO AN
EXEMPTION UNDER SEC. 5(D) OF THE ACT AND THAT HIS CLASSIFICATION AS I-A
WAS UNLAWFUL.  THERE WAS A RETURN AND A HEARING, AND THE DISTRICT COURT
ORDERED THE WRIT DISMISSED.  ON APPEAL THE CIRCUIT COURT OF APPEALS, IN
RELIANCE ON UNITED STATES V. CAIN, 149 F.2D 338, REVERSED AND REMANDED
THE CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO "DISCHARGE" SAMUELS
"FROM MILITARY CUSTODY, WITHOUT PREJUDICE TO FURTHER LAWFUL PROCEEDINGS
UNDER THE SELECTIVE SERVICE ACT."  151 F.2D 801, 802. 

THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED IN ORDER TO RESOLVE THE CONFLICT BETWEEN THE DECISION BELOW AND
UNITED STATES V. HEARN, 153 F.2D 186, IN THE FIFTH CIRCUIT COURT OF
APPEALS. 

FIRST.  A QUESTION OF MOOTNESS LIES AT THE THRESHOLD OF THE CASE
PRESENTED HERE.  WE ARE ADVISED THAT AFTER REMAND OF THE CAUSE THE
DISTRICT COURT ORDERED THE RELEASE OF SAMUELS AND THAT HE WAS THEREUPON
UNCONDITIONALLY RELEASED FROM MILITARY CUSTODY.  SAMUELS CONTENDS THAT
THE CASE IS MOOT SINCE HE IS NO LONGER IN CUSTODY OF THE MILITARY OR OF
ANY ONE ELSE BUT IS FREE TO COME AND GO AS HE PLEASES. 

UNDER OUR DECISIONS THE CASE WOULD BE MOOT IF THE WRIT OF HABEAS
CORPUS HAD BEEN DENIED BELOW AND, PENDING DISPOSITION OF THE PETITION
HERE, SAMUELS HAD RECEIVED A DISCHARGE FROM THE ARMY.  ZIMMERMAN V.
WALKER, 319 U.S. 744.  AND SEE WEBER V. SQUIER, 315 U.S. 810; TORNELLO
V. HUDSPETH, 318 U.S. 792.  THAT SITUATION, LIKE THE CASE OF A PRISONER
WHO, PENDING AN APPEAL FROM DENIAL OF A WRIT OF HABEAS CORPUS, IS
GRANTED BAIL, JOHNSON V. HOY, 227 U.S. 245; WALES V. WHITNEY, 114 U.S.
564, 572-574, WOULD PRESENT NO EXISTING CONTROVERSY.  HABEAS CORPUS IS
THE MEANS OF MAKING A JUDICIAL "INQUIRY INTO THE CAUSE OF RESTRAINT OF
LIBERTY."  R.S. SEC. 752, 28 U.S.C. SEC. 452.  AS STATED IN MCNALLY V.
HILL, 293 U.S. 131, 137, "THERE IS NO WARRANT IN EITHER THE STATUTE OR
THE WRIT FOR ITS USE TO INVOKE JUDICIAL DETERMINATION OF QUESTIONS
WHICH COULD NOT AFFECT THE LAWFULNESS OF THE CUSTODY AND DETENTION." 
IF THE CUSTODY OR RESTRAINT OF LIBERTY IS TERMINATED WITHOUT USE OF THE
WRIT, THE CASE IS FINISHED.  DIFFERENT CONSIDERATIONS ARE BROUGHT INTO
PLAY IF CUSTODY IS ENDED THROUGH THE WRIT ITSELF. 

OUR RULES RECOGNIZE THE BENEFICENT FUNCTION OF THE WRIT, BOWEN V.
JOHNSTON, 306 U.S. 19, 26-27; PEOPLE V. JENNINGS, 246 N.Y. 258, 158
N.E. 613,  FN2  BY PROVIDING THAT A PRISONER TO WHOM THE WRIT HAS BEEN
GRANTED MAY, PENDING APPEAL, BE ENLARGED ON A RECOGNIZANCE.  RULE 45. 
THE FACT THAT HE HAS BEEN SO ENLARGED DOES NOT RENDER THE APPEAL OF THE
CUSTODIAN MOOT.  CARR V. ZAJA, 283 U.S. 52, 53.  FN3  IN SUCH A CASE
THE RELEASE IS OBTAINED THROUGH THE ASSERTION OF JUDICIAL POWER.  IT IS
THE PROPRIETY OF THE EXERCISE OF THAT POWER WHICH IS IN ISSUE IN THE
APPELLATE COURT, WHETHER THE PRISONER IS DISCHARGED OR REMANDED TO
CUSTODY.  THOUGH THE WRIT HAS BEEN GRANTED AND THE PRISONER RELEASED,
THE APPELLATE COURT BY WHAT IT DOES IS NOT RENDERING AN OPINION AND
ISSUING AN ORDER WHICH CANNOT AFFECT THE LITIGANTS IN THE CASE BEFORE
IT.  CF. ST. PIERRE V. UNITED STATES, 319 U.S. 41, 42, AND CASES
CITED.  AFFIRMANCE MAKES THE PRISONER'S RELEASE FINAL AND
UNCONDITIONAL.  REVERSAL UNDOES WHAT THE HABEAS CORPUS COURT DID AND
MAKES LAWFUL A RESUMPTION OF THE CUSTODY.  KNEWEL V. EGAN, 268 U.S.
442, 448; HADDOX V. RICHARDSON, 168 F. 635; JAMES V. AMRINE, 157 KAN.
397, 140 P.2D 362; STATE V. LANGUM, 135 MINN. 320, 160 N.W. 858. 

SECOND.  ON THE MERITS THE CASE INVOLVES PRIMARILY THE USE BY THE
SELECTIVE SERVICE SYSTEM IN NEW YORK CITY OF ADVISORY PANELS ON
THEOLOGICAL CLASSIFICATIONS.  UNDER THE ACT THE PRESIDENT IS AUTHORIZED
TO ESTABLISH "CIVILIAN LOCAL BOARDS, CIVILIAN APPEAL BOARDS, AND SUCH
OTHER AGENCIES, INCLUDING AGENCIES OF APPEAL, AS MAY BE NECESSARY TO
CARRY OUT THE PROVISIONS OF THIS ACT."  SECTION 10(A)(2), 57 STAT. 597,
598, 50 U.S.C. APP. SUPP. III, SEC. 310(A)(2).  WITH EXCEPTIONS NOT
MATERIAL HERE, THE PRESIDENT IS AUTHORIZED TO DELEGATE TO THE DIRECTOR
OF SELECTIVE SERVICE ANY AUTHORITY VESTED IN HIM UNDER THE ACT. 
310(B).  AND THE DIRECTOR MAY REDELEGATE THAT AUTHORITY.  ID.  THE
ADMINISTRATION OF THE SYSTEM IN EACH STATE IS DELEGATED UNDER THE
REGULATIONS TO A STATE DIRECTOR.  SECTIONS 603.11, 603.12, 6 FED. REG.
6827.  IN NEW YORK CITY, HOWEVER, A CITY DIRECTOR HAS BEEN APPOINTED
WHO PERFORMS WITHIN THAT AREA THE FUNCTIONS OF THE STATE DIRECTOR. 
LOCAL BOARDS AND BOARDS OF APPEAL IN NEW YORK CITY.  HE MAY REQUIRE A
LOCAL BOARD TO REOPEN AND CONSIDER ANEW THE CLASSIFICATION OF A
REGISTRANT.  SECTION 626.2(B), 9 FED. REG. 11619, SEC. 626.2-1, 10 FED.
REG. 9210.  HE MAY APPEAL TO A BOARD OF APPEAL ANY DETERMINATION OF A
LOCAL BOARD.  SECTION 627.1, 8 FED. REG. 16720, 10 FED. REG. 9210.  HE
MAY REQUIRE A BOARD OF APPEAL TO RECONSIDER ITS DECISION, SEC. 627.61,
8 FED. REG. 6017, OR APPEAL FROM IT TO THE PRESIDENT.  SECTION 628.1, 7
FED. REG. 10521. 

IT APPEARS THAT THE CITY DIRECTOR, IN AID OF THESE FUNCTIONS,
ESTABLISHED THEOLOGICAL PANELS.  IT WAS THOUGHT DESIRABLE TO GIVE THE
SELECTIVE SERVICE PERSONNEL THE BENEFIT OF THE ADVICE OF THOSE FAMILIAR
WITH THE EDUCATIONAL PRACTICES OF VARIOUS RELIGIOUS GROUPS SO THAT
SELECTIVE SERVICE MIGHT EXERCISE A MORE INFORMED JUDGMENT IN EVALUATING
CLAIMS TO CLASSIFICATIONS IN IV-D. ACCORDINGLY, THEOLOGICAL PANELS WERE
CONSTITUTED, ONE OF WHICH CONSISTED OF PROMINENT LAYMEN AND RABBIS OF
THE JEWISH FAITH WHO GAVE ADVISORY OPINIONS ON THOSE WHO SOUGHT A IV-D
CLASSIFICATION ON THE GROUNDS THAT THEY WERE EITHER RABBIS OR STUDENTS
PREPARING FOR THE MINISTRY IN THE JEWISH RELIGION.  THE MEMBERS OF THE
PANEL WERE VOLUNTEERS, AS PERMITTED BY THE REGULATIONS.  SECTION 602.2,
6 FED. REG. 6826.  AND PURSUANT TO THE REGULATIONS EACH TOOK THE OATH
OF OFFICE.  SECTION 602.4(A), 6 FED. REG. 6826. 

SAMUELS REGISTERED UNDER THE ACT IN FEBRUARY, 1942.  IN MAY AND JULY,
1942, HE FILED WITH HIS LOCAL BOARD QUESTIONNAIRES STATING THAT HE HAD
HAD TWO YEARS OF HIGH SCHOOL EDUCATION; THAT HE WAS A STUDENT AT THE
MESIFTA THEOLOGICAL SEMINARY PREPARING FOR THE RABBINATE; THAT SINCE
1940 HIS REGULAR OCCUPATION WAS THAT OF A CLERK; THAT FOR THE PAST TWO
YEARS HE HAD BEEN EMPLOYED BY A TEXTILE COMPANY; AND THAT THE JOB FOR
WHICH HE WAS BEST FITTED WAS THAT OF A SPIRITUAL LEADER AND A TEACHER
OF HEBREW OR RABBINICAL DUTIES.  THE LOCAL BOARD WAS ADVISED BY THE
SEMINARY THAT SAMUELS HAD ATTENDED THERE SINCE HE WAS SIX YEARS OLD,
THAT HE HAD FINISHED THE EIGHT-YEAR ELEMENTARY COURSE AND THE FOUR-YEAR
PRE-RABBINICAL COURSE, THAT HE HAD BEEN ADMITTED TO THE RABBINICAL
DIVISION IN 1937, THAT HE LEFT THE SCHOOL IN 1939 TO SEEK EMPLOYMENT,
THAT HE RETURNED TO THE EVENING SCHOOL IN SEPTEMBER, 1941, AND THAT HE
WAS TRANSFERRED TO THE DAY SESSION IN JULY, 1942, WHICH, AS LATER
APPEARED, WAS A FEW DAYS BEFORE THE SCHOOL CLOSED FOR THE SUMMER. 

IN AUGUST, 1942, THE LOCAL BOARD CLASSIFIED HIM IV-D.  SECTION
622.44(A), 6 FED. REG. 6607, 6610.  IN MAY, 1944, HE WAS GIVEN A
PHYSICAL EXAMINATION AND FOUND ACCEPTABLE FOR MILITARY SERVICE. 
THEREAFTER THE CITY DIRECTOR REQUESTED THAT HE APPEAR BEFORE THE
THEOLOGICAL PANEL IN RESPECT TO HIS CLAIM TO A IV-D CLASSIFICATION.  HE
APPEARED BEFORE THE PANEL IN JUNE, 1944, STATING, INTER ALIA, THAT HE
EXPECTED TO GRADUATE FROM THE SEMINARY IN 1945, THAT ILL HEALTH CAUSED
HIM TO LEAVE THE SCHOOL IN 1939, THAT BETWEEN 1940 AND 1942 HE WORKED
AS A CLERK, AND THAT HE RETURNED TO THE SEMINARY AS A FULL-TIME STUDENT
AT ABOUT THE TIME HE FILED HIS SELECTIVE SERVICE QUESTIONNAIRE. 

THE PANEL REPORTED THAT THE SEMINARY WHICH SAMUELS ATTENDED WAS NOT
PREPARING MEN EXCLUSIVELY FOR THE RABBINATE, THAT ORTHODOX TRADITION
ENCOURAGED ADVANCED STUDY OF THE SUBJECTS IN WHICH STUDENTS FOR THE
MINISTRY WERE TRAINED, AND THAT STUDENTS ULTIMATELY INTENDING TO ENTER
BUSINESS OR A PROFESSION OR SOME NON-RABBINIC ACTIVITY IN THE FIELD OF
RELIGION MAY BE ENROLLED IN THE SAME CLASSES AS THOSE PREPARING FOR THE
RABBINATE.  THE PANEL STATED THAT IT THEREFORE SEEMED ESSENTIAL TO
DETERMINE IN EACH CASE WHAT THE REGISTRANT HAD IN MIND IN PURSUING HIS
COURSE OF STUDY; THAT TO MAKE THAT DETERMINATION THE CHARACTER OF THE
SEMINARY, THE SINCERITY OF THE REGISTRANT'S DECLARED PURPOSE, HIS
DEMEANOR, AND THE IMPRESSION AS TO HIS CANDOR AND HONESTY SHOULD BE
CONSIDERED.  IT CONCLUDED THAT SAMUELS WAS NOT "PREPARING IN GOOD FAITH
FOR A CAREER OF SERVICE IN THE PRACTICING RABBINATE."  ITS
RECOMMENDATION AND THE TRANSCRIPT OF THE HEARING BEFORE IT WERE SENT TO
THE CITY DIRECTOR WHO FORWARDED THEM TO THE LOCAL BOARD WITH A REQUEST
THAT SAMUELS' CLASSIFICATION BE REOPENED AND WITH THE STATEMENT THAT
"WHILE THE LOCAL BOARD SHOULD GIVE CAREFUL CONSIDERATION TO THE
RECOMMENDATION OF THE ADVISORY PANEL, THE RESPONSIBILITY OF DETERMINING
THE REGISTRANT'S CLASSIFICATION MUST REST WITH THE LOCAL BOARD ITSELF,
OR THE APPROPRIATE AGENCY OF APPEAL." 

THE LOCAL BOARD RECLASSIFIED SAMUELS I-A IN AUGUST, 1944.  HE
SUBMITTED ADDITIONAL EVIDENCE AND REQUESTED A HEARING.  ONE WAS HAD IN
SEPTEMBER, 1944 AND ANOTHER IN OCTOBER, 1944.  THERE IS NO SHOWING THAT
THE RECOMMENDATION OF THE PANEL OR THE TRANSCRIPT OF THE HEARING BEFORE
IT WAS KEPT FROM SAMUELS.  THEY WERE NOT MARKED CONFIDENTIAL IN THE
FILE.  THE LOCAL BOARD, INDEED, ALLOWED SAMUELS TO CORRECT ALLEGED
INACCURACIES IN THE TRANSCRIPT.  THE LOCAL BOARD ORDERED HIM CONTINUED
IN I-A AND, ON APPEAL, THE BOARD OF APPEAL ALSO CLASSIFIED HIM AS I-A.
A FEW DAYS LATER SAMUELS FILED ADDITIONAL INFORMATION WITH THE LOCAL
BOARD AND REQUESTED THAT HIS CLASSIFICATION BE REOPENED.  ANOTHER
HEARING WAS HELD, SAMUELS BEING PRESENT.  HE ADVISED THE BOARD THAT HE
HAD APPEARED OF HIS OWN VOLITION BEFORE A COMMITTEE REPRESENTING THE
UNION OF ORTHODOX RABBIS (BUT NOT CONNECTED WITH THE SELECTIVE SERVICE
SYSTEM) AND THAT THE COMMITTEE CONCLUDED HE WAS A STUDENT PREPARING IN
GOOD FAITH FOR THE MINISTRY.  WHAT FACTS THAT COMMITTEE MAY HAVE ACTED
UPON DO NOT APPEAR.  IN ANY EVENT, THE LOCAL BOARD DENIED SAMUELS'
REQUEST TO REOPEN THE CLASSIFICATION BY A DIVIDED VOTE; AND SHORTLY
THEREAFTER HE WAS INDUCTED INTO THE ARMY. 

CONGRESS MADE THE DECISIONS OF THE LOCAL BOARDS AND OF THE BOARDS OF
APPEAL "FINAL," EXCEPT AS APPEALS FROM THEM MAY BE AUTHORIZED, SEC.
10(A)(2), WITHHOLDING FROM THE COURTS THE CUSTOMARY POWER OF REVIEW OF
ADMINISTRATIVE ACTION.  SEE ESTEP V. UNITED STATES, 327 U.S. 114. 

IT IS ELEMENTARY THAT HABEAS CORPUS MAY NOT BE USED AS A WRIT OF
ERROR.  TISI V. TOD, 264 U.S. 131; WOOLSEY V. BEST, 299 U.S. 1.  THE
FUNCTION OF HABEAS CORPUS IS EXHAUSTED WHEN IT IS ASCERTAINED THAT THE
AGENCY UNDER WHOSE ORDER THE PETITIONER IS BEING HELD HAD JURISDICTION
TO ACT.  IF THE WRIT IS TO ISSUE, MERE ERROR IN THE PROCEEDING WHICH
RESULTED IN THE DETENTION IS NOT SUFFICIENT.  TISI V. TOD, SUPRA.
DEPRIVATION OF PETITIONER OF BASIC AND FUNDAMENTAL PROCEDURAL
SAFEGUARDS, AN ASSERTION OF POWER TO ACT BEYOND THE AUTHORITY GRANTED
THE AGENCY, AND ACTION WITHOUT EVIDENCE TO SUPPORT ITS ORDER, ARE
FAMILIAR EXAMPLES OF THE SHOWING WHICH IS NECESSARY.  SEE JOHNSON V.
ZERBST, 304 U.S. 458; BRIDGES V. WIXON, 326 U.S. 135, 149.  BUT IT IS
NOT ENOUGH TO SHOW THAT THE DECISION WAS WRONG, TISI V. TOD, SUPRA, OR
THAT INCOMPETENT EVIDENCE WAS ADMITTED AND CONSIDERED.  VAJTAUER V.
COMMISSIONER, 273 U.S. 103.  IF IT CANNOT BE SAID THAT THERE WERE
PROCEDURAL IRREGULARITIES OF SUCH A NATURE OR MAGNITUDE AS TO RENDER
THE HEARING UNFAIR, BRIDGES V. WIXON, SUPRA, P. 156, OR THAT THERE WAS
NO EVIDENCE TO SUPPORT THE ORDER, VAJTAUER V. COMMISSIONER, SUPRA, THE
INQUIRY IS AT AN END. 

WE DO NOT THINK THAT THE USE OF THE THEOLOGICAL PANEL PER SE INFECTED
THE WHOLE ADMINISTRATIVE PROCEEDING AND RENDERED IT SO UNFAIR AS TO BE
NUGATORY.  THE TASK OF THE LOCAL BOARDS IN EVALUATING CLAIMS TO
EXEMPTION IS ALMOST CERTAIN TO RAISE PERPLEXING PROBLEMS, ESPECIALLY IN
LARGE CENTERS WHERE THE STATUS AND ACTIVITIES OF REGISTRANTS ARE NOT SO
WELL KNOWN IN THE COMMUNITY.  THE LOCAL BOARDS WILL FREQUENTLY HAVE TO
MAKE INQUIRIES ON THEIR OWN.  AND WHEN IT COMES TO EXEMPTIONS CLAIMED
UNDER SEC. 5(D), THE VARIETY OF RELIGIOUS FAITHS AND THE DIFFERING
EDUCATIONAL PRACTICES OF THE CHURCHES OR OF SECTS WITHIN ONE FAITH MAY
CREATE DIFFICULT QUESTIONS FOR THE BOARDS.    WE AGREE WITH THE COURT
IN UNITED STATES V. HEARN, SUPRA, P. 188, THAT ADVICE FROM WELL
INFORMED MEMBERS OF THE FAITH IN QUESTION MAY "BOTH HELP AND SPEED JUST
CLASSIFICATION."  CONGRESS WROTE INTO THE ACT A COMPARABLE PROCEDURE
FOR THE HANDLING OF CLAIMS FOR EXEMTION BY CONSCIENTIOUS OBJECTORS. 
WHERE SUCH CLAIMS ARE DENIED BY THE LOCAL BOARD AND APPEALED, THEY ARE
REFERRED TO THE DEPARTMENT OF JUSTICE FOR A HEARING AND AN ADVISORY
REPORT.  SECTION 5(G).  BUT THE FACT THAT THERE IS NO SPECIFIC
STATUTORY PROVISION FOR THE CREATION OF THEOLOGICAL PANELS DOES NOT
MAKE THEIR USE IMPROPER.  WISE ADMINISTRATION MAY CALL FOR THE EXPERT
ADVICE WHICH THEY ALONE CAN OFFER.  AND WE SEE NO DIFFERENCE IN
PRINCIPLE IF THEY ARE FORMALLY CONSTITUTED AND REGULARLY USED IN LIEU
OF INQUIRY TO MEMBERS OF THE PARTICULAR FAITH AS INDIVIDUAL CASES
ARISE.  THE ADMINISTRATIVE FUNCTION ENTRUSTED TO THE SELECTIVE SERVICE
IS AN ENORMOUS ONE.  THE ACT CONTEMPLATES AN ADMINISTRATIVE
ORGANIZATION HIGHLY DECENTRALIZED SO AS TO OPERATE EFFECTIVELY AT THE
LOCAL LEVEL.  MORE THAN THE DIRECTOR, LOCAL BOARDS, AND BOARDS OF
APPEAL WERE AUTHORIZED.  FOR SEC. 10(A)(2), AS WE HAVE NOTED,
AUTHORIZED THE CREATION OF "OTHER AGENCIES" AS WELL.  A THEOLOGICAL
ADVISORY PANEL, SERVING SOLELY IN AN ADVISORY CAPACITY, WOULD SEEM TO
BE INCLUDED IN THAT CATEGORY.  THE INFORMATION RECEIVED BY THE BOARD
FROM THE PANEL, LIKE INFORMATION FROM ANY OTHER SOURCE, MUST BE PUT IN
WRITING IN THE FILE SO THAT THE REGISTRANT MAY EXAMINE IT, EXPLAIN OR
CORRECT IT, OR DENY IT.  FN4  THERE IS, MOREOVER, NO CONFIDENTIAL
INFORMATION WHICH CAN BE KEPT FROM THE REGISTRANT UNDER THE
REGULATIONS.  FN5  WITH THOSE SAFEGUARDS A TRULY EXPERT PANEL MIGHT
SERVE A MOST USEFUL FUNCTION WITHOUT THE ADMINISTRATIVE PROCESS BEING
CORRUPTED BY ANY UNFAIR PROCEDURE. 

DISTINCT QUESTIONS WOULD BE RAISED IF A REGISTRANT OF ONE FAITH WERE
REFERRED TO A THEOLOGICAL PANEL ON WHICH HIS FAITH WAS NOT
REPRESENTED.  SEE UNITED STATES V. BALOGH, 157 F.2D 939.  BUT IT HAS
NOT BEEN SHOWN THAT SUCH A CONDITION OBTAINED HERE. 

THE COURT IN UNITED STATES V. CAIN, SUPRA, P. 341, HELD THAT THOUGH
THE PROPRIETY OF THE USE OF A THEOLOGICAL PANEL BE ASSUMED, IT MUST BE
LIMITED BY TWO CONDITIONS:  THE NAMES OF THE MEMBERS OF THE PANEL MUST
BE DISCLOSED TO THE REGISTRANT SO THAT HE MAY BE IN A POSITION TO
CHALLENGE IT; THE ADVICE OR ANSWERS WHICH IT GIVES MUST BE LIMITED TO
ECCLESIASTICAL QUESTIONS. 

IN THE STATEMENT WHICH THE PANEL FILED IN THIS CASE THE NAMES ARE NOT
DISCLOSED.  BUT WE DO NOT THINK THAT FACT RENDERED THE ADMINISTRATIVE
PROCEEDINGS INVALID PER SE.  THIS IS NOT A CASE OF A REGISTRANT BEING
PASSED UPON BY A SECRET GROUP.  HE APPEARED BEFORE THEM, SAW THEM FACE
TO FACE, AND INDEED RECOGNIZED ONE OF THEM.  THERE IS NO SHOWING THAT
SAMUELS TRIED TO ASCERTAIN WHO THE PANEL MEMBERS WERE, EITHER AT THE
TIME OR SUBSEQUENTLY, AND WAS DENIED THE INFORMATION.  THOUGH WE ASSUME
THAT THE REGULATIONS REQUIRE THE FILE TO DISCLOSE THE NAMES AND
AFFILIATIONS OF THE PANEL MEMBERS, THE MERE ABSENCE OF A FORMAL
DISCLOSURE IS NOT, WITHOUT MORE, SO GRAVE AN OMISSION AS TO UNDERMINE
THE WHOLE ADMINISTRATIVE PROCEEDING. 

THE QUESTION IS NOT WHETHER THE ALLEGATIONS OF THE PETITION ARE
SUFFICIENT TO JUSTIFY THE GRANT OF THE WRIT OR THE ISSUANCE OF A RULE
TO SHOW CAUSE, SO THAT THE FACTS CAN BE ASCERTAINED IN ACCORD WITH THE
PROCEDURE OUTLINED IN WALKER V. JOHNSTON, 312 U.S. 275.  IN THIS CASE
THERE WAS A RETURN TO THE WRIT, A FULL HEARING WAS HAD, AND ALL
EVIDENCE OFFERED WAS RECEIVED.  SAMUELS HAD THE BURDEN OF SHOWING THAT
HE WAS UNLAWFULLY DETAINED.  WALKER V. JOHNSTON, SUPRA.  NOT EVERY
PROCEDURAL ERROR, BUT ONLY THOSE SO FLAGRANT AS TO RESULT IN AN UNFAIR
HEARING RENDER THE PROCEEDINGS VULNERABLE IN A COLLATERAL ATTACK.  TISI
V. TOD, SUPRA, P. 133; BRIDGES V. WIXON, SUPRA, PP. 152-156.  ON THE
CASE SAMUELS HAS MADE OUT, THE MOST THAT HAS BEEN SHOWN IS THAT THE USE
OF THE THEOLOGICAL PANEL MIGHT RESULT IN A HEARING SO UNFAIR AS TO
DEPRIVE THE ADMINISTRATIVE PROCEEDINGS OF VITALITY.  SAMUELS HAS FAILED
TO SHOW THAT IN HIS CASE IT HAD THAT EFFECT.  HE HAS THEREFORE FAILED
TO SUSTAIN THE BURDEN OF PROOF WHICH WAS ON HIM. 

SECRECY AND ANONYMITY ARE NOT CONGENIAL TO OUR TRADITIONS OF
PROCEDURE, NOR IN KEEPING WITH THE REGULATIONS UNDER THIS ACT.  BUT AS
WE HAVE SAID, THE RANGE OF INQUIRY IN A HABEAS CORPUS PROCEEDING IS
LIMITED.  WE ARE NOT SITTING IN REVIEW OF ACTION OF FEDERAL AGENCIES
OVER WHICH WE HAVE THE POWER OF SUPERVISION.  CF. MCNABB V. UNITED
STATES, 318 U.S. 332.  THE FUNCTION OF HABEAS CORPUS IS NOT TO CORRECT
A PRACTICE BUT ONLY TO ASCERTAIN WHETHER THE PROCEDURE COMPLAINED OF
HAS RESULTED IN AN UNLAWFUL DETENTION.  IT IS THE IMPACT OF THE
PROCEDURE ON THE PERSON SEEKING THE WRIT THAT IS CRUCIAL.  WHATEVER
POTENTIALITIES OF ABUSE A PARTICULAR PROCEDURE MAY HAVE, THE CASE IS AT
AN END IF THE CHALLENGED PROCEEDING CANNOT BE SAID TO HAVE BEEN SO
CORRUPTED AS TO HAVE MADE IT UNFAIR.  SAMUELS POINTS TO POSSIBILITIES
OF ABUSE.  BUT HE FAILS TO ESTABLISH PREJUDICE IN HIS CASE. 

IF, AS WAS HELD IN UNITED STATES V. CAIN, SUPRA, THE PANEL MUST BE
RESTRICTED TO ANSWERING ECCLESIASTICAL QUESTIONS, SAMUELS SHOULD
PREVAIL.  FOR THE PANEL IN QUESTION NOT ONLY GAVE THE BOARD INFORMATION
CONCERNING THE SEMINARY WHICH SAMUELS ATTENDED BUT ALSO RENDERED AN
ADVISORY OPINION ON THE BONA FIDES OF HIS CLAIM.  THE ARGUMENT FOR
RESTRICTING THE PANEL TO ECCLESIASTICAL QUESTIONS IS BASED ON THE
THOUGHT THAT IT IS ONLY ON SUCH SUBJECTS THAT THE BOARD NEEDS
SPECIALIZED INFORMATION, WHILE IF THE BOARD RELIES ON A GENERAL
ADVISORY OPINION OF THE PANEL, IT IS DEVOLVING ITS ADMINISTRATIVE
RESPONSIBILITY.  SEE UNITED STATES V. CAIN, SUPRA, PP. 341-342. 

IT IS PLAIN THAT THE LOCAL BOARDS AND THE BOARDS OF APPEAL MAY NOT
ABDICATE THEIR DUTY BY DELEGATING TO OTHERS THE RESPONSIBILITY FOR
MAKING CLASSIFICATIONS.  THAT IS THEIR STATUTORY FUNCTION.  SECTION
10(A)(2).  BUT NO SUCH CASE IS MADE OUT IN THIS RECORD.  THE CITY
DIRECTOR SUBMITTED THE PANEL'S REPORT WITH THE ADMONITION THAT IT WAS
ADVISORY ONLY AND THAT IT WAS THE BOARD'S RESPONSIBILITY TO MAKE THE
CLASSIFICATION.  THE RECOMMENDATION OF THE PANEL WAS FOLLOWED.  BUT
SAMUELS WAS SUBSEQUENTLY GIVEN NOT ONLY ONE BUT TWO HEARINGS BEFORE THE
LOCAL BOARD AND A HEARING BEFORE THE BOARD OF APPEAL.  THERE IS NO
INDICATION THAT EITHER BOARD RELIED SOLELY ON THE PANEL'S REPORT OR
CONSIDERED ITSELF BOUND BY IT.  IN FACT BOTH BOARDS RECEIVED ADDITIONAL
EVIDENCE SUBMITTED BY SAMUELS AND CONSIDERED IT.  THE RECORD DOES NOT
BEAR OUT THE SUGGESTION THAT EITHER BOARD WAS A RUBBER STAMP FOR THE
PANEL. 

NOR DO WE THINK THAT THE RANGE OF INQUIRY AND RECOMMENDATION OF THE
PANEL WAS TOO BROAD.  IF A PANEL IS TRULY EXPERT IN THE FIELD, ITS
EXPERTNESS IS NOT NECESSARILY LIMITED TO KNOWLEDGE OF THE THEOLOGICAL
SCHOOLS, THE COURSE OF TRAINING, AND THE EDUCATIONAL PRACTICES AND
TRADITIONS.  ITS ACQUAINTANCE WITH THE MINISTRY OF THAT FAITH AND WITH
THE NORMS OF THE PROFESSION MAY WELL GIVE IT SPECIAL INSIGHT INTO THE
CLAIMS OF THOSE SEEKING EXEMPTION.  TO DRAW THE LINE AT QUESTIONS
TECHNICALLY ECCLESIASTICAL IS TO MAKE A DISTINCTION WHICH MAY BE WHOLLY
ARBITRARY IN TERMS OF THE PANEL'S EXPERTNESS.  A PANEL MIGHT ACT ON
IRRELEVANCIES; IT MIGHT USURP THE FUNCTIONS OF A BOARD.  WE DISCOVER
NOTHING OF THE KIND HERE.  THE FACT THAT THE BOARD FOLLOWS THE ADVICE
OF THE PANEL DOES NOT NECESSARILY MEAN THAT IT FUNCTIONS IN A
SUBSERVIENT WAY.  THE FACT IS THAT THE LOCAL BOARD AND THE BOARD OF
APPEAL GAVE SAMUELS FURTHER HEARINGS AND RECEIVED AND CONSIDERED ALL
EVIDENCE SUBMITTED.  WE FIND NO PROCEDURAL ERROR OF SUCH MAGNITUDE AS
TO WARRANT AN UPROOTING OF THE ENTIRE ADMINISTRATIVE PROCEEDING IN THIS
COLLATERAL ATTACK UPON IT. 

NOR CAN WE SAY THERE WAS NO EVIDENCE TO SUPPORT THE FINAL
CLASSIFICATION MADE BY THE BOARD OF APPEAL.  SAMUELS' STATEMENT THAT HE
WAS BEST FITTED TO BE A HEBREW SCHOOL TEACHER AND SPIRITUAL LEADER, THE
TWO-YEAR INTERRUPTION IN HIS EDUCATION, HIS RETURN TO THE DAY SESSION
OF THE SEMINARY IN THE MONTH WHEN HIS SELECTIVE SERVICE QUESTIONNAIRE
WAS RETURNED, AND THE FACT THAT THE SEMINARY IN QUESTION WAS APPARENTLY
NOT PREPARING MEN EXCLUSIVELY FOR THE RABBINATE MAKE QUESTIONABLE HIS
CLAIM THAT HE WAS PREPARING IN GOOD FAITH FOR THE RABBINATE.  A
REGISTRANT MIGHT SEEK A THEOLOGICAL SCHOOL AS A REFUGE FOR THE DURATION
OF THE WAR.  CONGRESS DID NOT CREATE THE EXEMPTION IN SEC. 5(D) FOR
HIM.  THERE WAS SOME EVIDENCE THAT THIS WAS SAMUELS' PLAN; AND THAT
EVIDENCE, COUPLED WITH HIS DEMEANOR AND ATTITUDE, MIGHT HAVE SEEMED
MORE PERSUASIVE TO THE BOARDS THAN IT DOES IN THE COLD RECORD.  OUR
INQUIRY IS ENDED WHEN WE ARE UNABLE TO SAY THAT THE BOARD FLOUTED THE
COMMAND OF CONGRESS IN DENYING SAMUELS THE EXEMPTION.  REVERSED. 

FN1  54 STAT. 885, 55 STAT. 211, 621, 845, 56 STAT. 386, 50 U.S.C.
APP., 50 U.S.C. APP. SUPP. I, AND 50 U.S.C. APP. SUPP. II, SEC. 301 ET
SEQ. 

OUR CITATIONS OF THE ACT AND THE REGULATIONS THROUGHOUT THE OPINION
REFER TO THE PROVISIONS APPLICABLE AT THE TIMES RELEVANT HERE. 

FN2  IN THAT CASE MR. JUSTICE CARDOZO, THEN CHIEF JUDGE OF THE NEW
YORK COURT OF APPEALS, SAID, "IT WOULD BE INTOLERABLE THAT A CUSTODIAN
ADJUDGED TO BE AT FAULT, PLACED BY THE JUDGMENT OF THE COURT IN THE
POSITION OF A WRONGDOER, SHOULD AUTOMATICALLY, BY A MERE NOTICE OF
APPEAL, PROLONG THE TERM OF IMPRISONMENT, AND FRUSTRATE THE OPERATION
OF THE HISTORIC WRIT OF LIBERTY."  246 N.Y. P. 260, 158 N.E. 613. 

FN3  IT APPEARS FROM THE BRIEFS IN THAT CASE THAT AFTER THE WRIT HAD
ISSUED IN THE LOWER COURT THE PETITIONER HAD BEEN DISCHARGED, PENDING
APPEAL, ON A RECOGNIZANCE. 

FN4  THE REGULATIONS PROVIDE THAT IN CLASSIFYING A REGISTRANT, "ORAL
INFORMATION SHOULD NOT BE CONSIDERED UNLESS IT IS SUMMARIZED IN WRITING
AND THE SUMMARY PLACED IN THE REGISTRANT'S FILE.  UNDER NO
CIRCUMSTANCES SHOULD THE LOCAL BOARD RELY UPON INFORMATION RECEIVED BY
A MEMBER PERSONALLY UNLESS SUCH INFORMATION IS REDUCED TO WRITING AND
PLACED IN THE REGISTRANT'S FILE."  SECTION 623.2, 9 FED. REG. 437, 10
FED. REG. 8541. 

FN5  SEE SEC. 605.32(A), 9 FED. REG. 9190. 
..END :



EAGLES V. HOROWITZ, 329 U.S. 317 


NO. 58.  ARGUED NOVEMBER 21, 1946.  - DECIDED DECEMBER 23, 1946.  - 151
F.2D 801, REVERSED. 


THIS IS A COMPANION CASE TO EAGLES V. U.S. EX REL. SAMUELS, ANTE, P.
304, IN WHICH MOST OF THE QUESTIONS RAISED HERE WERE RULED UPON.  THE
PRINCIPAL DIFFERENCES IN THE FACTS ARE THAT THE ADVISORY PANEL WAS
COMPOSED ENTIRELY OF LAYMEN, ITS REPORT WAS MARKED "CONFIDENTIAL," AND
RESPONDENT WAS ENLARGED UPON A RECOGNIZANCE.  HELD: 

1.  THE CASE IS NOT MOOT, FOR THE REASONS STATED IN THE SAMUELS
CASE.  P. 318. 

2.  THE FACT THAT THE PANEL WAS COMPOSED ENTIRELY OF LAYMEN DOES NOT
REQUIRE A DIFFERENT RESULT FROM THAT REACHED IN THE SAMUELS CASE.  PP.
322-323. 

3.  THE FACT THAT ITS REPORT WAS MARKED "CONFIDENTIAL" CONTRARY TO
THE APPLICABLE REGULATIONS DOES NOT REQUIRE A DIFFERENT RESULT, BECAUSE
THE LOCAL BOARD WAS NOT REQUIRED TO KEEP THE REPORT CONFIDENTIAL AND
THERE IS NO SHOWING THAT IT DID.  P. 323. 

EAGLES, POST COMMANDING OFFICER, V. UNITED STATES EX REL. HOROWITZ. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

RESPONDENT, HAVING BEEN INDUCTED INTO THE ARMY, WAS RELEASED ON A
WRIT OF HABEAS CORPUS AFTER THE CIRCUIT COURT OF APPEALS HAD REVERSED,
151 F.2D 801, A DECISION BY THE DISTRICT COURT ADVERSE TO HIM.  THIS
COURT GRANTED CERTIORARI.  328 U.S. 830.  REVERSED, P. 323. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO EAGLES V. SAMUELS, NO. 59, DECIDED THIS
DAY, ANTE P. 304.  CERTIORARI ALSO BRINGS IT HERE FROM THE THIRD
CIRCUIT COURT OF APPEALS.  THAT COURT FOLLOWED THE SAME PROCEDURE HERE
AS IT DID IN SAMUELS' CASE; IT REVERSED THE DISTRICT COURT WHICH HAD
DISMISSED THE WRIT OF HABEAS CORPUS BROUGHT ON BEHALF OF HOROWITZ, AND
REMANDED THE CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO DISCHARGE
HIM FROM MILITARY CUSTODY.  151 F.2D 801. 

IT APPEARS THAT AFTER THE REMAND HOROWITZ WAS ENLARGED UPON A
RECOGNIZANCE AS PERMITTED UNDER OUR RULES.  RULE 45.  THE SUGGESTION
THAT THE CASE IS THEREFORE MOOT IS WITHOUT MERIT FOR THE REASONS STATED
IN SAMUELS' CASE. 

HOROWITZ REGISTERED PURSUANT TO THE SELECTIVE TRAINING AND SERVICE
ACT OF 1940, AS AMENDED, EARLY IN 1941 AND FILED A QUESTIONNAIRE
STATING HE WAS A COLLEGE STUDENT PREPARING FOR A CAREER AS A
PSYCHIATRIC SOCIAL WORKER.  AT THE TIME, HE ASKED FOR A DEFERMENT IN
INDUCTION UNTIL FEBRUARY, 1943, SAYING THAT "IF YOU TAKE ME NOW, YOU
PRACTICALLY NEGATE MY POSSIBILITIES TO ATTAIN THE POSITION I SEEK IN
LIFE, NAMELY, A PSYCHIATRIC SOCIAL WORKER."  SHORTLY AFTER HE WAS
PHYSICALLY EXAMINED AND FOUND QUALIFIED FOR MILITARY SERVICE, HE
ADVISED THE LOCAL BOARD THAT HE HAD BEEN ENROLLED IN THE RABBINICAL
SEMINARY OF AMERICA, A RECOGNIZED THEOLOGICAL SCHOOL.  ON JULY 1, 1941,
HE WAS CLASSIFIED I-A.  THE BOARD OF APPEAL LIKEWISE GAVE HIM THAT
CLASSIFICATION IN AUGUST, 1941. 

MEANWHILE, HE CLAIMED EXEMPTION UNDER SEC. 5(D) OF THE ACT.  THE
BASIS OF HIS CLAIM WAS THE REPRESENTATION THAT HE WAS A STUDENT IN A
RECOGNIZED THEOLOGICAL SCHOOL FOR RABBIS AND WAS PREPARING FOR THE
RABBINATE.  IN AN AFFIDAVIT HE STATED THAT HE HAD NOT DISCLOSED HIS
INTENTION TO BECOME A RABBI BECAUSE HE HAD NO "CONCRETE FACTS" TO
PRESENT, ONLY "HOPES."  IN NOVEMBER, 1941, THE LOCAL BOARD CLASSIFIED
HIM IV-D, WHICH CLASSIFICATION HE RETAINED UNTIL MAY, 1944.  IN 1942 HE
FILED AN OCCUPATIONAL QUESTIONNAIRE WITH THE LOCAL BOARD, STATING THAT
HE WAS TAKING A COURSE IN RABBINICAL STUDIES AT THE SEMINARY AND ALSO A
BACHELOR OF SOCIAL SCIENCE COURSE AT ANOTHER INSTITUTION WHICH HE HOPED
TO COMPLETE IN 1944.  HE LISTED HIMSELF AS A SOCIAL WORKER. 

IN APRIL, 1944, THE CITY DIRECTOR OF SELECTIVE SERVICE REVIEWED THE
FILE AND REQUESTED HOROWITZ TO APPEAR BEFORE AN ADVISORY THEOLOGICAL
PANEL.  HE APPEARED BEFORE A PANEL AND THERE WAS A HEARING.  THE PANEL
STATED THAT ALL STUDENTS IN THIS SEMINARY WERE NOT NECESSARILY
PREPARING FOR THE MINISTRY AND THAT EACH INDIVIDUAL CASE SHOULD BE
SEPARATELY APPRAISED.  FN1  IT CONCLUDED THAT HIS ATTENDANCE AT THE
SEMINARY HAD BEEN MOTIVATED BY A DESIRE TO SECURE A BASIS FOR EXEMPTION
UNDER THE ACT.  THIS WAS BASED ON HIS DECLARED INTENTION EARLY IN 1941
TO BE A SOCIAL WORKER, INCONSISTENCIES IN HIS EXPLANATION OF HIS
FAILURE TO REFER TO THE RABBINATE AT THAT TIME, HIS INDIFFERENT AND
UNSYSTEMATIC MANNER IN PREPARING FOR THAT PROFESSED OBJECTIVE, AND AN
APPRAISAL OF HIS RELIABILITY AND CANDOR.  THE TRANSCRIPT OF PROCEEDINGS
BEFORE THE PANEL AND LATER THE REPORT WERE TRANSMITTED TO THE LOCAL
BOARD BY THE OFFICE OF THE CITY DIRECTOR OF SELECTIVE SERVICE WITH A
REQUEST TO THE BOARD TO REOPEN AND RECONSIDER HIS CLASSIFICATION.  THE
REPORT MADE BY THE PANEL WAS NOT SIGNED.  MOREOVER, THE REPORT WAS
HEADED "CONFIDENTIAL STATEMENT FOR THE RECORD."  THE LOCAL BOARD WAS
ADVISED BY THE CITY DIRECTOR'S OFFICE THAT, WHILE IT SHOULD GIVE
CAREFUL CONSIDERATION TO THE RECOMMENDATION OF THE PANEL, DETERMINATION
OF THE CLASSIFICATION MUST BE MADE BY THE BOARD ITSELF OR BY AN APPEAL
AGENCY. 

HOROWITZ WAS IMMEDIATELY RECLASSIFIED AS I-A.  HE ASKED FOR A HEARING
WHICH WAS GRANTED.  IT APPEARS THAT THE PANEL WHICH INTERVIEWED HIM AND
RENDERED THE REPORT WAS COMPOSED OF THREE PROMINENT JEWISH LAYMEN BUT
NO RABBI.  WHETHER THAT WAS THE CAUSE DOES NOT APPEAR, BUT THE BOARD,
AS A RESULT OF THE HEARING, REFERRED THE FILE TO A RABBI FOR ANOTHER
ADVISORY RECOMMENDATION.  THE RABBI RECOMMENDED THAT HOROWITZ BE
CLASSIFIED IV-D.  THE LOCAL BOARD GAVE HIM THAT CLASSIFICATION IN JUNE,
1944.  IN AUGUST, 1944, THE LOCAL BOARD HELD ANOTHER HEARING.  HOROWITZ
WAS PRESENT AND WAS EXAMINED.  THE BOARD CONCLUDED THAT HE SHOULD BE IN
I-A AND SO CLASSIFIED HIM, STATING AS ITS REASON THAT HE BECAME A
STUDENT IN THE RABBINICAL SCHOOL AFTER HE HAD REGISTERED UNDER THE
ACT.  HE REQUESTED AND WAS GRANTED ANOTHER HEARING, AT WHICH HE
SUBMITTED ADDITIONAL EVIDENCE.  THE LOCAL BOARD REFUSED TO CHANGE THE
CLASSIFICATION.  ON APPEAL THE BOARD OF APPEAL CLASSIFIED HIM AS I-A. 

ON TWO SUBSEQUENT OCCASIONS HOROWITZ ASKED THAT HIS CLASSIFICATION BE
REOPENED AND SUBMITTED ADDITIONAL EVIDENCE.  THE BOARD WAS UNPERSUADED
AND REFUSED TO REOPEN THE CLASSIFICATION.  THE OFFICE OF THE CITY
DIRECTOR ADVISED THE BOARDS THAT THE PANEL WHICH INTERVIEWED HOROWITZ
WAS COMPOSED SOLELY OF LAYMEN AND THAT, IF BY VIRTUE OF THAT FACT THE
BOARD OF APPEAL DESIRED TO RECONSIDER THE CASE, TO INFORM THE OFFICE. 
BOTH THE LOCAL BOARD AND THE BOARD OF APPEAL REPLIED THAT THERE WAS NO
OCCASION FOR REOPENING THE CLASSIFICATION.  THE BOARD OF APPEAL STATED
THAT IT HAD "ONCE AGAIN UNANIMOUSLY AGREED THAT THE REGISTRANT'S STATUS
DOES NOT WARRANT A IV-D CLASSIFICATION."  EARLY IN 1945 HOROWITZ WAS
INDUCTED INTO THE ARMY. 

HOROWITZ RELIES UPON AFFIDAVITS AND STATEMENTS FROM VARIOUS PEOPLE
CONCERNING THE BONA FIDES OF HIS PROFESSED DESIRE TO BECOME A RABBI, ON
A STATEMENT MADE WHEN HE GRADUATED FROM THE PUBLIC SCHOOLS IN 1932 THAT
THAT WAS HIS AMBITION IN LIFE, ON THE FACT THAT HE STATED IN 1936 THAT
HIS FIRST VOCATIONAL CHOICE WAS THE RABBINATE, AND ON ALL OF HIS
SUBSEQUENT ACTIVITIES WHICH, HE ASSERTED, FITTED INTO THAT PATTERN.  ON
THE OTHER HAND, IT DOES APPEAR THAT IN 1937 HIS FIRST VOCATIONAL CHOICE
WAS TEACHING, HIS SECOND THE RABBINATE.  FURTHERMORE, AS ALREADY NOTED,
HIS PROFESSED OBJECTIVE STATED TO THE LOCAL BOARD EARLY IN 1941 WAS
SOCIAL WORK.  AND HE IN FACT ENTERED THE SEMINARY SHORTLY AFTER HE HAD
PASSED HIS PHYSICAL EXAMINATION AND QUALIFIED FOR MILITARY SERVICE. 
THESE CIRCUMSTANCES ALONE MAKE HIS CLAIM TO EXEMPTION COLORABLE. 
CERTAINLY WE CANNOT SAY THAT THE ACTION OF THE BOARD OF APPEAL IN
FINALLY CLASSIFYING HIM AS I-A WAS WITHOUT ANY SUPPORT IN THE
EVIDENCE. 

THE QUESTION REMAINS WHETHER THERE WAS ANYTHING IN THE ADMINISTRATIVE
PROCEDURE WHICH VITIATED HOROWITZ' CLASSIFICATION.  WHAT WE HAVE SAID
ABOUT THE USE OF A THEOLOGICAL PANEL AND THE RANGE OF ITS INQUIRY IN
EAGLES V. SAMUELS, SUPRA, NEED NOT BE REPEATED HERE.  THERE IS NOTHING
IN THE PRESENT CASE WHICH MAKES FOR A DIFFERENT RESULT.  WE CAN NO MORE
CONCLUDE HERE, THAN IN SAMUELS' CASE, THAT THE BOARD ABDICATED ITS
FUNCTION.  IT FIRST FOLLOWED THE PANEL'S RECOMMENDATION.  BUT ITS MIND
WAS NOT CLOSED, AS EVIDENCED BY THE FACT THAT IT LATER SOUGHT THE
ADVICE OF A RABBI AND FOLLOWED HIS RECOMMENDATION.  AND WHEN IT
RETURNED TO ITS EARLIER POSITION, IT PROCEEDED ON THE GROUND THAT THE
BASIC DEFECT IN HOROWITZ' CASE WAS THE SHIFT IN HIS POSITION IN 1941
AFTER HE HAD REGISTERED.  THE RECORD SHOWS INDECISION BY THE BOARD BUT
NO SUBSERVIENCE TO THE PANEL.  AS RESPECTS THE FACT THAT THE PANEL'S
REPORT WAS UNSIGNED, ONLY A WORD NEED BE ADDED.  HOROWITZ, LIKE
SAMUELS, APPEARED IN PERSON BEFORE THE PANEL AND SAW ITS MEMBERS FACE
TO FACE.  AT NO TIME DOES IT APPEAR THAT HE SOUGHT THE IDENTITY OF THE
MEMBERS AND WAS REFUSED THE INFORMATION. 

THE ESSENTIAL PROCEDURAL DIFFERENCES BETWEEN THIS CASE AND SAMUELS'
ARE TWO - IT APPEARS THAT THIS PANEL WAS COMPOSED ENTIRELY OF LAYMEN;
AND ITS REPORT WAS NOT ONLY UNSIGNED BUT MARKED CONFIDENTIAL FOR THE
FILE.  THE FIRST OBJECTION CARRIES LITTLE WEIGHT.  THESE LAYMEN WERE
PROMINENT CITIZENS OF THE JEWISH FAITH.  THERE IS NO SHOWING THAT THEY
WERE OF A SECT HOSTILE TO HOROWITZ.  THERE IS NOTHING TO IMPEACH THEIR
INTEGRITY OR TO SUGGEST THAT THEY WERE NOT QUALIFIED TO SERVE IN THE
EXPERT ROLE ASSIGNED TO THEM. 

THE FACT THAT THEIR REPORT WAS MARKED CONFIDENTIAL IS GIVEN GREAT
EMPHASIS.  IT IS ARGUED THAT ALTHOUGH THE USE OF A THEOLOGICAL PANEL
MAY BE AUTHORIZED, THERE IS NO WARRANT FOR CLOTHING ITS ACTION IN SUCH
SECRECY. 

THE REGULATIONS, INDEED, PRESCRIBE THAT NO INFORMATION IN A
REGISTRANT'S FILE SHALL BE CONFIDENTIAL AS TO HIM OR ANY ONE HAVING
WRITTEN AUTHORITY FROM HIM.  SECTION 605.32(A), 8 FED. REG. 2641, 9
FED. REG. 9190.  BUT THE DIFFICULTY HERE IS THAT IT IS NOT SHOWN THAT
THE PANEL'S REPORT WAS IN FACT TREATED AS CONFIDENTIAL BY THE LOCAL
BOARD.  IT IS NOT SHOWN THAT HOROWITZ SOUGHT AND WAS DENIED ACCESS TO
THE REPORT.  NOR IS IT SHOWN THAT WHEN HOROWITZ EXAMINED THE FILE THE
REPORT WAS NOT MADE AVAILABLE TO HIM.  IF THOSE WERE THE FACTS, WE DO
NOT DOUBT THAT HOROWITZ' COUNSEL WOULD HAVE ESTABLISHED THEM AT THE
HABEAS CORPUS HEARING.  WE FIND NO COMMAND TO THE LOCAL BOARD TO KEEP
THE REPORT CONFIDENTIAL.  WE CANNOT PRESUME THAT THE BOARD VIOLATED THE
REGULATIONS.  YET THAT IS IN EFFECT WHAT WE ARE ASKED TO HOLD. 
HOROWITZ, LIKE SAMUELS, POINTS TO POSSIBILITIES OF ABUSE IN THE USE OF
THE PANEL.  BUT LIKE SAMUELS HE FAILS TO ESTABLISH PREJUDICE IN HIS
CASE.  THE JUDGMENT BELOW MUST THEREFORE BE REVERSED. 

FN1  THE APPROACH OF THE PANEL TO THE QUESTION IS SHOWN AS FOLLOWS IN
ITS STATEMENT: 

"ORTHODOX TRADITION HAS ALWAYS ENCOURAGED ADVANCED STUDY OF TALMUDIC
LITERATURE, BOTH PRIVATELY AND AT ACADEMIES INSTITUTED FOR THAT
PURPOSE, IRRESPECTIVE OF THE SPECIFIC OCCUPATIONAL OBJECTIVES OF THOSE
ENGAGED IN SUCH STUDY, AND ALL COURSES OFFERED BY THESE ACADEMIES ARE
OPEN TO QUALIFIED STUDENTS WITHOUT REGARD TO THE INDIVIDUAL STUDENT'S
SPECIFIC INTENTION TO PREPARE FOR A CAREER OF SERVICE IN THE
RABBINATE. 

"THUS, A STUDENT ULTIMATELY INTENDING TO ENTER BUSINESS OR A
PROFESSION, OR SOME NON-RABBINIC ACTIVITY IN THE FIELD OF RELIGION, MAY
BE ENROLLED IN THE SAME COURSES ATTENDED BY OTHER STUDENTS WHO ARE
SPECIFICALLY CONCERNED WITH PREPARATION FOR THE RABBINATE.  IT IS,
THEREFORE, ESSENTIAL FOR PURPOSES OF SELECTIVE SERVICE CLASSIFICATION
TO DETERMINE IN EACH INDIVIDUAL CASE THE PURPOSE WHICH THE REGISTRANT
HAS IN MIND IN PURSUING HIS COURSE OF STUDY. 

"MOREOVER, THE FACT THAT THE RELIGIOUS TRADITION IN QUESTION DOES NOT
ATTEMPT TO DISTINGUISH BETWEEN THE SERIOUS STUDENT OF TALMUDIC
LITERATURE AND THE STUDENT PREPARING FOR A PROFESSIONAL CAREER IN THE
RABBINATE, TENDS TO MAKE IT EXTREMELY DIFFICULT FOR SCHOOL OFFICIALS,
MINISTERS, AND OTHERS IDENTIFIED WITH THAT TRADITION, TO HAVE AND
EXPRESS AN OBJECTIVE JUDGMENT IN SUCH MATTERS. 

"TO THE EXTENT THAT THE DISTINCTION IS UNDERSTOOD, THERE IS A
TENDENCY TO ACCEPT AT FACE VALUE ASSERTIONS MADE BY THE REGISTRANT AND
MEMBERS OF HIS FAMILY AND TO RESOLVE ANY DOUBT IN HIS FAVOR, WHERE IT
IS AT LEAST APPARENT THAT HE IS A SERIOUS AND PIOUS TALMUDIC STUDENT." 

..END :











LABOR BOARD V. TOWER CO., 329 U.S. 324 


NO. 60.  ARGUED NOVEMBER 21, 1946.  - DECIDED DECEMBER 23, 1946.  - 152
F.2D 275, REVERSED. 


A CONSENT ELECTION OF A COLLECTIVE BARGAINING AGENT UNDER THE NATIONAL
LABOR RELATIONS ACT WAS HELD PURSUANT TO AN AGREEMENT BETWEEN THE
EMPLOYER AND THE UNION PROVIDING THAT THE REGIONAL DIRECTOR OF THE
NATIONAL LABOR RELATIONS BOARD SHOULD SUPERVISE THE ELECTION AND THAT
HIS DETERMINATION ON ANY QUESTION OF ELIGIBILITY OF VOTERS SHOULD BE
FINAL.  THE EMPLOYER PROVIDED A LIST OF ELIGIBLE EMPLOYEES AND HAD
OBSERVERS AT THE POLLS WITH THE RIGHT TO CHALLENGE THE ELIGIBILITY OF
VOTERS.  AFTER THE UNION HAD BEEN ELECTED BY A CLOSE VOTE AND THE
RESULTS HAD BEEN ANNOUNCED, THE EMPLOYER SOUGHT TO CHALLENGE THE
ELIGIBILITY OF A VOTER INCLUDED IN THE LIST IT HAD FURNISHED AND WHOSE
ELIGIBILITY WAS UNCHALLENGED AT THE POLLS.  THIS, TOGETHER WITH A VOTE
CHALLENGED BY THE UNION AND NOT COUNTED, MIGHT HAVE CHANGED THE
RESULT.  THE REGIONAL DIRECTOR FOUND THAT THE EMPLOYER HAD WAIVED ITS
RIGHT TO CHALLENGE THE VOTE OR TO OBJECT TO THE ELECTION ON THIS GROUND
AND THAT THE UNION HAD RECEIVED A MAJORITY OF THE VALID VOTES CAST. 
THE EMPLOYER REFUSED TO BARGAIN WITH THE UNION ON THE GROUND THAT IT
HAD NOT BEEN VALIDLY ELECTED.  THE BOARD SUSTAINED THE REGIONAL
DIRECTOR'S FINDING AS BEING IN ACCORD WITH ITS ESTABLISHED POLICY AND
ORDERED THE EMPLOYER TO BARGAIN WITH THE UNION.  HELD: 

1.  THE BOARD'S ORDER IS SUSTAINED.  P. 335. 

2.  A PROPER APPLICATION OF THE RULE PROHIBITING POST-ELECTION
CHALLENGES, EVEN THOUGH THE RESULT OF THE ELECTION MIGHT HAVE BEEN
DIFFERENT HAD THE CHALLENGE BEEN MADE AND SUSTAINED, DID NOT DEPRIVE
THE BOARD OF JURISDICTION TO FIND THE EMPLOYER GUILTY OF AN UNFAIR
LABOR PRACTICE IN REFUSING TO BARGAIN WITH THE UNION.  P. 333. 

3.  THE RULE FORBIDDING THE ELIGIBILITY OF A VOTER TO BE CHALLENGED
AFTER THE VOTES HAVE BEEN CAST IS IN ACCORDANCE WITH THE NATIONAL LABOR
RELATIONS ACT AND THE PRINCIPLE OF MAJORITY RULE AND IS JUSTIFIED BY
PRACTICAL CONSIDERATIONS.  PP. 330-333. 

4.  THE FACT THAT THE EMPLOYER MAY HAVE BEEN HONESTLY MISTAKEN AS TO
THE ELIGIBILITY OF THE VOTER IS NO JUSTIFICATION FOR DISREGARDING THE
RULE.  P. 333. 

5.  A PROVISION IN THE AGREEMENT FOR THE ELECTION AS TO THE FILING OF
OBJECTIONS "TO THE CONDUCT OF THE BALLOT" AND "TO A DETERMINATION OF
REPRESENTATIVES BASED ON THE RESULTS THEREOF" WITHIN FIVE DAYS AFTER
ISSUANCE OF THE "TALLY OF BALLOTS" DID NOT CONSTITUTE A WAIVER OF THE
RULE, SINCE THERE IS A CLEAR DISTINCTION BETWEEN OBJECTIONS AND
CHALLENGES IN ELECTORAL PARLANCE.  P. 334. 

6.  IN THE ABSENCE OF EVIDENCE THAT THE REPRESENTATIVES OF THE BOARD
AND THE EMPLOYER DISCRIMINATED AGAINST ANTI-UNION EMPLOYEES IN
PREPARING THE ELIGIBILITY LIST OR IN RAISING TIMELY ELIGIBILITY ISSUES,
IT CANNOT BE SAID THAT THE INTERESTS OF ANTI-UNION EMPLOYEES WERE
INADEQUATELY REPRESENTED.  PP. 334-335. 

NATIONAL LABOR RELATIONS BOARD V. A.J. TOWER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

THE NATIONAL LABOR RELATIONS BOARD SUSTAINED THE VALIDITY OF THE
ELECTION OF A UNION AS A COLLECTIVE BARGAINING REPRESENTATIVE AND
ORDERED THE EMPLOYER TO BARGAIN WITH IT.  60 N.L.R.B. 1414.  THE
CIRCUIT COURT OF APPEALS SET ASIDE THE ORDER.  152 F.2D 275.  THIS
COURT GRANTED CERTIORARI.  328 U.S. 827.  REVERSED, P. 335. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE CONCERNS THE PROCEDURE USED IN ELECTIONS UNDER THE
NATIONAL LABOR RELATIONS ACT FN1  IN WHICH EMPLOYEES CHOOSE A STATUTORY
REPRESENTATIVE FOR PURPOSES OF COLLECTIVE BARGAINING.  SPECIFICALLY, WE
MUST DETERMINE THE PROPRIETY OF THE NATIONAL LABOR RELATIONS BOARD'S
REFUSAL TO ACCEPT AN EMPLOYER'S POST-ELECTION CHALLENGE TO THE
ELIGIBILITY OF A VOTER WHO PARTICIPATED IN A CONSENT ELECTION. 

THE RESPONDENT AND A UNION ENTERED INTO AN AGREEMENT TO CONDUCT AN
ELECTION BY SECRET BALLOT ON MAY 5, 1944, UNDER THE SUPERVISION OF THE
BOARD'S REGIONAL DIRECTOR, TO DETERMINE WHETHER THE EMPLOYEES AT
RESPONDENT'S ROXBURY PLANT IN THE UNIT DEFINED IN THE AGREEMENT DESIRED
TO BE REPRESENTED BY THE UNION.  THE AGREEMENT WAS APPROVED BY THE
REGIONAL DIRECTOR AND PROVIDED THAT THE ELECTION WAS TO BE HELD "IN
ACCORDANCE WITH THE NATIONAL LABOR RELATIONS ACT, THE BOARD'S RULES AND
REGULATIONS, AND THE CUSTOMARY PROCEDURES AND POLICIES OF THE BOARD." 

THE AGREEMENT SET FORTH THE QUALIFICATIONS FOR PARTICIPATION IN THE
ELECTION.  ONLY THOSE WHO APPEARED ON THE PAY-ROLL ON APRIL 21, 1944,
WERE ELIGIBLE; INCLUDED WERE THOSE EMPLOYEES WHO DID NOT WORK AT THE
TIME BECAUSE THEY WERE ILL, OR ON VACATION, OR TEMPORARILY LAID OFF, OR
IN THE ARMED FORCES.  THE RESPONDENT HAD THE DUTY OF FURNISHING THE
REGIONAL DIRECTOR WITH AN ACCURATE LIST OF THE ELIGIBLE VOTERS,
TOGETHER WITH A LIST OF THE INELIGIBLE EMPLOYEES.  FN2  THE LIST OF
ELIGIBLE VOTERS WAS DULY SUBMITTED ON MAY 1, 1944. 

THE AGREEMENT FURTHER PROVIDED THAT BOTH THE UNION AND THE RESPONDENT
COULD HAVE OBSERVERS AT THE POLLING PLACES TO ASSIST IN THE HANDLING OF
THE ELECTION, TO CHALLENGE THE ELIGIBILITY OF VOTERS AND TO VERIFY THE
TALLY.  IF CHALLENGES WERE MADE AND IF THEY WERE DETERMINATIVE OF THE
RESULTS OF THE ELECTION, THE REGIONAL DIRECTOR WAS TO INVESTIGATE THE
CHALLENGES AND ISSUE A REPORT THEREON.  ALL OBJECTIONS "TO THE CONDUCT
OF THE BALLOT" OR "TO A DETERMINATION OF REPRESENTATIVES BASED ON THE
RESULTS THEREOF" WERE TO BE FILED WITH THE REGIONAL DIRECTOR WITHIN
FIVE DAYS AFTER ISSUANCE OF THE "TALLY OF BALLOTS."  IF THE REGIONAL
DIRECTOR SUSTAINED THE OBJECTIONS, HE HAD THE POWER TO VOID THE RESULTS
AND ORDER A NEW ELECTION.  THE DETERMINATION OF THE REGIONAL DIRECTOR
WAS TO BE FINAL AND BINDING UPON ANY QUESTION, "INCLUDING QUESTIONS AS
TO THE ELIGIBILITY OF VOTERS, RAISED BY ANY PARTY HERETO RELATING IN
ANY MANNER TO THE ELECTION."  CF. ARTICLE III, SECS. 10 AND 12, OF THE
BOARD'S RULES AND REGULATIONS (SERIES 3, EFFECTIVE NOV. 26, 1943). 

THE BALLOTING TOOK PLACE ON MAY 5 IN ACCORDANCE WITH THIS AGREEMENT. 
AFTER THE BALLOTS WERE COUNTED, THE UNION AND THE RESPONDENT SIGNED A
"TALLY OF BALLOTS," IN WHICH THE REGIONAL DIRECTOR CERTIFIED THAT, OF
THE 230 VALID VOTES COUNTED, 116 WERE CAST FOR THE UNION AND 114
AGAINST IT, WITH ONE OTHER BALLOT BEING CHALLENGED BY THE UNION.  FN3
FOUR DAYS LATER, ON MAY 9, RESPONDENT'S COUNSEL WROTE THE REGIONAL
DIRECTOR THAT SUBSEQUENT TO THE ELECTION "IT CAME TO THE ATTENTION OF
THE MANAGEMENT OF THE COMPANY THAT MRS. JENNIE A. KANE, ONE OF THE
PERSONS WHO VOTED AT THE ELECTION, WAS NOT AT THE TIME AN EMPLOYEE OF
THE COMPANY."  FN4  THE LETTER EXPLAINED THAT MRS. KANE WAS EMPLOYED BY
RESPONDENT FROM MARCH 16, 1943, THROUGH MARCH 24, 1944, BUT THAT AFTER
THE LATTER DATE SHE HAD NEVER REPORTED AGAIN FOR WORK AND HAD NEVER
APPEARED AT THE PLANT EXCEPT FOR PURPOSES OF VOTING ON MAY 5.  IT WAS
ADMITTED THAT THE RESPONDENT, "NOT BEING ADVISED BY MRS. KANE OF ANY
INTENTION ON HER PART TO LEAVE THEIR EMPLOY, ASSUMED THAT SHE WAS ILL
AND CONTINUED HER AMONG THEIR LIST OF EMPLOYEES AND, THEREFORE, DID NOT
EXCLUDE HER FROM THE LIST OF EMPLOYEES THEY BELIEVED ELIGIBLE TO
VOTE."  THE LETTER ACCORDINGLY CHALLENGED MRS. KANE'S RIGHT TO VOTE, AS
WELL AS THE BALLOT CAST BY HER.  A HEARING WAS REQUESTED FOR THE
PURPOSE OF PASSING UPON THE ONE BALLOT CHALLENGED BY THE UNION.  IF
THAT CHALLENGE WERE NOT SUSTAINED AND THE BALLOT PROVED TO BE A VOTE
AGAINST THE UNION, MRS. KANE'S BALLOT WOULD BECOME MATERIAL TO THE
RESULT OF THE ELECTION; ON THAT CONDITION, THE RESPONDENT REQUESTED A
HEARING ON ITS CHALLENGE TO MRS. KANE'S VOTE. 

A HEARING ON THE MATTERS RAISED BY THIS LETTER WAS HELD BEFORE THE
REGIONAL DIRECTOR.  HE SUBSEQUENTLY MADE A REPORT IN WHICH HE FOUND
THAT RESPONDENT INCLUDED MRS. KANE'S NAME ON THE LIST OF ELIGIBLE
VOTERS SUBMITTED ON MAY 1 ON THE ASSUMPTION THAT SHE WAS ILL AND HAD
NOT QUIT HER JOB; THAT RESPONDENT MADE NO ATTEMPT BETWEEN MAY 1 AND MAY
5 TO REMOVE MRS. KANE'S NAME FROM THE LIST, ALTHOUGH PRIOR TO THE
ELECTION RESPONDENT RECEIVED BY MAIL A NOTICE OF MRS. KANE'S CLAIM FOR
UNEMPLOYMENT COMPENSATION; THAT RESPONDENT'S OBSERVERS AT THE POLLS HAD
NOT CHALLENGED MRS. KANE WHEN SHE VOTED IN THEIR PRESENCE; AND THAT
THESE OBSERVERS CERTIFIED BEFORE THE BALLOTS WERE COUNTED THAT THE
ELECTION HAD BEEN PROPERLY CONDUCTED.  THE REGIONAL DIRECTOR ALSO FOUND
THAT THE EVIDENCE WAS CONFLICTING AS TO MRS. KANE'S ACTUAL STATUS.  FN5
BUT HE CONCLUDED THAT UNDER THE CIRCUMSTANCES THE RESPONDENT HAD
WAIVED ITS RIGHT TO CHALLENGE HER VOTE OR TO OBJECT TO THE ELECTION ON
THIS GROUND.  THIS DETERMINATION MADE IT UNNECESSARY FOR HIM TO RULE ON
THE BALLOT PREVIOUSLY CHALLENGED BY THE UNION, SINCE IT COULD NOT
AFFECT THE RESULT.  HE THUS FOUND THAT THE UNION HAD RECEIVED A
MAJORITY OF THE VALID VOTES CAST AND WAS THE EXCLUSIVE REPRESENTATIVE
OF THE EMPLOYEES IN THE APPROPRIATE UNIT. 

THE RESPONDENT THEREAFTER REFUSED TO BARGAIN WITH THE UNION IN
QUESTION.  UPON A COMPLAINT ISSUED BY THE BOARD, THE RESPONDENT
ADMITTED ITS REFUSAL BUT DENIED THAT THE UNION HAD EVER BEEN DESIGNATED
BY A MAJORITY OF THE EMPLOYEES IN THE APPROPRIATE UNIT.  IT ASSERTED
THAT THE ELECTION OF MAY 5 WAS INCONCLUSIVE ON THE SUBJECT BECAUSE IF
MRS. KANE'S BALLOT WERE SUBTRACTED FROM THE UNION'S TOTAL AND IF THE
BALLOT CHALLENGED BY THE UNION WERE OPENED UPON OVERRULING THE
CHALLENGE AND PROVED TO BE AGAINST THE UNION, THE OUTCOME OF THE
ELECTION WOULD BE A TIE VOTE.  THE BOARD, AFTER THE USUAL PROCEEDINGS,
HELD THAT IT WOULD NOT DISTURB THE RULINGS OF A REGIONAL DIRECTOR ON
QUESTIONS ARISING OUT OF A CONSENT ELECTION "UNLESS SUCH RULINGS APPEAR
TO BE UNSUPPORTED BY SUBSTANTIAL EVIDENCE OR ARE ARBITRARY OR
CAPRICIOUS" AND THAT NO SUCH GROUNDS FOR DISTURBING THE RULING WERE
PRESENT IN THE INSTANT CASE.  AS AN ALTERNATIVE GROUND FOR ITS ACTION,
THE BOARD HELD THAT THE REGIONAL DIRECTOR'S REFUSAL UNDER THE
CIRCUMSTANCES TO PERMIT AN ATTACK ON MRS. KANE'S STATUS AS A VOTER
AFTER THE RESULTS OF THE ELECTION HAD BEEN ANNOUNCED "IS IN COMPLETE
ACCORD WITH THE ESTABLISHED PRINCIPLES AND POLICY OF THE BOARD" - WHICH
EXCLUDED POST-ELECTION CHALLENGES "BECAUSE OF OUR BELIEF THAT OTHERWISE
AN ELECTION COULD BE CONVERTED FROM A DEFINITIVE RESOLUTION OF
PREFERENCE INTO A PROTRACTED RESOLUTION OF OBJECTIONS DISREGARDED OR
SUPPRESSED AGAINST THE CONTINGENCY OF AN ADVERSE RESULT."  SEE ALSO
MATTER OF NORRIS, INC., 63 N.L.R.B. 502, 512.  THE BOARD ACCORDINGLY
ORDERED RESPONDENT TO CEASE AND DESIST FROM ITS UNFAIR LABOR PRACTICE
AND TO TAKE THE AFFIRMATIVE ACTION OF BARGAINING COLLECTIVELY WITH THE
UNION.  60 N.L.R.B. 1414. 

THE FIRST CIRCUIT COURT OF APPEALS, HOWEVER, SET ASIDE THE BOARD'S
ORDER.  152 F.2D 275.  IT CONSTRUED THE ACT AS MAKING IT A
JURISDICTIONAL PREREQUISITE TO A DETERMINATION THAT AN EMPLOYER HAS
COMMITTED THE UNFAIR LABOR PRACTICE OF REFUSING TO BARGAIN COLLECTIVELY
THAT THE UNION WITH WHICH HE HAS REFUSED TO DEAL SHOULD HAVE BEEN
CHOSEN BY A MAJORITY OF THOSE VOTING WHO WERE IN FACT EMPLOYEES.  IT
HELD THAT SINCE THE VOTE CHALLENGED BY THE UNION MAY HAVE BEEN CAST
AGAINST IT AND SINCE MRS. KANE WAS NOT FOUND TO HAVE BEEN AN EMPLOYEE
ON THE CRUCIAL DATE, THERE MAY HAVE BEEN A TIE VOTE AND THE BOARD WAS
WITHOUT JURISDICTION TO FIND THE RESPONDENT GUILTY OF A VIOLATION OF
SEC. 8(5).  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE
MATTER IN THE ADMINISTRATION OF THE ACT AND BECAUSE OF A CONFLICT
BETWEEN THE RESULT BELOW AND THAT REACHED BY THE SIXTH CIRCUIT COURT OF
APPEALS IN LABOR BOARD V. CAPITOL GREYHOUND LINES, 140 F.2D 754. 

AS WE HAVE NOTED BEFORE, CONGRESS HAS ENTRUSTED THE BOARD WITH A WIDE
DEGREE OF DISCRETION IN ESTABLISHING THE PROCEDURE AND SAFEGUARDS
NECESSARY TO INSURE THE FAIR AND FREE CHOICE OF BARGAINING
REPRESENTATIVES BY EMPLOYEES.  SOUTHERN S.S. CO. V. LABOR BOARD, 316
U.S. 31, 37; LABOR BOARD V. WATERMAN S.S. CO., 309 U.S. 206, 226; LABOR
BOARD V. FALK CORP., 308 U.S. 453, 458.  SECTION 9(C) OF THE ACT
AUTHORIZES THE BOARD TO "TAKE A SECRET BALLOT OF EMPLOYEES, OR UTILIZE
ANY OTHER SUITABLE METHOD TO ASCERTAIN SUCH REPRESENTATIVES."  IN
CARRYING OUT THIS TASK, OF COURSE, THE BOARD MUST ACT SO AS TO GIVE
EFFECT TO THE PRINCIPLE OF MAJORITY RULE SET FORTH IN SEC. 9(A), A RULE
THAT "IS SANCTIONED BY OUR GOVERNMENTAL PRACTICES, BY BUSINESS
PROCEDURE, AND BY THE WHOLE PHILOSOPHY OF DEMOCRATIC INSTITUTIONS."  S.
REP. NO. 573, 74TH CONG., 1ST SESS., P. 13.  IT IS WITHIN THIS
DEMOCRATIC FRAMEWORK THAT THE BOARD MUST ADOPT POLICIES AND PROMULGATE
RULES AND REGULATIONS IN ORDER THAT EMPLOYEES' VOTES MAY BE RECORDED
ACCURATELY, EFFICIENTLY AND SPEEDILY. 

THE PRINCIPLE OF MAJORITY RULE, HOWEVER, DOES NOT FORECLOSE PRACTICAL
ADJUSTMENTS DESIGNED TO PROTECT THE ELECTION MACHINERY FROM THE EVER
PRESENT DANGERS OF ABUSE AND FRAUD.  INDEED, UNLESS SUCH ADJUSTMENTS
ARE MADE, THE DEMOCRATIC PROCESS MAY BE PERVERTED AND THE ELECTION MAY
FAIL TO REFLECT THE WILL OF THE MAJORITY OF THE ELECTORATE.  ONE OF THE
COMMONEST PROTECTIVE DEVICES IS TO REQUIRE THAT CHALLENGES TO THE
ELIGIBILITY OF VOTERS BE MADE PRIOR TO THE ACTUAL CASTING OF BALLOTS,
SO THAT ALL UNCONTESTED VOTES ARE GIVEN ABSOLUTE FINALITY.  IN
POLITICAL ELECTIONS, THIS DEVICE OFTEN INVOLVES REGISTRATION LISTS
WHICH ARE CLOSED SOME TIME PRIOR TO ELECTION DAY; ALL CHALLENGES AS TO
REGISTRANTS MUST BE MADE DURING THE INTERVENING PERIOD OR AT THE
POLLS.  THEREAFTER IT IS TOO LATE.  THE FACT THAT CUTTING OFF THE RIGHT
TO CHALLENGE CONCEIVABLY MAY RESULT IN THE COUNTING OF SOME INELIGIBLE
VOTES IS THOUGHT TO BE FAR OUTWEIGHED BY THE DANGERS ATTENDANT UPON THE
ALLOWANCE OF INDISCRIMINATE CHALLENGES AFTER THE ELECTION.  TO PERMIT
SUCH CHALLENGES, IT IS SAID, WOULD INVADE THE SECRECY OF THE BALLOT,
DESTROY THE FINALITY OF THE ELECTION RESULT, INVITE UNWARRANTED AND
DILATORY CLAIMS BY DEFEATED CANDIDATES AND "KEEP PERPETUALLY BEFORE THE
COURTS THE SAME EXCITEMENTS, STRIFES, AND ANIMOSITIES WHICH
CHARACTERIZE THE HUSTINGS, AND WHICH OUGHT, FOR THE PEACE OF THE
COMMUNITY, AND THE SAFETY AND STABILITY OF OUR INSTITUTIONS, TO
TERMINATE WITH THE CLOSE OF THE POLLS."  COOLEY, CONSTITUTIONAL
LIMITATIONS (8TH ED., 1927), P. 1416. 

LONG EXPERIENCE HAS DEMONSTRATED THE FAIRNESS AND EFFICACIOUSNESS OF
THE GENERAL RULE THAT ONCE A BALLOT HAS BEEN CAST WITHOUT CHALLENGE AND
ITS IDENTITY HAS BEEN LOST, ITS VALIDITY CANNOT LATER BE CHALLENGED. 
THIS RULE IS UNIVERSALLY RECOGNIZED AS CONSISTENT WITH THE DEMOCRATIC
PROCESS.  AND IT IS GENERALLY FOLLOWED IN CORPORATE ELECTIONS.  THE
BOARD'S ADOPTION OF THE RULE IN ELECTIONS UNDER THE NATIONAL LABOR
RELATIONS ACT IS THEREFORE IN ACCORD WITH THE PRINCIPLES WHICH CONGRESS
INDICATED SHOULD BE USED IN SECURING THE FAIR AND FREE CHOICE OF
COLLECTIVE BARGAINING REPRESENTATIVES. 

MOREOVER, THE RULE IN QUESTION IS ONE THAT IS PECULIARLY APPROPRIATE
TO THE SITUATIONS CONFRONTING THE BOARD IN THESE ELECTIONS.  IN AN
ATMOSPHERE THAT MAY BE CHARGED WITH ANIMOSITY, POST-ELECTION CHALLENGES
WOULD TEMPT A LOSING UNION OR AN EMPLOYER TO MAKE UNDUE ATTACKS ON THE
ELIGIBILITY OF VOTERS SO AS TO DELAY THE FINALITY AND STATUTORY EFFECT
OF THE ELECTION RESULTS.  SUCH CHALLENGES WOULD ALSO EXTEND AN
OPPORTUNITY FOR THE INCLUSION OF INELIGIBLE PRO-UNION OR ANTI-UNION MEN
ON THE PAY-ROLL LIST IN THE HOPE THAT THEY MIGHT ESCAPE CHALLENGE
BEFORE VOTING, THEREAFTER GIVING RISE TO A CHARGE THAT THE ELECTION WAS
VOID BECAUSE OF THEIR INELIGIBILITY AND THE POSSIBILITY THAT THEY HAD
VOTED WITH THE MAJORITY AND WERE A DECISIVE FACTOR.  THE PRIVACY OF THE
VOTING PROCESS, WHICH IS OF GREAT IMPORTANCE IN THE INDUSTRIAL WORLD,
WOULD FREQUENTLY BE DESTROYED BY POST-ELECTION CHALLENGES.  AND VOTERS
WOULD OFTEN INCUR UNION OR EMPLOYER DISFAVOR THROUGH THEIR REACTION TO
THE INQUIRIES. 

WE ARE UNABLE TO SAY, THEREFORE, THAT THE BOARD'S PROHIBITION OF POST
ELECTION CHALLENGES IS WITHOUT JUSTIFICATION IN LAW OR IN REASON.  IT
GIVES A DESIRABLE AND NECESSARY FINALITY TO ELECTIONS, YET AFFORDS ALL
INTERESTED PARTIES A REASONABLE PERIOD IN WHICH TO CHALLENGE THE
ELIGIBILITY OF ANY VOTER.  AND AN EXCEPTION TO THE RULE IS RECOGNIZED
WHERE THE BOARD'S AGENTS OR THE PARTIES BENEFITING FROM THE BOARD'S
REFUSAL TO ENTERTAIN THE ISSUE KNOW OF THE VOTER'S INELIGIBILITY AND
SUPPRESS THE FACTS.  FN6  THE BOARD THUS APPEARS TO APPLY THE
PROHIBITION FAIRLY AND EQUITABLY IN LIGHT OF THE REALITIES INVOLVED. 
THE RELIANCE OF THE COURT BELOW UPON THE ASSERTED JURISDICTIONAL
REQUIREMENT WAS MISPLACED.  IT IS TRUE THAT IT IS AN UNFAIR LABOR
PRACTICE FOR AN EMPLOYER TO REFUSE TO BARGAIN WITH A UNION ONLY IF THAT
UNION WAS CHOSEN BY A MAJORITY OF THE VOTING EMPLOYEES.  BUT THE
DETERMINATION OF WHETHER A MAJORITY IN FACT VOTED FOR THE UNION MUST BE
MADE IN ACCORDANCE WITH SUCH FORMAL RULES OF PROCEDURE AS THE BOARD MAY
FIND NECESSARY TO ADOPT IN THE SOUND EXERCISE OF ITS DISCRETION.  THE
RULE PROHIBITING POST-ELECTION CHALLENGES IS ONE OF THOSE RULES.  WHEN
IT IS APPLIED PROPERLY, IT CANNOT DEPRIVE THE BOARD OF JURISDICTION TO
FIND AN UNLAWFUL FAILURE TO BARGAIN COLLECTIVELY.  THAT IS TRUE EVEN
WHERE IT SUBSEQUENTLY IS ASCERTAINABLE THAT SOME OF THE VOTES CAST WERE
IN FACT INELIGIBLE AND THAT THE RESULT OF THE ELECTION MIGHT HAVE BEEN
DIFFERENT HAD THE TRUTH PREVIOUSLY BEEN KNOWN.  THE RULE DOES NOT
PRETEND TO BE AN ABSOLUTE GUARANTEE THAT ONLY THOSE VOTES WILL BE
COUNTED WHICH ARE IN FACT ELIGIBLE.  IT IS SIMPLY A JUSTIFIABLE AND
REASONABLE ADJUSTMENT OF THE DEMOCRATIC PROCESS. 

THERE IS NO BASIS IN THE INSTANT CASE FOR DISREGARDING THE BOARD'S
POLICY IN THIS RESPECT.  THE FACT THAT THE RESPONDENT MAY HAVE BEEN
HONESTLY MISTAKEN AS TO THE STATUS OF MRS. KANE HAS NO RELEVANCE
WHATEVER TO THE JUSTIFICATION FOR THE USE OF THE POLICY.  AND NOTHING
IN THE CONSENT AGREEMENT CONSTITUTED A WAIVER OF THE POLICY BY THE
BOARD.  ON THE CONTRARY, THE AGREEMENT EXPRESSLY STATED THAT THE
ELECTION WAS TO BE HELD IN ACCORDANCE WITH "THE CUSTOMARY PROCEDURES
AND POLICIES OF THE BOARD," WHICH WOULD INCLUDE THE POLICY PROHIBITING
POST-ELECTION CHALLENGES.  THE PROVISION AS TO THE FILING OF OBJECTIONS
"TO THE CONDUCT OF THE BALLOT" AND "TO A DETERMINATION OF
REPRESENTATIVES BASED ON THE RESULTS THEREOF" WITHIN FIVE DAYS AFTER
ISSUANCE OF THE "TALLY OF BALLOTS," A PROVISION WHICH WAS QUITE
SEPARATE FROM THAT RELATING TO CHALLENGES, OBVIOUSLY HAS NO APPLICATION
HERE.  OBJECTIONS AND CHALLENGES ARE TWO DIFFERENT THINGS IN ELECTORAL
PARLANCE.  OBJECTIONS RELATE TO THE WORKING OF THE ELECTION MECHANISM
AND TO THE PROCESS OF COUNTING THE BALLOTS ACCURATELY AND FAIRLY. 
CHALLENGES, ON THE OTHER HAND, CONCERN THE ELIGIBILITY OF PROSPECTIVE
VOTERS.  THE BOARD USES THIS CLEAR DISTINCTION AS A MATTER OF POLICY
AND WE ARE NOT FREE TO DISREGARD IT.  FN7 

NEITHER THE RECORD IN THIS CASE NOR THE PAST HISTORY OF THE POLICY
AGAINST POST-ELECTION CHALLENGES JUSTIFIES AN ASSUMPTION THAT THE
INTERESTS OF THE ANTI-UNION EMPLOYEES IN THIS ELECTION WERE
INADEQUATELY PROTECTED.  DUE NOTICE OF THE MANNER AND CONDUCT OF THE
ELECTION WAS GIVEN TO ALL EMPLOYEES; AND, DESPITE THE LACK OF ANY
AFFIRMATIVE PROVISIONS IN THE CONSENT AGREEMENT, THERE WAS NO
INDICATION THAT ANY OF THE EMPLOYEES WERE PROHIBITED FROM EXAMINING THE
ELIGIBILITY LIST OR FROM CHALLENGING ANY PROSPECTIVE VOTER.  NOR WAS
THERE COMPETENT EVIDENCE THAT ANY ANTI-UNION EMPLOYEE MADE ANY
OBJECTION, EITHER BEFORE OR AFTER THE ELECTION, TO THE PROCEDURE
ADOPTED OR TO THE CASTING OF ANY BALLOTS.  FN8  MOREOVER, THE
REPRESENTATIVES OF THE BOARD, AS WELL AS THOSE OF THE RESPONDENT, WERE
BOUND TO PERFORM THEIR ELECTORAL FUNCTIONS ON BEHALF OF ALL EMPLOYEES,
INCLUDING THOSE WITH ANTI-UNION SENTIMENTS.  IN THE ABSENCE OF ANY
EVIDENCE THAT SUCH REPRESENTATIVES DISCRIMINATED AGAINST THE ANTI-UNION
EMPLOYEES IN PREPARING THE ELIGIBILITY LIST OR IN RAISING TIMELY
ELIGIBILITY ISSUES, WE CANNOT SAY THAT THE INTERESTS OF THOSE EMPLOYEES
WERE INADEQUATELY REPRESENTED. 

SINCE WE REST OUR DECISION SOLELY ON THE PROPRIETY OF THE BOARD'S
POLICY AGAINST POST-ELECTION CHALLENGES, IT IS UNNECESSARY TO DISCUSS
THE EFFECT TO BE GIVEN BY THE BOARD TO THE REGIONAL DIRECTOR'S RULING
THAT THE RESPONDENT WAIVED ITS RIGHT TO CHALLENGE MRS. KANE'S VOTE OR
THE EFFECT TO BE GIVEN TO THE TERMS OF THE CONSENT ELECTION AGREEMENT
APART FROM THE GENERAL POLICY. 

IT FOLLOWS THAT THE COURT BELOW ERRED IN REFUSING TO ENFORCE THE
BOARD'S ORDER IN FULL.  REVERSED. 

FN1  49 STAT. 449, 29 U.S.C. SEC. 151, ET SEQ. 

FN2  AMONG THE INELIGIBLE PERSONS WERE THOSE WHO HAD QUIT OR BEEN
DISCHARGED FOR CAUSE AND HAD NOT BEEN REHIRED OR REINSTATED PRIOR TO
THE DATE OF THE ELECTION. 

FN3  IT WAS UNNECESSARY TO RULE ON THE CHALLENGED BALLOT SINCE IT
COULD NOT AFFECT THE RESULT OF THE ELECTION, EVEN THOUGH THE BALLOT
PROVED TO BE AGAINST THE UNION. 

FN4 THE LETTER RECITED THAT "IT HAS NOW COME TO THEIR ATTENTION,
HOWEVER, THAT ON APRIL 28, 1944, MRS. KANE FILED WITH THE DIVISION OF
EMPLOYMENT SECURITY OF THE COMMONWEALTH OF MASSACHUSETTS A CLAIM FOR
UNEMPLOYMENT BENEFITS STATING, IN CONNECTION WITH THAT CLAIM, THAT SHE
HAD LEFT THE EMPLOY OF THE A.J. TOWER COMPANY IN MARCH, 1944, AND THAT
HER REASON FOR LEAVING WAS THAT SHE 'COULD NOT CONTINUE TO DO HEAVY
WORK OF CARRYING BUNDLES WHICH WAS PART OF HER JOB.'  THE COMPANY HAS
ALSO LEARNED THAT ON THE SAME DAY, APRIL 28, 1944, MRS. KANE VISITED
THE UNITED STATES EMPLOYMENT OFFICE AND WAS PLACED ON ITS LIST OF
PERSONS AVAILABLE FOR EMPLOYMENT." 

FN5  AN AGENT OF THE BOARD INTERVIEWED MRS. KANE AND WAS TOLD BY HER
THAT:  "ON APRIL 28, 1944, I APPLIED FOR UNEMPLOYMENT COMPENSATION
BENEFITS, THINKING I WAS ENTITLED TO SUCH BECAUSE OF MY ILLNESS.  AT NO
TIME, PRIOR OR SINCE, HAVE I CONSIDERED MYSELF NOT AN EMPLOYEE OF THE
A.J. TOWER CO.  I HAVE NEVER REQUESTED MY RELEASE OF THE A.J. TOWER CO.
AND IN FACT I INTEND TO RETURN TO THE COMPANY WHEN I HAVE REGAINED MY
STRENGTH.  I DID NOT THINK THAT MY APPLICATION FOR UNEMPLOYMENT
BENEFITS WOULD BE CONSIDERED A TERMINATION FROM THE COMPANY....  ON MAY
5, 1944, WHEN I PRESENTED MYSELF AT THE ELECTION POLLS AT THE A.J.
TOWER CO., I CONSIDERED MYSELF AN EMPLOYEE OF THE COMPANY AND THEREFORE
ENTITLED TO CAST A BALLOT.  I STILL CONSIDER MYSELF AN EMPLOYEE OF THE
A.J. TOWER CO." 

BUT THE REGIONAL DIRECTOR POINTED OUT THAT, DESPITE THIS STATEMENT,
SUBSEQUENT INVESTIGATION CONFIRMED THE FACT THAT MRS. KANE ADVISED THE
DIVISION OF EMPLOYMENT SECURITY ON APRIL 28, 1944, THAT SHE HAD LEFT
HER EMPLOYMENT WITH THE RESPONDENT IN MARCH BECAUSE OF THE HEAVY WORK
IN CARRYING BUNDLES.  SEE NOTE 4, SUPRA. 

FN6  SEE MATTER OF HALE, 62 N.L.R.B. 1393; MATTER OF BEGGS & COBB,
INC., 62 N.L.R.B. 193. 

FN7  "THE BOARD FOLLOWS A POLICY OF DIFFERENTIATING BETWEEN
OBJECTIONS TO THE CONDUCT OF AN ELECTION AND CHALLENGES (TO) THE
ELIGIBILITY OF VOTERS AND IT DOES NOT ORDINARILY PERMIT CHALLENGES
UNDER THE GUISE OF OBJECTIONS AFTER THE ELECTION."  MATTER OF NORRIS,
INC., 63 N.L.R.B. 502, 512.  CF. MATTER OF GREAT LAKES STEEL
CORPORATION, 15 N.L.R.B. 510. 

FN8  THE RESPONDENT'S FACTORY SUPERINTENDENT TESTIFIED THAT AN
UNIDENTIFIED EMPLOYEE CAME TO HIM AND "OBJECTED TO THE VOTE OF THIS
JENNIE KANE" SEVERAL DAYS AFTER THE ELECTION AND EVEN LONGER AFTER THE
RECEIPT BY RESPONDENT OF THE NOTICE OF MRS. KANE'S UNEMPLOYMENT
COMPENSATION CLAIM, WHICH HAD BEEN MAILED TO RESPONDENT BEFORE THE
ELECTION.  THIS TESTIMONY WAS ADMITTED MERELY TO SHOW "HOW THE COMPANY
BECAME INTERESTED IN THE QUESTION" OF MRS. KANE'S ELIGIBILITY.  THE
BOARD, OF COURSE, WAS NOT COMPELLED TO ACCEPT THIS TESTIMONY AS PROOF
OF AN OBJECTION TO MRS. KANE'S VOTE BY AN ANTI-UNION EMPLOYEE OR AS AN
INDICATION THAT THE INTERESTS OF ANTI-UNION EMPLOYEES MAY HAVE BEEN
INADEQUATELY REPRESENTED. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON, DISSENTING. 

IF THE ONLY INTERESTS AFFECTED WERE THE COMPLAINING EMPLOYER AND THE
VICTORIOUS UNION, I SHOULD AGREE WITH THE COURT'S DECISION.  BUT THERE
IS A THIRD AND, AS USUAL, A FORGOTTEN INTEREST HERE - THOSE EMPLOYEES
WHO DID NOT WANT TO BE REPRESENTED BY THE UNION. 

THE ELECTION WAS HELD BY AGREEMENT BETWEEN THE EMPLOYER AND THE UNION
WHICH WAS SEEKING TO ORGANIZE THE PLANT.  THE COMPANY WAS TO FURNISH A
LIST OF ELIGIBLE VOTERS.  THE COMPANY AND THE UNION WERE EACH TO HAVE
OBSERVERS ATTEND, WITH THE RIGHT TO CHALLENGE THE VOTERS.  THE
AGREEMENT DID NOT GIVE ANTI-ORGANIZATION EMPLOYEES EITHER OBSERVERS OR
THE RIGHT TO CHALLENGE.  THE CERTIFIED RESULT OF 116 UNION AGAINST 114
ANTI-UNION VOTES WAS REACHED BY NOT COUNTING A BALLOT WHICH THE UNION
CHALLENGED AND BY COUNTING THE BALLOT WHICH THE COMPANY NOW POINTS OUT
WAS PROBABLY INVALID.  MRS. KANE'S VOTE, NO MATTER WHETHER VALID OR
INVALID, IS THUS ALLOWED TO DECIDE THE ELECTION. 

IT IS IN EVIDENCE AND UNDISPUTED THAT, AFTER THE ELECTION AN EMPLOYEE
- PRESUMABLY ANTI-UNION, FROM THE CIRCUMSTANCE THAT HE WAS OBJECTING -
RAISED THE QUESTION THAT MRS. KANE, WHO WAS CARRIED ON THE COMPANY'S
ELIGIBLE LIST BECAUSE THE COMPANY BELIEVED SHE WAS ABSENT FOR ILLNESS,
HAD, IN FACT, LEFT THE EMPLOY OF THE COMPANY WITH NO INTENTION TO
RETURN.  IF THAT IS TRUE, SHE WAS NOT A QUALIFIED VOTER. 

BUT BECAUSE THERE WAS NO CHALLENGE AT THE TIME HER BALLOT WAS CAST,
THE COURT HOLDS THERE CAN BE NO INQUIRY INTO ITS VALIDITY.  COMPARISON
WITH THE PRACTICE AT GENERAL PUBLIC ELECTIONS IS SPECIOUS, FOR IN THOSE
ELECTIONS EVERY CITIZEN HAS A RIGHT OF CHALLENGE AND REGISTRATION LISTS
USUALLY ARE MADE UP AND AVAILABLE IN ADVANCE.  NO COMPARABLE SAFEGUARDS
FOR THE EMPLOYEES OPPOSED TO THE UNION APPEAR TO EXIST HERE, THOUGH
BOTH THE EMPLOYER AND THE UNION WERE PROTECTED. 

THE COURT TAKES THE POSITION THAT ALTHOUGH EVERY OTHER INTEREST HAS
AFFIRMATIVE PROTECTION, THERE IS NO NECESSITY FOR SIMILAR AFFIRMATIVE
PROTECTION TO THE ANTI-UNION EMPLOYEES.  DESPITE THE FACT THAT BOTH OF
THE CONTRACTING PARTIES WERE CAREFUL TO PROVIDE SUCH PROTECTION FOR
THEMSELVES, THE COURT ASSUMES IT IS UNNECESSARY FOR THE THIRD
INTEREST.  THE COURT SAYS THAT, IN THE ABSENCE OF EVIDENCE, IT WILL
ASSUME THAT SUCH INTERESTS WERE ADEQUATELY REPRESENTED, AT THE SAME
TIME CLOSING THE DOOR TO HEARING EVIDENCE AS TO WHETHER THOSE INTERESTS
WERE PREJUDICED UNLESS THOSE WHO ARE DENIED AFFIRMATIVE REPRESENTATION
OR CHALLENGE RIGHTS SHOULD HAVE MADE AFFIRMATIVE OBJECTION BEFORE THE
WRONG WAS CONSUMMATED BY CASTING THE ILLEGAL BALLOT.  AND, OF COURSE,
THE MEMBERS OF SUCH A MINORITY HAVE NO STANDING TO BRING THEIR PROBLEMS
EITHER TO THE BOARD OR TO THE COURT.  WE HEAR OF THEIR GRIEVANCE, IF AT
ALL, ONLY THROUGH ITS BEING IDENTICAL WITH SOME COMPLAINT WHICH THE
EMPLOYER RAISES. 

THE COURT FEARS THAT TO PERMIT INQUIRY INTO THE VALIDITY OF MRS.
KANE'S VOTE WOULD "EXTEND AN OPPORTUNITY FOR THE INCLUSION OF
INELIGIBLE PRO-UNION OR ANTI-UNION MEN ON THE PAY-ROLL LIST" WHO WOULD
BE CHALLENGED AFTER THE ELECTION IN THE HOPE OF VOIDING AN UNWANTED
RESULT.  OF COURSE, THERE ARE OPPORTUNITIES FOR MANIPULATION OF SUCH A
LIST, FOR COLLUSION BETWEEN EMPLOYER AND FAVORED GROUPS, FOR FRAUD, AND
FOR HONEST MISTAKES. 

BUT IF THE COURT IS CONCERNED TO KEEP THE ELECTIONS PURE, WHY CLOSE
THE DOOR TO PROOF OF SUCH CORRUPTION OR MISTAKE WHEN IT OPERATES
AGAINST AN ANTI-UNION GROUP, BECAUSE IT HAS NOT BEEN CHALLENGED BY ONE
OF THE PARTIES TO IT: TO WIT, THE EMPLOYER?  IN THE USUAL ELECTION, IT
MAY BE DESIRABLE TO PUT AN END TO CHALLENGES AT THE TIME WHEN THE
BALLOTS BECOME INTERMINGLED AND INDISTINGUISHABLE.  BUT TO JUSTIFY
CUTTING OFF INQUIRY, IT SHOULD APPEAR THAT ALL PERSONS INTERESTED IN
THE ELECTION HAVE HAD ADEQUATE OPPORTUNITY TO QUESTION THE BALLOTS
CAST.  AS LONG AS NO SUCH PROVISION IS MADE FOR EMPLOYEES WHO ARE
OPPOSED TO ORGANIZATION, I WOULD PROTECT THEIR RIGHTS BY ALLOWING POST
ELECTION CHALLENGES ON SUCH GROUNDS AS ARE URGED HERE. 

OF COURSE THE PROTECTION THIS GIVES IS FAR FROM SATISFACTORY.  THE
CHALLENGE MUST BE INITIATED BY THE PARTIES THE BOARD RECOGNIZES, THE
EMPLOYER OR THE UNION.  BUT THERE WILL BE SOME INSTANCES IN WHICH THEIR
INTEREST COINCIDES WITH THAT OF THE ANTI-UNION EMPLOYEES.  ON THE OTHER
HAND, I CAN SCARCELY THINK OF A MORE PERFECT DEVICE FOR ENCOURAGING
UNSCRUPULOUSNESS, THAN TO INVEST IT WITH FINALITY AGAINST ALL INQUIRY
EITHER BY THE BOARD OR THE COURTS.  HERE HALF THE EMPLOYEES ARE FORCED
TO ACCEPT UNION REPRESENTATION AS THE RESULT OF AN ELECTION IN WHICH
THEY WERE NOT ALLOWED TO PROTECT THE BALLOT, AND THOSE WHO WERE, FAILED
TO DO SO.  IF I REALLY WANTED TO DISCOURAGE FRAUD, COLLUSION, AND
MISTAKES, AND PROTECT THE INTEGRITY OF ELECTIONS AND THE RIGHTS OF BOTH
MINORITY AND MAJORITY, I SHOULD HOLD THAT SUCH ELECTIONS CAN BE LOOKED
INTO WHENEVER IRREGULARITY APPEARS TO HAVE AFFECTED THE RESULT. 
..END :








GIBSON V. UNITED STATES, 329 U.S. 338 


ARGUED JANUARY 2, 3, 1946.  REARGUED OCTOBER 23, 1946.  - DECIDED
DECEMBER 23, 1946.  - 149 F.2D 751 AND 154 F.2D 637, REVERSED. 


1.  HAVING BEEN DENIED CLASSIFICATION AS A MINISTER OF RELIGION UNDER
THE SELECTIVE TRAINING AND SERVICE ACT, CLASSIFIED AS A CONSCIENTIOUS
OBJECTOR AND ORDERED TO REPORT TO A CIVILIAN CAMP FOR WORK OF NATIONAL
IMPORTANCE, AND HAVING EXHAUSTED HIS ADMINISTRATIVE REMEDIES UP TO THAT
POINT, DODEZ REFUSED TO GO TO CAMP.  THE REGULATIONS THEN APPLICABLE
PROVIDED FOR A PREINDUCTION PHYSICAL EXAMINATION BEFORE ISSUANCE OF THE
ORDER TO REPORT FOR INDUCTION BUT NOT AFTER REPORTING TO CAMP, SO THAT
THERE WAS NO POSSIBILITY THAT HE WOULD BE REJECTED AFTER REPORTING TO
CAMP.  HE WAS INDICTED FOR VIOLATING SEC. 11 OF THE ACT AND DEFENDED ON
THE GROUND THAT HIS CLASSIFICATION WAS INVALID.  HELD:  HE WAS NOT
REQUIRED TO REPORT TO CAMP IN ORDER TO COMPLETE THE ADMINISTRATIVE
PROCESS AND IS NOT FORECLOSED FROM MAKING THE DEFENSE THAT HIS
CLASSIFICATION WAS INVALID.  PP. 343-350. 

(A)  FALBO V. UNITED STATES, 320 U.S. 549, DISTINGUISHED ON THE GROUND
THAT, UNDER THE REGULATIONS GOVERNING FALBO, HE MIGHT HAVE BEEN
REJECTED UPON A PHYSICAL EXAMINATION AFTER REPORTING TO CAMP.  PP. 343
350. 

2.  HAVING BEEN DENIED CLASSIFICATION AS A MINISTER OF RELIGION UNDER
THE SELECTIVE TRAINING AND SERVICE ACT, CLASSIFIED AS A CONSCIENTIOUS
OBJECTOR AND ORDERED TO REPORT TO A CIVILIAN CAMP FOR WORK OF NATIONAL
IMPORTANCE, AND HAVING EXHAUSTED HIS ADMINISTRATIVE REMEDIES, GIBSON
REPORTED TO CAMP, REMAINED FIVE DAYS, AND DEPARTED WITHOUT LEAVE.  THE
REGULATIONS THEN APPLICABLE PROVIDED FOR A PHYSICAL EXAMINATION AFTER
THE REGISTRANT REPORTED TO CAMP BUT REQUIRED THE CAMP DIRECTOR TO NOTE
THE FACT OF ACCEPTANCE OF THE REGISTRANT "IRRESPECTIVE OF THE
DETERMINATION MADE AS THE RESULT OF" THIS EXAMINATION.  HE WAS INDICTED
FOR VIOLATING SEC. 11 OF THE ACT AND DEFENDED ON THE GROUND THAT HIS
CLASSIFICATION WAS INVALID.  HELD:  BY REPORTING TO A CIVILIAN CAMP, HE
DID NOT FORFEIT THE RIGHT TO DEFEND AGAINST A CHARGE OF DESERTION ON
THE GROUND THAT HIS CLASSIFICATION WAS INVALID, SINCE HE REMAINED A
CIVILIAN AND WAS NOT SUBJECT TO MILITARY JURISDICTION.  PP. 351-361. 

(A) NO ANALOGY EXISTS BETWEEN A SELECTEE INDUCTED INTO MILITARY
SERVICE WHO MAY THEREAFTER OBTAIN HIS RELEASE ONLY BY RESORT TO HABEAS
CORPUS AND A SELECTEE REPORTING TO A CIVILIAN CAMP FOR WHOM THE
AVAILABILITY OF THE REMEDY OF HABEAS CORPUS IS DOUBTFUL.  PP. 356-361. 

3.  ON REVIEW OF A CONVICTION IN A CRIMINAL CASE, THE GOVERNMENT'S
CONFESSION OF ERROR DOES NOT RELIEVE THIS COURT OF THE DUTY TO EXAMINE
INDEPENDENTLY THE ERRORS CONFESSED.  P. 344, N. 9. 

4.  THIS COURT IS NOT REQUIRED TO DETERMINE THESE CASES FINALLY ON
THEIR MERITS BUT REMANDS THEM FOR FURTHER PROCEEDINGS IN THE TRIAL
COURT.  PP. 350-351, 361-362. 

GIBSON V. UNITED STATES. 

NO. 23.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT* . 

*TOGETHER WITH NO. 86, DODEZ V. UNITED STATES, ON CERTIORARI TO THE
CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT, ARGUED OCTOBER 23,
1946. 

NO. 23.  PETITIONER WAS CONVICTED FOR VIOLATING SEC. 11 OF THE
SELECTIVE TRAINING AND SERVICE ACT BY UNLAWFULLY DESERTING CAMP.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  149 F.2D 751.  THIS COURT GRANTED
CERTIORARI, 326 U.S. 708, AND, AFTER HEARING ARGUMENT, RESTORED THE
CASE TO THE DOCKET FOR REARGUMENT BEFORE A FULL BENCH.  REVERSED, P.
362. 

NO. 86.  PETITIONER WAS CONVICTED FOR VIOLATING SEC. 11 OF THE
SELECTIVE TRAINING AND SERVICE ACT BY FAILING TO REPORT TO CAMP.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  154 F.2D 637.  THIS COURT GRANTED
CERTIORARI.  328 U.S. 828.  REVERSED, P. 362. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THESE CASES CARRY FORWARD ANOTHER STEP THE SEQUENCE IN DECISION
REPRESENTED BY FALBO, BILLINGS, ESTEP AND SMITH.  FN1  EACH PETITIONER
HAS BEEN CONVICTED FOR VIOLATING SEC. 11 OF THE SELECTIVE TRAINING AND
SERVICE ACT (54 STAT. 894, 50 U.S.C. APP. SEC. 311), DODEZ FOR FAILING
TO REPORT FOR WORK OF NATIONAL IMPORTANCE AFTER BEING ORDERED TO DO SO
AND GIBSON FOR HAVING UNLAWFULLY DESERTED THE CAMP TO WHICH HE HAD BEEN
ASSIGNED FOR SUCH WORK.  FN2 

IN EACH INSTANCE THE CONVICTION WAS SUSTAINED ON APPEAL N3 AND
CERTIORARI WAS GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
PRESENTED FOR THE ADMINISTRATION OF THE ACT.  NO. 23, 326 U.S. 708,
RESTORED TO THE DOCKET FOR REARGUMENT BEFORE A FULL BENCH; NO. 86, 328
U.S. 828. 

THE PRINCIPAL ISSUES RELATE TO THE TIME OF COMPLETING THE
ADMINISTRATIVE SELECTIVE PROCESS AND THE EFFECT IN EACH CASE OF WHAT
WAS DONE IN THIS RESPECT UPON THE PETITIONER'S RIGHT TO MAKE DEFENSE IN
THE CRIMINAL PROCEEDINGS ON VARIOUS GROUNDS GOING TO THE VALIDITY OF
THE CLASSIFICATION. 

IN BOTH CASES TENDERED DEFENSES OF THIS CHARACTER WERE EXCLUDED IN
THE TRIAL COURT AND THE EXCLUSION WAS SUSTAINED ON APPEAL.  THE EFFECT
WAS, IN GIBSON'S CASE, TO RULE THAT ALTHOUGH HE HAD COMPLETED THE
ADMINISTRATIVE PROCESS BY REPORTING TO THE CAMP, PURSUANT TO THE
REQUIREMENT OF THE FALBO DECISION, NEVERTHELESS HIS REMEDY, IF ANY, ON
ACCOUNT OF THE ALLEGED MISCLASSIFICATION WAS BY HABEAS CORPUS, NOT BY
DEFENSE IN THE CRIMINAL CAUSE.  149 F.2D 751.  IN DODEZ' CASE IT WAS
HELD THAT BY REFUSING TO REPORT FOR SERVICE AT THE CAMP HE HAD FAILED
TO EXHAUST HIS ADMINISTRATIVE REMEDIES AND THEREFORE UNDER THE FALBO
DOCTRINE HE COULD NOT QUESTION HIS CLASSIFICATION IN THE CRIMINAL
SUIT.  154 F.2D 637.  FN4

                                  I. 

BOTH PETITIONERS ARE JEHOVAH'S WITNESSES.  EACH HAS CLAIMED
CONSISTENTLY SINCE THE TIME OF HIS REGISTRATION THAT HE IS A MINISTER
OF RELIGION AND THEREFORE EXEMPT FROM TRAINING AND SERVICE UNDER THE
ACT.  FN5  EACH WAS DENIED THIS CLASSIFICATION (IV-D), BEING CLASSIFIED
INSTEAD AS A CONSCIENTIOUS OBJECTOR (IV-E).  FN6  ADMINISTRATIVE
APPEALS WERE EXHAUSTED.  PURSUANT TO THE CLASSIFICATIONS GIVEN AND THE
APPLICABLE STATUTORY PROVISIONS AND REGULATIONS, DODEZ AND GIBSON WERE
ASSIGNED TO WORK OF NATIONAL IMPORTANCE AND ORDERED TO REPORT FOR SUCH
WORK AT DESIGNATED CAMPS. 

DODEZ REFUSED TO GO TO THE CAMP.  BUT GIBSON, THINKING THE FALBO
DECISION REQUIRED HIM TO REPORT THERE IN ORDER TO EXHAUST HIS
ADMINISTRATIVE REMEDIES, WENT TO THE CAMP, REMAINED FOR FIVE DAYS, AND
THEN DEPARTED WITHOUT LEAVE.  IT IS UNDISPUTED THAT HE INTENDED AT NO
TIME TO SUBMIT TO THE CAMP'S JURISDICTION OR AUTHORITY AND THAT HE AT
ALL TIMES MADE THIS INTENT CLEAR.  EVERYTHING HE DID WAS DONE SOLELY TO
MAKE SURE THAT THE ADMINISTRATIVE PROCESS HAD BEEN FINISHED AND WITH A
VIEW TO AVOIDING THE BARRIER FALBO ENCOUNTERED IN HIS TRIAL WHEN HE
SOUGHT TO QUESTION HIS CLASSIFICATION. 

OBVIOUSLY THE PETITIONERS HAVE SOUGHT TO REACH THE SAME POINT,
NAMELY, THE PLACE AT WHICH THE SELECTIVE PROCESS IS EXHAUSTED
ADMINISTRATIVELY, BUT HAVE DIFFERED CONCERNING ITS EXACT LOCATION. 
DODEZ MAINTAINS THAT THE POINT WAS REACHED, UNDER THE APPLICABLE
REGULATIONS,  FN7  WHEN HIS PREINDUCTION PHYSICAL EXAMINATION HAD BEEN
GIVEN AND HE WAS FOUND ACCEPTABLE FOR SERVICE BY THE SELECTIVE SERVICE
SYSTEM.  THIS WAS ON FEBRUARY 21, 1944, TWO MONTHS PRIOR TO THE DATE
(APRIL 21, 1944) WHEN HE WAS ORDERED TO REPORT FOR WORK AND REFUSED TO
GO. 

ON THE OTHER HAND, GIBSON ARGUES THAT UNTIL THE PRELIMINARIES TO
ACTUAL SERVICE, INCLUDING PHYSICAL EXAMINATION, WERE COMPLETED AT THE
CAMP, HE WAS NOT FORECLOSED BY GOING THROUGH WITH THEM FROM EXERCISING
HIS CHOICE NOT TO SUBMIT TO THE CAMP'S JURISDICTION, CF. BILLINGS V.
TRUESDELL, 321 U.S. 542, OR, UPON DOING SO, FROM ASSERTING THE
INVALIDITY OF HIS CLASSIFICATION IN A CRIMINAL TRIAL EITHER FOR FAILING
TO REPORT FOR SERVICE OR FOR DESERTION FROM THE CAMP.  CF. ESTEP V.
UNITED STATES, 327 U.S. 114; SMITH V. UNITED STATES, IBID.  CLEARLY, ON
THE FACTS AND THE ISSUES, THE QUESTION AS TO DODEZ, LIKE THAT IN
FALBO'S CASE, IS WHETHER HE WENT FAR ENOUGH TO EXHAUST THE
ADMINISTRATIVE PROCESS; WHILE AS TO GIBSON IT IS SAID THAT HE WENT TOO
FAR, THAT IS, BEYOND THE POINT OF COMPLETING THAT PROCESS, AND THAT
THIS CUT OFF THE RIGHT OF DEFENSE CONCEDEDLY AVAILABLE TO HIM AT THAT
POINT. 

                                 II. 

IF THESE CASES WERE CONTROLLED IN ALL RESPECTS BY THE REGULATIONS
EFFECTIVE WHEN FALBO'S CASE WAS DECIDED, DODEZ WOULD SEEM CLEARLY TO
FALL WITHIN THE DECISION'S PROSCRIPTION.  THE COURT THERE SAID:
"COMPLETION OF THE FUNCTIONS OF THE LOCAL BOARDS AND APPELLATE
AGENCIES, IMPORTANT AS ARE THESE FUNCTIONS, IS NOT THE END OF THE
SELECTIVE SERVICE PROCESS.  THE SELECTEE MAY STILL BE REJECTED AT THE
INDUCTION CENTER AND THE CONSCIENTIOUS OBJECTOR WHO IS OPPOSED TO
NONCOMBATANT DUTY MAY BE REJECTED AT THE CIVILIAN PUBLIC SERVICE CAMP. 
THE CONNECTED SERIES OF STEPS INTO THE NATIONAL SERVICE WHICH BEGINS
WITH REGISTRATION WITH THE LOCAL BOARD DOES NOT END UNTIL THE
REGISTRANT IS ACCEPTED BY THE ARMY, NAVY, OR CIVILIAN PUBLIC SERVICE
CAMP.  THUS A BOARD ORDER TO REPORT IS NO MORE THAN A NECESSARY
INTERMEDIATE STEP IN A UNITED AND CONTINUOUS PROCESS DESIGNED TO RAISE
AN ARMY SPEEDILY AND EFFICIENTLY."  320 U.S. AT 553.  SINCE
ACCEPTABILITY FOR SERVICE WAS NOT FINALLY DETERMINED UNDER THE
REGULATIONS THEN APPLICABLE UNTIL THE REGISTRANT HAD REACHED CAMP, HAD
THERE UNDERGONE OR WAIVED THE SPECIFIED PHYSICAL EXAMINATIONS, AND
THEREUPON HAD BEEN FOUND ACCEPTABLE,  FN8  AND SINCE FALBO HAD NOT
TAKEN THOSE STEPS, THE COURT HELD HE WAS NOT ENTITLED TO QUESTION HIS
CLASSIFICATION AND THEREFORE SUSTAINED HIS CONVICTION. 

HOWEVER, INTERMEDIATE THE FALBO DECISION AND ISSUANCE OF THE ORDER TO
DODEZ TO REPORT, THE REGULATIONS GOVERNING THE PROCEDURE RELATING TO
SELECTION FOR SERVICE WERE CHANGED AND IN A MANNER WHICH DODEZ SAYS
RELIEVED HIM FROM THE NECESSITY OF GOING TO THE CAMP IN ORDER TO
COMPLETE THE ADMINISTRATIVE PROCESS.  THE GOVERNMENT NOW CONCEDES, WE
THINK PROPERLY,  FN9  THAT DODEZ IS RIGHT IN THIS VIEW. 

IT IS NOT NECESSARY TO REVIEW IN DETAIL THE REGULATIONS WHICH WERE
GOVERNING IN FALBO'S CASE, SINCE THEY ARE NOT CONTROLLING IN EITHER OF
THE PRESENT ONES.  ALTHOUGH IT IS NOW ARGUED THAT THE COURT
MISCONCEIVED THEIR EFFECT,  FN10  WE NEED ONLY TO NOTE THAT IT WAS
WITHIN THE REGISTRANT'S POWER TO SECURE A PHYSICAL EXAMINATION BY THE
CAMP PHYSICIAN BY INDICATING A CHANGE IN HIS PHYSICAL CONDITION, IT
COULD NOT BE KNOWN IN ADVANCE IN ANY CASE WHETHER HE WOULD DEMAND IT,
AND UNTIL THIS WAS DETERMINED IT COULD NOT BE KNOWN FINALLY AND
IRREVOCABLY WHETHER HE WOULD BE "ACCEPTED FOR WORK OF NATIONAL
IMPORTANCE."  FN11  THE DECISION THEREFORE CORRECTLY RULED THAT "THE
CONSCIENTIOUS OBJECTOR WHO IS OPPOSED TO NONCOMBATANT DUTY MAY BE
REJECTED AT THE CIVILIAN PUBLIC SERVICE CAMP" AND THAT THE BOARD'S
ORDER TO REPORT THERE FOR SERVICE WAS "NO MORE THAN A NECESSARY
INTERMEDIATE STEP" IN THE CONTINUOUS SELECTIVE PROCESS, WHICH WAS NOT
ENDED UNTIL THE LAST POSSIBILITY FOR REJECTION HAD BEEN EXHAUSTED. 
UNDER THOSE REGULATIONS THERE WAS NO FINAL AND CONCLUSIVE ACCEPTANCE
FOR SERVICE UNTIL AFTER THOSE PROCEDURES AT THE CAMP WERE COMPLETED. 

IT WAS EXACTLY IN THIS RESPECT, HOWEVER, THAT THE CHANGES MADE IN THE
REGULATIONS IMMEDIATELY AFTER THE FALBO DECISION N12 AND SHORTLY PRIOR
TO ISSUANCE OF DODEZ' ORDER TO REPORT, TOGETHER WITH STILL OTHERS MADE
LATER BUT PRIOR TO THE ORDER TO GIBSON, WERE EFFECTIVE.  THE CHANGES
WERE EXTENSIVE AND IMPORTANT.  THE ALTERED REGULATIONS ARE LENGTHY.  WE
THEREFORE GIVE A SUMMARY IN THE MARGIN, NOTING THE MORE IMPORTANT
DIFFERENCES BETWEEN THOSE APPLICABLE TO DODEZ AND THOSE IN EFFECT AS TO
GIBSON.  FN13 

IT IS OF SOME IMPORTANCE TO NOTE THAT THE CHANGES AFFECTING BOTH
REGISTRANTS WERE MADE IN CONSEQUENCE OF THE ENACTMENT OF SEC. 5 OF
PUBLIC LAW 197, 78TH CONGRESS, APPROVED DECEMBER 5, 1943.  57 STAT.
596, 599, 50 U.S.C. APP. SEC. 304A.  THIS REQUIRED PREINDUCTION
PHYSICAL EXAMINATIONS TO BE GIVEN BEFORE THE REGISTRANT WAS ORDERED TO
REPORT FOR INDUCTION AND SERVICE.  FN14  PREVIOUSLY HE FIRST HAD BEEN
ORDERED TO REPORT FOR INDUCTION, WAS THEN GIVEN HIS PREINDUCTION
EXAMINATION BY THE ARMED FORCES AND, ON BEING FOUND ACCEPTABLE, WAS
INDUCTED AT ONCE.  FN15  THE MAJOR CHANGES IN THE REGULATIONS GIVING
EFFECT TO SEC. 5 WERE MADE ON JANUARY 10, 1944, ONE WEEK AFTER THE
FALBO DECISION CAME DOWN, SOME TAKING EFFECT ON THAT DATE,  FN16
OTHERS ON FEBRUARY 2D FOLLOWING.  THESE APPLIED TO DODEZ.  STILL OTHERS
NOT APPLICABLE TO HIM BUT OPERATIVE AS TO GIBSON TOOK EFFECT ON JUNE 7,
1944.  FN17 

THE CHANGED REGULATIONS, FOLLOWING OUT THE COMMAND OF SEC. 5 OF
PUBLIC ACT 197, PROVIDED FOR A PREINDUCTION PHYSICAL EXAMINATION TO BE
GIVEN BEFORE ISSUANCE OF THE ORDER TO REPORT FOR INDUCTION, RATHER THAN
AFTERWARD.  SECTION 629.1 OF AMENDMENT NO. 200(9 F.R. 440-442),
EFFECTIVE JANUARY 10, 1944.  FN18  THIS WAS THE BASIC AMENDMENT.  IT
APPLIED TO ALL REGISTRANTS SUBJECT TO CALL FOR SERVICE, INCLUDING THOSE
CLASSIFIED IV-E.  MOREOVER, BY AMENDMENT NO. 210(9 F.R. 1416),
EFFECTIVE FEBRUARY 2, 1944, SEC. 653.11 OF THE REGULATIONS APPLICABLE
TO MEN SO CLASSIFIED WAS CHANGED TO ELIMINATE THE PREVIOUSLY EFFECTIVE
PARAGRAPH (C) PROVIDING FOR PHYSICAL EXAMINATION BY THE CAMP PHYSICIAN
ON INDICATION OF CHANGED CONDITION AND CONSEQUENT POSSIBLE REJECTION AT
THE CAMP.  INSTEAD THE AMENDED REGULATION STATED SIMPLY THAT (A), WHEN
THE "ASSIGNEE" HAD REPORTED TO THE CAMP, THE CAMP DIRECTOR SHOULD
"COMPLETE THE ORDER TO REPORT FOR WORK OF NATIONAL IMPORTANCE (FORM
50)"; AND (B) PLACE, AS SPECIFIED, ON THE ASSIGNEE'S PAPERS, "A
STATEMENT THAT (THE) REGISTRANT IS ACCEPTED" FOR WORK AT THE DESIGNATED
CAMP, STATING ALSO THE DATE AND PLACE OF ACCEPTANCE; (C) THE LOCAL
BOARD, "UPON RECEIVING NOTICE THAT A REGISTRANT HAS BEEN ACCEPTED FOR
WORK," SHOULD NOT "CHANGE HIS CLASSIFICATION BUT SHALL NOTE THE FACT OF
HIS ACCEPTANCE" ON FORM 100; AND (D), IF THE ASSIGNEE FAILED TO REPORT
WHEN REQUIRED, THE CAMP DIRECTOR WAS TO NOTIFY THE DIRECTOR OF
SELECTIVE SERVICE.  FN19 

THE EFFECT OF THE STATUTE AND THE AMENDED REGULATION WAS TO PLACE THE
ORDER TO REPORT FOR SERVICE NEARER THE END OF THE ADMINISTRATIVE
PROCESS THAN IT HAD BEEN PREVIOUSLY, SO FAR AS CONCERNED THE POWER OF
THE REGISTRANT TO TAKE ACTION WHICH MIGHT RESULT IN HIS REJECTION.  THE
ELIMINATION OF THE PROVISION PERMITTING MEDICAL EXAMINATION AT THE
CAMP, BY AMENDMENT NO. 210, REMOVED ANY CHANCE THE REGISTRANT FORMERLY
HAD TO SECURE REJECTION BY DEMANDING EXAMINATION THERE, AND LEFT TO BE
PERFORMED AT THE CAMP ONLY THE FORMAL ENTRIES OF "COMPLETING THE ORDER
TO REPORT" AND NOTING THE FACT, TIME AND PLACE OF "ACCEPTANCE" UPON THE
ASSIGNEE'S PAPERS, TOGETHER WITH THE DUTIES OF NOTIFYING THE LOCAL
BOARD OF ACCEPTANCE OR THE DIRECTOR OF SELECTIVE SERVICE OF FAILURE TO
REPORT. 

ALTHOUGH THE AMENDED REGULATIONS THUS SPEAK OF "COMPLETING THE ORDER
TO REPORT" AND OF PLACING ON HIS PAPERS "A STATEMENT THAT A REGISTRANT
IS ACCEPTED," WE AGREE THAT THESE WERE ONLY FORMAL MATTERS TO BE
PERFORMED BY CAMP OFFICIALS, AND LEFT NOTHING TO BE DONE BY THEM OR BY
THE APPLICANT AFTER REACHING THE CAMP WHICH MIGHT RESULT IN HIS BEING
REJECTED OR RELEASED FROM THE DUTY TO REMAIN AND PERFORM THE FURTHER
DUTIES IMPOSED ON HIM.  TO CONSTRUE THE REGULATIONS OTHERWISE WOULD BE
TO FORCE THE REGISTRANT NOT ONLY TO PERFORM ALL REQUIREMENTS AFFORDING
POSSIBILITY OF RELIEF BUT ALSO TO GO THROUGH WITH PURELY FORMAL STEPS
TO BE TAKEN BY CAMP OFFICIALS OFFERING NO SUCH POSSIBILITY.  EXACTING
THIS WOULD STRETCH THE REQUIREMENT OF EXHAUSTING THE ADMINISTRATIVE
PROCESS BEYOND ANY REASON SUPPORTING IT.  CF. LEVERS V. ANDERSON, 326
U.S. 219.  AND, AS APPEARS FROM GIBSON'S EXPERIENCE, BY GOING THROUGH
WITH THOSE FORMALITIES DODEZ WOULD HAVE FOUND HIMSELF CONFRONTED WITH
THE GOVERNMENT'S CONTENTION THAT HE HAD GONE TOO FAR. 

WE HOLD THEREFORE, IN ACCORDANCE WITH DODEZ' VIEW AND THE
GOVERNMENT'S CONCESSION, THAT HE WAS NOT REQUIRED TO REPORT TO THE
CAMP, UNDER THE REGULATIONS EFFECTIVE WHEN HIS ORDER TO REPORT BECAME
OPERATIVE, IN ORDER TO COMPLETE THE ADMINISTRATIVE PROCESS; AND THAT HE
THEREFORE WAS NOT FORECLOSED BY THE FALBO DECISION FROM MAKING ANY
DEFENSE OPEN TO HIM IN HIS CRIMINAL TRIAL UNDER THE STATUTE OR THE
CONSTITUTION ASIDE FROM THE EFFECT OF THAT DECISION.  ESTEP V. UNITED
STATES, 327 U.S. 114; SMITH V. UNITED STATES, IBID.; CF. BILLINGS V.
TRUESDELL, 321 U.S. 542.    THIS VIEW REQUIRES REVERSAL OF THE JUDGMENT
IN NO. 86 AND REMANDING THE CAUSE TO THE DISTRICT COURT FOR A FURTHER
TRIAL.  DODEZ INSISTS HOWEVER THAT WE SHOULD GO FURTHER AND DETERMINE
THE CASE FINALLY UPON THE MERITS.  HE URGES THAT THE EVIDENCE PROPERLY
TENDERED AND ADMISSIBLE UPON THE EXCLUDED DEFENSES, AS WELL AS THAT
ADDUCED N20, WOULD SUPPORT NO OTHER VERDICT THAN ONE OF ACQUITTAL AND
THAT THEREFORE THE TRIAL COURT SHOULD HAVE SUSTAINED HIS MOTION TO
DISMISS THE CAUSE.  FN21  ACCORDINGLY HE ASKS FOR A JUDGMENT HERE
DIRECTING THAT SUCH RELIEF BE GIVEN. 

IN THE ESTEP AND SMITH CASES, AFTER HOLDING THAT THE PETITIONERS HAD
BEEN WRONGFULLY DENIED OPPORTUNITY TO DEFEND BY ATTACKING THE VALIDITY
OF THEIR CLASSIFICATIONS, THIS COURT REVERSED THE CONVICTIONS AND
REMANDED THE CAUSES FOR NEW TRIALS, STATING:  "WE EXPRESS NO OPINION ON
THE MERITS OF THE DEFENSES WHICH WERE TENDERED.  SINCE THE PETITIONERS
WERE DENIED THE OPPORTUNITY TO SHOW THAT THEIR LOCAL BOARDS EXCEEDED
THEIR JURISDICTION, A NEW TRIAL MUST BE HAD IN EACH CASE."  327 U.S. AT
125.  DODEZ' SITUATION IS IDENTICAL, IN THIS RESPECT, WITH THOSE OF
ESTEP AND SMITH.  FN22 ACCORDINGLY WE REMAND THE CAUSE, AS WAS DONE IN
THE SMITH AND ESTEP CASES, FOR FURTHER PROCEEDINGS IN THE TRIAL COURT,
WITHOUT EXPRESSING OPINION UPON THOSE FURTHER ISSUES. 

                                 III. 

THE GOVERNMENT URGES THAT THE CONCLUSION WE HAVE ACCEPTED FOR DODEZ
FORCES THE CONTRARY RESULT IN GIBSON'S CASE NO. 23.  THE ARGUMENT, AS
WE HAVE POINTED OUT, IS NOT THAT GIBSON FELL SHORT OF EXHAUSTING THE
ADMINISTRATIVE PROCESS, FOR HE CLEARLY HAD DONE THIS.  IT IS RATHER
THAT HE WENT BEYOND WHAT WAS REQUIRED FOR THAT PURPOSE, THEREBY BECAME
SUBJECT TO THE CAMP'S JURISDICTION, AND IN DOING THIS IRREVOCABLY
FORECLOSED HIMSELF FROM DEFENDING AGAINST THE CHARGE OF DESERTION ON
THE GROUND THAT HIS CLASSIFICATION WAS INVALID. 

THE GOVERNMENT'S POSITION IS FOUNDED UPON ANALOGY TO THE CASES WHICH
HOLD THAT ONE WHO HAS BEEN INDUCTED INTO THE ARMED FORCES, ALTHOUGH
WRONGFULLY, BECOMES SUBJECT TO MILITARY JURISDICTION, IS THEREAFTER
AMENABLE TO ITS PROCESSES N23, AND CAN SECURE HIS RELEASE FROM SERVICE
OR MILITARY CUSTODY ONLY BY RESORT TO HABEAS CORPUS.  FN24 

APPLYING THE ANALOGY, THE GOVERNMENT INSISTS THAT WHEN GIBSON WENT TO
THE CAMP AND THERE WENT THROUGH THE PRELIMINARY FORMALITIES FOR
BECOMING A MEMBER, HE BECAME "INDUCTED" AS A CAMP MEMBER, JUST AS ONE
BECOMES A MEMBER OF THE ARMED FORCES BY UNDERGOING THE INDUCTION
CEREMONY, CF. BILLINGS V. TRUESDELL, SUPRA, EVEN THOUGH THE INDUCTION
IS IN VIOLATION OF HIS RIGHTS.  THEREAFTER, THE ARGUMENT CONTINUES,
GIBSON BECAME SUBJECT TO THE CAMP'S "JURISDICTION," JUST AS THE
WRONGFULLY INDUCTED SOLDIER WOULD BECOME SUBJECT TO MILITARY
JURISDICTION; AND, LIKE THE LATTER, CANNOT RAISE THE ILLEGALITY OF HIS
INDUCTION AS A DEFENSE TO A CHARGE OF VIOLATING ANY DUTY IMPOSED UPON
INDUCTED MEMBERS; BUT MUST SEEK HIS RELIEF, IF ANY, BY THE WRIT OF
HABEAS CORPUS.  SINCE THE ACT AND THE REGULATIONS LAID UPON CAMP
MEMBERS A DUTY TO REMAIN AND PERFORM THE FURTHER DUTIES PRESCRIBED FOR
THEM,  FN25  GIBSON'S DEPARTURE WITHOUT LEAVE AMOUNTED TO DESERTION;
HIS DEFENSE OF WRONGFUL CLASSIFICATION IS NO MORE OPEN TO HIM THAN A
DEFENSE OF ILLEGAL INDUCTION WOULD BE OPEN TO A WRONGFULLY INDUCTED
SOLDIER VIOLATING A MILITARY ORDER; AND HIS REMEDY, IF ANY, IS TO APPLY
FOR RELEASE FROM THE CAMP THROUGH HABEAS CORPUS. 

THE ARGUMENT IS SUPPORTED BY EXTENSIVE REFERENCE TO THE REGULATIONS
IN FORCE WHEN GIBSON WAS ORDERED TO REPORT, INCLUDING THE CHANGES
AFFECTING DODEZ AND THE OTHERS WHICH BECAME EFFECTIVE JUNE 7, 1944, BY
AMENDMENT NO. 236(9 F.R. 6207).  THE IMPORTANT CHANGES THIS AMENDMENT
MADE WERE TWO, NAMELY:  (1) TO REINTRODUCE INTO SEC. 653.11 THE
PROVISION APPLICABLE IN FALBO'S CASE BUT ELIMINATED AS TO DODEZ BY
AMENDMENT NO. 210, EFFECTIVE FEBRUARY 2, 1944,  FN26  FOR MEDICAL
EXAMINATIONS TO BE GIVEN AT THE CAMP TO DETERMINE CHANGE IN CONDITION;
AND (2) TO ADD TO THE PREEXISTING REQUIREMENT FOR THE CAMP DIRECTOR'S
NOTING THE FACT OF ACCEPTANCE ON THE REGISTRANT'S PAPERS  FN27  THE
EXPLICIT NEW PROVISION THAT THIS SHOULD BE DONE "IRRESPECTIVE OF THE
DETERMINATION WHICH IS MADE AS A RESULT OF THE EXAMINATION."  FN28 

THE GOVERNMENT ALSO EMPHASIZES TWO OTHER REGULATIONS.  ONE IS SEC.
652.12, REQUIRING THE LOCAL BOARD TO PROVIDE TRANSPORTATION FOR
REGISTRANTS REPORTING TO IT FOR TRANSPORTATION TO THE CAMP.  THE OTHER,
SEC. 652.13, PROVIDING THAT A CLASS IV-E REGISTRANT "AFTER HE HAS LEFT
THE LOCAL BOARD IN ACCORDANCE WITH SEC. 652.12 FOR WORK OF NATIONAL
IMPORTANCE UNDER CIVILIAN DIRECTION IS UNDER THE JURISDICTION OF THE
CAMP TO WHICH HE IS ASSIGNED."  FN29 

THE SHORT EFFECT OF SEC. 653.11, AS ALTERED AT THE TIME OF GIBSON'S
ORDER TO REPORT, WAS TO RETAIN THE REQUIREMENTS FOR FORMAL ENTRIES OF
"ACCEPTANCE" AND GIVING NOTICE, AT THE CAMP, WHICH APPLIED TO DODEZ; TO
REINTRODUCE THE PROVISION FOR PHYSICAL EXAMINATION THERE; BUT AT THE
SAME TIME TO NULLIFY THE POSSIBILITY THIS PRESENTED IN FALBO'S CASE FOR
GIVING RELIEF, BY PROVIDING THAT THE CAMP DIRECTOR SHOULD NOTE THE FACT
OF ACCEPTANCE "IRRESPECTIVE OF THE DETERMINATION WHICH IS MADE AS THE
RESULT OF" THIS EXAMINATION. 

TAKING ACCOUNT OF REVISED SEC. 653.11 AS PRECLUDING ANY POSSIBILITY
FOR SECURING ADMINISTRATIVE RELIEF AT THE CAMP, THE GOVERNMENT REGARDS
SEC. 652.13 AS MARKING THE PRECISE AND CRUCIAL LINE FOR CROSSING FROM
THE BOARD'S JURISDICTION INTO THAT OF THE CAMP, NAMELY, AT THE POINT
WHERE THE REGISTRANT BEGINS HIS JOURNEY TO THE CAMP.  TO TAKE THIS
STEP, IT SAYS, IS EQUIVALENT TO THE OATH IN THE INDUCTION CEREMONY
PRESCRIBED FOR MEN ENTERING THE ARMED FORCES, CF. BILLINGS V.
TRUESDELL, SUPRA; AND PRODUCES THE SAME CONSEQUENCES FOR FORECLOSING
THE DEFENSE OF ILLEGAL CLASSIFICATION, REGARDLESS OF INTENTION TO
SUBMIT TO THE CAMP'S JURISDICTION, INDEED IN SPITE OF GIBSON'S
UNWAVERING MANIFESTATION OF INTENTION NOT TO SUBMIT.  FN30 

MUCH OF THE ARGUMENT WAS DEVOTED TO WHETHER, ON THE BASIS OF THE
GOVERNMENT'S ANALOGY, SEC. 652.13 COULD BE TAKEN TO FIX THE END OF THE
"INTERVAL OF CHOICE," CF. BILLINGS V. TRUESDELL, SUPRA, IN VIEW OF THE
CONSTANTLY CHANGING CHARACTER OF THE REGULATIONS, THE ABSENCE OF ANY
PRESCRIBED INDUCTION CEREMONY SUCH AS THE BILLINGS CASE INVOLVED, AND
THE CONSEQUENT DIFFICULTY CONFRONTING ONE SEEKING TO COMPLY WITH THE
FALBO DECISION IN ASCERTAINING THE EXACT LOCATION OF SUCH A LINE.  FN31
WE DO NOT FIND IT NECESSARY TO CONSIDER THE CONFLICTING CONTENTIONS IN
THIS RESPECT, OR THEREFORE TO SCRUTINIZE THE REGULATIONS WITH A VIEW TO
LOCATING SUCH A POINT.  MORE FUNDAMENTAL CONSIDERATIONS ARE
CONTROLLING. 

WE HAVE SAID THAT THE GOVERNMENT'S ARGUMENT IS FOUNDED ENTIRELY UPON
ANALOGY, BECAUSE NO CASE HAS RULED THAT ONE WHO BECOMES SUBJECT TO THE
"JURISDICTION" OF A WORK CAMP UNDER THE SELECTIVE SERVICE PROCEDURE
THEREBY FORFEITS HIS RIGHT TO DEFEND AGAINST A CHARGE OF DESERTION OR
OTHER BREACH OF DUTY, ON THE GROUND THAT HIS CLASSIFICATION WAS
INVALID.  NOR HAS IT BEEN HELD THAT HIS ONLY RECOURSE FOR RELEASE FROM
THE CAMP IS BY WAY OF HABEAS CORPUS.  FURTHERMORE, WE THINK THERE ARE
COMPELLING REASONS WHY THE ANALOGY DOES NOT HOLD TRUE. 

IN THE FIRST PLACE, THERE ARE OBVIOUS AND IMPORTANT DIFFERENCES
BETWEEN THE TWO SITUATIONS WHICH IT IS SOUGHT TO CONNECT BY THE CLAIMED
RESEMBLANCE.  NOT THE LEAST IS THAT IN THE ONE INSTANCE THE PERSON
CONCERNED CROSSES THE VAST GULF BETWEEN CIVIL AND MILITARY
JURISDICTION, WITH ALL THE ATTENDANT CONSEQUENCES FOR CHANGE IN STATUS
AND RIGHTS, WHEREAS IN THE OTHER NO SUCH CHASM IS TRAVERSED.  THE
ALLEGED TRANSFER OF "JURISDICTION" IS ONLY FROM ONE CIVILIAN AGENCY TO
ANOTHER, BOTH BRANCHES OF THE SELECTIVE SERVICE SYSTEM, AND THERE IS
NONE AT ALL FROM THE AUTHORITY OF THE CIVILIAN COURTS AS AGENCIES FOR
THE ENFORCEMENT OF OBLIGATIONS IMPOSED BY THE LAW.  THERE IS IN FACT NO
CHANGE IN "JURISDICTION" WHATSOEVER, EXCEPT IN THE SENSE THAT FROM THE
TIME HE BECOMES A CAMP MEMBER THE REGISTRANT'S DUTIES ARE DIFFERENT AND
HIS ORDERS COME THROUGH DIFFERENT CHANNELS OF THE SAME AGENCY. 

UNLIKE THE MAN "ACTUALLY INDUCTED," THE PERSON CLASSIFIED IV-E
REMAINS A CIVILIAN; HIS DUTIES ARE NOT MILITARY IN CHARACTER; HE IS NOT
SUBJECT TO MILITARY DISCIPLINE OR AUTHORITY; AND FOR VIOLATION OF
DUTIES OR ORDERS HE CANNOT BE TRIED BY COURT MARTIAL OR MILITARY
TRIBUNAL.  ON THE CONTRARY, THE SELECTIVE SERVICE ACT EXPRESSLY
PROVIDES THE SAME CIVIL PENALTIES AND MODE OF TRIAL FOR VIOLATING
DUTIES ARISING WHEN HE ENTERS THE CAMP AS FOR THOSE ARISING BEFORE THAT
TIME.  FN32 

THERE IS THEREFORE NO SUCH PROFOUND CHANGE IN RIGHTS, DUTIES AND
STATUS AS OCCURS WHEN ONE CROSSES THE LINE BETWEEN CIVIL AND MILITARY
JURISDICTION BY BEING "ACTUALLY INDUCTED" UNDER THE RULE OF BILLINGS V.
TRUESDELL, SUPRA.  IT WAS THIS CHANGE AND THE CONSEQUENCES IT ENTAILED,
TOGETHER WITH THE STATUTE'S COMMAND THAT NO ONE SHOULD BE TRIED BY
MILITARY OR NAVAL COURT MARTIAL IN ANY CASE ARISING UNDER THE ACT UNTIL
HE HAD BEEN ACTUALLY INDUCTED,  FN33  WHICH WE THERE HELD TO REQUIRE
PLACING THE LINE PRECISELY, NOT ONLY FOR EXHAUSTING ADMINISTRATIVE
REMEDIES UNDER THE FALBO RULE, BUT ALSO FOR MARKING THE POINT OF ACTUAL
INDUCTION AT WHICH THE REGISTRANT'S RIGHT ENDS TO CHOOSE BETWEEN GOING
FORWARD INTO THE SERVICE AND INCURRING THE CIVIL LIABILITY FOR BREACH
OF THAT DUTY. 

THE PERSON CLASSIFIED AS CONSCIENTIOUS OBJECTOR IS NEVER CONFRONTED
WITH THAT CHOICE.  HE IS RELIEVED BY THE ACT FROM ANY DUTY TO PERFORM
MILITARY SERVICE.  HE IS NOT THREATENED WITH INDUCTION.  HE IS IN FACT
FARTHER REMOVED FROM MILITARY STATUS OR JURISDICTION AFTER HE IS
FINALLY ASSIGNED TO CIVILIAN PUBLIC SERVICE OF NATIONAL IMPORTANCE, AND
FOR THIS REASON IS REJECTED FOR MILITARY SERVICE, THAN HE WAS BEFORE
THAT TIME.  HIS CHOICE IS NOT BETWEEN GOING INTO SERVICE AND TAKING THE
CIVIL PENALTY LAID FOR VIOLATING THAT DUTY.  IT IS BETWEEN PERFORMING
CIVILIAN SERVICE UNDER CIVILIAN AUTHORITY AND INCURRING THE CIVIL
PENALTY FOR REFUSING TO DO SO. 

MOREOVER, IN THE CASE OF ONE ENTERING THE ARMED FORCES, THE LOSS OF
CIVIL RIGHTS, INCLUDING THOSE OF RECOURSE TO THE CIVIL COURTS OTHER
THAN BY WAY OF HABEAS CORPUS,  FN34  RESULTS ALTOGETHER BY VIRTUE OF
THE CHANGE FROM CIVILIAN TO MILITARY STATUS.  THE REASONS UNDERLYING
THOSE RULINGS DO NOT APPLY IN THE CASE OF ONE WHO DOES NOT UNDERGO THAT
CHANGE, REMAINS AT ALL TIMES A CIVILIAN, SUBJECT ONLY TO CIVILIAN
DUTIES AND TO CIVIL PENALTIES FOR VIOLATING THEM.  THERE IS NOT THE
SAME NECESSITY OR COMPULSION IN SUCH A CASE FOR BRINGING ABOUT
FORFEITURE OF CIVILIAN RIGHTS, INCLUDING REMEDIES FOR QUESTIONING THE
VALIDITY OF THE ORDER THE REGISTRANT IS CHARGED WITH VIOLATING.  THAT
COMPULSION ARISES FROM THE NECESSITY FOR PREVENTING INTERRUPTION OF
MILITARY PROCESSES BY INTRUSION OF THE CIVIL COURTS BEYOND THE
ESSENTIAL MINIMUM OF KEEPING OPEN THE HABEAS CORPUS CHANNEL TO SHOW
THAT THE MILITARY AUTHORITY HAS EXCEEDED ITS JURISDICTION IN DEALING
WITH THE INDIVIDUAL.  FN35  IT IS ON THIS FOUNDATION THAT THE
FORFEITURE OF OTHER CIVIL REMEDIES IS HELD TO TAKE PLACE. 

BUT THERE IS NO SUCH NECESSITY, OR THEREFORE ANY SUCH FOUNDATION FOR
FORFEITURE, IN THE CASE OF ONE CLASSIFIED AS A CONSCIENTIOUS OBJECTOR
AND ASSIGNED FOR WORK OF NATIONAL IMPORTANCE.  SERIOUS AS ARE THE
CONSEQUENCES OF HIS REFUSAL TO PERFORM THAT WORK, DEALING WITH SUCH
BREACHES OF DUTY BY THE CIVIL COURTS DOES NOT INVOLVE, IN THE REMOTEST
SENSE, INTERRUPTION OR INTERFERENCE BY CIVILIAN AUTHORITY WITH MILITARY
PROCESSES OR JURISDICTION.  ENTIRELY WANTING THEREFORE IS ANY SUCH
FOUNDATION FOR FORFEITURE OF CIVIL RIGHTS AS EXISTS IN THE CASE OF ONE
INDUCTED INTO THE ARMED SERVICES.  WITHOUT SUCH A FOUNDATION THE
ANALOGY DISSOLVES AND WITH IT THE ASSERTED FORFEITURE. 

THIS BECOMES EVEN MORE CLEAR WHEN IT IS RECALLED THAT ONE BASIS FOR
THE FORFEITURE, WHICH THE GOVERNMENT HAS MAINTAINED, IS THAT HABEAS
CORPUS IS AVAILABLE FOR THE PERSON CLASSIFIED IV-E AND WRONGFULLY
DENIED CLASSIFICATION AND EXEMPTION AS A MINISTER OF RELIGION.  THIS
REMEDY, IT WAS ASSERTED ORIGINALLY, IS ADEQUATE AND EXCLUSIVE, AND
THEREFORE SHOULD BE HELD TO FORECLOSE RESORT TO OTHER FORMS OF RELIEF. 

BUT HERE AGAIN THE ASSERTED ANALOGY FAILS.  IT HAS BEEN CLEARLY
ESTABLISHED THAT THE REMEDY BY WAY OF HABEAS CORPUS IS OPEN TO THE
WRONGFULLY INDUCTED MEMBER OF THE ARMED FORCES TO SECURE HIS RELEASE. 
FN36  BUT AT THE ARGUMENT IT WAS CONCEDED THAT NEITHER THE CAMP
DIRECTOR NOR OTHER OFFICIALS OF THE SELECTIVE SERVICE SYSTEM ARE
AUTHORIZED TO USE FORCE TO ARREST OR RESTRAIN ONE WHO REFUSES TO REMAIN
IN THE CAMP.  AND THIS, IT WAS ALSO ADMITTED, WOULD MAKE DOUBTFUL THE
AVAILABILITY OF RELIEF BY WAY OF HABEAS CORPUS.  FN37  INDEED IT MIGHT
WELL BE URGED THAT THE REMEDY IS NOT AVAILABLE FOR ONE CHARGED WITH
VIOLATION OF ANY DUTY, WHETHER FAILURE TO REPORT TO THE CAMP, TO REMAIN
THERE, OR TO PERFORM OTHER OBLIGATIONS, SINCE THE ONLY COMPULSION LAID
UPON SUCH A PERSON BY THE ACT OR OTHERWISE IS THE FORCE OF THE LEGAL
COMMAND PLUS THE PROVISION FOR CRIMINAL PENALTY IN CASE OF
DISOBEDIENCE. 

WE NEED NOT DECIDE THIS QUESTION, HOWEVER, AND WE EXPRESS NO OPINION
UPON IT.  FOR IT IS ENOUGH TO DESTROY THE ANALOGY THE GOVERNMENT SEEKS
TO DRAW THAT THE REMEDY BY HABEAS CORPUS IS AN UNCERTAIN ONE.  SHOULD
IT BE FOUND UNAVAILABLE AND AT THE SAME TIME WE SHOULD RULE THAT
PETITIONER'S DEFENSE COULD NOT BE MADE IN THE CRIMINAL PROCEEDING, HE
WOULD BE LEFT ENTIRELY WITHOUT REMEDY, A RESULT CONSISTENT NEITHER WITH
OUR DECISION IN THE CASES OF ESTEP AND SMITH, SUPRA, NOR WITH THE
STATUTE.  NO MORE, WE THINK, IS IT CONSISTENT WITH THE ACT OR THOSE
RULINGS TO FORECLOSE THE RIGHT OF DEFENSE UPON THE BASIS OF UNCERTAINTY
WHETHER THE HABEAS CORPUS REMEDY MIGHT BE HAD.    FINALLY, CONGRESS HAS
PROVIDED EXPRESSLY FOR ENFORCING THE DUTY TO REPORT TO THE CAMP FOR
WORK AND DUTIES ARISING THEREAFTER THROUGH THE CRIMINAL PROCEEDINGS AND
PENALTIES PRESCRIBED BY SEC. 11.  IN ITS VIEW THESE WERE ADEQUATE FOR
THE PURPOSE.  NOTHING IN THE SECTION OR THE STATUTE, IN THE LIGHT OF
OUR PRIOR DECISIONS, CAN BE TAKEN TO INDICATE THAT CONGRESS INTENDED
PERSONS CHARGED WITH VIOLATING SUCH DUTIES TO BE DEPRIVED OF THEIR
RIGHTS OF DEFENSE ON THE GROUND OF INVALID CLASSIFICATION, EITHER
ABSOLUTELY SHOULD HABEAS CORPUS PROVE UNAVAILABLE OR CONTINGENTLY
DEPENDING UPON HOW THE DOUBT CONCERNING THAT REMEDY'S AVAILABILITY
MIGHT BE RESOLVED.  THE GOVERNMENT CONCEDES THAT CONGRESS INTENDED SOME
REMEDY TO BE AVAILABLE.  WE KNOW OF NO WAY BY WHICH THIS CAN BE
ASSURED, IN SUCH A CASE AS GIBSON'S, OTHERWISE THAN BY PERMITTING THE
DEFENSE TO BE RAISED IN THE CRIMINAL TRIAL. 

THE ANALOGY FAILING, FOR BOTH OF THE REASONS WE HAVE STATED, BY WHICH
IT IS SOUGHT TO CONFINE THE REMEDY TO HABEAS CORPUS, WE THINK THE
DEFENSE HAS BEEN LEFT OPEN FOR PRESENTATION IN THIS CASE AND SHOULD
HAVE BEEN ALLOWED.  ESTEP V. UNITED STATES, 327 U.S. 114; SMITH V.
UNITED STATES, IBID.  FN38 

GIBSON, LIKE DODEZ, AND FOR SIMILAR REASONS, INSISTS THAT WE SHOULD
DISPOSE OF THE CASE UPON THE MERITS, BY EXAMINING AND SUSTAINING HIS
DEFENSE.  THE SAME COURSE SHOULD BE FOLLOWED FOR GIBSON IN THIS RESPECT
AS WAS DIRECTED FOR DODEZ. 

WE EXPRESS NO OPINION CONCERNING WHETHER A DIFFERENT RESULT MIGHT
FOLLOW FOR ONE IN GIBSON'S POSITION IF HE SHOULD REMAIN AT THE CAMP FOR
A SUBSTANTIALLY LONGER PERIOD AND THEN DEPART WITHOUT LEAVE.  FN39 

THE QUESTION RAISED CONCERNING VENUE HAS BEEN DETERMINED ADVERSELY TO
GIBSON'S CONTENTION BY OUR DECISION IN UNITED STATES V. ANDERSON, 328
U.S. 699. 

THE JUDGMENTS ARE REVERSED AND THE CAUSES ARE REMANDED TO THE
DISTRICT COURTS FROM WHICH THEY CAME, FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  FALBO V. UNITED STATES, 320 U.S. 549; BILLINGS V. TRUESDELL, 321
U.S. 542; ESTEP V. UNITED STATES, 327 U.S. 114; SMITH V. UNITED STATES,
IBID. 

FN2  SECTION 11 PROVIDES, IN PART:  "ANY PERSON CHARGED AS HEREIN
PROVIDED WITH THE DUTY OF CARRYING OUT ANY OF THE PROVISIONS OF THIS
ACT, OR THE RULES OR REGULATIONS MADE OR DIRECTIONS GIVEN THEREUNDER,
WHO SHALL KNOWINGLY FAIL OR NEGLECT TO PERFORM SUCH DUTY,  ...  SHALL,
UPON CONVICTION IN THE DISTRICT COURT OF THE UNITED STATES HAVING
JURISDICTION THEREOF, 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  ..." 

CLASSIFIED IV-E TO COMPLY WITH THE ORDER TO REPORT FOR WORK OF NATIONAL
IMPORTANCE; AND BY SEC. 653.12 ASSIGNEES ARE REQUIRED TO REPORT TO THE
CAMP TO WHICH THEY ARE ASSIGNED AND TO REMAIN THEREIN UNTIL RELEASED OR
TRANSFERRED ELSEWHERE BY PROPER AUTHORITY, EXCEPT WHEN ON AUTHORIZED
MISSIONS OR LEAVE. 

FN3  149 F.2D 751(C.C.A. 8); 154 F.2D 637(C.C.A. 6). 

FN4  APPARENTLY IN BOTH CASES THE IMPORTANT CHANGES IN THE APPLICABLE
REGULATIONS MADE AFTER THE FALBO DECISION WERE NOT CALLED TO THE
ATTENTION OF THE TRIAL COURTS OR THE CIRCUIT COURTS OF APPEALS. 

FN5  THE EXEMPTION IS PROVIDED BY SEC. 5(D) OF THE ACT, 54 STAT. 885,
888, AS FOLLOWS:  "REGULAR OR DULY ORDAINED MINISTERS OF RELIGION, AND
STUDENTS WHO ARE PREPARING FOR THE MINISTRY IN THEOLOGICAL OR DIVINITY
SCHOOLS RECOGNIZED AS SUCH FOR MORE THAN ONE YEAR PRIOR TO THE DATE OF
ENACTMENT OF THIS ACT, SHALL BE EXEMPT FROM TRAINING AND SERVICE (BUT
NOT FROM REGISTRATION) UNDER THIS ACT." 

FN6  PURSUANT TO SEC. 5(G) OF THE ACT, WHICH PROVIDES THAT PERSONS SO
CLASSIFIED SHALL BE ASSIGNED TO NONCOMBATANT SERVICE OR, IF
CONSCIENTIOUSLY OPPOSED TO THIS, THEN TO "WORK OF NATIONAL IMPORTANCE
UNDER CIVILIAN DIRECTION." 

FN7  SEE TEXT PART II INFRA AT NOTE 19; ALSO NOTE 13. 

FN8  AT THAT TIME SEC. 653.11(C) OF THE SELECTIVE SERVICE REGULATIONS
PROVIDED:  "IF THE ASSIGNEE INDICATES THAT HIS PHYSICAL CONDITION HAS
CHANGED SINCE HIS FINAL-TYPE PHYSICAL EXAMINATION FOR REGISTRANTS IN
CLASS IV-E, THE CAMP PHYSICIAN SHALL EXAMINE HIM WITH REFERENCE
THERETO.  IF THE ASSIGNEE IS NOT ACCEPTED FOR WORK OF NATIONAL
IMPORTANCE, THE CAMP DIRECTOR WILL INDICATE THE REASON THEREFOR, AND
THE ASSIGNEE, PENDING INSTRUCTIONS FROM THE DIRECTOR OF SELECTIVE
SERVICE, WILL BE RETAINED IN THE CAMP OR HOSPITALIZED WHERE
NECESSARY."  CF. NOTE 10. 

THIS PROVISION, EFFECTIVE BY AMENDMENT NO. 40 ON MARCH 16, 1942(7
F.R. 2093), WAS ELIMINATED ENTIRELY BY AMENDMENT NO. 210(9 F.R. 1416),
EFFECTIVE FEBRUARY 2, 1944, A LITTLE MORE THAN TWO MONTHS PRIOR TO THE
DATE SPECIFIED FOR DODEZ TO REPORT FOR WORK, NAMELY, APRIL 21, 1944;
BUT WAS RESTORED IN MODIFIED FORM ON JUNE 7, 1944, BY AMENDMENT NO.
236(9 F.R. 6207), NEARLY TWO MONTHS BEFORE GIBSON WAS ORDERED TO REPORT
ON AUGUST 21 OF THAT YEAR. 

FN9  A CONFESSION OF ERROR ON THE PART OF THE UNITED STATES "DOES NOT
RELIEVE THIS COURT OF THE PERFORMANCE OF THE JUDICIAL FUNCTION.  THE
CONSIDERED JUDGMENT OF THE LAW ENFORCEMENT OFFICERS THAT REVERSIBLE
ERROR HAS BEEN COMMITTED IS ENTITLED TO GREAT WEIGHT, BUT OUR JUDICIAL
OBLIGATIONS COMPEL US TO EXAMINE INDEPENDENTLY THE ERRORS CONFESSED." 
YOUNG V. UNITED STATES, 315 U.S. 257, 258-259. 

FN10  THE CONTENTION IS THAT SEC. 653.11(C) OF THE REGULATIONS AS IT
THEN STOOD, SEE NOTE 8, PROVIDED FOR PHYSICAL EXAMINATION AT THE CAMP
AND POSSIBLE REJECTION THERE ONLY IF THE REGISTRANT ON REPORTING
INDICATED A CHANGE IN HIS PHYSICAL CONDITION AND THAT THIS WAS
EFFECTIVE ONLY AS TO PERSONS SUSTAINING SUCH A CHANGE, NOT TO OTHERS,
OF WHOM FALBO WAS ONE.  THE ARGUMENT ASSUMES THAT THE REGISTRANT'S
ACTUAL CONDITION, NOT THE POSSIBILITY THAT A CHANGE MIGHT OCCUR AND BE
FOUND IN ANY CASE, WAS CONTROLLING NOT ONLY TO DETERMINE THE OUTCOME OF
THE EXAMINATION, BUT TO FORECLOSE THE POSSIBILITY THAT CHANGE MIGHT BE
"INDICATED" AND, IN THAT EVENT, FINAL DETERMINATION OF ACCEPTABILITY
WOULD BE MADE AFTER THE EXAMINATION. 

FN11  THE REGULATION CLEARLY CONTEMPLATED THAT, UPON RECEIPT OF SUCH
INSTRUCTIONS FROM THE DIRECTOR OF SELECTIVE SERVICE, THE REGISTRANT
MIGHT BE REJECTED OR RELEASED. 

FN12  THE DECISION WAS RENDERED JANUARY 3, 1944.  THE BASIC CHANGES
IN THE REGULATIONS WERE MADE JANUARY 10, 1944.  SEE TEXT INFRA AT NOTES
13-17. 

FN13  AFTER A REGISTRANT HAS BEEN CLASSIFIED IV-E HE IS GIVEN A
PREINDUCTION PHYSICAL EXAMINATION.  REG. SECS. 629.1, 629.2.  IF FOUND
ACCEPTABLE FOR SERVICE HE IS ISSUED A CERTIFICATE OF FITNESS.  REG.
SEC. 629.32.  THEREAFTER THE LOCAL BOARD NOTIFIES THE DIRECTOR OF
SELECTIVE SERVICE THAT THE REGISTRANT IS AVAILABLE FOR ASSIGNMENT TO
WORK OF NATIONAL IMPORTANCE, REG. SEC. 652.1, AND SUCH AN ASSIGNMENT IS
SENT TO THE LOCAL BOARD.  UPON RECEIPT THEREOF, THE LOCAL BOARD ISSUES
TO THE REGISTRANT AN ORDER TO REPORT FOR WORK OF NATIONAL IMPORTANCE,
COMMANDING HIM TO REPORT AT A DESIGNATED TIME AND PLACE, REG. SEC.
652.11.  WHEN THE REGISTRANT REPORTS, TRANSPORTATION TO A CAMP FOR WORK
OF NATIONAL IMPORTANCE IS FURNISHED, REG. SEC. 652.12.  THEREAFTER HE
"IS UNDER THE JURISDICTION OF THE CAMP TO WHICH HE IS ASSIGNED."  THE
LOCAL BOARD THEN CAN TAKE NO FURTHER STEPS WITH REGARD TO SUCH
REGISTRANT WITHOUT INSTRUCTIONS FROM THE DIRECTOR OF SELECTIVE SERVICE,
BUT SHOULD REPORT ANY INFORMATION TO THE DIRECTOR OF SELECTIVE SERVICE
WHICH MIGHT AFFECT THE REGISTRANT'S STATUS, REG. SEC. 652.13. 

UPON ARRIVAL AT THE CAMP THE REGISTRANT (NOW CALLED ASSIGNEE IN THE
REGULATIONS) IS GIVEN A PHYSICAL EXAMINATION, ALTHOUGH AT THE TIME THE
CASE OF DODEZ AROSE SPECIFIC PROVISION FOR SUCH AN EXAMINATION WAS NOT
MADE IN THE REGULATIONS.  SEE NOTE 8.  IT WAS MERELY PROVIDED THAT "THE
CAMP DIRECTOR SHALL, ON THE BOTTOM OF PAGE 4 OF THE ORIGINAL AND FIRST
COPY OF THE REPORT OF PHYSICAL EXAMINATION AND INDUCTION (FORM 221),
PLACE A STATEMENT THAT A REGISTRANT IS ACCEPTED FOR WORK OF NATIONAL
IMPORTANCE AT THE CIVILIAN PUBLIC SERVICE CAMP TO WHICH THE REGISTRANT
HAS BEEN ASSIGNED."  REG. SEC. 653.11(B).  HOWEVER, THIS REGULATION
SUBSEQUENTLY WAS AMENDED IN THE FORM APPLICABLE TO THE CASE OF GIBSON. 
SEE NOTE 28 INFRA. 

FN14  THE STATUTE, IN SO FAR AS IS NOW MATERIAL, PROVIDED:  "ANY
REGISTRANT WITHIN THE CATEGORIES HEREIN DEFINED WHEN IT APPEARS THAT
HIS INDUCTION WILL SHORTLY OCCUR SHALL, UPON REQUEST, BE ORDERED BY HIS
LOCAL BOARD IN ACCORDANCE WITH SCHEDULES AUTHORIZED BY THE SECRETARY OF
WAR, THE SECRETARY OF THE NAVY, AND THE DIRECTOR OF SELECTIVE SERVICE,
TO ANY REGULARLY ESTABLISHED INDUCTION STATION FOR A PREINDUCTION
PHYSICAL EXAMINATION, SUBJECT TO REEXAMINATIONS. 

"THE COMMANDING OFFICER OF SUCH INDUCTION STATION WHERE SUCH PHYSICAL
EXAMINATION IS CONDUCTED UNDER THIS PROVISION SHALL ISSUE TO THE
REGISTRANT A CERTIFICATE SHOWING HIS PHYSICAL FITNESS OR LACK THEREOF,
AND THIS EXAMINATION SHALL BE ACCEPTED BY THE LOCAL BOARD, SUBJECT TO
PERIODIC REEXAMINATION.  THOSE REGISTRANTS WHO ARE CLASSIFIED AS I-A AT
THE TIME OF SUCH PHYSICAL EXAMINATION AND WHO ARE FOUND PHYSICALLY
QUALIFIED FOR MILITARY SERVICE AS A RESULT THEREOF, SHALL REMAIN SO
CLASSIFIED AND REPORT FOR INDUCTION IN REGULAR ORDER." 

FN15  COMPARE THE PROCEDURE OUTLINED IN BILLINGS V. TRUESDELL, 321
U.S. 542. 

FN16  SEE NOTES 18, 19, INFRA, AND TEXT FOR THE PRINCIPAL CHANGES. 

FN17  THESE ARE NOTED SPECIFICALLY INFRA AT NOTE 28 AND TEXT. 

FN18  PERTINENTLY THE BASIC REGULATION PROVIDED:  "EVERY REGISTRANT,
BEFORE HE IS ORDERED TO REPORT FOR INDUCTION, SHALL BE GIVEN A PRE
INDUCTION PHYSICAL EXAMINATION UNDER THE PROVISIONS OF THIS PART UNLESS
(1) HE SIGNS A REQUEST FOR IMMEDIATE INDUCTION (FORM 219) OR (2) HE IS
A DELINQUENT...." 

FN19  BECAUSE SEC. 653.11 AS CHANGED BY AMENDMENT NO. 210 IS CRUCIAL
IN DODEZ' CASE, THE EXACT LANGUAGE IS QUOTED:  "(A) WHEN THE ASSIGNEE
HAS REPORTED TO CAMP, THE CAMP DIRECTOR SHALL COMPLETE THE ORDER TO
REPORT FOR WORK OF NATIONAL IMPORTANCE (FORM 50).  FOUR COPIES OF THE
COMPLETED ORDER TO REPORT FOR WORK OF NATIONAL IMPORTANCE (FORM 50)
SHALL BE SENT TO THE DIRECTOR OF SELECTIVE SERVICE; ONE COPY WILL BE
RETAINED BY THE CAMP DIRECTOR.  THE DIRECTOR OF SELECTIVE SERVICE WILL
FORWARD TWO COPIES OF THE ORDER TO REPORT FOR WORK OF NATIONAL
IMPORTANCE (FORM 50) TO THE APPROPRIATE STATE DIRECTOR OF SELECTIVE
SERVICE, WHO WILL RETAIN ONE COPY FOR HIS FILES AND MAIL THE OTHER COPY
TO THE LOCAL BOARD FOR FILING IN THE REGISTRANT'S COVER SHEET (FORM
53). 

"(B)  THE CAMP DIRECTOR SHALL, ON THE BOTTOM OF PAGE 4 OF THE
ORIGINAL AND FIRST COPY OF THE REPORT OF PHYSICAL EXAMINATION AND
INDUCTION (FORM 221), PLACE A STATEMENT THAT A REGISTRANT IS ACCEPTED
FOR WORK OF NATIONAL IMPORTANCE AT THE CIVILIAN PUBLIC SERVICE CAMP TO
WHICH THE REGISTRANT HAS BEEN ASSIGNED.  THE STATEMENT SHALL SPECIFY
THE DATE AND PLACE OF SUCH ACCEPTANCE AND SHALL BE SIGNED BY THE CAMP
DIRECTOR WHO SHALL RETAIN THE FIRST COPY OF THE REPORT OF PHYSICAL
EXAMINATION AND INDUCTION (FORM 221) AND SHALL FORWARD THE ORIGINAL TO
THE DIRECTOR OF SELECTIVE SERVICE. 

"(C)  UPON RECEIVING NOTICE THAT A REGISTRANT HAS BEEN ACCEPTED FOR
WORK OF NATIONAL IMPORTANCE, THE LOCAL BOARD SHALL NOT CHANGE HIS
CLASSIFICATION BUT SHALL NOTE THE FACT OF HIS ACCEPTANCE FOR SUCH WORK
IN THE CLASSIFICATION RECORD (FORM 100). 

"(D)  IN THE EVENT AN ASSIGNEE DOES NOT REPORT TO THE CAMP AT THE
TIME PRESCRIBED IN HIS ORDER TO REPORT FOR WORK OF NATIONAL IMPORTANCE
(FORM 50) OR PURSUANT TO THE INSTRUCTIONS OF THE LOCAL BOARD, THE CAMP
DIRECTOR WILL REPORT SUCH FACT TO THE DIRECTOR OF SELECTIVE SERVICE." 

FN20  THE TRIAL COURT PERMITTED DODEZ TO INTRODUCE DE NOVO EVIDENCE
INTENDED TO SHOW THAT AS OF THE TIME OF THE TRIAL HE WAS A MINISTER. 
BUT THE COURT, OVER OBJECTION, DECLINED TO ALLOW THIS EVIDENCE TO GO TO
THE JURY. 

FN21  THE QUESTION WAS ALSO RAISED BY MOTION FOR A DIRECTED VERDICT,
WHICH WAS OVERRULED. 

FN22  IN EACH CASE THE TENDERED DEFENSES WERE SUBSTANTIALLY TWO,
NAMELY, (1) THAT A FULL AND FAIR HEARING HAD BEEN DENIED IN THE
SELECTIVE SERVICE PROCEEDINGS, PARTICULARLY BEFORE THE LOCAL BOARD; AND
(2) THAT THE UNDISPUTED EVIDENCE WOULD SUSTAIN NO OTHER CONCLUSION THAN
THAT THE REGISTRANT WAS A MINISTER OF RELIGION.  IN EACH CASE ALSO
EVIDENCE WAS TENDERED AND EXCLUDED IN THE TRIAL COURT TO SUSTAIN THE
FIRST OF THESE DEFENSES.  APPROPRIATE DETERMINATION OF THAT DEFENSE
WOULD REQUIRE NOT ONLY RECEPTION AND CONSIDERATION OF EVIDENCE PROPERLY
TENDERED UPON THE ISSUE, BUT ALSO IN CONSEQUENCE THEREOF DETERMINATION
OF ISSUES OF FACT, INCLUDING CREDIBILITY AND INFERENTIAL CONCLUSIONS,
PROPERLY TO BE MADE IN THE TRIAL COURT RATHER THAN BY AN APPELLATE
TRIBUNAL.  SINCE ISSUES OF CREDIBILITY ALSO MAY BE INVOLVED IN
DETERMINING WHETHER THE EVIDENCE WOULD SUPPORT NO OTHER CONCLUSION THAN
THAT THE REGISTRANT WAS A MINISTER, THAT QUESTION TOO IS MORE
APPROPRIATELY DETERMINABLE IN THE FIRST INSTANCE IN THE TRIAL COURT. 
MOREOVER, IT IS NOT CERTAIN THAT ANOTHER TRIAL WILL BE HAD OR THAT THE
IDENTICAL ISSUES WILL BE PRESENTED IF ONE IS HELD. 

FN23  SEE, E.G., IN RE MORRISSEY, 137 U.S. 157; IN RE MILLER, 114 F.
838; UNITED STATES V. REAVES, 126 F. 127; IN RE CARVER, 142 F. 623; IN
RE SCOTT, 144 F. 79; MOORE V. UNITED STATES, 159 F. 701; DILLINGHAM V.
BOOKER, 163 F. 696; UNITED STATES EX REL. LAIKUND V. WILLIFORD, 220 F.
291; EX PARTE ROMANO, 251 F. 762; EX PARTE TINKOFF, 254 F. 912; EX
PARTE KEREKES, 274 F. 870.  BUT CF. VER MEHREN V. SIRMYER, 36 F.2D 876;
EX PARTE BECK, 245 F. 967.  CF. KURTZ V. MOFFITT, 115 U.S. 487.    FN24
SEE IN RE GRIMLEY, 137 U.S. 147; STINGLE'S CASE, FED. CAS. NO. 13,458;
UNITED STATES EX REL. TURNER V. WRIGHT, FED. CAS. NO. 16,778.  SEE ALSO
CASES CITED IN NOTE 23. 

FN25  SEE NOTE 2. 

FN26  SEE TEXT AT NOTES 18, 19.  UNDER SEC. 653.11, AS REINTRODUCED,
THE PHYSICAL EXAMINATION AT THE CAMP WAS GIVEN TO ALL "ASSIGNEES,"
REGARDLESS OF WHETHER THEY INDICATED A CHANGE IN PHYSICAL CONDITION. 
CF. NOTE 8.    FN27  CF. NOTE 19, SEC. 653.11(B). 

FN28  THE ALTERATIONS MADE IN SEC. 653.11 BY AMENDMENT NO. 236 WILL
APPEAR FROM COMPARING THE TEXT OF THE SECTION PRIOR TO THE AMENDMENT,
SEE NOTE 19, WITH THE FOLLOWING QUOTED PORTIONS, FOLLOWING THE
AMENDMENT: 

"(B)  AS SOON AS POSSIBLE AFTER THE ASSIGNEE HAS REPORTED TO CAMP,
THE CAMP PHYSICIAN SHALL GIVE HIM A PHYSICAL EXAMINATION AND SHALL
DETERMINE WHETHER THERE HAS BEEN ANY CHANGE IN THE ASSIGNEE'S PHYSICAL
OR MENTAL CONDITION SINCE HIS PREINDUCTION PHYSICAL EXAMINATION.  IF A
CAMP PHYSICIAN IS NOT AVAILABLE, THE CAMP DIRECTOR, TO THE EXTENT THAT
HE IS CAPABLE OF DOING SO, SHALL, BY OBSERVING AND QUESTIONING THE
ASSIGNEE, MAKE SUCH DETERMINATION.  THE CAMP PHYSICIAN OR THE CAMP
DIRECTOR, AS THE CASE MAY BE, SHALL, ON THE BOTTOM OF PAGE 4 OF THE
ORIGINAL AND FIRST COPY OF THE REPORT OF PHYSICAL EXAMINATION AND
INDUCTION (FORM 221), MAKE A RECORD OF SUCH DETERMINATION. 

"(C)  IRRESPECTIVE OF THE DETERMINATION WHICH IS MADE AS A RESULT OF
THE EXAMINATION OF AN ASSIGNEE MADE UNDER THE PROVISIONS OF PARAGRAPH
(B) OF THIS SECTION, THE CAMP DIRECTOR SHALL, ON THE BOTTOM OF PAGE 4
OF THE ORIGINAL AND FIRST COPY OF THE REPORT OF PHYSICAL EXAMINATION
AND INDUCTION (FORM 221), PLACE A STATEMENT THAT A REGISTRANT IS
ACCEPTED FOR WORK OF NATIONAL IMPORTANCE AT THE CIVILIAN PUBLIC SERVICE
CAMP TO WHICH THE REGISTRANT HAS BEEN ASSIGNED.  THE STATEMENT SHALL
SPECIFY THE DATE AND PLACE OF SUCH ACCEPTANCE AND SHALL BE SIGNED BY
THE CAMP DIRECTOR WHO SHALL RETAIN THE FIRST COPY OF THE REPORT OF
PHYSICAL EXAMINATION AND INDUCTION (FORM 221) AND SHALL FORWARD THE
ORIGINAL TO THE DIRECTOR OF SELECTIVE SERVICE." 

THE REINTRODUCED PROVISION OF SEC. 653.11 BECAME SUBSECTION (B) OF
THE AMENDED SECTION AND THE FORMER SUBSECTION (B) BECAME SUBSECTION (C)
WITH THE ADDED INITIAL PROVISION, "IRRESPECTIVE OF THE DETERMINATION
...," ETC. 

FN29  THE REGULATION, SEC. 652.13, READS AS FOLLOWS:  "A REGISTRANT
IN CLASS IV-E WHO HAS REPORTED FOR WORK OF NATIONAL IMPORTANCE PURSUANT
TO THIS PART SHALL BE RETAINED IN CLASS IV-E BY THE LOCAL BOARD.  SUCH
REGISTRANT AFTER HE HAS LEFT THE LOCAL BOARD IN ACCORDANCE WITH SEC.
652.12 FOR WORK OF NATIONAL IMPORTANCE UNDER CIVILIAN DIRECTION IS
UNDER THE JURISDICTION OF THE CAMP TO WHICH HE IS ASSIGNED.  THE LOCAL
BOARD SHALL TAKE NO FURTHER STEPS WITH REGARD TO SUCH REGISTRANT
WITHOUT INSTRUCTIONS FROM THE DIRECTOR OF SELECTIVE SERVICE, BUT SHOULD
REPORT ANY INFORMATION TO THE DIRECTOR OF SELECTIVE SERVICE WHICH MIGHT
AFFECT THE REGISTRANT'S STATUS."  7 F.R. 112. 

FEBRUARY 1, 1942, AND THEREFORE WAS IN EFFECT AS TO FALBO AS WELL AS TO
ESTEP, SMITH, DODEZ AND GIBSON. 

FN30  THE GOVERNMENT DOES NOT URGE THAT GIBSON WAIVED HIS RIGHTS BY
SUBMITTING TO "INDUCTION," IN THE SENSE OF VOLUNTARILY SURRENDERING
THEM; IT IS RATHER THAT HE ACTED AT HIS PERIL IN TAKING STEPS BEYOND
THOSE REQUIRED TO COMPLETE THE ADMINISTRATIVE REMEDIAL PROCESS, EVEN
THOUGH HE MISTAKENLY THOUGHT THEM NECESSARY FOR THAT PURPOSE.  THE
ARGUMENT IS ESSENTIALLY ONE OF FORFEITURE RATHER THAN OF WAIVER.  THE
FACTS WOULD SUSTAIN NO IMPLICATION OF INTENTION TO SUBMIT TO
"INDUCTION" OR TO SURRENDER ANY RIGHTS. 

FN31  IT IS GIBSON'S POSITION THAT HAD HE NOT GONE TO THE CIVILIAN
PUBLIC SERVICE CAMP AND SUBJECTED HIMSELF TO THE PHYSICAL EXAMINATION
GIVEN BY THE CAMP PHYSICIAN, SEE NOTE 29, THE COURTS MIGHT SUBSEQUENTLY
HAVE HELD THAT IN A PROSECUTION UNDER SEC. 11 HE WAS FORECLOSED BY THE
FALBO DOCTRINE FROM MAKING THE DEFENSE THAT HIS CLASSIFICATION WAS
ILLEGAL.  HE SAYS FURTHER THAT THE REGULATIONS APPLICABLE TO FALBO AND
THOSE APPLICABLE TO HIM WERE SO SIMILAR THAT NO REASONABLE PERSON
READING THEM COULD HAVE DETERMINED THAT UNDER THE LATTER IT WAS NOT
NECESSARY TO UNDERGO THE PHYSICAL EXAMINATION GIVEN AT THE CAMP IN
ORDER TO COMPLETE THE ADMINISTRATIVE PROCESS.  INDEED, HE ASSERTS THAT
IN SOME WAYS THE LATER REGULATIONS WERE MORE COMPELLING THAN THOSE
APPLICABLE TO FALBO, SINCE AT THE TIME FALBO WAS ORDERED TO REPORT THE
PHYSICAL EXAMINATION WAS REQUIRED ONLY FOR THOSE WHO INDICATED A CHANGE
IN THEIR PHYSICAL CONDITION, WHEREAS WHEN HE WAS ORDERED TO REPORT ALL
ASSIGNEES WERE REQUIRED TO BE GIVEN PHYSICAL EXAMINATIONS.  CF. NOTES
8, 26. 

FN32  SEE SEC. 11, NOTE 2 SUPRA. 

FN33  SECTION 11 OF THE SELECTIVE TRAINING AND SERVICE ACT READS IN
PART:  "NO PERSON SHALL BE TRIED BY ANY MILITARY OR NAVAL COURT MARTIAL
IN ANY CASE ARISING UNDER THIS ACT UNLESS SUCH PERSON HAS BEEN ACTUALLY
INDUCTED FOR THE TRAINING AND SERVICE PRESCRIBED UNDER THIS ACT OR
UNLESS HE IS SUBJECT TO TRIAL BY COURT MARTIAL UNDER LAWS IN FORCE
PRIOR TO THE ENACTMENT OF THIS ACT."  IT WAS HELD IN THE BILLINGS CASE
THAT IN VIEW OF THE LEGISLATIVE HISTORY CONGRESS COULD NOT BE PRESUMED
"TO HAVE RESTORED BY THE SECOND 'UNLESS' CLAUSE IN SEC. 11 WHAT IT TOOK
AWAY BY THE FIRST 'UNLESS' CLAUSE."  SECTION 11 RATHER INDICATED "A
PURPOSE TO VEST IN THE CIVIL COURTS EXCLUSIVE JURISDICTION OVER ALL
VIOLATIONS OF THE ACT PRIOR TO ACTUAL INDUCTION."  321 U.S. AT 547. 

FN34  SEE NOTES 23, 24, SUPRA, AND TEXT. 

FN35  IBID. 

FN36 BILLINGS V. TRUESDELL, 321 U.S. 542; AND SEE THE AUTHORITIES
CITED IN NOTE 24, SUPRA. 

FN37  CF. WALES V. WHITNEY, 114 U.S. 564; STALLINGS V. SPLAIN, 253
U.S. 339; MCNALLY V. HILL, 293 U.S. 131, 137-138; WEBER V. SQUIER, 315
U.S. 810; TORNELLO V. HUDSPETH, 318 U.S. 792; ZIMMERMAN V. WALKER, 319
U.S. 744; UNITED STATES EX REL. INNES V. CRYSTAL, 319 U.S. 755; UNITED
STATES EX REL. LYNN V. DOWNER, 322 U.S. 756; BAKER V. HUNTER, 323 U.S.
740. 

FN38  IN THIS CASE, AS IN THE ESTEP AND SMITH CASES, THE UNITED
STATES IN A CRIMINAL PROSECUTION IS ASKING JUDICIAL ENFORCEMENT OF A
DRAFT BOARD'S COMMAND OR ORDER.  IN THE ESTEP CASE, THOUGH THE ACT
PROVIDED THAT THE ORDER OF THE DRAFT BOARD SHOULD BE "FINAL," LIMITED
JUDICIAL REVIEW WAS PERMITTED.  SECTION 11 OF THE SELECTIVE TRAINING
AND SERVICE ACT DOES NOT DISTINGUISH BETWEEN ONE ORDER OF A BOARD AND
ANOTHER.  PROVIDED THAT HE HAS EXHAUSTED HIS ADMINISTRATIVE REMEDIES,
THE REGISTRANT WHO HAS NOT BEEN ACTUALLY INDUCTED INTO THE ARMED FORCES
MAY IN DEFENSE TO A CRIMINAL PROSECUTION ATTACK A BOARD'S ORDER AS
ARBITRARY AND ILLEGAL. 

FN39  SEE NOTE 30. 

MR. JUSTICE MURPHY JOINS IN THE OPINION OF THE COURT FOR THE REASONS
STATED THEREIN AND FOR THE ADDITIONAL REASONS SET FORTH IN HIS
DISSENTING OPINION IN FALBO V. UNITED STATES, 320 U.S. 549, 555, AND IN
HIS CONCURRING OPINION IN ESTEP V. UNITED STATES, 327 U.S. 114, 125. 
..END :


















ILLINOIS V. CAMPBELL, 329 U.S. 362 


NO. 35.  ARGUED MARCH 28, 1946.  REARGUED NOVEMBER 19, 1946.  - DECIDED
DECEMBER 23, 1946.  - 391 ILL. 29, 62 N.E.2D 537, AFFIRMED. 


HAVING FILED NOTICE OF A LIEN FOR STATE UNEMPLOYMENT COMPENSATION
TAXES UNDER JONES ILL. STAT. ANN., 1944, SEC. 45.154, CREATING A LIEN
"UPON ALL THE PERSONAL PROPERTY" OF AN EMPLOYER "USED BY HIM IN
CONNECTION WITH HIS  ...  BUSINESS," THE STATE DIRECTOR OF LABOR
BROUGHT SUIT IN A STATE COURT TO ENFORCE THE LIEN, ALLEGING THAT THE
EMPLOYER WAS INSOLVENT AND THAT A CREDITOR HAD OBTAINED JUDGMENT AND
EXECUTION AGAINST HIM SUBSEQUENT TO THE FILING OF NOTICE OF THE LIEN. 
THE COURT ENJOINED ALL CREDITORS FROM INTERFERING WITH THE EMPLOYER'S
PROPERTY AND APPOINTED A RECEIVER, WHO TOOK CHARGE OF ALL HIS ASSETS. 
THEREAFTER, THE COLLECTOR OF INTERNAL REVENUE FILED CLAIMS ON BEHALF OF
THE UNITED STATES FOR FEDERAL SOCIAL SECURITY TAXES UNDER SEC. 1400 OF
THE INTERNAL REVENUE CODE AND AN INTERVENING PETITION ALLEGING THAT THE
DEBTOR WAS INSOLVENT AND CLAIMING PRIORITY OF PAYMENT.  THE RECEIVER
LIQUIDATED ALL OF THE DEBTOR'S ASSETS AND REALIZED LESS THAN ENOUGH TO
SATISFY THE CLAIMS OF CREDITORS.  HELD: 

1.  UNDER R.S. SEC. 3466, A CLAIM OF THE UNITED STATES FOR SOCIAL
SECURITY TAXES UNDER SEC. 1400 OF THE INTERNAL REVENUE CODE TAKES
PRIORITY OVER A CLAIM OF A STATE FOR TAXES UNDER A STATE UNEMPLOYMENT
COMPENSATION ACT.  ILLINOIS V. UNITED STATES, 328 U.S. 8.  PP. 366
367. 

2.  THE RECEIVER HAVING BEEN PLACED IN CONTROL OF ALL THE DEBTOR'S
ASSETS AND HAVING LIQUIDATED ALL OF THEM, AND ANOTHER CREDITOR HAVING
INTERVENED, THE PROCEEDING MUST BE TREATED AS A GENERAL EQUITY
RECEIVERSHIP.  PP. 368-369. 

3.  THE DEBTOR BEING INSOLVENT AND A RECEIVER HAVING BEEN APPOINTED
TO TAKE CHARGE OF HIS PROPERTY, AN ACT OF BANKRUPTCY WAS COMMITTED
WITHIN THE MEANING OF SEC. 3 OF THE BANKRUPTCY ACT, THUS ENTITLING THE
UNITED STATES TO THE PRIORITY GIVEN BY R.S. SEC. 3466.  PP. 367-370. 

4.  UNDER JONES ILL. STAT. ANN., 1944, SEC. 45.154(E), MAKING IT
UNNECESSARY FOR THE DIRECTOR OF LABOR TO DESCRIBE THE PROPERTY TO WHICH
THE LIEN IS TO ATTACH AND REQUIRING THE EMPLOYER TO FILE A SCHEDULE OF
"ALL PERSONAL PROPERTY  ...  USED IN CONNECTION WITH HIS  ...
BUSINESS," THE ILLINOIS LIEN WAS NOT SUFFICIENTLY SPECIFIC OR PERFECTED
TO DEFEAT THE PRIORITY OF THE UNITED STATES, SINCE NEITHER THE NOTICE
OF LIEN NOR THE APPOINTMENT OF THE RECEIVER MADE DEFINITE AND CERTAIN
THE PROPERTY TO WHICH THE LIEN WAS TO ATTACH.  PP. 370-376. 

ILLINOIS EX REL. GORDON, DIRECTOR OF LABOR, V. CAMPBELL, COLLECTOR OF
INTERNAL REVENUE. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

IN A SUIT BY THE DIRECTOR OF LABOR OF ILLINOIS TO ENFORCE A LIEN FOR
UNEMPLOYMENT COMPENSATION CONTRIBUTIONS DUE THE STATE, A GENERAL EQUITY
RECEIVER WAS APPOINTED AND THE COLLECTOR OF INTERNAL REVENUE INTERVENED
AND FILED A CLAIM FOR SOCIAL SECURITY TAXES DUE THE UNITED STATES,
CLAIMING PRIORITY OF PAYMENT UNDER R.S. SEC. 3466.  THE ILLINOIS
SUPREME COURT HELD THAT THE UNITED STATES WAS ENTITLED TO PRIORITY. 
391 ILL. 29, 62 N.E.2D 537.  THIS COURT GRANTED CERTIORARI, 327 U.S.
772, AND, AFTER HEARING ARGUMENT AND DISPOSING OF A COMPANION CASE
(ILLINOIS V. UNITED STATES, 328 U.S. 8), RESTORED THE CASE TO THE
DOCKET FOR REARGUMENT BEFORE A FULL BENCH.  AFFIRMED, P. 376. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS COMPANION TO ILLINOIS EX REL GORDON V. UNITED STATES,
328 U.S. 8, DECIDED LAST TERM, BUT BRINGS FOR SETTLEMENT OTHER PROBLEMS
RAISED BY A CONFLICT OF CLAIMS BETWEEN THE UNITED STATES AND THE STATE
OF ILLINOIS.  THE CONFLICT CONCERNS WHETHER ONE OR THE OTHER CLAIMANT
IS ENTITLED TO PRIORITY OF PAYMENT FROM ASSETS OF A COMMON DEBTOR.  THE
ILLINOIS SUPREME COURT DEALT WITH BOTH CASES IN A SINGLE OPINION.  391
ILL. 29, 62 N.E.2D 537.  CERTIORARI WAS GRANTED IN EACH.  327 U.S. 771;
327 U.S. 772.  ON THE SAME DAY THAT ILLINOIS EX REL. GORDON V. UNITED
STATES, SUPRA, WAS DECIDED, THIS CASE WAS RESTORED TO THE DOCKET AND
ASSIGNED FOR REARGUMENT BEFORE A FULL BENCH, BECAUSE OF THE PRESENCE OF
THE QUESTIONS NOT DETERMINED BY THAT DECISION. 

THE CONTROVERSY AROSE ON JUNE 29, 1942, WHEN THE DIRECTOR OF LABOR OF
ILLINOIS BROUGHT SUIT IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, TO
ENFORCE AGAINST THE CHICAGO WASTE AND TEXTILE COMPANY A STATUTORY LIEN
FOR UNEMPLOYMENT COMPENSATION CONTRIBUTIONS DUE THE STATE.  ASSOCIATED
AGENCIES, INC.,  FN1  WAS A CREDITOR OF THE CHICAGO WASTE AND TEXTILE
COMPANY.  IN HIS COMPLAINT THE DIRECTOR ALLEGED THAT ASSOCIATED
AGENCIES HAD OBTAINED A JUDGMENT AGAINST ITS DEBTOR IN THE MUNICIPAL
COURT OF CHICAGO AND THAT EXECUTION HAD ISSUED ON THIS JUDGMENT JUNE 3,
1942, BUT THAT THE INTEREST OF ASSOCIATED AGENCIES WAS SUBORDINATE TO
THAT OF THE LIEN SOUGHT TO BE FORECLOSED.  THIS, "FOR THE REASON THAT
THE EXECUTION UPON SAID JUDGMENT WAS ISSUED LONG AFTER NOTICE OF THE
LIEN OF THE DIRECTOR OF LABOR WAS RECORDED WITH THE RECORDER OF
DEEDS."  FN2  THE DIRECTOR ALLEGED FURTHER, UPON INFORMATION AND
BELIEF, THAT THE CHICAGO WASTE AND TEXTILE COMPANY WAS INSOLVENT AND
THAT "THE PERSONAL PROPERTY SUBJECT TO THE LIEN HEREIN BEING
FORECLOSED, IS SCANT SECURITY FOR THE DEBT DUE THE DIRECTOR OF LABOR
...  AND THAT UNLESS A RECEIVER BE APPOINTED FOR ALL OF THE SAID
PROPERTY, PENDING A FULL AND COMPLETE HEARING UPON THE ISSUES HEREIN,
THE PLAINTIFF WILL SUFFER FINANCIAL LOSS AND SAID PROPERTY WILL BE
WASTED." 

GRANTING THE IMMEDIATE RELIEF REQUESTED, THE CIRCUIT COURT ENJOINED
ALL CREDITORS OF THE CHICAGO WASTE AND TEXTILE COMPANY FROM INTERFERING
WITH THE PROPERTY OF THE COMPANY, WHETHER BY JUDICIAL ACTION  FN3  OR
OTHERWISE, AND ALSO APPOINTED A RECEIVER "FOR THE PROPERTY OF THE
CHICAGO WASTE AND TEXTILE COMPANY." 

SUBSEQUENTLY RESPONDENT, THE COLLECTOR OF INTERNAL REVENUE FOR THE
FIRST DISTRICT OF ILLINOIS, FILED CLAIMS ON BEHALF OF THE UNITED STATES
AMOUNTING TO $1,954.07 PLUS INTEREST.  OF THIS AMOUNT, $522.91 WAS FOR
FEDERAL INSURANCE CONTRIBUTION TAXES AND $1,431.16 WAS FOR FEDERAL
UNEMPLOYMENT TAXES.  OF THE FEDERAL INSURANCE CONTRIBUTION TAXES,
$229.91 REPRESENTED EMPLOYEES' TAXES, SEE HELVERING V. DAVIS, 301 U.S.
619, COLLECTED BY THE EMPLOYER UNDER STATUTORY WITHHOLDING PROVISIONS. 
I.R.C. SECS. 1400, 1401.  THE COLLECTOR ALSO FILED AN INTERVENING
PETITION, ALLEGING THAT THE DEBTOR WAS INSOLVENT AND ASKING THAT THE
CLAIMS OF THE UNITED STATES BE ALLOWED AS CLAIMS ENTITLED TO PRIORITY
OF PAYMENT IMMEDIATELY AFTER COSTS OF ADMINISTRATION AND BEFORE PAYMENT
OF OTHER CREDITORS.  THE DIRECTOR OF LABOR ANSWERED, DENYING THAT THE
CLAIMS OF THE UNITED STATES WERE ENTITLED TO PRIORITY OVER THE CLAIMS
OF ILLINOIS. 

THE RECEIVER REALIZED $677.81 FROM SALE OF THE DEBTOR'S PROPERTY AND
THIS AMOUNT WAS DEPOSITED WITH THE CLERK OF THE CIRCUIT COURT.  A
HEARING WAS HELD, AND THE COURT ORDERED THAT NINETY PER CENT OF THE
FUNDS ON DEPOSIT BE GIVEN TO THE DIRECTOR OF LABOR AND THE OTHER TEN
PER CENT TO THE UNITED STATES.  THE COLLECTOR APPEALED TO THE APPELLATE
COURT FOR THE FIRST DISTRICT.  ON MOTION OF THE APPELLEE, THE CAUSE WAS
TRANSFERRED TO THE SUPREME COURT OF ILLINOIS ON JURISDICTIONAL
GROUNDS. 

THE STATE SUPREME COURT HELD THAT THE UNITED STATES WAS ENTITLED TO
PRIORITY OVER THE STATE OF ILLINOIS AS TO ITS CLAIM FOR FEDERAL
INSURANCE CONTRIBUTION TAXES.  FN4  WHETHER IT WAS CORRECT TO AWARD
THIS PRIORITY IS THE ISSUE WE NOW HAVE TO DECIDE. 

ILLINOIS EX REL. GORDON V. UNITED STATES, 328 U.S. 8, HELD THAT IN
CIRCUMSTANCES WHICH CALLED INTO APPLICATION REV. STAT. SEC. 3466, 31
U.S.C. SEC. 191, THE CLAIMS OF THE UNITED STATES FOR FEDERAL INSURANCE
CONTRIBUTIONS TAXES UNDER TITLE 8 OF THE SOCIAL SECURITY ACT, 49 STAT.
620, 636, AND FOR FEDERAL UNEMPLOYMENT COMPENSATION TAXES UNDER TITLE 9
OF THE SOCIAL SECURITY ACT, 49 STAT. AT 639, HAD PRIORITY OVER CLAIMS
OF ILLINOIS FOR TAXES UNDER ITS UNEMPLOYMENT COMPENSATION ACT.  FN5
THAT DECISION IS CONTROLLING, OF COURSE, UPON THE SAME FEATURE OF THIS
CASE, ALTHOUGH THE FEDERAL INSURANCE CONTRIBUTIONS TAXES CLAIMED BY THE
UNITED STATES ARISE UNDER THE 1939 AMENDMENTS OF THE SOCIAL SECURITY
ACT, RATHER THAN, AS IN THE CASE LAST TERM, UNDER THE ORIGINAL ACT
ITSELF.  COMPARE SECS. 801, 802, 804, 807(C) OF THE ORIGINAL SOCIAL
SECURITY ACT, 49 STAT. 620, WITH SECS. 1400, 1401, 1410, AND 1430 OF
THE INTERNAL REVENUE CODE, 53 STAT. 175, AS AMENDED BY 53 STAT. 1381. 

                            I. 

BUT THE STATE URGES THAT SEC. 3466 DOES NOT APPLY IN THE FACTS OF
THIS CASE.  THIS ARGUMENT, AS WELL AS ANOTHER, THAT THE LIEN OF THE
STATE WAS SO SPECIFIC AND PERFECTED AS TO DEFEAT THE PRIORITY, IF ANY,
OF THE UNITED STATES UNDER REV. STAT. SEC. 3466, MUST BE MET BEFORE THE
CASE CAN BE AFFIRMED ON THE AUTHORITY OF ILLINOIS EX REL. GORDON V.
UNITED STATES, SUPRA. 

REV. STAT. SEC. 3466 PROVIDES: 

"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 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." 

THE FIFTH ACT OF BANKRUPTCY, WHICH IS THE ONE ON WHICH THE GOVERNMENT
RELIES AS HAVING BROUGHT SEC. 3466 INTO OPERATION, CONSISTS OF A
PERSON'S  FN6  HAVING, 

"(5) WHILE INSOLVENT OR UNABLE TO PAY HIS DEBTS AS THEY MATURE,
PROCURED, PERMITTED, OR SUFFERED VOLUNTARILY OR INVOLUNTARILY THE
APPOINTMENT OF A RECEIVER OR TRUSTEE TO TAKE CHARGE OF HIS PROPERTY
..."  52 STAT. 844, 11 U.S.C. SEC. 21(A). 

THE STATE CONTENDS, FIRST, THAT THE RECEIVER APPOINTED AT ITS
INSTANCE WAS NOT A RECEIVER WITHIN THE MEANING OF THIS PROVISION AND,
SECOND, THAT THE CHICAGO WASTE AND TEXTILE COMPANY WAS NOT SHOWN BY THE
RECORD TO BE INSOLVENT. 

THIS COURT HAS NOTED THAT THE VIEW HAS BEEN EXPRESSED THAT TO SATISFY
THE FIFTH ACT OF BANKRUPTCY "THE RECEIVERSHIP MUST BE GENERAL, AS
CONTRASTED WITH A RECEIVERSHIP INCIDENTAL TO THE ENFORCEMENT OF A
LIEN."  DUPARQUET HUOT & MONEUSE CO. V. EVANS, 297 U.S. 216, 224.  FN7
IT HAS NOT DETERMINED THE CORRECTNESS OF THAT VIEW, EMIL V. HANLEY, 318
U.S. 515, 521, N. 5, NOR NEED WE DO SO NOW.  FOR, THOUGH THE RECEIVER
WAS APPOINTED AT THE INSTANCE OF A SECURED CREDITOR, AS IN UNITED
STATES V. TEXAS, 314 U.S. 480, 483-484, "ANY LIMITATIONS UPON THE
OPERATION OF SEC. 3466(WHICH) MIGHT OTHERWISE HAVE FLOWED FROM THIS
CIRCUMSTANCE  ...  WERE REMOVED BY THE SUBSEQUENT CHARACTER OF THE
PROCEEDING."  THE RECEIVER WAS PLACED IN CONTROL OF ALL THE ASSETS OF
THE CHICAGO WASTE AND TEXTILE COMPANY, AND ALL OF THE ASSETS WERE
LIQUIDATED.  AT LEAST ONE PARTY OTHER THAN THE SECURED CREDITOR WHICH
HAD INSTITUTED THE PROCEEDING, NAMELY, THE UNITED STATES, WAS ALLOWED
TO INTERVENE AND WAS HEARD.  "WE THINK THAT REALITIES REQUIRE US TO
TREAT THE PROCEEDING AS A GENERAL EQUITY RECEIVERSHIP WITHIN THE SCOPE
OF SEC. 3466."  UNITED STATES V. TEXAS, SUPRA. 

MOREOVER, IT IS QUESTIONABLE WHETHER THE FACT OF INSOLVENCY IS
PROPERLY CONTESTABLE BY THE STATE OF ILLINOIS.  THE RECEIVER WAS
APPOINTED UPON THE ALLEGATIONS OF ITS COMPLAINT, WHICH INCLUDED
INSOLVENCY, AND THE STATE ADMITTED IN ITS ANSWER TO THE GOVERNMENT'S
INTERVENING PETITION THAT THE DEBTOR WAS INSOLVENT.  ALTHOUGH
ORDINARILY THE DOCTRINE OF ESTOPPEL OR THAT PART OF IT WHICH PRECLUDES
INCONSISTENT POSITIONS IN JUDICIAL PROCEEDINGS IS NOT APPLIED TO
STATES,  FN8  IN THE PRESENT LITIGATION ILLINOIS IS IN THE POSITION OF
ANY LIEN CREDITOR. 

IT WOULD SEEM THEREFORE THAT IN THESE CIRCUMSTANCES THE STATE SHOULD
BE HELD ESTOPPED TO CONTEST INSOLVENCY.  BUT IN ANY EVENT THE RECORD
DEMONSTRATES THAT THE DEBTOR WAS INSOLVENT AT THE TIME OF THE
APPOINTMENT OF THE RECEIVER, FOR WHEN ITS PROPERTY WAS LIQUIDATED THERE
WAS NOT ENOUGH TO SATISFY THE CLAIMS OF THE TWO CONTESTING CREDITORS AT
THE BAR. 

THUS, THE FIFTH ACT OF BANKRUPTCY WAS COMMITTED AND IN CONSEQUENCE
THE UNITED STATES HAS THE BENEFIT OF THE PRIORITY GIVEN IT BY REV.
STAT. SEC. 3466.  WE THEREFORE TURN TO THE ARGUMENT OF THE STATE THAT
THE SPECIFICITY OF ITS LIEN DEFEATED THIS PRIORITY. 

                           II. 

THE UNITED STATES WAS GIVEN THE PRIORITY, NOW INCORPORATED IN REV.
STAT. SEC. 3466, IN 1797.  1 STAT. 515.  FN9  SEE ALSO THE DISCUSSION
IN PRICE V. UNITED STATES, 269 U.S. 492, 500-501.  YET THE COURT HAS
NEVER DECIDED WHETHER THE PRIORITY IS OVERCOME BY A FULLY PERFECTED AND
SPECIFIC LIEN.  SEE ROGGE, THE DIFFERENCES IN THE PRIORITY OF THE
UNITED STATES IN BANKRUPTCY AND IN EQUITY RECEIVERSHIPS (1929) 43 HARV.
L. REV. 251, 267-270.  THE QUESTION, HOWEVER, HAS BEEN RESERVED MANY
TIMES IN EXPRESS TERMS.  SEE CONARD V. ATLANTIC INSURANCE CO., 1 PET.
386, 442; BRENT V. BANK OF WASHINGTON, 10 PET. 596, 611-612; SPOKANE
COUNTY V. UNITED STATES, 279 U.S. 80, 95; NEW YORK V. MACLAY, 288 U.S.
290, 294; UNITED STATES V. TEXAS, 314 U.S. 480, 485-486; UNITED STATES
V. WADDILL CO., 323 U.S. 353, 355.  FN10  AND AGAIN WE NEED NOT DECIDE
IT, FOR WE ARE OF THE OPINION THAT THE ILLINOIS LIEN WAS NOT
SUFFICIENTLY SPECIFIC OR PERFECTED, IN THE PURVIEW OF CONTROLLING
DECISIONS, TO DEFEAT THE GOVERNMENT'S PRIORITY. 

THE EFFECT AND OPERATION OF A LIEN IN RELATION TO THE CLAIM OF
PRIORITY BY THE UNITED STATES UNDER REV. STAT. SEC. 3466 IS ALWAYS A
FEDERAL QUESTION.  "THE PRIORITY GIVEN THE UNITED STATES CANNOT BE
IMPAIRED OR SUPERSEDED BY STATE LAW."  UNITED STATES V. OKLAHOMA, 261
U.S. 253, 260.  HENCE A STATE COURT'S CHARACTERIZATION OF A LIEN AS
SPECIFIC AND PERFECTED IS NOT CONCLUSIVE.  UNITED STATES V. WADDILL
CO., 323 U.S. 353, 357.  THE STATE CHARACTERIZATION, THOUGH ENTITLED TO
WEIGHT, IS ALWAYS SUBJECT TO REEXAMINATION BY THIS COURT. 

ON THE OTHER HAND, IF THE STATE COURT ITSELF CHARACTERIZES THE LIEN
AS INCHOATE, THIS CHARACTERIZATION IS PRACTICALLY CONCLUSIVE. 
"WHATEVER MIGHT HAVE BEEN THE EFFECT OF MORE COMPLETED PROCEDURE IN THE
PERFECTING OF THE LIENS UNDER THE LAW OF THE STATE, UPON THE PRIORITY
OF THE UNITED STATES HEREIN, THE ATTITUDE OF THE STATE COURT RELIEVES
US OF CONSIDERATION OF IT."  SPOKANE COUNTY V. UNITED STATES, 279 U.S.
80, 95; CF. UNITED STATES V. KNOTT, 298 U.S. 544. 

IN THIS CASE THE UNITED STATES ARGUES THAT THE ILLINOIS SUPREME COURT
JUDGED THE LIEN OF THE STATE INCHOATE AND THAT THEREFORE WE MAY AFFIRM
ITS JUDGMENT ON THIS BASIS.  ILLINOIS, HOWEVER, DISPUTES THIS READING. 
IT STATES THAT THE ILLINOIS COURT DID NOT CONSIDER THE NATURE OF THE
LIEN IN RELATION TO THE FACTS PRESENTED BY THIS CASE, BUT MERELY
DETERMINED THAT UNDER THE FACTS OF ILLINOIS EX REL. GORDON V. UNITED
STATES, SUPRA, THE LIEN HAD NOT BECOME CHOATE.  WE CAN HARDLY ACCEPT
THIS VIEW IN THE FACE OF THE JUDGMENT RENDERED AND THE OPINION'S
STATEMENT OF THE FACTS OF THIS CASE AT THE OUTSET, TOGETHER WITH THE
LATER EXPLICIT REFERENCE TO IT IN HOLDING THE LIEN NOT OF A SORT TO
DEFEAT THE FEDERAL PRIORITY.  BUT WE DO NOT STOP TO ANALYZE THE OPINION
OF THE SUPREME COURT OF ILLINOIS IN DETAIL.  FOR IT IS CLEAR, QUITE
APART FROM THE OPINION, THAT THE LIEN WAS NOT SO SPECIFIC AND PERFECTED
AS TO DEFEAT THE PRIORITY OF THE UNITED STATES, IF THAT IS AT ALL
POSSIBLE. 

THE STATUTE UNDER WHICH THE ILLINOIS LIEN ARISES IS SET OUT IN THE
MARGIN.  FN11  THE STATE ASSERTS THAT THE LIEN BECAME SPECIFIC AND
PERFECTED WHEN NOTICE OF LIEN HAD BEEN FILED AND RECORDED  FN12  AND
WHEN THE RECEIVER HAD BEEN APPOINTED.  IN ITS VIEW, UPON APPOINTMENT OF
THE RECEIVER "ALL SUBSTANTIAL AIDS TO THE ENFORCEMENT OF THE STATE'S
LIEN HAD BEEN UTILIZED."    WITH THIS CONCLUSION WE DO NOT AGREE.  IT
IS TRUE THAT THE FILING OF NOTICE OF LIEN DETERMINED THE AMOUNT OF THE
LIEN, THOUGH THE STATE MAY HAVE COMPUTED WRONGLY THE AMOUNT OF TAXES
OWED IT. FN13  SEE UNITED STATES V. WADDILL CO., 323 U.S. AT 357-358. 
BUT IT IS NOT ENOUGH THAT THE AMOUNT OF THE LIEN BE KNOWN.  THE LIEN
MUST ATTACH TO SPECIFIC PROPERTY OF THE DEBTOR.  THIS THE ILLINOIS LIEN
HAD NOT DONE AT THE TIME THE RECEIVER WAS APPOINTED.  FN14  INDEED, AS
WAS STATED AT THE ARGUMENT, NOT ONLY WAS THE PROPERTY NOT IN THE HANDS
OF THE BAILIFF, BUT SO FAR AS APPEARS THE AMOUNT OR TYPE OF PROPERTY
BELONGING TO THE DEBTOR WAS NOT KNOWN TO THE STATE. 

UNDER THE ILLINOIS LAW, WHERE IT IS SOUGHT TO FORECLOSE A LIEN FOR
UNEMPLOYMENT COMPENSATION TAXES IT IS NOT NECESSARY FOR THE DIRECTOR IN
HIS COMPLAINT TO DESCRIBE THE PROPERTY TO WHICH SAID LIEN HAS
ATTACHED.  FN15  ON THE CONTRARY BY EXPRESS PROVISION, 

"...  IT SHALL BE THE DUTY OF THE EMPLOYER AGAINST WHOM SUCH PETITION
HAS BEEN FILED TO FILE IN SAID PROCEEDINGS, A FULL AND COMPLETE
SCHEDULE, UNDER OATH, OF ALL PERSONAL PROPERTY AND RIGHTS THERETO WHICH
HE OWNED AT THE TIME THE CONTRIBUTIONS, UPON WHICH THE LIEN SOUGHT TO
BE FORECLOSED IS BASED, BECOME DUE, OR WHICH HE SUBSEQUENTLY ACQUIRED,
INDICATING UPON SUCH SCHEDULE THE PROPERTY SO OWNED BY SUCH EMPLOYER
WHICH WAS, OR IS USED BY SUCH EMPLOYER IN CONNECTION WITH HIS TRADE,
OCCUPATION, PROFESSION OR BUSINESS, AND IF SUCH EMPLOYER SHALL SO FAIL
TO DO AFTER HAVING BEEN SO ORDERED BY THE COURT, HE MAY BE PUNISHED AS
IN OTHER CASES OF CONTEMPT OF COURT."  JONES ILL. STAT. ANN. (1944)
SEC. 45.154(E). 

NOT UNTIL THE DEBTOR HAS FILED THE REQUIRED SCHEDULES  FN16  WOULD THE
STATE KNOW THE AMOUNT OF PROPERTY IN THE DEBTOR'S POSSESSION OR, MORE
IMPORTANT, THE PROPERTY TO WHICH THE LIEN ATTACHED.  FOR THE LIEN
ATTACHES ONLY TO PERSONAL PROPERTY USED BY THE EMPLOYER "IN CONNECTION
WITH HIS TRADE, OCCUPATION, PROFESSION OR BUSINESS  ..." 

THE APPOINTMENT OF A RECEIVER, THEN, WAS ONLY AN INITIAL STEP IN THE
PERFECTION OF THE LIEN.  IT, TOGETHER WITH THE INJUNCTION, PROTECTED
WHATEVER RIGHTS IN THE PROPERTY THE STATE MIGHT HAVE.  BUT IT WAS NOT A
FINAL ASSERTION OR ATTACHMENT OF RIGHTS TO SPECIFIC PROPERTY, AS IS,
FOR EXAMPLE, THE ENFORCEMENT OF A JUDGMENT BY EXECUTION AND LEVY. 
CONARD V. ATLANTIC INS. CO., 1 PET. 386, 443-444. 

THE STATE HAS NOT RELIED MERELY UPON THE RECORDING OF THE NOTICES OF
LIEN BUT HAS RESTED ON THIS TOGETHER WITH THE RECEIVER'S APPOINTMENT AS
ACCOMPLISHING THE REQUIRED SPECIFICITY AND PERFECTION.  BUT NOW IT IS
SAID THE FILING OF THE NOTICES ALONE ACHIEVED THIS RESULT.  NEITHER
VIEW IS CORRECT.  BOTH HAVE BEEN REPUDIATED BY REPEATED DECISIONS OF
THIS COURT, THE LATEST BEING UNITED STATES V. WADDILL CO., SUPRA. 

IT HAS NEVER BEEN SUFFICIENT TO SHOW MERELY A GENERAL LIEN, EFFECTIVE
TO PROTECT THE LIENOR AGAINST OTHERS THAN THE GOVERNMENT, BUT
CONTINGENTLY ON TAKING SUBSEQUENT STEPS EITHER FOR GIVING PUBLIC NOTICE
OF THE LIEN OR FOR ENFORCING IT.  FN17  CONARD V. ATLANTIC INS. CO., 1
PET. 386, 444; UNITED STATES V. WADDILL CO., SUPRA.  THE FEDERAL
PRIORITY IS NOT DESTROYED BY STATE RECORDING ACTS ANY MORE THAN BY
STATE STATUTES CREATING OR OTHERWISE AFFECTING LIENS, IF THE LIEN AS
RECORDED OR OTHERWISE EXECUTED DOES NOT HAVE THE REQUIRED DEGREE OF
SPECIFICITY AND PERFECTION.  UNDER THE DECISIONS THE TEST IS NOT, AND
CANNOT BE, SIMPLY WHETHER BY HIS TAKING FURTHER STEPS THE LIENOR'S
RIGHTS WILL BE ENFORCED AGAINST OTHERS THAN THE GOVERNMENT. 

THE LONG-ESTABLISHED RULE REQUIRES THAT THE LIEN MUST BE DEFINITE,
AND NOT MERELY ASCERTAINABLE IN THE FUTURE BY TAKING FURTHER STEPS, IN
AT LEAST THREE RESPECTS AS OF THE CRUCIAL TIME.  THESE ARE:  (1) THE
IDENTITY OF THE LIENOR, UNITED STATES V. KNOTT, 298 U.S. 544, 549-551;
(2) THE AMOUNT OF THE LIEN, UNITED STATES V. WADDILL CO., 323 U.S. AT
357-358; AND (3) THE PROPERTY TO WHICH IT ATTACHES, UNITED STATES V.
WADDILL CO., SUPRA; UNITED STATES V. TEXAS, SUPRA; NEW YORK V. MACLAY,
SUPRA.  IT IS NOT ENOUGH THAT THE LIENOR HAS POWER TO BRING THESE
ELEMENTS, OR ANY OF THEM, DOWN FROM BROAD GENERALITY TO THE EARTH OF
SPECIFIC IDENTITY. 

IN THIS CASE THE IDENTITY OF THE LIENOR WAS MADE CERTAIN, BEFORE THE
GOVERNMENT'S PRIORITY ATTACHED, BOTH BY THE STATUTE AND BY THE NOTICES
OF LIEN.  THE LATTER ALSO FIXED THE AMOUNTS OF THE LIENS, THOUGH
MISCALCULATED.  BUT NEITHER THE NOTICES OF LIEN NOR THE APPOINTMENT OF
THE RECEIVER MADE DEFINITE AND CERTAIN THE PROPERTY, AS WE HAVE SHOWN. 

HERE, AS IN UNITED STATES V. TEXAS, 314 U.S. AT 487, "...  'PROPERTY
DEVOTED TO OR USED IN HIS BUSINESS  ...'  IS NEITHER SPECIFIC NOR
CONSTANT."  AS IN UNITED STATES V. WADDILL CO., 323 U.S. AT 359, THE
GOODS SUBJECT TO THE LIEN HAD NOT "SEVERED THEMSELVES FROM THE GENERAL
AND FREE ASSETS OF THE TENANT (OWNER) FROM WHICH THE CLAIMS OF THE
UNITED STATES WERE ENTITLED TO PRIORITY OF PAYMENT."  HERE, AS IN THAT
AND OTHER CASES, THERE WAS MERELY "A CAVEAT OF A MORE PERFECT LIEN TO
COME," NEW YORK V. MACLAY, 288 U.S. AT 294, WHETHER TESTED BY STATE
LAW, 323 U.S. AT 357, OR BY PERFECTION "AS A MATTER OF ACTUAL FACT,
REGARDLESS OF HOW COMPLETE IT (THE LIEN) MAY HAVE BEEN AS A MATTER OF
STATE LAW."  IBID., 358.  THE STATE HAS ACQUIRED NEITHER TITLE NOR
POSSESSION, THELUSSON V. SMITH, 2 WHEAT.  396; NEW YORK V. MACLAY, 288
U.S. 290, SINCE THE RECEIVER'S POSSESSION WAS THAT OF THE COURT, NOT OF
THE STATE, AND DID NOT SEVER THE PROPERTY FROM THE DEBTOR'S GENERAL
ASSETS AS OF THE CRUCIAL DATE. 

TO PERMIT THE RECORDING OF THE NOTICES OR THE RECEIVER'S APPOINTMENT,
OR BOTH, IN CIRCUMSTANCES LIKE THESE, TO OVERCOME THE GOVERNMENT'S
PRIORITY WOULD BE IN SUBSTANCE TO OVERRULE THE NUMEROUS DECISIONS CITED
IN WHICH LIENS NO LESS "SPECIFIC AND PERFECTED" HAVE BEEN HELD IMPOTENT
FOR THAT PURPOSE.  IT WOULD OPEN THE DOOR, TOO, WE THINK, TO
SUBSTANTIAL NULLIFICATION OF THE GOVERNMENT'S PRIORITY.  FOR THEN THIS
COULD BE ACCOMPLISHED SIMPLY BY RECORDED NOTICES OF LIEN, DISCLOSING
CLAIMS TO PROPERTY NOT SEGREGATED FROM THE DEBTOR'S GENERAL ESTATE;
DESIGNATED ONLY BY GENERAL WORDS OF CLASSIFICATION, INCLUDING AFTER
ACQUIRED PROPERTY AS HERE; AND ASCERTAINABLE DEFINITIVELY ONLY BY
FURTHER PROCEDURES.  CONGRESS ALONE SHOULD MAKE SUCH A CHANGE, IF IT
SHOULD BE MADE AT ALL. 

THE JUDGMENT IS AFFIRMED.  FN18 

FN1  ASSOCIATED AGENCIES WAS MADE A DEFENDANT IN THE SUIT BROUGHT BY
THE DIRECTOR OF LABOR. 

FN2  AS EXHIBITS TO THE DIRECTOR'S COMPLAINT THREE NOTICES OF LIEN
WERE FILED, ONE FOR $225.51, ONE FOR $303.29, AND ONE FOR $259.65. 
ALTHOUGH THESE AGGREGATE $788.45, THE LIEN SOUGHT TO BE FORECLOSED WAS
FOR $767.29.  SEE NOTE 12. 

FN3  THE PROPERTY OF THE CHICAGO WASTE AND TEXTILE COMPANY WAS TO BE
SOLD AT PUBLIC AUCTION AT THE BEHEST OF ASSOCIATED AGENCIES.  THE
INJUNCTION PREVENTED THIS SALE. 

FN4  THIS DID NOT EXHAUST THE FUND, AND THE COURT AWARDED THE BALANCE
TO THE DIRECTOR OF LABOR, INSTEAD OF TO THE UNITED STATES IN PART
PAYMENT OF ITS CLAIM FOR FEDERAL UNEMPLOYMENT TAXES.  391 ILL. 29, 32
34.  SEE ALSO UNITED STATES V. SPENCER, 65 F.SUPP.  763.  THE UNITED
STATES HAS NOT PETITIONED FOR CERTIORARI, AND THEREFORE THE CORRECTNESS
OF THIS DISPOSITION OF THE BALANCE OF THE FUND IS NOT NOW IN
CONTROVERSY. 

FN5  JONES ILL. STAT. ANN. (1944) SECS. 45.128-45.161.  THE ARGUMENT
OF THE STATE IN THAT CASE WAS THAT, SINCE TITLE 9 CONTAINED "PROVISIONS
INTENDED TO INDUCE STATES TO SET UP SOUND UNEMPLOYMENT COMPENSATION IN
ACCORDANCE WITH CONGRESSIONALLY PRESCRIBED STANDARDS" AND "TO THIS END"
PERMITTED THE STATES "TO BUILD UP THEIR OWN FUNDS BY COLLECTION FROM
EMPLOYERS WITHIN THE STATE OF 90% OF THE TAX THOSE EMPLOYERS WOULD
OTHERWISE HAVE TO PAY TO THE FEDERAL GOVERNMENT," IT WAS CONGRESS'
INTENTION TO GIVE STATES PRIORITY OVER THE UNITED STATES FOR THEIR
UNEMPLOYMENT COMPENSATION CLAIMS.  THIS ARGUMENT WAS APPLICABLE, IT MAY
BE NOTED, ONLY TO FEDERAL UNEMPLOYMENT COMPENSATION TAXES AND NOT TO
FEDERAL INSURANCE CONTRIBUTIONS TAXES, WHICH ARE THE ONLY ONES INVOLVED
IN THIS CASE, SINCE AS TO FEDERAL INSURANCE CONTRIBUTIONS TAXES THERE
ARE NO PROVISIONS FOR FEDERAL-STATE COOPERATION AS THERE ARE IN TITLE
9.  COMPARE HELVERING V. DAVIS, 301 U.S. 619, WITH STEWARD MACHINE CO.
V. DAVIS, 301 U.S. 548.  SEE ALSO RIVARD V. BIJOU FURNITURE CO., 68
R.I. 358, 361, 27 A.2D 853. 

FN6  THE BANKRUPTCY ACT USES THE TERM "PERSON," 11 U.S.C. SEC. 21(A),
BUT THE ACT DEFINES "PERSONS" AS INCLUDING "CORPORATIONS, EXCEPT WHERE
OTHERWISE SPECIFIED, AND OFFICERS, PARTNERSHIPS, AND WOMEN  ..."  52
STAT. 841, 11 U.S.C. SEC. 1(23). 

FN7  SINCE DECISION OF THE EVANS CASE, THE FIFTH ACT OF BANKRUPTCY
HAS BEEN AMENDED TO INCLUDE APPOINTMENT OF A RECEIVER WHEN THERE IS
INSOLVENCY IN THE EQUITY SENSE AS WELL AS IN THE BANKRUPTCY SENSE.  SEE
1 COLLIER ON BANKRUPTCY (14TH ED.)  475.  BUT UNDER THE AMENDED STATUTE
THE SAME VIEW HAS BEEN EXPRESSED.  ELFAST V. LAMB, 111 F.2D 434, 436. 

FN8  SEE NOTE (1946) 59 HARV. L. REV. 1132, 1136. 

FN9  THERE ARE MINOR DIFFERENCES IN PHRASEOLOGY BETWEEN 1 STAT. 515
AND REV. STAT. SEC. 3466, WHICH "DID NOT WORK ANY CHANGE IN THE PURPOSE
OR MEANING  ..."  PRICE V. UNITED STATES, 269 U.S. 492, 501. 

FN10  THE STATEMENT IN UNITED STATES V. KNOTT, 298 U.S. 544, 551,
THAT "SUCH AN INTEREST (AN INCHOATE GENERAL LIEN CREATED BY THE LAWS OF
FLORIDA) LACKS THE CHARACTERISTICS OF A SPECIFIC PERFECTED LIEN WHICH
ALONE BARS THE PRIORITY OF THE UNITED STATES" WAS NOT INTENDED TO
SETTLE THE PROBLEM AND MAY BE TAKEN TO HAVE BEEN MADE WITH REFERENCE TO
THE EARLY MORTGAGE LIEN CASES DISCUSSED AND DISTINGUISHED IN UNITED
STATES V. TEXAS, 314 U.S. AT 484-485, AND NEW YORK V. MACLAY, 288 U.S.
AT 293-294. 

FN11  "A LIEN IS HEREBY CREATED IN FAVOR OF THE DIRECTOR UPON ALL THE
PERSONAL PROPERTY OR RIGHTS THERETO OWNED OR THEREAFTER ACQUIRED BY ANY
EMPLOYER AND USED BY HIM IN CONNECTION WITH HIS TRADE, OCCUPATION,
PROFESSION OR BUSINESS, FROM WHOM CONTRIBUTIONS, INTEREST OR PENALTIES
ARE OR MAY HEREAFTER BECOME DUE.  SUCH LIEN SHALL BE FOR A SUM EQUAL TO
THE AMOUNT AT ANY TIME DUE FROM SUCH EMPLOYER TO THE DIRECTOR ON
ACCOUNT OF CONTRIBUTIONS, INTEREST AND PENALTIES THEREON.  SUCH LIEN
SHALL ATTACH TO SUCH PROPERTY AT THE TIME SUCH CONTRIBUTIONS, INTEREST
OR PENALTIES BECAME, OR SHALL HEREAFTER BECOME, DUE.  IN ALL CASES
WHERE A REPORT SETTING FORTH THE AMOUNT OF SUCH CONTRIBUTIONS HAS BEEN
FILED WITH THE DIRECTOR, NO ACTION TO ENFORCE SUCH LIEN SHALL BE
BROUGHT AFTER THREE YEARS FROM THE DATE OF THE FILING OF SUCH REPORT
AND IN ALL OTHER CASES NO ACTION TO ENFORCE SUCH LIEN SHALL BE BROUGHT
AFTER THREE YEARS FROM THE DATE THAT THE DETERMINATION AND ASSESSMENT
OF THE DIRECTOR MADE PURSUANT TO THE PROVISIONS OF THIS ACT BECAME
FINAL."  JONES ILL. STAT. ANN. (1944) SEC. 45.154(A).  SEE ALSO NOTE
2. 

FN12  "SUCH LIEN SHALL BE INVALID ONLY AS TO ANY INNOCENT PURCHASER
FOR VALUE OF STOCK IN TRADE OF ANY EMPLOYER IN THE USUAL COURSE OF SUCH
EMPLOYER'S BUSINESS, AND SHALL BE INVALID AS TO ANY INNOCENT PURCHASER
FOR VALUE OF ANY OF THE OTHER ASSETS TO WHICH SUCH LIEN HAS ATTACHED,
UNLESS NOTICE THEREOF HAS BEEN FILED BY THE DIRECTOR IN THE OFFICE OF
THE RECORDER OF DEEDS OF THE COUNTY WITHIN WHICH THE PROPERTY SUBJECT
TO THE LIEN IS SITUATED...."  JONES ILL. STAT. ANN. (1944) SEC.
45.154(B)(1).  SEE NOTE 2. 

FN13  CF. NOTE 2. 

FN14  THE PRIORITY OF THE UNITED STATES ATTACHES UPON APPOINTMENT OF
THE RECEIVER.  UNITED STATES V. OKLAHOMA, 261 U.S. 253, 260; SPOKANE
COUNTY V. UNITED STATES, 279 U.S. 80, 93. 

FN15  JONES ILL. STAT. ANN. (1944) SEC. 45.154(E) PROVIDES FOR
ENFORCEMENT OF THE LIEN BY JUDICIAL PROCEEDINGS FOR FORECLOSURE.  THE
SAID PETITION DESCRIBE THE PROPERTY TO WHICH SAID LIEN HAS ATTACHED";
AND CONTINUES WITH THE FURTHER LANGUAGE QUOTED IN THE TEXT. 

FN16  IN HIS COMPLAINT THE DIRECTOR OF LABOR PRAYED, "THAT AN ORDER
BE ENTERED BY THIS HONORABLE COURT COMMANDING THAT THE DEFENDANT,
CHICAGO WASTE & TEXTILE CO., A CORPORATION, FILE WITHIN A SHORT DAY TO
BE FIXED BY THE COURT, A FULL AND COMPLETE SCHEDULE UNDER OATH, OF ALL
PERSONAL PROPERTY AND RIGHTS THERETO, WHICH IT OWNED ON THE 1ST DAY OF
MAY, 1941, OR THEREAFTER ACQUIRED, AND TO INDICATE UPON SUCH SCHEDULE
THE PROPERTY SO OWNED BY IT WHICH WAS OR IS USED BY IT IN CONNECTION
WITH ITS TRADE, OCCUPATION, PROFESSION OR BUSINESS." 

FN17  SEE THE AUTHORITIES CITED IN THE TEXT AT THE BEGINNING OF PART
II OF THIS OPINION. 

FN18  AS WE AFFIRM THE JUDGMENT ON THE GROUND THAT THE UNITED STATES
UNDER REV. STAT. SEC. 3466 HAS PRIORITY OVER ILLINOIS AS TO ALL FEDERAL
INSURANCE CONTRIBUTIONS TAXES OWING IT, WE DO NOT CONSIDER THE ARGUMENT
THAT, EVEN IF THIS GENERAL PRIORITY DID NOT EXIST, THE UNITED STATES
WOULD BE ENTITLED TO THE AMOUNT OF THE FUND WHICH REPRESENTS EMPLOYEES'
TAXES. 

MR. JUSTICE REED, DISSENTING. 

IN MY OPINION THE NOTICES OF LIEN CAUSED TO BE DULY RECORDED BY
ILLINOIS ON APRIL 3, MAY 8 AND MAY 20, 1942, WITH THE RECORDER OF DEEDS
OF COOK COUNTY, ILLINOIS, PERFECTED AND MADE SPECIFIC THE STATE'S CLAIM
UNDER ITS UNEMPLOYMENT COMPENSATION STATUTE.  THESE NOTICES NAMED THE
CREDITOR AND GAVE HIS PRECISE ADDRESS.  THEY STATED THE AMOUNT OF THE
CLAIM AND ASSERTED A LIEN FOR THE AGGREGATE SUM UPON ALL THE PERSONAL
PROPERTY OWNED AND USED BY THE LIENEE IN CONNECTION WITH ITS BUSINESS. 
UNDER ANY VIEW OF CHATTEL LIEN LAW, SUCH A LEGALLY RECORDED INSTRUMENT
WOULD CREATE A LIEN IN THE LIENOR ON THE PERSONAL PROPERTY OWNED AND
USED BY THE TAXPAYER AT HIS PLACE OF BUSINESS SUPERIOR TO THE RIGHTS OF
GENERAL CREDITORS OR SUBSEQUENT INNOCENT PURCHASERS FOR VALUE.  THIS IS
TRUE BY STATUTE IN ILLINOIS.  JONES ILL. STAT. ANN. (1944) SEC.
45.154(B)(1), UNEMPLOYMENT COMPENSATION ACT OF ILLINOIS.    THE COURT
DEEMS THAT THE LIEN ATTACHES TO SPECIFIC AND ASCERTAINABLE PROPERTY OF
THE TAXPAYER ONLY WHEN THE TAXPAYER FILES HIS SCHEDULE OF PROPERTY IN
PROCEEDINGS TO ENFORCE THE LIEN.  FN1  I DEEM THE RECORDED NOTICE AS
THE INCIDENT THAT CONSUMMATES THE LIEN UPON THE SPECIFIC AND
ASCERTAINABLE PROPERTY.  THE ENFORCEMENT PROCEEDINGS AFTER THAT
RECORDATION ARE ONLY AN ENFORCEMENT OF A LIEN ALREADY FIXED UPON THE
SPECIFIC PROPERTY ADEQUATELY DESCRIBED IN THE RECORDED NOTICE.    THE
COURT SUGGESTS THAT THE RULING IN UNITED STATES V. TEXAS, 314 U.S. 480,
THAT THE STATUTORY LIEN ON "PROPERTY DEVOTED TO OR USED IN HIS
BUSINESS" IS NOT A SPECIFIC AND FIXED LIEN ENTITLED TO PRIORITY OVER
THE UNITED STATES, IS PERSUASIVE THAT SIMILAR WORDS IN THE ILLINOIS
STATUTE ARE NOT SPECIFIC AND CONSTANT.  BUT IN THE TEXAS CASE, NO STEPS
HAD BEEN TAKEN TO FIX THE AMOUNT OF THE LIEN ON THE PROPERTY DEVOTED TO
THE BUSINESS, P. 487.  OF COURSE, THEREFORE, THE LIEN COULD NOT BE
FIXED AND CERTAIN.  THIS FINAL STEP TO PERFECT THE LIEN HAD BEEN TAKEN
IN THE PRESENT CASE. 

AS THE COURT CONCLUDES NO SPECIFIC LIEN ATTACHES TO ASCERTAINABLE
PROPERTY, I CONTENT MYSELF WITH ADDING, AS TO THE RESPECTIVE PRIORITIES
OF THE UNITED STATES AND A LIENOR WITH A SPECIFIC LIEN ON ASCERTAINABLE
PROPERTY, THAT IN MY OPINION SUCH A LIENOR HAS PRIORITY FOR HIS LIEN
DESPITE REV. STAT. SEC. 3466.  SEE THELUSSON V. SMITH, 2 WHEAT.  396,
424; CONARD V. ATLANTIC INSURANCE CO., 1 PET. 386, 441; UNITED STATES
V. WADDILL CO., 323 U.S. 353, 355. 

FN1  JONES ILL. STAT. ANN. (1944) SEC. 45.154(E): 

"FORECLOSURE OF LIEN.  IN ADDITION AND AS AN ALTERNATIVE TO ANY OTHER
REMEDY PROVIDED BY THIS ACT, OR BY THE LAWS OF THE STATE OF ILLINOIS
THE DIRECTOR MAY ENFORCE THE LIEN HEREIN CREATED BY PETITION IN THE
NAME OF THE PEOPLE OF THE STATE OF ILLINOIS TO THE CIRCUIT COURT OF THE
COUNTY WHEREIN THE PROPERTY SUBJECT TO THE LIEN IS SITUATED, PRAYING
THAT THE LIEN WHICH HAS ATTACHED TO SAID PROPERTY, BE FORECLOSED AND
THE AFORESAID PROPERTY BE SOLD IN THE SAME MANNER AS IN CASES OF
FORECLOSURE OF MORTGAGES UPON PERSONAL PROPERTY IN COURTS OF RECORD. 
IN ALL SUCH CASES, IT SHALL NOT BE NECESSARY THAT SAID PETITION
DESCRIBE THE PROPERTY TO WHICH SAID LIEN HAS ATTACHED AND IT SHALL BE
THE DUTY OF THE EMPLOYER AGAINST WHOM SUCH PETITION HAS BEEN FILED TO
FILE IN SAID PROCEEDINGS, A FULL AND COMPLETE SCHEDULE, UNDER OATH, OF
ALL PERSONAL PROPERTY AND RIGHTS THERETO WHICH HE OWNED AT THE TIME THE
CONTRIBUTIONS, UPON WHICH THE LIEN SOUGHT TO BE FORECLOSED IN (IS)
BASED, BECOME DUE, OR WHICH HE SUBSEQUENTLY ACQUIRED, INDICATING UPON
SUCH SCHEDULE THE PROPERTY SO OWNED BY SUCH EMPLOYER WHICH WAS, OR IS
USED BY SUCH EMPLOYER IN CONNECTION WITH HIS TRADE, OCCUPATION,
PROFESSION OR BUSINESS, AND IF SUCH EMPLOYER SHALL SO FAIL TO DO AFTER
HAVING BEEN SO ORDERED BY THE COURT, HE MAY BE PUNISHED AS IN OTHER
CASES OF CONTEMPT OF COURT." 

MR. JUSTICE JACKSON JOINS IN THIS DISSENT. 
..END :







UNITED STATES V. SHERIDAN, 329 U.S. 379 


NO. 53.  ARGUED NOVEMBER 12, 13, 1946.  - DECIDED DECEMBER 23, 1946.  -
152 F.2D 57, REVERSED. 


1.  A PERSON WHO CASHES IN ONE STATE A FORGED CHECK DRAWN ON A BANK IN
ANOTHER STATE, KNOWING IT TO HAVE BEEN FORGED AND THAT IT WOULD BE
FORWARDED ACROSS STATE LINES TO THE DRAWEE BANK, AND THE CHECK ACTUALLY
BEING SO FORWARDED, IS GUILTY OF A VIOLATION OF SEC. 3 OF THE NATIONAL
STOLEN PROPERTY ACT, WHICH FORBIDS ANY PERSON TO "CAUSE TO BE
TRANSPORTED IN INTERSTATE  ...  COMMERCE" ANY FORGED CHECK "WITH
UNLAWFUL OR FRAUDULENT INTENT."  KANN V. UNITED STATES, 323 U.S. 88,
DISTINGUISHED.  PP. 381-391. 

2.  PROOF THAT A DEFENDANT CASHED CERTAIN CHECKS, RECEIVING CASH,
GOODS OR SERVICES, THAT THEY WERE DRAWN ON A BANK IN ANOTHER STATE,
THAT THEY WERE FORWARDED TO THE DRAWEE BANK FOR PAYMENT, THAT THEY
PURPORTED TO BE SIGNED BY AN AGENT OF THE GOVERNMENT, THAT THE
GOVERNMENT HAD NO SUCH AGENT, AND THAT THE CHECKS WERE RETURNED UNPAID
AND MARKED "NO ACCOUNT," HELD SUFFICIENT TO SUSTAIN A CONVICTION FOR
FRAUDULENTLY CAUSING THE TRANSPORTATION IN INTERSTATE COMMERCE OF
FORGED CHECKS, KNOWING THEM TO HAVE BEEN FORGED, IN VIOLATION OF SEC. 3
OF THE NATIONAL STOLEN PROPERTY ACT.  PP. 391-392. 

3.  SINCE THE CIRCUIT COURT OF APPEALS, HAVING REVERSED THE
CONVICTION ON OTHER GROUNDS, DID NOT PASS UPON RESPONDENT'S CONTENTION
THAT CERTAIN EVIDENCE WAS INADMISSIBLE, THE CASE IS REMANDED FOR
CONSIDERATION OF THAT QUESTION.  PP. 391-393. 

4.  THE RECORD CONTAINS NEITHER THE INSTRUCTIONS GIVEN NOR THE
RULINGS ON INSTRUCTIONS REQUESTED.  IN THE CIRCUMSTANCES OF THIS CASE,
TAKING ANY CORRECTIVE ACTION IN ORDER TO OBTAIN A COMPLETE RECORD MAY
BE LEFT TO THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS UPON THE
REMAND.  PP. 392-393. 

UNITED STATES V. SHERIDAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

RESPONDENT WAS CONVICTED OF A VIOLATION OF SEC. 3 OF THE NATIONAL
STOLEN PROPERTY ACT.  THE CIRCUIT COURT OF APPEALS REVERSED.  152 F.2D
57.  THIS COURT GRANTED CERTIORARI.  328 U.S. 829.  REVERSED, P. 393. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

SHERIDAN WAS INDICTED ON THREE COUNTS FOR HAVING VIOLATED SEC. 3 OF
THE NATIONAL STOLEN PROPERTY ACT, AS AMENDED, 48 STAT. 794, 53 STAT.
1178, 18 U.S.C. SECS. 413-419.  A JURY FOUND HIM GUILTY ON ALL COUNTS. 
FN1  ON THE AUTHORITY OF KANN V. UNITED STATES, 323 U.S. 88, THE
CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED THE
CONVICTION.  152 F.2D 57.  BECAUSE OF DOUBT AS TO THE APPLICABILITY OF
THE KANN CASE, WE GRANTED CERTIORARI.  FN2  328 U.S. 829. 

EACH COUNT CHARGED THAT SHERIDAN, WITH FRAUDULENT INTENT, CAUSED THE
TRANSPORTATION IN INTERSTATE COMMERCE OF A SPECIFIED FORGED CHECK,
KNOWING IT TO HAVE BEEN FORGED.  THE PROOF  FN3 OFFERED TO SUPPORT
THESE COUNTS SHOWED THAT ON JULY 19, 1943, IN JACKSON, MICHIGAN,
SHERIDAN CASHED THREE CHECKS, RECEIVING FOR THEM EITHER CASH OR CASH
AND HOTEL SERVICE OR GOODS.  TWO, WHICH WERE MADE THE BASIS OF COUNTS
ONE AND TWO, WERE DRAWN ON A BANK IN CAPE GIRARDEAU, MISSOURI, WERE
PAYABLE TO THE ORDER OF "P. H. D. SHERIDAN," AND PURPORTED TO BE DRAWN
BY "U.S.E.F.C. 14A A. J. DAVIS, COMMISSIONER."  AS WILL BE SEEN, IT IS
NOT NECESSARY TO CONSIDER THE THIRD COUNT, INVOLVING THE OTHER CHECK. 

FROM THE ENDORSEMENTS IT WAS CLEAR THAT EACH CHECK HAD BEEN CASHED BY
OR DEPOSITED IN BANKS AT JACKSON, MICHIGAN.  THEY FORWARDED THE TWO
CHECKS DRAWN ON THE MISSOURI BANK TO IT FOR PAYMENT.  BOTH WERE MARKED
"NO ACCOUNT" AND RETURNED UNPAID TO THE FORWARDING BANK.  AN AGENT OF
THE FEDERAL BUREAU OF INVESTIGATION TESTIFIED THAT HIS OFFICE HAD
CONDUCTED AN INVESTIGATION IN WASHINGTON, D.C., AND THAT THE UNITED
STATES DEPARTMENT OF COMMERCE HAD NO AGENT "U.S.E.F.C. 14A," NOR ONE
"A. J. DAVIS, COMMISSIONER." 

SHERIDAN WAS SENTENCED TO FIVE YEARS' IMPRISONMENT ON EACH COUNT, THE
SENTENCES TO RUN CONCURRENTLY.  HENCE, IF THE CONVICTION ON ANY IS
VALID, IT IS UNNECESSARY TO CONSIDER THE CONVICTIONS ON THE OTHER TWO. 
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 85; PINKERTON V. UNITED
STATES, 328 U.S. 640, 641, N. 1.  ACCORDINGLY, FOR THE PURPOSES OF THIS
DECISION IT MAY BE TAKEN THAT ONLY THE CONVICTIONS ON COUNTS ONE AND
TWO ARE IN ISSUE.  FN4

    I. 

THE PERTINENT PART OF AMENDED SEC. 3 IS SET OUT IN THE MARGIN.  FN5
WHETHER OR NOT SHERIDAN'S SITUATION IS WITHIN THE INTENDED COVERAGE
DEPENDS UPON THE ANSWER TO BE GIVEN TO TWO QUESTIONS, NAMELY:  (1) DID
HE CAUSE TO BE TRANSPORTED IN INTERSTATE COMMERCE ANY FORGED SECURITY;
FN6  (2) IF SO, DID HE DO THIS "WITH UNLAWFUL OR FRAUDULENT INTENT"? 
IT IS IN THESE RESPECTS THAT THE SECTION'S MEANING MUST BE DETERMINED. 

IT IS NOT QUESTIONED THAT THE CHECKS WERE "SECURITIES," THAT THEY
WERE "FORGED," OR THAT THEY WERE TRANSPORTED IN INTERSTATE COMMERCE. 
FN7  IT IS URGED, HOWEVER, THAT SHERIDAN DID NOT "CAUSE" THE
TRANSPORTATION, SINCE HIS OBJECTIVE WAS ATTAINED WHEN HE CASHED THE
CHECKS AND WHAT HAPPENED TO THEM LATER WAS OF NO CONSEQUENCE TO HIM OR
HIS PLAN.  HENCE IT IS CONCLUDED THAT HE CAN BE SAID TO HAVE "CAUSED"
THE TRANSPORTATION ONLY IN THE SENSE THAT IT WOULD NOT HAVE OCCURRED IF
HE HAD NOT CASHED THE CHECKS.  THIS "BUT FOR" RELATION IS CONSIDERED
INSUFFICIENT SINCE THE STATUTE IS THOUGHT NOT SIMPLY TO FORBID USE OF
INTERSTATE COMMERCE FOR TRANSPORTATION OF FORGED SECURITIES WITHOUT
MORE, BUT TO OUTLAW SUCH USE ONLY WHEN IT CONTRIBUTES TO OR IS AN
ESSENTIAL PART OF CARRYING OUT THE INTENDED SPECIFIC FRAUD. 

THE SECOND CONTENTION, THOUGH STATED DIFFERENTLY, COMES SUBSTANTIALLY
TO THE SAME THING.  IT IS THAT, UPON THE ASSUMPTION SHERIDAN MAY BE
HELD TO HAVE "CAUSED" THE TRANSPORTATION, STILL HE DID NOT DO SO WITH
THE REQUISITE "UNLAWFUL OR FRAUDULENT INTENT," NAMELY, TO AID IN
COMPLETING THE FRAUD.  THESE VIEWS ARE BOLSTERED BY STRONG RELIANCE ON
THE KANN DECISION. 

THE GOVERNMENT ANSWERS WITH ESSENTIALLY TWO ARGUMENTS.  ONE IS DRAWN
PRIMARILY FROM THE EMBODIMENT OF AMENDED SEC. 3 IN THE NATIONAL STOLEN
PROPERTY ACT.  IT IS SHORTLY THAT THE OFFENSE TAKES COLOR AND CHARACTER
FROM THE OTHER OFFENSES WITH WHICH IT IS ASSOCIATED IN THE CONTEXT OF
SEC. 3.  BROADLY, THEREFORE, THE GOVERNMENT SAYS THAT THE SECTION AS
AMENDED EXCLUDES FORGED SECURITIES FROM INTERSTATE TRANSPORTATION JUST
AS IT DOES STOLEN GOODS,  FN8  MONEY OR SECURITIES, COUNTERFEITED
SECURITIES AND COUNTERFEITING TOOLS; OR, FOR THAT MATTER, JUST AS
DISEASED CATTLE, LOTTERY TICKETS, ADULTERATED FOODS, ETC., ARE EXCLUDED
UNDER VARIOUS STATUTES RELATED TO THE NATIONAL STOLEN PROPERTY ACT. 
FN9  MORE NARROWLY THE GOVERNMENT ARGUES THAT THE TRANSPORTATION HERE
NECESSARILY AIDED OR CONTRIBUTED TO THE PERPETRATION OF THE FRAUD, IF
NOT BY ENABLING RESPONDENT TO SECURE POSSESSION ORIGINALLY OF ITS
FRUITS, THEN BY GIVING HIM THE NECESSARY INTERVAL TO MAKE HIS ESCAPE
AND THUS TO AVOID EITHER PROSECUTION OR RESTITUTION OF THE AMOUNT WHICH
EARLY DETECTION WOULD MAKE PROBABLE. 

AS AN ENTIRELY FRESH MATTER, WE SHOULD HAVE DIFFICULTY IN AVOIDING
THE FORCE OF THE GOVERNMENT'S VIEWS.  THE SETTING OF THE OFFENSE IN
AMENDED SEC. 3, TOGETHER WITH THE COMPLETE ABSENCE OF ANYTHING IN THE
LEGISLATIVE HISTORY TO INDICATE THAT CAUSING INTERSTATE TRANSPORTATION
OF FORGED SECURITIES WAS DESIGNED TO BE TREATED DIFFERENTLY FROM
CAUSING THE TRANSPORTATION OF STOLEN GOODS, COUNTERFEITED SECURITIES,
COUNTERFEITING TOOLS, ETC., INDICATES PLAINLY THAT TRANSPORTING ALL
THESE ARTICLES IS TO BE TREATED IN THE SAME MANNER AND, MOREOVER, NOT
IN THE LIMITED SENSE FOR WHICH RESPONDENT ARGUES. 

CONGRESS HAD IN MIND PREVENTING FURTHER FRAUDS OR THE COMPLETION OF
FRAUDS PARTIALLY EXECUTED.  BUT IT ALSO CONTEMPLATED COMING TO THE AID
OF THE STATES IN DETECTING AND PUNISHING CRIMINALS WHOSE OFFENSES ARE
COMPLETE UNDER STATE LAW, BUT WHO UTILIZE THE CHANNELS OF INTERSTATE
COMMERCE TO MAKE A SUCCESSFUL GETAWAY AND THUS MAKE THE STATE'S
DETECTING AND PUNITIVE PROCESSES IMPOTENT.  FN10  THIS WAS INDEED ONE
OF THE MOST EFFECTIVE WAYS OF PREVENTING FURTHER FRAUDS AS WELL AS
IRREVOCABLE COMPLETION OF PARTIALLY EXECUTED ONES.  IN THE LIGHT OF
THIS PURPOSE, WE DO NOT BELIEVE THAT CONGRESS INTENDED TO RESTRICT THE
PROHIBITED TRANSPORTATION OF STOLEN GOODS, SECURITIES AND MONEY, OR OF
COUNTERFEITED SECURITIES AND COUNTERFEITING TOOLS, TO SITUATIONS WHERE
IT WOULD BE EFFECTIVE TO COMPLETE A SPECIFIC FRAUD, IN THE SENSE OF
ENABLING THE DEFRAUDER TO SECURE POSSESSION INITIALLY OF WHAT HE
SEEKS.  THE INTENT WAS MORE GENERAL. 

IT IS TRUE THAT AMENDED SEC. 3 FORBIDS THE INTERSTATE TRANSPORTATION
OF FORGED AND COUNTERFEITED SECURITIES, AND FORGING AND COUNTERFEITING
TOOLS, "WITH UNLAWFUL OR FRAUDULENT INTENT," WHILE THE EARLIER
PROSCRIBED TRANSPORTATION OF STOLEN GOODS, SECURITIES AND MONEY IS NOT
REQUIRED IN TERMS TO BE DONE WITH SUCH AN INTENT, BUT ONLY WITH
KNOWLEDGE THAT THEY HAVE BEEN STOLEN.  THIS DIFFERENCE WOULD SEEM TO BE
ENTIRELY PROCEDURAL, NOT SUBSTANTIVE IN CHARACTER N11.  BUT, IN ANY
EVENT, IT IS NOT CONTROLLING HERE.  FOR THE QUESTION REMAINS WHETHER
THE KANN CASE REQUIRES US TO HOLD THAT "WITH UNLAWFUL OR FRAUDULENT
INTENT" MUST BE TAKEN AS RESTRICTING THE FORBIDDEN TRANSPORTATION TO
CASES WHERE THAT ELEMENT AIDS IN ORIGINALLY SECURING THE FRUITS OF THE
FRAUD. 

II. 

THAT CASE HELD THAT ONE ALLEGED TO BE PARTY TO A FRAUDULENT SCHEME
COULD NOT BE CONVICTED UNDER SEC. 215 OF THE CRIMINAL CODE, 18 U.S.C.
SEC. 338, FOR USING THE MAILS "FOR THE PURPOSE OF EXECUTING SUCH
SCHEME," BY PROVING THAT HE OR HIS ASSOCIATES CASHED CHECKS, RECEIVING
THE PROCEEDS AT FORWARDING BANKS, WHICH IN TURN MAILED THEM TO THE
DRAWEE BANKS FOR COLLECTION, THE CHECKS BEING NEITHER FORGED NOR
DISHONORED BY THE BANKS ON WHICH THEY WERE DRAWN.  WE THINK THE CASE IS
DISTINGUISHABLE BOTH ON THE STATUTES APPLIED AND ON THE FACTS.  IN
ORDER THAT COMPARISON MAY BE EXACT, WE SET FORTH THE APPLICABLE WORDING
OF THE TWO SECTIONS. 

FOLLOWS:  "WHOEVER, HAVING DEVISED  ...  ANY SCHEME OR ARTIFICE TO
DEFRAUD, OR FOR OBTAINING MONEY OR PROPERTY BY MEANS OF FALSE OR
FRAUDULENT PRETENSES, REPRESENTATIONS, OR PROMISES,  ...  SHALL, FOR
THE PURPOSE OF EXECUTING SUCH SCHEME OR ARTIFICE OR ATTEMPTING SO TO
DO, PLACE, OR CAUSE TO BE PLACED, ANY LETTER ...  IN ANY POST OFFICE,
OR  ...  CAUSE TO BE DELIVERED BY MAIL ACCORDING TO THE DIRECTION
THEREON ...  ANY SUCH LETTER,  ...  SHALL BE FINED NOT MORE THAN
$1,000, OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH." 

AMENDED SEC. 3 OF THE STOLEN PROPERTY ACT READS PERTINENTLY, EXCEPT
FOR ITS IMPORTANT CONTEXTUAL COLORING:  FN12  "...  WHOEVER WITH
UNLAWFUL OR FRAUDULENT INTENT SHALL TRANSPORT OR CAUSE TO BE
TRANSPORTED IN INTERSTATE  ...  COMMERCE ANY FALSELY MADE, FORGED,
ALTERED, OR COUNTERFEITED SECURITIES, KNOWING THE SAME TO HAVE BEEN
FALSELY MADE, FORGED, ALTERED, OR COUNTERFEITED,  ... SHALL BE PUNISHED
BY A FINE OF NOT MORE THAN $10,000 OR BY IMPRISONMENT FOR NOT MORE THAN
TEN YEARS, OR BOTH  ..." 

UNDER SEC. 215 THE EXPRESS REQUIREMENT IS THAT THE MAILING OR CAUSING
TO BE DELIVERED BY MAIL SHALL BE "FOR THE PURPOSE OF EXECUTING SUCH
SCHEME OR ARTIFICE OR ATTEMPTING SO TO DO."  THERE IS NO SUCH EXPLICIT
REQUIREMENT IN AMENDED SEC. 3.  THE WORDING THERE IS THAT THE
INTERSTATE TRANSPORTATION SHALL BE DONE "WITH UNLAWFUL OR FRAUDULENT
INTENT."  THIS DIFFERENT WORDING AND THE DIFFERENCE IN THE CONTEXTUAL
SETTINGS OF THE PROSCRIPTIONS HAVE MEANING, WE THINK, TO MAKE THEIR
EFFECTS DISTINCT.  WE EMPHASIZE AT THE OUTSET THAT AMENDED SEC. 3 IS
PART OF A SCHEME OF FEDERAL-STATE COOPERATION IN APPREHENDING AND
PUNISHING CRIMINALS, WHILE SEC. 215 DEALS ONLY WITH A DISTINCTLY
FEDERAL CRIME. 

THE LANGUAGE OF AMENDED SEC. 3 IS BROADER AND LESS SPECIFIC THAN THAT
OF SEC. 215.  THE WORD "UNLAWFUL" IN THE FORMER IS NOT TO BE IGNORED. 
NOR IS IT TO BE RENDERED MEANINGLESS BY IDENTIFYING IT WITH
"FRAUDULENT," MORE ESPECIALLY IF THE LATTER IS TO BE ENDOWED WITH THE
RESTRICTIVE CONNOTATION, NOT EXPRESSLY STATED, OF "FOR THE PURPOSE OF
EXECUTING SUCH SCHEME."  THE WORD "UNLAWFUL" HAS NO SUCH NARROW
MEANING.  LITERALLY IT IS BROAD ENOUGH TO INCLUDE ANY UNLAWFUL PURPOSE,
SUCH AS TO AID IN CONCEALING WHAT HAS BEEN DONE AND THUS IN AVOIDING
PROSECUTION AND RESTORATION. 

MOREOVER, IN THE KANN SETTING, THE QUOTED WORDING NOW SOUGHT TO BE
READ INTO AMENDED SEC. 3 WAS RESTRICTED TO SIGNIFICANCE IN RELATION TO
GETTING THE PROCEEDS OF THE CHECKS IRREVOCABLY, AND THE SUBSEQUENT
MAILING WAS HELD TO HAVE NO SIGNIFICANT INFLUENCE IN PRODUCING THAT
EFFECT OR, THEREFORE, UPON COMPLETING THE SCHEME; FN13  OR, MOREOVER,
TOWARD CONCEALING THE CRIME. 

WHETHER OR NOT IN THOSE CIRCUMSTANCES THE MAILING HAD CONCEALING
EFFECTS, THE SITUATION IN THIS RESPECT WAS VERY DIFFERENT FROM THE ONE
NOW PRESENTED.  THE CHECKS THERE WERE NOT FORGED OR ALTERED.  HERE THEY
WERE.  THERE THE CHECKS WERE HONORED BY THE DRAWEES AFTER THE MAILING. 
HERE THEY WERE DISHONORED AFTER THE TRANSPORTATION.  THERE THE PAYEE
INDORSERS KNEW THEY WOULD NOT BE. IN THAT CASE THE MAILING WAS MUCH
LESS LIKELY TO PRODUCE DISCLOSURE THAN WAS THE TRANSPORTATION IN THIS
ONE.  ACCORDINGLY THE IRREVOCABLE COMPLETION OF THE SCHEME WAS MUCH
LESS AFFECTED BY THE MAILING THAN IT WAS BY THE TRANSPORTATION HERE. 
SO ALSO WITH ANY CONCEALING EFFECT OF THE TRANSPORTATION AND,
THEREFORE, WITH ANY UNLAWFUL OR FRAUDULENT INTENT CONCERNING IT. 

INDEED THE KANN OPINION RECOGNIZED THAT IN OTHER CIRCUMSTANCES A
DIFFERENT RESULT MIGHT BE CALLED FOR, EVEN UNDER THE EXPLICIT AND
RESTRICTED PURPOSIVE REQUIREMENT OF SEC. 215.  FOR IN PUTTING ASIDE THE
CASES SUSTAINING CONVICTIONS WHERE USE OF THE MAILS WAS "A MEANS OF
CONCEALMENT SO THAT FURTHER FRAUDS WHICH ARE PART OF THE SCHEME MAY BE
PERPETRATED,"  FN14  THE COURT SAID: "IN THESE THE MAILING HAS
ORDINARILY HAD A MUCH CLOSER RELATION TO FURTHER FRAUDULENT CONDUCT
THAN HAS THE MERE CLEARING OF A CHECK, ALTHOUGH IT IS CONCEIVABLE THAT
THIS ALONE, IN SOME SETTINGS, WOULD BE ENOUGH."  323 U.S. AT 95. 

THE COURT WAS NOT DEALING WITH THE TRANSMISSION OF A FORGED CHECK,
CERTAIN TO BE DISHONORED AFTER THE MAILING OR TRANSPORTATION, OR
THEREFORE WITH A SITUATION IN WHICH THE FORBIDDEN TRANSMISSION WAS
EITHER SO LIKELY TO RESULT IN DISCLOSURE OF THE CRIME OR SO OBVIOUSLY
INTENDED TO PROVIDE AN INTERVAL FOR ESCAPE BEFORE THAT DISCLOSURE WOULD
BE MADE.  FN15  WE CANNOT SAY THAT IN CIRCUMSTANCES SUCH AS ARE NOW
HERE THE SAME RESULT WOULD HAVE BEEN REACHED IN APPLYING SEC. 215, IN
VIEW OF THESE DIFFERENCES AND THE EXPRESS RESERVATION MADE FOR OTHER
SITUATIONS INVOLVING GREATER POSSIBILITIES FOR CONCEALMENT. 

THIS IS ENOUGH TO DISTINGUISH THE KANN CASE.  BUT WE THINK, IN
ADDITION, WE WOULD BE ALTOGETHER UNJUSTIFIED TO REWRITE THE WORDS "WITH
UNLAWFUL OR FRAUDULENT INTENT" TO MEAN "FOR THE PURPOSE OF EXECUTING
SUCH SCHEME OR ARTIFICE" IN THE SENSE OF AIDING TO SECURE POSSESSION OF
THE PROCEEDS OF THE CHECKS IRREVOCABLY, WHICH WAS THE MEANING GIVEN
THAT PHRASE IN THE KANN DECISION.  APART FROM THE ABSENCE HERE OF
IRREVOCABILITY IN THE LEGAL SENSE, TO DO THIS WOULD BE TO DISREGARD
WHAT WE THINK WAS CONGRESS' CLEAR PURPOSE TO MAKE AMENDED SEC. 3, LIKE
THE SECTION IN ITS ORIGINAL FORM, A MEANS OF APPREHENSION AND OF
PUNISHMENT SUBSTANTIALLY, THOUGH NOT STRICTLY IN THE LEGAL SENSE, FOR
PAST CRIMES OF THE SORT SPECIFIED IN SITUATIONS WHERE INTERSTATE
COMMERCE WAS USED AS A METHOD OF DEFEATING THE STATE'S EXERCISE OF
THOSE FUNCTIONS.    WE CANNOT THUS TEAR THE TRANSPORTATION OF FORGED
CHECKS FROM ITS SETTING AND GIVE IT THE DISTINCT STATUS, WITH REFERENCE
TO INTENT, AS COMPARED WITH THE OTHER FORBIDDEN TRANSPORTATIONS, WHICH
WE THINK WOULD RESULT FROM RESPONDENT'S READING.  IN AMENDING SEC. 3
CONGRESS WAS EXTENDING THE FEDERAL LAW ENFORCEMENT ARM TO REACH
PRIMARILY THE LARGER DEALERS IN FORGED AND COUNTERFEITED SECURITIES. 
FN16  NOT ONLY FORGED CHECKS, BUT FORGED OR COUNTERFEITED BONDS AND
COUPONS, AS WELL AS OTHER FORMS OF SECURITIES, AND THE INSTRUMENTS WITH
WHICH THESE ARE MADE, WERE THE TARGET.  THE LEGISLATIVE HISTORY SHOWS
THAT THE PURPOSE WAS TO BRING OPERATORS IN THESE FALSE SECURITIES INTO
SUBSTANTIALLY THE SAME REACH OF FEDERAL POWER AS APPLIED TO OTHERS
DEALING IN STOLEN GOODS, SECURITIES AND MONEY.  FN17  IN ONE RESPECT
THE OBJECT WAS TO MAKE THEIR APPREHENSION AND CONVICTION MORE EASY, FOR
THE $5,000 MINIMUM IN VALUE WAS INTENTIONALLY OMITTED.  THE AMENDMENT
WAS THUS AN EXTENSION, NOT A CONTRACTION OF THE PREEXISTING
PROVISIONS. 

THE PURPOSE HOWEVER WAS NOT TO REACH PERSONS INNOCENTLY, BUT
KNOWINGLY, TRANSPORTING THE FORBIDDEN ARTICLES.  HENCE IT WAS NECESSARY
TO INTRODUCE SAFEGUARDING LANGUAGE.  THIS WAS DONE BY INSERTING "WITH
UNLAWFUL OR FRAUDULENT INTENT."  BROAD AS THIS WAS, IT WAS SUFFICIENT
FOR THE PURPOSE OF EXCLUDING INNOCENT TRANSPORTATION.  WE DO NOT THINK
IT WAS ALSO INTENDED TO SAFEGUARD THE COUNTERFEITER OR PROFESSIONAL
FORGER, SIMPLY BECAUSE THE TRANSPORTATION ALLEGED AND PROVED DOES NOT
AID HIM INITIALLY IN SECURING THE POSSESSION OF THE PROCEEDS OF HIS
FRAUDULENT DISPOSITIONS.  TO TAKE THIS VIEW WOULD NULLIFY MUCH OF THE
AMENDMENT'S INTENDED EFFECTIVENESS. 

NOR CAN WE TREAT FORGED CHECKS DIFFERENTLY FROM OTHER SECURITIES,
EITHER BECAUSE THEY ARE FORGED OR BECAUSE THE FORGERY IS DONE BY
"LITTLE FELLOWS" WHO PERHAPS WERE NOT THE PRIMARY AIM OF THE
CONGRESSIONAL FIRE.  THE STATUTE EXPRESSLY INCLUDES CHECKS.  FN18  IT
MAKES NO DISTINCTION BETWEEN LARGE AND SMALL OPERATORS.  THERE IS NO
ROOM FOR IMPLYING SUCH A DISTINCTION IN VIEW OF THE ABSENCE OF THE
$5,000 LIMITATION WITH RESPECT TO THE TRANSPORTATION OF FORGED CHECKS. 
WHETHER OR NOT CONGRESS HAD IN MIND PRIMARILY SUCH SMALL SCALE
TRANSACTIONS AS SHERIDAN'S, HIS OPERATION WAS COVERED LITERALLY AND WE
THINK PURPOSIVELY.  HAD THIS NOT BEEN INTENDED, APPROPRIATE EXCEPTION
COULD EASILY HAVE BEEN MADE. 

IF IT IS ASSUMED THAT THE EVIDENCE SUPPORTS THE CONCLUSIONS ON WHICH
THE CASE HAS COME HERE, FN19  SHERIDAN PERPETRATED THREE FRAUDS,
INCLUDING TWO FORGERIES, IN ONE DAY.  FORGERY, THUS REPEATED, IS NOT
AMATEURISH, THOUGH THE AMOUNTS OBTAINED ARE SMALL.  NOTORIOUSLY THE
CRIME DONE ONCE BECOMES HABITUAL.  AND FORGERS ARE NOTORIOUSLY
ITINERANT.  DRAWING THE CHECK UPON AN OUT-OF-STATE BANK, KNOWING IT
MUST BE SENT THERE FOR PRESENTATION, IS AN OBVIOUSLY FACILE WAY TO
DELAY AND OFTEN TO DEFEAT APPREHENSION, CONVICTION AND RESTORATION OF
THE ILL-GOTTEN GAIN.  THERE ARE SOUND REASONS THEREFORE WHY CONGRESS
WOULD WISH NOT TO EXCLUDE SUCH PERSONS, AMONG THEM THE VERY EASE WITH
WHICH THEY MAY ESCAPE THE STATE'S GRASP. 

A WORD WILL DISPOSE OF THE IDEA THAT SHERIDAN DID NOT "CAUSE" THE
TRANSPORTATION.  CERTAINLY HE KNEW THE CHECKS WOULD HAVE TO BE SENT TO
THE MISSOURI BANK FOR COLLECTION.  GIVEN THE PROVEN FORGERY AND
UTTERING, NO OTHER CONCLUSION WOULD BE POSSIBLE.  NECESSARILY, TOO, IT
WOULD FOLLOW HE INTENDED THE PAYING BANK TO SEND THE CHECKS THERE FOR
THAT PURPOSE.  HE KNEW THEY MUST CROSS STATE LINES TO BE PRESENTED. 
ONE WHO INDUCES ANOTHER TO DO EXACTLY WHAT HE INTENDS, AND DOES SO BY
DEFRAUDING HIM, HARDLY CAN BE HELD NOT TO "CAUSE" WHAT IS SO DONE.  THE
KANN CASE ITSELF IS AUTHORITY FOR THE GOVERNMENT ON THIS POINT, IN FACT
GOES FARTHER THAN IS NECESSARY HERE.  FOR, AS RESPECTED THE SAME
CONTENTION THERE ADVANCED, THE OPINION SAID:  "...  WE THINK IT A FAIR
INFERENCE THAT THOSE DEFENDANTS WHO DREW, OR THOSE WHO CASHED, THE
CHECKS BELIEVED THAT THE BANKS WHICH TOOK THEM WOULD MAIL THEM TO THE
BANKS ON WHICH THEY WERE DRAWN, AND, ASSUMING THE PETITIONER
PARTICIPATED IN THE SCHEME, THEIR KNOWLEDGE WAS HIS KNOWLEDGE."  323
U.S. AT 93.  THE STATEMENT WAS IN ANSWER TO ARGUMENT THAT KANN HAD NOT
"CAUSED" THE MAILING. 

                                 III. 

SINCE THE CIRCUIT COURT OF APPEALS REVERSED THE CONVICTION ON ALL
COUNTS ON ITS VIEW THAT THE KANN CASE WAS CONTROLLING, IT DID NOT
DISCUSS RESPONDENT'S OTHER CONTENTIONS.  THESE ARE RENEWED HERE.  THEY
ARE, FIRST, THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT;
AND, SECOND, THAT CERTAIN TESTIMONY WAS INADMISSIBLE, INCLUDING THAT OF
THE FEDERAL AGENT TO THE EFFECT THAT THE DEPARTMENT OF COMMERCE HAD NO
AGENCY "U.S.E.F.C. 14A" NOR ONE "A. J. DAVIS, COMMISSIONER."  ON THE
FACTS THE TWO CONTENTIONS ARE CLOSELY RELATED.  FN20 

WE EXPRESS NO OPINION AS TO THE ADMISSIBILITY OF THE EVIDENCE.  IT IS
DESIRABLE THAT THE LITIGANTS AND THIS COURT, IF THE CASE IS AGAIN
BEFORE US, HAVE THE BENEFIT OF THE VIEWS OF THE CIRCUIT COURT OF
APPEALS.  SEE UNITED STATES V. BALLARD, 322 U.S. 78, 88.  HOWEVER, WITH
RESPECT TO THE FIRST CONTENTION, UPON THE ASSUMPTION THAT THE RECORD,
AS STIPULATED, CORRECTLY SETS FORTH THE EVIDENCE INTRODUCED BY THE
GOVERNMENT AND ALSO THAT ALL THE EVIDENCE WAS ADMISSIBLE, IT FOLLOWS
FROM OUR DISCUSSION OF THE STATUTE THAT THE EVIDENCE WAS SUFFICIENT TO
SEND THE CASE TO THE JURY.  THE JURY PROPERLY COULD HAVE INFERRED THAT
RESPONDENT HAD FORGED THE CHECKS IN QUESTION; FN21  THAT HE THEREFORE
HAD KNOWLEDGE OF THEIR SPURIOUS CHARACTER; AND, FURTHERMORE, THAT THE
CHECKS WERE NEGOTIATED AND CAUSED TO BE TRANSPORTED WITH UNLAWFUL OR
FRAUDULENT INTENT. 

HOWEVER, COUNSEL ASSIGNED HERE FOR RESPONDENT CALLS OUR ATTENTION TO
THE FACT THAT THE INSTRUCTIONS GIVEN AND THE RULINGS ON INSTRUCTIONS
REQUESTED DO NOT APPEAR IN THE RECORD.  HE SUGGESTS THAT, IF THE CAUSE
SHOULD BE REMANDED TO THE CIRCUIT COURT OF APPEALS FOR FURTHER
PROCEEDINGS, IT WOULD BE APPROPRIATE FOR US TO SUGGEST TO THAT COURT IN
THE REMAND THAT IT EXERCISE ITS POWERS TO SECURE A COMPLETE BILL OF
EXCEPTIONS, INCLUDING THE INSTRUCTIONS GIVEN AND ALL PERTINENT RULINGS
IN CONNECTION THEREWITH. 

THAT COURSE HAS BEEN FOLLOWED IN UNUSUAL CIRCUMSTANCES.  SEE MILLER
V. UNITED STATES, 317 U.S. 192, 199-200; HELWIG V. UNITED STATES, 328
U.S. 820.  SUCH CIRCUMSTANCES ARE PRESENTED ON THIS RECORD.  RESPONDENT
DEFENDED HIMSELF AT THE TRIAL.  HE DID NOT HAVE COUNSEL ON THE APPEAL. 
THE CASE IS HERE IN FORMA PAUPERIS, AND IT IS STATED IN HIS BRIEF THAT
"RESPONDENT IS NOW CONFINED IN A MICHIGAN STATE PRISON, IS WITHOUT
FUNDS AND IS UNABLE TO EMPLOY COUNSEL OF HIS OWN CHOICE."  SINCE THE
DECISION IN MILLER V. UNITED STATES, SUPRA, THE FEDERAL RULES OF
CRIMINAL PROCEDURE HAVE TAKEN EFFECT  FN22  AND EXPRESSLY PROVIDE THAT
THEY SHALL GOVERN ALL PROCEEDINGS PENDING AT THE EFFECTIVE DATE "SO FAR
AS JUST AND PRACTICABLE."  FN23  RULE 59.  BILLS OF EXCEPTION ARE
ABOLISHED.  FN24  SINCE THE RECORD CONTAINS A STATEMENT OF THE
EVIDENCE, APPARENTLY THE ONLY SERIOUS DEFICIENCY IS IN THE MATTERS
RELATING TO THE INSTRUCTIONS, NOTED ABOVE.  IN THESE CIRCUMSTANCES WE
THINK TAKING ANY CORRECTIVE ACTION, IN THIS RESPECT OR OTHERWISE, IN
THE INTEREST OF SEEING THAT SUBSTANTIAL JUSTICE IS DONE, WELL MAY BE
LEFT TO THE JUDGMENT OF THE COURT OF APPEALS. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THAT COURT FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

FN1  THE RECORD STATES THAT RESPONDENT "HAVING BEEN FULLY INFORMED OF
HIS CONSTITUTIONAL RIGHT TO COUNSEL, AND HAVING BEEN ASKED WHETHER HE
DESIRED COUNSEL ASSIGNED,  ...  STATED HE DID NOT DESIRE THE ASSISTANCE
OF COUNSEL." 

FN2  SINCE CERTIORARI WAS GRANTED CLARKE V. SANFORD, 156 F.2D 115,
HAS BEEN DECIDED BY THE FIFTH CIRCUIT.  IT APPEARS TO BE IN CONFLICT
WITH THE CASE AT BAR.  SEE ALSO TOLLE V. SANFORD, 58 F.SUPP.  695. 

FN3  THE PROCEEDINGS AT TRIAL WERE NOT STENOGRAPHICALLY REPORTED. 
HENCE THE PARTIES PREPARED A STATEMENT OF EVIDENCE FROM MEMORY AND FROM
NOTES MADE DURING THE COURSE OF THE TRIAL, AND STIPULATED THAT IT
"SUBSTANTIALLY SETS FORTH THE TESTIMONY AND EVIDENCE" PRESENTED BY THE
GOVERNMENT.  UPON APPROVAL OF THE DISTRICT COURT, THE STATEMENT WAS
MADE PART OF THE RECORD. 

FN4  COUNT TWO IS IDENTICAL IN EFFECT WITH COUNT ONE FOR THE PURPOSES
OF THE ARGUMENT MADE HERE.  COUNT 3, HOWEVER, INVOLVES A CHECK SIGNED
BY RESPONDENT IN HIS OWN NAME AS MAKER, AND THE GOVERNMENT - APPARENTLY
OF THE VIEW THAT SUCH A CHECK IS NOT "ALTERED" OR "COUNTERFEITED" -
STATES:  "IT IS NOT CLEAR THAT SUCH A CHECK IS FALSELY MADE OR FORGED
WITHIN THE GENERAL LAW." 

FN5  THE PERTINENT TEXT OF SEC. 3 IS AS FOLLOWS:  "WHOEVER SHALL
TRANSPORT OR CAUSE TO BE TRANSPORTED IN INTERSTATE OR FOREIGN COMMERCE
ANY GOODS WARES, OR MERCHANDISE, SECURITIES, OR MONEY, OF THE VALUE OF
$5,000 OR MORE THERETOFORE STOLEN, FELONIOUSLY CONVERTED, OR TAKEN
FELONIOUSLY BY FRAUD OR WITH INTENT TO STEAL OR PURLOIN, KNOWING THE
SAME TO HAVE BEEN SO STOLEN, FELONIOUSLY CONVERTED, OR TAKEN, OR
WHOEVER WITH UNLAWFUL OR FRAUDULENT INTENT SHALL TRANSPORT OR CAUSE TO
BE TRANSPORTED IN INTERSTATE OR FOREIGN COMMERCE ANY FALSELY MADE,
FORGED, ALTERED, OR COUNTERFEITED SECURITIES, KNOWING THE SAME TO HAVE
BEEN FALSELY MADE, FORGED, ALTERED, OR COUNTERFEITED, OR WHOEVER WITH
UNLAWFUL OR FRAUDULENT INTENT SHALL TRANSPORT, OR CAUSE TO BE
TRANSPORTED IN INTERSTATE OR FOREIGN COMMERCE, ANY BED PIECE, BED
PLATE, ROLL, PLATE, DIE, SEAL, STONE, TYPE, OR OTHER TOOL, IMPLEMENT,
OR THING USED OR FITTED TO BE USED IN FALSELY MAKING, FORGING,
ALTERING, OR COUNTERFEITING ANY SECURITY, OR ANY PART THEREOF, SHALL BE
PUNISHED BY A FINE OF NOT MORE THAN $10,000 OR BY IMPRISONMENT FOR NOT
MORE THAN TEN YEARS, OR BOTH  ..."  48 STAT. 794, 795, AS AMENDED BY 53
STAT. 1178. 

FN6  THE ACT, SEC. 2(B), DEFINES THE TERM "SECURITIES" AS INCLUDING
CHECKS. 

FN7  THE SUFFICIENCY OF THE EVIDENCE TO PROVE THE FACT OF FORGERY IS
CHALLENGED, CF. PART III, BUT FOR THE PURPOSES OF THE PRINCIPAL
CONTENTIONS, IT IS CONCEDED ARGUENDO. 

FN8  SEE HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY ON H.R.
10287, 70TH CONG., 1ST SESS.; H. REP. 2528, 70TH CONG., 2D SESS.; H.
REP. 1462, 73D CONG., 2D SESS.; S. REP. 538, 73D CONG., 2D SESS.; H.
REP. 1599, 73D CONG., 2D SESS.; H. REP. 422, 76TH CONG., 1ST SESS.; S.
REP. 674, 76TH CONG., 1ST SESS. 

SEE NOTE 5 FOR PERTINENT TEXT OF SEC. 3. 

FN9  THE NATIONAL STOLEN PROPERTY ACT IS SAID TO BE MODELED AFTER THE
NATIONAL MOTOR VEHICLE THEFT ACT, 41 STAT. 324.  H. REP. 2528, 70TH
CONG., 2D SESS., 4; H. REP. 1462, 73D CONG., 2D SESS., 2. 

SEE ALSO THE ANIMAL INDUSTRY ACT OF 1884, 23 STAT. 31; THE ACT FOR
THE SUPPRESSION OF LOTTERY TRAFFIC OF 1895, 28 STAT. 963; THE PURE FOOD
AND DRUG ACT OF 1906, 34 STAT. 768; THE WHITE SLAVE TRAFFIC ACT OF
1910, 36 STAT. 825; THE WEBB-KENYON ACT OF 1913, 37 STAT. 699. 

FN10  SEE H. REP. 2528, 70TH CONG., 2D SESS., 2:  "MOST OF THE STATES
HAVE LAWS COVERING THE UNDERLYING PRINCIPLE OF THIS PROPOSED
LEGISLATION, BUT IT MUST BE REMEMBERED THAT THE JURISDICTION OF THE
STATE COURT DOES NOT REACH INTO ALL OF THE STATES, ESPECIALLY WHEN THE
MATTER OF PRODUCING WITNESSES AND BRINGING TO THE COURT THE PROOF IS
CONCERNED."  SEE ALSO HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY ON
H.R. 10287, SUPRA NOTE 8, PASSIM. 

FN11  ONE WHO KNOWINGLY TRANSPORTS STOLEN GOODS WOULD DO SO FOR ONE
OF THREE SORTS OF OBJECTS, NAMELY:  (1) TO DISPOSE OF THEM OR USE THEM
UNLAWFULLY; (2) TO AID IN CONCEALING THE THEFT, THUS AVOIDING
PROSECUTION FOR HIMSELF OR ANOTHER; OR (3) FOR SOME PURPOSE WHOLLY
INNOCENT, SUCH AS TO TURN THEM OVER TO THE POLICE OR THE RIGHTFUL
OWNER. 

IN THE FIRST TWO INSTANCES THERE WOULD BE INHERENT IN THE ACT
"UNLAWFUL INTENT" OR "FRAUDULENT INTENT," THOUGH PROOF OF THIS MIGHT
NOT BE REQUIRED APART FROM THE PROOF OF KNOWLEDGE AND ABSENCE OF ANY
SHOWING OF INNOCENT PURPOSE.  CONGRESS OBVIOUSLY DID NOT INTENT TO MAKE
CRIMINAL SUCH AN INSTANCE AS THE THIRD.  HOWEVER, PROOF OF THE INNOCENT
INTENT MIGHT BE REQUIRED AS MATTER OF DEFENSE, THE OTHER ELEMENTS BEING
MADE OUT.  IN OTHER WORDS, IT MAY WELL BE DOUBTED THAT ADDING THE
REQUIREMENT "WITH UNLAWFUL OR FRAUDULENT INTENT" IN THE AMENDED PART OF
THE SECTION ADDED ANYTHING TO THE SUBSTANTIVE CRIME; FOR ITS EFFECT IS
APPARENTLY ONLY TO REQUIRE THE STATE TO ALLEGE AND PROVE THE UNLAWFUL
OR FRAUDULENT INTENT, RATHER THAN TO REQUIRE THE DEFENDANT TO ALLEGE
AND PROVE HIS INNOCENT PURPOSE. 

FN12  SEE NOTE 5. 

FN13  IT WAS AS TO THIS CONCLUSION THAT FOUR MEMBERS OF THE COURT
DISSENTED.  323 U.S. AT 95. 

FN14  UNITED STATES V. LOWE, 115 F.2D 596; DUNHAM V. UNITED STATES,
125 F.2D 895; UNITED STATES V. RIEDEL, 126 F.2D 81. 

FN15  THE DISCOVERY OF THE SCHEME RESULTED FROM AN EXAMINATION OF THE
ALLEGEDLY DEFRAUDED CORPORATION'S BOOKS BY A GOVERNMENT EXAMINER, NOT
AS HERE FROM RETURN OF THE CHECKS UNPAID BY THE FORWARDING BANK. 

FN16 SEE THE LETTER FROM THE ATTORNEY GENERAL TO SENATOR ASHURST,
CHAIRMAN OF THE SENATE COMMITTEE ON THE JUDICIARY, SET OUT IN S. REP.
674, 76TH CONG., 1ST SESS., 2. 

FN17  IBID.    FN18  SEE NOTE 6. 

FN19  SEE PART III. 

FN20  IT IS ARGUED THAT EXCLUDING THE EVIDENCE REGARDED AS
INADMISSIBLE WOULD RENDER THE REMAINING EVIDENCE INSUFFICIENT. 

FN21  THAT IS, THE CHECKS WHICH FORM THE BASIS OF COUNTS 1 AND 2.  WE
EXPRESS NO OPINION CONCERNING THE CHECK ON WHICH COUNT 3 WAS BASED. 
SEE NOTE 4. 

FN22  18 U.S.C. FOLLOWING SEC. 687, EFFECTIVE MARCH 21, 1946. 

FN23  IN THIS CASE THE INDICTMENT WAS FILED ON OCTOBER 27, 1944; THE
JURY VERDICT AND JUDGMENT WERE FILED ON NOVEMBER 30, 1944; THE JUDGMENT
OF THE CIRCUIT COURT OF APPEALS WAS ENTERED ON NOVEMBER 19, 1945; AND A
GOVERNMENT PETITION FOR REHEARING WAS DENIED ON JANUARY 28, 1946. 
CERTIORARI WAS GRANTED ON MAY 13, 1946. 

FN24  SEE RULE 39(C) AND THE NOTE PREPARED UNDER THE DIRECTION OF THE
ADVISORY COMMITTEE ON RULES FOR CRIMINAL PROCEDURE.  "THE NEW RULE
SUPERSEDES RULES VII, VIII, AND IX OF THE CRIMINAL APPEALS RULES OF
1933, 292 U.S. 661.  ONE OF THE RESULTS OF THE CHANGE IS THE ABOLITION
OF BILLS OF EXCEPTIONS."  S. DOC. 175, 79TH CONG., 2D SESS., 62-63. 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS DISSENT. 
..END :




FREEMAN V. HEWIT, 329 U.S. 249 


NO. 3.  ARGUED NOVEMBER 8, 1944.  REARGUED OCTOBER 14, 1946.  - DECIDED
DECEMBER 16, 1946.  - 221 IND. 675, 51 N.E.2D 6, REVERSED. 


A TRUSTEE OF AN ESTATE CREATED BY THE WILL OF A DECEDENT DOMICILED IN
INDIANA AT THE TIME OF HIS DEATH INSTRUCTED HIS INDIANA BROKER TO
ARRANGE FOR THE SALE OF CERTAIN SECURITIES AT STATED PRICES.  THEY WERE
OFFERED FOR SALE ON THE NEW YORK STOCK EXCHANGE THROUGH THE INDIANA
BROKER'S NEW YORK CORRESPONDENTS.  WHEN A PURCHASER WAS FOUND, THE
TRUSTEE DELIVERED THE SECURITIES IN INDIANA TO HIS INDIANA BROKER, WHO
MAILED THEM TO NEW YORK.  THE NEW YORK BROKERS MADE DELIVERY, RECEIVED
THE PURCHASE PRICE, AND REMITTED THE PROCEEDS (LESS EXPENSE AND
COMMISSION) TO THE INDIANA BROKER, WHO DELIVERED THE PROCEEDS (LESS
COMMISSION) TO THE TRUSTEE IN INDIANA.  HELD: 

1.  THE INDIANA GROSS INCOME TAX ACT OF 1933 CANNOT CONSTITUTIONALLY
BE APPLIED TO THE GROSS RECEIPTS FROM THESE SALES, SINCE IT WOULD
CONSTITUTE A DIRECT BURDEN ON INTERSTATE COMMERCE IN VIOLATION OF THE
COMMERCE CLAUSE.  PP. 252-259. 

2.  MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33; AMERICAN MFG. CO.
V. ST. LOUIS, 250 U.S. 459; HARVESTER CO. V. DEPARTMENT OF TREASURY,
322 U.S. 340, DIFFERENTIATED.  PP. 257, 258. 

3.  THE COMMERCE CLAUSE PROTECTS INTERSTATE SALES OF INTANGIBLES AS
WELL AS INTERSTATE SALES OF TANGIBLES.  P. 258. 

FREEMAN, TRUSTEE, V. HEWIT, DIRECTOR OF GROSS INCOME TAX DIVISION. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

APPEAL FROM A DECISION OF THE SUPREME COURT OF INDIANA SUSTAINING
APPLICATION OF THE INDIANA GROSS INCOME TAX ACT OF 1933 TO GROSS
RECEIPTS FROM INTERSTATE SALES OF SECURITIES.  221 IND. 675, 51 N.E.2D
6.  REVERSED, P. 259. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS ANOTHER PHASE OF THE INDIANA GROSS INCOME TAX ACT
OF 1933, WHICH HAS BEEN BEFORE THIS COURT IN A SERIES OF CASES
BEGINNING WITH ADAMS MFG. CO. V. STOREN, 304 U.S. 307.  THE ACT IMPOSES
A TAX UPON "THE RECEIPT OF THE ENTIRE GROSS INCOME" OF RESIDENTS AND
DOMICILIARIES OF INDIANA BUT EXCEPTS FROM ITS SCOPE "SUCH GROSS INCOME
AS IS DERIVED FROM BUSINESS CONDUCTED IN COMMERCE BETWEEN THIS STATE
AND OTHER STATES OF THE UNITED STATES  ...  TO THE EXTENT TO WHICH THE
STATE OF INDIANA IS PROHIBITED FROM TAXING SUCH GROSS INCOME BY THE
CONSTITUTION OF THE UNITED STATES."  INDIANA LAWS 1933, PP. 388, 392,
AS AMENDED, LAWS 1937, PP. 611, 615, BURNS' IND. STAT. ANNO.  SEC.  64
2601 ET SEQ. 

APPELLANT'S PREDECESSOR, DOMICILED IN INDIANA, WAS TRUSTEE OF AN
ESTATE CREATED BY THE WILL OF A DECEDENT DOMICILED IN INDIANA AT THE
TIME OF HIS DEATH.  DURING 1940, THE TRUSTEE INSTRUCTED HIS INDIANA
BROKER TO ARRANGE FOR THE SALE AT STATED PRICES OF SECURITIES FORMING
PART OF THE TRUST ESTATE.  THROUGH THE BROKER'S NEW YORK CORRESPONDENTS
THE SECURITIES WERE OFFERED FOR SALE ON THE NEW YORK STOCK EXCHANGE. 
WHEN A PURCHASER WAS FOUND, THE NEW YORK BROKERS NOTIFIED THE INDIANA
BROKER WHO IN TURN INFORMED THE TRUSTEE, AND THE LATTER BROUGHT THE
SECURITIES TO HIS BROKER FOR MAILING TO NEW YORK.  UPON THEIR DELIVERY
TO THE PURCHASERS, THE NEW YORK BROKERS RECEIVED THE PURCHASE PRICE,
WHICH, AFTER DEDUCTING EXPENSES AND COMMISSION, THEY TRANSMITTED TO THE
INDIANA BROKER.  THE LATTER DELIVERED THE PROCEEDS LESS HIS COMMISSION
TO THE TRUSTEE.  ON THE GROSS RECEIPTS OF THESE SALES, AMOUNTING TO
$65,214.20, INDIANA, UNDER THE ACT OF 1933, IMPOSED A TAX OF 1%.
HAVING PAID THE TAX UNDER PROTEST, THE TRUSTEE BROUGHT THIS SUIT FOR
ITS RECOVERY.  THE SUPREME COURT OF INDIANA, REVERSING A COURT OF FIRST
INSTANCE, SUSTAINED THE TAX ON THE GROUND THAT THE SITUS OF THE
SECURITIES WAS IN INDIANA.  221 IND. 675, 51 N.E.2D 6.  THE CASE IS
HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC.
344(A), AND HAS HAD THE CONSIDERATION WHICH TWO ARGUMENTS AFFORD. 

THE POWER OF THE STATES TO TAX AND THE LIMITATIONS UPON THAT POWER
IMPOSED BY THE COMMERCE CLAUSE HAVE NECESSITATED A LONG, CONTINUOUS
PROCESS OF JUDICIAL ADJUSTMENT.  THE NEED FOR SUCH ADJUSTMENT IS
INHERENT IN A FEDERAL GOVERNMENT LIKE OURS, WHERE THE SAME TRANSACTION
HAS ASPECTS THAT MAY CONCERN THE INTERESTS AND INVOLVE THE AUTHORITY OF
BOTH THE CENTRAL GOVERNMENT AND THE CONSTITUENT STATES.  FN1 

THE HISTORY OF THIS PROBLEM IS SPREAD OVER HUNDREDS OF VOLUMES OF OUR
REPORTS.  TO ATTEMPT TO HARMONIZE ALL THAT HAS BEEN SAID IN THE PAST
WOULD NEITHER CLARIFY WHAT HAS GONE BEFORE NOR GUIDE THE FUTURE. 
SUFFICE IT TO SAY THAT ESPECIALLY IN THIS FIELD OPINIONS MUST BE READ
IN THE SETTING OF THE PARTICULAR CASES AND AS THE PRODUCT OF
PREOCCUPATION WITH THEIR SPECIAL FACTS. 

OUR STARTING POINT IS CLEAR.  IN TWO RECENT CASES WE APPLIED THE
PRINCIPLE THAT THE COMMERCE CLAUSE WAS NOT MERELY AN AUTHORIZATION TO
CONGRESS TO ENACT LAWS FOR THE PROTECTION AND ENCOURAGEMENT OF COMMERCE
AMONG THE STATES, BUT BY ITS OWN FORCE CREATED AN AREA OF TRADE FREE
FROM INTERFERENCE BY THE STATES.  IN SHORT, THE COMMERCE CLAUSE EVEN
WITHOUT IMPLEMENTING LEGISLATION BY CONGRESS IS A LIMITATION UPON THE
POWER OF THE STATES.  SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761;
MORGAN V. VIRGINIA, 328 U.S. 373.  IN SO DECIDING WE REAFFIRMED, UPON
FULLEST CONSIDERATION, THE COURSE OF ADJUDICATION UNBROKEN THROUGH THE
NATION'S HISTORY.  THIS LIMITATION ON STATE POWER, AS THE MORGAN CASE
SO WELL ILLUSTRATES, DOES NOT MERELY FORBID A STATE TO SINGLE OUT
INTERSTATE COMMERCE FOR HOSTILE ACTION.  A STATE IS ALSO PRECLUDED FROM
TAKING ANY ACTION WHICH MAY FAIRLY BE DEEMED TO HAVE THE EFFECT OF
IMPEDING THE FREE FLOW OF TRADE BETWEEN STATES.  IT IS IMMATERIAL THAT
LOCAL COMMERCE IS SUBJECTED TO A SIMILAR ENCUMBRANCE.  IT MAY COMMEND
ITSELF TO A STATE TO ENCOURAGE A PASTORAL INSTEAD OF AN INDUSTRIAL
SOCIETY.  THAT IS ITS CONCERN AND ITS PRIVILEGE.  BUT TO COMPARE A
STATE'S TREATMENT OF ITS LOCAL TRADE WITH THE EXERTION OF ITS AUTHORITY
AGAINST COMMERCE IN THE NATIONAL DOMAIN IS TO COMPARE INCOMPARABLES. 

THESE PRINCIPLES OF LIMITATION ON STATE POWER APPLY TO ALL STATE
POLICY NO MATTER WHAT STATE INTEREST GIVES RISE TO ITS LEGISLATION.  A
BURDEN ON INTERSTATE COMMERCE IS NONE THE LIGHTER AND NO LESS
OBJECTIONABLE BECAUSE IT IS IMPOSED BY A STATE UNDER THE TAXING POWER
RATHER THAN UNDER MANIFESTATIONS OF POLICE POWER IN THE CONVENTIONAL
SENSE.  BUT, IN THE NECESSARY ACCOMMODATION BETWEEN LOCAL NEEDS AND THE
OVERRIDING REQUIREMENT OF FREEDOM FOR THE NATIONAL COMMERCE, THE
INCIDENCE OF A PARTICULAR TYPE OF STATE ACTION MAY THROW THE BALANCE IN
SUPPORT OF THE LOCAL NEED BECAUSE INTERFERENCE WITH THE NATIONAL
INTEREST IS REMOTE OR UNSUBSTANTIAL.  A POLICE REGULATION OF LOCAL
ASPECTS OF INTERSTATE COMMERCE IS A POWER OFTEN ESSENTIAL TO A STATE IN
SAFEGUARDING VITAL LOCAL INTERESTS.  AT LEAST UNTIL CONGRESS CHOOSES TO
ENACT A NATION-WIDE RULE, THE POWER WILL NOT BE DENIED TO THE STATE. 
THE MINNESOTA RATE CASES, 230 U.S. 352, 402 ET SEQ.; S.C. HWY.  DEPT. 
V. BARNWELL BROS., 303 U.S. 177; UNION BROKERAGE CO. V. JENSEN, 322
U.S. 202, 209-12.  STATE TAXATION FALLING ON INTERSTATE COMMERCE, ON
THE OTHER HAND, CAN ONLY BE JUSTIFIED AS DESIGNED TO MAKE SUCH COMMERCE
BEAR A FAIR SHARE OF THE COST OF THE LOCAL GOVERNMENT WHOSE PROTECTION
IT ENJOYS.  BUT REVENUE SERVES AS WELL NO MATTER WHAT ITS SOURCE.  TO
DENY TO A STATE A PARTICULAR SOURCE OF INCOME BECAUSE IT TAXES THE VERY
PROCESS OF INTERSTATE COMMERCE DOES NOT IMPOSE A CRIPPLING LIMITATION
ON A STATE'S ABILITY TO CARRY ON ITS LOCAL FUNCTION.  MOREOVER, THE
BURDEN ON INTERSTATE COMMERCE INVOLVED IN A DIRECT TAX UPON IT IS
INHERENTLY GREATER, CERTAINLY LESS UNCERTAIN IN ITS CONSEQUENCES, THAN
RESULTS FROM THE USUAL POLICE REGULATIONS.  THE POWER TO TAX IS A
DOMINANT POWER OVER COMMERCE.  BECAUSE THE GREATER OR MORE THREATENING
BURDEN OF A DIRECT TAX ON COMMERCE IS COUPLED WITH THE LESSER NEED TO A
STATE OF A PARTICULAR SOURCE OF REVENUE, ATTEMPTS AT SUCH TAXATION HAVE
ALWAYS BEEN MORE CAREFULLY SCRUTINIZED AND MORE CONSISTENTLY RESISTED
THAN POLICE POWER REGULATIONS OF ASPECTS OF SUCH COMMERCE.  THE TASK OF
SCRUTINIZING IS A TASK OF DRAWING LINES.  THIS IS THE HISTORIC DUTY OF
THE COURT SO LONG AS CONGRESS DOES NOT UNDERTAKE TO MAKE SPECIFIC
ARRANGEMENTS BETWEEN THE NATIONAL GOVERNMENT AND THE STATES IN REGARD
TO REVENUES FROM INTERSTATE COMMERCE.  SEE ACT OF JULY 3, 1944, 58
STAT. 723; H. DOC. 141, 79TH CONG., 1ST SESS., "MULTIPLE TAXATION OF
AIR COMMERCE"; AND COMPARE 54 STAT. 1059, 4 U.S.C. SEC. 13 ET SEQ.
(PERMISSION TO STATES TO EXTEND TAXING POWER TO FEDERAL AREAS). 
CONSIDERATIONS OF PROXIMITY AND DEGREE ARE HERE, AS SO OFTEN IN THE
LAW, DECISIVE. 

IT HAS BEEN SUGGESTED THAT SUCH A TAX IS VALID WHEN A SIMILAR TAX IS
PLACED ON LOCAL TRADE, AND A SPECIOUS APPEARANCE OF FAIRNESS IS SOUGHT
TO BE IMPARTED BY THE ARGUMENT THAT INTERSTATE COMMERCE SHOULD NOT BE
FAVORED AT THE EXPENSE OF LOCAL TRADE.  SO TO ARGUE IS TO DISREGARD THE
LIFE OF THE COMMERCE CLAUSE.  OF COURSE A STATE IS NOT REQUIRED TO GIVE
ACTIVE ADVANTAGE TO INTERSTATE TRADE.  BUT IT CANNOT AIM TO CONTROL
THAT TRADE EVEN THOUGH IT DESIRES TO CONTROL ITS OWN.  IT CANNOT
JUSTIFY WHAT AMOUNTS TO A LEVY UPON THE VERY PROCESS OF COMMERCE ACROSS
STATES LINES BY POINTING TO A SIMILAR HOBBLE ON ITS LOCAL TRADE.  IT IS
TRUE THAT THE EXISTENCE OF A TAX ON ITS LOCAL COMMERCE DETRACTS FROM
THE DETERRENT EFFECT OF A TAX ON INTERSTATE COMMERCE TO THE EXTENT THAT
IT REMOVES THE TEMPTATION TO SELL THE GOODS LOCALLY.  BUT THE FACT OF
SUCH A TAX, IN ANY EVENT, PUTS IMPEDIMENTS UPON THE CURRENTS OF
COMMERCE ACROSS THE STATE LINE, WHILE THE AIM OF THE COMMERCE CLAUSE
WAS PRECISELY TO PREVENT STATES FROM EXACTING TOLL FROM THOSE ENGAGED
IN NATIONAL COMMERCE.  THE COMMERCE CLAUSE DOES NOT INVOLVE AN EXERCISE
IN THE LOGIC OF EMPTY CATEGORIES.  IT OPERATES WITHIN THE FRAMEWORK OF
OUR FEDERAL SCHEME AND WITH DUE REGARD TO THE NATIONAL EXPERIENCE
REFLECTED BY THE DECISIONS OF THIS COURT, EVEN THOUGH THE TERMS IN
WHICH THESE DECISIONS HAVE BEEN CAST MAY HAVE VARIED.  LANGUAGE ALTERS,
AND THERE IS A FASHION IN JUDICIAL WRITING AS IN OTHER THINGS. 

THIS CASE, LIKE ADAMS MFG. CO. V. STOREN, SUPRA, INVOLVES A TAX
IMPOSED BY THE STATE OF THE SELLER ON THE PROCEEDS OF INTERSTATE
SALES.  TO EXTRACT A FAIR TITHE FROM INTERSTATE COMMERCE FOR THE LOCAL
PROTECTION AFFORDED TO IT, A SELLER STATE NEED NOT IMPOSE THE KIND OF
TAX WHICH INDIANA HERE LEVIED.  AS A PRACTICAL MATTER, IT CAN MAKE SUCH
COMMERCE PAY ITS WAY, AS THE PHRASE RUNS, APART FROM TAXING THE VERY
SALE.  THUS, IT CAN TAX LOCAL MANUFACTURE EVEN IF THE PRODUCTS ARE
DESTINED FOR OTHER STATES.  FOR SOME PURPOSES, MANUFACTURE AND THE
SHIPMENT OF ITS PRODUCTS BEYOND A STATE MAY BE LOOKED UPON AS AN
INTEGRAL TRANSACTION.  BUT WHEN ACCOMMODATION MUST BE MADE BETWEEN
STATE AND NATIONAL INTERESTS, MANUFACTURE WITHIN A STATE, THOUGH
DESTINED FOR SHIPMENT OUTSIDE, IS NOT A SEAMLESS WEB SO AS TO PREVENT A
STATE FROM GIVING THE MANUFACTURING PART DETACHED RELEVANCE FOR
PURPOSES OF LOCAL TAXATION.  AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S.
459; UTAH POWER & L. CO. V. PFOST, 286 U.S. 165.  IT CAN IMPOSE LICENSE
TAXES ON DOMESTIC AND FOREIGN CORPORATIONS WHO WOULD DO BUSINESS IN THE
STATE, CHENEY BROTHERS CO. V. MASSACHUSETTS, 246 U.S. 147; ST. LOUIS
S.W. RY. V. ARKANSAS, 235 U.S. 350, 364, THOUGH IT CANNOT, EVEN UNDER
THE GUISE OF SUCH EXCISES, "HAMPER" INTERSTATE COMMERCE.  WESTERN UNION
TEL. CO. V. KANSAS, 216 U.S. 1; PULLMAN CO. V. KANSAS, 216 U.S.
56(PARTICULARLY WHITE, J. CONCURRING AT P. 63); HENDERSON, THE POSITION
OF FOREIGN CORPORATIONS IN AMERICAN CONSTITUTIONAL LAW (1918) 118-23,
128-31.  IT CAN TAX THE PRIVILEGE OF RESIDENCE IN THE STATE AND MEASURE
THE PRIVILEGE BY NET INCOME, INCLUDING THAT DERIVED FROM INTERSTATE
COMMERCE.  U.S. GLUE CO. V. OAK CREEK, 247 U.S. 321; CF. ATLANTIC COAST
LINE V. DAUGHTON, 262 U.S. 413.  AND WHERE, AS IN THIS CASE, THE
COMMODITIES SUBSEQUENTLY SOLD INTERSTATE ARE SECURITIES, THEY CAN BE
REACHED BY A PROPERTY TAX BY THE STATE OF DOMICIL OF THE OWNER. 
VIRGINIA V. IMPERIAL SALES CO., 293 U.S. 15, 19; AND SEE CITIZENS
NATIONAL BANK V. DURR, 257 U.S. 99. 

THESE ILLUSTRATIVE INSTANCES SHOW THAT A SELLER STATE HAS VARIOUS
MEANS OF OBTAINING LEGITIMATE CONTRIBUTION TO THE COSTS OF ITS
GOVERNMENT, WITHOUT IMPOSING A DIRECT TAX ON INTERSTATE SALES.  WHILE
THESE PERMITTED TAXES MAY, IN AN ULTIMATE SENSE, COME OUT OF INTERSTATE
COMMERCE, THEY ARE NOT, AS WOULD BE A TAX ON GROSS RECEIPTS, A DIRECT
IMPOSITION ON THAT VERY FREEDOM OF COMMERCIAL FLOW WHICH FOR MORE THAN
A HUNDRED AND FIFTY YEARS HAS BEEN THE WARD OF THE COMMERCE CLAUSE. 

IT IS SUGGESTED, HOWEVER, THAT THE VALIDITY OF A GROSS SALES TAX
SHOULD DEPEND ON WHETHER ANOTHER STATE HAS ALSO SOUGHT TO IMPOSE ITS
BURDEN ON THE TRANSACTIONS.  IF ANOTHER STATE HAS TAXED THE SAME
INTERSTATE TRANSACTION, THE BURDENSOME CONSEQUENCES TO INTERSTATE TRADE
ARE UNDENIABLE.  BUT THAT, FOR THE TIME BEING, ONLY ONE STATE HAS TAXED
IS IRRELEVANT TO THE KIND OF FREEDOM OF TRADE WHICH THE COMMERCE CLAUSE
GENERATED.  THE IMMUNITIES IMPLICIT IN THE COMMERCE CLAUSE AND THE
POTENTIAL TAXING POWER OF A STATE CAN HARDLY BE MADE TO DEPEND, IN THE
WORLD OF PRACTICAL AFFAIRS, ON THE SHIFTING INCIDENCE OF THE VARYING
TAX LAWS OF THE VARIOUS STATES AT A PARTICULAR MOMENT.  COURTS ARE NOT
POSSESSED OF INSTRUMENTS OF DETERMINATION SO DELICATE AS TO ENABLE THEM
TO WEIGH THE VARIOUS FACTORS IN A COMPLICATED ECONOMIC SETTING WHICH,
AS TO AN ISOLATED APPLICATION OF A STATE TAX, MIGHT MITIGATE THE
OBVIOUS BURDEN GENERALLY CREATED BY A DIRECT TAX ON COMMERCE.  NOR IS
THERE ANY WARRANT IN THE CONSTITUTIONAL PRINCIPLES HERETOFORE APPLIED
BY THIS COURT TO SUPPORT THE NOTION THAT A STATE MAY BE ALLOWED ONE
SINGLETAX-WORTH OF DIRECT INTERFERENCE WITH THE FREE FLOW OF COMMERCE. 
AN EXACTION BY A STATE FROM INTERSTATE COMMERCE FALLS NOT BECAUSE OF A
PROVEN INCREASE IN THE COST OF THE PRODUCT.  WHAT MAKES THE TAX INVALID
IS THE FACT THAT THERE IS INTERFERENCE BY A STATE WITH THE FREEDOM OF
INTERSTATE COMMERCE.  SUCH A TAX BY THE SELLER STATE ALONE MUST BE
JUDGED BURDENSOME IN THE CONTEXT OF THE CIRCUMSTANCES IN WHICH THE TAX
TAKES EFFECT.  TRADE BEING A SENSITIVE PLANT, A DIRECT TAX UPON IT TO
SOME EXTENT AT LEAST DETERS TRADE EVEN IF ITS EFFECT IS NOT PRECISELY
CALCULABLE.  MANY STATES, FOR INSTANCE, IMPOSE TAXES ON THE CONSUMPTION
OF GOODS, AND SUCH TAXES HAVE BEEN SUSTAINED REGARDLESS OF THE EXTRA
STATE ORIGIN OF THE GOODS, OR WHETHER A TAX ON THEIR SALE HAD BEEN
IMPOSED BY THE SELLER STATE.  SUCH POTENTIAL TAXATION BY CONSUMER
STATES IS BUT ONE FACTOR POINTING TO THE DETERRENT EFFECT ON COMMERCE
BY A SUPERIMPOSED GROSS RECEIPTS TAX.    IT HAS BEEN URGED THAT THE
FORCE OF THE DECISION IN THE ADAMS CASE HAS BEEN SAPPED BY MCGOLDRICK
V. BERWIND-WHITE CO., 309 U.S. 33.  THE DECISION IN MCGOLDRICK V.
BERWIND-WHITE WAS FOUND NOT TO IMPINGE UPON "THE RATIONALE OF THE ADAMS
MANUFACTURING CO. CASE," AND THE TAX WAS SUSTAINED BECAUSE IT WAS
"CONDITIONED UPON A LOCAL ACTIVITY, DELIVERY OF GOODS WITHIN THE STATE
UPON THEIR PURCHASE FOR CONSUMPTION."  309 U.S. AT 58.  COMPARE MCLEOD
V. DILWORTH CO., 322 U.S. 327.  TAXES WHICH HAVE THE SAME EFFECT AS
CONSUMPTION TAXES ARE PROPERLY DIFFERENTIATED FROM A DIRECT IMPOSITION
ON INTERSTATE COMMERCE, SUCH AS WAS BEFORE THE COURT IN THE ADAMS CASE
AND IS NOW BEFORE US.  THE TAX ON THE SALE ITSELF CANNOT BE
DIFFERENTIATED FROM A DIRECT UNAPPORTIONED TAX ON GROSS RECEIPTS WHICH
HAS BEEN DEFINITELY HELD BEYOND THE STATE TAXING POWER EVER SINCE FARGO
V. MICHIGAN, 121 U.S. 230, AND PHILADELPHIA STEAMSHIP CO. V.
PENNSYLVANIA, 122 U.S. 326.  SEE ALSO, E.G., GALVESTON, H. & S.A.R. CO.
V. TEXAS, 210 U.S. 217; KANSAS CITY, FT. S. & M.R. CO. V. KANSAS, 240
U.S. 227, 231; PUGET SOUND CO. V. TAX COMMISSION, 302 U.S. 90, 94; AND
COMPARE WALLACE V. HINES, 253 U.S. 66.  FOR NOT EVEN AN "INTERNAL
REGULATION" BY A STATE WILL BE ALLOWED IF IT DIRECTLY AFFECTS
INTERSTATE COMMERCE.  ROBBINS V. SHELBY TAXING DISTRICT, 120 U.S. 489,
494. 

NOR IS AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459, OR HARVESTER CO.
V. DEPT. OF TREASURY, 322 U.S. 340, ANY JUSTIFICATION FOR THE PRESENT
TAX.  THE AMERICAN MFG. CO. CASE INVOLVED AN IMPOSITION BY ST. LOUIS OF
A LICENSE FEE UPON THE CONDUCT OF MANUFACTURING WITHIN THAT CITY.  IT
HAS LONG BEEN SETTLED THAT A STATE CAN LEVY SUCH AN OCCUPATION TAX
GRADUATED ACCORDING TO THE VOLUME OF MANUFACTURE.  IN THAT CASE, TO
LIGHTEN THE MANUFACTURER'S BURDEN, THE IMPOSITION OF THE OCCUPATION TAX
WAS MADE CONTINGENT UPON THE ACTUAL SALE OF THE GOODS LOCALLY
MANUFACTURED.  SALES IN ST. LOUIS OF GOODS MADE ELSEWHERE WERE NOT
TAKEN INTO ACCOUNT IN MEASURING THE LICENSE FEE.  THAT TAX, THEN,
UNLIKE THIS, WAS NOT IN FACT A TAX ON GROSS RECEIPTS.  CF. CORNELL V.
COYNE, 192 U.S. 418.  AND, IF WORDS ARE TO CORRESPOND TO THINGS, THE
TAX NOW HERE IS NOT "A TAX ON THE TRANSFER OF PROPERTY" WITHIN THE
STATE, WHICH WAS THE BASIS FOR SUSTAINING THE TAX IN HARVESTER CO. V.
DEPT. OF TREASURY, SUPRA, AT 348. 

THERE REMAINS ONLY THE CLAIM THAT AN INTERSTATE SALE OF INTANGIBLES
DIFFERS FROM AN INTERSTATE SALE OF TANGIBLES IN RESPECTS MATERIAL TO
THE ISSUE IN THIS CASE.  IT WAS BY THIS DISTINCTION THAT THE SUPREME
COURT OF INDIANA SOUGHT TO ESCAPE THE AUTHORITY OF ADAMS MFG. CO. V.
STOREN, SUPRA. LATIN TAGS LIKE MOBILIA SEQUUNTUR PERSONAM OFTEN DO
SERVICE FOR LEGAL ANALYSIS, BUT THEY OUGHT NOT TO CONFOUND
CONSTITUTIONAL ISSUES.  WHAT MR. JUSTICE HOLMES SAID ABOUT THAT PHRASE
IS RELEVANT HERE.  "IT IS A FICTION, THE HISTORICAL ORIGIN OF WHICH IS
FAMILIAR TO SCHOLARS, AND IT IS THIS FICTION THAT GIVES WHATEVER
MEANING IT HAS TO THE SAYING MOBILIA SEQUUNTUR PERSONAM.  BUT BEING A
FICTION IT IS NOT ALLOWED TO OBSCURE THE FACTS, WHEN THE FACTS BECOME
IMPORTANT."  BLACKSTONE V. MILLER, 188 U.S. 189, 204.  OF COURSE THIS
IS AN INTERSTATE SALE.  AND CONSTITUTIONALLY IT IS COMMERCE NO LESS AND
NO DIFFERENT BECAUSE THE SUBJECT WAS PIECES OF PAPER WORTH $65,214.20,
RATHER THAN MACHINES.  REVERSED. 

FN1  COMPARE REPORT OF THE (AUSTRALIAN) ROYAL COMMISSION ON THE
CONSTITUTION (1929) PP. 260, 322-24, AND REPORT OF THE (CANADIAN) ROYAL
COMMISSION ON DOMINION-PROVINCIAL RELATIONS (1940), BK. II, PP. 62-67,
111-21, 150-62, 216-19.  SEE AUSTRALIA, ACT NO. 1, 1946, REPEALING ACT
NO. 20, 1942, AND ACT NO. 43, 1942; SOUTH AUSTRALIA V. COMMONWEALTH, 65
C.L.R. 373; ALSO PROPOSALS OF THE GOVERNMENT OF CANADA, DOMINION
PROVINCIAL CONFERENCE ON RECONSTRUCTION, PP. 47-49; PROCEEDINGS OF THE
DOMINION-PROVINCIAL CONFERENCE (1945) PASSIM, PARTICULARLY THE
STATEMENT OF PRIME MINISTER MACKENZIE KING, P. 388, AND THE DISCUSSION
FOLLOWING.  AND SEE MAXWELL, THE FISCAL IMPACT OF FEDERALISM IN THE
UNITED STATES (1946) CC. II, XIII, XIV. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

THIS IS A CASE IN WHICH THE GROUNDING OF THE DECISION IS MORE
IMPORTANT THAN THE DECISION ITSELF.  WHETHER THE COURT NOW INTENDS
SIMPLY TO QUALIFY OR TO REPUDIATE ENTIRELY, EXCEPT IN RESULT, ADAMS
MFG. CO. V. STOREN, 304 U.S. 307, I AM UNABLE TO DETERMINE FROM ITS
OPINION.  BUT THAT ONE OR THE OTHER CONSEQUENCE IS INTENDED SEEMS
OBVIOUS FROM ITS REFUSAL TO REST THE PRESENT DECISION SQUARELY ON THAT
CASE, TOGETHER WITH THE WHOLLY DIFFERENT FOUNDATION ON WHICH IT NOW
RELIES.  IN EITHER EVENT, THE MATTER IS IMPORTANT AND CALLS FOR
DISCUSSION. 

                                  I. 

THE ADAMS CASE HELD THE INDIANA TAX NOW IN ISSUE TO BE INVALID WHEN
APPLIED, WITHOUT APPORTIONMENT, TO GROSS RECEIPTS DERIVED FROM
INTERSTATE SALES OF GOODS MADE BY INDIANA MANUFACTURERS WHO SOLD AND
SHIPPED THEM TO PURCHASERS IN OTHER STATES.  "THE VICE OF THE STATUTE"
AS THUS APPLIED, IT WAS HELD, WAS "THAT THE TAX INCLUDES IN ITS
MEASURE, WITHOUT APPORTIONMENT, RECEIPTS DERIVED FROM ACTIVITIES IN
INTERSTATE COMMERCE; AND THAT THE EXACTION IS OF SUCH A CHARACTER THAT
IF LAWFUL IT MAY IN SUBSTANCE BE LAID TO THE FULLEST EXTENT BY STATES
IN WHICH THE GOODS ARE SOLD AS WELL AS THOSE IN WHICH THEY ARE
MANUFACTURED.  INTERSTATE COMMERCE WOULD THUS BE SUBJECTED TO THE RISK
OF A DOUBLE TAX BURDEN TO WHICH INTRASTATE COMMERCE IS NOT EXPOSED, AND
WHICH THE COMMERCE CLAUSE FORBIDS."  304 U.S. 307, 311.  FN1 

TODAY'S OPINION REFUSES TO REST SQUARELY ON THE ADAMS CASE, ALTHOUGH
THAT CASE WOULD BE COMPLETELY CONTROLLING IF NO CHANGE IN THE LAW WERE
INTENDED.  NO BASIS FOR DISTINGUISHING THE CASES ON THE FACTS OR THE
ULTIMATE QUESTIONS IS FOUND OR STATED.  THE COURT TAKES THEM AS
IDENTICAL.  FN2  YET IT PLACES NO EMPHASIS UPON APPORTIONMENT, THE
ABSENCE OF WHICH THE ADAMS OPINION HELD CRUCIAL.  THE COURT ALSO PUTS
TO ONE SIDE AS IRRELEVANT THE FACTOR THERE MOST STRESSED, NAMELY, THE
DANGER OF MULTIPLE TAXATION, THAT IS, OF SIMILAR TAXATION BY OTHER
STATES, IF THE INDIANA TAX SHOULD BE UPHELD IN THE ATTEMPTED
APPLICATION. 

THOSE MATTERS WERE THE VERY ESSENCE OF THE ADAMS DECISION.  THEY WERE
IN ITS WORDS "THE VICE" OF THE STATUTE AS APPLIED.  THE ADAMS OPINION
GIVES NO REASON FOR BELIEVING THAT THE APPLICATION OF THE TAX WOULD NOT
HAVE BEEN SUSTAINED IF EITHER OF THE TWO ELEMENTS VITIATING IT HAD BEEN
ABSENT.  ON THE CONTRARY, THE FAIR, INDEED THE NECESSARY, INFERENCE
FROM THE LANGUAGE AND REASONS GIVEN IS THAT THE TAX WOULD NOT HAVE BEEN
VOIDED IF THERE HAD BEEN NO DANGER OF MULTIPLE STATE TAXATION OR IF THE
TAX HAD BEEN APPORTIONED SO AS TO ELIMINATE THAT RISK.  MOREOVER THOSE
GROUNDINGS WERE STRICTLY IN ACCORD WITH LONG LINES OF PREVIOUS
DECISIONS RENDERED HERE,  FN3  WERE INTENDED TO CONFORM TO THEM AND TO
PRESERVE THEM UNIMPAIRED. 

YET NOW THEY ARE PUT TO ONE SIDE, EITHER AS IRRELEVANT OR AS NOT
CONTROLLING AND THEREFORE PRESUMABLY AS INSUFFICIENT N4, IN FAVOR OF
ANOTHER RATIONALIZATION WHICH IGNORES THEM COMPLETELY.  SHORTLY, THIS
IS, IN REITERATED FORMS, THAT THE TAX AS APPLIED IS LAID "DIRECTLY ON"
INTERSTATE COMMERCE, IS A LEVY "ON THE VERY SALE" OR "THE VERY PROCESS"
OF SUCH COMMERCE, IS THEREFORE AND SOLELY THEREBY A "BURDEN" ON IT, AND
CONSEQUENTLY IS AN EXACTION THE COMMERCE CLAUSE FORBIDS.  WHAT OUTLAWS
IT IS NEITHER COMPARATIVE DISADVANTAGE WITH LOCAL TRADE NOR ANY ACTUAL
OR PROBABLE CLOGGING OR IMPEDING EFFECT IN FACT.  FN5  IT IS SIMPLY THE
"DIRECT" BEARING AND "INCIDENCE" OF THE TAX ON INTERSTATE COMMERCE AND
THIS ALONE.  STRIPPED OF ANY DISCRIMINATORY ELEMENT AND OF ANY ACTUAL
OR PROBABLE TENDENCY TO BLOCK OR IMPEDE THE COMMERCE IN FACT, THIS
"DIRECT INCIDENCE" IS ITSELF ENOUGH WITHOUT MORE TO INVALIDATE THE TAX,
ALTHOUGH IT IS ONE OF GENERAL APPLICATION SINGLING OUT THE COMMERCE
NEITHER FOR SEPARATE NOR FOR DISTINCT OR INVIDIOUS TREATMENT. 

IF THIS EVER WAS THE LAW, IT HAS NOT BEEN SUCH FOR MANY YEARS.  IN A
SENSE IT IS A REVERSION TO IDEAS ONCE PREVALENT, BUT LONG SINCE
REPUDIATED,  FN6  ABOUT THE "EXCLUSIVENESS" OF CONGRESS' POWER OVER
INTERSTATE COMMERCE WHICH, IF NOW RESURRECTED FOR GENERAL APPLICATION,
WILL STRIKE DOWN STATE TAXES IN A GREAT VARIETY OF FORMS SUSTAINED
CONSISTENTLY OF LATE.  NOT SINCE COOLEY V. BOARD OF WARDENS, 12 HOW. 
299, HAS THE NOTION PREVAILED THAT THE MERE EXISTENCE OF POWER IN
CONGRESS TO REGULATE COMMERCE EXCLUDES THE STATES FROM EXACTING REVENUE
FROM IT THROUGH EXERCISE OF THEIR POWERS OF TAXATION.  FN7  YET IF A
GENERAL TAX, APPLYING TO ALL COMMERCE ALIKE, IS TO BE OUTLAWED,
REGARDLESS OF DISCRIMINATORY CONSEQUENCES OR ACTUAL OR PROBABLE
IMPEDING EFFECT IN FACT, SIMPLY BECAUSE IT BEARS "DIRECTLY" ON THE
COMMERCE AND FOR NO OTHER REASON, NOT ONLY WILL THERE BE A RESURRECTION
OF MARSHALL'S "EXCLUSIVE" IDEA, NEVER PREVAILING AFTER THE COOLEY
CASE.  THE EFFECT WILL BE TO KNOCK DOWN MANY TYPES OF STATE TAXES HELD
VALID SINCE THAT LANDMARK DECISION.  FN8 

THAT CONSEQUENCE MUST FOLLOW IF THE PRESENTLY ASSERTED BASIS FOR
DECISION IS TO BE TAKEN AS A PRINCIPLE FIT FOR GENERAL APPLICATION AND
INTENDED TO BE SO USED.  WE CANNOT ASSUME THAT THE COURT INTENDS IT TO
BE USED OTHERWISE, FOR THAT WOULD BE TO MAKE OF IT AN ARBITRARY FORMULA
APPLIED TO DISPOSE OF THE PRESENT CASE ALONE AND HAVING NO VALIDITY FOR
ANY OTHER SITUATION.  BUT THE GROUND RELIED UPON IS BROAD ENOUGH TO
INCLUDE MANY OTHER TYPES OF SITUATION AND OF TAX, AND CANNOT BE
RESTRICTED LOGICALLY OR IN REASON TO THESE NARROW FACTS.  IF
DISCRIMINATION AND REAL RISK, IN THE SENSE OF PRACTICAL EFFECT TO CLOG
OR IMPEDE TRADE, ARE IRRELEVANT TO THE VALIDITY OF THIS TYPE OF TAX,
THEY ARE EQUALLY IRRELEVANT TO MANY OTHERS, UNLESS SHEER FICTION AND
ARBITRARY DISTINCTION BASED ON INCONSEQUENTIAL FACTORS ARE TO BE
CONTROLLING.  IF THE GROUNDING WHICH DISREGARDS THEM IS ADEQUATE FOR
DISPOSING OF THIS CASE, IT IS ADEQUATE ALSO FOR DISPOSING OF MANY
OTHERS INVOLVING IT IN WHICH THE COURT HAS BEEN AT GREAT PAINS TO REST
ON OTHER FACTORS, UNNECESSARILY IT NOW WOULD SEEM. 

IT WILL BE APPROPRIATE, BEFORE TURNING TO FURTHER CONSIDERATION OF
THE MORE PERTINENT DECISIONS, TO NOTE THE ONLY BASIS UPON WHICH THE
COURT GROUNDS ITS RULING THAT "DIRECT" STATE TAXES ON "THE VERY
PROCESS" OF INTERSTATE COMMERCE ARE VOID.  THIS IS BECAUSE, IN THE
WORDS OF THE OPINION, THE COMMERCE CLAUSE "BY ITS OWN FORCE CREATED AN
AREA OF TRADE FREE FROM INTERFERENCE BY THE STATES."  ALTHOUGH THIS IS
STATED AS GROUNDING FOR THE LONG-ESTABLISHED CONCLUSION THAT EVEN
WITHOUT IMPLEMENTING LEGISLATION BY CONGRESS THE CLAUSE IS A LIMITATION
UPON STATE POWER, IT ALSO IS QUITE OBVIOUSLY THE FOUNDATION OF THE
FURTHER CONCLUSION THAT "DIRECT" TAXES LAID BY THE STATES WITHIN THAT
AREA ARE OUTLAWED REGARDLESS OF ANY OTHER FACTOR THAN THEIR DIRECT
INCIDENCE UPON IT.

II. 

I AGREE THAT THE COMMERCE CLAUSE "OF ITS OWN FORCE" PLACES
RESTRICTIONS UPON STATE POWER TO TAX, AS WELL AS TO REGULATE,
INTERSTATE COMMERCE.  THIS HAS BEEN HELD THROUGH VARIOUS LINES OF
DECISION EXTENDING BACK TO GIBBONS V. OGDEN, 9 WHEAT.  1, SOME OF THEM
UNBROKEN.  FN9  I ALSO AGREE THAT THIS CONSTRUCTION IS CONSONANT WITH
THE GREAT PURPOSE OF THE COMMERCE CLAUSE TO MAINTAIN OUR DISTINCTIVELY
NATIONAL TRADE FREE FROM STATE RESTRICTIONS AND BARRIERS AGAINST IT
WHICH THE CLAUSE WAS ADOPTED TO PREVENT.  BUT, AT ANY RATE SINCE COOLEY
V. BOARD OF WARDENS, SUPRA, THIS HAS NOT MEANT THAT THE CLAUSE WAS
INTENDED TO OR COULD SECURE "BY ITS OWN FORCE" THAT VAST AREA OF
COMMERCIAL ACTIVITY WHOLLY FREE FROM "INTERFERENCE," THAT IS, FROM
TAXATION AND REGULATION, BY THE STATES.  FN10  NOR FOR MANY YEARS HAS
IT MEANT THAT THE FIELD OF INTERSTATE COMMERCE IS TO BE FREE FROM SUCH
"INTERFERENCE," SIMPLY BECAUSE IT IS "DIRECT" OR HAS IMMEDIATE
INCIDENCE UPON IT.  FN11 TRUE, LANGUAGE FREQUENTLY APPEARS IN THE
CASES, ESPECIALLY THE EARLIER ONES, TO THE EFFECT THAT "DIRECT"
TAXATION AND REGULATION BY THE STATES ARE FORBIDDEN.  BUT APART FROM
ITS INCONSISTENCY WITH BOTH LANGUAGE AND RESULTS IN OTHER CASES,  FN12
IN MOST OF THOSE WHERE IT HAS APPEARED THERE WERE OTHER INVALIDATING
FACTORS, SUCH AS SINGLING OUT THE COMMERCE FOR SPECIAL TREATMENT, OTHER
TYPES OF DISCRIMINATION, OR FAILURE TO APPORTION WHERE MULTIPLE STATE
TAXATION COULD RESULT IF THE TAX WERE SUSTAINED.  FN13 

THE FACT IS THAT "DIRECT INCIDENCE" OF A STATE TAX OR REGULATION,
APART FROM THE PRESENCE OF SUCH A FACTOR, HAS LONG SINCE BEEN DISCARDED
AS BEING IN ITSELF SUFFICIENT TO OUTLAW STATE LEGISLATION.  "LOCAL"
REGULATIONS, UNDER THE COOLEY FORMULA, BEAR DIRECTLY ON THE COMMERCE
ITSELF.  FN14  BUT THEY ARE NOT OUTLAWED FOR THAT REASON.  CALLING THEM
"INCIDENTAL," WHERE THIS IS DONE, DOES NOT MAKE THEM "INDIRECT," EXCEPT
IN JUDICIAL PERSPECTIVE.  POLICE REGULATIONS BEAR NO MORE INDIRECTLY OR
REMOTELY UPON THE INTERSTATE COMMERCE WHICH MUST OBSERVE THEM THAN UPON
THE LOCAL COMMERCE FALLING EQUALLY WITHIN THEIR INCIDENCE. 

AGAIN, AN APPORTIONED TAX ON INTERSTATE COMMERCE IS A "DIRECT" TAX
BEARING IMMEDIATELY UPON IT IN INCIDENCE.  BUT SUCH A TAX IS NOT FOR
THAT REASON INVALID.  DECISIONS HAVE SUSTAINED SUCH TAXES REPEATEDLY,
REGARDLESS OF THEIR DIRECT BEARING, PROVIDED THE APPORTIONMENT WERE
FAIRLY MADE AND NO OTHER VITIATING ELEMENT WERE PRESENT, SUCH AS THOSE
ABOVE MENTIONED.  FN15  IT WAS THIS FACT, WITHOUT QUESTION, WHICH THE
COURT HAD IN MIND IN THE ADAMS CASE, WHEN IT CAREFULLY SAVED FROM ITS
BAN ANY QUESTION CONCERNING SUCH A TAX AS INDIANA'S IF PROPERLY
APPORTIONED IN A SITUATION LIKE THE ONES PRESENTED THERE AND NOW.  FN16
                                III. 

THE LANGUAGE PURPORTING TO OUTLAW "DIRECT" TAXES BECAUSE THEY ARE
DIRECT HAS APPEARED MORE FREQUENTLY PERHAPS IN RELATION TO GROSS
RECEIPTS TAXES THAN ANY OTHER, INCLUDING BOTH "DIRECT" TAXES,
APPORTIONED AND UNAPPORTIONED, AND OTHERS CONSIDERED "INDIRECT" BECAUSE
PURPORTING TO BE LAID NOT "ON THE COMMERCE ITSELF" BUT UPON SOME "LOCAL
INCIDENT."  WE HAVE RECENTLY HELD THAT A TAX HAVING EFFECTS FORBIDDEN
BY THE COMMERCE CLAUSE WILL NOT BE SAVED MERELY BECAUSE IT IS CAST IN
TERMS OF BEARING UPON SOME "LOCAL INCIDENT."  FN17  AS WE THEN SAID,
ALL INTERSTATE COMMERCE TAKES PLACE WITHIN THE STATES AND THE
CONSEQUENCES FORBIDDEN BY THE COMMERCE CLAUSE CANNOT BE ACHIEVED
LEGALLY SIMPLY BY THE DEVICE OF HOOKING THE TAX OR OTHER FORBIDDEN
REGULATION TO SOME SELECTED "LOCAL INCIDENT."  THAT SUCH A FACTOR MAY
BE CHOSEN FOR BEARING THE "DIRECT" INCIDENCE OF THE TAX MAY BE A
CONSIDERATION TO BE TAKEN INTO ACCOUNT IN DETERMINING ITS VALIDITY. 
BUT IT CANNOT VALIDATE A TAX OR REGULATION WHICH PRODUCES THE FORBIDDEN
CONSEQUENCES, ANY MORE THAN A "DIRECT TAX" WHICH DOES NOT PRODUCE THEM
CAN BE OUTLAWED BECAUSE IT IS DIRECT.  NOT "DIRECTNESS" OR "IMMEDIACY"
OF INCIDENCE PER SE, WHETHER "UPON THE COMMERCE ITSELF" OR UPON A
"LOCAL INCIDENT," IS THE OUTLAWING FACTOR, BUT WHETHER THE TAX,
REGARDLESS OF THE SPECIAL POINT OF INCIDENCE, HAS THE CONSEQUENCES FOR
INTERSTATE TRADE INTENDED TO BE OUTLAWED BY THE COMMERCE CLAUSE. 

THE DIFFICULTY OF ANY OTHER RULE OR APPROACH IS DISCLOSED MOST
CLEARLY PERHAPS BY CONTRASTING THE DECISION IN AMERICAN MFG. CO. V. ST.
LOUIS, 250 U.S. 459, WITH THE ADAMS DECISION AND THIS ONE, IN BOTH OF
WHICH EFFORTS ARE MADE, UNSUCCESSFULLY IN MY OPINION, TO DISTINGUISH
THE AMERICAN CASE.  THERE THE TAX WAS LAID UPON THE MANUFACTURE,
LOCALLY DONE, OF GOODS SOLD LOCALLY AND OUT OF STATE.  BUT THE TAX WAS
"MEASURED BY" THE GROSS RECEIPTS FROM SALES OF THE GOODS MANUFACTURED,
INCLUDING THOSE SOLD INTERSTATE.  FN18 

A TAX UPON A LOCAL PRIVILEGE MEASURED BY THE VOLUME OF GROSS RECEIPTS
FROM BOTH LOCAL AND INTERSTATE TRADE  FN19  WOULD SEEM TO HAVE, IN
PRACTICAL EFFECT, THE SAME CONSEQUENCES FOR BLOCKING OR IMPEDING THE
COMMERCE AS ONE LAID "DIRECTLY" UPON IT, IN ANY SITUATION WHERE NO
MULTIPLE LEVY IS MADE, LIKEWISE IN ANY WHERE MORE THAN ONE STATE MIGHT
FIND SUCH A LOCAL PRIVILEGE FOR PEGGING THE TAX.  FN20  AND A TAX UPON
GROSS RECEIPTS "IN LIEU OF" PROPERTY OR OTHER TAXES FN21  CANNOT BE
SAID EITHER TO BE LESS "DIRECT" IN ITS INCIDENCE UPON THE COMMERCE THAN
THE APPLICATION OF THE INDIANA TAX NOW IN ISSUE OR TO AFFORD PROTECTION
AGAINST MULTIPLE LEVIES THE RISK OF WHICH WAS HELD IN ADAMS MFG. CO. V.
STOREN TO MAKE THE INDIANA TAX INHERENTLY VICIOUS IN THAT APPLICATION. 
FN22 

UNLESS WE ARE TO RETURN TO THE FORMALISM OF ANOTHER DAY, NEITHER THE
"DIRECTNESS" OF THE INCIDENCE OF A TAX "UPON THE COMMERCE ITSELF" NOR
THE FACT THAT ITS INCIDENCE IS MANIPULATED TO REST UPON SOME "LOCAL
INCIDENT" OF THE INTERSTATE TRANSACTION CAN BE USED AS A CRITERION OR,
MANY TIMES, AS A CONSIDERATION OF FIRST IMPORTANCE IN DETERMINING THE
VALIDITY OF A STATE TAX BEARING UPON OR AFFECTING INTERSTATE COMMERCE. 
NOT THE WORDS "DIRECT" AND "INDIRECT" OR "LOCAL INCIDENT" CAN FULFILL
THE FUNCTION OF JUDGMENT IN DECIDING WHETHER THE TAX BRINGS THE
FORBIDDEN RESULTS.  SEE THE DISSENTING OPINION OF MR. JUSTICE STONE IN
DI SANTO V. PENNSYLVANIA, 273 U.S. 34, 44, QUOTED IN NOTE 11.  THAT CAN
BE DONE ONLY BY TAKING ACCOUNT OF THE SPECIFIC EFFECTS OF STATE
LEGISLATION THE CLAUSE WAS INTENDED TO OUTLAW, AND OF THE CONSEQUENCES
ACTUAL OR PROBABLE OF THE LEGISLATION CALLED IN QUESTION TO CREATE
THEM. 

  IV. 

JUDGMENTS OF THIS CHARACTER AND MAGNITUDE CANNOT BE MADE BY LABELS OR
FORMULAE.  THEY REQUIRE MUCH MORE THAN POINTING TO A WORD.  IT IS FOR
THIS REASON THAT INCREASINGLY WITH THE YEARS EMPHASIS HAS BEEN PLACED
UPON PRACTICAL CONSEQUENCES AND EFFECTS, EITHER ACTUAL OR THREATENED,
OF QUESTIONED LEGISLATION TO BLOCK OR IMPEDE INTERSTATE COMMERCE OR
PLACE IT AT PRACTICAL DISADVANTAGE WITH THE LOCAL TRADE.  FN23
FORMULAE AND ADJECTIVES HAVE BEEN RETAINED AT TIMES IN INTERMIXTURE
WITH THE EFFECTIVE PRACTICAL CONSIDERATIONS.  BUT PROPORTIONATELY THE
STRESS UPON THEM HAS BEEN GREATLY REDUCED, UNTIL THE PRESENT DECISION;
AND THE TREND OF RECENT DECISIONS TO SUSTAIN STATE TAXES FORMERLY
REGARDED AS INVALID HAS BEEN DUE IN LARGE PART TO THIS FACT. 

THE COMMERCE CLAUSE WAS NOT DESIGNED OR INTENDED TO OUTLAW ALL STATE
TAXES BEARING "DIRECTLY" ON INTERSTATE COMMERCE.  ITS DESIGN WAS ONLY
TO EXCLUDE THOSE HAVING THE EFFECTS TO BLOCK OR IMPEDE IT WHICH CALLED
IT AND THE CONSTITUTION ITSELF INTO BEING.  NOT ALL STATE TAXES, NOR
INDEED ALL DIRECT STATE TAXES, CAN BE SAID TO PRODUCE THOSE EFFECTS. 
ON THE OTHER HAND, MANY "INDIRECT" FORMS OF STATE TAXATION, THAT IS,
"INDIRECT" AS RELATED TO "INCIDENCE," DO IN FACT PRODUCE SUCH
CONSEQUENCES AND FOR THAT REASON ARE INVALID. 

IT IS FOR THIS REASON THAT SELECTION OF A "LOCAL INCIDENT" FOR
HANGING THE TAX WILL NOT SAVE IT, IF ALSO THE EXACTION DOES NOT IN FACT
AVOID THE OUTLAWED INTERFERENCES WITH THE FREE FLOW OF COMMERCE. 
SELECTION OF A LOCAL INCIDENT FOR PEGGING THE TAX HAS TWO FUNCTIONS
RELEVANT TO DETERMINATION OF ITS VALIDITY.  ONE IS TO MAKE PLAIN THAT
THE STATE HAS SUFFICIENT FACTUAL CONNECTIONS WITH THE TRANSACTION TO
COMPLY WITH DUE PROCESS REQUIREMENTS.  FN24  THE OTHER IS TO ACT AS A
SAFEGUARD, TO SOME EXTENT, AGAINST REPETITION OF THE SAME OR A SIMILAR
TAX BY ANOTHER STATE.  FN25  THESE MATTERS ARE OFTEN INTERRELATED, CF.
WESTERN UNION TELEGRAPH CO. V. KANSAS, 216 U.S. 1, THOUGH IN OTHER
SITUATIONS THEY MAY BE ENTIRELY SEPARATE.  THE IMPORTANT DIFFERENCE IS
BETWEEN SITUATIONS WHERE IT IS ESSENTIAL TO SHOW MINIMAL FACTUAL
CONNECTIONS OF THE TRANSACTION WITH THE TAXING STATE IN ORDER TO
SUSTAIN THE LEVY AS AGAINST DUE PROCESS OBJECTIONS FOR "WANT OF
JURISDICTION TO TAX"; FN26  AND OTHER SITUATIONS WHERE, ALTHOUGH SUCH
CONNECTIONS CLEARLY ARE PRESENT, THE NECESSITY IS FOR SHOWING THAT THE
TAX, IF SUSTAINED, WILL CREATE A MULTIPLE TAX LOAD OR OTHER
CONSEQUENCES HAVING THE FORBIDDEN EFFECTS. 

THIS CASE IS NOT ONE OF THE FORMER SORT.  THE TRANSACTIONS WERE AS
CLOSELY CONNECTED IN FACT WITH INDIANA AS WITH ANY OTHER STATE.  FN27
BUT THE CASE IS ONE OF THE LATTER TYPE, THAT IS, WHERE, DESPITE THOSE
CONNECTIONS, THERE WERE EQUALLY CLOSE AND IMPORTANT ONES IN ANOTHER
STATE, NEW YORK; AND THEREFORE, AS THE ADAMS CASE DECLARED, THE RISK OF
MULTIPLE STATE TAXATION WOULD BE INCURRED, UNLESS ONE OR THE OTHER OR
BOTH STATES WERE FORBIDDEN TO TAX THE TRANSACTION AS SUCH, OR WERE
REQUIRED TO APPORTION THE TAX.  NOT THE "DIRECTNESS" OF THE TAX IN ITS
BEARING UPON THE COMMERCE, BUT THIS DANGER IS THE CRUCIAL ISSUE IN THIS
CASE, AS IT WAS IN THE ADAMS CASE.  IN OTHER WORDS, BUT FOR THE
POSSIBILITY THAT MORE STATES THAN ONE WOULD LEVY THE SAME OR A SIMILAR
TAX, SUCH AN APPLICATION AS WAS MADE OF INDIANA'S TAX IN THE ADAMS CASE
AND HERE WOULD BE NO MORE BURDENSOME OR OBJECTIONABLE THAN OTHER
APPLICATIONS OF THE SAME TAX THIS COURT HAS SUSTAINED OR OF OTHER TAXES
LIKEWISE HELD VALID.  FN28

  V. 

THIS COURT IN RECENT YEARS HAS GONE FAR IN SUSTAINING STATE TAXES
LAID UPON LOCAL INCIDENTS OF INTERSTATE TRANSACTIONS BY BOTH THE STATE
OF ORIGIN AND THE STATE OF THE MARKET N29.  PERHAPS IT MAY BE SAID, IN
VIEW OF SUCH DECISIONS, THAT IT HAS MORE CLEARLY SUSTAINED SUCH TAXES
AT THE MARKETING END THAN BY THE STATE OF ORIGIN,  FN30  ALTHOUGH THIS
MAY BE MATTER FOR DEBATE.  IN ANY EVENT, THE FACTUAL CONNECTIONS OF THE
TAXING STATE WITH THE INTERSTATE TRANSACTION IN THE CASES WHERE THE TAX
HAS BEEN SUSTAINED HARDLY CAN BE REGARDED AS GREATER OR MORE IMPORTANT
THAN THOSE OF INDIANA WITH THE TRANSACTIONS INVOLVED IN THE ADAMS CASE
AND HERE.  NOR COULD IT BE SHOWN IN FACT THAT IN SOME OF THEM, AT ANY
RATE, THE DANGER OF MULTIPLE STATE TAXATION WAS APPRECIABLY LESS, IF IT
BE ASSUMED THAT THE FORWARDING STATE HAS THE SAME POWER TO TAX THE
TRANSACTION, BY PEGGING THE TAX UPON A LOCAL INCIDENT, AS HAS BEEN
RECOGNIZED FOR THE STATE OF MARKET. 

SUCH TAXES, WHETHER IN ONE STATE OR THE OTHER, MAY IN FACT BLOCK OR
IMPEDE INTERSTATE COMMERCE AS MUCH AS, OR MORE THAN, ONE PLACED
DIRECTLY UPON THE COMMERCE ITSELF.  THEY HAVE BEEN SUSTAINED,
NEVERTHELESS, NOT SIMPLY BECAUSE OF THEIR BEARING UPON A LOCAL
INCIDENT, BUT BECAUSE IN THE CIRCUMSTANCES OF THEIR APPLICATION THEY
WERE CONSIDERED TO HAVE NEITHER DISCRIMINATORY EFFECTS UPON INTERSTATE
TRADE AS COMPARED WITH LOCAL COMMERCE NOR TO IMPOSE UPON IT THE
BLOCKING OR IMPEDING EFFECTS WHICH THE COMMERCE CLAUSE WAS TAKEN TO
FORBID.  FN31 

THIS IN MY JUDGMENT IS THE APPROPRIATE CRITERION TO BE APPLIED,
RATHER THAN ANY MERE QUESTION OF "DIRECT" OR "INDIRECT" INCIDENCE UPON
A "LOCAL INCIDENT."  THE ABSENCE OF ANY SUCH CONNECTION WITH THE TAXING
STATE IS HIGHLY MATERIAL.  FN32  ITS PRESENCE CANNOT BE THE CONTROLLING
CONSIDERATION FOR VALIDATING THE TAX.  NIPPERT V. RICHMOND, 327 U.S.
416.  IN THIS VIEW IT WOULD SEEM CLEAR THAT THE VALIDITY OF SUCH A TAX
AS INDIANA'S, APPLIED TO SITUATIONS LIKE THOSE PRESENTED IN THE ADAMS
CASE AND NOW, SHOULD BE DETERMINED BY REFERENCE NOT MERELY TO THE
"DIRECT INCIDENCE" OF THE TAX, BUT BY WHETHER THOSE FORBIDDEN
CONSEQUENCES WOULD BE PRODUCED, EITHER THROUGH THE ACTUAL INCIDENCE OF
MULTIPLE TAXES LAID BY DIFFERENT STATES OR BY THE THREAT OF THEM, WITH
RESULTING UNCERTAINTIES PRODUCING THE SAME IMPEDING CONSEQUENCES. 
FN33 

THUS, IT IS HIGHLY DOUBTFUL THAT THE LEVY IN THIS CASE, OR IN THE
ADAMS CASE, ACTUALLY HAD ANY IMPEDING EFFECT WHATEVER UPON THE
TRANSACTIONS OR THE FREE FLOW INTERSTATE OF SUCH COMMERCE.  FN34 BUT
THE ADAMS CASE FOUND THE IMPEDIMENT IN THE ASSUMPTION THAT IF ONE STATE
COULD TAX, SO ALSO COULD THE OTHER, AND IN THAT EVENT, A DOUBLE BURDEN
WOULD RESULT FOR INTERSTATE COMMERCE NOT BORNE BY LOCAL TRADE.  THIS
DANGER, IT WAS SAID, WAS INHERENT IN THE TYPE OF THE TAX, SINCE IT WAS
NOT APPORTIONED, AND IN CONSEQUENCE THE TAX AS APPLIED MUST FALL. 

THE BASIC ASSUMPTION WAS NOT TRUE AS A UNIVERSALLY OR EVEN A
GENERALLY RESULTING CONSEQUENCE, FOR TWO REASONS.  ONE IS THAT IT WOULD
NOT FOLLOW NECESSARILY AS A MATTER OF FACT THAT BOTH STATES WOULD TAX
OR, IF THEY DID SO, THAT THE COMBINED EFFECTS OF THE TAXES WOULD BE
EITHER TO CLOG OR TO IMPEDE THE COMMERCE.  FN35  THE OTHER, IT NO MORE
FOLLOWS, AS A MATTER OF LAW, THAT BECAUSE ONE STATE MAY TAX THE OTHER
MAY DO LIKEWISE. 

THE ADAMS DECISION DID NOT TAKE ACCOUNT OF ANY DIFFERENCE, AS REGARDS
THE RISK OF MULTIPLE STATE TAXATION, BETWEEN SITUATIONS WHERE THE
MULTIPLE BURDEN WOULD ACTUALLY OR PROBABLY BE INCURRED IN FACT AND
OTHERS IN WHICH NO SUCH RISK WOULD BE INVOLVED.  IT RATHER DISREGARDED
SUCH DIFFERENCES, SO THAT "THE RISK OF A DOUBLE TAX BURDEN" ON WHICH
THE COURT RELIED TO INVALIDATE THE LEVY WAS NOT ONE ACTUALLY, PROBABLY,
OR EVEN DOUBTFULLY IMPOSED IN FACT BY ANOTHER STATE.  FN36  IT RATHER
WAS ONE WHICH RESULTED ONLY FROM AN ASSUMED, AND AN UNEXERCISED, POWER
IN THAT STATE TO IMPOSE A SIMILAR TAX. 

THE COURT WAS NOT CONCERNED WITH WHETHER THE FORBIDDEN CONSEQUENCES
HAD BEEN INCURRED IN THE PARTICULAR SITUATION OR MIGHT NOT BE INCURRED
IN OTHERS COVERED BY ITS RULING.  THE MOTIVATING FEAR WAS MORE
GENERAL.  THE ULTIMATE RISK WHICH THE COURT SOUGHT TO AVOID WAS THE
DANGER THAT GROSS INCOME OR GROSS RECEIPTS TAX LEGISLATION, WITHOUT
APPORTIONMENT, MIGHT BE WIDELY ADOPTED IF THE DOOR WERE ONCE OPENED
AND, IF ADOPTED AND APPLIED TO INTERSTATE SALES BY ALL OR MANY OF THE
STATES, WOULD RESULT GENERALLY IN BRINGING SUCH SALES WITHIN THE
INCIDENCE OF MULTIPLE STATE TAXATION OF THAT NATURE.  RATHER THAN INCUR
THIS RISK, WITH THE ANTICIPATED CONSEQUENT WIDESPREAD CREATION OF
MULTIPLE LEVIES, THE COURT IN EFFECT FORESTALLED THEM AT THE SOURCE. 
ITS ACTION WAS PROPHYLACTIC AND THE PROPHYLAXIS WAS MADE ABSOLUTE. 

BY THUS RELIEVING INTERSTATE COMMERCE FROM LIABILITY TO PAY TAXES IN
EITHER STATE, WITHOUT ANY SHOWING THAT BOTH HAD LAID THEM, THE EFFECT
WAS, NOT SIMPLY TO RELIEVE THAT COMMERCE FROM MULTIPLE BURDEN, BUT TO
GIVE IT EXEMPTION FROM TAXES ALL OTHER TRADE MUST BEAR.  FN37  LOCAL
TRADE WAS THUS PLACED AT DISADVANTAGE WITH INTERSTATE TRADE, BY THE
AMOUNT OF THE TAX, AND THE COMMERCE CLAUSE THEREBY BECAME A REFUGE FOR
TAX EXEMPTION, NOT SIMPLY A MEANS OF PROTECTION AGAINST UNEQUAL OR
UNDUE TAXATION.  CERTAINLY ITS OBJECT WAS NOT TO CREATE FOR INTERSTATE
TRADE SUCH A SPECIALLY PRIVILEGED POSITION. 

BUT THE ALTERNATIVES TO SUCH A RULING WERE NOT THEMSELVES FREE FROM
DIFFICULTY.  THEY MAY BE STATED SHORTLY.  BUT PRELIMINARILY I ACCEPT
THE VIEW, FREQUENTLY DECLARED,  FN38  THAT A STATE RUNS AFOUL THE
COMMERCE CLAUSE WHEN IT SINGLES OUT INTERSTATE COMMERCE FOR SPECIAL
TAXATION NOT APPLIED TO OTHER TRADE OR OTHERWISE DISCRIMINATES AGAINST
IT OR TREATS IT INVIDIOUSLY.  MOREOVER, ALL OTHER THINGS BEING EQUAL,
MULTIPLE STATE TAXATION OF GROSS RECEIPTS, ALTHOUGH BY NON
DISCRIMINATORY TAXES OF GENERAL APPLICABILITY, DOES COMPEL THE LATTER
TO BEAR A HEAVIER TAX BURDEN THAN LOCAL TRADE IN EITHER STATE.  THE
CUMULATIVE TAX BURDEN IS IN EFFECT DISCRIMINATORY, INVOLVING IN ANY
PRACTICAL VIEW THE EXACT EFFECTS OF A SINGLE DISCRIMINATORY TAX. 
ALTHOUGH THE DIFFERENCE IN TOTAL TAX LOAD MAY NOT BE SUFFICIENT
ACTUALLY TO BLOCK OR IMPEDE THE FREE FLOW OF INTERSTATE TRADE,  FN39
DISCRIMINATION ALONE, WITHOUT REGARD TO SHOWING OF FURTHER
CONSEQUENCES, HAS BEEN HELD CONSISTENTLY TO BE SUFFICIENT FOR OUTLAWING
THE TAX. 

THIS TOO I ACCEPT.  FOR DISCRIMINATION NOT ONLY IS ORDINARILY ITSELF
INVIDIOUS TREATMENT, BUT HAS AN OBVIOUS TENDENCY TOWARD BLOCKING OR
IMPEDING THE COMMERCE, IF NOT ALWAYS THE ACTUAL EFFECT OF DOING SO.
NOR IS THE DISCRIMINATORY TENDENCY OR EFFECT LESSENED BECAUSE IT
RESULTS FROM CUMULATION OF TAX BURDENS RATHER THAN FROM A SINGLE TAX
PRODUCING THE SAME CONSEQUENCE.  TO ALLOW BOTH STATES TO TAX "TO THE
FULLEST EXTENT" WOULD PRODUCE THE INVIDIOUS SORT OF BARRIER OR
IMPEDIMENT THE COMMERCE CLAUSE WAS DESIGNED TO STOP.  BUT THE BARE
UNEXERCISED POWER OF ANOTHER STATE TO TAX DOES NOT PRODUCE SUCH
RESULTS.  IT ONLY OPENS THE WAY FOR THEM TO BE PRODUCED.  THIS DANGER
IS NOT FANCIFUL BUT REAL, MORE ESPECIALLY IN A TIME WHEN NEW SOURCES OF
REVENUE CONSTANTLY ARE BEING SOUGHT.  ACCORDINGLY, I AGREE THAT THIS
DOOR SHOULD NOT BE OPENED.    BUT IT IS NOT NECESSARY TO GO AS FAR AS
THE ADAMS CASE WENT, OR AS THE DECISION NOW RENDERED GOES, IN ORDER TO
PREVENT THE ANTICIPATED DELUGE.  THERE IS NO NEED TO GIVE INTERSTATE
COMMERCE A HAVEN OF REFUGE FROM TAXATION, ALBEIT OF GROSS RECEIPTS OR
FROM "DIRECT" INCIDENCE, IN ORDER TO SAFEGUARD IT FROM EVILS AGAINST
WHICH THE COMMERCE CLAUSE IS DESIGNEDLY PROTECTIVE.  LESS BROAD AND
ABSOLUTE ALTERNATIVES ARE AVAILABLE AND ARE ADEQUATE FOR THE PURPOSE OF
PROTECTION WITHOUT CREATING THE EVILS OF TOTAL EXEMPTION. 

THE ALTERNATIVE METHODS AVAILABLE FOR AVOIDING THE MULTIPLE STATE TAX
BURDEN MAY NOW BE STATED.  THEY ARE:  (1) TO APPLY THE ADAMS RULING,
STOPPING SUCH TAXES AT THE SOURCE, UNLESS THE TAX IS APPORTIONED, THUS
ELIMINATING THE CUMULATIVE BURDENS; FN40  (2) TO RULE THAT EITHER THE
STATE OF ORIGIN OR THE STATE OF MARKET, BUT NOT BOTH, CAN LEVY THE
EXACTION; (3) TO DETERMINE FACTUALLY IN EACH CASE WHETHER APPLICATION
OF THE TAX CAN BE MADE BY ONE STATE WITHOUT INCURRING ACTUAL DANGER OF
ITS BEING MADE IN ANOTHER OR THE RISK OF REAL UNCERTAINTY WHETHER IN
FACT IT WILL BE SO MADE. 

THE ADAMS SOLUTION IS NOT UNOBJECTIONABLE, FOR REASONS ALREADY SET
FORTH.  TO DEPRIVE EITHER STATE, WHETHER OF ORIGIN OR OF MARKET, OF THE
POWER TO LAY THE TAX, PERMITTING THE OTHER TO DO SO, HAS THE VICE OF
ALLOWING ONE STATE TO TAX BUT DENYING THIS POWER TO THE OTHER WHEN
NEITHER MAY BE AS MUCH AFFECTED BY THE DEPRIVATION AS WOULD BE THE ONE
ALLOWED TO TAX AND, IN ANY EVENT, BOTH MAY HAVE EQUAL OR SUBSTANTIAL
DUE PROCESS CONNECTIONS WITH THE TRANSACTION.  THE SOLUTION BY FACTUAL
DETERMINATION IN PARTICULAR CASES OF THE ACTUAL OR PROBABLE INCIDENCE
OF BOTH TAXES IS OPEN TO TWO OBJECTIONS.  ONE IS THAT TO SOME EXTENT IT
WOULD MAKE THE TAXING POWER OF ONE OR BOTH STATES DEPEND UPON WHETHER
THE OTHER HAD EXERCISED, OR PROBABLY WOULD EXERCISE, THE SAME POWER. 
THE OTHER WOULD LIE IN THE VOLUME OF LITIGATION SUCH A RULE WOULD
INCITE AND THE DIFFICULTIES, IN SOME CASES AT LEAST, OF MAKING THE
FACTUAL DETERMINATION. 

                                 VI. 

THE PROBLEM OF MULTIPLE STATE TAXATION, ABSENT OTHER FACTORS MAKING
FOR PROHIBITION, IS THEREFORE ONE OF CHOOSING AMONG EVILS.  THERE IS NO
IDEAL SOLUTION.  TO LEAVE THE MATTER TO CONGRESS, ALLOWING BOTH STATES
TO TAX "TO THE FULLEST EXTENT" UNTIL IT INTERVENES, WOULD RUN COUNTER
NOT ONLY TO THE LONG-ESTABLISHED RULES REQUIRING APPORTIONMENT WHERE
INCIDENCE OF MULTIPLE TAXES WOULD BE LIKELY, BUT ALSO IN SUBSTANCE AND
EFFECT TO THOSE FORBIDDING DISCRIMINATION, WITHOUT THE CONSENT OF
CONGRESS, CF. PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408, AS WELL AS
THE LONG-SETTLED RULE THAT THE CLAUSE IS "OF ITS OWN FORCE" A
PROHIBITION UPON THE STATES.  TO REQUIRE FACTUAL DETERMINATION OF
FORBIDDEN EFFECTS IN EACH CASE WOULD BE TO INVITE COSTLY LITIGATION,
MAKE DECISION TURN IN SOME CASES, PERHAPS MANY, ON DOUBTFUL FACTS OR
CONCLUSIONS, AND ENCOURAGE THE ENACTMENT OF LEGISLATION INVOLVING THOSE
CONSEQUENCES.  THE ADAMS RULING, AS I HAVE SAID, CREATES FOR MANY
SITUATIONS A TAX REFUGE FOR INTERSTATE COMMERCE AND DOES THIS IN BOTH
STATES. 

AS AMONG THE VARIOUS POSSIBILITIES, I THINK THE SOLUTION MOST NEARLY
IN ACCORD WITH THE COMMERCE CLAUSE, AT ONCE MOST CONSISTENT WITH ITS
PURPOSE AND LEAST OBJECTIONABLE FOR PRODUCING EITHER EVILS IT HAD NO
DESIGN TO BRING OR PRACTICAL DIFFICULTIES IN ADMINISTRATION, WOULD BE
TO VEST THE POWER TO TAX IN THE STATE OF THE MARKET, SUBJECT TO POWER
IN THE FORWARDING STATE ALSO TO TAX BY ALLOWING CREDIT TO THE FULL
AMOUNT OF ANY TAX PAID OR DUE AT THE DESTINATION.  THIS TOO IS MORE
NEARLY CONSONANT WITH WHAT THE MORE RECENT DECISIONS HAVE ALLOWED, IF
FULL ACCOUNT IS TAKEN OF THEIR EFFECTS. 

IN MCLEOD V. DILWORTH CO., 322 U.S. 327, 361, I HAVE SET FORTH THE
REASONS LEADING TO THIS CONCLUSION.  FN41  IT MAY BE ADDED THAT SUCH A
RESULT WOULD AVOID ALTOGETHER THE UNDESIRABLE FEATURES OF FACTUAL
DETERMINATION IN EACH CASE; WOULD PREVENT THE MULTIPLE AND, IN EFFECT,
DISCRIMINATORY BURDEN WHICH WOULD FOLLOW FROM ALLOWING BOTH STATES TO
TAX UNTIL CONGRESS SHOULD INTERVENE; AND WOULD REDUCE BY HALF, AT
LEAST, THE TAX REFUGE CREATED BY THE ADAMS RULING, WITHOUT INCURRING
OTHER OUTLAWED EFFECTS. 

IT IS TRUE THIS VIEW LOGICALLY WOULD DENY THE STATE OF ORIGIN POWER
TO TAX, NOTWITHSTANDING ITS ADEQUATE DUE PROCESS CONNECTIONS, EXCEPT BY
GIVING CREDIT FOR TAXES DUE AT THE DESTINATION.  FN42 BUT THE
FORWARDING STATE HAS NO GREATER POWER UNDER THE ADAMS RULING AND NONE
AT ALL UNDER THE PRESENT ONE IF IT IS TO BE APPLIED CONSISTENTLY AND,
AS I THINK, THIS CAN BE TAKEN TO OUTLAW BOTH UNAPPORTIONED AND
APPORTIONED TAXES. 

I HAVE NO DOUBT THAT UNDER THE LAW PREVAILING UNTIL NOW THIS TAX
WOULD HAVE BEEN SUSTAINED, IF APPORTIONED, UNDER THE ADAMS DECISION AND
OTHERS.  FN43  NOR HAVE I ANY QUESTION THAT SUCH A TAX LAID BY NEW YORK
WOULD BE UPHELD UNDER THOSE DECISIONS.  INDEED, IN MY OPINION, THE
NECESSARY EFFECT OF MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, AS
APPELLEE ASSERTS, IS TO SUSTAIN POWER IN THE STATE OF THE MARKET TO TAX
"TO THE FULLEST EXTENT" WITHOUT APPORTIONMENT BY NONDISCRIMINATORY
TAXES OF GENERAL APPLICABILITY, TRANSACTIONS ESSENTIALLY NO DIFFERENT
FROM THE ONES INVOLVED IN THIS CASE AND IN THE ADAMS CASE. 

IT IS TRUE THE BERWIND-WHITE CASE PURPORTED TO DISTINGUISH THE ADAMS
CASE.  BUT IT DID SO BY POINTING OUT THAT THE NEW YORK TAX WAS
"CONDITIONED UPON A LOCAL ACTIVITY, DELIVERY OF GOODS WITHIN THE STATE
UPON THEIR PURCHASE FOR CONSUMPTION" AND THAT "THE EFFECT OF THE TAX,
EVEN THOUGH MEASURED BY THE SALES PRICE, AS HAS BEEN SHOWN, NEITHER
DISCRIMINATES AGAINST NOR OBSTRUCTS INTERSTATE COMMERCE MORE THAN
NUMEROUS OTHER STATE TAXES WHICH HAVE REPEATEDLY BEEN SUSTAINED AS
INVOLVING NO PROHIBITED REGULATION OF INTERSTATE COMMERCE."  309 U.S.
33, 58. 

THIS COMES DOWN TO SUSTAINING THE TAX, AS WAS DONE IN AMERICAN MFG.
CO. V. ST. LOUIS, SUPRA, RELIED UPON TO DISTINGUISH THE ADAMS CASE,
SIMPLY BECAUSE THE TAX WAS PEGGED UPON THE "LOCAL INCIDENT" OF
DELIVERY.  APART FROM THE REASONS I HAVE SET FORTH ABOVE FOR REGARDING
THIS AS NOT BEING CONTROLLING, THAT BASIS WAS FLATLY REPUDIATED IN
NIPPERT V. RICHMOND, 327 U.S. 416, AS ADEQUATE FOR SUSTAINING A TAX
HAVING OTHERWISE THE FORBIDDEN EFFECTS AND FEATURES.  SO HERE, IN MY
OPINION, IT IS HARDLY ADEQUATE TO DISTINGUISH THE ADAMS CASE, LEAVING
IT UNIMPAIRED, OR TO DIFFERENTIATE CONSISTENTLY THE BROADER RULING MADE
IN THIS CASE. 

I THEREFORE AGREE WITH THE APPELLEE THAT THE EFFECT OF THE BERWIND
WHITE RULING WAS IN SUBSTANCE, THOUGH NOT IN WORDS, TO QUALIFY THE
ADAMS DECISION, AND THAT THE COMBINED EFFECT OF THE TWO CASES, TAKEN
TOGETHER, WAS TO PERMIT THE STATE OF THE MARKET TO TAX THE INTERSTATE
TRANSACTION, BUT TO DENY THIS POWER TO THE FORWARDING STATE, UNLESS BY
CREDIT OR OTHERWISE IT SHOULD MAKE PROVISION FOR APPORTIONMENT.  SEE
POWELL, NEW LIGHT ON GROSS RECEIPTS TAXES (1940) 53 HARV. L. REV. 909,
939.  WHETHER OR NOT SUCH A PROVISION WOULD SAVE THE INDIANA TAX AS NOW
APPLIED, IN VIEW OF WHAT I THINK WAS THE EFFECT OF BERWIND-WHITE ON ANY
BASIS OTHER THAN SHEER FORMALISM, NEED NOT NOW BE CONSIDERED.  FN44 

WHETHER OR NOT ACKNOWLEDGMENT OF THIS EFFECT OF THE BERWIND-WHITE
DECISION WOULD REQUIRE RECONSIDERATION OF THE VALIDITY OF APPORTIONED
TAXES OTHERWISE THAN BY FULL CREDIT, LAID BY THE FORWARDING STATE,
FN45  NEITHER THAT FACT NOR THE EFFECT OF BERWIND-WHITE IN QUALIFYING
THE ADAMS RULING JUSTIFIES THE BROADER RULING NOW MADE TO REACH THE
SAME RESULT AS THE ADAMS CASE REACHED.  THE TREND OF RECENT DECISIONS
HAS BEEN TOWARD SUSTAINING STATE TAXES FORMERLY REGARDED AS OUTLAWED BY
THE COMMERCE CLAUSE.  THE PRESENT DECISION, BY ITS REVERSION TO THE
FORMAL AND DISCARDED GROUNDING IN THE "DIRECT INCIDENCE" OF THE TAX, IS
A REVERSAL OF THAT TREND.  IT IS ONE, MOREOVER, UNNECESSARY FOR
SUSTAINING THE RESULT THE COURT HAS REACHED.  ITS CONSEQUENCE, IF
FOLLOWED IN LOGICAL APPLICATION TO APPORTIONED TAXES, WILL BE TO OUTLAW
THEM, FOR THEY BEAR AS "DIRECTLY" ON "THE COMMERCE ITSELF" AS DOES THE
TAX NOW STRICKEN DOWN IN ITS PRESENT APPLICATION.  SO ALSO DOES THE
TYPE OF TAX SUSTAINED IN THE BERWIND-WHITE CASE, IN EVERYTHING BUT
VERBALISM. 

I THINK THE RESULT NOW REACHED IS JUSTIFIED, AS NECESSARY TO PREVENT
THE CUMULATIVE AND THEREFORE DISCRIMINATORY TAX BURDEN WHICH WOULD REST
ON OR SERIOUSLY THREATEN INTERSTATE COMMERCE IF MORE THAN ONE STATE IS
ALLOWED TO IMPOSE THE TAX, AS DOES INDIANA, UPON THE GROSS RECEIPTS
FROM THE SALE WITHOUT APPORTIONMENT OR CREDIT FOR TAXES VALIDLY IMPOSED
ELSEWHERE.  THIS RESULT WOULD FOLLOW IN VIEW OF THE BERWIND-WHITE
DECISION AND OTHERS LIKE IT,  FN46  IF NOT ONLY THE STATE OF THE MARKET
BUT ALSO THE FORWARDING STATE COULD TAX THE SALE "TO THE FULLEST
EXTENT" UPON THE GROSS RECEIPTS.  FOR THIS REASON I CONCUR IN THE
RESULT. 

BUT IN DOING SO I DISSENT FROM GROUNDING THE DECISION UPON A
FOUNDATION WHICH NOT ONLY WILL OUTLAW PROPERLY APPORTIONED TAXES, THUS
GOING BEYOND THE ADAMS DECISION, UNLESS THE COURT IS MERELY TO
REITERATE THE RULE FORBIDDING "DIRECT" TAXATION OF INTERSTATE SALES
ONLY TO RECALL IT WHEN A CASE INVOLVING A PROPERLY APPORTIONED TAX
SHALL ARISE; BUT ALSO WILL REQUIRE OUTLAWING MANY OTHER TYPES OF TAX
HERETOFORE SUSTAINED, UNLESS A SIMILAR RETREAT IS MADE. 

FN1  THE COURT ADDED:  "WE HAVE REPEATEDLY HELD THAT SUCH A TAX IS A
REGULATION OF, AND A BURDEN UPON, INTERSTATE COMMERCE PROHIBITED BY
ARTICLE I, SEC. 8 OF THE CONSTITUTION.  THE OPINION OF THE STATE
SUPREME COURT STRESSES THE GENERALITY AND NONDISCRIMINATORY CHARACTER
OF THE EXACTION, BUT IT IS SETTLED THAT THIS WILL NOT SAVE THE TAX IF
IT DIRECTLY BURDENS INTERSTATE COMMERCE."  304 U.S. 307, 311-312.  CF.
NOTES 5 AND 16. 

FN2  THE ONLY FACTUAL DIFFERENCE IS THAT HERE THE SALES WERE OF
SECURITIES, THERE OF GOODS.  IT WAS THIS UPON WHICH INDIANA HAS RELIED
TO DISTINGUISH THE ADAMS CASE, ASSERTING ORIGINALLY THAT IT GAVE
DOMICILIARY FOUNDATION FOR SUSTAINING THE TAX.  THIS CLAIM DISAPPEARED,
IN EFFECT, AT THE SECOND ORAL ARGUMENT, AND THE COURT DOES NOT REST ON
IT.  I AGREE THAT, FOR PRESENT PURPOSES, SALES OF INTANGIBLES SHOULD BE
TREATED IDENTICALLY WITH SALES OF GOODS. 

FN3  SEE, E.G. PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141 U.S. 18;
CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450; U.S. EXPRESS CO. V.
MINNESOTA, 223 U.S. 335.  AND SEE ESPECIALLY DISCUSSION IN WESTERN LIVE
STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 255-257. 

FN4  COMPARE THE OPINION OF MR. JUSTICE FRANKFURTER IN NORTHWEST
AIRLINES V. MINNESOTA, 322 U.S. 292. 

FN5  AS THE COURT SAYS, "AN EXACTION BY A STATE FROM INTERSTATE
COMMERCE FALLS NOT BECAUSE OF A PROVEN INCREASE IN THE COST OF THE
PRODUCT.  WHAT MAKES THE TAX INVALID IS THE FACT THAT THERE IS
INTERFERENCE BY A STATE WITH THE FREEDOM OF INTERSTATE COMMERCE."  THE
ONLY "INTERFERENCE" HELD TO BE IMPORTANT IS THE DIRECT INCIDENCE OF THE
TAX ON THE COMMERCE, NOT THE DOUBLE BURDEN OR RISK OF IT. CF. NOTES 1
AND 16. 

FN6  SEE E.G. RIBBLE, STATE AND NATIONAL POWER OVER COMMERCE (1937)
204; DOWLING, INTERSTATE COMMERCE AND STATE POWER (1940) 27 VA. L. REV.
1, 3-10.  SEE ALSO FRANKFURTER, THE COMMERCE CLAUSE (1937) 53:  "HAD
MARSHALL'S THEORY OF THE 'DORMANT' COMMERCE POWER PREVAILED, THE
TAXABLE RESOURCES OF THE STATES WOULD HAVE BEEN GREATLY CONFINED.  THE
FULL IMPLICATIONS OF HIS THEORY, IF LOGICALLY PURSUED, MIGHT WELL HAVE
PROFOUNDLY ALTERED THE RELATIONS BETWEEN THE STATES AND THE CENTRAL
GOVERNMENT." 

FN7  SEE NOTE 6.  SEE ALSO WECHSLER, STONE AND THE CONSTITUTION
(1946) 46 COL. L. REV. 764, 785, QUOTED IN NOTE 10 INFRA. 

FN8  CF. TEXT INFRA AT NOTES 14 TO 16, ALSO 21, AND AUTHORITIES
CITED. 

FN9  SEE E.G., ROBBINS V. SHELBY COUNTY TAXING DISTRICT, 120 U.S.
489; REAL SILK HOSIERY MILLS V. PORTLAND, 268 U.S. 325; NIPPERT V.
RICHMOND, 327 U.S. 416, AND AUTHORITIES CITED. 

FN10  SEE RIBBLE, SUPRA, AT 72 FF.; FRANKFURTER, SUPRA, AT 24, 56;
WECHSLER, STONE AND THE CONSTITUTION (1946) 46 COL. L. REV. 764, 785:
"IT WILL SUMMARIZE HIS BASIC CONCEPTION TO SAY THAT AS THE ISSUES WERE
FRAMED IN THE LONG DEBATE THE POSITION TAKEN BY THE COURT IN COOLEY V.
BOARD OF WARDENS COMES CLOSEST TO ACCORDING WITH HIS THOUGHT." 

FN11  "EXPERIENCE HAS TAUGHT THAT THE OPPOSING DEMANDS THAT THE
COMMERCE SHALL BEAR ITS SHARE OF LOCAL TAXATION, AND THAT IT SHALL NOT,
ON THE OTHER HAND, BE SUBJECTED TO MULTIPLE TAX BURDENS MERELY BECAUSE
IT IS INTERSTATE COMMERCE, ARE NOT CAPABLE OF RECONCILIATION BY RESORT
TO THE SYLLOGISM.  PRACTICAL RATHER THAN LOGICAL DISTINCTIONS MUST BE
SOUGHT."  WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 259. 
SEE ALSO THE DISSENTING OPINION OF MR. JUSTICE STONE IN DI SANTO V.
PENNSYLVANIA, 273 U.S. 34, 44(OVERRULED BY CALIFORNIA V. THOMPSON, 313
U.S. 109), "IN THUS MAKING USE OF THE EXPRESSIONS, 'DIRECT' AND
'INDIRECT INTERFERENCE' WITH COMMERCE, WE ARE DOING LITTLE MORE THAN
USING LABELS TO DESCRIBE A RESULT RATHER THAN ANY TRUSTWORTHY FORMULA
BY WHICH IT IS REACHED." 

FN12  SEE, E.G., MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309
U.S. 33; GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S. 434; NIPPERT V.
RICHMOND, 327 U.S. 416. 

FN13  GROSS RECEIPTS TAXES WHICH HAVE BEEN SUSTAINED FALL INTO THE
FOLLOWING GROUPS:  (A) THOSE WHICH WERE FAIRLY APPORTIONED.  SEE, E.G.,
ILLINOIS CENT. R. V. MINNESOTA, 309 U.S. 157; PULLMAN'S PALACE CAR CO.
V. PENNSYLVANIA, 141 U.S. 18; WISCONSIN & MICHIGAN RY. V. POWERS, 191
U.S. 379; U.S. EXPRESS CO. V. MINNESOTA, 223 U.S. 335; FICKLEN V.
TAXING DISTRICT, 145 U.S. 1.  (B) THOSE WHICH HAVE BEEN JUSTIFIED ON A
"LOCAL INCIDENCE" THEORY.  SEE, E.G., WESTERN LIVE STOCK V. BUREAU OF
REVENUE, 303 U.S. 250, WITH WHICH COMPARE FISHER'S BLEND STATION V. TAX
COMM'N, 297 U.S. 650; MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309
U.S. 33; AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459.  SEE ALSO CASES
CITED IN NOTE 21.  IN MANY CASES APPORTIONED GROSS RECEIPTS TAXES HAVE
BEEN SUSTAINED NOT ON THE GROUND THAT THEY WERE APPORTIONED BUT THAT
THEY WERE LOCAL IN NATURE.  SEE, E.G., MAINE V. GRAND TRUNK RY., 142
U.S. 217; NEW YORK, L.E. & W.R. CO. V. PENNSYLVANIA, 158 U.S. 431;
WISCONSIN & MICHIGAN RY. V. POWERS, SUPRA; U.S. EXPRESS CO. V.
MINNESOTA, SUPRA. 

GROSS RECEIPTS TAXES WHICH HAVE NOT BEEN SUSTAINED FALL INTO THE
FOLLOWING GROUPS:  (A) THOSE WHICH WERE NOT FAIRLY APPORTIONED.  SEE,
E.G., OKLAHOMA V. WELLS FARGO CO., 223 U.S. 298.  (B) THOSE WHICH WERE
NOT APPORTIONED AND SUBJECTED INTERSTATE COMMERCE TO THE RISK OF
MULTIPLE TAXATION.  PHILADELPHIA & SO. S.S. CO. V. PENNSYLVANIA, 122
U.S. 326; RATTERMAN V. WESTERN UNION TELEGRAPH CO., 127 U.S. 411;
WESTERN UNION TELEGRAPH CO. V. ALABAMA, 132 U.S. 472; ADAMS MFG. CO. V.
STOREN, 304 U.S. 307; GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S. 434,
439.  CF. FARGO V. MICHIGAN, 121 U.S. 230, AS EXPLAINED IN WESTERN LIVE
STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 256.  (C) THOSE IN WHICH
THERE WAS A DISCRIMINATORY ELEMENT IN THAT THEY WERE DIRECTED
EXCLUSIVELY "AT TRANSPORTATION AND COMMUNICATION," LOCKHART, GROSS
RECEIPTS TAXES ON TRANSPORTATION (1943) 57 HARV. L. REV. 40, 65-66. 
GALVESTON, H. & S.A. RY. V. TEXAS, 210 U.S. 217, AND CF. NEW JERSEY
TEL. CO. V. TAX BOARD, 280 U.S. 338.  BUT SEE NASHVILLE, C. & ST. L.
RY. V. BROWNING, 310 U.S. 362.  IN BOTH THE GALVESTON AND NEW JERSEY
TELEPHONE COMPANY CASES, ALTHOUGH THE TAXABLE EVENTS ALL OCCURRED
WITHIN THE TAXING STATE, THE POSSIBILITY OF MULTIPLE TAXATION WAS
NEVERTHELESS PRESENT.  (D) THOSE IN WHICH THERE WAS NO DISCRIMINATION
BUT A POSSIBLE MULTIPLE BURDEN.  FISHER'S BLEND STATION V. TAX COMM'N,
SUPRA, AS EXPLAINED IN WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303
U.S. AT 260-261.  (E) THOSE IN WHICH THERE WAS NO DISCRIMINATION, NO
APPORTIONMENT AND NO POSSIBILITY OF MULTIPLE BURDEN.  PUGET SOUND
STEVEDORING CO. V. TAX COMMISSION, 302 U.S. 90.  THIS DECISION, IT MAY
BE NOTED, MIGHT HAVE BEEN RESTED UPON THE CLAUSE OF THE CONSTITUTION
FORBIDDING THE STATES TO TAX EXPORTS.  CF. RICHFIELD OIL CORP. V. STATE
BOARD, 329 U.S. 69. 

FN14  CF. CALIFORNIA V. THOMPSON, 313 U.S. 109; UNION BROKERAGE CO.
V. JENSEN, 322 U.S. 202; ROBERTSON V. CALIFORNIA, 328 U.S. 440. 
INDEED, SOMETIMES POLICE REGULATIONS BEAR MORE HEAVILY ON INTERSTATE
COMMERCE.  CF. ROBERTSON V. CALIFORNIA, SUPRA, AND CASES CITED AT NOTE
28 THEREIN. 

FN15  SEE CASES CITED IN NOTE 13, SUPRA. 

FN16  THE COURT SAID, IN ANSWER TO THE INDIANA SUPREME COURT'S
EMPHASIS UPON THE "GENERALITY AND NONDISCRIMINATORY CHARACTER" OF THE
LEVY, "BUT IT IS SETTLED THAT THIS WILL NOT SAVE THE TAX IF IT DIRECTLY
BURDENS INTERSTATE COMMERCE."  304 U.S. AT 312; CF. NOTE 1, SUPRA.  THE
SAME STATEMENT IS NOW MADE IN THIS CASE NOT TO SUPPORT THE CONCLUSION
THAT THESE FEATURES CANNOT SAVE A TAX WHERE THE RISK OF MULTIPLE STATE
TAXATION WOULD OUTLAW IT, AS IN THE ADAMS CASE, BUT TO SUPPORT THE
VASTLY BROADER GROUNDING THAT THE TAX IS INVALID SIMPLY BECAUSE IT IS
"DIRECT" IN ITS INCIDENCE.  THE QUOTED ADAMS STATEMENT HAD NO SUCH
SIGNIFICANCE, AS APPEARS NOT ONLY FROM ITS IMMEDIATE CONTEXT BUT ALSO
FROM THE FURTHER STATEMENT, MADE APROPOS OF AMERICAN MFG. CO. V. ST.
LOUIS, 250 U.S. 459, IN AN EFFORT TO DISTINGUISH IT:  "IT IS BECAUSE
THE TAX, FORBIDDEN AS TO INTERSTATE COMMERCE, REACHES INDISCRIMINATELY
AND WITHOUT APPORTIONMENT, THE GROSS COMPENSATION FOR BOTH INTERSTATE
COMMERCE AND INTRASTATE ACTIVITIES THAT IT MUST FAIL IN ITS ENTIRETY SO
FAR AS APPLIED TO RECEIPTS FROM SALES INTERSTATE."  304 U.S. AT 314. 
NOT "DIRECT" TAXATION SIMPLY, BUT TAXING THE ENTIRE PROCEEDS WITHOUT
APPORTIONMENT IN THE FACE OF THREATENED OR POSSIBLE MULTIPLE STATE
TAXATION WAS THE "DIRECT BURDEN" FOUND AND OUTLAWED IN THE ADAMS CASE. 

FN17  "IF THE ONLY THING NECESSARY TO SUSTAIN A STATE TAX BEARING
UPON INTERSTATE COMMERCE WERE TO DISCOVER SOME LOCAL INCIDENT WHICH
MIGHT BE REGARDED AS SEPARATE AND DISTINCT FROM 'THE TRANSPORTATION OR
INTERCOURSE WHICH IS' THE COMMERCE ITSELF AND THEN TO LAY THE TAX ON
THAT INCIDENT, ALL INTERSTATE COMMERCE COULD BE SUBJECTED TO STATE
TAXATION AND WITHOUT REGARD TO THE SUBSTANTIAL ECONOMIC EFFECTS OF THE
TAX UPON THE COMMERCE."  NIPPERT V. RICHMOND, 327 U.S. 416, 423. 

FN18  TO SAY THAT THIS WAS NOT IN SUBSTANCE A TAX ON GROSS RECEIPTS,
BECAUSE SALES IN ST. LOUIS OF GOODS MADE ELSEWHERE WERE NOT TAKEN INTO
ACCOUNT IN MEASURING THE TAX, IS SIMPLY TO IGNORE THE FACT THAT THE TAX
DID INCLUDE ALL INTERSTATE SALES OF GOODS MANUFACTURED AND ALL RETURNS
FROM THEM.  THAT THE LOCAL SALES OF GOODS BROUGHT IN FROM OTHER STATES
WERE EXCEPTED DOES NOT MEAN EITHER THAT THOSE SALES WERE INTERSTATE
TRANSACTIONS (WHICH IT WAS NOT NECESSARY TO DECIDE IN VIEW OF THEIR
EXEMPTION) OR THAT THE SALES OUT OF STATE INCLUDED IN THE MEASURE WERE
NOT INTERSTATE TRANSACTIONS; OR THAT THEY WERE NOT, IN SUBSTANTIAL
EFFECT, TAXED UPON THEIR GROSS RETURNS BY THE MEASURE, NOTWITHSTANDING
THE TAX WAS MADE LEGALLY TO FALL UPON THE PRIVILEGE OF MANUFACTURING. 

THE ADAMS DECISION PURPORTED TO DISTINGUISH AMERICAN MFG. CO. V. ST.
LOUIS SIMPLY ON THE GROUND THAT THE TAX WAS NOT ONE LAID ON THE
TAXPAYER'S SALES OR THE INCOME DERIVED FROM THEM, BUT WAS A LICENSE FEE
FOR ENGAGING IN THE MANUFACTURE WHICH COULD BE MEASURED "BY THE SALES
PRICE OF THE GOODS PRODUCED RATHER THAN BY THEIR VALUE AT THE DATE OF
MANUFACTURE." 

FN19  IN ADDITION TO AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459,
SEE OLIVER IRON CO. V. LORD, 262 U.S. 172; HOPE NATURAL GAS CO. V.
HALL, 274 U.S. 284; UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165. 

FN20  CF. GALVESTON, H. & S.A.R. CO. V. TEXAS, 210 U.S. 217, 227;
MORRISON, STATE TAXATION OF INTERSTATE COMMERCE (1942) 36 ILL. L. REV.
727, 738. 

FN21  SEE POSTAL TELEGRAPH CABLE CO. V. ADAMS, 155 U.S. 688; U.S.
EXPRESS CO. V. MINNESOTA, 223 U.S. 335; PULLMAN CO. V. RICHARDSON, 261
U.S. 330.  SEE ALSO DISCUSSION IN GALVESTON, H. & S.A.R. CO. V. TEXAS,
210 U.S. 217, 226-227. 

FN22  THIS IS TRUE, THOUGH CONCEDEDLY SUCH A TAX MIGHT WORK TO
PREVENT CUMULATIVE OR HIGHER TAX BURDENS IMPOSED BY A SINGLE TAXING
STATE.  CF. LOCKHART, GROSS RECEIPTS TAXES ON INTERSTATE TRANSPORTATION
AND COMMUNICATION (1943) 57 HARV. L. REV. 40. 

FN23  SEE NIPPERT V. RICHMOND, 327 U.S. 416; BEST & CO. V. MAXWELL,
311 U.S. 454.  CF. PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408.  SEE
ALSO WECHSLER, STONE AND THE CONSTITUTION (1946) 46 COL. L. REV. 764,
785-787. 

FN24  SEE DISSENTING OPINION IN MCLEOD V. DILWORTH CO., 322 U.S. 327,
AT 356-357.  SEE ALSO WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 444
445. 

FN25  SEE MCNAMARA, JURISDICTIONAL AND INTERSTATE COMMERCE PROBLEMS
IN THE IMPOSITION OF EXCISES ON SALES (1941) 8 LAW & CONTEMP.  PROB. 
482, 491.  COMPARE THE DISCUSSION OF A PROPOSED FEDERAL STATUTE TO GIVE
THE BUYER'S STATE THE RIGHT TO IMPOSE NONDISCRIMINATORY SALES TAXES. 
PROC. 27TH ANN. CONF. NAT. TAX ASSN. (1934) 136-160.  SEE ALSO PERKINS,
THE SALES TAX AND TRANSACTIONS IN INTERSTATE COMMERCE (1934) 12 N.C.L.
REV. 99. 

FN26  CF. NOTE 25. 

FN27  INDIANA WAS THE STATE BY WHOSE LAW THE TRUST WAS CREATED.  IT
WAS THE SITUS OF THE TRUST'S ADMINISTRATION.  IT WAS THE PLACE WHERE
THE SECURITIES WERE KEPT PRIOR TO MAILING FOR DELIVERY IN ACCORDANCE
WITH THE TERMS OF THEIR SALE.  CF. CURRY V. MCCANLESS, 307 U.S. 357. 
THE DIRECTIONS FOR SALE WERE GIVEN THERE.  THE PROCEEDS WERE FORWARDED
TO INDIANA AND THERE RECEIVED INTO THE CORPUS OF THE TRUST.  THE
STATE'S CONNECTIONS WITH THE TRUST, AND WITH THE PROPERTY WHICH WAS THE
SUBJECT OF THE SALE, MORE THAN SATISFY ANY DUE PROCESS REQUIREMENT FOR
EXERCISE OF THE POWER TO TAX EITHER THE PROPERTY OR TRANSACTIONS
RELATING TO ITS DISPOSITION TAKING PLACE AS LARGELY WITHIN INDIANA'S
BORDERS AS DID THE SALES IN THIS CASE. 

FN28  THE CASES, ASIDE FROM ADAMS MFG. CO. V. STOREN, 304 U.S. 307,
WHICH INVOLVE THE INDIANA GROSS RECEIPTS TAX ARE:  DEPARTMENT OF
TREASURY V. WOOD PRESERVING CORP., 313 U.S. 62; DEPARTMENT OF TREASURY
V. INGRAM-RICHARDSON MFG. CO., 313 U.S. 252; INTERNATIONAL HARVESTER
CO. V. DEPT. OF TREASURY, 322 U.S. 340; FORD MOTOR CO. V. DEPT. OF
TREASURY, 323 U.S. 459.  SEE ALSO GENERAL TRADING CO. V. STATE TAX
COMMISSION, 322 U.S. 335; CF. NORTHWEST AIRLINES V. MINNESOTA, 322 U.S.
292. 

FN29  SEE, E.G., MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33; NELSON
V. SEARS, ROEBUCK & CO., 312 U.S. 359; GENERAL TRADING CO. V. TAX
COMMISSION, 322 U.S. 335; WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303
U.S. 250; COVERDALE V. ARKANSAS-LOUISIANA PIPE LINE CO., 303 U.S. 604;
DEPARTMENT OF TREASURY V. INGRAM-RICHARDSON MFG. CO., 313 U.S. 252. 

FN30  COMPARE MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, WITH
MCLEOD V. DILWORTH CO., 322 U.S. 327.  SEE POWELL, NEW LIGHT ON GROSS
RECEIPTS TAXES (1940) 53 HARV. L. REV. 909. 

FN31  SEE MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, 58, QUOTED
INFRA PART VI. 

FN32  AS A MATTER OF MINIMAL DUE PROCESS REQUIREMENTS.  CF. TEXT
INFRA AT NOTES 24 TO 27. 

FN33  THE DANGER OF AN IMPENDING BURDEN OR BARRIER FROM MULTIPLE
STATE TAXATION COULD BE REAL AND SUBSTANTIAL IN A PARTICULAR CASE IF
THE THREAT OF SUCH TAXATION WERE ACTUAL OR PROBABLE OR IF ITS
THREATENED INCIDENCE WERE INVOLVED IN SUCH ACTUAL UNCERTAINTY THAT THIS
UNCERTAINTY ITSELF WOULD CONSTITUTE, IN PRACTICAL EFFECT, A SUBSTANTIAL
CLOG. 

FN34  THE INDIANA TAX WAS ONLY ONE PER CENT OF THE PROCEEDS OF THE
SALES.  THE RECORD INDICATES, TOO, THAT THE NEW YORK STOCK TRANSFER TAX
WAS COLLECTED FROM THE PROCEEDS OF THE SALE IN NEW YORK.  THE AMOUNT OF
THE TAX WAS THREE CENTS PER SHARE SOLD FOR LESS THAN TWENTY DOLLARS,
AND FOUR CENTS PER SHARE SOLD FOR MORE THAN TWENTY DOLLARS.  TAX LAW
SECS. 270, 270A; O'KANE V. NEW YORK, 283 N.Y. 439, 28 N.E.2D 905.  THE
TAX DID NOT APPLY TO THE TRANSFER OF BONDS.  CF. OP. ATTY. GEN. N.Y.
1939, P. 208. 

FN35  CF. NOTE 31.  WHETHER SUCH A TAX WOULD IN FACT PRODUCE THE
FORBIDDEN RESULTS OR NOT WOULD DEPEND UPON THE INCIDENCE OR LIKELIHOOD
OF THE INCIDENCE OF A LIKE TAX IN THE OTHER, OR ANOTHER, JURISDICTION
HAVING SIMILAR POWER.  FREQUENTLY THIS LIKELIHOOD WILL BE, IN FACT,
EITHER NIL OR SMALL. 

FN36  THE OPINION DISCLOSES NO CONSIDERATION OF ANY QUESTION OR
SUGGESTION WHETHER A LIKE OR OTHER TAX HAD BEEN OR WAS LIKELY TO BE
IMPOSED BY THE STATE OF DESTINATION, OR EVEN THAT SUCH A TAX BY THAT
STATE WAS DOUBTFULLY INCIDENT.  SUCH AN INQUIRY WOULD HAVE BEEN
INCONSISTENT WITH THE COURT'S THESIS. 

FN37  IT IS ASSUMED, OF COURSE, THAT A NONDISCRIMINATORY TAX OF
GENERAL APPLICABILITY LAID BY THE TAXING STATE WOULD BE INVOLVED. 

FN38  SEE BEST & CO. V. MAXWELL, 311 U.S. 454; HALE V. BIMCO TRADING
CO., 306 U.S. 375; GUY V. BALTIMORE, 100 U.S. 434; WEBBER V. VIRGINIA,
103 U.S. 344; WELTON V. MISSOURI, 91 U.S. 275; VOIGHT V. WRIGHT, 141
U.S. 62; BRIMMER V. REBMAN, 138 U.S. 78. 

FN39  FOR A VARIETY OF REASONS, AMONG WHICH MIGHT BE THE LARGER
CAPACITY OF SUCH TRADE TO ABSORB THE DIFFERENCE, BY REASON OF GREATER
VOLUME, WITHOUT SUSTAINING LOSS OF PROFIT, IN THE PARTICULAR SORT OF
COMMERCE OR TYPE OF TRANSACTION.  SEE ALSO NOTE 34. 

FN40  THE ADAMS DECISION, OF COURSE, MADE NO DIRECT RULING UPON AN
ACTUAL TAX LAID BY THE STATE OF DESTINATION.  BUT THE BASIC PREMISE OF
ITS RATIONALIZATION WOULD BE ALTOGETHER WITHOUT SUBSTANCE IF IT WERE
TAKEN TO MEAN THAT SUCH A TAX COULD BE LEVIED THERE WITHOUT MEETING THE
SAME BARRIER, AND FOR THE SAME REASON, AS THE TAX LEVIED BY INDIANA,
THE STATE OF ORIGIN, ENCOUNTERED. 

FN41  "IF IN THIS CASE IT WERE NECESSARY TO CHOOSE BETWEEN THE STATE
OF ORIGIN AND THAT OF MARKET FOR THE EXERCISE OF EXCLUSIVE POWER TO
TAX, OR FOR REQUIRING ALLOWANCE OF CREDIT IN ORDER TO AVOID THE
CUMULATIVE BURDEN, IN MY OPINION THE CHOICE SHOULD LIE IN FAVOR OF THE
STATE OF MARKET RATHER THAN THE STATE OF ORIGIN.  THE FORMER IS THE
STATE WHERE THE GOODS MUST COME IN COMPETITION WITH THOSE SOLD
LOCALLY.  IT IS THE ONE WHERE THE BURDEN OF THE TAX NECESSARILY WILL
FALL EQUALLY ON BOTH CLASSES OF TRADE.  TO CHOOSE THE TAX OF THE STATE
OF ORIGIN PRESENTS AT LEAST SOME POSSIBILITIES THAT THE BURDEN IT
IMPOSES ON ITS LOCAL TRADE, WITH WHICH THE INTERSTATE TRAFFIC DOES NOT
COMPETE, AT ANY RATE DIRECTLY, WILL BE HEAVIER THAN THAT PLACED BY THE
CONSUMING STATE ON ITS LOCAL BUSINESS OF THE SAME CHARACTER." 

FN42  CREDIT ALLOWED FOR TAXES PAID ELSEWHERE, SEE HENNEFORD V. SILAS
MASON CO., 300 U.S. 577; GENERAL TRADING CO. V. TAX COMMISSION, 322
U.S. 335, IS A FORM OF APPORTIONMENT, THOUGH NOT THE ONLY ONE. 

FN43  SEE ALSO GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S. 434. 

FN44  IT IS OBVIOUS THAT AN APPORTIONED TAX LAID BY THE FORWARDING
STATE, TAKEN IN CONJUNCTION WITH AN UNAPPORTIONED ONE LEVIED BY THE
STATE OF THE MARKET, WOULD PRODUCE THE EFFECT OF MULTIPLE STATE LEVIES
TO THE EXTENT OF THE APPORTIONED TAX UNLESS THE APPORTIONMENT WERE MADE
BY GIVING FULL CREDIT FOR THE OTHER TAX.  IN THE LATTER EVENT, OF
COURSE, THERE WOULD BE NO EFFECT OF MULTIPLE BURDEN IN THE SENSE
FORBIDDEN BY THE RULE REQUIRING APPORTIONMENT AND SUSTAINING PROPERLY
APPORTIONED TAXES.  IN THE ABSENCE OF A CREDIT TO THE FULL AMOUNT OF
THE MARKETING STATE'S TAX, THE APPORTIONED TAX OF THE FORWARDING STATE,
ALTHOUGH MAKING A CUMULATIVE BURDEN, WOULD IMPOSE ONLY A REDUCED ONE AS
COMPARED WITH AN UNAPPORTIONED TAX BY THAT STATE.    FN45  CF. NOTE
44. 

FN46  SEE THE "USE TAX" CASES:  GENERAL TRADING CO. V. TAX
COMMISSION, 322 U.S. 335; FELT & TARRANT MFG. CO. V. GALLAGHER, 306
U.S. 62; NELSON V. SEARS, ROEBUCK & CO., 312 U.S. 359; NELSON V.
MONTGOMERY WARD & CO., 312 U.S. 373.  SEE ALSO JAGELS V. TAYLOR, 309
U.S. 619, DISCUSSED IN MCNAMARA, SUPRA, NOTE 25, AT 487. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MURPHY CONCURS,
DISSENTING. 

I THINK THE COURT CONFUSES A GROSS RECEIPTS TAX ON THE INDIANA BROKER
WITH A GROSS RECEIPTS TAX ON HIS INDIANA CUSTOMER.  GWIN, WHITE &
PRINCE, INC. V. HENNEFORD, 305 U.S. 434, WOULD HOLD INVALID A GROSS
RECEIPTS TAX, UNAPPORTIONED, ON THE BROKER.  IN THAT CASE THE TAXPAYER
WAS A MARKETING AGENT FOR FRUIT GROWERS IN THE STATE OF WASHINGTON. 
THE AGENT MADE SALES AND DELIVERIES OF THE FRUIT IN OTHER STATES AND IN
FOREIGN COUNTRIES, COLLECTED THE SALES PRICES, AND REMITTED THE
PROCEEDS, LESS CHARGES, TO THE CUSTOMERS.  THE COURT HELD THAT THE
GROSS RECEIPTS TAX, BEING UNAPPORTIONED, WAS INVALID.  THERE ARE TWO
REASONS WHY THAT RESULT FOLLOWED.  IN THE FIRST PLACE, AS THE COURT
STATED AT P. 437, "THE ENTIRE SERVICE FOR WHICH THE COMPENSATION IS
PAID IS IN AID OF THE SHIPMENT AND SALE OF MERCHANDISE" IN INTERSTATE
OR FOREIGN COMMERCE.  "SUCH SERVICES ARE WITHIN THE PROTECTION OF THE
COMMERCE CLAUSE."  IN THE SECOND PLACE, AS THE COURT STATED AT P. 439,
"IF WASHINGTON IS FREE TO EXACT SUCH A TAX, OTHER STATES TO WHICH THE
COMMERCE EXTENDS MAY, WITH EQUAL RIGHT, LAY A TAX SIMILARLY MEASURED
FOR THE PRIVILEGE OF CONDUCTING WITHIN THEIR RESPECTIVE TERRITORIAL
LIMITS THE ACTIVITIES THERE WHICH CONTRIBUTE TO THE SERVICE.  THE
PRESENT TAX, THOUGH NOMINALLY LOCAL, THUS IN ITS PRACTICAL OPERATION
DISCRIMINATES AGAINST INTERSTATE COMMERCE, SINCE IT IMPOSES UPON IT,
MERELY BECAUSE INTERSTATE COMMERCE IS BEING DONE, THE RISK OF A
MULTIPLE BURDEN TO WHICH LOCAL COMMERCE IS NOT EXPOSED." 

UNDER THAT VIEW A TAX ON THE COMMISSIONS OF THE INDIANA BROKER WOULD
BE INVALID.  BUT I SEE NO MORE REASON FOR GIVING THE CUSTOMER IMMUNITY
THAN I WOULD FOR GIVING IMMUNITY TO THE FRUIT GROWERS WHO SOLD THEIR
FRUIT THROUGH THE BROKER IN GWIN, WHITE & PRINCE, INC. V. HENNEFORD,
SUPRA. 

CONCEDEDLY ALMOST ANY LOCAL ACTIVITY COULD, IF INTEGRATED WITH
EARLIER OR SUBSEQUENT TRANSACTIONS, BE TREATED AS PARTS OF AN
INTERSTATE WHOLE.  IN THAT VIEW AMERICAN MFG. CO. V. ST. LOUIS, 250
U.S. 459, WOULD FIND SURVIVAL DIFFICULT.  FOR IN THAT CASE A STATE TAX
ON A MANUFACTURER WAS UPHELD THOUGH THE TAX WAS MEASURED BY THE VALUE
OF THE GOODS MANUFACTURED WITHIN THE STATE AND THEREAFTER SOLD IN
INTERSTATE COMMERCE.  IN WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303
U.S. 250, A TAX LAID ON THE GROSS RECEIPTS OF A TRADE JOURNAL PUBLISHED
IN NEW MEXICO WAS SUSTAINED ALTHOUGH OUT-OF-STATE ADVERTISEMENTS WERE
INCLUDED IN THE JOURNAL AND THERE WAS INTERSTATE DISTRIBUTION OF IT.
THE COURT TREATED THE LOCAL BUSINESS AS SEPARATE AND DISTINCT FROM THE
TRANSPORTATION AND INTERCOURSE WHICH ARE INTERSTATE COMMERCE AND WHICH
WERE EMPLOYED TO CONDUCT THE BUSINESS. 

I THINK THE LEAST THAT CAN BE SAID IS THAT THE LOCAL TRANSACTIONS OR
ACTIVITIES OF THIS TAXPAYER CAN BE AS EASILY UNTANGLED FROM THE
INTERSTATE ACTIVITIES OF HIS BROKER. 

ANY RECEIPT OF INCOME IN INDIANA FROM OUT-OF-STATE SOURCES INVOLVES,
OF COURSE, THE USE OF INTERSTATE AGENCIES OF COMMUNICATION.  THAT
ALONE, HOWEVER, IS NO BARRIER TO ITS TAXATION BY INDIANA.  WESTERN LIVE
STOCK V. BUREAU OF REVENUE, SUPRA.  CF. NEW YORK EX REL. COHN V.
GRAVES, 300 U.S. 308.  THE RECEIPT OF INCOME IN INDIANA, LIKE THE
DELIVERY OF PROPERTY THERE, INTERNATIONAL HARVESTER CO. V. DEPT. OF
TREASURY, 322 U.S. 340, IS A LOCAL TRANSACTION WHICH CONSTITUTIONALLY
CAN BE MADE A TAXABLE EVENT.  FOR A LOCAL ACTIVITY WHICH IS SEPARATE
AND DISTINCT FROM INTERSTATE COMMERCE MAY BE TAXED THOUGH INTERSTATE
ACTIVITY IS INDUCED OR OCCASIONED BY IT. WESTERN LIVE STOCK V. BUREAU
OF REVENUE, SUPRA, P. 253.  THE MANAGEMENT OF AN INVESTMENT PORTFOLIO
WITH INCOME FROM OUT-OF-STATE SOURCES IS AS MUCH A LOCAL ACTIVITY AS
THE MANUFACTURE OF GOODS DESTINED FOR INTERSTATE COMMERCE, AMERICAN
MFG. CO. V. ST. LOUIS, SUPRA, THE PUBLICATION OF A TRADE JOURNAL WITH
INTERSTATE REVENUES, WESTERN LIVE STOCK V. BUREAU OF REVENUE, SUPRA, OR
THE GROWING OF FRUIT FOR INTERSTATE MARKETS, GWIN, WHITE & PRINCE, INC.
V. HENNEFORD, SUPRA.  ALL SUCH TAXES AFFECT IN SOME MEASURE INTERSTATE
COMMERCE OR INCREASE THE COST OF DOING IT.  BUT, AS WE POINTED OUT IN
MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S. 33, 48, THAT IS
NO CONSTITUTIONAL OBSTACLE. 

ADAMS MFG. CO. V. STOREN, 304 U.S. 307, IS DIFFERENT.  IN THAT CASE
THE TAXPAYER HAD ITS FACTORY AND PLACE OF BUSINESS IN INDIANA AND SOLD
ITS PRODUCTS IN OTHER STATES ON ORDERS TAKEN SUBJECT TO APPROVAL AT THE
HOME OFFICE.  THE COURT THOUGHT THE RISK OF MULTIPLE TAXATION WAS REAL,
BECAUSE OF THE INTERSTATE REACH OF THE TAXPAYER'S BUSINESS ACTIVITIES. 
THE FACT IS THAT THE INCIDENCE OF THAT TAX WAS COMPARABLE TO THE
INCIDENCE OF AN UNAPPORTIONED TAX ON INTERSTATE FREIGHT REVENUES. 

THE PRESENT TAX IS NOT AIMED AT INTERSTATE COMMERCE AND DOES NOT
DISCRIMINATE AGAINST IT.  IT IS NOT IMPOSED AS A LEVY FOR THE PRIVILEGE
OF DOING IT.  IT IS NOT A TAX ON INTERSTATE TRANSPORTATION OR
COMMUNICATION.  IT IS NOT AN EXACTION ON PROPERTY IN ITS INTERSTATE
JOURNEY.  IT IS NOT A TAX ON INTERSTATE SELLING.  THE TAX IS ON THE
PROCEEDS OF THE SALES LESS THE BROKERAGE COMMISSIONS AND THEREFORE DOES
NOT REACH THE REVENUES FROM THE ONLY INTERSTATE ACTIVITIES INVOLVED IN
THESE TRANSACTIONS.  IT IS THEREFORE ESSENTIALLY NO DIFFERENT, SO FAR
AS THE COMMERCE CLAUSE IS CONCERNED, FROM A TAX BY INDIANA ON THE
PROCEEDS OF THE SALE OF A FARM OR OTHER PROPERTY IN NEW YORK WHERE THE
MAILS ARE USED TO AUTHORIZE IT, TO TRANSMIT THE DEED, AND TO RECEIVE
THE PROCEEDS. 

I WOULD ADHERE TO THE PHILOSOPHY OF OUR RECENT CASES  FN1  AND AFFIRM
THE JUDGMENT BELOW. 

FN1  OF WHICH GWIN, WHITE & PRINCE, INC. V. HENNEFORD, SUPRA, WESTERN
LIVE STOCK V. BUREAU OF REVENUE, SUPRA, AND MCGOLDRICK V. BERWIND-WHITE
COAL MINING CO., SUPRA, ARE ILLUSTRATIVE. 
..END :















UNITED STATES V. RUZICKA, 329 U.S. 287 


NO. 54.  ARGUED NOVEMBER 20, 21, 1946.  - DECIDED DECEMBER 16, 1946.  -
152 F.2D 167, REVERSED. 


IN A SUIT BY THE GOVERNMENT UNDER SEC. 8A (6) OF THE AGRICULTURAL
MARKETING AGREEMENT ACT TO ENFORCE AN ORDER ISSUED BY THE SECRETARY OF
AGRICULTURE UNDER SEC. 8C, REQUIRING HANDLERS OF MILK TO PAY MONEY INTO
A PRODUCER-SETTLEMENT FUND, THE DEFENDANTS SOUGHT TO JUSTIFY THEIR
FAILURE TO PAY ON THE GROUND THAT THE DEMAND WAS BASED UPON FAULTY
INSPECTION OF THEIR ACCOUNTS AND IMPROPER TESTS OF THEIR MILK AND MILK
PRODUCTS.  HELD:  THEY CAN NOT ASSERT THIS DEFENSE IN AN ENFORCEMENT
PROCEEDING UNDER SEC. 8A (6) BUT ARE LEFT TO THE ADMINISTRATIVE REMEDY
SPECIFICALLY PROVIDED BY SEC. 8C (15).  STARK V. WICKARD, 321 U.S. 288,
DIFFERENTIATED.  PP. 290-296. 

UNITED STATES V. RUZICKA ET AL., TRADING AS SEELEY DAIRY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

IN A SUIT BY THE GOVERNMENT UNDER SEC. 8A (6) OF THE AGRICULTURAL
MARKETING AGREEMENT ACT OF 1937 AGAINST CERTAIN HANDLERS OF MILK TO
ENFORCE THEIR OBLIGATION TO MAKE PAYMENTS INTO A PRODUCER-SETTLEMENT
FUND, THE DISTRICT COURT GAVE JUDGMENT FOR THE GOVERNMENT.  THE CIRCUIT
COURT OF APPEALS REVERSED.  152 F.2D 167.  THIS COURT GRANTED
CERTIORARI.  327 U.S. 776.  REVERSED, P. 296. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THIS CASE HERE, 327 U.S. 776, BECAUSE IT RAISES QUESTIONS
OF IMPORTANCE IN THE ADMINISTRATION OF THE AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937.  50 STAT. 246, 7 U.S.C. SEC. 601 ET SEQ. THE
GENERAL SCHEME OF THE ACT AND ITS OPERATION HAVE BEEN BEFORE US IN A
SERIES OF CASES.  UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533;
UNITED STATES V. WRIGHTWOOD DAIRY CO., 315 U.S. 110; STARK V. WICKARD,
321 U.S. 288.  OUR IMMEDIATE CONCERN IS WITH THE PROVISIONS OF THE ACT
THAT DISTRIBUTE ENFORCING AUTHORITY BETWEEN THE COURTS AND THE
SECRETARY OF AGRICULTURE.  THESE BECOME RELEVANT TO THE ENFORCEMENT OF
MILK ORDER NO. 41, AN "ORDER REGULATING THE HANDLING OF MILK IN THE
CHICAGO, ILLINOIS, MARKETING AREA," AND MORE PARTICULARLY THE PORTION
OF THAT ELABORATE ORDER WHICH DEFINES THE RIGHTS AND OBLIGATIONS OF
"HANDLERS" OF MILK.  SECTION 941.1(5).  THE ORDER WAS ISSUED UNDER THE
POWERS DELEGATED TO THE SECRETARY OF AGRICULTURE TO EFFECTUATE THE
PURPOSES OF THE ACT.  SECTION 8C OF THE ACT. 

ORDER NO. 41 CLASSIFIES MILK RECEIVED INTO THE CHICAGO AREA ACCORDING
TO ITS USES.  TO MILK IN EACH OF THE FOUR CLASSES THE MARKET
ADMINISTRATOR ASSIGNS A UNIFORM "USE VALUE."  ALL HANDLERS ARE REQUIRED
TO REPORT TO THE MARKET ADMINISTRATOR THE QUANTITY OF MILK PURCHASED
AND PUT TO ITS CLASSIFIED USES.  ON THE BASIS OF THESE REPORTS, THE
ADMINISTRATOR, TAKING INTO ACCOUNT THE TOTAL QUANTITY OF MILK PRODUCED
AND THE AMOUNT DEVOTED TO EACH CLASSIFICATION, AS WELL AS THE BALANCE
IN THE PRODUCER-SETTLEMENT FUND, AND MAKING AUTHORIZED ADJUSTMENTS,
ANNOUNCES MONTHLY A UNIFORM MINIMUM PRICE TO BE PAID BY HANDLERS TO
PRODUCERS.  SINCE A HANDLER'S RECEIPTS FROM THE RE-SALE OF MILK, OR THE
SALE OF MILK PRODUCTS, VARY WITH THE AMOUNT OF THE MILK DISTRIBUTED IN
EACH CLASS, THE UNIFORM PRICE PAID BY HANDLERS WILL CREATE INEQUITIES
UNLESS ADJUSTMENT IS MADE, BASED ON THE COMPARATIVE USE VALUE OF THE
MILK DISTRIBUTED BY A PARTICULAR HANDLER.  THE MECHANISM FOR ADJUSTMENT
IS THE PRODUCER-SETTLEMENT FUND.  HANDLERS ARE REQUIRED TO CONTRIBUTE
TO THIS FUND WHENEVER THE USE VALUE OF THE MILK HANDLED BY THEM DURING
THE MONTH IS GREATER THAN THE NORM ON WHICH THE UNIFORM PRICE IS
BASED.  CONVERSELY, HANDLERS WHOSE MILK DISTRIBUTION IS OF LOW USE
VALUE AND WHOSE FIXED MINIMUM COSTS ARE THEREFORE OUT OF LINE WITH
THEIR RECEIPTS, ARE RECOMPENSED FROM THIS FUND.  EFFECTIVE ENFORCEMENT
OF SUCH A MARKETING SCHEME RESTS ON PROPER ACCOUNTING, RELIABLE REPORTS
AND ALERT INSPECTION.  AT BEST, HOWEVER, ERRORS ARE INEVITABLE, WHICH
MAY CALL FOR PAYMENTS BY HANDLERS INTO THE FUND.  THE RELIANCE OF THE
INDUSTRY UPON THAT FUND MAKES PROMPT PAYMENTS INTO IT IMPERATIVE. 

AN ORDER FOR PAYMENT INTO THE FUND AND ITS RESISTANCE LED TO THIS
LITIGATION.  THE RUZICKAS, HANDLERS OF MILK, FILED WITH THE MARKET
ADMINISTRATOR REQUIRED REPORTS AND RECEIVED FROM HIM A TRANSCRIPT OF
THEIR ACCOUNT WITH THE FUND FOR THE PERIOD IN CONTROVERSY. 
DEFICIENCIES WERE DISCLOSED WHICH THE RUZICKAS REFUSED TO PAY, IN
DISREGARD OF SEC. 941.8(E) AND (G) OF ORDER 41 REQUIRING A HANDLER TO
PAY WITHIN FIVE DAYS "THE AMOUNT SO BILLED."  UNDER SEC. 8(6) OF THE
AGRICULTURAL MARKETING AGREEMENT ACT THIS SUIT WAS BEGUN IN THE
NORTHERN DISTRICT OF ILLINOIS FOR ENFORCEMENT.  THE GOVERNMENT PRAYED
FOR A MANDATORY INJUNCTION COMMANDING COMPLIANCE WITH ORDER 41 BY
PAYMENT OF THE SUMS ALLEGED TO BE DUE TO THE FUND.  IF IT BE RELEVANT,
IT WAS NOT ALLEGED THAT THERE WAS DANGER OF IRREPARABLE LOSS BECAUSE OF
INSOLVENCY OF THE FUND.  BY THEIR ANSWER THE RUZICKAS JUSTIFIED THEIR
FAILURE TO PAY, CHIEFLY ON THE GROUND THAT THE DEMAND WAS BASED UPON
FAULTY INSPECTION OF THEIR ACCOUNTS AND IMPROPER TESTS OF THEIR MILK
AND MILK PRODUCTS.  THE DISTRICT COURT RULED THAT "THE DEFENDANTS
HAVING FAILED TO AVAIL THEMSELVES OF THE ADMINISTRATIVE REMEDY PROVIDED
BY SAID ACT, MAY NOT RAISE SUCH ISSUES OF FACT BEFORE THIS COURT."  ON
THE ISSUE IN THE SUIT THUS LIMITED, THE DISTRICT COURT GRANTED THE
GOVERNMENT'S MOTION FOR JUDGMENT ON THE PLEADINGS.  THE CIRCUIT COURT
OF APPEALS FOR THE SEVENTH CIRCUIT, ONE JUDGE DISSENTING, REVERSED THE
DISTRICT COURT, RULING THAT THE VALIDITY OF THE DEMAND BY THE SECRETARY
OF AGRICULTURE MAY BE CONTESTED IN AN ENFORCEMENT PROCEEDING UNDER SEC.
8A (6).  152 F.2D 167. 

THUS THE QUESTION BEFORE US IS WHETHER A HANDLER MAY RESIST A CLAIM
AGAINST HIM BY THE SECRETARY OF AGRICULTURE, MADE ACCORDING TO THE
PROCEDURE DEFINED IN THE ACT, WITHOUT PREVIOUSLY HAVING SOUGHT TO
CHALLENGE THE CLAIM IN A PROCEEDING, ALSO DEFINED IN THE ACT, BEFORE
THE SECRETARY OF AGRICULTURE.  THE ANSWER IS FOUND ON A FAIR READING OF
THE AGRICULTURAL MARKETING AGREEMENT ACT IN THE CONTEXT OF ITS PURPOSES
AND OF THE SCHEME DESIGNED BY CONGRESS FOR THEIR REALIZATION. 

THE SECTIONS OF THE STATUTE DIRECTLY RELEVANT TO OUR PROBLEM ARE SET
OUT IN THE MARGIN.  FN1 BRIEFLY, THE DISTRICT COURTS OF THE UNITED
STATES ARE "VESTED WITH JURISDICTION SPECIFICALLY TO ENFORCE" ORDERS
ISSUED PURSUANT TO THE ACT.  FN2  THE ACT AUTHORIZES A HANDLER TO
CHALLENGE BEFORE THE SECRETARY OF AGRICULTURE HIS ORDER "OR ANY
OBLIGATION IMPOSED IN CONNECTION THEREWITH" AS "NOT IN ACCORDANCE WITH
LAW," AND TO ASK TO HAVE IT MODIFIED OR TO BE EXEMPTED FROM IT.  WHEN
THE ORDER IS SO CHALLENGED, THE DETERMINATION OF THE SECRETARY OF
AGRICULTURE, AFTER HEARING, IS FINAL BUT ONLY "IF IN ACCORDANCE WITH
LAW."  SECTION 8C (15)(A).  TO TEST WHETHER SUCH RULING IS "IN
ACCORDANCE WITH LAW," THE HANDLER MAY BRING THE SECRETARY'S ACTION FOR
REVIEW BEFORE THE APPROPRIATE DISTRICT COURT.  SECTION 8C (15)(B).  BUT
THE VERY SUBSECTION, (15), WHICH GIVES THE HANDLER ACCESS TO THE
SECRETARY OF AGRICULTURE FOR ADMINISTRATIVE RELIEF AND OPPORTUNITY FOR
JUDICIAL REVIEW OF HIS DETERMINATION, PROVIDES THAT THE PENDENCY OF THE
PROCEDINGS BEFORE THE SECRETARY, OR IN THE DISTRICT COURT TO REVIEW THE
SECRETARY'S RULING, "SHALL NOT IMPEDE, HINDER, OR DELAY THE UNITED
STATES OR THE SECRETARY OF AGRICULTURE FROM OBTAINING RELIEF" UNDER
SEC. 8A (6).  IT IS ONLY WHEN "A FINAL DECREE HAS BEEN RENDERED IN
PROCEEDINGS BETWEEN THE SAME PARTIES, AND COVERING THE SAME SUBJECT
MATTER, INSTITUTED PURSUANT TO THIS SUBSECTION (15)" THAT PROCEEDINGS
BROUGHT FOR ENFORCEMENT UNDER SEC. 8A (6) "SHALL ABATE."  SECTION 8C
(15)(B). 

TO BE SURE, CONGRESS DID NOT SAY IN WORDS THAT, IN A PROCEEDING UNDER
SEC. 8A (6) TO ENFORCE AN ORDER, A HANDLER MAY NOT QUESTION AN
OBLIGATION WHICH FLOWS FROM IT.  BUT MEANING, THOUGH NOT EXPLICITLY
STATED IN WORDS, MAY BE IMBEDDED IN A COHERENT SCHEME.  AND SUCH WE
FIND TO BE THE PROVISIONS TAKEN IN THEIR ENTIRETY, AS A MEANS FOR
ATTAINING THE PURPOSES OF THE ACT WHILE AT THE SAME TIME PROTECTING
ADEQUATELY THE INTERESTS OF INDIVIDUAL HANDLERS. 

THE PROCEDURE DEVISED BY CONGRESS EXPLICITLY GAVE TO AN AGGRIEVED
HANDLER AN APPROPRIATE OPPORTUNITY FOR THE CORRECTION OF ERRORS OR
ABUSES BY THE AGENCY CHARGED WITH THE INTRICATE BUSINESS OF MILK
CONTROL.  IN ADDITION, IF THE SECRETARY FAILS TO MAKE AMENDS CALLED FOR
BY LAW THE HANDLER MAY CHALLENGE THE LEGALITY OF THE SECRETARY'S RULING
IN COURT.  HANDLERS ARE THUS ASSURED OPPORTUNITY TO ESTABLISH CLAIMS OF
GRIEVANCES WHILE STEPS FOR THE PROTECTION OF THE INDUSTRY AS A WHOLE
MAY GO FORWARD.  SECTIONS 8A (6) AND 8C (15) THUS FORM A COMPLEMENTARY
PROCEDURAL SCHEME.  CONTRARIWISE, IT WOULD MAKE FOR DISHARMONY TO
EXTRAPOLATE FROM THESE PROVISIONS OF THE STATUTE THE RIGHT TO CONSIDER
INDEPENDENTLY, IN A PROCEEDING BY THE GOVERNMENT FOR THE ENFORCEMENT OF
THE SECRETARY'S ORDER, QUESTIONS FOR WHICH CONGRESS EXPLICITLY
FURNISHED THE HANDLER AN EXPERT FORUM FOR CONTEST WITH ULTIMATE REVIEW
BY A DISTRICT COURT. 

THE SITUATION BEFORE US INDICATES HOW DISRUPTIVE IT WOULD BE TO ALLOW
ISSUES THAT MAY PROPERLY COME BEFORE A DISTRICT COURT IN A PROCEEDING
UNDER SEC. 8C (15) TO BE OPEN FOR INDEPENDENT ADJUDICATION IN A SUIT
FOR ENFORCEMENT UNDER SEC. 8A (6).  AFTER A PRESUMABLY CAREFUL STUDY BY
THOSE TECHNICALLY EQUIPPED, A PROGRAM WAS DEVISED FOR THE DAIRY FARMERS
IN ONE OF THE LARGE AREAS OF THE COUNTRY.  THE SUCCESS OF THE OPERATION
OF SUCH CONGRESSIONALLY AUTHORIZED MILK CONTROL MUST DEPEND ON THE
EFFICIENCY OF ITS ADMINISTRATION.  PROMPTNESS OF COMPLIANCE BY THOSE
SUBJECT TO THE SCHEME IS THE PRESUPPOSITION OF ORDER NO. 41.  THUS,
DEFINITE MONTHLY DEADLINES ARE FIXED BY THE ORDER FOR EVERY STEP IN THE
PROGRAM.  IN LARGE MEASURE, THE SUCCESS OF THIS SCHEME REVOLVES AROUND
A "PRODUCERS" FUND WHICH IS SOLVENT AND TO WHICH ALL CONTRIBUTE IN
ACCORDANCE WITH A FORMULA EQUITABLY DETERMINED AND OF UNIFORM
APPLICABILITY.  FAILURE BY HANDLERS TO MEET THEIR OBLIGATIONS PROMPTLY
WOULD THREATEN THE WHOLE SCHEME.  EVEN TEMPORARY DEFAULTS BY SOME
HANDLERS MAY WORK UNFAIRNESS TO OTHERS, ENCOURAGE WIDER NON-COMPLIANCE,
AND ENGENDER THOSE SUBTLE FORCES OF DOUBT AND DISTRUST WHICH SO READILY
DISLOCATE DELICATE ECONOMIC ARRANGEMENTS.  TO MAKE THE VITALITY OF THE
WHOLE ARRANGEMENT DEPEND ON THE CONTINGENCIES AND INEVITABLE DELAYS OF
LITIGATION, NO MATTER HOW ALERTLY PURSUED, IS NOT A RESULT TO BE
ATTRIBUTED TO CONGRESS UNLESS SUPPORT FOR IT IS MUCH MORE MANIFEST THAN
WE HERE FIND.  THAT CONGRESS AVOIDED SUCH HAZARDS FOR ITS POLICY IS
PERSUASIVELY INDICATED BY THE PROCEDURE IT DEVISED FOR THE CAREFUL
ADMINISTRATIVE AND JUDICIAL CONSIDERATION OF A HANDLER'S GRIEVANCE.  IT
THEREBY SAFEGUARDED INDIVIDUAL AS WELL AS COLLECTIVE INTERESTS.  IN THE
CASE BEFORE US, ADMINISTRATIVE PROCEEDINGS WERE INSTITUTED BEFORE THE
SECRETARY OF AGRICULTURE AND, APPARENTLY, ARE AWAITING HIS ACTION. 
PRESUMABLY THE SECRETARY OF AGRICULTURE WILL GIVE THE RESPONDENTS THE
RIGHTS TO WHICH CONGRESS SAID THEY WERE ENTITLED.  IF THEY ARE
DISSATISFIED WITH HIS RULING, THEY MAY QUESTION IT IN A DISTRICT
COURT.  THE INTERESTS OF THE ENTIRE INDUSTRY NEED NOT BE DISTURBED IN
ORDER TO DO JUSTICE TO AN INDIVIDUAL CASE.  FN3 

IT IS SUGGESTED THAT CONGRESS DID NOT AUTHORIZE A DISTRICT COURT TO
ENFORCE AN ORDER NOT "IN ACCORDANCE WITH LAW."  THE SHORT ANSWER TO
THIS RATHER DIALECTIC POINT IS THAT WHETHER SUCH AN ORDER IS OR IS NOT
IN ACCORDANCE WITH LAW IS NOT A QUESTION THAT BRINGS ITS OWN IMMEDIATE
ANSWER, OR EVEN AN ANSWER WHICH IT IS THE FAMILIAR, EVERYDAY BUSINESS
OF COURTS TO FIND.  CONGRESS HAS PROVIDED A SPECIAL PROCEDURE FOR
ASCERTAINING WHETHER SUCH AN ORDER IS OR IS NOT IN ACCORDANCE WITH
LAW.  THE QUESTIONS ARE NOT, OR MAY NOT BE, ABSTRACT QUESTIONS OF LAW. 
EVEN WHEN THEY ARE FORMULATED IN CONSTITUTIONAL TERMS, THEY ARE
QUESTIONS OF LAW ARISING OUT OF, OR ENTWINED WITH, FACTORS THAT CALL
FOR UNDERSTANDING OF THE MILK INDUSTRY.  AND SO CONGRESS HAS PROVIDED
THAT THE REMEDY IN THE FIRST INSTANCE MUST BE SOUGHT FROM THE SECRETARY
OF AGRICULTURE.  IT IS ON THE BASIS OF HIS RULING, AND OF THE
ELUCIDATION WHICH HE WOULD PRESUMABLY GIVE TO HIS RULING, THAT RESORT
MAY BE HAD TO THE COURTS.  CONGRESS SEEMS TO HAVE EMPHASIZED THE
DIFFERENT FUNCTIONS IN THE ENFORCEMENT OF THE ACT THAT SEC. 8A AND SEC.
8C SERVE BY EXPLICITLY DIRECTING THAT THE PROCEEDINGS FOR RELIEF
INSTITUTED BY A HANDLER UNDER SEC. 8C SHALL NOT "IMPEDE, HINDER, OR
DELAY" ENFORCEMENT PROCEEDINGS BY THE UNITED STATES UNDER SEC. 8A. 

WE ARE DEALING HERE SOLELY WITH THE RIGHTS OF HANDLERS.  THIS IS NOT
STARK V. WICKARD, 321 U.S. 288.  IN THAT CASE IT WAS CONCLUDED THAT
SINCE CONGRESS HAD PROVIDED NO ADMINISTRATIVE REMEDY FOR A PRODUCER TO
REVIEW THE LEGALITY OF AN ORDER AGAINST HIM, PRESUMABLY THE COURTS WERE
NOT CLOSED TO HIM.  BUT BY SEC. 8C (15) CONGRESS HAS MADE PRECISELY
SUCH PROVISIONS FOR HANDLERS.  AS TO THEM THE PROCEDURAL SCHEME IS
COMPLETE. 

THE AGRICULTURAL MARKETING AGREEMENT ACT IS ONE OF MANY ENACTMENTS BY
WHICH CONGRESS IN REGULATING ECONOMIC ENTERPRISE HAS DIVIDED THE DUTY
OF ENFORCEMENT BETWEEN COURTS AND ADMINISTRATIVE AGENCIES.  BUT THERE
IS THE GREATEST VARIETY IN THE MANNER IN WHICH CONGRESS HAS DISTRIBUTED
THIS RESPONSIBILITY.  THOSE WHO ARE ENTITLED TO SPEAK TELL US THAT THE
DEVELOPMENT OF THE NATURAL SCIENCES HAS OFTEN SUFFERED FROM PREMATURE
GENERALIZATION.  CERTAINLY THE RECENT GROWTH OF ADMINISTRATIVE LAW
COUNSELS AGAINST GENERALIZATIONS REGARDING WHAT IS COMPENDIOUSLY CALLED
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION.  AND SO WE DEEM IT DESIRABLE,
IN A CASE LIKE THIS, TO HUG THE SHORE OF THE PRECISE PROBLEM BEFORE US
IN RELATION TO THE PROVISIONS OF THE PARTICULAR ACT IMMEDIATELY
RELEVANT.  ONE GENERAL OBSERVATION MAY, HOWEVER, BE PERMITTED.  BOTH
COURTS AND ADMINISTRATIVE BODIES ARE LAW-ENFORCING AGENCIES, UTILIZED
BY CONGRESS AS SUCH.  IN CONSTRUING THE ENFORCEMENT PROVISIONS OF
LEGISLATION LIKE THE MARKETING ACT, IT IS IMPORTANT TO REMEMBER THAT
COURTS AND ADMINISTRATIVE AGENCIES ARE COLLABORATIVE "INSTRUMENTALITIES
OF JUSTICE," AND NOT BUSINESS RIVALS.  SEE UNITED STATES V. MORGAN, 307
U.S. 183, 191; FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE
BROADCASTING CO., 309 U.S. 134, 141 ET SEQ. AND SO WE ARE NOT CALLED
UPON TO DECIDE WHAT POWERS INHERE IN A COURT OF EQUITY, EXERCISING DUE
JUDICIAL DISCRETION, EVEN IN A SUIT SUCH AS WAS HERE BROUGHT BY THE
UNITED STATES FOR THE ENFORCEMENT OF AN ORDER UNDER SEC. 8A.  WE SAY
THIS BECAUSE IT APPEARS THAT AT A STAGE IN THE PROCEEDINGS IN THE
DISTRICT COURT A MOTION FOR A STAY, PENDING DISPOSITION OF THE PETITION
BY THE RUZICKAS BEFORE THE SECRETARY OF AGRICULTURE, WAS MADE BY THE
RESPONDENTS.  WITH THE COURT'S LEAVE, THIS MOTION WAS SUBSEQUENTLY
WITHDRAWN.  THE POWER OF THE DISTRICT COURT TO HAVE ACTED ON IT IS
THEREFORE NOT BEFORE US. COMPARE SCRIPPS-HOWARD RADIO V. COMM'N, 316
U.S. 4; HECHT CO. V. BOWLES, 321 U.S. 321.  JUDGMENT REVERSED. 

FN1  "8A(6)  THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE
HEREBY VESTED WITH JURISDICTION SPECIFICALLY TO ENFORCE, AND TO PREVENT
AND RESTRAIN ANY PERSON FROM VIOLATING ANY ORDER, REGULATION, OR
AGREEMENT, HERETOFORE OR HEREAFTER MADE OR ISSUED PURSUANT TO THIS
TITLE, IN ANY PROCEEDING NOW PENDING OR HEREAFTER BROUGHT IN SAID
COURTS. 

"8C(15)(A)  ANY HANDLER SUBJECT TO AN ORDER MAY FILE A WRITTEN
PETITION WITH THE SECRETARY OF AGRICULTURE, STATING THAT ANY SUCH ORDER
OR ANY PROVISION OF ANY SUCH ORDER OR ANY OBLIGATION IMPOSED IN
CONNECTION THEREWITH IS NOT IN ACCORDANCE WITH LAW AND PRAYING FOR A
MODIFICATION THEREOF OR TO BE EXEMPTED THEREFROM.  HE SHALL THEREUPON
BE GIVEN AN OPPORTUNITY FOR A HEARING UPON SUCH PETITION, IN ACCORDANCE
WITH REGULATIONS MADE BY THE SECRETARY OF AGRICULTURE, WITH THE
APPROVAL OF THE PRESIDENT.  AFTER SUCH HEARING, THE SECRETARY SHALL
MAKE A RULING UPON THE PRAYER OF SUCH PETITION WHICH SHALL BE FINAL, IF
IN ACCORDANCE WITH LAW. 

"8C(15)(B)  THE DISTRICT COURTS OF THE UNITED STATES (INCLUDING THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA) IN
ANY DISTRICT IN WHICH SUCH HANDLER IS AN INHABITANT, OR HAS HIS
PRINCIPAL PLACE OF BUSINESS, ARE HEREBY VESTED WITH JURISDICTION IN
EQUITY TO REVIEW SUCH RULING, PROVIDED A BILL IN EQUITY FOR THAT
PURPOSE IS FILED WITHIN TWENTY DAYS FROM THE DATE OF THE ENTRY OF SUCH
RULING.  SERVICE OF PROCESS IN SUCH PROCEEDINGS MAY BE HAD UPON THE
SECRETARY BY DELIVERING TO HIM A COPY OF THE BILL OF COMPLAINT.  IF THE
COURT DETERMINES THAT SUCH RULING IS NOT IN ACCORDANCE WITH LAW, IT
SHALL REMAND SUCH PROCEEDINGS TO THE SECRETARY WITH DIRECTIONS EITHER
(1) TO MAKE SUCH RULING AS THE COURT SHALL DETERMINE TO BE IN
ACCORDANCE WITH LAW, OR (2) TO TAKE SUCH FURTHER PROCEEDINGS AS, IN ITS
OPINION, THE LAW REQUIRES.  THE PENDENCY OF PROCEEDINGS INSTITUTED
PURSUANT TO THIS SUBSECTION (15) SHALL NOT IMPEDE, HINDER, OR DELAY THE
UNITED STATES OR THE SECRETARY OF AGRICULTURE FROM OBTAINING RELIEF
PURSUANT TO SECTION 8A (6) OF THIS TITLE.  ANY PROCEEDINGS BROUGHT
PURSUANT TO SECTION 8A (6) OF THIS TITLE (EXCEPT WHERE BROUGHT BY WAY
OF COUNTERCLAIM IN PROCEEDINGS INSTITUTED PURSUANT TO THIS SUBSECTION
(15)) SHALL ABATE WHENEVER A FINAL DECREE HAS BEEN RENDERED IN
PROCEEDINGS BETWEEN THE SAME PARTIES, AND COVERING THE SAME SUBJECT
MATTER, INSTITUTED PURSUANT TO THIS SUBSECTION (15)." 

FN2  SECTION 8A (8) IS ALSO INVOKED BY PETITIONER.  BUT THAT SECTION
ADDS TO THE GOVERNMENT'S REMEDIES.  IT IMPLIES NO JUDICIAL REVIEW IN
FAVOR OF HANDLERS. 

FN3  "DURING THE PERIOD WHILE ANY SUCH PETITION IS PENDING BEFORE THE
SECRETARY AND UNTIL NOTICE OF THE SECRETARY'S RULING IS GIVEN TO THE
PETITIONER, THE PENALTIES IMPOSED BY THE ACT FOR VIOLATION OF AN ORDER
CANNOT BE IMPOSED UPON THE PETITIONER IF THE COURT FINDS THAT THE
PETITION WAS FILED IN GOOD FAITH AND NOT FOR DELAY.  THE SECRETARY MAY,
NEVERTHELESS, DURING THIS PERIOD PROCEED TO OBTAIN AN INJUNCTION
AGAINST THE PETITIONER PURSUANT TO SECTION 8A (6) OF THE AGRICULTURAL
ADJUSTMENT ACT....  IT IS BELIEVED THAT THESE PROVISIONS ESTABLISH AN
EQUITABLE AND EXPEDITIOUS PROCEDURE FOR TESTING THE VALIDITY OF ORDERS,
WITHOUT HAMPERING THE GOVERNMENT'S POWER TO ENFORCE COMPLIANCE WITH
THEIR TERMS."  S. REP. NO. 1011, 74TH CONG., 1ST SESS., P. 14. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 
..END :

















ROTHENSIES V. ELECTRIC BATTERY CO., 329 U.S. 296 


NO. 48.  ARGUED NOVEMBER 15, 18, 1946.  - DECIDED DECEMBER 16, 1946.  -
152 F.2D 521, REVERSED. 


FROM APRIL 1919 TO APRIL 1926, A TAXPAYER PAID EXCISE TAXES ON CERTAIN
SALES AND DEDUCTED THE TAX FROM INCOME BEFORE CALCULATION OF ITS INCOME
TAX.  IN JULY 1926, IT FILED A CLAIM FOR REFUND OF THE EXCISE TAXES
PAID BETWEEN 1922 AND 1926(REFUND OF THOSE PAID EARLIER BEING BARRED BY
THE STATUTE OF LIMITATIONS), BROUGHT SUIT, OBTAINED JUDGMENT, AND
RECEIVED SETTLEMENT IN 1935.  THE COMMISSIONER TREATED THE REFUND AS
INCOME FOR 1935 AND ASSESSED ADDITIONAL INCOME AND EXCESS PROFITS
TAXES.  THE TAXPAYER PAID THE DEFICIENCY SO ASSESSED AND SUED FOR A
REFUND, CONTENDING THAT THE REFUND OF THE EXCISE TAXES WAS NOT INCOME,
BUT THAT, IF IT WERE SO CONSIDERED, THE TAXPAYER SHOULD BE PERMITTED,
AS AGAINST THE ADDITIONAL TAX CAUSED BY ITS INCLUSION, TO RECOUP THE
AMOUNT OF THE BARRED EXCISE TAXES WHICH IT HAD PAID BETWEEN 1919 AND
1922.  HELD: 

1.  THE REFUND OF THE EXCISE TAXES WAS PROPERLY ASSESSED AS INCOME
FOR 1935.  P. 298. 

2.  REFUND OF THE EXCISE TAXES IMPROPERLY PAID BETWEEN 1919 AND 1922
BEING BARRED BY THE STATUTE OF LIMITATIONS, THEY MAY NOT BE RECOUPED IN
THIS PROCEEDING AGAINST THE INCOME TAX LIABILITY FOR 1935.  PP. 299
303. 

(A)  RECOUPMENT IS IN THE NATURE OF A DEFENSE ARISING OUT OF SOME
FEATURE OF THE TRANSACTION UPON WHICH A PLAINTIFF'S ACTION IS
GROUNDED.  IT DOES NOT ALLOW ONE TRANSACTION TO BE OFFSET AGAINST
ANOTHER, BUT ONLY PERMITS A TRANSACTION WHICH IS MADE THE SUBJECT OF A
SUIT BY A PLAINTIFF TO BE EXAMINED IN ALL ITS ASPECTS, AND JUDGMENT TO
BE RENDERED THAT DOES JUSTICE IN VIEW OF THE ONE TRANSACTION AS A
WHOLE.  P. 299. 

(B)  BULL V. UNITED STATES, 295 U.S. 247; STONE V. WHITE, 301 U.S.
532, DISTINGUISHED.  P. 300. 

(C)  TO GIVE THE DOCTRINE OF RECOUPMENT THE BREADTH HERE CLAIMED
WOULD SERIOUSLY UNDERMINE THE STATUTE OF LIMITATIONS IN TAX MATTERS. 
P. 302. 

ROTHENSIES, COLLECTOR OF INTERNAL REVENUE, V. ELECTRIC STORAGE BATTERY
CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

A TAXPAYER SUED TO RECOVER INCOME AND EXCESS PROFITS TAXES ASSESSED
AND PAID ON A REFUND IN 1935 OF EXCISE TAXES ERRONEOUSLY PAID BETWEEN
1922 AND 1926, CLAIMING THAT THE REFUND WAS NOT INCOME AND THAT, IF IT
WERE, HE SHOULD BE PERMITTED TO RECOUP OTHER EXCISE TAXES ERRONEOUSLY
PAID BETWEEN 1919 AND 1922.  THE DISTRICT COURT GAVE JUDGMENT FOR THE
TAXPAYER.  57 F.SUPP.  731.  THE CIRCUIT COURT OF APPEALS AFFIRMED. 
152 F.2D 521.  THIS COURT GRANTED CERTIORARI.  327 U.S. 774.  REVERSED,
P. 303. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE REPRESENTS AN EFFORT, THUS FAR SUCCESSFUL, TO OBTAIN
ADVANTAGE BY WAY OF RECOUPMENT OF A CLAIM FOR TAX REFUND LONG SINCE
BARRED BY THE STATUTE OF LIMITATIONS.  THE FACTS OF THIS SINGULAR
SITUATION ARE NOT IN DISPUTE.  FROM APRIL 1919 TO APRIL 1926 THE
ELECTRIC STORAGE BATTERY COMPANY PAID EXCISE TAXES ON THE SALE OF
STORAGE BATTERIES IN THE BELIEF, SHARED BY THE GOVERNMENT, THAT SUCH
SALES WERE SUBJECT TO TAX.  IN JULY OF 1926 THE COMPANY ASSERTED
OTHERWISE AND FILED A REFUND CLAIM.  IT ASKED REFUND ONLY OF THAT PART
OF THE TAXES WHICH IT HAD PAID BETWEEN 1922 AND 1926.  REFUND OF THE
TAXES PAID EARLIER WHICH THE COMPANY NOW SEEKS TO RECOUP WAS THEN
BARRED BY THE STATUTE OF LIMITATIONS AND NO CLAIM EVER HAS BEEN FILED
FOR THEIR REFUND AND NO ACTION EVER WAS BEGUN FOR THEIR RECOVERY.  SUIT
WAS BROUGHT, HOWEVER, AGAINST THE COLLECTOR FOR REFUND OF THE TAXES
PAID AFTER JULY 1922; JUDGMENT THEREFOR WAS OBTAINED IN THE DISTRICT
COURT AND AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  THE GOVERNMENT
FINALLY SETTLED BY REFUND OF $1,395,515.35, OF WHICH $825,151.52
REPRESENTED TAX AND THE BALANCE INTEREST. 

DURING THE YEARS THAT THE REFUNDED EXCISE TAX WAS BEING COLLECTED,
THE TAXPAYER DEDUCTED IT FROM INCOME BEFORE CALCULATION OF ITS INCOME
TAX, THEREBY DERIVING SUBSTANTIAL BENEFITS.  THE COMMISSIONER,
THEREFORE, TREATED THE REFUND AS INCOME FOR 1935, THE YEAR IN WHICH IT
WAS RECEIVED, AND BECAUSE OF IT ASSESSED ADDITIONAL INCOME AND EXCESS
PROFITS TAXES WHICH WITH INTEREST THEREON TOTALED $229,805.34.  THE
TAXPAYER PAID THE DEFICIENCY, FILED CLAIM FOR REFUND, AND AFTER IT WAS
REJECTED SUED THE COLLECTOR.  IT CONTENDED THAT THE REFUND FROM THE
GOVERNMENT WAS NOT INCOME TO THE TAXPAYER BUT THAT IF IT WERE SO
CONSIDERED TAXPAYER SHOULD BE PERMITTED, AS AGAINST THE ADDITIONAL TAX
CAUSED BY ITS INCLUSION, TO RECOUP THE AMOUNT OF THE BARRED EXCISE
TAXES WHICH IT HAD PAID BETWEEN 1919 AND 1922.  BOTH COURTS BELOW
CORRECTLY HELD THAT THE REFUND WAS PROPERLY ASSESSED AS INCOME.  CF.
SECURITY FLOUR MILLS CO. V. COMMISSIONER, 321 U.S. 281; FREIHOFER
BAKING CO. V. COMMISSIONER, 151 F.2D 383.  BOTH HAVE HELD, HOWEVER,
THAT THE INCOME TAX LIABILITY FOR 1935 SHOULD BE EXTINGUISHED BY
RECOUPMENT OF THE 1919 TO 1922 EXCISE TAXES.  THE GRAVITY OF THIS
HOLDING TO THE ADMINISTRATION OF THE TAX LAWS LED US TO GRANT
CERTIORARI.  ROTHENSIES V. ELECTRIC STORAGE BATTERY CO., 327 U.S. 774. 

IT IS NOT CONTENDED THAT THERE IS ANY STATUTORY WARRANT FOR ALLOWING
BARRED TAX REFUND CLAIMS BY WAY OF RECOUPMENT OR OTHERWISE.  FN1
AUTHORITY FOR IT IS SAID TO BE FOUND IN CASE LAW AND TAXPAYER RELIES
CHIEFLY ON TWO DECISIONS OF THIS COURT, BULL V. UNITED STATES, 295 U.S.
247, AND STONE V. WHITE, 301 U.S. 532.  THE ESSENCE OF THE DOCTRINE OF
RECOUPMENT IS STATED IN THE BULL CASE:  "RECOUPMENT IS IN THE NATURE OF
A DEFENSE ARISING OUT OF SOME FEATURE OF THE TRANSACTION UPON WHICH THE
PLAINTIFF'S ACTION IS GROUNDED."  295 U.S. 247, 262.  IT HAS NEVER BEEN
THOUGHT TO ALLOW ONE TRANSACTION TO BE OFFSET AGAINST ANOTHER, BUT ONLY
TO PERMIT A TRANSACTION WHICH IS MADE THE SUBJECT OF SUIT BY A
PLAINTIFF TO BE EXAMINED IN ALL ITS ASPECTS, AND JUDGMENT TO BE
RENDERED THAT DOES JUSTICE IN VIEW OF THE ONE TRANSACTION AS A WHOLE. 

THE APPLICATION OF THIS GENERAL PRINCIPLE TO CONCRETE CASES IN BOTH
OF THE CITED DECISIONS IS INSTRUCTIVE AS TO THE LIMITED SCOPE GIVEN TO
RECOUPMENT IN TAX LITIGATION.  IN BOTH CASES A SINGLE TRANSACTION
CONSTITUTED THE TAXABLE EVENT CLAIMED UPON AND THE ONE CONSIDERED IN
RECOUPMENT.  IN BOTH, THE SINGLE TRANSACTION OR TAXABLE EVENT HAD BEEN
SUBJECTED TO TWO TAXES ON INCONSISTENT LEGAL THEORIES, AND WHAT WAS
MISTAKENLY PAID WAS RECOUPED AGAINST WHAT WAS CORRECTLY DUE.  IN BULL
V. UNITED STATES, THE ONE TAXABLE EVENT WAS RECEIPT BY EXECUTORS OF A
SUM OF MONEY.  AN EFFORT WAS MADE TO TAX IT TWICE - ONCE UNDER THE
INCOME TAX ACT AS INCOME TO THE ESTATE AFTER DECEDENT'S DEATH AND ONCE
UNDER THE ESTATE TAX ACT AS PART OF DECEDENT'S GROSS ESTATE.  THIS
COURT HELD THAT THE AMOUNT OF THE TAX COLLECTED ON A WRONG THEORY
SHOULD BE ALLOWED IN RECOUPMENT AGAINST AN ASSESSMENT UNDER THE CORRECT
THEORY.  FN2  IN STONE V. WHITE, LIKEWISE, BOTH THE CLAIM AND
RECOUPMENT INVOLVED A SINGLE TAXABLE EVENT, WHICH WAS RECEIPT BY AN
ESTATE OF INCOME FOR A PERIOD.  THE TRUSTEES HAD PAID THE INCOME TAX ON
IT BUT THIS COURT HELD IT WAS TAXABLE TO THE BENEFICIARY.  ASSESSMENT
AGAINST THE BENEFICIARY HAD MEANWHILE BECOME BARRED.  THEN THE TRUSTEES
SUED FOR A REFUND, WHICH WOULD INURE TO THE BENEFICIARY.  THE COURT
TREATED THE TRANSACTION AS A WHOLE AND ALLOWED RECOUPMENT OF THE TAX
WHICH THE BENEFICIARY SHOULD HAVE PAID AGAINST THE TAX THE GOVERNMENT
SHOULD NOT HAVE COLLECTED FROM THE TRUSTEES.  WHATEVER MAY HAVE BEEN
SAID INDICATING A BROADER SCOPE TO THE DOCTRINE OF RECOUPMENT, THESE
FACTS ARE THE ONLY ONES IN WHICH IT HAS BEEN APPLIED BY THIS COURT IN
TAX CASES. 

THE GOVERNMENT HAS ARGUED THAT ALLOWANCE OF THE CLAIM OF RECOUPMENT
IN VOLVED HERE WOULD EXPAND THE HOLDING IN THE BULL CASE.  THE CIRCUIT
COURT OF APPEALS AGREED THAT IN THE BULL CASE "THE MAIN CLAIM AND
RECOUPMENT CLAIM WERE MORE CLOSELY CONNECTED THAN THEY ARE HERE." 
ELECTRIC STORAGE BATTERY CO. V. ROTHENSIES, 152 F.2D 521, 524.  BUT THE
COURT NEVERTHELESS ALLOWED THE CLAIM BECAUSE IT CONSIDERED THAT THIS
COURT HAD INTRODUCED THE DOCTRINE OF RECOUPMENT INTO TAX LAW AND THAT
IT WAS "BASED ON CONCEPTS OF FAIRNESS."  152 F.2D 521, 524.  IT SAID IT
SAW NO REASON FOR NARROWLY CONSTRUING THE REQUIREMENT THAT BOTH CLAIMS
ORIGINATE IN THE SAME TRANSACTION.  WE THINK THIS MISAPPREHENDS THE
LIMITATIONS ON THE DOCTRINE OF RECOUPMENT AS APPLIED TO TAX LAW AND IT
LEADS US TO STATE MORE FULLY REASONS FOR DECLINING TO EXPAND THE
DOCTRINE BEYOND THE FACTS OF THE CITED CASES. 

IT PROBABLY WOULD BE ALL BUT INTOLERABLE, AT LEAST CONGRESS HAS
REGARDED IT AS ILL-ADVISED, TO HAVE AN INCOME TAX SYSTEM UNDER WHICH
THERE NEVER WOULD COME A DAY OF FINAL SETTLEMENT AND WHICH REQUIRED
BOTH THE TAXPAYER AND THE GOVERNMENT TO STAND READY FOREVER AND A DAY
TO PRODUCE VOUCHERS, PROVE EVENTS, ESTABLISH VALUES AND RECALL DETAILS
OF ALL THAT GOES INTO AN INCOME TAX CONTEST.  HENCE, A STATUTE OF
LIMITATION IS AN ALMOST INDISPENSABLE ELEMENT OF FAIRNESS AS WELL AS OF
PRACTICAL ADMINISTRATION OF AN INCOME TAX POLICY. 

WE HAVE HAD RECENT OCCASION TO POINT OUT THE REASON AND THE CHARACTER
OF SUCH LIMITATION STATUTES.  "STATUTES OF LIMITATION, LIKE THE
EQUITABLE DOCTRINE OF LACHES, IN THEIR CONCLUSIVE EFFECTS ARE DESIGNED
TO PROMOTE JUSTICE BY PREVENTING SURPRISES THROUGH THE REVIVAL OF
CLAIMS THAT HAVE BEEN ALLOWED TO SLUMBER UNTIL EVIDENCE HAS BEEN LOST,
MEMORIES HAVE FADED, AND WITNESSES HAVE DISAPPEARED.  THE THEORY IS
THAT EVEN IF ONE HAS A JUST CLAIM IT IS UNJUST NOT TO PUT THE ADVERSARY
ON NOTICE TO DEFEND WITHIN THE PERIOD OF LIMITATION AND THAT THE RIGHT
TO BE FREE OF STALE CLAIMS IN TIME COMES TO PREVAIL OVER THE RIGHT TO
PROSECUTE THEM."  ORDER OF RAILROAD TELEGRAPHERS V. RAILWAY EXPRESS
AGENCY, 321 U.S. 342, 348-9.  "THEY ARE BY DEFINITION ARBITRARY, AND
THEIR OPERATION DOES NOT DISCRIMINATE BETWEEN THE JUST AND THE UNJUST
CLAIM, OR THE VOIDABLE (AVOIDABLE) AND UNAVOIDABLE DELAY.  THEY HAVE
COME INTO THE LAW NOT THROUGH THE JUDICIAL PROCESS BUT THROUGH
LEGISLATION."  CHASE SECURITIES CORP. V. DONALDSON, 325 U.S. 304, 314. 

AS STATUTES OF LIMITATION ARE APPLIED IN THE FIELD OF TAXATION, THE
TAXPAYER SOMETIMES GETS ADVANTAGES AND AT OTHER TIMES THE GOVERNMENT
GETS THEM.  BOTH HARDSHIPS TO THE TAXPAYERS AND LOSSES TO THE REVENUES
MAY BE POINTED OUT.  FN3  THEY TEMPT THE EQUITY-MINDED JUDGE TO SEEK
FOR WAYS OF RELIEF IN INDIVIDUAL CASES. 

BUT IF WE SHOULD APPROVE A DOCTRINE OF RECOUPMENT OF THE BREADTH HERE
APPLIED WE WOULD SERIOUSLY UNDERMINE THE STATUTE OF LIMITATIONS IN TAX
MATTERS.  IN MANY, IF NOT MOST, CASES OF ASSERTED DEFICIENCY THE ITEMS
WHICH OCCASION IT RELATE TO PAST YEARS CLOSED BY STATUTE, AT LEAST AS
CLOSELY AS DOES THE ITEM INVOLVED HERE.  CF. HALL V. UNITED STATES, 43
F.SUPP.  130.  THE SAME IS TRUE OF ITEMS WHICH FORM THE BASIS OF REFUND
CLAIMS.  EVERY ASSESSMENT OF DEFICIENCY AND EACH CLAIM FOR REFUND WOULD
INVITE A SEARCH OF THE TAXPAYER'S ENTIRE TAX HISTORY FOR ITEMS TO
RECOUP.  THIS CASE PROVIDES EVIDENCE OF THE EXTENT TO WHICH THIS WOULD
GO.  WHEN THIS SUIT WAS BROUGHT IN 1943, THE CLAIM PLEADED AS A
RECOUPMENT WAS FOR TAXES COLLECTED OVER TWENTY YEARS BEFORE AND FOR
OVER SIXTEEN YEARS BARRED BY THE STATUTE.  THAT CLAIMS DEAD SO LONG CAN
BE RESURRECTED UNDER THIS DOCTRINE, IS ENOUGH TO SHOW ITS MENACE TO THE
STATUTE OF LIMITATIONS - AT LEAST AS TO THOSE TAXPAYERS WHOSE AFFAIRS
BY ACCIDENT OR DESIGN TAKE SUCH SHAPE THAT THEY CAN AVAIL THEMSELVES OF
RECOUPMENT REMEDIES.  MOREOVER, WE HAVE HELD THAT THE TAX COURT HAS NO
JURISDICTION TO CONSIDER RECOUPMENT.  COMMISSIONER V. GOOCH MILLING &
ELEVATOR CO., 320 U.S. 418.  HENCE, THE AVAILABILITY OF THE REMEDY
WOULD DEPEND ON DIVERTING THE LITIGATION TO THE DISTRICT COURTS. 

WE CANNOT APPROVE SUCH ENCROACHMENTS ON THE POLICY OF THE STATUTE OUT
OF CONSIDERATION FOR A TAXPAYER WHO FOR MANY YEARS FAILED TO FILE OR
PROSECUTE ITS REFUND CLAIM.  IF THERE ARE TO BE EXCEPTIONS TO THE
STATUTE OF LIMITATIONS, IT IS FOR CONGRESS RATHER THAN FOR THE COURTS
TO CREATE AND LIMIT THEM. 

THE JUDGMENT BELOW IS REVERSED. 

FN1 INDEED, THE APPLICABLE PROVISIONS OF THE REVENUE ACT OF 1928 SEEM
TO DIRECT A RESULT OPPOSITE TO THAT ASKED BY RESPONDENT.  SECTION 608
PROVIDES THAT "A REFUND OF ANY PORTION OF AN INTERNAL-REVENUE TAX (OR
ANY INTEREST, PENALTY, ADDITIONAL AMOUNT, OR ADDITION TO SUCH TAX) MADE
AFTER THE ENACTMENT OF THIS ACT, SHALL BE CONSIDERED ERRONEOUS - (A) IF
MADE AFTER THE EXPIRATION OF THE PERIOD OF LIMITATION FOR FILING CLAIM
THEREFOR, UNLESS WITHIN SUCH PERIOD CLAIM WAS FILED; ..."  SECTION
609(B) PROVIDES, "A CREDIT OF AN OVERPAYMENT IN RESPECT OF ANY TAX
SHALL BE VOID IF A REFUND OF SUCH OVERPAYMENT WOULD BE CONSIDERED
ERRONEOUS UNDER SECTION 608."  45 STAT. 874, 875.  AND CF. MCEACHERN V.
ROSE, 302 U.S. 56. 

FN2  BUT THE COURT EMPHASIZED THAT REFUND OF THE INCORRECT TAX WAS
NOT BARRED BY THE STATUTE AT THE TIME THE GOVERNMENT PROCEEDED FOR
COLLECTION OF THE CORRECT TAX. 

FN3  IN AMERICAN LIGHT & TRACTION CO. V. HARRISON, 142 F.2D 639, THE
COURT DID NOT ALLOW RECOUPMENT TO THE GOVERNMENT.  BUT, JUDICIOUSLY, IT
SAID, "ALTHOUGH HERE A HARDSHIP ON THE GOVERNMENT RESULTS FROM THE
TAXPAYER'S INCONSISTENCY, THE CORRELATIVE PROVISIONS OF THIS SAME
STATUTE WILL, IN THE CONVERSE OF THE INSTANT SITUATION, WORK AN EQUAL
HARDSHIP ON THE TAXPAYER."  142 F.2D 639, 643.  WHETHER OR NOT THE
STATUTE, SECS. 608 AND 609 OF THE REVENUE ACT OF 1928, BE TAKEN TO
COMPEL THE CONCLUSION WE REACH IN THIS CASE, THE COURT'S RECOGNITION
THAT BOTH PARTIES TO TAXATION ARE AFFECTED IMPARTIALLY, THOUGH PERHAPS
HARSHLY, BY POLICY OF REPOSE HAS APPLICATION HERE.  IT MAY EASILY BE
OVERLOOKED, WHEN THE UNFAIRNESS OF THE GOVERNMENT'S RETAINING
INCORRECTLY COLLECTED MONIES OF RESPONDENT IS STRESSED, THAT THE
STATUTE OF LIMITATIONS IS PRIMARILY AN INSTRUMENT OF FAIRNESS. 

MR. JUSTICE MURPHY IS OF THE OPINION, IN WHICH MR. JUSTICE BLACK AND
MR. JUSTICE RUTLEDGE JOIN, THAT THE JUDGMENT BELOW SHOULD BE AFFIRMED. 
HE BELIEVES THAT THE CLAIMS FOR REFUND OF THE ILLEGAL ASSESSMENT
EXACTED FROM 1919 TO 1922 ARISE OUT OF THE SAME SUBJECT MATTER AS WAS
INVOLVED IN THE GOVERNMENT'S DEMAND FOR ADDITIONAL TAXES FOR 1935,
THEREBY MAKING APPLICABLE THE RULE OF BULL V. UNITED STATES, 295 U.S.
247. 
..END :




ALMA MOTOR CO. V. TIMKEN CO., 329 U.S. 129 


NO. 11.  ARGUED APRIL 25, 26, 1945.  REARGUED OCTOBER 24, 25, 1946.  -
DECIDED DECEMBER 9, 1946.  - 144 F.2D 714, JUDGMENT VACATED AND CASE
REMANDED. 


1.  THIS COURT GRANTED CERTIORARI ON A PETITION RAISING A QUESTION AS
TO THE CONSTITUTIONALITY OF THE ROYALTY ADJUSTMENT ACT OF OCTOBER 31,
1942, 56 STAT. 1013, AND AN ORDER OF THE WAR DEPARTMENT ISSUED
THEREUNDER.  AFTER HEARING ARGUMENTS AND SETTING THE CASE FOR
REARGUMENT, IT FOUND THAT, IN ADDITION TO THE CONSTITUTIONAL QUESTION,
THE CIRCUIT COURT OF APPEALS HAD BEFORE IT, BUT DID NOT PASS UPON, A
QUESTION AS TO THE APPLICABILITY OF THE ACT.  HELD:  THE JUDGMENT OF
THE CIRCUIT COURT OF APPEALS IS VACATED AND THE CASE IS REMANDED TO IT
FOR DECISION OF ANY NON-CONSTITUTIONAL ISSUES MATERIAL TO THE APPEAL. 
PP. 132, 136, 142. 

(A)  NEITHER THIS COURT NOR THE LOWER COURTS SHOULD PASS ON THE
CONSTITUTIONALITY OF AN ACT OF CONGRESS UNLESS SUCH ADJUDICATION IS
UNAVOIDABLE, EVEN THOUGH THE QUESTION IS PROPERLY PRESENTED BY THE
RECORD.  P. 136. 

(B)  THE CIRCUIT COURT OF APPEALS SHOULD HAVE PASSED ON THE
APPLICABILITY OF THE ACT AND THE ORDER BEFORE CONSIDERING THEIR
CONSTITUTIONALITY, SINCE A DECISION ON THEIR APPLICABILITY MIGHT HAVE
MADE UNNECESSARY ANY CONSIDERATION OF THEIR CONSTITUTIONALITY.  P.
137. 

(C)  THAT MUCH TIME HAS BEEN WASTED BY THE EARLIER FAILURE OF THE
PARTIES TO INDICATE, OR THE CIRCUIT COURT OF APPEALS OR THIS COURT TO
SEE, THE COURSE WHICH SHOULD HAVE BEEN FOLLOWED IS NO REASON TO
CONTINUE ON THE WRONG COURSE OR TO DISREGARD THE TRADITIONAL POLICY OF
AVOIDING CONSTITUTIONAL QUESTIONS.  P. 142. 

2.  THE PRIMARY PURPOSE OF THE ROYALTY ADJUSTMENT ACT WAS TO REDUCE
ROYALTIES FOR WHICH THE UNITED STATES WAS ULTIMATELY LIABLE ON
INVENTIONS MANUFACTURED FOR IT BY A LICENSEE, FROM PRE-WAR RATES TO
RATES APPROPRIATE TO THE VOLUME OF PRODUCTION IN WARTIME.  P. 134. 

3.  THE APPLICABILITY OF THE ROYALTY ADJUSTMENT ACT AND THE
JURISDICTION OF THE COURT OF CLAIMS THEREUNDER TURN, NOT ON A CLAIM OF
COVERAGE, BUT ON ACTUAL COVERAGE BY A PATENT AND LICENSE OF AN
INVENTION MANUFACTURED FOR THE UNITED STATES AND UPON A CONDITION
SUBSEQUENT - THE ISSUANCE OF NOTICE THAT THE DEPARTMENT HEAD BELIEVES
THE STIPULATED ROYALTIES TO BE UNREASONABLE.  SMITHERS V. SMITH, 204
U.S. 632, AND BELL V. HOOD, 327 U.S. 678, DISTINGUISHED.  PP. 137-139. 

4.  THE FACT THAT A SUIT IN A DISTRICT COURT INVOLVING THE QUESTION
WHETHER CERTAIN PRODUCTS MANUFACTURED FOR THE UNITED STATES IN WARTIME
WERE COVERED BY A PATENT AND LICENSE MIGHT HAVE BEEN DISMISSED AND THE
OWNER OF THE PATENT RELEGATED TO THE COURT OF CLAIMS UNDER THE ACT OF
JUNE 25, 1910, AS AMENDED, 35 U.S.C. SEC. 68, IF THE ROYALTY ADJUSTMENT
ACT WERE INAPPLICABLE BECAUSE THE PRODUCTS WERE NOT COVERED BY THE
LICENSE, WAS NO REASON FOR THE CIRCUIT COURT OF APPEALS TO FAIL TO PASS
ON THE QUESTION OF COVERAGE; SINCE THE CONSTITUTIONALITY OF 35 U.S.C.
SEC. 68 ALREADY HAS BEEN SUSTAINED BY THIS COURT AND A DISMISSAL UNDER
THAT SECTION WOULD NOT HAVE REQUIRED A DECISION ON ANY CONSTITUTIONAL
QUESTION.  PP. 139, 140. 

5.  SECTION 2 OF THE ROYALTY ADJUSTMENT ACT, PROVIDING THAT, IF THE
LICENSOR SUES IN THE COURT OF CLAIMS, THE UNITED STATES MAY AVAIL
ITSELF OF ALL DEFENSES THAT MIGHT BE PLEADED BY A DEFENDANT IN AN
INFRINGEMENT SUIT, DOES NOT REQUIRE THAT ALL SUITS INVOLVING LICENSES
UNDER THE ACT AND PRESENTING QUESTIONS OF COVERAGE OR VALIDITY BE TRIED
IN THE COURT OF CLAIMS.  PP. 140, 141. 

6.  NEITHER PARTY HAVING APPEALED FROM THE PART OF THE JUDGMENT OF
THE DISTRICT COURT HOLDING THAT SOME OF THE PRODUCTS WERE COVERED BY
THE PATENT AND LICENSE, THE CIRCUIT COURT OF APPEALS WAS NOT PROPERLY
CONCERNED WITH THEIR COVERAGE OR WITH THE APPLICABILITY OF THE ROYALTY
ADJUSTMENT ACT TO THEM; THE PART OF ITS ORDER AFFECTING THOSE PRODUCTS
WAS UNWARRANTED; AND IT SHOULD NOT NOW BE MADE THE BASIS FOR APPROVING
A CONSTITUTIONAL DECISION WHICH WAS OTHERWISE UNNECESSARY.  P. 141. 

ALMA MOTOR CO. V. TIMKEN-DETROIT AXLE CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

IN A SUIT TO DETERMINE THE VALIDITY OF A PATENT AND THE RIGHTS OF A
LICENSOR AND LICENSEE THEREUNDER, THE DISTRICT COURT HELD THAT THE
LICENSEE WAS ESTOPPED TO CONTEST THE VALIDITY OF THE PATENT, THAT SOME
OF ITS PRODUCTS WERE NOT COVERED, THAT OTHERS WERE COVERED AND THAT THE
LICENSEE WAS INDEBTED FOR ROYALTIES.  47 F.SUPP.  582.  ONLY THE
LICENSOR APPEALED.  WHILE THE APPEAL WAS PENDING, THE WAR DEPARTMENT,
PURSUANT TO THE ROYALTY ADJUSTMENT ACT OF OCTOBER 31, 1942, 56 STAT.
1013, 35 U.S.C. SUPP. V, SECS. 89-96, ISSUED NOTICE STOPPING PAYMENT OF
ROYALTIES BY THE LICENSEE ON PRODUCTS MANUFACTURED FOR THE UNITED
STATES AND AN ORDER FIXING A "FAIR AND JUST" ROYALTY AT ZERO, ON THE
THEORY THAT THE PATENT WAS INVALID.  THEREUPON THE LICENSEE MOVED TO
DISMISS THE APPEAL AND REMAND TO THE DISTRICT COURT WITH DIRECTIONS TO
VACATE ITS JUDGMENT - ON THE GROUND THAT THE PRODUCTS WERE MANUFACTURED
FOR THE UNITED STATES ALONE AND THAT THE OPERATION OF THE ROYALTY
ADJUSTMENT ACT AND THE ORDER THEREUNDER TRANSFERRED JURISDICTION OF THE
SUBJECT MATTER OF THE ENTIRE CASE TO THE COURT OF CLAIMS.  THE LICENSOR
CHALLENGED THE CONSTITUTIONALITY OF THE ACT AND THE GOVERNMENT
INTERVENED TO DEFEND IT.  THE CIRCUIT COURT OF APPEALS, WITHOUT PASSING
ON THE APPLICABILITY OF THE ACT, SUSTAINED ITS CONSTITUTIONALITY,
VACATED THE JUDGMENT OF THE DISTRICT COURT, AND REMANDED THE CAUSE WITH
INSTRUCTIONS TO PROCEED NO FURTHER UNTIL A JUSTICIABLE CONTROVERSY
EXISTS BETWEEN THE PARTIES.  144 F.2D 714.  THIS COURT GRANTED
CERTIORARI, 324 U.S. 832, HEARD ARGUMENTS, AND SET THE CASE FOR
REARGUMENT.  THEN THE GOVERNMENT SUGGESTED FOR THE FIRST TIME THAT THE
CIRCUIT COURT OF APPEALS SHOULD HAVE AVOIDED THE QUESTION OF
CONSTITUTIONALITY BY FIRST CONSIDERING THE QUESTION OF COVERAGE.  THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS VACATED AND THE CASE
REMANDED FOR DECISION OF ANY NON-CONSTITUTIONAL ISSUES MATERIAL TO THE
APPEAL.  P. 142. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS GRANTED IN THIS CASE FEBRUARY 5, 1945, ON A PETITION
ADDRESSED TO THE QUESTION OF THE CONSTITUTIONALITY OF THE ROYALTY
ADJUSTMENT ACT OF OCTOBER 31, 1942,  FN1  AND OF ROYALTY ADJUSTMENT
ORDER NO. W-3, ISSUED BY THE WAR DEPARTMENT JULY 28, 1943.  WE FIND
NOW, HOWEVER, THAT THE CIRCUIT COURT OF APPEALS HAD BEFORE IT, NOT ONLY
THE CONSTITUTIONAL QUESTION, WHICH WAS DECIDED, BUT ALSO A NON
CONSTITUTIONAL QUESTION, WHICH ALONE MIGHT PROPERLY HAVE SERVED AS AN
ADEQUATE GROUND ON WHICH TO DISPOSE OF THE APPEAL.  THIS NON
CONSTITUTIONAL QUESTION WAS NEITHER CONSIDERED NOR DECIDED BY THE COURT
BELOW, NOR ARGUED HERE.  WE HAVE CONCLUDED, THEREFORE, THAT WE SHOULD
NOT PASS ON THE CONSTITUTIONAL QUESTION AT THIS TIME, BUT SHOULD VACATE
THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS, AND REMAND THE CASE TO IT
FOR DECISION OF ANY NON-CONSTITUTIONAL ISSUES MATERIAL TO THE APPEAL. 

TO EXPLAIN THE REASONS FOR THIS CONCLUSION, WE MUST STATE THE HISTORY
OF THE PRESENT PROCEEDINGS IN SOME DETAIL. 

THEY WERE BEGUN BY A COMPLAINT IN A DISTRICT COURT FILED BY
RESPONDENT, THE TIMKEN-DETROIT AXLE COMPANY, AGAINST PETITIONER, ALMA
MOTOR COMPANY, ASKING A DECLARATORY JUDGMENT AS TO THEIR RESPECTIVE
RIGHTS UNDER A PATENT HELD BY ALMA AND A COEXTENSIVE LICENSE FROM ALMA
TO TIMKEN.  THE COMPLAINT ALLEGED THE EXISTENCE OF THE PATENT,
PURPORTING TO COVER CERTAIN "TRANSFER CASES" OR AUXILIARY AUTOMOTIVE
TRANSMISSIONS, AND THE LICENSE, BY WHICH TIMKEN WAS AUTHORIZED TO
MANUFACTURE THE PATENTED ARTICLES AND REQUIRED TO PAY CERTAIN SPECIFIED
ROYALTIES.  IT FURTHER ALLEGED THAT TIMKEN WAS ENGAGED IN MANUFACTURING
VARIOUS DESIGNS OF TRANSFER CASES, THAT SOME OF THESE WERE ONCE
BELIEVED TO HAVE BEEN COVERED BY ALMA'S PATENT AND HAD BEEN MADE THE
SUBJECT OF ROYALTY PAYMENTS, BUT ON THE BASIS OF LATER INFORMATION
TIMKEN HAD CONCLUDED THAT NONE OF THEM WERE COVERED, AND THAT THE
PATENT WAS INVALID.  IT ASKED FOR A JUDGMENT CONFIRMING THIS
CONCLUSION. 

ALMA ANSWERED, CLAIMING THAT ALL TIMKEN'S TRANSFER CASES WERE
COVERED, THAT THE PATENT WAS VALID, AND THAT TIMKEN WAS ESTOPPED FROM
CHALLENGING VALIDITY, AND COUNTERCLAIMED FOR A MONEY JUDGMENT FOR
UNPAID ROYALTIES. 

FOLLOWING A TRIAL, THE DISTRICT COURT FILED FINDINGS AND AN OPINION,
FN2  AND ENTERED JUDGMENT DECEMBER 2, 1942.  IT HELD TIMKEN ESTOPPED
FROM CHALLENGING THE VALIDITY OF ALMA'S PATENT; THAT CERTAIN SPECIFIED
TYPES OF TIMKEN'S TRANSFER CASES (GENERALLY THOSE DENOMINATED T-32 AND
T-43) WERE COVERED BY THE PATENT AND LICENSE; THAT TIMKEN WAS INDEBTED
TO ALMA FOR ROYALTIES THEREON; AND THAT OTHER TYPES (GENERALLY THOSE
DENOMINATED T-79) WERE OUTSIDE THE PATENT AND LICENSE.  THE COURT
INDICATED THAT UNLESS THE PARTIES COULD AGREE ON THE AMOUNT OF THE
ROYALTIES SO HELD TO BE PAYABLE, A SPECIAL MASTER WOULD BE APPOINTED TO
DETERMINE THE AMOUNT. 

SHORTLY BEFORE THIS JUDGMENT WAS ENTERED, CONGRESS ENACTED THE
ROYALTY ADJUSTMENT ACT, WHICH ALMA SEEKS TO ATTACK HERE.  THE PRIMARY
PURPOSE OF THIS ACT WAS TO REDUCE ROYALTIES FOR WHICH THE UNITED STATES
WAS ULTIMATELY LIABLE ON INVENTIONS MANUFACTURED FOR IT BY A LICENSEE,
FROM PRE-WAR RATES TO RATES APPROPRIATE TO THE VOLUME OF PRODUCTION IN
WARTIME.  WHENEVER DURING THE WAR A GOVERNMENT CONTRACTOR MANUFACTURED
UNDER A LICENSE, AND THE ROYALTIES SEEMED EXCESSIVE TO THE HEAD OF THE
DEPARTMENT CONCERNED, THE LATTER WAS EMPOWERED TO STOP PAYMENTS BY
NOTICE TO THE LICENSOR AND LICENSEE, AND AFTER A HEARING, TO FIX BY
ORDER "FAIR AND JUST" ROYALTIES, "TAKING INTO ACCOUNT THE CONDITIONS OF
WARTIME PRODUCTION."  N3  THEREAFTER, THE LICENSOR COULD COLLECT
ROYALTIES FROM THE LICENSEE ONLY AT THE RATE SO DETERMINED.  IF THE
LICENSOR FELT THAT THE REDUCTION WAS UNFAIR, HIS REMEDY WAS BY SUIT
AGAINST THE UNITED STATES IN THE COURT OF CLAIMS, WHERE HE COULD
RECOVER "FAIR AND JUST COMPENSATION  ...  TAKING INTO ACCOUNT THE
CONDITIONS OF WARTIME PRODUCTION" N4 WHATEVER REDUCTION WAS EFFECTED BY
THE ORDER WAS TO INURE TO THE BENEFIT OF THE UNITED STATES. 

THE NOTICE, STOPPING PAYMENT OF ROYALTIES FROM TIMKEN TO ALMA, WAS
ISSUED BY THE WAR DEPARTMENT DECEMBER 30, 1942.  ROYALTY ADJUSTMENT
ORDER NO. W-3 FOLLOWED ON JULY 28, 1943, FIXING A "FAIR AND JUST"
ROYALTY AT ZERO.  THE BASIS OF THIS DETERMINATION WAS THE ALLEGED
INVALIDITY OF ALMA'S PATENT, WHICH THE UNITED STATES CLAIMS THAT THE
ACT PERMITS IT TO ASSERT.  FN5 

IN THE MEANTIME, ALMA HAD TAKEN AN APPEAL FROM PARAGRAPH 5 OF THE
JUDGMENT OF THE DISTRICT COURT, WHICH HELD THAT THE T-79 TRANSFER CASES
WERE OUTSIDE THE PATENT.  TIMKEN DID NOT APPEAL.  AFTER THE ORDER WAS
PROMULGATED, TIMKEN MOVED TO DISMISS THE APPEAL AND REMAND TO THE
DISTRICT COURT WITH DIRECTIONS TO VACATE ITS JUDGMENT.  THE MOTION WAS
PREDICATED ON AN AFFIDAVIT THAT TIMKEN HAD MANUFACTURED TRANSFER CASES
FOR THE UNITED STATES ALONE, TOGETHER WITH THE ARGUMENT THAT THE
OPERATION OF THE ACT AND ORDER TRANSFERRED JURISDICTION OF THE SUBJECT
MATTER OF THE ENTIRE CASE TO THE COURT OF CLAIMS.  ALMA COUNTERED WITH
AN ATTACK ON THE CONSTITUTIONALITY OF THE ACT AND ORDER, PRIMARILY AS
WORKING A DEPRIVATION OF PROPERTY IN CONTRAVENTION OF THE FIFTH
AMENDMENT. 

THE UNITED STATES HAD AT THIS TIME ALREADY SUBMITTED AN AMICUS BRIEF,
IN WHICH IT ARGUED THAT THE ORDER HAD MADE THE APPEAL MOOT; AND WHEN
ALMA'S CONSTITUTIONAL ATTACK WAS FILED, THE UNITED STATES INTERVENED IN
SUPPORT OF THE ACT AND ORDER. 

IN ITS OPINION  FN6  THE CIRCUIT COURT OF APPEALS CONSIDERED THAT THE
QUESTION OF THE APPLICABILITY OF THE ACT AND ORDER IN THIS CASE WAS
SIMPLY A QUESTION OF THEIR CONSTITUTIONAL VALIDITY.  IT PROCEEDED TO
CONSIDER THIS LATTER QUESTION, AND DECIDED THAT BOTH THE ACT AND THE
ORDER WERE ENTIRELY VALID.  ACCORDINGLY, IT ENTERED THE FOLLOWING
ORDER: 

"...  IT IS NOW HERE ORDERED AND ADJUDGED BY THIS COURT THAT
PARAGRAPH 5 OF THE JUDGMENT OF THE SAID DISTRICT COURT IN THIS CASE BE,
AND THE SAME IS HEREBY VACATED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO PROCEED NO FURTHER THEREIN UNLESS AND
UNTIL IT SHALL APPEAR TO THE COURT THAT A JUSTICIABLE CONTROVERSY AGAIN
FN7  EXISTS BETWEEN THE PARTIES ARISING OUT OF THE FACTS SET FORTH IN
THE COMPLAINT, EXCEPT THAT THE COURT MAY, IF IT DEEMS SUCH ACTION TO BE
APPROPRIATE, VACATE ALL OR ANY PART OF THE REMAINDER OF THE JUDGMENT
AND DISMISS THE COMPLAINT AS MOOT." 

THE WAR DEPARTMENT NOTICE WAS ISSUED AFTER THE DISTRICT COURT'S
JUDGMENT, BUT BEFORE APPEAL WAS FILED IN THE CIRCUIT COURT OF APPEALS. 
IT APPEARS THAT AT NO TIME DID ANY PARTY URGE ON THE CIRCUIT COURT OF
APPEALS OR DID THAT COURT PASS ON THE QUESTION WHETHER THE T-79
TRANSFER CASES WERE COVERED BY ALMA'S PATENT AND LICENSE.  INDEED, IT
WAS NOT UNTIL AFTER WE HAD GRANTED CERTIORARI AND HEARD ARGUMENT AT THE
OCTOBER 1944 TERM ON THE CONSTITUTIONAL QUESTION, AND SET THE CASE DOWN
FOR FURTHER ARGUMENT THIS TERM, THAT THE UNITED STATES POINTED TO THIS
OMISSION, AND SUGGESTED THAT THE CIRCUIT COURT OF APPEALS SHOULD HAVE
AVOIDED THE QUESTION OF CONSTITUTIONALITY BY FIRST CONSIDERING THE
QUESTION OF COVERAGE.  IT ARGUED HERE THAT THE PRIOR DETERMINATION OF
ANY NON-CONSTITUTIONAL QUESTIONS WHICH MIGHT DISPOSE OF A CONTROVERSY
IS A PRACTICE WHICH IS DICTATED BY SOUND PRINCIPLES OF JUDICIAL
ADMINISTRATION.  IT MOVED TO VACATE THE JUDGMENT OF THE CIRCUIT COURT
OF APPEALS, AND TO REMAND THE CASE TO IT FOR SUCH DETERMINATION.  BOTH
ALMA AND TIMKEN OPPOSED THE MOTION.  ACTION WAS WITHHELD PENDING
ARGUMENT ON THE MOTION AND THE CASE ITSELF. 

THIS COURT HAS SAID REPEATEDLY THAT IT OUGHT NOT PASS ON THE
CONSTITUTIONALITY OF AN ACT OF CONGRESS UNLESS SUCH ADJUDICATION IS
UNAVOIDABLE.  THIS IS TRUE EVEN THOUGH THE QUESTION IS PROPERLY
PRESENTED BY THE RECORD.  IF TWO QUESTIONS ARE RAISED, ONE OF NON
CONSTITUTIONAL AND THE OTHER OF CONSTITUTIONAL NATURE, AND A DECISION
OF THE NON-CONSTITUTIONAL QUESTION WOULD MAKE UNNECESSARY A DECISION OF
THE CONSTITUTIONAL QUESTION, THE FORMER WILL BE DECIDED.  FN8  THIS
SAME RULE SHOULD GUIDE THE LOWER COURTS AS WELL AS THIS ONE.  WE
BELIEVE THAT THE STRUCTURE OF THE PROBLEMS BEFORE THE CIRCUIT COURT OF
APPEALS REQUIRED THE APPLICATION OF THE RULE TO THIS CASE. 

AT THE OUTSET THAT COURT WAS CONFRONTED WITH THE MERITS OF THE
APPEAL, WHICH INVOLVED SIMPLY THE COVERAGE BY THE PATENT AND LICENSE OF
THE T-79 TRANSFER CASES.  LATER, HOWEVER, IT WAS CONFRONTED ALSO WITH A
PROBLEM OF JURISDICTIONAL NATURE.  THIS INVOLVED THE EFFECT WROUGHT BY
THE ACT AND ORDER ON ITS POWER TO PROCEED TO AN ADJUDICATION ON THE
MERITS.  IF FOR ANY REASON, THE ACT AND ORDER HAD NO APPLICABILITY IN
THE CASE, THE COURT SHOULD PROCEED TO THE MERITS.  IF, HOWEVER, THEY
WERE CONTROLLING, ALMA WAS RELEGATED TO ITS STATUTORY REMEDY AGAINST
THE UNITED STATES, AND THE COURT WOULD BE REQUIRED TO DISMISS THE
APPEAL, AND TO VACATE PARAGRAPH 5 OF THE JUDGMENT IN THE DISTRICT
COURT. 

IN THE DETERMINATION OF THIS JURISDICTIONAL PROBLEM, WE ARE OF THE
OPINION THAT THE CIRCUIT COURT OF APPEALS ERRED.  IT ASSUMED THAT THIS
PROBLEM INVOLVED ONLY THE QUESTION OF THE CONSTITUTIONALITY OF THE ACT
AND ORDER.  BUT THE ACT AND ORDER, WHETHER OR NOT CONSTITUTIONAL, DO
NOT CONTROL THE DISPOSITION OF THIS CASE UNLESS THEY WERE INTENDED TO
APPLY TO IT.  THE QUESTION OF THEIR APPLICABILITY IS A NON
CONSTITUTIONAL QUESTION, THE DECISION OF WHICH MIGHT HAVE MADE
UNNECESSARY ANY CONSIDERATION OF CONSTITUTIONALITY. 

WERE THE ACT AND ORDER INTENDED TO APPLY?  THEIR TERMS SEEM TO MAKE
THAT DEPEND UPON WHETHER THE SUBJECTMATTER OF THE APPEAL - THE T-79
TRANSFER CASES - WERE COVERED BY THE PATENT AND LICENSE.  THE ACT
PROVIDES THAT IT IS ONLY "WHENEVER AN INVENTION  ...  SHALL BE
MANUFACTURED  ...  FOR THE UNITED STATES, WITH LICENSE FROM THE OWNER
THEREOF  ..."  AND THE DEPARTMENT HEAD BELIEVES THE STIPULATED
ROYALTIES TO BE UNREASONABLE, THAT THE LATTER SHALL GIVE "WRITTEN
NOTICE OF SUCH FACT TO THE LICENSOR AND TO THE LICENSEE."  IT IS ONLY
AFTER SUCH NOTICE THAT THE DEPARTMENT HEAD MAY FIX "FAIR AND JUST"
ROYALTIES, AND ONLY "SUCH LICENSEE" WHO IS FORBIDDEN TO PAY ADDITIONAL
AMOUNTS AS ROYALTIES, AND ONLY "SUCH LICENSOR" WHO IS RELEGATED TO THE
COURT OF CLAIMS.  FN9  CONVERSELY, IF THE PUTATIVE INVENTION IS
MANUFACTURED WITHOUT LICENSE, OR IF THE PUTATIVE PATENTEE IS NOT
ACTUALLY THE OWNER, THESE POWERS AND DISABILITIES DO NOT ARISE.  EVEN
ORDER NO. W-3 DOES NOT REFER TO T-79 TRANSFER CASES AS SUCH.  IT
FORBIDS THE PAYMENT OF ROYALTIES ONLY ON TRANSFER CASES "UNDER" THIS
LICENSE, OR ANY LICENSE PURSUANT TO THIS PATENT, "WHICH EMBODY  ...
THE  ... ALLEGED INVENTIONS."  AGAIN, IF THE T-79S ARE NOT "UNDER" THE
ALMA-TIMKEN LICENSE, OR IF THEY DO NOT "EMBODY" ALMA'S PATENTED CLAIM,
THEN THE ORDER EXPRESSLY LEAVES ALMA'S AND TIMKEN'S RIGHTS AND REMEDIES
UNAFFECTED. 

CONSEQUENTLY, COVERAGE OF THE T-79S, AS WELL AS CONSTITUTIONALITY OF
THE ACT AND ORDER, WAS A CRUCIAL ISSUE IN DECIDING THE JURISDICTION OF
THE CIRCUIT COURT OF APPEALS.  IF THEY ARE COVERED, THE ACT AND ORDER
APPLY, AND IT WAS THEN NECESSARY TO DECIDE CONSTITUTIONALITY IN ORDER
TO DETERMINE WHETHER THE COURT COULD PROCEED TO A JUDGMENT ON THE
MERITS.  IF THE T-79S ARE NOT COVERED, THE ACT AND ORDER MANIFESTLY DO
NOT APPLY, AND THE COURT COULD PROCEED TO A JUDGMENT ON THE MERITS,
WHETHER THE ACT AND ORDER ARE CONSTITUTIONAL OR NOT.  IN THAT EVENT, OF
COURSE, NO CONSTITUTIONAL QUESTION WOULD BE DECIDED.    THE CIRCUIT
COURT OF APPEALS MAY HAVE THOUGHT THAT THE APPLICABILITY OF THE ACT AND
ORDER TURN NOT ON ACTUAL COVERAGE, BUT ON A CLAIM OF COVERAGE, AND
HENCE THAT APPLICABILITY WAS UNDISPUTED AND ONLY CONSTITUTIONALITY WAS
PERTINENT TO JURISDICTION IN THIS CASE.  SUCH CONSTRUCTION IS SAID TO
HAVE SOME SUPPORT IN CASES LIKE SMITHERS V. SMITH, 204 U.S. 632, AND
BELL V. HOOD, 327 U.S. 678, IN WHICH BONA FIDE CLAIMS OF RIGHTS WERE
HELD TO SATISFY JURISDICTIONAL REQUIREMENTS AS TO THE AMOUNT IN
CONTROVERSY AND AS TO THE EXISTENCE OF A CERTAIN FEDERAL QUESTION,
REGARDLESS OF WHETHER SUCH CLAIMS WOULD ULTIMATELY BE ESTABLISHED. 

THE ANSWER TO THIS ARGUMENT IS THAT THE STATUTORY LANGUAGE N10 WHICH
CONTROLLED THE CITED CASES EXPRESSLY REFERS TO THE CLAIM AS THE TEST OF
JURISDICTION, WHEREAS, AS WE HAVE SHOWN, THE INSTANT ACT REFERS TO THE
OBJECTIVE EVENT.  FURTHERMORE, THE TEST IN THE SMITHERS AND BELL CASES,
SUPRA, IS A CONDITION PRECEDENT TO THE EXERCISE OF JURISDICTION. 
UNLESS SUCH EXERCISE IS MADE TO TURN ON WHAT THE PLAINTIFF RATHER THAN
WHAT THE COURT SAYS IS AT STAKE, THE COURT'S JURISDICTIONAL RULING WILL
OFTEN DENY THE PLAINTIFF A FORUM WHEN A FULL HEARING MIGHT LATER HAVE
SHOWN A RIGHT TO RELIEF.  THE TEST IN THIS CASE, ON THE OTHER HAND, IS
A CONDITION SUBSEQUENT, IN CERTAIN INSTANCES DEPRIVING THE COURT OF
JURISDICTION, AND THE SAME DANGER IS NOT PRESENT. 

TIMKEN CONTENDS THAT THE JURISDICTION OF ALL SUITS WITH RESPECT TO
INVENTIONS MANUFACTURED FOR THE UNITED STATES IN WARTIME IS TRANSFERRED
TO THE COURT OF CLAIMS, AND THAT THE COVERAGE QUESTION IS IMMATERIAL. 
IT ARGUES THAT WHERE THE ROYALTY ADJUSTMENT ACT DOES NOT ACCOMPLISH
THIS TRANSFER BECAUSE THE MANUFACTURE IS NOT BY A LICENSEE, THE ACT OF
JUNE 25, 1910, AS AMENDED,  FN11  SHOULD APPLY, AND THAT IT HAS THE
SAME EFFECT.  IT IS SAID, THEREFORE, THAT THE CASE SHOULD HAVE BEEN
DISMISSED WHETHER THERE WAS COVERAGE OR NOT, AND THAT THE CIRCUIT COURT
OF APPEALS PROPERLY REFRAINED FROM DECIDING THAT QUESTION. 

ASSUMING THE PREMISE IS CORRECT, WE DO NOT REACH THE SAME
CONCLUSION.  DISMISSAL CAN BE ORDERED UNDER THE 1910 ACT, IF IT
APPLIES, WITHOUT DECIDING ANY CONSTITUTIONAL QUESTIONS, FOR THAT ACT
HAS ALREADY BEEN BEFORE THIS COURT AND BEEN APPROVED.  FN12  TO ORDER
DISMISSAL UNDER THE 1942 ACT, HOWEVER, OR UNDER ONE OF THE TWO ACTS
ALTERNATIVELY, REQUIRES A DETERMINATION OF THE CONSTITUTIONALITY OF THE
LATTER.  AS WE HAVE ALREADY INDICATED, THIS IS SUFFICIENT REASON FOR
FIRST DECIDING WHICH ACT IMPELS THE TRANSFER. 

IT IS TRUE THAT SEC. 2 OF THE ROYALTY ADJUSTMENT ACT PROVIDES THAT,
IF THE LICENSOR SUES IN THE COURT OF CLAIMS, THE UNITED STATES "MAY
AVAIL ITSELF OF ANY AND ALL DEFENSES, GENERAL OR SPECIAL, THAT MIGHT BE
PLEADED BY A DEFENDANT IN AN ACTION FOR INFRINGEMENT AS SET FORTH IN
TITLE SIXTY OF THE REVISED STATUTES, OR OTHERWISE."  FN13  WE DEEM IT
CLEAR THAT SUCH DEFENSES WOULD INCLUDE QUESTIONS OF COVERAGE AS WELL AS
VALIDITY OF A PATENT.  BUT WE DO NOT THINK THAT SEC. 2 REFLECTS A
DECISION BY CONGRESS THAT ALL SUITS INVOLVING LICENSES UNDER THE ACT
AND PRESENTING QUESTIONS OF COVERAGE OR VALIDITY SHOULD BE TRIED IN THE
COURT OF CLAIMS.  AS RESPECTS THE PROBLEM WITH WHICH WE ARE NOW
CONCERNED, SEC. 2 DOES NO MORE THAN TO MAKE AVAILABLE SUCH DEFENSES IN
THE COURT OF CLAIMS WHENEVER THE SUITS AUTHORIZED BY THE ACT ARE
BROUGHT THERE. 

BOTH ALMA AND TIMKEN MAINTAIN THAT THE CONSTITUTIONAL QUESTION COULD
NOT BE AVOIDED BY THE CIRCUIT COURT OF APPEALS, BECAUSE THE T-32 AND T
43 TRANSFER CASES WERE COVERED, IF THE T-79S WERE NOT, AND WERE
THEREFORE NECESSARILY SUBJECT TO THE ORDER.  INDEED, THE DISTRICT COURT
DECIDED THAT THEY WERE COVERED, AND TIMKEN DID NOT APPEAL. 

THIS POINT CARRIES ITS OWN REFUTATION.  NEITHER PARTY APPEALED FROM
THE ADJUDICATION AS TO THE T-32 AND T-43 TRANSFER CASES.  NO CLAIM AS
TO THEM WAS BEFORE THE CIRCUIT COURT OF APPEALS.  THERE IS NO CLAIM NOW
THAT A LITIGANT MAY NOT APPEAL FROM PART OF A JUDGMENT, OR THAT AN
APPEAL FROM PART BRINGS UP THE WHOLE.  FN14  THE CIRCUIT COURT OF
APPEALS WAS NOT PROPERLY CONCERNED WITH THEIR COVERAGE, OR WITH THE
APPLICABILITY TO THEM OF THE ACT OR ORDER.  THEREFORE, THE PART OF ITS
ORDER AFFECTING T-32S AND T-43S WAS UNWARRANTED, AND SHOULD NOT NOW BE
MADE THE BASIS FOR APPROVING A CONSTITUTIONAL DECISION WHICH WAS
OTHERWISE UNNECESSARY. 

ALMA OBJECTS STRENUOUSLY TO THE GOVERNMENT "MENDING ITS HOLD" BETWEEN
THE TIME IT URGED DISMISSAL IN AN AMICUS BRIEF IN THE CIRCUIT COURT OF
APPEALS AND ARGUED CONSTITUTIONALITY THERE AND HERE, AND THE TIME IT
FILED HERE ITS MOTION TO VACATE AND REMAND.  THE GOVERNMENT CERTAINLY
AIDED AND ABETTED THE CIRCUIT COURT OF APPEALS IN ITS ERROR.  BUT ALMA
IS NOT WITHOUT FAULT IN CREATING THE CONFUSION.  IN ITS "PETITION TO
REVIEW" THE ORDER, ALMA ASKED THE CIRCUIT COURT OF APPEALS TO HOLD THE
ORDER UNCONSTITUTIONAL.  IN ITS PETITION TO THE CIRCUIT COURT OF
APPEALS FOR REHEARING, IT ARGUED THAT THE COURT SHOULD NOT HAVE PASSED
ON CONSTITUTIONALITY BECAUSE TIMKEN HAD NOT CHARGED ANY ROYALTIES TO
THE UNITED STATES ON T-79S, AND THE ACT AND ORDER WERE ALLEGEDLY
INAPPLICABLE.  BEFORE THIS COURT IT HAS RETURNED TO ITS ORIGINAL
POSITION. 

WE AGREE THAT MUCH TIME HAS BEEN WASTED BY THE EARLIER FAILURE OF THE
PARTIES TO INDICATE, OR THE CIRCUIT COURT OF APPEALS OR THIS COURT TO
SEE, THE COURSE WHICH SHOULD HAVE BEEN FOLLOWED.  THIS, HOWEVER, IS NO
REASON TO CONTINUE NOW ON THE WRONG COURSE.  THE PRINCIPLE OF AVOIDING
CONSTITUTIONAL QUESTIONS IS ONE WHICH WAS CONCEIVED OUT OF
CONSIDERATIONS OF SOUND JUDICIAL ADMINISTRATION.  IT IS A TRADITIONAL
POLICY OF OUR COURTS.  FN15 

THE JUDGMENT IS VACATED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS
IN CONFORMITY WITH THIS OPINION. 

FN1  56 STAT. 1013, 35 U.S.C. SUPP. V, SECS. 89-96. 

FN2  TIMKEN-DETROIT AXLE CO. V. ALMA MOTOR CO., 47 F.SUPP.  582(D.
DEL. 1942). 

FN3  56 STAT. 1013, 35 U.S.C. SUPP. V, SEC. 89. 

FN4  56 STAT. 1013, 35 U.S.C. SUPP. V, SEC. 90. 

FN5  56 STAT. 1013, 35 U.S.C. SUPP. V, SEC. 90. 

FN6  TIMKEN-DETROIT AXLE CO. V. ALMA MOTOR CO., 144 F.2D 714(CCA 3,
1944). 

FN7  THE WORD "AGAIN" WAS DELETED BY AN ORDER OF OCTOBER 2, 1944. 

FN8  SILER V. LOUISVILLE & NASHVILLE R. CO., 213 U.S. 175, 193; LIGHT
V. UNITED STATES, 220 U.S. 523, 538; SPECTOR MOTOR CO. V. MCLAUGHLIN,
323 U.S. 101, 105.  SEE BRANDEIS, J., CONCURRING IN ASHWANDER V..
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 347. 

FN9  35 U.S.C. SUPP. V, SEC. 89. 

FN10  "THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION  ...
WHERE THE MATTER IN CONTROVERSY EXCEEDS  ...  THE SUM OR VALUE OF
$3,000, AND (A) ARISES UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES  ..."  28 U.S.C. SEC. 41. 

FN11  ACT OF JUNE 25, 1910, 36 STAT. 851, AS AMENDED BY THE ACT OF
JULY 1, 1918, 40 STAT. 705, 35 U.S.C. SEC. 68, PROVIDES IN PART:
"WHENEVER AN INVENTION DESCRIBED IN AND COVERED BY A PATENT OF THE
UNITED STATES SHALL HEREAFTER BE USED OR MANUFACTURED BY OR FOR THE
UNITED STATES WITHOUT LICENSE OF THE OWNER THEREOF OR LAWFUL RIGHT TO
USE OR MANUFACTURE THE SAME, SUCH OWNER'S REMEDY SHALL BE BY SUIT
AGAINST THE UNITED STATES IN THE COURT OF CLAIMS FOR THE RECOVERY OF
HIS REASONABLE AND ENTIRE COMPENSATION FOR SUCH USE AND MANUFACTURE
..." 

FN12  CROZIER V. KRUPP, 224 U.S. 290; RICHMOND SCREW ANCHOR CO. V.
UNITED STATES, 275 U.S. 331. 

FN13  SECTION 2 PROVIDES IN FULL: 

"ANY LICENSOR AGGRIEVED BY ANY ORDER ISSUED PURSUANT TO SECTION 1
HEREOF, FIXING AND SPECIFYING THE MAXIMUM RATES OR AMOUNTS OF ROYALTIES
UNDER A LICENSE ISSUED BY HIM, MAY INSTITUTE SUIT AGAINST THE UNITED
STATES IN THE COURT OF CLAIMS, OR IN THE DISTRICT COURTS OF THE UNITED
STATES INSOFAR AS SUCH COURTS MAY HAVE CONCURRENT JURISDICTION WITH THE
COURT OF CLAIMS, TO RECOVER SUCH SUM, IF ANY, AS, WHEN ADDED TO THE
ROYALTIES FIXED AND SPECIFIED IN SUCH ORDER, SHALL CONSTITUTE FAIR AND
JUST COMPENSATION TO THE LICENSOR FOR THE MANUFACTURE, USE, SALE, OR
OTHER DISPOSITION OF THE LICENSED INVENTION FOR THE UNITED STATES,
TAKING INTO ACCOUNT THE CONDITIONS OF WARTIME PRODUCTION.  IN ANY SUCH
SUIT THE UNITED STATES MAY AVAIL ITSELF OF ANY AND ALL DEFENSES,
GENERAL OR SPECIAL, THAT MIGHT BE PLEADED BY A DEFENDANT IN AN ACTION
FOR INFRINGEMENT AS SET FORTH IN TITLE SIXTY OF THE REVISED STATUTES,
OR OTHERWISE." 

FN14  RULE 73(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDES
THAT THE "NOTICE OF APPEAL ...  SHALL DESIGNATE THE JUDGMENT OR PART
THEREOF APPEALED FROM  ..." 

FN15  CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11 PET. 420, 553(1837). 

..END :








UNEMPLOYMENT COMM'N V. ARAGON, 329 U.S. 143 


NO. 25.  ARGUED FEBRUARY 27, 1946.  REARGUED NOVEMBER 13, 1946.  -
DECIDED DECEMBER 9, 1946.  - 149 F.2D 447, AFFIRMED IN PART, REVERSED
IN PART. 


COMPANIES ENGAGED IN CATCHING AND CANNING SALMON IN ALASKA TERMINATED
THEIR AGREEMENT WITH THE UNION REPRESENTING THEIR EMPLOYEES AT THE END
OF THE 1939 SEASON.  PRIOR TO THE BEGINNING OF THE 1940 SEASON, THEY
OPENED NEGOTIATIONS IN SAN FRANCISCO WITH THE SAME UNION FOR A NEW
AGREEMENT.  THERE ENSUED A CONTROVERSY OVER WAGES WHICH RESULTED IN A
FAILURE TO REACH AN AGREEMENT AND A DECISION TO CONDUCT NO OPERATIONS
DURING THE 1940 SEASON.  INDIVIDUALS WHO HAD WORKED FOR THE COMPANIES
DURING THE 1939 SEASON FILED CLAIMS FOR UNEMPLOYMENT BENEFITS WITH THE
ALASKA UNEMPLOYMENT COMPENSATION COMMISSION.  THE COMMISSION HELD THAT
THEY WERE DISQUALIFIED FROM RECEIVING PAYMENTS FOR EIGHT WEEKS UNDER
SEC. 5(D) OF ALASKA EXTRA.  SESS.  L., 1937, C. 4, AS AMENDED BY ALASKA
SESS. L., 1939, CC. 1, 51, WHICH DISQUALIFIES AN INDIVIDUAL FOR EIGHT
WEEKS IF "THE COMMISSION FINDS THAT HIS  ...  UNEMPLOYMENT IS DUE TO A
LABOR DISPUTE WHICH IS IN ACTIVE PROGRESS AT THE FACTORY, ESTABLISHMENT
OR OTHER PREMISES AT WHICH HE  ...  WAS LAST EMPLOYED."  HELD: 

1.  THE COMMISSION COULD PROPERLY FIND THAT A "LABOR DISPUTE" EXISTED
WITHIN THE MEANING OF SEC. 5(D) OF THE ALASKA ACT.  PP. 149-151. 

2.  THE TERM "LABOR DISPUTE," AS USED IN SEC. 5(D) OF THE ALASKA ACT,
NEED NOT BE NARROWLY CONSTRUED TO REQUIRE A STRIKE OR LEAVING OF
EMPLOYMENT BUT MAY BE CONSTRUED AS COVERING A SITUATION WHERE THE
CONTROVERSY PRECEDES THE EMPLOYMENT.  PP. 149-151. 

3.  EVIDENCE THAT TWO OF THE COMPANIES HAD MADE EXTENSIVE
PREPARATIONS FOR THE 1940 OPERATIONS, PURCHASING EQUIPMENT AND
SUPPLIES, PREPARING SHIPS AND HOLDING THEM IN READINESS FOR THE
EXPEDITION, AND THAT THEY NEGOTIATED IN GOOD FAITH AND FAILED TO
OPERATE ONLY BECAUSE OF THEIR INABILITY TO NEGOTIATE SATISFACTORY LABOR
AGREEMENTS BEFORE THE BEGINNING OF THE SEASON, WAS SUFFICIENT TO
SUPPORT THE COMMISSION'S FINDING THAT THEIR UNEMPLOYMENT WAS "DUE" TO A
LABOR DISPUTE.  PP. 149-151. 

4.  EVIDENCE SHOWING, INTER ALIA, THAT THE WITHDRAWAL OF ANOTHER
COMPANY FROM NEGOTIATIONS WITH THE UNION AND ITS DETERMINATION NOT TO
OPERATE DURING THE 1940 SEASON OCCURRED PRIOR TO THE DEADLINE FOR ITS
OPERATIONS AND WAS CAUSED PRIMARILY BY FACTORS OTHER THAN ITS INABILITY
TO NEGOTIATE A SATISFACTORY LABOR CONTRACT DID NOT SUPPORT A FINDING BY
THE COMMISSION THAT ITS EMPLOYEES WERE UNEMPLOYED "DUE" TO A LABOR
DISPUTE AT THE ESTABLISHMENT AT WHICH THEY WERE LAST EMPLOYED.  PP.
152, 153. 

5.  WHERE THE NEGOTIATIONS CONTINUED BEYOND THE DEADLINE DATES SET BY
THE COMPANIES FOR THE CONSUMMATION OF AN AGREEMENT AND BEYOND THE DATES
OF THE APPLICATIONS FOR UNEMPLOYMENT BENEFITS, THE COMMISSION COULD
PROPERLY FIND THAT A LABOR DISPUTE WAS IN "ACTIVE PROGRESS" WITHIN THE
MEANING OF SEC. 5(D) OF THE ALASKA ACT, EVEN IF IT BE ASSUMED THAT AT
SOME TIME WITHIN THE EIGHT-WEEK PERIOD OF DISQUALIFICATION THE POINT
WAS REACHED WHEN ALL POSSIBILITY OF SETTLEMENT DISAPPEARED.  P. 153. 

(A)  THE QUESTION IS ONE OF SPECIFIC APPLICATION OF A BROAD STATUTORY
TERM IN A PROCEEDING IN WHICH THE AGENCY ADMINISTERING THE STATUTE MUST
DETERMINE IT INITIALLY.  P. 153. 

(B)  THE REVIEWING COURT'S FUNCTION IS LIMITED; AND ALL THAT IS
NEEDED TO SUPPORT THE COMMISSION'S INTERPRETATION IS THAT IT HAS
"WARRANT IN THE RECORD" AND A "REASONABLE BASIS IN LAW."  PP. 153,
154. 

6.  THIS COURT IS UNABLE TO SAY THAT THE COMMISSION'S CONSTRUCTION
WAS IRRATIONAL OR WITHOUT SUPPORT IN THE RECORD, SINCE THE COMMISSION
MIGHT REASONABLY CONCLUDE THAT THE UNEMPLOYMENT WAS NOT OF THE
"INVOLUNTARY" NATURE WHICH THE STATUTE WAS DESIGNED TO ALLEVIATE.  P.
154. 

7.  THE FACT THAT, IN ACCORDANCE WITH THE USUAL PROCEDURE, THE WAGE
NEGOTIATIONS WERE CONDUCTED IN SAN FRANCISCO AND SEATTLE, INSTEAD OF AT
THE PLACE OF WORK IN ALASKA, DID NOT PREVENT THE DISPUTE FROM BEING "AT
THE FACTORY, ESTABLISHMENT, OR OTHER PREMISES" WITHIN THE MEANING OF
SEC. 5(D) OF THE ALASKA ACT.  PP. 154-156. 

8.  A REVIEWING COURT USURPS THE ADMINISTRATIVE AGENCY'S FUNCTION
WHEN IT SETS ASIDE AN ADMINISTRATIVE DETERMINATION ON A GROUND NOT
THERETOFORE PRESENTED AND DEPRIVES THE AGENCY OF AN OPPORTUNITY TO
CONSIDER THE MATTER, MAKE ITS RULING, AND STATE THE REASONS FOR ITS
ACTION - WHERE THE STATUTE PROVIDES THAT JUDICIAL REVIEW IS PERMITTED
ONLY AFTER EXHAUSTION OF ADMINISTRATIVE REMEDIES.  P. 155. 

UNEMPLOYMENT COMPENSATION COMMISSION OF ALASKA ET AL. V. ARAGON ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

THE UNEMPLOYMENT COMPENSATION COMMISSION OF ALASKA HELD CERTAIN
EMPLOYEES OF SALMON CANNERIES DISQUALIFIED FOR EIGHT WEEKS FROM
RECEIVING UNEMPLOYMENT COMPENSATION BENEFITS, ON THE GROUND THAT THEIR
UNEMPLOYMENT WAS DUE TO A "LABOR DISPUTE" WITHIN THE MEANING OF THE
ALASKA UNEMPLOYMENT COMPENSATION LAW, ALASKA EXTRA.  SESS.  L., 1937,
C. 4, AS AMENDED BY ALASKA SESS. L., 1939, CC. 1, 51.  THE DISTRICT
COURT AFFIRMED THE COMMISSION'S HOLDING.  THE CIRCUIT COURT OF APPEALS
REVERSED.  149 F.2D 447.  THIS COURT GRANTED CERTIORARI.  326 U.S.
700.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  P. 156. 

MR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT. 

IN MAY, 1940, THE INDIVIDUAL RESPONDENTS FILED CLAIMS FOR
UNEMPLOYMENT BENEFITS WITH THE UNEMPLOYMENT COMPENSATION COMMISSION OF
THE TERRITORY OF ALASKA.  AFTER AN INITIAL DETERMINATION BY AN EXAMINER
AND AFTER DECISION BY A REFEREE, THE COMMISSION HELD THAT THE CLAIMANTS
WERE DISQUALIFIED FROM RECEIVING BENEFITS FOR A PERIOD OF EIGHT WEEKS,
SINCE THEIR UNEMPLOYMENT WAS DUE TO A LABOR DISPUTE IN ACTIVE PROGRESS
WITHIN THE MEANING OF THE ALASKA UNEMPLOYMENT COMPENSATION LAW.  FN1
THE UNITED STATES DISTRICT COURT AFFIRMED THE COMMISSION'S HOLDING IN
ALL PARTICULARS.  THE CIRCUIT COURT OF APPEALS REVERSED, ONE JUDGE
DISSENTING.  WE GRANTED CERTIORARI BECAUSE OF THE PUBLIC IMPORTANCE OF
THE QUESTIONS INVOLVED.  FN2 

AMONG THE PETITIONERS ARE THREE CORPORATIONS ENGAGED PRINCIPALLY IN
THE BUSINESS OF SALMON FISHING, CANNING, AND MARKETING.  ONE OF THE
COMPANIES OWNS CANNERIES AND OTHER FACILITIES AT KARLUK, CHIGNIK, AND
BRISTOL BAY, ALASKA.  THE OTHER TWO COMPANIES OPERATE ONLY AT BRISTOL
BAY.  CATCHING AND CANNING SALMON IS A SEASONAL ACTIVITY.  FN3 THE
COMPANIES CUSTOMARILY HIRE WORKERS AT SAN FRANCISCO AT THE BEGINNING OF
THE SEASON, TRANSPORT THEM TO THE ALASKAN ESTABLISHMENTS, AND RETURN
THEM TO SAN FRANCISCO AT THE SEASON'S END.  SIMILAR OPERATIONS ARE
CARRIED ON BY OTHER COMPANIES OUT OF OTHER WEST COAST PORTS, NOTABLY
SEATTLE AND PORTLAND.  THE INDIVIDUAL RESPONDENTS ARE ALL MEMBERS OF
THE ALASKA CANNERY WORKERS UNION LOCAL NO. 5, AND EACH WORKED IN ALASKA
FOR ONE OF THE THREE COMPANIES DURING THE 1939 SEASON.  LOCAL NO. 5 IS
THE RECOGNIZED BARGAINING AGENT OF THE CANNERY WORKERS IN THE SAN
FRANCISCO AREA. 

IN 1939, AS HAD BEEN THE PRACTICE FOR SOME YEARS, THE UNION ENTERED
INTO A WRITTEN AGREEMENT WITH THE COMPANIES, COVERING IN CONSIDERABLE
DETAIL THE MATTERS OF WAGES, HOURS, CONDITIONS OF EMPLOYMENT, AND THE
LIKE.  AFTER THE END OF THE 1939 SEASON, THE COMPANIES TERMINATED THE
AGREEMENT THEN IN EFFECT, WHICH MADE NECESSARY THE NEGOTIATION OF A NEW
CONTRACT FOR THE 1940 SEASON.  CONSEQUENTLY, ON MARCH 6, 1940, THE
COMPANIES THROUGH THEIR AUTHORIZED AGENT, ALASKA SALMON INDUSTRY, INC.,
INVITED THE UNION TO ENTER INTO NEGOTIATIONS FOR A NEW AGREEMENT.  IN A
SERIES OF MEETINGS HELD SHORTLY THEREAFTER, SERIOUS DISAGREEMENT
APPEARED WHICH QUICKLY DEVELOPED INTO AN IMPASSE ON THE QUESTION OF
WAGES.  THE UNION DEMANDED WAGES EQUAL TO OR IN EXCESS OF THOSE PAID
UNDER THE TERMS OF THE 1939 AGREEMENT.  THE COMPANIES OFFERED WAGES
WHICH FOR THE MOST PART WERE BELOW THOSE PAID IN 1939.  ON APRIL 1,
1940, THE UNION CAUSED THE NEGOTIATIONS AS TO THE WAGE ISSUE TO BE
TRANSFERRED FROM SAN FRANCISCO TO SEATTLE, WHERE AN ATTEMPT WAS BEING
MADE TO EFFECT A COASTWIDE AGREEMENT TO COVER ALL WEST COAST COMPANIES
CARRYING ON SALMON OPERATIONS IN ALASKA.  LOCAL NO. 5, HOWEVER, REFUSED
TO SIGN A "MEMORANDUM" AGREEMENT INCORPORATING SUCH TERMS AS MIGHT
RESULT FROM THE CONCURRENT SEATTLE NEGOTIATIONS. 

ON APRIL 3, THE COMPANIES NOTIFIED THE UNION THAT IF OPERATIONS WERE
TO BE CARRIED ON IN KARLUK AND CHIGNIK DURING THE 1940 SEASON, AN
AGREEMENT WITH RESPECT TO THE FORMER WOULD HAVE TO BE REACHED BY APRIL
10 AND WITH RESPECT TO THE LATTER BY APRIL 12.  ALTHOUGH NEGOTIATIONS
PROCEEDED UP TO THE DEADLINES, THE PARTIES ARRIVED AT NO UNDERSTANDING,
AND ON APRIL 22 ALASKA SALMON INDUSTRY, INC., FORMALLY ANNOUNCED THAT
NO OPERATIONS WOULD BE CARRIED ON IN KARLUK AND CHIGNIK DURING 1940. 
MEETINGS CONTINUED, HOWEVER, IN AN EFFORT TO COME TO AN UNDERSTANDING
WITH RESPECT TO BRISTOL BAY BEFORE THE ARRIVAL OF THE MAY 3D DEADLINE
WHICH HAD BEEN SET FOR THOSE OPERATIONS.  ALTHOUGH FEDERAL MEDIATORS
INTERVENED IN AN ATTEMPT TO DISCOVER A SUITABLE COMPROMISE, THE
DEADLINE DATE PASSED WITHOUT AGREEMENT.  IT APPEARS THAT, AFTER MAY 3,
NEGOTIATIONS CONTINUED IN SEATTLE, WHERE A CONTRACT AFFECTING ONLY
CANNERS AND WORKERS OPERATING OUT OF PORTS OTHER THAN SAN FRANCISCO WAS
FINALLY EXECUTED ON MAY 29.  THE COMPANIES AND UNION WHICH ARE INVOLVED
IN THIS CASE WERE SPECIFICALLY EXCLUDED FROM THE TERMS OF THE 1940
SEATTLE AGREEMENT. 

SHORTLY AFTER MAY 3, THE INDIVIDUAL RESPONDENTS FILED CLAIMS FOR
UNEMPLOYMENT BENEFITS WITH THE ALASKA UNEMPLOYMENT COMPENSATION
COMMISSION.  THE COMMISSION, ACTING THROUGH AN EXAMINER, HELD THAT
RESPONDENTS WERE DISQUALIFIED FROM RECEIVING PAYMENTS FOR THE STATUTORY
PERIOD OF EIGHT WEEKS UNDER THE PROVISIONS OF SEC. 5(D) OF THE ALASKA
LAW.  AT THE TIME THIS CASE AROSE, THAT SECTION STATED IN PART:  "AN
INDIVIDUAL SHALL BE DISQUALIFIED FOR BENEFITS ...  (D) FOR ANY WEEK
WITH RESPECT TO WHICH THE COMMISSION FINDS THAT HIS TOTAL OR PARTIAL
UNEMPLOYMENT IS DUE TO A LABOR DISPUTE WHICH IS IN ACTIVE PROGRESS AT
THE FACTORY, ESTABLISHMENT OR OTHER PREMISES AT WHICH HE IS OR WAS LAST
EMPLOYED; PROVIDED, THAT SUCH DISQUALIFICATION SHALL NOT EXCEED THE 8
WEEKS IMMEDIATELY FOLLOWING THE BEGINNING OF SUCH DISPUTE  ..." 

IN PURSUANCE OF THE APPEAL PROVISIONS OF THE STATUTE,  FN4
RESPONDENTS ASKED FOR A REVIEW OF THE EXAMINER'S DETERMINATION.  THE
COMMISSION, IN RESPONSE TO THIS APPLICATION, APPOINTED A REFEREE TO
PASS ON THE DISPUTED CLAIMS.  THE SCOPE OF THE HEARINGS WAS CONFINED TO
THE ISSUE OF WHETHER THE UNEMPLOYMENT OF THE CLAIMANTS WAS CAUSED BY
THE EXISTENCE OF A LABOR DISPUTE.  AT THE END OF THE PROCEEDINGS, THE
REFEREE CAME TO THE CONCLUSION THAT, ALTHOUGH THERE WAS A LABOR DISPUTE
IN EXISTENCE INITIALLY, THE DISPUTE WAS NO LONGER "IN ACTIVE PROGRESS"
AFTER THE PASSING OF THE DATES FIXED BY THE COMPANIES FOR CONSUMMATION
OF THE WORKING AGREEMENTS.  CONSEQUENTLY, THE DISQUALIFICATION UNDER
SEC. 5(D) WITH RESPECT TO EACH OF THE LOCALITIES WAS HELD NO LONGER TO
ATTACH AFTER THE PASSAGE OF THE RESPECTIVE DEADLINE DATES.  FN5 

THE COMMISSION, ON APPEAL,  FN6  REVERSED THE REFEREE'S DECISION AND
HELD THAT, WITHIN THE MEANING OF THE ALASKA LAW, A LABOR DISPUTE WAS IN
ACTIVE PROGRESS THROUGHOUT THE ENTIRE EIGHT-WEEK STATUTORY PERIOD OF
DISQUALIFICATION BEGINNING WITH THE OPENING OF THE SEASON IN EACH
LOCALITY.  CONSEQUENTLY, NO BENEFITS WERE PAYABLE UNTIL THE EXPIRATION
OF THE DISQUALIFICATION PERIOD.  THE UNITED STATES DISTRICT COURT
AFFIRMED THE COMMISSION'S DECISION IN ALL PARTICULARS.  FN7  THE
CIRCUIT COURT OF APPEALS, WITH ONE JUDGE DISSENTING, REVERSED, HOWEVER,
ON THE GROUND THAT THE LABOR DISPUTE WAS NOT PHYSICALLY AT THE ALASKA
CANNERIES WHERE THE INDIVIDUAL RESPONDENTS HAD BEEN LAST EMPLOYED. 

WE ARE MET AT THE OUTSET WITH THE CONTENTION THAT THE FACTS OF THIS
CASE DO NOT PRESENT A "LABOR DISPUTE" WITHIN THE MEANING OF SEC. 5(D)
OF THE ALASKA ACT.  RESPONDENTS URGE THAT THE TERM MUST BE NARROWLY
CONSTRUED TO REQUIRE A STRIKE OR LEAVING OF EMPLOYMENT WHICH, IN TURN,
CALLS FOR A PRESENTLY-EXISTING EMPLOYMENT RELATION AT THE TIME THE
DISPUTE ARISES.  FN8  ACCORDING TO THIS VIEW, THE TERM WOULD NOT COVER
A SITUATION, SUCH AS PRESENTED HERE, WHERE THE CONTROVERSY PRECEDES THE
EMPLOYMENT.  RESPONDENTS WOULD JUSTIFY THIS RESTRICTED CONSTRUCTION ON
THE GROUND THAT THE UNEMPLOYMENT COMPENSATION LAW IS REMEDIAL
LEGISLATION, AND ANY PROVISION LIMITING BENEFITS UNDER THE ACT SHOULD
BE NARROWLY INTERPRETED. 

THE TERM "LABOR DISPUTE" IS NOT DEFINED IN THE STATUTE.  THE TERM
APPEARS IN THE ACT IN ONE OTHER CONNECTION, HOWEVER.  SECTION
5(C)(2)(A) PROVIDES THAT BENEFITS UNDER THE ACT WILL NOT BE DENIED ANY
INDIVIDUAL, OTHERWISE ELIGIBLE, WHO REFUSES TO ACCEPT NEW WORK "IF THE
POSITION OFFERED IS VACANT DUE DIRECTLY TO A STRIKE, LOCKOUT, OR OTHER
LABOR DISPUTE."  THE SOCIAL SECURITY ACT OF 1935  FN9  REQUIRES THAT
THE STATE OR TERRITORIAL LAW CONTAIN A PROVISION TO THIS EFFECT BEFORE
THE LEGISLATION CAN BE APPROVED BY THE SOCIAL SECURITY BOARD. 
OBVIOUSLY, FOR THE PURPOSES OF SEC. 5(C)(2)(A), THE TERM, "LABOR
DISPUTE," HAS A BROADER MEANING THAN THAT ATTRIBUTED TO IT BY
RESPONDENTS.  UNLESS THE TERRITORIAL LEGISLATURE INTENDED TO GIVE A
DIFFERENT MEANING TO THE SAME LANGUAGE APPEARING IN ANOTHER SUBDIVISION
OF THE SAME SECTION, THE TERM MUST BE GIVEN A BROADER MEANING THAN THAT
CONTENDED FOR BY THE RESPONDENTS, FOR THE PURPOSES OF SEC. 5(D) AS
WELL.  WE NEED NOT DETERMINE WHETHER "LABOR DISPUTE" MUST IN ALL CASES
BE CONSTRUED AS BROADLY AS IT IS DEFINED IN THE NORRIS-LAGUARDIA ACT
FN10  AND THE NATIONAL LABOR RELATIONS ACT.  FN11  BUT HERE THERE WAS
FULLSCALE CONTROVERSY.  COMPANIES ENGAGED IN CARRYING ON A SEASONAL
BUSINESS WERE RANGED AGAINST A UNION REPRESENTING SEASONAL WORKERS WHO
HAD BEEN EMPLOYED BY THE COMPANIES IN THE PREVIOUS YEAR.  DISPUTE THERE
CERTAINLY WAS; AND THE SUBJECT OF THAT DISPUTE CONSISTED OF MATTERS
USUALLY CONTESTED IN LABOR DISPUTES AS THAT TERM IS NORMALLY UNDERSTOOD
N12.  SINCE WE FIND NOTHING TO INDICATE THAT THE TERRITORIAL
LEGISLATURE INTENDED A CONTRARY RESULT, WE CONCLUDE THAT THE COMMISSION
MIGHT PROPERLY FIND A "LABOR DISPUTE" HERE PRESENTED WITHIN THE MEANING
OF SEC. 5(D) OF THE ALASKA ACT. 

WE THINK THAT THERE IS EVIDENCE IN THE RECORD TO SUPPORT THE
COMMISSION'S CONCLUSION THAT RESPONDENTS' UNEMPLOYMENT WAS "DUE" TO A
LABOR DISPUTE INSOFAR AS THAT HOLDING RELATES TO THE INDIVIDUAL
RESPONDENTS EMPLOYED IN 1939 BY THE ALASKA PACKERS ASSOCIATION AND THE
RED SALMON CANNING COMPANY.  AT THE HEARINGS BEFORE THE REFEREE, THE
RESPONDENTS ATTEMPTED TO ESTABLISH THAT THE COMPANIES CALLED OFF THEIR
1940 OPERATIONS FOR REASONS OTHER THAN THEIR INABILITY TO NEGOTIATE A
SATISFACTORY LABOR AGREEMENT.  IT WAS ARGUED, FOR EXAMPLE, THAT THE
COMPANIES FEARED A POOR CATCH AS A RESULT OF GOVERNMENTAL RESTRICTIONS
ON FISHING APPLICABLE TO THE 1940 SEASON.  THE EVIDENCE ADDUCED BEFORE
THE REFEREE INDICATES THAT BOTH OF THE ABOVE-MENTIONED COMPANIES MADE
EXTENSIVE PREPARATIONS FOR THE 1940 OPERATIONS.  IN ANTICIPATION,
EQUIPMENT AND SUPPLIES OF THE VALUE OF SEVERAL HUNDRED THOUSAND DOLLARS
WERE PURCHASED.  SHIPS WERE PREPARED AND HELD IN READINESS FOR THE
EXPEDITIONS.  THE REFEREE FOUND THAT THESE COMPANIES NEGOTIATED IN GOOD
FAITH AND FAILED TO OPERATE IN ALASKA DURING THE 1940 SEASON ONLY
BECAUSE OF THEIR INABILITY TO NEGOTIATE SATISFACTORY LABOR AGREEMENTS
BEFORE THE PASSING OF THE DEADLINE DATES.  THERE IS EVIDENCE THAT THE
ALASKA PACKERS ASSOCIATION EXPECTED TO HIRE ABOUT TWO-THIRDS THE NUMBER
OF WORKERS IN 1940 IT HAD EMPLOYED IN 1939.  BUT THERE IS NOTHING IN
THE RECORD TO ESTABLISH THAT ANY OF THE CLAIMANTS IN THIS ACTION WOULD
HAVE BEEN UNEMPLOYED AS A RESULT OF THIS CONTEMPLATED CURTAILMENT IN
ACTIVITY, OR, IF ANY OF THE RESPONDENTS WOULD HAVE BEEN AFFECTED, WHICH
OF THEIR NUMBER WOULD HAVE BEEN UNEMPLOYED.  IT APPEARS THAT THE RED
SALMON CANNING COMPANY EXPECTED TO USE THE SAME NUMBER OF WORKERS IN
1940 AS IN 1939, OR POSSIBLY A FEW MORE.  UNDER THESE CIRCUMSTANCES, WE
THINK THAT THE COMMISSION'S FINDING THAT THE UNEMPLOYMENT WAS "DUE" TO
THE LABOR DISPUTE SHOULD STAND INSOFAR AS IT RELATES TO THE CLAIMANTS
INDICATED. 

BUT A DIFFERENT SITUATION IS PRESENTED WITH REFERENCE TO THE
RESPONDENTS EMPLOYED BY THE ALASKA SALMON COMPANY IN 1939.  THAT
COMPANY HAS AN ESTABLISHMENT ONLY AT BRISTOL BAY.  ON APRIL 30, THREE
DAYS BEFORE THE DEADLINE RELATING TO THE BRISTOL BAY OPERATIONS, ALASKA
SALMON WITHDREW FROM THE NEGOTIATIONS WITH THE UNION AND ANNOUNCED THAT
IT WAS UNABLE TO SEND AN EXPEDITION TO ALASKA IN 1940.  THE REFEREE
FOUND THAT THE WITHDRAWAL WAS CAUSED PRIMARILY BY FACTORS OTHER THAN
THE COMPANY'S INABILITY TO NEGOTIATE A SATISFACTORY LABOR CONTRACT.  AT
THE HEARINGS BEFORE THE REFEREE, COUNSEL FOR THE COMPANY STIPULATED
THAT, EVEN THOUGH THE OTHER COMPANIES HAD NEGOTIATED A LABOR AGREEMENT
WITH THE UNION BEFORE THE DEADLINE DATE, ALASKA SALMON WOULD HAVE
CONDUCTED NO OPERATIONS OUT OF SAN FRANCISCO IN 1940 AFTER ITS
WITHDRAWAL FROM NEGOTIATIONS.  WE CONCLUDE THAT THE RECORD DOES NOT
SUPPORT THE FINDING OF THE COMMISSION THAT THE RESPONDENTS EMPLOYED BY
THE ALASKA SALMON COMPANY IN 1939 WERE UNEMPLOYED "DUE" TO A LABOR
DISPUTE AT THE ESTABLISHMENT AT WHICH LAST EMPLOYED. 

RESPONDENTS URGE THAT, ASSUMING THEIR UNEMPLOYMENT WAS DUE TO A LABOR
DISPUTE, THERE WAS NO LABOR DISPUTE IN ACTIVE PROGRESS," WITHIN THE
MEANING OF THE ACT, AFTER THE PASSAGE OF THE DEADLINE DATES.  IT IS
ARGUED THAT WHEN THE EXPEDITIONS WERE ABANDONED BY THE COMPANIES, THE
DISPUTE MUST NECESSARILY HAVE TERMINATED SINCE THERE WAS NO POSSIBLE
WAY IN WHICH NEGOTIATIONS COULD HAVE BROUGHT ABOUT A SETTLEMENT. IT
SHOULD BE OBSERVED, HOWEVER, THAT THE RECORD DOES NOT REVEAL THAT
NEGOTIATIONS ABRUPTLY TERMINATED WITH THE PASSING OF THE LAST DEADLINE
DATE.  CONFERENCES CONTINUED AT SEATTLE IN WHICH BOTH THE COMPANIES AND
THE UNION WERE REPRESENTED.  THE RESPONDENTS CONSIDERED THE
NEGOTIATIONS SUFFICIENTLY ALIVE TO MAKE AN OFFER OF TERMS AT LEAST AS
LATE AS MAY 29.  EVEN IF IT BE ASSUMED THAT AT SOME TIME WITHIN THE
EIGHT-WEEK PERIOD OF DISQUALIFICATION THE POINT WAS REACHED WHEN ALL
POSSIBILITY OF SETTLEMENT DISAPPEARED, IT DOES NOT FOLLOW THAT THE
COMMISSION'S FINDING OF A DISPUTE IN "ACTIVE PROGRESS" MUST BE
OVERTURNED.  HERE, AS IN LABOR BOARD V. HEARST PUBLICATIONS, INC., 322
U.S. 111, 131(1944), THE QUESTION PRESENTED "IS ONE OF SPECIFIC
APPLICATION OF A BROAD STATUTORY TERM IN A PROCEEDING IN WHICH THE
AGENCY ADMINISTERING THE STATUTE MUST DETERMINE IT INITIALLY."  TO
SUSTAIN THE COMMISSION'S APPLICATION OF THIS STATUTORY TERM, WE NEED
NOT FIND THAT ITS CONSTRUCTION IS THE ONLY REASONABLE ONE, OR EVEN THAT
IT IS THE RESULT WE WOULD HAVE REACHED HAD THE QUESTION ARISEN IN THE
FIRST INSTANCE IN JUDICIAL PROCEEDINGS.  THE "REVIEWING COURT'S
FUNCTION IS LIMITED."  ALL THAT IS NEEDED TO SUPPORT THE COMMISSION'S
INTERPRETATION IS THAT IT HAS "WARRANT IN THE RECORD" AND A "REASONABLE
BASIS IN LAW."  LABOR BOARD V. HEARST PUBLICATIONS, INC., SUPRA;
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125(1939). 

APPLYING THESE TESTS, WE ARE UNABLE TO SAY THAT THE COMMISSION'S
CONSTRUCTION WAS IRRATIONAL OR WITHOUT SUPPORT IN THE RECORD.  THE
COMMISSION APPARENTLY VIEWS A DISPUTE AS "ACTIVE" DURING THE
CONTINUANCE OF A WORK STOPPAGE INDUCED BY A LABOR DISPUTE.  THAT AGENCY
MIGHT REASONABLY CONCLUDE THAT THE UNEMPLOYMENT RESULTING FROM SUCH
WORK STOPPAGE IS NOT OF THE "INVOLUNTARY" NATURE WHICH THE STATUTE WAS
DESIGNED TO ALLEVIATE, AS INDICATED BY THE STATEMENT OF PUBLIC POLICY
INCORPORATED IN THE ACT BY THE TERRITORIAL LEGISLATURE.  FN13  WE SEE
NOTHING IN SUCH A VIEW TO REQUIRE OUR SUBSTITUTING A DIFFERENT
CONSTRUCTION FROM THAT MADE BY THE COMMISSION ENTRUSTED WITH THE
RESPONSIBILITY OF ADMINISTERING THE STATUTE.  FN14 

NOR CAN WE ACCEPT THE ARGUMENT OF THE MAJORITY OF THE COURT OF
APPEALS THAT SINCE NEGOTIATIONS BETWEEN THE COMPANIES AND THE WORKERS
WERE CARRIED ON IN SAN FRANCISCO AND SEATTLE, THE DISPUTE COULD NOT BE
SAID TO BE "AT" THE ALASKAN ESTABLISHMENTS AS REQUIRED BY THE STATUTE. 
SO FAR AS WE ARE ABLE TO DETERMINE, THIS ISSUE WAS INJECTED FOR THE
FIRST TIME BY THE OPINION OF THE MAJORITY OF THE COURT OF APPEALS.  THE
CONTENTION DOES NOT SEEM TO HAVE BEEN RAISED OR PRESSED BY RESPONDENTS
UP TO THAT POINT.  THE RESPONSIBILITY OF APPLYING THE STATUTORY
PROVISIONS TO THE FACTS OF THE PARTICULAR CASE WAS GIVEN IN THE FIRST
INSTANCE TO THE COMMISSION.  A REVIEWING COURT USURPS THE AGENCY'S
FUNCTION WHEN IT SETS ASIDE THE ADMINISTRATIVE DETERMINATION UPON A
GROUND NOT THERETOFORE PRESENTED AND DEPRIVES THE COMMISSION OF AN
OPPORTUNITY TO CONSIDER THE MATTER, MAKE ITS RULING, AND STATE THE
REASONS FOR ITS ACTION.  FN15  NOR DO WE FIND THE ARGUMENT ADVANCED
BELOW CONVINCING ON ITS MERITS.  IT IS CLEAR THAT THE SUBJECT MATTER OF
THE DISPUTE RELATED TO THE OPERATION OF THE ALASKAN ESTABLISHMENTS.  AS
A RESULT OF THE DISPUTE, THE NORMAL ACTIVITIES INVOLVED IN CATCHING AND
CANNING SALMON WERE NOT CARRIED ON THROUGHOUT THE 1940 SEASON AT ANY OF
THOSE ESTABLISHMENTS.  WE DO NOT CONSIDER SIGNIFICANT THE FACT THAT THE
COMPANIES AND THE UNION DID NOT NEGOTIATE AT THE CANNERIES OR ON THE
SHIPS IN ALASKAN WATERS.  A LEGISLATURE FAMILIAR WITH THE NATURE OF
SEASONAL OPERATIONS CARRIED ON IN THE TERRITORY COULD HARDLY HAVE BEEN
UNAWARE OF THE FACT THAT COMPANIES AND WORKERS CUSTOMARILY CARRIED ON
NEGOTIATIONS FAR DISTANT FROM THE ALASKAN ESTABLISHMENTS.  IT SEEMS
UNLIKELY THAT IT WAS INTENDED THAT THIS ORDINARY AND USUAL PROCEDURE
SHOULD DEFEAT THE DISQUALIFICATION FOR BENEFITS INCORPORATED IN THE
ACT.  FURTHERMORE, IT SHOULD BE OBSERVED THAT THE RESPONDENT UNION
VOLUNTARILY ENTERED INTO THE NEGOTIATIONS CONDUCTED AT SAN FRANCISCO
AND SEATTLE AND AT NO TIME CHALLENGED THE PROPRIETY OF THIS PRACTICE. 
THUS IF WE ASSUME WITH RESPONDENTS THAT THIS ISSUE IS PROPERLY
PRESENTED FOR CONSIDERATION, WE CONCLUDE THAT UNDER THE CIRCUMSTANCES
OF THIS CASE THE DISPUTE WAS "AT THE FACTORY, ESTABLISHMENT, OR OTHER
PREMISES" IN THE SENSE INTENDED BY THE TERRITORIAL LEGISLATURE. 

FOR THE REASONS STATED, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
IS AFFIRMED INSOFAR AS IT HOLDS THAT THE STATUTORY EIGHT-WEEK PERIOD OF
DISQUALIFICATION IS INAPPLICABLE TO THE INDIVIDUAL RESPONDENTS EMPLOYED
BY THE ALASKA SALMON COMPANY IN 1939.  IN ALL OTHER PARTICULARS, THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE CASE
REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO REMAND FOR FURTHER
PROCEEDINGS PURSUANT TO THIS OPINION. 

FN1  EXTRAORDINARY SESSION LAWS OF ALASKA, 1937, CHAPTER 4 AS AMENDED
BY CHAPTERS 1 AND 51, SESSION LAWS OF ALASKA, 1939. 

FN2  THE ALASKA STATUTE IS PART OF THE LEGISLATIVE SCHEME FOR
UNEMPLOYMENT COMPENSATION INDUCED BY THE PROVISIONS OF THE SOCIAL
SECURITY ACT OF 1935.  49 STAT. 620, 626-627, 640.  IT IS SAID THAT
FORTY-THREE STATES AND TERRITORIES HAVE PROVISIONS SIMILAR TO THOSE IN
THE ALASKA LAW DISQUALIFYING FROM UNEMPLOYMENT BENEFITS PERSONS
UNEMPLOYED DUE TO A LABOR DISPUTE. 

FN3  AS PROVIDED BY BENEFIT REGULATION NO. 10 OF THE ALASKA
UNEMPLOYMENT COMPENSATION COMMISSION, THE SEASON AT KARLUK EXTENDS FROM
APRIL 5 TO SEPTEMBER 5, AT CHIGNIK FROM APRIL 1 TO SEPTEMBER 10, AND AT
BRISTOL BAY FROM MAY 5 TO AUGUST 25. 

FN4  SECTION 6(C) AND SEC. 6(D), CHAPTER 1, SESSION LAWS OF ALASKA,
1939. 

FN5  THE REFEREE FOUND THAT THERE HAD BEEN UNEMPLOYMENT DUE TO A
LABOR DISPUTE IN ACTIVE PROGRESS AT KARLUK FROM APRIL 5, WHEN THE
SEASON OPENED, TO APRIL 10, THE DEADLINE DATE, AND AT CHIGNIK FROM
APRIL 1 TO APRIL 12.  SINCE THE DEADLINE DATE WITH RESPECT TO BRISTOL
BAY WAS SET TWO DAYS BEFORE THE SEASON OPENED THERE, THE REFEREE FOUND
THAT THERE WAS NO DISPUTE IN ACTIVE PROGRESS AT THOSE PLANTS. 

FN6  THIS PROCEDURE WAS IN PURSUANCE OF SEC. 6(E) OF THE ACT AS
AMENDED BY CHAPTER 1, SESSION LAWS OF ALASKA, 1939. 

FN7  SECTION 6(I) OF THE ACT PROVIDES THAT WITHIN THIRTY DAYS AFTER
THE DECISION OF THE COMMISSION HAS BECOME FINAL, ANY PARTY AGGRIEVED
MAY SECURE JUDICIAL REVIEW IN THE UNITED STATES DISTRICT COURT.  THE
FINDINGS OF THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY EVIDENCE
AND IN THE ABSENCE OF FRAUD, SHALL BE CONCLUSIVE, AND THE JURISDICTION
OF SAID COURT SHALL BE CONFINED TO QUESTIONS OF LAW." 

FN8  A NUMBER OF STATE COURTS IN CONSTRUING SIMILAR LEGISLATION HAVE
FOUND "LABOR DISPUTES" TO HAVE EXISTED IN SITUATIONS WHERE NO
CONTRACTUAL EMPLOYMENT RELATION PRESENTLY EXISTED.  EACH OF THESE CASES
INVOLVED A WORK STOPPAGE IN THE INTERVAL BETWEEN THE EXPIRATION OF AN
OLD LABOR CONTRACT AND THE CONSUMMATION OF A NEW AGREEMENT.  MINERS IN
GENERAL GROUP V. HIX, 123 W. VA. 637, 17 S.E.2D 810(1941); EX PARTE
PESNELL, 240 ALA. 457, 199 SO. 726(1940); BARNES V. HALL, 285 KY. 160,
146 S.W.2D 929(1940); BLOCK COAL & COKE CO. V. UNITED MINE WORKERS OF
AMERICA, 177 TENN. 247, 148 S.W.2D 364, 149 S.W.2D 469(1941); SANDOVAL
V. INDUSTRIAL COMM'N, 110 COLO. 108, 130 P.2D 930(1942). 

FN9  49 STAT. 640, 26 U.S.C. SEC. 1603(5)(A). 

FN10  47 STAT. 70, 29 U.S.C. SEC. 101.  THE NORRIS-LAGUARDIA ACT
CONTAINS THE FOLLOWING DEFINITION:  "THE TERM 'LABOR DISPUTE' INCLUDES
ANY CONTROVERSY CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT, OR
CONCERNING THE ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING,
FIXING, MAINTAINING, CHANGING, OR SEEKING TO ARRANGE TERMS OR
CONDITIONS OF EMPLOYMENT, REGARDLESS OF WHETHER OR NOT THE DISPUTANTS
STAND IN THE PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE."  47 STAT.
73, 29 U.S.C. SEC. 113(C).  A NUMBER OF STATE COURTS HAVE FOUND THIS
AND THE SIMILAR DEFINITION IN THE NATIONAL LABOR RELATIONS ACT
PERSUASIVE IN THEIR CONSTRUCTION OF THE TERM APPEARING IN UNEMPLOYMENT
COMPENSATION LEGISLATION SIMILAR TO THE ALASKA ACT.  MINERS IN GENERAL
GROUP V. HIX, 123 W. VA. 637, 17 S.E.2D 810(1941); BARNES V. HALL, 285
KY. 160, 146 S.W.2D 929(1940); EX PARTE PESNELL, 240 ALA. 457, 199 SO.
726(1940); SANDOVAL V. INDUSTRIAL COMM'N, 110 COLO. 108, 130 P.2D
930(1942).  THE ALABAMA LEGISLATURE INCORPORATED THE DEFINITION
APPEARING IN THE NORRIS-LAGUARDIA ACT INTO THE ALABAMA UNEMPLOYMENT
COMPENSATION ACT.  ALA. CODE, TIT. 26 SEC. 214(A). 

FN11  49 STAT. 449, 29 U.S.C. SEC. 151. 

FN12  THE EXAMINER, THE REFEREE, THE COMMISSION, THE DISTRICT COURT,
AND PRESUMABLY THE CIRCUIT COURT OF APPEALS ALL FOUND A "LABOR DISPUTE"
TO HAVE EXISTED, AT LEAST BEFORE THE ARRIVAL OF THE DEADLINE DATES. 

FN13  THE "DECLARATION OF TERRITORIAL PUBLIC POLICY" STATES THAT
"INVOLUNTARY UNEMPLOYMENT IS ...  A SUBJECT OF GENERAL INTEREST AND
CONCERN WHICH REQUIRES APPROPRIATE ACTION BY THE LEGISLATURE."  IT IS
FURTHER STATED THAT THE PUBLIC WELFARE DEMANDS THE COMPULSORY SETTING
ASIDE OF UNEMPLOYMENT RESERVES "FOR THE BENEFIT OF PERSONS UNEMPLOYED
THROUGH NO FAULT OF THEIR OWN."  CHAPTER 4, EXTRAORDINARY SESSION LAWS
OF ALASKA, 1937. 

SEVERAL STATE COURTS HAVE CONCLUDED THAT THE DISQUALIFICATION
RELATING TO UNEMPLOYMENT DUE TO A LABOR DISPUTE IS A REFLECTION OF THE
BROAD POLICY OF THE LEGISLATION TO COMPENSATE ONLY PERSONS
INVOLUNTARILY UNEMPLOYED.  BARNES V. HALL, 285 KY. 160, 146 S.W.2D
929(1940); DESHLER BROOM FACTORY V. KINNEY, 140 NEB. 889, 2 N.W.2D
332(1942); SANDOVAL V. INDUSTRIAL COMMISSION, 110 COLO. 108, 130 P.2D
930(1942). 

FN14  LABOR BOARD V. HEARST PUBLICATIONS, SUPRA; ROCHESTER TELEPHONE
CORP. V. UNITED STATES, SUPRA.  CF. SOCIAL SECURITY BOARD V. NIEROTKO,
327 U.S. 358(1946). 

FN15  SECTION 6(H) OF THE ACT STATES THAT JUDICIAL REVIEW OF THE
COMMISSION'S DECISION "SHALL BE PERMITTED ONLY AFTER ANY PARTY CLAIMING
TO BE AGGRIEVED THEREBY HAS EXHAUSTED HIS ADMINISTRATIVE REMEDIES AS
PROVIDED BY THIS ACT."  CF. MYERS V. BETHLEHEM SHIPBUILDING CORP., 303
U.S. 41, 50-51(1938); REGAL KNITWEAR CO. V. LABOR BOARD, 324 U.S. 9,
13(1945); PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 196
197(1941). 
..END :




















VANSTON COMMITTEE V. GREEN, 329 U.S. 156 


ARGUED OCTOBER 22, 1946.  - DECIDED DECEMBER 9, 1946.  - 151 F.2D 470,
AFFIRMED. 


IN A REORGANIZATION PROCEEDING UNDER CHAPTER X OF THE BANKRUPTCY ACT,
CLAIM WAS MADE UNDER A COVENANT IN A FIRST MORTGAGE INDENTURE FOR
INTEREST ON INTEREST WHICH HAD ACCRUED AFTER PAYMENTS BY THE DEBTOR
CORPORATION HAD BEEN SUSPENDED BY A COURT ORDER IN AN EQUITY
RECEIVERSHIP, WHICH WAS SUCCEEDED BY A REORGANIZATION PROCEEDING UNDER
SEC. 77B AND LATER BY THE CHAPTER X PROCEEDING.  THE CORPORATION WAS
INSOLVENT; ITS ASSETS WERE SUFFICIENT TO PAY THE FIRST MORTGAGE
BONDHOLDERS IN FULL, INCLUDING THE INTEREST ON INTEREST; BUT TO ALLOW
PAYMENT OF THE INTEREST ON INTEREST WOULD GREATLY REDUCE THE SHARE OF
THE SUBORDINATE CREDITORS IN THE REORGANIZED CORPORATION.  HELD: 

1.  SINCE THE INTEREST WAS LEFT UNPAID BY ORDER OF THE COURT,
IMPOSITION OF INTEREST ON THAT UNPAID INTEREST WOULD BE INEQUITABLE. 
P. 165. 

2.  IT IS NOT NECESSARY FOR THIS COURT TO PASS ON THE QUESTION OF
POSSIBLE CONFLICTS BETWEEN THE LAWS OF DIFFERENT STATES HAVING SOME
INTEREST IN THE INDENTURE TRANSACTION OR UPON THE VALIDITY OF THE
PROVISION FOR THE PAYMENT OF INTEREST ON INTEREST UNDER APPLICABLE
STATE LAW; BECAUSE A BANKRUPTCY COURT, IN DETERMINING WHAT CLAIMS ARE
ALLOWABLE AND HOW A DEBTOR'S ASSETS SHALL BE DISTRIBUTED, DOES NOT
APPLY THE LAW OF THE STATE WHERE IT SITS, BUT ADMINISTERS AND ENFORCES
THE BANKRUPTCY ACT IN ACCORDANCE WITH EQUITABLE PRINCIPLES.  P. 162. 

3.  THE GENERAL RULE IN BANKRUPTCY AND IN FEDERAL EQUITY RECEIVERSHIP
HAS LONG BEEN THAT INTEREST ON THE DEBTOR'S OBLIGATIONS CEASES TO
ACCRUE AT THE BEGINNING OF PROCEEDINGS, SINCE EXACTION OF INTEREST
WHERE POWER OF A DEBTOR TO PAY WAS SUSPENDED BY LAW WOULD BE
INEQUITABLE.  P. 163. 

4.  SIMPLE INTEREST ON SECURED CLAIMS ACCRUING AFTER THE PETITION WAS
FILED IS DENIED UNLESS THE SECURITY IS WORTH MORE THAN THE SUM OF
PRINCIPAL AND INTEREST DUE.  P. 164. 

5.  TO ALLOW A SECURED CREDITOR INTEREST WHERE HIS SECURITY IS WORTH
LESS THAN THE VALUE OF HIS DEBT WOULD BE INEQUITABLE TO UNSECURED
CREDITORS.  P. 164. 

6.  BUT, WHERE AN ESTATE IS AMPLE TO PAY ALL CREDITORS AND TO PAY
INTEREST EVEN AFTER THE PETITION WAS FILED, EQUITABLE CONSIDERATIONS
PERMIT PAYMENT OF THIS ADDITIONAL INTEREST TO THE SECURED CREDITOR
RATHER THAN TO THE DEBTOR.  P. 164. 

7.  THE TOUCHSTONE OF EACH DECISION ON ALLOWANCE OF INTEREST IN
BANKRUPTCY, RECEIVERSHIP AND REORGANIZATION HAS BEEN A BALANCE OF
EQUITIES BETWEEN CREDITOR AND CREDITOR OR BETWEEN CREDITORS AND THE
DEBTOR.  P. 165. 

8.  THAT THIS PROCEEDING HAS MOVED FROM EQUITY RECEIVERSHIP THROUGH
SEC. 77B TO CHAPTER X IN THE WAKE OF STATUTORY CHANGE DOES NOT MAKE
THESE EQUITABLE CONSIDERATIONS INAPPLICABLE.  P. 165. 

9.  IT WOULD NOT BE CONSISTENT WITH EQUITABLE PRINCIPLES TO ENRICH
THE FIRST MORTGAGE BONDHOLDERS AT THE EXPENSE OF THE SUBORDINATE
CREDITORS BECAUSE OF A FAILURE TO PAY WHEN PAYMENT HAD BEEN PROHIBITED
BY A COURT ORDER ENTERED FOR THE JOINT BENEFIT OF DEBTOR, CREDITORS,
AND THE PUBLIC.  PP. 165-167. 

VANSTON BONDHOLDERS PROTECTIVE COMMITTEE V. GREEN ET AL. 

NO. 42.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT* . 

*TOGETHER WITH NO. 43, VANSTON BONDHOLDERS PROTECTIVE COMMITTEE V.
EARLY ET AL.; NO. 44, VANHORN BONDHOLDERS PROTECTIVE COMMITTEE V. GREEN
ET AL.; AND NO. 45, VANHORN BONDHOLDERS PROTECTIVE COMMITTEE V. EARLY
ET AL., ON CERTIORARI TO THE SAME COURT. 

A DISTRICT COURT APPOINTED AN EQUITY RECEIVER FOR A CORPORATION AND
SUSPENDED PAYMENT OF ITS DEBTS.  THE EQUITY RECEIVERSHIP WAS SUCCEEDED
BY REORGANIZATION PROCEEDINGS UNDER SEC. 77B OF THE BANKRUPTCY ACT AND
LATER BY A CHAPTER X PROCEEDING.  THE DISTRICT COURT HELD THE FIRST
MORTGAGE BONDHOLDERS ENTITLED TO INTEREST ON INTEREST ACCRUING AFTER
THE RECEIVERSHIP, ON THE THEORY THAT THE VALIDITY OF THE COVENANT
THEREFOR WAS DETERMINED BY NEW YORK LAW AND THAT IT WAS VALID
THEREUNDER.  HOLDING THAT NEW YORK LAW PROHIBITED COVENANTS FOR PAYMENT
OF INTEREST ON INTEREST, THE CIRCUIT COURT OF APPEALS REVERSED.  151
F.2D 470.  THIS COURT GRANTED CERTIORARI.  327 U.S. 774.  AFFIRMED ON
OTHER GROUNDS.  P. 167. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

DECEMBER 2, 1930, A KENTUCKY DISTRICT COURT APPOINTED AN EQUITY
RECEIVER OF INLAND GAS CORPORATION TO TAKE COMPLETE AND EXCLUSIVE
CONTROL, POSSESSION, AND CUSTODY OF ALL OF INLAND'S PROPERTIES, AND
ENJOINED INLAND'S OFFICERS FROM PAYING ITS DEBTS.  AT THAT TIME THERE
WAS NO INTEREST UNPAID ON INLAND'S FIRST MORTGAGE BONDS.  FEBRUARY 1,
1931, SEMIANNUAL INTEREST COUPONS FELL DUE ON THESE BONDS.  THE DEBTOR
COULD NOT PAY; THE COURT DID NOT DIRECT THE RECEIVER TO PAY.  THE
INDENTURE TRUSTEE, ACTING UNDER THE TERMS OF THE INDENTURE, PROMPTLY
DECLARED THE ENTIRE PRINCIPAL DUE AND PAYABLE DESPITE THE PREVIOUS
ASSUMPTION OF CUSTODY OF THE ESTATE BY THE FEDERAL COURT.  IN 1935, THE
SAME DISTRICT COURT APPROVED A CREDITOR'S PETITION FOR REORGANIZATION
UNDER SEC. 77B OF THE BANKRUPTCY ACT, AND AT A SUBSEQUENT DATE THE
REORGANIZATION WAS CONTINUED AS A CHAPTER X PROCEEDING.  FN1  THE
INDENTURE PROVIDES FOR PAYMENT OF INTEREST ON UNPAID INTEREST.  INLAND
IS INSOLVENT, BUT ITS ASSETS ARE SUFFICIENT TO PAY THE FIRST MORTGAGE
BONDHOLDERS IN FULL, INCLUDING THE INTEREST ON INTEREST.  SHOULD
INTEREST ON INTEREST BE PAID, HOWEVER, SUBORDINATE CREDITORS WOULD
RECEIVE A GREATLY REDUCED SHARE IN THE REORGANIZED CORPORATION.  THESE
LATTER CONCEDE THAT THE FIRST MORTGAGE BONDHOLDERS SHOULD RECEIVE
SIMPLE INTEREST ON THE PRINCIPAL DUE THEM, BUT CHALLENGE THEIR RIGHT TO
BE PAID INTEREST ON INTEREST  FN2  WHICH FELL DUE AFTER THE COURT TOOK
CHARGE OF INLAND, AND WHICH INTEREST THE COURT, OUT OF CONSIDERATION
FOR ORDERLY AND FAIR ADMINISTRATION OF THE ESTATE, DIRECTED THE
RECEIVER NOT TO PAY ON THE DUE DATE.  IT IS THIS CONTROVERSY WHICH WE
MUST DETERMINE. 

THE FIRST MORTGAGE INDENTURE DOCUMENT WAS WRITTEN AND SIGNED IN NEW
YORK, DESIGNATED A NEW YORK BANK AS TRUSTEE, AND PROVIDED FOR PAYMENT
OF THE BONDS AND ATTACHED INTEREST COUPONS AT THE OFFICE OF THE TRUSTEE
IN NEW YORK OR, AT THE OPTION OF THE BEARER, AT A BANK IN CHICAGO,
ILLINOIS.  A GROUP OF INVESTMENT BANKERS UNDERWROTE THE ISSUE, SOLD THE
BONDS TO THE PUBLIC, AND RECEIVED A PERCENTAGE OF THE PROCEEDS AND
ADDITIONAL COMPENSATION FOR THEIR SERVICES.  INLAND WAS ORGANIZED UNDER
THE CORPORATION LAWS OF DELAWARE.  ITS PRINCIPAL PLACE OF BUSINESS WAS
IN KENTUCKY, AND THE PROPERTY MORTGAGED WAS LOCATED IN THAT STATE. 

UNDER THESE CIRCUMSTANCES THE DISTRICT COURT WAS OF THE OPINION THAT
IT MUST ALLOW THE CLAIM FOR INTEREST ON INTEREST IF THE INDENTURE
COVENANT WAS VALID; THAT ITS VALIDITY MUST BE DETERMINED BY THE LAW OF
NEW YORK, BECAUSE THE INDENTURE WAS SIGNED AND THE BONDS WERE PAYABLE
THERE; AND THAT THE COVENANT WAS VALID THERE.  ACCORDINGLY, THE FIRST
MORTGAGE BONDHOLDERS WERE HELD ENTITLED TO INTEREST ON INTEREST. 
HOLDING THAT NEW YORK PROHIBITED COVENANTS FOR PAYMENT OF INTEREST ON
INTEREST, THE CIRCUIT COURT OF APPEALS REVERSED.  151 F.2D 470.  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTIONS RAISED. 

THE CIRCUIT COURT OF APPEALS THOUGHT THE BANKRUPTCY COURT MUST ALLOW
OR DISALLOW THE CLAIM FOR INTEREST ON INTEREST ACCORDING TO WHETHER THE
COVENANT TO PAY IT WAS VALID OR INVALID AS BETWEEN THE PARTIES TO THAT
COVENANT.  IT CONSIDERED THE COVENANT INVALID AND THEREFORE
UNENFORCEABLE IN BANKRUPTCY UPON TWO ALTERNATIVE ASSUMPTIONS.  FIRST,
IT ASSUMED THAT A CONTROLLING FEDERAL RULE REQUIRED THE BANKRUPTCY
COURT TO DETERMINE VALIDITY OR INVALIDITY OF THE CONTRACT BY LOOKING TO
THE LAW OF NEW YORK, THE STATE WHERE THE COURT FOUND THAT THE CONTRACT
WAS "MADE" AND PRIMARILY PAYABLE.  FN3  SECOND, SINCE THE BANKRUPTCY
COURT WAS SITTING IN KENTUCKY, IT SHOULD DETERMINE VALIDITY OF THE
COVENANT AS WOULD A KENTUCKY COURT.  REVIEWING KENTUCKY DECISIONS, THE
CIRCUIT COURT OF APPEALS CONCLUDED THAT KENTUCKY COURTS ALSO WOULD
APPLY NEW YORK SUBSTANTIVE LAW.  ARRIVING AT NEW YORK LAW BY BOTH
HYPOTHESES, THE CIRCUIT COURT OF APPEALS INTERPRETED THAT LAW AS
RENDERING THE COVENANT INVALID.  WE AGREE WITH THE CONCLUSION OF THE
CIRCUIT COURT OF APPEALS THAT THE CLAIM FOR INTEREST ON INTEREST SHOULD
NOT BE PERMITTED TO SHARE IN THE DEBTOR'S ASSETS, BUT DISAGREE WITH THE
REASONS GIVEN FOR THAT CONCLUSION. 

A PURPOSE OF BANKRUPTCY IS SO TO ADMINISTER AN ESTATE AS TO BRING
ABOUT A RATABLE DISTRIBUTION OF ASSETS AMONG THE BANKRUPT'S CREDITORS. 
WHAT CLAIMS OF CREDITORS ARE VALID AND SUBSISTING OBLIGATIONS AGAINST
THE BANKRUPT AT THE TIME A PETITION IN BANKRUPTCY IS FILED IS A
QUESTION WHICH, IN THE ABSENCE OF OVERRULING FEDERAL LAW, IS TO BE
DETERMINED BY REFERENCE TO STATE LAW.  FN4  BRYANT V. SWOFFORD BROS.,
214 U.S. 279, 290-291; SECURITY MORTGAGE CO. V. POWERS, 278 U.S. 149,
153-154.  BUT OBLIGATIONS, SUCH AS THE ONE HERE FOR INTEREST, OFTEN
HAVE SIGNIFICANT CONTACTS IN MANY STATES, SO THAT THE QUESTION OF WHICH
PARTICULAR STATE'S LAW SHOULD MEASURE THE OBLIGATION SELDOM LENDS
ITSELF TO SIMPLE SOLUTION.  IN DETERMINING WHICH CONTACT IS THE MOST
SIGNIFICANT IN A PARTICULAR TRANSACTION, COURTS CAN SELDOM FIND A
COMPLETE SOLUTION IN THE MECHANICAL FORMULAE OF THE CONFLICTS OF LAW. 
DETERMINATION REQUIRES THE EXERCISE OF AN INFORMED JUDGMENT IN THE
BALANCING OF ALL THE INTERESTS OF THE STATES WITH THE MOST SIGNIFICANT
CONTACTS IN ORDER BEST TO ACCOMMODATE THE EQUITIES AMONG THE PARTIES TO
THE POLICIES OF THOSE STATES.  CERTAINLY THE PART OF THIS TRANSACTION
WHICH TOUCHED NEW YORK, NAMELY, THAT THE INDENTURE CONTRACT WAS
WRITTEN, SIGNED, AND PAYABLE THERE, MAY BE A REASON WHY THAT STATE'S
LAW SHOULD GOVERN.  BUT APPARENTLY THE BONDS WERE SOLD TO PEOPLE ALL
OVER THE NATION.  AND KENTUCKY'S INTEREST IN HAVING ITS OWN LAWS GOVERN
THE OBLIGATION CANNOT BE MINIMIZED.  FOR THE PROPERTY MORTGAGED WAS
THERE; THE COMPANY'S BUSINESS WAS CHIEFLY THERE; ITS PRODUCTS WERE
WIDELY DISTRIBUTED THERE; AND THE PRICES PAID BY KENTUCKIANS FOR THOSE
PRODUCTS WOULD DEPEND, AT LEAST TO SOME EXTENT, ON THE STABILITY OF THE
COMPANY AS AFFECTED BY THE CARRYING CHARGES ON ITS DEBTS.  BUT WE NEED
NOT DECIDE WHICH, IF EITHER, OF THESE TWO STATES' LAWS GOVERN THE
CREATION AND SUBSISTENCE AND VALIDITY OF THE OBLIGATION FOR INTEREST ON
INTEREST HERE INVOLVED.  FOR ASSUMING, ARGUENDO, THAT THE OBLIGATION
FOR INTEREST ON INTEREST IS VALID UNDER THE LAW OF NEW YORK, KENTUCKY,
AND THE OTHER STATES HAVING SOME INTEREST IN THE INDENTURE TRANSACTION,
WE WOULD STILL HAVE TO DECIDE WHETHER ALLOWANCE OF THE CLAIM WOULD BE
COMPATIBLE WITH THE POLICY OF THE BANKRUPTCY ACT.  CF. KUEHNER V.
IRVING TRUST CO., 299 U.S. 445, 451. 

IN DETERMINING WHAT CLAIMS ARE ALLOWABLE AND HOW A DEBTOR'S ASSETS
SHALL BE DISTRIBUTED, A BANKRUPTCY COURT DOES NOT APPLY THE LAW OF THE
STATE WHERE IT SITS.  ERIE R.R. V. TOMPKINS, 304 U.S. 64, HAS NO SUCH
IMPLICATION.  THAT CASE DECIDED THAT A FEDERAL DISTRICT COURT ACQUIRING
JURISDICTION BECAUSE OF DIVERSITY OF CITIZENSHIP SHOULD ADJUDICATE
CONTROVERSIES AS IF IT WERE ONLY ANOTHER STATE COURT.  SEE HOLMBERG V.
ARMBRECHT, 327 U.S. 392.  BUT BANKRUPTCY COURTS MUST ADMINISTER AND
ENFORCE THE BANKRUPTCY ACT AS INTERPRETED BY THIS COURT IN ACCORDANCE
WITH AUTHORITY GRANTED BY CONGRESS TO DETERMINE HOW AND WHAT CLAIMS
SHALL BE ALLOWED UNDER EQUITABLE PRINCIPLES.  FN5  AND WE THINK AN
ALLOWANCE OF INTEREST ON INTEREST UNDER THE CIRCUMSTANCES SHOWN BY THIS
CASE WOULD NOT BE IN ACCORD WITH THE EQUITABLE PRINCIPLES GOVERNING
BANKRUPTCY DISTRIBUTIONS. 

WHEN AND UNDER WHAT CIRCUMSTANCES FEDERAL COURTS WILL ALLOW INTEREST
ON CLAIMS AGAINST DEBTORS' ESTATES BEING ADMINISTERED BY THEM HAS LONG
BEEN DECIDED BY FEDERAL LAW.  CF. BOARD OF COMM'RS OF JACKSON COUNTY V.
UNITED STATES, 308 U.S. 343; ROYAL INDEMNITY CO. V. UNITED STATES, 313
U.S. 289.  THE GENERAL RULE IN BANKRUPTCY AND IN EQUITY RECEIVERSHIP
HAS BEEN THAT INTEREST ON THE DEBTORS' OBLIGATIONS CEASES TO ACCRUE AT
THE BEGINNING OF PROCEEDINGS.  EXACTION OF INTEREST, WHERE THE POWER OF
A DEBTOR TO PAY EVEN HIS CONTRACTUAL OBLIGATIONS IS SUSPENDED BY LAW,
HAS BEEN PROHIBITED BECAUSE IT WAS CONSIDERED IN THE NATURE OF A
PENALTY IMPOSED BECAUSE OF DELAY IN PROMPT PAYMENT - A DELAY
NECESSITATED BY LAW IF THE COURTS ARE PROPERLY TO PRESERVE AND PROTECT
THE ESTATE FOR THE BENEFIT OF ALL INTERESTS INVOLVED.  THUS THIS COURT
HAS SAID:  "WE CANNOT AGREE THAT A PENALTY IN THE NAME OF INTEREST
SHOULD BE INFLICTED UPON THE OWNERS OF THE MORTGAGE LIEN FOR RESISTING
CLAIMS WHICH WE HAVE DISALLOWED.  AS A GENERAL RULE, AFTER PROPERTY OF
AN INSOLVENT PASSES INTO THE HANDS OF A RECEIVER OR OF AN ASSIGNEE IN
INSOLVENCY, INTEREST IS NOT ALLOWED ON THE CLAIMS AGAINST THE FUNDS. 
THE DELAY IN DISTRIBUTION IS THE ACT OF THE LAW; IT IS A NECESSARY
INCIDENT TO THE SETTLEMENT OF THE ESTATE."  THOMAS V. WESTERN CAR CO.,
149 U.S. 95, 116-117.  CF. AMERICAN IRON CO. V. SEABOARD AIR LINE, 233
U.S. 261.  COURTS HAVE FELT THAT IT WOULD BE INEQUITABLE FOR ANYONE TO
GAIN AN ADVANTAGE OR SUFFER A LOSS BECAUSE OF SUCH DELAY.  SEXTON V.
DREYFUS, 219 U.S. 339, 346.  ACCRUAL OF SIMPLE INTEREST ON UNSECURED
CLAIMS IN BANKRUPTCY WAS PROHIBITED IN ORDER THAT THE ADMINISTRATIVE
INCONVENIENCE OF CONTINUOUS RECOMPUTATION OF INTEREST CAUSING
RECOMPUTATION OF CLAIMS COULD BE AVOIDED.  MOREOVER, DIFFERENT
CREDITORS WHOSE CLAIMS BORE DIVERSE INTEREST RATES OR WERE PAID BY THE
BANKRUPTCY COURT ON DIFFERENT DATES WOULD SUFFER NEITHER GAIN NOR LOSS
CAUSED SOLELY BY DELAY.  FN6 

SIMPLE INTEREST ON SECURED CLAIMS ACCRUING AFTER THE PETITION WAS
FILED WAS DENIED UNLESS THE SECURITY WAS WORTH MORE THAN THE SUM OF
PRINCIPAL AND INTEREST DUE.  SEXTON V. DREYFUS, SUPRA.  TO ALLOW A
SECURED CREDITOR INTEREST WHERE HIS SECURITY WAS WORTH LESS THAN THE
VALUE OF HIS DEBT WAS THOUGHT TO BE INEQUITABLE TO UNSECURED
CREDITORS.  THUS WE RECENTLY SAID:  "SINCE THE DISTRIBUTION PROVIDED
FOR THESE BONDS ON THE BASIS OF THEIR MORTGAGE SECURITIES IS LESS THAN
THE PRINCIPAL AMOUNT OF THEIR CLAIM, THE LIMITATION OF THEIR RIGHT TO
SHARE THE UNMORTGAGED ASSETS RATABLY WITH THE UNSECURED CREDITORS ON
THE BASIS OF PRINCIPAL AND INTEREST PRIOR TO BANKRUPTCY ONLY IS
JUSTIFIED UNDER THE RULE OF TICONIC NATIONAL BANK V. SPRAGUE, 303 U.S.
406."  GROUP OF INSTITUTIONAL INVESTORS V. CHICAGO, MILWAUKEE, ST. PAUL
& PACIFIC R. CO., 318 U.S. 523, 573.  BUT WHERE AN ESTATE WAS AMPLE TO
PAY ALL CREDITORS AND TO PAY INTEREST EVEN AFTER THE PETITION WAS
FILED, EQUITABLE CONSIDERATIONS WERE INVOKED TO PERMIT PAYMENT OF THIS
ADDITIONAL INTEREST TO THE SECURED CREDITOR RATHER THAN TO THE DEBTOR. 
CODER V. ARTS, 213 U.S. 223, 245; SEXTON V. DREYFUS, SUPRA.  SEE ALSO
JOHNSON V. NORRIS, 190 F. 459.  FN7 

IT IS MANIFEST THAT THE TOUCHSTONE OF EACH DECISION ON ALLOWANCE OF
INTEREST IN BANKRUPTCY, RECEIVERSHIP AND REORGANIZATION HAS BEEN A
BALANCE OF EQUITIES BETWEEN CREDITOR AND CREDITOR OR BETWEEN CREDITORS
AND THE DEBTOR.  SEE SEXTON V. DREYFUS, SUPRA, AT 346.  THAT THE
PROCEEDINGS BEFORE US HAVE MOVED FROM EQUITY RECEIVERSHIP THROUGH SEC.
77B TO CHAPTER X IN THE WAKE OF STATUTORY CHANGE DOES NOT MAKE THESE
EQUITABLE CONSIDERATIONS HERE INAPPLICABLE.  A CHAPTER X OR SEC. 77B
REORGANIZATION COURT IS JUST AS MUCH A COURT OF EQUITY AS WERE ITS
STATUTORY AND CHANCERY ANTECEDENTS.  SEE CONSOLIDATED ROCK PRODUCTS CO.
V. DU BOIS, 312 U.S. 510, 527.  FN8 

IN THIS CASE, WHERE BY ORDER OF THE COURT INTEREST WAS LEFT UNPAID,
WE DO NOT THINK THAT IMPOSITION OF INTEREST ON THAT UNPAID INTEREST CAN
BE JUSTIFIED BY "AN APPLICATION OF EQUITABLE PRINCIPLES."  SEE DAYTON
V. STANARD, 241 U.S. 588, 590.  FN9  PRIOR TO THE BEGINNING OF THE
EQUITY RECEIVERSHIP, INLAND WOULD HAVE NEVER OWED INTEREST ON INTEREST
UNLESS AND UNTIL IT HAD BREACHED ITS OBLIGATION TO PAY SIMPLE INTEREST
PROMPTLY - ON THE DATE IT WAS DUE.  BEFORE THE RECEIVERSHIP BEGAN, A
FAILURE BY INLAND TO PAY COUPONS ON THE DATE THEY WERE DUE MIGHT HAVE
BREACHED AN EXISTING OBLIGATION.  THIS BREACH WOULD HAVE IMPOSED UPON
INLAND, UNDER THE TERMS OF THE COVENANT, A DUTY TO PAY INTEREST ON THE
INTEREST IT HAD FAILED TO PAY.  FN10  BUT WHEN THE EQUITY RECEIVERSHIP
INTERVENED, THESE INTERRELATED OBLIGATIONS WERE DRASTICALLY CHANGED. 
THE OBLIGATION TO MAKE PROMPT PAYMENT OF SIMPLE INTEREST COUPONS WAS
SUSPENDED.  IN FACT, BOTH INLAND AND THE RECEIVER WERE ORDERED BY THE
COURT NOT TO PAY THE COUPONS ON THE DATES THEY WERE, ON THEIR FACE,
SUPPOSED TO HAVE BEEN PAID.  THE CONTINGENCY WHICH MIGHT HAVE CREATED A
PRESENT OBLIGATION TO PAY INTEREST ON INTEREST - I.E., A FREE DECISION
BY THE DEBTOR THAT IT WOULD NOT OR COULD NOT PAY SIMPLE INTEREST
PROMPTLY - WAS PROHIBITED FROM OCCURRING BY ORDER OF THE COURT.  THAT
ORDER ISSUED FOR A GOOD CAUSE, WE MAY ASSUME:  TO PRESERVE AND PROTECT
THE DEBTOR'S ESTATE PENDING A RATABLE DISTRIBUTION AMONG ALL THE
CREDITORS ACCORDING TO THEIR INTERESTS AS OF THE DATE THE RECEIVERSHIP
BEGAN.  THE EXTRA INTEREST COVENANT MAY BE DEEMED ADDED COMPENSATION
FOR THE CREDITOR OR, WHAT IS MORE LIKELY, SOMETHING LIKE A PENALTY TO
INDUCE PROMPT PAYMENT OF SIMPLE INTEREST.  IN EITHER EVENT, FIRST
MORTGAGE BONDHOLDERS WOULD HAVE BEEN ENRICHED AND SUBORDINATE CREDITORS
WOULD HAVE SUFFERED A CORRESPONDING LOSS, BECAUSE OF A FAILURE TO PAY
WHEN PAYMENT HAD BEEN PROHIBITED BY A COURT ORDER ENTERED FOR THE JOINT
BENEFIT OF DEBTOR, CREDITORS, AND THE PUBLIC.  SUCH A RESULT IS NOT
CONSISTENT WITH EQUITABLE PRINCIPLES.  FOR LEGAL SUSPENSION OF AN
OBLIGATION TO PAY IS AN ADEQUATE REASON WHY NO ADDED COMPENSATION OR
PENALTY SHOULD BE ENFORCED FOR FAILURE TO PAY.  AFFIRMED. 

FN1  SECTION 77B WAS ENACTED JUNE 7, 1934, 48 STAT. 912.  THE SEC.
77B PETITION IN THIS CASE WAS FILED WHILE THE ESTATE CONTINUED IN THE
EQUITY RECEIVERSHIP.  SECTION 77B WAS SUPERSEDED BY CHAPTER X, 52 STAT.
883, 11 U.S.C. SEC. 501 ET SEQ. SECTION 276 OF CHAPTER X, 11 U.S.C.
676, AUTHORIZED CONTINUANCE OF THE SEC. 77B PROCEEDINGS UNDER CHAPTER
X. SEE YOUNG V. HIGBEE CO., 324 U.S. 204, 205, N. 1. 

FN2  THE CLAIMS FOR INTEREST ON INTEREST AMOUNT TO SOME $500,000. 

FN3  THE CIRCUIT COURT OF APPEALS THOUGHT A REFERENCE TO NEW YORK LAW
WAS AUTHORIZED BY THE FOLLOWING CASES:  CROMWELL V. COUNTY OF SAC, 96
U.S. 51; SCUDDER V. NATIONAL BANK, 91 U.S. 406, 412; LIVERPOOL STEAM
CO. V. PHENIX INS. CO., 129 U.S. 397, 453.  NONE OF THESE CASES NOR ANY
CITED BY PETITIONER HERE, E.G., SEEMAN V. PHILADELPHIA WAREHOUSE CO.,
274 U.S. 403, INVOLVE QUESTIONS OF DISTRIBUTION OF A DEBTOR'S ASSETS IN
RECEIVERSHIP, BANKRUPTCY OR REORGANIZATION TO MEET CLAIMS FOR INTEREST
ON INTEREST SAID TO HAVE ACCRUED AFTER A COURT TOOK POSSESSION OF A
DEBTOR'S ESTATE. 

FN4  OF COURSE, THERE MIGHT BE INSTANCES WHERE THE VALIDITY OF THE
OBLIGATION WOULD BE DETERMINED BY REFERENCE TO THE LAW OF SOME FOREIGN
COUNTRY. 

FN5  HEISER V. WOODRUFF, 327 U.S. 726, 732; AMERICAN SECURITY CO. V.
SAMPSELL, 327 U.S. 269, 272; PEPPER V. LITTON, 308 U.S. 295, 303-306. 

FN6  SEE SEC. 63A (1) OF THE BANKRUPTCY ACT, 11 U.S.C. 103A (1); CF.
SEC. 63 OF THE ACT OF 1898, 30 STAT. 562 AND SEC. 19 OF THE BANKRUPTCY
ACT OF 1867, 14 STAT. 525.  FOR A DISCUSSION OF INTEREST CLAIMS IN
BANKRUPTCY SEE 3 COLLIER ON BANKRUPTCY (14TH ED.)  281, 1835. 

FN7  ANALOGOUS PRINCIPLES HAVE BEEN APPLIED TO THE LIQUIDATION OF
NATIONAL BANKS.  WHITE V. KNOX, 111 U.S. 784, 786-87, RELIED ON IN
SEXTON V. DREYFUS, SUPRA, 346; TICONIC NAT'L BANK V. SPRAGUE, 303 U.S.
406, 412-13. 

FN8  SECTION 115 OF CHAPTER X; 11 U.S.C. 515 AUTHORIZES A CHAPTER X
COURT TO EXERCISE "ALL THE POWERS, NOT INCONSISTENT WITH THE PROVISIONS
OF THIS CHAPTER, WHICH A COURT OF THE UNITED STATES WOULD HAVE IF IT
HAD APPOINTED A RECEIVER IN EQUITY OF THE PROPERTY OF THE DEBTOR  ..." 
FORMER SEC. 77B OF THE BANKRUPTCY ACT, 48 STAT. 912, AND SEC. 77(A), 11
U.S.C. SEC. 205(A)(RAILROAD REORGANIZATION) CONTAIN SIMILAR
PROVISIONS. 

FN9  PETITIONER AND THE CIRCUIT COURT HAVE CITED NON-BANKRUPTCY CASES
WHICH AWARD INTEREST ON INTEREST TO SUPPORT THE AWARD IN THIS
REORGANIZATION.  TOWN OF GENOA V. WOODRUFF, 92 U.S. 502; EDWARDS V.
BATES COUNTY, 163 U.S. 269.  DIVERSITY OF CITIZENSHIP BROUGHT THESE
CASES TO THE FEDERAL COURTS.  NONE OF THEM PRESENTED TO THE COURTS THE
SPECIAL BANKRUPTCY PROBLEMS OF UNIFORMITY, RATABLE DISTRIBUTION AND
FAIRNESS AND EQUITY WHICH GROW OUT OF THE CONTEXT OF THE BANKRUPTCY
LAW. 

FN10  HAD A BREACH OCCURRED AND A SUIT BEEN FILED IN STATE COURT
PRIOR TO RECEIVERSHIP OR BANKRUPTCY, THAT COURT WOULD HAVE BEEN
REQUIRED TO DETERMINE WHETHER THE COVENANT WAS VALID UNDER THE
CONTROLLING STATE LAW. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE JACKSON JOINS,
CONCURRING; MR. JUSTICE BURTON HAVING CONCURRED IN THE OPINION OF THE
COURT ALSO JOINS IN THIS OPINION. 

IN 1928 THE INLAND GAS CORPORATION, CHARTERED BY DELAWARE, FLOATED A
FIRST MORTGAGE BOND ISSUE COVERING PROPERTY LOCATED IN KENTUCKY WHERE
IT HAD ITS PRINCIPAL PLACE OF BUSINESS.  THE MORTGAGE INDENTURE WAS
EXECUTED IN NEW YORK, DESIGNATED A NEW YORK CORPORATION AS TRUSTEE, AND
MADE THE BONDS AND COUPONS PAYABLE IN NEW YORK, OR, AT THE OPTION OF
THE HOLDER, IN CHICAGO WHERE THE DEBTOR HAD A PAYING AGENT.  BY AN
EXPLICIT CLAUSE IN THE INDENTURE, THE DEBTOR AGREED TO PAY INTEREST ON
DEFAULTED COUPONS AT THE RATE WHICH APPLIED TO THE BONDS THEMSELVES
BEFORE MATURITY.  THE BONDS WERE SOLD TO THE PUBLIC IN MANY STATES. 

THE DEBTOR DEFAULTED ON COUPONS AND ALSO ON THE BONDS WHEN THEY
BECAME DUE.  REORGANIZATION PROCEEDINGS UNDER SEC. 77 OF THE BANKRUPTCY
ACT WERE BEGUN BY CREDITORS IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF KENTUCKY.  SUBSEQUENTLY CHAPTER X OF THAT ACT WAS MADE
APPLICABLE.  IN THESE PROCEEDINGS A CLAIM, BASED ON THE COVENANT IN THE
INDENTURE, WAS MADE BY MORTGAGE BONDHOLDERS FOR INTEREST ON THE
DEFAULTED INTEREST COUPONS.  THE BANKRUPTCY COURT ALLOWED THE CLAIM,
APPARENTLY BECAUSE IT CONCLUDED THAT THE COVENANT IS VALID BY THE LAW
OF NEW YORK.  THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT
REVERSED.  151 F.2D 470.  THAT COURT, APPARENTLY DEEMING ITSELF
ULTIMATELY CONTROLLED BY THE LOCAL LAW OF KENTUCKY WHICH, IN TURN,
LOOKED TO THE LAW OF NEW YORK, RULED THAT THE CLAIMS SHOULD HAVE BEEN
DISALLOWED BECAUSE THE CONTRACT FOR THE PAYMENT OF INTEREST ON COUPONS
WAS VOID UNDER NEW YORK LAW.  ON THE OTHER HAND, THE SECURITIES AND
EXCHANGE COMMISSION, A STATUTORY PARTY TO THE PROCEEDINGS (SEC. 208 OF
THE BANKRUPTCY ACT, 11 U.S.C. 608), URGES ALLOWANCE OF THE CLAIM IF THE
COVENANT WOULD, APART FROM BANKRUPTCY, BE UPHELD IN THE COURTS OF ANY
STATE HAVING "A SUBSTANTIAL RELATIONSHIP TO THE TRANSACTION."  THE
COMMISSION THEREFORE SUPPORTS ALLOWANCE OF THE CLAIM BECAUSE IT FINDS
THAT TWO OF THE STATES RELATED TO THE TRANSACTION WOULD UPHOLD THE
COVENANT:  DELAWARE, THE STATE OF THE DEBTOR'S INCORPORATION, AND
KENTUCKY, ITS PRINCIPAL PLACE OF BUSINESS AND THE SITE OF THE MORTGAGE
PROPERTY.  FINALLY ANOTHER VIEW SUGGESTS THAT WHETHER INTEREST SHOULD
BE ALLOWED IN THIS CASE IS A MATTER OF FEDERAL LAW TO BE FASHIONED BY
THE BANKRUPTCY COURT IN THE LIGHT OF GENERAL, UNDEFINED NOTIONS OF
EQUITY POLICY AND OF BANKRUPTCY ADMINISTRATION. 

OF COURSE, WHERE RIGHTS ARE CREATED BY THE CONSTITUTION, TREATIES OR
STATUTES OF THE UNITED STATES AND DO NOT OWE THEIR ORIGIN TO THE LAWS
OF ANY STATE, THE GRANTING OR WITHHOLDING OF INTEREST AS PART OF THE
REMEDY IS ALSO A FUNCTION OF FEDERAL LAW.  THAT IS THE UPSHOT OF THE
DECISION IN BOARD OF COMMISSIONERS V. UNITED STATES, 308 U.S. 343.  THE
FACTORS LEGALLY DECISIVE OF THE PRESENT PROBLEM ARE THE OPPOSITE OF
THOSE WHICH CONTROLLED OUR DECISION IN THAT CASE.  THERE WE HAD A RIGHT
CREATED BY FEDERAL LAW.  IN THIS CASE, IT WAS BEYOND THE POWER OF
FEDERAL LAW TO CREATE THE RIGHT FOR WHICH CLAIM WAS MADE, ALTHOUGH, IF
BY STATE LAW SUCH A RIGHT CAME INTO BEING, IT MIGHT BECOME A QUESTION
WHETHER THE FEDERAL COURTS SHOULD RECOGNIZE SUCH A RIGHT WHEN THEY ARE
SOUGHT TO BE UTILIZED AS INSTRUMENTS FOR ITS ENFORCEMENT. 

CONFLICT-OF-LAW PROBLEMS HAVE A BEGUILING TENDENCY TO BE MADE EVEN
MORE COMPLICATED THAN THEY ARE.  THEREFORE, THEY ARE OFTEN, AS NOW,
FITTING OCCASIONS FOR OBSERVING THE CLASSIC ADMONITION TO BEGIN AT THE
BEGINNING.  THE BUSINESS OF BANKRUPTCY ADMINISTRATION IS TO DETERMINE
HOW EXISTING DEBTS SHOULD BE SATISFIED OUT OF THE BANKRUPT'S ESTATE SO
AS TO DEAL FAIRLY WITH THE VARIOUS CREDITORS.  THE EXISTENCE OF A DEBT
BETWEEN THE PARTIES TO AN ALLEGED CREDITOR-DEBTOR RELATION IS
INDEPENDENT OF BANKRUPTCY AND PRECEDES IT.  PARTIES ARE IN A BANKRUPTCY
COURT WITH THEIR RIGHTS AND DUTIES ALREADY ESTABLISHED, EXCEPT INSOFAR
AS THEY SUBSEQUENTLY ARISE DURING THE COURSE OF BANKRUPTCY
ADMINISTRATION OR AS PART OF ITS CONDUCT.  OBLIGATIONS TO BE SATISFIED
OUT OF THE BANKRUPT'S ESTATE THUS ARISE, IF AT ALL, OUT OF TORT OR
CONTRACT OR OTHER RELATIONSHIP CREATED UNDER APPLICABLE LAW.  AND THE
LAW THAT FIXES LEGAL CONSEQUENCES TO TRANSACTIONS IS THE LAW OF THE
SEVERAL STATES.  EXCEPT FOR THE VERY LIMITED OBLIGATIONS CREATED BY
CONGRESS, E.G., HOLMBERG V. ARMBRECHT, 327 U.S. 392, A DEBT IS NOT
BROUGHT INTO BEING BY FEDERAL LAW.  OBLIGATIONS EXIST OR DO NOT EXIST
BY FORCE OF STATE LAW THOUGH FEDERAL BANKRUPTCY LEGISLATION IS IN
FORCE, JUST AS STATE LAW DETERMINED WHETHER THEY CAME INTO BEING OR DID
NOT COME INTO BEING BETWEEN 1878 AND 1898 WHEN THERE WAS NO BANKRUPTCY
LAW.  THE FACT THAT SUBSEQUENT TO THE CREATION OF A DEBT A PARTY COMES
INTO A BANKRUPTCY COURT HAS NO RELEVANCE TO THE RULES CONCERNING THE
CREATION OF THE OBLIGATION.  OF COURSE A STATE MAY AFFIX TO A
TRANSACTION AN OBLIGATION WHICH THE COURTS OF OTHER STATES OR THE
FEDERAL COURTS NEED NOT ENFORCE BECAUSE OF OVERRIDING CONSIDERATIONS OF
POLICY.  AND SO, IN THE PROPER ADJUSTMENT OF THE RIGHTS OF CREDITORS
AND THE DESIRE TO REHABILITATE THE DEBTOR, CONGRESS UNDER ITS
BANKRUPTCY POWER MAY AUTHORIZE ITS COURTS TO REFUSE TO ALLOW EXISTING
DEBTS TO BE PROVEN.  IT MAY DO SO, FOR INSTANCE, WHERE THE RECOGNITION
OF SUCH CLAIMS WOULD UNDERMINE THE FAIR ADMINISTRATION OF A DEBTOR'S
ESTATE, EVEN THOUGH BEFORE BANKRUPTCY SUCH A CLAIM WOULD HAVE SUPPORTED
A VALID JUDGMENT IN THE COURTS OF THE STATE WHICH CREATED THE
OBLIGATION, OR EVEN IN THE COURTS OF THE STATE WHERE THE BANKRUPTCY
COURT IS SITTING.  BUT THE THRESHOLD QUESTION FOR THE ALLOWANCE OF A
CLAIM IS WHETHER A CLAIM EXISTS.  AND CLARITY OF ANALYSIS JUSTIFIES
REPETITION THAT EXCEPT WHERE FEDERAL LAW, WHOLLY APART FROM BANKRUPTCY,
HAS CREATED OBLIGATIONS BY THE EXERCISE OF POWER GRANTED TO THE FEDERAL
GOVERNMENT, A CLAIM IMPLIES THE EXISTENCE OF AN OBLIGATION CREATED BY
STATE LAW.  IF THERE WAS NO VALID CLAIM BEFORE BANKRUPTCY, THERE IS NO
CLAIM FOR A BANKRUPTCY COURT EITHER TO RECOGNIZE OR TO REJECT. 

SUCH AN ANALYSIS, HOWEVER PHRASED, IS INDISPENSABLE TO THE SOLUTION
OF THE PROBLEM NOW BEFORE US.  PUTTING THE WRONG QUESTIONS IS NOT
LIKELY TO BEGET RIGHT ANSWERS EVEN IN LAW.  ONE WAY OF PUTTING OUR
PROBLEM IS TO ASK WHETHER THE BANKRUPTCY COURT EXECUTING THE POLICY OF
CONGRESS COULD RECOGNIZE A CLAIM FOR INTEREST ON COUPONS AND ALLOW IT
TO SHARE IN THE DISTRIBUTION OF THE BANKRUPT'S ASSETS.  BUT THUS TO
FRAME THE QUESTION IS TO AVOID THE CRUCIAL PRELIMINARY INQUIRY WHETHER
ANY OBLIGATION EXISTS TO BE RECOGNIZED.  FOR NOTHING COMES INTO A
BANKRUPTCY COURT TO WHICH CONGRESSIONAL POLICY CAN APPLY UNLESS IT IS
AN OBLIGATION CREATED BY APPLICABLE STATE LAW.  AND NO OBLIGATION FINDS
ITS WAY INTO A BANKRUPTCY COURT UNLESS, BY THE LAW OF THE STATE WHERE
THE ACTS CONSTITUTING A TRANSACTION OCCUR, THE LEGAL CONSEQUENCE OF
SUCH A TRANSACTION IS AN OBLIGATION TO PAY.  SEE BRYANT V. SWOFFORD
BROS., 214 U.S. 279, 290-91; BENEDICT V. RATNER, 268 U.S. 353; SECURITY
MORTGAGE CO. V. POWERS, 278 U.S. 149.  WHERE A TRANSACTION IN ITS
ENTIRETY OCCURS IN ONE STATE, IT IS CLEARLY THE LAW OF THAT STATE THAT
DETERMINES IF AN OBLIGATION IS BORN, WHETHER THE QUESTION BECOMES
RELEVANT IN A BANKRUPTCY COURT OR IN ANY OTHER COURT.  BUT THE MERE
FACT THAT AN AGREEMENT IS MADE IN ONE STATE BY CITIZENS OF A SECOND
STATE FOR PERFORMANCE IN A THIRD AND AFFECTING INDIVIDUALS IN ALL FORTY
EIGHT STATES DOES NOT CHANGE THE PRINCIPLE INHERENT IN OUR FEDERAL
SCHEME, THAT THE EXISTENCE OF A DEBT COMES ABOUT NOT BY FEDERAL LAW BUT
BY FORCE OF SOME STATE LAW, EVEN THOUGH THE RIGHT TO ENFORCE THE DEBT,
IF IT EXISTS, MAY RAISE FEDERAL QUESTIONS IF BANKRUPTCY ENSUES. 
BANKRUPTCY LEGISLATION IS SUPERIMPOSED UPON RIGHTS AND OBLIGATIONS
CREATED BY THE LAWS OF THE STATES.  COMPARE MARSHALL V. NEW YORK, 254
U.S. 380.  WE DO NOT REACH CONSIDERATIONS OF POLICY IN BANKRUPTCY
ADMINISTRATION UNTIL THERE ARE RIGHTS, CREATED BY APPLICABLE LOCAL LAW,
TO BE RECOGNIZED. 

THIS BRINGS US TO THE IMMEDIATE SITUATION.  THIS IS NOT A CASE WHERE
DAMAGES ARE CLAIMED, IN THE FORM OF INTEREST, FOR THE DETENTION OF
MONIES DUE.  IN SUCH A SITUATION THE RIGHT TO INTEREST AND ITS MEASURE
BECOME MATTERS FOR JUDICIAL DETERMINATION.  THE CLAIM HERE ASSERTED IS
BASED SOLELY ON THE TERMS OF THE AGREEMENT.  THE COVENANT FOR INTEREST
ON INTEREST WAS ENTERED INTO BY THE PARTIES IN NEW YORK.  THE DOMINANT
PLACE OF PERFORMANCE WAS ALSO NEW YORK.  IN THE CIRCUMSTANCES, IF THE
WORDS OF THE INDENTURE CREATED AN OBLIGATION, THEY DID SO ONLY IF THE
LAW OF NEW YORK SAYS THEY DID.  WILLISTON, CONTRACTS SEC. 1792.  IF NEW
YORK OUTLAWED SUCH A COVENANT, NEITHER KENTUCKY NOR DELAWARE NOR THE
STATES IN WHICH BONDS WERE SOLD OR WHERE BONDHOLDERS RESIDE COULD GIVE
EFFECT TO AN OBLIGATION WHICH NEVER CAME INTO BEING.  COMPARE JOHN
HANCOCK INS. CO. V. YATES, 299 U.S. 178.  AND THE ULTIMATE VOICE OF NEW
YORK LAW, THE NEW YORK COURT OF APPEALS, SPEAKING THROUGH JUDGE
CARDOZO, STATED IT AS SETTLED LAW THAT "A PROMISE TO PAY INTEREST UPON
INTEREST IS VOID  ..."  NEWBURGER-MORRIS CO. V. TALCOTT, 219 N.Y. 505,
510, 114 N.E. 846.  THIS VIEW OF THE NEW YORK LAW IS SUPPORTED BY THE
GREAT WEIGHT OF JUDGE MACK'S AUTHORITY.  AMERICAN BRAKE SHOE & FOUNDRY
CO. V. INTERBOROUGH RAPID TRANSIT CO., 11 F.SUPP.  418, 419-420.  BUT
SEE AMERICAN BRAKE SHOE & FOUNDRY CO. V. INTERBOROUGH RAPID TRANSIT
CO., 26 F.SUPP.  954, CONTRA.  HOWEVER, IT IS NOT FOR US TO ASCERTAIN
INDEPENDENTLY WHETHER THE LAW OF NEW YORK DEEMED A NULLITY THE
AGREEMENT THAT WAS HERE SOUGHT TO BE MADE THE BASIS OF A CLAIM.  WE
WOULD NOT HAVE BROUGHT THE CASE HERE ON THAT ISSUE.  THE CIRCUIT COURT
OF APPEALS MADE SUCH AN INVESTIGATION AND CONCLUDED THAT IN NEW YORK
THE UNDERTAKING TO PAY INTEREST WAS VOID.  WE ACCEPT THIS FINDING AND
CONCLUDE THAT SINCE NO OBLIGATION WAS CREATED THERE WAS NO CLAIM
PROVABLE IN BANKRUPTCY.  AND SO WE ARE NOT NOW CALLED UPON TO DECIDE
WHETHER AS A MATTER OF BANKRUPTCY ADMINISTRATION AN AGREEMENT TO PAY
INTEREST ON INTEREST, WHERE IT IS AN OBLIGATION ENFORCEABLE BY STATE
LAW, IS ENFORCEABLE IN BANKRUPTCY.  THAT IS A QUESTION THAT CAN ARISE
ONLY WHERE SUCH AN OBLIGATION AROSE UNDER STATE LAW.  THE OPPOSITE IS
THE ASSUMPTION IN THE CASE BEFORE US. 

IT IS ARGUED, HOWEVER, THAT THIS CONCLUSION SUBJECTS THE FATE OF A
CLAIM IN BANKRUPTCY TO THE WHIM OF STATE LAW.  WE ARE TOLD THAT THIS
RESULT IS AGAINST THE POLICY OF CONGRESS IMPLIED IN MEASURES FOR THE
PROTECTION OF INVESTORS AND CONTRAVENES THE REQUIREMENT OF "UNIFORM
LAWS ON THE SUBJECT OF BANKRUPTCIES."  ART. I, SEC. 8, CL. 4.  BUT THIS
MISCONCEIVES THE PURPOSE AND SETTLED UNDERSTANDING OF THE BANKRUPTCY
CLAUSE OF THE CONSTITUTION.  THE CONSTITUTIONAL REQUIREMENT OF
UNIFORMITY IS A REQUIREMENT OF GEOGRAPHIC UNIFORMITY.  IT IS WHOLLY
SATISFIED WHEN EXISTING OBLIGATIONS OF A DEBTOR ARE TREATED ALIKE BY
THE BANKRUPTCY ADMINISTRATION THROUGHOUT THE COUNTRY, REGARDLESS OF THE
STATE IN WHICH THE BANKRUPTCY COURT SITS.  SEE HANOVER NATIONAL BANK V.
MOYSES, 186 U.S. 181, 190.  TO ESTABLISH UNIFORM LAWS OF BANKRUPTCY
DOES NOT MEAN WIPING OUT THE DIFFERENCES AMONG THE FORTY-EIGHT STATES
IN THEIR LAWS GOVERNING COMMERCIAL TRANSACTIONS.  THE CONSTITUTION DID
NOT INTEND THAT TRANSACTIONS THAT HAVE DIFFERENT LEGAL CONSEQUENCES
BECAUSE THEY TOOK PLACE IN DIFFERENT STATES SHALL COME OUT WITH THE
SAME RESULT BECAUSE THEY PASSED THROUGH A BANKRUPTCY COURT.  IN THE
ABSENCE OF BANKRUPTCY SUCH DIFFERENCES ARE THE FAMILIAR RESULTS OF A
FEDERAL SYSTEM HAVING FORTY-EIGHT DIVERSE CODES OF LOCAL LAW.  THESE
DIFFERENCES INHERENT IN OUR FEDERAL SCHEME THE DAY BEFORE A BANKRUPTCY
ARE NOT WIPED OUT OR TRANSMUTED THE DAY AFTER. 
..END :






















CARTER V. ILLINOIS, 329 U.S. 173 


NO. 36.  ARGUED NOVEMBER 15, 1946.  - DECIDED DECEMBER 9, 1946.  - 391
ILL. 594, 63 N.E.2D 763, AFFIRMED. 


1.  IN REVIEWING ON WRIT OF ERROR A CONVICTION FOR MURDER IN WHICH IT
WAS CLAIMED THAT THE RIGHT TO COUNSEL HAD BEEN DENIED CONTRARY TO THE
FOURTEENTH AMENDMENT, A STATE SUPREME COURT, IN ACCORDANCE WITH LOCAL
PRACTICE, WHEREBY IT COULD CONSIDER ONLY THE COMMON LAW RECORD,
CONCLUDED THAT, AFTER BEING FULLY ADVISED OF HIS RIGHTS, THE ACCUSED
HAD CONSCIOUSLY CHOSEN TO DISPENSE WITH COUNSEL AND TO PLEAD GUILTY. 
FACTORS SUCH AS RACIAL HANDICAP OF THE ACCUSED, HIS MENTAL INCAPACITY,
HIS INABILITY TO MAKE AN INTELLIGENT CHOICE, OR PRECIPITANCY IN THE
ACCEPTANCE OF A PLEA OF GUILTY - WHICH MIGHT SHOW FUNDAMENTAL
UNFAIRNESS IN THE PROCEEDINGS BEFORE THE TRIAL JUDGE - WERE NOT BEFORE
THE STATE SUPREME COURT IN THIS PROCEEDING.  HELD:  ON THIS RECORD, TO
WHICH REVIEW IN THIS COURT IS CONFINED, THERE IS NO SHOWING OF A DENIAL
OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.  RICE V. OLSON, 324 U.S.
786, DISTINGUISHED.  PP. 177-180. 

2.  DESIGNATION OF COUNSEL TO ASSIST DEFENDANT AT TIME OF SENTENCING
DOES NOT IMPLY THAT HE WAS NOT CAPABLE OF INTELLIGENT SELF-PROTECTION
WHEN HE PLEADED GUILTY.  PP. 178-179. 

CARTER V. ILLINOIS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

THE SUPREME COURT OF ILLINOIS SUSTAINED A CONVICTION FOR MURDER.  391
ILL. 594, 63 N.E.2D 763.  THIS COURT GRANTED CERTIORARI.  328 U.S.
827.  AFFIRMED, P. 180. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN 1928 PETITIONER PLEADED GUILTY TO AN INDICTMENT FOR MURDER AND WAS
SENTENCED TO IMPRISONMENT FOR 99 YEARS.  IN 1945 HE BROUGHT A PETITION
FOR HIS RELEASE ON WRIT OF ERROR IN THE SUPREME COURT OF ILLINOIS
CLAIMING THAT THE CONVICTION ON WHICH HIS CONFINEMENT WAS BASED WAS
VITIATED BY THE DENIAL OF HIS RIGHT UNDER THE FOURTEENTH AMENDMENT TO
THE ASSISTANCE OF COUNSEL.  THE SUPREME COURT OF ILLINOIS AFFIRMED THE
ORIGINAL JUDGMENT OF CONVICTION.  391 ILL. 594, 63 N.E.2D 763.  IN VIEW
OF THE IMPORTANCE OF THE CLAIM, IF VALID, WE BROUGHT THE CASE HERE. 
328 U.S. 827. 

IN A SERIES OF CASES OF WHICH MOORE V. DEMPSEY, 261 U.S. 86, WAS THE
FIRST, AND ASHCRAFT V. TENNESSEE, 327 U.S. 274, THE LATEST, WE HAVE
SUSTAINED AN APPEAL TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT FOR A FAIR ASCERTAINMENT OF GUILT OR INNOCENCE.  INHERENT IN
THE NOTION OF FAIRNESS IS AMPLE OPPORTUNITY TO MEET AN ACCUSATION. 
UNDER PERTINENT CIRCUMSTANCES, THE OPPORTUNITY IS AMPLE ONLY WHEN AN
ACCUSED HAS THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE.  AND THE NEED
FOR SUCH ASSISTANCE MAY EXIST AT EVERY STAGE OF THE PROSECUTION, FROM
ARRAIGNMENT TO SENTENCING.  THIS DOES NOT, HOWEVER, MEAN THAT THE
ACCUSED MAY NOT MAKE HIS OWN DEFENSE; NOR DOES IT PREVENT HIM FROM
ACKNOWLEDGING GUILT WHEN FULLY ADVISED OF ALL ITS IMPLICATIONS AND
CAPABLE OF UNDERSTANDING THEM.  NEITHER THE HISTORIC CONCEPTION OF DUE
PROCESS NOR THE VITALITY IT DERIVES FROM PROGRESSIVE STANDARDS OF
JUSTICE DENIES A PERSON THE RIGHT TO DEFEND HIMSELF OR TO CONFESS
GUILT.  UNDER APPROPRIATE CIRCUMSTANCES THE CONSTITUTION REQUIRES THAT
COUNSEL BE TENDERED; IT DOES NOT REQUIRE THAT UNDER ALL CIRCUMSTANCES
COUNSEL BE FORCED UPON A DEFENDANT.  UNITED STATES EX REL. MCCANN V.
ADAMS, 320 U.S. 220. 

THE SOLICITUDE FOR SECURING JUSTICE THUS EMBODIED IN THE DUE PROCESS
CLAUSE IS NOT SATISFIED BY FORMAL COMPLIANCE OR MERELY PROCEDURAL
REGULARITY.  IT IS NOT CONCLUSIVE THAT THE PROCEEDINGS RESULTING IN
INCARCERATION ARE UNASSAILABLE ON THE FACE OF THE RECORD.  A STATE MUST
GIVE ONE WHOM IT DEPRIVES OF HIS FREEDOM THE OPPORTUNITY TO OPEN AN
INQUIRY INTO THE INTRINSIC FAIRNESS OF A CRIMINAL PROCESS EVEN THOUGH
IT APPEARS PROPER ON THE SURFACE.  MOONEY V. HOLOHAN, 294 U.S. 103. 
QUESTIONS OF FUNDAMENTAL JUSTICE PROTECTED BY THE DUE PROCESS CLAUSE
MAY BE RAISED, TO USE LAWYERS' LANGUAGE, DEHORS THE RECORD. 

BUT THE DUE PROCESS CLAUSE HAS NEVER BEEN PERVERTED SO AS TO FORCE
UPON THE FORTY-EIGHT STATES A UNIFORM CODE OF CRIMINAL PROCEDURE. 
EXCEPT FOR THE LIMITED SCOPE OF THE FEDERAL CRIMINAL CODE, THE
PROSECUTION OF CRIME IS A MATTER FOR THE INDIVIDUAL STATES.  THE
CONSTITUTION COMMANDS THE STATES TO ASSURE FAIR JUDGMENT.  PROCEDURAL
DETAILS FOR SECURING FAIRNESS IT LEAVES TO THE STATES.  IT IS FOR THEM,
THEREFORE, TO CHOOSE THE METHODS AND PRACTICES BY WHICH CRIME IS
BROUGHT TO BOOK, SO LONG AS THEY OBSERVE THOSE ULTIMATE DIGNITIES OF
MAN WHICH THE UNITED STATES CONSTITUTION ASSURES.  BROWN V. NEW JERSEY,
175 U.S. 172, 175; MISSOURI V. LEWIS, 101 U.S. 22, 31.  WIDE DISCRETION
MUST BE LEFT TO THE STATES FOR THE MANNER OF ADJUDICATING A CLAIM THAT
A CONVICTION IS UNCONSTITUTIONAL.  STATES ARE FREE TO DEVISE THEIR OWN
SYSTEMS OF REVIEW IN CRIMINAL CASES.  A STATE MAY DECIDE WHETHER TO
HAVE DIRECT APPEALS IN SUCH CASES, AND IF SO UNDER WHAT CIRCUMSTANCES. 
MCKANE V. DURSTON, 153 U.S. 684, 687.  IN RESPECTING THE DUTY LAID UPON
THEM BY MOONEY V. HOLOHAN, STATES HAVE A WIDE CHOICE OF REMEDIES.  A
STATE MAY PROVIDE THAT THE PROTECTION OF RIGHTS GRANTED BY THE FEDERAL
CONSTITUTION BE SOUGHT THROUGH THE WRIT OF HABEAS CORPUS OR CORAM
NOBIS.  IT MAY USE EACH OF THESE ANCIENT WRITS IN ITS COMMON LAW SCOPE,
OR IT MAY PUT THEM TO NEW USES; OR IT MAY AFFORD REMEDY BY A SIMPLE
MOTION BROUGHT EITHER IN THE COURT OF ORIGINAL CONVICTION OR AT THE
PLACE OF DETENTION.  SEE, E.G., NEW YORK EX REL. WHITMAN V. WILSON, 318
U.S. 688; MATTER OF LYONS V. GOLDSTEIN, 290 N.Y. 19, 25, 47 N.E.2D 425;
MATTER OF MORHOUS V. N.Y. SUPREME COURT, 293 N.Y. 131, 56 N.E.2D 79;
PEOPLE V. GERSEWITZ, 294 N.Y. 163, 168, 61 N.E.2D 427; MATTER OF HOGAN
V. COURT OF GENERAL SESSIONS, 296 N.Y. 1, 9, 68 N.E.2D 849.  SO LONG AS
THE RIGHTS UNDER THE UNITED STATES CONSTITUTION MAY BE PURSUED, IT IS
FOR A STATE AND NOT FOR THIS COURT TO DEFINE THE MODE BY WHICH THEY MAY
BE VINDICATED. 

AN ACCUSED MAY HAVE BEEN DENIED THE ASSISTANCE OF COUNSEL UNDER
CIRCUMSTANCES WHICH CONSTITUTE AN INFRINGEMENT OF THE UNITED STATES
CONSTITUTION.  IF THE STATE AFFORDS NO MODE FOR REDRESSING THAT WRONG,
HE MAY COME TO THE FEDERAL COURTS FOR RELIEF.  BUT WHERE A REMEDY IS
PROVIDED BY THE STATE, A DEFENDANT MUST FIRST EXHAUST IT IN THE MANNER
IN WHICH THE STATE PRESCRIBES.  EX PARTE HAWK, 321 U.S. 114; HOUSE V.
MAYO, 324 U.S. 42.  FOR THE RELATION OF THE UNITED STATES AND THE
COURTS OF THE UNITED STATES TO THE STATES AND THE COURTS OF THE STATES
IS A VERY DELICATE MATTER.  SEE EX PARTE ROYALL, 117 U.S. 241, 251. 
WHEN A DEFENDANT, AS HERE, INVOKES A REMEDY PROVIDED BY THE STATE OF
ILLINOIS, THE DECISION OF THE LOCAL COURT MUST BE JUDGED ON THE BASIS
OF THE SCOPE OF THE REMEDY PROVIDED AND WHAT THE COURT PROPERLY HAD
BEFORE IT IN SUCH A PROCEEDING.  WOODS V. NIERSTHEIMER, 328 U.S. 211. 
THE ONLY THING BEFORE THE ILLINOIS SUPREME COURT WAS WHAT IS KNOWN
UNDER ILLINOIS PRACTICE AS THE COMMON LAW RECORD.  THAT RECORD, AS
CERTIFIED IN THIS CASE, INCLUDED ONLY THE INDICTMENT, THE JUDGMENT ON
PLEA OF GUILTY, THE MINUTE ENTRY BEARING ON SENTENCE, AND THE
SENTENCE.  AND SO THE VERY NARROW QUESTION NOW BEFORE US IS WHETHER
THIS COMMON LAW RECORD ESTABLISHES THAT THE DEFENDANT'S SENTENCE IS
VOID BECAUSE IN THE PROCEEDINGS THAT LED TO IT HE WAS DENIED THE
ASSISTANCE OF COUNSEL. 

THIS CASE IS QUITE DIFFERENT FROM A CASE LIKE RICE V. OLSON, 324 U.S.
786.  IN THAT CASE THE RECORD PROPERLY BEFORE THIS COURT CONTAINED
SPECIFIC ALLEGATIONS BEARING ON THE DISABILITIES OF THE DEFENDANT TO
STAND PROSECUTION WITHOUT THE AID OF COUNSEL.  THERE WAS NOT, AS WE
HAVE HERE, AN UNCHALLENGED FINDING BY THE TRIAL COURT THAT THE ACCUSED
WAS DULY APPRISED OF HIS RIGHTS AND, IN AWARENESS OF THEM, CHOSE TO
PLEAD GUILTY.  THE JUDGMENT AGAINST CARTER EXPLICITLY STATES: 

"AND THE SAID DEFENDANT HARICE LEROY CARTER COMMONLY KNOWN AS ROY
CARTER HAVING BEEN DULY ARRAIGNED AND BEING CALLED UPON TO PLEAD
EXPRESSES A DESIRE TO PLEAD GUILTY TO THE CRIME OF MURDER AS CHARGED IN
THE INDICTMENT.  THEREUPON THE COURT FULLY EXPLAINED TO THE DEFENDANT
HARICE LEROY CARTER COMMONLY KNOWN AS ROY CARTER THE CONSEQUENCE OF
SUCH PLEA AND OF ALL HIS RIGHTS IN THE PREMISES INCLUDING THE RIGHT TO
HAVE A LAWYER APPOINTED BY THE COURT TO DEFEND HIM AND ALSO OF HIS
RIGHT TO A TRIAL BEFORE A JURY OF TWELVE JURORS SWORN IN OPEN COURT AND
OF THE DEGREE OF PROOF THAT WOULD BE REQUIRED TO JUSTIFY A VERDICT OF
GUILTY AGAINST HIM UNDER THE PLEA OF NOT GUILTY BUT THE DEFENDANT
HARICE LEROY CARTER COMMONLY KNOWN AS ROY CARTER PERSISTS IN HIS DESIRE
TO PLEAD GUILTY AND FOR A PLEA SAYS HE IS GUILTY IN MANNER AND FORM AS
CHARGED IN THE INDICTMENT." 

THIS, THEN, IS NOT A CASE IN WHICH INTELLIGENT WAIVER OF COUNSEL IS A
TENUOUS INFERENCE FROM THE MERE FACT OF A PLEA OF GUILTY.  RICE V.
OLSON, SUPRA, AT 788.  A FAIR READING OF THE JUDGMENT AGAINST CARTER
INDICATES A JUDICIAL ATTESTATION THAT THE ACCUSED, WITH HIS RIGHTS
FULLY EXPLAINED TO HIM, CONSCIOUSLY CHOSE TO DISPENSE WITH COUNSEL. 
AND THERE IS NOTHING IN THE RECORD TO CONTRADICT THE JUDICIAL FINDING. 
FROM THE COMMON LAW RECORD, WE DO NOT KNOW WHAT MANNER OF MAN THE
DEFENDANT WAS.  FACTS BEARING ON HIS MATURITY OR CAPACITY OF
COMPREHENSION, OR ON THE CIRCUMSTANCES UNDER WHICH A PLEA OF GUILTY WAS
TENDERED AND ACCEPTED, ARE WHOLLY WANTING.  WE HAVE ONLY THE FACT THAT
THE TRIAL JUDGE EXPLAINED WHAT THE PLEA OF GUILTY INVOLVED.  TO BE
SURE, THE RECORD DOES NOT SHOW THAT THE TRIAL COURT SPELLED OUT WITH
LABORIOUS DETAIL THE VARIOUS DEGREES OF HOMICIDE UNDER ILLINOIS LAW AND
THE VARIOUS DEFENSES OPEN TO ONE ACCUSED OF MURDER.  BUT THE
CONSTITUTION OF THE UNITED STATES DOES NOT REQUIRE OF A JUDGE THAT HE
RECITE WITH PARTICULARITY THAT HE PERFORMED HIS DUTY. 

THE ONLY PEG ON WHICH THE DEFENDANT SEEKS TO HANG A CLAIM THAT HIS
RIGHT TO COUNSEL WAS DENIED IS THE FACT THAT THE JUDGE DID ASSIGN HIM
COUNSEL WHEN IT CAME TO SENTENCING.  FROM THIS FACT ALONE, WE ARE ASKED
TO DRAW THE INFERENCE THAT THE ACCUSED WAS NOT CAPABLE OF UNDERSTANDING
THE PROCEEDINGS WHICH LED TO HIS PLEA OF GUILTY, AND WAS THEREFORE
DEPRIVED OF THE INDISPENSABLE ASSISTANCE OF COUNSEL.  WE CANNOT TAKE
SUCH A JUMP IN REASONING.  A TRIAL COURT MAY JUSTIFIABLY BE CONVINCED
THAT A DEFENDANT KNOWS WHAT HE IS ABOUT WHEN HE PLEADS GUILTY AND THAT
HE RIGHTLY BELIEVES THAT A TRIAL IS FUTILE BECAUSE A DEFENSE IS
WANTING.  BUT THE IMPOSITION OF SENTENCE PRESENTS QUITE DIFFERENT
CONSIDERATIONS.  THERE A JUDGE USUALLY MOVES WITHIN A LARGE AREA OF
DISCRETION AND DOUBTS.  SUCH IS THE SITUATION UNDER ILLINOIS LAW.  THE
RANGE OF PUNISHMENT WHICH A JUDGE IN ILLINOIS MAY IMPOSE FOR MURDER IS
BETWEEN FOURTEEN YEARS AND DEATH.  IT IS A COMMONPLACE THAT NO MORE
DIFFICULT TASK CONFRONTS JUDGES THAN THE DETERMINATION OF PUNISHMENT
NOT FIXED BY STATUTE.  EVEN THE MOST SELF-ASSURED JUDGE MAY WELL WANT
TO BRING TO HIS AID EVERY CONSIDERATION THAT COUNSEL FOR THE ACCUSED
CAN APPROPRIATELY URGE.  IN ANY EVENT, THE DESIGNATION OF COUNSEL TO
ASSIST THE ACCUSED AT THE SENTENCING STAGE OF THE PROSECUTION IN NO
WISE IMPLIES THAT THE DEFENDANT WAS NOT CAPABLE OF INTELLIGENT SELF
PROTECTION WHEN HE PLEADED GUILTY.  CF. CANIZIO V. NEW YORK, 327 U.S.
82. 

WE CONCLUDE THAT ON THE RECORD BEFORE THE SUPREME COURT OF ILLINOIS
THERE WAS NO SHOWING THAT CARTER'S PLEA OF GUILTY WAS MADE UNDER
CIRCUMSTANCES WHICH CUT THE GROUND FROM UNDER THE RESULTING SENTENCE. 
IN RESTRICTING ITS REVIEW TO THAT RECORD THE SUPREME COURT OF ILLINOIS
FOLLOWED LOCAL PRACTICE, AND THE PRACTICE CONSTITUTES ALLOWABLE STATE
APPELLATE PROCEDURE.  FACTORS THAT MIGHT SUGGEST FUNDAMENTAL UNFAIRNESS
IN THE PROCEEDINGS BEFORE THE TRIAL JUDGE - E.G., THE RACIAL HANDICAP
OF THE DEFENDANT, HIS MENTAL INCAPACITY, HIS INABILITY TO MAKE AN
INTELLIGENT CHOICE, PRECIPITANCY IN THE ACCEPTANCE OF A PLEA OF GUILTY
ARE NOT BEFORE US BECAUSE THEY WERE NOT IN THE COMMON LAW RECORD WHICH
WAS ALL THAT WAS BEFORE THE SUPREME COURT OF ILLINOIS.  WHETHER THE
DEFENDANT IS ENTITLED TO PRESS SUCH CLAIMS TO SHOW A DENIAL BY THE
STATE OF ILLINOIS OF A CONSTITUTIONAL RIGHT, IT WILL BE TIME ENOUGH TO
CONSIDER WHEN THAT ISSUE IS PROPERLY BEFORE US AFTER BEING PRESENTED IN
A PROCEEDING IN THE STATE COURTS APPROPRIATE TO THAT PURPOSE, OR, IF
NONE IS AVAILABLE, IN A FEDERAL COURT.  WOODS V. NIERSTHEIMER, SUPRA;
EX PARTE HAWK, SUPRA. 

AFTER INDICATING THE RESTRICTED SCOPE OF REVIEW IN THIS PROCEEDING,
THE COURT BELOW OBSERVED THAT UNDER ILLINOIS LAW A DEFENDANT WHO
DESIRES COUNSEL MUST ASK FOR IT AND SHOW THAT HE CANNOT AFFORD ONE OF
HIS OWN CHOICE.  THERE ARE SITUATIONS WHEN JUSTICE CANNOT BE
ADMINISTERED UNLESS PERSONS CHARGED WITH CRIME ARE DEFENDED BY CAPABLE
AND RESPONSIBLE COUNSEL.  BUT THERE IS NOTHING IN THE RECORD BEFORE US
TO INDICATE THAT THE CIRCUMSTANCES MADE IT NECESSARY FOR CARTER TO HAVE
PROFESSIONAL GUIDANCE OTHER THAN THAT GIVEN BY THE TRIAL COURT.  THERE
IS THEREFORE NOTHING IN THE STATEMENT OF THE ILLINOIS SUPREME COURT
ALONE FROM WHICH WE CAN INFER THAT THESE NORMAL REQUIREMENTS OF
ILLINOIS LAW PREJUDICED THIS DEFENDANT OR MADE THEIR OBSERVANCE IN THIS
CASE INCONGRUOUS WITH HIS CONSTITUTIONAL RIGHTS.  JUDGMENT AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING. 

IF, AS THE OPINION OF THE COURT SUGGESTS, THE ILLINOIS SUPREME COURT
HAD RULED THAT PETITIONER COULD NOT RAISE THE QUESTION OF HIS RIGHT TO
COUNSEL BY REASON OF THE ABBREVIATED COMMON LAW RECORD, I WOULD AGREE
THAT THE JUDGMENT SHOULD BE AFFIRMED.  FOR THEN PETITIONER WOULD BE
REMITTED TO OTHER STATE PROCEDURES FOR VINDICATION OF HIS
CONSTITUTIONAL RIGHT.  THE ILLINOIS SUPREME COURT RESTED ON THAT GROUND
WHEN IT REFUSED TO CONSIDER HIS CLAIM THAT HE WAS DEPRIVED OF DUE
PROCESS OF LAW BY REASON OF THE METHOD OF HIS ARREST AND THE UNFAIRNESS
OF THE TRIAL.  BUT WHEN IT CAME TO CONSIDER THE QUESTION OF HIS RIGHT
TO COUNSEL, THE INADEQUACY OF THE RECORD WAS NOT THE GROUND IT GAVE FOR
BARRING HIM FROM SHOWING THAT HE WAS UNQUALIFIED TO WAIVE THE
CONSTITUTIONAL RIGHT: 

"HIS FIRST CONTENTION IS THAT THE COURT ERRED IN NOT APPOINTING AN
ATTORNEY TO REPRESENT HIM DURING ARRAIGNMENT.  THE RIGHT TO BE
REPRESENTED BY COUNSEL IS ONE WHICH THE DEFENDANT MAY WAIVE OR CLAIM,
AS HE SHALL DETERMINE.  NO DUTY RESTS UPON THE COURT TO PROVIDE LEGAL
ASSISTANCE FOR AN ACCUSED, UNLESS HE STATES, UNDER HIS OATH, HIS
INABILITY TO PROCURE COUNSEL, AND EXPRESSES A DESIRE TO HAVE THE COURT
APPOINT ONE FOR HIM.  (PEOPLE V. BRANER, 389 ILL. 190; PEOPLE V.
CORRIE, 387 ILL. 587; PEOPLE V. CHILDERS, 386 ILL. 312.)  THERE BEING
NO BILL OF EXCEPTIONS, AND IT NOT APPEARING THAT PLAINTIFF IN ERROR
SOUGHT TO HAVE AN ATTORNEY APPOINTED FOR HIM, THIS ASSIGNMENT OF ERROR
CANNOT BE SUSTAINED.  PEOPLE V. STUBBLEFIELD, POST, P. 609; PEOPLE V.
STACK, ANTE, P. 15; PEOPLE V. BRANER, 389 ILL. 190."  391 ILL. 594,
595; 63 N.E.2D 763, 764.    BY THE RULE THERE ANNOUNCED THE RECORD WAS
INADEQUATE ONLY IN ONE RESPECT - THE ABSENCE OF A BILL OF EXCEPTIONS
SHOWING THAT PETITIONER ASKED THAT AN ATTORNEY BE APPOINTED FOR HIM. 
BUT THAT NEGLECT BY A DEFENDANT IS NOT FATAL, AT LEAST IN A CAPITAL
CASE.  IF A DEFENDANT IS NOT CAPABLE OF MAKING HIS OWN DEFENSE, IT IS
THE DUTY OF THE COURT TO APPOINT COUNSEL, WHETHER REQUESTED SO TO DO OR
NOT.  WILLIAMS V. KAISER, 323 U.S. 471, 476.  AS WE STATED IN THAT
CASE, PP. 475-476: 

"THE DECISION TO PLEAD GUILTY IS A DECISION TO ALLOW A JUDGMENT OF
CONVICTION TO BE ENTERED WITHOUT A HEARING - A DECISION WHICH IS
IRREVOCABLE AND WHICH FORECLOSES ANY POSSIBILITY OF ESTABLISHING
INNOCENCE.  IF WE ASSUME THAT PETITIONER COMMITTED A CRIME, WE CANNOT
KNOW THE DEGREE OF PREJUDICE WHICH THE DENIAL OF COUNSEL CAUSED.  SEE
GLASSER V. UNITED STATES, 315 U.S. 60, 75-76.  ONLY COUNSEL COULD
DISCERN FROM THE FACTS WHETHER A PLEA OF NOT GUILTY TO THE OFFENSE
CHARGED OR A PLEA OF GUILTY TO A LESSER OFFENSE WOULD BE APPROPRIATE. 
A LAYMAN IS USUALLY NO MATCH FOR THE SKILLED PROSECUTOR WHOM HE
CONFRONTS IN THE COURT ROOM.  HE NEEDS THE AID OF COUNSEL LEST HE BE
THE VICTIM OF OVERZEALOUS PROSECUTORS, OF THE LAW'S COMPLEXITY, OR OF
HIS OWN IGNORANCE OR BEWILDERMENT." 

THEREFORE THE LEAST WHICH WE SHOULD DO IS TO VACATE THIS JUDGMENT AND
REMAND THE CASE TO THE ILLINOIS SUPREME COURT.  FOR AS MR. JUSTICE
MURPHY POINTS OUT, THERE IS AMPLE EVIDENCE IN THE RECORD, CERTIFIED TO
US FROM THAT COURT, TO SUPPORT PETITIONER'S CLAIM THAT HE WAS NOT
CAPABLE OF MAKING HIS DEFENSE.  IF THAT EVIDENCE MAY BE CONSIDERED IN
THIS PROCEEDING, PETITIONER SHOULD PREVAIL.  THOUGH THE BASIS OF THE
ACTION OF THE ILLINOIS SUPREME COURT BE DEEMED LESS CLEAR THAN I HAVE
INDICATED, A REMAND TO IT WOULD BE APPROPRIATE SO THAT ANY STATE
PROCEDURAL QUESTION MAY BE UNTANGLED FROM THE QUESTION ARISING UNDER
THE FEDERAL CONSTITUTION.  SEE STATE TAX COMMISSION V. VAN COTT, 306
U.S. 511. 

MR. JUSTICE MURPHY, DISSENTING. 

THE ADMITTED FACTS OF THIS CASE PLAINLY REVEAL THAT THE PETITIONER
HAS NOT BEEN CONVICTED OF MURDER AND SENTENCED TO 99 YEARS IN PRISON IN
ACCORDANCE WITH DUE PROCESS OF LAW.  RATHER HE HAS BEEN DEPRIVED OF HIS
FREEDOM FOR LIFE WITHOUT THE AID OF AN ATTORNEY TO GUIDE HIM ALONG THE
COMPLICATED AND TWISTING LABYRINTHS OF THE LAW.  AND THERE IS NO
AFFIRMATIVE INDICATION THAT HE INTELLIGENTLY WAIVED HIS RIGHT TO
COUNSEL OR THAT HE UNDERSTOOD THE INTRICATE LEGAL PROBLEMS INVOLVED IN
HIS INDICTMENT AND CONVICTION.  DUE PROCESS CANNOT THRIVE IN THE
ABSENCE OF SUCH EVIDENCE. 

THERE IS AN INITIAL PROBLEM AS TO WHAT EVIDENCE IS BEFORE THIS COURT
AT THIS TIME.  IT IS SAID THAT WE ARE LIMITED TO THE COMMON LAW RECORD
BEFORE THE SUPREME COURT OF ILLINOIS, A RECORD THAT INCLUDES ONLY THE
INDICTMENT, THE JUDGMENT ON THE PLEA OF GUILTY, THE MINUTE ENTRY
BEARING ON THE SENTENCE, AND THE SENTENCE ITSELF.  WE ARE ASKED TO
CLOSE OUR EYES TO A TRANSCRIPT OF TESTIMONY IN CONNECTION WITH A
HEARING ON MITIGATION OF THE OFFENSE.  THIS TESTIMONY WAS TAKEN AFTER
THE CONVICTION.  IT HAS BEEN CERTIFIED, PRESUMABLY BY THE STENOGRAPHER
RECORDING THE TESTIMONY AT THE HEARING, AND NOTARIZED.  IT APPEARS IN
THE PRINTED RECORD BEFORE THIS COURT.  WE ARE ALSO ASKED TO OVERLOOK
CERTAIN INFORMATION ABOUT THE PETITIONER GIVEN TO THE ILLINOIS STATE
PENITENTIARY BY THE STATE'S ATTORNEY AND CONCURRED IN BY THE PRESIDING
JUDGE.  THE STATE OF ILLINOIS DOES NOT DENY ANY OF THESE FACTS; IT
MERELY REQUESTS THAT WE DISREGARD THEM AS DID THE SUPREME COURT OF
ILLINOIS, THAT WE BLIND OURSELVES TO WHAT IS PRINTED IN THE RECORD
BEFORE US. 

LEGAL TECHNICALITIES DOUBTLESS AFFORD JUSTIFICATION FOR OUR PRETENSE
OF IGNORING PLAIN FACTS BEFORE US, FACTS UPON WHICH A MAN'S VERY LIFE
OR LIBERTY CONCEIVABLY COULD DEPEND.  MOREOVER, THERE PROBABLY IS LEGAL
WARRANT FOR OUR NOT REMANDING THE CASE TO THE SUPREME COURT OF ILLINOIS
TO ALLOW THOSE FACTS TO BE INCORPORATED IN THE FORMAL RECORD BEFORE IT
AND TO RECONSIDER ITS DECISION IN LIGHT THEREOF.  BUT THE RESULT
CERTAINLY DOES NOT ENHANCE THE HIGH TRADITIONS OF THE JUDICIAL
PROCESS. 

IN MY VIEW, WHEN UNDISPUTED FACTS APPEAR IN THE RECORD BEFORE US IN A
CASE INVOLVING A MAN'S LIFE OR LIBERTY, THEY SHOULD NOT BE IGNORED IF
JUSTICE DEMANDS THEIR USE.  HERE THE FACTS IN QUESTION FORTUNATELY ARE
NOT CRUCIAL, SINCE THE BARE COMMON LAW RECORD ALONE REVEALS A LACK OF
DUE PROCESS.  BUT THE ADDITIONAL FACTS DO SERVE TO EMPHASIZE THE
ABSENCE OF AN INTELLIGENT WAIVER OF COUNSEL AND PETITIONER'S FAILURE TO
COMPREHEND THE LEGAL PROBLEMS PLACED IN HIS PATH.  THEY SERVE TO MAKE
ANY DECISION ON THE ISSUE IN THE CASE MORE INTELLIGENT AND MORE JUST. 
THE DISCUSSION THAT FOLLOWS, THEREFORE, IS BASED ON ALL THE CERTIFIED
FACTS IN THE RECORD BEFORE US. 

PETITIONER, A NEGRO, WAS 30 YEARS OF AGE AT THE TIME OF THE RELEVANT
EVENTS IN 1928.  HE HAD NO SCHOOLING, ALTHOUGH HE WAS ABLE TO READ AND
WRITE.  HE WAS OF AVERAGE MENTALITY AND HAD NEVER BEFORE RUN AFOUL OF
THE LAW.  DURING THE PRECEDING ELEVEN YEARS HE HAD WORKED AS A COOK AND
A MECHANIC.  BY REPUTATION HE WAS QUIET AND INDUSTRIOUS. 

WHILE DRIVING A CAR BACK FROM A FISHING TRIP, PETITIONER BECAME
INVOLVED IN A BITTER AND PROLONGED DISPUTE WITH THE DRIVER OF A HORSE
DRAWN GRAVEL WAGON OVER THE RIGHT-OF-WAY ON A ROAD.  THIS DRIVER, A
WHITE MAN, REFUSED TO GIVE PETITIONER ENOUGH ROOM TO PASS.  A VIOLENT
ARGUMENT IN RACIAL TERMINOLOGY ENSUED; ROCKS AND GRAVEL WERE THROWN AT
PETITIONER'S CAR.  EVENTUALLY, WHEN THE DISPUTE WAS RENEWED AFTER A
SHORT INTERVAL, THE DRIVER GOT OFF HIS WAGON AND ADVANCED TOWARD
PETITIONER'S CAR.  PETITIONER CLAIMED THAT HE THOUGHT THE DRIVER WAS
REACHING INTO HIS SHIRT FOR A GUN.  PETITIONER GOT OUT OF HIS CAR AND
FIRED THREE TIMES, KILLING THE DRIVER. 

PETITIONER WAS TAKEN INTO CUSTODY THAT SAME EVENING AND WAS
QUESTIONED FAR INTO THE NIGHT.  HE WAS TAKEN TO AN ADJOINING TOWN,
ALLEGEDLY TO AVOID MOB VIOLENCE.  TWELVE DAYS LATER, ON JUNE 12, 1928,
HE WAS INDICTED.  IT WAS CHARGED THAT HE "DID THEN AND THERE UNLAWFULLY
AND FELONIOUSLY, WITH MALICE AFORETHOUGHT, BY SHOOTING, KILL" THE NAMED
INDIVIDUAL.  ON JUNE 15 HE WAS ARRAIGNED WITHOUT THE BENEFIT OF
COUNSEL, IT BEING ALLEGED BY PETITIONER THAT HE WAS HELD INCOMMUNICADO
FROM THE TIME OF HIS ARREST.  HE WAS HANDED A COPY OF THE FIVE-PAGE
INDICTMENT, UNDER WHICH HE COULD HAVE BEEN CONVICTED OF FIRSTDEGREE
MURDER, LESSER DEGREES OF HOMICIDE, VOLUNTARY OR INVOLUNTARY
MANSLAUGHTER, ASSAULT WITH A DEADLY WEAPON, OR LESSER DEGREES OF
ASSAULT.  VARIOUS CONSIDERATIONS OF DEFENSE, INCLUDING SELF-DEFENSE,
WERE ACCORDINGLY RAISED.  UPON BEING ASKED HOW HE PLEADED, HE EXPRESSED
A DESIRE TO PLEAD GUILTY AS CHARGED IN THE INDICTMENT.  THE TRIAL
COURT'S ORDER, WHICH BEARS STRIKING RESEMBLANCE TO THE ILLINOIS STATUTE
ON THE SUBJECT (ILL. REV. STAT., 1945, CH. 38, PAR. 732), RECITED THAT
THE JUDGE "FULLY EXPLAINED" TO PETITIONER "THE CONSEQUENCE OF SUCH
PLEA" AND HIS RIGHTS TO COUNSEL AND TO JURY TRIAL, BUT THAT PETITIONER
"PERSISTS IN HIS DESIRE TO PLEAD GUILTY" AS CHARGED.  THERE IS NO
AFFIRMATIVE EVIDENCE THAT PETITIONER UNDERSTOOD THE NECESSARY
CONSEQUENCES OF HIS PLEA OR THAT, FULLY APPRECIATING ALL OF HIS LEGAL
RIGHTS, HE INTELLIGENTLY WAIVED HIS RIGHTS TO COUNSEL OR TO JURY
TRIAL.  ALL THAT APPEARS IS THAT HE "PERSISTED" IN HIS DESIRE TO PLEAD
GUILTY AND THAT THE COURT CONVICTED HIM OF MURDER, THE STATUTORY
PUNISHMENT FOR WHICH WAS DEATH BY ELECTROCUTION OR IMPRISONMENT FOR ANY
PERIOD FROM FOURTEEN YEARS TO LIFE. 

A FURTHER HEARING WAS HELD ON THE SAME DAY AND AN ATTORNEY WAS
APPOINTED, APPARENTLY NOT AT PETITIONER'S REQUEST, TO REPRESENT
PETITIONER AT A HEARING UPON THE "QUESTION OF MITIGATION OR AGGRAVATION
OF SAID CRIME OF MURDER TO WHICH SAID DEFENDANT HAS PLEADED GUILTY." 
SUCH A HEARING WAS REQUIRED BY STATE LAW (ILL. REV. STAT., 1945, CH.
38, PAR. 732) WHERE A GUILTY PLEA HAS BEEN ENTERED AND WHERE THE COURT
HAS DISCRETION AS TO THE EXTENT OF THE PUNISHMENT.  A HEARING ON THIS
MATTER WAS HELD THREE DAYS LATER, ON JUNE 18, PETITIONER'S APPOINTED
COUNSEL BEING PRESENT.  ON JUNE 29, IN THE ABSENCE OF COUNSEL,
PETITIONER APPEARED IN COURT AND WAS SENTENCED TO SERVE 99 YEARS IN
PRISON. 

I DO NOT BELIEVE THAT THESE FACTS ADD UP TO DUE PROCESS OF LAW. 
PETITIONER, AN UNEDUCATED, BEWILDERED LAYMAN, WAS ALLEGEDLY HELD
INCOMMUNICADO FOR FIFTEEN DAYS AND WAS THEN CALLED UPON TO MAKE A VITAL
DECISION UPON THE BASIS OF HIS UNINTELLIGENT UNDERSTANDING OF THE
INDICTMENT - A LEGALISTIC, VERBOSE DOCUMENT OF FIVE PAGES WHICH WOULD
DOUBTLESS MEAN MANY THINGS TO MANY LEARNED LAWYERS IN LIGHT OF THE
PARTICULAR FACTS INVOLVED.  PETITIONER'S VERY LIFE AND LIBERTY DEPENDED
UPON HIS ABILITY TO COMPREHEND THE VARIETY OF CRIMES COVERED BY THE
INDICTMENT AND WHICH ONE, IF ANY, APPLIED TO THE FACTS OF HIS CASE.  HE
WAS COMPELLED TO WEIGH THE FACTORS INVOLVED IN A GUILTY PLEA AGAINST
THOSE RESULTING FROM THE SUBMISSION OF HIS CASE TO A JURY.  HE WAS
FORCED TO JUDGE THE CHANCES OF SETTING UP A SUCCESSFUL DEFENSE.  THESE
ARE ALL COMPLICATED MATTERS THAT ONLY A MAN VERSED IN THE LEGAL LORE
COULD HOPE TO COMPREHEND AND TO DECIDE INTELLIGENTLY.  PETITIONER
OBVIOUSLY WAS NOT OF THAT TYPE.  YET AT THIS CRUCIAL JUNCTURE
PETITIONER LACKED THE AID AND GUIDANCE OF SUCH A PERSON.  IN MY VIEW,
IT IS A GROSS MISCARRIAGE OF JUSTICE TO CONDEMN A MAN TO DEATH OR TO
LIFE IMPRISONMENT IN SUCH A MANNER.  SEE POWELL V. ALABAMA, 287 U.S.
45; WILLIAMS V. KAISER, 323 U.S. 471; RICE V. OLSON, 324 U.S. 786. 

IT IS SAID, OF COURSE, THAT PETITIONER WAIVED HIS RIGHT TO COUNSEL. 
MY ANSWER IS THAT SUCH ACTION IS IMMATERIAL IN A CAPITAL CASE OF THIS
NATURE WITHOUT AFFIRMATIVE EVIDENCE OF AN INTELLIGENT WAIVER.  SUCH
EVIDENCE IS NON-EXISTENT HERE, EVEN LOOKING SOLELY AT THE COMMON LAW
RECORD.  ITS ABSENCE BECOMES EVEN MORE EMPHASIZED WHEN WE VIEW THE
BACKGROUND OF IGNORANCE, RACIAL ANTAGONISM AND THREATS OF MOB
VIOLENCE.  WHEN THE LIFE OF A MAN HANGS IN THE BALANCE, WE SHOULD
INSIST UPON THE FULLEST MEASURE OF DUE PROCESS.  SOCIETY IS HERE
ATTEMPTING TO TAKE AWAY THE LIFE OR LIBERTY OF ONE OF ITS MEMBERS. 
THAT ATTEMPT MUST BE TESTED BY THE HIGHEST STANDARDS OF JUSTICE AND
FAIRNESS THAT WE KNOW.  IT IS NO EXCUSE THAT THE INDIVIDUAL IS WILLING
TO FOREGO CERTAIN BASIC RIGHTS, UNLESS WE ARE CERTAIN THAT HE HAS A
FULL AND INTELLIGENT COMPREHENSION OF WHAT HE IS DOING.  OTHERWISE WE
TAKE FROM DUE PROCESS OF LAW A SUBSTANTIAL PART OF ITS CONTENT. 

NOR IS IT SIGNIFICANT THAT COUNSEL WAS APPOINTED FOR PETITIONER TO
REPRESENT HIM AT THE HEARING AS TO THE MITIGATION OF THE OFFENSE.  THE
ERROR WAS DONE, THE DAMAGE WAS COMMITTED, WHEN PETITIONER WAS
ARRAIGNED, COMPELLED TO PLEAD AND CONVICTED WITHOUT THE ASSISTANCE OF
COUNSEL.  THE SPECIAL HEARING ON MITIGATION HELD THEREAFTER, FOR WHICH
COUNSEL WAS PROVIDED, AFFORDED NO OPPORTUNITY FOR UNDOING THE EFFECT OF
THE UNAIDED ARRAIGNMENT OR PLEA OF GUILTY.  CF. CANIZIO V. NEW YORK,
327 U.S. 82.  THE FAILURE TO HAVE COUNSEL IN REGARD TO THOSE MATTERS
PERMEATED THE ENTIRE PROCEEDING, WITH INDELIBLE EFFECTS THAT COULD NOT
BE REMOVED AT THE SPECIAL HEARING.  DUE PROCESS OF LAW STILL WAS
LACKING. 

INSISTENCE UPON COUNSEL AT ALL STAGES OF A CAPITAL CASE, WHERE AN
INTELLIGENT WAIVER IS LACKING, IMPOSES NO INTOLERABLE BURDEN UPON THE
LAW ENFORCEMENT PROCESS.  IT IS MERELY A RECOGNITION OF OUR ATTEMPT TO
BE CIVILIZED, A RECOGNITION THAT THE PROCESS OF CONDEMNING HUMAN LIFE
IS TO BE JUDGED BY STANDARDS HIGHER THAN THOSE APPLIED TO A PROSECUTION
FOR VIOLATION OF A MINOR ORDINANCE OR REGULATION. 

I WOULD THEREFORE REVERSE THE JUDGMENT BELOW. 
..END :







BALLARD V. UNITED STATES, 329 U.S. 187 


NO. 37.  ARGUED OCTOBER 15, 1946.  - DECIDED DECEMBER 9, 1946.  - 152
F.2D 941, REVERSED. 


1.  IN A STATE WHERE WOMEN ARE ELIGIBLE FOR JURY SERVICE UNDER LOCAL
LAW, A FEDERAL JURY PANEL FROM WHICH WOMEN ARE INTENTIONALLY AND
SYSTEMATICALLY EXCLUDED IS NOT PROPERLY CONSTITUTED AND THIS COURT WILL
EXERCISE ITS POWER OF SUPERVISION OVER THE ADMINISTRATION OF JUSTICE IN
THE FEDERAL COURTS TO CORRECT THE ERROR.  THIEL V. SOUTHERN PACIFIC
CO., 328 U.S. 217.  PP. 190-196. 

(A)  SECTIONS 275-278 OF THE JUDICIAL CODE REFLECT A DESIGN TO MAKE
THE JURY A CROSS-SECTION OF THE COMMUNITY AND TRULY REPRESENTATIVE OF
IT.  P. 191. 

(B)  THE SYSTEM OF JURY SELECTION WHICH CONGRESS HAS ADOPTED
CONTEMPLATES THAT JURIES IN FEDERAL COURTS SITTING IN STATES WHERE
WOMEN ARE ELIGIBLE FOR JURY SERVICE UNDER LOCAL LAW WILL BE
REPRESENTATIVE OF BOTH SEXES.  P. 191. 

(C)  THE SYSTEMATIC AND INTENTIONAL EXCLUSION OF WOMEN, LIKE THE
EXCLUSION OF A RACIAL GROUP OR AN ECONOMIC OR SOCIAL CLASS, DEPRIVES
THE JURY SYSTEM OF THE BROAD BASE IT WAS DESIGNED BY CONGRESS TO HAVE. 
P. 195. 

2.  WHEN A JURY IN A CRIMINAL CASE IS DRAWN FROM A PANEL NOT PROPERLY
CONSTITUTED, REVERSIBLE ERROR DOES NOT DEPEND ON A SHOWING OF PREJUDICE
IN AN INDIVIDUAL CASE; SINCE THE INJURY IS NOT LIMITED TO THE DEFENDANT
BUT EXTENDS TO THE JURY SYSTEM, TO THE LAW AS AN INSTITUTION, TO THE
COMMUNITY AT LARGE, AND TO THE DEMOCRATIC IDEAL REFLECTED IN THE
PROCESSES OF OUR COURTS.  P. 195. 

3.  WHEN THIS COURT FINDS THAT A PETIT JURY WAS DRAWN FROM AN
IMPROPER PANEL, IT WILL REMAND THE CASE FOR A NEW TRIAL; BUT WHEN IT
FINDS THAT THE GRAND JURY WHICH RETURNED AN INDICTMENT WAS DRAWN FROM
SUCH A PANEL, THE INDICTMENT MUST BE DISMISSED.  PP. 195-196. 

4.  AN ISSUE PROPERLY RAISED ON THE RECORD BY DEFENDANTS IN A
CRIMINAL CASE IN A FEDERAL DISTRICT COURT AND ASSIGNED AS ERROR ON
APPEAL WAS NOT PASSED ON BY THE CIRCUIT COURT OF APPEALS IN REVERSING
THE CONVICTION.  ON PETITION OF THE GOVERNMENT WHICH DID NOT RAISE THAT
ISSUE, THIS COURT GRANTED CERTIORARI, REVERSED THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS, AND REMANDED THE CASE TO THAT COURT, WHICH
THEN PASSED ON THE ISSUE ADVERSELY TO DEFENDANTS AND AFFIRMED THE
CONVICTION.  DEFENDANTS THEN PETITIONED FOR CERTIORARI, WHICH WAS
GRANTED.  HELD, DEFENDANTS HAVE NOT LOST THE RIGHT TO URGE THAT
QUESTION HERE.  P. 190. 

BALLARD ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PETITIONERS WERE INDICTED AND CONVICTED IN A DISTRICT COURT FOR
USING, AND CONSPIRING TO USE, THE MAILS TO DEFRAUD.  THE CIRCUIT COURT
OF APPEALS REVERSED ON THE GROUND THAT THE TRIAL JUDGE ERRED IN
WITHHOLDING FROM THE JURY ALL QUESTIONS CONCERNING THE TRUTH OR FALSITY
OF THEIR RELIGIOUS BELIEFS OR DOCTRINES.  138 F.2D 540.  ON PETITION OF
THE GOVERNMENT, THIS COURT GRANTED CERTIORARI, 320 U.S. 733, REVERSED
THE DECISION OF THE CIRCUIT COURT OF APPEALS, AND REMANDED THE CASE TO
THAT COURT FOR FURTHER PROCEEDINGS.  322 U.S. 78.  THE CIRCUIT COURT OF
APPEALS THEN AFFIRMED THE CONVICTION.  152 F.2D 941.  ON PETITION OF
DEFENDANTS, THIS COURT GRANTED CERTIORARI TO REVIEW QUESTIONS RESERVED
IN ITS PREVIOUS DECISION.  327 U.S. 773.  REVERSED, P. 196. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE FOR THE SECOND TIME.  IT INVOLVES THE INDICTMENT
AND CONVICTION OF PETITIONERS FOR USING, AND CONSPIRING TO USE, THE
MAILS TO DEFRAUD.  CRIMINAL CODE SEC. 215, 18 U.S.C. SEC. 338; CRIMINAL
CODE SEC. 37, 18 U.S.C. SEC. 88.  THE FRAUDULENT SCHEME CHARGED WAS THE
PROMOTION OF THE I AM MOVEMENT, WHICH WAS ALLEGED TO BE A FRAUDULENT
RELIGIOUS ORGANIZATION, THROUGH THE USE OF THE MAILS.  THE NATURE OF
THE MOVEMENT AND THE FACTS SURROUNDING ITS ORIGIN AND GROWTH ARE
SUMMARIZED IN OUR PRIOR OPINION.  322 U.S. 78.  IT IS SUFFICIENT HERE
TO SAY THAT PETITIONERS WERE FOUND GUILTY ON A CHARGE BY THE TRIAL
JUDGE WHICH WITHHELD FROM THE JURY ALL QUESTIONS CONCERNING THE TRUTH
OR FALSITY OF THEIR RELIGIOUS BELIEFS OR DOCTRINES.  THE CIRCUIT COURT
OF APPEALS REVERSED AND GRANTED A NEW TRIAL, HOLDING IT WAS ERROR TO
WITHHOLD THOSE QUESTIONS FROM THE JURY.  138 F.2D 540.  WE, IN TURN,
REVERSED THE CIRCUIT COURT OF APPEALS AND SUSTAINED THE DISTRICT COURT
IN THAT RULING.  PETITIONERS ARGUED, HOWEVER, THAT EVEN THOUGH THE
CIRCUIT COURT OF APPEALS ERRED IN REVERSING THE JUDGMENT OF CONVICTION
ON THAT GROUND, ITS ACTION WAS JUSTIFIED ON OTHER DISTINCT GROUNDS. 
BUT THE CIRCUIT COURT OF APPEALS HAD NOT PASSED ON THOSE OTHER
QUESTIONS; AND WE DID NOT HAVE THE BENEFIT OF ITS VIEWS ON THEM.  WE
ACCORDINGLY DEEMED IT MORE APPROPRIATE TO REMAND THE CAUSE TO THAT
COURT SO THAT IT MIGHT FIRST PASS ON THE QUESTIONS RESERVED. 

ON THE REMAND THE CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING,
AFFIRMED THE JUDGMENT OF CONVICTION WITHOUT DISCUSSION OF THE ISSUES
RAISED.  ON A PETITION FOR REHEARING, WHICH WAS DENIED, THE CIRCUIT
COURT OF APPEALS FILED AN OPINION WHICH DISCUSSED SOME BUT NOT ALL OF
THE QUESTIONS WHICH HAD BEEN RESERVED.  152 F.2D 941.  WE GRANTED THE
PETITION FOR CERTIORARI BECAUSE OF THE SERIOUS QUESTIONS CONCERNING THE
ADMINISTRATION OF CRIMINAL JUSTICE WHICH WERE RAISED. 

WE ARE MET AT THE OUTSET WITH THE CONCESSION THAT WOMEN WERE NOT
INCLUDED IN THE PANEL OF GRAND AND PETIT JURORS IN THE SOUTHERN
DISTRICT OF CALIFORNIA WHERE THE INDICTMENT WAS RETURNED AND THE TRIAL
HAD; THAT THEY WERE INTENTIONALLY AND SYSTEMATICALLY EXCLUDED FROM THE
PANEL.  FN1  THIS ISSUE WAS RAISED BY A MOTION TO QUASH THE INDICTMENT
AND BY A CHALLENGE TO THE ARRAY OF THE PETIT JURORS BECAUSE OF
INTENTIONAL AND SYSTEMATIC EXCLUSION OF WOMEN FROM THE PANEL.  BOTH
MOTIONS WERE DENIED AND THEIR DENIAL WAS ASSIGNED AS ERROR ON APPEAL. 
THE JURY QUESTION HAS BEEN IN ISSUE AT EACH STAGE OF THE PROCEEDINGS,
EXCEPT THE FIRST TIME THAT THE CASE WAS BEFORE US.  AT THAT TIME THE
POINT WAS NOT ASSIGNED OR ARGUED.  BUT THE CASE WAS HERE AT THE
INSTANCE OF THE UNITED STATES, NOT AT THE INSTANCE OF THE PRESENT
PETITIONERS.  AS WE HAVE SAID, THERE WERE OTHER ISSUES IN THE CASE
OBSCURED BY THE QUESTION BROUGHT HERE BY THE UNITED STATES AND WHICH
HAD NOT BEEN PASSED UPON BELOW OR ARGUED BEFORE THIS COURT. 
CONSEQUENTLY, WHEN WE REMANDED THE CASE FOR CONSIDERATION OF THE
REMAINING ISSUES BY THE CIRCUIT COURT OF APPEALS, THE JURY ISSUE WAS
ARGUED.  THE CIRCUIT COURT OF APPEALS DID NOT HOLD THAT IT HAD BEEN
WAIVED.  THAT COURT PASSED UPON THE ISSUE, CONCLUDING THAT THERE WAS NO
ERROR IN THE EXCLUSION OF WOMEN FROM THE PANEL.  152 F.2D P. 944, AND
SEE DISSENT AT P. 953.  UNDER THESE CIRCUMSTANCES WE CANNOT SAY (AND
THE GOVERNMENT DOES NOT SUGGEST) THAT PETITIONERS HAVE LOST THE RIGHT
TO URGE THE QUESTION HERE.  MOREOVER, IN THIS CASE, AS IN REYNOLDS V.
UNITED STATES, 98 U.S. 145, 168-169, THE ERROR, THOUGH NOT PRESENTED
HERE ON THE FIRST ARGUMENT, APPEARS ON THE FACE OF THE RECORD BEFORE
US.  AND SEE SIBBACH V. WILSON & CO., 312 U.S. 1, 16. 

CONGRESS HAS PROVIDED THAT JURORS IN A FEDERAL COURT SHALL HAVE THE
SAME QUALIFICATIONS AS THOSE OF THE HIGHEST COURT OF LAW IN THE STATE. 
JUDICIAL CODE SEC. 275, 28 U.S.C. SEC. 411.  THIS PROVISION APPLIES TO
GRAND AS WELL AS PETIT JURIES.  FN2  CONGRESS ALSO HAS PROHIBITED
DISQUALIFICATION OF CITIZENS FROM JURY SERVICE "ON ACCOUNT OF RACE,
COLOR, OR PREVIOUS CONDITION OF SERVITUDE."  FN3  IT HAS REQUIRED THAT
JURORS SHALL BE CHOSEN "WITHOUT REFERENCE TO PARTY AFFILIATIONS."  FN4
IT HAS PROVIDED THAT JURORS SHALL BE RETURNED FROM SUCH PARTS OF THE
DISTRICT AS THE COURT MAY DIRECT "SO AS TO BE MOST FAVORABLE TO AN
IMPARTIAL TRIAL, AND SO AS NOT TO INCUR AN UNNECESSARY EXPENSE, OR
UNDULY BURDEN THE CITIZENS OF ANY PART OF THE DISTRICT."  FN5 NONE OF
THE SPECIFIC EXEMPTIONS  FN6  WHICH IT HAS CREATED IS ALONG THE LINES
OF SEX. 

THESE PROVISIONS REFLECT A DESIGN TO MAKE THE JURY "A CROSS-SECTION
OF THE COMMUNITY" AND TRULY REPRESENTATIVE OF IT.  GLASSER V. UNITED
STATES, 315 U.S. 60, 86. 

IN CALIFORNIA, AS IN MOST STATES,  FN7  WOMEN ARE ELIGIBLE FOR JURY
SERVICE UNDER LOCAL LAW.  CODE OF CIVIL PROCEDURE, SEC. 198.  THE
SYSTEM OF JURY SELECTION WHICH CONGRESS HAS ADOPTED CONTEMPLATED,
THEREFORE, THAT JURIES IN THE FEDERAL COURTS SITTING IN SUCH STATES
WOULD BE REPRESENTATIVE OF BOTH SEXES.  IF WOMEN ARE EXCLUDED, ONLY
HALF OF THE AVAILABLE POPULATION IS DRAWN UPON FOR JURY SERVICE.  TO
PUT THE MATTER ANOTHER WAY, CONGRESS HAS REFERRED TO STATE LAW MERELY
TO DETERMINE WHO IS QUALIFIED TO ACT AS A JUROR.  WHETHER THE METHOD OF
SELECTING A JURY IN THE FEDERAL COURT FROM THOSE QUALIFIED IS OR IS NOT
PROPER IS A QUESTION OF FEDERAL LAW.  FN8 GLASSER V. UNITED STATES,
SUPRA, PP. 85-86. 

IN THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217, WE WERE PRESENTED
WITH A SIMILAR PROBLEM.  IT WAS A CIVIL CASE WHICH HAD BEEN REMOVED TO
THE DISTRICT COURT ON THE GROUND OF DIVERSITY OF CITIZENSHIP AND
INVOLVED A QUESTION OF THE LIABILITY OF A COMMON CARRIER TO A
PASSENGER.  ALL PERSONS WHO WORKED FOR A DAILY WAGE HAD BEEN
DELIBERATELY AND INTENTIONALLY EXCLUDED FROM THE JURY LISTS.  WE HELD,
IN THE EXERCISE OF OUR POWER OF SUPERVISION OVER THE ADMINISTRATION OF
JUSTICE IN THE FEDERAL COURTS, SEE MCNABB V. UNITED STATES, 318 U.S.
332, THAT THE PLAINTIFF'S MOTION TO STRIKE THE PANEL SHOULD HAVE BEEN
GRANTED.  THE GIST OF OUR RULING IS CONTAINED IN THE FOLLOWING
STATEMENT FROM THE OPINION IN THE THIEL CASE: 

"THE AMERICAN TRADITION OF TRIAL BY JURY, CONSIDERED IN CONNECTION
WITH EITHER CRIMINAL OR CIVIL PROCEEDINGS, NECESSARILY CONTEMPLATES AN
IMPARTIAL JURY DRAWN FROM A CROSS-SECTION OF THE COMMUNITY....  THIS
DOES NOT MEAN, OF COURSE, THAT EVERY JURY MUST CONTAIN REPRESENTATIVES
OF ALL THE ECONOMIC, SOCIAL, RELIGIOUS, RACIAL, POLITICAL AND
GEOGRAPHICAL GROUPS OF THE COMMUNITY; FREQUENTLY SUCH COMPLETE
REPRESENTATION WOULD BE IMPOSSIBLE.  BUT IT DOES MEAN THAT PROSPECTIVE
JURORS SHALL BE SELECTED BY COURT OFFICIALS WITHOUT SYSTEMATIC AND
INTENTIONAL EXCLUSION OF ANY OF THESE GROUPS.  RECOGNITION MUST BE
GIVEN TO THE FACT THAT THOSE ELIGIBLE FOR JURY SERVICE ARE TO BE FOUND
IN EVERY STRATUM OF SOCIETY.  JURY COMPETENCE IS AN INDIVIDUAL RATHER
THAN A GROUP OR CLASS MATTER.  THAT FACT LIES AT THE VERY HEART OF THE
JURY SYSTEM.  TO DISREGARD IT IS TO OPEN THE DOOR TO CLASS DISTINCTIONS
AND DISCRIMINATIONS WHICH ARE ABHORRENT TO THE DEMOCRATIC IDEALS OF
TRIAL BY JURY."  328 U.S. 220. 

WE CONCLUDE THAT THE PURPOSEFUL AND SYSTEMATIC EXCLUSION OF WOMEN
FROM THE PANEL IN THIS CASE WAS A DEPARTURE FROM THE SCHEME OF JURY
SELECTION WHICH CONGRESS ADOPTED AND THAT, AS IN THE THIEL CASE, WE
SHOULD EXERCISE OUR POWER OF SUPERVISION OVER THE ADMINISTRATION OF
JUSTICE IN THE FEDERAL COURTS, MCNABB V. UNITED STATES, SUPRA, TO
CORRECT AN ERROR WHICH PERMEATED THIS PROCEEDING. 

IT IS SAID, HOWEVER, THAT AN ALL MALE PANEL DRAWN FROM THE VARIOUS
GROUPS WITHIN A COMMUNITY WILL BE AS TRULY REPRESENTATIVE AS IF WOMEN
WERE INCLUDED.  THE THOUGHT IS THAT THE FACTORS WHICH TEND TO INFLUENCE
THE ACTION OF WOMEN ARE THE SAME AS THOSE WHICH INFLUENCE THE ACTION OF
MEN - PERSONALITY, BACKGROUND, ECONOMIC STATUS - AND NOT SEX.  FN9  YET
IT IS NOT ENOUGH TO SAY THAT WOMEN WHEN SITTING AS JURORS NEITHER ACT
NOR TEND TO ACT AS A CLASS.  MEN LIKEWISE DO NOT ACT AS A CLASS.  BUT,
IF THE SHOE WERE ON THE OTHER FOOT, WHO WOULD CLAIM THAT A JURY WAS
TRULY REPRESENTATIVE OF THE COMMUNITY IF ALL MEN WERE INTENTIONALLY AND
SYSTEMATICALLY EXCLUDED FROM THE PANEL?  THE TRUTH IS THAT THE TWO
SEXES ARE NOT FUNGIBLE; A COMMUNITY MADE UP EXCLUSIVELY OF ONE IS
DIFFERENT FROM A COMMUNITY COMPOSED OF BOTH; THE SUBTLE INTERPLAY OF
INFLUENCE ONE ON THE OTHER IS AMONG THE IMPONDERABLES.  FN10  TO
INSULATE THE COURTROOM FROM EITHER MAY NOT IN A GIVEN CASE MAKE AN IOTA
OF DIFFERENCE.  YET A FLAVOR, A DISTINCT QUALITY IS LOST IF EITHER SEX
IS EXCLUDED.  THE EXCLUSION OF ONE MAY INDEED MAKE THE JURY LESS
REPRESENTATIVE OF THE COMMUNITY THAN WOULD BE TRUE IF AN ECONOMIC OR
RACIAL GROUP WERE EXCLUDED. 

THE PRESENT CASE INVOLVES A PROSECUTION OF A MOTHER AND HER SON FOR
THE PROMOTION OF AN ALLEGEDLY FRAUDULENT RELIGIOUS PROGRAM.  JUDGE
DENMAN IN HIS DISSENT BELOW STATED: 

"IN THE AVERAGE FAMILY FROM WHICH JURORS ARE DRAWN, THE SOULS OF
CHILDREN IN THEIR INFANT AND EARLY ADOLESCENT BODIES RECEIVE THE FIRST
AND MOST LASTING TEACHING OF RELIGIOUS TRUTHS FROM THEIR MOTHERS.  IN
THE SAME FAMILIES THE MAJOR SOCIAL FUNCTION OF MEN IS CONCERNED WITH
THE CREATION OF MATERIAL THINGS, LARGELY FOOD AND CLOTHING AND HOUSING
OF THE CHILDREN'S BODIES. 

"IN THE PUBLIC SCHOOLS OVER NINETY-FIVE PER CENT OF THE PRIMARY AND
GRAMMAR SCHOOL TEACHERS ARE WOMEN.  IN THE CHURCHES OF ALL RELIGIONS
THE NUMBERS OF WOMEN ATTENDANTS ON DIVINE SERVICE VASTLY EXCEED MEN. 
THE ONE LARGE AND VITAL RELIGIOUS GROUP CREATED IN AMERICA SINCE JOSEPH
SMITH IS THAT OF THE CHRISTIAN SCIENTISTS FOUNDED BY A WOMAN, MARY
BAKER EDDY. 

"...  IT MATTERS NOT THAT FROM MY VIEWPOINT THERE IS  ...  TESTIMONY
OF A CONSPIRACY SO MEAN AND VILE THAT IT WARRANTS SOME OF THE STRONGEST
STRICTURES OF THE PROSECUTION.  I AM NOT A WOMAN JUROR SITTING IN THE
BALLARD TRIAL, WHO IS THE MOTHER OF FIVE CHILDREN AT WHOSE KNEE HAVE
BEEN INSTILLED IN THEM THE TEACHINGS OF JESUS AS INTERPRETED BY MRS.
EDDY. 

"WELL COULD A SENSITIVE WOMAN, HIGHLY SPIRITUAL IN CHARACTER,
RATIONALIZE ALL THE MONEY INCOME ACQUIRED BY MRS. BALLARD AS BEING
DEVOTED TO THE TEACHINGS OF THE SAME JESUS AS ARE THE PROFITS OF THE
TRUST CREATED BY MRS. EDDY FOR THE CHRISTIAN SCIENCE MONITOR."  152
F.2D PP. 951-52. 

THE POINT ILLUSTRATES THAT THE EXCLUSION OF WOMEN FROM JURY PANELS
MAY AT TIMES BE HIGHLY PREJUDICIAL TO THE DEFENDANTS.  BUT REVERSIBLE
ERROR DOES NOT DEPEND ON A SHOWING OF PREJUDICE IN AN INDIVIDUAL CASE. 
FN11  THE EVIL LIES IN THE ADMITTED EXCLUSION OF AN ELIGIBLE CLASS OR
GROUP IN THE COMMUNITY IN DISREGARD OF THE PRESCRIBED STANDARDS OF JURY
SELECTION.  THE SYSTEMATIC AND INTENTIONAL EXCLUSION OF WOMEN, LIKE THE
EXCLUSION OF A RACIAL GROUP, SMITH V. TEXAS, 311 U.S. 128, OR AN
ECONOMIC OR SOCIAL CLASS, THIEL V. SOUTHERN PACIFIC CO., SUPRA,
DEPRIVES THE JURY SYSTEM OF THE BROAD BASE IT WAS DESIGNED BY CONGRESS
TO HAVE IN OUR DEMOCRATIC SOCIETY.  IT IS A DEPARTURE FROM THE
STATUTORY SCHEME.  AS WELL STATED IN UNITED STATES V. ROEMIG, 52
F.SUPP.  857, 862, "SUCH ACTION IS OPERATIVE TO DESTROY THE BASIC
DEMOCRACY AND CLASSLESSNESS OF JURY PERSONNEL."  IT "DOES NOT ACCORD TO
THE DEFENDANT THE TYPE OF JURY TO WHICH THE LAW ENTITLES HIM.  IT IS AN
ADMINISTRATIVE DENIAL OF A RIGHT WHICH THE LAWMAKERS HAVE NOT SEEN FIT
TO WITHHOLD FROM, BUT HAVE ACTUALLY GUARANTEED TO HIM."  CF. KOTTEAKOS
V. UNITED STATES, 328 U.S. 750, 764-765.  THE INJURY IS NOT LIMITED TO
THE DEFENDANT - THERE IS INJURY TO THE JURY SYSTEM, TO THE LAW AS AN
INSTITUTION, TO THE COMMUNITY AT LARGE, AND TO THE DEMOCRATIC IDEAL
REFLECTED IN THE PROCESSES OF OUR COURTS. 

IF, AS IN THE THIEL CASE, WE HAD MERELY AN INSTANCE OF A PETIT JURY
DRAWN FROM AN IMPROPER PANEL, WE WOULD REMAND THE CAUSE FOR A NEW
TRIAL.  BUT, AS WE HAVE SAID, THE GRAND JURY WAS LIKEWISE DRAWN FROM A
PANEL IMPROPERLY CHOSEN AND THEREFORE THE INDICTMENT WAS NOT RETURNED
IN ACCORDANCE WITH THE PROCEDURE ESTABLISHED BY CONGRESS.  ACCORDINGLY,
THE INDICTMENT MUST BE DISMISSED.  IN DISPOSING OF THE CASE ON THIS
GROUND WE DO NOT REACH ALL THE ISSUES URGED AND IT IS SUGGESTED THAT IN
SO LIMITING OUR OPINION WE PROLONG AN ALREADY LENGTHY PROCEEDING.  WE
ARE TOLD THAT THESE PETITIONERS WILL AGAIN BE BEFORE US FOR THE
DETERMINATION OF QUESTIONS NOW LEFT UNDECIDED.  BUT WE CANNOT KNOW THAT
THIS IS SO, AND TO ASSUME IT WOULD BE SPECULATIVE.  THE UNITED STATES
MAY OR MAY NOT PRESENT NEW CHARGES FRAMED WITHIN THE LIMITS OF OUR
EARLIER OPINION.  A PROPERLY CONSTITUTED GRAND JURY MAY OR MAY NOT
RETURN NEW INDICTMENTS.  PETITIONERS MAY OR MAY NOT BE CONVICTED A
SECOND TIME.  REVERSED.    FN1  WOMEN HAVE BEEN MEMBERS OF BOTH GRAND
AND PETIT JURIES IN THAT DISTRICT SINCE THE BEGINNING OF THE FEBRUARY
TERM, 1944.  SEE UNITED STATES V. CHAPLIN, 54 F.SUPP.  682. 

FN2  THUS JUDICIAL CODE SEC. 276, 28 U.S.C. SEC. 412 PROVIDES FOR THE
DRAWING OF "ALL SUCH JURORS, GRAND AND PETIT" FROM PERSONS "POSSESSING
THE QUALIFICATIONS PRESCRIBED" IN SEC. 411. 

FN3  JUDICIAL CODE SEC. 278, 28 U.S.C. SEC. 415. 

FN4  JUDICIAL CODE SEC. 276, 28 U.S.C. SEC. 412. 

FN5  JUDICIAL CODE SEC. 277, 28 U.S.C. SEC. 413. 

FN6  NO PERSON SHALL SERVE AS A PETIT JUROR "MORE THAN ONE TERM IN A
YEAR."  JUDICIAL CODE SEC. 286, 28 U.S.C. SEC. 423. 

ARTIFICERS AND WORKMEN EMPLOYED IN ARMORIES AND ARSENALS OF THE
UNITED STATES ARE EXEMPTED FROM SERVICE AS JURORS.  50 U.S.C. SEC. 57. 
CF. JUDICIAL CODE SEC. 288, 28 U.S.C. SEC. 426, DEALING WITH
DISQUALIFICATIONS OF JURORS IN PROSECUTIONS FOR BIGAMY, POLYGAMY OR
UNLAWFUL COHABITATION. 

FN7  REPORT TO THE JUDICIAL CONFERENCE OF THE COMMITTEE ON SELECTION
OF JURORS (1942), P. 23. 

FN8  AN EARLIER INDICTMENT (SUBSEQUENTLY DISMISSED) WAS RETURNED
AGAINST PETITIONERS WHO MOVED TO QUASH BECAUSE OF THE EXCLUSION OF
WOMEN FROM THE PANEL OF GRAND JURORS.  THE MOTION WAS DENIED.  UNITED
STATES V. BALLARD, 35 F.SUPP.  105.  THAT RULING SEEMS TO HAVE BEEN
INFLUENCED BY THE THOUGHT THAT CALIFORNIA LAW DETERMINED WHETHER THE
EXCLUSION OF WOMEN RESULTED IN A PROPER JURY.  UNDER CALIFORNIA LAW THE
INCLUSION OF WOMEN ON THE PANEL IS NOT OBLIGATORY, THE STATUTORY
PROVISIONS WHICH QUALIFY THEM FOR JURY SERVICE BEING DIRECTORY ONLY. 
PEOPLE V. SHANNON, 203 CAL. 139, 263 P. 522; PEOPLE V. PARMAN, 14
CAL.2D 17,92 P.2D 387. 

FN9  SEE MILLER, THE WOMAN JUROR, 2 OREGON L. REV. 30; CF. CARSON,
WOMEN JURORS (1928), P. 15. 

FN10  THE PROBLEM IS REFLECTED IN THE DISCUSSIONS OF THE ANDROCENTRIC
THEORY AND THE GYNAECOCENTRIC THEORY IN SCIENTIFIC LITERATURE.  SEE
WARD, PURE SOCIOLOGY (1903), CH. XIV; DRAPER, DUPERTUIS AND CAUGHEY,
HUMAN CONSTITUTION IN CLINICAL MEDICINE (1944), CH. VI. 

FN11  CF. WUICHET V. UNITED STATES, 8 F.2D 561-63. 

MR. JUSTICE JACKSON, CONCURRING. 

I CONCUR IN THE RESULT, BUT FOR QUITE DIFFERENT REASONS.  I JOIN THE
OPINIONS OF MR. JUSTICE FRANKFURTER AND OF MR. JUSTICE BURTON TO THE
EFFECT THAT WE SHOULD NOT NOW DIRECT DISMISSAL OF THE INDICTMENT UPON
THE JURY QUESTION.  IN MY OPINION, THE POINT EITHER WAS ABANDONED BY
THE PARTIES OR IF NOT, WAS IGNORED OR SILENTLY REJECTED BY THE COURT IN
ITS PRIOR DECISION, 322 U.S. 78, AND SHOULD NOT BE REVIVED NOW.  I
THEREFORE REACH THE OTHER ISSUES IN THE CASE.  I WOULD DIRECT DISMISSAL
OF THE INDICTMENT UPON THE GROUNDS STATED IN DISSENT IN UNITED STATES
V. BALLARD, 322 U.S. 78 AT 92, AND A FURTHER GROUND.  THIS COURT
PREVIOUSLY RULED THAT IT IS IMPROPER FOR THE TRIAL COURT TO INQUIRE
WHETHER THE RELIGIOUS PROFESSIONS AND EXPERIENCES AS REPRESENTED BY
DEFENDANTS WERE TRUE OR FALSE BUT THAT IT CAN INQUIRE ONLY AS TO
WHETHER THEY WERE REPRESENTED WITHOUT BELIEF IN THEIR TRUTH.  THIS
LEAVES NO STATUTORY BASIS FOR CONVICTION OF FRAUD AND ESPECIALLY NO
BASIS FOR CONVICTION UNDER THIS INDICTMENT.  IT REQUIRES, IN MY
OPINION, A PROVABLY FALSE REPRESENTATION IN ADDITION TO KNOWLEDGE OF
ITS FALSITY TO MAKE CRIMINAL MAIL FRAUD.  SINCE THE TRIAL COURT IS NOT
ALLOWED TO MAKE BOTH FINDINGS, THE INDICTMENT SHOULD BE DISMISSED. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. CHIEF JUSTICE VINSON, MR.
JUSTICE JACKSON AND MR. JUSTICE BURTON JOIN. 

IN THE EXERCISE OF ITS SUPERVISORY POWER OVER THE LOWER FEDERAL
COURTS, THE COURT IS DIRECTING THE DISMISSAL OF THE INDICTMENT IN THIS
CASE, BECAUSE, FOLLOWING THE PRACTICE THEN PREVAILING IN THE FEDERAL
DISTRICT COURT IN CALIFORNIA, NO WOMEN WERE INCLUDED IN THE PANEL OF
THE GRAND JURY WHICH FOUND THE INDICTMENT.  MY BROTHER BURTON
DEMONSTRATES, I BELIEVE, THAT UNDER THE CIRCUMSTANCES THE ABSENCE OF
WOMEN FROM THE GRAND JURY PANEL DID NOT VITIATE THE INDICTMENT.  BUT,
IN ANY EVENT, THIS COURT'S AUTHORITY TO SUPERVISE PRACTICE IN THE LOWER
FEDERAL COURTS SHOULD BE EXERCISED ONLY TO VINDICATE APPROPRIATE
STANDARDS OF JUDICIAL ADMINISTRATION.  IN FINDING THAT THE EXCLUSION OF
WOMEN FROM THE GRAND JURY PANEL IS FATAL TO THE INDICTMENT, THE COURT
EMBRACES A CLAIM FOR THE BENEFIT OF THE PETITIONERS WHICH THEY
THEMSELVES ABANDONED MORE THAN FOUR YEARS AGO.  AND SINCE WOMEN HAVE
NOT BEEN EXCLUDED FROM JURY SERVICE IN THE CALIFORNIA FEDERAL COURTS
SINCE 1944, THE COURT CANNOT JUSTIFY ITS ACTION AS A MEANS OF
EMPHASIZING TO THE LOWER COURTS THE DUTY OF ADOPTING A PROPER
PRACTICE.  THUS THE COURT DIRECTS THE DISMISSAL OF AN INDICTMENT UNDER
CIRCUMSTANCES IN WHICH THE COURT'S ACTION DOES NOT ADVANCE THE PROPER
ADMINISTRATION OF CRIMINAL JUSTICE. 

THE DEFENDANTS WERE FULLY COGNIZANT OF THE FACTS AND OF THE ISSUES
INVOLVED WHEN THEY MADE THEIR OBJECTION TO THE COMPOSITION OF THE GRAND
JURY PANEL AND WHEN THEY ABANDONED IT.  THEY OBJECTED TO THE ARRAY
BEFORE THE DISTRICT COURT, SAVED THE POINT WHEN THEIR OBJECTION WAS
OVERRULED, AND ASSIGNED IT AS ONE OF THE ERRORS IN THEIR SPECIFICATIONS
ON APPEAL TO THE CIRCUIT COURT OF APPEALS.  IN AMPLE TIME FOR THE
DEFENDANTS TO RELY ON IT IN THE CIRCUIT COURT OF APPEALS, THIS COURT
DECIDED GLASSER V. UNITED STATES, 315 U.S. 60, WHICH INDICATED THAT WE
DEEMED IT IMPORTANT THAT A JURY BE SELECTED ON WHAT MAY BE DESCRIBED AS
A MODERN DEMOCRATIC BASIS.  AND YET THE POINT MADE AND OVERRULED IN THE
DISTRICT COURT WAS NOT ARGUED IN THE BRIEFS BEFORE THE CIRCUIT COURT OF
APPEALS, ALTHOUGH THE DEFENDANTS VIGOROUSLY URGED OTHER CLAIMS TO
REVERSE THEIR CONVICTIONS.  THE FACT THAT THE JURY QUESTION WAS "IN
ISSUE" BEFORE THE CIRCUIT COURT OF APPEALS, IN THE SENSE OF HAVING BEEN
ASSIGNED AS ERROR, BUT WAS NEITHER BRIEFED NOR ARGUED THERE, ONLY
SERVES TO EMPHASIZE THE ABANDONMENT OF THE ISSUE BEFORE THAT COURT. 
WHEN ON THE GOVERNMENT'S PETITION THE CASE CAME BEFORE THIS COURT, THE
DEFENDANTS SURELY PRESSED EVERY CLAIM THAT SEEMED TO THEM RELEVANT TO
SUSTAIN THE JUDGMENT WHICH THE CIRCUIT COURT OF APPEALS HAD ENTERED IN
THEIR FAVOR.  FOR IT IS TOO WELL SETTLED TO REQUIRE CITATION OF CASES
THAT THE RESPONDENT HERE MAY URGE AND SUPPORT ANY GROUND BY WHICH
JUDGMENT IN HIS FAVOR CAN BE SUSTAINED, WHETHER OR NOT IT WAS ARGUED IN
THE COURT BELOW.  THEIR BRIEFS AND ORAL ARGUMENT VIGOROUSLY URGED OTHER
ISSUES GOING TO THE VALIDITY OF THE INDICTMENT.  THE EXCLUSION OF WOMEN
WAS NOT EVEN MENTIONED.  AND THIS COURT, WITH THE FULL RECORD BEFORE
IT, TOOK NO NOTICE OF THIS QUESTION WHICH NOW IS FOUND TO UNDERMINE THE
ENTIRE PROCEEDINGS.  WHEN WE REMANDED THE CASE TO THE CIRCUIT COURT OF
APPEALS WE PLAINLY DID SO TO HAVE THAT COURT DECIDE QUESTIONS ARGUED
HERE WHICH IT HAD LEFT UNDECIDED.  WE WOULD HARDLY HAVE INVITED ITS
DECISION ON QUESTIONS WHICH HAD BEEN ABANDONED AND NOT ARGUED BEFORE
IT.  IF A PROCEDURAL POINT CAN EVER BE ABANDONED, OBJECTION TO THE JURY
PANELS WAS HERE ABANDONED. 

WITH THE GLASSER OPINION BEFORE THEM AND WITH THE POINT PROPERLY
PRESERVED IN THEIR APPEAL PAPERS, THE ABANDONMENT OF THE ISSUE BY THE
PETITIONERS, WHEN THE CASE CAME BEFORE THE CIRCUIT COURT OF APPEALS AND
LATER BEFORE US, CAN MEAN ONLY THAT THEY HAD NO CONFIDENCE IN THE
CLAIM, AND THAT, IN ANY EVENT, THEY HAD NOT BEEN HURT BY WHAT IS NOW
DEEMED A FATAL ERROR.  IT HARDLY HELPS THE PROPER ADMINISTRATION OF
CRIMINAL JUSTICE TO ALLOW THE DEFENDANTS TO RESURRECT A POINT WHICH
THEY HAD DROPPED FOUR YEARS EARLIER* . 

*THE TWO CASES INVOKED BY THE COURT ARE INAPPOSITE.  THE
CIRCUMSTANCES IN REYNOLDS V. UNITED STATES, 98 U.S. 145, 168-69, ARE SO
DIFFERENT FROM THOSE NOW BEFORE US THAT THE COURT'S ACTION IN THAT CASE
CAN AFFORD NO SUPPORT FOR WHAT IS HERE DONE.  IN AFFIRMING THE
CONVICTION THE COURT HAD NOT NOTICED THAT THE SENTENCE IMPOSED AFTER
TRIAL WAS IMPRISONMENT AT HARD LABOR, WHEREAS THE APPLICABLE STATUTE
AUTHORIZED ONLY SENTENCE TO ORDINARY IMPRISONMENT.  IT HAD NOT BEEN
CALLED TO THE COURT'S ATTENTION, AND IT WAS NOT THE KIND OF ERROR THAT
THE COURT WOULD NOTICE.  BUT THE ERROR, WHICH EVERYBODY HAD OVERLOOKED,
WOULD, IF UNCORRECTED, HAVE SUBJECTED A DEFENDANT TO PUNISHMENT FAR
MORE SEVERE THAN ANY AUTHORIZED BY CONGRESS.  IN THE CASE BEFORE US THE
ERROR, SUCH AS IT MAY BE, GOES TO A PROCEDURAL POINT NOT BEARING ON THE
FAIRNESS OF THE TRIAL, OR THE CONVICTION, OR THE SENTENCE.  AND THE
RESULT OF THIS COURT'S ACTION AS TO THIS PROCEDURAL POINT IS TO VITIATE
THE ENTIRE PROCEEDING, NOT MERELY TO REMAND FOR FORMAL RESENTENCING, AS
IN THE REYNOLDS CASE.  ALSO, IN THE REYNOLDS CASE THE COURT NOTED THE
ERROR WHEN INDICATED TO IT IN A PETITION FOR REHEARING AT THE SAME TERM
OF COURT.  IT HAD NOT PREVIOUSLY BEEN INDICATED TO ANY COURT AND
EVIDENTLY HAD NOT PREVIOUSLY BEEN NOTED BY ANYONE.  IT DID NOT, AS
HERE, MAKE ITS WAY TO THE SURFACE AFTER IT HAD BEEN DULY AND VIGOROUSLY
URGED, HAD BEEN ASSIGNED AS ERROR, THEN DROPPED, BURIED FOR THREE
YEARS, ONLY TO BE RESURRECTED AS AN AFTERTHOUGHT AND A MAKEWEIGHT TO
ARGUMENT ON THE MERITS.  AGAIN, IN SIBBACH V. WILSON & CO., 312 U.S. 1,
16, THE DISTRICT COURT SOUGHT TO PUNISH FOR CONTEMPT ACTION WHICH WAS
SPECIFICALLY EXEMPT FROM SUCH PUNISHMENT.  ERROR OF A "FUNDAMENTAL
NATURE" WAS APPARENTLY NOTICED AND PRESSED BY THE DEFENDANTS FOR THE
FIRST TIME WHEN THE CASE CAME TO THIS COURT.  AND THE COURT CONSIDERED
THE POINT WHILE THE CASE WAS BEFORE IT, NOT, AS HERE, WHEN IT REAPPEARS
AS TAIL TO ANOTHER ISSUE THREE YEARS AFTER THE RECORD CONTAINING THE
ALLEGED ERROR FIRST CAME BEFORE US. 

EVEN NOW, THIS COURT DOES NOT FIND THAT THE EXCLUSION OF WOMEN
CONSTITUTES AN INROAD ON THE VITAL SAFEGUARDS FOR A CRIMINAL TRIAL SO
AS TO INVOLVE A DENIAL OF DUE PROCESS.  THE COURT ORDERS DISMISSAL OF
AN INDICTMENT BECAUSE OF A PAST PRACTICE PURSUED IN GOOD FAITH UNDER
MISAPPREHENSION OF RELEVANT LAW.  BUT THAT MISCONCEPTION HAS BEEN
CORRECTED AND THE PROPER PRACTICE HAS BEEN ENFORCED SINCE 1944.  THE
COURT'S ORDER CANNOT SERVE AS A MEANS OF ENSURING A CHANGE IN FEDERAL
PRACTICE WHEN THAT CHANGE HAS ALREADY TAKEN PLACE. 

DISMISSAL OF THIS INDICTMENT WILL NOT PUT AN END TO PROSECUTION FOR
THE OFFENSES WHICH IT CHARGES.  AND SO IT CANNOT IN ANY EVENT RELIEVE
THE COURT FROM THE DUTY OF DECIDING THE CENTRAL ISSUE BEFORE US,
NAMELY, WHETHER THE MAILS MAY BE USED TO OBTAIN MONEY BY FRAUD WHEN THE
FRAUD CONSISTS OF A FALSE CLAIM OF BELIEF TOUCHING RELIGION.  DISMISSAL
OF THIS INDICTMENT DOES NOT TERMINATE PROSECUTION FOR THESE OFFENSES
BECAUSE CONGRESS BY THE ACT OF MAY 10, 1934(48 STAT. 772, AMENDED, JULY
10, 1940, 54 STAT. 747, 18 U.S.C. SEC. 587) HAS EXPRESSLY SAVED THIS
PROSECUTION.  BY THAT ACT, CONGRESS ALLOWED REINDICTMENT WHERE AN
INDICTMENT WAS FOUND DEFECTIVE BUT THE BASIS OF THE PROSECUTION IS LEFT
UNTOUCHED.  AS AMENDED IT PROVIDES THAT 

"WHENEVER AN INDICTMENT IS FOUND DEFECTIVE OR INSUFFICIENT FOR ANY
CAUSE, AFTER THE PERIOD PRESCRIBED BY THE APPLICABLE STATUTE OF
LIMITATIONS HAS EXPIRED, A NEW INDICTMENT MAY BE RETURNED NOT LATER
THAN THE END OF THE NEXT SUCCEEDING REGULAR TERM OF SUCH COURT,
FOLLOWING THE TERM AT WHICH SUCH INDICTMENT WAS FOUND DEFECTIVE OR
INSUFFICIENT, DURING WHICH A GRAND JURY THEREOF SHALL BE IN SESSION." 

CONSIDERING THE HISTORY OF THIS LITIGATION, THE REASONABLE ASSUMPTION
IS THAT THE GOVERNMENT WILL PRESS THIS PROSECUTION. 

A CONVICTION WAS HAD.  THE CIRCUIT COURT OF APPEALS REVERSED AND
ORDERED A NEW TRIAL.  ON PETITION OF THE GOVERNMENT WE BROUGHT THE CASE
HERE.  THE GOVERNMENT URGED THAT THE JUDGMENT OF CONVICTION BE
RESTORED, WHILE THE DEFENDANTS CHALLENGED ITS VERY FOUNDATION BY
INVOKING THE CONSTITUTIONAL GUARANTY OF FREEDOM OF RELIGION.  IN APRIL
1944, WE REVERSED THE CIRCUIT COURT OF APPEALS AND FOUND THAT THE
DISTRICT COURT HAD PROPERLY "WITHHELD FROM THE JURY ALL QUESTIONS
CONCERNING THE TRUTH OR FALSITY OF THE RELIGIOUS BELIEFS OR DOCTRINES
OF RESPONDENTS."  322 U.S. AT 88.  BUT THE CASE WAS REMANDED TO THE
CIRCUIT COURT OF APPEALS WITHOUT CONSIDERING THE QUESTION WHETHER THE
FIRST AMENDMENT AFFORDS IMMUNITY FROM CRIMINAL PROSECUTION FOR THE
PROCUREMENT OF MONEY BY FALSE STATEMENTS AS TO ONE'S RELIGIOUS
EXPERIENCES.  THREE JUSTICES CONCLUDED THAT THE VERDICT SHOULD STAND,
AND, IN AN OPINION BY THE LATE CHIEF JUSTICE, DENIED THAT THE FIRST
AMENDMENT AFFORDED IMMUNITY FOR FRAUDULENT USE OF THE MAILS SIMPLY
BECAUSE THE FALSE STATEMENTS CONCERNED RELIGIOUS BELIEFS.  A FOURTH
JUSTICE LIKEWISE THOUGHT THIS ISSUE HAD TO BE MET.  HE CONCLUDED THAT
THE INDICTMENT SHOULD BE DISMISSED BECAUSE IT RAISED ISSUES
INEXTRICABLY BOUND UP WITH TRADITIONAL LIBERTY AND COULD NOT BE
SUSTAINED IN VIEW OF THE FIRST AMENDMENT.  UPON REMAND THE CIRCUIT
COURT OF APPEALS, AFTER CONSIDERING THE ISSUES WHICH IMPLIEDLY WERE
REMITTED TO IT BY THIS COURT, FOUND NO FLAW IN THE JURY'S VERDICT AND
AFFIRMED THE CONVICTION.  AFTER THREE YEARS THE CASE IS AGAIN HERE, AND
THE MAIN ISSUE URGED, BOTH IN ARGUMENT AND IN THE EXTENSIVE BRIEFS, IS
THE POWER OF THE GOVERNMENT TO MAINTAIN THIS PROSECUTION IN VIEW OF THE
FIRST AMENDMENT.  A DECISION BY THIS COURT MERELY DIRECTING THE
DISMISSAL OF THE INDICTMENT BECAUSE OF ERROR IN THE SELECTION OF THE
GRAND JURY WHICH FOUND IT WILL INEVITABLY LEAD TO CURING OF THIS DEFECT
BY RESUBMISSION TO A PROPERLY SELECTED GRAND JURY.  IT CAN HARDLY BE
BELIEVED THAT THE GOVERNMENT WILL NOT FEEL UNDER DUTY TO DO SO.  THE
WHOLE MACHINERY OF CRIMINAL JUSTICE WILL AGAIN BE SET IN MOTION.  A
TRIAL WILL FOLLOW, AND THE DISTRICT COURT WILL NATURALLY DEEM ITSELF
BOUND TO ENTERTAIN THE PROSECUTION IN VIEW OF THE DECISION OF ITS
CIRCUIT COURT OF APPEALS, TWICE LEFT UNDISTURBED HERE, WHICH REJECTED
THE CLAIM BASED ON RELIGIOUS LIBERTY.    IT IS TOO MUCH LIKE PLAYING
WITH JUSTICE TO AWAIT A THIRD REVIEW, TWO OR THREE YEARS HENCE, BEFORE
FACING THIS ISSUE EXPLICITLY.  THE DOCTRINE THAT A CONSTITUTIONAL CLAIM
SHOULD NOT BE PREMATURELY CONSIDERED IS A VITAL FEATURE IN THE
HARMONIOUS FUNCTIONING OF OUR SCHEME OF GOVERNMENT.  BUT IT IS A RULE
FOUNDED IN REASON, NOT A MECHANICAL FORMULA FOR AVOIDING AN ASPECT OF A
LITIGATION WHICH CANNOT BE FAIRLY DECIDED WITHOUT MEETING THE
CONSTITUTIONAL ISSUE.  IF THIS CONTROVERSY COULD REALLY BE DISPOSED OF
MERELY BY FINDING THAT THE GRAND JURY WAS IMPROPERLY SELECTED,
ABSTENTION FROM A CONSTITUTIONAL ADJUDICATION WOULD BE IMPERATIVE. 
SUCH WOULD BE THE CASE IF FURTHER PROSECUTION WERE BARRED BY THE
STATUTE OF LIMITATIONS.  BUT THE ACT OF 1934, AS WE HAVE SEEN, REMOVES
THE BAR AND SANCTIONS A REINDICTMENT, WHICH IS TO BE ANTICIPATED IN
VIEW OF THE CIRCUMSTANCES OF THIS LITIGATION.  WE CANNOT ESCAPE OUR
RESPONSIBILITY BY DEALING MERELY WITH THE REMEDIABLE INVALIDITY OF THE
INDICTMENT, LEAVING UNTOUCHED THE DECISION OF THE CIRCUIT COURT OF
APPEALS THAT THE PROSECUTION IS VALID.  OF COURSE THE DEFENDANTS MIGHT
BE ACQUITTED AT A NEW TRIAL.  BUT A COURT WHICH PURPORTS TO EXERCISE
SUPERVISORY AUTHORITY IN THE INTERESTS OF THE ADMINISTRATION OF
CRIMINAL JUSTICE OUGHT NOT TO PERMIT THE WASTE AND UNFAIRNESS INVOLVED
IN A NEW TRIAL IF THERE IS NO FOUNDATION FOR IT.  ESPECIALLY IS THIS A
CLAIM ON THE PROPER ADMINISTRATION OF JUSTICE IN A CASE WHICH HAS BEEN
IN THE COURTS FOR ALMOST SIX YEARS, AND WHICH IS NOW STARTING ON A NEW
ROUND AS A RESULT OF THE COURT'S DECISION. 

IN SHORT, THE PROSECUTION WILL CONTINUE UNLESS WE TERMINATE IT.  WE
CAN TERMINATE IT ONLY IF THIS COURT SHOULD DEEM BEYOND CONSTITUTIONAL
AUTHORITY A PROSECUTION OF THE CHARGES UPON WHICH THE JURY FOUND THE
DEFENDANTS GUILTY AND WHICH THE CIRCUIT COURT OF APPEALS SUSTAINED.  WE
OUGHT NOT TO GIVE IMPLIED SANCTION TO THE CONTINUANCE OF THIS
PROSECUTION, IF WE DO NOT MEAN TO DO SO, BY WITHHOLDING OUR VIEW ON AN
ISSUE INESCAPABLE IN THE FULL DISPOSITION OF THE CONTROVERSY BEFORE THE
COURT.  CANDOR REPELS IT AND THE REQUIREMENTS OF CONSTITUTIONAL
ADJUDICATION DO NOT JUSTIFY IT. 

MR. JUSTICE BURTON, DISSENTING. 

ALTHOUGH I CONCUR IN THIS COURT'S POLICY OF REQUIRING THE INCLUSION
IN FEDERAL JURY LISTS IN CALIFORNIA OF WOMEN QUALIFIED FOR SERVICE AS
JURORS OF THE HIGHEST COURT OF LAW IN THAT STATE, I BELIEVE THAT WE ARE
NOT JUSTIFIED IN DISMISSING THE INDICTMENT RETURNED IN THIS CASE IN
1941 MERELY BECAUSE WOMEN WERE NOT INCLUDED IN SUCH LISTS AT THAT
TIME.  IN THE ABSENCE OF A BINDING STATUTORY OR COURT RULE THEN
REQUIRING SUCH INCLUSION OF WOMEN, THE DISTRICT COURT WAS COMPELLED TO
EXERCISE ITS OWN DISCRETION IN INCLUDING OR EXCLUDING THEM.  WITHOUT
DEPENDING ON THE BREADTH OF THE DISCRETION WHICH SHOULD BE ALLOWED TO A
DISTRICT COURT UNDER THOSE CIRCUMSTANCES, I SUBMIT THAT THE REASONS FOR
THE DISTRICT COURT ACTION STRENGTHEN THE POSITION THAT THIS COURT
SHOULD NOT NOW RETROACTIVELY DISAPPROVE THE ESTABLISHED LOCAL FEDERAL
PRACTICE WHICH CONFORMED ALMOST EXACTLY WITH THE ESTABLISHED STATE
PRACTICE. 

EVER SINCE ITS FIRST JUDICATURE ACT, CONGRESS HAS SUBORDINATED
FEDERAL PRACTICE TO STATE LAW IN DETERMINING THE QUALIFICATIONS OF
FEDERAL JURORS.  IN THAT ACT IT SAID:  "THE JURORS SHALL HAVE THE SAME
QUALIFICATIONS AS ARE REQUISITE FOR JURORS BY THE LAWS OF THE STATE OF
WHICH THEY ARE CITIZENS, TO SERVE IN THE HIGHEST COURTS OF LAW OF SUCH
STATE,  ..."  SECTION 29, ACT OF SEPTEMBER 24, 1789, 1 STAT. 73, 88. 
SIMILARLY, THE PRESENT LAW READS:  "JURORS TO SERVE IN THE COURTS OF
THE UNITED STATES, IN EACH STATE RESPECTIVELY, SHALL HAVE THE SAME
QUALIFICATIONS, SUBJECT TO THE PROVISIONS HEREINAFTER CONTAINED, AND BE
ENTITLED TO THE SAME EXEMPTIONS, AS JURORS OF THE HIGHEST COURT OF LAW
IN SUCH STATE MAY HAVE AND BE ENTITLED TO AT THE TIME WHEN SUCH JURORS
FOR SERVICE IN THE COURTS OF THE UNITED STATES ARE SUMMONED."  SECTION
275, JUDICIAL CODE, 36 STAT. 1087, 1164, 28 U.S.C. SEC. 411.  FN1 

THERE IS NO CONSTITUTIONAL, STATUTORY OR COURT RULE OR POLICY
REQUIRING WOMEN TO BE PLACED ON ALL FEDERAL JURY LISTS.  CONGRESS MIGHT
HAVE REQUIRED SUCH A COURSE AND MIGHT HAVE SET UP COMPLETE FEDERAL
QUALIFICATIONS FOR FEDERAL JURORS, BUT IT NEVER HAS DONE SO.  INSTEAD,
IT HAS PROVIDED THAT STATE ACTION SHALL DETERMINE MOST OF THE
QUALIFICATIONS FOR FEDERAL JURY SERVICE.  AS A RESULT, IT WOULD BE
REVERSIBLE ERROR FOR THE FEDERAL COURTS TO INCLUDE WOMEN ON FEDERAL
JURIES IN THOSE STATES WHICH DO NOT MAKE WOMEN ELIGIBLE FOR SERVICE AS
JURORS OF THE HIGHEST COURT OF LAW IN SUCH STATES.  CF. CROWLEY V.
UNITED STATES, 194 U.S. 461.  THIS IS AN INESCAPABLE RECOGNITION BY
CONGRESS THAT IT SEES NOTHING SERIOUSLY PREJUDICIAL IN THE CONTINUED
USE OF EXCLUSIVELY MALE FEDERAL JURIES IN STATES WHERE WOMEN ARE NOT
ELIGIBLE FOR STATE JURY DUTY.  THE AVAILABILITY OF APPROPRIATE
ACCOMMODATIONS FOR THE TWO SEXES HAS BEEN TREATED AS A MATERIAL FACTOR
IN DETERMINING WHETHER WOMEN AND MEN SHALL BE CALLED FOR JURY DUTY. 
ACTS AND RESOLVES OF R.I. (1939), C. 700, SEC. 37; PEOPLE V. SHANNON,
203 CAL. 139, 263 P. 522.  SEE REPORT TO THE JUDICIAL CONFERENCE OF THE
COMMITTEE ON THE SELECTION OF JURORS (1942), P. 23.  SUBORDINATION OF
THE NEED FOR WOMEN ON FEDERAL JURIES TO THE AVAILABILITY OF PHYSICAL
ACCOMMODATIONS FOR THEM IS A TACIT RECOGNITION THAT NO FUNDAMENTAL
INFRACTION OF THE RIGHTS OF LITIGANTS IS INVOLVED IN THE CONTINUANCE OF
EXCLUSIVELY MALE JURIES. 

IN SOME EMPLOYMENTS, WOMEN ARE DISTINGUISHED FROM MEN, AS A MATTER OF
LAW, IN CONNECTION WITH THEIR HOURS AND CONDITIONS OF WORK.  WEST COAST
HOTEL CO. V. PARRISH, 300 U.S. 379.  THESE DISTINCTIONS ARE DUE TO
CONSIDERATIONS NOT APPLICABLE TO JURY SERVICE.  THE GENERAL AND
INCREASING ABSENCE OF SOUND REASONS FOR DISTINCTIONS BETWEEN MEN AND
WOMEN IN MATTERS OF SUFFRAGE, OFFICE HOLDING, EDUCATION, ECONOMIC
STATUS, CIVIL LIBERTIES, CHURCH MEMBERSHIP, CULTURAL ACTIVITIES, AND
EVEN WAR SERVICE, EMPHASIZES THE LACK OF REASON FOR MAKING A POINT OF
THE PRESENCE OR ABSENCE OF EITHER SEX, AS SUCH, ON EITHER GRAND OR
PETIT JURIES.  SEE MILLER, THE WOMAN JUROR (1922), 2 ORE.  L. REV. 30,
40. 

BY A GENERAL PRACTICE OF NOT CALLING WOMEN FOR JURY DUTY ALTHOUGH
ELIGIBLE FOR SUCH DUTY, THE STATE COURTS OF CALIFORNIA, IN EFFECT, HAVE
GRANTED WOMEN A SUBSTANTIAL EXEMPTION FROM THAT DUTY.  PEOPLE V.
PARMAN, 14 CAL.2D 17, 92 P.2D 387; PEOPLE V. SHANNON, SUPRA.  SEE
UNITED STATES V. BALLARD, 35 F.SUPP.  105, 107.  THE CALIFORNIA COURTS
THUS HAVE TREATED MEN AND WOMEN AS EQUALLY QUALIFIED AND HAVE ASSUMED
THAT LITIGANTS WILL HAVE AN ADEQUATE IMPARTIAL JURY, REGARDLESS OF THE
SEX OF THE JURORS, PROVIDED THE JURORS OTHERWISE ARE QUALIFIED TO
SERVE.  CF. HYDE V. UNITED STATES, 225 U.S. 347, 374; AGNEW V. UNITED
STATES, 165 U.S. 36, 44.  WHILE SUCH A STATE PRACTICE IS NOT BINDING
UPON THE FEDERAL COURTS AS A MATTER OF LAW, YET IT IS PERSUASIVE AS
INDICATING THAT LITIGANTS NEED NOT BE TREATED AS HAVING BEEN PREJUDICED
WHEN A FEDERAL DISTRICT COURT HAS CONFORMED ITS PRACTICE TO THAT OF THE
STATE.  FOR THE STATE RULE SEE PEOPLE V. PARMAN, SUPRA; IN RE MANA, 178
CAL. 213, 172 P. 986; PEOPLE V. MANUEL, 41 CAL. APP. 153, 182 P. 306. 

THE ERROR IN THE FEDERAL PRACTICE CANNOT BE THE EXCLUSION OF WOMEN,
AS SUCH, BECAUSE SUCH EXCLUSION NOT ONLY IS PERMITTED BUT IS REQUIRED
BY FEDERAL STATUTE IN STATES WHERE THEY ARE NOT ELIGIBLE FOR STATE JURY
DUTY.  THE ERROR, IF ANY, MUST CONSIST OF THE FAILURE TO REQUIRE THE
LISTING OF WOMEN, AS WELL AS MEN, FOR ALL FEDERAL JURY SERVICE IN A
STATE WHICH PERMITS SUCH LISTING FOR STATE JURY SERVICE, EVEN THOUGH
THE STATE REGARDS SUCH LISTING AS DIRECTORY TO AND NOT MANDATORY UPON
THE STATE COURTS. 

THERE ARE AMPLE GROUNDS FOR DISTINGUISHING THIEL V. SOUTHERN PACIFIC
CO., 328 U.S. 217, FROM THIS CASE.  FOR EXAMPLE, IN THE THIEL CASE, THE
COURT ACTED IN THE ABSENCE OF ACTUAL NOTICE THAT THE OBJECTIONABLE
PRACTICE HAD BEEN DISCONTINUED,  FN2  WHEREAS, HERE, WE HAVE NOTICE
THAT THE PRACTICE OBJECTED TO WAS CHANGED MORE THAN TWO YEARS AGO TO
CONFORM, AT LEAST SUBSTANTIALLY, TO THE APPROVED PRACTICE.  ALSO, IN
THE THIEL CASE, THE PROCEDURE COMPLAINED OF CONSISTED OF THE EXCLUSION
OF AN ECONOMIC GROUP, THEREBY DETRACTING FROM THE REPRESENTATIVE
CHARACTER OF THE JURY LIST, IN A MANNER CONTRARY TO THE TRADITION AND
PURPOSE OF THE JURY SYSTEM.  HERE THE EXCLUSION OF WOMEN, AS SUCH, FROM
JURY SERVICE NOT ONLY WAS IN ACCORDANCE WITH THE TRADITIONAL PRACTICE,
BUT IS IN ACCORDANCE WITH THE CONGRESSIONALLY APPROVED FUTURE PRACTICE
IN THE FEDERAL AND STATE COURTS OF ABOUT 40% OF THE STATES.  THIS SHOWS
THAT THE ONLY OBJECTIONABLE PRACTICE HERE WAS THAT, AFTER THE STATE HAD
ESTABLISHED A DIRECTORY SYSTEM OF ELIGIBILITY OF WOMEN FOR STATE JURY
SERVICE, THE FEDERAL COURT DID NOT AT ONCE ENLARGE THAT POLICY INTO A
MANDATORY REQUIREMENT THAT ALL QUALIFIED WOMEN BE PLACED UPON ALL
FEDERAL JURY LISTS. 

FOR THESE REASONS, I AM UNABLE TO CONCUR IN THE JUDGMENT SETTING
ASIDE THE INDICTMENT AND VERDICT.  THE CONVICTIONS IN THIS CASE SHOULD
BE AFFIRMED, AND I CONCUR IN THE STATEMENT BY MR. CHIEF JUSTICE STONE:
"CERTAINLY NONE OF RESPONDENTS' CONSTITUTIONAL RIGHTS ARE VIOLATED IF
THEY ARE PROSECUTED FOR THE FRAUDULENT PROCUREMENT OF MONEY BY FALSE
REPRESENTATIONS AS TO THEIR BELIEFS, RELIGIOUS OR OTHERWISE."  UNITED
STATES V. BALLARD, 322 U.S. 78, 90. 

FN1  THE FEDERAL COURTS, THEREFORE, ARE BOUND BY STATE DEFINITIONS OF
JURORS' QUALIFICATIONS SUBJECT TO FEDERAL CONSTITUTIONAL AND STATUTORY
LIMITATIONS.  IT HAS BEEN ARGUED THAT THE FIFTH AND SIXTH AMENDMENTS TO
THE CONSTITUTION GUARANTEE THE CONTINUANCE OF THE EXCLUSIVELY MALE
COMMON LAW FEDERAL JURIES, BUT IT IS NOW GENERALLY AGREED THAT WOMEN
ARE QUALIFIED TO SERVE ON FEDERAL JURIES WHEREVER THE STATES HAVE
DECLARED THEM QUALIFIED AS JURORS OF THE HIGHEST COURT OF LAW IN THEIR
RESPECTIVE STATES.  SEE UNITED STATES V. WOOD, 299 U.S. 123, 145; TYNAN
V. UNITED STATES, 297 F. 177, 178-179, CERT. DENIED, 266 U.S. 604;
HOXIE V. UNITED STATES, 15 F.2D 762, CERT. DENIED, 273 U.S. 755. 

FN2  IT NOW APPEARS, HOWEVER, THAT, BEGINNING IN 1943, THE PRACTICE
OBJECTED TO IN THE THIEL CASE HAS BEEN DISCONTINUED.  LOUIS E. GOODMAN,
U.S. DISTRICT JUDGE, N.D., CALIF., FEDERAL JURY SELECTIONS AS AFFECTED
BY THIEL V. SOUTHERN PACIFIC COMPANY, 21 JOURNAL OF THE STATE BAR OF
CALIFORNIA 352, 357. 

MR. CHIEF JUSTICE VINSON AND MR. JUSTICE FRANKFURTER JOIN IN THIS
DISSENT.  MR. JUSTICE JACKSON JOINS IN IT EXCEPT IN SO FAR AS THE FINAL
PARAGRAPH RELATES TO AN AFFIRMANCE OF THE CONVICTIONS. 
..END :













UNITED STATES V. BRUNO, 329 U.S. 207 


NO. 67.  ARGUED NOVEMBER 22, 1946.  - DECIDED DECEMBER 9, 1946.  - 153
F.2D 843, REVERSED. 


IN A CRIMINAL TRIAL FOR SELLING WASTE PAPER AT A PRICE ABOVE THE
CEILING FIXED BY MAXIMUM PRICE REGULATION 30 PURSUANT TO SEC. 205(B) OF
THE EMERGENCY PRICE CONTROL ACT OF 1942, EVIDENCE THAT THE DEFENDANT
SOLD AT A PRICE ABOVE THE CEILING BY FALSELY DESCRIBING THE GRADE AND
THAT HE ACCEPTED PAYMENT AT THE EXCESSIVE PRICE, HELD SUFFICIENT TO
SUPPORT A CONVICTION, ALTHOUGH IT ALSO SHOWED THAT THE SALES WERE
SUBJECT TO THE RIGHT OF CUSTOMERS TO REJECT PAPER OF LOWER GRADE THAN
REPRESENTED AND THAT, IN THREE OUT OF FIVE CASES COVERED BY A FIVE
COUNT INFORMATION WHERE CUSTOMERS OBJECTED AND THE OFFICE OF PRICE
ADMINISTRATION HAD MADE AN INVESTIGATION, DEFENDANT SUBSEQUENTLY
ADJUSTED THE PRICE TO THE CEILING PRICE FOR THE GRADE ACTUALLY
DELIVERED.  PP. 210, 211. 

UNITED STATES V. BRUNO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

PETITIONER WAS CONVICTED OF SELLING WASTE PAPER AT A PRICE ABOVE THE
CEILING FIXED BY MAXIMUM PRICE REGULATION 30 PURSUANT TO SEC. 205(B) OF
THE EMERGENCY PRICE CONTROL ACT OF 1942.  THE CIRCUIT COURT OF APPEALS
REVERSED.  153 F.2D 843.  THIS COURT GRANTED CERTIORARI.  328 U.S.
828.  REVERSED, P. 211. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

A CRIMINAL INFORMATION WAS BROUGHT AGAINST BRUNO FOR HAVING WILFULLY
SOLD  FN1  WASTE PAPER AT PRICES HIGHER THAN THE CEILINGS ESTABLISHED
BY MAXIMUM PRICE REGULATION 30.  FN2  THE INFORMATION CONTAINED FIVE
COUNTS, EACH COUNT CHARGING A SALE OF A CARLOAD LOT IN 1944 AT PRICES
ABOVE THE ESTABLISHED CEILINGS.  THE JURY FOUND BRUNO GUILTY ON ALL
FIVE COUNTS.  HE WAS SENTENCED TO IMPRISONMENT FOR SIX MONTHS AND FINED
$500.  THE JUDGMENT OF CONVICTION WAS REVERSED BY THE CIRCUIT COURT OF
APPEALS.  153 F.2D 843.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI WHICH WE GRANTED BECAUSE OF AN ASSERTED CONFLICT IN
PRINCIPLE BETWEEN THE DECISION BELOW AND UNITED STATES V. SEIDMON, 154
F.2D 228, IN THE SEVENTH CIRCUIT COURT OF APPEALS. 

BRUNO WAS IN CHARGE OF A BUSINESS, OWNED BY A RELATIVE, WHICH BOUGHT
AND SOLD WASTE PAPER.  CARRANO WAS A MIDDLEMAN WHO BOUGHT WASTE PAPER
FROM BRUNO ON ORDERS FROM CARRANO'S CUSTOMERS.  THE PAPER WAS SHIPPED
BY BRUNO DIRECT TO THE CUSTOMERS, CARRANO PAYING BRUNO THE PRICE. 

IN EACH OF THE FIVE SALES CHALLENGED HERE, CARRANO ORDERED FROM BRUNO
A GRADE OF PAPER KNOWN AS NO. 1 ASSORTED KRAFT.  IN EACH, BRUNO
INVOICED THE SHIPMENT AS SUCH AND CHARGED THE CEILING PRICE FOR THAT
GRADE OF WASTE PAPER.  CARRANO PAID BRUNO THE INVOICE PRICE.  IT
APPEARS THAT THE ORDERS WERE SUBJECT TO INSPECTION AND APPROVAL OF THE
WASTE PAPER BY THE CUSTOMERS; THAT THEY CUSTOMARILY MADE THE
INSPECTIONS ON RECEIPT OF THE SHIPMENTS; AND THAT IF THE PAPER WAS
BELOW THE GRADE AT WHICH IT HAD BEEN INVOICED, THE CUSTOMERS WOULD PAY
CARRANO THE LOWER CEILING PRICE, CARRANO DEBITING BRUNO WITH THE
DIFFERENCE.  EACH OF THE FIVE SHIPMENTS IN QUESTION WAS INSPECTED BY
THE CUSTOMER ON ITS ARRIVAL.  IT WAS DISCOVERED THAT EACH SHIPMENT WAS
LARGELY COMPOSED OF CORRUGATED PAPER, A GRADE CARRYING A LOWER CEILING
PRICE.  IN THREE CASES, THE CUSTOMERS PAID CARRANO ONLY FOR THE QUALITY
OF WASTE PAPER RECEIVED.  CARRANO THEREUPON DEBITED BRUNO WITH THE
DIFFERENCE.  IN TWO CASES, THE CUSTOMER DID NOT COMPLAIN OF THE
UPGRADING AND BRUNO RETAINED THE OVER-CHARGES.  FN3  MOREOVER, THE
DEBITS TO BRUNO IN THE THREE INSTANCES MENTIONED FOLLOWED ON THE HEELS
OF AN INVESTIGATION BY THE OFFICE OF PRICE ADMINISTRATION.  IT ALSO
APPEARS THAT THE DEBITS WERE NOT SHOWN ON BRUNO'S BOOKS.  HIS LEDGER
SHOWED SALES, NOT AT THE INVOICE PRICE, BUT AT LOWER PRICES.  THE
CONCEALED AMOUNTS WERE EXPLAINED BY BRUNO AS CONSTITUTING HIS
COMMISSIONS ON THE SALES. 

THE DISTRICT COURT CHARGED THE JURY THAT "BEFORE YOU CAN FIND HIM
GUILTY, THERE MUST HAVE BEEN IN HIS MIND AN INTENTION NOT TO SET A
PRICE AND THEN HAVE IT ADJUSTED AFTERWARDS ACCORDING TO THE TRUTH OF
THE SITUATION, BUT AN INTENT TO FIX THIS PRICE AND CHARGE IT AND GET
AWAY WITH IT,  - AN INTENT TO COMMIT THE CRIME, THE FORMATION OF A
PURPOSE IN HIS MIND WHEN HE DID THIS THING, TO GET MORE MONEY FOR THAT
PAPER THAN THE CEILING PRICE ESTABLISHED BY LAW."  FN4  THE COURT ALSO
CHARGED THAT THERE COULD BE NO CONVICTION IF BRUNO DID NOT SELL THE
WASTE PAPER "WITH THE INTENT OF RECEIVING HIGHER THAN CEILING PRICE,
AND DID NOT ACTUALLY RECEIVE HIGHER THAN CEILING PRICE." 

WE THINK IT WAS PROPER TO SUBMIT THE CASE TO THE JURY.  THE EVIDENCE
SEEMS TO US AMPLE TO SUPPORT THE CONVICTION.  THERE WAS FALSE GRADING
IN EACH INVOICE.  THE SALES WERE NOT MADE AT A PRICE TO BE DETERMINED
ON THE CUSTOMERS' INSPECTION OF THE GRADE.  THEY WERE MADE AT SPECIFIC
INVOICE PRICES WHICH WERE ABOVE THE CEILING.  THE GOODS WERE DELIVERED
AT THOSE PRICES; AND THOSE WERE THE PRICES ACTUALLY PAID.  IN SOME
INSTANCES THERE WAS A SUBSEQUENT ADJUSTMENT OF THE PRICE TO CONFORM TO
THE PRICE CEILING FOR THE GRADE ACTUALLY SHIPPED.  BUT IN OTHERS THERE
WAS NOT.  AND BEARING ON THE INTEGRITY OF THE SYSTEM WERE TWO OTHER
FACTS - (1) THE DEBITS MADE FOLLOWED THE OPA INVESTIGATION; (2) THE
INFLATED PRICES WERE NOT DISCLOSED ON BRUNO'S BOOKS.  IN A SELLER'S
MARKET UPGRADING MAY BE A CONVENIENT DEVICE FOR BLACK MARKET
OPERATIONS.  AS THE CIRCUIT COURT OF APPEALS NOTED, WHEN PAPER IS
SCARCE THE SELLER MAY SEND NOT WHAT IS ORDERED BUT WHAT HE HAS, ON THE
ASSUMPTION THAT MANUFACTURERS WILL BE GLAD TO TAKE ANY KIND OF PAPER
THEY CAN GET.  IN VIEW OF THE INADEQUACY OF THE SUPPLY, BUYERS CANNOT
ALWAYS BE EXPECTED TO REJECT UPGRADED SHIPMENTS OR INSIST UPON PRICE
ADJUSTMENTS.  THE FACTS OF THIS CASE SUSTAIN THAT THEORY, FOR IN TWO
INSTANCES NO PRICE ADJUSTMENT WAS SOUGHT OR MADE.  IN VIEW OF ALL THE
CIRCUMSTANCES, THE JURY COULD WELL CONCLUDE THAT THE SYSTEM ADOPTED BY
BRUNO WAS DESIGNED TO BRING HIM MORE FOR THE GOODS THAN WAS LAWFUL. 
REVERSED. 

FN1  SECTION 205(B), EMERGENCY PRICE CONTROL ACT OF 1942, 56 STAT.
23, 33, 50 U.S.C. APP. SUPP. III SEC. 925(B). 

FN2  SEE 7 FED. REG. 9732, 8 FED. REG. 13049, 17483. 

FN3  THE CIRCUIT COURT OF APPEALS SEEMED TO PROCEED ON THE ASSUMPTION
THAT IN NO INSTANCE DID THE ULTIMATE PRICE WHICH WAS PAID EXCEED THE
CEILING PRICE. 

FN4  THE PRECEDING PART OF THE CHARGE WAS: 

"IN ORDER THAT THERE MAY BE A CRIME HERE, THERE MUST HAVE BEEN AN
INTENT ON THE PART OF THIS DEFENDANT TO COMMIT THAT CRIME, WHICH WAS TO
RECEIVE A PRICE FOR THE PAPER WHICH HE SOLD WHICH WAS IN EXCESS OF THE
CEILING PRICE.  NOW, IF ACTUALLY THERE HAD BEEN PAID TO HIM MORE THAN
THE CEILING PRICE, BUT IT WAS THE INTENT AND INTENTION OF ALL PERSONS
RESPECTING IT, NOT TO ACCEPT THAT AS THE FINAL PRICE NECESSARILY, BUT
TO ACCEPT IT SUBJECT TO ADJUSTMENT WHICH WOULD BE MADE UPON THE
EXAMINATION OF THE PAPER ACTUALLY DELIVERED AND THE ESTABLISHMENT OF
THE PRICE SET BY LAW FOR THAT PAPER, THAT IS, IF THEY HAD THE IDEA THAT
THE ONLY PRICE TO BE RECEIVED WAS THAT WHICH THE LAW SET FOR THE PAPER
ACTUALLY DELIVERED, AND THAT ACTUALLY WAS WHAT WAS PAID, THEN THERE WAS
NO INTENT ON HIS PART TO BREAK THE LAW.  BUT IF HE SOLD THIS PAPER TO
THE DEALER, THE WHOLESALE DEALER FOR A PRICE WHICH WAS ABOVE THE
CEILING PRICE, AND THAT WAS THE PRICE THAT HE INTENDED TO GET, AND IF
YOU FIND AS A FACT THAT THE ONLY REASON HE DIDN'T GET IT WAS BECAUSE HE
DIDN'T GET IT, STILL HE WOULD HAVE HAD AN INTENT TO COMMIT HAVING
INTENT TO DO THE HONEST DECENT THING, AND THAT WAS THE ONLY REASON HE
DIDN'T GET IT, STILL HE WOULD HAVE HAD AN INTENT TO COMMIT THE CRIME
AND WOULD HAVE EFFECTIVELY COMMITTED IT WHEN HE RECEIVED ABOVE-CEILING
PRICE WHICH HE INTENDED TO RECEIVE, IF HE DID SO INTEND, AND IF THE
ONLY REASON THAT HE DIDN'T GET THE CEILING PRICE WAS BECAUSE HE WAS
FOUND OUT." 
..END :
























FISWICK V. UNITED STATES, 329 U.S. 211 


NO. 51.  ARGUED NOVEMBER 19, 20, 1946.  - DECIDED DECEMBER 9, 1946.  -
153 F.2D 176, REVERSED. 


1.  PETITIONERS AND OTHERS WERE INDICTED FOR CONSPIRACY TO DEFRAUD THE
UNITED STATES IN VIOLATION OF SEC. 37 OF THE CRIMINAL CODE.  THE
INDICTMENT CHARGED THAT PETITIONERS CONSPIRED WITH EACH OTHER, AND WITH
OTHERS, TO DEFRAUD THE UNITED STATES BY CONCEALING AND MISREPRESENTING
THEIR MEMBERSHIP IN THE NAZI PARTY.  THE LAST OVERT ACT ALLEGED TO HAVE
BEEN COMMITTED BY ANY OF THE PETITIONERS WAS THE FILING BY ONE OF THEM
OF A REGISTRATION STATEMENT UNDER THE ALIEN REGISTRATION ACT OF 1940,
IN WHICH HE FALSELY FAILED TO DISCLOSE HIS CONNECTION WITH AND
ACTIVITIES IN THE NAZI PARTY.  HELD THAT THE CONSPIRACY CHARGED AND
PROVED DID NOT EXTEND BEYOND THE DATE OF THE LAST OVERT ACT, AND THAT
ADMITTANCE IN EVIDENCE AGAINST ALL OF THE PETITIONERS OF ADMISSIONS
MADE AFTER THAT DATE BY ONE OF THE PETITIONERS WAS REVERSIBLE ERROR. 
PP. 215-220. 

(A)  THOUGH THE RESULT OF A CONSPIRACY MAY BE CONTINUING, THE
CONSPIRACY IS NOT A CONTINUING ONE UNLESS THERE IS CONTINUOUS
COOPERATION OF THE CONSPIRATORS TO PRODUCE THE UNLAWFUL RESULT.  P.
216. 

(B)  AN OVERT ACT BEING NECESSARY TO COMPLETE THE OFFENSE OF
CONSPIRACY UNDER SEC. 37 OF THE CRIMINAL CODE, THE OVERT ACTS AVERRED
AND PROVED MAY MARK THE DURATION, AS WELL AS THE SCOPE, OF THE
CONSPIRACY.  P. 216. 

(C)  THE CONSPIRACY CHARGED AND PROVED DID NOT EXTEND BEYOND THE DATE
OF THE LAST OVERT ACT (THE FILING OF THE FALSE REGISTRATION STATEMENT)
AND THE SUBSEQUENT ADMISSIONS OF EACH DEFENDANT WERE IMPROPERLY
EMPLOYED AGAINST THE OTHERS.  P. 217. 

(D)  WHILE THE ACT OF ONE CONSPIRATOR IS ADMISSIBLE AGAINST THE
OTHERS, IF IT IS IN FURTHERANCE OF THE CRIMINAL UNDERTAKING, ALL SUCH
RESPONSIBILITY ENDS WHEN THE CONSPIRACY ENDS.  P. 217. 

(E)  CONFESSION OR ADMISSION BY ONE CO-CONSPIRATOR AFTER HE WAS
APPREHENDED WAS NOT IN FURTHERANCE OF THE CONSPIRACY TO DECEIVE THE
GOVERNMENT BUT HAD THE EFFECT OF TERMINATING THE CONSPIRACY, SO FAR AS
HE WAS CONCERNED, AND MADE HIS ADMISSIONS INADMISSIBLE AGAINST HIS
ERSTWHILE FELLOW-CONSPIRATORS.  P. 217. 

(F)  IT CANNOT BE SAID WITH FAIR ASSURANCE IN THIS CASE THAT THE JURY
WAS NOT SUBSTANTIALLY SWAYED BY THE USE OF THESE ADMISSIONS AGAINST ALL
DEFENDANTS AND, THEREFORE, IT CANNOT BE CONSIDERED A "HARMLESS ERROR"
WITHIN THE CONTEMPLATION OF SEC. 269 OF THE JUDICIAL CODE.  KOTTEAKOS
V. UNITED STATES, 328 U.S. 750.  PP. 217-220. 

2.  THE FACT THAT HIS SENTENCE OF IMPRISONMENT HAS BEEN SERVED DOES
NOT RENDER MOOT A REVIEW OF THE CONVICTION OF AN ALIEN UNDER SEC. 37 OF
THE CRIMINAL CODE FOR CONSPIRING TO FILE A FALSE REGISTRATION STATEMENT
UNDER THE ALIEN REGISTRATION ACT AND TO CONCEAL FROM THE GOVERNMENT HIS
MEMBERSHIP IN THE NAZI PARTY, SINCE THE CONVICTION MAY WEAKEN HIS
DEFENSE TO A DEPORTATION PROCEEDING UNDER 8 U.S.C. SEC. 155, IMPAIR HIS
CHANCES OF NATURALIZATION UNDER 8 U.S.C. SEC. 707(A)(3), AND SUBJECT
HIM TO THE LOSS OF CERTAIN CIVIL RIGHTS.  PP. 220-223. 

FISWICK ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

PETITIONERS WERE CONVICTED UNDER SEC. 37 OF THE CRIMINAL CODE OF
CONSPIRING TO DEFRAUD THE UNITED STATES IN THE EXERCISE OF ITS
GOVERNMENTAL FUNCTIONS BY FILING FALSE REGISTRATION STATEMENTS UNDER
THE ALIEN REGISTRATION ACT OF 1940, 54 STAT. 670, 8 U.S.C. SEC. 451 ET
SEQ., AND CONCEALING THEIR MEMBERSHIP IN THE NAZI PARTY.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  153 F.2D 176.  THIS COURT GRANTED
CERTIORARI.  327 U.S. 776.  REVERSED, P. 223. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE ALIEN REGISTRATION ACT OF 1940, 54 STAT. 670, 8 U.S.C. SEC. 451
ET SEQ., REQUIRED ALIENS, WITH CERTAIN EXCEPTIONS, TO REGISTER PURSUANT
TO REGULATIONS OF THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION. 
FN1  AMONG THE DISCLOSURES REQUIRED WAS WHETHER DURING THE PRECEDING
FIVE YEARS THE ALIEN HAD BEEN "AFFILIATED WITH OR ACTIVE IN (A MEMBER
OF, OFFICIAL OF, A WORKER FOR) ORGANIZATIONS, DEVOTED IN WHOLE OR IN
PART TO INFLUENCING OR FURTHERING THE POLITICAL ACTIVITIES, PUBLIC
RELATIONS, OR PUBLIC POLICY OF A FOREIGN GOVERNMENT."  FN2 

PETITIONERS ARE GERMAN NATIONALS WHO REGISTERED UNDER THE ACT, THE
LAST OF THE THREE, MAYER, REGISTERING ON DECEMBER 23, 1940.  EACH
STATED WHEN HE REGISTERED THAT HE WAS NOT AFFILIATED WITH OR ACTIVE IN
SUCH AN ORGANIZATION.  EACH FAILED TO DISCLOSE, IN ANSWER TO ANOTHER
QUESTION PERTAINING TO "MEMBERSHIPS OR ACTIVITIES IN CLUBS,
ORGANIZATIONS, OR SOCIETIES," THAT HE WAS IN ANY WAY CONNECTED WITH THE
NAZI PARTY.  THEY WERE INDICTED IN 1944 WITH 28 OTHERS FOR CONSPIRING
TO DEFRAUD THE UNITED STATES IN THE EXERCISE OF ITS GOVERNMENTAL
FUNCTIONS (SEE CURLEY V. UNITED STATES, 130 F. 1, 4) IN VIOLATION OF
SEC. 37 OF THE CRIMINAL CODE, 18 U.S.C. SEC. 88. 

THE INDICTMENT CHARGES THAT PETITIONERS CONTINUOUSLY BETWEEN
SEPTEMBER 1, 1939, AND THE DATE THE INDICTMENT WAS RETURNED, SEPTEMBER
13, 1944, CONSPIRED WITH EACH OTHER AND WITH DRAEGER, THE GERMAN CONSUL
IN NEW YORK CITY AND LEADER OF THE NAZI PARTY IN THIS COUNTRY, WITH
DRAEGER'S SECRETARY, VOGEL, AND WITH OTHER REPRESENTATIVES OF THE THIRD
REICH, TO DEFRAUD THE UNITED STATES BY CONCEALING AND MISREPRESENTING
THEIR MEMBERSHIP IN THE NAZI PARTY.  IT CHARGES THAT SINCE 1933 THE
NAZI PARTY WAS DEVOTED TO FURTHERING THE POLITICAL ACTIVITIES AND
POLICY OF THE GERMAN REICH IN THIS COUNTRY, THAT EACH PETITIONER DURING
THE FIVE YEARS PRIOR TO HIS REGISTRATION WAS A MEMBER OF THAT PARTY,
THAT DRAEGER AND VOGEL DIRECTED PETITIONERS IN REGISTERING UNDER THE
ACT TO CONCEAL AND FALSIFY THEIR CONNECTION WITH THE NAZI PARTY, THAT
PETITIONERS FOLLOWED SUCH DIRECTIONS, THAT AFTER THEIR REGISTRATION
THEY CONTINUED FROM DAY TO DAY TO MISREPRESENT TO THE GOVERNMENT THEIR
CONNECTION WITH AND ACTIVITIES IN THE NAZI PARTY.  THE INDICTMENT
ALLEGES THAT, AS A MEANS OF ACCOMPLISHING THE CONSPIRACY, THE
PETITIONERS APPEARED FOR REGISTRATION AND IN REGISTERING FALSELY FAILED
TO DISCLOSE THEIR CONNECTION WITH AND ACTIVITIES IN THE NAZI PARTY. 
THE INDICTMENT SETS FORTH FORTY OVERT ACTS.  MANY RELATED TO
INSTRUCTIONS GIVEN BY DRAEGER AND VOGEL TO VARIOUS DEFENDANTS FROM
SEPTEMBER TO DECEMBER 1940, IN CONNECTION WITH THEIR REGISTRATION. 
OTHERS RELATED TO THE REGISTERING BY PETITIONERS IN NOVEMBER AND
DECEMBER, 1940.  THE LAST OVERT ACT ALLEGED TO HAVE BEEN COMMITTED BY
ANY OF PETITIONERS WAS THE FILING BY MAYER OF HIS REGISTRATION
STATEMENT ON DECEMBER 23, 1940. 

OF THE 31 INDICTED, ONLY THE THREE PETITIONERS WERE CONVICTED AFTER A
JURY TRIAL.  FN3  FISWICK AND RUDOLPH WERE SENTENCED TO IMPRISONMENT
FOR EIGHTEEN MONTHS EACH.  MAYER WAS SENTENCED TO IMPRISONMENT FOR A
YEAR AND A DAY.  THE JUDGMENTS OF CONVICTION WERE AFFIRMED BY THE
CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING.  153 F.2D 176.  THE
CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED
BECAUSE THE RULINGS OF THE LOWER COURTS ON THE CONTINUING NATURE OF THE
CONSPIRACY WERE APPARENTLY IN CONFLICT WITH DECISIONS OF THIS COURT. 
SEE UNITED STATES V. IRVINE, 98 U.S. 450; UNITED STATES V. KISSEL, 218
U.S. 601. 

FIRST.  THE NATURE AND DURATION OF THE CONSPIRACY ASSUMED GREAT
IMPORTANCE AT THE TRIAL FOR THE FOLLOWING REASON.  EACH PETITIONER
AFTER HE WAS APPREHENDED MADE DAMAGING STATEMENTS TO AGENTS OF THE
FEDERAL BUREAU OF INVESTIGATION.  MAYER, IN NOVEMBER, 1943, STATED THAT
HE HAD APPLIED FOR MEMBERSHIP IN THE NAZI PARTY AND HAD NOT DISCLOSED
THE FACT BECAUSE VOGEL TOLD HIM NOT TO. FISWICK'S STATEMENT MADE IN
APRIL, 1944, WAS TO THE SAME EFFECT.  RUDOLPH MADE SUBSTANTIALLY THE
SAME ADMISSIONS IN NOVEMBER, 1943, AND THEN IN SEPTEMBER, 1944,
RETRACTED THEM INSOFAR AS HE HAD SAID THAT IN REGISTERING UNDER THE ACT
AND IN FAILING TO DISCLOSE HIS NAZI PARTY AFFILIATION HE HAD FOLLOWED
INSTRUCTIONS.  HIS LATER REASON FOR NON-DISCLOSURE WAS HIS ASSERTED
DESIRE TO PROTECT HIS FAMILY.  EACH OF THESE STATEMENTS WAS ADMITTED AT
THE TRIAL.  AT FIRST, EACH WAS ADMITTED ONLY AS AGAINST THE MAKER.  AT
THE CLOSE OF THE GOVERNMENT'S CASE, HOWEVER, THE DISTRICT COURT RULED
THAT EACH OF THESE STATEMENTS WAS ADMISSIBLE AGAINST EACH OF THE OTHER
CO-CONSPIRATORS.  IT SO CHARGED THE JURY.  LATER THE JURY RETURNED TO
THE COURTROOM FOR FURTHER INSTRUCTIONS.  ONE OF THE QUESTIONS ON WHICH
THE FOREMAN STATED THAT THEY DESIRED INSTRUCTION RELATED TO THAT PART
OF THE CHARGE "WHERE YOU SAID SOMETHING ABOUT ALL OF THE DEFENDANTS
WERE BOUND BY THE ACT OF ONE OR SOMETHING, SOMETHING AS A GROUP, AND
THE OTHER SAID THE INDIVIDUALS."  THE JUDGE THEN REPEATED THAT THE
ADMISSIONS OF EACH WERE ADMISSIBLE AGAINST ALL PROVIDED THERE WAS A
CONSPIRACY AND THEY WERE ALL IN IT. 

THE SOLICITOR GENERAL NOW RIGHTLY CONCEDES THAT THAT RULING WAS
ERRONEOUS.  THOUGH THE RESULT OF A CONSPIRACY MAY BE CONTINUING, THE
CONSPIRACY DOES NOT THEREBY BECOME A CONTINUING ONE.  SEE UNITED STATES
V. IRVINE, SUPRA.  CONTINUITY OF ACTION TO PRODUCE THE UNLAWFUL RESULT,
OR AS STATED IN UNITED STATES V. KISSEL, SUPRA, P. 607, "CONTINUOUS
COOPERATION OF THE CONSPIRATORS TO KEEP IT UP," IS NECESSARY.  A
CONSPIRACY IS A PARTNERSHIP IN CRIME.  UNITED STATES V. SOCONY-VACUUM
OIL CO., 310 U.S. 150, 253.  UNDER SEC. 37 OF THE CRIMINAL CODE, THE
BASIS OF THE PRESENT INDICTMENT, AN OVERT ACT IS NECESSARY TO COMPLETE
THE OFFENSE.  FN4  THE STATUTE OF LIMITATIONS, UNLESS SUSPENDED N5,
RUNS FROM THE LAST OVERT ACT DURING THE EXISTENCE OF THE CONSPIRACY. 
BROWN V. ELLIOTT, 225 U.S. 392, 401.  THE OVERT ACTS AVERRED AND PROVED
MAY THUS MARK THE DURATION, AS WELL AS THE SCOPE, OF THE CONSPIRACY. 

IN THIS CASE THE LAST OVERT ACT, AS WE HAVE NOTED, WAS THE FILING BY
MAYER OF HIS REGISTRATION STATEMENT ON DECEMBER 23, 1940.  THAT ACT WAS
ADEQUATE AS AN OVERT ACT IN FURTHERANCE OF A CONSPIRACY TO MAKE A FALSE
RETURN.  BUT THERE IS DIFFICULTY IN ALSO MAKING IT SERVE THE FUNCTION
OF AN OVERT ACT IN FURTHERANCE OF A CONSPIRACY TO CONCEAL FROM 1940 TO
1944 THE FACT THAT FALSE RETURNS HAD BEEN MADE.  ALL CONTINUITY OF
ACTION ENDED WITH THE LAST OVERT ACT IN DECEMBER, 1940.  THERE WAS NO
OVERT ACT OF CONCEALMENT WHICH FOLLOWED THE ACT OF MAKING FALSE
STATEMENTS.  IF THE LATTER IS PERMITTED TO DO DOUBLE DUTY, THEN A
CONTINUING RESULT BECOMES A CONTINUING CONSPIRACY.  IF, AS WE THINK,
THE CONSPIRACY CHARGED AND PROVED DID NOT EXTEND BEYOND THE DATE OF THE
LAST OVERT ACT, THE ADMISSIONS OF EACH PETITIONER WERE IMPROPERLY
EMPLOYED AGAINST THE OTHERS.  WHILE THE ACT OF ONE PARTNER IN CRIME IS
ADMISSIBLE AGAINST THE OTHERS WHERE IT IS IN FURTHERANCE OF THE
CRIMINAL UNDERTAKING, PINKERTON V. UNITED STATES, 328 U.S. 640, 646
647, AND CASES CITED, ALL SUCH RESPONSIBILITY IS AT AN END WHEN THE
CONSPIRACY ENDS.  LOGAN V. UNITED STATES, 144 U.S. 263, 309; BROWN V.
UNITED STATES, 150 U.S. 93, 98.  MOREOVER, CONFESSION OR ADMISSION BY
ONE CO-CONSPIRATOR AFTER HE HAS BEEN APPREHENDED IS NOT IN ANY SENSE A
FURTHERANCE OF THE CRIMINAL ENTERPRISE.  IT IS RATHER A FRUSTRATION OF
IT.  IF, AS THE CIRCUIT COURT OF APPEALS THOUGHT, THE MAINTENANCE OF
THE PLOT TO DECEIVE THE GOVERNMENT WAS THE OBJECTIVE OF THIS
CONSPIRACY, THE ADMISSIONS MADE TO THE OFFICERS ENDED IT.  SO FAR AS
EACH CONSPIRATOR WHO CONFESSED WAS CONCERNED, THE PLOT WAS THEN
TERMINATED.  HE THEREUPON CEASED TO ACT IN THE ROLE OF A CONSPIRATOR. 
HIS ADMISSIONS WERE THEREFORE NOT ADMISSIBLE AGAINST HIS ERSTWHILE
FELLOW-CONSPIRATORS.  GAMBINO V. UNITED STATES, 108 F.2D 140, 142-143. 

IT IS EARNESTLY ARGUED, HOWEVER, THAT THE ERROR WAS HARMLESS.  THE
"HARMLESS ERROR" STATUTE (JUDICIAL CODE SEC. 269, 28 U.S.C. SEC. 391)
PROVIDES THAT "ON THE HEARING OF ANY APPEAL, CERTIORARI, OR MOTION FOR
A NEW TRIAL, IN ANY CASE, CIVIL OR CRIMINAL, THE COURT SHALL GIVE
JUDGMENT AFTER AN EXAMINATION OF THE ENTIRE RECORD BEFORE THE COURT,
WITHOUT REGARD TO TECHNICAL ERRORS, DEFECTS, OR EXCEPTIONS WHICH DO NOT
AFFECT THE SUBSTANTIAL RIGHTS OF THE PARTIES."  WE HAVE RECENTLY
REVIEWED THE HISTORY OF THIS STATUTE AND THE FUNCTION IT WAS DESIGNED
TO SERVE IN CRIMINAL CASES.  KOTTEAKOS V. UNITED STATES, 328 U.S. 750. 
THE COURT THERE STATED, PP. 764-765: 

"IF, WHEN ALL IS SAID AND DONE, THE CONVICTION IS SURE THAT THE ERROR
DID NOT INFLUENCE THE JURY, OR HAD BUT VERY SLIGHT EFFECT, THE VERDICT
AND THE JUDGMENT SHOULD STAND, EXCEPT PERHAPS WHERE THE DEPARTURE IS
FROM A CONSTITUTIONAL NORM OR A SPECIFIC COMMAND OF CONGRESS....  BUT
IF ONE CANNOT SAY, WITH FAIR ASSURANCE, AFTER PONDERING ALL THAT
HAPPENED WITHOUT STRIPPING THE ERRONEOUS ACTION FROM THE WHOLE, THAT
THE JUDGMENT WAS NOT SUBSTANTIALLY SWAYED BY THE ERROR, IT IS
IMPOSSIBLE TO CONCLUDE THAT SUBSTANTIAL RIGHTS WERE NOT AFFECTED.  THE
INQUIRY CANNOT BE MERELY WHETHER THERE WAS ENOUGH TO SUPPORT THE
RESULT, APART FROM THE PHASE AFFECTED BY THE ERROR.  IT IS RATHER, EVEN
SO, WHETHER THE ERROR ITSELF HAD SUBSTANTIAL INFLUENCE.  IF SO, OR IF
ONE IS LEFT IN GRAVE DOUBT, THE CONVICTION CANNOT STAND." 

WE CANNOT SAY WITH FAIR ASSURANCE IN THIS CASE THAT THE JURY WAS NOT
SUBSTANTIALLY SWAYED BY THE USE OF THESE ADMISSIONS AGAINST ALL
PETITIONERS.  IT IS NOT ENOUGH TO SAY THAT THERE MAY BE A STRONG CASE
MADE OUT AGAINST EACH PETITIONER.  THE INDICTMENT CHARGES A CONSPIRACY,
NOT THE SUBSTANTIVE CRIME OF FALSELY REGISTERING.  THE EVIDENCE THAT
PETITIONERS CONSPIRED WITH EACH OTHER AND WITH DRAEGER, VOGEL, AND
OTHERS, IS NOT STRONG.  THOUGH WE ASSUME THERE WAS ENOUGH EVIDENCE TO
GO TO THE JURY ON THE EXISTENCE OF THAT CONSPIRACY, THE CASE WAS ONE
WHICH A PROSECUTOR WOULD BE ANXIOUS TO BOLSTER. 

THE PROSECUTOR'S CASE, APART FROM THE ADMISSIONS, MAY BE BRIEFLY
SUMMARIZED.  DRAEGER AND VOGEL WERE ACTIVE IN THE AFFAIRS OF THE NAZI
PARTY IN THIS COUNTRY.  THEIR STENOGRAPHER, A GOVERNMENT WITNESS,
TESTIFIED THAT APPLICATIONS FOR MEMBERSHIP IN THE PARTY WERE RECEIVED
AT THEIR OFFICE.  DUES WERE PAID THERE.  A CARD FILE OF MEMBERS OF THE
PARTY AND OF APPLICANTS FOR MEMBERSHIP WAS KEPT THERE.  THE NAME OF
EACH PETITIONER WAS ON THE LIST.  A LETTER WAS SENT TO ALL ON THE LIST
IN AUGUST OR SEPTEMBER, 1940, OVER DRAEGER'S SIGNATURE, REQUESTING THEM
TO DISCUSS A MATTER WITH DRAEGER.  THOSE WHO APPEARED IN RESPONSE TO
THE LETTER WERE TOLD TO CONCEAL THEIR NAZI PARTY MEMBERSHIP OR
AFFILIATION WHEN THEY REGISTERED UNDER THE ACT.  ANOTHER WITNESS FOR
THE GOVERNMENT - A DEFENDANT IN THE CASE WHO WAS GRANTED A SEVERANCE -
ALSO TESTIFIED THAT VOGEL GAVE INSTRUCTIONS TO PARTY MEMBERS NOT TO
DISCLOSE THEIR AFFILIATION WITH THE NAZI PARTY.  AND A CLERK IN
DRAEGER'S OFFICE TESTIFIED FOR THE GOVERNMENT THAT THE PARTY MEMBERS
WHO CAME TO THE CONSULATE WERE TOLD TO SAY IN THEIR REGISTRATION
STATEMENTS THAT THEY WERE MEMBERS OF AN INNOCUOUSSOUNDING ASSOCIATION
OF GERMAN NATIONALS.  THERE WAS NO EVIDENCE THAT PETITIONERS CAME TO
THE CONSULATE SEEKING ADVICE.  THERE WAS NO DIRECT EVIDENCE THAT
PETITIONERS HAD RECEIVED THE INSTRUCTIONS FROM THE CONSULATE TO CONCEAL
THEIR PARTY MEMBERSHIP.  THERE WAS NO DIRECT EVIDENCE THAT PETITIONERS
CAME TO THE CONSULATE IN RESPONSE TO THE LETTER WHICH WAS SENT.  THEY
WERE NOT IDENTIFIED AS BEING WITH ANY GROUP WHICH CALLED THERE.  THERE
WAS NO EVIDENCE THAT THEY CONFERRED WITH DRAEGER OR VOGEL OR WITH EACH
OTHER. 

THE SOLICITOR GENERAL STATES WITH COMMENDABLE CANDOR THAT IN THIS
STATE OF THE PROOF IT WAS MANIFESTLY IMPORTANT FOR THE PROSECUTOR "TO
BRING INTO THE CASE AGAINST PETITIONERS EVIDENCE OF A CHARACTER THAT
MIGHT BETTER CONVINCE THE JURY THAT WHEN EACH FAILED TO REVEAL HIS
PARTY CONNECTION IN REGISTERING HE HAD DONE SO UPON PARTY INSTRUCTIONS,
AND, HENCE, THAT HE WAS A MEMBER OF THE CONSPIRACY."  THE ADMISSIONS
SERVED THAT PURPOSE.  THEY SUPPLIED THE FIRST DIRECT EVIDENCE THAT
PETITIONERS ACTED PURSUANT TO THE INSTRUCTIONS OF THE CONSULATE.  IT IS
TRUE, AS RESPONDENT EMPHASIZES, THAT NONE OF THESE ADMISSIONS
IMPLICATES ANY PETITIONER EXCEPT THE MAKER.  BUT SINCE, IF THERE WAS A
CONSPIRACY, DRAEGER AND VOGEL WERE ITS HUB, EVIDENCE WHICH BROUGHT EACH
PETITIONER INTO THE CIRCLE WAS THE ONLY EVIDENCE WHICH CEMENTED THEM
TOGETHER IN THE ILLEGAL PROJECT.  AND WHEN THE JURY WAS TOLD THAT THE
ADMISSIONS OF ONE, THOUGH NOT IMPLICATING THE OTHERS, MIGHT BE USED
AGAINST ALL, THE ELEMENT OF CONCERT OF ACTION WAS STRONGLY BOLSTERED,
IF NOT ADDED.  WITHOUT THE ADMISSIONS, THE JURY MIGHT WELL HAVE
CONCLUDED THAT THERE WERE THREE SEPARATE CONSPIRACIES, NOT ONE.  CF.
KOTTEAKOS V. UNITED STATES, SUPRA.  WITH THE ADMISSIONS, THE CHARGE OF
CONSPIRACY RECEIVED POWERFUL REINFORCEMENT.  AND THE CHARGE THAT EACH
PETITIONER CONSPIRED WITH THE OTHERS BECAME APPRECIABLY STRONGER, NOT
FROM WHAT HE SAID BUT FROM WHAT THE OTHER TWO SAID.  WE THEREFORE
CANNOT SAY WITH ANY CONFIDENCE THAT THE ERROR IN ADMITTING EACH OF
THESE STATEMENTS AGAINST THE OTHER PETITIONERS DID NOT INFLUENCE THE
JURY OR HAD ONLY A SLIGHT EFFECT.  INDEED, THE ADMISSIONS MAY WELL HAVE
BEEN CRUCIAL.  THE ADMISSIONS APPARENTLY BECAME OF CONSIDERABLE
IMPORTANCE IN THE DELIBERATIONS OF THE JURY, FOR, AS WE HAVE NOTED,
THEY ASKED FOR CLARIFICATION OF THE INSTRUCTIONS ON THAT POINT.  AND
THE ADMISSIONS SO STRONGLY BOLSTERED A WEAK CASE THAT IT IS IMPOSSIBLE
FOR US TO CONCLUDE THE ERROR CAN BE DISREGARDED UNDER THE "HARMLESS
ERROR" STATUTE.  THE USE MADE OF THE ADMISSIONS AT THE TRIAL
CONSTITUTED REVERSIBLE ERROR. 

SECOND.  A FURTHER QUESTION REMAINS.  AS WE HAVE NOTED, FISWICK WAS
SENTENCED TO IMPRISONMENT FOR 18 MONTHS.  NO FINE WAS IMPOSED.  IT NOW
APPEARS THAT HE HAS SERVED HIS SENTENCE.  ACCORDINGLY, IT IS SUGGESTED
THAT THE CAUSE IS MOOT AND THAT THE WRIT OF CERTIORARI SHOULD BE
DISMISSED AS TO HIM.  WE FOLLOWED THAT PROCEDURE IN ST. PIERRE V.
UNITED STATES, 319 U.S. 41, 42, SAYING THAT SINCE THE SENTENCE HAD BEEN
SERVED, "THERE WAS NO LONGER A SUBJECT MATTER ON WHICH THE JUDGMENT OF
THIS COURT COULD OPERATE."  WE ADDED, HOWEVER, THAT THE PETITIONER HAD
NOT SHOWN THAT "UNDER EITHER STATE OR FEDERAL LAW FURTHER PENALTIES OR
DISABILITIES CAN BE IMPOSED ON HIM AS A RESULT OF THE JUDGMENT WHICH
HAS NOW BEEN SATISFIED."  P. 43. 

THE SITUATION HERE IS DIFFERENT.  FISWICK IS AN ALIEN.  AN ALIEN
SENTENCED TO IMPRISONMENT FOR ONE YEAR OR MORE "BECAUSE OF CONVICTION
IN THIS COUNTRY OF A CRIME INVOLVING MORAL TURPITUDE" IS, UNLESS
PARDONED, SUBJECT TO DEPORTATION IF THE CRIME WAS COMMITTED WITHIN FIVE
YEARS AFTER THE ALIEN'S ENTRY INTO THE UNITED STATES.  39 STAT. 874,
889, 8 U.S.C. SEC. 155.  THE CONSPIRACY WITH WHICH FISWICK IS CHARGED
WAS FORMED AND EXECUTED WITHIN THAT FIVE-YEAR PERIOD, AS HIS LAST ENTRY
WAS IN 1937.  THE CONSPIRACY OF WHICH HE WAS CONVICTED WAS ONE TO
IMPEDE THE GOVERNMENT IN ONE OF ITS LAWFUL FUNCTIONS, TO PREVENT IT
FROM OBTAINING INFORMATION WHICH THE EXECUTIVE AND CONGRESS DEEMED
VITAL TO OUR INTERNAL SECURITY, TO CONCEAL BY FRAUD, DECEIT, AND
PERJURY  FN6  THE RAMIFICATIONS OF AN ORGANIZATION IN OUR MIDST BENT ON
OUR UNDOING.  WE NEED NOT DETERMINE IN THIS COLLATERAL WAY WHETHER
CONVICTION FOR SUCH A CRIME WOULD INVOLVE "MORAL TURPITUDE" WITHIN THE
MEANING OF THE DEPORTATION LAWS.  FN7  BUT THE JUDGMENT, IF
UNDISTURBED, STANDS AS UNIMPEACHABLE EVIDENCE THAT FISWICK COMMITTED
THE CRIME CHARGED.  THE HAZARDS OF DEPORTATION BECAUSE OF THAT FACT ARE
REAL.  FN8  TO LEAVE HIM TO DEFEND A DEPORTATION ORDER ON THE GROUND
THAT THE CRIME OF WHICH HE WAS CONVICTED DID NOT INVOLVE "MORAL
TURPITUDE" IS TO ADD TO HIS BURDENS BY DEPRIVING HIM OF HIS BEST
DEFENSE - THAT HE WAS NOT PROPERLY CONVICTED. 

MOREOVER, OTHER DISABILITIES OR BURDENS MAY FLOW FROM THE JUDGMENT,
IMPROPERLY OBTAINED, IF WE DISMISS THIS CASE AS MOOT AND LET THE
CONVICTION STAND.  IF FISWICK SEEKS NATURALIZATION, HE MUST ESTABLISH
THAT DURING THE FIVE YEARS IMMEDIATELY PRECEDING THE DATE OF FILING HIS
PETITION FOR NATURALIZATION HE "HAS BEEN AND STILL IS A PERSON OF GOOD
MORAL CHARACTER."  54 STAT. 1137, 1142, 8 U.S.C. SEC. 707(A)(3).  AN
OUTSTANDING JUDGMENT OF CONVICTION FOR THIS CRIME STANDS AS OMINOUS
PROOF THAT HE DID WHAT WAS CHARGED AND PUTS BEYOND HIS REACH ANY
SHOWING OF AMELIORATING CIRCUMSTANCES OR EXPLANATORY MATTER THAT MIGHT
REMOVE PART OR ALL OF THE CURSE.  AND, EVEN THOUGH HE SUCCEEDED IN
BEING NATURALIZED, HE WOULD, UNLESS PARDONED, CARRY THROUGH LIFE THE
DISABILITY OF A FELON; FN9  AND BY REASON OF THAT FACT HE MIGHT LOSE
CERTAIN CIVIL RIGHTS.  FN10  THUS FISWICK HAS A SUBSTANTIAL STAKE IN
THE JUDGMENT OF CONVICTION WHICH SURVIVES THE SATISFACTION OF THE
SENTENCE IMPOSED ON HIM.  IN NO PRACTICAL SENSE, THEREFORE, CAN
FISWICK'S CASE BE SAID TO BE MOOT. 

IT IS SAID, HOWEVER, THAT, HAVING SERVED HIS SENTENCE, FISWICK MAY
NOT BE RESENTENCED ON A NEW TRIAL AND THAT, IF HIS CONVICTION IS
REVERSED, HE THEREBY ESCAPES DEPORTATION.  THE ARGUMENT IS THAT HE
THWARTS THE DEPORTATION POLICY BY ELECTING TO SERVE HIS SENTENCE.  WE
CANNOT ASSUME, HOWEVER, THAT FISWICK IS GUILTY OF THE CONSPIRACY
CHARGED.  HE WAS NOT ACCORDED THE TRIAL TO WHICH HE IS ENTITLED UNDER
OUR SYSTEM OF GOVERNMENT.  THE CONVICTION WHICH HE SUFFERED WAS NOT IN
ACCORDANCE WITH LAW.  THE ERRORS IN THE TRIAL IMPEACH THE CONVICTION;
AND HE MUST STAND IN THE POSITION OF ANY MAN WHO HAS BEEN ACCUSED OF A
CRIME BUT NOT YET SHOWN TO HAVE COMMITTED IT.  TO DISMISS HIS CASE AS
MOOT WOULD PERMIT THE GOVERNMENT TO COMPOUND ITS ERROR AT FISWICK'S
EXPENSE.  THAT COURSE DOES NOT COMPORT WITH OUR STANDARDS OF LAW
ENFORCEMENT.  REVERSED. 

FN1  SEE 5 FED. REG. 2836 FOR THE REGULATIONS. 

FN2  REGULATIONS, SUPRA, NOTE 1, SEC. 29.4(1)(15). 

FN3  SIX ENTERED PLEAS OF GUILTY.  THERE WAS A DISMISSAL AS TO ONE, A
SEVERANCE AS TO FOURTEEN.  TEN WERE TRIED.  THE JURY ACQUITTED THREE
AND DISAGREED AS TO THE OTHER FOUR. 

FN4  AT COMMON LAW IT WAS NOT NECESSARY TO AVER OR PROVE AN OVERT
ACT.  SEE HYDE V. UNITED STATES, 225 U.S. 347, 359.  THE SAME IS TRUE
UNDER THE SHERMAN ACT.  NASH V. UNITED STATES, 229 U.S. 373, 378;
UNITED STATES V. SOCONY-VACUUM OIL CO., SUPRA, P. 252.  BUT SEC. 37 OF
THE CRIMINAL CODE REQUIRES NOT ONLY AN AGREEMENT TO DO THE UNLAWFUL ACT
BUT ALSO THE DOING OF "ANY ACT TO EFFECT THE OBJECT OF THE
CONSPIRACY."  SEE HYDE V. UNITED STATES, SUPRA, P. 359. 

FN5  SEE, FOR EXAMPLE, SEC. 1 OF THE ACT OF AUGUST 24, 1942, 56 STAT.
747, 18 U.S.C. SUPP. II, SEC. 590A, AS AMENDED BY SEC. 19(B) OF THE ACT
OF JULY 1, 1944, 58 STAT. 649, 667, 18 U.S.C. SUPP. IV, SEC. 590A. 

FN6  THE REGISTRATION STATEMENTS REQUIRED BY THE ACT WERE SWORN
STATEMENTS.  REGULATIONS, SUPRA NOTE 1, SEC. 29.4(G), (J). 

FN7  CONVICTIONS FOR PERJURY, KANEDA V. UNITED STATES, 278 F. 694,
FOR FRAUDS ON THE REVENUES, GUARNERI V. KESSLER, 98 F.2D 580, UNITED
STATES V. REIMER, 113 F.2D 429, FOR FRAUDS WITH RESPECT TO PROPERTY,
UNITED STATES V. BURMASTER, 24 F.2D 57, HAVE BEEN HELD BY THE LOWER
COURTS TO MEET THAT TEST.  AND COUNTERFEITING WAS SO CLASSIFIED BY THE
COURT IN UNITED STATES V. SMITH, 289 U.S. 422.  AS TO DEPORTATION FOR
VIOLATIONS OF THE ALIEN REGISTRATION ACT OF 1940 SEE SEC. 20(B)(4) AND
(5).  SEE ALSO ALIEN ENEMY ACT OF 1798, REV. STAT. 4067-4070, AS
AMENDED 40 STAT. 531, 50 U.S.C. SECS. 21-24; PRESIDENTIAL PROCLAMATION
NO. 2655, 10 FED. REG. 8947. 

FN8  ALTHOUGH DEPORTATION IS NOT TECHNICALLY A CRIMINAL PUNISHMENT,
IT MAY VISIT GREAT HARDSHIP ON THE ALIEN.  BRIDGES V. WIXON, 326 U.S.
135, 147.  AS STATED BY THE COURT, SPEAKING THROUGH MR. JUSTICE
BRANDEIS, IN NG FUNG HO V. WHITE, 259 U.S. 276, 284, DEPORTATION MAY
RESULT IN THE LOSS "OF ALL THAT MAKES LIFE WORTH LIVING." 

FN9  "ALL OFFENSES WHICH MAY BE PUNISHED BY DEATH OR IMPRISONMENT FOR
A TERM EXCEEDING ONE YEAR SHALL BE DEEMED FELONIES."  CRIMINAL CODE
SEC. 335, 18 U.S.C. SEC. 541. 

FN10  THUS MO. REV. STATS. ANN. SEC. 4561 RENDERS SUCH PERSON
INCOMPETENT TO SERVE ON A JURY AND FOREVER DISQUALIFIES HIM FROM VOTING
OR HOLDING OFFICE, UNLESS PARDONED. 
..END :



COMMUNICATIONS COMM'N V. WOKO, 329 U.S. 223 


NO. 65.  ARGUED NOVEMBER 22, 1946.  - DECIDED DECEMBER 9, 1946.  - 153
F.2D 623, REVERSED. 


A CORPORATION, WHICH HAD OPERATED A RADIO STATION FOR SOME YEARS AND
APPEARED TO HAVE RENDERED PUBLIC SERVICE OF ACCEPTABLE QUALITY AND TO
BE ABLE TO CONTINUE, WAS DENIED A RENEWAL OF ITS LICENSE BY THE FEDERAL
COMMUNICATIONS COMMISSION ON THE GROUND THAT IT COULD NOT BE ENTRUSTED
WITH THE RESPONSIBILITIES OF A LICENSEE, BECAUSE THE COMMISSION FOUND
THAT IT HAD MISREPRESENTED THE TRUE OWNERSHIP OF ITS CAPITAL STOCK IN
APPLICATIONS AND TESTIMONY BEFORE THE COMMISSION OVER A PERIOD OF
YEARS.  HELD: 

1.  THE DENIAL OF THE LICENSE WAS NOT UNLAWFUL, ARBITRARY OR
CAPRICIOUS WITHIN THE MEANING OF 47 U.S.C. SEC. 402(E), PROVIDING FOR
JUDICIAL REVIEW, EVEN THOUGH THE COMMISSION FAILED TO FIND THAT THE
CONCEALMENT WAS OF MATERIAL FACTS OR HAD INFLUENCED THE COMMISSION IN
MAKING ANY DECISION OR THAT IT WOULD HAVE ACTED DIFFERENTLY HAD IT
KNOWN THE TRUE FACTS.  PP. 226, 227. 

2.  THE FACT THAT STOCKHOLDERS OWNING SLIGHTLY MORE THAN 50% OF ITS
STOCK WERE NOT FOUND TO HAVE HAD ANY PART IN OR KNOWLEDGE OF THE
DECEPTION CANNOT IMMUNIZE THE CORPORATION FROM THE CONSEQUENCES OF THE
DECEPTION, THOUGH IT MAY BE A PROPER CONSIDERATION FOR THE COMMISSION
IN DETERMINING JUST AND APPROPRIATE ACTION.  P. 227. 

3.  THAT ITS ACTION IN THIS CASE CONSTITUTES A DEPARTURE FROM THE
COURSE WHICH THE COMMISSION HAS TAKEN IN DEALING WITH MISSTATEMENTS AND
APPLICATIONS IN OTHER CASES IS A CONSIDERATION APPROPRIATE FOR THE
COMMISSION IN DETERMINING WHETHER ITS ACTION IN THIS CASE IS TOO
DRASTIC; BUT THE COMMISSION IS NOT BOUND TO DEAL WITH ALL CASES AT ALL
TIMES AS IT HAS DEALT WITH SOME THAT SEEM COMPARABLE.  PP. 227-228. 

4.  A DENIAL OF A LICENSE BECAUSE OF THE INSUFFICIENCY OR DELIBERATE
FALSITY OF THE INFORMATION LAWFULLY REQUIRED TO BE FURNISHED IS NOT A
PENALTY AND IS NOT ILLEGAL, ARBITRARY OR CAPRICIOUS WITHIN THE MEANING
OF 47 U.S.C. SEC. 402(E).  P. 228. 

5.  THE FACT THAT THE COMMISSION FAILED TO MAKE FINDINGS AS TO THE
QUALITY OF THE STATION'S SERVICE IN THE PAST AND ITS EQUIPMENT FOR GOOD
SERVICE IN THE FUTURE DID NOT MAKE ITS ACTION ARBITRARY OR CAPRICIOUS
IN THE CIRCUMSTANCES OF THIS CASE.  PP. 228-229. 

6.  THE COMMISSION IS NOT REQUIRED TO GRANT A LICENSE ON A
DELIBERATELY FALSE APPLICATION.  P. 229. 

7.  IT IS THE COMMISSION, NOT THE COURTS, WHICH MUST BE SATISFIED
THAT THE PUBLIC INTEREST WILL BE SERVED BY RENEWING A LICENSE.  P.
229. 

FEDERAL COMMUNICATIONS COMMISSION V. WOKO, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

THE FEDERAL COMMUNICATIONS COMMISSION REFUSED TO RENEW THE LICENSE OF
A RADIO STATION BECAUSE OF WILFUL MISREPRESENTATIONS TO THE COMMISSION
AS TO THE OWNERSHIP OF ITS STOCK.  THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA REVERSED.  153 F.2D 623.  THIS COURT
GRANTED CERTIORARI.  327 U.S. 776.  REVERSED AND REMANDED TO THE COURT
OF APPEALS WITH DIRECTION TO REMAND TO THE COMMISSION.  P. 229. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

WOKO, INCORPORATED, FOR SOME YEARS HAS OPERATED A RADIO STATION AT
ALBANY, NEW YORK, AND APPEARS TO HAVE RENDERED PUBLIC SERVICE OF
ACCEPTABLE QUALITY AND TO BE ABLE TO CONTINUE.  THE FEDERAL
COMMUNICATIONS COMMISSION REFUSED TO RENEW ITS LICENSE BECAUSE OF
MISREPRESENTATIONS MADE TO THE COMMISSION AND ITS PREDECESSOR AS TO THE
OWNERSHIP OF THE APPLICANT'S CAPITAL STOCK.  TWO HUNDRED AND FORTY
SHARES, BEING TWENTY-FOUR PER CENT OF ITS OUTSTANDING CAPITAL STOCK,
WAS OWNED BY ONE PICKARD AND HIS FAMILY.  FOR SOME TWELVE YEARS THEY
RECEIVED ALL DIVIDENDS PAID ON THE STOCK AND PICKARD TOOK AN ACTIVE
INTEREST IN THE COMPANY'S AFFAIRS.  HE ALSO WAS A VICE-PRESIDENT OF THE
COLUMBIA BROADCASTING COMPANY AND HAD OBTAINED THE STOCK ON THE
ASSURANCE THAT HE WOULD HELP TO SECURE COLUMBIA AFFILIATION FOR STATION
WOKO, WOULD FURNISH, WITHOUT CHARGE, COLUMBIA ENGINEERS TO CONSTRUCT
THE STATION AT ALBANY, AND WOULD SUPPLY A GRAND PIANO AND CERTAIN
NEWSPAPER PUBLICITY. 

THE COMPANY, HOWEVER, IN REPORTING TO THE FEDERAL RADIO COMMISSION
AND TO THE FEDERAL COMMUNICATIONS COMMISSION THE NAMES OF ITS
STOCKHOLDERS AS IT WAS REQUIRED TO DO FOR MANY YEARS AND IN MANY
APPLICATIONS, CONCEALED THE FACT THAT THE PICKARDS HELD THIS STOCK
INTEREST AND REPRESENTED THAT THE SHARES WERE HELD BY OTHERS.  ITS
GENERAL MANAGER APPEARED ON BEHALF OF THE APPLICANT AT VARIOUS HEARINGS
AND FURNISHED FALSE TESTIMONY TO BOTH COMMISSIONS REGARDING THE
IDENTITY OF THE CORPORATION STOCKHOLDERS AND THE SHARES HELD BY EACH SO
AS TO CONCEAL THE PICKARD HOLDINGS.  THE PURPOSE OF THE CONCEALMENT WAS
TO PREVENT THE FACTS FROM BECOMING KNOWN TO PICKARD'S COLUMBIA
COLLEAGUES. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA REVERSED THE
COMMISSION'S DECISION DENYING RENEWAL OF THE LICENSE, A MAJORITY FOR
THE VARIOUS REASONS THAT WE WILL CONSIDER.  THE DISSENTING CHIEF
JUSTICE NOTED THAT HE DID "VERY HEARTILY AGREE WITH THE VIEW THAT THIS
IS A HARD CASE.  THE COMMISSION'S DRASTIC ORDER, TERMINATING THE LIFE
OF THE STATION, PUNISHES THE INNOCENT EQUALLY WITH THE GUILTY, AND IN
ITS RESULTS IS CONTRARY TO THE COMMISSION'S ACTION IN SEVERAL OTHER
COMPARABLE CASES.  BUT THAT THE MAKING OF THE ORDER WAS WITHIN THE
DISCRETION OF THE COMMISSION, I THINK IS REASONABLY CLEAR."  153 F.2D
623, 633.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE ISSUE
TO THE ADMINISTRATION OF THE ACT. 

WE COME TO A CONSIDERATION OF THE REASONS WHICH LED THE COURT OF
APPEALS TO REVERSE THE ORDER OF THE COMMISSION UNDER THE ADMONITION
THAT "REVIEW BY THE COURT SHALL BE LIMITED TO QUESTIONS OF LAW AND THAT
FINDINGS OF FACT BY THE COMMISSION, IF SUPPORTED BY SUBSTANTIAL
EVIDENCE, SHALL BE CONCLUSIVE UNLESS IT SHALL CLEARLY APPEAR THAT THE
FINDINGS OF THE COMMISSION ARE ARBITRARY OR CAPRICIOUS."  48 STAT.
1094, 47 U.S.C. SEC. 402(E). 

THE ACT PROVIDES AS TO APPLICATIONS SUCH AS WOKO FILED THAT "ALL SUCH
APPLICATIONS SHALL SET FORTH SUCH FACTS AS THE COMMISSION BY REGULATION
MAY PRESCRIBE AS TO THE CITIZENSHIP, CHARACTER, AND FINANCIAL,
TECHNICAL, AND OTHER QUALIFICATIONS OF THE APPLICANT TO OPERATE THE
STATION; THE OWNERSHIP AND LOCATION OF THE PROPOSED STATION  ...  AND
SUCH OTHER INFORMATION AS IT MAY REQUIRE."  IT REQUIRES SUCH STATEMENTS
TO BE UNDER OATH OR AFFIRMATION.  48 STAT. 1085, 47 U.S.C. SEC.
308(B).  IT PROVIDES, TOO, THAT ANY STATION LICENSE MAY BE REVOKED FOR
FALSE STATEMENTS IN THE APPLICATION.  48 STAT. 1086, 47 U.S.C. SEC.
312(A). 

IT IS SAID THAT IN THIS CASE THE COMMISSION FAILED TO FIND THAT THE
CONCEALMENT WAS OF MATERIAL FACTS OF HAD INFLUENCED THE COMMISSION IN
MAKING ANY DECISION, OR THAT IT WOULD HAVE ACTED DIFFERENTLY HAD IT
KNOWN THAT THE PICKARDS WERE THE BENEFICIAL OWNERS OF THE STOCK.  WE
THINK THIS IS BESIDE THE POINT.  THE FACT OF CONCEALMENT MAY BE MORE
SIGNIFICANT THAN THE FACTS CONCEALED.  THE WILLINGNESS TO DECEIVE A
REGULATORY BODY MAY BE DISCLOSED BY IMMATERIAL AND USELESS DECEPTIONS
AS WELL AS BY MATERIAL AND PERSUASIVE ONES.  WE DO NOT THINK IT IS AN
ANSWER TO SAY THAT THE DECEPTION WAS UNNECESSARY AND SERVED NO
PURPOSE.  IF THE APPLICANT HAD FORTHRIGHTLY REFUSED TO SUPPLY THE
INFORMATION ON THE GROUND THAT IT WAS NOT MATERIAL, WE SHOULD EXPECT
THE COMMISSION WOULD HAVE REJECTED THE APPLICATION AND WOULD HAVE BEEN
SUSTAINED IN SO DOING.  IF WE WOULD HOLD IT NOT UNLAWFUL, ARBITRARY OR
CAPRICIOUS TO REQUIRE THE INFORMATION BEFORE GRANTING A RENEWAL, IT
SEEMS DIFFICULT TO SAY THAT IT IS UNLAWFUL, ARBITRARY OR CAPRICIOUS TO
REFUSE A RENEWAL WHERE TRUE INFORMATION IS WITHHELD AND FALSE
INFORMATION IS SUBSTITUTED. 

WE ARE TOLD THAT STOCKHOLDERS OWNING SLIGHTLY MORE THAN 50 PER CENT
OF THE STOCK ARE NOT FOUND TO HAVE HAD ANY PART IN OR KNOWLEDGE OF THE
CONCEALMENT OR DECEPTION OF THE COMMISSION.  THIS MAY BE A VERY PROPER
CONSIDERATION FOR THE COMMISSION IN DETERMINING JUST AND APPROPRIATE
ACTION.  BUT AS MATTER OF LAW, THE FACT THAT THERE ARE INNOCENT
STOCKHOLDERS CAN NOT IMMUNIZE THE CORPORATION FROM THE CONSEQUENCES OF
SUCH DECEPTION.  IF OFFICERS OF THE CORPORATION BY SUCH MISMANAGEMENT
WASTE ITS ASSETS, PRESUMABLY THE STATE LAW AFFORDS ADEQUATE REMEDIES
AGAINST THE WRONGDOERS.  BUT IN THIS AS IN OTHER MATTERS, STOCKHOLDERS
ENTRUST THEIR INTERESTS TO THEIR CHOSEN OFFICERS AND OFTEN SUFFER FOR
THEIR DERELICTION.  CONSEQUENCES OF SUCH ACTS CANNOT BE ESCAPED BY A
CORPORATION MERELY BECAUSE NOT ALL OF ITS STOCKHOLDERS PARTICIPATED. 

RESPONDENT COMPLAINS THAT THE PRESENT CASE CONSTITUTES A DEPARTURE
FROM THE COURSE WHICH THE COMMISSION HAS TAKEN IN DEALING WITH
MISSTATEMENTS AND APPLICATIONS IN OTHER CASES.  MUCH IS MADE IN
ARGUMENT OF THE FACT THAT DECEPTIONS OF THIS CHARACTER HAVE NOT BEEN
UNCOMMON AND IT IS CLAIMED THAT THEY HAVE NOT BEEN DEALT WITH SO
SEVERELY AS IN THIS CASE.  CF. NAVARRO BROADCASTING ASSOCIATION, 8
F.C.C. 198.  BUT THE VERY FACT THAT TEMPORIZING AND COMPROMISING WITH
DECEPTION SEEMED NOT TO DISCOURAGE IT, MAY HAVE LED THE COMMISSION TO
THE DRASTIC MEASURES HERE TAKEN TO PRESERVE THE INTEGRITY OF ITS OWN
SYSTEM OF REPORTS.  THE MILD MEASURES TO OTHERS AND THE APPARENTLY
UNANNOUNCED CHANGE OF POLICY ARE CONSIDERATIONS APPROPRIATE FOR THE
COMMISSION IN DETERMINING WHETHER ITS ACTION IN THIS CASE IS TOO
DRASTIC, BUT WE CANNOT SAY THAT THE COMMISSION IS BOUND BY ANYTHING
THAT APPEARS BEFORE US TO DEAL WITH ALL CASES AT ALL TIMES AS IT HAS
DEALT WITH SOME THAT SEEM COMPARABLE. 

IT ALSO IS CONTENDED THAT THIS ORDER INFLICTS A PENALTY, THAT THE
MOTIVE IS PUNISHMENT AND THAT SINCE THE COMMISSION IS GIVEN NO POWERS
TO PENALIZE PERSONS, ITS ORDER MUST FALL.  WE THINK IT UNNECESSARY TO
INDULGE IN THE EXPOSITION OF WHAT A PENALTY IS.  IT IS ENOUGH TO DECIDE
THIS CASE TO KNOW WHAT A PENALTY IS NOT.  A DENIAL OF AN APPLICATION
FOR A LICENSE BECAUSE OF THE INSUFFICIENCY OR DELIBERATE FALSITY OF THE
INFORMATION LAWFULLY REQUIRED TO BE FURNISHED IS NOT A PENAL MEASURE. 
IT MAY HURT AND IT MAY CAUSE LOSS, BUT IT IS NOT MADE ILLEGAL,
ARBITRARY OR CAPRICIOUS BY THAT FACT. 

LASTLY, AND MORE IMPORTANTLY, THE COURT OF APPEALS SUGGESTED THAT IN
ORDER TO JUSTIFY REFUSAL TO RENEW, THE COMMISSION SHOULD HAVE MADE
FINDINGS WITH RESPECT TO THE QUALITY OF THE STATION'S SERVICE IN THE
PAST AND ITS EQUIPMENT FOR GOOD SERVICE IN THE FUTURE.  EVIDENCE OF THE
STATION'S ADEQUATE SERVICE WAS INTRODUCED AT THE HEARING.  THE
COMMISSION ON THE OTHER HAND INSISTS THAT IN ADMINISTERING THE ACT IT
MUST RELY UPON THE REPORTS OF LICENSEES.  IT POINTS OUT THAT THIS
CONCEALMENT WAS NOT CAUSED BY SLIGHT INADVERTENCE NOR WAS IT AN
ISOLATED INSTANCE, BUT THAT THE STATION CARRIED ON THE COURSE OF
DECEPTION FOR APPROXIMATELY TWELVE YEARS.  IT SAYS THAT IN DECIDING
WHETHER THE PROPOSED OPERATIONS WOULD SERVE PUBLIC INTEREST,
CONVENIENCE OR NECESSITY, CONSIDERATION MUST BE GIVEN TO THE CHARACTER,
BACKGROUND AND TRAINING OF ALL PARTIES HAVING AN INTEREST IN THE
PROPOSED LICENSE, AND THAT IT CANNOT BE REQUIRED TO EXERCISE THE
DISCRETION VESTED IN IT TO ENTRUST THE RESPONSIBILITIES OF A LICENSEE
TO AN APPLICANT GUILTY OF A SYSTEMATIC COURSE OF DECEPTION. 

WE CANNOT SAY THAT THE COMMISSION IS REQUIRED AS A MATTER OF LAW TO
GRANT A LICENSE ON A DELIBERATELY FALSE APPLICATION EVEN IF THE FALSITY
WERE NOT OF THIS DURATION AND CHARACTER, NOR CAN WE SAY THAT REFUSAL TO
RENEW THE LICENSE IS ARBITRARY AND CAPRICIOUS UNDER SUCH
CIRCUMSTANCES.  IT MAY VERY WELL BE THAT THIS STATION HAS ESTABLISHED
SUCH A STANDARD OF PUBLIC SERVICE THAT THE COMMISSION WOULD BE
JUSTIFIED IN CONSIDERING THAT ITS DECEPTION WAS NOT A MATTER THAT
AFFECTED ITS QUALIFICATIONS TO SERVE THE PUBLIC.  BUT IT IS THE
COMMISSION, NOT THE COURTS, WHICH MUST BE SATISFIED THAT THE PUBLIC
INTEREST WILL BE SERVED BY RENEWING THE LICENSE.  AND THE FACT THAT WE
MIGHT NOT HAVE MADE THE SAME DETERMINATION ON THE SAME FACTS DOES NOT
WARRANT A SUBSTITUTION OF JUDICIAL FOR ADMINISTRATIVE DISCRETION SINCE
CONGRESS HAS CONFIDED THE PROBLEM TO THE LATTER.  WE AGREE THAT THIS IS
A HARD CASE, BUT WE CANNOT AGREE THAT IT SHOULD BE ALLOWED TO MAKE BAD
LAW. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE
REMANDED TO THAT COURT WITH DIRECTION TO REMAND TO THE COMMISSION. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :








UNITED STATES V. CARMACK, 329 U.S. 230 


NO. 40.  ARGUED OCTOBER 18, 1946.  - DECIDED DECEMBER 9, 1946.  - 151
F.2D 881, REVERSED. 


1.  UNDER SEC. 1 OF THE CONDEMNATION ACT OF AUGUST 1, 1888,
AUTHORIZING ANY OFFICER OF THE GOVERNMENT AUTHORIZED TO PROCURE REAL
ESTATE FOR THE ERECTION OF A PUBLIC BUILDING TO ACQUIRE THE SAME FOR
THE UNITED STATES BY CONDEMNATION "WHENEVER IN HIS OPINION IT IS
NECESSARY OR ADVANTAGEOUS TO THE GOVERNMENT TO DO SO," AND THE PUBLIC
BUILDINGS ACT OF MAY 25, 1926, AS AMENDED, AUTHORIZING THE FEDERAL
WORKS ADMINISTRATOR TO ACQUIRE BY CONDEMNATION "SUCH SITES  ... AS HE
MAY DEEM NECESSARY" FOR POST OFFICES AND OTHER PUBLIC BUILDINGS, THE
FEDERAL WORKS ADMINISTRATOR WAS AUTHORIZED TO ACQUIRE BY CONDEMNATION
LAND HELD IN TRUST AND USED BY A CITY FOR SUCH PUBLIC PURPOSES AS THOSE
OF A LOCAL PARK, COURTHOUSE, CITY HALL AND PUBLIC LIBRARY - AFTER IT
HAD BEEN SELECTED JOINTLY BY HIM AND THE POSTMASTER GENERAL AS A SITE
FOR A POST OFFICE.  PP. 242, 247-248. 

2.  FAR REMOVED FROM THE TIME AND CIRCUMSTANCES THAT LED TO THE
ENACTMENT OF THESE STATUTES IN 1888 AND 1926, THIS COURT MUST BE SLOW
TO READ INTO THEM TODAY UNEXPRESSED LIMITATIONS RESTRICTING THE
AUTHORITY OF THE OFFICIALS NAMED IN THE ACTS AS THE ONES UPON WHOM
CONGRESS CHOSE TO RELY.  P. 236. 

3.  THE FACT THAT THE SITE IN QUESTION IS HELD IN TRUST INSTEAD OF IN
FEE AND IS ALREADY BEING USED BY A GOVERNMENTAL SUBDIVISION OF A STATE
FOR PUBLIC PURPOSES IMPRESSED UPON IT BY PRIVATE OWNERS OVER A CENTURY
AGO CANNOT PREVENT ITS CONDEMNATION BY THE UNITED STATES AS A MEANS OF
CARRYING OUT AN ADMITTEDLY FEDERAL GOVERNMENTAL FUNCTION.  KOHL V.
UNITED STATES, 91 U.S. 367.  PP. 236-242. 

(A)  IF THE UNITED STATES HAS DETERMINED ITS NEED FOR CERTAIN LANDS
FOR A PUBLIC USE THAT IS WITHIN ITS FEDERAL SOVEREIGN POWERS, IT MUST
HAVE THE RIGHT TO APPROPRIATE THAT LAND.  P. 236. 

(B)  DECISIONS OF FEDERAL REPRESENTATIVES AS TO THE MEANS OF CARRYING
OUT AN ADMITTEDLY FEDERAL GOVERNMENTAL FUNCTION CANNOT BE SUBORDINATED
TO THOSE OF INDIVIDUAL GRANTORS OR LOCAL OFFICIALS.  P. 239. 

(C)  A DECREE OF CONDEMNATION WILL DISPOSE OF ANY DEFECTS IN THE
TITLE WHICH OTHERWISE MIGHT EXIST BECAUSE OF THE FACT THAT THE LAND IS
NOW HELD IN TRUST FOR OTHER PURPOSES THAN THAT FOR WHICH THE GOVERNMENT
ACQUIRES IT.  P. 239. 

4.  THE CONSIDERATIONS THAT MADE IT APPROPRIATE FOR THE CONSTITUTION
TO DECLARE THAT THE CONSTITUTION OF THE UNITED STATES AND THE LAWS OF
THE UNITED STATES MADE IN PURSUANCE THEREOF SHALL BE THE SUPREME LAW OF
THE LAND MAKE IT APPROPRIATE TO RECOGNIZE THAT THE POWER OF EMINENT
DOMAIN, WHEN EXERCISED BY CONGRESS WITHIN ITS CONSTITUTIONAL POWERS, BE
EQUALLY SUPREME.  STOCKTON V. BALTIMORE & N.Y.R. CO., 32 F. 9, 19.  P.
240. 

5.  THE OFFICIALS DESIGNATED BY CONGRESS HAVE BEEN AUTHORIZED BY
CONGRESS TO USE THEIR BEST JUDGMENT IN SELECTING POST OFFICE SITES.  P.
242. 

6.  IF THE OFFICIALS SO DESIGNATED HAVE USED SUCH JUDGMENT, IN GOOD
FAITH, IN SELECTING THE PROPOSED PARK SITE IN SPITE OF ITS CONFLICTING
LOCAL USES, THE FEDERAL WORKS ADMINISTRATOR HAS EXPRESS AUTHORITY TO
DIRECT THE CONDEMNATION OF THAT SITE.  P. 242. 

7.  THE JUDGMENT EXERCISED BY THE DESIGNATED OFFICIALS IN SELECTING
THIS SITE OUT OF 22 SITES SUGGESTED, AND OUT OF TWO CLOSELY BALANCED
ALTERNATIVES, CONSTITUTED AN ADMINISTRATIVE AND LEGISLATIVE DECISION
NOT SUBJECT TO JUDICIAL REVIEW ON ITS MERITS.  PP. 242, 243. 

8.  THE ACTS DO NOT EXCLUDE FROM THE CONSIDERATION OF THE DESIGNATED
OFFICIALS THIS OR OTHER SITES, THE SELECTION OF WHICH MIGHT INTERFERE
WITH LOCAL GOVERNMENTAL FUNCTIONS.  P. 243. 

9.  THE PROCEDURE FOLLOWED IN MAKING THE SELECTION OF THE SITE IN
THIS CASE SHOWED EXTRAORDINARY EFFORT TO ARRIVE AT A FAIR AND REASONED
CONCLUSION AND THE RECORD CONTAINS NO BASIS FOR A FINDING THAT THE
DESIGNATED OFFICIALS ACTED IN BAD FAITH OR SO "CAPRICIOUSLY AND
ARBITRARILY" THAT THEIR ACTION WAS WITHOUT ADEQUATE DETERMINING
PRINCIPLE OR WAS UNREASONED, IN ANY SENSE WHICH WOULD INVALIDATE THE
SELECTION MADE UNDER ANY CONSTRUCTION OF THE ACTS HERE INVOLVED.  PP.
243-248. 

10.  THE COMPARATIVE DESIRABILITY OF AND NECESSITY FOR THE SITE WERE
MATTERS FOR LEGISLATIVE OR ADMINISTRATIVE DETERMINATION RATHER THAN FOR
A JUDICIAL FINDING.  PP. 247, 248. 

UNITED STATES V. CARMACK. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

THE UNITED STATES PETITIONED A DISTRICT COURT TO CONDEMN AS A SITE
FOR A POST OFFICE AND CUSTOMHOUSE CERTAIN LAND IN A CITY WHICH THE CITY
HELD IN TRUST AND USED FOR PUBLIC PURPOSES AS A LOCAL PARK, COURTHOUSE,
CITY HALL, AND PUBLIC LIBRARY.  AN HEIR OF THE GRANTOR IN TRUST
CONTESTED THE PETITION.  THE DISTRICT COURT FOUND THAT SHE HAD NO
INTEREST PERMITTING HER TO DO SO AND ENTERED A PRELIMINARY DECREE IN
FAVOR OF THE UNITED STATES.  THE CIRCUIT COURT OF APPEALS HELD THAT SHE
DID HAVE A SPECIAL INTEREST ENTITLING HER TO OBJECT TO THE PROPERTY
BEING TAKEN FOR A PURPOSE DESTRUCTIVE OF THE PUBLIC USE TO WHICH IT HAD
BEEN DEDICATED BY HER ANCESTORS, AND REMANDED THE CASE FOR FURTHER
PROCEEDINGS.  135 F.2D 196.  ON RETRIAL, THE DISTRICT COURT HELD THAT
THE SELECTION OF THE SITE AMOUNTED TO AN "ARBITRARY AND UNNECESSARY
ACT" AND DISMISSED THE PETITION.  55 F.SUPP.  555.  THE CIRCUIT COURT
OF APPEALS AFFIRMED ON THE GROUND THAT THE FEDERAL WORKS ADMINISTRATOR
AND THE POSTMASTER GENERAL LACKED AUTHORITY "TO TAKE THE PARTICULAR
LAND SOUGHT TO BE CONDEMNED."  151 F.2D 881.  THIS COURT GRANTED
CERTIORARI.  327 U.S. 775.  REVERSED, P. 248. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING WAS INSTITUTED BY THE UNITED STATES TO CONDEMN LAND
AS A SITE FOR A POST OFFICE AND CUSTOMHOUSE IN THE CITY OF CAPE
GIRARDEAU, MISSOURI, IN RELIANCE UPON SEVERAL FEDERAL STATUTES,
INCLUDING THE GENERAL CONDEMNATION ACT OF AUGUST 1, 1888, AND THE
PUBLIC BUILDINGS ACT OF MAY 25, 1926.  FN1  THE CITY AND SITE WERE
SELECTED BY THE FEDERAL WORKS ADMINISTRATOR AND THE POSTMASTER GENERAL
ACTING JOINTLY UNDER THE PUBLIC BUILDINGS ACT.  THE PRINCIPAL ISSUE IS:
WAS THE FEDERAL WORKS ADMINISTRATOR AUTHORIZED BY THE FOREGOING
STATUTES TO ACQUIRE BY CONDEMNATION LAND HELD IN TRUST AND USED BY THE
CITY FOR SUCH PUBLIC PURPOSES AS THOSE OF A LOCAL PARK, COURTHOUSE,
CITY HALL AND PUBLIC LIBRARY? 

IN 1941, THE UNITED STATES PETITIONED THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF MISSOURI TO CONDEMN AS A SITE FOR A
UNITED STATES POST OFFICE AND CUSTOMHOUSE ABOUT ONE AND ONE-HALF ACRES,
NEAR THE CENTER OF THE CITY OF CAPE GIRARDEAU, TOGETHER WITH THE
IMPROVEMENTS THEREON EXCEPT A PUBLIC LIBRARY BUILDING.  THIS SITE WAS
PART OF A FOUR-ACRE PUBLIC PARK AND THE IMPROVEMENTS TO BE CONDEMNED
INCLUDED A BUILDING USED AS THE COUNTY COURTHOUSE AND CITY HALL, A
MEMORIAL FOUNTAIN, A SMALL MEMORIAL MONUMENT AND A PORTION OF A
BANDSTAND.  THE LIBRARY BUILDING APPARENTLY WAS TO BE REMOVED BY ITS
OWNERS ON 30 DAYS' NOTICE FROM THE UNITED STATES. 

THE PETITION INCLUDED AS PARTIES DEFENDANT THE CITY AND COUNTY,
NUMEROUS OFFICIALS AND ALL KNOWN AND UNKNOWN HEIRS OR OTHERS WHO MIGHT
CLAIM AN INTEREST IN THIS SITE ESPECIALLY THROUGH THOSE WHO CONVEYED
IT, IN TRUST, IN 1807 TO THE COMMISSIONERS OF THE DISTRICT OR, IN
TRUST, IN 1820 TO THE INHABITANTS OF THE TOWN OF CAPE GIRARDEAU. 
RESPONDENT WAS THE ONLY DEFENDANT TO FILE AN ANSWER.  FINDING THAT SHE
HAD NO INTEREST PERMITTING HER TO MAINTAIN THE DEFENSES SHE ASSERTED,
THE DISTRICT COURT ENTERED A PRELIMINARY DECREE IN FAVOR OF THE UNITED
STATES.  ON RESPONDENT'S APPEAL THE CIRCUIT COURT OF APPEALS REMANDED
THE CAUSE FOR FURTHER PROCEEDINGS CONSISTENT WITH ITS OPINION HOLDING
THAT THE RESPONDENT HAD A SPECIAL INTEREST ENTITLING HER TO OBJECT TO
THE PROPERTY BEING TAKEN FOR A PURPOSE DESTRUCTIVE OF THE PUBLIC USE TO
WHICH IT HAD BEEN DEDICATED BY HER ANCESTORS.  CARMACK V. UNITED
STATES, 135 F.2D 196. 

IN 1944, ON RETRIAL BEFORE A DIFFERENT JUDGE, THE DISTRICT COURT
RECOGNIZED THE RESPONDENT AS ENTITLED TO CONTEST THE CONDEMNATION AND,
AT THE DIRECTION OF THE CIRCUIT COURT OF APPEALS, HEARD EVIDENCE AS TO
WHETHER OR NOT THE OFFICIALS OF THE UNITED STATES ACTED CAPRICIOUSLY
AND ARBITRARILY IN SELECTING THIS SITE.  IT HELD THAT "THE SELECTION OF
THE SITE DESCRIBED IN THE PETITION, UNDER ALL THE FACTS REFERRED TO,
AMOUNTS IN LAW TO AN ARBITRARY AND UNNECESSARY ACT" AND DISMISSED THE
PETITION.  UNITED STATES V. CERTAIN LAND, ETC., 55 F.SUPP.  555, 564. 
THE CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT ON THE GROUND THAT
THE FEDERAL WORKS ADMINISTRATOR AND THE POSTMASTER GENERAL DID NOT HAVE
SUFFICIENT STATUTORY AUTHORITY "TO TAKE THE PARTICULAR LAND SOUGHT TO
BE CONDEMNED."  IT THEN EXPRESSLY FOUND IT UNNECESSARY TO CONSIDER
WHETHER OR NOT THE FEDERAL OFFICIALS HAD ACTED "CAPRICIOUSLY AND
ARBITRARILY."  UNITED STATES V. CARMACK, 151 F.2D 881, 882.  BECAUSE OF
THE IMPORTANCE OF THE CONSTRUCTION OF THE STATUTES AUTHORIZING THE
CONDEMNATION OF LAND FOR FEDERAL USES, WE GRANTED CERTIORARI.  327 U.S.
775.  FN2 

BOTH THE GENERAL CONDEMNATION ACT AND THE PUBLIC BUILDINGS ACT  FN3
EXPRESSLY AUTHORIZED THE ACQUISITION OF LAND BY THE UNITED STATES BY
CONDEMNATION AS A SITE FOR A UNITED STATES POST OFFICE, CUSTOMHOUSE OR
COURTHOUSE.  NEITHER ACT EXPRESSLY NAMED THE CITY OR DESIGNATED THE
SITE TO BE CONDEMNED IN THIS CASE.  NEITHER EXPRESSLY STATED WHETHER OR
NOT SITES ALREADY IN USE FOR CONFLICTING FEDERAL, STATE OR LOCAL PUBLIC
PURPOSES WERE SUBJECT TO CONDEMNATION.  THE CONDEMNATION ACT
SUPPLEMENTED THE FEDERAL RIGHT "TO PROCURE REAL ESTATE FOR THE ERECTION
OF A PUBLIC BUILDING OR FOR OTHER PUBLIC USES," BY ADDING TO IT A
GENERAL FEDERAL POWER OF CONDEMNATION UNDER JUDICIAL PROCESS TO BE
EXERCISED BY AN OFFICER OF THE GOVERNMENT "WHENEVER IN HIS OPINION IT
IS NECESSARY OR ADVANTAGEOUS TO THE GOVERNMENT TO DO SO."  THE PUBLIC
BUILDINGS ACT, AS AN INCIDENT TO AN ORIGINAL $150,000,000 PROGRAM, GAVE
AUTHORITY AND DIRECTION TO THE SECRETARY OF THE TREASURY (LATER
SUBSTITUTING THE FEDERAL WORKS ADMINISTRATOR) "TO ACQUIRE, BY PURCHASE,
CONDEMNATION, OR OTHERWISE, SUCH SITES  ...  AS HE MAY DEEM NECESSARY,
..."  IT SPECIFIED THAT AS TO "BUILDINGS TO BE USED IN WHOLE OR IN PART
FOR POSTOFFICE PURPOSES, THE FEDERAL WORKS ADMINISTRATOR, UNDER
REGULATIONS TO BE PRESCRIBED BY HIM, SHALL ACT JOINTLY WITH THE
POSTMASTER GENERAL IN THE SELECTION OF TOWNS OR CITIES IN WHICH
BUILDINGS ARE TO BE CONSTRUCTED AND THE SELECTION OF SITES
THEREIN:..."  FN4  THESE ACTS WERE NATURAL MEANS FOR CONGRESS TO ADOPT
IN PUTTING ITS CONSTITUTIONAL POWERS INTO USE ON A SCALE COMMENSURATE
WITH THE SIZE OF THE NATION AND THE NEED OF THE TIME.  NEITHER ACT
IMPOSED EXPRESSLY ANY LIMITATIONS UPON THE AUTHORITY OF THE OFFICIALS
DESIGNATED BY CONGRESS TO EXERCISE ITS POWER OF CONDEMNATION IN
PROCURING SITES FOR PUBLIC BUILDINGS DEEMED NECESSARY BY SUCH OFFICIALS
TO ENABLE THE GOVERNMENT TO PERFORM CERTAIN SPECIFIED FUNCTIONS.  FN5
FAR REMOVED FROM THE TIME AND CIRCUMSTANCES THAT LED TO THE ENACTMENT
OF THESE STATUTES IN 1888 AND 1926, THIS COURT MUST BE SLOW TO READ
INTO THEM TODAY UNEXPRESSED LIMITATIONS RESTRICTING THE AUTHORITY OF
THE VERY OFFICIALS NAMED IN THE ACTS AS THE ONES UPON WHOM CONGRESS
CHOSE TO RELY. 

THE POWER OF EMINENT DOMAIN IS ESSENTIAL TO A SOVEREIGN GOVERNMENT. 
IF THE UNITED STATES HAS DETERMINED ITS NEED FOR CERTAIN LAND FOR A
PUBLIC USE THAT IS WITHIN ITS FEDERAL SOVEREIGN POWERS, IT MUST HAVE
THE RIGHT TO APPROPRIATE THAT LAND.  OTHERWISE, THE OWNER OF THE LAND,
BY REFUSING TO SELL IT OR BY CONSENTING TO DO SO ONLY AT AN
UNREASONABLY HIGH PRICE, IS ENABLED TO SUBORDINATE THE CONSTITUTIONAL
POWERS OF CONGRESS TO HIS PERSONAL WILL.  THE FIFTH AMENDMENT, IN TURN,
PROVIDES HIM WITH IMPORTANT PROTECTION AGAINST ABUSE OF THE POWER OF
EMINENT DOMAIN BY THE FEDERAL GOVERNMENT.  FN6 

WHILE IN ITS EARLY DAYS THE FEDERAL GOVERNMENT FILED ITS CONDEMNATION
CASES IN THE STATE COURTS, THIS COURT, IN KOHL V. UNITED STATES, 91
U.S. 367, DISPOSED OF THE IDEA THAT THIS WAS NECESSARY.  IN THAT CASE,
WHICH HAS BECOME THE LEADING CASE ON THE FEDERAL POWER OF EMINENT
DOMAIN, MR. JUSTICE STRONG ALSO SAID: 

"IT HAS NOT BEEN SERIOUSLY CONTENDED DURING THE ARGUMENT THAT THE
UNITED STATES GOVERNMENT IS WITHOUT POWER TO APPROPRIATE LANDS OR OTHER
PROPERTY WITHIN THE STATES FOR ITS OWN USES, AND TO ENABLE IT TO
PERFORM ITS PROPER FUNCTIONS.  SUCH AN AUTHORITY IS ESSENTIAL TO ITS
INDEPENDENT EXISTENCE AND PERPETUITY.  THESE CANNOT BE PRESERVED IF THE
OBSTINACY OF A PRIVATE PERSON, OR IF ANY OTHER AUTHORITY, CAN PREVENT
THE ACQUISITION OF THE MEANS OR INSTRUMENTS BY WHICH ALONE GOVERNMENTAL
FUNCTIONS CAN BE PERFORMED.  THE POWERS VESTED BY THE CONSTITUTION IN
THE GENERAL GOVERNMENT DEMAND FOR THEIR EXERCISE THE ACQUISITION OF
LANDS IN ALL THE STATES.  THESE ARE NEEDED FOR FORTS, ARMORIES, AND
ARSENALS, FOR NAVY-YARDS AND LIGHTHOUSES, FOR CUSTOM-HOUSES, POST
OFFICES, AND COURTHOUSES, AND FOR OTHER PUBLIC USES.  IF THE RIGHT TO
ACQUIRE PROPERTY FOR SUCH USES MAY BE MADE A BARREN RIGHT BY THE
UNWILLINGNESS OF PROPERTY-HOLDERS TO SELL, OR BY THE ACTION OF A STATE
PROHIBITING A SALE TO THE FEDERAL GOVERNMENT, THE CONSTITUTIONAL GRANTS
OF POWER MAY BE RENDERED NUGATORY, AND THE GOVERNMENT IS DEPENDENT FOR
ITS PRACTICAL EXISTENCE UPON THE WILL OF A STATE, OR EVEN UPON THAT OF
A PRIVATE CITIZEN.  THIS CANNOT BE.  NO ONE DOUBTS THE EXISTENCE IN THE
STATE GOVERNMENTS OF THE RIGHT OF EMINENT DOMAIN,  - A RIGHT DISTINCT
FROM AND PARAMOUNT TO THE RIGHT OF ULTIMATE OWNERSHIP.  IT GROWS OUT OF
THE NECESSITIES OF THEIR BEING, NOT OUT OF THE TENURE BY WHICH LANDS
ARE HELD.  IT MAY BE EXERCISED, THOUGH THE LANDS ARE NOT HELD BY GRANT
FROM THE GOVERNMENT, EITHER MEDIATELY OR IMMEDIATELY, AND INDEPENDENT
OF THE CONSIDERATION WHETHER THEY WOULD ESCHEAT TO THE GOVERNMENT IN
CASE OF A FAILURE OF HEIRS.  THE RIGHT IS THE OFFSPRING OF POLITICAL
NECESSITY; AND IT IS INSEPARABLE FROM SOVEREIGNTY, UNLESS DENIED TO IT
BY ITS FUNDAMENTAL LAW....  BUT IT IS NO MORE NECESSARY FOR THE
EXERCISE OF THE POWERS OF A STATE GOVERNMENT THAN IT IS FOR THE
EXERCISE OF THE CONCEDED POWERS OF THE FEDERAL GOVERNMENT.  THAT
GOVERNMENT IS AS SOVEREIGN WITHIN ITS SPHERE AS THE STATES ARE WITHIN
THEIRS.  TRUE, ITS SPHERE IS LIMITED.  CERTAIN SUBJECTS ONLY ARE
COMMITTED TO IT; BUT ITS POWER OVER THOSE SUBJECTS IS AS FULL AND
COMPLETE AS IS THE POWER OF THE STATES OVER THE SUBJECTS TO WHICH THEIR
SOVEREIGNTY EXTENDS.... 

     .         .         .         .        . 

"IF THE UNITED STATES HAVE THE POWER, IT MUST BE COMPLETE IN ITSELF. 
IT CAN NEITHER BE ENLARGED NOR DIMINISHED BY A STATE.  NOR CAN ANY
STATE PRESCRIBE THE MANNER IN WHICH IT MUST BE EXERCISED.  THE CONSENT
OF A STATE CAN NEVER BE A CONDITION PRECEDENT TO ITS ENJOYMENT."  KOHL
V. UNITED STATES, SUPRA, 371-372, 374. 

THE KOHL CASE APPROVED THE CONDEMNATION OF PRIVATELY OWNED LAND, THEN
SUBJECT TO A PERPETUAL LEASEHOLD, FOR A POST OFFICE SITE IN CINCINNATI,
OHIO, UNDER AN ACT OF CONGRESS EXPRESSLY NAMING THAT CITY BUT NOT
EXPRESSLY NAMING THE SITE.  THE RESPONDENT HERE SEEKS, BY JUDICIAL
INTERPRETATION OF THE GENERAL CONDEMNATION ACT AND THE PUBLIC BUILDINGS
ACT, TO EXCLUDE FROM CONDEMNATION A PARTICULAR SITE IN CAPE GIRARDEAU
SELECTED FOR A POST OFFICE BY THE APPROPRIATE FEDERAL OFFICIALS.  SHE
DEPENDS UPON THE FACT THAT THE SITE ALREADY IS BEING USED BY A
GOVERNMENTAL SUBDIVISION OF MISSOURI FOR OTHER PUBLIC PURPOSES
IMPRESSED UPON IT BY ITS PRIVATE OWNERS OVER A CENTURY AGO.  THE
PRINCIPLE OF FEDERAL SUPREMACY, SO WELL EXPRESSED IN THE KOHL CASE,
ARGUES AGAINST SUCH A SUBORDINATION OF THE DECISIONS OF FEDERAL
REPRESENTATIVES TO THOSE OF INDIVIDUAL GRANTORS OR LOCAL OFFICIALS AS
TO THE MEANS OF CARRYING OUT AN ADMITTEDLY FEDERAL GOVERNMENTAL
FUNCTION.  FN7 

IT MAKES LITTLE DIFFERENCE THAT THE SITE HERE SOUGHT TO BE CONDEMNED
IS HELD BY THE CITY IN TRUST INSTEAD OF IN FEE.  THE CITY GOVERNMENT IS
NOT RESISTING THE CONDEMNATION.  THE FEDERAL GOVERNMENT CAN OBTAIN, BY
VOLUNTARY CONVEYANCE, WHATEVER TITLE THE CITY CAN CONVEY.  THE WEAKNESS
IN THE CITY'S RIGHT TO SELL OR EXCHANGE THIS SITE ARISES FROM
RESTRICTIONS IN THE CONVEYANCE TO IT.  THROUGH THE INCLUSION, AS
DEFENDANTS, OF ALL CLAIMANTS WHO MIGHT RELY UPON SUCH RESTRICTIONS OR
MIGHT CLAIM AN INTEREST THROUGH THE GRANTORS OF THIS SITE, A DECREE OF
CONDEMNATION WILL DISPOSE OF THE SUGGESTED DEFECTS.  BY GIVING NOTICE
TO ALL CLAIMANTS TO A DISPUTED TITLE, CONDEMNATION PROCEEDINGS PROVIDE
A JUDICIAL PROCESS FOR SECURING BETTER TITLE AGAINST ALL THE WORLD THAN
MAY BE OBTAINED BY VOLUNTARY CONVEYANCE. 

BOTH IN THEMSELVES AND FROM THE RELATION OF THESE ACTS TO THE
CONSTITUTION, WE FIND SUBSTANTIAL REASON FOR MAKING THEIR BROAD
LANGUAGE EFFECTIVE TO ITS FULL CONSTITUTIONAL LIMIT.  WHILE THE FEDERAL
POWER OF EMINENT DOMAIN IS LIMITED TO TAKING PROPERTY FOR FEDERAL
PUBLIC USES, THE QUESTION OF THE EXISTENCE OF A FEDERAL PUBLIC USE
PRESENTS NO DIFFICULTY HERE BECAUSE THE CONSTITUTIONAL POWER OF
CONGRESS TO ESTABLISH POST OFFICES IS EXPRESS.  FN8 

THE CONSIDERATIONS THAT MADE IT APPROPRIATE FOR THE CONSTITUTION TO
DECLARE THAT THE CONSTITUTION OF THE UNITED STATES, AND THE LAWS OF THE
UNITED STATES MADE IN PURSUANCE THEREOF, SHALL BE THE SUPREME LAW OF
THE LAND  FN9  MAKE IT APPROPRIATE TO RECOGNIZE THAT THE POWER OF
EMINENT DOMAIN, WHEN EXERCISED BY CONGRESS WITHIN ITS CONSTITUTIONAL
POWERS, IS EQUALLY SUPREME.  MR. JUSTICE BRADLEY STATED THIS PRINCIPLE
CLEARLY, WHILE ON CIRCUIT, IN STOCKTON V. BALTIMORE & N.Y.R. CO., 32 F.
9, 19:    "THE ARGUMENT BASED UPON THE DOCTRINE THAT THE STATES HAVE
THE EMINENT DOMAIN OR HIGHEST DOMINION IN THE LANDS COMPRISED WITHIN
THEIR LIMITS, AND THAT THE UNITED STATES HAVE NO DOMINION IN SUCH
LANDS, CANNOT AVAIL TO FRUSTRATE THE SUPREMACY GIVEN BY THE
CONSTITUTION TO THE GOVERNMENT OF THE UNITED STATES IN ALL MATTERS
WITHIN THE SCOPE OF ITS SOVEREIGNTY.  THIS IS NOT A MATTER OF WORDS,
BUT OF THINGS.  IF IT IS NECESSARY THAT THE UNITED STATES GOVERNMENT
SHOULD HAVE AN EMINENT DOMAIN STILL HIGHER THAN THAT OF THE STATE, IN
ORDER THAT IT MAY FULLY CARRY OUT THE OBJECTS AND PURPOSES OF THE
CONSTITUTION, THEN IT HAS IT.  WHATEVER MAY BE THE NECESSITIES OR
CONCLUSIONS OF THEORETICAL LAW AS TO EMINENT DOMAIN OR ANYTHING ELSE,
IT MUST BE RECEIVED AS A POSTULATE OF THE CONSTITUTION THAT THE
GOVERNMENT OF THE UNITED STATES IS INVESTED WITH FULL AND COMPLETE
POWER TO EXECUTE AND CARRY OUT ITS PURPOSES."  FN10 

THE FIFTH AMENDMENT TO THE CONSTITUTION SAYS "NOR SHALL PRIVATE
PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION."  THIS IS
A TACIT RECOGNITION OF A PREEXISTING POWER TO TAKE PRIVATE PROPERTY FOR
PUBLIC USE, RATHER THAN A GRANT OF NEW POWER.  FN11  IT IMPOSES ON THE
FEDERAL GOVERNMENT THE OBLIGATION TO PAY JUST COMPENSATION WHEN IT
TAKES ANOTHER'S PROPERTY FOR PUBLIC USE IN ACCORDANCE WITH THE FEDERAL
SOVEREIGN POWER TO APPROPRIATE IT.  ACCORDINGLY, WHEN THE FEDERAL
GOVERNMENT THUS TAKES FOR A FEDERAL PUBLIC USE THE INDEPENDENTLY HELD
AND CONTROLLED PROPERTY OF A STATE OR OF A LOCAL SUBDIVISION, THE
FEDERAL GOVERNMENT RECOGNIZES ITS OBLIGATION TO PAY JUST COMPENSATION
FOR IT AND IT IS CONCEDED IN THIS CASE THAT THE FEDERAL GOVERNMENT MUST
PAY JUST COMPENSATION FOR THE LAND CONDEMNED.  FN12 

THE FOREGOING ESTABLISHES THE PRINCIPLE OF THE SUPREMACY OF A FEDERAL
PUBLIC USE OVER ALL OTHER USES IN A CLEARLY DESIGNATED FIELD SUCH AS
THAT OF ESTABLISHING POST OFFICES.  THE GOVERNMENT HERE CONTENDS THAT
THE OFFICIALS DESIGNATED BY CONGRESS HAVE BEEN AUTHORIZED BY CONGRESS
TO USE THEIR BEST JUDGMENT IN SELECTING POST OFFICE SITES.  IT CONTENDS
ALSO THAT IF THE OFFICIALS SO DESIGNATED HAVE USED SUCH JUDGMENT, IN
GOOD FAITH, IN SELECTING THE PROPOSED PARK SITE IN SPITE OF ITS
CONFLICTING LOCAL PUBLIC USES, THE FEDERAL WORKS ADMINISTRATOR HAS
EXPRESS AUTHORITY TO DIRECT THE CONDEMNATION OF THAT SITE.  WE AGREE
WITH THOSE CONTENTIONS.  WE FIND IN THE BROAD TERMS OF THE PUBLIC
BUILDINGS ACT AUTHORITY FOR THE DESIGNATED OFFICIALS TO SELECT THE SITE
THEY DID.  WE FIND, IN BOTH ACTS, AUTHORITY FOR THEM TO ACQUIRE BY
CONDEMNATION THE SITE THUS LAWFULLY SELECTED.  THE JUDGMENT EXERCISED
BY THE DESIGNATED OFFICIALS IN SELECTING THIS SITE OUT OF 22 SITES
SUGGESTED, AND OUT OF TWO CLOSELY BALANCED ALTERNATIVES, CONSTITUTED AN
ADMINISTRATIVE AND LEGISLATIVE DECISION NOT SUBJECT TO JUDICIAL REVIEW
ON ITS MERITS.  IT WAS WITHIN THE LEGISLATIVE POWER OF CONGRESS TO
CHOOSE OR REJECT THIS SITE BY DIRECT ACTION.  IT WOULD HAVE BEEN WITHIN
ITS LEGISLATIVE POWER TO EXCLUDE FROM THE CONSIDERATION OF ITS
REPRESENTATIVES THIS OR OTHER SITES, THE SELECTION OF WHICH MIGHT
INTERFERE WITH LOCAL GOVERNMENTAL FUNCTIONS.  SUCH AN EXCLUSION WOULD
HAVE BEEN AN ACT OF LEGISLATIVE POLICY.  WE FIND NO SUCH EXPRESS OR
NECESSARILY IMPLIED EXCLUSION IN THE BROAD LANGUAGE OF THESE ACTS. 
FN13 

IN THIS CASE, IT IS UNNECESSARY TO DETERMINE WHETHER OR NOT THIS
SELECTION COULD HAVE BEEN SET ASIDE BY THE COURTS AS UNAUTHORIZED BY
CONGRESS IF THE DESIGNATED OFFICIALS HAD ACTED IN BAD FAITH OR SO
"CAPRICIOUSLY AND ARBITRARILY" THAT THEIR ACTION WAS WITHOUT ADEQUATE
DETERMINING PRINCIPLE OR WAS UNREASONED.  FN14  THE RECORD PRESENTS NO
SUCH ISSUE HERE.  THE PROCEDURE FOLLOWED IN MAKING THE SELECTION OF THE
SITE SHOWED EXTRAORDINARY EFFORT TO ARRIVE AT A FAIR AND REASONED
CONCLUSION.  FN15  THE SITE INSPECTOR, IN HIS ORIGINAL REPORT,
RECOMMENDED THE PARK SITE AS HIS SECOND CHOICE AND DEMONSTRATED THE
REASONABLENESS OF A CHOICE, BY HIS SUPERIORS, OF EITHER OF HIS FIRST
TWO SELECTIONS.  FN16  HIS ESTIMATE OF DIVIDED COMMUNITY SENTIMENT,
WITH APPARENT COMMUNITY PREFERENCE FOR THE PARK SITE, INDICATES THE
ABSENCE OF CAPRICIOUSNESS AND ARBITRARINESS IN THE GOVERNMENT'S FINAL
SELECTION OF THE PARK SITE.  FN17  THE POPULAR REFERENDUM VOTE OF 1612
TO 1344 IN FAVOR OF THE TRANSFER OF THE PARK SITE BY THE CITY TO THE
FEDERAL GOVERNMENT, IN EXCHANGE FOR THE GOVERNMENT'S TRANSFER OF ITS
PRESENT POST OFFICE SITE TO THE CITY, CONFIRMS HIS ESTIMATE.  THESE
FEDERAL OFFICIALS HAD THE RIGHT, IF NOT THE OBLIGATION, TO CONSIDER AT
THIS TIME THE NECESSITY OF DISPOSING OF THE PRESENT POST OFFICE SITE
AND OF THE SINGLE-PURPOSE GOVERNMENTAL BUILDING THEREON.  THAT ISSUE
INEVITABLY WOULD CONFRONT THE GOVERNMENT AT SOME TIME IF A NEW SITE
WERE CHOSEN.  THE OPPORTUNITY TO EXCHANGE OR SELL THE PRESENT SITE TO
THE CITY IN CONNECTION WITH THE ACQUISITION OF THE PARK SITE FOR A NEW
POST OFFICE WAS, THEREFORE, A REASONABLE RATHER THAN A CAPRICIOUS
CONSIDERATION. 

ON THE PRESENT RECORD, THE PETITIONER WAS ENTITLED TO A PRELIMINARY
JUDGMENT OF CONDEMNATION.  THE FINDING OF THE DISTRICT COURT ON THE
SECOND TRIAL THAT THE SELECTION OF THE PARK SITE "AMOUNTS IN LAW TO AN
ARBITRARY AND UNNECESSARY ACT" APPEARS, FROM THE CONTEXT, TO HAVE BEEN
A FINDING LARGELY OF THE COMPARATIVE UNDESIRABILITY AND LACK OF
NECESSITY FOR THE SELECTION OF THAT SITE AND NOT TO HAVE BEEN A FINDING
THAT THE SELECTION HAD BEEN MADE WITHOUT ADEQUATE DETERMINING PRINCIPLE
AND WITHOUT REASON.  FN18  THE COMPARATIVE DESIRABILITY AND NECESSITY
FOR THE SITE WERE MATTERS FOR LEGISLATIVE OR ADMINISTRATIVE
DETERMINATION RATHER THAN FOR A JUDICIAL FINDING.  FN19  EVEN IF THE
WORD "ARBITRARY," AS USED BY THE DISTRICT COURT, WAS INTENDED BY IT TO
HAVE THE ORDINARY MEANING WHICH THAT WORD HAS WHEN USED ALONE, WE ARE
UNABLE TO CONCLUDE ON THE RECORD BEFORE US THAT THE SELECTION OF THE
PARK SITE FOR A POST OFFICE IN CAPE GIRARDEAU WAS, AS A MATTER OF LAW,
CAPRICIOUS AND ARBITRARY IN ANY SENSE THAT, UNDER ANY CONSTRUCTION OF
THE ACTS BEFORE US, WOULD INVALIDATE THE SELECTION HERE MADE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS, THEREFORE, IS REVERSED
AND THE CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  "...  IN EVERY CASE IN WHICH THE SECRETARY OF THE TREASURY OR
ANY OTHER OFFICER OF THE GOVERNMENT HAS BEEN, OR HEREAFTER SHALL BE,
AUTHORIZED TO PROCURE REAL ESTATE FOR THE ERECTION OF A PUBLIC BUILDING
OR FOR OTHER PUBLIC USES HE SHALL BE, AND HEREBY IS, AUTHORIZED TO
ACQUIRE THE SAME FOR THE UNITED STATES BY CONDEMNATION, UNDER JUDICIAL
PROCESS, WHENEVER IN HIS OPINION IT IS NECESSARY OR ADVANTAGEOUS TO THE
GOVERNMENT TO DO SO,  ..."  SEC. 1, CONDEMNATION ACT OF AUGUST 1, 1888,
25 STAT. 357, 40 U.S.C. SEC. 257. 

"TO ENABLE THE FEDERAL WORKS ADMINISTRATOR TO PROVIDE SUITABLE
ACCOMMODATIONS  ...  FOR COURTHOUSES, POST OFFICES, IMMIGRATION
STATIONS, CUSTOMHOUSES, MARINE HOSPITALS, QUARANTINE STATIONS, AND
OTHER PUBLIC BUILDINGS OF THE CLASSES UNDER THE CONTROL OF THE FEDERAL
WORKS AGENCY IN THE STATES, TERRITORIES, AND POSSESSIONS OF THE UNITED
STATES, HE IS HEREBY AUTHORIZED AND DIRECTED TO ACQUIRE, BY PURCHASE,
CONDEMNATION, OR OTHERWISE, SUCH SITES AND ADDITIONS TO SITES AS HE MAY
DEEM NECESSARY,  ...  PROVIDED, THAT  ...  INSOFAR AS RELATES TO
BUILDINGS TO BE USED IN WHOLE OR IN PART FOR POST-OFFICE PURPOSES, THE
FEDERAL WORKS ADMINISTRATOR, UNDER REGULATIONS TO BE PRESCRIBED BY HIM,
SHALL ACT JOINTLY WITH THE POSTMASTER GENERAL IN THE SELECTION OF TOWNS
OR CITIES IN WHICH BUILDINGS ARE TO BE CONSTRUCTED AND THE SELECTION OF
SITES THEREIN:..."  40 U.S.C. SEC. 341.  THIS IS CODIFIED FROM SEC. 1
OF THE PUBLIC BUILDINGS ACT OF MAY 25, 1926, 44 STAT. 630-631, AS
MODIFIED BY REORGANIZATION PLAN I, SECS. 301-303, 53 STAT. 1426-1427, 5
U.S.C. FOLLOWING SEC. 133T.  SEE ALSO, 40 U.S.C. SECS. 342-350 AND THE
BALANCE OF THE ORIGINAL ACT. 

THE PETITION LIKEWISE RELIED UPON THE DECLARATION OF TAKING ACT OF
FEBRUARY 26, 1931, 46 STAT. 1421, 40 U.S.C. SECS. 258A-258E; THIRD
DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1937, 50 STAT. 755, 773;
FEDERAL PUBLIC BUILDINGS APPROPRIATION ACT OF 1938, 52 STAT. 818; AND
THE REORGANIZATION ACT OF 1939, 53 STAT. 561, 5 U.S.C. SEC. 133, ET
SEQ., UNDER WHICH REORGANIZATION PLAN I WAS SUBMITTED TO CONGRESS AND
MADE EFFECTIVE JULY 1, 1939, 53 STAT. 813, 5 U.S.C. SEC. 133S. 

FN2  THE RIGHT OF THE RESPONDENT TO CONTEST THE CONDEMNATION TURNS
UPON THE EFFECT OF THE DEEDS, EXECUTED BY CERTAIN OF HER ANCESTORS IN
1807 AND 1820, PURSUANT TO WHICH THIS SITE LONG HAS BEEN PUT TO LOCAL
PUBLIC USE.  HER INTEREST, TURNING LARGELY ON MISSOURI LAW, WAS UPHELD
BY THE CIRCUIT COURT OF APPEALS, FOLLOWING THE FIRST TRIAL, CARMACK V.
UNITED STATES, 135 F.2D 196, AND, AS WE DO NOT HAVE TO QUESTION THAT
INTEREST IN ORDER TO REACH OUR DECISION, WE DO NOT REEXAMINE IT.  BD.
OF REGENTS, NORMAL SCHOOL DIST. NO. 3 V. PAINTER, 102 MO. 464, 14 S.W.
938; MOTT V. MORRIS, 249 MO. 137, 155 S.W. 434; AND 25 STAT. 357, 40
U.S.C. SEC. 258.  THE PROCEEDING TO CONDEMN THE LAND BEING IN REM, THE
JURISDICTION OF THE COURT DOES NOT TURN UPON HER PARTICIPATION IN THE
CASE.  CF. UNITED STATES V. DUNNINGTON, 146 U.S. 338, 352; IN RE
CONDEMNATION SUITS BY UNITED STATES, 234 F. 443, 445. 

FN3  SEE NOTE 1, SUPRA. 

FN4  FOR THE THREE FOREGOING QUOTATIONS, SEE NOTE 1, SUPRA. 

FN5  NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THESE ACTS
TO INDICATE THAT CONGRESS INTENDED TO GIVE ITS AGENTS LESS THAN THE
FULLEST POSSIBLE AUTHORITY OF CONGRESS IN SELECTING CITIES AND SITES. 
SEE H.R. REP. NO. 132, 69TH CONG., 1ST SESS., ESPECIALLY MINORITY VIEWS
AT PP. 6-7, 10, AND H.R. REP. NO. 1223, 69TH CONG., 1ST SESS.; S. REP.
NO. 197, 69TH CONG., 1ST SESS.; 67 CONG. REC. 4023-4028, 8356-8357,
8359, 8494, 8567. 

FN6  "NO PERSON SHALL  ...  BE DEPRIVED OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR SHALL PRIVATE PROPERTY BE
TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION."  U.S. CONST., AMEND.
V. 

FN7  SEE ALSO, HANSON CO. V. UNITED STATES, 261 U.S. 581, 587, FOR
EMPHASIS ON THE ALL-INCLUSIVENESS OF THE GENERAL CONDEMNATION ACT OF
AUGUST 1, 1888. 

FN8  U.S. CONST., ART. I, SEC. 8, CLS. 7 AND 18. 

FN9  U.S. CONST., ART. VI. 

FN10  AN APPEAL IN STOCKTON V. BALTIMORE & N.Y.R. CO., SUPRA, WAS
DISMISSED IN THIS COURT, 140 U.S. 699, AND, IN THE MEANTIME, MR.
JUSTICE BRADLEY'S STATEMENT WAS QUOTED WITH APPROVAL IN CHEROKEE NATION
V. KANSAS RY. CO., 135 U.S. 641, 656.  SEE ALSO, UNITED STATES V.
GETTYSBURG ELECTRIC RY., 160 U.S. 668, 681; LUXTON V. NORTH RIVER
BRIDGE CO., 153 U.S. 525, 529-530. 

WHEN CONGRESS HAS WISHED TO SUBORDINATE ITS SELECTION OF STATE LANDS
TO STATE APPROVAL IT HAS DONE SO BY EXPRESS PROVISION.  IN THE WEEKS
FORESTRY ACT OF MARCH 1, 1911, 36 STAT. 961, 962; 43 STAT. 1215; 45
STAT. 1010; 48 STAT. 955; 16 U.S.C. SEC. 516, AND THE MIGRATORY BIRD
CONSERVATION ACT OF FEBRUARY 18, 1929, 45 STAT. 1222, 1223; 16 U.S.C.
SEC. 715F, THE CONSENT OF THE STATE LEGISLATURE TO THE FEDERAL
ACQUISITION OF LAND IS MADE AN EXPRESS CONDITION OF THE ACCEPTANCE OF
SUCH LAND.  SUCH CONSENT DOES NOT DEPRIVE THE STATE OF CIVIL OR
CRIMINAL JURISDICTION OVER THE LAND.  36 STAT. 963, 16 U.S.C. SEC. 480,
AND 45 STAT. 1224, 16 U.S.C. SEC. 715G.  SEE ALSO, THE UPPER
MISSISSIPPI RIVER WILD LIFE AND FISH REFUGE ACT OF JUNE 7, 1924, 43
STAT. 650, 16 U.S.C. SEC. 724. 

THE ACQUISITION OF FEDERAL LEGISLATIVE JURISDICTION, AS DISTINGUISHED
FROM FEDERAL TITLE TO THE LAND, IS A DIFFERENT MATTER.  IF THE FEDERAL
GOVERNMENT DESIRES EXCLUSIVE LEGISLATIVE JURISDICTION OVER LAND
ACQUIRED BY IT, THE CONSTITUTION INDICATES THAT THE CONSENT OF THE
STATE IN WHICH THE LAND IS LOCATED IS NECESSARY.  ART. I, SEC. 8, CL.
17, PROVIDES THAT "THE CONGRESS SHALL HAVE POWER  ...  TO EXERCISE
EXCLUSIVE LEGISLATION  ...  OVER ALL PLACES PURCHASED BY THE CONSENT OF
THE LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR THE
ERECTION OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL
BUILDINGS; ..."  SEE STOCKTON V. BALTIMORE & N.Y.R. CO., 32 F. 9, 18,
APPEAL DISMISSED, 140 U.S. 699.  SEE ALSO, JOINT RESOLUTION OF
SEPTEMBER 11, 1841, 5 STAT. 468, AND REV. STAT. SEC. 355, WHICH
FORMERLY REQUIRED THE CONSENT OF STATE LEGISLATURES TO FEDERAL
PURCHASES OF CERTAIN SITES AS A CONDITION OF EXPENDING FEDERAL FUNDS TO
PAY FOR THEM.  SINCE FEBRUARY 1, 1940, SUCH CONSENT HAS NOT BEEN
REQUIRED EXCEPT WHERE THE UNITED STATES HAS SOUGHT "EXCLUSIVE OR
PARTIAL" LEGISLATIVE JURISDICTION.  UNLESS AND UNTIL THE UNITED STATES
ACCEPTS SUCH JURISDICTION OVER LANDS ACQUIRED SINCE FEBRUARY 1, 1940,
IT IS PRESUMED CONCLUSIVELY THAT NO SUCH JURISDICTION HAS BEEN
ACCEPTED.  54 STAT. 19; 54 STAT. 1083; 40 U.S.C. SEC. 255.  THE
EXERCISE OF EXCLUSIVE LEGISLATIVE JURISDICTION IS NOT AN ISSUE IN THIS
CASE AND, IN ANY EVENT, MISSOURI HAS CONSENTED TO IT.  "THE CONSENT OF
THE STATE OF MISSOURI IS HEREBY GIVEN IN ACCORDANCE WITH THE
SEVENTEENTH CLAUSE, EIGHTH SECTION OF THE FIRST ARTICLE OF THE
CONSTITUTION OF THE UNITED STATES TO THE ACQUISITION BY THE UNITED
STATES BY PURCHASE OR GRANT OF ANY LAND IN THIS STATE WHICH HAS BEEN OR
MAY HEREAFTER BE ACQUIRED, FOR THE PURPOSE OF ESTABLISHING AND
MAINTAINING POSTOFFICES,  ..."  MO. REV. STAT. ANN. (1939), SEC.
12691. 

FN11  SEE UNITED STATES V. COOPER, 20 D.C. 104, 116, AFFIRMED SUB
NOM., SHOEMAKER V. UNITED STATES, 147 U.S. 282; IN RE RUGHEIMER, 36 F.
369, 371. 

FN12  WHEN, HOWEVER, A SOVEREIGN STATE TRANSFERS ITS OWN PUBLIC
PROPERTY FROM ONE GOVERNMENTAL USE TO ANOTHER, OR WHEN THE FEDERAL
GOVERNMENT TAKES PROPERTY FROM STATE OWNERSHIP MERELY SO AS TO PUT IT
TO A FEDERAL PUBLIC USE FOR WHICH THE STATE ALREADY HOLDS IT IN TRUST,
A LIKE OBLIGATION DOES NOT ARISE TO PAY JUST COMPENSATION FOR IT.  SEE
IN RE CERTAIN LAND IN LAWRENCE, 119 F. 453; STOCKTON V. BALTIMORE &
N.Y. R. CO., 32 F. 9, 19, APPEAL DISMISSED, 140 U.S. 699.    FN13  IN
THE INSTANT CASE, WE DEAL WITH BROAD LANGUAGE EMPLOYED TO AUTHORIZE
OFFICIALS TO EXERCISE THE SOVEREIGN'S POWER OF EMINENT DOMAIN ON BEHALF
OF THE SOVEREIGN ITSELF.  THIS IS A GENERAL AUTHORIZATION WHICH CARRIES
WITH IT THE SOVEREIGN'S FULL POWERS EXCEPT SUCH AS ARE EXCLUDED
EXPRESSLY OR BY NECESSARY IMPLICATION.  A DISTINCTION EXISTS, HOWEVER,
IN THE CASE OF STATUTES WHICH GRANT TO OTHERS, SUCH AS PUBLIC
UTILITIES, A RIGHT TO EXERCISE THE POWER OF EMINENT DOMAIN ON BEHALF OF
THEMSELVES.  THESE ARE, IN THEIR VERY NATURE, GRANTS OF LIMITED
POWERS.  THEY DO NOT INCLUDE SOVEREIGN POWERS GREATER THAN THOSE
EXPRESSED OR NECESSARILY IMPLIED, ESPECIALLY AGAINST OTHERS EXERCISING
EQUAL OR GREATER PUBLIC POWERS.  IN SUCH CASES THE ABSENCE OF AN
EXPRESS GRANT OF SUPERIORITY OVER CONFLICTING PUBLIC USES REFLECTS AN
ABSENCE OF SUCH SUPERIORITY.  SEE UNITED STATES V. JOTHAM BIXBY CO., 55
F.2D 317, 319, AFFIRMED SUB NOM., C.M. PATTEN & CO. V. UNITED STATES,
61 F.2D 970, DECREE VACATED AS MOOT, 289 U.S. 705; IN RE CONDEMNATIONS
FOR IMPROVEMENT OF ROUGE RIVER, 266 F. 105; UNITED STATES V. CITY OF
TIFFIN, 190 F. 279, 281. 

FN14  "ARBITRARY" IS DEFINED BY FUNK & WAGNALLS NEW STANDARD
DICTIONARY OF THE ENGLISH LANGUAGE (1944), AS "1....; WITHOUT ADEQUATE
DETERMINING PRINCIPLE; ..."  AND BY WEBSTER'S NEW INTERNATIONAL
DICTIONARY, 2D ED. (1945), AS "2.  FIXED OR ARRIVED AT THROUGH AN
EXERCISE OF WILL OR BY CAPRICE, WITHOUT CONSIDERATION OR ADJUSTMENT
WITH REFERENCE TO PRINCIPLES, CIRCUMSTANCES, OR SIGNIFICANCE,  ...
DECISIVE BUT UNREASONED; ..." 

"CAPRICIOUS" IS DEFINED BY WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2D
ED. (1945), AS "2....; APT TO CHANGE SUDDENLY; FREAKISH; WHIMSICAL;
HUMORSOME."  CF. FOX FILM CORP. V. TRUMBULL, 7 F.2D 715, 727; PUGET
SOUND POWER & L. CO. V. PUBLIC UTILITY DIST. NO. 1, 123 F.2D 286, 290,
CERT. DENIED, 315 U.S. 814; UNITED STATES V. EIGHTY ACRES OF LAND, 26
F.SUPP.  315, 319. 

SEE ALSO, UNITED STATES V. CERTAIN PARCELS OF LAND, 30 F.SUPP.  372,
379; UNITED STATES V. PARCEL OF LAND, 32 F.SUPP.  718, 721. 

FN15 IT APPARENTLY FOLLOWED REGULATIONS OF THE FEDERAL WORKS AGENCY
AND POST OFFICE DEPARTMENT AS AUTHORIZED BY 5 U.S.C. SECS. 22, 369; 40
U.S.C. SECS. 341, 347.  AMONG ITS PRINCIPAL STEPS WERE THE FOLLOWING:
JUNE 12, 1940, APPROVAL OF THE GENERAL PROJECT FOR CAPE GIRARDEAU BY
FEDERAL WORKS ADMINISTRATOR AND ACTING POSTMASTER GENERAL BASED UPON
THE RECOMMENDATION OF THE COMMISSIONER OF PUBLIC BUILDINGS AND THE
FOURTH ASSISTANT POSTMASTER GENERAL; JULY 23-26, 29-31, 1940, POST
OFFICE INSPECTOR AND SITE AGENT VISITED CAPE GIRARDEAU; AUGUST 20,
1940, HE SUBMITTED HIS RECOMMENDATIONS, SHOWING THAT HE INSPECTED 22
PROPOSALS, ELIMINATED ALL BUT 6 ON GENERAL GROUNDS, CAREFULLY
CONSIDERED THE REMAINDER AND SUBMITTED FULL REPORT ON 3.  HIS FIRST
CHOICE WAS TO ENLARGE THE PRESENT POST OFFICE SITE; HIS SECOND, TO
ACQUIRE THE SITE HERE IN CONTROVERSY; HIS THIRD, TO ACQUIRE A SITE
BETWEEN THE TWO.  FURTHER STUDIES WERE MADE IN CAPE GIRARDEAU OR IN
WASHINGTON BY THE ASSOCIATE ARCHITECT FOR THE FEDERAL WORKS AGENCY, THE
FISCAL MANAGER OF THE PUBLIC BUILDINGS ADMINISTRATION AND THE
SUPERINTENDENT OF THE DIVISION OF POST OFFICE QUARTERS IN THE POST
OFFICE DEPARTMENT.  ALL WISHING TO BE HEARD WERE HEARD.  FEBRUARY 11,
1941, THE CITY COUNCIL PASSED AN ORDINANCE PROPOSING AN EXCHANGE OF THE
PARK SITE FOR THE PRESENT POST OFFICE SITE AND SUBMITTING THIS PROPOSAL
TO A SPECIAL ELECTION.  MARCH 4, 1941, A MAJORITY OF THOSE VOTING IN 8
OF THE 10 WARDS APPROVED THE EXCHANGE, THE CITY-WIDE VOTE BEING 1612 TO
1344.  MAY 26, 1941, THE ACTING COMMISSIONER OF PUBLIC BUILDINGS
NOTIFIED THE MAYOR OF THE GOVERNMENT'S ACCEPTANCE OF THE PROPOSED
EXCHANGE.  SEPTEMBER 25, 1941, THE ACTING ADMINISTRATOR OF THE FEDERAL
WORKS AGENCY ADVISED THE ATTORNEY GENERAL THAT, UNDER AUTHORITY OF THE
PUBLIC BUILDINGS ACT, THE AGENCY HAD CONTRACTED FOR THE EXCHANGE. 
AFTER REFERRING TO HIS FAILURE TO SECURE TITLE BY VOLUNTARY CONVEYANCE
FROM THE CITY IN SPITE OF THE WILLINGNESS OF THE CITY OFFICIALS TO MAKE
THE EXCHANGE IF THEY HAD LEGAL AUTHORITY TO DO SO, HE ASKED THE
ATTORNEY GENERAL TO FILE THIS CONDEMNATION PROCEEDING.  IT WAS DONE
NOVEMBER 22, 1941.  IN ACCORDANCE WITH THE OPINION OF THE CIRCUIT COURT
OF APPEALS AFTER THE FIRST TRIAL, THE GOVERNMENT, ON JUNE 10, 1943,
SECURED EVIDENCE OF A FORMAL JOINT ACTION, SIGNED PERSONALLY BY THE
FEDERAL WORKS ADMINISTRATOR AND THE POSTMASTER GENERAL, EXPRESSLY
SELECTING THE SITE IN SUIT.  THIS WAS INCLUDED IN THE RECORD OF THE
SECOND TRIAL.  THE ACTIONS OF JUNE 12, 1940, AND JUNE 10, 1943, REFER
TO THE PROJECT AS ONE FOR A POST OFFICE AND COURTHOUSE, WHEREAS THE
PETITION FOR CONDEMNATION REFERS TO IT AS ONE FOR A POST OFFICE AND
CUSTOMHOUSE.  THIS VARIATION WAS NOT PRESSED IN THE LITIGATION AND IS
NOT MATERIAL TO THE MAIN ISSUE OF STATUTORY CONSTRUCTION. 

THE FOREGOING NARRATION OF THE STEPS TAKEN IN THIS INSTANCE IS NOT
INTENDED AS AN INDICATION THAT ALL OR ANY OF THEM ARE ESSENTIAL TO THE
EXERCISE OF THE STATUTORY AUTHORITY TO SELECT SITES IN OTHER CASES. 
THEY ARE SET FORTH TO HELP DEMONSTRATE THAT, IN THE FACE OF THEM, THE
SELECTION HERE CANNOT BE CLASSED AS "CAPRICIOUS AND ARBITRARY," UNDER
ANY APPROPRIATE DEFINITION OF THOSE WORDS. 

FN16  "FOR FIRST CHOICE I RECOMMEND THAT THE PRESENT GOVERNMENTOWNED
SITE BE RETAINED AND THAT THE ADJOINING PROPERTY, SITE 2 OFFERED BY H.
BERMERMANN BE PURCHASED FOR $15,000, AND THAT A COUNTER OFFER BE MADE
TO THE OWNER OF SITE 3, ELLA M. DRUM TO PURCHASE THIS SITE FOR $600. 

"THIS RECOMMENDATION IS MADE BECAUSE IT IS BELIEVED THAT THE PRESENT
LOCATION IS THE MOST OUTSTANDING SITE IN THIS CITY, AND BECAUSE OF THE
NUMEROUS LIMITATIONS ON ALL OF THE OTHER COMPETING SITES WHICH WOULD
PREVENT AN ADVANTAGEOUS OR DESIRABLE TRANSACTION. 

"FOR SECOND CHOICE I HAVE SELECTED SITE NO. 1, THE CITY-OWNED PARK,
WHICH COULD BE DEVELOPED INTO AN ATTRACTIVE SETTING FOR THE NEW
BUILDING, AND WHICH COULD NO DOUBT BE SECURED IN AN EXCHANGE RESULTING
IN MUTUAL BENEFIT TO THE CITY AND GOVERNMENT.  THE BID SUBMITTED BY THE
CITY IS NOT INTENDED TO BE A FINAL OFFER, AND IT IS EXPECTED THAT AFTER
A REVIEW OF THE FACTS BY THE SITE COMMITTEE A COUNTER-OFFER COULD BE
MADE WITH RESPECT TO A DEFINITE AREA OF ABOUT 175' X 215' WITHIN THE
PARK GROUNDS AND WITH RESPECT TO IMPROVEMENTS IN SURROUNDING
APPROACHES, REMOVAL OF TREES AND FOUNTAIN, AND DEMOLITION OF PRESENT
CITY BUILDING.  THE MAYOR AND CITY COUNCIL VERBALLY AGREED TO FAVOR ANY
REASONABLE COUNTER-OFFER TO BE MADE BY THE GOVERNMENT.  IT IS MY
OPINION THAT THE GOVERNMENT-OWNED SITE IS VALUED AT APPROXIMATELY $225
PER FRONT FOOT, WHEREAS THE PARK SITE HAS A VALUE OF ABOUT $100 PER
FRONT FOOT, AND THIS MUST BE TAKEN INTO CONSIDERATION IN SUBMITTING A
COUNTER-OFFER.  THE QUESTION OF THE CITY COUNCIL'S AUTHORITY TO MAKE AN
EXCHANGE OF THIS PROPERTY IS IN DISPUTE, BUT THIS COULD NO DOUBT BE
SETTLED BY FRIENDLY CONDEMNATION PROCEEDINGS, AS THE CITY OFFICIALS ARE
WILLING AND DESIROUS FOR THE TRADE." 

FN17  "...  THE CITY PARK PROPERTY, IS ACTIVELY FAVORED BY THE CITY
COUNCIL, AND ALMOST UNANIMOUSLY FAVORED BY THE BUSINESS MEN ON MAIN
STREET.... 

"BECAUSE OF THE DIVERGENCE OF OPINION, THE CHAMBER OF COMMERCE IN A
RECENT MEETING DECIDED NOT TO MAKE ANY OFFICIAL COMMENT AS TO A CERTAIN
LOCATION.... 

"THE POSTMASTER, WHO HAS NO FINANCIAL OR PERSONAL INTEREST IN ANY OF
THE LOCATIONS, BUT WHO IS CONSCIENTIOUSLY INTERESTED IN CIVIC
DEVELOPMENT, REGARDS THE GOVERNMENT-OWNED SITE AS AN OUTSTANDING
LOCATION BUT RECOMMENDS THE CITY PARK AS FIRST CHOICE BECAUSE THIS
TRADE WOULD ALLOW THE CITY TO RETAIN A GOOD IMPROVEMENT AND ALLOW THE
FEDERAL GOVERNMENT TO SECURE A SITE WITH ATTRACTIVE SURROUNDINGS." 

FN18 THE DISTRICT COURT SAID: 

"THE RIGHT OF PLAINTIFF TO CONDEMN THE LAND MUST STAND OR FALL ON THE
DETERMINATION BY THIS COURT OF THE QUESTION, DID THE ACTING
ADMINISTRATOR OF FEDERAL WORKS AGENCY AND THE POSTMASTER GENERAL, UNDER
THE CIRCUMSTANCES HERE PRESENTED, ACT ARBITRARILY AND CAPRICIOUSLY IN
SELECTING THE SITE - WAS THE ACT NECESSARY?  THE TERM 'ARBITRARILY AND
CAPRICIOUSLY' HAS BEEN DEFINED TO MEAN AN ACT DONE 'WITHOUT ADEQUATE
DETERMINING PRINCIPLE; NOT FOUNDED IN THE NATURE OF THINGS; NOT DONE OR
ACTING ACCORDING TO REASON OR JUDGMENT'; AN UNNECESSARY ACT.... 

     .         .         .         .         . 

"THAT THIS ACTION WAS TAKEN BY THE JOINT COMMITTEE, WITH INFORMATION
IN THEIR POSSESSION WITH RESPECT TO AVAILABILITY OF OTHER SITES WHICH
SHOWS UNQUESTIONABLY THAT THE ACTION OF THE PLAINTIFF IS UNNECESSARY
AND THE SITE SELECTED IS NOT NOW, NOR WAS IT WHEN SELECTED, THE MOST
DESIRABLE AND AVAILABLE."  UNITED STATES V. CERTAIN LAND, ETC., 55
F.SUPP.  555, 557, 563. 

FN19  UNITED STATES EX REL. T.V.A. V. WELCH, 327 U.S. 546; RINDGE CO.
V. LOS ANGELES, 262 U.S. 700, 708-710; JOSLIN CO. V. PROVIDENCE, 262
U.S. 668, 678; BRAGG V. WEAVER, 251 U.S. 57, 58; SEARS V. CITY OF
AKRON, 246 U.S. 242, 251; ADIRONDACK RY. V. NEW YORK STATE, 176 U.S.
335, 349; SHOEMAKER V. UNITED STATES, 147 U.S. 282, 298; BOOM CO. V.
PATTERSON, 98 U.S. 403, 406.  SEE ALSO: "THE FEDERAL STATUTE  ...  DOES
NOT REQUIRE PROOF OF 'NECESSITY,' BUT MAKES THAT QUESTION DEPEND SOLELY
ON THE 'OPINION' OF THE FEDERAL OFFICER.  IT IS CONTROLLING HERE." 
UNITED STATES V. MONTANA, 134 F.2D 194, 197, CERT. DENIED, 319 U.S.
772. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT AND SUBSTANTIALLY AGREES
WITH THE OPINION OF THE COURT.  BUT HE RESERVES JUDGMENT AS TO THE
CIRCUMSTANCES UNDER WHICH AUTHORITY TO CONDEMN LAND OWNED BY A CITY OR
A STATE SHOULD BE INFERRED FROM A GENERAL CONDEMNATION STATUTE, IF THE
LOCAL GOVERNMENT CHALLENGED THE TAKING. 
..END :










UNITED STATES V. TILLAMOOKS, 329 U.S. 40 


NO. 26.  ARGUED JANUARY 31, FEBRUARY 1, 1946.  - REARGUED OCTOBER 25,
1946.  - DECIDED NOVEMBER 25, 1946.  - 103 CT. CL. 494, 59 F.SUPP. 
934, AFFIRMED. 


UNDER THE ACT OF AUGUST 26, 1935, 49 STAT. 801, CONFERRING
JURISDICTION ON THE COURT OF CLAIMS TO ADJUDICATE AND RENDER FINAL
JUDGMENT ON "ANY AND ALL LEGAL AND EQUITABLE CLAIMS ARISING UNDER OR
GROWING OUT OF THE ORIGINAL INDIAN TITLE, CLAIM, OR RIGHTS IN, TO, OR
UPON THE WHOLE OR ANY PART OF THE LANDS" PREVIOUSLY OCCUPIED BY CERTAIN
INDIAN TRIBES AND BANDS IN OREGON, HELD, THAT TRIBES WHICH SUCCESSFULLY
IDENTIFY THEMSELVES AS ENTITLED TO SUE UNDER THE ACT, PROVE THEIR
ORIGINAL INDIAN TITLE TO DESIGNATED LANDS, AND DEMONSTRATE THAT THEIR
INTEREST IN SUCH LANDS WAS TAKEN WITHOUT THEIR CONSENT AND WITHOUT
COMPENSATION, ARE ENTITLED TO RECOVER COMPENSATION THEREFOR FOR WITHOUT
SHOWING THAT THE ORIGINAL INDIAN TITLE EVER WAS FORMALLY RECOGNIZED BY
THE UNITED STATES.  PP. 45-54. 

UNITED STATES V. ALCEA BAND OF TILLAMOOKS ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTAIN INDIAN TRIBES SUED THE UNITED STATES IN THE COURT OF CLAIMS
UNDER THE ACT OF AUGUST 26, 1935, 49 STAT. 801, AND RECOVERED JUDGMENT
FOR THE TAKING WITHOUT THEIR CONSENT OF THEIR INTEREST UNDER ORIGINAL
INDIAN TITLE IN CERTAIN LANDS PREVIOUSLY OCCUPIED BY THEM.  103 CT. CL.
494, 59 F.SUPP.  934.  THIS COURT GRANTED CERTIORARI.  326 U.S. 707. 
AFFIRMED, P. 54. 

MR. CHIEF JUSTICE VINSON ANNOUNCED THE JUDGMENT OF THE COURT AND
DELIVERED AN OPINION, IN WHICH MR. JUSTICE FRANKFURTER, MR. JUSTICE
DOUGLAS, AND MR. JUSTICE MURPHY JOINED. 

ELEVEN INDIAN TRIBES HAVE SUED THE UNITED STATES IN THE COURT OF
CLAIMS UNDER THE ACT OF AUGUST 26, 1935,  FN1  WHICH GIVES THAT COURT
JURISDICTION TO HEAR AND ADJUDICATE CASES INVOLVING "ANY AND ALL LEGAL
AND EQUITABLE CLAIMS ARISING UNDER OR GROWING OUT OF THE ORIGINAL
INDIAN TITLE, CLAIM, OR RIGHTS IN  ...  THE LANDS  ...  OCCUPIED BY THE
INDIAN TRIBES AND BANDS DESCRIBED IN" CERTAIN UNRATIFIED TREATIES
NEGOTIATED WITH INDIAN TRIBES IN THE TERRITORY OF OREGON. 

FOUR OF THE TRIBES,  FN2  THE TILLAMOOKS, COQUILLES, TOO-TOO-TO-NEYS
AND CHETCOS, SUCCESSFULLY IDENTIFIED THEMSELVES AS ENTITLED TO SUE
UNDER THE ACT, PROVED THEIR ORIGINAL INDIAN TITLE  FN3 TO DESIGNATED
LANDS, AND DEMONSTRATED AN INVOLUNTARY AND UNCOMPENSATED TAKING OF SUCH
LANDS.  THE COURT OF CLAIMS THEREUPON HELD THAT ORIGINAL INDIAN TITLE
WAS AN INTEREST THE TAKING OF WHICH WITHOUT THE CONSENT OF THE INDIAN
TRIBES ENTITLED THEM TO COMPENSATION.  IN ANSWER TO GOVERNMENT
CONTENTIONS THAT ORIGINAL INDIAN TITLE, IN THE ABSENCE OF SOME FORM OF
OFFICIAL "RECOGNITION," COULD BE APPROPRIATED WITHOUT LIABILITY UPON
THE PART OF THE SOVEREIGN, THE ACT OF 1848,  FN4 ESTABLISHING THE
TERRITORY OF OREGON, WAS CITED BY THE COURT OF CLAIMS AS AFFORDING ANY
RECOGNITION REQUIRED TO SUPPORT THE CLAIM FOR COMPENSATION.  THE ISSUES
DECIDED, NOT PREVIOUSLY PASSED UPON BY THIS COURT AND BEING OF
IMPORTANCE TO THE ADMINISTRATION OF INDIAN AFFAIRS, PROMPTED THIS COURT
TO GRANT CERTIORARI.  THE CASE WAS ARGUED DURING THE 1945 TERM AND ON
APRIL 1, 1946, WAS RESTORED TO THE DOCKET FOR REARGUMENT BEFORE A FULL
BENCH. 

THE EVENTS GIVING RISE TO THE CLAIMS HERE OCCURRED AS PART OF THE
OPENING AND DEVELOPMENT OF THE TERRITORY OF OREGON.  AFTER CREATING A
GOVERNMENT FOR THAT TERRITORY BY THE ACT OF 1848,  FN5 CONGRESS IN 1850
AUTHORIZED THE NEGOTIATION OF TREATIES WITH INDIAN TRIBES IN THE AREA. 
UNDER THE LATTER ACT,  FN6  ANSON DART, LATER SUCCEEDED BY GENERAL JOEL
PALMER, WAS APPOINTED SUPERINTENDENT OF INDIAN AFFAIRS FOR THE OREGON
REGION AND WAS INSTRUCTED TO NEGOTIATE TREATIES FOR THE EXTINGUISHMENT
OF INDIAN CLAIMS TO LANDS IN THAT DISTRICT.  ON AUGUST 11, 1855, PALMER
AND RESPONDENT TRIBES CONCLUDED A TREATY PROVIDING FOR THE CESSION OF
INDIAN LANDS IN RETURN FOR CERTAIN MONEY PAYMENTS AND THE CREATION OF A
RESERVATION.  THE TREATY WAS TO BE OPERATIVE ONLY UPON RATIFICATION. 
IT WAS NOT SUBMITTED TO THE SENATE UNTIL FEBRUARY, 1857, AND WAS NEVER
RATIFIED. 

PENDING EXPECTED RATIFICATION, AND FOLLOWING RECOMMENDATIONS FROM
PALMER, THE PRESIDENT ON NOVEMBER 9, 1855, CREATED A RESERVATION,
SUBJECT TO FUTURE DIMINUTION AND ALMOST IDENTICAL WITH THAT PROVIDED
FOR IN THE TREATY.  A LARGE PART OF THIS RESERVATION, CALLED THE COAST
OR SILETZ RESERVATION, CONSISTED OF LANDS TO WHICH THE TILLAMOOK TRIBE
HELD ORIGINAL INDIAN TITLE.  ALMOST IMMEDIATELY THE TILLAMOOKS WERE
CONFINED TO THAT PORTION OF THEIR LAND WITHIN THE RESERVATION, AND THE
OTHER THREE RESPONDENT TRIBES, AS WELL AS OTHER TRIBES, WERE MOVED FROM
THEIR ORIGINAL POSSESSIONS TO THE RESERVATION.  IN 1865 AN EXECUTIVE
ORDER REDUCED THE SIZE OF THE RESERVATION; IN 1875 CONGRESS BY STATUTE
APPROVED THE EXECUTIVE ORDERS OF 1855 AND 1865, AND IN ORDER TO OPEN
MORE LAND FOR PUBLIC SETTLEMENT, REMOVED ADDITIONAL LAND FROM THE
RESERVATION.  BY AN ACT OF 1894, FN7  CONGRESS OFFICIALLY ACCEPTED AND
APPROVED THE RESERVATION AS IT THEN EXISTED, AND THENCEFORWARD DID NOT
TAKE RESERVATION LANDS WITHOUT COMPENSATION. 

THE CLAIMS OF RESPONDENT TRIBES ARE FOR THE WRONGFUL TAKING WHICH
OCCURRED WHEN THEY WERE DEPRIVED OF THEIR ORIGINAL POSSESSIONS BY THE
EXECUTIVE ORDER OF NOVEMBER 9, 1855.  EVEN AS TO THE TILLAMOOKS, THE
COURT OF CLAIMS FOUND THE TAKING COMPLETE AS OF NOVEMBER 9, 1855, SINCE
THIS TRIBE WAS FORCED TO SHARE ITS FORMER LANDS WITH OTHER INDIANS, AND
SINCE THE RESERVATION WAS, IN ANY EVENT, ONLY A CONDITIONAL ONE,
SUBJECT TO BEING OPENED FOR PUBLIC SETTLEMENT AT THE WILL OF THE
PRESIDENT.  PETITIONER DISPUTES NEITHER THIS FINDING NOR THE PROOF OF
ORIGINAL INDIAN TITLE AS OF 1855. 

OTHER THAN THE BENEFITS FLOWING FROM THE ACT OF 1894,  FN8  NONE OF
THE FOUR RESPONDENT TRIBES HAS RECEIVED ANY COMPENSATION FOR THE LOSS
OF ITS LANDS.  UNTIL THE PRESENT JURISDICTIONAL ACT OF 1935, THESE
TRIBES, LACKING CONSENT OF THE UNITED STATES TO BE SUED, WERE FORBIDDEN
ACCESS TO THE COURTS.  THEY ALONE OF THE TRIBES WITH WHOM DART AND
PALMER NEGOTIATED SOME TWENTY-ODD TREATIES BETWEEN 1850 AND 1855 HAVE
YET TO RECEIVE RECOGNITION FOR THE LOSS OF LANDS HELD BY ORIGINAL
INDIAN TITLE.  FN9 

UNTIL NOW THIS COURT HAS HAD NO OPPORTUNITY OR OCCASION TO PASS UPON
THE PRECISE ISSUE PRESENTED HERE.  IN ONLY ONE ACT PRIOR TO 1935 HAS
CONGRESS AUTHORIZED JUDICIAL DETERMINATION OF THE RIGHT TO RECOVER FOR
A TAKING OF NOTHING MORE THAN ORIGINAL INDIAN TITLE; AND NO CASE UNDER
THAT ACT, FN10  PASSED IN 1929, REACHED THIS COURT.  FN11  IN 1930
FN12  CONGRESS AGAIN AUTHORIZED ADJUDICATION OF INDIAN CLAIMS ARISING
OUT OF ORIGINAL INDIAN TITLE, BUT EXPRESSLY DIRECTED AN AWARD OF
DAMAGES IF A TAKING OF LANDS HELD BY IMMEMORIAL POSSESSION WERE SHOWN. 
THIS ACT THUS ELIMINATED ANY JUDICIAL DETERMINATION OF A RIGHT TO
RECOVER, ONCE ORIGINAL INDIAN TITLE WAS ESTABLISHED. 

PRIOR TO 1929, ADJUDICATIONS OF INDIAN CLAIMS AGAINST THE UNITED
STATES WERE LIMITED TO ISSUES ARISING OUT OF TREATIES, STATUTES, OR
OTHER EVENTS AND TRANSACTIONS CAREFULLY DESIGNATED BY CONGRESS.  THIS
COURT HAS ALWAYS STRICTLY CONSTRUED SUCH JURISDICTIONAL ACTS AND HAS
NOT OFFERED JUDICIAL OPINION ON THE JUSTNESS OF THE HANDLING OF INDIAN
LANDS, EXCEPT IN SO FAR AS CONGRESS IN SPECIFIC LANGUAGE HAS PERMITTED
ITS JUSTICIABLE RECOGNITION. 

THE LANGUAGE OF THE 1935 ACT IS SPECIFIC, AND ITS CONSEQUENCES ARE
CLEAR.  BY THIS ACT CONGRESS NEITHER ADMITTED NOR DENIED LIABILITY. 
THE ACT REMOVES THE IMPEDIMENTS OF SOVEREIGN IMMUNITY AND LAPSE OF TIME
AND PROVIDES FOR JUDICIAL DETERMINATION OF THE DESIGNATED CLAIMS.  NO
NEW RIGHT OR CAUSE OF ACTION IS CREATED.  A MERELY MORAL CLAIM IS NOT
MADE A LEGAL ONE.  THE CASES ARE TO BE HEARD ON THEIR MERITS AND
DECIDED ACCORDING TO LEGAL PRINCIPLES PERTINENT TO THE ISSUES WHICH
MIGHT BE PRESENTED UNDER THE ACT.  FN13  ACCORDINGLY THE 1935 STATUTE
PERMITS JUDICIAL DETERMINATION OF THE LEGAL AND EQUITABLE CLAIMS
GROWING OUT OF ORIGINAL INDIAN TITLE.  THAT WHICH WAS WITHIN THE POWER
OF CONGRESS TO WITHHOLD FROM JUDICIAL SCRUTINY HAS NOW BEEN SUBMITTED
TO THE COURTS.  IF, AS HAS MANY TIMES BEEN SAID,  FN14  THE MANNER OF
EXTINGUISHING INDIAN TITLE IS USUALLY A POLITICAL QUESTION AND PRESENTS
A NON-JUSTICIABLE ISSUE, CONGRESS HAS EXPRESSLY AND EFFECTIVELY
DIRECTED OTHERWISE BY SEEKING IN THE 1935 ACT JUDICIAL DISPOSITION OF
CLAIMS ARISING FROM ORIGINAL INDIAN TITLE.  "BY CONSENTING TO BE SUED,
AND SUBMITTING THE DECISION TO JUDICIAL ACTION, THEY HAVE CONSIDERED IT
AS A PURELY JUDICIAL QUESTION, WHICH WE ARE NOW BOUND TO DECIDE, AS
BETWEEN MAN AND MAN  ..."  UNITED STATES V. ARREDONDO, 6 PET. 691,
711(1832). 

IT HAS LONG BEEN HELD THAT BY VIRTUE OF DISCOVERY THE TITLE TO LANDS
OCCUPIED BY INDIAN TRIBES VESTED IN THE SOVEREIGN.  FN15  THIS TITLE
WAS DEEMED SUBJECT TO A RIGHT OF OCCUPANCY IN FAVOR OF INDIAN TRIBES,
BECAUSE OF THEIR ORIGINAL AND PREVIOUS POSSESSION.  IT IS WITH THE
CONTENT OF THIS RIGHT OF OCCUPANCY, THIS ORIGINAL INDIAN TITLE, THAT WE
ARE CONCERNED HERE. 

AS AGAINST ANY BUT THE SOVEREIGN, ORIGINAL INDIAN TITLE WAS ACCORDED
THE PROTECTION OF COMPLETE OWNERSHIP; FN16  BUT IT WAS VULNERABLE TO
AFFIRMATIVE ACTION BY THE SOVEREIGN, WHICH POSSESSED EXCLUSIVE POWER TO
EXTINGUISH THE RIGHT OF OCCUPANCY AT WILL.  TERMINATION OF THE RIGHT BY
SOVEREIGN ACTION WAS COMPLETE AND LEFT THE LAND FREE AND CLEAR OF
INDIAN CLAIMS.  THIRD PARTIES COULD NOT QUESTION THE JUSTNESS OR
FAIRNESS OF THE METHODS USED TO EXTINGUISH THE RIGHT OF OCCUPANCY. 
FN17  NOR COULD THE INDIANS THEMSELVES PREVENT A TAKING OF TRIBAL LANDS
OR FORESTALL A TERMINATION OF THEIR TITLE.  HOWEVER, IT IS NOW FOR THE
FIRST TIME ASKED WHETHER THE INDIANS HAVE A CAUSE OF ACTION FOR
COMPENSATION ARISING OUT OF AN INVOLUNTARY TAKING OF LANDS HELD BY
ORIGINAL INDIAN TITLE. 

WE CANNOT BUT AFFIRM THE DECISION OF THE COURT OF CLAIMS.  ADMITTING
THE UNDOUBTED POWER OF CONGRESS TO EXTINGUISH ORIGINAL INDIAN TITLE
COMPELS NO CONCLUSION THAT COMPENSATION NEED NOT BE PAID.  IN SPEAKING
OF THE ORIGINAL CLAIMS OF THE INDIANS TO THEIR LANDS, MARSHALL HAD THIS
TO SAY: "IT IS DIFFICULT TO COMPREHEND THE PROPOSITION  ...  THAT THE
DISCOVERY  ...  SHOULD GIVE THE DISCOVERER RIGHTS IN THE COUNTRY
DISCOVERED, WHICH ANNULLED THE PRE-EXISTING RIGHT OF ITS ANCIENT
POSSESSORS....  IT GAVE THE EXCLUSIVE RIGHT TO PURCHASE, BUT DID NOT
FOUND THAT RIGHT ON A DENIAL OF THE RIGHT OF THE POSSESSOR TO SELL....
THE KING PURCHASED THEIR LANDS,  ...  BUT NEVER COERCED A SURRENDER OF
THEM."  WORCESTER V. GEORGIA, 6 PET. 515, 543, 544, 547(1832).  IN OUR
OPINION, TAKING ORIGINAL INDIAN TITLE WITHOUT COMPENSATION AND WITHOUT
CONSENT DOES NOT SATISFY THE "HIGH STANDARDS FOR FAIR DEALING" REQUIRED
OF THE UNITED STATES IN CONTROLLING INDIAN AFFAIRS.  UNITED STATES V.
SANTA FE PACIFIC R. CO., 314 U.S. 339, 356(1941).  THE INDIANS HAVE
MORE THAN A MERELY MORAL CLAIM FOR COMPENSATION.  FN18 

A CONTRARY DECISION WOULD IGNORE THE PLAIN IMPORT OF TRADITIONAL
METHODS OF EXTINGUISHING ORIGINAL INDIAN TITLE.  THE EARLY ACQUISITION
OF INDIAN LANDS, IN THE MAIN, PROGRESSED BY A PROCESS OF NEGOTIATION
AND TREATY.  THE FIRST TREATIES REVEAL THE STRIKING DEFERENCE PAID TO
INDIAN CLAIMS, AS THE ANALYSIS IN WORCESTER V. GEORGIA, SUPRA, CLEARLY
DETAILS.  IT WAS USUAL POLICY NOT TO COERCE THE SURRENDER OF LANDS
WITHOUT CONSENT AND WITHOUT COMPENSATION.  FN19  THE GREAT DRIVE TO
OPEN WESTERN LANDS IN THE 19TH CENTURY, HOWEVER PRODUCTIVE OF SHARP
DEALING, DID NOT WHOLLY SUBVERT THE SETTLED PRACTICE OF NEGOTIATED
EXTINGUISHMENT OF ORIGINAL INDIAN TITLE.  FN20  IN 1896, THIS COURT
NOTED THAT, "...  NEARLY EVERY TRIBE AND BAND OF INDIANS WITHIN THE
TERRITORIAL LIMITS OF THE UNITED STATES WAS UNDER SOME TREATY RELATIONS
WITH THE GOVERNMENT."  MARKS V. UNITED STATES, 161 U.S. 297,
302(1896).  SOMETHING MORE THAN SOVEREIGN GRACE PROMPTED THE OBVIOUS
REGARD GIVEN TO ORIGINAL INDIAN TITLE. 

LONG BEFORE THE END OF THE TREATY SYSTEM OF INDIAN GOVERNMENT AND THE
ADVENT OF LEGISLATIVE CONTROL IN 1871,  FN21  CONGRESS HAD EVINCED ITS
OWN ATTITUDE TOWARD INDIAN RELATIONS.  THE ORDINANCE OF 1787 DECLARED,
"THE UTMOST GOOD FAITH SHALL ALWAYS BE OBSERVED TOWARDS THE INDIANS;
THEIR LAND AND PROPERTY SHALL NEVER BE TAKEN FROM THEM WITHOUT THEIR
CONSENT  ..."  1 STAT. 50, 52.  WHEN IN 1848 THE TERRITORIAL GOVERNMENT
OF OREGON WAS CREATED, SEC. 14 OF THAT ACT  FN22 SECURED TO THE
INHABITANTS OF THE NEW TERRITORY ALL THE RIGHTS AND PRIVILEGES
GUARANTEED BY THE ORDINANCE OF 1787.  NOR DID CONGRESSIONAL REGARD FOR
INDIAN LANDS CHANGE IN 1871.  IN PROVIDING FOR THE SETTLEMENT OF DAKOTA
TERRITORY, CONGRESS IN 1872 DIRECTED THE EXTINGUISHMENT OF THE
INTERESTS OF INDIANS IN CERTAIN LANDS AND THE DETERMINATION OF WHAT
"COMPENSATION OUGHT, IN JUSTICE AND EQUITY, TO BE MADE TO SAID BANDS
...  FOR THE EXTINGUISHMENT OF WHATEVER TITLE THEY MAY HAVE TO SAID
LANDS."  17 STAT. 281; BUTTZ V. NORTHERN PACIFIC RAILROAD, 119 U.S. 55,
59(1886).  THE LATEST INDICIA OF CONGRESSIONAL REGARD FOR INDIAN CLAIMS
IS THE INDIAN CLAIMS COMMISSION ACT, 60 STAT. 1049, 1050, SEC. 2(5), IN
WHICH NOT ONLY ARE CLAIMS SIMILAR TO THOSE OF THE CASE AT BAR TO BE
HEARD, BUT "CLAIMS BASED UPON FAIR AND HONORABLE DEALINGS THAT ARE NOT
RECOGNIZED BY ANY EXISTING RULE OF LAW OR EQUITY" MAY BE SUBMITTED TO
THE COMMISSION WITH RIGHT OF JUDICIAL REVIEW. 

CONGRESSIONAL AND EXECUTIVE ACTION CONSISTENT WITH THE PREVAILING
IDEA OF NON-COERCIVE, COMPENSATED EXTINGUISHMENT OF INDIAN TITLE IS
CLEAR IN THE FACTS OF THE PRESENT CASE.  THE ACT OF 1848 DECLARED A
POLICY OF EXTINGUISHING INDIAN CLAIMS IN OREGON ONLY BY TREATY.  THE
STATUTE OF 1850 PUT IN MOTION THE TREATY-MAKING MACHINERY.  RESPONDENT
TRIBES WERE AMONG THOSE WITH WHOM TREATIES WERE NEGOTIATED.  IN MANY
CASES, EXPECTED RATIFICATION DID NOT FOLLOW.  IN THE CASE OF RESPONDENT
TRIBES ALONE HAVE NO STEPS BEEN TAKEN TO MAKE AMENDS FOR THE TAKING OF
INDIAN LANDS PENDING TREATY RATIFICATION.  TO DETERMINE NOW THAT
COMPENSATION MUST BE PAID IS ONLY A FAIR RESULT.    PETITIONER WOULD
ADMIT LIABILITY ONLY IF, IN ADDITION TO CLEAR PROOF OF ORIGINAL INDIAN
TITLE, SOME ACT OF OFFICIAL "RECOGNITION" WERE SHOWN.  ORIGINAL INDIAN
TITLE WOULD NOT ATTAIN THE STATUS OF A COMPENSABLE INTEREST UNTIL SOME
DEFINITE ACT OF SOVEREIGN ACKNOWLEDGMENT FOLLOWED.  APPARENTLY
PETITIONER HAS SEIZED UPON LANGUAGE OF THE COURT OF CLAIMS IN DUWAMISH
INDIANS V. UNITED STATES, 79 CT. CL. 530(1934), AND FROM IT HAS
FASHIONED A FULL-BLOWN CONCEPT OF "RECOGNIZED INDIAN TITLE."  THE
JURISDICTIONAL ACT IN THAT CASE AUTHORIZED SUITS ON "ALL CLAIMS OF
WHATSOEVER NATURE, BOTH LEGAL AND EQUITABLE."  FN23  CLAIMS BASED
SOLELY ON ORIGINAL INDIAN TITLE WERE HELD TO BE OUTSIDE THE LIMITS OF
THE ACT; AND UNLESS A TREATY OR ACT OF CONGRESS RECOGNIZING THE
INDIANS' TITLE BY RIGHT OF OCCUPANCY WERE SHOWN, RECOVERY COULD NOT BE
HAD.  FN24  A MORE SPECIFIC JURISDICTIONAL ACT WAS DEEMED NECESSARY TO
AUTHORIZE A SUIT BASED UPON ORIGINAL INDIAN TITLE ALONE. 

PETITIONER READS INTO THE DUWAMISH CASE FAR TOO MUCH.  WHEN THE FIRST
JURISDICTIONAL ACT SPECIFICALLY ALLOWING SUIT ON ORIGINAL INDIAN TITLE
IN LANGUAGE IDENTICAL WITH THAT OF THE 1935 ACT LATER CAME BEFORE THE
COURT OF CLAIMS IN COOS BAY INDIAN TRIBE V. UNITED STATES, 87 CT. CL.
143(1938), THE COURT CLEARLY RECOGNIZED THE SPECIFIC DIRECTIVES OF THE
ACT AND DENIED RECOVERY SOLELY BECAUSE ORIGINAL INDIAN TITLE HAD NOT
BEEN PROVED.  "RECOGNITION" APPEARED TO COUNT ONLY AS A POSSIBLE METHOD
OF PROVING INDIAN TITLE ITSELF, NOT AS A REQUISITE IN ADDITION TO PROOF
OF THAT TITLE.  FURTHERMORE, IN THE CASE AT BAR, THE UNMISTAKABLE
LANGUAGE OF THE COURT OF CLAIMS STANDS SQUARELY AGAINST THE
SIGNIFICANCE PETITIONER WOULD ATTACH TO THE DUWAMISH DECISION: "THE
DUWAMISH CASE DID NOT HOLD OR INTEND TO HOLD THAT AN INDIAN TRIBE COULD
NOT RECOVER COMPENSATION ON THE BASIS OF ORIGINAL INDIAN USE AND
OCCUPANCY TITLE AS FOR A TAKING IF THE JURISDICTIONAL ACT AUTHORIZED
THE BRINGING OF A SUIT AND RENDITION OF JUDGMENT FOR COMPENSATION ON
THE BASIS OF SUCH ORIGINAL TITLE."  ALCEA BAND OF TILLAMOOKS V. UNITED
STATES, 103 CT. CL. 494, 556, 59 F.SUPP.  934(1945). 

AUTHORITY FOR PETITIONER'S POSITION IS NOT FOUND IN SHOSHONE INDIANS
V. UNITED STATES, 324 U.S. 335(1945).  THE JURISDICTIONAL ACT THERE
LIMITED SUITS TO THOSE CLAIMS "ARISING UNDER OR GROWING OUT OF THE
TREATY OF JULY 2, 1863  ..."  FN25  SUITS BASED UPON ORIGINAL INDIAN
TITLE WERE NOT AUTHORIZED, BUT WE THOUGHT A CLAIM WOULD PROPERLY ARISE
UNDER THE TREATY IF IT WERE BASED UPON A TAKING OF LAND WHICH THE
TREATY HAD IN ANY WAY "RECOGNIZED" OR ACKNOWLEDGED AS BELONGING TO THE
INDIANS.  THE COURT THRICE NOTED THAT CLAIMS BASED UPON ORIGINAL INDIAN
TITLE WERE NOT INVOLVED, AND MADE NO ATTEMPT TO SETTLE CONTROVERSIES
BROUGHT UNDER OTHER JURISDICTIONAL ACTS AUTHORIZING THE LITIGATION OF
CLAIMS ARISING FROM THE TAKING OF ORIGINAL INDIAN TITLE.  FN26 

NOR DO OTHER CASES IN THIS COURT LEND SUBSTANCE TO THE DICHOTOMY OF
"RECOGNIZED" AND "UNRECOGNIZED" INDIAN TITLE WHICH PETITIONER URGES. 
MANY CASES RECITE THE PARAMOUNT POWER OF CONGRESS TO EXTINGUISH THE
INDIAN RIGHT OF OCCUPANCY BY METHODS THE JUSTICE OF WHICH "IS NOT OPEN
TO INQUIRY IN THE COURTS."  UNITED STATES V. SANTA FE PACIFIC R. CO.,
SUPRA, AT 347.  FN27 LACKING A JURISDICTIONAL ACT PERMITTING JUDICIAL
INQUIRY, SUCH LANGUAGE CANNOT BE QUESTIONED WHERE INDIANS ARE SEEKING
PAYMENT FOR APPROPRIATED LANDS; BUT HERE IN THE 1935 STATUTE CONGRESS
HAS AUTHORIZED DECISION BY THE COURTS UPON CLAIMS ARISING OUT OF
ORIGINAL INDIAN TITLE.  FURTHERMORE, SOME CASES SPEAK OF THE UNLIMITED
POWER OF CONGRESS TO DEAL WITH THOSE INDIAN LANDS WHICH ARE HELD BY
WHAT PETITIONER WOULD CALL "RECOGNIZED" TITLE; FN28  YET IT CANNOT BE
DOUBTED THAT, GIVEN THE CONSENT OF THE UNITED STATES TO BE SUED,
RECOVERY MAY BE HAD FOR AN INVOLUNTARY, UNCOMPENSATED TAKING OF
"RECOGNIZED" TITLE.  FN29  WE THINK THE SAME RULE APPLICABLE TO A
TAKING OF ORIGINAL INDIAN TITLE.  "WHETHER THIS TRACT  ...  WAS
PROPERLY CALLED A RESERVATION  ...  OR UNCEDED INDIAN COUNTRY,  ...  IS
A MATTER OF LITTLE MOMENT  ...  THE INDIANS' RIGHT OF OCCUPANCY HAS
ALWAYS BEEN HELD TO BE SACRED; SOMETHING NOT TO BE TAKEN FROM HIM
EXCEPT BY HIS CONSENT, AND THEN UPON SUCH CONSIDERATION AS SHOULD BE
AGREED UPON."  MINNESOTA V. HITCHCOCK, 185 U.S. 373, 388-89(1902). 
FN30 

REQUIRING FORMAL ACKNOWLEDGMENT OF ORIGINAL INDIAN TITLE AS WELL AS
PROOF OF THAT TITLE WOULD NULLIFY THE INTENDED CONSEQUENCES OF THE 1935
ACT.  THE RIGORS OF "RECOGNITION," ACCORDING TO PETITIONER'S VIEW,
WOULD APPEAR TO REQUIRE IN EVERY CASE SOME DEFINITE ACT OF THE UNITED
STATES GUARANTEEING UNDISTURBED, EXCLUSIVE AND PERPETUAL OCCUPANCY,
WHICH, FOR EXAMPLE, A TREATY OR STATUTE COULD PROVIDE.  YET IT WAS THE
VERY ABSENCE OF SUCH ACKNOWLEDGMENT WHICH GAVE RISE TO THE PRESENT
STATUTE. 

CONGRESS WAS QUITE FAMILIAR WITH THE PRECISION ADVISABLE WHEN
DRAFTING STATUTES GIVING JURISDICTION TO THE COURT OF CLAIMS IN INDIAN
CASES.  IN 1925 AN ACT AUTHORIZING THE LITIGATION OF ANY AND ALL CLAIMS
OF CERTAIN INDIAN TRIBES WAS PASSED.  IN JUNE, 1934, THAT ACT WAS HELD,
FOR LACK OF SPECIFICITY, NOT TO EXTEND TO CLAIMS BASED ON ORIGINAL
TITLE.  FN31  THE FOLLOWING YEAR CONGRESS PASSED THE PRESENT ACT,
EMPLOYING THE SPECIFIC LANGUAGE USED ONCE BEFORE IN THE ACT OF 1929,
FN32  UNDER WHICH COOS BAY INDIAN TRIBE V. UNITED STATES, SUPRA,
AROSE.  THE CONSIDERED ATTENTION GIVEN TO THE MANY RAMIFICATIONS OF
INDIAN AFFAIRS IN THE 1930'S  FN33  SUGGESTS THAT CONGRESS WELL
REALIZED THE IMPORT OF THE WORDS USED IN THE JURISDICTIONAL ACT OF
1935, AND THAT CONGRESS DID NOT EXPECT RESPONDENT TRIBES TO BE TURNED
OUT OF COURT EITHER BECAUSE CONGRESSIONAL POWER OVER INDIAN TITLE WAS
DEEMED TO HAVE NO LIMITS OR BECAUSE THERE WAS, AS WAS OBVIOUS TO ALL,
NO FORMAL GUARANTEE OF PERPETUAL AND EXCLUSIVE POSSESSION PRIOR TO THE
TAKING OF RESPONDENTS' LANDS IN 1855. 

RESPONDENTS HAVE SATISFACTORILY PROVED THEIR CLAIM OF ORIGINAL INDIAN
TITLE AND AN INVOLUNTARY TAKING THEREOF.  THEY ARE ENTITLED TO
COMPENSATION UNDER THE JURISDICTIONAL ACT OF 1935.  THE POWER OF
CONGRESS OVER INDIAN AFFAIRS MAY BE OF A PLENARY NATURE; BUT IT IS NOT
ABSOLUTE.  FN34 IT DOES NOT "ENABLE THE UNITED STATES TO GIVE THE
TRIBAL LANDS TO OTHERS, OR TO APPROPRIATE THEM TO ITS OWN PURPOSES,
WITHOUT RENDERING, OR ASSUMING AN OBLIGATION TO RENDER, JUST
COMPENSATION FOR THEM."  UNITED STATES V. CREEK NATION, 295 U.S. 103,
110(1935). 

IN VIEW OF THE GROUNDS UPON WHICH DECISION RESTS, IT IS NOT NECESSARY
TO CONSIDER THE ALTERNATE HOLDING OF THE COURT BELOW RELATIVE TO THE
1848 ACT AFFORDING SUFFICIENT "RECOGNITION" OF RESPONDENTS' INDIAN
TITLE.  AFFIRMED. 

FN1  49 STAT. 801.  THE PERTINENT SECTION IN FULL PROVIDES:  "THAT
JURISDICTION IS HEREBY CONFERRED ON THE COURT OF CLAIMS WITH THE RIGHT
OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES BY EITHER PARTY, AS
IN OTHER CASES, TO HEAR, EXAMINE, ADJUDICATE, AND RENDER FINAL
JUDGMENT 

...  (B) ANY AND ALL LEGAL AND EQUITABLE CLAIMS ARISING UNDER OR
GROWING OUT OF THE ORIGINAL INDIAN TITLE, CLAIM, OR RIGHTS IN, TO, OR
UPON THE WHOLE OR ANY PART OF THE LANDS AND THEIR APPURTENANCES
OCCUPIED BY THE INDIAN TRIBES AND BANDS DESCRIBED IN THE UNRATIFIED
TREATIES PUBLISHED IN SENATE EXECUTIVE DOCUMENT NUMBERED 25, FIFTY
THIRD CONGRESS, FIRST SESSION (PP. 8 TO 15), AT AND LONG PRIOR TO THE
DATES THEREOF, EXCEPT THE COOS BAY, LOWER UMPQUA, AND SIUSLAW TRIBES,
IT BEING THE INTENTION OF THIS ACT TO INCLUDE ALL THE INDIAN TRIBES OR
BANDS AND THEIR DESCENDANTS, WITH THE EXCEPTIONS NAMED, RESIDING IN THE
THEN TERRITORY OF OREGON WEST OF THE CASCADE RANGE AT AND LONG PRIOR TO
THE DATES OF THE SAID UNRATIFIED TREATIES, SOME OF WHOM, IN 1855, OR
LATER, WERE REMOVED BY THE MILITARY AUTHORITIES OF THE UNITED STATES TO
THE COAST RANGE, THE GRANDE RONDE, AND THE SILETZ RESERVATIONS IN SAID
TERRITORY." 

FN2  THE REMAINING SEVEN PLAINTIFF TRIBES FAILED TO STATE A CAUSE OF
ACTION UNDER THE JURISDICTIONAL ACT AND THE RULES OF THE COURT OF
CLAIMS. 

FN3  "ORIGINAL INDIAN TITLE" IS USED TO DESIGNATE THE INDIAN RIGHT OF
OCCUPANCY BASED UPON ABORIGINAL POSSESSION. 

FN4  9 STAT. 323.  THE ACT CREATED A TERRITORIAL GOVERNMENT AND
DECLARED:  "THAT NOTHING IN THIS ACT CONTAINED SHALL BE CONSTRUED TO
IMPAIR THE RIGHTS OF PERSON OR PROPERTY NOW PERTAINING TO THE INDIANS
IN SAID TERRITORY, SO LONG AS SUCH RIGHTS SHALL REMAIN UNEXTINGUISHED
BY TREATY BETWEEN THE UNITED STATES AND SUCH INDIANS, OR TO AFFECT THE
AUTHORITY OF THE GOVERNMENT OF THE UNITED STATES TO MAKE ANY REGULATION
RESPECTING SUCH INDIANS, THEIR LANDS, PROPERTY, OR OTHER RIGHTS, BY
TREATY, LAW, OR OTHERWISE, WHICH IT WOULD HAVE BEEN COMPETENT TO THE
GOVERNMENT TO MAKE IF THIS ACT HAD NEVER PASSED  ..." 

FN5  9 STAT. 323. 

FN6  9 STAT. 437. 

FN7  28 STAT. 286, 323. 

FN8  28 STAT. 286, 323. 

FN9  IN 1851 DART AND PALMER NEGOTIATED TREATIES WITH NINETEEN TRIBES
OTHER THAN RESPONDENTS.  NONE OF THESE TREATIES WAS RATIFIED; BUT
TWELVE OF THE NINETEEN TRIBES WERE INCLUDED IN FURTHER TREATIES MADE IN
1853, 1854, AND 1855, AND CONGRESS IN 1897 AND 1912 PROVIDED FOR PAYING
THE REMAINING SEVEN TRIBES FOR THEIR LANDS TAKEN UNDER THE UNRATIFIED
TREATIES. 

FN10  45 STAT. 1256, AS AMENDED IN RESPECTS IMMATERIAL HERE, 47 STAT.
307. 

FN11  COOS BAY INDIAN TRIBE V. UNITED STATES, 87 CT. CL. 143(1938),
DISCUSSED INFRA P. 50, AROSE UNDER THE 1929 ACT. 

FN12  46 STAT. 531, AMENDING 44 STAT. 1263.  ASSINIBOINE INDIAN TRIBE
V. UNITED STATES, 77 CT. CL. 347(1933) WAS LITIGATED UNDER THIS
JURISDICTIONAL ACT. 

FN13 UNITED STATES V. MILLE LAC CHIPPEWAS, 229 U.S. 498, 500(1913);
THE SAC AND FOX INDIANS, 220 U.S. 481, 489(1911). 

FN14  UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339,
347(1941), AND CASES NOTE 27 INFRA. 

FN15  JOHNSON V. MCINTOSH, 8 WHEAT.  543, 573-74(1823). 

FN16  UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339(1941). 

FN17  BEECHER V. WETHERBY, 95 U.S. 517(1877). 

FN18  THE "MORAL" OBLIGATION UPON CONGRESS, OF WHICH THE CASES SPEAK,
REFERS MORE TO THE OBLIGATION TO OPEN THE COURTS TO SUIT BY THE
INDIANS.  IT DOES NOT MEAN THAT THERE IS NO SUBSTANTIVE RIGHT IN THE
INDIANS.  SO IN UNITED STATES V. BLACKFEATHER, 155 U.S. 180, 194(1894)
IT WAS HELD THAT, "WHILE THERE MAY BE A MORAL OBLIGATION ON THE PART OF
THE GOVERNMENT TO REIMBURSE THE MONEY EMBEZZLED BY THE INDIAN
SUPERINTENDENT  ...," THE JURISDICTIONAL ACT IN POINT DID NOT EXTEND TO
SUCH A CLAIM.  YET, GIVEN CONSENT TO SUIT, IT WOULD HARDLY BE SAID THAT
THERE WAS NO SUBSTANTIVE RIGHT AGAINST THE UNITED STATES FOR
EMBEZZLEMENT OF INDIAN FUNDS. 

FN19  "THE PRACTICAL ADMISSION OF THE EUROPEAN CONQUERORS OF THIS
COUNTRY RENDERS IT UNNECESSARY FOR US TO SPECULATE ON THE EXTENT OF
THAT RIGHT WHICH THEY MIGHT HAVE ASSERTED FROM CONQUEST  ... THE
CONQUERORS HAVE NEVER CLAIMED MORE THAN THE EXCLUSIVE RIGHT OF PURCHASE
FROM THE INDIANS  ..."  1 OP. A.G. 465, 466(1821)(WILLIAM WIRT). 

FN20  SEE THE ANALYSIS IN COHEN, HANDBOOK OF FEDERAL INDIAN LAW
(1945) 51-66. 

FN21  16 STAT. 544. 

FN22  9 STAT. 323, 329, SEC. 14. 

FN23  43 STAT. 886. 

FN24  DUWAMISH INDIANS V. UNITED STATES, 79 CT. CL. 530, 600(1934). 

FN25  45 STAT. 1407. 

FN26  SHOSHONE INDIANS V. UNITED STATES, 324 U.S. 335, 337, 339,
354(1945). 

FN27  THE STATEMENTS IN MANY CASES ARE DIRECTED TO DISPUTES BETWEEN
THIRD PARTIES, ONE OF WHOM ATTEMPTS TO RAISE A DEFECT IN THE OTHER'S
TITLE BY TRACING IT TO A GOVERNMENT GRANT OUT OF INDIAN TERRITORY AND
ATTACKING THE POWER OR THE METHOD USED BY THE SOVEREIGN TO CONVEY
INDIAN LANDS.  BEECHER V. WETHERBY, 95 U.S. 517, 525(1877); BUTTZ V.
NORTHERN PACIFIC RAILROAD, 119 U.S. 55, 66(1886); MARTIN V. WADDELL, 16
PET. 367, 409(1842); CLARK V. SMITH, 13 PET. 195, 201(1839).  AND IN
OTHER CASES, THE ISSUE WAS NOT THE RIGHT OF INDIAN TRIBES TO BE
COMPENSATED FOR AN EXTINGUISHMENT OF ORIGINAL INDIAN TITLE BY THE
UNITED STATES.  SHOSHONE INDIANS V. UNITED STATES, 324 U.S. 335(1945);
UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339(1941); CONLEY V.
BALLINGER, 216 U.S. 84(1910); LONE WOLF V. HITCHCOCK, 187 U.S.
553(1903); CHEROKEE NATION V. HITCHCOCK, 187 U.S. 294(1902). 

FN28  LONE WOLF V. HITCHCOCK, 187 U.S. 553, 566(1903); BEECHER V.
WETHERBY, 95 U.S. 517, 525(1877).  THE LONE WOLF CASE WAS PROPERLY
ASSESSED IN SHOSHONE TRIBE V. UNITED STATES, 299 U.S. 476, 497(1937):
"POWER TO CONTROL AND MANAGE THE PROPERTY AND AFFAIRS OF INDIANS IN
GOOD FAITH FOR THEIR BETTERMENT AND WELFARE MAY BE EXERTED IN MANY WAYS
AND AT TIMES EVEN IN DEROGATION OF THE PROVISIONS OF A TREATY."  SEE
ALSO OKLAHOMA V. TEXAS, 258 U.S. 574, 592(1922). 

IN BARKER V. HARVEY, 181 U.S. 481(1901), THE INDIAN CLAIMS WERE
DEEMED EXTINGUISHED BY NON-PRESENTMENT TO THE LAND COMMISSION, AND THIS
WAS TRUE EVEN IF THE CLAIMS HAD BEEN "RECOGNIZED" BY THE MEXICAN
GOVERNMENT PRIOR TO THE CESSION OF LANDS TO THE UNITED STATES. 

FN29  UNITED STATES V. KLAMATH INDIANS, 304 U.S. 119(1938); CHIPPEWA
INDIANS V. UNITED STATES, 301 U.S. 358(1937); SHOSHONE TRIBE V. UNITED
STATES, 299 U.S. 476(1937); UNITED STATES V. CREEK NATION, 295 U.S.
103(1935). 

FN30  OTHER CASES ALSO DRAW NO DISTINCTION BETWEEN ORIGINAL INDIAN
TITLE AND "RECOGNIZED" INDIAN TITLE.  "THE INDIAN TITLE AS AGAINST THE
UNITED STATES WAS MERELY A TITLE AND RIGHT TO THE PERPETUAL OCCUPANCY
OF THE LAND WITH THE PRIVILEGE OF USING IT IN SUCH MODE AS THEY SAW FIT
UNTIL SUCH RIGHT OF OCCUPATION HAD BEEN SURRENDERED TO THE GOVERNMENT. 
WHEN INDIAN RESERVATIONS WERE CREATED, EITHER BY TREATY OR EXECUTIVE
ORDER, THE INDIANS HELD THE LAND BY THE SAME CHARACTER OF TITLE, TO
WIT, THE RIGHT TO POSSESS AND OCCUPY THE LANDS FOR THE USES AND
PURPOSES DESIGNATED."  SPALDING V. CHANDLER, 160 U.S. 394, 403(1896). 
OF SIMILAR TENOR IS CONLEY V. BALLINGER, 216 U.S. 84, 90-91(1910). 
THE OLDER CASES EXPLAINING AND GIVING SUBSTANCE TO THE INDIAN RIGHT OF
OCCUPANCY CONTAIN NO SUGGESTION THAT ONLY "RECOGNIZED" INDIAN TITLE WAS
BEING CONSIDERED.  INDEED, THE INFERENCE IS QUITE OTHERWISE.  MITCHEL
V. UNITED STATES, 9 PET. 711, 746(1835); WORCESTER V. GEORGIA, 6 PET.
515, 543-48(1832); JOHNSON V. MCINTOSH, 8 WHEAT.  543, 573-74(1823). 

FN31  DUWAMISH INDIANS V. UNITED STATES, 79 CT. CL. 530(1934). 

FN32  45 STAT. 1256, AS AMENDED IN RESPECTS IMMATERIAL HERE, 47 STAT.
307. 

FN33  "THE DECADE FROM 1930 TO 1939 IS AS NOTABLE IN THE HISTORY OF
INDIAN LEGISLATION AS THAT OF THE 1830'S OR THE 1880'S."  COHEN,
HANDBOOK OF FEDERAL INDIAN LAW (1945) 83.    FN34  STEPHENS V. CHEROKEE
NATION, 174 U.S. 445, 478(1899). 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

BEFORE CONGRESS PASSED THE SPECIAL ACT UNDER WHICH THIS SUIT WAS
BROUGHT, I THINK THAT THE GOVERNMENT WAS UNDER NO MORE LEGAL OR
EQUITABLE OBLIGATION TO PAY THESE RESPONDENTS THAN IT WAS UNDER
OBLIGATION TO PAY WHATEVER DESCENDANTS ARE LEFT OF THE NUMEROUS OTHER
TRIBES WHOSE LANDS AND HOMES HAVE BEEN TAKEN FROM THEM SINCE THE NATION
WAS FOUNDED.  SEE NORTHWESTERN SHOSHONE INDIANS V. UNITED STATES, 324
U.S. 335, 354-358, CONCURRING OPINION.  IT SEEMS PRETTY CLEAR TO ME,
HOWEVER, THAT CONGRESS IN THE ACT OF AUGUST 26, 1935, 49 STAT. 801,
CREATED AN OBLIGATION ON THE PART OF THE GOVERNMENT TO PAY THESE
INDIANS FOR ALL LANDS TO WHICH THEIR ANCESTORS HELD AN "ORIGINAL INDIAN
TITLE."  THIS INTERPRETATION OF THE ACT IS NOT ONLY CONSISTENT WITH THE
UNUSUALLY BROAD LANGUAGE CONGRESS USED, BUT ALSO FITS INTO THE PATTERN
OF CONGRESSIONAL LEGISLATION WHICH HAS BECOME PROGRESSIVELY MORE
GENEROUS IN ITS TREATMENT OF INDIANS.  THE CAPSTONE OF THIS TYPE OF
LEGISLATION WAS AN ACT PASSED BY THE LAST CONGRESS, WHICH ESTABLISHED
AN INDIAN CLAIMS COMMISSION WITH SWEEPING POWERS TO PAY OLD INDIAN
CLAIMS GROWING OUT OF SEIZURE OF THEIR LANDS, AMONG OTHER THINGS.  THIS
COMMISSION IS GIVEN POWER TO MAKE AWARDS, SUBJECT TO REVIEW BY THE
COURT OF CLAIMS, WITH AND WITHOUT REGARD TO PREVIOUS RULES OF LAW OR
EQUITY COURTS.  THE COMMISSION IS EVEN GIVEN A BLANKET POWER TO MAKE
AWARDS UPON FINDING, FOR EXAMPLE, THAT THE LAND OF INDIANS WAS TAKEN BY
THE GOVERNMENT IN A WAY THAT DID NOT COMPORT WITH "FAIR AND HONORABLE
DEALINGS."  60 STAT. 1049, 1050, SEC. 2(5).  SINCE WHATEVER OUR ACTION
HERE, THESE INDIANS COULD, I ASSUME, PURSUE THEIR CLAIMS UNDER THIS
BROAD RECENT LEGISLATION, AND SINCE THE LANGUAGE OF THE ACT BEFORE US
DOES NOT PRECLUDE A SIMILARLY BROAD INTERPRETATION, I SEE NO REASON WHY
IT SHOULD BE OTHERWISE INTERPRETED.  THIS LEADS ME TO CONCUR IN
AFFIRMANCE OF THE JUDGMENT. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE RUTLEDGE AND MR. JUSTICE
BURTON JOIN, DISSENTING. 

THIS CASE PRESENTS DIRECTLY FOR THE FIRST TIME IN THIS COURT THE
QUESTION OF WHETHER AN INDIAN BAND IS LEGALLY ENTITLED TO RECOVER
COMPENSATION FROM THE UNITED STATES FOR THE TAKING BY THE GOVERNMENT OF
THE ABORIGINAL LANDS OF THE INDIANS WHEN THERE HAS BEEN NO PRIOR
RECOGNITION BY THE UNITED STATES THROUGH TREATY OR STATUTE OF ANY TITLE
OR LEGAL OR EQUITABLE RIGHT OF THE INDIANS IN THE LAND.  THE COURT
ALLOWS COMPENSATION.  THE IMPORTANCE OF THE ISSUE PERSUADES US THAT WE
SHOULD EXPRESS THE REASONS FOR OUR DISSENT.  IT IS DIFFICULT TO FORESEE
THE RESULT OF THIS RULING IN THE CONSIDERATION OF CLAIMS BY INDIAN
TRIBES AGAINST THE UNITED STATES.  WE DO NOT KNOW THE AMOUNT OF LAND SO
TAKEN.  WEST OF THE MISSISSIPPI IT MUST BE LARGE.  EVEN WHERE RELEASES
OF INDIAN TITLE HAVE BEEN OBTAINED IN RETURN FOR RECOGNITION OF INDIAN
RIGHTS TO SMALLER AREAS, CHARGES OF UNFAIR DEALINGS MAY OPEN UP TO
CONSIDERATION AGAIN LEGAL OR EQUITABLE CLAIMS FOR TAKING ABORIGINAL
LANDS.  FN1 

THE COURT RIGHTLY STATES THE EFFECT OF THE JURISDICTIONAL ACT IN
THESE WORDS: 

"THE ACT REMOVES THE IMPEDIMENTS OF SOVEREIGN IMMUNITY AND LAPSE OF
TIME AND PROVIDES FOR JUDICIAL DETERMINATION OF THE DESIGNATED CLAIMS. 
NO NEW RIGHT OR CAUSE OF ACTION IS CREATED.  A MERELY MORAL CLAIM IS
NOT MADE A LEGAL ONE.  (ANTE, P. 45.) 

     .         .         .         .         . 

"LACKING A JURISDICTIONAL ACT PERMITTING JUDICIAL INQUIRY, SUCH
LANGUAGE CANNOT BE QUESTIONED WHERE INDIANS ARE SEEKING PAYMENT FOR
APPROPRIATED LANDS; BUT HERE IN THE 1935 STATUTE CONGRESS HAS
AUTHORIZED DECISION BY THE COURTS UPON CLAIMS ARISING OUT OF ORIGINAL
INDIAN TITLE."  (ANTE, P. 51.) 

THIS MEANS, AND THE COURT SO TREATS THE CLAIMS, THAT THE INDIANS HERE
GET NO MONEY BY GRACE OR CHARITY OR FOR REASONS OF HONORABLE DEALINGS
WITH HELPLESS PEOPLES.  FN2  THE RECOVERY BY THEM UNDER THIS ACT WILL
BE BECAUSE THEY HAVE HAD VALID CLAIMS AGAINST THE UNITED STATES ON
ACCOUNT OF THEIR OUSTER FROM THESE LANDS IN 1855.  THESE INDIANS HAVE
NOT BEEN PAID THE SUMS OWING THEM, ONE DEDUCES FROM THE COURT'S
OPINION, BECAUSE THE SOVEREIGN, OUR NATION, KEPT THE COURTS CLOSED TO
THEM.  THE JURISDICTIONAL ACT, THE COURT HOLDS, REMOVES THIS BAR TO
RECOVERY.  THIS CONCLUSION CONFLICTS WITH OUR UNDERSTANDING OF THIS
GOVERNMENT'S RIGHT IN THE PUBLIC LANDS OF THE NATION. 

THE CHARACTER OF INDIAN OCCUPANCY OF TRIBAL LANDS IS AT LEAST OF TWO
KINDS:  FIRST, OCCUPANCY AS ABORIGINES UNTIL THAT OCCUPANCY IS
INTERRUPTED BY GOVERNMENTAL ORDER; AND, SECOND, OCCUPANCY WHEN BY AN
ACT OF CONGRESS THEY ARE GIVEN A DEFINITE AREA AS A PLACE UPON WHICH TO
LIVE.  WHEN INDIANS RECEIVE RECOGNITION OF THEIR RIGHT TO OCCUPY LANDS
BY ACT OF CONGRESS, THEY HAVE A RIGHT OF OCCUPANCY WHICH CANNOT BE
TAKEN FROM THEM WITHOUT COMPENSATION.  FN3  BUT BY THE OTHER TYPE OF
OCCUPANCY, IT MAY BE CALLED INDIAN TITLE, THE INDIANS GET NO RIGHT TO
CONTINUE TO OCCUPY THE LANDS; AND ANY INTERFERENCE WITH THEIR OCCUPANCY
BY THE UNITED STATES HAS NOT HERETOFORE GIVEN RISE TO ANY RIGHT OF
COMPENSATION, LEGAL OR EQUITABLE.  FN4 

THIS DISTINCTION BETWEEN RIGHTS FROM RECOGNIZED OCCUPANCY AND FROM
INDIAN TITLE SPRINGS FROM THE THEORY UNDER WHICH THE EUROPEAN NATIONS
TOOK POSSESSION OF THE LANDS OF THE AMERICAN ABORIGINES.  THIS THEORY
WAS THAT DISCOVERY BY THE CHRISTIAN NATIONS GAVE THEM SOVEREIGNTY OVER
AND TITLE TO THE LANDS DISCOVERED.  JOHNSON V. M'INTOSH, 8 WHEAT.  543,
572-86; 1 STORY, COMMENTARIES ON THE CONSTITUTION (5TH ED.)  SEC.  152.
WHILE INDIANS WERE PERMITTED TO OCCUPY THESE LANDS UNDER THEIR INDIAN
TITLE,  FN5  THE CONQUERING NATIONS ASSERTED THE RIGHT TO EXTINGUISH
THAT INDIAN TITLE WITHOUT LEGAL RESPONSIBILITY TO COMPENSATE THE INDIAN
FOR HIS LOSS.  FN6  IT IS NOT FOR THE COURTS OF THE CONQUEROR TO
QUESTION THE PROPRIETY OR VALIDITY OF SUCH AN ASSERTION OF POWER. 
INDIANS WHO CONTINUED TO OCCUPY THEIR ABORIGINAL HOMES, WITHOUT
DEFINITE RECOGNITION OF THEIR RIGHT TO DO SO ARE LIKE PALEFACE
SQUATTERS ON PUBLIC LANDS WITHOUT COMPENSABLE RIGHTS IF THEY ARE
EVICTED.  TENURE FOR INDIAN TRIBES SPECIFICALLY RECOGNIZED BY CONGRESS
DEVELOPED ALONG DIFFERENT LINES IN THE ORIGINAL STATES, THE LOUISIANA
PURCHASE, THE MEXICAN SESSION OR THE LANDS OBTAINED BY THE NORTHWEST
BOUNDARY TREATY.  BUT THERE IS NO INSTANCE KNOWN TO US WHERE THERE HAS
BEEN INTIMATION OR HOLDING THAT CONGRESSIONAL POWER TO TAKE INDIAN
TITLE TO LANDS IS LIMITED.  WHENEVER THE LANDS TO WHICH THE INDIANS HAD
ONLY INDIAN TITLE WERE REQUIRED FOR SETTLEMENT OR PUBLIC USE, THE
SOVEREIGN WITHOUT LEGAL OBLIGATION COULD EXTINGUISH THAT TITLE BY
PURCHASE OR THE SWORD.  FN7 

IN BARKER V. HARVEY, 181 U.S. 481, MISSION INDIANS CLAIMED A RIGHT OF
PERMANENT OCCUPANCY IN FORMER MEXICAN LANDS CEDED TO THE UNITED STATES
BY THE TREATY OF GUADALUPE HIDALGO.  THEY MADE THIS CLAIM AGAINST A
RIGHT ARISING BY VIRTUE OF A PATENT THAT WAS ISSUED BY THE UNITED
STATES IN CONFIRMATION OF GRANTS BY THE MEXICAN GOVERNMENT IN
DEROGATION OF THE INDIAN TITLE.  THIS COURT SAID AS TO THIS INDIAN
TITLE, P. 491, "THAT A CLAIM OF A RIGHT TO PERMANENT OCCUPANCY OF LAND
IS ONE OF FAR-REACHING EFFECT, AND IT COULD NOT WELL BE SAID THAT LANDS
WHICH WERE BURDENED WITH A RIGHT OF PERMANENT OCCUPANCY WERE A PART OF
THE PUBLIC DOMAIN AND SUBJECT TO THE FULL DISPOSAL OF THE UNITED
STATES."  FN8  THIS COURT CONFIRMED TITLE CONTRARY TO THE INDIAN
CLAIM.  RIGHTS OF OCCUPANCY GIVEN TO INDIANS BY AN EXECUTIVE ORDER MAY
BE WITHDRAWN WITHOUT COMPENSATION TO THE INDIANS WHERE THEIR TITLE WAS
NOT RECOGNIZED BY CONGRESSIONAL ACT.  THE INDIANS DO NOT HOLD SUCH
LANDS BY THE SAME TENURE AS THEY DO THE LANDS BY THE TERMS OF A
RATIFIED TREATY OR STATUTE.  SIOUX TRIBE V. UNITED STATES, 316 U.S.
317, 326-28. 

AS WE UNDERSTAND THE PRESENT HOLDING OF THE COURT, IT IS THAT THE
MANNER OF TERMINATING THIS INDIAN TITLE BY THE UNITED STATES IS LIMITED
BY THE DUTY TO PAY COMPENSATION.  THEREIN, WE THINK, LIES THE
FUNDAMENTAL ERROR OF THE COURT'S OPINION.  IT IS TRUE THAT DISTINCTIONS
HAVE BEEN MADE BETWEEN PLENARY AUTHORITY OVER TRIBAL LANDS AND ABSOLUTE
POWER, WITH THE SUGGESTION THAT CONGRESSIONAL POWER OVER INDIAN TITLE
WAS NOT UNLIMITED.  SEE COHEN, HANDBOOK OF INDIAN LAW, 94, 291, 309,
310, 311.  EXAMINATION OF THE AUTHORITIES CITED, HOWEVER, WILL SHOW, WE
THINK, IN EVERY INSTANCE, THAT WHERE REFERENCE IS MADE TO THE
PROTECTION OF INDIAN LANDS BY THE FIFTH AMENDMENT OR TO THE LEGAL
OBLIGATION OF THE UNITED STATES TO COMPENSATE INDIANS FOR LANDS TAKEN,
THE LANDS UNDER DISCUSSION WERE LANDS HELD BY THE INDIANS UNDER TITLES
RECOGNIZED BY SPECIFIC ACTS OF CONGRESS.  FN9 

WHEN CHIEF JUSTICE MARSHALL EXPOUNDED FOR THE COURT THE POWER OF THE
UNITED STATES TO EXTINGUISH INDIAN TITLE, THIS DOCTRINE WAS LAID DOWN
FOR THE NATION'S GUIDANCE IN DEALING WITH THE INDIANS: 

"THE UNITED STATES, THEN, HAVE UNEQUIVOCALLY ACCEDED TO THAT GREAT
AND BROAD RULE BY WHICH ITS CIVILIZED INHABITANTS NOW HOLD THIS
COUNTRY.  THEY HOLD, AND ASSERT IN THEMSELVES, THE TITLE BY WHICH IT
WAS ACQUIRED.  THEY MAINTAIN, AS ALL OTHERS HAVE MAINTAINED, THAT
DISCOVERY GAVE AN EXCLUSIVE RIGHT TO EXTINGUISH THE INDIAN TITLE OF
OCCUPANCY, EITHER BY PURCHASE OR BY CONQUEST; AND GAVE ALSO A RIGHT TO
SUCH A DEGREE OF SOVEREIGNTY, AS THE CIRCUMSTANCES OF THE PEOPLE WOULD
ALLOW THEM TO EXERCISE. 

"...  ALL OUR INSTITUTIONS RECOGNISE THE ABSOLUTE TITLE OF THE CROWN,
SUBJECT ONLY TO THE INDIAN RIGHT OF OCCUPANCY, AND RECOGNISED THE
ABSOLUTE TITLE OF THE CROWN TO EXTINGUISH THAT RIGHT.  THIS IS
INCOMPATIBLE WITH AN ABSOLUTE AND COMPLETE TITLE IN THE INDIANS. 

"...  CONQUEST GIVES A TITLE WHICH THE COURTS OF THE CONQUEROR CANNOT
DENY, WHATEVER THE PRIVATE AND SPECULATIVE OPINIONS OF INDIVIDUALS MAY
BE, RESPECTING THE ORIGINAL JUSTICE OF THE CLAIM WHICH HAS BEEN
SUCCESSFULLY ASSERTED.... 

     .         .         .         .         . 

"THE TITLE BY CONQUEST IS ACQUIRED AND MAINTAINED BY FORCE.  THE
CONQUEROR PRESCRIBES ITS LIMITS....  WHERE THIS INCORPORATION IS
PRACTICABLE, HUMANITY DEMANDS, AND A WISE POLICY REQUIRES, THAT THE
RIGHTS OF THE CONQUERED TO PROPERTY SHOULD REMAIN UNIMPAIRED; THAT THE
NEW SUBJECTS SHOULD BE GOVERNED AS EQUITABLY AS THE OLD, AND THAT
CONFIDENCE IN THEIR SECURITY SHOULD GRADUALLY BANISH THE PAINFUL SENSE
OF BEING SEPARATED FROM THEIR ANCIENT CONNEXIONS, AND UNITED BY FORCE
TO STRANGERS. 

     .         .         .         .         . 

"...  THE TRIBES OF INDIANS INHABITING THIS COUNTRY WERE FIERCE
SAVAGES, WHOSE OCCUPATION WAS WAR, AND WHOSE SUBSISTENCE WAS DRAWN
CHIEFLY FROM THE FOREST.  TO LEAVE THEM IN POSSESSION OF THEIR COUNTRY,
WAS TO LEAVE THE COUNTRY A WILDERNESS; TO GOVERN THEM AS A DISTINCT
PEOPLE, WAS IMPOSSIBLE, BECAUSE THEY WERE AS BRAVE AND AS HIGH SPIRITED
AS THEY WERE FIERCE, AND WERE READY TO REPEL BY ARMS EVERY ATTEMPT ON
THEIR INDEPENDENCE. 

"WHAT WAS THE INEVITABLE CONSEQUENCE OF THIS STATE OF THINGS?  THE
EUROPEANS WERE UNDER THE NECESSITY EITHER OF ABANDONING THE COUNTRY,
AND RELINQUISHING THEIR POMPOUS CLAIMS TO IT, OR OF ENFORCING THOSE
CLAIMS BY THE SWORD, AND BY THE ADOPTION OF PRINCIPLES ADAPTED TO THE
CONDITION OF A PEOPLE WITH WHOM IT WAS IMPOSSIBLE TO MIX, AND WHO COULD
NOT BE GOVERNED AS A DISTINCT SOCIETY, OR OF REMAINING IN THEIR
NEIGHBOURHOOD, AND EXPOSING THEMSELVES AND THEIR FAMILIES TO THE
PERPETUAL HAZARD OF BEING MASSACRED. 

"FREQUENT AND BLOODY WARS, IN WHICH THE WHITES WERE NOT ALWAYS THE
AGGRESSORS, UNAVOIDABLY ENSUED.  EUROPEAN POLICY, NUMBERS, AND SKILL,
PREVAILED.  AS THE WHITE POPULATION ADVANCED, THAT OF THE INDIANS
NECESSARILY RECEDED.  THE COUNTRY IN THE IMMEDIATE NEIGHBOURHOOD OF
AGRICULTURISTS BECAME UNFIT FOR THEM.  THE GAME FLED INTO THICKER AND
MORE UNBROKEN FORESTS, AND THE INDIANS FOLLOWED.  THE SOIL, TO WHICH
THE CROWN ORIGINALLY CLAIMED TITLE, BEING NO LONGER OCCUPIED BY ITS
ANCIENT INHABITANTS, WAS PARCELLED OUT ACCORDING TO THE WILL OF THE
SOVEREIGN POWER, AND TAKEN POSSESSION OF BY PERSONS WHO CLAIMED
IMMEDIATELY FROM THE CROWN, OR MEDIATELY, THROUGH ITS GRANTEES OR
DEPUTIES."  8 WHEAT.  587-91. 

IT IS UNNECESSARY FOR THIS CASE TO UNDERTAKE AT THIS LATE DATE TO
WEIGH THE RIGHTS AND WRONGS OF THIS TREATMENT OF ABORIGINAL OCCUPANCY. 
WHERE INJUSTICES HAVE BEEN DONE TO FRIENDLY PEOPLES, CONGRESS HAS
SOUGHT TO SOFTEN THEIR EFFECT BY ACTS OF MERCY.  NEVER HAS THERE BEEN
ACKNOWLEDGMENT BEFORE OF A LEGAL OR EQUITABLE RIGHT TO COMPENSATION
THAT SPRINGS FROM THE APPROPRIATION BY THE UNITED STATES OF THE INDIAN
TITLE. 

"EXTINGUISHMENT OF INDIAN TITLE BASED ON ABORIGINAL POSSESSION IS OF
COURSE A DIFFERENT MATTER.  THE POWER OF CONGRESS IN THAT REGARD IS
SUPREME.  THE MANNER, METHOD AND TIME OF SUCH EXTINGUISHMENT RAISE
POLITICAL, NOT JUSTICIABLE, ISSUES.  BUTTZ V. NORTHERN PACIFIC
RAILROAD, SUPRA, P. 66.  AS STATED BY CHIEF JUSTICE MARSHALL IN JOHNSON
V. M'INTOSH, SUPRA, P. 586, 'THE EXCLUSIVE RIGHT OF THE UNITED STATES
TO EXTINGUISH' INDIAN TITLE HAS NEVER BEEN DOUBTED.  AND WHETHER IT BE
DONE BY TREATY, BY THE SWORD, BY PURCHASE, BY THE EXERCISE OF COMPLETE
DOMINION ADVERSE TO THE RIGHT OF OCCUPANCY, OR OTHERWISE, ITS JUSTNESS
IS NOT OPEN TO INQUIRY IN THE COURTS.  BEECHER V. WETHERBY, 95 U.S.
517, 525."  UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339,
347.    THE COLONIES, THE STATES AND THE NATION ALIKE, BY THEIR EARLY
LEGISLATION, PROVIDED THAT ONLY THE RESPECTIVE SOVEREIGNS COULD
EXTINGUISH THE INDIAN TITLE.  FN10  THE WAY IN WHICH IT WAS TO BE
EXTINGUISHED HAS BEEN HELD, CONTINUALLY, A POLITICAL MATTER.  FN11  THE
JURISDICTIONAL ACT NOW UNDER CONSIDERATION DOES NOT PURPORT TO CHANGE A
POLITICAL MATTER TO A JUSTICIABLE ONE.    WHEN THIS PRESENT
JURISDICTIONAL ACT WAS CONSIDERED BY CONGRESS, NOTHING IN THE REPORTS
OR THE DEBATES  FN12  INDICATES THAT CONGRESS INTENDED TO CREATE A NEW
LIABILITY BECAUSE INDIAN TITLE HAD BEEN TAKEN.  THIS COURT RELIES UPON
NO CHANGE OF ATTITUDE IN CONGRESS, BUT FINDS THAT THIS LIABILITY HAS
ALWAYS EXISTED AND THAT THIS ACT MERELY REMOVES THE BAR AGAINST SUIT. 
THIS WE THINK IS CONTRARY TO THE WHOLE COURSE OF OUR RELATIONS WITH THE
INDIANS. 

THE COURT FINDS A BASIS FOR THIS ACTION IN THAT THIS NATION SHOULD
NOT TAKE THE INDIAN TITLE WITHOUT COMPENSATION BECAUSE SUCH A TAKING
WOULD NOT SATISFY THE "'HIGH STANDARDS FOR FAIR DEALING' REQUIRED OF
THE UNITED STATES IN CONTROLLING INDIAN AFFAIRS."  THE LANGUAGE USED BY
THE COURT IS TAKEN FROM UNITED STATES V. SANTA FE PACIFIC R. CO., 314
U.S. 339 AT 356.  IT THERE REFERRED TO AN ACT UNAUTHORIZED BY CONGRESS
AND NOT TO SUCH TAKINGS AS HERE OCCURRED WHEN CONGRESS OPENED THE
ORIGINAL HOME OF THESE RESPONDENTS FOR SETTLEMENT. 

IN WORCESTER V. GEORGIA, 6 PET. 515, 543, 544, 547, LANDS HAD BEEN
SPECIFICALLY SET APART FOR THE CHEROKEES.  P. 556.  THEREFORE CHIEF
JUSTICE MARSHALL'S COMMENTS WERE DIRECTED AT A SITUATION THAT DOES NOT
EXIST HERE. 

A CONCURRING OPINION HAS BEEN FILED WHICH HOLDS THAT CONGRESS IN THE
ACT HERE INVOLVED "CREATED AN OBLIGATION ON THE PART OF THE GOVERNMENT
TO PAY THESE INDIANS" FOR THEIR INDIAN TITLE.  WE DO NOT THINK THIS
PRESENT ACT IS SUSCEPTIBLE OF THAT INTERPRETATION.  WE READ THE ACT, AS
WE UNDERSTAND OUR BRETHREN DO, TO PERMIT RECOVERY OF COMPENSATION ONLY
IN CASE THERE WERE RIGHTS IN THE INDIANS PRIOR TO ITS PASSAGE "ARISING
UNDER OR GROWING OUT OF THE ORIGINAL INDIAN TITLE."  WE THINK NO RIGHTS
AROSE FROM THIS INDIAN TITLE.  THEREFORE NO COMPENSATION IS DUE. 

AS WE ARE OF THE OPINION THAT THE JURISDICTIONAL ACT PERMITTED
JUDGMENT ONLY FOR CLAIMS ARISING UNDER OR GROWING OUT OF THE ORIGINAL
INDIAN TITLE AND ARE FURTHER OF THE OPINION THAT THERE WERE NO LEGAL OR
EQUITABLE CLAIMS THAT GREW OUT OF THE TAKING OF THIS INDIAN TITLE, WE
WOULD REVERSE THE JUDGMENT OF THE COURT OF CLAIMS AND DIRECT THAT THE
BILL OF THE RESPONDENTS SHOULD BE DISMISSED.  CF. SHOSHONE INDIANS V.
UNITED STATES, 324 U.S. 335. 

FN1  SEE INDIAN CLAIMS COMMISSION ACT, APPROVED AUGUST 13, 1946, 60
STAT. 1049, 1050: 

"SEC. 2.  THE COMMISSION SHALL HEAR AND DETERMINE THE FOLLOWING
CLAIMS AGAINST THE UNITED STATES ON BEHALF OF ANY INDIAN TRIBE, BAND,
OR OTHER IDENTIFIABLE GROUP OF AMERICAN INDIANS RESIDING WITHIN THE
TERRITORIAL LIMITS OF THE UNITED STATES OR ALASKA:  (1) CLAIMS IN LAW
OR EQUITY ARISING UNDER THE CONSTITUTION, LAWS, TREATIES OF THE UNITED
STATES, AND EXECUTIVE ORDERS OF THE PRESIDENT; (2) ALL OTHER CLAIMS IN
LAW OR EQUITY, INCLUDING THOSE SOUNDING IN TORT, WITH RESPECT TO WHICH
THE CLAIMANT WOULD HAVE BEEN ENTITLED TO SUE IN A COURT OF THE UNITED
STATES IF THE UNITED STATES WAS SUBJECT TO SUIT; (3) CLAIMS WHICH WOULD
RESULT IF THE TREATIES, CONTRACTS, AND AGREEMENTS BETWEEN THE CLAIMANT
AND THE UNITED STATES WERE REVISED ON THE GROUND OF FRAUD, DURESS,
UNCONSCIONABLE CONSIDERATION, MUTUAL OR UNILATERAL MISTAKE, WHETHER OF
LAW OR FACT, OR ANY OTHER GROUND COGNIZABLE BY A COURT OF EQUITY; (4)
CLAIMS ARISING FROM THE TAKING BY THE UNITED STATES, WHETHER AS THE
RESULT OF A TREATY OF CESSION OR OTHERWISE, OF LANDS OWNED OR OCCUPIED
BY THE CLAIMANT WITHOUT THE PAYMENT FOR SUCH LANDS OF COMPENSATION
AGREED TO BY THE CLAIMANT; AND (5) CLAIMS BASED UPON FAIR AND HONORABLE
DEALINGS THAT ARE NOT RECOGNIZED BY ANY EXISTING RULE OF LAW OR
EQUITY.  NO CLAIM ACCRUING AFTER THE DATE OF THE APPROVAL OF THIS ACT
SHALL BE CONSIDERED BY THE COMMISSION. 

"ALL CLAIMS HEREUNDER MAY BE HEARD AND DETERMINED BY THE COMMISSION
NOTWITHSTANDING ANY STATUTE OF LIMITATIONS OR LACHES, BUT ALL OTHER
DEFENSES SHALL BE AVAILABLE TO THE UNITED STATES." 

FN2  THERE ARE SOUND REASONS FOR CONGRESSIONAL GENEROSITY TOWARD THE
REMNANTS OF THE ABORIGINES.  SUCH REASONS AS LEAD THE NATION TO SUCCOR
THE VANQUISHED IN ANY CONTEST.  CF. UNITED STATES V. REALTY CO., 163
U.S. 427; POPE V. UNITED STATES, 323 U.S. 1; AND 60 STAT. 1049, 1055,
SEC. 24. 

FN3  CHIPPEWA INDIANS V. UNITED STATES, 301 U.S. 358, 375-76; UNITED
STATES V. KLAMATH INDIANS, 304 U.S. 119; SHOSHONE TRIBE V. UNITED
STATES, 299 U.S. 476, 497; UNITED STATES V. CREEK NATION, 295 U.S. 103,
109-10. 

FN4  SEE SHOSHONE INDIANS V. UNITED STATES, 324 U.S. 335, 339. 

FN5  SEE MITCHEL V. UNITED STATES, 9 PET. 711, 745. 

FN6  THE TREATY OF PARIS, 1783, CONFIRMED THE SOVEREIGNTY OF THE
UNITED STATES WITHOUT RESERVATION OF INDIAN RIGHTS. 

FN7  JOHNSON V. M'INTOSH, SUPRA, AT 587-89; LONE WOLF V. HITCHCOCK,
187 U.S. 553, 568; MISSOURI, KANSAS & TEXAS RY. CO. V. ROBERTS, 152
U.S. 114, 117.  SEE TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286,
311. 

FN8  CF. DUWAMISH INDIANS V. UNITED STATES, 79 CT. CL. 530, 597-600. 

FN9  E.G. LANE V. PUEBLO OF SANTA ROSA, 249 U.S. 110, 113; UNITED
STATES V. CREEK NATION, 295 U.S. 103, 109; SHOSHONE TRIBE V. UNITED
STATES, 299 U.S. 476, 496; CHIPPEWA INDIANS V. UNITED STATES, 301 U.S.
358, 375-77. 

FN10  SEE PASSIM, LAWS OF THE COLONIAL AND STATE GOVERNMENTS,
RELATING TO INDIANS AND INDIAN AFFAIRS, FROM 1633 TO 1831, INCLUSIVE:
WITH AN APPENDIX CONTAINING THE PROCEEDINGS OF THE CONGRESS OF THE
CONFEDERATION AND THE LAWS OF CONGRESS, FROM 1800 TO 1830, ON THE SAME
SUBJECT. 

FN11  LONE WOLF V. HITCHCOCK, 187 U.S. 553, 565; TIGER V. WESTERN
INVESTMENT CO., 221 U.S. 286, 311. 

FN12  SEE S. REPS.  NOS.  571, 795, 74TH CONG., 1ST SESS.; H. REPS. 
NOS.  1085, 1134, 74TH CONG., 1ST SESS.; 79 CONG. REC. 7806, 11188,
12520. 
..END :









UNITED STATES V. FOLEY CO., 329 U.S. 64 


NO. 50.  ARGUED OCTOBER 25, 1946.  - DECIDED NOVEMBER 25, 1946.  - 105
CT. CL. 161, 63 F.SUPP.  209, REVERSED. 


1.  UNDER THE GOVERNMENT CONSTRUCTION CONTRACT HERE INVOLVED, FOR
INSTALLATION OF LIGHTING OF THE RUNWAYS OF AN AIRPORT, THE GOVERNMENT
WAS NOT LIABLE FOR DAMAGES FOR DELAY IN MAKING THE RUNWAYS AVAILABLE TO
THE CONTRACTOR, THOUGH THE DELAY PREVENTED COMPLETION WITHIN THE
SPECIFIED TIME, SINCE THE CONTRACT DID NOT OBLIGATE THE GOVERNMENT
EXPRESSLY OR IMPLIEDLY TO MAKE THE RUNWAYS AVAILABLE PROMPTLY, IT
CONTAINED PROVISIONS ANTICIPATING DELAYS CAUSED BY THE GOVERNMENT AND
PROVIDING REMEDIES OTHER THAN AN AWARD OF DAMAGES TO THE CONTRACTOR,
AND NO FAULT ACTUALLY WAS CHARGEABLE TO THE GOVERNMENT.  PP. 66-67. 

2.  THE FACT THAT NO OTHER CONTRACTOR WAS INVOLVED IN THIS CASE DOES
NOT REQUIRE A RESULT DIFFERENT FROM THAT REACHED IN CROOK CO. V. UNITED
STATES, 270 U.S. 4, AND UNITED STATES V. RICE, 317 U.S. 61.  P. 68. 

UNITED STATES V. HOWARD P. FOLEY CO., INC. 

CERTIORARI TO THE COURT OF CLAIMS. 

RESPONDENT BROUGHT SUIT IN THE COURT OF CLAIMS UPON A CONTRACT AND
WAS AWARDED A JUDGMENT AGAINST THE UNITED STATES.  105 CT. CL. 161, 63
F.SUPP.  209.  THIS COURT GRANTED CERTIORARI.  327 U.S. 777.  REVERSED,
P. 69. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE COURT OF CLAIMS RENDERED A JUDGMENT FOR THE RESPONDENT AND
AGAINST THE GOVERNMENT FOR AN ASSERTED BREACH OF A CONSTRUCTION
CONTRACT.  105 CT. CL. 161, 63 F.SUPP.  209.  WE GRANTED THE
GOVERNMENT'S PETITION FOR CERTIORARI WHICH ALLEGED THAT THE COURT OF
CLAIMS' DECISION WAS IN DIRECT CONFLICT WITH CROOK CO. V. UNITED
STATES, 270 U.S. 4, AND UNITED STATES V. RICE, 317 U.S. 61.  WE HOLD
THAT THE GOVERNMENT'S CONTENTION IS CORRECT. 

THE RESPONDENT, AN ELECTRICAL CONTRACTOR, AGREED FOR A FIXED FEE TO
SUPPLY THE MATERIALS FOR AND INSTALL A FIELD LIGHTING SYSTEM AT THE
NATIONAL AIRPORT, GRAVELLY POINT, VIRGINIA, THEN UNDER CONSTRUCTION. 
THE AGREEMENT WAS EMBODIED IN A STANDARD FORM GOVERNMENT CONTRACT. 
RESPONDENT PROMISED TO COMPLETE THE JOB WITHIN 120 DAYS AFTER NOTICE TO
PROCEED.  IN FACT THE JOB WAS NOT FINISHED UNTIL 277 DAYS AFTER NOTICE
WAS GIVEN.  THE DELAY CAME ABOUT IN THIS WAY.  THE SITE OF THE AIRPORT
WAS BEING BUILT UP FROM UNDER WATER BY A FAST BUT THEN UNIQUE METHOD OF
HYDRAULIC DREDGING.  AS PORTIONS OF THE EARTH BASE FOR THE RUNWAYS AND
TAXIWAYS SETTLED, THEY WERE TO BE PAVED AND THE SHOULDERS "ROUGH
GRADED."  AS SEGMENTS OF THIS WORK WERE FINISHED, RESPONDENT WAS TO
MOVE IN, WIRE THEM, AND INSTALL THE LIGHTING FIXTURES.  THE DREDGING
TOOK LONGER THAN GOVERNMENT ENGINEERS HAD ANTICIPATED, BECAUSE SOME OF
THE DREDGED SOIL, PROVING TO BE TOO UNSTABLE FOR RUNWAYS AND TAXIWAYS,
HAD TO BE REPLACED.  THIS IN TURN DELAYED COMPLETION OF THE RUNWAY
SEGMENT COULD NOT BE INSTALLED.  THE 157 DAYS DELAY RESULTED FROM THE
CONSEQUENTLY LONG AND IRREGULAR INTERVALS BETWEEN THE TIMES WHEN THESE
SEGMENTS WERE MADE AVAILABLE TO RESPONDENT TO DO ITS JOB.  BUT FOR
THESE DELAYS, RESPONDENT APPARENTLY COULD HAVE FINISHED ITS WORK IN 120
DAYS. 

THE COURT OF CLAIMS CONSIDERED THAT THE GOVERNMENT BREACHED ITS
CONTRACT BY FAILING TO MAKE THE RUNWAYS AVAILABLE IN TIME FOR
RESPONDENT TO DO ITS WORK WITHIN 120 DAYS.  THE JUDGMENT AGAINST THE
GOVERNMENT WAS FOR CERTAIN OVERHEAD AND ADMINISTRATIVE EXPENSES WHICH
RESPONDENT INCURRED DURING THE CONSEQUENT PERIOD OF DELAY.  FN1 

IN NO SINGLE WORD, CLAUSE, OR SENTENCE IN THE CONTRACT DOES THE
GOVERNMENT EXPRESSLY COVENANT TO MAKE THE RUNWAYS AVAILABLE TO
RESPONDENT AT ANY PARTICULAR TIME.  CF. UNITED STATES V. BLAIR, 321
U.S. 730, 733-734.  IT IS SUGGESTED THAT THE OBLIGATION OF RESPONDENT
TO COMPLETE THE JOB IN 120 DAYS CAN BE INVERTED INTO A PROMISE BY THE
GOVERNMENT NOT TO CAUSE PERFORMANCE TO BE DELAYED BEYOND THAT TIME BY
ITS NEGLIGENCE.  BUT EVEN IF THIS PROVISION STANDING ALONE COULD BE
STRETCHED TO MEAN THAT THE GOVERNMENT OBLIGATED ITSELF TO EXERCISE THE
HIGHEST DEGREE OF DILIGENCE AND THE UTMOST GOOD FAITH IN EFFORTS TO
MAKE THE RUNWAYS PROMPTLY AVAILABLE, THE FACTS OF THIS CASE WOULD SHOW
NO BREACH OF SUCH AN UNDERTAKING.  FOR THE COURT OF CLAIMS FOUND THAT
THE GOVERNMENT'S REPRESENTATIVES DID THIS WORK "WITH GREAT, IF NOT
UNUSUAL, DILIGENCE," AND THAT "NO FAULT IS OR CAN BE ATTRIBUTED TO
THEM."  CONSEQUENTLY, THE GOVERNMENT CANNOT BE HELD LIABLE UNLESS THE
CONTRACT CAN BE INTERPRETED TO IMPLY AN UNQUALIFIED WARRANTY TO MAKE
THE RUNWAYS PROMPTLY AVAILABLE. 

WE CAN FIND NO SUCH WARRANTY IF WE ARE TO BE CONSISTENT WITH OUR
CROOK AND RICE DECISIONS, SUPRA.  THE PERTINENT PROVISIONS IN THE
INSTANT CONTRACT ARE, IN EVERY RESPECT HERE MATERIAL, SUBSTANTIALLY THE
SAME AS THOSE WHICH WERE HELD IN THE FORMER CASES TO IMPOSE NO
OBLIGATION ON THE GOVERNMENT TO PAY DAMAGES FOR DELAY.  HERE, AS IN THE
FORMER CASES, THERE ARE SEVERAL CONTRACT PROVISIONS WHICH SHOWED THAT
THE PARTIES NOT ONLY ANTICIPATED THAT THE GOVERNMENT MIGHT NOT FINISH
ITS WORK AS ORIGINALLY PLANNED, BUT ALSO PROVIDED IN ADVANCE TO PROTECT
THE CONTRACTOR FROM THE CONSEQUENCES OF SUCH GOVERNMENTAL DELAY, SHOULD
IT OCCUR.  THE CONTRACT RESERVED A GOVERNMENTAL RIGHT TO MAKE CHANGES
IN THE WORK WHICH MIGHT CAUSE INTERRUPTION AND DELAY, REQUIRED
RESPONDENT TO COORDINATE HIS WORK WITH THE OTHER WORK BEING DONE ON THE
SITE, AND CLEARLY CONTEMPLATED THAT HE WOULD TAKE UP HIS WORK ON THE
RUNWAY SECTIONS AS THEY WERE INTERMITTENTLY COMPLETED AND PAVED. 
ARTICLE 9 OF THE CONTRACT, ENTITLED "DELAYS - DAMAGES," SET OUT A
PROCEDURE TO GOVERN BOTH PARTIES IN CASE OF RESPONDENT'S DELAY IN
COMPLETION, WHETHER SUCH DELAY WAS CAUSED BY RESPONDENT, THE
GOVERNMENT, OR OTHER CAUSES.  IF DELAY WERE CAUSED BY RESPONDENT, THE
GOVERNMENT COULD TERMINATE THE CONTRACT, TAKE OVER THE WORK, AND HOLD
RESPONDENT AND ITS SURETIES LIABLE.  OR, IN THE ALTERNATIVE, THE
GOVERNMENT COULD COLLECT LIQUIDATED DAMAGES.  IF, ON THE OTHER HAND,
DELAY WERE DUE TO "ACTS OF THE GOVERNMENT" OR OTHER SPECIFIED EVENTS,
INCLUDING "UNFORESEEABLE CAUSES," PROCEDURE WAS OUTLINED FOR EXTENDING
THE TIME IN WHICH RESPONDENT WAS REQUIRED TO COMPLETE ITS CONTRACT, AND
RELIEVING HIM FROM THE PENALTIES OF CONTRACT TERMINATION OR LIQUIDATED
DAMAGES. 

IN THE CROOK AND RICE CASES WE HELD THAT THE GOVERNMENT COULD NOT BE
HELD LIABLE FOR DELAY IN MAKING ITS WORK AVAILABLE TO CONTRACTORS
UNLESS THE TERMS OF THE CONTRACT IMPOSED SUCH LIABILITY.  THOSE
CONTRACTS, PRACTICALLY IDENTICAL WITH THE ONE HERE, WERE HELD TO IMPOSE
NONE.  SEE ALSO UNITED STATES V. BLAIR, SUPRA.  THE DISTINCTION WHICH
THE COURT OF CLAIMS FOUND BETWEEN THIS AND THE PRIOR CASES IS NOT IN
POINT.  IT SEEMS TO BE THIS:  IN THE CROOK AND RICE CASES THE
GOVERNMENT HAD A PRIME AND A SUBCONTRACTOR:  THE GOVERNMENT RESERVED A
RIGHT TO MAKE CHANGES BY WHICH THE PRIME CONTRACTOR MUST THEREAFTER BE
GOVERNED; THE GOVERNMENT EXERCISED THIS RIGHT; THESE CHANGES MADE IT
IMPOSSIBLE FOR THE PRIME CONTRACTOR AND ULTIMATELY THE SUBCONTRACTOR TO
DO THEIR WORK IN TIME; SINCE THE GOVERNMENT HAD RESERVED THE RIGHT
AGAINST THE PRIME CONTRACTOR TO MAKE THESE CHANGES, AND THE
SUBCONTRACTOR KNEW THIS, THE GOVERNMENT WAS NOT CONTRACTUALLY
RESPONSIBLE FOR THE DELAY.  THEREFORE IT IS SUGGESTED THAT THE
SUBCONTRACTOR IN THE RICE AND CROOK CASES COULD KNOW IN ADVANCE THAT
THE PERFORMANCE TIME WAS "PROVISIONAL," WHEREAS HERE THE CONTRACTOR HAD
REASON TO BELIEVE THAT IT WAS CERTAIN.  BUT IN THIS CASE THERE IS AMPLE
INDICATION, BOTH IN THE EXTRINSIC FACTS AND IN THE CONTRACT TERMS, THAT
CHANGES AND DELAYS WERE ANTICIPATED AND REMEDIES THEREFOR PROVIDED. 
THE CONTRACTOR HERE ONLY LACKED THE ONE ADDITIONAL INDICATION THAT
CHANGES WERE ANTICIPATED WHICH HE COULD HAVE READ FROM THE PRIME
CONTRACT HAD THERE BEEN A PRIME CONTRACT AND IF A PRIME CONTRACT HAD
BEEN AVAILABLE FOR HIM TO READ.  IF THIS BE A DISTINCTION, IT IS A
DISTINCTION WITH NO SIGNIFICANT DIFFERENCE.  THIS CONTRACT, LIKE THE
OTHERS, SHOWS THAT CHANGES AND DELAYS WERE ANTICIPATED AND PROVIDED
FOR.  THE QUESTION ON WHICH ALL THESE CASES TURN IS:  DID THE
GOVERNMENT OBLIGATE ITSELF TO PAY DAMAGES TO A CONTRACTOR SOLELY
BECAUSE OF DELAY IN MAKING THE WORK AVAILABLE?  WE HOLD AGAIN THAT IT
DID NOT FOR THE REASONS ELABORATED IN THE CROOK AND RICE DECISIONS. 
REVERSED. 

FN1  THE DAMAGES AWARDED WERE FOR THE WAGES RESPONDENT PAID
SUPERVISORY EMPLOYEES WHO STOOD BY DURING THE DELAY INTERVALS, AND FOR
CERTAIN EXPENSES OF RESPONDENT INCURRED ON ACCOUNT OF THESE EMPLOYEES
FOR UNEMPLOYMENT AND SIMILAR TAXES. 

MR. JUSTICE REED, MR. JUSTICE FRANKFURTER, AND MR. JUSTICE JACKSON
DISSENT.  IT IS ADMITTED THAT THE GOVERNMENT HAD GIVEN THE CONTRACTOR
"NOTICE TO PROCEED" WHICH IN OUR OPINION HAD THE LEGAL CONSEQUENCES SET
FORTH IN THE OPINION OF THE COURT BELOW WHOSE JUDGMENT WE WOULD
AFFIRM. 
..END :









RICHFIELD OIL CORP. V. STATE BOARD, 329 U.S. 69 


NO. 46.  ARGUED OCTOBER 24, 1946.  - DECIDED NOVEMBER 25, 1946.  - 27
CAL.2D 150, 163 P.2D 1, REVERSED. 


1.  A JUDGMENT OF THE SUPREME COURT OF CALIFORNIA REVERSING, WITHOUT
DIRECTIONS, A JUDGMENT FOR THE PLAINTIFF IN A SUIT FOR A REFUND OF A
TAX UNCONSTITUTIONALLY LEVIED ON AN EXPORT UNDER THE CALIFORNIA RETAIL
SALES TAX ACT, THE CASE HAVING BEEN TRIED ON THE PLEADINGS AND
STIPULATED FACTS AND THE STATE SUPREME COURT HAVING PASSED ON THE
ISSUES WHICH CONTROL THE LITIGATION, HELD REVIEWABLE HERE AS A "FINAL
JUDGMENT" WITHIN THE MEANING OF JUDICIAL CODE SEC. 237, 28 U.S.C. SEC.
344(A).  P. 72. 

2.  APPELLANT, WHICH WAS ENGAGED IN PRODUCING AND SELLING OIL IN
CALIFORNIA, ENTERED INTO A CONTRACT FOR THE SALE OF OIL TO THE NEW
ZEALAND GOVERNMENT.  THE OIL WAS DELIVERED BY APPELLANT FROM DOCKSIDE
TANKS INTO A VESSEL OF THE NEW ZEALAND GOVERNMENT AT A CALIFORNIA PORT;
WAS CONSIGNED TO A NEW ZEALAND OFFICIAL AT AUCKLAND; WAS TRANSPORTED TO
NEW ZEALAND; AND NONE OF IT WAS USED OR CONSUMED IN THE UNITED STATES. 
APPELLANT FILED WITH THE COLLECTOR OF CUSTOMS A SHIPPER'S EXPORT
DECLARATION; AND DID NOT COLLECT, NOR ATTEMPT TO COLLECT, ANY SALES TAX
FROM THE PURCHASER.  HELD THAT A TAX LEVIED UPON APPELLANT PURSUANT TO
THE CALIFORNIA RETAIL SALES TAX ACT AND MEASURED BY THE GROSS RECEIPTS
FROM THE TRANSACTION WAS AN IMPOST UPON AN EXPORT, WITHIN THE MEANING
OF ART. I, SEC. 10, CL. 2 OF THE FEDERAL CONSTITUTION, AND THEREFORE
UNCONSTITUTIONAL.  PP. 71-72, 75. 

3.  THE FACT THAT THE PROVISION OF THE FEDERAL CONSTITUTION THAT NO
STATE SHALL, WITHOUT THE CONSENT OF CONGRESS, LAY "ANY" TAX ON IMPORTS
OR EXPORTS SPECIFIES BUT A SINGLE EXCEPTION - "EXCEPT WHAT MAY BE
ABSOLUTELY NECESSARY FOR EXECUTING IT'S INSPECTION LAWS" - INDICATES
THAT NO OTHER QUALIFICATION OF THE ABSOLUTE PROHIBITION WAS INTENDED. 
P. 76. 

4.  THE CONSTITUTIONAL PROHIBITION AGAINST "ANY" STATE TAX ON IMPORTS
OR EXPORTS IS NOT TO BE READ AS A PROHIBITION AGAINST ANY
"DISCRIMINATORY" STATE TAX.  P. 76. 

5.  THE COMMERCE CLAUSE AND THE IMPORT-EXPORT CLAUSE OF THE
CONSTITUTION, THOUGH COMPLEMENTARY, SERVE DIFFERENT ENDS; AND THE
LIMITATIONS OF THE FORMER ARE NOT TO BE READ INTO THE LATTER.  P. 76. 

6.  THE CONSTITUTIONAL PROHIBITION OF "ANY" STATE TAX ON EXPORTS IS
NOT TO BE READ AS CONTAINING AN IMPLIED QUALIFICATION.  PP. 76-77. 

7.  THE PROCESS OF EXPORTATION COMMENCED NOT LATER THAN WHEN THE OIL
WAS DELIVERED INTO THE VESSEL OF THE FOREIGN PURCHASER.  P. 83. 

8.  THE CONSTRUCTION OF A STATE TAX LAW BY THE HIGHEST COURT OF THE
STATE IS BINDING HERE, BUT IS NOT DETERMINATIVE OF WHETHER THE TAX
DENIES THE TAXPAYER A FEDERAL RIGHT.  P. 84. 

9.  WHETHER A STATE TAX DENIES A FEDERAL RIGHT DEPENDS NOT UPON THE
STATE'S CHARACTERIZATION OF THE TAX, BUT UPON ITS OPERATION AND
EFFECT.  P. 84. 

10.  THE INCIDENT WHICH GAVE RISE TO THE ACCRUAL OF THE STATE TAX IN
THIS CASE - VIZ., THE DELIVERY OF THE OIL INTO THE VESSEL OF THE
FOREIGN PURCHASER - WAS A STEP IN THE EXPORT PROCESS.  P. 84. 

11.  THE CONSTITUTIONAL PROHIBITION OF STATE TAXES ON EXPORTS
INVOLVES MORE THAN A MERE EXEMPTION FROM TAXES LAID SPECIFICALLY UPON
THE EXPORTED GOODS THEMSELVES.  P. 85. 

RICHFIELD OIL CORP. V. STATE BOARD OF EQUALIZATION. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

APPELLANT BROUGHT SUIT IN A STATE COURT FOR A REFUND OF AN ALLEGEDLY
UNCONSTITUTIONAL STATE TAX.  A JUDGMENT FOR THE APPELLANT WAS REVERSED
BY THE STATE SUPREME COURT.  27 CAL.2D 150, 136 P.2D 1.  APPELLANT
APPEALED TO THIS COURT.  REVERSED, P. 86. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON APPEAL FROM THE SUPREME COURT OF CALIFORNIA
WHICH SUSTAINED A CALIFORNIA TAX AGAINST THE CLAIM THAT IT WAS
REPUGNANT TO ARTICLE I, SECTION 10, CLAUSE 2 OF THE CONSTITUTION OF THE
UNITED STATES.  JUDICIAL CODE SEC. 237, 28 U.S.C. SECS. 344(A), 861A. 

APPELLANT IS ENGAGED IN PRODUCING AND SELLING OIL AND OIL PRODUCTS IN
CALIFORNIA.  IT ENTERED INTO A CONTRACT WITH THE NEW ZEALAND GOVERNMENT
FOR THE SALE OF OIL.  THE PRICE WAS F.O.B. LOS ANGELES, PAYMENT IN
LONDON.  DELIVERY WAS "TO THE ORDER OF THE NAVAL SECRETARY, NAVY
OFFICE, WELLINGTON, INTO N.Z. NAVAL TANK STEAMER R.F.A. 'NUCULA' AT LOS
ANGELES, CALIFORNIA."  THE OIL WAS TO BE CONSIGNED TO THE NAVAL-OFFICER
IN-CHARGE, AUCKLAND, NEW ZEALAND.  APPELLANT CARRIED THE OIL BY PIPE
LINE FROM ITS REFINERY IN CALIFORNIA TO STORAGE TANKS AT THE HARBOR
WHERE THE NUCULA APPEARED TO RECEIVE THE OIL.  WHEN THE NUCULA HAD
DOCKED AND WAS READY TO RECEIVE THE OIL, APPELLANT PUMPED IT FROM THE
STORAGE TANKS INTO THE VESSEL.  CUSTOMARY SHIPPING DOCUMENTS WERE GIVEN
THE MASTER, INCLUDING A BILL OF LADING WHICH DESIGNATED APPELLANT AS
SHIPPER AND CONSIGNED THE OIL TO THE DESIGNATED NAVAL OFFICER IN
AUCKLAND.  PAYMENT OF THE PRICE WAS MADE IN LONDON.  THE OIL WAS
TRANSPORTED TO AUCKLAND, NO PORTION OF IT BEING USED OR CONSUMED IN THE
UNITED STATES.  APPELLANT FILED WITH THE COLLECTOR OF CUSTOMS A
SHIPPER'S EXPORT DECLARATION.  IT DID NOT COLLECT, NOR ATTEMPT TO DO
SO, ANY SALES TAX FROM THE PURCHASER.  APPELLEE ASSESSED A RETAIL SALES
TAX AGAINST APPELLANT MEASURED BY THE GROSS RECEIPTS FROM THE
TRANSACTION.  THE TAX WAS PAID UNDER PROTEST, A CLAIM FOR REFUND WAS
FILED ASSERTING THAT THE LEVY OF THE TAX VIOLATED THE PROVISIONS OF
ARTICLE I, SECTION 10, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED
STATES, AND THIS SUIT WAS BROUGHT TO OBTAIN A REFUND.  THE CALIFORNIA
SUPREME COURT, ONE JUSTICE DISSENTING, FIRST ALLOWED A RECOVERY ON THAT
GROUND.  155 P.2D 1.  AFTER A REHEARING IT REVERSED ITS POSITION AND
HELD THE TAX CONSTITUTIONAL, TWO JUSTICES DISSENTING.  27 CAL.2D 150,
163 P.2D 1. 

I. WE ARE MET AT THE OUTSET WITH THE QUESTION WHETHER THE JUDGMENT OF
THE CALIFORNIA SUPREME COURT IS A "FINAL JUDGMENT" WITHIN THE MEANING
OF THE JUDICIAL CODE SEC. 237, 28 U.S.C. SEC. 344(A).  THE CASE WAS
TRIED ON THE PLEADINGS AND STIPULATED FACTS, A JURY HAVING BEEN
WAIVED.  THE TRIAL COURT FOUND FOR APPELLANT.  THE SUPREME COURT
ORDERED THAT THE JUDGMENT "BE AND THE SAME IS HEREBY REVERSED."  THE
ARGUMENT IS THAT UNDER CALIFORNIA LAW WHERE A JUDGMENT HAS BEEN
REVERSED WITHOUT DIRECTIONS, THERE IS A NEW TRIAL; THAT ON A NEW TRIAL
APPELLANT MIGHT AMEND ITS COMPLAINT AND PRODUCE OTHER EVIDENCE; AND
THAT IF A NEW TRIAL WERE HAD, NEW OR DIFFERENT FINDINGS OF FACT MIGHT
BE MADE.  SEE ERLIN V. NATIONAL UNION FIRE INS. CO., 7 CAL.2D 547, 61
P.2D 756. 

THE DESIGNATION GIVEN THE JUDGMENT BY STATE PRACTICE IS NOT
CONTROLLING.  DEPARTMENT OF BANKING V. PINK, 317 U.S. 264, 268.  THE
QUESTION IS WHETHER IT CAN BE SAID THAT "THERE IS NOTHING MORE TO BE
DECIDED" (CLARK V. WILLIARD, 292 U.S. 112, 118), THAT THERE HAS BEEN
"AN EFFECTIVE DETERMINATION OF THE LITIGATION."  MARKET STREET RY. CO.
V. RAILROAD COMMISSION, 324 U.S. 548, 551; SEE RADIO STATION WOW V.
JOHNSON, 326 U.S. 120, 123-24.  THAT QUESTION WILL BE RESOLVED NOT ONLY
BY AN EXAMINATION OF THE ENTIRE RECORD (CLARK V. WILLIARD, SUPRA) BUT,
WHERE NECESSARY, BY RESORT TO THE LOCAL LAW TO DETERMINE WHAT EFFECT
THE JUDGMENT HAS UNDER THE STATE RULES OF PRACTICE.  BRADY V. TERMINAL
RAILROAD ASSN., 302 U.S. 678; BRADY V. SOUTHERN RY. CO., 319 U.S. 777. 
SEE BOSKEY, FINALITY OF STATE COURT JUDGMENTS UNDER THE FEDERAL
JUDICIAL CODE, 43 COL. L. REV. 1002, 1005. 

THIS SUIT IS BROUGHT UNDER THE CALIFORNIA RETAIL SALES TAX ACT, SEC.
23 AND SEC. 31, WHICH PRESCRIBES THE SOLE REMEDY FOR CHALLENGING THE
TAX.  THE PROCEDURE PRESCRIBED IS PAYMENT OF THE TAX, THE FILING OF A
CLAIM FOR REFUND WHICH SETS FORTH "THE SPECIFIC GROUNDS UPON WHICH THE
CLAIM IS FOUNDED," CAL. STATS. 1941, PP. 1328, 1329, AND, IN CASE THE
CLAIM IS DENIED, THE INSTITUTION OF A SUIT WITHIN NINETY DAYS "ON THE
GROUNDS SET FORTH IN SUCH CLAIM."  CAL. STATS. 1939, PP. 2184, 2185. 
THE CLAIM THUS FRAMES AND RESTRICTS THE ISSUES FOR THE LITIGATION. 
ALTHOUGH THE SUPREME COURT REVERSED THE JUDGMENT OF THE TRIAL COURT
WITHOUT DIRECTION, ITS DECISION CONTROLS THE DISPOSITION OF THE CASE. 
SEE ESTATE OF BAIRD, 193 CAL. 225, 223 P. 974; BANK OF AMERICA V.
SUPERIOR COURT, 20 CAL.2D 697, 128 P.2D 357.  SINCE THE FACTS HAVE BEEN
STIPULATED FN1  AND THE SUPREME COURT OF CALIFORNIA HAS PASSED ON THE
ISSUES WHICH CONTROL THE LITIGATION, WE TAKE IT THAT THERE IS NOTHING
MORE TO BE DECIDED.  THE JURISDICTIONAL OBJECTION IS THUS WITHOUT
MERIT.  SEE GULF REFINING CO. V. UNITED STATES, 269 U.S. 125, 136. 

II.  WE TURN THEN TO THE MERITS.  ARTICLE I, SECTION 10, CLAUSE 2 OF
THE CONSTITUTION PROVIDES THAT "NO STATE SHALL, WITHOUT THE CONSENT OF
THE CONGRESS, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, EXCEPT
WHAT MAY BE ABSOLUTELY NECESSARY FOR EXECUTING IT'S INSPECTION LAWS:
AND THE NET PRODUCE OF ALL DUTIES AND IMPOSTS, LAID BY ANY STATE ON
IMPORTS OR EXPORTS, SHALL BE FOR THE USE OF THE TREASURY OF THE UNITED
STATES; AND ALL SUCH LAWS SHALL BE SUBJECT TO THE REVISION AND CONTROUL
OF THE CONGRESS." 

THE SUPREME COURT OF CALIFORNIA HELD THAT THIS PROVISION DID NOT BAR
THE TAX BECAUSE THE DELIVERY OF THE OIL WHICH RESULTED IN THE PASSAGE
OF TITLE OCCURRED PRIOR TO THE COMMENCEMENT OF THE EXPORTATION.  THE
COURT SUGGESTED, AND THE APPELLEE CONCEDES, THAT A DIFFERENT RESULT
MIGHT FOLLOW IF THE OIL HAD BEEN DELIVERED TO A COMMON CARRIER; "FOR
THEN IT WOULD HAVE BEEN PLACED IN THE HANDS OF AN INSTRUMENTALITY WHOSE
SOLE PURPOSE IS TO EXPORT GOODS, THUS INDELIBLY CHARACTERIZING THE
PROCESS AS A PART OF EXPORTATION."  27 CAL.2D P. 153, 163 P.2D P. 3. 
THE COURT, IN REACHING THE CONCLUSION THAT THE TAX WAS CONSTITUTIONAL,
RESTED IN PART ON OUR RECENT DECISIONS (PARTICULARLY MCGOLDRICK V.
BERWIND-WHITE COAL MINING CO., 309 U.S. 33; DEPARTMENT OF TREASURY V.
WOOD PRESERVING CORP., 313 U.S. 62; INTERNATIONAL HARVESTER CO. V.
DEPARTMENT OF TREASURY, 322 U.S. 340) WHICH SUSTAINED THE LEVY OF
CERTAIN STATE TAXES AGAINST THE CLAIM THAT THEY VIOLATED THE COMMERCE
CLAUSE.  THE COURT CONCLUDED THAT IF THIS HAD BEEN AN INTERSTATE
TRANSACTION, IT WOULD HAVE BEEN SUBJECT TO THE TAX.  IT SAW NO GREATER
LIMITATION ON THE POWER OF THE STATES UNDER ARTICLE I, SECTION 10,
CLAUSE 2, THAN THIS COURT HAS FOUND TO EXIST UNDER THE COMMERCE
CLAUSE. 

WE DO NOT PURSUE THE INQUIRY AS TO THE VALIDITY OF THE TAX UNDER THE
COMMERCE CLAUSE.  FOR WE ARE OF THE VIEW THAT WHATEVER MIGHT BE THE
RESULT OF THAT INQUIRY, THE TAX IS UNCONSTITUTIONAL UNDER ARTICLE I,

THE TWO CONSTITUTIONAL PROVISIONS, WHILE RELATED, ARE NOT
COTERMINOUS.  TO BE SURE, A STATE TAX HAS AT TIMES BEEN HELD
UNCONSTITUTIONAL BOTH UNDER THE IMPORT-EXPORT CLAUSE AND UNDER THE
COMMERCE CLAUSE.  BROWN V. MARYLAND, 12 WHEAT.  419; CREW LEVICK CO. V.
PENNSYLVANIA, 245 U.S. 292.  BUT THERE ARE IMPORTANT DIFFERENCES
BETWEEN THE TWO.  THE INVALIDITY OF ONE DERIVES FROM THE PROHIBITION OF
TAXATION ON THE IMPORT OR EXPORT; THE VALIDITY OF THE OTHER TURNS
NOWISE ON WHETHER THE ARTICLE WAS, OR HAD EVER BEEN, AN IMPORT OR
EXPORT.  SEE HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652, 665-66, AND
CASES CITED.  MOREOVER, THE COMMERCE CLAUSE IS CAST, NOT IN TERMS OF A
PROHIBITION AGAINST TAXES, BUT IN TERMS OF A POWER ON THE PART OF
CONGRESS TO REGULATE COMMERCE.  IT IS WELL ESTABLISHED THAT THE
COMMERCE CLAUSE IS A LIMITATION UPON THE POWER OF THE STATES, EVEN IN
ABSENCE OF ACTION BY CONGRESS.  SOUTHERN PACIFIC CO. V. ARIZONA, 325
U.S. 761; MORGAN V. VIRGINIA, 328 U.S. 373.  BUT THE SCOPE OF THE
LIMITATION HAS BEEN DETERMINED BY THE COURT IN AN EFFORT TO MAINTAIN AN
AREA OF TRADE FREE FROM STATE INTERFERENCE AND AT THE SAME TIME TO MAKE
INTERSTATE COMMERCE PAY ITS WAY.  AS RECENTLY STATED IN MCGOLDRICK V.
BERWIND-WHITE COAL MINING CO., SUPRA, P. 48, THE LAW UNDER THE COMMERCE
CLAUSE HAS BEEN FASHIONED BY THE COURT IN AN EFFORT "TO RECONCILE
COMPETING CONSTITUTIONAL DEMANDS, THAT COMMERCE BETWEEN THE STATES
SHALL NOT BE UNDULY IMPEDED BY STATE ACTION, AND THAT THE POWER TO LAY
TAXES FOR THE SUPPORT OF STATE GOVERNMENT SHALL NOT BE UNDULY
CURTAILED."  THAT ACCOMMODATION HAS BEEN MADE BY UPHOLDING TAXES
DESIGNED TO MAKE INTERSTATE COMMERCE BEAR A FAIR SHARE OF THE COST OF
THE LOCAL GOVERNMENT FROM WHICH IT RECEIVES BENEFITS (SEE E.G. WESTERN
LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 254-55, AND CASES CITED;
MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., SUPRA) AND BY INVALIDATING
THOSE WHICH DISCRIMINATE AGAINST INTERSTATE COMMERCE, WHICH IMPOSE A
LEVY FOR THE PRIVILEGE OF DOING IT, WHICH PLACE AN UNDUE BURDEN ON IT.
ADAMS MFG. CO. V. STOREN, 304 U.S. 307; GWIN, WHITE & PRINCE, INC. V.
HENNEFORD, 305 U.S. 434; BEST & CO. V. MAXWELL, 311 U.S. 454; NIPPERT
V. RICHMOND, 327 U.S. 416. 

IT SEEMS CLEAR THAT WE CANNOT WRITE ANY SUCH QUALIFICATIONS INTO THE
IMPORT-EXPORT CLAUSE.  IT PROHIBITS EVERY STATE FROM LAYING "ANY" TAX
ON IMPORTS OR EXPORTS WITHOUT THE CONSENT OF CONGRESS.  ONLY ONE
EXCEPTION IS CREATED - "EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR
EXECUTING IT'S INSPECTION LAWS."  THE FACT OF A SINGLE EXCEPTION
SUGGESTS THAT NO OTHER QUALIFICATION OF THE ABSOLUTE PROHIBITION WAS
INTENDED.  IT WOULD ENTAIL A SUBSTANTIAL REVISION OF THE IMPORT-EXPORT
CLAUSE TO SUBSTITUTE FOR THE PROHIBITION AGAINST "ANY" TAX A
PROHIBITION AGAINST "ANY DISCRIMINATORY" TAX.  AS WE SHALL SEE, THE
QUESTION AS TO WHAT IS EXPORTATION IS SOMEWHAT ENTWINED WITH THE
QUESTION AS TO WHAT IS INTERSTATE COMMERCE.  BUT THE TWO CLAUSES,
THOUGH COMPLEMENTARY, SERVE DIFFERENT ENDS.  AND THE LIMITATIONS OF ONE
CANNOT BE READ INTO THE OTHER. 

IT IS SUGGESTED, HOWEVER, THAT THE HISTORY OF THE IMPORT-EXPORT
CLAUSE SHOWS THAT IT WAS DESIGNED TO PREVENT DISCRIMINATORY TAXES AND
NOT TO PRECLUDE THE LEVY OF GENERAL TAXES APPLICABLE ALIKE TO ALL
GOODS.  SUPPORT FOR THAT IS FOUND IN THE FACT THAT THIS PROVISION WAS
DEFENDED IN THE CONVENTION  FN2  AND LATER IN THE DEBATES  FN3  ON THE
GROUND THAT IT PROTECTED THE INLAND STATES FROM LEVIES BY THE COASTAL
STATES THROUGH THE TAXATION OF EXPORTS.  YET THAT FUNCTION WAS ONLY A
PHASE OF A LARGER DESIGN.  THE IMPORT-EXPORT CLAUSE WAS CONSIDERED IN
CONNECTION WITH ARTICLE I, SECTION 9, CLAUSE 5, WHICH PROVIDES THAT "NO
TAX OR DUTY SHALL BE LAID ON ARTICLES EXPORTED FROM ANY STATE."  FN4
THE PURPOSE WAS TO WITHHOLD FROM CONGRESS THE POWER TO TAX EXPORTS,
FN5  AND TO DEPRIVE ANY STATE OF THE POWER EXCEPT WITH THE CONSENT OF
CONGRESS AND EVEN THEN, IT SEEMS, TO REQUIRE THE NET PROCEEDS TO BE
PAID INTO THE FEDERAL TREASURY.  A PROPOSAL WAS MADE TO PROHIBIT THE
STATES "FROM TAXING THE PRODUCE OF OTHER STATES EXPORTED FROM THEIR
HARBOURS."  FN6  BUT THAT SUGGESTION WAS NOT FOLLOWED.  THE LANGUAGE
ADOPTED WAS SUPPORTED BY MADISON "AS PREVENTING ALL STATE IMPOSTS." 
FN7  THE QUALIFIED INTERPRETATION URGED UPON US HAS THEREFORE NO
SUBSTANTIAL SUPPORT IN THE HISTORY OF THE IMPORT-EXPORT CLAUSE. 
MOREOVER, TO INFER QUALIFICATIONS DOES NOT COMPORT WITH THE STANDARDS
FOR EXPOUNDING THE CONSTITUTION.  AS STATED BY CHIEF JUSTICE MARSHALL
IN STURGES V. CROWNINSHIELD, 4 WHEAT.  122, 202, "IT WOULD BE DANGEROUS
IN THE EXTREME TO INFER FROM EXTRINSIC CIRCUMSTANCES, THAT A CASE FOR
WHICH THE WORDS OF AN INSTRUMENT EXPRESSLY PROVIDE, SHALL BE EXEMPTED
FROM ITS OPERATION."  FOR, AS CHIEF JUSTICE TANEY SAID IN HOLMES V.
JENNISON, 14 PET. 540, 570-71: 

"IN EXPOUNDING THE CONSTITUTION OF THE UNITED STATES, EVERY WORD MUST
HAVE ITS DUE FORCE, AND APPROPRIATE MEANING; FOR IT IS EVIDENT FROM THE
WHOLE INSTRUMENT, THAT NO WORD WAS UNNECESSARILY USED, OR NEEDLESSLY
ADDED.  THE MANY DISCUSSIONS WHICH HAVE TAKEN PLACE UPON THE
CONSTRUCTION OF THE CONSTITUTION, HAVE PROVED THE CORRECTNESS OF THIS
PROPOSITION; AND SHOWN THE HIGH TALENT, THE CAUTION, AND THE FORESIGHT
OF THE ILLUSTRIOUS MEN WHO FRAMED IT.  EVERY WORD APPEARS TO HAVE BEEN
WEIGHED WITH THE UTMOST DELIBERATION, AND ITS FORCE AND EFFECT TO HAVE
BEEN FULLY UNDERSTOOD.  NO WORD IN THE INSTRUMENT, THEREFORE, CAN BE
REJECTED AS SUPERFLUOUS OR UNMEANING  ..." 

WE CANNOT, THEREFORE, READ THE PROHIBITION AGAINST "ANY" TAX ON
EXPORTS AS CONTAINING AN IMPLIED QUALIFICATION. 

THE QUESTIONS REMAIN WHETHER WE HAVE HERE AN EXPORT WITHIN THE
MEANING OF THE CONSTITUTIONAL PROVISION AND, IF SO, WHETHER THIS TAX
WAS A PROHIBITED IMPOST UPON IT. 

THE REQUIREMENT THAT FOREIGN COMMERCE BE INVOLVED (WOODRUFF V.
PARHAM, 8 WALL.  123, 136) IS MET, FOR CONCEDEDLY THE OIL WAS SOLD FOR
SHIPMENT ABROAD.  THE QUESTION WHETHER AT THE TIME THE TAX ACCRUED THE
OIL WAS AN EXPORT PRESENTS A DIFFERENT PROBLEM.  THERE ARE FEW
DECISIONS OF THE COURT UNDER ARTICLE I, SECTION 10, CLAUSE 2, WHICH
ILLUMINATE THE PROBLEM.  IN BROWN V. HOUSTON, 114 U.S. 622, LOUISIANA
TAXED COAL HELD IN THAT STATE FOR SALE.  AFTER THE TAX WAS ASSESSED
SOME OF THE COAL WAS SOLD FOR EXPORT.  THE COURT HELD THAT THE COAL
WHEN TAXED WAS NOT AN EXPORT, SAYING, PP. 629-30:    "WHEN TAXED IT WAS
NOT HELD WITH THE INTENT OR FOR THE PURPOSE OF EXPORTATION, BUT WITH
THE INTENT AND FOR THE PURPOSE OF SALE THERE, IN NEW ORLEANS.  A DUTY
ON EXPORTS MUST EITHER BE A DUTY LEVIED ON GOODS AS A CONDITION, OR BY
REASON OF THEIR EXPORTATION, OR, AT LEAST, A DIRECT TAX OR DUTY ON
GOODS WHICH ARE INTENDED FOR EXPORTATION.  WHETHER THE LAST WOULD BE A
DUTY ON EXPORTS, IT IS NOT NECESSARY TO DETERMINE.  BUT CERTAINLY,
WHERE A GENERAL TAX IS LAID ON ALL PROPERTY ALIKE, IT CANNOT BE
CONSTRUED AS A DUTY ON EXPORTS WHEN FALLING UPON GOODS NOT THEN
INTENDED FOR EXPORTATION, THOUGH THEY SHOULD HAPPEN TO BE EXPORTED
AFTERWARDS." 

IN COE V. ERROL, 116 U.S. 517, THE COURT HAD BEFORE IT A CASE UNDER
THE COMMERCE CLAUSE.  LOGS, CUT IN NEW HAMPSHIRE, WERE BEING HELD ON A
RIVER THERE FOR TRANSPORTATION TO MAINE.  NEW HAMPSHIRE'S NON
DISCRIMINATORY TAX ON THEM WAS SUSTAINED.  WHAT THE COURT SAID
CONCERNING COMMERCE IS WHAT WE DEEM TO BE THE CORRECT PRINCIPLE
GOVERNING EXPORTS:  "...  GOODS DO NOT CEASE TO BE PART OF THE GENERAL
MASS OF PROPERTY IN THE STATE, SUBJECT, AS SUCH, TO ITS JURISDICTION,
AND TO TAXATION IN THE USUAL WAY, UNTIL THEY HAVE BEEN SHIPPED, OR
ENTERED WITH A COMMON CARRIER FOR TRANSPORTATION TO ANOTHER STATE, OR
HAVE BEEN STARTED UPON SUCH TRANSPORTATION IN A CONTINUOUS ROUTE OR
JOURNEY."  P. 527. 

THAT VIEW HAS BEEN FOLLOWED IN CASES INVOLVING ARTICLE I, SECTION 9,
CLAUSE 5 OF THE CONSTITUTION, WHICH, AS WE HAVE NOTED, PROHIBITS
CONGRESS FROM LAYING ANY TAX ON "ARTICLES EXPORTED FROM ANY STATE."  IN
TURPIN V. BURGESS, 117 U.S. 504, THE COURT SUSTAINED A FEDERAL EXCISE
TAX ON MANUFACTURED TOBACCO.  THE TAX WAS LAID UPON THE GOODS BEFORE
THEY LEFT THE FACTORY.  THE COURT SAID, P. 507, "THEY WERE NOT IN
COURSE OF EXPORTATION; THEY MIGHT NEVER BE EXPORTED; WHETHER THEY WOULD
BE OR NOT WOULD DEPEND ALTOGETHER ON THE WILL OF THE MANUFACTURER." 
THE SAME RESULT WAS REACHED IN CORNELL V. COYNE, 192 U.S. 418, WHERE A
FEDERAL MANUFACTURING TAX ON FILLED CHEESE WAS SUSTAINED AGAINST THE
CLAIM THAT IT WAS A TAX LEVIED BY CONGRESS ON EXPORTS.  THE CHEESE WAS
MANUFACTURED UNDER CONTRACT FOR EXPORT.  THE COURT SAID, "THE TRUE
CONSTRUCTION OF THE CONSTITUTIONAL PROVISION IS THAT NO BURDEN BY WAY
OF TAX OR DUTY CAN BE CAST UPON THE EXPORTATION OF ARTICLES, AND DOES
NOT MEAN THAT ARTICLES EXPORTED ARE RELIEVED FROM THE PRIOR ORDINARY
BURDENS OF TAXATION WHICH REST UPON ALL PROPERTY SIMILARLY SITUATED. 
THE EXEMPTION ATTACHES TO THE EXPORT AND NOT TO THE ARTICLE BEFORE ITS
EXPORTATION."  P. 427. 

THAT LINE HAS BEEN MARKED BY OTHER DECISIONS UNDER ARTICLE I, SECTION
9, CLAUSE 5 OF THE CONSTITUTION.  THUS A FEDERAL STAMP TAX ON A FOREIGN
BILL OF LADING IS A TAX ON EXPORTS, SINCE IT IS THE EQUIVALENT OF A
DIRECT TAX ON THE ARTICLES INCLUDED IN THE BILL OF LADING.  FAIRBANK V.
UNITED STATES, 181 U.S. 283.  THE SAME IS TRUE OF FEDERAL STAMP TAXES
ON CHARTER PARTIES MADE EXCLUSIVELY FOR THE CARRIAGE OF CARGO IN
FOREIGN COMMERCE, UNITED STATES V. HVOSLEF, 237 U.S. 1, 17, FOR A TAX
ON THOSE CHARTER PARTIES IS "IN SUBSTANCE A TAX ON THE EXPORTATION; AND
A TAX ON THE EXPORTATION IS A TAX ON THE EXPORTS."  THE SAME IS
LIKEWISE TRUE OF FEDERAL STAMP TAXES ON POLICIES INSURING EXPORTS
AGAINST MARITIME RISKS.  THAMES & MERSEY INS. CO. V. UNITED STATES, 237
U.S. 19.  THE COURT STATED, P. 27: 

"THE RISE IN RATES FOR INSURANCE AS IMMEDIATELY AFFECTS EXPORTING AS
AN INCREASE IN FREIGHT RATES, AND THE TAXATION OF POLICIES INSURING
CARGOES DURING THEIR TRANSIT TO FOREIGN PORTS IS AS MUCH A BURDEN ON
EXPORTING AS IF IT WERE LAID ON THE CHARTER PARTIES, THE BILLS OF
LADING, OR THE GOODS THEMSELVES.  SUCH TAXATION DOES NOT DEAL WITH
PRELIMINARIES, OR WITH DISTINCT OR SEPARABLE SUBJECTS; THE TAX FALLS
UPON THE EXPORTING PROCESS." 

CLOSER IN POINT IS SPALDING & BROS. V. EDWARDS, 262 U.S. 66.  IT
INVOLVED A FEDERAL TAX ON BASEBALL BATS AND BALLS SOLD BY THE
MANUFACTURER.  A VENEZUELAN FIRM ORDERED A NEW YORK COMMISSION HOUSE TO
BUY A QUANTITY OF BATS AND BALLS FOR THEIR ACCOUNT.  THE NEW YORK
COMMISSION HOUSE PLACED THE ORDER WITH THE MANUFACTURER INSTRUCTING IT
TO DELIVER THE PACKAGES TO AN EXPORTING CARRIER IN NEW YORK FOR
SHIPMENT TO VENEZUELA.  THE GOODS WERE DELIVERED TO THE CARRIER AND AN
EXPORT BILL OF LADING WAS ISSUED.  IN DUE COURSE THE GOODS WERE
TRANSPORTED TO VENEZUELA.  THE ISSUE, AS STATED BY THE COURT, P. 68,
WAS "WHETHER THE SALE WAS A STEP IN EXPORTATION."  THE COURT POINTED
OUT THAT THE GOODS WOULD NOT HAVE BEEN EXEMPT FROM TAX WHILE THEY WERE
"IN PROCESS OF MANUFACTURE" THOUGH THEY WERE INTENDED FOR EXPORT BUT
THAT THEY WOULD BE EXEMPT "AFTER THEY HAD BEEN LOADED UPON THE VESSEL
FOR VENEZUELA AND THE BILL OF LADING ISSUED."  THE QUESTION WAS WHETHER
THE "EXPORT HAD BEGUN."  AFTER NOTING THAT TITLE PASSED WHEN THE GOODS
WERE DELIVERED INTO THE CARRIER'S HANDS, THE COURT STATED, PP. 69-70: 

"THE VERY ACT THAT PASSED THE TITLE AND THAT WOULD HAVE INCURRED THE
TAX HAD THE TRANSACTION BEEN DOMESTIC, COMMITTED THE GOODS TO THE
CARRIER THAT WAS TO TAKE THEM ACROSS THE SEA, FOR THE PURPOSE OF EXPORT
AND WITH THE DIRECTION TO THE FOREIGN PORT UPON THE GOODS.  THE
EXPECTED AND ACCOMPLISHED EFFECT OF THE ACT WAS TO START THEM FOR THAT
PORT.  THE FACT THAT FURTHER ACTS WERE TO BE DONE BEFORE THE GOODS
WOULD GET TO SEA DOES NOT MATTER SO LONG AS THEY WERE ONLY THE REGULAR
STEPS TO THE CONTEMPLATED RESULT." 

THE CIRCUMSTANCE THAT TITLE WAS IN THE NEW YORK COMMISSION HOUSE AND
THAT IT MIGHT CHANGE ITS MIND AND RETAIN THE GOODS FOR ITS OWN USE WAS
DISMISSED BY THE STATEMENT THAT "THEORETICAL POSSIBILITIES MAY BE LEFT
OUT OF ACCOUNT."  P. 70.  THE COURT CONCLUDED THAT IF EXPORTATION WAS
PUT AT A LATER POINT, EXPORTS WOULD NOT RECEIVE "THE LIBERAL PROTECTION
THAT HITHERTO THEY HAVE RECEIVED."  P. 70. 

THIS LINE OF CASES WAS SUMMARIZED IN WILLCUTS V. BUNN, 282 U.S. 216,
228, AS CONSTRUING THE CONSTITUTIONAL PROHIBITION AGAINST FEDERAL
TAXATION OF EXPORTS SO AS TO GIVE "IMMUNITY TO THE PROCESS OF
EXPORTATION AND TO THE TRANSACTIONS AND DOCUMENTS EMBRACED IN THAT
PROCESS....  ONLY ON THAT CONSTRUCTION CAN THE CONSTITUTIONAL SAFEGUARD
BE MAINTAINED." 

THE FACT THAT DELIVERY TO A COMMON CARRIER FOR EXPORT GAVE THE SALE
IMMUNITY IN SPALDING & BROS. V. EDWARDS, SUPRA, IS SEIZED UPON AS
STATING A RULE THAT THE PROCESS OF EXPORTATION HAS NOT STARTED UNTIL
SUCH DELIVERY HAS BEEN MADE.  AND CASES LIKE SUPERIOR OIL CO. V.
MISSISSIPPI, 280 U.S. 390, ARE RELIED UPON AS INDICATING THAT DELIVERY
TO THE PURCHASER IS NOT SUFFICIENT.  THAT CASE AROSE UNDER THE COMMERCE
CLAUSE.  MISSISSIPPI WAS UPHELD IN ITS EFFORT TO TAX A DISTRIBUTOR OR
WHOLESALER WHO PURCHASED GASOLINE AND LATER TOOK IT TO LOUISIANA FOR
SALE.  THE COURT SAID, P. 395, THAT ALTHOUGH THE COURSE OF BUSINESS
INDICATED THE LIKELY DESTINATION OF THE OIL, IT WAS "IN THE HANDS OF
THE PURCHASER TO DO WITH AS IT LIKED, AND THERE WAS NOTHING THAT IN ANY
WAY COMMITTED IT TO SENDING THE OIL TO LOUISIANA EXCEPT ITS OWN
WISHES."  THE COURT HELD, THEREFORE, THAT THE TAX WAS NOT ON GOODS
MOVING IN INTERSTATE COMMERCE.  BUT IT ADDED, P. 396, "DRAMATIC
CIRCUMSTANCES, SUCH AS A GREAT UNIVERSAL STREAM OF GRAIN FROM THE STATE
OF PURCHASE TO A MARKET ELSEWHERE, MAY AFFECT THE LEGAL CONCLUSION BY
SHOWING THE MANIFEST CERTAINTY OF THE DESTINATION AND EXHIBITING
GROUNDS OF POLICY THAT ARE ABSENT HERE." 

THE CERTAINTY THAT THE GOODS ARE HEADED TO SEA AND THAT THE PROCESS
OF EXPORTATION HAS STARTED FN8  MAY NORMALLY BE BEST EVIDENCED BY THE
FACT THAT THEY HAVE BEEN DELIVERED TO A COMMON CARRIER FOR THAT
PURPOSE.  BUT THE SAME DEGREE OF CERTAINTY MAY EXIST THOUGH NO COMMON
CARRIER IS INVOLVED.  THE PRESENT CASE IS AN EXCELLENT ILLUSTRATION. 
THE FOREIGN PURCHASER FURNISHED THE SHIP TO CARRY THE OIL ABROAD. 
DELIVERY WAS MADE INTO THE HOLD OF THE VESSEL FROM THE VENDOR'S TANKS
LOCATED AT THE DOCK.  THAT DELIVERY MARKED THE COMMENCEMENT OF THE
MOVEMENT OF THE OIL ABROAD.  IT IS TRUE, AS THE SUPREME COURT OF
CALIFORNIA OBSERVED, THAT AT THE TIME OF THE DELIVERY THE VESSEL WAS IN
CALIFORNIA WATERS AND WAS NOT BOUND FOR ITS DESTINATION UNTIL IT
STARTED TO MOVE FROM THE PORT.  BUT WHEN THE OIL WAS PUMPED INTO THE
HOLD OF THE VESSEL, IT PASSED INTO THE CONTROL OF A FOREIGN PURCHASER
AND THERE WAS NOTHING EQUIVOCAL IN THE TRANSACTION WHICH CREATED EVEN A
PROBABILITY THAT THE OIL WOULD BE DIVERTED TO DOMESTIC USE.  IT WOULD
NOT BE CLEARER THAT THE OIL HAD STARTED UPON ITS EXPORT JOURNEY HAD IT
BEEN DELIVERED TO A COMMON CARRIER AT AN INLAND POINT.  THE MEANS OF
SHIPMENT ARE UNIMPORTANT SO LONG AS THE CERTAINTY OF THE FOREIGN
DESTINATION IS PLAIN. 

IT SEEMS CLEAR UNDER THE DECISIONS WHICH WE HAVE REVIEWED INVOLVING
ARTICLE I, SECTION 9, CLAUSE 5 OF THE CONSTITUTION THAT THE
COMMENCEMENT OF THE EXPORT WOULD OCCUR NO LATER THAN THE DELIVERY OF
THE OIL INTO THE VESSEL.  AS THE MEANING OF "EXPORT" IS THE SAME UNDER
THAT CLAUSE AND THE IMPORT-EXPORT CLAUSE (SEE BROWN V. MARYLAND, SUPRA,
P. 445; TURPIN V. BURGESS, SUPRA, P. 506), THE SAME RESULT FOLLOWS
HERE. 

IT IS ARGUED, HOWEVER, THAT THE PRESENT TAX IS NOT AN IMPOST WITHIN
THE MEANING OF THE IMPORT-EXPORT CLAUSE.  THE TAX IS MEASURED BY THE
GROSS RECEIPTS OF RETAIL SALES AND IS LEVIED ON RETAILERS "FOR THE
PRIVILEGE OF SELLING TANGIBLE PERSONAL PROPERTY AT RETAIL."  CAL.
STATS. 1935, P. 1253.  THE RETAILERS ARE AUTHORIZED TO COLLECT THE TAX
FROM THE CONSUMERS.  CAL. STATS. 1933, P. 2602.  AND A SALE IS "ANY
TRANSFER OF TITLE OR POSSESSION  ...  IN ANY MANNER OR BY ANY MEANS
WHATSOEVER, OF TANGIBLE PERSONAL PROPERTY, FOR A CONSIDERATION."  CAL.
STATS. 1935, P. 1256.  THE CALIFORNIA SUPREME COURT HELD THAT THE TAX
IS AN EXCISE TAX FOR THE PRIVILEGE OF CONDUCTING A RETAIL BUSINESS
MEASURED BY THE GROSS RECEIPTS FROM SALES; THAT IT IS NOT LAID UPON THE
CONSUMER AND DOES NOT BECOME A TAX ON THE SALE OR BECAUSE OF THE SALE. 
27 CAL.2D P. 152, 163 P.2D P. 2. 

THAT CONSTRUCTION, BEING A MATTER OF STATE LAW, IS BINDING ON US.
BUT IT IS NOT DETERMINATIVE OF THE QUESTION WHETHER THE TAX DEPRIVES
THE TAXPAYER OF A FEDERAL RIGHT.  THAT ISSUE TURNS NOT ON THE
CHARACTERIZATION WHICH THE STATE HAS GIVEN THE TAX, BUT ON ITS
OPERATION AND EFFECT.  SEE ST. LOUIS SOUTHWESTERN RY. CO. V. ARKANSAS,
235 U.S. 350, 362; KANSAS CITY, FT. S. & M.R. CO. V. KANSAS, 240 U.S.
227, 231. 

APPELLEE CONCEDES THAT THE PROHIBITION OF THE IMPORT-EXPORT CLAUSE
WOULD BE VIOLATED IF THE GOODS WERE TAXED AS EXPORTS OR BECAUSE OF
THEIR EXPORTATION, OR IF THE PROCESS OF EXPORTATION WERE ITSELF TAXED. 
WE PERCEIVE, HOWEVER, NO DIFFERENCE IN SUBSTANCE BETWEEN ANY TAX SO
LABELED AND THE PRESENT TAX.  THE CALIFORNIA SUPREME COURT CONCEDED
THAT THE DELIVERY OF THE OIL "RESULTED IN THE PASSAGE OF TITLE, AND THE
COMPLETION OF THE SALE, AND THE TAXABLE INCIDENT."  27 CAL.2D P. 153,
163 P.2D PP. 2-3.  THE INCIDENT WHICH GAVE RISE TO THE ACCRUAL OF THE
TAX WAS A STEP IN THE EXPORT PROCESS. 

MOREOVER, BROWN V. MARYLAND, SUPRA, REJECTED AN ARGUMENT THAT WHILE A
STATE COULD NOT TAX IMPORTS, IT COULD TAX THE PRIVILEGE OF SELLING
IMPORTS.  CHIEF JUSTICE MARSHALL STATED, P. 444: 

"ALL MUST PERCEIVE, THAT A TAX ON THE SALE OF AN ARTICLE, IMPORTED
ONLY FOR SALE, IS A TAX ON THE ARTICLE ITSELF.  IT IS TRUE, THE STATE
MAY TAX OCCUPATIONS GENERALLY, BUT THIS TAX MUST BE PAID BY THOSE WHO
EMPLOY THE INDIVIDUAL, OR IS A TAX ON HIS BUSINESS.  THE LAWYER, THE
PHYSICIAN, OR THE MECHANIC, MUST EITHER CHARGE MORE ON THE ARTICLE IN
WHICH HE DEALS, OR THE THING ITSELF IS TAXED THROUGH HIS PERSON.  THIS
THE STATE HAS A RIGHT TO DO, BECAUSE NO CONSTITUTIONAL PROHIBITION
EXTENDS TO IT.  SO, A TAX ON THE OCCUPATION OF AN IMPORTER IS, IN LIKE
MANNER, A TAX ON IMPORTATION.  IT MUST ADD TO THE PRICE OF THE ARTICLE,
AND BE PAID BY THE CONSUMER, OR BY THE IMPORTER HIMSELF, IN LIKE MANNER
AS A DIRECT DUTY ON THE ARTICLE ITSELF WOULD BE MADE.  THIS THE STATE
HAS NOT A RIGHT TO DO, BECAUSE IT IS PROHIBITED BY THE CONSTITUTION." 

THE SAME REASONING WAS APPLIED TO EXPORTS, P. 445: 

"THE STATES ARE FORBIDDEN TO LAY A DUTY ON EXPORTS, AND THE UNITED
STATES ARE FORBIDDEN TO LAY A TAX OR DUTY ON ARTICLES EXPORTED FROM ANY
STATE.  THERE IS SOME DIVERSITY IN LANGUAGE, BUT NONE IS PERCEIVABLE IN
THE ACT WHICH IS PROHIBITED.  THE UNITED STATES HAVE THE SAME RIGHT TO
TAX OCCUPATIONS WHICH IS POSSESSED BY THE STATES.  NOW, SUPPOSE THE
UNITED STATES SHOULD REQUIRE EVERY EXPORTER TO TAKE OUT A LICENSE, FOR
WHICH HE SHOULD PAY SUCH TAX AS CONGRESS MIGHT THINK PROPER TO IMPOSE;
WOULD GOVERNMENT BE PERMITTED TO SHIELD ITSELF FROM THE JUST CENSURE TO
WHICH THIS ATTEMPT TO EVADE THE PROHIBITIONS OF THE CONSTITUTION WOULD
EXPOSE IT, BY SAYING, THAT THIS WAS A TAX ON THE PERSON, NOT ON THE
ARTICLE, AND THAT THE LEGISLATURE HAD A RIGHT TO TAX OCCUPATIONS?" 

THE PROHIBITION CONTAINED IN THE IMPORT-EXPORT CLAUSE AGAINST
TAXATION ON EXPORTS CLEARLY INVOLVES MORE THAN A MERE EXEMPTION FROM
TAXES LAID SPECIFICALLY UPON THE EXPORTED GOODS THEMSELVES.  THAT IS
TRUE OF THE CONSTITUTIONAL PROHIBITION AGAINST FEDERAL TAXES ON
EXPORTS.  UNITED STATES V. HVOSLEF, SUPRA.  WHAT WAS SAID THERE (P. 13)
IS EQUALLY APPLICABLE HERE:  "IF IT MEANT NO MORE THAN THAT, THE
OBSTRUCTIONS TO EXPORTATION WHICH IT WAS THE PURPOSE TO PREVENT COULD
READILY BE SET UP BY LEGISLATION NOMINALLY CONFORMING TO THE
CONSTITUTIONAL RESTRICTION BUT IN EFFECT OVERRIDING IT."  AND SEE ANGLO
CHILEAN NITRATE SALES CORP. V. ALABAMA, 288 U.S. 218.    WE CONCLUDE
THAT THE TAX WHICH CALIFORNIA HAS EXACTED FROM APPELLANT IS AN IMPOST
UPON AN EXPORT WITHIN THE MEANING OF ARTICLE I, SECTION 10, CLAUSE 2,
AND IS THEREFORE UNCONSTITUTIONAL.  REVERSED. 

FN1  IN CALIFORNIA A VALID STIPULATION IS BINDING UPON THE PARTIES. 
MCGUIRE V. BAIRD, 9 CAL.2D 353, 70 P.2D 915; WEBSTER V. WEBSTER, 216
CAL. 485, 14 P.2D 522; SEE 23 CAL. JURIS.  826.  IT IS AVAILABLE AT A
SECOND TRIAL UNLESS IN TERMS OTHERWISE LIMITED, NATHAN V. DIERSSEN, 146
CAL. 63, 79 P. 739; CRENSHAW V. SMITH, 74 A.C.A. 295, 168 P.2D 752; SEE
100 A.L.R. 775, AND WILL BE CONTROLLING AT THE SECOND TRIAL UNLESS THE
TRIAL COURT RELIEVES A PARTY FROM THE STIPULATION.  FIRST NATIONAL BANK
V. STANSBURY, 118 CAL. APP. 80, 5 P.2D 13.  RELIEF FROM A STIPULATION
MAY BE GRANTED IN THE SOUND DISCRETION OF THE TRIAL COURT IN CASES
WHERE THE FACTS STIPULATED HAVE CHANGED, THERE IS FRAUD, MISTAKE OF
FACT, OR OTHER SPECIAL CIRCUMSTANCE RENDERING IT UNJUST TO ENFORCE THE
STIPULATION.  SACRE V. CHALUPNIK, 188 CAL. 386, 205 P. 449; BACK V.
FARNSWORTH, 25 CAL. APP.2D 212, 77 P.2D 295; SINNOCK V. YOUNG, 61 CAL.
APP.2D 130, 142 P.2D 85; SEE 161 A.L.R. 1163.  IN THE PRESENT CASE
THERE IS NO INTIMATION IN THE RECORD OR BRIEFS OF FRAUD, EXCUSABLE
NEGLECT, OR OTHER GROUND FOR RELIEF.  INDEED THE PARTIES BOTH ACCEPT
THE STIPULATION AS ACCURATE AND COMPLETE. 

FN2  SEE 2 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION (1911), PP.
307, 359-62, 442. 

FN3  SEE PARTICULARLY MADISON'S STATEMENT, 3 ELLIOT'S DEBATES (2D
ED.)  P. 483.  AND SEE THE FEDERALIST NO. 42. 

FN4  SEE 2 FARRAND, OP. CIT., SUPRA, NOTE 2, PP. 305-08, 358-63, 441
42. 

FN5  THE CONSENSUS OF OPINION WAS EXPRESSED BY GERRY - THAT "THE
LEGISLATURE COULD NOT BE TRUSTED WITH SUCH A POWER.  IT MIGHT RUIN THE
COUNTRY.  IT MIGHT BE EXERCISED PARTIALLY, RAISING ONE AND DEPRESSING
ANOTHER PART OF IT."  SEE 2 FARRAND, OP. CIT., SUPRA, NOTE 2, P. 307. 
OR AS STATED BY SHERMAN, "A POWER TO TAX EXPORTS WOULD SHIPWRECK THE
WHOLE."  ID., P. 308. 

FN6  THIS WAS SUGGESTED BY LANGDON.  SEE 2 FARRAND, OP. CIT., SUPRA,
NOTE 2, P. 361. 

FN7  SEE 2 FARRAND, OP. CIT., SUPRA, NOTE 2, P. 442. 

FN8  SEE CARSON PETROLEUM CO. V. VIAL, 279 U.S. 95. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

RICHFIELD OIL CORPORATION, WHILE DOING BUSINESS IN CALIFORNIA, SOLD
OIL EXTRACTED FROM CALIFORNIA SOIL.  ITS PURCHASER BOUGHT THE OIL TO
TRANSPORT AND USE ABROAD.  CALIFORNIA, LIKE MANY OTHER STATES, RAISES A
LARGE PROPORTION OF ITS REVENUE BY A GENERALLY APPLIED TAX ON SALES. 
FN1 THE COURT HOLDS THAT APPLICATION OF THE CALIFORNIA SALES TAX TO
THIS TRANSACTION IS A "TAX ON EXPORTS" AND THEREFORE VIOLATES ARTICLE
I, SECTION 10, CLAUSE 2 OF THE FEDERAL CONSTITUTION.  I CANNOT AGREE. 

IN SPALDING & BROS. V. EDWARDS, 262 U.S. 66, 69, A PRECEDENT UPON
WHICH TODAY'S DECISION HEAVILY RELIES, THIS COURT SAID THAT "WITH
REGARD TO ANY TRANSACTION WE HAVE TO FIX A POINT AT WHICH, IN VIEW OF
THE PURPOSE OF THE CONSTITUTION, THE EXPORT MUST BE SAID TO BEGIN.  AS
ELSEWHERE IN THE LAW THERE WILL BE OTHER POINTS VERY NEAR TO IT ON THE
OTHER SIDE, SO THAT IF THE NECESSITY OF FIXING ONE DEFINITELY IS NOT
REMEMBERED ANY DETERMINATION MAY SEEM ARBITRARY."  THIS PRINCIPLE
ANNOUNCED IN THE SPALDING CASE SEEMS TO FOLLOW WHAT WAS SAID IN CORNELL
V. COYNE, 192 U.S. 418, 427, THAT THE CONSTITUTIONAL PROHIBITION
AGAINST A TAX ON EXPORTS WAS NOT INTENDED TO RELIEVE EXPORTED ARTICLES
"FROM THE PRIOR ORDINARY BURDENS OF TAXATION WHICH REST UPON ALL
PROPERTY SIMILARLY SITUATED."  EVERY TRANSACTION HELD BY THIS COURT TO
HAVE OCCURRED AFTER RATHER THAN BEFORE EXPORTATION BEGAN MAKES AN
ENCROACHMENT NOT ONLY ON THE POWER OF STATES TO TAX, BUT, AS THE COURT
POINTS OUT, THE FEDERAL GOVERNMENT'S AREA OF TAXATION IS ALSO
NARROWED.  THE RESULT OF SUCH A HOLDING IS ALL THE MORE SERIOUS
BECAUSE, UNLIKE THE CONSEQUENCES OF HOLDING A STATE TAX INVALID UNDER
THE COMMERCE CLAUSE, THE PROHIBITIONS AGAINST TAXING EXPORTS ARE, WITH
A MINOR EXCEPTION, PERMANENT, ABSOLUTE AND UNQUALIFIED.  AFTER TODAY'S
RULING, CONGRESS ITSELF CAN NEITHER TAX NOR PERMIT STATES TO TAX SALES
LIKE THE ONE HERE PROSCRIBED.  TO CLASSIFY SALES TRANSACTIONS AS HAVING
OCCURRED AFTER EXPORTATION BEGAN, THEREFORE, RESULTS IN CREATING AN
ISLAND OF CONSTITUTIONAL TAX IMMUNITY FOR A SUBSTANTIAL PROPORTION OF
THE PROFITABLE BUSINESS OF THE NATION.  SUCH A RESULT NOT ONLY GRANTS
TAX IMMUNITY TO MANY PROFITABLE BUSINESSES WHICH SHARE GOVERNMENTAL
PROTECTIONS FROM PAYMENT OF THEIR FAIR PART OF TAXES; IT ALSO THROWS AN
UNFAIR PART OF THE TAX BURDEN ON OTHERS.  SINCE WE CANNOT ASSUME THAT
THE FRAMERS OF THE CONSTITUTION LOOKED WITH FAVOR ON SUCH CONSEQUENCES,
WE SHOULD, BEFORE CLASSIFYING A TRANSACTION IN SUCH A WAY AS TO RENDER
A TAX ON IT UNCONSTITUTIONAL, GIVE IT THE MOST CAREFUL FACTUAL
SCRUTINY.  WE SHOULD NOT INVALIDATE SUCH A TAX UNLESS SATISFIED BEYOND
DOUBT THAT IT FALLS SQUARELY AND WHOLLY WITHIN THE AREA MARKED BY THE
CONSTITUTION FOR TAX EXEMPTION. 

THE ECONOMIC CONSEQUENCES OF SUCH SALES TAXES ARE PROBABLY ABOUT THE
SAME AS WOULD FLOW FROM A PROPERTY OR SEVERANCE TAX APPLIED TO
RICHFIELD.  FOR ALL THREE TYPES OF TAXES WOULD LIKELY BE REFLECTED IN
AN INCREASED SALES PRICE OF RICHFIELD'S OIL.  NO ONE, I SUPPOSE, WOULD
THINK OF SAYING THAT SUCH A PROPERTY OR SEVERANCE TAX WOULD BE
UNCONSTITUTIONAL AS A TAX ON EXPORTS.  THE REASON WOULD BE THAT THE
TAXABLE EVENT CLEARLY AROSE BEFORE AND NOT AFTER EXPORTATION BEGAN. 
THIS SALES TAX WAS NO MORE APPLIED AFTER EXPORT HAD ACTUALLY BEGUN THAN
A PROPERTY OR SEVERANCE TAX WOULD HAVE BEEN.  THE TAX WAS NOT EVEN
LEVIED ON AN EXPORTER OR AN EXPORTER'S AGENT OR BROKER.  RICHFIELD WAS
NEITHER.  ITS SALE OF LOCAL CALIFORNIA GOODS WAS NEGOTIATED AND
COMPLETED WHOLLY IN CALIFORNIA.  THIS PURELY INTRASTATE SALE
TRANSACTION CANNOT PROPERLY BE HELD TO HAVE LOST ITS INTRASTATE PRE
EXPORTATION STATUS BY REASON OF THE FACT THAT THE PARTIES DID NOT
INTEND "TITLE TO PASS" UNTIL THE OIL WAS DELIVERED AT THE PURCHASER'S
SHIP.  FOR FORMAL "PASSAGE OF TITLE" IS NOT AN ADEQUATE CRITERION FOR
MEASURING A STATE'S CONSTITUTIONAL POWER TO TAX SALES MADE WITHIN THE
STATE.  PRIVATE PARTIES ARE FREE TO DECIDE, SO FAR AS THEIR OWN
INTERESTS ARE CONCERNED, WHEN LEGAL TITLE SHALL BE CONSIDERED TO
"PASS."  BUT A STATE SURELY IS NOT REQUIRED BY THE CONSTITUTION TO
FORBEAR FROM TAXING THAT PART OF A SALES TRANSACTION WHICH PRECEDES THE
PARTICULAR MOMENT THE PARTIES HAVE ARBITRARILY SELECTED FOR A
CONCEPTUAL TRANSFER OF TITLE.  NOR NEED A STATE WITHHOLD THE EXERCISE
OF ITS POWER TO TAX SALES UNTIL AN ARTICLE IS DELIVERED OR PAID FOR. 
THAT DELIVERY, PERHAPS THE LAST STEP IN EXECUTING THIS AGREEMENT TO
SELL, HAPPENED TO BORDER ON THE IMAGINARY LINE WHERE THE ACTUAL
EXPORTER TOOK POSSESSION DOES NOT JUSTIFY US IN CONCLUDING THAT
THEREFORE THE WHOLE SALES TRANSACTION OCCURRED AFTER EXPORTATION. 
CONSTITUTIONAL INTERPRETATIONS WHICH MAKE SERIOUS INROADS INTO THE
POWER OF BOTH THE STATES AND THE FEDERAL GOVERNMENT TO TAX SALES MADE
BY LOCAL BUSINESSES SHOULD NOT TURN ON FINE LEGAL CONCEPTS OF WHEN
TITLE PASSED OR DELIVERY OCCURRED IN RELATION TO THE BEGINNING OF
EXPORTATION. 

CONCEDEDLY, AS THE COURT POINTS OUT, THE CONSTITUTION PROHIBITS
IMPOSITION OF STATE AND FEDERAL "IMPOSTS AND DUTIES" ON "EXPORTS."  BUT
THE CONSTITUTION DOES NOT DEFINE IN WORDS WHAT IS AN IMPOST OR TAX ON
EXPORTS AND WHAT IS NOT.  IT IS WELL KNOWN THAT TAXATION OF EXPORTS WAS
PRIMARILY FORBIDDEN BY THE CONSTITUTION AT THE INSISTENCE OF INLAND
STATES WHICH FEARED THAT SEABOARD STATES WOULD EXACT A TRIBUTE FROM ALL
GOODS SOLD IN THE INTERIOR WHICH WERE THEREAFTER TRANSPORTED THROUGH
PORTS EN ROUTE TO FOREIGN DESTINATIONS.  IT WAS NOT INTENDED TO BESTOW
A BOUNTY OF BLANKET TAX IMMUNITY UPON ALL THOSE WHO ENGAGED IN THE
PRODUCTION, PROCESSING, PURCHASE, OR SALE OF GOODS SHIPPED ABROAD. 
THERE WAS NO BROAD PURPOSE OF ENCOURAGING FOREIGN COMMERCE BY MAKING
ALL THESE PRELIMINARY STEPS TAX FREE.  THE MOTIVATION OF THIS TAX AND
ITS ECONOMIC CONSEQUENCES PLAINLY ARE NOT THOSE WHICH THE WRITERS OF
THE CONSTITUTION CONDEMNED.  THIS WAS NO TAX ON GOODS FROM AN INLAND
STATE WHICH CAME THROUGH CALIFORNIA IN TRANSIT AFTER SEVERANCE,
PROCESSING, AND SALE HAD BEEN COMPLETED.  NOR WAS IT A DISGUISED TAX ON
A PRODUCT OF CALIFORNIA SOIL OR MANUFACTURE IMPOSED SOLELY BECAUSE THE
OIL WAS INTENDED FOR A FOREIGN DESTINATION.  THE TAX WAS NOTHING MORE
THAN AN EFFORT OF CALIFORNIA TO DEFRAY A PART OF THE STATE'S EXPENSES
BY A UNIFORM SALES TAX ON ALL THOSE BUSINESSES, INCLUDING RICHFIELD,
WHICH ENJOYED CALIFORNIA'S NATURAL RESOURCES, THE LABOR OF ITS PEOPLE,
AND THE SERVICES AND PROTECTION OF ITS GOVERNMENT. 

TRUE, THE TAX WOULD IMPOSE A BURDEN ON EXPORT COMMERCE TO THE EXTENT
THAT IT INCREASED THE EXPORT PRICE OF RICHFIELD OIL.  BUT IF A TAX ON
EXPORT SALES BE UNCONSTITUTIONAL FOR IMPOSING SUCH A BURDEN, SO IS A
PROPERTY TAX OR A SEVERANCE TAX APPLIED TO RICHFIELD'S OIL ANYWHERE
FROM WELL TO CONSUMER.  FOR ALL THESE TYPES OF TAXES WOULD LIKELY BE
REFLECTED IN THE PRICE OF RICHFIELD'S OIL.  BUT THE HISTORY AND THE
EVOLUTION OF THE CONSTITUTIONAL PROHIBITION AGAINST TAXATION OF EXPORTS
MANIFEST THAT THERE WAS NO INTENTION TO SUBSIDIZE EITHER EXPORT
BUSINESSES OR FOREIGN PURCHASERS BY ANY SUCH BROAD IMMUNITY FROM STATE
AND FEDERAL TAXATION. 

I CANNOT BELIEVE THAT IT WAS THE PURPOSE OF THE CONSTITUTION TO LET
ALL GOODS DESTINED FOR SHIPMENT ABROAD ESCAPE UNIFORMLY APPLIED STATE
AND FEDERAL TAXES, NOR THAT A STATE WHOSE RESOURCES ARE DEPLETED IS
POWERLESS TO ENFORCE ITS SALES TAX IF THE DEPLETER SELLS TO CUSTOMERS
FOR IMMEDIATE SHIPMENT FOR ULTIMATE USE IN FOREIGN COUNTRIES.  NO
PERSUASIVE EVIDENCE HAS BEEN PRODUCED TO INDICATE THAT THOSE WHO WROTE
THE CONSTITUTION THOUGHT IN SUCH TERMS OR THAT THEY WOULD HAVE
HANDICAPPED THE STATE AND FEDERAL TAXING POWER IN SUCH A WAY.  AND NO
OTHER SUFFICIENTLY COGENT REASONS HAVE BEEN ADVANCED TO REQUIRE A
PRESENT INTERPRETATION WHICH SO DISARRANGES, CONFUSES, AND HANDICAPS
THE SALES TAXES OF ALL THE STATES. 

FN1  IN 1945 CALIFORNIA'S TOTAL REVENUE WAS $676,828,000.  IT
COLLECTED $242,757,000 FROM ITS SALES TAX.  CALIFORNIA STATE FINANCES
IN 1945, 1 STATE FINANCES:  1945, DEPT. OF COMMERCE, BUREAU OF THE
CENSUS (1946) 33. 
..END :























AMERICAN POWER CO. V. S.E.C., 329 U.S. 90 


ARGUED NOVEMBER 16, 1945.  REARGUED OCTOBER 14, 15, 1946.  - DECIDED
NOVEMBER 25, 1946.  - 141 F.2D 606, AFFIRMED. 


1.  SECTION 11(B)(2) OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
DIRECTS THE SECURITIES & EXCHANGE COMMISSION, AS SOON AS PRACTICABLE
AFTER JANUARY 1, 1938, "TO REQUIRE BY ORDER, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, THAT EACH REGISTERED HOLDING COMPANY, AND EACH
SUBSIDIARY COMPANY THEREOF, SHALL TAKE SUCH STEPS AS THE COMMISSION
SHALL FIND NECESSARY TO ENSURE THAT THE CORPORATE STRUCTURE OR
CONTINUED EXISTENCE OF ANY COMPANY IN THE HOLDING-COMPANY SYSTEM DOES
NOT UNDULY OR UNNECESSARILY COMPLICATE THE STRUCTURE, OR UNFAIRLY OR
INEQUITABLY DISTRIBUTE VOTING POWER AMONG SECURITY HOLDERS, OF SUCH
HOLDING-COMPANY SYSTEM."  IN A PROCEEDING INSTITUTED BY THE COMMISSION
UNDER SEC. 11(B)(2), THE COMMISSION FOUND, AFTER NOTICE AND HEARING,
THAT THE CORPORATE STRUCTURE AND CONTINUED EXISTENCE OF PETITIONERS,
TWO SUBHOLDING COMPANIES IN A HOLDING COMPANY SYSTEM, UNDULY AND
UNNECESSARILY COMPLICATED THE STRUCTURE OF THE SYSTEM AND UNFAIRLY AND
INEQUITABLY DISTRIBUTED VOTING POWER AMONG THE SECURITY HOLDERS OF THE
SYSTEM, IN VIOLATION OF THE STANDARDS OF SEC. 11(B)(2).  THE COMMISSION
THEREUPON ENTERED ORDERS REQUIRING THE DISSOLUTION OF BOTH PETITIONERS
AND REQUIRING THEM TO SUBMIT PLANS FOR EFFECTUATING THE ORDERS.  HELD
THAT THE ORDERS WERE AUTHORIZED BY SEC. 11(B)(2) AND THAT THE SECTION
AS SO APPLIED IS CONSTITUTIONAL.  PP. 96, 121. 

2.  SECTION 11(B)(2) IS A VALID EXERCISE OF THE POWER OF CONGRESS
UNDER THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 96-104. 

(A)  SECTION 11(B)(2) APPLIES ONLY TO REGISTERED HOLDING COMPANIES
AND THEIR SUBSIDIARIES.  P. 97. 

(B)  THE IMPACT OF SEC. 11(B)(2) IS LIMITED, BY REFERENCE TO THE
REGISTRATION REQUIREMENTS, TO THOSE HOLDING COMPANIES WHICH ARE IN FACT
IN THE STREAM OF INTERSTATE ACTIVITY OR THAT AFFECT COMMERCE IN MORE
STATES THAN ONE, NORTH AMERICAN CO. V. S.E.C., 327 U.S. 686, AND DEPEND
FOR THEIR VERY EXISTENCE UPON THE CONSTANT AND SYSTEMATIC USE OF THE
MAILS AND THE INSTRUMENTALITIES OF INTERSTATE COMMERCE.  P. 98. 

(C)  THE HOLDING COMPANY SYSTEM IN WHICH THE PETITIONERS ARE EMBRACED
POSSESSES AN UNDENIABLE INTERSTATE CHARACTER WHICH MAKES IT PROPERLY
SUBJECT, FROM THE STATUTORY STANDPOINT, TO THE PROVISIONS OF SEC.
11(B)(2).  P. 98. 

(D)  CONGRESS HAS POWER UNDER THE COMMERCE CLAUSE TO IMPOSE RELEVANT
CONDITIONS AND REQUIREMENTS ON THOSE WHO USE THE CHANNELS OF INTERSTATE
COMMERCE SO THAT THOSE CHANNELS WILL NOT BE CONDUITS FOR PROMOTING OR
PERPETUATING ECONOMIC EVILS.  P. 99. 

(E)  CONGRESS IS COMPLETELY UNINHIBITED BY THE COMMERCE CLAUSE IN
SELECTING THE MEANS CONSIDERED NECESSARY FOR BRINGING ABOUT THE DESIRED
CONDITIONS IN THE CHANNELS OF INTERSTATE COMMERCE.  ANY LIMITATIONS ARE
TO BE FOUND IN OTHER SECTIONS OF THE CONSTITUTION.  P. 100. 

(F)  CONGRESS HAS CONSTITUTIONAL AUTHORITY UNDER THE COMMERCE CLAUSE
TO UNDERTAKE TO SOLVE NATIONAL PROBLEMS DIRECTLY AND REALISTICALLY,
GIVING DUE RECOGNITION TO THE SCOPE OF STATE POWER.  P. 103. 

3.  SECTION 11(B)(2) DOES NOT UNCONSTITUTIONALLY DELEGATE LEGISLATIVE
POWER TO THE SECURITIES & EXCHANGE COMMISSION.  PP. 104-106. 

(A)  THE STANDARDS OF SEC. 11(B)(2), WHICH PROVIDES THAT THE
COMMISSION SHALL ACT SO AS TO ENSURE THAT THE CORPORATE STRUCTURE OR
CONTINUED EXISTENCE OF ANY COMPANY IN A PARTICULAR HOLDING COMPANY
SYSTEM DOES NOT "UNDULY OR UNNECESSARILY COMPLICATE THE STRUCTURE" OR
"UNFAIRLY OR INEQUITABLY DISTRIBUTE VOTING POWER AMONG SECURITY
HOLDERS," ARE NOT TOO INDEFINITE, IN THE LIGHT OF THE PURPOSE OF THE
ACT, ITS FACTUAL BACKGROUND AND THE STATUTORY CONTEXT IN WHICH THEY
APPEAR.  PP. 104-105. 

(B)  NECESSITY FIXES A POINT BEYOND WHICH IT IS UNREASONABLE AND
IMPRACTICABLE TO COMPEL CONGRESS TO PRESCRIBE DETAILED RULES.  IT THEN
BECOMES CONSTITUTIONALLY SUFFICIENT IF CONGRESS CLEARLY DELINEATES THE
GENERAL POLICY, THE PUBLIC AGENCY WHICH IS TO APPLY IT, AND THE
BOUNDARIES OF THIS DELEGATED AUTHORITY.  PRIVATE RIGHTS ARE PROTECTED
BY ACCESS TO THE COURTS TO TEST THE APPLICATION OF THE POLICY IN THE
LIGHT OF THESE LEGISLATIVE DECLARATIONS.  P. 105. 

(C)  UNDER THESE CIRCUMSTANCES, IT IS OF NO CONSTITUTIONAL
SIGNIFICANCE THAT THE COMMISSION, IN EXECUTING THE POLICIES OF SEC.
11(B)(2), ALSO HAS DISCRETION TO FASHION REMEDIES OF A CIVIL NATURE
NECESSARY FOR ATTAINING THE DESIRED GOALS.  P. 106. 

(D)  THE CONSTITUTION DOES NOT REQUIRE THAT THE COMMISSION TRANSLATE
THE LEGISLATIVE STANDARDS INTO FORMAL AND DETAILED RULES OF THUMB PRIOR
TO THEIR APPLICATION TO PARTICULAR CASES.  IT IS SUFFICIENT THAT THE
COMMISSION'S ACTIONS CONFORM TO THE STATUTORY LANGUAGE AND POLICY.  P.
106. 

4.  SECTION 11(B)(2) DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT.  PP. 106-108. 

(A)  IT IS NOT THE FUNCTION OF THE COURT TO REWEIGH THE FACTORS
CONSIDERED BY CONGRESS IN ENACTING THE LEGISLATION, OR TO QUESTION THE
CONCLUSION REACHED BY CONGRESS.  P. 106. 

(B)  SECTION 11(B)(2) DOES NOT ON ITS FACE AUTHORIZE OR NECESSARILY
INVOLVE ANY DESTRUCTION OF ANY VALUABLE INTERESTS WITHOUT JUST
COMPENSATION.  NORTH AMERICAN CO. V. S.E.C., 327 U.S. 686.  P. 107. 

(C)  SECTION 11(B)(2) IS NOT RENDERED VOID BY THE ABSENCE OF AN
EXPRESS PROVISION FOR NOTICE AND OPPORTUNITY FOR HEARING TO SECURITY
HOLDERS REGARDING PROCEEDINGS UNDER THAT SECTION.  P. 107. 

(D)  THE MANAGEMENTS OF THE PETITIONERS, HAVING BEEN NOTIFIED AND
HAVING PARTICIPATED IN SEC. 11(B)(2) PROCEEDINGS, POSSESS NO STANDING
TO ASSERT THE INVALIDITY OF THAT SECTION FROM THE VIEWPOINT OF THE
SECURITY HOLDERS' CONSTITUTIONAL RIGHTS TO NOTICE AND HEARING.  P.
107. 

(E)  THE COMMISSION IS BOUND UNDER THE STATUTE TO GIVE NOTICE AND
OPPORTUNITY FOR HEARING TO CONSUMERS, INVESTORS AND OTHER PERSONS
WHENEVER CONSTITUTIONALLY NECESSARY.  P. 108. 

(F)  SECTION 11(B)(2), FAIRLY CONSTRUED, NEITHER EXPRESSLY NOR
IMPLIEDLY AUTHORIZES UNCONSTITUTIONAL PROCEDURE.  P. 108. 

5.  THE RECORD AMPLY SUPPORTS THE COMMISSION'S FINDINGS THAT THE
CORPORATE STRUCTURES AND CONTINUED EXISTENCE OF PETITIONERS UNDULY AND
UNNECESSARILY COMPLICATE THE HOLDING COMPANY SYSTEM IN WHICH THEY ARE
SUBHOLDING COMPANIES, AND UNFAIRLY AND INEQUITABLY DISTRIBUTE VOTING
POWER AMONG THE SECURITY HOLDERS OF THAT SYSTEM.  PP. 108-112. 

6.  THE COMMISSION'S CHOICE OF THE DISSOLUTION OF PETITIONERS AS
"NECESSARY TO ENSURE" EFFECTUATION OF THE ACT WAS AUTHORIZED AND MAY
NOT BE SET ASIDE ON JUDICIAL REVIEW.  PP. 112-118. 

(A)  WHERE CONGRESS HAS ENTRUSTED AN ADMINISTRATIVE AGENCY WITH THE
RESPONSIBILITY OF SELECTING THE MEANS OF ACHIEVING THE STATUTORY
POLICY, THE RELATION OF REMEDY TO POLICY IS PECULIARLY A MATTER FOR
ADMINISTRATIVE COMPETENCE.  P. 112. 

(B)  ONLY IF THE REMEDY CHOSEN IS UNWARRANTED IN LAW OR WITHOUT
JUSTIFICATION IN FACT SHOULD A COURT INTERVENE.  PP. 112-113. 

(C)  DISSOLUTION OF A HOLDING COMPANY OR A SUBHOLDING COMPANY IS
CONTEMPLATED AND AUTHORIZED BY SEC. 11(B)(2) AS A POSSIBLE REMEDY.  P.
113. 

(D)  THE PHRASE "IN THE HOLDING-COMPANY SYSTEM" DOES NOT LIMIT THE
AUTHORITY OF THE COMMISSION TO ORDERS REMOVING A PARTICULAR COMPANY
FROM THE HOLDING COMPANY SYSTEM OF WHICH IT IS A PART BUT PERMITS AN
ORDER TERMINATING ITS CORPORATE EXISTENCE.  P. 113. 

(E)  THE LEGISLATIVE HISTORY OF THE ACT COMPELS THE CONCLUSION THAT
DISSOLUTION IS ONE OF THE REMEDIES CONTEMPLATED BY SEC. 11(B)(2) AND
THAT ITS CHOICE FALLS WITHIN THE ALLOWABLE AREA OF THE COMMISSION'S
DISCRETION.  PP. 114-115. 

(F)  THE COMMISSION'S CHOICE OF DISSOLUTION WITH RESPECT TO THE
PETITIONERS IS NOT SO LACKING IN REASONABLENESS AS TO CONSTITUTE AN
ABUSE OF DISCRETION.  P. 115. 

(G)  DISSOLUTION IS NOT SO DRASTIC A REMEDY AS TO BE UNREASONABLE. 
P. 116. 

(H)  SINCE THE COMMISSION'S CHOICE OF DISSOLUTION OF THE PETITIONERS
HAS A RATIONAL BASIS, THE FACT THAT OTHER SOLUTIONS MIGHT HAVE BEEN
SELECTED IS IMMATERIAL.  P. 118. 

(I)  REVIEW BY THIS COURT OF THE COMMISSION'S CHOICE OF REMEDIES IS
LIMITED SOLELY TO TESTING THE PROPRIETY OF THE REMEDY SO CHOSEN FROM
THE STANDPOINT OF THE CONSTITUTION AND THE STATUTE.  P. 118. 

(J)  THE COMMISSION'S FINDING THAT THE CONTINUED EXISTENCE OF
PETITIONERS VIOLATES THE STATUTORY STANDARDS WARRANTS THE ORDER OF
THEIR DISSOLUTION, WHATEVER MAY BE THE SHORTCOMINGS OF THE PARENT
HOLDING COMPANY.  P. 118. 

7.  WHEN THE HEARINGS IN THE PROCEEDINGS INSTITUTED AGAINST THE
PETITIONERS BY THE COMMISSION UNDER SEC. 11(B)(2) HAD BEEN IN PROGRESS
FOR MORE THAN A YEAR AND THE RECORD WAS APPROACHING COMPLETION,
PETITIONERS MOVED TO CONSOLIDATE APPLICATIONS FOR APPROVAL OF PLANS
FILED BY THEM UNDER SEC. 11(E), DESIGNED TO ADJUST THE COMPANIES TO THE
STANDARDS OF SEC. 11(B)(2) WITHOUT THE NECESSITY OF DISSOLUTION.  THE
COMMISSION DEFERRED CONSIDERATION OF THE MOTIONS UNTIL IT ENTERED THE
DISSOLUTION ORDERS UNDER SEC. 11(B)(2).  IT THEN DENIED THE MOTIONS AND
REFUSED TO GRANT HEARINGS ON THE PLANS IN ADVANCE OF ITS ORDERS OF
DISSOLUTION.  IT DID THIS AFTER THOROUGH EXAMINATION OF THE PLANS AND
AFTER FINDING THAT THEY WERE INCOMPLETE AND INADEQUATE ON THEIR FACE
AND THAT THEY FAILED TO HOLD OUT ANY REAL PROMISE OF EFFECTUATING THE
STANDARDS OF SEC. 11(B)(2).  HELD THAT THERE WAS NO ERROR IN THIS
PROCEDURE.  PP. 118-119. 

(A)  THE FILING OF THE PLANS UNDER SEC. 11(E) DID NOT OUST THE
COMMISSION OF JURISDICTION TO ENTER ITS ORDERS UNDER SEC. 11(B)(2).  P.
119. 

(B)  WHERE CONSIDERATION OF PLANS FILED UNDER SEC. 11(E) LEADS THE
COMMISSION TO THE CONCLUSION THAT ON THEIR FACE THEY ARE INCOMPLETE,
INADEQUATE AND UNLIKELY TO SATISFY THE STATUTORY STANDARDS, OR WHERE
THEY ARE FOUND TO HAVE BEEN FILED SOLELY FOR PURPOSES OF DELAY, IT
WOULD BE CONTRARY TO THE STATUTORY POLICY OF PROMPT ACTION TO REQUIRE
THE COMMISSION TO HOLD HEARINGS ON THEM BEFORE ENTERING AN ORDER UNDER
SEC. 11(B)(2).  P. 120. 

(C)  TO THE EXTENT THAT ENTRY OF THE SEC. 11(B)(2) ORDERS MADE THE
PLANS FILED UNDER SEC. 11(E) MOOT OR HEARINGS THEREON UNNECESSARY, THE
RESULT IS ONE THAT IS INEVITABLE IF PROPER ACCOMMODATION IS TO BE MADE
FOR THE DIFFERENT SECTIONS OF THE ACT AND FOR THE VARIOUS STATUTORY
POLICIES.  PP. 120-121. 

(D)  MOREOVER, A SEC. 11(B)(2) PROCEEDING LEADS ONLY TO THE
EXPRESSION OF THE COMMISSION'S VIEW OF WHAT MUST BE DONE TO ENSURE
COMPLIANCE WITH THE STATUTORY STANDARDS.  PETITIONERS ARE NOT YET
FORECLOSED FROM ATTACKING THE COMMISSION'S ORDERS UNDER SEC. 11(B)(2). 
P. 121. 

AMERICAN POWER & LIGHT CO. V. SECURITIES & EXCHANGE COMMISSION. 

NO. 4.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST
CIRCUIT* . 

*TOGETHER WITH NO. 5, ELECTRIC POWER & LIGHT CORP. V. SECURITIES &
EXCHANGE COMMISSION, ON CERTIORARI TO THE SAME COURT. 

IN A PROCEEDING UNDER SEC. 11(B)(2) OF THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, THE SECURITIES & EXCHANGE COMMISSION ENTERED
ORDERS REQUIRING THE DISSOLUTION OF PETITIONERS AND REQUIRING THEM TO
SUBMIT PLANS FOR THE EFFECTUATION OF THE ORDERS.  11 S.E.C. 1146.  THE
CIRCUIT COURT OF APPEALS SUSTAINED THE ORDERS.  141 F.2D 606.  THIS
COURT GRANTED CERTIORARI.  325 U.S. 846.  AFFIRMED, P. 121. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE CONCERNED HERE WITH THE CONSTITUTIONALITY OF SEC. 11(B)(2) OF
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935  FN1  AND ITS
APPLICATION TO THE PETITIONERS, THE AMERICAN POWER & LIGHT COMPANY AND
THE ELECTRIC POWER & LIGHT CORPORATION. 

AMERICAN AND ELECTRIC ARE TWO OF THE SUBHOLDING COMPANIES IN THE
ELECTRIC BOND AND SHARE COMPANY HOLDING COMPANY SYSTEM, CERTAIN ASPECTS
OF WHICH WERE CONSIDERED BY THIS COURT IN ELECTRIC BOND & SHARE CO. V.
S.E.C., 303 U.S. 419.  THIS SYSTEM IS A PYRAMID-LIKE STRUCTURE OF WHICH
BOND AND SHARE ITSELF CONSTITUTES THE APEX, FIVE SUBHOLDING COMPANIES
(INCLUDING AMERICAN AND ELECTRIC) CREATE AN INTERMEDIATE TIER,  FN2
AND APPROXIMATELY 237 DIRECT AND INDIRECT SUBSIDIARIES OF THE LATTER
FORM THE BASE.  FROM THE STANDPOINT OF BOOK CAPITALIZATION AND ASSETS,
NUMBER OF CUSTOMERS AND AREAS SERVED BY THE OPERATING COMPANIES, AND
QUANTITY OF ELECTRICITY GENERATED AND GAS SOLD, THE BOND AND SHARE
SYSTEM CONSTITUTES THE LARGEST SINGLE PUBLIC UTILITY HOLDING COMPANY
SYSTEM REGISTERED UNDER THE ACT. 

THE PROCEEDING NOW UNDER REVIEW WAS INSTITUTED BY THE SECURITIES AND
EXCHANGE COMMISSION UNDER SEC. 11(B)(2) OF THE ACT.  AFTER APPROPRIATE
NOTICE AND HEARING, THE COMMISSION FOUND THAT THE CORPORATE STRUCTURE
AND CONTINUED EXISTENCE OF AMERICAN AND ELECTRIC UNDULY AND
UNNECESSARILY COMPLICATED THE BOND AND SHARE SYSTEM AND UNFAIRLY AND
INEQUITABLY DISTRIBUTED VOTING POWER AMONG THE SECURITY HOLDERS OF THAT
SYSTEM, IN VIOLATION OF THE STANDARDS OF SEC. 11(B)(2).  11 S.E.C.
1146.  ORDERS WERE ACCORDINGLY ENTERED REQUIRING THE DISSOLUTION OF
BOTH AMERICAN AND ELECTRIC AND REQUIRING THEM TO SUBMIT PLANS FOR THE
EFFECTUATION OF THESE ORDERS.  THE FIRST CIRCUIT COURT OF APPEALS
SUSTAINED THE COMMISSION'S ACTION IN ALL RESPECTS AND AFFIRMED ITS
ORDERS, WHILE REFUSING TO CONSIDER CERTAIN CONTENTIONS OF AMERICAN AND
ELECTRIC WHICH HAD NOT BEEN RAISED BEFORE THE COMMISSION.  141 F.2D
606.  WE GRANTED CERTIORARI BECAUSE OF THE OBVIOUS PUBLIC IMPORTANCE OF
THE ISSUES PRESENTED.  325 U.S. 846. 

                                  I. 

AT THE OUTSET, WE REJECT THE CLAIM THAT SEC. 11(B)(2), VIEWED FROM
THE STANDPOINT OF THE COMMERCE CLAUSE, IS UNCONSTITUTIONAL. 

SO FAR AS HERE PERTINENT,  FN3  SEC. 11(B)(2) DIRECTS THE SECURITIES
AND EXCHANGE COMMISSION, AS SOON AS PRACTICABLE AFTER JANUARY 1, 1938,
"TO REQUIRE BY ORDER, AFTER NOTICE AND OPPORTUNITY FOR HEARING, THAT
EACH REGISTERED HOLDING COMPANY, AND EACH SUBSIDIARY COMPANY THEREOF,
SHALL TAKE SUCH STEPS AS THE COMMISSION SHALL FIND NECESSARY TO ENSURE
THAT THE CORPORATE STRUCTURE OR CONTINUED EXISTENCE OF ANY COMPANY IN
THE HOLDING-COMPANY SYSTEM DOES NOT UNDULY OR UNNECESSARILY COMPLICATE
THE STRUCTURE, OR UNFAIRLY OR INEQUITABLY DISTRIBUTE VOTING POWER AMONG
SECURITY HOLDERS, OF SUCH HOLDING-COMPANY SYSTEM....  EXCEPT FOR THE
PURPOSE OF FAIRLY AND EQUITABLY DISTRIBUTING VOTING POWER AMONG THE
SECURITY HOLDERS OF SUCH COMPANY, NOTHING IN THIS PARAGRAPH SHALL
AUTHORIZE THE COMMISSION TO REQUIRE ANY CHANGE IN THE CORPORATE
STRUCTURE OR EXISTENCE OF ANY COMPANY WHICH IS NOT A HOLDING COMPANY,
OR OF ANY COMPANY WHOSE PRINCIPAL BUSINESS IS THAT OF A PUBLICUTILITY
COMPANY." 

LIKE SEC. 11(B)(1), ITS STATUTORY COMPANION, SEC. 11(B)(2) APPLIES
ONLY TO REGISTERED HOLDING COMPANIES AND THEIR SUBSIDIARIES.  WE NOTED
IN NORTH AMERICAN CO. V. S.E.C., 327 U.S. 686, 698, THAT BY MAKING
CERTAIN INTERSTATE TRANSACTIONS UNLAWFUL UNLESS A HOLDING COMPANY
REGISTERS WITH THE COMMISSION, SEC. 4(A), AND BY EXTENDING SEC.
11(B)(1) TO REGISTERED HOLDING COMPANIES, CONGRESS HAS EFFECTIVELY
APPLIED SEC. 11(B)(1) TO THOSE HOLDING COMPANIES THAT ARE IN FACT IN
THE STREAM OF INTERSTATE ACTIVITY OR THAT AFFECT COMMERCE IN MORE
STATES THAN ONE.  THE IDENTICAL OBSERVATIONS CAN BE MADE AS TO SEC.
11(B)(2).  ITS IMPACT IS LIKEWISE LIMITED, BY REFERENCE TO THE
REGISTRATION REQUIREMENTS, TO THOSE HOLDING COMPANIES WHICH DEPEND FOR
THEIR VERY EXISTENCE UPON THE CONSTANT AND SYSTEMATIC USE OF THE MAILS
AND THE INSTRUMENTALITIES OF INTERSTATE COMMERCE.  EFFECT IS THEREBY
GIVEN TO THE LEGISLATIVE POLICY SET FORTH IN SEC. 1(C) OF INTERPRETING
ALL PROVISIONS OF THE ACT TO MEET THE PROBLEMS AND TO ELIMINATE THE
EVILS "CONNECTED WITH PUBLIC-UTILITY HOLDING COMPANIES WHICH ARE
ENGAGED IN INTERSTATE COMMERCE OR IN ACTIVITIES WHICH DIRECTLY AFFECT
OR BURDEN INTERSTATE COMMERCE." 

THE BOND AND SHARE SYSTEM, INCLUDING AMERICAN AND ELECTRIC, POSSESSES
AN UNDENIABLE INTERSTATE CHARACTER WHICH MAKES IT PROPERLY SUBJECT,
FROM THE STATUTORY STANDPOINT, TO THE PROVISIONS OF SEC. 11(B)(2). 
THIS VAST SYSTEM EMBRACES UTILITY PROPERTIES IN NO FEWER THAN 32
STATES, FROM NEW JERSEY TO OREGON AND FROM MINNESOTA TO FLORIDA, AS
WELL AS IN 12 FOREIGN COUNTRIES.  BOND AND SHARE DOMINATES AND CONTROLS
THIS SYSTEM FROM ITS HEADQUARTERS IN NEW YORK CITY.  FN4  AS WAS THE
SITUATION IN THE NORTH AMERICAN CASE, THE PROPER CONTROL AND
FUNCTIONING OF SUCH AN EXTENSIVE MULTI-STATE NETWORK OF CORPORATIONS
NECESSITATES CONTINUOUS AND SUBSTANTIAL USE OF THE MAILS AND THE
INSTRUMENTALITIES OF INTERSTATE COMMERCE.  ONLY IN THAT WAY CAN BOND
AND SHARE, OR ITS SUBHOLDING COMPANIES OR SERVICE SUBSIDIARY, MARKET
AND DISTRIBUTE SECURITIES, CONTROL AND INFLUENCE THE VARIOUS OPERATING
COMPANIES, NEGOTIATE INTER-SYSTEM LOANS, ACQUIRE OR EXCHANGE PROPERTY,
PERFORM SERVICE CONTRACTS, OR REAP THE BENEFITS OF STOCK OWNERSHIP. 
SEE SEC. 1(A).  SEE ALSO INTERNATIONAL TEXTBOOK CO. V. PIGG, 217 U.S.
91.  MOREOVER, MANY OF THE OPERATING COMPANIES ON THE LOWER ECHELON
SELL AND TRANSMIT ELECTRIC ENERGY OR GAS IN INTERSTATE COMMERCE TO AN
EXTENT THAT CANNOT BE DESCRIBED AS SPASMODIC OR INSIGNIFICANT. 
ELECTRIC BOND & SHARE CO. V. S.E.C., SUPRA, 432-33.  FN5  SUCH
ACTIVITIES SERVE TO AUGMENT THE INTERSTATE NATURE OF THE BOND AND SHARE
SYSTEM.  AND THEY MAKE EVEN PLAINER THE FACT THAT THIS SYSTEM FALLS
WITHIN THE INTENDED SCOPE OF SEC. 11(B)(2). 

CONGRESS, OF COURSE, HAS UNDOUBTED POWER UNDER THE COMMERCE CLAUSE TO
IMPOSE RELEVANT CONDITIONS AND REQUIREMENTS ON THOSE WHO USE THE
CHANNELS OF INTERSTATE COMMERCE SO THAT THOSE CHANNELS WILL NOT BE
CONDUITS FOR PROMOTING OR PERPETUATING ECONOMIC EVILS.  NORTH AMERICAN
CO. V. S.E.C., SUPRA; UNITED STATES V. DARBY, 312 U.S. 100; BROOKS V.
UNITED STATES, 267 U.S. 432.  THUS TO THE EXTENT THAT CORPORATE
BUSINESS IS TRANSACTED THROUGH SUCH CHANNELS, AFFECTING COMMERCE IN
MORE STATES THAN ONE, CONGRESS MAY ACT DIRECTLY WITH RESPECT TO THAT
BUSINESS TO PROTECT WHAT IT CONCEIVES TO BE THE NATIONAL WELFARE.  IT
MAY PRESCRIBE APPROPRIATE REGULATIONS AND DETERMINE THE CONDITIONS
UNDER WHICH THAT BUSINESS MAY BE PURSUED.  FN6  IT MAY COMPEL CHANGES
IN THE VOTING RIGHTS AND OTHER PRIVILEGES OF STOCKHOLDERS.  FN7  IT MAY
ORDER THE DIVESTMENT OR REARRANGEMENT OF PROPERTIES.  FN8  IT MAY ORDER
THE REORGANIZATION OR DISSOLUTION OF CORPORATIONS.  FN9  IN SHORT,
CONGRESS IS COMPLETELY UNINHIBITED BY THE COMMERCE CLAUSE IN SELECTING
THE MEANS CONSIDERED NECESSARY FOR BRINGING ABOUT THE DESIRED
CONDITIONS IN THE CHANNELS OF INTERSTATE COMMERCE.  ANY LIMITATIONS ARE
TO BE FOUND IN OTHER SECTIONS OF THE CONSTITUTION.  GIBBONS V. OGDEN, 9
WHEAT.  1, 196. 

SINCE THE MANDATES OF SEC. 11(B)(2) ARE DIRECTED SOLELY TO PUBLIC
UTILITY HOLDING COMPANY SYSTEMS THAT USE THE CHANNELS OF INTERSTATE
COMMERCE, THE VALIDITY OF THAT SECTION UNDER THE COMMERCE CLAUSE
BECOMES APPARENT.  IT IS DESIGNED TO PREVENT THE USE OF THOSE CHANNELS
TO PROPAGATE AND DISSEMINATE THE EVILS WHICH HAD BEEN FOUND TO FLOW
FROM UNDULY COMPLICATED SYSTEMS AND FROM INEQUITABLE DISTRIBUTIONS OF
VOTING POWER AMONG SECURITY HOLDERS OF THE SYSTEMS.  SUCH EVILS ARE SO
INEXTRICABLY ENTWINED AROUND THE INTERSTATE BUSINESS OF THE HOLDING
COMPANY SYSTEMS AS TO PRESENT NO SERIOUS QUESTION AS TO THE POWER OF
CONGRESS UNDER THE COMMERCE CLAUSE TO ERADICATE THEM. 

IN THE EXTENSIVE STUDIES WHICH PRECEDED THE PASSAGE OF THE PUBLIC
UTILITY HOLDING COMPANY ACT, IT HAD BEEN FOUND THAT "THE MOST
DISTINCTIVE CHARACTERISTIC, AND PERHAPS THE MOST SERIOUS DEFECT OF THE
PRESENT FORM OF HOLDING-COMPANY ORGANIZATION IS THE PYRAMIDED STRUCTURE
WHICH IS FOUND IN ALL OF THE IMPORTANT HOLDING-COMPANY GROUPS
EXAMINED."  FN10  THE PYRAMIDING DEVICE IN ITS MOST COMMON FORM
CONSISTED OF INTERPOSING ONE OR MORE SUBHOLDING COMPANIES BETWEEN THE
HOLDING COMPANY AND THE OPERATING COMPANIES AND ISSUING, AT EACH LEVEL
OF THE STRUCTURE, DIFFERENT CLASSES OF STOCK WITH UNEQUAL VOTING
RIGHTS.  MOST OF THE FINANCING OF THE VARIOUS COMPANIES IN THE
STRUCTURE OCCURRED THROUGH THE SALE TO THE PUBLIC OF BONDS AND
PREFERRED STOCK HAVING LOW FIXED RETURNS AND GENERALLY CARRYING NO
VOICE IN THE MANAGEMENTS.  UNDER SUCH CIRCUMSTANCES, A RELATIVELY SMALL
BUT STRATEGIC INVESTMENT IN COMMON STOCK (WITH VOTING PRIVILEGES) IN
THE HIGHER LEVELS OF A PYRAMIDED STRUCTURE OFTEN RESULTED IN ABSOLUTE
CONTROL OF UNDERLYING OPERATING COMPANIES WITH ASSETS OF HUNDREDS OF
MILLIONS OF DOLLARS.  FN11  A TREMENDOUS "LEVERAGE" IN RELATION TO THAT
STOCK WAS THUS PRODUCED; THE EARNINGS OF THE TOP HOLDING COMPANY WERE
GREATLY MAGNIFIED BY COMPARATIVELY SMALL CHANGES IN THE EARNINGS OF THE
OPERATING COMPANIES.  THE COMMON STOCK OF THE TOP HOLDING COMPANY MIGHT
QUICKLY RISE IN VALUE AND JUST AS QUICKLY FALL, MAKING IT A NATURAL
OBJECT FOR SPECULATION AND GAMBLING.  IN MANY INSTANCES THIS CREATED
FINANCIALLY IRRESPONSIBLE MANAGEMENTS AND UNSOUND CAPITAL STRUCTURES. 
FN12  PUBLIC INVESTORS IN SUCH STOCK FOUND THEMSELVES THE INNOCENT
VICTIMS, WHILE THOSE WHO SUPPLIED MOST OF THE CAPITAL THROUGH THE
PURCHASE OF BONDS AND PREFERRED STOCK LIKEWISE SUFFERED IN ADDITION TO
BEING LARGELY DISFRANCHISED.  PRUDENT MANAGEMENT OF THE OPERATING
COMPANIES BECAME A MINOR CONSIDERATION, WITH PRESSURE BEING PLACED ON
THEM TO SUSTAIN THE EXCESSIVE CAPITALIZATION TO THE DETRIMENT OF THEIR
SERVICE TO CONSUMERS.  REDUCTION OF RATES WAS FIRMLY RESISTED.  THE
CONCLUSION WAS ACCORDINGLY REACHED BY THOSE MAKING THE STUDIES THAT THE
HIGHLY PYRAMIDED SYSTEM "IS DANGEROUS AND HAS NO JUSTIFICATION FOR
EXISTENCE"  FN13  AND "REPRESENTS THE HOLDING-COMPANY SYSTEM AT ITS
WORST."  FN14 

SUCH WAS THE GENERAL NATURE OF THE PROBLEM TO WHICH CONGRESS
ADDRESSED ITSELF IN SEC. 11(B)(2).  VARIOUS ABUSES TRACEABLE IN
SUBSTANTIAL MEASURE TO THE USE OF THE PYRAMIDING DEVICE WERE ENUMERATED
IN SEC. 1(B).  AND IT WAS SPECIFICALLY FOUND IN SEC. 1(B)(3) THAT THE
NATIONAL PUBLIC INTEREST AND THE INTERESTS OF THE INVESTORS AND
CONSUMERS ARE OR MAY BE ADVERSELY AFFECTED "WHEN CONTROL OF SUCH
(SUBSIDIARY) COMPANIES IS EXERTED THROUGH DISPROPORTIONATELY SMALL
INVESTMENT." 

THE PROBLEM WHICH UNDERLIES SEC. 11(B)(2), THEREFORE, DEALS WITH THE
VERY ESSENCE OF HOLDING COMPANY SYSTEMS.  THEIR PYRAMIDED STRUCTURES
AND THE RESULTING ABUSES, LIKE THEIR OTHER CHARACTERISTICS, REST
SQUARELY UPON AN EXTENSIVE USE OF THE MAILS AND THE INSTRUMENTALITIES
OF INTERSTATE COMMERCE.  CONVERSELY, EVERY INTERSTATE TRANSACTION OF
SUCH SYSTEMS IS IMPREGNATED IN ONE DEGREE OR ANOTHER WITH THE EFFECTS
OF COMPLICATED CORPORATE STRUCTURES AND INEQUITABLE DISTRIBUTIONS OF
VOTING POWER.  MANY OF THESE EFFECTS MAY BE INTANGIBLE AND INDISTINCT,
BUT THEY ARE NONETHELESS REAL. 

TO DENY THAT CONGRESS HAS POWER TO ELIMINATE EVILS CONNECTED WITH
PYRAMIDED HOLDING COMPANY SYSTEMS, EVILS WHICH HAVE BEEN FOUND TO BE
PROMOTED AND TRANSMITTED BY MEANS OF INTERSTATE COMMERCE, IS TO DENY
THAT CONGRESS CAN EFFECTIVELY DEAL WITH PROBLEMS CONCERNING THE WELFARE
OF THE NATIONAL ECONOMY.  WE CANNOT DENY THAT POWER.  RATHER WE
REAFFIRM ONCE MORE THE CONSTITUTIONAL AUTHORITY RESIDENT IN CONGRESS BY
VIRTUE OF THE COMMERCE CLAUSE TO UNDERTAKE TO SOLVE NATIONAL PROBLEMS
DIRECTLY AND REALISTICALLY, GIVING DUE RECOGNITION TO THE SCOPE OF
STATE POWER.  THAT FOLLOWS FROM THE FACT THAT THE FEDERAL COMMERCE
POWER IS AS BROAD AS THE ECONOMIC NEEDS OF THE NATION.  NORTH AMERICAN
CO. V. S.E.C., SUPRA.

                                 II. 

WE LIKEWISE REJECT THE CLAIM THAT SEC. 11(B)(2) CONSTITUTES AN
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER TO THE SECURITIES AND
EXCHANGE COMMISSION BECAUSE OF AN ALLEGED ABSENCE OF ANY ASCERTAINABLE
STANDARDS FOR GUIDANCE IN CARRYING OUT ITS FUNCTIONS. 

TO ENSURE THAT THE CORPORATE STRUCTURE OR CONTINUED EXISTENCE OF ANY
COMPANY IN A PARTICULAR HOLDING COMPANY SYSTEM DOES NOT "UNDULY OR
UNNECESSARILY COMPLICATE THE STRUCTURE" OR "UNFAIRLY OR INEQUITABLY
DISTRIBUTE VOTING POWER AMONG SECURITY HOLDERS."  IT IS ARGUED THAT
THESE PHRASES ARE UNDEFINED BY THE ACT, ARE LEGALLY MEANINGLESS IN
THEMSELVES AND CARRY WITH THEM NO HISTORICALLY DEFINED CONCEPTS.  AS A
RESULT, IT IS SAID, THE COMMISSION IS FORCED TO USE ITS UNLIMITED WHIM
TO DETERMINE COMPLIANCE OR NON-COMPLIANCE WITH SEC. 11(B)(2); AND IN
FRAMING ITS ORDERS, THE COMMISSION HAS UNFETTERED DISCRETION TO DECIDE
WHOSE PROPERTY SHALL BE TAKEN OR DESTROYED AND TO WHAT EXTENT. 
OBJECTION IS ALSO MADE ON THE SCORE THAT NO STANDARDS HAVE BEEN
DEVELOPED OR ANNOUNCED BY THE COMMISSION WHICH JUSTIFY ITS ACTION IN
THIS CASE.    THESE CONTENTIONS ARE WITHOUT MERIT.  EVEN STANDING
ALONE, STANDARDS IN TERMS OF UNDULY COMPLICATED CORPORATE STRUCTURES
AND INEQUITABLE DISTRIBUTIONS OF VOTING POWER CANNOT BE SAID TO BE
UTTERLY WITHOUT MEANING, ESPECIALLY TO THOSE FAMILIAR WITH CORPORATE
REALITIES.  BUT THESE STANDARDS NEED NOT BE TESTED IN ISOLATION.  THEY
DERIVE MUCH MEANINGFUL CONTENT FROM THE PURPOSE OF THE ACT, ITS FACTUAL
BACKGROUND AND THE STATUTORY CONTEXT IN WHICH THEY APPEAR.  SEE
INTERMOUNTAIN RATE CASES, 234 U.S. 476.  FROM THESE SOURCES - FROM THE
MANIFOLD EVILS REVEALED BY THE LEGISLATIVE INVESTIGATIONS, THE EXPRESS
RECITAL OF EVILS IN SEC. 1(B) OF THE ACT, THE GENERAL POLICY
DECLARATIONS OF CONGRESS IN SEC. 1(C), THE STANDARDS FOR NEW SECURITY
ISSUES SET FORTH IN SEC. 7, THE CONDITIONS FOR ACQUISITIONS OF
PROPERTIES AND SECURITIES PRESCRIBED IN SEC. 10, AND THE NATURE OF THE
INQUIRIES CONTEMPLATED BY SEC. 11(A) - A VERITABLE CODE OF RULES
REVEALS ITSELF FOR THE COMMISSION TO FOLLOW IN GIVING EFFECT TO THE
STANDARDS OF SEC. 11(B)(2).  THESE STANDARDS ARE CERTAINLY NO LESS
DEFINITE IN NATURE THAN THOSE SPEAKING IN OTHER CONTEXTS IN TERMS OF
"PUBLIC INTEREST," "JUST AND REASONABLE RATES," "UNFAIR METHODS OF
COMPETITION" OR "RELEVANT FACTORS."  THE APPROVAL WHICH THIS COURT HAS
GIVEN IN THE PAST TO THOSE STANDARDS THUS COMPELS THE SANCTIONING OF
THE ONES IN ISSUE.  SEE NEW YORK CENTRAL SECURITIES CORP. V. UNITED
STATES, 287 U.S. 12, 24-25; YAKUS V. UNITED STATES, 321 U.S. 414, 419
27, AND CASES CITED. 

THE JUDICIAL APPROVAL ACCORDED THESE "BROAD" STANDARDS FOR
ADMINISTRATIVE ACTION IS A REFLECTION OF THE NECESSITIES OF MODERN
LEGISLATION DEALING WITH COMPLEX ECONOMIC AND SOCIAL PROBLEMS.  SEE
SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 398.  THE
LEGISLATIVE PROCESS WOULD FREQUENTLY BOG DOWN IF CONGRESS WERE
CONSTITUTIONALLY REQUIRED TO APPRAISE BEFOREHAND THE MYRIAD SITUATIONS
TO WHICH IT WISHES A PARTICULAR POLICY TO BE APPLIED AND TO FORMULATE
SPECIFIC RULES FOR EACH SITUATION.  NECESSITY THEREFORE FIXES A POINT
BEYOND WHICH IT IS UNREASONABLE AND IMPRACTICABLE TO COMPEL CONGRESS TO
PRESCRIBE DETAILED RULES; IT THEN BECOMES CONSTITUTIONALLY SUFFICIENT
IF CONGRESS CLEARLY DELINEATES THE GENERAL POLICY, THE PUBLIC AGENCY
WHICH IS TO APPLY IT, AND THE BOUNDARIES OF THIS DELEGATED AUTHORITY. 
PRIVATE RIGHTS ARE PROTECTED BY ACCESS TO THE COURTS TO TEST THE
APPLICATION OF THE POLICY IN THE LIGHT OF THESE LEGISLATIVE
DECLARATIONS.  SUCH IS THE SITUATION HERE. 

UNDER THESE CIRCUMSTANCES, IT IS OF NO CONSTITUTIONAL SIGNIFICANCE
THAT THE COMMISSION, IN EXECUTING THE POLICIES OF SEC. 11(B)(2), ALSO
HAS DISCRETION TO FASHION REMEDIES OF A CIVIL NATURE NECESSARY FOR
ATTAINING THE DESIRED GOALS.  SEE PHELPS DODGE CORP. V. LABOR BOARD,
313 U.S. 177, 194.  THE LEGISLATIVE POLICIES AND STANDARDS BEING CLEAR,
JUDICIAL REVIEW OF THE REMEDIES ADOPTED BY THE COMMISSION SAFEGUARDS
AGAINST STATUTORY OR CONSTITUTIONAL EXCESSES. 

NOR IS THERE ANY CONSTITUTIONAL REQUIREMENT THAT THE LEGISLATIVE
STANDARDS BE TRANSLATED BY THE COMMISSION INTO FORMAL AND DETAILED
RULES OF THUMB PRIOR TO THEIR APPLICATION TO A PARTICULAR CASE.  IF
THAT AGENCY WISHES TO PROCEED BY THE MORE FLEXIBLE CASE-BY-CASE METHOD,
THE CONSTITUTION OFFERS NO OBSTACLE.  ALL THAT CAN BE REQUIRED IS THAT
THE COMMISSION'S ACTIONS CONFORM TO THE STATUTORY LANGUAGE AND POLICY. 

                   III. 

OUR DECISION IN NORTH AMERICAN CO. V. S.E.C., SUPRA, LARGELY DISPOSES
OF THE OBJECTIONS TO SEC. 11(B)(2) ON THE BASIS OF THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT. 

PROPERTY INTERESTS OF HOLDING COMPANIES AND THEIR INVESTORS; IT MAY
EVEN DESTROY WHATEVER RIGHT THERE IS TO CONTINUED CORPORATE EXISTENCE
ON THE PART OF A HOLDING COMPANY THAT IS FOUND TO COMPLICATE A SYSTEM
UNNECESSARILY AND TO SERVE NO USEFUL FUNCTION.  BUT CONGRESS CAREFULLY
CONSIDERED THESE VARIOUS INTERESTS AND FOUND THEM "OUTWEIGHED BY THE
POLITICAL AND GENERAL ECONOMIC DESIRABILITY OF BREAKING UP
CONCENTRATIONS OF FINANCIAL POWER IN THE UTILITY FIELD TOO BIG TO BE
EFFECTIVELY REGULATED IN THE INTEREST OF EITHER THE CONSUMER OR THE
INVESTOR AND TOO BIG TO PERMIT THE FUNCTIONING OF DEMOCRATIC
INSTITUTIONS."  N15  IT IS NOT OUR FUNCTION TO REWEIGH THESE DIVERSE
FACTORS OR TO QUESTION THE CONCLUSION REACHED BY CONGRESS.  NOR CAN WE
SAY THAT SEC. 11(B)(2) ON ITS FACE AUTHORIZES OR NECESSARILY INVOLVES
ANY DESTRUCTION OF ANY VALUABLE INTERESTS WITHOUT JUST COMPENSATION. 
THE LEGISLATIVE POLICY AND THE STATUTORY SAFEGUARDS POINTED OUT IN THE
NORTH AMERICAN CASE (PP. 709-710) NEGATIVE THAT ARGUMENT. 

EQUALLY GROUNDLESS IS THE CONTENTION THAT SEC. 11(B)(2) IS VOID IN
THE ABSENCE OF AN EXPRESS PROVISION FOR NOTICE AND OPPORTUNITY FOR
HEARING AS TO SECURITY HOLDERS REGARDING PROCEEDINGS UNDER THAT
PROPERLY ONLY BY A SECURITY HOLDER WHO HAS SUFFERED INJURY DUE TO LACK
OF NOTICE OR OPPORTUNITY FOR HEARING.  NO SECURITY HOLDER OF THAT TYPE
IS NOW BEFORE US.  THE MANAGEMENTS OF AMERICAN AND ELECTRIC ADMITTEDLY
WERE NOTIFIED AND PARTICIPATED IN THE HEARINGS AS REQUIRED BY SEC.
11(B)(2); AND THEY POSSESS NO STANDING TO ASSERT THE INVALIDITY OF THAT
RIGHTS TO NOTICE AND HEARING.  SEE TYLER V. JUDGES OF COURT OF
REGISTRATION, 179 U.S. 405, 410; HATCH V. REARDON, 204 U.S. 152, 160. 

HOWEVER, THE COMMISSION IN THIS INSTANCE ACTUALLY GAVE ALL SECURITY
HOLDERS OF AMERICAN AND ELECTRIC PUBLIC NOTICE OF THE PENDENCY OF THE
SEC. 11(B)(2) PROCEEDINGS AND INVITED THEM TO FILE APPLICATIONS FOR
INTERVENTION BEFORE A STATED TIME.  THIS WAS DONE PURSUANT TO SEC. 19,
WHICH PERMITS THE COMMISSION, IN ACCORDANCE WITH SUCH RULES AND
REGULATIONS AS IT MAY PRESCRIBE, TO ADMIT ANY REPRESENTATIVE OF
INTERESTED CONSUMERS OR INVESTORS, OR ANY OTHER APPROPRIATE PERSON, AS
A PARTY TO ANY PROCEEDING BEFORE THAT BODY.  THESE SECURITY HOLDERS
THUS RECEIVED EVERYTHING WHICH THE CONSTITUTION COULD POSSIBLY
GUARANTEE THEM IN THIS RESPECT. 

THAT THE STATUTE DOES NOT EXPRESSLY INSIST UPON WHAT IN FACT HAS BEEN
GIVEN THE SECURITY HOLDERS IS WITHOUT CONSTITUTIONAL RELEVANCE UNDER
THESE CIRCUMSTANCES.  WHEREVER POSSIBLE, STATUTES MUST BE INTERPRETED
IN ACCORDANCE WITH CONSTITUTIONAL PRINCIPLES.  HERE, IN THE ABSENCE OF
DEFINITE CONTRARY INDICATIONS, IT IS FAIR TO ASSUME THAT CONGRESS
DESIRED THAT SEC. 11(B)(2) BE LAWFULLY EXECUTED BY GIVING APPROPRIATE
NOTICE AND OPPORTUNITY FOR HEARING TO ALL THOSE CONSTITUTIONALLY
ENTITLED THERETO.  AND WHEN THAT ASSUMPTION IS ADDED TO THE PROVISIONS
OF SEC. 19, IT BECOMES QUITE EVIDENT THAT THE COMMISSION IS BOUND UNDER
THE STATUTE TO GIVE NOTICE AND OPPORTUNITY FOR HEARING TO CONSUMERS,
INVESTORS AND OTHER PERSONS WHENEVER CONSTITUTIONALLY NECESSARY.  SEE
THE JAPANESE IMMIGRANT CASE, 189 U.S. 86, 100-101. 

BUT SHOULD THE COMMISSION NEGLECT TO FOLLOW THE NECESSARY PROCEDURE
IN A PARTICULAR CASE, SUCH FAILURE WOULD AT MOST JUSTIFY AN OBJECTION
TO THE ADMINISTRATIVE DETERMINATION RATHER THAN TO THE STATUTE ITSELF. 
IT WOULD THEN BE NEEDLESS TO DO MORE THAN NULLIFY THE ACTION TAKEN IN
DISREGARD OF THE CONSTITUTIONAL RIGHTS TO NOTICE AND OPPORTUNITY FOR
HEARING.  SINCE WE DO NOT HAVE THAT SITUATION HERE, HOWEVER, WE NEED
ONLY REITERATE THAT SEC. 11(B)(2), FAIRLY CONSTRUED, NEITHER EXPRESSLY
NOR IMPLIEDLY AUTHORIZES UNCONSTITUTIONAL PROCEDURE.  IT IS THUS IMMUNE
TO ATTACK ON THAT BASIS.  SEE KENTUCKY RAILROAD TAX CASES, 115 U.S.
321; BRATTON V. CHANDLER, 260 U.S. 110; TOOMBS V. CITIZENS BANK, 281
U.S. 643.  CF. COE V. ARMOUR FERTILIZER WORKS, 237 U.S. 413; WUCHTER V.
PIZZUTTI, 276 U.S. 13. 

                                 IV. 

TURNING TO THE COMMISSION'S ACTION UNDER SEC. 11(B)(2) WITH RESPECT
TO AMERICAN AND ELECTRIC, WE FIND THAT THE RECORD AMPLY SUPPORTS THE
FINDING THAT THEIR CORPORATE STRUCTURES AND CONTINUED EXISTENCE UNDULY
AND UNNECESSARILY COMPLICATE THE BOND AND SHARE SYSTEM AND UNFAIRLY AND
INEQUITABLY DISTRIBUTE VOTING POWER AMONG THE SECURITY HOLDERS OF THAT
SYSTEM.  WE NEED DO NO MORE HERE THAN STATE THE MAJOR FACTS BEFORE THE
COMMISSION UNDERLYING THIS CRUCIAL FINDING. 

BOND AND SHARE ORGANIZED THESE TWO SUBHOLDING COMPANIES UNDER THE
LAWS OF MAINE IN 1909 AND 1925, RESPECTIVELY.  UNTIL 1935, AMERICAN AND
ELECTRIC HAD NEITHER OFFICES NOR EMPLOYEES; THEIR BOOKS WERE KEPT BY
BOND AND SHARE EMPLOYEES IN BOND AND SHARE'S OFFICES IN NEW YORK CITY. 
THEIR OFFICERS WERE EMPLOYED BY AND PAID BY BOND AND SHARE.  THEIR
SUBSIDIARIES WERE MANAGED IN EVERY DETAIL BY BOND AND SHARE.  AND
WHENEVER THEY DEALT WITH THEIR PARENT THEY WERE REPRESENTED SOLELY BY
EMPLOYEES AND COUNSEL OF BOND AND SHARE.  FUNCTIONALLY, THE COMMISSION
FOUND, AMERICAN AND ELECTRIC WERE MERE SETS OF BOOKS IN BOND AND
SHARE'S OFFICE. 

IN 1935, SHORTLY BEFORE THE EFFECTIVE DATE OF THE PUBLIC UTILITY
HOLDING COMPANY ACT, CERTAIN SUPERFICIAL CHANGES WERE MADE IN THE
ORGANIZATIONAL SET-UP OF THE BOND AND SHARE SYSTEM.  A SEPARATE SERVICE
SUBSIDIARY, EBASCO SERVICES INCORPORATED, WAS CREATED TO CONTINUE
FUNCTIONS FORMERLY CARRIED OUT BY THE BOND AND SHARE SERVICE
DEPARTMENT.  EACH OF THE SUBHOLDING COMPANIES, INCLUDING AMERICAN AND
ELECTRIC, WAS GIVEN ITS OWN SET OF OFFICERS AND EMPLOYEES AS WELL AS A
SEPARATE SUITE OF OFFICES IN THE BOND AND SHARE OFFICE BUILDING.  OTHER
MINOR CHANGES TOOK PLACE, BUT THE SYSTEM IN EFFECT CONTINUED TO OPERATE
PRECISELY AS IT HAD PRIOR TO 1935.  BOND AND SHARE STILL HAD COMPLETE
AND UNQUESTIONED CONTROL OVER AMERICAN, ELECTRIC AND THEIR OPERATING
SUBSIDIARIES. 

THERE IS AN ABSENCE OF SUBSTANTIAL EVIDENCE THAT EITHER AMERICAN OR
ELECTRIC IS PRESENTLY ABLE TO PERFORM ANY USEFUL ROLE IN THE OPERATIONS
OF ITS SUBSIDIARIES, SUCH AS ORGANIZING THEM INTO INTEGRATED SYSTEMS OR
FURNISHING THEM WITH CAPITAL OR CASH.  BOTH COMPANIES CURRENTLY HAVE
VAST ACCUMULATIONS OF UNPAID PREFERRED DIVIDENDS IN ARREARS, NOT HAVING
BEEN ABLE TO MEET DIVIDEND REQUIREMENTS IN THE TEN YEARS PRECEDING
1941.  INSTANCES OF PAST FUNCTIONS RELATING TO SUBSIDIARIES REVEAL
EITHER HARMFUL RESULTS OR THE GUIDING HAND OF BOND AND SHARE. 

THE REAL PURPOSE OF AMERICAN AND ELECTRIC, AS THE COMMISSION FOUND,
IS TO ACT AS THE LEVERAGE AND PYRAMIDING DEVICE WHEREBY BOND AND SHARE
CAN AMASS CONTROL OVER VAST SUMS CONTRIBUTED BY OTHERS AND REALIZE FOR
ITSELF LARGE EARNINGS AND PROFITS WITHOUT PROPORTIONATE INVESTMENT -
THE PRIME EVIL AT WHICH SEC. 11(B)(2) IS DIRECTED. 

BOND AND SHARE HOLDS 20.7% OF THE TOTAL VOTING STOCK OF AMERICAN,
THIS HOLDING HAVING A BOOK VALUE OF NEARLY $10,000,000 OR 3.68% OF
AMERICAN'S TOTAL CAPITALIZATION OF $270,000,000.  THROUGH THIS
INVESTMENT, BOND AND SHARE CONTROLS NOT ONLY AMERICAN BUT ALSO
AMERICAN'S 21 SUBSIDIARIES WITH A TOTAL CAPITALIZATION OF
$729,000,000.  AN INVESTMENT OF $10,000,000 THUS CONTROLS $729,000,000,
A RATIO OF 1 TO 73. 

BOND AND SHARE ALSO HOLDS 46.8% OF ELECTRIC'S TOTAL VOTING STOCK; THE
BOOK EQUITY OF THIS HOLDING AMOUNTS TO $17,500,000 OR 9.14% OF
ELECTRIC'S TOTAL CAPITALIZATION OF $192,000,000.  BOND AND SHARE IS
THEREBY ENABLED TO CONTROL NOT ONLY ELECTRIC BUT ALSO ELECTRIC'S 11
DIRECT AND 11 INDIRECT SUBSIDIARIES WITH A TOTAL CAPITALIZATION OF
$654,000,000.  AN INVESTMENT OF $17,500,000 THUS CONTROLS $654,000,000,
A RATIO OF 1 TO 37. 

THE COMMISSION, HOWEVER, MADE ALTERNATIVE CALCULATIONS WHICH GAVE
AMERICAN AND ELECTRIC THE BENEFIT OF A MORE FAVORABLE ASSUMPTION.  IT
ADJUSTED UPWARD THE BOOK FIGURES FOR BOND AND SHARE'S COMMON STOCK
INTERESTS IN THESE COMPANIES TO REFLECT THE AMOUNT BY WHICH THE VALUES
ON THE BOOKS OF THE SUBSIDIARIES EXCEEDED CORRESPONDING VALUES AT WHICH
AMERICAN AND ELECTRIC CARRIED THEIR STOCK INTEREST IN THOSE
SUBSIDIARIES.  BUT EVEN AFTER SUCH ADJUSTMENTS, BOND AND SHARE'S
INVESTMENT EQUALS ONLY 8.2% OF AMERICAN'S CAPITALIZATION AND ONLY 3.42%
OF THE BOOK VALUES OF AMERICAN'S SUBSIDIARIES; AND ITS INVESTMENT IN
ELECTRIC IS THE EQUIVALENT OF ONLY 22.25% OF ELECTRIC'S CAPITALIZATION
AND 8.72% OF THE BOOK VALUES OF ELECTRIC'S SUBSIDIARIES.  FN16 

THIS DISPROPORTION BETWEEN BOND AND SHARE'S INVESTMENT AND THE VALUE
OF THE PROPERTY CONTROLLED IS EVEN MORE ACUTE IF FURTHER ADJUSTMENTS
ARE MADE TO REFLECT THE UNCONSCIONABLE WRITE-UPS AND INADEQUATE
DEPRECIATION WHICH THE COMMISSION FOUND IN THE BOOK FIGURES OF THE
VARIOUS OPERATING COMPANIES.  AMERICAN AND ELECTRIC DISAGREE WITH MANY
OF THESE ADJUSTMENTS AND URGE THAT THE BOOK VALUES CAN BE JUSTIFIED;
AND COMPLAINT IS MADE THAT THE COMMISSION REFUSED TO CONSIDER CERTAIN
VALUATION TESTIMONY OFFERED BY AMERICAN IN THIS RESPECT.  WE DEEM IT
UNNECESSARY, HOWEVER, TO ENTER INTO THESE DISPUTED MATTERS.  EVEN WITH
THE USE OF THE BOOK VALUES, THE ATTENUATED INVESTMENT RATIO IS SUCH AS
TO JUSTIFY THE COMMISSION'S CONCLUSION THAT BOND AND SHARE'S CONTROL OF
THE OPERATING COMPANIES IS ACHIEVED "THROUGH DISPROPORTIONATELY SMALL
INVESTMENT."  ON THAT BASIS, OVER 96% OF THE INVESTMENT IN AMERICAN'S
SUBSIDIARIES IS WITHOUT EFFECTIVE VOTING REPRESENTATION, WHILE OVER 91%
OF THE BOOK VALUES OF ELECTRIC'S SUBSIDIARIES IS SIMILARLY
DISFRANCHISED.  FN17    SUCH EVIDENCE IS MORE THAN ENOUGH TO SUPPORT
THE FINDING THAT AMERICAN AND ELECTRIC ARE BUT PAPER COMPANIES WITHOUT
LEGITIMATE FUNCTIONAL PURPOSE.  THEY SERVE MERELY AS THE MECHANISM BY
WHICH BOND AND SHARE MAINTAINS A PYRAMIDED STRUCTURE CONTAINING THE
SEEDS OF ALL THE ATTENDANT EVILS CONDEMNED BY THE ACT.  IT WAS
REASONABLE, THEREFORE, FOR THE COMMISSION TO CONCLUDE THAT AMERICAN AND
ELECTRIC ARE UNDUE AND UNNECESSARY COMPLEXITIES IN THE BOND AND SHARE
SYSTEM AND THAT THEIR EXISTENCE UNFAIRLY AND INEQUITABLY DISTRIBUTES
VOTING POWER AMONG THE SECURITY HOLDERS OF THE SYSTEM. 

                                  V. 

THE MAJOR OBJECTION RAISED BY AMERICAN AND ELECTRIC RELATES TO THE
COMMISSION'S CHOICE OF DISSOLUTION AS "NECESSARY TO ENSURE" THAT THE
EVILS WOULD BE CORRECTED AND THE STANDARDS OF SEC. 11(B)(2)
EFFECTUATED.  EMPHASIS IS PLACED UPON ALTERNATIVE PLANS WHICH ARE LESS
DRASTIC IN NATURE AND WHICH ALLEGEDLY WOULD MEET THE STATUTORY
STANDARDS. 

IT IS A FUNDAMENTAL PRINCIPLE, HOWEVER, THAT WHERE CONGRESS HAS
ENTRUSTED AN ADMINISTRATIVE AGENCY WITH THE RESPONSIBILITY OF SELECTING
THE MEANS OF ACHIEVING THE STATUTORY POLICY "THE RELATION OF REMEDY TO
POLICY IS PECULIARLY A MATTER FOR ADMINISTRATIVE COMPETENCE."  PHELPS
DODGE CORP. V. LABOR BOARD, SUPRA, 194.  IN DEALING WITH THE COMPLEX
PROBLEM OF ADJUSTING HOLDING COMPANY SYSTEMS IN ACCORDANCE WITH THE
LEGISLATIVE STANDARDS, THE COMMISSION HERE HAS ACCUMULATED EXPERIENCE
AND KNOWLEDGE WHICH NO COURT CAN HOPE TO ATTAIN.  ITS JUDGMENT IS
ENTITLED TO THE GREATEST WEIGHT.  WHILE RECOGNIZING THAT THE
COMMISSION'S DISCRETION MUST SQUARE WITH ITS RESPONSIBILITY, ONLY IF
THE REMEDY CHOSEN IS UNWARRANTED IN LAW OR IS WITHOUT JUSTIFICATION IN
FACT SHOULD A COURT ATTEMPT TO INTERVENE IN THE MATTER.  NEITHER GROUND
OF INTERVENTION IS PRESENT IN THIS INSTANCE. 

DISSOLUTION OF A HOLDING COMPANY OR A SUBHOLDING COMPANY PLAINLY IS
CONTEMPLATED BY SEC. 11(B)(2) AS A POSSIBLE REMEDY.  IT DIRECTS THE
COMMISSION TO TAKE SUCH STEPS AS IT FINDS NECESSARY TO ENSURE THAT "THE
CORPORATE STRUCTURE OR CONTINUED EXISTENCE OF ANY COMPANY IN THE
HOLDING-COMPANY SYSTEM" DOES NOT VIOLATE THE STANDARDS SET FORTH. 
AMERICAN AND ELECTRIC ARGUE THAT THE PHRASE "IN THE HOLDING-COMPANY
SYSTEM" LIMITS THE AUTHORITY OF THE COMMISSION TO ORDERS REMOVING A
PARTICULAR COMPANY FROM THE HOLDING COMPANY SYSTEM OF WHICH IT IS A
PART AND DOES NOT PERMIT AN ORDER TERMINATING ITS CORPORATE EXISTENCE. 
GRAMMATICALLY, THIS CONTENTION IS WITHOUT MERIT.  THE PHRASE "IN THE
HOLDING-COMPANY SYSTEM" NO MORE MODIFIES "CONTINUED EXISTENCE" THAN IT
DOES "CORPORATE STRUCTURE."  IT RELATES, RATHER, TO THE WORD "COMPANY,"
FN18  AS THOUGH THE PHRASE READ "THE CORPORATE STRUCTURE OR CONTINUED
EXISTENCE OF ANY COMPANY WHICH IS IN THE HOLDING-COMPANY SYSTEM." 

SUCH A CONSTRUCTION ACCORDS WITH THE POLICY AS WELL AS OTHER
PROVISIONS OF THE ACT.  SECTION 1(C) DECLARES IT TO BE ONE OF THE
POLICIES OF THE ACT, IN ACCORDANCE WITH WHICH ALL PROVISIONS SHALL BE
INTERPRETED, "TO PROVIDE AS SOON AS PRACTICABLE FOR THE ELIMINATION OF
PUBLIC-UTILITY HOLDING COMPANIES EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
IN THIS TITLE."  THE LAST SENTENCE OF SEC. 11(B)(2) PROVIDES THAT
"EXCEPT FOR THE PURPOSE OF FAIRLY AND EQUITABLY DISTRIBUTING VOTING
POWER AMONG THE SECURITY HOLDERS OF SUCH COMPANY, NOTHING IN THIS
PARAGRAPH SHALL AUTHORIZE THE COMMISSION TO REQUIRE ANY CHANGE IN THE
CORPORATE STRUCTURE OR EXISTENCE OF ANY COMPANY WHICH IS NOT A HOLDING
COMPANY,  ..."  MOREOVER, SECS. 11(F) AND 11(G) SPECIFICALLY REFER TO
DISSOLUTION OR PLANS FOR DISSOLUTION OF REGISTERED HOLDING COMPANIES OR
THEIR SUBSIDIARIES IN ACCORDANCE WITH SEC. 11.  FN19  SUCH STATEMENTS
WOULD BE MEANINGLESS AND UNNECESSARY WERE DISSOLUTION NOT CONTEMPLATED
AS A POSSIBLE REMEDY UNDER SEC. 11(B)(2). 

THE LEGISLATIVE HISTORY SUPPORTS THIS INTERPRETATION.  THE ORIGINAL
BILL WHICH PASSED THE SENATE (S. 2796, 74TH CONG., 1ST SESS.) CONTAINED
A PROVISION QUITE SIMILAR TO THE PRESENT FIRST SENTENCE OF SEC.
11(B)(2), EXCEPT THAT IT WAS MANDATORY THAT THE COMMISSION REQUIRE EACH
REGISTERED HOLDING COMPANY AND SUBSIDIARY "TO BE REORGANIZED OR
DISSOLVED" WHEN THE COMMISSION FOUND THAT IT VIOLATED THE STANDARDS OF
THAT SECTION.  IN ADDITION, SEC. 11(E) AS THEN WRITTEN PERMITTED A
VOLUNTARY PLAN "FOR THE DIVESTMENT OF CONTROL, SECURITIES, OR OTHER
ASSETS, OR FOR THE REORGANIZATION OR DISSOLUTION, OF SUCH COMPANY OR
ANY SUBSIDIARY COMPANY."  THE BILL ALSO CONTAINED A SEC. 11(B)(3),
PROVIDING THAT WITHIN FIVE YEARS ALL HOLDING COMPANIES SHOULD CEASE TO
BE HOLDING COMPANIES UNLESS THE EQUIVALENT OF A CERTIFICATE OF
CONVENIENCE AND NECESSITY WERE OBTAINED FROM THE FEDERAL POWER
COMMISSION.  BUT THE HOUSE OF REPRESENTATIVES INSISTED UPON THE
ELIMINATION OF SEC. 11(B)(3) AND THE BILL FINALLY REPORTED OUT BY THE
JOINT CONFERENCE COMMITTEE DELETED THAT PROVISION.  A FURTHER CHANGE
WAS MADE AT THIS TIME SO THAT SEC. 11(B)(2), INSTEAD OF SPECIFYING
REORGANIZATION OR DISSOLUTION AS THE REMEDIES, GAVE THE COMMISSION
POWER TO REQUIRE "SUCH STEPS" AS IT MIGHT FIND NECESSARY TO ENSURE
COMPLIANCE.  SECTION 11(E) WAS ALSO CHANGED TO PERMIT A VOLUNTARY PLAN
"FOR THE DIVESTMENT OF CONTROL, SECURITIES, OR OTHER ASSETS, OR FOR
OTHER ACTION BY SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF." 

THUS THE COMPROMISE BILL WHICH BECAME LAW OMITTED THE UNCONDITIONAL
PROVISION OF SEC. 11(B)(3) FOR THE ELIMINATION OF ALL HOLDING COMPANIES
WITHIN FIVE YEARS, SUBSTITUTING THEREFOR THE "GREAT-GRANDFATHER CLAUSE"
OF SEC. 11(B)(2), AND GAVE THE COMMISSION DISCRETION TO DETERMINE THE
NECESSARY STEPS FOR COMPLIANCE INSTEAD OF SPECIFYING REORGANIZATION OR
DISSOLUTION.  THERE IS NOTHING TO INDICATE THAT THE FRAMERS OF THE
COMPROMISE BILL MEANT TO FORBID REORGANIZATION OR DISSOLUTION AS
REMEDIES WHICH THE COMMISSION MIGHT CHOOSE.  INDEED, THE FACT THAT
THESE TWO REMEDIES HAD BEEN PREVIOUSLY SPECIFIED IS STRONG EVIDENCE
THAT THEY WERE IN THE MINDS OF THOSE WHO WROTE THE PORTION OF SEC.
11(B)(2) NOW UNDER CONSIDERATION AND THAT THOSE PERSONS MERELY WISHED
NOT TO RESTRICT THE COMMISSION TO THOSE TWO REMEDIES; THEY THUS GAVE
THE COMMISSION DISCRETION TO CHOOSE WHATEVER REMEDY IT FELT NECESSARY. 
THIS LEGISLATIVE HISTORY, WHEN COMBINED WITH THE VARIOUS REFERENCES TO
DISSOLUTION IN OTHER PARTS OF SEC. 11, COMPELS THE CONCLUSION THAT
DISSOLUTION IS ONE OF THE REMEDIES CONTEMPLATED BY SEC. 11(B)(2) AND
THAT ITS CHOICE FALLS WITHIN THE ALLOWABLE AREA OF THE COMMISSION'S
DISCRETION. 

NOR CAN WE SAY THAT THE COMMISSION'S CHOICE OF DISSOLUTION WITH
RESPECT TO AMERICAN AND ELECTRIC IS SO LACKING IN REASONABLENESS AS TO
CONSTITUTE AN ABUSE OF ITS DISCRETION.  THE COMMISSION CHOSE
DISSOLUTION BECAUSE IT FELT THAT SUCH ACTION IS CALCULATED TO CORRECT
THE SITUATION "MOST EFFECTIVELY AND QUICKLY, EVER BEARING IN MIND THE
STATED POLICY OF THE ACT TO PROVIDE AS SOON AS PRACTICABLE FOR THE
ELIMINATION OF ALL HOLDING COMPANIES EXCEPT AS EXPRESSLY PROVIDED IN
THE ACT."  11 S.E.C. AT 1215.  IT STATED THAT WHILE SOME MEASURE OF
AMELIORATION IN THE STATUTORY OFFENSIVENESS OF AMERICAN AND ELECTRIC
MIGHT BE AFFORDED BY OTHER APPROACHES, "IN OUR OPINION NO APPROACH
PRESENTLY AVAILABLE HOLDS OUT THE PROMISE OF EFFECTUATING THE STATUTE'S
REQUIREMENTS FULLY OR PROMPTLY."  IBID., P. 1215.  CF. SIEGEL CO. V.
FEDERAL TRADE COMMISSION, 327 U.S. 608.  THAT THIS CHOICE OF
DISSOLUTION IN PREFERENCE TO OTHER REMEDIES IS NOT LIGHTLY TO BE
DISREGARDED IS SHOWN BY THE STATEMENT OF DR. WALTER SPLAWN, MUCH RELIED
UPON BY CONGRESS IN SHAPING THIS STATUTE, THAT "THE MOST EFFECTIVE
MEANS OF PREVENTING PYRAMIDING IS TO ELIMINATE THE SO-CALLED
INTERMEDIARY COMPANIES INTERPOSED BETWEEN THE OPERATING COMPANY AND THE
COMPANY AT THE TOP."  FN20 

WITHOUT ATTEMPTING TO INVADE THE DOMAIN OF THE COMMISSION'S
DISCRETION, WE CAN READILY PERCEIVE A FACTUAL BASIS UNDERLYING THE
CHOICE OF DISSOLUTION IN THIS INSTANCE.  THE COMMISSION REASONABLY
COULD CONCLUDE FROM THE RECORD THAT AMERICAN AND ELECTRIC PERFORM NO
JUSTIFIABLE FUNCTION; THEY ARE UNNECESSARY COMPLEXITIES ENABLING BOND
AND SHARE TO PERPETUATE ITS PYRAMIDED SYSTEM.  THE ACTUAL AND POTENTIAL
EVILS RESULTING FROM THEIR CONTINUED EXISTENCE MAY WELL BE SAID TO
OUTWEIGH ANY OF THEIR CLAIMED ADVANTAGES, ESPECIALLY SINCE MANY OF THE
LATTER SEEM IMPOSSIBLE OF ATTAINMENT DUE TO THE UNSOUND FINANCIAL
STRUCTURES OF THE COMPANIES.  THE COMMISSION WAS THUS WARRANTED IN
FEELING THAT DISSOLUTION OF THESE COMPANIES IS NECESSARY TO THE
ATTAINMENT OF THE STANDARDS OF SEC. 11(B)(2). 

WE ARE UNIMPRESSED, MOREOVER, BY THE CLAIM THAT DISSOLUTION IS SO
DRASTIC A REMEDY AS TO BE UNREASONABLE.  ELIMINATION OF USELESS HOLDING
COMPANIES MAY BE CARRIED OUT BY FAIR AND EQUITABLE METHODS SO AS TO
DESTROY NOTHING OF REAL VALUE.  AMERICAN AND ELECTRIC, THE COMMISSION
FOUND, ARE LITTLE MORE THAN A SET OF BOOKS AND A PORTFOLIO OF
SECURITIES.  AND WE CANNOT SAY THAT THE COMMISSION WAS WITHOUT BASIS
FOR ITS BELIEF THAT DISSOLUTION UNDER THESE CIRCUMSTANCES WOULD HARM NO
ONE.  IT MAY WELL HAVE CONSIDERED THE FACT BROUGHT OUT IN THE ARGUMENT
BEFORE US THAT, SO FAR AS BOND AND SHARE AND THE PUBLIC SECURITY
HOLDERS ARE CONCERNED, DISSOLUTION WOULD MEAN LITTLE MORE THAN THE
RECEIPT OF SECURITIES OF THE OPERATING COMPANIES IN LIEU OF THEIR
PRESENT SHARES IN AMERICAN AND ELECTRIC.  ANY NUMBER OF BENEFITS MIGHT
THEREAFTER ACCRUE TO THESE SECURITY HOLDERS.  THEIR EQUITIES IN THE
BOND AND SHARE SYSTEM WOULD BE MATERIALLY STRENGTHENED BY THE REMOVAL
OF THE USELESS AND COSTLY SUBHOLDING COMPANIES AND THEIR VOTING POWER
WOULD TEND TO BE MORE IN PROPORTION TO THEIR INVESTMENT.  THE FINANCIAL
WEAKNESSES OF THE VARIOUS COMPANIES REMAINING IN THE SYSTEM WOULD BE
EASIER TO CORRECT, WITH NUMEROUS BENEFITS TO THE CONSUMERS AND THE
GENERAL PUBLIC AS WELL AS THE INVESTORS.  FN21  "IN SHORT, THE
INDIVIDUAL INVESTOR SHOULD RECEIVE THE KIND OF A SECURITY HE THOUGHT HE
WAS BUYING IN THE FIRST PLACE.  THE ACTUAL CLEARING UP, THROUGH CLEAN
REORGANIZATIONS, OF THE TANGLE IN WHICH HOLDING-COMPANY FINANCE HAS
LEFT THE INDUSTRY AND THOSE WHO HAVE INVESTED IN IT, CAN REESTABLISH A
CONFIDENT, STABLE MARKET FOR GOOD UTILITY SECURITIES."  SENATE REPORT
NO. 621, 74TH CONG., 1ST SESS., P. 17.  THESE FACTORS LEND SUBSTANCE TO
THE COMMISSION'S CONCLUSION THAT "THE DISSOLUTION OF THESE COMPANIES
WHICH NOT ONLY HAVE NEVER SERVED ANY USEFUL PURPOSE BUT HAVE BEEN A
MEDIUM OF MUCH HARM, WILL EFFECTUATE THE PROVISIONS AND POLICIES OF THE
ACT AND WILL IN ALL RESPECTS BE BENEFICIAL TO THE PUBLIC INTEREST AND
THE INTEREST OF INVESTORS AND CONSUMERS; AND WE SO FIND."  11 S.E.C. AT
1215. 

IN VIEW OF THE RATIONAL BASIS FOR THE COMMISSION'S CHOICE, THE FACT
THAT OTHER SOLUTIONS MIGHT HAVE BEEN SELECTED BECOMES IMMATERIAL.  THE
COMMISSION IS THE BODY WHICH HAS THE STATUTORY DUTY OF CONSIDERING THE
POSSIBLE SOLUTIONS AND CHOOSING THAT WHICH IT CONSIDERS MOST
APPROPRIATE TO THE EFFECTUATION OF THE POLICIES OF THE ACT.  OUR REVIEW
IS LIMITED SOLELY TO TESTING THE PROPRIETY OF THE REMEDY SO CHOSEN FROM
THE STANDPOINT OF THE CONSTITUTION AND THE STATUTE.  WE WOULD BE
IMPINGING UPON THE COMMISSION'S RIGHTFUL DISCRETION WERE WE TO CONSIDER
THE VARIOUS ALTERNATIVES IN THE HOPE OF FINDING ONE THAT WE CONSIDER
MORE APPROPRIATE.  SINCE THE REMEDY CHOSEN BY THE COMMISSION IN THIS
INSTANCE IS LEGALLY AND FACTUALLY SUSTAINABLE, IT MATTERS NOT THAT
AMERICAN AND ELECTRIC BELIEVE THAT ALTERNATIVE ORDERS SHOULD HAVE BEEN
ENTERED.  IT IS LIKEWISE IRRELEVANT THAT THEY FEEL THAT BOND AND SHARE
IS THE PRINCIPAL OFFENDER AGAINST THE STATUTORY STANDARDS AND THAT THE
COMMISSION SHOULD MERELY HAVE REQUIRED BOND AND SHARE TO DIVEST ITSELF
OF ITS INTERESTS IN AMERICAN AND ELECTRIC.  THE COMMISSION FOUND THAT
AMERICAN AND ELECTRIC VIOLATE THE STATUTORY STANDARDS, A FINDING THAT
IS SUPPORTABLE WHATEVER MAY BE THE SHORTCOMINGS OF BOND AND SHARE. 

FINALLY, LENGTHY OBJECTIONS HAVE BEEN MADE RELATIVE TO THE
COMMISSION'S PROCEDURE IN TREATING ALTERNATIVE PLANS FILED UNDER SEC.
11(E) BY AMERICAN AND ELECTRIC.  THESE PLANS WERE DESIGNED TO ADJUST
THE COMPANIES TO THE STANDARDS OF SEC. 11(B)(2) WITHOUT THE NECESSITY
OF DISSOLUTION.  MOTIONS WERE MADE TO CONSOLIDATE THE APPLICATIONS FOR
APPROVAL OF THESE PLANS WITH THE PROCEEDINGS INSTITUTED BY THE
COMMISSION UNDER SEC. 11(B)(2), THE HEARINGS THEN HAVING BEEN IN
PROGRESS FOR MORE THAN A YEAR AND THE RECORD APPROACHING COMPLETION. 
THE COMMISSION DEFERRED CONSIDERATION OF THE MOTIONS UNTIL IT ENTERED
THE SEC. 11(B)(2) ORDERS NOW UNDER REVIEW; IT THEN DENIED THE MOTIONS
AND REFUSED TO GRANT HEARINGS ON THE PLANS IN ADVANCE OF ITS ORDERS OF
DISSOLUTION.  IT DID THIS, HOWEVER, ONLY AFTER THOROUGH EXAMINATION OF
THE PROPOSED PLANS AND AFTER FINDING THAT THEY FAILED TO HOLD OUT ANY
REAL PROMISE OF EFFECTUATING THE STANDARDS OF SEC. 11(B)(2). 

WE FAIL TO PERCEIVE ANY ERROR IN THIS PROCEDURE.  THE FILING OF THE
SEC. 11(E) PLANS, OF COURSE, DID NOT OUST THE COMMISSION OF
JURISDICTION TO ENTER ITS ORDERS UNDER SEC. 11(B)(2).  THAT
JURISDICTION GROWS OUT OF THE STATUTORY COMMAND THAT THE COMMISSION
DECLARE BY ORDER, AS SOON AS PRACTICABLE, WHAT EACH HOLDING COMPANY
SYSTEM REQUIRES BY WAY OF INTEGRATION AND SIMPLIFICATION.  SECTION
11(E) MERELY PERMITS THE HOLDING COMPANIES TO FORMULATE THEIR OWN
PROGRAMS FOR COMPLIANCE WITH SEC. 11(B) OR TO SUBMIT PLANS IN
CONFORMITY WITH PRIOR COMMISSION ORDERS UNDER SEC. 11(B), APPROPRIATE
NOTICE AND HEARING BEING CONTEMPLATED.  IT DOES NOT NECESSARILY GIVE
SUCH PLANS THE EFFECT OF STAYING PROCEEDINGS UNDER SEC. 11(B)(2) WHERE
SUCH PROCEEDINGS ARE INITIATED PRIOR TO THE FILING OF THE PLANS.  ANY
OTHER CONCLUSION WOULD PERMIT THE FILING OF DILATORY PLANS SO AS TO
RENDER IMPOTENT THE POWER AND DUTY OF THE COMMISSION TO ENTER SEC.
11(B)(2) ORDERS AS SOON AS PRACTICABLE.    WE ASSUME THAT THE
COMMISSION WILL GIVE DUE CONSIDERATION TO ANY PLANS THAT ARE FILED
UNDER SEC. 11(E) BEFORE IT ENTERS A SEC. 11(B)(2) ORDER.  IF IT FINDS
THAT SUCH PLANS MAY HAVE MERIT AND MAY EFFECTUATE THE POLICIES OF SEC.
11(B)(2), THE PRINCIPLES OF ORDERLY ADMINISTRATION WOULD DICTATE THAT
ENTRY OF THE SEC. 11(B)(2) ORDER BE DEFERRED UNTIL FULL HEARINGS ARE
HAD WITH RESPECT TO THE PLANS.  FN22  IT MIGHT THEN BECOME APPARENT
THAT AN INVOLUNTARY ORDER UNDER SEC. 11(B)(2) WOULD BE UNNECESSARY AND
STATUTORY COMPLIANCE COULD BE WORKED OUT SOLELY UNDER SEC. 11(E).  BUT
WHERE CONSIDERATION LEADS THE COMMISSION TO THE CONCLUSION THAT THE
PLANS ON THEIR FACE ARE INCOMPLETE, INADEQUATE AND UNLIKELY TO SATISFY
THE STATUTORY STANDARDS, OR WHERE THE PLANS ARE FOUND TO HAVE BEEN
FILED SOLELY FOR PURPOSES OF DELAY, IT WOULD BE CONTRARY TO THE
STATUTORY POLICY OF PROMPT ACTION TO REQUIRE THE COMMISSION TO HOLD
HEARINGS ON THE PLANS BEFORE ENTERING A SEC. 11(B)(2) ORDER.  THE
COMMISSION THEN WOULD HAVE NO REASONABLE STATUTORY ALTERNATIVE BUT TO
ENTER THE SEC. 11(B)(2) ORDER AS SOON AS PRACTICABLE, ESPECIALLY WHERE
THE UNSATISFACTORY PLANS ARE FILED LONG AFTER THE INSTITUTION OF THE
SEC. 11(B)(2) PROCEEDINGS.  AND IT IS PROPER FOR THE COMMISSION TO MAKE
AN ADVERSE DETERMINATION OF THIS NATURE IN REGARD TO THE SEC. 11(E)
PLANS AT THE TIME OF ENTRY OF THE SEC. 11(B)(2) ORDER, SUCH MATTER
LYING WITHIN THE SOUND DISCRETION OF THE COMMISSION. 

HERE THE COMMISSION GAVE DUE CONSIDERATION TO THE SEC. 11(E) PLANS
AND FOUND THEM TO BE INCOMPLETE AND INADEQUATE ON THEIR FACE.  IT
POINTED OUT THAT SEVEN YEARS HAD ELAPSED SINCE THE EFFECTIVE DATE OF
THE ACT, FOUR AND A HALF YEARS SINCE THE DATE AFTER WHICH ACTION UNDER
SEC. 11 WAS TO BE REQUIRED "AS SOON AS PRACTICABLE" AND MORE THAN TWO
YEARS SINCE THE PRESENT PROCEEDINGS HAD BEEN INSTITUTED.  THESE FACTORS
OF TIME AND THE LACK OF SUBSTANCE IN THE SEC. 11(E) PLANS LED THE
COMMISSION TO CONCLUDE THAT A DELAY IN THE ENTRY OF THE SEC. 11(B)(2)
ORDERS WHICH IT FELT NECESSARY TO THE EFFECTUATION OF THE STATUTORY
STANDARDS WOULD NOT BE JUSTIFIED.  AND OUR EXAMINATION OF THE SITUATION
REVEALS AN ADEQUATE BASIS IN FACT FOR THE COMMISSION'S ACTION.  NOTE
SHOULD BE MADE OF THE FACT THAT THE COMMISSION DID NOT REFUSE BY ORDER
TO HOLD HEARINGS ON THE SEC. 11(E) PLANS.  BUT TO THE EXTENT THAT THE
ENTRY OF THE SEC. 11(B)(2) ORDERS HAS MADE THE PLANS MOOT OR THE
HEARINGS UNNECESSARY, THE RESULT IS ONE THAT IS INEVITABLE IF PROPER
ACCOMMODATION IS TO BE MADE FOR THE DIFFERENT SECTIONS OF THE ACT AND
FOR THE VARIOUS STATUTORY POLICIES. 

MOREOVER, A SEC. 11(B)(2) PROCEEDING LEADS ONLY TO THE EXPRESSION OF
THE COMMISSION'S VIEW OF WHAT MUST BE DONE TO ENSURE COMPLIANCE WITH
THE STATUTORY STANDARDS.  ACTUAL COMPLIANCE COMES LATER.  IN THE
MEANTIME, NOTHING PRECLUDES AMERICAN OR ELECTRIC FROM SEEKING
REVOCATION OF THE DISSOLUTION ORDERS ON A SHOWING THAT THE CONDITIONS
UPON WHICH THE ORDERS WERE PREDICATED DO NOT EXIST, THEREBY MAKING SOME
OTHER TYPE OF ORDER MORE APPROPRIATE.  SECTION 11(B) EXPRESSLY
ENVISAGES SUCH A PROCEDURE, WITH PROVISION FOR NOTICE AND HEARING. 
AMERICAN AND ELECTRIC THUS ARE NOT YET FORECLOSED FROM ATTACKING THE
COMMISSION'S ORDERS UNDER SEC. 11(B)(2). 

FROM WHAT WE HAVE SAID IT FOLLOWS THAT WE MUST AFFIRM THE JUDGMENT OF
THE COURT BELOW AND SUSTAIN THE ACTION OF THE COMMISSION.  THE OTHER
POINTS THAT HAVE BEEN RAISED EITHER DO NOT MERIT DISCUSSION OR HAVE
BEEN ADEQUATELY ANSWERED IN THE OPINION OF THE COURT BELOW.  AFFIRMED. 

FN1  49 STAT. 803, 821; 15 U.S.C. SEC. 79K (B)(2). 

FN2  THE OTHER THREE SUBHOLDING COMPANIES ARE THE AMERICAN & FOREIGN
POWER COMPANY, INC., THE NATIONAL POWER & LIGHT COMPANY AND THE
AMERICAN GAS & ELECTRIC COMPANY.  BOND AND SHARE ALSO HAS A WHOLLY
OWNED SERVICE SUBSIDIARY, EBASCO SERVICES INCORPORATED.  THE
ORGANIZATIONAL SET-UP IS MORE FULLY EXPLAINED IN THE COMMISSION'S
OPINION IN THIS PROCEEDING, 11 S.E.C. 1146, AND IN IN RE ELECTRIC BOND
& SHARE CO., 9 S.E.C. 978. 

FN3  THE SO-CALLED "GREAT-GRANDFATHER CLAUSE" OF SEC. 11(B)(2) IS NOT
INVOLVED IN THIS CASE.  THAT PROVIDES THAT "IN CARRYING OUT THE
PROVISIONS OF THIS PARAGRAPH THE COMMISSION SHALL REQUIRE EACH
REGISTERED HOLDING COMPANY (AND ANY COMPANY IN THE SAME HOLDING-COMPANY
SYSTEM WITH SUCH HOLDING COMPANY) TO TAKE SUCH ACTION AS THE COMMISSION
SHALL FIND NECESSARY IN ORDER THAT SUCH HOLDING COMPANY SHALL CEASE TO
BE A HOLDING COMPANY WITH RESPECT TO EACH OF ITS SUBSIDIARY COMPANIES
WHICH ITSELF HAS A SUBSIDIARY COMPANY WHICH IS A HOLDING COMPANY."  SEE
OTIS & CO. V. S.E.C., 323 U.S. 624. 

FN4  THE COMMISSION FOUND THAT "THIS CONTROL OF THE SUBHOLDING
COMPANIES BY BOND AND SHARE IS NOT LIMITED IN OPERATION TO THE MERE
CASTING OF A CERTAIN PERCENTAGE OF VOTES AT STOCKHOLDERS' MEETINGS.  IT
PERMEATES EVERY STRATUM AND UNIT OF THE HOLDING COMPANY SYSTEM IN THE
MOST COMPREHENSIVE MANNER....  THROUGH THE CONCENTRATED VOTING POWER OF
THE SECURITIES OWNED BY BOND AND SHARE, IT IS ABLE TO ELECT THE
DIRECTORS OF THE SUBHOLDING COMPANIES, AND THUS GOVERN SELECTION OF THE
RESPECTIVE MANAGEMENTS.  THROUGH THE MANAGEMENTS OF THE SUBHOLDING
COMPANIES IT IS ABLE TO GOVERN SELECTION OF THE DIRECTORS AND
MANAGEMENTS OF EACH OF THE OPERATING COMPANY SUBSIDIARIES OF EACH OF
THE SUBHOLDING COMPANIES.  THE LATTER ARE IN TURN RESPONSIVE TO BOND
AND SHARE'S WISHES RESPECTING ENTRY INTO SERVICE CONTRACTS WITH EBASCO
SERVICES INCORPORATED, AND THE DETAILS OF THE OPERATIONS OF THEIR
COMPANIES."  11 S.E.C. AT 1203-04. 

FN5  THE RECORD BEFORE THIS COURT IN THE BOND AND SHARE CASE REVEALED
THAT MORE THAN 31% OF THE TOTAL ELECTRIC ENERGY GENERATED BY BOND AND
SHARE SUBSIDIARIES IS TRANSMITTED ACROSS STATE LINES, WHILE MORE THAN
25% OF ALL THE ELECTRIC ENERGY TRANSMITTED ACROSS STATE LINES IN THE
UNITED STATES IS HANDLED BY BOND AND SHARE COMPANIES.  APPROXIMATELY
47% OF THE GAS HANDLED BY BOND AND SHARE COMPANIES IS TRANSPORTED
ACROSS STATE LINES, THIS AMOUNT CONSTITUTING MORE THAN 20% OF ALL THE
GAS TRANSPORTED ACROSS STATE LINES IN THE UNITED STATES. 

FN6  UNITED STATES V. DARBY, 312 U.S. 100; ELECTRIC BOND & SHARE CO.
V. S.E.C., 303 U.S. 419. 

FN7  NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197; STANDARD
OIL CO. V. UNITED STATES, 221 U.S. 1; UNITED STATES V. AMERICAN TOBACCO
CO., 221 U.S. 106. 

FN8  NORTH AMERICAN CO. V. S.E.C., 327 U.S. 686. 

FN9  NORTHERN SECURITIES CO. V. UNITED STATES, SUPRA; STANDARD OIL
CO. V. UNITED STATES, SUPRA; UNITED STATES V. READING CO., 253 U.S. 26;
UNITED STATES V. DELAWARE & HUDSON CO., 213 U.S. 366.  SEE ALSO
BRECKENRIDGE, "LEGAL STUDY ON CONSTITUTIONAL POWER OF CONGRESS TO
REGULATE STOCK OWNERSHIP IN RAILROADS ENGAGED IN INTERSTATE COMMERCE,"
HOUSE REPORT NO. 2789, 71ST CONG., 3D SESS., VOL. 1, P. 1. 

FN10  FEDERAL TRADE COMMISSION REPORT TO THE SENATE, "UTILITY
CORPORATIONS," S. DOC. 92, PART 72-A, 70TH CONG., 1ST SESS., P. 858. 
SEE ALSO BONBRIGHT AND MEANS, THE HOLDING COMPANY (1932), P. 147;
BARNES, THE ECONOMICS OF PUBLIC UTILITY REGULATION (1942), PP. 71-81,
143-48. 

FN11  "BY THE PYRAMIDING OF HOLDINGS THROUGH NUMEROUS INTERMEDIATE
HOLDING COMPANIES AND BY THE ISSUE, AT EACH LEVEL OF THE STRUCTURE, OF
DIFFERENT CLASSES OF STOCK WITH UNEQUAL VOTING RIGHTS, IT HAS
FREQUENTLY BEEN POSSIBLE FOR RELATIVELY SMALL BUT POWERFUL GROUPS WITH
A DISPROPORTIONATELY SMALL INVESTMENT OF THEIR OWN TO CONTROL AND TO
MANAGE SOLELY IN THEIR OWN INTEREST TREMENDOUS CAPITAL INVESTMENTS OF
OTHER PEOPLE'S MONEY."  REPORT OF THE NATIONAL POWER POLICY COMMITTEE
ON PUBLIC-UTILITY HOLDING COMPANIES, H. DOC. 137, 74TH CONG., 1ST
SESS., PP. 4-5. 

"THE EFFECT OF SUCH PYRAMIDING IS TO MULTIPLY GREATLY THE CONTROL
THAT CAN BE EXERCISED BY THE DOMINANT PARTIES THROUGH THEIR PERSONAL
RESOURCES.  FOR EXAMPLE, IN THE ILLUSTRATION JUST GIVEN, AN INVESTMENT
OF $1 IN COMMON STOCK OF CORPORATION SECURITIES CO. OF CHICAGO WOULD
EXERCISE CONTROL OVER ABOUT $2,000 INVESTED IN PROPERTIES OF SOME OF
THE OPERATING COMPANIES AT THE BOTTOM OF THE PYRAMID.  IT SEEMS VERY
UNSAFE TO HAVE ANY FORM OF PYRAMIDING WHICH HAS SUCH A FINANCIAL BASIS,
NOT ONLY ON ACCOUNT OF THE EXCESSIVE CONCENTRATION OF CONTROL OVER
IMMENSE MASSES OF PROPERTY BUT ALSO BECAUSE OF THE OPPORTUNITY IT
OFFERS TO FINANCIAL ADVENTURERS TO HAVE TOO MUCH INFLUENCE OVER THE
GENERAL ECONOMIC INTERESTS OF THE COUNTRY."  FEDERAL TRADE COMMISSION
REPORT, SUPRA, NOTE 10, P. 161. 

FN12  THE FEDERAL TRADE COMMISSION REPORT, SUPRA, NOTE 10, P. 860,
FOUND THAT THE HIGHLY PYRAMIDED HOLDING COMPANY SYSTEM TENDS TO MAKE
THOSE FEW IN CONTROL AT THE TOP "(1) NEGLECT GOOD MANAGEMENT OF
OPERATING COMPANIES, ESPECIALLY BY FAILING TO PROVIDE FOR ADEQUATE
DEPRECIATION; (2) EXAGGERATE PROFITS BY UNSOUND, DECEPTIVE ACCOUNTING;
(3) SEEK EXORBITANT PROFITS FROM SERVICE FEES EXACTED FROM
SUBSIDIARIES; (4) DISBURSE UNEARNED DIVIDENDS, BECAUSE THE APPARENT
GAINS, SO OBTAINED, GREATLY MAGNIFY THE RATE OF EARNINGS FOR THE TOP
HOLDING COMPANY; AND (5) PROMOTE EXTRAVAGANT SPECULATION IN THE PRICES
OF SUCH EQUITY STOCKS ON THE EXCHANGES." 

FN13  IBID., P. 162. 

FN14  IBID., P. 860. 

FN15  SENATE REPORT NO. 621, 74TH CONG., 1ST SESS., P. 12. 

FN16  BOND AND SHARE'S HOLDINGS OF VOTING STOCK OF ALL FIVE OF ITS
SUBHOLDING COMPANIES HAVE A STATED BOOK VALUE OF ONLY $53,337,600,
AFTER ADJUSTMENT FOR PREFERRED ARREARAGES, WHICH IS EQUAL TO ABOUT
1.85% OF THE COMBINED CONSOLIDATED CAPITALIZATION OF THE FIVE
SUBHOLDING COMPANY SYSTEMS.  THIS RESULTS, AFTER ADJUSTMENTS, IN
RENDERING COMPLETELY INEFFECTUAL WHATEVER VOTING POWER REMAINS FOR THE
SECURITIES IN THE HANDS OF THE PUBLIC INVESTORS WHO HAVE CONTRIBUTED
OVER 80% OF THE TOTAL CAPITALIZATIONS. 

FN17  WE DO NOT UNDERSTAND THE COMMISSION TO CONTEND THAT THE
PERCENTAGE OF VOTING POWER AND THE PERCENTAGE OF INVESTMENT SHOULD
NECESSARILY BE EQUAL.  ITS VIEW SIMPLY IS THAT NO PROCESS OF WEIGHTING
COULD RENDER FAIR AND EQUITABLE A DISTRIBUTION OF VOTING POWER BY WHICH
BOND AND SHARE CONTROLS ALL OF AMERICAN'S SUBSIDIARIES BY AN INVESTMENT
REPRESENTING AT BEST 3.42% OF THEIR CAPITALIZATION, OR 8.72% IN THE
CASE OF ELECTRIC'S SUBSIDIARIES.  SEE IN RE ELECTRIC BOND & SHARE CO.,
9 S.E.C. 978, 992. 

FN18  THE WORDS "ANY COMPANY IN THE HOLDING-COMPANY SYSTEM" WERE
SUBSTITUTED FOR THE WORDS "SUCH COMPANY" IN AN EARLIER DRAFT OF SEC.
11(B)(2).  NO CHANGE IN SUBSTANCE WAS THEREBY INDICATED. 

FN19  SECTION 11(F) REFERS TO FEES, EXPENSES AND REMUNERATION PAID IN
CONNECTION WITH ANY REORGANIZATION, DISSOLUTION, LIQUIDATION,
BANKRUPTCY OR RECEIVERSHIP OF A REGISTERED HOLDING COMPANY OR A
SUBSIDIARY THEREOF.  SECTION 11(G) SPEAKS OF PROXIES, ETC., USED "IN
RESPECT OF ANY PLAN UNDER THIS SECTION FOR THE DIVESTMENT OF CONTROL,
SECURITIES, OR OTHER ASSETS, OR FOR THE DISSOLUTION OF ANY REGISTERED
HOLDING COMPANY OR ANY SUBSIDIARY COMPANY THEREOF." 

FN20  SPLAWN REPORT, H. REP. NO. 827, 73D CONG., 2D SESS., PT. 2, P.
VII, MADE PURSUANT TO H.J. RES. 572, 72D CONG., 2D SESS., REFERRED TO
IN SEC. 1(B) OF THE ACT. 

FN21  "IT IS THUS APPARENT THAT THOUGH SECTION 11 IS ON OCCASIONS
STILL REFERRED TO AS A 'DEATH SENTENCE,' THE SOPHISTICATED OBSERVER NO
LONGER REGARDS EVEN THE DIRECTED REORGANIZATION OR LIQUIDATION OF A
HOLDING COMPANY AS A STEP TO BE FEARED BY INVESTORS.  THERE IS
INCREASED RECOGNITION THAT THESE STEPS IN THE ENFORCEMENT OF THE ACT
HAVE BEEN 'AKIN TO A SURGICAL OPERATION, THROUGH WHICH THE DEAD SKIN
(THE TOP HOLDING COMPANY) WAS BEING CUT AWAY FROM THE PORES (THE
OPERATING COMPANIES) IN ORDER TO ALLOW THE LATTER TO BREATHE.'"  BLAIR
SMITH AND HELFENSTEIN, "A DEATH SENTENCE OR A NEW LEASE ON LIFE?"  94
UNIV.  OF PA. L. REV. 148, 201. 

FN22  WITH REFERENCE TO S. 2796, IT WAS SAID:  "SUBSECTION (E)
EXPRESSLY AUTHORIZES A HOLDING COMPANY SUBJECT TO THE APPROVAL OF THE
COMMISSION AND THE COURT TO WORK OUT A PLAN OF REORGANIZATION TO MAKE
UNNECESSARY THE ISSUANCE OF AN INVOLUNTARY ORDER FOR ITS REORGANIZATION
BY THE COMMISSION,  ..."  SENATE REPORT NO. 621, 74TH CONG., 1ST SESS.,
P. 33. 

MR. JUSTICE FRANKFURTER AGREES WITH THIS OPINION EXCEPT THAT HE
BELIEVES THAT CONSIDERATION OF THE REQUIREMENTS OF NOTICE AND HEARING
UNDER SEC. 11(E) DOES NOT ARISE, IN VIEW OF THE PARTICULAR
CIRCUMSTANCES UNDER WHICH THE SEC. 11(B)(2) ORDERS WERE HERE MADE. 

MR. JUSTICE REED, MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I CONCUR IN THE RESULT AND IN THE COURT'S OPINION, EXCEPT THOSE
PORTIONS OF PART V DEALING WITH THE COMMISSION'S PROCEDURE IN TREATING
THE ALTERNATIVE PLANS FILED UNDER SEC. 11(E) OF THE ACT BY AMERICAN AND
ELECTRIC. 

ALTHOUGH, FOR REASONS TO BE STATED, I THINK THE COMMISSION'S ACTION
IN ENTERING ITS SEC. 11(B)(2) ORDER MUST BE SUSTAINED, I DO NOT THINK
ITS PROCEDURE IN RESPECT TO MAKING PROVISION FOR DEALING WITH THE
ALTERNATIVE PLANS WAS IN COMPLIANCE WITH SEC. 11(E) OR THE RIGHTS TO
NOTICE AND HEARING ON SUCH PLANS WHICH IT ASSURED.  BECAUSE THE MATTER
MAY BE OF CONSIDERABLE IMPORTANCE FOR THE FUTURE, I DESIRE TO STATE MY
REASONS FOR DIFFERENCE FROM THE VIEWS EXPRESSED BY THE COURT IN THIS
RESPECT. 

PRACTICABLE AFTER JANUARY 1, 1938," TO REQUIRE BY ORDER EACH REGISTERED
HOLDING COMPANY AND EACH SUBSIDIARY THEREOF, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, TO TAKE SUCH STEPS AS THE COMMISSION SHALL
FIND NECESSARY TO ENSURE "THAT THE CORPORATE STRUCTURE OR CONTINUED
EXISTENCE OF ANY COMPANY IN THE HOLDING-COMPANY SYSTEM DOES NOT UNDULY
OR UNNECESSARILY COMPLICATE THE STRUCTURE, OR UNFAIRLY OR INEQUITABLY
DISTRIBUTE VOTING POWER AMONG SECURITY HOLDERS, OF SUCH HOLDING-COMPANY
SYSTEM."  49 STAT. 803, 821.  IF THIS SECTION STOOD ALONE AND
UNQUALIFIED IN THE ACT, THE COMMISSION'S POWER WOULD BE UNQUESTIONABLE
TO REQUIRE THE NECESSARY STEPS TO BE TAKEN TO ACCOMPLISH THE SECTION'S
STATED PURPOSES WITHOUT REFERENCE TO VOLUNTARY PLANS SUBMITTED BY THE
COMPANIES AFFECTED.    BUT SEC. 11(B)(2) DOES NOT STAND ALONE OR
UNQUALIFIED IN THIS RESPECT.  SECTION 11(E)  FN1 EXPRESSLY PROVIDES FOR
THE SUBMISSION OF PLANS TO EFFECTUATE THE OBJECTS OF SEC. 11(B)(2) BY
"ANY REGISTERED HOLDING COMPANY OR ANY SUBSIDIARY COMPANY OF A
REGISTERED HOLDING COMPANY."  THIS IS TO BE DONE "IN ACCORDANCE WITH
SUCH RULES AND REGULATIONS OR ORDER AS THE COMMISSION MAY DEEM
NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION
OF INVESTORS OR CONSUMERS."  MOREOVER, "IF, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, THE COMMISSION SHALL FIND SUCH PLAN, AS
SUBMITTED OR AS MODIFIED, NECESSARY TO EFFECTUATE THE PROVISIONS OF
SUBSECTION (B) AND FAIR AND EQUITABLE TO THE PERSONS AFFECTED BY SUCH
PLAN, THE COMMISSION SHALL MAKE AN ORDER APPROVING SUCH PLAN  ..." 

I DO NOT THINK THAT SEC. 11(E) SIMPLY PROVIDES A PROCEDURE
ALTERNATIVE TO THAT OF SEC. 11(B) WHICH THE COMMISSION IS FREE TO
FOLLOW OR DISREGARD AT ITS PLEASURE.  BOTH THE TERMS OF THE ACT AND THE
LEGISLATIVE HISTORY SHOW THAT THE PURPOSE OF SEC. 11(E) WAS TO ALLOW
COMPANIES AFFECTED "TO WORK OUT A PLAN OF REORGANIZATION TO MAKE
UNNECESSARY THE ISSUANCE OF AN INVOLUNTARY ORDER FOR ITS REORGANIZATION
...," WHICH COULD ONLY BE ISSUED UNDER SEC. 11(B).  S. REP. NO. 621,
74TH CONG., 1ST SESS., 33; COMMONWEALTH & SOUTHERN CORP. V. S.E.C., 134
F.2D 747, 751.  IN MY OPINION THIS PURPOSE, TOGETHER WITH THE PROVISION
FOR VOLUNTARY PLANS TO BE SUBMITTED "IN ACCORDANCE WITH SUCH RULES AND
REGULATIONS OR ORDER AS THE COMMISSION MAY DEEM NECESSARY OR
APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF INVESTORS,"
FN2  ASSURES THE RIGHT TO SUBMIT SUCH PLANS FOR THE COMMISSION'S
CONSIDERATION AND TO HAVE THEM CONSIDERED AND DETERMINED "AFTER NOTICE
AND OPPORTUNITY FOR HEARING."  SEE CHICAGO JUNCTION CASE, 264 U.S. 258,
264-265. 

FURTHERMORE, ALTHOUGH THE SECTION GIVES THE COMMISSION BROAD
DISCRETION CONCERNING THE PROCEDURE TO BE FOLLOWED, IT WOULD SEEM
CLEAR, BOTH FROM THE SECTION'S PURPOSE AND FROM ITS TERMS, THAT THE ACT
CONTEMPLATES THAT IT SHALL MAKE THE REQUIRED DETERMINATION, CONCERNING
SUCH A VOLUNTARY PLAN PROPERLY SUBMITTED, PRIOR TO THE ENTRY OF ANY
ORDER UNDER SEC. 11(B).  CF. ASHBACKER RADIO CORP. V. F.C.C., 326 U.S.
327.  ONLY IN THIS WAY COULD THE LEGISLATIVE PURPOSE "TO MAKE
UNNECESSARY ISSUANCE OF AN INVOLUNTARY ORDER" BE MADE EFFECTIVE.  THIS
BEING TRUE, THE SECTION CAST UPON THE COMMISSION THE DUTY OF PROVIDING
THE APPROPRIATE PROCEDURE FOR SUBMITTING VOLUNTARY PLANS, BY RULES,
REGULATIONS OR ORDER COMPORTING WITH THE SPECIFIED STANDARDS, INCLUDING
THOSE FOR NOTICE AND HEARING. 

THE RECORD DOES NOT DISCLOSE THAT THE COMMISSION AT ANY TIME COMPLIED
WITH THOSE REQUIREMENTS IN THESE CASES.  SO FAR AS APPEARS NO GENERAL
RULES OR REGULATIONS WERE ISSUED.  NOR WAS ANY ORDER MADE OR ENTERED
PROVIDING FOR SUCH A PROCEDURE.  ON THE CONTRARY, THE PROCEDURE
FOLLOWED WAS NOT, IN ITS INITIAL STAGES, IN ACCORDANCE WITH THE
STATUTORY PROVISIONS, AS THE FOLLOWING CHRONOLOGY DEMONSTRATES. 

ON MAY 10, 1940, NOTICE OF HEARING UNDER SEC. 11(B)(2) WAS SERVED ON
THE PETITIONERS.  THE NOTICE MADE NO REFERENCE TO SEC. 11(E) OR ANY
POSSIBLE ALTERNATIVE PROCEEDINGS UNDER IT.  THE HEARING WAS SET FOR
JUNE 10, 1940, SCARCELY TIME FOR THE PETITIONERS TO PREPARE BOTH A
VOLUNTARY PLAN, EVEN IF OPPORTUNITY FOR FILING AND HEARING WERE TO BE
AFFORDED, AND A DEFENSE ON THE SEC. 11(B)(2) HEARING.  INDEED,
PETITIONERS RECOGNIZED THAT THE TIME WAS INADEQUATE FOR PREPARING THEIR
DEFENSE, FOR THEY APPLIED FOR POSTPONEMENT OF THE HEARING AND OTHER
RELIEF.  FN3  THE COMMISSION POSTPONED THE HEARING ONE WEEK, BUT FOUND
NO ADEQUATE GROUND FOR FURTHER EXTENSION. 

THE HEARING WAS COMMENCED ON JUNE 18, 1940.  ON JULY 23, 1941,
AMERICAN SUBMITTED ITS VOLUNTARY PLAN UNDER SEC. 11(E).  ON DECEMBER 3,
1941, ELECTRIC FILED ITS PLAN.  AND ON DECEMBER 6, 1941, BOTH COMPANIES
MOVED TO CONSOLIDATE THEIR APPLICATIONS WITH THE PENDING SEC. 11(B)(2)
PROCEEDINGS.  FN4  BY AGREEMENT OF COUNSEL CONSIDERATION OF THE MOTION
WAS DELAYED FOR THE COMMISSION TO PASS UPON AT THE END OF THE SEC.
11(B)(2) HEARING  FN5  AND ON JULY 22, 1942, THAT HEARING WAS CLOSED AS
TO PETITIONERS BY STIPULATION. 

ON AUGUST 31, 1942, THE COMMISSION FILED ITS OPINION IN SUPPORT OF
THE ORDERS WHICH ARE NOW ENFORCED.  IN THE SAME OPINION IT DENIED THE
MOTION TO CONSOLIDATE AND ALSO DENIED PETITIONERS ANY HEARING ON THEIR
VOLUNTARY PLANS.  THE MOTION WAS DENIED ON THE STATED GROUND:  "IT
APPEARS THAT IF CONSOLIDATION WERE GRANTED, THE RESULT WOULD BE TO
INJECT INTO THE PRESENT PROCEEDING ISSUES OF FACT AND LAW IN MANY
RESPECTS DIFFERENT FROM, AND UNRELATED TO, THOSE HERE INVOLVED.  IN
CONSEQUENCE, NO USEFUL PURPOSE WOULD BE SERVED BY PERMITTING THE
CONSOLIDATION OF THE 11(E) PLANS WITH THE PRESENT PROCEEDING, BUT ON
THE CONTRARY, DELAY AND CONFUSION WOULD INEVITABLY RESULT."  FN6
CONSISTENTLY, SEPARATE HEARING WAS DENIED AS TO THE VOLUNTARY PLANS
APPARENTLY ON THE GROUNDS THAT CONSIDERATION OF THEM WOULD DELAY THE
SEC. 11(B) PROCEEDING, SO AS TO DEFEAT THE STATUTORY POLICY OF PROMPT
ACTION,  FN7 AND THAT THE PLANS WERE INCOMPLETE AND INEFFECTIVE. 

IT IS APPARENT FROM THIS RECITAL THAT THE COMMISSION DID NOT AT ANY
TIME COMPLY WITH THE REQUIREMENT OF SEC. 11(E) THAT IT PROVIDE BY
RULES, REGULATIONS OR ORDER AN ORDERLY PROCEDURE TO CARRY OUT THE
VOLUNTARY PLANS.  AND IF PETITIONERS HAD STOOD UPON THEIR RIGHTS IN
THIS RESPECT, BY TIMELY ACTION TAKEN IN GOOD FAITH, THE COMMISSION'S
FAILURE TO OBSERVE THEM WOULD HAVE GIVEN GROUND FOR REVERSAL. 

BUT IT IS EQUALLY OBVIOUS THAT THE PETITIONERS DID NOT ASSERT THEIR
RIGHTS IN A MANNER WHICH INVALIDATES THE COMMISSION'S ACTION IN
ENTERING ITS SEC. 11(B)(2) ORDER OR MADE THE DENIAL OF THE MOTION FOR
HEARING REVERSIBLE ERROR.  THE PETITIONERS HAD NOTICE THAT THE
COMMISSION WOULD PROCEED WITH THE SEC. 11(B)(2) HEARING FROM THE TIME
SUCH NOTICE WAS GIVEN IN MAY, 1940.  THEY APPLIED FOR A CONTINUANCE. 
BUT THE RECORD DOES NOT DISCLOSE THAT THEY SOUGHT IT IN ORDER TO HAVE
TIME TO PREPARE AND SUBMIT A VOLUNTARY PLAN OR INDEED THAT THEY TOOK
ANY ACTION TOWARD SECURING A HEARING ON SUCH A PLAN UNTIL THEY
SUBMITTED THEIR PLANS.  IN ONE CASE THIS WAS MORE THAN A YEAR AFTER THE
SEC. 11(B) HEARING BEGAN, IN THE OTHER NEARLY A YEAR AND A HALF AFTER
THAT TIME.  WHEN SHORTLY AFTER THE LATTER SUBMISSION THE MOTIONS TO
CONSOLIDATE WERE MADE, CONSIDERATION WAS DEFERRED BY AGREEMENT OF
COUNSEL UNTIL THE END OF THE SEC. 11(B)(2) HEARING; AND ABOUT SEVEN
MONTHS LATER THAT HEARING WAS CLOSED AS TO THE PETITIONERS BY
STIPULATION. 

ALTHOUGH IN MY OPINION IT WAS THE COMMISSION'S DUTY INITIALLY TO MAKE
PROVISION FOR NOTICE AND HEARING ON VOLUNTARY PLANS, IN ACCORDANCE WITH
SEC. 11(E), THE PETITIONERS HARDLY CAN BE CONSIDERED TO HAVE BEEN
IGNORANT EITHER OF THIS DUTY OR OF THE COMMISSION'S FAILURE TO PERFORM
IT.  BY STANDING BY THROUGH THE LONG PERIOD OF THE SEC. 11(B)
PROCEEDINGS PRIOR TO THE TIME OF SUBMITTING THEIR PLANS WITHOUT TAKING
EARLIER ACTION TO SECURE PRESERVATION OF THEIR RIGHTS TO HEARING ON
SUCH PLANS, THE PETITIONERS SHOULD BE TAKEN TO HAVE WAIVED THEIR RIGHTS
TO SUCH HEARINGS.  THEY WERE NOT ENTITLED TO ASSERT THEM FOR THE FIRST
TIME AT SO LATE A STAGE IN THE SEC. 11(B) PROCEEDINGS.  NOR, IN MY
OPINION, IS THE COMMISSION REQUIRED TO GIVE FURTHER CONSIDERATION TO
SUCH PLANS IN THESE CASES, UNLESS IN ITS OWN DISCRETION IT SEES FIT TO
DO SO. FN8 

FN1  "IN ACCORDANCE WITH SUCH RULES AND REGULATIONS OR ORDER AS THE
COMMISSION MAY DEEM NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR
FOR THE PROTECTION OF INVESTORS OR CONSUMERS, ANY REGISTERED HOLDING
COMPANY OR ANY SUBSIDIARY COMPANY OF A REGISTERED HOLDING COMPANY MAY,
AT ANY TIME AFTER JANUARY 1, 1936, SUBMIT A PLAN TO THE COMMISSION FOR
THE DIVESTMENT OF CONTROL, SECURITIES, OR OTHER ASSETS, OR FOR OTHER
ACTION BY SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF FOR THE
PURPOSE OF ENABLING SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF TO
COMPLY WITH THE PROVISIONS OF SUBSECTION (B).  IF, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, THE COMMISSION SHALL FIND SUCH PLAN, AS
SUBMITTED OR AS MODIFIED, NECESSARY TO EFFECTUATE THE PROVISIONS OF
SUBSECTION (B) AND FAIR AND EQUITABLE TO THE PERSONS AFFECTED BY SUCH
PLAN, THE COMMISSION SHALL MAKE AN ORDER APPROVING SUCH PLAN; AND THE
COMMISSION, AT THE REQUEST OF THE COMPANY, MAY APPLY TO A COURT, IN
ACCORDANCE WITH THE PROVISIONS OF SUBSECTION (F) OF SECTION 18, TO
ENFORCE AND CARRY OUT THE TERMS AND PROVISIONS OF SUCH PLAN  ...."  49
STAT. 803, 822. 

FN2  THE REQUIREMENT OBVIOUSLY IS NOT A PERMISSION TO THE COMMISSION
TO DISPENSE ALTOGETHER WITH SUCH RULES, REGULATIONS OR ORDER IN ITS
DISCRETION.  IT IS RATHER A STATUTORY DIRECTION TO MAKE THEM IN
ACCORDANCE WITH THE STANDARDS PRESCRIBED.  ANY OTHER VIEW WOULD
CONTRADICT THE STATED PURPOSE OF THE SECTION AND MAKE OF IT, IN EFFECT,
A DEAD LETTER. 

FN3  THE APPLICATION STATED IN PART:  "IT IS OBVIOUS FROM THE NATURE
OF THE PROCEEDING ... THAT THE MATTERS TO BE DEALT WITH AT THE HEARING
ARE OF VITAL IMPORT TO THE RESPONDENTS AND THEIR SUBSIDIARIES, AS WELL
AS TO THE HUNDREDS OF THOUSANDS OF INVESTORS IN SECURITIES OF COMPANIES
IN THE ELECTRIC BOND AND SHARE COMPANY SYSTEM AND THE MILLIONS OF
CONSUMERS PRESENTLY RECEIVING NECESSARY PUBLIC UTILITY SERVICE FROM THE
OPERATING COMPANIES IN SAID SYSTEM.  IN THE CIRCUMSTANCES, RESPONDENTS
BELIEVE, FIRST, THAT THEY SHOULD BE GIVEN ADEQUATE TIME NOT ONLY TO
CHECK AND VERIFY THE NUMEROUS FACTUAL ALLEGATIONS CONTAINED IN THE
ORDER, BUT ALSO TO DEVELOP AND CORRELATE FOR PRESENTATION ALL OTHER
FACTS HAVING A BEARING UPON THE PROBLEMS AND ISSUES PRESENTED BY THE
NOTICE AND ORDER  ..." 

FN4  AT THE SAME TIME AMERICAN, WHICH PREVIOUSLY HAD FILED ITS PLAN
WITH THE COMMISSION, SOUGHT TO INTRODUCE THE PLAN AS AN EXHIBIT INTO
THE SEC. 11(B)(2) HEARING.  THE COMPANY'S ATTORNEY STATED, "THIS PLAN
WHICH HAS BEEN FILED BY AMERICAN POWER & LIGHT COMPANY WITH THE
COMMISSION SETS FORTH A PROPOSAL FOR THE COMPLIANCE WITH SECTION 11 OF
THE ACT, AND I THINK THAT IT IS MATERIAL AND RELEVANT IN THIS
PROCEEDING."  THE REPLY OF THE TRIAL EXAMINER, SUSTAINING AN OBJECTION
TO ITS ADMISSION, APPARENTLY TYPIFIES THE ATTITUDE OF THE COMMISSION
TOWARD THE REQUIREMENTS OF SEC. 11(E):  "QUITE POSSIBLY IT RELATES TO
WANT TO CONSIDER BEFORE IT FINALLY MAKES UP ITS MIND.  IT IS QUITE
PROBABLE.  BUT, NEVERTHELESS, WE ARE HERE RESTRICTED TO THIS PARTICULAR
PROCEEDING AND NOT THE POWER OF THE COMMISSION OR THE ACTION OF THE
COMMISSION.  THE HEARING IS RESTRICTED TO 11(B)(2)." 

THE COMMISSION AT NO TIME BEFORE OR DURING THE HEARING RECOGNIZED
THAT SEC. 11(E) PLANS NOT ONLY WERE RELEVANT TO WHETHER ACTION SHOULD
BE TAKEN UNDER SEC. 11(B)(2), BUT ALSO WERE REQUIRED TO BE CONSIDERED
BY HEARING BEFORE SUCH ACTION IS TAKEN.  ITS VIEW APPARENTLY IS TO THE
CONTRARY.  SEE MATTER OF ELECTRIC BOND & SHARE CO., 11 S.E.C. 1146,
1217-1218, QUOTED IN NOTE 7 INFRA; MATTER OF COMMONWEALTH & SOUTHERN
CORP., 11 S.E.C. 138, 154-156.  THE EXAMINER, OF COURSE, COULD NOT HELP
HIMSELF.  THE HEARING HAD BEEN LIMITED TO SEC. 11(B)(2).  7 S.E.C.
391. 

FN5  THE RECORD DOES NOT DISCLOSE WHAT THE AGREEMENT WAS OR FOR WHAT
REASONS IT WAS MADE.  TO DELAY CONSIDERATION OF THE MOTION TO
CONSOLIDATE WAS IN EFFECT TO DENY IT INSOFAR AS IT SOUGHT A JOINT
HEARING, THOUGH IT WAS ALWAYS POSSIBLE FOR THE COMMISSION TO ORDER A
HEARING ON THE VOLUNTARY PLANS BEFORE IT ISSUED ITS SEC. 11(B)(2)
ORDER. 

FN6  11 S.E.C. 1146, 1152.  THE COMMISSION NOTED THAT "THESE PLANS
WERE FILED AT A TIME WHEN THE RECORD IN THE PRESENT PROCEEDING WAS
NEARING COMPLETION."  IBID. 

FN7  "WITH RESPECT TO THE FORMER POINT, THAT OF PROMPTNESS, IT NEED
ONLY BE CONSIDERED THAT IT WOULD BE NECESSARY FOR RESPONDENTS AND THE
PUBLIC UTILITIES DIVISION TO FORMULATE AND PRESENT, AND FOR US TO
EXPLORE, DETAILED AND VERY EXTENSIVE EVIDENCE ON A NUMBER OF EXTREMELY
COMPLEX SUBJECTS BEFORE IT WOULD BE POSSIBLE FOR US TO DETERMINE EVEN
THE PRELIMINARY QUESTION OF WHETHER THE 11(E) PLANS DO IN FACT
CONSTITUTE ACCEPTABLE ALTERNATIVE COURSES OF ACTION FOR ACHIEVING THE
OBJECTIVES OF SECTION 11.  IN THE EVENT IT WERE NECESSARY TO DETERMINE
THE QUESTION IN THE NEGATIVE, PRESUMABLY WE SHOULD BE FREE (EVEN UNDER
RESPONDENTS' CONTENTION) TO ENTER OUR ORDER OF DISSOLUTION HEREIN
FOLLOWING THE LENGTHY DELAY, UNLESS RESPONDENTS IN THE MEANTIME
PROPOSED A NEW 11(E) PLAN WHICH WOULD NECESSITATE A REPETITION OF THIS
PROCESS.  ON THE OTHER HAND, IN THE EVENT WE WERE ULTIMATELY ABLE TO
APPROVE THE PLANS, THEY WOULD STILL NOT BECOME EFFECTIVE UNLESS AND
UNTIL RATIFIED BY VOTE OF THE COMPANIES' STOCKHOLDERS. 

"CONSIDERING THAT 7 YEARS HAVE NOW GONE BY SINCE THE EFFECTIVE DATE
OF THE ACT, THAT 4 1/2 YEARS HAVE ELAPSED SINCE THE DATE AFTER WHICH
ACTION UNDER SECTION 11 WAS TO BE REQUIRED 'AS SOON AS PRACTICABLE,'
AND THAT MORE THAN 2 YEARS HAVE BEEN CONSUMED SINCE THE PRESENT
PROCEEDING WAS INSTITUTED, IT IS EVIDENT THAT RESPONDENTS' PROGRAM IS
TOO FRAUGHT WITH POTENTIALITIES OF DELAY TO BE ACCEPTABLE AS A
SUBSTITUTE FOR A DISSOLUTION ORDER TO MEET THE PROBLEMS EXISTING UNDER
COMPLIANCE WITH SECTION 11(B) WAS NOT INTENDED TO OUST THE COMMISSION
OF ITS JURISDICTION, OR RELIEVE IT OF ITS OBLIGATION, TO ENFORCE THE
PROVISIONS OF 11(B)."  11 S.E.C. 1146, 1217-1218.  COMPARE NOTES 4 AND
6, SUPRA.    FN8  CF. SEC. 11(B):  "THE COMMISSION MAY BY ORDER REVOKE
OR MODIFY ANY ORDER PREVIOUSLY MADE UNDER THIS SUBSECTION, IF, AFTER
NOTICE AND OPPORTUNITY FOR HEARING, IT FINDS THAT THE CONDITIONS UPON
WHICH THE ORDER WAS PREDICATED DO NOT EXIST."  49 STAT. 803, 821. 
..END :












HALLIBURTON CO. V. WALKER, 329 U.S. 1 


NO. 24.  REARGUED OCTOBER 23, 24, 1946.  - DECIDED NOVEMBER 18, 1946.  -
146 F.2D 817, REVERSED. 


1.  WALKER PATENT NO. 2,156,519 FOR AN IMPROVEMENT OVER A PAST PATENT
DESIGNED TO MEASURE THE DISTANCE FROM THE TOP OF AN OIL WELL TO THE
FLUID SURFACE OF THE OIL, HELD INVALID FOR FAILURE OF THE CLAIMS TO
MAKE THE "FULL, CLEAR, CONCISE, AND EXACT" DESCRIPTION OF THE ALLEGED
INVENTION REQUIRED BY R.S. SEC. 4888, 35 U.S.C. SEC. 33.  PP. 11-14. 

2.  A CLAIM WHICH DESCRIBES THE MOST CRUCIAL ELEMENT IN A "NEW"
COMBINATION IN TERMS OF WHAT IT WILL DO RATHER THAN IN TERMS OF ITS OWN
PHYSICAL CHARACTERISTICS OR ITS ARRANGEMENT IN THE NEW COMBINATION IS
INVALID AS A VIOLATION OF R.S. SEC. 4888.  HOLLAND FURNITURE CO. V.
PERKINS GLUE CO., 277 U.S. 245; GENERAL ELECTRIC CO. V. WABASH
APPLIANCE CORP., 304 U.S. 364.  PP. 8, 9. 

3.  AS USED IN R.S. SEC. 4888, THE WORD "MACHINE" INCLUDES A
COMBINATION OF OLD ELEMENTS.  P. 9. 

4.  THE REQUIREMENT OF R.S. SEC. 4888 FOR A "FULL, CLEAR, CONCISE,
AND EXACT" DESCRIPTION IN CLAIMS APPLIES TO A COMBINATION OF OLD
DEVICES.  PP. 9-11. 

5.  UNDER R.S. SEC. 4888, A PATENTEE CANNOT OBTAIN GREATER COVERAGE
BY FAILING ACCURATELY TO DESCRIBE HIS INVENTION THAN BY DESCRIBING IT
AS THE STATUTE COMMANDS.  P. 13. 

HALLIBURTON OIL WELL CEMENTING CO. V. WALKER ET AL., DOING BUSINESS AS
DEPTHOGRAPH CO. 

ON REHEARING. 

RESPONDENT SUED PETITIONER FOR INFRINGEMENT OF WALKER PATENT NO.
2,156,519.  THE DISTRICT COURT HELD THE CLAIMS IN ISSUE VALID AND
INFRINGED BY PETITIONER.  THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT AFFIRMED, 146 F.2D 817, AND DENIED A PETITION FOR REHEARING. 
149 F.2D 896.  THIS COURT GRANTED CERTIORARI.  326 U.S. 705.  THE CASE
WAS AFFIRMED BY AN EVENLY DIVIDED COURT.  326 U.S. 696.  A PETITION FOR
REHEARING WAS GRANTED AND THE CASE WAS RESTORED TO THE DOCKET FOR
REARGUMENT BEFORE A FULL BENCH.  327 U.S. 812.  REVERSED, P. 14. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

CRANFORD P. WALKER, OWNER OF PATENT NO. 2,156,519, AND THE OTHER
RESPONDENTS, LICENSEES UNDER THE PATENT, BROUGHT THIS SUIT IN A FEDERAL
DISTRICT COURT ALLEGING THAT PETITIONER, HALLIBURTON OIL WELL CEMENTING
COMPANY, HAD INFRINGED CERTAIN OF THE CLAIMS OF THE WALKER PATENT.  THE
DISTRICT COURT HELD THE CLAIMS IN ISSUE VALID AND INFRINGED BY
HALLIBURTON.  THE CIRCUIT COURT OF APPEALS AFFIRMED, 146 F.2D 817, AND
DENIED HALLIBURTON'S PETITION FOR REHEARING.  149 F.2D 896. 
PETITIONER'S APPLICATION TO THIS COURT FOR CERTIORARI URGED, AMONG
OTHER GROUNDS, THAT THE CLAIMS HELD VALID FAILED TO MAKE THE "FULL,
CLEAR, CONCISE, AND EXACT" DESCRIPTION OF THE ALLEGED INVENTION
REQUIRED BY REV. STAT. 4888, 35 U.S.C. SEC. 33,  FN1  AS THAT STATUTE
WAS INTERPRETED BY US IN GENERAL ELECTRIC CO. V. WABASH APPLIANCE
CORP., 304 U.S. 364.  FN2  THIS STATUTORY REQUIREMENT OF DISTINCTNESS
AND CERTAINTY IN CLAIMS IS IMPORTANT IN PATENT LAW.  WE GRANTED
CERTIORARI TO CONSIDER WHETHER IT WAS CORRECTLY APPLIED IN THIS CASE. 
326 U.S. 705.  FN3 

THE PATENT IN SUIT WAS SUSTAINED AS EMBODYING AN IMPROVEMENT OVER A
PAST PATENT OF LEHR AND WYATT (NO. 2,047,974) UPON AN APPARATUS
DESIGNED TO FACILITATE THE PUMPING OF OIL OUT OF WELLS WHICH DO NOT
HAVE SUFFICIENT NATURAL PRESSURES TO FORCE THE OIL TO GUSH.  AN OUTLINE
OF THE BACKGROUND AND SETTING OF THESE PATENTS IS HELPFUL TO AN
UNDERSTANDING OF THE PROBLEM PRESENTED. 

IN ORDER TO OPERATE A PUMP IN AN OIL WELL MOST EFFICIENTLY, CHEAPLY,
AND WITH THE LEAST WASTE, THE PUMP MUST BE PLACED IN AN APPROPRIATE
RELATIONSHIP TO THE FLUID SURFACE OF THE OIL.  PROPERLY TO PLACE THE
PUMP IN THIS RELATIONSHIP REQUIRES KNOWLEDGE OF THE DISTANCE FROM THE
WELL TOP TO THE FLUID SURFACE.  AT LEAST BY THE LATTER 1920'S PROBLEMS
OF WASTE AND EXPENSE IN CONNECTION WITH NON-GUSHER OIL WELLS PRESSED
UPON THE INDUSTRY.  SEE RAILROAD COMM'N OF TEXAS V. ROWAN & NICHOLS OIL
CO., 310 U.S. 573; BURFORD V. SUN OIL CO., 319 U.S. 315.  IT BECAME
APPARENT THAT INEFFICIENT PUMPING, ONE CAUSE OF WASTE, WAS IN SOME
MEASURE ATTRIBUTABLE TO LACK OF ACCURATE KNOWLEDGE OF DISTANCE FROM
WELL TOP TO FLUID SURFACE.  ABILITY TO MEASURE THIS DISTANCE IN EACH
SEPARATE NON-GUSHER OIL WELL BECAME AN OBVIOUS NEXT STEP IN THE
SOLUTION OF THIS MINOR ASPECT OF THE PROBLEM OF WASTE. 

THE SURFACE AND INTERNAL MACHINERY AND THE CORKSCREW CONFORMATION OF
SOME OIL WELLS MAKE IT IMPRACTICAL TO MEASURE DEPTH BY THE FAMILIAR
METHOD OF LOWERING A ROPE OR CABLE.  IN CASTING ABOUT FOR AN
ALTERNATIVE METHOD IT WAS QUITE NATURAL TO HIT UPON THE POSSIBILITY OF
UTILIZING A SOUND-ECHO-TIME METHOD.  UNKNOWN DISTANCES HAD FREQUENTLY
BEEN ASCERTAINED BY THIS METHOD.  GIVEN THE TIME ELAPSING BETWEEN THE
INJECTION OF A SOUND INTO AN OIL WELL AND THE RETURN OF ITS ECHO FROM
THE FLUID SURFACE, AND ASSUMING THE VELOCITY OF THE SOUND TO BE ABOUT
1100 FEET PER SECOND, AS IT IS IN THE OPEN AIR, IT WOULD BE EASY TO
FIND THE DISTANCE.  NOT ONLY HAD THIS SOUND-ECHO-TIME METHOD BEEN LONG
KNOWN AND GENERALLY USED TO FIND UNKNOWN DISTANCES, BUT IN 1898
BATCHELLER, IN PATENT NO. 602,422, HAD DESCRIBED AN APPARATUS TO FIND A
DISTANCE IN A TUBULAR SPACE.  OBVIOUSLY AN OIL WELL IS SUCH A SPACE. 
HE DESCRIBED A DEVICE WHEREBY THE NOISE FROM A GUN MIGHT BE INJECTED
INTO A TUBE; THE RETURNING ECHOES FROM OBSTRUCTIONS AGITATED A
DIAPHRAGM, WHICH IN TURN MOVED A STYLUS.  THE STYLUS RECORDED ON A
PIECE OF PAPER A GRAPH OR DIAGRAM SHOWING THE VARIANT MOVEMENTS OF THE
DIAPHRAGM CAUSED BY ITS RESPONSE TO ALL THE DIFFERENT ECHO WAVES. 

IN THE LATE 1920'S THE OIL INDUSTRY BEGAN TO EXPERIMENT IN THE USE OF
THIS SAME SOUND-ECHO-TIME METHOD FOR MEASURING THE DISTANCE TO THE
FLUID SURFACE IN DEEP OIL WELLS.  A PRODUCT OF THIS EXPERIMENTATION WAS
THE LEHR AND WYATT PATENT, UPON WHICH THE PRESENT PATENT CLAIMS TO BE
AN IMPROVEMENT.  IT PROPOSED TO MEASURE THE DISTANCE BY MEASURING THE
TIME OF TRAVEL OF THE ECHO OF AN "IMPULSE WAVE" GENERATED BY A "SUDDEN
CHANGE IN PRESSURE."  THE APPARATUS DESCRIBED INCLUDED A GAS CYLINDER
WITH A QUICK OPERATING VALVE BY MEANS OF WHICH A SHORT BLAST OF GAS
COULD BE INJECTED INTO A WELL.  IT WAS STATED IN THE PATENT THAT THE
TIME ELAPSING BETWEEN THE RELEASE OF THE GAS AND THE RETURN OF THE ECHO
OF THE WAVES PRODUCED BY IT COULD BE OBSERVED IN ANY DESIRED MANNER. 
BUT THE PATENTEE'S APPLICATION AND DRAWINGS NOTED THAT THE WAVE
IMPULSES COULD BE RECORDED BY USE OF A MICROPHONE WHICH MIGHT INCLUDE
AN AMPLIFIER AND AN APPROPRIATE DEVICE TO RECORD A PICTURE OF THE WAVE
IMPULSES. 

THIS LEHR AND WYATT PATENT, IT IS THEREFORE APPARENT, SIMPLY PROVIDED
AN APPARATUS COMPOSED OF OLD AND WELL-KNOWN DEVICES TO MEASURE THE TIME
REQUIRED FOR PRESSURE WAVES TO MOVE TO AND BACK FROM THE FLUID SURFACE
OF AN OIL WELL.  BUT THE ASSUMPTION THAT SOUND AND PRESSURE WAVES WOULD
TRAVEL IN OIL WELLS AT OPEN-AIR VELOCITY OF 1100 FEET PER SECOND PROVED
TO BE ERRONEOUS.  FOR THIS REASON THE TIME-VELOCITY COMPUTATION OF LEHR
AND WYATT FOR MEASURING THE DISTANCE TO THE FLUID SURFACE PRODUCED
INACCURATE RESULTS. 

AFTER CONFERENCES WITH LEHR, WALKER UNDERTOOK TO SEARCH FOR A METHOD
WHICH WOULD MORE ACCURATELY INDICATE THE SOUND AND PRESSURE WAVE
VELOCITY IN EACH WELL.  WALKER WAS FAMILIAR WITH THE STRUCTURE OF OIL
WELLS.  THE OIL FLOW PIPE IN A WELL, KNOWN AS A TUBING STRING, IS
JOINTED AND WHERE THESE JOINTS OCCUR THERE ARE COLLARS OR SHOULDERS. 
THERE ARE ALSO ONE OR MORE RELATIVELY PROMINENT PROJECTIONS ON THE OIL
FLOW PIPE KNOWN AS TUBING CATCHERS.  IN WELLS WHERE THE DISTANCE TO THE
TUBING CATCHER IS KNOWN, WALKER OBSERVED THAT THE DISTANCE TO THE FLUID
SURFACE COULD BE MEASURED BY A SIMPLE TIME-DISTANCE PROPORTION
FORMULA.  FN4  FOR THOSE WELLS IN WHICH THE DISTANCE TO THE TUBING
CATCHER WAS UNKNOWN, WALKER ALSO SUGGESTED ANOTHER IDEA.  THE SECTIONS
OF TUBING PIPE USED IN A GIVEN OIL WELL ARE GENERALLY OF EQUAL LENGTH. 
THEREFORE THE SHOULDERS IN A GIVEN WELL ORDINARILY ARE AT EQUAL
INTERVALS FROM EACH OTHER.  BUT THE SECTION LENGTH AND THEREFORE THE
INTERVAL MAY VARY FROM WELL TO WELL.  WALKER CONCLUDED THAT HE COULD
MEASURE THE UNKNOWN DISTANCE TO THE TUBING CATCHER IF HE COULD OBSERVE
AND RECORD THE SHOULDER ECHO WAVES.  THUS MULTIPLICATION OF THE NUMBER
OF SHOULDERS OBSERVED BY THE KNOWN LENGTH OF A PIPE SECTION WOULD
PRODUCE THE DISTANCE TO THE TUBING CATCHER.  WITH THIS DISTANCE, HE
COULD SOLVE THE DISTANCE TO THE FLUID SURFACE BY THE SAME PROPORTION
FORMULA USED WHEN THE DISTANCE TO THE TUBING CATCHER WAS A MATTER OF
RECORD.  THE LEHR AND WYATT INSTRUMENT COULD RECORD ALL THESE ECHO
WAVES.  BUT THE POTENTIAL USEFULNESS OF THE ECHOES FROM THE SHOULDERS
AND THE TUBING CATCHER WHICH THEIR MACHINE RECORDED HAD NOT OCCURRED TO
LEHR AND WYATT AND CONSEQUENTLY THEY HAD MADE NO EFFORT BETTER TO
OBSERVE AND RECORD THEM.  WALKER'S CONTRIBUTION WHICH HE CLAIMS TO BE
INVENTION WAS IN EFFECT TO ADD TO LEHR AND WYATT'S APPARATUS A WELL
KNOWN DEVICE WHICH WOULD MAKE THE REGULARLY APPEARING SHOULDER ECHO
WAVES MORE PROMINENT ON THE GRAPH AND EASIER TO COUNT. 

THE DEVICE ADDED WAS A MECHANICAL ACOUSTICAL RESONATOR.  THIS WAS A
SHORT PIPE WHICH WOULD RECEIVE WAVE IMPULSES AT THE MOUTH OF THE WELL. 
WALKER'S TESTIMONY WAS, AND HIS SPECIFICATIONS STATE, THAT BY MAKING
THE LENGTH OF THIS TUBAL RESONATOR ONE-THIRD THE LENGTH OF THE TUBING
JOINTS, THE RESONATOR WOULD SERVE AS A TUNER, ADJUSTED TO THE FREQUENCY
OF THE SHOULDER ECHO WAVES.  IT WOULD SIMULTANEOUSLY AMPLIFY THESE ECHO
WAVES AND ELIMINATE UNWANTED ECHOES FROM OTHER OBSTRUCTIONS THUS
PRODUCING A CLEARER PICTURE OF THE SHOULDER ECHO WAVES.  HIS
SPECIFICATIONS SHOW, ATTACHED TO THE TUBAL RESONATOR, A COUPLER, THE
MANIPULATION OF WHICH WOULD ADJUST THE LENGTH OF THE TUBE TO ONE-THIRD
OF THE INTERVAL BETWEEN SHOULDERS IN A PARTICULAR WELL.  HIS
SPECIFICATIONS AND DRAWINGS ALSO SHOW THE PHYSICAL STRUCTURE OF A
COMPLETE APPARATUS, DESIGNED TO INJECT PRESSURE IMPULSES INTO A WELL,
AND TO RECEIVE, NOTE, RECORD AND TIME THE IMPULSE WAVES. 

THE DISTRICT COURT HELD THE CLAIMS HERE IN SUIT VALID UPON ITS
FINDING THAT WALKER'S "APPARATUS DIFFERS FROM AND IS AN IMPROVEMENT
OVER THE PRIOR ART IN THE INCORPORATION IN SUCH APPARATUS OF A TUNED
ACOUSTICAL MEANS WHICH PERFORMS THE FUNCTION OF A SOUND FILTER  ..." 
THE CIRCUIT COURT OF APPEALS AFFIRMED THIS HOLDING, STATING THAT THE
TRIAL COURT HAD FOUND "THAT THE ONLY PART OF THIS PATENT CONSTITUTING
INVENTION OVER THE PRIOR ART IS THE 'TUNED ACOUSTICAL MEANS WHICH
PERFORMS THE FUNCTIONS OF A SOUND FILTER.'" 

FOR OUR PURPOSE IN PASSING UPON THE SUFFICIENCY OF THE CLAIMS AGAINST
PROHIBITED INDEFINITENESS WE CAN ACCEPT WITHOUT RATIFYING THE FINDINGS
OF THE LOWER COURT THAT THE ADDITION OF "A TUNED ACOUSTICAL MEANS"
PERFORMING THE "FUNCTION OF A SOUND FILTER" BROUGHT ABOUT A NEW
PATENTABLE COMBINATION, EVEN THOUGH IT ADVANCED ONLY A NARROW STEP
BEYOND LEHR AND WYATT'S OLD COMBINATION.  FN5  WE MUST, HOWEVER,
DETERMINE WHETHER, AS PETITIONER CHARGES, THE CLAIMS HERE HELD VALID
RUN AFOUL OF REV. STAT. 4888 BECAUSE THEY DO NOT DESCRIBE THE INVENTION
BUT USE "CONVENIENTLY FUNCTIONAL LANGUAGE AT THE EXACT POINT OF
NOVELTY."  GENERAL ELECTRIC CO. V. WABASH APPLIANCE CORP., SUPRA, AT
371. 

WALKER, IN SOME OF HIS CLAIMS, E.G., CLAIMS 2 AND 3, DOES DESCRIBE
THE TUNED ACOUSTICAL PIPE AS AN INTEGRAL PART OF HIS INVENTION, SHOWING
ITS STRUCTURE, ITS WORKING ARRANGEMENT IN THE ALLEGED NEW COMBINATION,
AND THE MANNER OF ITS CONNECTION WITH THE OTHER PARTS.  BUT NO ONE OF
THE CLAIMS ON WHICH THIS JUDGMENT RESTS HAS EVEN SUGGESTED THE PHYSICAL
STRUCTURE OF THE ACOUSTICAL RESONATOR.  FN6  NO ONE OF THESE CLAIMS
DESCRIBES THE PHYSICAL RELATION OF THE WALKER ADDITION TO THE OLD LEHR
AND WYATT MACHINE.  NO ONE OF THESE CLAIMS DESCRIBES THE MANNER IN
WHICH THE WALKER ADDITION WILL OPERATE TOGETHER WITH THE OLD LEHR AND
WYATT MACHINE SO AS TO MAKE THE "NEW" UNITARY APPARATUS PERFORM ITS
DESIGNED FUNCTION.  THUS THE CLAIMS FAILED ADEQUATELY TO DEPICT THE
STRUCTURE, MODE, AND OPERATION OF THE PARTS IN COMBINATION. 

A CLAIM TYPICAL OF ALL OF THOSE HELD VALID ONLY DESCRIBES THE
RESONATOR AND ITS RELATION WITH THE REST OF THE APPARATUS AS "MEANS
ASSOCIATED WITH SAID PRESSURE RESPONSIVE DEVICE FOR TUNING SAID
RECEIVING MEANS TO THE FREQUENCY OF ECHOES FROM THE TUBING COLLARS OF
SAID TUBING SECTIONS TO CLEARLY DISTINGUISH THE ECHOES FROM SAID
COUPLINGS FROM EACH OTHER."  FN7  THE LANGUAGE OF THE CLAIM THUS
DESCRIBES THIS MOST CRUCIAL ELEMENT IN THE "NEW" COMBINATION IN TERMS
OF WHAT IT WILL DO RATHER THAN IN TERMS OF ITS OWN PHYSICAL
CHARACTERISTICS OR ITS ARRANGEMENT IN THE NEW COMBINATION APPARATUS. 
WE HAVE HELD THAT A CLAIM WITH SUCH A DESCRIPTION OF A PRODUCT IS
INVALID AS A VIOLATION OF REV. STAT. 4888.  HOLLAND FURNITURE CO. V.
PERKINS GLUE CO., 277 U.S. 245, 256-57; GENERAL ELECTRIC CO. V. WABASH
APPLIANCE CORP., SUPRA.  WE UNDERSTAND THAT THE CIRCUIT COURT OF
APPEALS HELD THAT THE SAME RIGID STANDARDS OF DESCRIPTION REQUIRED FOR
PRODUCT CLAIMS IS NOT REQUIRED FOR A COMBINATION PATENT EMBODYING OLD
ELEMENTS ONLY.  WE HAVE A DIFFERENT VIEW. 

REV. STAT. 4888 POINTEDLY PROVIDES THAT "IN CASE OF A MACHINE, HE
(THE PATENTEE) SHALL EXPLAIN THE PRINCIPLE THEREOF, AND THE BEST MODE
IN WHICH HE HAS CONTEMPLATED APPLYING THAT PRINCIPLE, SO AS TO
DISTINGUISH IT FROM OTHER INVENTIONS; AND HE SHALL PARTICULARLY POINT
OUT AND DISTINCTLY CLAIM THE PART, IMPROVEMENT, OR COMBINATION WHICH HE
CLAIMS AS HIS INVENTION OR DISCOVERY."  IT HAS LONG BEEN HELD THAT THE
WORD "MACHINE" INCLUDES A COMBINATION.  CORNING V. BURDEN, 15 HOW. 
252, 267.  WE ARE NOT PERSUADED THAT THE PUBLIC AND THOSE AFFECTED BY
PATENTS SHOULD LOSE THE PROTECTION OF THIS STATUTE MERELY BECAUSE THE
PATENTED DEVICE IS A COMBINATION OF OLD ELEMENTS. 

PATENTS ON MACHINES WHICH JOIN OLD AND WELL-KNOWN DEVICES WITH THE
DECLARED OBJECT OF ACHIEVING NEW RESULTS, OR PATENTS WHICH ADD AN OLD
ELEMENT TO IMPROVE A PREEXISTING COMBINATION, EASILY LEND THEMSELVES TO
ABUSE.  AND TO PREVENT EXTENSION OF A PATENT'S SCOPE BEYOND WHAT WAS
ACTUALLY INVENTED, COURTS HAVE VIEWED CLAIMS TO COMBINATIONS AND
IMPROVEMENTS OR ADDITIONS TO THEM WITH VERY CLOSE SCRUTINY.  CF.
LINCOLN ENGINEERING CO. V. STEWART-WARNER CORP., 303 U.S. 545, 549-51. 
FOR THE SAME REASON, COURTS HAVE QUALIFIED THE SCOPE OF WHAT IS MEANT
BY THE EQUIVALENT OF AN INGREDIENT OF A COMBINATION OF OLD ELEMENTS. 
GILL V. WELLS, 22 WALL.  1, 28, 29; FULLER V. YENTZER, 94 U.S. 288,
297, 298.  IT IS QUITE CONSISTENT WITH THIS STRICT INTERPRETATION OF
PATENTS FOR MACHINES WHICH COMBINE OLD ELEMENTS TO REQUIRE CLEAR
DESCRIPTION IN COMBINATION CLAIMS.  THIS VIEW, CLEARLY EXPRESSED IN
GILL V. WELLS, SUPRA, IS THAT    "WHERE THE INGREDIENTS ARE ALL OLD THE
INVENTION  ...  CONSISTS ENTIRELY IN THE COMBINATION, AND THE
REQUIREMENT OF THE PATENT ACT THAT THE INVENTION SHALL BE FULLY AND
EXACTLY DESCRIBED APPLIES WITH AS MUCH FORCE TO SUCH AN INVENTION AS TO
ANY OTHER CLASS, BECAUSE IF NOT FULFILLED ALL THREE OF THE GREAT ENDS
INTENDED TO BE ACCOMPLISHED BY THAT REQUIREMENT WOULD BE DEFEATED....
(1.)  THAT THE GOVERNMENT MAY KNOW WHAT THEY HAVE GRANTED AND WHAT WILL
BECOME PUBLIC PROPERTY WHEN THE TERM OF THE MONOPOLY EXPIRES.  (2.) 
THAT LICENSED PERSONS DESIRING TO PRACTICE THE INVENTION MAY KNOW,
DURING THE TERM, HOW TO MAKE, CONSTRUCT, AND USE THE INVENTION.  (3.) 
THAT OTHER INVENTORS MAY KNOW WHAT PART OF THE FIELD OF INVENTION IS
UNOCCUPIED. 

"PURPOSES SUCH AS THESE ARE OF GREAT IMPORTANCE IN EVERY CASE, BUT
THE FULFILMENT OF THEM IS NEVER MORE NECESSARY THAN WHEN SUCH INQUIRIES
ARISE IN RESPECT TO A PATENT FOR A MACHINE WHICH CONSISTS OF A
COMBINATION OF OLD INGREDIENTS.  PATENTS OF THAT KIND ARE MUCH MORE
NUMEROUS THAN ANY OTHER, AND CONSEQUENTLY IT IS OF THE GREATEST
IMPORTANCE THAT THE DESCRIPTION OF THE COMBINATION, WHICH IS THE
INVENTION, SHOULD BE FULL, CLEAR, CONCISE, AND EXACT."  GILL V. WELLS,
SUPRA, AT 25-26. 

THESE PRINCIPLES WERE AGAIN EMPHASIZED IN MERRILL V. YEOMANS, 94 U.S.
568, 570, WHERE IT WAS SAID THAT "...  IN CASES WHERE THE INVENTION IS
A NEW COMBINATION OF OLD DEVICES, HE (THE PATENTEE) IS BOUND TO
DESCRIBE WITH PARTICULARITY ALL THESE OLD DEVICES, AND THEN THE NEW
MODE OF COMBINING THEM, FOR WHICH HE DESIRES A PATENT."  THIS VIEW HAS
MOST RECENTLY BEEN REITERATED IN GENERAL ELECTRIC CO. V. WABASH
APPLIANCE CORP., SUPRA, AT 368, 369.  COGENT REASONS WOULD HAVE TO BE
PRESENTED TO PERSUADE US TO DEPART FROM THIS ESTABLISHED DOCTRINE.  THE
FACTS OF THE CASE BEFORE US, FAR FROM UNDERMINING OUR CONFIDENCE IN
THESE EARLIER PRONOUNCEMENTS, REINFORCE THE CONCLUSION THAT THE
STATUTORY REQUIREMENT FOR A CLEAR DESCRIPTION OF CLAIMS APPLIES TO A
COMBINATION OF OLD DEVICES. 

THIS PATENT AND THE INFRINGEMENT PROCEEDINGS BROUGHT UNDER IT
ILLUSTRATE THE HAZARDS OF CARVING OUT AN EXCEPTION TO THE SWEEPING
DEMAND CONGRESS MADE IN REV. STAT. 4888.  NEITHER IN THE SPECIFICATION,
THE DRAWING, NOR IN THE CLAIMS HERE UNDER CONSIDERATION, WAS THERE ANY
INDICATION THAT THE PATENTEE CONTEMPLATED ANY SPECIFIC STRUCTURAL
ALTERNATIVE FOR THE ACOUSTICAL RESONATOR OR FOR THE RESONATOR'S
RELATIONSHIP TO THE OTHER PARTS OF THE MACHINE.  PETITIONER WAS WORKING
IN A FIELD CROWDED ALMOST, IF NOT COMPLETELY, TO THE POINT OF
EXHAUSTION.  IN 1920, TUCKER, IN PATENT NO. 1,351,356, HAD SHOWN A
TUNED ACOUSTICAL RESONATOR IN A SOUND DETECTING DEVICE WHICH MEASURED
DISTANCES.  LEHR AND WYATT HAD PROVIDED FOR AMPLIFICATION OF THEIR
WAVES.  SUFFICIENT AMPLIFICATION AND EXAGGERATION OF ALL THE DIFFERENT
WAVES WHICH LEHR AND WYATT RECORDED ON THEIR MACHINE WOULD HAVE MADE IT
EASY TO DISTINGUISH THE TUBING CATCHER AND REGULAR SHOULDER WAVES FROM
ALL OTHERS.  FOR, EVEN WITHOUT THIS AMPLIFICATION, THE ECHO WAVES FROM
TUBING COLLARS COULD BY PROPER MAGNIFICATION HAVE BEEN RECORDED AND
ACCURATELY COUNTED, HAD LEHR AND WYATT RECOGNIZED THEIR IMPORTANCE IN
COMPUTING THE VELOCITY.  CF. GENERAL ELECTRIC CO. V. JEWEL INCANDESCENT
LAMP CO., 326 U.S. 242. 

UNDER THESE CIRCUMSTANCES THE BROADNESS, AMBIGUITY, AND OVERHANGING
THREAT OF THE FUNCTIONAL CLAIM OF WALKER BECOME APPARENT.  WHAT HE
CLAIMED IN THE COURT BELOW AND WHAT HE CLAIMS HERE IS THAT HIS PATENT
BARS ANYONE FROM USING IN AN OIL WELL ANY DEVICE HERETOFORE OR
HEREAFTER INVENTED WHICH COMBINED WITH THE LEHR AND WYATT MACHINE
PERFORMS THE FUNCTION OF CLEARLY AND DISTINCTLY CATCHING AND RECORDING
ECHOES FROM TUBING JOINTS WITH REGULARITY.  JUST HOW MANY DIFFERENT
DEVICES THERE ARE OF VARIOUS KINDS AND CHARACTERS WHICH WOULD SERVE TO
EMPHASIZE THESE ECHOES, WE DO NOT KNOW.  THE HALLIBURTON DEVICE,
ALLEGED TO INFRINGE, EMPLOYS AN ELECTRIC FILTER FOR THIS PURPOSE.  IN
THIS AGE OF TECHNOLOGICAL DEVELOPMENT THERE MAY BE MANY OTHER DEVICES
BEYOND OUR PRESENT INFORMATION OR INDEED OUR IMAGINATION WHICH WILL
PERFORM THAT FUNCTION AND YET FIT THESE CLAIMS.  AND UNLESS FRIGHTENED
FROM THE COURSE OF EXPERIMENTATION BY BROAD FUNCTIONAL CLAIMS LIKE
THESE, INVENTIVE GENIUS MAY EVOLVE MANY MORE DEVICES TO ACCOMPLISH THE
SAME PURPOSE.  SEE UNITED CARBON CO. V. BINNEY & SMITH CO., 317 U.S.
228, 236; BURR V. DURYEE, 1 WALL.  531, 568; O'REILLY V. MORSE, 15
HOW.  62, 112-13.  YET IF WALKER'S BLANKET CLAIMS BE VALID, NO DEVICE
TO CLARIFY ECHO WAVES, NOW KNOWN OR HEREAFTER INVENTED, WHETHER THE
DEVICE BE AN ACTUAL EQUIVALENT OF WALKER'S INGREDIENT OR NOT, COULD BE
USED IN A COMBINATION SUCH AS THIS, DURING THE LIFE OF WALKER'S
PATENT. 

HAD WALKER ACCURATELY DESCRIBED THE MACHINE HE CLAIMS TO HAVE
INVENTED, HE WOULD HAVE HAD NO SUCH BROAD RIGHTS TO BAR THE USE OF ALL
DEVICES NOW OR HEREAFTER KNOWN WHICH COULD ACCENT WAVES.  FOR HAD HE
ACCURATELY DESCRIBED THE RESONATOR TOGETHER WITH THE LEHR AND WYATT
APPARATUS, AND SUED FOR INFRINGEMENT, CHARGING THE USE OF SOMETHING
ELSE USED IN COMBINATION TO ACCENT THE WAVES, THE ALLEGED INFRINGER
COULD HAVE PREVAILED IF THE SUBSTITUTED DEVICE (1) PERFORMED A
SUBSTANTIALLY DIFFERENT FUNCTION; (2) WAS NOT KNOWN AT THE DATE OF
WALKER'S PATENT AS A PROPER SUBSTITUTE FOR THE RESONATOR; OR (3) HAD
BEEN ACTUALLY INVENTED AFTER THE DATE OF THE PATENT.  FULLER V.
YENTZER, SUPRA, AT 296-97; GILL V. WELLS, SUPRA, AT 29.  CERTAINLY, IF
WE ARE TO BE CONSISTENT WITH REV. STAT. 4888, A PATENTEE CANNOT OBTAIN
GREATER COVERAGE BY FAILING TO DESCRIBE HIS INVENTION THAN BY
DESCRIBING IT AS THE STATUTE COMMANDS. 

IT IS URGED THAT OUR CONCLUSION IS IN CONFLICT WITH THE DECISION OF
CONTINENTAL PAPER BAG CO. V. EASTERN PAPER BAG CO., 210 U.S. 405.  IN
THAT CASE, HOWEVER, THE CLAIMS STRUCTURALLY DESCRIBED THE PHYSICAL AND
OPERATING RELATIONSHIP OF ALL THE CRUCIAL PARTS OF THE NOVEL
COMBINATION.  FN8  THE COURT THERE DECIDED ONLY THAT THERE HAD BEEN AN
INFRINGEMENT OF THIS ADEQUATELY DESCRIBED INVENTION.  THAT CASE IS NOT
AUTHORITY FOR SUSTAINING THE CLAIMS BEFORE US WHICH FAIL ADEQUATELY TO
DESCRIBE THE ALLEGED INVENTION.  REVERSED. 

FN1  "33.  APPLICATION FOR PATENT; DESCRIPTION; SPECIFICATION AND
CLAIM.  - BEFORE ANY INVENTOR OR DISCOVERER SHALL RECEIVE A PATENT FOR
HIS INVENTION OR DISCOVERY HE SHALL MAKE APPLICATION THEREFOR, IN
WRITING, TO THE COMMISSIONER OF PATENTS, AND SHALL FILE IN THE PATENT
OFFICE A WRITTEN DESCRIPTION OF THE SAME, AND OF THE MANNER AND PROCESS
OF MAKING, CONSTRUCTING, COMPOUNDING, AND USING IT, IN SUCH FULL,
CLEAR, CONCISE, AND EXACT TERMS AS TO ENABLE ANY PERSON SKILLED IN THE
ART OR SCIENCE TO WHICH IT APPERTAINS, OR WITH WHICH IT IS MOST NEARLY
CONNECTED, TO MAKE, CONSTRUCT, COMPOUND, AND USE THE SAME; AND IN CASE
OF A MACHINE, HE SHALL EXPLAIN THE PRINCIPLE THEREOF, AND THE BEST MODE
IN WHICH HE HAS CONTEMPLATED APPLYING THAT PRINCIPLE, SO AS TO
DISTINGUISH IT FROM OTHER INVENTIONS; AND HE SHALL PARTICULARLY POINT
OUT AND DISTINCTLY CLAIM THE PART, IMPROVEMENT, OR COMBINATION WHICH HE
CLAIMS AS HIS INVENTION OR DISCOVERY...." 

FN2  OTHER ALLEGED ERRORS WERE URGED IN THE APPLICATION FOR
CERTIORARI AND HAVE BEEN ARGUED HERE, BUT SINCE WE FIND THE QUESTION OF
DEFINITENESS OF THE CLAIM DECISIVE OF THE CONTROVERSY, WE SHALL NOT
FURTHER ADVERT TO THE OTHER CONTENTIONS. 

FN3  THIS CASE WAS PREVIOUSLY AFFIRMED BY A DIVIDED COURT, 326 U.S.
696, AND UPON PETITION FOR REHEARING WAS RESTORED TO THE DOCKET FOR
REARGUMENT.  327 U.S. 812. 

FN4  THE KNOWN DISTANCE FROM WELL TOP TO THE TUBING CATCHER IS TO THE
UNKNOWN DISTANCE FROM WELL TOP TO THE FLUID SURFACE AS THE TIME AN ECHO
REQUIRES TO TRAVEL FROM THE TUBING CATCHER IS TO THE TIME REQUIRED FOR
AN ECHO TO TRAVEL FROM THE FLUID SURFACE. 

WALKER'S PATENT EMPHASIZES THAT HIS INVENTION SOLVES THE VELOCITY OF
SOUND WAVES IN WELLS OF VARIOUS PRESSURES IN WHICH SOUND DID NOT TRAVEL
AT OPEN-AIR OR A UNIFORM SPEED.  MATHEMATICALLY, OF COURSE, HIS
DETERMINATION OF THE DISTANCE BY PROPORTIONS DETERMINES THE DISTANCE TO
THE FLUID SURFACE DIRECTLY WITHOUT NECESSARILY CONSIDERING VELOCITY IN
FEET PER SECOND AS A FACTOR. 

FN5  SEE HAILES V. VAN WORMER, 20 WALL.  353; KNAPP V. MORSS, 150
U.S. 221, 227-28; TEXTILE MACHINE WORKS V. LOUIS HIRSCH TEXTILE
MACHINES, INC., 302 U.S. 490; LINCOLN ENGINEERING CO. V. STEWART-WARNER
CORP., 303 U.S. 545, 549-50. 

FN6  HALLIBURTON DOES NOT CHALLENGE THE ADEQUACY OF THE DESCRIPTION
OF ANY OTHER FEATURES OF THE "NEW COMBINATION."  THE ELEMENTS OF
WALKER'S APPARATUS OTHER THAN THE FILTER ARE SO NEARLY IDENTICAL TO
WHAT LEHR AND WYATT PATENTED THAT WE CAN SPEAK OF THESE OTHER ELEMENTS
AS THE "LEHR AND WYATT MACHINE." 

FN7  BOTH PARTIES HAVE USED CLAIM 1 AS A TYPICAL EXAMPLE FOR PURPOSES
OF ARGUMENT THROUGHOUT THE LITIGATION.  OTHER CLAIMS NEED NOT BE SET
OUT.  CLAIM 1 IS AS FOLLOWS: 

"IN AN APPARATUS FOR DETERMINING THE LOCATION OF AN OBSTRUCTION IN A
WELL HAVING THEREIN A STRING OF ASSEMBLED TUBING SECTIONS
INTERCONNECTED WITH EACH OTHER BY COUPLING COLLARS, MEANS COMMUNICATING
WITH SAID WELL FOR CREATING A PRESSURE IMPULSE IN SAID WELL, ECHO
RECEIVING MEANS INCLUDING A PRESSURE RESPONSIVE DEVICE EXPOSED TO SAID
WELL FOR RECEIVING PRESSURE IMPULSES FROM THE WELL AND FOR MEASURING
THE LAPSE OF TIME BETWEEN THE CREATION OF THE IMPULSE AND THE ARRIVAL
AT SAID RECEIVING MEANS OF THE ECHO FROM SAID OBSTRUCTION, AND MEANS
ASSOCIATED WITH SAID PRESSURE RESPONSIVE DEVICE FOR TUNING SAID
RECEIVING MEANS TO THE FREQUENCY OF ECHOES FROM THE TUBING COLLARS OF
SAID TUBING SECTIONS TO CLEARLY DISTINGUISH THE ECHOES FROM SAID
COUPLINGS FROM EACH OTHER." 

FN8  THE TYPICAL CLAIM THERE IN SUIT WAS AS FOLLOWS: 

"2.  IN A PAPER BAG MACHINE, THE COMBINATION OF THE ROTATING CYLINDER
PROVIDED WITH ONE OR MORE PAIRS OF SIDE FOLDING FINGERS ADAPTED TO BE
MOVED TOWARD OR FROM EACH OTHER, A FORMING PLATE ALSO PROVIDED WITH
SIDE FORMING FINGERS ADAPTED TO BE MOVED TOWARD OR FROM EACH OTHER,
MEANS FOR OPERATING SAID FINGERS AT DEFINITE TIMES DURING THE FORMATIVE
ACTION UPON THE BAG TUBE, OPERATING MEANS FOR THE FORMING PLATE ADAPTED
TO CAUSE THE SAID PLATE TO OSCILLATE ABOUT ITS REAR EDGE UPON THE
SURFACE OF THE CYLINDER DURING THE ROTARY MOVEMENT OF SAID CYLINDER FOR
THE PURPOSE OF OPENING AND FORMING THE BOTTOM OF THE BAG TUBE, A FINGER
MOVING WITH THE FORMING PLATE FOR RECEIVING THE UPPER SHEET OF THE TUBE
AND LIFTING IT DURING THE FORMATIVE ACTION, POWER DEVICES FOR RETURNING
THE FORMING PLATE TO ITS ORIGINAL POSITION TO RECEIVE A NEW BAG TUBE,
AND MEANS TO MOVE THE BAG TUBE WITH THE CYLINDER."  CONTINENTAL PAPER
BAG CO. V. EASTERN PAPER BAG CO., 210 U.S. 405, 417, N. 1. 

MR. JUSTICE FRANKFURTER CONCURS WITH THE COURT'S OPINION IN SO FAR AS
IT FINDS THIS CLAIM LACKING IN THE DEFINITENESS REQUIRED BY REV. STAT.
4888, 35 U.S.C. SEC. 33, BUT RESERVES JUDGMENT AS TO CONSIDERATIONS
THAT MAY BE PECULIAR TO COMBINATION PATENTS IN SATISFYING THAT
REQUIREMENT. 

MR. JUSTICE BURTON DISSENTS. 
..END :










CLEVELAND V. UNITED STATES, 329 U.S. 14 


ARGUED OCTOBER 10, 1945.  REARGUED OCTOBER 17, 1946.  - DECIDED NOVEMBER
18, 1946.  - 146 F.2D 730, AFFIRMED. 


1.  IT IS A VIOLATION OF THE MANN ACT, 36 STAT. 825, 18 U.S.C. SEC.
398, FOR A MAN TO TRANSPORT A WOMAN ACROSS STATE LINES FOR THE PURPOSE
OF MAKING HER HIS PLURAL WIFE OR COHABITING WITH HER AS SUCH -
NOTWITHSTANDING THE FACT THAT THE PRACTICE IS FOUNDED ON HIS RELIGIOUS
BELIEF.  PP. 16, 20. 

2.  WHILE THE ACT WAS AIMED PRIMARILY AT THE USE OF INTERSTATE
COMMERCE FOR THE CONDUCT OF COMMERCIALIZED PROSTITUTION, IT IS NOT
LIMITED TO THAT AND A PROFIT MOTIVE IS NOT A SINE QUA NON TO ITS
APPLICATION.  CAMINETTI V. UNITED STATES, 242 U.S. 470.  PP. 17, 18. 

(A)  IT EXPRESSLY APPLIES TO TRANSPORTATION FOR PURPOSES OF
DEBAUCHERY, WHICH MAY BE MOTIVATED SOLELY BY LUST.  P. 17. 

(B)  UNDER THE EJUSDEM GENERIS RULE, THE WORDS "OR FOR ANY OTHER
IMMORAL PURPOSE" CANNOT BE GIVEN A NARROWER MEANING.  P. 18. 

3.  POLYGAMOUS PRACTICES ARE NOT EXCLUDED FROM THE ACT, HAVE LONG
BEEN BRANDED AS IMMORAL, AND ARE OF THE SAME GENUS AS THE OTHER IMMORAL
PRACTICES COVERED BY THE ACT.  PP. 18, 19. 

4.  THE FACT THAT THE REGULATION OF MARRIAGE IS A STATE MATTER DOES
NOT MAKE THE ACT AN UNCONSTITUTIONAL INTERFERENCE BY CONGRESS WITH THE
POLICE POWERS OF THE STATES.  P. 19. 

5.  THE POWER OF CONGRESS OVER THE INSTRUMENTALITIES OF COMMERCE IS
PLENARY; IT MAY BE USED TO DEFEAT IMMORAL PRACTICES; AND THE FACT THAT
THE MEANS USED MAY HAVE "THE QUALITY OF POLICE REGULATIONS" IS NOT
CONSEQUENTIAL.  P. 19. 

6.  TRANSPORTATION OF A WOMAN ACROSS STATE LINES FOR THE PURPOSE OF
ENTERING INTO A PLURAL MARRIAGE OR COHABITING WITH HER AS A PLURAL WIFE
IS FOR A PURPOSE PROHIBITED BY THE ACT.  P. 19. 

7.  GUILT UNDER THE ACT TURNS ON THE PURPOSE WHICH MOTIVATES THE
TRANSPORTATION, NOT ON ITS ACCOMPLISHMENT.  P. 20. 

8.  THE FACT THAT THE ACCUSED WAS MOTIVATED BY A RELIGIOUS BELIEF IS
NO DEFENSE TO A PROSECUTION UNDER THE MANN ACT.  P. 20. 

9.  UNDER THE EJUSDEM GENERIS RULE, THE GENERAL WORDS CANNOT BE
CONFINED MORE NARROWLY THAN THE CLASS OF WHICH THEY ARE A PART.  P.
18.  OF CONVICTION IN THESE CASES. 

CLEVELAND V. UNITED STATES. 

NO. 12.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT* . 

*TOGETHER WITH NO. 13, CLEVELAND V. UNITED STATES; NO. 14, CLEVELAND
V. UNITED STATES; NO. 15, DARGER V. UNITED STATES; NO. 16, JESSOP V.
UNITED STATES; NO. 17, DOCKSTADER V. UNITED STATES; NO. 18, STUBBS V.
UNITED STATES; AND NO. 19, PETTY V. UNITED STATES, ON CERTIORARI TO THE
SAME COURT. 

PETITIONERS WERE CONVICTED OF VIOLATING THE MANN ACT, 36 STAT. 825,
18 U.S.C. SEC. 398.  56 F.SUPP.  890.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  146 F.2D 730.  THIS COURT GRANTED CERTIORARI.  324 U.S.
835.  AFFIRMED, P. 20. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE MEMBERS OF A MORMON SECT, KNOWN AS FUNDAMENTALISTS. 
THEY NOT ONLY BELIEVE IN POLYGAMY; UNLIKE OTHER MORMONS,  FN1  THEY
PRACTICE IT.  EACH OF PETITIONERS, EXCEPT STUBBS, HAS, IN ADDITION TO
HIS LAWFUL WIFE, ONE OR MORE PLURAL WIVES.  EACH TRANSPORTED AT LEAST
ONE PLURAL WIFE ACROSS STATE LINES,  FN2  EITHER FOR THE PURPOSE OF
COHABITING WITH HER, OR FOR THE PURPOSE OF AIDING ANOTHER MEMBER OF THE
CULT IN SUCH A PROJECT.  THEY WERE CONVICTED OF VIOLATING THE MANN ACT
(36 STAT. 825, 18 U.S.C. SEC. 398) ON A TRIAL TO THE COURT, A JURY
HAVING BEEN WAIVED.  56 F.SUPP.  890.  THE JUDGMENTS OF CONVICTION WERE
AFFIRMED ON APPEAL.  146 F.2D 730.  THE CASES ARE HERE ON PETITIONS FOR
CERTIORARI WHICH WE GRANTED IN VIEW OF THE ASSERTED CONFLICT BETWEEN
THE DECISION BELOW AND MORTENSEN V. UNITED STATES, 322 U.S. 369. 

THE ACT MAKES AN OFFENSE THE TRANSPORTATION IN INTERSTATE COMMERCE OF
"ANY WOMAN OR GIRL FOR THE PURPOSE OF PROSTITUTION OR DEBAUCHERY, OR
FOR ANY OTHER IMMORAL PURPOSE."  THE DECISION TURNS ON THE MEANING OF
THE LATTER PHRASE, "FOR ANY OTHER IMMORAL PURPOSE." 

UNITED STATES V. BITTY, 208 U.S. 393, INVOLVED A PROSECUTION UNDER A
FEDERAL STATUTE MAKING IT A CRIME TO IMPORT AN ALIEN WOMAN "FOR THE
PURPOSE OF PROSTITUTION OR FOR ANY OTHER IMMORAL PURPOSE."  THE ACT WAS
CONSTRUED TO COVER A CASE WHERE A MAN IMPORTED AN ALIEN WOMAN SO THAT
SHE SHOULD LIVE WITH HIM AS HIS CONCUBINE.  TWO YEARS LATER THE MANN
ACT WAS PASSED.  BECAUSE OF THE SIMILARITY OF THE LANGUAGE USED IN THE
TWO ACTS, THE BITTY CASE BECAME A FORCEFUL PRECEDENT FOR THE
CONSTRUCTION OF THE MANN ACT.  THUS ONE WHO TRANSPORTED A WOMAN IN
INTERSTATE COMMERCE SO THAT SHE SHOULD BECOME HIS MISTRESS OR CONCUBINE
WAS HELD TO HAVE TRANSPORTED HER FOR AN "IMMORAL PURPOSE" WITHIN THE
MEANING OF THE MANN ACT.  CAMINETTI V. UNITED STATES, 242 U.S. 470. 

IT IS ARGUED THAT THE CAMINETTI DECISION GAVE TOO WIDE A SWEEP TO THE
ACT; THAT THE ACT WAS DESIGNED TO COVER ONLY THE WHITE SLAVE BUSINESS
AND RELATED VICES; THAT IT WAS NOT DESIGNED TO COVER VOLUNTARY ACTIONS
BEREFT OF SEX COMMERCIALISM; AND THAT IN ANY EVENT IT SHOULD NOT BE
CONSTRUED TO EMBRACE POLYGAMY WHICH IS A FORM OF MARRIAGE AND, UNLIKE
PROSTITUTION OR DEBAUCHERY OR THE CONCUBINAGE INVOLVED IN THE CAMINETTI
CASE, HAS AS ITS OBJECT PARENTHOOD AND THE CREATION AND MAINTENANCE OF
FAMILY LIFE.  IN SUPPORT OF THAT INTERPRETATION AN EXHAUSTIVE
LEGISLATIVE HISTORY IS SUBMITTED WHICH, IT IS SAID, GIVES NO INDICATION
THAT THE ACT WAS AIMED AT POLYGAMOUS PRACTICES. 

WHILE MORTENSEN V. UNITED STATES, SUPRA, P. 377, RIGHTLY INDICATED
THAT THE ACT WAS AIMED "PRIMARILY" AT THE USE OF INTERSTATE COMMERCE
FOR THE CONDUCT OF THE WHITE SLAVE BUSINESS, WE FIND NO INDICATION THAT
A PROFIT MOTIVE IS A SINE QUA NON TO ITS APPLICATION.  PROSTITUTION, TO
BE SURE, NORMALLY SUGGESTS SEXUAL RELATIONS FOR HIRE.  FN3  BUT
DEBAUCHERY HAS NO SUCH IMPLIED LIMITATION.  IN COMMON UNDERSTANDING THE
INDULGENCE WHICH THAT TERM SUGGESTS MAY BE MOTIVATED SOLELY BY LUST. 
FN4  AND SO WE START WITH WORDS WHICH BY THEIR NATURAL IMPORT EMBRACE
MORE THAN COMMERCIALIZED SEX.  WHAT FOLLOWS IS "ANY OTHER IMMORAL
PURPOSE."  UNDER THE EJUSDEM GENERIS RULE OF CONSTRUCTION THE GENERAL
WORDS ARE CONFINED TO THE CLASS AND MAY NOT BE USED TO ENLARGE IT. BUT
WE COULD NOT GIVE THE WORDS A FAITHFUL INTERPRETATION IF WE CONFINED
THEM MORE NARROWLY THAN THE CLASS OF WHICH THEY ARE A PART. 

THAT WAS THE VIEW TAKEN BY THE COURT IN THE BITTY AND CAMINETTI
CASES.  WE DO NOT STOP TO REEXAMINE THE CAMINETTI CASE TO DETERMINE
WHETHER THE ACT WAS PROPERLY APPLIED TO THE FACTS THERE PRESENTED.  BUT
WE ADHERE TO ITS HOLDING, WHICH HAS BEEN IN FORCE FOR ALMOST THIRTY
YEARS,  FN5 THAT THE ACT, WHILE PRIMARILY AIMED AT THE USE OF
INTERSTATE COMMERCE FOR THE PURPOSES OF COMMERCIALIZED SEX, IS NOT
RESTRICTED TO THAT END. 

WE CONCLUDE, MOREOVER, THAT POLYGAMOUS PRACTICES ARE NOT EXCLUDED
FROM THE ACT.  THEY HAVE LONG BEEN OUTLAWED IN OUR SOCIETY.  AS STATED
IN REYNOLDS V. UNITED STATES, 98 U.S. 145, 164: 

"POLYGAMY HAS ALWAYS BEEN ODIOUS AMONG THE NORTHERN AND WESTERN
NATIONS OF EUROPE, AND, UNTIL THE ESTABLISHMENT OF THE MORMON CHURCH,
WAS ALMOST EXCLUSIVELY A FEATURE OF THE LIFE OF ASIATIC AND OF AFRICAN
PEOPLE.  AT COMMON LAW, THE SECOND MARRIAGE WAS ALWAYS VOID (2 KENT,
COM. 79), AND FROM THE EARLIEST HISTORY OF ENGLAND POLYGAMY HAS BEEN
TREATED AS AN OFFENCE AGAINST SOCIETY." 

AS SUBSEQUENTLY STATED IN MORMON CHURCH V. UNITED STATES, 136 U.S. 1,
49, "THE ORGANIZATION OF A COMMUNITY FOR THE SPREAD AND PRACTICE OF
POLYGAMY IS, IN A MEASURE, A RETURN TO BARBARISM.  IT IS CONTRARY TO
THE SPIRIT OF CHRISTIANITY AND OF THE CIVILIZATION WHICH CHRISTIANITY
HAS PRODUCED IN THE WESTERN WORLD."  AND SEE DAVIS V. BEASON, 133 U.S.
333.  POLYGAMY IS A PRACTICE WITH FAR MORE PERVASIVE INFLUENCES IN
SOCIETY THAN THE CASUAL, ISOLATED TRANSGRESSIONS INVOLVED IN THE
CAMINETTI CASE.  THE ESTABLISHMENT OR MAINTENANCE OF POLYGAMOUS
HOUSEHOLDS IS A NOTORIOUS EXAMPLE OF PROMISCUITY.  THE PERMANENT
ADVERTISEMENT OF THEIR EXISTENCE IS AN EXAMPLE OF THE SHARP
REPERCUSSIONS WHICH THEY HAVE IN THE COMMUNITY.  WE COULD CONCLUDE THAT
CONGRESS EXCLUDED THESE PRACTICES FROM THE ACT ONLY IF IT WERE CLEAR
THAT THE ACT IS CONFINED TO COMMERCIALIZED SEXUAL VICE.  SINCE WE
CANNOT SAY IT IS, WE SEE NO WAY BY WHICH THE PRESENT TRANSGRESSIONS CAN
BE EXCLUDED.  THESE POLYGAMOUS PRACTICES HAVE LONG BEEN BRANDED AS
IMMORAL IN THE LAW.  THOUGH THEY HAVE DIFFERENT RAMIFICATIONS, THEY ARE
IN THE SAME GENUS AS THE OTHER IMMORAL PRACTICES COVERED BY THE ACT. 

THE FACT THAT THE REGULATION OF MARRIAGE IS A STATE MATTER DOES NOT,
OF COURSE, MAKE THE MANN ACT AN UNCONSTITUTIONAL INTERFERENCE BY
CONGRESS WITH THE POLICE POWERS OF THE STATES.  THE POWER OF CONGRESS
OVER THE INSTRUMENTALITIES OF INTERSTATE COMMERCE IS PLENARY; IT MAY BE
USED TO DEFEAT WHAT ARE DEEMED TO BE IMMORAL PRACTICES; AND THE FACT
THAT THE MEANS USED MAY HAVE "THE QUALITY OF POLICE REGULATIONS" IS NOT
CONSEQUENTIAL.  HOKE V. UNITED STATES, 227 U.S. 308, 323; SEE ATHANASAW
V. UNITED STATES, 227 U.S. 326; WILSON V. UNITED STATES, 232 U.S. 563. 

PETITIONERS' SECOND LINE OF DEFENSE IS THAT THE REQUISITE PURPOSE WAS
LACKING.  IT IS SAID THAT THOSE PETITIONERS WHO ALREADY HAD PLURAL
WIVES DID NOT TRANSPORT THEM IN INTERSTATE COMMERCE FOR AN IMMORAL
PURPOSE.  THE TEST LAID DOWN IN THE MORTENSEN CASE WAS WHETHER THE
TRANSPORTATION WAS IN FACT "THE USE OF INTERSTATE COMMERCE AS A
CALCULATED MEANS FOR EFFECTUATING SEXUAL IMMORALITY."  322 U.S. P.
375.  THERE WAS EVIDENCE THAT THIS GROUP OF PETITIONERS IN ORDER TO
COHABIT WITH THEIR PLURAL WIVES FOUND IT NECESSARY OR CONVENIENT TO
TRANSPORT THEM IN INTERSTATE COMMERCE AND THAT THE UNLAWFUL PURPOSE WAS
THE DOMINANT MOTIVE.  IN ONE CASE THE WOMAN WAS TRANSPORTED FOR THE
PURPOSE OF ENTERING INTO A PLURAL MARRIAGE.  AFTER A NIGHT WITH THIS
PETITIONER SHE REFUSED TO CONTINUE THE PLURAL MARRIAGE RELATIONSHIP. 
BUT GUILT UNDER THE MANN ACT TURNS ON THE PURPOSE WHICH MOTIVATES THE
TRANSPORTATION, NOT ON ITS ACCOMPLISHMENT.  WILSON V. UNITED STATES,
SUPRA, PP. 570-71. 

IT IS ALSO URGED THAT THE REQUISITE CRIMINAL INTENT WAS LACKING SINCE
PETITIONERS WERE MOTIVATED BY A RELIGIOUS BELIEF.  THAT DEFENSE CLAIMS
TOO MUCH.  IF UPHELD, IT WOULD PLACE BEYOND THE LAW ANY ACT DONE UNDER
CLAIM OF RELIGIOUS SANCTION.  BUT IT HAS LONG BEEN HELD THAT THE FACT
THAT POLYGAMY IS SUPPORTED BY A RELIGIOUS CREED AFFORDS NO DEFENSE IN A
PROSECUTION FOR BIGAMY.  REYNOLDS V. UNITED STATES, SUPRA.  WHETHER AN
ACT IS IMMORAL WITHIN THE MEANING OF THE STATUTE IS NOT TO BE
DETERMINED BY THE ACCUSED'S CONCEPTS OF MORALITY.  CONGRESS HAS
PROVIDED THE STANDARD.  THE OFFENSE IS COMPLETE IF THE ACCUSED INTENDED
TO PERFORM, AND DID IN FACT PERFORM, THE ACT WHICH THE STATUTE
CONDEMNS, VIZ., THE TRANSPORTATION OF A WOMAN FOR THE PURPOSE OF MAKING
HER HIS PLURAL WIFE OR COHABITING WITH HER AS SUCH. 

WE HAVE CONSIDERED THE REMAINING OBJECTIONS RAISED AND FIND THEM
WITHOUT MERIT.  AFFIRMED. 

FN1  THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS HAS FORBIDDEN
PLURAL MARRIAGES SINCE 1890.  SEE TONCRAY V. BUDGE, 14 IDA.  621, 654
55, 95 P. 26. 

FN2  PETITIONERS' ACTIVITIES EXTENDED INTO ARIZONA, CALIFORNIA,
COLORADO, IDAHO, UTAH AND WYOMING. 

FN3  "OF WOMEN:  THE OFFERING OF THE BODY TO INDISCRIMINATE LEWDNESS
FOR HIRE (ESP.  AS A PRACTICE OR INSTITUTION); WHOREDOM, HARLOTRY."  8
OXFORD ENGLISH DICTIONARY 1497. 

FN4  "VICIOUS INDULGENCE IN SENSUAL PLEASURES."  3 OXFORD ENGLISH
DICTIONARY 79; "EXCESSIVE INDULGENCE IN SENSUAL PLEASURES OF ANY KIND;
GLUTTONY; INTEMPERANCE; SEXUAL IMMORALITY; UNLAWFUL INDULGENCE OF
LUST."  3 CENTURY DICT.  REV.  ED. 1477. 

FN5  BLACKSTOCK V. UNITED STATES, 261 F. 150; CAREY V. UNITED STATES,
265 F. 515; ELROD V. UNITED STATES, 266 F. 55; BURGESS V. UNITED
STATES, 54 APP. D.C. 71, 294 F. 1002; CORBETT V. UNITED STATES, 299 F.
27; HART V. UNITED STATES, 11 F.2D 499; GHADIALI V. UNITED STATES, 17
F.2D 236; UNITED STATES V. REGINELLI, 133 F.2D 595; POINDEXTER V.
UNITED STATES, 139 F.2D 158; SIMON V. UNITED STATES, 145 F.2D 345;
QUALLS V. UNITED STATES, 149 F.2D 891; SIPE V. UNITED STATES, 80 U.S.
APP. D.C. 194, 150 F.2D 984; UNITED STATES V. CHAPLIN, 54 F.SUPP. 
682. 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON THINK THAT THE CASES SHOULD
BE REVERSED.  THEY ARE OF OPINION THAT AFFIRMANCE REQUIRES EXTENSION OF
THE RULE ANNOUNCED IN THE CAMINETTI CASE AND THAT THE CORRECTNESS OF
THAT RULE IS SO DUBIOUS THAT IT SHOULD AT LEAST BE RESTRICTED TO ITS
PARTICULAR FACTS. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I CONCUR IN THE RESULT.  DIFFERENCES HAVE BEEN URGED IN PETITIONERS'
BEHALF BETWEEN THESE CASES AND CAMINETTI V. UNITED STATES, 242 U.S.
470.  FN1  NOTWITHSTANDING THEM, IN MY OPINION IT WOULD BE IMPOSSIBLE
RATIONALLY TO REVERSE THE CONVICTIONS, AT THE SAME TIME ADHERING TO
CAMINETTI AND LATER DECISIONS PERPETUATING ITS RULING.  FN2 

IT IS ALSO SUGGESTED, THOUGH NOT STRONGLY URGED, THAT CAMINETTI WAS
WRONGLY DECIDED AND SHOULD BE OVERRULED.  MUCH MAY BE SAID FOR THIS
VIEW.  IN MY OPINION THAT CASE AND SUBSEQUENT ONES FOLLOWING IT
EXTENDED THE MANN ACT'S COVERAGE BEYOND THE CONGRESSIONAL INTENT AND
PURPOSE, AS THE DISSENTING OPINION OF MR. JUSTICE MCKENNA CONVINCINGLY
DEMONSTRATED.  242 U.S. AT 496.  FN3 MOREOVER, AS I ALSO THINK, THIS
LEGISLATION AND THE PROBLEMS PRESENTED BY THE CASES ARISING UNDER IT
ARE OF SUCH A CHARACTER AS DOES NOT ALLOW THIS COURT PROPERLY TO SHIFT
TO CONGRESS THE RESPONSIBILITY FOR PERPETUATING THE COURT'S ERROR. 

NOTWITHSTANDING RECENT TENDENCY, THE IDEA CANNOT ALWAYS BE ACCEPTED
THAT CONGRESS, BY REMAINING SILENT AND TAKING NO AFFIRMATIVE ACTION IN
REPUDIATION, GIVES APPROVAL TO JUDICIAL MISCONSTRUCTION OF ITS
ENACTMENTS.  SEE GIROUARD V. UNITED STATES, 328 U.S. 61, 69.  IT IS
PERHAPS TOO LATE NOW TO DENY THAT, LEGISLATIVELY SPEAKING AS IN
ORDINARY LIFE, SILENCE IN SOME INSTANCES MAY GIVE CONSENT.  FN4  BUT IT
WOULD BE GOING EVEN FARTHER BEYOND REASON AND COMMON EXPERIENCE TO
MAINTAIN, AS THERE ARE SIGNS WE MAY BE BY WAY OF DOING, THAT IN
LEGISLATION ANY MORE THAN IN OTHER AFFAIRS SILENCE OR NONACTION ALWAYS
IS ACQUIESCENCE EQUIVALENT TO ACTION. 

THERE ARE VAST DIFFERENCES BETWEEN LEGISLATING BY DOING NOTHING AND
LEGISLATING BY POSITIVE ENACTMENT, BOTH IN THE PROCESSES BY WHICH THE
WILL OF CONGRESS IS DERIVED AND STATED  FN5  AND IN THE CLARITY AND
CERTAINTY OF THE EXPRESSION OF ITS WILL.  FN6  AND THERE ARE MANY
REASONS, OTHER THAN TO INDICATE APPROVAL OF WHAT THE COURTS HAVE DONE,
WHY CONGRESS MAY FAIL TO TAKE AFFIRMATIVE ACTION TO REPUDIATE THEIR
MISCONSTRUCTION OF ITS DULY ADOPTED LAWS.  AMONG THEM MAY BE THE SHEER
PRESSURE OF OTHER AND MORE IMPORTANT BUSINESS.  SEE MOORE V. CLEVELAND
RY. CO., 108 F.2D 656, 660.  AT TIMES POLITICAL CONSIDERATIONS MAY WORK
TO FORBID TAKING CORRECTIVE ACTION.  AND IN SUCH CASES, AS WELL AS
OTHERS, THERE MAY BE A STRONG AND PROPER TENDENCY TO TRUST TO THE
COURTS TO CORRECT THEIR OWN ERRORS, SEE GIROUARD V. UNITED STATES,
SUPRA, AT 69, AS THEY OUGHT TO DO WHEN EXPERIENCE HAS CONFIRMED OR
DEMONSTRATED THE ERRORS' EXISTENCE. 

THE DANGER OF IMPUTING TO CONGRESS, AS A RESULT OF ITS FAILURE TO
TAKE POSITIVE OR AFFIRMATIVE ACTION THROUGH NORMAL LEGISLATIVE
PROCESSES, IDEAS ENTERTAINED BY THE COURT CONCERNING CONGRESS' WILL, IS
ILLUSTRATED MOST DRAMATICALLY PERHAPS BY THE VACILLATING AND
CONTRADICTORY COURSES PURSUED IN THE LONG LINE OF DECISIONS IMPUTING TO
"THE SILENCE OF CONGRESS" VARIED EFFECTS IN COMMERCE CLAUSE CASES.  FN7
THAT DANGER MAY BE AND OFTEN IS EQUALLY PRESENT IN OTHERS.  MORE OFTEN
THAN NOT, THE ONLY SAFE ASSUMPTION TO MAKE FROM CONGRESS' INACTION IS
SIMPLY THAT CONGRESS DOES NOT INTEND TO ACT AT ALL.  CF. UNITED STATES
V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 550.  AT BEST THE CONTRARY
VIEW CAN BE ONLY AN INFERENCE, ALTOGETHER LACKING IN THE NORMAL
EVIDENCES OF LEGISLATIVE INTENT AND OFTEN SUBJECT TO VARYING VIEWS OF
THAT INTENT.  FN8  IN SHORT, ALTHOUGH RECOGNIZING THAT BY SILENCE
CONGRESS AT TIMES MAY BE TAKEN TO ACQUIESCE AND THUS APPROVE, WE SHOULD
BE VERY SURE THAT, UNDER ALL THE CIRCUMSTANCES OF A GIVEN SITUATION, IT
HAS DONE SO BEFORE WE SO RULE AND THUS AT ONCE RELIEVE OURSELVES FROM
AND SHIFT TO IT THE BURDEN OF CORRECTING WHAT WE HAVE DONE WRONGLY. 
THE MATTER IS PARTICULAR, NOT GENERAL, NOTWITHSTANDING EARLIER
EXCEPTIONAL TREATMENT AND MORE RECENT TENDENCY.  JUST AS DUBIOUS
LEGISLATIVE HISTORY IS AT TIMES MUCH OVERRIDDEN, SO ALSO IS SILENCE OR
INACTION OFTEN MISTAKEN FOR LEGISLATION. 

I DOUBT VERY MUCH THAT THE SILENCE OF CONGRESS IN RESPECT TO THESE
CASES, NOTWITHSTANDING THEIR MULTIPLICATION AND THE LENGTH OF TIME
DURING WHICH THE SILENCE HAS ENDURED, CAN BE TAKEN TO BE THE EQUIVALENT
OF BILLS APPROVING THEM INTRODUCED IN BOTH HOUSES, REFERRED TO AND
CONSIDERED BY COMMITTEES, DISCUSSED IN DEBATES, ENACTED BY MAJORITIES
IN BOTH PLACES, AND APPROVED BY THE EXECUTIVE.  I DOUBT, IN OTHER
WORDS, THAT, IN VIEW OF ALL THE RELEVANT CIRCUMSTANCES INCLUDING THE
UNANTICIPATED CONSEQUENCES OF THE LEGISLATION,  FN9  SUCH MAJORITIES
COULD HAVE BEEN MUSTERED IN APPROVAL OF THE CAMINETTI DECISION AT ANY
TIME SINCE IT WAS RENDERED.  NOR IS THE CONTRARY CONCLUSION
DEMONSTRATED BY CONGRESS' REFUSAL TO TAKE CORRECTIVE ACTION.  FN10 

THE CAMINETTI CASE, HOWEVER, HAS NOT BEEN OVERRULED AND HAS THE FORCE
OF LAW UNTIL A MAJORITY OF THIS COURT MAY CONCUR IN THE VIEW THAT THIS
SHOULD BE DONE AND TAKE ACTION TO THAT EFFECT.  THIS NOT HAVING BEEN
DONE, I ACQUIESCE IN THE COURT'S DECISION. 

FN1  COUNSEL HAS EMPHASIZED THE RELIGIOUS ASPECT PRESENTED BY THESE
CASES AND HAS STRESSED THE FAMILIAL ASPECT AND PURPOSE OF SO-CALLED
"CELESTIAL MARRIAGE" IN THE MORMON CONCEPTION AS DISTINGUISHING THE
RELATION IN FACT AND IN CONSEQUENCE FROM SUCH AS WERE INVOLVED IN THE
CAMINETTI AND OTHER MANN ACT CASES.  THE ARGUMENT FROM RELIGIOUS
MOTIVATION HAS BEEN FORECLOSED, SO FAR AS LEGISLATIVE POWER IS
CONCERNED, SINCE REYNOLDS V. UNITED STATES, 98 U.S. 145.  APROPOS OF
THE MANN ACT'S APPLICATION, THE RELATIONSHIP IS NOT ONLY ILLEGAL UNDER
STATE LAW BUT ALSO AS REGULAR AND CONTINUOUS AS THAT INVOLVED IN
CAMINETTI, OR MORE SO. 

FN2  SEE E.G., GEBARDI V. UNITED STATES, 287 U.S. 112; UNITED STATES
V. REGINELLI, 133 F.2D 595; CHRISTIAN V. UNITED STATES, 28 F.2D 114. 
COMPARE UNITED STATES V. BEACH, 324 U.S. 193; MORTENSEN V. UNITED
STATES, 322 U.S. 369. 

FN3  SEE ALSO THE DISSENTING OPINION OF MR. JUSTICE MURPHY HEREIN. 
THE DISSENTING OPINION IN THE CAMINETTI CASE WAS JOINED BY THE CHIEF
JUSTICE AND MR. JUSTICE CLARKE.  ONLY FIVE JUSTICES ADHERED TO THE
MAJORITY OPINION, MR. JUSTICE MCREYNOLDS NOT PARTICIPATING.  CF. THE
OPINION OF MR. JUSTICE MCKENNA IN ATHANASAW V. UNITED STATES, 227 U.S.
326. 

FN4  AS AN ORIGINAL MATTER, IN VIEW OF THE SPECIFIC AND
CONSTITUTIONAL PROCEDURES REQUIRED FOR THE ENACTMENT OF LEGISLATION, IT
WOULD SEEM HARDLY JUSTIFIABLE TO TREAT AS HAVING LEGISLATIVE EFFECT ANY
ACTION OR NONACTION NOT TAKEN IN ACCORDANCE WITH THE PRESCRIBED
PROCEDURES. 

FN5  SEE NOTE 4.  LEGISLATIVE INTENT DERIVED FROM NONACTION OR
"SILENCE" LACKS ALL THE SUPPORTING EVIDENCES OF LEGISLATION ENACTED
PURSUANT TO PRESCRIBED PROCEDURES, INCLUDING REDUCTION OF BILLS TO
WRITING, COMMITTEE REPORTS, DEBATES, AND REDUCTION TO FINAL WRITTEN
FORM, AS WELL AS VOTING RECORDS AND EXECUTIVE APPROVAL.  NECESSARILY
ALSO THE INTENT MUST BE DERIVED BY A FORM OF NEGATIVE INFERENCE, A
PROCESS LENDING ITSELF TO MUCH GUESSWORK. 

FN6  SEE NOTE 5. 

FN7  SEE PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408, 424-425;
RIBBLE, STATE AND NATIONAL POWER OVER COMMERCE (1937) C. X; BIKLE, THE
SILENCE OF CONGRESS (1927) 41 HARV. L. REV. 200; POWELL, THE VALIDITY
OF STATE LEGISLATION UNDER THE WEBB-KENYON LAW (1917) 2 SO. L.Q. 112. 
AN EXAMPLE OF JUDICIAL INTERPRETATION OF THE SILENCE OF CONGRESS AS
GIVING CONSENT TO STATE LEGISLATION IS WILSON V. MCNAMEE, 102 U.S. 572,
575. 

FN8  CF. NOTE 5. 

FN9  SEE OPINION OF MR. JUSTICE MCKENNA, 242 U.S. AT 502, DISSENTING
IN CAMINETTI V. UNITED STATES; SEE ALSO THE DISSENTING OPINION IN
UNITED STATES V. BEACH, 324 U.S. 193, 199-200. 

FN10  SINCE THE CAMINETTI DECISION TWO BILLS HAVE BEEN INTRODUCED TO
LIMIT THE EFFECT OF THAT CASE.  S. 2438, 73D CONG., 2D SESS.; S. 101,
75TH CONG., 1ST SESS.  NEITHER WAS REPORTED OUT OF COMMITTEE.  IN SUCH
CIRCUMSTANCES THE FAILURE OF CONGRESS TO AMEND THE ACT RAISES NO
PRESUMPTION AS TO ITS INTENT.  ORDER OF RAILWAY CONDUCTORS V. SWAN, 152
F.2D 325, 329. 

MR. JUSTICE MURPHY, DISSENTING. 

TODAY ANOTHER UNFORTUNATE CHAPTER IS ADDED TO THE TROUBLED HISTORY OF
THE WHITE SLAVE TRAFFIC ACT.  IT IS A CHAPTER WRITTEN IN TERMS THAT
MISAPPLY THE STATUTORY LANGUAGE AND THAT DISREGARD THE INTENTION OF THE
LEGISLATIVE FRAMERS.  IT RESULTS IN THE IMPRISONMENT OF INDIVIDUALS
WHOSE ACTIONS HAVE NONE OF THE EARMARKS OF WHITE SLAVERY, WHATEVER ELSE
MAY BE SAID OF THEIR CONDUCT.  I AM ACCORDINGLY FORCED TO DISSENT. 

THE STATUTE IN SO MANY WORDS REFERS TO TRANSPORTATION OF WOMEN AND
GIRLS ACROSS STATE LINES "FOR THE PURPOSE OF PROSTITUTION OR
DEBAUCHERY, OR FOR ANY OTHER IMMORAL PURPOSE."  THE ISSUE HERE IS
WHETHER THE ACT OF TAKING POLYGAMOUS OR PLURAL WIVES ACROSS STATE
LINES, OR TAKING GIRLS ACROSS STATE BORDERS FOR THE PURPOSE OF ENTERING
INTO PLURAL MARRIAGE, CONSTITUTES TRANSPORTATION "FOR ANY OTHER IMMORAL
PURPOSE" SO AS TO COME WITHIN THE INTERDICT OF THE STATUTE. 

THE COURT HOLDS, AND I AGREE, THAT UNDER THE EJUSDEM GENERIS RULE OF
STATUTORY CONSTRUCTION THE PHRASE "ANY OTHER IMMORAL PURPOSE" MUST BE
CONFINED TO THE SAME CLASS OF UNLAWFUL SEXUAL IMMORALITIES AS THAT TO
WHICH PROSTITUTION AND DEBAUCHERY BELONG.  BUT I DISAGREE WITH THE
CONCLUSION THAT POLYGAMY IS "IN THE SAME GENUS" AS PROSTITUTION AND
DEBAUCHERY AND HENCE WITHIN THE PHRASE "ANY OTHER IMMORAL PURPOSE"
SIMPLY BECAUSE IT HAS SEXUAL CONNOTATIONS AND HAS "LONG BEEN BRANDED AS
IMMORAL IN THE LAW" OF THIS NATION.  SUCH REASONING IGNORES REALITY AND
RESULTS IN AN UNFAIR APPLICATION OF THE STATUTORY WORDS. 

IT IS NOT MY PURPOSE TO DEFEND THE PRACTICE OF POLYGAMY OR TO CLAIM
THAT IT IS MORALLY THE EQUIVALENT OF MONOGAMY.  BUT IT IS ESSENTIAL TO
UNDERSTAND WHAT IT IS, AS WELL AS WHAT IT IS NOT.  ONLY IN THAT WAY CAN
WE INTELLIGENTLY DECIDE WHETHER IT FALLS WITHIN THE SAME GENUS AS
PROSTITUTION OR DEBAUCHERY. 

THERE ARE FOUR FUNDAMENTAL FORMS OF MARRIAGE:  (1) MONOGAMY; (2)
POLYGYNY, OR ONE MAN WITH SEVERAL WIVES; (3) POLYANDRY, OR ONE WOMAN
WITH SEVERAL HUSBANDS; AND (4) GROUP MARRIAGE.  THE TERM "POLYGAMY"
COVERS BOTH POLYGYNY AND POLYANDRY.  THUS WE ARE DEALING HERE WITH
POLYGYNY, ONE OF THE BASIC FORMS OF MARRIAGE.  HISTORICALLY, ITS USE
HAS FAR EXCEEDED THAT OF ANY OTHER FORM.  IT WAS QUITE COMMON AMONG
ANCIENT CIVILIZATIONS AND WAS REFERRED TO MANY TIMES BY THE WRITERS OF
THE OLD TESTAMENT; EVEN TODAY IT IS TO BE FOUND FREQUENTLY AMONG
CERTAIN PAGAN AND NON-CHRISTIAN PEOPLES OF THE WORLD.  WE MUST
RECOGNIZE, THEN, THAT POLYGYNY, LIKE OTHER FORMS OF MARRIAGE, IS
BASICALLY A CULTURAL INSTITUTION ROOTED DEEPLY IN THE RELIGIOUS BELIEFS
AND SOCIAL MORES OF THOSE SOCIETIES IN WHICH IT APPEARS.  IT IS EQUALLY
TRUE THAT THE BELIEFS AND MORES OF THE DOMINANT CULTURE OF THE
CONTEMPORARY WORLD CONDEMN THE PRACTICE AS IMMORAL AND SUBSTITUTE
MONOGAMY IN ITS PLACE.  TO THOSE BELIEFS AND MORES I SUBSCRIBE, BUT
THAT DOES NOT ALTER THE FACT THAT POLYGYNY IS A FORM OF MARRIAGE BUILT
UPON A SET OF SOCIAL AND MORAL PRINCIPLES.  IT MUST BE RECOGNIZED AND
TREATED AS SUCH. 

THE COURT STATES THAT POLYGAMY IS "A NOTORIOUS EXAMPLE OF
PROMISCUITY."  THE IMPORTANT FACT, HOWEVER, IS THAT, DESPITE THE
DIFFERENCES THAT MAY EXIST BETWEEN POLYGAMY AND MONOGAMY, SUCH
DIFFERENCES DO NOT PLACE POLYGAMY IN THE SAME CATEGORY AS PROSTITUTION
OR DEBAUCHERY.  WHEN WE USE THOSE TERMS WE ARE SPEAKING OF ACTS OF AN
ENTIRELY DIFFERENT NATURE, HAVING NO RELATION WHATEVER TO THE VARIOUS
FORMS OF MARRIAGE.  IT TAKES NO ELABORATION HERE TO POINT OUT THAT
MARRIAGE, EVEN WHEN IT OCCURS IN A FORM OF WHICH WE DISAPPROVE, IS NOT
TO BE COMPARED WITH PROSTITUTION OR DEBAUCHERY OR OTHER IMMORALITIES OF
THAT CHARACTER. 

THE COURT'S FAILURE TO RECOGNIZE THIS VITAL DISTINCTION AND ITS
INSISTENCE THAT POLYGYNY IS "IN THE SAME GENUS" AS PROSTITUTION AND
DEBAUCHERY DO VIOLENCE TO THE ANTHROPOLOGICAL FACTORS INVOLVED.  EVEN
ETYMOLOGICALLY, THE WORDS "POLYGYNY" AND "POLYGAMY" ARE QUITE DISTINCT
FROM "PROSTITUTION," "DEBAUCHERY" AND WORDS OF THAT ILK.  THERE IS THUS
NO BASIS IN FACT FOR INCLUDING POLYGYNY WITHIN THE PHRASE "ANY OTHER
IMMORAL PURPOSE" AS USED IN THIS STATUTE. 

ONE WORD SHOULD BE SAID ABOUT THE COURT'S CITATION OF UNITED STATES
V. BITTY, 208 U.S. 393, AND THE STATEMENT THAT THE INTERPRETATION OF
THE STATUTE THERE INVOLVED IS A FORCEFUL PRECEDENT FOR THE CONSTRUCTION
OF THE WHITE SLAVE TRAFFIC ACT.  THE THOUGHT APPARENTLY IS THAT THE
PHRASE "ANY OTHER IMMORAL PURPOSE," APPEARING IN THE WHITE SLAVE
TRAFFIC ACT, WAS DERIVED FROM THE IDENTICAL PHRASE USED IN THE STATUTE
REGULATING THE IMMIGRATION OF ALIENS INTO THE UNITED STATES, THE
STATUTE WHICH WAS UNDER CONSIDERATION IN THE BITTY CASE.  34 STAT.
898.  THAT CASE CONCERNED ITSELF WITH THE PORTION OF THE IMMIGRATION
STATUTE FORBIDDING "THE IMPORTATION INTO THE UNITED STATES OF ANY ALIEN
WOMAN OR GIRL FOR THE PURPOSE OF PROSTITUTION, OR FOR ANY OTHER IMMORAL
PURPOSE."  SIGNIFICANTLY, HOWEVER, THE STATUTE MADE SEPARATE PROVISION
FOR THE EXCLUSION OF "POLYGAMISTS, OR PERSONS WHO ADMIT THEIR BELIEF IN
THE PRACTICE OF POLYGAMY."  THUS THE PHRASE "ANY OTHER IMMORAL
PURPOSE," FOLLOWING THE REFERENCE TO PROSTITUTION, CERTAINLY DID NOT
COMPREHEND POLYGAMY.  AND IF THAT STATUTE, OR THE INTERPRETATION GIVEN
IT IN THE BITTY CASE, IS TO BE ANY AUTHORITY HERE, THE CONCLUSION TO BE
DRAWN IS INCONSISTENT WITH THE RESULT REACHED BY THE COURT TODAY.  AS A
MATTER OF FACT, CONGRESS HAS ALWAYS REFERRED TO POLYGAMY BY NAME WHEN
IT DESIRED TO DEAL WITH THAT SUBJECT, AS DISTINGUISHED FROM
IMMORALITIES IN THE NATURE OF PROSTITUTION.  SEE, FOR EXAMPLE, 8 U.S.C.
SEC. 136(F); 18 U.S.C. SEC. 513. 

THE RESULT HERE REACHED IS BUT ANOTHER CONSEQUENCE OF THIS COURT'S
LONG-CONTINUED FAILURE TO RECOGNIZE THAT THE WHITE SLAVE TRAFFIC ACT,
AS ITS TITLE INDICATES, IS AIMED SOLELY AT THE DIABOLICAL INTERSTATE
AND INTERNATIONAL TRADE IN WHITE SLAVES, "THE BUSINESS OF SECURING
WHITE WOMEN AND GIRLS AND OF SELLING THEM OUTRIGHT, OR OF EXPLOITING
THEM FOR IMMORAL PURPOSES."  H. REP. NO. 47, 61ST CONG., 2D SESS., P.
11; S. REP. NO. 886, 61ST CONG., 2D SESS., P. 11.  THE ACT WAS
SUGGESTED AND PROPOSED TO MEET CONDITIONS WHICH HAD ARISEN IN THE YEARS
PRECEDING 1910 AND WHICH HAD REVEALED THEMSELVES IN THEIR UGLY DETAILS
THROUGH EXTENSIVE INVESTIGATIONS.  THE FRAMERS OF THE ACT SPECIFICALLY
STATED THAT IT IS NOT DIRECTED AT IMMORALITY IN GENERAL; IT DOES NOT
EVEN ATTEMPT TO REGULATE THE PRACTICE OF VOLUNTARY PROSTITUTION,
LEAVING THAT PROBLEM TO THE VARIOUS STATES.  ITS EXCLUSIVE CONCERN IS
WITH THOSE GIRLS AND WOMEN WHO ARE "UNWILLINGLY FORCED TO PRACTICE
PROSTITUTION" AND TO ENGAGE IN OTHER SIMILAR IMMORALITIES AND "WHOSE
LIVES ARE LIVES OF INVOLUNTARY SERVITUDE."  IBID.  A READING OF THE
LEGISLATIVE REPORTS AND DEBATES MAKES THIS NARROW PURPOSE SO CLEAR AS
TO REMOVE ALL DOUBTS ON THE MATTER.  AND IT IS A PURPOSE THAT HAS
ABSOLUTELY NO RELATION TO THE PRACTICE OF POLYGAMY, HOWEVER MUCH THAT
PRACTICE MAY HAVE BEEN CONSIDERED IMMORAL IN 1910. 

YET THIS COURT IN CAMINETTI V. UNITED STATES, 242 U.S. 470, OVER THE
VIGOROUS DISSENT OF JUSTICE MCKENNA IN WHICH CHIEF JUSTICE WHITE AND
JUSTICE CLARKE JOINED, CLOSED ITS EYES TO THE OBVIOUS AND INTERPRETED
THE BROAD WORDS OF THE STATUTE WITHOUT REGARD TO THE EXPRESS WISHES OF
CONGRESS.  I THINK THE CAMINETTI CASE CAN BE FACTUALLY DISTINGUISHED
FROM THE SITUATION AT HAND SINCE IT DID NOT DEAL WITH POLYGAMY.  BUT
THE PRINCIPLE OF THE CAMINETTI CASE IS STILL WITH US TODAY, THE
PRINCIPLE OF INTERPRETING AND APPLYING THE WHITE SLAVE TRAFFIC ACT IN
DISREGARD OF THE SPECIFIC PROBLEM WITH WHICH CONGRESS WAS CONCERNED.  I
BELIEVE THE ISSUE SHOULD BE MET SQUARELY AND THE CAMINETTI CASE
OVERRULED.  IT HAS BEEN ON THE BOOKS FOR NEARLY 30 YEARS AND ITS AGE
DOES NOT JUSTIFY ITS CONTINUED EXISTENCE.  STARE DECISIS CERTAINLY DOES
NOT REQUIRE A COURT TO PERPETUATE A WRONG FOR WHICH IT WAS RESPONSIBLE,
ESPECIALLY WHEN NO RIGHTS HAVE ACCRUED IN RELIANCE ON THE ERROR.  CF.
HELVERING V. HALLOCK, 309 U.S. 106, 121-22.  OTHERWISE THE ERROR IS
ACCENTUATED; AND INDIVIDUALS, WHATEVER MAY BE SAID OF THEIR MORALITY,
ARE FINED AND IMPRISONED CONTRARY TO THE WISHES OF CONGRESS.  I SHALL
NOT BE A PARTY TO THAT PROCESS. 

THE CONSEQUENCE OF PROLONGING THE CAMINETTI PRINCIPLE IS TO MAKE THE
FEDERAL COURTS THE ARBITERS OF THE MORALITY OF THOSE WHO CROSS STATE
LINES IN THE COMPANY OF WOMEN AND GIRLS.  THEY MUST DECIDE WHAT IS
MEANT BY "ANY OTHER IMMORAL PURPOSE" WITHOUT REGARD TO THE STANDARDS
PLAINLY SET FORTH BY CONGRESS.  I DO NOT BELIEVE THAT THIS FALLS WITHIN
THE LEGITIMATE SCOPE OF THE JUDICIAL FUNCTION.  NOR DOES IT ACCORD THE
RESPECT TO WHICH CONGRESSIONAL PRONOUNCEMENTS ARE ENTITLED. 

HENCE I WOULD REVERSE THE JUDGMENTS
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CHAMPLIN RFG. CO. V. UNITED STATES, 329 U.S. 29 


NO. 21.  ARGUED NOVEMBER 8, 9, 1945.  - REARGUED OCTOBER 18, 21, 1946. 
DECIDED NOVEMBER 18, 1946.  - 59 F.SUPP.  978, AFFIRMED. 


APPELLANT OWNS AND OPERATES A PIPE LINE FROM ITS REFINERY IN OKLAHOMA
TO VARIOUS DISTRIBUTING POINTS IN OTHER STATES.  IT CARRIES NO
COMMODITIES EXCEPT ITS OWN, PRODUCED IN ITS OWN REFINERY AND DELIVERED
INTO ITS OWN STORAGE TANKS FOR SALE TO ITS CUSTOMERS.  DELIVERY IS MADE
FROM APPELLANT'S STORAGE TANKS BY MEANS OF TRUCK RACKS OR RAILROAD TANK
CAR RACKS AND NEVER DIRECTLY FROM THE PIPE LINE.  APPELLANT HAS NEVER
TRANSPORTED, OFFERED TO TRANSPORT, OR BEEN ASKED TO TRANSPORT ANY
PRODUCTS BELONGING TO OTHERS AND HAS NEVER FILED ANY TARIFFS OF
TRANSPORTATION CHARGES WITH THE INTERSTATE COMMERCE COMMISSION OR ANY
STATE COMMISSION OR REGULATORY BODY.  HOWEVER, THE PRICE AT THE
TERMINAL POINTS, WITH SOME EXCEPTIONS, INCLUDES THE F.O.B. PRICE AT THE
REFINERY, PLUS A DIFFERENTIAL BASED ON THE RAILROAD FREIGHT RATE FROM
THE REFINERY TO FINAL DESTINATION.  THE INTERSTATE COMMERCE COMMISSION
ORDERED APPELLANT TO FILE AN INVENTORY OF ITS PROPERTY FOR THE PURPOSE
OF VALUATION PURSUANT TO SEC. 19(A) OF THE INTERSTATE COMMERCE ACT. 
HELD: 

1.  APPELLANT IS A "COMMON CARRIER" WITHIN THE MEANING OF SEC.
1(3)(A) OF THE INTERSTATE COMMERCE ACT; AND THE COMMISSION'S ORDER
REQUIRING APPELLANT TO FILE AN INVENTORY OF ITS PROPERTY FOR PURPOSES
OF VALUATION PURSUANT TO SEC. 19(A) IS AUTHORIZED BY THE ACT.  PP. 32
34. 

(A)  SECTION 1(3)(A) OF THE ACT DEFINES THE TERM "COMMON CARRIER" AS
INCLUDING "ALL PIPE LINE COMPANIES" AND NOT MERELY THOSE ENGAGED IN THE
BUSINESS OF COMMON LAW CARRIERS FOR HIRE.  PP. 33, 34. 

(B)  APPELLANT'S OPERATION IS "TRANSPORTATION" WITHIN THE MEANING OF
SEC. 1(1)(B), WHICH PROVIDES THAT THE ACT SHALL APPLY TO "COMMON
CARRIERS" ENGAGED IN THE "TRANSPORTATION OF OIL OR OTHER COMMODITY  ...
BY PIPE LINE  ..."  P. 34. 

2.  AS SO CONTRUED, THE ACT DOES NOT EXCEED THE COMMERCE POWER OF
CONGRESS OR VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  PP.
34, 35. 

(A)  THE POWER OF CONGRESS TO REGULATE INTERSTATE COMMERCE IS NOT
DEPENDENT ON A TECHNICAL COMMON CARRIER STATUS BUT IS QUITE AS
EXTENSIVE OVER A PRIVATE CARRIER.  P. 35. 

(B)  IT IS ADEQUATE TO SUPPORT A REQUIREMENT THAT APPELLANT FURNISH
INFORMATION AS TO FACILITIES BEING USED IN INTERSTATE MARKETING OF ITS
PRODUCTS - WHETHER APPELLANT BE CONSIDERED A PRIVATE CARRIER OR A
COMMON CARRIER.  P. 35. 

(C)  A MERE REQUIREMENT THAT APPELLANT PROVIDE INFORMATION ABOUT A
SUBJECT WITHIN THE POWER POSSESSED BY CONGRESS AND DELEGATED TO THE
COMMISSION CANNOT BE CONSIDERED A TAKING OF PROPERTY.  P. 35. 

CHAMPLIN REFINING CO. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF OKLAHOMA. 

A THREE-JUDGE DISTRICT COURT DENIED AN INJUNCTION AGAINST AN ORDER OF
THE INTERSTATE COMMERCE COMMISSION REQUIRING APPELLANT TO FILE AN
INVENTORY OF ITS PIPE LINE PROPERTY FOR PURPOSES OF VALUATION PURSUANT
TO SEC. 19(A) OF THE INTERSTATE COMMERCE ACT.  59 F.SUPP.  978. 
AFFIRMED, P. 35. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE INTERSTATE COMMERCE COMMISSION, ACTING UNDER SEC. 19(A) OF THE
INTERSTATE COMMERCE ACT,  FN1 ORDERED THE APPELLANT TO FURNISH CERTAIN
INVENTORIES, SCHEDULES, MAPS AND CHARTS OF ITS PIPE LINE PROPERTY.  FN2
CHAMPLIN'S OBJECTIONS THAT THE ACT DOES NOT AUTHORIZE THE ORDER, OR IF
IT BE CONSTRUED TO DO SO IS UNCONSTITUTIONAL, WERE OVERRULED BY THE
COMMISSION AND AGAIN BY THE DISTRICT COURT WHICH DISMISSED THE
COMPANY'S SUIT FOR AN INJUNCTION.  FN3  THESE QUESTIONS OF LAW ARE
BROUGHT HERE BY APPEAL.  JUDICIAL CODE SEC. 238, 28 U.S.C. SEC. 345. 

CHAMPLIN OWNS AND OPERATES A LINE OF SIX-INCH PIPE FIVE HUNDRED AND
SIXTEEN MILES IN LENGTH LYING IN FIVE STATES.  ORIGINATING AT
CHAMPLIN'S ENID, OKLAHOMA REFINERY, IT CROSSES KANSAS, NEBRASKA, A PART
OF SOUTH DAKOTA, AND ENDS IN IOWA.  IT IS USED ONLY TO CONVEY THE
COMPANY'S OWN REFINERY PRODUCTS TO ITS OWN TERMINAL STATIONS AT
HUTCHINSON, KANSAS; SUPERIOR, NEBRASKA; AND ROCK RAPIDS, IOWA, AT EACH
OF WHICH THE LINE CONNECTS WITH STORAGE FACILITIES FROM WHICH
DELIVERIES ARE MADE. 

THE STATUTE, SO FAR AS RELEVANT, SAYS THAT IT SHALL APPLY "TO COMMON
CARRIERS ENGAGED IN" "TRANSPORTATION OF OIL OR OTHER COMMODITY" BY PIPE
LINE FROM ONE STATE TO ANOTHER.  IT PROVIDES ALSO THAT "COMMON CARRIER"
INCLUDES "ALL PIPELINE COMPANIES."  FN4  THIS LANGUAGE ON ITS FACE
WOULD SEEM TO COVER THE APPELLANT'S OPERATION. 

CHAMPLIN CONTENDS, HOWEVER, THAT THE "TRANSPORTATION" MENTIONED IN
THE ACT DOES NOT REFER TO THE CARRIAGE OF ONE'S OWN GOODS.  THE
DISTRICT COURT HAS FOUND THAT CHAMPLIN IS THE SOLE OWNER OF THE
PRODUCTS TRANSPORTED THROUGH ITS PIPE LINE; IT HAS NEVER TRANSPORTED,
OFFERED TO TRANSPORT, OR BEEN ASKED TO TRANSPORT ANY PRODUCTS BELONGING
TO ANY OTHER COMPANY OR PERSON; ITS PIPE LINE DOES NOT CONNECT WITH ANY
OTHER PIPE LINE BUT ONLY WITH STORAGE TANKS AT THE THREE TERMINAL
POINTS; THERE ARE NO FACILITIES FOR PUTTING ANY PETROLEUM PRODUCT INTO
THE LINE OTHER THAN AT THE ENID REFINERY; DELIVERY OF THE PRODUCTS AT
THE THREE TERMINAL POINTS IS MADE FROM CHAMPLIN'S STORAGE TANKS BY
MEANS OF TRUCK RACKS OR RAILROAD TANK CAR RACKS AND IS NOT MADE
DIRECTLY FROM THE PIPE LINE IN ANY INSTANCE; NO TARIFFS STATING
TRANSPORTATION CHARGES HAVE BEEN FILED WITH THE INTERSTATE COMMERCE
COMMISSION OR WITH ANY STATE COMMISSION OR REGULATORY BODY. 

BECAUSE OF THESE FACTS THE APPELLANT SUGGESTS THAT THE LANGUAGE AND
HOLDING OF THIS COURT CONCERNING THE UNCLE SAM OIL COMPANY IN THE PIPE
LINE CASES, 234 U.S. 548, APPROVED IN VALVOLINE OIL COMPANY V. UNITED
STATES, 308 U.S. 141, GOVERN THIS CASE.  THE UNCLE SAM COMPANY
OPERATION IS DESCRIBED AS "SIMPLY DRAWING OIL FROM ITS OWN WELLS ACROSS
A STATE LINE TO ITS OWN REFINERY FOR ITS OWN USE, AND THAT IS ALL
..."  THE PIPE LINE CASES, 234 U.S. 548, 562.  THE COURT CONSIDERED
THIS WAS NOT "TRANSPORTATION" WITHIN THE MEANING OF THE ACT. 

BUT WE THINK IT WOULD EXPAND THE ACTUAL HOLDING OF THAT CASE TO APPLY
ITS CONCLUSION TO CHAMPLIN.  THE CONTROLLING FACT UNDER THE STATUTE IS
TRANSPORTING COMMODITIES FROM STATE TO STATE BY PIPE LINE.  ADMITTEDLY
CHAMPLIN IS NOT A COMMON CARRIER IN THE SENSE OF THE COMMON LAW CARRIER
FOR HIRE.  HOWEVER, THE ACT DOES NOT STOP AT THIS BUT GOES ON TO SAY
THAT ITS USE OF THE TERM "COMMON CARRIER" IS TO INCLUDE ALL PIPE LINE
COMPANIES - A MEANINGLESS ADDITION IF IT THEREBY INCLUDED ONLY WHAT THE
TERM WITHOUT MORE ALWAYS HAD INCLUDED.  WHILE CHAMPLIN TECHNICALLY IS
TRANSPORTING ITS OWN OIL, MANUFACTURING PROCESSES HAVE BEEN COMPLETED;
THE OIL IS NOT BEING MOVED FOR CHAMPLIN'S OWN USE.  THESE INTERSTATE
FACILITIES ARE OPERATED TO PUT ITS FINISHED PRODUCTS IN THE MARKET IN
INTERSTATE COMMERCE AT THE GREATEST ECONOMIC ADVANTAGE. 

EXAMINATION OF CHAMPLIN'S PRICING METHODS SUPPORTS THE VIEW THAT
APPELLANT IS ENGAGED IN TRANSPORTATION EVEN THOUGH THE PRODUCTS ARE
STILL ITS OWN WHEN MOVED.  THE DISTRICT COURT FOUND THAT PRICE AT THE
TERMINAL POINTS INCLUDES F.O.B. PRICE AT THE ENID REFINERY AND AN
ADDITIONAL SUM CALLED A DIFFERENTIAL.  THE DIFFERENTIAL IS THE THROUGH
RAILROAD FREIGHT RATE FROM ENID TO THE FINAL DESTINATION (USUALLY THE
PURCHASER'S PLACE OF BUSINESS), LESS THE CARRYING CHARGES FROM THE PIPE
LINE TERMINAL TO FINAL DESTINATION.  THE DISTRICT COURT FOUND, HOWEVER,
THAT COMPETITIVE AND OTHER CONDITIONS "SOMETIMES CAUSE DEPARTURES FROM
THE PRICES ARRIVED AT IN ACCORDANCE WITH THE FORMULA ABOVE DESCRIBED." 
APPELLANT STATES THAT AS TO SOME DELIVERIES "RAIL RATES WERE USED
MERELY AS A BASIS FOR CALCULATING A DELIVERED PRICE, NOT AS A CHARGE
FOR TRANSPORTATION."  EVEN SO, AND EVEN THOUGH DEPARTURES FROM THE
CALCULATED DIFFERENTIAL ARE SUBSTANTIAL AND FREQUENT, WE THINK THIS
PRACTICE POINTS UP A SIGNIFICANT DISTINCTION FROM THE UNCLE SAM CASE. 

WE HOLD THAT CHAMPLIN'S OPERATION IS TRANSPORTATION WITHIN THE
MEANING OF THE ACT AND THAT THE STATUTE SUPPORTS THE COMMISSION'S ORDER
TO FURNISH INFORMATION. 

APPELLANT FURTHER CONTENDS THAT, AS SO CONSTRUED, THE ACT EXCEEDS THE
COMMERCE POWER OF CONGRESS AND VIOLATES THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT BECAUSE, IT IS ARGUED, THIS INTERPRETATION CONVERTS A
PRIVATE PIPE LINE INTO A PUBLIC UTILITY AND REQUIRES A PRIVATE CARRIER
TO BECOME A COMMON CARRIER.  BUT OUR CONCLUSION RESTS ON NO SUCH BASIS
AND AFFORDS NO SUCH IMPLICATION.  THE POWER OF CONGRESS TO REGULATE
INTERSTATE COMMERCE IS NOT DEPENDENT ON THE TECHNICAL COMMON CARRIER
STATUS BUT IS QUITE AS EXTENSIVE OVER A PRIVATE CARRIER.  THIS POWER
HAS YET BEEN INVOKED ONLY TO THE EXTENT OF REQUIRING CHAMPLIN TO
FURNISH CERTAIN INFORMATION AS TO FACILITIES BEING USED IN INTERSTATE
MARKETING OF ITS PRODUCTS.  THE COMMERCE POWER IS ADEQUATE TO SUPPORT
THIS REQUIREMENT WHETHER APPELLANT BE CONSIDERED A PRIVATE CARRIER OR A
COMMON CARRIER. 

THE CONTENTION THAT THE STATUTE AS SO CONSTRUED VIOLATES THE DUE
PROCESS CLAUSE BY IMPOSING UPON A PRIVATE CARRIER THE OBLIGATIONS OF A
CONVENTIONAL COMMON CARRIER FOR HIRE IS TOO PREMATURE AND HYPOTHETICAL
TO WARRANT CONSIDERATION ON THIS RECORD.  THE APPELLANT IN ITS ENTIRE
PERIOD OF OPERATION HAS NEVER BEEN ASKED TO CARRY THE PRODUCTS OF
ANOTHER AND MAY NEVER BE.  SO FAR, THE COMMISSION HAS MADE NO ORDER
WHICH CHANGES THE APPELLANT'S OBLIGATIONS TO ANY OTHER COMPANY OR
PERSON.  IF IT DOES, IT WILL BE TIMELY TO CONSIDER CONCRETE
REQUIREMENTS AND THEIR SPECIFIC EFFECTS ON APPELLANT.  AT PRESENT,
APPELLANT IS ASKED ONLY TO PROVIDE INFORMATION ABOUT A SUBJECT WITHIN
THE POWER POSSESSED BY CONGRESS AND DELEGATED TO THE COMMISSION, AND
THAT CANNOT BE CONSIDERED A TAKING OF PROPERTY EVEN IF IT AROUSES
APPELLANT'S PREMONITIONS. 

WE HOLD THAT THE ORDER BEFORE US IS AUTHORIZED BY STATUTE AND THAT IN
THIS RESPECT THE STATUTE IS WITHIN THE COMMERCE POWER AND DOES NOT
OFFEND THE FIFTH AMENDMENT.  AFFIRMED. 

FN1  "...  THE COMMISSION SHALL  ...  INVESTIGATE, ASCERTAIN, AND
REPORT THE VALUE OF ALL THE PROPERTY OWNED OR USED BY EVERY COMMON
CARRIER SUBJECT TO THE PROVISIONS OF THIS ACT....  THE COMMISSION SHALL
MAKE AN INVENTORY WHICH SHALL LIST THE PROPERTY OF EVERY COMMON CARRIER
SUBJECT TO THE PROVISIONS OF THIS ACT IN DETAIL, AND SHOW THE VALUE
THEREOF AS HEREINAFTER PROVIDED, AND SHALL CLASSIFY THE PHYSICAL
PROPERTY, AS NEARLY AS PRACTICABLE, IN CONFORMITY WITH THE
CLASSIFICATION OF EXPENDITURES FOR ROAD AND EQUIPMENT, AS PRESCRIBED BY
THE INTERSTATE COMMERCE COMMISSION."  37 STAT. 701, 49 U.S.C. SEC.
19A. 

FN2  ON MAY 15, 1941, THE INTERSTATE COMMERCE COMMISSION, BY LETTER
ADDRESSED TO THE PRESIDENT OF THE CHAMPLIN REFINING COMPANY, REQUESTED
THAT THE COMPANY PREPARE AND FILE WITH THE COMMISSION "A COMPLETE
INVENTORY OF THE PIPE LINE PROPERTY OF THE CHAMPLIN REFINING COMPANY,
EXCEPT LAND, SHOWING THE QUANTITIES, UNITS, CLASSES, KINDS, AND
CONDITION THEREOF."  THE COMMISSION ENCLOSED WITH ITS LETTER COPIES OF
ITS VALUATION ORDERS NOS. 26 AND 27, WITH WHICH THE INVENTORY WAS TO
COMPLY.  THE CHAMPLIN COMPANY DID NOT RESPOND TO THE REQUEST IN A
MANNER SATISFACTORY TO THE COMMISSION, AND ON JUNE 12, 1944, THE
COMMISSION MADE THE ORDER OF WHICH THE COMPANY HERE COMPLAINS.  IT
DIRECTED THE COMPANY TO COMPLY WITH THE PROVISIONS OF VALUATION ORDERS
NOS. 26 AND 27 WITHIN NINETY DAYS OF THE SERVICE OF THE ORDER. 

FN3  IN RESPONSE TO THE COMMISSION'S LETTER OF MAY 15, 1941, THE
CHAMPLIN COMPANY FILED WITH THE COMMISSION INFORMATION AND CHARTS WHICH
IT BELIEVED WOULD SATISFY THE COMMISSION'S REQUEST.  THE COMMISSION,
HOWEVER, RETURNED THAT REPORT TO THE COMPANY, BECAUSE IN IT THE COMPANY
HAD NOT RECOGNIZED THAT IT WAS A STATUTORY COMMON CARRIER AND HAD NOT
COMPILED THE REPORT FROM THAT VIEWPOINT.  THE COMPANY THEN REQUESTED A
HEARING BEFORE THE COMMISSION TO DETERMINE ITS STATUS.  ON DECEMBER 14,
1942, AND ON REARGUMENT, JUNE 12, 1944, THE COMMISSION DECIDED THAT
APPELLANT IS A COMMON CARRIER SUBJECT TO THE PROVISIONS OF THE ACT. 
AFTER THE COMMISSION HAD ISSUED ITS SUPPLEMENTARY ORDER OF JUNE 12,
1944, APPELLANT PETITIONED THE DISTRICT COURT FOR AN INJUNCTION AGAINST
THE ORDER.  IN ACCORDANCE WITH SECS. 46 AND 47 OF TITLE 28, U.S.C., THE
DISTRICT JUDGE CONVENED A THREE JUDGE COURT, WHICH HEARD THE CASE AND
DISMISSED APPELLANT'S PETITION. 

FN4  SEC. 1.  "(1)  THAT THE PROVISIONS OF THIS ACT SHALL APPLY TO
COMMON CARRIERS ENGAGED IN - 

"(B)  THE TRANSPORTATION OF OIL OR OTHER COMMODITY  ...  BY PIPE LINE
...  FROM ONE STATE  ... TO ANY OTHER STATE  ... 

"(3)(A)  THE TERM 'COMMON CARRIER' AS USED IN THIS ACT SHALL INCLUDE
ALL PIPE-LINE COMPANIES; EXPRESS COMPANIES; SLEEPING-CAR COMPANIES; AND
ALL PERSONS, NATURAL OR ARTIFICIAL, ENGAGED IN SUCH TRANSPORTATION AS
AFORESAID AS COMMON CARRIERS FOR HIRE."  41 STAT. 474, AS AMENDED, 48
STAT. 1102, 49 U.S.C. SEC. 1.  THE LAST WORDS OF SEC. 1(3)(A), "ENGAGED
IN SUCH TRANSPORTATION AS AFORESAID AS COMMON CARRIERS FOR HIRE," DO
"NOT AFFECT THE GENERALITY OF THE FIRST CLAUSE AS TO PIPE-LINE
COMPANIES."  VALVOLINE OIL CO. V. UNITED STATES, 308 U.S. 141, 146. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
DOUGLAS AND MR. JUSTICE BURTON JOIN, DISSENTING. 

THIS APPEAL BRINGS INTO QUESTION THE EXTENT TO WHICH THE INTERSTATE
COMMERCE ACT COVERS PIPE LINES BY VIRTUE OF THE PROVISIONS OF SEC. 1
AND SEC. 19A.  FN1  ACTING UNDER THE AUTHORITY OF THESE SECTIONS, THE
INTERSTATE COMMERCE COMMISSION CALLED UPON THE APPELLANT, CHAMPLIN
REFINING COMPANY, FOR REPORTS DEEMED APPROPRIATE FOR IT TO MAKE, IF IT
IS A COMMON CARRIER UNDER THE ACT.  THE APPELLANT CHALLENGED THE
COMMISSION'S ORDER ON THE GROUND THAT IT WAS NOT COVERED BY THE

CHAMPLIN OWNS A PIPE LINE FOR THE CARRIAGE OF OIL OR OTHER SIMILAR
COMMODITY FROM ITS REFINERY IN OKLAHOMA TO VARIOUS DISTRIBUTING POINTS
IN OTHER STATES.  IT CARRIES NO COMMODITIES EXCEPT ITS OWN PRODUCED IN
ITS OWN REFINERY AND DELIVERED AT THE ENDS OF THE PIPE LINE INTO ITS
OWN STORAGE OR HOLDING TANKS FOR SALE TO ITS CUSTOMERS.  IT ALSO IS
SOLE OWNER OF THE STOCK OF THE CIMARRON VALLEY PIPE LINE COMPANY,
ADMITTEDLY AN INTRASTATE COMMON CARRIER, THAT SUPPLIES THE CHAMPLIN
REFINERY WITH ITS CRUDE OIL.  THE COMMISSION'S ORDERS FOR VALUATION
REPORTS DO NOT TREAT CHAMPLIN AND CIMARRON AS A UNITARY OPERATION.  THE
COMMISSION, AT THIS BAR, DISCLAIMED EXPRESSLY ANY INTENTION TO TEST THE
SUBJECTION OF CHAMPLIN'S DISTRIBUTING PIPE LINE TO COMMISSION POWER BY
CHAMPLIN'S OWNERSHIP OF THE CIMARRON STOCK.  AS THE COURT TREATS THE
SITUATION AS THOUGH CHAMPLIN'S DISTRIBUTING PIPE LINE, BETWEEN THE
REFINERY AND THE SALE TANKS ONLY, WERE INVOLVED, WE ACCEPT FOR THE
PURPOSE OF THIS DISSENT THE COMMISSION'S VIEW OF THE TEST TO BE APPLIED
TO CHAMPLIN. 

ENGAGED IN THE TRANSPORTATION OF OIL" OR SIMILAR COMMODITIES.  IN THE
PIPE LINE CASES, 234 U.S. 548, AND VALVOLINE OIL CO. V. UNITED STATES,
308 U.S. 141, THIS COURT INTERPRETED THE TERM "COMMON CARRIER" TO
INCLUDE ALL INTERSTATE PIPE-LINE COMPANIES THAT ARE ENGAGED, WITHIN THE
PURVIEW OF THE ACT, IN THE TRANSPORTATION OF OIL.  IN THESE CASES, PIPE
LINE COMPANIES THAT CARRIED ONLY THEIR OWN OIL, ALTHOUGH ALL OR A LARGE
PART OF IT WAS PURCHASED FROM PRODUCERS PRIOR TO ITS CARRIAGE IN THE
PIPE LINES, WERE HELD COMMON CARRIERS WITHIN THE MEANING AND PURPOSE OF
THE ACT, THOUGH NOT COMMON CARRIERS IN THE TECHNICAL SENSE OF HOLDING
ONE'S SELF OUT TO CARRY INDISCRIMINATELY ALL OIL OFFERED, BECAUSE THE
ACT'S EVIDENT PURPOSE WAS TO BRING WITHIN ITS SCOPE ALL PIPE LINES THAT
WOULD CARRY ALL OIL OFFERED "IF ONLY THE OFFERERS WOULD SELL" AT THE
CARRIER'S PRICE.  IN THE VALVOLINE CASE, THIS INTERPRETATION OF THE
1906 ACT, 34 STAT. 584, WAS FOUND TO HAVE BEEN CARRIED INTO THE ACT AS
AMENDED IN 1920, 41 STAT. 474, DESPITE CERTAIN CHANGES IN LANGUAGE. 
308 U.S. AT 145.    IT IS TO BE NOTED, HOWEVER, THAT THE PIPE LINE AND
VALVOLINE CASES DID NOT BRING WITHIN THE SCOPE OF THE INTERSTATE
COMMERCE ACT ALL PIPE LINES THAT CARRIED OIL INTERSTATE.  IF THE
COMPANIES WERE COMMON CARRIERS IN SUBSTANCE, THE ACT MADE THEM SO IN
FORM.  THOSE PIPE LINES HELD COVERED BY THE ACT IN THE PIPE LINE CASES
AND VALVOLINE WERE FOUND COMMON CARRIERS IN SUBSTANCE BECAUSE THEY
PURCHASED AND CARRIED ALL OIL OFFERED.  THE INTERSTATE COMMERCE ACT
CONTINUALLY HAS REQUIRED SUCH CARRIERS TO BE ENGAGED IN THE
TRANSPORTATION OF OIL OR OTHER COMMODITIES.  IN THE PIPE LINE CASES, A
COMPANY, UNCLE SAM OIL COMPANY, THOUGH OPERATING A PIPE LINE CARRYING
OIL, WAS HELD BEYOND THE ACT'S REACH BECAUSE NOT ENGAGED IN THE
TRANSPORTATION OF OIL AS A COMMON CARRIER WITHIN THE PURPOSE OF THE
ACT. 

"WHEN, AS IN THIS CASE, A COMPANY IS SIMPLY DRAWING OIL FROM ITS OWN
WELLS ACROSS A STATE LINE TO ITS OWN REFINERY FOR ITS OWN USE, AND THAT
IS ALL, WE DO NOT REGARD IT AS FALLING WITHIN THE DESCRIPTION OF THE
ACT, THE TRANSPORTATION BEING MERELY AN INCIDENT TO USE AT THE END." 
234 U.S. AT 562. 

THERE HAS BEEN NO CHANGE BEARING ON THIS QUESTION IN THE APPLICABLE
ACTS SINCE THE PIPE LINE CASES.  AS A MATTER OF STATUTORY CONSTRUCTION,
WE SEE NO REASON TO CHANGE FROM THIS COURT'S LONG-STANDING
INTERPRETATION.  IF CONGRESS DESIRES TO UNDERTAKE REGULATION OF THE
TRANSPORTATION OF AN INTERSTATE CARRIER, IN SUBSTANCE A PRIVATE
CARRIER, IT UNDERSTANDS THE METHOD OF APPROACH.  49 U.S.C. SEC.
304(A)(3).  THERE IS NO PERTINENT LEGISLATIVE HISTORY TO SUPPORT SO
BROAD AN INTERPRETATION OF PIPE LINE LEGISLATION.  THE EVIL SOUGHT TO
BE REMEDIED WAS THE MASTERY OF OIL THROUGH CONTROL OF THE GATHERING
FACILITIES N2.  IF A LINE DOES NOT CARRY OIL OF OTHERS, IT IS NOT
TRANSPORTING WITHIN THE CONTEMPLATION OF THE ACT. 

IN THE UNCLE SAM CASE IT WAS SAID THAT THE TRANSPORTATION OF OIL FROM
WELL TO REFINERY WAS "MERELY AN INCIDENT TO USE AT THE END."  WE SEE NO
DIFFERENCE BETWEEN THE USE CONTEMPLATED BY THE UNCLE SAM COMPANY AND
THIS COMPANY.  EACH CARRIES ITS OWN OIL FOR THE SAME ULTIMATE PURPOSE -
TO REACH THE MARKET. 

NOR CAN WE SEE ANY SIGNIFICANT DISTINCTION FROM THE UNCLE SAM CASE IN
THE PRACTICE OF CHAMPLIN TO USE FREQUENTLY THE FREIGHT RATE FROM ENID
TO THE FINAL DESTINATION AS A MEASURE OF THE ADDITION TO ENID REFINERY,
F.O.B. PRICE THAT IT WILL CHARGE AT ITS DISTRIBUTING TANKS.  THIS
PRACTICE IS DEPARTED FROM TO MEET COMPETITION.  NATURALLY SOME
TRANSPORTATION COST MUST BE ADDED TO THE REFINERY PRICE FOR DELIVERIES
ELSEWHERE.  HOW MUCH IT IS OR HOW IT IS CALCULATED DOES NOT SEEM TO US
TO BEAR UPON THE QUESTION OF WHETHER CHAMPLIN IS "A COMMON CARRIER
ENGAGED IN THE TRANSPORTATION OF OIL" WITHIN THE SCOPE OF THE ACT. 

WE WOULD HAVE A VERY DIFFERENT CASE THAN THE ONE BEFORE US IF
CONGRESS HAD PROVIDED THAT ALL OWNERS OF PIPE LINES CARRYING OIL IN
INTERSTATE COMMERCE SHOULD GIVE APPROPRIATE INFORMATION TO THE
INTERSTATE COMMERCE COMMISSION.  THIS IS NOT WHAT SEC. 19A DOES.  IT
REQUIRES REPORTS ONLY FROM "EVERY COMMON CARRIER SUBJECT TO THE
PROVISIONS" OF THE ACT.  WHEN AN ENTERPRISE IS "SUBJECT TO THE
PROVISIONS" OF THE ACT IS DEFINED BY SEC. 1(1)(B) AND SEC. 1(3). 
THEREFORE, IT IS NOT SEC. 19A BUT SEC. 1 THAT MUST BE CONSTRUED.  THE
DEFINITION OF SEC. 1 FLOWS NOT ONLY INTO SEC. 19A BUT ALSO INTO VARIOUS
OTHER SECTIONS.  ONCE AN ENTERPRISE IS FOUND TO BE INCLUDED IN SEC. 1,
THE INTERSTATE COMMERCE ACT SUBJECTS IT TO SEC. 19A AND OTHER
PROVISIONS DEALING WITH COMMON CARRIERS "SUBJECT TO" THE ACT.  THUS, TO
GIVE TWO INSTANCES, IT MUST PROVIDE EQUAL AND REASONABLE TRANSPORTATION
TO ALL COMERS, (SEC. 1(4)-(6)); AND IT MUST FILE A SCHEDULE OF RATES
(SEC. 6(1)).  IF, THEREFORE, ANY DOUBT IS FELT ABOUT THE APPLICABILITY
OF SOME OF THESE REQUIREMENTS, THE DOUBTS ARE PROPERLY TO BE TAKEN INTO
ACCOUNT IN DETERMINING THE SCOPE OF SEC. 1.  THE RANGE OF SERVITUDES TO
WHICH THIS PIPE LINE IS SUBJECTED BY INCLUDING IT IN SEC. 1 BEARS
VITALLY UPON WHETHER SUCH A CONSTRUCTION SHOULD BE GIVEN TO SEC. 1. 

FOR THE REASONS DETAILED ABOVE, WE DO NOT THINK THAT CHAMPLIN IS
COVERED BY THE ACT AND WE WOULD REVERSE THE DECREE OF THE DISTRICT
COURT. 

FN1  49 U.S.C. SEC. 1: 

"(1)  ...  THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO COMMON
CARRIERS ENGAGED IN - 

"(B)  THE TRANSPORTATION OF OIL OR OTHER COMMODITY, EXCEPT WATER AND
EXCEPT NATURAL OR ARTIFICIAL GAS, BY PIPE LINE, OR PARTLY BY PIPE LINE
AND PARTLY BY RAILROAD OR BY WATER; 

     .         .         .         .         . 

"(3)(A)  THE TERM 'COMMON CARRIER' AS USED IN THIS CHAPTER SHALL
INCLUDE ALL PIPE-LINE COMPANIES; EXPRESS COMPANIES; SLEEPING-CAR
COMPANIES; AND ALL PERSONS, NATURAL OR ARTIFICIAL, ENGAGED IN SUCH
TRANSPORTATION AS AFORESAID AS COMMON CARRIERS FOR HIRE  ..." 

49 U.S.C. SEC. 19A: 

"...  THE COMMISSION SHALL  ...  INVESTIGATE, ASCERTAIN, AND REPORT
THE VALUE OF ALL THE PROPERTY OWNED OR USED BY EVERY COMMON CARRIER
SUBJECT TO THE PROVISIONS OF THIS CHAPTER  ...  THE COMMISSION SHALL
...  MAKE AN INVENTORY WHICH SHALL LIST THE PROPERTY OF EVERY COMMON
CARRIER SUBJECT TO THE PROVISIONS OF THIS CHAPTER IN DETAIL, AND SHOW
THE VALUE THEREOF AS HEREINAFTER PROVIDED, AND SHALL CLASSIFY THE
PHYSICAL PROPERTY, AS NEARLY AS PRACTICABLE, IN CONFORMITY WITH THE
CLASSIFICATION OF EXPENDITURES FOR ROAD AND EQUIPMENT, AS PRESCRIBED BY
THE INTERSTATE COMMERCE COMMISSION." 

FN2  234 U.S. AT 558-59: 

"BY THE BEFORE MENTIONED AND SUBORDINATE LINES THE STANDARD OIL
COMPANY HAD MADE ITSELF MASTER OF THE ONLY PRACTICABLE OIL
TRANSPORTATION BETWEEN THE OIL FIELDS EAST OF CALIFORNIA AND THE
ATLANTIC OCEAN AND CARRIED MUCH THE GREATER PART OF THE OIL BETWEEN
THOSE POINTS." 
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FISHER V. UNITED STATES, 328 U.S. 463 


NO. 122.  ARGUED DECEMBER 5, 1945.  - DECIDED JUNE 10, 1946.  - 80 U.S.
APP. D.C. 96, 149 F.2D 28, AFFIRMED. 


1.  IN A TRIAL IN THE DISTRICT OF COLUMBIA FOR MURDER IN THE FIRST
DEGREE, AS DEFINED IN D.C. CODE, 1940, TITLE 22, SEC. 2401, WHICH MAKES
DELIBERATION AND PREMEDITATION ESSENTIAL ELEMENTS OF THE CRIME, IT WAS
NOT ERROR FOR THE COURT TO REFUSE TO INSTRUCT THE JURY THAT THEY SHOULD
CONSIDER EVIDENCE OF THE DEFENDANT'S MENTAL DEFICIENCY, CONCEDEDLY NOT
AMOUNTING TO LEGAL INSANITY, TO DETERMINE WHETHER HE WAS GUILTY OF
MURDER IN THE FIRST OR SECOND DEGREE.  PP. 464, 470, 473. 

2.  THIS COURT MAY NOTICE MATERIAL ERROR IN THE INSTRUCTIONS IN A
CRIMINAL CASE EVEN THOUGH THE ERROR IS NOT SPECIFICALLY CHALLENGED; AND
THE COURT SHOULD DO SO WHEN LIFE IS AT STAKE, EVEN IN CASES FROM THE
DISTRICT OF COLUMBIA.  PP. 467, 468. 

3.  MATTERS RELATING TO LAW ENFORCEMENT IN THE DISTRICT OF COLUMBIA
BEING ENTRUSTED TO THE COURTS OF THE DISTRICT, THE POLICY OF THIS COURT
IS NOT TO INTERFERE WITH THE LOCAL RULES OF LAW WHICH THEY FASHION,
SAVE IN EXCEPTIONAL SITUATIONS WHERE EGREGIOUS ERROR HAS BEEN
COMMITTED.  P. 476. 

FISHER V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

PETITIONER WAS CONVICTED OF MURDER IN THE FIRST DEGREE AND SENTENCED
TO DEATH.  THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA AFFIRMED.  80 U.S. APP. D.C. 96, 149 F.2D 28.  THIS COURT
GRANTED CERTIORARI.  326 U.S. 705.  AFFIRMED, P. 477. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT OF CERTIORARI BRINGS HERE FOR REVIEW THE SENTENCE OF DEATH
IMPOSED UPON PETITIONER BY THE DISTRICT COURT OF THE UNITED STATES FOR
THE DISTRICT OF COLUMBIA AFTER A VERDICT OF GUILTY ON THE FIRST COUNT
OF AN INDICTMENT WHICH CHARGED PETITIONER WITH KILLING BY CHOKING AND
STRANGLING CATHERINE COOPER REARDON, WITH DELIBERATE AND PREMEDITATED
MALICE.  THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA AFFIRMED THE JUDGMENT AND SENTENCE OF THE DISTRICT COURT.  80
U.S. APP. D.C. 96, 149 F.2D 28. 

THE ERRORS PRESENTED BY THE PETITION FOR CERTIORARI AND URGED AT OUR
BAR WERE, IN SUBSTANCE, THAT THE TRIAL COURT REFUSED TO INSTRUCT THE
JURORS THAT THEY SHOULD CONSIDER THE EVIDENCE OF THE ACCUSED'S
PSYCHOPATHIC AGGRESSIVE TENDENCIES, LOW EMOTIONAL RESPONSE AND
BORDERLINE MENTAL DEFICIENCY TO DETERMINE WHETHER HE WAS GUILTY OF
MURDER IN THE FIRST OR IN THE SECOND DEGREE.  THE AGGREGATE OF THESE
FACTORS ADMITTEDLY WAS NOT ENOUGH TO SUPPORT A FINDING OF NOT GUILTY BY
REASON OF INSANITY.  FN1  DELIBERATION AND PREMEDITATION ARE NECESSARY
ELEMENTS OF FIRST DEGREE MURDER. 

CONSIDERATIONS AS TO THE EXERCISE OF AUTHORITY BY THIS COURT OVER THE
COURTS OF THE DISTRICT OF COLUMBIA IN THE INTERPRETATION OF LOCAL
CRIMINAL STATUTES INDUCED US TO GRANT THE WRIT IN VIEW OF THE ISSUE
PRESENTED.  JUDICIAL CODE, SEC. 240(A). 

THE HOMICIDE TOOK PLACE IN THE LIBRARY BUILDING ON THE GROUNDS OF THE
CATHEDRAL OF SAINT PETER AND SAINT PAUL, WASHINGTON, D.C., BETWEEN
EIGHT AND NINE O'CLOCK, A.M., ON MARCH 1, 1944.  THE VICTIM WAS THE
LIBRARIAN.  SHE HAD COMPLAINED TO THE VERGER A FEW DAYS BEFORE ABOUT
PETITIONER'S CARE OF THE PREMISES.  THE PETITIONER WAS THE JANITOR. 
THE VERGER HAD TOLD HIM OF THE COMPLAINT.  MISS REARDON AND FISHER WERE
ALONE IN THE LIBRARY AT THE TIME OF THE HOMICIDE.  THE PETITIONER
TESTIFIED THAT MISS REARDON WAS KILLED BY HIM IMMEDIATELY FOLLOWING
INSULTING WORDS FROM HER OVER HIS CARE OF THE PREMISES.  AFTER SLAPPING
HER IMPULSIVELY, PETITIONER RAN UP A FLIGHT OF STEPS TO REACH AN EXIT
ON A HIGHER LEVEL BUT TURNED BACK DOWN, AFTER SEIZING A CONVENIENT
STICK OF FIREWOOD, TO STOP HER SCREAMING.  HE STRUCK HER WITH THE STICK
AND WHEN IT BROKE CHOKED HER TO SILENCE.  HE THEN DRAGGED HER TO A
LAVATORY AND LEFT THE BODY TO CLEAN UP SOME SPOTS OF BLOOD ON THE FLOOR
OUTSIDE.  WHILE FISHER WAS DOING THIS CLEANING UP, THE VICTIM "STARTED
HOLLERING AGAIN."  FISHER THEN TOOK OUT HIS KNIFE AND STUCK HER IN THE
THROAT.  SHE WAS SILENT.  AFTER THAT HE DRAGGED HER BODY DOWN INTO AN
ADJOINING PUMP PIT, WHERE IT WAS FOUND THE NEXT MORNING.  THE ABOVE
FACTS MADE UP PETITIONER'S STORY TO THE JURY OF THE KILLING. 

IT MAY OR MAY NOT HAVE BEEN ACCEPTED AS A WHOLE BY THE JURY.  OTHER
EVIDENCE FURNISHES FACTS WHICH MAY HAVE LED THE JURY TO DISBELIEVE SOME
OF THE DETAILS OF ACCUSED'S VERSION OF THE TRAGEDY.  IN HIS ORIGINAL
CONFESSION, THE ACCUSED MADE NO REFERENCE TO MISS REARDON'S USE OF
INSULTING WORDS.  IN HIS WRITTEN CONFESSION, THEY WERE MENTIONED.  IN
HIS TESTIMONY THEIR EFFECT UPON HIM WAS AMPLIFIED.  THERE ARE MINOR
VARIATIONS BETWEEN FISHER'S WRITTEN CONFESSION AND HIS TESTIMONY.  IN
THE WRITTEN CONFESSION FISHER ADMITTED THAT HIS MAIN REASON FOR
ASSAULTING MISS REARDON WAS BECAUSE SHE REPORTED HIM FOR NOT CLEANING
THE LIBRARY FLOOR.  THE DEPUTY CORONER SAID THE KNIFE WOUND WAS NOT
DEEP, "JUST WENT THROUGH THE SKIN." 

THE EFFORT OF THE DEFENSE IS TO SHOW THAT THE MURDER WAS NOT
DELIBERATE AND PREMEDITATED; THAT IT WAS NOT FIRST BUT SECOND DEGREE
MURDER.  A READING OF PETITIONER'S OWN TESTIMONY, SUMMARIZED ABOVE,
SHOWS CLEARLY TO US THAT THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A
VERDICT OF MURDER IN THE FIRST DEGREE, IF PETITIONER WAS A NORMAL MAN
IN HIS MENTAL AND EMOTIONAL CHARACTERISTICS.  CF. BOSTIC V. UNITED
STATES, 68 APP. D.C. 167, 94 F.2D 636, 638.  BUT THE DEFENSE TAKES THE
POSITION THAT THE PETITIONER IS FAIRLY ENTITLED TO BE JUDGED AS TO
DELIBERATION AND PREMEDITATION, NOT BY A THEORETICAL NORMALITY BUT BY
HIS OWN PERSONAL TRAITS.  IN VIEW OF THE STATUS OF THE DEFENSE OF
PARTIAL RESPONSIBILITY IN THE DISTRICT AND THE NATION NO CONTENTION IS
OR COULD BE MADE OF THE DENIAL OF DUE PROCESS.  IT IS THE CONTENTION OF
THE DEFENSE THAT THE MENTAL AND EMOTIONAL QUALITIES OF PETITIONER WERE
OF SUCH A LEVEL AT THE TIME OF THE CRIME THAT HE WAS INCAPABLE OF
DELIBERATION AND PREMEDITATION ALTHOUGH HE WAS THEN SANE IN THE USUAL
LEGAL SENSE.  HE KNEW RIGHT FROM WRONG.  SEE M'NAGHTEN'S CASE, 10 CL. &
FIN.  200, 210.  HIS WILL WAS CAPABLE OF CONTROLLING HIS IMPULSES. 
SMITH V. UNITED STATES, 59 APP. D.C. 144, 36 F.2D 548.  TESTIMONY OF
PSYCHIATRISTS TO SUPPORT PETITIONER'S CONTENTION WAS INTRODUCED.  AN
INSTRUCTION CHARGING THE JURY TO CONSIDER THE PERSONALITY OF THE
PETITIONER IN DETERMINING INTENT, PREMEDITATION AND DELIBERATION WAS
SOUGHT AND REFUSED. 

FROM THE EVIDENCE OF THE PSYCHIATRISTS FOR THE DEFENSE, THE JURY
MIGHT HAVE CONCLUDED THE PETITIONER WAS MENTALLY SOMEWHAT BELOW THE
AVERAGE WITH MINOR STIGMATA OF MENTAL SUBNORMALCY.  AN EXPERT TESTIFIED
THAT HE WAS A PSYCHOPATHIC PERSONALITY  FN2  OF A PREDOMINANTLY
AGGRESSIVE TYPE.  THERE WAS EVIDENCE THAT PETITIONER WAS UNABLE BY
REASON OF A DERANGED MENTAL CONDITION TO RESIST THE IMPULSE TO KILL
MISS REARDON.  ALL EVIDENCE OFFERED BY THE DEFENSE WAS ACCEPTED BY THE
TRIAL COURT.  THE PROSECUTION HAD COMPETENT EVIDENCE THAT PETITIONER
WAS CAPABLE OF UNDERSTANDING THE NATURE AND QUALITY OF HIS ACTS. 
INSTRUCTIONS IN THE USUAL FORM WERE GIVEN BY THE COURT SUBMITTING TO
THE JURY THE ISSUES OF INSANITY, IRRESISTIBLE IMPULSE, MALICE,
DELIBERATION AND PREMEDITATION.  UNDER THESE INSTRUCTIONS, SET OUT
BELOW, THE JURY COULD HAVE DETERMINED FROM THE EVIDENCE THAT THE
HOMICIDE WAS NOT THE RESULT OF PREMEDITATION AND DELIBERATION.  FN3 

ALTHOUGH NO OBJECTION AS TO THE FORM OF THESE INSTRUCTIONS IS URGED
HERE BY COUNSEL FOR PETITIONER, THIS COURT IN A CRIMINAL CASE MAY
NOTICE MATERIAL ERROR WITHIN ITS POWER TO CORRECT, EVEN THOUGH THAT
ERROR IS NOT SPECIFICALLY CHALLENGED, AND CERTAINLY SHOULD DO SO, EVEN
IN CASES FROM THE DISTRICT OF COLUMBIA, WHERE LIFE IS AT STAKE. 
BRASFIELD V. UNITED STATES, 272 U.S. 448; COMPARE RULES 54(A)(1), 59,
52(B), RULES OF CRIMINAL PROCEDURE.  IT IS SUGGESTED BY A DISSENT THAT
THESE INSTRUCTIONS, JUST QUOTED IN NOTE 3, DID NOT BRING "SHARPLY AND
VIVIDLY TO THE JURY'S MIND" THE ISSUE OF PREMEDITATION; THAT THEY
"CONSISTED OF THREADBARE GENERALITIES, A JUMBLE OF EMPTY
ABSTRACTIONS."  WE THINK THE CONTENTION ADVANCED IS THAT THE DISTRICT
JUDGE SHOULD HAVE SPECIFICALLY REFERRED TO THE WORDS OF INSULT OR HAVE
ELABORATED UPON THE DETAILS OF THE EVIDENCE IN HIS CHARGE WITH RESPECT
TO PREMEDITATION.  WITH SUCH A REQUIREMENT FOR INSTRUCTIONS WE DO NOT
AGREE.  THE EVIDENCE FURNISHES THE FACTUAL BASIS FOR A JURY'S
CONCLUSION AS TO GUILT AND ITS DEGREE, GUIDED BY THE INSTRUCTIONS OF
THE COURT AS TO THE LAW.  FN4  PREMEDITATION AND DELIBERATION WERE
DEFINED CAREFULLY BY THE INSTRUCTIONS.  THE CONTENTION OF THE ACCUSED
THAT THERE WAS NO DELIBERATION OR PREMEDITATION WAS CALLED DISTINCTLY
TO THE JURY'S ATTENTION.  THE NECESSARY TIME ELEMENT WAS EMPHASIZED AND
THE JURY WAS TOLD THAT PREMEDITATION REQUIRED A PRECONCEIVED DESIGN TO
KILL, A "SECOND THOUGHT."  WITH THE EVIDENCE AND THE LAW BEFORE THEM
THE JURY REACHED ITS VERDICT.  THE INSTRUCTIONS, WE THINK, WERE CLEAR,
DEFINITE, UNDERSTANDABLE AND APPLICABLE TO THE FACTS DEVELOPED BY THE
TESTIMONY.  WE SEE NO ERROR IN THEM. 

THE ERROR CLAIMED BY THE PETITIONER IS LIMITED TO THE REFUSAL OF ONE
INSTRUCTION.  THE JURY MIGHT NOT HAVE REACHED THE RESULT IT DID IF THE
THEORY OF PARTIAL RESPONSIBILITY N5 FOR HIS ACTS WHICH THE PETITIONER
URGES HAD BEEN SUBMITTED.  PETITIONER SOUGHT AN INSTRUCTION FROM THE
TRIAL COURT WHICH WOULD PERMIT THE JURY TO WEIGH THE EVIDENCE OF HIS
MENTAL DEFICIENCIES, WHICH WERE SHORT OF INSANITY IN THE LEGAL SENSE,
IN DETERMINING THE FACT OF AND THE ACCUSED'S CAPACITY FOR PREMEDITATION
AND DELIBERATION.  FN6  THE APPELLATE COURT APPROVED THE REFUSAL UPON
THE ALTERNATE GROUND THAT AN ACCUSED IS NOT ENTITLED TO AN INSTRUCTION
UPON PETITIONER'S THEORY.  FN7  THIS HAS LONG BEEN THE LAW OF THE
DISTRICT OF COLUMBIA.  FN8  THIS IS MADE ABUNDANTLY CLEAR BY UNITED
STATES V. LEE, 4 MACKEY 489, 495.  THIS ALSO WAS A MURDER CASE IN WHICH
THERE WAS EVIDENCE OF MENTAL DEFECTS WHICH DID NOT AMOUNT TO INSANITY. 
AN INSTRUCTION WAS ASKED AND DENIED IN THE LANGUAGE COPIED IN THE
MARGIN.  FN9 

IT IS SUGGESTED THAT THE LEE CASE WAS DECIDED WHEN MURDER UNDER THE
DISTRICT LAW WAS NOT DIVIDED INTO DEGREES AND THAT THEREFORE IT WAS NOT
PROPER TO INSTRUCT AS TO THE ACCUSED'S MENTAL CAPACITY TO PREMEDITATE
AND DELIBERATE WHILE NOW IT WOULD BE.  WE DO NOT AGREE.  THE SEPARATION
OF THE CRIME OF MURDER INTO THE PRESENT TWO DEGREES BY THE CODE OF LAW
FOR THE DISTRICT OF COLUMBIA, MARCH 3, 1901, 31 STAT. 1189, 1321, IS
NOT SIGNIFICANT IN ANALYZING THE NECESSITY FOR THE PROPOSED SUBMISSION
OF THE EVIDENCE CONCERNING PETITIONER'S MENTAL AND EMOTIONAL
CHARACTERISTICS TO THE JURY BY SPECIFIC INSTRUCTION.  THE REASON FOR
THE CHANGE, DOUBTLESS, LAY IN THE WIDE RANGE OF ATROCITY WITH WHICH THE
CRIME OF MURDER MIGHT BE COMMITTED SO THAT CONGRESS DEEMED IT DESIRABLE
TO ESTABLISH GRADES OF PUNISHMENT.  CF. DAVIS V. UTAH TERRITORY, 151
U.S. 262, 267, 270.  HOMICIDE, AT COMMON LAW, THE RULES OF WHICH WERE
APPLICABLE IN THE DISTRICT OF COLUMBIA, HAD DEGREES.  MURDER WAS "WITH
MALICE AFORETHOUGHT, EITHER EXPRESS OR IMPLIED."  BLACKSTONE, BOOK IV
(LEWIS ED., 1902), P. 195; SEE HILL V. UNITED STATES, 22 APP. D.C. 395,
401; HAMILTON V. UNITED STATES, 26 APP. D.C. 382, 386-91; BURGE V.
UNITED STATES, 26 APP. D.C. 524, 527-30.  MANSLAUGHTER WAS UNLAWFUL
HOMICIDE WITHOUT MALICE.  BLACKSTONE, BOOK IV (LEWIS ED., 1902), P.
191.  AS CAPACITY OF A DEFENDANT TO HAVE MALICE WOULD DEPEND UPON THE
SAME KIND OF EVIDENCE AND INSTRUCTION WHICH IS URGED HERE,  FN10  IT
CANNOT PROPERLY BE SAID THAT THE SEPARATION OF MURDER INTO DEGREES
INTRODUCED A NEW SITUATION INTO THE LAW OF THE DISTRICT OF COLUMBIA. 
FN11  AS SHOWN BY THE ACTION OF THE DISTRICT OF COLUMBIA COURTS IN THIS
CASE AND THE OTHER DISTRICT CASES CITED IN THIS AND THE PRECEDING
PARAGRAPH, WE THINK IT IS THE ESTABLISHED LAW IN THE DISTRICT THAT AN
ACCUSED IN A CRIMINAL TRIAL IS NOT ENTITLED TO AN INSTRUCTION BASED
UPON EVIDENCE OF MENTAL WEAKNESS, SHORT OF LEGAL INSANITY, WHICH WOULD
REDUCE HIS CRIME FROM FIRST TO SECOND DEGREE MURDER. 

PETITIONER URGES FORCEFULLY THAT MENTAL DEFICIENCY WHICH DOES NOT
SHOW LEGAL IRRESPONSIBILITY SHOULD BE DECLARED BY THIS COURT TO BE A
RELEVANT FACTOR IN DETERMINING WHETHER AN ACCUSED IS GUILTY OF MURDER
IN THE FIRST OR SECOND DEGREE, UPON WHICH AN INSTRUCTION SHOULD BE
GIVEN, AS REQUESTED.  IT IS POINTED OUT THAT THE COURTS OF CERTAIN
STATES HAVE ADOPTED THIS THEORY.  OTHERS HAVE REJECTED IT.  FN12  IT IS
URGED, ALSO, THAT SINCE EVIDENCE OF INTOXICATION TO A STATE WHERE ONE
GUILTY OF THE CRIME OF MURDER MAY NOT BE CAPABLE OF DELIBERATE
PREMEDITATION REQUIRES IN THE DISTRICT OF COLUMBIA AN INSTRUCTION TO
THAT EFFECT (MCAFFEE V. UNITED STATES, 72 APP. D.C. 60, 111 F.2D 199,
205 R.C.), COURTS FROM THIS MUST DEDUCE THAT DISEASE AND CONGENITAL
DEFECTS, FOR WHICH THE ACCUSED MAY NOT BE RESPONSIBLE, MAY ALSO REDUCE
THE CRIME OF MURDER FROM FIRST TO SECOND DEGREE.  THIS COURT REVERSED
THE SUPREME COURT OF THE TERRITORY OF UTAH FOR FAILURE TO GIVE A
PARTIAL RESPONSIBILITY CHARGE UPON EVIDENCE OF DRUNKENNESS IN LANGUAGE
WHICH HAS BEEN SAID TO BE BROAD ENOUGH TO COVER MENTAL DEFICIENCY. 
HOPT V. PEOPLE, 104 U.S. 631, 634.  FN13  IT SHOULD BE NOTED, HOWEVER,
THAT THE TERRITORY OF UTAH HAD A STATUTE SPECIFICALLY ESTABLISHING SUCH
A RULE.  FN14 

NO ONE DOUBTS THAT THERE ARE MORE POSSIBLE CLASSIFICATIONS OF
MENTALITY THAN THE SANE AND THE INSANE.  WHITE, INSANITY AND THE
CRIMINAL LAW 89.  CRIMINOLOGISTS AND PSYCHOLOGISTS HAVE WEIGHED THE
ADVANTAGES AND DISADVANTAGES OF THE ADOPTION OF THE THEORY OF PARTIAL
RESPONSIBILITY AS A BASIS OF THE JURY'S DETERMINATION OF THE DEGREE OF
CRIME OF WHICH A MENTALLY DEFICIENT DEFENDANT MAY BE GUILTY.  FN15
CONGRESS TOOK A FORWARD STEP IN DEFINING THE DEGREES OF MURDER SO THAT
ONLY THOSE GUILTY OF DELIBERATE AND PREMEDITATED MALICE COULD BE
CONVICTED OF THE FIRST DEGREE.  IT MAY BE THAT PSYCHIATRY HAS NOW
REACHED A POSITION OF CERTAINTY IN ITS DIAGNOSIS AND PROGNOSIS WHICH
WILL INDUCE CONGRESS TO ENACT THE RULE OF RESPONSIBILITY FOR CRIME FOR
WHICH PETITIONER CONTENDS.  FOR THIS COURT TO FORCE THE DISTRICT OF
COLUMBIA TO ADOPT SUCH A REQUIREMENT FOR CRIMINAL TRIALS WOULD INVOLVE
A FUNDAMENTAL CHANGE IN THE COMMON LAW THEORY OF RESPONSIBILITY.    WE
EXPRESS NO OPINION UPON WHETHER THE THEORY FOR WHICH PETITIONER
CONTENDS SHOULD OR SHOULD NOT BE MADE THE LAW OF THE DISTRICT OF
COLUMBIA.  SUCH A RADICAL DEPARTURE FROM COMMON LAW CONCEPTS IS MORE
PROPERLY A SUBJECT FOR THE EXERCISE OF LEGISLATIVE POWER OR AT LEAST
FOR THE DISCRETION OF THE COURTS OF THE DISTRICT.  THE ADMINISTRATION
OF CRIMINAL LAW IN MATTERS NOT AFFECTED BY CONSTITUTIONAL LIMITATIONS
OR A GENERAL FEDERAL LAW IS A MATTER PECULIARLY OF LOCAL CONCERN. 
COMPARE MCNABB V. UNITED STATES, 318 U.S. 332, WITH ASHCRAFT V.
TENNESSEE, 322 U.S. 143, 156.  THIS COURT HAS IN A LESS IMPORTANT
MATTER UNDERTAKEN TO ADJUST BY DECISION AN OUTMODED RULE OF THE COMMON
LAW TO MODERN CONDITIONS.  BUT WHEN THAT STEP WAS TAKEN, IT WAS
DECLARED THAT "EXPERIENCE HAS CLEARLY DEMONSTRATED THE FALLACY OR
UNWISDOM OF THE OLD RULE."  FUNK V. UNITED STATES, 290 U.S. 371, 381. 
SEE WEILER V. UNITED STATES, 323 U.S. 606, 609. 

MATTERS RELATING TO LAW ENFORCEMENT IN THE DISTRICT ARE ENTRUSTED TO
THE COURTS OF THE DISTRICT.  OUR POLICY IS NOT TO INTERFERE WITH THE
LOCAL RULES OF LAW WHICH THEY FASHION, SAVE IN EXCEPTIONAL SITUATIONS
WHERE EGREGIOUS ERROR HAS BEEN COMMITTED. 

WHERE THE CHOICE OF THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA
IN LOCAL MATTERS BETWEEN CONFLICTING LEGAL CONCLUSIONS SEEMS NICELY
BALANCED, WE DO NOT INTERFERE.  DISTRICT OF COLUMBIA V. PACE, 320 U.S.
698, 702; BUSBY V. ELECTRIC UTILITIES UNION, 323 U.S. 72, 74-5.  THE
POLICY OF DEFERRING TO THE DISTRICT'S COURTS ON LOCAL LAW MATTERS IS
REINFORCED HERE BY THE FACT THAT THE LOCAL LAW NOW CHALLENGED IS LONG
ESTABLISHED AND DEEPLY ROOTED IN THE DISTRICT.  AFFIRMED. 

FN1  THE CODE OF LAW FOR THE DISTRICT OF COLUMBIA (1940 ED.) 
PROVIDES AS FOLLOWS: 

TITLE 22, SEC. 2401, "WHOEVER, BEING OF SOUND MEMORY AND DISCRETION,
KILLS ANOTHER PURPOSELY, EITHER OF DELIBERATE AND PREMEDITATED MALICE
OR BY MEANS OF POISON, OR IN PERPETRATING OR ATTEMPTING TO PERPETRATE
ANY OFFENSE PUNISHABLE BY IMPRISONMENT IN THE PENITENTIARY, OR WITHOUT
PURPOSE SO TO DO KILLS ANOTHER IN PERPETRATING OR IN ATTEMPTING TO
PERPETRATE ANY ARSON, AS DEFINED IN SECTION 22-401 OR 22-402 OF THIS
CODE, RAPE, MAYHEM, ROBBERY, OR KIDNAPPING, OR IN PERPETRATING OR IN
ATTEMPTING TO PERPETRATE ANY HOUSEBREAKING WHILE ARMED WITH OR USING A
DANGEROUS WEAPON, IS GUILTY OF MURDER IN THE FIRST DEGREE." 

TITLE 22, SEC. 2403, "WHOEVER WITH MALICE AFORETHOUGHT, EXCEPT AS
PROVIDED IN SECTIONS 22-2401, 22-2402, KILLS ANOTHER, IS GUILTY OF
MURDER IN THE SECOND DEGREE." 

TITLE 22, SEC. 2404, "THE PUNISHMENT OF MURDER IN THE FIRST DEGREE
SHALL BE DEATH BY ELECTROCUTION.  THE PUNISHMENT OF MURDER IN THE
SECOND DEGREE SHALL BE IMPRISONMENT FOR LIFE, OR FOR NOT LESS THAN
TWENTY YEARS." 

FN2  "THE ONLY CONCLUSION THAT SEEMS WARRANTABLE IS THAT, AT SOME
TIME OR OTHER AND BY SOME REPUTABLE AUTHORITY, THE TERM PSYCHOPATHIC
PERSONALITY HAS BEEN USED TO DESIGNATE EVERY CONCEIVABLE TYPE OF
ABNORMAL CHARACTER."  CURRAN AND MALLINSON, PSYCHOPATHIC PERSONALITY
(1944), 90 J. MENT.  SCI.  278. 

FN3  THESE INSTRUCTIONS WERE GIVEN: 

INSANITY.  "IN BEHALF OF THE DEFENDANT, IT IS CONTENDED THAT HE WAS
INSANE, AND THEREFORE NOT LEGALLY RESPONSIBLE, HENCE SHOULD BE
ACQUITTED BY REASON OF INSANITY. 

"IT IS FURTHER CONTENDED THAT EVEN IF SANE AND RESPONSIBLE, THERE WAS
NO DELIBERATE INTENT TO KILL, NOR IN FACT ANY ACTUAL INTENT TO KILL. 
THEREFORE IF NOT GUILTY BY REASON OF INSANITY, THE DEFENDANT AT MOST IS
GUILTY ONLY OF SECOND DEGREE MURDER OR MANSLAUGHTER, ACCORDING AS YOU
MAY FIND HE ACTED WITH OR WITHOUT MALICE. 

     .         .         .         .         . 

"INSANITY, ACCORDING TO THE CRIMINAL LAW, IS A DISEASE OR DEFECT OF
THE MIND WHICH RENDERS ONE INCAPABLE TO UNDERSTAND THE NATURE AND
QUALITY OF HIS ACT, TO KNOW THAT IT IS WRONG, TO REFRAIN FROM DOING THE
WRONGFUL ACT.  THERE MUST BE ACTUAL DISEASE OR DEFECT OF THE MENTAL
FACULTIES, SO FAR IMPAIRING THE REASON OR WILL THAT THIS TEST OF SANITY
CANNOT BE MET, BEFORE ONE IS RELIEVED OF HIS CRIMINAL ACT. 

"THE FATAL ACTIONS MUST BE TRACEABLE BACK TO A DISEASED OR DERANGED
MENTALITY." 

IRRESISTIBLE IMPULSE.  "HERE IT IS CONTENDED THAT ALTHOUGH THE
DEFENDANT MAY HAVE UNDERSTOOD WHAT HE WAS DOING WHEN HE ASSAULTED MISS
REARDON, AND MAY HAVE KNOWN IT WAS WRONG, YET HE WAS IMPELLED BY AN
IRRESISTIBLE IMPULSE TO DO THE VIOLENT ACTS WHICH CAUSED HER DEATH. 

"IF THE DEFENDANT WAS SUFFERING FROM A DISEASED CONDITION OF HIS
MENTAL FACULTIES, WHICH SO FAR DESTROYED HIS WILL, THE GOVERNING POWER
OF THE MIND, THAT HIS ACTIONS WERE NOT SUBJECT TO THE WILL, BUT BEYOND
ITS CONTROL, THEN IN LEGAL CONTEMPLATION, HE WAS INSANE AND NOT
RESPONSIBLE, THOUGH HE MAY HAVE UNDERSTOOD THE NATURE OF THOSE ACTS,
AND HAVE BEEN CONSCIOUS OF THEIR WRONG. 

"IF, AS I HAVE SAID, THERE WAS SUCH LACK OF WILLPOWER AND CONTROL IT
MUST HAVE BEEN THE RESULT OF A DISEASE OR DISORDER OF THE MENTAL
FACULTIES.  MERE LOSS OF MORAL RESTRAINTS LEADING TO A SURRENDER TO
CRIMINAL THOUGHTS AND PASSIONS IS NOT ENOUGH." 

MALICE; DELIBERATION; PREMEDITATION.  "I HAVE STATED THAT THE
INDICTMENT PRESENTS WITHIN ITS TERMS THE THREE DEGREES OF UNLAWFUL
HOMICIDE - MURDER IN THE FIRST DEGREE, MURDER IN THE SECOND DEGREE, AND
MANSLAUGHTER. 

"I SHALL EXPLAIN THEM IN THAT ORDER. 

"MURDER IN THE FIRST DEGREE IS THE KILLING OF A HUMAN BEING PURPOSELY
AND WITH DELIBERATE AND PREMEDITATED MALICE.  THE CRIME INVOLVES THESE
ELEMENTS: 

"FIRST, THE FATAL ACT PURPOSELY DONE.  OF THAT, NOTHING MORE NEED BE
SAID. 

"SECOND, MALICE. 

"THIRD, PREMEDITATION. 

"FOURTH, DELIBERATION. 

"ALL THESE ARE ELEMENTS WHICH GO TO CONSTITUTE THE CRIME OF MURDER IN
THE FIRST DEGREE.  THEREFORE, EACH AND ALL MUST BE ESTABLISHED BY THE
EVIDENCE BEYOND A REASONABLE DOUBT. 

"MALICE IS A BASIC ELEMENT OF MURDER IN BOTH THE FIRST AND THE SECOND
DEGREES. 

"IN COMMON PARLANCE, THE WORD SIGNIFIES FEELINGS OF ANGER, HATRED, OR
ILLWILL.  SUCH FEELINGS, MAY, OF COURSE, ACTUATE THE KILLING OF A HUMAN
BEING, AND OFTEN DO. 

"HOWEVER, THE LAW HAS GIVEN TO THE TERM 'MALICE' A SPECIAL MEANING. 
IT IS THE INTENTIONAL DOING OF A WRONGFUL ACT TO THE INJURY OF ANOTHER
UNDER CIRCUMSTANCES WHICH DO NOT LEGALLY JUSTIFY OR PALLIATE THE ACT. 

"AS APPLIED TO THE CRIME OF MURDER, MALICE IS THE INTENTIONAL
STRIKING OF A DEADLY BLOW IN EXECUTION OF AN EVIL PURPOSE SPRINGING
FROM A HEART REGARDLESS OF SOCIAL DUTY AND FATALLY BENT ON MISCHIEF. 

"THEN, THERE IS THE ELEMENT OF PREMEDITATION.  THAT IS, GIVING
THOUGHT, BEFORE ACTING, TO THE IDEA OF TAKING A HUMAN LIFE AND REACHING
A DEFINITE DECISION TO KILL.  IN SHORT, PREMEDITATION IS THE FORMATION
OF A SPECIFIC INTENT TO KILL. 

"DELIBERATION, THAT TERM OF WHICH YOU HAVE HEARD MUCH IN THE
ARGUMENTS AND ONE OF THE ELEMENTS OF MURDER IN THE FIRST DEGREE, IS
CONSIDERATION AND REFLECTION UPON THE PRECONCEIVED DESIGN TO KILL;
TURNING IT OVER IN THE MIND; GIVING IT SECOND THOUGHT. 

"ALTHOUGH FORMATION OF A DESIGN TO KILL MAY BE INSTANTANEOUS, AS
QUICK AS THOUGHT ITSELF, THE MENTAL PROCESS OF DELIBERATING UPON SUCH A
DESIGN DOES REQUIRE THAT AN APPRECIABLE TIME ELAPSE BETWEEN FORMATION
OF THE DESIGN AND THE FATAL ACT WITHIN WHICH THERE IS, IN FACT,
DELIBERATION. 

"THE LAW PRESCRIBES NO PARTICULAR PERIOD OF TIME.  IT NECESSARILY
VARIES ACCORDING TO THE PECULIAR CIRCUMSTANCES OF EACH CASE. 
CONSIDERATION OF A MATTER MAY CONTINUE OVER A PROLONGED PERIOD - HOURS,
DAYS, OR EVEN LONGER.  THEN AGAIN, IT MAY COVER BUT A BRIEF SPAN OF
MINUTES.  IF ONE FORMING AN INTENT TO KILL DOES NOT ACT INSTANTLY, BUT
PAUSES AND ACTUALLY GIVES SECOND THOUGHT AND CONSIDERATION TO THE
INTENDED ACT, HE HAS, IN FACT DELIBERATED.  IT IS THE FACT OF
DELIBERATION THAT IS IMPORTANT, RATHER THAN THE LENGTH OF TIME IT MAY
HAVE CONTINUED." 

FN4  STILSON V. UNITED STATES, 250 U.S. 583, 588; STARR V. UNITED
STATES, 153 U.S. 614, 625; ARWOOD V. UNITED STATES, 134 F.2D 1007,
1011. 

FN5  THE PHRASE IS USED HEREIN TO INDICATE RESPONSIBILITY FOR A
LESSER GRADE OF OFFENSE.  SEE GLUECK, MENTAL DISORDER AND THE CRIMINAL
LAW (1925) 310, N. 1. 

FN6  THE INSTRUCTION REQUESTED READS AS FOLLOWS: 

"THE JURY IS INSTRUCTED THAT IN CONSIDERING THE QUESTION OF INTENT OR
LACK OF INTENT TO KILL ON THE PART OF THE DEFENDANT, THE QUESTION OF
PREMEDITATION OR NO PREMEDITATION, DELIBERATION OR NO DELIBERATION,
WHETHER OR NOT THE DEFENDANT AT THE TIME OF THE FATAL ACTS WAS OF SOUND
MEMORY AND DISCRETION, IT SHOULD CONSIDER THE ENTIRE PERSONALITY OF THE
DEFENDANT, HIS MENTAL, NERVOUS, EMOTIONAL AND PHYSICAL CHARACTERISTICS
AS DEVELOPED BY THE EVIDENCE IN THE CASE." 

OUR CONCLUSION DOES NOT REQUIRE THAT WE PASS UPON WHETHER THE
INSTRUCTION WAS CORRECT IF PETITIONER'S THEORY IS SOUND, OR WHETHER IF
INCORRECT, THE JUDGE SHOULD HAVE RECAST THE INSTRUCTION IN PROPER
FORM.  SEE THE CASE BELOW, 80 U.S. APP. D.C. 96, 97, 149 F.2D 28, 29
R.C. COMPARE FREIHAGE V. UNITED STATES, 56 F.2D 127, 133, WITH GEORGE
V. UNITED STATES, 75 U.S. APP. D.C. 197, 125 F.2D 559, 563. 

FN7  FISHER V. UNITED STATES, 80 U.S. APP. D.C. 96, 97, 149 F.2D 28,
29 L.C. 

THE COURT OF APPEALS SPOKE OF AN ACQUITTAL UNDER THE PROPOSED
INSTRUCTION.  THE OTHER LANGUAGE OF THE OPINION AND THE REFUSAL OF THE
PETITION FOR REHEARING, WHICH POINTED OUT THE MISUSE OF THE WORD, SHOWS
CLEARLY THAT A REDUCTION IN DEGREE WAS MEANT, NOT AN ACQUITTAL. 

FN8  CF. GUITEAU'S CASE, 10 F. 161, 168, 182; BOLDEN V. UNITED
STATES, 63 APP. D.C. 45, 69 F.2D 121; OWENS V. UNITED STATES, 66 APP.
D.C. 104, 85 F.2D 270, 272. 

FN9  4 MACKEY 495-96: 

THE INSTRUCTION REQUESTED WAS:  "IF THE JURY ARE NOT SATISFIED FROM
THE EVIDENCE THAT THE DEFENDANT, AT THE TIME HE COMMITTED THE ACT, WAS
SO MENTALLY UNSOUND AS TO RENDER HIM INCAPABLE OF JUDGING BETWEEN RIGHT
AND WRONG; YET IF THE JURY FIND FROM THE EVIDENCE THAT THERE WAS SUCH A
DEGREE OF MENTAL UNSOUNDNESS EXISTING AT THE TIME OF THE HOMICIDE AS TO
RENDER THE DEFENDANT INCAPABLE OF PREMEDITATION AND OF FORMING SUCH AN
INTENT AS THE JURY BELIEVE THE CIRCUMSTANCES OF THIS CASE WOULD
REASONABLY IMPUTE TO A MAN OF SOUND MIND, THEY MAY CONSIDER SUCH DEGREE
OF MENTAL UNSOUNDNESS IN DETERMINING THE QUESTION WHETHER THE ACT WAS
MURDER OR MANSLAUGHTER." 

THE COURT SAID:  "IT RESTS UPON THE IDEA THAT THERE IS A GRADE OF
INSANITY NOT SUFFICIENT TO ACQUIT THE PARTY OF THE CRIME OF
MANSLAUGHTER AND YET SUFFICIENT TO ACQUIT HIM OF THE CRIME OF MURDER. 

"THE LAW DOES NOT RECOGNIZE ANY SUCH DISTINCTION AS THAT IN THE FORMS
OF INSANITY.  THE RULE OF LAW IS VERY PLAIN THAT IN ORDER THAT THE PLEA
OF INSANITY SHALL PREVAIL, THERE MUST HAVE BEEN THAT MENTAL CONDITION
OF THE PARTY WHICH DISABLED HIM FROM DISTINGUISHING BETWEEN RIGHT AND
WRONG IN RESPECT OF THE ACT COMMITTED. 

"NOW IF THE PRISONER WAS SO FAR CAPABLE OF DISTINGUISHING BETWEEN
RIGHT AND WRONG AS TO BE GUILTY OF THE CRIME OF MANSLAUGHTER, HE SURELY
WAS CAPABLE OF DISTINGUISHING BETWEEN RIGHT AND WRONG IN RESPECT OF THE
CRIME OF MURDER OF THE IDENTICAL PARTY.  THERE CAN BE NO RECOGNITION OF
THE DOCTRINE THAT A MAN IS INCAPABLE OF DISTINGUISHING BETWEEN RIGHT
AND WRONG SO AS TO DETERMINE THAT THE CASE IS NOT A CASE OF MURDER, AND
YET CAPABLE OF DISTINGUISHING BETWEEN RIGHT AND WRONG SO AS TO BE
GUILTY OF MANSLAUGHTER.  THERE IS NO SUCH DOCTRINE, AND NOTHING IN THE
BOOKS THAT FAVORS ANY SUCH IDEA.  THE PRAYER THEREFORE IS UNSOUND IN
ALL RESPECTS, AND EVEN IF IT HAD BEEN SOUND, NOT BEING SUPPORTED BY
EVIDENCE, THE COURT BELOW WAS ENTIRELY JUSTIFIED IN REJECTING IT." 

FN10  SEE HART V. UNITED STATES, 76 U.S. APP. D.C. 193, 130 F.2D 456,
458; BISHOP V. UNITED STATES, 71 APP. D.C. 132, 107 F.2D 297, 302-3;
MCHARGUE V. COMMONWEALTH, 231 KY. 82, 21 S.W.2D 115; STATE V. EATON,
154 S.W.2D 767(MO.). 

FN11  THE REFERENCE TO THE ESTABLISHMENT OF DEGREES OF MURDER IN HOPT
V. PEOPLE, 104 U.S. 631, 634, MAY INDICATE A DIFFERENT POINT OF VIEW. 
THE COURT WAS THERE CONSIDERING INTOXICATION UNDER A STATUTORY
REQUIREMENT THAT THE INTOXICATION SHOULD BE TAKEN INTO CONSIDERATION BY
THE JURY IN DETERMINING THE DEGREE OF THE OFFENSE. 

FN12  WE ARE INDEBTED TO THE RESPONDENT'S BRIEF FOR THE COLLECTION OF
CASES.  THOSE ACCEPTING THE PETITIONER'S THEORY ARE:  ANDERSEN V.
STATE, 43 CONN. 514, 526(1876); STATE V. JOHNSON, 40 CONN. 136, 143
44(1873); FISHER V. PEOPLE, 23 ILL. 283, 295(1860); DONAHUE V. STATE,
165 IND. 148, 156, 74 N.E. 996(1905); ASZMAN V. STATE, 123 IND. 347,
356, 24 N.E. 123(1890); ROGERS V. COMMONWEALTH, 96 KY. 24, 28, 27 S.W.
813(1894); MANGRUM V. COMMONWEALTH, 19 KY. LAW REP. 94, 39 S.W.
703(1897); COMMONWEALTH V. TRIPPI, 268 MASS. 227, 231, 167 N.E.
354(1929); STATE V. CLOSE, 106 N.J.L. 321, 324, 148 A. 764(1930); STATE
V. SCHILLING, 95 N.J.L. 145, 148, 112 A. 400(1920); PEOPLE V. MORAN,
249 N.Y. 179, 180, 163 N.E. 553(1928); JONES V. COMMONWEALTH, 75 PA.
403, 408, 410(1874); STATE V. GREEN, 78 UTAH 580, 602, 6 P.2D
177(1931); STATE V. ANSELMO, 46 UTAH 137, 145, 157, 148 P. 1071(1915);
DEJARNETTE V. COMMONWEALTH, 75 VA. 867, 880-81(1881); HEMPTON V. STATE,
111 WISC.  127, 135, 86 N.W. 596(1901). 

THOSE REJECTING IT ARE:  UNITED STATES V. LEE, 15 D.C. (4 MACKEY)
489, 495-96(1886); FOSTER V. STATE, 37 ARIZ. 281, 289-90, 294 P.
268(1930); BELL V. STATE, 120 ARK. 530, 557-58, 180 S.W. 186(1915);
PEOPLE V. FRENCH, 12 CAL.2D 720, 738, 87 P.2D 1014(1939); PEOPLE V.
CORDOVA, 14 CAL.2D 308, 311-12, 94 P.2D 40(1939); PEOPLE V. TROCHE, 206
CAL. 35, 47, 273 P. 767(1928); STATE V. VAN VLACK, 57 IDAHO 316, 360
67, 65 P.2D 736(1937); SAGE V. STATE, 91 IND. 141, 144-45(1883);
SPENCER V. STATE, 69 MD. 28, 41-43, 13 A. 809(1888); COMMONWEALTH V.
COOPER, 219 MASS. 1, 5, 106 N.E. 545(1914); STATE V. HOLLOWAY, 156 MO.
222, 231, 56 S.W. 734(1900); STATE V. RODIA, 132 N.J.L. 199, 39 A.2D
484(1944); STATE V. NOEL, 102 N.J.L. 659, 676-77, 133 A. 274(1926);
STATE V. JAMES, 96 N.J.L. 132, 149-51, 114 A. 553(1921); STATE V.
MAIONI, 78 N.J.L. 339, 74 A. 526(1909); SINDRAM V. PEOPLE, 88 N.Y. 196,
200-201(1882); COMMONWEALTH V. BARNER, 199 PA. 335, 342, 49 A.
60(1901); COMMONWEALTH V. HOLLINGER, 190 PA. 155, 160, 42 A. 548(1899);
COMMONWEALTH V. WIREBACK, 190 PA. 138, 151-52, 42 A. 542(1899); JACOBS
V. COMMONWEALTH, 121 PA. 586, 592-93, 15 A. 465(1888); COMMONWEALTH V.
SCOTT, 14 PA. D. & C. REP. 191(1930); WITTY V. STATE, 75 TEX. CR. REP.
440, 457, 171 S.W. 229(1914); HOGUE V. STATE, 65 TEX. CR. REP. 539,
542, 146 S.W. 905(1912); STATE V. SCHNEIDER, 158 WASH. 504, 510-11, 291
P. 1093(1930).    FN13  104 U.S. AT 634:  "BUT WHEN A STATUTE
ESTABLISHING DIFFERENT DEGREES OF MURDER REQUIRES DELIBERATE
PREMEDITATION IN ORDER TO CONSTITUTE MURDER IN THE FIRST DEGREE, THE
QUESTION WHETHER THE ACCUSED IS IN SUCH A CONDITION OF MIND, BY REASON
OF DRUNKENNESS OR OTHERWISE, AS TO BE CAPABLE OF DELIBERATE
PREMEDITATION, NECESSARILY BECOMES A MATERIAL SUBJECT OF CONSIDERATION
BY THE JURY." 

SEE EDWIN R. KEEDY, INSANITY AND CRIMINAL RESPONSIBILITY, 30 HARV. L.
REV. 535 AT 552. 

THE CASES CITED BY THIS COURT TO SUPPORT THIS STATEMENT ARE ALL
INSTANCES OF INTOXICATION.  SINCE DRUNKENNESS ALONE IS SPECIFICALLY
MENTIONED, THE "OR OTHERWISE" MAY REFER TO VARIOUS STAGES OF
INTOXICATION. 

FN14  SEE 104 U.S. 631 AT 634. 

FN15  WHARTON, CRIMINAL LAW (12TH ED.), VOL. 1, SEC. 64; WEIHOFEN,
INSANITY AS A DEFENSE IN CRIMINAL LAW (1933), PP. 100-103; WEIHOFEN,
PARTIAL INSANITY AND CRIMINAL INTENT, 24 ILL. LAW REV. 505(1930);
KEEDY, INSANITY AND CRIMINAL RESPONSIBILITY, 30 HARV. LAW REV. 535, 552
554(1917); MENTAL ABNORMALITY AND CRIME, ENGLISH STUDIES IN CRIMINAL
SCIENCE (1944), PP. 61-63; GLUECK, MENTAL DISORDER AND THE CRIMINAL LAW
(1925), PP. 199-208; HALL, MENTAL DISEASE AND CRIMINAL RESPONSIBILITY,
45 COL. LAW REV. 677(1945). 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

A SHOCKING CRIME PUTS LAW TO ITS SEVEREST TEST.  LAW TRIUMPHS OVER
NATURAL IMPULSES AROUSED BY SUCH A CRIME ONLY IF GUILT BE ASCERTAINED
BY DUE REGARD FOR THOSE INDISPENSABLE SAFEGUARDS WHICH OUR CIVILIZATION
HAS EVOLVED FOR THE ASCERTAINMENT OF GUILT.  IT IS NOT ENOUGH THAT A
TRIAL GOES THROUGH THE FORMS OF LAW.  ESPECIALLY WHERE LIFE IS AT STAKE
IT IS REQUISITE THAT THE TRIAL JUDGE SHOULD SO GUIDE THE JURY THAT THE
JURORS MAY BE EQUIPPED TO DETERMINE WHETHER DEATH SHOULD BE THE PENALTY
FOR CONDUCT.  OF COURSE SOCIETY MUST PROTECT ITSELF.  BUT SURELY IT IS
NOT SELF-PROTECTION FOR SOCIETY TO TAKE LIFE WITHOUT THE MOST CAREFUL
OBSERVANCE OF ITS OWN SAFEGUARDS AGAINST THE MISUSE OF CAPITAL
PUNISHMENT. 

THIS CASE HAS BEEN MUCH BECLOUDED BY LAYMEN'S VENTURES INTO
PSYCHIATRY.  WE ARE NOT NOW CALLED UPON TO DECIDE WHETHER THE
ANTIQUATED TESTS SET DOWN MORE THAN A HUNDRED YEARS AGO REGARDING
MENTAL RESPONSIBILITY FOR CRIME  FN1  ARE STILL CONTROLLING OR WHETHER
COURTS SHOULD CHOOSE FROM AMONG THE CONFLICTING PROPOSALS OF SCIENTIFIC
SPECIALISTS N2.  THIS IS NOT THE OCCASION TO DECIDE WHETHER THE ONLY
ALTERNATIVE IS BETWEEN LAW WHICH REFLECTS THE MOST ADVANCED SCIENTIFIC
TESTS AND LAW REMAINING A LEADEN-FOOTED LAGGARD.  THE CASE TURNS ON A
MUCH SIMPLER AND WHOLLY CONVENTIONAL ISSUE.  FOR THE REAL QUESTION, AS
I SEE IT, IS WHETHER IN VIEW OF THE ACT OF CONGRESS DEFINING MURDER IN
THE FIRST DEGREE FOR PROSECUTIONS IN THE DISTRICT AND IN LIGHT OF THE
PARTICULAR CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT PROPERLY SENT
THE CASE TO THE JURY.  THAT IS A VERY DIFFERENT QUESTION FROM WHETHER
THE COURT'S CHARGE WAS UNIMPEACHABLE AS AN ABSTRACT STATEMENT OF LAW. 
FOR FISHER IS NOT THE NAME OF A THEORETICAL PROBLEM.  WE ARE NOT HEAR
DEALING WITH AN ABSTRACT MAN WHO KILLED AN ABSTRACT WOMAN UNDER
ABSTRACT CIRCUMSTANCES AND RECEIVED AN ABSTRACT TRIAL ON ABSTRACT
ISSUES.  MURDER CASES ARE APT TO BE PECULIARLY INDIVIDUALIZED, AND THIS
CASE HAS ITS OWN DISTINCTIVE FEATURES.  IT IS IN THE LIGHT OF THESE
THAT WE MUST DECIDE WHETHER FISHER'S DEATH SENTENCE SHOULD LEGALLY
STAND. 

ACCORDING TO THE MORE ENLIGHTENED RULE, APPELLATE COURTS MAY REVIEW
THE FACTS IN A CAPITAL CASE.  FN3  WERE SUCH THE SCOPE OF OUR REVIEW OF
DEATH SENTENCES, I SHOULD THINK IT WOULD BE HARD TO ESCAPE WHAT FOLLOWS
AS THE MOST PERSUASIVE READING OF THE RECORD. 

FISHER HAD LEARNED FROM HIS BOSS OF MISS REARDON'S COMPLAINT ABOUT
THE SLACKNESS OF HIS WORK.  ON THE FATAL MORNING, MISS REARDON TOLD
FISHER THAT HE WAS NOT DOING THE WORK FOR WHICH HE WAS BEING PAID, AND
IN THE COURSE OF HER SCOLDING CALLED HIM A "BLACK NIGGER."  THIS MADE
HIM ANGRY - NO WHITE PERSON, HE CLAIMED, HAD EVER CALLED HIM THAT - AND
HE STRUCK HER.  SHE RAN SCREAMING TOWARDS THE WINDOW IN THE BACK OF THE
ROOM.  FISHER RAN OUT OF THE ROOM AND UP THE STAIRS.  HER SCREAMING
CONTINUED.  AT THE TOP OF THE STAIRS HE SAW A PILE OF WOOD LYING BY THE
FIREPLACE.  HE SEIZED A PIECE OF WOOD, RAN DOWN THE STAIRS AND STRUCK
HER ON THE HEAD.  THE STICK BROKE AND HE SEIZED HER BY THE THROAT.  SHE
CONTINUED TO SCREAM UNTIL SHE WENT LIMP.  HE THEN DRAGGED HER TO THE
LAVATORY AND LEFT HER THERE WHILE HE WENT BACK TO CLEAN UP THE SPOTS OF
BLOOD.  SHE RECOVERED SUFFICIENTLY TO SCREAM AGAIN, AND HE RETURNED TO
THE LAVATORY AND CUT HER SLIGHTLY WITH A KNIFE HE CARRIED IN HIS
POCKET.  THE IMPORTANCE OF THE SCREAMING IS A KEY TO THE TRAGEDY.  IT
IS DIFFICULT TO DISBELIEVE FISHER'S ACCOUNT THAT HE NEVER WANTED TO
KILL MISS REARDON BUT WANTED ONLY TO STOP HER SCREAMING, WHICH UNNERVED
HIM. 

"SHE RAN OUT FROM BEHIND HER DESK, DOWN TOWARD THE BACK, SCREAMING." 

"THE SCREAMING SEEMED TO HAVE GOTTEN ON MY NERVES." 

"I WAS RUNNING ON UP THE STEPS, WITH HER ALL THE TIME SCREAMING." 

"SHE WAS STILL SCREAMING, AND I BEGAN CHOKING HER THEN." 

"I WAS JUST TRYING TO KEEP HER FROM MAKING A NOISE." 

"...  SHE STARTED HOLLERING AND I TRIED TO STOP HER FROM HOLLERING." 

"THEN I BEGAN CHOKING HER BECAUSE SHE WAS STILL HOLLERING." 

"...  I DID NOT STRIKE HER ANY MORE AFTER THE NOISE HAD CEASED." 

"...  SHE STARTED HOLLERING AGAIN." 

"SHE KEPT HOLLERING, SEEMED LIKE TO ME." 

"MY IDEA WAS JUST TRYING TO STOP HER FROM HOLLERING, IS ALL I CAN
THINK ABOUT." 

"AFTER THAT SHE STOPPED HOLLERING." 

THE NEXT DAY HE STARTED TO GO TO THE CATHEDRAL TO WORK AS USUAL.  HE
MADE TWO ATTEMPTS TO ENTER THE CATHEDRAL GROUNDS.  ABOUT THE FIRST, HE
SAID HE GOT "NERVOUS AND SHAKY, AND (HE) COULDN'T GO IN THERE."  LATER
HE "KEPT THINKING ABOUT WHAT (HE) HAD DONE TO HER.  (HE) DIDN'T KNOW
WHETHER SHE WAS DEAD OR ALIVE.  (HE) WAS AFRAID TO GO UP THERE AND TELL
THEM THAT (THEY) HAD HAD AN ARGUMENT OR A FIGHT."  WHEN APPREHENDED BY
TWO DETECTIVES, HE SAID HE "HAD SOME TROUBLE WITH THE LADY OUT AT THE
CATHEDRAL." 

THE EVIDENCE IN ITS ENTIRETY HARDLY PROVIDES A BASIS FOR A FINDING OF
PREMEDITATION.  HE STRUCK MISS REARDON WHEN SHE CALLED HIM "BLACK
NIGGER."  HE KEPT ON WHEN HER SCREAMING FRIGHTENED HIM.  HE DID NOT
KNOW HE HAD KILLED HER.  THERE IS NOT THE SLIGHTEST BASIS FOR FINDING A
MOTIVE FOR THE KILLING PRIOR TO HER USE OF THE OFFENSIVE PHRASE. 
FISHER, TO BE SURE, HAD MISS REARDON'S RING IN HIS POSSESSION.  BUT IT
CAME OFF IN HIS HAND WHILE HE WAS DRAGGING HER, AND HE PUT IT AWAY WHEN
HE REACHED HOME TO CONCEAL ITS POSSESSION FROM HIS WIFE.  HE DID NOT
RUN AWAY AND HE CLEANED UP THE BLOOD "BECAUSE (HE) DIDN'T WANT TO LEAVE
THE LIBRARY DIRTY, LEAVE AWFUL SPOTS ON THE FLOOR.  (HE) WANTED TO
CLEAN THEM UP."  HE TREATED THE SPOTS ON THE FLOOR NOT AS EVIDENCE OF
CRIME BUT AS PART OF HIS JOB TO KEEP THE LIBRARY CLEAN.  FISHER WAS
CURIOUSLY UNCONNECTED WITH THE DEED, UNAWARE OF WHAT HE HAD DONE.  HIS
WAS A VERY LOW GRADE MENTALITY, UNABLE TO REALIZE THE DIRECTION OF HIS
ACTION AND ITS MEANING.  HIS WHOLE BEHAVIOR SEEMS THAT OF A MAN OF
PRIMITIVE EMOTIONS REACTING TO THE SUDDEN STIMULUS OF INSULT AND
PROCEEDING FROM THAT POINT WITHOUT PURPOSE OR DESIGN.  PREMEDITATION
IMPLIES PURPOSE AND PURPOSE IS EXCLUDED BY INSTANTANEOUS ACTION. 
FISHER'S RESPONSE WAS AN INSTINCTIVE RESPONSE TO PROVOCATION, AND
PREMEDITATION MEANS NOTHING UNLESS IT PRECLUDES THE NOTION OF AN
INSTINCTIVE AND UNCALCULATED REACTION TO STIMULUS.  ACCORDINGLY, IF
EXISTING PRACTICE AUTHORIZED US TO REVIEW THE FACTS IN A CAPITAL CASE I
SHOULD BE COMPELLED TO FIND THAT THE INGREDIENTS OF MURDER IN THE FIRST
DEGREE WERE HERE LACKING.  I WOULD HAVE TO FIND THAT THE NECESSARY
PREMEDITATION AND DELIBERATION FOR THE INFLICTION OF A DEATH SENTENCE
WERE WANTING, AS DID THE NEW YORK COURT OF APPEALS IN A CASE OF
SINGULARLY STRIKING SIMILARITY.  PEOPLE V. CARUSO, 246 N.Y. 437, 159
N.E. 390.  IT IS SIGNIFICANT THAT THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA HAS HERETOFORE DEEMED IT WITHIN ITS DUTY TO EXAMINE THE
EVIDENCE IN ORDER TO ASCERTAIN WHETHER A FINDING OF PREMEDITATION AND
DELIBERATION WAS JUSTIFIED.  BULLOCK V. UNITED STATES, 74 APP. D.C.
220, 122 F.2D 213. 

BUT WHILE IT IS NOT NOW THIS COURT'S FUNCTION TO INTERPRET THE FACTS
INDEPENDENTLY,  FN4  THE JURY, UNDER GUIDANCE APPROPRIATE FOR A MURDER
CASE, MIGHT WELL HAVE SO INTERPRETED THEM BECAUSE THE FACTS ARE
PERSUASIVELY SO INTERPRETABLE.  IF, UNDER ADEQUATE INSTRUCTIONS, IT
COULD HAVE SO FOUND, THE HOMICIDE FALLS OUTSIDE THE REQUIREMENTS FOR A
FINDING OF MURDER IN THE FIRST DEGREE.  CONGRESS IN 1901 ENACTED A CODE
FOR THE DISTRICT IN WHICH IT JOINED THE GROWING MOVEMENT OF DIVIDING
MURDER INTO DEGREES.  FN5  CONGRESS CONFINED THE DEATH SENTENCE TO
KILLING BY PREMEDITATION; IT REQUIRED DESIGNED HOMICIDE, PREVIOUS
DELIBERATION THAT LIFE WAS TO BE TAKEN, BEFORE THE UNITED STATES WOULD
TAKE LIFE IN RETRIBUTION.  FN6  THE DIVISION OF MURDER INTO DEGREES
AROSE FROM THE STEADILY WEAKENED HOLD OF CAPITAL PUNISHMENT ON THE
CONSCIENCE OF MANKIND.  SEE CALVERT, CAPITAL PUNISHMENT IN THE
TWENTIETH CENTURY (5TH ED., 1936); REPORT FROM THE SELECT COMMITTEE OF
THE HOUSE OF COMMONS ON CAPITAL PUNISHMENT, AND MINUTES OF EVIDENCE
(1930).  THE CRIME OF MURDER WAS DIVIDED INTO TWO CLASSES, IN SOME
STATES VERY EARLY,  FN7  IN RECOGNITION OF THE FACT THAT CAPITAL
PUNISHMENT CAN SERVE AS A DETERRENT ONLY WHEN MURDER IS THE RESULT OF
PREMEDITATION AND DELIBERATION.  IT IS THIS CONSIDERATION THAT HAS LED
MOST OF THE STATES TO DIVIDE COMMON LAW MURDER INTO TWO CRIMES, AND
CONGRESS FOLLOWED THIS LEGISLATION.  SEE MICHAEL AND WECHSLER, A
RATIONALE OF THE LAW OF HOMICIDE (1937) 37 COL. L. REV. 701, 703-704;
MICHAEL AND WECHSLER, CRIMINAL LAW AND ITS ADMINISTRATION (1940) 1269
ET SEQ. 

THE BITE OF LAW IS IN ITS ENFORCEMENT.  THIS IS ESPECIALLY TRUE WHEN
CAREFUL OR INDIFFERENT JUDICIAL ADMINISTRATION HAS CONSEQUENCES SO
PROFOUND AS DOES THE APPLICATION OF LEGISLATION DIVIDING MURDER INTO
FIRST AND SECOND DEGREES - CONSEQUENCES THAT LITERALLY MAKE THE
DIFFERENCE BETWEEN LIFE AND DEATH.  THIS PLACES THE GUIDING
RESPONSIBILITY UPON THE TRIAL COURT IN NO WISE RESTRICTED BY THE COURSE
PURSUED BY THE DEFENSE.  THE PREOCCUPATION AT THE TRIAL, IN THE
TREATMENT OF THE CONVICTION BY THE COURT BELOW AND BY THE ARGUMENTS AT
THE BAR OF THIS COURT, WAS WITH ALLURING PROBLEMS OF PSYCHIATRY. 
THROUGHOUT THIS MELANCHOLY AFFAIR THE INSISTENCE WAS ON CLAIMS OF
FISHER'S MENTAL DEFICIENCIES AND THE LAW'S DUTY TO TAKE INTO
CONSIDERATION THE SKEPTICAL VIEWS OF MODERN PSYCHIATRY REGARDING THE
HISTORIC LEGAL TESTS FOR INSANITY.  I CANNOT BUT BELIEVE THAT THIS HAS
DIVERTED ATTENTION FROM THE MORE OBVIOUS AND CONVENTIONAL BUT
CONTROLLING INQUIRY REGARDING THE ABSENCE OR PRESENCE OF THE REQUISITE
PREMEDITATION, UNDER THE CIRCUMSTANCES OF THIS CASE. 

THAT THE CHARGE REQUESTED BY THE DEFENDANT AND DENIED DID NOT GO TO
THIS ISSUE OF PREMEDITATION UNAMBIGUOUSLY BUT IN AN AWKWARD AND OBLIQUE
WAY DID NOT LESSEN THE RESPONSIBILITY OF THE TRIAL JUDGE TO BRING THIS
ISSUE - IT WAS THE CRUCIAL ISSUE - SHARPLY AND VIVIDLY TO THE JURY'S
MIND.  IF THEIR MINDS HAD BEEN SO FOCUSED, THE JURY MIGHT WELL HAVE
FOUND THAT THE SUCCESSIVE STEPS THAT CULMINATED IN MISS REARDON'S DEATH
COULD NOT PROPERLY BE JUDGED IN ISOLATION.  THEY MIGHT WELL HAVE FOUND
A SEQUENCE OF EVENTS THAT CONSTITUTED A SINGLE, UNBROKEN RESPONSE TO A
PROVOCATION IN WHICH NO FORETHOUGHT, NO REFLECTION WHATEVER, ENTERED. 
A DEED MAY BE GRUESOME AND NOT BE PREMEDITATED.  CONCEDEDLY THERE WAS
NO MOTIVE FOR THE KILLING PRIOR TO THE INCITING "YOU BLACK NIGGER." 
THE TONE IN WHICH THESE WORDS WERE UTTERED EVIDENTLY PULLED THE TRIGGER
OF FISHER'S EMOTIONS, AND UNDER ADEQUATE INSTRUCTIONS THE JURY MIGHT
HAVE FOUND THAT WHAT THESE WORDS CONVEYED TO FISHER'S EARS UNHINGED HIS
SELF-CONTROL.  WHILE THERE MAY WELL HAVE BEEN MURDER, DELIBERATE
PREMEDITATION, FOR WHICH ALONE CONGRESS HAS PROVIDED THE DEATH
SENTENCE, MAY HAVE BEEN WANTING.  FN8  "WHILE IT IS UNLIKELY THAT THE
JURY WOULD RETURN A VERDICT OF MURDER IN THE FIRST DEGREE UNLESS
SATISFIED THAT THE DEFENDANT, AT THE TIME HE COMMITTED THE OFFENSE, WAS
CAPABLE OF ENTERTAINING THE MALICIOUS INTENT, WE CANNOT, IN A CASE OF
THIS KIND, SPECULATE AS TO WHAT CONSIDERATIONS ENTERED INTO THEIR
VERDICT."  SABENS V. UNITED STATES, 40 APP. D.C. 440, 444.  THE SAME
GUIDING CONSIDERATION FOR REVIEWING A DEATH SENTENCE WAS PITHILY
EXPRESSED THE OTHER DAY BY THE PRESENT LORD CHIEF JUSTICE OF ENGLAND:
"IT IS IMPOSSIBLE TO SAY WHAT VERDICT WOULD HAVE BEEN RETURNED HAD THE
CASE BEEN LEFT TO THE JURY WITH A PROPER DIRECTION."  KWAKU MENSAH V.
REX, (1946) A.C. 83, 94.  IN THAT CASE, THE PRIVY COUNCIL FOUND
INADEQUACY IN THE DIRECTION GIVEN BY THE TRIAL COURT ON CONSIDERATIONS
THAT WERE NOT MENTIONED IN THE COURTS BELOW NOR RAISED BY THE
APPELLANT.  NEITHER SHOULD WE PERMIT A DEATH SENTENCE TO STAND THAT
RAISES SUCH DOUBTS AS DOES FISHER'S CONVICTION ON THIS RECORD. 

AS I HAVE ALREADY INDICATED, I DO NOT BELIEVE THAT THE FACTS WARRANT
A FINDING OF PREMEDITATION.  BUT, IN ANY EVENT, THE JUSTIFICATION FOR
FINDING FIRST-DEGREE MURDER PREMEDITATION WAS SO TENUOUS THAT THE JURY
OUGHT NOT TO HAVE BEEN LEFT TO FOUNDER AND FLOUNDER WITHIN THE DARK
EMPTINESS OF LEGAL JARGON.  FN9  THE INSTRUCTIONS TO THE JURY ON THE
VITAL ISSUE OF PREMEDITATION CONSISTED OF THREADBARE GENERALITIES, A
JUMBLE OF EMPTY ABSTRACTIONS EQUALLY SUITABLE FOR ANY OTHER CHARGE OF
MURDER WITH NONE OF THE ELEMENTS THAT ARE DISTINCTIVE ABOUT THIS CASE,
MINGLED WITH TALK ABOUT MENTAL DISEASE.  WHAT THE JURY GOT WAS DEVOID
OF CLEAR GUIDANCE AND ILLUMINATION.  INADEQUATE DIRECTION TO A JURY MAY
BE AS FATAL AS MISDIRECTION.  THE OBSERVATIONS MADE BY THIS COURT IN A
CIVIL CASE ARE ESPECIALLY PERTINENT TO THE DUTY OF A FEDERAL JUDGE IN A
TRIAL FOR MURDER:  "...  IT IS THE RIGHT AND DUTY OF THE COURT TO AID
(THE JURY)  ...  BY DIRECTING THEIR ATTENTION TO THE MOST IMPORTANT
FACTS,  ...  BY RESOLVING THE EVIDENCE, HOWEVER COMPLICATED, INTO ITS
SIMPLEST ELEMENTS, AND BY SHOWING THE BEARING OF ITS SEVERAL PARTS AND
THEIR COMBINED EFFECT, STRIPPED OF EVERY CONSIDERATION WHICH MIGHT
OTHERWISE MISLEAD OR CONFUSE THEM....  CONSTITUTED AS JURIES ARE, IT IS
FREQUENTLY IMPOSSIBLE FOR THEM TO DISCHARGE THEIR FUNCTION WISELY AND
WELL WITHOUT THIS AID.  IN SUCH CASES, CHANCE, MISTAKE, OR CAPRICE, MAY
DETERMINE THE RESULT."  NUDD V. BURROWS, 91 U.S. 426, 439. 

ONLY THE OTHER DAY WE EXERCISED OUR SUPERVISORY RESPONSIBILITY OVER
THE LOWER FEDERAL COURTS TO ASSURE AGAINST THE POSSIBILITY OF
UNFAIRNESS IN THE OPERATION OF THE JURY SYSTEM IN ORDINARY CIVIL
SUITS.  THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217.  BY HOW MUCH MORE
SHOULD WE GUARD AGAINST A FATAL MISHAP WHERE LIFE IS AT STAKE.  THIS
COURT IN REVIEWING A CONVICTION FOR MURDER IN THE FEDERAL COURTS OUGHT
NOT TO BE BEHIND THE HOUSE OF LORDS AND THE PRIVY COUNCIL IN REJECTING
STRANGLING TECHNICALITIES.  SEE MANCINI V. DIRECTOR OF PUBLIC
PROSECUTIONS, (1942) A.C. 1, 7-8; FN10  KWAKU MENSAH V. REX, SUPRA.  IT
SHOULD BE GUIDED, AS WAS THE PRIVY COUNCIL IN THE CASE OF A LOWLY WEST
AFRICAN VILLAGER, BY BROAD CONSIDERATIONS OF JUSTICE SO AS TO AVOID THE
MISTAKE OF AFFIRMING A DEATH SENTENCE WHICH THE JURY MAY WELL NOT HAVE
RETURNED HAD THEY HAD A DIRECTION THAT WOULD HAVE INFORMED THEIR
UNDERSTANDING AND GUIDED THEIR JUDGMENT.  IN THE CIRCUMSTANCES OF THIS
CASE, FAILURE TO CHARGE THE JURY ADEQUATELY WAS TO DENY FISHER THE
SUBSTANCE OF A FAIR TRIAL. 

MEN OUGHT NOT TO GO TO THEIR DOOM BECAUSE THIS COURT THINKS THAT
CONFLICTING LEGAL CONCLUSIONS OF AN ABSTRACT NATURE SEEM TO HAVE BEEN
"NICELY BALANCED" BY THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA.  THE DEFERENCE WHICH THIS COURT PAYS TO THAT COURT'S
ADJUDICATIONS IN ORDINARY CASES INVOLVING ISSUES ESSENTIALLY OF MINOR
OR MERELY LOCAL IMPORTANCE SEEMS OUT OF PLACE WHEN THE ACTION OF THIS
COURT, NO MATTER HOW PHRASED, SUSTAINS A DEATH SENTENCE AT THE SEAT OF
OUR GOVERNMENT AS A RESULT OF A TRIAL OVER WHICH THIS COURT, BY
DIRECTION OF CONGRESS, HAS THE FINAL REVIEWING POWER.  THIS COURT
CANNOT ESCAPE RESPONSIBILITY FOR THE DEATH SENTENCE IF IT AFFIRMS THE
JUDGMENT.  ONE CAN ONLY HOPE THAT EVEN MORE SERIOUS CONSEQUENCES WILL
NOT FOLLOW, WHICH WOULD BE THE CASE IF THE COURT'S DECISION WERE TO
GIVE ENCOURAGEMENT TO DOCTRINES OF CRIMINAL LAW THAT HAVE ONLY
OBSCURANTIST PRECEDENTS OF THE PAST TO RECOMMEND THEM.  MOREOVER, A
FAILURE ADEQUATELY TO GUIDE A JURY ON A BASIC ISSUE, SUCH AS THAT OF
PREMEDITATION ON A CHARGE OF MURDER IN THE FIRST DEGREE, DOES NOT
REFLECT A "LONG ESTABLISHED" PRACTICE, AND ONE HOPES WILL NOT BECOME
"DEEPLY ROOTED," IN THE DISTRICT.  FN11  QUITE THE CONTRARY STANDARD IS
INDICATED BY AN EARLIER OPINION OF THE COURT OF APPEALS.  SEE MCAFFEE
V. UNITED STATES, 70 APP. D.C. 142, 105 F.2D 21, 26. 

THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL GRANTED. 

FN1  M'NAGHTEN'S CASE, 10 CL. & FIN.  200(1843).  MORE THAN SIXTY
YEARS AGO SIR JAMES FITZJAMES STEPHEN BROUGHT WEIGHTY CRITICISM TO BEAR
ON THE M'NAGHTEN CASE.  2 STEPHEN A HISTORY OF THE CRIMINAL LAW OF
ENGLAND (1883) 153 ET SEQ.; FOR MORE RECENT CONSIDERATION OF THE CASE,
SEE GLUECK, MENTAL DISORDER AND THE CRIMINAL LAW (1925) C. 6; CARDOZO,
WHAT MEDICINE CAN DO FOR LAW (1930) 28-35. 

FN2  SEE, E.G., WHITE, INSANITY AND THE CRIMINAL LAW (1923);
ABRAHAMSEN, CRIME AND THE HUMAN MIND (1944); LINDNER, REBEL WITHOUT A
CAUSE (1944); RADZINOWICZ & TURNER, EDS., MENTAL ABNORMALITY AND CRIME
(1944); REIK, THE UNKNOWN MURDERER (1945); SEE ALSO, HALL, MENTAL
DISEASE AND CRIMINAL RESPONSIBILITY (1945) 45 COL. L. REV. 677, 680-84,
AND AUTHORITIES CITED THEREIN. 

FN3  SEE, E.G., ANNOTATED LAWS OF MASSACHUSETTS, C. 278, SEC. 33E;
COMMONWEALTH V. GRICUS, 317 MASS. 403, 406, 58 N.E.2D 241;
MASSACHUSETTS JUDICIAL COUNCIL, THIRD REPORT (1927) 40-43, 131-35;
MASSACHUSETTS JUDICIAL COUNCIL, THIRTEENTH REPORT (1937) 28-30; NEW
YORK CONSTITUTION, ARTICLE 6, SEC. 7; PEOPLE V. CRUM, 272 N.Y. 348, 6
N.E.2D 51; CARDOZO, JURISDICTION OF THE COURT OF APPEALS (2D ED., 1909)
SEC. 51; AMERICAN LAW INSTITUTE, CODE OF CRIMINAL PROCEDURE (OFFICIAL
DRAFT, 1930) SEC. 457(2); ORFIELD, CRIMINAL APPEALS IN AMERICA (1939)
83 ET SEQ. 

THE REASONS FOR SUCH REVIEW ARE SUCCINCTLY STATED IN THE THIRTEENTH
REPORT OF THE MASSACHUSETTS JUDICIAL COUNCIL, SUPRA, AT 29:  "IN
SUBSTANCE THIS (DENIAL OF THE RIGHT TO CONSIDER THE FACTS BY THE
APPELLATE COURT) MEANS THAT THERE IS NO REVIEW OF THE DISCRETION OF THE
SINGLE JUDGE.  THUS A MATTER OF LIFE OR DEATH, ONCE TREATED (IN
MASSACHUSETTS) WITH THE UTMOST CARE, EVEN BEYOND THE REQUIREMENTS OF
THE LAW, HAS NOW BEEN COMMITTED TO A SINGLE JUDGE OF THE SUPERIOR
COURT, WITH NO REVIEW WHATEVER ON ITS MOST VITAL ASPECTS.  SUCH A
SITUATION PLACES AN UNFAIR RESPONSIBILITY UPON THE TRIAL JUDGE AND UPON
THE GOVERNOR, IS A POTENTIAL THREAT TO JUSTICE AND IS NOT REASSURING TO
THE PUBLIC WHO HAVE A RIGHT TO DEMAND THAT JUDICIAL CONSIDERATION
SHOULD BE EXHAUSTED BEFORE A MAN IS CONDEMNED TO DEATH." 

FN4  AS TO CERTAIN CLASSES OF LITIGATION THAT COME HERE, THIS COURT
HAS, OF COURSE, ALWAYS HAD POWER TO REVIEW THE EVIDENCE.  E.G.,
"(SINCE) BY AN APPEAL, EXCEPT WHEN SPECIALLY PROVIDED OTHERWISE, THE
ENTIRE CASE ON BOTH LAW AND FACTS IS TO BE RECONSIDERED, THERE SEEMS TO
BE LITTLE DOUBT THAT, SO FAR AS IT IS ESSENTIAL TO A PROPER DECISION OF
THIS CASE, THE APPEAL REQUIRES US TO EXAMINE INTO THE EVIDENCE BROUGHT
TO SUSTAIN OR DEFEAT THE RIGHT OF THE PETITIONER TO HIS DISCHARGE."  IN
RE NEAGLE, 135 U.S. 1, 42. 

FN5  DISTRICT OF COLUMBIA CODE (1940) SEC. 22-2401:  "WHOEVER, BEING
OF SOUND MEMORY AND DISCRETION, KILLS ANOTHER PURPOSELY, EITHER OF
DELIBERATE AND PREMEDITATED MALICE OR BY MEANS OF POISON, OR IN
PERPETRATING OR ATTEMPTING TO PERPETRATE ANY OFFENSE PUNISHABLE BY
IMPRISONMENT IN THE PENITENTIARY, OR WITHOUT PURPOSE SO TO DO KILLS
ANOTHER IN PERPETRATING OR IN ATTEMPTING TO PERPETRATE ANY ARSON, AS
DEFINED IN SECTION 22-401 OR 22-402 OF THIS CODE, RAPE, MAYHEM,
ROBBERY, OR KIDNAPPING, OR IN PERPETRATING OR IN ATTEMPTING TO
PERPETRATE ANY HOUSEBREAKING WHILE ARMED WITH OR USING A DANGEROUS
WEAPON, IS GUILTY OF MURDER IN THE FIRST DEGREE." 

SEC. 22-2402:  "WHOEVER MALICIOUSLY PLACES AN OBSTRUCTION UPON A
RAILROAD OR STREET RAILROAD, OR DISPLACES OR INJURES ANYTHING
APPERTAINING THERETO, OR DOES ANY OTHER ACT WITH INTENT TO ENDANGER THE
PASSAGE OF ANY LOCOMOTIVE OR CAR, AND THEREBY OCCASIONS THE DEATH OF
ANOTHER, IS GUILTY OF MURDER IN THE FIRST DEGREE." 

SEC. 22-2403:  "WHOEVER WITH MALICE AFORETHOUGHT, EXCEPT AS PROVIDED
IN SECTIONS 22-2401, 22-2402, KILLS ANOTHER, IS GUILTY OF MURDER IN THE
SECOND DEGREE." 

FN6  THE LEGISLATIVE HISTORY OF THESE SECTIONS IS MEAGRE.  THE
SEPARATION OF THE CRIME OF MURDER INTO TWO DEGREES SEEMS TO HAVE BEEN
FIRST PROPOSED FOR THE DISTRICT IN THE CODE OF 1857.  C. 130, SECS. 1
2.  THAT CODE WAS NEVER ENACTED BY CONGRESS.  THE PRESENT PROVISIONS
ARE THE RESULT OF A CODE PREPARED BY JUDGE COX AND ENACTED IN 1901.  31
STAT. 1189, 1321.  IN AN HISTORICAL NOTE THAT PRECEDES THE CODE, JUDGE
COX STATED THAT IT WAS TO HAVE BEEN BASED ON THE LAWS OF MARYLAND. 
DISTRICT OF COLUMBIA CODE (1940 ED.)  XIV.  IN A LETTER TO THE
WASHINGTON BOARD OF TRADE, HOWEVER, JUDGE COX STATED THAT THE CODE WAS
BASED ON THE LAWS OF MARYLAND, VIRGINIA, NEW YORK, AND OHIO.  REPORT OF
THE WASHINGTON BOARD OF TRADE, NOVEMBER 14, 1898, PP. 23-24.  AND THE
WASHINGTON LAW REPORTER, VOL. 26, P. 801, STATES THAT THE "PORTIONS OF
THE WORK RELATING TO CRIMES AND PUNISHMENTS FOLLOW THE STATUTES OF NEW
YORK IN CREATING DEGREES IN THE CRIME OF MURDER."  A COMPARISON OF THE
CODE WITH THE NEW YORK PENAL CODE OF 1898, SECS. 183, 183A, 184, BEARS
OUT THIS STATEMENT, THOUGH THE EXACT LANGUAGE OF THE NEW YORK STATUTE
WAS NOT ADOPTED. 

THE REPORTS OF EACH OF THE FOUR STATES, HOWEVER, UP TO THE TIME OF
THE ENACTMENT OF THE DISTRICT CODE, INDICATES UNANIMITY IN ONE
ESSENTIAL ELEMENT.  FOR A HOMICIDE TO CONSTITUTE MURDER IN THE FIRST
DEGREE, THE JURY MUST FIND IN ADDITION TO THE ELEMENT OF INTENT TO
KILL, PREMEDITATION AND DELIBERATION.  E.G., SPENCER V. STATE, 69 MD.
28(1888); LEIGHTON V. PEOPLE, 88 N.Y. 117(1882); PEOPLE V. MAJONE, 91
N.Y. 211(1883); PEOPLE V. CONROY, 97 N.Y. 62(1884); PEOPLE V. HAWKINS,
109 N.Y. 408, 17 N.E. 371(1888); PEOPLE V. BARBERI, 149 N.Y. 256, 43
N.E. 635(1896); OHIO V. NEIL, TAPPAN (OHIO) 120(1817); STATE V. TURNER,
WRIGHT (OHIO) 20(1831); STATE V. GARDINER, WRIGHT (OHIO) 392(1833);
STATE V. THOMPSON, WRIGHT (OHIO) 617(1834); SHOEMAKER V. STATE, 12 OHIO
43(1843); OHIO V. BROOKS, 1 OHIO DEC. 407(1851); FOUTS V. STATE, 8 OHIO
ST. 98(1857); STATE V. COOK, 2 OHIO DEC. 36(1859); BURNS V. STATE, 3
OHIO DEC. 122(1859); STATE V. MAXWELL, DAYTON (OHIO) 362(1867); ZELTNER
V. STATE, 32 OHIO C.C. 102(1899); COMMONWEALTH V. JONES, 1 LEIGH (VA.) 
598(1829); DEJARNETTE V. COMMONWEALTH, 75 VA. 867(1881); HITE V.
COMMONWEALTH, 96 VA. 489, 31 S.E. 895(1898); JACKSON V. COMMONWEALTH,
97 VA. 762, 33 S.E. 547(1899). 

FN7  PENNSYLVANIA ENACTED THIS TYPE OF LEGISLATION IN 1794. 
PENNSYLVANIA LAWS, 1794, C. 257, SECS. 1-2.  THIS EARLY STATUTE HAS
SERVED AS THE PATTERN UPON WHICH MOST LEGISLATIVE ACTION WITH A SIMILAR
PURPOSE HAS BEEN BASED.  SEE MICHAEL AND WECHSLER, A RATIONALE OF THE
LAW OF HOMICIDE (1937) 37 COL. L. REV. 701, 703-704; MICHAEL AND
WECHSLER, CRIMINAL LAW AND ITS ADMINISTRATION (1940) 1270-73.  THE
DISTRICT CODE DOES NOT DEPART VERY FAR FROM THE LANGUAGE OF THE
ORIGINAL PENNSYLVANIA STATUTE; NOR DID THE STATUTE OF THE TERRITORY OF
UTAH CONSTRUED BY THIS COURT IN HOPT V. PEOPLE, 104 U.S. 631, 632. 

FN8  FEDERAL JUDGES ARE NOT REFEREES IN SPORTING CONTESTS.  THEIR
DUTY TO KEEP A TRIAL IN THE COURSE OF JUSTICE IS ESPECIALLY COMPELLING
WHERE THE PENALTY FOR CONVICTION IS DEATH.  THE KIND OF GUIDANCE THAT A
TRIAL JUDGE SHOULD GIVE A JURY IN A CASE LIKE THIS IS WELL ILLUSTRATED
BY JUDGE ANDREWS IN PEOPLE V. CARUSO, 246 N.Y. 437, 159 N.E. 390. 
E.G., "BUT WAS THERE PREMEDITATION AND DELIBERATION?...  TIME TO
DELIBERATE AND PREMEDITATE THERE CLEARLY WAS.  CARUSO MIGHT HAVE DONE
SO.  IN FACT, HOWEVER, DID HE? 

"UNTIL THE SATURDAY EVENING CARUSO HAD NEVER MET DR. PENDOLA. 
NOTHING OCCURRED AT THAT INTERVIEW THAT FURNISHED ANY MOTIVE FOR
MURDER.  THEN CAME NERVOUS STRAIN AND ANXIETY CULMINATING IN GRIEF,
DEEP AND GENUINE, FOR THE DEATH OF HIS CHILD.  BROODING OVER HIS LOSS,
BLAMING THE DOCTOR FOR HIS DELAY IN MAKING THE PROMISED VISIT,
BELIEVING HE HAD KILLED THE BOY BY HIS TREATMENT, THE DOCTOR FINALLY
ENTERS.  AND WHEN TOLD OF THE CHILD'S DEATH HE APPEARS TO LAUGH.  THIS
ADDED TO HIS SUPPOSED INJURIES WOULD FULLY ACCOUNT FOR THE GUST OF
ANGER THAT CARUSO SAYS HE FELT.  THEN CAME THE STRUGGLE AND THE
HOMICIDE. 

"AS HAS BEEN SAID, CARUSO HAD THE TIME TO DELIBERATE, TO MAKE A
CHOICE WHETHER TO KILL OR NOT TO KILL - TO OVERCOME HESITATION AND
DOUBT - TO FORM A DEFINITE PURPOSE.  AND WHERE SUFFICIENT TIME EXISTS
VERY OFTEN THE CIRCUMSTANCES SURROUNDING THE HOMICIDE JUSTIFY - INDEED
REQUIRE - THE NECESSARY INFERENCE.  NOT HERE, HOWEVER.  NO PLAN TO KILL
IS SHOWN, NO INTENTION OF VIOLENCE WHEN THE DOCTOR ARRIVED - ONLY GRIEF
AND RESENTMENT.  NOT UNTIL THE SUPPOSED LAUGH DID THE ASSAULT BEGIN....
THE ATTACK SEEMS TO HAVE BEEN THE INSTANT EFFECT OF IMPULSE.  NOR DOES
THE FACT THAT THE STABBING FOLLOWED THE BEGINNING OF THE ATTACK BY SOME
TIME AFFECT THIS CONCLUSION.  IT WAS ALL ONE TRANSACTION UNDER THE
PECULIAR FACTS OF THIS CASE.  IF THE ASSAULT WAS NOT DELIBERATED OR
PREMEDITATED THEN NEITHER WAS THE INFLICTION OF THE FATAL WOUND."  246
N.Y. AT 445-46. 

FN9  "...  IT IS NOT TOO MUCH TO SAY OF ANY PERIOD, IN ALL ENGLISH
HISTORY, THAT IT IS IMPOSSIBLE TO CONCEIVE OF TRIAL BY JURY AS EXISTING
THERE IN A FORM WHICH WOULD WITHHOLD FROM THE JURY THE ASSISTANCE OF
THE COURT IN DEALING WITH THE FACTS.  TRIAL BY JURY, IN SUCH A FORM AS
THAT, IS NOT TRIAL BY JURY IN ANY HISTORIC SENSE OF THE WORDS.  IT IS
NOT THE VENERATED INSTITUTION WHICH ATTRACTED THE PRAISE OF BLACKSTONE
AND OF OUR ANCESTORS, BUT SOMETHING NOVEL, MODERN, AND MUCH LESS TO BE
RESPECTED. 

"IN THE FEDERAL COURTS THE COMMON-LAW DOCTRINE ON THIS SUBJECT HAS
ALWAYS HELD."  THAYER, PRELIMINARY TREATISE ON EVIDENCE (1898) 188, N.
2. 

FN10  "ALTHOUGH THE APPELLANT'S CASE AT THE TRIAL WAS IN SUBSTANCE
THAT HE HAD BEEN COMPELLED TO USE HIS WEAPON IN NECESSARY SELF-DEFENCE
A DEFENCE WHICH, IF IT HAD BEEN ACCEPTED BY THE JURY, WOULD HAVE
RESULTED IN HIS COMPLETE ACQUITTAL - IT WAS UNDOUBTEDLY THE DUTY OF THE
JUDGE, IN SUMMING UP TO THE JURY, TO DEAL ADEQUATELY WITH ANY OTHER
VIEW OF THE FACTS WHICH MIGHT REASONABLY ARISE OUT OF THE EVIDENCE
GIVEN, AND WHICH WOULD REDUCE THE CRIME FROM MURDER TO MANSLAUGHTER. 
THE FACT THAT A DEFENDING COUNSEL DOES NOT STRESS AN ALTERNATIVE CASE
BEFORE THE JURY (WHICH HE MAY WELL FEEL IT DIFFICULT TO DO WITHOUT
PREJUDICING THE MAIN DEFENCE) DOES NOT RELIEVE THE JUDGE FROM THE DUTY
OF DIRECTING THE JURY TO CONSIDER THE ALTERNATIVE, IF THERE IS MATERIAL
BEFORE THE JURY WHICH WOULD JUSTIFY A DIRECTION THAT THEY SHOULD
CONSIDER IT.  THUS, IN REX V. HOPPER ((1915) 2 K.B. 431), AT A TRIAL
FOR MURDER THE PRISONER'S COUNSEL RELIED SUBSTANTIALLY ON THE DEFENCE
THAT THE KILLING WAS ACCIDENTAL, BUT LORD READING C.J., IN DELIVERING
THE JUDGMENT OF THE COURT OF CRIMINAL APPEAL, SAID (ID. AT 435):  'WE
DO NOT ASSENT TO THE SUGGESTION THAT AS THE DEFENCE THROUGHOUT THE
TRIAL WAS ACCIDENT, THE JUDGE WAS JUSTIFIED IN NOT PUTTING THE QUESTION
AS TO MANSLAUGHTER.  WHATEVER THE LINE OF DEFENCE ADOPTED BY COUNSEL AT
THE TRIAL OF A PRISONER, WE ARE OF OPINION THAT IT IS FOR THE JUDGE TO
PUT SUCH QUESTIONS AS APPEAR TO HIM PROPERLY TO ARISE UPON THE
EVIDENCE, EVEN ALTHOUGH COUNSEL MAY NOT HAVE RAISED SOME QUESTION
HIMSELF.  IN THIS CASE IT MAY BE THAT THE DIFFICULTY OF PRESENTING THE
ALTERNATIVE DEFENCES OF ACCIDENT AND MANSLAUGHTER MAY HAVE ACTUATED
COUNSEL IN SAYING VERY LITTLE ABOUT MANSLAUGHTER, BUT IF WE COME TO THE
CONCLUSION, AS WE DO, THAT THERE WAS SOME EVIDENCE - WE SAY NO MORE
THAN THAT - UPON WHICH A QUESTION OUGHT TO HAVE BEEN LEFT TO THE JURY
AS TO THE CRIME BEING MANSLAUGHTER ONLY, WE THINK THAT THIS VERDICT OF
MURDER CANNOT STAND.'" 

FN11  THE ONLY AUTHORITY ADDUCED FOR WHAT THE COURT TERMS LONG
ESTABLISHED PRACTICE IS UNITED STATES V. LEE, 4 MACKEY (D.C.) 
489(1886).  BUT THAT CASE WAS DECIDED WHILE COMMON LAW MURDER WAS THE
LAW OF THE DISTRICT.  THE ENACTMENT OF THE CODE RENDERED THAT CASE'S
DOCTRINE INVALID.  COUNSEL FOR THE GOVERNMENT, A DISTINGUISHED LAWYER,
MR. A.S. WORTHINGTON, POINTED TO THE DISTINCTION IN HIS ARGUMENT:  "IN
JURISDICTIONS WHERE MURDER IS DIVIDED INTO TWO DEGREES - MURDER IN THE
FIRST DEGREE REQUIRING DELIBERATION AND PREMEDITATION; IN OTHER WORDS,
ACTUAL MALICE - IT HAS BEEN FREQUENTLY HELD THAT EVIDENCE OF MENTAL
EXCITEMENT RESULTING FROM DRUNKENNESS AND, PERHAPS, ALSO OF OTHER
ABNORMAL CONDITIONS OF THE MIND NOT AMOUNTING TO INSANITY, MAY REDUCE
AN UNPROVOKED HOMICIDE TO MURDER IN THE SECOND DEGREE; BUT IT HAS
ALWAYS BEEN HELD THAT SUCH EVIDENCE CANNOT OF ITSELF REDUCE THE CRIME
TO MANSLAUGHTER."  ID. AT 493.  THE CHANGE WROUGHT BY CONGRESS IS
REFLECTED IN SABENS V. UNITED STATES, 40 APP. D.C. 440; BISHOP V.
UNITED STATES, 71 APP. D.C. 132, 107 F.2D 297; BULLOCK V. UNITED
STATES, 74 APP. D.C. 220, 122 F.2D 213, 214. 

MR. JUSTICE MURPHY, DISSENTING. 

AS THIS CASE REACHES US, WE ARE NOT MET WITH ANY QUESTION AS TO
WHETHER PETITIONER KILLED AN INDIVIDUAL.  THAT FACT IS ADMITTED.  OUR
SOLE CONCERN HERE IS WITH THE CHARGE GIVEN TO THE JURY CONCERNING THE
ELEMENTS ENTERING INTO THE VARIOUS DEGREES OF MURDER FOR WHICH
PETITIONER COULD BE CONVICTED. 

THE RULE THAT THIS COURT ORDINARILY WILL REFRAIN FROM REVIEWING
DECISIONS DEALING WITH MATTERS OF LOCAL LAW IN THE DISTRICT OF COLUMBIA
IS A SOUND AND NECESSARY ONE.  BUT IT IS NOT TO BE APPLIED WITHOUT
DISCRETION.  LIKE MOST RULES, THIS ONE HAS ITS EXCEPTIONS.  AND THOSE
EXCEPTIONS ARE GROUNDED PRIMARILY IN CONSIDERATIONS OF PUBLIC POLICY
AND OF SOUND ADMINISTRATION OF JUSTICE. 

IN THE PAST, THIS COURT HAS SEEN FIT TO DETERMINE VARIOUS COMMON LAW
ISSUES AFFECTING ONLY THE DISTRICT OF COLUMBIA.  ALDRIDGE V. UNITED
STATES, 283 U.S. 308; REED V. ALLEN, 286 U.S. 191; BEST V. DISTRICT OF
COLUMBIA, 291 U.S. 411.  IT HAS ALSO, ON OCCASION, SETTLED ISSUES
INVOLVING THE INTERPRETATION OF PROVISIONS OF THE DISTRICT OF COLUMBIA
CODE.  WASHINGTON FIDELITY INS. CO. V. BURTON, 287 U.S. 97; LOUGHRAN V.
LOUGHRAN, 292 U.S. 216; DISTRICT OF COLUMBIA V. MURPHY, 314 U.S. 441. 
IN MANY RESPECTS, HOWEVER, THE PROBLEM IN THIS INSTANCE FAR TRANSCENDS
THE ONES PRESENTED IN THOSE CASES. 

HERE WE HAVE MORE THAN AN EXERCISE IN STATUTORY CONSTRUCTION OR IN
LOCAL LAW.  IT IS A CAPITAL CASE INVOLVING NOT A QUESTION OF INNOCENCE
OR GUILT BUT RATHER A CONSIDERATION OF THE PROPER STANDARDS TO BE USED
IN JUDGING THE DEGREE OF GUILT.  WHAT THE COURT SAYS AND DECIDES HERE
TODAY WILL AFFECT THE LIFE OF THE PETITIONER AS WELL AS THE LIVES OF
COUNTLESS FUTURE CRIMINALS IN THE DISTRICT AND IN THE VARIOUS STATES. 
HOWEVER GUARDED MAY BE THE COURT'S STATEMENTS, ITS TREATMENT OF
PETITIONER'S CLAIMS WILL HAVE INEVITABLE REPERCUSSIONS IN STATE AND
FEDERAL CRIMINAL PROCEEDINGS.  MOREOVER, THESE CLAIMS, WHATEVER THEIR
MERIT, AFFORD A RARE OPPORTUNITY TO EXPLORE SOME OF THE FRONTIERS OF
CRIMINAL LAW, FRONTIERS THAT ARE SLOWLY BUT UNDENIABLY EXPANDING UNDER
THE IMPACT OF OUR INCREASING KNOWLEDGE OF PSYCHOLOGY AND PSYCHIATRY. 
THESE FACTORS ARE MORE THAN SUFFICIENT TO WARRANT A FULL AND CAREFUL
CONSIDERATION OF THE PROBLEMS RAISED BY THIS CASE. 

THE ISSUE HERE IS NARROW YET REPLETE WITH SIGNIFICANCE.  STATED
BRIEFLY, IT IS THIS:  MAY MENTAL DEFICIENCY NOT AMOUNTING TO COMPLETE
INSANITY PROPERLY BE CONSIDERED BY THE JURY IN DETERMINING WHETHER A
HOMICIDE HAS BEEN COMMITTED WITH THE DELIBERATION AND PREMEDITATION
NECESSARY TO CONSTITUTE FIRST DEGREE MURDER?  THE CORRECT ANSWER, IN MY
OPINION, WAS GIVEN BY THIS COURT MORE THAN SIXTY YEARS AGO IN HOPT V.
PEOPLE, 104 U.S. 631, 634, WHEN IT SAID, "BUT WHEN A STATUTE
ESTABLISHING DIFFERENT DEGREES OF MURDER REQUIRES DELIBERATE
PREMEDITATION IN ORDER TO CONSTITUTE MURDER IN THE FIRST DEGREE, THE
QUESTION WHETHER THE ACCUSED IS IN SUCH A CONDITION OF MIND, BY REASON
OF DRUNKENNESS OR OTHERWISE, AS TO BE CAPABLE OF DELIBERATE
PREMEDITATION, NECESSARILY BECOMES A MATERIAL SUBJECT OF CONSIDERATION
BY THE JURY." 

THE EXISTENCE OF GENERAL MENTAL IMPAIRMENT, OR PARTIAL INSANITY, IS A
SCIENTIFICALLY ESTABLISHED FACT.  THERE IS NO ABSOLUTE OR CLEAR-CUT
DICHOTOMOUS DIVISION OF THE INHABITANTS OF THIS WORLD INTO THE SANE AND
THE INSANE.  "BETWEEN THE TWO EXTREMES OF 'SANITY' AND 'INSANITY' LIES
EVERY SHADE OF DISORDERED OR DEFICIENT MENTAL CONDITION, GRADING
IMPERCEPTIBLY ONE INTO ANOTHER."  WEIHOFEN, "PARTIAL INSANITY AND
CRIMINAL INTENT," 24 ILL. L. REV. 505, 508. 

MORE PRECISELY, THERE ARE PERSONS WHO, WHILE NOT TOTALLY INSANE,
POSSESS SUCH LOW MENTAL POWERS AS TO BE INCAPABLE OF THE DELIBERATION
AND PREMEDITATION REQUISITE TO STATUTORY FIRST DEGREE MURDER.  YET
UNDER THE RULE ADOPTED BY THE COURT BELOW, THE JURY MUST EITHER CONDEMN
SUCH PERSONS TO DEATH ON THE FALSE PREMISE THAT THEY POSSESS THE MENTAL
REQUIREMENTS OF A FIRST DEGREE MURDERER OR FREE THEM COMPLETELY FROM
CRIMINAL RESPONSIBILITY AND TURN THEM LOOSE AMONG SOCIETY.  THE JURY IS
FORBIDDEN TO FIND THEM GUILTY OF A LESSER DEGREE OF MURDER BY REASON OF
THEIR GENERALLY WEAKENED OR DISORDERED INTELLECT. 

COMMON SENSE AND LOGIC RECOIL AT SUCH A RULE.  AND IT IS DIFFICULT TO
MARSHAL SUPPORT FOR IT FROM CIVILIZED CONCEPTS OF JUSTICE OR FROM THE
NECESSITY OF PROTECTING SOCIETY.  WHEN A MAN'S LIFE OR LIBERTY IS AT
STAKE HE SHOULD BE ADJUDGED ACCORDING TO HIS PERSONAL CULPABILITY AS
WELL AS BY THE OBJECTIVE SERIOUSNESS OF HIS CRIME.  THAT ELEMENTARY
PRINCIPLE OF JUSTICE IS APPLIED TO THOSE WHO KILL WHILE INTOXICATED OR
IN THE HEAT OF PASSION; IF SUCH A CONDITION DESTROYS THEIR DELIBERATION
AND PREMEDITATION THE JURY MAY PROPERLY CONSIDER THAT FACT AND CONVICT
THEM OF A LESSER DEGREE OF MURDER.  NO DIFFERENT PRINCIPLE SHOULD BE
UTILIZED IN THE CASE OF THOSE WHOSE MENTAL DEFICIENCY IS OF A MORE
PERMANENT CHARACTER.  SOCIETY, MOREOVER, IS ILL-PROTECTED BY A RULE
WHICH ENCOURAGES A JURY TO ACQUIT A PARTIALLY INSANE PERSON WITH AN
APPEALING CASE SIMPLY BECAUSE HIS MENTAL DEFECTS CANNOT BE CONSIDERED
IN REDUCING THE DEGREE OF GUILT. 

IT IS UNDENIABLY DIFFICULT, AS THE GOVERNMENT POINTS OUT, TO
DETERMINE WITH ANY HIGH DEGREE OF CERTAINTY WHETHER A DEFENDANT HAS A
GENERAL MENTAL IMPAIRMENT AND WHETHER SUCH A DISORDER RENDERS HIM
INCAPABLE OF THE REQUISITE DELIBERATION AND PREMEDITATION.  THE
DIFFICULTY SPRINGS PRIMARILY FROM THE PRESENT LIMITED SCOPE OF MEDICAL
AND PSYCHIATRIC KNOWLEDGE OF MENTAL DISEASE.  BUT THIS KNOWLEDGE IS
EVER INCREASING.  AND JURIES CONSTANTLY MUST JUDGE THE BAFFLING
PSYCHOLOGICAL FACTORS OF DELIBERATION AND PREMEDITATION, CONGRESS
HAVING ENTRUSTED THE ASCERTAINMENT OF THOSE FACTORS TO THE GOOD SENSE
OF JURIES.  IT SEEMS SENSELESS TO SHUT THE DOOR ON THE ASSISTANCE WHICH
MEDICINE AND PSYCHIATRY CAN GIVE IN REGARD TO THESE MATTERS, HOWEVER
INEXACT AND INCOMPLETE THAT ASSISTANCE MAY PRESENTLY BE.  PRECLUDING
THE CONSIDERATION OF MENTAL DEFICIENCY ONLY MAKES THE JURY'S DECISION
ON DELIBERATION AND PREMEDITATION LESS INTELLIGENT AND TRUSTWORTHY. 

IT IS ALSO SAID THAT THE PROPOSED RULE WOULD REQUIRE A REVOLUTIONARY
CHANGE IN CRIMINAL PROCEDURE IN THE DISTRICT OF COLUMBIA AND THAT THIS
COURT SHOULD THEREFORE LEAVE THE MATTER TO LOCAL COURTS OR TO
CONGRESS.  I CANNOT AGREE.  CONGRESS HAS ALREADY SPOKEN BY MAKING THE
DISTINCTION BETWEEN FIRST AND SECOND DEGREE MURDER TURN UPON THE
EXISTENCE OF DELIBERATION AND PREMEDITATION.  IT IS THE DUTY OF THE
COURTS BELOW TO FASHION RULES TO PERMIT THE JURY TO UTILIZE ALL
RELEVANT EVIDENCE DIRECTED TOWARD THOSE FACTORS.  BUT WHEN THE COURTS
BELOW ADOPT RULES WHICH SUBSTANTIALLY IMPAIR THE JURY'S FUNCTION IN
THIS RESPECT, THIS COURT SHOULD EXERCISE ITS RECOGNIZED PREROGATIVE. 

IF, AS A RESULT, NEW RULES OF EVIDENCE OR NEW MODES OF TREATMENT FOR
THE PARTLY DEFECTIVE MUST BE DEVISED, OUR SYSTEM OF CRIMINAL
JURISPRUDENCE WILL BE THAT MUCH FURTHER ENLIGHTENED.  SUCH PROGRESS
CLEARLY OUTWEIGHS ANY TEMPORARY DISLOCATION OF SETTLED MODES OF
PROCEDURE.  ONLY BY INTEGRATING SCIENTIFIC ADVANCEMENTS WITH OUR IDEALS
OF JUSTICE CAN LAW REMAIN A PART OF THE LIVING FIBER OF OUR
CIVILIZATION. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE RUTLEDGE JOIN IN THIS
DISSENT. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

A REVOLTING CRIME, SUCH AS WAS COMMITTED HERE, REQUIRES UNUSUAL
CIRCUMSPECTION FOR ITS TRIAL, SO THAT DISPASSIONATE JUDGMENT MAY HAVE
SWAY OVER THE INEVITABLE TENDENCY OF THE FACTS TO INTRODUCE PREJUDICE
OR PASSION INTO THE JUDGMENT.  THIS MEANS THAT THE ACCUSED MUST NOT BE
DENIED ANY SUBSTANTIAL SAFEGUARD FOR CONTROL OF THOSE INFLUENCES.  A
TRIAL FOR A CAPITAL OFFENSE WHICH FALLS SHORT OF THAT STANDARD,
ALTHOUGH UNWITTINGLY, DOES NOT GIVE HIM HIS DUE. 

CONGRESS INTRODUCED THE REQUIREMENTS OF PREMEDITATION AND
DELIBERATION INTO THE DISTRICT OF COLUMBIA CODE, TITLE 22, SECS. 2401,
2404, IN 1901.  31 STAT. 1321, WITH WHICH COMPARE REV. STAT. SEC.
5339.  I DO NOT THINK IT INTENDED BY DOING SO TO CHANGE THE PREEXISTING
LAW ONLY IN CASES OF INTOXICATION.  HENCE, I CANNOT ASSENT TO THE VIEW
THAT THE INSTRUCTIONS GIVEN TO THE JURY WERE ADEQUATE ON THIS PHASE OF
THE CASE.  I THINK THE DEFENDANT WAS ENTITLED TO THE REQUESTED
INSTRUCTION WHICH WAS REFUSED OR ONE OF SIMILAR IMPORT. 

I HAVE NO DOUBT THAT THE TRIAL COURT DECLINED TO GIVE IT BELIEVING
THAT IT WAS NOT REQUIRED, PERHAPS ALSO THAT IT WOULD BE ERRONEOUS.  FOR
THE FAIR-MINDED AND ABLE ASSISTANT DISTRICT ATTORNEY WHO ARGUED THE
CASE HERE CONCEDED, WITH CHARACTERISTIC CANDOR, THAT THE COURTS OF THE
DISTRICT HAVE CONSISTENTLY LIMITED THE EFFECT OF THE CONTROLLING CODE
PROVISION, BY WAY OF CHANGING THE PREEXISTING LAW, TO CASES OF
INTOXICATION.  BUT, FOR THE REASONS IN THE OPINION OF MR. JUSTICE
MURPHY, I DO NOT THINK CONGRESS INTENDED THE CHANGE TO BE RESTRICTED SO
NARROWLY.  ACCORDINGLY I JOIN IN THAT OPINION. 

APART FROM THIS DEFECT, THE INSTRUCTIONS GIVEN WERE CORRECT AS FAR AS
THEY WENT.  THEY WERE HOWEVER IN WHOLLY ABSTRACT FORM, WHICH IN SOME
CASES MIGHT BE SUFFICIENT.  BUT THE ISSUES OF PREMEDITATION AND
DELIBERATION WERE CRUCIAL HERE ON THE QUESTION OF LIFE OR DEATH.  A
MORE ADEQUATE CHARGE, I AGREE WITH MR. JUSTICE FRANKFURTER, WOULD HAVE
POINTED UP THE EVIDENCE, AT LEAST IN BROAD OUTLINE, IN RELATION TO
THOSE ISSUES. 

BECAUSE I THINK THE CHARGE WAS DEFICIENT IN NOT INCLUDING THE
REQUESTED INSTRUCTION OR ONE SUBSTANTIALLY SIMILAR, THUS IN MY OPINION
FAILING TO MEET THE STANDARD SET BY CONGRESS IN THE CODE, AND BECAUSE
THE EFFECT OF THIS DEFICIENCY WAS MAGNIFIED BY THE FAILURE TO POINT UP
THE INSTRUCTIONS GIVEN IN SOME MORE DEFINITE RELATION TO THE EVIDENCE,
I THINK THE JUDGMENT SHOULD BE REVERSED. 
..END :









R.F.C. V. DENVER & R.G.W.R. CO., 328 U.S. 495 


ARGUED MARCH 5, 6, 1946.  - DECIDED JUNE 10, 1946.  - 150 F.2D 28,
REVERSED. 


DURING LENGTHY PROCEEDINGS FOR THE REORGANIZATION OF A RAILROAD UNDER
SEC. 77 OF THE BANKRUPTCY ACT, IT REALIZED ABNORMALLY LARGE EARNINGS
FROM WAR BUSINESS.  MOST OF THESE EARNINGS WERE UTILIZED TO MAKE
CAPITAL IMPROVEMENTS AND A LARGE AMOUNT WAS HELD AS FREE CASH. 
MEANWHILE, THE CLAIMS OF SECURED CREDITORS WERE INCREASED SUBSTANTIALLY
BY THE ACCUMULATION OF INTEREST AND THE POSITION OF HOLDERS OF GENERAL
MORTGAGE BONDS (THE MOST JUNIOR LIEN HOLDERS) DETERIORATED 90%. THE
INTERSTATE COMMERCE COMMISSION APPROVED A PLAN OF REORGANIZATION WHICH
ELIMINATED THE CLAIMS OF ALL EXISTING STOCKHOLDERS AND UNSECURED
CREDITORS, GAVE THE HOLDERS OF GENERAL MORTGAGE BONDS NEW COMMON STOCK
IN FACE AMOUNT OF 10% OF THEIR CLAIMS, AND GAVE SENIOR BONDHOLDERS NEW
SECURITIES (INCLUDING ABOUT 88% OF THE NEW COMMON STOCK) HAVING AN
AGGREGATE FACE VALUE EQUAL TO 100% OF THEIR CLAIMS.  THIS WAS BASED
UPON A DETERMINATION THAT THE AGGREGATE OF THE SECURITIES IN THE PLAN
REPRESENTED THE VALUE OF THE PROPERTIES FOR REORGANIZATION PURPOSES AND
THAT, THROUGH PROSPECTIVE EARNINGS, THERE WAS ADEQUATE COVERAGE FOR THE
CHARGES.  THE LARGE ACCUMULATION OF FREE CASH WAS NOT DISTRIBUTED.  THE
PLAN WAS APPROVED BY THE DISTRICT COURT AND ACCEPTED BY ALL CREDITORS
ENTITLED TO VOTE EXCEPT THE HOLDERS OF GENERAL MORTGAGE BONDS.  THE
DISTRICT COURT HELD THAT THE LATTER'S REJECTION OF THE PLAN WAS NOT
"REASONABLY JUSTIFIED" AND CONFIRMED THE PLAN.  HELD: 

1.  THE ORDERS OF THE DISTRICT COURT APPROVING AND CONFIRMING THE
PLAN ARE AFFIRMED.  P. 536. 

2.  UNDER SEC. 77 OF THE BANKRUPTCY ACT, THE EXPERIENCE AND JUDGMENT
OF THE COMMISSION MUST BE RELIED UPON FOR FINAL DETERMINATIONS OF VALUE
AND OF MATTERS AFFECTING THE PUBLIC INTEREST, SUBJECT TO JUDICIAL
REVIEW TO ASSURE COMPLIANCE WITH CONSTITUTIONAL AND STATUTORY
REQUIREMENTS.  ECKER V. WESTERN PACIFIC R. CO., 318 U.S. 448; GROUP OF
INVESTORS V. MILWAUKEE R. CO., 318 U.S. 523.  P. 508. 

3.  THE COURTS ARE EMPOWERED TO REVIEW THE PLAN TO DETERMINE WHETHER
THE COMMISSION HAS FOLLOWED THE STATUTORY MANDATES OF SEC. 77(E) AND
HAD MATERIAL EVIDENCE TO SUPPORT ITS CONCLUSIONS.  ID. P. 509. 

4.  THE CONGRESSIONAL AUTHORIZATION FOR THE COMMISSION TO ELIMINATE
VALUELESS CLAIMS FROM PARTICIPATION IN REORGANIZATION IS A VALID
EXERCISE OF THE FEDERAL BANKRUPTCY POWER.  ID. P. 509. 

5.  THE COMMISSION'S JUDGMENT THAT THE EARNING PROSPECT DID NOT
JUSTIFY A GREATER CAPITALIZATION THAN THE ONE GIVEN IS CONTROLLING.  P.
515. 

6.  IT WAS NOT REQUIRED TO ADD, AND WOULD NOT BE JUSTIFIED IN ADDING,
TO THE CAPITALIZED VALUE THE AMOUNT OF EXPENDITURES FOR IMPROVEMENTS
MADE DURING THE REORGANIZATION PROCEEDINGS IF, IN THE EXERCISE OF SOUND
DISCRETION, IT FELT THAT THE REASONABLE PROSPECTIVE EARNINGS OF THE
ROAD, AFTER THE IMPROVEMENTS, DID NOT JUSTIFY IT.  P. 515. 

7.  THERE WAS AMPLE EVIDENCE TO JUSTIFY THE VALUATION MADE BY THE
COMMISSION.  PP. 512-516. 

8.  THE VALUATION HAVING BEEN BASED ON EARNINGS, THE SEGREGATION OF
THE SYSTEM EARNINGS TO EACH EXISTING LIEN AND THE ALLOCATION OF NEW
SECURITIES REPRESENTING THE SYSTEM VALUE TO EACH CLASS OF CLAIMANTS,
WAS IN FULL ACCORD WITH THE PRINCIPLE THAT SENIOR CREDITORS ARE TO
RETAIN THEIR RELATIVE PRIORITY OF POSITION IN A REORGANIZATION.  P.
517. 

9.  JUNIOR CLAIMS CAN RECEIVE NOTHING UNTIL SENIOR CLAIMS RECEIVE
SECURITIES OF A VALUE EQUAL TO THEIR INDEBTEDNESS.  P. 517. 

10.  WHEN THE COMMISSION MADE ITS ALLOCATIONS OF SECURITIES, IT DID
NOT FIND THAT THE CASH VALUE OF THOSE AWARDED SENIOR CLAIMANTS EQUALLED
THE FACE VALUE OF THEIR CLAIMS; AND IT DEFINITELY HAD IN MIND THAT ONE
THING THAT GAVE THEM COMPENSATION FOR THE ADMISSION OF JUNIOR CLAIMANTS
TO PARTICIPATION IN SECURITIES BEFORE THE SENIORS OBTAINED FULL CASH
PAYMENT WAS THEIR CHANCE TO SHARE IN THE UNLIMITED DIVIDENDS THAT MIGHT
BE EARNED AND PAID ON THE COMMON STOCK IN THE "LUSH YEARS," THUS TAKING
INTO ACCOUNT THE ABNORMAL EARNINGS DURING THE WAR.  P. 518. 

11.  THE IMPROVED PHYSICAL CONDITION OF THE ROAD THROUGH EXPENDITURES
OF THE TRUSTEES FOR PREVIOUSLY DEFERRED MAINTENANCE, IMPROVEMENTS AND
NEW EQUIPMENT NECESSARILY ENTERED INTO THE COMMISSION'S VALUATION OF
THE PROPERTY.  P. 518. 

12.  THAT THE CREDITORS WHO RECEIVED COMMON STOCK TO MAKE THEM WHOLE
OBTAINED WITH IT AN INTEREST IN ALL CASH ON HAND OR THAT MIGHT BE
ACCUMULATED WAS AN IMPORTANT FACTOR IN THE ALLOCATION OF THE NEW
SECURITIES.  PP. 518, 519. 

13.  THE SENIOR CREDITORS HAVING ACCEPTED THE PLAN AS FAIR AND
EQUITABLE AS BETWEEN THEMSELVES, IF THE METHOD AND RESULT OF VALUATION
ARE SOUND, THE ALLOCATION OF 10% OF THEIR CLAIM IN COMMON STOCK TO THE
JUNIOR CREDITORS FOLLOWS AS A MATTER OF COMPUTATION.  P. 519. 

14.  THE OBJECTION OF A STOCKHOLDER TO A VOTING TRUST FOR FUTURE
CONTROL OF THE DEBTOR IS INEFFECTIVE, BECAUSE THE STOCKHOLDER WAS
ELIMINATED FROM THE REORGANIZATION BY THE VALUATION OF THE PROPERTY AND
ALLOCATION OF SECURITIES.  P. 520. 

15.  THE COMMISSION'S ACTION IN FIXING THE EFFECTIVE DATE OF THE PLAN
AS JANUARY 1, 1943, WAS WITHIN ITS POWER.  P. 521. 

16.  ASSUMING THAT THE COURTS MAY SET ASIDE A PLAN WHICH WAS FAIR AND
EQUITABLE WHEN ADOPTED BY THE COMMISSION MERELY ON ACCOUNT OF
SUBSEQUENT CHANGES IN ECONOMIC CONDITIONS, THEY SHOULD NOT DO SO WHEN
THE CHANGES ARE OF THE KIND THAT WERE ENVISAGED AND CONSIDERED BY THE
COMMISSION IN ITS DELIBERATIONS UPON, OR EXPLANATIONS OF, THE PLAN. 
PP. 521, 522. 

17.  IT WOULD BE ERRONEOUS TO ASSUME THAT THE SENIOR BONDHOLDERS WERE
PAID IN FULL BY THE SECURITIES ALLOTTED TO THEM WITHOUT ALSO ACCEPTING
THE COMMISSION'S DETERMINATION THAT THE ASSETS REPRESENTED AS OF THE
EFFECTIVE DATE AND ALL SUBSEQUENT EARNINGS WERE A PART ALSO OF THE
COMMON STOCK THAT WAS AWARDED TO THEM; SINCE THE OPPORTUNITY TO
PARTICIPATE IN WAR EARNINGS AND IN THE ACCUMULATIONS OF CASH BEYOND
OPERATING FUND NEEDS WAS PART OF THEIR COMPENSATION FOR THEIR LOSS OF
POSITION.  PP. 522-524. 

18.  WHEN COMMON STOCK IS ISSUED IN PARTIAL SATISFACTION OF THE
CLAIMS OF SENIOR CREDITORS AND A REDUCTION OF SENIOR CAPITAL TAKES
PLACE AFTER THE ADOPTION OF THE PLAN BY THE USE OF ANTICIPATED EARNINGS
OR EXISTING CASH, THERE CAN BE NO CORRESPONDING READJUSTMENT OF JUNIOR
PARTICIPATION; BECAUSE ASSETS IN THE BALANCE SHEET AT THE ADOPTION OF
THE PLAN AND SUBSEQUENT EARNINGS ARE FOR THE BENEFIT OF STOCKHOLDERS IN
THE NEW COMPANY, THE SENIOR CLAIMANTS, SO THAT THEY MAY BE COMPENSATED
THROUGH THESE COMMON STOCK ADVANTAGES FOR THEIR LOSS OF PAYMENT IN FULL
IN CASH.  PP. 524, 525. 

19.  THE SETTLED RULE IN BANKRUPTCY PROCEEDINGS THAT A CREDITOR
SECURED BY THE PROPERTY OF OTHERS NEED NOT DEDUCT THE VALUE OF THAT
COLLATERAL OR ITS PROCEEDS IN PROVING HIS DEBT IS APPLICABLE IN
PROCEEDINGS UNDER SEC. 77.  P. 529. 

20.  A PROVISION IN A PLAN OF REORGANIZATION THAT THE TRUSTEE UNDER A
CERTAIN BOND ISSUE SECURED IN PART BY A LIEN ON STOCK OWNED BY A THIRD
PARTY SHALL BE PERMITTED TO OBTAIN THE RELEASE OF THE EQUITIES IN THE
STOCK AND DISTRIBUTE IT AMONG THE BONDHOLDERS OR TO ENFORCE ITS RIGHTS
AS PLEDGEE OF THE STOCK AND DISTRIBUTE THE PROCEEDS TO THE BONDHOLDERS
DID NOT CHANGE OR AFFECT EXISTING RIGHTS IN THE STOCK; AND THOSE RIGHTS
REMAINED SUBJECT TO JUDICIAL DETERMINATION.  THEREFORE, IT COULD NOT
RESULT IN THE HOLDERS OF THE BONDS SECURED THEREBY RECEIVING MORE THAN
THEY WERE ENTITLED TO NOR DEPRIVE THE HOLDERS OF A JUNIOR LIEN ON THE
STOCK OF ANY OF THEIR RIGHTS, EVEN THOUGH THE COMMISSION MADE NO
DEFINITE FINDING AS TO THE VALUE OF THE STOCK AND THE HOLDERS OF THE
SENIOR LIEN ON THE STOCK MAY HAVE BEEN FULLY COMPENSATED BY OTHER
PROVISIONS OF THE PLAN.  PP. 525-531. 

21.  THE PROVISIONS OF SEC. 77(E) FOR CONFIRMATION OF A PLAN OF
REORGANIZATION OVER THE CREDITORS' OBJECTION, IF THE REVIEWING COURT
FINDS THAT IT MAKES "ADEQUATE PROVISION FOR FAIR AND EQUITABLE
TREATMENT" OF THOSE REJECTING IT, THAT THEIR REJECTION IS NOT
"REASONABLY JUSTIFIED" AND THAT THE PLAN COMPLIES WITH THE REQUIREMENTS
OF THE SECTION, ARE WITHIN THE BANKRUPTCY POWERS OF CONGRESS.  P. 533. 

22.  THE FINDING OF THE DISTRICT COURT THAT THE PLAN MADE "ADEQUATE
PROVISION FOR FAIR AND EQUITABLE TREATMENT" OF THE DISSENTERS, AS OF
ITS EFFECTIVE DATE, WAS JUSTIFIED.  P. 533. 

23.  IN VIEW OF THE DISTRICT COURT'S FAMILIARITY WITH THE
REORGANIZATION, THIS FINDING HAS ESPECIAL WEIGHT WITH THIS COURT.  P.
533. 

24.  THE REJECTION OF THE PLAN BY THE HOLDERS OF GENERAL MORTGAGE
BONDS WAS NOT "REASONABLY JUSTIFIED" WITHIN THE MEANING OF SEC. 77(E). 
PP. 533-535. 

25.  IT IS THE DUTY OF THE COMMISSION TO PLAN REORGANIZATIONS WITH AN
EYE TO THE PUBLIC INTEREST AS WELL AS THE PRIVATE WELFARE OF CREDITORS
AND STOCKHOLDERS.  P. 535. 

26.  THE PUBLIC INTEREST IN AN EFFICIENT TRANSPORTATION SYSTEM
JUSTIFIES THE COMMISSION'S REQUIREMENTS FOR REASONABLE MAINTENANCE AND
IMPROVEMENTS OF THE PROPERTIES AND FOR A CAPITALIZATION WITH FAIR
PROSPECTS FOR DIVIDENDS ON ALL CLASSES OF SECURITIES.  P. 536. 

RECONSTRUCTION FINANCE CORPORATION ET AL. V. DENVER & RIO GRANDE
WESTERN RAILROAD CO. ET AL. 

NO. 278.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT* . 

*TOGETHER WITH NO. 279, RECONSTRUCTION FINANCE CORPORATION ET AL. V.
DENVER & SALT LAKE WESTERN RAILROAD CO. ET AL.; NO. 280, RECONSTRUCTION
FINANCE CORPORATION ET AL. V. CITY BANK FARMERS TRUST CO., TRUSTEE, ET
AL.; NO. 281, RECONSTRUCTION FINANCE CORPORATION ET AL. V. DENVER & RIO
GRANDE WESTERN RAILROAD CO. ET AL.; AND NO. 282, RECONSTRUCTION FINANCE
CORPORATION ET AL. V. THOMPSON, TRUSTEE, ET AL., ON CERTIORARI TO THE
SAME COURT, ARGUED AND DECIDED ON THE SAME DATES. 

THE INTERSTATE COMMERCE COMMISSION APPROVED A PLAN OF REORGANIZATION
OF A RAILROAD UNDER SEC. 77 OF THE BANKRUPTCY ACT.  254 I.C.C. 349. 
THE DISTRICT COURT APPROVED IT.  C.C.H. BANKRUPTCY LAW SERVICE
P54,562.  ALL CREDITORS ENTITLED TO VOTE ACCEPTED THE PLAN EXCEPT
HOLDERS OF THE GENERAL MORTGAGE BONDS.  THE DISTRICT COURT HELD THAT
THE LATTER'S REJECTION OF THE PLAN WAS NOT "REASONABLY JUSTIFIED" AND
CONFIRMED THE PLAN.  62 F.SUPP.  384.  THE CIRCUIT COURT OF APPEALS
REVERSED THE DISTRICT COURT AND REMANDED THE REORGANIZATION PROCEEDINGS
TO THE COMMISSION FOR FURTHER CONSIDERATION.  150 F.2D 28.  THIS COURT
GRANTED CERTIORARI.  326 U.S. 699.  THE JUDGMENT OF THE CIRCUIT COURT
OF APPEALS IS REVERSED; THE ORDERS OF THE DISTRICT COURT APPROVING AND
CONFIRMING THE PLAN ARE AFFIRMED; AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS.  P. 536. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS IN THESE FIVE CASES ARE THE OWNERS OF CLAIMS AGAINST
THE DEBTOR, DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, OR AGAINST A
SECONDARY DEBTOR, THE DENVER & SALT LAKE WESTERN RAILROAD COMPANY.  THE
RESPONDENTS ARE THE TWO DEBTORS JUST NAMED; CITY BANK FARMERS TRUST
COMPANY, TRUSTEE UNDER THE GENERAL MORTGAGE OF THE PRINCIPAL DEBTOR;
AND THE TRUSTEE OF THE MISSOURI PACIFIC RAILROAD COMPANY, A LARGE OWNER
OF COMMON STOCK OF THE PRINCIPAL DEBTOR. 

THE DEBTORS SOUGHT REORGANIZATION IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT OF COLORADO UNDER SEC. 77 OF THE BANKRUPTCY
ACT,  FN1  ON NOVEMBER 1, 1935.  THE INTERSTATE COMMERCE COMMISSION
APPROVED THE PLAN OF REORGANIZATION UNDER CONSIDERATION IN THIS REVIEW
ON JUNE 14, 1943.  FN2  THE DISTRICT COURT APPROVED THE PLAN OCTOBER
25, 1943.  FN3  IT WAS THEN SUBMITTED BY THE COMMISSION TO THE
CREDITORS OF THE CLASSES DEEMED ENTITLED TO VOTE FOR ACCEPTANCE OR
REJECTION OF THE PLAN AND A CERTIFICATE OF THE RESULT FILED IN THE
DISTRICT COURT ON JULY 15, 1944.  ALL CLASSES OF VOTING CREDITORS
APPROVED THE PLAN AS REQUIRED BY SEC. 77 EXCEPT THE HOLDERS OF THE
DENVER'S GENERAL MORTGAGE BONDS.  FN4  ON NOVEMBER 1, THE DISTRICT
COURT HELD THE REJECTION OF THE PLAN BY THE HOLDERS OF THE GENERAL
MORTGAGE WAS NOT REASONABLY JUSTIFIED  FN5  AND THEREAFTER CONFIRMED
THE PLAN ON NOVEMBER 29, 1944.  SEC. 77(E). 

THE PLAN PROVIDED FOR A REORGANIZATION AS OF JANUARY 1, 1943, BY THE
DENVER BY ADJUSTMENT OF ITS LIABILITIES TO ITS ASSETS WITH OR WITHOUT A
CONSOLIDATION WITH THE SALT LAKE AND THE SALT LAKE WESTERN TO FORM A
SYSTEM.  THE STOCK OF THE LATTER ROAD IS HELD BY THE DENVER.  THERE ARE
NO BONDS.  AS NO RULING THAT WE ARE ASKED OR REQUIRED TO MAKE TURNS
UPON WHETHER THE REORGANIZATION IS WITH OR WITHOUT THE SUGGESTED
CONSOLIDATION, WE NEED NOT GIVE FURTHER CONSIDERATION TO POSSIBLE
DIFFERENCES.  IN EITHER CASE, CREDITORS WITH SECURED CLAIMS AGAINST THE
REORGANIZED ROADS OR AGAINST THEIR PROPERTY WERE LEFT UNDISTURBED OR
ALLOCATED NEW SECURITIES OF THE NEW COMPANY, CONSISTING OF FIRST
MORTGAGE AND INCOME BONDS, PREFERRED AND COMMON STOCK, IN LOTS, IN FACE
AMOUNT OF THE SECURED CLAIMS EXCEPT FOR THE GENERAL MORTGAGE ISSUE,
THAT THE COMMISSION AND DISTRICT COURT DETERMINED, THROUGH ADOPTION OF
THE PLAN, WERE FAIR AND EQUITABLE IN THE LIGHT OF THE RESPECTIVE
PRIORITIES, LIENS AND COLLATERAL OF THE VARIOUS SECURED CLAIMS.  ALL OF
THE SECURITIES WERE GIVEN A PAR VALUE.  INTEREST PARTLY FIXED AND
INTEREST PARTLY CONTINGENT ON EARNINGS WAS USED TO GAIN PLAY IN ANNUAL
CHARGES.  THE PLAN ELIMINATED UNSECURED CLAIMS AND ALLOCATED COMMON
STOCK IN FACE AMOUNT OF TEN PER CENT OF THEIR CLAIM TO GENERAL MORTGAGE
BONDS OF THE DEBTOR.  ITS STOCKHOLDERS RECEIVED NOTHING.  IT WAS
DETERMINED THAT THE AGGREGATE OF THE SECURITIES IN THE PLAN REPRESENTED
THE VALUE OF THE PROPERTIES FOR REORGANIZATION PURPOSES AND THAT
THROUGH PROSPECTIVE EARNINGS THERE WAS ADEQUATE COVERAGE FOR THE
CHARGES.  FN6 

THE REVERSAL CAME FROM THE CIRCUIT COURT'S HOLDING, CONTRARY TO THE
COMMISSION AND THE DISTRICT COURT, THAT FREE CASH IN EXCESS OF
OPERATING CAPITAL NEEDS AND LARGE EARNINGS FROM WAR BUSINESS AFTER THE
DATE OF THE PLAN SHOULD BE FOR THE BENEFIT OF THE GENERAL BONDHOLDERS. 
150 F.2D 35-38.  THAT COURT FURTHER HELD THAT DECREASES IN DEBT BY CASH
PAYMENTS, WITH THE CONSEQUENT REDUCTION OF SECURITIES THAT WERE
REQUIRED TO BE ISSUED UNDER THE PLAN TO COVER SUCH DEBT CLAIMS, SHOULD
INURE TO THE BENEFIT OF THE SAME GENERAL BONDHOLDERS.  150 F.2D 38-39. 
THE CIRCUIT COURT DISAGREED ALSO WITH THE TREATMENT OF CERTAIN
COLLATERAL DEPOSITED BEHIND THE FIRST CONSOLIDATED MORTGAGE OF THE RIO
GRANDE WESTERN RAILWAY COMPANY AND SECONDARILY BEHIND OTHER ISSUES OF
THE DEBTOR.  THIS IS THE UTAH FUEL STOCK ISSUE HEREINAFTER DISCUSSED. 
THESE DIFFERENCES FROM THE CONCLUSIONS OF THE DISTRICT COURT LED THE
CIRCUIT COURT TO HOLD THAT THE GENERAL BONDHOLDERS WERE "REASONABLY
JUSTIFIED" IN REJECTING THE PLAN AND THAT THE DISTRICT COURT WAS
WITHOUT AUTHORITY TO CONFIRM THE PLAN OVER THEIR VETO.  SEC. 77(E). 

PETITIONERS ON JULY 30, 1945, SOUGHT A WRIT OF CERTIORARI TO REVERSE
THESE RULINGS OF THE CIRCUIT COURT AND, ON ACCOUNT OF THE IMPORTANCE OF
THE ISSUES IN THE ADMINISTRATION OF RAILROAD REORGANIZATION UNDER SEC.
77, WE GRANTED THEIR PETITION ON OCTOBER 8, 1945.  326 U.S. 699. 

THE BRIEFS OF ALL THE PARTIES HERE RESTATE THE QUESTIONS PRESENTED IN
THE PETITION FOR CERTIORARI ACCORDING TO THE EMPHASIS THE PARTICULAR
PARTY PLACES UPON POINTS OF CONTROVERSY.  AFTER A GENERAL CONSIDERATION
OF THE BACKGROUND OF THE PLAN AND RESPONDENTS' CONTENTIONS TO SUPPORT
THE JUDGMENT BESIDES THE DEFENSES APPLICABLE TO PETITIONERS'
CERTIORARI, WE SHALL GIVE ATTENTION TO EACH OF THE JUST STATED
DISAGREEMENTS BETWEEN THE DISTRICT AND APPELLATE COURT.  THIS WILL
COVER THE POINTS UNDER REVIEW. 

THE BASIC PROBLEMS OF RAILROAD REORGANIZATION UNDER SEC. 77 OF THE
BANKRUPTCY ACT HAVE BEEN SO RECENTLY CONSIDERED BY THIS COURT IN THE
WESTERN PACIFIC AND MILWAUKEE CASES THAT ONLY A SUMMARY REFERENCE TO
THEIR CONCLUSIONS ATTACKED BY RESPONDENTS NEED BE MADE NOW.  NO NEW
ENACTMENTS HAVE CHANGED THE LAW SINCE THOSE DECISIONS ON MARCH 15,
1943.  THE COMPLEXITIES OF THE REORGANIZATION OF A RAILROAD WITH
RESPONSIBILITY TO THE PUBLIC AND OBLIGATIONS TO ITS SECURITY HOLDERS
WERE RECOGNIZED.  THE IMPOSSIBILITY WITHOUT DESTRUCTION OF EFFICIENCY
AND VALUES OF REVERSING THE PROCESS OF INTEGRATION TO RESTORE THE PARTS
THAT NOW MAKE UP THE WHOLE OF A SYSTEM OF THEIR ORIGINAL OPERATIONAL
FUNCTION WAS UNDERSTOOD.  THE VARIOUS BOND ISSUES WITH DIFFERENT AND
OFTEN OVERLAPPING LIENS, WITH COMPETING CLAIMS FOR ALLOCATION OF
EARNINGS PENDING REORGANIZATION, PRESENTED HARD PROBLEMS FOR
LEGISLATIVE SOLUTION.  A FAIR, ADMINISTRATIVELY PRACTICAL AND LASTING
METHOD WAS SOUGHT.  BY PROVISIONS FOR ADJUSTMENT OF CREDITORS' CLAIMS,
CONGRESS INTENDED TO AVOID THE DELAYS, COSTS AND SACRIFICES OF
LIQUIDATION.  FN9  THE AGENCIES EMPLOYED BY CONGRESS TO ACCOMPLISH
REORGANIZATIONS UNDER SEC. 77 WERE THE INTERSTATE COMMERCE COMMISSION
AND THE COURTS.  THE ANSWER REACHED BY CONGRESS WAS THAT THE EXPERIENCE
AND JUDGMENT OF THE COMMISSION MUST BE RELIED UPON FOR FINAL
DETERMINATIONS OF VALUE AND OF MATTERS AFFECTING THE PUBLIC INTEREST,
SUBJECT TO JUDICIAL REVIEW TO ASSURE COMPLIANCE WITH CONSTITUTIONAL AND
STATUTORY REQUIREMENTS.  THIS WAS THE INTERPRETATION OF ALL MEMBERS OF
THIS COURT FROM THE LANGUAGE OF THE ACT AND THE EVIDENCE OF
CONGRESSIONAL PURPOSE IN THE HEARINGS, REPORTS AND DISCUSSION.  FN10
TO THE COURTS, CONGRESS CONFIDED THE POWER TO REVIEW THE PLAN TO
DETERMINE WHETHER THE COMMISSION HAS FOLLOWED THE STATUTORY MANDATES OF
SUBSECTION (E), 318 U.S. AT 477, AND WHETHER THE COMMISSION HAD
MATERIAL EVIDENCE TO SUPPORT ITS CONCLUSIONS.  318 U.S. AT 477;
CONCURRING OPINION AT 512. 

AT THIS POINT, WE RESTATE OUR CONCLUSION REACHED IN THE FORMER CASES
THAT THE CONGRESSIONAL AUTHORITY TO THE COMMISSION TO ELIMINATE
VALUELESS CLAIMS FROM PARTICIPATION IN REORGANIZATION IS A VALID
EXERCISE OF THE FEDERAL BANKRUPTCY POWER.  SECTION 77 WAS DIRECTED AT
THE RELIEF OF DEBTOR RAILROADS.  SEC. 73, 47 STAT. 1467.  LIQUIDATION
IN DEPRESSION PERIODS MEANT THAT LARGE PORTIONS OF DEBTS, AS WELL AS
STOCK INTERESTS IN THE PROPERTIES, WOULD BE IRRETRIEVABLY LOST TO THEIR
HOLDERS, WHILE REORGANIZATION ON A CAPITALIZATION THAT ESTIMATED WHAT
NORMAL INCOME WOULD SUPPORT MEANT THE SALVAGE OF SOUND VALUES.  WE SEE
NO MORE CONSTITUTIONAL IMPEDIMENT TO THE ELIMINATION OF CLAIMS AGAINST
RAILROAD DEBTORS BY THE INTERSTATE COMMERCE COMMISSION'S DETERMINATION
OF VALUES, WITH JUDICIAL REVIEW AS TO THE SUFFICIENCY OF THE EVIDENCE
AND COMPLIANCE WITH STATUTORY STANDARDS, THAN WE DO TO THEIR
ELIMINATION BY AN ACCEPTED BID IN A DEPRESSION MARKET.  FN11  THERE IS
NO OCCASION HERE TO REEXAMINE FURTHER THESE RECENT HOLDINGS OF THIS
COURT IN THE WESTERN PACIFIC AND MILWAUKEE REORGANIZATIONS. 

IN EXAMINING THE CONTENTIONS OF PETITIONERS AS TO THE ALLEGED ERRORS
OF THE CIRCUIT COURT OF APPEALS, WE MUST APPROACH THE PROBLEMS IN
ACCORDANCE WITH OUR REVIEWING AUTHORITY UNDER SEC. 77.  THAT SECTION
EMBODIES THE METHOD THAT CONGRESS SELECTED IN 1933  FN12  AND IMPROVED
IN 1935  FN13 TO PUT THE RAILROAD TRANSPORTATION SYSTEM OF THE COUNTRY
IN ORDER TO MEET ITS DEBTS AND PERFORM ITS DUTIES TO THE PUBLIC AFTER
THE HARD YEARS OF THE RECENT DEPRESSION.  OUR CONSTRUCTIONS OF THE
CHIEF PROVISIONS OF THE SECTION WERE HANDED DOWN IN MARCH, 1943. 
ALTHOUGH THE RESULTS OF REORGANIZATIONS UNDER THE SECTION, AS THUS
CONSTRUED, HAVE BEEN CRITICIZED AS UNFORTUNATE AND CHANGES HAVE BEEN
SUGGESTED, NO DIFFERENT LEGISLATION HAS BEEN ENACTED.  FN14  INDEED A
DIFFERENT METHOD FOR REORGANIZATION, ENACTED IN 1939 AND DESIGNED TO
MEET THE REQUIREMENTS OF RAILROADS NOT IN NEED OF FINANCIAL
REORGANIZATION OF THE CHARACTER PROVIDED BY SEC. 77 BUT ONLY OF AN
OPPORTUNITY FOR VOLUNTARY ADJUSTMENTS WITH THEIR CREDITORS, TERMINATED
ON JULY 31, 1940, AND A COMPARABLE PROVISION MADE IN 1942 WAS ALLOWED
TO LAPSE ON NOVEMBER 1, 1945.  FN15  THIS SITUATION LEAVES CLEAR THE
DUTY OF THE AGENCIES OF THE GOVERNMENT ENTRUSTED WITH THE HANDLING OF
REORGANIZATIONS UNDER SEC. 77, INCLUDING THIS COURT, TO ADMINISTER ITS
PROVISIONS ACCORDING TO THEIR BEST UNDERSTANDING OF THE PURPOSES OF
CONGRESS AS EXPRESSED IN THE WORDS OF SEC. 77 READ IN THE LIGHT OF THE
CONTEMPORANEOUS DISCUSSION IN CONGRESS.  CHANGES IN ECONOMIC CONDITIONS
CANNOT AFFECT THE POWERS OF THE REORGANIZATION AGENCIES EVEN THOUGH
SUCH CHANGES MAY REQUIRE A REEXAMINATION INTO THE PRESENT FAIRNESS OF
THE FORMER EXERCISE OF THOSE POWERS. 

VALUATION.  THE DENVER & RIO GRANDE WESTERN, THE PRINCIPAL DEBTOR, IS
AN IMPORTANT LINK IN TRANSCONTINENTAL TRANSPORTATION.  FN16  THE RECENT
AVAILABILITY TO THE DEBTOR OF THE MOFFAT TUNNEL AND THE DOTSERO CUT-OFF
(1934) IMPROVES ITS STRATEGIC POSITION IN THE COMPETITION FOR
"OVERHEAD" OR "BRIDGE TRAFFIC," THAT IS, TRAFFIC THAT IS CONSIGNED FROM
AND DESTINED TO POINTS BEYOND ITS LINES.  THE TRAFFIC ORIGINATING OR
TERMINATING ON ITS LINES IS MIXED IN CHARACTER AND VARIES WITH THE
GENERAL PROSPERITY OF THE REGION. 

THE PRESENT DENVER, THE PRINCIPAL DEBTOR, WAS ORGANIZED IN 1920.  IT
SUCCEEDED THE DENVER & RIO GRANDE RAILROAD COMPANY OF 1908 WHICH HAD IN
ITS TURN ACQUIRED THE PROPERTY OF THE RIO GRANDE WESTERN RAILWAY
COMPANY, OWNING THE WESTERN PORTION OF THE PRESENT DEBTOR'S LINES, AND
OF THE DENVER & RIO GRANDE RAILROAD COMPANY OF 1886, OWNING THE EASTERN
PORTION OF THE PRESENT DEBTOR'S LINES.  A CONNECTION BETWEEN THE TWO
PORTIONS, RIO GRANDE JUNCTION RAILWAY, IS UNDER LEASE TO THE DEBTOR
WHICH, AS LESSEE AND A STOCKHOLDER, GUARANTEES THE JUNCTION BONDS. 
SUBSTANTIALLY ALL OF THE CAPITAL STOCKS OF THE SALT LAKE AND SALT LAKE
WESTERN, AND VARIOUS OTHER BRANCH LINES ARE OWNED BY THE DEBTOR.  FN17
THESE CORPORATE ARRANGEMENTS FOR THE OPERATIONS OF THE DEBTOR HAVE
RESULTED IN THE ASSUMPTION OR CREATION BY THE DEBTOR OF THE CLAIMS OF
THE VARIOUS ISSUES, LISTED IN NOTE 6, SUPRA. 

JUST AFTER THESE REORGANIZATION PROCEEDINGS BEGAN, DECEMBER 31, 1935,
THE DEBTOR'S REPORT SHOWED THAT ITS LONGTERM DEBT WAS $120,541,000, AND
ITS CURRENT LIABILITIES $24,990,901.63.  IT HAD CURRENT ASSETS,
INCLUDING CASH $1,257,943.43, OF $5,966,666.93.  AT THE TIME THE PLAN
BECAME EFFECTIVE, THE REPORT, AS OF DECEMBER 31, 1942, SHOWED LONG-TERM
DEBT OF $130,264,826.65 AND CURRENT LIABILITIES OF $14,172,575.50, AND
IN ADDITION DEFERRED LIABILITIES, CHIEFLY MATURED INTEREST IN DEFAULT
OF $45,582,132.66.  THERE WERE CURRENT ASSETS, INCLUDING CASH
$10,850,149.96, OF $20,983,652.54.  AS OF DECEMBER 31, 1944, THESE
ITEMS WERE: LONG-TERM DEBT $129,358,337.79, CURRENT LIABILITIES
$20,539,637.83, AND DEFERRED LIABILITIES $55,310,151.80.  THE CURRENT
ASSETS WERE $32,665,501.33, INCLUDING $19,142,626.96 IN CASH.    DURING
THE PERIOD EXAMINED THE INCOME OF THE SYSTEM AVAILABLE FOR INTEREST WAS
FOUND BY THE COMMISSION AT ITS LOWEST IN 1936-1938.  AFTER ADJUSTMENT
THIS WAS $2,893,255.  233 I.C.C. AT 552.  IN 1941 THERE WAS
$5,019,436.  254 I.C.C. AT 10.  WHEN THE PRESENT PLAN WAS APPROVED BY
THE COMMISSION IN JUNE, 1943, THE 1942 INCOME AVAILABLE FOR INTEREST
WAS RECOGNIZED BUT THE CONTINUANCE OF SUCH EARNING POWER WAS THOUGHT TO
BE NEGATIVED BY ANY SOUND FORECAST.  FN18  254 I.C.C. AT 356. 

EARNINGS DURING THE TRUSTEESHIP WERE USED TO IMPROVE THE DEBTOR
RAILROAD.  WHEN THE VOTE WAS TAKEN IN 1944, THE REAL ESTATE AND
EQUIPMENT ACCOUNT SHOWED CHARGES OF $43,291,513 DURING THE
TRUSTEESHIP.  AN ESTIMATED TEN MILLION OF IT WAS BETWEEN THE
COMMISSION'S APPROVAL OF THE PLAN, JUNE, 1943, AND THE COMMISSION'S
CERTIFICATION ON JULY 15, 1944, TO THE COURT OF THE VOTE BY CLAIMANTS. 
SEE 254 I.C.C. AT 354 AND 382 FOR EXPLANATION OF NEW EQUIPMENT PROGRAM
TO MEET THE WAR SITUATION.  THE RETIREMENTS ARE SAID BY THE RESPONDENT
TRUSTEE TO HAVE BEEN ABOUT $13,000,000, LEAVING A NET ADDITION TO
CAPITAL ACCOUNT OF $30,000,000.  RESPONDENTS URGE THAT SINCE
CAPITALIZATION WAS NOT SUBSTANTIALLY INCREASED BY THE COMMISSION
BETWEEN 1938, WHEN THE FIRST DRAFT OF A PLAN CAME FROM THE COMMISSION'S
STAFF, AND 1943, THE JUNIOR CREDITORS GOT LITTLE OR NOTHING FOR THIS
INVESTMENT.  THE IMPROVEMENTS MAY HAVE BEEN WISE OR UNWISE.  THAT
QUESTION IS NOT BEFORE US.  RAILROADS, EVEN IN REORGANIZATIONS, MUST
MAKE ADDITIONS TO TAKE CARE OF PUBLIC NEEDS OR TO LOWER OPERATING
COSTS.  SEE 62 F.SUPP.  389.  THE SENIOR BOND INTEREST CONTINUED TO
ACCUMULATE DURING THIS PERIOD.  AS THE CAPITALIZATION WAS NOT INCREASED
PARI PASSU WITH THE PURCHASES, THE HOLDERS OF JUNIOR SECURITIES
RECEIVED LESS PARTICIPATION.  THE COMMISSION DID NOT CONSIDER THAT THE
EARNING PROSPECT JUSTIFIED A GREATER CAPITALIZATION THAN THE ONE GIVEN
AND WE THINK ITS JUDGMENT CONTROLS THE VALUATION.  AS WAS SAID BY THE
CIRCUIT COURT OF APPEALS IN IN RE DENVER & R.G.W.R. CO., 150 F.2D AT
38: 

"NEITHER WAS THE COMMISSION COMPELLED TO, NOR WOULD IT BE JUSTIFIED
IN ADDING THE AMOUNT OF THESE EXPENDITURES TO THE CAPITALIZED VALUE IF
IN THE EXERCISE OF SOUND DISCRETION IT FELT THAT THE REASONABLE
PROSPECTIVE EARNINGS OF THE ROAD, AFTER THE IMPROVEMENTS DID NOT
JUSTIFY IT. HOWEVER, IN THE FACE OF ALL THIS, AFTER SATISFYING IN FULL
THE CLAIMS OF THE SENIOR BONDHOLDERS, THE PLAN OF REORGANIZATION SHOULD
HAVE MADE SURE THAT ALL EXCESS CURRENT ASSETS, AS WELL AS ALL EXCESS
WAR PROFITS YET TO ACCRUE, WOULD GO TO THE GENERAL BONDHOLDERS." 

THE LAST SENTENCE, WE THINK, HAS THE VICE OF OVERLOOKING THE REASON
THE COMMISSION GAVE COMMON STOCK TO THE SENIORS.  SEE DISCUSSION UNDER
ALLOCATION OF SECURITIES. 

WE NOTE ALSO THE CONTENTION THAT THE POSSIBILITY OF A NATIONAL INCOME
MUCH HIGHER AND INTEREST RATES MUCH LOWER THAN BEFORE WORLD WAR II
SHOULD AFFECT VALUATION BASED ON PROSPECTIVE EARNINGS.  THOSE FACTORS,
WE THINK, WERE BEFORE THE COMMISSION WHEN IT MADE ITS EARNINGS
ESTIMATE. 

THE COMMISSION REACHED ITS DETERMINATION OF A SOUND CAPITAL STRUCTURE
FOR THE COMBINED PROPERTIES WITH THESE FIGURES ON EARNINGS AND
INVESTMENTS BEFORE IT.  IN ADDITION, OF COURSE, THE COMMISSION HAD
COMPLETE STATISTICAL INFORMATION TO GUIDE IT FROM ITS BUREAU OF
VALUATION AND ITS OTHER SECTIONS DEALING WITH TRAFFIC, RATES, EARNINGS,
INTEREST, ET CETERA.  THE DISCUSSION BY THE COMMISSION WILL BE FOUND IN
ITS PRINTED VOLUMES LISTED IN NOTE 2.  PROCEEDING UPON THE PRINCIPLE
ACCEPTED IN THE WESTERN PACIFIC AND MILWAUKEE CASES,  FN19  THAT
CAPITALIZATION BASED UPON EARNINGS IS A PERMISSIBLE METHOD OF VALUATION
IN REORGANIZATION, THE COMMISSION FIXED $155,173,127 AS THE SOUND
CAPITALIZATION.  THIS CAPITALIZATION UNDER THE TERMS OF THE ISSUES,
WITH PROVISIONS FOR A CAPITAL FUND AND THE SINKING FUNDS, CARRIES
ANNUAL CHARGES AT RATES VARYING WITH THE SECURITY OF $6,211,250 BEFORE
DIVIDENDS ON COMMON.  THIS PRESENT ANNUAL CHARGE, PLUS, LET US ASSUME,
FIVE PER CENT ANNUALLY UPON THE COMMON, $1,758,379, OR A TOTAL OF
$7,969,629, IS THE BASIC FIGURE TO BE APPLIED, WITH ADJUSTMENTS FOR THE
VARIABLE FACTORS, TO EARNINGS, PAST OR PROSPECTIVE, AVAILABLE FOR
INTEREST AND DIVIDENDS, AS AN AID TO DETERMINE THE FAIRNESS OF THE
PRESENT VALUATION.  SEE NOTE 6.  THE DECISION WAS UNANIMOUS EXCEPT FOR
ONE COMMISSIONER WHO CONSIDERED THE VALUATION TOO HIGH BY TEN PER CENT.
254 I.C.C. AT 379.  THERE CAN BE NO DOUBT THAT AS OF JUNE, 1943, THERE
WAS AMPLE EVIDENCE TO JUSTIFY THE VALUATION MADE BY THE COMMISSION. 

ALLOCATION OF SECURITIES.  WITHIN THE FRAMEWORK OF THAT VALUATION,
THE COMMISSION ALLOTTED THE AVAILABLE SECURITIES TO THE CLAIMANTS. 
SECURITIES, INCLUDING THE COMMON STOCK, WERE GIVEN A FACE VALUE.  THE
AGGREGATE WAS TOO SMALL TO ALLOW ANYTHING TO FORMER STOCKHOLDERS.  FN20
THUS THEY WERE ELIMINATED FROM THE REORGANIZATION.  FN21  FOR THE
HOLDERS OF THE GENERAL BONDS, COMMON STOCK WAS AVAILABLE TO THE AMOUNT
OF TEN PER CENT ONLY OF THEIR CLAIM.  FN22  A GLANCE AT THE PROPOSED
DISTRIBUTION IN NOTE 6 WILL SHOW THAT THE CLAIMANTS DID NOT RECEIVE ALL
THE NEW SENIOR SECURITIES IN THE STRICT ORDER OF THEIR OLD PRIORITIES. 

THE VALUE OF A LIEN ON A PART OF A RAILROAD WHEN THE VALUATION IS
MADE FROM EARNINGS CANNOT BE FIXED SOLELY ON A MILEAGE BASIS.  NOR IS
IT PRACTICABLE TO ISSUE NEW SECURITIES WITH A LIEN LIMITED TO THE
PROPERTY THAT WAS COVERED BY THE OLD LIEN.  THERE MUST BE SEGREGATION
OF THE SYSTEM EARNINGS TO EACH EXISTING LIEN AND ALLOCATION OF
SECURITIES REPRESENTING THE SYSTEM VALUE TO EACH CLASS OF CLAIMANTS. 
THIS WAS DONE HERE AS SHOWN IN THE SECOND TABLE IN NOTE 6.  FN23  SUCH
A METHOD IS IN FULL ACCORD WITH THE PRINCIPLE THAT SENIOR CREDITORS ARE
TO RETAIN THEIR RELATIVE PRIORITY OF POSITION IN A REORGANIZATION. 
GROUP OF INVESTORS V. MILWAUKEE R. CO., 318 U.S. AT 561-64. 
FURTHERMORE, JUNIOR CLAIMS CAN RECEIVE NOTHING UNTIL THE SENIOR CLAIMS
RECEIVE SECURITIES OF A WORTH OR VALUE EQUAL TO THEIR INDEBTEDNESS. 
318 U.S. AT 483; 318 U.S. AT 569.  THE GENERALS ARE DEFINITELY JUNIOR. 
233 I.C.C. AT 524. 

THE COMMISSION DID NOT MAKE A FINDING THAT THE CASH VALUE OF THE
SECURITIES AWARDED THE SENIOR CLAIMANTS AS OF THE EFFECTIVE DATE OF THE
PLAN EQUALLED THE FACE OF THE CLAIMS.  IT DID, HOWEVER, CAREFULLY STATE
ITS REASONS FOR CONCLUDING THAT THE COMPENSATION "FLOWING UNDER THE
PLAN TO THE VARIOUS CLASSES OF BONDHOLDERS FOR THE RIGHTS SURRENDERED
BY THEM" WAS ADEQUATE IN THE LIGHT OF THE FULL PRIORITY RULE.  254
I.C.C. AT 360.  FOR THOSE CLASSES, OTHER THAN THE JUNIOR GENERALS, THAT
RECEIVED COMMON STOCK, THE COMMISSION SAID THAT THE POSSIBILITY OF
"UNLIMITED DIVIDENDS ON COMMON STOCK" WAS A FACTOR IN OFFSETTING LOSS
OF POSITION.  FN24  THUS IT IS CLEAR THAT WHEN THE COMMISSION MADE ITS
ALLOCATIONS IT HAD DEFINITELY IN MIND THAT ONE THING THAT GAVE THE
SENIOR CREDITORS COMPENSATION FOR THE ADMISSION OF JUNIOR CLAIMANTS TO
PARTICIPATION IN SECURITIES BEFORE THE SENIORS OBTAINED FULL CASH
PAYMENT WAS THEIR CHANCE TO SHARE IN THE UNLIMITED DIVIDENDS THAT MIGHT
BE EARNED AND PAID ON THE COMMON STOCK TO HAVE A PART IN THE "LUSH
YEARS."  IT SHOULD BE NOTED THAT INCOME APPLICABLE TO DIVIDENDS WAS AT
ITS HIGHEST IN 1942 PRIOR TO THE APPROVAL OF THE PLAN BY THE COMMISSION
IN JUNE, 1943.  THEREFORE THE ABNORMAL EARNINGS OF 1942 WERE IN THE
COMMISSION'S CONTEMPLATION WHEN IT SPOKE OF THE OPPORTUNITIES FOR
"UNLIMITED DIVIDENDS."  ITS DISCUSSION OF THE PLAN ASSUMED THAT 1943
AVAILABLE EARNINGS MIGHT BE AS LARGE.  254 I.C.C. AT 355. 

THE IMPROVED PHYSICAL CONDITION OF THE ROAD THROUGH EXPENDITURES OF
THE TRUSTEES FOR PREVIOUSLY DEFERRED MAINTENANCE, IMPROVEMENTS AND NEW
EQUIPMENT WAS BEFORE THE COMMISSION AND NECESSARILY ENTERED INTO THEIR
VALUATION OF THE PROPERTY.  233 I.C.C. 531. 

THERE IS ANOTHER IMPORTANT FACTOR, COROLLARY TO STOCK OWNERSHIP, TO
BE NOTED IN THE COMMISSION'S ALLOCATION OF THESE SECURITIES.  THIS
FACTOR IS THAT THE CREDITORS WHO RECEIVED COMMON STOCK TO MAKE THEM
WHOLE OBTAINED WITH THAT COMMON STOCK AN INTEREST IN ALL CASH ON HAND
OR ALL CASH THAT MIGHT BE ACCUMULATED.  OF COURSE, THE COMMISSION
THOROUGHLY UNDERSTOOD THIS.  IN FACT, IT REFERRED TO THE TEN MILLION
PLUS OF CASH ON HAND AS OF JANUARY 1, 1943.  254 I.C.C. 353. 
IMMEDIATELY FOLLOWING THIS REFERENCE IS A FULL DISCUSSION OF THE CASH
NEEDS OF THE ROAD FOR THE YEAR 1943, INCLUDING ADDITIONS, BETTERMENTS
AND NEW EQUIPMENT, AND THE AMOUNT WHICH IT WAS ESTIMATED WOULD BE IN
THE TREASURY AT THE END OF THE YEAR.  THAT WAS $15,600,000.  THIS CASH
WOULD BE REFLECTED IN THE VALUE OF THE COMMON STOCK.  THE PETITIONER
STATES THAT THE HIGHEST WHEN-ISSUED STOCK EXCHANGE PRICE IN 1945 FOR
THE COMMON STOCK WAS $31 1/2, PAR $100.  SEE COMMERCIAL AND FINANCIAL
CHRONICLE, MAY 13, 1946, P. 2618, WHERE THE COMMON IS QUOTED AT 29 BID,
31 ASKED.  CASH, MATERIAL AND SUPPLIES, AS WELL AS ALL OTHER ASSETS AND
ALL LIABILITIES OF THE DEBTOR, WERE REPRESENTED BY THE SECURITIES.  IF
THERE IS MORE CASH ON HAND THAN NEEDED FOR TAXES, EXPENSES AND PROPER
IMPROVEMENTS, IT IS AT THE DISPOSAL OF THE COMMON STOCKHOLDERS.  IF
MONEY WAS USED TO PAY INDEBTEDNESS, THERE WOULD BE A CORRESPONDING
REDUCTION IN THE CAPITAL STRUCTURE.  THEREFORE, THE PLAN PROVIDED, 254
I.C.C. AT 386: 

"THE NEW COMPANY SHALL BE DEEMED TO HAVE COME INTO POSSESSION OF THE
PROPERTIES AS OF THE EFFECTIVE DATE OF THE PLAN. 

"...  THE CAPITALIZATION OF THE NEW COMPANY, AS OF JANUARY 1, 1943,
AFTER CONSUMMATION OF THE PLAN  ...  SHALL CONSIST SUBSTANTIALLY OF THE
FOLLOWING SECURITIES, EXCLUDING THOSE TO BE PLEDGED, THE AMOUNTS STATED
BEING SUBJECT TO REDUCTION TO THE EXTENT, IF ANY, THAT MATURED INTEREST
PROPOSED TO BE FUNDED IN THE PLAN IS PAID, AND AS EQUIPMENT OBLIGATIONS
OR OTHER LIABILITIES ARE PAID OR REDUCED  ..." 

IT IS ACCEPTED BY THE SENIOR CLAIMANTS THAT THE PLAN IS FAIR AND
EQUITABLE AS BETWEEN THEMSELVES.  IF WE ARE CORRECT IN OUR CONCLUSION
THAT THE METHOD AND RESULT OF VALUATION IS SOUND, THE ALLOCATION OF TEN
PER CENT OF THEIR CLAIM IN COMMON STOCK TO THE GENERALS FOLLOWS AS A
MATTER OF COMPUTATION. 

IT WOULD ALSO FOLLOW THAT THE OBJECTION OF A STOCKHOLDER, THE
MISSOURI PACIFIC RAILROAD COMPANY, THROUGH ITS TRUSTEE IN
REORGANIZATION, TO A VOTING TRUST FOR FUTURE CONTROL OF THE DEBTOR
WOULD BE INEFFECTIVE BECAUSE THIS STOCKHOLDER IS ELIMINATED FROM THE
REORGANIZATION BY THE VALUATION OF THE PROPERTY AND ALLOCATION OF
SECURITIES.  FOR THE COMMISSION'S REASONS FOR CREATING A VOTING TRUST
SEE 233 I.C.C. AT 581, 254 I.C.C. AT 33, 35, 367. 

CASH AND WAR EARNINGS.  THE CIRCUIT COURT OF APPEALS WAS OF THE VIEW
THAT WAR EARNINGS WERE OF "VERY LITTLE VALUE IN ESTIMATING THE PROBABLE
FUTURE EARNINGS OF THIS PROPERTY IN THE PEACE ECONOMY WHICH IS TO COME"
AND THAT THE COMMISSION WAS WELL WITHIN ITS RIGHT IN APPRAISING THEM
LIGHTLY.  150 F.2D AT 34.  THIS WAS AFTER THE SEVENTEEN MILLION
EARNINGS OF THE TOP YEAR 1942.  THE APPELLATE COURT AGREED, TOO, THAT
EXCESS CURRENT ASSETS SHOULD NOT BE CAPITALIZED AND THAT IMPROVEMENTS
MADE DURING THE TRUSTEESHIP FOR REORGANIZATION HAD BEEN CONSIDERED BY
THE COMMISSION AND DISTRICT COURT IN FIXING THEIR VALUATION BY PAST AND
PROSPECTIVE EARNINGS.  150 F.2D AT 35.  THE APPELLATE COURT THEN MADE
THE FOLLOWING RULING: 

"THE SENIOR BONDHOLDERS WERE PAID IN FULL.  THEY RECEIVED ALL THE NEW
SECURITIES AND MOST OF THE COMMON STOCK.  NINETY PER CENT OF THE
GENERAL BONDHOLDERS' CLAIMS WERE WIPED OUT.  THEY RECEIVED ONLY A SMALL
AMOUNT OF COMMON STOCK, TEN PER CENT OF THEIR TOTAL CLAIM.  ADEQUATE
OPERATING FUNDS ARE ESSENTIAL TO THE OPERATION OF A RAILROAD.  THE
SENIOR BONDHOLDERS WERE ENTITLED TO RECEIVE IN ADDITION TO THE FULL
AMOUNT OF THEIR CLAIMS, WORKING CAPITAL SUFFICIENT FOR PROPER AND
EFFICIENT OPERATION OF THE RAILROAD.  BUT ANYTHING IN EXCESS OF WHAT
WAS REASONABLY NECESSARY FOR THIS PURPOSE CONSTITUTED ASSETS OF THE
INSOLVENT CORPORATION WHICH BELONGED TO THE REMAINING CREDITORS. 

"WE THINK IT IS APPARENT FROM THE RECORD THAT THERE WERE CURRENT
ASSETS ON HAND CONSISTING OF CASH AND SECURITIES IN EXCESS OF WHAT WAS
NEEDED FOR THE EFFICIENT OPERATION OF THE ROAD.  AS POINTED OUT, THE
WORKING CAPITAL OF THE DEBTOR HAD INCREASED FROM A DEFICIT OF
$9,727,230 AS OF DECEMBER 31, 1935, TO A SURPLUS OF $12,125,863.50 AS
OF DECEMBER 31, 1944.  WHILE THESE INCREASED NET EARNINGS ARE DUE IN
LARGE PART TO THE WAR AND WILL NOT CONTINUE AFTER THE END OF THE WAR,
AND MAY THEREFORE BE DISREGARDED IN SETTING UP THE CAPITALIZED
STRUCTURE BASED UPON PROSPECTIVE EARNINGS, WE CANNOT DISREGARD THE FACT
THAT THESE HUGE SURPLUSES ACTUALLY EXIST.  THEIR EXISTENCE IS AN
ACCOMPLISHED FACT.  IT IS ALSO OBVIOUS THAT SURPLUSES WILL CONTINUE TO
PILE UP FOR A REASONABLE TIME YET TO COME.  WE THINK ANY PLAN WHICH
FAILS TO TAKE THIS INTO ACCOUNT AND WHICH GIVES THE SENIOR BONDHOLDERS
THEIR CLAIMS IN FULL BY SUBSTANTIALLY DELIVERING THE ROAD TO THEM, AND
GIVES THEM THE SURPLUS CASH ACTUALLY ON HAND AND FURTHER ENABLES THEM
TO RECEIVE IN ADDITION THE EXCESS WAR PROFITS WHICH ARE REASONABLY SURE
TO COME, IS INHERENTLY INEQUITABLE AND UNFAIR, SO LONG AS THERE ARE
CLASSES OF CREDITORS WHOSE CLAIMS ARE NOT FULLY SATISFIED." 

IN OUR JUDGMENT THIS HOLDING IS ERRONEOUS. 

THE EFFECTIVE DATE OF THE PLAN WAS FIXED BY THE COMMISSION AS JANUARY
1, 1943.  THIS WAS IN ITS POWER.  FN25  THE ALLOCATION OF THE
SECURITIES TOOK INTO CONSIDERATION THE INTEREST OF THE SECURED CLAIMS
TO THAT DATE.  ANY GAIN OR ANY LOSS AFTER THAT TIME WAS A BENEFIT OR AN
INJURY TO THE NEW COMMON STOCKHOLDERS AND THEN SOMETIMES TO SECURITY
HOLDERS IN POSITIONS SENIOR TO THEM.  ASSUMING THAT THE COURTS, AS
COURTS WITH EQUITY POWERS IN A BANKRUPTCY MATTER, MIGHT SET ASIDE A
PLAN, FAIR AND EQUITABLE WHEN ADOPTED BY THE COMMISSION, MERELY ON
ACCOUNT OF SUBSEQUENT CHANGES IN ECONOMIC CONDITIONS OF THE REGION OR
THE NATION N26, IT SHOULD NOT BE DONE WHEN THE CHANGES ARE OF THE KIND
THAT WERE ENVISAGED AND CONSIDERED BY THE COMMISSION IN ITS
DELIBERATIONS UPON OR EXPLANATIONS OF THE PLAN.    WE HAVE POINTED OUT
IN THE SECTION OF THIS OPINION DEALING WITH THE ALLOCATIONS OF THE
SECURITIES THAT A PART OF THE COMPENSATION TO SENIOR CLAIMANTS FOR
THEIR LOSS OF POSITION WAS THE OPPORTUNITY TO PARTICIPATE IN WAR
EARNINGS.  THIS WAS UNDERSTOOD BY THE DISTRICT COURT  FN27  AND THE
COMMISSION N28.  ACCUMULATIONS OF CASH BEYOND OPERATING FUND NEEDS ARE
IN THE SAME CATEGORY.  IN DEALING WITH THE PROBLEM, THE COMMISSION
NOTED THAT A FIVE PER CENT DIVIDEND ON THE AUTHORIZED COMMON WOULD
REQUIRE AN INCOME AVAILABLE FOR INTEREST AND DIVIDENDS OF $7,969,629. 
THE TRUSTEE FOR GENERAL BONDS CLAIMS NO SUCH EARNINGS BETWEEN 1929 AND
1942.  EVEN BEFORE THE TRANSPORTATION DIFFICULTIES OF 1946, IT WAS
OBVIOUS THAT THE COMMISSION'S JUDGMENT WAS BEING CONFIRMED BY EVENTS. 
SEE NOTE 18, SUPRA.  FN29 

THE ERROR OF THE CIRCUIT COURT IN ITS HOLDINGS SET OUT ABOVE LIES IN
ITS ASSUMPTION THAT THE SENIOR BONDHOLDERS WERE PAID IN FULL BY THE
SECURITIES ALLOTTED TO THEM WITHOUT ALSO ACCEPTING THE DETERMINATION OF
THE COMMISSION THAT THE ASSETS REPRESENTED AS OF JANUARY 1, 1943, AND
ALL SUBSEQUENT EARNINGS WERE A PART ALSO OF THE COMMON STOCK THAT WAS
AWARDED THE SENIOR BONDHOLDERS. 

DECREASES IN SENIOR DEBT.  THE PLAN PROVIDES FOR SECURITIES TO TAKE
THE PLACE OF THE RIO GRANDE JUNCTION'S FIRST 5'S IN THE FACE AMOUNT OF
$2,758,333 AND FOR THE ASSUMPTION BY THE REORGANIZED ROAD OF $5,758,000
EQUIPMENT OBLIGATIONS.  ALL OF THESE SECURITIES ARE SENIOR TO THE
GENERALS.  THE DENVER PURCHASED THE JUNCTIONS AND PAID $1,218,000 ON
THE EQUIPMENTS.  THIS REDUCED THE NECESSARY CAPITALIZATION BY THAT
AGGREGATE SUM.  THE CIRCUIT COURT OF APPEALS WAS OF THE OPINION THAT
"THE VALUE BEHIND THESE SECURITIES IN NO WISE BELONGED TO THE SENIOR
BONDHOLDERS, BECAUSE THEY HAD BEEN PAID IN FULL."  150 F.2D 39.  THIS
RULING, WE CONCLUDE, WAS ERRONEOUS FOR THE SAME BASIC REASON THAT WE
HELD THE CASH AND WAR EARNINGS BELONG TO THE OWNERS OF THE COMMON
STOCK. 

WE CALLED ATTENTION, SUPRA PAGE 519, TO THE AUTHORITY GRANTED THE
DISTRICT COURT TO REDUCE THE CAPITALIZATION OF THE NEW COMPANY AS
INTEREST DUE ON JANUARY 1, 1943, OR EQUIPMENT OBLIGATIONS OR OTHER
LIABILITIES WERE PAID.  THE DISTRICT COURT ACTED ON THIS AUTHORITY AND
IN ITS APPROVAL OF THE PLAN SAID OF THE JUNCTIONS, "THEY MAY BE
CANCELLED OR THEY MAY BE UTILIZED UNDER THE PLAN IN ACQUISITION OF NEW
SECURITIES WHICH WILL BECOME AN ASSET OF THE REORGANIZED COMPANY." 
C.C.H., BANKRUPTCY LAW SERVICE DECISIONS 1942-1945, P54,562 AT P.
55,635.  THE JUNCTION BONDHOLDERS DID NOT VOTE ON THE PLAN.  UNDER OUR
DETERMINATION THAT THE CREDITORS WHO RECEIVED COMMON STOCK WERE
COMPENSATED PARTLY BY THE ASSETS AND FUTURE EARNINGS, IT IS OBVIOUS
THAT THE USE OF SUCH ASSETS TO RETIRE SENIOR CLAIMS IS A PART OF THE
NORMAL AND EXPECTED INCREMENT FROM HOLDINGS OF COMMON STOCK.  THE
INCREASE OF COMMON STOCK BY THE COMMISSION TO THE GENERALS FROM FIVE TO
TEN PER CENT OF THE BONDHOLDERS' CLAIMS, PRELIMINARY TO THE ADOPTION OF
THE PLAN, 254 I.C.C. AT 352, 359, IS PARTLY ATTRIBUTABLE TO A REDUCTION
OF NECESSARY CAPITALIZATION.  THIS INCREASE IN JUNIOR PARTICIPATION
DIFFERS FROM THAT NOW PROPOSED.  THE FORMER REDUCTION OF SENIOR
CAPITALIZATION COULD BE CARRIED OUT BECAUSE EARNINGS PRIOR TO THE
ADOPTION OF THE PLAN MADE IT UNNECESSARY TO BORROW MONEY FOR
REORGANIZATION.  WHEN PROPOSED CAPITALIZATION IS BEING PLANNED ON
EARNINGS, A REDUCTION OF SENIOR CAPITAL WITHOUT REDUCTION OF ESTIMATED
EARNINGS INCREASES POSSIBLE JUNIOR CAPITAL WITHIN THE SCHEME.  WHEN THE
REDUCTION OF SENIOR CAPITAL TAKES PLACE AFTER THE ADOPTION OF THE PLAN
BY USE OF ANTICIPATED EARNINGS OR EXISTING CASH, THERE CAN BE NO SUCH
READJUSTMENT OF JUNIOR PARTICIPATION BECAUSE ASSETS IN THE BALANCE
SHEET AT THE ADOPTION OF THE PLAN AND SUBSEQUENT EARNINGS ARE, AS WE
HAVE POINTED OUT, FOR THE BENEFIT OF THE STOCKHOLDERS IN THE NEW
COMPANY SO THAT THROUGH THESE COMMON STOCK ADVANTAGES THESE NEW
STOCKHOLDERS MAY BE COMPENSATED FOR THEIR LOSS OF PAYMENT IN FULL IN
CASH.  OF COURSE, THIS SECTION OF THE OPINION IS WRITTEN AND MUST BE
READ ON THE ASSUMPTION THAT THE ALLOCATIONS OF COMMON STOCK ARE FAIR
AND EQUITABLE, A MATTER DISCUSSED SUPRA. 

UTAH FUEL COMPANY STOCK.  THE RIO GRANDE WESTERN RAILROAD CO. IN 1899
EXECUTED ITS FIRST CONSOLIDATED MORTGAGE, AN INDENTURE TO SECURE ITS
ISSUE OF FIRST CONSOLIDATED BONDS, MATURING APRIL 1, 1949.  RIO GRANDE
WESTERN RESERVED THE RIGHT TO ISSUE ADDITIONAL BONDS UNDER THE
INDENTURE. 

THE UTAH FUEL COMPANY WAS ORGANIZED IN 1900, WITH A CAPITALIZATION OF
100,000 SHARES.  IN 1901 AN AGREEMENT WAS ENTERED INTO BY RIO GRANDE
WESTERN, THE TRUSTEE UNDER THE FIRST CONSOLIDATED MORTGAGE, AND THE
OWNER OF THE UTAH FUEL STOCK.  THE CONTRACT PROVIDED THAT THE STOCK
WOULD BE HELD BY THE TRUSTEE TO SECURE BONDS ISSUED UNDER THE FIRST
CONSOLIDATED MORTGAGE AND THAT RIO GRANDE WESTERN WOULD HAVE THE RIGHT
AT ANY TIME ON PAYING THE TRUSTEE $6,000,000 IN CASH OR DELIVERING AN
EQUAL FACE AMOUNT IN FIRST CONSOLIDATED BONDS TO RECEIVE THE UTAH FUEL
STOCK, FREE OF THE MORTGAGE LIEN.  SUBJECT TO THE LIEN, THE STOCK WAS
TRANSFERRED TO RIO GRANDE WESTERN.  $6,000,000 IN ADDITIONAL FIRST
CONSOLIDATEDS WERE ISSUED TO THE OWNER OF THE STOCK. 

IN 1908, THE DENVER & RIO GRANDE RAILROAD COMPANY WAS ORGANIZED AND
ACQUIRED THE PROPERTY OF RIO GRANDE WESTERN, ASSUMING THE OBLIGATION OF
ITS FIRST CONSOLIDATED MORTGAGE BONDS OF 1899.  THE EQUITY OF
REDEMPTION OF DENVER & RIO GRANDE RAILROAD COMPANY IN THE UTAH FUEL
STOCK WAS SOLD IN 1918 UNDER EXECUTION AND TRANSFERRED TO THE WESTERN
PACIFIC RAILROAD CORPORATION. 

IN 1924 UNDER AN AGREEMENT AMONG THE DENVER & RIO GRANDE WESTERN
RAILROAD COMPANY, THE WESTERN PACIFIC RAILROAD CORPORATION, MISSOURI
PACIFIC RAILROAD COMPANY, AND T. S. ALEXANDER, WHO BY THE AGREEMENT
BECAME TRUSTEE OF THE EQUITY OF REDEMPTION IN THE UTAH FUEL STOCK,
WESTERN PACIFIC TRANSFERRED TO T. S. ALEXANDER, TRUSTEE, SUBJECT TO THE
PLEDGE UNDER THE CONSOLIDATED MORTGAGE, ITS UTAH FUEL STOCK AND THE
DEBTOR TRANSFERRED TO SAID TRUSTEE WHATEVER INTEREST IT HAD IN THE
STOCK, THROUGH CERTAIN RELEASES, NOT HERE IMPORTANT. 

THE AGREEMENT FIRST PROVIDED THAT THE ULTIMATE BENEFICIAL INTEREST IN
THE UTAH FUEL STOCK SO HELD WAS VESTED ONE-HALF IN MISSOURI PACIFIC AND
ONE-HALF IN WESTERN PACIFIC.  EXCEPT FOR CERTAIN CONTINGENCIES NOT HERE
IMPORTANT, IT WAS PROVIDED THAT THE TRUSTEE UNDER THE 1924 AGREEMENT
WOULD PAY ALL DIVIDENDS RECEIVED BY HIM FROM THE TRUSTEE UNDER THE
CONSOLIDATED MORTGAGE ON UTAH FUEL STOCK TO THE DEBTOR SO LONG AS ANY
OF THE GENERAL OR REFUNDING BONDS WERE OUTSTANDING. 

THE AGREEMENT FURTHER PROVIDED THAT, IF THE GENERAL MORTGAGE OR THE
REFUNDING OR OTHER MORTGAGE OF THE DEBTOR WERE FORECLOSED, THE TRUSTEE
WOULD SELL THE INTEREST OF THESE MORTGAGES IN THE UTAH FUEL STOCK
SUBJECT TO THE CONSOLIDATED MORTGAGE, IF OUTSTANDING, AND APPLY THE
PROCEEDS TO THE PAYMENT OF THE BONDS SECURED BY THE EQUITY OF
REDEMPTION IN THE STOCK, DIVIDING ANY SURPLUS BETWEEN WESTERN PACIFIC
AND MISSOURI PACIFIC. 

THE GENERAL MORTGAGE AND REFUNDING BONDS CREATED IN THE 1924
REORGANIZATION WERE THUS GIVEN A LIEN ON THE UTAH FUEL STOCK, JUNIOR TO
THE LIEN OF THE DENVER & RIO GRANDE FIRST CONSOLIDATED MORTGAGE. 

UNDER THE PLAN APPROVED BY THE COMMISSION AND THE DISTRICT COURT, THE
FIRST CONSOLIDATED BONDS WERE ALLOTTED 20% OF THEIR CLAIM IN NEW INCOME
BONDS, 73% IN PREFERRED STOCK, AND 7% IN COMMON STOCK.  THE PLAN
FURTHER PROVIDED, 254 I.C.C. AT 398-99, THAT: 

"THE TRUSTEE UNDER THE RIO GRANDE WESTERN RAILWAY COMPANY
CONSOLIDATED MORTGAGE SHALL BE PERMITTED TO OBTAIN THE RELEASE OF THE
EQUITIES IN THE STOCK OF THE UTAH FUEL COMPANY AND DISTRIBUTE THE STOCK
AMONG THE HOLDERS OF THE AFORESAID BONDS IN ANY MANNER AGREEABLE TO
THEM, OR TO ENFORCE ITS RIGHTS AS PLEDGEE OF THE STOCK OF THE UTAH FUEL
COMPANY, THE PROCEEDS RECOVERED TO BE DISTRIBUTED TO THE HOLDERS OF THE
BONDS." 

THE COMMISSION TOOK THE POSITION THAT THIS AND THE OTHER FEATURES OF
THE TREATMENT OF THE FIRST CONSOLIDATED BONDS WERE JUSTIFIED AS
COMPENSATION FOR "LOSS IN EARNINGS POSITION AND SURRENDER OF OTHER
RIGHTS"  FN30  UNDER THE PLAN. 

THE COMMISSION MADE NO DEFINITE FINDING WITH RESPECT TO THE VALUE OF
THE FUEL COMPANY STOCK.  THE COMMISSION HAD BEFORE IT EVIDENCE THROUGH
1936 WITH RESPECT TO THE VALUE OF THE STOCK AS WELL AS AN APPRAISAL OF
THE VALUE OF THE FUEL COMPANY MADE FOR THE TRUSTEE OF THE FIRST
CONSOLIDATED MORTGAGE, WHICH INDICATED A VALUE OF $4,653,720.  THE ONLY
DIVIDEND PAID TO THE DEBTOR BY UTAH FUEL UNDER THE 1924 AGREEMENT WAS
IN 1934 AND AMOUNTED TO $250,000; THE DEBTOR IN APPLYING ITS FORMULA
FOR ALLOCATION OF EARNINGS BY MORTGAGE DISTRICTS CREDITED THE
CONSOLIDATED MORTGAGE WITH AN INCOME OF $83,333 PER ANNUM BASED ON THAT
DIVIDEND PAYMENT ALLOCATED OVER THE THREE-YEAR PERIOD, 1932 TO 1934. 
THE STATUS OF THE STOCK WAS CONSIDERED BY THE COMMISSION IN ITS
ORIGINAL REPORT AND ITS SEVERAL SUPPLEMENTAL REPORTS, AND ITS PROPOSALS
WITH RESPECT TO THE STOCK REMAINED UNCHANGED. 

IN PROCEEDINGS BEFORE THE DISTRICT COURT IN 1943 ON OBJECTIONS TO THE
PLAN, IT WAS REVEALED THAT THE FUEL COMPANY'S NET INCOME FOR 1942 WAS
$415,000 AND FOR THE FIRST SEVEN MONTHS OF 1943, $535,869.  FN31  THE
COMPANY HAS NO FUNDED DEBT. 

IN THE CIRCUIT COURT THE RESPONDENTS CONTENDED THAT THE HOLDERS OF
THE FIRST CONSOLIDATED BONDS SHOULD BE COMPELLED EITHER TO FORECLOSE
THIS COLLATERAL, APPLYING THE PROCEEDS TO THEIR CLAIM, OR CREDIT THEIR
CLAIM WITH THE VALUE OF THE COLLATERAL AND BE ALLOWED NEW SECURITIES
ONLY FOR THE BALANCE.  THE CIRCUIT COURT DISAPPROVED THE TREATMENT BY
THE PLAN OF THE GENERAL BONDHOLDERS WITH RESPECT TO THE FUEL COMPANY
STOCK, POINTING TO THE FACT THAT THE COMMISSION HAD PERMITTED "DOUBTS
AND UNCERTAINTIES" TO REMAIN WITH RESPECT TO THE VALUE OF THE
COLLATERAL, AND THAT THERE WAS A DANGER THAT, IF THE COLLATERAL HAD
SUBSTANTIAL VALUE, THE FIRST CONSOLIDATED BONDHOLDERS MIGHT RECEIVE
MORE THAN FULL PAYMENT. 

THE FACTS SET OUT ABOVE FULLY SUPPORT THE CONCLUSION OF THE
COMMISSION THAT THE "TITLE TO THE STOCK IS VESTED IN THE MISSOURI
PACIFIC AND WESTERN PACIFIC."  WHATEVER RIGHTS THE DEBTOR MAY HAVE
RETAINED AFTER THE SALE OF THE STOCK ON EXECUTION IN 1918 WERE RELEASED
TO THE TRUSTEE AND THE TWO RAILROADS IN 1924.  WE HAVE THEN A SITUATION
IN WHICH THE HOLDERS OF THE ULTIMATE BENEFICIAL INTEREST IN STOCK WHICH
HAD BEEN PLEDGED PREVIOUSLY UNDER A MORTGAGE HAVE PERMITTED THAT
INTEREST TO BE ENCUMBERED BY A THIRD PERSON, NAMELY THE DEBTOR, AS
SECURITY FOR ITS GENERAL AND REFUNDING BONDS.  THE RULE IS SETTLED IN
BANKRUPTCY PROCEEDINGS THAT A CREDITOR SECURED BY THE PROPERTY OF
OTHERS NEED NOT DEDUCT THE VALUE OF THAT COLLATERAL OR ITS PROCEEDS IN
PROVING HIS DEBT.  IVANHOE BLDG. & LOAN ASSN. V. ORR, 295 U.S. 243.  WE
SEE NO REASON WHY THE SAME SHOULD NOT BE TRUE UNDER SEC. 77.  SEE NEW
YORK TRUST CO. V. PALMER, 101 F.2D 1, 3.  THEREFORE THE FIRST
CONSOLIDATED MORTGAGE BONDS WERE PROPERLY PERMITTED TO PROVE THE FULL
AMOUNT OF THEIR DEBT. 

RESPONDENTS, SPEAKING ONLY FOR THE GENERAL BONDHOLDERS, OBJECT THAT
THE PLAN GIVES THE FIRST CONSOLIDATED BONDHOLDERS ALL THE UTAH FUEL
STOCK OR ITS PROCEEDS IN ADDITION TO SECURITIES THE FACE VALUE OF WHICH
AMOUNTS TO ONE HUNDRED PER CENT OF THEIR CLAIMS.  THE REFUNDING
BONDHOLDERS MAKE NO OBJECTION.  IT IS THUS CONTENDED THAT THE PLAN
DEPRIVES THE GENERAL BONDHOLDERS OF THEIR JUNIOR INTEREST IN THE STOCK
WITHOUT A DETERMINATION OF THE VALUE OF THAT STOCK, OR A FINDING OF THE
EXTENT TO WHICH THE CONSOLIDATED BONDHOLDERS HAVE BEEN PAID BY THE NEW
SECURITIES TO BE GIVEN THEM.  WE DO NOT SO READ THE PLAN.  THE PLAN
PROVIDES MERELY THAT THE TRUSTEE OF THE CONSOLIDATED MORTGAGE "SHALL BE
PERMITTED TO OBTAIN THE RELEASE OF THE EQUITIES IN THE STOCK OF THE
UTAH FUEL COMPANY" AND DISTRIBUTE THE STOCK OR ITS PROCEEDS TO THE
HOLDERS OF THE BONDS.  THIS STATEMENT CONTAINS AT LEAST TWO
REQUIREMENTS TO BE MET BEFORE THE CONSOLIDATED BONDS OBTAIN ANYTHING
FROM THE COLLATERAL.  THE FIRST IS THAT THE TRUSTEE OF THE FIRST
CONSOLIDATED MORTGAGE BE IN EXISTENCE.  EVEN AFTER THE PLAN GOES INTO
OPERATION AND THE OLD SECURITIES ARE SURRENDERED FOR CANCELLATION,
THERE IS NO REQUIREMENT THAT THE TRUSTS TERMINATE SINCE THEY WILL
CONTINUE TO HOLD PROPERTY OTHER THAN THAT OF THE DEBTOR.  SECTION
77(F), WHICH DEALS WITH THE EFFECT OF A CONFIRMATION AND THE DISCHARGE
OF THE DEBTOR FROM LIABILITY, DOES NOT SO REQUIRE.  HENCE WHATEVER
ACTION THE TRUSTEE OF THE CONSOLIDATED TAKES MAY BE COMMENCED PRIOR TO
OR AFTER THE CONSUMMATION OF THE PLAN.  THIS WILL PERMIT THE
RESPONDENT, TRUSTEE UNDER THE GENERAL MORTGAGE, WHICH WOULD CONTINUE IN
EXISTENCE FOR THE PURPOSE, TO TAKE THE NECESSARY STEPS TO SAFEGUARD ITS
RIGHTS IN THE COLLATERAL ON BEHALF OF THE GENERALS.  FN32 

THE SECOND REQUIREMENT, WHICH IS EXPLICIT IN THE PLAN, IS THAT THE
TRUSTEE OBTAIN THE RELEASE OF THE EQUITIES IN THE STOCK.  THE JUNIOR
LIENORS HAVE AN ABSOLUTE RIGHT UNDER THE TERMS OF THE 1901 PLEDGE AND
THE 1924 AGREEMENT TO ALL THE PROCEEDS OF THE STOCK OVER $6,000,000 AND
A RIGHT ALSO TO ANY PART OF THE PROCEEDS NOT NEEDED TO MAKE THE FIRST
CONSOLIDATED BONDS WHOLE.  THE TRUSTEE OF THE CONSOLIDATED CONCEDES IN
ITS BRIEF HERE THAT ENFORCEMENT OF THE PLEDGE CAN BE BROUGHT ABOUT ONLY
THROUGH JUDICIAL PROCEEDINGS.  IT CORRECTLY POINTS OUT THAT IN SUCH
PROCEEDINGS FULL PROTECTION CAN BE GIVEN TO ALL THOSE WHO HAVE ANY
JUNIOR INTEREST IN THE STOCK.  RESPONDENTS' FEAR THAT THE GENERAL
BONDHOLDERS AND THE MORTGAGE TRUSTEES FOR THE JUNIOR INTERESTS WILL NOT
BE IN EXISTENCE AND SO UNABLE TO PROTECT THEMSELVES HAS BEEN ABOVE
DEMONSTRATED TO BE WITHOUT FOUNDATION IN FACT.    THE RESULT IS THAT
THIS FEATURE OF THE PLAN DID NOT IN ANY WAY CHANGE OR AFFECT EXISTING
RIGHTS IN THE COLLATERAL.  THE RESPONDENTS MAY SHOW IN THE JUDICIAL
PROCEEDINGS WHICH MUST BE BROUGHT BY THE TRUSTEE OF THE FIRST
CONSOLIDATED MORTGAGE THAT THE FIRST CONSOLIDATED BONDS HAVE BEEN FULLY
PAID BY THE SECURITIES AWARDED THEM UNDER THE PLAN, IF SUCH BE THE
FACT, OR THE RESPONDENT, TRUSTEE OF THE GENERAL, MAY ITSELF BRING A
PROCEEDING AGAINST THE TRUSTEE OF THE FIRST CONSOLIDATED MORTGAGE FOR A
DETERMINATION OF THE RIGHTS OF THE GENERALS.  PETITIONERS CONCEDE, AS
THEY MUST, THAT THEY ARE NOT ENTITLED TO MORE THAN FULL PAYMENT AND
THAT THEY ARE UNDER A DUTY TO ACCOUNT TO THE RESPONDENTS FOR ANY
SURPLUS REMAINING AFTER THEY HAVE BEEN MADE WHOLE.  FN33 

THE TREATMENT OF THE UTAH FUEL STOCK IN THE PLAN IS CONSISTENT WITH
THE COMMISSION'S DISPOSITION OF CERTAIN COLLATERAL PLEDGED WITH THE
RECONSTRUCTION FINANCE CORPORATION AND THE RAILROAD CREDIT CORPORATION
BY PARTIES OTHER THAN THE DEBTOR TO SECURE NOTES OF THE DEBTOR IN THE
WESTERN PACIFIC CASE.  WESTERN PACIFIC R. CO. REORGANIZATION, 233
I.C.C. 409, 432.  THE COMMISSION PERMITTED THE PLEDGEES TO RETAIN THE
COLLATERAL AND THIS COURT APPROVED THAT ACTION, SAYING, "THIS
COLLATERAL, OTHER THAN THE REFUNDING BONDS, WAS THEREFORE LEFT WITH THE
PLEDGEES WITH ITS POSITION UNAFFECTED BY ANY DIRECT ACTION OF THE
COMMISSION."  ECKER V. WESTERN PACIFIC R. CORP., SUPRA, AT 506. 

REASONABLENESS OF REJECTION.  AS THE CONCLUSIONS OF THE CIRCUIT COURT
OF APPEALS UPON THE ALLOCATION OF SECURITIES, THE TREATMENT BY THE
COMMISSION OF CASH, WAR EARNINGS, AND DECREASE IN DEBT WITH PRIORITY
OVER THE GENERALS DIFFERED FROM THOSE MADE BY THIS COURT, THAT COURT'S
CONCLUSION THAT THE GENERAL BONDHOLDERS WERE REASONABLY JUSTIFIED IN
REJECTING THE PLAN FOLLOWED NATURALLY.  150 F.2D 40.  SECTION (E) GIVES
POWER TO A CLASS, HERE THE GENERAL BONDHOLDERS, TO REJECT THE PLAN
SUBJECT TO THE POWER OF THE DISTRICT COURT, AFTER CERTIFICATION OF THE
RESULT OF THE SUBMISSION, TO "CONFIRM THE PLAN IF HE IS SATISFIED AND
FINDS, AFTER HEARING, THAT IT MAKES ADEQUATE PROVISION FOR FAIR AND
EQUITABLE TREATMENT FOR THE INTERESTS OR CLAIMS OF THOSE REJECTING IT;
THAT SUCH REJECTION IS NOT REASONABLY JUSTIFIED IN THE LIGHT OF THE
RESPECTIVE RIGHTS AND INTERESTS OF THOSE REJECTING IT AND ALL THE
RELEVANT FACTS; AND THAT THE PLAN CONFORMS TO THE REQUIREMENTS OF
CLAUSES (1) TO (3), INCLUSIVE, OF THE FIRST PARAGRAPH OF THIS
SUBSECTION (E)  ..."  11 U.S.C. SEC. 205; SEE NOTE 9, SUPRA.  FN34  THE
PLAN WAS CONFIRMED AFTER APPROPRIATE FINDINGS.  62 F.SUPP.  AT 390. 

THIS PROVISION FOR CONFIRMATION OF A PLAN DESPITE REJECTION BY A
CLASS APPEARED IN THE DRAFT FOR THE 1935 AMENDMENTS.  APPARENTLY IT
CAUSED NO PARTICULAR COMMENT.  FN35  WE THINK THAT THE PROVISIONS FOR
CONFIRMATION BY THE COURTS OVER THE CREDITORS' OBJECTION ARE WITHIN THE
BANKRUPTCY POWERS OF CONGRESS.  THOSE POWERS ARE ADEQUATE TO ELIMINATE
CLAIMS BY ADMINISTRATIVE VALUATIONS WITH JUDICIAL REVIEW AND THEY ARE
ADEQUATE TO REQUIRE CREDITORS TO ACQUIESCE IN A FAIR ADJUSTMENT OF
THEIR CLAIMS, SO LONG AS THE CREDITOR GETS ALL THE VALUE OF HIS LIEN
AND HIS SHARE OF ANY FREE ASSETS.  FN36 

THE GROUNDS ACCEPTED BY US IN FORMER SECTIONS OF THIS OPINION AS
SUSTAINING, AS OF JANUARY 1, 1943, THE VALUATION OF THE ROAD, THE
ALLOCATION OF THE SECURITIES, AND THE TREATMENT OF CASH, WAR EARNINGS
AND CAPITAL REDUCTIONS ESTABLISH THAT FOR THE ACT OF CONFIRMATION ON
NOVEMBER 29, 1944, OVER THE OBJECTION OF THE GENERAL BONDHOLDERS, THE
FINDING OF THE JUDGE THAT THE PLAN THEN MADE "ADEQUATE PROVISION FOR
FAIR AND EQUITABLE TREATMENT" OF THE DISSENTERS WAS JUSTIFIED.  62
F.SUPP.  AT 390.  IN VIEW OF THE DISTRICT JUDGE'S FAMILIARITY WITH THE
REORGANIZATION, THIS FINDING HAS ESPECIAL WEIGHT WITH US.  SEE RULE 52,
F.R.C.P.  THERE IS NO DOUBT THAT THE PLAN THEN CONFORMED TO SUBSECTION
(B) AND THE OTHER REQUIREMENTS OF THE FIRST PARAGRAPH OF SUBSECTION
(E).  NOTE 9 SUPRA. 

THIS LEAVES FOR CONSIDERATION THE QUESTION OF WHETHER, THE PLAN BEING
FAIR AND EQUITABLE AS OF JUNE, 1943, EFFECTIVE JANUARY 1, 1943, THE
GENERALS WERE REASONABLY JUSTIFIED IN REJECTING THE PLAN BY BALLOTS
CAST BETWEEN APRIL 26 AND JULY 15, 1944. 

AS WE HAVE POINTED OUT UNDER ALLOCATION OF SECURITIES, SUPRA, THE
COMMISSION'S PLAN WAS ADOPTED AFTER 1942, THE YEAR OF GREATEST PROFIT,
AND WITH ANTICIPATION ON THE PART OF THE COMMISSION THAT THERE MIGHT BE
OTHER "BIG" YEARS BUT WITH REALIZATION THAT THE WAR PROFITS WERE NOT A
SOUND BASIS FOR HIGHER VALUATION.  CURRENT REPORTS OF EARNINGS WERE A
PART OF THE RECORD.  NOTHING THAT RESPONDENTS HAVE CALLED TO OUR
ATTENTION INDICATES ANY IMPROVEMENT IN ECONOMIC CONDITIONS OR PROSPECTS
IN JULY, 1944, OR ANY DATE SINCE, OVER JUNE, 1943, THE DATE OF THE
COMMISSION'S APPROVAL OF THE PLAN, WHICH WOULD JUSTIFY A TREATMENT
DIFFERENT FROM THAT ACCORDED THE CLAIMANTS IN 1943.  FN37  THE
CHALLENGE TO THE REASONABLENESS OR THE UNREASONABLENESS OF THE
REJECTION OF THE PLAN IS NOT BASED ON ANY CHANGE OF CONDITIONS SINCE
ITS APPROVAL BY THE DISTRICT COURT OCTOBER 25, 1943.  UNDER SUBSECTION
(E), NOTE 9 SUPRA, THE JUDGE AUTOMATICALLY CONFIRMS A PLAN AFTER A VOTE
OF CLASSES OF CREDITORS IF SATISFIED THAT TWO-THIRDS OF EACH CLASS HAVE
ACCEPTED.  IF THERE IS A REJECTION, THERE IS A REEXAMINATION OF THE
PLAN TO ASSURE THAT THOSE WHO DISSENT HAVE HAD FAIR AND EQUITABLE
TREATMENT.  APPARENTLY THE REEXAMINATION FOR THIS TREATMENT DOES NOT
DIFFER FROM THAT FOR THE ORIGINAL COURT APPROVAL UNDER THE FIRST
PARAGRAPH OF SUBSECTION (E).  IT DOES, HOWEVER, CENTER UPON THE RIGHTS
OF THOSE WHO REJECTED THE PLAN. 

A REJECTION WOULD NOT BE REASONABLY JUSTIFIED UNLESS THE DISSENTERS
HAD A VALID REASON FOR THEIR VOTE.  AS IS SHOWN BY JUDGE SYMES'
DISCUSSION OF THEIR OBJECTIONS TO CONFIRMATION N38, THEIR REASONS WERE
THE PAYMENT OF THE SENIOR OBLIGATIONS WITH CONSEQUENT CLAIMED RELEASE
OF CAPITALIZATION FOR JUNIOR SECURITIES AND THE INADEQUATE VALUATION,
PARTICULARLY IN VIEW OF THE LARGE ADDITIONS TO PLANTS FROM EARNINGS. 
WE THINK THAT WE HAVE DEMONSTRATED THAT THERE WAS AN ADEQUATE BASIS FOR
THE VALUATION, SEE PAGE 512 ET SEQ., AND THAT THE DECREASES IN SENIOR
DEBT WERE NOT FOR THE ACCOUNT OF THE JUNIOR CREDITORS.  SEE PP. 524
525, SUPRA.  RESPONDENTS OFFER NO OTHER GROUND FOR THEIR VOTES IN
REJECTION. 

CONGRESS WITH ITS PURPOSE TO STOP THE BLOCKADE OF SOUND
REORGANIZATION BY CLASSES OF CREDITORS WITH THE VETO POWER OF THE 1933
STATUTE, NOTE 35, SUPRA, CERTAINLY DID NOT INTEND TO LEAVE A CLASS WITH
THE SAME POWER OF INTERFERENCE BECAUSE IN ITS REASONABLE JUDGMENT THAT
CLASS THOUGHT THE VALUATION WAS ERRONEOUS OR THE SENIOR CREDITORS WERE
PAID IN FULL BY THE FACE VALUE OF SECURITIES.  IF A PLAN GIVES FAIR AND
EQUITABLE TREATMENT TO DISSENTERS, THE ELEMENTS WHICH MAKE THE PLAN
FAIR AND EQUITABLE CANNOT BE THE BASIS FOR A REASONABLY JUSTIFIED
REJECTION.  IF ONLY THOSE ELEMENTS ARE RELIED UPON, AS HERE, THE
REJECTION IS NOT REASONABLY JUSTIFIED. 

OF COURSE, THIS DOES NOT MEAN THAT IF A PLAN IS APPROVED AS FAIR AND
EQUITABLE BY THE COMMISSION AND THE COURT, THERE CANNOT BE A REASONABLE
JUSTIFICATION FOR ITS REJECTION BY A CLASS OF CLAIMANTS ON SUBMISSION. 
REASONS TO MAKE THEIR REJECTION REASONABLE MAY ARISE THEREAFTER.  FOR
EXAMPLE, UNANTICIPATED, LARGE EARNINGS MIGHT DEVELOP.  WE SEE NO
REASONABLE JUSTIFICATION HERE FOR THE ACTION OF THE GENERAL
BONDHOLDERS. 

IN CONCLUSION, WE SHALL ADD THAT THE FOREGOING OPINION HAS BEEN
WRITTEN WITHOUT HEAVY RELIANCE UPON THE DUTY OF THE COMMISSION TO PLAN
REORGANIZATIONS WITH AN EYE TO THE PUBLIC INTEREST AS WELL AS THE
PRIVATE WELFARE OF CREDITORS AND STOCKHOLDERS.  FN39  THE COMMISSION
HAD THIS DUTY IN MIND.  OUR FAILURE TO COMMENT MORE UPON THAT FEATURE
OF THE PLAN SHOULD NOT BE INTERPRETED AS AN INTIMATION UPON OUR PART
THAT IT IS NOT IMPORTANT.  THESE RESPONDENTS CANNOT BE CALLED UPON TO
SACRIFICE THEIR PROPERTY SO THAT A DEPRESSION-PROOF RAILROAD SYSTEM
MIGHT BE CREATED.  BUT THEY INVESTED THEIR CAPITAL IN A PUBLIC UTILITY
THAT DOES OWE AN OBLIGATION TO THE PUBLIC.  THE INSURANCE GROUP
COMMITTEE, WITH FIDUCIARY RESPONSIBILITY TO THE MYRIAD HOLDERS OF
POLICIES, AND THE OTHER INVESTORS OR SPECULATORS IN SENIOR BONDS AS
WELL AS THE HOLDERS OF GENERAL BONDS OR OTHER INVESTORS OR SPECULATORS
IN JUNIOR SECURITY ISSUES, BY THEIR ENTRY INTO A RAILROAD ENTERPRISE,
ASSUMED THE RISK THAT IN ANY DEPRESSION OR ANY REORGANIZATION THE
INTERESTS OF THE PUBLIC WOULD BE CONSIDERED AS WELL AS THEIRS.  THAT
PUBLIC INTEREST IN AN EFFICIENT TRANSPORTATION SYSTEM JUSTIFIES THE
COMMISSION'S REQUIREMENTS FOR REASONABLE MAINTENANCE AND IMPROVEMENT OF
THE PROPERTIES AND FOR A CAPITALIZATION WITH FAIR PROSPECTS FOR
DIVIDENDS ON ALL CLASSES OF SECURITIES.  FN40 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
ORDERS OF THE DISTRICT COURT OF OCTOBER 25, 1943, APPROVING THE PLAN,
AND OF NOVEMBER 29, 1944, CONFIRMING THE PLAN, ARE AFFIRMED. 

THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS. 
IT IS SO ORDERED. 

FN1  11 U.S.C. SEC. 205. 

FN2  THE PLAN IS PRINTED IN DENVER & R.G.W.R. CO. REORGANIZATION, 254
I.C.C. 349, 385.  SEE FOR FORMER DECISIONS OF THE COMMISSION IN THIS
REORGANIZATION, 233 I.C.C. 515; 239 I.C.C. 583; 254 I.C.C. 5. 

FN3  C.C.H. BANKRUPTCY LAW SERVICE P54,562. 

FN4  THE DENVER & RIO GRANDE WESTERN RAILROAD COMPANY IS REFERRED TO
HEREIN AS THE DEBTOR OR THE DENVER; THE DENVER & SALT LAKE WESTERN
RAILROAD COMPANY AS SALT LAKE WESTERN; THE DENVER & SALT LAKE RAILWAY
COMPANY AS THE SALT LAKE; THE RIO GRANDE JUNCTION RAILWAY COMPANY AS
THE JUNCTION. 

FN5  IN RE DENVER & R.G.W.R. CO., 62 F.SUPP.  384. 

FN6  254 I.C.C. AT 354 TO 357. 

FULL DETAILS APPEAR IN THE PLAN, NOTE 2, SUPRA, AS WELL AS
EXPLANATION OF CERTAIN ITEMS IN THE FOLLOWING TABLES.  THE TABLES ARE
PRINTED TO GIVE THE READER A CONVENIENT SUMMARY OF THE PLAN.  254
I.C.C. 382-83. 

               CAPITALIZATION AND ANNUAL CHARGES. 

                    (CHART OMITTED)

      DISTRIBUTION OF NEW SECURITIES PER $1,000 OF PRESENT BONDS

         WITH ACCRUED INTEREST. 

   (CHART OMITTED)

                               CLAIMS. 

                                               CLAIMS AS OF
UNDISTURBED

    JAN. 1, 1943 OR EXTENDED 

EQUIPMENT OBLIGATIONS............................  $5,758,000
$5,758,000 

RIO GRANDE WESTERN FIRST-TRUST 4'S...............  20,050,800 

RIO GRANDE WESTERN CONSOLIDATED 4'S..............  20,056,400 

RIO GRANDE JUNCTION FIRST 5'S....................   2,758,333 

DENVER & RIO GRANDE CONSOLIDATED 4'S.............  45,727,500 

DENVER & RIO GRANDE CONSOLIDATED 4 1/2'S.........   8,823,115 

REFUNDING AND IMPROVEMENT 5'S....................  16,950,000 

REFUNDING AND IMPROVEMENT 6'S....................   2,990,000 

GENERAL-MORTGAGE 5'S.............................  43,548,155 

CHASE NATIONAL BANK NOTE.........................  2,158,458
2,158,458 

R.R. CREDIT CORPORATION NOTE; PAID MAY 17, 1943 

R.F.C. NOTES.....................................  13,900,605 

UNSECURED CLAIMS, APPROXIMATE....................     440,000   NO
EQUITY

               --------------------------

 TOTAL, DENVER & RIO GRANDE WESTERN............ 183,161,366
7,916,458 

RESPONDENTS SOUGHT REVIEW IN SEPARATE APPEALS FROM THE ORDER OF
APPROVAL OR THE ORDER OF CONFIRMATION OR BOTH TO THE CIRCUIT COURT OF
APPEALS FOR THE TENTH CIRCUIT.  THAT COURT REVERSED THE DISTRICT COURT
ON ALL APPEALS AND REMANDED THE REORGANIZATION PROCEEDINGS TO THE
INTERSTATE COMMERCE COMMISSION FOR FURTHER CONSIDERATION WITH THE
STATEMENT, 150 F.2D 28, 40, 

"NOTHING IN THIS OPINION SHALL PREJUDICE OR FORECLOSE THE RIGHTS OF
THE PARTIES TO PROPOSE A NEW PLAN OF REORGANIZATION OR THE POWER OF THE
COMMISSION TO FORMULATE, APPROVE, AND CERTIFY A NEW PLAN OF
REORGANIZATION IN THE LIGHT OF ANY RELEVANT FACTS PRESENTED TO THE
COMMISSION IN ANY PROCEEDING UNDER 11 U.S.C. SEC. 205(D)."  BY THIS
REMAND, THE COMMISSION WAS EMPOWERED TO PROCEED ANEW TO CONSIDERATION
OF THE REORGANIZATION IN ALL ITS PHASES, SEC. 77(E), INCLUDING THOSE
STEPS PREVIOUSLY TAKEN AND APPROVED BY THE OPINION OF THE CIRCUIT COURT
OF APPEALS. 

THAT COURT APPROVED THE VALUATION OF THE DEBTOR REACHED MAINLY BY THE
USE OF PRESENT AND PROSPECTIVE EARNINGS.  IT HELD THAT THE VALUATION
ADOPTED NEED NOT REFLECT NECESSARILY THE MONEY SPENT FOR IMPROVEMENTS
DURING THE TRUSTEESHIP FOR REORGANIZATION.  150 F.2D 35.  THE SOUNDNESS
OF THESE CONCLUSIONS IS FULLY SUPPORTED BY THE WESTERN PACIFIC AND
MILWAUKEE CASES.  FN7  THE CIRCUIT COURT FURTHER HELD THAT THE
COMMISSION WAS JUSTIFIED IN REFUSING TO REOPEN THE HEARINGS JUST BEFORE
THE ENTRY OF ITS ORDER OF JUNE 14, 1943, APPROVING THE PLAN, TO HEAR
EVIDENCE OF THE THEN EXISTING ECONOMIC CONDITIONS AND THE 1943 EARNINGS
OF THE DEBTOR.  FN8 

FN7  ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448, 477-83; GROUP
OF INVESTORS V. MILWAUKEE R. CO., 318 U.S. 523, 539-41. 

FN8  CF. 318 U.S. AT 543. 

FN9  APPLICABLE PROVISIONS OF SEC. 77, 11 U.S.C. SEC. 205, ARE AS
FOLLOWS: 

"(B)  A PLAN OF REORGANIZATION WITHIN THE MEANING OF THIS SECTION (1)
SHALL INCLUDE PROVISIONS MODIFYING OR ALTERING THE RIGHTS OF CREDITORS
GENERALLY, OR OF ANY CLASS OF THEM, SECURED OR UNSECURED, EITHER
THROUGH THE ISSUANCE OF NEW SECURITIES OF ANY CHARACTER OR OTHERWISE;
(2) MAY INCLUDE PROVISIONS MODIFYING OR ALTERING THE RIGHTS OF
STOCKHOLDERS GENERALLY, OR OF ANY CLASS OF THEM, EITHER THROUGH THE
ISSUANCE OF NEW SECURITIES OF ANY CHARACTER, OR OTHERWISE; (3) MAY
INCLUDE, FOR THE PURPOSE OF PRESERVING SUCH INTERESTS OF CREDITORS AND
STOCKHOLDERS AS ARE NOT OTHERWISE PROVIDED FOR, PROVISIONS FOR THE
ISSUANCE TO ANY SUCH CREDITOR OR STOCKHOLDER OF OPTIONS OR WARRANTS TO
RECEIVE, OR TO SUBSCRIBE FOR, SECURITIES OF THE REORGANIZED COMPANY IN
SUCH AMOUNTS AND UPON SUCH TERMS AND CONDITIONS AS MAY BE SET FORTH IN
THE PLAN; (4) SHALL PROVIDE FOR FIXED CHARGES (INCLUDING FIXED INTEREST
ON FUNDED DEBT, INTEREST ON UNFUNDED DEBT, AMORTIZATION OF DISCOUNT ON
FUNDED DEBT, AND RENT FOR LEASED RAILROADS) IN SUCH AN AMOUNT THAT,
AFTER DUE CONSIDERATION OF THE PROBABLE PROSPECTIVE EARNINGS OF THE
PROPERTY IN LIGHT OF ITS EARNINGS EXPERIENCE AND ALL OTHER RELEVANT
FACTS, THERE SHALL BE ADEQUATE COVERAGE OF SUCH FIXED CHARGES BY THE
PROBABLE EARNINGS AVAILABLE FOR THE PAYMENT THEREOF; ... 

     .         .        .         .         . 

"(D)  THE DEBTOR, AFTER A PETITION IS FILED AS PROVIDED IN SUBSECTION
(A) OF THIS SECTION, SHALL FILE A PLAN OF REORGANIZATION WITHIN SIX
MONTHS OF THE ENTRY OF THE ORDER BY THE JUDGE APPROVING THE PETITION AS
PROPERLY FILED,  ...  AFTER THE FILING OF SUCH A PLAN, THE COMMISSION,
UNLESS SUCH PLAN SHALL BE CONSIDERED BY IT TO BE PRIMA FACIE
IMPRACTICABLE, SHALL, AFTER DUE NOTICE TO ALL STOCKHOLDERS AND
CREDITORS GIVEN IN SUCH MANNER AS IT SHALL DETERMINE, HOLD PUBLIC
HEARINGS, AT WHICH OPPORTUNITY SHALL BE GIVEN TO ANY INTERESTED PARTY
TO BE HEARD, AND FOLLOWING WHICH THE COMMISSION SHALL RENDER A REPORT
AND ORDER IN WHICH IT SHALL APPROVE A PLAN, WHICH MAY BE DIFFERENT FROM
ANY WHICH HAS BEEN PROPOSED, THAT WILL IN ITS OPINION MEET WITH THE
REQUIREMENTS OF SUBSECTIONS (B) AND (E) OF THIS SECTION, AND WILL BE
COMPATIBLE WITH THE PUBLIC INTEREST; OR IT SHALL RENDER A REPORT AND
ORDER IN WHICH IT SHALL REFUSE TO APPROVE ANY PLAN.  IN SUCH REPORT THE
COMMISSION SHALL STATE FULLY THE REASONS FOR ITS CONCLUSIONS. 

     .       .         .         .         . 

"(E)  UPON THE CERTIFICATION OF A PLAN BY THE COMMISSION TO THE
COURT, THE COURT SHALL GIVE DUE NOTICE TO ALL PARTIES IN INTEREST OF
THE TIME WITHIN WHICH SUCH PARTIES MAY FILE WITH THE COURT THEIR
OBJECTIONS TO SUCH PLAN, AND SUCH PARTIES SHALL FILE, WITHIN SUCH TIME
AS MAY BE FIXED IN SAID NOTICE, DETAILED AND SPECIFIC OBJECTIONS IN
WRITING TO THE PLAN AND THEIR CLAIMS FOR EQUITABLE TREATMENT.  THE
JUDGE SHALL, AFTER NOTICE IN SUCH MANNER AS HE MAY DETERMINE TO THE
DEBTOR, ITS TRUSTEE OR TRUSTEES, STOCKHOLDERS, CREDITORS, AND THE
COMMISSION, HEAR ALL PARTIES IN INTEREST IN SUPPORT OF, AND IN
OPPOSITION TO, SUCH OBJECTIONS TO THE PLAN AND SUCH CLAIMS FOR
EQUITABLE TREATMENT.  AFTER SUCH HEARING, AND WITHOUT ANY HEARING IF NO
OBJECTIONS ARE FILED, THE JUDGE SHALL APPROVE THE PLAN IF SATISFIED
THAT:  (1) IT COMPLIES WITH THE PROVISIONS OF SUBSECTION (B) OF THIS
OF EACH CLASS OF CREDITORS AND STOCKHOLDERS, DOES NOT DISCRIMINATE
UNFAIRLY IN FAVOR OF ANY CLASS OF CREDITORS OR STOCKHOLDERS, AND WILL
CONFORM TO THE REQUIREMENTS OF THE LAW OF THE LAND REGARDING THE
PARTICIPATION OF THE VARIOUS CLASSES OF CREDITORS AND STOCKHOLDERS;
... 

"...  IF THE JUDGE SHALL APPROVE THE PLAN, HE SHALL FILE AN OPINION,
STATING HIS CONCLUSIONS AND THE REASONS THEREFOR, AND ENTER AN ORDER TO
THAT EFFECT, AND SHALL SEND A CERTIFIED COPY OF SUCH OPINION AND ORDER
TO THE COMMISSION.  THE PLAN SHALL THEN BE SUBMITTED BY THE COMMISSION
TO THE CREDITORS OF EACH CLASS WHOSE CLAIMS HAVE BEEN FILED AND ALLOWED
IN ACCORDANCE WITH THE REQUIREMENTS OF SUBSECTION (C) OF THIS SECTION,
AND TO THE STOCKHOLDERS OF EACH CLASS, AND/OR TO THE COMMITTEES OR
OTHER REPRESENTATIVES THEREOF, FOR ACCEPTANCE OR REJECTION, WITHIN SUCH
TIME AS THE COMMISSION SHALL SPECIFY, TOGETHER WITH THE REPORT OR
REPORTS OF THE COMMISSION THEREON OR SUCH A SUMMARIZATION THEREOF AS
THE COMMISSION MAY APPROVE, AND THE OPINION AND ORDER OF THE JUDGE:
PROVIDED, THAT SUBMISSION TO ANY CLASS OF STOCKHOLDERS SHALL NOT BE
NECESSARY IF THE COMMISSION SHALL HAVE FOUND, AND THE JUDGE SHALL HAVE
AFFIRMED THE FINDING, (A) THAT AT THE TIME OF THE FINDING THE
CORPORATION IS INSOLVENT, OR THAT AT THE TIME OF THE FINDING THE EQUITY
OF SUCH CLASS OF STOCKHOLDERS HAS NO VALUE, OR THAT THE PLAN PROVIDES
FOR THE PAYMENT IN CASH TO SUCH CLASS OF STOCKHOLDERS OF AN AMOUNT NOT
LESS THAN THE VALUE OF THEIR EQUITY, IF ANY,  ...  PROVIDED FURTHER,
THAT SUBMISSION TO ANY CLASS OF CREDITORS SHALL NOT BE NECESSARY IF THE
COMMISSION SHALL HAVE FOUND, AND THE JUDGE SHALL HAVE AFFIRMED THE
FINDING, THAT THE INTERESTS OF SUCH CLASS OF CREDITORS WILL NOT BE
ADVERSELY AND MATERIALLY AFFECTED BY THE PLAN, OR THAT AT THE TIME OF
THE FINDING THE INTERESTS OF SUCH CLASS OF CREDITORS HAVE NO VALUE, OR
THAT THE PLAN PROVIDES FOR THE PAYMENT IN CASH TO SUCH CLASS OF
CREDITORS OF AN AMOUNT NOT LESS THAN THE VALUE OF THEIR INTERESTS....
THE COMMISSION SHALL CERTIFY TO THE JUDGE THE RESULTS OF SUCH
SUBMISSION. 

"UPON RECEIPT OF SUCH CERTIFICATION, THE JUDGE SHALL CONFIRM THE PLAN
IF SATISFIED THAT IT HAS BEEN ACCEPTED BY OR ON BEHALF OF CREDITORS OF
EACH CLASS TO WHICH SUBMISSION IS REQUIRED UNDER THIS SUBSECTION
HOLDING MORE THAN TWO-THIRDS IN AMOUNT OF THE TOTAL OF THE ALLOWED
CLAIMS OF SUCH CLASS WHICH HAVE BEEN REPORTED IN SAID SUBMISSION AS
VOTING ON SAID PLAN, AND BY OR ON BEHALF OF STOCKHOLDERS OF EACH CLASS
TO WHICH SUBMISSION IS REQUIRED UNDER THIS SUBSECTION HOLDING MORE THAN
TWO-THIRDS OF THE STOCK OF SUCH CLASS WHICH HAS BEEN REPORTED IN SAID
SUBMISSION AS VOTING ON SAID PLAN; AND THAT SUCH ACCEPTANCES HAVE NOT
BEEN MADE OR PROCURED BY ANY MEANS FORBIDDEN BY LAW: PROVIDED, THAT, IF
THE PLAN HAS NOT BEEN SO ACCEPTED BY THE CREDITORS AND STOCKHOLDERS,
THE JUDGE MAY NEVERTHELESS CONFIRM THE PLAN IF HE IS SATISFIED AND
FINDS, AFTER HEARING, THAT IT MAKES ADEQUATE PROVISION FOR FAIR AND
EQUITABLE TREATMENT FOR THE INTERESTS OR CLAIMS OF THOSE REJECTING IT;
THAT SUCH REJECTION IS NOT REASONABLY JUSTIFIED IN THE LIGHT OF THE
RESPECTIVE RIGHTS AND INTERESTS OF THOSE REJECTING IT AND ALL THE
RELEVANT FACTS; AND THAT THE PLAN CONFORMS TO THE REQUIREMENTS OF
CLAUSES (1) TO (3), INCLUSIVE, OF THE FIRST PARAGRAPH OF THIS
SUBSECTION (E):... 

"IF IT SHALL BE NECESSARY TO DETERMINE THE VALUE OF ANY PROPERTY FOR
ANY PURPOSE UNDER THIS SECTION, THE COMMISSION SHALL DETERMINE SUCH
VALUE AND CERTIFY THE SAME TO THE COURT IN ITS REPORT ON THE PLAN.  THE
VALUE OF ANY PROPERTY USED IN RAILROAD OPERATION SHALL BE DETERMINED ON
A BASIS WHICH WILL GIVE DUE CONSIDERATION TO THE EARNING POWER OF THE
PROPERTY, PAST, PRESENT, AND PROSPECTIVE, AND ALL OTHER RELEVANT
FACTS.  IN DETERMINING SUCH VALUE ONLY SUCH EFFECT SHALL BE GIVEN TO
THE PRESENT COST OF REPRODUCTION NEW AND LESS DEPRECIATION AND ORIGINAL
COST OF THE PROPERTY, AND THE ACTUAL INVESTMENT THEREIN, AS MAY BE
REQUIRED UNDER THE LAW OF THE LAND, IN LIGHT OF ITS EARNING POWER AND
ALL OTHER RELEVANT FACTS." 

FN10  318 U.S. AT 472, 473, 477; CONCURRING OPINION AT 512; 318 U.S.
AT 545. 

FN11  318 U.S. AT 475-76; 318 U.S. AT 536-39.  COMPARE WRIGHT V.
UNION CENTRAL INS. CO., 311 U.S. 273, 279; JOHN HANCOCK INS. CO. V.
BARTELS, 308 U.S. 180, 186; GELFERT V. NATIONAL CITY BANK, 313 U.S.
221. 

FN12  47 STAT. 1474. 

FN13  49 STAT. 911.  H. REP. NO. 1283, 74TH CONG., 1ST SESS., P. 1;
S. REP. NO. 1336, 74TH CONG., 1ST SESS., P. 1; CRAVEN & FULLER,
AMENDMENTS OF RAILROAD BANKRUPTCY LAW, 49 HARV. L. REV. 1254.  SEE
ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. AT 470, ET SEQ. 

FN14  H.R. 5924, 79TH CONG., 2D SESS.; HEARINGS ON H.R. 4779, 79TH
CONG., 1ST SESS., SERIAL NO. 13; H. REP. NO. 1838, 79TH CONG., 2D
SESS., P. 3: 

"ALTHOUGH ALL THESE LAWS WERE INTENDED BY CONGRESS FOR THE
PRESERVATION OF OUR RAILROADS AND THEIR OWNERSHIP, THE THEORY HAS
APPEARED TO PREVAIL THAT THE CAPITALIZATION OF COMPANIES IN SECTION 77
PROCEEDINGS SHOULD IN ALL CASES BE DRASTICALLY REDUCED.  THAT IS WHAT
HAS BEEN DONE CONSISTENTLY AND PERSISTENTLY.  UNDER THE PAST
ADMINISTRATION OF SECTION 77, AS THAT STATUTE WAS INTERPRETED AND
APPLIED BY THE INTERSTATE COMMERCE COMMISSION AND AFFIRMED BY THE
SUPREME COURT, COUNTLESS THOUSANDS OF SMALL STOCKHOLDERS ALREADY HAVE
BEEN WIPED OUT, AND THEIR INVESTMENTS, WHICH WOULD NOW BE OF GREAT
VALUE, WERE USELESSLY DESTROYED.  THERE ARE MANY MORE THOUSANDS UPON
THOUSANDS OF SUCH STOCKHOLDERS WHOSE INVESTMENTS ARE IMMINENTLY
THREATENED WITH A LIKE FATE, UNLESS CONGRESS PROMPTLY ENACTS
LEGISLATION TO PREVENT SUCH NEEDLESS LOSS.  AND THAT LOSS - AGGREGATING
OVER $2,000,000,000 - WOULD BE SUFFERED LARGELY BY A WIDELY SCATTERED
CLASS OF CITIZENS (MANY THOUSANDS OF WHOM ARE EMPLOYEES OF THESE VERY
RAILROADS) WHO INVESTED THEIR LEGACIES OR THEIR SAVINGS IN ONE OF
AMERICA'S GREATEST PRIVATE ENTERPRISES, FOR EDUCATION OF THEIR
CHILDREN, THE PURCHASE OF HOMES, OR SECURITY IN OLD AGE.  IT LITERALLY
MAY BE SAID THAT THESE STOCKS WERE THE FAVORITE INVESTMENTS OF WIDOWS
AND ORPHANS AND OF TRUSTEES." 

S. RES. 192, 79TH CONG., 1ST SESS.; S. REP. NO. 925, 79TH CONG, 2D
SESS.; S. 1253, 79TH CONG., 2D SESS.; HEARINGS ON S. 1253, 79TH CONG.,
1ST SESS., VOLUNTARY MODIFICATION OF RAILROAD FINANCIAL STRUCTURES;
HEARINGS ON S. 1253, 79TH CONG., 2D SESS., MODIFICATION OF RAILROAD
FINANCIAL STRUCTURES, PART 2; S. REP. NO. 1170, 79TH CONG., 2D SESS.,
PP. 1-2: 

"THE BILL (S. 1253) ENABLES RAILROAD COMPANIES TO ADJUST THEIR
FINANCIAL AFFAIRS QUICKLY, ECONOMICALLY, AND ON A BUSINESS BASIS.  THE
PROCEDURE IT PROVIDES WILL REDUCE ANY DISTURBANCE OF THEIR AFFAIRS TO A
MINIMUM, AND WILL PROVIDE THE MAXIMUM OF PROTECTION FOR BOTH THE
RAILROADS AND THEIR INVESTORS. 

"THE EXISTING LAW, SECTION 77, WAS ENACTED IN 1933, WITHOUT HEARINGS
AND WITHOUT CONSIDERATION BY ANY SUBCOMMITTEE OR COMMITTEE OF THE
SENATE.  IT WAS ENACTED IN THE BELIEF THAT IT WOULD HELP RAILROADS TO
CORRECT THEIR FINANCIAL AFFAIRS.  IT WAS FOUND TO DO THE OPPOSITE.  IT
HAS PLACED IN THE HANDS OF GOVERNMENT OFFICIALS EXTRAORDINARY POWER,
WHICH THEY HAD NOT REQUESTED, OVER 25 PERCENT OF THE COUNTRY'S RAILROAD
MILEAGE - A POWER WHICH THEY HAVE EXERCISED: 

(1)  TO DEMOLISH EVERY PART OF THE FINANCIAL AND CORPORATE STRUCTURES
OF THOSE RAILROADS; 

(2)  TO PLAN IN EVERY RESPECT THE FINANCIAL AND CORPORATE FUTURE OF
THOSE RAILROADS; 

(3)  TO PICK MEN TO CONTROL THOSE RAILROADS; AND 

(4)  TO DECREE THE FORFEITURE OF $2 1/2 BILLION OF INVESTMENTS. 

"THE PRESENT BILL PUTS AN END TO EVERY ONE OF THOSE POWERS AND
RESTORES THE OPERATION OF RAILROADS TO THEIR MANAGEMENTS AND THE
ADJUSTMENT OF THEIR FINANCES TO THE COMPANIES THEMSELVES, WITH THE
ASSISTANCE OF THEIR SECURITYHOLDERS, WHERE NECESSARY." 

SEE A CRITICAL ANALYSIS OF RECENT REORGANIZATION DECISIONS OF THE
SUPREME COURT OF THE UNITED STATES, F.C. NICODEMUS, JR., HEARINGS ON
H.R. 4779, SUBSEQUENTLY H.R. 5924, 79TH CONG., 1ST SESS., P. 181. 

FN15  53 STAT. 1134; 56 STAT. 787.  A BILL TO EXTEND THIS ACT TO
1950, H.R. 3429, WAS PASSED BY THE HOUSE OF REPRESENTATIVES ON NOVEMBER
1, 1945, 91 CONG. REC. 10276; H. REP. NO. 1128, 79TH CONG., 1ST SESS. 

FN16  FULL DETAILS OF THE PROPERTIES, THE ELEMENTS OF RATE-MAKING
VALUE, THE CORPORATE HISTORY, THE CAPITAL STRUCTURE AT THE BEGINNING OF
THE REORGANIZATION PROCEEDINGS, THE TRAFFIC AND EARNINGS APPEAR
THROUGHOUT THE VARIOUS REPORTS OF THE COMMISSION, PARTICULARLY THE
ORIGINAL REPORT IN 233 I.C.C. 515.  THE LOCATION AND EXTENT OF ITS
PROPERTIES ARE SUCCINCTLY DESCRIBED BY THE COMMISSION AT PAGE 518, AS
FOLLOWS: 

"THE DENVER'S PRINCIPAL EASTERN TERMINI ARE DENVER AND PUEBLO, COLO.,
AT EACH OF WHICH POINTS CONNECTION IS MADE WITH THE ATCHISON, TOPEKA &
SANTA FE RAILWAY AND THE COLORADO & SOUTHERN RAILWAY.  AT DENVER
CONNECTION IS ALSO MADE WITH THE CHICAGO, BURLINGTON & QUINCY RAILROAD,
THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY, AND THE UNION PACIFIC
RAILROAD; AT PUEBLO, ALSO WITH THE MISSOURI PACIFIC RAILROAD, WHICH IS
THE DENVER'S MAIN OUTLET TO THE EAST. 

"ON THE WEST THE MAIN LINE OF THE DENVER PASSES THROUGH SALT LAKE
CITY AND TERMINATES AT OGDEN, UTAH.  CONNECTION IS MADE WITH THE UNION
PACIFIC AT EACH POINT; AT SALT LAKE CITY THE DENVER ALSO CONNECTS WITH
THE WESTERN PACIFIC RAILROAD AND AT OGDEN WITH THE SOUTHERN PACIFIC. 
THE INTERCHANGE WITH THE WESTERN PACIFIC IS MORE IMPORTANT THAN THAT
WITH ANY OTHER WESTERN CONNECTION. 

"THE ROAD OWNED BY THE DENVER CONSISTS OF 1,256.6 MILES OF MAIN LINE
AND 1,094.9 MILES OF BRANCH LINES.  OPERATED UNDER LEASE ARE THE RIO
GRANDE JUNCTION RAILWAY  ...  EXTENDING FROM RIFLE TO GRAND JUNCTION,
COLO., 62.1 MILES, THE GOSHEN VALLEY RAILROAD, A BRANCH LINE 8.8 MILES
IN LENGTH, AND THE SALT LAKE WESTERN, EXTENDING FROM DOTSERO, ON THE
DENVER, TO ORESTOD ON THE DENVER & SALT LAKE RAILWAY  ...  38.1 MILES. 
INCLUDING THESE LEASED LINES, THE DENVER OPERATES APPROXIMATELY 1,357
MILES OF MAIN LINES AND 1,104 MILES OF BRANCH LINES.  APPROXIMATELY 771
MILES OF NARROW-GAGE LINES ARE INCLUDED IN THE OPERATED MILEAGE. 

"IN ADDITION TO THE ABOVE-MENTIONED MILEAGES, THE DENVER OPERATES
OVER THE SALT LAKE, BETWEEN DENVER AND ORESTOD, 128.6 MILES.  THIS
LINE, TOGETHER WITH THE SALT LAKE WESTERN, CONSTITUTES THE DOTSERO CUT
OFF ROUTE.  THE SALT LAKE'S OWNERSHIP EMBRACES THE LINE EXTENDING FROM
UTAH JUNCTION, NEAR DENVER, TO THE WESTERN TERMINUS AT CRAIG, COLO.,
220.2 MILES.  FOR ITS DENVER TERMINAL, THE SALT LAKE USES, UNDER A
LEASE, THE FACILITIES OF THE NORTHWESTERN TERMINAL RAILROAD COMPANY. 
THE SALT LAKE DERIVES NO REVENUES FROM THE THROUGH TRAFFIC MOVING OVER
THE CUT-OFF, SINCE ALL SUCH TRAFFIC IS HANDLED BY THE DENVER."    FN17
SEE DENVER & SALT LAKE WESTERN R. CO. CONSTRUCTION, 154 I.C.C. 51; 175
I.C.C. 535; 233 I.C.C. AT 520. 

FN18  THE REPORTS SHOW THE INCOME AVAILABLE FOR INTEREST AS FOLLOWS: 

1942........... $17,044,420.39 

1943...........  11,573,667.94 

1944...........   8,157,880.25 

FN19  318 U.S. AT 482 AND 483; 318 U.S. AT 539-541. 

FN20  ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. AT 475-76.    FN21
233 I.C.C. 578-81. 

FN22  254 I.C.C. AT 359. 

FN23  SEE FOR DISCUSSION OF THE FORMULAE 233 I.C.C. AT 581 ET SEQ.;
254 I.C.C. AT 16 AND 359-76. 

FN24  RIO GRANDE WESTERN CONSOLIDATED, 254 I.C.C. AT 365: "LOSS IN
EARNINGS POSITION AND SURRENDER OF OTHER RIGHTS, IN OUR OPINION, ARE
OFFSET BY THE POSSIBILITY OF INCREASED RETURN PERMITTED BY THE 4
1/2PERCENT INCOME BONDS, 5-PERCENT CONVERTIBLE PREFERRED STOCK,
UNLIMITED DIVIDENDS ON COMMON STOCK, AND THE OTHER FEATURES OF THE
PLAN." 

DENVER & RIO GRANDE CONSOLIDATED, ID. AT 364:  "THIS APPARENT CHANGE
IN EARNINGS POSITION IS OFFSET BY THE NEW SINKING FUND AND CAPITAL FUND
AND BY THE INCREASED RATE OF RETURN OBTAINABLE FROM THE NEW SECURITIES,
I.E., SLIGHTLY IN EXCESS OF 4.5 PERCENT FOR 64 PERCENT OF THE CLAIM AND
UNLIMITED STOCK DIVIDENDS FOR THE REMAINDER." 

DENVER & RIO GRANDE WESTERN REFUNDING AND IMPROVEMENT, ID. AT 366:
"THEY ALSO WILL RECEIVE WHATEVER DIVIDENDS MAY BE PAID ON 97,706 SHARES
OF COMMON STOCK." 

FN25  ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. AT 509. 

INTEREST ACCRUES ON THE SECURED CLAIMS UNTIL THE EFFECTIVE DATE OF
THE PLAN.  GROUP OF INVESTORS V. MILWAUKEE R. CO., 318 U.S. AT 546. 
COMPARE TICONIC BANK V. SPRAGUE, 303 U.S. 406. 

FN26  318 U.S. 506-509. 

FN27  62 F.SUPP.  AT 390: 

"THE $25,000,000 OR MORE THE TRUSTEES HAVE EXPENDED IN THE
IMPROVEMENT PROGRAM INURES TO THE BENEFIT OF THE COMMON STOCK.  IF THE
LATTER IS WORTH ANYTHING IT IS AS MUCH DUE TO THESE EXPENDITURES AS TO
ANY OTHER FACTOR.  THIS, WITH THE INCREASE IN CURRENT ASSETS AND
WARTIME EARNINGS WHICH COUNSEL SEEM TO BELIEVE ARE PERMANENT,
CONSTITUTE THE ONLY EQUITY BEHIND THE PREFERRED AND COMMON STOCK." 

FN28  254 I.C.C. AT 356. 

FN29  MANKIND'S FORESIGHT IS LIMITED.  THE UNCERTAINTIES OF FUTURE
ESTIMATES ARE RECOGNIZED.  IT IS NOT WITHOUT INTEREST TO NOTE, HOWEVER,
THAT ON APRIL 15, 1946, THE RAILROADS OF THE UNITED STATES PETITIONED
THE INTERSTATE COMMERCE COMMISSION FOR INCREASED FREIGHT RATES AND
CHARGES.  THIS WAS SAID: 

"THE SITUATION OF THE RAILROADS HAS NOW BECOME CRITICAL AND THEIR
NEED FOR A SUBSTANTIALLY HIGHER LEVEL OF FREIGHT RATES HAS BECOME
IMPERATIVE.  THIS IS THE RESULT OF AN EXTRAORDINARY COMBINATION OF WAR
AND POSTWAR CONDITIONS WITH WHICH THE RAILROADS ARE CONFRONTED, AND
MORE PARTICULARLY THE RESULT OF THREE FACTORS OF RECENT DEVELOPMENT:
(1) THE INCREASE IN WAGES OF RAILROAD EMPLOYES OF 16 CENTS PER HOUR
DETERMINED UNDER THE PROCEDURES OF THE RAILWAY LABOR ACT IN APRIL,
1946, RETROACTIVE TO JANUARY 1, 1946; (2) LARGE INCREASES, BOTH PRESENT
AND PROSPECTIVE, IN THE PRICES OF RAILWAY MATERIALS AND SUPPLIES; AND
(3) A SHARP DECLINE IN VOLUME OF RAILWAY TRAFFIC AND AN EVEN GREATER
DECLINE IN RAILWAY REVENUE. 

     .         .         .         .      . 

"THE VOLUME OF FREIGHT AND PASSENGER TRAFFIC IS FALLING CONTINUOUSLY,
AND IT IS ANTICIPATED THAT THE DOWNWARD RATE WILL ACCELERATE IN THE
MONTHS TO COME.  THE REVENUES WILL BE REDUCED BY REASON BOTH OF THE
DECLINE IN VOLUME AND A RETURN TO A MORE NEARLY NORMAL COMPOSITION OF
TRAFFIC.  IT IS ESTIMATED THAT THE OPERATING REVENUES OF CLASS I
RAILROADS FOR 1946, ON THE BASIS OF THE PRESENT RATES, FARES AND
CHARGES, WOULD BE APPROXIMATELY $6,800,000,000, OR 23.5 PER CENT LESS
THAN THEY WERE IN 1945. 

     .         .         .         .         . 

"FREIGHT AND PASSENGER TRAFFIC REACHED THEIR PEAKS IN 1944.  BUT NET
RAILWAY OPERATING INCOME AND NET INCOME BEGAN TO DIMINISH IN 1943 ON
ACCOUNT OF RISING COSTS OF OPERATION.  IN THE FACE OF INCREASING
TRAFFIC THROUGH 1944, BOTH NET RAILWAY OPERATING INCOME AND NET INCOME
MOVED STEADILY DOWNWARD AFTER REACHING THEIR PEAK IN 1942.  WITH THE
CESSATION OF HOSTILITIES IN 1945 THERE BEGAN TO BE A DECLINE ALSO IN
GROSS REVENUES WHICH IS EXPECTED TO BECOME MORE PRONOUNCED AS THE
ABNORMAL WAR CONDITIONS DISAPPEAR, DISABILITIES OF HIGHWAY CARRIERS AND
OTHER AGENCIES OF TRANSPORTATION ARE REMOVED, AND THE PREWAR PATTERN OF
RAILWAY TRAFFIC IS RESUMED." 

THE DENVER APPARENTLY DID NOT VARY GREATLY FROM THIS OVERALL
PICTURE.  ITS NET REVENUE FOR 1945 FROM RAILWAY OPERATIONS DROPPED FROM
$20,569,809 TO $14,246,504.  ITS GROSS OPERATING REVENUE, HOWEVER,
INCREASED FOUR AND A HALF MILLION.  THE LOSS IN NET WAS DUE LARGELY TO
INCREASED AMORTIZATION OF DEFENSE PROJECTS. 

THE MONTHLY REPORT OF REVENUES AND EXPENSES BY THE DENVER FOR JANUARY
AND FEBRUARY OF 1946 SHOWS A DECREASE OF OPERATING REVENUES FROM
$10,856,764 TO $8,932,983. 

FN30  SEE NOTE 24. 

FN31  ACCORDING TO MOODY'S MANUAL (1945) THE NET INCOME OF THE FUEL
COMPANY FOR 1943 WAS $865,140, 1944 $653,901, AND EARNED SURPLUS AT THE
END OF THE LATTER YEAR $4,862,980. 

FN32  OBVIOUSLY, THE FUEL STOCK OR ITS PROCEEDS COULD BE DISTRIBUTED
TO RECORD HOLDERS OF THE OLD SECURITIES AS OF THE DATE OR DATES OF
DISTRIBUTION OF THE NEW SECURITIES. 

FN33  THERE IS A CERTAIN ILLOGIC IN THE POSITION OF FIRST
CONSOLIDATED BONDS IN ASSERTING ANY RIGHTS IN THE COLLATERAL AT ALL. 
IF, AS THEY CONCEDE AND WE NOW HOLD, THEY ARE ENTITLED TO BE PAID IN
FULL IN NEW SECURITIES WITHOUT REGARD TO THE COLLATERAL, IT MAY BE THAT
THEY HAVE BEEN FULLY PAID BY THE NEW SECURITIES GIVEN THEM SINCE THEY
DO NOT COMPLAIN OF THEIR TREATMENT UNDER THE PLAN.  SINCE THEY ARE
ENTITLED ONLY TO FULL PAYMENT IT WOULD THEN SEEM TO FOLLOW THAT THEY
HAVE NO RIGHTS AGAINST THE COLLATERAL.  WE SHOULD NOT BE TAKEN AS
DECIDING THIS QUESTION, HOWEVER, SINCE WE LEAVE IT TO AN INDEPENDENT
SUIT IN WHICH THERE IS JURISDICTION OVER THE PROPER PARTIES. 

FN34  CLAUSES (2) TO (3) ARE NOT INVOLVED.  THEY RELATE TO EXPENSES,
FEES AND COSTS. 

FN35  H. REP. NO. 1283, 74TH CONG., 1ST SESS., P. 18.  S. REP. NO.
1336, 74TH CONG., 1ST SESS., P. 3, CONTAINS THE FOLLOWING STATEMENT:
"FURTHER, THE CONSENT OF TWO-THIRDS OF EACH CLASS OF STOCKHOLDERS MUST
BE ACQUIRED, UNLESS, BY AN ELABORATE VALUATION PROCEEDING, IT IS PROVED
THAT THE VALUE OF THE PROPERTY IS SO LOW THAT THE STOCK HAS NO
INTEREST.  THIS IS AN EFFECTIVE OBSTRUCTION.... 

"IN ORDER TO REMEDY THESE DEFECTS, S. 1634, AS AMENDED, PROVIDES THAT
TWO-THIRDS OF THOSE OF EACH CLASS WHO VOTE UPON A PLAN WILL BIND THE
DISSENTERS OR THOSE FAILING TO VOTE.  BUT IT ALSO PROVIDES THAT THE
COURT MAY MAKE EFFECTIVE A FAIR PLAN WHERE THE PARTIES DO NOT AGREE....
IF TWO-THIRDS OF EACH CLASS CONSENT, THE PLAN WILL BIND THE REMAINDER
OF EACH CLASS.  BUT THE JUDGE MAY MAKE THE PLAN EFFECTIVE, EVEN IF NOT
SO ACCEPTED, IF HE FINDS THAT IT CONFORMS TO THE REQUIREMENTS JUST
STATED, PROVIDES FAIR AND EQUITABLE TREATMENT FOR THE INTERESTS OF
THOSE REJECTING IT, AND THAT THEIR REJECTION IS NOT REASONABLY
JUSTIFIED IN THE LIGHT OF THE RESPECTIVE RIGHTS AND INTERESTS.  THESE
PROVISIONS GIVE COMPLETE DUE PROCESS OF LAW FROM A PROCEDURAL
STANDPOINT, THERE BEING PROVISION FOR FULL HEARINGS BOTH BEFORE THE
COMMISSION AND THE COURT.  WITHIN THE BROAD POWERS OF CONGRESS UNDER
THE BANKRUPTCY CLAUSE AS RECENTLY DECLARED BY THE SUPREME COURT IN
CONTINENTAL ILLINOIS BANK & TRUST CO. V. CHICAGO, ROCK ISLAND & PACIFIC
RY. CO. (55 SUP. CT. REP. 595), THE PROVISIONS ALSO AFFORD DUE PROCESS
OF LAW IN FULLY PROTECTING THE PROPERTY RIGHTS WHICH ARE INVOLVED." 

SEE ALSO HEARINGS, HOUSE JUDICIARY COMMITTEE, 74TH CONG., 1ST SESS.,
ON H.R. 6249, SERIAL 3, PP. 15 AND 22. 

FN36  WRIGHT V. UNION CENTRAL INS. CO., 311 U.S. AT 278, AND
DISCUSSION AT P. 509, SUPRA. 

FN37  CF. I.C.C. V. JERSEY CITY, 322 U.S. 503, 515. 

FN38  62 F.SUPP.  384. 

FN39  SEC. 77(D), NOTE 9 SUPRA.  318 U.S. AT 473; 318 U.S. AT 544. 

FN40  SEE CONCURRENCE OF COMMISSIONER EASTMAN, WESTERN PACIFIC R. CO.
REORGANIZATION, 233 I.C.C. AT 437. 

MR. JUSTICE FRANKFURTER DISSENTS, AND WILL SET FORTH THE DETAILED
GROUNDS FOR HIS DISSENT IN AN OPINION TO BE FILED HEREAFTER. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE FRANKFURTER, DISSENTING* . 

*FILED OCTOBER 28, 1946. 

ON NOVEMBER 1, 1935, THE DENVER AND RIO GRANDE WESTERN RAILROAD
COMPANY AND THE DENVER AND SALT LAKE WESTERN RAILROAD COMPANY
(HEREINAFTER COMPENDIOUSLY CALLED "THE DEBTOR"), INITIATED THESE
PROCEEDINGS FOR THEIR REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY
ACT.  49 STAT. 911(1935), 11 U.S.C. SEC. 205.  THE PLAN OF
REORGANIZATION HERE IN CONTROVERSY WAS APPROVED BY THE INTERSTATE
COMMERCE COMMISSION ON JUNE 14, 1943.  254 I.C.C. 349, 385.  THE
DISTRICT COURT APPROVED THE PLAN FOR NECESSARY SUBMISSION TO THE
VARIOUS CLASSES OF CREDITORS.  C.C.H. BANKRUPTCY LAW SERVICE P54,562. 
ALL CLASSES EXCEPT THE HOLDERS OF THE GENERAL MORTGAGE BONDS ACCEPTED
THE PLAN.  ON THE EFFECTIVE DATE OF THE PLAN, THE CLAIMS OF THESE
GENERAL BONDHOLDERS CONSTITUTED ABOUT ONE-FOURTH OF THE DEBTOR'S ENTIRE
DEBT.  JUST SHORT OF EIGHTY PERCENT OF THIS CLASS OF CREDITORS (79.33%)
VOTED TO REJECT THE PLAN.  CONGRESS HAS MADE THE RIGHT OF ANY CLASS TO
REJECT A PLAN SUBJECT TO THE POWER OF A DISTRICT COURT TO OVERRIDE SUCH
REJECTION, IF THE JUDGE "IS SATISFIED AND FINDS ...  THAT SUCH
REJECTION IS NOT REASONABLY JUSTIFIED IN THE LIGHT OF THE RESPECTIVE
RIGHTS AND INTERESTS OF THOSE REJECTING IT AND ALL THE RELEVANT FACTS
..."  49 STAT. 911, 919(1935), 11 U.S.C. SEC. 205(E).  THE DISTRICT
COURT ON NOVEMBER 1, 1944, FOUND THAT ALL THE REQUIREMENTS OF THE
STATUTE HAD BEEN MET, AND CONFIRMED THE PLAN.  62 F.SUPP.  384.  BUT
THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT, A STRONG BENCH, ON
MAY 10, 1945, FOUND THAT "THE GENERAL BONDHOLDERS WERE REASONABLY
JUSTIFIED, WITHIN THE MEANING OF THE STATUTE, IN REJECTING THE PLAN,
AND THAT THE DISTRICT COURT WAS WITHOUT AUTHORITY TO CONFIRM THE PLAN
IN THE FACE OF THEIR ADVERSE VOTE."  150 F.2D 28, 40.  ON A FAIR
CONSTRUCTION OF THE REQUIREMENTS OF CONGRESS FOR THE ADJUDICATION OF
RAILROAD REORGANIZATIONS, AS APPLIED TO THE SITUATION BEFORE US, I
CANNOT ESCAPE AGREEMENT WITH THE CIRCUIT COURT OF APPEALS. 

RAILROAD REORGANIZATIONS ARE SO ENSHROUDED IN THE CONFUSING
INTRICACIES OF HIGH FINANCE THAT THE TRUE NATURE OF DECISIVE ISSUES IS
TOO OFTEN LOST TO VIEW.  IT MAY BE USEFUL TO AN APPRECIATION OF WHAT
APPEARS TO ME TO BE THE CRUX OF THE CASE TO PUT A SITUATION THAT IS
SUFFICIENTLY ANALOGOUS BUT MUCH MORE FAMILIAR.  IN THE EARLY DEPRESSION
YEARS THE BIG LIFE INSURANCE COMPANIES FORECLOSED A LARGE NUMBER OF
FARMS.  THE FORECLOSURE PROCESS, WE ASSUME, INVOLVED THE CONTROL OF THE
FARM AND ALL ITS INCOME BY A JUDGE.  THE HYPOTHETICAL FARM BEGAN TO
MAKE A FAIR INCOME, ENOUGH TO PAY THE INSURANCE COMPANY A CONSIDERABLE
PART, IF NOT THE WHOLE, OF THE ANNUAL INTEREST.  BUT INSTEAD OF PAYING
THE INTEREST, THE JUDGE APPLIED THE MONEY TO REBUILD THE HOMESTEAD, TO
ADD A NEW BARN, TO PURCHASE AN ADJACENT FIELD, THE MOST MODERN
MACHINERY AND ADDITIONAL HEAD OF CATTLE.  THEREBY THE FARM BECAME FAR
MORE VALUABLE THAN AT ANY TIME SINCE THE INSURANCE COMPANY PLACED THE
MORTGAGE ON IT.  MOREOVER, THE JUDGE RETAINED AS CASH IN THE BANK A
PORTION OF THE INCOME SUFFICIENT TO PAY OFF AT LEAST TWENTY PERCENT OF
THE MORTGAGE.  THE FARMER THINKS HE OUGHT TO BE ALLOWED TO USE THE CASH
TO REDUCE THE MORTGAGE, SHOULD BE GIVEN CREDIT FOR THE INCOME WHICH THE
JUDGE USED TO MAKE THE CONSIDERABLE IMPROVEMENTS AND WHICH COULD HAVE
BEEN USED TO REDUCE THE MORTGAGE.  THIS WOULD APPEAR TO BE A NATURAL
ATTITUDE ON THE PART OF THE FARMER, AND IT WOULD HARDLY SEEM THAT HE
WAS NOT REASONABLY JUSTIFIED TO RESIST THE CLAIM OF THE INSURANCE
COMPANY TO THE FARM, WITH ALL ITS IMPROVEMENTS AS WELL AS THE CASH IN
BANK. 

THIS SIMPLE ANALOGY MAY LOOK ALMOST TRIFLING ALONGSIDE THE
COMPLICATED DETAILS INVOLVED IN A PLAN FOR THE REORGANIZATION OF A
RAILROAD SYSTEM.  BUT IS IT AN OVERSIMPLIFICATION OF THE CONTROLLING
ISSUE, NAMELY, WAS THE CIRCUIT COURT OF APPEALS WRONG IN HOLDING THAT
THE GENERAL BONDHOLDERS WERE "REASONABLY JUSTIFIED" IN REJECTING THE
PLAN?  LET THE FACTS, CLEARLY AND FAIRLY STATED IN THE OPINIONS BELOW,
SPEAK FOR THEMSELVES.  JUDGE HUXMAN THUS SUMMARIZES THE COURT'S
CONCLUSION THAT THE GENERAL BONDHOLDERS HAD "A REAL GRIEVANCE": 

"ON NOVEMBER 1, 1935, THE DEBTOR'S TOTAL DEBTS SENIOR TO THE CLAIM OF
THE GENERAL BONDHOLDERS WAS SLIGHTLY OVER $101,000,000.  THE GENERAL
BONDHOLDERS' CLAIMS AT THAT TIME WERE APPROXIMATELY $30,000,000, MAKING
THE TOTAL OF THE TWO CLAIMS APPROXIMATELY $131,000,000.  ANY ONE OF THE
TEN PLANS OF REORGANIZATION PRIOR TO THE FINAL ONE FIXED THE VALUE OF
THE PROPERTY AT MORE THAN ENOUGH TO SATISFY THE CLAIMS OF ALL
BONDHOLDERS IN FULL, AS OF THE DATE THIS PROCEEDING WAS INSTITUTED. 
DURING THE TEN INTERVENING YEARS, THE CLAIM OF THE SENIOR BONDHOLDERS
INCREASED TO MORE THAN $139,000,000, AND THAT OF THE GENERAL
BONDHOLDERS TO MORE THAN $43,500,000, MAKING A TOTAL OF MORE THAN
$182,000,000, REQUIRED FOR THE TWO CLASSES OF CLAIMS. 

DURING ALL OF THIS PERIOD THE DEBTOR ENJOYED SUBSTANTIAL INCOME,
AMOUNTING TO APPROXIMATELY $50,000,000.  INSTEAD OF USING THIS INCOME
IN PAYMENT OF INTEREST ON THE SENIOR CLAIMS, IT WAS USED IN MAKING
PERMANENT AND LASTING IMPROVEMENTS IN THE ROAD.  MORE THAN $43,000,000
WAS USED IN THIS WAY.  NONE OF THESE EXPENDITURES HAS RESULTED IN A
COMPARABLE INCREASE OR IN ANY SUBSTANTIAL INCREASE IN THE FINAL
VALUATION, OVER THE VALUATION PRIOR TO THE MAKING OF THE IMPROVEMENTS. 
BUT AS A RESULT OF THIS OPERATION, THE POSITION OF THE GENERAL
BONDHOLDERS HAS DETERIORATED FROM A 100 PER CENT PARTICIPATION IN THE
AMOUNT OF THEIR CLAIMS TO A MERE TEN PER CENT.  NOR DOES IT CHANGE THE
PICTURE TO SAY THAT THESE IMPROVEMENTS WERE NECESSARY TO THE RAILROAD
SYSTEM.  THE FACT STILL REMAINS THAT EARNINGS IN WHICH ALL HAD A VITAL
INTEREST WERE USED IN BUILDING A NEW RAILROAD IN MANY RESPECTS, WHICH
WILL BE HANDED OVER TO THE SENIOR BONDHOLDERS, AND THE GENERAL
BONDHOLDERS WILL PRACTICALLY BE ELIMINATED AS A RESULT THEREOF.    BUT
THIS ALONE DOES NOT ENTITLE THE GENERAL BONDHOLDERS TO A GREATER
PARTICIPATION IN THE REORGANIZED COMPANY.  NEITHER DOES IT CONDEMN THE
PLAN OF REORGANIZATION OR THE CAPITAL STRUCTURE SET UP THEREIN.  THE
OPERATION OF A RAILROAD INVOLVES THE EXPENDITURE OF LARGE SUMS FOR
OPERATION.  IT INVOLVES THE FORMULATION OF PLANS OF OPERATION AND THE
EXERCISE OF JUDGMENT AND DISCRETION.  IF, IN THE EXERCISE OF THIS
DISCRETION, FUNDS ARE UNWISELY SPENT, FROM THE VIEWPOINT OF THE
INTEREST OF ALL CREDITORS, THEY MAY FEEL AGGRIEVED, BUT THEY HAVE NO
LEGAL CAUSE OF COMPLAINT. 

NEITHER WAS THE COMMISSION COMPELLED TO, NOR WOULD IT BE JUSTIFIED IN
ADDING THE AMOUNT OF THESE EXPENDITURES TO THE CAPITALIZED VALUE IF IN
THE EXERCISE OF SOUND DISCRETION IT FELT THAT THE REASONABLE
PROSPECTIVE EARNINGS OF THE ROAD, AFTER THE IMPROVEMENTS DID NOT
JUSTIFY IT.  HOWEVER, IN THE FACE OF ALL THIS, AFTER SATISFYING IN FULL
THE CLAIMS OF THE SENIOR BONDHOLDERS, THE PLAN OF REORGANIZATION SHOULD
HAVE MADE SURE THAT ALL EXCESS CURRENT ASSETS, AS WELL AS ALL EXCESS
WAR PROFITS YET TO ACCRUE, WOULD GO TO THE GENERAL BONDHOLDERS. 

THE COMMISSION, AS POINTED OUT, ADOPTED A CONSERVATIVE, SOUND
ESTIMATE OF THE PROSPECTIVE EARNINGS OF THE REORGANIZED COMPANY.  FOR
THIS IT IS NOT TO BE CRITICIZED.  AN OVER-OPTIMISTIC VIEW WOULD AGAIN
SURELY LEAD THE DEBTOR INTO THE BANKRUPTCY COURTS, WITH WHICH IT HAS
HAD TOO MUCH ACQUAINTANCE ALREADY N7.  WE, HOWEVER, FEEL THAT THERE IS
MORE THAN A SPECULATIVE PROBABILITY THAT THESE WAR INDUSTRIES WHICH
HAVE BEEN CONSTRUCTED ALONG THE SYSTEM, AS WELL AS THE IMPROVEMENTS
WHICH HAVE BEEN MADE BY THE USE OF THESE NET EARNINGS, MIGHT PRODUCE
GREATER NET RETURNS THAN ANTICIPATED IN THE PLAN.  IF SUCH SHOULD BE
THE CASE, THEY CERTAINLY BELONG TO THE GENERAL BONDHOLDERS AND NOT TO
THE SENIORS, AND THE PLAN SHOULD BRING THIS ABOUT.  IT COULD BE DONE BY
ISSUING TO THE GENERAL BONDHOLDERS AN ADDITIONAL AMOUNT OF A
SUBORDINATE STOCK WHICH WOULD RECEIVE RETURNS ONLY FROM EXCESS
DIVIDENDS.  THIS IS A MERE SUGGESTION ON OUR PART, AND IN NO WISE
BINDING ON THE COMMISSION.  OUR DUTY IS LIMITED TO POINTING OUT DEFECTS
IN THE PLAN.  IT IS THE RESPONSIBILITY OF THE COMMISSION TO CORRECT
THEM. 

                          THE JUNCTION BONDS 

WE THINK THAT THE COMPLAINT AS TO THE MANNER IN WHICH THE JUNCTION
BONDS WERE HANDLED IS WELL TAKEN.  THE RIO GRANDE JUNCTION RAILROAD IS
A WHOLLY OWNED SUBSIDIARY OF THE DEBTOR.  IT HAD BONDS OUTSTANDING IN
THE HANDS OF THE PUBLIC FOR THE PAYMENT OF WHICH THE DEBTOR WAS LIABLE,
TOTALING $2,758,333.  THIS CLAIM WAS SENIOR TO THAT OF THE GENERAL
BONDHOLDERS.  THE PLAN SET ASIDE SECURITIES FOR THE PAYMENT OF THIS
CLAIM.  IN AN ORDER DATED SEPTEMBER 13, 1943, THE DISTRICT COURT
DIRECTED THE TRUSTEE TO PAY THIS CLAIM WITH SOME OF THE SURPLUS CASH ON
HAND, AND RETAINED THE SECURITIES WHICH WERE TO BE USED IN THE PAYMENT
THEREOF IN THE TREASURY OF THE COMPANY.  THE COURT TREATED THE
TRANSACTION AS A PURCHASE OF SECURITIES RATHER THAN A PAYMENT OF A
DEBT.  THIS IS A PLAY UPON WORDS, AND, IN ANY EVENT, IS IMMATERIAL TO
THE ISSUE.  THE FACT REMAINS THAT THE NEW CAPITALIZATION PROVIDED
SECURITIES FOR THE PAYMENT OF THESE BONDS.  THE VALUE BEHIND THESE
SECURITIES IN NO WISE BELONGED TO THE SENIOR BONDHOLDERS, BECAUSE THEY
HAD BEEN PAID IN FULL.  WHEN SURPLUS CASH WAS USED TO PAY THIS CLAIM,
THE VALUE BEHIND THE SECURITIES SET ASIDE FOR THAT PURPOSE REMAINED
UNDISTRIBUTED.  SINCE THE SENIOR BONDHOLDERS HAD BEEN SATISFIED IN
FULL, THIS UNDISTRIBUTED VALUE IN ALL EQUITY AND FAIRNESS BELONGED TO
THE GENERAL BONDHOLDERS.  ANY PLAN WHICH DOES NOT GIVE IT TO THEM DOES
NOT COMPLY WITH THE REQUIREMENTS OF SECTION 77, SUB. E, OF THE ACT." 
150 F.2D 28, 38-39. 

INASMUCH AS THE DECISION IN THIS CASE SEEMS TO ME TO TURN ON AN
ADEQUATE APPRECIATION OF THE FACTS, I DEEM IT IMPORTANT TO QUOTE THE
ANALYSIS OF THE SITUATION ON THE BASIS OF WHICH JUDGE PHILLIPS REACHED
HIS CONCLUSION: 

"ON NOVEMBER 1, 1935, DURING THE DEPTHS OF THE NATIONAL DEPRESSION,
THE DEBTOR CAME INTO COURT FOR REORGANIZATION.  AT THAT TIME THE
DEBTOR'S SENIOR DEBTS AHEAD OF THE GENERAL MORTGAGE BONDS AGGREGATED
SLIGHTLY OVER $101,000,000 AND THE CLAIM OF THE GENERAL MORTGAGE
BONDHOLDERS AGGREGATED ABOUT $30,000,000.  WITH AN IMMEDIATE
REORGANIZATION, A CAPITALIZATION OF $132,000,000 WOULD HAVE BEEN
ADEQUATE TO GIVE THE GENERAL MORTGAGE BONDHOLDERS NEW STOCK EQUAL TO
100 PER CENT OF THEIR CLAIM.  NO CAPITALIZATION OR VALUATION EVER
PROPOSED FOR THE DEBTOR, IN ANY PLAN PRESENTED, HAS BEEN THAT LOW. 
DURING THE EIGHT YEARS' DELAY IN REORGANIZATION (IN NOWISE DUE TO THE
GENERAL MORTGAGE BONDHOLDERS, BUT, AT LEAST IN PART, TO CONTROVERSIES
AMONG THE SENIOR SECURITY HOLDERS) AND UP TO JANUARY 1, 1943, THE
EFFECTIVE DATE OF THE PLAN, THE CLAIMS OF THE SENIOR SECURITY HOLDERS,
DUE TO THE ACCRUAL AND NONPAYMENT OF INTEREST, INCREASED ABOUT
$38,000,000.  THE DEBTOR'S NET INCOME AVAILABLE FOR INTEREST DURING THE
TRUSTEESHIP TO THE END OF 1944 AMOUNTED TO $49,420,972.  IT EXCEEDED BY
APPROXIMATELY $9,500,000 THE INTEREST CHARGES WHICH ACCRUED ON THE
CLAIMS OF SENIOR SECURITY HOLDERS TO THE END OF THAT YEAR.  AS OF
DECEMBER 31, 1935, THE DEBTOR'S CURRENT ASSETS WERE $9,727,230 LESS
THAN ITS CURRENT LIABILITIES.  AS OF DECEMBER 31, 1944, THE DEBTOR'S
CURRENT ASSETS EXCEEDED ITS CURRENT LIABILITIES BY $12,125,863.50. 
THUS, IT WILL BE SEEN THERE HAS BEEN A FAVORABLE CHANGE IN THE CURRENT
SITUATION OF $21,853,093, AND, MOREOVER, SINCE THE PLAN WAS FORMULATED,
THE JUNCTION BONDS HAVE BEEN PAID AND EQUIPMENT OBLIGATIONS HAVE BEEN
REDUCED FROM $5,758,000, THE AMOUNT PROVIDED FOR IN THE PLAN, TO
$4,540,000, A REDUCTION IN THAT REQUIREMENT OF $1,218,000. 

APPROXIMATELY $43,000,000 OF THE INCOME AVAILABLE, BUT NOT USED, FOR
THE PAYMENT OF INTEREST HAS BEEN EXPENDED IN PERMANENT IMPROVEMENTS AND
BETTERMENTS.  WHILE THE INVESTMENT VALUE OF THE DEBTOR'S PROPERTY THUS
WAS SUBSTANTIALLY INCREASED, THE COMMISSION'S VALUATION, BASED ON
ESTIMATED FUTURE EARNINGS, WAS NOT INCREASED PROPORTIONATELY.  AS A
RESULT, THE CLAIM OF THE SENIOR SECURITY HOLDERS HAS INCREASED AND THE
PARTICIPATION OF THE GENERAL MORTGAGE BONDHOLDERS HAS BEEN PRESSED
DOWNWARD UNTIL IT IS NOW FIXED AT 10 PER CENT OF THE NEW COMMON STOCK. 
MANY OF THE IMPROVEMENTS AND BETTERMENTS REFERRED TO ABOVE HAVE
SUBSTANTIALLY INCREASED THE CAPACITY OF THE RAILROAD TO HANDLE
INCREASED TRAFFIC AS IT ARISES.  CENTRAL TRAIN CONTROL INSTALLED IN
MANY SEGMENTS, WHERE THE GREATEST DENSITY OF TRAFFIC OBTAINS, GIVES TO
THOSE SEGMENTS, IN A LARGE DEGREE, THE EQUIVALENT OF A DOUBLE-TRACK
RAILROAD AND INCREASES THE NUMBER OF TRAINS THAT CAN BE OPERATED OVER
THE ROAD AND THE VOLUME OF TRAFFIC THAT CAN BE HANDLED BY THE ROAD. 
OTHER OF SUCH IMPROVEMENTS HAVE CONTRIBUTED TO EFFICIENCY AND ECONOMY
IN OPERATIONS.  THESE IMPROVEMENTS HAVE ENABLED THE DEBTOR TO HANDLE
THE GREAT INCREASE IN TRAFFIC RESULTING FROM THE WAR EFFORT AND HAVE
PLACED THE DEBTOR IN A POSITION TO MORE ECONOMICALLY AND EFFICIENTLY
HANDLE A VOLUME OF TRAFFIC LARGELY IN EXCESS OF ITS PREWAR TRAFFIC,
SHOULD FUTURE ECONOMIC CONDITIONS PRODUCE SUCH TRAFFIC.  UNDER THE PLAN
APPROVED AND CONFIRMED BY THE DISTRICT COURT, 90 PER CENT OF THE COMMON
STOCK GOES TO THE HOLDERS OF THE SENIOR SECURITIES AND 10 PER CENT TO
THE GENERAL MORTGAGE BONDHOLDERS.  AS A RESULT, SHOULD THERE BE A
SUBSTANTIAL INCREASE IN THE DEBTOR'S POSTWAR TRAFFIC OVER ITS PREWAR
TRAFFIC, 90 PER CENT OF THE INCREASED EARNINGS WILL INURE TO THE
BENEFIT OF THE HOLDERS OF THE SENIOR SECURITIES AND ONLY 10 PER CENT TO
THE GENERAL MORTGAGE BONDHOLDERS, WHOSE CLAIM WAS DECREASED 90 PER CENT
BY REASON OF THE FAILURE TO DISCHARGE INTEREST ACCRUALS WITH INCOME
AVAILABLE THEREFOR AND THE DIVERSION OF SUCH INCOME TO THE COST OF SUCH
PERMANENT IMPROVEMENTS.  IT SEEMS TO ME, UNDER ALL THESE CIRCUMSTANCES,
THAT, IN ADDITION TO THE OTHER ADJUSTMENTS REQUIRED TO MAKE THE PLAN
FAIR AND EQUITABLE, THE COMMISSION SHOULD ENDEAVOR TO MODIFY THE PLAN
SO AS TO GIVE RELIEF FROM THE SITUATION THAT LETS THE FULL IMPACT OF
THE IMPROVEMENT PROGRAM FALL UPON THE CLAIM OF THE GENERAL MORTGAGE
BONDHOLDERS AND ACCORDS THEM NO CORRESPONDING BENEFITS."  150 F.2D 28,
40, 41-43. 

FROM THE CONFUSING FINANCIAL DETAILS ONE STARK FACT EMERGES.  IN 1939
THE COMMISSION FOUND THAT THE DEBTOR WOULD BE ABLE TO EARN ENOUGH IN
THE FUTURE TO PROVIDE AN INCOME ON ONE-THIRD OF THE GENERAL MORTGAGE
BONDS.  233 I.C.C. 515, 592.  IN THE REORGANIZATION PLAN IN 1943 THE
COMMISSION CONCLUDED THAT THE DEBTOR WOULD NOT EARN ENOUGH TO PROVIDE
INCOME ON MORE THAN ONE-TENTH OF THE GENERAL MORTGAGE CLAIMS.  254
I.C.C. 349, 359, 380.  THE CAPITALIZATION PROPOSED BY THE COMMISSION IN
1943 ELIMINATED AS VALUELESS MORE OF THE TOTAL CLAIM OF THE GENERAL
MORTGAGE BONDS AND MORE OF THE FACE AMOUNT OF THESE BONDS THAN DID THE
CAPITALIZATION PROPOSED BY THE COMMISSION IN 1939.  SINCE 1939 THE
DEBTOR ACHIEVED A POSITION PERMITTING IT TO MAKE LARGE DEBT REDUCTIONS
AND TO REDUCE CONSIDERABLY ITS INTEREST CHARGES.  IT ACCUMULATED A VERY
LARGE NET INCOME IN EXCESS OF ITS INTEREST SERVICE, IT EXPENDED LARGE
SUMS TO DECREASE OPERATING COSTS AND IMPROVE ITS BUSINESS PROSPECTS, SO
THAT THE FUTURE EARNING POWER OF THE RAILROAD WAS GREATLY INCREASED. 
IN THE FACE OF ALL THESE FACTORS THE SENIOR SECURITY HOLDERS WERE GIVEN
NOT ONLY SECURITIES FOR THE FULL AMOUNT OF THEIR CLAIM BUT ALSO ALL
CASH ACCUMULATIONS AVAILABLE FOR THE REDUCTION OF THE ROAD'S
INDEBTEDNESS.  IMPROVEMENTS IN THE FINANCIAL AND PHYSICAL STRUCTURE OF
THE ROAD PATENTLY CALCULATED TO INCREASE THE PROFITS OF THE FUTURE
OWNERS OF THIS ROAD HAVE BEEN MADE THE BASIS OF SUBSTANTIALLY WIPING
OUT ONE CLASS OF THE PRESENT OWNERS.  INEQUITABLE CONSEQUENCES SUCH AS
THESE LED THE CIRCUIT COURT OF APPEALS TO CONCLUDE THAT THE PLAN FAILED
TO SATISFY THE COMMAND OF CONGRESS THAT AS A MATTER OF JUDICIAL
JUDGMENT A REORGANIZATION PLAN MUST BE FOUND "FAIR AND EQUITABLE." 

TO DEFEAT THE PLAN IT IS NOT NECESSARY, HOWEVER, TO FIND IT
INTRINSICALLY WANTING IN FAIRNESS AND EQUITY.  CONGRESS DID NOT
AUTHORIZE THE ENFORCEMENT OF A PLAN FOR REORGANIZATION ONCE IT IS
FOUND, AS A MATTER OF JUDICIAL JUDGMENT, TO BE "FAIR AND EQUITABLE." 
CONGRESS WROTE INTO LAW ANOTHER AND A VITAL CONDITION TO THE VALIDITY
OF A RAILROAD REORGANIZATION PLAN.  A PLAN MUST ALSO COMMEND ITSELF AS
"FAIR AND EQUITABLE" TO THE VARIOUS CLASSES OF CREDITORS.  AND IF ANY
CLASS REJECTS IT, THE PLAN CAN PREVAIL ONLY IF THE DISTRICT COURT IS
WARRANTED IN FINDING THAT SUCH REJECTION "IS NOT REASONABLY JUSTIFIED
IN THE LIGHT OF THE RESPECTIVE RIGHTS AND INTERESTS OF THOSE REJECTING
IT AND ALL THE RELEVANT FACTS  ..."  49 STAT. 911, 919(1935), 11 U.S.C.
SEC. 205(E). 

CLAIMANTS WHO ARE THUS ENTITLED TO VOTE ON THEIR INTERESTS AS A CLASS
ARE SURELY NOT EXPECTED TO VOTE AS ALTRUISTS ANY MORE THAN THEY ARE TO
BE ALLOWED TO BEHAVE AS UNREASONABLE OBSTRUCTIONISTS.  IF THAT WHICH
CONGRESS HAS WRITTEN IS NOT TO BE STRICKEN OUT, WE MUST RECOGNIZE THE
REFERENDUM WHICH CONGRESS HAS LODGED IN EACH CLASS OF CREDITORS AS A
MEANS OF SELF-PROTECTION BY EACH CLASS OF CREDITORS AND NOT AS AN
OCCASION FOR EMPTY DIALECTIC.  ON A FAIR AND PRACTICAL CONSTRUCTION OF
THE POWER WHICH CONGRESS HAS SEEN FIT TO PLACE IN THE HANDS OF THE
VARIOUS CREDITOR CLASSES, A CLASS CAN BE DEEMED NOT "REASONABLY
JUSTIFIED" IN EXERCISING THE RIGHT WHICH CONGRESS GAVE THEM TO VOTE
THEIR INTERESTS, ONLY IF A COURT CAN SAY THAT NO INTELLIGENT CLASS OF
CREDITORS, REGARDFUL OF THEIR CLASS INTERESTS, BUT NOT OBVIOUSLY
HOSTILE TO THE COMMON INTEREST WITH WHICH THEIR CLASS INTEREST IS
INVOLVED, COULD HAVE OBJECTED TO THE PLAN.  ANY OTHER CONSTRUCTION
READS "REASONABLY JUSTIFIED" OUT OF THE STATUTE.  IN EFFECT THAT IS
WHAT THE DISTRICT COURT HAS DONE.  AND THIS COURT, WITH ALMOST THE
CANDOR OF SILENCE, APPEARS TO SANCTION SUCH JUDICIAL DELETION OF WHAT
CONGRESS HAS WRITTEN.  FOR IT DOES NOT FIND THAT THE GENERAL
BONDHOLDERS WERE NOT REASONABLY JUSTIFIED FROM THEIR INTRINSIC POINT OF
VIEW TO EXERCISE THEIR RIGHT TO REJECT THE PLAN.  IT DOES LITTLE MORE
THAN ASSERT THIS CONCLUSION, APPARENTLY ON THE FINDING THAT THE PLAN
WAS IN FACT "FAIR AND EQUITABLE."  IT IMPOSES ITS JUDGMENT THAT THE
PLAN WAS "FAIR AND EQUITABLE" UPON THE GENERAL BONDHOLDERS AND THUS IN
EFFECT DEPRIVES THEM OF THE VERY RIGHT WHICH CONGRESS GAVE THEM TO BE
JUDGES OF THEIR OWN INTERESTS SO LONG AS THE COURT CANNOT SAY THEY WERE
CAPRICIOUS OR GREEDY IN THEIR JUDGMENT.  THIS COURT SEEMS TO BE OF THE
VIEW THAT IF IN ITS JUDGMENT A PLAN IS "FAIR AND EQUITABLE," IT MUST
APPEAR EQUALLY FAIR AND EQUITABLE TO EVERY CLASS OF CREDITORS.  HERE
THREE CIRCUIT JUDGES FOUND THE PLAN NOT "FAIR AND EQUITABLE," YET THIS
COURT HOLDS THAT THE GENERAL BONDHOLDERS WERE NOT "REASONABLY
JUSTIFIED" IN NOT FINDING IT "FAIR AND EQUITABLE."  THIS CAN ONLY MEAN
THAT THE COURT DEEMS REDUNDANT, AND THEREFORE ELIMINATES, THE
CONGRESSIONAL REQUIREMENT THAT BEFORE A PLAN CAN BE APPROVED, IT MUST
COMMEND ITSELF TO THE JUDGMENT OF A CLASS OF CREDITORS EXERCISING THE
KIND OF JUDGMENT THAT MEN ARE ENTITLED TO EXERCISE IN THE PURSUIT OF
THEIR LEGITIMATE SELF-INTEREST, AS WELL AS COMMEND ITSELF TO THE
JUDICIAL SENSE OF FAIRNESS.    IN ASSUMING THAT IF A PLAN SEEMS FAIR
AND EQUITABLE TO A COURT, REJECTION OF IT BY ANY CLASS MUST BE
UNREASONABLE, THE COURT NOT ONLY DISREGARDS THE CONTRARY ASSUMPTION ON
THE BASIS OF WHICH CONGRESS LEGISLATED.  SUCH AN ATTITUDE IS ALSO
OBLIVIOUS OF THE PRACTICALITIES OF THE SITUATION.  TO ASSUME THAT IF A
COURT FINDS A PLAN IS "FAIR AND EQUITABLE" NO CLASS OF CREDITORS CAN BE
REASONABLY JUSTIFIED IN REJECTING IT, IS TO ASSUME THAT THE
ASCERTAINMENT OF FAIRNESS CONCERNING SO COMPLICATED A SITUATION AS A
PLAN FOR A RAILROAD'S REORGANIZATION LIES IN THE REALM OF EVEN
APPROXIMATE CERTITUDE.  QUITE THE OPPOSITE IS TRUE.  A COURT IN
ASCERTAINING WHETHER A PLAN IS FAIR AND EQUITABLE IS NOT ENGAGED IN
ASCERTAINING INDISPUTABLE FACTS.  IT IS FORMING A JUDGMENT, AND LARGELY
A PROPHETIC JUDGMENT, REGARDING A MAZE OF FACTORS, AND AS TO EACH
FACTOR THERE IS USUALLY ROOM FOR CONSIDERABLE DIFFERENCE OF OPINION. 
IT IS FOR THIS REASON THAT CONGRESS MADE IT A CONDITION FOR JUDICIAL
APPROVAL OF THE PLAN THAT IT APPEAR FAIR AND EQUITABLE IN THE VOTING
SYSTEM BY THE CLASSES OF CREDITORS. 

FOR AN ADDITION IT WAS, MADE BY CONGRESS TO THE RECOMMENDATION OF THE
LEGISLATION BY COMMISSIONER JOSEPH B. EASTMAN.  AS FEDERAL COORDINATOR,
HE PROPOSED TO CONGRESS THAT A COURT BE AUTHORIZED TO CONFIRM THE
REORGANIZATION PLAN DESPITE THE FAILURE TO OBTAIN A MAJORITY VOTE OF
ONE OR MORE OF THE AFFECTED CLASSES OF CREDITORS, PROVIDED THAT THE
DISTRICT COURT WAS SATISFIED IN TWO RESPECTS:  (1) THAT THE PLAN "MAKES
ADEQUATE PROVISION FOR FAIR AND EQUITABLE TREATMENT FOR THE INTERESTS
OR CLAIMS OF THOSE REJECTING IT"; AND (2) THAT THE JUDGE WAS SATISFIED
THAT THE PLAN IS "FAIR AND EQUITABLE" "EVEN IF NOT SO APPROVED" BY A
CLASS OF CREDITORS.  SEE COORDINATOR'S ANNUAL REPORT FOR 1934, PP. 101
102, 237, 238. 

BUT CONGRESS DEEMED IT IN THE PUBLIC INTEREST TO GIVE GREATER
PROTECTION TO THE VARIOUS CLASSES OF CREDITORS THAN THE COORDINATOR
SUGGESTED.  IN SEVERAL RESPECTS CONGRESS LIMITED THE POWER OF COURTS TO
DISREGARD A CLASS VOTE AGAINST A PLAN BEYOND THE SAFEGUARDS PROPOSED BY
THE COORDINATOR.  FOR PRESENT PURPOSES IT IS DECISIVE TO NOTE THAT
CONGRESS ADDED TO THE PROTECTION FORMULATED BY THE COORDINATOR BY
REQUIRING THAT A JUDGE, AFTER FINDING THAT A PLAN IS "FAIR AND
EQUITABLE," MUST ALSO BE SATISFIED AND FIND THAT "SUCH REJECTION IS NOT
REASONABLY JUSTIFIED IN THE LIGHT OF THE RESPECTIVE RIGHTS AND
INTERESTS OF THOSE REJECTING IT AND ALL THE RELEVANT FACTS ..."  I
CANNOT ESCAPE THE CONCLUSION THAT TO HOLD, IN THE CIRCUMSTANCES OF THIS
CASE, THAT THE GENERAL BONDHOLDERS WERE NOT REASONABLY JUSTIFIED IN
REJECTING THE PLAN IS TO DECIDE THAT THIS REQUIREMENT, PURPOSEFULLY
WRITTEN INTO THE LAW BY CONGRESS AS AN ADDITION TO THE REQUIREMENT THAT
THE JUDGE MUST FIND THE PLAN TO BE "FAIR AND EQUITABLE," IS BUT A
MEANINGLESS REPETITION OF THAT REQUIREMENT. 

THE UNDESIRABILITY OF FURTHER DELAY IN TAKING THIS ROAD OUT OF THE
DISTRICT COURT, WHERE IT HAS BEEN FOR MORE THAN A DECADE, IS BOUND TO
PRESS UPON ANY COURT.  BUT IT OUGHT NOT LEAD TO CONFIRMATION OF A PLAN
WHICH FAILS TO SATISFY THE EXPLICIT PREREQUISITES FOR APPROVAL LAID
DOWN BY CONGRESS, PARTICULARLY SO WHERE THE RESULT IS AS DRASTIC AS THE
CIRCUIT COURT OF APPEALS AND THE EXPERT SENATE COMMITTEE ON INTERSTATE
COMMERCE HAVE MADE MANIFEST.  SEE S. REP. 1170, 79TH CONG., 2D SESS.,
PP. 17-18, 40, 42, 67-68, 72-73, 91-95, 105-109, 121-123. 

CONGRESS HAS NOT CURTAILED, NOR SHOWN ANY DESIRE TO RESTRICT, THE
RIGHT OF SELF-PROTECTION WHICH IT GAVE TO RAILROAD CREDITORS BY THE ACT
OF 1935 AND TO WHICH THE RESULT OF THIS CASE APPEARS INDIFFERENT.  ON
THE CONTRARY, CONGRESS HAS SINCE GIVEN DECISIVE PROOF THAT IT
DISAPPROVED THE CONSTRUCTION WHICH COURTS HAVE HERETOFORE GIVEN TO SEC.
77, RESULTING IN UNDUE HARSHNESS TO JUNIOR INTERESTS AND PROMOTING
CONCENTRATION OF RAILROAD CONTROL.  IT HAS EMPHATICALLY INDICATED THAT
THE RIGHTS OF JUNIOR INTERESTS, REFLECTING PUBLIC INTERESTS, SHOULD BE
MORE CAREFULLY SAFEGUARDED.  WHETHER CONGRESS HAS BEEN WISE OR UNWISE
IN MANIFESTING THIS VIEW IS NOT OUR BUSINESS TO DECIDE.  BUT IT IS THE
BUSINESS OF THIS COURT TO RESPECT WHAT I FIND TO BE A CLEAR ENUNCIATION
BY CONGRESS OF THE CONDITIONS WHICH ALONE AUTHORIZE COURTS TO SANCTION
A RAILROAD REORGANIZATION. 

FN7  "PROPERTIES INCLUDED IN THIS RAILROAD SYSTEM HAVE PARTICIPATED
IN THE FOLLOWING REORGANIZATIONS:  THE DENVER & RIO GRANDE R. CO. WAS A
SUCCESSOR IN A REORGANIZATION PROCEEDING IN 1886; THE RIO GRANDE &
WESTERN R. CO. WAS THE SUCCESSOR IN A REORGANIZATION PROCEEDING IN
1889; THESE TWO COMPANIES CONSOLIDATED IN 1908 UNDER THE NAME OF THE
DENVER & RIO GRANDE R. CO.; THE PRESENT COMPANY WAS REORGANIZED IN 1920
AND AGAIN IN 1922 TO 1924." 
..END :









COLEGROVE V. GREEN, 328 U.S. 549 


NO. 804.  ARGUED MARCH 7, 8, 1946.  - DECIDED JUNE 10, 1946.  - 64
F.SUPP.  632, AFFIRMED. 


THREE PERSONS WHO WERE QUALIFIED TO VOTE IN CONGRESSIONAL DISTRICTS OF
ILLINOIS WHICH HAVE MUCH LARGER POPULATIONS THAN OTHER CONGRESSIONAL
DISTRICTS OF THAT STATE, BROUGHT SUIT IN A FEDERAL DISTRICT COURT IN
ILLINOIS, UNDER THE DECLARATORY JUDGMENT ACT, TO RESTRAIN OFFICERS OF
THE STATE FROM ARRANGING FOR AN ELECTION, IN WHICH MEMBERS OF CONGRESS
WERE TO BE CHOSEN, PURSUANT TO PROVISIONS OF AN ILLINOIS LAW OF 1901
GOVERNING CONGRESSIONAL DISTRICTS.  THE COMPLAINT ALLEGED THAT, BY
REASON OF LATER CHANGES IN POPULATION, THE CONGRESSIONAL DISTRICTS
CREATED BY THE ILLINOIS LAW LACKED COMPACTNESS OF TERRITORY AND
APPROXIMATE EQUALITY OF POPULATION; AND PRAYED A DECREE, WITH
INCIDENTAL RELIEF, DECLARING THE PROVISIONS OF THE STATE LAW INVALID AS
IN VIOLATION OF VARIOUS PROVISIONS OF THE FEDERAL CONSTITUTION AND IN
CONFLICT WITH THE REAPPORTIONMENT ACT OF 1911, AS AMENDED.  THE
DISTRICT COURT DISMISSED THE COMPLAINT.  HELD, DISMISSAL OF THE
COMPLAINT IS AFFIRMED.  PP. 550-551, 556. 

COLEGROVE ET AL. V. GREEN ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, 64 F.SUPP. 
632, WHICH DISMISSED THE COMPLAINT IN A SUIT TO RESTRAIN STATE OFFICERS
FROM ACTING PURSUANT TO PROVISIONS OF A STATE ELECTION LAW ALLEGED TO
BE INVALID UNDER THE FEDERAL CONSTITUTION.  AFFIRMED, P. 556. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND AN
OPINION IN WHICH MR. JUSTICE REED AND MR. JUSTICE BURTON CONCUR. 

THIS CASE IS APPROPRIATELY HERE, UNDER SEC. 266 OF THE JUDICIAL CODE,
28 U.S.C. SEC. 380, ON DIRECT REVIEW OF A JUDGMENT OF THE DISTRICT
COURT OF THE NORTHERN DISTRICT OF ILLINOIS, COMPOSED OF THREE JUDGES,
DISMISSING THE COMPLAINT OF THE APPELLANTS.  THESE ARE THREE QUALIFIED
VOTERS IN ILLINOIS DISTRICTS WHICH HAVE MUCH LARGER POPULATIONS THAN
OTHER ILLINOIS CONGRESSIONAL DISTRICTS.  THEY BROUGHT THIS SUIT AGAINST
THE GOVERNOR, THE SECRETARY OF STATE, AND THE AUDITOR OF THE STATE OF
ILLINOIS, AS MEMBERS EX OFFICIO OF THE ILLINOIS PRIMARY CERTIFYING
BOARD, TO RESTRAIN THEM, IN EFFECT, FROM TAKING PROCEEDINGS FOR AN
ELECTION IN NOVEMBER 1946, UNDER THE PROVISIONS OF ILLINOIS LAW
GOVERNING CONGRESSIONAL DISTRICTS.  ILLINOIS LAWS OF 1901, P. 3. 
FORMALLY, THE APPELLANTS ASKED FOR A DECREE, WITH ITS INCIDENTAL
RELIEF, SEC. 274(D) JUDICIAL CODE, 28 U.S.C. SEC. 400, DECLARING THESE
PROVISIONS TO BE INVALID BECAUSE THEY VIOLATED VARIOUS PROVISIONS OF
THE UNITED STATES CONSTITUTION AND SEC. 3 OF THE REAPPORTIONMENT ACT OF
AUGUST 8, 1911, 37 STAT. 13, AS AMENDED, 2 U.S.C. SEC. 2A, IN THAT BY
REASON OF SUBSEQUENT CHANGES IN POPULATION THE CONGRESSIONAL DISTRICTS
FOR THE ELECTION OF REPRESENTATIVES IN THE CONGRESS CREATED BY THE
ILLINOIS LAWS OF 1901(ILL.  REV.  STAT. CH. 46(1945) SECS. 154-56)
LACKED COMPACTNESS OF TERRITORY AND APPROXIMATE EQUALITY OF
POPULATION.  THE DISTRICT COURT, FEELING BOUND BY THIS COURT'S OPINION
IN WOOD V. BROOM, 287 U.S. 1, DISMISSED THE COMPLAINT.  64 F.SUPP. 
632. 

THE DISTRICT COURT WAS CLEARLY RIGHT IN DEEMING ITSELF BOUND BY WOOD
V. BROOM, SUPRA, AND WE COULD ALSO DISPOSE OF THIS CASE ON THE
AUTHORITY OF WOOD V. BROOM.  THE LEGAL MERITS OF THIS CONTROVERSY WERE
SETTLED IN THAT CASE, INASMUCH AS IT HELD THAT THE REAPPORTIONMENT ACT
OF JUNE 18, 1929, 46 STAT. 21, AS AMENDED, 2 U.S.C. SEC. 2(A), HAS NO
REQUIREMENTS "AS TO THE COMPACTNESS, CONTIGUITY AND EQUALITY IN
POPULATION OF DISTRICTS."  287 U.S. AT 8.  THE ACT OF 1929 STILL
GOVERNS THE DISTRICTING FOR THE ELECTION OF REPRESENTATIVES.  IT MUST
BE REMEMBERED THAT NOT ONLY WAS THE LEGISLATIVE HISTORY OF THE MATTER
FULLY CONSIDERED IN WOOD V. BROOM, BUT THE QUESTION HAD BEEN
ELABORATELY BEFORE THE COURT IN SMILEY V. HOLM, 285 U.S. 355, KOENIG V.
FLYNN, 285 U.S. 375, AND CARROLL V. BECKER, 285 U.S. 380, ARGUED A FEW
MONTHS BEFORE WOOD V. BROOM WAS DECIDED.  NOTHING HAS NOW BEEN ADDUCED
TO LEAD US TO OVERRULE WHAT THIS COURT FOUND TO BE THE REQUIREMENTS
UNDER THE ACT OF 1929, THE MORE SO SINCE SEVEN CONGRESSIONAL ELECTIONS
HAVE BEEN HELD UNDER THE ACT OF 1929 AS CONSTRUED BY THIS COURT.  NO
MANIFESTATION HAS BEEN SHOWN BY CONGRESS EVEN TO QUESTION THE
CORRECTNESS OF THAT WHICH SEEMED COMPELLING TO THIS COURT IN ENFORCING
THE WILL OF CONGRESS IN WOOD V. BROOM. 

BUT WE ALSO AGREE WITH THE FOUR JUSTICES (BRANDEIS, STONE, ROBERTS,
AND CARDOZO, JJ.)  WHO WERE OF OPINION THAT THE BILL IN WOOD V. BROOM,
SUPRA, SHOULD BE "DISMISSED FOR WANT OF EQUITY."  TO BE SURE, THE
PRESENT COMPLAINT, UNLIKE THE BILL IN WOOD V. BROOM, WAS BROUGHT UNDER
THE FEDERAL DECLARATORY JUDGMENT ACT WHICH, NOT HAVING BEEN ENACTED
UNTIL 1934, WAS NOT AVAILABLE AT THE TIME OF WOOD V. BROOM.  BUT THAT
ACT MERELY GAVE THE FEDERAL COURTS COMPETENCE TO MAKE A DECLARATION OF
RIGHTS EVEN THOUGH NO DECREE OF ENFORCEMENT BE IMMEDIATELY ASKED.  IT
MERELY PERMITTED A FREER MOVEMENT OF THE FEDERAL COURTS WITHIN THE
RECOGNIZED CONFINES OF THE SCOPE OF EQUITY.  THE DECLARATORY JUDGMENT
ACT "ONLY PROVIDED A NEW FORM OF PROCEDURE FOR THE ADJUDICATION OF
RIGHTS IN CONFORMITY" WITH "ESTABLISHED EQUITABLE PRINCIPLES."  GREAT
LAKES CO. V. HUFFMAN, 319 U.S. 293, 300.  AND SO, THE TEST FOR
DETERMINING WHETHER A FEDERAL COURT HAS AUTHORITY TO MAKE A DECLARATION
SUCH AS IS HERE ASKED, IS WHETHER THE CONTROVERSY "WOULD BE JUSTICIABLE
IN THIS COURT IF PRESENTED IN A SUIT FOR INJUNCTION  ..."  NASHVILLE,
C. & ST. L.R. CO. V. WALLACE, 288 U.S. 249, 262. 

WE ARE OF OPINION THAT THE APPELLANTS ASK OF THIS COURT WHAT IS
BEYOND ITS COMPETENCE TO GRANT.  THIS IS ONE OF THOSE DEMANDS ON
JUDICIAL POWER WHICH CANNOT BE MET BY VERBAL FENCING ABOUT
"JURISDICTION."  IT MUST BE RESOLVED BY CONSIDERATIONS ON THE BASIS OF
WHICH THIS COURT, FROM TIME TO TIME, HAS REFUSED TO INTERVENE IN
CONTROVERSIES.  IT HAS REFUSED TO DO SO BECAUSE DUE REGARD FOR THE
EFFECTIVE WORKING OF OUR GOVERNMENT REVEALED THIS ISSUE TO BE OF A
PECULIARLY POLITICAL NATURE AND THEREFORE NOT MEET FOR JUDICIAL
DETERMINATION. 

THIS IS NOT AN ACTION TO RECOVER FOR DAMAGE BECAUSE OF THE
DISCRIMINATORY EXCLUSION OF A PLAINTIFF FROM RIGHTS ENJOYED BY OTHER
CITIZENS.  THE BASIS FOR THE SUIT IS NOT A PRIVATE WRONG, BUT A WRONG
SUFFERED BY ILLINOIS AS A POLITY.  COMPARE NIXON V. HERNDON, 273 U.S.
536 AND LANE V. WILSON, 307 U.S. 268, WITH GILES V. HARRIS, 189 U.S.
475.  IN EFFECT THIS IS AN APPEAL TO THE FEDERAL COURTS TO RECONSTRUCT
THE ELECTORAL PROCESS OF ILLINOIS IN ORDER THAT IT MAY BE ADEQUATELY
REPRESENTED IN THE COUNCILS OF THE NATION.  BECAUSE THE ILLINOIS
LEGISLATURE HAS FAILED TO REVISE ITS CONGRESSIONAL REPRESENTATIVE
DISTRICTS IN ORDER TO REFLECT GREAT CHANGES, DURING MORE THAN A
GENERATION, IN THE DISTRIBUTION OF ITS POPULATION, WE ARE ASKED TO DO
THIS, AS IT WERE, FOR ILLINOIS. 

OF COURSE NO COURT CAN AFFIRMATIVELY RE-MAP THE ILLINOIS DISTRICTS SO
AS TO BRING THEM MORE IN CONFORMITY WITH THE STANDARDS OF FAIRNESS FOR
A REPRESENTATIVE SYSTEM.  AT BEST WE COULD ONLY DECLARE THE EXISTING
ELECTORAL SYSTEM INVALID.  THE RESULT WOULD BE TO LEAVE ILLINOIS
UNDISTRICTED AND TO BRING INTO OPERATION, IF THE ILLINOIS LEGISLATURE
CHOSE NOT TO ACT, THE CHOICE OF MEMBERS FOR THE HOUSE OF
REPRESENTATIVES ON A STATE-WIDE TICKET.  THE LAST STAGE MAY BE WORSE
THAN THE FIRST.  THE UPSHOT OF JUDICIAL ACTION MAY DEFEAT THE VITAL
POLITICAL PRINCIPLE WHICH LED CONGRESS, MORE THAN A HUNDRED YEARS AGO,
TO REQUIRE DISTRICTING.  THIS REQUIREMENT, IN THE LANGUAGE OF
CHANCELLOR KENT, "WAS RECOMMENDED BY THE WISDOM AND JUSTICE OF GIVING,
AS FAR AS POSSIBLE, TO THE LOCAL SUBDIVISIONS OF THE PEOPLE OF EACH
STATE, A DUE INFLUENCE IN THE CHOICE OF REPRESENTATIVES, SO AS NOT TO
LEAVE THE AGGREGATE MINORITY OF THE PEOPLE IN A STATE, THOUGH
APPROACHING PERHAPS TO A MAJORITY, TO BE WHOLLY OVERPOWERED BY THE
COMBINED ACTION OF THE NUMERICAL MAJORITY, WITHOUT ANY VOICE WHATEVER
IN THE NATIONAL COUNCILS."  1 KENT, COMMENTARIES (12TH ED., 1873)*  230
31, N. (C).  ASSUMING ACQUIESCENCE ON THE PART OF THE AUTHORITIES OF
ILLINOIS IN THE SELECTION OF ITS REPRESENTATIVES BY A MODE THAT DEFIES
THE DIRECTION OF CONGRESS FOR SELECTION BY DISTRICTS, THE HOUSE OF
REPRESENTATIVES MAY NOT ACQUIESCE.  IN THE EXERCISE OF ITS POWER TO
JUDGE THE QUALIFICATIONS OF ITS OWN MEMBERS, THE HOUSE MAY REJECT A
DELEGATION OF REPRESENTATIVES-AT-LARGE.  ARTICLE I, SEC. 5, CL. 1.  FOR
THE DETAILED SYSTEM BY WHICH CONGRESS SUPERVISES THE ELECTION OF ITS
MEMBERS, SEE E.G., 2 U.S.C. SECS. 201-226; BARTLETT, CONTESTED
ELECTIONS IN THE HOUSE OF REPRESENTATIVES (2 VOLS.); ALEXANDER, HISTORY
AND PROCEDURE OF THE HOUSE OF REPRESENTATIVES (1916) C. XVI.  NOTHING
IS CLEARER THAN THAT THIS CONTROVERSY CONCERNS MATTERS THAT BRING
COURTS INTO IMMEDIATE AND ACTIVE RELATIONS WITH PARTY CONTESTS.  FROM
THE DETERMINATION OF SUCH ISSUES THIS COURT HAS TRADITIONALLY HELD
ALOOF.  IT IS HOSTILE TO A DEMOCRATIC SYSTEM TO INVOLVE THE JUDICIARY
IN THE POLITICS OF THE PEOPLE.  AND IT IS NOT LESS PERNICIOUS IF SUCH
JUDICIAL INTERVENTION IN AN ESSENTIALLY POLITICAL CONTEST BE DRESSED UP
IN THE ABSTRACT PHRASES OF THE LAW. 

THE APPELLANTS URGE WITH GREAT ZEAL THAT THE CONDITIONS OF WHICH THEY
COMPLAIN ARE GRAVE EVILS AND OFFEND PUBLIC MORALITY.  THE CONSTITUTION
OF THE UNITED STATES GIVES AMPLE POWER TO PROVIDE AGAINST THESE EVILS. 
BUT DUE REGARD FOR THE CONSTITUTION AS A VIABLE SYSTEM PRECLUDES
JUDICIAL CORRECTION.  AUTHORITY FOR DEALING WITH SUCH PROBLEMS RESIDES
ELSEWHERE.  ARTICLE I, SEC. 4 OF THE CONSTITUTION PROVIDES THAT "THE
TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR  ... REPRESENTATIVES,
SHALL BE PRESCRIBED IN EACH STATE BY THE LEGISLATURE THEREOF; BUT THE
CONGRESS MAY AT ANY TIME BY LAW MAKE OR ALTER SUCH REGULATIONS,  ..." 
THE SHORT OF IT IS THAT THE CONSTITUTION HAS CONFERRED UPON CONGRESS
EXCLUSIVE AUTHORITY TO SECURE FAIR REPRESENTATION BY THE STATES IN THE
POPULAR HOUSE AND LEFT TO THAT HOUSE DETERMINATION WHETHER STATES HAVE
FULFILLED THEIR RESPONSIBILITY.  IF CONGRESS FAILED IN EXERCISING ITS
POWERS, WHEREBY STANDARDS OF FAIRNESS ARE OFFENDED, THE REMEDY
ULTIMATELY LIES WITH THE PEOPLE.  WHETHER CONGRESS FAITHFULLY
DISCHARGES ITS DUTY OR NOT, THE SUBJECT HAS BEEN COMMITTED TO THE
EXCLUSIVE CONTROL OF CONGRESS.  AN ASPECT OF GOVERNMENT FROM WHICH THE
JUDICIARY, IN VIEW OF WHAT IS INVOLVED, HAS BEEN EXCLUDED BY THE CLEAR
INTENTION OF THE CONSTITUTION CANNOT BE ENTERED BY THE FEDERAL COURTS
BECAUSE CONGRESS MAY HAVE BEEN IN DEFAULT IN EXACTING FROM STATES
OBEDIENCE TO ITS MANDATE. 

THE ONE STARK FACT THAT EMERGES FROM A STUDY OF THE HISTORY OF
CONGRESSIONAL APPORTIONMENT IS ITS EMBROILMENT IN POLITICS, IN THE
SENSE OF PARTY CONTESTS AND PARTY INTERESTS.  THE CONSTITUTION ENJOINS
UPON CONGRESS THE DUTY OF APPORTIONING REPRESENTATIVES "AMONG THE
SEVERAL STATES  ... ACCORDING TO THEIR RESPECTIVE NUMBERS,  ..." 
ARTICLE I, SEC. 2.  YET, CONGRESS HAS AT TIMES BEEN HEEDLESS OF THIS
COMMAND AND NOT APPORTIONED ACCORDING TO THE REQUIREMENTS OF THE
CENSUS.  IT NEVER OCCURRED TO ANYONE THAT THIS COURT COULD ISSUE
MANDAMUS TO COMPEL CONGRESS TO PERFORM ITS MANDATORY DUTY TO
APPORTION.  "WHAT MIGHT NOT BE DONE DIRECTLY BY MANDAMUS, COULD NOT BE
ATTAINED INDIRECTLY BY INJUNCTION."  CHAFEE, CONGRESSIONAL
REAPPORTIONMENT (1929) 42 HARV. L. REV. 1015, 1019.  UNTIL 1842 THERE
WAS THE GREATEST DIVERSITY AMONG THE STATES IN THE MANNER OF CHOOSING
REPRESENTATIVES BECAUSE CONGRESS HAD MADE NO REQUIREMENT FOR
DISTRICTING.  5 STAT. 491.  CONGRESS THEN PROVIDED FOR THE ELECTION OF
REPRESENTATIVES BY DISTRICTS.  STRANGELY ENOUGH, THE POWER TO DO SO WAS
SERIOUSLY QUESTIONED; IT WAS STILL DOUBTED BY A COMMITTEE OF CONGRESS
AS LATE AS 1901.  SEE E.G., SPEECH OF MR. (AFTERWARDS MR. JUSTICE)
CLIFFORD, CONG. GLOBE, APRIL 28, 1842, 27TH CONG., 2D SESS., APP., P.
347; 1 BARTLETT, CONTESTED ELECTIONS IN THE HOUSE OF REPRESENTATIVES
(1865) 47, 276; H.R. REP. NO. 3000, 56TH CONG., 2D SESS. (1901); H.R.
DOC. NO. 2052, 64TH CONG., 2D SESS. (1917) 43; UNITED STATES V.
GRADWELL, 243 U.S. 476, 482, 483.  IN 1850 CONGRESS DROPPED THE
REQUIREMENT.  9 STAT. 428, 432-33.  THE REAPPORTIONMENT ACT OF 1862
REQUIRED THAT THE DISTRICTS BE OF CONTIGUOUS TERRITORY.  12 STAT. 572. 
IN 1872 CONGRESS ADDED THE REQUIREMENT OF SUBSTANTIAL EQUALITY OF
INHABITANTS.  17 STAT. 28.  THIS WAS REINFORCED IN 1911.  37 STAT. 13,
14.  BUT THE 1929 ACT, AS WE HAVE SEEN, DROPPED THESE REQUIREMENTS.  46
STAT. 21.  THROUGHOUT OUR HISTORY, WHATEVER MAY HAVE BEEN THE
CONTROLLING APPORTIONMENT ACT, THE MOST GLARING DISPARITIES HAVE
PREVAILED AS TO THE CONTROURS AND THE POPULATION OF DISTRICTS. 
APPENDIX I SUMMARIZES RECENT DISPARITIES IN THE VARIOUS CONGRESSIONAL
REPRESENTATIVE DISTRICTS THROUGHOUT THE COUNTRY AND APPENDIX II GIVES
FAIR SAMPLES OF PREVAILING GERRYMANDERS.  FOR OTHER ILLUSTRATIONS OF
GLARING INEQUALITIES, SEE 71 CONG. REC. 2278-79, 2480 ET SEQ.; 86 CONG.
REC. 4369, 4370-71, 76TH CONG., 2D SESS. (1940); H.R. REP. NO. 1695,
61ST CONG., 2D SESS. (1910); (1920) 24 LAW NOTES 124; (OCTOBER 30,
1902) 75 THE NATION 343; AND SEE, GENERALLY, SCHMECKEBIER,
CONGRESSIONAL APPORTIONMENT (1941); AND ON GERRYMANDERING, SEE
GRIFFITH, THE RISE AND DEVELOPMENT OF THE GERRYMANDER (1907). 

TO SUSTAIN THIS ACTION WOULD CUT VERY DEEP INTO THE VERY BEING OF
CONGRESS.  COURTS OUGHT NOT TO ENTER THIS POLITICAL THICKET.  THE
REMEDY FOR UNFAIRNESS IN DISTRICTING IS TO SECURE STATE LEGISLATURES
THAT WILL APPORTION PROPERLY, OR TO INVOKE THE AMPLE POWERS OF
CONGRESS.  THE CONSTITUTION HAS MANY COMMANDS THAT ARE NOT ENFORCEABLE
BY COURTS BECAUSE THEY CLEARLY FALL OUTSIDE THE CONDITIONS AND PURPOSES
THAT CIRCUMSCRIBE JUDICIAL ACTION.  THUS, "ON DEMAND OF THE EXECUTIVE
AUTHORITY," ART. IV, SEC. 2, OF A STATE IT IS THE DUTY OF A SISTER
STATE TO DELIVER UP A FUGITIVE FROM JUSTICE.  BUT THE FULFILMENT OF
THIS DUTY CANNOT BE JUDICIALLY ENFORCED.  KENTUCKY V. DENNISON, 24
HOW.  66.  THE DUTY TO SEE TO IT THAT THE LAWS ARE FAITHFULLY EXECUTED
CANNOT BE BROUGHT UNDER LEGAL COMPULSION, MISSISSIPPI V. JOHNSON, 4
WALL.  475.  VIOLATION OF THE GREAT GUARANTY OF A REPUBLICAN FORM OF
GOVERNMENT IN STATES CANNOT BE CHALLENGED IN THE COURTS.  PACIFIC
TELEPHONE CO. V. OREGON, 223 U.S. 118.  THE CONSTITUTION HAS LEFT THE
PERFORMANCE OF MANY DUTIES IN OUR GOVERNMENTAL SCHEME TO DEPEND ON THE
FIDELITY OF THE EXECUTIVE AND LEGISLATIVE ACTION AND, ULTIMATELY, ON
THE VIGILANCE OF THE PEOPLE IN EXERCISING THEIR POLITICAL RIGHTS. 
DISMISSAL OF THE COMPLAINT IS AFFIRMED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

FOR OPINIONS OF RUTLEDGE AND BLACK, JJ., SEE POST, PAGES 564, 566. 

                             APPENDIX I.

      DISPARITIES IN APPORTIONMENT SHOWING DISTRICTS      IN EACH
STATE HAVING LARGEST AND SMALLEST POPULATIONS. 

STATE           1946               1928*               1897*

            DIST. POPULATION    DIST. POPULATION    DIST.
POPULATION 

ALA--------      9TH   459,930       9TH   310,054        2D
188,214

               6TH   251,757  6TH   170,188       7TH   130,451 

ARIZ-------  2 REPRESENTATIVES    1 REPRESENTATIVE    NOT YET
ADMITTED

          ELECTED AT LARGE. 

ARK--------      1ST   423,152       1ST  330,292       1ST   220,261

                3D   177,476        3D   180,348       4TH
147,806 

CALIF------       3D   409,404      10TH   516,283       5TH
228,717

     21ST   194,199        2D   129,357       4TH   147,642 

COLO-------      1ST   322,412        3D   281,170        2D
207,539

               4TH   172,847       4TH   140,532       1ST
204,659 

CONN-------      1ST   450,189  1ST   336,027        2D   248,582

               5TH   247,601       5TH   224,426        3D
121,792 

DEL--------  1 REPRESENTATIVE    1 REPRESENTATIVE    1
REPRESENTATIVE 

FLA--------      1ST   439,895       4TH   315,292        2D
202,792

               6TH   186,831        2D   187,474     1ST   188,630 

GA---------      5TH   487,552       5TH   308,364        2D
180,300

               9TH   235,420        3D   205,343      11TH
155,948 

IDAHO------ 2D   300,357        2D   253,542    1 REPRESENTATIVE

       1ST   224,516       1ST   178,324 

ILL--------   7TH   914,053       7TH   560,434      13TH   184,027

          5TH   112,116       5TH   158,092       22D   159,186 

IND--------     11TH   460,926       7TH   348,061   7TH   191,472

               9TH   241,323       4TH   179,737       6TH
139,359 

IOWA-------       2D   392,052     11TH   295,449      11TH   203,470

               4TH   268,900       1ST   156,594       1ST
153,712 

KANSAS-----      4TH   382,546        3D   280,045       7TH
278,208

                3D   249,574       4TH   152,378       1ST
167,314 

KY---------      9TH   413,690      11TH   289,766       4TH
192,055

               5TH   225,426       8TH   168,067       7TH
141,461 

LA---------      6TH   333,295       6TH   255,372        3D
214,785

8TH   240,166       7TH   204,909        2D   152,025 

ME---------      1ST   290,335       1ST   195,072       4TH
183,070

                2D   276,695        2D   188,563   1ST   153,778 

MD---------       2D   534,568        2D 311,413        2D   208,165

               1ST   195,427      1ST   194,568       5TH
153,912 

MASS-------     10TH   346,623       8TH   259,954       5TH
174,866

     1ST   278,459      15TH   217,307       6TH   169,418 

MICH-------     17TH   419,007       6TH   533,748        2D
191,841

              12TH   200,265      10TH   198,679       9TH
148,626 

MINN-------      6TH   334,781 5TH   275,645        2D   188,480

               9TH   283,845       9TH   112,235       6TH
184,848 

MISS-------    7TH   470,781        3D   349,662       5TH   224,618

           4TH   201,316       8TH   177,185       1ST   143,315 

MO---------     12TH   503,738      10TH   521,587   14TH   230,478

               9TH   214,787       8TH 138,807       9TH   152,442 

MONT-------       2D   323,597        2D   333,476    1
REPRESENTATIVE

               1ST   235,859       1ST   215,413 

NEB--------      1ST   369,190       6TH   288,090       4TH
195,434

2D   305,961       1ST   173,458        3D   163,674 

NEW--------   1 REPRESENTATIVE    1 REPRESENTATIVE    1
REPRESENTATIVE 

N.H--------       2D   247,033       1ST   224,842  1ST   190,532

               1ST   244,491        2D   218,241        2D
185,998 

N.J--------      1ST   370,220     8TH   290,610       7TH   256,093

                2D  226,169      11TH   228,615       8TH
125,793 

N.M--------  2 REPRESENTATIVES    1 REPRESENTATIVE    NOT YET
ADMITTED

            ELECTED AT LARGE 

N.Y.-------     25TH   365,918       23D   391,620      14TH
227,978

45TH   235,913      12TH   151,605       7TH   114,766 

N.C--------      4TH   358,573       5TH   408,139       6TH
204,686

               1ST   239,040        3D   202,760   3D   160,288 

N.D--------  2 REPRESENTATIVES        2D   220,700    1
REPRESENTATIVE

            ELECTED AT LARGE      3D   210,203 

OHIO-------      22D   698,650      14TH   439,013        2D
205,293

               5TH   163,561      11TH   167,217      12TH
158,026 

OKLA-------      1ST   416,863        3D   325,680    NOT YET
ADMITTED

       7TH   189,547       7TH   189,472 

ORE--------    3D   355,099       1ST   346,989        2D   158,205

           2D   210,991        2D   160,502       1ST   155,562 

PA---------     11TH   441,518      12TH   390,991   4TH   309,986

              14TH   212,979      15TH   136,283        3D
129,764 

RI---------       2D   374,463       3D   210,201       1ST   180,548

               1ST   338,883        2D   193,186        2D
164,958 

S.C--------       2D   361,933       7TH   266,956       4TH
200,000

               5TH   251,137        2D   203,418       5TH
141,750 

S.D--------      1ST   485,829        2D   251,405    1
REPRESENTATIVE

                2D   157,132 3D   138,031 

TENN-------       2D   388,938        3D   296,396        3D
199,972

               5TH   225,918   5TH   145,403       5TH   153,773 

TEX--------      8TH 528,961        2D   349,859       6TH   210,907

 17TH   230,010       7TH   211,032       1ST   102,827 

UTAH-------       2D   293,922       1ST   229,907    1 REPRESENTATIVE

               1ST   256,388        2D   219,489 

VT---------   1 REPRESENTATIVE        2D   176,596       1ST
169,940

                                   1ST   175,832        2D
162,482 

VA---------      9TH   360,679  2D   312,458       9TH   187,467

               4TH   243,165       7TH   167,588        2D
145,536 

WASH-------    1ST   412,689       1ST   348,474   2 REPRESENTATIVES

           4TH   244,908       4TH   200,258    ELECTED AT LARGE 

W. VA------      6TH   378,630       6TH   279,072     3D   202,289

               1ST   281,333       4TH 214,930       1ST   177,840 

WIS--------      5TH   391,467       5TH   276,503       6TH
187,001

              10TH   263,088       6TH   214,206      10TH
149,845 

WYO--------   1 REPRESENTATIVE    1 REPRESENTATIVE    1
REPRESENTATIVE 

*THESE YEARS WERE CHOSEN AT RANDOM. 

         APPENDIX II.

(1)

                                ALABAMA

                 (FORM OMITTED)

   APPENDIX II.

                                  (2)

                              CALIFORNIA

            (FORM OMITTED)

APPENDIX II.

                                  (3)

                           ILLINOIS

      (FORM OMITTED)

                             APPENDIX II.

                                 (4)

                  PENNSYLVANIS

 (FORM OMITTED) 

MR. JUSTICE RUTLEDGE. 

I CONCUR IN THE RESULT.  BUT FOR THE RULING IN SMILEY V. HOLM, 285
U.S. 355, I SHOULD HAVE SUPPOSED THAT THE PROVISIONS OF THE
CONSTITUTION, ART. I, SEC. 4, THAT "THE TIMES, PLACES AND MANNER OF
HOLDING ELECTIONS FOR  ...  REPRESENTATIVES, SHALL BE PRESCRIBED IN
EACH STATE BY THE LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT ANY TIME
BY LAW MAKE OR ALTER SUCH REGULATIONS  ..."; ART. I, SEC. 2, VESTING IN
CONGRESS THE DUTY OF APPORTIONMENT OF REPRESENTATIVES AMONG THE SEVERAL
STATES "ACCORDING TO THEIR RESPECTIVE NUMBERS"; AND ART. I, SEC. 5,
MAKING EACH HOUSE THE SOLE JUDGE OF THE QUALIFICATIONS OF ITS OWN
MEMBERS, WOULD REMOVE THE ISSUES IN THIS CASE FROM JUSTICIABLE
COGNIZANCE.  BUT, IN MY JUDGMENT, THE SMILEY CASE RULES SQUARELY TO THE
CONTRARY, SAVE ONLY IN THE MATTER OF DEGREE. 

MOREOVER, WE HAVE BUT RECENTLY BEEN ADMONISHED AGAIN THAT IT IS THE
VERY ESSENCE OF OUR DUTY TO AVOID DECISION UPON GRAVE CONSTITUTIONAL
QUESTIONS, ESPECIALLY WHEN THIS MAY BRING OUR FUNCTION INTO CLASH WITH
THE POLITICAL DEPARTMENTS OF THE GOVERNMENT, IF ANY TENABLE ALTERNATIVE
GROUND FOR DISPOSITION OF THE CONTROVERSY IS PRESENTED.  FN1 

I WAS UNABLE TO FIND SUCH AN ALTERNATIVE IN THAT INSTANCE.  THERE IS
ONE, HOWEVER, IN THIS CASE.  AND I THINK THE GRAVITY OF THE
CONSTITUTIONAL QUESTIONS RAISED SO GREAT, TOGETHER WITH THE
POSSIBILITIES FOR COLLISION ABOVE MENTIONED, THAT THE ADMONITION IS
APPROPRIATE TO BE FOLLOWED HERE.  OTHER REASONS SUPPORT THIS VIEW,
INCLUDING THE FACT THAT, IN MY OPINION, THE BASIC RULING AND LESS
IMPORTANT ONES IN SMILEY V. HOLM, SUPRA, WOULD OTHERWISE BE BROUGHT
INTO QUESTION. 

ASSUMING THAT THAT DECISION IS TO STAND, I THINK, WITH MR. JUSTICE
BLACK, THAT ITS EFFECT IS TO RULE THAT THIS COURT HAS POWER TO AFFORD
RELIEF IN A CASE OF THIS TYPE AS AGAINST THE OBJECTION THAT THE ISSUES
ARE NOT JUSTICIABLE. 

IN THE LATER CASE OF WOOD V. BROOM, 287 U.S. 1, THE COURT DISPOSED OF
THE CAUSE ON THE GROUND THAT THE 1929 REAPPORTIONMENT ACT, 46 STAT. 21,
DID NOT CARRY FORWARD THE REQUIREMENTS OF THE 1911 ACT, 37 STAT. 13,
AND DECLINED TO DECIDE WHETHER THERE WAS EQUITY IN THE BILL.  287 U.S.
1, 8.  BUT, AS THE COURT'S OPINION NOTES, FOUR JUSTICES THOUGHT THE
BILL SHOULD BE DISMISSED FOR WANT OF EQUITY.  FN2 

IN MY JUDGMENT THIS COMPLAINT SHOULD BE DISMISSED FOR THE SAME
REASON.  ASSUMING THAT THE CONTROVERSY IS JUSTICIABLE, I THINK THE
CAUSE IS OF SO DELICATE A CHARACTER, IN VIEW OF THE CONSIDERATIONS
ABOVE NOTED, THAT THE JURISDICTION SHOULD BE EXERCISED ONLY IN THE MOST
COMPELLING CIRCUMSTANCES. 

AS A MATTER OF LEGISLATIVE ATTENTION, WHETHER BY CONGRESS OR THE
GENERAL ASSEMBLY, THE CASE MADE BY THE COMPLAINT IS STRONG.  BUT THE
RELIEF IT SEEKS PITCHES THIS COURT INTO DELICATE RELATION TO THE
FUNCTIONS OF STATE OFFICIALS AND CONGRESS, COMPELLING THEM TO TAKE
ACTION WHICH HERETOFORE THEY HAVE DECLINED TO TAKE VOLUNTARILY OR TO
ACCEPT THE ALTERNATIVE OF ELECTING REPRESENTATIVES FROM ILLINOIS AT
LARGE IN THE FORTHCOMING ELECTIONS. 

THE SHORTNESS OF THE TIME REMAINING MAKES IT DOUBTFUL WHETHER ACTION
COULD, OR WOULD, BE TAKEN IN TIME TO SECURE FOR PETITIONERS THE
EFFECTIVE RELIEF THEY SEEK.  TO FORCE THEM TO SHARE IN AN ELECTION AT
LARGE MIGHT BRING GREATER EQUALITY OF VOTING RIGHT.  IT WOULD ALSO
DEPRIVE THEM AND ALL OTHER ILLINOIS CITIZENS OF REPRESENTATION BY
DISTRICTS WHICH THE PREVAILING POLICY OF CONGRESS COMMANDS.  46 STAT.
26, AS AMENDED; 2 U.S.C. SEC. 2A. 

IF THE CONSTITUTIONAL PROVISIONS ON WHICH APPELLANTS RELY GIVE THEM
THE SUBSTANTIVE RIGHTS THEY URGE, OTHER PROVISIONS QUALIFY THOSE RIGHTS
IN IMPORTANT WAYS BY VESTING LARGE MEASURES OF CONTROL IN THE POLITICAL
SUBDIVISIONS OF THE GOVERNMENT AND THE STATE.  THERE IS NOT, AND COULD
NOT BE EXCEPT ABSTRACTLY, A RIGHT OF ABSOLUTE EQUALITY IN VOTING.  AT
BEST THERE COULD BE ONLY A ROUGH APPROXIMATION.  AND THERE IS OBVIOUSLY
CONSIDERABLE LATITUDE FOR THE BODIES VESTED WITH THOSE POWERS TO
EXERCISE THEIR JUDGMENT CONCERNING HOW BEST TO ATTAIN THIS, IN FULL
CONSISTENCY WITH THE CONSTITUTION. 

THE RIGHT HERE IS NOT ABSOLUTE.  AND THE CURE SOUGHT MAY BE WORSE
THAN THE DISEASE. 

I THINK, THEREFORE, THE CASE IS ONE IN WHICH THE COURT MAY PROPERLY,
AND SHOULD, DECLINE TO EXERCISE ITS JURISDICTION N3.  ACCORDINGLY, THE
JUDGMENT SHOULD BE AFFIRMED AND I JOIN IN THAT DISPOSITION OF THE
CAUSE. 

FN1  UNITED STATES V. LOVETT, 328 U.S. 303, CONCURRING OPINION AT
320:  "BUT THE MOST FUNDAMENTAL PRINCIPLE OF CONSTITUTIONAL
ADJUDICATION IS NOT TO FACE CONSTITUTIONAL QUESTIONS BUT TO AVOID THEM,
IF AT ALL POSSIBLE.  AND SO THE 'COURT DEVELOPED, FOR ITS OWN
GOVERNANCE IN THE CASES CONFESSEDLY WITHIN ITS JURISDICTION, A SERIES
OF RULES UNDER WHICH IT HAS AVOIDED PASSING UPON A LARGE PART OF ALL
THE CONSTITUTIONAL QUESTIONS PRESSED UPON IT FOR DECISION.'" 

FN2  WANT OF EQUITY JURISDICTION DOES NOT GO TO THE POWER OF A COURT
IN THE SAME MANNER AS WANT OF JURISDICTION OVER THE SUBJECT MATTER. 
THUS, WANT OF EQUITY JURISDICTION MAY BE WAIVED.  MATTHEWS V. RODGERS,
284 U.S. 521, 524-525 AND CASES CITED. 

FN3  "THE POWER OF A COURT OF EQUITY TO ACT IS A DISCRETIONARY
ONE....  WHERE A FEDERAL COURT OF EQUITY IS ASKED TO INTERFERE WITH THE
ENFORCEMENT OF STATE LAWS, IT SHOULD DO SO ONLY 'TO PREVENT IRREPARABLE
INJURY WHICH IS CLEAR AND IMMINENT.'"  AMERICAN FEDERATION OF LABOR V.
WATSON, 327 U.S. 582, 593, AND CASES CITED.    MR. JUSTICE BLACK,
DISSENTING. 

THE COMPLAINT ALLEGES THE FOLLOWING FACTS ESSENTIAL TO THE POSITION I
TAKE:  APPELLANTS, CITIZENS AND VOTERS OF ILLINOIS, LIVE IN
CONGRESSIONAL ELECTION DISTRICTS, THE RESPECTIVE POPULATIONS OF WHICH
RANGE FROM 612,000 TO 914,000.  TWENTY OTHER CONGRESSIONAL ELECTION
DISTRICTS HAVE POPULATIONS THAT RANGE FROM 112,116 TO 385,207.  IN
SEVEN OF THESE DISTRICTS THE POPULATION IS BELOW 200,000.  THE ILLINOIS
LEGISLATURE ESTABLISHED THESE DISTRICTS IN 1901 ON THE BASIS OF THE
CENSUS OF 1900.  THE FEDERAL CENSUS OF 1910, OF 1920, OF 1930, AND OF
1940, EACH SHOWED A GROWTH OF POPULATION IN ILLINOIS AND A SUBSTANTIAL
SHIFT IN THE DISTRIBUTION OF POPULATION AMONG THE DISTRICTS ESTABLISHED
IN 1901.  BUT UP TO DATE, ATTEMPTS TO HAVE THE STATE LEGISLATURE
REAPPORTION CONGRESSIONAL ELECTION DISTRICTS SO AS MORE NEARLY TO
EQUALIZE THEIR POPULATION HAVE BEEN UNSUCCESSFUL.  A CONTRIBUTING CAUSE
OF THIS SITUATION, ACCORDING TO APPELLANTS, IS THE FACT THAT THE STATE
LEGISLATURE IS CHOSEN ON THE BASIS OF STATE ELECTION DISTRICTS
INEQUITABLY APPORTIONED IN A WAY SIMILAR TO THAT OF THE 1901
CONGRESSIONAL ELECTION DISTRICTS.  THE IMPLICATION IS THAT THE ISSUES
OF STATE AND CONGRESSIONAL APPORTIONMENT ARE THUS SO INTERDEPENDENT
THAT IT IS TO THE INTEREST OF STATE LEGISLATORS TO PERPETUATE THE
INEQUITABLE APPORTIONMENT OF BOTH STATE AND CONGRESSIONAL ELECTION
DISTRICTS.  PRIOR TO THIS PROCEEDING A SERIES OF SUITS HAD BEEN BROUGHT
IN THE STATE COURTS CHALLENGING THE STATE'S LOCAL AND FEDERAL
APPORTIONMENT SYSTEM.  IN ALL THESE CASES THE SUPREME COURT OF THE
STATE HAD DENIED EFFECTIVE RELIEF.  FN1 

IN THE PRESENT SUIT THE COMPLAINT ATTACKED THE 1901 STATE
APPORTIONMENT ACT ON THE GROUND THAT IT AMONG OTHER THINGS VIOLATES
ARTICLE I AND THE FOURTEENTH AMENDMENT OF THE CONSTITUTION.  APPELLANTS
CLAIM THAT SINCE THEY LIVE IN THE HEAVILY POPULATED DISTRICTS THEIR
VOTE IS MUCH LESS EFFECTIVE THAN THE VOTE OF THOSE LIVING IN A DISTRICT
WHICH UNDER THE 1901 ACT IS ALSO ALLOWED TO CHOOSE ONE CONGRESSMAN,
THOUGH ITS POPULATION IS SOMETIMES ONLY ONE-NINTH THAT OF THE HEAVILY
POPULATED DISTRICTS.  APPELLANTS CONTEND THAT THIS REDUCTION OF THE
EFFECTIVENESS OF THEIR VOTE IS THE RESULT OF A WILFUL LEGISLATIVE
DISCRIMINATION AGAINST THEM AND THUS AMOUNTS TO A DENIAL OF THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT.  THEY
FURTHER ASSERT THAT THIS REDUCTION OF THE EFFECTIVENESS OF THEIR VOTE
ALSO VIOLATES THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH
AMENDMENT IN ABRIDGING THEIR PRIVILEGE AS CITIZENS OF THE UNITED STATES
TO VOTE FOR CONGRESSMEN, A PRIVILEGE GUARANTEED BY ARTICLE I OF THE
CONSTITUTION.  THEY FURTHER CONTEND THAT THE STATE APPORTIONMENT ACT
DIRECTLY VIOLATES ARTICLE I WHICH GUARANTEES THAT EACH CITIZEN ELIGIBLE
TO VOTE HAS A RIGHT TO VOTE FOR CONGRESSMEN AND TO HAVE HIS VOTE
COUNTED.  THE ASSERTION HERE IS THAT THE RIGHT TO HAVE THEIR VOTE
COUNTED IS ABRIDGED UNLESS THAT VOTE IS GIVEN APPROXIMATELY EQUAL
WEIGHT TO THAT OF OTHER CITIZENS.  IT IS MY JUDGMENT THAT THE DISTRICT
COURT HAD JURISDICTION; FN2  THAT THE COMPLAINT PRESENTED A JUSTICIABLE
CASE AND CONTROVERSY N3; AND THAT APPELLANTS HAD STANDING TO SUE, SINCE
THE FACTS ALLEGED SHOW THAT THEY HAVE BEEN INJURED AS INDIVIDUALS.  FN4
UNLESS PREVIOUS DECISIONS OF THIS COURT ARE TO BE OVERRULED, THE SUIT
IS NOT ONE AGAINST THE STATE BUT AGAINST STATE OFFICIALS AS
INDIVIDUALS.  FN5  THE COMPLAINT ATTACKED THE 1901 APPORTIONMENT ACT AS
UNCONSTITUTIONAL AND ALLEGED FACTS INDICATING THAT THE ACT DENIED
APPELLANTS THE FULL RIGHT TO VOTE AND THE EQUAL PROTECTION OF THE
LAWS.  THESE ALLEGATIONS HAVE NOT BEEN DENIED.  UNDER THESE
CIRCUMSTANCES, AND SINCE THERE IS NO ADEQUATE LEGAL REMEDY FOR
DEPRIVING A CITIZEN OF HIS RIGHT TO VOTE, EQUITY CAN AND SHOULD GRANT
RELIEF. 

IT IS DIFFICULT FOR ME TO SEE WHY THE 1901 STATE APPORTIONMENT ACT
DOES NOT DENY APPELLANTS EQUAL PROTECTION OF THE LAWS.  THE FAILURE OF
THE LEGISLATURE TO REAPPORTION THE CONGRESSIONAL ELECTION DISTRICTS FOR
FORTY YEARS, DESPITE CENSUS FIGURES INDICATING GREAT CHANGES IN THE
DISTRIBUTION OF THE POPULATION, HAS RESULTED IN ELECTION DISTRICTS THE
POPULATIONS OF WHICH RANGE FROM 112,000 TO 900,000.  ONE OF THE
APPELLANTS LIVES IN A DISTRICT OF MORE THAN 900,000 PEOPLE.  HIS VOTE
IS CONSEQUENTLY MUCH LESS EFFECTIVE THAN THAT OF EACH OF THE CITIZENS
LIVING IN THE DISTRICT OF 112,000.  AND SUCH A GROSS INEQUALITY IN THE
VOTING POWER OF CITIZENS IRREFUTABLY DEMONSTRATES A COMPLETE LACK OF
EFFORT TO MAKE AN EQUITABLE APPORTIONMENT.  THE 1901 STATE
APPORTIONMENT ACT IF APPLIED TO THE NEXT ELECTION WOULD THUS RESULT IN
A WHOLLY INDEFENSIBLE DISCRIMINATION AGAINST APPELLANTS AND ALL OTHER
VOTERS IN HEAVILY POPULATED DISTRICTS.  THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT FORBIDS SUCH DISCRIMINATION.  IT DOES NOT
PERMIT THE STATES TO PICK OUT CERTAIN QUALIFIED CITIZENS OR GROUPS OF
CITIZENS AND DENY THEM THE RIGHT TO VOTE AT ALL.  SEE NIXON V. HERNDON,
273 U.S. 536, 541; NIXON V. CONDON, 286 U.S. 73.  NO ONE WOULD DENY
THAT THE EQUAL PROTECTION CLAUSE WOULD ALSO PROHIBIT A LAW THAT WOULD
EXPRESSLY GIVE CERTAIN CITIZENS A HALF-VOTE AND OTHERS A FULL VOTE. 
THE PROBABLE EFFECT OF THE 1901 STATE APPORTIONMENT ACT IN THE COMING
ELECTION WILL BE THAT CERTAIN CITIZENS, AND AMONG THEM THE APPELLANTS,
WILL IN SOME INSTANCES HAVE VOTES ONLY ONE-NINTH AS EFFECTIVE IN
CHOOSING REPRESENTATIVES TO CONGRESS AS THE VOTES OF OTHER CITIZENS. 
SUCH DISCRIMINATORY LEGISLATION SEEMS TO ME EXACTLY THE KIND THAT THE
EQUAL PROTECTION CLAUSE WAS INTENDED TO PROHIBIT. 

THE 1901 STATE APPORTIONMENT ACT IN REDUCING THE EFFECTIVENESS OF
APPELLANTS' VOTES ABRIDGES THEIR PRIVILEGE AS CITIZENS TO VOTE FOR
CONGRESSMEN AND VIOLATES ARTICLE I OF THE CONSTITUTION.  ARTICLE I
PROVIDES THAT CONGRESSMEN "SHALL BE  ...  CHOSEN  ...  BY THE PEOPLE OF
THE SEVERAL STATES  ..."  IT THUS GIVES THOSE QUALIFIED A RIGHT TO VOTE
AND A RIGHT TO HAVE THEIR VOTE COUNTED.  EX PARTE YARBROUGH, 110 U.S.
651; UNITED STATES V. MOSLEY, 238 U.S. 383.  THIS COURT IN ORDER TO
PREVENT "AN INTERFERENCE WITH THE EFFECTIVE CHOICE OF THE VOTERS" HAS
HELD THAT THIS RIGHT EXTENDS TO PRIMARIES.  UNITED STATES V. CLASSIC,
313 U.S. 299, 314.  WHILE THE CONSTITUTION CONTAINS NO EXPRESS
PROVISION REQUIRING THAT CONGRESSIONAL ELECTION DISTRICTS ESTABLISHED
BY THE STATES MUST CONTAIN APPROXIMATELY EQUAL POPULATIONS, THE
CONSTITUTIONALLY GUARANTEED RIGHT TO VOTE AND THE RIGHT TO HAVE ONE'S
VOTE COUNTED CLEARLY IMPLY THE POLICY THAT STATE ELECTION SYSTEMS, NO
MATTER WHAT THEIR FORM, SHOULD BE DESIGNED TO GIVE APPROXIMATELY EQUAL
WEIGHT TO EACH VOTE CAST.  TO SOME EXTENT THIS IMPLICATION OF ARTICLE I
IS EXPRESSLY STATED BY SEC. 2 OF THE FOURTEENTH AMENDMENT WHICH
PROVIDES THAT "REPRESENTATIVES SHALL BE APPORTIONED AMONG THE SEVERAL
STATES ACCORDING TO THEIR RESPECTIVE NUMBERS  ..."  THE PURPOSE OF THIS
REQUIREMENT IS OBVIOUS:  IT IS TO MAKE THE VOTES OF THE CITIZENS OF THE
SEVERAL STATES EQUALLY EFFECTIVE IN THE SELECTION OF MEMBERS OF
CONGRESS.  IT WAS INTENDED TO MAKE ILLEGAL A NATION-WIDE "ROTTEN
BOROUGH" SYSTEM AS BETWEEN THE STATES.  THE POLICY BEHIND IT IS BROADER
THAN THAT.  IT PROHIBITS AS WELL CONGRESSIONAL "ROTTEN BOROUGHS" WITHIN
THE STATES, SUCH AS THE ONES HERE INVOLVED.  THE POLICY IS THAT WHICH
IS LAID DOWN BY ALL THE CONSTITUTIONAL PROVISIONS REGULATING THE
ELECTION OF MEMBERS OF THE HOUSE OF REPRESENTATIVES, INCLUDING ARTICLE
I WHICH GUARANTEES THE RIGHT TO VOTE AND TO HAVE THAT VOTE EFFECTIVELY
COUNTED:  ALL GROUPS, CLASSES, AND INDIVIDUALS SHALL TO THE EXTENT THAT
IT IS PRACTICALLY FEASIBLE BE GIVEN EQUAL REPRESENTATION IN THE HOUSE
OF REPRESENTATIVES, WHICH, IN CONJUNCTION WITH THE SENATE, WRITES THE
LAWS AFFECTING THE LIFE, LIBERTY, AND PROPERTY OF ALL THE PEOPLE. 

IT IS TRUE THAT THE STATES ARE AUTHORIZED BY SEC. 2 OF ARTICLE I OF
THE CONSTITUTION TO LEGISLATE ON THE SUBJECT OF CONGRESSIONAL ELECTIONS
TO THE EXTENT THAT CONGRESS HAS NOT DONE SO. THUS THE POWER GRANTED TO
THE STATE LEGISLATURE ON THIS SUBJECT IS PRIMARILY DERIVED FROM THE
FEDERAL AND NOT FROM THE STATE CONSTITUTION.  BUT THIS FEDERALLYGRANTED
POWER WITH RESPECT TO ELECTIONS OF CONGRESSMEN IS NOT TO FORMULATE
POLICY BUT RATHER TO IMPLEMENT THE POLICY LAID DOWN IN THE
CONSTITUTION, THAT, SO FAR AS FEASIBLE, VOTES BE GIVEN EQUALLY
EFFECTIVE WEIGHT.  THUS, A STATE LEGISLATURE CANNOT DENY ELIGIBLE
VOTERS THE RIGHT TO VOTE FOR CONGRESSMEN AND THE RIGHT TO HAVE THEIR
VOTE COUNTED.  IT CAN NO MORE DESTROY THE EFFECTIVENESS OF THEIR VOTE
IN PART AND NO MORE ACCOMPLISH THIS IN THE NAME OF "APPORTIONMENT" THAN
UNDER ANY OTHER NAME.  FOR LEGISLATION WHICH MUST INEVITABLY BRING
ABOUT GLARINGLY UNEQUAL REPRESENTATION IN THE CONGRESS IN FAVOR OF
SPECIAL CLASSES AND GROUPS SHOULD BE IN VALIDATED, "WHETHER
ACCOMPLISHED INGENIOUSLY OR INGENUOUSLY."  SMITH V. TEXAS, 311 U.S.
128, 132.  SEE ALSO LANE V. WILSON, 307 U.S. 268, 272. 

HAD ILLINOIS PASSED AN ACT REQUIRING THAT ALL OF ITS TWENTY-SIX
CONGRESSMEN BE ELECTED BY THE CITIZENS OF ONE COUNTY, IT WOULD CLEARLY
HAVE AMOUNTED TO A DENIAL TO THE CITIZENS OF THE OTHER COUNTIES OF
THEIR CONSTITUTIONALLY GUARANTEED RIGHT TO VOTE.  AND I CANNOT IMAGINE
THAT AN ACT THAT WOULD HAVE APPORTIONED TWENTY-FIVE CONGRESSMEN TO THE
STATE'S SMALLEST COUNTY AND ONE CONGRESSMAN TO ALL THE OTHERS, WOULD
HAVE BEEN SUSTAINED BY ANY COURT.  SUCH AN ACT WOULD CLEARLY HAVE
VIOLATED THE CONSTITUTIONAL POLICY OF EQUAL REPRESENTATION.  THE 1901
APPORTIONMENT ACT HERE INVOLVED VIOLATES THAT POLICY IN THE SAME WAY. 
THE POLICY WITH RESPECT TO FEDERAL ELECTIONS LAID DOWN BY THE
CONSTITUTION, WHILE IT DOES NOT MEAN THAT THE COURTS CAN OR SHOULD
PRESCRIBE THE PRECISE METHODS TO BE FOLLOWED BY STATE LEGISLATURES AND
THE INVALIDATION OF ALL ACTS THAT DO NOT EMBODY THOSE PRECISE METHODS,
DOES MEAN THAT STATE LEGISLATURES MUST MAKE REAL EFFORTS TO BRING ABOUT
APPROXIMATELY EQUAL REPRESENTATION OF CITIZENS IN CONGRESS.  HERE THE
LEGISLATURE OF ILLINOIS HAS NOT DONE SO.  WHETHER THAT WAS DUE TO
NEGLIGENCE OR WAS A WILFUL EFFORT TO DEPRIVE SOME CITIZENS OF AN
EFFECTIVE VOTE, THE ADMITTED RESULT IS THAT THE CONSTITUTIONAL POLICY
OF EQUALITY OF REPRESENTATION HAS BEEN DEFEATED.  UNDER THESE
CIRCUMSTANCES IT IS THE COURT'S DUTY TO INVALIDATE THE STATE LAW. 

IT IS CONTENDED, HOWEVER, THAT A COURT OF EQUITY DOES NOT HAVE THE
POWER, OR EVEN IF IT HAS THE POWER, THAT IT SHOULD NOT EXERCISE IT IN
THIS CASE.  TO DO SO, IT IS ARGUED, WOULD MEAN THAT THE COURT IS
ENTERING THE AREA OF "POLITICAL QUESTIONS."  I CANNOT AGREE WITH THAT
ARGUMENT.  THERE HAVE BEEN CASES, SUCH AS COLEMAN V. MILLER, SUPRA, PP.
454, 457, WHERE THIS COURT DECLINED TO DECIDE A QUESTION BECAUSE IT WAS
POLITICAL.  IN THE MILLER CASE, HOWEVER, THE QUESTION INVOLVED WAS
RATIFICATION OF A CONSTITUTIONAL AMENDMENT, A MATTER OVER WHICH THE
COURT BELIEVED CONGRESS HAD BEEN GIVEN FINAL AUTHORITY.  TO HAVE
DECIDED THAT QUESTION WOULD HAVE AMOUNTED TO A TRESPASS UPON THE
CONSTITUTIONAL POWER OF CONGRESS.  HERE WE HAVE BEFORE US A STATE LAW
WHICH ABRIDGES THE CONSTITUTIONAL RIGHTS OF CITIZENS TO CAST VOTES IN
SUCH WAY AS TO OBTAIN THE KIND OF CONGRESSIONAL REPRESENTATION THE
CONSTITUTION GUARANTEES TO THEM. 

IT IS TRUE THAT VOTING IS A PART OF ELECTIONS AND THAT ELECTIONS ARE
"POLITICAL."  BUT AS THIS COURT SAID IN NIXON V. HERNDON, SUPRA, IT IS
A MERE "PLAY UPON WORDS" TO REFER TO A CONTROVERSY SUCH AS THIS AS
"POLITICAL" IN THE SENSE THAT COURTS HAVE NOTHING TO DO WITH PROTECTING
AND VINDICATING THE RIGHT OF A VOTER TO CAST AN EFFECTIVE BALLOT.  THE
CLASSIC CASE, AMONG MYRIADS OF OTHERS, REFUTES THE CONTENTION THAT
COURTS ARE IMPOTENT IN CONNECTION WITH EVASIONS OF ALL "POLITICAL"
RIGHTS.  WOOD V. BROOM, 287 U.S. 1, DOES NOT PRECLUDE THE GRANTING OF
EQUITABLE RELIEF IN THIS CASE.  THERE THIS COURT SIMPLY HELD THAT THE
STATE APPORTIONMENT ACT DID NOT VIOLATE THE CONGRESSIONAL
REAPPORTIONMENT ACT OF 1929, 46 STAT. 21, 26, 27, SINCE THAT ACT DID
NOT REQUIRE ELECTION DISTRICTS OF EQUAL POPULATION.  THE COURT
EXPRESSLY RESERVED THE QUESTION OF "THE RIGHT OF THE COMPLAINANT TO
RELIEF IN EQUITY."  GILES V. HARRIS, 189 U.S. 475, ALSO DID NOT HOLD
THAT A COURT OF EQUITY COULD NOT, OR SHOULD NOT, EXERCISE ITS POWER IN
A CASE LIKE THIS.  AS WE SAID WITH REFERENCE TO THAT DECISION IN LANE
V. WILSON, 307 U.S. 268, 272-273, IT STANDS FOR THE PRINCIPLE THAT
COURTS WILL NOT ATTEMPT TO "SUPERVISE" ELECTIONS.  FURTHERMORE, THE
AUTHOR OF THE GILES V. HARRIS OPINION ALSO WROTE THE OPINION IN NIXON
V. HERNDON, IN WHICH A VOTER'S RIGHT TO CAST A BALLOT WAS HELD TO GIVE
RISE TO A JUSTICIABLE CONTROVERSY. 

IN THIS CASE, NO SUPERVISION OVER ELECTIONS IS ASKED FOR.  WHAT IS
ASKED IS THAT THIS COURT DO EXACTLY WHAT IT DID IN SMILEY V. HOLM,
SUPRA.  IT IS ASKED TO DECLARE A STATE APPORTIONMENT BILL INVALID AND
TO ENJOIN STATE OFFICIALS FROM ENFORCING IT.  THE ONLY DIFFERENCE
BETWEEN THIS CASE AND THE SMILEY CASE IS THAT THERE THE CASE ORIGINATED
IN THE STATE COURTS WHILE HERE THE PROCEEDING ORIGINATED IN THE FEDERAL
DISTRICT COURT.  THE ONLY TYPE OF CASE IN WHICH THIS COURT HAS HELD
THAT A FEDERAL DISTRICT COURT SHOULD IN ITS DISCRETION STAY ITS HAND
ANY MORE THAN A STATE COURT IS WHERE THE QUESTION IS ONE WHICH STATE
COURTS OR ADMINISTRATIVE AGENCIES HAVE SPECIAL COMPETENCE TO DECIDE. 
THIS IS NOT THAT TYPE OF QUESTION.  WHAT IS INVOLVED HERE IS THE RIGHT
TO VOTE GUARANTEED BY THE FEDERAL CONSTITUTION.  IT HAS ALWAYS BEEN THE
RULE THAT WHERE A FEDERALLY PROTECTED RIGHT HAS BEEN INVADED THE
FEDERAL COURTS WILL PROVIDE THE REMEDY TO RECTIFY THE WRONG DONE. 
FEDERAL COURTS HAVE NOT HESITATED TO EXERCISE THEIR EQUITY POWER IN
CASES INVOLVING DEPRIVATION OF PROPERTY AND LIBERTY.  EX PARTE YOUNG,
SUPRA; HAGUE V. C.I.O., 307 U.S. 496.  THERE IS NO REASON WHY THEY
SHOULD DO SO WHERE THE CASE INVOLVES THE RIGHT TO CHOOSE
REPRESENTATIVES THAT MAKE LAWS AFFECTING LIBERTY AND PROPERTY.    NOR
IS THERE ANY MORE DIFFICULTY IN ENFORCING A DECREE IN THIS CASE THAN
THERE WAS IN THE SMILEY CASE.  IT IS TRUE THAT DECLARATION OF
INVALIDITY OF THE STATE ACT AND THE ENJOINING OF STATE OFFICIALS WOULD
RESULT IN PROHIBITING THE STATE FROM ELECTING CONGRESSMEN UNDER THE
SYSTEM OF THE OLD CONGRESSIONAL DISTRICTS.  BUT IT WOULD LEAVE THE
STATE FREE TO ELECT THEM FROM THE STATE AT LARGE, WHICH, AS WE HELD IN
THE SMILEY CASE, IS A MANNER AUTHORIZED BY THE CONSTITUTION.  IT IS
SAID THAT IT WOULD BE INCONVENIENT FOR THE STATE TO CONDUCT THE
ELECTION IN THIS MANNER.  BUT IT HAS AN ELEMENT OF VIRTUE THAT THE MORE
CONVENIENT METHOD DOES NOT HAVE - NAMELY, IT DOES NOT DISCRIMINATE
AGAINST SOME GROUPS TO FAVOR OTHERS, IT GIVES ALL THE PEOPLE AN EQUALLY
EFFECTIVE VOICE IN ELECTING THEIR REPRESENTATIVES AS IS ESSENTIAL UNDER
A FREE GOVERNMENT, AND IT IS CONSTITUTIONAL. 

FN1  PEOPLE V. THOMPSON, 155 ILL. 451, 40 N.E. 307; FERGUS V. MARKS,
321 ILL. 510, 152 N.E. 557; FERGUS V. KINNEY, 333 ILL. 437, 164 N.E.
665; PEOPLE V. CLARDY, 334 ILL. 160, 165 N.E. 638; PEOPLE V. BLACKWELL,
342 ILL. 223, 173 N.E. 750; DALY V. MADISON COUNTY, 378 ILL. 357, 38
N.E.2D 160.  CF. MORAN V. BOWLEY, 347 ILL. 148, 179 N.E. 526. 

FN2  28 U.S.C. 41(14); BELL V. HOOD, 327 U.S. 678. 

FN3  SMILEY V. HOLM, 285 U.S. 355; KOENIG V. FLYNN, 285 U.S. 375;
CARROLL V. BECKER, 285 U.S. 380; WOOD V. BROOM, 287 U.S. 1; NIXON V.
HERNDON, 273 U.S. 536, 540; MCPHERSON V. BLACKER, 146 U.S. 1, 23-24;
SEE ALSO CASES COLLECTED IN 2 A.L.R. NOTE, 1337 ET SEQ. 

FN4  COLEMAN V. MILLER, 307 U.S. 433, 438, 467. 

FN5  EX PARTE YOUNG, 209 U.S. 123; STERLING V. CONSTANTIN, 287 U.S.
378, 393. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :


















UNIVERSAL OIL CO. V. ROOT RFG. CO., 328 U.S. 575 


NOS. 48 AND 64.  ARGUED OCTOBER 15, 1945.  - DECIDED JUNE 10, 1946.  -
147 F.2D 259, REVERSED. 


ATTORNEYS REPRESENTING CLIENTS INTERESTED IN PATENTS INVOLVED IN AN
ALLEGEDLY FRAUDULENT JUDGMENT THERETOFORE RENDERED BY A FEDERAL COURT
IN FAVOR OF THE PETITIONER, OFFERED AND UNDERTOOK TO SERVE AS AMICI
CURIAE IN AN INVESTIGATION OF THE JUDGMENT.  A MASTER WAS APPOINTED AND
AN INVESTIGATION WAS CONDUCTED, BUT WITHOUT THE USUAL SAFEGUARDS OF
ADVERSARY PROCEEDINGS.  PETITIONER, THOUGH IT HAD CONSENTED TO A
REARGUMENT OF THE CASE IN WHICH THE JUDGMENT WAS RENDERED, OBJECTED
THROUGHOUT TO THE CHARACTER OF THE PROCEEDINGS BEFORE THE MASTER IF
RIGHTS WERE TO BE ADJUDICATED THEREIN.  THE MASTER FOUND THAT THE
JUDGMENT WAS FRAUDULENT, AND THE COURT SET THE JUDGMENT ASIDE AND
ORDERED THE CASE REARGUED.  THE MASTER'S FEES AND EXPENSES, AND FEES
AND EXPENSES OF THE ATTORNEYS AS AMICI CURIAE, WERE TAXED AGAINST
PETITIONER.  HELD: 

1.  IT WAS NOT IMPROPER TO TAX AGAINST PETITIONER THE MASTER'S FEES
AND EXPENSES, IN VIEW OF THE FACT THAT THE PETITIONER APPEARED AND
PARTICIPATED IN THE INVESTIGATION BEFORE THE MASTER, WITH KNOWLEDGE
THAT THE MASTER'S FEES AND EXPENSES WOULD BE ASSESSED BY THE COURT.  P.
579. 

2.  IT WAS INEQUITABLE AND IMPROPER TO TAX AGAINST PETITIONER FEES
AND EXPENSES OF THE AMICI CURIAE.  P. 580. 

(A)  PETITIONER HAVING OBJECTED THROUGHOUT TO THE CHARACTER OF THE
PROCEEDINGS BEFORE THE MASTER IF RIGHTS WERE TO BE ADJUDICATED THEREIN,
IT WAS UNJUST TO TAX AGAINST PETITIONER ATTORNEY'S FEES AND EXPENSES. 
P. 580. 

(B)  THE AMICI CURIAE HAVING ALREADY BEEN COMPENSATED BY THEIR
CLIENTS FOR THEIR SERVICES IN THE INVESTIGATION, IT WAS INEQUITABLE AND
INAPPROPRIATE THAT THEIR FEES AND EXPENSES BE TAXED AGAINST PETITIONER
FOR REIMBURSEMENT OF THE CLIENTS.  P. 581. 

UNIVERSAL OIL PRODUCTS CO. V. ROOT REFINING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

THE CIRCUIT COURT OF APPEALS TAXED AGAINST THE PETITIONER CERTAIN
FEES AND COSTS IN CONNECTION WITH AN INVESTIGATION OF AN ALLEGEDLY
FRAUDULENT JUDGMENT THERETOFORE RENDERED BY THAT COURT IN FAVOR OF THE
PETITIONER.  THIS COURT GRANTED CERTIORARI.  324 U.S. 839.  IN NO. 48
THE JUDGMENT IS REVERSED AND REMANDED; AND IN NO. 64 THE WRIT OF
CERTIORARI, INVOKED UNDER SEC. 262 OF THE JUDICIAL CODE, IS DISMISSED. 
P. 581. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONER, UNIVERSAL OIL PRODUCTS COMPANY, IS A PATENT-HOLDING AND
LICENSING COMPANY.  IN 1929 AND 1931, IT BROUGHT SUITS FOR INFRINGEMENT
AGAINST THE WINKLERKOCH ENGINEERING CO. AND THE ROOT REFINING COMPANY,
RESPECTIVELY.  THE SUITS WERE CONSOLIDATED, THE VALIDITY OF THE PATENTS
SUSTAINED, AND DECREES FOR THEIR INFRINGEMENT ENTERED.  6 F.SUPP. 
763.  THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT, IN AN OPINION
BY JUDGE J. WARREN DAVIS, AFFIRMED THE DECREES, 78 F.2D 991, AND THIS
COURT, IN OCTOBER, 1935, DENIED CERTIORARI.  ROOT REFINING CO. V.
UNIVERSAL OIL PRODUCTS CO., 296 U.S. 626.  BOTH BEFORE AND AFTER THE
DECISION IN THE ROOT CASE, UNIVERSAL STARTED SIMILAR INFRINGEMENT SUITS
AGAINST OTHER OIL COMPANIES.  UNIVERSAL INVOKED THE ROOT DECISIONS AS
RES JUDICATA AGAINST SOME OF THESE COMPANIES.  IT MAINTAINED THAT,
ALTHOUGH THESE COMPANIES HAD NOT BEEN PARTIES OF RECORD IN THE ROOT
SUIT, THEY WERE MEMBERS OF A "PATENT CLUB," TO WHICH ROOT BELONGED AND
WHICH HAD BEEN FORMED TO POOL MONEY FOR THE DEFENSE OF ANY MEMBER OF
THE "CLUB" IN AN INFRINGEMENT SUIT AGAINST IT, AND THAT THE ROOT CASE
HAD BEEN DEFENDED BY THE ATTORNEYS FOR THE "PATENT CLUB."  UNIVERSAL
CONTENDED THAT THESE CIRCUMSTANCES MADE THE OTHER OIL COMPANIES
SUBSTANTIAL PARTIES TO THE ROOT LITIGATION AND AS SUCH BOUND BY ITS
OUTCOME. 

ON JUNE 2, 1941, DURING THE PENDENCY OF THESE LATTER CASES, ATTORNEYS
WHO HAD REPRESENTED ROOT AND WERE REPRESENTING THE OTHER OIL COMPANIES
ADVISED THE ATTORNEYS OF THE PETITIONER THAT ON JUNE 5, 1941, THEY
WOULD BRING TO THE ATTENTION OF THE JUDGES OF THE THIRD CIRCUIT COURT
OF APPEALS THE CIRCUMSTANCES SURROUNDING THE APPEAL IN THE ROOT CASE,
AND, MORE PARTICULARLY, THE RELATIONS OF ONE MORGAN S. KAUFMAN TO THE
OUTCOME OF THAT APPEAL, AND INVITED PETITIONER'S ATTORNEYS TO ATTEND. 
AT THE HEARING ON JUNE 5, THE MOVING ATTORNEYS SUGGESTED, IN SUBSTANCE,
THAT TESTIMONY TAKEN AT THE TRIAL OF JUDGE DAVIS POINTED TO BRIBERY OF
JUDGE DAVIS BY KAUFMAN TO SECURE A DECISION FAVORABLE TO UNIVERSAL IN
THE ROOT APPEAL.  THEY URGED AN INVESTIGATION OF THE QUESTIONABLE
FEATURES SURROUNDING AFFIRMANCE OF THE ROOT DECREE, BUT EXPRESSED DOUBT
AS TO THE CAPACITY IN WHICH THEY COULD FORMALLY MAKE SUCH A REQUEST OF
THE COURT.  THEIR DIFFICULTY WAS DUE TO THE FACT THAT AFTER THIS COURT
HAD DENIED CERTIORARI IN THE ROOT CASE, ROOT HAD SETTLED ITS
CONTROVERSY WITH UNIVERSAL AND WAS UNWILLING TO DISTURB THE AGREEMENT
BY AN ATTEMPT TO REOPEN THE LAW SUIT.  THE OTHER OIL COMPANIES WHO WERE
IN LITIGATION WITH ROOT INSISTED THAT THEY WERE NEITHER FORMAL NOR
SUBSTANTIAL PARTIES TO THE ROOT CASE.  AND SO THEIR ATTORNEYS, WHO WERE
THE ATTORNEYS IN THE ROOT LITIGATION AND THE MOVING ATTORNEYS IN THE
PRESENT PROCEEDINGS, COULD NOT MOVE ON THEIR BEHALF TO HAVE THE ROOT
DECREE VACATED.  BUT THESE OTHER OIL COMPANIES HAD AN INTEREST IN THE
ROOT DECREE SINCE IT MIGHT BE USED IN PENDING CASES TO THEIR
DISADVANTAGE.  UNIVERSAL OFFERED TO CONSENT TO A REARGUMENT OF THE ROOT
CASE AND TO PRESERVE TO THE ROOT COMPANY THE BENEFITS OF THE EXISTING
AGREEMENT, EVEN IF UNIVERSAL SHOULD PREVAIL UPON REARGUMENT. 
THROUGHOUT THESE PROCEEDINGS UNIVERSAL STOOD READY TO CARRY OUT THIS
OFFER, BUT NOTHING EVER CAME OF IT, PRESUMABLY BECAUSE ROOT WAS NOT
REPRESENTED AT THESE HEARINGS AND THE OTHER OIL COMPANIES WERE NOT
PARTIES OF RECORD IN THE ORIGINAL LITIGATION. 

THE DILEMMA OF THE ATTORNEYS WHO INITIATED THESE PROCEEDINGS TO SET
ASIDE A FRAUDULENT JUDGMENT BUT COULD NOT SPEAK FOR ANY CLIENT PREPARED
TO COME BEFORE THE COURT AS A PARTY IN INTEREST, WAS RESOLVED BY A
SUGGESTION FROM THE PRESIDING JUDGE OF THE CIRCUIT COURT OF APPEALS. 
THE SUGGESTION WAS THAT THE COURT WOULD ACCEPT THE SERVICES OF THESE
ATTORNEYS AS AMICI CURIAE.  ACCORDINGLY, THEY OFFERED THEMSELVES IN
THAT ROLE.  UPON THEIR ACCEPTANCE AS SUCH BY THE COURT, THEY ASKED FOR
THE APPOINTMENT OF A MASTER TO INVESTIGATE THE ROOT APPEAL.  WHILE THEY
THUS PROCEEDED AS AMICI THEY STATED QUITE CANDIDLY THAT THEY WERE ALSO
CONCERNED WITH THE INTERESTS OF THEIR CLIENTS, THE OIL COMPANIES IN
PENDING LITIGATION.  AS A MATTER OF LAW, HOWEVER, THEIR STATUS WAS ONLY
THAT OF AMICI, FOR THEIR CLIENTS DID NOT SUBJECT THEMSELVES TO THE
COURT'S JURISDICTION.  THE RELATION OF THESE LAWYERS TO THE COURT,
AFTER IT RECOGNIZED THEM AS AMICI, REMAINED THROUGHOUT ONLY THAT OF
AMICI. 

A MASTER WAS APPOINTED AND HE CONDUCTED AN EXTENSIVE INVESTIGATION. 
HE EXAMINED RECORDS IN THE POSSESSION OF THE UNITED STATES ATTORNEY FOR
THE SOUTHERN DISTRICT OF NEW YORK, THE RECORDS OF PROCEEDINGS BEFORE A
PHILADELPHIA GRAND JURY, BANK RECORDS, AND VARIOUS STATEMENTS OF
INTERESTED PARTIES.  FROM THIS MASS OF MATERIAL, HE SELECTED THOSE
DOCUMENTS WHICH HE DEEMED APPROPRIATE FOR SUBMISSION TO THE INSPECTION
OF THE AMICI AND OF COUNSEL FOR UNIVERSAL.  WITNESSES WERE ALSO HEARD
AND PETITIONER WAS GIVEN THE RIGHT TO CROSS-EXAMINE.  BUT THE
INVESTIGATION WAS NOT GOVERNED BY THE CUSTOMARY RULES OF TRIAL
PROCEDURE.  PETITIONER'S COUNSEL DULY EXCEPTED TO THE MANNER IN WHICH
THE INVESTIGATION WAS BEING CONDUCTED, "IF IT WERE TO INVOLVE ANY
PROPERTY RIGHTS OF OUR CLIENTS, INCLUDING THE VALIDITY OF ANY JUDGMENT
..."  THE MASTER EVIDENTLY DID NOT VIEW THE PROCEEDINGS IN THE LIGHT OF
AN ADVERSARY LITIGATION.  HE RULED "THAT THE INVESTIGATION - FOR THAT
IS ALL IT IS - SHOULD (NOT) BE CONDUCTED STRICTLY ACCORDING TO THE
RULES OF EVIDENCE IN LITIGATION."  AT THE CONCLUSION OF THIS
INVESTIGATION, THE MASTER RENDERED A REPORT IN WHICH HE CONCLUDED "THAT
THERE WAS IN CONNECTION WITH THIS CASE SUCH FRAUD AS TAINTED AND
INVALIDATED THE JUDGMENTS" IN THE ROOT APPEAL. 

ON THE BASIS OF THIS CONCLUSION, THE COURT OF APPEALS ON JUNE 15,
1944, ENTERED AN ORDER DIRECTING THAT THE JUDGMENTS BE VACATED AND THE
CAUSE BE REARGUED.  THE RELIEF THUS GRANTED WAS THAT TO WHICH
PETITIONER HAD CONSENTED BEFORE THE INVESTIGATION GOT UNDER WAY.  ON
JULY 24, 1944, THE AMICI APPLIED TO THE COURT BELOW FOR AN ORDER
DIRECTING THAT THE EXPENSES AND COMPENSATION OF THE MASTER BE TAXED
AGAINST UNIVERSAL.  IN VIEW OF THE FACT THAT UNIVERSAL APPEARED AND
PARTICIPATED IN THE INVESTIGATION BEFORE THE MASTER, WITH ACQUIESCING
KNOWLEDGE THAT THE MASTER'S FEES AND EXPENSES WOULD BE ASSESSED BY THE
COURT, WE DO NOT DISTURB THE TAXATION OF THE MASTER'S FEES AND
EXPENSES.  THE AMICI ALSO ASKED THE COURT TO ASSESS AGAINST UNIVERSAL
THEIR EXPENSES AND REASONABLE ATTORNEYS' FEES.  THE COURT AWARDED
$54,606.57 IN EXPENSES, PART OF WHICH WAS FOR THE AMOUNT THEY HAD
ADVANCED IN PAYMENT TO THE MASTER, AND $100,000 AS COMPENSATION FOR
THEIR SERVICES.  THESE AMOUNTS HAD IN FACT ALREADY BEEN PAID TO THE
ATTORNEYS BY THEIR OIL COMPANY CLIENTS.  THE AWARDS THUS CONSTITUTED AN
ORDER FOR REIMBURSEMENT OF THE CLIENTS BY UNIVERSAL.  THE CASE WAS
HEARD BY THE COURT EN BANC, AND TWO OF THE JUDGES THOUGHT THAT THE
AMICI WERE ONLY ENTITLED TO A COMPENSATION OF $25,000.  147 F.2D 259. 
QUESTIONS OF IMPORTANCE IN JUDICIAL ADMINISTRATION WERE OBVIOUSLY
INVOLVED BY THE DISPOSITION BELOW, AND SO WE BROUGHT THE CASE HERE. 
324 U.S. 839. 

THE INHERENT POWER OF A FEDERAL COURT TO INVESTIGATE WHETHER A
JUDGMENT WAS OBTAINED BY FRAUD, IS BEYOND QUESTION.  HAZEL-ATLAS CO. V.
HARTFORD-EMPIRE CO., 322 U.S. 238.  THE POWER TO UNEARTH SUCH A FRAUD
IS THE POWER TO UNEARTH IT EFFECTIVELY.  ACCORDINGLY, A FEDERAL COURT
MAY BRING BEFORE IT BY APPROPRIATE MEANS ALL THOSE WHO MAY BE AFFECTED
BY THE OUTCOME OF ITS INVESTIGATION.  BUT IF THE RIGHTS OF PARTIES ARE
TO BE ADJUDICATED IN SUCH AN INVESTIGATION, THE USUAL SAFEGUARDS OF
ADVERSARY PROCEEDINGS MUST BE OBSERVED.  NO DOUBT, IF THE COURT FINDS
AFTER A PROPER HEARING THAT FRAUD HAS BEEN PRACTICED UPON IT, OR THAT
THE VERY TEMPLE OF JUSTICE HAS BEEN DEFILED, THE ENTIRE COST OF THE
PROCEEDINGS COULD JUSTLY BE ASSESSED AGAINST THE GUILTY PARTIES.  SUCH
IS PRECISELY A SITUATION WHERE "FOR DOMINATING REASONS OF JUSTICE" A
COURT MAY ASSESS COUNSEL FEES AS PART OF THE TAXABLE COSTS.  SPRAGUE V.
TICONIC NATIONAL BANK, 307 U.S. 161, 167.  BUT, OBVIOUSLY, A COURT
CANNOT DEPRIVE A SUCCESSFUL PARTY OF HIS JUDGMENT WITHOUT A PROPER
HEARING.  THIS QUESTION IS NOT BEFORE US, EXCEPT AS IT BEARS ON THE
ORDER ALLOWING ATTORNEYS' FEES AND COSTS.  BUT IF THE JUDGMENT COULD
NOT BE NULLIFIED WITHOUT ADEQUATE OPPORTUNITY TO BE HEARD IN A PROPER
CONTEST, NEITHER IS IT JUST TO ASSESS THE FEES OF ATTORNEYS AND THEIR
EXPENSES IN CONDUCTING AN INVESTIGATION WHERE PETITIONER THROUGHOUT
OBJECTED TO THE CHARACTER OF THE INVESTIGATION IF IT WAS TO BE USED AS
A BASIS FOR ADJUDICATING RIGHTS. 

THE CASE MAY READILY BE DISPOSED OF ON A NARROWER GROUND.  NO DOUBT,
A COURT THAT UNDERTAKES AN INVESTIGATION OF FRAUD UPON IT MAY AVAIL
ITSELF, AS DID THE COURT BELOW, OF AMICI TO REPRESENT THE PUBLIC
INTEREST IN THE ADMINISTRATION OF JUSTICE.  BUT COMPENSATION IS NOT THE
NORMAL REWARD OF THOSE WHO OFFER SUCH SERVICES.  AFTER ALL, A FEDERAL
COURT CAN ALWAYS CALL ON LAW OFFICERS OF THE UNITED STATES TO SERVE AS
AMICI.  HERE THE AMICI ALSO REPRESENTED SUBSTANTIAL PRIVATE INTERESTS. 
THEIR CLIENTS WERE INTERESTED IN VACATING THE ROOT JUDGMENT THOUGH THEY
WOULD NOT SUBJECT THEMSELVES TO THE COURT'S JURISDICTION AND THE
HAZARDS OF AN ADVERSE DETERMINATION.  WHILE THE AMICI FORMALLY SERVED
THE COURT, THEY WERE IN FACT IN THE PAY OF PRIVATE CLIENTS.  AMICI
SELECTED BY THE COURT TO VINDICATE ITS HONOR ORDINARILY OUGHT NOT BE IN
THE SERVICE OF THOSE HAVING PRIVATE INTERESTS IN THE OUTCOME. 
CERTAINLY IT IS NOT CONSONANT WITH THAT REGARD FOR FASTIDIOUSNESS WHICH
SHOULD GOVERN A COURT OF EQUITY, TO AWARD FEES AND COSTS OF AMICI
CURIAE WHO HAVE ALREADY BEEN COMPENSATED BY PRIVATE CLIENTS SO THAT
THESE BE REIMBURSED FOR WHAT THEY VOLUNTARILY PAID. 

IN NO. 48, THE JUDGMENT IS REVERSED AND REMANDED TO THE CIRCUIT COURT
OF APPEALS FOR THE ENTRY OF A JUDGMENT IN CONFORMITY WITH THIS
OPINION. 

IN NO. 64, THE WRIT OF CERTIORARI INVOKED UNDER SEC. 262 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 377, IS DISMISSED. 

MR. JUSTICE BLACK CONCURS IN THE NARROWER GROUND OF THE OPINION. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :












DAVIS V. UNITED STATES, 328 U.S. 582 


NO. 404.  ARGUED FEBRUARY 5, 1946.  - DECIDED JUNE 10, 1946.  - 151 F.2D
140, AFFIRMED. 


1.  HAVING OBTAINED CLEAR EVIDENCE OF VIOLATIONS OF THE GASOLINE
RATIONING REGULATIONS THROUGH SALES WITHOUT COUPONS AND AT ABOVE
CEILING PRICES (WHICH ARE MISDEMEANORS), OFFICERS ARRESTED PETITIONER,
PRESIDENT OF THE CORPORATION WHICH MAINTAINED THE OFFENDING FILLING
STATION, AT HIS PLACE OF BUSINESS DURING BUSINESS HOURS AND DEMANDED
RATION COUPONS COVERING THE AGGREGATE AMOUNT OF SALES.  AFTER REFUSING
AT FIRST, PETITIONER SOON ACQUIESCED AND SURRENDERED THE COUPONS.  IN
HIS TRIAL FOR POSSESSING THEM UNLAWFULLY (A MISDEMEANOR), PETITIONER
CONTENDED THAT THERE HAD BEEN AN UNLAWFUL SEARCH WHICH RESULTED IN
SEIZURE OF THE COUPONS AND THEIR USE IN EVIDENCE AGAINST HIM, IN
VIOLATION OF HIS RIGHTS UNDER THE FOURTH AND FIFTH AMENDMENTS.  THE
EVIDENCE WAS CONFLICTING; BUT THE DISTRICT COURT FOUND THAT HE HAD
CONSENTED TO THE SEARCH AND SEIZURE AND THAT NO FORCE OR THREAT OF
FORCE HAD BEEN EMPLOYED TO PERSUADE HIM.  HE WAS CONVICTED.  HELD:  THE
CONVICTION IS AFFIRMED, BECAUSE THIS COURT CANNOT SAY AS A MATTER OF
LAW THAT THE DISTRICT COURT'S FINDING OF FACT WAS ERRONEOUS.  PP. 593,
594. 

2.  THE GASOLINE RATION COUPONS NEVER BECAME THE PRIVATE PROPERTY OF
THE HOLDER BUT REMAINED AT ALL TIMES THE PROPERTY OF THE GOVERNMENT AND
SUBJECT TO INSPECTION AND RECALL BY IT.  P. 588. 

3.  IN THE LAW OF SEARCHES AND SEIZURES A DISTINCTION IS MADE BETWEEN
PRIVATE PAPERS OR DOCUMENTS AND PUBLIC PROPERTY IN THE CUSTODY OF A
CITIZEN.  WILSON V. UNITED STATES, 221 U.S. 361.  PP. 589-591. 

4.  WHATEVER MAY BE THE LIMITS OF INSPECTION UNDER THE REGULATIONS,
LAW ENFORCEMENT IS NOT SO IMPOTENT AS TO REQUIRE OFFICERS WHO HAVE THE
RIGHT TO INSPECT A PLACE OF BUSINESS TO STAND MUTE WHEN CLEAR EVIDENCE
OF CRIMINAL ACTIVITY IS KNOWN TO THEM.  AMOS V. UNITED STATES, 255 U.S.
313, DISTINGUISHED.  PP. 592, 593. 

5.  WHERE OFFICERS SEEK TO INSPECT PUBLIC DOCUMENTS AT THE PLACE OF
BUSINESS WHERE THEY ARE REQUIRED TO BE KEPT, PERMISSIBLE LIMITS OF
PERSUASION ARE NOT SO NARROW AS WHERE PRIVATE PAPERS ARE SOUGHT, SINCE
THE DEMAND IS ONE OF RIGHT.  P. 593. 

DAVIS V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

PETITIONER WAS CONVICTED OF UNLAWFUL POSSESSION OF GASOLINE RATION
COUPONS IN VIOLATION OF SEC. 2(A) OF THE ACT OF JUNE 28, 1940, AS
AMENDED BY THE ACT OF MAY 31, 1941, AND BY SEC. 301 OF THE SECOND WAR
POWERS ACT OF MARCH 27, 1942.  THE CIRCUIT COURT OF APPEALS AFFIRMED. 
151 F.2D 140.  THIS COURT GRANTED CERTIORARI.  326 U.S. 711.  AFFIRMED,
P. 594. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED UNDER AN INFORMATION CHARGING HIM WITH
UNLAWFULLY HAVING IN HIS POSSESSION ON JUNE 20, 1944, 168 GASOLINE
RATION COUPONS, REPRESENTING 504 GALLONS OF GASOLINE.  FN1  THE
JUDGMENT OF CONVICTION WAS SUSTAINED BY THE CIRCUIT COURT OF APPEALS
(151 F.2D 140) OVER THE OBJECTION THAT THERE WAS AN UNLAWFUL SEARCH
WHICH RESULTED IN THE SEIZURE OF THE COUPONS AND THEIR USE AT THE TRIAL
IN VIOLATION OF THE RULE OF WEEKS V. UNITED STATES, 232 U.S. 383,
UNITED STATES V. LEFKOWITZ, 285 U.S. 452, AND RELATED CASES.  THE CASE
IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE
OF THE IMPORTANCE OF THE QUESTION PRESENTED. 

DAVIS WAS PRESIDENT OF A CORPORATION BY THE NAME OF DAVIS AUTO
LAUNDRY CORPORATION WHICH MAINTAINED A GASOLINE FILLING STATION IN NEW
YORK CITY.  HE WAS SUSPECTED OF RUNNING A BLACK MARKET IN GASOLINE. 
SEVERAL AGENTS DROVE TO A PLACE NEAR THE GASOLINE STATION AND OBSERVED
IT FOR A FEW HOURS.  THEY HAD NO SEARCH WARRANT NOR A WARRANT FOR THE
ARREST OF PETITIONER.  TWO OF THE AGENTS DROVE THEIR CARS INTO THE
STATION AND ASKED FOR GAS.  PETITIONER WAS NOT PRESENT AT THE TIME. 
BUT AN ATTENDANT, AN EMPLOYEE OF PETITIONER, WAS PRESENT AND WAITED ON
THEM.  THROUGH HER EACH OF THE TWO AGENTS SUCCEEDED IN PURCHASING GAS
WITHOUT GASOLINE RATION STAMPS BY PAYING TWENTY CENTS A GALLON ABOVE
THE CEILING PRICE.  SHORTLY THEREAFTER THEY ARRESTED HER FOR SELLING
GASOLINE WITHOUT COUPONS AND ABOVE THE CEILING PRICE.  SHE SAID THAT IN
DOING SO SHE WAS FOLLOWING PETITIONER'S INSTRUCTIONS.  WHILE SHE WAS
BEING QUESTIONED BY THE AGENTS, PETITIONER RETURNED TO THE STATION IN
HIS CAR.  THEY IMMEDIATELY ARRESTED HIM ON THE SAME CHARGE AS THE
ATTENDANT  FN2 AND SEARCHED HIS CAR.  THEY DEMANDED AND RECEIVED FROM
HIM THE KEYS TO TIN BOXES ATTACHED TO THE GASOLINE PUMPS AND IN WHICH
GASOLINE RATION COUPONS WERE KEPT.  ONE OF THEM BEGAN TO EXAMINE AND
MEASURE THE GASOLINE STORAGE TANKS AND THEIR CONTENTS.  IT SOON
APPEARED THAT THE GASOLINE RATION COUPONS FOUND IN THE TIN BOXES WERE
NOT SUFFICIENT TO COVER THE AMOUNT BY WHICH THE CAPACITY OF THE STORAGE
TANKS HAD BEEN DIMINISHED BY SALES. 

WHILE THIS EXAMINATION OF THE STORAGE TANKS WAS UNDER WAY, PETITIONER
WENT WITH TWO OF THE AGENTS INTO HIS OFFICE WHICH WAS ON THE PREMISES. 
FN3  THE OFFICE CONSISTED OF A WAITING ROOM AND INNER ROOM.  HE WAS
QUESTIONED IN THE WAITING ROOM FOR ABOUT AN HOUR.  A DOOR LED FROM THE
WAITING ROOM INTO THE INNER ROOM WHERE RECORDS WERE KEPT.  THE DOOR TO
IT WAS LOCKED.  PETITIONER AT FIRST REFUSED TO OPEN IT.  WHEN TOLD THAT
THE EXAMINATION OF THE TANKS HAD REVEALED A SHORTAGE OF COUPONS,
PETITIONER ASSURED THE AGENTS THAT HE HAD SUFFICIENT COUPONS TO COVER
THE SHORTAGE AND THAT THEY WERE IN THE LOCKED ROOM.  THE OFFICERS ASKED
TO SEE THE COUPONS AND BASED THEIR DEMAND ON THE FACT THAT THE COUPONS
WERE PROPERTY OF THE GOVERNMENT OF WHICH PETITIONER WAS ONLY THE
CUSTODIAN.  PETITIONER PERSISTED, HOWEVER, IN HIS REFUSAL TO UNLOCK THE
DOOR.  BEFORE LONG HE DID UNLOCK IT, TOOK FROM A FILING CABINET THE
COUPONS ON WHICH THE CONVICTION RESTS, AND GAVE THEM TO THE AGENTS.  HE
TESTIFIED THAT HE DID SO BECAUSE THE AGENTS THREATENED TO BREAK DOWN
THE DOOR IF HE DID NOT.  THE DISTRICT COURT DID NOT BELIEVE
PETITIONER'S VERSION OF THE EPISODE.  ONE AGENT TESTIFIED:  "Q.  DID
YOU TRY TO CONVINCE DAVIS THAT HE OUGHT TO OPEN THAT DOOR LEADING INTO
THE PRIVATE OFFICE?  A. I DIDN'T TRY TO CONVINCE HIM.  I TOLD HIM THAT
HE WOULD HAVE TO OPEN THAT DOOR.  Q. DID YOU TELL HIM IF HE DID NOT YOU
WOULD BREAK IT DOWN?  A. I DID NOT TELL HIM THAT AT ALL."  AND IT
APPEARED THAT WHILE THE TWO AGENTS WERE TALKING WITH DAVIS IN THE
WAITING ROOM, ANOTHER AGENT WAS IN THE REAR SHINING A FLASHLIGHT
THROUGH AN OUTSIDE WINDOW OF THE INNER ROOM AND APPARENTLY TRYING TO
RAISE THE WINDOW.  ACCORDING TO ONE OF THE AGENTS, WHEN PETITIONER SAW
THAT, HE SAID, "HE DON'T NEED TO DO THAT.  I WILL OPEN THE DAMNED
DOOR."  SOME SIX WEEKS LATER PETITIONER WAS ARRESTED ON A WARRANT AND
ARRAIGNED. 

THE DISTRICT COURT FOUND THAT PETITIONER HAD CONSENTED TO THE SEARCH
AND SEIZURE AND THAT HIS CONSENT WAS VOLUNTARY.  THE CIRCUIT COURT OF
APPEALS DID NOT DISTURB THAT FINDING, ALTHOUGH IT EXPRESSED SOME DOUBT
CONCERNING IT.  IN ITS VIEW, THE SEIZED COUPONS WERE PROPERLY
INTRODUCED INTO EVIDENCE BECAUSE THE SEARCH AND SEIZURE, BEING
INCIDENTAL TO THE ARREST, WERE "REASONABLE" REGARDLESS OF PETITIONER'S
CONSENT. 

THE FOURTH AMENDMENT PROVIDES: 

"THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL
NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE
TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." 

AND THE FIFTH AMENDMENT PROVIDES IN PART THAT "NO PERSON  ...  SHALL
BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF
..." 

THE LAW OF SEARCHES AND SEIZURES AS REVEALED IN THE DECISIONS OF THIS
COURT IS THE PRODUCT OF THE INTERPLAY OF THESE TWO CONSTITUTIONAL
PROVISIONS.  BOYD V. UNITED STATES, 116 U.S. 616.  IT REFLECTS A DUAL
PURPOSE - PROTECTION OF THE PRIVACY OF THE INDIVIDUAL, HIS RIGHT TO BE
LET ALONE; PROTECTION OF THE INDIVIDUAL AGAINST COMPULSORY PRODUCTION
OF EVIDENCE TO BE USED AGAINST HIM.  BOYD V. UNITED STATES, SUPRA;
WEEKS V. UNITED STATES, SUPRA.  AND SEE OKLAHOMA PRESS PUB. CO. V.
WALLING, 327 U.S. 186. 

WE DO NOT STOP TO REVIEW ALL OF OUR DECISIONS WHICH DEFINE THE SCOPE
OF "REASONABLE" SEARCHES AND SEIZURES.  FOR THEY HAVE LARGELY DEVELOPED
OUT OF CASES INVOLVING THE SEARCH AND SEIZURE OF PRIVATE PAPERS.  WE
ARE DEALING HERE NOT WITH PRIVATE PAPERS OR DOCUMENTS, BUT WITH
GASOLINE RATION COUPONS WHICH NEVER BECAME THE PRIVATE PROPERTY OF THE
HOLDER BUT REMAINED AT ALL TIMES THE PROPERTY OF THE GOVERNMENT AND
SUBJECT TO INSPECTION AND RECALL BY IT. 

AT THE TIMES RELEVANT HERE, GASOLINE WAS RATIONED.  DEALERS COULD
LAWFULLY SELL IT ONLY ON RECEIPT OF RATION COUPONS.  FN4  THEY IN TURN
COULD RECEIVE THEIR SUPPLIES OF GASOLINE FROM THE DISTRIBUTORS ONLY ON
DELIVERY OF COUPONS.  FN5  IT WAS REQUIRED THAT A DEALER AT ALL TIMES
HAVE COUPONS ON HAND AT HIS PLACE OF BUSINESS OR IN A BANK EQUAL TO BUT
NOT IN EXCESS OF THE GALLONAGE NECESSARY TO FILL HIS STORAGE TANKS. 
FN6  POSSESSION OF COUPONS OBTAINED IN CONTRAVENTION OF THE REGULATIONS
WAS UNLAWFUL.  FN7  THE COUPONS REMAINED THE PROPERTY OF THE OFFICE OF
PRICE ADMINISTRATION  FN8  AND WERE AT ALL TIMES SUBJECT TO RECALL BY
IT.  FN9  AND THEY WERE SUBJECT TO INSPECTION AT ALL TIMES.  FN10 

WE ARE THUS DEALING NOT WITH PRIVATE PAPERS OR DOCUMENTS BUT WITH
PUBLIC PROPERTY IN THE CUSTODY OF A CITIZEN.  THE DISTINCTION BETWEEN
THE TWO CLASSES OF PROPERTY IN THE LAW OF SEARCHES AND SEIZURES WAS
RECOGNIZED IN WILSON V. UNITED STATES, 221 U.S. 361, 380, WHERE THE
COURT STATED: 

"BUT THE PHYSICAL CUSTODY OF INCRIMINATING DOCUMENTS DOES NOT OF
ITSELF PROTECT THE CUSTODIAN AGAINST THEIR COMPULSORY PRODUCTION.  THE
QUESTION STILL REMAINS WITH RESPECT TO THE NATURE OF THE DOCUMENTS AND
THE CAPACITY IN WHICH THEY ARE HELD.  IT MAY YET APPEAR THAT THEY ARE
OF A CHARACTER WHICH SUBJECTS THEM TO THE SCRUTINY DEMANDED AND THAT
THE CUSTODIAN HAS VOLUNTARILY ASSUMED A DUTY WHICH OVERRIDES HIS CLAIM
OF PRIVILEGE.  THIS WAS CLEARLY IMPLIED IN THE BOYD CASE WHERE THE FACT
THAT THE PAPERS INVOLVED WERE THE PRIVATE PAPERS OF THE CLAIMANT WAS
CONSTANTLY EMPHASIZED.  THUS, IN THE CASE OF PUBLIC RECORDS AND
OFFICIAL DOCUMENTS, MADE OR KEPT IN THE ADMINISTRATION OF PUBLIC
OFFICE, THE FACT OF ACTUAL POSSESSION OR OF LAWFUL CUSTODY WOULD NOT
JUSTIFY THE OFFICER IN RESISTING INSPECTION, EVEN THOUGH THE RECORD WAS
MADE BY HIMSELF AND WOULD SUPPLY THE EVIDENCE OF HIS CRIMINAL
DERELICTION.  IF HE HAS EMBEZZLED THE PUBLIC MONEYS AND FALSIFIED THE
PUBLIC ACCOUNTS HE CANNOT SEAL HIS OFFICIAL RECORDS AND WITHHOLD THEM
FROM THE PROSECUTING AUTHORITIES ON A PLEA OF CONSTITUTIONAL PRIVILEGE
AGAINST SELF-CRIMINATION.  THE PRINCIPLE APPLIES NOT ONLY TO PUBLIC
DOCUMENTS IN PUBLIC OFFICES, BUT ALSO TO RECORDS REQUIRED BY LAW TO BE
KEPT IN ORDER THAT THERE MAY BE SUITABLE INFORMATION OF TRANSACTIONS
WHICH ARE THE APPROPRIATE SUBJECTS OF GOVERNMENTAL REGULATION AND THE
ENFORCEMENT OF RESTRICTIONS VALIDLY ESTABLISHED.  THERE THE PRIVILEGE,
WHICH EXISTS AS TO PRIVATE PAPERS, CANNOT BE MAINTAINED." 

THE COURT PROCEEDED TO ANALYZE THE ENGLISH AND AMERICAN AUTHORITIES
AND ADDED, PP. 381-382: 

"THE FUNDAMENTAL GROUND OF DECISION IN THIS CLASS OF CASES, IS THAT
WHERE, BY VIRTUE OF THEIR CHARACTER AND THE RULES OF LAW APPLICABLE TO
THEM, THE BOOKS AND PAPERS ARE HELD SUBJECT TO EXAMINATION BY THE
DEMANDING AUTHORITY, THE CUSTODIAN HAS NO PRIVILEGE TO REFUSE
PRODUCTION ALTHOUGH THEIR CONTENTS TEND TO CRIMINATE HIM.  IN ASSUMING
THEIR CUSTODY HE HAS ACCEPTED THE INCIDENT OBLIGATION TO PERMIT
INSPECTION." 

THE DISTINCTION IS BETWEEN PROPERTY TO WHICH THE GOVERNMENT IS
ENTITLED TO POSSESSION AND PROPERTY TO WHICH IT IS NOT.  FN11  SEE 8
WIGMORE ON EVIDENCE (3D ED.)  SEC.  2259C.  THE DISTINCTION HAS HAD
IMPORTANT REPERCUSSIONS IN THE LAW, BEYOND THAT INDICATED BY WILSON V.
UNITED STATES, SUPRA.  FOR AN OWNER OF PROPERTY WHO SEEKS TO TAKE IT
FROM ONE WHO IS UNLAWFULLY IN POSSESSION HAS LONG BEEN RECOGNIZED TO
HAVE GREATER LEEWAY THAN HE WOULD HAVE BUT FOR HIS RIGHT TO
POSSESSION.  THE CLAIM OF OWNERSHIP WILL EVEN JUSTIFY A TRESPASS AND
WARRANT STEPS OTHERWISE UNLAWFUL.  RICHARDSON V. ANTHONY, 12 VT. 273;
MADDEN V. BROWN, 8 APP. DIV. 454, 40 N.Y.S. 714; STATE V. DOOLEY, 121
MO. 591, 26 S.W. 558. 

WE DO NOT SUGGEST THAT OFFICERS SEEKING TO RECLAIM GOVERNMENT
PROPERTY MAY PROCEED LAWLESSLY AND SUBJECT TO NO RESTRAINTS.  NOR DO WE
SUGGEST THAT THE RIGHT TO INSPECT UNDER THE REGULATIONS SUBJECTS A
DEALER TO A GENERAL SEARCH OF HIS PAPERS FOR THE PURPOSE OF LEARNING
WHETHER HE HAS ANY COUPONS SUBJECT TO INSPECTION AND SEIZURE.  THE
NATURE OF THE COUPONS IS IMPORTANT HERE MERELY AS INDICATING THAT THE
OFFICERS DID NOT EXCEED THE PERMISSIBLE LIMITS OF PERSUASION IN
OBTAINING THEM. 

THEY APPEARED ON THE PREMISES DURING BUSINESS HOURS.  THEY HAD OCULAR
EVIDENCE THAT A MISDEMEANOR HAD BEEN COMMITTED, A CRIME TO WHICH
PETITIONER WAS AN AIDER OR ABETTER,  FN12  SINCE, ACCORDING TO THE
ATTENDANT, SHE MADE THE ILLEGAL SALES PURSUANT TO PETITIONER'S
INSTRUCTIONS.  SINCE SALES WERE BEING MADE WITHOUT RECEIPT OF COUPONS
FROM CUSTOMERS, IT WAS FAIR TO ASSUME (UNLESS, AS WAS AT NO TIME
SUGGESTED, THE BUSINESS WAS BEING LIQUIDATED) THAT PETITIONER SOMEWHERE
HAD A SUPPLY OF COUPONS ADEQUATE TO REPLENISH HIS STORAGE TANKS.  THE
INSPECTION WHICH WAS MADE WAS AN INSPECTION OF THE TANKS ATTACHED TO
THE PUMPS.  AND THE SEARCH WAS OF THE OFFICE ADJACENT TO THE PUMPS -
THE PLACE WHERE PETITIONER TRANSACTED HIS BUSINESS.  MOREOVER, THE
OFFICERS DEMANDED THE COUPONS ON THE BASIS THAT THEY WERE PROPERTY OF
THE GOVERNMENT AND THAT PETITIONER WAS MERELY THE CUSTODIAN OF THEM. 
AND THERE WAS NO GENERAL, EXPLORATORY SEARCH.  ONLY THE CONTRABAND
COUPONS WERE DEMANDED; ONLY COUPONS WERE TAKEN. 

THESE FACTS DISTINGUISHED THIS CASE FROM SUCH CASES AS AMOS V. UNITED
STATES, 255 U.S. 313, WHERE OFFICERS WITHOUT A SEARCH WARRANT SWOOP
DOWN ON A PRIVATE RESIDENCE, OBTAIN ADMISSION THROUGH THE EXERTION OF
OFFICIAL PRESSURE, AND SEIZE PRIVATE PROPERTY.  THE FILLING STATION WAS
A PLACE OF BUSINESS, NOT A PRIVATE RESIDENCE.  THE OFFICERS' CLAIM TO
THE PROPERTY WAS ONE OF RIGHT.  FOR THE COUPONS WHICH THEY DEMANDED TO
SEE WERE GOVERNMENT PROPERTY.  AND THE DEMAND WAS MADE DURING BUSINESS
HOURS.  WHATEVER MAY BE THE LIMITS OF INSPECTION UNDER THE REGULATIONS,
LAW ENFORCEMENT IS NOT SO IMPOTENT AS TO REQUIRE OFFICERS, WHO HAVE THE
RIGHT TO INSPECT A PLACE OF BUSINESS, TO STAND MUTE WHEN SUCH CLEAR
EVIDENCE OF CRIMINAL ACTIVITY IS KNOWN TO THEM. 

WHERE THE OFFICERS SEEK TO INSPECT PUBLIC DOCUMENTS AT THE PLACE OF
BUSINESS WHERE THEY ARE REQUIRED TO BE KEPT, PERMISSIBLE LIMITS OF
PERSUASION ARE NOT SO NARROW AS WHERE PRIVATE PAPERS ARE SOUGHT.  THE
DEMAND IS ONE OF RIGHT.  WHEN THE CUSTODIAN IS PERSUADED BY ARGUMENT
THAT IT IS HIS DUTY TO SURRENDER THEM AND HE HANDS THEM OVER, DURESS
AND COERCION WILL NOT BE SO READILY IMPLIED AS WHERE PRIVATE PAPERS ARE
INVOLVED.  THE CUSTODIAN IN THIS SITUATION IS NOT PROTECTED AGAINST THE
PRODUCTION OF INCRIMINATING DOCUMENTS.  WILSON V. UNITED STATES, SUPRA.
THE STRICT TEST OF CONSENT, DESIGNED TO PROTECT AN ACCUSED AGAINST
PRODUCTION OF INCRIMINATING EVIDENCE, HAS NO PLACE HERE.  THE RIGHT OF
PRIVACY, OF COURSE, REMAINS.  BUT, AS WE HAVE SAID, THE FILLING STATION
WAS A PLACE OF BUSINESS, NOT A PRIVATE RESIDENCE.  THE RIGHT TO INSPECT
EXISTED.  AND WHERE ONE IS SEEKING TO RECLAIM HIS PROPERTY WHICH IS
UNLAWFULLY IN THE POSSESSION OF ANOTHER, THE NORMAL RESTRAINTS AGAINST
INTRUSION ON ONE'S PRIVACY, AS WE HAVE SEEN, ARE RELAXED.  THE DISTRICT
COURT FOUND, AFTER HEARING THE WITNESSES, THAT PETITIONER CONSENTED -
THAT ALTHOUGH HE AT FIRST REFUSED TO TURN THE COUPONS OVER, HE SOON WAS
PERSUADED TO DO SO AND THAT FORCE OR THREAT OF FORCE WAS NOT EMPLOYED
TO PERSUADE HIM.  ACCORDING TO THE DISTRICT COURT, THE OFFICERS
"PERSUADED HIM THAT IT WOULD BE A BETTER THING FOR HIM TO PERMIT THEM
TO EXAMINE" THE COUPONS; "THEY TALKED HIM INTO IT."  WE CANNOT SAY AS A
MATTER OF LAW THAT THAT FINDING WAS ERRONEOUS.  THE PUBLIC CHARACTER OF
THE PROPERTY, THE FACT THAT THE DEMAND WAS MADE DURING BUSINESS HOURS
AT THE PLACE OF BUSINESS WHERE THE COUPONS WERE REQUIRED TO BE KEPT,
THE EXISTENCE OF THE RIGHT TO INSPECT, THE NATURE OF THE REQUEST, THE
FACT THAT THE INITIAL REFUSAL TO TURN THE COUPONS OVER WAS SOON
FOLLOWED BY ACQUIESCENCE IN THE DEMAND - THESE CIRCUMSTANCES ALL
SUPPORT THE CONCLUSION OF THE DISTRICT COURT.  WE ACCORDINGLY AFFIRM
THE JUDGMENT BELOW WITHOUT REACHING THE QUESTION WHETHER BUT FOR THAT
CONSENT THE SEARCH AND SEIZURE INCIDENTAL TO THE ARREST WERE
REASONABLE.  AFFIRMED. 

FN1  THE INFORMATION CHARGED A VIOLATION OF SEC. 2(A) OF THE ACT OF
JUNE 28, 1940, 54 STAT. 676, AS AMENDED BY THE ACT OF MAY 31, 1941, 55
STAT. 236 AND BY TITLE III, SEC. 301 OF THE SECOND WAR POWERS ACT OF
MARCH 27, 1942, 56 STAT. 177, 50 U.S.C. APP., SUPP. IV SEC. 633.  SEC.
2(A) PROVIDES IN PART: 

"(2)  ...  WHENEVER THE PRESIDENT IS SATISFIED THAT THE FULFILLMENT
OF REQUIREMENTS FOR THE DEFENSE OF THE UNITED STATES WILL RESULT IN A
SHORTAGE IN THE SUPPLY OF ANY MATERIAL OR OF ANY FACILITIES FOR DEFENSE
OR FOR PRIVATE ACCOUNT OR FOR EXPORT, THE PRESIDENT MAY ALLOCATE SUCH
MATERIAL OR FACILITIES IN SUCH MANNER, UPON SUCH CONDITIONS AND TO SUCH
EXTENT AS HE SHALL DEEM NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST
AND TO PROMOTE THE NATIONAL DEFENSE. 

"(3)  THE PRESIDENT SHALL BE ENTITLED TO OBTAIN SUCH INFORMATION
FROM, REQUIRE SUCH REPORTS AND THE KEEPING OF SUCH RECORDS BY, MAKE
SUCH INSPECTION OF THE BOOKS, RECORDS, AND OTHER WRITINGS, PREMISES OR
PROPERTY OF, ANY PERSON  ..., AND MAKE SUCH INVESTIGATIONS, AS MAY BE
NECESSARY OR APPROPRIATE, IN HIS DISCRETION, TO THE ENFORCEMENT OR
ADMINISTRATION OF THE PROVISIONS OF THIS SUBSECTION (A). 

     .         .         .         .         . 

"(5)  ANY PERSON WHO WILLFULLY PERFORMS ANY ACT PROHIBITED, OR
WILLFULLY FAILS TO PERFORM ANY ACT REQUIRED BY, ANY PROVISION OF THIS
SUBSECTION (A) OR ANY RULE, REGULATION, OR ORDER THEREUNDER, WHETHER
HERETOFORE OR HEREAFTER ISSUED, SHALL BE GUILTY OF A MISDEMEANOR, AND
SHALL, UPON CONVICTION, BE FINED NOT MORE THAN $10,000 OR IMPRISONED
FOR NOT MORE THAN ONE YEAR, OR BOTH." 

THE OFFICE OF PRICE ADMINISTRATION, TO WHICH THAT POWER HAD BEEN
DELEGATED, ISSUED RATION ORDERS FOR GASOLINE.  RATION ORDER NO. 5C, AS
IT READ ON JUNE 20, 1944(8 FED. REG. 16423), PROVIDED IN PART AS
FOLLOWS: 

SEC. 1394.8177(C):  "NO PERSON SHALL HAVE IN HIS POSSESSION ANY
GASOLINE DEPOSIT CERTIFICATE, FOLDER, OR ANY COUPON BOOK, INVENTORY OR
OTHER COUPON (WHETHER OR NOT SUCH BOOK WAS ISSUED AS A RATION BOOK AND
WHETHER OR NOT SUCH COUPON WAS ISSUED AS A RATION OR AS PART OF A
RATION BOOK) OR OTHER EVIDENCE, OR ANY IDENTIFYING FOLDER, EXCEPT THE
PERSON, OR THE AGENT OF THE PERSON, TO WHOM SUCH BOOK, COUPON,
CERTIFICATE OR FOLDER WAS ISSUED OR BY WHOM IT WAS ACQUIRED IN
ACCORDANCE WITH THE PROVISIONS OF RATION BOOK NO. 5C." 

SEC. 1394.8217(A):  "EVERY DEALER AND INTERMEDIATE DISTRIBUTOR SHALL
BE ACCOUNTABLE FOR ALL GASOLINE, RATION CREDITS, GASOLINE DEPOSIT
CERTIFICATES, COUPONS AND OTHER EVIDENCES RECEIVED BY HIM.  GASOLINE
DEPOSIT CERTIFICATES, COUPONS AND OTHER EVIDENCES RECEIVED AT OR FOR A
PLACE OF BUSINESS SHALL BE, AT ALL TIMES WHEN THE DEALER OR DISTRIBUTOR
IS OPEN TO TRANSACT BUSINESS, RETAINED BY HIM AT THE PLACE OF BUSINESS
FOR WHICH THEY WERE RECEIVED, OR DEPOSITED IN A RATION BANK ACCOUNT
MAINTAINED FOR THAT PLACE OF BUSINESS, UNTIL SUCH TIME AS THEY ARE
SURRENDERED TO A DEALER OR DISTRIBUTOR IN EXCHANGE FOR GASOLINE, OR
OTHERWISE SURRENDERED PURSUANT TO RATION ORDER NO. 5C.  THE AGGREGATE
GALLONAGE VALUE OF GASOLINE DEPOSIT CERTIFICATES, COUPONS AND OTHER
EVIDENCES ON HAND OR ON DEPOSIT FOR EACH PLACE OF BUSINESS OF A DEALER
OR INTERMEDIATE DISTRIBUTOR, SHALL, AT ALL TIMES, BE EQUAL TO, BUT NOT
IN EXCESS OF, THE NUMBER OF GALLONS OF GASOLINE WHICH WOULD BE REQUIRED
TO FILL THE STORAGE CAPACITY OF SUCH PLACE OF BUSINESS, AS SHOWN BY THE
CURRENT CERTIFICATE OF REGISTRATION,  ..."  8 FED. REG. 15981. 

FN2  SELLING GASOLINE WITHOUT RECEIPT OF RATION COUPONS, SELLING
GASOLINE IN EXCESS OF THE CEILING PRICE, OR UNLAWFULLY POSSESSING
RATION COUPONS IS A MISDEMEANOR.  SEE SEC. 2(A), SUPRA, NOTE 1.  A
FELONY IS AN OFFENSE PUNISHED BY DEATH OR IMPRISONMENT FOR A TERM
EXCEEDING ONE YEAR.  CRIMINAL CODE SEC. 335, 18 U.S.C. SEC. 541. 

FN3  THE FILLING STATION WAS LOCATED IN A BUILDING ABOUT 250 FEET
LONG.  ONE SET OF PUMPS WAS NEAR THE ENTRANCE TO ONE STREET; THE OTHER
SET WAS AT THE OPPOSITE END NEAR THE ENTRANCE TO ANOTHER STREET.  THE
OFFICE WAS LOCATED ABOUT HALF-WAY BETWEEN THE TWO SETS OF PUMPS. 

FN4  SEE RATION ORDER NO. 5C.  SUPRA, NOTE 1, SECS. 1394.8152,
1394.8153. 

FN5  ID., SEC. 1394.8207. 

FN6 ID., SEC. 1394.8217(A), SUPRA. 

FN7  ID., SEC. 1394.8177(C), SUPRA, NOTE 1. 

FN8  ID., SEC. 1394.8227(B) PROVIDED THAT ALL "GASOLINE DEPOSIT
CERTIFICATES AND ALL COUPON BOOKS, COUPONS, AND OTHER EVIDENCES ARE,
AND WHEN ISSUED SHALL REMAIN, THE PROPERTY OF THE OFFICE OF PRICE
ADMINISTRATION." 

FN9  ID., SEC. 1394.8104(A): 

"ALL COUPON BOOKS, BULK COUPONS, INVENTORY COUPONS, OTHER EVIDENCES
...  ARE, AND WHEN ISSUED SHALL REMAIN, THE PROPERTY OF THE OFFICE OF
PRICE ADMINISTRATION.  THE OFFICE OF PRICE ADMINISTRATION MAY REFUSE TO
ISSUE, AND MAY SUSPEND, CANCEL, REVOKE, OR RECALL ANY RATION AND MAY
REQUIRE THE SURRENDER AND RETURN OF ANY COUPON BOOK, BULK COUPON,
INVENTORY COUPONS OR OTHER EVIDENCES  ...  DURING SUSPENSION OR
PURSUANT TO REVOCATION OR CANCELLATION, WHENEVER IT DEEMS IT TO BE IN
THE PUBLIC INTEREST TO DO SO." 

FN10  ID., SEC. 1394.8227(B) PROVIDED IN PART: 

"UPON DEMAND MADE BY ANY INVESTIGATOR OF THE OFFICE OF PRICE
ADMINISTRATION OR BY ANY POLICE OFFICER, CONSTABLE, OR OTHER LAW
ENFORCEMENT OFFICER OF THE UNITED STATES OR OF ANY STATE, COUNTY, OR
LOCAL GOVERNMENT, EVERY PERSON SHALL PRODUCE FOR INSPECTION ANY TIRE
INSPECTION RECORD AND GASOLINE DEPOSIT CERTIFICATE AND ANY GASOLINE
COUPON BOOKS, COUPONS, AND OTHER EVIDENCES IN HIS POSSESSION OR
CONTROL, WHETHER VALID, INVALID, VOID OR EXPIRED  ...  IN ACCORDANCE
WITH RATION ORDER NO. 5C.  INVESTIGATORS OF THE OFFICE OF PRICE
ADMINISTRATION AND ALL POLICE OFFICERS, CONSTABLES AND OTHER LAW
ENFORCEMENT OFFICERS OF THE UNITED STATES, OR OF ANY STATE, COUNTY OR
LOCAL GOVERNMENT ARE AUTHORIZED TO MAKE SUCH INQUIRIES OF ANY PERSON AS
MAY BE PERTINENT TO DETERMINE WHETHER A VIOLATION OF RATION ORDER NO.
5C HAS BEEN OR IS BEING COMMITTED, AND ARE AUTHORIZED TO RECEIVE THE
SURRENDER OF ALL GASOLINE DEPOSIT CERTIFICATES, GASOLINE COUPON BOOKS,
COUPONS AND OTHER EVIDENCES ACQUIRED BY ANY PERSON OTHERWISE THAN IN
ACCORDANCE WITH RATION ORDER NO. 5C, WHETHER VALID, INVALID, VOID OR
EXPIRED." 

AS TO THE POWER OF INSPECTION GIVEN BY THE ACT OF JUNE 28, 1940, SEE
SEC. 2(A)(3), SUPRA, NOTE 1. 

FN11  THIS DISTINCTION WAS NOTED IN ANOTHER CONNECTION IN BOYD V.
UNITED STATES, SUPRA, PP. 623-624, WHERE THE COURT SAID: 

"THE SEARCH FOR AND SEIZURE OF STOLEN OR FORFEITED GOODS, OR GOODS
LIABLE TO DUTIES AND CONCEALED TO AVOID THE PAYMENT THEREOF, ARE
TOTALLY DIFFERENT THINGS FROM A SEARCH FOR AND SEIZURE OF A MAN'S
PRIVATE BOOKS AND PAPERS FOR THE PURPOSE OF OBTAINING INFORMATION
THEREIN CONTAINED, OR OF USING THEM AS EVIDENCE AGAINST HIM.  THE TWO
THINGS DIFFER TOTO COELO.  IN THE ONE CASE, THE GOVERNMENT IS ENTITLED
TO THE POSSESSION OF THE PROPERTY; IN THE OTHER IT IS NOT.  THE SEIZURE
OF STOLEN GOODS IS AUTHORIZED BY THE COMMON LAW; AND THE SEIZURE OF
GOODS FORFEITED FOR A BREACH OF THE REVENUE LAWS, OR CONCEALED TO AVOID
THE DUTIES PAYABLE ON THEM, HAS BEEN AUTHORIZED BY ENGLISH STATUTES FOR
AT LEAST TWO CENTURIES PAST; AND THE LIKE SEIZURES HAVE BEEN AUTHORIZED
BY OUR OWN REVENUE ACTS FROM THE COMMENCEMENT OF THE GOVERNMENT.  THE
FIRST STATUTE PASSED BY CONGRESS TO REGULATE THE COLLECTION OF DUTIES,
THE ACT OF JULY 31, 1789, 1 STAT. 29, 43, CONTAINS PROVISIONS TO THIS
EFFECT.  AS THIS ACT WAS PASSED BY THE SAME CONGRESS WHICH PROPOSED FOR
ADOPTION THE ORIGINAL AMENDMENTS TO THE CONSTITUTION, IT IS CLEAR THAT
THE MEMBERS OF THAT BODY DID NOT REGARD SEARCHES AND SEIZURES OF THIS
KIND AS 'UNREASONABLE,' AND THEY ARE NOT EMBRACED WITHIN THE
PROHIBITION OF THE AMENDMENT.  SO, ALSO, THE SUPERVISION AUTHORIZED TO
BE EXERCISED BY OFFICERS OF THE REVENUE OVER THE MANUFACTURE OR CUSTODY
OF EXCISABLE ARTICLES, AND THE ENTRIES THEREOF IN BOOKS REQUIRED BY LAW
TO BE KEPT FOR THEIR INSPECTION, ARE NECESSARILY EXCEPTED OUT OF THE
CATEGORY OF UNREASONABLE SEARCHES AND SEIZURES.  SO, ALSO, THE LAWS
WHICH PROVIDE FOR THE SEARCH AND SEIZURE OF ARTICLES AND THINGS WHICH
IT IS UNLAWFUL FOR A PERSON TO HAVE IN HIS POSSESSION FOR THE PURPOSE
OF ISSUE OR DISPOSITION, SUCH AS COUNTERFEIT COIN, LOTTERY TICKETS,
IMPLEMENTS OF GAMBLING, &C., ARE NOT WITHIN THIS CATEGORY. 
COMMONWEALTH V. DANA, 2 MET.  (MASS.)  329." 

AND SEE TENNESSEE V. HALL, 164 TENN. 548, 51 S.W.2D 851; STATE V.
KNIGHT, 34 N.M. 217, 279 P. 947; STATE V. BENNETT, 315 MO. 1267, 288
S.W. 50. 

FN12  CRIMINAL CODE SEC. 332, 18 U.S.C. SEC. 550, PROVIDES: 

"WHOEVER DIRECTLY COMMITS ANY ACT CONSTITUTING AN OFFENSE DEFINED IN
ANY LAW OF THE UNITED STATES, OR AIDS, ABETS, COUNSELS, COMMANDS,
INDUCES, OR PROCURES ITS COMMISSION, IS A PRINCIPAL." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE MURPHY CONCURS,
DISSENTING. 

IN ITS SURFACE ASPECTS THIS CASE CONCERNS MERELY A SQUALID EFFORT TO
EVADE THE WARTIME SYSTEM OF GASOLINE RATIONING.  BUT IT SHOULD NOT BE
DISPOSED OF IN THAT PERSPECTIVE.  IT IS NOT THE FIRST PETTY LITTLE CASE
TO PUT TO THE TEST RESPECT FOR PRINCIPLES WHICH THE FOUNDERS OF THIS
NATION DEEMED ESSENTIAL FOR A FREE SOCIETY.  FOR THE CASE IS DIRECTLY
RELATED TO ONE OF THE GREAT CHAPTERS IN THE HISTORIC PROCESS WHEREBY
CIVIL LIBERTY WAS ACHIEVED AND CONSTITUTIONALLY PROTECTED AGAINST
FUTURE INROADS. 

THE COURT'S DECISION, AS I SEE IT, PRESENTS THIS ISSUE:  MAY PAPERS
WHICH AN ACCUSED COULD NOT BE COMPELLED TO PRODUCE EVEN BY A JUDICIAL
PROCESS OF A SEARCH WARRANT BE TAKEN FROM HIM AGAINST HIS WILL BE
OFFICERS OF THE LAW WITHOUT SUCH JUDICIAL PROCESS FOR USE AS EVIDENCE
IN A CRIMINAL PROSECUTION AGAINST HIM?  JUDICIAL PROCESS MAY NOT COMPEL
THE PRODUCTION OF DOCUMENTS EITHER BECAUSE OF THE PROTECTION OF THE
FIFTH AMENDMENT AGAINST SELFCRIMINATION, OR, AS IN THIS CASE, BECAUSE
THE AUTHORIZATION BY CONGRESS OF SEARCH WARRANTS IS WITHHELD IN A
SITUATION LIKE THE PRESENT.  FN1  THE COURT APPARENTLY RULES THAT
BECAUSE THE GASOLINE BUSINESS WAS SUBJECT TO REGULATION, THE SEARCH AND
SEIZURE OF SUCH DOCUMENTS WITHOUT A WARRANT IS NOT AN UNREASONABLE
SEARCH AND SEIZURE CONDEMNED BY THE FOURTH AMENDMENT.  TO HOLD THAT THE
SEARCH IN THIS CASE WAS LEGAL IS TO HOLD THAT A SEARCH WHICH COULD NOT
BE JUSTIFIED UNDER A SEARCH WARRANT IS LAWFUL WITHOUT IT. I CANNOT
ESCAPE THE CONVICTION THAT SUCH A VIEW OF THE FOURTH AMENDMENT MAKES A
TRAVESTY OF IT AND OF THE LONG COURSE OF LEGISLATION IN WHICH CONGRESS
APPLIED THAT AMENDMENT. 

WHERE SEARCH IS MADE UNDER THE AUTHORITY OF A WARRANT ISSUED FROM A
JUDICIAL SOURCE, THE SCOPE OF THE SEARCH MUST BE CONFINED TO THE
SPECIFIC AUTHORIZATION OF THE WARRANT.  IT CANNOT BE THAT THE
CONSTITUTION MEANT TO MAKE IT LEGALLY ADVANTAGEOUS NOT TO HAVE A
WARRANT, SO THAT THE POLICE MAY ROAM FREELY AND HAVE THE COURTS
RETROSPECTIVELY HOLD THAT THE SEARCH THAT WAS MADE WAS "REASONABLE,"
REASONABLENESS BEING JUDGED FROM THE POINT OF VIEW OF OBTAINING
RELEVANT EVIDENCE.  I HAD SUPPOSED THAT THAT WAS PRECISELY WHAT THE
FOURTH AMENDMENT WAS MEANT TO STOP.  "THE GOVERNMENT COULD DESIRE ITS
POSSESSION ONLY TO USE IT AS EVIDENCE AGAINST THE DEFENDANT AND TO
SEARCH FOR AND SEIZE IT FOR SUCH PURPOSE WAS UNLAWFUL."  GOULED V.
UNITED STATES, 255 U.S. 298, 310. 

THERE IS INDEED A DIFFERENCE BETWEEN PRIVATE PAPERS AND PAPERS HAVING
ALSO A PUBLIC BEARING.  PRIVATE PAPERS OF AN ACCUSED CANNOT BE SEIZED
EVEN THROUGH LEGAL PROCESS BECAUSE THEIR USE WOULD VIOLATE THE
PROHIBITION OF THE FIFTH AMENDMENT AGAINST SELF-CRIMINATION.  SO-CALLED
PUBLIC PAPERS - PAPERS IN WHICH THE PUBLIC HAS AN INTEREST OTHER THAN
THAT WHICH THEY MAY SERVE AS EVIDENCE IN A CASE - MAY BE SEIZED, BUT
LIKE ALL OTHER THINGS IN AN INDIVIDUAL'S POSSESSION THEY CAN BE SEIZED
ONLY UPON A PROPERLY SAFEGUARDED SEARCH.  THE AMENABILITY OF CORPORATE
PAPERS TO TESTIMONIAL COMPULSION MEANS THAT A CORPORATION, BECAUSE IT
IS A CORPORATION, CANNOT MAKE CLAIM TO THE PRIVILEGE OF SELF
CRIMINATION.  NOR CAN THE CUSTODIAN OF CORPORATE BOOKS IMMUNIZE THEM
AGAINST THEIR PRODUCTION IN COURT BECAUSE THEY MAY ALSO CARRY TESTIMONY
AGAINST HIM.  THE FOURTH AMENDMENT DOES NOT GIVE FREEDOM FROM
TESTIMONIAL COMPULSION.  SUBJECT TO FAMILIAR QUALIFICATIONS EVERY MAN
IS UNDER OBLIGATION TO GIVE TESTIMONY.  BUT THAT OBLIGATION CAN BE
EXACTED ONLY UNDER JUDICIAL SANCTIONS WHICH ARE DEEMED PRECIOUS TO
ANGLOAMERICAN CIVILIZATION.  MERELY BECAUSE THERE MAY BE THE DUTY TO
MAKE DOCUMENTS AVAILABLE FOR LITIGATION DOES NOT MEAN THAT POLICE
OFFICERS MAY FORCIBLY OR FRAUDULENTLY OBTAIN THEM.  THIS PROTECTION OF
THE RIGHT TO BE LET ALONE EXCEPT UNDER RESPONSIBLE JUDICIAL COMPULSION
IS PRECISELY WHAT THE FOURTH AMENDMENT MEANT TO EXPRESS AND TO
SAFEGUARD.    AN EVEN MORE FUNDAMENTAL ISSUE LURKS IN THE COURT'S
OPINION IF A CASUAL BUT EXPLICIT PHRASE ABOUT THE LOCUS OF THE SEARCH
AND SEIZURE AS "A PLACE OF BUSINESS, NOT A PRIVATE RESIDENCE" IS
INTENDED TO CARRY RELEVANT LEGAL IMPLICATIONS.  IF THIS IS AN INDIRECT
WAY OF SAYING THAT THE FOURTH AMENDMENT ONLY SECURES HOMES AGAINST
UNREASONABLE SEARCHES AND SEIZURES BUT NOT OFFICES - PRIVATE OFFICES OF
PHYSICIANS AND LAWYERS, OF TRADE UNIONS AND OTHER ORGANIZATIONS, OF
BUSINESS AND SCIENTIFIC ENTERPRISES - THEN INDEED IT WOULD CONSTITUTE A
SUDDEN AND DRASTIC BREAK WITH THE WHOLE HISTORY OF THE FOURTH AMENDMENT
AND ITS APPLICATIONS BY THIS COURT.  SEE OLMSTEAD V. UNITED STATES, 277
U.S. 438, 477, AND CASES CITED IN FOOTNOTES 5, 6, AND 7.  I CANNOT
BELIEVE THAT A VAST AREA OF CIVIL LIBERTIES WAS THUS MEANT TO BE WIPED
OUT BY A FEW WORDS, WITHOUT PRIOR ARGUMENT OR CONSIDERATION. 

THE COURSE OF DECISION IN THIS COURT HAS THUS FAR JEALOUSLY ENFORCED
THE PRINCIPLE OF A FREE SOCIETY SECURED BY THE PROHIBITION OF
UNREASONABLE SEARCHES AND SEIZURES.  ITS SAFEGUARDS ARE NOT TO BE WORN
AWAY BY A PROCESS OF DEVITALIZING INTERPRETATION.  THE APPROVAL GIVEN
TODAY TO WHAT WAS DONE BY ARRESTING OFFICERS IN THIS CASE INDICATES
THAT WE ARE IN DANGER OF FORGETTING THAT THE BILL OF RIGHTS REFLECTS
EXPERIENCE WITH POLICE EXCESSES.  IT IS NOT ONLY UNDER NAZI RULE THAT
POLICE EXCESSES ARE INIMICAL TO FREEDOM.  IT IS EASY TO MAKE LIGHT OF
INSISTENCE ON SCRUPULOUS REGARD FOR THE SAFEGUARDS OF CIVIL LIBERTIES
WHEN INVOKED ON BEHALF OF THE UNWORTHY.  IT IS TOO EASY.  HISTORY BEARS
TESTIMONY THAT BY SUCH DISREGARD ARE THE RIGHTS OF LIBERTY
EXTINGUISHED, HEEDLESSLY AT FIRST, THEN STEALTHILY, AND BRAZENLY IN THE
END. 

THE ISSUE IN THIS CASE IS PART OF A LONG HISTORIC PROCESS AND PROPER
CONSIDERATION OF THE PROBLEM BEFORE US COMPELS RATHER EXTENDED
DISCUSSION.  THESE ARE THE CIRCUMSTANCES THAT GIVE RISE TO OUR
PROBLEM.  FOR SOME TIME OPERATIONS OF THE GASOLINE STATION OWNED BY
DAVIS UNDER A CORPORATE FORM HAD BEEN SUSPECT BY THE OFFICE OF PRICE
ADMINISTRATION.  ON THE DAY OF THE QUESTIONED SEIZURE, THREE O.P.A.
INVESTIGATORS AND TWO NEW YORK CITY DETECTIVES KEPT WATCH ON THE
STATION FOR SEVERAL HOURS.  ONE OF THE O.P.A. MEN DROVE HIS CAR TO THE
PUMPS FOR GAS.  AFTER THE ATTENDANT HAD FILLED HIS TANK, HE TOLD HER,
WHEN ASKED FOR COUPONS, THAT HE HAD NONE.  SHE THEN DEMANDED A HIGHER
PRICE FOR THE GASOLINE WHICH HE PAID WITH A MARKED FIVE DOLLAR BILL. 
LATER, ANOTHER INVESTIGATOR REPEATED THIS PERFORMANCE.  THEN ALL FIVE
OFFICERS WENT INTO THE STATION, NOTIFIED THE ATTENDANT THAT SHE WAS
UNDER ARREST, AND REQUESTED AND OBTAINED FROM HER THE TWO MARKED BILLS
AND A CARD ON WHICH SHE HAD RECORDED THE SALES.  WHILE THE GIRL'S
QUESTIONING WAS STILL PROCEEDING, DAVIS DROVE INTO THE STATION.  HIS
CAR WAS IMMEDIATELY SEARCHED AND HE WAS CHARGED WITH SELLING GAS OVER
CEILING PRICES AND WITHOUT COUPONS.  THESE WERE CHARGES OF
MISDEMEANORS.  THE OFFICERS THEN DEMANDED AND RECEIVED FROM DAVIS KEYS
FOR THE LOCKED BOXES ON THE PUMPS INTENDED FOR THE DEPOSIT OF COUPONS
RECEIVED FOR GAS SOLD.  WHILE SOME OF THE OFFICERS WERE ENGAGED IN
CHECKING THE DISCREPANCY BETWEEN THE AMOUNT OF GAS IN STORAGE TANKS AND
THE COUPONS IN THE BOXES, DAVIS WAS TAKEN BY TWO OF THE AGENTS TO AN
OUTER ROOM IN HIS OFFICE.  THEY DEMANDED FROM HIM GAS COUPONS WHICH HE
CLAIMED TO HAVE IN SUFFICIENT NUMBERS TO MAKE UP THE DEFICIENCIES IN
THE LOCKED BOXES.  HE STUBBORNLY REFUSED DESPITE THE INSISTENCE OF ONE
OF THE OFFICERS THAT "HE WOULD HAVE TO OPEN THAT DOOR" TO HIS PRIVATE
OFFICE.  FINALLY, WHEN ANOTHER OFFICER FLASHED A LIGHT INTO THE OFFICE
FROM AN OUTSIDE WINDOW AND EVINCED AN INTENTION TO FORCE THE WINDOW,
DAVIS UNLOCKED THE DOOR.  THEREUPON HE TOOK SOME ENVELOPES FROM A
FILING CABINET AND HANDED THEM TO THE AGENTS.  THESE ENVELOPES
CONTAINED THE STAMPS WHICH FORMED THE BASIS OF THE PROSECUTION.  HE WAS
THEN TAKEN TO O.P.A. HEADQUARTERS AND QUESTIONED, BUT EVENTUALLY
ALLOWED TO GO.  SEVERAL WEEKS LATER HE WAS TAKEN INTO CUSTODY AND THEN
CHARGED WITH THE ILLEGAL POSSESSION OF GASOLINE RATION DOCUMENTS.  THIS
CHARGE ALSO IS A MISDEMEANOR. 

THE PETITIONER MADE TIMELY MOTIONS FOR THE SUPPRESSION OF THE
EVIDENCE, SEE NARDONE V. UNITED STATES, 308 U.S. 338, 341-42, CLAIMING
THAT THEY WERE ILLEGALLY SEIZED AND BARRED AS EVIDENCE AGAINST HIM. 
THE TRIAL COURT DENIED THESE MOTIONS ON THE GROUND THAT DAVIS HAD
VOLUNTARILY TURNED THE STAMPS OVER TO THE OFFICERS.  THE CIRCUIT COURT
OF APPEALS SUSTAINED THE CONVICTION BUT IT DID NOT ACCEPT THE DISTRICT
COURT'S VIEW THAT DAVIS HAD SURRENDERED THE STAMPS OF HIS OWN FREE
WILL.  WHAT THE CIRCUIT COURT OF APPEALS THOUGHT ABOUT THE MATTER IS
BEST EXPRESSED IN ITS OWN LANGUAGE: "THE JUDGE FOUND THAT DAVIS'
CONSENT WAS 'VOLUNTARILY' GIVEN, AND FOR THAT REASON DENIED THE MOTION
TO SUPPRESS THE EVIDENCE.  WE NEED NOT DECIDE THAT THAT FINDING IS
WRONG, FOR WE CAN DISPOSE OF THE CASE UPON OTHER GROUNDS; BUT WE MUST
OWN TO SOME DOUBT WHETHER A CONSENT OBTAINED UNDER SUCH CIRCUMSTANCES
SHOULD PROPERLY BE REGARDED AS 'VOLUNTARY.'  DAVIS MUST HAVE KNOWN,
UNDER ARREST AS HE WAS, THAT THE OFFICERS WERE NOT LIKELY TO STAND VERY
LONG UPON CEREMONY, BUT IN ONE WAY OR ANOTHER, WOULD ENTER THE
OFFICE."  151 F.2D 140, 142.  ONE MUST REJECT THE DISTRICT COURT'S
FINDING THAT DAVIS' CONSENT WENT WITH HIS SURRENDER OF THE DOCUMENTS
UNLESS ONE IS TO HOLD THAT EVERY SUBMISSION TO THE IMMINENT EXERTION OF
SUPERIOR FORCE IS CONSENSUAL IF FORCE IS NOT PHYSICALLY APPLIED.  THE
DISTRICT COURT'S FINDING THAT DAVIS VOLUNTARILY SURRENDERED THE
DOCUMENTS IS NOT ONE OF THOSE FINDINGS OF FACTS WHICH APPROPRIATELY
CALLS FOR OUR ACCEPTANCE.  WHEN SUCH A FINDING INVOLVES CONFLICTING
EVIDENCE OR THE CREDIBILITY OF A WITNESS, THE ADVANTAGE OF HAVING SEEN
OR HEARD A WITNESS MAY BE DECISIVE.  BUT HERE THE ISSUE IS NOT AS TO
WHAT TOOK PLACE BUT AS TO THE SIGNIFICANCE OF WHAT TOOK PLACE.  AND
WHEN A DISTRICT COURT'S FINDING OF A SO-CALLED FACT IS AS INTERWOVEN AS
IT IS HERE WITH CONSTITUTIONAL CONSEQUENCES, WE CANNOT ACCEPT A FINDING
WHEREBY THE CONSTITUTIONAL ISSUE IS PREDETERMINED.  WE ARE NOT BOUND BY
FINDINGS THAT OPERATE AS CRYPTIC CONSTITUTIONAL DETERMINATIONS EVEN
WHEN THEY COME HERE, UNLIKE THE PRESENT CASE, SUPPORTED BY BOTH LOWER
COURTS.  SEE UNITED STATES V. APPALACHIAN POWER CO., 311 U.S. 377,
404.  TO SAY THAT A YIELDING TO CONTINUOUS PRESSURE BY ARRESTING
OFFICERS, ACCOMPANIED BY MINATORY MANIFESTATIONS TO RESORT TO SELF
HELP, CONSTITUTES A VOLUNTARY YIELDING, IS TO DISREGARD ORDINARY
EXPERIENCE.  THIS COURT PREFERRED NOT TO DO THAT IN AMOS V. UNITED
STATES, 255 U.S. 313.  WE THERE HELD THAT WHERE OFFICERS STATED THAT
THEY WERE REVENUE OFFICERS AND REQUESTED ADMISSION TO THE PREMISES IN
ORDER TO MAKE A SEARCH, THERE WAS, AS A MATTER OF LAW, "IMPLIED
COERCION."  INASMUCH "AS CONDUCT UNDER DURESS INVOLVES A CHOICE," THE
FOURTH AMENDMENT IS HARDLY TO BE NULLIFIED BY FINDING EVERY SUBMISSION
SHORT OF OVERPOWERING FORCE "VOLUNTARY."  SEE UNION PACIFIC R. CO. V.
PUBLIC SERVICE COMM'N, 248 U.S. 67, 70. 

THIS COURT ALSO ATTRIBUTES VOLUNTARINESS TO DAVIS' SURRENDER OF THE
DOCUMENTS.  BUT IT DOES SO NOT BECAUSE IT FINDS THAT WHAT DAVIS DID WAS
AN EXERCISE OF FREE CHOICE.  IT DOES NOT QUESTION THE DOUBT OF THE
CIRCUIT COURT OF APPEALS WHETHER THE CONSENT OBTAINED FROM DAVIS WAS,
AS A PSYCHOLOGICAL FACT, A VOLUNTARY ACT.  THE COURT DERIVES
VOLUNTARINESS FROM THE FACT THAT WHAT THE OFFICERS COMPELLED DAVIS TO
GIVE UP WERE RATION COUPONS.  BUT, SURELY, THIS IS TO ASSIGN TO
ORDINARY WORDS A PRIVATE, ESOTERIC MEANING.  COMMON USAGE REJECTS SUCH
MEANING OF "VOLUNTARY" AND LAW HAS NOT HERETOFORE INDULGED IT.  IN
CONSIDERING WHETHER EVIDENCE WAS FREELY GIVEN OR COERCED, THE LAW HAS
ALWAYS MEANT BY "VOLUNTARY" WHAT EVERYBODY ELSE MEANS BY IT. TO MAKE
VOLUNTARINESS TURN ON THE NATURE OF THE QUEST, INSTEAD OF ON THE NATURE
OF THE RESPONSE OF THE PERSON IN CONTROL OF THE SOUGHT DOCUMENTS, IS TO
DISTORT FAMILIAR NOTIONS ON THE BASIS OF WHICH THE LAW HAS HERETOFORE
ADJUDGED LEGAL CONSEQUENCES.  THE COURT ACCEPTS THE GOVERNMENT'S
ARGUMENT  FN2  WHICH THE CIRCUIT COURT OF APPEALS REJECTED, AND
REJECTED BECAUSE GRAVELY DISTURBED BY ITS IMPLICATION.  THOUGH
DIFFERENTLY PHRASED, THE ARGUMENT WHICH HAS HERE FOUND FAVOR EVOKED
THIS COMMENT IN THE CONCURRING OPINION OF JUDGE FRANK:  "I ADD A FEW
WORDS ONLY BECAUSE I THINK IT IMPORTANT TO UNDERSCORE OUR REJECTION OF
THE FOLLOWING ARGUMENT ON WHICH THE ASSISTANT UNITED STATES ATTORNEY
CHIEFLY RELIED:  WHENEVER THE GOVERNMENT VALIDLY REGULATES ANY BUSINESS
AND INCLUDES IN ITS REGULATION A VALID REQUIREMENT THAT RECORDS BE KEPT
WHICH SHALL BE OPEN TO OFFICIAL INSPECTION, THEN REFUSAL TO PRODUCE THE
RECORDS FOR SUCH INSPECTION AUTHORIZES THE OFFICERS TO ENTER THE
PREMISES AND SEIZE THE RECORDS.  ONE VARIANT OF THE ARGUMENT WAS THAT
REFUSAL TO PERMIT INSPECTION IN SUCH CIRCUMSTANCES CONSTITUTES, IN
EFFECT, THE LEGAL EQUIVALENT OF CONSENT TO ENTER; ANOTHER VARIANT WAS
THAT, IN SUCH CIRCUMSTANCES, CONDUCT OF THE DEFENDANT MUST BE
INTERPRETED AS CONSENT TO ENTRY ALTHOUGH, IN OTHER CIRCUMSTANCES, THE
VERY SAME CONDUCT WOULD BE REGARDED AS REFUSAL.  IN ONE WAY OR ANOTHER,
THE ASSISTANT UNITED STATES ATTORNEY URGED THAT OBSTRUCTION OF THE
RIGHT OF THE OFFICERS TO INSPECT DEPRIVED THE DEFENDANT OF HIS USUAL
PRIVILEGE TO BE FREE OF UNREASONABLE SEARCH AND SEIZURE."  151 F.2D AT
144. 

OF COURSE THERE IS AN IMPORTANT DIFFERENCE IN THE CONSTITUTIONAL
PROTECTION AFFORDED THEIR POSSESSORS BETWEEN PAPERS EXCLUSIVELY PRIVATE
AND DOCUMENTS HAVING PUBLIC ASPECTS.  CF. WEEKS V. UNITED STATES, 232
U.S. 383, 393-94; GOULED V. UNITED STATES, 255 U.S. 298, 308-309.  BUT
THE ESSENCE OF THE DIFFERENCE IS THAT UNDER APPROPRIATE CIRCUMSTANCES
WHOLLY PRIVATE PAPERS ARE NOT EVEN SUBJECT TO TESTIMONIAL COMPULSION
WHEREAS OTHER PAPERS, ONCE THEY HAVE BEEN LEGALLY OBTAINED, ARE
AVAILABLE AS EVIDENCE.  HAD THE COUPONS IN CONTROVERSY BEEN SECURED BY
A PROPER SEARCH THEY COULD BE USED AGAINST THE DEFENDANT AT THE TRIAL. 
BUT THEIR CHARACTER DOES NOT ELIMINATE THE RESTRICTIONS OF THE FOURTH
AMENDMENT AND SUBJECT THE PERSON IN POSSESSION OF SUCH DOCUMENTS,
AGAINST HIS PROTEST, TO SEARCHES AND SEIZURES OTHERWISE UNWARRANTED. 

THE ACCEPTANCE OF THE GOVERNMENT'S ARGUMENT OPENS AN ALARMING VISTA
OF INROADS UPON THE RIGHT OF PRIVACY.  THIS RIGHT THE FOURTH AMENDMENT
SOUGHT TO PROTECT BY ITS GENERAL INTERDICTION OF POLICE INTRUSION
WITHOUT PRIOR JUDICIAL AUTHORIZATION THROUGH SEARCH WARRANTS ISSUED
"UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND
PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR
THINGS TO BE SEIZED."  AMENDMENT IV.  ONLY THE OTHER DAY EVERY PERSON
NOT IN THE ARMED FORCES HAD IN HIS POSSESSION O.P.A. DOCUMENTS WHICH
TECHNICALLY WERE THE PROPERTY OF THE O.P.A., AND THE SAME SITUATION MAY
COME TO PASS TOMORROW; MOST BUSINESSES IN THE COUNTRY ARE IN POSSESSION
OF DOCUMENTS REQUIRED TO BE KEPT UNDER FEDERAL AND STATE AUTHORITY; AND
THERE IS EVERY PROSPECT THAT THIS NETWORK OF REQUIRED RECORDS WILL BE
EXTENDED.  IT MISCONCEIVES THE ISSUES TO ASSUME THAT THE PROTECTION FOR
PRIVACY HERE URGED WOULD SERVE AS A SHIELD AGAINST SCRUTINY OF THE
RECORDS OF THE GIANT INDUSTRIES OR THE GREAT TRADE UNIONS.  THE FOURTH
AMENDMENT DOES NOT DIFFERENTIATE BETWEEN BIG AND SMALL ENTERPRISE. 
BUT, IN ANY EVENT, WHILE OUR ECONOMY IS EXTENSIVELY CARRIED ON THROUGH
THE CORPORATE FORM, THE LATEST AVAILABLE FIGURES SHOW THAT OF THE
MULTITUDINOUS INCOME-REPORTING CORPORATIONS ONLY ABOUT FIVE PER CENT
HAVE A NET INCOME ABOVE $100,000.  IT CANNOT BE THAT THE HIGHLY PRIZED
CONSTITUTIONAL IMMUNITY FROM POLICE INTRUSION, AS IT AFFECTS ACTIVITIES
THAT PERMEATE OUR NATIONAL LIFE, IS NOW TO BE CURTAILED OR VIEWED WITH
LAXITY. 

THE COURT'S OPINION HAS ONLY ITS OWN REASONING TO SUPPORT IT. NOTHING
THAT THIS COURT HAS EVER DECIDED OR SANCTIONED GIVES IT STRENGTH. 
WILSON V. UNITED STATES, 221 U.S. 361, INVOKED BY THE COURT WAS A VERY
DIFFERENT STORY.  THAT CASE WAS CONCERNED WITH THE DIFFERENCE BETWEEN
THE AMENABILITY OF A CORPORATION TO TESTIMONIAL COMPULSION AND THE
IMMUNITY OF AN INDIVIDUAL, UNDER RELEVANT CIRCUMSTANCES, TO BE FREE
FROM THE DUTY TO GIVE TESTIMONY.  THE CORE OF THE GOVERNMENT'S CLAIM
HERE IS THE RIGHT TO SEIZE DOCUMENTS IN THE ABSENCE OF JUDICIAL
PROCESS.  THE DIFFERENCE BETWEEN DEMANDING DOCUMENTS WITHOUT LEGAL
PROCESS AND SEIZING THEM ON THE BASIS OF SUCH PROCESS, IS THE
DIFFERENCE BETWEEN THE PROTECTION OF CIVIL LIBERTIES AND THEIR
INVASION.  THE DIFFERENCE IS THE ESSENCE OF THE FOURTH AMENDMENT. 

INDEED, SO UNHAPPY WAS THE EXPERIENCE WITH POLICE SEARCH FOR PAPERS
AND ARTICLES "IN HOME OR OFFICE," GOULED V. UNITED STATES, 255 U.S.
298, 308, 309, THAT IT WAS ONCE MAINTAINED THAT NO SEARCH AND SEIZURE
IS VALID.  TO LORD COKE HAS BEEN ATTRIBUTED THE PROPOSITION THAT
WARRANTS COULD NOT BE SECURED EVEN FOR STOLEN PROPERTY.  BUT SEE COKE,
FOURTH INSTITUTE, 176-77.  UNDER EARLY ENGLISH DOCTRINE EVEN SEARCH
WARRANTS BY APPROPRIATE AUTHORITY COULD ISSUE ONLY FOR STOLEN GOODS. 
SEE 2 HALE, PLEAS OF THE CROWN, 113-14, 149-51; 2 GABBETT, CRIMINAL LAW
(1843) 156 ET SEQ.; 1 CHITTY, CRIMINAL LAW (5TH ED., 1847) 64 ET SEQ.;
BARBOUR, CRIMINAL LAW (2D ED., 1852) 499 ET SEQ.; 1 ARCHBOLD, CRIMINAL
PROCEDURE (7TH ED., 1860) 141.  CERTAINLY WARRANTS LACKING STRICT
PARTICULARITY AS TO LOCATION TO BE SEARCHED OR ARTICLES TO BE SEIZED
WERE DEEMED OBNOXIOUS.  IBID.; SEE ALSO 2 HAWKINS, PLEAS OF THE CROWN,
130, 133.  AN ATTEMPT TO EXCEED THESE NARROW LIMITS CALLED FORTH THE
ENDURING JUDGMENT OF LORD CAMDEN, IN ENTICK V. CARRINGTON, 19 HOWELL'S
STATE TRIALS 1029, IN FAVOR OF FREEDOM AGAINST POLICE INTRUSIONS.  AND
WHEN APPEAL TO THE COLONIAL COURTS ON BEHALF OF THESE REQUISITE
SAFEGUARDS FOR THE LIBERTY OF THE PEOPLE FAILED, PAXTON'S CASE, QUINCY
(MASS.) 51, A HIGHER TRIBUNAL RESOLVED THE ISSUE.  THE FAMILIAR COMMENT
OF JOHN ADAMS ON OTIS' ARGUMENT IN PAXTON'S CASE CAN NEVER BECOME
STALE:  "AMERICAN INDEPENDENCE WAS THEN AND THERE BORN; THE SEEDS OF
PATRIOTS AND HEROES WERE THEN AND THERE SOWN, TO DEFEND THE VIGOROUS
YOUTH, THE NON SINE DIIS ANIMOSUS INFANS.  EVERY MAN OF A CROWDED
AUDIENCE APPEARED TO ME TO GO AWAY, AS I DID, READY TO TAKE ARMS
AGAINST WRITS OF ASSISTANCE.  THEN AND THERE WAS THE FIRST SCENE OF THE
FIRST ACT OF OPPOSITION TO THE ARBITRARY CLAIMS OF GREAT BRITAIN.  THEN
AND THERE THE CHILD INDEPENDENCE WAS BORN.  IN FIFTEEN YEARS, NAMELY IN
1776, HE GREW UP TO MANHOOD, AND DECLARED HIMSELF FREE."  10 ADAMS,
WORKS, 247-248; FOR A DESCRIPTION OF OTIS' SPEECH IN PAXTON'S CASE, SEE
2 ID. 523.  SO BASIC TO LIBERTY IS THE PROTECTION AGAINST GOVERNMENTAL
SEARCH AND SEIZURE, THAT EVERY STATE IN THE UNION  FN3  HAS THIS AS A
CONSTITUTIONAL SAFEGUARD. 

THIS BLEAK RECITAL OF THE PAST WAS LIVING EXPERIENCE FOR MADISON AND
HIS COLLABORATORS.  THEY WROTE THAT EXPERIENCE INTO THE FOURTH
AMENDMENT, NOT MERELY ITS WORDS.  MENTION HAS BEEN MADE OF THE DOUBT IN
THE MINDS OF ENGLISH AND COLONIAL LIBERTARIANS WHETHER SEARCHES AND
SEIZURES COULD BE SANCTIONED EVEN BY SEARCH WARRANTS.  IT IS
SIGNIFICANT THAT MADISON DEEMED IT NECESSARY TO PUT INTO THE FOURTH
AMENDMENT A QUALIFYING PERMISSION FOR SEARCH AND SEIZURE BY THE
JUDICIAL PROCESS OF THE SEARCH WARRANT - A SEARCH WARRANT EXACTING IN
ITS FOUNDATION AND LIMITED IN SCOPE.  THIS QUALIFICATION GIVES THE KEY
TO WHAT THE FRAMERS HAD IN MIND BY PROHIBITING "UNREASONABLE" SEARCHES
AND SEIZURES.  THE PRINCIPLE WAS THAT ALL SEIZURES WITHOUT JUDICIAL
AUTHORITY WERE DEEMED "UNREASONABLE."  IF THE PURPOSE OF ITS FRAMERS IS
TO BE RESPECTED, THE MEANING OF THE FOURTH AMENDMENT MUST BE DISTILLED
FROM CONTEMPORANEOUS HISTORY.  THE INTENTION OF THE AMENDMENT WAS
ACCURATELY ELUCIDATED IN AN EARLY MASSACHUSETTS CASE.  THE COURT THERE
HAD BEFORE IT THE TERMS OF THE MASSACHUSETTS CONSTITUTION, ON WHICH,
WITH LIKE PROVISIONS IN OTHER STATE CONSTITUTIONS, THE FOURTH AMENDMENT
WAS BASED: 

"WITH THE FRESH RECOLLECTION OF THOSE STIRRING DISCUSSIONS
(RESPECTING WRITS OF ASSISTANCE), AND OF THE REVOLUTION WHICH FOLLOWED
THEM, THE ARTICLE IN THE BILL OF RIGHTS, RESPECTING SEARCHES AND
SEIZURES, WAS FRAMED AND ADOPTED.  THIS ARTICLE DOES NOT PROHIBIT ALL
SEARCHES AND SEIZURES OF A MAN'S PERSON, HIS PAPERS, AND POSSESSIONS;
BUT SUCH ONLY AS ARE 'UNREASONABLE,' AND THE FOUNDATION OF WHICH IS
'NOT PREVIOUSLY SUPPORTED BY OATH OR AFFIRMATION.'  THE LEGISLATURE
WERE NOT DEPRIVED OF THE POWER TO AUTHORIZE SEARCH WARRANTS FOR
PROBABLE CAUSES, SUPPORTED BY OATH OR AFFIRMATION, AND FOR THE
PUNISHMENT OR SUPPRESSION OF ANY VIOLATION OF LAW.  THE LAW, THEREFORE,
AUTHORIZING SEARCH WARRANTS IN CERTAIN CASES, IS IN NO RESPECT
INCONSISTENT WITH THE DECLARATION OF RIGHTS."  COMMONWEALTH V. DANA, 2
MET.  (MASS.)  329, 336. 

SUCH WAS THE CONTEMPORANEOUS CONSTRUCTION OF THE FOURTH AMENDMENT BY
THE CONGRESS.  IT GAVE SPECIFIC AUTHORIZATION WHENEVER IT WISHED TO
PERMIT SEARCHES AND SEIZURES.  BEGINNING WITH THE FIRST CONGRESS DOWN
TO 1917, CONGRESS AUTHORIZED SEARCH BY WARRANT NOT AS A GENERALLY
AVAILABLE RESOURCE IN AID OF CRIMINAL PROSECUTION BUT IN THE MOST
RESTRICTED WAY, OBSERVING WITH A JEALOUS EYE THE RECURRENCE OF EVILS
WITH WHICH OUR EARLY STATESMEN WERE INTIMATELY FAMILIAR.  FOR EACH
CONCRETE SITUATION CONGRESS DEEMED IT NECESSARY TO PASS A SEPARATE
ACT.  AN INCOMPLETE EXAMINATION FINDS SCORES OF SUCH AD HOC ENACTMENTS
SCATTERED THROUGH THE STATUTES AT LARGE.  NOT UNTIL 1917, AND THEN ONLY
AFTER REPEATED DEMANDS BY THE ATTORNEY GENERAL, DID CONGRESS PASS THE
PRESENT STATUTE AUTHORIZING THE ISSUE OF SEARCH WARRANTS FOR
GENERALIZED SITUATIONS.  40 STAT. 217, 228, 18 U.S.C. SECS. 611 ET SEQ.
EVEN THEN THE SITUATIONS WERE RESTRICTED AND THE SCOPE OF THE AUTHORITY
WAS STRICTLY DEFINED.  IN THE CASE BEFORE US NO ATTEMPT WAS MADE TO GET
A SEARCH WARRANT BECAUSE NONE COULD HAVE BEEN GOT.  CONGRESS DID NOT
AUTHORIZE ONE EITHER ON THE CHARGES ON WHICH DAVIS WAS ORIGINALLY
ARRESTED OR ON WHICH HE WAS ULTIMATELY TRIED.  AND EVEN SINCE THE 1917
ACT CONGRESS HAS EMPHASIZED THE IMPORTANCE OF BASING THE COMPULSORY
DEMAND FOR EVIDENCE UPON JUDICIAL PROCESS RATHER THAN THE ZEAL OF
ARRESTING OFFICERS.  THE HABIT OF CONTINUAL WATCHFULNESS AGAINST THE
DANGERS OF POLICE ABUSES HAS BEEN REFLECTED IN THAT CONGRESS HAS
CONTINUED TO AUTHORIZE SEARCH WARRANTS FOR PARTICULAR SITUATIONS BY
SPECIFIC LEGISLATION OR BY REFERENCE TO THE 1917 ACT.  THESE REVEALING
ENACTMENTS ARE SUMMARIZED IN AN APPENDIX. 

IN THE COURSE OF ITS DECISIONS, WITH A DEVIATION PROMPTLY RETRACED,
THIS COURT HAS LIKEWISE REFLECTED THE BROAD PURPOSE OF THE FOURTH
AMENDMENT.  THE HISTORIC REACH OF THE AMENDMENT AND THE DUTY TO OBSERVE
IT WAS EXPOUNDED FOR THE COURT BY MR. JUSTICE BRADLEY IN BOYD V. UNITED
STATES, 116 U.S. 616, "A CASE THAT WILL BE REMEMBERED AS LONG AS CIVIL
LIBERTY LIVES IN THE UNITED STATES."  BRANDEIS, J., IN OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 471, AT 474.  THE AMENDMENT HAS NOT BEEN
READ IN A NIGGARDLY SPIRIT OR WITH THE OUTLOOK OF A NARROW-MINDED
LAWYER. 

SINCE THE OPINION IN THIS CASE SEEMS TO ME OUT OF LINE WITH OUR PRIOR
DECISIONS, IT BECOMES IMPORTANT TO RECALL HOW THIS COURT HAS HERETOFORE
VIEWED THE FOURTH AMENDMENT AND WHAT HAS ACTUALLY BEEN DECIDED.  I
SHALL DRAW ON A SUMMARY OF THE COURT'S DECISIONS BY MR. JUSTICE
BRANDEIS: 

"TIME AND AGAIN, THIS COURT IN GIVING EFFECT TO THE PRINCIPLE
UNDERLYING THE FOURTH AMENDMENT, HAS REFUSED TO PLACE AN UNDULY LITERAL
CONSTRUCTION UPON IT.  THIS WAS NOTABLY ILLUSTRATED IN THE BOYD CASE
ITSELF.  TAKING LANGUAGE IN ITS ORDINARY MEANING, THERE IS NO 'SEARCH'
OR 'SEIZURE' WHEN A DEFENDANT IS REQUIRED TO PRODUCE A DOCUMENT IN THE
ORDERLY PROCESS OF A COURT'S PROCEDURE.  'THE RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST
UNREASONABLE SEARCHES AND SEIZURES,' WOULD NOT BE VIOLATED, UNDER ANY
ORDINARY CONSTRUCTION OF LANGUAGE, BY COMPELLING OBEDIENCE TO A
SUBPOENA.  BUT THIS COURT HOLDS THE EVIDENCE INADMISSIBLE SIMPLY
BECAUSE THE INFORMATION LEADING TO THE ISSUE OF THE SUBPOENA HAS BEEN
UNLAWFULLY SECURED.  SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S.
385.  LITERALLY, THERE IS NO 'SEARCH' OR 'SEIZURE' WHEN A FRIENDLY
VISITOR ABSTRACTS PAPERS FROM AN OFFICE; YET WE HELD IN GOULED V.
UNITED STATES, 255 U.S. 298, THAT EVIDENCE SO OBTAINED COULD NOT BE
USED.  NO COURT WHICH LOOKED AT THE WORDS OF THE AMENDMENT RATHER THAN
AT ITS UNDERLYING PURPOSE WOULD HOLD, AS THIS COURT DID IN EX PARTE
JACKSON, 96 U.S. 727, 733, THAT ITS PROTECTION EXTENDED TO LETTERS IN
THE MAILS.  THE PROVISION AGAINST SELF-INCRIMINATION IN THE FIFTH
AMENDMENT HAS BEEN GIVEN AN EQUALLY BROAD CONSTRUCTION.  THE LANGUAGE
IS:  'NO PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF.'  YET WE HAVE HELD, NOT ONLY THAT THE
PROTECTION OF THE AMENDMENT EXTENDS TO A WITNESS BEFORE A GRAND JURY,
ALTHOUGH HE HAS NOT BEEN CHARGED WITH CRIME, COUNSELMAN V. HITCHCOCK,
142 U.S. 547, 562, 586, BUT THAT:  'IT APPLIES ALIKE TO CIVIL AND
CRIMINAL PROCEEDINGS, WHEREVER THE ANSWER MIGHT TEND TO SUBJECT TO
CRIMINAL RESPONSIBILITY HIM WHO GIVES IT.  THE PRIVILEGE PROTECTS A
MERE WITNESS AS FULLY AS IT DOES ONE WHO IS ALSO A PARTY DEFENDANT.' 
MCCARTHY V. ARNDSTEIN, 266 U.S. 34, 40.  THE NARROW LANGUAGE OF THE
AMENDMENT HAS BEEN CONSISTENTLY CONSTRUED IN THE LIGHT OF ITS OBJECT,
'TO INSURE THAT A PERSON SHOULD NOT BE COMPELLED, WHEN ACTING AS A
WITNESS IN ANY INVESTIGATION, TO GIVE TESTIMONY WHICH MIGHT TEND TO
SHOW THAT HE HIMSELF HAD COMMITTED A CRIME.  THE PRIVILEGE IS LIMITED
TO CRIMINAL MATTERS, BUT IT IS AS BROAD AS THE MISCHIEF AGAINST WHICH
IT SEEKS TO GUARD.'  COUNSELMAN V. HITCHCOCK, SUPRA, P. 562. 

"DECISIONS OF THIS COURT APPLYING THE PRINCIPLE OF THE BOYD CASE HAVE
SETTLED THESE THINGS.  UNJUSTIFIED SEARCH AND SEIZURE VIOLATES THE
FOURTH AMENDMENT, WHATEVER THE CHARACTER OF THE PAPER; WHETHER THE
PAPER WHEN TAKEN BY THE FEDERAL OFFICERS WAS IN THE HOME, IN AN OFFICE
OR ELSEWHERE; WHETHER THE TAKING WAS EFFECTED BY FORCE, BY FRAUD, OR IN
THE ORDERLY PROCESS OF A COURT'S PROCEDURE.  FROM THESE DECISIONS, IT
FOLLOWS NECESSARILY THAT THE AMENDMENT IS VIOLATED BY THE OFFICER'S
READING THE PAPER WITHOUT A PHYSICAL SEIZURE, WITHOUT HIS EVEN TOUCHING
IT; AND THAT USE, IN ANY CRIMINAL PROCEEDING, OF THE CONTENTS OF THE
PAPERS SO EXAMINED - AS WHERE THEY ARE TESTIFIED TO BY A FEDERAL
OFFICER WHO THUS SAW THE DOCUMENT OR WHERE, THROUGH KNOWLEDGE SO
OBTAINED, A COPY HAS BEEN PROCURED ELSEWHERE - ANY SUCH USE CONSTITUTES
A VIOLATION OF THE FIFTH AMENDMENT."  OLMSTEAD V. UNITED STATES, 277
U.S. 438, 471, AT 476-478. 

AND SO WE ARE FINALLY BROUGHT TO THE QUESTION WHETHER THE SEIZURE OF
DOCUMENTS WHICH COULD NOT POSSIBLY HAVE BEEN JUSTIFIED AS THE RESULT OF
A SEARCH UNDER A WARRANT, SINCE NO SUCH WARRANT COULD HAVE BEEN
AUTHORIZED BY LAW, CAN BE JUSTIFIED AS A SEARCH AND SEIZURE WITHOUT A
WARRANT.  SUCH JUSTIFICATION MUST HAVE SOME HISTORIC FOUNDATION,
OTHERWISE IT IS CLEARLY OUT OF THE BOUNDS OF THE FOURTH AMENDMENT.  THE
COURT BELOW EVIDENTLY STRUGGLED IN REACHING ITS CONCLUSION BECAUSE OF
SOME DECISIONS HERE WHICH IT NATURALLY FOUND "NOT ENTIRELY
HARMONIOUS."  ITS CHIEF RELIANCE WAS LANGUAGE IN MARRON V. UNITED
STATES, 275 U.S. 192.  A SHORT ANSWER WOULD BE THAT THE STING OF THE
MARRON CASE WAS TAKEN BY TWO LATER CASES.  GO-BART CO. V. UNITED
STATES, 282 U.S. 344, 358, AND UNITED STATES V. LEFKOWITZ, 285 U.S.
452, 465.  BUT A CLOSER ANALYSIS IS CALLED FOR. 

ONE WOULD EXPECT A HARD-HEADED SYSTEM LIKE THE COMMON LAW TO
RECOGNIZE EXCEPTIONS EVEN TO THE MOST COMPREHENSIVE PRINCIPLE FOR
SAFEGUARDING LIBERTY.  THIS IS TRUE OF THE PROHIBITION OF ALL SEARCHES
AND SEIZURES AS UNREASONABLE UNLESS AUTHORIZED BY A JUDICIAL WARRANT
APPROPRIATELY SUPPORTED.  SUCH IS THE EXCEPTION, HISTORICALLY WELL
RECOGNIZED, OF THE RIGHT TO SEIZE WITHOUT WARRANT GOODS AND PAPERS ON
SHIPS OR OTHER MOVING VEHICLES.  ANOTHER EXCEPTION IS THE RIGHT OF
SEARCHING THE PERSON UPON ARREST.  WHETHER THAT RIGHT IS A SURVIVING
INCIDENT OF THE HISTORIC ROLE OF THE "HUE AND CRY" IN EARLY ANGLO-SAXON
LAW, SEE PEOPLE V. CHIAGLES, 237 N.Y. 193, 196, 142 N.E. 583, OR IS
BASED ON THE NECESSITY OF DEPRIVING THE PRISONER OF POTENTIAL MEANS OF
ESCAPE, CLOSSON V. MORRISON, 47 N.H. 482, OR ON PREVENTING THE PRISONER
FROM DESTROYING EVIDENCE OTHERWISE PROPERLY SUBJECT TO SEIZURE, SEE
REIFSNYDER V. LEE, 44 IOWA 101, 103; HOLKER V. HENNESSEY, 141 MO. 527,
42 S.W. 1090, THE RIGHT TO SEARCH A PRISONER UPON LAWFUL ARREST WAS
EARLY SETTLED IN OUR LAW.  FN4  1 BISHOP, NEW CRIMINAL PROCEDURE (4TH
ED., 1895) SECS. 210 ET SEQ. 

A CASUAL AND UNCRITICAL APPLICATION OF THIS RIGHT TO SEARCH THE
PERSON OF THE PRISONER HAS LED SOME DECISIONS IN THE LOWER FEDERAL
COURTS TO AN UNWARRANTED EXPANSION OF THIS NARROW EXCEPTION, WITH
RESULTING INROADS UPON THE OVERRIDING PRINCIPLE OF THE PROHIBITION OF
THE FOURTH AMENDMENT.  SLIGHT EXTENSIONS FROM CASE TO CASE GRADUALLY
ATTAIN A CONSIDERABLE MOMENTUM FROM "JUDICIAL SANCTION OF EQUIVOCAL
METHODS, WHICH, REGARDED SUPERFICIALLY, MAY SEEM TO ESCAPE THE
CHALLENGE OF ILLEGALITY BUT WHICH, IN REALITY, STRIKE AT THE SUBSTANCE
OF THE CONSTITUTIONAL RIGHT."  BYARS V. UNITED STATES, 273 U.S. 28, 33
34.  IN CASES DEALING WITH THE SEARCH OF THE PERSON,  FN5  IT IS
NATURAL TO SPEAK OF THE RIGHT TO SEARCH AND SEIZE THINGS "IN HIS
POSSESSION" WITHOUT STRICT REGARD TO THE AMBIGUOUS SCOPE OF A MAN'S
"POSSESSION."  FROM THAT, OPINIONS SLIDE READILY TO INCLUDING THE RIGHT
TO SEARCH AND SEIZE THINGS "WITHIN THE IMMEDIATE CONTROL" OF THE
ARRESTED PERSON, LANGUAGE APPROPRIATE ENOUGH WHEN APPLIED TO GOODS
WHICH THE ARRESTED PERSON WAS TRANSPORTING AT THE TIME.  FN6  TAKEN OUT
OF THEIR ORIGINAL CONTEXT, THESE PHRASES ARE USED UNTIL THEY ARE MADE
TO INCLUDE THE ENTIRE PREMISES  FN7  IN WHICH THE ARREST TAKES PLACE. 
ANOTHER FACTOR ENTERS.  THIS LANGUAGE IS SOMETIMES USED IN CASES
INVOLVING THE SEIZURE OF ITEMS PROPERLY SUBJECT TO SEIZURE BECAUSE IN
OPEN VIEW AT THE TIME OF ARREST.  FN8  BUT THIS LAST CONFUSION IS DUE
TO A FAILURE TO DISTINGUISH BETWEEN THE APPROPRIATE SCOPE OF A SEARCH
ON ARREST AND THE VERY DIFFERENT PROBLEM AS TO THE RIGHT OF SEIZURE
WHERE NO SEARCH IS IN QUESTION. 

IT IS IMPORTANT TO KEEP CLEAR THE DISTINCTION BETWEEN PROHIBITED
SEARCHES ON THE ONE HAND AND IMPROPER SEIZURES ON THE OTHER.  SEE MR.
JUSTICE MILLER, IN BOYD V. UNITED STATES, 116 U.S. 616, 638, 641. 
THUS, IT IS UNCONSTITUTIONAL TO SEIZE A PERSON'S PRIVATE PAPERS, THOUGH
THE SEARCH IN WHICH THEY WERE RECOVERED WAS PERFECTLY PROPER.  E.G.,
GOULED V. UNITED STATES, 255 U.S. 298.  IT IS UNCONSTITUTIONAL TO MAKE
AN IMPROPER SEARCH EVEN FOR ARTICLES THAT ARE APPROPRIATELY SUBJECT TO
SEIZURE, E.G., AMOS V. UNITED STATES, 255 U.S. 313; BYARS V. UNITED
STATES, 273 U.S. 28; TAYLOR V. UNITED STATES, 286 U.S. 1.  AND A SEARCH
MAY BE IMPROPER BECAUSE OF THE OBJECT IT SEEKS TO UNCOVER, E.G., WEEKS
V. UNITED STATES, 232 U.S. 383, 393-94, OR BECAUSE ITS SCOPE EXTENDS
BEYOND THE CONSTITUTIONAL BOUNDS, E.G., AGNELLO V. UNITED STATES, 269
U.S. 20. 

THE COURSE OF DECISIONS HERE HAS OBSERVED THESE IMPORTANT
DISTINCTIONS.  THE COURT HAS NOT BEEN INDULGENT TOWARDS INROADS UPON
THE AMENDMENT.  ONLY RARELY HAVE ITS DICTA APPEARED TO GIVE UNDUE SCOPE
TO THE RIGHT OF SEARCH ON ARREST, AND MARRON V. UNITED STATES, SUPRA,
IS THE ONLY DECISION IN WHICH THE DICTA WERE REFLECTED IN THE RESULT. 
THAT CASE HAS BEEN A SOURCE OF CONFUSION TO THE LOWER COURTS.  THUS,
THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT FELT THAT THE
MARRON CASE REQUIRED IT TO GIVE A MORE RESTRICTED VIEW TO THE
PROHIBITIONS OF THE FOURTH AMENDMENT THAN THAT COURT HAD EXPOUNDED IN
UNITED STATES V. KIRSCHENBLATT, 16 F.2D 202, SEE GO-BART CO. V. UNITED
STATES, SUB NOM., UNITED STATES V. GOWEN, 40 F.2D 593, ONLY TO FIND
ITSELF REVERSED HERE, GO-BART CO. V. UNITED STATES, SUPRA, PARTLY ON
THE AUTHORITY OF THE KIRSCHENBLATT DECISION WHICH, AFTER THE MARRON
CASE, IT THOUGHT IT MUST DISOWN.  THE UNCRITICAL APPLICATION OF THE
RIGHT OF SEARCH ON ARREST IN THE MARRON CASE HAS SURELY BEEN DISPLACED
BY GO-BART CO. V. UNITED STATES, SUPRA, AND EVEN MORE DRASTICALLY BY
UNITED STATES V. LEFKOWITZ, SUPRA, UNLESS ONE IS TO INFER THAT AN
EARLIER CASE QUALIFIES LATER DECISIONS ALTHOUGH THESE LATER DECISIONS
HAVE EXPLICITLY CONFINED THE EARLIER CASE. 

IN VIEW OF THE JEALOUSY WITH WHICH THIS COURT HAS APPLIED THE
PROTECTION OF THE FOURTH AMENDMENT EVEN WHERE THE SEARCH PURPORTED TO
TAKE PLACE UNDER A PROPER WARRANT AND THERE WAS THE SAFEGUARD OF
JUDICIAL PROCESS IN ADDITION TO THE EXPRESSED JUDGMENT OF THE
ENFORCEMENT OFFICIALS, SEE E.G., GRAU V. UNITED STATES, 287 U.S. 124;
SGRO V. UNITED STATES, 287 U.S. 206, IT WAS NOT TO BE EXPECTED THAT
THIS COURT SHOULD SANCTION SEARCHES ON ARREST THAT CAN BE JUSTIFIED AS
REASONABLE ONLY IF SECURING EVIDENCE FOR PURPOSES OF THE TRIAL IS THE
TEST OF REASONABLENESS FOR PURPOSES OF THE FOURTH AMENDMENT.  SUCH A
VIEW PRESUPPOSES THAT THE FOURTH AMENDMENT IS OBSOLETE AND MAKES OF THE
PARTICULARITY OF REQUIREMENT FOR SEARCH WARRANTS A MOCKING REDUNDANCY. 

A FINAL POINT.  IN THIS CASE THE ARREST WAS BASED ON TWO
MISDEMEANORS, THE SALE OF GASOLINE WITHOUT THE REQUISITE COUPONS AND
THE SALE OF GASOLINE AT A PRICE OVER THE O.P.A. CEILINGS.  FOR NEITHER
OF THESE OFFENSES WERE COUPONS "INSTRUMENTS OF THE CRIME" IN ANY SENSE
IN WHICH THAT TERM IS PROPERLY USED.  THE EXCEPTIONAL RIGHT TO SEARCH
ON ARREST DOES NOT IN ANY EVENT EXTEND TO A SEARCH FOR ARTICLES
NECESSARY TO THE COMMISSION OF A CRIME OTHER THAN THAT FOR WHICH THE
ARREST WAS MADE.  THE OFFICERS COULD NOT HAVE MADE AN ARREST OF DAVIS
FOR ILLEGAL POSSESSION OF COUPONS, FOR WHICH HE WAS LATER TRIED, ON
MERE SUSPICION.  THAT CRIME, LIKE THE OTHERS, WAS ONLY A MISDEMEANOR,
AND NO ARREST CAN BE MADE FOR A MISDEMEANOR WITHOUT A WARRANT UNLESS IT
BE COMMITTED IN THE PRESENCE OF OFFICERS.  PRIOR TO THE SEARCH, THE
OFFICERS HAD NO BASIS FOR STATING THAT HE WAS COMMITTING THE CRIME OF
ILLEGAL POSSESSION OF THE COUPONS IN THEIR PRESENCE. 

IT IS TOO OFTEN FELT, THOUGH NOT ALWAYS AVOWED, THAT WHAT IS CALLED
NICE OBSERVANCE OF THESE CONSTITUTIONAL SAFEGUARDS MAKES APPREHENSION
AND CONVICTION OF VIOLATORS TOO DIFFICULT.  WANT OF ALERTNESS AND
ENTERPRISE ON THE PART OF THE LAW ENFORCERS TOO OFTEN IS THE REAL
OBSTRUCTION TO LAW ENFORCEMENT.  THE PRESENT CASE AFFORDS A GOOD
INSTANCE.  FN9  THE SITUATION BEARS CLOSE RESEMBLANCE TO WHAT JUDGE
LEARNED HAND SAID ON ANOTHER OCCASION.  "WE ARE TOLD THAT UNLESS SUCH
EVIDENCE WILL SERVE, IT WILL BE IMPOSSIBLE TO SUPPRESS AN EVIL OF LARGE
PROPORTION IN THE RESIDENTIAL PART OF BROOKLYN.  PERHAPS SO; ANY
COMMUNITY MUST CHOOSE BETWEEN THE IMPAIRMENT OF ITS POWER TO PUNISH
CRIME AND SUCH EVILS AS ARISE FROM ITS UNCONTROLLED PROSECUTION.  BUT
THE DANGER IS NOT CERTAIN, FOR THE OFFICERS COULD HAVE APPLIED FOR A
WARRANT WHICH - AS WAS AT LEAST INTIMATED IN TAYLOR V. UNITED STATES -
MIGHT THEN HAVE BEEN VALID.  IT TAKES TIME TO BREAK UP A STILL AND TAKE
THE PARTS AWAY; IF THE ATTEMPT WERE MADE, IT WOULD DISCOVER ITSELF
IMMEDIATELY.  ONE OR MORE OFFICERS COULD HAVE WATCHED, WHILE THE OTHERS
WENT TO A JUDGE OR COMMISSIONER, WHOSE ACTION WOULD AT LEAST HAVE PUT A
DIFFERENT FACE UPON THEIR SUBSEQUENT PROCEEDINGS."  UNITED STATES V.
KAPLAN, 89 F.2D 869, 871. 

THE COURT IN THIS CASE GIVES A NEW LABEL TO AN OLD PRACTICE AND TO AN
OLD CLAIM BY POLICE OFFICIALS.  BUT IT HAPPENS THAT THE OLD PRACTICE
AND THE OLD CLAIM NOW REFURBISHED IN A NEW VERBAL DRESS WERE THE VERY
PRACTICE AND CLAIM WHICH INFRINGED LIBERTY AS CONCEIVED BY THOSE WHO
FRAMED THE CONSTITUTION AND AGAINST WHICH THEY ERECTED THE BARRIERS OF
THE FOURTH AMENDMENT.  I AM CONSTRAINED TO BELIEVE THAT TODAY'S
DECISION FLOWS FROM A VIEW OF THE FOURTH AMENDMENT THAT IS UNMINDFUL OF
THE HISTORY THAT BEGOT IT AND OF THE PURPOSE FOR WHICH IT WAS INCLUDED
IN THE BILL OF RIGHTS.  AND THE VIEW OF THE AMENDMENT WHICH THE COURT
REJECTS IS CONFIRMED BY AN IMPRESSIVE BODY OF THE LAWS OF CONGRESS AND
OF THE DECISIONS OF THIS COURT.  STERN ENFORCEMENT OF THE CRIMINAL LAW
IS THE HALLMARK OF A HEALTHY AND SELF-CONFIDENT SOCIETY.  BUT IN OUR
DEMOCRACY SUCH ENFORCEMENT PRESUPPOSES A MORAL ATMOSPHERE AND A
RELIANCE UPON INTELLIGENCE WHEREBY THE EFFECTIVE ADMINISTRATION OF
JUSTICE CAN BE ACHIEVED WITH DUE REGARD FOR THOSE CIVILIZED STANDARDS
IN THE USE OF THE CRIMINAL LAW WHICH ARE FORMULATED IN OUR BILL OF
RIGHTS.  IF GREAT PRINCIPLES SOMETIMES APPEAR AS FINICKY OBSTRUCTIONS
IN BRINGING A CRIMINAL TO HEEL, THIS ADMONITION OF A WISE JUDGE GIVES
THE FINAL ANSWER:  "SUCH CONSTITUTIONAL LIMITATIONS ARISE FROM
GRIEVANCES, REAL OR FANCIED, WHICH THEIR MAKERS HAVE SUFFERED, AND
SHOULD GO PARI PASSU WITH THE SUPPOSED EVIL.  THEY WITHSTAND THE WINDS
OF LOGIC BY THE DEPTH AND TOUGHNESS OF THEIR ROOTS IN THE PAST.  NOR
SHOULD WE FORGET THAT WHAT SEEMS FAIR ENOUGH AGAINST A SQUALID HUCKSTER
OF BAD LIQUOR MAY TAKE ON A VERY DIFFERENT FACE, IF USED BY A
GOVERNMENT DETERMINED TO SUPPRESS POLITICAL OPPOSITION UNDER THE GUISE
OF SEDITION."  LEARNED HAND, J., IN UNITED STATES V. KIRSCHENBLATT, 16
F.2D 202, 203. 

FN1  THE PETITIONER WAS ARRESTED FOR THE SALE OF GASOLINE WITHOUT
COUPONS AND AT A PRICE GREATER THAN THAT AUTHORIZED BY THE OFFICE OF
PRICE ADMINISTRATION CEILINGS; HE WAS PROSECUTED FOR THE ILLEGAL
POSSESSION OF GASOLINE RATION DOCUMENTS.  THESE OFFENSES ARE
MISDEMEANORS.  56 STAT. 176, 179, 50 U.S.C. APP. SEC. 633(5). 

THE ESPIONAGE ACT LIMITS THE ISSUANCE OF SEARCH WARRANTS TO THOSE IN
WHICH THE PROPERTY SOUGHT WAS STOLEN OR EMBEZZLED, USED AS A MEANS OF
COMMITTING A FELONY, OR USED THE AID ILLEGALLY A FOREIGN NATION.  40
STAT. 217, 228, 18 U.S.C. SEC. 612.  THE DOCUMENTS INVOLVED IN THIS
CASE DO NOT COME WITHIN ANY OF THESE CATEGORIES. 

FN2  A FEW WORDS ONLY NEED BE SAID ABOUT THE CASES ON WHICH THE
GOVERNMENT RELIES.  MOST OF THEM DEAL WITH THE AMENABILITY OF DOCUMENTS
TO PRODUCTION UPON LEGAL PROCESS.  WILSON V. UNITED STATES, 221 U.S.
361; BOWLES V. INSEL, 148 F.2D 91; CUDMORE V. BOWLES, 79 U.S. APP. D.C.
255, 145 F.2D 697; RODGERS V. UNITED STATES, 138 F.2D 992; FLEMING V.
MONTGOMERY WARD & CO., 114 F.2D 384.  IN THE OTHERS, CONSENT WAS GIVEN
TO INSPECT THE PAPERS IN ACCORDANCE WITH THE PROVISIONS OF THE
GOVERNING STATUTE.  BOWLES V. BEATRICE CREAMERY CO., 146 F.2D 774;
BOWLES V. GLICK BROS. LUMBER CO., 146 F.2D 566; IN RE SANA
LABORATORIES, 115 F.2D 717(SUBSEQUENT TO THE INSPECTION THERE WAS A
WRONGFUL TAKING; THE COURT ADMITTED THE EVIDENCE PROCURED AS A RESULT
OF THE INSPECTION, BUT BARRED THE DOCUMENTS FROM EVIDENCE); C.M. SPRING
DRUG CO. V. UNITED STATES, 12 F.2D 852; UNITED STATES V. KEMPE, 59
F.SUPP.  905; BOWLES V. STITZINGER, 59 F.SUPP.  94; BOWLES V. CURTISS
CANDY CO., 55 F.SUPP.  527; UNITED STATES V. SHERRY, 294 F. 684(HERE
THE DOCUMENTS WERE TAKEN WITH THE CONSENT OF THE CUSTODIAN).  IN A.
GUCKENHEIMER & BROS. CO. V. UNITED STATES, 3 F.2D 786, HOWEVER, THE
SITUATION BEARS SOME RESEMBLANCE TO THE PRESENT CASE.  THERE THE
CIRCUIT COURT OF APPEALS ATTRIBUTED THE CONSENT OF THE CUSTODIAN,
FOLLOWING CONTINUAL REFUSAL, TO THE COMMAND OF THE STATUTE.  WHILE
THERE WAS NO INDICATION, AS EVIDENCED BY THE OPINION, THAT THE
DOCUMENTS WERE SECURED THROUGH FEAR OF FORCE, THE INSPECTION AFFORDED
WAS PROBABLY NOT VOLUNTARY.  INSOFAR AS THERE IS SUPPORT IN THAT CASE
FOR A SEARCH THAT TRANSGRESSED THE FOURTH AMENDMENT, THE OBSERVATIONS
ARE MERE DICTA, SINCE NO TIMELY OBJECTION WAS FILED. 

FN3  THIS HISTORIC SAFEGUARD AGAINST UNREASONABLE SEARCH AND SEIZURE
WAS GIVEN FORMAL CONSTITUTIONAL SANCTION IN NEW YORK IN 1938.  N.Y.
CONST. OF 1938, ART. 1, SEC. 12. 

FN4  FOR PURPOSES OF PRESENT DISCUSSION, THE VALIDITY OF THE ARREST
HAS BEEN ASSUMED.  BUT ITS LEGALITY RAISES SEVERAL SERIOUS QUESTIONS. 
FIRST, IT IS NOT CLEAR WHETHER THE O.P.A. INVESTIGATORS OR THE NEW YORK
CITY DETECTIVES MADE THE ARREST.  THE O.P.A. INVESTIGATORS, OF COURSE,
HAVE NO AUTHORIZATION TO MAKE AN ARREST.  WHETHER THE NEW YORK
DETECTIVES ARE AUTHORIZED TO MAKE ARRESTS FOR FEDERAL OFFENSES IS A
DEBATABLE ISSUE.  SEE GAMBINO V. UNITED STATES, 275 U.S. 310; MARSH V.
UNITED STATES, 29 F.2D 172; SEC. 20(A) OF THE EMERGENCY PRICE CONTROL
ACT, 56 STAT. 23, 29, 50 U.S.C. APP. SEC. 921.  THOUGH LOCAL LAW MAKES
PROVISION FOR PUNISHMENT OF THE SAME ACTS THAT ARE FEDERAL OFFENSES IN
THIS REGARD, N.Y. LAWS, 1942, C. 544, THE ARREST WAS MADE FOR A FEDERAL
AND NOT A STATE OR LOCAL OFFENSE.  IF THE NEW YORK LAW IS CONTROLLING
AS TO THE VALIDITY OF THE ARREST, HOWEVER, IT IS WITHIN THE POWER OF
ANY PERSON TO MAKE AN ARREST FOR A CRIME, INCLUDING A MISDEMEANOR, IN
HIS PRESENCE.  THE COMMON LAW RULE RESTRICTED ARREST WITHOUT WARRANT
FOR A MISDEMEANOR TO THOSE ACTS WHICH WERE BREACHES OF THE PEACE.  HERE
AGAIN, THERE IS THE ISSUE OF WHETHER THE PETITIONER COMMITTED ANY
MISDEMEANOR IN THE PRESENCE OF THOSE MAKING THE ARREST AT THE TIME THE
ARREST WAS MADE.  A RECENT DECISION BY THE ENGLISH COURT OF APPEAL
FOCUSES ATTENTION ON THIS LAST QUESTION.  IN LEACHINSKY V. CHRISTIE
(1945), (1946) 1 K.B. 124, AT 135, LORD JUSTICE SCOTT MAKES CLEAR WHY
THE LEGALITY OF ARREST TURNS ON THE JUSTIFICATION WHICH THE ARRESTING
OFFICER GIVES AT THE TIME OF THE ARREST:  "THE LAW DOES NOT ALLOW AN
ARREST IN VACUO, OR WITHOUT REASON ASSIGNED, AND THE REASON ASSIGNED
MUST BE THAT THE ARREST IS FOR THE PURPOSE OF A PROSECUTION ON THE SELF
SAME CHARGE, AS IS THE JUSTIFICATION FOR THE ARREST.  IT FOLLOWS, AND
IT IS A PRINCIPLE LYING AT THE VERY ROOTS OF ENGLISH FREEDOM, THAT IF A
MAN IS ARRESTED ON ONE CHARGE HE IS ENTITLED TO HIS RELEASE THE MOMENT
THE PROSECUTION OF THAT CHARGE IS ABANDONED.  THE PROSECUTION CANNOT
ARREST ON ONE CHARGE, ABANDON THEIR INTENTION TO PROCEED ON THAT CHARGE
AND THEN KEEP HIM IN COLD STORAGE, STILL NOMINALLY ON THAT CHARGE,
WHILE THEY INQUIRE INTO THE POSSIBILITY OF PUTTING FORWARD A DIFFERENT
CHARGE.  TO DO THAT THEY MUST FIRST RELEASE HIM:  THEN, WHEN THEY
PROPOSE TO PUT FORWARD SOME OTHER CHARGE, THEY CAN MAKE THAT NEW CHARGE
THE OCCASION OF A NEW ARREST."  SEE ALSO DUMBELL V. ROBERTS (1944), 113
L.J. (K.B.)  185; PEOPLE V. MARENDI, 213 N.Y. 600, 609 ET SEQ., 107
N.E. 1058.  THE LAW QUARTERLY REVIEW, IN COMMENTING ON THE LEACHINSKY
CASE, POINTED OUT:  "AN ACCUSED PERSON HAS A RIGHT TO KNOW WHAT THE
CHARGE IS AGAINST HIM SO THAT, IF HE ELECTS TO SPEAK, HE MAY HAVE A
FAIR AND OPEN CHANCE OF CLEARING HIMSELF AT THE EARLIEST MOMENT."  62
L.Q. REV. AT 4.  IT IS TO BE NOTED THAT CARROLL V. UNITED STATES, 267
U.S. 132, 157, ASSUMES THE FEDERAL LAW OF ARREST TO BE THE SAME AS THAT
OF THE ENGLISH. 

FN5  E.G., UNITED STATES V. WILSON, 163 F. 338, 340; UNITED STATES V.
MURPHY, 264 F. 842, 844; UNITED STATES V. SNYDER, 278 F. 650, 658;
MAYNARD V. UNITED STATES, 23 F.2D 141, 144; CF. UNITED STATES V. WELSH,
247 F. 239; LAUGHTER V. UNITED STATES, 259 F. 94; DONEGAN V. UNITED
STATES, 287 F. 641; WINKLER V. UNITED STATES, 297 F. 202. 

FN6  E.G., GREEN V. UNITED STATES, 289 F. 236, 238; BROWNE V. UNITED
STATES, 290 F. 870, 875; GARSKE V. UNITED STATES, 1 F.2D 620; KWONG HOW
V. UNITED STATES, 71 F.2D 71. 

FN7  E.G., SWAN V. UNITED STATES, 295 F. 921; SAYERS V. UNITED
STATES, 2 F.2D 146; UNITED STATES V. POLLER, 43 F.2D 911; UNITED STATES
V. 71.41 OUNCES GOLD FILLED SCRAP, 94 F.2D 17; UNITED STATES V.
FELDMAN, 104 F.2D 255; MATTHEWS V. CORREA, 135 F.2D 534; UNITED STATES
V. LINDENFELD, 142 F.2D 829. 

FN8  E.G., LANEY V. UNITED STATES, 294 F. 412, 416; UNITED STATES V.
CHIN ON, 297 F. 531, 533; UNITED STATES V. SELTZER, 5 F.2D 364; MATTUS
V. UNITED STATES, 11 F.2D 503; CHENG WAI V. UNITED STATES, 125 F.2D
915; CF. UNITED STATES V. BORKOWSKI, 268 F. 408; IN RE MOBILE, 278 F.
949; O'CONNOR V. UNITED STATES, 281 F. 396; VACHINA V. UNITED STATES,
283 F. 35; FURLONG V. UNITED STATES, 10 F.2D 492; UNITED STATES V.
FISCHER, 38 F.2D 830. 

FN9  THE PETITIONER'S GAS STATION WAS UNDER SUSPICION FOR SOME WEEKS;
YET ACTION WAS FINALLY TAKEN AS DESCRIBED IN THIS OPINION.  PETITIONER
WAS ARRESTED WHEN HE ARRIVED AT THE GAS STATION FOR SALE ABOVE CEILING
PRICES AND SALES WITHOUT COUPONS.  NO ARRAIGNMENT WAS MADE FOR THESE
OFFENSES - INSTEAD THE OFFICERS ENGAGED IN A SEARCH OF THE PREMISES,
WHICH INCLUDED THE ESSENTIALLY FORCED ENTRY INTO THE PETITIONER'S
OFFICE.  HE WAS THEN TAKEN TO THE LOCAL O.P.A. HEADQUARTERS.  AFTER
SEVERAL HOURS OF QUESTIONING AT O.P.A. HEADQUARTERS, DAVIS WAS
RELEASED.  NOT UNTIL ONE MONTH LATER WAS THE PETITIONER RE-ARRESTED AND
ARRAIGNED, AND THEN ON A CHARGE ENTIRELY DIFFERENT FROM THOSE ON WHICH
THE ORIGINAL ARREST WAS MADE.  THE EMERGENCY PRICE CONTROL ACT, 56
STAT. 23, 50 U.S.C. APP. SECS. 901 ET SEQ., MADE ADEQUATE PROVISION FOR
EFFECTIVE ENFORCEMENT OF THE STATUTE.  SO FAR AS SECURING DOCUMENTS AND
PAPERS ARE CONCERNED, THE ADMINISTRATOR IS EQUIPPED WITH THE SUBPOENA
POWER, SEC. 202(C), (D), (E); IN ADDITION, THE ADMINISTRATOR HAS THE
POWER TO SEEK INJUNCTION AGAINST THE ACTS WHICH THE PETITIONER WAS
ACCUSED OF COMMITTING, SEC. 205(A); AND BY APPROPRIATE PROCEEDINGS THE
ADMINISTRATOR MAY SEEK THE WITHDRAWAL OF THE LICENSE WHICH THE
PETITIONER REQUIRED TO OPERATE HIS BUSINESS, SEC. 205(F). 

                              APPENDIX. 

      SEARCH AND SEIZURE UNDER WARRANT.* 

*CONGRESS HAS PASSED NUMEROUS STATUTES AUTHORIZING INSPECTION OF
DEFINED PREMISES AND SEIZURES WITHOUT WARRANTS.  THESE ARE ALL VERY
PARTICULARIZED ACTS, RELATING MOSTLY TO THE INSPECTION OF VESSELS AND
VEHICLES AND THE SEIZURE OF VARIOUS TYPES OF CONTRABAND GOODS.  MOST OF
THIS LEGISLATION COMES WITHIN THE EXCEPTIONS HISTORICALLY RECOGNIZED AT
THE TIME OF THE ADOPTION OF THE FOURTH AMENDMENT AS TO RECAPTURE OF
STOLEN GOODS AND SEARCH OF VEHICLES AND VESSELS BECAUSE OF THEIR
FUGITIVE NATURE.  IN SUCH A MASS OF LEGISLATION, IT WOULD NOT BE
SURPRISING IF SOME OF THE SPECIFIC ACTS FELL AFOUL OF THE
CONSIDERATIONS WHICH INVALIDATED THE LEGISLATION IN THE BOYD CASE.  116
U.S. 616.  WHAT IS SIGNIFICANT ABOUT THIS LEGISLATION IS THE
RECOGNITION BY CONGRESS OF THE NECESSITY FOR SPECIFIC CONGRESSIONAL
AUTHORIZATION EVEN FOR THE SEARCH OF VESSELS AND OTHER MOVING VEHICLES
AND THE SEIZURES OF GOODS TECHNICALLY CONTRABAND. 

A. PLACE TO BE SEARCHED. 

ACT OF JULY 31, 1789, 1 STAT. 29, 43(DWELLING HOUSE, STORE, BUILDING,
OR OTHER PLACE, BY DAY); ACT OF AUGUST 4, 1790, 1 STAT. 145,
170(DWELLING HOUSE, STORE, BUILDING, OR OTHER PLACE, BY DAY); ACT OF
MARCH 3, 1791, 1 STAT. 199, 207(ANY PLACE, BY DAY); ACT OF MARCH 2,
1799, 1 STAT. 627, 677-78(DWELLING HOUSE, STORE, BUILDING, OR OTHER
PLACE, BY DAY); ACT OF APRIL 18, 1806, 2 STAT. 379, 380(DWELLING HOUSE,
STORE, BUILDING, OR OTHER PLACE, BY DAY); ACT OF MARCH 1, 1809, 2 STAT.
528, 530(DWELLING HOUSE, STORE, BUILDING, OR OTHER PLACE); ACT OF MARCH
3, 1815, 3 STAT. 231, 232(DWELLING HOUSE, STORE, OR OTHER BUILDING, BY
DAY)(NO WARRANT NECESSARY TO SEARCH A VEHICLE); ACT OF MARCH 3, 1863,
12 STAT. 737, 740(ANY PLACE OR PREMISES); ACT OF FEBRUARY 28, 1865, 13
STAT. 441, 442(BUILDINGS NEAR BOUNDARY LINES); ACT OF JULY 13, 1866, 14
STAT. 98, 152(ANY PREMISES); ACT OF MARCH 2, 1867, 14 STAT. 546,
547(ANY PREMISES); ACT OF MARCH 3, 1873, 17 STAT. 598, 599(NO
LIMITATION ON SCOPE); ACT OF APRIL 25, 1882, 22 STAT. 49(DWELLING
HOUSE, STORE-BUILDING, OR OTHER PLACE, BY DAY); ACT OF FEBRUARY 10,
1891, 26 STAT. 742, 743(ANY HOUSE, STORE, BUILDING, BOAT, OR OTHER
PLACE, BY DAY); ACT OF AUGUST 27, 1894, 28 STAT. 509, 549-50(NO
LIMITATION ON SCOPE); ACT OF JULY 24, 1897, 30 STAT. 151, 209(NO
LIMITATION ON SCOPE); ACT OF MARCH 3, 1899, 30 STAT. 1253, 1326(ANY
PLACE IN ALASKA); ACT OF MARCH 3, 1901, 31 STAT. 1189, 1337(NO
LIMITATION ON SCOPE); ACT OF AUGUST 5, 1909, 36 STAT. 11, 86(NO
LIMITATION ON SCOPE); ACT OF FEBRUARY 14, 1917, 39 STAT. 903, 906
907(ROOM, HOUSE, BUILDING, OR OTHER PLACE IN ALASKA); ACT OF JUNE 15,
1917, 40 STAT. 217, 228(BY DAY OR, ON CERTAIN CONDITIONS, NIGHT); ACT
OF JULY 3, 1918, 40 STAT. 755, 756(ANY PLACE); ACT OF OCTOBER 28, 1919,
41 STAT. 305, 308(SEE ACT OF JUNE 15, 1917, SUPRA); ACT OF SEPTEMBER
21, 1922, 42 STAT. 858, 937, 983(DWELLING HOUSE BY DAY, AND ANY STORE
OR OTHER PLACE BY NIGHT OR DAY); ACT OF JUNE 7, 1924, 43 STAT. 650,
651(NO LIMITATION ON SCOPE); ACT OF APRIL 23, 1928, 45 STAT. 448,
449(NO LIMITATION ON SCOPE); ACT OF FEBRUARY 18, 1929, 45 STAT. 1222,
1225(SEE ACT OF JULY 3, 1918, SUPRA); ACT OF JUNE 17, 1930, 46 STAT.
590, 752(DWELLING HOUSE, BY DAY, STORE, OR OTHER BUILDING OR PLACE);
ACT OF JULY 2, 1930, 46 STAT. 845, 846(NO LIMITATION ON SCOPE); ACT OF
JUNE 15, 1935, 49 STAT. 378, 381(NO LIMITATION ON SCOPE); ACT OF AUGUST
27, 1935, 49 STAT. 872, 874-875(SEE ACT OF JUNE 15, 1917, SUPRA); ACT
OF APRIL 5, 1938, 52 STAT. 198, 199(ANY PLACE IN DISTRICT OF COLUMBIA);
ACT OF FEBRUARY 10, 1939, 53 STAT. 1, 436(NO LIMITATION ON SCOPE); ACT
OF JUNE 28, 1940, 54 STAT. 670, 671(BY DAY OR, ON CERTAIN CONDITIONS,
NIGHT); ACT OF JULY 1, 1943, 57 STAT. 301, 304(NO LIMITATION ON SCOPE);
ACT OF FEBRUARY 26, 1944, 58 STAT. 100, 102(ANY PERSON, VESSEL, OR
PLACE). 

B. OBJECTS OF SEARCH AND SEIZURE. 

ACT OF JULY 31, 1789, 1 STAT. 29, 43(GOODS SUBJECT TO DUTY); ACT OF
AUGUST 4, 1790, 1 STAT. 145, 170(GOODS SUBJECT TO DUTY); ACT OF MARCH
3, 1791, 1 STAT. 199, 207(LIQUORS FRAUDULENTLY DEPOSITED, HID, OR
CONCEALED); ACT OF MARCH 2, 1799, 1 STAT. 627, 677-78(GOODS SUBJECT TO
DUTY); ACT OF APRIL 18, 1806, 2 STAT. 379, 380(ARTICLES IMPORTED FROM
GREAT BRITAIN); ACT OF MARCH 1, 1809, 2 STAT. 528, 530(ARTICLES
IMPORTED FROM GREAT BRITAIN OR FRANCE); ACT OF MARCH 3, 1815, 3 STAT.
231, 232(ARTICLES SUBJECT TO DUTY); ACT OF MARCH 3, 1863, 12 STAT. 737,
740(INVOICES, PAPERS, AND BOOKS RELATING TO CUSTOMS FRAUDS); ACT OF
FEBRUARY 28, 1865, 13 STAT. 441, 442(DUTIABLE GOODS); ACT OF JULY 13,
1866, 14 STAT. 98, 152(FRAUD ON THE REVENUE); ACT OF JULY 18, 1866, 14
STAT. 178, 187(FRAUD ON THE REVENUE); ACT OF MARCH 2, 1867, 14 STAT.
546, 547(INVOICES, BOOKS, AND PAPERS RELATING TO CUSTOMS FRAUDS); ACT
OF MARCH 3, 1873, 17 STAT. 598, 599(OBSCENE LITERATURE, LITERATURE
ABOUT CONTRACEPTIVES, CONTRACEPTIVE MATERIALS); ACT OF APRIL 25, 1882,
22 STAT. 49(MERCHANDISE ON WHICH DUTY IS UNPAID); ACT OF FEBRUARY 10,
1891, 26 STAT. 742, 743(COUNTERFEIT MONEY, COINS, ETC., AND MATERIALS
USED FOR THEIR MANUFACTURE); ACT OF AUGUST 27, 1894, 28 STAT. 509, 549
50(OBSCENE AND IMMORAL LITERATURE AND ARTICLES, LOTTERY TICKETS); ACT
OF JULY 24, 1897, 30 STAT. 151, 209(OBSCENE AND IMMORAL ARTICLES AND
LITERATURE, CONTRACEPTIVE AND ABORTIVE MATERIALS, LOTTERY TICKETS); ACT
OF MARCH 3, 1899, 30 STAT. 1253, 1327(EMBEZZLED OR STOLEN PROPERTY;
ARTICLES USED TO COMMIT A FELONY; PROPERTY TO BE USED TO COMMIT A
CRIME); ACT OF MARCH 3, 1901, 31 STAT. 1189, 1337(STOLEN OR EMBEZZLED
GOODS, COUNTERFEIT COINS, ETC., AND MATERIALS USED TO MAKE THEM,
LITERATURE OF OBSCENE NATURE, IMMORAL ARTICLES, GAMBLING EQUIPMENT,
LOTTERY TICKETS); ACT OF AUGUST 5, 1909, 36 STAT. 11, 86(OBSCENE OR
IMMORAL LITERATURE, OR ARTICLES, DRUGS, OBJECTS FOR ABORTION, LOTTERY
TICKETS); ACT OF FEBRUARY 14, 1917, 39 STAT. 903, 906-907(ILLEGALLY
HELD LIQUOR); ACT OF JUNE 15, 1917, 40 STAT. 217, 228(STOLEN OR
EMBEZZLED PROPERTY; PROPERTY USED IN COMMISSION OF A FELONY; PROPERTY
USED TO AID UNLAWFULLY A FOREIGN GOVERNMENT); ACT OF JULY 3, 1918, 40
STAT. 755, 756(ILLEGALLY SECURED MIGRATORY BIRDS OR BIRD PRODUCTS); ACT
OF OCTOBER 28, 1919, 41 STAT. 305, 308(ALCOHOLIC BEVERAGES); ACT OF
SEPTEMBER 21, 1922, 42 STAT. 858, 937, 983(OBSCENE LITERATURE, DRUGS
FOR ABORTION, CONTRACEPTIVE ITEMS, LOTTERY TICKETS; ILLEGAL IMPORTS);
ACT OF JUNE 7, 1924, 43 STAT. 650, 651(WILD LIFE AND FISH IMPROPERLY
TAKEN FROM REFUGE); ACT OF APRIL 23, 1928, 45 STAT. 448, 449(MIGRATORY
BIRDS IMPROPERLY TAKEN FROM BIRD REFUGE); ACT OF FEBRUARY 18, 1929, 45
STAT. 1222, 1225(SEE ACT OF JULY 3, 1918, SUPRA); ACT OF JUNE 17, 1930,
46 STAT. 590, 752(MERCHANDISE ON WHICH DUTIES UNPAID); ACT OF JULY 2,
1930, 46 STAT. 845, 846(ILLEGALLY CAUGHT BLACK BASS); ACT OF JUNE 15,
1935, 49 STAT. 378, 381(ILLEGALLY CAPTURED GAME AND WILD LIFE AND
PRODUCTS THEREOF SHIPPED IN INTERSTATE COMMERCE); ACT OF AUGUST 27,
1935, 49 STAT. 872, 874-75(ILLEGALLY POSSESSED LIQUOR); ACT OF APRIL 5,
1938, 52 STAT. 198, 199(LOTTERY TICKETS, GAMING DEVICES, BOOKS FOR
RECORDING GAMBLING TRANSACTIONS, STOLEN AND EMBEZZLED PROPERTY, FORGED
AND COUNTERFEIT MATERIALS, EQUIPMENT USED FOR COUNTERFEITING, OBSCENE
AND IMMORAL LITERATURE AND MATERIALS); ACT OF FEBRUARY 10, 1939, 53
STAT. 1, 436(FRAUDS ON THE REVENUE); ACT OF JUNE 28, 1940, 54 STAT.
670, 671(SUBVERSIVE MATERIALS); ACT OF JULY 1, 1943, 57 STAT. 301,
304(ALASKAN GAME ILLEGALLY TAKEN AND EQUIPMENT USED TO MAKE CAPTURES);
ACT OF FEBRUARY 26, 1944, 58 STAT. 100, 102(ILLEGALLY TAKEN SEAL
PRODUCTS AND EQUIPMENT USED TO AID IN THE TAKINGS). 

C. REQUIREMENTS FOR ISSUANCE OF WARRANT. 

ACT OF JULY 31, 1789, 1 STAT. 29, 43(SUSPICION OF CONCEALMENT OF
GOODS, APPLICATION ON OATH OR AFFIRMATION BEFORE JUSTICE OF THE PEACE);
ACT OF AUGUST 4, 1790, 1 STAT. 145, 170(SUSPICION OF CONCEALMENT,
APPLICATION ON OATH OR AFFIRMATION BEFORE JUSTICE OF THE PEACE); ACT OF
MARCH 3, 1791, 1 STAT. 199, 207(OATH OR AFFIRMATION, ESTABLISHING
GROUNDS FOR REASONABLE CAUSE FOR SUSPICION, BEFORE U.S. JUDGE OR
JUSTICE OF THE PEACE); ACT OF MARCH 2, 1799, 1 STAT. 627, 677
78(SUSPICION OF CONCEALMENT, APPLICATION, ON OATH, TO JUSTICE OF THE
PEACE); ACT OF APRIL 18, 1806, 2 STAT. 379, 380(SAME); ACT OF MARCH 1,
1809, 2 STAT. 528, 530(SAME); ACT OF MARCH 3, 1815, 3 STAT. 231,
232(SUSPICION OF CONCEALMENT, PROPER APPLICATION, ON OATH, TO ANY JUDGE
OR JUSTICE OF THE PEACE); ACT OF MARCH 3, 1863, 12 STAT. 737,
740(AFFIDAVIT ESTABLISHING FRAUD OR ATTEMPTED FRAUD TO SATISFACTION OF
U.S. DISTRICT JUDGE); ACT OF FEBRUARY 28, 1865, 13 STAT. 441, 442(OATH
SHOWING BELIEF OR REASON TO BELIEVE THAT SMUGGLED GOODS ARE KEPT ON THE
PREMISES); ACT OF JULY 13, 1866, 14 STAT. 98, 152(OATH IN WRITING
BEFORE U.S. CIRCUIT OR DISTRICT JUDGE OR COMMISSIONER, SETTING FORTH
BELIEF OR REASON TO BELIEVE FRAUD ON REVENUE COMMITTED ON PREMISES);
ACT OF JULY 18, 1866, 14 STAT. 178, 187(MAY BE ISSUED BY ANY DISTRICT
JUDGE); ACT OF MARCH 2, 1867, 14 STAT. 546, 547(COMPLAINT AND
AFFIDAVIT, TO SATISFACTION OF U.S. DISTRICT JUDGE, OF CUSTOMS FRAUD);
ACT OF MARCH 3, 1873, 17 STAT. 598, 599(WRITTEN COMPLAINT OF VIOLATION
OF STATUTE, BEFORE U.S. DISTRICT OR CIRCUIT JUDGE, SETTING FORTH BELIEF
OR BASIS FOR BELIEF, TO SATISFACTION OF JUDGE, SUPPORTED BY OATH OR
AFFIRMATION); ACT OF APRIL 25, 1882, 22 STAT. 49(PROPER APPLICATION, ON
OATH, TO JUSTICE OF THE PEACE, DISTRICT JUDGE OF CITIES, POLICE
JUSTICE, OR U.S. DISTRICT OR CIRCUIT JUDGE); ACT OF FEBRUARY 10, 1891,
26 STAT. 742, 743(PROPER OATH OR AFFIRMATION, SHOWING PROBABLE CAUSE
FOR BELIEF THAT STATUTE IS BEING VIOLATED).  ACT OF AUGUST 27, 1894, 28
STAT. 509, 549-50(COMPLAINT IN WRITING, FOUNDED ON KNOWLEDGE OR BELIEF,
SETTING FORTH GROUNDS FOR BELIEF, SUPPORTED BY OATH OR AFFIRMATION, TO
THE SATISFACTION OF U.S. DISTRICT OR CIRCUIT JUDGE); ACT OF JULY 24,
1897, 30 STAT. 151, 209(COMPLAINT IN WRITING OF VIOLATION OF ACT, TO
SATISFACTION OF U.S. DISTRICT OR CIRCUIT JUDGE, FOUNDED ON KNOWLEDGE OR
BELIEF, SETTING FORTH BASIS FOR BELIEF, AND SUPPORTED BY OATH OR
AFFIRMATION); ACT OF MARCH 3, 1899, 30 STAT. 1253, 1327(PROBABLE CAUSE,
SHOWN BY AFFIDAVIT, NAMING OR DESCRIBING PERSON, DESCRIBING THE
PROPERTY AND THE PLACE TO BE SEARCHED, TO THE SATISFACTION OF AN
EXAMINING MAGISTRATE); ACT OF MARCH 3, 1901, 31 STAT. 1189,
1337(COMPLAINT, UNDER OATH, BEFORE POLICE COURT OR JUSTICE OF THE
PEACE, SETTING FORTH BELIEF AND CAUSE FOR BELIEF OF CONCEALMENT IN ANY
PLACE OF SPECIFIED ARTICLES, DESCRIBING THE PLACE TO BE SEARCHED AND
THE PROPERTY TO BE SEIZED); ACT OF AUGUST 5, 1909, 36 STAT. 11,
86(COMPLAINT IN WRITING BEFORE U.S. CIRCUIT OR DISTRICT JUDGE OF
VIOLATION OF ACT, TO THE SATISFACTION OF THE JUDGE, SETTING FORTH
GROUNDS FOR BELIEF AND SUPPORTED BY OATH OR AFFIRMATION, A WARRANT MAY
ISSUE "CONFORMABLY TO THE CONSTITUTION"); ACT OF FEBRUARY 14, 1917, 39
STAT. 903, 906-907(CHARGE, ON OATH OR AFFIRMATION, BEFORE ALASKAN
DISTRICT ATTORNEY, OF VIOLATION OF PROHIBITION LAWS; PLACE WHERE
VIOLATION OCCURRED TO BE SPECIFICALLY DESCRIBED); ACT OF JUNE 15, 1917,
40 STAT. 217, 228-29(AFFIDAVITS OR DEPOSITIONS, SETTING FORTH FACTS
ESTABLISHING GROUNDS OR PROBABLE CAUSE FOR BELIEF THAT GROUNDS EXIST,
BEFORE U.S. OR STATE JUDGE, OR U.S. COMMISSIONER); ACT OF JULY 3, 1918,
40 STAT. 755, 756(PROPER OATH OR AFFIRMATION BEFORE U.S. JUDGE OR
COMMISSIONER, SHOWING PROBABLE CAUSE OF VIOLATION OF THE STATUTE); ACT
OF OCTOBER 28, 1919, 41 STAT. 305, 308(SEE ACT OF JUNE 15, 1917,
SUPRA); ACT OF SEPTEMBER 21, 1922, 42 STAT. 858, 937, 983(COMPLAINT IN
WRITING BEFORE U.S. DISTRICT JUDGE, ALLEGING VIOLATION OF STATUTE,
FOUNDED ON PROBABLE CAUSE AND SUPPORTED BY OATH OR AFFIRMATION AND
CONFORMABLE TO THE REQUIREMENTS OF THE CONSTITUTION; CAUSE TO SUSPECT
PRESENCE OF DUTIABLE GOODS, APPLICATION UNDER OATH BEFORE JUSTICE OF
THE PEACE, LOCAL, STATE, OR FEDERAL JUDGES, OR U.S. COMMISSIONER); ACT
OF JUNE 7, 1924, 43 STAT. 650, 651(PROPER OATH OR AFFIRMATION BEFORE
U.S. JUDGE OR COMMISSIONER SHOWING PROBABLE CAUSE OF VIOLATION).  ACT
OF APRIL 23, 1928, 45 STAT. 448, 449(PROPER OATH OR AFFIRMATION, BEFORE
U.S. JUDGE OR COMMISSIONER, SHOWING PROBABLE CAUSE OF VIOLATION OF
STATUTE); ACT OF FEBRUARY 18, 1929, 45 STAT. 1222, 1225(SEE ACT OF JULY
3, 1918, SUPRA); ACT OF JUNE 17, 1930, 46 STAT. 590, 752(SUSPICION OF
CONCEALMENT OF DUTIABLE GOODS, APPLICATION UNDER OATH TO ANY JUSTICE OF
THE PEACE, LOCAL, STATE, OR FEDERAL JUDGE, OR U.S. COMMISSIONER); ACT
OF JULY 2, 1930, 46 STAT. 845, 846(PROPER OATH OR AFFIRMATION BEFORE
U.S. JUDGE OR COMMISSIONER ESTABLISHING PROBABLE CAUSE THAT STATUTE WAS
VIOLATED); ACT OF JUNE 15, 1935, 49 STAT. 378, 381(PROPER OATH OR
AFFIRMATION BEFORE U.S. JUDGE OR COMMISSIONER ESTABLISHING PROBABLE
CAUSE THAT STATUTE VIOLATED); ACT OF AUGUST 27, 1935, 49 STAT. 872, 874
75(SEE ACT OF JUNE 15, 1917, SUPRA); ACT OF APRIL 5, 1938, 52 STAT.
198, 199(COMPLAINT UNDER OATH, BEFORE THE POLICE COURT FOR THE DISTRICT
OF COLUMBIA, OR U.S. COMMISSIONER, SETTING FORTH BELIEF OR CAUSE FOR
BELIEF, PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, THE ARTICLES
TO BE SEIZED); ACT OF FEBRUARY 10, 1939, 53 STAT. 1, 436(OATH IN
WRITING BEFORE U.S. DISTRICT JUDGE OR COMMISSIONER, SETTING FORTH
REASON TO BELIEVE THAT FRAUD ON REVENUE COMMITTED OR BEING COMMITTED);
ACT OF JUNE 28, 1940, 54 STAT. 670, 671(SEE ACT OF JUNE 15, 1917,
SUPRA); ACT OF JULY 1, 1943, 57 STAT. 301, 304(PROPER OATH OR
AFFIRMATION, SHOWING PROBABLE CAUSE OF VIOLATION OF ALASKAN GAME LAWS,
BEFORE U.S. JUDGE OR COMMISSIONER); ACT OF FEBRUARY 26, 1944, 58 STAT.
100, 102(OATH OR AFFIRMATION BEFORE U.S. JUDGE OR COMMISSIONER, SHOWING
PROBABLE CAUSE OF VIOLATION OF STATUTE). 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I AM SUBSTANTIALLY IN ACCORD WITH THE VIEWS EXPRESSED BY MR. JUSTICE
FRANKFURTER IN HIS EXHAUSTIVE OPINION AS TO THE CONTROLLING PRINCIPLES
WHICH SHOULD GOVERN IN THE DISPOSITION OF THIS CASE.  PERHAPS IT SHOULD
BE ADDED THAT THE EVIDENCE DOES NOT CLEARLY SHOW THAT THE OFFICER WHO
FLASHED THE LIGHT INTO THE WINDOW WAS IN FACT ATTEMPTING TO OPEN IT BY
FORCE OR TO DO MORE THAN OBSERVE THE INTERIOR.  BUT THE SITUATION WAS
SUCH THAT HIS ACTION CLEARLY CREATED IN DAVIS' MIND THE IMPRESSION THAT
HE EITHER WAS ENTERING BY FORCE OR INTENDED TO DO SO.  IT THEREFORE
MUST BE TAKEN, I THINK, THAT DAVIS' SO-CALLED CONSENT WAS INDUCED BY
THIS APPARENT COMPULSION, THE VERY KIND OF THING THE FOURTH AMENDMENT
WAS DESIGNED TO PREVENT.  THERE WAS NO SUCH CONSENT AS WOULD LEGALIZE
THE ENTRY AND SEARCH.    MOREOVER, WHATEVER MAY BE THE SCOPE OF SEARCH
INCIDENT TO LAWFUL ARREST FOR A MISDEMEANOR, I KNOW OF NO DECISION
WHICH GOES SO FAR AS TO RULE THAT THIS RIGHT OF SEARCH EXTENDS TO
BREAKING AND ENTERING LOCKED PREMISES BY FORCE.  THAT WAS NOT DONE
HERE.  BUT THE SEARCH FOLLOWED ON CONSENT GIVEN IN THE REASONABLE
BELIEF THAT IT WAS NECESSARY TO AVOID THE BREAKING AND ENTRY.  I THINK
IT WAS THEREFORE IN NO BETTER CASE LEGALLY THAN IF IN FACT THE BREAKING
AND FORCEABLE ENTRY HAD OCCURRED.  THE SEARCH WAS JUSTIFIED NEITHER BY
CONSENT NOR BY THE DOCTRINE OF REASONABLE SEARCH AS INCIDENT TO A
LAWFUL ARREST. 
..END :














ZAP V. UNITED STATES, 328 U.S. 624 


NO. 489.  ARGUED FEBRUARY 5, 6, 1946.  - DECIDED JUNE 10, 1946.  - 151
F.2D 100, AFFIRMED. 


1.  PETITIONER WAS UNDER CONTRACT TO DO EXPERIMENTAL WORK FOR THE
NAVY.  PURSUANT TO THE TERMS OF THE CONTRACT AND AUTHORITY DELEGATED TO
THEM UNDER SEC. 10(1) OF THE ACT OF JULY 2, 1926, AND SEC. 1301 OF THE
SECOND WAR POWERS ACT, AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION
WERE AUDITING HIS BOOKS AND RECORDS AT HIS PLACE OF BUSINESS DURING
BUSINESS HOURS WITH THE CONSENT AND COOPERATION OF HIS EMPLOYEES.  ONE
OF THE AGENTS REQUESTED, AND WAS GIVEN BY PETITIONER'S BOOKKEEPER, A
CERTAIN CANCELLED CHECK, WHICH WAS LATER ADMITTED IN EVIDENCE OVER
PETITIONER'S OBJECTION IN A TRIAL WHICH RESULTED IN HIS CONVICTION FOR
DEFRAUDING THE GOVERNMENT BY MEANS OF THAT CHECK.  HELD:  THIS DID NOT
VIOLATE HIS RIGHTS UNDER THE FOURTH AND FIFTH AMENDMENTS.  PP. 628
630. 

2.  WHEN PETITIONER, IN ORDER TO OBTAIN THE GOVERNMENT'S BUSINESS,
SPECIFICALLY AGREED TO PERMIT INSPECTION OF HIS ACCOUNTS AND RECORDS,
HE VOLUNTARILY WAIVED SUCH CLAIMS TO PRIVACY WHICH HE OTHERWISE MIGHT
HAVE HAD AS RESPECTS BUSINESS DOCUMENTS RELATED TO THOSE CONTRACTS.  P.
628. 

3.  THE POWERS OF INSPECTION WERE NOT TRANSCENDED, SINCE THE
INSPECTION WAS MADE DURING REGULAR HOURS, AT THE PLACE OF BUSINESS,
WITH THE FULL COOPERATION OF PETITIONER'S STAFF, AND WITHOUT FORCE OR
THREAT OF FORCE.  P. 628. 

4.  AS A RESULT OF ITS CONTRACT WITH PETITIONER AND THE RELEVANT
STATUTES, THE GOVERNMENT HAD AUTHORITY TO INSPECT PETITIONER'S BOOKS
AND RECORDS AND TO UTILIZE AGENTS OF THE FEDERAL BUREAU OF
INVESTIGATION FOR THIS PURPOSE.  PP. 628, 629. 

5.  THE SEARCH BEING LAWFUL, THE AGENTS COULD TESTIFY AS TO THE FACTS
ABOUT WHICH THEY HAD OBTAINED KNOWLEDGE, INCLUDING THE FACTS DISCLOSED
BY THE CHECK.  P. 629. 

6.  TO REQUIRE REVERSAL MERELY BECAUSE THE CHECK ITSELF WAS ADMITTED
IN EVIDENCE WOULD BE TO EXALT A TECHNICALITY TO CONSTITUTIONAL LEVELS. 
P. 630. 

7.  IT WAS IN THE SOUND DISCRETION OF THE DISTRICT COURT TO ADMIT THE
CHECK IN EVIDENCE.  P. 630. 

ZAP V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PETITIONER WAS CONVICTED OF DEFRAUDING THE GOVERNMENT IN VIOLATION OF
SEC. 35(A) OF THE CRIMINAL CODE.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  151 F.2D 100.  THIS COURT GRANTED CERTIORARI LIMITED TO THE
QUESTION WHETHER BOOKS AND RECORDS RELATING TO HIS CONTRACT WITH THE
NAVY DEPARTMENT WERE PROPERLY ADMITTED AS EVIDENCE AT HIS TRIAL.  326
U.S. 802.  AFFIRMED, P. 630. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI FROM A
JUDGMENT AFFIRMING THE CONVICTION OF PETITIONER FOR VIOLATION OF SEC.
35(A) OF THE CRIMINAL CODE, 18 U.S.C. SEC. 80.  FN1 151 F.2D 100. 

PETITIONER ENTERED INTO CONTRACTS WITH THE NAVY DEPARTMENT UNDER
WHICH HE WAS TO DO EXPERIMENTAL WORK ON AIRPLANE WINGS AND TO CONDUCT
TEST FLIGHTS.  HE WAS TO BE PAID ON A COST-PLUS-FIXED-FEE BASIS.  HE
ARRANGED WITH A PILOT TO MAKE CERTAIN TEST FLIGHTS AND PAID HIM ABOUT
$2,500.  PRIOR TO THE TEST FLIGHTS, HE HAD THE PILOT ENDORSE A BLANK
CHECK, TELLING HIM THAT IT WAS TO BE USED TO DEFRAY THE EXPENSES OF THE
TEST.  HE THEN FILLED IN THE TEST PILOT'S NAME AS PAYEE AND $4,000 AS
THE AMOUNT OF THE CHECK.  THE CHECK WAS POSTED IN PETITIONER'S BOOKS OF
ACCOUNT AS A PAYMENT TO THE TEST PILOT.  LATER PETITIONER PRESENTED TO
THE NAVY DEPARTMENT A VOUCHER FOR WORK UNDER HIS CONTRACT.  SUPPORTING
THE CLAIM WAS A DOCUMENT IN WHICH HE CERTIFIED THAT HE HAD PAID THE
TEST PILOT $4,000. 

CONGRESS HAS PROVIDED FOR THE INSPECTION AND AUDIT OF BOOKS AND
RECORDS OF CONTRACTORS SUCH AS PETITIONER.  FN2  THE INSPECTION AND
AUDIT WERE AUTHORIZED TO BE MADE "BY A GOVERNMENTAL AGENCY OR OFFICER
DESIGNATED BY THE PRESIDENT, OR BY THE CHAIRMAN OF THE WAR PRODUCTION
BOARD."  FN3 CERTAIN OFFICIALS OF THE GOVERNMENT, INCLUDING THE
SECRETARY OF THE NAVY, WERE AUTHORIZED TO EXERCISE THE POWER; AND THEY
WERE ALSO DELEGATED THE POWER TO "AUTHORIZE SUCH OFFICER OR OFFICERS OR
CIVILIAN OFFICIALS OF THEIR RESPECTIVE DEPARTMENTS OR AGENCIES TO MAKE
FURTHER DELEGATIONS OF SUCH POWERS AND AUTHORITY WITHIN THEIR
RESPECTIVE DEPARTMENTS AND AGENCIES."  FN4  AND PETITIONER'S CONTRACT
WITH THE NAVY DEPARTMENT PROVIDED:  "THE ACCOUNTS AND RECORDS OF THE
CONTRACTOR SHALL BE OPEN AT ALL TIMES TO THE GOVERNMENT AND ITS
REPRESENTATIVES, AND SUCH STATEMENTS AND RETURNS RELATIVE TO COSTS
SHALL BE MADE AS MAY BE DIRECTED BY THE GOVERNMENT." 

FOR SEVERAL WEEKS IN 1942, AGENTS OF THE FEDERAL BUREAU OF
INVESTIGATION CONDUCTED AN AUDIT OF PETITIONER'S BOOKS AND RECORDS AT
HIS PLACE OF BUSINESS AND DURING BUSINESS HOURS.  THEY ACTED UNDER THE
AUSPICES AND BY THE AUTHORITY OF AN ACCOUNTANT AND A COST INSPECTOR OF
THE NAVY DEPARTMENT UNDER WHOSE JURISDICTION PETITIONER'S BOOKS AND
RECORDS HAD BEEN PLACED FOR PURPOSES OF AUDIT AND INSPECTION.  DURING
PART OF THIS PERIOD, PETITIONER WAS ABSENT.  BUT WHILE HE WAS AWAY, HIS
EMPLOYEES GRANTED THE AGENTS ADMISSION AND COOPERATED WITH THEM BY
SUPPLYING RECORDS AND FURNISHING INFORMATION.  WHEN PETITIONER RETURNED
TO THE CITY, HE MADE SOME PROTEST AGAINST THE EXAMINATION.  BUT THE
AGENTS DID NOT DESIST AND CONTINUED TO MAKE THE EXAMINATION WITH THE
ASSISTANCE OF PETITIONER'S EMPLOYEES.  THE $4,000 CHECK WAS REQUESTED
AND IT WAS GIVEN TO ONE OF THE AGENTS BY PETITIONER'S BOOK-KEEPER.  IT
APPEARS THAT THE CHECK WAS RETAINED BY THE AGENT  FN5 AND WAS
INTRODUCED AT THE TRIAL.  THE TRIAL JUDGE DENIED A MOTION TO SUPPRESS
THE EVIDENCE.  AT THE TRIAL, PETITIONER DID NOT OBJECT TO THE ADMISSION
OF THE CHECK IN EVIDENCE BUT LATER MOVED TO HAVE IT STRICKEN ON THE
GROUND THAT IT HAD BEEN ILLEGALLY OBTAINED.  THE SINGLE QUESTION TO
WHICH WE LIMITED THE GRANT OF THE PETITION FOR A WRIT OF CERTIORARI IS
THE PROPRIETY OF THE ACTION OF THE DISTRICT COURT IN ALLOWING THE CHECK
TO BE ADMITTED. 

AS WE HAVE POINTED OUT IN DAVIS V. UNITED STATES, ANTE, P. 582, THE
LAW OF SEARCHES AND SEIZURES AS REVEALED IN THE DECISIONS OF THIS COURT
IS THE PRODUCT OF THE INTERPLAY OF THE FOURTH AND FIFTH AMENDMENTS. 
BUT THOSE RIGHTS MAY BE WAIVED.  AND WHEN PETITIONER, IN ORDER TO
OBTAIN THE GOVERNMENT'S BUSINESS, SPECIFICALLY AGREED TO PERMIT
INSPECTION OF HIS ACCOUNTS AND RECORDS, HE VOLUNTARILY WAIVED SUCH
CLAIM TO PRIVACY WHICH HE OTHERWISE MIGHT HAVE HAD AS RESPECTS BUSINESS
DOCUMENTS RELATED TO THOSE CONTRACTS.  WHATEVER MAY BE THE LIMITS OF
THAT POWER OF INSPECTION, THEY WERE NOT TRANSCENDED HERE.  FOR THE
INSPECTION WAS MADE DURING REGULAR HOURS AT THE PLACE OF BUSINESS.  NO
FORCE OR THREAT OF FORCE WAS EMPLOYED.  INDEED, THE INSPECTION WAS MADE
WITH THE FULL COOPERATION OF PETITIONER'S STAFF.  THERE IS SOME
SUGGESTION THAT THE SEARCH WAS UNREASONABLE BECAUSE MADE BY AGENTS OF
THE FEDERAL BUREAU OF INVESTIGATION WHO WERE NOT PERSONS AUTHORIZED TO
CONDUCT THOSE EXAMINATIONS.  BUT THEY ACTED UNDER THE AUSPICES AND WITH
THE AUTHORITY OF REPRESENTATIVES OF THE NAVY DEPARTMENT WHO WERE
AUTHORIZED TO INSPECT.  THE INSPECTION WAS NEVERTHELESS AN INSPECTION
BY THE NAVY, THOUGH ITS OFFICIALS WERE AIDED BY AGENTS OF ANOTHER
DEPARTMENT.  FN6  MOREOVER, THE RIGHT TO INSPECT GRANTED BY THE
CONTRACTS WAS NOT LIMITED TO INSPECTIONS BY THE NAVY BUT EXTENDED TO
INSPECTIONS BY ANY AUTHORIZED REPRESENTATIVES OF THE GOVERNMENT, AMONG
WHOM THE AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION ARE INCLUDED. 

THE AGENTS, THEREFORE, WERE LAWFULLY ON THE PREMISES.  THEY OBTAINED
BY LAWFUL MEANS ACCESS TO THE DOCUMENTS.  THAT MUCH AT LEAST WAS
GRANTED BY THE CONTRACTUAL AGREEMENT FOR INSPECTION.  THEY WERE NOT
TRESPASSERS.  THEY DID NOT OBTAIN ACCESS BY FORCE, FRAUD, OR TRICKERY. 
THUS THE KNOWLEDGE THEY ACQUIRED CONCERNING PETITIONER'S CONDUCT UNDER
THE CONTRACT WITH THE GOVERNMENT WAS LAWFULLY OBTAINED.  NEITHER THE
FOURTH NOR FIFTH AMENDMENT WOULD PRECLUDE THE AGENTS FROM TESTIFYING AT
THE TRIAL CONCERNING THE FACTS ABOUT WHICH THEY HAD LAWFULLY OBTAINED
KNOWLEDGE.  SEE PAPER V. UNITED STATES, 53 F.2D 184, 185; IN RE SANA
LABORATORIES, INC., 115 F.2D 717, 718.  EVEN THOUGH IT BE ASSUMED IN
PASSING THAT THE TAKING OF THE CHECK WAS UNLAWFUL, THAT WOULD NOT MAKE
INADMISSIBLE IN EVIDENCE THE KNOWLEDGE WHICH HAD BEEN LEGALLY
OBTAINED.  UNITED STATES V. LEE, 274 U.S. 559, 563.  THE AGENTS DID NOT
BECOME TRESPASSERS AB INITIO WHEN THEY TOOK THE CHECK.  SEE MCGUIRE V.
UNITED STATES, 273 U.S. 95.  HAD THE CHECK BEEN RETURNED TO PETITIONER
ON THE MOTION TO SUPPRESS, A WARRANT FOR IT COULD HAVE BEEN IMMEDIATELY
ISSUED.  FN7  OR, DURING THE INSPECTION, THE AGENTS COULD HAVE TAKEN
PHOTOSTATS OR MADE COPIES OF THE CHECK AND OFFERED THEM IN EVIDENCE
WITHOUT PRODUCING THE ORIGINALS.  LISANSKY V. UNITED STATES, 31 F.2D
846, 850-851.  DARBY V. UNITED STATES, 132 F.2D 928, 929.  THE
AGREEMENT TO ALLOW AN INSPECTION CARRIED CONSEQUENCES AT LEAST SO
GREAT.  THE QUESTION THEREFORE IS A NARROW ONE.  IT IS WHETHER THE
CHECK ITSELF COULD BE INTRODUCED AT THE TRIAL. 

WEEKS V. UNITED STATES, 232 U.S. 383, HELD THAT PRIVATE PROPERTY
OBTAINED AS A RESULT OF AN UNLAWFUL SEARCH AND SEIZURE COULD NOT BE
USED AS EVIDENCE IN A CRIMINAL PROSECUTION OF THE OWNER.  AS EXPLAINED
IN SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385, 392, THE
EVIDENCE SO OBTAINED IS SUPPRESSED ON THE THEORY THAT THE GOVERNMENT
MAY NOT PROFIT FROM ITS OWN WRONGDOING.  BUT AS STATED IN MCGUIRE V.
UNITED STATES, SUPRA, P. 99, "A CRIMINAL PROSECUTION IS MORE THAN A
GAME IN WHICH THE GOVERNMENT MAY BE CHECKMATED AND THE GAME LOST MERELY
BECAUSE ITS OFFICERS HAVE NOT PLAYED ACCORDING TO RULE."  TO REQUIRE
REVERSAL HERE WOULD BE TO EXALT A TECHNICALITY TO CONSTITUTIONAL
LEVELS.  THE SEARCH AND THE DISCOVERY WERE WHOLLY LAWFUL.  A SEARCH
WARRANT WOULD BE MERELY THE MEANS OF INSURING THE PRODUCTION IN COURT
OF THE PRIMARY SOURCE OF EVIDENCE OTHERWISE ADMISSIBLE.  THOUGH CONSENT
TO THE INSPECTION DID NOT INCLUDE CONSENT TO THE TAKING OF THE CHECK,
THERE WAS NO WRONGDOING IN THE METHOD BY WHICH THE INCRIMINATING
EVIDENCE WAS OBTAINED.  THE WAIVER OF SUCH RIGHTS TO PRIVACY AND TO
IMMUNITY AS PETITIONER HAD RESPECTING THIS BUSINESS UNDERTAKING FOR THE
GOVERNMENT MADE ADMISSIBLE IN EVIDENCE ALL THE INCRIMINATING FACTS.  WE
CANNOT EXTEND THE RULE OF THE WEEKS CASE SO FAR AS TO BAR ABSOLUTELY
THE CHECK ITSELF.  IT WAS IN THE SOUND DISCRETION OF THE DISTRICT COURT
TO ADMIT IT.  AFFIRMED. 

FN1  "WHOEVER SHALL MAKE OR CAUSE TO BE MADE OR PRESENT OR CAUSE TO
BE PRESENTED, FOR PAYMENT OR APPROVAL, TO OR BY ANY PERSON OR OFFICER
IN THE CIVIL, MILITARY, OR NAVAL SERVICE OF THE UNITED STATES, OR ANY
DEPARTMENT THEREOF, OR 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 DEPARTMENT OR OFFICER THEREOF, OR ANY
CORPORATION IN WHICH THE UNITED STATES OF AMERICA IS A STOCKHOLDER,
KNOWING SUCH CLAIM TO BE FALSE, FICTITIOUS, OR FRAUDULENT; OR WHOEVER
SHALL KNOWINGLY AND WILLFULLY FALSIFY OR CONCEAL OR COVER UP BY ANY
TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKE OR CAUSE TO BE MADE
ANY FALSE OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKE OR USE
OR CAUSE TO BE MADE OR USED ANY FALSE BILL, RECEIPT, VOUCHER, ROLL,
ACCOUNT, CLAIM, CERTIFICATE, AFFIDAVIT, OR DEPOSITION, KNOWING THE SAME
TO CONTAIN ANY FRAUDULENT OR FICTITIOUS STATEMENT OR ENTRY 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." 

FN2  SEC. 10(1) OF THE ACT OF JULY 2, 1926, 44 STAT. 787, 10 U.S.C.
SEC. 310(1) PROVIDES:  "THE MANUFACTURING PLANT, AND BOOKS, OF ANY
CONTRACTOR FOR FURNISHING OR CONSTRUCTING AIRCRAFT, AIRCRAFT PARTS, OR
AERONAUTICAL ACCESSORIES, FOR THE WAR DEPARTMENT OR THE NAVY
DEPARTMENT, OR SUCH PART OF ANY MANUFACTURING PLANT AS MAY BE SO
ENGAGED, SHALL AT ALL TIMES BE SUBJECT TO INSPECTION AND AUDIT BY ANY
PERSON DESIGNATED BY THE HEAD OF ANY EXECUTIVE DEPARTMENT OF THE
GOVERNMENT." 

TITLE XIII, SEC. 1301 OF THE SECOND WAR POWERS ACT OF MARCH 27, 1942,
56 STAT. 185, 50 U.S.C. APP. SUPP. IV, SEC. 643 PROVIDES:  "THE
PROVISIONS OF SECTION 10(1) OF AN ACT APPROVED JULY 2, 1926(44 STAT.
787; 10 U.S.C. SEC. 310(1))(GIVING THE GOVERNMENT THE RIGHT TO INSPECT
THE PLANT AND AUDIT THE BOOKS OF CERTAIN CONTRACTORS), SHALL APPLY TO
THE PLANT, BOOKS, AND RECORDS OF ANY CONTRACTOR WITH WHOM A DEFENSE
CONTRACT HAS BEEN PLACED AT ANY TIME AFTER THE DECLARATION OF EMERGENCY
ON SEPTEMBER 8, 1939, AND BEFORE THE TERMINATION OF THE PRESENT WAR:
PROVIDED, THAT, FOR THE PURPOSE OF THIS TITLE, THE TERM 'DEFENSE
CONTRACT' SHALL MEAN ANY CONTRACT, SUBCONTRACT, OR ORDER PLACED IN
FURTHERANCE OF THE DEFENSE OR WAR EFFORT:  AND PROVIDED FURTHER, THAT
THE INSPECTION AND AUDIT AUTHORIZED HEREIN, AND THE DETERMINATION
WHETHER A GIVEN CONTRACT IS A 'DEFENSE CONTRACT' AS DEFINED ABOVE,
SHALL BE MADE BY A GOVERNMENTAL AGENCY OR OFFICER DESIGNATED BY THE
PRESIDENT, OR BY THE CHAIRMAN OF THE WAR PRODUCTION BOARD."  SEE H.
REP. NO. 1765, 77TH CONG., 2D SESS., PP. 12-13; S. REP. NO. 989, 77TH
CONG., 2D SESS., P. 9. 

FN3  SEE SEC. 1301 SUPRA, NOTE 2. 

FN4  EXECUTIVE ORDER NO. 9127, ISSUED APRIL 10, 1942, 7 FED. REG.
2753. 

FN5  WE ACCEPT THAT VERSION OF THE EPISODE.  THE OTHER VERSION IS
THAT THE CHECK WAS OBTAINED UNDER A SEARCH WARRANT.  BUT THE WARRANT
WAS ADMITTEDLY DEFECTIVE.  SO WE TREAT THE CASE AS ONE WHERE THE CHECK
WAS SEIZED WITHOUT A WARRANT. 

FN6  SEE CRAVENS V. UNITED STATES, 62 F.2D 261, 265. 

FN7  THE SEARCH WARRANT ACT, 40 STAT. 228, 18 U.S.C. SEC. 612,
PERMITS THE ISSUANCE OF A SEARCH WARRANT FOR PROPERTY USED "AS THE
MEANS OF COMMITTING A FELONY  ..." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE MURPHY AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING. 

THE VIEWS EXPRESSED IN MY DISSENTING OPINION IN DAVIS V. UNITED
STATES, DECIDED THIS DAY, ANTE, P. 594, LIKEWISE COMPEL ME TO DISSENT
IN THIS CASE. 

THE PETITIONER IS AN AERONAUTICAL ENGINEER.  HE MADE A CONTRACT WITH
THE NAVY DEPARTMENT TO PERFORM EXPERIMENTAL WORK.  IN JUNE, 1942, THE
NAVY AGREED THAT ZAP SHOULD CARRY OUT TEST FLIGHTS TO DETERMINE THE
VALUE OF HIS EXPERIMENTAL WORK.  THE TESTS WERE TO BE PAID FOR BY THE
NAVY ON A COST-PLUS-A-FIXED-FEE BASIS.  ZAP ESTIMATED THAT THE COST OF
THESE FLIGHTS WOULD BE $4,000, BUT HE MADE ARRANGEMENTS FOR THE TESTS
AT A FEE OF $2,500.  PRIOR TO THE FLIGHTS, THE TEST PILOT INDORSED A
BLANK CHECK WHICH HE RETURNED TO THE PETITIONER.  THE PETITIONER'S
AUDITOR INSTRUCTED THE BOOKKEEPER TO MAKE THE CHECK FOR $4,000 AND
DEPOSIT IT IN THE PETITIONER'S ACCOUNT.  THE CHECK WAS POSTED ON THE
PETITIONER'S BOOKS FOR PAYMENT TO THE PILOT, THOUGH IN FACT THE PILOT
RECEIVED ONLY $2,500. 

IN OCTOBER, 1942, PETITIONER PRESENTED A VOUCHER TO THE NAVY FOR
REIMBURSEMENT FOR THE MONEY LAID OUT IN MAKING THE TESTS.  THE VOUCHER
WAS SUPPORTED BY A REFERENCE TO THE CHECK FOR $4,000.  FROM OCTOBER 20,
TO DECEMBER 1, 1942, TWO F.B.I. AGENTS CONDUCTED AN AUDIT OF THE
PETITIONER'S BOOKS AND PAPERS, UNDER THE AUSPICES OF AN ACCOUNTANT AND
INSPECTOR OF THE NAVY.  DURING THIS INVESTIGATION ONE OF THE F.B.I.
AGENTS DEMANDED AND RECEIVED THE CANCELLED CHECK FOR $4,000 MADE OUT TO
THE PILOT AND ENDORSED BY HIM.  THE AGENT RETAINED THE CHECK.  ON
DECEMBER 1, 1942, ONE OF THE AGENTS SWORE OUT AN AFFIDAVIT ON THE BASIS
OF WHICH A SEARCH WARRANT WAS ISSUED FOR THE BOOKS AND PAPERS OF THE
PETITIONER, AND THESE BOOKS AND PAPERS WERE TAKEN UNDER THE WARRANT. 
THE WARRANT, IT IS CONCEDED, WAS DEFECTIVE, INASMUCH AS THE AFFIDAVIT
FAILED TO SHOW THE NECESSARY PROBABLE CAUSE FOR THE BELIEF THAT THE
PETITIONER HAD COMMITTED AN OFFENSE TO WARRANT THE SEIZURE.    THE
PETITIONER WAS CONVICTED OF DEFRAUDING THE GOVERNMENT.  CRIMINAL CODE,
SEC. 35(A), 35 STAT. 1088, 1095, 40 STAT. 1015, 48 STAT. 996, 52 STAT.
197, 18 U.S.C. SEC. 80.  HE MADE A TIMELY MOTION TO SUPPRESS THE
CANCELLED CHECK AND OTHER RECORDS.  THE MOTION WAS DENIED, THE
DOCUMENTS WERE ADMITTED IN EVIDENCE, CONVICTION AND ITS AFFIRMANCE
FOLLOWED.  151 F.2D 100.  THE SOLE QUESTION BEFORE US IS THE VALIDITY
OF THE SEIZURE. 

I AGREE THAT THE GOVERNMENT HAD AUTHORITY, AS A RESULT OF ITS
CONTRACT WITH THE PETITIONER AND THE RELEVANT STATUTES, TO INSPECT THE
PETITIONER'S BOOKS AND RECORDS, 44 STAT. 780, 787, 10 U.S.C. SEC.
310(1), 56 STAT. 176, 185, 50 U.S.C. APP. SEC. 643, AND THAT THE NAVY
DEPARTMENT COULD UTILIZE MEMBERS OF THE F.B.I. FOR THIS PURPOSE. 
ACCORDINGLY, THE SEARCH WAS LEGAL AND THE INSPECTORS COULD TESTIFY TO
WHAT THEY HAD GLEANED FROM THE INSPECTION.  BUT, AS IS POINTED OUT IN
MY DISSENT IN DAVIS V. UNITED STATES, DECIDED THIS DAY, ANTE, P. 594,
THE CONSTITUTIONAL PROHIBITION IS DIRECTED NOT ONLY AT ILLEGAL
SEARCHES.  IT LIKEWISE CONDEMNS INVALID SEIZURES.  AND THAT IS THE
ISSUE HERE.  THE LEGALITY OF A SEARCH DOES NOT AUTOMATICALLY LEGALIZE
EVERY ACCOMPANYING SEIZURE. 

THE GOVERNMENT ARGUES VERY SIMPLY THAT THE SEIZURE WAS AUTHORIZED
SINCE THE SEIZED ITEMS WERE UNCOVERED IN A LAWFUL SEARCH.  BUT THIS IS
TO OVERLOOK WHAT WE RULED IN MARRON V. UNITED STATES, 275 U.S. 192,
196:  "THE REQUIREMENT THAT WARRANTS SHALL PARTICULARLY DESCRIBE THE
THINGS TO BE SEIZED MAKES GENERAL SEARCHES UNDER THEM IMPOSSIBLE AND
PREVENTS THE SEIZURE OF ONE THING UNDER A WARRANT DESCRIBING ANOTHER. 
AS TO WHAT IS TO BE TAKEN, NOTHING IS LEFT TO THE DISCRETION OF THE
OFFICER EXECUTING THE WARRANT."  IF WHERE A SEARCH INSTITUTED UNDER THE
LEGAL PROCESS OF A WARRANT, WHICH ALSO AUTHORIZES SEIZURE, DOES NOT
PERMIT SEIZURE OF ARTICLES OTHER THAN THOSE SPECIFIED, STATUTORY AND
CONTRACTUAL AUTHORITY MERELY TO SEARCH CANNOT BE CONSIDERED SUFFICIENT
TO GRANT THAT POWER.  THE GOVERNMENT RELIES ON A DOCTRINE QUITE
INAPPOSITE HERE.  IF, IN THE COURSE OF A VALID SEARCH, MATERIALS ARE
UNCOVERED, THE VERY POSSESSION OR CONCEALMENT OF WHICH IS A CRIME, THEY
MAY BE SEIZED.  BUT TO SEIZE FOR EVIDENTIARY USE PAPERS THE POSSESSION
OF WHICH INVOLVES NO INFRINGEMENT OF LAW, IS A HORSE OF A DIFFERENT
COLOR. 

PETITIONER'S RIGHT TO POSSESSION WAS CLEARLY RECOGNIZED BY THE AGENTS
WHEN THEY SOUGHT A WARRANT FOR THE PURPOSE OF SECURING THE EVIDENCE. 
THAT WARRANT WAS DEFECTIVE, HOWEVER, AND COULD NOT AUTHORIZE THE
SEIZURE.  THE GOVERNMENT DEEMS THIS A "TECHNICAL ERROR."  IT IS A
"TECHNICALITY" OF SUCH SUBSTANCE THAT THIS COURT HAS FREQUENTLY
ANNOUNCED THE DUTY TO SUPPRESS EVIDENCE OBTAINED BY SUCH DEFECTIVE
WARRANTS.  CF. UNITED STATES V. BERKENESS, 275 U.S. 149; GRAU V. UNITED
STATES, 287 U.S. 124; SGRO V. UNITED STATES, 287 U.S. 206; NATHANSON V.
UNITED STATES, 290 U.S. 41.  THE FACT THAT THIS EVIDENCE MIGHT HAVE
BEEN SECURED BY A LAWFUL WARRANT SEEMS A STRANGE BASIS FOR APPROVING
SEIZURE WITHOUT A WARRANT.  THE FOURTH AMENDMENT STANDS IN THE WAY. 

I WOULD REVERSE THE JUDGMENT. 
..END :





BIHN V. UNITED STATES, 328 U.S. 633 


NO. 675.  ARGUED MARCH 26, 1946.  - DECIDED JUNE 10, 1946.  - 152 F.2D
342, REVERSED. 


1.  PETITIONER AND ONE BENNETT WERE TRIED BEFORE A JURY FOR A
CONSPIRACY TO VIOLATE THE STATUTE AND REGULATIONS GOVERNING THE
RATIONING OF GASOLINE.  IT WAS CHARGED THAT PETITIONER WOULD STEAL
GASOLINE RATION COUPONS FROM THE BANK WHERE SHE WAS EMPLOYED, TRANSFER
THEM TO BENNETT AND SHARE WITH HIM THE PROCEEDS OF THEIR SALE.  THE
EVIDENCE WAS CONFLICTING AND THE CASE AGAINST PETITIONER WAS A CLOSE
ONE.  IT APPEARED THAT SHE AND THREE OTHERS HAD ACCESS TO THE BOX FROM
WHICH THE COUPONS WERE STOLEN.  OVER OBJECTION OF HER COUNSEL, THE
JUDGE CHARGED THE JURY:  "DID SHE STEAL THEM?  WHO DID IF SHE DIDN'T?
YOU ARE TO DECIDE THAT."  SHE WAS CONVICTED.  HELD THAT THE
PROBABILITIES OF CONFUSION IN THE MINDS OF THE JURORS AS TO THE BURDEN
OF PROOF WERE SO GREAT AND THE CHARGE WAS SO VITAL TO THE CRUCIAL ISSUE
IN THE CASE AS TO CONSTITUTE PREJUDICIAL ERROR, AND THE CONVICTION IS
REVERSED.  PP. 636-639. 

2.  AN ERRONEOUS RULING WHICH RELATES TO THE SUBSTANTIAL RIGHTS OF A
PARTY IS GROUND FOR REVERSAL UNLESS IT AFFIRMATIVELY APPEARS FROM THE
WHOLE RECORD THAT IT WAS NOT PREJUDICIAL.  P. 638. 

3.  IT IS NOT ENOUGH FOR THIS COURT TO CONCLUDE THAT GUILT MAY BE
DEDUCED FROM THE WHOLE RECORD, SINCE SUCH A COURSE WOULD LEAD TO
SERIOUS INTRUSIONS ON THE HISTORIC FUNCTIONS OF THE JURY UNDER OUR
SYSTEM OF GOVERNMENT.  BOLLENBACH V. UNITED STATES, 326 U.S. 607.  PP.
638, 639. 

BIHN V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

PETITIONER WAS CONVICTED UNDER SEC. 37 OF THE CRIMINAL CODE OF A
CONSPIRACY TO VIOLATE THE STATUTE AND REGULATIONS GOVERNING THE
RATIONING OF GASOLINE.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  152
F.2D 342.  THIS COURT GRANTED CERTIORARI.  327 U.S. 771.  REVERSED, P.
639. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER AND ONE BENNETT WERE CONVICTED OF A CONSPIRACY  FN1  TO
VIOLATE THE STATUTE AND REGULATIONS GOVERNING THE RATIONING OF
GASOLINE.  FN2  IT WAS CHARGED THAT BETWEEN JULY 1, 1943 AND SEPTEMBER
6, 1944 PETITIONER WOULD STEAL GASOLINE RATION COUPONS FROM THE FIRST
NATIONAL BANK OF POUGHKEEPSIE, NEW YORK, WHERE SHE WAS EMPLOYED,
TRANSFER THEM TO BENNETT, AND SHARE WITH BENNETT THE PROCEEDS OF THE
SALE.  THE CASE WAS TRIED TO A JURY.  PETITIONER ALONE APPEALED TO THE
CIRCUIT COURT OF APPEALS, WHICH SUSTAINED THE JUDGMENT OF CONVICTION,
ONE JUDGE DISSENTING.  152 F.2D 342.  THE SOLE QUESTION PRESENTED BELOW
AND HERE IS WHETHER A PORTION OF THE CHARGE CONSTITUTED REVERSIBLE
ERROR.  WE GRANTED THE PETITION FOR A WRIT OF CERTIORARI BECAUSE THE
CHARGE GIVEN RAISED AN IMPORTATN QUESTION IN THE ADMINISTRATION OF THE
FEDERAL CRIMINAL LAWS. 

THE CRUCIAL ISSUE, SO FAR AS PETITIONER'S CASE WAS CONCERNED, WAS
WHETHER SHE STOLE THE RATION COUPONS FROM THE BANK. 

BENNETT DID NOT TAKE THE STAND.  STATEMENTS MADE BY HIM OUT OF COURT
WERE INTRODUCED.  THEY IMPLICATED PETITIONER IN THE SCHEME.  BUT THEY
WERE ADMISSIBLE AGAINST BENNETT ALONE, NOT AGAINST PETITIONER.  AND THE
TRIAL JUDGE SO RULED.  TWO OF BENNETT'S RELATIVES - HIS MOTHER-IN-LAW
AND SISTER-IN-LAW - TESTIFIED CONCERNING CONVERSATIONS THEY HAD HAD
WITH PETITIONER.  THEIR VERSIONS OF THE CONVERSATIONS IMPLICATED
PETITIONER IN THE SCHEME.  PETITIONER'S VERSION WAS DIFFERENT.  THE
CONFLICT IN TESTIMONY PRESENTED A QUESTION OF CREDIBILITY FOR THE
JURY.  BEARING ON THAT WAS THE POSSIBLE BIAS OF THOSE WITNESSES,
TRACEABLE IN PART TO THEIR HOSTILITY TO PETITIONER ON ACCOUNT OF THE
FACT THAT SHE APPARENTLY HAD BEEN ON INTIMATE TERMS WITH BENNETT PRIOR
TO HIS MARRIAGE. 

THERE WAS NO DIRECT EVIDENCE THAT PETITIONER HAD STOLEN THE COUPONS. 
THERE WAS, HOWEVER, OTHER EVIDENCE FROM WHICH SUCH AN INFERENCE COULD
BE DRAWN.  IT ASSUMED A PLACE OF CONSIDERABLE IMPORTANCE AT THE TRIAL. 
AND THE ALLEGED ERROR IN THE CHARGE RELATES TO IT. 

PETITIONER HANDLED RATION COUPONS WHICH MERCHANTS DEPOSITED WITH THE
BANK.  THE RATION COUPONS WERE RECEIVED BY TELLERS FOR DEPOSIT.  AFTER
THE COUPONS HAD BEEN RECEIVED FOR DEPOSIT BY THE TELLERS, PETITIONER
CHECKED THE DEPOSITS AGAINST THE DEPOSIT SLIPS AND KEPT THE RATIONING
RECORDS.  AFTER COUNTING THE COUPONS AND MAKING THE ENTRIES, SHE PLACED
THE COUPONS IN A STEEL FILE WHICH WAS LOCKED.  THE KEYS TO THE FILE
WERE KEPT IN HER DESK, WHICH WAS NOT LOCKED.  AT REGULAR INTERVALS
PETITIONER WOULD TAKE THE ACCUMULATED RATION COUPONS AND BOX THEM FOR
TRANSMISSION TO THE OFFICE OF PRICE ADMINISTRATION.  SHE WOULD ALSO
PREPARE A FORM SHOWING THE CONTENTS OF THE BOX.  IN PREPARING THIS
FORM, SHE WOULD NOT RECOUNT THE COUPONS BUT WOULD COMPILE THE FIGURES
FROM THE DAILY RECORDS WHICH HAD BEEN PREPARED AS THE COUPONS WERE
DEPOSITED.  ON SEPTEMBER 5, 1944, PETITIONER PREPARED A BOX FOR
TRANSMISSION TO THE OFFICE OF PRICE ADMINISTRATION, SEALED IT, AND
TURNED IT OVER TO THE CASHIER OF THE BANK.  THE ACCOMPANYING FORM
REPRESENTED ON ITS FACE THAT THE BOX CONTAINED GASOLINE RATION COUPONS
FOR SOME 156,000 GALLONS.  ITS EXAMINATION SHOWED A SHORTAGE OF SOME
37,000 GALLONS.  PETITIONER HAD A GOOD RECORD AT THE BANK.  THE
ACCOUNTS WHICH SHE KEPT WERE KEPT WELL AND ACCURATELY.  SHE WAS NOT THE
ONLY ONE WHO HAD ACCESS TO THE COUPONS IN THE STEEL FILE.  AT LEAST
FOUR OTHER EMPLOYEES OF THE BANK HAD EQUAL ACCESS TO THAT FILE.  ONE OF
THESE WAS A LADY WITH WHOM, ACCORDING TO PETITIONER'S TESTIMONY,
BENNETT HAD A RATHER INTIMATE ACQUAINTANCE. 

THE CASE AGAINST PETITIONER WAS THEREFORE A CLOSE ONE.  PLAINLY THERE
WAS SUFFICIENT EVIDENCE FOR SUBMISSION OF THE CASE TO THE JURY.  BUT
SINCE ONE OF FOUR OTHER PERSONS MIGHT HAVE PURLOINED THE COUPONS,
REASONABLE DOUBT AS TO PETITIONER'S GUILT MIGHT READILY BE INFERRED. 

IT WAS AGAINST THIS BACKGROUND THAT THE TRIAL JUDGE CHARGED THE JURY: 

"WHO WOULD HAVE A MOTIVE TO STEAL THEM?  DID SHE TAKE THESE STAMPS? 
YOU HAVE A RIGHT TO CONSIDER THAT.  SHE IS NOT CHARGED WITH STEALING,
BUT WITH CONSPIRACY TO DO ALL THESE THINGS, AND YOU HAVE A RIGHT TO
CONSIDER WHETHER SHE DID STEAL THEM, ON THE QUESTION OF INTENT.  DID
SHE STEAL THEM?  WHO DID IF SHE DIDN'T?  YOU ARE TO DECIDE THAT." 

COUNSEL EXCEPTED TO THE CHARGE ON THE GROUND THAT IT WAS NOT "THE
JURY'S DUTY TO FIND OUT WHO DID STEAL THE STAMPS."  NO MODIFICATION OF
THE CHARGE WAS MADE. 

WE ASSUME THAT THE CHARGE MIGHT NOT BE MISLEADING OR CONFUSING TO
LAWYERS.  BUT THE PROBABILITIES OF CONFUSION TO A JURY ARE SO LIKELY
(CF. SHEPARD V. UNITED STATES, 290 U.S. 96, 104) THAT WE CONCLUDE THAT
THE CHARGE WAS PREJUDICIALLY ERRONEOUS. 

INSTRUCTIONS TO ACQUIT, IF THERE WAS REASONABLE DOUBT AS TO
PETITIONER'S GUILT, WERE GIVEN IN OTHER PARTS OF THE CHARGE.  THOSE
WERE GENERAL INSTRUCTIONS.  THEY WOULD BE ADEQUATE, STANDING ALONE. 
BUT ON THE CRUCIAL ISSUE OF THE TRIAL - WHETHER PETITIONER OR ONE OF
FOUR OTHER PERSONS STOLE THE COUPONS FROM THE BANK - NO SUCH
QUALIFICATION WAS MADE; AND THE QUESTION WAS SO PUT AS TO SUGGEST A
DIFFERENT STANDARD OF GUILT.  AS STATED BY JUDGE FRANK IN HIS
DISSENTING OPINION BELOW:  "LITERALLY INTERPRETED, THE JUDGE'S CHARGE
TOLD THEM THAT THIS WAS NOT SUFFICIENT TO JUSTIFY ACQUITTAL, FOR IT WAS
THEIR 'DUTY' (A) TO DECIDE THAT APPELLANT COMMITTED THE THEFT UNLESS
(B) THEY DECIDED THAT SOME OTHER SPECIFIC PERSON DID.  SO INTERPRETED,
THIS CHARGE ERRED BY PUTTING ON APPELLANT THE BURDEN OF PROVING HER
INNOCENCE BY PROVING THE IDENTITY OF SOME OTHER PERSON AS THE THIEF." 
152 F.2D, P. 348.  OR TO PUT THE MATTER ANOTHER WAY, THE INSTRUCTION
MAY BE READ AS TELLING THE JURORS THAT, IF PETITIONER BY HER TESTIMONY
HAD NOT CONVINCED THEM THAT SOMEONE ELSE HAD STOLEN THE RATION COUPONS,
SHE MUST HAVE DONE SO.  SO READ, THE INSTRUCTION SOUNDS MORE LIKE
COMMENT OF A ZEALOUS PROSECUTOR RATHER THAN AN INSTRUCTION BY A JUDGE
WHO HAS SPECIAL RESPONSIBILITIES FOR ASSURING FAIR TRIALS OF THOSE
ACCUSED OF CRIME.  SEE QUERCIA V. UNITED STATES, 289 U.S. 466, 469. 

THE "HARMLESS ERROR" STATUTE  FN3  (JUDICIAL CODE SEC. 269, 28 U.S.C.
SEC. 391) MEANS THAT A CRIMINAL APPEAL SHOULD NOT BE TURNED INTO A
QUEST FOR ERROR.  IT DOES NOT MEAN THAT PORTIONS OF THE CHARGE ARE TO
BE READ IN ISOLATION TO THE FULL CHARGE AND MAGNIFIED OUT OF ALL
PROPORTION TO THEIR LIKELY IMPORTANCE AT THE TRIAL.  BOYD V. UNITED
STATES, 271 U.S. 104, 107.  YET AS STATED IN MCCANDLESS V. UNITED
STATES, 298 U.S. 342, 347-348, "AN ERRONEOUS RULING WHICH RELATES TO
THE SUBSTANTIAL RIGHTS OF A PARTY IS GROUND FOR REVERSAL UNLESS IT
AFFIRMATIVELY APPEARS FROM THE WHOLE RECORD THAT IT WAS NOT
PREJUDICIAL."  IT SEEMS PLAIN THAT THE INFLECTION OR TONE OF VOICE USED
IN GIVING THE CHALLENGED INSTRUCTION COULD MAKE IT HIGHLY DAMAGING. 
AND IN ANY EVENT THE PROBABILITIES OF CONFUSION IN THE MINDS OF THE
JURORS SEEM SO GREAT, AND THE CHARGE WAS SO IMPORTANT TO THE VITAL
ISSUE IN THE CASE, THAT WE CONCLUDE THAT PREJUDICIAL ERROR WAS
COMMITTED.  WE CERTAINLY CANNOT SAY FROM A REVIEW OF THE WHOLE RECORD
THAT LACK OF PREJUDICE AFFIRMATIVELY APPEARS.  WHILE THERE WAS
SUFFICIENT EVIDENCE FOR THE JURY, THE CASE AGAINST PETITIONER WAS NOT
OPEN AND SHUT.  SINCE THE SCALES WERE QUITE EVENLY BALANCED, WE FEEL
THAT THE JURY MIGHT HAVE BEEN INFLUENCED BY THE ERRONEOUS CHARGE. 
HENCE WE CANNOT SAY IT WAS NOT PREJUDICIAL AND HENCE TREAT IT AS A
MINOR ABERRATION OF TRIVIAL CONSEQUENCE.  NOR IS IT ENOUGH FOR US TO
CONCLUDE THAT GUILT MAY BE DEDUCED FROM THE WHOLE RECORD.  SUCH A
COURSE WOULD LEAD TO SERIOUS INTRUSIONS ON THE HISTORIC FUNCTIONS OF
THE JURY UNDER OUR SYSTEM OF GOVERNMENT.  SEE BOLLENBACH V. UNITED
STATES, 326 U.S. 607.  REVERSED. 

FN1  CRIMINAL CODE SEC. 37, 18 U.S.C. SEC. 88. 

FN2  SEC. 2(A) OF THE ACT OF JUNE 28, 1940, AS AMENDED, 54 STAT. 676,
55 STAT. 236, 56 STAT. 177, 50 U.S.C. APP., SUPP. IV, SEC. 633; SEC.
2.6 OF GENERAL RATION ORDER NO. 8, AS AMENDED, 8 FED. REG. 9626, 9 FED.
REG. 1325, 2746. 

FN3  "ON THE HEARING OF ANY APPEAL, CERTIORARI, OR MOTION FOR A NEW
TRIAL, IN ANY CASE, CIVIL OR CRIMINAL, THE COURT SHALL GIVE JUDGMENT
AFTER AN EXAMINATION OF THE ENTIRE RECORD BEFORE THE COURT, WITHOUT
REGARD TO TECHNICAL ERRORS, DEFECTS, OR EXCEPTIONS WHICH DO NOT AFFECT
THE SUBSTANTIAL RIGHTS OF THE PARTIES." 

THE FEDERAL RULES OF CRIMINAL PROCEDURE, EFFECTIVE MARCH 21, 1946,
PROVIDE THAT "ANY ERROR, DEFECT, IRREGULARITY OR VARIANCE WHICH DOES
NOT AFFECT SUBSTANTIAL RIGHTS SHALL BE DISREGARDED."  RULE 52(A).  THIS
IS MERELY A RESTATEMENT OF EXISTING LAW AND EFFECTS NO CHANGE IN THE
"HARMLESS ERROR" RULE. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

THE JURY FOUND THIS DEFENDANT GUILTY BEYOND A REASONABLE DOUBT AFTER
THE TRIAL JUDGE HAD CHARGED THAT:  "A DEFENDANT IS NOT REQUIRED TO
ESTABLISH HIS INNOCENCE BUT THE GOVERNMENT MUST ESTABLISH GUILT BEYOND
A REASONABLE DOUBT.  IF THE FACTS AND CIRCUMSTANCES SURROUNDING THE
CASE ARE AS CONSISTENT WITH INNOCENCE AS WITH GUILT, HE IS NOT
GUILTY."  SIX OTHER TIMES THE JUDGE EXPLICITLY CHARGED THE JURY TO THE
SAME EFFECT:  THE DEFENDANT'S INNOCENCE IS PRESUMED; SHE NEED NOT PROVE
IT; THE BURDEN IS ON THE GOVERNMENT TO PROVE HER GUILT BEYOND A
REASONABLE DOUBT.  YET THE COURT NOW REVERSES ON THE GROUND THAT THE
JURY MIGHT CONCEIVABLY HAVE TAKEN THREE SENTENCES IN THE TRIAL JUDGE'S
CHARGE TO MEAN THAT THE DEFENDANT MUST PROVE INNOCENCE, WHICH
CONCEIVABLY MIGHT HAVE LED THE JURY TO BELIEVE THAT THE COURT MIGHT
HAVE INTENDED TO WITHDRAW HIS SEVEN EXPLICIT INSTRUCTIONS TO THE
CONTRARY.  THE THREE SENTENCES WERE: "DID SHE STEAL THEM?  WHO DID IF
SHE DIDN'T?  YOU ARE TO DECIDE THAT."  INSTRUCTIONS SUCH AS THESE AS TO
WHO STOLE THE COUPONS WERE NECESSARY BECAUSE OF THE PETITIONER'S
DEFENSE THAT SOMEBODY ELSE HAD TAKEN THEM.  THE TRIAL JUDGE WAS
OBVIOUSLY TELLING THE JURY NOT TO IGNORE THE PETITIONER'S DEFENSE.  NO
REFERENCE WAS MADE TO BURDEN OF PROOF AND NO ORDINARY JUROR, UNSKILLED
IN LEGAL DIALECTICS, WOULD HAVE SUSPECTED THE LATENT AMBIGUITY WHICH
THE COURT HAS DISCOVERED.  OF COURSE, HYPERCRITICAL SCRUTINY OF EACH
WORD AND SENTENCE IN EVERY CHARGE WHEN CONSIDERED ALONE WOULD ALWAYS
REVEAL DUAL MEANINGS.  THE SENTENCES HERE IN QUESTION, LIKE THE
SENTENCES IN EVERY CHARGE, SHOULD BE GIVEN A COMMON SENSE
INTERPRETATION IN THEIR RELATIONSHIP TO ALL INSTRUCTIONS AND THE ISSUES
RAISED.  WHEN SO CONSIDERED, IT IS IMPOSSIBLE FOR ME TO BELIEVE THAT
THE JURY WAS CONFUSED AS TO BURDEN OF PROOF.  SEVEN CORRECT EXPLICIT
INSTRUCTIONS SHOULD NOT BE CONSIDERED NEUTRALIZED BY LEGALISTIC
INFERENCES ESTABLISHED BY PURELY FORMAL ANALYSIS. 

MR. JUSTICE REED AND MR. JUSTICE BURTON JOIN IN THIS DISSENT. 
..END :
























PINKERTON V. UNITED STATES, 328 U.S. 640 


NO. 719.  ARGUED MAY 1, 1946.  - DECIDED JUNE 10, 1946.  - 151 F.2D 499,
AFFIRMED. 


1.  WHERE AN INDICTMENT CHARGES BOTH A CONSPIRACY TO ENGAGE IN A
COURSE OF CRIMINAL CONDUCT AND A SERIES OF SUBSTANTIVE OFFENSES
COMMITTED PURSUANT TO THE CONSPIRACY, THE SUBSTANTIVE OFFENSES ARE NOT
MERGED INTO THE CONSPIRACY; AND, UPON CONVICTION, THE ACCUSED MAY BE
PUNISHED BOTH FOR THE CONSPIRACY AND FOR THE SUBSTANTIVE OFFENSES. 
BRAVERMAN V. UNITED STATES, 317 U.S. 49, DISTINGUISHED.  PP. 642, 643. 

2.  THE PLEA OF DOUBLE JEOPARDY IS NO DEFENSE TO A CONVICTION FOR
BOTH OFFENSES.  P. 643. 

3.  IT IS NOT MATERIAL THAT OVERT ACTS CHARGED IN THE CONSPIRACY
COUNT ARE ALSO CHARGED AND PROVED AS SUBSTANTIVE OFFENSES.  P. 644. 

4.  A PARTY TO A CONTINUING CONSPIRACY MAY BE RESPONSIBLE FOR
SUBSTANTIVE OFFENSES COMMITTED BY A CO-CONSPIRATOR IN FURTHERANCE OF
THE CONSPIRACY, EVEN THOUGH HE DOES NOT PARTICIPATE IN THE SUBSTANTIVE
OFFENSES OR HAVE ANY KNOWLEDGE OF THEM.  UNITED STATES V. SALL, 116
F.2D 745, OVERRULED.  PP. 645-648. 

PINKERTON ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

PETITIONERS WERE CONVICTED OF A CONSPIRACY TO VIOLATE THE INTERNAL
REVENUE CODE AND OF SEVERAL SUBSTANTIVE VIOLATIONS OF THE CODE AND WERE
SENTENCED BOTH FOR THE CONSPIRACY AND FOR THE SUBSTANTIVE OFFENSES. 
THE CIRCUIT COURT OF APPEALS AFFIRMED.  151 F.2D 499.  THIS COURT
GRANTED CERTIORARI.  327 U.S. 772.  AFFIRMED, P. 648. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

WALTER AND DANIEL PINKERTON ARE BROTHERS WHO LIVE A SHORT DISTANCE
FROM EACH OTHER ON DANIEL'S FARM.  THEY WERE INDICTED FOR VIOLATIONS OF
THE INTERNAL REVENUE CODE.  THE INDICTMENT CONTAINED TEN SUBSTANTIVE
COUNTS AND ONE CONSPIRACY COUNT.  THE JURY FOUND WALTER GUILTY ON NINE
OF THE SUBSTANTIVE COUNTS AND ON THE CONSPIRACY COUNT.  IT FOUND DANIEL
GUILTY ON SIX OF THE SUBSTANTIVE COUNTS AND ON THE CONSPIRACY COUNT. 
WALTER WAS FINED $500 AND SENTENCED GENERALLY ON THE SUBSTANTIVE COUNTS
TO IMPRISONMENT FOR THIRTY MONTHS.  ON THE CONSPIRACY COUNT HE WAS
GIVEN A TWO YEAR SENTENCE TO RUN CONCURRENTLY WITH THE OTHER SENTENCE. 
DANIEL WAS FINED $1,000 AND SENTENCED GENERALLY ON THE SUBSTANTIVE
COUNTS TO IMPRISONMENT FOR THIRTY MONTHS.  ON THE CONSPIRACY COUNT HE
WAS FINED $500 AND GIVEN A TWO YEAR SENTENCE TO RUN CONCURRENTLY WITH
THE OTHER SENTENCE.  THE JUDGMENTS OF CONVICTION WERE AFFIRMED BY THE
CIRCUIT COURT OF APPEALS.  FN1  151 F.2D 499.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI, WHICH WE GRANTED BECAUSE ONE OF THE
QUESTIONS PRESENTED INVOLVED A CONFLICT BETWEEN THE DECISION BELOW AND
UNITED STATES V. SALL, 116 F.2D 745, DECIDED BY THE CIRCUIT COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

A SINGLE CONSPIRACY WAS CHARGED AND PROVED.  SOME OF THE OVERT ACTS
CHARGED IN THE CONSPIRACY COUNT WERE THE SAME ACTS CHARGED IN THE
SUBSTANTIVE COUNTS.  EACH OF THE SUBSTANTIVE OFFENSES FOUND WAS
COMMITTED PURSUANT TO THE CONSPIRACY.  PETITIONERS THEREFORE CONTEND
THAT THE SUBSTANTIVE COUNTS BECAME MERGED IN THE CONSPIRACY COUNT, AND
THAT ONLY A SINGLE SENTENCE NOT EXCEEDING THE MAXIMUM TWO YEAR PENALTY
PROVIDED BY THE CONSPIRACY STATUTE (CRIMINAL CODE SEC. 37, 18 U.S.C.
SEC. 88) COULD BE IMPOSED.  OR TO STATE THE MATTER DIFFERENTLY, THEY
CONTEND THAT EACH OF THE SUBSTANTIVE COUNTS BECAME A SEPARATE
CONSPIRACY COUNT BUT, SINCE ONLY A SINGLE CONSPIRACY WAS CHARGED AND
PROVED, ONLY A SINGLE SENTENCE FOR CONSPIRACY COULD BE IMPOSED.  THEY
RELY ON BRAVERMAN V. UNITED STATES, 317 U.S. 49. 

IN THE BRAVERMAN CASE THE INDICTMENT CHARGED NO SUBSTANTIVE OFFENSE. 
EACH OF THE SEVERAL COUNTS CHARGED A CONSPIRACY TO VIOLATE A DIFFERENT
STATUTE.  BUT ONLY ONE CONSPIRACY WAS PROVED.  WE HELD THAT A SINGLE
CONSPIRACY, CHARGED UNDER THE GENERAL CONSPIRACY STATUTE, HOWEVER
DIVERSE ITS OBJECTS MAY BE, VIOLATES BUT A SINGLE STATUTE AND NO
PENALTY GREATER THAN THE MAXIMUM PROVIDED FOR ONE CONSPIRACY MAY BE
IMPOSED.  THAT CASE IS NOT APPOSITE HERE.  FOR THE OFFENSES CHARGED AND
PROVED WERE NOT ONLY A CONSPIRACY BUT SUBSTANTIVE OFFENSES AS WELL. 

NOR CAN WE ACCEPT THE PROPOSITION THAT THE SUBSTANTIVE OFFENSES WERE
MERGED IN THE CONSPIRACY.  THERE ARE, OF COURSE, INSTANCES WHERE A
CONSPIRACY CHARGE MAY NOT BE ADDED TO THE SUBSTANTIVE CHARGE.  ONE IS
WHERE THE AGREEMENT OF TWO PERSONS IS NECESSARY FOR THE COMPLETION OF
THE SUBSTANTIVE CRIME AND THERE IS NO INGREDIENT IN THE CONSPIRACY
WHICH IS NOT PRESENT IN THE COMPLETED CRIME.  SEE UNITED STATES V.
KATZ, 271 U.S. 354, 355-356; GEBARDI V. UNITED STATES, 287 U.S. 112,
121-122.  ANOTHER IS WHERE THE DEFINITION OF THE SUBSTANTIVE OFFENSE
EXCLUDES FROM PUNISHMENT FOR CONSPIRACY ONE WHO VOLUNTARILY
PARTICIPATES IN ANOTHER'S CRIME.  GEBARDI V. UNITED STATES, SUPRA.  BUT
THOSE EXCEPTIONS ARE OF A LIMITED CHARACTER.  THE COMMON LAW RULE THAT
THE SUBSTANTIVE OFFENSE, IF A FELONY, WAS MERGED IN THE CONSPIRACY,
FN2 HAS LITTLE VITALITY IN THIS COUNTRY.  FN3  IT HAS BEEN LONG AND
CONSISTENTLY RECOGNIZED BY THE COURT THAT THE COMMISSION OF THE
SUBSTANTIVE OFFENSE AND A CONSPIRACY TO COMMIT IT ARE SEPARATE AND
DISTINCT OFFENSES.  THE POWER OF CONGRESS TO SEPARATE THE TWO AND TO
AFFIX TO EACH A DIFFERENT PENALTY IS WELL ESTABLISHED.  CLUNE V. UNITED
STATES, 159 U.S. 590, 594-595.  A CONVICTION FOR THE CONSPIRACY MAY BE
HAD THOUGH THE SUBSTANTIVE OFFENSE WAS COMPLETED.  SEE HEIKE V. UNITED
STATES, 227 U.S. 131, 144.  AND THE PLEA OF DOUBLE JEOPARDY IS NO
DEFENSE TO A CONVICTION FOR BOTH OFFENSES.  CARTER V. MCCLAUGHRY, 183
U.S. 365, 395.  IT IS ONLY AN IDENTITY OF OFFENSES WHICH IS FATAL.  SEE
GAVIERES V. UNITED STATES, 220 U.S. 338, 342.  CF. FREEMAN V. UNITED
STATES, 146 F.2D 978.  A CONSPIRACY IS A PARTNERSHIP IN CRIME.  UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 253.  IT HAS
INGREDIENTS, AS WELL AS IMPLICATIONS, DISTINCT FROM THE COMPLETION OF
THE UNLAWFUL PROJECT.  AS STATED IN UNITED STATES V. RABINOWICH, 238
U.S. 78, 88: 

"FOR TWO OR MORE TO CONFEDERATE AND COMBINE TOGETHER TO COMMIT OR
CAUSE TO BE COMMITTED A BREACH OF THE CRIMINAL LAWS, IS AN OFFENSE OF
THE GRAVEST CHARACTER, SOMETIMES QUITE OUTWEIGHING, IN INJURY TO THE
PUBLIC, THE MERE COMMISSION OF THE CONTEMPLATED CRIME.  IT INVOLVES
DELIBERATE PLOTTING TO SUBVERT THE LAWS, EDUCATING AND PREPARING THE
CONSPIRATORS FOR FURTHER AND HABITUAL CRIMINAL PRACTICES.  AND IT IS
CHARACTERIZED BY SECRECY, RENDERING IT DIFFICULT OF DETECTION,
REQUIRING MORE TIME FOR ITS DISCOVERY, AND ADDING TO THE IMPORTANCE OF
PUNISHING IT WHEN DISCOVERED." 

AND SEE SNEED V. UNITED STATES, 298 F. 911, 912-913; BANGHART V.
UNITED STATES, 148 F.2D 521. 

MOREOVER, IT IS NOT MATERIAL THAT OVERT ACTS CHARGED IN THE
CONSPIRACY COUNTS WERE ALSO CHARGED AND PROVED AS SUBSTANTIVE
OFFENSES.  AS STATED IN SNEED V. UNITED STATES, SUPRA, P. 913, "IF THE
OVERT ACT BE THE OFFENSE WHICH WAS THE OBJECT OF THE CONSPIRACY, AND IS
ALSO PUNISHED, THERE IS NOT A DOUBLE PUNISHMENT OF IT."  THE AGREEMENT
TO DO AN UNLAWFUL ACT IS EVEN THEN DISTINCT FROM THE DOING OF THE ACT. 
FN4 

IT IS CONTENDED THAT THERE WAS INSUFFICIENT EVIDENCE TO IMPLICATE
DANIEL IN THE CONSPIRACY.  BUT WE THINK THERE WAS ENOUGH EVIDENCE FOR
SUBMISSION OF THE ISSUE TO THE JURY. 

THERE IS, HOWEVER, NO EVIDENCE TO SHOW THAT DANIEL PARTICIPATED
DIRECTLY IN THE COMMISSION OF THE SUBSTANTIVE OFFENSES ON WHICH HIS
CONVICTION HAS BEEN SUSTANIED,  FN5  ALTHOUGH THERE WAS EVIDENCE TO
SHOW THAT THESE SUBSTANTIVE OFFENSES WERE IN FACT COMMITTED BY WALTER
IN FURTHERANCE OF THE UNLAWFUL AGREEMENT OR CONSPIRACY EXISTING BETWEEN
THE BROTHERS.  THE QUESTION WAS SUBMITTED TO THE JURY ON THE THEORY
THAT EACH PETITIONER COULD BE FOUND GUILTY OF THE SUBSTANTIVE OFFENSES,
IF IT WAS FOUND AT THE TIME THOSE OFFENSES WERE COMMITTED PETITIONERS
WERE PARTIES TO AN UNLAWFUL CONSPIRACY AND THE SUBSTANTIVE OFFENSES
CHARGED WERE IN FACT COMMITTED IN FURTHERANCE OF IT.  FN6 

DANIEL RELIES ON UNITED STATES V. SALL, SUPRA.  THAT CASE HELD THAT
PARTICIPATION IN THE CONSPIRACY WAS NOT ITSELF ENOUGH TO SUSTAIN A
CONVICTION FOR THE SUBSTANTIVE OFFENSE EVEN THOUGH IT WAS COMMITTED IN
FURTHERANCE OF THE CONSPIRACY.  THE COURT HELD THAT, IN ADDITION TO
EVIDENCE THAT THE OFFENSE WAS IN FACT COMMITTED IN FURTHERANCE OF THE
CONSPIRACY, EVIDENCE OF DIRECT PARTICIPATION IN THE COMMISSION OF THE
SUBSTANTIVE OFFENSE OR OTHER EVIDENCE FROM WHICH PARTICIPATION MIGHT
FAIRLY BE INFERRED WAS NECESSARY. 

WE TAKE A DIFFERENT VIEW.  WE HAVE HERE A CONTINUOUS CONSPIRACY. 
THERE IS HERE NO EVIDENCE OF THE AFFIRMATIVE ACTION ON THE PART OF
DANIEL WHICH IS NECESSARY TO ESTABLISH HIS WITHDRAWAL FROM IT.  HYDE V.
UNITED STATES, 225 U.S. 347, 369.  AS STATED IN THAT CASE, "HAVING
JOINED IN AN UNLAWFUL SCHEME, HAVING CONSTITUTED AGENTS FOR ITS
PERFORMANCE, SCHEME AND AGENCY TO BE CONTINUOUS UNTIL FULL FRUITION BE
SECURED, UNTIL HE DOES SOME ACT TO DISAVOW OR DEFEAT THE PURPOSE HE IS
IN NO SITUATION TO CLAIM THE DELAY OF THE LAW.  AS THE OFFENSE HAS NOT
BEEN TERMINATED OR ACCOMPLISHED HE IS STILL OFFENDING.  AND WE THINK,
CONSCIOUSLY OFFENDING, OFFENDING AS CERTAINLY, AS WE HAVE SAID, AS AT
THE FIRST MOMENT OF HIS CONFEDERATION, AND CONSCIOUSLY THROUGH EVERY
MOMENT OF ITS EXISTENCE."  ID., P. 369.  AND SO LONG AS THE PARTNERSHIP
IN CRIME CONTINUES, THE PARTNERS ACT FOR EACH OTHER IN CARRYING IT
FORWARD.  IT IS SETTLED THAT "AN OVERT ACT OF ONE PARTNER MAY BE THE
ACT OF ALL WITHOUT ANY NEW AGREEMENT SPECIFICALLY DIRECTED TO THAT
ACT."  UNITED STATES V. KISSEL, 218 U.S. 601, 608.  MOTIVE OR INTENT
MAY BE PROVED BY THE ACTS OR DECLARATIONS OF SOME OF THE CONSPIRATORS
IN FURTHERANCE OF THE COMMON OBJECTIVE.  WIBORG V. UNITED STATES, 163
U.S. 632, 657-658.  A SCHEME TO USE THE MAILS TO DEFRAUD, WHICH IS
JOINED IN BY MORE THAN ONE PERSON, IS A CONSPIRACY.  COCHRAN V. UNITED
STATES, 41 F.2D 193, 199-200.  YET ALL MEMBERS ARE RESPONSIBLE, THOUGH
ONLY ONE DID THE MAILING.  COCHRAN V. UNITED STATES, SUPRA; MACKETT V.
UNITED STATES, 90 F.2D 462, 464; BAKER V. UNITED STATES, 115 F.2D 533,
540; BLUE V. UNITED STATES, 138 F.2D 351, 359.  THE GOVERNING PRINCIPLE
IS THE SAME WHEN THE SUBSTANTIVE OFFENSE IS COMMITTED BY ONE OF THE
CONSPIRATORS IN FURTHERANCE OF THE UNLAWFUL PROJECT.  JOHNSON V. UNITED
STATES, 62 F.2D 32, 34.  THE CRIMINAL INTENT TO DO THE ACT IS
ESTABLISHED BY THE FORMATION OF THE CONSPIRACY.  EACH CONSPIRATOR
INSTIGATED THE COMMISSION OF THE CRIME.  THE UNLAWFUL AGREEMENT
CONTEMPLATED PRECISELY WHAT WAS DONE.  IT WAS FORMED FOR THE PURPOSE. 
THE ACT DONE WAS IN EXECUTION OF THE ENTERPRISE.  THE RULE WHICH HOLDS
RESPONSIBLE ONE WHO COUNSELS, PROCURES, OR COMMANDS ANOTHER TO COMMIT A
CRIME IS FOUNDED ON THE SAME PRINCIPLE.  THAT PRINCIPLE IS RECOGNIZED
IN THE LAW OF CONSPIRACY WHEN THE OVERT ACT OF ONE PARTNER IN CRIME IS
ATTRIBUTABLE TO ALL.  AN OVERT ACT IS AN ESSENTIAL INGREDIENT OF THE
CRIME OF CONSPIRACY UNDER SEC. 37 OF THE CRIMINAL CODE, 18 U.S.C. SEC.
88.  IF THAT CAN BE SUPPLIED BY THE ACT OF ONE CONSPIRATOR, WE FAIL TO
SEE WHY THE SAME OR OTHER ACTS IN FURTHERANCE OF THE CONSPIRACY ARE
LIKEWISE NOT ATTRIBUTABLE TO THE OTHERS FOR THE PURPOSE OF HOLDING THEM
RESPONSIBLE FOR THE SUBSTANTIVE OFFENSE. 

A DIFFERENT CASE WOULD ARISE IF THE SUBSTANTIVE OFFENSE COMMITTED BY
ONE OF THE CONSPIRATORS WAS NOT IN FACT DONE IN FURTHERANCE OF THE
CONSPIRACY, DID NOT FALL WITHIN THE SCOPE OF THE UNLAWFUL PROJECT, OR
WAS MERELY A PART OF THE RAMIFICATIONS OF THE PLAN WHICH COULD NOT BE
REASONABLY FORESEEN AS A NECESSARY OR NATURAL CONSEQUENCE OF THE
UNLAWFUL AGREEMENT.  BUT AS WE READ THIS RECORD, THAT IS NOT THIS
CASE.  AFFIRMED. 

FN1  THE COURT HELD THAT TWO OF THE COUNTS UNDER WHICH WALTER WAS
CONVICTED AND ONE OF THE COUNTS UNDER WHICH DANIEL WAS CONVICTED WERE
BARRED BY THE STATUTE OF LIMITATIONS AND THAT AS TO THEM THE DEMURRER
SHOULD HAVE BEEN SUSTAINED.  BUT EACH OF THE REMAINING SUBSTANTIVE
COUNTS ON WHICH THE JURY HAD RETURNED A VERDICT OF GUILTY CARRIED A
MAXIMUM PENALTY OF THREE YEARS' IMPRISONMENT AND A FINE OF $5,000. 
INT. REV. CODE, SEC. 3321, 26 U.S.C. SEC. 3321.  HENCE THE GENERAL
SENTENCE OF FINE AND IMPRISONMENT IMPOSED ON EACH UNDER THE SUBSTANTIVE
COUNTS WAS VALID.  IT IS SETTLED LAW, AS STATED IN CLAASSEN V. UNITED
STATES, 142 U.S. 140, 146-147, "THAT IN ANY CRIMINAL CASE A GENERAL
VERDICT AND JUDGMENT ON AN INDICTMENT OR INFORMATION CONTAINING SEVERAL
COUNTS CANNOT BE REVERSED ON ERROR, IF ANY ONE OF THE COUNTS IS GOOD
AND WARRANTS THE JUDGMENT, BECAUSE, IN THE ABSENCE OF ANYTHING IN THE
RECORD TO SHOW THE CONTRARY, THE PRESUMPTION OF LAW IS THAT THE COURT
AWARDED SENTENCE ON THE GOOD COUNT ONLY." 

THE SAME RULE OBTAINS IN THE CASE OF CONCURRENT SENTENCES. 
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 85 AND CASES CITED. 

FN2  SEE MAY'S LAW OF CRIMES (4TH ED. 1938), SEC. 126; 17 CORN.  L.Q.
(1931) 136; PEOPLE V. TAVORMINA, 257 N.Y. 84, 89-90, 177 N.E. 317. 

FN3  THE CASES ARE COLLECTED IN 37 A.L.R. 778, 75 A.L.R. 1411. 

FN4  THE ADDITION OF A CONSPIRACY COUNT MAY AT TIMES BE ABUSIVE AND
UNJUST.  THE CONFERENCE OF SENIOR CIRCUIT JUDGES REPORTED IN 1925: 

"WE NOTE THE PREVALENT USE OF CONSPIRACY INDICTMENTS FOR CONVERTING A
JOINT MISDEMEANOR INTO A FELONY; AND WE EXPRESS OUR CONVICTION THAT
BOTH FOR THIS PURPOSE AND FOR THE PURPOSE - OR AT LEAST WITH THE EFFECT
- OF BRINGING IN MUCH IMPROPER EVIDENCE, THE CONSPIRACY STATUTE IS
BEING MUCH ABUSED. 

"ALTHOUGH IN A PARTICULAR CASE THERE MAY BE NO PRECONCERT OF PLAN,
EXCEPTING THAT NECESSARILY INHERENT IN MERE JOINT ACTION, IT IS
DIFFICULT TO EXCLUDE THAT SITUATION FROM THE ESTABLISHED DEFINITIONS OF
CONSPIRACY; YET THE THEORY WHICH PERMITS US TO CALL THE ABORTED PLAN A
GREATER OFFENSE THAN THE COMPLETED CRIME SUPPOSES A SERIOUS AND
SUBSTANTIALLY CONTINUED GROUP SCHEME FOR COOPERATIVE LAW BREAKING.  WE
OBSERVE SO MANY CONSPIRACY PROSECUTIONS WHICH DO NOT HAVE THIS
SUBSTANTIAL BASE THAT WE FEAR THE CREATION OF A GENERAL IMPRESSION,
VERY HARMFUL TO LAW ENFORCEMENT, THAT THIS METHOD OF PROSECUTION IS
USED ARBITRARILY AND HARSHLY.  FURTHER THE RULES OF EVIDENCE IN
CONSPIRACY CASES MAKE THEM MOST DIFFICULT TO TRY WITHOUT PREJUDICE TO
AN INNOCENT DEFENDANT."  ANNUAL REPORT OF THE ATTORNEY GENERAL FOR
1925, PP. 5-6.    BUT WE DO NOT FIND THAT PRACTICE REFLECTED IN THIS
PRESENT CASE. 

FN5  THIS QUESTION DOES NOT ARISE AS TO WALTER.  HE WAS THE DIRECT
ACTOR IN SOME OF THE SUBSTANTIVE OFFENSES ON WHICH HIS CONVICTION
RESTS.  SO THE GENERAL SENTENCE AND FINE ARE SUPPORTABLE UNDER ANY ONE
OF THOSE.  SEE NOTE 1, SUPRA. 

FN6  THE TRIAL COURT CHARGED:  "...  AFTER YOU GENTLEMEN HAVE
CONSIDERED ALL THE EVIDENCE IN THIS CASE, IF YOU ARE SATISFIED FROM THE
EVIDENCE BEYOND A REASONABLE DOUBT THAT AT THE TIME THESE PARTICULAR
SUBSTANTIVE OFFENSES WERE COMMITTED, THAT IS, THE OFFENSES CHARGED IN
THE FIRST TEN COUNTS OF THIS INDICTMENT IF YOU ARE SATISFIED FROM THE
EVIDENCE BEYOND A REASONABLE DOUBT THAT THE TWO DEFENDANTS WERE IN AN
UNLAWFUL CONSPIRACY, AS I HAVE HERETOFORE DEFINED UNLAWFUL CONSPIRACY
TO YOU, THEN YOU WOULD HAVE A RIGHT, IF YOU FOUND THAT TO BE TRUE TO
YOUR SATISFACTION BEYOND A REASONABLE DOUBT, TO CONVICT EACH OF THESE
DEFENDANTS ON ALL THESE SUBSTANTIVE COUNTS, PROVIDED THE ACTS REFERRED
TO IN THE SUBSTANTIVE COUNTS WERE ACTS IN FURTHERANCE OF THE UNLAWFUL
CONSPIRACY OR OBJECT OF THE UNLAWFUL CONSPIRACY, WHICH YOU HAVE FOUND
FROM THE EVIDENCE EXISTED."  DANIEL WAS NOT INDICTED AS AN AIDER OR
ABETTOR (SEE CRIMINAL CODE, SEC. 332, 18 U.S.C. 550), NOR WAS HIS CASE
SUBMITTED TO THE JURY ON THAT THEORY. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, DISSENTING IN PART. 

THE JUDGMENT CONCERNING DANIEL PINKERTON SHOULD BE REVERSED.  IN MY
OPINION IT IS WITHOUT PRECEDENT HERE AND IS A DANGEROUS PRECEDENT TO
ESTABLISH. 

DANIEL AND WALTER, WHO WERE BROTHERS LIVING NEAR EACH OTHER, WERE
CHARGED IN SEVERAL COUNTS WITH SUBSTANTIVE OFFENSES, AND THEN A
CONSPIRACY COUNT WAS ADDED NAMING THOSE OFFENSES AS OVERT ACTS.  THE
PROOF SHOWED THAT WALTER ALONE COMMITTED THE SUBSTANTIVE CRIMES.  THERE
WAS NONE TO ESTABLISH THAT DANIEL PARTICIPATED IN THEM, AIDED AND
ABETTED WALTER IN COMMITTING THEM, OR KNEW THAT HE HAD DONE SO.  DANIEL
IN FACT WAS IN THE PENITENTIARY, UNDER SENTENCE FOR OTHER CRIMES, WHEN
SOME OF WALTER'S CRIMES WERE DONE. 

THERE WAS EVIDENCE, HOWEVER, TO SHOW THAT OVER SEVERAL YEARS DANIEL
AND WALTER HAD CONFEDERATED TO COMMIT SIMILAR CRIMES CONCERNED WITH
UNLAWFUL POSSESSION, TRANSPORTATION, AND DEALING IN WHISKEY, IN FRAUD
OF THE FEDERAL REVENUES.  ON THIS EVIDENCE BOTH WERE CONVICTED OF
CONSPIRACY.  WALTER ALSO WAS CONVICTED ON THE SUBSTANTIVE COUNTS ON THE
PROOF OF HIS COMMITTING THE CRIMES CHARGED.  THEN, ON THAT EVIDENCE
WITHOUT MORE THAN THE PROOF OF DANIEL'S CRIMINAL AGREEMENT WITH WALTER
AND THE LATTER'S OVERT ACTS, WHICH WERE ALSO THE SUBSTANTIVE OFFENSES
CHARGED, THE COURT TOLD THE JURY THEY COULD FIND DANIEL GUILTY OF THOSE
SUBSTANTIVE OFFENSES.  THEY DID SO. 

I THINK THIS RULING VIOLATES BOTH THE LETTER AND THE SPIRIT OF WHAT
CONGRESS DID WHEN IT SEPARATELY DEFINED THE THREE CLASSES OF CRIME,
NAMELY, (1) COMPLETED SUBSTANTIVE OFFENSES; FN1 (2) AIDING, ABETTING OR
COUNSELING ANOTHER TO COMMIT THEM; FN2  AND (3) CONSPIRACY TO COMMIT
THEM.  FN3  NOT ONLY DOES THIS IGNORE THE DISTINCTIONS CONGRESS HAS
PRESCRIBED SHALL BE OBSERVED.  IT EITHER CONVICTS ONE MAN FOR ANOTHER'S
CRIME OR PUNISHES THE MAN CONVICTED TWICE FOR THE SAME OFFENSE. 

THE THREE TYPES OF OFFENSE ARE NOT IDENTICAL.  BOLLENBACH V. UNITED
STATES, 326 U.S. 607, 611; UNITED STATES V. SALL, 116 F.2D 745.  NOR
ARE THEIR DIFFERENCES MERELY VERBAL.  IBID.  THE GIST OF CONSPIRACY IS
THE AGREEMENT; THAT OF AIDING, ABETTING OR COUNSELING IS IN CONSCIOUSLY
ADVISING OR ASSISTING ANOTHER TO COMMIT PARTICULAR OFFENSES, AND THUS
BECOMING A PARTY TO THEM; THAT OF SUBSTANTIVE CRIME, GOING A STEP
BEYOND MERE AIDING, ABETTING, COUNSELING TO COMPLETION OF THE OFFENSE. 

THESE GENERAL DIFFERENCES ARE WELL UNDERSTOOD.  BUT WHEN CONSPIRACY
HAS RIPENED INTO COMPLETED CRIME, OR HAS ADVANCED TO THE STAGE OF
AIDING AND ABETTING, IT BECOMES EASY TO DISREGARD THEIR DIFFERENCES AND
LOOSELY TO TREAT ONE AS IDENTICAL WITH THE OTHER, THAT IS, FOR EVERY
PURPOSE EXCEPT THE MOST VITAL ONE OF IMPOSING SENTENCE.  AND THUS THE
SUBSTANCE, IF NOT THE TECHNICAL EFFECT, OF DOUBLE JEOPARDY OR MULTIPLE
PUNISHMENT MAY BE ACCOMPLISHED.  THUS ALSO MAY ONE BE CONVICTED OF AN
OFFENSE NOT CHARGED OR PROVED AGAINST HIM, ON EVIDENCE SHOWING HE
COMMITTED ANOTHER. 

THE OLD DOCTRINE OF MERGER OF CONSPIRACY IN THE SUBSTANTIVE CRIME HAS
NOT OBTAINED HERE.  BUT THE DANGERS FOR ABUSE, WHICH IN PART IT SOUGHT
TO AVOID, IN APPLYING THE LAW OF CONSPIRACY HAVE NOT ALTOGETHER
DISAPPEARED.  CF. KOTTEAKOS V. UNITED STATES, POST, P. 750.  THERE IS
SOME EVIDENCE THAT THEY MAY BE INCREASING.  THE LOOSENESS WITH WHICH
THE CHARGE MAY BE PROVED, THE ALMOST UNLIMITED SCOPE OF VICARIOUS
RESPONSIBILITY FOR OTHERS' ACTS WHICH FOLLOWS ONCE AGREEMENT IS SHOWN,
THE PSYCHOLOGICAL ADVANTAGES OF SUCH TRIALS FOR SECURING CONVICTIONS BY
ATTRIBUTING TO ONE PROOF AGAINST ANOTHER, THESE AND OTHER INDUCEMENTS
REQUIRE THAT THE BROAD LIMITS OF DISCRETION ALLOWED TO PROSECUTING
OFFICERS IN RELATION TO SUCH CHARGES AND TRIALS BE NOT EXPANDED INTO
NEW, WIDER AND MORE DUBIOUS AREAS OF CHOICE.  IF THE MATTER IS NOT
GENERALLY OF CONSTITUTIONAL PROPORTIONS, IT IS ONE FOR THE EXERCISE OF
THIS COURT'S SUPERVISORY POWER OVER THE MODES OF CONDUCTING FEDERAL
CRIMINAL PROSECUTIONS WITHIN THE RULE OF MCNABB V. UNITED STATES, 318
U.S. 332. 

I THINK THAT POWER SHOULD BE EXERCISED IN THIS CASE WITH RESPECT TO
DANIEL'S CONVICTION.  IF IT DOES NOT VIOLATE THE LETTER OF
CONSTITUTIONAL RIGHT, IT FRACTURES THE SPIRIT.  UNITED STATES V. SALL,
SUPRA.  I THINK THE RULING IN THAT CASE WAS RIGHT, AND FOR THE REASONS
STATED.  FN4  IT SHOULD BE FOLLOWED HERE.  DANIEL HAS BEEN HELD GUILTY
OF THE SUBSTANTIVE CRIMES COMMITTED ONLY BY WALTER ON PROOF THAT HE DID
NO MORE THAN CONSPIRE WITH HIM TO COMMIT OFFENSES OF THE SAME GENERAL
CHARACTER.  THERE WAS NO EVIDENCE THAT HE COUNSELED, ADVISED OR HAD
KNOWLEDGE OF THOSE PARTICULAR ACTS OR OFFENSES.  THERE WAS, THEREFORE,
NONE THAT HE AIDED, ABETTED OR TOOK PART IN THEM.  THERE WAS ONLY
EVIDENCE SUFFICIENT TO SHOW THAT HE HAD AGREED WITH WALTER AT SOME PAST
TIME TO ENGAGE IN SUCH TRANSACTIONS GENERALLY.  AS TO DANIEL THIS WAS
ONLY EVIDENCE OF CONSPIRACY, NOT OF SUBSTANTIVE CRIME. 

THE COURT'S THEORY SEEMS TO BE THAT DANIEL AND WALTER BECAME GENERAL
PARTNERS IN CRIME BY VIRTUE OF THEIR AGREEMENT AND BECAUSE OF THAT
AGREEMENT WITHOUT MORE ON HIS PART DANIEL BECAME CRIMINALLY RESPONSIBLE
AS A PRINCIPAL FOR EVERYTHING WALTER DID THEREAFTER IN THE NATURE OF A
CRIMINAL OFFENSE OF THE GENERAL SORT THE AGREEMENT CONTEMPLATED, SO
LONG AS THERE WAS NOT CLEAR EVIDENCE THAT DANIEL HAD WITHDRAWN FROM OR
REVOKED THE AGREEMENT.  WHETHER OR NOT HIS COMMITMENT TO THE
PENITENTIARY HAD THAT EFFECT, THE RESULT IS A VICARIOUS CRIMINAL
RESPONSIBILITY AS BROAD AS, OR BROADER THAN, THE VICARIOUS CIVIL
LIABILITY OF A PARTNER FOR ACTS DONE BY A CO-PARTNER IN THE COURSE OF
THE FIRM'S BUSINESS. 

SUCH ANALOGIES FROM PRIVATE COMMERCIAL LAW AND THE LAW OF TORTS ARE
DANGEROUS, IN MY JUDGMENT, FOR TRANSFER TO THE CRIMINAL FIELD.  SEE
SEN. REP. NO. 163, 72D CONG., 1ST SESS., 20.  GUILT THERE WITH US
REMAINS PERSONAL, NOT VICARIOUS, FOR THE MORE SERIOUS OFFENSES.  IT
SHOULD BE KEPT SO. THE EFFECT OF DANIEL'S CONVICTION IN THIS CASE, TO
REPEAT, IS EITHER TO ATTRIBUTE TO HIM WALTER'S GUILT OR TO PUNISH HIM
TWICE FOR THE SAME OFFENSE, NAMELY, AGREEING WITH WALTER TO ENGAGE IN
CRIME.  WITHOUT THE AGREEMENT DANIEL WAS GUILTY OF NO CRIME ON THIS
RECORD.  WITH IT AND NO MORE, SO FAR AS HIS OWN CONDUCT IS CONCERNED,
HE WAS GUILTY OF TWO. 

IN ANOTHER ASPECT OF THE CASE, THIS EFFECT IS THROWN INTO EVEN
CLEARER LIGHT.  THE INDICTMENT HERE WAS FILED AFTER A PRIOR ONE FOR
CONSPIRACY ALONE HAD BEEN DISMISSED.  THIS IN TURN CAME AFTER
PETITIONERS HAD BEEN TRIED, CONVICTED AND HAD BEEN SUCCESSFUL IN
SECURING REVERSAL ON APPEAL FOR ERRORS IN THE CHARGE.  PINKERTON V.
UNITED STATES, 145 F.2D 252.  FOLLOWING THIS REVERSAL THEY WERE
REINDICTED AND TRIED IN THE PRESENT CASE.  THE GOVERNMENT NOW SAYS, AS
TO THE PLEA OF DOUBLE JEOPARDY ON THIS ACCOUNT (WHICH THE TRIAL COURT
OVERRULED ON DEMURRER), THAT THE TWO INDICTMENTS WERE FOR DIFFERENT
CONSPIRACIES SINCE THE FIRST ONE CHARGED A DIFFERENT PERIOD OF TIME AS
COVERED BY THE CONSPIRACY; CHARGED 16 AS COMPARED WITH 19 OVERT ACTS IN
THE SECOND; AND AN ADDITIONAL OBJECT WAS ADDED IN THE LATTER, THAT IS,
INTENT TO VIOLATE ANOTHER SECTION OF THE REVENUE ACT.  IN OTHER WORDS,
THERE WERE TWO DIFFERENT CONSPIRACIES BY VIRTUE OF THESE MINUTE
DIFFERENCES IN THE DETAIL OF THE ALLEGATIONS.  HENCE, THERE WAS NO
DOUBLE JEOPARDY BY THE SECOND INDICTMENT. 

BUT LATER, IN SUPPORT OF THE CONVICTION HERE, RELATIVE TO THE BEARING
OF THE VARIOUS STATUTES OF LIMITATIONS UPON PROOF OF THE OVERT ACTS,
CHARGED ALSO AS SUBSTANTIVE OFFENSES, THE GOVERNMENT POINTS OUT THAT
THE EARLIER INDICTMENT WAS FRAMED ON THE ASSUMPTION THAT A THREE-YEAR
STATUTE OF LIMITATIONS APPLIED TO THE CONSPIRACY AS FIRST CHARGED; AND
THE CONVICTIONS WERE REVERSED FOR FAILURE OF THE TRIAL COURT TO
INSTRUCT THE JURY ON THAT BASIS.  THEN THE DISTRICT ATTORNEY DISCOVERED
THE DECISION IN BRAVERMAN V. UNITED STATES, 317 U.S. 49, 54-55, AND
DECIDED TO REVAMP THE INDICTMENT TO INCLUDE DETAILS MAKING THE SIX-YEAR
PERIOD APPLICABLE.  HE DID SO, AND ADDED THE SUBSTANTIVE COUNTS
BECAUSE, SO IT IS SAID, IN THE VIEW THAT A SIX-YEAR PERIOD APPLIED HE
FELT THERE WERE ENOUGH SUBSTANTIVE OFFENSES WITHIN THAT TIME WHICH HE
COULD SUCCESSFULLY PROVE TO JUSTIFY INCLUDING THEM. 

IT WOULD SEEM, FROM THIS HISTORY, THAT TO SUSTAIN THIS CONVICTION AS
AGAINST THE PLEA OF FORMER JEOPARDY BY VIRTUE OF THE EARLIER INDICTMENT
AND WHAT FOLLOWED, THE GOVERNMENT STANDS, AND MUST STAND, UPON THE IDEA
THAT TWO SEPARATE AND DISTINCT CONSPIRACIES WERE CHARGED, ONE BY THE
FIRST AND ONE BY THE LATER INDICTMENT.  SEE UNITED STATES V.
OPPENHEIMER, 242 U.S. 85, 87-88.  BUT TO SUSTAIN DANIEL'S CONVICTION
FOR THE SUBSTANTIVE OFFENSES, VIA THE CONSPIRACY ROUTE, THERE WAS ONLY
A SINGLE CONTINUING CONSPIRACY EXTENDING OVER THE LONGER PERIOD, IN THE
COURSE OF WHICH WALTER COMMITTED CRIMES, WHICH WERE ALSO OVERT ACTS,
SOME OF THEM RUNNING BACK OF THE PERIOD CHARGED IN THE FORMER
INDICTMENT, OTHERS BEING THE SAME BUT LATER ACTS WHICH IT HAD CHARGED
AS OVERT ACTS AGAINST BOTH. 

FOR THESE NOW DANIEL IS HELD RESPONSIBLE, NOT MERELY AS A
CONSPIRATOR, AS THE PRIOR INDICTMENT CHARGED, BUT AS BOTH A CONSPIRATOR
AND A SUBSTANTIVE OFFENDER. 

WHAT THIS LACKS BY WAY OF BEING PUT TWICE IN JEOPARDY FOR THE SAME
OFFENSE, I AM UNABLE TO UNDERSTAND.  FOR NOT ONLY HAS DANIEL BEEN
CONVICTED FOR CONSPIRACY FOR THE SAME OVERT ACTS, AND ILLEGAL ENDS, AS
THE FIRST INDICTMENT CHARGED.  HE HAS HAD THOSE ACTS CONVERTED INTO
SUBSTANTIVE OFFENSES.  I DO NOT THINK THE PROSECUTOR'S TECHNICAL, AND
IT WOULD SEEM INSUBSTANTIAL, VARIATIONS IN THE DETAILS OF THE
INDICTMENT SHOULD BE PERMITTED TO ACHIEVE SO MUCH.  FN5 

THIS, OF COURSE, SHOULD NOT RELIEVE WALTER OF THE CONVICTION FOR THE
SUBSTANTIVE OFFENSES.  BUT HIS SENTENCE FOR CONSPIRACY SHOULD BE
ANNULLED.  SO ALSO SHOULD DANIEL'S SENTENCE ON ALL COUNTS. 

FN1  THESE OF COURSE COMPREHEND THE VAST VARIETY OF OFFENSES
PRESCRIBED BY FEDERAL LAW, CONSPIRACIES FOR ACCOMPLISHING WHICH MAY BE
CHARGED UNDER THE CATCHALL CONSPIRACY STATUTE, NOTE 3. 

FN2  "WHOEVER DIRECTLY COMMITS ANY ACT CONSTITUTING AN OFFENSE
DEFINED IN ANY LAW OF THE UNITED STATES, OR AIDS, ABETS, COUNSELS,
COMMANDS, INDUCES, OR PROCURES ITS COMMISSION, IS A PRINCIPAL."  18
U.S.C. SEC. 550. 

FN3  "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. SEC. 88. 

FN4  IN THE SUBSTANTIALLY IDENTICAL SITUATION PRESENTED IN THE SALL
CASE AS TO THE INDICTMENT AND THE PROOF, THE GOVERNMENT ARGUED THAT THE
CONVICTION ON THE SUBSTANTIVE COUNTS SHOULD STAND BECAUSE THE PROOF
THAT THE ACCUSED HAD ENTERED THE CONSPIRACY AMOUNTED TO PROOF THAT HE
HAD "AIDED AND ABETTED" THE COMMISSION OF THE SUBSTANTIVE CRIMES WITHIN
THE MEANING OF 18 U.S.C. SEC. 550.  THE COURT REJECTED THE IDEA,
APPARENTLY NOW ACCEPTED HERE, THAT "AIDING AND ABETTING" AND
"CONSPIRING" ARE, AND ARE INTENDED BY CONGRESS TO BE, THE SAME THING,
DIFFERING ONLY IN THE FORM OF THE DESCRIPTIVE WORDS.  BUT IF THAT IS
THE ONLY DIFFERENCE, THEN CONVICTION FOR BOTH "OFFENSES" ON ACCOUNT OF
THE SAME ACT IS CLEARLY DOUBLE PUNISHMENT. 

FN5  THE SITUATION IS ESSENTIALLY THE SAME AS WHEN CRIMES ARE DEFINED
WITH SUCH MINUTE DISTINCTION AS TO MAKE THEM DIFFERENT ONLY IN THE MOST
TECHNICAL SENSE.  SEE DISTRICT OF COLUMBIA V. BUCKLEY, 128 F.2D 17,
CONCURRING OPINION AT 21; CF. EX PARTE NIELSEN, 131 U.S. 176; IN RE
SNOW, 120 U.S. 274. 

MR. JUSTICE FRANKFURTER, RESERVING JUDGMENT ON THE QUESTION OF DOUBLE
JEOPARDY, AGREES IN SUBSTANCE WITH THE VIEWS EXPRESSED IN THIS
DISSENT. 
..END :
















KNAUER V. UNITED STATES, 328 U.S. 654 


NO. 510.  ARGUED MARCH 28, 29, 1946.  - DECIDED JUNE 10, 1946.  - 149
F.2D 519, AFFIRMED. 


1.  IN A PROCEEDING UNDER SEC. 338 OF THE NATIONALITY ACT OF 1940 TO
REVOKE AN ORDER ADMITTING PETITIONER TO CITIZENSHIP AND TO CANCEL HIS
CERTIFICATE OF NATURALIZATION ON THE GROUND OF FRAUD IN THEIR
PROCUREMENT, THERE WAS SOLID, CONVINCING EVIDENCE THAT, BEFORE THE DATE
OF HIS NATURALIZATION, AT THAT TIME, AND SUBSEQUENTLY, HE WAS A
THOROUGHGOING NAZI AND A FAITHFUL FOLLOWER OF ADOLPH HITLER.  HELD. 
THE CONCLUSION IS IRRESISTIBLE THAT, WHEN PETITIONER FORSWORE
ALLEGIANCE TO THE GERMAN REICH, HE SWORE FALSELY; AND THE REVOCATION OF
THE DECREE OF NATURALIZATION IS SUSTAINED.  PP. 660-669, 674. 

2.  THE STANDARD OF PROOF REQUIRED IN SUCH PROCEEDINGS IS STRICT. 
SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118; BAUMGARTNER V. UNITED
STATES, 322 U.S. 665.  P. 657. 

3.  IN REVIEWING SUCH A PROCEEDING, THIS COURT DOES NOT ACCEPT EVEN
CONCURRENT FINDINGS OF THE TWO LOWER COURTS AS CONCLUSIVE, BUT
REEXAMINES THE FACTS TO DETERMINE WHETHER THE UNITED STATES HAS CARRIED
THE BURDEN OF PROVING ITS CASE BY "CLEAR, UNEQUIVOCAL, AND CONVINCING"
EVIDENCE, WHICH DOES NOT LEAVE "THE ISSUE IN DOUBT."  ID.  PP. 657,
658. 

4.  CITIZENSHIP OBTAINED THROUGH NATURALIZATION IS NOT A SECOND-CLASS
CITIZENSHIP.  P. 658. 

5.  IT CARRIES WITH IT THE PRIVILEGES OF FULL PARTICIPATION IN THE
AFFAIRS OF OUR SOCIETY, INCLUDING THE RIGHT TO SPEAK FREELY, TO
CRITICIZE OFFICIALS AND ADMINISTRATORS, AND TO PROMOTE CHANGES IN OUR
LAWS, INCLUDING THE VERY CHARTER OF OUR GOVERNMENT.  P. 658. 

6.  GREAT TOLERANCE AND CAUTION ARE NECESSARY LEST GOOD FAITH
EXERCISE OF THE RIGHTS OF CITIZENSHIP BE TURNED AGAINST THE NATURALIZED
CITIZEN AND USED TO DEPRIVE HIM OF THE CHERISHED STATUS.  P. 658. 

7.  ILL-TEMPERED EXPRESSIONS, EXTREME VIEWS, EVEN THE PROMOTION OF
IDEAS WHICH RUN COUNTER TO OUR AMERICAN IDEALS, ARE NOT TO BE GIVEN
DISLOYAL CONNOTATIONS IN THE ABSENCE OF SOLID, CONVINCING EVIDENCE THAT
THAT IS THEIR SIGNIFICANCE.  P. 658. 

8.  UTTERANCES MADE IN YEARS SUBSEQUENT TO THE OATH OF ALLEGIANCE ARE
NOT READILY TO BE CHARGED AGAINST THE STATE OF MIND EXISTING WHEN THE
OATH WAS ADMINISTERED.  P. 659. 

9.  THE FUNDAMENTAL QUESTION IS WHETHER THE NEW CITIZEN STILL TAKES
HIS ORDERS FROM, OR OWES HIS ALLEGIANCE TO, A FOREIGN CHANCELLORY.  P.
659. 

10.  MEMBERSHIP IN THE GERMAN-AMERICAN BUND IS NOT IN ITSELF
SUFFICIENT TO PROVE FRAUD WHICH WOULD WARRANT REVOCATION OF A DECREE OF
NATURALIZATION.  P. 669. 

11.  THE ISSUE OF FRAUD IN THE OATH OF ALLEGIANCE TAKEN BY AN ALIEN
UPON ADMISSION TO CITIZENSHIP CANNOT BECOME RES JUDICATA IN THE ORDER
ADMITTING HIM TO CITIZENSHIP; SINCE IT WAS NOT IN ISSUE AND NEITHER WAS
ADJUDICATED NOR COULD HAVE BEEN ADJUDICATED IN THE NATURALIZATION
PROCEEDINGS.  P. 671. 

12.  WHEN AN ALIEN TAKES THE OATH OF ALLEGIANCE WITH RESERVATIONS OR
DOES NOT IN GOOD FAITH FORSWEAR LOYALTY AND ALLEGIANCE TO THE OLD
COUNTRY, THE DECREE OF NATURALIZATION IS OBTAINED BY A FRAUD ON THE
NATURALIZATION COURT; AND THIS IS A PROPER GROUND FOR CANCELLATION OF
THE NATURALIZATION.  PP. 671-673. 

13.  THERE CAN BE NO DOUBT OF THE POWER OF CONGRESS TO PROVIDE FOR
THE CANCELLATION OF CERTIFICATES OF NATURALIZATION ON THE GROUND OF
FRAUD IN THEIR PROCUREMENT.  PP. 673, 674. 

KNAUER V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

A DISTRICT COURT CANCELLED PETITIONER'S CERTIFICATE OF NATURALIZATION
AND REVOKED THE ORDER ADMITTING HIM TO CITIZENSHIP ON THE GROUND THAT
THEY HAD BEEN PROCURED BY FRAUD.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  149 F.2D 519.  THIS COURT GRANTED CERTIORARI.  326 U.S.
714.  AFFIRMED, P. 674. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

KNAUER IS A NATIVE OF GERMANY.  HE ARRIVED IN THIS COUNTRY IN 1925 AT
THE AGE OF 30.  HE HAD SERVED IN THE GERMAN ARMY DURING WORLD WAR I AND
WAS DECORATED.  HE HAD STUDIED LAW AND ECONOMICS IN GERMANY.  HE
SETTLED IN MILWAUKEE, WISCONSIN, AND CONDUCTED AN INSURANCE BUSINESS
THERE.  HE FILED HIS DECLARATION OF INTENTION TO BECOME A CITIZEN IN
1929 AND HIS PETITION FOR NATURALIZATION IN 1936.  HE TOOK HIS OATH OF
ALLEGIANCE AND WAS ADMITTED TO CITIZENSHIP ON APRIL 13, 1937.  IN 1943
THE UNITED STATES INSTITUTED PROCEEDINGS UNDER SEC. 338(A) OF THE
NATIONALITY ACT OF 1940, 54 STAT. 1137, 1158, 8 U.S.C. SEC. 738(A), TO
CANCEL HIS CERTIFICATE OF NATURALIZATION  FN1  ON THE GROUND THAT IT
HAD BEEN SECURED BY FRAUD IN THAT (1) HE HAD FALSELY AND FRAUDULENTLY
REPRESENTED IN HIS PETITION THAT HE WAS ATTACHED TO THE PRINCIPLES OF
THE CONSTITUTION AND (2) HE HAD TAKEN A FALSE OATH OF ALLEGIANCE.  THE
DISTRICT COURT WAS SATISFIED BEYOND A REASONABLE DOUBT THAT KNAUER
PRACTICED FRAUD WHEN HE OBTAINED HIS CERTIFICATE OF NATURALIZATION.  IT
FOUND THAT HE HAD NOT BEEN AND IS NOT ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION AND THAT HE TOOK A FALSE OATH OF ALLEGIANCE.  IT
ACCORDINGLY ENTERED AN ORDER CANCELLING HIS CERTIFICATE AND REVOKING
THE ORDER ADMITTING HIM TO CITIZENSHIP.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  149 F.2D 519.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI WHICH WE GRANTED TO EXAMINE THAT RULING IN LIGHT OF OUR
DECISIONS IN SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, AND
BAUMGARTNER V. UNITED STATES, 322 U.S. 665. 

I. IN THE OATH OF ALLEGIANCE WHICH KNAUER TOOK, HE SWORE THAT HE
WOULD "ABSOLUTELY AND ENTIRELY RENOUNCE AND ABJURE ALL ALLEGIANCE AND
FIDELITY TO ANY FOREIGN PRINCE, POTENTATE, STATE, OR SOVEREIGNTY, AND
PARTICULARLY TO THE GERMAN REICH," THAT HE WOULD "SUPPORT AND DEFEND
THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AGAINST ALL
ENEMIES, FOREIGN AND DOMESTIC"; THAT HE WOULD "BEAR TRUE FAITH AND
ALLEGIANCE TO THE SAME" AND THAT HE TOOK "THIS OBLIGATION FREELY
WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION."  FN2  THE FIRST
AND CRUCIAL ISSUE IN THE CASE IS WHETHER KNAUER SWORE FALSELY AND
COMMITTED A FRAUD WHEN HE PROMISED UNDER OATH TO FORSWEAR ALLEGIANCE TO
THE GERMAN REICH AND TO TRANSFER HIS ALLEGIANCE TO THIS NATION.  FRAUD
CONNOTES PERJURY, FALSIFICATION, CONCEALMENT, MISREPRESENTATION.  WHEN
DENATURALIZATION IS SOUGHT ON THIS (BAUMGARTNER V. UNITED STATES,
SUPRA) AS WELL AS ON OTHER GROUNDS (SCHNEIDERMAN V. UNITED STATES,
SUPRA), THE STANDARD OF PROOF REQUIRED IS STRICT.  WE DO NOT ACCEPT
EVEN CONCURRENT FINDINGS OF TWO LOWER COURTS AS CONCLUSIVE. 
BAUMGARTNER V. UNITED STATES, SUPRA, PP. 670-671.  WE REEXAMINE THE
FACTS TO DETERMINE WHETHER THE UNITED STATES HAS CARRIED ITS BURDEN OF
PROVING BY "CLEAR, UNEQUIVOCAL, AND CONVINCING" EVIDENCE, WHICH DOES
NOT LEAVE "THE ISSUE IN DOUBT," THAT THE CITIZEN WHO IS SOUGHT TO BE
RESTORED TO THE STATUS OF AN ALIEN OBTAINED HIS NATURALIZATION
CERTIFICATE ILLEGALLY.  SCHNEIDERMAN V. UNITED STATES, SUPRA, P. 158. 

THAT STRICT TEST IS NECESSARY FOR SEVERAL REASONS.  CITIZENSHIP
OBTAINED THROUGH NATURALIZATION IS NOT A SECONDCLASS CITIZENSHIP.  IT
HAS BEEN SAID THAT CITIZENSHIP CARRIES WITH IT ALL OF THE RIGHTS AND
PREROGATIVES OF CITIZENSHIP OBTAINED BY BIRTH IN THIS COUNTRY "SAVE
THAT OF ELIGIBILITY TO THE PRESIDENCY."  LURIA V. UNITED STATES, 231
U.S. 9, 22.  THERE ARE OTHER EXCEPTIONS OF A LIMITED CHARACTER.  FN3
BUT IT IS PLAIN THAT CITIZENSHIP OBTAINED THROUGH NATURALIZATION
CARRIES WITH IT THE PRIVILEGE OF FULL PARTICIPATION IN THE AFFAIRS OF
OUR SOCIETY, INCLUDING THE RIGHT TO SPEAK FREELY, TO CRITICIZE
OFFICIALS AND ADMINISTRATORS, AND TO PROMOTE CHANGES IN OUR LAWS
INCLUDING THE VERY CHARTER OF OUR GOVERNMENT.  GREAT TOLERANCE AND
CAUTION ARE NECESSARY LEST GOOD FAITH EXERCISE OF THE RIGHTS OF
CITIZENSHIP BE TURNED AGAINST THE NATURALIZED CITIZEN AND BE USED TO
DEPRIVE HIM OF THE CHERISHED STATUS.  ILL-TEMPERED EXPRESSIONS, EXTREME
VIEWS, EVEN THE PROMOTION OF IDEAS WHICH RUN COUNTER TO OUR AMERICAN
IDEALS, ARE NOT TO BE GIVEN DISLOYAL CONNOTATIONS IN ABSENCE OF SOLID,
CONVINCING EVIDENCE THAT THAT IS THEIR SIGNIFICANCE.  ANY OTHER COURSE
WOULD RUN COUNTER TO OUR TRADITIONS AND MAKE DENATURALIZATION
PROCEEDINGS THE READY INSTRUMENT FOR POLITICAL PERSECUTIONS.  AS STATED
IN SCHNEIDERMAN V. UNITED STATES, SUPRA, P. 159, "WERE THE LAW
OTHERWISE, VALUABLE RIGHTS WOULD REST UPON A SLENDER REED, AND THE
SECURITY OF THE STATUS OF OUR NATURALIZED CITIZENS MIGHT DEPEND IN
CONSIDERABLE DEGREE UPON THE POLITICAL TEMPER OF MAJORITY THOUGHT AND
THE STRESSES OF THE TIMES." 

THESE ARE EXTREMELY SERIOUS PROBLEMS.  THEY INVOLVE NOT ONLY
FUNDAMENTAL PRINCIPLES OF OUR POLITICAL SYSTEM DESIGNED FOR THE
PROTECTION OF MINORITIES AND MAJORITIES ALIKE.  THEY ALSO INVOLVE
TREMENDOUSLY HIGH STAKES FOR THE INDIVIDUAL.  FOR DENATURALIZATION,
LIKE DEPORTATION, MAY RESULT IN THE LOSS "OF ALL THAT MAKES LIFE WORTH
LIVING."  NG FUNG HO V. WHITE, 259 U.S. 276, 284.  HENCE, WHERE THE
FATE OF A HUMAN BEING IS AT STAKE, WE MUST NOT LEAVE THE PRESENCE OF
HIS EVIL PURPOSE TO CONJECTURE.  CF. BRIDGES V. WIXON, 326 U.S. 135,
149.  FURTHERMORE, WE ARE DEALING IN CASES OF THIS KIND WITH QUESTIONS
OF INTENT.  HERE IT IS WHETHER KNAUER SWORE FALSELY ON APRIL 13, 1937. 
INTENT IS A SUBJECTIVE STATE, ILLUSORY AND DIFFICULT TO ESTABLISH IN
ABSENCE OF VOLUNTARY CONFESSION.  WHAT MAY APPEAR OBJECTIVELY TO BE
FALSE MAY STILL FALL SHORT OF ESTABLISHING AN INTENTIONAL
MISREPRESENTATION WHICH IS NECESSARY IN ORDER TO PROVE THAT THE OATH
WAS PERJURIOUS.  AND AS BAUMGARTNER V. UNITED STATES, SUPRA, INDICATES,
UTTERANCES MADE IN YEARS SUBSEQUENT TO THE OATH ARE NOT READILY TO BE
CHARGED AGAINST THE STATE OF MIND EXISTING WHEN THE OATH WAS
ADMINISTERED.  322 U.S. P. 675.  TROUBLED TIMES AND THE EMOTIONS OF THE
HOUR MAY ELICIT EXPRESSIONS OF SYMPATHY FOR OLD ACQUAINTANCES AND
RELATIVES ACROSS THE WATERS.  "FORSWEARING PAST POLITICAL ALLEGIANCE
WITHOUT RESERVATION AND FULL ASSUMPTION OF THE OBLIGATIONS OF AMERICAN
CITIZENSHIP ARE NOT AT ALL INCONSISTENT WITH CULTURAL FEELINGS IMBEDDED
IN CHILDHOOD AND YOUTH."  BAUMGARTNER V. UNITED STATES, SUPRA, P. 674. 
HUMAN TIES ARE NOT EASILY BROKEN.  OLD SOCIAL OR CULTURAL LOYALTIES MAY
STILL EXIST, THOUGH BASIC ALLEGIANCE IS TRANSFERRED HERE.  THE
FUNDAMENTAL QUESTION IS WHETHER THE NEW CITIZEN STILL TAKES HIS ORDERS
FROM, OR OWES HIS ALLEGIANCE TO, A FOREIGN CHANCELLORY.  FAR MORE IS
REQUIRED TO ESTABLISH THAT FACT THAN A SHOWING THAT SOCIAL AND CULTURAL
TIES REMAIN.  AND EVEN POLITICAL UTTERANCES, WHICH MIGHT BE SOME
EVIDENCE OF A FALSE OATH IF THEY CLUSTERED AROUND THE DATE OF
NATURALIZATION, ARE MORE AND MORE UNRELIABLE AS EVIDENCE OF THE
PERJURIOUS FALSITY OF THE OATH THE FURTHER THEY ARE REMOVED FROM THE
DATE OF NATURALIZATION. 

WE HAVE READ WITH CARE THE VOLUMINOUS RECORD IN THIS CASE.  WE HAVE
CONSIDERED THE EVIDENCE WHICH ANTEDATES KNAUER'S NATURALIZATION (APRIL
13, 1937), THE EVIDENCE WHICH CLUSTERS AROUND THAT DATE, AND THAT WHICH
FOLLOWS IT.  WE HAVE CONSIDERED KNAUER'S VERSIONS OF THE VARIOUS
EPISODES AND THE VERSIONS ADVANCED BY THE SEVERAL WITNESSES FOR THE
UNITED STATES.  WE HAVE CONSIDERED THE TESTIMONY AND OTHER EVIDENCE
OFFERED BY EACH IN CORROBORATION OR IMPEACHMENT OF THE OTHER'S CASE. 
WE HAVE CONSIDERED THE APPRAISAL OF THE VERACITY OF THE WITNESSES BY
THE JUDGE WHO SAW AND HEARD THEM AND HAVE GIVEN IT THAT "DUE REGARD"
REQUIRED BY THE RULES OF CIVIL PROCEDURE.  RULE 52(A).  WE CONCLUDE
WITH THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS THAT THERE IS
SOLID, CONVINCING EVIDENCE THAT KNAUER BEFORE THE DATE OF HIS
NATURALIZATION, AT THAT TIME, AND SUBSEQUENTLY WAS A THOROUGHGOING NAZI
AND A FAITHFUL FOLLOWER OF ADOLPH HITLER.  THE CONCLUSION IS
IRRESISTIBLE, THEREFORE, THAT WHEN HE FORSWORE ALLEGIANCE TO THE GERMAN
REICH HE SWORE FALSELY.  THE CHARACTER OF THE EVIDENCE, THE VERACITY OF
THE WITNESSES AGAINST KNAUER AS DETERMINED BY THE DISTRICT COURT, THE
CORROBORATION OF CHALLENGED EVIDENCE PRESENTED BY THE GOVERNMENT, THE
CONSISTENT PATTERN OF KNAUER'S CONDUCT BEFORE AND AFTER NATURALIZATION
CONVINCE US THAT THE TWO LOWER COURTS WERE CORRECT IN THEIR
CONCLUSIONS.  THE STANDARD OF PROOF, NOT SATISFIED IN EITHER THE
SCHNEIDERMAN OR BAUMGARTNER CASES, IS THEREFORE PLAINLY MET HERE. 

WE WILL REVIEW BRIEFLY WHAT WE, AS WELL AS THE TWO LOWER COURTS,
ACCEPT AS THE TRUE VERSION OF THE FACTS. 

AS EARLY AS 1931, KNAUER TOLD A NEWLY ARRIVED IMMIGRANT WHO CAME FROM
THE SAME TOWN IN GERMANY THAT IN HIS OPINION THE AIM OF HITLER AND THE
NAZI PARTY WAS GOOD, THAT IT WOULD PROGRESS, AND THAT IT WAS NECESSARY
TO HAVE THE SAME PARTY IN THIS COUNTRY BECAUSE OF THE JEWS AND THE
COMMUNISTS.  DURING THE SAME PERIOD, HE TOLD ANOTHER FRIEND REPEATEDLY
THAT HE WAS OPPOSED TO ANY REPUBLICAN FORM OF GOVERNMENT AND THAT
JEWISH CAPITAL WAS TO BLAME FOR GERMANY'S DOWNFALL.  HE VISITED GERMANY
FOR ABOUT SIX MONTHS IN 1934 AND WHILE THERE READ HITLER'S MEIN KAMPF. 
ON HIS RETURN HE SAID WITH PRIDE THAT HE HAD MET HITLER, AND THAT HE
HAD BEEN OFFERED A POST WITH THE GERMAN GOVERNMENT AT 600 MARKS PER
MONTH, THAT HITLER WAS THE SAVIOR OF GERMANY, THAT HITLER WAS SOLVING
THE UNEMPLOYMENT PROBLEM WHILE THIS COUNTRY WAS SUFFERING FROM JEWISH
CAPITALISM, THAT THE HITLER YOUTH ORGANIZATION WAS AN EXCELLENT
INFLUENCE ON THE CHILDREN OF GERMANY.  ON OCCASIONS IN 1936 AND 1937 HE
WAS EXPLOSIVE IN HIS CRITICISM OF THOSE WHO PROTESTED AGAINST THE
PRACTICES AND POLICIES OF HITLER. 

THE GERMAN WINTER RELIEF FUND WAS AN OFFICIAL AGENCY OF THE GERMAN
GOVERNMENT FOR WHICH GERMAN CONSULATES SOLICITED MONEY IN THE UNITED
STATES.  IN THE WINTER OF 1934-1935 KNAUER WAS ACTIVE IN OBTAINING
CONTRIBUTIONS TO THE FUND AND FORWARDED THE MONEY COLLECTED TO THE
GERMAN CONSULATE IN CHICAGO. 

THE GERMAN-AMERICAN BUND HAD A BRANCH IN MILWAUKEE.  ITS LEADER WAS
GEORGE FROBOESE - MIDWESTERN GAULEITER AND LATER NATIONAL LEADER.  THE
BUND TAUGHT AND ADVOCATED THE NAZI PHILOSOPHY - THE LEADERSHIP
PRINCIPLE, RACIAL SUPERIORITY OF THE GERMANS, THE PRINCIPLE OF THE
TOTALITARIAN STATE, PAN-GERMANISM AND OF LEBENSRAUM (LIVING SPACE).  IT
LOOKED FORWARD TO THE DAY WHEN THE NAZI FORM OF GOVERNMENT WOULD
SUPPLANT OUR FORM OF GOVERNMENT.  IT EMPHASIZED THAT ALLEGIANCE AND
DEVOTION TO HITLER WERE SUPERIOR TO ANY OBLIGATION TO THE UNITED
STATES.  FN4  KNAUER DENIED THAT HE WAS A MEMBER OF THE BUND.  BUT THE
DISTRICT COURT FOUND TO THE CONTRARY FN5  ON EVIDENCE WHICH IS SOLID
AND CONVINCING. 

KNAUER PARTICIPATED IN BUND MEETINGS IN 1936.  IN THE SUMMER OF 1936
HE AND HIS FAMILY HAD A TENT AT THE BUND CAMPS.  IN THE FALL OF 1936 HE
ENROLLED HIS YOUNG DAUGHTER IN THE YOUTH MOVEMENT OF THE BUND - A GROUP
ORGANIZED TO INSTILL THE NAZI IDEOLOGY IN THE MINDS OF CHILDREN OF
GERMAN BLOOD.  THEY WORE UNIFORMS, USED THE NAZI SALUTE, AND WERE
TAUGHT SONGS OF ALLEGIANCE TO HITLER.  KNAUER ATTENDED MEETINGS OF THIS
GROUP. 

THE FEDERATION OF GERMAN-AMERICAN SOCIETIES REPRESENTED NUMEROUS
AFFILIATED ORGANIZATIONS CONSISTING OF AMERICANS OF GERMAN DESCENT AND
SOUGHT TO COORDINATE THEIR WORK.  IT WAS THE POLICY OF THE BUND TO
INFILTRATE OLDER GERMAN SOCIETIES.  THIS EFFORT WAS MADE AS RESPECTS
THE FEDERATION.  KNAUER ASSISTED FROBOESE AND OTHERS BETWEEN 1933 AND
1936 IN ENDEAVORING TO HAVE THE SWASTIKA DISPLAYED AT CELEBRATIONS OF
THE FEDERATION.  IN 1935 KNAUER REPRIMANDED A DELEGATE TO THE
FEDERATION FOR PASSING OUT PAMPHLETS OPPOSING THE NAZI GOVERNMENT IN
GERMANY.  AT A MEETING OF THE FEDERATION IN 1935, KNAUER MOVED TO HAVE
THE FEDERATION RECOGNIZE THE SWASTIKA AS THE FLAG OF THE GERMAN REICH. 
THE MOTION FAILED TO CARRY.  IN 1936 THE SWASTIKA FLAG WAS RAISED AT A
GERMAN DAY CELEBRATION WITHOUT APPROVAL OF THE FEDERATION.  A COMMOTION
ENSUED IN WHICH BUNDISTS IN UNIFORM PARTICIPATED, AS A RESULT OF WHICH
THE SWASTIKA FLAG WAS TORN DOWN.  AT THE NEXT MEETING OF THE
FEDERATION, KNAUER PROPOSED A VOTE INDICATING APPROVAL OF THE SHOWING
OF THE SWASTIKA FLAG.  THE MOTION FAILED AND A VOTE OF CENSURE OF THE
CHAIRMAN WAS PASSED.  THE CHAIRMAN RESIGNED.  THEREUPON FROBOESE AND
OTHERS PROPOSED THE FORMATION OF THE GERMAN-AMERICAN CITIZENS ALLIANCE
TO COMPETE WITH THE FEDERATION.  IT WAS ORGANIZED EARLY IN 1937.  THE
CONSTITUTION AND ARTICLES OF INCORPORATION OF THE ALLIANCE PROVIDED
THAT ALL OF ITS ASSETS ON DISSOLUTION WERE TO BECOME THE PROPERTY OF A
GERMAN GOVERNMENT AGENCY FOR THE DISSEMINATION OF PROPAGANDA IN FOREIGN
COUNTRIES - THE DEUSCHES AUSLANDS-INSTITUT.  THE ALLIANCE WAS A FRONT
ORGANIZATION FOR THE BUND.  IT WAS DESIGNED TO BRING INTO ITS RANKS
PERSONS WHO WERE SYMPATHETIC WITH THE OBJECTIVES OF THE BUND BUT WHO
DID NOT WISH TO BE KNOWN AS BUND MEMBERS.    ON FEBRUARY 22, 1937 -
LESS THAN TWO MONTHS BEFORE KNAUER TOOK HIS OATH OF NATURALIZATION - HE
WAS ADMITTED TO MEMBERSHIP IN THE ALLIANCE AND BECAME A MEMBER OF ITS
EXECUTIVE COMMITTEE.  HIS FIRST ACTION AS A MEMBER WAS TO VOLUNTEER THE
COLLECTION OF NEWSPAPER ARTICLES THAT ATTACKED THE ALLIANCE, GERMANY,
AND GERMAN-AMERICANS.  IN 1937 AND IN THE ENSUING YEARS, KNAUER WROTE
MANY LETTERS AND TELEGRAMS TO THOSE WHO CRITICIZED THE BUND OR THE
GERMAN GOVERNMENT.  IN 1938 KNAUER WAS ELECTED VICE-PRESIDENT OF THE
ALLIANCE AND SUBSEQUENTLY PRESIDED OVER MOST OF ITS MEETINGS.  HE WAS
THE DOMINANT FIGURE IN THE ALLIANCE.  IN MAY 1937 THE GERMAN CONSUL
PRESENTED TO THE ALLIANCE THE SWASTIKA FLAG WHICH HAD BEEN TORN DOWN AT
THE FEDERATION CELEBRATION THE YEAR BEFORE.  NOT LONG AFTER HIS
NATURALIZATION KNAUER URGED THAT THE ALLIANCE SPONSOR A SOLSTICE
CEREMONY, A SOLEMN RITE AT WHICH A WOODEN SWASTIKA IS BURNED TO
SYMBOLIZE THE UNITY OF GERMAN PEOPLE EVERYWHERE.  IN AUGUST 1937 THE
ALLIANCE REFUSED TO PARTICIPATE IN AN AFFAIR SPONSORED BY A GROUP WHICH
WOULD NOT FLY THE SWASTIKA FLAG.  IN MAY 1938 KNAUER AT A MEETING OF
THE ALLIANCE READ A LEAFLET ENTITLED "AMERICA, THE GARBAGE CAN OF THE
WORLD."  IN 1939 HE ARRANGED FOR PUBLIC SHOWINGS OF FILMS DISTRIBUTED
BY AN OFFICIAL GERMAN PROPAGANDA AGENCY AND DEPICTING THE GLORIES OF
NAZISM.  FN6 

THERE WAS AN INTIMATE COOPERATION BETWEEN THE ALLIANCE AND THE BUND. 
THE BUND CAMP WAS USED FOR ALLIANCE AFFAIRS AND IT WAS AVAILABLE TO
ALLIANCE MEMBERS.  THE ALLIANCE SUPPORTED VARIOUS BUND PROGRAMS.  IT
SUPPORTED THE YOUTH GROUP OF THE BUND AND THE BUND'S SOLSTICE
CELEBRATION.  IN 1939 THE YOUTH GROUP OF THE BUND HELD A BENEFIT
PERFORMANCE FOR THE ALLIANCE.  IN 1940 IT ADMITTED THE YOUTH GROUP OF
THE BUND AT THE REQUEST OF FROBOESE.  KNAUER CONSISTENTLY DEFENDED THE
BUND WHEN IT WAS CRITICIZED, WHEN IT WAS DENIED THE USE OF A PARK OR A
HALL, WHEN ITS MEMBERS WERE ARRESTED OR CHARGED WITH OFFENSES.  IN
SPITE OF THE FACT THAT KNAUER KNEW THE REAL AIMS AND PURPOSES OF THE
BUND AND WAS AWARE OF ITS CONNECTION AND FROBOESE'S CONNECTION WITH THE
GERMAN GOVERNMENT, HE CONSISTENTLY CAME TO ITS DEFENSE.  THUS WHEN A
WISCONSIN JUDGE FREED DISTURBERS OF A BUND MEETING, HE WROTE THE JUDGE
SAYING THAT THE JUDGE'S REMARKS AGAINST THE BUND WERE A "SLANDER OF A
PATRIOTIC AMERICAN ORGANIZATION."  HE SUBSCRIBED TO THE OFFICIAL BUND
NEWSPAPER AND TO A PROPAGANDA MAGAZINE ISSUED AND CIRCULATED BY AN
AGENCY OF THE GERMAN GOVERNMENT.  HE HELD SHARES IN THE HOLDING COMPANY
OF THE BUND CAMP WHICH WAS STARTED IN 1939.  A PHOTOGRAPH TAKEN AT THE
DEDICATION OF THE NEW BUND CAMP IN 1939 SHOWS KNAUER AMONG A GROUP OF
PROMINENT BUND LEADERS WITH ARM UPRAISED IN THE NAZI SALUTE.  HE OWNED
A COTTAGE AT THE BUND CAMP.  HE USED THE NAZI SALUTE AT THE BEGINNING
AND END OF HIS SPEECHES AND AT THE BUND MEETINGS. 

IN MAY 1938 KNAUER AND FROBOESE FORMED THE AMERICAN PROTECTIVE LEAGUE
WITH A SECRET LIST OF MEMBERS.  KNAUER WAS ELECTED A DIRECTOR.  A
CONSTITUTION AND BYLAWS WERE ADOPTED AND COPIES MAILED BY KNAUER AND
FROBOESE TO HITLER.  ONE BUERK WAS A GERMAN AGENT OPERATING IN THIS
COUNTRY AND LATER INDICTED FOR FAILING TO REGISTER AS SUCH.  IN 1939
THE GERMAN CONSULATE IN CHICAGO SUPERVISED THE RECRUITING OF SKILLED
WORKERS IN THAT REGION FOR RETURN TO GERMANY FOR WORK IN GERMAN
INDUSTRIES.  THE GERMAN CONSUL, BUERK, FROBOESE AND KNAUER CONDUCTED
THE RECRUITING.  KNAUER PARTICIPATED ACTIVELY IN INTERVIEWING
CANDIDATES.  AT INTERVALS FAREWELL PARTIES WERE GIVEN BY KNAUER AND
FROBOESE TO THE RETURNING WORKERS AND THEIR FAMILIES. 

IMPORTANT EVIDENCE IMPLICATING KNAUER IN PROMOTING THE CAUSE OF
HITLER IN THIS COUNTRY WAS GIVEN BY A MRS. MERTON.  SHE TESTIFIED THAT,
PROMPTED SOLELY BY PATRIOTIC MOTIVES, SHE ENTERED THE EMPLOY OF
FROBOESE IN 1938 IN ORDER TO OBTAIN EVIDENCE AGAINST THE BUND AND ITS
MEMBERS.  THE TRUTH OF HER TESTIMONY WAS VIGOROUSLY DENIED BY KNAUER. 
BUT THE DISTRICT COURT BELIEVED HER VERSION, AS DID THE CIRCUIT COURT
OF APPEALS.  AND WE ARE PERSUADED ON A CLOSE READING OF THE RECORD NOT
ONLY THAT HER TESTIMONY WAS STRONGLY CORROBORATED BUT ALSO THAT
KNAUER'S ATTEMPTS TO DISCREDIT HER TESTIMONY DO NOT RING TRUE.  FN7 

HER TESTIMONY MAY BE SUMMARIZED AS FOLLOWS:  SHE ACTED AS SECRETARY
TO FROBOESE IN 1938.  DURING THE PERIOD OF HER EMPLOY FROBOESE AND
KNAUER WORKED CLOSELY TOGETHER ON BUND MATTERS.  HE HELPED FROBOESE IN
THE PREPARATION OF ARTICLES FOR THE BUND NEWSPAPER, OF SPEECHES, AND OF
BUND CORRESPONDENCE.  HE HELPED FROBOESE PREPARE RESOLUTIONS TO BE
OFFERED AT THE 1938 BUND CONVENTION CALLING FOR A WHITE-GENTILE-RULED
AMERICA.  WHEN FROBOESE LEFT THE CITY TO ATTEND THE CONVENTION, HE TOLD
HER TO CONTACT KNAUER FOR ADVICE CONCERNING BUND MATTERS.  LETTERS
SIGNED BY FROBOESE AND KNAUER JOINTLY WERE SENT TO HITLER AND OTHER
NAZI OFFICIALS.  ONE CONTAINED A LIST OF 700 GERMAN NATIONALS.  ONE WAS
THE CONSTITUTION AND BY-LAWS OF THE AMERICAN PROTECTIVE LEAGUE WHICH WE
HAVE ALREADY MENTIONED.  ONE TO HESS SAID THEY HAD TO LAY LOW FOR
AWHILE, THAT THERE WAS AN INVESTIGATION ON.  A BIRTHDAY GREETING TO
HITLER FROM FROBOESE AND KNAUER CLOSED WITH THE PHRASE, "IN BLIND
OBEDIENCE WE FOLLOW YOU."  KNAUER TOLD HER NEVER TO REVEAL THAT THE
ALLIANCE AND THE BUND WERE LINKED TOGETHER.  ONE DAY SHE ASKED KNAUER
WHAT THE BUND WAS.  HIS REPLY WAS THAT THE BUND "WAS THE FUEHRER'S GRIP
ON AMERICAN DEMOCRACY."  SHE REMINDED KNAUER THAT HE WAS AN AMERICAN
CITIZEN.  HE REPLIED, "THAT IS A GOOD THING TO HIDE BEHIND." 

WE HAVE GIVEN MERELY THE HIGHLIGHTS OF THE EVIDENCE.  MUCH
CORROBORATIVE DETAIL COULD BE ADDED.  BUT WHAT WE HAVE RELATED PRESENTS
THE GIST OF THE CASE AGAINST KNAUER.  IF ISOLATED PARTS OF THE EVIDENCE
AGAINST KNAUER WERE SEPARATELY CONSIDERED, THEY MIGHT WELL CARRY
DIFFERENT INFERENCES.  HIS ALERTNESS TO RISE TO THE DEFENSE OF GERMANS
OR OF AMERICANS OF GERMAN DESCENT COULD WELL REFLECT, IF STANDING AS
ISOLATED INSTANCES, ATTEMPTS TO PROTECT A MINORITY AGAINST WHAT HE
DEEMED OPPRESSIVE PRACTICES.  SOCIAL AND CULTURAL TIES MIGHT BE
COMPLETE AND ADEQUATE EXPLANATIONS.  EVEN UTTERANCES OF A POLITICAL
NATURE WHICH REFLECTED TOLERANCE OR APPROVAL OF THE NAZI PROGRAM IN
GERMANY MIGHT CARRY NO SINISTER CONNOTATION, IF THEY WERE CONSIDERED BY
THEMSELVES.  FOR MANY NATIVE-BORNS IN THIS COUNTRY DID NOT AWAKEN TO
THE FULL IMPLICATIONS OF THE NAZI PROGRAM UNTIL WAR CAME TO US.  AND AS
WE STATED IN SCHNEIDERMAN V. UNITED STATES, SUPRA, P. 139:  "WHATEVER
ATTITUDE WE MAY INDIVIDUALLY HOLD TOWARD PERSONS AND ORGANIZATIONS THAT
BELIEVE IN OR ADVOCATE EXTENSIVE CHANGES IN OUR EXISTING ORDER, IT
SHOULD BE OUR DESIRE AND CONCERN AT ALL TIMES TO UPHOLD THE RIGHT OF
FREE DISCUSSION AND FREE THINKING TO WHICH WE AS A PEOPLE CLAIM PRIMARY
ATTACHMENT." 

BUT WE HAVE HERE MUCH MORE THAN POLITICAL UTTERANCES, MUCH MORE THAN
A CRUSADE FOR THE PROTECTION OF MINORITIES.  THIS RECORD PORTRAYS A
PROGRAM OF ACTION TO FURTHER HITLER'S CAUSE IN THIS NATION - A PROGRAM
OF INFILTRATION WHICH CONFORMS TO THE PATTERN ADOPTED BY THE NAZIS IN
COUNTRY AFTER COUNTRY.  THE TIES WITH THE GERMAN REICH WERE TOO
INTIMATE, THE PATTERN OF CONDUCT TOO CONSISTENT, THE OVERT ACTS TOO
PLAIN FOR US TO CONCLUDE THAT KNAUER WAS MERELY EXERCISING HIS RIGHT OF
FREE SPEECH EITHER TO SPREAD TOLERANCE IN THIS COUNTRY OR TO ADVOCATE
CHANGES HERE. 

MOREOVER, THE CASE AGAINST KNAUER IS NOT CONSTRUCTED SOLELY FROM HIS
ACTIVITIES SUBSEQUENT TO APRIL 13, 1937 - THE DATE OF HIS
NATURALIZATION.  THE EVIDENCE PRIOR TO HIS NATURALIZATION, THAT WHICH
CLUSTERS AROUND THAT DATE, AND THAT WHICH FOLLOWS IN THE NEXT FEW YEARS
IS COMPLETELY CONSISTENT.  IT CONFORMS TO THE SAME PATTERN.  WE DO NOT
HAVE TO GUESS WHETHER SUBSEQUENT TO NATURALIZATION HE HAD A CHANGE OF
HEART AND THREW HIMSELF WHOLEHEARTEDLY INTO A NEW CAUSE.  WE HAVE
CLEAR, CONVINCING, AND SOLID EVIDENCE THAT AT ALL RELEVANT TIMES HE WAS
A THOROUGHGOING NAZI BENT ON SPONSORING HITLER'S CAUSE HERE.  AND THIS
CASE, UNLIKE THE BAUMGARTNER CASE, IS NOT COMPLICATED BY THE FACT THAT
WHEN THE ALIEN TOOK HIS OATH HITLER WAS NOT IN POWER.  ON APRIL 13,
1937, HITLER WAS IN FULL COMMAND.  THE EVIDENCE IS MOST CONVINCING THAT
AT THAT TIME, AS WELL AS LATER, KNAUER'S LOYALTY RAN TO HIM, NOT TO
THIS COUNTRY. 

THE DISTRICT COURT PROPERLY RULED THAT MEMBERSHIP IN THE BUND WAS NOT
IN ITSELF SUFFICIENT TO PROVE FRAUD WHICH WOULD WARRANT REVOCATION OF A
DECREE OF NATURALIZATION.  OTHERWISE, GUILT WOULD REST ON IMPLICATION,
CONTRARY TO THE RULE OF THE SCHNEIDERMAN AND BAUMGARTNER CASES.  BUT WE
HAVE HERE MUCH MORE THAN THAT.  WE HAVE A CLEAR COURSE OF CONDUCT, OF
WHICH MEMBERSHIP IN THE BUND WAS A MANIFESTATION, DESIGNED TO PROMOTE
THE NAZI CAUSE IN THIS COUNTRY.  THIS IS NOT A CASE OF AN UNDERLING
CAUGHT UP IN THE ENTHUSIASM OF A MOVEMENT, DRIVEN BY TIES OF BLOOD AND
OLD ASSOCIATIONS TO EXTREME ATTITUDES, AND PERHAPS UNAWARE OF THE
CONFLICT OF ALLEGIANCE IMPLICIT IN HIS ACTIONS.  KNAUER IS AN ASTUTE
PERSON.  HE IS A LEADER - THE DOMINATING FIGURE IN THE CAUSE HE
SPONSORED, A LEADING VOICE IN THE COUNCILS OF THE BUND, THE SPOKESMAN
IN THE PROGRAM FOR SYSTEMATIC AGITATION OF NAZI VIEWS.  HIS ACTIVITIES
PORTRAY A SHREWD, CALCULATING, AND VIGILANT PROMOTION OF AN ALIEN
CAUSE.  THE CONCLUSION SEEMS TO US PLAIN THAT WHEN KNAUER FORSWORE
ALLEGIANCE TO HITLER AND THE GERMAN REICH HE SWORE FALSELY.  FN8 

II.  IT IS SAID, HOWEVER, THAT THE ISSUE OF FRAUD MAY NOT BE TRIED IN
THIS CASE.  AN ANALOGY IS SOUGHT TO BE DRAWN TO THOSE CASES WHERE
RELIEF AGAINST A PRIOR JUDGMENT, ON THE GROUND THAT PERJURED TESTIMONY
WAS INTRODUCED AT THE TRIAL, WAS DENIED.  UNITED STATES V.
THROCKMORTON, 98 U.S. 61, 66.  AND SEE TOLEDO SCALE CO. V. COMPUTING
SCALE CO., 261 U.S. 399, 421.  BUT THAT RULE GOES NO FURTHER THAN TO
SAY THAT THE ISSUE OF FRAUD CAN BECOME RES JUDICATA IN THE JUDGMENT
SOUGHT TO BE SET ASIDE.  WE NEED NOT CONSIDER THE EXTENT TO WHICH A
DECREE OF NATURALIZATION MAY CONSTITUTE A FINAL DETERMINATION OF ISSUES
OF FACT, THE ESTABLISHMENT OF WHICH CONGRESS HAS MADE CONDITIONS
PRECEDENT TO NATURALIZATION.  FN9  THOSE FACTS RELATE TO THE PAST - TO
BEHAVIOR AND CONDUCT.  BUT THE OATH IS IN A DIFFERENT CATEGORY.  IT
RELATES TO A STATE OF MIND AND IS A PROMISE OF FUTURE CONDUCT.  IT IS
THE FINAL ACT BY WHICH AN ALIEN ACQUIRES THE STATUS OF CITIZEN.  IT
REQUIRES FORSWEARING OF ALLEGIANCE IN GOOD FAITH AND WITH NO MENTAL
RESERVATIONS.  THE OATH BEING THE FINAL STEP, NO EVIDENCE IS HEARD AT
THAT TIME.  IT COMES AFTER THE MATTERS IN ISSUE HAVE BEEN RESOLVED IN
FAVOR OF THE APPLICANT FOR CITIZENSHIP.  HENCE, NO OPPORTUNITY EXISTS
FOR THE EXAMINER OR THE JUDGE TO DETERMINE IF WHAT THE NEW CITIZEN
SWORE WAS TRUE, WAS IN FACT FALSE.  HENCE, THE ISSUE OF FRAUD IN THE
OATH CANNOT BECOME RES JUDICATA IN THE DECREE SOUGHT TO BE SET ASIDE. 
FOR FRAUD IN THE OATH WAS NOT IN ISSUE IN THE PROCEEDINGS AND NEITHER
WAS ADJUDICATED NOR COULD HAVE BEEN ADJUDICATED. 

MOREOVER, WHEN AN ALIEN TAKES THE OATH WITH RESERVATIONS OR DOES NOT
IN GOOD FAITH FORSWEAR LOYALTY AND ALLEGIANCE TO THE OLD COUNTRY, THE
DECREE OF NATURALIZATION IS OBTAINED BY DECEIT.  THE PROCEEDING ITSELF
IS THEN FOUNDED ON FRAUD.  A FRAUD IS PERPETRATED ON THE NATURALIZATION
COURT.  WE HAVE RECENTLY CONSIDERED THE BROAD POWERS OF EQUITY TO SET
ASIDE A DECREE FOR FRAUD PRACTICED ON THE COURT WHICH GRANTED IT.
HAZEL-ATLAS CO. V. HARTFORD CO., 322 U.S. 238.  THE PRESENT SUIT IS AN
EQUITY SUIT.  LURIA V. UNITED STATES, SUPRA, PP. 27-28.  BUT WE NEED
NOT CONSIDER IN THIS CASE WHAT THE HISTORIC POWERS OF EQUITY MIGHT BE
IN THIS SITUATION.  FOR CONGRESS HAS PROVIDED THAT FRAUD IS A BASIS FOR
CANCELLATION OF CERTIFICATES OF NATURALIZATION IN PROCEEDINGS
INSTITUTED BY THE UNITED STATES.  FN10  THE LEGISLATIVE HISTORY OF THAT
ENACTMENT SHOWS THAT FALSE SWEARING WAS ONE OF THE EVILS INCLUDED IN
THE STATUTORY GROUNDS FOR DENATURALIZATION.  FN11  THAT POWER WAS
GRANTED TO GIVE ADDED PROTECTION AGAINST FRAUD COMMITTED ON THE
NATURALIZATION COURTS.  UNITED STATES V. NESS, 245 U.S. 319, 324, 327. 
CANCELLATION OF A CERTIFICATE ON THE GROUNDS OF FRAUD INCLUDES
CANCELLATION FOR FALSELY SWEARING THAT THE APPLICANT FORSWORE
ALLEGIANCE TO HIS NATIVE COUNTRY.  THOUGH THE MAKING OF A FALSE OATH BE
CALLED INTRINSIC FRAUD (SEE UNITED STATES V. THROCKMORTON, SUPRA), IT
IS WITHIN THE REACH OF THE STATUTE. 

WE HAVE NO DOUBT OF THE POWER OF CONGRESS TO PROVIDE FOR
DENATURALIZATION ON THE GROUND OF FRAUD.  THE CONSTITUTION GRANTS
CONGRESS POWER "TO ESTABLISH AN UNIFORM RULE OF NATURALIZATION ..." 
ARTICLE I, SEC. 8.  THE POWER OF DENATURALIZATION COMES FROM THAT
PROVISION AND THE "NECESSARY AND PROPER" CLAUSE IN ARTICLE I, SEC. 8. 
SEE TUTUN V. UNITED STATES, 270 U.S. 568, 578.  WE DO NOT HAVE HERE A
CASE WHERE, AFTER AN ALIEN HAS BEEN NATURALIZED, CONGRESS PROVIDES NEW
GROUNDS WHICH ARE INVOKED FOR CANCELLATION OF HIS CERTIFICATE.  FRAUD -
THE BASIS OF REVOCATION WITH WHICH WE ARE NOW CONCERNED - WAS A
STATUTORY GROUND FOR DENATURALIZATION WHEN KNAUER TOOK HIS OATH. 
MOREOVER, WE ARE NOT FACED WITH THE QUESTION OF WHAT LIMITS THERE MAY
BE TO CONDITIONS FOR DENATURALIZATION WHICH CONGRESS MAY PROVIDE.  A
CERTIFICATE OBTAINED BY FRAUD IS CLEARLY WITHIN THE REACH OF
CONGRESSIONAL POWER.  AS STATED IN JOHANNESSEN V. UNITED STATES, 225
U.S. 227, 241: "AN ALIEN HAS NO MORAL NOR CONSTITUTIONAL RIGHT TO
RETAIN THE PRIVILEGES OF CITIZENSHIP IF, BY FALSE EVIDENCE OR THE LIKE,
AN IMPOSITION HAS BEEN PRACTICED UPON THE COURT, WITHOUT WHICH THE
CERTIFICATE OF CITIZENSHIP COULD NOT AND WOULD NOT HAVE BEEN ISSUED." 
AND SEE LURIA V. UNITED STATES, SUPRA, PP. 23-24; UNITED STATES V.
NESS, SUPRA, P. 327.  TO HOLD OTHERWISE WOULD BE AN ANOMALY.  IT WOULD
IN EFFECT MEAN THAT WHERE A PERSON THROUGH CONCEALMENT,
MISREPRESENTATION OR DECEIT PERPETRATED A FRAUD ON THE NATURALIZATION
COURT, THE UNITED STATES WOULD BE REMEDILESS TO CORRECT THE WRONG. 
THAT WOULD INDEED PUT A PREMIUM ON THE SUCCESSFUL PERPETRATION OF
FRAUDS AGAINST THE NATION.  WE CANNOT CONCLUDE THAT CONGRESS, WHICH MAY
WITHHOLD THE RIGHT OF NATURALIZATION (TUTUN V. UNITED STATES, SUPRA, P.
578), IS SO POWERLESS.  WE ADHERE TO THE PRIOR RULINGS OF THIS COURT
THAT CONGRESS MAY PROVIDE FOR THE CANCELLATION OF CERTIFICATES OF
NATURALIZATION ON THE GROUND OF FRAUD IN THEIR PROCUREMENT AND THUS
PROTECT THE COURTS AND THE NATION AGAINST PRACTICES OF ALIENS WHO BY
DECEITFUL METHODS OBTAIN THE CHERISHED STATUS OF CITIZENSHIP HERE, THE
BETTER TO SERVE A FOREIGN MASTER.    SINCE FRAUD IN THE OATH OF
ALLEGIANCE WHICH KNAUER TOOK IS SUFFICIENT TO SUSTAIN THE JUDGMENT
BELOW, WE DO NOT REACH THE OTHER QUESTIONS WHICH HAVE BEEN ARGUED. 
AFFIRMED. 

FN1  SEC. 338(A) OF THE NATIONALITY ACT OF 1940 PROVIDES: 

"IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT ATTORNEYS FOR THE
RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD CAUSE THEREFOR, TO
INSTITUTE PROCEEDINGS IN ANY COURT SPECIFIED IN SUBSECTION (A) OF
MAY RESIDE AT THE TIME OF BRINGING SUIT, FOR THE PURPOSE OF REVOKING
AND SETTING ASIDE THE ORDER ADMITTING SUCH PERSON TO CITIZENSHIP AND
CANCELING THE CERTIFICATE OF NATURALIZATION ON THE GROUND OF FRAUD OR
ON THE GROUND THAT SUCH ORDER AND CERTIFICATE OF NATURALIZATION WERE
ILLEGALLY PROCURED." 

FN2  SINCE 1795 AN ALIEN SEEKING ADMISSION TO CITIZENSHIP IN THIS
COUNTRY HAS BEEN REQUIRED TO SWEAR THAT HE RENOUNCED ALLEGIANCE TO ALL
FOREIGN POWERS, INCLUDING HIS NATIVE LAND.  1 STAT. 103, 414; 2 STAT.
153, 154; R.S. 2165; 34 STAT. 596, 598; 54 STAT. 1137, 1157. 

FN3  THUS A NATURALIZED CITIZEN MUST WAIT SEVEN YEARS BEFORE HE IS
ELIGIBLE TO SIT IN THE HOUSE (ARTICLE I, SEC. 2) AND NINE YEARS BEFORE
HE CAN ENTER THE SENATE.  ARTICLE I, SEC. 3.  FURTHERMORE, A
NATURALIZED CITIZEN MAY LOSE HIS AMERICAN CITIZENSHIP BY RESIDING
ABROAD FOR STATED PERIODS.  SECS. 404-406.  NATIONALITY ACT OF 1940, 54
STAT. 1137, 1170, 8 U.S.C. SECS. 804-806.  SEE PERKINS V. ELG, 307 U.S.
325, 329. 

FN4  A NUMBER OF DENATURALIZATION CASES IN THE DISTRICT COURT RAISED
THE QUESTION AS TO THE NATURE OF THE BUND.  ALL OF THEM WERE
CONSOLIDATED FOR TRIAL ON THAT SINGLE ISSUE, INCLUDING KNAUER'S CASE. 
AT THE CONCLUSION OF THE CONSOLIDATED TRIAL ON THAT ISSUE, KNAUER'S
CASE WAS SEPARATELY TRIED.  BUT THE FINDINGS AS TO THE NATURE OF THE
BUND WERE MADE ON THE BASIS OF EVIDENCE IN THE CONSOLIDATED TRIAL.  THE
CONSOLIDATION OF THE CASES WAS CHALLENGED AND UPHELD IN THE CIRCUIT
COURT OF APPEALS.  149 F.2D P. 520.  NO SUCH ERROR IS ALLEGED HERE. 

THESE FINDINGS BY THE DISTRICT COURT AS TO THE NATURE OF THE BUND ARE
LIKEWISE NOT CHALLENGED HERE.  FOR SIMILAR FINDINGS RESPECTING THE
NATURE OF THE BUND SEE UNITED STATES V. SCHUCHHARDT, 49 F.SUPP.  567,
569; UNITED STATES V. RITZEN, 50 F.SUPP.  301, 302; UNITED STATES V.
HAAS, 51 F.SUPP.  910, 911; UNITED STATES V. WOLTER, 53 F.SUPP.  417,
418-425; UNITED STATES V. SAUTTER, 54 F.SUPP.  22; UNITED STATES V.
HOLTZ, 54 F.SUPP.  63, 66-70; UNITED STATES V. BAECKER, 55 F.SUPP. 
403, 404-408; UNITED STATES V. BREGLER, 55 F.SUPP.  837, 839-840;
UNITED STATES V. WILMOVSKI, 56 F.SUPP.  63, 64; UNITED STATES V.
CLAASSEN, 56 F.SUPP.  71, 72. 

FN5  "I FIND AS A FACT THAT THE DEFENDANT WAS A MEMBER OF THE
MILWAUKEE UNIT OF THE BUND; THAT HE WAS SO CONSIDERED BY ITS OFFICERS
AND MEMBERS; THAT MOST OF HIS INTERESTS AND ACTIVITIES WERE IN BEHALF
OF THE BUND; AND THAT, THOUGH COMPLETELY AWARE OF ITS AIMS AND
PURPOSES, HE DELIBERATELY VIGOROUSLY PROMOTED THE OBJECTS OF THE
BUND." 

FN6  IN 1937 HE SAID TO ONE WITNESS, AN AMERICAN OF GERMAN ANCESTRY,
"NOW, ISN'T THAT WONDERFUL WHAT HITLER DID OVER THERE?  DON'T YOU LIKE
IT?  WHEN THE AMERICAN GOVERNMENT WOULD TAKE THE SAME LINE, THEN IT
GOES IN GERMANY LIKE HITLER DID, THAT WILL BE FINE." 

BEFORE AND AFTER HIS NATURALIZATION HE CONTINUOUSLY PREACHED THE NAZI
CONCEPT OF RACIAL UNITY AMONG THOSE OF GERMAN BLOOD.  IN 1937 HE
ADDRESSED MEMBERS OF THE ALLIANCE ON THE SUBJECT OF THE GERMAN VOLK,
SAYING "WITH THE RISE AND FALL OF THE GERMAN NATION, WE RISE AND
FALL." 

IN 1940 HE SAID IN CONVERSATION WITH ANOTHER WITNESS, IN REPLY TO THE
WITNESS' REMARK THAT HE WAS AN AMERICAN CITIZEN, "I AM A GERMAN
AMERICAN."  WHEN TOLD THAT THERE WAS NO HYPHEN IN THE WORD, HE REPLIED,
"I LEAN TOWARD AND FAVOR THE GERMANS."  WHEN ASKED IF HE WOULD FIGHT
FOR AMERICA IF THE GERMANS INVADED THIS COUNTRY, HE REFUSED TO ANSWER,
SAYING, "I AM A GERMAN-AMERICAN." 

IN 1941 THE WISCONSIN FEDERATION OF GERMAN-AMERICAN SOCIETIES PLEDGED
ITSELF TO UPHOLD THE CONSTITUTION OF THE UNITED STATES, TO MAINTAIN THE
DEMOCRATIC FORM OF GOVERNMENT, AND TO FIGHT THE TOTALITARIAN FORM OF
GOVERNMENT AND EVERYTHING IT STOOD FOR.  KNAUER ISSUED AN APPEAL TO
GERMAN-AMERICANS, STATING THAT THAT DECLARATION CONSTITUTED OPEN
WARFARE AGAINST THE THEN GERMAN GOVERNMENT AND WAS A PLAN TO CREATE
DISCORD AMONG GERMANS AND TO INDUCE THOSE IN GERMANY TO REVOLT AGAINST
THE GERMAN REICH. 

FN7  THE PEOPLE WHOM MRS. MERTON AT THE TIME OF HER WORK FOR FROBOESE
TOLD OF HER MISSION CORROBORATED HER.  ONE OF THEM ON OCCASION TOOK HER
TO THE FROBOESE HOME AND SAW HER ENTER.  AT THE TIME OF THE TRIAL
FROBOESE WAS DEAD.  MRS. FROBOESE DENIED THAT MRS. MERTON HAD EVER
WORKED FOR FROBOESE OR THAT SHE HAD EVER SEEN HER.  THE TESTIMONY OF
ANOTHER WITNESS, HOWEVER, RELATED A CONVERSATION WITH MRS. FROBOESE IN
WHICH SHE SAID THAT A MRS. MERTON HAD WORKED FOR FROBOESE.  KNAUER
PERSISTENTLY DENIED THAT HE EVER SAW OR KNEW MRS. MERTON.  BUT MRS.
MERTON'S HUSBAND AND A NEIGHBOR IDENTIFIED KNAUER AS THE MAN WHO CALLED
ON MRS. MERTON AT HER HOME ONE DAY. 

FN8  THE FOLLOWING FINDING OF THE DISTRICT COURT IS A FAIR CONCLUSION
FROM THIS RECORD: 

"THE ATTACHMENT OF THE DEFENDANT KNAUER IN THE YEAR 1931 TO THE AIMS
AND OBJECTS OF HITLER'S NATIONAL SOCIALIST MOVEMENT, HIS ALLEGIANCE AND
ATTACHMENT TO THE THIRD REICH AS MANIFESTED BY HIS STATEMENTS AND HIS
FREQUENT USE OF THE NAZI SALUTE IN PUBLIC, HIS DEVOTION TO AND
PROMOTION OF THE DISPLAY OF THE SWASTIKA FLAG AND CEREMONIES USING IT
IN SYMBOLIC PLEDGE OF FIDELITY TO THE REICH, HIS FIERCE CONCERN OVER
THE GOOD NAME AND HONOR OF THE GERMAN RACE, HIS BITTER AND ACRIMONIOUS
DENUNCIATION OF EVERYTHING WHICH INTERFERED WITH OR STOOD IN THE WAY OF
THE FORTUNES OF THE GERMAN REICH, HIS BELIEF IN AND ADVOCACY OF THE
GERMAN RACIAL CONCEPT OF DUTY AND OBLIGATION OF ALL GERMANS TO THE
FATHERLAND REGARDLESS OF CITIZENSHIP, HIS BELIEF IN AND ATTACHMENT TO
THE PRINCIPLES AND CONCEPTS OF NATIONAL SOCIALISM, HIS ESPOUSAL OF THE
AIMS AND OBJECTS OF THE GERMAN-AMERICAN BUND AND HIS ACTIVE
PARTICIPATION THEREIN FOR THE PROMOTION OF ITS AIMS AND OBJECTS, HIS
PROMOTION AND DOMINATION OF THE GERMAN-AMERICAN CITIZENS ALLIANCE TO
FURTHER THE AIMS AND OBJECTS OF THE BUND, HIS UNINTERRUPTED EFFORT BY
WORD AND DEED TO POLITICALLY ACTIVATE OUR GERMAN-AMERICAN PEOPLE IN THE
INTERESTS OF THE GERMAN REICH, HIS PERSISTENT EFFORTS AMONG GERMAN
AMERICANS, BY MEANS OF CHARITABLE PROGRAMS, SPEECHES AND MOVIE FILMS,
TO REVIVE IN THEM A FEELING OF FIDELITY AND LOYALTY TO THE GERMAN
REICH, THE ASSISTANCE HE RENDERED TO THE CONSULAR REPRESENTATIVES OF
THE REICH IN THE ATTAINMENT OF MATTERS ADVANCING GERMAN INTERESTS, HIS
FERVENT DEVOTION AND BLIND ATTACHMENT TO THE FUEHRER AT A TIME WHEN THE
GERMAN REICH WAS HOSTILE TO THE UNITED STATES, HIS LACK OF AFFECTION
FOR OR DEVOTION TO THE UNITED STATES, HIS CYNICAL EVALUATION OF HIS OWN
AMERICAN CITIZENSHIP, AS WELL AS THE EVIDENCE IN ITS ENTIRETY, CAN BE
INTERPRETED ONLY AS ESTABLISHING, AND I SO FIND, THAT THE DEFENDANT AT
THE TIME HE FILED HIS PETITION FOR NATURALIZATION DID NOT IN GOOD FAITH
INTEND TO RENOUNCE ABSOLUTELY AND FOREVER ALL ALLEGIANCE AND FIDELITY
TO THE GERMAN REICH, AND AT THE TIME OF HIS NATURALIZATION AND AT ALL
TIMES THEREAFTER THE DEFENDANT DID NOT IN FACT RENOUNCE AND ABJURE ALL
ALLEGIANCE AND FIDELITY TO THE GERMAN REICH, BUT INTENDED TO RETAIN AND
DID RETAIN ALLEGIANCE AND FIDELITY TO THE GERMAN GOVERNMENT." 

FN9  AT THE TIME OF KNAUER'S NATURALIZATION THE ACT PROVIDED: 

"NO ALIEN SHALL BE ADMITTED TO CITIZENSHIP UNLESS (1) IMMEDIATELY
PRECEDING THE DATE OF HIS PETITION THE ALIEN HAS RESIDED CONTINUOUSLY
WITHIN THE UNITED STATES FOR AT LEAST FIVE YEARS AND WITHIN THE COUNTY
WHERE THE PETITIONER RESIDED AT THE TIME OF FILING HIS PETITION FOR AT
LEAST SIX MONTHS, (2) HE HAS RESIDED CONTINUOUSLY WITHIN THE UNITED
STATES FROM THE DATE OF HIS PETITION UP TO THE TIME OF HIS ADMISSION TO
CITIZENSHIP, AND (3) DURING ALL THE PERIODS REFERRED TO IN THIS
SUBDIVISION HE HAS BEHAVED AS A PERSON OF GOOD MORAL CHARACTER,
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES,
AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE UNITED
STATES.  AT THE HEARING OF THE PETITION, RESIDENCE IN THE COUNTY WHERE
THE PETITIONER RESIDES AT THE TIME OF FILING HIS PETITION, AND THE
OTHER QUALIFICATIONS REQUIRED BY THIS SUBDIVISION DURING SUCH
RESIDENCE, SHALL BE PROVED BY THE ORAL TESTIMONY OF AT LEAST TWO
CREDIBLE WITNESSES, CITIZENS OF THE UNITED STATES, IN ADDITION TO THE
AFFIDAVITS REQUIRED BY THIS ACT TO BE INCLUDED IN THE PETITION."  SEC.
6(B) OF THE ACT OF MARCH 2, 1929, 45 STAT. 1512, 1513-1514 WHICH
REPLACED SEC. 4, SUBDIVISION FOURTH, A SIMILAR PROVISION OF THE ACT OF
JUNE 29, 1906, 34 STAT. 596, 598. 

FN10  BY SEC. 15 OF THE ACT OF JUNE 29, 1906, 34 STAT. 601, IT WAS
PROVIDED: 

"THAT IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT ATTORNEYS
FOR THE RESPECTIVE DISTRICTS, UPON AFFIDAVIT SHOWING GOOD CAUSE
THEREFOR, TO INSTITUTE PROCEEDINGS IN ANY COURT HAVING JURISDICTION TO
NATURALIZE ALIENS IN THE JUDICIAL DISTRICT IN WHICH THE NATURALIZED
CITIZEN MAY RESIDE AT THE TIME OF BRINGING THE SUIT, FOR THE PURPOSE OF
SETTING ASIDE AND CANCELING THE CERTIFICATE OF CITIZENSHIP ON THE
GROUND OF FRAUD OR ON THE GROUND THAT SUCH CERTIFICATE OF CITIZENSHIP
WAS ILLEGALLY PROCURED...." 

IT WAS HELD IN UNITED STATES V. NESS, 245 U.S. 319, 325, THAT THIS
STATUTORY POWER TO CANCEL CERTIFICATES OF NATURALIZATION IS BROADER
THAN THAT AFFORDED IN EQUITY, INDEPENDENTLY OF STATUTE, TO SET ASIDE
JUDGMENTS. 

FN11  H. REP. NO. 1789, 59TH CONG., 1ST SESS., P. 2: 

"THE CONDITIONS THAT HAVE BEEN REVEALED BY SPECIAL INVESTIGATIONS OF
THE FRAUDS COMMITTED AGAINST THE NATURALIZATION LAWS RENDER WHOLLY
UNNECESSARY ANY ARGUMENT UPON THE NECESSITY AT THIS TIME OF FULLY
EXERCISING ALL THE AUTHORITY IN NATURALIZATION MATTERS CONFERRED BY THE
CONSTITUTION UPON CONGRESS." 

     .         .         .         .         . 

"THE WORST AND MOST GLARING FRAUDS HAVE CONSISTED IN PERJURY, FALSE
IMPERSONATION, AND THE SALE AND USE OF FALSE AND COUNTERFEIT
CERTIFICATES OF NATURALIZATION." 

AS STATED BY A SPONSOR OF THE MEASURE ON THE FLOOR OF THE HOUSE: 

"THE BOON OF AMERICAN CITIZENSHIP MUST NOT BE CHEAPENED BY LAX AND
UNCONVENTIONAL METHODS OF COURTS AND PUBLIC OFFICERS WHO ADMINISTER THE
LAW, BUT ONCE GRANTED IT SHOULD ENDURE FOR ALL TIME.  IT IS CONFERRED
BY THE FEDERAL CONSTITUTION AND BY LAWS AUTHORIZED BY THE
CONSTITUTION.  WHEN CITIZENSHIP IS ONCE LEGALLY GRANTED, OF COURSE IT
CAN NOT BE INVALIDATED, AND IT OUGHT NOT TO BE, BUT NO ONE QUESTIONS
THAT IT IS WITHIN THE POWER OF THE GOVERNMENT TO PROVIDE FOR THE
CANCELLATION OF CERTIFICATES OF CITIZENS THAT HAVE BEEN FRAUDULENTLY
OBTAINED.  A CERTIFICATE TAINTED WITH FRAUD IS IN THE SENSE OF THE LAW
NO CERTIFICATE AT ALL."  40 CONG. REC. P. 7040. 

THE COURT NOTED IN UNITED STATES V. NESS, 245 U.S. 319, 324, THAT
"WIDESPREAD FRAUDS IN NATURALIZATION," INCLUDING "THE PREVALENCE OF
PERJURED TESTIMONY IN CASES OF THIS CHARACTER," LED TO THE PASSAGE OF
THIS LEGISLATION. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

I AM SATISFIED BEYOND ALL REASONABLE DOUBT, FROM THE TESTIMONY AND
ADMISSIONS OF THE PETITIONER HIMSELF, MADE IN OPEN COURT, THAT HE HAD
NEVER AT ANY TIME, EITHER BEFORE OR AFTER HIS NATURALIZATION, DEVIATED
FROM HIS WHOLEHEARTED ALLEGIANCE TO, AND CONSTANT SERVICE OF, THE
GERMAN NAZI GOVERNMENT. 

I REALIZE, AS THE DISSENT IN THIS CASE EMPHASIZES, THE DANGERS
INHERENT IN DENATURALIZATIONS.  HAD THIS JUDGMENT RESTED ON THE
PETITIONER'S MERE PHILOSOPHICAL OR POLITICAL BELIEFS, EXPRESSED OR
UNEXPRESSED, I SHOULD NOT CONCUR IN ITS AFFIRMANCE.  BUT PETITIONER'S
ADMISSIONS AS TO HIS OWN CONDUCT LEAVE ME IN NO DOUBT AT ALL THAT HE
WAS, EVEN IN OBTAINING NATURALIZATION, SERVING THE GERMAN GOVERNMENT
WITH THE SAME FANATICAL ZEAL WHICH MOTIVATED THE SABOTEURS SENT TO THE
UNITED STATES TO WAGE WAR.  I AM UNABLE TO SAY THAT CONGRESS IS WITHOUT
CONSTITUTIONAL POWER TO AUTHORIZE COURTS, AFTER FAIR TRIALS LIKE THIS
ONE, TO CANCEL CITIZENSHIP OBTAINED BY THE METHODS AND FOR THE PURPOSES
SHOWN BY THIS RECORD. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

FOR REASONS I HAVE SUGGESTED ELSEWHERE,  FN1  BUT WHICH NOW ARE
SQUARELY INVOLVED, I CANNOT BRING MYSELF TO CONCUR IN THIS JUDGMENT. 

MY CONCERN IS NOT FOR PAUL KNAUER.  THE RECORD DISCLOSES THAT HE HAS
NO CONCEPTION OF, MUCH LESS ATTACHMENT TO, BASIC AMERICAN PRINCIPLES OR
INSTITUTIONS.  HE WAS A THOROUGH-GOING NAZI, ADDICTED TO PHILOSOPHIES
ALTOGETHER HOSTILE TO THE DEMOCRATIC FRAMEWORK IN WHICH WE BELIEVE AND
LIVE.  FURTHER, HE WAS AN ACTIVE PROMOTER OF MOVEMENTS DIRECTED TO
SECURING ACCEPTANCE OF THOSE IDEAS HERE AND INCORPORATING THEM IN OUR
INSTITUTIONS.  AND IN THIS CASE, BY CONTRAST WITH THOSE OF SCHNEIDERMAN
AND BAUMGARTNER N2, IT WOULD BE HARD TO SAY THAT THE EVIDENCE WOULD NOT
SUSTAIN A FINDING THAT HE FALSELY TOOK THE OATH OF ALLEGIANCE OR THAT
HE NEVER IN HIS HEART RENOUNCED HIS PRIME FEALTY TO ADOLPH HITLER AND
NAZI GERMANY.  NOR, IN MY OPINION, CAN IT BE THOUGHT UNEQUAL TO
SUPPORTING A CONCLUSION THAT, FROM A TIME PRIOR TO HIS ADMISSION TO
CITIZENSHIP IN 1935 UNTIL AT ANY RATE THE ASSAULT ON PEARL HARBOR,
KNAUER WAS IN THE ACTIVE SERVICE OF THE NAZI REGIME, PROMOTING ITS
CAUSE HERE, AND ALSO FOR A SHORT TIME IN GERMANY, AS THE OBJECT OF HIS
FIRST LOYALTY.    IF THEREFORE IN ANY CASE A NATURALIZED CITIZEN'S
RIGHT AND STATUS CAN BE REVOKED, BY THE PROCEDURE FOLLOWED HERE OR
PERHAPS AT ALL, IT WOULD BE IN SUCH A CASE AS THIS.  BUT IF ONE MAN'S
CITIZENSHIP CAN THUS BE TAKEN AWAY, SO CAN THAT OF ANY OTHER.  AND EVEN
IN THIS CASE IT WOULD BE IN LARGE PART FOR HIS POLITICAL CONVICTIONS
AND ACTS DONE OPENLY IN ESPOUSAL OF THEM.  NOT MERELY KNAUER'S RIGHTS,
BUT THOSE OF MILLIONS OF NATURALIZED CITIZENS IN THEIR STATUS AND ALL
THAT IT IMPLIES OF SECURITY AND FREEDOM, ARE AFFECTED BY WHAT IS DONE
IN THIS CASE.  BY THE OUTCOME THEY ARE MADE EITHER SECOND-CLASS
CITIZENS OR CITIZENS HAVING EQUAL RIGHTS AND EQUAL SECURITY WITH
OTHERS. 

NO NATIVE-BORN AMERICAN'S BIRTHRIGHT COULD BE STRIPPED FROM HIM FOR
SUCH A CAUSE OR BY SUCH A PROCEDURE AS HAS BEEN FOLLOWED HERE.  NOR
COULD HE BE PUNISHED WITH BANISHMENT.  TO SUFFER THAT GREAT LOSS HE
MUST FORFEIT CITIZENSHIP BY SOME ACT OF TREASON OR FELONY AND BE
ADJUDGED GUILTY BY PROCESSES OF LAW CONSISTENT WITH ALL THE GREAT
PROTECTIONS THROWN AROUND SUCH TRIALS.  NOT YET HAS ATTEMPT BEEN MADE
TO DO THIS OTHERWISE.  NOR IN MY OPINION COULD IT BE DONE, EXCEPT FOR
SOME SUCH CAUSE OR BY ANY LESS CAREFULLY SAFEGUARDED PROCEDURE. 

IN NO INSTANCE THUS FAR HAS OUR SYSTEM TOLERATED DESTRUCTION OF THAT
RIGHT OF THE NATIVE-BORN, EXCEPT BY VOLUNTARY SURRENDER, ON ACCOUNT OF
CONVICTIONS HELD, VIEWS EXPRESSED, OR ACTS DONE IN PROMOTING THEIR
ACCEPTANCE FALLING SHORT OF TREASON AS DEFINED IN THE CONSTITUTION  FN3
OR CONVICTION FOR FELONY.  NOR HAS IT THUS FAR BROUGHT ABOUT THAT
EXTINCTION BY FORMS OF TRIAL OTHER THAN THOSE PROVIDED FOR SUCH
OFFENSES.  MOREOVER, EVEN IN SUCH CASES, ALTHOUGH THE PENALTY MAY BE
DEATH OR LOSS OF THE RIGHTS OF CITIZENSHIP, WE HAVE NOT YET IMPOSED
THOSE PENALTIES ALTOGETHER FOREIGN TO OUR INSTITUTIONS, NAMELY,
DEPORTATION AND EXILE.  FOR ONE CAUSE AND ONE ONLY HAVE THEY BEEN
PROVIDED, NAMELY, THE LOSS OF THE NATURALIZED CITIZEN'S STATUS. 

I DO NOT FIND WARRANT IN THE CONSTITUTION FOR BELIEVING THAT IT
CONTEMPLATES TWO CLASSES OF CITIZENS, EXCEPTING ONLY FOR TWO PURPOSES. 
ONE IS TO PROVIDE HOW CITIZENSHIP SHALL BE ACQUIRED, CONST., ART. I,
SEC. 8; AMEND. XIV, SEC. 1, THE OTHER TO DETERMINE ELIGIBILITY FOR THE
PRESIDENCY.  CONST., ART. II, SEC. 1.  THE LATTER IS THE ONLY INSTANCE
IN WHICH THE CHARTER EXPRESSLY EXCLUDES THE NATURALIZED CITIZEN FROM
ANY RIGHT OR PRIVILEGE THE NATIVE-BORN POSSESSES.  FN4  LURIA V. UNITED
STATES, 231 U.S. 9, 22.  I DO NOT THINK THERE IS ANY OTHER IN WHICH HIS
STATUS IS, OR CAN BE MADE, INFERIOR. 

CONGRESS, IT IS TRUE, IS EMPOWERED TO LAY DOWN THE CONDITIONS FOR
ADMISSION OF FOREIGN-BORN PERSONS TO CITIZENSHIP.  IN THIS RESPECT IT
HAS WIDE AUTHORITY.  BUT IT IS NOT UNLIMITED.  NOR IS CONGRESS GIVEN
POWER TO TAKE AWAY CITIZENSHIP ONCE IT IS CONFERRED, OTHER THAN FOR
SOME SUFFICIENT ACT OF FORFEITURE TAKING PLACE AFTERWARD.  NATURALIZED
CITIZENS ARE NO MORE FREE TO BECOME TRAITORS OR CRIMINALS THAN OTHERS
AND MAY BE PUNISHED AS THEY ARE WHEN THEY COMMIT THE SAME OFFENSE.  BUT
ANY PROCESS WHICH TAKES AWAY THEIR CITIZENSHIP FOR CAUSES OR BY
PROCEDURES NOT APPLICABLE TO NATIVE-BORN CITIZENS PLACES THEM IN A
SEPARATE AND AN INFERIOR CLASS.  THAT DILEMMA IS INESCAPABLE, THOUGH IT
IS ONE NOT HERETOFORE FACED SQUARELY.  UNLESS IT IS THE LAW THAT THERE
ARE TWO CLASSES OF CITIZENS, ONE SUPERIOR, THE OTHER INFERIOR, THE
STATUS OF NO CITIZEN CAN BE ANNULLED FOR CAUSES OR BY PROCEDURES NOT
APPLICABLE TO ALL OTHERS. 

TO SAY THAT CONGRESS CAN DISREGARD THIS FACT AND CREATE INEQUALITIES
OF STATUS AS BETWEEN NATIVE AND FOREIGN-BORN CITIZENS BY ATTACHING
CONDITIONS TO THEIR ADMISSION, TO BE APPLIED RETROACTIVELY AFTER THAT
EVENT, IS ONLY TO SAY IN OTHER WORDS THAT CONGRESS BY USING THAT METHOD
CAN CREATE DIFFERENT, AND INFERIOR, CLASSES OF CITIZENS.  WE HAVE
HERETOFORE POINTED OUT WHY CITIZENS WITH STRINGS ATTACHED TO THEIR
CITIZENSHIP, FOR ITS REVOCATION, CAN BE NEITHER FREE NOR SECURE IN
THEIR STATUS.  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, AND
CONCURRING OPINION AT 165.  ALL THAT IS SAID THERE, IN THAT RESPECT,
APPLIES HERE OR TO ANY PROCEDURE BY WHICH CITIZENSHIP MAY BE ANNULLED. 
IN MY OPINION THE POWER TO NATURALIZE IS NOT THE POWER TO
DENATURALIZE.  THE ACT OF ADMISSION MUST BE TAKEN AS FINAL, FOR ANY
CAUSE WHICH MAY HAVE EXISTED AT THAT TIME.  OTHERWISE THERE CANNOT BUT
BE TWO CLASSES OF CITIZENS, ONE FREE AND SECURE EXCEPT FOR ACTS
AMOUNTING TO FORFEITURE WITHIN OUR TRADITION; THE OTHER, CONDITIONAL,
TIMOROUS AND INSECURE BECAUSE BLANKETED WITH THE THREAT THAT SOME ACT
OR CONDUCT, NOT AMOUNTING TO FORFEITURE FOR OTHERS, WILL BE TAKEN
RETROACTIVELY TO SHOW THAT SOME PRESCRIBED CONDITION HAD NOT BEEN
FULFILLED AND BE SO ADJUDGED.  I DO NOT THINK SUCH A DIFFERENCE WAS
CONTEMPLATED WHEN CONGRESS WAS AUTHORIZED TO PROVIDE FOR NATURALIZATION
AND THE TERMS ON WHICH IT SHOULD BE GRANTED. 

BUT IF I MAY BE WRONG IN THIS, CERTAINLY SO DRASTIC A PENALTY AS
DENATURALIZATION, WITH RESULTING DEPORTATION AND EXILE AND ALL THE
ATTENDANT CONSEQUENCES, SHOULD NOT BE IMPOSED BY ANY PROCEDURE LESS
PROTECTIVE OF THE CITIZEN'S MOST FUNDAMENTAL RIGHT, COMPREHENDING ALL
OTHERS, THAN MUST BE EMPLOYED TO TAKE AWAY THE NATIVE-BORN CITIZEN'S
STATUS OR THE LESSER RIGHTS OF THE FOREIGN-BORN CITIZEN.  IF STRINGS
MAY BE ATTACHED TO CITIZENSHIP AND PULLED RETROACTIVELY TO ANNUL IT, AT
THE LEAST THIS SHOULD BE DONE ONLY BY THOSE FORMS OF PROCEEDING MOST
FULLY SURROUNDED WITH THE CONSTITUTIONAL SECURITIES FOR TRIAL WHICH ARE
AMONG THE PRIZED INCIDENTS OF CITIZENSHIP.  IT IS ALTOGETHER ANOMALOUS
THAT THOSE SAFEGUARDS ARE THROWN ABOUT THE FOREIGN-BORN CITIZEN WHEN,
FOR SOME OFFENSE, HIS LIBERTY EVEN FOR BRIEF PERIODS IS AT STAKE, BUT
ARE WITHDRAWN FROM HIM WHEN ALL THAT GIVES SUBSTANCE TO THAT FREEDOM IS
PUT IN JEOPARDY. 

THE RIGHT OF CITIZENSHIP IS THE MOST PRECIOUS OF ALL.  THE PENALTY OF
DENATURALIZATION IS ALWAYS HARSH.  OFTEN IT IS MORE DRASTIC THAN ANY
OTHER.  IT IS ALSO UNIQUE FOR THIS SITUATION.  FOR THE REQUIRED MEASURE
OF SECURITY, THE NATIVE-BORN CITIZEN CAN BE DEPRIVED OF HIS STATUS ONLY
BY THE RIGIDLY SAFEGUARDED TRIAL FOR TREASON OR FOR CONVICTION OF A
CRIMINAL OFFENSE WHICH BRINGS LOSS OF RIGHTS AS A CITIZEN.  TO THOSE
PROCEDURES, WITH THE SAME PENALTIES AND FOR THE SAME CAUSES, THE
FOREIGN-BORN CITIZEN IS SUBJECT; BUT ALSO BY THEM HE IS PROTECTED.  HE
SHOULD NOT BE LESS SECURE WHEN IT IS SOUGHT TO ANNUL HIS CITIZENSHIP
THAN WHEN THE EFFORT IS TO BRING ABOUT ITS FORFEITURE.  NOR, IN EITHER
EVENT, SHOULD HIS PROCEDURAL SAFEGUARDS BE LESS THAN WHEN THE SAME
CONSEQUENCE, IN SUBSTANCE, IS INFLICTED UPON THE CITIZEN NATIVE BORN. 

THE PROCEDURE PRESCRIBED FOR AND FOLLOWED IN THIS CASE WAS NOT IN
ACCORD WITH THOSE STANDARDS.  I THINK NOTHING LESS IS ADEQUATE, OR
CONSISTENT WITH THE CONSTITUTIONAL STATUS OF CITIZENSHIP, FOR THE
PURPOSE OF TAKING IT AWAY. 

IF THIS MEANS THAT SOME OR EVEN MANY DISLOYAL FOREIGNBORN CITIZENS
CANNOT BE DEPORTED, IT IS BETTER SO THAN TO PLACE SO MANY LOYAL ONES IN
INFERIOR STATUS.  AND THERE ARE OTHER EFFECTIVE METHODS FOR DEALING
WITH THOSE WHO ARE DISLOYAL, JUST AS THERE ARE FOR SUCH CITIZENS BY
BIRTH. 

ACCORDINGLY, I WOULD REVERSE THE JUDGMENT. 

FN1  SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, CONCURRING OPINION
AT 165. 

FN2  SEE NOTE 1; BAUMGARTNER V. UNITED STATES, 322 U.S. 665. 

FN3  CONSTITUTION, ART. III, SEC. 3.  SEE CRAMER V. UNITED STATES,
325 U.S. 1. 

FN4  CF. CONSTITUTION, ART. I, SEC. 3; ART. I, SEC. 2, PROVIDING
RESPECTIVELY THAT NO PERSON SHALL BE A SENATOR WHO SHALL NOT HAVE BEEN
NINE YEARS A CITIZEN AND, IN THE CASE OF REPRESENTATIVES, SEVEN YEARS. 

MR. JUSTICE MURPHY JOINS IN THIS DISSENT. 
..END :




















ANDERSON V. MT. CLEMENS POTTERY CO., 328 U.S. 680 


NO. 342.  ARGUED JANUARY 29, 1946.  - DECIDED JUNE 10, 1946.  - 149 F.2D
461, REVERSED. 


RESPONDENT PRODUCES POTTERY FOR INTERSTATE COMMERCE.  ITS EMPLOYEES
ENTER THE PLANT AND PUNCH TIME CLOCKS DURING A PERIOD OF 14 MINUTES
BEFORE THE REGULAR STARTING TIME FOR PRODUCTIVE WORK.  THEY WALK FROM
THE TIME CLOCKS TO THEIR PLACES OF WORK WITHIN THE PLANT AND MAKE
VARIOUS PREPARATIONS FOR THE START OF PRODUCTIVE WORK.  AFTER THE
REGULAR QUITTING TIME, THEY WERE ALLOWED A 14-MINUTE PERIOD TO PUNCH
OUT AND LEAVE THE PLANT.  THEY WERE COMPENSATED FOR THEIR TIME FROM THE
NEXT EVEN QUARTER HOUR AFTER PUNCHING IN UNTIL THE NEXT EVEN QUARTER
HOUR PRIOR TO PUNCHING OUT.  SIMILAR PROVISION WAS MADE FOR PUNCHING
OUT AND IN BEFORE AND AFTER THE LUNCH HOUR.  THUS AN EMPLOYEE MIGHT BE
CREDITED WITH AS MUCH AS 56 MINUTES PER DAY LESS THAN THE TIME RECORDED
BY THE TIME CLOCKS.  EMPLOYEES BROUGHT SUIT UNDER SEC. 16(B) OF THE
FAIR LABOR STANDARDS ACT TO RECOVER AMOUNTS ALLEGEDLY OWING TO THEM
UNDER THE OVERTIME PROVISIONS OF SEC. 7(A) OF THE ACT.  HELD: 

1.  AN EMPLOYEE WHO BRINGS SUIT UNDER SEC. 16(B) FOR UNPAID MINIMUM
WAGES OR OVERTIME COMPENSATION, TOGETHER WITH LIQUIDATED DAMAGES, HAS
THE BURDEN OF PROVING THAT HE PERFORMED WORK FOR WHICH HE WAS NOT
PROPERLY COMPENSATED.  P. 686. 

2.  THIS BURDEN IS MET BY PROOF THAT HE HAS IN FACT PERFORMED WORK
FOR WHICH HE WAS NOT PROPERLY COMPENSATED AND BY SUFFICIENT EVIDENCE TO
SHOW THE AMOUNT AND EXTENT OF THAT WORK AS A MATTER OF JUST AND
REASONABLE INFERENCE.  P. 687. 

3.  THE BURDEN THEN SHIFTS TO THE EMPLOYER TO COME FORWARD WITH
EVIDENCE OF THE PRECISE AMOUNT OF WORK PERFORMED OR WITH EVIDENCE TO
NEGATIVE THE REASONABLENESS OF THE INFERENCE TO BE DRAWN FROM THE
EMPLOYEE'S EVIDENCE.  P. 687. 

4.  IF THE EMPLOYER FAILS TO PRODUCE SUCH EVIDENCE, THE COURT MAY
THEN AWARD DAMAGES TO THE EMPLOYEE, EVEN THOUGH THE RESULT BE ONLY
APPROXIMATE.  PP. 688, 693. 

5.  AN EMPLOYER WHO HAS NOT KEPT THE RECORDS REQUIRED BY SEC. 11(C)
CANNOT BE HEARD TO COMPLAIN THAT DAMAGES ASSESSED AGAINST HIM LACK THE
PRECISION OF MEASUREMENT THAT WOULD BE POSSIBLE HAD HE KEPT SUCH
RECORDS.  P. 688. 

6.  THE FINDINGS OF A SPECIAL MASTER ON THE PURELY FACTUAL ISSUE OF
THE AMOUNT OF ACTUAL PRODUCTIVE WORK PERFORMED, BEING SUPPORTED BY
SUBSTANTIAL EVIDENCE AND NOT CLEARLY ERRONEOUS, SHOULD HAVE BEEN
ACCEPTED BY THE DISTRICT COURT; AND IT ERRED IN REJECTING THESE
FINDINGS AND CREATING A FORMULA OF COMPENSATION BASED ON A CONTRARY
VIEW.  RULE 53(E)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  P. 689. 

7.  SINCE THERE WAS NO REQUIREMENT THAT AN EMPLOYEE CHECK IN OR BE ON
THE PREMISES AT ANY PARTICULAR TIME DURING THE 14-MINUTE INTERVAL, THE
TIME CLOCK RECORDS COULD NOT FORM THE SOLE BASIS OF DETERMINING THE
STATUTORY WORKWEEK.  PP. 689-690. 

8.  TIME NECESSARILY SPENT BY THE EMPLOYEES IN WALKING TO WORK ON THE
EMPLOYER'S PREMISES IS WORKING TIME WITHIN THE SCOPE OF SEC. 7(A), AND
MUST BE COMPENSATED ACCORDINGLY, REGARDLESS OF CONTRARY CUSTOM OR
CONTRACT.  HOWEVER, APPLICATION OF THE DE MINIMIS RULE IS NOT PRECLUDED
WHERE THE MINIMUM WALKING TIME IS SUCH AS TO BE NEGLIGIBLE.  PP. 691
692. 

9.  TIME NECESSARILY SPENT BY EMPLOYEES IN PRELIMINARY ACTIVITIES
AFTER ARRIVING AT THEIR PLACES OF WORK - SUCH AS PUTTING ON APRONS AND
OVERALLS, REMOVING SHIRTS, TAPING OR GREASING ARMS, PUTTING ON FINGER
COTS, PREPARING THE EQUIPMENT FOR PRODUCTIVE WORK, TURNING ON SWITCHES
FOR LIGHTS AND MACHINERY, OPENING WINDOWS, AND ASSEMBLING AND
SHARPENING TOOLS - MUST BE INCLUDED WITHIN THE WORKWEEK AND COMPENSATED
ACCORDINGLY.  HOWEVER, APPLICATION OF THE DE MINIMIS RULE TO
INSUBSTANTIAL AND INSIGNIFICANT PERIODS OF TIME SPENT IN SUCH
ACTIVITIES IS NOT PRECLUDED.  PP. 692-693. 

10.  UNLESS THE EMPLOYER CAN PROVIDE ACCURATE ESTIMATES AS TO THE
AMOUNT OF TIME SPENT IN SUCH ACTIVITIES IN EXCESS OF THE PRODUCTIVE
WORKING TIME, IT IS THE DUTY OF THE TRIER OF FACTS TO DRAW WHATEVER
REASONABLE INFERENCES CAN BE DRAWN FROM THE EMPLOYEES' EVIDENCE.  P.
693. 

11.  AS TO WAITING TIME BEFORE AND AFTER THE SHIFT PERIODS, THE
FINDINGS OF THE SPECIAL MASTER, THAT THE EMPLOYEES HAD NOT PROVED THAT
THEY WERE IN FACT FORCED TO WAIT OR THAT THEY WERE NOT FREE TO SPEND
SUCH TIME ON THEIR OWN BEHALF, WERE SUPPORTED BY SUBSTANTIAL EVIDENCE
AND MUST BE SUSTAINED.  P. 694. 

ANDERSON ET AL. V. MT. CLEMENS POTTERY CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

EMPLOYEES BROUGHT SUIT IN THE DISTRICT COURT AGAINST THEIR EMPLOYER
TO RECOVER SUMS CLAIMED TO BE DUE THEM UNDER THE FAIR LABOR STANDARDS
ACT.  THE DISTRICT COURT GAVE JUDGMENT IN FAVOR OF THE EMPLOYEES.  60
F.SUPP.  146.  THE CIRCUIT COURT OF APPEALS REVERSED AND ORDERED THE
SUIT DISMISSED.  149 F.2D 461.  THIS COURT GRANTED CERTIORARI.  326
U.S. 706.  REVERSED AND REMANDED, P. 694. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

SEVERAL IMPORTANT ISSUES ARE RAISED BY THIS CASE CONCERNING THE
PROPER DETERMINATION OF WORKING TIME FOR PURPOSES OF THE FAIR LABOR
STANDARDS ACT OF 1938, 52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. 

THE MT. CLEMENS POTTERY COMPANY, THE RESPONDENT, EMPLOYS
APPROXIMATELY 1,200 PERSONS AT ITS POTTERY PLANT AT MT. CLEMENS,
MICHIGAN; ABOUT 95% OF THEM ARE COMPENSATED UPON A PIECE WORK BASIS. 
THE PLANT COVERS MORE THAN EIGHT ACRES OF GROUND AND IS ABOUT A QUARTER
OF A MILE IN LENGTH.  THE EMPLOYEES' ENTRANCE IS AT THE NORTHEAST
CORNER.  IMMEDIATELY ADJACENT TO THAT ENTRANCE ARE CLOAK AND REST ROOMS
WHERE EMPLOYEES MAY CHANGE TO THEIR WORKING CLOTHES AND PLACE THEIR
STREET CLOTHES IN LOCKERS.  DIFFERENT SHIFTS BEGIN AT DIFFERENT TIMES
DURING THE DAY, WITH WHISTLES FREQUENTLY INDICATING THE STARTING TIME
FOR PRODUCTIVE WORK.  THE WHISTLES WHICH BLOW AT 6:55 AND 7:00 A.M.,
HOWEVER, ARE THE MOST COMMONLY USED.  AN INTERVAL OF 14 MINUTES PRIOR
TO THE SCHEDULED STARTING TIME FOR EACH SHIFT PERMITS THE EMPLOYEES TO
PUNCH TIME CLOCKS, WALK TO THEIR RESPECTIVE PLACES OF WORK AND PREPARE
FOR THE START OF PRODUCTIVE WORK.  APPROXIMATELY 200 EMPLOYEES USE EACH
TIME CLOCK DURING EACH 14-MINUTE PERIOD AND AN AVERAGE OF 25 EMPLOYEES
CAN PUNCH THE CLOCK PER MINUTE.  THUS A MINIMUM OF 8 MINUTES IS
NECESSARY FOR THE EMPLOYEES TO GET BY THE TIME CLOCK.  THE EMPLOYEES
THEN WALK TO THEIR WORKING PLACES ALONG CLEAN, PAINTED FLOORS OF THE
BRIGHTLY ILLUMINATED AND WELL VENTILATED BUILDING.  THEY ARE FREE TO
TAKE WHATEVER COURSE THROUGH THE PLANT THEY DESIRE AND MAY STOP OFF AT
ANY PORTION OF THE JOURNEY TO CONVERSE WITH OTHER EMPLOYEES AND TO DO
WHATEVER ELSE THEY MAY DESIRE.  THE MINIMUM DISTANCES BETWEEN TIME
CLOCKS AND WORKING PLACES, HOWEVER, VARY FROM 130 FEET TO 890 FEET, THE
ESTIMATED WALKING TIME RANGING FROM 30 SECONDS TO 3 MINUTES.  SOME OF
THE ESTIMATES AS TO WALKING TIME, HOWEVER, GO AS HIGH AS 6 TO 8
MINUTES.  UPON ARRIVING AT THEIR PLACES OF WORK, THE EMPLOYEES PERFORM
VARIOUS PRELIMINARY DUTIES, SUCH AS PUTTING ON APRONS AND OVERALLS,
REMOVING SHIRTS, TAPING OR GREASING THEIR ARMS, PUTTING ON FINGER COTS,
PREPARING THE EQUIPMENT FOR PRODUCTIVE WORK, TURNING ON SWITCHES FOR
LIGHTS AND MACHINERY, OPENING WINDOWS AND ASSEMBLING AND SHARPENING
TOOLS.  SUCH ACTIVITIES, IT IS CLAIMED, CONSUME 3 OR 4 MINUTES AT THE
MOST.  THE EMPLOYEES ARE ALSO ALLOWED A 14-MINUTE PERIOD AT THE
COMPLETION OF THE ESTABLISHED WORKING PERIODS TO LEAVE THE PLANT AND
PUNCH OUT AT THE TIME CLOCKS. 

WORKING TIME IS CALCULATED BY RESPONDENT ON THE BASIS OF THE TIME
CARDS PUNCHED BY THE CLOCKS.  COMPENSABLE WORKING TIME EXTENDS FROM THE
SUCCEEDING EVEN QUARTER HOUR AFTER EMPLOYEES PUNCH IN TO THE QUARTER
HOUR IMMEDIATELY PRECEDING THE TIME WHEN THEY PUNCH OUT.  THUS AN
EMPLOYEE WHO PUNCHES IN AT 6:46 A.M., PUNCHES OUT AT 12:14 P.M.,
PUNCHES IN AGAIN AT 12:46 P.M. AND FINALLY PUNCHES OUT AT 4:14 P.M. IS
CREDITED WITH HAVING WORKED THE 8 HOURS BETWEEN 7 A.M. AND 12 NOON AND
BETWEEN 1 P.M. AND 4 P.M. - A TOTAL OF 56 MINUTES LESS THAN THE TIME
RECORDED BY THE TIME CLOCKS. 

SEVEN EMPLOYEES AND THEIR LOCAL UNION, ON BEHALF OF THEMSELVES AND
OTHERS SIMILARLY SITUATED, BROUGHT THIS SUIT UNDER SEC. 16(B) OF THE
FAIR LABOR STANDARDS ACT, ALLEGING THAT THE FOREGOING METHOD OF
COMPUTATION DID NOT ACCURATELY REFLECT ALL THE TIME ACTUALLY WORKED AND
THAT THEY WERE THEREBY DEPRIVED OF THE PROPER OVERTIME COMPENSATION
GUARANTEED THEM BY SEC. 7(A) OF THE ACT.  THEY CLAIMED INTER ALIA THAT
ALL EMPLOYEES WORKED APPROXIMATELY 56 MINUTES MORE PER DAY THAN
CREDITED BY RESPONDENT AND THAT, IN ANY EVENT, ALL THE TIME BETWEEN THE
HOURS PUNCHED ON THE TIME CARDS CONSTITUTED COMPENSABLE WORKING TIME. 

THE DISTRICT COURT REFERRED THE CASE TO A SPECIAL MASTER.  AFTER
HEARING TESTIMONY AND MAKING FINDINGS, THE MASTER RECOMMENDED THAT THE
CASE BE DISMISSED SINCE THE COMPLAINING EMPLOYEES "HAVE NOT ESTABLISHED
BY A FAIR PREPONDERANCE OF EVIDENCE" A VIOLATION OF THE ACT BY
RESPONDENT.  HE FOUND THAT THE EMPLOYEES WERE NOT REQUIRED TO, AND DID
NOT, WORK APPROXIMATELY 56 MINUTES MORE PER DAY THAN CREDITED TO THEM. 
HE FURTHER FOUND THAT THE EMPLOYEES "HAVE NOT SUSTAINED THEIR BURDEN TO
PROVE THAT ALL THE TIME BETWEEN THE PUNCHED ENTRIES ON THE CLOCK WAS
SPENT IN WORKING AND THAT CONVERSELY NONE OF THE TIME IN ADVANCE OF THE
STARTING TIME SPENT BY EMPLOYEES ARRIVING EARLY WAS THEIR OWN TIME." 
PRODUCTION WORK, HE CONCLUDED, "DID NOT REGULARLY COMMENCE UNTIL THE
ESTABLISHED STARTING TIME; AND, IF IN SOME INSTANCES IT WAS COMMENCED
SHORTLY PRIOR THERETO, IT WAS COUNTERBALANCED BY OCCASIONS WHEN IT WAS
STARTED AFTER THE HOUR AND BY ADMITTED OCCASIONS WHEN IT WAS STOPPED
SEVERAL MINUTES BEFORE QUITTING TIME." 

AS TO THE TIME BETWEEN THE PUNCHING OF THE CLOCKS AND THE START OF
THE PRODUCTIVE WORK, THE MASTER MADE THE FOLLOWING DETERMINATIONS: 

(1)  THE TIME SPENT IN WALKING FROM THE TIME CLOCKS TO THE PLACES OF
WORK WAS NOT COMPENSABLE WORKING TIME IN VIEW OF THE ESTABLISHED CUSTOM
IN THE INDUSTRY AND IN RESPONDENT'S PLANT TO THAT EFFECT. 

(2)  THE TIME CONSUMED IN PRELIMINARY DUTIES AFTER ARRIVING AT THE
PLACES OF WORK WAS NOT COMPENSABLE HERE SINCE THE EMPLOYEES HAD
PRODUCED NO RELIABLE EVIDENCE FROM WHICH THE AMOUNT OF SUCH WORK COULD
BE DETERMINED WITH REASONABLE DEFINITENESS. 

(3)  THE TIME SPENT IN WAITING BEFORE AND AFTER THE SHIFT PERIODS WAS
NOT COMPENSABLE SINCE THE EMPLOYEES FAILED TO PROVE THAT IF THEY CAME
IN EARLY ENOUGH TO HAVE WAITING TIME THEY WERE REQUIRED TO DO SO OR
WERE NOT FREE TO SPEND SUCH TIME ON THEIR OWN BEHALF. 

THE DISTRICT COURT AGREED "IN THE MAIN" WITH THE MASTER'S FINDINGS
AND CONCLUSIONS WITH ONE EXCEPTION.  IT FELT THAT THE EVIDENCE
DEMONSTRATED THAT PRACTICALLY ALL OF THE EMPLOYEES HAD PUNCHED IN,
WALKED TO THEIR PLACES OF WORK AND WERE READY FOR PRODUCTIVE WORK AT
FROM 5 TO 7 MINUTES BEFORE THE SCHEDULED STARTING TIME, "AND IT DOES
NOT SEEM PROBABLE THAT WITH COMPENSATION SET BY PIECE WORK, AND THE
CREW READY, THAT THESE EMPLOYEES DIDN'T START TO WORK IMMEDIATELY." 
THE COURT ACCORDINGLY ESTABLISHED A FORMULA, APPLICABLE TO ALL
EMPLOYEES, FOR COMPUTING THIS ADDITIONAL TIME SPENT IN PRODUCTIVE
WORK.  UNDER THE FORMULA, 5 MINUTES WERE ALLOWED FOR PUNCHING THE CLOCK
AND 2 MINUTES FOR WALKING FROM THE CLOCK TO THE PLACE OF WORK - A TOTAL
OF 7 MINUTES WHICH WERE NOT TO BE CONSIDERED AS WORKING TIME.  ALL
MINUTES OVER THOSE 7 AS SHOWN BY THE TIME CARDS IN THE MORNING AND ALL
OVER 5 AT THE BEGINNING OF THE AFTERNOON WERE TO BE COMPUTED AS PART OF
THE HOURS WORKED.  THE COURT FOUND NO EVIDENCE OF PRODUCTIVE WORK AFTER
THE SCHEDULED QUITTING TIME AT NOON OR NIGHT.  IN OTHER WORDS, WORKING
TIME UNDER THIS FORMULA EXTENDED FROM THE TIME PUNCHED IN THE MORNING,
LESS 7 MINUTES, TO THE SCHEDULED QUITTING TIME AT NOON AND FROM THE
TIME PUNCHED AT THE BEGINNING OF THE AFTERNOON, LESS 5 MINUTES, TO THE
SCHEDULED QUITTING TIME FOR THE DAY.  NO REASON WAS GIVEN FOR THE 2
MINUTE DIFFERENTIAL BETWEEN THE MORNING AND AFTERNOON PUNCH-INS.  THE
USE OF THIS FORMULA LED THE DISTRICT COURT TO ENTER A JUDGMENT AGAINST
RESPONDENT IN THE AMOUNT OF $2,415.74 PLUS COSTS.  60 F.SUPP.  146. 

ONLY THE RESPONDENT APPEALED.  THE SIXTH CIRCUIT COURT OF APPEALS
MADE A CAREFUL EXAMINATION OF THE MASTER'S FINDINGS AND CONCLUSIONS,
HOLDING THAT THEY WERE ALL SUPPORTED BY SUBSTANTIAL EVIDENCE AND WERE
NOT CLEARLY ERRONEOUS.  IT STATED THAT THE DISTRICT COURT ERRED IN
FAILING TO ACCEPT THE FINDING OF THE MASTER THAT PRODUCTIVE WORK DID
NOT ACTUALLY START UNTIL THE SCHEDULED TIME AND THAT THE FORMULA
DEVISED FOR COMPUTING ADDITIONAL PRODUCTIVE WORK WAS UNSUSTAINABLE
BECAUSE BASED UPON SURMISE AND CONJECTURE.  THE CIRCUIT COURT OF
APPEALS FURTHER HELD THAT THE BURDEN RESTED UPON THE EMPLOYEES TO PROVE
BY A PREPONDERANCE OF THE EVIDENCE THAT THEY DID NOT RECEIVE THE WAGES
TO WHICH THEY WERE WERE ENTITLED UNDER THE ACT AND TO SHOW BY EVIDENCE
RATHER THAN CONJECTURE THE EXTENT OF OVERTIME WORKED, IT BEING
INSUFFICIENT FOR THEM MERELY TO OFFER AN ESTIMATED AVERAGE OF OVERTIME
WORKED.  THE CAUSE OF ACTION ACCORDINGLY WAS ORDERED TO BE DISMISSED. 
149 F.2D 461. 

BUT WE BELIEVE THAT THE CIRCUIT COURT OF APPEALS, AS WELL AS THE
MASTER, IMPOSED UPON THE EMPLOYEES AN IMPROPER STANDARD OF PROOF, A
STANDARD THAT HAS THE PRACTICAL EFFECT OF IMPAIRING MANY OF THE
BENEFITS OF THE FAIR LABOR STANDARDS ACT.  AN EMPLOYEE WHO BRINGS SUIT
UNDER SEC. 16(B) OF THE ACT FOR UNPAID MINIMUM WAGES OR UNPAID OVERTIME
COMPENSATION, TOGETHER WITH LIQUIDATED DAMAGES, HAS THE BURDEN OF
PROVING THAT HE PERFORMED WORK FOR WHICH HE WAS NOT PROPERLY
COMPENSATED.  THE REMEDIAL NATURE OF THIS STATUTE AND THE GREAT PUBLIC
POLICY WHICH IT EMBODIES, HOWEVER, MILITATE AGAINST MAKING THAT BURDEN
AN IMPOSSIBLE HURDLE FOR THE EMPLOYEE.  DUE REGARD MUST BE GIVEN TO THE
FACT THAT IT IS THE EMPLOYER WHO HAS THE DUTY UNDER SEC. 11(C) OF THE
ACT TO KEEP PROPER RECORDS OF WAGES, HOURS AND OTHER CONDITIONS AND
PRACTICES OF EMPLOYMENT AND WHO IS IN POSITION TO KNOW AND TO PRODUCE
THE MOST PROBATIVE FACTS CONCERNING THE NATURE AND AMOUNT OF WORK
PERFORMED.  EMPLOYEES SELDOM KEEP SUCH RECORDS THEMSELVES; EVEN IF THEY
DO, THE RECORDS MAY BE AND FREQUENTLY ARE UNTRUSTWORTHY.  IT IS IN THIS
SETTING THAT A PROPER AND FAIR STANDARD MUST BE ERECTED FOR THE
EMPLOYEE TO MEET IN CARRYING OUT HIS BURDEN OF PROOF. 

WHEN THE EMPLOYER HAS KEPT PROPER AND ACCURATE RECORDS, THE EMPLOYEE
MAY EASILY DISCHARGE HIS BURDEN BY SECURING THE PRODUCTION OF THOSE
RECORDS.  BUT WHERE THE EMPLOYER'S RECORDS ARE INACCURATE OR INADEQUATE
AND THE EMPLOYEE CANNOT OFFER CONVINCING SUBSTITUTES, A MORE DIFFICULT
PROBLEM ARISES.  THE SOLUTION, HOWEVER, IS NOT TO PENALIZE THE EMPLOYEE
BY DENYING HIM ANY RECOVERY ON THE GROUND THAT HE IS UNABLE TO PROVE
THE PRECISE EXTENT OF UNCOMPENSATED WORK.  SUCH A RESULT WOULD PLACE A
PREMIUM ON AN EMPLOYER'S FAILURE TO KEEP PROPER RECORDS IN CONFORMITY
WITH HIS STATUTORY DUTY; IT WOULD ALLOW THE EMPLOYER TO KEEP THE
BENEFITS OF AN EMPLOYEE'S LABORS WITHOUT PAYING DUE COMPENSATION AS
CONTEMPLATED BY THE FAIR LABOR STANDARDS ACT.  IN SUCH A SITUATION WE
HOLD THAT AN EMPLOYEE HAS CARRIED OUT HIS BURDEN IF HE PROVES THAT HE
HAS IN FACT PERFORMED WORK FOR WHICH HE WAS IMPROPERLY COMPENSATED AND
IF HE PRODUCES SUFFICIENT EVIDENCE TO SHOW THE AMOUNT AND EXTENT OF
THAT WORK AS A MATTER OF JUST AND REASONABLE INFERENCE.  THE BURDEN
THEN SHIFTS TO THE EMPLOYER TO COME FORWARD WITH EVIDENCE OF THE
PRECISE AMOUNT OF WORK PERFORMED OR WITH EVIDENCE TO NEGATIVE THE
REASONABLENESS OF THE INFERENCE TO BE DRAWN FROM THE EMPLOYEE'S
EVIDENCE.  IF THE EMPLOYER FAILS TO PRODUCE SUCH EVIDENCE, THE COURT
MAY THEN AWARD DAMAGES TO THE EMPLOYEE, EVEN THOUGH THE RESULT BE ONLY
APPROXIMATE.  SEE NOTE, 43 COL. L. REV. 355. 

THE EMPLOYER CANNOT BE HEARD TO COMPLAIN THAT THE DAMAGES LACK THE
EXACTNESS AND PRECISION OF MEASUREMENT THAT WOULD BE POSSIBLE HAD HE
KEPT RECORDS IN ACCORDANCE WITH THE REQUIREMENTS OF SEC. 11(C) OF THE
ACT.  AND EVEN WHERE THE LACK OF ACCURATE RECORDS GROWS OUT OF A BONA
FIDE MISTAKE AS TO WHETHER CERTAIN ACTIVITIES OR NON-ACTIVITIES
CONSTITUTE WORK, THE EMPLOYER, HAVING RECEIVED THE BENEFITS OF SUCH
WORK, CANNOT OBJECT TO THE PAYMENT FOR THE WORK ON THE MOST ACCURATE
BASIS POSSIBLE UNDER THE CIRCUMSTANCES.  NOR IS SUCH A RESULT TO BE
CONDEMNED BY THE RULE THAT PRECLUDES THE RECOVERY OF UNCERTAIN AND
SPECULATIVE DAMAGES.  THAT RULE APPLIES ONLY TO SITUATIONS WHERE THE
FACT OF DAMAGE IS ITSELF UNCERTAIN.  BUT HERE WE ARE ASSUMING THAT THE
EMPLOYEE HAS PROVED THAT HE HAS PERFORMED WORK AND HAS NOT BEEN PAID IN
ACCORDANCE WITH THE STATUTE.  THE DAMAGE IS THEREFORE CERTAIN.  THE
UNCERTAINTY LIES ONLY IN THE AMOUNT OF DAMAGES ARISING FROM THE
STATUTORY VIOLATION BY THE EMPLOYER.  IN SUCH A CASE "IT WOULD BE A
PERVERSION OF FUNDAMENTAL PRINCIPLES OF JUSTICE TO DENY ALL RELIEF TO
THE INJURED PERSON, AND THEREBY RELIEVE THE WRONGDOER FROM MAKING ANY
AMEND FOR HIS ACTS."  STORY PARCHMENT CO. V. PATERSON CO., 282 U.S.
555, 563.  IT IS ENOUGH UNDER THESE CIRCUMSTANCES IF THERE IS A BASIS
FOR A REASONABLE INFERENCE AS TO THE EXTENT OF THE DAMAGES.  EASTMAN
KODAK CO. V. SOUTHERN PHOTO CO., 273 U.S. 359, 377-379; PALMER V.
CONNECTICUT R. CO., 311 U.S. 544, 560-561; BIGELOW V. RKO RADIO
PICTURES, 327 U.S. 251, 263-266. 

WE THEREFORE TURN TO THE FACTS OF THIS CASE TO DETERMINE WHAT THE
PETITIONING EMPLOYEES HAVE PROVED AND ARE ENTITLED TO IN LIGHT OF THE
FOREGOING CONSIDERATIONS: 

(1)  ON THE ISSUE AS TO THE EXTENT OF THE ACTUAL PRODUCTIVE WORK
PERFORMED, WE ARE CONSTRAINED TO AGREE WITH THE SPECIAL MASTER THAT IT
BEGAN AND ENDED AT THE SCHEDULED HOURS.  THIS WAS PURELY A FACTUAL
ISSUE.  THE MASTER MADE HIS FINDINGS IN THIS RESPECT THROUGH THE
WEIGHING OF CONFLICTING EVIDENCE, THE JUDGING OF THE RELIABILITY OF
WITNESSES AND THE CONSIDERATION OF THE GENERAL CONDUCT OF THE PARTIES
TO THE SUIT.  THE MASTER THEREBY CONCLUDED THAT PRODUCTIVE WORK DID NOT
BEGIN BEFORE THE SCHEDULED HOURS EXCEPT IN A FEW INSTANCES WHICH WERE
COUNTERBALANCED BY OCCASIONS WHEN WORK BEGAN AFTER THE SCHEDULED HOURS
OR ENDED BEFORE THE SCHEDULED CESSATION OF PRODUCTIVE WORK.  OUR
EXAMINATION OF THE RECORD LEADS US TO ACQUIESCE IN THESE FINDINGS SINCE
THEY ARE SUPPORTED BY SUBSTANTIAL EVIDENCE AND ARE NOT CLEARLY
ERRONEOUS.  AND THE COURT BELOW CORRECTLY HELD THAT THE DISTRICT COURT
ERRED IN FAILING TO ACCEPT THESE FINDINGS AND IN CREATING A FORMULA OF
COMPENSATION BASED UPON A CONTRARY VIEW.  RULE 53(E)(2) OF THE FEDERAL
RULES OF CIVIL PROCEDURE.  SEE TILGHMAN V. PROCTOR, 125 U.S. 136, 149
150; DAVIS V. SCHWARTZ, 155 U.S. 631, 636-637. 

(2)  THE EMPLOYEES DID NOT PROVE THAT THEY WERE ENGAGED IN WORK FROM
THE MOMENT WHEN THEY PUNCHED IN AT THE TIME CLOCKS TO THE MOMENT WHEN
THEY PUNCHED OUT.  THEY WERE REQUIRED TO BE READY FOR WORK AT THEIR
BENCHES AT THE SCHEDULED STARTING TIMES.  THEY WERE GIVEN 14-MINUTE
PERIODS IN WHICH TO PUNCH THE TIME CLOCKS, WALK TO THE PLACES OF WORK
AND PREPARE FOR PRODUCTIVE LABORS.  BUT THERE WAS NO REQUIREMENT THAT
AN EMPLOYEE CHECK IN OR BE ON THE PREMISES AT ANY PARTICULAR TIME
DURING THAT 14-MINUTE INTERVAL.  AS NOTED BY THE DISTRICT COURT, THERE
WAS NO EVIDENCE "THAT IF THE EMPLOYEE DIDN'T GET THERE BY 14 MINUTES TO
SEVEN HE WAS FIRED AND THERE IS MUCH TESTIMONY TO PROVE THAT STRAGGLERS
CAME IN AS LATE AS ONE MINUTE TO SEVEN."  60 F.SUPP.  AT 149.  INDEED,
IT WOULD HAVE BEEN IMPOSSIBLE FOR ALL MEMBERS OF A PARTICULAR SHIFT TO
BE CHECKED IN AT THE SAME TIME IN VIEW OF THE RATE AT WHICH THE TIME
CLOCKS WERE PUNCHED.  THE FIRST PERSON IN LINE AT THE CLOCK WOULD BE
CHECKED IN AT LEAST 8 MINUTES BEFORE THE LAST PERSON.  IT WOULD BE
MANIFESTLY UNFAIR TO CREDIT THE FIRST PERSON WITH 8 MINUTES MORE
WORKING TIME THAN CREDITED TO THE LAST PERSON DUE TO THE FORTUITOUS
CIRCUMSTANCE OF HIS POSITION IN LINE. 

MOREOVER, IT IS GENERALLY RECOGNIZED THAT TIME CLOCKS DO NOT
NECESSARILY RECORD THE ACTUAL TIME WORKED BY EMPLOYEES.  WHERE THE
EMPLOYEE IS REQUIRED TO BE ON THE PREMISES OR ON DUTY AT A DIFFERENT
TIME, OR WHERE THE PAYROLL RECORDS OR OTHER FACTS INDICATE THAT WORK
STARTS AT AN EARLIER OR LATER PERIOD, THE TIME CLOCK RECORDS ARE NOT
CONTROLLING.  ONLY WHEN THEY ACCURATELY REFLECT THE PERIOD WORKED CAN
THEY BE USED AS AN APPROPRIATE MEASUREMENT OF THE HOURS WORKED.  IN
THIS CASE, HOWEVER, THE EVIDENCE FAILS TO INDICATE THAT THE TIME CLOCK
RECORDS DID SO MIRROR THE WORKING TIME.  THEY DID NOT SHOW THE TIME
DURING WHICH THE EMPLOYEES WERE COMPELLED TO BE ON THE PREMISES OR AT
ANY PRESCRIBED PLACE OF WORK.  THEY THUS COULD NOT FORM THE SOLE BASIS
OF DETERMINING THE STATUTORY WORKWEEK.  SEE INTERPRETATIVE BULLETIN NO.
13, PARAGRAPHS 2 AND 3, ISSUED BY THE ADMINISTRATOR OF THE WAGE AND
HOUR DIVISION, U.S. DEPARTMENT OF LABOR; WAGE AND HOUR MANUAL,
CUMULATIVE EDITION, 1944-1945, P. 234. 

(3)  THE EMPLOYEES DID PROVE, HOWEVER, THAT IT WAS NECESSARY FOR THEM
TO BE ON THE PREMISES FOR SOME TIME PRIOR AND SUBSEQUENT TO THE
SCHEDULED WORKING HOURS.  THE EMPLOYER REQUIRED THEM TO PUNCH IN, WALK
TO THEIR WORK BENCHES AND PERFORM PRELIMINARY DUTIES DURING THE 14
MINUTE PERIODS PRECEDING PRODUCTIVE WORK; THE SAME ACTIVITIES IN
REVERSE OCCURRED IN THE 14-MINUTE PERIODS SUBSEQUENT TO THE COMPLETION
OF PRODUCTIVE WORK.  SINCE THE STATUTORY WORKWEEK INCLUDES ALL TIME
DURING WHICH AN EMPLOYEE IS NECESSARILY REQUIRED TO BE ON THE
EMPLOYER'S PREMISES, ON DUTY OR AT A PRESCRIBED WORKPLACE, THE TIME
SPENT IN THESE ACTIVITIES MUST BE ACCORDED APPROPRIATE COMPENSATION. 

NO CLAIM IS HERE MADE, THOUGH, AS TO THE TIME SPENT IN WAITING TO
PUNCH THE TIME CLOCKS AND WE NEED NOT EXPLORE THAT ASPECT OF THE
SITUATION.  SEE CAMERON V. BENDIX AVIATION CORP., 65 F.SUPP.  510.  BUT
THE TIME NECESSARILY SPENT BY THE EMPLOYEES IN WALKING TO WORK ON THE
EMPLOYER'S PREMISES, FOLLOWING THE PUNCHING OF THE TIME CLOCKS, WAS
WORKING TIME WITHIN THE SCOPE OF SEC. 7(A).  BALLARD V. CONSOLIDATED
STEEL CORP., 61 F.SUPP.  996; ULLE V. DIAMOND ALKALI CO., 8 WHR 1042. 
SUCH TIME WAS UNDER THE COMPLETE CONTROL OF THE EMPLOYER, BEING
DEPENDENT SOLELY UPON THE PHYSICAL ARRANGEMENTS WHICH THE EMPLOYER MADE
IN THE FACTORY.  THOSE ARRANGEMENTS IN THIS CASE COMPELLED THE
EMPLOYEES TO SPEND AN ESTIMATED 2 TO 12 MINUTES DAILY, IF NOT MORE, IN
WALKING ON THE PREMISES.  WITHOUT SUCH WALKING ON THE PART OF THE
EMPLOYEES, THE PRODUCTIVE AIMS OF THE EMPLOYER COULD NOT HAVE BEEN
ACHIEVED.  THE EMPLOYEES' CONVENIENCE AND NECESSITY, MOREOVER, BORE NO
RELATION WHATEVER TO THIS WALKING TIME; THEY WALKED ON THE EMPLOYER'S
PREMISES ONLY BECAUSE THEY WERE COMPELLED TO DO SO BY THE NECESSITIES
OF THE EMPLOYER'S BUSINESS.  IN THAT RESPECT THE WALKING TIME DIFFERED
VITALLY FROM THE TIME SPENT IN TRAVELING FROM WORKERS' HOMES TO THE
FACTORY.  DOLLAR V. CADDO RIVER LUMBER CO., 43 F.SUPP.  822; WALLING V.
PEAVY-WILSON LUMBER CO., 49 F.SUPP.  846.  CF. COMMISSIONER V. FLOWERS,
326 U.S. 465.  IT FOLLOWS THAT THE TIME SPENT IN WALKING TO WORK ON THE
EMPLOYER'S PREMISES, AFTER THE TIME CLOCKS WERE PUNCHED, INVOLVED
"PHYSICAL OR MENTAL EXERTION (WHETHER BURDENSOME OR NOT) CONTROLLED OR
REQUIRED BY THE EMPLOYER AND PURSUED NECESSARILY AND PRIMARILY FOR THE
BENEFIT OF THE EMPLOYER AND HIS BUSINESS."  TENNESSEE COAL CO. V.
MUSCODA LOCAL, 321 U.S. 590, 598; JEWELL RIDGE CORP. V. LOCAL, 325 U.S.
161, 164-166.  WORK OF THAT CHARACTER MUST BE INCLUDED IN THE STATUTORY
WORKWEEK AND COMPENSATED ACCORDINGLY, REGARDLESS OF CONTRARY CUSTOM OR
CONTRACT. 

BUT UNDER THE CONDITIONS PREVALENT IN RESPONDENT'S PLANT, COMPENSABLE
WORKING TIME WAS LIMITED TO THE MINIMUM TIME NECESSARILY SPENT IN
WALKING AT AN ORDINARY RATE ALONG THE MOST DIRECT ROUTE FROM TIME CLOCK
TO WORK BENCH.  MANY EMPLOYEES TOOK ROUNDABOUT JOURNEYS AND STOPPED OFF
EN ROUTE FOR PURELY PERSONAL REASONS.  IT WOULD BE UNFAIR AND
IMPRACTICAL TO COMPENSATE THEM FOR DOING THAT WHICH THEY WERE NOT
REQUIRED TO DO.  ESPECIALLY IS THIS SO IN VIEW OF THE FACT THAT PRECISE
CALCULATION OF THE MINIMUM WALKING TIME IS EASILY OBTAINABLE IN THE
ORDINARY SITUATION. 

WE DO NOT, OF COURSE, PRECLUDE THE APPLICATION OF A DE MINIMIS RULE
WHERE THE MINIMUM WALKING TIME IS SUCH AS TO BE NEGLIGIBLE.  THE
WORKWEEK CONTEMPLATED BY SEC. 7(A) MUST BE COMPUTED IN LIGHT OF THE
REALITIES OF THE INDUSTRIAL WORLD.  WHEN THE MATTER IN ISSUE CONCERNS
ONLY A FEW SECONDS OR MINUTES OF WORK BEYOND THE SCHEDULED WORKING
HOURS, SUCH TRIFLES MAY BE DISREGARDED.  SPLITSECOND ABSURDITIES ARE
NOT JUSTIFIED BY THE ACTUALITIES OF WORKING CONDITIONS OR BY THE POLICY
OF THE FAIR LABOR STANDARDS ACT.  IT IS ONLY WHEN AN EMPLOYEE IS
REQUIRED TO GIVE UP A SUBSTANTIAL MEASURE OF HIS TIME AND EFFORT THAT
COMPENSABLE WORKING TIME IS INVOLVED.  THE DE MINIMIS RULE CAN
DOUBTLESS BE APPLIED TO MUCH OF THE WALKING TIME INVOLVED IN THIS CASE,
BUT THE PRECISE SCOPE OF THAT APPLICATION CAN BE DETERMINED ONLY AFTER
THE TRIER OF FACTS MAKES MORE DEFINITE FINDINGS AS TO THE AMOUNT OF
WALKING TIME IN ISSUE. 

(4)  THE EMPLOYEES PROVED, IN ADDITION, THAT THEY PURSUED CERTAIN
PRELIMINARY ACTIVITIES AFTER ARRIVING AT THEIR PLACES OF WORK, SUCH AS
PUTTING ON APRONS AND OVERALLS, REMOVING SHIRTS, TAPING OR GREASING
ARMS, PUTTING ON FINGER COTS, PREPARING THE EQUIPMENT FOR PRODUCTIVE
WORK, TURNING ON SWITCHES FOR LIGHTS AND MACHINERY, OPENING WINDOWS AND
ASSEMBLING AND SHARPENING TOOLS.  THESE ACTIVITIES ARE CLEARLY WORK
FALLING WITHIN THE DEFINITION ENUNCIATED AND APPLIED IN THE TENNESSEE
COAL AND JEWELL RIDGE CASES.  THEY INVOLVE EXERTION OF A PHYSICAL
NATURE, CONTROLLED OR REQUIRED BY THE EMPLOYER AND PURSUED NECESSARILY
AND PRIMARILY FOR THE EMPLOYER'S BENEFIT.  THEY ARE PERFORMED SOLELY ON
THE EMPLOYER'S PREMISES AND ARE A NECESSARY PREREQUISITE TO PRODUCTIVE
WORK.  THERE IS NOTHING IN SUCH ACTIVITIES THAT PARTAKES ONLY OF THE
PERSONAL CONVENIENCE OR NEEDS OF THE EMPLOYEES.  HENCE THEY CONSTITUTE
WORK THAT MUST BE ACCORDED APPROPRIATE COMPENSATION UNDER THE STATUTE. 
SEE WALLING V. FRANK, 62 F.SUPP.  261; PHILPOTT V. STANDARD OIL CO., 53
F.SUPP.  833.  HERE AGAIN, HOWEVER, IT IS APPROPRIATE TO APPLY A DE
MINIMIS DOCTRINE SO THAT INSUBSTANTIAL AND INSIGNIFICANT PERIODS OF
TIME SPENT IN PRELIMINARY ACTIVITIES NEED NOT BE INCLUDED IN THE
STATUTORY WORKWEEK. 

THE MASTER DID NOT DENY THAT SUCH ACTIVITIES MUST BE INCLUDED WITHIN
THE EMPLOYEES' COMPENSABLE WORKWEEK OR THAT THE EVIDENCE DEMONSTRATED
THAT THE EMPLOYEES DID IN FACT ENGAGE IN SUCH ACTIVITIES.  HE DENIED
RECOVERY SOLELY BECAUSE THE AMOUNT OF TIME TAKEN UP BY THE ACTIVITIES
AND THE PROPORTION OF IT SPENT IN ADVANCE OF THE ESTABLISHED STARTING
TIME HAD NOT BEEN PROVED BY THE EMPLOYEES WITH ANY DEGREE OF
RELIABILITY OR ACCURACY.  BUT, AS PREVIOUSLY NOTED, THE EMPLOYEES
CANNOT BE BARRED FROM THEIR STATUTORY RIGHTS ON SUCH A BASIS.  UNLESS
THE EMPLOYER CAN PROVIDE ACCURATE ESTIMATES, IT IS THE DUTY OF THE
TRIER OF FACTS TO DRAW WHATEVER REASONABLE INFERENCES CAN BE DRAWN FROM
THE EMPLOYEES' EVIDENCE AS TO THE AMOUNT OF TIME SPENT IN THESE
ACTIVITIES IN EXCESS OF THE PRODUCTIVE WORKING TIME. 

(5)  AS TO WAITING TIME BEFORE AND AFTER THE SHIFT PERIODS, THE
SPECIAL MASTER FOUND THAT THE EMPLOYEES HAD NOT PROVED THAT THEY WERE
IN FACT FORCED TO WAIT OR THAT THEY WERE NOT FREE TO SPEND SUCH TIME ON
THEIR OWN BEHALF.  THIS WAS ALSO A QUESTION OF FACT AND THE PRESENCE OF
SUBSTANTIAL EVIDENCE TO SUPPORT THE MASTER'S FINDING PRECLUDES ANY
DIFFERENT RESULT. 

THUS WE REMAND THE CASE FOR THE DETERMINATION OF THE AMOUNT OF
WALKING TIME INVOLVED AND THE AMOUNT OF PRELIMINARY ACTIVITIES
PERFORMED, GIVING DUE CONSIDERATION TO THE DE MINIMIS DOCTRINE AND
CALCULATING THE RESULTING DAMAGES UNDER THE ACT.  WE HAVE CONSIDERED
THE OTHER POINTS RAISED BY THE PETITIONERS BUT FIND NO ERRORS. 
REVERSED AND REMANDED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BURTON DISSENTING, WITH WHOM MR. JUSTICE FRANKFURTER
CONCURS. 

THE OPINION OF THE COURT IN THIS CASE HAS GONE FAR TOWARD AFFIRMING
THE CIRCUIT COURT OF APPEALS.  I BELIEVE IT SHOULD GO THE REST OF THE
WAY. 

THIS COURT HAS AGREED LARGELY WITH THE COURT OF APPEALS IN HOLDING
THAT THE DISTRICT COURT WAS IN ERROR IN NOT ACCEPTING THE MASTER'S
FINDINGS OF FACT IN THE FACE OF RULE 53(E)(2) OF THE FEDERAL RULES OF
CIVIL PROCEDURE WHICH REQUIRES THAT:  "IN AN ACTION TO BE TRIED WITHOUT
A JURY THE COURT SHALL ACCEPT THE MASTER'S FINDINGS OF FACT UNLESS
CLEARLY ERRONEOUS."  28 U.S.C. FOLLOWING SEC. 723(C). 

THIS COURT, ACCORDINGLY, AGREES THAT THE TRIAL COURT MUST ACCEPT AS
FINDINGS OF FACT IN THIS CASE THAT THE PRODUCTIVE WORK PERFORMED BY THE
EMPLOYEES BEGAN AND ENDED AT THE REGULARLY SCHEDULED HOURS OF WORK, ON
THE EVEN QUARTER-HOURS; THAT THE TIME CLOCKS WERE NOT CONTROLLING IN
ESTABLISHING THE EXACT MINUTE OF STARTING OR STOPPING WORK; THAT THE
TIME SPENT IN PUNCHING TIME CLOCKS DID NOT CONSTITUTE COMPENSABLE WORK;
AND THAT THE "WAITING TIME," IF ANY, BEFORE AND AFTER THE SHIFT PERIODS
WAS NOT COMPENSABLE TIME. 

THIS COURT ALSO AGREES THAT THE DISTRICT COURT WAS IN ERROR IN
CREATING A FORMULA OF COMPENSATION NOT IN ACCORDANCE WITH THE FINDINGS
OF THE MASTER. 

THE ONLY QUESTIONS REMAINING ARE WHETHER THE MOMENTS SPENT IN WALKING
FROM THE TIME CLOCKS TO THE EMPLOYEES' RESPECTIVE PLACES OF PRODUCTIVE
WORK WITHIN THE PLANT, AND THE MINUTES SOMETIMES SPENT BY SOME OF THE
EMPLOYEES IN MISCELLANEOUS "PRELIMINARY ACTIVITIES" BEFORE THE
SCHEDULED STARTING TIMES, MUST BE ADDED, AS A MATTER OF LAW "REGARDLESS
OF CONTRARY CUSTOM OR CONTRACT," TO THE COMPENSATORY TIME OF "THE
STATUTORY WEEK," AND, IF SO, HOW SUCH ADDITIONAL TIME CAN BE PROVED TO
HAVE BEEN SO USED IN ORDER TO MAKE IT THE BASIS FOR ADDITIONAL
COMPENSATION. 

THE MASTER DETERMINED THAT THE TIME SPENT IN WALKING FROM THE TIME
CLOCKS TO THE PLACES OF WORK WAS NOT COMPENSABLE WORKING TIME IN VIEW
OF THE ESTABLISHED CUSTOM IN THE INDUSTRY AND IN THE PLANT.  MOREOVER,
THE EMPLOYEES WERE FREE TO TAKE WHATEVER COURSE THROUGH THE PLANT THEY
DESIRED AND TO STOP OFF AT ANY POINT TO TALK WITH OTHER EMPLOYEES OR TO
DO WHATEVER ELSE THEY LIKED.  SOME WORKERS CAME TO THE TIME CLOCKS AS
LATE AS ONE MINUTE BEFORE THE TIME TO REACH THEIR PLACE OF PRODUCTIVE
WORK.  THE SO-CALLED "PRELIMINARY ACTIVITIES" ARE IDENTIFIED IN THIS
CASE AS THOSE OF "PUTTING ON APRONS AND OVERALLS, REMOVING SHIRTS,
TAPING OR GREASING THEIR ARMS, PUTTING ON FINGER COTS, PREPARING THE
EQUIPMENT FOR PRODUCTIVE WORK, TURNING ON SWITCHES FOR LIGHTS AND
MACHINERY, OPENING WINDOWS AND ASSEMBLING AND SHARPENING TOOLS."  THE
MASTER FOUND THAT THE EMPLOYEES HAD NOT OFFERED PROOF OF THE TIME USED
FOR THESE PURPOSES WITH A SUFFICIENT DEGREE OF RELIABILITY OR ACCURACY
FOR IT TO BECOME THE BASIS FOR RECOVERY OF OVERTIME COMPENSATION.  THE
EMPLOYER WOULD HAVE STILL GREATER DIFFICULTY IN KEEPING AN ACCURATE
RECORD OF THE TIME SPENT BY EACH EMPLOYEE IN SUCH ACTIVITIES.  THESE
ACTIVITIES ARE OF SUCH A NATURE THAT THE KNOWLEDGE OF THEM AND THE TIME
SPENT IN DOING THEM RESTS PARTICULARLY WITH THE EMPLOYEES THEMSELVES. 
SUCH ACTIVITIES ARE OF QUITE A DIFFERENT CHARACTER FROM THOSE MADE THE
BASIS OF COMPENSABLE TIME IN THE COAL MINE PORTAL-TO-PORTAL CASES. 
TENNESSEE COAL CO. V. MUSCODA LOCAL, 321 U.S. 590; JEWELL RIDGE CORP.
V. LOCAL, 325 U.S. 161. 

SOME IDEA OF THE SHORTNESS OF THE TIME AND THE SMALLNESS OF THE
COMPENSATION INVOLVED IN THE "PRELIMINARY ACTIVITIES," IN COMPARISON
WITH THE CUMBERSOMENESS OF ANY SYSTEM FOR ACCURATELY RECORDING THE TIME
SPENT IN DOING THEM, IS APPARENT FROM THE FORMULA TO WHICH THE DISTRICT
COURT RESORTED IN ATTEMPTING TO REACH ITS SOLUTION OF THE DIFFICULTY. 
UNDER THAT FORMULA, FOR EXAMPLE, THE DISTRICT COURT FOUND NO BASIS FOR
COMPENSATION FOR SUCH ACTIVITIES AFTER THE SCHEDULED QUITTING TIME. 
COMPENSABLE TIME SPENT IN SUCH ACTIVITIES WAS LIMITED TO A SHORT PERIOD
BEFORE THE SCHEDULED HOURS OF BEGINNING PRODUCTIVE WORK IN THE MORNING
AND AGAIN ON RESUMING WORK AFTER LUNCH.  EMPLOYEES WERE ALLOWED, OR
ENCOURAGED, TO COME TO THE PLANT 14 MINUTES AHEAD OF THE QUARTER HOUR
AT WHICH THEIR SCHEDULED PRODUCTIVE WORK BEGAN.  THE DISTRICT COURT
ESTIMATED THAT, ON AN AVERAGE, SEVEN MINUTES SHOULD BE ALLOWED, EACH
MORNING, FOR PUNCHING A TIME CLOCK AND WALKING FROM IT TO THE
EMPLOYEE'S PLACE OF PRODUCTIVE WORK.  AS TO THE "WALKING TIME" THE
COURT SAID, "THE PREPARATION EVEN AFTER PUNCHING THE CLOCK WOULDN'T
TAKE MORE THAN ONE OR ONE AND A HALF MINUTES AND TO THE FARTHEST POINT
IN THE PLANT FROM THE TIME CLOCK WOULDN'T TAKE MORE THAN 2 MINUTES." 
60 F.SUPP.  146, 149.  IF AN EMPLOYEE CAME TO THE PLANT 14 MINUTES
AHEAD OF TIME, THIS LEFT A MAXIMUM OF SEVEN MINUTES, PLUS "WALKING
TIME," AS THE BASIS FOR A COMPENSATORY CLAIM.  THE COMPENSATORY TIME IN
MANY CASES WOULD BE MUCH LESS.  SIMILARLY, UNDER THE DISTRICT COURT
FORMULA, EMPLOYEES RETURNING TO WORK AFTER LUNCH WERE ESTIMATED TO
CONSUME FIVE MINUTES IN PUNCHING THE CLOCK AND WALKING TO THEIR PLACES
OF PRODUCTIVE WORK.  THIS WOULD LEAVE A MAXIMUM OF NINE MINUTES, PLUS
"WALKING TIME."  AT THAT HOUR OF THE DAY THE WORKERS ALREADY WOULD BE
IN THEIR WORK CLOTHES AND THERE RARELY WOULD BE MORE THAN A MINUTE OR
TWO REQUIRED FOR THE PRELIMINARY ACTIVITIES FOR WHICH COMPENSATION WAS
CLAIMED. 

THE AMOUNTS AT ISSUE, THEREFORE, MIGHT NOT AVERAGE AS MUCH AS FIVE TO
TEN MINUTES A DAY A PERSON AND WOULD NOT APPLY AT ALL TO MANY OF THE
EMPLOYEES.  NONE OF THIS TIME WOULD HAVE BEEN SPENT AT PRODUCTIVE
WORK.  THE FUTILITY OF REQUIRING AN EMPLOYER TO RECORD THESE MINUTES
AND THE UNFAIRNESS OF PENALIZING HIM, FOR FAILURE TO DO A FUTILE THING,
BY IMPOSING ARBITRARY ALLOWANCES FOR "OVERTIME" AND LIQUIDATED DAMAGES
IS APPARENT. 

WHILE CONDITIONS VARY WIDELY AND THERE MAY BE CASES WHERE TIME
RECORDS OF "PRELIMINARY ACTIVITIES" OR "WALKING TIME" MAY BE
APPROPRIATE, YET HERE WE HAVE A CASE WHERE THE OBVIOUS, LONG
ESTABLISHED AND SIMPLE WAY TO COMPENSATE AN EMPLOYEE FOR SUCH
ACTIVITIES IS TO RECOGNIZE THOSE ACTIVITIES IN THE RATE OF PAY FOR THE
PARTICULAR JOB.  THESE ITEMS ARE APPROPRIATE FOR CONSIDERATION IN
COLLECTIVE BARGAINING. 

TO SUSTAIN THE POSITION OF THE COURT IN REQUIRING THESE ADDITIONAL
MOMENTS TO BE RECORDED AND COMPUTED AS OVERTIME, IT IS NECESSARY TO
HOLD THAT CONGRESS, IN USING THE WORD "WORKWEEK," MEANT TO GIVE THAT
WORD A STATUTORY MEANING DIFFERENT FROM ITS COMMONLY UNDERSTOOD
REFERENCE TO THE WORKING HOURS BETWEEN "STARTING" AND "QUITTING" TIME -
OR FROM "WHISTLE TO WHISTLE."  THERE IS NO EVIDENCE THAT CONGRESS MEANT
TO REDEFINE THIS COMMON TERM AND TO SET ASIDE LONG ESTABLISHED
CONTRACTS OR CUSTOMS WHICH HAD ABSORBED IN THE RATE OF PAY OF THE
RESPECTIVE JOBS RECOGNITION OF WHATEVER PRELIMINARY ACTIVITIES MIGHT BE
REQUIRED OF THE WORKER BY THAT PARTICULAR JOB.  FOR EXAMPLE, IF THE
PLANT BE ONE LOCATED AT AN INCONVENIENT PLACE, OR IF THE WORKERS HAVE
TO CHANGE INTO WORKING CLOTHES AT THE PLANT, OR HAVE TO GREASE OR TAPE
THEIR ARMS BEFORE GOING TO WORK, THESE ARE ITEMS PECULIAR TO THE JOB,
AND COMPENSATION FOR THEM EASILY CAN BE MADE IN THE RATE OF PAY PER
HOUR, PER WEEK OR PER PIECE, AND ALL SPECIAL STOP-WATCH RECORDING OF
THEM ELIMINATED. 

IN INTERPRETING "WORKWEEK" AS APPLIED TO THE INDUSTRIES OF AMERICA,
IT IS IMPORTANT TO CONSIDER THE TERM AS APPLICABLE NOT MERELY TO LARGE
AND ORGANIZED INDUSTRIES WHERE ACTIVITIES MAY BE FORMALIZED AND EASILY
MEASURED ON A SPLIT-SECOND BASIS.  THE TERM MUST BE APPLIED EQUALLY TO
THE HUNDREDS OF THOUSANDS OF SMALL BUSINESSES AND SMALL PLANTS
EMPLOYING LESS THAN 200, AND OFTEN LESS THAN 50 WORKERS, WHERE THE
RECORDING OF OCCASIONAL MINUTES OF PRELIMINARY ACTIVITIES AND WALKING
TIME WOULD BE HIGHLY IMPRACTICAL AND THE PENALTIES OF LIQUIDATED
DAMAGES FOR A NEGLECT TO DO SO WOULD BE UNREASONABLE.  SUCH A UNIVERSAL
REQUIREMENT OF RECORDING WOULD LEAD TO INNUMERABLE UNNECESSARY MINOR
CONTROVERSIES BETWEEN EMPLOYERS AND EMPLOYEES.  "WORKWEEK" IS A SIMPLE
TERM USED BY CONGRESS IN ACCORDANCE WITH THE COMMON UNDERSTANDING OF
IT.  FOR THIS COURT TO INCLUDE IN IT ITEMS THAT HAVE BEEN CUSTOMARILY
AND GENERALLY ABSORBED IN THE RATE OF PAY BUT EXCLUDED FROM MEASURED
WORKING TIME IS NOT JUSTIFIED IN THE ABSENCE OF AFFIRMATIVE LEGISLATIVE
ACTION. 

FOR THESE REASONS, I BELIEVE THAT THE JUDGMENT OF THE COURT OF
APPEALS SHOULD BE AFFIRMED. 
..END :












UNITED STATES V. ANDERSON, 328 U.S. 699 


NO. 447.  ARGUED MARCH 26, 1946.  - DECIDED JUNE 10, 1946.  - 60
F.SUPP.  649, REVERSED. 


1.  IN A CRIMINAL PROSECUTION UNDER SEC. 11 OF THE SELECTIVE TRAINING
AND SERVICE ACT, FOR REFUSAL OF THE DEFENDANT TO SUBMIT TO INDUCTION
INTO THE ARMED FORCES, THE VENUE IS PROPERLY LAID IN THE JUDICIAL
DISTRICT WHERE THE ACT OF REFUSAL OCCURRED, RATHER THAN IN THE DISTRICT
WHERE THE DRAFT BOARD WHICH ISSUED THE ORDER IS LOCATED.  P. 704. 

2.  IN A PROSECUTION UNDER SEC. 11 OF THE SELECTIVE TRAINING AND
SERVICE ACT FOR REFUSAL TO SUBMIT TO INDUCTION, A JUDGMENT OF THE
DISTRICT COURT SUSTAINING A DEMURRER TO THE INDICTMENT ON THE GROUND OF
IMPROPER VENUE IS APPEALABLE DIRECTLY TO THIS COURT UNDER THE CRIMINAL
APPEALS ACT.  PP. 700-702. 

UNITED STATES V. ANDERSON. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF WASHINGTON. 

A DEMURRER TO AN INDICTMENT OF THE APPELLEE FOR A VIOLATION OF THE
SELECTIVE TRAINING AND SERVICE ACT WAS SUSTAINED BY THE DISTRICT
COURT.  60 F.SUPP.  649.  THE GOVERNMENT APPEALED DIRECTLY TO THIS
COURT UNDER THE CRIMINAL APPEALS ACT.  REVERSED, P. 706. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

ON THE MERITS THE ISSUE IS NARROW, NAMELY, WHETHER IN A CRIMINAL
PROSECUTION UNDER SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE ACT, 54
STAT. 885, 894, 50 U.S.C. APP. SEC. 311, FOR REFUSAL TO SUBMIT TO
INDUCTION, THE VENUE IS PROPERLY LAID IN THE JUDICIAL DISTRICT WHERE
THE ACT OF REFUSAL OCCURRED RATHER THAN IN THE DISTRICT WHERE THE DRAFT
BOARD WHICH ISSUED THE ORDER IS LOCATED. 

THE FACTS IN THE CASE ARE SIMPLE.  A DRAFT BOARD IN THE CITY OF
SPOKANE, WASHINGTON, HAD JURISDICTION OVER APPELLEE.  HE OBEYED AN
ORDER TO REPORT FOR INDUCTION ISSUED BY THIS BOARD AND, WITH OTHERS
SELECTED, WENT FROM SPOKANE TO FORT LEWIS, WASHINGTON.  AT FORT LEWIS
HE REFUSED TO TAKE THE OATH OF INDUCTION UNLESS ASSURED THAT ARMY
REGULATIONS REQUIRING VACCINATION WOULD BE WAIVED.  THE ASSURANCE WAS
REFUSED.  HE WAS NOT INDUCTED AND RETURNED TO SPOKANE.  LATER HE WAS
INDICTED IN THE DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON,
WHERE FORT LEWIS IS LOCATED, FOR HIS REFUSAL TO SUBMIT TO INDUCTION. 

APPELLEE DEMURRED TO THE INDICTMENT.  ONE GROUND WAS THAT THE COURT
HAD "NO JURISDICTION OF THE DEFENDANT OR THE SUBJECT MATTER OF THE
ACTION."  THE DISTRICT COURT TOOK JUDICIAL NOTICE THAT, ALTHOUGH FORT
LEWIS WAS WITHIN ITS TERRITORIAL JURISDICTION, THE CITY OF SPOKANE WAS
LOCATED WITHIN THE EASTERN DISTRICT OF WASHINGTON.  BELIEVING THE
PROPER VENUE WAS THE DISTRICT WHERE THE DRAFT BOARD WAS LOCATED, THE
COURT CONCLUDED THAT IN THESE CIRCUMSTANCES IT HAD NO JURISDICTION OVER
THE OFFENSE.  ACCORDINGLY, IT SUSTAINED THE DEMURRER.  FN1  60 F.SUPP. 
649. 

THE UNITED STATES HAS APPEALED DIRECTLY TO THIS COURT UNDER THE
CRIMINAL APPEALS ACT.  FN2  WE POSTPONED DETERMINATION OF OUR
JURISDICTION TO THE HEARING ON THE MERITS. 

THE CRIMINAL APPEALS ACT PERMITS A DIRECT APPEAL BY THE UNITED STATES
FROM DISTRICT COURTS IN CRIMINAL CASES: 

"FROM A DECISION OR JUDGMENT QUASHING, SETTING ASIDE, OR SUSTAINING A
DEMURRER OR PLEA IN ABATEMENT TO 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." 

WE THINK THE GOVERNMENT IS CORRECT IN AVAILING ITSELF OF THE RIGHT TO
APPEAL.  ORDINARILY WHEN A DISTRICT COURT SUSTAINS A DEMURRER TO AN
INDICTMENT ON THE GROUND OF IMPROPER VENUE THE GOVERNMENT MAY APPEAL
DIRECTLY TO THIS COURT.  COMPARE UNITED STATES V. JOHNSON, 53 F.SUPP. 
596, WITH UNITED STATES V. JOHNSON, 323 U.S. 273; UNITED STATES V.
LOMBARDO, 228 F. 980, WITH UNITED STATES V. LOMBARDO, 241 U.S. 73; SEE
UNITED STATES V. FREEMAN, 239 U.S. 117; UNITED STATES V. MIDSTATE
HORTICULTURAL CO., 306 U.S. 161.  THIS IS TRUE AT ANY RATE WHERE THE
STATUTE ITSELF CONTAINS A VENUE PROVISION.  CF., HOWEVER, UNITED STATES
V. JOHNSON, SUPRA. 

THAT OFFENSES SUCH AS THE ONE WITH WHICH APPELLEE WAS CHARGED SHALL BE
TRIED "IN THE DISTRICT COURT OF THE UNITED STATES HAVING JURISDICTION
THEREOF."  FN4  THE DISTRICT COURT DETERMINED THAT IT DID NOT HAVE
"JURISDICTION" OF THE OFFENSE.  IN DOING SO IT NECESSARILY CONSTRUED
THE ACT.  FN5  FOR IN THIS CASE, AS IN UNITED STATES V. MIDSTATE
HORTICULTURAL CO., SUPRA, THE STATUTE UNDER WHICH THE INDICTMENT WAS
RETURNED "PROVIDES EXPRESSLY FOR THE JURISDICTION OVER OFFENSES CREATED
BY IT  ..."  FN6 

ACCORDINGLY THIS COURT HAS JURISDICTION OF THE APPEAL.  WE THEREFORE
PASS TO CONSIDERATION OF THE MERITS. 

THE "JURISDICTIONAL" PROVISION IN SEC. 11 IS APPARENTLY DERIVED FROM
THE SELECTIVE DRAFT ACT OF 1917, 40 STAT. 76.  FN7  SECTION 6 OF THAT
STATUTE PROVIDED THAT THOSE CHARGED WITH OFFENSES UNDER OR AGAINST THE
ACT "SHALL, IF NOT SUBJECT TO MILITARY LAW, BE GUILTY OF A MISDEMEANOR,
AND UPON CONVICTION IN THE DISTRICT COURT OF THE UNITED STATES HAVING
JURISDICTION THEREOF, BE PUNISHED BY IMPRISONMENT FOR NOT MORE THAN ONE
YEAR  ...."  THE LEGISLATIVE HISTORY OF THE 1917 ACT SHOWS THAT THE
BILLS ORIGINALLY INTRODUCED IN THE SENATE AND HOUSE OF REPRESENTATIVES
READ SOMEWHAT DIFFERENTLY.  THE LANGUAGE WAS "UPON CONVICTION IN THE
PROPER DISTRICT COURT OF THE UNITED STATES."  HOWEVER, THE COMMITTEE ON
MILITARY AFFAIRS OF THE HOUSE OF REPRESENTATIVES RECOMMENDED THE CHANGE
IN PHRASEOLOGY,  FN8  AND BOTH THE HOUSE AND THE SENATE ACCEPTED THE
CHANGE.  FN9 

THERE IS NOTHING IN EITHER THE STATUTE OR THE LEGISLATIVE HISTORY TO
SHOW AN INTENTION ON THE PART OF CONGRESS TO DEPART FROM THE SIXTH
AMENDMENT'S COMMAND THAT TRIALS SHALL BE IN THE "STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED  ..."  EXACTLY THE CONTRARY
WAS THE PURPOSE AND EFFECT OF THE PROVISION. 

SINCE THE STATUTE DOES NOT INDICATE WHERE CONGRESS CONSIDERED THE
PLACE OF COMMITTING THE CRIME TO BE, COMPARE ARMOUR PACKING CO. V.
UNITED STATES, 209 U.S. 56, WITH UNITED STATES V. JOHNSON, SUPRA, THE
LOCUS DELICTI MUST BE DETERMINED FROM THE NATURE OF THE CRIME ALLEGED
AND THE LOCATION OF THE ACT OR ACTS CONSTITUTING IT.  CF. UNITED STATES
V. BOWMAN, 260 U.S. 94, 97-98. 

ALTHOUGH ANDERSON REPORTED TO FORT LEWIS IN ACCORDANCE WITH THE DRAFT
BOARD'S ORDER AND, SO FAR AS APPEARS, OBSERVED IT IN EVERY OTHER
RESPECT EXCEPT THE FINAL STEP OF TAKING THE OATH AND THUS SUBMITTING TO
INDUCTION, CF. ESTEP V. UNITED STATES, 327 U.S. 114; BILLINGS V.
TRUESDELL, 321 U.S. 542; FALBO V. UNITED STATES, 320 U.S. 549, THE
DISTRICT COURT CONCLUDED THAT THE ACT, TOGETHER WITH THE REGULATIONS,
"CLEARLY FIXES THE JURISDICTION OF THE COURTS IN REFERENCE TO
VIOLATIONS SUCH AS HERE INVOLVED, AS BEING IN THE PLACE WHERE THE LOCAL
DRAFT BOARD IS LOCATED."  IT SUPPORTED THIS CONCLUSION BY INFERENCE
FROM VARIOUS REGULATIONS.  FN10 

WE THINK THE DISTRICT COURT WAS IN ERROR.  NOTHING IN THE ACT APART
FROM SEC. 11, OR IN THE REGULATIONS RELIED ON, EVEN PURPORTS TO DEAL
WITH VENUE OR JURISDICTION FOR THE TRIAL OF VIOLATIONS, OR JUSTIFIES AN
INFERENCE THAT ANY EFFORT WAS MADE TO FIX THE PLACE FOR ALL SUCH TRIALS
IN THE DISTRICT WHERE THE DRAFT BOARD IS LOCATED.  FN11  WE NEED NOT
INQUIRE HOW FAR THIS MIGHT HAVE BEEN DONE, IF ATTEMPTED.  BUT
OBVIOUSLY, IN VIEW OF THE SIXTH AMENDMENT'S PROVISION, NO SUCH OVER-ALL
EFFORT COULD BE EFFECTIVE AS TO ANY VIOLATION TAKING PLACE OUTSIDE THAT
DISTRICT.  THE CONSTITUTIONAL SPECIFICATION IS GEOGRAPHIC; AND THE
GEOGRAPHY PRESCRIBED IS THE DISTRICT OR DISTRICTS  FN12  WITHIN WHICH
THE OFFENSE IS COMMITTED.  THIS MAY OR MAY NOT BE THE PLACE WHERE THE
DEFENDANT RESIDES; WHERE THE DRAFT BOARD IS LOCATED; OR WHERE THE DUTY
VIOLATED WOULD BE PERFORMED, IF PERFORMED IN FULL.  THE PLACES OF
RESIDENCE,  FN13  OF THE DRAFT BOARD'S LOCATION, OF FINAL AND COMPLETE
PERFORMANCE,  FN14  ALL MAY BE SITUATED IN DISTRICTS DIFFERENT FROM
THAT WHERE THE CRIMINAL ACT IS DONE.  WHEN THEY SO DIFFER, IT IS THE
LATTER, NOT ANY OF THE FORMER, WHICH DETERMINES THE JURISDICTION. 
FN15 

IT IS, OF COURSE, NECESSARY IN ORDER TO DECIDE WHERE THE CRIME IS
COMMITTED TO ASCERTAIN WHAT DUTY IT WAS, THE FAILURE TO PERFORM WHICH
CONSTITUTES THE CRIME, AND ALSO WHAT ACTS OF THE DEFENDANT CONSTITUTED
THE VIOLATION.  DIFFICULTIES AT TIMES ARISE IN THESE RESPECTS,
ESPECIALLY WHERE THE CRIME CONSISTS MERELY IN OMITTING TO DO SOMETHING
WHICH IS COMMANDED TO BE DONE.  FN16 

IN THIS CASE, HOWEVER, THE PROBLEM IS NOT DIFFICULT.  FOR THE DUTY
WAS CLEAR AND PRECISE, AS WERE THE PLACE OF PERFORMANCE AND THE PLACE
OF REFUSAL TO PERFORM; AND THE TWO PLACES WERE IDENTICAL. 

THE DUTY WAS TO SUBMIT TO INDUCTION.  IN THE FACTS HERE, IT WAS TO
TAKE THE OATH.  THE PLACE WHERE THIS WAS REQUIRED TO BE DONE WAS FORT
LEWIS AND NOWHERE ELSE.  THE PLACE WHERE APPELLEE REFUSED, FLATLY AND
UNEQUIVOCALLY, TO TAKE IT AND THEREBY TO SUBMIT TO INDUCTION WAS
LIKEWISE FORT LEWIS.  UNTIL THAT REFUSAL, AS THE GOVERNMENT SAYS, HE
HAD VIOLATED NO PROVISION OF THE LAW OR OF ANY REGULATION.  IT WAS HIS
RIGHT UNDER THE FALBO, BILLINGS AND ESTEP DECISIONS TO EXHAUST THE
ENTIRE ADMINISTRATIVE PROCESS UP TO THE FINAL STEP BEFORE INDUCTION, AS
HE DID.  THEN FOR THE FIRST TIME HE DECLINED TO GO FORWARD AS HE WAS
REQUIRED TO DO.  THIS REFUSAL WAS HIS CRIME.  IT TOOK PLACE AT FORT
LEWIS.  THE DISTRICT COURT ACCORDINGLY HAD JURISDICTION. 

WE EXPRESS NO OPINION CONCERNING WHETHER APPELLEE'S CONTINUED
FAILURE, AFTER RETURNING TO SPOKANE, TO TAKE THE OATH WOULD HAVE
CONFERRED JURISDICTION WITHIN THAT DISTRICT UNDER THE IDEA OF
CONTINUING OFFENSE.  NOR NEED WE EXPRESS VIEWS CONCERNING ANY OTHER
SITUATION NOT INVOLVED IN THE FACTS, FOR EXAMPLE, SUCH AS WOULD BE
PRESENTED ON THE PRESENT INDICTMENT IF APPELLEE HAD NEVER LEFT SPOKANE
OR REPORTED AT FORT LEWIS. 

THE JUDGMENT IS REVERSED. 

FN1  SUBSEQUENTLY ON REHEARING THE DISTRICT COURT AGAIN SUSTAINED THE
DEMURRER ON THE GROUND THAT "THIS COURT HAS NO JURISDICTION OF THE
DEFENDANT, NOR OF THE SUBJECT MATTER OF THIS ACTION." 

FN2  ACT OF MARCH 2, 1907, 34 STAT. 1246, AS AMENDED BY THE ACT OF
MAY 9, 1942, 56 STAT. 271; 18 U.S.C. SEC. 682. 

FN3  SECTION 11 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940(54
STAT. 894, 50 U.S.C. APP. SEC. 311) PROVIDES: 

"ANY PERSON CHARGED AS HEREIN PROVIDED WITH THE DUTY OF CARRYING OUT
ANY OF THE PROVISIONS OF THIS ACT, OR THE RULES OR REGULATIONS MADE OR
DIRECTIONS GIVEN THEREUNDER, WHO SHALL KNOWINGLY FAIL OR NEGLECT TO
PERFORM SUCH DUTY, AND ANY PERSON CHARGED WITH SUCH DUTY, OR HAVING AND
EXERCISING ANY AUTHORITY UNDER SAID ACT, RULES, REGULATIONS, OR
DIRECTIONS WHO SHALL KNOWINGLY MAKE, OR BE A PARTY TO THE MAKING, OF
ANY FALSE, IMPROPER, OR INCORRECT REGISTRATION, CLASSIFICATION,
PHYSICAL OR MENTAL EXAMINATION, DEFERMENT, INDUCTION, ENROLLMENT, OR
MUSTER, AND ANY PERSON WHO SHALL KNOWINGLY MAKE, OR BE A PARTY TO THE
MAKING OF, ANY FALSE STATEMENT OR CERTIFICATE AS TO THE FITNESS OR
UNFITNESS OR LIABILITY OR NONLIABILITY OF HIMSELF OR ANY OTHER PERSON
FOR SERVICE UNDER THE PROVISIONS OF THIS ACT, OR RULES, REGULATIONS, OR
DIRECTIONS MADE PURSUANT THERETO, OR WHO OTHERWISE EVADES REGISTRATION
OR SERVICE IN THE LAND OR NAVAL FORCES OR ANY OF THE REQUIREMENTS OF
THIS ACT, OR WHO KNOWINGLY COUNSELS, AIDS, OR ABETS ANOTHER TO EVADE
REGISTRATION OR SERVICE IN THE LAND OR NAVAL FORCES OR ANY OF THE
REQUIREMENTS OF THIS ACT, OR OF SAID RULES, REGULATIONS, OR DIRECTIONS,
OR WHO IN ANY MANNER SHALL KNOWINGLY FAIL OR NEGLECT TO PERFORM ANY
DUTY REQUIRED OF HIM UNDER OR IN THE EXECUTION OF THIS ACT, OR RULES OR
REGULATIONS MADE PURSUANT TO THIS ACT, OR ANY PERSON OR PERSONS WHO
SHALL KNOWINGLY HINDER OR INTERFERE IN ANY WAY BY FORCE OR VIOLENCE
WITH THE ADMINISTRATION OF THIS ACT OR THE RULES OR REGULATIONS MADE
PURSUANT THERETO, OR CONSPIRE TO DO SO, SHALL, UPON CONVICTION IN THE
DISTRICT COURT OF THE UNITED STATES HAVING JURISDICTION THEREOF, 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, OR IF SUBJECT
TO MILITARY OR NAVAL LAW MAY BE TRIED BY COURT MARTIAL, AND, ON
CONVICTION, SHALL SUFFER SUCH PUNISHMENT AS A COURT MARTIAL MAY DIRECT
...." 

FN4  THE GOVERNMENT SUGGESTS THAT THIS IS NOT A "MERE VENUE
PROVISION" BUT "PRESCRIBES A NON-WAIVABLE TERRITORIAL JURISDICTION
LIMITATION."  WE NEED NOT DECIDE THAT QUESTION IN THIS CASE. 

FN5  THIS IS TRUE, EVEN THOUGH THE DISTRICT COURT LOOKED TO THE
REGULATIONS PROMULGATED UNDER THE ACT AS AIDS IN INTERPRETATION.  TO
WHAT SOURCES A COURT MAY GO FOR ITS CONCLUSIONS IS NOT IMPORTANT, FOR
PURPOSES OF THE CRIMINAL APPEALS ACT, SO LONG AS THE END RESULT IS A
CONSTRUCTION OF THE STATUTE. 

FN6  UNITED STATES V. MIDSTATE HORTICULTURAL CO., 306 U.S. 161, 163,
NOTE 2.  THAT CASE TURNED ON A NOT VERY DISSIMILAR PROVISION.  ID. AT
164-165.  CF. NOTE 4. 

FN7  NO DISCUSSION OF THE PROVISION IS TO BE FOUND IN THE LEGISLATIVE
HISTORY OF THE SELECTIVE TRAINING AND SERVICE ACT.  THE BILLS
INTRODUCED IN THE SENATE AND THE HOUSE CONTAINED THE SAME LANGUAGE
EMPLOYED IN THE ACT AS IT WAS FINALLY PASSED.  S. 4164, 76TH CONG., 3D
SESS., INTRODUCED AT 86 CONG. REC. 8680; H.R. 10132, 76TH CONG., 3D
SESS., INTRODUCED AT 86 CONG. REC. 8908. 

FN8  H.R. REP. NO. 17, 65TH CONG., 1ST SESS., 1. 

FN9  THE HOUSE OF REPRESENTATIVES PASSED THE BILL WITH THE PROVISION
AS RECOMMENDED BY THE COMMITTEE ON MILITARY AFFAIRS.  THE SENATE PASSED
IT WITH THE PROVISION IN ITS ORIGINAL FORM BUT SUBSEQUENTLY A
CONFERENCE COMMITTEE ADOPTED THE HOUSE VERSION.  H.R. REP. NO. 49, 65TH
CONG., 1ST SESS. 

FN10  THE REGULATIONS UPON WHICH THE DISTRICT COURT RELIED IN PART,
WITH SPECIAL EMPHASIS ON SEC. 613.14, ARE NOT PERTINENT.  AS THE
GOVERNMENT SAYS, THEY RELATE "TO THE PERFORMANCE OF THE ADMINISTRATIVE
FUNCTIONS OF THE SELECTIVE SERVICE SYSTEM AND ARE NOT DIRECTED IN ANY
SENSE TO THE QUESTION OF VENUE" OR JURISDICTION OF THE COURTS TO TRY
OFFENSES ARISING UNDER THE ACT.    THE DISTRICT COURT ALSO THOUGHT SOME
SUPPORT FOR ITS RULING COULD BE DERIVED FROM THE DECISIONS IN UNITED
STATES V. COLLURA, 139 F.2D 345, AND UNITED STATES V. VAN DEN BERG, 139
F.2D 654, ALTHOUGH NOT REGARDING EITHER AS DIRECTLY IN POINT. 

FN11 IT WAS NOTED IN THE PETITION FOR REHEARING IN THE DISTRICT
COURT, HOWEVER, THAT THE DEPARTMENT OF JUSTICE IN 1942 HAD INSTRUCTED
UNITED STATES ATTORNEYS THAT, IN CASES OF FAILURE TO REPORT FOR
INDUCTION, "VENUE IS IN THE DISTRICT WHERE THE SUBJECT WAS ORDERED TO
REPORT," APPARENTLY WITHOUT REGARD TO WHETHER HE HAD EVER BEEN PRESENT
PHYSICALLY THERE.    FN12  WITHIN THE DOCTRINE OF CONTINUING OFFENSES,
AS TO WHICH TRIAL CONSTITUTIONALLY MAY BE HAD IN ONE OR ANOTHER OF THE
DISTRICTS IN WHICH THE OFFENSE IS CARRIED ON.  ARMOUR PACKING CO. V.
UNITED STATES, 209 U.S. 56; CF. UNITED STATES V. JOHNSON, 323 U.S.
273. 

FN13  CF. HAAS V. HENKEL, 216 U.S. 462; ANDRADE V. UNITED STATES, 16
F.2D 776; UNITED STATES V. JORDAN, 22 F.2D 702; UNITED STATES V. MAYER,
22 F.2D 827. 

FN14  COMPARE THE CASES HOLDING THAT WHEN AN OMISSION TO ACT IS THE
CRIME, THE VENUE IS THE JURISDICTIONAL LOCALITY WHERE THE ACT SHOULD
HAVE BEEN PERFORMED, E.G., REGINA V. MILNER, 2 CAR.  & K. 309, 175 ENG.
REP. 128; NEW YORK CENT. & H.R.R. CO. V. UNITED STATES, 166 F. 267,
269; STATE V. YOCUM, 182 IND. 478, 106 N.E. 705; STATE V. BREWSTER, 87
N.J.L. 75, 93 A. 189; STATE V. PEABODY, 25 R.I. 544, 56 A. 1028; 1
BISHOP, NEW CRIMINAL PROCEDURE (2D ED.)  SEC.  53(5).  SEE UNITED
STATES V. LOMBARDO, 241 U.S. 73; RUMELY V. MCCARTHY, 250 U.S. 283;
UNITED STATES V. VAN DEN BERG, 139 F.2D 654, 656. 

FN15  HAAS V. HENKEL, 216 U.S. 462. 

FN16  CF. AUTHORITIES CITED IN NOTE 14. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















HUST V. MOORE-MCCORMACK LINES, 328 U.S. 707 


NO. 625.  ARGUED APRIL 22, 29, 1946.  - DECIDED JUNE 10, 1946.  - 176
ORE.  662, 158 P.2D 275, REVERSED. 


1.  A SEAMAN EMPLOYED ON A SHIP OWNED BY THE UNITED STATES AND
OPERATED FOR THE WAR SHIPPING ADMINISTRATION BY A PRIVATE COMPANY "AS
ITS AGENT AND NOT AS AN INDEPENDENT CONTRACTOR" UNDER THE STANDARD FORM
OF GENERAL AGENT SERVICE AGREEMENT WAS INJURED A FEW DAYS BEFORE THE
EFFECTIVE DATE OF THE CLARIFICATION ACT OF MARCH 24, 1943, DUE TO THE
NEGLIGENT OPERATION OF THE SHIP.  HELD:  HE IS ENTITLED TO SUE THE
OPERATING COMPANY FOR DAMAGES IN A STATE COURT AND TO HAVE A JURY TRIAL
UNDER SEC. 33 OF THE MERCHANT MARINE ACT OF 1920(THE JONES ACT), EVEN
IF HE WAS TECHNICALLY AN EMPLOYEE OF THE UNITED STATES.  PP. 715-734. 

2.  THE PURPOSE OF THE SUITS IN ADMIRALTY ACT WAS TO EXPAND, NOT TO
RESTRICT, THE RIGHTS OF SEAMEN.  TO INTERPRET IT AS INTENDED TO
DISPLACE THE SETTLED SCHEME OF PRIVATE RIGHTS OF SEAMEN DURING A PERIOD
OF TEMPORARY GOVERNMENTAL CONTROL OF THE ENTIRE MERCHANT MARINE WOULD
BE TO PERVERT ITS WHOLE PURPOSE, CREATE NUMEROUS UNCERTAINTIES, AND
CAUSE THE LOSS OF SUBSTANTIVE RIGHTS LONG ENJOYED BY SEAMEN.  PP. 715
723. 

3.  EVEN IF THE SEAMAN WAS AN EMPLOYEE OF THE UNITED STATES, THIS DID
NOT REMIT HIM EXCLUSIVELY TO THE SUITS IN ADMIRALTY ACT FOR REMEDY TO
ENFORCE THE SUBSTANTIVE RIGHTS GIVEN BY THE JONES ACT OR DEPRIVE HIM OF
ALL REMEDIES AGAINST THE OPERATING "AGENT" FOR SUCH INJURIES AS HE
INCURRED.  PP. 723, 724. 

4.  AN APPLICATION OF THE COMMON LAW RULES OF PRIVATE AGENCY TO
DEFEAT THE JONES ACT CANNOT BE JUSTIFIED IN THIS TEMPORARY SITUATION,
SINCE NEITHER CONGRESS NOR THE PRESIDENT INTENDED TO TAKE AWAY THE
NORMALLY APPLICABLE RIGHTS AND REMEDIES OF SEAMEN WHEN THE MARITIME
INDUSTRY WAS TRANSFERRED TEMPORARILY TO GOVERNMENTAL CONTROL FOR THE
DURATION OF THE WAR EMERGENCY.  PP. 724, 725, 730, 731. 

5.  NOTHING IN THE JONES ACT, THE SUITS IN ADMIRALTY ACT, THE WAR
POWERS ACT OF 1941, OR THE EXECUTIVE ORDERS BY WHICH THE MARITIME
INDUSTRY WAS TRANSFERRED TO GOVERNMENTAL CONTROL COMPELS A CONTRARY
CONCLUSION.  P. 725. 

6.  THAT THE WARTIME TRANSFER OF THE MERCHANT MARINE FROM PRIVATE TO
GOVERNMENT CONTROL WAS NOT INTENDED TO DEPRIVE THE SEAMAN OF HIS RIGHT
TO SUE UNDER THE JONES ACT IS CONFIRMED BY THE CLARIFICATION ACT.  ONE
PRIMARY OCCASION FOR THE PASSAGE OF THE CLARIFICATION ACT WAS TO SAVE
THE SEAMAN'S RIGHTS RATHER THAN TO TAKE THEM AWAY.  PP. 725-734. 

7.  IN ITS RETROACTIVELY OPERATING PROVISIONS, HERE APPLICABLE, THE
CLARIFICATION ACT GIVES THE SEAMAN AN ELECTION BETWEEN ENFORCING HIS
RIGHTS IN THE USUAL MANNER AND ASSERTING THEM AGAINST THE UNITED STATES
UNDER THE SUITS IN ADMIRALTY ACT.  IT WOULD NULLIFY THIS ELECTION TO
HOLD THAT THE SEAMAN'S ONLY REMEDY FOR INJURIES INCURRED BEFORE THE
CLARIFICATION ACT BECAME EFFECTIVE WAS UNDER THE SUITS IN ADMIRALTY
ACT.  PP. 729, 730. 

8.  THE MERE FACT THAT THE STANDARD FORM OF GENERAL AGENT SERVICE
AGREEMENT WAS CHANGED SO AS TO OMIT THE PROVISION FOR THE OPERATING
AGENT TO MAN THE SHIP DID NOT DEPRIVE SEAMEN OF THE LONG-ESTABLISHED
SCHEME OF RIGHTS AND REMEDIES PROVIDED BY LAW OR REDUCE THEM TO THE
SINGLE MODE OF ENFORCEMENT UNDER THE SUITS IN ADMIRALTY PROCEDURE.  PP.
730, 731. 

HUST V. MOORE-MCCORMACK LINES, INC. 

CERTIORARI TO THE SUPREME COURT OF OREGON. 

A SEAMAN INJURED ABOARD A SHIP OWNED BY THE UNITED STATES BROUGHT
SUIT AND OBTAINED A JUDGMENT FOR DAMAGES IN AN OREGON COURT UNDER SEC.
33 OF THE MERCHANT MARINE ACT OF 1920(THE JONES ACT) AGAINST A
STEAMSHIP COMPANY WHICH WAS OPERATING THE SHIP FOR THE GOVERNMENT UNDER
THE STANDARD FORM OF GENERAL AGENT SERVICE AGREEMENT WITH THE WAR
SHIPPING ADMINISTRATION.  THE SUPREME COURT OF OREGON REVERSED.  176
ORE.  662, 158 P.2D 275.  THIS COURT GRANTED CERTIORARI.  327 U.S.
771.  REVERSED, P. 734. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES BY VIRTUE OF THE FACT THAT DURING MOST OF THE SECOND
WORLD WAR SUBSTANTIALLY OUR ENTIRE MERCHANT MARINE BECAME PART OF A
SINGLE VAST SHIPPING POOL, SAID TO HAVE BEEN THE LARGEST IN HISTORY,
FN1  OPERATED AND CONTROLLED BY THE UNITED STATES THROUGH THE WAR
SHIPPING ADMINISTRATION.  FN2  SO HUGE AN ENTERPRISE NECESSARILY
COMPREHENDED MANY INTRICATE AND COMPLEX READJUSTMENTS FROM NORMAL,
PEACETIME SHIPPING ARRANGEMENTS.  THESE WERE EXECUTED LARGELY THROUGH
BROAD POWERS CONFERRED UPON THE ADMINISTRATION.  FN3 

EVENTUALLY ALMOST EVERY VESSEL NOT IMMEDIATELY BELONGING TO NAVAL AND
OTHER ARMED FORCES CAME UNDER THE ADMINISTRATION'S AUTHORITY. 
OTHERWISE THAN BY DIRECT CONSTRUCTION AND OWNERSHIP, THIS WAS
ACCOMPLISHED BY TRANSFER FROM PRIVATE SHIPPING INTERESTS TO THE
ADMINISTRATION, PURSUANT TO REQUISITION OR OTHER ARRANGEMENT. 

INEVITABLY THE INDUSTRY'S TRANSFER FROM PRIVATE TO PUBLIC CONTROL WAS
ACHIEVED TO A VERY GREAT EXTENT BY MAKING USE NOT ONLY OF PRIVATE
PROPERTY BUT ALSO OF PRIVATE SHIPPING MEN, BOTH IN MANAGEMENT AND FOR
LABOR.  FN4  THIS TOO WAS BROUGHT ABOUT IN VARIOUS WAYS, BUT CHIEFLY
TWO FOR PRESENTLY PERTINENT PURPOSES.  ONE WAS BY TIME-CHARTERING OF
PRIVATELY OWNED VESSELS WITH CREW, IN WHICH CASE THE MEN REMAINED THE
PRIVATE EMPLOYEES OF THE VESSEL'S OWNER.  THE OTHER WAS BY EITHER
BAREBOAT-CHARTER OR OUTRIGHT OWNERSHIP BY THE ADMINISTRATION.  IN SUCH
INSTANCES, AS WILL APPEAR, MASTER AND SEAMEN BECAME TECHNICALLY
EMPLOYEES OF THE UNITED STATES.  FN5 

THE DIFFERENCE IS IMPORTANT FOR THE ISSUES AND THE DECISION IN THIS
CASE.  THEY CONCERN THE BROAD QUESTION WHETHER SEAMEN EMPLOYED IN THE
LATTER CAPACITY, AS MEMBERS OF THE UNITED STATES MERCHANT MARINE,  FN6
LOST DURING THE PERIOD OF SUCH SERVICE PRIOR TO MARCH 24, 1943,  FN7
SOME OF THE AMERICAN SEAMEN'S ORDINARY AND USUAL PROTECTIONS IN RESPECT
TO PERSONAL INJURY OR DEATH INCURRED IN THE COURSE OF EMPLOYMENT, OR
RETAINED THOSE RIGHTS.  SPECIFICALLY, IN THIS CASE THE QUESTION IS
WHETHER PETITIONER HUST RETAINED THE SEAMAN'S USUAL RIGHT TO JURY TRIAL
IN A SUIT AGAINST THE RESPONDENT, PURSUANT TO THE PROVISIONS OF THE
JONES ACT,  FN8  FOR PERSONAL INJURIES INCURRED IN THE COURSE OF HIS
EMPLOYMENT AS A SEAMAN ON THE S. S. MARK HANNA.  THIS WAS A GOVERNMENT
OWNED LIBERTY SHIP OPERATED UNDER A SO-CALLED GENERAL AGENT SERVICE
AGREEMENT BETWEEN RESPONDENT AND THE ADMINISTRATION. 

THE MARK HANNA HAD BEEN TORPEDOED IN THE ATLANTIC OCEAN ON MARCH 9,
1943.  EARLY ON THE MORNING OF THE 17TH, THE DAY OF HUST'S INJURY, THE
VESSEL WAS BEING TOWED TO PORT.  HE WAS ORDERED TO GO TO THE SHIP'S
LOCKER IN THE FOREPEAK OF THE SECOND DECK AND BRING OUT A MOORING LINE
TO BE USED IN TOWING.  THE ELECTRIC BULB LIGHTING THE LOCKER ROOM HAD
BURNED OUT AND THE ROOM WAS DARK.  WHILE CROSSING IT TO GET THE LINE,
HUST FELL THROUGH AN UNGUARDED HATCH ABOUT TWELVE FEET TO THE THIRD
DECK.  IN LANDING HE STRUCK A STEEL MANHOLE COVER PROJECTING SOME SIX
INCHES ABOVE THE DECK, AND INCURRED THE INJURIES FOR WHICH THIS SUIT
WAS BROUGHT ON SEPTEMBER 24, 1943, IN THE CIRCUIT COURT FOR THE COUNTY
OF MULTNOMAH, STATE OF OREGON. 

THE COMPLAINT ALLEGED THAT HUST WAS RESPONDENT'S EMPLOYEE, WAS
INJURED THROUGH ITS NEGLIGENCE, AND THAT THE SUIT WAS BROUGHT PURSUANT
TO SEC. 33 OF THE MERCHANT MARINE ACT OF 1920.  TRIAL BEFORE A JURY
BROUGHT A VERDICT AND JUDGMENT FOR HUST.  ON APPEAL TO THE SUPREME
COURT OF OREGON THE JUDGMENT WAS REVERSED AND AN ORDER WAS ENTERED FOR
THE CAUSE TO BE REMANDED, WITH DIRECTIONS TO ENTER JUDGMENT FOR THE
RESPONDENT NOTWITHSTANDING THE VERDICT.  THE SUPREME COURT HELD THAT,
AS A MATTER OF LAW,  FN9  PETITIONER WAS AN EMPLOYEE OF THE UNITED
STATES, NOT OF RESPONDENT, AND THEREFORE HE WAS NOT ENTITLED TO RECOVER
FROM IT UNDER THE JONES ACT FOR THE INJURIES ALLEGED AND PROVED.  176
ORE.  662, 158 P.2D 275.  THE IMPORTANCE OF THE QUESTION FOR THE
ADMINISTRATION OF THE ACT IN APPLICATION TO PERSONS SITUATED SIMILARLY
TO THE PETITIONER CAUSED US TO GRANT CERTIORARI IN ORDER TO REVIEW THIS
RULING.  327 U.S. 771. 

THE SUPREME COURT OF OREGON CONSIDERED THAT THE CONTROLLING QUESTION
WAS WHETHER HUST WAS RESPONDENT'S EMPLOYEE WHEN THE INJURIES WERE
INCURRED; AND THAT "IT MUST BE ASSUMED  ...  THAT THE CASE IS GOVERNED
BY THE RULE OF THE COMMON LAW" TO DETERMINE THIS QUESTION AND THUS THE
OUTCOME OF THE CASE.  ACCORDINGLY IT EXAMINED WITH GREAT CARE THE
ARRANGEMENTS WHICH HAD BEEN MADE BETWEEN RESPONDENT AND THE GOVERNMENT
FOR OPERATION OF THE MARK HANNA, WITH SPECIAL REFERENCE TO THE
PROVISIONS OF THE GENERAL SERVICE AGREEMENT  FN10  TO WHICH THE
ADMINISTRATION AND RESPONDENT WERE PARTIES.  FROM THIS EXAMINATION THE
COURT CONCLUDED THAT RESPONDENT WAS AN AGENT OF THE ADMINISTRATION FOR
ONLY LIMITED PURPOSES, NOT INCLUDING CONTROL, AUTHORITY OR
PRINCIPALSHIP OF THE MASTER AND CREW OR RESPONSIBILITY FOR NEGLIGENT
OCCURRENCES TAKING PLACE AT SEA AND NOT ATTRIBUTABLE TO THE MANNER OF
DISCHARGING ANY DUTY OF RESPONDENT WHILE THE VESSEL WAS IN PORT.  FN11
HENCE, APPLYING THE COMMON-LAW "CONTROL" TEST,  FN12  THE COURT CAME TO
ITS CONCLUSION THAT HUST WAS NOT RESPONDENT'S EMPLOYEE AS THAT RELATION
IS CONTEMPLATED IN THE JONES ACT.  THE COURT ALSO FOUND THAT THE SO
CALLED CLARIFICATION ACT  FN13  IN NO WAY GAVE SUPPORT TO HIS VIEW THAT
HE COULD RECOVER FROM RESPONDENT UNDER THE JONES ACT.  FN14 

IT IS AROUND THESE QUESTIONS AND THE EFFECT FOR DETERMINING THEM OF
VARIOUS AUTHORITIES, PARTICULARLY BRADY V. ROOSEVELT S.S. CO., 317 U.S.
575, THAT THE CONTROVERSY HAS REVOLVED IN THE STATE COURTS AND HERE. 
IN CONNECTION WITH THE BEARING OF THE CLARIFICATION ACT, IT IS OF SOME
IMPORTANCE TO NOTE THAT HUST'S INJURIES WERE SUSTAINED ONLY A FEW DAYS
BEFORE THAT ACT BECAME EFFECTIVE ON MARCH 24, 1943, AND THAT IT
CONTAINED FEATURES RELATING TO INJURIES LIKE HUST'S INCURRED BETWEEN
THAT DATE AND OCTOBER 1, 1941, RETROACTIVE IN CHARACTER.  FN15  IT IS,
IN PART, CONCERNING THOSE FEATURES THAT ARGUMENT HAS BEEN MOST
INTENSE. 

I. 

AT THE OUTSET IT IS IMPORTANT TO STATE JUST WHAT THE DECISION MAY
MEAN IN CONSEQUENCES FOR INJURED SEAMEN AND THEIR DEPENDENTS AS WELL AS
FOR THE GOVERNMENT. 

THE JONES ACT WAS THE CULMINATION OF A LONG STRUGGLE BY SEAMEN TO
SECURE MORE ADEQUATE RELIEF IN CASE OF INJURY OR DEATH, INCURRED IN THE
COURSE OF EMPLOYMENT, THAN HAD BEEN AFFORDED BY PREEXISTING LAW.  FN16
WE DO NOT STOP TO REVIEW THAT HISTORY.  BUT THE HISTORY OF THE JONES
ACT SINCE ITS ENACTMENT HAS BEEN DISTINCTIVE IN THAT, AT ALL SUBSEQUENT
TIMES, SEAMEN HAVE OPPOSED SUBSTITUTING FOR ITS PROVISIONS OTHER FORMS
OF RELIEF WHICH HAVE BEEN TENDERED AS BEING MORE IN ACCORD WITH MODERN
TRENDS OF LEGISLATION FOR THESE MATTERS.  FN17  WISELY OR UNWISELY,
THEY HAVE STEADFASTLY PREFERRED THE TRADITIONAL REMEDY OF JURY TRIAL
FOR NEGLIGENCE TO WORKMEN'S COMPENSATION BASED ON LIABILITY WITHOUT
FAULT.  BY 1942, WHEN THE GOVERNMENT TOOK OVER THE MERCHANT MARINE,
THAT REMEDY HAD BECOME A THOROUGHLY ESTABLISHED INCIDENT OF THE
SEAMAN'S CONTRACT OF EMPLOYMENT, AS MUCH SO AS THE HISTORIC RELIEF
AFFORDED BY THE GENERAL MARITIME LAW FOR MAINTENANCE AND CURE OR
MARITIME TORT.  FN18  IT WAS ONE WHICH ATTACHED TO EVERY SEAMAN'S
CONTRACT. 

MOREOVER, BY SEC. 1 OF THE SUITS IN ADMIRALTY ACT, LIKE THE JONES ACT
ENACTED IN 1920(41 STAT. 525, 46 U.S.C. SEC. 741), ARREST AND SEIZURE
UNDER JUDICIAL PROCESS WERE FORBIDDEN OF VESSELS OWNED BY THE UNITED
STATES OR A GOVERNMENTAL CORPORATION "OR OPERATED BY OR FOR THE UNITED
STATES OR SUCH CORPORATION"; AND BY SEC. 2, IN PLACE OF THAT RIGHT OF
SEIZURE, "A LIBEL IN PERSONAM MAY BE BROUGHT AGAINST THE UNITED STATES
OR AGAINST SUCH (GOVERNMENTAL) CORPORATION" IN CASES WHERE "IF SUCH
VESSEL WERE PRIVATELY OWNED OR OPERATED  ...  A PROCEEDING IN ADMIRALTY
COULD BE MAINTAINED  ..." 

BY THE DECISION IN JOHNSON V. FLEET CORP., 280 U.S. 320, IT WAS HELD
THAT THE REMEDIES GIVEN BY THE SUITS IN ADMIRALTY ACT "ARE EXCLUSIVE IN
ALL CASES WHERE A LIBEL MIGHT BE FILED UNDER IT," THAT IS, ON "MARITIME
CAUSES OF ACTION COVERED BY THE ACT."  ID. AT 327. 

THE JOHNSON RULING WAS MADE BROADLY TO COVER MARITIME CAUSES OF
ACTION WHICH COULD BE ASSERTED IN ADMIRALTY AGAINST THE UNITED STATES
OR GOVERNMENTAL CORPORATIONS AND ALSO AGAINST PRIVATE OPERATORS FOR THE
GOVERNMENT.  FN19  FLEET CORP. V. LUSTGARTEN, 280 U.S. 320, A COMPANION
CASE.  BUT IN BRADY V. ROOSEVELT S.S. CO., SUPRA, THE JOHNSON
(LUSTGARTEN) RULING WAS MODIFIED, IN ACCORDANCE WITH THE OBVIOUS SCOPE
AND PURPOSE OF THE ACT, TO RESTRICT THE EXCLUSIVENESS OF THE STATUTORY
REMEDY PROVIDED TO CAUSES ASSERTED AGAINST THE GOVERNMENT OR
GOVERNMENTAL CORPORATIONS.  THE ACT, IT WAS HELD IN EFFECT, DID NOT
AFFECT OR EXCLUDE THE SEAMAN'S RIGHTS, IN ADMIRALTY OR OTHERWISE,
AGAINST THE PRIVATE OPERATOR.  IT MERELY SUBSTITUTED ONE REMEDY AGAINST
THE GOVERNMENT FOR WHAT WAS, IN SUBSTANCE THOUGH NOT TECHNICALLY,
ANOTHER AGAINST IT, THAT IS, THE LIBEL IN PERSONAM PROVIDED BY SEC. 2
FOR THE LIBEL IN REM TAKEN AWAY BY SEC. 1.  FN20 

PRIOR TO 1942, THEREFORE, THE PRIVATELY EMPLOYED SEAMAN HAD NOT ONLY
HIS REMEDY UNDER THE JONES ACT, BUT ALSO HIS RIGHTS UNDER THE GENERAL
MARITIME LAW ENFORCEABLE IN ADMIRALTY OR BY VARIOUS FORMS OF
PROCEEDINGS ELSEWHERE.  BUT EVEN MORE FAVORABLY SITUATED, UNDER THE
BRADY RULING, WAS THE SEAMAN EMPLOYED ON VESSELS OWNED BY THE UNITED
STATES AND OPERATED FOR IT BY PRIVATE COMPANIES UNDER ARRANGEMENTS WITH
THE FLEET CORPORATION OR THE MARITIME COMMISSION.  FN21  HE HAD HIS
EXCLUSIVE REMEDY AGAINST THE GOVERNMENT OR THE APPROPRIATE GOVERNMENTAL
CORPORATION, UNDER THE SUITS IN ADMIRALTY ACT, FOR ALL CAUSES OF ACTION
WHICH COULD BE MAINTAINED IN ADMIRALTY IF THE VESSEL ON WHICH HE WAS
EMPLOYED HAD BEEN PRIVATELY OWNED OR OPERATED; AND, MOREOVER, UNDER THE
BRADY RULING HE RETAINED HIS RIGHTS UNDER MARITIME LAW AGAINST THE
PRIVATE COMPANY OPERATING THE VESSEL AS AGENT FOR THE GOVERNMENT.  FN22
ALTHOUGH NEVER SPECIFICALLY DECIDED HERE, THIS WAS HELD IN CARROLL V.
UNITED STATES, 133 F.2D 690, TO INCLUDE NOT ONLY GENERAL MARITIME
RIGHTS SUCH AS THE BRADY CASE INVOLVED, BUT ALSO RECOVERY UNDER THE
JONES ACT.  THE CARROLL CASE WAS DECIDED FLATLY ON AUTHORITY OF THE
BRADY DECISION AND THE RESULT WAS FULLY JUSTIFIED BOTH BY ITS RULING
AND BY THE TERMS OF THE SUITS IN ADMIRALTY ACT.  FN23 

NOW IT IS ARGUED THAT THIS FAVORED POSITION WAS ALTOGETHER INVERTED
WHEN THE GOVERNMENT TOOK OVER CONTROL OF THE ENTIRE MERCHANT MARINE
UNDER ITS WAR POWERS IN 1942.  FOR IT IS MAINTAINED AND THE OREGON
SUPREME COURT HAS HELD, IN EFFECT, THAT THIS TRANSFER STRIPPED SEAMEN
OF MANY, IF NOT ALL, OF THEIR PROTECTIONS, INCLUDING THE REMEDY UNDER
THE JONES ACT, FOR THE DURATION OF THE WAR AND SIX MONTHS.  FN24  TRUE,
THE DECISION APPLIES SPECIFICALLY ONLY TO JONES ACT PROCEEDINGS.  BUT
IT IS EQUALLY APPLICABLE TO ALL OTHER MARITIME RIGHTS AND REMEDIES
DEPENDENT UPON EXISTENCE OF THE "EMPLOYER-EMPLOYEE" RELATION, SUCH AS
THE RIGHT TO MAINTENANCE AND CURE, ETC.  WHENEVER, IN SUCH CASES, IT
MIGHT BE FOUND THAT TECHNICALLY THE GOVERNMENT IS THE EMPLOYER, THE
NECESSARY RESULT WOULD BE TO REMIT THE SEAMAN TO THE "EXCLUSIVE" RIGHT
TO SUE UNDER THE PROCEDURE PROVIDED BY THE SUITS IN ADMIRALTY ACT.  IN
SHORT THE COMBINED EFFECTS OF THAT ACT AND OF THE TRANSFER OF AMERICAN
SHIPPING TO GOVERNMENTAL CONTROL, FOR THE TEMPORARY PERIOD OF THE WAR,
WOULD BE TO CONFINE MERCHANT SEAMEN ALTOGETHER TO SUITS UNDER THE ACT,
EXCEPT IN THE CASES OF MEN EMPLOYED ON VESSELS UNDER TIME-CHARTER  FN25
AND POSSIBLY AS TO INJURIES INCURRED BY OTHERS THROUGH THE GENERAL
OPERATING AGENT'S FAILURE TO DISCHARGE SOME SPECIFIC DUTY IMPOSED BY
THE GENERAL SERVICE AGREEMENT WHILE THE VESSEL IS IN PORT.  FN26  WITH
THOSE POSSIBLE EXCEPTIONS THE VARIOUS RIGHTS OF SEAMEN, ENFORCEABLE BY
VARIOUS PROCEEDINGS IN ADMIRALTY AND AT LAW, IN STATE AND FEDERAL
COURTS, ARE SWEPT INTO ONE HOPPER, THE SUIT AGAINST THE GOVERNMENT OR
GOVERNMENTAL CORPORATION UNDER THE SUITS IN ADMIRALTY ACT. 

SUCH A RESULT QUITE OBVIOUSLY WOULD RESURRECT THE LUSTGARTEN
(JOHNSON) RULING TO OVERRIDE, IN PRACTICAL EFFECT, THAT OF THE BRADY
DECISION FOR THE DURATION OF THE WAR.  NOR WOULD ONLY THE FORUM AND THE
PROCEDURE TO BE FOLLOWED BE AFFECTED.  FOR, AS THE BRADY OPINION SAID
OF THE LUSTGARTEN RULING, THE SHORTER LIMITATIONS PERIOD OF TWO YEARS
PROVIDED BY THE SUITS IN ADMIRALTY ACT WOULD APPLY,  FN27  WITH THE
UNDOUBTED EFFECT IN MANY CASES OF BARRING RECOVERY ALTOGETHER.  WITH A
VARIETY OF RIGHTS ESTABLISHED IN LAW AND CUSTOM, THE SUDDEN SHIFT OF
ALL RELIEF, EXCEPT IN THE COMPARATIVELY INFREQUENT INSTANCES MENTIONED
ABOVE, TO THE SINGLE FORUM AND REMEDY COULD NOT BUT BRING WIDESPREAD
SURPRISE AND RESULTING FAILURE OF SUBSTANTIVE RIGHTS.  NOT ONLY WOULD
WRONG REMEDIES BE ASSERTED ONLY TO DISCOVER THE FACT TOO LATE, AS IN
THIS CASE AND OTHERS IN RELATION TO WHICH BRIEFS AMICUS CURIAE HAVE
BEEN FILED.  FN28  BUT AT LEAST SOME CLAIMANTS, PERHAPS MANY, RELYING
UPON THE LONGER PERIOD INCORPORATED IN THE BODY OF OUR LAW, WOULD DELAY
INSTITUTING SUIT BEYOND THE SHORTER ONE ALLOWED BY THE TEMPORARY
EXPANSION OF THE SUITS IN ADMIRALTY ACT TO COVER WAR CONDITIONS, AND
THUS BE TRAPPED INTO LOSS OF ALL REMEDY AT A TIME WHEN BROAD RELIEF WAS
NEEDED MORE THAN EVER. 

THERE WOULD BE OTHER UNCERTAINTIES AND COMPLEXITIES.  WERE
RESPONDENT'S POSITION TO PREVAIL, A SEAMAN WOULD BE FORCED TO PREDICT,
BEFORE INSTITUTING HIS SUIT, WHETHER AT THE END OF THE LITIGATION IT
WOULD TURN OUT THAT THE CAUSE OF ACTION ALLEGED SHOULD HAVE BEEN
ASSERTED AGAINST THE GOVERNMENT OR AGAINST THE PRIVATE OPERATOR.  THUS,
IT MIGHT OFTEN BE DIFFICULT TO FORETELL WHETHER THE NEGLIGENCE ALLEGED
TO HAVE CAUSED THE INJURY WOULD BE ATTRIBUTED ULTIMATELY, AS THE PROOF
SHOULD TURN OUT, TO SOME ACT OF THE MASTER OR A MEMBER OF THE CREW, IN
WHICH EVENT ONLY THE GOVERNMENT, NOT THE OPERATING AGENT, WOULD BE
LIABLE, OR TO SOME DEFAULT OF THAT AGENT IN DISCHARGING ITS SPECIALLY
LIMITED BUT VARIOUS DUTIES, IN WHICH CASE IT AND AT LEAST IN SOME
INSTANCES NOT THE GOVERNMENT  FN29  WOULD BE RESPONSIBLE.  THE ONLY
SAFE COURSE FOR A CLAIMANT IN DOUBT - AND OBVIOUSLY MANY SUCH
SITUATIONS MIGHT ARISE - WOULD BE TO FILE TWO SUITS, ONE A LIBEL IN
PERSONAM AGAINST THE GOVERNMENT, THE OTHER AN APPROPRIATE PROCEEDING
AGAINST THE AGENT; AND POSSIBLY EVEN SO THE RISK MIGHT REMAIN THAT THE
DIVISION OF REMEDIES WOULD RESULT IN LOSS OF RELIEF ALTOGETHER. 

IN ADDITION IT SHOULD BE MENTIONED THAT UNDER THE PRACTICE OF THE
INDUSTRY SEAMEN FREQUENTLY WOULD MOVE BACK AND FORTH BETWEEN VESSELS OF
THE SAME OWNER MOORED SIDE BY SIDE, FROM SHIPS UNDER TIME-CHARTER TO
OTHERS UNDER BAREBOAT-CHARTER TO THE ADMINISTRATION.  WITH EACH SUCH
SHIFT, UNDER RESPONDENT'S VIEW OF THE LAW, RESPONSIBILITY FOR THE
SEAMAN'S INJURIES WOULD SHIFT FROM THE AGENT TO THE GOVERNMENT OR THE
OTHER WAY AROUND, WITH CORRESPONDING SHUTTLING OF REMEDY.  THE
CONFUSION THUS RESULTING WAS ONE REASON WHICH LED TO ADOPTION OF THE
CLARIFICATION ACT.  S. REP. NO. 62, 78TH CONG., 1ST SESS., 5; H. REP.
NO. 2572, 77TH CONG., 2D SESS., 9, QUOTED INFRA AT NOTE 32. 

THESE ARE AT LEAST SOME OF THE UNCERTAINTIES AND COMPLEXITIES WHICH
WOULD RESULT FROM ACCEPTANCE OF RESPONDENT'S VIEW.  IT IS HARDLY TOO
MUCH TO SAY THAT SUBSTANTIVE RIGHTS WOULD BE LOST IN AN INCALCULABLE
NUMBER OF CASES BY THE DISRUPTION SUCH AN ACCEPTANCE WOULD BRING FOR
RIGHTS LONG SETTLED.  THE RESULT ALSO WOULD BE TO THROW LARGE
ADDITIONAL NUMBERS INTO CONFUSION WHICH IN THE END COULD ONLY DEFEAT
MANY OF THEM. 

   II. 

WE MAY ASSUME THAT CONGRESS COULD AUTHORIZE SO VAST A DISTURBANCE TO
SETTLED RIGHTS BY CLEAR AND UNEQUIVOCAL COMMAND.  IT IS NOT PERMISSIBLE
TO FIND ONE BY IMPLICATION.  BRADY V. ROOSEVELT S.S. CO., SUPRA, AT
580.  HERE THE DISRUPTION, IF IT HAS OCCURRED, HAS DONE SO ONLY AS AN
IMPLIED RESULT OF THE CONJUNCTION OF THE SUITS IN ADMIRALTY ACT'S
PROVISIONS WITH THE GOVERNMENT'S EMERGENCY ACTION IN TAKING OVER THE
SHIPPING INDUSTRY FOR WAR PURPOSES. 

APART FROM RESURRECTING THE LUSTGARTEN RULING IN THE FACE OF THE
BRADY REVERSAL, THIS RESULT COULD BE REACHED ONLY BY FINDING THAT
CONGRESS, OR CONGRESS AND THE PRESIDENT, INTENDED TO BRING IT ABOUT BY
THE EXERCISE OF THEIR POWERS TO BRING THE INDUSTRY UNDER GOVERNMENTAL
CONTROL.  NO OTHER LEGISLATION, OR EXECUTIVE ACTION, REMOTELY COULD BE
THOUGHT TO HAVE THAT EFFECT. 

CERTAINLY THIS WAS NOT THE PURPOSE OF THE SUITS IN ADMIRALTY ACT.  AS
WE HAVE SAID, ITS EFFECT WAS TO EXPAND, NOT TO RESTRICT, THE SEAMAN'S
RIGHTS, AS BRADY DECIDED.  MOREOVER, IT WAS NOT AN EMERGENCY MEASURE,
ADOPTED TO PROMOTE THE WAR EFFORT.  IT WAS NORMAL, PEACETIME
LEGISLATION, FITTING INTO A SETTLED SCHEME OF PRIVATE RIGHTS.  THERE
CAN BE NO INFERENCE FROM ITS TERMS OR HISTORY THAT IT WAS INTENDED TO
DISPLACE THAT SCHEME ENTIRELY OR IN LARGE PART, IN NORMAL TIMES OR IN
THE EMERGENCY OF WAR.  TO GIVE ITS LETTER THIS EFFECT, BECAUSE THE WAR
BROUGHT ABOUT THE TEMPORARY TRANSFER OF THE INDUSTRY TO GOVERNMENTAL
CONTROL, WOULD BE TO PERVERT ITS WHOLE PURPOSE. 

WE ARE TOLD, HOWEVER, THAT THE JONES ACT APPLIES BY ITS SPECIFIC
TERMS ONLY IN THE PRESENCE OF THE RELATION OF EMPLOYER TO EMPLOYEE, TO
GIVE THE LATTER A REMEDY FOR THE EMPLOYER'S NEGLIGENCE; AND, SINCE THE
EFFECT OF THE GENERAL SERVICE AGREEMENT WAS TO MAKE THE SEAMAN
TECHNICALLY AN EMPLOYEE OF THE UNITED STATES, THE NECESSARY RESULT WAS
TO REMIT HIM EXCLUSIVELY TO THE SUITS IN ADMIRALTY ACT FOR REMEDY TO
ENFORCE THE SUBSTANTIVE RIGHT GIVEN BY THE JONES ACT. 

THE PREMISE IS NOT CONTROLLING.  WE MAY ACCEPT THE OREGON COURT'S
CONCLUSION THAT TECHNICALLY THE AGREEMENT MADE HUST AN EMPLOYEE OF THE
UNITED STATES FOR PURPOSES OF ULTIMATE CONTROL IN THE PERFORMANCE OF
HIS WORK, ALTHOUGH THE METICULOUS DIFFERENCES IN THIS RESPECT BETWEEN
ITS TERMS AND THE CORRESPONDING PROVISIONS OF THE MARITIME COMMISSION'S
STANDARD CONTRACT MAKE IT HARDLY MORE THAN DUBIOUS THAT RESPONDENT DID
NOT STAND PRO HAC VICE AS EMPLOYER WITH THE GOVERNMENT.  FN30 BUT IT
DOES NOT FOLLOW FROM THE FACT THAT HUST WAS TECHNICALLY THE
GOVERNMENT'S EMPLOYEE THAT HE LOST ALL REMEDIES AGAINST THE OPERATING
"AGENT" FOR SUCH INJURIES AS HE INCURRED.  THIS CASE, LIKE LABOR BOARD
V. HEARST PUBLICATIONS, 322 U.S. 111, INVOLVES SOMETHING MORE THAN MERE
APPLICATION TO THE FACTS OF THE COMMON-LAW TEST FOR ASCERTAINING THE
VICARIOUS RESPONSIBILITIES OF A PRIVATE EMPLOYER FOR TORTIOUS CONDUCT
OF AN EMPLOYEE. 

HERE INDEED IS THE RESPONDENT'S FALLACY, FOR IT ASSUMES THE CASE
WOULD BE CONTROLLED BY THE COMMON-LAW RULES OF PRIVATE AGENCY.  FN31
IT IS TRUE THESE ARE APPLIED IN THE NORMAL EVERYDAY APPLICATIONS OF THE
JONES ACT.  BUT IN THOSE SITUATIONS THIS IS DONE TO DETERMINE WHO COMES
WITHIN, WHO WITHOUT, THE COVERED CLASS IN THE ACT'S NORMAL OPERATION,
NOT TO EXCLUDE THAT CLASS ENTIRELY OR IN LARGE PART.  HERE THE
APPLICATION IS MADE TO DEFEAT THE ACT FOR ALL EXCEPT THE SMALLER NUMBER
OF MEN WHOM IT WAS ENACTED TO PROTECT.  NO SUCH APPLICATION OF THE
COMMON-LAW "CONTROL" TEST CAN BE JUSTIFIED IN THIS TEMPORARY SITUATION
UNLESS BY INVERSION OF THAT WISDOM WHICH TEACHES THAT "THE LETTER
KILLETH, BUT THE SPIRIT GIVETH LIFE." 

NOT ALWAYS DOES THE LAW PROCEED IN DISREGARD OF THAT TRUTH.  THERE
WAS NOTHING TO PREVENT CONGRESS OR THE PRESIDENT, ACTING IN EXERCISE OF
THEIR AUTHORITY, FROM SHIFTING THE TECHNICAL RELATION OF EMPLOYER AND
EMPLOYEE FROM THE GENERAL AGENT TO THE GOVERNMENT, FOR PURPOSES
RELEVANT TO ULTIMATE WARTIME CONTROL OF MARINE EMPLOYEES, WITHOUT AT
THE SAME TIME DISRUPTING THEIR NORMALLY APPLICABLE RIGHTS AND
REMEDIES.  ON THE CONTRARY, THERE WAS EVERY REASON WHY THE CHANGE
SHOULD BE MADE WITHOUT THAT CONSEQUENCE.  NO PRESUMPTION CAN BE
INDULGED THAT ANY PURPOSE EXISTED TO TAKE AWAY THOSE PROTECTIONS WHEN
THEY WERE NEEDED MORE THAN EVER, NOR ANY THAT SO GREAT A DISRUPTION
WOULD BE MADE FOR ONLY THE EMERGENCY OF THE WAR PERIOD.  NOTHING IN THE
JONES ACT, THE SUITS IN ADMIRALTY ACT, OR IN THE WAR POWERS ACT OF 1941
AND THE EXECUTIVE ORDERS BY WHICH THE INDUSTRY'S TRANSFER WAS
ACCOMPLISHED COMPELS SUCH A CONCLUSION. 

                                 III. 

CONFIRMATION OF THIS IS FURNISHED BY THE LEGISLATIVE HISTORY OF THE
CLARIFICATION ACT AND BY ITS RETROACTIVE PROVISIONS RELATIVE TO THE
SEAMAN'S RIGHTS, INCLUDING REMEDIES ON ACCOUNT OF PERSONAL INJURY AND
DEATH.  INDEED ONE PRIMARY OCCASION FOR ENACTING THE CLARIFICATION ACT
WAS TO SAVE THE SEAMAN'S RIGHTS IN THESE RESPECTS RATHER THAN TO TAKE
THEM AWAY.  FN32 

IT IS TRUE THERE WAS GREAT CONCERN FOR FEAR THAT THOSE RIGHTS HAD
BEEN LOST OR SERIOUSLY ATTENUATED BY THE TRANSFER TO GOVERNMENTAL
CONTROL, PARTICULARLY DURING THE EARLIER STAGES OF CONGRESSIONAL
CONSIDERATION WHEN THE BRADY DECISION HAD NOT REMOVED THE LARGE CLOUD
CAST OVER THEM BY THE LUSTGARTEN RULING.  NOR DID BRADY REMOVE ALL OF
THE DOUBT IN THE MINDS OF THOSE SPONSORING THE BILL, AS THE COMMITTEE
REPORTS DURING THE LATER STAGES OF CONSIDERATION DISCLOSE.  FN33 HENCE,
TO MAKE CERTAIN THAT THE SEAMEN WOULD HAVE AT LEAST THE REMEDY PROVIDED
BY THE SUITS IN ADMIRALTY ACT FOR ENFORCEMENT OF THEIR SUBSTANTIVE
RIGHTS, AS WELL AS TO TAKE CARE OF OTHER IMPORTANT MATTERS NOT
AFFECTING THEM,  FN34  THE BILL PROCEEDED TO ENACTMENT. 

WE NEED NOT DETERMINE IN THIS CASE WHETHER PROSPECTIVELY THE
CLARIFICATION ACT AFFECTED RIGHTS OF THE SEAMAN AGAINST THE OPERATING
AGENT AND OTHERS, OR SIMPLY MADE SURE THAT HIS RIGHTS WERE ENFORCEABLE
AGAINST THE GOVERNMENT.  WE MAKE NO SUGGESTION IN THAT RESPECT.  FOR
THIS CASE, ON THE FACTS, IS NOT GOVERNED BY THE STATUTE'S PROSPECTIVE
OPERATION.  FN35  IT MAY BE NOTED HOWEVER THAT, IF RESPONDENT'S
CONTENTION WERE THE LAW, THE PROVISIONS OF SEC. 1, AUTHORIZING
ENFORCEMENT OF THE SEAMAN'S SUBSTANTIVE RIGHTS FOR INJURY, MAINTENANCE
AND CURE, ETC., BY THE SUITS IN ADMIRALTY ACT REMEDY, WOULD DO NO MORE
THAN REAFFIRM WHAT THE LATTER ACT HAD PROVIDED ALL ALONG. 

THE CLARIFICATION ACT, HOWEVER, IS NOT WITHOUT IMPORTANT BEARING FOR
SOLUTION OF THE PROBLEM THIS CASE PRESENTS.  FOR WHATEVER THE EFFECT OF
ITS PROSPECTIVELY OPERATING PROVISIONS UPON THE SEAMAN'S RIGHTS AS
AGAINST OTHERS THAN THE GOVERNMENT, THE BILL IN ITS FINAL FORM
CONTAINED A PROVISION DESIGNED AND EFFECTIVE TO PREVENT THE LOSS OF
SUCH RIGHTS AS PETITIONER NOW ASSERTS. 

TERMS APPLICABLE TO THIS CASE: 

"ANY CLAIM, RIGHT, OR CAUSE OF ACTION OF OR IN RESPECT OF ANY SUCH
SEAMAN ACCRUING ON OR AFTER OCTOBER 1, 1941, AND PRIOR TO THE DATE OF
ENACTMENT OF THIS SECTION MAY BE ENFORCED, AND UPON THE ELECTION OF THE
SEAMAN OR HIS SURVIVING DEPENDENT OR BENEFICIARY, OR HIS LEGAL
REPRESENTATIVE TO DO SO SHALL BE GOVERNED, AS IF THIS SECTION HAD BEEN
IN EFFECT WHEN SUCH CLAIM, RIGHT, OR CAUSE OF ACTION ACCRUED, SUCH
ELECTION TO BE MADE IN ACCORDANCE WITH RULES AND REGULATIONS PRESCRIBED
BY THE ADMINISTRATOR, WAR SHIPPING ADMINISTRATION."  FN36 

ONE OBVIOUS PURPOSE OF THIS PROVISION WAS TO EXTEND RETROACTIVELY TO
THE SEAMAN THE BENEFIT OF THE ASSURED REMEDY AGAINST THE GOVERNMENT
GIVEN BY SEC. 1.  BUT EQUALLY OBVIOUS IS THE INTENT TO SAVE SUCH OTHER
RIGHTS AS THE SEAMAN MAY HAVE HAD AND TO GIVE HIM AN ELECTION BETWEEN
ENFORCING THEM IN THE USUAL MANNER AND ASSERTING THEM IN A SUIT AGAINST
THE UNITED STATES IN THE MANNER PROVIDED BY SEC. 1. 

UNCERTAIN IN SCOPE AS THE EFFECTS OF THE BRADY DECISION WERE REGARDED
TO BE, THEY WERE CLEARLY RECOGNIZED AS HOLDING THAT THE SEAMAN HAD
RIGHTS AGAINST PRIVATE OPERATORS ARISING AFTER THE TRANSFER OF
GOVERNMENTAL CONTROL.  FN37  RESPONDENT'S VIEW OF THE LAW WOULD NULLIFY
THE ELECTION GIVEN.  FOR IN THAT VIEW, EVEN BEFORE THE CLARIFICATION
ACT WAS ADOPTED, THE SEAMAN'S EXCLUSIVE REMEDY FOR INJURIES INCURRED
AFTER THE TRANSFER WAS BY SUIT UNDER THE SUITS IN ADMIRALTY PROCEDURE. 
BUT SEC. 1 EXPRESSLY GIVES ELECTION BETWEEN THAT IDENTICAL REMEDY, AS
CONFERRED BY THE CLARIFICATION ACT, AND PREEXISTING REMEDIES.  IT IS
TOO OBVIOUS TO REQUIRE STATEMENT THAT IF THE SEAMAN'S ONLY REMEDY FOR
INJURIES INCURRED BEFORE THE CLARIFICATION ACT BECAME EFFECTIVE WAS
UNDER THE SUITS IN ADMIRALTY ACT, AS RESPONDENT CONTENDS, THE ELECTION
GIVEN BY SEC. 1 BECOMES NO ELECTION WHATEVER. 

IT IS TRUE THAT CONGRESS DID NOT ENUMERATE THE SPECIFIC RIGHTS WHICH
IT CONSIDERED SEAMEN TO HAVE PRIOR TO THE CLARIFICATION ACT AND AFTER
THE INDUSTRY'S TRANSFER TO GOVERNMENTAL CONTROL.  TO HAVE DONE SO, IN
VIEW OF ITS OWN UNCERTAINTY IN THIS RESPECT, INCLUDING THE EFFECTS OF
THE BRADY DECISION, WOULD HAVE BEEN HAZARDOUS.  THE INTENT IS CLEAR,
NEVERTHELESS, IN THE RETROACTIVE PROVISION TO PRESERVE ALL SUCH RIGHTS
AND REMEDIES AS MAY HAVE REMAINED IN EXISTENCE UNAFFECTED BY THE
TRANSFER.  FOR THE REASONS WE HAVE STATED WE THINK THESE INCLUDED THE
REMEDY PROVIDED BY THE JONES ACT AS WELL AS THE SUBSTANTIVE RIGHT. 

THE MERE FACT THAT THE TERMS OF THE STANDARD AGREEMENT WERE CHANGED
TO OMIT THE PROVISION FOR MANNING THE SHIP AND SUBSTITUTE THE
PROVISIONS RELATING TO EMPLOYEES CONTAINED IN THE GENERAL SERVICE
AGREEMENT WAS NOT, IN THESE CIRCUMSTANCES, ENOUGH TO DEPRIVE SEAMEN OF
THAT REMEDY.  WE DO NOT THINK EITHER CONGRESS OR THE PRESIDENT INTENDED
TO BRING ABOUT SUCH A RESULT BY THE TRANSFER OF THE INDUSTRY TO
TEMPORARY GOVERNMENTAL CONTROL.  IF THIS MADE THEM TECHNICALLY AND
TEMPORARILY EMPLOYEES OF THE UNITED STATES, IT DID NOT SEVER ALTOGETHER
THEIR RELATION TO THE OPERATING AGENT, EITHER FOR PURPOSES OF SECURING
EMPLOYMENT OR FOR OTHER IMPORTANT FUNCTIONS RELATING TO IT.  FN38 NOR
DID IT DISRUPT THE LONG-ESTABLISHED SCHEME OF RIGHTS AND REMEDIES
PROVIDED BY LAW TO SECURE IN VARIOUS WAYS THE SEAMAN'S PERSONAL SAFETY,
EITHER TO DEPRIVE HIM OF THOSE RIGHTS ALTOGETHER  FN39 OR TO DILUTE OR
REDUCE THEM TO THE SINGLE MODE OF ENFORCEMENT BY THE SUITS IN ADMIRALTY
ACT PROCEDURE. 

THIS RESULT IS IN ACCORD WITH THE SPIRIT AND POLICY OF OTHER
PROVISIONS OF THE GENERAL SERVICE AGREEMENT.  THE MANAGING AGENT
SELECTED THE MEN, AND DID SO BY THE USUAL PROCEDURE OF DEALING WITH THE
DULY DESIGNATED COLLECTIVE BARGAINING AGENT.  IT DELIVERED THEM THEIR
PAY, ALTHOUGH FROM FUNDS PROVIDED BY THE GOVERNMENT.  IT WAS AUTHORIZED
SPECIFICALLY TO PAY CLAIMS NOT ONLY FOR WAGES, BUT ALSO FOR PERSONAL
INJURY AND DEATH INCURRED IN THE COURSE OF EMPLOYMENT, FOR MAINTENANCE
AND CURE, ETC.  FN40  IT WAS RESPONSIBLE FOR KEEPING THE SHIP IN REPAIR
AND FOR PROVIDING THE SEAMAN'S SUPPLIES.  FOR ALL OF THESE EXPENDITURES
NOT COVERED BY INSURANCE THE CONTRACT PURPORTED EXPRESSLY TO PROVIDE
FOR INDEMNITY FROM THE GOVERNMENT.  FN41    WITH SO MUCH OF THE FORMER
RELATION THUS RETAINED AND SO LITTLE OF ADDITIONAL RISK THROWN ON THE
OPERATING AGENT, IT WOULD BE INCONSONANT NOT ONLY WITH THE PREVAILING
LAW, BUT ALSO WITH THE AGREEMENT'S SPIRIT AND GENERAL PURPOSE TO
OBSERVE AND KEEP IN EFFECT THE SEAMAN'S ORDINARY AND USUAL RIGHTS
EXCEPT AS EXPRESSLY NULLIFIED, FOR US TO RULE THAT HE WAS DEPRIVED OF
HIS LONG-EXISTING SCHEME OF REMEDIES AND REMITTED EITHER TO NONE OR TO
A DOUBTFUL SINGLE MODE OF RELIEF BY SUIT AGAINST THE GOVERNMENT IN
PERSONAM IN ADMIRALTY.  OUR RESULT ALSO IS IN ACCORD WITH THE GENERAL
POLICY OF THE GOVERNMENT AND OF THE WAR SHIPPING ADMINISTRATION THAT
THOSE RIGHTS SHOULD BE PRESERVED AND MAINTAINED, AS COMPLETELY AS MIGHT
BE POSSIBLE UNDER EXISTING LAW, AGAINST IMPAIRMENT DUE TO THE
TRANSFER.  FN42 

A FURTHER WORD REMAINS TO BE SAID ABOUT THE LEGISLATIVE HISTORY OF
THE CLARIFICATION ACT IN GENERAL.  BOTH PARTIES HAVE RELIED STRONGLY ON
EXCERPTED PORTIONS THOUGHT TO SUPPORT THEIR RESPECTIVE VIEWS.  AS IS
TRUE WITH RESPECT TO ALL SUCH MATERIALS, IT IS POSSIBLE TO EXTRACT
PARTICULAR SEGMENTS FROM THE IMMEDIATE AND TOTAL CONTEXT AND COME OUT
WITH ROAD SIGNS POINTING IN OPPOSITE DIRECTIONS.  WE DO NOT UNDERTAKE
TO ILLUSTRATE THE CONTRAST FROM THE HISTORY IN THIS CASE.  IT CAN BE
SAID, HOWEVER, WITH ASSURANCE THAT, TAKEN AS A WHOLE, THE COMMITTEE
REPORTS IN CONGRESS, TOGETHER WITH APPENDED DOCUMENTS FROM VARIOUS
AFFECTED AGENCIES AND OFFICIALS, ARE AMORPHOUS IN RELATION TO THE
CRUCIAL PROBLEM PRESENTED IN THIS CASE.  ALL OF THEM GIVE EVIDENCE OF
CONCERN THAT RIGHTS MAY HAVE BEEN LOST OR RENDERED UNCERTAIN BY THE
TRANSFER, AND THAT ACTION SHOULD BE TAKEN BY CONGRESS TO PRESERVE THE
SUBSTANTIVE RIGHTS INTACT AND REMEDIAL ONES AT THE LEAST BY EXTENSION
OF THE SUITS IN ADMIRALTY ACT TO COVER THEM. 

THE ENTIRE HISTORY WILL BE READ IN VAIN, HOWEVER, FOR ANY CLEAR
EXPRESSION OF INTENT OR PURPOSE TO TAKE AWAY RIGHTS, SUBSTANTIVE OR
REMEDIAL, OF WHICH THE SEAMAN HAD NOT ALREADY BEEN DEPRIVED, ACTUALLY
OR POSSIBLY, BY VIRTUE OF THE TRANSFER.  WHETHER OR NOT THIS CONSERVING
INTENT WAS MADE EFFECTIVE IN THE PROSPECTIVELY OPERATING PROVISIONS OF
THE ACT, IT IS MADE CLEAR BEYOND QUESTION IN THE RETROACTIVE ONES. 
CONGRESS WAS CONFESSEDLY IN A STATE OF UNCERTAINTY.  BUT, BEING SO, IT
NEVERTHELESS HAD NO PURPOSE TO DESTROY RIGHTS ALREADY ACCRUED AND IN
FORCE, WHETHER SUBSTANTIVE OR REMEDIAL IN CHARACTER.  ITS OBJECT, IN
THIS RESPECT AT THE LEAST, WAS TO PRESERVE THEM AND AT THE SAME TIME TO
PROVIDE AN ADDITIONAL ASSURED REMEDY IN CASE WHAT HAD BEEN PRESERVED
MIGHT TURN OUT FOR SOME REASON TO BE EITHER DOUBTFUL OR LOST. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  AS OF THE DATE OF JAPANESE SURRENDER THE WAR SHIPPING
ADMINISTRATION OPERATED OR OWNED APPROXIMATELY 4300 MERCHANT SHIPS, AS
COMPARED WITH THE 1375 SHIPS AVAILABLE FOR DEEP-SEA SERVICE IN THE
PREWAR AMERICAN MERCHANT MARINE.  THE NUMBER OF MEN NEEDED FOR THE
WARTIME MERCHANT MARINE WAS APPROXIMATELY 220,000, AS COMPARED WITH THE
PREWAR REQUIREMENT OF 55,000 MEN.  FOR FURTHER FIGURES ON THE EXPANSION
OF THE MERCHANT MARINE DURING THE WAR, SEE NOTE (1946) 55 YALE L.J.
584, NOTE 1 AND AUTHORITIES CITED. 

FN2  ON FEBRUARY 7, 1942, THE PRESIDENT, ACTING BY VIRTUE OF THE
AUTHORITY VESTED IN HIM "BY THE CONSTITUTION AND STATUTES OF THE UNITED
STATES, INCLUDING THE FIRST WAR POWERS ACT, 1941" (50 U.S.C. APP. SEC.
601), ESTABLISHED THE WAR SHIPPING ADMINISTRATION.  EXEC. ORDER NO.
9054, FEB. 7, 1942, 7 FED. REG. 837, AS AMENDED BY EXEC. ORDER NO.
9244, SEPT. 16, 1942, 7 FED. REG. 7327. 

FN3  THE EXECUTIVE ORDER PROVIDED THAT THE ADMINISTRATOR OF THE WAR
SHIPPING ADMINISTRATION SHOULD "CONTROL THE OPERATION, PURCHASE,
CHARTER, REQUISITION, AND USE OF ALL OCEAN VESSELS UNDER THE FLAG OR
CONTROL OF THE UNITED STATES  ..."  IT ALSO TRANSFERRED TO THE WAR
SHIPPING ADMINISTRATION "THE FUNCTIONS, DUTIES AND POWERS CONFERRED BY
LAW UPON THE UNITED STATES MARITIME COMMISSION WITH RESPECT TO THE
OPERATION, PURCHASE, CHARTER, INSURANCE, REPAIR, MAINTENANCE, AND
REQUISITION OF VESSELS AND FACILITIES REQUIRED FOR THE OPERATION
THEREOF  ..."  UNDER VARIOUS SPECIFIED STATUTES AND EXECUTIVE ORDERS
"AND UNDER ANY OTHER PROVISIONS OF LAW, INCLUDING EXECUTIVE ORDERS
..." 

THE PARTIES HAVE NOT QUESTIONED THE AUTHORITY OF THE WAR SHIPPING
ADMINISTRATION.  THE FOLLOWING STATUTES AND EXECUTIVE ORDERS RELATE TO
THE AUTHORITY EXERCISED.  SEC. 902(A), MERCHANT MARINE ACT OF 1936, 46
U.S.C. SEC. 1242(A); SEC. 902(E), MERCHANT MARINE ACT OF 1936, AS
AMENDED, 46 U.S.C. SEC. 1242(E); SEC. 207, MERCHANT MARINE ACT OF 1936,
AS AMENDED, 46 U.S.C. SEC. 1117; SECS. 1 AND 2, JOINT RESOLUTION OF
FEBRUARY 6, 1941, 55 STAT. 5; PUBLIC LAW 247, 77TH CONG., 55 STAT. 669,
681; 50 U.S.C. APP. SEC. 1274; EXEC. ORDER NO. 9001, DEC. 27, 1941, 6
FED. REG. 6787, AS AMENDED BY EXEC. ORDER NO. 9296, JAN. 30, 1943, 8
FED. REG. 1429. 

FN4  SEE H. REP. NO. 2572, 77TH CONG., 2D SESS., 8:  "THE
ADMINISTRATOR, IN THE CONDUCT OF HIS DUTIES AND FUNCTIONS, MAKES VERY
EXTENSIVE USE OF THE PRIVATE ORGANIZATIONS INCLUDING THOSE ENGAGED IN
MERCHANT MARINE INSURANCE AND RELATED ACTIVITIES, STEAMSHIP OPERATORS,
STEVEDORE, AND TERMINAL FACILITIES, FREIGHT FORWARDERS, AND FREIGHT
BROKERS AND AGENTS.  SPECIAL SKILL, KNOWLEDGE, AND EXPERIENCE ARE MADE
AVAILABLE IN THIS MANNER FOR USE IN THE INTEGRATED WAR EFFORT.  THIS
DEVELOPMENT CONFIRMS THE WISDOM OF THE CONGRESSIONAL POLICY IN THE
RECENT YEARS OF STIMULATING AND ASSISTING THE DEVELOPMENT OF SUCH
PRIVATE MERCHANT MARINE AND INSURANCE FACILITIES AT SUBSTANTIAL
GOVERNMENT COST.  THE POLICY HAS PERMITTED A QUICK CHANGE-OVER FROM
PEACETIME TO WARTIME OPERATIONS OF THE ENTIRE MERCHANT MARINE WITHOUT
ANY SUBSTANTIAL LOSS OF EFFICIENCY OR IMPAIRMENT OF MORALE." 

FN5  SEE H. REP. NO. 2572, 77TH CONG., 2D SESS., 8-10. 

FN6  THE SEAMEN EMPLOYED ON GOVERNMENT-OPERATED VESSELS WERE, OF
COURSE, IN CIVILIAN, AS OPPOSED TO MILITARY OR NAVAL, SERVICE.  CF.
HEARINGS BEFORE THE COMMITTEE ON THE MERCHANT MARINE AND FISHERIES ON
H.R. 7424, 77TH CONG., 2D SESS., 5-6. 

FN7  THE EFFECTIVE DATE OF THE SO-CALLED CLARIFICATION ACT, 50 U.S.C.
APP. SEC. 1291, DISCUSSED AT VARIOUS POINTS IN THIS OPINION.  RELEVANT
PORTIONS OF THE ACT ARE SET FORTH IN THE TEXT HEREIN AT NOTE 36 AND IN
NOTE 35. 

FN8  SEC. 33, MERCHANT MARINE ACT OF 1920, 46 U.S.C. SEC. 688. 

FN9  ON SPECIAL INTERROGATORY THE JURY HAD FOUND THAT HUST WAS
RESPONDENT'S EMPLOYEE ON THE DATE THE INJURIES WERE INCURRED.  THE
VERDICT WAS FOR $35,000, WHICH THE TRIAL COURT INDICATED IN ITS OPINION
WAS EXCESSIVE IN RELATION TO THE INJURIES INCURRED.  BUT BEING OF
OPINION THAT THE QUESTION OF LIABILITY SHOULD BE SETTLED BY REVIEW, IT
DECLINED TO ORDER REMITTITUR AND DENIED THE MOTION FOR JUDGMENT NON
OBSTANTE VEREDICTO, IN EFFECT RESERVING DECISION ON THE QUESTION OF
REMITTITUR PENDING OUTCOME OF DECISION ON APPEAL. 

FN10  ACTING WITHIN ITS AUTHORITY, CF. NOTE 3, THE ADMINISTRATION
UTILIZED THESE STANDARD CONTRACTS FOR MAKING ARRANGEMENTS WITH PRIVATE
STEAMSHIP COMPANIES FOR THE OPERATION OF MANY OF THESE VESSELS.  46
C.F.R. (CUM. SUPP.) SEC. 306.44.  THEY DID NOT COVER SPECIFIC VESSELS. 
UNDER ARTICLE 1 OF THE AGREEMENT, THE GENERAL AGENT AGREED TO "MANAGE
AND CONDUCT THE BUSINESS OF VESSELS ASSIGNED TO IT BY THE UNITED STATES
FROM TIME TO TIME." 

IN THE INSTANT CASE, THE GENERAL AGENT SERVICE AGREEMENT APPEARS TO
HAVE BEEN GIVEN RETROACTIVE EFFECT.  THE AGREEMENT STATES THAT IT IS
"MADE AS OF OCTOBER 19, 1941"; BUT THAT IT WAS ACTUALLY MADE AS OF THAT
DATE IS IMPOSSIBLE, SINCE THE WAR SHIPPING ADMINISTRATION DID NOT COME
INTO BEING UNTIL FEBRUARY 7, 1942.  SEE NOTE 1. 

SOME OF THE TERMS OF THE AGREEMENT ARE SUMMARIZED IN THE TEXT AND
NOTES 30, 40, 41. 

FN11  CF. BRADY V. ROOSEVELT S.S. CO., 317 U.S. 575.  ON THE EVIDENCE
OF NEGLIGENCE PRESENTED HERE IT WAS NOT SHOWN THAT RESPONDENT HAD
FAILED TO PERFORM ANY DUTY IN OUTFITTING THE SHIP OR OTHERWISE IN
RELATION TO THE DELINQUENCIES ALLEGED TO HAVE CONSTITUTED CAUSES OF THE
INJURIES.  THESE, SO FAR AS THE RECORD DISCLOSES, WERE ATTRIBUTABLE
ENTIRELY TO OCCURRENCES TAKING PLACE AFTER THE SHIP HAD LAST PUT TO
SEA. 

FN12  SEE LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111, NOTES 27
AND 19 AND AUTHORITIES CITED. 

FN13  SEE NOTE 7. 

FN14  PETITIONER RELIES ON THE FOLLOWING CASES AS SUPPORTING HIS
POSITION:  GAY V. POPE & TALBOT, 183 MISC. 162, 47 N.Y.S.2D 16;
MCCORMICK V. MOORE-MCCORMACK LINES, 54 F.SUPP.  399; MOSS V. ALASKA
PACKERS ASSN., 160 P.2D 224, 1945 A.M.C. 493; BAST V. AMERICAN-HAWAIIAN
S.S. CO., 1945 A.M.C. 503; SCHALLER V. MATSON NAVIGATION CO., 43
N.Y.S.2D 566. 

RESPONDENT RELIES UPON ALGIERE V. COSMOPOLITAN SHIPPING CO., 185
MISC. 271, 56 N.Y.S.2D 361, 1945 A.M.C. 906; PEDERSEN V. STOCKARD S.S.
CORP., 268 APP. DIV. 992, 51 N.Y.S.2D 675, 1945 A.M.C. 23; NIELSEN V.
AMERICAN PRESIDENT LINES, 50 N.Y.S.2D 249, 1944 A.M.C. 1169; STEELE V.
AMERICAN SOUTH AFRICAN LINE, 62 F.SUPP.  636; BAKER V. MOORE-MCCORMACK
LINES, 57 F.SUPP.  207; CONLON V. HAMMOND SHIPPING CO., 55 F.SUPP. 
635; WILLIAMS V. AMERICAN FOREIGN S.S. CORP., 1946 A.M.C. 98; FERRIS V.
AMERICAN SOUTH AFRICAN LINE, 1945 A.M.C. 1296; WALSH'S CASE, 1945
A.M.C. 747; MURRAY V. AMERICAN EXPORT LINES, 53 F.SUPP.  861; FOX V.
ALCOA S.S. CO., 143 F.2D 667.  SEE ALSO NOTE (1946) 55 YALE L.J. 584. 

FN15  SEE TEXT INFRA AT NOTE 36. 

FN16  SEE WARNER V. GOLTRA, 293 U.S. 155; GERRADIN V. UNITED FRUIT
CO., 60 F.2D 927. 

FN17  SEE WARNER V. GOLTRA, SUPRA, AT 159-160 AND THE CITED
LEGISLATIVE HISTORY.  IN THE HEARINGS ON THE CLARIFICATION ACT THE
SEAMEN AGAIN OPPOSED BEING BROUGHT WITHIN A COMPENSATION ACT.  SEE
STATEMENT OF THE NATIONAL MARITIME UNION, HEARINGS BEFORE THE COMMITTEE
ON THE MERCHANT MARINE AND FISHERIES ON H.R. 7424, 77TH CONG., 2D
SESS., 30-31. 

FN18  THE JONES ACT IS "AN INTEGRAL PART OF THE MARITIME LAW  ..." 
GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239, 248. 

FN19  FOUR DIFFERENT CASES WERE DISPOSED OF IN THE SINGLE OPINION,
INCLUDING IN ADDITION TO THE JOHNSON CASE FLEET CORP. V. LUSTGARTEN. 
IN THAT CASE THE DEFENDANTS WERE THE FLEET CORPORATION AND THE
CONSOLIDATED NAVIGATION COMPANY, WHICH OPERATED THE VESSEL FOR THE
UNITED STATES AS AGENT PURSUANT TO AN AGREEMENT WITH THE SHIPPING
BOARD.  THE SUIT WAS BY A SEAMAN INJURED IN THE SHIP'S SERVICE
ALLEGEDLY FOR NEGLIGENT FAILURE OF THE DEFENDANTS TO FURNISH HIM A SAFE
PLACE TO WORK AND, FURTHER, FURNISH MEDICAL TREATMENT AND CARE AFTER
THE INJURIES WERE INCURRED.  280 U.S. AT 323.  THE JUDGMENT FOR THE
PLAINTIFF WAS REVERSED AS TO BOTH DEFENDANTS, NO MENTION BEING MADE IN
THE OPINION OF ANY DIFFERENCE BETWEEN THEM FOR APPLICABILITY OF THE
SUITS IN ADMIRALTY ACT OR OTHERWISE. 

FN20  THE COURT HELD THE JOHNSON RULING AS TO THE NAVIGATION CO. TO
BE UNTENABLE, EXPRESSLY STATING "THAT THE LUSTGARTEN CASE SO FAR AS IT
WOULD PREVENT A PRIVATE OPERATOR FROM BEING SUED UNDER THE
CIRCUMSTANCES OF THIS CASE MUST BE CONSIDERED AS NO LONGER
CONTROLLING."  317 U.S. AT 578.  SEE NOTES 19, 22. 

IT IS TO BE NOTED THAT, ALTHOUGH THE DECEDENT IN THE BRADY CASE FOR
WHOSE DEATH THE SUIT WAS BROUGHT WAS NOT A SEAMAN, LUSTGARTEN WAS.  IN
BOTH CASES THE CAUSE OF ACTION ASSERTED WAS NEGLIGENCE OR MARITIME
TORT. 

FN21  THE UNITED STATES SHIPPING BOARD WAS ESTABLISHED BY 39 STAT.
729 AND 41 STAT. 989.  SECTION 11 OF THE EARLIER STATUTE, 39 STAT. AT
731, AUTHORIZED THE UNITED STATES SHIPPING BOARD TO ESTABLISH
GOVERNMENT-CONTROLLED CORPORATIONS, AND PURSUANT TO THIS PROVISION THE
UNITED STATES SHIPPING BOARD MERCHANT FLEET CORPORATION WAS SET UP.
SEE SLOAN SHIPYARDS CORP. V. MERCHANT FLEET CORP., 258 U.S. 549, 564. 
BY EXECUTIVE ORDER NO. 6166, JUNE 10, 1933, SEC. 12, THE FUNCTIONS OF
THE UNITED STATES SHIPPING BOARD, INCLUDING THOSE OF THE EMERGENCY
FLEET CORPORATION, WERE TRANSFERRED TO THE DEPARTMENT OF COMMERCE. 
SUBSEQUENTLY, BY THE MERCHANT MARINE ACT OF 1936, 49 STAT. 1987, THE
UNITED STATES MARITIME COMMISSION WAS CREATED AND THE FUNCTIONS AND
DUTIES OF THE FORMER SHIPPING BOARD WERE TRANSFERRED TO IT. 

FN22  UNDER THE STANDARD FORMS OF CONTRACT UTILIZED FOR THESE
ARRANGEMENTS BY THE SHIPPING BOARD AND LATER BY THE MARITIME
COMMISSION, THE PRIVATE OPERATOR, THOUGH DESIGNATED AS "AGENT" SOMEWHAT
IN THE MANNER OF THE ADMINISTRATION'S GENERAL SERVICE AGREEMENT,
UNDERTOOK TO "MAN THE SHIP" ALONG WITH OTHER DUTIES ASSUMED.  UNDER
THIS PROVISION THE SHIPPING COMPANY RATHER THAN THE GOVERNMENT WAS
REGARDED AS THE SEAMAN'S EMPLOYER.  ACCORDINGLY HE HAD ALL THE RIGHTS
INCIDENT TO THE EMPLOYMENT AS AGAINST THIS OPERATING "AGENT,"
NOTWITHSTANDING THE VESSEL WAS OWNED BY THE GOVERNMENT.  THE SUITS IN
ADMIRALTY ACT WAS NOT INTENDED TO AND DID NOT TOUCH THOSE RIGHTS.  AS
STATED IN THE TEXT, ITS REMEDIES WERE ADDED TO THEM. 

BECAUSE THE GENERAL SERVICE AGREEMENT OMITS THE EXPLICIT REQUIREMENT
THAT THE "AGENT" SHALL "MAN THE SHIP," IT IS STRONGLY ARGUED AND THE
OREGON SUPREME COURT HELD THAT THE RELATION BETWEEN THE RESPONDENT AND
THE SEAMAN HERE IS BASICALLY DIFFERENT FROM THAT EXISTING UNDER THE
MARITIME COMMISSION'S STANDARD ARRANGEMENTS SINCE, IT IS SAID, THAT
OMISSION DESTROYS THE EMPLOYER-EMPLOYEE RELATION BETWEEN THE "AGENT"
AND THE SEAMAN, AND CREATES ANOTHER, ENTIRELY DIFFERENT, BETWEEN THE
GOVERNMENT AND THE SEAMAN.  CF. TEXT INFRA AT NOTE 30. 

FN23  CF. NOTE 22.  EFFORT HAS BEEN MADE TO RESTRICT THE SCOPE OF THE
BRADY RULING, BY REGARDING IT AS APPLICABLE ONLY TO THE SITUATION WHERE
THE INJURY RESULTED FROM NEGLIGENCE OF THE PRIVATE OPERATING AGENCY FOR
WHICH THE GOVERNMENT OR ITS SPONSORING CORPORATION WOULD NOT BE LIABLE,
IN RELIANCE UPON THE OPINION'S USE OF THIS SITUATION TO ILLUSTRATE THE
FACT THAT THE SUITS IN ADMIRALTY ACT DID NOT CUT OFF GENERAL MARITIME
RIGHTS AND REMEDIES AGAINST THE OPERATING AGENT.  317 U.S. AT 581.  BUT
THE RULING WAS BROADER BOTH IN RATIONALIZATION AND IN RESULT.  THE
COURT DID NOT RESTRICT POSSIBLE RECOVERY TO SUCH A SITUATION IN
REMANDING THE CAUSE FOR DETERMINATION OF WHETHER A CAUSE OF ACTION HAD
BEEN MADE OUT.    FN24  BY WHICH TIME THE GOVERNMENTAL POOL PRESUMABLY
WILL HAVE BEEN DISSOLVED, AT ANY RATE TO THE EXTENT OF RETURNING MANY
OF THE VESSELS COMPRISING IT TO THE PRIVATE OWNERS AND OPERATORS.  SEC.
5, CLARIFICATION ACT, 57 STAT. 51, 50 U.S.C. APP. SEC. 1295; TITLE IV,
SEC. 401, FIRST WAR POWERS ACT, 55 STAT. 841, 50 U.S.C. APP. SEC. 621. 

FN25  CF. TEXT FOLLOWING NOTE 4 SUPRA.  AT THE TIME OF THE JAPANESE
SURRENDER THE TOTAL NUMBER OF SHIPS OPERATED AND OWNED BY THE WAR
SHIPPING ADMINISTRATION WAS 4,363.  OF THESE, 537 WERE TIME-CHARTERED
FROM PRIVATE OPERATORS AND 405 WERE BAREBOAT-CHARTERED FROM PRIVATE
OPERATORS; 3,101 WERE OPERATED UNDER A GENERAL SERVICE AGREEMENT.  SEE
ALSO NOTE 1. 

FN26  SUCH AS, E.G., FAILING TO PROVIDE NEEDED REPAIRS OR SUPPLIES,
BUT NOT INCLUDING ANY ACT ATTRIBUTABLE TO NEGLIGENCE ON THE PART OF THE
MASTER OR OTHER MEMBERS OF THE CREW.  CF. NOTE 23. 

FN27  317 U.S. AT 581, CITING SEC. 5 OF THE ACT, AND EMERGENCY FLEET
CORP. V. ROSENBERG BROS. & CO., 276 U.S. 202.  THE PERIOD PROVIDED
UNDER THE JONES ACT, FOR INSTANCE, IS THREE YEARS.  45 U.S.C. SEC. 56. 

FN28  ONE OF THE BRIEFS AMICUS CURIAE STATES THAT THE SEAMAN'S WIDOW
FOR WHOM IT IS FILED HAS INSTITUTED SUIT AGAINST THE SHIPPING COMPANY
WITHIN TWO YEARS AFTER HER HUSBAND'S DEATH BUT THAT, INASMUCH AS NO
SUIT AGAINST THE UNITED STATES HAS BEEN INSTITUTED WITHIN THAT PERIOD,
IF HER CAUSE OF ACTION AGAINST THE SHIPPING COMPANY WILL NOT LIE, SHE
WILL ALSO BE UNABLE BY VIRTUE OF THE STATUTE OF LIMITATIONS IN THE
SUITS IN ADMIRALTY ACT TO SUE THE UNITED STATES. 

FN29  AS IN THE CASE, SUGGESTED IN THE BRADY OPINION, IN WHICH THE
AGENT ALONE AND NOT THE PRINCIPAL WOULD BE LIABLE.  317 U.S. AT 581. 
SEE NOTE 23. 

FN30  SEE THE CONCURRING OPINION OF MR. JUSTICE DOUGLAS IN THIS CASE;
ALSO NOTE 10 SUPRA. "THESE QUESTIONS ARISE BECAUSE OF A TECHNICAL
STATUS OF SUCH SEAMEN AS EMPLOYEES OF THE UNITED STATES BY VIRTUE OF
THEIR EMPLOYMENT THROUGH THE WAR SHIPPING ADMINISTRATION FOR SERVICE ON
SUCH VESSELS."  S. REP. NO. 62, 78TH CONG., 1ST SESS., 5.  THE CHIEF
DIFFERENCES BETWEEN THE RELATIONSHIP OF THE MANAGING AGENT IN THE BRADY
CASE TO THE SEAMEN AND THE RELATIONSHIP OF THE RESPONDENT TO THE SEAMEN
ARE, AS SET OUT IN THE CONTRACTS, AS FOLLOWS: 

UNDER THE AGREEMENT IN THE BRADY CASE THE MANAGING AGENT AGREED TO
MAN THE VESSELS.  THE LICENSED OFFICERS AND CHIEF STEWARD, HOWEVER,
WERE SUBJECT TO THE APPROVAL OF THE OWNER, THE UNITED STATES, WHICH
ALSO HAD THE RIGHT TO REMOVE ANY EMPLOYEES "IF IT SHALL HAVE REASON TO
BE DISSATISFIED." 

UNDER THE GENERAL AGENT SERVICE AGREEMENT THE SHIPPING COMPANY DOES
NOT AGREE TO MAN THE VESSEL.  IT AGREES TO PROCURE THE MASTER, SUBJECT
TO THE APPROVAL OF THE UNITED STATES.  THE MASTER IS AN AGENT AND
EMPLOYEE OF THE UNITED STATES AND HAS COMPLETE RESPONSIBILITY AND
AUTHORITY WITH RESPECT TO THE NAVIGATION AND MANAGEMENT OF THE VESSEL. 
THE GENERAL AGENT AGREES TO PROCURE OFFICERS AND MEN THROUGH THE USUAL
CHANNELS AND IN ACCORDANCE WITH THE CUSTOMARY PRACTICES OF COMMERCIAL
OPERATORS AND TO MAKE THEM AVAILABLE TO THE MASTER.  IT IS PROVIDED
THAT OFFICERS AND MEMBERS OF THE CREW "SHALL BE SUBJECT ONLY TO THE
ORDERS OF THE MASTER." 

FN31  SEE TEXT SUPRA PRECEDING NOTE 10.  THE OPINION STATED: "WE
THINK IT MUST BE ASSUMED IN DETERMINING WHETHER THE PLAINTIFF WAS AN
EMPLOYEE OF THE DEFENDANT THAT THE CASE IS GOVERNED BY THE RULE OF THE
COMMON LAW."  176 ORE.  662, 669, 158 P.2D 275, 278. 

FN32  "THE BASIC SCOPE AND PHILOSOPHY OF THE MEASURE IS TO PRESERVE
PRIVATE RIGHTS OF SEAMEN WHILE UTILIZING THE MERCHANT MARINE TO THE
UTMOST FOR PUBLIC WARTIME BENEFIT.  EXCEPT IN RARE CASES THE SHIPS
THEMSELVES ARE BEING OPERATED AS MERCHANT VESSELS, AND ARE THEREFORE
SUBJECT TO THE SUITS IN ADMIRALTY ACT IN ALL RESPECTS.  GRANTING SEAMEN
RIGHTS TO SUE UNDER THAT ACT IS THEREFORE ENTIRELY CONSISTENT WITH THE
UNDERLYING PATTERN OF THE MEASURE."  S. REP. NO. 62, 78TH CONG., 1ST
SESS., 11. 

"PRESENT-DAY OPERATING CONDITIONS OFTEN MAKE UNCERTAIN WHETHER THE
VESSEL IS A MERCHANT OR A PUBLIC VESSEL.  AS A CONSEQUENCE THE
AFOREMENTIONED RIGHTS (RIGHTS UNDER THE JONES ACT AND THE GENERAL
MARITIME LAW) OF SUCH SEAMEN ARE FREQUENTLY IN DOUBT.  IN ADDITION TO
THESE RIGHTS WHICH, AT TIMES, ARE UNCERTAIN FOR THE REASONS MENTIONED,
THE SEAMEN WHO ARE EMPLOYEES OF THE UNITED STATES PROBABLY HAVE RIGHTS
UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT IN THE EVENT OF
INJURY OR DEATH.  SUCH COMPENSATION BENEFITS ARE NOT PRESENTLY ENJOYED
BY SEAMEN UNDER PRIVATE EMPLOYMENT.  THUS VITAL DIFFERENCES IN THESE
RIGHTS ARE MADE TO DEPEND UPON WHETHER THE SEAMAN HAPPENS TO BE
EMPLOYED ABOARD A VESSEL TIME-CHARTERED TO THE WAR SHIPPING
ADMINISTRATION OR OWNED BY OR BAREBOAT-CHARTERED TO THE WAR SHIPPING
ADMINISTRATION.  SINCE SEAMEN CONSTANTLY CHANGE FROM ONE VESSEL TO
ANOTHER, THEIR RIGHTS FOR DEATH, INJURY, OR ILLNESS ALSO CONSTANTLY
CHANGE DEPENDING UPON THE RELATIONSHIP OF THE WAR SHIPPING
ADMINISTRATION TO THE VESSEL.  THIS FLUCTUATION AND LACK OF UNIFORMITY
OF RIGHTS LEADS TO DEPENDENCY OF VITAL RIGHTS UPON CHANCE WITH A RESULT
OF CONFUSION AND INEQUITIES.  THE BILL IS DESIGNED TO REMOVE THIS
CONFUSION AND THESE INEQUITIES."  H. REP. NO. 2572, 77TH CONG., 2D
SESS., 9. 

FN33  SEE NOTES 36 AND 37 AND TEXT. 

FN34  SEE SECS. 3 AND 4 OF THE CLARIFICATION ACT.  THESE RELATE TO
PAYMENT OF JUST COMPENSATION FOR VESSELS REQUISITIONED, WAR RISK
INSURANCE, LIMITATION OF LIABILITY FOR THE WAR SHIPPING ADMINISTRATION,
AND OTHER MISCELLANEOUS MATTERS.  SECTION 1 OF THE ACT PROVIDED THAT
THE SEAMEN "BECAUSE OF THE TEMPORARY WARTIME CHARACTER OF THEIR
EMPLOYMENT BY THE WAR SHIPPING ADMINISTRATION" SHOULD NOT BE CONSIDERED
AS OFFICERS OR EMPLOYEES OF THE UNITED STATES FOR THE PURPOSES OF
VARIOUS SPECIFIED ACTS, INCLUDING THE UNITED STATES COMPENSATION ACT. 

FN35  THE PROVISION PRINCIPALLY AFFECTING RIGHTS LIKE THOSE NOW IN
QUESTION WAS SEC. 1:  "(A) OFFICERS AND MEMBERS OF CREWS (HEREINAFTER
REFERRED TO AS 'SEAMEN') EMPLOYED ON UNITED STATES OR FOREIGN FLAG
VESSELS AS EMPLOYEES OF THE UNITED STATES THROUGH THE WAR SHIPPING
ADMINISTRATION SHALL, WITH RESPECT TO (1) LAWS ADMINISTERED BY THE
PUBLIC HEALTH SERVICE AND THE SOCIAL SECURITY ACT, AS AMENDED BY
SUBSECTION (B)(2) AND (3) OF THIS SECTION; (2) DEATH, INJURIES,
ILLNESS, MAINTENANCE AND CURE, LOSS OF EFFECTS, DETENTION, OR
REPATRIATION, OR CLAIMS ARISING THEREFROM NOT COVERED BY THE FOREGOING
CLAUSE (1); AND (3) COLLECTION OF WAGES AND BONUSES AND MAKING OF
ALLOTMENTS, HAVE ALL OF THE RIGHTS, BENEFITS, EXEMPTIONS, PRIVILEGES,
AND LIABILITIES, UNDER LAW APPLICABLE TO CITIZENS OF THE UNITED STATES
EMPLOYED AS SEAMEN ON PRIVATELY OWNED AND OPERATED AMERICAN VESSELS....
ANY CLAIM REFERRED TO IN CLAUSE (2) OR (3) HEREOF SHALL, IF
ADMINISTRATIVELY DISALLOWED IN WHOLE OR IN PART, BE ENFORCED PURSUANT
TO THE PROVISIONS OF THE SUITS IN ADMIRALTY ACT, NOTWITHSTANDING THE
VESSEL ON WHICH THE SEAMAN IS EMPLOYED IS NOT A MERCHANT VESSEL WITHIN
THE MEANING OF SUCH ACT.  ANY CLAIM, RIGHT, OR CAUSE OF ACTION OF OR IN
RESPECT OF ANY SUCH SEAMAN ACCRUING ON OR AFTER OCTOBER 1, 1941, AND
PRIOR TO THE DATE OF ENACTMENT OF THIS SECTION MAY BE ENFORCED, AND
UPON THE ELECTION OF THE SEAMAN OR HIS SURVIVING DEPENDENT OR
BENEFICIARY, OR HIS LEGAL REPRESENTATIVE TO DO SO SHALL BE GOVERNED, AS
IF THIS SECTION HAD BEEN IN EFFECT WHEN SUCH CLAIM, RIGHT, OR CAUSE OF
ACTION ACCRUED, SUCH ELECTION TO BE MADE IN ACCORDANCE WITH RULES AND
REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, WAR SHIPPING
ADMINISTRATION.  RIGHTS OF ANY SEAMAN UNDER THE SOCIAL SECURITY ACT, AS
AMENDED BY SUBSECTION (B)(2) AND (3), AND CLAIMS THEREFOR SHALL BE
GOVERNED SOLELY BY THE PROVISIONS OF SUCH ACT, SO AMENDED.  WHEN USED
IN THIS SUBSECTION THE TERM 'ADMINISTRATIVELY DISALLOWED' MEANS A
DENIAL OF A WRITTEN CLAIM IN ACCORDANCE WITH RULES OR REGULATIONS
PRESCRIBED BY THE ADMINISTRATOR, WAR SHIPPING ADMINISTRATION...."  57
STAT. 45. 

FN36  H. REP. NO. 2572, 77TH CONG., 2D SESS., 15, STATES:  "SPECIAL
PROVISION IS MADE WITH RESPECT TO RIGHTS AND WITH RESPECT TO CLAIMS AND
CAUSES INVOLVED IN SECTION 1(A)(2) AND (3) WHICH MAY HAVE ACCRUED ON OR
AFTER OCTOBER 1, 1941, AND PRIOR TO THE DATE OF ENACTMENT OF THE
MEASURE.  UNDER THIS PROVISION THE SEAMAN OR OTHER CLAIMANT MAY ELECT
TO ENFORCE THE CLAIM AS IF SECTION 1 HAD BEEN IN EFFECT AT THE TIME THE
CLAIM ACCRUED.  IN EXERCISING THIS OPTION THE CLAIMANT WOULD, OF
COURSE, ACCEPT THE INCIDENTAL CONSEQUENCES OF SUCH ELECTION, WOULD BE
PREVENTED FROM PROCEEDING TO SECURE DOUBLE RECOVERY UNDER OTHER
PROCEDURE WITHOUT REGARD TO SECTION 1, AND WOULD BE BOUND BY THE
APPLICABLE STATUTES OR PRINCIPLES OF LIMITATIONS. 

"INASMUCH AS CERTAIN VESSEL OPERATIONS ON ACCOUNT OF THE GOVERNMENT
WERE UNDERTAKEN PRIOR TO THE ESTABLISHMENT OF THE WAR SHIPPING
ADMINISTRATION BY OR THROUGH THE MARITIME COMMISSION, THE PROVISIONS OF
STATES MARITIME COMMISSION WITH RESPECT TO THE PERIOD BEGINNING OCTOBER
1, 1941, TO THE TIME OF TAKING OFFICE OF THE ADMINISTRATOR, WAR
SHIPPING ADMINISTRATION (FEBRUARY 11, 1942)." 

AND IN S. REP. NO. 1813, 77TH CONG., 2D SESS., 6, IT WAS STATED:
"SECTION 1 MAKES FULL PROVISION WITH RESPECT TO RIGHTS AND CLAIMS WHICH
MAY HAVE ACCRUED DURING THE EARLY MONTHS OF THE WAR OR ITS IMMINENCE,
AND PRIOR TO THE ENACTMENT OF THE BILL.  THIS PROVISION IS NECESSARY IN
VIEW OF VESSEL OPERATIONS BY OR THROUGH THE MARITIME COMMISSION IN THE
PERIOD PRIOR TO TAKING OFFICE OF THE ADMINISTRATOR, WAR SHIPPING
ADMINISTRATION (FEBRUARY 11, 1942)." 

FN37  CF. S. REP. NO. 62, 78TH CONG., 1ST SESS., 8, 17; H. REP. NO.
107, 78TH CONG., 1ST SESS., 5, 29.  THESE REPORTS CONSTRUE THE EFFECTS
OF THE BRADY DECISION MORE NARROWLY THAN WE HAVE DONE IN THIS CASE AND
THAN THE DECISION JUSTIFIES. 

FN38  SEE NOTES 39 AND 40. 

FN39  ON RESPONDENT'S CONTENTION IT IS ASSUMED THAT, BEFORE THE
CLARIFICATION ACT TOOK EFFECT, THE GOVERNMENT COULD BE SUED UNDER THE
SUITS IN ADMIRALTY ACT FOR RECOVERY IN THIS AND SIMILAR CASES.  WHETHER
AND HOW FAR THAT ACT WOULD HAVE PERMITTED SUITS BY SEAMEN INJURED IN
THE COURSE OF THEIR EMPLOYMENT PRIOR TO THE CLARIFICATION ACT'S
EFFECTIVE DATE NEED NOT BE DETERMINED IN THIS CASE. 

FN40  "TO THE EXTENT NOT RECOVERED FROM INSURANCE, THE UNITED STATES
SHALL ALSO REIMBURSE THE GENERAL AGENT FOR ALL CREW EXPENDITURES,
ACCRUING DURING THE TERM HEREOF, IN CONNECTION WITH THE VESSELS
HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL DISBURSEMENTS FOR OR ON
ACCOUNT OF WAGES, EXTRA COMPENSATION, OVERTIME, BONUSES, PENALTIES,
SUBSISTENCE, REPATRIATION, TRAVEL EXPENSE, LOSS OF PERSONAL EFFECTS,
MAINTENANCE, CURE, VACATION ALLOWANCES, DAMAGES OR COMPENSATION FOR
DEATH OR PERSONAL INJURY OR ILLNESS, AND INSURANCE PREMIUMS, REQUIRED
TO BE PAID BY LAW, CUSTOM, OR BY THE TERMS OF THE SHIP'S ARTICLES OR
LABOR AGREEMENTS, OR BY ACTION OF THE MARITIME WAR EMERGENCY BOARD
...." 

THE GENERAL AGENT SERVICE AGREEMENT PROVIDES THAT OFFICERS AND
MEMBERS OF THE CREW "SHALL BE PAID IN THE CUSTOMARY MANNER WITH FUNDS
PROVIDED BY THE UNITED STATES HEREUNDER."  THE PROOF AT TRIAL SHOWED
THAT PETITIONER WAS PAID HIS WAGES BY THE SHIP'S PURSER, THE MONEY
BEING IN ENVELOPES BEARING THE NAME OF RESPONDENT. 

FN41  SEE NOTE 40.  THE GENERAL AGENT SERVICE AGREEMENT ALSO PROVIDES
THAT THE UNITED STATES SHALL PROCURE INSURANCE AGAINST ALL INSURANCE
RISKS "OF WHATSOEVER NATURE OR KIND RELATING TO THE VESSELS ASSIGNED
HEREUNDER" AND "SHALL DEFEND, INDEMNIFY AND SAVE HARMLESS THE GENERAL
AGENT AGAINST AND FROM ANY AND ALL LOSS, LIABILITY, DAMAGE AND EXPENSE
...  TO THE EXTENT NOT COVERED OR NOT FULLY COVERED BY INSURANCE." 

COMPARE THE PROVISIONS OF SECS. 2 AND 3 OF THE CLARIFICATION ACT WITH
RESPECT TO INSURANCE AND COMPENSATION AS THEY AFFECT SEAMEN. 

FN42  SEE NOTES 32, 40, 41. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AGREES, CONCURRING. 

WHILE I HAVE JOINED IN THE OPINION OF THE COURT, I ADD A FEW WORDS TO
INDICATE THAT THE RESULT WE HAVE REACHED IS CONSONANT WITH THE
TRADITIONAL RULES OF LIABILITY. 

A CHARTERER WHO OBTAINS EXCLUSIVE POSSESSION AND MANAGEMENT OF THE
VESSEL FROM THE OWNER IS OWNER PRO HAC VICE AND SUBJECT TO THE
RESPONSIBILITIES OF OWNERSHIP FOR THE DURATION OF THE CHARTER PERIOD. 
REED V. UNITED STATES, 11 WALL.  591, 600-601; LEARY V. UNITED STATES,
14 WALL.  607, 610; UNITED STATES V. SHEA, 152 U.S. 178.  THE QUESTION
WHETHER EXCLUSIVE POSSESSION AND MANAGEMENT OF THE VESSEL HAVE BEEN
TRANSFERRED TO THE CHARTERER TURNS ON THE FACTS OF EACH CASE - A
CONSTRUCTION OF THE AGREEMENT BETWEEN THE PARTIES, AND THE CONDUCT OF
THE PARTIES UNDER THE ARRANGEMENT.  UNITED STATES V. SHEA, SUPRA, PP.
189-191. 

THIS AGREEMENT PROVIDES THAT THE GENERAL AGENT IS APPOINTED "TO
MANAGE AND CONDUCT THE BUSINESS OF VESSELS ASSIGNED TO IT BY THE UNITED
STATES FROM TIME TO TIME."  ART. 1.  THE GENERAL AGENT PROMISES "TO
MANAGE AND CONDUCT THE BUSINESS FOR THE UNITED STATES" OF SUCH VESSELS
AS HAVE BEEN "ASSIGNED TO AND ACCEPTED BY THE GENERAL AGENT."  ART. 2. 
THE UNITED STATES HAS THE POWER ON SPECIFIED NOTICE TO TERMINATE THE
AGREEMENT AND "TO ASSUME CONTROL FORTHWITH" OF THE VESSELS.  ART. 11. 
ON TERMINATION "ALL VESSELS AND OTHER PROPERTY OF WHATSOEVER KIND THEN
IN THE CUSTODY OF THE GENERAL AGENT" ARE TO BE "IMMEDIATELY TURNED OVER
TO THE UNITED STATES."  ART. 12.  THE FAIR INTENDMENT OF THESE
PROVISIONS IS THAT POSSESSION OF THE VESSELS PASSES TO THE GENERAL
AGENT UNDER THE AGREEMENT.    MANAGEMENT OF THE VESSELS ALSO IS GRANTED
THE GENERAL AGENT.  IT IS TO "MAINTAIN THE VESSELS IN SUCH TRADE OR
SERVICE AS THE UNITED STATES MAY DIRECT."  ART. 3.  IT IS THE ONE TO
"EQUIP, VICTUAL, SUPPLY AND MAINTAIN THE VESSELS."  ID.  IT SHALL
"PROCURE THE MASTER OF THE VESSELS  ... SUBJECT TO THE APPROVAL OF THE
UNITED STATES."  ID.  IT SHALL "PROCURE AND MAKE AVAILABLE TO THE
MASTER FOR ENGAGEMENT BY HIM THE OFFICERS AND MEN REQUIRED BY HIM TO
FILL THE COMPLEMENT OF THE VESSEL."  ID.  THE OFFICERS AND MEN ARE TO
BE "PROCURED BY THE GENERAL AGENT THROUGH THE USUAL CHANNELS AND IN
ACCORDANCE WITH THE CUSTOMARY PRACTICES OF COMMERCIAL OPERATORS AND
UPON THE TERMS AND CONDITIONS PREVAILING IN THE PARTICULAR SERVICE OR
SERVICES IN WHICH THE VESSELS ARE TO BE OPERATED FROM TIME TO TIME." 
ID.  THE GENERAL AGENT SHALL "ARRANGE FOR THE REPAIR OF THE VESSELS." 
ART. 14. 

ALL OF THESE THINGS ARE DONE, TO BE SURE, FOR THE ACCOUNT OF THE
UNITED STATES.  THE AGREEMENT, MOREOVER, SPECIFICALLY PROVIDES THAT THE
MASTER IS "AN AGENT AND EMPLOYEE OF THE UNITED STATES."  ART. 3.  THE
OFFICERS AND CREW ARE SUBJECT "ONLY TO THE ORDERS OF THE MASTER."  ART.
3.  AND THE SHIPPING ARTICLES WHICH WERE ENTERED INTO WERE BETWEEN THE
MASTER AND THE CREW.  FROM THIS IT IS ARGUED THAT THE MEMBERS OF THE
CREW WERE EMPLOYEES OF THE UNITED STATES, NOT OF THE GENERAL AGENT OR
OPERATOR. 

THE SHIPPING ARTICLES, HOWEVER, ARE BY STATUTE REQUIRED TO BE AN
ENGAGEMENT BETWEEN THE MASTER AND THE CREW.  38 STAT. 1168, 46 U.S.C.
SEC. 713.  THE RESPONSIBILITY OF THE MASTER FOR THE OPERATION OF THE
VESSEL IS, MOREOVER, TRADITIONAL.  SEE UNITED STATES V. FARNHAM, 25
FED. CAS. NO. 15,071, PP. 1042, 1045.  SO THE CASE FOR RESPONDENT COMES
DOWN ESSENTIALLY TO THE PROVISION IN THE AGREEMENT THAT THE MASTER IS
THE AGENT AND EMPLOYEE OF THE UNITED STATES. 

IF THE PARTIES TO A CONTRACT COULD BY THE CHOICE OF A LABEL DETERMINE
THESE QUESTIONS OF RESPONSIBILITY TO THIRD PERSONS THE PROBLEM WOULD BE
SIMPLE.  BUT THE CONVENTIONS OF THE PARTIES DO NOT DETERMINE IN THE
EYES OF THE LAW THE RIGHTS OF THIRD PERSONS.  BRADY V. ROOSEVELT S.S.
CO., 317 U.S. 575, 583.  THE COURT DEALT WITH ONE SPECIES OF THIS
PROBLEM IN KNIGHTS OF PYTHIAS V. WITHERS, 177 U.S. 260, WHERE AN
INSURANCE POLICY DESIGNATED THE PERSON TO WHOM PREMIUMS WERE PAID AS
THE AGENT OF THE INSURED, NOT THE AGENT OF THE INSURER.  THE COURT
SAID, P. 268: 

"THE REPORTS ARE BY NO MEANS BARREN OF CASES TURNING UPON THE PROPER
CONSTRUCTION OF THIS SO-CALLED 'AGENCY CLAUSE,' UNDER WHICH THE
DEFENDANT SEEKS TO SHIFT ITS RESPONSIBILITY UPON THE INSURED FOR THE
NEGLECT OF CHADWICK TO REMIT ON THE PROPER DAY.  IN SOME JURISDICTIONS
IT IS HELD TO BE PRACTICALLY VOID AND OF NO EFFECT; IN OTHERS, IT IS
LOOKED UPON AS A SPECIES OF WILD ANIMAL, LYING IN WAIT AND READY TO
SPRING UPON THE UNWARY POLICYHOLDER, AND IN ALL, IT IS EYED WITH
SUSPICION AND CONSTRUED WITH GREAT STRICTNESS.  WE THINK IT SHOULD NOT
BE GIVEN EFFECT WHEN MANIFESTLY CONTRARY TO THE FACTS OF THE CASE, OR
OPPOSED TO THE INTERESTS OF JUSTICE." 

THIS PROBLEM OF LIABILITY TO THIRD PERSONS IS RESOLVED BY DETERMINING
WHOSE ENTERPRISE THE PARTICULAR VENTURE WAS.  THE FACT THAT THE PARTIES
SAY IT IS THE ENTERPRISE OF ONE, NOT THE OTHER, IS NOT DECISIVE. 
CONTROL IN THE OPERATION AND MANAGEMENT OF THE BUSINESS, AS
DISTINGUISHED FROM GENERAL SUPERVISION, IS THE CUSTOMARY TEST.  I LOOK
IN VAIN TO FIND IN THE PRESENT ARRANGEMENT ANY EVIDENCE THAT THE OWNER
ACTED AS THE MANAGER OF THIS BUSINESS.  RESPONDENT, THE GENERAL AGENT,
HAD A MOST SUBSTANTIAL MEASURE OF CONTROL OVER THE OPERATIONS OF THE
VESSELS.  ITS DE FACTO CONTROL WAS NO WHIT LESS OR MORE WHETHER THE
MASTER WERE CALLED THE AGENT OF THE OWNER OR ITS OWN AGENT.  THE CASE
IS NOT ONE WHERE AN AGENT ATTENDS ONLY TO THE BUSINESS OF A VESSEL AS
DISTINGUISHED FROM ITS MANNING OR PHYSICAL OPERATION OR CONTROL. 
RESPONDENT MAINTAINS THE VESSELS IN THE BROADEST SENSE AND PROCURES THE
MASTER AND CREW.  IN THE BRADY CASE THE OPERATOR WAS "TO MAN, EQUIP,
VICTUAL, SUPPLY AND OPERATE THE VESSELS."  317 U.S. P. 576.  THE SAME
WAS TRUE IN QUINN V. SOUTHGATE NELSON CORP., 121 F.2D 190, 191.  BUT
THE DIFFERENCE IN WORDS BETWEEN THE AGREEMENTS IN THOSE CASES AND THE
PRESENT ONE DOES NOT, ON A VIEW OF THE ENTIRE SITUATION, MARK A
DIFFERENCE IN FUNCTIONS OF THE PRIVATE OPERATOR.  IT IS, INDEED,
DIFFICULT TO SEE HOW THE FUNCTIONS OF THE PRIVATE OPERATOR WERE IN ANY
WAY CHANGED UNDER THIS AGREEMENT FROM WHAT THEY WERE IN THOSE OTHER TWO
CASES.  RESPONDENT, OF COURSE, ACCOUNTS FOR ITS OPERATIONS TO THE
UNITED STATES.  THE UNITED STATES REIMBURSES IT FOR ALL OF ITS
EXPENDITURES, INCLUDING THE WAGES OF THE CREW.  BUT IT IS IMMATERIAL
THAT THE OWNER PROVIDES THE ENTIRE CREW AND PAYS THEIR WAGES.  A
CHARTERER WHO HAS CONTROL OF THE OPERATIONS IS OWNER PRO HAC VICE. 
HILLS V. LEEDS, 149 F. 878.  SO FAR AS THIS RECORD REVEALS, THE
OPERATOR PERFORMED ALL OF THE FUNCTIONS WHICH IT PERFORMED IN THE BRADY
AND QUINN CASES.  THERE IS HERE NO TAKING OVER OF ADDITIONAL FUNCTIONS
BY THE OWNER.  THE ARRANGEMENT IS CLOTHED IN DIFFERENT GARB.  BUT IT IS
THE PRIVATE OPERATOR WHO MANAGES AND CONTROLS THE PHYSICAL OPERATION. 
THE POWERS RESERVED TO THE OWNER WERE GENERAL SUPERVISORY POWERS
ADEQUATE FOR THE EXIGENCIES OF THE WARTIME CONDITIONS WHICH PREVAILED. 
BUT THEY DID NOT DETRACT FROM THE POWERS OF PHYSICAL OPERATION GRANTED
RESPONDENT. 

THE FACT THAT WE HAVE HERE NO MORE THAN A CHANGE IN FORM NOT IN
SUBSTANCE IS BORNE OUT BY COLLATERAL PHASES OF THIS UNDERTAKING.  THE
COMPENSATION OF RESPONDENT IS NOT TO BE LESS THAN "THE AMOUNT OF
EARNINGS WHICH THE GENERAL AGENT WOULD HAVE BEEN PERMITTED TO EARN
UNDER ANY APPLICABLE PREVIOUSLY EXISTING BAREBOAT CHARTERS, PREFERENCE
AGREEMENTS, COMMITMENTS, RULES OR REGULATIONS OF THE UNITED STATES
MARITIME COMMISSION UNTIL THE EARLIEST TERMINATION DATE PERMISSIBLE
THEREUNDER AS OF MARCH 22, 1942."  ART. 5.  THE UNITED STATES AGREES TO
REIMBURSE RESPONDENT FOR "DAMAGES OR COMPENSATION FOR DEATH OR PERSONAL
INJURY OR ILLNESS" REQUIRED TO BE PAID.  ART. 7.  IT ALSO AGREES TO
REIMBURSE RESPONDENT FOR PAYMENTS MADE BY RESPONDENT TO A PENSION FUND
FOR OFFICERS AND MEMBERS OF THE CREW, AS WELL AS FOR "SOCIAL SECURITY
TAXES WHICH THE GENERAL AGENT IS OR MAY BE REQUIRED TO PAY ON BEHALF OF
THE OFFICERS AND CREW OF SAID VESSELS AS AGENT OR OTHERWISE."  ID. 

THESE PROVISIONS ALL SUGGEST, AS THE RELATIONSHIP OF THE PARTIES
BEARS OUT, THAT THE UNITED STATES WAS THE UNDERWRITER OF THE FINANCIAL
RISKS OF THE VENTURE,  FN1  THE OPERATOR CONTINUING, AS IT ALWAYS HAD,
TO PERFORM THE MANAGERIAL FUNCTIONS.  THESE MANAGERIAL FUNCTIONS
CONSTITUTE CONTROL, DECISIVE OF LIABILITY IN THIS CASE.  THERE WAS NO
DEMISE.  BUT THE FORM OF THE AGREEMENT IS NOT IMPORTANT IF THE
FUNCTIONS OF THE OPERATOR WERE THOSE OF AN OWNER PRO HAC VICE.  I THINK
THAT IS THE TRUE CONDITION WHICH EXISTED HERE. 

AT COMMON LAW RESPONDENT WOULD BE THE PRINCIPAL, FOR THE BUSINESS OF
MANAGING AND OPERATING THE VESSEL WAS ITS BUSINESS.  IT WAS THEREFORE
THE EMPLOYER AND RESPONSIBLE FOR THIS PERSONAL INJURY CLAIM. 

FN1  SEE S. REP. NO. 898, 74TH CONG., 1ST SESS., PP. 39-40. 

MR. JUSTICE REED, DISSENTING. 

PETITIONER, HUST, A FIREMAN AND WATERTENDER ON THE S. S. MARK HANNA,
BROUGHT AN ACTION IN AN OREGON CIRCUIT COURT  FN1  AGAINST THE
RESPONDENT, THE MOORE-MCCORMACK LINES, INC. THE SUIT WAS UNDER THE
MERCHANT MARINE ACT OF 1920, THE JONES ACT, SEC. 33.  FN2  IT SOUGHT
DAMAGES AGAINST THE RESPONDENT AS EMPLOYER.  AS SEC. 33 SHOWS ON ITS
FACE, A SEAMAN HAS THE ADVANTAGES OF THE FEDERAL EMPLOYERS' LIABILITY
ACT ONLY AGAINST HIS EMPLOYER.  FN3  THE JUDGMENT OF THE SUPREME COURT
OF OREGON DENYING PETITIONER THE RIGHT TO RECOVER IN THIS ACTION WOULD
THEN BE CORRECT UNLESS THE RESPONDENT IS PETITIONER'S EMPLOYER OR
UNLESS CONGRESSIONAL LEGISLATION SINCE THE MERCHANT MARINE ACT GRANTS
PETITIONER A RIGHT OF RECOVERY AGAINST RESPONDENT EVEN THOUGH THE
EMPLOYER-EMPLOYEE RELATIONSHIP DOES NOT EXIST. 

THE S. S. MARK HANNA, A LIBERTY SHIP, WAS OWNED BY THE UNITED
STATES.  SO FAR AS APPEARS FROM THE RECORD, IT HAD NEVER BELONGED TO
ANYONE ELSE.  ITS OPERATION WAS UNDER THE DIRECTION OF THE WAR SHIPPING
ADMINISTRATION.  IN ORDER TO CARRY OUT ITS RESPONSIBILITIES, THE
ADMINISTRATION EMPLOYED RESPONDENT AS ITS GENERAL AGENT TO CONDUCT THE
BUSINESS OF CERTAIN SHIPS ASSIGNED TO RESPONDENT FOR HANDLING.  FROM
THE EXCERPTS FROM THE CONTRACT, SET OUT BELOW, WE THINK IT CLEAR THAT
THIS WAS A CONVENTIONAL AGENCY CONTRACT UNDER WHICH RESPONDENT MANAGED
CERTAIN MATTERS CONNECTED WITH THE SHIP FOR THE UNITED STATES.  WE
THINK IT CLEAR, AS DID THE SUPREME COURT OF OREGON, THAT SO FAR AS THE
CREW IS CONCERNED THE RESPONDENT ONLY PROCURED THE MEMBERS, SUCH AS
HUST, AND MADE THEM AVAILABLE TO THE MASTER, A UNITED STATES AGENT, FOR
EMPLOYMENT BY SAID MASTER FOR THE ACCOUNT OF THE UNITED STATES.  FN4
SUCH A CONTRACT MAKES THE UNITED STATES THE EMPLOYER UNDER THE MERCHANT
MARINE ACT, NOT THE MASTER AND NOT RESPONDENT, THE GENERAL AGENT.  THIS
IS AN ACTION UNDER THE MERCHANT MARINE ACT AND THE QUESTION OF
LIABILITY OF THE RESPONDENT FOR ANY NEGLIGENCE UNDER ANY OTHER STATUTE
OR RULE OF LAW, ADMIRALTY OR OTHERWISE, IS NOT BEFORE US. 

SINCE 1920, EMPLOYEES OF THE UNITED STATES UPON MERCHANT VESSELS OF
THE UNITED STATES HAVE HAD A RIGHT OF ACTION IN ADMIRALTY AGAINST THE
VESSELS IN ALL CASES WHERE THE EMPLOYEES WOULD HAVE HAD A RIGHT IF THE
VESSEL WERE PRIVATELY OWNED OR OPERATED.  THIS CAME FROM SEC. 2 OF THE
SUITS IN ADMIRALTY ACT.  FN5  THIS RIGHT OF ACTION WAS ENFORCEABLE
EXCLUSIVELY IN ADMIRALTY.  FN6 THERE WAS NO RIGHT TO A TRIAL AND
ASSESSMENT OF DAMAGES BY A JURY. 

WHEN THE WAR SHIPPING ADMINISTRATION BECAME THE OPERATOR OF
PRACTICALLY THE ENTIRE AMERICAN MERCHANT MARINE, DOUBTS SOMETIMES AROSE
AS TO WHETHER A PARTICULAR VESSEL WAS A "MERCHANT" VESSEL, OPERATED BY
THE UNITED STATES OR NOT.  THEREFORE TO CLARIFY THIS SITUATION AND TO
ASSURE ALL "EMPLOYEES OF THE UNITED STATES THROUGH THE WAR SHIPPING
ADMINISTRATION" ALL "RIGHTS" FOR "INJURIES" APPLICABLE TO SEAMEN
"EMPLOYED ON PRIVATELY OWNED AND OPERATED AMERICAN VESSELS," CONGRESS
ENACTED AN ACT TO CLARIFY THE LAW RELATING TO FUNCTIONS OF THE
ADMINISTRATION.  PROVISIONS FROM THE FIRST SECTION WHICH ARE IMPORTANT
HERE ARE SET OUT BELOW.  FN7 

AS WILL BE SEEN BY AN EXAMINATION OF THE REPORTS OF THE HOUSE AND
SENATE  FN8  IN CONNECTION WITH THE SPECIFIC REQUIREMENT OF THE FIRST
PURPOSE IN NO UNCERTAIN TERMS TO GRANT THE POWER TO ENFORCE THESE
RIGHTS ONLY THROUGH THE SUITS IN ADMIRALTY ACT.  THAT IS, THE SEAMAN
COULD NOT SUBMIT HIS CLAIM TO A JURY.  FN9  IT WILL BE NOTED THAT THE
WORDS "RIGHT" AND "STATUS" ARE USED WITH CARE, SO THAT IT IS PLAIN
CONGRESS INTENDED TO GIVE ALL ADMINISTRATION SEAMEN RIGHTS UNDER THE
MERCHANT MARINE ACT AND REMEDIES UNDER THE SUITS IN ADMIRALTY ACT. 

AS THERE MIGHT BE INSTANCES WHERE A SEAMAN WAS AN EMPLOYEE OF THE
ADMINISTRATION BUT HIS BOAT WAS NOT A MERCHANT VESSEL OF THE UNITED
STATES, THE CLARIFICATION ACT OF MARCH 24, 1943, WAS MADE RETROACTIVE
TO OCTOBER 1, 1941.  FN10  PROBABLY OTHER COMPENSATION FOR INJURIES MAY
HAVE EXISTED PRIOR TO THE ENACTMENT OF THIS ACT. 

IT IS SAID BY THE COURT THAT IF A SEAMAN EMPLOYED BY THE UNITED
STATES IS LIMITED TO THE REMEDIES OF THE SUITS IN ADMIRALTY ACT FOR
RECOVERY IN TORT, THE HOLDING IN EMERGENCY FLEET CORP. V. LUSTGARTEN,
280 U.S. 320, IS RESTORED AS A RULE OF LAW.  THE LUSTGARTEN CASE WAS
OVERRULED BY BRADY V. ROOSEVELT S.S. CO., 317 U.S. 575, 578.  WE THINK
THAT THIS MISCONCEIVES THE EFFECT OF THE BRADY CASE.  WE DO NOT THINK
THE REQUIREMENT THAT SEAMEN, EMPLOYEES OF THE UNITED STATES, MUST SEEK
THEIR REMEDY AGAINST THEIR EMPLOYER UNDER THE SUITS IN ADMIRALTY ACT
HAS ANY RELATION TO THE LUSTGARTEN OR BRADY CASES. 

LUSTGARTEN, A SEAMAN, SOUGHT RECOVERY AT LAW FOR A TORT AGAINST THE
NAVIGATION COMPANY, AN AGENT OF THE UNITED STATES.  IT WAS HELD THAT HE
COULD ONLY RECOVER UNDER THE SUITS IN ADMIRALTY ACT.  IN THE BRADY
CASE, UNDER A PETITION OF A VISITOR TO THE BOAT TO RECOVER AGAINST A
SIMILAR AGENT, IT WAS HELD A CAUSE OF ACTION IN TORT AT LAW WOULD LIE. 
THE LUSTGARTEN CASE WAS OVERRULED.  THE ONLY EFFECT OF THE BRADY
DECISION WAS TO HOLD THAT ACTIONS COULD BE MAINTAINED AGAINST AGENTS OF
THE UNITED STATES AT COMMON LAW FOR THE AGENT'S OWN TORTS.  THE CASE
HAD NOTHING WHATEVER TO DO WITH THE RIGHT TO RECOVER AGAINST EMPLOYERS
UNDER THE JONES ACT.  THE OPINION SAID, 317 U.S. AT 577, "THE SOLE
QUESTION HERE IS WHETHER THE SUITS IN ADMIRALTY ACT MAKES PRIVATE
OPERATORS SUCH AS RESPONDENT NON-SUABLE FOR THEIR TORTS."  "THE
LIABILITY OF AN AGENT FOR HIS OWN NEGLIGENCE HAS LONG BEEN EMBEDDED IN
THE LAW."  ID., AT 580.  "BUT IT IS A NON SEQUITUR TO SAY THAT BECAUSE
THE ACT TAKES AWAY THE REMEDY OF LIBEL IN REM IN ALL CASES INVOLVING
GOVERNMENT VESSELS AND RESTRICTS THE REMEDIES AGAINST THE UNITED STATES
AND ITS WHOLLY OWNED CORPORATIONS, IT MUST BE PRESUMED TO HAVE
ABOLISHED ALL RIGHT TO PROCEED AGAINST ALL OTHER PARTIES."  ID., AT
582.  "THE QUESTION IS NOT WHETHER THE COMMISSION HAD AUTHORITY TO
DELEGATE TO RESPONDENT RESPONSIBILITIES FOR MANAGING AND OPERATING THE
VESSEL AS ITS AGENT.  IT IS WHETHER RESPONDENT CAN ESCAPE LIABILITY FOR
A NEGLIGENT EXERCISE OF THAT DELEGATED POWER IF WE ASSUME THAT BY
CONTRACT IT WILL BE EXONERATED OR INDEMNIFIED FOR ANY DAMAGES IT MUST
PAY."  ID., AT 583-84.  THE CASE WAS THEN SENT BACK TO THE CIRCUIT
COURT OF APPEALS TO DETERMINE WHETHER A CAUSE OF ACTION AGAINST THE
AGENT WAS ESTABLISHED.  ALL THAT WAS MEANT OR SAID IN BRADY ABOUT
LUSTGARTEN WAS THAT THE LUSTGARTEN CASE WAS IN ERROR IN SAYING THAT A
SEAMAN COULD NOT SUE AN AGENT FOR THE AGENT'S OWN TORT.  THE BRADY
FINAL STATEMENT ON LUSTGARTEN WAS, "OUR CONCLUSION, HOWEVER, IS THAT
THAT POSITION IS UNTENABLE AND THAT THE LUSTGARTEN CASE SO FAR AS IT
WOULD PREVENT A PRIVATE OPERATOR FROM BEING SUED UNDER THE
CIRCUMSTANCES OF THIS CASE MUST BE CONSIDERED AS NO LONGER
CONTROLLING."  ID., AT 578.  THERE IS NO REASON HERE WHY THE PETITIONER
SHOULD NOT SUE RESPONDENT FOR ITS ALLEGED TORT.  WHAT PETITIONER IS
ATTEMPTING IS TO HOLD RESPONDENT LIABLE AS EMPLOYER FOR NEGLIGENCE OF
PETITIONER'S FELLOW SERVANTS, OF PETITIONER'S SUPERIORS OR THE MASTER
UNDER THE MERCHANT MARINE ACT.  THIS IT CANNOT DO UNDER THIS RECORD. 
FN11 

IT IS SUGGESTED THAT THE RESPONDENT MAY BE IN THE POSITION OF AN
EMPLOYER, AS A CHARTERER OR OWNER PRO HAC VICE.  BUT A CHARTERER OR
OWNER PRO HAC VICE, WHO IS ALSO AN EMPLOYER, IS ONE WHO TAKES OVER "THE
EXCLUSIVE POSSESSION, COMMAND, AND NAVIGATION OF THE VESSEL."  REED V.
UNITED STATES, 11 WALL.  591, 600.  THAT IS A BAREBOAT CHARTER.  UNDER
THE CONTRACT IN THIS CASE, THE RESPONDENT HAD NO SUCH AUTHORITY.  AS WE
HAVE POINTED OUT ABOVE, AND AS THE CONTRACT SHOWS, HE ACTED FOR THE
UNITED STATES UNDER ITS COMMAND AND THEN ONLY IN CERTAIN MATTERS NOT
CONNECTED WITH ACTUAL NAVIGATION. 

THE COURT DOES NOT CHALLENGE THE RESPONDENT'S ASSERTION THAT THE
MERCHANT MARINE ACT REQUIRES THE EMPLOYER-EMPLOYEE RELATIONSHIP.  IT IS
SAID, "BUT IT DOES NOT FOLLOW FROM THE FACT THAT HUST WAS TECHNICALLY
THE GOVERNMENT'S EMPLOYEE THAT HE LOST ALL REMEDIES AGAINST THE
OPERATING 'AGENT' FOR SUCH INJURIES AS HE INCURRED."  CERTAINLY HUST
DID NOT LOSE HIS REMEDIES AGAINST THE AGENT FOR THE AGENT'S TORTS.  HE
STILL HAS THOSE REMEDIES BUT PETITIONER WISHES TO HOLD THE AGENT AS AN
EMPLOYER.  THERE IS HERE NO "DISRUPTION" OF THE NORMAL AND PAST
RELATIONSHIP BETWEEN SEAMAN AND EMPLOYER.  THIS COURT ERRS, WE THINK,
IN SUGGESTING ANY SEAMAN HAS BEEN DEPRIVED OF ANY RIGHT BY THE
CLARIFICATION ACT OF 1943 UNDER THE CONSTRUCTION OF THE OREGON SUPREME
COURT.  NO SEAMAN EVER HAD A RIGHT OF RECOVERY UNDER THE MERCHANT
MARINE ACT EXCEPT AGAINST HIS EMPLOYER.  THAT THE SEAMAN STILL HAS. 

WHAT THE CLARIFICATION ACT DOES AND WHAT IT OBVIOUSLY WAS INTENDED TO
DO, SEE NOTES 7 AND 9, SUPRA, WAS TO CONTINUE THE POLICY OF REQUIRING
SEAMEN WHO WERE EMPLOYEES OF THE UNITED STATES TO CONTINUE TO VINDICATE
THOSE RIGHTS THROUGH THE SUITS IN ADMIRALTY ACT.  CONGRESS HAS BEEN
GENEROUS IN PERMITTING SEAMEN TO RECOVER IN COURT AGAINST THE UNITED
STATES FOR TORTS.  IT FELT THAT THE TRADITIONAL PROCEEDING IN ADMIRALTY
OFFERED THE BEST OPPORTUNITY FOR JUSTICE TO ALL SUCH INJURED SEAMEN
WHEN THEY WERE EMPLOYEES OF THE UNITED STATES.  FN12 

A CONVENIENT SUMMARY OF THE ATTITUDE OF THE ADMINISTRATIVE AGENCIES
TOWARD THIS PROBLEM IS FOUND IN A LETTER OF THE WAR SHIPPING
ADMINISTRATION TO THE NATIONAL LABOR RELATIONS BOARD OF OCTOBER 20,
1942.  FN13  SUCH ADMINISTRATIVE DETERMINATION IS ENTITLED TO WEIGHT. 

WE THINK THAT THE JUDGMENT OF THE OREGON SUPREME COURT SHOULD BE
AFFIRMED. 

FN1  SEE GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239, 245. 

FN2  41 STAT. 1007, 46 U.S.C. SEC. 688: 

"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; ..." 

FN3  PANAMA R. CO. V. JOHNSON, 264 U.S. 375, 389; NOLAN V. GENERAL
SEAFOODS CORP., 112 F.2D 515, 517; THE NORLAND, 101 F.2D 967; BAKER V.
MOORE-MCCORMACK LINES, 57 F.SUPP.  207, 208; EGGLESTON V. REPUBLIC
STEEL CORP., 47 F.SUPP.  658, 659; GARDINER V. AGWILINES, INC., 29
F.SUPP.  348. 

COMPARE ROBINSON V. BALTIMORE & OHIO R. CO., 237 U.S. 84, 94: 

"WE ARE OF THE OPINION THAT CONGRESS USED THE WORDS 'EMPLOYE' AND
'EMPLOYED' IN THE STATUTE IN THEIR NATURAL SENSE, AND INTENDED TO
DESCRIBE THE CONVENTIONAL RELATION OF EMPLOYER AND EMPLOYE." 

HULL V. PHILADELPHIA & READING R. CO., 252 U.S. 475. 

FN4  "WITNESSETH: THAT IN CONSIDERATION OF THE RECIPROCAL
UNDERTAKINGS AND PROMISES OF THE PARTIES HEREIN EXPRESSED: 

"ARTICLE 1.  THE UNITED STATES APPOINTS THE GENERAL AGENT AS ITS
AGENT AND NOT AS AN INDEPENDENT CONTRACTOR, TO MANAGE AND CONDUCT THE
BUSINESS OF VESSELS ASSIGNED TO IT BY THE UNITED STATES FROM TIME TO
TIME. 

"ARTICLE 2.  THE GENERAL AGENT ACCEPTS THE APPOINTMENT AND UNDERTAKES
AND PROMISES SO TO MANAGE AND CONDUCT THE BUSINESS FOR THE UNITED
STATES, IN ACCORDANCE WITH SUCH DIRECTIONS, ORDERS, OR REGULATIONS AS
THE LATTER HAS PRESCRIBED, OR FROM TIME TO TIME MAY PRESCRIBE, AND UPON
THE TERMS AND CONDITIONS HEREIN PROVIDED, OF SUCH VESSELS AS HAVE BEEN
OR MAY BE BY THE UNITED STATES ASSIGNED TO AND ACCEPTED BY THE GENERAL
AGENT FOR THAT PURPOSE. 

"ARTICLE 3A.  TO THE BEST OF ITS ABILITY, THE GENERAL AGENT SHALL FOR
THE ACCOUNT OF THE UNITED STATES: 

     .         .         .         .         . 

"(D)  THE GENERAL AGENT SHALL PROCURE THE MASTER OF THE VESSELS
OPERATED HEREUNDER, SUBJECT TO THE APPROVAL OF THE UNITED STATES.  THE
MASTER SHALL BE AN AGENT AND EMPLOYEE OF THE UNITED STATES, AND SHALL
HAVE AND EXERCISE FULL CONTROL, RESPONSIBILITY AND AUTHORITY WITH
RESPECT TO THE NAVIGATION AND MANAGEMENT OF THE VESSEL.  THE GENERAL
AGENT SHALL PROCURE AND MAKE AVAILABLE TO THE MASTER FOR ENGAGEMENT BY
HIM THE OFFICERS AND MEN REQUIRED BY HIM TO FILL THE COMPLEMENT OF THE
VESSEL.  SUCH OFFICERS AND MEN SHALL BE PROCURED BY THE GENERAL AGENT
THROUGH THE USUAL CHANNELS AND IN ACCORDANCE WITH THE CUSTOMARY
PRACTICES OF COMMERCIAL OPERATORS AND UPON THE TERMS AND CONDITIONS
PREVAILING IN THE PARTICULAR SERVICE OR SERVICES IN WHICH THE VESSELS
ARE TO BE OPERATED FROM TIME TO TIME.  THE OFFICERS AND MEMBERS OF THE
CREW SHALL BE SUBJECT ONLY TO THE ORDERS OF THE MASTER.  ALL SUCH
PERSONS SHALL BE PAID IN THE CUSTOMARY MANNER WITH FUNDS PROVIDED BY
THE UNITED STATES HEREUNDER." 

FN5  41 STAT. 525-26: 

"SEC. 2.  THAT 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 SUCH CORPORATION, AS
THE CASE MAY BE, PROVIDED THAT SUCH VESSEL IS EMPLOYED AS A MERCHANT
VESSEL OR IS A TUG BOAT OPERATED BY SUCH CORPORATION...." 

FN6  FLEET CORP. V. ROSENBERG BROS., 276 U.S. 202; JOHNSON V. FLEET
CORP., 280 U.S. 320. 

FN7  57 STAT. 45-46: 

"THAT (A) OFFICERS AND MEMBERS OF CREWS (HEREINAFTER REFERRED TO AS
'SEAMEN') EMPLOYED ON UNITED STATES OR FOREIGN FLAG VESSELS AS
EMPLOYEES OF THE UNITED STATES THROUGH THE WAR SHIPPING ADMINISTRATION
SHALL, WITH RESPECT TO  ...  (2) DEATH, INJURIES, ILLNESS,  ...  HAVE
ALL OF THE RIGHTS, BENEFITS, EXEMPTIONS, PRIVILEGES, AND LIABILITIES,
UNDER LAW APPLICABLE TO CITIZENS OF THE UNITED STATES EMPLOYED AS
SEAMEN ON PRIVATELY OWNED AND OPERATED AMERICAN VESSELS....  ANY CLAIM
REFERRED TO IN CLAUSE (2) OR (3) HEREOF SHALL, IF ADMINISTRATIVELY
DISALLOWED IN WHOLE OR IN PART, BE ENFORCED PURSUANT TO THE PROVISIONS
OF THE SUITS IN ADMIRALTY ACT, NOTWITHSTANDING THE VESSEL ON WHICH THE
SEAMAN IS EMPLOYED IS NOT A MERCHANT VESSEL WITHIN THE MEANING OF SUCH
ACT.  ANY CLAIM, RIGHT, OR CAUSE OF ACTION OF OR IN RESPECT OF ANY SUCH
SEAMAN ACCRUING ON OR AFTER OCTOBER 1, 1941, AND PRIOR TO THE DATE OF
ENACTMENT OF THIS SECTION MAY BE ENFORCED, AND UPON THE ELECTION OF THE
SEAMAN OR HIS SURVIVING DEPENDENT OR BENEFICIARY, OR HIS LEGAL
REPRESENTATIVE TO DO SO SHALL BE GOVERNED, AS IF THIS SECTION HAD BEEN
IN EFFECT WHEN SUCH CLAIM, RIGHT, OR CAUSE OF ACTION ACCRUED, SUCH
ELECTION TO BE MADE IN ACCORDANCE WITH RULES AND REGULATIONS PRESCRIBED
BY THE ADMINISTRATOR, WAR SHIPPING ADMINISTRATION...." 

FN8 S. REP. NO. 62, 78TH CONG., 1ST SESS.; H. REP. NO. 107, 78TH
CONG., 1ST SESS. 

FN9  THIS PURPOSE IS MADE PLAIN BY A FEW EXCERPTS FROM THE REPORTS. 
S. REP. NO. 62, 78TH CONG., 1ST SESS., PP. 5-6, 11, 14: 

"SEAMEN EMPLOYED AS GOVERNMENT EMPLOYEES ON VESSELS OWNED BY, OR
BAREBOAT-CHARTERED TO, THE WAR SHIPPING ADMINISTRATION ARE SOMETIMES
PRECLUDED FROM ENFORCING AGAINST THE UNITED STATES THE RIGHTS AND
BENEFITS IN CASE OF DEATH, INJURY, ILLNESS, DETENTION, AND SO ON THAT
WOULD BE AVAILABLE TO THEM IF EMPLOYED BY PRIVATE EMPLOYERS, EXCEPT
UNDER THE SUITS IN ADMIRALTY ACT.  IF THEY WERE PRIVATE EMPLOYEES,
RIGHTS TO REDRESS FOR DEATH, INJURY, OR ILLNESS COULD BE PROSECUTED
UNDER THE JONES ACT AND THE GENERAL MARITIME LAW.  THESE SAME RIGHTS
MAY BE ASSERTED AGAINST THE UNITED STATES AS THE EMPLOYER UNDER THE
SUITS IN ADMIRALTY ACT PROVIDING THE VESSEL INVOLVED IS A MERCHANT
VESSEL.  IN CASE OF PUBLIC VESSELS THE SEAMAN MUST RELY FOR
COMPENSATION UPON THE ADMINISTRATOR'S POLICY RECOGNIZING CONTRACTUAL
LIABILITY WHICH THIS LEGISLATION RECOGNIZES.  PRESENT-DAY OPERATING
CONDITIONS OFTEN MAKE UNCERTAIN IN SOME CASES WHETHER THE VESSEL IS A
MERCHANT OR A PUBLIC VESSEL.  AS A CONSEQUENCE, EVEN THOUGH THE VESSELS
ARE GENERALLY MERCHANT VESSELS AND NOT PUBLIC VESSELS, THERE ARE SOME
CASES IN WHICH THE AFOREMENTIONED RIGHTS OF SUCH SEAMEN ARE IN DOUBT. 
IN ADDITION TO THESE RIGHTS WHICH, AT TIMES, ARE UNCERTAIN FOR THE
REASONS MENTIONED, THE SEAMEN WHO ARE EMPLOYEES OF THE UNITED STATES
PROBABLY HAVE RIGHTS UNDER THE UNITED STATES EMPLOYEES' COMPENSATION
ACT IN THE EVENT OF INJURY OR DEATH.  SUCH COMPENSATION BENEFITS ARE
NOT PRESENTLY ENJOYED BY SEAMEN UNDER PRIVATE EMPLOYMENT.  THUS VITAL
DIFFERENCES IN THESE RIGHTS ARE MADE TO DEPEND UPON WHETHER THE SEAMAN
HAPPENS TO BE EMPLOYED ABOARD A VESSEL TIME-CHARTERED TO THE WAR
SHIPPING ADMINISTRATION OR OWNED BY OR BAREBOAT-CHARTERED TO THE WAR
SHIPPING ADMINISTRATION.  SINCE SEAMEN CONSTANTLY CHANGE FROM ONE
VESSEL TO ANOTHER, THEIR RIGHTS FOR DEATH, INJURY, OR ILLNESS ALSO
CONSTANTLY CHANGE, DEPENDING UPON THE RELATIONSHIP OF THE WAR SHIPPING
ADMINISTRATION TO THE VESSEL.  THIS FLUCTUATION AND LACK OF UNIFORMITY
OF RIGHTS LEADS TO DEPENDENCY OF VITAL RIGHTS UPON CHANCE WITH A RESULT
OF CONFUSION AND INEQUITIES.  THE BILL IS DESIGNED TO REMOVE THIS
CONFUSION AND THESE INEQUITIES.  THE BILL DOES NOT AFFECT SEAMEN
EMPLOYED ON VESSELS TIME-CHARTERED TO THE WAR SHIPPING ADMINISTRATION
WHERE THE VESSELS ARE SUPPLIED WITH CREWS EMPLOYED BY THE COMPANY FROM
WHICH THE VESSEL IS CHARTERED.  AS TO THEM THEIR STATUS AND THE STATUS
OF THE GOVERNMENT EMPLOYEES MENTIONED WILL BE MADE UNIFORM. 

     .         .         .         .         . 

"...  THEY WILL CONTINUE TO HAVE THE RIGHT TO INDEMNITY THROUGH COURT
ACTION FOR INJURY RESULTING FROM UNSEAWORTHINESS OF THE VESSEL OR
DEFECTS IN VESSEL APPLIANCES, AND THEY (AND THEIR DEPENDENTS) WILL HAVE
THE RIGHT TO ACTION UNDER THE JONES ACT (1920) FOR INJURY OR DEATH
RESULTING FROM NEGLIGENCE OF THE EMPLOYER.  SUCH SEAMEN WILL HAVE THE
RIGHT TO ENFORCE CLAIMS FOR THESE BENEFITS ACCORDING TO THE PROCEDURE
OF THE SUITS IN ADMIRALTY ACT, EXCEPT THAT CLAIMS WITH RESPECT TO
SOCIAL-SECURITY BENEFITS SHALL BE PROSECUTED IN ACCORDANCE WITH THE
PROCEDURE PROVIDED IN THE SOCIAL-SECURITY LAW.... 

     .      .         .         .         . 

"THE PROVISION OF THE SUITS IN ADMIRALTY ACT THAT SUIT LIES
THEREUNDER ONLY IF THE SHIP INVOLVED IS EMPLOYED AS A MERCHANT VESSEL
OR A TUGBOAT IS WAIVED FOR THE PURPOSES OF SECTION 1 SO THAT THE CLAIM
MAY BE ENFORCED REGARDLESS OF THE NATURE OF THE VESSEL ON WHICH THE
SEAMAN IS SERVING AS AN EMPLOYEE OF THE WAR SHIPPING ADMINISTRATION. 
TO PREVENT UNNECESSARY OR PREMATURE LITIGATION AGAINST THE UNITED
STATES, IT IS REQUIRED THAT BEFORE SUIT THERE SHALL BE AN
ADMINISTRATIVE DISALLOWANCE OF THE SAME IN ACCORD WITH RULES OR
REGULATIONS TO BE PRESCRIBED BY THE ADMINISTRATOR, WAR SHIPPING
ADMINISTRATION." 

H. REP. NO. 107, 78TH CONG., 1ST SESS., PP. 3, 21: 

"THE BASIC SCOPE AND PHILOSOPHY OF THE MEASURE IS TO PRESERVE PRIVATE
RIGHTS OF SEAMEN WHILE UTILIZING THE MERCHANT MARINE TO THE UTMOST FOR
PUBLIC WARTIME BENEFIT.  EXCEPT IN RARE CASES THE SHIPS THEMSELVES ARE
BEING OPERATED AS MERCHANT VESSELS, AND ARE THEREFORE SUBJECT TO THE
SUITS IN ADMIRALTY ACT.  GRANTING SEAMEN RIGHTS TO SUE UNDER THAT ACT
IS THEREFORE ENTIRELY CONSISTENT WITH THE UNDERLYING PATTERN OF THE
MEASURE.  THIS SHOULD FOLLOW EVEN IN THE EXTRAORDINARY CASE WHERE
VESSELS MIGHT OTHERWISE TECHNICALLY BE CLASSED AS PUBLIC VESSELS. 

     .         .         .         .         . 

"THE VARIOUS RIGHTS AND REMEDIES UNDER STATUTE AND GENERAL MARITIME
LAW WITH RESPECT TO DEATH, INJURY, ILLNESS, AND OTHER CASUALTY TO
SEAMEN, HAVE BEEN RATHER FULLY SET FORTH HEREINABOVE.  UNDER CLAUSE 2
OF SECTION 1(A) THESE SUBSTANTIVE RIGHTS WOULD BE GOVERNED BY EXISTING
LAW RELATING TO PRIVATELY EMPLOYED SEAMEN.  THE ONLY MODIFICATION
THEREOF ARISES FROM THE REMEDIAL PROVISION THAT THEY SHALL BE ENFORCED
IN ACCORDANCE WITH THE PROVISIONS OF THE SUITS IN ADMIRALTY ACT.  THIS
PROCEDURE IS APPROPRIATE IN VIEW OF THE FACT THAT THE SUITS WILL BE
AGAINST THE GOVERNMENT OF THE UNITED STATES.  IN SUCH A SUIT NO
PROVISION IS MADE FOR A JURY TRIAL AS MAY OTHERWISE BE HAD IN A
PROCEEDING SUCH AS ONE UNDER THE JONES ACT FOR REASONS SET FORTH IN THE
LETTER OF THE ATTORNEY GENERAL (SEPTEMBER 14, 1942).  THE PROVISION OF
THE SUITS IN ADMIRALTY ACT THAT SUIT LIES THEREUNDER ONLY IF THE SHIP
INVOLVED IS EMPLOYED AS A MERCHANT VESSEL OR A TUGBOAT IS WAIVED FOR
THE PURPOSES OF SECTION 1 SO THAT THE CLAIM MAY BE ENFORCED REGARDLESS
OF THE NATURE OF THE VESSEL ON WHICH THE SEAMAN IS SERVING AS AN
EMPLOYEE OF THE WAR SHIPPING ADMINISTRATION.  TO PREVENT UNNECESSARY OR
PREMATURE LITIGATION AGAINST THE UNITED STATES, IT IS REQUIRED THAT
BEFORE SUIT THERE SHALL BE AN ADMINISTRATIVE DISALLOWANCE OF THE SAME
IN ACCORD WITH RULES OR REGULATIONS TO BE PRESCRIBED BY THE
ADMINISTRATOR, WAR SHIPPING ADMINISTRATION."    THE DESIRABILITY OF A
JURY TRIAL WAS COMMENTED UPON BY A REPRESENTATIVE OF THE NATIONAL
MARITIME UNION AND THE ATTORNEY GENERAL IN REPLY.  SEE HEARINGS ON H.R.
7424, HOUSE COMMITTEE ON MERCHANT MARINE & FISHERIES, 77TH CONG., 2D
SESS., PP. 30-33. 

FN10  S. REP. NO. 62, 78TH CONG., 1ST SESS., P. 13:    "INASMUCH AS
CERTAIN VESSEL OPERATIONS ON ACCOUNT OF THE GOVERNMENT WERE UNDERTAKEN
PRIOR TO THE ESTABLISHMENT OF THE WAR SHIPPING ADMINISTRATION BY OR
THROUGH THE MARITIME COMMISSION, THE PROVISIONS OF SECTION 1 AND ALL
AMENDMENTS THEREIN ARE MADE APPLICABLE TO THE UNITED STATES MARITIME
COMMISSION WITH RESPECT TO THE PERIOD BEGINNING OCTOBER 1, 1941, TO THE
TIME OF TAKING OFFICE OF THE ADMINISTRATOR, WAR SHIPPING ADMINISTRATION
(FEBRUARY 11, 1942).  TO AVOID ADMINISTRATIVE CONFUSION AND UNCERTAINTY
AS TO THE EXACT STATUS OF EMPLOYMENT OF SEAMEN EMPLOYED ON WAR SHIPPING
ADMINISTRATION VESSELS, IT IS PROVIDED THAT SEAMEN EMPLOYED THROUGH
THAT AGENCY SHALL BE INCLUDED UNDER THE PROVISIONS OF SECTION 1 EVEN
THOUGH THE SEAMEN MAY BE EMPLOYED ON A VESSEL CHARTERED OR MADE
AVAILABLE TO ANOTHER DEPARTMENT OR AGENCY OF THE UNITED STATES FOR
PURPOSES OF CONVENIENCE IN THE WAR EFFORT. 

     .         .         .         .         . 

"WITH RESPECT TO SEAMEN ON FOREIGN-FLAG VESSELS, THE REMEDY PROVIDED
BY THIS LEGISLATION IS, OF COURSE, IN SUBSTITUTION FOR REMEDIES THAT
MIGHT EXIST UNDER THE LAWS OF A COUNTRY IN WHICH THE VESSEL MAY BE
DOCUMENTED, AND SEAMEN PROCEEDING UNDER THIS SECTION BY SUCH CHOICE OF
REMEDIES WILL HAVE WAIVED BENEFITS UNDER LAWS OF ANY OTHER COUNTRY THAT
MIGHT OTHERWISE BE AVAILABLE." 

SEE ALSO H. REPORT NO. 107, SUPRA, PP. 21 AND 22. 

FN11  176 ORE.  662, 665, 668-669, 680, 695, 158 P.2D 275, 276, 277
78, 282, 287-88: 

"ON THE TRIAL THE DEFENDANT MOVED FOR A DIRECTED VERDICT ON THE
GROUNDS THAT THE EVIDENCE SHOWED THAT THE PLAINTIFF WAS NOT EMPLOYED BY
IT AND THAT HIS INJURY WAS NOT CAUSED BY ITS NEGLIGENCE.  THE COURT
DENIED THE MOTION, AND IN ITS CHARGE LEFT IT TO THE JURY TO DETERMINE
AS A QUESTION OF FACT WHETHER THE RELATION OF EMPLOYER AND EMPLOYEE
EXISTED BETWEEN DEFENDANT AND PLAINTIFF." 

"THERE IS NO EVIDENCE THAT THE DEFENDANT DID ANYTHING IN CONNECTION
WITH THE BUSINESS OF THE VESSEL NOT CONTEMPLATED BY THE TERMS OF THE
SERVICE AGREEMENT, OR THAT IT EXERCISED OR ATTEMPTED TO EXERCISE ANY
CONTROL OVER THE MASTER OR CREW.  INDEED, THE UNCONTRADICTED EVIDENCE
IS THAT WHEN IT WAS THE DUTY OF THE DEFENDANT TO ASSIST IN THE LOADING
OF THE VESSEL IT ACTED UNDER THE INSTRUCTIONS OF THE MASTER AS TO THE
TIME, PLACE AND METHOD OF LOADING." 

"AS STATED, THE TRIAL JUDGE LEFT TO THE JURY THE QUESTION OF EMPLOYER
EMPLOYEE RELATIONSHIP AS ONE OF FACT.  THE PROPRIETY OF THAT SUBMISSION
IS NOT DEFENDED HERE, AND IT SEEMS TO BE AGREED BY BOTH PARTIES THAT
THE QUESTION IS ONE OF LAW TO BE DETERMINED BY THE COURT.  OF THE
CORRECTNESS OF THIS VIEW WE THINK THERE CAN BE NO DOUBT." 

"WE FIND NO SUCH BASIS OF LIABILITY IN THIS CASE.  THE DEFENDANT WAS
NOT RESPONSIBLE FOR A NEGLIGENT ORDER OF THE BOATSWAIN WHICH SENT THE
PLAINTIFF INTO A PLACE OF DANGER.  THERE IS NO EVIDENCE THAT THE VESSEL
WAS NOT PROPERLY EQUIPPED WHEN IT STARTED ON ITS VOYAGE." 

FN12  SEE REMEDIES OF MERCHANT SEAMEN INJURED ON GOVERNMENT OWNED
VESSELS, 55 YALE LAW JOURNAL 584, 591. 

FN13  "THE WAR SHIPPING ADMINISTRATOR HAS BEEN ADVISED THAT UNDER THE
CONTRACTUAL ARRANGEMENTS MENTIONED ABOVE AND FOR OTHER REASONS, THE
MASTER, OFFICERS AND MEMBERS OF THE CREW OF ALL VESSELS OWNED BY OR
BAREBOAT CHARTERED TO THE WAR SHIPPING ADMINISTRATION ARE EMPLOYEES OF
THE UNITED STATES AND PARTICULARLY OF THE WAR SHIPPING ADMINISTRATION,
AND ARE SO CONSIDERED AND TREATED AT THE PRESENT TIME BY OTHER
GOVERNMENTAL DEPARTMENTS AND AGENCIES FOR THE PURPOSES OF THE CIVIL
SERVICE RETIREMENT ACT, THE UNITED STATES EMPLOYEES' COMPENSATION ACT,
THE FEDERAL SOCIAL SECURITY LAWS, AND THE FEDERAL EMPLOYMENT TAX LAWS. 
FURTHERMORE, THE WAGES OF SUCH PERSONNEL ARE EXEMPT FROM ATTACHMENT AS
GOVERNMENT EMPLOYEES." 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE BURTON JOIN IN THIS DISSENT. 

..END :






KOTTEAKOS V. UNITED STATES, 328 U.S. 750 


ARGUED FEBRUARY 28, 1946.  - DECIDED JUNE 10, 1946.  - 151 F.2D 170,
REVERSED. 


1.  PETITIONER AND 31 OTHERS WERE INDICTED UNDER SEC. 37 OF THE
CRIMINAL CODE FOR A SINGLE GENERAL CONSPIRACY TO VIOLATE THE NATIONAL
HOUSING ACT BY INDUCING LENDING INSTITUTIONS TO MAKE LOANS WHICH WOULD
BE OFFERED TO THE FEDERAL HOUSING ADMINISTRATION FOR INSURANCE ON THE
BASIS OF FALSE AND FRAUDULENT INFORMATION.  NINETEEN DEFENDANTS WERE
BROUGHT TO TRIAL AND THE CASES OF 13 WERE SUBMITTED TO THE JURY.  THE
EVIDENCE PROVED EIGHT OR MORE DIFFERENT CONSPIRACIES BY SEPARATE GROUPS
OF DEFENDANTS WHICH HAD NO CONNECTION WITH EACH OTHER EXCEPT THAT ALL
UTILIZED ONE BROWN AS A BROKER TO HANDLE FRAUDULENT APPLICATIONS. 
EVIDENCE OF DEALINGS BETWEEN BROWN AND DEFENDANTS OTHER THAN PETITIONER
WAS ADMITTED AGAINST PETITIONER; AND THE JUDGE INSTRUCTED THE JURY,
INTER ALIA, THAT ONLY ONE CONSPIRACY WAS CHARGED AND THAT THE ACTS AND
DECLARATIONS OF ONE CONSPIRATOR BOUND ALL.  PETITIONER AND SIX OTHER
DEFENDANTS WERE CONVICTED.  HELD:  THE RIGHTS OF PETITIONER WERE
SUBSTANTIALLY PREJUDICED, WITHIN THE MEANING OF SEC. 269 OF THE
JUDICIAL CODE, AND THE JUDGMENT IS REVERSED.  BERGER V. UNITED STATES,
295 U.S. 78, DISTINGUISHED.  PP. 756, 777. 

2.  IN APPLYING THE "HARMLESS ERROR" RULE OF SEC. 269, IT IS NOT THE
APPELLATE COURT'S FUNCTION TO DETERMINE GUILT OR INNOCENCE NOR TO
SPECULATE UPON PROBABLE RECONVICTION AND DECIDE ACCORDING TO HOW THE
SPECULATION COMES OUT.  P. 763. 

3.  THE QUESTION IS NOT WHETHER THE JURY'S VERDICT WAS RIGHT,
REGARDLESS OF THE ERROR, BUT WHAT EFFECT THE ERROR HAD OR REASONABLY
MAY HAVE HAD UPON THE JURY'S DECISION.  P. 764. 

4.  IF ONE CANNOT SAY, WITH FAIR ASSURANCE, AFTER PONDERING ALL THAT
HAPPENED WITHOUT STRIPPING THE ERRONEOUS ACTION FROM THE WHOLE, THAT
THE JUDGMENT WAS NOT SUBSTANTIALLY SWAYED BY THE ERROR, IT IS
IMPOSSIBLE TO CONCLUDE THAT SUBSTANTIAL RIGHTS WERE NOT AFFECTED.  P.
765. 

5.  WHERE THE JURY COULD NOT POSSIBLY HAVE FOUND, UPON THE EVIDENCE,
THAT THERE WAS ONLY ONE CONSPIRACY, IT WAS ERRONEOUS TO CHARGE THAT,
"IT IS ONE CONSPIRACY, AND THE QUESTION IS WHETHER OR NOT EACH OF THE
DEFENDANTS, OR WHICH OF THE DEFENDANTS, ARE MEMBERS OF THAT
CONSPIRACY."  PP. 767, 768. 

6.  WHERE THE INSTRUCTIONS OBVIOUSLY CONFUSED THE COMMON PURPOSE OF A
SINGLE ENTERPRISE WITH THE PURPOSES OF NUMEROUS SEPARATE ADVENTURES OF
LIKE CHARACTER, IT COULD NOT BE ASSUMED THAT THE JURORS WERE SO WELL
INFORMED UPON THE LAW THAT THEY DISREGARDED THE PERMISSION EXPRESSLY
GIVEN TO IGNORE THAT VITAL DIFFERENCE.  P. 769. 

7.  IN VIEW OF A CHARGE IN THIS CASE THAT THE STATEMENTS AND OVERT
ACTS OF ANY DEFENDANT FOUND TO BE A CONSPIRATOR COULD BE CONSIDERED IN
EVIDENCE AGAINST ALL DEFENDANTS FOUND TO BE MEMBERS OF THE CONSPIRACY,
IT COULD NOT BE CONCLUDED THAT THE JURY CONSIDERED AND WAS INFLUENCED
BY NOTHING EXCEPT THE EVIDENCE SHOWING THAT EACH DEFENDANT SHARED IN
THE FRAUDULENT PHASES OF THE PARTICULAR CONSPIRACY IN WHICH HE
PARTICIPATED.  PP. 770, 771. 

8.  NEITHER CONGRESS, WHEN IT ENACTED SEC. 269, NOR THIS COURT, WHEN
IT DECIDED THE BERGER CASE, INTENDED TO AUTHORIZE THE GOVERNMENT TO
STRING TOGETHER FOR COMMON TRIAL EIGHT OR MORE SEPARATE AND DISTINCT
CONSPIRACIES, RELATED IN KIND THOUGH THEY MAY BE, WHEN THE ONLY NEXUS
AMONG THEM LIES IN THE FACT THAT ONE MAN PARTICIPATED IN ALL.  P. 773. 

9.  THE DANGERS OF TRANSFERENCE OF GUILT FROM ONE TO ANOTHER ACROSS
THE LINE SEPARATING CONSPIRACIES, SUBCONSCIOUSLY OR OTHERWISE, ARE SO
GREAT THAT NO ONE CAN SAY PREJUDICE TO SUBSTANTIAL RIGHT HAS NOT TAKEN
PLACE.  SECTION 269 WAS NOT INTENDED TO GO SO FAR.  P. 774. 

10.  EACH DEFENDANT IN THIS CASE HAD A "SUBSTANTIAL RIGHT" WITHIN THE
MEANING OF SEC. 269 NOT TO BE TRIED EN MASSE FOR A CONGLOMERATION OF
DISTINCT AND SEPARATE OFFENSES COMMITTED BY OTHERS.  P. 775. 

KOTTEAKOS ET AL. V. UNITED STATES. 

NO. 457.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT* . 

*TOGETHER WITH NO. 458, REGENBOGEN V. UNITED STATES, ON CERTIORARI TO
THE SAME COURT, ARGUED AND DECIDED ON THE SAME DATES. 

PETITIONERS WERE CONVICTED UNDER SEC. 37 OF THE CRIMINAL CODE OF
CONSPIRACY TO VIOLATE THE NATIONAL HOUSING ACT.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  151 F.2D 170.  THIS COURT GRANTED CERTIORARI.  326
U.S. 711.  REVERSED, P. 777. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE ONLY QUESTION IS WHETHER PETITIONERS HAVE SUFFERED SUBSTANTIAL
PREJUDICE FROM BEING CONVICTED OF A SINGLE GENERAL CONSPIRACY BY
EVIDENCE WHICH THE GOVERNMENT ADMITS PROVED NOT ONE CONSPIRACY BUT SOME
EIGHT OR MORE DIFFERENT ONES OF THE SAME SORT EXECUTED THROUGH A COMMON
KEY FIGURE, SIMON BROWN.  PETITIONERS WERE CONVICTED UNDER THE GENERAL
CONSPIRACY SECTION OF THE CRIMINAL CODE, 18 U.S.C. SEC. 88, OF
CONSPIRING TO VIOLATE THE PROVISIONS OF THE NATIONAL HOUSING ACT, 12
U.S.C. SECS. 1702, 1703, 1715, 1731.  THE JUDGMENTS WERE AFFIRMED BY
THE CIRCUIT COURT OF APPEALS.  151 F.2D 170.  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE QUESTION FOR THE ADMINISTRATION OF
CRIMINAL JUSTICE IN THE FEDERAL COURTS.  326 U.S. 711. 

THE INDICTMENT NAMED THIRTY-TWO DEFENDANTS, INCLUDING THE
PETITIONERS.  FN1  THE GIST OF THE CONSPIRACY, AS ALLEGED, WAS THAT THE
DEFENDANTS HAD SOUGHT TO INDUCE VARIOUS FINANCIAL INSTITUTIONS TO GRANT
CREDIT, WITH THE INTENT THAT THE LOANS OR ADVANCES WOULD THEN BE
OFFERED TO THE FEDERAL HOUSING ADMINISTRATION FOR INSURANCE UPON
APPLICATIONS CONTAINING FALSE AND FRAUDULENT INFORMATION.  FN2 

OF THE THIRTY-TWO PERSONS NAMED IN THE INDICTMENT NINETEEN WERE
BROUGHT TO TRIAL  FN3  AND THE NAMES OF THIRTEEN WERE SUBMITTED TO THE
JURY.  FN4  TWO WERE ACQUITTED; THE JURY DISAGREED AS TO FOUR; AND THE
REMAINING SEVEN, INCLUDING PETITIONERS, WERE FOUND GUILTY. 

THE GOVERNMENT'S EVIDENCE MAY BE SUMMARIZED BRIEFLY, FOR THE
PETITIONERS HAVE NOT CONTENDED THAT IT WAS INSUFFICIENT, IF CONSIDERED
APART FROM THE ALLEGED ERRORS RELATING TO THE PROOF AND THE
INSTRUCTIONS AT THE TRIAL. 

SIMON BROWN, WHO PLEADED GUILTY, WAS THE COMMON AND KEY FIGURE IN ALL
OF THE TRANSACTIONS PROVEN.  HE WAS PRESIDENT OF THE BROWNIE LUMBER
COMPANY.  HAVING HAD EXPERIENCE IN OBTAINING LOANS UNDER THE NATIONAL
HOUSING ACT, HE UNDERTOOK TO ACT AS BROKER IN PLACING FOR OTHERS LOANS
FOR MODERNIZATION AND RENOVATION, CHARGING A FIVE PER CENT COMMISSION
FOR HIS SERVICES.  BROWN KNEW, WHEN HE OBTAINED THE LOANS, THAT THE
PROCEEDS WERE NOT TO BE USED FOR THE PURPOSES STATED IN THE
APPLICATIONS. 

IN MAY, 1939, PETITIONER LEKACOS TOLD BROWN THAT HE WISHED TO SECURE
A LOAN IN ORDER TO FINANCE OPENING A LAW OFFICE, TO SAY THE LEAST A
HARDLY AUSPICIOUS PROFESSIONAL LAUNCHING.  BROWN MADE OUT THE
APPLICATION, AS DIRECTED BY LEKACOS, TO STATE THAT THE PURPOSE OF THE
LOAN WAS TO MODERNIZE A HOUSE BELONGING TO THE ESTATE OF LEKACOS'
FATHER.  LEKACOS OBTAINED THE MONEY.  LATER IN THE SAME YEAR LEKACOS
SECURED ANOTHER LOAN THROUGH BROWN, THE APPLICATION BEING IN THE NAMES
OF HIS BROTHER AND SISTERIN-LAW.  LEKACOS ALSO RECEIVED PART OF THE
PROCEEDS OF A LOAN FOR WHICH ONE GERAKERIS, A DEFENDANT WHO PLEADED
GUILTY, HAD APPLIED. 

IN JUNE, 1939, LEKACOS SENT BROWN AN APPLICATION FOR A LOAN SIGNED BY
PETITIONER KOTTEAKOS.  IT CONTAINED FALSE STATEMENTS.  FN5  BROWN
PLACED THE LOAN, AND KOTTEAKOS THEREAFTER SENT BROWN APPLICATIONS ON
BEHALF OF OTHER PERSONS.  TWO WERE MADE OUT IN THE NAMES OF FICTITIOUS
PERSONS.  THE PROCEEDS WERE RECEIVED BY KOTTEAKOS AND PETITIONER
REGENBOGEN, HIS PARTNER IN THE CIGARETTE AND PINBALL MACHINE BUSINESS. 
REGENBOGEN, TOGETHER WITH KOTTEAKOS, HAD INDORSED ONE OF THE
APPLICATIONS.  KOTTEAKOS ALSO SENT TO BROWN AN APPLICATION FOR A LOAN
IN REGENBOGEN'S NAME.  THIS WAS FOR MODERNIZATION OF PROPERTY NOT OWNED
BY REGENBOGEN.  THE LATTER, HOWEVER, REPAID THE MONEY IN ABOUT THREE
MONTHS AFTER HE RECEIVED IT. 

THE EVIDENCE AGAINST THE OTHER DEFENDANTS WHOSE CASES WERE SUBMITTED
TO THE JURY WAS SIMILAR IN CHARACTER.  THEY TOO HAD TRANSACTED BUSINESS
WITH BROWN RELATING TO NATIONAL HOUSING ACT LOANS.  BUT NO CONNECTION
WAS SHOWN BETWEEN THEM AND PETITIONERS, OTHER THAN THAT BROWN HAD BEEN
THE INSTRUMENT IN EACH INSTANCE FOR OBTAINING THE LOANS.  IN MANY CASES
THE OTHER DEFENDANTS DID NOT HAVE ANY RELATIONSHIP WITH ONE ANOTHER,
OTHER THAN BROWN'S CONNECTION WITH EACH TRANSACTION.  AS THE CIRCUIT
COURT OF APPEALS SAID, THERE WERE "AT LEAST EIGHT, AND PERHAPS MORE,
SEPARATE AND INDEPENDENT GROUPS, NONE OF WHICH HAD ANY CONNECTION WITH
ANY OTHER, THOUGH ALL DEALT INDEPENDENTLY WITH BROWN AS THEIR AGENT." 
151 F.2D AT 172.  AS THE GOVERNMENT PUTS IT, THE PATTERN WAS "THAT OF
SEPARATE SPOKES MEETING IN A COMMON CENTER," THOUGH, WE MAY ADD,
WITHOUT THE RIM OF THE WHEEL TO ENCLOSE THE SPOKES. 

THE PROOF THEREFORE ADMITTEDLY MADE OUT A CASE, NOT OF A SINGLE
CONSPIRACY, BUT OF SEVERAL, NOTWITHSTANDING ONLY ONE WAS CHARGED IN THE
INDICTMENT.  CF. UNITED STATES V. FALCONE, 311 U.S. 205; UNITED STATES
V. PEONI, 100 F.2D 401; TINSLEY V. UNITED STATES, 43 F.2D 890, 892
893.  THE COURT OF APPEALS APTLY DREW ANALOGY IN THE COMMENT, "THIEVES
WHO DISPOSE OF THEIR LOOT TO A SINGLE RECEIVER - A SINGLE 'FENCE' - DO
NOT BY THAT FACT ALONE BECOME CONFEDERATES:  THEY MAY, BUT IT TAKES
MORE THAN KNOWLEDGE THAT HE IS A 'FENCE' TO MAKE THEM SUCH."  151 F.2D
AT 173.  IT STATED THAT THE TRIAL JUDGE "WAS PLAINLY WRONG IN SUPPOSING
THAT UPON THE EVIDENCE THERE COULD BE A SINGLE CONSPIRACY; AND IN THE
VIEW WHICH HE TOOK OF THE LAW, HE SHOULD HAVE DISMISSED THE
INDICTMENT."  151 F.2D AT 172.  NEVERTHELESS THE APPELLATE COURT HELD
THE ERROR NOT PREJUDICIAL, SAYING AMONG OTHER THINGS THAT "ESPECIALLY
SINCE GUILT WAS SO MANIFEST, IT WAS 'PROPER' TO JOIN THE CONSPIRACIES,"
AND "TO REVERSE THE CONVICTION WOULD BE A MISCARRIAGE OF JUSTICE."  FN6
THIS IS INDEED THE GOVERNMENT'S ENTIRE POSITION.  IT DOES NOT NOW
CONTEND THAT THERE WAS NO VARIANCE IN PROOF FROM THE SINGLE CONSPIRACY
CHARGED IN THE INDICTMENT.  ADMITTING THAT SEPARATE AND DISTINCT
CONSPIRACIES WERE SHOWN, IT URGES THAT THE VARIANCE WAS NOT PREJUDICIAL
TO THE PETITIONERS. 

IN BERGER V. UNITED STATES, 295 U.S. 78, THIS COURT HELD THAT IN THE
CIRCUMSTANCES PRESENTED THE VARIANCE WAS NOT FATAL WHERE ONE CONSPIRACY
WAS CHARGED AND TWO WERE PROVED, RELATING TO CONTEMPORANEOUS
TRANSACTIONS INVOLVING COUNTERFEIT MONEY.  ONE OF THE CONSPIRACIES HAD
TWO PARTICIPANTS; THE OTHER HAD THREE; AND ONE DEFENDANT, KATZ, WAS
COMMON TO EACH.  FN7  "THE TRUE INQUIRY," SAID THE COURT, "IS NOT
WHETHER THERE HAS BEEN A VARIANCE IN PROOF, BUT WHETHER THERE HAS BEEN
SUCH A VARIANCE AS TO 'AFFECT THE SUBSTANTIAL RIGHTS' OF THE ACCUSED." 
295 U.S. AT 82. 

THE COURT HELD THE VARIANCE NOT FATAL,  FN8  RESTING ITS RULING ON
WHAT HAS BECOME KNOWN AS "THE HARMLESS ERROR STATUTE," SEC. 269 OF THE
JUDICIAL CODE, AS AMENDED (28 U.S.C. SEC. 391), WHICH IS CONTROLLING IN
THIS CASE AND PROVIDES: 

"ON THE HEARING OF ANY APPEAL, CERTIORARI, WRIT OF ERROR, OR MOTION
FOR A NEW TRIAL, IN ANY CASE, CIVIL OR CRIMINAL, THE COURT SHALL GIVE
JUDGMENT AFTER AN EXAMINATION OF THE ENTIRE RECORD BEFORE THE COURT,
WITHOUT REGARD TO TECHNICAL ERRORS, DEFECTS, OR EXCEPTIONS WHICH DO NOT
AFFECT THE SUBSTANTIAL RIGHTS OF THE PARTIES."  FN9 

APPLYING THAT SECTION, THE COURT LIKENED THE SITUATION TO ONE WHERE
THE FOUR PERSONS IMPLICATED IN THE TWO CONSPIRACIES HAD BEEN CHARGED AS
CONSPIRATORS IN SEPARATE COUNTS, BUT WITH A FAILURE IN THE PROOF TO
CONNECT ONE OF THEM (BERGER) WITH ONE OF THE CONSPIRACIES, AND A
RESULTING CONVICTION UNDER ONE COUNT AND ACQUITTAL UNDER THE OTHER.  IN
THAT EVENT, THE COURT SAID, "PLAINLY ENOUGH, HIS SUBSTANTIAL RIGHTS
WOULD NOT HAVE BEEN AFFECTED."  THE SITUATION SUPPOSED AND THE ONE
ACTUALLY PRESENTED, THE OPINION STATED, THOUGH DIFFERING GREATLY IN
FORM, WERE NOT DIFFERENT IN SUBSTANCE.  THE PROOF RELATING TO THE
CONSPIRACY WITH WHICH BERGER HAD NOT BEEN CONNECTED COULD BE REGARDED
AS INCOMPETENT AS TO HIM.  BUT NOTHING IN THE FACTS, IT WAS CONCLUDED,
COULD REASONABLY BE SAID TO SHOW THAT PREJUDICE OR SURPRISE RESULTED;
AND THE COURT WENT ON TO SAY, "CERTAINLY THE FACT THAT THE PROOF
DISCLOSED TWO CONSPIRACIES INSTEAD OF ONE, EACH WITHIN THE WORDS OF THE
INDICTMENT, CANNOT PREJUDICE HIS DEFENSE OF FORMER ACQUITTAL OF THE ONE
OR FORMER CONVICTION OF THE OTHER, IF HE SHOULD AGAIN BE PROSECUTED." 
295 U.S. AT 83. 

THE QUESTION WE HAVE TO DETERMINE IS WHETHER THE SAME RULING MAY BE
EXTENDED TO A SITUATION IN WHICH ONE CONSPIRACY ONLY IS CHARGED AND AT
LEAST EIGHT HAVING SEPARATE, THOUGH SIMILAR OBJECTS, ARE MADE OUT BY
THE EVIDENCE, IF BELIEVED; AND IN WHICH THE MORE NUMEROUS PARTICIPANTS
IN THE DIFFERENT SCHEMES WERE, ON THE WHOLE, EXCEPT FOR ONE, DIFFERENT
PERSONS WHO DID NOT KNOW OR HAVE ANYTHING TO DO WITH ONE ANOTHER. 

THE SALUTARY POLICY EMBODIED IN SEC. 269 WAS ADOPTED BY THE CONGRESS
IN 1919(ACT OF FEBRUARY 26, 1919, C. 48, 40 STAT. 1181) AFTER LONG
AGITATION UNDER DISTINGUISHED PROFESSIONAL SPONSORSHIP, FN10  AND AFTER
THOROUGH CONSIDERATION OF VARIOUS PROPOSALS DESIGNED TO ENACT THE
POLICY IN SUCCESSIVE CONGRESSES FROM THE SIXTIETH TO THE SIXTY-FIFTH. 
FN11  IT IS NOT NECESSARY TO REVIEW IN DETAIL THE HISTORY OF THE ABUSES
WHICH LED TO THE AGITATION OR OF THE PROGRESS OF THE LEGISLATION
THROUGH THE VARIOUS SESSIONS TO FINAL ENACTMENT WITHOUT DEBATE.  56
CONG. REC. 11586; 57 CONG. REC. 3605.  BUT ANYONE FAMILIAR WITH IT
KNOWS THAT SEC. 269 AND SIMILAR STATE LEGISLATION FN12  GREW OUT OF
WIDESPREAD AND DEEP CONVICTION OVER THE GENERAL COURSE OF APPELLATE
REVIEW IN AMERICAN CRIMINAL CAUSES.  THIS WAS SHORTLY, AS ONE TRIAL
JUDGE PUT IT AFTER SEC. 269 HAD BECOME LAW, THAT COURTS OF REVIEW
"TOWER ABOVE THE TRIALS OF CRIMINAL CASES AS IMPREGNABLE CITADELS OF
TECHNICALITY."  FN13  SO GREAT WAS THE THREAT OF REVERSAL, IN MANY
JURISDICTIONS, THAT CRIMINAL TRIAL BECAME A GAME FOR SOWING REVERSIBLE
ERROR IN THE RECORD, ONLY TO HAVE REPEATED THE SAME MATCHING OF WITS
WHEN A NEW TRIAL HAD BEEN THUS OBTAINED. 

IN THE BROAD ATTACK ON THIS SYSTEM GREAT LEGAL NAMES WERE MOBILIZED,
AMONG THEM TAFT, WIGMORE, POUND AND HADLEY, TO MENTION ONLY FOUR.  FN14
THE GENERAL OBJECT WAS SIMPLE:  TO SUBSTITUTE JUDGMENT FOR AUTOMATIC
APPLICATION OF RULES; TO PRESERVE REVIEW AS A CHECK UPON ARBITRARY
ACTION AND ESSENTIAL UNFAIRNESS IN TRIALS, BUT AT THE SAME TIME TO MAKE
THE PROCESS PERFORM THAT FUNCTION WITHOUT GIVING MEN FAIRLY CONVICTED
THE MULTIPLICITY OF LOOPHOLES WHICH ANY HIGHLY RIGID AND MINUTELY
DETAILED SCHEME OF ERRORS, ESPECIALLY IN RELATION TO PROCEDURE, WILL
ENGENDER AND REFLECT IN A PRINTED RECORD. 

THE TASK WAS TOO BIG, TOO VARIOUS IN DETAIL, FOR PARTICULARIZED
TREATMENT.  CF. BRUNO V. UNITED STATES, 308 U.S. 287, 293.  THE EFFORT
AT REVISION THEREFORE TOOK THE FORM OF THE ESSENTIALLY SIMPLE COMMAND
OF SEC. 269.  IT COMES DOWN ON ITS FACE TO A VERY PLAIN ADMONITION:
"DO NOT BE TECHNICAL, WHERE TECHNICALITY DOES NOT REALLY HURT THE PARTY
WHOSE RIGHTS IN THE TRIAL AND IN ITS OUTCOME THE TECHNICALITY
AFFECTS."  IT IS ALSO IMPORTANT TO NOTE THAT THE PURPOSE OF THE BILL IN
ITS FINAL FORM WAS STATED AUTHORITATIVELY TO BE "TO CAST UPON THE PARTY
SEEKING A NEW TRIAL THE BURDEN OF SHOWING THAT ANY TECHNICAL ERRORS
THAT HE MAY COMPLAIN OF HAVE AFFECTED HIS SUBSTANTIAL RIGHTS, OTHERWISE
THEY ARE TO BE DISREGARDED."  H.R. REP. NO. 913, 65TH CONG., 3D SESS.,
1.  BUT THAT THIS BURDEN DOES NOT EXTEND TO ALL ERRORS APPEARS FROM THE
STATEMENT WHICH FOLLOWS IMMEDIATELY.  "THE PROPOSED LEGISLATION AFFECTS
ONLY TECHNICAL ERRORS.  IF THE ERROR IS OF SUCH A CHARACTER THAT ITS
NATURAL EFFECT IS TO PREJUDICE A LITIGANT'S SUBSTANTIAL RIGHTS, THE
BURDEN OF SUSTAINING A VERDICT WILL, NOTWITHSTANDING THIS LEGISLATION
REST UPON THE ONE WHO CLAIMS UNDER IT."  IBID.; BRUNO V. UNITED STATES,
SUPRA, AT 294; WEILER V. UNITED STATES, 323 U.S. 606, 611. 

EASIER WAS THE COMMAND TO MAKE THAN IT HAS BEEN ALWAYS TO OBSERVE. 
THIS, IN PART BECAUSE IT IS GENERAL; BUT IN PART ALSO BECAUSE THE
DISCRIMINATION IT REQUIRES IS ONE OF JUDGMENT TRANSCENDING CONFINEMENT
BY FORMULA OR PRECISE RULE.  UNITED STATES V. SOCONY-VACUUM OIL CO.,
310 U.S. 150, 240.  THAT FACULTY CANNOT EVER BE WHOLLY IMPRISONED IN
WORDS, MUCH LESS UPON SUCH A CRITERION AS WHAT ARE ONLY TECHNICAL, WHAT
SUBSTANTIAL RIGHTS; AND WHAT REALLY AFFECTS THE LATTER HURTFULLY. 
JUDGMENT, THE PLAY OF IMPRESSION AND CONVICTION ALONG WITH
INTELLIGENCE, VARIES WITH JUDGES AND ALSO WITH CIRCUMSTANCE.  WHAT MAY
BE TECHNICAL FOR ONE IS SUBSTANTIAL FOR ANOTHER; WHAT MINOR AND
UNIMPORTANT IN ONE SETTING CRUCIAL IN ANOTHER. 

MOREOVER, LAWYERS KNOW, IF OTHERS DO NOT, THAT WHAT MAY SEEM
TECHNICAL MAY EMBODY A GREAT TRADITION OF JUSTICE, WEILER V. UNITED
STATES, SUPRA, OR A NECESSITY FOR DRAWING LINES SOMEWHERE BETWEEN GREAT
AREAS OF LAW; THAT, IN OTHER WORDS, ONE CANNOT ALWAYS SEGREGATE THE
TECHNIQUE FROM THE SUBSTANCE OR THE FORM FROM THE REALITY.  IT IS OF
COURSE HIGHLY TECHNICAL TO CONFER FULL LEGAL STATUS UPON ONE WHO HAS
JUST ATTAINED HIS MAJORITY, BUT DENY IT TO ANOTHER A DAY, A WEEK OR A
MONTH YOUNGER.  YET THAT NARROW LINE, AND MANY OTHERS LIKE IT, MUST BE
DRAWN.  THE "HEARSAY" RULE IS OFTEN GROSSLY ARTIFICIAL.  AGAIN IN A
DIFFERENT CONTEXT IT MAY BE THE VERY ESSENCE OF JUSTICE, KEEPING OUT
GOSSIP, RUMOR, UNFOUNDED REPORT, SECOND, THIRD, OR FURTHER HAND
STORIES.    ALL THIS HARDLY NEEDS TO BE SAID AGAIN.  BUT IT MUST BE
COMPREHENDED AND ADMINISTERED EVERY DAY.  THE TASK IS NOT SIMPLE,
ALTHOUGH THE ADMONITION IS.  NEITHER IS IT IMPOSSIBLE.  BY ITS VERY
NATURE NO STANDARD OF PERFECTION CAN BE ATTAINED.  BUT ONE OF FAIR
APPROXIMATION CAN BE ACHIEVED.  ESSENTIALLY THE MATTER IS ONE FOR
EXPERIENCE TO WORK OUT.  FOR, AS WITH ALL LINES WHICH MUST BE DRAWN
BETWEEN POSITIVE AND NEGATIVE FIELDS OF LAW, THE PRECISE BORDER MAY BE
INDISTINCT, BUT CASE BY CASE DETERMINATION OF PARTICULAR POINTS ADDS UP
IN TIME TO DISCERNIBLE DIRECTION. 

IN THE FINAL ANALYSIS JUDGMENT IN EACH CASE MUST BE INFLUENCED BY
CONVICTION RESULTING FROM EXAMINATION OF THE PROCEEDINGS IN THEIR
ENTIRETY, TEMPERED BUT NOT GOVERNED IN ANY RIGID SENSE OF STARE DECISIS
BY WHAT HAS BEEN DONE IN SIMILAR SITUATIONS.  CF. UNITED STATES V.
SOCONY-VACUUM OIL CO., SUPRA, AT 240-242.  NECESSARILY THE CHARACTER OF
THE PROCEEDING, WHAT IS AT STAKE UPON ITS OUTCOME, AND THE RELATION OF
THE ERROR ASSERTED TO CASTING THE BALANCE FOR DECISION ON THE CASE AS A
WHOLE, ARE MATERIAL FACTORS IN JUDGMENT. 

THE STATUTE IN TERMS MAKES NO DISTINCTION BETWEEN CIVIL AND CRIMINAL
CAUSES.  BUT THIS DOES NOT MEAN THAT THE SAME CRITERIA SHALL ALWAYS BE
APPLIED REGARDLESS OF THIS DIFFERENCE.  INDEED THE LEGISLATIVE HISTORY
SHOWS THAT THE PROPOSED LEGISLATION WENT THROUGH MANY REVISIONS,
LARGELY AT THE INSTANCE OF THE SENATE,  FN15  BECAUSE THERE WAS FEAR OF
TOO EASY RELAXATION OF HISTORIC SECURITIES THROWN AROUND THE CITIZEN
CHARGED WITH CRIME.  ALTHOUGH THE FINAL FORM OF THE LEGISLATION WAS
DESIGNED, AND FREQUENTLY HAS BEEN EFFECTIVE,  FN16  TO AVOID SOME OF
THE ABSURDITIES BY WHICH SKILFUL MANIPULATION OF PROCEDURAL RULES HAD
ENABLED THE GUILTY TO ESCAPE JUST PUNISHMENT, SEC. 269 DID NOT MAKE
IRRELEVANT THE FACT THAT A PERSON IS ON TRIAL FOR HIS LIFE OR HIS
LIBERTY.  IT DID NOT REQUIRE THE SAME JUDGMENT IN SUCH A CASE AS IN ONE
INVOLVING ONLY SOME QUESTION OF CIVIL LIABILITY.  THERE WAS NO PURPOSE,
FOR INSTANCE, TO ABOLISH THE HISTORIC DIFFERENCE BETWEEN CIVIL AND
CRIMINAL CAUSES RELATING TO THE BURDEN OF PROOF PLACED IN THE ONE UPON
THE PLAINTIFF AND IN THE OTHER ON THE PROSECUTION.  NOR DOES SEC. 269
MEAN THAT AN ERROR IN RECEIVING OR EXCLUDING EVIDENCE HAS IDENTICAL
EFFECTS, FOR PURPOSES OF APPLYING ITS POLICY, REGARDLESS OF WHETHER THE
EVIDENCE IN OTHER RESPECTS IS EVENLY BALANCED OR ONE-SIDED.  ERRORS OF
THIS SORT IN CRIMINAL CAUSES CONCEIVABLY MAY BE ALTOGETHER HARMLESS IN
THE FACE OF OTHER CLEAR EVIDENCE, ALTHOUGH THE SAME ERROR MIGHT TURN
SCALES OTHERWISE LEVEL, AS CONSTANTLY APPEARS IN THE APPLICATION OF THE
POLICY OF SEC. 269 TO QUESTIONS OF THE ADMISSION OF CUMULATIVE
EVIDENCE.  FN17 SO IT IS WITH ERRORS IN INSTRUCTIONS TO THE JURY.  CF.
UNITED STATES V. SOCONY-VACUUM OIL CO., SUPRA, AT 239, 241. 

SOME AIDS TO RIGHT JUDGMENT MAY BE STATED MORE SAFELY IN NEGATIVE
THAN IN AFFIRMATIVE FORM.  THUS, IT IS NOT THE APPELLATE COURT'S
FUNCTION TO DETERMINE GUILT OR INNOCENCE.  WEILER V. UNITED STATES,
SUPRA, AT 611; BOLLENBACH V. UNITED STATES, 326 U.S. 607, 613-614.  NOR
IS IT TO SPECULATE UPON PROBABLE RECONVICTION AND DECIDE ACCORDING TO
HOW THE SPECULATION COMES OUT.  APPELLATE JUDGES CANNOT ESCAPE SUCH
IMPRESSIONS.  BUT THEY MAY NOT MAKE THEM SOLE CRITERIA FOR REVERSAL OR
AFFIRMANCE.  THOSE JUDGMENTS ARE EXCLUSIVELY FOR THE JURY, GIVEN ALWAYS
THE NECESSARY MINIMUM EVIDENCE LEGALLY SUFFICIENT TO SUSTAIN THE
CONVICTION UNAFFECTED BY THE ERROR.  FN18  WEILER V. UNITED STATES,
SUPRA; BOLLENBACH V. UNITED STATES, SUPRA. 

BUT THIS DOES NOT MEAN THAT THE APPELLATE COURT CAN ESCAPE ALTOGETHER
TAKING ACCOUNT OF THE OUTCOME.  TO WEIGH THE ERROR'S EFFECT AGAINST THE
ENTIRE SETTING OF THE RECORD WITHOUT RELATION TO THE VERDICT OR
JUDGMENT WOULD BE ALMOST TO WORK IN A VACUUM.  CF. UNITED STATES V.
SOCONY-VACUUM OIL CO., SUPRA, AT 239, 242.  IN CRIMINAL CAUSES THAT
OUTCOME IS CONVICTION.  THIS IS DIFFERENT, OR MAY BE, FROM GUILT IN
FACT.  IT IS GUILT IN LAW, ESTABLISHED BY THE JUDGMENT OF LAYMEN.  AND
THE QUESTION IS, NOT WERE THEY RIGHT IN THEIR JUDGMENT, REGARDLESS OF
THE ERROR OR ITS EFFECT UPON THE VERDICT.  IT IS RATHER WHAT EFFECT THE
ERROR HAD OR REASONABLY MAY BE TAKEN TO HAVE HAD UPON THE JURY'S
DECISION.  THE CRUCIAL THING IS THE IMPACT OF THE THING DONE WRONG ON
THE MINDS OF OTHER MEN, NOT ON ONE'S OWN, IN THE TOTAL SETTING.  CF.
UNITED STATES V. SOCONY-VACUUM OIL CO., SUPRA, AT 239, 242; BOLLENBACH
V. UNITED STATES, SUPRA, 614. 

THIS MUST TAKE ACCOUNT OF WHAT THE ERROR MEANT TO THEM, NOT SINGLED
OUT AND STANDING ALONE, BUT IN RELATION TO ALL ELSE THAT HAPPENED.  AND
ONE MUST JUDGE OTHERS' REACTIONS NOT BY HIS OWN, BUT WITH ALLOWANCE FOR
HOW OTHERS MIGHT REACT AND NOT BE REGARDED GENERALLY AS ACTING WITHOUT
REASON.  THIS IS THE IMPORTANT DIFFERENCE, BUT ONE EASY TO IGNORE WHEN
THE SENSE OF GUILT COMES STRONGLY FROM THE RECORD. 

IF, WHEN ALL IS SAID AND DONE, THE CONVICTION IS SURE THAT THE ERROR
DID NOT INFLUENCE THE JURY, OR HAD BUT VERY SLIGHT EFFECT, THE VERDICT
AND THE JUDGMENT SHOULD STAND, EXCEPT PERHAPS WHERE THE DEPARTURE IS
FROM A CONSTITUTIONAL NORM  FN19  OR A SPECIFIC COMMAND OF CONGRESS. 
BRUNO V. UNITED STATES, SUPRA, AT 294.  BUT IF ONE CANNOT SAY, WITH
FAIR ASSURANCE, AFTER PONDERING ALL THAT HAPPENED WITHOUT STRIPPING THE
ERRONEOUS ACTION FROM THE WHOLE, THAT THE JUDGMENT WAS NOT
SUBSTANTIALLY SWAYED BY THE ERROR, IT IS IMPOSSIBLE TO CONCLUDE THAT
SUBSTANTIAL RIGHTS WERE NOT AFFECTED.  THE INQUIRY CANNOT BE MERELY
WHETHER THERE WAS ENOUGH TO SUPPORT THE RESULT, APART FROM THE PHASE
AFFECTED BY THE ERROR.  IT IS RATHER, EVEN SO, WHETHER THE ERROR ITSELF
HAD SUBSTANTIAL INFLUENCE.  IF SO, OR IF ONE IS LEFT IN GRAVE DOUBT,
THE CONVICTION CANNOT STAND. 

DISCUSSION, SOME OF IT RECENT,  FN20  HAS UNDERTAKEN TO FORMULATE THE
PROBLEM IN TERMS OF PRESUMPTIONS.  IN VIEW OF THE STATEMENT QUOTED
ABOVE FROM THE HOUSE COMMITTEE'S REPORT, IT WOULD SEEM THAT ANY ATTEMPT
TO CREATE A GENERALIZED PRESUMPTION TO APPLY IN ALL CASES WOULD BE
CONTRARY NOT ONLY TO THE SPIRIT OF SEC. 269 BUT ALSO TO THE EXPRESSED
INTENT OF ITS LEGISLATIVE SPONSORS.  INDEED, ACCORDING TO THEIR
EXPLICIT STATEMENT, WHETHER THE BURDEN OF ESTABLISHING THAT THE ERROR
AFFECTED SUBSTANTIAL RIGHTS OR, CONVERSELY, THE BURDEN OF SUSTAINING
THE VERDICT SHALL BE IMPOSED, TURNS ON WHETHER THE ERROR IS "TECHNICAL"
OR IS SUCH THAT "ITS NATURAL EFFECT IS TO PREJUDICE A LITIGANT'S
SUBSTANTIAL RIGHTS."  INDEED THE STATEMENT, IN ENTIRE ACCORD WITH THE
LETTER AND SPIRIT OF SEC. 269, IS AN INJUNCTION AGAINST ATTEMPTING TO
GENERALIZE BROADLY, BY PRESUMPTION OR OTHERWISE.  THE ONLY PERMISSIBLE
PRESUMPTION WOULD SEEM TO BE PARTICULAR, ARISING FROM THE NATURE OF THE
ERROR AND "ITS NATURAL EFFECT" FOR OR AGAINST PREJUDICE IN THE
PARTICULAR SETTING. 

IT FOLLOWS THAT THE BERGER CASE IS NOT CONTROLLING OF THIS ONE,
NOTWITHSTANDING THAT, ABSTRACTLY CONSIDERED, THE ERRORS IN VARIANCE AND
INSTRUCTIONS  FN21  WERE IDENTICAL IN CHARACTER.  THE BERGER OPINION
INDEED EXPRESSLY DECLARED: "WE DO NOT MEAN TO SAY THAT A VARIANCE SUCH
AS THAT HERE DEALT WITH MIGHT NOT BE MATERIAL IN A DIFFERENT CASE.  WE
SIMPLY HOLD, FOLLOWING THE VIEW OF THE COURT BELOW, THAT APPLYING SEC.
269 OF THE JUDICIAL CODE, AS AMENDED, TO THE CIRCUMSTANCES OF THIS CASE
THE VARIANCE WAS NOT PREJUDICIAL AND HENCE NOT FATAL."  295 U.S. AT
83. 

ON THE FACE OF THINGS IT IS ONE THING TO HOLD HARMLESS THE ADMISSION
OF EVIDENCE WHICH TOOK PLACE IN THE BERGER CASE, WHERE ONLY TWO
CONSPIRACIES INVOLVING FOUR PERSONS ALL TOLD WERE PROVED, AND AN
ENTIRELY DIFFERENT THING TO APPLY THE SAME RULE WHERE, AS HERE, ONLY
ONE CONSPIRACY WAS CHARGED, BUT EIGHT SEPARATE ONES WERE PROVED,
INVOLVING AT THE OUTSET THIRTY-TWO DEFENDANTS.  THE ESSENTIAL
DIFFERENCE IS NOT OVERCOME BY THE FACT THAT THE THIRTY-TWO WERE
REDUCED, BY SEVERANCE, DISMISSAL OR PLEAS OF GUILTY, TO NINETEEN WHEN
THE TRIAL BEGAN AND TO THIRTEEN BY THE TIME THE CASES WENT TO THE
JURY.  THE SHEER DIFFERENCE IN NUMBERS, BOTH OF DEFENDANTS AND OF
CONSPIRACIES PROVEN, DISTINGUISHES THE SITUATION.  OBVIOUSLY THE BURDEN
OF DEFENSE TO A DEFENDANT, CONNECTED WITH ONE OR A FEW OF SO MANY
DISTINCT TRANSACTIONS, IS VASTLY DIFFERENT NOT ONLY IN PREPARATION FOR
TRIAL, BUT ALSO IN LOOKING OUT FOR AND SECURING SAFEGUARD AGAINST
EVIDENCE AFFECTING OTHER DEFENDANTS, TO PREVENT ITS TRANSFERENCE AS
"HARMLESS ERROR" OR BY PSYCHOLOGICAL EFFECT, IN SPITE OF INSTRUCTIONS
FOR KEEPING SEPARATE TRANSACTIONS SEPARATE. 

THE GOVERNMENT'S THEORY SEEMS TO BE, IN ULTIMATE LOGICAL REACH, THAT
THE ERROR PRESENTED BY THE VARIANCE IS INSUBSTANTIAL AND HARMLESS, IF
THE EVIDENCE OFFERED SPECIFICALLY AND PROPERLY TO CONVICT EACH
DEFENDANT WOULD BE SUFFICIENT TO SUSTAIN HIS CONVICTION, IF SUBMITTED
IN A SEPARATE TRIAL.  FOR REASONS WE HAVE STATED AND IN VIEW OF THE
AUTHORITIES CITED, THIS IS NOT AND CANNOT BE THE TEST UNDER SEC. 269. 
BUT IN APPARENT SUPPORT OF ITS VIEW THE GOVERNMENT ARGUES THAT THERE
WAS NO PREJUDICE HERE BECAUSE THE RESULTS SHOW THAT THE JURY EXERCISED
DISCRIMINATION AS AMONG THE DEFENDANTS WHOSE CASES WERE SUBMITTED TO
IT.  AS IT POINTS OUT, THE JURY ACQUITTED SOME, DISAGREED AS TO OTHERS,
AND FOUND STILL OTHERS GUILTY.  FROM THIS IT CONCLUDES THAT THE JURY
WAS NOT CONFUSED AND, APPARENTLY, REACHED THE SAME RESULT AS WOULD HAVE
BEEN REACHED OR WOULD BE LIKELY, IF THE CONVICTED DEFENDANTS HAD BEEN
OR NOW SHOULD BE TRIED SEPARATELY. 

ONE DIFFICULTY WITH THIS IS THAT THE TRIAL COURT ITSELF WAS CONFUSED
IN THE CHARGE WHICH IT GAVE TO GUIDE THE JURY IN DELIBERATION.  THE
COURT INSTRUCTED: 

"THE INDICTMENT CHARGES BUT ONE CONSPIRACY, AND TO CONVICT EACH OF
THE DEFENDANTS OF A CONSPIRACY THE GOVERNMENT WOULD HAVE TO PROVE, AND
YOU WOULD HAVE TO FIND, THAT EACH OF THE DEFENDANTS WAS A MEMBER OF
THAT CONSPIRACY.  YOU CANNOT DIVIDE IT UP.  IT IS ONE CONSPIRACY, AND
THE QUESTION IS WHETHER OR NOT EACH OF THE DEFENDANTS, OR WHICH OF THE
DEFENDANTS, ARE MEMBERS OF THAT CONSPIRACY." 

ON ITS FACE, AS THE COURT OF APPEALS SAID, THIS PORTION OF THE CHARGE
WAS PLAINLY WRONG IN APPLICATION TO THE PROOF MADE; AND THE ERROR
PERVADED THE ENTIRE CHARGE, NOT MERELY THE PORTION QUOTED.  FN22  THE
JURY COULD NOT POSSIBLY HAVE FOUND, UPON THE EVIDENCE, THAT THERE WAS
ONLY ONE CONSPIRACY.  THE TRIAL COURT WAS OF THE VIEW THAT ONE
CONSPIRACY WAS MADE OUT BY SHOWING THAT EACH DEFENDANT WAS LINKED TO
BROWN IN ONE OR MORE TRANSACTIONS, AND THAT IT WAS POSSIBLE ON THE
EVIDENCE FOR THE JURY TO CONCLUDE THAT ALL WERE IN A COMMON ADVENTURE
BECAUSE OF THIS FACT AND THE SIMILARITY OF PURPOSE PRESENTED IN THE
VARIOUS APPLICATIONS FOR LOANS.  FN23 

THIS VIEW, SPECIFICALLY EMBODIED THROUGHOUT THE INSTRUCTIONS,
OBVIOUSLY CONFUSES THE COMMON PURPOSE OF A SINGLE ENTERPRISE WITH THE
SEVERAL, THOUGH SIMILAR, PURPOSES OF NUMEROUS SEPARATE ADVENTURES OF
LIKE CHARACTER.  IT MAY BE THAT, NOTWITHSTANDING THE MISDIRECTION, THE
JURY ACTUALLY UNDERSTOOD CORRECTLY THE PURPORT OF THE EVIDENCE, AS THE
GOVERNMENT NOW CONCEDES IT TO HAVE BEEN; AND CAME TO THE CONCLUSION
THAT THE PETITIONERS WERE GUILTY ONLY OF THE SEPARATE CONSPIRACIES IN
WHICH THE PROOF SHOWS THEY RESPECTIVELY PARTICIPATED.  BUT, IN THE FACE
OF THE MISDIRECTION AND IN THE CIRCUMSTANCES OF THIS CASE, WE CANNOT
ASSUME THAT THE LAY TRIERS OF FACT WERE SO WELL INFORMED UPON THE LAW
OR THAT THEY DISREGARDED THE PERMISSION EXPRESSLY GIVEN TO IGNORE THAT
VITAL DIFFERENCE.  BOLLENBACH V. UNITED STATES, SUPRA, 613. 

AS WE HAVE SAID, THE ERROR PERMEATED THE ENTIRE CHARGE, INDEED THE
ENTIRE TRIAL.  NOT ONLY DID IT PERMIT THE JURY TO FIND EACH DEFENDANT
GUILTY OF CONSPIRING WITH THIRTY-FIVE N24 OTHER POTENTIAL CO
CONSPIRATORS, OR ANY LESS NUMBER AS THE PROOF MIGHT TURN OUT FOR
ACQUITTAL OF SOME, WHEN NONE OF THE EVIDENCE WOULD SUPPORT SUCH A
CONVICTION, AS THE PROOF DID TURN OUT IN FACT.  IT HAD OTHER EFFECTS. 
ONE WAS TO PREVENT THE COURT FROM GIVING A PRECAUTIONARY INSTRUCTION
SUCH AS WOULD BE APPROPRIATE, PERHAPS REQUIRED, IN CASES WHERE RELATED
BUT SEPARATE CONSPIRACIES ARE TRIED TOGETHER UNDER SEC. 557 OF THE
CODE,  FN25  NAMELY, THAT THE JURY SHOULD TAKE CARE TO CONSIDER THE
EVIDENCE RELATING TO EACH CONSPIRACY SEPARATELY FROM THAT RELATING TO
EACH OTHER CONSPIRACY CHARGED.  FN26  THE COURT HERE WAS CAREFUL TO
CAUTION THE JURY TO CONSIDER EACH DEFENDANT'S CASE SEPARATELY, IN
DETERMINING HIS PARTICIPATION IN "THE SCHEME" CHARGED.  BUT THIS
OBVIOUSLY DOES NOT, AND COULD NOT, GO TO KEEPING DISTINCT CONSPIRACIES
DISTINCT, IN VIEW OF THE COURT'S CONCEPTION OF THE CASE. 

MOREOVER, THE EFFECT OF THE COURT'S MISCONCEPTION EXTENDED ALSO TO
THE PROOF OF OVERT ACTS.  CARRYING FORWARD HIS PREMISE THAT THE JURY
COULD FIND ONE CONSPIRACY ON THE EVIDENCE, THE TRIAL JUDGE FURTHER
CHARGED THAT, IF THE JURY FOUND A CONSPIRACY, "THEN THE ACTS OR THE
STATEMENTS OF ANY OF THOSE WHOM YOU SO FIND TO BE CONSPIRATORS BETWEEN
THE TWO DATES THAT I HAVE MENTIONED, MAY BE CONSIDERED BY YOU IN
EVIDENCE AS AGAINST ALL OF THE DEFENDANTS WHOM YOU SO FIND TO BE
MEMBERS OF THE CONSPIRACY."  THE INSTRUCTIONS IN THIS PHASE ALSO
DECLARED: 

"IT IS NOT NECESSARY, AS A MATTER OF LAW, THAT AN OVERT ACT BE
CHARGED AGAINST EACH DEFENDANT.  IT IS SUFFICIENT IF THE CONSPIRACY BE
ESTABLISHED AND THE DEFENDANT BE FOUND TO BE A MEMBER OF THE CONSPIRACY
- IT IS SUFFICIENT TO ALLEGE OVERT ACTS ON THE PART OF ANY OTHERS WHO
MAY HAVE BEEN MEMBERS OF THE CONSPIRACY, IF THOSE ACTS WERE DONE IN
FURTHERANCE OF, AND FOR THE PURPOSE OF ACCOMPLISHING THE CONSPIRACY." 
FN27    ON THOSE INSTRUCTIONS IT WAS COMPETENT NOT ONLY FOR THE JURY TO
FIND THAT ALL OF THE DEFENDANTS WERE PARTIES TO A SINGLE COMMON PLAN,
DESIGN AND SCHEME, WHERE NONE WAS SHOWN BY THE PROOF, BUT ALSO FOR THEM
TO IMPUTE TO EACH DEFENDANT THE ACTS AND STATEMENTS OF THE OTHERS
WITHOUT REFERENCE TO WHETHER THEY RELATED TO ONE OF THE SCHEMES PROVEN
OR ANOTHER, AND TO FIND AN OVERT ACT AFFECTING ALL IN CONDUCT WHICH
ADMITTEDLY COULD ONLY HAVE AFFECTED SOME.  TRUE, THE COURT OF APPEALS
PAINSTAKINGLY EXAMINED THE EVIDENCE DIRECTLY RELATING TO EACH
PETITIONER AND CONCLUDED HE HAD NOT BEEN PREJUDICED IN THIS MANNER. 
FN28  THAT JUDGMENT WAS FOUNDED LARGELY IN THE FACT THAT EACH WAS
CLEARLY SHOWN TO HAVE SHARED IN THE FRAUDULENT PHASE OF THE CONSPIRACY
IN WHICH HE PARTICIPATED.  EVEN SO, WE DO NOT UNDERSTAND HOW IT CAN BE
CONCLUDED, IN THE FACE OF THE INSTRUCTION, THAT THE JURY CONSIDERED AND
WAS INFLUENCED BY NOTHING ELSE. 

ALL THIS THE GOVERNMENT SEEKS TO JUSTIFY AS HARMLESS ERROR.  AGAIN
THE BASIS IS THAT BECAUSE THE PROOF WAS SUFFICIENT TO ESTABLISH THE
PARTICIPATION OF EACH PETITIONER IN ONE OR MORE OF SEVERAL SMALLER
CONSPIRACIES, NONE OF THEM COULD HAVE BEEN PREJUDICED BECAUSE ALL WERE
FOUND GUILTY, UPON SUCH PROOF, OF BEING MEMBERS OF A SINGLE LARGER
CONSPIRACY OF THE SAME GENERAL CHARACTER.  AND THE COURT'S CHARGE, IN
ALL THE PHASES OF ITS APPLICATION TO THE FACTS, IS REGARDED AS "NO MORE
THAN A MISNOMER" WHICH "CANNOT IN ITSELF BE CONSIDERED PREJUDICIAL." 
STRESS IS ALSO PLACED UPON THE FACT THAT, BECAUSE THE ONLY KIND OF
EVIDENCE TO SHOW PETITIONERS'"MEMBERSHIP IN A CONSPIRACY" WAS EVIDENCE
THAT THEY THEMSELVES "HAD PERFORMED ACTS OF DIRECT PARTICIPATION IN A
CONSPIRACY," IN ITS FINDING THAT THEY HAD "JOINED A CONSPIRACY, THE
JURY AT THAT POINT MUST HAVE CREDITED EVIDENCE WHICH COMPLETELY
ESTABLISHED GUILT."  ALL THIS, IT IS SAID ALSO, THE BERGER CASE
SUSTAINS. 

WE DO NOT AGREE.  IT IS TRUE, AS WE HAVE SAID, THAT TAKEN IN
ABSTRACTION FROM THE PARTICULAR FACTS THE CASES ARE ALIKE IN THESE
RESPECTS:  THE INDICTMENT CHARGED A SINGLE CONSPIRACY ONLY; THE PROOF
SHOWED MORE THAN ONE; THE INSTRUCTIONS TOLD THE JURY ERRONEOUSLY THAT
ON THE EVIDENCE THEY COULD FIND THE DEFENDANTS GUILTY OF A SINGLE
CONFEDERATION; MUST FIND THAT EACH DEFENDANT JOINED IT, IN ORDER TO
CONVICT; MUST CONSIDER THE EVIDENCE AS TO EACH SEPARATELY ON THIS
PHASE; BUT, ONCE SATISFIED CONCERNING THAT, COULD ATTRIBUTE TO EACH ONE
FOUND TO BE A MEMBER ANY ACT DONE BY ANY OTHER CO-CONSPIRATOR IN
FURTHERANCE OF "THE SCHEME" AS AN OVERT ACT, AGAIN IN OBVIOUS ERROR;
AND IN NEITHER CASE, OF COURSE, WAS THERE PRECAUTION TO KEEP SEPARATE
CONSPIRACIES SEPARATE.  IT IS ALSO TRUE THAT, AGAIN ABSTRACTLY TAKEN,
THE INDICTMENT HERE MIGHT BE CONSIDERED, AS WAS THE ONE IN BERGER,
LITERALLY TO COVER EACH OF THE CONSPIRACIES PROVED, IF TAKEN BY
ITSELF.  BUT OBVIOUSLY A MUCH GREATER STRETCH OF IMAGINATION IS NEEDED
TO REGARD AN INDICTMENT CHARGING THIRTY-SIX PEOPLE WITH CONSPIRING
TOGETHER AS MEANING THAT ONLY THREE OR FOUR OR EVEN FIVE DID SO, THAN
WAS NEEDED TO SAY THAT ONE CHARGING FOUR AS AGREEING WITH EACH OTHER IN
TERMS COVERED EACH OF TWO AGREEMENTS BY THREE OF THE FOUR, ONE
CONSPIRATOR BEING DIFFERENT IN EACH PROVED OFFENSE.  AND EVEN MORE
WOULD BE NEEDED TO LOOK UPON THE FORMER AS CHARGING EIGHT OR MORE
CONSPIRACIES THAN UPON THE LATTER AS INDICTING FOR TWO. 

THESE ARE THE ABSTRACT SIMILARITIES.  THEY ARE ONLY ABSTRACT.  TO
STRIP THEM FROM THE SEPARATE AND DISTINCT TOTAL CONTEXTS OF THE TWO
CASES, AND DISREGARD THE VAST DIFFERENCE IN THOSE CONTEXTS, IS TO
VIOLATE THE WHOLE SPIRIT, AND WE THINK THE LETTER ALSO, OF SEC. 269. 
NUMBERS ARE VITALLY IMPORTANT IN TRIAL, ESPECIALLY IN CRIMINAL
MATTERS.  GUILT WITH US REMAINS INDIVIDUAL AND PERSONAL, EVEN AS
RESPECTS CONSPIRACIES.  IT IS NOT A MATTER OF MASS APPLICATION.  THERE
ARE TIMES WHEN OF NECESSITY, BECAUSE OF THE NATURE AND SCOPE OF THE
PARTICULAR FEDERATION, LARGE NUMBERS OF PERSONS TAKING PART MUST BE
TRIED TOGETHER OR PERHAPS NOT AT ALL, AT ANY RATE AS RESPECTS SOME. 
WHEN MANY CONSPIRE, THEY INVITE MASS TRIAL BY THEIR CONDUCT.  EVEN SO,
THE PROCEEDINGS ARE EXCEPTIONAL TO OUR TRADITION AND CALL FOR USE OF
EVERY SAFEGUARD TO INDIVIDUALIZE EACH DEFENDANT IN HIS RELATION TO THE
MASS.  WHOLLY DIFFERENT IS IT WITH THOSE WHO JOIN TOGETHER WITH ONLY A
FEW, THOUGH MANY OTHERS MAY BE DOING THE SAME AND THOUGH SOME OF THEM
MAY LINE UP WITH MORE THAN ONE GROUP. 

CRIMINAL THEY MAY BE, BUT IT IS NOT THE CRIMINALITY OF MASS
CONSPIRACY.  THEY DO NOT INVITE MASS TRIAL BY THEIR CONDUCT.  NOR DOES
OUR SYSTEM TOLERATE IT.  THAT WAY LIES THE DRIFT TOWARD TOTALITARIAN
INSTITUTIONS.  TRUE, THIS MAY BE INCONVENIENT FOR PROSECUTION.  BUT OUR
GOVERNMENT IS NOT ONE OF MERE CONVENIENCE OR EFFICIENCY.  IT TOO HAS A
STAKE, WITH EVERY CITIZEN, IN HIS BEING AFFORDED OUR HISTORIC
INDIVIDUAL PROTECTIONS, INCLUDING THOSE SURROUNDING CRIMINAL TRIALS. 
ABOUT THEM WE DARE NOT BECOME CARELESS OR COMPLACENT WHEN THAT FASHION
HAS BECOME RAMPANT OVER THE EARTH. 

HERE TOLERATION WENT TOO FAR.  WE DO NOT THINK THAT EITHER CONGRESS,
WHEN IT ENACTED SEC. 269, OR THIS COURT, WHEN DECIDING THE BERGER CASE,
INTENDED TO AUTHORIZE THE GOVERNMENT TO STRING TOGETHER, FOR COMMON
TRIAL, EIGHT OR MORE SEPARATE AND DISTINCT CRIMES, CONSPIRACIES RELATED
IN KIND THOUGH THEY MIGHT BE, WHEN THE ONLY NEXUS AMONG THEM LIES IN
THE FACT THAT ONE MAN PARTICIPATED IN ALL.  LEEWAY THERE MUST BE FOR
SUCH CASES AS THE BERGER SITUATION AND FOR OTHERS WHERE PROOF MAY NOT
ACCORD WITH EXACT SPECIFICATIONS IN INDICTMENTS.  FN29  OTHERWISE
CRIMINAL CONSPIRATORS NEVER COULD BE BROUGHT TO HALT.  BUT IF THE
PRACTICE HERE FOLLOWED WERE TO STAND, WE SEE NOTHING TO PREVENT ITS
EXTENSION TO A DOZEN, A SCORE, OR MORE CONSPIRACIES AND AT THE SAME
TIME TO SCORES OF MEN INVOLVED, IF AT ALL, ONLY SEPARATELY IN THEM. 
THE DANGERS OF TRANSFERENCE OF GUILT FROM ONE TO ANOTHER ACROSS THE
LINE SEPARATING CONSPIRACIES, SUBCONSCIOUSLY OR OTHERWISE, ARE SO GREAT
THAT NO ONE REALLY CAN SAY PREJUDICE TO SUBSTANTIAL RIGHT HAS NOT TAKEN
PLACE.  SECTION 269 HAD NO PURPOSE TO GO SO FAR.  THE LINE MUST BE
DRAWN SOMEWHERE.  WHETHER OR NOT BERGER MARKS THE LIMIT, FOR THIS SORT
OF ERROR AND CASE, WE ARE CLEAR THAT IT MUST LIE SOMEWHERE BETWEEN THAT
CASE AND THIS ONE. 

IN SO RULING WE ARE NOT UNMINDFUL, AS THE COURT OF APPEALS HAS HELD
MORE THAN ONCE,  FN30  THAT THE PROBLEM IS NOT MERELY ONE OF VARIANCE
BETWEEN INDICTMENT AND PROOF OR OF THE RIGHT APPLICATION OF THE POLICY
OF SEC. 269 FOR FREEDOM OF JUDGMENT, BUT IS ALSO ESSENTIALLY ONE OF
PROPER JOINDER UNDER SEC. 557 OF THE JUDICIAL CODE.  WHEN WE LOOK AT
THAT SECTION'S REQUIREMENT FOR SEPARATE STATEMENT IN DIFFERENT COUNTS
OF RELATED BUT DISTINCT "ACTS OR TRANSACTIONS OF THE SAME CLASS OF
CRIMES OR OFFENSES, WHICH MAY BE PROPERLY JOINED, INSTEAD OF HAVING
SEVERAL INDICTMENTS," OUR CONCLUSION IS REINFORCED. 

TO THIS IS ADDED THE FURTHER RELAXATION OF SEC. 269 FOR CRIMINAL
CAUSES, ALL TECHNICAL ADVANTAGE FOR THE ACCUSED DERIVING NOT ONLY FROM
DETAILED SPECIFICATION OF THE OFFENSE IN THE INDICTMENT BUT ALSO FROM
SEPARATE STATEMENT OF DISTINCT OFFENSES WOULD SEEM TO BE LOST.  BUT
THIS TOO MAY BE CARRIED TOO FAR.  FOR, POTENTIALLY AT ANY RATE, SEC.
269 CARRIES THE THREAT OF OVERRIDING THE REQUIREMENT OF SEC. 557 FOR
SUBSTITUTING SEPARATE COUNTS IN THE PLACE OF SEPARATE INDICTMENTS,
UNLESS THE APPLICATION OF SEC. 269 IS MADE WITH RESTRAINT.  THE TWO
SUBSTANTIAL HARMONY, NOT INTO SQUARE CONFLICT. 

WE NEED NOT INQUIRE WHETHER THE SIXTH AMENDMENT'S REQUIREMENT, THAT
"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT  ...
TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION," WOULD BE
OBSERVED IN A MORE GENEROUS APPLICATION OF SEC. 269 TO A SITUATION
GOVERNED ALSO BY SEC. 557 THAN WAS MADE IN THE BERGER RULING.  NOR NEED
WE NOW EXPRESS OPINION WHETHER REVERSAL WOULD BE REQUIRED IN ALL CASES
WHERE THE INDICTMENT IS SO DEFECTIVE THAT IT SHOULD BE DISMISSED FOR
SUCH A FAULT, AS THE COURT OF APPEALS SAID OF THE INDICTMENT IN THIS
CASE, TAKEN IN THE TRIAL COURT'S CONCEPTION. 

WE HAVE HAD REGARD ALSO FOR THE FACT THAT THE COURT OF APPEALS
PAINSTAKINGLY EXAMINED THE EVIDENCE RELATING DIRECTLY TO EACH OF THE
PETITIONERS; FOUND IT CONVINCING TO THE POINT OF MAKING GUILT MANIFEST;
COULD NOT FIND SUBSTANTIAL HARM OR UNFAIRNESS IN THE ALL-PERVADING
ERROR OR IN ANY PARTICULAR PHASE OF THE TRIAL; AND CONCLUDED THAT
REVERSAL WOULD BE A MISCARRIAGE OF JUSTICE. 

WITH ALL DEFERENCE WE DISAGREE WITH THAT CONCLUSION AND WITH THE
RULING THAT THE PERMEATING ERROR DID NOT AFFECT "THE SUBSTANTIAL RIGHTS
OF THE PARTIES."  THAT RIGHT, IN EACH INSTANCE, WAS THE RIGHT NOT TO BE
TRIED EN MASSE FOR THE CONGLOMERATION OF DISTINCT AND SEPARATE OFFENSES
COMMITTED BY OTHERS AS SHOWN BY THIS RECORD. 

IT MAY BE, AS THE COURT OF APPEALS FOUND, THAT THE EVIDENCE
CONCERNING EACH PETITIONER WAS SO CLEAR THAT CONVICTION WOULD HAVE BEEN
DICTATED AND REVERSAL FORBIDDEN, IF IT HAD BEEN PRESENTED IN SEPARATE
TRIALS FOR EACH OFFENSE OR IN ONE OR MORE SUBSTANTIALLY SIMILAR TO THE
BERGER TRIAL IN THE NUMBER OF CONSPIRACIES AND CONSPIRATORS INVOLVED. 
BUT WHETHER SO OR NOT IS NEITHER OUR PROBLEM NOR THAT OF THE COURT OF
APPEALS FOR THIS CASE.  THAT CONVICTION WOULD, OR MIGHT PROBABLY, HAVE
RESULTED IN A PROPERLY CONDUCTED TRIAL IS NOT THE CRITERION OF SEC.
269.  WE THINK IT HIGHLY PROBABLE THAT THE ERROR HAD SUBSTANTIAL AND
INJURIOUS EFFECT OR INFLUENCE IN DETERMINING THE JURY'S VERDICT. 

WE HAVE NOT RESTED OUR DECISION PARTICULARLY ON THE FACT THAT THE
OFFENSE CHARGED, AND THOSE PROVED, WERE CONSPIRACIES.  THAT OFFENSE IS
PERHAPS NOT GREATLY DIFFERENT FROM OTHERS WHEN THE SCHEME CHARGED IS
TIGHT AND THE NUMBER INVOLVED SMALL.  BUT AS IT IS BROADENED TO INCLUDE
MORE AND MORE, IN VARYING DEGREES OF ATTACHMENT TO THE CONFEDERATION,
THE POSSIBILITIES FOR MISCARRIAGE OF JUSTICE TO PARTICULAR INDIVIDUALS
BECOME GREATER AND GREATER.  CF. GEBARDI V. UNITED STATES, 287 U.S.
112, 122 N. 7, CITING REPORT OF THE ATTORNEY GENERAL (1925) 5-6,
SETTING OUT THE RECOMMENDATIONS OF THE CONFERENCE OF SENIOR CIRCUIT
JUDGES WITH RESPECT TO CONSPIRACY PROSECUTIONS.  AT THE OUTSKIRTS THEY
ARE PERHAPS HIGHER THAN IN ANY OTHER FORM OF CRIMINAL TRIAL OUR SYSTEM
AFFORDS.  THE GREATER LOOSENESS GENERALLY ALLOWED FOR SPECIFYING THE
OFFENSE AND ITS DETAILS, FOR RECEIVING PROOF, AND GENERALLY IN THE
CONDUCT OF THE TRIAL, BECOMES MAGNIFIED AS THE NUMBERS INVOLVED
INCREASE.  HERE, IF ANYWHERE, CF. BOLLENBACH V. UNITED STATES, SUPRA,
EXTRAORDINARY PRECAUTION IS REQUIRED, NOT ONLY THAT INSTRUCTIONS SHALL
NOT MISLEAD, BUT THAT THEY SHALL SCRUPULOUSLY SAFEGUARD EACH DEFENDANT
INDIVIDUALLY, AS FAR AS POSSIBLE, FROM LOSS OF IDENTITY IN THE MASS.
INDEED, THE INSTRUCTIONS OFTEN BECOME, IN SUCH CASES, HIS PRINCIPAL
PROTECTION AGAINST UNWARRANTED IMPUTATION OF GUILT FROM OTHERS'
CONDUCT.  HERE ALSO IT IS OF SPECIAL IMPORTANCE THAT PLAIN ERROR BE NOT
TOO READILY TAKEN TO BE HARMLESS. 

ACCORDINGLY THE JUDGMENTS ARE REVERSED AND THE CAUSES ARE REMANDED
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  FOUR OTHER PERSONS WERE ALLEGED TO BE CONSPIRATORS BUT WERE NOT
MADE DEFENDANTS. 

FN2  IT WAS ALSO ALLEGED THAT AS PART OF THE CONSPIRACY THE
DEFENDANTS WOULD SOLICIT PERSONS DESIRING TO MAKE LOANS NOT IN
CONFORMITY WITH THE RULES AND REGULATIONS PRESCRIBED BY THE NATIONAL
HOUSING ADMINISTRATOR, WHICH LIMITED THE MAKING OF SUCH LOANS FOR
MODERNIZING AND ALTERING EXISTING STRUCTURES, IN AMOUNTS NOT TO EXCEED
$2500; AND WOULD REPRESENT TO THOSE PERSONS THAT MONEY OBTAINED THROUGH
FALSE AND FRAUDULENT APPLICATIONS COULD BE USED FOR PURPOSES NOT WITHIN
THE CONTEMPLATION OF TITLE 1 OF THE NATIONAL HOUSING ACT.  THE
DEFENDANTS WOULD PROCURE VARIOUS DOCUMENTS, E.G., CREDIT STATEMENTS AND
CERTIFICATES FALSELY STATING THAT WORK CONTRACTED FOR HAD BEEN
COMPLETED AND MATERIAL DELIVERED; AND ON THE BASIS OF THESE DOCUMENTS,
WHICH WERE PRESENTED TO THE VARIOUS FINANCIAL INSTITUTIONS AND TO THE
FEDERAL HOUSING ADMINISTRATION, WOULD OBTAIN LOANS, THE PROCEEDS OF
WHICH WOULD BE USED FOR PURPOSES OTHER THAN HOUSING RENOVATION AND
MODERNIZATION. 

FN3  AS TO FOUR A SEVERANCE WAS GRANTED.  THE INDICTMENT WAS
NOLPROSSED AS TO ONE, AND EIGHT OTHERS PLEADED GUILTY. 

FN4  ONE PLEADED GUILTY DURING TRIAL.  THE INDICTMENT WAS NOL-PROSSED
AS TO ANOTHER, AND A SEVERANCE WAS ORDERED FOR A THIRD.  VERDICTS OF
ACQUITTAL WERE DIRECTED AS TO THREE OTHERS. 

FN5  THE APPLICATION STATED THAT THE HOUSE ON WHICH THE LOAN WAS
SOUGHT WAS BOUGHT IN 1936 RATHER THAN IN 1938, THAT THE PURCHASE PRICE
WAS $8500 RATHER THAN $7200, AND THAT THE ASSESSED VALUATION WAS $9500
RATHER THAN $6500.  THE APPLICATION FURTHER STATED THAT AMONG THE
REPAIRS CONTEMPLATED WAS A REPAINTING OF THE HOUSE, WHEREAS IN FACT
ONLY THE BASEMENT HALLWAY AND GARAGE WERE REPAINTED. 

FN6  THE COURT CAREFULLY EXAMINED THE EVIDENCE RELATING TO
PETITIONERS AND CONSIDERED THAT THEIR GUILT TURNED UPON THEIR INTENT IN
MAKING THE MISREPRESENTATIONS ON THEIR APPLICATIONS FOR LOANS.  THE
JURY, IT THOUGHT, MUST HAVE BELIEVED BROWN, WHO TESTIFIED THAT THEIR
MISREPRESENTATIONS HAD BEEN DELIBERATE.  THE OPINION STATED THERE WAS
SOME POSSIBILITY THAT, IN SO FAR AS BROWN'S STORY AS TO HIS
TRANSACTIONS WITH APPLICANTS NOT IN CONSPIRACY WITH PETITIONERS HAD
BEEN CONFIRMED, "THE JURY MIGHT HAVE BEEN DISPOSED TO FIND MORE
CREDIBLE THE STORY OF HIS DEALINGS" WITH PETITIONERS; BUT IT WAS HELD
THAT IN THE CIRCUMSTANCES OF THIS CASE THE POSSIBILITY DID NOT WARRANT
REVERSAL, SINCE WHENEVER TWO CRIMES ARE TRIED TOGETHER THE POSSIBILITY
OF CONFUSION EXISTS "BECAUSE TESTIMONY RELEVANT TO ONE CRIME MAY GAIN
CREDIBILITY FROM TESTIMONY RELEVANT ONLY TO THE OTHER" AND CONGRESS HAS
NOT INSISTED UPON ABSOLUTE SEPARATION.    REV. STAT. SEC. 1024, 18
U.S.C. SEC. 557, PROVIDES:  "WHEN THERE ARE SEVERAL CHARGES AGAINST ANY
PERSON FOR THE SAME ACT OR TRANSACTION, OR FOR TWO OR MORE ACTS OR
TRANSACTIONS CONNECTED TOGETHER, OR FOR TWO OR MORE ACTS OR
TRANSACTIONS OF THE SAME CLASS OF CRIMES OR OFFENSES, WHICH MAY BE
PROPERLY JOINED, INSTEAD OF HAVING SEVERAL INDICTMENTS THE WHOLE MAY BE
JOINED IN ONE INDICTMENT IN SEPARATE COUNTS; AND IF TWO OR MORE
INDICTMENTS ARE FOUND IN SUCH CASES, THE COURT MAY ORDER THEM TO BE
CONSOLIDATED."    THE COURT OF APPEALS IN THIS CASE, AS IN UNITED
STATES V. LISS, 137 F.2D 995; SEE ALSO UNITED STATES V. COHEN, 145 F.2D
82, 89; UNITED STATES V. ROSENBERG, 150 F.2D 788, 793, TREATED THE
PROBLEM OF VARIANCE AS "STRICTLY SPEAKING RATHER ONE OF JOINDER" UNDER
SEC. 557. 

FN7  THE FACTS WERE SUCCINCTLY STATED.  "IT IS NOT NECESSARY NOW TO
REFER TO THE EVIDENCE FURTHER THAN TO SAY THAT IT TENDED TO ESTABLISH
NOT A SINGLE CONSPIRACY AS CHARGED BUT TWO CONSPIRACIES - ONE BETWEEN
RICE AND KATZ AND ANOTHER BETWEEN BERGER, JONES AND KATZ.  THE ONLY
CONNECTING LINK BETWEEN THE TWO WAS THAT KATZ WAS IN BOTH CONSPIRACIES
AND THE SAME COUNTERFEIT MONEY HAD TO DO WITH BOTH.  THERE WAS NO
EVIDENCE THAT BERGER WAS A PARTY TO THE CONSPIRACY BETWEEN RICE AND
KATZ."  295 U.S. AT 80.  FOR A MORE COMPLETE STATEMENT OF THE FACTS SEE
THE OPINION OF THE CIRCUIT COURT OF APPEALS IN THE SAME CASE, 73 F.2D
278.  IN THAT OPINION THE COURT SAID: "THE MATERIALITY OF A VARIANCE
DOES NOT DEPEND UPON THE DEGREE OF ITS LOGICAL PERVERSITY, BUT UPON HOW
FAR IT THROWS CONFUSION INTO THE TRIAL AND MAKES IT LIKELY TO
MISCARRY."  73 F.2D AT 280. 

FN8  BUT THE COURT APPLIED SEC. 269 IN ANOTHER CONNECTION TO REVERSE
THE CONVICTION, NAMELY, FOR MISCONDUCT OF THE PROSECUTING ATTORNEY IN
EXAMINATION OF WITNESSES AND IN ADDRESSING THE JURY. 

THIS COURT HAS EXPLICITLY CONSIDERED OR APPLIED SEC. 269 IN
CONNECTION WITH THE FOLLOWING CRIMINAL CASES:  HORNING V. DISTRICT OF
COLUMBIA, 254 U.S. 135; SINCLAIR V. UNITED STATES, 279 U.S.
749(CONTEMPT); ALDRIDGE V. UNITED STATES, 283 U.S. 308, DISSENTING
OPINION; BERGER V. UNITED STATES, 295 U.S. 78; BRUNO V. UNITED STATES,
308 U.S. 287; UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150;
WEILER V. UNITED STATES, 323 U.S. 606; BOLLENBACH V. UNITED STATES, 326
U.S. 607. 

FN9  BOTH THE FEDERAL RULES OF CIVIL PROCEDURE, 28 U.S.C. FOLLOWING
SEC. 723(C), RULE 61, AND THE FEDERAL RULES OF CRIMINAL PROCEDURE,
EFFECTIVE MARCH 21, 1946, RULE 52(A), CONTAIN "HARMLESS ERROR"
RESTATEMENT OF EXISTING LAW,  ..."  WITH CITATION OF 28 U.S.C. SEC. 391
AND 18 U.S.C. SEC. 556.  NOTES TO THE RULES OF CRIMINAL PROCEDURE FOR
THE DISTRICT COURTS OF THE UNITED STATES, AS PREPARED UNDER THE
DIRECTION OF THE ADVISORY COMMITTEE ON RULES OF CRIMINAL PROCEDURE
(1945) 43.  SEE ALSO PRELIMINARY DRAFT OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE (1943) 197; SECOND PRELIMINARY DRAFT OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE (1944) 185. 

FN10  SEE POUND, THE CAUSES OF POPULAR DISSATISFACTION WITH THE
ADMINISTRATION OF JUSTICE, 29 A.B.A. REP., PT. 1, 395; ID. 11, 55; 31
ID. 505; 33 ID. 27, 542; 34 ID. 61, 578; 35 ID. 56, 614; 36 ID. 448; 37
ID. 42, 557; 38 ID. 44, 546; 39 ID. 31, 575; 41 ID. 36, 540; 2 A.B.A.J.
603; 42 A.B.A. REP. 40, 334; 3 A.B.A.J. 507; 44 A.B.A. REP. 62; 5
A.B.A.J. 455. 

FN11  SEE, E.G., HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY,
H.R., ON AMERICAN BAR ASSOCIATION BILLS, 62D CONG., 2D SESS.; H.R. REP.
NO. 1949, 61ST CONG., 3D SESS.; H.R. REP. NO. 611, 62D CONG., 2D SESS.;
SEN. REP. NO. 1066, 62D CONG., 2D SESS.; 48 CONG. REC. 11770-11777;
H.R. REP. NO. 1218, 63D CONG., 3D SESS.; SEN. REP. NO. 853, 63D CONG.,
3D SESS.; H.R. REP. NO. 264, 64TH CONG., 1ST SESS.; H.R. REP. NO. 913,
65TH CONG., 3D SESS.; 56 CONG. REC. 11586; 57 CONG. REC. 3605. 

FN12  AS OF 1927 SOME EIGHTEEN STATES HAD ADOPTED STATUTES SIMILAR TO
SEC. 269.  SUNDERLAND, THE PROBLEM OF APPELLATE REVIEW (1927) 5 TEX. L.
REV. 126, 146.  SEE ALSO THE LIST OF STATUTES IN THE OFFICIAL DRAFT OF
THE AMERICAN LAW INSTITUTE CODE OF CRIMINAL PROCEDURE (1930) 1302
1304. 

FN13  KAVANAGH, IMPROVEMENT OF ADMINISTRATION OF CRIMINAL JUSTICE BY
EXERCISE OF JUDICIAL POWER (1925) 11 A.B.A.J. 217, 222. 

FN14  SEE HADLEY, CRIMINAL JUSTICE IN AMERICA (1925) 11 A.B.A.J. 674;
HADLEY, OUTLINE OF CODE OF CRIMINAL PROCEDURE (1926) 12 A.B.A.J. 690;
TAFT, ADMINISTRATION OF CRIMINAL LAW, IN PRESENT DAY PROBLEMS, A
COLLECTION OF ADDRESSES (1908) 333; AND CF. HICKS, WILLIAM HOWARD TAFT
(1945) 68-69; WIGMORE, CRIMINAL PROCEDURE - "GOOD" REVERSALS AND "BAD"
REVERSALS (1909) 4 ILL. REV. 352; WIGMORE, EVIDENCE (1904) SEC. 21. 

PERHAPS THE MOST NOTABLE INSTANCE OF HYPERTECHNICALITY IN A COURT'S
ASSIGNMENT OF A REASON FOR ITS DECISION, ARISING IN THE EARLY PART OF
THE PERIOD OF AGITATION, IS TO BE FOUND IN STATE V. CAMPBELL, 210 MO.
202, 109 S.W. 706.  SEE ALSO STATE V. WARNER, 220 MO. 23, 119 S.W.
399.  THE RULING WAS REVERSED IN STATE V. ADKINS, 284 MO. 680, 695, 225
S.W. 981. 

FN15  SEE THE MATERIALS CITED IN NOTES 10 AND 11.  AT ONE TIME THE
SENATE JUDICIARY COMMITTEE RECOMMENDED THAT THE "HARMLESS ERROR" BILL
BE CONFINED SOLELY TO CIVIL CASES.  S. REP. NO. 1066, 62D CONG., 2D
SESS.  SEE 38 A.B.A. REP. 546-548.  AT ANOTHER TIME THE SAME COMMITTEE
REPORTED OUT A BILL CONSIDERABLY WEAKER THAN THAT PASSED IN THE HOUSE
OF REPRESENTATIVES.  SEE 53 CONG. REC. 2493; 41 A.B.A. REP. 540; 2
A.B.A.J. 603.  SEE ALSO 42 A.B.A. REP. 334; 3 A.B.A.J. 507. 

FN16  CF. HORNING V. DISTRICT OF COLUMBIA, 254 U.S. 135; SNEIERSON V.
UNITED STATES, 264 F. 268, 275-276, AND SEE OTHER AUTHORITIES CITED IN
UNITED STATES V. ANTONELLI FIREWORKS CO., 155 F.2D 631, DISSENTING
OPINION, NOTES 12 AND 12A.  SEE ALSO 18 U.S.C. SEC. 556. 

FN17  E.G., LUCKS V. UNITED STATES, 100 F.2D 908; UNITED STATES V.
GOLDSMITH, 91 F.2D 983, 986; BEACH V. UNITED STATES, 19 F.2D 739, 743. 

FN18  THIS OF COURSE PRESENTS A QUESTION OF LAW.  AND WHEN THE ERROR
RELATES TO THAT MINIMUM SO THAT, IF ELIMINATED, THE PROOF WOULD NOT BE
SUFFICIENT, NECESSARILY THE PREJUDICE IS SUBSTANTIAL.  CF. TOT V.
UNITED STATES, 319 U.S. 463. 

FN19  THUS, WHEN FORCED CONFESSIONS HAVE BEEN RECEIVED, REVERSALS
HAVE FOLLOWED ALTHOUGH ON OTHER EVIDENCE GUILT MIGHT BE TAKEN TO BE
CLEAR.  SEE MALINSKI V. NEW YORK, 324 U.S. 401, 404; LYONS V. OKLAHOMA,
322 U.S. 596, 597, N. 1; BRAM V. UNITED STATES, 168 U.S. 532, 540-542;
UNITED STATES V. MITCHELL, 137 F.2D 1006, DISSENTING OPINION AT 1012. 

FN20  CF. UNITED STATES V. ANTONELLI FIREWORKS CO., 155 F.2D 631,
MAJORITY AND DISSENTING OPINIONS. 

FN21  ALTHOUGH NOT NOTED IN THE BERGER OPINION, THE INSTRUCTIONS IN
THAT CASE WERE SUBSTANTIALLY IDENTICAL WITH THE CHARGE GIVEN HERE,
QUOTED BELOW, TO THE EFFECT THAT ONLY A SINGLE CONSPIRACY HAD BEEN
CHARGED AND THEREFORE MORE COULD NOT BE PROVED.  THE COURT SAID:  "...
ONE MAY HAVE CONTROL OF A LARGE AMOUNT OF COUNTERFEIT MONEY, AND THERE
MAY BE AN AGREEMENT THAT THAT MONEY SHALL BE DISTRIBUTED, AND ONE MAY
GO FORTH AND ENLIST THE SERVICES OF OTHERS IN THE FURTHERANCE OF THIS
COMMON PLAN.  BUT IT MUST BE IN THE FURTHERANCE OF THE COMMON PLAN;
THERE CAN'T BE THREE OR FOUR DIFFERENT PLANS.  THERE MUST BE ONE PLAN,
AND ALL OF THEM MUST BEAR THEIR PART." 

FN22  THE CHARGE FURTHER STATED IN PART: 

"THE GOVERNMENT CONTENDS, AND THEY HAVE OFFERED EVIDENCE TO SHOW,
THAT SIMON BROWN WAS THE PIVOT AROUND WHICH THIS WHOLE CONSPIRACY
REVOLVED.  HAVE THEY SHOWN THAT TO YOUR SATISFACTION?  IF THEY HAVE,
THEN WE ADVANCE ANOTHER STEP.  WHAT WAS THE RELATION BETWEEN THE
SEVERAL DEFENDANTS?  DID THE DEFENDANTS MICHAEL LEKACOS, LOUIS LEVINE,
GUS KOTTEAKOS, MAX J. POSNER, JAMES SECULAR, NATHAN REGENBOGEN, BRING
APPLICANTS OR APPLICATIONS FROM ANY OF THESE DEFENDANTS TO BROWN?  WERE
ANY OF THESE MEN ACQUAINTED WITH EACH OTHER?  HAD THEY OBTAINED LOANS
FOR THEMSELVES, AND AFTER THEY HAD THEM, HAD THEY OBTAINED LOANS FOR
SOMEBODY ELSE? 

"THAT IS THE QUESTION.  YOU HAVE THE EVIDENCE.  IT IS CERTAINLY NOT
ALL ADMITTED.  YOU HAVE HEARD IT EXPLAINED TO YOU. 

"BUT IF THAT BE TRUE, THAT THESE MEN WERE GETTING PEOPLE TO COME IN
WITH BROWN, THEN IT IS FOR YOU TO SAY WHETHER YOU DO NOT FIND STREAMS
RUNNING THROUGH EACH OF THEM TO BROWN, AND THAT ALL OF THOSE STREAMS
LED IN A COMMON DIRECTION, AND THEY ARE CARRYING CRAFT DESTINED FOR THE
SAME PLACE.  THAT IS THE QUESTION. 

"AT LEAST ONE OF THESE APPLICATIONS WAS GIVEN TO SOMEBODY.  I THINK
THERE WAS ONE GIVEN TO BROWN HIMSELF, BUT YOU CAN REMEMBER THAT.  IN
REFERENCE TO THE OTHERS DID THEY COME TO BROWN THROUGH THE AGENCY, OR
THROUGH THE INTRODUCTION, OR THROUGH THE ACT OF SOLICITATION OF THOSE
APPLICATIONS BY ANY OF THE MEN THAT I HAVE MENTIONED? 

"THAT IS IMPORTANT.  IT IS IMPORTANT BECAUSE THE ALLEGATION IS A
CONSPIRACY, AND THERE MUST BE A COMMON PURPOSE SHOWN.  WAS THAT A
COMMON PURPOSE THAT WAS INTENDED TO BE ACCOMPLISHED, AND WAS THE
CONSPIRACY TO DO THESE THINGS, TO VIOLATE THE LAW AND TO PERPETRATE A
FRAUD AGAINST THE GOVERNMENT, PARTICIPATED IN BY ANY OR ALL OF THESE
DEFENDANTS AND DID THEY BRING OTHERS, OR ANY OF THE OTHERS, TO BROWN? 
THAT IS THE QUESTION." 

FN23  SEE NOTE 22. 

FN24  IN ADDITION TO THE THIRTY-TWO PERSONS WHO WERE INDICTED, FOUR
WERE NAMED IN THE INDICTMENT AS CO-CONSPIRATORS.  SEE NOTE 1. 

FN25  SEE NOTE 6; ALSO TEXT AT NOTE 30. 

FN26  SEE UNITED STATES V. LISS, 137 F.2D 995, DISSENTING OPINION, AT
1002-1003; CF. TELMAN V. UNITED STATES, 67 F.2D 716, 718. 

FN27  A SIMILAR INSTRUCTION WAS GIVEN IN THE BERGER CASE:  "LET ME
SAY TO YOU IF A CONSPIRACY EXISTED THEN THE ACTIONS OR THE STATEMENTS
OR THE DECLARATIONS OF ANY OF THE CONSPIRATORS WOULD BIND ALL THE
OTHERS, IF THERE WAS A CONSPIRACY, UP TO THE TIME OF THE ARREST, AND
THEN THE CONSPIRACY ENDED....  THE STATEMENTS OR ACTS OF ANYONE WHO WAS
A CONSPIRATOR PRIOR TO THE TERMINATION OF THE CONSPIRACY BY THE ARREST
BOUND ALL THE OTHERS.  THEY ARE BOUND BY THAT JUST AS THOUGH THEY HAD
DONE IT AND SAID IT THEMSELVES."  AND FURTHER, "THERE WERE ALLEGED HERE
CERTAIN OVERT ACTS AND THE GOVERNMENT MUST PROVE AT LEAST ONE OF THEM
IN ORDER TO VITALIZE THE CONSPIRACY." 

FN28  SEE NOTE 6 SUPRA. 

FN29  IBID.  IT IS COMMON AND APPROVED PRACTICE, IN CHARGING A
CONSPIRACY, TO NAME ALL WHO MAY BE REACHED WITH PROCESS AND WHOM IT IS
ANTICIPATED THE PROOF WILL CONNECT WITH THE SCHEME, ALTHOUGH IN MOST
INSTANCES WHETHER IT WILL SO TURN OUT FOR EACH DEFENDANT CAN BE ONLY
PROBLEMATICAL.  IF FAILURE TO SUBSTANTIATE THE CHARGE AS TO ONE OR MORE
WERE TO CHANGE THE IDENTITY OF THE CRIME CHARGED, SO AS TO REQUIRE
REINDICTMENT AND RETRIAL FOR THE OTHERS, THE LAW OF CONSPIRACY WOULD BE
A DEAD LETTER.  BUT THIS ACCEPTED PRACTICE DOES NOT COMPREHEND OR
JUSTIFY THAT ATTEMPTED HERE.  IF THIS COMES DOWN TO A DIFFERENCE OF
DEGREE, IT IS STILL ONE OF VITAL IMPORTANCE AS SUCH DIFFERENCES ALWAYS
COME TO BE WHEN DEGREES SPREAD FARTHER AND FARTHER APART. 

FN30  SEE THE AUTHORITIES CITED IN NOTE 6. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE REED AGREES, DISSENTING. 

IT IS CLEAR THAT THERE WAS ERROR IN THE CHARGE.  AN EXAMINATION OF
THE RECORD IN BERGER V. UNITED STATES, 295 U.S. 78, SHOWS THAT THE SAME
ERRONEOUS INSTRUCTIONS WERE IN FACT GIVEN IN THAT CASE.  BUT I DO NOT
THINK THE ERROR "SUBSTANTIALLY INJURED" (ID., P. 81) THE DEFENDANTS IN
THIS CASE ANY MORE THAN IT DID IN THE BERGER CASE. 

WHETHER INJURY RESULTS FROM THE JOINDER OF SEVERAL CONSPIRACIES
DEPENDS ON THE SPECIAL CIRCUMSTANCES OF EACH CASE.  SITUATIONS CAN
EASILY BE IMAGINED WHERE CONFUSION ON THE PART OF THE JURY IS LIKELY BY
REASON OF THE SHEER NUMBER OF CONSPIRATORS AND THE COMPLEXITIES OF THE
FACTS WHICH SPELL OUT THE SERIES OF CONSPIRACIES.  THE EVIDENCE
RELATING TO ONE DEFENDANT MAY BE USED TO CONVICT ANOTHER. 

THOSE POSSIBILITIES SEEM TO BE NON-EXISTENT HERE.  NOTHING IN THE
TESTIMONY OF THE OTHER DEFENDANTS EVEN REMOTELY IMPLICATED PETITIONERS
IN THE OTHER FRAUDS.  NOTHING IN THE EVIDENCE CONNECTED PETITIONERS
WITH THE OTHER DEFENDANTS, EXCEPT BROWN, IN THE SLIGHTEST WAY.  ON THE
RECORD NO IMPLICATION OF GUILT BY REASON OF A MASS TRIAL CAN BE FOUND. 
THE DANGERS WHICH PETITIONERS CONJURE UP ARE ABSTRACT ONES. 

MOREOVER, THE TRUE PICTURE OF THE CASE IS NOT THIRTY-TWO DEFENDANTS
ENGAGING IN EIGHT OR MORE DIFFERENT CONSPIRACIES WHICH WERE LUMPED
TOGETHER AS ONE.  THE JURY CONVICTED ONLY FOUR PERSONS IN ADDITION TO
PETITIONERS.  FN1  THE OTHER DEFENDANTS AND THE EVIDENCE CONCERNING
THEM WERE IN EFFECT ELIMINATED FROM THE CASE.  WE HAVE THEN A CASE OF
TWO CLOSELY RELATED CONSPIRACIES INVOLVING PETITIONERS AND TWO
ADDITIONAL CONSPIRACIES IN WHICH PETITIONERS PLAYED NO PART - BUT ALL
OF THE SAME CHARACTER AND REVOLVING AROUND THE SAME CENTRAL FIGURE,
BROWN.  IF, THEN, WE LOOK AT WHAT ACTUALLY TRANSPIRED BEFORE THE JURY
RATHER THAN AT WHAT THE INDICTMENT CHARGED, WE HAVE A CASE APPROACHING
IN ITS SIMPLICITY THE BERGER CASE.  AND THE STRONG AND IRRESISTIBLE
INFERENCE THAT THE JURY WAS NOT CONFUSED IS BOLSTERED BY THEIR FAILURE
TO CONVICT SIX OF THE THIRTEEN DEFENDANTS ON TRIAL BEFORE THEM. 

AS I HAVE SAID, IT IS PLAIN THAT THERE WAS ERROR IN THE CHARGE AS TO
THE CONSPIRACY.  BUT I AGREE WITH JUDGE LEARNED HAND, SPEAKING FOR THE
COURT BELOW, WHEN HE SAID (151 F.2D P. 174): 

"THERE REMAINS ONLY THE QUESTION OF THE COURT'S ERROR IN DIRECTING
THE JURY THAT THEY MUST FIND THAT THERE WAS ONE CONSPIRACY, OR THAT
THEY SHOULD ACQUIT ALL.  THAT WAS OF COURSE AN ERROR, AS WE HAVE SAID,
BUT IT FAVORED THE ACCUSED.  TO SUPPOSE THAT THESE APPELLANTS SUFFERED
FROM IT WE SHOULD HAVE TO SAY THAT, IF THE JUDGE HAD TOLD THE JURY THAT
THEY COULD CONVICT ANY OF THE THREE FOR CONSPIRING WITH BROWN ALONE,
THEY MIGHT HAVE ACQUITTED ONE OR MORE OF THEM, IN SPITE OF THE FACT
THAT THEY CONVICTED THEM ALL OF A CONSPIRACY WITH BROWN AND THE OTHER
APPLICANTS.  THAT IS INCREDIBLE; INDEED, IT IS NONSENSE.  BROWN BEING
THE ONLY LIAISON BETWEEN THE APPELLANTS AND THE OTHER APPLICANTS, THE
JURY COULD NOT RATIONALLY HAVE DRAWN THE APPELLANTS INTO THE NET WITH
ALL THE OTHERS, UNLESS THEY HAD BELIEVED THAT THE APPELLANTS AND BROWN
HAD CONSPIRED TOGETHER.  THE REST WAS SURPLUSAGE, WHICH MAY BE
DISREGARDED."   THE TRIAL JUDGE DID IMPROPERLY CHARGE THE JURY NOT ONLY
THAT THERE WAS ONE CONSPIRACY BUT ALSO THAT THE OVERT ACTS OF ANY ONE
CONSPIRATOR WERE BINDING ON ALL.  BUT ONLY IF WE CONSIDER THE QUESTION
IN THE ABSTRACT WOULD WE HOLD THAT WAS REVERSIBLE ERROR.  FOR THE
CHARGE MADE CLEAR THAT BEFORE THE JURY COULD IMPUTE THE ACTS OF ONE
CONSPIRATOR TO ANOTHER, THEY WERE REQUIRED TO FIND THAT THE PARTICULAR
DEFENDANT HAD FIRST JOINED THE CONSPIRACY.  THE EVIDENCE SHOWS THAT
EACH OF PETITIONERS, ACTING THROUGH BROWN, HAD MADE A FRAUDULENT
APPLICATION FOR A LOAN.  WHEN THE JURY FOUND THAT EACH OF THE
PETITIONERS HAD ENTERED INTO A CONSPIRACY WITH BROWN, IT MADE A
COMPLETE DETERMINATION OF GUILT AS TO THAT PETITIONER.  THE ERROR IN
THE OTHER PARTS OF THE CHARGE THEREFORE DID NOT REACH THE ESSENTIAL
FACTORS BY WHICH GUILT OR INNOCENCE MUST BE DETERMINED.  THE SITUATION
WOULD BE DIFFERENT IF MEMBERSHIP IN THE CONSPIRACY WERE SHOWN BY SLIGHT
EVIDENCE OF KNOWLEDGE AND ASSOCIATION AND THE ACTS OF OTHERS WOULD NEED
BE IMPUTED TO A DEFENDANT IN ORDER TO ESTABLISH GUILT BEYOND A
REASONABLE DOUBT.  AND I WOULD AGREE THAT REVERSIBLE ERROR WOULD BE
ESTABLISHED IF THE RECORD LEFT A LINGERING DOUBT ON THAT SCORE.  BUT IN
VIEW OF THE CLEAR PROOF IMPLICATING PETITIONERS, THE SIMPLICITY OF THE
TRANSACTIONS, AND THE FACT THAT THE JURY MUST HAVE CREDITED EVIDENCE
WHICH COMPLETELY ESTABLISHED GUILT IN ORDER TO FIND THAT PETITIONERS
JOINED THE CONSPIRACY, I CANNOT BELIEVE THE ERRONEOUS CHARGE WAS
PREJUDICIAL. 

THERE ARE, OF COURSE, FURTHER POSSIBILITIES OF PREJUDICE.  AS STATED
IN THE BERGER CASE, SUPRA, P. 82, "THE GENERAL RULE THAT ALLEGATIONS
AND PROOF MUST CORRESPOND IS BASED UPON THE OBVIOUS REQUIREMENTS (1)
THAT THE ACCUSED SHALL BE DEFINITELY INFORMED AS TO THE CHARGES AGAINST
HIM, SO THAT HE MAY BE ENABLED TO PRESENT HIS DEFENSE AND NOT BE TAKEN
BY SURPRISE BY THE EVIDENCE OFFERED AT THE TRIAL; AND (2) THAT HE MAY
BE PROTECTED AGAINST ANOTHER PROSECUTION FOR THE SAME OFFENSE."  BUT NO
SURPRISE IS SHOWN.  THE OVERT ACTS CHARGED IN THE INDICTMENT AGAINST
PETITIONERS WERE THOSE IMPLICATING THEM IN THE CONSPIRACY IN WHICH EACH
PARTICIPATED.  ALL OF THE OVERT ACTS CHARGED WERE ESTABLISHED BY THE
EVIDENCE.  AND IT WOULD SEEM EVIDENT ON THE FACE OF THE INDICTMENT THAT
PETITIONERS WOULD KNOW THAT THEY MUST BE PREPARED TO DEFEND AGAINST
PROOF THAT THEY CONSPIRED WITH AT LEAST ONE OF THE OTHER DEFENDANTS. 
IT IS DIFFICULT TO SEE HOW PETITIONERS WOULD BE MORE MISLED HERE THAN
IF A SINGLE CONSPIRACY HAD BEEN CHARGED BUT SOME OF THE DEFENDANTS WERE
NOT SHOWN TO BE CONNECTED WITH IT.  AND IT IS CLEAR THAT PETITIONERS
WERE ADEQUATELY PROTECTED AGAINST A SECOND PROSECUTION.  THE INDICTMENT
AND THE EVIDENCE ARE AVAILABLE TO DISCLOSE THE PROOF ON WHICH THE
CONVICTIONS RESTED.  PAROLE EVIDENCE IS LIKEWISE AVAILABLE TO SHOW THE
SUBJECT MATTER OF THE FORMER CONVICTION.  BARTELL V. UNITED STATES, 227
U.S. 427, 433. 

THE SEVERAL CONSPIRACIES COULD HAVE BEEN JOINED AS SEPARATE COUNTS IN
ONE INDICTMENT.  FOR THEY WERE PLAINLY "ACTS OR TRANSACTIONS OF THE
SAME CLASS OF CRIMES OR OFFENSES" WITHIN THE MEANING OF 18 U.S.C. SEC.
557.  THE OBJECTION THAT THEY WERE NOT SO JOINED BUT WERE LUMPED
TOGETHER AS ONE CONSPIRACY IS PURELY FORMAL, AS THE CIRCUIT COURT OF
APPEALS SAID, WHERE, AS HERE, IT APPEARS THAT THERE WAS NO PREJUDICE. 

FN1  BEFORE TRIAL A SEVERANCE WAS GRANTED ON MOTION OF THE PROSECUTOR
AS TO FOUR DEFENDANTS.  THE INDICTMENT WAS NOL-PROSSED AS TO ONE. 
EIGHT PLEADED GUILTY BEFORE TRIAL.  NINETEEN WERE BROUGHT TO TRIAL. 
ONE PLEADED GUILTY DURING THE TRIAL AND A NOLLE PROSEQUI WAS ENTERED AS
TO ANOTHER.  THE CASE WAS SEVERED AS TO ANOTHER WHO BECAME ILL DURING
THE TRIAL.  VERDICTS OF ACQUITTAL WERE DIRECTED AS TO THREE.  OF THE
THIRTEEN WHOSE CASES WERE SUBMITTED TO THE JURY, TWO WERE ACQUITTED. 
THE JURY DISAGREED AS TO FOUR.  THE REMAINING SEVEN, INCLUDING
PETITIONERS, WERE CONVICTED. 
..END :









AMERICAN TOBACCO CO. V. U.S., 328 U.S. 781 


ARGUED NOVEMBER 7, 8, 1945.  - DECIDED JUNE 10, 1946.  - 147 F.2D 93,
AFFIRMED. 


1.  WHEN THERE IS A COMBINATION OR CONSPIRACY TO CONTROL AND DOMINATE
INTERSTATE TRADE AND COMMERCE IN A COMMODITY, COUPLED WITH THE POWER
AND INTENT TO EXCLUDE COMPETITORS TO A SUBSTANTIAL EXTENT, THE CRIME OF
MONOPOLIZATION UNDER SEC. 2 OF THE SHERMAN ANTI-TRUST ACT IS COMPLETE;
AND THE ACTUAL EXCLUSION OF COMPETITORS IS NOT NECESSARY TO THE CRIME. 
PP. 784-787, 798, 808-815. 

2.  TO SUPPORT A CONVICTION FOR CONSPIRING TO MONOPOLIZE CERTAIN
TRADE IN VIOLATION OF THE SHERMAN ACT, IT IS NOT NECESSARY TO SHOW
POWER AND INTENT TO EXCLUDE ALL COMPETITORS, NOR TO SHOW A CONSPIRACY
TO EXCLUDE ALL COMPETITORS.  P. 789. 

3.  UNDER SEC. 2 OF THE SHERMAN ACT, IT IS THE CRIME OF MONOPOLIZING
FOR PARTIES TO COMBINE OR CONSPIRE TO ACQUIRE OR MAINTAIN THE POWER TO
EXCLUDE COMPETITORS FROM ANY PART OF THE TRADE OR COMMERCE AMONG THE
SEVERAL STATES OR WITH FOREIGN NATIONS, PROVIDED (A) THEY ALSO HAVE
SUCH A POWER THAT THEY ARE ABLE, AS A GROUP, TO EXCLUDE ACTUAL OR
POTENTIAL COMPETITION FROM THE FIELD AND (B) THEY HAVE THE INTENT AND
PURPOSE TO EXERCISE THAT POWER.  P. 809. 

4.  IT IS NOT THE FORM OF THE COMBINATION OR THE PARTICULAR MEANS
USED BUT THE RESULT TO BE ACHIEVED THAT THE STATUTE CONDEMNS.  P. 809. 

5.  IT IS NOT IMPORTANT WHETHER THE MEANS USED TO ACCOMPLISH THE
UNLAWFUL OBJECTIVE ARE IN THEMSELVES LAWFUL OR UNLAWFUL.  P. 809. 

6.  NO FORMAL AGREEMENT IS NECESSARY TO CONSTITUTE AN UNLAWFUL
CONSPIRACY.  P. 809. 

7.  THE ESSENTIAL COMBINATION OR CONSPIRACY IN VIOLATION OF THE
SHERMAN ACT MAY BE FOUND IN A COURSE OF DEALING OR OTHER CIRCUMSTANCES
AS WELL AS IN AN EXCHANGE OF WORDS.  PP. 809, 810. 

8.  NEITHER PROOF OF EXERTION OF THE POWER TO EXCLUDE NOR PROOF OF
ACTUAL EXCLUSION OF EXISTING OR POTENTIAL COMPETITORS IS ESSENTIAL TO
SUSTAIN A CHARGE OF MONOPOLIZATION UNDER THE SHERMAN ACT.  P. 810. 

9.  A COMBINATION MAY BE ONE IN RESTRAINT OF INTERSTATE TRADE OR
COMMERCE OR TO MONOPOLIZE A PART OF SUCH TRADE OR COMMERCE IN VIOLATION
OF THE SHERMAN ACT, ALTHOUGH SUCH RESTRAINT OR MONOPOLY MAY NOT HAVE
BEEN ACTUALLY ATTAINED TO ANY HARMFUL EXTENT.  P. 811. 

10.  THE MATERIAL CONSIDERATION IN DETERMINING WHETHER A MONOPOLY
EXISTS IS NOT THAT PRICES ARE RAISED AND THAT COMPETITION ACTUALLY IS
EXCLUDED BUT THAT POWER EXISTS TO RAISE PRICES OR TO EXCLUDE
COMPETITION WHEN IT IS DESIRED TO DO SO.  P. 811. 

11.  UNITED STATES V. ALUMINUM CO. OF AMERICA, 148 F.2D 416,
APPROVED.  PP. 811-814. 

12.  SEPARATE CONVICTIONS FOR A CONSPIRACY TO RESTRAIN TRADE AND FOR
A CONSPIRACY TO MONOPOLIZE TRADE DO NOT AMOUNT TO DOUBLE JEOPARDY OR TO
A MULTIPLICITY OF PUNISHMENT IN A SINGLE PROCEEDING CONTRARY TO THE
FIFTH AMENDMENT, SINCE THEY ARE SEPARATE STATUTORY OFFENSES, ONE BEING
MADE CRIMINAL BY SEC. 1 AND THE OTHER BY SEC. 2 OF THE SHERMAN ACT. 
BRAVERMAN V. UNITED STATES, 317 U.S. 49, DISTINGUISHED.  PP. 787, 788. 

13.  SEPARATE CONVICTIONS FOR MONOPOLIZATION AND FOR CONSPIRING TO
MONOPOLIZE IN VIOLATION OF THE SHERMAN ACT DO NOT RESULT IN MULTIPLE
PUNISHMENT CONTRARY TO THE FIFTH AMENDMENT, SINCE THEY ARE SEPARATE
OFFENSES.  UNITED STATES V. RABINOWICH, 238 U.S. 78; PINKERTON V.
UNITED STATES, 328 U.S. 640.  PP. 788, 789. 

AMERICAN TOBACCO CO. ET AL. V. UNITED STATES. 

NO. 18.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT.* 

*TOGETHER WITH NO. 19, LIGGETT & MYERS TOBACCO CO. ET AL. V. UNITED
STATES, AND NO. 20, R.J. REYNOLDS TOBACCO CO. ET AL. V. UNITED STATES,
ON CERTIORARI TO THE SAME COURT, ARGUED AND DECIDED ON THE SAME DATES. 

PETITIONERS WERE CONVICTED OF VIOLATING SECS. 1 AND 2 OF THE SHERMAN
ANTI-TRUST ACT.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  147 F.2D 93. 
THIS COURT GRANTED CERTIORARI "LIMITED TO THE QUESTION WHETHER ACTUAL
EXCLUSION OF COMPETITORS IS NECESSARY TO THE CRIME OF MONOPOLIZATION
UNDER SEC. 2 OF THE SHERMAN ACT."  324 U.S. 836.  A PETITION FOR
REHEARING AND ENLARGEMENT OF THE SCOPE OF REVIEW IN NO. 20 WAS DENIED. 
324 U.S. 891.  AFFIRMED, P. 815. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS ARE THE AMERICAN TOBACCO COMPANY, LIGGETT & MYERS
TOBACCO COMPANY, R. J. REYNOLDS TOBACCO COMPANY,  FN1  AMERICAN
SUPPLIERS, INC., A SUBSIDIARY OF AMERICAN, AND CERTAIN OFFICIALS OF THE
RESPECTIVE COMPANIES WHO WERE CONVICTED BY A JURY, IN THE DISTRICT
COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY, OF
VIOLATING SECS. 1 AND 2 OF THE SHERMAN ANTI-TRUST ACT, PURSUANT TO AN
INFORMATION FILED JULY 24, 1940, AND MODIFIED OCTOBER 31, 1940. 

EACH PETITIONER WAS CONVICTED ON FOUR COUNTS:  (1) CONSPIRACY IN
RESTRAINT OF TRADE, (2) MONOPOLIZATION, (3) ATTEMPT TO MONOPOLIZE, AND
(4) CONSPIRACY TO MONOPOLIZE.  EACH COUNT RELATED TO INTERSTATE AND
FOREIGN TRADE AND COMMERCE IN TOBACCO.  NO SENTENCE WAS IMPOSED UNDER
THE THIRD COUNT AS THE COURT HELD THAT THAT COUNT WAS MERGED IN THE
SECOND.  EACH PETITIONER WAS FINED $5,000 ON EACH OF THE OTHER COUNTS,
MAKING $15,000 FOR EACH PETITIONER AND A TOTAL OF $255,000.  SEVEN
OTHER DEFENDANTS WERE FOUND NOT GUILTY AND A NUMBER OF THE ORIGINAL
DEFENDANTS WERE SEVERED FROM THE PROCEEDINGS PURSUANT TO STIPULATION. 

THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT, ON DECEMBER 8,
1944, AFFIRMED EACH CONVICTION.  147 F.2D 93.  ALL THE GROUNDS URGED
FOR REVIEW OF THOSE JUDGMENTS WERE CONSIDERED HERE ON PETITIONS FOR
CERTIORARI.  ON MARCH 26, 1945, THIS COURT GRANTED THE PETITIONS BUT
EACH WAS "LIMITED TO THE QUESTION WHETHER ACTUAL EXCLUSION OF
COMPETITORS IS NECESSARY TO THE CRIME OF MONOPOLIZATION UNDER SEC. 2 OF
THE SHERMAN ACT."  324 U.S. 836.  ON APRIL 19, 1945, REYNOLDS, ET AL.,
FILED A PETITION FOR REHEARING AND ENLARGEMENT OF THE SCOPE OF REVIEW
IN THEIR CASE BUT IT WAS DENIED.  324 U.S. 891.  THIS OPINION IS
LIMITED TO THE CONVICTIONS UNDER SEC. 2 OF THE SHERMAN ACT  FN2  AND
DEALS ESPECIALLY WITH THOSE FOR MONOPOLIZATION UNDER THE SECOND COUNT
OF THE INFORMATION. 

THE ISSUE THUS EMPHASIZED IN THE ORDER ALLOWING CERTIORARI AND
PRIMARILY ARGUED BY THE PARTIES HAS NOT BEEN PREVIOUSLY DECIDED BY THIS
COURT.  IT IS RAISED BY THE FOLLOWING INSTRUCTIONS WHICH WERE
ESPECIALLY APPLICABLE TO THE SECOND COUNT  FN3  BUT WERE RELATED ALSO
TO THE OTHER COUNTS UNDER SEC. 2 OF THE SHERMAN ACT: 

"NOW, THE TERM 'MONOPOLIZE' AS USED IN SECTION 2 OF THE SHERMAN ACT,
AS WELL AS IN THE LAST THREE COUNTS OF THE INFORMATION, MEANS THE JOINT
ACQUISITION OR MAINTENANCE BY THE MEMBERS OF A CONSPIRACY FORMED FOR
THAT PURPOSE, OF THE POWER TO CONTROL AND DOMINATE INTERSTATE TRADE AND
COMMERCE IN A COMMODITY TO SUCH AN EXTENT THAT THEY ARE ABLE, AS A
GROUP, TO EXCLUDE ACTUAL OR POTENTIAL COMPETITORS FROM THE FIELD,
ACCOMPANIED WITH THE INTENTION AND PURPOSE TO EXERCISE SUCH POWER. 

"THE PHRASE 'ATTEMPT TO MONOPOLIZE' MEANS THE EMPLOYMENT OF METHODS,
MEANS AND PRACTICES WHICH WOULD, IF SUCCESSFUL, ACCOMPLISH
MONOPOLIZATION, AND WHICH, THOUGH FALLING SHORT, NEVERTHELESS APPROACH
SO CLOSE AS TO CREATE A DANGEROUS PROBABILITY OF IT, WHICH METHODS,
MEANS AND PRACTICES ARE SO EMPLOYED BY THE MEMBERS OF AND PURSUANT TO A
COMBINATION OR CONSPIRACY FORMED FOR THE PURPOSE OF SUCH
ACCOMPLISHMENT. 

"IT IS IN NO RESPECT A VIOLATION OF THE LAW THAT A NUMBER OF
INDIVIDUALS OR CORPORATIONS, EACH ACTING FOR HIMSELF OR ITSELF, MAY OWN
OR CONTROL A LARGE PART, OR EVEN ALL OF A PARTICULAR COMMODITY, OR ALL
THE BUSINESS IN A PARTICULAR COMMODITY. 

"AN ESSENTIAL ELEMENT OF THE ILLEGAL MONOPOLY OR MONOPOLIZATION
CHARGED IN THIS CASE IS THE EXISTENCE OF A COMBINATION OR CONSPIRACY TO
ACQUIRE AND MAINTAIN THE POWER TO EXCLUDE COMPETITORS TO A SUBSTANTIAL
EXTENT. 

"THUS YOU WILL SEE THAT AN INDISPENSABLE INGREDIENT OF EACH OF THE
OFFENSES CHARGED IN THE INFORMATION IS A COMBINATION OR CONSPIRACY." 

WHILE THE QUESTION BEFORE US, AS BRIEFLY STATED IN THE COURT'S ORDER,
MAKES NO EXPRESS REFERENCE TO THE INCLUSION, IN THE CRIME OF
"MONOPOLIZATION," OF THE ELEMENT OF "A COMBINATION OR CONSPIRACY TO
ACQUIRE AND MAINTAIN THE POWER TO EXCLUDE COMPETITORS TO A SUBSTANTIAL
EXTENT," YET THE TRIAL COURT, IN ITS ABOVE QUOTED INSTRUCTIONS TO THE
JURY, DESCRIBED SUCH A COMBINATION OR CONSPIRACY AS AN "ESSENTIAL
ELEMENT" AND AN "INDISPENSABLE INGREDIENT" OF THAT CRIME IN THE PRESENT
CASES.  WE THEREFORE INCLUDE THAT ELEMENT IN DETERMINING WHETHER THE
FOREGOING INSTRUCTIONS CORRECTLY STATED THE LAW AS APPLIED TO THESE
CASES.  IN DISCUSSING THE LEGAL ISSUE WE SHALL ASSUME THAT SUCH A
COMBINATION OR CONSPIRACY TO MONOPOLIZE HAS BEEN ESTABLISHED.  BECAUSE
OF THE PRESENCE OF THAT ELEMENT, WE DO NOT HAVE HERE THE HYPOTHETICAL
CASE OF PARTIES WHO THEMSELVES HAVE NOT "ACHIEVED" MONOPOLY BUT HAVE
HAD MONOPOLY "THRUST UPON" THEM.  SEE UNITED STATES V. ALUMINUM CO. OF
AMERICA, 148 F.2D 416, 429. 

THE PRESENT CASES ARE NOT COMPARABLE TO CASES WHERE THE PARTIES, FOR
EXAMPLE, MERELY HAVE MADE A NEW DISCOVERY OR AN ORIGINAL ENTRY INTO A
NEW FIELD AND UNEXPECTEDLY OR UNAVOIDABLY HAVE FOUND THEMSELVES
ENJOYING A MONOPOLY COUPLED WITH POWER AND INTENT TO MAINTAIN IT.  IN
THE ALUMINUM CO. CASE, DISCUSSED LATER, THERE WAS A USE OF VARIOUS
UNLAWFUL MEANS TO ESTABLISH OR MAINTAIN THE MONOPOLY.  HERE WE HAVE THE
ADDITIONAL ELEMENT OF A COMBINATION OR CONSPIRACY TO ACQUIRE OR
MAINTAIN THE POWER TO EXCLUDE COMPETITORS THAT IS CHARGED IN THE FOURTH
COUNT. 

THE PRESENT OPINION IS NOT A FINDING BY THIS COURT ONE WAY OR THE
OTHER ON THE MANY CLOSELY CONTESTED ISSUES OF FACT.  THE PRESENT
OPINION IS AN APPLICATION OF THE LAW TO THE FACTS AS THEY WERE FOUND BY
THE JURY AND WHICH THE CIRCUIT COURT OF APPEALS HELD SHOULD NOT BE SET
ASIDE.  FN4 THE TRIAL COURT'S INSTRUCTION DID NOT CALL FOR PROOF OF AN
"ACTUAL EXCLUSION" OF COMPETITORS ON THE PART OF THE PETITIONERS.  FOR
THE PURPOSES OF THIS OPINION, WE SHALL ASSUME, THEREFORE, THAT AN
ACTUAL EXCLUSION OF COMPETITORS BY THE PETITIONERS WAS NOT CLAIMED OR
ESTABLISHED BY THE PROSECUTION.  SIMPLY STATED THE ISSUE IS:  DO THE
FACTS CALLED FOR BY THE TRIAL COURT'S DEFINITION OF MONOPOLIZATION
AMOUNT TO A VIOLATION OF SEC. 2 OF THE SHERMAN ACT? 

BEFORE REACHING THAT ISSUE WE SHALL TOUCH UPON ANOTHER CONTENTION
WHICH THE PETITIONERS HAVE MADE AND WHICH THE GOVERNMENT HAS UNDERTAKEN
TO ANSWER.  THIS IS THE CONTENTION THAT THE SEPARATE CONVICTIONS
RETURNED UNDER THE CONSPIRACY COUNT IN RESTRAINT OF TRADE AND UNDER THE
CONSPIRACY COUNT TO MONOPOLIZE TRADE AMOUNT TO DOUBLE JEOPARDY, OR TO A
MULTIPLICITY OF PUNISHMENT IN A SINGLE PROCEEDING, AND THEREFORE
VIOLATE THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION.  FN5 THE
PETITIONERS ARGUE THAT SEC. 2 OF THE SHERMAN ACT SHOULD BE INTERPRETED
TO REQUIRE PROOF OF ACTUAL EXCLUSION OF COMPETITORS IN ORDER TO SHOW
"MONOPOLIZATION," AND THEY CLAIM THAT ONLY THUS CAN A "CONSPIRACY TO
MONOPOLIZE" TRADE BE SUFFICIENTLY DIFFERENTIATED FROM A "CONSPIRACY IN
RESTRAINT OF" TRADE AS TO AVOID SUBJECTING THE PARTIES ACCUSED UNDER
THOSE COUNTS TO DOUBLE JEOPARDY. 

PETITIONERS SEEK SUPPORT FOR THESE CONTENTIONS AS TO THE TWO
CONSPIRACY COUNTS FROM THE PRINCIPLES STATED IN BRAVERMAN V. UNITED
STATES, 317 U.S. 49, AND IN BLOCKBURGER V. UNITED STATES, 284 U.S.
299.  ON THE AUTHORITY OF THE BRAVERMAN CASE, PETITIONERS CLAIM THAT
THERE IS BUT ONE CONSPIRACY, NAMELY, A CONSPIRACY TO FIX PRICES.  IN
CONTRAST TO THE SINGLE CONSPIRACY DESCRIBED IN THAT CASE IN SEPARATE
COUNTS, ALL CHARGED UNDER THE GENERAL CONSPIRACY STATUTE, SEC. 37,
CRIMINAL CODE, 35 STAT. 1096, 18 U.S.C. SEC. 88, WE HAVE HERE SEPARATE
STATUTORY OFFENSES, ONE A CONSPIRACY IN RESTRAINT OF TRADE THAT MAY
STOP SHORT OF MONOPOLY, AND THE OTHER A CONSPIRACY TO MONOPOLIZE THAT
MAY NOT BE CONTENT WITH RESTRAINT SHORT OF MONOPOLY.  ONE IS MADE
CRIMINAL BY SEC. 1 AND THE OTHER BY SEC. 2 OF THE SHERMAN ACT. 

WE BELIEVE ALSO THAT IN ACCORDANCE WITH THE BLOCKBURGER CASE, SECS. 1
AND 2 OF THE SHERMAN ACT REQUIRE PROOF OF CONSPIRACIES WHICH ARE
RECIPROCALLY DISTINGUISHABLE FROM AND INDEPENDENT OF EACH OTHER
ALTHOUGH THE OBJECTS OF THE CONSPIRACIES MAY PARTIALLY OVERLAP.  CF.
UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 226.  IN THE
PRESENT CASES, THE COURT BELOW HAS FOUND THAT THERE WAS MORE THAN
SUFFICIENT EVIDENCE TO ESTABLISH A CONSPIRACY IN RESTRAINT OF TRADE BY
PRICE FIXING AND OTHER MEANS, AND ALSO A CONSPIRACY TO MONOPOLIZE TRADE
WITH THE POWER AND INTENT TO EXCLUDE ACTUAL AND POTENTIAL COMPETITORS
FROM AT LEAST A PART OF THE TOBACCO INDUSTRY. 

PETITIONERS FURTHER SUGGEST THAT THE SECOND COUNT (TO MONOPOLIZE),
AND THE FOURTH COUNT (TO CONSPIRE TO MONOPOLIZE), MAY LEAD TO MULTIPLE
PUNISHMENT, CONTRARY TO THE PRINCIPLE OF THE BLOCKBURGER CASE. 
PETITIONERS ARGUE THAT THE GOVERNMENT'S THEORY OF MONOPOLIZATION CALLS
FOR PROOF OF A JOINT ENTERPRISE WITH POWER AND INTENT TO EXCLUDE
COMPETITORS AND, THEREFORE, THAT THE CONSPIRACY TO MONOPOLIZE MUST BE A
PART OF THAT PROOF.  IT LONG HAS BEEN SETTLED, HOWEVER, THAT A
"CONSPIRACY TO COMMIT A CRIME IS A DIFFERENT OFFENSE FROM THE CRIME
THAT IS THE OBJECT OF THE CONSPIRACY."  UNITED STATES V. RABINOWICH,
238 U.S. 78, 85; PINKERTON V. UNITED STATES, 328 U.S. 640, 643. 
PETITIONERS, FOR EXAMPLE, MIGHT HAVE BEEN CONVICTED HERE OF A
CONSPIRACY TO MONOPOLIZE WITHOUT EVER HAVING ACQUIRED THE POWER TO
CARRY OUT THE OBJECT OF THE CONSPIRACY, I.E., TO EXCLUDE ACTUAL AND
POTENTIAL COMPETITORS FROM THE CIGARETTE FIELD.  CF. UNITED STATES V.
SHAPIRO, 103 F.2D 775, 776. 

ALTHOUGH THERE IS NO ISSUE OF FACT OR QUESTION AS TO THE SUFFICIENCY
OF THE EVIDENCE TO BE DISCUSSED HERE, NEVERTHELESS, IT IS NECESSARY TO
SUMMARIZE THE PRINCIPAL FACTS OF THAT CONSPIRACY TO MONOPOLIZE CERTAIN
TRADE, WHICH WAS CHARGED IN THE FOURTH COUNT.  THESE FACTS DEMONSTRATE
ALSO THE VIGOR AND NATURE OF THE INTENT OF THE PETITIONERS TO EXCLUDE
COMPETITORS IN ORDER TO MAINTAIN THAT MONOPOLY IF NEED OR OCCASION
SHOULD OFFER ITSELF TO ATTEMPT SUCH AN EXCLUSION.  TO SUPPORT THE
VERDICTS IT WAS NOT NECESSARY TO SHOW POWER AND INTENT TO EXCLUDE ALL
COMPETITORS, OR TO SHOW A CONSPIRACY TO EXCLUDE ALL COMPETITORS.  THE
REQUIREMENT STATED TO THE JURY AND CONTAINED IN THE STATUTE WAS ONLY
THAT THE OFFENDERS SHALL "MONOPOLIZE ANY PART OF THE TRADE OR COMMERCE
AMONG THE SEVERAL STATES, OR WITH FOREIGN NATIONS."  THIS PARTICULAR
CONSPIRACY MAY WELL HAVE DERIVED SPECIAL VITALITY, IN THE EYES OF THE
JURY, FROM THE FACT THAT ITS EXISTENCE WAS ESTABLISHED, NOT THROUGH THE
PRESENTATION OF A FORMAL WRITTEN AGREEMENT, BUT THROUGH THE EVIDENCE OF
WIDESPREAD AND EFFECTIVE CONDUCT ON THE PART OF PETITIONERS IN RELATION
TO THEIR EXISTING OR POTENTIAL COMPETITORS. 

THE THREE YEARS AT ISSUE IN THE CHARGES MADE WERE THOSE IMMEDIATELY
PRECEDING THE FILING OF THE INFORMATIONS ON JULY 24, 1940,  FN6  BUT
FOR CONVENIENCE THE STATISTICS RELIED UPON GENERALLY HAVE BEEN THOSE
FOR THE CALENDAR YEARS 1937, 1938 AND 1939.  BECAUSE OF THE
CIRCUMSTANTIAL NATURE OF MOST OF THE EVIDENCE AND BECAUSE OF THE
ESSENTIALITY OF FIGURES FOR COMPARATIVE YEARS IN ESTABLISHING ANY
RESTRAINT OF TRADE OR MONOPOLY, THE RECORD ALSO CONTAINS MUCH IMPORTANT
MATERIAL DRAWN FROM EARLIER YEARS.  SOME APPRECIATION OF THE HISTORY
AND DEVELOPMENT OF THE CIGARETTE INDUSTRY IS ESSENTIAL TO AN
UNDERSTANDING OF THE CASES.  HOWEVER, IN APPLYING THE LAW TO THE
CENTRAL ISSUE IN THESE CASES, THE VARIATIONS AMONG THE SEVERAL
PETITIONERS PARTICIPATING IN EACH STEP ARE NOT MATERIAL IN REACHING THE
CONCLUSION ON THE LEGAL QUESTION BEFORE US.  THERE WERE MANY VARIATIONS
IN THE BUSINESS ACTIVITIES OF THE SEVERAL PETITIONERS.  IT WOULD BE
CUMBERSOME AND DIFFICULT TO STATE EXACTLY WHICH PETITIONERS AND WHAT
COMBINATION OF PETITIONERS DID EACH OF THE ACTS MENTIONED.  IT IS,
HOWEVER, NOT FAIR TO REFER, WITHOUT EXPLANATION, TO ALL THE ACTS SIMPLY
AS HAVING BEEN DONE BY "THE PETITIONERS."  IN ITS USUAL SENSE, "THE
PETITIONERS" WOULD INCLUDE ALL OF THEM.  OBVIOUSLY, HOWEVER, THE
CORPORATE AND INDIVIDUAL PETITIONERS DID NOT AND COULD NOT ALL ACT
PRECISELY ALIKE.  TO REFER ONLY TO "THE CORPORATE PETITIONERS" WOULD BE
UNSATISFACTORY BECAUSE, IN ADDITION TO AMERICAN, LIGGETT AND REYNOLDS,
THERE IS THE CORPORATE PETITIONER, AMERICAN SUPPLIERS, INC.  IT
PARTICIPATED IN ONLY A LIMITED NUMBER OF ACTIVITIES AND THEN ONLY AS A
SUBSIDIARY OF AMERICAN.  FURTHERMORE, AS POINTED OUT BY REYNOLDS IN ITS
PETITION FOR REHEARING AND FOR ENLARGEMENT OF SCOPE OF REVIEW IN ITS
CASE, REYNOLDS' PARTICIPATION IN SOME PARTS OF THE COMBINATION OR
CONSPIRACY DIFFERS IN MANY RESPECTS FROM THAT OF AMERICAN AND LIGGETT. 
THE FACT IS THAT REYNOLDS, IN 1913, ACTUALLY BROKE INTO THE CIGARETTE
FIELD WITH ITS CAMEL CIGARETTES, AND, AS A VIGOROUS COMPETITOR OF
AMERICAN, LIGGETT AND P. LORILLARD COMPANY, REVOLUTIONIZED THE
CIGARETTE INDUSTRY.  GRADUALLY REYNOLDS GREW TO BE ONE OF THE "BIG
THREE" WITH AMERICAN AND LIGGETT.  THE LATER EVIDENCE THEN TENDS TO
SHOW THAT THOSE THREE, IN SPITE OF THE EARLIER COMPETITIVE HISTORY OF
REYNOLDS, HAVE OPERATED TOGETHER IN RECENT YEARS IN VIOLATION OF THE
SHERMAN ACT.  SIMILARLY, MUCH OF THE EVIDENCE RELATING TO THE PURCHASE
OF TOBACCO AT AUCTION DOES NOT APPLY IN PRECISELY EQUAL DEGREE TO EACH
PETITIONER.  HOWEVER, TAKING THE STORY AS A WHOLE, EACH PETITIONER NOW
HAS BEEN CONVICTED OF THE SAME OFFENSE UNDER LIKE COUNTS AND THE
PROBLEM BEFORE US IS ONLY TO STATE THE RULE OF LAW TO BE APPLIED IN
DEFINING MONOPOLIZATION UNDER THE SHERMAN ACT AS APPLIED TO ALL OF THE
PETITIONERS ALIKE.  TO DISTINGUISH AMONG THEM AT EACH STAGE WOULD NOT
CHANGE THE LEGAL CONCLUSION ON THE ONE ISSUE HERE PRESENTED BUT WOULD
CONFUSE WHAT SHOULD BE A CLEAR SUMMARY OF THE FACTS ESSENTIAL TO AN
UNDERSTANDING OF THAT LEGAL ISSUE.  ACCORDINGLY, EACH REFERENCE TO
"PETITIONERS" IN THIS RECITAL WILL MEAN "SOME OR ALL OF THE PETITIONERS
AS DISCLOSED BY THE RECORD." 

FIRST OF ALL, THE MONOPOLY FOUND BY THE JURY TO EXIST IN THE PRESENT
CASES APPEARS TO HAVE BEEN COMPLETELY SEPARABLE FROM THE OLD AMERICAN
TOBACCO TRUST WHICH WAS DISSOLVED IN 1911.  FN7  THE CONSPIRACY TO
MONOPOLIZE AND THE MONOPOLIZATION CHARGED HERE DO NOT DEPEND UPON PROOF
RELATING TO THE OLD TOBACCO TRUST BUT UPON A DOMINANCE AND CONTROL BY
PETITIONERS IN RECENT YEARS OVER PURCHASES OF THE RAW MATERIAL AND OVER
THE SALE OF THE FINISHED PRODUCT IN THE FORM OF CIGARETTES.  THE FACT,
HOWEVER, THAT THE PURCHASES OF LEAF TOBACCO AND THE SALES OF SO MANY
PRODUCTS OF THE TOBACCO INDUSTRY HAVE REMAINED LARGELY WITHIN THE SAME
GENERAL GROUP OF BUSINESS ORGANIZATIONS FOR OVER A GENERATION,
INEVITABLY HAS CONTRIBUTED TO THE EASE WITH WHICH CONTROL OVER
COMPETITION WITHIN THE INDUSTRY AND THE MOBILIZATION OF POWER TO RESIST
NEW COMPETITION CAN BE EXERCISED.  A FRIENDLY RELATIONSHIP WITHIN SUCH
A LONG ESTABLISHED INDUSTRY IS, IN ITSELF, NOT ONLY NATURAL BUT
COMMENDABLE AND BENEFICIAL, AS LONG AS IT DOES NOT BREED ILLEGAL
ACTIVITIES.  SUCH A COMMUNITY OF INTEREST IN ANY INDUSTRY, HOWEVER,
PROVIDES A NATURAL FOUNDATION FOR WORKING POLICIES AND UNDERSTANDINGS
FAVORABLE TO THE INSIDERS AND UNFAVORABLE TO OUTSIDERS.  THE VERDICTS
INDICATE THAT PRACTICES OF AN INFORMAL AND FLEXIBLE NATURE WERE ADOPTED
AND THAT THE RESULTS WERE SO UNIFORMLY BENEFICIAL TO THE PETITIONERS IN
PROTECTING THEIR COMMON INTERESTS AS AGAINST THOSE OF COMPETITORS THAT,
ENTIRELY FROM CIRCUMSTANTIAL EVIDENCE, THE JURY FOUND THAT A
COMBINATION OR CONSPIRACY EXISTED AMONG THE PETITIONERS FROM 1937 TO
1940, WITH POWER AND INTENT TO EXCLUDE COMPETITORS TO SUCH A
SUBSTANTIAL EXTENT AS TO VIOLATE THE SHERMAN ACT AS INTERPRETED BY THE
TRIAL COURT.  FN8 

THE POSITION OF THE PETITIONERS IN THE CIGARETTE INDUSTRY FROM 1931
TO 1939 IS CLEAR FROM THE FOLLOWING TABLES:

       PERCENTAGE OF TOTAL U.S. PRODUCTION OF SMALL CIGARETTES -

          1931-1939. 

                           (CHART OMITTED)

             VOLUME OF CIGARETTE PRODUCTION - 1931-1939. 

                      (BILLIONS OF CIGARETTES.) 

                           (CHART OMITTED) 

THE FIRST TABLE SHOWS THAT, ALTHOUGH AMERICAN, LIGGETT AND REYNOLDS
GRADUALLY DROPPED IN THEIR PERCENTAGE OF THE NATIONAL DOMESTIC
CIGARETTE PRODUCTION FROM 90.7% IN 1931 TO 73.3%, 71% AND 68%,
RESPECTIVELY, IN 1937, 1938 AND 1939, THEY HAVE ACCOUNTED AT ALL TIMES
FOR MORE THAN 68%, AND USUALLY FOR MORE THAN 75%, OF THE NATIONAL
PRODUCTION.  THE BALANCE OF THE CIGARETTE PRODUCTION HAS COME FROM SIX
OTHER COMPANIES.  NO ONE OF THOSE SIX EVER HAS PRODUCED MORE THAN THE
10.6% ONCE REACHED BY BROWN & WILLIAMSON IN 1939.  THE SECOND TABLE
SHOWS THAT, WHILE THE PERCENTAGE OF CIGARETTES PRODUCED BY AMERICAN,
LIGGETT AND REYNOLDS IN THE UNITED STATES DROPPED GRADUALLY FROM 90.7%
TO 68%, THEIR COMBINED VOLUME OF PRODUCTION ACTUALLY INCREASED FROM 106
BILLION IN 1931 TO ABOUT 125 BILLION, 122 BILLION AND 123 BILLION,
RESPECTIVELY, IN 1937, 1938 AND 1939.  THE REMAINDER OF THE PRODUCTION
WAS DIVIDED AMONG THE OTHER SIX COMPANIES.  NO ONE OF THOSE SIX EVER
HAS PRODUCED MORE THAN ABOUT 19 BILLION CIGARETTES A YEAR, WHICH WAS
THE HIGH POINT REACHED BY BROWN & WILLIAMSON IN 1939. 

THE FURTHER DOMINANCE OF AMERICAN, LIGGETT AND REYNOLDS WITHIN THEIR
SPECIAL FIELD OF BURLEY BLEND CIGARETTES, AS COMPARED WITH THE SO
CALLED "10 CENT CIGARETTES," IS ALSO APPARENT.  IN 1939, THE 10 CENT
CIGARETTES CONSTITUTED ABOUT 14 1/2% OF THE TOTAL DOMESTIC CIGARETTE
PRODUCTION.  ACCORDINGLY, THE 68% OF THE TOTAL CIGARETTE PRODUCTION
ENJOYED BY AMERICAN, LIGGETT AND REYNOLDS AMOUNTED TO 80% OF THAT
PRODUCTION WITHIN THEIR SPECIAL FIELD OF CIGARETTES.  THE SECOND TABLE
SHOWS A LIKE SITUATION.  IN 1939, THE 10 CENT CIGARETTES ACCOUNTED FOR
25.6 BILLION OF THE CIGARETTES PRODUCED.  DEDUCTING THIS FROM THE 57.7
BILLION CIGARETTES PRODUCED BY OTHERS THAN AMERICAN, LIGGETT AND
REYNOLDS LEFT ONLY ABOUT 32 BILLION CIGARETTES OF A COMPARABLE GRADE
PRODUCED IN THAT YEAR BY COMPETITORS OF THE "BIG THREE" AS AGAINST THE
123 BILLION PRODUCED BY THEM.  IN ADDITION TO THE COMBINED PRODUCTION
BY AMERICAN, LIGGETT AND REYNOLDS IN 1939 OF OVER 68% OF ALL DOMESTIC
CIGARETTES, THEY ALSO PRODUCED OVER 63% OF THE SMOKING TOBACCO AND OVER
44% OF THE CHEWING TOBACCO.  THEY NEVER WERE IMPORTANT FACTORS IN THE
CIGAR OR SNUFF FIELDS OF THE TOBACCO INDUSTRY. 

THE FOREGOING DEMONSTRATES THE BASIS OF THE CLAIM OF AMERICAN,
LIGGETT AND REYNOLDS TO THE TITLE OF THE "BIG THREE."  THE MARKED
DOMINANCE ENJOYED BY EACH OF THESE THREE, IN ROUGHLY EQUAL PROPORTIONS,
IS EMPHASIZED BY THE FACT THAT THE SMALLEST OF THEM AT ALL TIMES SHOWED
OVER TWICE THE PRODUCTION OF THE LARGEST OUTSIDER.  WITHOUT ADVERSE
CRITICISM OF IT, COMPARATIVE SIZE ON THIS GREAT SCALE INEVITABLY
INCREASED THE POWER OF THESE THREE TO DOMINATE ALL PHASES OF THEIR
INDUSTRY.  "SIZE CARRIES WITH IT AN OPPORTUNITY FOR ABUSE THAT IS NOT
TO BE IGNORED WHEN THE OPPORTUNITY IS PROVED TO HAVE BEEN UTILIZED IN
THE PAST."  UNITED STATES V. SWIFT & CO., 286 U.S. 106, 116.  AN INTENT
TO USE THIS POWER TO MAINTAIN A MONOPOLY WAS FOUND BY THE JURY IN THESE
CASES. 

THE RECORD FURTHER SHOWS THAT THE NET WORTH OF AMERICAN, LIGGETT AND
REYNOLDS IN TERMS OF THEIR TOTAL ASSETS, LESS CURRENT LIABILITIES, ROSE
FROM $277,000,000 IN 1912 TO OVER $551,000,000 IN 1939.  THEIR NET
ANNUAL EARNINGS, BEFORE PAYMENT OF INTEREST AND DIVIDENDS, ROSE FROM
ABOUT $28,000,000 IN 1912 TO OVER $75,000,000 IN 1939.  THE RECORD IS
FULL OF EVIDENCE OF THE CLOSE RELATIONSHIP BETWEEN THEIR LARGE
EXPENDITURES FOR NATIONAL ADVERTISING OF CIGARETTES AND RESULTING
VOLUMES OF SALES.  IN EACH OF THE YEARS 1937, 1938 AND 1939, AMERICAN,
LIGGETT AND REYNOLDS EXPENDED A TOTAL OF OVER $40,000,000 A YEAR FOR
ADVERTISING.  SUCH ADVERTISING IS NOT HERE CRITICIZED AS A BUSINESS
EXPENSE.  SUCH ADVERTISING MAY BENEFIT INDIRECTLY THE ENTIRE INDUSTRY,
INCLUDING THE COMPETITORS OF THE ADVERTISERS.  SUCH TREMENDOUS
ADVERTISING, HOWEVER, IS ALSO A WIDELY PUBLISHED WARNING THAT THESE
COMPANIES POSSESS AND KNOW HOW TO USE A POWERFUL OFFENSIVE AND
DEFENSIVE WEAPON AGAINST NEW COMPETITION.  NEW COMPETITION DARE NOT
ENTER SUCH A FIELD, UNLESS IT BE WELL SUPPORTED BY COMPARABLE NATIONAL
ADVERTISING.  LARGE INVENTORIES OF LEAF TOBACCO, AND LARGE SUMS
REQUIRED FOR PAYMENT OF FEDERAL TAXES IN ADVANCE OF ACTUAL SALES,
FURTHER EMPHASIZE THE EFFECTIVENESS OF A WELL FINANCED MONOPOLY IN THIS
FIELD AGAINST POTENTIAL COMPETITORS IF THERE MERELY EXISTS AN INTENT TO
EXCLUDE SUCH COMPETITORS.  PREVENTION OF ALL POTENTIAL COMPETITION IS
THE NATURAL PROGRAM FOR MAINTAINING A MONOPOLY HERE, RATHER THAN ANY
PROGRAM OF ACTUAL EXCLUSION.  "PREVENTION" IS CHEAPER AND MORE
EFFECTIVE THAN ANY AMOUNT OF "CURE." 

WITH THIS BACKGROUND OF A SUBSTANTIAL MONOPOLY, AMOUNTING TO OVER TWO
THIRDS OF THE ENTIRE DOMESTIC FIELD OF CIGARETTES, AND TO OVER 80% OF
THE FIELD OF COMPARABLE CIGARETTES, AND WITH THE OPPOSITION CONFINED TO
SEVERAL SMALL COMPETITORS, THE JURY COULD HAVE FOUND FROM THE ACTUAL
OPERATION OF THE PETITIONERS THAT THERE EXISTED A COMBINATION OR
CONSPIRACY AMONG THEM NOT ONLY IN RESTRAINT OF TRADE, BUT TO MONOPOLIZE
A PART OF THE TOBACCO INDUSTRY.  THE TRIAL COURT DESCRIBED THIS
COMBINATION OR CONSPIRACY AS AN "ESSENTIAL ELEMENT" AND "INDISPENSABLE
INGREDIENT" OF THE OFFENSES CHARGED.  IT IS THEREFORE ONLY IN
CONJUNCTION WITH SUCH A COMBINATION OR CONSPIRACY THAT THESE CASES WILL
CONSTITUTE A PRECEDENT.  THE CONSPIRACY SO ESTABLISHED BY THE VERDICTS
UNDER THE SECOND COUNT APPEARS TO HAVE BEEN ONE TO FIX AND CONTROL
PRICES AND OTHER MATERIAL CONDITIONS RELATING TO THE PURCHASE OF RAW
MATERIAL IN THE FORM OF LEAF TOBACCO FOR USE IN THE MANUFACTURE OF
CIGARETTES.  IT ALSO APPEARS TO HAVE BEEN ONE TO FIX AND CONTROL PRICES
AND OTHER MATERIAL CONDITIONS RELATING TO THE DISTRIBUTION AND SALE OF
THE PRODUCT OF SUCH TOBACCO IN THE FORM OF CIGARETTES.  THE JURY FOUND
A CONSPIRACY TO MONOPOLIZE TO A SUBSTANTIAL DEGREE THE LEAF MARKET AND
THE CIGARETTE MARKET.  THE JURY'S VERDICTS ALSO FOUND A POWER AND
INTENT ON THE PART OF THE PETITIONERS TO EXCLUDE COMPETITION TO A
SUBSTANTIAL EXTENT IN THE TOBACCO INDUSTRY. 

                  I. 

THE VERDICTS SHOW THAT THE JURY FOUND THAT THE PETITIONERS CONSPIRED
TO FIX PRICES AND TO EXCLUDE UNDESIRED COMPETITION AGAINST THEM IN THE
PURCHASE OF THE DOMESTIC TYPE OF FLUE-CURED TOBACCO AND OF BURLEY
TOBACCO.  THESE ARE RAW MATERIALS ESSENTIAL TO THE PRODUCTION OF
CIGARETTES OF THE GRADE SOLD BY THE PETITIONERS AND ALSO, TO SOME
EXTENT, OF THE 10 CENT GRADE OF CIGARETTES WHICH CONSTITUTES THE ONLY
SUBSTANTIAL COMPETITION TO AMERICAN, LIGGETT AND REYNOLDS IN THE
CIGARETTE FIELD OF THE DOMESTIC TOBACCO INDUSTRY.  THE TOBACCOS
INVOLVED IN THESE CASES ARE THE FLUE-CURED, BURLEY AND MARYLAND
TOBACCOS.  THE FLUECURED OR BRIGHT TOBACCO IS GROWN IN A NUMBER OF
AREAS CALLED "BELTS."  THESE ARE IN VIRGINIA, NORTH CAROLINA, SOUTH
CAROLINA, GEORGIA AND FLORIDA.  THE TOBACCO TAKES ITS NAME OF FLUE
CURED FROM THE "CURING" PROCESS TO WHICH IT IS SUBJECTED AND WHICH
CONSISTS OF HANGING THE TOBACCO LEAVES IN BARNS HEATED BY A SYSTEM OF
FLUES.  BETWEEN 50% AND 60% OF THE TOTAL FLUE-CURED PRODUCT IS FOR
EXPORT TO ENGLAND.  THE PETITIONERS PURCHASED A COMBINED TOTAL OF
BETWEEN 50% AND 80% OF THE DOMESTIC FLUE-CURED TOBACCO.  THE BURLEY
TOBACCO IS PRODUCED LARGELY IN THE BURLEY BELT IN KENTUCKY AND
TENNESSEE.  IT IS CURED WITHOUT HEATING, BY EXPOSING THE LEAVES TO THE
AIR IN BARNS IN WHICH THEY ARE HUNG.  THE PETITIONERS PURCHASED FROM
60% TO 80% OF THE ANNUAL CROP OF BURLEY.  THE MARYLAND TOBACCO IS GROWN
IN THE SOUTHERN PART OF THAT STATE.  SOME OF IT IS SOLD IN AUCTION
MARKETS, THE REST IS PACKED IN HOGSHEADS AND SOLD IN TWO BALTIMORE
WAREHOUSES BY THE MARYLAND TOBACCO GROWERS' ASSOCIATION AND BY
COMMERCIAL MERCHANTS.  THE GREATER PART OF THE MARYLAND TOBACCO WAS
PURCHASED BY PETITIONERS.  THE CROPS IN THE MORE SOUTHERLY BELTS MATURE
FIRST AND THE BURLEY CROPS ARE NOT READY FOR MARKET UNTIL LATE FALL. 
WHEN THE TOBACCO IS READY FOR MARKET THE FARMERS STRIP, SORT AND GRADE
THE LEAVES ACCORDING TO THEIR JUDGMENT AS TO QUALITY, TIE THEM INTO
BUNDLES CALLED "HANDS" (EXCEPT IN GEORGIA WHERE THE TOBACCO REMAINS
LOOSE), AND TRUCK THEM TO TOBACCO AUCTION MARKETS.  IN THE POSSESSION
OF THE FARMERS THE CROPS ARE PERISHABLE AS THEY REQUIRE A REDRYING
PROCESS.  UNDER THE MODERN SYSTEM OF MARKETING, THE TOBACCO CANNOT BE
STORED TO AWAIT ANOTHER SEASON.  THE FARMERS HAVE NO FACILITIES FOR
REDRYING THE TOBACCO AND THEREFORE MUST SELL THEIR CROPS IN THE SEASON
IN WHICH THOSE CROPS ARE RAISED OR THEY WILL LOSE THEM.  THE
PETITIONERS KEPT LARGE ENOUGH TOBACCO STOCKS ON HAND TO LAST ABOUT
THREE YEARS.  THE VALUE OF THESE STOCKS WAS OVER $100,000,000 FOR EACH
COMPANY AND THESE STOCKS ASSURED THEIR INDEPENDENCE OF THE MARKET IN
ANY ONE YEAR.  AUCTION MARKETS FOR THE SALE OF LEAF TOBACCO HAVE BEEN
IN OPERATION FOR MANY YEARS AND WERE WELL ESTABLISHED LONG BEFORE THE
DISSOLUTION OF THE TOBACCO TRUST IN 1911.  FN9  SUCH MARKETS ARE
LOCATED IN 75 TOWNS IN THE FLUE-CURED REGION AND 42 TOWNS IN THE BURLEY
AREA.  THERE ARE FOUR MARYLAND MARKETS.  SINCE THE CROP IN THE GEORGIA
BELT MATURES FIRST, THE MARKETS IN THAT BELT OPEN FIRST, USUALLY ABOUT
AUGUST 1.  THE AUCTIONEERS THEN FOLLOW THE MARKETING SEASONS TO THE
NORTH, REACHING THE "OLD BELT" IN NORTH CAROLINA AND VIRGINIA IN THE
LATTER PART OF SEPTEMBER.  THE DATES FOR OPENING THE MARKETS IN THE
FLUE-CURED BELTS ARE SET BY THE TOBACCO ASSOCIATION OF THE UNITED
STATES OF WHICH BUYERS, INCLUDING PETITIONERS, WAREHOUSEMEN AND OTHERS
CONNECTED WITH THE INDUSTRY, BUT NOT INCLUDING FARMERS, ARE MEMBERS. 
BURLEY SALES BEGIN IN LEXINGTON, KENTUCKY, WHICH IS THE PRINCIPAL
MARKET, ON THE FIRST MONDAY IN DECEMBER.  THE OTHER BURLEY MARKETS OPEN
THE NEXT DAY.  SALES CONTINUE, EXCEPTING AT CHRISTMAS TIME, FOR THE
NEXT FEW MONTHS. 

THE GOVERNMENT INTRODUCED EVIDENCE SHOWING THAT, ALTHOUGH THERE WAS
NO WRITTEN OR EXPRESS AGREEMENT DISCOVERED AMONG AMERICAN, LIGGETT AND
REYNOLDS, THEIR PRACTICES INCLUDED A CLEAR COURSE OF DEALING.  THIS
EVIDENTLY CONVINCED THE JURY OF THE EXISTENCE OF A COMBINATION OR
CONSPIRACY TO FIX AND CONTROL PRICES AND PRACTICES AS TO DOMESTIC LEAF
TOBACCO, BOTH IN RESTRAINT OF TRADE AS SUCH, AND TO ESTABLISH A
SUBSTANTIALLY IMPREGNABLE DEFENSE AGAINST ANY ATTEMPTED INTRUSION BY
POTENTIAL COMPETITORS INTO THESE MARKETS.    IT APPEARED THAT
PETITIONERS REFUSED TO PURCHASE TOBACCO ON THESE MARKETS UNLESS THE
OTHER PETITIONERS WERE ALSO REPRESENTED THEREON.  THERE WERE ATTEMPTS
MADE BY OTHERS TO OPEN NEW TOBACCO MARKETS BUT NONE OF THE PETITIONERS
WOULD PARTICIPATE IN THEM UNLESS THE OTHER PETITIONERS WERE PRESENT. 
CONSEQUENTLY, SUCH MARKETS WERE FAILURES DUE TO THE ABSENCE OF BUYERS. 
IT APPEARED THAT THE TOBACCO FARMERS DID NOT WANT TO SELL THEIR TOBACCO
ON A MARKET IN WHICH THE ONLY PURCHASERS WERE SPECULATORS OR DEALERS. 
THE PRICES PAID UNDER SUCH CIRCUMSTANCES WERE LIKELY TO BE LOW IN ORDER
THAT THE PURCHASERS EVENTUALLY MIGHT RESELL THE TOBACCO TO THE
MANUFACTURING COMPANIES.  THE FOREIGN PURCHASERS LIKEWISE WOULD NOT
PARTICIPATE WITHOUT THE PRESENCE OF THE PETITIONERS.  IN THIS WAY THE
NEW TOBACCO MARKETS AND THEIR LOCATIONS WERE DETERMINED BY THE
UNANIMOUS CONSENT OF THE PETITIONERS AND, IN ARRIVING AT THEIR
DETERMINATION, THE PETITIONERS CONSULTED WITH EACH OTHER AS TO WHETHER
OR NOT A COMMUNITY DESERVED A MARKET. 

THE GOVERNMENT PRESENTED EVIDENCE TO SUPPORT ITS CLAIM THAT, BEFORE
THE MARKETS OPENED, THE PETITIONERS PLACED LIMITATIONS AND RESTRICTIONS
ON THE PRICES WHICH THEIR BUYERS WERE PERMITTED TO PAY FOR TOBACCO. 
NONE OF THE BUYERS EXCEEDED THESE PRICE CEILINGS.  GRADES OF TOBACCO
WERE FORMULATED IN SUCH A WAY AS TO RESULT IN THE ABSENCE OF
COMPETITION BETWEEN THE PETITIONERS.  THERE WAS MANIPULATION OF THE
PRICE OF LOWER GRADE TOBACCOS IN ORDER TO RESTRICT COMPETITION FROM
MANUFACTURERS OF THE LOWER PRICED CIGARETTES.  METHODS USED INCLUDED
THE PRACTICE OF THE PETITIONERS OF CALLING THEIR RESPECTIVE BUYERS IN,
PRIOR TO THE OPENING OF THE ANNUAL MARKETS, AND GIVING THEM
INSTRUCTIONS AS TO THE PRICES TO BE PAID FOR LEAF TOBACCO IN EACH OF
THE MARKETS.  THESE INSTRUCTIONS WERE IN TERMS OF TOP PRICES OR PRICE
RANGES.  THE PRICE CEILINGS THUS ESTABLISHED FOR THE BUYERS WERE THE
SAME FOR EACH OF THEM.  IN CASE OF TIE BIDS THE AUCTIONEER AWARDED THE
SALE CUSTOMARILY TO THE BUYER WHO BID FIRST.  UNDER THIS CUSTOM THE
BUYERS REPRESENTING THE PETITIONERS OFTEN MADE BIDS ON VARIOUS BASKETS
OF TOBACCO BEFORE AN OPENING PRICE COULD BE ANNOUNCED SO THAT THEY
MIGHT HAVE THEIR CLAIM TO THE TOBACCO RECOGNIZED AT THE UNDERSTOOD
CEILING PRICE IN THE CASE OF TIE BIDS.  OFTEN A BUYER WOULD BID AHEAD
BY INDICATING THAT HE WANTED A CERTAIN BASKET FURTHER ALONG IN THE LINE
OF BASKETS AND, IN SUCH CASES, THE TOBACCO IN QUESTION WAS AWARDED TO
SUCH BUYER WITHOUT THE MENTION OF ANY PRICE, IT BEING UNDERSTOOD THAT
IT WAS SOLD AT THE TOP PRICE THERETOFORE PREVIOUSLY DETERMINED UPON. 

WHERE ONE OR TWO OF THE PETITIONERS SECURED THEIR PERCENTAGE OF THE
CROP ON A CERTAIN MARKET OR WERE NOT INTERESTED IN THE PURCHASE OF
CERTAIN OFFERINGS OF TOBACCO, THEIR BUYERS, NEVERTHELESS, WOULD ENTER
THE BIDDING IN ORDER TO FORCE THE OTHER PETITIONERS TO BID UP TO THE
MAXIMUM PRICE.  THE PETITIONERS WERE NOT SO MUCH CONCERNED WITH THE
PRICES THEY PAID FOR THE LEAF TOBACCO AS THAT EACH SHOULD PAY THE SAME
PRICE FOR THE SAME GRADE AND THAT NONE WOULD SECURE ANY ADVANTAGE IN
PURCHASING TOBACCO.  THEY WERE ALL TO BE ON THE SAME BASIS AS FAR AS
THE EXPENSES OF THEIR PURCHASES WENT.  THE PRICES WHICH WERE SET AS TOP
PRICES BY PETITIONERS, OR BY THE FIRST OF THEM TO PURCHASE ON THE
MARKET, BECAME, WITH FEW EXCEPTIONS, THE TOP PRICES PREVAILING ON THOSE
MARKETS.  COMPETITION ALSO WAS ELIMINATED BETWEEN PETITIONERS BY THE
PURCHASE OF GRADES OF TOBACCO IN WHICH BUT ONE OF THEM WAS INTERESTED. 
TO ACCOMPLISH THIS, EACH COMPANY FORMULATED THE GRADES WHICH IT ALONE
WISHED TO PURCHASE.  THE OTHER COMPANIES RECOGNIZED THE GRADES SO
FORMULATED AS DISTINCTIVE GRADES AND DID NOT COMPETE FOR THEM.  WHILE
THE DIFFERENCES BETWEEN THE GRADES SO FORMULATED WERE DISTINGUISHABLE
BY THE HIGHLY TRAINED SPECIAL BUYERS, THEY WERE IN REALITY SO MINUTE AS
TO BE INCONSEQUENTIAL.  THIS ELEMENT, HOWEVER, DID NOT MEAN THAT A
COMPANY COULD BID ANY PRICE IT WISHED FOR ITS ESPECIALLY FORMULATED
GRADES OF TOBACCO.  THE OTHER COMPANIES PREVENTED THAT BY BIDDING UP
THE TOBACCO, AT LEAST TO A POINT WHERE THEY DID NOT RISK BEING AWARDED
THE SALE TO THEMSELVES.  EACH COMPANY DETERMINED IN ADVANCE WHAT
PORTION OF THE ENTIRE CROP IT WOULD PURCHASE BEFORE THE MARKET FOR THAT
SEASON OPENED.  THE PETITIONERS THEN SEPARATELY INFORMED THEIR BUYERS
OF THE PERCENTAGE OF THE CROP WHICH THEY WISHED TO PURCHASE AND GAVE
INSTRUCTIONS THAT ONLY SUCH A PERCENTAGE SHOULD BE PURCHASED ON EACH
MARKET.  THE PURCHASES WERE SPREAD EVENLY OVER THE DIFFERENT MARKETS
THROUGHOUT THE SEASON.  NO MATTER WHAT THE SIZE OF THE CROP MIGHT BE,
THE PETITIONERS WERE ABLE TO PURCHASE THEIR PREDETERMINED PERCENTAGES
THEREOF WITHIN THE PRICE LIMITS DETERMINED UPON BY THEM, THUS
INDICATING A STABILIZED MARKET.  THE RESPECTIVE PETITIONERS EMPLOYED
SUPERVISORS WHOSE FUNCTIONS WERE TO SEE THAT THE PRICES WERE THE SAME
ON ONE MARKET AS ON ANOTHER.  WHERE, BECAUSE OF DIFFERENCE IN
APPRAISALS OF GRADES OR OTHER SIMILAR FACTORS, THE BIDDING WAS OUT OF
LINE WITH THE PREDETERMINED PRICE LIMITS OR THERE WAS A TENDENCY FOR
PRICES TO VARY FROM THOSE ON OTHER MARKETS, THE SUPERVISORS SOUGHT TO
MAINTAIN THE SAME PRICES AND GRADES ON DIFFERENT MARKETS.  THIS WAS
SOUGHT TO BE ACHIEVED BY INSTRUCTIONS TO BUYERS TO CHANGE THE PRICES
BID OR THE PERCENTAGES PURCHASED, AND SUCH ACTIONS PROVED TO BE
SUCCESSFUL IN MAINTAINING AND EQUALIZING THE PRICES ON THE DIFFERENT
MARKETS. 

AT A TIME WHEN THE MANUFACTURERS OF LOWER PRICED CIGARETTES WERE
BEGINNING TO MANUFACTURE THEM IN QUANTITY, THE PETITIONERS COMMENCED TO
MAKE LARGE PURCHASES OF THE CHEAPER TOBACCO LEAVES USED FOR THE
MANUFACTURE OF SUCH LOWER PRICED CIGARETTES.  NO EXPLANATION WAS
OFFERED AS TO HOW OR WHERE THIS TOBACCO WAS USED BY PETITIONERS.  THE
COMPOSITIONS OF THEIR RESPECTIVE BRANDS OF CIGARETTES CALLING FOR THE
USE OF MORE EXPENSIVE TOBACCOS REMAINED UNCHANGED DURING THIS PERIOD OF
CONTROVERSY AND UP TO THE END OF THE TRIAL.  THE GOVERNMENT CLAIMED
THAT SUCH PURCHASES OF CHEAPER TOBACCO EVIDENCED A COMBINATION AND A
PURPOSE AMONG THE PETITIONERS TO DEPRIVE THE MANUFACTURERS OF CHEAPER
CIGARETTES OF THE TOBACCO NECESSARY FOR THEIR MANUFACTURE, AS WELL AS
TO RAISE THE PRICE OF SUCH TOBACCO TO SUCH A POINT THAT CIGARETTES MADE
THEREFROM COULD NOT BE SOLD AT A SUFFICIENTLY LOW PRICE TO COMPETE WITH
THE PETITIONERS' MORE HIGHLY ADVERTISED BRANDS. 

II. 

THE VERDICTS SHOW ALSO THAT THE JURY FOUND THAT THE PETITIONERS
CONSPIRED TO FIX PRICES AND TO EXCLUDE UNDESIRED COMPETITION IN THE
DISTRIBUTION AND SALE OF THEIR PRINCIPAL PRODUCTS.  THE PETITIONERS
SOLD AND DISTRIBUTED THEIR PRODUCTS TO JOBBERS AND TO SELECTED DEALERS
WHO BOUGHT AT LIST PRICES, LESS DISCOUNTS.  ALMOST ALL OF THE MILLION
OR MORE DEALERS WHO HANDLED THE RESPECTIVE PETITIONERS' PRODUCTS
THROUGHOUT THE COUNTRY CONSISTED OF SUCH ESTABLISHMENTS AS SMALL
STOREKEEPERS, GASOLINE STATION OPERATORS AND LUNCH ROOM PROPRIETORS WHO
PURCHASED THE CIGARETTES FROM JOBBERS.  THE JOBBERS IN TURN DERIVED
THEIR PROFITS FROM THE DIFFERENCE BETWEEN THE WHOLESALE PRICE PAID BY
THEM AND THE PRICE CHARGED BY THEM TO LOCAL DEALERS.  A GREAT ADVANTAGE
THEREFORE ACCRUED TO ANY DEALER BUYING AT THE DISCOUNTED OR WHOLESALE
LIST PRICES.  SELLING TO DEALERS AT JOBBERS' PRICES WAS CALLED "DIRECT
SELLING" AND THE DEALERS AS WELL AS THE JOBBERS GETTING THOSE PRICES
WERE REFERRED TO AS BEING ON THE "DIRECT LIST."  THE LIST PRICES
CHARGED AND THE DISCOUNTS ALLOWED BY PETITIONERS HAVE BEEN PRACTICALLY
IDENTICAL SINCE 1923 AND ABSOLUTELY IDENTICAL SINCE 1928.  SINCE THE
LATTER DATE, ONLY SEVEN CHANGES HAVE BEEN MADE BY THE THREE COMPANIES
AND THOSE HAVE BEEN IDENTICAL IN AMOUNT.  THE INCREASES WERE FIRST
ANNOUNCED BY REYNOLDS.  AMERICAN AND LIGGETT THEREUPON INCREASED THEIR
LIST PRICES IN IDENTICAL AMOUNTS. 

THE FOLLOWING RECORD OF PRICE CHANGES IS CIRCUMSTANTIAL EVIDENCE OF
THE EXISTENCE OF A CONSPIRACY AND OF A POWER AND INTENT TO EXCLUDE
COMPETITION COMING FROM CHEAPER GRADE CIGARETTES.  DURING THE TWO YEARS
PRECEDING JUNE, 1931, THE PETITIONERS PRODUCED 90% OF THE TOTAL
CIGARETTE PRODUCTION IN THE UNITED STATES.  IN THAT MONTH TOBACCO
FARMERS WERE RECEIVING THE LOWEST PRICES FOR THEIR CROPS SINCE 1905. 
THE COSTS TO THE PETITIONERS FOR TOBACCO LEAF, THEREFORE, WERE LOWER
THAN USUAL DURING THE PAST 25 YEARS, AND THEIR MANUFACTURING COSTS HAD
BEEN DECLINING.  IT WAS ONE OF THE WORST YEARS OF FINANCIAL AND
ECONOMIC DEPRESSION IN THE HISTORY OF THE COUNTRY.  ON JUNE 23, 1931,
REYNOLDS, WITHOUT PREVIOUS NOTIFICATION OR WARNING TO THE TRADE OR
PUBLIC, RAISED THE LIST PRICE OF CAMEL CIGARETTES, CONSTITUTING ITS
LEADING CIGARETTE BRAND, FROM $6.40 TO $6.85 A THOUSAND.  THE SAME DAY,
AMERICAN INCREASED THE LIST PRICE FOR LUCKY STRIKE CIGARETTES, ITS
LEADING BRAND, AND LIGGETT THE PRICE FOR CHESTERFIELD CIGARETTES, ITS
LEADING BRAND, TO THE IDENTICAL PRICE OF $6.85 A THOUSAND.  NO ECONOMIC
JUSTIFICATION FOR THIS RAISE WAS DEMONSTRATED.  THE PRESIDENT OF
REYNOLDS STATED THAT IT WAS "TO EXPRESS OUR OWN COURAGE FOR THE FUTURE
AND OUR OWN CONFIDENCE IN OUR INDUSTRY."  THE PRESIDENT OF AMERICAN
GAVE AS HIS REASON FOR THE INCREASE, "THE OPPORTUNITY OF MAKING SOME
MONEY."  SEE 147 F.2D 93, 103.  HE FURTHER CLAIMED THAT BECAUSE
REYNOLDS HAD RAISED ITS LIST PRICE, REYNOLDS WOULD THEREFORE HAVE
ADDITIONAL FUNDS FOR ADVERTISING AND AMERICAN HAD RAISED ITS PRICE IN
ORDER TO HAVE A SIMILAR AMOUNT FOR ADVERTISING.  THE OFFICIALS OF
LIGGETT CLAIMED THAT THEY THOUGHT THE INCREASE WAS A MISTAKE AS THERE
DID NOT SEEM TO BE ANY REASON FOR MAKING A PRICE ADVANCE BUT THEY
CONTENDED THAT UNLESS THEY ALSO RAISED THEIR LIST PRICE FOR
CHESTERFIELDS, THE OTHER COMPANIES WOULD HAVE GREATER RESOURCES TO
SPEND IN ADVERTISING AND THUS WOULD PUT CHESTERFILED CIGARETTES AT A
COMPETITIVE DISADVANTAGE.  THIS GENERAL PRICE INCREASE SOON RESULTED IN
HIGHER RETAIL PRICES AND IN A LOSS IN VOLUME OF SALES.  YET IN 1932, IN
THE MIDST OF THE NATIONAL DEPRESSION WITH THE SALES OF THE PETITIONERS'
CIGARETTES FALLING OFF GREATLY IN NUMBER, THE PETITIONERS STILL WERE
MAKING TREMENDOUS PROFITS AS A RESULT OF THE PRICE INCREASE.  THEIR NET
PROFITS IN THAT YEAR AMOUNTED TO MORE THAN $100,000,000.  THIS WAS ONE
OF THE THREE BIGGEST YEARS IN THEIR HISTORY. 

BEFORE 1931, CERTAIN SMALLER COMPANIES HAD MANUFACTURED CIGARETTES
RETAILING AT 10 CENTS A PACKAGE, WHICH WAS SEVERAL CENTS LOWER THAN THE
RETAIL PRICE FOR THE LEADING BRANDS OF THE PETITIONERS.  UP TO THAT
TIME, THE SALES OF THE 10 CENT CIGARETTES WERE NEGLIGIBLE.  HOWEVER,
AFTER THE ABOVE DESCRIBED INCREASE IN LIST PRICES OF THE PETITIONERS IN
1931, THE 10 CENT BRANDS MADE SERIOUS INROADS UPON THE SALES OF THE
PETITIONERS.  THESE CHEAPER BRANDS OF CIGARETTES WERE SOLD AT A LIST
PRICE OF $4.75 A THOUSAND AND FROM 1931 TO 1932 THE SALES OF THESE
CIGARETTES MULTIPLIED 30 TIMES, RISING FROM 0.28% OF THE TOTAL
CIGARETTE SALES OF THE COUNTRY IN JUNE, 1931, TO 22.78% IN NOVEMBER,
1932.  IN RESPONSE TO THIS THREAT OF COMPETITION FROM THE MANUFACTURERS
OF THE 10 CENT BRANDS, THE PETITIONERS, IN JANUARY, 1933, CUT THE LIST
PRICE OF THEIR THREE LEADING BRANDS FROM $6.85 TO $6 A THOUSAND.  IN
FEBRUARY, THEY CUT AGAIN TO $5.50 A THOUSAND.  THE EVIDENCE TENDS TO
SHOW THAT THIS CUT WAS DIRECTED AT THE COMPETITION OF THE 10 CENT
CIGARETTES.  REPORTS THAT PREVIOUSLY HAD BEEN SENT IN BY VARIOUS
OFFICIALS AND REPRESENTATIVES TO THEIR COMPANIES TOLD OF THE
PETITIONERS' BRANDS LOSING IN COMPETITION WITH THE 10 CENT BRANDS.  THE
PETITIONERS WERE INTERESTED IN A SUFFICIENTLY LOW RETAIL PRICE FOR
THEIR PRODUCTS SO THAT THEY WOULD DEFEAT THE THREAT FROM THE LOWER
PRICED CIGARETTES AND FOUND THAT, IN ORDER TO SUCCEED IN THEIR
OBJECTIVE, IT WAS NECESSARY THAT THERE BE NOT MORE THAN A 3 CENT
DIFFERENTIAL ON EACH PACKAGE AT RETAIL BETWEEN THE CHEAPER CIGARETTES
AND THEIR OWN BRANDS.  THE PETITIONERS' CUTS IN THEIR LIST PRICES AND
THE SUBSEQUENT REDUCTIONS IN THE RETAIL PRICES OF THEIR PRODUCTS
RESULTED IN A VICTORY OVER THE 10 CENT BRANDS.  THE LETTERS OF
PETITIONERS' REPRESENTATIVES TO THEIR COMPANIES REPORTED UPON THE
PROGRESS OF THIS BATTLE, GIVING AN ACCOUNT OF THE DECLINE IN SALES OF
THE 10 CENT BRANDS BECAUSE OF THE PRICE REDUCTIONS IN THE "15-CENT
BRANDS," AND PROPHESYING THAT CERTAIN OF THE 10 CENT BRANDS WOULD "PASS
OUT OF THE PICTURE."  FOLLOWING THE FIRST PRICE CUT BY PETITIONERS, THE
SALES OF THE 10 CENT BRANDS FELL OFF CONSIDERABLY.  AFTER THE SECOND
CUT THEY FELL OFF TO A MUCH GREATER EXTENT.  WHEN THE SALE OF THE 10
CENT BRANDS HAD DROPPED FROM 22.78% OF THE TOTAL CIGARETTE SALES IN
NOVEMBER, 1932, TO 6.43% IN MAY, 1933, THE PETITIONERS, IN JANUARY,
1934, RAISED THE LIST PRICE OF THEIR LEADING BRANDS FROM $5.50 BACK UP
TO $6.10 A THOUSAND.  DURING THE PERIOD THAT THE LIST PRICE OF $5.50 A
THOUSAND WAS IN EFFECT, CAMELS AND LUCKY STRIKES WERE BEING SOLD AT A
LOSS BY REYNOLDS AND AMERICAN.  LIGGETT AT THE SAME TIME WAS FORCED TO
CURTAIL ALL OF ITS NORMAL BUSINESS ACTIVITIES AND CUT ITS ADVERTISING
TO THE BONE IN ORDER TO SELL AT THIS PRICE.  THE PETITIONERS, IN 1937,
AGAIN INCREASED THE LIST PRICES OF THEIR ABOVE NAMED BRANDS TO $6.25 A
THOUSAND AND IN JULY, 1940, TO $6.53 A THOUSAND. 

CERTAIN METHODS USED BY THE PETITIONERS TO SECURE A REDUCTION IN THE
RETAIL PRICES OF THEIR CIGARETTES WERE IN EVIDENCE.  REYNOLDS AND
LIGGETT REQUIRED THEIR RETAILERS TO PRICE THE 10 CENT BRANDS AT A
DIFFERENTIAL OF NOT MORE THAN 3 CENTS BELOW CAMEL AND CHESTERFIELD
CIGARETTES.  THEY INSISTED UPON THEIR DEALERS CORRECTING A GREATER
DIFFERENTIAL BY INCREASING THE RETAIL PRICE OF THE 10 CENT BRANDS TO 11
CENTS WITH PETITIONERS' BRANDS AT 14 CENTS A PACKAGE, OR BY REQUIRING
THAT PETITIONERS' BRANDS BE PRICED AT 13 CENTS WITH THE LOWER PRICED
CIGARETTES AT 10 CENTS A PACKAGE.  SALESMEN FOR LIGGETT WERE INSTRUCTED
TO NARROW THE DIFFERENTIAL TO 3 CENTS, IT BEING DEEMED OF NO
CONSEQUENCE WHETHER THE DEALER RAISED THE PRICE OF THE 10 CENT BRANDS
OR REDUCED THE PRICE OF CHESTERFIELDS.  REYNOLDS REFERRED TO A
DIFFERENTIAL OF MORE THAN 3 CENTS AS "DISCRIMINATORY" ON THE GROUND
THAT THE DEALER THEN WOULD MAKE A HIGHER GROSS PROFIT ON THE HIGHER
PRICED CIGARETTES THAN ON THE 10 CENT BRANDS.  AFTER THE LIST PRICE
REDUCTIONS WERE MADE AND AT THE HEIGHT OF THE PRICE WAR, THE
PETITIONERS COMMENCED THE DISTRIBUTION OF POSTERS ADVERTISING THEIR
BRANDS AT 10 CENTS A PACKAGE AND MADE ATTEMPTS TO HAVE DEALERS MEET
THESE PRICES.  AMONG THE EFFORTS USED TO ACHIEVE THEIR OBJECTIVES,
PETITIONERS GAVE DEALERS DIRECT LIST PRIVILEGES OF PURCHASE, TOGETHER
WITH DISCOUNTS, POSTER ADVERTISING DISPLAYS, CASH SUBSIDIES AND FREE
GOODS.  IN ADDITION TO THE USE OF THESE INDUCEMENTS, PETITIONERS ALSO
USED THREATS AND PENALTIES TO ENFORCE COMPLIANCE WITH THEIR RETAIL
PRICE PROGRAM, REMOVED DEALERS FROM THE DIRECT LISTS, CANCELLED
ARRANGEMENTS FOR WINDOW ADVERTISING, CHANGED CREDIT TERMS WITH A
RESULTING HANDICAP TO RECALCITRANT DEALERS, DISCONTINUED CASH
ALLOWANCES FOR ADVERTISING, REFUSED TO MAKE DEALS GIVING FREE GOODS,
AND MADE USE OF PRICE CUTTERS TO WHOM THEY GRANTED ADVANTAGEOUS
PRIVILEGES TO DRIVE DOWN RETAIL PRICES WHERE A PARITY, OR PRICE
EQUALIZATION, WAS NOT MAINTAINED BY DEALERS BETWEEN BRANDS OF
PETITIONERS OR WHERE THE DEALERS REFUSED TO MAINTAIN THE 3 CENT
DIFFERENTIAL BETWEEN THE 10 CENT BRANDS AND THE LEADING BRANDS OF
PETITIONERS' CIGARETTES.  THERE WAS EVIDENCE THAT WHEN DEALERS RECEIVED
AN ANNOUNCEMENT OF THE PRICE INCREASE FROM ONE OF THE PETITIONERS AND
ATTEMPTED TO PURCHASE SOME OF THE LEADING BRANDS OF CIGARETTES FROM THE
OTHER PETITIONERS AT THEIR UNCHANGED PRICES BEFORE ANNOUNCEMENT OF A
SIMILAR CHANGE, THE LATTER REFUSED TO FILL SUCH ORDERS UNTIL THEIR
PRICES WERE ALSO RAISED, THUS BRINGING ABOUT THE SAME RESULT AS IF THE
CHANGES HAD BEEN PRECISELY SIMULTANEOUS. 

                                 III. 

IT WAS ON THE BASIS OF SUCH EVIDENCE THAT THE CIRCUIT COURT OF
APPEALS FOUND THAT THE VERDICTS OF THE JURY WERE SUSTAINED BY
SUFFICIENT EVIDENCE ON EACH COUNT.  THE QUESTION SQUARELY PRESENTED
HERE BY THE ORDER OF THIS COURT IN ALLOWING THE WRITS OF CERTIORARI IS
WHETHER ACTUAL EXCLUSION OF COMPETITORS IS NECESSARY TO THE CRIME OF
MONOPOLIZATION IN THESE CASES UNDER SEC. 2 OF THE SHERMAN ACT.  WE
AGREE WITH THE LOWER COURTS THAT SUCH ACTUAL EXCLUSION OF COMPETITORS
IS NOT NECESSARY TO THAT CRIME IN THESE CASES AND THAT THE INSTRUCTIONS
GIVEN TO THE JURY, AND HEREINBEFORE QUOTED, CORRECTLY DEFINED THE
CRIME.  A CORRECT INTERPRETATION OF THE STATUTE AND OF THE AUTHORITIES
MAKES IT THE CRIME OF MONOPOLIZING, UNDER SEC. 2 OF THE SHERMAN ACT,
FOR PARTIES, AS IN THESE CASES, TO COMBINE OR CONSPIRE TO ACQUIRE OR
MAINTAIN THE POWER TO EXCLUDE COMPETITORS FROM ANY PART OF THE TRADE OR
COMMERCE AMONG THE SEVERAL STATES OR WITH FOREIGN NATIONS, PROVIDED
THEY ALSO HAVE SUCH A POWER THAT THEY ARE ABLE, AS A GROUP, TO EXCLUDE
ACTUAL OR POTENTIAL COMPETITION FROM THE FIELD AND PROVIDED THAT THEY
HAVE THE INTENT AND PURPOSE TO EXERCISE THAT POWER.  SEE UNITED STATES
V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 226, N. 59 AND AUTHORITIES
CITED. 

IT IS NOT THE FORM OF THE COMBINATION OR THE PARTICULAR MEANS USED
BUT THE RESULT TO BE ACHIEVED THAT THE STATUTE CONDEMNS.  IT IS NOT OF
IMPORTANCE WHETHER THE MEANS USED TO ACCOMPLISH THE UNLAWFUL OBJECTIVE
ARE IN THEMSELVES LAWFUL OR UNLAWFUL.  ACTS DONE TO GIVE EFFECT TO THE
CONSPIRACY MAY BE IN THEMSELVES WHOLLY INNOCENT ACTS.  YET, IF THEY ARE
PART OF THE SUM OF THE ACTS WHICH ARE RELIED UPON TO EFFECTUATE THE
CONSPIRACY WHICH THE STATUTE FORBIDS, THEY COME WITHIN ITS
PROHIBITION.  NO FORMAL AGREEMENT IS NECESSARY TO CONSTITUTE AN
UNLAWFUL CONSPIRACY.  OFTEN CRIMES ARE A MATTER OF INFERENCE DEDUCED
FROM THE ACTS OF THE PERSON ACCUSED AND DONE IN PURSUANCE OF A CRIMINAL
PURPOSE.  WHERE THE CONSPIRACY IS PROVED, AS HERE, FROM THE EVIDENCE OF
THE ACTION TAKEN IN CONCERT BY THE PARTIES TO IT, IT IS ALL THE MORE
CONVINCING PROOF OF AN INTENT TO EXERCISE THE POWER OF EXCLUSION
ACQUIRED THROUGH THAT CONSPIRACY.  THE ESSENTIAL COMBINATION OR
CONSPIRACY IN VIOLATION OF THE SHERMAN ACT MAY BE FOUND IN A COURSE OF
DEALING OR OTHER CIRCUMSTANCES AS WELL AS IN AN EXCHANGE OF WORDS. 
UNITED STATES V. SCHRADER'S SON, 252 U.S. 85.  WHERE THE CIRCUMSTANCES
ARE SUCH AS TO WARRANT A JURY IN FINDING THAT THE CONSPIRATORS HAD A
UNITY OF PURPOSE OR A COMMON DESIGN AND UNDERSTANDING, OR A MEETING OF
MINDS IN AN UNLAWFUL ARRANGEMENT, THE CONCLUSION THAT A CONSPIRACY IS
ESTABLISHED IS JUSTIFIED.  NEITHER PROOF OF EXERTION OF THE POWER TO
EXCLUDE NOR PROOF OF ACTUAL EXCLUSION OF EXISTING OR POTENTIAL
COMPETITORS IS ESSENTIAL TO SUSTAIN A CHARGE OF MONOPOLIZATION UNDER
THE SHERMAN ACT. 

IN APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 496, THIS COURT SAID IN
A FOOTNOTE, "ON FINDING ...  A POWER TO CONTROL THE OUTPUT, SUPPLY OF
THE MARKET AND THE TRANSPORTATION FACILITIES OF POTENTIAL COMPETITORS,
IN THE ANTHRACITE COAL MARKET, THE ARRANGEMENT WAS HELD VOID IN UNITED
STATES V. READING CO., 253 U.S. 26, 47-48."  IT HAS BEEN HELD THAT
REGARDLESS OF THE USE MADE OF IT, A POWER RESULTING FROM THE
DELIBERATELY CALCULATED PURCHASE OF A CONTROL, WHICH ENABLES A HOLDING
COMPANY TO DOMINATE TWO GREAT COMPETING INTERSTATE RAILROAD CARRIERS
AND TWO GREAT COMPETING COAL COMPANIES ENGAGED EXTENSIVELY IN MINING
AND SELLING ANTHRACITE COAL WHICH MUST BE DISTRIBUTED OVER THESE
RAILROADS, IS A MENACE AND AN UNDUE RESTRAINT UPON INTERSTATE COMMERCE
WITHIN THE MEANING OF THE ANTI-TRUST ACT AND IS IN FLAGRANT VIOLATION
OF THE PROHIBITION AGAINST MONOPOLY IN THE SECOND SECTION OF THAT ACT. 
UNITED STATES V. READING CO., 253 U.S. 26.  IN NORTHERN SECURITIES CO.
V. UNITED STATES, 193 U.S. 197, IN REFERRING TO THE HOLDING COMPANY
DEVICE THERE IN ISSUE, THIS COURT SAID THAT THE MERE EXISTENCE OF SUCH
A COMBINATION AND THE POWER ACQUIRED BY THE HOLDING COMPANY AS ITS
TRUSTEE CONSTITUTED A MENACE TO AND A DIRECT RESTRAINT UPON THAT
FREEDOM OF COMMERCE WHICH CONGRESS INTENDED TO RECOGNIZE AND PROTECT
AND WHICH THE PUBLIC IS ENTITLED TO HAVE PROTECTED.  A COMBINATION MAY
BE ONE IN RESTRAINT OF INTERSTATE TRADE OR COMMERCE OR TO MONOPOLIZE A
PART OF SUCH TRADE OR COMMERCE IN VIOLATION OF THE SHERMAN ACT,
ALTHOUGH SUCH RESTRAINT OR MONOPOLY MAY NOT HAVE BEEN ACTUALLY
ATTEMPTED TO ANY HARMFUL EXTENT.  SEE UNITED STATES V. INTERNATIONAL
HARVESTER CO., 214 F. 987, ID., 274 U.S. 693.  THE AUTHORITIES SUPPORT
THE VIEW THAT THE MATERIAL CONSIDERATION IN DETERMINING WHETHER A
MONOPOLY EXISTS IS NOT THAT PRICES ARE RAISED AND THAT COMPETITION
ACTUALLY IS EXCLUDED BUT THAT POWER EXISTS TO RAISE PRICES OR TO
EXCLUDE COMPETITION WHEN IT IS DESIRED TO DO SO.  UNITED STATES V.
AMERICAN TOBACCO CO., 164 F. 700, 721, REMANDED FOR FURTHER
PROCEEDINGS, 221 U.S. 106, 188.  "IT IS UNDOUBTEDLY TRUE  ... THAT
TRADE AND COMMERCE ARE 'MONOPOLIZED' WITHIN THE MEANING OF THE FEDERAL
STATUTE, WHEN, AS A RESULT OF EFFORTS TO THAT END, SUCH POWER IS
OBTAINED THAT A FEW PERSONS ACTING TOGETHER CAN CONTROL THE PRICES OF A
COMMODITY MOVING IN INTERSTATE COMMERCE.  IT IS NOT NECESSARY THAT THE
POWER THUS OBTAINED SHOULD BE EXERCISED.  ITS EXISTENCE IS
SUFFICIENT."  UNITED STATES V. PATTEN, 187 F. 664, 672, REVERSED ON
OTHER GROUNDS, 226 U.S. 525.  CF. NORTH AMERICAN CO. V. S.E.C., 327
U.S. 686. 

THE PRECISE QUESTION BEFORE US HAS NOT BEEN DECIDED PREVIOUSLY BY
THIS COURT.  HOWEVER, ON MARCH 12, 1945, TWO WEEKS BEFORE THE GRANT OF
THE WRITS OF CERTIORARI IN THE PRESENT CASES, A DECISION RENDERED IN A
SUIT IN EQUITY BROUGHT UNDER SECS. 1 AND 2 OF THE SHERMAN ANTI-TRUST
ACT AGAINST THE ALUMINUM COMPANY OF AMERICA CLOSELY APPROACHED THE
ISSUE WE HAVE HERE.  THAT CASE WAS DECIDED BY THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT UNDER UNIQUE CIRCUMSTANCES WHICH ADD TO
ITS WEIGHT AS A PRECEDENT.  UNITED STATES V. ALUMINUM CO. OF AMERICA,
148 F.2D 416.  THAT COURT SAT IN THAT CASE UNDER A NEW STATUTE
AUTHORIZING IT TO RENDER A DECISION "IN LIEU OF A DECISION BY THE
SUPREME COURT" AND PROVIDING THAT SUCH DECISION "SHALL BE FINAL AND
THERE SHALL BE NO REVIEW OF SUCH DECISION BY APPEAL OR CERTIORARI OR
OTHERWISE."  FN10 

WE FIND THE FOLLOWING STATEMENTS FROM THE OPINION OF THE COURT IN
THAT CASE TO BE ESPECIALLY APPROPRIATE HERE AND WE WELCOME THIS
OPPORTUNITY TO ENDORSE THEM: 

"MANY PEOPLE BELIEVE THAT POSSESSION OF UNCHALLENGED ECONOMIC POWER
DEADENS INITIATIVE, DISCOURAGES THRIFT AND DEPRESSES ENERGY; THAT
IMMUNITY FROM COMPETITION IS A NARCOTIC, AND RIVALRY IS A STIMULANT, TO
INDUSTRIAL PROGRESS; THAT THE SPUR OF CONSTANT STRESS IS NECESSARY TO
COUNTERACT AN INEVITABLE DISPOSITION TO LET WELL ENOUGH ALONE....
THESE CONSIDERATIONS, WHICH WE HAVE SUGGESTED ONLY AS POSSIBLE PURPOSES
OF THE ACT, WE THINK THE DECISIONS PROVE TO HAVE BEEN IN FACT ITS
PURPOSES.  (148 F.2D AT 427.) 

     .         .         .         .         . 

"STARTING, HOWEVER, WITH THE AUTHORITATIVE PREMISE THAT ALL CONTRACTS
FIXING PRICES ARE UNCONDITIONALLY PROHIBITED, THE ONLY POSSIBLE
DIFFERENCE BETWEEN THEM AND A MONOPOLY IS THAT WHILE A MONOPOLY
NECESSARILY INVOLVES AN EQUAL, OR EVEN GREATER, POWER TO FIX PRICES,
ITS MERE EXISTENCE MIGHT BE THOUGHT NOT TO CONSTITUTE AN EXERCISE OF
THAT POWER.  THAT DISTINCTION IS NEVERTHELESS PURELY FORMAL; IT WOULD
BE VALID ONLY SO LONG AS THE MONOPOLY REMAINED WHOLLY INERT; IT WOULD
DISAPPEAR AS SOON AS THE MONOPOLY BEGAN TO OPERATE; FOR, WHEN IT DID -
THAT IS, AS SOON AS IT BEGAN TO SELL AT ALL - IT MUST SELL AT SOME
PRICE AND THE ONLY PRICE AT WHICH IT COULD SELL IS A PRICE WHICH IT
ITSELF FIXED.  THEREAFTER THE POWER AND ITS EXERCISE MUST NEEDS
COALESCE.  INDEED IT WOULD BE ABSURD TO CONDEMN SUCH CONTRACTS
UNCONDITIONALLY, AND NOT TO EXTEND THE CONDEMNATION TO MONOPOLIES; FOR
THE CONTRACTS ARE ONLY STEPS TOWARD THAT ENTIRE CONTROL WHICH MONOPOLY
CONFERS: THEY ARE REALLY PARTIAL MONOPOLIES.  (ID. 427-428.) 

     .         .         .         .         . 

"IT DOES NOT FOLLOW BECAUSE 'ALCOA' HAD SUCH A MONOPOLY, THAT IT
'MONOPOLIZED' THE INGOT MARKET: IT MAY NOT HAVE ACHIEVED MONOPOLY;
MONOPOLY MAY HAVE BEEN THRUST UPON IT.  IF IT HAD BEEN A COMBINATION OF
EXISTING SMELTERS WHICH UNITED THE WHOLE INDUSTRY AND CONTROLLED THE
PRODUCTION OF ALL ALUMINUM INGOT, IT WOULD CERTAINLY HAVE 'MONOPOLIZED'
THE MARKET.  IN SEVERAL DECISIONS THE SUPREME COURT HAS DECREED THE
DISSOLUTION OF SUCH COMBINATIONS, ALTHOUGH THEY HAD ENGAGED IN NO
UNLAWFUL TRADE PRACTICES....  WE MAY START THEREFORE WITH THE PREMISE
THAT TO HAVE COMBINED NINETY PER CENT OF THE PRODUCERS OF INGOT WOULD
HAVE BEEN TO 'MONOPOLIZE' THE INGOT MARKET; AND, SO FAR AS CONCERNS THE
PUBLIC INTEREST, IT CAN MAKE NO DIFFERENCE WHETHER AN EXISTING
COMPETITION IS PUT AN END TO, OR WHETHER PROSPECTIVE COMPETITION IS
PREVENTED.  THE CLAYTON ACT ITSELF SPEAKS IN THAT ALTERNATIVE:  'TO
INJURE, DESTROY, OR PREVENT COMPETITION.'  SEC. 13(A), 15 U.S.C.A. (ID.
429.) 

     .         .         .   .         . 

"IT INSISTS THAT IT NEVER EXCLUDED COMPETITORS; BUT WE CAN THINK OF
NO MORE EFFECTIVE EXCLUSION THAN PROGRESSIVELY TO EMBRACE EACH NEW
OPPORTUNITY AS IT OPENED, AND TO FACE EVERY NEWCOMER WITH NEW CAPACITY
ALREADY GEARED INTO A GREAT ORGANIZATION, HAVING THE ADVANTAGE OF
EXPERIENCE, TRADE CONNECTIONS AND THE ELITE OF PERSONNEL.  ONLY IN CASE
WE INTERPRET 'EXCLUSION' AS LIMITED TO MANOEUVRES NOT HONESTLY
INDUSTRIAL, BUT ACTUATED SOLELY BY A DESIRE TO PREVENT COMPETITION, CAN
SUCH A COURSE, INDEFATIGABLY PURSUED, BE DEEMED NOT 'EXCLUSIONARY.'  SO
TO LIMIT IT WOULD IN OUR JUDGMENT EMASCULATE THE ACT; WOULD PERMIT JUST
SUCH CONSOLIDATIONS AS IT WAS DESIGNED TO PREVENT.  (ID. 431.) 

     .         .         .         .         . 

"IN ORDER TO FALL WITHIN SEC. 2, THE MONOPOLIST MUST HAVE BOTH THE
POWER TO MONOPOLIZE, AND THE INTENT TO MONOPOLIZE.  TO READ THE PASSAGE
AS DEMANDING ANY 'SPECIFIC' INTENT, MAKES NONSENSE OF IT, FOR NO
MONOPOLIST MONOPOLIZES UNCONSCIOUS OF WHAT HE IS DOING."  (ID. 432.) 

IN THE PRESENT CASES, THE PETITIONERS HAVE BEEN FOUND TO HAVE
CONSPIRED TO ESTABLISH A MONOPOLY AND ALSO TO HAVE THE POWER AND INTENT
TO ESTABLISH AND MAINTAIN THE MONOPOLY.  TO HOLD THAT THEY DO NOT COME
WITHIN THE PROHIBITION OF THE SHERMAN ACT WOULD DESTROY THE FORCE OF
THAT ACT.  ACCORDINGLY, THE INSTRUCTIONS OF THE TRIAL COURT UNDER SEC.
2 OF THE ACT ARE APPROVED AND THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS IS AFFIRMED.  FN11 

FN1  HERE REFERRED TO AS AMERICAN, LIGGETT AND REYNOLDS. 

FN2  "SEC.  2.  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, AND,
ON CONVICTION THEREOF, SHALL BE PUNISHED BY FINE NOT EXCEEDING FIVE
THOUSAND DOLLARS, OR BY IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY BOTH
SAID PUNISHMENTS, IN THE DISCRETION OF THE COURT."  26 STAT. 209, 15
U.S.C. SEC. 2. 

FN3  THE SECOND COUNT INCLUDED PARTICULARLY THE FOLLOWING: 

"BEFORE AND DURING THE PERIOD OF THREE YEARS NEXT PRECEDING THE
FILING OF THIS INFORMATION, ...  DEFENDANTS,  ...  WELL KNOWING THE
FOREGOING FACTS, HAVE, ...  UNLAWFULLY MONOPOLIZED THE AFORESAID
INTERSTATE AND FOREIGN TRADE AND COMMERCE IN TOBACCO, IN VIOLATION OF

     .  .         .         .         . 

"IN ADOPTING AND EXERCISING SUCH METHODS, MEANS AND PRACTICES, EACH
DEFENDANT HAS ACTED WITH FULL KNOWLEDGE THAT UNANIMITY OF ACTION WITH
REFERENCE THERETO WAS AND WOULD BE THE POLICY, INTENT AND PRACTICE OF
THE OTHERS, THAT SUCH UNANIMITY OF ACTION WOULD NECESSARILY RESULT IN
DRAWING TO DEFENDANT MAJOR TOBACCO COMPANIES AS A GROUP THE POWER TO
DOMINATE, CONTROL, AND EXCLUDE OTHERS FROM THE AFORESAID INTERSTATE AND
FOREIGN TRADE AND COMMERCE, HAS INTENDED SUCH RESULT, AND SUCH RESULT
HAS IN FACT BEEN ACHIEVED.    "SAID UNLAWFUL MONOPOLIZATION HAS HAD THE
EFFECTS, AMONG OTHERS, OF PERMITTING A FEW COMPANIES TO ATTAIN CONTROL
OF A BOTTLENECK IN A GREAT INDUSTRY, THROUGH WHICH A MAJOR FARM
COMMODITY, ON WHICH SEVERAL MILLION ARE DEPENDENT, MUST PASS, ON ITS
WAY THROUGH THE HANDS OF JOBBERS AND RETAILERS, TO THE MANY MILLIONS OF
PEOPLE WHO USE TOBACCO PRODUCTS; OF ENABLING THESE FEW COMPANIES TO
ABUSE THEIR RESULTING STRATEGIC AND DOMINANT POSITION, BY MAKING THE
INCOME OF GROWERS OF LEAF TOBACCO LOWER THAN IT OTHERWISE WOULD HAVE
BEEN; BY MAKING THE INCOME OF DISTRIBUTORS AND OTHER MANUFACTURERS OF
TOBACCO PRODUCTS LOWER THAN IT OTHERWISE WOULD HAVE BEEN; AND BY
KEEPING FROM ALL OTHER GROUPS IN THE INDUSTRY, AND FROM CONSUMERS, THE
BENEFITS WHICH OTHERWISE WOULD FLOW FROM FREE, VIGOROUS AND NORMAL
COMPETITION." 

FN4  THE VERDICT IN A CRIMINAL CASE IS SUSTAINED ONLY WHEN THERE IS
"RELEVANT EVIDENCE FROM WHICH THE JURY COULD PROPERLY FIND OR INFER,
BEYOND A REASONABLE DOUBT," THAT THE ACCUSED IS GUILTY.  MORTENSEN V.
UNITED STATES, 322 U.S. 369, 374. 

FN5  "...  NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENCE TO BE
TWICE PUT IN JEOPARDY OF LIFE OR LIMB; ..." 

FN6  "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."  REV. STAT. SEC. 1044, AS AMENDED BY 45
STAT. 51, 18 U.S.C. SEC. 582. 

FN7  THE HISTORY OF THE TOBACCO INDUSTRY IN AMERICA AND OF THE
LITIGATION WHICH RESULTED IN THE DISSOLUTION OF THE TOBACCO TRUST IN
1911 IS SET FORTH IN UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S.
106-193.  SEE ALSO, UNITED STATES V. AMERICAN TOBACCO CO., 191 F. 371
431, CONTAINING THE DECREE OF DISSOLUTION AND SEE 164 F. 700-728, 1024,
FOR THE REPORT OF THE CASE IN THE CIRCUIT COURT.  WHILE THE NAMES OF
SOME OF THE PARTIES IN THE EARLIER CASE ARE THOSE OF THE PRESENT
PETITIONERS, THE PRESENT PROCEEDINGS DO NOT REFLECT A FAILURE ON THEIR
PART TO OBSERVE THE REQUIREMENTS OF THE 1911 DECREE.  ALTHOUGH THE
DECREE OF DISSOLUTION RESULTED IN THE SEPARATION OF ASSETS AMONG THE
AMERICAN, LIGGETT AND REYNOLDS COMPANIES, AS WELL AS P. LORILLARD
COMPANY AND OTHERS, THERE IS NO CONTENTION HERE THAT COMMON OWNERSHIP
OF STOCK AND THE INTERLOCKING OF OFFICERS AND DIRECTORS AMONG THOSE
COMPANIES HAVE CONTINUED TO EXIST.  THE TOBACCO INDUSTRY ALSO HAS
CHANGED FROM ONE DEALING PRIMARILY IN THE DISTRIBUTION OF SMOKING
TOBACCO, CHEWING TOBACCO, LITTLE CIGARS AND CIGARETTES TO ONE DEALING
PRIMARILY IN CIGARETTES.  THE RECORD SHOWS THAT IN 1910 THE WEIGHT OF
THE TOBACCO USED IN THE DOMESTIC MANUFACTURE OF CIGARETTES WAS ABOUT
31,000,000 POUNDS OUT OF 522,000,000 POUNDS, OR LESS THAN 6%, WHEREAS
IN 1939, IT WAS 509,000,000 POUNDS OUT OF 885,000,000 POUNDS, OR
57.5%. 

BY THE 1911 DECREE, THE CIGARETTE BRANDS OF THE TRUST WERE
DISTRIBUTED AS FOLLOWS:  TO AMERICAN: SWEET CAPORAL, PALL MALL, HASSAN
AND MECCA.  TO LIGGETT:  AMERICAN BEAUTY, FATIMA, PIEDMONT, IMPERIALES,
HOME RUN AND KING BEE.  TO P. LORILLARD COMPANY:  HELMAR, MURAD, MOGUL,
TURKISH TROPHIES AND EGYPTIAN DEITIES.  NEITHER THE OLD TRUST NOR THE
PETITIONERS IN THE PRESENT CASES HAVE EVER DONE MUCH GENERAL CIGAR
BUSINESS.  REYNOLDS IN 1911 HAD NO CIGARETTE BUSINESS AND IT RECEIVED
NONE BY THE DECREE.  IT THEN WAS SMALL IN COMPARISON WITH THE OTHER
COMPANIES NAMED.  IN 1913, IT PUT ITS CAMEL CIGARETTES ON THE MARKET. 
THESE WERE NEITHER TURKISH, PSEUDO-TURKISH, NOR VIRGINIA CIGARETTES. 
THEY WERE MADE LARGELY OF BURLEY TOBACCO WHICH HAD NOT BEEN USED IN ANY
SUCCESSFUL CIGARETTE UP TO THAT TIME.  THEY WERE "CASED" OR FLAVORED -
AN OLD PROCESS IN PREPARING PLUG TOBACCO BUT AN INNOVATION IN
CIGARETTES.  THAT COMPETITION WAS HIGHLY SUCCESSFUL.  REYNOLDS' SALES
ROSE TO WHERE, IN 1919, IT MADE ABOUT 40% OF ALL DOMESTIC CIGARETTE
SALES IN THE UNITED STATES.  BY 1917 ITS TOTAL PRODUCTION EXCEEDED BY
50% THE TOTAL NATIONAL PRODUCTION OF CIGARETTES IN 1911.  IN 1916,
AMERICAN LAUNCHED A NEW BRAND OF BURLEY CIGARETTES - LUCKY STRIKES. 
LIGGETT CHANGED ITS CHESTERFIELD BRAND FROM A VIRGINIA TYPE CIGARETTE
TO A BURLEY BLEND.  LORILLARD, IN 1926, LAUNCHED A NEW BRAND OF OLD
GOLD CIGARETTES.  BY THAT TIME THE "BIG THREE" WERE AMERICAN, LIGGETT
AND REYNOLDS AND THOSE COMPANIES ARE THE THREE CIGARETTE-PRODUCING
COMPANIES THAT ARE PARTIES TO THE PRESENT PROCEEDINGS. 

FN8  THE IDENTITY OF THE PARTIES REFERRED TO IN THE PRESENT CASES IS
MORE READILY RECOGNIZABLE WHEN THEY ARE IDENTIFIED WITH THEIR PRODUCTS
AS FOLLOWS: 

AMERICAN - LUCKY STRIKE, PALL MALL (BY A SUBSIDIARY), HERBERT
TAREYTON CIGARETTES, BULL DURHAM TOBACCO, ABOUT 50 BRANDS OF CHEWING
TOBACCO AND HUNDREDS OF BRANDS OF SMOKING TOBACCO. 

LIGGETT - CHESTERFIELD AND ABOUT 15 OTHER BRANDS OF CIGARETTES, 45
BRANDS OF SMOKING TOBACCO, INCLUDING VELVET AND DUKE'S MIXTURE AND OVER
25 BRANDS OF CHEWING TOBACCO. 

REYNOLDS - CAMEL CIGARETTES, 12 BRANDS OF SMOKING TOBACCO, INCLUDING
PRINCE ALBERT, AND 88 BRANDS OF CHEWING TOBACCO. 

P. LORILLARD COMPANY - OLD GOLD, AND SENSATION CIGARETTES, AS WELL AS
OTHER TOBACCO PRODUCTS. 

PHILIP MORRIS & CO., LTD., INCORPORATED - PHILIP MORRIS, AND PAUL
JONES CIGARETTES. 

BRITISH-AMERICAN TOBACCO COMPANY, LIMITED - MANY TOBACCO PRODUCTS,
INCLUDING THOSE OF ITS SUBSIDIARY, BROWN & WILLIAMSON TOBACCO
CORPORATION. 

BROWN & WILLIAMSON TOBACCO CORPORATION - RALEIGH CIGARETTES. 

THE IMPERIAL TOBACCO COMPANY, LTD. - TOBACCO PRODUCTS SOLD IN GREAT
BRITAIN AND IRELAND. 

UNIVERSAL LEAF TOBACCO COMPANY, INC. - DEALERS IN LEAF TOBACCO. 

STEPHANO BROTHERS, AXTON-FISHER TOBACCO COMPANY AND LARUS BRO. CO.,
INC., ARE ALL PRODUCERS OF THE SO-CALLED "10 CENT CIGARETTES."  THEIR
CIGARETTES, LIKE CERTAIN COMPARABLE CIGARETTES PRODUCED BY P. LORILLARD
COMPANY AND BY PHILIP MORRIS & CO., LTD., INCORPORATED, GENERALLY SELL
FOR 10 CENTS A PACKAGE IN CONTRAST TO 13 OR 15 CENTS OR MORE FOR THE
LEADING BRANDS OF BURLEY BLEND CIGARETTES. 

FN9  FOR A DESCRIPTION OF THE AUCTION METHODS OF SELLING IN GEORGIA,
SEE TOWNSEND V. YEOMANS, 301 U.S. 441, 445, AND IN NORTH CAROLINA, SEE
CURRIN V. WALLACE, 306 U.S. 1, 7-8.  SEE ALSO, MARKET PRACTICES
DESCRIBED IN THE REPORT OF THE COMMITTEE ON AGRICULTURE OF THE HOUSE OF
REPRESENTATIVES, JUNE 5, 1935, TO ACCOMPANY H.R. 8026.  H. REP. NO.
1102, 74TH CONG., 1ST SESS. 

FN10  "IN EVERY SUIT IN EQUITY BROUGHT IN ANY DISTRICT COURT OF THE
UNITED STATES UNDER ANY OF SAID ACTS (INCLUDING THE SHERMAN ANT-TRUST
ACT), WHEREIN THE UNITED STATES IS COMPLAINANT, AN APPEAL FROM THE
FINAL DECREE OF THE DISTRICT COURT WILL LIE ONLY TO THE SUPREME COURT
AND MUST BE TAKEN WITHIN SIXTY DAYS FROM THE ENTRY THEREOF:  PROVIDED,
HOWEVER, THAT IF, UPON ANY SUCH APPEAL, IT SHALL BE FOUND THAT, BY
REASON OF DISQUALIFICATION, THERE SHALL NOT BE A QUORUM OF JUSTICES OF
THE SUPREME COURT QUALIFIED TO PARTICIPATE IN THE CONSIDERATION OF THE
CASE ON THE MERITS, THEN, IN LIEU OF A DECISION BY THE SUPREME COURT,
THE CASE SHALL BE IMMEDIATELY CERTIFIED BY THE SUPREME COURT TO THE
CIRCUIT COURT OF APPEALS OF THE CIRCUIT IN WHICH IS LOCATED THE
DISTRICT IN WHICH THE SUIT WAS BROUGHT WHICH COURT SHALL THEREUPON HAVE
JURISDICTION TO HEAR AND DETERMINE THE APPEAL IN SUCH CASE, AND IT
SHALL BE THE DUTY OF THE SENIOR CIRCUIT JUDGE OF SAID CIRCUIT COURT OF
APPEALS, QUALIFIED TO PARTICIPATE IN THE CONSIDERATION OF THE CASE ON
THE MERITS, TO DESIGNATE IMMEDIATELY THREE CIRCUIT JUDGES OF SAID
COURT, ONE OF WHOM SHALL BE HIMSELF AND THE OTHER TWO OF WHOM SHALL BE
THE TWO CIRCUIT JUDGES NEXT IN ORDER OF SENIORITY TO HIMSELF, TO HEAR
AND DETERMINE THE APPEAL IN SUCH CASE AND IT SHALL BE THE DUTY OF THE
COURT, SO COMPRISED, TO ASSIGN THE CASE FOR ARGUMENT AT THE EARLIEST
PRACTICABLE DATE AND TO HEAR AND DETERMINE THE SAME, AND THE DECISION
OF THE THREE CIRCUIT JUDGES SO DESIGNATED, OR OF A MAJORITY IN NUMBER
THEREOF, SHALL BE FINAL AND THERE SHALL BE NO REVIEW OF SUCH DECISION
BY APPEAL OR CERTIORARI OR OTHERWISE...."  32 STAT. 823, AS AMENDED BY
58 STAT. 272, 15 U.S.C. SUPP. IV, SEC. 29. 

THE PROVISO IN THE ABOVE SECTION WAS ADDED BY PUBLIC LAW 332, 78TH
CONG., 2D SESS., APPROVED JUNE 9, 1944, WHICH ALSO MADE THE ACT
APPLICABLE "TO EVERY CASE PENDING BEFORE THE SUPREME COURT OF THE
UNITED STATES ON THE DATE OF ITS ENACTMENT."  58 STAT. 272.  THE CASE
AGAINST THE ALUMINUM COMPANY OF AMERICA WAS THEN PENDING IN THIS COURT
AND, ON JUNE 12, 1944, THIS COURT CERTIFIED IT TO THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT BECAUSE OF THE LACK OF A QUORUM OF
JUSTICES OF THE SUPREME COURT QUALIFIED TO PARTICIPATE IN THE
CONSIDERATION OF IT ON ITS MERITS.  IT WAS TRIED BEFORE THE THREE
SENIOR JUDGES OF THE CIRCUIT COURT OF APPEALS (JUDGES LEARNED HAND,
SWAN AND AUGUSTUS N. HAND) AND IS THE ONLY CASE THAT HAS BEEN TRIED
UNDER THAT PROVISO. 

FN11  UPON SUGGESTION OF THE DEATH OF EDWARD H. THURSTON, A
PETITIONER IN CASE NO. 19, A MOTION TO DISMISS THE WRIT OF CERTIORARI
AS TO HIM WAS GRANTED BY THE COURT ON FEBRUARY 11, 1946, 327 U.S. 764. 
IT REMAINS FOR THE CIRCUIT COURT OF APPEALS AND THE DISTRICT COURT OF
THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY TO TAKE SUCH
FURTHER ACTION AS LAW AND JUSTICE MAY REQUIRE.  SEE SINGER V. UNITED
STATES, 323 U.S. 338, 346; UNITED STATES V. JOHNSON, 319 U.S. 503,
520. 

MR. JUSTICE FRANKFURTER ENTIRELY AGREES WITH THE JUDGMENT AND THE
OPINION IN THESE CASES.  HE, HOWEVER, WOULD HAVE ENLARGED THE SCOPE OF
THE ORDERS ALLOWING THE PETITIONS FOR CERTIORARI SO AS TO PERMIT
CONSIDERATION OF THE ALLEGED ERRORS IN REGARD TO THE SELECTION OF THE
JURY. 

MR. JUSTICE REED AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I CONCUR IN THE COURT'S OPINION AND JUDGMENT.  IN DOING SO, HOWEVER,
I EXPRESS NO JUDGMENT CONCERNING OTHER QUESTIONS DETERMINED ON THE
APPEAL TO THE CIRCUIT COURT OF APPEALS, 147 F.2D 93, AND PRESENTED IN
THE APPLICATION FOR CERTIORARI OR THE LATER PETITION FOR REHEARING AND
ENLARGEMENT OF THE SCOPE OF REVIEW HERE, INCLUDING THE QUESTION WHETHER
UPON THE PARTICULAR FACTS THE LAW HAS BEEN APPLIED IN SUCH A MANNER AS
TO BRING ABOUT, IN SUBSTANTIAL EFFECT, MULTIPLE PUNISHMENT FOR THE SAME
OFFENSE.  CF. PINKERTON V. UNITED STATES, ANTE, PP. 640, 648,
DISSENTING OPINION. 

THAT QUESTION HAS BEEN DISCUSSED IN THE BRIEFS AND THE ARGUMENT, FOR
ITS BEARING UPON THE DISPOSITION OF THE SINGLE QUESTION WHICH
CERTIORARI WAS GRANTED TO REVIEW, NAMELY, "WHETHER ACTUAL EXCLUSION OF
COMPETITORS IS NECESSARY TO THE CRIME OF MONOPOLIZATION UNDER SEC. 2 OF
THE SHERMAN ACT."  324 U.S. 836.  ON THIS ISSUE I HAVE NO DOUBT OF THE
CORRECTNESS OF THE COURT'S CONCLUSION THAT THE OFFENSE OF
MONOPOLIZATION IS COMPLETE WHEN POWER IS ACQUIRED TO EXCLUDE
COMPETITORS AND THEREFORE THAT ACTUAL EXCLUSION NEED NOT BE SHOWN, FOR
THE REASONS SET FORTH IN THE OPINION.  WHETHER, IN THIS VIEW, MULTIPLE
PUNISHMENT MAY ARISE UPON APPLICATION OF THE LAW TO PARTICULAR FACTS
UNDER COUNTS CHARGING CONSPIRACY IN RESTRAINT OF TRADE, MONOPOLIZATION,
AND CONSPIRACY TO MONOPOLIZE PRESENTS A DIFFERENT QUESTION WHICH CAN BE
DETERMINED ONLY BY EXAMINATION OF THE MANNER IN WHICH THE PARTICULAR
APPLICATION HAS BEEN MADE.  SINCE, IN VIEW OF THE LIMITED CHARACTER OF
OUR ACTION IN GRANTING CERTIORARI, NEITHER THE ISSUE OF MULTIPLE
PUNISHMENT NOR THE FACTS OF RECORD UPON WHICH IT ARISES ARE BEFORE US
FOR REVIEW, IT WOULD BE INAPPROPRIATE TO EXPRESS OPINION ON THAT
QUESTION. 
..END :



UNITED STATES V. LOVETT, 328 U.S. 303 


ARGUED MAY 3, 6, 1946.  - DECIDED JUNE 3, 1946.  - 104 CT. CLS. 557, 66
F.SUPP.  142, AFFIRMED. 


1.  THE ISSUE AS TO THE VALIDITY OF SEC. 304 OF THE URGENT DEFICIENCY
APPROPRIATION ACT OF 1943, PROVIDING THAT, AFTER NOVEMBER 15, 1943, NO
SALARY OR OTHER COMPENSATION SHALL BE PAID TO CERTAIN EMPLOYEES OF THE
GOVERNMENT (SPECIFIED BY NAME) OUT OF ANY MONIES THEN OR THEREAFTER
APPROPRIATED EXCEPT FOR SERVICES AS JURORS OR MEMBERS OF THE ARMED
FORCES, UNLESS THEY WERE AGAIN APPOINTED BY THE PRESIDENT WITH THE
ADVICE AND CONSENT OF THE SENATE PRIOR TO SUCH DATE, IS NOT A MERE
POLITICAL ISSUE OVER WHICH CONGRESS HAS FINAL SAY; AND A CHALLENGE TO
ITS CONSTITUTIONALITY PRESENTS A JUSTICIABLE QUESTION TO THE COURTS. 
P. 313. 

(A)  IT IS NOT A MERE APPROPRIATION MEASURE OVER WHICH CONGRESS HAS
COMPLETE CONTROL.  P. 313. 

(B)  ITS PURPOSE WAS NOT MERELY TO CUT OFF THE EMPLOYEES'
COMPENSATION THROUGH REGULAR DISBURSING CHANNELS BUT PERMANENTLY TO BAR
THEM FROM GOVERNMENT SERVICE, EXCEPT AS JURORS OR SOLDIERS - BECAUSE OF
WHAT CONGRESS THOUGHT OF THEIR POLITICAL BELIEFS.  P. 313. 

(C)  THE CONSTITUTION DID NOT CONTEMPLATE THAT CONGRESSIONAL ACTION
AIMED AT THREE INDIVIDUALS, WHICH STIGMATIZED THEIR REPUTATIONS AND
SERIOUSLY IMPAIRED THEIR CHANCES TO EARN A LIVING, COULD NEVER BE
CHALLENGED IN COURT.  P. 314. 

2.  SECTION 304 VIOLATES ARTICLE I, SEC. 3, CL. 9 OF THE
CONSTITUTION, WHICH FORBIDS THE ENACTMENT OF ANY BILL OF ATTAINDER OR
EX POST FACTO LAW.  P. 315. 

(A)  LEGISLATIVE ACTS, NO MATTER WHAT THEIR FORM, THAT APPLY EITHER
TO NAMED INDIVIDUALS OR TO EASILY ASCERTAINABLE MEMBERS OF A GROUP IN
SUCH A WAY AS TO INFLICT PUNISHMENT ON THEM WITHOUT A JUDICIAL TRIAL
ARE BILLS OF ATTAINDER PROHIBITED BY THE CONSTITUTION.  CUMMINGS V.
MISSOURI, 4 WALL.  277; EX PARTE GARLAND, 4 WALL.  333.  P. 315. 

(B)  SECTION 304 CLEARLY ACCOMPLISHES THE PUNISHMENT OF NAMED
INDIVIDUALS WITHOUT A JUDICIAL TRIAL.  P. 316. 

(C)  THE FACT THAT THE PUNISHMENT IS INFLICTED THROUGH THE
INSTRUMENTALITY OF AN ACT SPECIFICALLY CUTTING OFF THE PAY OF CERTAIN
NAMED INDIVIDUALS FOUND BY CONGRESS TO BE GUILTY OF DISLOYALTY MAKES IT
NO LESS EFFECTIVE THAN IF IT HAD BEEN DONE BY AN ACT WHICH DESIGNATED
THE CONDUCT AS CRIMINAL.  P. 316. 

UNITED STATES V. LOVETT. 

NO. 809.  CERTIORARI TO THE COURT OF CLAIMS.* 

*TOGETHER WITH NO. 810, UNITED STATES V. WATSON, AND NO. 811, UNITED
STATES V. DODD, ON CERTIORARI TO THE SAME COURT, ARGUED AND DECIDED ON
THE SAME DATES. 

THE COURT OF CLAIMS ENTERED JUDGMENTS IN FAVOR OF CERTAIN GOVERNMENT
EMPLOYEES FOR SERVICES RENDERED AFTER NOVEMBER 15, 1943, TO WHOM SEC.
304 OF THE URGENT DEFICIENCY APPROPRIATION ACT OF 1943, 57 STAT. 431,
450, FORBADE PAYMENT OF ANY COMPENSATION AFTER THAT DATE FROM
APPROPRIATED FUNDS.  104 CT. CLS. 557, 66 F.SUPP.  142.  THIS COURT
GRANTED CERTIORARI.  327 U.S. 773.  AFFIRMED, P. 318. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1943 THE RESPONDENTS, LOVETT, WATSON, AND DODD, WERE AND HAD BEEN
FOR SEVERAL YEARS WORKING FOR THE GOVERNMENT.  THE GOVERNMENT AGENCIES
WHICH HAD LAWFULLY EMPLOYED THEM WERE FULLY SATISFIED WITH THE QUALITY
OF THEIR WORK AND WISHED TO KEEP THEM EMPLOYED ON THEIR JOBS.  OVER THE
PROTEST OF THOSE EMPLOYING AGENCIES, CONGRESS PROVIDED IN SEC. 304 OF
THE URGENT DEFICIENCY APPROPRIATION ACT OF 1943, BY WAY OF AN AMENDMENT
ATTACHED TO THE HOUSE BILL, THAT AFTER NOVEMBER 15, 1943, NO SALARY OR
COMPENSATION SHOULD BE PAID RESPONDENTS OUT OF ANY MONIES THEN OR
THEREAFTER APPROPRIATED EXCEPT FOR SERVICES AS JURORS OR MEMBERS OF THE
ARMED FORCES, UNLESS THEY WERE PRIOR TO NOVEMBER 15, 1943 AGAIN
APPOINTED TO JOBS BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE
SENATE.  FN1  57 STAT. 431, 450.  NOTWITHSTANDING THE CONGRESSIONAL
ENACTMENT, AND THE FAILURE OF THE PRESIDENT TO REAPPOINT RESPONDENTS,
THE AGENCIES KEPT ALL THE RESPONDENTS AT WORK ON THEIR JOBS FOR VARYING
PERIODS AFTER NOVEMBER 15, 1943; BUT THEIR COMPENSATION WAS
DISCONTINUED AFTER THAT DATE.  TO SECURE COMPENSATION FOR THIS POST
NOVEMBER 15TH WORK, RESPONDENTS BROUGHT THESE ACTIONS IN THE COURT OF
CLAIMS.  THEY URGED THAT SEC. 304 IS UNCONSTITUTIONAL AND VOID ON THE
GROUNDS THAT:  (1) THE SECTION, PROPERLY INTERPRETED, SHOWS A
CONGRESSIONAL PURPOSE TO EXERCISE THE POWER TO REMOVE EXECUTIVE
EMPLOYEES, A POWER NOT ENTRUSTED TO CONGRESS BUT TO THE EXECUTIVE
BRANCH OF GOVERNMENT UNDER ARTICLE II, SECS. 1, 2, 3, AND 4 OF THE
CONSTITUTION; (2) THE SECTION VIOLATES ARTICLE I, SEC. 9, CLAUSE 3, OF
THE CONSTITUTION WHICH PROVIDES THAT "NO BILL OF ATTAINDER OR EX POST
FACTO LAW SHALL BE PASSED"; (3) THE SECTION VIOLATES THE FIFTH
AMENDMENT, IN THAT IT SINGLES OUT THESE THREE RESPONDENTS AND DEPRIVES
THEM OF THEIR LIBERTY AND PROPERTY WITHOUT DUE PROCESS OF LAW.  THE
SOLICITOR GENERAL, APPEARING FOR THE GOVERNMENT, JOINED IN THE FIRST
TWO OF RESPONDENTS' CONTENTIONS BUT TOOK NO POSITION ON THE THIRD. 
HOUSE RESOLUTION 386, 89 CONG. REC. 10882, AND JOINT RESOLUTION NO.
230, 78TH CONGRESS, 58 STAT. 113, AUTHORIZED A SPECIAL COUNSEL TO
APPEAR ON BEHALF OF THE CONGRESS.  THIS COUNSEL DENIED ALL THREE OF
RESPONDENTS' CONTENTIONS.  HE URGED THAT SEC. 304 WAS A VALID EXERCISE
OF CONGRESSIONAL POWER UNDER ARTICLE I, SEC. 8, CLAUSE 1; SEC. 8,
CLAUSE 18; AND SEC. 9, CLAUSE 7 OF THE CONSTITUTION, WHICH SECTIONS
EMPOWER CONGRESS "TO LAY AND COLLECT TAXES  ...  TO PAY THE DEBTS AND
PROVIDE FOR THE COMMON DEFENCE AND GENERAL WELFARE OF THE UNITED
STATES," AND "TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR
CARRYING INTO EXECUTION  ...  ALL  ...  POWERS VESTED BY THIS
CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES, OR IN ANY
DEPARTMENT OR OFFICER THEREOF," AND PROVIDE THAT "NO MONEY SHALL BE
DRAWN FROM THE TREASURY, BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BY
LAW  ..."  COUNSEL FOR CONGRESS ALSO URGED THAT SEC. 304 DID NOT
PURPORT TO TERMINATE RESPONDENTS' EMPLOYMENT.  ACCORDING TO HIM, IT
MERELY CUT OFF RESPONDENTS' PAY AND DEPRIVED GOVERNMENTAL AGENCIES OF
ANY POWER TO MAKE ENFORCEABLE CONTRACTS WITH RESPONDENTS FOR ANY
FURTHER COMPENSATION.  THE CONTENTION WAS THAT THIS INVOLVED SIMPLY AN
EXERCISE OF CONGRESSIONAL POWERS OVER APPROPRIATIONS, WHICH, ACCORDING
TO THE ARGUMENT, ARE PLENARY AND NOT SUBJECT TO JUDICIAL REVIEW.  ON
THIS PREMISE COUNSEL FOR CONGRESS URGED THAT THE CHALLENGE OF THE
CONSTITUTIONALITY OF SEC. 304 RAISED NO JUSTICIABLE CONTROVERSY.  THE
COURT OF CLAIMS ENTERED JUDGMENTS IN FAVOR OF RESPONDENTS.  SOME OF THE
JUDGES WERE OF THE OPINION THAT SEC. 304, PROPERLY INTERPRETED, DID NOT
TERMINATE RESPONDENTS' EMPLOYMENT, BUT ONLY PROHIBITED PAYMENT OF
COMPENSATION OUT OF FUNDS GENERALLY APPROPRIATED, AND THAT,
CONSEQUENTLY, THE CONTINUED EMPLOYMENT OF RESPONDENTS WAS VALID, AND
JUSTIFIED THEIR BRINGING ACTIONS FOR PAY IN THE COURT OF CLAIMS.  OTHER
MEMBERS OF THE COURT THOUGHT SEC. 304 UNCONSTITUTIONAL AND VOID, EITHER
AS A BILL OF ATTAINDER, AN ENCROACHMENT ON EXCLUSIVE EXECUTIVE
AUTHORITY, OR A DENIAL OF DUE PROCESS.  104 CT. CLS. 557, 66 F.SUPP. 
142.  WE GRANTED CERTIORARI BECAUSE OF THE MANIFEST IMPORTANCE OF THE
QUESTIONS INVOLVED. 

IN THIS COURT THE PARTIES AND COUNSEL FOR CONGRESS HAVE URGED THE
SAME POINTS AS THEY DID IN THE COURT OF CLAIMS.  ACCORDING TO THE VIEW
WE TAKE WE NEED NOT DECIDE WHETHER SEC. 304 IS AN UNCONSTITUTIONAL
ENCROACHMENT ON EXECUTIVE POWER OR A DENIAL OF DUE PROCESS OF LAW, AND
THE SECTION IS NOT CHALLENGED ON THE GROUND THAT IT VIOLATES THE FIRST
AMENDMENT.  OUR INQUIRY IS THUS CONFINED TO WHETHER THE ACTIONS IN THE
LIGHT OF A PROPER CONSTRUCTION OF THE ACT PRESENT JUSTICIABLE
CONTROVERSIES; AND, IF SO, WHETHER SEC. 304 IS A BILL OF ATTAINDER
AGAINST THESE RESPONDENTS, INVOLVING A USE OF POWER WHICH THE
CONSTITUTION UNEQUIVOCALLY DECLARES CONGRESS CAN NEVER EXERCISE.  THESE
QUESTIONS REQUIRE AN INTERPRETATION OF THE MEANING AND PURPOSE OF THE
LEADING TO ITS PASSAGE.  WE, CONSEQUENTLY, FIND IT NECESSARY TO SET OUT
THESE CIRCUMSTANCES SOMEWHAT IN DETAIL. 

IN THE BACKGROUND OF THE STATUTE HERE CHALLENGED LIES THE HOUSE OF
REPRESENTATIVES' FEELING IN THE LATE THIRTIES THAT MANY "SUBVERSIVES"
WERE OCCUPYING INFLUENTIAL POSITIONS IN THE GOVERNMENT AND ELSEWHERE
AND THAT THEIR INFLUENCE MUST NOT REMAIN UNCHALLENGED.  AS PART OF ITS
PROGRAM AGAINST "SUBVERSIVE" ACTIVITIES THE HOUSE IN MAY 1938 CREATED A
COMMITTEE ON UN-AMERICAN ACTIVITIES, WHICH BECAME KNOWN AS THE DIES
COMMITTEE, AFTER ITS CHAIRMAN, CONGRESSMAN MARTIN DIES.  H. RES. 282,
83 CONG. REC. 7568-7587.  THIS COMMITTEE CONDUCTED A SERIES OF
INVESTIGATIONS AND MADE LISTS OF PEOPLE AND ORGANIZATIONS IT THOUGHT
"SUBVERSIVE."  SEE E.G.:  H. REP. NO. 1, 77TH CONG., 1ST SESS.; H. REP.
NO. 2748, 77TH CONG., 2D SESS.  THE CREATION OF THE DIES COMMITTEE WAS
FOLLOWED BY PROVISIONS SUCH AS SEC. 9A OF THE HATCH ACT, 53 STAT. 1148,
1149, AND SECS. 15(F) AND 17(B) OF THE EMERGENCY RELIEF APPROPRIATION
ACT OF 1941, 54 STAT. 611, WHICH FORBADE THE HOLDING OF A FEDERAL JOB
BY ANYONE WHO WAS A MEMBER OF A POLITICAL PARTY OR ORGANIZATION THAT
ADVOCATED THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT IN THE
UNITED STATES.  IT BECAME THE PRACTICE TO INCLUDE A SIMILAR PROHIBITION
IN ALL APPROPRIATIONS ACTS, TOGETHER WITH CRIMINAL PENALTIES FOR ITS
VIOLATION.  FN2  UNDER THESE PROVISIONS THE FEDERAL BUREAU OF
INVESTIGATION BEGAN WHOLESALE INVESTIGATIONS OF FEDERAL EMPLOYEES,
WHICH INVESTIGATIONS WERE FINANCED BY SPECIAL CONGRESSIONAL
APPROPRIATIONS.  55 STAT. 292, 56 STAT. 468, 482.  THOUSANDS WERE
INVESTIGATED. 

WHILE ALL THIS WAS HAPPENING, MR. DIES ON FEBRUARY 1, 1943, IN A LONG
SPEECH ON THE FLOOR OF THE HOUSE ATTACKED THIRTY-NINE NAMED GOVERNMENT
EMPLOYEES AS "IRRESPONSIBLE, UNREPRESENTATIVE, CRACKPOT, RADICAL
BUREAUCRATS" AND AFFILIATES OF "COMMUNIST FRONT ORGANIZATIONS."  AMONG
THESE NAMED INDIVIDUALS WERE THE THREE RESPONDENTS.  CONGRESSMAN DIES
TOLD THE HOUSE THAT RESPONDENTS, AS WELL AS THE OTHER THIRTY-SIX
INDIVIDUALS HE NAMED, WERE BECAUSE OF THEIR BELIEFS AND PAST
ASSOCIATIONS UNFIT TO "HOLD A GOVERNMENT POSITION" AND URGED CONGRESS
TO REFUSE "TO APPROPRIATE MONEY FOR THEIR SALARIES."  IN THIS
CONNECTION HE PROPOSED THAT THE COMMITTEE ON APPROPRIATIONS "TAKE
IMMEDIATE AND VIGOROUS STEPS TO ELIMINATE THESE PEOPLE FROM PUBLIC
OFFICE."  89 CONG. REC. 474, 479, 486.  FOUR DAYS LATER AN AMENDMENT
WAS OFFERED TO THE TREASURY-POST OFFICE APPROPRIATION BILL WHICH
PROVIDED THAT "NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL
BE USED TO PAY THE COMPENSATION OF" THE THIRTY-NINE INDIVIDUALS DIES
HAD ATTACKED.  89 CONG. REC. 645.  THE CONGRESSIONAL RECORD SHOWS THAT
THIS AMENDMENT PRECIPITATED A DEBATE THAT CONTINUED FOR SEVERAL DAYS. 
ID. 645-742.  ALL OF THOSE PARTICIPATING AGREED THAT THE "CHARGES"
AGAINST THE THIRTY-NINE INDIVIDUALS WERE SERIOUS.  SOME WANTED TO
ACCEPT CONGRESSMAN DIES' STATEMENTS AS SUFFICIENT PROOF OF "GUILT,"
WHILE OTHERS REFERRED TO SUCH PROPOSED ACTION AS "LEGISLATIVE
LYNCHING," ID. AT 651, SMACKING "OF THE PROCEDURE IN THE FRENCH CHAMBER
OF DEPUTIES, DURING THE REIGN OF TERROR."  ID. AT 654.  THE DIES
CHARGES WERE REFERRED TO AS "INDICTMENTS," AND MANY CLAIMED THIS MADE
IT NECESSARY THAT THE NAMED FEDERAL EMPLOYEES BE GIVEN A HEARING AND A
CHANCE TO PROVE THEMSELVES INNOCENT.  ID. AT 711.  CONGRESSMAN DIES
THEN SUGGESTED THAT THE APPROPRIATIONS COMMITTEE "WEIGH THE EVIDENCE
AND  ...  TAKE IMMEDIATE STEPS TO DISMISS THESE PEOPLE FROM THE FEDERAL
SERVICE."  ID. AT 651.  EVENTUALLY A RESOLUTION WAS PROPOSED TO DEFER
ACTION UNTIL THE APPROPRIATIONS COMMITTEE COULD INVESTIGATE, SO THAT
ACCUSED FEDERAL EMPLOYEES WOULD GET A CHANCE TO PROVE THEMSELVES
"INNOCENT" OF COMMUNISM OR DISLOYALTY, AND SO THAT EACH "MAN WOULD HAVE
HIS DAY IN COURT," AND "THERE WOULD BE NO STAR CHAMBER PROCEEDINGS." 
ID. AT 711 AND 713; BUT SEE ID. AT 715.  THE RESOLUTION WHICH WAS
FINALLY PASSED AUTHORIZED THE APPROPRIATIONS COMMITTEE ACTING THROUGH A
SPECIAL SUBCOMMITTEE "...  TO EXAMINE INTO ANY AND ALL ALLEGATIONS OR
CHARGES THAT CERTAIN PERSONS IN THE EMPLOY OF THE SEVERAL EXECUTIVE
DEPARTMENTS AND OTHER EXECUTIVE AGENCIES ARE UNFIT TO CONTINUE IN SUCH
EMPLOYMENT BY REASON OF THEIR PRESENT ASSOCIATION OR MEMBERSHIP OR PAST
ASSOCIATION OR MEMBERSHIP IN OR WITH ORGANIZATIONS WHOSE AIMS OR
PURPOSES ARE OR HAVE BEEN SUBVERSIVE TO THE GOVERNMENT OF THE UNITED
STATES."  ID. AT 734, 742.  THE COMMITTEE WAS TO HAVE FULL PLENARY
POWERS, INCLUDING THE RIGHT TO SUMMON WITNESSES AND PAPERS, AND WAS TO
REPORT ITS "FINDINGS AND DETERMINATION" TO THE HOUSE.  IT WAS
AUTHORIZED TO ATTACH LEGISLATION RECOMMENDED BY IT TO ANY GENERAL OR
SPECIAL APPROPRIATION MEASURE, NOTWITHSTANDING GENERAL HOUSE RULES
AGAINST SUCH PRACTICE.  ID. AT 734.  THE PURPOSE OF THE RESOLUTION WAS
THUS DESCRIBED BY THE CHAIRMAN OF THE COMMITTEE ON APPROPRIATIONS IN
HIS CLOSING REMARKS IN FAVOR OF ITS PASSAGE:  "THE THIRD AND THE REALLY
IMPORTANT EFFECT IS THAT WE WILL EXPEDITE ADJUDICATION AND DISPOSITION
OF THESE CASES AND THEREBY SERVE BOTH THE ACCUSED AND THE GOVERNMENT. 
THESE MEN AGAINST WHOM CHARGES ARE PENDING ARE FACED WITH A SERIOUS
SITUATION.  IF THEY ARE NOT GUILTY THEY ARE ENTITLED TO PROMPT
EXONERATION; ON THE OTHER HAND, IF THEY ARE GUILTY, THEN THE QUICKER
THE GOVERNMENT REMOVES THEM THE SOONER AND THE MORE CERTAINLY WILL WE
PROTECT THE NATION AGAINST SABOTAGE AND FIFTH-COLUMN ACTIVITY."  ID. AT
741. 

AFTER THE RESOLUTION WAS PASSED, A SPECIAL SUBCOMMITTEE OF THE
APPROPRIATIONS COMMITTEE HELD HEARINGS IN SECRET EXECUTIVE SESSION. 
THOSE CHARGED WITH "SUBVERSIVE" BELIEFS AND "SUBVERSIVE" ASSOCIATIONS
WERE PERMITTED TO TESTIFY, BUT LAWYERS, INCLUDING THOSE REPRESENTING
THE AGENCIES BY WHICH THE ACCUSED WERE EMPLOYED, WERE NOT PERMITTED TO
BE PRESENT.  AT THE HEARINGS, COMMITTEE MEMBERS, THE COMMITTEE STAFF,
AND WHATEVER WITNESS WAS UNDER EXAMINATION WERE THE ONLY ONES PRESENT. 
THE EVIDENCE, ASIDE FROM THAT GIVEN BY THE ACCUSED EMPLOYEES, APPEARS
TO HAVE BEEN LARGELY THAT OF REPORTS MADE BY THE DIES COMMITTEE, ITS
INVESTIGATORS, AND FEDERAL BUREAU OF INVESTIGATION REPORTS, THE LATTER
BEING TREATED AS TOO CONFIDENTIAL TO BE MADE PUBLIC. 

AFTER THIS HEARING, THE SUBCOMMITTEE'S REPORTS AND RECOMMENDATIONS
WERE SUBMITTED TO THE HOUSE AS PART OF THE APPROPRIATION COMMITTEE'S
REPORT.  THE SUBCOMMITTEE STATED THAT IT HAD REGARDED THE
INVESTIGATIONS "AS IN THE NATURE OF AN INQUEST OF OFFICE" WITH THE
ULTIMATE PURPOSE OF PURGING THE PUBLIC SERVICE OF ANYONE FOUND GUILTY
OF "SUBVERSIVE ACTIVITY."  THE COMMITTEE, STATING THAT "SUBVERSIVE
ACTIVITY" HAD NOT BEFORE BEEN DEFINED BY CONGRESS OR BY THE COURTS,
FORMULATED ITS OWN DEFINITION OF "SUBVERSIVE ACTIVITY" WHICH WE SET OUT
IN THE MARGIN.  FN3  RESPONDENTS WATSON, DODD, AND LOVETT WERE,
ACCORDING TO THE SUBCOMMITTEE, GUILTY OF HAVING ENGAGED IN "SUBVERSIVE
ACTIVITY WITHIN THE DEFINITION ADOPTED BY THE COMMITTEE."  H. REP. NO.
448, 78TH CONG., 1ST SESS., 5-7, 9.  THE ULTIMATE FINDING AND
RECOMMENDATION AS TO RESPONDENT WATSON, WHICH WAS SUBSTANTIALLY SIMILAR
TO THE FINDINGS WITH RESPECT TO LOVETT AND DODD, READ AS FOLLOWS:
"UPON CONSIDERATION OF ALL OF THE EVIDENCE, YOUR COMMITTEE FINDS THAT
THE MEMBERSHIP AND ASSOCIATION OF DR. GOODWIN B. WATSON WITH THE
ORGANIZATIONS MENTIONED, AND HIS VIEWS AND PHILOSOPHIES AS EXPRESSED IN
VARIOUS STATEMENTS AND WRITINGS CONSTITUTE SUBVERSIVE ACTIVITY WITHIN
THE DEFINITION ADOPTED BY YOUR COMMITTEE, AND THAT HE IS, THEREFORE,
UNFIT FOR THE PRESENT TO CONTINUE IN GOVERNMENT EMPLOYMENT."  H. REP.
NO. 448, 78TH CONG., 1ST SESS., P. 6.  AS TO LOVETT THE COMMITTEE
FURTHER REPORTED THAT IT HAD REJECTED A "STRONG APPEAL" FROM THE
SECRETARY OF THE INTERIOR FOR PERMISSION TO RETAIN LOVETT IN GOVERNMENT
SERVICE, BECAUSE AS THE COMMITTEE STATED, IT COULD NOT "ESCAPE THE
CONVICTION THAT THIS OFFICIAL IS UNFIT TO HOLD A POSITION OF TRUST WITH
THIS GOVERNMENT BY REASON OF HIS MEMBERSHIP, ASSOCIATION, AND
AFFILIATION WITH ORGANIZATIONS WHOSE AIMS AND PURPOSES ARE SUBVERSIVE
TO THE GOVERNMENT OF THE UNITED STATES."  ID. AT 12.    SECTION 304 WAS
SUBMITTED TO THE HOUSE ALONG WITH THE COMMITTEE REPORT.  CONGRESSMAN
KERR, WHO WAS CHAIRMAN OF THE SUBCOMMITTEE, STATED THAT THE ISSUE
BEFORE THE HOUSE WAS SIMPLY:  "... WHETHER OR NOT THE PEOPLE OF THIS
COUNTRY WANT MEN WHO ARE NOT IN SYMPATHY WITH THE INSTITUTIONS OF THIS
COUNTRY TO RUN IT."  HE SAID FURTHER:  "...  THESE PEOPLE UNDER
INVESTIGATION HAVE NO PROPERTY RIGHTS IN THESE OFFICES.  ONE CONGRESS
CAN TAKE AWAY THEIR RIGHTS GIVEN THEM BY ANOTHER."  89 CONG. REC.
4583.  OTHER MEMBERS OF THE HOUSE DURING SEVERAL DAYS OF DEBATE
BITTERLY ATTACKED THE MEASURE AS UNCONSTITUTIONAL AND UNWISE.  ID. AT
4482-4487, 4546-4556, 4581-4605.  FINALLY SEC. 304 WAS PASSED BY THE
HOUSE. 

THE SENATE APPROPRIATION COMMITTEE ELIMINATED SEC. 304 AND ITS ACTION
WAS SUSTAINED BY THE SENATE.  89 CONG. REC. 5024.  AFTER THE FIRST
CONFERENCE REPORT WHICH LEFT THE MATTER STILL IN DISAGREEMENT THE
SENATE VOTED 69 TO 0 AGAINST THE CONFERENCE REPORT WHICH LEFT SEC. 304
IN THE BILL.  THE HOUSE, HOWEVER, INSISTED ON THE AMENDMENT AND
INDICATED THAT IT WOULD NOT APPROVE ANY APPROPRIATION BILL WITHOUT SEC.
304.  FINALLY, AFTER THE FIFTH CONFERENCE REPORT SHOWED THAT THE HOUSE
WOULD NOT YIELD, THE SENATE ADOPTED SEC. 304.  WHEN THE PRESIDENT
SIGNED THE BILL HE STATED: "THE SENATE YIELDED, AS I HAVE BEEN FORCED
TO YIELD, TO AVOID DELAYING OUR CONDUCT OF THE WAR.  BUT I CANNOT SO
YIELD WITHOUT PLACING ON RECORD MY VIEW THAT THIS PROVISION IS NOT ONLY
UNWISE AND DISCRIMINATORY, BUT UNCONSTITUTIONAL."  H. DOC. 264, 78TH
CONG., 1ST SESS.

                                  I. 

IN VIEW OF THE FACTS JUST SET OUT, WE CANNOT AGREE WITH THE TWO
JUDGES OF THE COURT OF CLAIMS WHO HELD THAT SEC. 304 REQUIRED "A MERE
STOPPAGE OF DISBURSING ROUTINE, NOTHING MORE," AND LEFT THE EMPLOYER
GOVERNMENTAL AGENCIES FREE TO CONTINUE EMPLOYING RESPONDENTS AND TO
INCUR CONTRACTUAL OBLIGATIONS BY VIRTUE OF SUCH CONTINUED WORK WHICH
RESPONDENTS COULD ENFORCE IN THE COURT OF CLAIMS.  NOR CAN WE AGREE
WITH COUNSEL FOR CONGRESS THAT THE SECTION DID NOT PROVIDE FOR THE
DISMISSAL OF RESPONDENTS BUT MERELY FORBADE GOVERNMENTAL AGENCIES TO
COMPENSATE RESPONDENTS FOR THEIR WORK OR TO INCUR OBLIGATIONS FOR SUCH
COMPENSATION AT ANY AND ALL TIMES.  WE THEREFORE CANNOT CONCLUDE, AS HE
URGES, THAT SEC. 304 IS A MERE APPROPRIATION MEASURE, AND THAT, SINCE
CONGRESS UNDER THE CONSTITUTION HAS COMPLETE CONTROL OVER
APPROPRIATIONS, A CHALLENGE TO THE MEASURE'S CONSTITUTIONALITY DOES NOT
PRESENT A JUSTICIABLE QUESTION IN THE COURTS, BUT IS MERELY A POLITICAL
ISSUE OVER WHICH CONGRESS HAS FINAL SAY. 

WE HOLD THAT THE PURPOSE OF SEC. 304 WAS NOT MERELY TO CUT OFF
RESPONDENTS' COMPENSATION THROUGH REGULAR DISBURSING CHANNELS BUT
PERMANENTLY TO BAR THEM FROM GOVERNMENT SERVICE, AND THAT THE ISSUE OF
WHETHER IT IS CONSTITUTIONAL IS JUSTICIABLE.  THE SECTION'S LANGUAGE AS
WELL AS THE CIRCUMSTANCES OF ITS PASSAGE WHICH WE HAVE JUST DESCRIBED
SHOW THAT NO MERE QUESTION OF COMPENSATION PROCEDURE OR OF
APPROPRIATIONS WAS INVOLVED, BUT THAT IT WAS DESIGNED TO FORCE THE
EMPLOYING AGENCIES TO DISCHARGE RESPONDENTS AND TO BAR THEIR BEING
HIRED BY ANY OTHER GOVERNMENTAL AGENCY.  CF. UNITED STATES V.
DICKERSON, 310 U.S. 554.  ANY OTHER INTERPRETATION OF THE SECTION WOULD
COMPLETELY FRUSTRATE THE PURPOSE OF ALL WHO SPONSORED SEC. 304, WHICH
CLEARLY WAS TO "PURGE" THE THEN EXISTING AND ALL FUTURE LISTS OF
GOVERNMENT EMPLOYEES OF THOSE WHOM CONGRESS DEEMED GUILTY OF
"SUBVERSIVE ACTIVITIES" AND THEREFORE "UNFIT" TO HOLD A FEDERAL JOB. 
WHAT WAS CHALLENGED, THEREFORE, IS A STATUTE WHICH, BECAUSE OF WHAT
CONGRESS THOUGHT TO BE THEIR POLITICAL BELIEFS, PROHIBITED RESPONDENTS
FROM EVER ENGAGING IN ANY GOVERNMENT WORK, EXCEPT AS JURORS OR
SOLDIERS.  RESPONDENTS CLAIMED THAT THEIR DISCHARGE WAS
UNCONSTITUTIONAL; THAT THEY CONSEQUENTLY RIGHTFULLY CONTINUED TO WORK
FOR THE GOVERNMENT AND THAT THE GOVERNMENT OWES THEM COMPENSATION FOR
SERVICES PERFORMED UNDER CONTRACTS OF EMPLOYMENT.  CONGRESS HAS
ESTABLISHED THE COURT OF CLAIMS TO TRY JUST SUCH CONTROVERSIES.  WHAT
IS INVOLVED HERE IS A CONGRESSIONAL PROSCRIPTION OF LOVETT, WATSON, AND
DODD, PROHIBITING THEIR EVER HOLDING A GOVERNMENT JOB.  WERE THIS CASE
TO BE NOT JUSTICIABLE, CONGRESSIONAL ACTION, AIMED AT THREE NAMED
INDIVIDUALS, WHICH STIGMATIZED THEIR REPUTATION AND SERIOUSLY IMPAIRED
THEIR CHANCE TO EARN A LIVING, COULD NEVER BE CHALLENGED IN ANY COURT. 
OUR CONSTITUTION DID NOT CONTEMPLATE SUCH A RESULT.  TO QUOTE ALEXANDER
HAMILTON, "...  A LIMITED CONSTITUTION  ...  (IS) ONE WHICH CONTAINS
CERTAIN SPECIFIED EXCEPTIONS TO THE LEGISLATIVE AUTHORITY; SUCH, FOR
INSTANCE, AS THAT IT SHALL PASS NO BILLS OF ATTAINDER, NO EX POST FACTO
LAWS, AND THE LIKE.  LIMITATIONS OF THIS KIND CAN BE PRESERVED IN
PRACTICE NO OTHER WAY THAN THROUGH THE MEDIUM OF THE COURTS OF JUSTICE;
WHOSE DUTY IT MUST BE TO DECLARE ALL ACTS CONTRARY TO THE MANIFEST
TENOR OF THE CONSTITUTION VOID.  WITHOUT THIS, ALL THE RESERVATIONS OF
PARTICULAR RIGHTS OR PRIVILEGES WOULD AMOUNT TO NOTHING."  FEDERALIST
PAPER NO. 78. 

                           II. 

WE HOLD THAT SEC. 304 FALLS PRECISELY WITHIN THE CATEGORY OF
CONGRESSIONAL ACTIONS WHICH THE CONSTITUTION BARRED BY PROVIDING THAT
"NO BILL OF ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED."  IN
CUMMINGS V. MISSOURI, 4 WALL.  277, 323, THIS COURT SAID, "A BILL OF
ATTAINDER IS A LEGISLATIVE ACT WHICH INFLICTS PUNISHMENT WITHOUT A
JUDICIAL TRIAL.  IF THE PUNISHMENT BE LESS THAN DEATH, THE ACT IS
TERMED A BILL OF PAINS AND PENALTIES.  WITHIN THE MEANING OF THE
CONSTITUTION, BILLS OF ATTAINDER INCLUDE BILLS OF PAINS AND
PENALTIES."  THE CUMMINGS DECISION INVOLVED A PROVISION OF THE MISSOURI
RECONSTRUCTION CONSTITUTION WHICH REQUIRED PERSONS TO TAKE AN OATH OF
LOYALTY AS A PREREQUISITE TO PRACTICING A PROFESSION.  CUMMINGS, A
CATHOLIC PRIEST, WAS CONVICTED FOR TEACHING AND PREACHING AS A MINISTER
WITHOUT TAKING THE OATH.  THE OATH REQUIRED AN APPLICANT TO AFFIRM THAT
HE HAD NEVER GIVEN AID OR COMFORT TO PERSONS ENGAGED IN HOSTILITY TO
THE UNITED STATES AND HAD NEVER "BEEN A MEMBER OF, OR CONNECTED WITH,
ANY ORDER, SOCIETY, OR ORGANIZATION, INIMICAL TO THE GOVERNMENT OF THE
UNITED STATES  ..."  IN AN ILLUMINATING OPINION WHICH GAVE THE
HISTORICAL BACKGROUND OF THE CONSTITUTIONAL PROHIBITION AGAINST BILLS
OF ATTAINDER, THIS COURT INVALIDATED THE MISSOURI CONSTITUTIONAL
PROVISION BOTH BECAUSE IT CONSTITUTED A BILL OF ATTAINDER AND BECAUSE
IT HAD AN EX POST FACTO OPERATION.  ON THE SAME DAY THE CUMMINGS CASE
WAS DECIDED, THE COURT, IN EX PARTE GARLAND, 4 WALL.  333, ALSO HELD
INVALID ON THE SAME GROUNDS AN ACT OF CONGRESS WHICH REQUIRED ATTORNEYS
PRACTICING BEFORE THIS COURT TO TAKE A SIMILAR OATH.  NEITHER OF THESE
CASES HAS EVER BEEN OVERRULED.  THEY STAND FOR THE PROPOSITION THAT
LEGISLATIVE ACTS, NO MATTER WHAT THEIR FORM, THAT APPLY EITHER TO NAMED
INDIVIDUALS OR TO EASILY ASCERTAINABLE MEMBERS OF A GROUP IN SUCH A WAY
AS TO INFLICT PUNISHMENT ON THEM WITHOUT A JUDICIAL TRIAL ARE BILLS OF
ATTAINDER PROHIBITED BY THE CONSTITUTION.  ADHERENCE TO THIS PRINCIPLE
REQUIRES INVALIDATION OF SEC. 304.  WE DO ADHERE TO IT. 

AS THE STATUTE IN THE TWO CASES MENTIONED, IT "OPERATES AS A
LEGISLATIVE DECREE OF PERPETUAL EXCLUSION" FROM A CHOSEN VOCATION.  EX
PARTE GARLAND, SUPRA, AT 377.  THIS PERMANENT PROSCRIPTION FROM ANY
OPPORTUNITY TO SERVE THE GOVERNMENT IS PUNISHMENT, AND OF A MOST SEVERE
TYPE.  IT IS A TYPE OF PUNISHMENT WHICH CONGRESS HAS ONLY INVOKED FOR
SPECIAL TYPES OF ODIOUS AND DANGEROUS CRIMES, SUCH AS TREASON, 18
U.S.C. 2; ACCEPTANCE OF BRIBES BY MEMBERS OF CONGRESS, 18 U.S.C. 199,
202, 203; OR BY OTHER GOVERNMENT OFFICIALS, 18 U.S.C. 207; AND
INTERFERENCE WITH ELECTIONS BY ARMY AND NAVY OFFICERS, 18 U.S.C. 58. 

INDIVIDUALS WITHOUT A JUDICIAL TRIAL.  THE FACT THAT THE PUNISHMENT IS
INFLICTED THROUGH THE INSTRUMENTALITY OF AN ACT SPECIFICALLY CUTTING
OFF THE PAY OF CERTAIN NAMED INDIVIDUALS FOUND GUILTY OF DISLOYALTY,
MAKES IT NO LESS GALLING OR EFFECTIVE THAN IF IT HAD BEEN DONE BY AN
ACT WHICH DESIGNATED THE CONDUCT AS CRIMINAL.  FN5  NO ONE WOULD THINK
THAT CONGRESS COULD HAVE PASSED A VALID LAW, STATING THAT AFTER
INVESTIGATION IT HAD FOUND LOVETT, DODD, AND WATSON "GUILTY" OF THE
CRIME OF ENGAGING IN "SUBVERSIVE ACTIVITIES," DEFINED THAT TERM FOR THE
FIRST TIME, AND SENTENCED THEM TO PERPETUAL EXCLUSION FROM ANY
GOVERNMENT EMPLOYMENT.  SECTION 304, WHILE IT DOES NOT USE THAT
LANGUAGE, ACCOMPLISHES THAT RESULT.  THE EFFECT WAS TO INFLICT
PUNISHMENT WITHOUT THE SAFEGUARDS OF A JUDICIAL TRIAL AND "DETERMINED
BY NO PREVIOUS LAW OR FIXED RULE."  FN6  THE CONSTITUTION DECLARES THAT
THAT CANNOT BE DONE EITHER BY A STATE OR BY THE UNITED STATES. 

THOSE WHO WROTE OUR CONSTITUTION WELL KNEW THE DANGER INHERENT IN
SPECIAL LEGISLATIVE ACTS WHICH TAKE AWAY THE LIFE, LIBERTY, OR PROPERTY
OF PARTICULAR NAMED PERSONS BECAUSE THE LEGISLATURE THINKS THEM GUILTY
OF CONDUCT WHICH DESERVES PUNISHMENT.  THEY INTENDED TO SAFEGUARD THE
PEOPLE OF THIS COUNTRY FROM PUNISHMENT WITHOUT TRIAL BY DULY
CONSTITUTED COURTS.  SEE DUNCAN V. KAHANAMOKU, 327 U.S. 304.  AND EVEN
THE COURTS TO WHICH THIS IMPORTANT FUNCTION WAS ENTRUSTED WERE
COMMANDED TO STAY THEIR HANDS UNTIL AND UNLESS CERTAIN TESTED
SAFEGUARDS WERE OBSERVED.  AN ACCUSED IN COURT MUST BE TRIED BY AN
IMPARTIAL JURY, HAS A RIGHT TO BE REPRESENTED BY COUNSEL, HE MUST BE
CLEARLY INFORMED OF THE CHARGE AGAINST HIM, THE LAW WHICH HE IS CHARGED
WITH VIOLATING MUST HAVE BEEN PASSED BEFORE HE COMMITTED THE ACT
CHARGED, HE MUST BE CONFRONTED BY THE WITNESSES AGAINST HIM, HE MUST
NOT BE COMPELLED TO INCRIMINATE HIMSELF, HE CANNOT TWICE BE PUT IN
JEOPARDY FOR THE SAME OFFENSE, AND EVEN AFTER CONVICTION NO CRUEL AND
UNUSUAL PUNISHMENT CAN BE INFLICTED UPON HIM.  SEE CHAMBERS V. FLORIDA,
309 U.S. 227, 235-238.  WHEN OUR CONSTITUTION AND BILL OF RIGHTS WERE
WRITTEN, OUR ANCESTORS HAD AMPLE REASON TO KNOW THAT LEGISLATIVE TRIALS
AND PUNISHMENTS WERE TOO DANGEROUS TO LIBERTY TO EXIST IN THE NATION OF
FREE MEN THEY ENVISIONED.  AND SO THEY PROSCRIBED BILLS OF ATTAINDER. 
CONGRESS VIOLATES THE CONSTITUTION, WE HAVE NO ALTERNATIVE HERE. 

COMPENSATION TO LOVETT, WATSON, AND DODD.  THE JUDGMENT IN THEIR FAVOR
IS AFFIRMED. 

FN1  SECTION 304 PROVIDES:  "NO PART OF ANY APPROPRIATION,
ALLOCATION, OR FUND (1) WHICH IS MADE AVAILABLE UNDER OR PURSUANT TO
THIS ACT, OR (2) WHICH IS NOW, OR WHICH IS HEREAFTER MADE, AVAILABLE
UNDER OR PURSUANT TO ANY OTHER ACT, TO ANY DEPARTMENT, AGENCY, OR
INSTRUMENTALITY OF THE UNITED STATES, SHALL BE USED, AFTER NOVEMBER 15,
1943, TO PAY ANY PART OF THE SALARY, OR OTHER COMPENSATION FOR THE
PERSONAL SERVICES, OF GOODWIN B. WATSON, WILLIAM E. DODD, JUNIOR, AND
ROBERT MORSS LOVETT, UNLESS PRIOR TO SUCH DATE SUCH PERSON HAS BEEN
APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE
SENATE:  PROVIDED, THAT THIS SECTION SHALL NOT OPERATE TO DEPRIVE ANY
SUCH PERSON OF PAYMENT FOR LEAVES OF ABSENCE OR SALARY, OR OF ANY
REFUND OR REIMBURSEMENT, WHICH HAVE ACCRUED PRIOR TO NOVEMBER 15, 1943:
PROVIDED FURTHER, THAT THIS SECTION SHALL NOT OPERATE TO DEPRIVE ANY
SUCH PERSON OF PAYMENT FOR SERVICES PERFORMED AS A MEMBER OF A JURY OR
AS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES NOR ANY BENEFIT,
PENSION, OR EMOLUMENT RESULTING THEREFROM." 

AS WE SHALL POINT OUT, THE PRESIDENT SIGNED THE BILL BECAUSE HE HAD
TO DO SO SINCE THE APPROPRIATED FUNDS WERE IMPERATIVELY NEEDED TO CARRY
ON THE WAR.  HE FELT, HOWEVER, THAT SEC. 304 OF THE BILL WAS
UNCONSTITUTIONAL, AND FAILED TO REAPPOINT RESPONDENTS. 

FN2  55 STAT. 92, SEC. 5; 55 STAT. 265, SEC. 504; 55 STAT. 303, SEC.
7; 55 STAT. 366, SEC. 10; 55 STAT. 408, SEC. 3; 55 STAT. 446, SEC. 5;
55 STAT. 466, SEC. 704; 55 STAT. 499, SEC. 10; HOUSE DOC. 833, 77TH
CONG., 2D SESS. 

FN3  "SUBVERSIVE ACTIVITY IN THIS COUNTRY DERIVES FROM CONDUCT
INTENTIONALLY DESTRUCTIVE OF OR INIMICAL TO THE GOVERNMENT OF THE
UNITED STATES - THAT WHICH SEEKS TO UNDERMINE ITS INSTITUTIONS, OR TO
DISTORT ITS FUNCTIONS, OR TO IMPEDE ITS PROJECTS, OR TO LESSEN ITS
EFFORTS, THE ULTIMATE END BEING TO OVERTURN IT ALL.  SUCH ACTIVITY MAY
BE OPEN AND DIRECT AS BY EFFORT TO OVERTHROW, OR SUBTLE AND INDIRECT AS
BY SABOTAGE."  H. REP. NO. 448, 78TH CONG., 1ST SESS., P. 5. 

FN4  THIS IS OF COURSE ONE OF THE USUAL CHARACTERISTICS OF BILLS OF
ATTAINDER.  SEE WOODDESON, LAW LECTURES:  A SYSTEMATICAL VIEW OF THE
LAWS OF ENGLAND (1792), NO. 41, 622. 

FN5  SEE CUMMINGS V. MISSOURI, SUPRA, 4 WALL.  AT 325, 329; SEE ALSO
FLETCHER V. PECK, 6 CRANCH 87, 138-139; BURGESS V. SALMON, 97 U.S. 381,
385. 

FN6  SEE DISSENT OF MR. JUSTICE MILLER IN CUMMINGS V. MISSOURI,
SUPRA, 4 WALL.  AT 388; SEE ALSO WOODDESON, SUPRA, AT 624, 638 ET SEQ.
THEY ARE SET OUT BY JUSTICE MILLER'S DISSENT, EXCEPT THE CORRUPTION OF
BLOOD.  4 WALL.  AT 387.  THE AMERICAN PRECEDENTS DO NOT CONSIDER
CORRUPTION OF BLOOD A NECESSARY ELEMENT.  ORIGINALLY A JUDGMENT OF
DEATH WAS NECESSARY TO ATTAINT AND THE CONSEQUENCES OF ATTAINDER WERE
FORFEITURE AND CORRUPTION OF BLOOD.  COKE, FIRST INSTITUTE (ON
LITTLETON)(THOMAS ED. 1818) VOL. III, 559, 563, 565.  IF THE JUDGMENT
WAS LESSER PUNISHMENT THAN DEATH, THERE WAS NO ATTAINT AND THE BILL WAS
ONE OF PAINS AND PENALTIES.  PRACTICALLY ALL THE AMERICAN PRECEDENTS
ARE BILLS OF PAINS AND PENALTIES.  SEE THOMPSON, ANTI-LOYALIST
LEGISLATION DURING THE AMERICAN REVOLUTION (1908) 3 ILL. L. REV. 81,
153 ET PASSIM; JOHN C. HAMILTON, HISTORY OF THE REPUBLIC OF THE UNITED
STATES (1859) VOL. III, 23-40.  THE CONSTITUTION IN PROHIBITING BILLS
OF ATTAINDER UNDOUBTEDLY INCLUDED BILLS OF PAINS AND PENALTIES, AS THE
MAJORITY IN THE CUMMINGS CASE HELD. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE REED JOINS, CONCURRING. 

NOTHING WOULD BE EASIER THAN PERSONAL CONDEMNATION OF THE PROVISION
OF THE URGENT DEFICIENCY APPROPRIATION ACT OF 1943 HERE CHALLENGED. 
SEC. 304, 57 STAT. 431, 450.  FN1  BUT THE JUDICIAL FUNCTION EXACTS
CONSIDERATIONS VERY DIFFERENT FROM THOSE WHICH MAY DETERMINE A VOTE IN
CONGRESS FOR OR AGAINST A MEASURE.  AND WHAT MAY BE DECISIVE FOR A
PRESIDENTIAL DISAPPROVAL MAY NOT AT ALL SATISFY THE ESTABLISHED
CRITERIA WHICH ALONE JUSTIFY THIS COURT'S STRIKING DOWN AN ACT OF
CONGRESS. 

IT IS NOT FOR US TO FIND UNCONSTITUTIONALITY IN WHAT CONGRESS ENACTED
ALTHOUGH IT MAY IMPLY NOTIONS THAT ARE ABHORRENT TO US AS INDIVIDUALS
OR POLICIES WE DEEM HARMFUL TO THE COUNTRY'S WELL-BEING.  ALTHOUGH IT
WAS PROPOSED AT THE CONSTITUTIONAL CONVENTION TO HAVE THIS COURT SHARE
IN THE LEGISLATIVE PROCESS, THE FRAMERS SAW FIT TO EXCLUDE IT.  AND SO
"IT MUST BE REMEMBERED THAT LEGISLATURES ARE ULTIMATE GUARDIANS OF THE
LIBERTIES AND WELFARE OF THE PEOPLE IN QUITE AS GREAT A DEGREE AS THE
COURTS."  MISSOURI, K. & T.R. CO. V. MAY, 194 U.S. 267, 270.  THIS
ADMONITION WAS UTTERED BY MR. JUSTICE HOLMES IN ONE OF HIS EARLIEST
OPINIONS AND IT NEEDS TO BE RECALLED WHENEVER AN EXCEPTIONALLY
OFFENSIVE ENACTMENT TEMPTS THE COURT BEYOND ITS STRICT CONFINEMENTS. 

NOT TO EXERCISE BY INDIRECTION AUTHORITY WHICH THE CONSTITUTION
DENIED TO THIS COURT CALLS FOR THE SEVEREST INTELLECTUAL DETACHMENT AND
THE MOST ALERT SELF-RESTRAINT.  THE SCRUPULOUS OBSERVANCE, WITH SOME
DEVIATIONS, OF THE PROFESSED LIMITS OF THIS COURT'S POWER TO STRIKE
DOWN LEGISLATION HAS BEEN, PERHAPS, THE ONE QUALITY THE GREAT JUDGES OF
THE COURT HAVE HAD IN COMMON.  PARTICULARLY WHEN CONGRESSIONAL
LEGISLATION IS UNDER SCRUTINY, EVERY RATIONAL TRAIL MUST BE PURSUED TO
PREVENT COLLISION BETWEEN CONGRESS AND COURT.  FOR CONGRESS CAN READILY
MEND ITS WAYS, OR THE PEOPLE MAY EXPRESS DISAPPROVAL BY CHOOSING
DIFFERENT REPRESENTATIVES.  BUT A DECREE OF UNCONSTITUTIONALITY BY THIS
COURT IS FRAUGHT WITH CONSEQUENCES SO ENDURING AND FAR-REACHING AS TO
BE AVOIDED UNLESS NO CHOICE IS LEFT IN REASON. 

THE INCLUSION OF SEC. 304 IN THE APPROPRIATION BILL UNDOUBTEDLY
RAISES SERIOUS CONSTITUTIONAL QUESTIONS.  BUT THE MOST FUNDAMENTAL
PRINCIPLE OF CONSTITUTIONAL ADJUDICATION IS NOT TO FACE CONSTITUTIONAL
QUESTIONS BUT TO AVOID THEM, IF AT ALL POSSIBLE.  AND SO THE "COURT
DEVELOPED, FOR ITS OWN GOVERNANCE IN THE CASES CONFESSEDLY WITHIN ITS
JURISDICTION, A SERIES OF RULES UNDER WHICH IT HAS AVOIDED PASSING UPON
A LARGE PART OF ALL THE CONSTITUTIONAL QUESTIONS PRESSED UPON IT FOR
DECISION."  BRANDEIS, J., CONCURRING, IN ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 341, AT 346.  THAT A PIECE OF LEGISLATION
UNDER SCRUTINY MAY BE WIDELY UNPOPULAR IS AS IRRELEVANT TO THE
OBSERVANCE OF THESE RULES FOR ABSTENTION FROM AVOIDABLE ADJUDICATIONS
AS THAT IT IS WIDELY POPULAR.  SOME OF THESE RULES MAY WELL APPEAR OVER
REFINED OR EVASIVE TO THE LAITY.  BUT THEY HAVE THE SUPPORT NOT ONLY OF
THE PROFOUNDEST WISDOM.  THEY HAVE BEEN VINDICATED, IN CONSPICUOUS
INSTANCES OF DISREGARD, BY THE MOST PAINFUL LESSONS OF OUR
CONSTITUTIONAL HISTORY. 

SUCH ARE THE GUIDING CONSIDERATIONS ENJOINED BY CONSTITUTIONAL
PRINCIPLES AND THE BEST PRACTICE FOR DEALING WITH THE VARIOUS CLAIMS OF
UNCONSTITUTIONALITY SO ABLY PRESSED UPON US AT THE BAR. 

THE COURT READS SEC. 304 AS THOUGH IT EXPRESSLY DISCHARGED
RESPONDENTS FROM OFFICE WHICH THEY HELD AND PROHIBITED THEM FROM
HOLDING ANY OFFICE UNDER THE GOVERNMENT IN THE FUTURE.  ON THE BASIS OF
THIS READING THE COURT HOLDS THAT THE PROVISION IS A BILL OF ATTAINDER
IN THAT IT "INFLICTS PUNISHMENT WITHOUT A JUDICIAL TRIAL," CUMMINGS V.
MISSOURI, 4 WALL.  277, 323, AND IS THEREFORE FORBIDDEN BY ARTICLE I,
SEC. 9 OF THE CONSTITUTION.  CONGRESS IS SAID TO HAVE INFLICTED THIS
PUNISHMENT UPON RESPONDENTS BECAUSE IT DISAPPROVED THE BELIEFS THEY
WERE THOUGHT TO HOLD.  SUCH A COLLOQUIAL TREATMENT OF THE STATUTE
NEGLECTS THE RELEVANT CANONS OF CONSTITUTIONAL ADJUDICATION AND
DISREGARDS THOSE FEATURES OF THE LEGISLATION WHICH CALL ITS VALIDITY
INTO QUESTION ON GROUNDS OTHER THAN INCONSISTENCY WITH THE PROHIBITION
AGAINST BILLS OF ATTAINDER.  TO CHARACTERIZE AN ACT OF CONGRESS AS A
BILL OF ATTAINDER READILY ENLISTS, HOWEVER, THE INSTINCTS OF A FREE
PEOPLE WHO ARE COMMITTED TO A FAIR JUDICIAL PROCESS FOR THE
DETERMINATION OF ISSUES AFFECTING LIFE, LIBERTY, OR PROPERTY AND
NATURALLY ABHOR ANYTHING THAT RESEMBLES LEGISLATIVE DETERMINATION OF
GUILT AND LEGISLATIVE PUNISHMENT.  AS I SEE IT, OUR DUTY PRECLUDES
READING SEC. 304 AS THE COURT READS IT. BUT EVEN IF IT WERE TO BE SO
READ THE PROVISION IS NOT WITHIN THE CONSTITUTIONAL CONCEPTION OF A
BILL OF ATTAINDER. 

BROADLY SPEAKING, TWO TYPES OF CONSTITUTIONAL CLAIMS COME BEFORE THIS
COURT.  MOST CONSTITUTIONAL ISSUES DERIVE FROM THE BROAD STANDARDS OF
FAIRNESS WRITTEN INTO THE CONSTITUTION (E.G. "DUE PROCESS," "EQUAL
PROTECTION OF THE LAWS," "JUST COMPENSATION"), AND THE DIVISION OF
POWER AS BETWEEN STATES AND NATION.  SUCH QUESTIONS, BY THEIR VERY
NATURE, ALLOW A RELATIVELY WIDE PLAY FOR INDIVIDUAL LEGAL JUDGMENT. 
THE OTHER CLASS GIVES NO SUCH SCOPE.  FOR THIS SECOND CLASS OF
CONSTITUTIONAL ISSUES DERIVES FROM VERY SPECIFIC PROVISIONS OF THE
CONSTITUTION.  THESE HAD THEIR SOURCE IN DEFINITE GRIEVANCES AND LED
THE FATHERS TO PROSCRIBE AGAINST RECURRENCE OF THEIR EXPERIENCE.  THESE
SPECIFIC GRIEVANCES AND THE SAFEGUARDS AGAINST THEIR RECURRENCE WERE
NOT DEFINED BY THE CONSTITUTION.  THEY WERE DEFINED BY HISTORY.  THEIR
MEANING WAS SO SETTLED BY HISTORY THAT DEFINITION WAS SUPERFLUOUS. 
JUDICIAL ENFORCEMENT OF THE CONSTITUTION MUST RESPECT THESE HISTORIC
LIMITS. 

THE PROHIBITION OF BILLS OF ATTAINDER FALLS OF COURSE AMONG THESE
VERY SPECIFIC CONSTITUTIONAL PROVISIONS.  THE DISTINGUISHING
CHARACTERISTIC OF A BILL OF ATTAINDER IS THE SUBSTITUTION OF
LEGISLATIVE DETERMINATION OF GUILT AND LEGISLATIVE IMPOSITION OF
PUNISHMENT FOR JUDICIAL FINDING AND SENTENCE.  "A BILL OF ATTAINDER, BY
THE COMMON LAW, AS OUR FATHERS IMPORTED IT FROM ENGLAND AND PRACTISED
IT THEMSELVES, BEFORE THE ADOPTION OF THE CONSTITUTION, WAS AN ACT OF
SOVEREIGN POWER, IN THE FORM OF A SPECIAL STATUTE  ...  BY WHICH A MAN
WAS PRONOUNCED GUILTY OR ATTAINTED OF SOME CRIME, AND PUNISHED BY
DEPRIVATION OF HIS VESTED RIGHTS, WITHOUT TRIAL OR JUDGMENT PER LEGEM
TERRAE."  FARRAR, MANUAL OF THE CONSTITUTION (1867) 419.  AND SEE 2
STORY, COMMENTARIES ON THE CONSTITUTION (5TH ED., 1891) 216; 1 COOLEY,
CONSTITUTIONAL LIMITATIONS (8TH ED., 1927) 536.  IT WAS THIS VERY
SPECIAL, NARROWLY RESTRICTED, INTERVENTION BY THE LEGISLATURE, IN
MATTERS FOR WHICH A DECENT REGARD FOR MEN'S INTERESTS INDICATED A
JUDICIAL TRIAL, THAT THE CONSTITUTION PROHIBITED.  IT MUST BE RECALLED
THAT THE CONSTITUTION WAS FRAMED IN AN ERA WHEN DISPENSING JUSTICE WAS
A WELL-ESTABLISHED FUNCTION OF THE LEGISLATURE.  THE PROHIBITION
AGAINST BILLS OF ATTAINDER MUST BE VIEWED IN THE BACKGROUND OF THE
HISTORIC SITUATION WHEN MOVES IN SPECIFIC LITIGATION THAT ARE NOW THE
CONVENTIONAL AND, FOR THE MOST PART, THE EXCLUSIVE CONCERN OF COURTS
WERE COMMONPLACE LEGISLATIVE PRACTICES.  SEE CALDER V. BULL, 3 DALL. 
386; WILKINSON V. LELAND, 2 PET. 627, 660; BALTIMORE & SUSQUEHANNA R.
CO. V. NESBIT, 10 HOW.  395; POUND, JUSTICE ACCORDING TO LAW, II (1914)
14 COL. L. REV. 1-12; WOODRUFF, CHANCERY IN MASSACHUSETTS (1889) 5 L.Q.
REV. 370.  CF. SINKING-FUND CASES, 99 U.S. 700.  BILLS OF ATTAINDER
WERE PART OF WHAT NOW ARE STAPLE JUDICIAL FUNCTIONS WHICH LEGISLATURES
THEN EXERCISED.  IT WAS THIS PART OF THEIR RECONGNIZED AUTHORITY WHICH
THE CONSTITUTION PROHIBITED WHEN IT PROVIDED THAT "NO BILL OF ATTAINDER
...  SHALL BE PASSED."  SECTION 304 LACKS THE CHARACTERISTICS OF THE
ENACTMENTS IN THE STATUTES OF THE REALM AND THE COLONIAL LAWS THAT BEAR
THE HALLMARKS OF BILLS OF ATTAINDER. 

ALL BILLS OF ATTAINDER SPECIFY THE OFFENSE FOR WHICH THE ATTAINTED
PERSON WAS DEEMED GUILTY AND FOR WHICH THE PUNISHMENT WAS IMPOSED. 
THERE WAS ALWAYS A DECLARATION OF GUILT EITHER OF THE INDIVIDUAL OR THE
CLASS TO WHICH HE BELONGED.  THE OFFENSE MIGHT BE A PRE-EXISTING CRIME
OR AN ACT MADE PUNISHABLE EX POST FACTO.  FREQUENTLY A BILL OF
ATTAINDER WAS THUS DOUBLY OBJECTIONABLE BECAUSE OF ITS EX POST FACTO
FEATURES.  THIS IS THE HISTORIC EXPLANATION FOR UNITING THE TWO
MISCHIEFS IN ONE CLAUSE - "NO BILL OF ATTAINDER OR EX POST FACTO LAW
SHALL BE PASSED."  NO ONE CLAIMS THAT SEC. 304 IS AN EX POST FACTO
LAW.  IF IT IS IN SUBSTANCE A PUNISHMENT FOR ACTS DEEMED "SUBVERSIVE"
(THE STATUTE, OF COURSE, MAKES NO SUCH CHARGE) FOR WHICH NO PUNISHMENT
HAD PREVIOUSLY BEEN PROVIDED, IT WOULD CLEARLY BE EX POST FACTO. 
THEREFORE, IF SEC. 304 IS A BILL OF ATTAINDER IT IS ALSO AN EX POST
FACTO LAW.  BUT IF IT IS NOT AN EX POST FACTO LAW, THE REASONS THAT
ESTABLISH THAT IT IS NOT ARE PERSUASIVE THAT IT CANNOT BE A BILL OF
ATTAINDER.  NO OFFENSE IS SPECIFIED AND NO DECLARATION OF GUILT IS
MADE.  WHEN THE FRAMERS OF THE CONSTITUTION PROSCRIBED BILLS OF
ATTAINDER, THEY REFERRED TO A FORM OF LAW WHICH HAD BEEN PREVALENT IN
MONARCHICAL ENGLAND AND WAS EMPLOYED IN THE COLONIES.  THEY WERE
FAMILIAR WITH ITS NATURE; THEY HAD EXPERIENCED ITS USE; THEY KNEW WHAT
THEY WANTED TO PREVENT.  IT WAS NOT A LAW UNFAIR IN GENERAL, EVEN
UNFAIR BECAUSE AFFECTING MERELY PARTICULAR INDIVIDUALS, THAT THEY
OUTLAWED BY THE EXPLICITNESS OF THEIR PROHIBITION OF BILLS OF
ATTAINDER.  "UPON THIS POINT A PAGE OF HISTORY IS WORTH A VOLUME OF
LOGIC."  NEW YORK TRUST CO. V. EISNER, 256 U.S. 345, 349.  NOR SHOULD
RESENTMENT AGAINST AN INJUSTICE DISPLACE CONTROLLING HISTORY IN
JUDICIAL CONSTRUCTION OF THE CONSTITUTION. 

NOT ONLY DOES SEC. 304 LACK THE ESSENTIAL DECLARATION OF GUILT.  IT
LIKEWISE LACKS THE IMPOSITION OF PUNISHMENT IN THE SENSE APPROPRIATE
FOR BILLS OF ATTAINDER.  THE PUNISHMENT IMPOSED BY THE MOST DREADED
BILL OF ATTAINDER WAS OF COURSE DEATH; LESSER PUNISHMENTS WERE IMPOSED
BY SIMILAR BILLS MORE TECHNICALLY CALLED BILLS OF PAINS AND PENALTIES. 
THE CONSTITUTION OUTLAWS THIS ENTIRE CATEGORY OF PUNITIVE MEASURES. 
FLETCHER V. PECK, 6 CRANCH 87, 138; CUMMINGS V. MISSOURI, 4 WALL. 
277.  THE AMOUNT OF PUNISHMENT IS IMMATERIAL TO THE CLASSIFICATION OF A
CHALLENGED STATUTE.  BUT PUNISHMENT IS A PREREQUISITE. 

PUNISHMENT PRESUPPOSES AN OFFENSE, NOT NECESSARILY AN ACT PREVIOUSLY
DECLARED CRIMINAL, BUT AN ACT FOR WHICH RETRIBUTION IS EXACTED.  THE
FACT THAT HARM IS INFLICTED BY GOVERNMENTAL AUTHORITY DOES NOT MAKE IT
PUNISHMENT.  FIGURATIVELY SPEAKING ALL DISCOMFORTING ACTION MAY BE
DEEMED PUNISHMENT BECAUSE IT DEPRIVES OF WHAT OTHERWISE WOULD BE
ENJOYED.  BUT THERE MAY BE REASONS OTHER THAN PUNITIVE FOR SUCH
DEPRIVATION.  A MAN MAY BE FORBIDDEN TO PRACTICE MEDICINE BECAUSE HE
HAS BEEN CONVICTED OF A FELONY, HAWKER V. NEW YROK, 170 U.S. 189, OR
BECAUSE HE IS NO LONGER QUALIFIED, DENT V. WEST VIRGINIA, 129 U.S.
114.  "THE DEPRIVATION OF ANY RIGHTS, CIVIL OR POLITICAL, PREVIOUSLY
ENJOYED, MAY BE PUNISHMENT, THE CIRCUMSTANCES ATTENDING AND THE CAUSES
OF THE DEPRIVATION DETERMINING THIS FACT."  CUMMINGS V. MISSOURI, 4
WALL.  277, 320. 

IS IT CLEAR THEN THAT THE RESPONDENTS WERE REMOVED FROM OFFICE, STILL
ACCEPTING THE COURT'S READING OF THE STATUTE, AS A PUNISHMENT FOR PAST
ACTS?  IS IT CLEAR, THAT IS, TO THAT DEGREE OF CERTITUDE WHICH IS
REQUIRED BEFORE THIS COURT DECLARES LEGISLATION BY CONGRESS
UNCONSTITUTIONAL?  THE DISPUTED SECTION DOES NOT SAY SO.  SO FAR AS THE
HOUSE OF REPRESENTATIVES IS CONCERNED, THE KERR COMMITTEE, WHICH
PROPOSED THE MEASURE, AND MANY OF THOSE WHO VOTED IN FAVOR OF THE BILL
(ASSUMING IT IS APPROPRIATE TO GO BEHIND THE TERMS OF A STATUTE TO
ASCERTAIN THE UNEXPRESSED MOTIVE OF ITS MEMBERS), NO DOUBT CONSIDERED
THE RESPONDENTS "SUBVERSIVE" AND WISHED TO EXCLUDE THEM FROM THE
GOVERNMENT BECAUSE OF THEIR PAST ASSOCIATIONS AND THEIR PRESENT VIEWS. 
BUT THE LEGISLATION UPON WHICH WE NOW PASS JUDGMENT IS THE PRODUCT OF
BOTH HOUSES OF CONGRESS AND THE PRESIDENT.  THE SENATE FIVE TIMES
REJECTED THE SUBSTANCE OF SEC. 304.  IT FINALLY PREVAILED, NOT BECAUSE
THE SENATE JOINED IN AN UNEXPRESSED DECLARATION OF GUILT AND
RETRIBUTION FOR IT, BUT BECAUSE THE PROVISION WAS INCLUDED IN AN
IMPORTANT APPROPRIATION BILL.  THE STIFFEST INTERPRETATION THAT CAN BE
PLACED UPON THE SENATE'S ACTION IS THAT IT AGREED TO REMOVE THE
RESPONDENTS FROM OFFICE (STILL ASSUMING THE COURT'S INTERPRETATION OF
SEC. 304) WITHOUT PASSING ANY JUDGMENT ON THEIR PAST CONDUCT OR PRESENT
VIEWS. 

ALLOWING IT TO BECOME LAW IS FREE FROM DOUBT.  HE REJECTED THE NOTION
THAT THE RESPONDENTS WERE "SUBVERSIVE," AND EXPLICITLY STATED THAT HE
WISHED TO RETAIN THEM IN THE SERVICE OF THE GOVERNMENT.  H. DOC. NO.
264, 78TH CONG., 1ST SESS.  HISTORICALLY, PARLIAMENT PASSED BILLS OF
ATTAINDER AT THE BEHEST OF THE MONARCH.  SEE ADAMS, CONSTITUTIONAL
HISTORY OF ENGLAND (REV. ED., 1935) 228-29.  THE CONSTITUTION, OF
COURSE, PROVIDES FOR THE ENACTMENT OF LEGISLATION EVEN AGAINST
DISAPPROVAL BY THE EXECUTIVE.  BUT TO HOLD THAT A MEASURE WHICH DID NOT
EXPRESS A JUDGMENT OF CONDEMNATION BY THE SENATE AND CARRIED AN
AFFIRMATIVE DISAVOWAL OF SUCH CONDEMNATION BY THE PRESIDENT CONSTITUTES
A BILL OF ATTAINDER, DISREGARDS THE HISTORIC TESTS FOR DETERMINING WHAT
IS A BILL OF ATTAINDER.  AT THE LEAST, THERE ARE SUCH SERIOUS
OBJECTIONS TO FINDING SEC. 304 A BILL OF ATTAINDER THAT IT CAN BE
DECLARED UNCONSTITUTIONAL ONLY BY A FAILURE TO OBSERVE THAT THIS COURT
REACHES CONSTITUTIONAL INVALIDATION ONLY THROUGH INESCAPABLE
NECESSITY.  "IT MUST BE EVIDENT TO ANYONE THAT THE POWER TO DECLARE A
LEGISLATIVE ENACTMENT VOID IS ONE WHICH THE JUDGE, CONSCIOUS OF THE
FALLIBILITY OF THE HUMAN JUDGMENT, WILL SHRINK FROM EXERCISING IN ANY
CASE WHERE HE CAN CONSCIENTIOUSLY AND WITH DUE REGARD TO DUTY AND
OFFICIAL OATH DECLINE THE RESPONSIBILITY."  1 COOLEY, CONSTITUTIONAL
LIMITATIONS (8TH ED., 1927) 332. 

BUT EVEN IF IT BE AGREED, FOR PURPOSES OF CHARACTERIZING THE
DEPRIVATION OF THE STATUTE AS PUNISHMENT, THAT THE MOTIVE OF CONGRESS
WAS PAST ACTION OF THE RESPONDENTS, PRESUMED MOTIVE CANNOT SUPPLANT
EXPRESSED LEGISLATIVE JUDGMENT.  "THE EXPECTATIONS OF THOSE WHO SOUGHT
THE ENACTMENT OF LEGISLATION MAY NOT BE USED FOR THE PURPOSE OF
AFFIXING TO LEGISLATION WHEN ENACTED A MEANING WHICH IT DOES NOT
EXPRESS."  UNITED STATES V. GOELET, 232 U.S. 293, 298.  CONGRESS
OMITTED FROM SEC. 304 ANY CONDEMNATION FOR WHICH THE PRESUMED
PUNISHMENT WAS A SANCTION.  THEREBY IT NEGATIVED THE ESSENTIAL NOTION
OF A BILL OF ATTAINDER.  IT MAY BE SAID THAT SUCH A VIEW OF A BILL OF
ATTAINDER OFFERS CONGRESS TOO EASY A MODE OF EVADING THE PROHIBITION OF
THE CONSTITUTION.  CONGRESS NEED MERELY OMIT ITS GROUND OF CONDEMNATION
AND LEGISLATE THE PENALTY.  BUT THE PROHIBITION AGAINST A "BILL OF
ATTAINDER" IS ONLY ONE OF THE SAFEGUARDS OF LIBERTY IN THE ARSENAL OF
THE CONSTITUTION.  THERE ARE OTHER PROVISIONS IN THE CONSTITUTION,
SPECIFIC AND COMPREHENSIVE, EFFECTIVELY DESIGNED TO ASSURE THE
LIBERTIES OF OUR CITIZENS.  THE RESTRICTIVE FUNCTION OF THIS CLAUSE
AGAINST BILLS OF ATTAINDER WAS TO TAKE FROM THE LEGISLATURE A JUDICIAL
FUNCTION WHICH THE LEGISLATURE ONCE POSSESSED.  IF CONGRESS ADOPTED, AS
IT DID, A FORM OF STATUTE SO LACKING IN ANY PRETENSION TO THE VERY
QUALITY WHICH GAVE A BILL OF ATTAINDER ITS SIGNIFICANCE, THAT OF A
DECLARATION OF GUILT UNDER CIRCUMSTANCES WHICH MADE ITS DETERMINATION
GROSSLY UNFAIR, IT SIMPLY PASSED AN ACT WHICH THIS COURT OUGHT NOT TO
DENOUNCE AS A BILL OF ATTAINDER.  AND NOT THE LESS SO BECAUSE CONGRESS
MAY HAVE BEEN CONSCIOUS OF THE LIMITATIONS WHICH THE CONSTITUTION HAS
PLACED UPON IT AGAINST PASSING BILLS OF ATTAINDER.  IF CONGRESS CHOOSES
TO SAY THAT MEN SHALL NOT BE PAID, OR EVEN THAT THEY SHALL BE REMOVED
FROM THEIR JOBS, WE CANNOT DECIDE THAT CONGRESS ALSO SAID THAT THEY ARE
GUILTY OF AN OFFENSE.  AND PARTICULARLY WE CANNOT SO DECIDE AS A
NECESSARY ASSUMPTION FOR DECLARING AN ACT OF CONGRESS INVALID. 
CONGRESS HAS NOT LEGISLATED THAT WHICH IS ATTRIBUTED TO IT, FOR THE
SIMPLE FACT IS THAT CONGRESS HAS SAID NOTHING.  THE WORDS CONGRESS USED
ARE NOT SUSCEPTIBLE OF BEING READ AS A LEGISLATIVE VERDICT OF GUILT
AGAINST THE RESPONDENTS NO MATTER WHAT DICTIONARY, OR WHAT FORM OF
ARGUMENTATION, WE USE AS AIDS. 

THIS ANALYSIS ACCORDS WITH OUR PRIOR COURSE OF DECISION.  IN CUMMINGS
V. MISSOURI, SUPRA, AND EX PARTE GARLAND, 4 WALL.  333, THE COURT DEALT
WITH LEGISLATION OF VERY DIFFERENT SCOPE AND SIGNIFICANCE FROM THAT NOW
BEFORE US.  WHILE THE PROVISIONS INVOLVED IN THOSE CASES DID NOT
CONDEMN OR PUNISH SPECIFIC PERSONS BY NAME, THEY PROSCRIBED ALL GUILTY
OF DESIGNATED OFFENSES.  REFUSAL TO TAKE A PRESCRIBED OATH OPERATED AS
AN ADMISSION OF GUILT AND AUTOMATICALLY RESULTED IN THE DISQUALIFYING
PUNISHMENT.  AVOIDANCE OF LEGISLATIVE PROSCRIPTION FOR GUILT UNDER THE
PROVISIONS IN THE CUMMINGS AND GARLAND CASES REQUIRED POSITIVE
EXCULPATION.  THAT THE PERSONS LEGISLATIVELY PUNISHED WERE NOT NAMED
WAS A MERE DETAIL OF IDENTIFICATION.  CONGRESS AND THE MISSOURI
LEGISLATURE, RESPECTIVELY, HAD PROVIDED THE MOST EFFECTIVE METHOD FOR
INSURING IDENTIFICATION.  THESE ENACTMENTS FOLLOWED THE EXAMPLE OF
ENGLISH BILLS OF ATTAINDER WHICH CONDEMNED A NAMED PERSON AND "HIS
ADHERENTS."  SECTION 304 PRESENTS A SITUATION WHOLLY OUTSIDE THE
INGREDIENTS OF THE ENACTMENTS THAT FURNISHED THE BASIS FOR THE CUMMINGS
AND GARLAND DECISIONS.  FN2 

WHILE SEC. 304 IS NOT A BILL OF ATTAINDER, AS THE GLOSS OF HISTORY
DEFINES THAT PHRASE IN THE CONSTITUTION, ACCEPTANCE OF THE COURT'S
READING OF SEC. 304 WOULD RAISE OTHER SERIOUS CONSTITUTIONAL
QUESTIONS.  THE FIRST IN MAGNITUDE AND DIFFICULTY DERIVES FROM THE
CONSTITUTIONAL DISTRIBUTION OF POWER OVER REMOVAL.  FOR ABOUT A CENTURY
THIS COURT ASTUTELY AVOIDED ADJUDICATION OF THE POWER OF CONTROL AS
BETWEEN CONGRESS AND THE EXECUTIVE OF THOSE SERVING IN THE EXECUTIVE
BRANCH OF THE GOVERNMENT "UNTIL IT SHOULD BE INEVITABLY PRESENTED." 
MYERS V. UNITED STATES, 272 U.S. 52, 173.  THE COURT THEN GAVE THE
FULLEST CONSIDERATION TO THE PROBLEM.  THE CASE WAS TWICE ARGUED AND
WAS UNDER CONSIDERATION FOR NEARLY THREE YEARS.  SO FAR AS THE ISSUES
COULD BE FORESEEN THEY WERE ELABORATELY DEALT WITH IN OPINIONS
AGGREGATING NEARLY TWO HUNDRED PAGES.  WITHIN LESS THAN A DECADE AN
OPINION OF FIFTEEN PAGES LARGELY QUALIFIED WHAT THE MYERS CASE HAD
APPARENTLY SO VOLUMINOUSLY SETTLED.  HUMPHREY'S EXECUTOR V. UNITED
STATES, 295 U.S. 602.  THIS EXPERIENCE SERVES AS A POWERFUL REMINDER OF
THE COURT'S DUTY SO TO DEAL WITH CONGRESSIONAL ENACTMENTS AS TO AVOID
THEIR INVALIDATION UNLESS A ROAD TO ANY OTHER DECISION IS BARRED. 

THE OTHER SERIOUS PROBLEM THE COURT'S INTERPRETATION OF SEC. 304
RAISES IS THAT OF DUE PROCESS.  IN ONE ASPECT THIS IS ANOTHER PHASE OF
THE CONSTITUTIONAL ISSUE OF THE REMOVAL POWER.  FOR, IF SEC. 304 IS TO
BE CONSTRUED AS A REMOVAL FROM OFFICE, IT CANNOT BE DETERMINED WHETHER
SINGLING OUT THREE GOVERNMENT EMPLOYEES FOR REMOVAL VIOLATED THE FIFTH
AMENDMENT UNTIL IT IS DECIDED WHETHER CONGRESS HAS A REMOVAL POWER AT
ALL OVER SUCH EMPLOYEES AND HOW EXTENSIVE IT IS.  EVEN IF THE STATUTE
BE READ AS A MERE STOPPAGE OF DISBURSEMENT, THE QUESTION ARISES WHETHER
CONGRESS CAN TREAT THREE EMPLOYEES OF THE GOVERNMENT DIFFERENTLY FROM
ALL OTHERS.  BUT THAT QUESTION WE DO NOT HAVE TO ANSWER.  IN ANY EVENT,
RESPONDENTS ARE ENTITLED TO RECOVER IN THIS SUIT AND THEIR REMEDY - A
SUIT IN THE COURT OF CLAIMS - IS THE SAME WHATEVER VIEW ONE TAKES OF
THE LEGAL SIGNIFICANCE OF SEC. 304.  TO BE SURE, SEC. 304 ALSO PURPORTS
TO PRESCRIBE CONDITIONS RELATING TO FUTURE EMPLOYMENT OF RESPONDENTS BY
THE GOVERNMENT.  THIS TOO IS A QUESTION NOT NOW OPEN FOR DECISION. 
REEMPLOYMENT BY ANY AGENCY OF THE GOVERNMENT, OR THE DESIRE FOR
REEMPLOYMENT, IS NOT NOW IN CONTROVERSY, "AND CONSEQUENTLY THE SUBJECT
MAY WELL BE POSTPONED UNTIL IT ACTUALLY ARISES FOR DECISION."  WILSON
V. NEW, 243 U.S. 332, 354.  THE "GREAT GRAVITY AND DELICACY" OF THIS
COURT'S FUNCTION IN PASSING UPON THE VALIDITY OF AN ACT OF CONGRESS IS
CALLED INTO ACTION ONLY WHEN ABSOLUTELY NECESSARY.  STEAMSHIP CO. V.
EMIGRATION COMMISSIONERS, 113 U.S. 33, 39.  IT SHOULD NOT BE EXERCISED
ON THE BASIS OF IMAGINARY AND NON-EXISTENT FACTS.  SEE BRANDEIS, J.,
CONCURRING, IN ASHWANDER V. TENNESSEE VALLEY AUTHORITY, SUPRA, AT 338
45. 

SINCE IT IS APPARENT THAT GRAVE CONSTITUTIONAL DOUBTS WILL ARISE IF
WE ADOPT THE CONSTRUCTION THE COURT PUTS ON SEC. 304, WE OUGHT TO
FOLLOW THE PRACTICE WHICH THIS COURT HAS ESTABLISHED FROM THE TIME OF
CHIEF JUSTICE MARSHALL.  THE APPROACH APPROPRIATE TO SUCH A CASE AS THE
ONE BEFORE US WAS THUS SUMMARIZED BY MR. JUSTICE HOLMES IN A SIMILAR
SITUATION:  "...  THE RULE IS SETTLED THAT AS BETWEEN TWO POSSIBLE
INTERPRETATIONS OF A STATUTE, BY ONE OF WHICH IT WOULD BE
UNCONSTITUTIONAL AND BY THE OTHER VALID, OUR PLAIN DUTY IS TO ADOPT
THAT WHICH WILL SAVE THE ACT.  EVEN TO AVOID A SERIOUS DOUBT THE RULE
IS THE SAME.  UNITED STATES V. DELAWARE & HUDSON CO., 213 U.S. 366,
407, 408.  UNITED STATES V. STANDARD BREWERY, 251 U.S. 210, 220.  TEXAS
V. EASTERN TEXAS R.R. CO., 258 U.S. 204, 217.  BRATTON V. CHANDLER, 260
U.S. 110, 114.  PANAMA R.R. CO. V. JOHNSON, 264 U.S. 375, 390.  WORDS
HAVE BEEN STRAINED MORE THAN THEY NEED TO BE STRAINED HERE IN ORDER TO
AVOID THAT DOUBT.  UNITED STATES V. JIN FUEY MOY, 241 U.S. 394, 401,
402."  BLODGETT V. HOLDEN, 275 U.S. 142, 148.  "'WHEN THE VALIDITY OF
AN ACT OF THE CONGRESS IS DRAWN IN QUESTION, AND EVEN 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."  BRANDEIS, J., CONCURRING, IN ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, SUPRA, AT 348. 

WE ARE NOT FACED INESCAPABLY WITH THE NECESSITY OF ADJUDICATING THESE
SERIOUS CONSTITUTIONAL QUESTIONS.  THE OBVIOUS OR, AT THE LEAST, THE
ONE CERTAIN CONSTRUCTION OF SEC. 304 IS THAT IT FORBIDS THE DISBURSING
AGENTS OF THE TREASURY TO PAY OUT OF SPECIFICALLY APPROPRIATED MONEYS
SUMS TO COMPENSATE RESPONDENTS FOR THEIR SERVICES.  WE HAVE NOTED THE
CLOUD CAST UPON THIS INTERPRETATION BY MANIFESTATIONS BY COMMITTEES AND
MEMBERS OF THE HOUSE OF REPRESENTATIVES BEFORE THE PASSAGE OF THIS
IN THE SENATE BUT ALSO IN THE HOUSE WHICH SUPPORTS THE MERE FISCAL
SCOPE TO BE GIVEN TO THE STATUTE.  THAT SUCH A CONSTRUCTION IS TENABLE
SETTLES OUR DUTY TO ADOPT IT AND TO AVOID DETERMINATION OF
CONSTITUTIONAL QUESTIONS OF GREAT SERIOUSNESS. 

ACCORDINGLY, I FEEL COMPELLED TO CONSTRUE SEC. 304 AS DID MR. CHIEF
JUSTICE WHALEY BELOW, 104 CT. CLS. 557, 584, 66 F.SUPP.  142, 147-148,
WHEREBY IT MERELY PREVENTED THE ORDINARY DISBURSAL OF MONEY TO PAY
RESPONDENTS' SALARIES.  IT DID NOT CUT OFF THE OBLIGATION OF THE
GOVERNMENT TO PAY FOR SERVICES RENDERED AND THE RESPONDENTS ARE,
THEREFORE, ENTITLED TO RECOVER THE JUDGMENT WHICH THEY OBTAINED FROM
THE COURT OF CLAIMS. 

FN1  "SEC.  304.  NO PART OF ANY APPROPRIATION, ALLOCATION, OR FUND
(1) WHICH IS MADE AVAILABLE UNDER OR PURSUANT TO THIS ACT, OR (2) WHICH
IS NOW, OR WHICH IS HEREAFTER MADE, AVAILABLE UNDER OR PURSUANT TO ANY
OTHER ACT, TO ANY DEPARTMENT, AGENCY, OR INSTRUMENTALITY OF THE UNITED
STATES, SHALL BE USED, AFTER NOVEMBER 15, 1943, TO PAY ANY PART OF THE
SALARY, OR OTHER COMPENSATION FOR THE PERSONAL SERVICES, OF GOODWIN B.
WATSON, WILLIAM E. DODD, JUNIOR, AND ROBERT MORSS LOVETT, UNLESS PRIOR
TO SUCH DATE SUCH PERSON HAS BEEN APPOINTED BY THE PRESIDENT, BY AND
WITH THE ADVICE AND CONSENT OF THE SENATE:  PROVIDED, THAT THIS SECTION
SHALL NOT OPERATE TO DEPRIVE ANY SUCH PERSON OF PAYMENT FOR LEAVES OF
ABSENCE OR SALARY, OR OF ANY REFUND OR REIMBURSEMENT, WHICH HAVE
ACCRUED PRIOR TO NOVEMBER 15, 1943:  PROVIDED FURTHER, THAT THIS
SERVICES PERFORMED AS A MEMBER OF A JURY OR AS A MEMBER OF THE ARMED
FORCES OF THE UNITED STATES NOR ANY BENEFIT, PENSION, OR EMOLUMENT
RESULTING THEREFROM." 

FN2  EVEN AGAINST THE HOLDING THAT SUCH ENACTMENTS WERE BILLS OF
ATTAINDER, MR. JUSTICE MILLER WROTE THE POWERFUL DISSENT CONCURRED IN
BY MR. CHIEF JUSTICE CHASE, MR. JUSTICE SWAYNE, AND MR. JUSTICE DAVIS. 
4 WALL.  333, 382. 
..END :






















PENNEKAMP V. FLORIDA, 328 U.S. 331 


NO. 473.  ARGUED FEBRUARY 8, 1946.  - DECIDED JUNE 3, 1946.  - 156 FLA.
227, 22 SO.2D 875, REVERSED. 


PETITIONERS, THE PUBLISHER AND THE ASSOCIATE EDITOR OF A NEWSPAPER,
WERE RESPONSIBLE FOR THE PUBLICATION OF TWO EDITORIALS AND A CARTOON
CRITICIZING CERTAIN ACTIONS PREVIOUSLY TAKEN BY A FLORIDA TRIAL COURT
OF GENERAL JURISDICTION IN CERTAIN NON-JURY PROCEEDINGS AS BEING TOO
FAVORABLE TO CRIMINALS AND GAMBLING ESTABLISHMENTS.  TWO OF THE CASES
INVOLVED HAD BEEN DISMISSED.  IN THE THIRD, A RAPE CASE, AN INDICTMENT
HAD BEEN QUASHED FOR TECHNICAL DEFECTS, BUT A NEW INDICTMENT HAD BEEN
OBTAINED AND TRIAL WAS PENDING.  PETITIONERS WERE CITED FOR CONTEMPT,
THE CITATION CHARGING, INTER ALIA, THAT THE PUBLICATIONS REFLECTED UPON
AND IMPUGNED THE INTEGRITY OF THE COURT, TENDED TO CREATE A DISTRUST
FOR THE COURT, WILFULLY WITHHELD AND SUPPRESSED THE TRUTH, AND TENDED
TO OBSTRUCT THE FAIR AND IMPARTIAL ADMINISTRATION OF JUSTICE IN PENDING
CASES.  IN THEIR ANSWER, PETITIONERS DENIED ANY INTENT TO INTERFERE
WITH FAIR AND IMPARTIAL JUSTICE AND CLAIMED, INTER ALIA, THAT IT WAS
THEIR INTENT TO CONDEMN AND CRITICIZE THE SYSTEM OF PLEADING AND
PRACTICE CREATED BY THE LAWS OF FLORIDA, THAT THE PUBLICATIONS WERE
LEGITIMATE CRITICISM AND COMMENT WITHIN THE FEDERAL GUARANTIES OF A
FREE PRESS, AND THAT THEY CREATED NO CLEAR AND PRESENT DANGER TO THE
ADMINISTRATION OF JUSTICE.  THE COURT FOUND THE FACTS RECITED AND THE
CHARGES MADE IN THE CITATION TO BE TRUE AND WELL FOUNDED, ADJUDGED
PETITIONERS GUILTY OF CONTEMPT, AND FINED THEM.  THIS JUDGMENT WAS
SUSTAINED BY THE SUPREME COURT OF FLORIDA AS BEING IN ACCORDANCE WITH
FLORIDA LAW.  HELD: 

1.  ON THIS RECORD, THE DANGER TO FAIR JUDICIAL ADMINISTRATION HAS
NOT THE CLEARNESS AND IMMEDIACY NECESSARY TO CLOSE THE DOOR OF
PERMISSIBLE PUBLIC COMMENT; AND THE JUDGMENT IS REVERSED AS VIOLATIVE
OF PETITIONERS' RIGHT OF FREE EXPRESSION IN THE PRESS UNDER THE FIRST
AND FOURTEENTH AMENDMENTS.  BRIDGES V. CALIFORNIA, 314 U.S. 252.  PP.
334, 346-350. 

2.  THIS COURT HAS FINAL AUTHORITY TO DETERMINE THE MEANING AND
APPLICATION OF THOSE WORDS OF THE CONSTITUTION WHICH REQUIRE
INTERPRETATION TO RESOLVE JUDICIAL ISSUES.  P. 335. 

3.  IN CASES OF THIS TYPE, IT MUST EXAMINE FOR ITSELF THE STATEMENTS
IN ISSUE AND THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE TO SEE
WHETHER OR NOT THEY CARRY A THREAT OF CLEAR AND PRESENT DANGER TO THE
IMPARTIALITY AND GOOD ORDER OF THE COURTS OR WHETHER THEY ARE OF A
CHARACTER PROTECTED BY THE PRINCIPLES OF THE FIRST AND FOURTEENTH
AMENDMENTS.  PP. 335, 336, 346. 

4.  WHEN THE HIGHEST COURT OF A STATE HAS REACHED A DETERMINATION
UPON SUCH AN ISSUE, THIS COURT GIVES MOST RESPECTFUL ATTENTION TO ITS
REASONING AND CONCLUSION; BUT THE STATE COURT'S AUTHORITY IS NOT
FINAL.  P. 335. 

5.  THIS COURT AGREES WITH THE SUPREME COURT OF FLORIDA THAT THE RAPE
CASE WAS PENDING AT THE TIME OF THE PUBLICATION.  P. 344. 

6.  THIS COURT MAY ACCEPT THE CONCLUSION OF THE FLORIDA COURTS UPON
INTENT AND MOTIVE AS A DETERMINATION OF FACT; BUT IT IS FOR THIS COURT
TO DETERMINE FEDERAL CONSTITUTIONAL RIGHTS IN THE SETTING OF THE
FACTS.  P. 345. 

7.  DISCUSSION THAT FOLLOWS THE TERMINATION OF A CASE MAY BE
INADEQUATE TO EMPHASIZE THE DANGER TO PUBLIC WELFARE OF SUPPOSEDLY
WRONGFUL JUDICIAL CONDUCT, BUT IT DOES NOT FOLLOW THAT PUBLIC COMMENT
OF EVERY CHARACTER UPON PENDING TRIALS OR LEGAL PROCEEDINGS MAY BE AS
FREE AS SIMILAR COMMENT AFTER COMPLETE DISPOSAL OF THE LITIGATION.  P.
346. 

8.  IN BORDERLINE CASES WHERE IT IS DIFFICULT TO SAY UPON WHICH SIDE
THE ALLEGED OFFENSE FALLS, THE SPECIFIC FREEDOM OF PUBLIC COMMENT
SHOULD WEIGH HEAVILY AGAINST A POSSIBLE TENDENCY TO INFLUENCE PENDING
CASES.  FREEDOM OF DISCUSSION SHOULD BE GIVEN THE WIDEST POSSIBLE RANGE
COMPATIBLE WITH THE ESSENTIAL REQUIREMENT OF THE FAIR AND ORDERLY
ADMINISTRATION OF JUSTICE.  P. 347. 

9.  SINCE THE PUBLICATIONS CONCERNED THE ATTITUDE OF THE JUDGES
TOWARD THOSE CHARGED WITH CRIME, NOT COMMENTS ON EVIDENCE OR RULINGS
DURING A JURY TRIAL, THEIR EFFECT ON JURIES THAT MIGHT EVENTUALLY TRY
THE ALLEGED OFFENDERS IS TOO REMOTE TO BE CONSIDERED A CLEAR AND
PRESENT DANGER TO JUSTICE.  P. 348. 

10.  THIS CRITICISM OF THE JUDGE'S INCLINATIONS OR ACTIONS IN PENDING
NON-JURY PROCEEDINGS COULD NOT DIRECTLY AFFECT THE ADMINISTRATION OF
JUSTICE, ALTHOUGH THE CASES WERE STILL PENDING ON OTHER POINTS OR MIGHT
BE REVIVED BY REHEARINGS.  P. 348. 

11.  THAT A JUDGE MIGHT BE INFLUENCED BY A DESIRE TO PLACATE THE
ACCUSING NEWSPAPER TO RETAIN PUBLIC ESTEEM AND SECURE REELECTION AT THE
COST OF UNFAIR RULINGS AGAINST AN ACCUSED IS TOO REMOTE A POSSIBILITY
TO BE CONSIDERED A CLEAR AND PRESENT DANGER TO JUSTICE.  P. 349. 

PENNEKAMP ET AL. V. FLORIDA. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

PETITIONERS WERE ADJUDGED GUILTY OF CONTEMPT OF A STATE COURT.  THE
SUPREME COURT OF FLORIDA AFFIRMED.  156 FLA. 227, 22 SO.2D 875.  THIS
COURT GRANTED CERTIORARI.  326 U.S. 709.  REVERSED, P. 350. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING BRINGS HERE FOR REVIEW A JUDGMENT OF THE SUPREME
COURT OF FLORIDA, 156 FLA. 227, 22 SO.2D 875, WHICH AFFIRMED A JUDGMENT
OF GUILT IN CONTEMPT OF THE CIRCUIT COURT OF DADE COUNTY, FLORIDA, ON A
CITATION OF PETITIONERS BY THAT CIRCUIT COURT. 

THE INDIVIDUAL PETITIONER WAS THE ASSOCIATE EDITOR OF THE MIAMI
HERALD, A NEWSPAPER OF GENERAL CIRCULATION, PUBLISHED IN DADE COUNTY,
FLORIDA, AND WITHIN THE JURISDICTION OF THE TRIAL COURT.  THE CORPORATE
PETITIONER WAS THE PUBLISHER OF THE MIAMI HERALD.  TOGETHER PETITIONERS
WERE RESPONSIBLE FOR THE PUBLICATION OF TWO EDITORIALS CHARGED BY THE
CITATION TO BE CONTEMPTUOUS OF THE CIRCUIT COURT AND ITS JUDGES IN THAT
THEY WERE UNLAWFULLY CRITICAL OF THE ADMINISTRATION OF CRIMINAL JUSTICE
IN CERTAIN CASES THEN PENDING BEFORE THE COURT. 

CERTIORARI WAS GRANTED TO REVIEW PETITIONERS' CONTENTION THAT THE
EDITORIALS DID NOT PRESENT "A CLEAR AND PRESENT DANGER OF HIGH
IMMINENCE TO THE ADMINISTRATION OF JUSTICE BY THE COURT" OR JUDGES WHO
WERE CRITICIZED AND THEREFORE THE JUDGMENT OF CONTEMPT WAS INVALID AS
VIOLATIVE OF THE PETITIONERS' RIGHT OF FREE EXPRESSION IN THE PRESS. 
THE IMPORTANCE OF THE ISSUE IN THE ADMINISTRATION OF JUSTICE AT THIS
TIME, IN VIEW OF THIS COURT'S DECISION IN BRIDGES V. CALIFORNIA, 314
U.S. 252, THREE YEARS PRIOR TO THIS JUDGMENT IN CONTEMPT, IS APPARENT. 

BRIDGES V. CALIFORNIA FIXED REASONABLY WELL-MARKED LIMITS AROUND THE
POWER OF COURTS TO PUNISH NEWSPAPERS AND OTHERS FOR COMMENTS UPON OR
CRITICISM OF PENDING LITIGATION.  THE CASE PLACED ORDERLY OPERATION OF
COURTS AS THE PRIMARY AND DOMINANT REQUIREMENT IN THE ADMINISTRATION OF
JUSTICE.  PAGES 263, 265, 266.  THIS ESSENTIAL RIGHT OF THE COURTS TO
BE FREE OF INTIMIDATION AND COERCION WAS HELD TO BE CONSONANT WITH A
RECOGNITION THAT FREEDOM OF THE PRESS MUST BE ALLOWED IN THE BROADEST
SCOPE COMPATIBLE WITH THE SUPREMACY OF ORDER.  A THEORETICAL
DETERMINANT OF THE LIMIT FOR OPEN DISCUSSION WAS ADOPTED FROM
EXPERIENCE WITH OTHER ADJUSTMENTS OF THE CONFLICT BETWEEN FREEDOM OF
EXPRESSION AND MAINTENANCE OF ORDER.  THIS WAS THE CLEAR AND PRESENT
DANGER RULE.  THE EVIL CONSEQUENCE OF COMMENT MUST BE "EXTREMELY
SERIOUS AND THE DEGREE OF IMMINENCE EXTREMELY HIGH BEFORE UTTERANCES
CAN BE PUNISHED."  PAGE 263.  IT WAS, OF COURSE, RECOGNIZED THAT THIS
FORMULA, AS WOULD ANY OTHER, INEVITABLY HAD THE VICE OF UNCERTAINTY,
PAGE 261, BUT IT WAS EXPECTED THAT, FROM A DECENT SELF-RESTRAINT ON THE
PART OF THE PRESS AND FROM THE FORMULA'S REPEATED APPLICATION BY THE
COURTS, STANDARDS OF PERMISSIBLE COMMENT WOULD EMERGE WHICH WOULD
GUARANTEE THE COURTS AGAINST INTERFERENCE AND ALLOW FAIR PLAY TO THE
GOOD INFLUENCES OF OPEN DISCUSSION.  AS A STEP TOWARD THE MARKING OF
THE LINE, WE HELD THAT THE PUBLICATIONS THERE INVOLVED WERE WITHIN THE
PERMISSIBLE LIMITS OF FREE DISCUSSION. 

IN THE BRIDGES CASE THE CLEAR AND PRESENT DANGER RULE WAS APPLIED TO
THE STATED ISSUE OF WHETHER THE EXPRESSIONS THERE UNDER CONSIDERATION
PREVENTED "FAIR JUDICIAL TRIALS FREE FROM COERCION OR INTIMIDATION." 
PAGE 259.  THERE WAS, OF COURSE, NO QUESTION AS TO THE POWER TO PUNISH
FOR DISTURBANCES AND DISORDER IN THE COURT ROOM.  PAGE 266.  THE DANGER
TO BE GUARDED AGAINST IS THE "SUBSTANTIVE EVIL" SOUGHT TO BE
PREVENTED.  PAGES 261, 262, 263.  IN THE BRIDGES CASE THAT "SUBSTANTIVE
EVIL" WAS PRIMARILY THE "DISORDERLY AND UNFAIR ADMINISTRATION OF
JUSTICE."  PAGES 270, 271, 278.  FN1 

THE CONSTITUTION HAS IMPOSED UPON THIS COURT FINAL AUTHORITY TO
DETERMINE THE MEANING AND APPLICATION OF THOSE WORDS OF THAT INSTRUMENT
WHICH REQUIRE INTERPRETATION TO RESOLVE JUDICIAL ISSUES.  WITH THAT
RESPONSIBILITY, WE ARE COMPELLED TO EXAMINE FOR OURSELVES THE
STATEMENTS IN ISSUE AND THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE TO
SEE WHETHER OR NOT THEY DO CARRY A THREAT OF CLEAR AND PRESENT DANGER
TO THE IMPARTIALITY AND GOOD ORDER OF THE COURTS OR WHETHER THEY ARE OF
A CHARACTER WHICH THE PRINCIPLES OF THE FIRST AMENDMENT, AS ADOPTED BY
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, PROTECT N2.  WHEN
THE HIGHEST COURT OF A STATE HAS REACHED A DETERMINATION UPON SUCH AN
ISSUE, WE GIVE MOST RESPECTFUL ATTENTION TO ITS REASONING AND
CONCLUSION BUT ITS AUTHORITY IS NOT FINAL.  WERE IT OTHERWISE THE
CONSTITUTIONAL LIMITS OF FREE EXPRESSION IN THE NATION WOULD VARY WITH
STATE LINES.  FN3 

WHILE THERE WAS A DIVISION OF THE COURT IN THE BRIDGES CASE AS TO
WHETHER SOME OF THE PUBLIC EXPRESSIONS BY EDITORIAL COMMENT
TRANSGRESSED THE BOUNDARIES OF A FREE PRESS AND AS TO THE PHRASING OF
THE TEST, THERE WAS UNANIMOUS RECOGNITION THAT CALIFORNIA'S POWER TO
PUNISH FOR CONTEMPT WAS LIMITED BY THIS COURT'S INTERPRETATION OF THE
EXTENT OF PROTECTION AFFORDED BY THE FIRST AMENDMENT.  BRIDGES V.
CALIFORNIA, SUPRA, AT 297.  WHETHER THE THREAT TO THE IMPARTIAL AND
ORDERLY ADMINISTRATION OF JUSTICE MUST BE A CLEAR AND PRESENT OR A
GRAVE AND IMMEDIATE DANGER, A REAL AND SUBSTANTIAL THREAT, ONE WHICH IS
CLOSE AND DIRECT OR ONE WHICH DISTURBS THE COURT'S SENSE OF FAIRNESS
DEPENDS UPON A CHOICE OF WORDS.  UNDER ANY ONE OF THE PHRASES,
REVIEWING COURTS ARE BROUGHT IN CASES OF THIS TYPE TO APPRAISE THE
COMMENT ON A BALANCE BETWEEN THE DESIRABILITY OF FREE DISCUSSION AND
THE NECESSITY FOR FAIR ADJUDICATION, FREE FROM INTERRUPTION OF ITS
PROCESSES. 

THE EDITORIALS OF NOVEMBER 2D AND 7TH, 1944, WHICH CAUSED THE COURT
TO ISSUE THE CITATION ARE SET OUT BELOW.  FN4  ACCOMPANYING THE FIRST
EDITORIAL WAS A CARTOON WHICH HELD UP THE LAW TO PUBLIC OBLOQUY.  IT
CARICATURED A COURT BY A ROBED COMPLIANT FIGURE AS A JUDGE ON THE BENCH
TOSSING ASIDE FORMAL CHARGES TO HAND A DOCUMENT, MARKED "DEFENDANT
DISMISSED," TO A POWERFUL FIGURE CLOSE AT HIS LEFT ARM AND OF AN
INTENTIONALLY DRAWN CRIMINAL TYPE.  AT THE RIGHT OF THE BENCH, A FUTILE
INDIVIDUAL, LABELED "PUBLIC INTEREST" VAINLY PROTESTS. 

THE CITATION CHARGES THAT THE EDITORIALS 

"DID REFLECT UPON AND IMPUGN THE INTEGRITY OF SAID COURT AND THE
JUDGES THEREOF IN IMPUTING THAT THE JUDGES OF SAID COURT 'DO RECOGNIZE
AND ACCEPT, EVEN GO OUT TO FIND, EVERY POSSIBLE TECHNICALITY OF THE LAW
TO PROTECT THE DEFENDANT, TO BLOCK, THWART, HINDER, EMBARRASS AND
NULLIFY PROSECUTION,' WHICH SAID ACTS BY YOU TEND TO CREATE A DISTRUST
FOR SAID COURT AND THE JUDGES THEREOF IN THE MINDS OF THE PEOPLE OF
THIS COUNTY AND STATE AND TEND TO PREVENT AND PREJUDICE A FAIR AND
IMPARTIAL ACTION OF THE SAID COURT AND THE JUDGES THEREOF IN RESPECT TO
THE SAID PENDING (CASES)." 

AFTER SETTING OUT DETAILS OF ALLEGED WILLFUL WITHHOLDING AND
SUPPRESSION OF THE WHOLE TRUTH IN THE PUBLICATIONS, THE CITATION
FURTHER CHARGES THAT 

"YOU, BY SAID CARTOON AND EDITORIAL, HAVE CAUSED TO BE REPRESENTED
UNTO THE PUBLIC THAT CONCERNING THE CASES OF (A) THE EIGHT INDICTMENTS
FOR RAPE, (B) THE SAID BROOK CLUB CASE, AND (C) THE TEEPEE CLUB CASE,
THAT THE JUDGES OF THIS COURT (HAD NOT) FAIRLY AND IMPARTIALLY HEARD
AND DECIDED THE MATTERS IN SAID EDITORIAL MENTIONED AND HAVE THEREBY
REPRESENTED UNTO THE GENERAL PUBLIC THAT NOTWITHSTANDING THE GREAT
PUBLIC TRUST VESTED IN THE JUDGES OF THIS COURT THAT THEY HAVE NOT
DISCHARGED THEIR DUTIES HONORABLY AND FAIRLY IN RESPECT TO SAID PENDING
CASES AS HEREINBEFORE SET FORTH, ALL OF WHICH TENDS TO OBSTRUCT AND
INTERFERE WITH THE SAID JUDGES AS SUCH IN FAIRLY AND IMPARTIALLY
ADMINISTERING JUSTICE AND IN THE DISCHARGING OF THEIR DUTIES IN
CONFORMITY WITH THE TRUE PRINCIPLES WHICH YOU HAVE SO PROPERLY
RECOGNIZED IN THE FOREPART OF SAID EDITORIAL ABOVE QUOTED AS BEING
INCUMBENT UPON THEM AND EACH OF THEM; ..." 

PETITIONERS WERE REQUIRED TO SHOW CAUSE WHY THEY SHOULD NOT BE HELD
IN CONTEMPT. 

PETITIONERS ANSWERED THAT THE PUBLICATIONS WERE LEGITIMATE CRITICISM
AND COMMENT WITHIN THE FEDERAL GUARANTIES OF FREE PRESS AND CREATED NO
CLEAR AND PRESENT DANGER TO THE ADMINISTRATION OF JUSTICE.  THEY SOUGHT
TO JUSTIFY THE PUBLICATIONS BY STATING IN THEIR RETURN TO THE RULE THAT
THE FACTS STATED IN THE EDITORIALS WERE CORRECT, THAT TWO OF THE CASES
USED AS EXAMPLES WERE NOT PENDING WHEN THE COMMENTS WERE MADE, SINCE
ORDERS OF DISMISSAL HAD BEEN PREVIOUSLY ENTERED BY THE CIRCUIT COURT,
AND THAT THEY AS EDITORS 

"HAD THE RIGHT IF NOT THE DUTY OPENLY AND FORCEFULLY TO DISCUSS THESE
CONDITIONS TO THE END THAT THESE EVILS THAT ARE PROFOUNDLY DISTURBING
TO THE CITIZENS OF THIS COUNTY, MIGHT BE REMEDIED.  THE PUBLICATIONS
COMPLAINED OF DID NOTHING MORE THAN DISCUSS THE GENERALLY RECOGNIZED
WEAKNESS AND BREAKDOWN IN THE SYSTEM OF LAW ENFORCEMENT AND CALL FOR
ITS IMPROVEMENT." 

IT IS NOT PRACTICABLE TO COMMENT AT LENGTH ON EACH OF THE CHALLENGED
ITEMS.  TO MAKE OUR DECISION AS CLEAR AS POSSIBLE, WE SHALL REFER IN
DETAIL ONLY TO THE COMMENTS CONCERNING THE "RAPE CASES."  THESE WE
THINK FAIRLY ILLUSTRATE THE ISSUES AND ARE THE MOST DIFFICULT COMMENTS
FOR THE PETITIONERS TO DEFEND. 

AS TO THESE CASES, THE EDITORIAL SAID: 

"THIS WEEK THE PEOPLE, THROUGH THEIR GRAND JURY, BROUGHT INTO COURT
EIGHT INDICTMENTS FOR RAPE.  JUDGE PAUL D. BARNS AGREED WITH THE
DEFENSE THAT THE INDICTMENTS WERE NOT PROPERLY DRAWN.  BACK THEY WENT
TO THE GRAND JURY FOR RE-PRESENTATION TO THE COURT." 

WE SHALL ASSUME THAT THE STATEMENT, "JUDICIAL INSTANCE AND
INTERPRETATIVE PROCEDURE  ...  EVEN GO OUT TO FIND, EVERY POSSIBLE
TECHNICALITY OF THE LAW TO PROTECT THE DEFENDANT  ...  AND NULLIFY
PROSECUTION," REFERS TO THE QUASHING OF THE RAPE INDICTMENTS AS WELL AS
OTHER CONDEMNED STEPS.  THE COMMENT OF THE LAST TWO PARAGRAPHS
EVIDENTLY INCLUDES THESE DISMISSALS AS SO-CALLED LEGAL TECHNICALITIES. 
SEE NOTE 4. 

THE CITATION CHARGED THAT THE PROSECUTING OFFICER IN OPEN COURT
AGREED THAT THE INDICTMENTS WERE SO DEFECTIVE AS TO MAKE REINDICTMENT
ADVISABLE.  REINDICTMENTS WERE RETURNED THE NEXT DAY AND BEFORE THE
EDITORIAL.  IT WAS CHARGED THAT THESE OMISSIONS WERE A WANTON
WITHHOLDING OF THE FULL TRUTH. 

AS TO THIS CHARGE, THE PETITIONERS MADE THIS RETURN: 

"THAT AS AVERRED IN THE CITATION, A MOTION WAS MADE TO QUASH THE
INDICTMENT IN CASE 856, THE RULING UPON WHICH WOULD CONTROL IN THE
OTHER CASES MENTIONED.  WHEREUPON THE REPRESENTATIVE OF THE STATE
ATTORNEY'S OFFICE STATED IN EFFECT THAT HE BELIEVED THE ORIGINAL
INDICTMENT WAS IN PROPER FORM, BUT TO ELIMINATE ANY QUESTION HE WOULD
HAVE THESE DEFENDANTS IMMEDIATELY RE-INDICTED BY THE GRAND JURY WHICH
WAS STILL THEN IN SESSION.  AND THEREUPON, THE JUDGE OF SAID COURT DID
SUSTAIN THE MOTION TO QUASH WITH RESPECT TO CASE NO. 856." 

THE RECORD OF THE CRIMINAL DIVISION OF THE CIRCUIT COURT, SET OUT IN
THE FINDINGS OF FACT AT THE HEARING ON THE CITATION IN CONTEMPT, SHOWS
THAT IN CASE NO. 856 THE COURT UPHELD THE DEFENDANTS' MOTION TO QUASH
"WITH THE APPROVAL OF THE ASSISTANT STATE ATTORNEY" AND QUASHED THE
REMAINING INDICTMENTS ON HIS RECOMMENDATION.  REINDICTMENT OF THE
ACCUSED ON THE NEXT DAY, PROMPT ARRAIGNMENT AND SETTING FOR TRIAL ALSO
APPEARS.  WE ACCEPT THE RECORD AS CONCLUSIVE OF THE FACTS. 

WE READ THE CIRCUIT COURT'S JUDGMENT TO FIND THAT THE COMMENT ON THE
RAPE CASES CONTAINED ONLY "HALF-TRUTHS," THAT IT DID NOT "FAIRLY REPORT
THE PROCEEDINGS" OF THE COURT, THAT IT CONTAINED "MISINFORMATION."  THE
JUDGMENT SAID: 

"TO REPORT ON COURT PROCEEDINGS IS A VOLUNTARY UNDERTAKING BUT WHEN
UNDERTAKEN THE PUBLISHER WHO FAILS TO FAIRLY REPORT DOES SO AT HIS OWN
PERIL. 

"WE FIND THE FACTS RECITED AND THE CHARGES MADE IN THE CITATION TO BE
TRUE AND WELL FOUNDED; ..." 

THIS FINDING INCLUDED THE FACT THAT REINDICTMENTS WERE THEN PENDING
IN THE RAPE CASES.  DEFENDANTS' ASSIGNMENTS OF ERROR CHALLENGED THE
RULING THAT THE MATTERS REFERRED TO IN THE EDITORIALS WERE PENDING AND
THE SUPREME COURT OF FLORIDA RULED THAT THE CASES WERE PENDING.  156
FLA. AT 241, 22 SO.2D AT 883: 

"WE ALSO AGREE THAT PUBLICATIONS ABOUT A CASE THAT IS CLOSED NO
MATTER HOW SCANDALOUS, ARE NOT PUNISHABLE AS CONTEMPT.  THIS IS THE
GENERAL RULE BUT THE FLORIDA STATUTE IS MORE LIBERAL THAN THE RULE." 

CF. FLORIDA STATUTES 1941, SEC. 38.23 AND SEC. 932.03; SEE ALSO 156
FLA. AT 248, 249, 22 SO.2D AT 886. 

IN BRIDGES V. CALIFORNIA, 314 U.S. 252, 271-78, DISSENT 297-302, THIS
COURT LOOKED UPON CASES AS PENDING FOLLOWING COMPLETED INTERLOCUTORY
ACTIONS OF THE COURTS BUT AWAITING OTHER STEPS.  IN ONE INSTANCE IT WAS
SENTENCE AFTER VERDICT.  IN ANOTHER, A MOTION FOR A NEW TRIAL. 

PENNEKAMP WAS FINED $250 AND THE CORPORATION, $1,000.00. 

THE SUPREME COURT OF FLORIDA RESTATED THE FACTS AS TO THE RAPE CASES
FROM THE RECORD.  156 FLA. AT 238, 22 SO.2D AT 881.  IT THEN REACHED A
CONCLUSION AS TO ALL OF THE CHARGES AND SO AS TO THE RAPE CASES IN THE
WORDS SET OUT BELOW.  FN5  AFTER FURTHER DISCUSSION OF THE FACTS, THE
COURT SAID, 156 FLA. AT 241, 22 SO.2D AT 883:    "IN THE LIGHT OF THIS
FACTUAL RECITATION, IT IS UTTER FOLLY TO SUGGEST THAT THE OBJECT OF
THESE PUBLICATIONS WAS OTHER THAN TO ABASE AND DESTROY THE EFFICIENCY
OF THE COURT." 

TO FOCUS ATTENTION ON THE CRITICAL ISSUE, WE QUOTE BELOW FROM THE
DECISION OF THE SUPREME COURT OF FLORIDA CERTAIN EXCERPTS WHICH WE
BELIEVE FAIRLY ILLUSTRATE ITS POSITION AS TO THE APPLICABLE LAW.  FN6 

FROM THE EDITORIALS, THE EXPLANATIONS OF THE PETITIONERS AND THE
RECORDS OF THE COURT, IT IS CLEAR THAT THE FULL TRUTH IN REGARD TO THE
QUASHING OF THE INDICTMENTS WAS NOT PUBLISHED.  WE AGREE WITH THE
SUPREME COURT THAT THE RAPE CASES WERE PENDING AT THE TIME OF THE
EDITORIALS.  WE AGREE THAT THE EDITORIALS DID NOT STATE OBJECTIVELY THE
ATTITUDE OF THE JUDGES.  WE ACCEPT THE STATEMENT OF THE SUPREME COURT
THAT UNDER FLORIDA LAW, "THERE WAS NO JUDGMENT THAT COULD HAVE BEEN
ENTERED IN ANY OF THEM EXCEPT THE ONE THAT WAS ENTERED."  156 FLA. AT
240, 22 SO.2D AT 882.  AND, ALTHOUGH WE MAY FEEL THAT THIS RECORD
SCARCELY JUSTIFIES THE HARSH INFERENCE THAT THE TRUTH WAS WILLFULLY OR
WANTONLY OR RECKLESSLY WITHHELD FROM THE PUBLIC OR THAT THE MOTIVE
BEHIND THE PUBLICATION WAS TO ABASE AND DESTROY THE EFFICIENCY OF THE
COURTS, WE MAY ACCEPT IN THIS CASE THAT CONCLUSION OF THE FLORIDA
COURTS UPON INTENT AND MOTIVE AS A DETERMINATION OF FACT.  FN7  WHILE
THE ULTIMATE POWER IS HERE TO RANSACK THE RECORD FOR FACTS IN
CONSTITUTIONAL CONTROVERSIES, WE ARE ACCUSTOMED TO ADOPT THE RESULT OF
THE STATE COURT'S EXAMINATION.  FN8  IT IS THE FINDINGS OF THE STATE
COURTS ON UNDISPUTED FACTS OR THE UNDISPUTED FACTS THEMSELVES WHICH
ORDINARILY FURNISH THE BASIS FOR OUR APPRAISAL OF CLAIMED VIOLATIONS OF
FEDERAL CONSTITUTIONAL RIGHTS.  FN9 

THE ACCEPTANCE OF THE CONCLUSION OF A STATE COURT AS TO THE FACTS OF
A SITUATION LEAVES OPEN TO THIS COURT THE DETERMINATION OF FEDERAL
CONSTITUTIONAL RIGHTS IN THE SETTING OF THOSE FACTS.  FN10 WHEN THE
BRIDGES CASE WAS HERE, THERE WAS NECESSARILY INVOLVED A DETERMINATION
BY THE CALIFORNIA STATE COURT THAT ALL OF THE EDITORIALS HAD, AT LEAST,
A TENDENCY TO INTERFERE WITH THE FAIR ADMINISTRATION OF CRIMINAL
JUSTICE IN PENDING CASES IN A COURT OF THAT STATE.  YET THIS COURT WAS
UNANIMOUS IN SAYING THAT TWO OF THOSE EDITORIALS HAD NO SUCH IMPACT
UPON A COURT AS TO JUSTIFY A CONVICTION OF CONTEMPT IN THE FACE OF THE
PRINCIPLES OF THE FIRST AMENDMENT.  WE MUST, THEREFORE, WEIGH THE RIGHT
OF FREE SPEECH WHICH IS CLAIMED BY THE PETITIONERS AGAINST THE DANGER
OF THE COERCION AND INTIMIDATION OF COURTS IN THE FACTUAL SITUATION
PRESENTED BY THIS RECORD. 

FREE DISCUSSION OF THE PROBLEMS OF SOCIETY IS A CARDINAL PRINCIPLE OF
AMERICANISM - A PRINCIPLE WHICH ALL ARE ZEALOUS TO PRESERVE.  FN11
DISCUSSION THAT FOLLOWS THE TERMINATION OF A CASE MAY BE INADEQUATE TO
EMPHASIZE THE DANGER TO PUBLIC WELFARE OF SUPPOSEDLY WRONGFUL JUDICIAL
CONDUCT.  FN12  IT DOES NOT FOLLOW THAT PUBLIC COMMENT OF EVERY
CHARACTER UPON PENDING TRIALS OR LEGAL PROCEEDINGS MAY BE AS FREE AS A
SIMILAR COMMENT AFTER COMPLETE DISPOSAL OF THE LITIGATION.  BETWEEN THE
EXTREMES THERE ARE AREAS OF DISCUSSION WHICH AN UNDERSTANDING WRITER
WILL APPRAISE IN THE LIGHT OF THE EFFECT ON HIMSELF AND ON THE PUBLIC
OF CREATING A CLEAR AND PRESENT DANGER TO FAIR AND ORDERLY JUDICIAL
ADMINISTRATION.  COURTS MUST HAVE POWER TO PROTECT THE INTERESTS OF
PRISONERS AND LITIGANTS BEFORE THEM FROM UNSEEMLY EFFORTS TO PERVERT
JUDICIAL ACTION.  IN THE BORDERLINE INSTANCES WHERE IT IS DIFFICULT TO
SAY UPON WHICH SIDE THE ALLEGED OFFENSE FALLS, WE THINK THE SPECIFIC
FREEDOM OF PUBLIC COMMENT SHOULD WEIGH HEAVILY AGAINST A POSSIBLE
TENDENCY TO INFLUENCE PENDING CASES.  FREEDOM OF DISCUSSION SHOULD BE
GIVEN THE WIDEST RANGE COMPATIBLE WITH THE ESSENTIAL REQUIREMENT OF THE
FAIR AND ORDERLY ADMINISTRATION OF JUSTICE. 

WHILE A DISCLAIMER OF INTENTION DOES NOT PURGE A CONTEMPT, WE MAY AT
THIS POINT CALL ATTENTION TO THE SWORN ANSWER OF PETITIONERS THAT THEIR
PURPOSE WAS NOT TO INFLUENCE THE COURT.  AN EXCERPT APPEARS BELOW. 
FN13  FOR CIRCUMSTANCES TO CREATE A CLEAR AND PRESENT DANGER TO
JUDICIAL ADMINISTRATION, A SOLIDITY OF EVIDENCE SHOULD BE REQUIRED
WHICH IT WOULD BE DIFFICULT TO FIND IN THIS RECORD.  COMPARE
BAUMGARTNER V. UNITED STATES, 322 U.S. 665, 670; SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118. 

THE COMMENTS WERE MADE ABOUT JUDGES OF COURTS OF GENERAL JURISDICTION
- JUDGES SELECTED BY THE PEOPLE OF A POPULOUS AND EDUCATED COMMUNITY. 
THEY CONCERNED THE ATTITUDE OF THE JUDGES TOWARD THOSE WHO WERE CHARGED
WITH CRIME, NOT COMMENTS ON EVIDENCE OR RULINGS DURING A JURY TRIAL. 
THEIR EFFECT ON JURIES THAT MIGHT EVENTUALLY TRY THE ALLEGED OFFENDERS
AGAINST THE CRIMINAL LAWS OF FLORIDA IS TOO REMOTE FOR DISCUSSION. 
COMMENT ON PENDING CASES MAY AFFECT JUDGES DIFFERENTLY.  IT MAY
INFLUENCE SOME JUDGES MORE THAN OTHERS.  SOME ARE OF A MORE SENSITIVE
FIBER THAN THEIR COLLEAGUES.  THE LAW DEALS IN GENERALITIES AND
EXTERNAL STANDARDS AND CANNOT DEPEND ON THE VARYING DEGREES OF MORAL
COURAGE OR STABILITY IN THE FACE OF CRITICISM WHICH INDIVIDUAL JUDGES
MAY POSSESS ANY MORE THAN IT GENERALLY CAN DEPEND ON THE PERSONAL
EQUATIONS OR INDIVIDUAL IDIOSYNCRASIES OF THE TORT-FEASOR.  THE
GERMANIC, 196 U.S. 589, 596; ARIZONA EMPLOYERS' LIABILITY CASES, 250
U.S. 400, 422, 432.  WE ARE NOT WILLING TO SAY UNDER THE CIRCUMSTANCES
OF THIS CASE THAT THESE EDITORIALS ARE A CLEAR AND PRESENT DANGER TO
THE FAIR ADMINISTRATION OF JUSTICE IN FLORIDA.  CF. NEAR V. MINNESOTA,
283 U.S. 697, 714-15. 

WHAT IS MEANT BY CLEAR AND PRESENT DANGER TO A FAIR ADMINISTRATION OF
JUSTICE?  NO DEFINITION COULD GIVE AN ANSWER.  CERTAINLY THIS CRITICISM
OF THE JUDGES' INCLINATIONS OR ACTIONS IN THESE PENDING NON-JURY
PROCEEDINGS COULD NOT DIRECTLY AFFECT SUCH ADMINISTRATION.  THIS
CRITICISM OF THEIR ACTIONS COULD NOT AFFECT THEIR ABILITY TO DECIDE THE
ISSUES.  HERE THERE IS ONLY CRITICISM OF JUDICIAL ACTION ALREADY TAKEN,
ALTHOUGH THE CASES WERE STILL PENDING ON OTHER POINTS OR MIGHT BE
REVIVED BY REHEARINGS.  FOR SUCH INJURIES, WHEN THE STATEMENTS AMOUNT
TO DEFAMATION, A JUDGE HAS SUCH REMEDY IN DAMAGES FOR LIBEL AS DO OTHER
PUBLIC SERVANTS. 

IT IS SUGGESTED, HOWEVER, THAT EVEN THOUGH HIS INTELLECTUAL PROCESSES
CANNOT BE AFFECTED BY REFLECTIONS ON HIS PURPOSES, A JUDGE MAY BE
INFLUENCED BY A DESIRE TO PLACATE THE ACCUSING NEWSPAPER TO RETAIN
PUBLIC ESTEEM AND SECURE REELECTION PRESUMABLY AT THE COST OF UNFAIR
RULINGS AGAINST AN ACCUSED.  IN THIS CASE TOO MANY FINE-DRAWN
ASSUMPTIONS AGAINST THE INDEPENDENCE OF JUDICIAL ACTION MUST BE MADE TO
CALL SUCH A POSSIBILITY A CLEAR AND PRESENT DANGER TO JUSTICE.  FOR
THIS TO FOLLOW, THERE MUST BE A JUDGE OF LESS THAN ORDINARY FORTITUDE
WITHOUT FRIENDS OR SUPPORT OR A POWERFUL AND VINDICTIVE NEWSPAPER BENT
UPON A RULE OR RUIN POLICY, AND A PUBLIC UNCONCERNED WITH OR
UNINTERESTED IN THE TRUTH OR THE PROTECTION OF THEIR JUDICIAL
INSTITUTIONS.  IF, AS THE FLORIDA COURTS HAVE HELD AND AS WE HAVE
ASSUMED, THE PETITIONERS DELIBERATELY DISTORTED THE FACTS TO ABASE AND
DESTROY THE EFFICIENCY OF THE COURT, THOSE MISREPRESENTATIONS WITH THE
INDICATED MOTIVES MANIFESTED THEMSELVES IN THE LANGUAGE EMPLOYED BY
PETITIONERS IN THEIR EDITORIALS.  THE FLORIDA COURTS SEE IN THIS
OBJECTIONABLE LANGUAGE AN OPEN EFFORT TO USE PURPOSELY THE POWER OF THE
PRESS TO DESTROY WITHOUT REASON THE REPUTATION OF JUDGES AND THE
COMPETENCE OF COURTS.  THIS IS THE CLEAR AND PRESENT DANGER THEY FEAR
TO JUSTICE.  ALTHOUGH WE REALIZE THAT WE DO NOT HAVE THE SAME CLOSE
RELATIONS WITH THE PEOPLE OF FLORIDA THAT ARE ENJOYED BY THE FLORIDA
COURTS, WE HAVE NO DOUBT THAT FLORIDIANS IN GENERAL WOULD REACT TO
THESE EDITORIALS IN SUBSTANTIALLY THE SAME WAY AS CITIZENS OF OTHER
PARTS OF OUR COMMON COUNTRY. 

AS WE HAVE POINTED OUT, WE MUST WEIGH THE IMPACT OF THE WORDS AGAINST
THE PROTECTION GIVEN BY THE PRINCIPLES OF THE FIRST AMENDMENT, AS
ADOPTED BY THE FOURTEENTH, TO PUBLIC COMMENT ON PENDING COURT CASES. 
WE CONCLUDE THAT THE DANGER UNDER THIS RECORD TO FAIR JUDICIAL
ADMINISTRATION HAS NOT THE CLEARNESS AND IMMEDIACY NECESSARY TO CLOSE
THE DOOR OF PERMISSIBLE PUBLIC COMMENT.  WHEN THAT DOOR IS CLOSED, IT
CLOSES ALL DOORS BEHIND IT.  REVERSED. 

FN1  COMPARE SCHENCK V. UNITED STATES, 249 U.S. 47, 52; THORNHILL V.
ALABAMA, 310 U.S. 88, 105; CARLSON V. CALIFORNIA, 310 U.S. 106, 113;
BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 633. 

FN2  GITLOW V. NEW YORK, 268 U.S. 652, 666; NEAR V. MINNESOTA, 283
U.S. 697, 707. 

FN3  BRIDGES V. CALIFORNIA, 314 U.S. 252, 267.  COMPARE CHAMBERS V.
FLORIDA, 309 U.S. 227, 228; HOOVEN & ALLISON CO. V. EVATT, 324 U.S.
652, 659. 

FN4  NOVEMBER 2, 1944: 

"COURTS ARE ESTABLISHED -

                FOR THE PEOPLE 

"THE COURTS BELONG TO THE PEOPLE.  THE PEOPLE HAVE ESTABLISHED THEM
TO PROMOTE JUSTICE, INSURE OBEDIENCE TO THE LAW AND TO PUNISH THOSE WHO
WILLFULLY VIOLATE IT. 

"THE PEOPLE MAINTAIN THE COURTS BY PROVIDING THE SALARIES OF
OFFICIALS AND SETTING UP COSTLY CHAMBERS AND COURTROOMS FOR THE ORDERLY
AND DIGNIFIED PROCEDURE OF THE TRIBUNALS. 

"UPON THE JUDGES THE PEOPLE MUST DEPEND FOR THE DECISIONS AND THE
JUDICIAL CONDUCT THAT WILL INSURE SOCIETY - AS A WHOLE AND IN ITS
INDIVIDUALS - AGAINST THOSE WHO WOULD UNDERMINE OR DESTROY THE PEACE,
THE MORALITY AND THE ORDERLY LIVING OF THE COMMUNITY. 

"IN ORDER THAT THE COURTS SHOULD NOT BE AMENABLE TO POLITICAL OR
OTHER PRESSURES IN THEIR DETERMINATION OF MATTERS PLACED BEFORE THEM,
FLORIDA CIRCUIT JUDGES ARE CALLED UPON TO FACE THE ELECTORATE LESS
OFTEN THAN ARE OTHER ELECTIVE OFFICE HOLDERS. 

"SO LONG ARE THEIR TERMS, IN FACT, THAT IN DADE COUNTY NO CIRCUIT
JUDGE, AND ONLY ONE JUDGE OF ANOTHER COURT, HAS COME TO THE BENCH BY
PUBLIC CHOICE IN THE FIRST INSTANCE.  ALL THE OTHERS HAVE BEEN NAMED BY
A GOVERNOR TO FILL A VACANCY CAUSED BY DEATH OR RESIGNATION, OR SIMILAR
CIRCUMSTANCE. 

"JUDICIAL TERMS IN DADE COUNTY RUN: 

1 - SIX YEARS EACH FOR SIX CIRCUIT JUDGES. 

2 - FOUR YEARS EACH FOR TWO CIVIL COURT OF RECORD JUDGES. 

3 - FOUR YEARS FOR THE JUDGE OF THE CRIMINAL COURT OF RECORD. 

4 - FOUR YEARS FOR THE JUDGE OF THE COURT OF CRIMES. 

5 - FOUR YEARS FOR COUNTY JUDGE. 

6 - FOUR YEARS FOR JUVENILE COURT JUDGE. 

"THESE TWELVE JUDGES REPRESENT THE MAJESTY AND THE SANCTITY OF THE
LAW.  THEY ARE THE FIRST LINE OF DEFENSE LOCALLY OF ORGANIZED SOCIETY
AGAINST VICE, CORRUPTION AND CRIME, AND THE SINISTER MACHINATIONS OF
THE UNDERWORLD. 

"IT IS BEYOND QUESTION THAT AMERICAN COURTS ARE OF, BY AND FOR THE
PEOPLE. 

"EVERY ACCUSED PERSON HAS A RIGHT TO HIS DAY IN COURT.  BUT WHEN
JUDICIAL INSTANCE AND INTERPRETATIVE PROCEDURE RECOGNIZE AND ACCEPT,
EVEN GO OUT TO FIND, EVERY POSSIBLE TECHNICALITY OF THE LAW TO PROTECT
THE DEFENDANT, TO BLOCK, THWART, HINDER, EMBARRASS AND NULLIFY
PROSECUTION, THEN THE PEOPLE'S RIGHTS ARE JEOPARDIZED AND THE BASIC
REASON FOR COURTS STULTIFIED. 

"THE SEEMING EASE AND PAT FACILITY WITH WHICH THE CRIMINALLY CHARGED
HAVE BEEN GIVEN TECHNICAL SAFEGUARD HAVE SET PEOPLE TO WONDERING
WHETHER THEIR COURTS ARE BEING SUBVERTED INTO REFUGES FOR LAWBREAKERS. 

"THIS WEEK THE PEOPLE, THROUGH THEIR GRAND JURY, BROUGHT INTO COURT
EIGHT INDICTMENTS FOR RAPE.  JUDGE PAUL D. BARNS AGREED WITH THE
DEFENSE THAT THE INDICTMENTS WERE NOT PROPERLY DRAWN.  BACK THEY WENT
TO THE GRAND JURY FOR RE-PRESENTATION TO THE COURT. 

"ONLY IN THE GRAVEST EMERGENCY DOES A JUDGE TAKE OVER A CASE FROM
ANOTHER COURT OF EQUAL JURISDICTION.  A PADLOCK ACTION AGAINST THE
BROOK CLUB WAS INITIATED LAST SPRING BEFORE JUDGE GEORGE E. HOLT, WHO
GRANTED A TEMPORARY INJUNCTION. 

"AFTER FIVE MONTHS, THE CASE APPEARED TUESDAY OUT OF BLUE SKY BEFORE
JUDGE MARSHALL C. WISEHEART AT THE TIME STATE ATTORNEY STANLEY MILLEDGE
WAS ENGAGED WITH THE GRAND JURY. 

"SPEEDY DECISION WAS ASKED BY DEFENSE COUNSEL DESPITE MONTHS OF
STALLING.  THE STATE ATTORNEY HAD TO CHOOSE BETWEEN THE GRAND JURY AND
JUDGE WISEHEART'S COURT. 

"THE JUDGE DISMISSED THE INJUNCTION AGAINST THE CLUB AND ITS
OPERATORS.  THE DEFENSE GOT DELAY WHEN IT WANTED AND PROMPT DECISION
FROM THE COURT WHEN IT PROFITED IT. 

"ON OCT. 10 JUDGE HOLT HAD BEFORE HIM A SUIT BY THE STATE TO ABATE A
NUISANCE (BOOKMAKING) AT THE TEPEE CLUB. 

"FIVE AFFIDAVITS OF PERSONS WHO ALLEGEDLY VISITED THE PREMISES FOR
THE PURPOSE OF PLACING BETS WERE INTRODUCED BY THE STATE OVER THE
OBJECTION OF THE DEFENDANTS. 

"JUDGE HOLT RULED THEM OUT, EXPLAINING IN DENYING THE INJUNCTION
AGAINST THE TEPEE CLUB: 

"'THE DEFENDANT CANNOT CROSS-EXAMINE AN AFFIDAVIT.  THE COURT CANNOT
DETERMINE WHO IS TESTIFYING AND WHETHER BELIEF CAN BE PLACED UPON SUCH
TESTIMONY  ... THE FACT THAT SUCH AFFIDAVITS WERE TAKEN BEFORE THE
STATE ATTORNEY DOES NOT GIVE THEM ANY ADDITIONAL WEIGHT OR VALUE.' 

"THIS MAY BE GOOD LAW, EXACT JUDICIAL EVALUATION OF THE STATUTES.  IT
IS, HOWEVER, THE CHARACTER OF LEGAL INTERPRETATION WHICH CAUSES PEOPLE
TO RAISE QUESTIONING EYEBROWS AND SHAKE CONFUSED HEADS IN FUTILE
WONDERMENT. 

"IF TECHNICALITIES ARE TO BE THE ORDER AND THE WAY FOR THE CRIMINALLY
CHARGED EITHER TO AVOID JUSTICE ALTOGETHER OR SO TO DELAY PROSECUTION
AS TO CRIPPLE IT, THEN IT BEHOOVES OUR COURTS AND THE LEGAL PROFESSION
TO CUT AWAY THE DEADWOOD AND THE ENTANGLEMENTS. 

"MAKE IT POSSIBLE FOR THE STATE'S CASE, THE PEOPLE'S CASE, TO BE SEEN
WITH EQUAL CLARITY OF JUDICIAL VISION AS THAT ACCORDED ACCUSED
LAWBREAKERS.  OTHERWISE TECHNICALITIES AND THE COURTS MAKE THE LAW, NO
MATTER WHAT THE WILL OF THE PEOPLE AND OF THEIR LEGISLATORS." 

NOVEMBER 7, 1944: 

"WHY PEOPLE WONDER 

"HERE IS AN EXAMPLE OF WHY PEOPLE WONDER ABOUT THE LAW'S DELAYS AND
OBSTRUCTING TECHNICALITIES OPERATING TO THE DISADVANTAGE OF THE STATE -
WHICH IS THE PEOPLE - IN PROSECUTIONS.    "AFTER STALLING ALONG FOR
MONTHS, THE DEFENSE IN THE PADLOCK CASE AGAINST THE BROOK CLUB APPEARED
BEFORE JUDGE MARSHALL C. WISEHEART FOR A DECISION.  THE STATE ATTORNEY
WAS WORKING WITH THE GRAND JURY.  THE COURT KNOCKED OUT THE
INJUNCTION.  THERE WAS SPEED, DISPATCH, IMMEDIATE ATTENTION AND ACTION
FOR THOSE CHARGED WITH VIOLATION OF THE LAW.  SO FAST THAT THE PEOPLE
DIDN'T GET IN A PEEP. 

"THAT'S ONE WAY OF GUMMING UP PROSECUTION.  ANOTHER IS TO DELAY
ACTION.  ON MARCH 29, COY L. JAGGEARS, BUS DRIVER, WAS SENTENCED TO
FIFTEEN DAYS IN CITY JAIL BY JUDGE CECIL C. CURRY ON CONVICTION OF
BEATING UP A TAXICAB OPERATOR.   "THE ARREST PRECIPITATED THE NOTORIOUS
BUS STRIKE.  AS A RESULT, JAGGEARS WALKED OUT OF JAIL AFTER POSTING A
$200 APPEAL BOND.  THE APPEAL NEVER GOT FURTHER. 

"THERE YOU HAVE THE LEGAL PARADOX, WORKING TWO WAYS, BUT TO THE SAME
PURPOSE AGAINST PROSECUTION.  SPEED WHEN NEEDED.  MONTH AFTER MONTH OF
DELAY WHEN THAT SERVES THE BETTER." 

FN5  156 FLA. 227, 239, 240, 22 SO.2D 875, 882: 

"SO THE VICE IN BOTH THE EDITORIALS WAS THE DISTORTED, INACCURATE
STATEMENT OF THE FACTS AND WITH THAT STATEMENT WERE SCRAMBLED FALSE
INSINUATIONS THAT AMOUNTED TO UNWARRANTED CHARGES OF PARTISANSHIP AND
UNFAIRNESS ON THE PART OF THE JUDGES. 

"THE RECORD WAS AVAILABLE IN ALL THESE CASES AND IT DOES NOT REVEAL A
BREATH OF SUSPICION ON WHICH TO PREDICATE PARTISANSHIP AND UNFAIRNESS
ON THE PART OF THE JUDGES.  IT IS SHOWN RATHER THAT THEY ACTED IN GOOD
FAITH AND HANDLED EACH CASE TO THE VERY BEST ADVANTAGE POSSIBLE.  THERE
WAS NO JUDGMENT THAT COULD HAVE BEEN ENTERED IN ANY OF THEM EXCEPT THE
ONE THAT WAS ENTERED.  IF THE EDITORIALS HAD STATED THE FACTS
CORRECTLY, NOTHING BUT A CORRECT CONCLUSION COULD HAVE BEEN DEDUCED AND
THERE WOULD HAVE BEEN NO BASIS FOR CONTEMPT BUT HERE THEY ELECTED TO
PUBLISH AS TRUTH A MIXTURE OF FACTUAL MISSTATEMENT AND OMISSION AND
IMPOSE ON THAT FALSE INSINUATION, DISTORTION, AND DECEPTION AND THEN
CONTEND THAT FREEDOM OF THE PRESS IMMUNIZES THEM FROM PUNISHMENT." 

FN6  156 FLA. 227, 244-249, 22 SO.2D 875, 884-886: 

"A NEWSPAPER MAY CRITICIZE, HARASS, IRRITATE, OR VENT ITS SPLEEN
AGAINST A PERSON WHO HOLDS THE OFFICE OF JUDGE IN THE SAME MANNER THAT
IT DOES A MEMBER OF THE LEGISLATURE AND OTHER ELECTIVE OFFICERS, BUT IT
MAY NOT PUBLISH SCURRILOUS OR LIBELOUS CRITICISMS OF A PRESIDING JUDGE
AS SUCH OR HIS JUDGMENTS FOR THE PURPOSE OF DISCREDITING THE COURT IN
THE EYES OF THE PUBLIC.  RESPECT FOR COURTS IS NOT INSPIRED BY
SHIELDING THEM FROM CRITICISM.  THIS IS A RESPONSIBILITY OF THE JUDGE,
ACQUIRED OVER THE YEARS BY THE SPIRIT IN WHICH HE APPROACHES THE
JUDICIAL PROCESS, HIS ABILITY TO HUMANIZE THE LAW AND SQUARE IT WITH
REASON, THE LEVEL OF HIS THINKING, THE CONSISTENCY OF HIS ADHERENCE TO
RIGHT AND JUSTICE, AND THE DEGREE TO WHICH HE HOLDS HIMSELF ALOOF FROM
BLOCS, GROUPS, AND TECHNIQUES THAT WOULD SACRIFICE JUSTICE FOR
EXPEDIENCY." 

"COURTS CANNOT FUNCTION IN A FREE COUNTRY WHEN THE ATMOSPHERE IS
CHARGED WITH THE EFFUSIONS OF A PRESS DESIGNED TO POISON THE MIND OF
THE PUBLIC AGAINST THE PRESIDING JUDGES RATHER THAN TO CLARIFY THE
ISSUES AND PROPAGATE THE TRUTH ABOUT THEM.  THE LATTER WAS THE PRESS
THAT MR. JEFFERSON VISIONED WHEN HE PROMULGATED THE THESIS, 'OUR
LIBERTY DEPENDS ON THE FREEDOM OF THE PRESS AND THAT CANNOT BE LIMITED
WITHOUT BEING LOST.'" 

"FREEDOM TO PUBLISH ONE'S VIEWS IS A PRINCIPLE OF UNIVERSAL PRACTICE,
BUT WHEN THE PRESS DELIBERATELY ABANDONS THE PROPRIETIES AND SETS OUT
TO POISON ITS PABULUM OR TO SOW DRAGONS' TEETH AND DISPENSE CANARDS FOR
THE PURPOSE OF DOING ANOTHER A WRONG, IT IS NO DIFFERENT CATEGORY FROM
A FREE MAN THAT DOES LIKEWISE.  THE MOST RIGID SAFEGUARD THROWN AROUND
A FREE PRESS WOULD NOT PROTECT APPELLANTS FROM FALSELY PUBLISHING OR
ANNOUNCING TO THE WORLD THAT THE CLERGY OF MIAMI WERE IN SYMPATHY WITH
THE PRACTICE OF POLYGAMY OR WERE FOSTERING OTHER DOCTRINES EQUALLY
OBNOXIOUS TO APPROVED MORAL STANDARDS." 

"THE THEORY OF OUR SYSTEM OF FAIR TRIAL IS THAT THE DETERMINATION OF
EVERY CASE SHOULD BE INDUCED SOLELY BY EVIDENCE AND ARGUMENT IN OPEN
COURT AND THE LAW APPLICABLE THERETO AND NOT BY ANY OUTSIDE INFLUENCE,
WHETHER OF PRIVATE TALK OR PUBLIC PRINT." 

"THE STATE COURTS TOUCH THE PUBLIC MUCH MORE FREQUENTLY THAN THE
FEDERAL COURTS AND THEY HAVE MANY REASONS TO ENFORCE ORDERLY
ADMINISTRATION THAT WOULD NOT ARISE IN THE FEDERAL COURTS.  IF THAT
POWER IS TO BE CONSTRUED BY WHAT APPELLANTS CONTEND TO BE THE PATTERN
IN THE BRIDGES AND NYE CASES, THEN MORE THAN ONE HUNDRED YEARS OF STATE
LAW AND DECISIONS ON THE SUBJECT ARE TURNED INTO CONFUSION OR SET AT
NAUGHT.... 

"WE DO NOT THINK THIS CAN BE THE LAW.  THE BRIDGES CASE WAS DISPOSED
OF ON AUTHORITY OF THE '"CLEAR AND PRESENT DANGER" CASES,' WHICH ARE
NOT ANALOGOUS TO MOST OF THE STATE CASES BECAUSE THEY ARISE FROM A
DIFFERENT STATE OF THE LAW.  THE ULTIMATE TEST IN THE BRIDGES CASE
REQUIRES THAT THE 'SUBSTANTIVE EVIL MUST BE EXTREMELY SERIOUS AND THE
DEGREE OF IMMINENCE EXTREMELY HIGH BEFORE UTTERANCES CAN BE PUNISHED.' 
EVEN IF THIS TEST IS TO (BE) THE RULE IN THE STATE COURTS, THEY ARE
AUTHORIZED TO APPLY IT BY THEIR OWN LAW AND STANDARDS AND UNLESS THE
APPLICATION IS SHOWN TO BE ARBITRARY AND UNREASONABLE, THEIR JUDGMENT
SHOULD NOT BE DISTURBED.  THE LAW IN FLORIDA PERMITS THE MOST LIBERAL
EXERCISE POSSIBLE OF FREEDOM OF THE PRESS BUT HOLDS TO ACCOUNT THOSE
WHO ABUSE IT. 

"WE THEREFORE HOLD THAT THE CARTOON AND THE EDITORIALS AFFORD AMPLE
SUPPORT FOR THE JUDGMENT IMPOSED AND THAT THE ISSUES WERE PROPERLY
ADJUDICATED UNDER FLORIDA LAW." 

FN7  SEE IX WIGMORE, EVIDENCE (3D ED.)  SEC.  2557.  CRAWFORD V.
UNITED STATES, 212 U.S. 183, 203. 

FN8  DRIVERS UNION V. MEADOWMOOR CO., 312 U.S. 287, 293-94; LISENBA
V. CALIFORNIA, 314 U.S. 219, 238. 

FN9  CHAMBERS V. FLORIDA, 309 U.S. 227, 239; ASHCRAFT V. TENNESSEE,
322 U.S. 143, 152, 153, 154; MALINSKI V. NEW YORK, 324 U.S. 401, 404. 

FN10  SEE THE CASES IN THE PRECEDING PARAGRAPH, NOTE 8. 

FN11  MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 115; BOARD OF EDUCATION
V. BARNETTE, 319 U.S. 624, 639; THOMAS V. COLLINS, 323 U.S. 516, 527,
530. 

FN12  BRIDGES V. CALIFORNIA, 314 U.S. AT 269: 

"NO SUGGESTION CAN BE FOUND IN THE CONSTITUTION THAT THE FREEDOM
THERE GUARANTEED FOR SPEECH AND THE PRESS BEARS AN INVERSE RATIO TO THE
TIMELINESS AND IMPORTANCE OF THE IDEAS SEEKING EXPRESSION.  YET, IT
WOULD FOLLOW AS A PRACTICAL RESULT OF THE DECISIONS BELOW THAT ANYONE
WHO MIGHT WISH TO GIVE PUBLIC EXPRESSION TO HIS VIEWS ON A PENDING CASE
INVOLVING NO MATTER WHAT PROBLEM OF PUBLIC INTEREST, JUST AT THE TIME
HIS AUDIENCE WOULD BE MOST RECEPTIVE, WOULD BE AS EFFECTIVELY
DISCOURAGED AS IF A DELIBERATE STATUTORY SCHEME OF CENSORSHIP HAD BEEN
ADOPTED." 

FN13  "THESE RESPONDENTS DENY ANY INTENT BY EITHER SAID EDITORIAL OR
SAID CARTOON EITHER IN WORDS OR OTHERWISE TO INTERFERE WITH FAIR AND
IMPARTIAL JUSTICE IN THE STATE OF FLORIDA AND DENY THAT THE LARGE
CHARACTER IN THE CARTOON WAS BESIDE THE JUDGE AND ON THE BENCH AND
BEING HEARD, RECOGNIZED AND FAVORED, BUT, ON THE CONTRARY, THESE
RESPONDENTS RESPECTFULLY SHOW THAT IT WAS THE INTENTION OF SAID
EDITORIAL AND SAID CARTOON TO CONDEMN AND CRITICISE THE SYSTEM OF
PLEADING AND PRACTICE AND PROCEDURE CREATED BY THE LAWS OF FLORIDA,
WHEREBY SUCH CASES COULD LONG BE DELAYED AND THEN COULD BE DISMISSED
UPON TECHNICAL GROUNDS IN THE MANNER HEREIN SHOWN." 

WE ADD MR. PENNEKAMP'S STATEMENT OF THE EDITORIAL POLICY OF THE MIAMI
HERALD: 

"'WE ARE OURSELVES FREE - FREE AS THE CONSTITUTION WE ENJOY - FREE TO
TRUTH, GOOD MANNERS AND GOOD SENSE.  WE SHALL BE FOR WHATEVER MEASURE
IS BEST ADAPTED TO DEFENDING THE RIGHTS AND LIBERTIES OF THE PEOPLE AND
ADVANCING USEFUL KNOWLEDGE.  WE SHALL LABOR AT ALL TIMES TO INSPIRE THE
PEOPLE WITH A JUST AND PROPER SENSE OF THEIR CONDITION, TO POINT OUT TO
THEM THEIR TRUE INTEREST AND ROUSE THEM TO PURSUE IT.'" 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

ON THE BASIS OF TWO EDITORIALS AND A CARTOON, THE CIRCUIT COURT OF
FLORIDA FOR THE COUNTY OF DADE FOUND THE PUBLISHER OF THE MIAMI HERALD
AND ONE OF ITS EDITORS GUILTY OF CONTEMPT OF COURT.  FN1  THE EDITOR,
PENNEKAMP, WAS FINED $250 AND THE PUBLISHING COMPANY, $1,000.  DEEMING
BRIDGES V. CALIFORNIA, 314 U.S. 252, NOT CONTROLLING, THE SUPREME COURT
OF FLORIDA, WITH TWO JUDGES DISSENTING, SUSTAINED THE CONVICTIONS.  156
FLA. 227, 22 SO.2D 875. 

IN THE BRIDGES CASE THIS COURT RECENTLY CANVASSED CONSTITUTIONAL
ASPECTS OF CONTEMPT OF COURT BY PUBLICATION.  BUT IT WAS HARDLY TO BE
EXPECTED THAT OTHER PROBLEMS IN THE LARGE FIELD WITHIN WHICH THE
BRIDGES CASE MOVED WOULD NOT RECUR.  THIS COURT SITS TO INTERPRET, IN
APPROPRIATE JUDICIAL CONTROVERSIES, A CONSTITUTION WHICH IN ITS BILL OF
RIGHTS FORMULATES THE CONDITIONS OF A DEMOCRACY.  BUT DEMOCRACY IS THE
LEAST STATIC FORM OF SOCIETY.  ITS BASIS IS REASON NOT AUTHORITY. 
FORMULAS EMBODYING VAGUE AND UNCRITICAL GENERALIZATIONS OFFER TEMPTING
OPPORTUNITIES TO EVADE THE NEED FOR CONTINUOUS THOUGHT.  BUT SO LONG AS
MEN WANT FREEDOM THEY RESIST THIS TEMPTATION.  SUCH FORMULAS ARE MOST
BEGUILING AND MOST MISCHIEVOUS WHEN CONTENDING CLAIMS ARE THOSE NOT OF
RIGHT AND WRONG BUT OF TWO RIGHTS, EACH HIGHLY IMPORTANT TO THE WELL
BEING OF SOCIETY.  SELDOM IS THERE AVAILABLE A PAT FORMULA THAT
ADEQUATELY ANALYZES SUCH A PROBLEM, LEAST OF ALL SOLVES IT.  CERTAINLY
NO SUCH FORMULA FURNISHES A READY ANSWER TO THE QUESTION NOW HERE FOR
DECISION OR EVEN EXPOSES ITS TRUE ELEMENTS.  THE PRECISE ISSUE IS
WHETHER, AND TO WHAT EXTENT, A STATE CAN PROTECT THE ADMINISTRATION OF
JUSTICE BY AUTHORIZING PROMPT PUNISHMENT, WITHOUT THE INTERVENTION OF A
JURY, OF PUBLICATIONS OUT OF COURT THAT MAY INTERFERE WITH A COURT'S
DISPOSITION OF PENDING LITIGATION. 

THE DECISION IN THE BRIDGES CASE DID NOT EXPLICITLY DENY TO THE
STATES THE RIGHT TO PROTECT THE JUDICIAL PROCESS FROM INTERFERENCE BY
MEANS OF A PUBLICATION BEARING ON A PENDING LITIGATION.  THE ATMOSPHERE
AND EMANATIONS OF THE COURT'S OPINION, HOWEVER, WERE CALCULATED TO
SANCTION ANYTHING TO BE SAID OR WRITTEN OUTSIDE THE COURTROOM EVEN
THOUGH IT MAY HURT OR EMBARRASS THE JUST OUTCOME OF A PROCEEDING.  BUT
IN A SERIES OF DECISIONS WHICH PRESENTED MOST SHARPLY THE
CONSTITUTIONAL EXTENT OF FREEDOM OF SPEECH, THIS COURT HAD HELD THAT
THE CONSTITUTION DID NOT ALLOW ABSOLUTE FREEDOM OF EXPRESSION - A
FREEDOM UNRESTRICTED BY THE DUTY TO RESPECT OTHER NEEDS FULFILLMENT OF
WHICH MAKES FOR THE DIGNITY AND SECURITY OF MAN.  SCHENCK V. UNITED
STATES, 249 U.S. 47; FROHWERK V. UNITED STATES, 249 U.S. 204; DEBS V.
UNITED STATES, 249 U.S. 211. 

NO JUSTICE THOUGHT MORE DEEPLY ABOUT THE NATURE OF A FREE SOCIETY OR
WAS MORE ZEALOUS TO SAFEGUARD ITS CONDITIONS BY THE MOST ABUNDANT
REGARD FOR CIVIL LIBERTY THAN MR. JUSTICE HOLMES.  HE LEFT NO DOUBT
THAT JUDICIAL PROTECTION OF FREEDOM OF UTTERANCE IS NECESSARILY
QUALIFIED BY THE REQUIREMENTS OF THE CONSTITUTION AS AN ENTIRETY FOR
THE MAINTENANCE OF A FREE SOCIETY.  IT DOES AN ILL-SERVICE TO THE
AUTHOR OF THE MOST QUOTED JUDICIAL PHRASES REGARDING FREEDOM OF SPEECH,
TO MAKE HIM THE VICTIM OF A TENDENCY WHICH HE FOUGHT ALL HIS LIFE,
WHEREBY PHRASES ARE MADE TO DO SERVICE FOR CRITICAL ANALYSIS BY BEING
TURNED INTO DOGMA.  "IT IS ONE OF THE MISFORTUNES OF THE LAW THAT IDEAS
BECOME ENCYSTED IN PHRASES AND THEREAFTER FOR A LONG TIME CEASE TO
PROVOKE FURTHER ANALYSIS."  HOLMES, J., DISSENTING, IN HYDE V. UNITED
STATES, 225 U.S. 347, 384, AT 391.  WORDS WHICH "ARE USED IN SUCH
CIRCUMSTANCES AND ARE OF SUCH A NATURE AS TO CREATE A CLEAR AND PRESENT
DANGER THAT THEY WILL BRING ABOUT THE SUBSTANTIVE EVILS THAT CONGRESS
HAS A RIGHT TO PREVENT," SCHENCK V. UNITED STATES, 249 U.S. 47, 52,
SPEAK THEIR OWN CONDEMNATION.  BUT IT DOES VIOLENCE TO THE JURISTIC
PHILOSOPHY AND THE JUDICIAL PRACTICE OF MR. JUSTICE HOLMES TO ASSUME
THAT IN USING THE PHRASE "A CLEAR AND PRESENT DANGER" HE WAS EXPRESSING
EVEN REMOTELY AN ABSOLUTIST TEST OR HAD IN MIND A DANGER IN THE
ABSTRACT.  HE FOLLOWED THE OBSERVATION JUST QUOTED BY THE EMPHATIC
STATEMENT THAT THE QUESTION IS ONE "OF PROXIMITY AND DEGREE," AS HE
CONCEIVED TO BE MOST QUESTIONS IN CONNECTION WITH THE LARGE, UNDEFINED
RIGHTS GUARANTEED BY THE CONSTITUTION.  AND MR. JUSTICE BRANDEIS, CO
ARCHITECT OF THE GREAT CONSTITUTIONAL STRUCTURE OF CIVIL LIBERTIES,
ALSO RECOGNIZED THAT "THE PERMISSIBLE CURTAILMENT OF FREE SPEECH IS
...  ONE OF DEGREE.  AND BECAUSE IT IS A QUESTION OF DEGREE THE FIELD
IN WHICH THE JURY MAY EXERCISE ITS JUDGMENT IS, NECESSARILY, A WIDE
ONE."  SCHAEFER V. UNITED STATES, 251 U.S. 466, 482, AT
483(DISSENTING).  IF MR. JUSTICE BRANDEIS' CONSTITUTIONAL PHILOSOPHY
MEANS ANYTHING, IT IS CLEAR BEYOND PERADVENTURE THAT HE WOULD NOT DENY
TO A STATE, EXERCISING ITS JUDGMENT AS TO THE MODE BY WHICH SPEECH MAY
BE CURTAILED BY PUNISHMENT SUBSEQUENT TO ITS UTTERANCE, A FIELD LESS
WIDE THAN THAT WHICH HE PERMITTED A JURY IN A FEDERAL COURT. 

"CLEAR AND PRESENT DANGER" WAS NEVER USED BY MR. JUSTICE HOLMES TO
EXPRESS A TECHNICAL LEGAL DOCTRINE OR TO CONVEY A FORMULA FOR
ADJUDICATING CASES.  IT WAS A LITERARY PHRASE NOT TO BE DISTORTED BY
BEING TAKEN FROM ITS CONTEXT.  IN ITS SETTING IT SERVED TO INDICATE THE
IMPORTANCE OF FREEDOM OF SPEECH TO A FREE SOCIETY BUT ALSO TO EMPHASIZE
THAT ITS EXERCISE MUST BE COMPATIBLE WITH THE PRESERVATION OF OTHER
FREEDOMS ESSENTIAL TO A DEMOCRACY AND GUARANTEED BY OUR CONSTITUTION. 
WHEN THOSE OTHER ATTRIBUTES OF A DEMOCRACY ARE THREATENED BY SPEECH,
THE CONSTITUTION DOES NOT DENY POWER TO THE STATES TO CURB IT.  "THE
CLEAR AND PRESENT DANGER" TO BE ARRESTED MAY BE DANGER SHORT OF A
THREAT AS COMPREHENSIVE AND VAGUE AS A THREAT TO THE SAFETY OF THE
REPUBLIC OR "THE AMERICAN WAY OF LIFE."  NEITHER MR. JUSTICE HOLMES NOR
MR. JUSTICE BRANDEIS NOR THIS COURT EVER SUGGESTED IN ALL THE CASES
THAT AROSE IN CONNECTION WITH THE FIRST WORLD WAR, THAT ONLY IMMINENT
THREATS TO THE IMMEDIATE SECURITY OF THE COUNTRY WOULD AUTHORIZE COURTS
TO SUSTAIN LEGISLATION CURTAILING UTTERANCE.  SUCH FORCES OF
DESTRUCTION ARE OF AN ORDER OF MAGNITUDE WHICH COURTS ARE HARDLY
DESIGNED TO COUNTER.  "THE CLEAR AND PRESENT DANGER" WITH WHICH ITS TWO
GREAT JUDICIAL EXPONENTS WERE CONCERNED WAS A CLEAR AND PRESENT DANGER
THAT UTTERANCE "WOULD BRING ABOUT THE EVIL WHICH CONGRESS SOUGHT AND
HAD A RIGHT TO PREVENT."  SCHAEFER V. UNITED STATES, SUPRA.  AMONG "THE
SUBSTANTIVE EVILS" WITH WHICH LEGISLATION MAY DEAL IS THE HAMPERING OF
A COURT IN A PENDING CONTROVERSY, BECAUSE THE FAIR ADMINISTRATION OF
JUSTICE IS ONE OF THE CHIEF TESTS OF A TRUE DEMOCRACY.  AND SINCE MEN
EQUALLY DEVOTED TO THE VITAL IMPORTANCE OF FREEDOM OF SPEECH MAY FAIRLY
DIFFER IN AN ESTIMATE OF THIS DANGER IN A PARTICULAR CASE, THE FIELD IN
WHICH A STATE "MAY EXERCISE ITS JUDGMENT IS, NECESSARILY, A WIDE ONE." 
THEREFORE, EVERY TIME A SITUATION LIKE THE PRESENT ONE COMES HERE THE
PRECISE PROBLEM BEFORE US IS TO DETERMINE WHETHER THE STATE COURT WENT
BEYOND THE ALLOWABLE LIMITS OF JUDGMENT IN HOLDING THAT CONDUCT WHICH
HAS BEEN PUNISHED AS A CONTEMPT WAS REASONABLY CALCULATED TO ENDANGER A
STATE'S DUTY TO ADMINISTER IMPARTIAL JUSTICE IN A PENDING CONTROVERSY. 

WITHOUT A FREE PRESS THERE CAN BE NO FREE SOCIETY.  FN2  FREEDOM OF
THE PRESS, HOWEVER, IS NOT AN END IN ITSELF BUT A MEANS TO THE END OF A
FREE SOCIETY.  THE SCOPE AND NATURE OF THE CONSTITUTIONAL PROTECTION OF
FREEDOM OF SPEECH MUST BE VIEWED IN THAT LIGHT AND IN THAT LIGHT
APPLIED.  THE INDEPENDENCE OF THE JUDICIARY IS NO LESS A MEANS TO THE
END OF A FREE SOCIETY, AND THE PROPER FUNCTIONING OF AN INDEPENDENT
JUDICIARY PUTS THE FREEDOM OF THE PRESS IN ITS PROPER PERSPECTIVE.  FOR
THE JUDICIARY CANNOT FUNCTION PROPERLY IF WHAT THE PRESS DOES IS
REASONABLY CALCULATED TO DISTURB THE JUDICIAL JUDGMENT IN ITS DUTY AND
CAPACITY TO ACT SOLELY ON THE BASIS OF WHAT IS BEFORE THE COURT.  A
JUDICIARY IS NOT INDEPENDENT UNLESS COURTS OF JUSTICE ARE ENABLED TO
ADMINISTER LAW BY ABSENCE OF PRESSURE FROM WITHOUT, WHETHER EXERTED
THROUGH THE BLANDISHMENTS OF REWARD OR THE MENACE OF DISFAVOR.  IN THE
NOBLE WORDS, PENNED BY JOHN ADAMS, OF THE FIRST CONSTITUTION OF
MASSACHUSETTS:  "IT IS ESSENTIAL TO THE PRESERVATION OF THE RIGHTS OF
EVERY INDIVIDUAL, HIS LIFE, LIBERTY, PROPERTY, AND CHARACTER, THAT
THERE BE AN IMPARTIAL INTERPRETATION OF THE LAWS, AND ADMINISTRATION OF
JUSTICE.  IT IS THE RIGHT OF EVERY CITIZEN TO BE TRIED BY JUDGES AS
FREE, IMPARTIAL, AND INDEPENDENT AS THE LOT OF HUMANITY WILL ADMIT." 
FN3  A FREE PRESS IS NOT TO BE PREFERRED TO AN INDEPENDENT JUDICIARY,
NOR AN INDEPENDENT JUDICIARY TO A FREE PRESS.  NEITHER HAS PRIMACY OVER
THE OTHER; BOTH ARE INDISPENSABLE TO A FREE SOCIETY.  THE FREEDOM OF
THE PRESS IN ITSELF PRESUPPOSES AN INDEPENDENT JUDICIARY THROUGH WHICH
THAT FREEDOM MAY, IF NECESSARY, BE VINDICATED.  AND ONE OF THE POTENT
MEANS FOR ASSURING JUDGES THEIR INDEPENDENCE IS A FREE PRESS. 

A FREE PRESS IS VITAL TO A DEMOCRATIC SOCIETY BECAUSE ITS FREEDOM
GIVES IT POWER.  POWER IN A DEMOCRACY IMPLIES RESPONSIBILITY IN ITS
EXERCISE.  NO INSTITUTION IN A DEMOCRACY, EITHER GOVERNMENTAL OR
PRIVATE, CAN HAVE ABSOLUTE POWER.  FN4 NOR CAN THE LIMITS OF POWER
WHICH ENFORCE RESPONSIBILITY BE FINALLY DETERMINED BY THE LIMITED POWER
ITSELF.  SEE CARL L. BECKER, FREEDOM AND RESPONSIBILITY IN THE AMERICAN
WAY OF LIFE (1945).  IN PLAIN ENGLISH, FREEDOM CARRIES WITH IT
RESPONSIBILITY EVEN FOR THE PRESS; FREEDOM OF THE PRESS IS NOT A
FREEDOM FROM RESPONSIBILITY FOR ITS EXERCISE.  MOST STATE CONSTITUTIONS
EXPRESSLY PROVIDE FOR LIABILITY FOR ABUSE OF THE PRESS'S FREEDOM.  THAT
THERE WAS SUCH LEGAL LIABILITY WAS SO TAKEN FOR GRANTED BY THE FRAMERS
OF THE FIRST AMENDMENT THAT IT WAS NOT SPELLED OUT.  RESPONSIBILITY FOR
ITS ABUSE WAS IMBEDDED IN THE LAW.  FN5 THE FIRST AMENDMENT SAFEGUARDED
THE RIGHT. 

THESE ARE GENERALITIES.  BUT THEY ARE GENERALITIES OF THE MOST
PRACTICAL IMPORTANCE IN ACHIEVING A PROPER ADJUSTMENT BETWEEN A FREE
PRESS AND AN INDEPENDENT JUDICIARY. 

ESPECIALLY IN THE ADMINISTRATION OF THE CRIMINAL LAW - THAT MOST
AWESOME ASPECT OF GOVERNMENT - SOCIETY NEEDS INDEPENDENT COURTS OF
JUSTICE.  THIS MEANS JUDGES FREE FROM CONTROL BY THE EXECUTIVE, FREE
FROM ALL TIES WITH POLITICAL INTERESTS, FREE FROM ALL FEARS OF REPRISAL
OR HOPES OF REWARD.  THE SAFETY OF SOCIETY AND THE SECURITY OF THE
INNOCENT ALIKE DEPEND UPON WISE AND IMPARTIAL CRIMINAL JUSTICE.  MISUSE
OF ITS MACHINERY MAY UNDERMINE THE SAFETY OF THE STATE; ITS MISUSE MAY
DEPRIVE THE INDIVIDUAL OF ALL THAT MAKES A FREE MAN'S LIFE DEAR.  FN6 

CRITICISM THEREFORE MUST NOT FEEL CRAMPED, EVEN CRITICISM OF THE
ADMINISTRATION OF CRIMINAL JUSTICE.  WEAK CHARACTERS OUGHT NOT TO BE
JUDGES, AND THE SCOPE ALLOWED TO THE PRESS FOR SOCIETY'S SAKE MAY
ASSUME THAT THEY ARE NOT.  NO JUDGE FIT TO BE ONE IS LIKELY TO BE
INFLUENCED CONSCIOUSLY EXCEPT BY WHAT HE SEES AND HEARS IN COURT AND BY
WHAT IS JUDICIALLY APPROPRIATE FOR HIS DELIBERATIONS.  HOWEVER, JUDGES
ARE ALSO HUMAN, AND WE KNOW BETTER THAN DID OUR FORBEARS HOW POWERFUL
IS THE PULL OF THE UNCONSCIOUS AND HOW TREACHEROUS THE RATIONAL
PROCESS.  WHILE THE RAMPARTS OF REASON HAVE BEEN FOUND TO BE MORE
FRAGILE THAN THE AGE OF ENLIGHTENMENT HAD SUPPOSED, THE MEANS FOR
AROUSING PASSION AND CONFUSING JUDGMENT HAVE BEEN REINFORCED.  AND
SINCE JUDGES, HOWEVER STALWART, ARE HUMAN, THE DELICATE TASK OF
ADMINISTERING JUSTICE OUGHT NOT TO BE MADE UNDULY DIFFICULT BY
IRRESPONSIBLE PRINT. 

THE ENGLISH BENCH IS JUSTLY NOTED FOR ITS STURDINESS, AND IT WAS NO
WEAK-KNEED JUDGE WHO RECENTLY ANALYZED THE MISCHIEF OF EXPOSING EVEN
THE HARDIEST NATURE TO EXTRANEOUS INFLUENCE: "...  I THINK IT IS A
FALLACY TO SAY OR TO ASSUME THAT THE PRESIDING JUDGE IS A PERSON WHO
CANNOT BE AFFECTED BY OUTSIDE INFORMATION.  HE IS A HUMAN BEING, AND
WHILE I DO NOT SUGGEST THAT IT IS LIKELY THAT ANY JUDGE, AS THE RESULT
OF INFORMATION WHICH HAD BEEN IMPROPERLY CONVEYED TO HIM, WOULD GIVE A
DECISION WHICH OTHERWISE HE WOULD NOT HAVE GIVEN, IT IS EMBARRASSING TO
A JUDGE THAT HE SHOULD BE INFORMED OF MATTERS WHICH HE WOULD MUCH
RATHER NOT HEAR AND WHICH MAKE IT MUCH MORE DIFFICULT FOR HIM TO DO HIS
DUTY.  TO REPEAT THE WORDS I HAVE ALREADY READ FROM THE JUDGMENT OF
WILLS J. IN REX V. PARKE ((1903) 2 K.B. 432).  'THE REASON WHY THE
PUBLICATION OF ARTICLES LIKE THOSE WITH WHICH WE HAVE TO DEAL IS
TREATED AS A CONTEMPT OF COURT IS BECAUSE THEIR TENDENCY AND SOMETIMES
THEIR OBJECT IS TO DEPRIVE THE COURT OF THE POWER OF DOING THAT WHICH
IS THE END FOR WHICH IT EXISTS - NAMELY, TO ADMINISTER JUSTICE DULY,
IMPARTIALLY, AND WITH REFERENCE SOLELY TO THE FACTS JUDICIALLY BROUGHT
BEFORE IT.'...  I VENTURE TO THINK THAT NO JUDGE WITH LONG CRIMINAL
EXPERIENCE WILL FAIL TO BE ABLE TO RECALL INSTANCES IN WHICH THE
PUBLICATION OF MATTERS SUCH AS THAT TO WHICH I HAVE REFERRED HAS HAD
THE EFFECT OF MAKING THE TASK OF A JUDGE EXTREMELY DIFFICULT, AND NO
ONE HAS THE RIGHT TO PUBLISH MATTER WHICH WILL HAVE THAT EFFECT." 
HUMPHREYS, J., IN REX V. DAVIES, (1945) 1 K.B. 435, 442-43.  THE
OBSERVATIONS OF ANOTHER JUDGE IN THE SAME CASE BEAR QUOTING:  "...
JURORS ARE NOT THE ONLY PEOPLE WHOSE MINDS CAN BE AFFECTED BY
PREJUDICE.  ONE OF THE EVILS OF INADMISSIBLE MATTER BEING DISSEMINATED
IS THAT NO ONE CAN TELL WHAT EFFECT A PARTICULAR PIECE OF INFORMATION
MAY HAVE ON HIS MIND.  WHY, AS MY LORD HAS ASKED, AND I CAN THINK OF NO
BETTER WORD, SHOULD A JUDGE BE 'EMBARRASSED' BY HAVING MATTERS PUT INTO
HIS MIND, THE EFFECT OF WHICH IT IS IMPOSSIBLE TO ESTIMATE OR ASSESS? 
AS AN ILLUSTRATION OF THIS PROPOSITION, THE COURT OF CRIMINAL APPEAL
HAS EXPRESSED, NOT ONCE BUT MANY TIMES, ITS THOROUGH DISAPPROVAL OF
EVIDENCE WHICH IS SOMETIMES GIVEN BY POLICE OFFICERS AT THE END OF A
CASE WHEN A MAN HAS BEEN CONVICTED.  ON SUCH OCCASIONS ALL SORTS OF
ALLEGATIONS ARE FREQUENTLY MADE AGAINST A MAN'S CHARACTER, SOMETIMES IN
THE NATURE OF HEARSAY AND SOMETIMES NOT SUPPORTED BY EVIDENCE AT ALL. 
WHAT IS THE GROUND FOR THE DISAPPROVAL OF THE COURT OF CRIMINAL APPEAL
REGARDING SUCH STATEMENTS?  IT CAN ONLY BE THAT THE JUDGE WHO, AFTER
HEARING THE STATEMENTS, HAS TO PRONOUNCE SENTENCE, MAY, QUITE
UNCONSCIOUSLY, HAVE HIS JUDGMENT INFLUENCED BY MATTERS WHICH HE HAS NO
RIGHT TO CONSIDER....  NOT ALL DEFAMATORY MATTER CAN AMOUNT TO CONTEMPT
OF COURT....  WHETHER DEFAMATORY MATTER AMOUNTS TO CONTEMPT IN ANY
PARTICULAR CASE IS A QUESTION IN EACH CASE OF FACT, OF DEGREE AND OF
CIRCUMSTANCES."  OLIVER, J., IN REX V. DAVIES, SUPRA, AT 445-46.  CF.
PARASHURAM DETARAM SHAMDASANI V. KING-EMPEROR, (1945) A.C. 264.  TO
DENY THAT BLUDGEONING OR POISONOUS COMMENT HAS POWER TO INFLUENCE, OR
AT LEAST TO DISTURB, THE TASK OF JUDGING IS TO PLAY MAKEBELIEVE AND TO
ASSUME THAT MEN IN GOWNS ARE ANGELS.  THE PSYCHOLOGICAL ASPECTS OF THIS
PROBLEM BECOME PARTICULARLY PERTINENT IN THE CASE OF ELECTED JUDGES
WITH SHORT TENURE. 

"TRIAL BY NEWSPAPER," LIKE ALL CATCH PHRASES, MAY BE LOOSELY USED BUT
IT SUMMARIZES AN EVIL INFLUENCE UPON THE ADMINISTRATION OF CRIMINAL
JUSTICE IN THIS COUNTRY.  ITS ABSENCE IN ENGLAND, AT LEAST ITS NARROW
CONFINEMENT THERE, FURNISHES AN ILLUMINATING COMMENTARY.  IT WILL
HARDLY BE CLAIMED THAT THE PRESS IS LESS FREE IN ENGLAND THAN IN THE
UNITED STATES.  NOR WILL ANY INFORMED PERSON DENY THAT THE
ADMINISTRATION OF CRIMINAL JUSTICE IS MORE EFFECTIVE THERE THAN HERE. 
THIS IS SO DESPITE THE COMMONLY ACCEPTED VIEW THAT ENGLISH STANDARDS OF
CRIMINAL JUSTICE ARE MORE CIVILIZED, OR, AT THE LEAST, THAT RECOGNIZED
STANDARDS OF FAIR CONDUCT IN THE PROSECUTION OF CRIME ARE BETTER
OBSERVED.  THUS, "THE THIRD DEGREE" IS NOT UNJUSTLY CALLED "THE
AMERICAN METHOD."  FN7 THIS IS NOT THE OCCASION TO ENLARGE UPON THE
REASONS FOR THE GREATER EFFECTIVENESS OF ENGLISH CRIMINAL JUSTICE BUT
IT MAY BE CONFIDENTLY ASSERTED THAT IT IS MORE EFFECTIVE PARTLY BECAUSE
ITS STANDARDS ARE SO CIVILIZED.  FN8  THERE ARE THOSE WHO WILL RESENT
SUCH A STATEMENT AS PRAISE OF ANOTHER COUNTRY AND DISPRAISE OF ONE'S
OWN.  WHAT IT REALLY MEANS IS THAT ONE COVETS FOR HIS OWN COUNTRY A
QUALITY OF PUBLIC CONDUCT NOT SURPASSED ELSEWHERE. 

CERTAIN FEATURES OF AMERICAN CRIMINAL JUSTICE HAVE LONG BEEN
DIAGNOSED BY THOSE BEST QUALIFIED TO JUDGE AS SERIOUS AND REMEDIABLE
DEFECTS.  ON THE OTHER HAND, SOME MISCHIEVOUS ACCOMPANIMENTS OF OUR
SYSTEM HAVE BEEN SO PERVASIVE THAT THEY ARE TOO OFTEN REGARDED AS PART
OF THE EXUBERANT AMERICAN SPIRIT.  THUS, "TRIAL BY NEWSPAPERS" HAS
SOMETIMES BEEN EXPLAINED AS A CONCESSION TO OUR PECULIAR INTEREST IN
CRIMINAL TRIALS.  SUCH INTEREST MIGHT BE AN INNOCENT ENOUGH PASTIME
WERE IT NOT FOR THE FACT THAT THE STIMULATION OF SUCH CURIOSITY BY THE
PRESS AND THE RESPONSE TO SUCH STIMULATED INTEREST HAVE NOT FAILED TO
CAUSE GRIEVOUS TRAGEDIES COMMITTED UNDER THE FORMS OF LAW.  OF COURSE
TRIALS MUST BE PUBLIC AND THE PUBLIC HAVE A DEEP INTEREST IN TRIALS. 
THE PUBLIC'S LEGITIMATE INTEREST, HOWEVER, PRECLUDES DISTORTION OF WHAT
GOES ON INSIDE THE COURTROOM, DISSEMINATION OF MATTERS THAT DO NOT COME
BEFORE THE COURT, OR OTHER TRAFFICKING WITH TRUTH INTENDED TO INFLUENCE
PROCEEDINGS OR INEVITABLY CALCULATED TO DISTURB THE COURSE OF JUSTICE. 
THE ATMOSPHERE IN A COURTROOM MAY BE SUBTLY INFLUENCED FROM WITHOUT. 
FN9  SEE DISSENTING OPINION OF MR. JUSTICE HOLMES, IN FRANK V. MANGUM,
237 U.S. 309, 345, AT 349.  CASES ARE TOO OFTEN TRIED IN NEWSPAPERS
BEFORE THEY ARE TRIED IN COURT, AND THE CAST OF CHARACTERS IN THE
NEWSPAPER TRIAL TOO OFTEN DIFFERS GREATLY FROM THE REAL PERSONS WHO
APPEAR AT THE TRIAL IN COURT AND WHO MAY HAVE TO SUFFER ITS DISTORTED
CONSEQUENCES.  FN10 

NEWSPAPERS AND NEWSPAPER MEN THEMSELVES HAVE ACKNOWLEDGED THESE
PRACTICES, DEPLORED THEIR EVILS, AND URGED REFORM.  FN11  SEE THE
ATTORNEY GENERAL'S CONFERENCE ON CRIME (1934) 82-111.  ONE OF THE MOST
ZEALOUS CLAIMANTS OF THE PREROGATIVES OF THE PRESS, THE CHICAGO
TRIBUNE, HAS EVEN PROPOSED LEGAL MEANS FOR THE CORRECTION OF THESE
INROADS UPON THE PROVINCE OF CRIMINAL JUSTICE:  "'THE TRIBUNE ADVOCATES
AND WILL ACCEPT DRASTIC RESTRICTION OF THIS PRELIMINARY PUBLICITY.  THE
PENETRATION OF THE POLICE SYSTEM AND THE COURTS BY JOURNALISTS MUST
STOP.  WITH SUCH A LAW THERE WOULD BE NO MOTIVATION FOR IT.  THOUGH
SUCH A LAW WILL BE REVOLUTIONARY IN AMERICAN JOURNALISM, THOUGH IT IS
NOT FINANCIALLY ADVISABLE FOR NEWSPAPERS, IT STILL IS NECESSARY. 
RESTRICTIONS MUST COME.'"  FN12 

IT IS NOT FOR ME TO EXPRESS APPROVAL OF THESE VIEWS, STILL LESS,
JUDGMENT ON THE CONSTITUTIONAL ISSUES THAT WOULD ARISE IF THEY WERE
TRANSLATED INTO LEGISLATION.  BUT THEY ARE RELEVANT TO AN UNDERSTANDING
OF THE NATURE OF OUR PROBLEM.  THEY SERVE ALSO TO EMPHASIZE THAT THE
PURPOSE OF THE CONSTITUTION WAS NOT TO ERECT THE PRESS INTO A
PRIVILEGED INSTITUTION BUT TO PROTECT ALL PERSONS IN THEIR RIGHT TO
PRINT WHAT THEY WILL AS WELL AS TO UTTER IT.  "...  THE LIBERTY OF THE
PRESS IS NO GREATER AND NO LESS THAN THE LIBERTY OF EVERY SUBJECT OF
THE QUEEN," REGINA V. GRAY, (1900) 2 Q.B. 36, 40, AND, IN THE UNITED
STATES, IT IS NO GREATER THAN THE LIBERTY OF EVERY CITIZEN OF THE
REPUBLIC.  THE RIGHT TO UNDERMINE PROCEEDINGS IN COURT IS NOT A SPECIAL
PREROGATIVE OF THE PRESS. 

THE PRESS DOES HAVE THE RIGHT, WHICH IS ITS PROFESSIONAL FUNCTION, TO
CRITICIZE AND TO ADVOCATE.  THE WHOLE GAMUT OF PUBLIC AFFAIRS IS THE
DOMAIN FOR FEARLESS AND CRITICAL COMMENT, AND NOT LEAST THE
ADMINISTRATION OF JUSTICE.  BUT THE PUBLIC FUNCTION WHICH BELONGS TO
THE PRESS MAKES IT AN OBLIGATION OF HONOR TO EXERCISE THIS FUNCTION
ONLY WITH THE FULLEST SENSE OF RESPONSIBILITY.  WITHOUT SUCH A LIVELY
SENSE OF RESPONSIBILITY A FREE PRESS MAY READILY BECOME A POWERFUL
INSTRUMENT OF INJUSTICE.  FN13  IT SHOULD NOT AND MAY NOT ATTEMPT TO
INFLUENCE JUDGES OR JURIES BEFORE THEY HAVE MADE UP THEIR MINDS ON
PENDING CONTROVERSIES.  SUCH A RESTRICTION, WHICH MERELY BARS THE
OPERATION OF EXTRANEOUS INFLUENCE SPECIFICALLY DIRECTED TO A CONCRETE
CASE, IN NO WISE CURTAILS THE FULLEST DISCUSSION OF PUBLIC ISSUES
GENERALLY.  IT IS NOT SUGGESTED THAT GENERALIZED DISCUSSION OF A
PARTICULAR TOPIC SHOULD BE FORBIDDEN, OR RUN THE HAZARD OF CONTEMPT
PROCEEDINGS, MERELY BECAUSE SOME PHASES OF SUCH A GENERAL TOPIC MAY BE
INVOLVED IN A PENDING LITIGATION.  IT IS THE FOCUSED ATTEMPT TO
INFLUENCE A PARTICULAR DECISION THAT MAY HAVE A CORRODING EFFECT ON THE
PROCESS OF JUSTICE, AND IT IS SUCH COMMENT THAT JUSTIFIES THE
CORRECTIVE PROCESS. 

THE ADMINISTRATION OF LAW, PARTICULARLY THAT OF THE CRIMINAL LAW,
NORMALLY OPERATES IN AN ENVIRONMENT THAT IS NOT UNIVERSAL OR EVEN
GENERAL BUT INDIVIDUAL.  THE DISTINCTIVE CIRCUMSTANCES OF A PARTICULAR
CASE DETERMINE WHETHER LAW IS FAIRLY ADMINISTERED IN THAT CASE, THROUGH
A DISINTERESTED JUDGMENT ON THE BASIS OF WHAT HAS BEEN FORMALLY
PRESENTED INSIDE THE COURTROOM ON EXPLICIT CONSIDERATIONS, INSTEAD OF
BEING SUBJECTED TO EXTRANEOUS FACTORS PSYCHOLOGICALLY CALCULATED TO
DISTURB THE EXERCISE OF AN IMPARTIAL AND EQUITABLE JUDGMENT. 

IF MEN, INCLUDING JUDGES AND JOURNALISTS, WERE ANGELS, THERE WOULD BE
NO PROBLEMS OF CONTEMPT OF COURT.  ANGELIC JUDGES WOULD BE UNDISTURBED
BY EXTRANEOUS INFLUENCES AND ANGELIC JOURNALISTS WOULD NOT SEEK TO
INFLUENCE THEM.  THE POWER TO PUNISH FOR CONTEMPT, AS A MEANS OF
SAFEGUARDING JUDGES IN DECIDING ON BEHALF OF THE COMMUNITY AS
IMPARTIALLY AS IS GIVEN TO THE LOT OF MEN TO DECIDE, IS NOT A PRIVILEGE
ACCORDED TO JUDGES.  THE POWER TO PUNISH FOR CONTEMPT OF COURT IS A
SAFEGUARD NOT FOR JUDGES AS PERSONS BUT FOR THE FUNCTION WHICH THEY
EXERCISE.  IT IS A CONDITION OF THAT FUNCTION - INDISPENSABLE FOR A
FREE SOCIETY - THAT IN A PARTICULAR CONTROVERSY PENDING BEFORE A COURT
AND AWAITING JUDGMENT, HUMAN BEINGS, HOWEVER STRONG, SHOULD NOT BE TORN
FROM THEIR MOORINGS OF IMPARTIALITY BY THE UNDERTOW OF EXTRANEOUS
INFLUENCE.  IN SECURING FREEDOM OF SPEECH, THE CONSTITUTION HARDLY
MEANT TO CREATE THE RIGHT TO INFLUENCE JUDGES OR JURIES.  THAT IS NO
MORE FREEDOM OF SPEECH THAN STUFFING A BALLOT BOX IS AN EXERCISE OF THE
RIGHT TO VOTE. 

DUE REGARD FOR THESE GENERAL CONSIDERATIONS MUST DISPOSE OF THE
PRESENT CONTROVERSY.  SINCE AT THE CORE OF OUR PROBLEM IS A PROPER
BALANCE BETWEEN TWO BASIC CONDITIONS OF OUR CONSTITUTIONAL DEMOCRACY -
FREEDOM OF UTTERANCE AND IMPARTIAL JUSTICE - WE CANNOT ESCAPE THE
EXERCISE OF JUDGMENT ON THE PARTICULAR CIRCUMSTANCES OF THE PARTICULAR
CASE.  AND WE MUST ALWAYS BEAR IN MIND THAT SINCE A JUDGMENT FROM A
STATE COURT COMES HERE AS THE VOICE OF THE STATE, IT MUST BE ACCORDED
EVERY FAIR INTENDMENT THAT IN REASON BELONGS TO ACTION BY A STATE. 

ACCORDING TO THE FLORIDA SUPREME COURT, THE CHARGE AGAINST
PETITIONERS WAS THAT "BOTH THE EDITORIALS AND THE CARTOON WERE
PREDICATED ON INACCURATE, DISTORTED, INCOMPLETE AND BIASED REPORTS OF
PENDING LITIGATION, THAT THE PURPOSE AND EFFECT OF THE EDITORIALS AND
THE CARTOON WERE TO IMPUTE PARTISANSHIP AND FAVOR ON THE PART OF THE
CIRCUIT JUDGES TO THOSE CHARGED WITH CRIME AND THAT SUCH PARTISANSHIP
WAS SO PRONOUNCED THAT THEY REFUSED TO HEED THE VOICE OF THE PEOPLE'S
REPRESENTATIVES....  SO THE VICE IN BOTH THE EDITORIALS WAS THE
DISTORTED, INACCURATE STATEMENT OF THE FACTS AND WITH THAT STATEMENT
WERE SCRAMBLED FALSE INSINUATIONS THAT AMOUNTED TO UNWARRANTED CHARGES
OF PARTISANSHIP AND UNFAIRNESS ON THE PART OF THE JUDGES."  FN14  THE
TENOR OF THE FIRST EDITORIAL WAS COMPLAINT OF THE TECHNICALITIES AND
DELAYS OF THE LAW WHICH SEEM TO GIVE EXCESSIVE PROTECTION TO
DEFENDANTS.  IT MAKES NO SUGGESTION WHICH COULD BE CONSTRUED AS AN
ATTEMPT TO INFLUENCE THE COURT'S DECISION IN A MATTER ACTUALLY PENDING
BEFORE IT.  ALL THE QUESTIONS DISCUSSED IN THE EDITORIAL HAD BEEN ACTED
ON BY THE TRIAL JUDGES.  THE EDITOR MERELY INDULGED IN GENERAL
CRITICISM OF THOSE ACTS AS EXEMPLIFYING AN OVERSOLICITOUS CONCERN FOR
DEFENDANTS BY THE LAW AND BY THE JUDGES WHO INTERPRETED IT.  NOR WAS
THE CARTOON DIRECTED TOWARD A PARTICULAR PENDING CASE.  INDEED, IT
PARTLY SERVES TO INTERPRET THE EDITORIAL AS ONE CONCERNED WITH A
GENERAL SITUATION.  ONE SUSPECTS THAT ONLY JUDICIAL HYPERSENSITIVENESS
WOULD FIND IN IT AN ANIMUS SPECIFICALLY DIRECTED.  THE OPINION OF THE
COURT ILLUSTRATES THE DANGER OF CONFUSING CORRECTION OF INTERFERENCE
WITH JUDICIAL ACTION WITH CONCERN OVER A COURT'S DIGNITY.  INSTEAD OF
TREATING LIGHTLY A CARTOON INDISTINGUISHABLE IN TYPE FROM SCORES OF
SUCH EPHEMERAL PRODUCTS, THE COURT SAW IN IT WHOLLY UNDESERVED
SIGNIFICANCE. 

AGAIN, THE SECOND EDITORIAL REFERRED TO A PARTICULAR CASE ONLY AS AN
EXAMPLE.  IN THAT CASE, TOO, THE COURT HAD MADE ITS DECISION.  WHAT THE
EDITOR CRITICIZED WAS THE SPEED OF DISPOSITION AND OTHER FEATURES OF
PROCEDURE WHICH ATTENDED THE CASE.  HIS ALLOWABLE CONCERN WAS THAT THE
PEOPLE HAVE A CHANCE TO GIVE THEIR ARGUMENT, THAT THE PROSECUTION IN
CRIMINAL CASES BE TREATED AS FAIRLY AS THE DEFENSE.  INACCURATE AND
EVEN FALSE COMMENT ON LITIGATION NO LONGER PENDING MAY NOT BE DEALT
WITH BY PUNISHING FOR CONTEMPT AS A MEANS OF ASSURING THE JUST EXERCISE
OF THE JUDICIAL PROCESS. 

THE FLORIDA SUPREME COURT REFERRED TO THE CASES CRITICIZED AS
"PENDING."  BUT IT DID NOT DEFINE THE SCOPE OF "PENDING" NOR DID THE
GROUNDS OF ITS DECISION HAVE ANY PARTICULAR DEPENDENCE ON THE
REQUIREMENT THAT A CASE BE PENDING.  THE FINDING BY A STATE COURT THAT
A CASE IS "PENDING" IN THE SENSE RELEVANT TO THE POWER TO PUNISH FOR
CONTEMPT DOES NOT, OF COURSE, BAR ITS REVIEW HERE.  OTHERWISE A STATE
COURT COULD FORECLOSE OUR PROTECTION OF THE CONSTITUTIONAL RIGHT OF
FREE SPEECH BY PUTTING FORTH AS A NON-FEDERAL GROUND OF DECISION THAT
WHICH IS AN ESSENTIAL ASPECT OF THE FEDERAL QUESTION.  UNION PACIFIC R.
CO. V. PUBLIC SERVICE COMM'N, 248 U.S. 67, 69-70; WARD V. LOVE COUNTY,
253 U.S. 17, 22; DAVIS V. WECHSLER, 263 U.S. 22. 

IF IT IS CONTEMPTUOUS TO BRING THE COURTS OF A STATE INTO DISREPUTE
AND GENERALLY TO IMPAIR THEIR EFFICIENCY, THEN IT CAN MAKE NO
DIFFERENCE ON WHAT OCCASION OR WITH REFERENCE TO WHAT EVENT THAT EFFECT
IS ACHIEVED OR ATTEMPTED.  BUT WHEN IT IS UNDERSTOOD WHAT IS MEANT BY A
"PENDING" CASE, IT BECOMES PLAIN THAT FOR PURPOSES OF PUNISHING FOR
CONTEMPT AS INTERFERENCE, THE CASES WERE NOT ACTIVELY PENDING. 
"PENDING" IS NOT USED WITH THE TECHNICAL INCLUSIVENESS THAT IT HAS IN
THE PHRASE LIS PENDENS.  IN THE SITUATIONS IN WHICH THAT PHRASE HAS
MEANING AND APPLICABILITY, THE IMPORTANT CONSIDERATIONS ARE WHETHER ANY
PROCEEDINGS HAVE BEEN TAKEN TO PUT THE ISSUE INTO COURT AND WHETHER IT
IS STILL THERE.  WHERE THE POWER TO PUNISH FOR CONTEMPT IS ASSERTED, IT
IS NOT IMPORTANT THAT THE CASE IS TECHNICALLY IN COURT OR THAT FURTHER
PROCEEDINGS, SUCH AS THE POSSIBILITY OF A REHEARING, ARE AVAILABLE. 
"WHEN A CASE IS PENDING IS NOT A TECHNICAL, LAWYER'S PROBLEM, BUT IS TO
BE DETERMINED BY THE SUBSTANTIAL REALITIES OF THE SPECIFIC SITUATION." 
BRIDGES V. CALIFORNIA, 314 U.S. 252, 279, AT 303-304(DISSENT).  THE
DECISIVE CONSIDERATION IS WHETHER THE JUDGE OR THE JURY IS, OR
PRESENTLY WILL BE, PONDERING A DECISION THAT COMMENT SEEKS TO AFFECT. 
FORBIDDEN COMMENT IS SUCH AS WILL OR MAY THROW PSYCHOLOGICAL WEIGHT
INTO SCALES WHICH THE COURT IS IMMEDIATELY BALANCING.  CF. L. HAND, J.,
IN EX PARTE CRAIG, 282 F. 138, 159-60.  IN THE SITUATION BEFORE US, THE
SCALES HAD COME TO REST.  THE PETITIONERS OFFENDED THE TRIAL COURT BY
CRITICIZING WHAT THE COURT HAD ALREADY PUT IN THE SCALES, NOT BY
ATTEMPTING THEMSELVES TO INSERT WEIGHTS. 

THE PETITIONERS HERE COULD NOT HAVE DISTURBED THE TRIAL COURT IN ITS
SENSE OF FAIRNESS BUT ONLY IN ITS SENSE OF PERSPECTIVE.  THE JUDGMENT
MUST, I AGREE, BE REVERSED. 

FN1  THE JUDGES WHO TRIED THE CONTEMPT CASES WERE THE SAME JUDGES WHO
WERE CRITICIZED BY THE EDITORIALS.  THE WORDS OF CAUTION OF MR. CHIEF
JUSTICE TAFT BECOME RELEVANT:  "THE DELICACY THERE IS IN THE JUDGE'S
DECIDING WHETHER AN ATTACK UPON HIS OWN JUDICIAL ACTION IS MERE
CRITICISM OR REAL OBSTRUCTION, AND THE POSSIBILITY THAT IMPULSE MAY
INCLINE HIS VIEW TO PERSONAL VINDICATION, ARE MANIFEST."  CRAIG V.
HECHT, 263 U.S. 255, 279(CONCURRING).  BUT THE JUDGES WHO TRIED
PETITIONERS WERE SENSIBLE OF THE DELICACY OF THEIR POSITION, AND
OFFERED TO RETIRE FROM THE CASE IF PETITIONERS FELT THEY WOULD PREFER
TO BE TRIED BY ANOTHER JUDGE. 

FN2  "...  THE ADMINISTRATION OF GOVERNMENT HAS BECOME MORE COMPLEX,
THE OPPORTUNITIES FOR MALFEASANCE AND CORRUPTION HAVE MULTIPLIED, CRIME
HAS GROWN TO MOST SERIOUS PROPORTIONS, AND THE DANGER OF ITS PROTECTION
BY UNFAITHFUL OFFICIALS AND OF THE IMPAIRMENT OF THE FUNDAMENTAL
SECURITY OF LIFE AND PROPERTY BY CRIMINAL ALLIANCES AND OFFICIAL
NEGLECT, EMPHASIZES THE PRIMARY NEED OF A VIGILANT AND COURAGEOUS
PRESS, ESPECIALLY IN GREAT CITIES.  THE FACT THAT THE LIBERTY OF THE
PRESS MAY BE ABUSED BY MISCREANT PURVEYORS OF SCANDAL DOES NOT MAKE ANY
THE LESS NECESSARY THE IMMUNITY OF THE PRESS FROM PREVIOUS RESTRAINT IN
DEALING WITH OFFICIAL MISCONDUCT.  SUBSEQUENT PUNISHMENT FOR SUCH
ABUSES AS MAY EXIST IS THE APPROPRIATE REMEDY, CONSISTENT WITH
CONSTITUTIONAL PRIVILEGE."  NEAR V. MINNESOTA, 283 U.S. 697, 719-20. 

NOT UNRELATED TO THIS WHOLE PROBLEM, HOWEVER, ARE THE TECHNOLOGICAL
AND ECONOMIC INFLUENCES THAT HAVE VASTLY TRANSFORMED THE ACTUAL
OPERATION OF THE RIGHT TO A FREE, IN THE SENSE OF A GOVERNMENTALLY
UNCENSORED, PRESS.  BIGNESS AND CONCENTRATION OF INTEREST HAVE PUT
THEIR IMPRESS ALSO ON THIS INDUSTRY.  "TODAY IDEAS ARE STILL FLOWING
FREELY, BUT THE SOURCES FROM WHICH THEY RISE HAVE SHOWN A TENDENCY TO
EVAPORATE....  THE CONTROLLING FACT IN THE FREE FLOW OF THOUGHT IS NOT
DIVERSITY OF OPINION, IT IS DIVERSITY OF THE SOURCES OF OPINION - THAT
IS, DIVERSITY OF OWNERSHIP....  THERE ARE PROBABLY A LOT MORE WORDS
WRITTEN AND SPOKEN IN AMERICA TODAY THAN EVER BEFORE, AND ON MORE
SUBJECTS; BUT IF IT IS TRUE, AS THIS BOOK SUGGESTS, THAT THESE WORDS
AND IDEAS ARE FLOWING THROUGH FEWER CHANNELS, THEN OUR FIRST FREEDOM
HAS BEEN DIMINISHED, NOT ENLARGED."  E.B. WHITE, IN THE NEW YORKER,
MARCH 16, 1946, P. 97, REVIEWING ERNST, THE FIRST FREEDOM (1946). 
THERE ARE TODAY INCOMPARABLY MORE EFFECTIVE AND MORE WIDESPREAD MEANS
FOR THE DISSEMINATION OF IDEAS AND INFORMATION THAN IN THE PAST.  BUT A
STEADY SHRINKAGE OF A DIFFUSED OWNERSHIP RAISES FAR REACHING QUESTIONS
REGARDING THE MEANING OF THE "FREEDOM" OF A FREE PRESS. 

FN3  ARTICLE XXIX OF THE DECLARATION OF RIGHTS OF THE CONSTITUTION OF
MASSACHUSETTS, 1780. 

FN4  THAT THIS INDISPENSABLE CONDITION FOR A FREE SOCIETY WAS WELL
KNOWN TO THE FRAMERS OF THE CONSTITUTION, IS THE THEME OF MR. JUSTICE
BRANDEIS IN HIS DISSENTING OPINION IN MYERS V. UNITED STATES, 272 U.S.
52, 240, AT 293:  "THE DOCTRINE OF THE SEPARATION OF POWERS WAS ADOPTED
BY THE CONVENTION OF 1787, NOT TO PROMOTE EFFICIENCY BUT TO PRECLUDE
THE EXERCISE OF ARBITRARY POWER.  THE PURPOSE WAS, NOT TO AVOID
FRICTION, BUT, BY MEANS OF THE INEVITABLE FRICTION INCIDENT TO THE
DISTRIBUTION OF THE GOVERNMENTAL POWERS AMONG THREE DEPARTMENTS, TO
SAVE THE PEOPLE FROM AUTOCRACY."  AND SEE MR. CHIEF JUSTICE TAFT, IN EX
PARTE GROSSMAN, 267 U.S. 87, 119-22. 

FN5  THE STATE CONSTITUTIONS MAKE IT CLEAR THAT THE FREEDOM OF SPEECH
AND PRESS THEY GUARANTEE IS NOT ABSOLUTE.  ALL, WITH THE EXCEPTION ONLY
OF MASSACHUSETTS, NEW HAMPSHIRE, SOUTH CAROLINA, VERMONT, AND WEST
VIRGINIA, EXPLICITLY PROVIDE IN PRACTICALLY IDENTICAL LANGUAGE FOR THE
RIGHT TO SPEAK, WRITE AND PUBLISH FREELY, EVERY ONE, HOWEVER, "BEING
RESPONSIBLE FOR THE ABUSE OF THAT RIGHT." 

FN6  SEE, E.G., THE DISTURBING RECORD IN THE CASE OF CAMPBELL, NEW
YORK COUNTY CRIMINAL COURTS BAR ASSOCIATION, IN THE MATTER OF THE
INVESTIGATION OF THE CONVICTION OF BERTRAM M. CAMPBELL (FEB. 22, 1946),
AND THE DECISION OF THE NEW YORK COURT OF CLAIMS, ON JUNE 17, 1946,
AWARDING CAMPBELL $115,000 FOR WRONGFUL CONVICTION, INCLUDING DAMAGES
FOR LOSS OF EARNINGS, AFTER HIS PARDON BY GOVERNOR DEWEY FOLLOWING THE
CONFESSION BY ANOTHER OF THE CRIMES FOR WHICH CAMPBELL HAD BEEN
CONVICTED.  "HE WAS THE VICTIM OF A MISCARRIAGE OF JUSTICE BUT
FORTUNATELY FOR HIM THE STATE HAS UNDERTAKEN TO RECTIFY THE MISTAKE AS
FAR AS POSSIBLE....  SEVEN YEARS, SIX MONTHS AND FIVE DAYS ELAPSED FROM
CLAIMANT'S ARREST UNTIL HE WAS PARDONED."  CAMPBELL V. NEW YORK, 186
MISC. 586, 591. 

FN7  COMPARE INQUIRY IN REGARD TO THE INTERROGATION BY THE POLICE OF
MISS SAVIDGE, CMD.  3147(1928); REPORT OF THE ROYAL COMMISSION ON
POLICE POWERS AND PROCEDURE, CMD.  3297(1929), WITH REPORT ON
LAWLESSNESS IN LAW ENFORCEMENT, IN 4 NATIONAL COMMISSION ON LAW
OBSERVANCE AND ENFORCEMENT REPORTS (1931).  SEE ALSO WAN V. UNITED
STATES, 266 U.S. 1; BROWN V. MISSISSIPPI, 297 U.S. 278; CHAMBERS V.
FLORIDA, 309 U.S. 227. 

FN8  THE RECENT RULING BY THE SPEAKER OF THE HOUSE OF COMMONS
REGARDING THE LIMITATION ON THE RIGHT TO COMMENT EVEN IN PARLIAMENT ON
THE PENDING PROCEEDINGS AGAINST THE ACCUSED NAZIS BEFORE THE NUREMBERG
TRIBUNAL BEARS SIGNIFICANTLY ON THE ATTITUDE AND CONTROLLING STANDARDS
DEEMED APPROPRIATE IN ENGLAND IN ORDER TO PROTECT THE JUDICIAL PROCESS
FROM EXTRANEOUS INFLUENCES: 

"THE RULE TO WHICH THE NOBLE LORD HAS DRAWN MY ATTENTION THAT
REFLECTIONS CANNOT BE MADE ON JUDGES OF THE HIGH COURT AND CERTAIN
OTHER COURTS, EXCEPT BY WAY OF A SUBSTANTIVE MOTION, APPLIES ONLY TO
THE COURTS OF THIS COUNTRY.  IN TERMS, THEREFORE, IT ONLY COVERS THE
TWO BRITISH MEMBERS OF THIS TRIBUNAL.  I FEEL THAT IT WOULD BE WORSE
THAN INVIDIOUS - INDEED IMPROPER - NOT TO EXTEND THE SAME PROTECTION TO
THEIR COLLEAGUES ON THIS TRIBUNAL WHO REPRESENT THE THREE OTHER ALLIED
NATIONS.    "THERE IS, HOWEVER, ANOTHER OF OUR RULES OF DEBATE WHICH IS
RELEVANT TO THIS CASE, THE RULE THAT MATTERS WHICH ARE SUB JUDICE
SHOULD NOT BE THE SUBJECT OF DISCUSSION IN THIS HOUSE.  THIS RULE
AGAIN, IN TERMS, APPLIES ONLY TO BRITISH COURTS.  THE COURT IN
NUREMBERG IS A COURT IN WHICH BRITISH JUDGES PARTICIPATE, AND WE HAVE
THE SAME INTEREST IN SEEING THAT NOTHING IS DONE HERE TO DISTURB ITS
JUDICIAL ATMOSPHERE AS WE HAVE IN THE CASE OF BRITISH COURTS - INDEED,
PERHAPS A GREATER INTEREST, SINCE THE EYES OF THE WORLD ARE UPON THIS
NEW AND DIFFICULT PROCEDURE OF INTERNATIONAL JUSTICE, AND THE
CONSEQUENCES OF ILL-ADVISED INTERFERENCE MIGHT BE INCALCULABLY
MISCHIEVOUS.    "I THINK THAT THE INTENTION OF BOTH THE RULES TO WHICH
I HAVE REFERRED, IS TO PRESERVE THE HOUSE FROM EVEN THE APPEARANCE OF
INTERFERING IN THE ADMINISTRATION OF BRITISH JUSTICE - AND THIS SHOULD
INCLUDE TRIALS FOR WHICH THIS COUNTRY HAS SOME RESPONSIBILITY; AND I
RULE, THEREFORE, THAT ALL THE MEMBERS OF THIS INTERNATIONAL COURT ARE
PROTECTED TO THE SAME EXTENT AS BRITISH JUDGES, AND THAT DISCUSSION OF
ITS PROCEEDINGS IS OUT OF ORDER, IN THE SAME WAY AS MATTERS UNDER
ADJUDICATION IN A BRITISH COURT OF LAW."  416 PARLIAMENTARY DEBATES
(HANSARD) 599-600, NOV. 22, 1945. 

FN9  THE MANNER IN WHICH THE HAUPTMANN TRIAL WAS REPORTED LED TO A
SEARCHING INQUIRY BY A SPECIAL COMMITTEE OF THE AMERICAN BAR
ASSOCIATION AND IT REPORTED THE FOLLOWING RECOMMENDATIONS: 

"IN THE FOREGOING REPORT WE HAVE TRIED TO MAKE A FAIR PRESENTATION OF
SALIENT FACTS.  WE HAVE BEEN MOVED LESS BY SPIRIT OF CENSURE THAN BY
HOPE OF REMEDIAL ACTION.  THE EXCESSES WE HAVE DESCRIBED DIFFER FROM
PRACTICES IN MANY OTHER CASES MAINLY IN DEGREE. 

"THE TRIAL OF A CRIMINAL CASE IS A BUSINESS THAT HAS FOR ITS SOLE
PURPOSE THE ADMINISTRATION OF JUSTICE, AND IT SHOULD BE CARRIED ON
WITHOUT DISTRACTING INFLUENCES. 

"PASSING FROM THE GENERAL TO THE SPECIFIC WE RECOMMEND: 

"THAT ATTENDANCE IN THE COURTROOM DURING THE PROGRESS OF A CRIMINAL
TRIAL BE LIMITED TO THE SEATING CAPACITY OF THE ROOM. 

"THAT THE PROCESS OF SUBPOENA OR ANY OTHER PROCESS OF THE COURT
SHOULD NEVER BE USED TO SECURE PREFERENTIAL ADMISSION OF ANY PERSON OR
SPECTATOR; THAT SUCH ABUSE OF PROCESS BE PUNISHED AS CONTEMPT. 

"THAT APPROACHES TO THE COURTROOM BE KEPT CLEAR, TO THE END THAT FREE
ACCESS TO THE COURTROOM BE MAINTAINED. 

"THAT NO USE OF CAMERAS OR PHOTOGRAPHIC APPLIANCES BE PERMITTED IN
THE COURTROOM, EITHER DURING THE SESSION OF THE COURT OR OTHERWISE. 

"THAT NO SOUND REGISTERING DEVICES FOR PUBLICITY USE BE PERMITTED TO
OPERATE IN THE COURTROOM AT ANY TIME. 

"THAT THE SURREPTITIOUS PROCUREMENT OF PICTURES OR SOUND RECORDS BE
CONSIDERED CONTEMPT OF COURT AND BE PUNISHED AS SUCH. 

"THAT THE COURTROOM AND THE COURT HOUSE BE KEPT FREE FROM NEWS
DISTRIBUTING DEVICES AND EQUIPMENT. 

"THAT NEWSPAPER ACCOUNTS OF CRIMINAL PROCEEDINGS BE LIMITED TO
ACCOUNTS OF OCCURRENCES IN COURT WITHOUT ARGUMENT OF THE CASE TO THE
PUBLIC. 

"THAT NO POPULAR REFERENDUM BE TAKEN DURING THE PENDENCY OF THE
LITIGATION AS TO THE GUILT OR INNOCENCE OF THE ACCUSED. 

"THAT BROADCASTING OF ARGUMENTS, GIVING OUT OF ARGUMENTIVE PRESS
BULLETINS, AND EVERY OTHER FORM OF ARGUMENT OR DISCUSSION ADDRESSED TO
THE PUBLIC, BY LAWYERS IN THE CASE DURING THE PROGRESS OF THE
LITIGATION BE DEFINITELY FORBIDDEN. 

"THAT BULLETINS BY THE DEFENDANT ISSUED TO THE PUBLIC DURING THE
PROGRESS OF THE TRIAL BE DEFINITELY FORBIDDEN. 

"THAT PUBLIC CRITICISM OF THE COURT OR JURY BY LAWYERS IN THE CASE
DURING THE PROGRESS OF THE LITIGATION BE NOT TOLERATED. 

"THAT FEATURING IN VAUDEVILLE OF JURORS OR OTHER COURT OFFICERS,
EITHER DURING OR AFTER THE TRIAL, BE FORBIDDEN. 

"THAT THE GIVING OF PAID INTERVIEWS OR THE WRITING OF PAID ARTICLES
BY JURORS, EITHER DURING OR AFTER THE TRIAL, BE FORBIDDEN. 

"THAT THE ATMOSPHERE OF THE COURTROOM AND ADJACENT PREMISES BE
MAINTAINED AS ONE OF DIGNITY AND CALM."  (1936) 22 A.B.A. JOURNAL 79
80. 

FN10  SEE, E.G., GILMAN, THE TRUTH BEHIND THE NEWS (JUNE, 1933) 29
AMERICAN MERCURY 139.  "IT IS IDLE FOR SUCH NEWSPAPERS TO CLAIM THAT
THEY ADOPT SUCH PRACTICES IN THE PUBLIC INTEREST.  THEIR MOTIVE IS THE
SORDID ONE OF INCREASING THEIR PROFITS, UNMINDFUL OF THE RESULT TO THE
UNFORTUNATE WRETCH WHO MAY ULTIMATELY HAVE TO STAND HIS TRIAL FOR
MURDER."  MR. JUSTICE BLAIR, IN ATTORNEY-GENERAL V. TONKS (1934)
N.Z.L.R. 141, 148, AT 150.  CF. PRATT, HOW THE CENSORS RIGGED THE NEWS
(FEB., 1946) 192 HARPER'S MAGAZINE, 97, 105. 

FN11  A PROFESSIONAL DEFENSE OF CRIME REPORTING HAS THIS BIT OF
REFRESHING CANDOR:  "I WILL CONCEDE, HOWEVER, THAT HAD IT NOT BEEN FOR
POPULAR FEELING DEVELOPED TO FEVER HEAT BY THE NEWSPAPERS, HICKMAN
MIGHT BE LIVING TODAY BEHIND THE WALLS OF SOME MADHOUSE INSTEAD OF
HAVING MET DEATH IN THE ELECTRIC CHAIR."  DEWEY, CRIME AND THE PRESS
(DEC. 30, 1931) 15 COMMONWEAL 231, 233.  COMPARE THE STATEMENT BY ONE
OF THE MOST EXPERIENCED CRIMINAL LAWYERS, CLARENCE DARROW: 

"TRIAL BY JURY IS RAPIDLY BEING DESTROYED IN AMERICA BY THE MANNER IN
WHICH THE NEWSPAPERS HANDLE ALL SENSATIONAL CASES.  I DON'T KNOW WHAT
SHOULD BE DONE ABOUT IT.  THE TRUTH IS THAT THE COURTS AND THE LAWYERS
DON'T LIKE TO PROCEED AGAINST NEWSPAPERS.  THEY ARE TOO POWERFUL.  AS
THE LAW STANDS TODAY THERE IS NO IMPORTANT CRIMINAL CASE WHERE THE
NEWSPAPERS ARE NOT GUILTY OF CONTEMPT OF COURT DAY AFTER DAY.  ALL
LAWYERS KNOW IT, ALL JUDGES KNOW IT, AND ALL NEWSPAPERS KNOW IT.  BUT
NOTHING IS DONE ABOUT IT.  NO NEW LAWS ARE NECESSARY.  THE COURT HAS
FULL JURISDICTION TO SEE THAT NO ONE INFLUENCES A VERDICT OR A
DECISION.  BUT EVERYONE IS AFRAID TO ACT."  QUOTED BY PERRY, IN THE
COURTS, THE PRESS, AND THE PUBLIC (TRIAL BY NEWSPAPER)(1931) 30 MICH.
L. REV. 228, 234; (1932) 66 U.S. LAW REV. 374, 379; (1932) 11 PHIL. 
L.J. 277, 282. 

FN12  30 MICH. L. REV. AT 232; 66 U.S. LAW REV. AT 377; 11 PHIL. 
L.J. AT 280.  IN AN ADDRESS BEFORE THE 1936 MEETING OF THE AMERICAN BAR
ASSOCIATION DELEGATES, SIR WILLMOTT LEWIS, THE VETERAN WASHINGTON
CORRESPONDENT OF THE TIMES (LONDON) EXPRESSED THESE VIEWS: 

"THE POINT I WOULD MAKE IS THAT NEITHER THE TRADITION OF ORDERLY
LEGAL PROCEDURE, NOR THE OBLIGATION WHICH THE PRESS SHOULD RECOGNIZE TO
THE MAINTENANCE OF THAT TRADITION, CAN, IN THEMSELVES, BE ENOUGH AMID
THE PRESSURE AND VULGARITY OF THE MODERN WORLD. 

"TRADITION AND OBLIGATION MUST BE BUTTRESSED BY RULES, AND THOSE
RULES MUST BE ENFORCED IN THE DOMAIN OF THEIR IMMEDIATE APPLICATION, BY
THE COURT ITSELF.... 

"I THINK IT INTOLERABLE, AND I CANNOT THINK THAT IT SHOULD NOT BE
PUNISHABLE, THAT A CHARGE LYING AGAINST ANY CITIZEN SHOULD BE
IRRESPONSIBLY TRIED IN THE PUBLIC PRINTS, WHOSE PLAIN DUTY IS THE
REPORTING, AND NOT THE HEARING, OF CAUSES...."  (1936) 20 J. AM. JUD. 
SOC.  84, 86. 

FN13  SEE THE SKEPTICAL REMARKS OF H.L. MENCKEN, A STOUT LIBERTARIAN,
ON THE EFFICACY OF JOURNALISTIC SELF-RESTRAINT: 

"JOURNALISTIC CODES OF ETHICS ARE ALL MOONSHINE.  ESSENTIALLY, THEY
ARE AS ABSURD AS WOULD BE CODES OF STREET-CAR CONDUCTORS, BARBERS OR
PUBLIC JOBHOLDERS.  IF AMERICAN JOURNALISM IS TO BE PURGED OF ITS
PRESENT SWINISHNESS AND BROUGHT UP TO A DECENT LEVEL OF REPUTE - AND
GOD KNOWS THAT SUCH AN IMPROVEMENT IS NEEDED - IT MUST BE ACCOMPLISHED
BY THE DEVICES OF MORALS, NOT BY THOSE OF HONOR.  THAT IS TO SAY, IT
MUST BE ACCOMPLISHED BY EXTERNAL FORCES, AND THROUGH THE MEDIUM OF
PENALTIES EXTERIORLY INFLICTED."  QUOTED BY LEVINESS, IN LAW AND THE
PRESS, THE DAILY RECORD, BALTIMORE, MARCH 11, 1932, P. 3, COL. 1, 4. 

THE AUTHOR OF THE ARTICLE, MR. LEVINESS, A BALTIMORE SUN REPORTER
TURNED LAWYER, FOLLOWED THE QUOTATION FROM MR. MENCKEN WITH THIS
COMMENT: 

"THIS PUTS THE PROBLEM, AS FAR AS COURT AND POLICE NEWS GOES,
SQUARELY BACK WHERE IT BELONGS: IN THE LAP OF THE JUDICIARY.  THE
COURTS MUST SET THE STANDARDS; THE BETTER JOURNALS WILL FOLLOW JOYOUSLY
AND THE GUMCHEWERS' SHEETS MUST BE WHIPPED INTO LINE.  THE SOLUTION IS
FEARLESS JURISTS, NOT AFRAID OF THE DOUBLE-EDGED SWORD OF CONTEMPT
PROCESS; INTELLIGENT JURISTS, ABLE TO EXERCISE THIS POWER IN THE BEST,
ENLIGHTENED PUBLIC INTEREST."  IBID. 

FN14  PENNEKAMP V. STATE, 156 FLA. 227, 239, 240, 22 SO.2D 875, 881,
882. 

MR. JUSTICE MURPHY, CONCURRING. 

WERE WE TO SANCTION THE JUDGMENT RENDERED BY THE COURT BELOW WE WOULD
BE APPROVING, IN EFFECT, AN UNWARRANTED RESTRICTION UPON THE FREEDOM OF
THE PRESS.  THAT FREEDOM COVERS SOMETHING MORE THAN THE RIGHT TO
APPROVE AND CONDONE INSOFAR AS THE JUDICIARY AND THE JUDICIAL PROCESS
ARE CONCERNED.  IT ALSO INCLUDES THE RIGHT TO CRITICIZE AND DISPARAGE,
EVEN THOUGH THE TERMS BE VITRIOLIC, SCURRILOUS OR ERRONEOUS.  TO TALK
OF A CLEAR AND PRESENT DANGER ARISING OUT OF SUCH CRITICISM IS IDLE
UNLESS THE CRITICISM MAKES IT IMPOSSIBLE IN A VERY REAL SENSE FOR A
COURT TO CARRY ON THE ADMINISTRATION OF JUSTICE.  THAT SITUATION IS NOT
EVEN REMOTELY PRESENT IN THIS CASE. 

JUDGES SHOULD BE FOREMOST IN THEIR VIGILANCE TO PROTECT THE FREEDOM
OF OTHERS TO REBUKE AND CASTIGATE THE BENCH AND IN THEIR REFUSAL TO BE
INFLUENCED BY UNFAIR OR MISINFORMED CENSURE.  OTHERWISE FREEDOM MAY
REST UPON THE PRECARIOUS BASE OF JUDICIAL SENSITIVENESS AND CAPRICE. 
AND A CHAIN REACTION MAY BE SET UP, RESULTING IN COUNTLESS RESTRICTIONS
AND LIMITATIONS UPON LIBERTY. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

ONE CAN HAVE NO RESPECT FOR A NEWSPAPER WHICH IS CARELESS WITH FACTS
AND WITH INSINUATIONS FOUNDED IN ITS CARELESSNESS.  SUCH A DISREGARD
FOR THE TRUTH NOT ONLY FLOUTS STANDARDS OF JOURNALISTIC ACTIVITY  FN1
OBSERVED TOO OFTEN BY BREACH, BUT IN FACT TENDS TO BRING THE COURTS AND
THOSE WHO ADMINISTER THEM INTO UNDESERVED PUBLIC OBLOQUY. 

BUT IF EVERY NEWSPAPER WHICH PRINTS CRITICAL COMMENT ABOUT COURTS
WITHOUT JUSTIFIABLE BASIS IN FACT, OR WITHHOLDS THE FULL TRUTH IN
REPORTING THEIR PROCEEDINGS OR DECISIONS, OR GOES EVEN FURTHER AND
MISSTATES WHAT THEY HAVE DONE, WERE SUBJECT ON THESE ACCOUNTS TO
PUNISHMENT FOR CONTEMPT, THERE WOULD BE FEW NOT FREQUENTLY INVOLVED IN
SUCH PROCEEDINGS.  THERE IS PERHAPS NO AREA OF NEWS MORE INACCURATELY
REPORTED FACTUALLY, ON THE WHOLE, THOUGH WITH SOME NOTABLE EXCEPTIONS,
THAN LEGAL NEWS. 

SOME PART OF THIS IS DUE TO CARELESSNESS, OFTEN INDUCED BY THE HASTE
WITH WHICH NEWS IS GATHERED AND PUBLISHED, A SMALLER PORTION TO BIAS OR
MORE BLAMEWORTHY CAUSES.  BUT A GREAT DEAL OF IT MUST BE ATTRIBUTED, IN
CANDOR, TO IGNORANCE WHICH FREQUENTLY IS NOT AT ALL BLAMEWORTHY.  FOR
NEWSPAPERS ARE CONDUCTED BY MEN WHO ARE LAYMEN TO THE LAW.  WITH TOO
RARE EXCEPTIONS THEIR CAPACITY FOR MISUNDERSTANDING THE SIGNIFICANCE OF
LEGAL EVENTS AND PROCEDURES, NOT TO SPEAK OF OPINIONS, IS GREAT.  BUT
THIS IS NEITHER REMARKABLE NOR PECULIAR TO NEWSMEN.  FOR THE LAW, AS
LAWYERS BEST KNOW, IS FULL OF PERPLEXITIES. 

IN VIEW OF THESE FACTS ANY STANDARD WHICH WOULD REQUIRE STRICT
ACCURACY IN REPORTING LEGAL EVENTS FACTUALLY OR IN COMMENTING UPON THEM
IN THE PRESS WOULD BE AN IMPOSSIBLE ONE.  UNLESS THE COURTS AND JUDGES
ARE TO BE PUT ABOVE CRITICISM, NO SUCH RULE CAN OBTAIN.  THERE MUST BE
SOME ROOM FOR MISSTATEMENT OF FACT, AS WELL AS FOR MISJUDGMENT, IF THE
PRESS AND OTHERS ARE TO FUNCTION AS CRITICAL AGENCIES IN OUR DEMOCRACY
CONCERNING COURTS AS FOR ALL OTHER INSTRUMENTS OF GOVERNMENT. 

COURTS AND JUDGES THEREFORE CANNOT BE PUT ALTOGETHER BEYOND THE REACH
OF MISREPRESENTATION AND MISSTATEMENT.  THAT IS TRUE IN ANY CASE, BUT
PERHAPS MORE OBVIOUSLY WHERE THE JUDICIARY IS ELECTIVE, AS IT IS IN
MOST OF OUR STATES, INCLUDING FLORIDA.  SEE STOREY V. ILLINOIS, 79 ILL.
45, 52; (1927) 41 HARV. L. REV. 254, 255.  THE QUESTION, AND THE
STANDARD, MUST BE ONE OF DEGREE AND EFFECTS.  IT CANNOT BE PLACED AT
MERE FALSITY, EITHER IN REPRESENTATION OR IN JUDGMENT.  THE STATEMENT,
WHETHER OF FACT OR OF OPINION, MUST BE OF SUCH A CHARACTER, WHETHER
TRUE OR FALSE, AS TO OBSTRUCT IN SOME CLEAR AND SUBSTANTIAL WAY THE
FUNCTIONING OF THE JUDICIAL PROCESS IN PENDING MATTERS.  BRIDGES V.
CALIFORNIA, 314 U.S. 252.  FN2  IT IS NOT ENOUGH THAT THE JUDGE'S
SENSIBILITIES ARE AFFECTED OR THAT IN SOME WAY HE IS BROUGHT GENERALLY
INTO OBLOQUY.  AFTER ALL, IT IS TO BE REMEMBERED THAT IT IS JUDGES WHO
APPLY THE LAW OF CONTEMPT, AND THE OFFENDER IS THEIR CRITIC. 

THE STATEMENTS IN QUESTION ARE CLEARLY FAIR COMMENT IN LARGE PART. 
PORTIONS EXCEED THAT BOUNDARY.  BUT THE RECORD DOES NOT DISCLOSE THAT
THEY TENDED IN ANY WAY TO BLOCK OR OBSTRUCT THE FUNCTIONING OF THE
JUDICIAL PROCESS.  ACCORDINGLY I CONCUR IN THE COURT'S OPINION AND
JUDGMENT. 

FN1  SEE THE FOLLOWING CODES OF ETHICS PUBLISHED IN CRAWFORD, THE
ETHICS OF JOURNALISM (1924) APP. A.:  CANONS OF JOURNALISM, ADOPTED BY
THE AMERICAN SOCIETY OF NEWSPAPER EDITORS IN 1923, ART. IV; THE OREGON
CODE OF ETHICS, ADOPTED BY THE OREGON STATE EDITORIAL ASSOCIATION IN
1922, ART. I; SOUTH DAKOTA CODE OF ETHICS, ADOPTED BY THE SOUTH DAKOTA
PRESS ASSOCIATION IN 1922, "TRUTH AND HONESTY"; MISSOURI DECLARATION OF
PRINCIPLES AND CODE OF PRACTICE, ADOPTED BY THE MISSOURI PRESS
ASSOCIATION IN 1921, "EDITORIAL."  AND SEE IN THE SAME VOLUME THE
EXTRACTS FROM RULES AND SUGGESTIONS PREPARED BY THE FOLLOWING
NEWSPAPERS FOR THE GUIDANCE OF THEIR STAFFS:  THE BROOKLYN EAGLE, THE
CHRISTIAN SCIENCE MONITOR, THE SPRINGFIELD UNION, THE DETROIT NEWS, THE
HEARST NEWSPAPERS (PERSONAL INSTRUCTIONS GIVEN BY WILLIAM RANDOLPH
HEARST TO HIS NEWSPAPERS), THE SACRAMENTO BEE, THE KANSAS CITY JOURNAL
POST, THE MARION STAR (WRITTEN BY PRESIDENT HARDING WHEN EDITING THE
STAR).  SEE ALSO SHARKEY, THE ETHICS OF JOURNALISM, AN ADDRESS
DELIVERED BEFORE THE PRESS CONFERENCE OF THE WORLD, GENEVA,
SWITZERLAND, SEPTEMBER 15, 1926, P. 10; WICKS, IDEALS AND METHODS OF
ENGLISH NEWSPAPERS, PUBLISHED IN JOURNALISTIC ETHICS AND WORLD AFFAIRS,
ADDRESSES DELIVERED AT THE FIFTEENTH ANNUAL JOURNALISM WEEK AT THE
UNIVERSITY OF MISSOURI, 1924, 25 U. OF MO. BULL.  (NO. 32) 25, 26;
GIBBONS, NEWSPAPER ETHICS (1926) 16 ET SEQ.    FN2  "NOR DOES THE FACT
THAT THE LETTER WAS FALSE, WHILE IT GREATLY AFFECTS THE MORAL QUALITY
OF THE ACT, DETERMINE ITS CRIMINALITY.  IT IS PUNISHABLE ONLY IF IT
INTERFERES WITH JUSTICE, AND IN THAT RESPECT TRUTH IS HARDER TO MEET
THAN FALSEHOOD."  L. HAND, DISSENTING IN EX PARTE CRAIG, 282 F. 138,
161, AFF'D SUB NOM. CRAIG V. HECHT, 263 U.S. 255.  SEE ALSO THE
DISSENTING OPINION OF MR. JUSTICE HOLMES, 263 U.S. AT 281.  BUT CF. IN
RE PROVIDENCE JOURNAL CO., 28 R.I. 489, 68 A. 428; IN RE SAN FRANCISCO
CHRONICLE, 1 CAL.2D 630, 36 P.2D 369. 
..END :

















MORGAN V. VIRGINIA, 328 U.S. 373 


NO. 704.  ARGUED MARCH 27, 1946.  - DECIDED JUNE 3, 1946.  - 184 VA. 24,
34 S.E.2D 491, REVERSED. 


1.  PROVISIONS OF THE VIRGINIA CODE, 1942, SECS. 4097Z TO 4097DD,
WHICH REQUIRE THE SEPARATION OF WHITE AND COLORED PASSENGERS ON BOTH
INTERSTATE AND INTRASTATE MOTOR CARRIERS ARE INVALID AS APPLIED TO
INTERSTATE PASSENGERS IN VEHICLES MOVING INTERSTATE, BECAUSE THEY
BURDEN INTERSTATE COMMERCE CONTRARY TO ART. I, SEC. 8, CL. 3 OF THE
CONSTITUTION OF THE UNITED STATES, EVEN THOUGH CONGRESS HAS ENACTED NO
LEGISLATION ON THE SUBJECT.  PP. 374, 380, 386. 

2.  IF A STATE STATUTE UNLAWFULLY BURDENS INTERSTATE COMMERCE, THE
POWERS RESERVED TO THE STATE BY THE TENTH AMENDMENT WILL NOT VALIDATE
IT.  P. 376. 

3.  AN INTERSTATE PASSENGER, CHARGED IN A CRIMINAL PROCEEDING WITH
VIOLATION OF THE STATUTE, IS A PROPER PERSON TO CHALLENGE ITS VALIDITY
AS A BURDEN ON INTERSTATE COMMERCE.  P. 376. 

4.  STATE LEGISLATION IS INVALID IF IT UNDULY BURDENS INTERSTATE
COMMERCE WHERE UNIFORMITY IS NECESSARY IN THE CONSTITUTIONAL SENSE OF
USEFUL IN ACCOMPLISHING A PERMITTED PURPOSE.  PP. 377, 380. 

5.  A STATE CANNOT IMPOSE UNDUE BURDENS ON INTERSTATE COMMERCE BY
SIMPLY INVOKING THE CONVENIENT APOLOGETICS OF THE POLICE POWER.  P.
380. 

6.  SEATING ARRANGEMENTS FOR THE DIFFERENT RACES IN INTERSTATE MOTOR
TRAVEL REQUIRE A SINGLE, UNIFORM RULE TO PROMOTE AND PROTECT NATIONAL
TRAVEL.  P. 386. 

MORGAN V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

APPELLANT, AN INTERSTATE PASSENGER, WAS CONVICTED OF A VIOLATION OF
VIRGINIA CODE, 1942, SEC. 4097DD, RELATING TO THE SEGREGATION OF WHITE
AND COLORED PASSENGERS ON MOTOR BUSES.  THE SUPREME COURT OF APPEALS OF
VIRGINIA AFFIRMED.  184 VA. 24, 34 S.E.2D 491.  ON APPEAL TO THIS
COURT, REVERSED, P. 386. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL BRINGS TO THIS COURT THE QUESTION OF THE CONSTITUTIONALITY
OF AN ACT OF VIRGINIA, FN1  WHICH REQUIRES ALL PASSENGER MOTOR VEHICLE
CARRIERS, BOTH INTERSTATE AND INTRASTATE N2, TO SEPARATE WITHOUT
DISCRIMINATION  FN3  THE WHITE AND COLORED PASSENGERS IN THEIR MOTOR
BUSES SO THAT CONTIGUOUS SEATS WILL NOT BE OCCUPIED BY PERSONS OF
DIFFERENT RACES AT THE SAME TIME.  A VIOLATION OF THE REQUIREMENT OF
SEPARATION BY THE CARRIER IS A MISDEMEANOR.  FN4  THE DRIVER OR OTHER
PERSON IN CHARGE IS DIRECTED AND REQUIRED TO INCREASE OR DECREASE THE
SPACE ALLOTTED TO THE RESPECTIVE RACES AS MAY BE NECESSARY OR PROPER
AND MAY REQUIRE PASSENGERS TO CHANGE THEIR SEATS TO COMPLY WITH THE
ALLOCATION.  THE OPERATOR'S FAILURE TO ENFORCE THE PROVISIONS IS MADE A
MISDEMEANOR.  FN5 

THESE REGULATIONS WERE APPLIED TO AN INTERSTATE PASSENGER, THIS
APPELLANT, ON A MOTOR VEHICLE THEN MAKING AN INTERSTATE RUN OR TRIP. 
ACCORDING TO THE STATEMENT OF FACT BY THE SUPREME COURT OF APPEALS OF
VIRGINIA, APPELLANT, WHO IS A NEGRO, WAS TRAVELING ON A MOTOR COMMON
CARRIER, OPERATING UNDER THE ABOVE-MENTIONED STATUTE, FROM GLOUCESTER
COUNTY, VIRGINIA, THROUGH THE DISTRICT OF COLUMBIA, TO BALTIMORE,
MARYLAND, THE DESTINATION OF THE BUS.  THERE WERE OTHER PASSENGERS,
BOTH WHITE AND COLORED.  ON HER REFUSAL TO ACCEDE TO A REQUEST OF THE
DRIVER TO MOVE TO A BACK SEAT, WHICH WAS PARTLY OCCUPIED BY OTHER
COLORED PASSENGERS, SO AS TO PERMIT THE SEAT THAT SHE VACATED TO BE
USED BY WHITE PASSENGERS, A WARRANT WAS OBTAINED AND APPELLANT WAS
ARRESTED, TRIED AND CONVICTED OF A VIOLATION OF SEC. 4097DD OF THE
VIRGINIA CODE.  FN6  ON A WRIT OF ERROR THE CONVICTION WAS AFFIRMED BY
THE SUPREME COURT OF APPEALS OF VIRGINIA.  184 VA. 24.  THE COURT OF
APPEALS INTERPRETED THE VIRGINIA STATUTE AS APPLICABLE TO APPELLANT
SINCE THE STATUTE "EMBRACES ALL MOTOR VEHICLES AND ALL PASSENGERS, BOTH
INTERSTATE AND INTRASTATE."  FN7  THE COURT OF APPEALS REFUSED TO
ACCEPT APPELLANT'S CONTENTION THAT THE STATUTE APPLIED WAS INVALID AS A
DELEGATION OF LEGISLATIVE POWER TO THE CARRIER BY A CONCURRENT HOLDING
"THAT NO POWER IS DELEGATED TO THE CARRIER TO LEGISLATE  ...  THE
STATUTE ITSELF CONDEMNS THE DEFENDANT'S CONDUCT AS A VIOLATION OF LAW
AND NOT THE RULE OF THE CARRIER."  ID., AT 38.  NO COMPLAINT IS MADE AS
TO THESE INTERPRETATIONS OF THE VIRGINIA STATUTE BY THE VIRGINIA
COURT.  FN8 

THE ERRORS OF THE COURT OF APPEALS THAT ARE ASSIGNED AND RELIED UPON
BY APPELLANT ARE IN FORM ONLY TWO.  THE FIRST IS THAT THE DECISION IS
REPUGNANT TO CLAUSE 3, SEC. 8, ARTICLE I OF THE CONSTITUTION OF THE
UNITED STATES,  FN9  AND THE SECOND THE HOLDING THAT POWERS RESERVED TO
THE STATES BY THE TENTH AMENDMENT INCLUDE THE POWER TO REQUIRE AN
INTERSTATE MOTOR PASSENGER TO OCCUPY A SEAT RESTRICTED FOR THE USE OF
HIS RACE.  ACTUALLY, THE FIRST QUESTION ALONE NEEDS CONSIDERATION FOR,
IF THE STATUTE UNLAWFULLY BURDENS INTERSTATE COMMERCE, THE RESERVED
POWERS OF THE STATE WILL NOT VALIDATE IT.  FN10 

WE THINK, AS THE COURT OF APPEALS APPARENTLY DID, THAT THE APPELLANT
IS A PROPER PERSON TO CHALLENGE THE VALIDITY OF THIS STATUTE AS A
BURDEN ON COMMERCE.  FN11  IF IT IS AN INVALID BURDEN, THE CONVICTION
UNDER IT WOULD FAIL.  THE STATUTE AFFECTS APPELLANT AS WELL AS THE
TRANSPORTATION COMPANY.  CONSTITUTIONAL PROTECTION AGAINST BURDENS ON
COMMERCE IS FOR HER BENEFIT ON A CRIMINAL TRIAL FOR VIOLATION OF THE
CHALLENGED STATUTE.  HATCH V. REARDON, 204 U.S. 152, 160; FEDERATION OF
LABOR V. MCADORY, 325 U.S. 450, 463. 

THIS COURT FREQUENTLY MUST DETERMINE THE VALIDITY OF STATE STATUTES
THAT ARE ATTACKED AS UNCONSTITUTIONAL INTERFERENCES WITH THE NATIONAL
POWER OVER INTERSTATE COMMERCE.  THIS APPEAL PRESENTS THAT QUESTION AS
TO A STATUTE THAT COMPELS RACIAL SEGREGATION OF INTERSTATE PASSENGERS
IN VEHICLES MOVING INTERSTATE.  FN12 

THE PRECISE DEGREE OF A PERMISSIBLE RESTRICTION ON STATE POWER CANNOT
BE FIXED GENERALLY OR INDEED NOT EVEN FOR ONE KIND OF STATE
LEGISLATION, SUCH AS TAXATION OR HEALTH OR SAFETY.  FN13 THERE IS A
RECOGNIZED ABSTRACT PRINCIPLE, HOWEVER, THAT MAY BE TAKEN AS A
POSTULATE FOR TESTING WHETHER PARTICULAR STATE LEGISLATION IN THE
ABSENCE OF ACTION BY CONGRESS IS BEYOND STATE POWER.  THIS IS THAT THE
STATE LEGISLATION IS INVALID IF IT UNDULY BURDENS THAT COMMERCE IN
MATTERS WHERE UNIFORMITY IS NECESSARY - NECESSARY IN THE CONSTITUTIONAL
SENSE OF USEFUL IN ACCOMPLISHING A PERMITTED PURPOSE.  FN14  WHERE
UNIFORMITY IS ESSENTIAL FOR THE FUNCTIONING OF COMMERCE, A STATE MAY
NOT INTERPOSE ITS LOCAL REGULATION.  FN15  TOO TRUE IT IS THAT THE
PRINCIPLE LACKS IN PRECISION.  ALTHOUGH THE QUALITY OF SUCH A PRINCIPLE
IS ABSTRACT, ITS APPLICATION TO THE FACTS OF A SITUATION CREATED BY THE
ATTEMPTED ENFORCEMENT OF A STATUTE BRINGS ABOUT A SPECIFIC
DETERMINATION AS TO WHETHER OR NOT THE STATUTE IN QUESTION IS A BURDEN
ON COMMERCE.  WITHIN THE BROAD LIMITS OF THE PRINCIPLE, THE CASES TURN
ON THEIR OWN FACTS. 

IN THE FIELD OF TRANSPORTATION, THERE HAS BEEN A SERIES OF DECISIONS
WHICH HOLD THAT WHERE CONGRESS HAS NOT ACTED AND ALTHOUGH THE STATE
STATUTE AFFECTS INTERSTATE COMMERCE, A STATE MAY VALIDLY ENACT
LEGISLATION WHICH HAS PREDOMINANTLY ONLY A LOCAL INFLUENCE ON THE
COURSE OF COMMERCE N16.  IT IS EQUALLY WELL SETTLED THAT, EVEN WHERE
CONGRESS HAS NOT ACTED, STATE LEGISLATION OR A FINAL COURT ORDER IS
INVALID WHICH MATERIALLY AFFECTS INTERSTATE COMMERCE.  FN17  BECAUSE
THE CONSTITUTION PUTS THE ULTIMATE POWER TO REGULATE COMMERCE IN
CONGRESS, RATHER THAN THE STATES, THE DEGREE OF STATE LEGISLATION'S
INTERFERENCE WITH THAT COMMERCE MAY BE WEIGHED BY FEDERAL COURTS TO
DETERMINE WHETHER THE BURDEN MAKES THE STATUTE UNCONSTITUTIONAL.  FN18
THE COURTS COULD NOT INVALIDATE FEDERAL LEGISLATION FOR THE SAME REASON
BECAUSE CONGRESS, WITHIN THE LIMITS OF THE FIFTH AMENDMENT, HAS
AUTHORITY TO BURDEN COMMERCE IF THAT SEEMS TO IT A DESIRABLE MEANS OF
ACCOMPLISHING A PERMITTED END.  FN19 

THIS STATUTE IS ATTACKED ON THE GROUND THAT IT IMPOSES UNDUE BURDENS
ON INTERSTATE COMMERCE.  IT IS SAID BY THE COURT OF APPEALS TO HAVE
BEEN PASSED IN THE EXERCISE OF THE STATE'S POLICE POWER TO AVOID
FRICTION BETWEEN THE RACES.  BUT THIS COURT POINTED OUT YEARS AGO "THAT
A STATE CANNOT AVOID THE OPERATION OF THIS RULE BY SIMPLY INVOKING THE
CONVENIENT APOLOGETICS OF THE POLICE POWER."  FN20  BURDENS UPON
COMMERCE ARE THOSE ACTIONS OF A STATE WHICH DIRECTLY "IMPAIR THE
USEFULNESS OF ITS FACILITIES FOR SUCH TRAFFIC."  FN21  THAT IMPAIRMENT,
WE THINK, MAY ARISE FROM OTHER CAUSES THAN COSTS OR LONG DELAYS.  A
BURDEN MAY ARISE FROM A STATE STATUTE WHICH REQUIRES INTERSTATE
PASSENGERS TO ORDER THEIR MOVEMENTS ON THE VEHICLE IN ACCORDANCE WITH
LOCAL RATHER THAN NATIONAL REQUIREMENTS. 

ON APPELLANT'S JOURNEY, THIS STATUTE REQUIRED THAT SHE SIT IN
DESIGNATED SEATS IN VIRGINIA.  FN22  CHANGES IN SEAT DESIGNATION MIGHT
BE MADE "AT ANY TIME" DURING THE JOURNEY WHEN "NECESSARY OR PROPER FOR
THE COMFORT AND CONVENIENCE OF PASSENGERS."  THIS OCCURRED IN THIS
INSTANCE.  UPON SUCH CHANGE OF DESIGNATION, THE STATUTE AUTHORIZES THE
OPERATOR OF THE VEHICLE TO REQUIRE, AS HE DID HERE, "ANY PASSENGER TO
CHANGE HIS OR HER SEAT AS IT MAY BE NECESSARY OR PROPER."  FN23  AN
INTERSTATE PASSENGER MUST IF NECESSARY REPEATEDLY SHIFT SEATS WHILE
MOVING IN VIRGINIA TO MEET THE SEATING REQUIREMENTS OF THE CHANGING
PASSENGER GROUP.  ON ARRIVAL AT THE DISTRICT OF COLUMBIA LINE, THE
APPELLANT WOULD HAVE HAD FREEDOM TO OCCUPY ANY AVAILABLE SEAT AND SO TO
THE END OF HER JOURNEY. 

INTERSTATE PASSENGERS TRAVELING VIA MOTOR BUSES BETWEEN THE NORTH AND
SOUTH OR THE EAST AND WEST MAY PASS THROUGH VIRGINIA ON THROUGH LINES
IN THE DAY OR IN THE NIGHT.  THE LARGE BUSES APPROACH THE COMFORT OF
PULLMANS AND HAVE SEATS CONVENIENT FOR REST.  ON SUCH INTERSTATE
JOURNEYS THE ENFORCEMENT OF THE REQUIREMENTS FOR RESEATING WOULD BE
DISTURBING. 

APPELLANT'S ARGUMENT, PROPERLY WE THINK, INCLUDES FACTS BEARING ON
INTERSTATE MOTOR TRANSPORTATION BEYOND THOSE IMMEDIATELY INVOLVED IN
THIS JOURNEY UNDER THE VIRGINIA STATUTORY REGULATIONS.  TO APPRAISE THE
WEIGHT OF THE BURDEN OF THE VIRGINIA STATUTE ON INTERSTATE COMMERCE,
RELATED STATUTES OF OTHER STATES ARE IMPORTANT TO SHOW WHETHER THERE
ARE CUMULATIVE EFFECTS WHICH MAY MAKE LOCAL REGULATION IMPRACTICABLE. 
EIGHTEEN STATES, IT APPEARS, PROHIBIT RACIAL SEPARATION ON PUBLIC
CARRIERS.  FN24  TEN REQUIRE SEPARATION ON MOTOR CARRIERS.  FN25  OF
THESE, ALABAMA APPLIES SPECIFICALLY TO INTERSTATE PASSENGERS WITH AN
EXCEPTION FOR INTERSTATE PASSENGERS WITH THROUGH TICKETS FROM STATES
WITHOUT LAWS ON SEPARATION OF PASSENGERS.  FN26  THE LANGUAGE OF THE
OTHER ACTS, LIKE THIS VIRGINIA STATUTE BEFORE THE COURT OF APPEALS'
DECISION IN THIS CASE, MAY BE SAID TO BE SUSCEPTIBLE TO AN
INTERPRETATION THAT THEY DO OR DO NOT APPLY TO INTERSTATE PASSENGERS. 

IN STATES WHERE SEPARATION OF RACES IS REQUIRED IN MOTOR VEHICLES, A
METHOD OF IDENTIFICATION AS WHITE OR COLORED MUST BE EMPLOYED.  THIS
MAY BE DONE BY DEFINITION.  ANY ASCERTAINABLE NEGRO BLOOD IDENTIFIES A
PERSON AS COLORED FOR PURPOSES OF SEPARATION IN SOME STATES.  FN27  IN
THE OTHER STATES WHICH REQUIRE THE SEPARATION OF THE RACES IN MOTOR
CARRIERS, APPARENTLY NO DEFINITION GENERALLY APPLICABLE OR MADE FOR THE
PURPOSES OF THE STATUTE IS GIVEN.  COURT DEFINITION OR FURTHER
LEGISLATIVE ENACTMENTS WOULD BE REQUIRED TO CLARIFY THE LINE BETWEEN
THE RACES.  OBVIOUSLY THERE MAY BE CHANGES BY LEGISLATION IN THE
DEFINITION.  FN28 

THE INTERFERENCES TO INTERSTATE COMMERCE WHICH ARISE FROM STATE
REGULATION OF RACIAL ASSOCIATION ON INTERSTATE VEHICLES HAS LONG BEEN
RECOGNIZED.  SUCH REGULATION HAMPERS FREEDOM OF CHOICE IN SELECTING
ACCOMMODATIONS.  THE RECENT CHANGES IN TRANSPORTATION BROUGHT ABOUT BY
THE COMING OF AUTOMOBILES DOES NOT SEEM OF GREAT SIGNIFICANCE IN THE
PROBLEM.  PEOPLE OF ALL RACES TRAVEL TODAY MORE EXTENSIVELY THAN IN
1878 WHEN THIS COURT FIRST PASSED UPON STATE REGULATION OF RACIAL
SEGREGATION IN COMMERCE.  THE FACTUAL SITUATION SET OUT IN PRECEDING
PARAGRAPHS EMPHASIZES THE SOUNDNESS OF THIS COURT'S EARLY CONCLUSION IN
HALL V. DECUIR, 95 U.S. 485. 

THE DECUIR CASE AROSE UNDER A STATUTE OF LOUISIANA INTERPRETED BY THE
COURTS OF THAT STATE AND THIS COURT TO REQUIRE PUBLIC CARRIERS "TO GIVE
ALL PERSONS TRAVELLING IN THAT STATE, UPON THE PUBLIC CONVEYANCES
EMPLOYED IN SUCH BUSINESS, EQUAL RIGHTS AND PRIVILEGES IN ALL PARTS OF
THE CONVEYANCE, WITHOUT DISTINCTION OR DISCRIMINATION ON ACCOUNT OF
RACE OR COLOR."  PAGE 487.  DAMAGES WERE AWARDED AGAINST HALL, THE
REPRESENTATIVE OF THE OPERATOR OF A MISSISSIPPI RIVER STEAMBOAT THAT
TRAVERSED THAT RIVER INTERSTATE FROM NEW ORLEANS TO VICKSBURG, FOR
EXCLUDING IN LOUISIANA THE DEFENDANT IN ERROR, A COLORED PERSON, FROM A
CABIN RESERVED FOR WHITES.  THIS COURT REVERSED FOR REASONS WELL STATED
IN THE WORDS OF MR. CHIEF JUSTICE WAITE.  FN29  AS OUR PREVIOUS
DISCUSSION DEMONSTRATES, THE TRANSPORTATION DIFFICULTIES ARISING FROM A
STATUTE THAT REQUIRES COMMINGLING OF THE RACES, AS IN THE DECUIR CASE,
ARE INCREASED BY ONE THAT REQUIRES SEPARATION, AS HERE.  FN30  OTHER
FEDERAL COURTS HAVE LOOKED UPON RACIAL SEPARATION STATUTES AS APPLIED
TO INTERSTATE PASSENGERS AS BURDENS UPON COMMERCE.  FN31 

IN WEIGHING THE FACTORS THAT ENTER INTO OUR CONCLUSION AS TO WHETHER
THIS STATUTE SO BURDENS INTERSTATE COMMERCE OR SO INFRINGES THE
REQUIREMENTS OF NATIONAL UNIFORMITY AS TO BE INVALID, WE ARE MINDFUL OF
THE FACT THAT CONDITIONS VARY BETWEEN NORTHERN OR WESTERN STATES SUCH
AS MAINE OR MONTANA, WITH PRACTICALLY NO COLORED POPULATION; INDUSTRIAL
STATES SUCH AS ILLINOIS, OHIO, NEW JERSEY AND PENNSYLVANIA WITH A
SMALL, ALTHOUGH APPRECIABLE, PERCENTAGE OF COLORED CITIZENS; AND THE
STATES OF THE DEEP SOUTH WITH PERCENTAGES OF FROM TWENTY-FIVE TO NEARLY
FIFTY PER CENT COLORED, ALL WITH VARYING DENSITIES OF THE WHITE AND
COLORED RACES IN CERTAIN LOCALITIES.  LOCAL EFFORTS TO PROMOTE AMICABLE
RELATIONS IN DIFFICULT AREAS BY LEGISLATIVE SEGREGATION IN INTERSTATE
TRANSPORTATION EMERGE FROM THE LATTER RACIAL DISTRIBUTION.  AS NO STATE
LAW CAN REACH BEYOND ITS OWN BORDER NOR BAR TRANSPORTATION OF
PASSENGERS ACROSS ITS BOUNDARIES, DIVERSE SEATING REQUIREMENTS FOR THE
RACES IN INTERSTATE JOURNEYS RESULT.  AS THERE IS NO FEDERAL ACT
DEALING WITH THE SEPARATION OF RACES IN INTERSTATE TRANSPORTATION, WE
MUST DECIDE THE VALIDITY OF THIS VIRGINIA STATUTE ON THE CHALLENGE THAT
IT INTERFERES WITH COMMERCE, AS A MATTER OF BALANCE BETWEEN THE
EXERCISE OF THE LOCAL POLICE POWER AND THE NEED FOR NATIONAL UNIFORMITY
IN THE REGULATIONS FOR INTERSTATE TRAVEL.  IT SEEMS CLEAR TO US THAT
SEATING ARRANGEMENTS FOR THE DIFFERENT RACES IN INTERSTATE MOTOR TRAVEL
REQUIRE A SINGLE, UNIFORM RULE TO PROMOTE AND PROTECT NATIONAL TRAVEL. 
CONSEQUENTLY, WE HOLD THE VIRGINIA STATUTE IN CONTROVERSY INVALID. 
REVERSED.    FN1  VIRGINIA CODE OF 1942, SECS. 4097Z TO 4097DD
INCLUSIVE.  THE SECTIONS ARE DERIVED FROM AN ACT OF GENERAL ASSEMBLY OF
VIRGINIA OF 1930.  ACTS OF ASSEMBLY, VA. 1930, P. 343. 

FN2  ID., SECS. 4097Z, 4097M, 4097S; MORGAN V. COMMONWEALTH, 184 VA.
24, 39, 34 S.E.2D 491. 

FN3  ID., SEC. 4097AA. 

FN4  ID., SEC. 4097Z; SEC. 4097BB. 

FN5  ID., SEC. 4097BB.    FN6  "4097DD.  VIOLATION BY PASSENGERS;
MISDEMEANOR; EJECTION.  - ALL PERSONS WHO FAIL WHILE ON ANY MOTOR
VEHICLE CARRIER, TO TAKE AND OCCUPY THE SEAT OR SEATS OR OTHER SPACE
ASSIGNED TO THEM BY THE DRIVER, OPERATOR OR OTHER PERSON IN CHARGE OF
SUCH VEHICLE, OR BY THE PERSON WHOSE DUTY IT IS TO TAKE UP TICKETS OR
COLLECT FARES FROM PASSENGERS THEREIN, OR WHO FAIL TO OBEY THE
DIRECTIONS OF ANY SUCH DRIVER, OPERATOR OR OTHER PERSON IN CHARGE, AS
AFORESAID, TO CHANGE THEIR SEATS FROM TIME TO TIME AS OCCASIONS
REQUIRE, PURSUANT TO ANY LAWFUL RULE, REGULATION OR CUSTOM IN FORCE BY
SUCH LINES AS TO ASSIGNING SEPARATE SEATS OR OTHER SPACE TO WHITE AND
COLORED PERSONS, RESPECTIVELY, HAVING BEEN FIRST ADVISED OF THE FACT OF
SUCH REGULATION AND REQUESTED TO CONFORM THERETO, SHALL BE DEEMED
GUILTY OF A MISDEMEANOR, AND UPON CONVICTION THEREOF SHALL BE FINED NOT
LESS THAN FIVE DOLLARS NOR MORE THAN TWENTY-FIVE DOLLARS FOR EACH
OFFENSE.  FURTHERMORE, SUCH PERSONS MAY BE EJECTED FROM SUCH VEHICLE BY
ANY DRIVER, OPERATOR OR PERSON IN CHARGE OF SAID VEHICLE, OR BY ANY
POLICE OFFICER OR OTHER CONSERVATOR OF THE PEACE; AND IN CASE SUCH
PERSONS EJECTED SHALL HAVE PAID THEIR FARES UPON SAID VEHICLE, THEY
SHALL NOT BE ENTITLED TO THE RETURN OF ANY PART OF SAME.  FOR THE
REFUSAL OF ANY SUCH PASSENGER TO ABIDE BY THE REQUEST OF THE PERSON IN
CHARGE OF SAID VEHICLE AS AFORESAID, AND HIS CONSEQUENT EJECTION FROM
SAID VEHICLE, NEITHER THE DRIVER, OPERATOR, PERSON IN CHARGE, OWNER,
MANAGER NOR BUS COMPANY OPERATING SAID VEHICLE SHALL BE LIABLE FOR
DAMAGES IN ANY COURT." 

FN7  MORGAN V. COMMONWEALTH, SUPRA, 37.  CF. SMITH V. STATE, 100
TENN. 494, 46 S.W. 566; ALABAMA & VICKSBURG R. CO. V. MORRIS, 103
MISS.  511, 60 SO. 11; SOUTHERN R. CO. V. NORTON, 112 MISS.  302, 73
SO. 1. 

FN8  COMPARE HEBERT V. LOUISIANA, 272 U.S. 312, 317; GENERAL TRADING
CO. V. TAX COMM'N, 322 U.S. 335, 337. 

FN9  "SECTION 8.  THE CONGRESS SHALL HAVE POWER  ...  TO REGULATE
COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL STATES, AND WITH
THE INDIAN TRIBES; ..." 

FN10  CASE V. BOWLES, 327 U.S. 92, 101-102. 

FN11  CF. EDWARDS V. CALIFORNIA, 314 U.S. 160, 172, N. 1. 

FN12  WHEN PASSING UPON A RULE OF A CARRIER THAT REQUIRED SEGREGATION
OF AN INTERSTATE PASSENGER, THIS COURT SAID, "AND WE MUST KEEP IN MIND
THAT WE ARE NOT DEALING WITH THE LAW OF A STATE ATTEMPTING A REGULATION
OF INTERSTATE COMMERCE BEYOND ITS POWER TO MAKE."  CHILES V. CHESAPEAKE
& OHIO R. CO., 218 U.S. 71, 75. 

FN13  CF. GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S. 434, 439; MINTZ
V. BALDWIN, 289 U.S. 346, 352; WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79,
84. 

FN14  SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761, 766-71. 

FN15  COOLEY V. BOARD OF WARDENS, 12 HOW.  299, 319; MINNESOTA RATE
CASES, 230 U.S. 352, 402; KELLY V. WASHINGTON, 302 U.S. 1, 10. 

FN16  STATUTES OR ORDERS DEALING WITH SAFETY OF OPERATIONS:  SMITH V.
ALABAMA, 124 U.S. 465(ALABAMA STATUTE REQUIRING AN EXAMINATION AND
LICENSE OF TRAIN ENGINEERS BEFORE OPERATING IN THE STATE); NASHVILLE,
C. & ST. L.R. CO. V. ALABAMA, 128 U.S. 96(STATUTE REQUIRING EXAMINATION
OF RAILROAD EMPLOYEES AS TO VISION AND COLOR BLINDNESS); NEW YORK, N.H.
& H.R. CO. V. NEW YORK, 165 U.S. 628(NEW YORK STATUTE FORBIDDING THE
USE OF FURNACES OR STOVES IN PASSENGER CARS AND REQUIRING GUARD-POSTS
ON RAILROAD BRIDGES); ERB V. MORASCH, 177 U.S. 584(MUNICIPAL ORDINANCE
LIMITING SPEED OF TRAINS IN CITY TO 6 MILES AN HOUR); ATLANTIC COAST
LINE R. CO. V. GEORGIA, 234 U.S. 280(GEORGIA STATUTE REQUIRING ELECTRIC
HEADLIGHTS ON LOCOMOTIVES); MORRIS V. DUBY, 274 U.S. 135(WEIGHT
RESTRICTIONS ON MOTOR CARRIERS IMPOSED BY ORDER OF OREGON HIGHWAY
COMMISSION); SPROLES V. BINFORD, 286 U.S. 374(SIZE AND WEIGHT
RESTRICTIONS ON TRUCKS IMPOSED BY TEXAS STATUTE); SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177(STATUTE RESTRICTING
WEIGHT AND SIZE OF MOTOR CARRIERS); MAURER V. HAMILTON, 309 U.S.
598(PENNSYLVANIA STATUTE FORBIDDING THE USE OF ITS HIGHWAYS TO ANY
VEHICLE CARRYING ANY OTHER VEHICLE OVER THE HEAD OF THE OPERATOR OF THE
VEHICLE); TERMINAL ASSN. V. TRAINMEN, 318 U.S. 1(ILLINOIS STATUTE
REQUIRING CABOOSES ON FREIGHT TRAINS). 

STATUTES OR ORDERS REQUIRING LOCAL TRAIN SERVICE:  GLADSON V.
MINNESOTA, 166 U.S. 427(STATE STATUTE REQUIRING INTRASTATE TRAIN TO
STOP AT COUNTY SEAT TO TAKE ON AND DISCHARGE PASSENGERS); LAKE SHORE &
MICHIGAN SOUTHERN R. CO. V. OHIO, 173 U.S. 285(STATUTE REQUIRING THREE
TRAINS DAILY, IF SO MANY ARE RUN, TO STOP AT EACH CITY CONTAINING OVER
3,000 INHABITANTS AS APPLIED TO INTERSTATE TRAINS); ATLANTIC COAST LINE
R. CO. V. NORTH CAROLINA CORPORATION COMM'N, 206 U.S. 1(ORDER
REGULATING TRAIN SERVICE, PARTICULARLY REQUIRING TRAIN TO PERMIT
CONNECTION WITH THROUGH TRAINS AT JUNCTION POINT); MISSOURI PACIFIC R.
CO. V. KANSAS, 216 U.S. 262(ORDER DIRECTING THE OPERATION OF INTRASTATE
PASSENGER TRAIN SERVICE OVER SPECIFIED ROUTE). 

STATUTES DEALING WITH EMPLOYMENT OF LABOR - FULL CREW LAWS:  CHICAGO,
R.I. & P.R. CO. V. ARKANSAS, 219 U.S. 453(ARKANSAS FULL CREW LAW
APPLIED TO INTERSTATE TRAINS); ST. LOUIS, I.M. & S.R. CO. V. ARKANSAS,
240 U.S. 518(ARKANSAS FULL CREW LAWS APPLIED TO SWITCHING CREWS);
MISSOURI PACIFIC R. CO. V. NORWOOD, 283 U.S. 249(ARKANSAS FULL CREW
LAWS APPLIED TO FREIGHT AND SWITCHING CREWS). 

FN17  STATUTES OR ORDERS DEALING WITH SAFETY OF OPERATIONS:  KANSAS
CITY SOUTHERN R. CO. V. KAW VALLEY DIST., 233 U.S. 75(ORDER REQUIRING
RAILROAD TO REMOVE ITS BRIDGES OVER RIVER FOR FLOOD CONTROL PURPOSES);
SOUTH COVINGTON & CINCINNATI R. CO. V. COVINGTON, 235 U.S.
537(ORDINANCES REGULATING THE NUMBER OF PASSENGERS TO BE CARRIED IN,
THE NUMBER OF CARS TO BE RUN AND THE TEMPERATURE OF AN INTERSTATE
STREET RAILWAY CAR INVALID; THOSE REQUIRING RAILS ON FRONT AND REAR
PLATFORM, VENTILATION AND CLEANING VALID); SEABOARD AIR LINE R. CO. V.
BLACKWELL, 244 U.S. 310(GEORGIA BLOW POST LAW REQUIRING TRAIN TO BLOW
WHISTLE AND SLOW DOWN ALMOST TO A STOP AT EACH GRADE CROSSING WHERE
NUMEROUS GRADE CROSSINGS WERE INVOLVED.  CF. SOUTHERN R. CO. V. KING,
217 U.S. 524, WHERE ANSWER HELD INSUFFICIENT TO PERMIT PROOF OF BURDEN
OF THE STATUTE ON INTERSTATE COMMERCE); SOUTHERN PACIFIC CO. V.
ARIZONA, 325 U.S. 761(STATUTE LIMITING NUMBER OF CARS IN FREIGHT TRAIN
TO 70 AND PASSENGER CARS TO 14). 

STATUTES OR ORDERS REQUIRING LOCAL TRAIN SERVICE:  ILLINOIS CENTRAL
R. CO. V. ILLINOIS, 163 U.S. 142(STATUTE APPLIED TO REQUIRE FAST MAIL
TRAIN TO DETOUR FROM MAIN LINE IN ORDER TO STOP AT STATION FOR THE
TAKING ON AND DISCHARGE OF PASSENGERS); CLEVELAND, C., C. & ST. L.R.
CO. V. ILLINOIS, 177 U.S. 514(ILLINOIS STATUTE REQUIRING INTERSTATE
     AT EACH STATION); MISSISSIPPI RAILROAD COMM'N V. ILLINOIS
CENTRAL R. CO., 203 U.S. 335(ORDER OF COMMISSION REQUIRING INTERSTATE
TRAIN TO STOP AT SMALL TOWN); ATLANTIC COAST LINE V. WHARTON, 207 U.S.
328(SOUTH CAROLINA STATUTE AND RAILROAD COMMISSION ORDER REQUIRING
INTERSTATE TRAIN TO STOP AT SMALL TOWN); ST. LOUIS SOUTHWESTERN R. CO.
V. ARKANSAS, 217 U.S. 136(STATUTE AND ORDER REQUIRING DELIVERY OF
FREIGHT CARS TO LOCAL SHIPPERS); HERNDON V. CHICAGO, R.I. & P.R. CO.,
218 U.S. 135(STATUTE REQUIRING INTERSTATE TRAIN TO STOP AT JUNCTION
POINT); CHICAGO, B. & Q.R. CO. V. WISCONSIN RAILROAD COMM'N, 237 U.S.
220(WISCONSIN STATUTE REQUIRING INTERSTATE TRAIN TO STOP AT VILLAGES
CONTAINING 200 OR MORE INHABITANTS); MISSOURI, K. & T.R. CO. V. TEXAS,
245 U.S. 484(ORDER REQUIRING TRAINS TO START ON TIME AND FIXING TIME
ALLOWED FOR STOPS AT JUNCTIONS EN ROUTE); ST. LOUIS & S.F.R. CO. V.
PUBLIC SERVICE COMM'N, 254 U.S. 535(ORDER REQUIRING THROUGH TRAINS TO
DETOUR THROUGH A SMALL TOWN); ST. LOUIS-SAN FRANCISCO R. CO. V. PUBLIC
SERVICE COMM'N, 261 U.S. 369(ORDER REQUIRING THAT INTERSTATE TRAINS BE
STOPPED AT SMALL TOWN). 

FN18  SEE SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. AT 770. 

FN19  COMPARE UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144,
146. 

FN20  KANSAS CITY SOUTHERN R. CO. V. KAW VALLEY DIST., 233 U.S. 75,
79. 

FN21  ILLINOIS CENTRAL R. CO. V. ILLINOIS, 163 U.S. 142, 154. 

FN22 THE VIRGINIA CODE OF 1942, SEC. 67, DEFINES A COLORED PERSON,
FOR THE PURPOSE OF THE CODE, AS FOLLOWS:  "EVERY PERSON IN WHOM THERE
IS ASCERTAINABLE ANY NEGRO BLOOD SHALL BE DEEMED AND TAKEN TO BE A
COLORED PERSON  ..."  PROVISIONS FOR VITAL STATISTICS MAKE A RECORD OF
THE RACIAL LINES OF VIRGINIA INHABITANTS.  SECS. 1574 AND 5099A. 

FN23  SEC. 4097BB. 

FN24  CAL. CIV. CODE (DEERING), 1941, SECS. 51-54; COLO. STAT. ANN.,
1935, CH. 35, SECS. 1-10; CONN. GEN. STAT. (SUPP. 1933), SEC. 1160B;
ILL. REV. STAT., 1945, CH. 38, SECS. 125-128G; IND. STAT. (BURNS),
1933, SECS. 10-901, 10-902; IOWA CODE, 1939, SECS. 13251-13252; KAN.
GEN. STAT., 1935, SEC. 21-2424; MASS. LAWS (MICHIE), 1933, CH. 272,
SEC. 98, AS AMENDED 1934; MICH. STAT. ANN., 1938, SECS. 28.343, 28.344;
MINN. STAT. (MASON), 1927, SEC. 7321; NEB. COMP. STAT., 1929, SEC. 23
101; N.J. REV. STAT., 1937, SECS. 10:1-2 TO 10:1-7; N.Y. CIVIL RIGHTS
LAW (MCKINNEY), SECS. 40-41; OHIO CODE (THROCKMORTON), 1940, SECS.
12940-12942; PA. STAT. (PURDON), TIT. 18, SECS. 4654 TO 4655; R.I. GEN.
LAWS, 1938, CH. 606, SECS. 28-29; WASH. REV. STAT. (REMINGTON), 1932,
SEC. 2686(SEMBLE); WIS. STAT., 1943, SEC. 340.75. 

FN25  ALA. CODE, 1940, TIT. 48, SEC. 268; ARK. STAT., 1937(POPE),
SECS. 6921-6927, ACTS 1943, P. 379; GA. CODE, 1933, SEC. 68-616; LA.
GEN. STAT. (DART), 1939, SECS. 5307-5309; MISS.  CODE, 1942, SEC. 7785;
N.C. GEN. STAT., 1943, SEC. 62-109; OKLA. STAT. ANN., 1941, TIT. 47,
SECS. 201-210; S.C. CODE, 1942, SEC. 8530-1; TEX. PEN.  CODE (VERNON),
1936, ART. 1659; VA. CODE, 1942, SECS. 4097Z-4097DD. 

FN26  ALA. CODE 1940, TIT. 48, SEC. 268. 

FN27  ALA. CODE, 1940, TIT. 1, SEC. 2; ARK. STAT. (POPE), 1937, SEC.
1200(SEPARATE COACH LAW); GA. CODE (MICHIE SUPP.), 1928, SEC. 2177;
OKLA. CONST., ART. XXIII, SEC. 11; VA. CODE (MICHIE), 1942, SEC. 67. 

FN28  COMPARE VA. CODE, 1887, SEC. 49, PROVIDING THAT THOSE WHO HAD
ONE-FOURTH OR MORE NEGRO BLOOD WERE TO BE CONSIDERED COLORED.  THIS WAS
CHANGED IN 1910(ACTS, 1910, P. 581) TO READ ONE-SIXTEENTH OR MORE.  IT
WAS AGAIN CHANGED IN 1930 BY ACTS, 1930, P. 97, TO ITS PRESENT FORM,
I.E., ANY ASCERTAINABLE NEGRO BLOOD.  SEE NOTE 22, SUPRA. 

FN29  95 U.S. AT 489: 

"IT WAS TO MEET JUST SUCH A CASE THAT THE COMMERCIAL CLAUSE IN THE
CONSTITUTION WAS ADOPTED.  THE RIVER MISSISSIPPI PASSES THROUGH OR
ALONG THE BORDERS OF TEN DIFFERENT STATES, AND ITS TRIBUTARIES REACH
MANY MORE.  THE COMMERCE UPON THESE WATERS IS IMMENSE, AND ITS
REGULATION CLEARLY A MATTER OF NATIONAL CONCERN.  IF EACH STATE WAS AT
LIBERTY TO REGULATE THE CONDUCT OF CARRIERS WHILE WITHIN ITS
JURISDICTION, THE CONFUSION LIKELY TO FOLLOW COULD NOT BUT BE
PRODUCTIVE OF GREAT INCONVENIENCE AND UNNECESSARY HARDSHIP.  EACH STATE
COULD PROVIDE FOR ITS OWN PASSENGERS AND REGULATE THE TRANSPORTATION OF
ITS OWN FREIGHT, REGARDLESS OF THE INTERESTS OF OTHERS.  NAY MORE, IT
COULD PRESCRIBE RULES BY WHICH THE CARRIER MUST BE GOVERNED WITHIN THE
STATE IN RESPECT TO PASSENGERS AND PROPERTY BROUGHT FROM WITHOUT.  ON
ONE SIDE OF THE RIVER OR ITS TRIBUTARIES HE MIGHT BE REQUIRED TO
OBSERVE ONE SET OF RULES, AND ON THE OTHER ANOTHER.  COMMERCE CANNOT
FLOURISH IN THE MIDST OF SUCH EMBARRASSMENTS.  NO CARRIER OF PASSENGERS
CAN CONDUCT HIS BUSINESS WITH SATISFACTION TO HIMSELF, OR COMFORT TO
THOSE EMPLOYING HIM, IF ON ONE SIDE OF A STATE LINE HIS PASSENGERS,
BOTH WHITE AND COLORED, MUST BE PERMITTED TO OCCUPY THE SAME CABIN, AND
ON THE OTHER BE KEPT SEPARATE.  UNIFORMITY IN THE REGULATIONS BY WHICH
HE IS TO BE GOVERNED FROM ONE END TO THE OTHER OF HIS ROUTE IS A
NECESSITY IN HIS BUSINESS, AND TO SECURE IT CONGRESS, WHICH IS
UNTRAMMELLED BY STATE LINES, HAS BEEN INVESTED WITH THE EXCLUSIVE
LEGISLATIVE POWER OF DETERMINING WHAT SUCH REGULATIONS SHALL BE.  IF
THIS STATUTE CAN BE ENFORCED AGAINST THOSE ENGAGED IN INTER-STATE
COMMERCE, IT MAY BE AS WELL AGAINST THOSE ENGAGED IN FOREIGN; AND THE
MASTER OF A SHIP CLEARING FROM NEW ORLEANS FOR LIVERPOOL, HAVING
PASSENGERS ON BOARD, WOULD BE COMPELLED TO CARRY ALL, WHITE AND
COLORED, IN THE SAME CABIN DURING HIS PASSAGE DOWN THE RIVER, OR BE
SUBJECT TO AN ACTION FOR DAMAGES, 'EXEMPLARY AS WELL AS ACTUAL,' BY ANY
ONE WHO FELT HIMSELF AGGRIEVED BECAUSE HE HAD BEEN EXCLUDED ON ACCOUNT
OF HIS COLOR." 

SEE LOUISVILLE, N.O. & T.R. CO. V. MISSISSIPPI, 133 U.S. 587, 590
91. 

A REGULATION OF THE NUMBER OF PASSENGERS ON INTERSTATE STREET CARS
WAS HELD INVALID IN SOUTH COVINGTON & CINCINNATI R. CO. V. COVINGTON,
235 U.S. 537, 547.  THIS COURT SAID AT 547-48: 

"IF COVINGTON CAN REGULATE THESE MATTERS, CERTAINLY CINCINNATI CAN,
AND INTERSTATE BUSINESS MIGHT BE IMPEDED BY CONFLICTING AND VARYING
REGULATIONS IN THIS RESPECT, WITH WHICH IT MIGHT BE IMPOSSIBLE TO
COMPLY.  ON ONE SIDE OF THE RIVER ONE SET OF REGULATIONS MIGHT BE
ENFORCED, AND ON THE OTHER SIDE QUITE A DIFFERENT SET, AND BOTH SEEKING
TO CONTROL A PRACTICALLY CONTINUOUS MOVEMENT OF CARS.  AS WAS SAID IN
HALL V. DECUIR, 95 U.S. 485, 489, 'COMMERCE CANNOT FLOURISH IN THE
MIDST OF SUCH EMBARRASSMENTS.'"    FN30  SOUTH COVINGTON & CINCINNATI
R. CO. V. KENTUCKY, 252 U.S. 399, RELIED UPON BY APPELLEE, DOES NOT
DECIDE TO THE CONTRARY OF THE HOLDING IN HALL V. DECUIR.  IN THAT CASE
A CARRIER CORPORATION WAS CONVICTED IN THE KENTUCKY COURTS OF VIOLATION
OF A STATE STATUTE THAT REQUIRED IT TO FURNISH CARS WITH SEPARATE
COMPARTMENTS FOR WHITE AND COLORED.  IT OPERATED STREET CARS INTERSTATE
OVER THE LINES OF ANOTHER CORPORATION THAT OWNED TRACKS THAT WERE
WHOLLY INTRASTATE.  THE COURT OF APPEALS OF KENTUCKY HELD THE
CONVICTION GOOD ON THE GROUND THAT THE OFFENDING ACT WAS THE OPERATION
OF THE INTRASTATE RAILROAD IN VIOLATION OF THE STATE STATUTE.  IT WAS
SAID THAT THE STATUTE DID NOT APPLY TO AN INTERSTATE PASSENGER.  SOUTH
COVINGTON & CINCINNATI STREET R. CO. V. COMMONWEALTH, 181 KY. 449, 454,
205 S.W. 603.  THE COURT OF APPEALS REFERRED, WITH CONTINUAL APPROVAL,
AT THAT POINT TO CHILES V. CHESAPEAKE & OHIO R. CO., 125 KY. 299, 304:
"IT IS ADMITTED THAT SECTIONS 795-801 OF THE KENTUCKY STATUTES,
REQUIRING ALL RAILROAD COMPANIES TO FURNISH SEPARATE COACHES FOR
TRANSPORTATION OF WHITE AND COLORED PASSENGERS, AND IMPOSING UPON THE
COMPANY AND CONDUCTORS A PENALTY FOR REFUSING OR FAILING TO CARRY OUT
THE PROVISIONS OF THE LAW, DOES NOT APPLY TO APPELLANT, WHO WAS AN
INTERSTATE PASSENGER; IT BEING CONCEDED THAT THE STATUTE IS ONLY
OPERATIVE WITHIN THE TERRITORIAL LIMITS OF THIS STATE, AND EFFECTIVE AS
TO PASSENGERS WHO TRAVEL FROM ONE POINT WITHIN THE STATE TO ANOTHER
PLACE WITHIN ITS BORDER."  THIS COURT ACCEPTED THIS APPLICATION OF THE
STATE STATUTE AND SAID IT "IS NOT A REGULATION OF INTERSTATE
COMMERCE."  PAGE 403.  PROBABLY WHAT WAS MEANT BY THE OPINIONS WAS THAT
UNDER THE KENTUCKY ACT THE COMPANY WITH WHOLLY INTRASTATE MILEAGE MUST
OPERATE CARS WITH SEPARATE COMPARTMENTS FOR INTRASTATE PASSENGERS. 

FN31  ANDERSON V. LOUISVILLE & N.R. CO., 62 F. 46, 48; WASHINGTON, B.
& A.R. CO. V. WALLER, 53 APP. D.C. 200, 289 F. 598.  SEE ALSO HART V.
STATE, 100 MD. 595, 60 A. 457; CARREY V. SPENCER, 36 N.Y. SUPP. 886. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

THE COMMERCE CLAUSE OF THE CONSTITUTION PROVIDES THAT "CONGRESS SHALL
HAVE POWER  ...  TO REGULATE COMMERCE  ...  AMONG THE SEVERAL STATES." 
I HAVE BELIEVED, AND STILL BELIEVE, THAT THIS PROVISION MEANS THAT
CONGRESS CAN REGULATE COMMERCE AND THAT THE COURTS CANNOT.  BUT IN A
SERIES OF CASES DECIDED IN RECENT YEARS THIS COURT OVER MY PROTEST HAS
HELD THAT THE COMMERCE CLAUSE JUSTIFIES THIS COURT IN NULLIFYING STATE
LEGISLATION WHICH THIS COURT CONCLUDES IMPOSES AN "UNDUE BURDEN" ON
INTERSTATE COMMERCE N1.  I THINK THAT WHETHER STATE LEGISLATION IMPOSES
AN "UNDUE BURDEN" ON INTERSTATE COMMERCE RAISES PURE QUESTIONS OF
POLICY, WHICH THE CONSTITUTION INTENDED SHOULD BE RESOLVED BY THE
CONGRESS. 

VERY RECENTLY A MAJORITY OF THIS COURT REASSERTED ITS POWER TO
INVALIDATE STATE LAWS ON THE GROUND THAT SUCH LEGISLATION PUT AN UNDUE
BURDEN ON COMMERCE.  NIPPERT V. RICHMOND, SUPRA; SOUTHERN PACIFIC CO.
V. ARIZONA, SUPRA.  I THOUGHT THEN, AND STILL BELIEVE, THAT IN THESE
CASES THE COURT WAS ASSUMING THE ROLE OF A "SUPER-LEGISLATURE" IN
DETERMINING MATTERS OF GOVERNMENTAL POLICY.  ID., AT 788, N. 4. 

BUT THE COURT, AT LEAST FOR THE PRESENT, SEEMS COMMITTED TO THIS
INTERPRETATION OF THE COMMERCE CLAUSE.  IN THE SOUTHERN PACIFIC COMPANY
CASE, THE COURT, AS I UNDERSTAND ITS OPINION, FOUND AN "UNDUE BURDEN"
BECAUSE A STATE'S REQUIREMENT FOR SHORTER TRAINS INCREASED THE COST OF
RAILROAD OPERATIONS AND THEREBY DELAYED INTERSTATE COMMERCE AND
IMPAIRED ITS EFFICIENCY.  IN THE NIPPERT CASE A SMALL TAX IMPOSED ON A
SALES SOLICITOR EMPLOYED BY CONCERNS LOCATED OUTSIDE OF VIRGINIA WAS
FOUND TO BE AN "UNDUE BURDEN" EVEN THOUGH A SOLICITOR FOR VIRGINIA
CONCERNS ENGAGED IN THE SAME BUSINESS WOULD HAVE BEEN REQUIRED TO PAY
THE SAME TAX. 

SO LONG AS THE COURT REMAINS COMMITTED TO THE "UNDUE BURDEN ON
COMMERCE FORMULA," I MUST MAKE DECISIONS UNDER IT.  THE "BURDEN ON
COMMERCE" IMPOSED BY THE VIRGINIA LAW HERE UNDER CONSIDERATION SEEMS TO
ME TO BE OF A FAR MORE SERIOUS NATURE THAN THOSE OF THE NIPPERT OR
SOUTHERN PACIFIC COMPANY CASES.  THE SOUTHERN PACIFIC COMPANY OPINION,
MOREOVER, RELIED IN PART ON THE RULE ANNOUNCED IN HALL V. DECUIR, 95
U.S. 485, WHICH CASE HELD THAT THE COMMERCE CLAUSE PROHIBITS A STATE
FROM PASSING LAWS WHICH REQUIRE THAT "ON ONE SIDE OF A STATE LINE  ...
PASSENGERS, BOTH WHITE AND COLORED, MUST BE PERMITTED TO OCCUPY THE
SAME CABIN, AND ON THE OTHER BE KEPT SEPARATE."  THE COURT FURTHER SAID
THAT "UNIFORMITY IN THE REGULATIONS BY WHICH  ...  (A CARRIER) IS TO BE
GOVERNED FROM ONE END TO THE OTHER OF HIS ROUTE IS A NECESSITY IN HIS
BUSINESS" AND THAT IT WAS THE RESPONSIBILITY OF CONGRESS, NOT THE
STATES, TO DETERMINE "WHAT SUCH REGULATIONS SHALL BE."  THE "UNDUE
BURDEN ON COMMERCE FORMULA" CONSEQUENTLY REQUIRES THE MAJORITY'S
DECISION.  IN VIEW OF THE COURT'S PRESENT DISPOSITION TO APPLY THAT
FORMULA, I ACQUIESCE. 

FN1  NIPPERT V. RICHMOND, 327 U.S. 416; SOUTHERN PACIFIC CO. V.
ARIZONA, 325 U.S. 761; MCCARROLL V. DIXIE GREYHOUND LINES, 309 U.S.
176; GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S. 434; ADAMS MFG. CO. V.
STOREN, 304 U.S. 307. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

MY BROTHER BURTON HAS STATED WITH GREAT FORCE REASONS FOR NOT
INVALIDATING THE VIRGINIA STATUTE.  BUT FOR ME HALL V. DECUIR, 95 U.S.
485, IS CONTROLLING.  SINCE IT WAS DECIDED NEARLY SEVENTY YEARS AGO,
THAT CASE ON SEVERAL OCCASIONS HAS BEEN APPROVINGLY CITED AND HAS NEVER
BEEN QUESTIONED.  CHIEFLY FOR THIS REASON I CONCUR IN THE OPINION OF
THE COURT. 

THE IMPOSITION UPON NATIONAL SYSTEMS OF TRANSPORTATION OF A CRAZY
QUILT OF STATE LAWS WOULD OPERATE TO BURDEN COMMERCE UNREASONABLY,
WHETHER SUCH CONTRADICTORY AND CONFUSING STATE LAWS CONCERN RACIAL
COMMINGLING OR RACIAL SEGREGATION.  THIS DOES NOT IMPLY THE NECESSITY
FOR A NATIONALLY UNIFORM REGULATION OF ARRANGEMENTS FOR PASSENGERS ON
INTERSTATE CARRIERS.  UNLIKE OTHER POWERS OF CONGRESS (SEE ART. I, SEC.
8, CL. 1, CONCERNING "DUTIES, IMPOSTS AND EXCISES"; ART. I, SEC. 8, CL.
4, CONCERNING "NATURALIZATION"; ART. I, SEC. 8, CL. 4, CONCERNING
"BANKRUPTCIES"), THE POWER TO REGULATE COMMERCE DOES NOT REQUIRE
GEOGRAPHIC UNIFORMITY.  CONGRESS MAY DEVISE A NATIONAL POLICY WITH DUE
REGARD TO VARYING INTERESTS OF DIFFERENT REGIONS.  E.G., 37 STAT. 699,
27 U.S.C. SEC. 122; CLARK DISTILLING CO. V. WESTERN MARYLAND R. CO.,
242 U.S. 311; 45 STAT. 1084, 49 U.S.C. SEC. 60; WHITFIELD V. OHIO, 297
U.S. 431.  THE STATES CANNOT IMPOSE DIVERSITY OF TREATMENT WHEN SUCH
DIVERSE TREATMENT WOULD RESULT IN UNREASONABLE BURDENS ON COMMERCE. 
BUT CONGRESS MAY EFFECTIVELY EXERCISE ITS POWER UNDER THE COMMERCE
CLAUSE WITHOUT THE NECESSITY OF A BLANKET RULE FOR THE COUNTRY. 

MR. JUSTICE BURTON, DISSENTING. 

ON THE APPLICATION OF THE INTERSTATE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION TO THIS CASE, I FIND MYSELF OBLIGED TO DIFFER FROM THE
MAJORITY OF THE COURT.  I WOULD SUSTAIN THE VIRGINIA STATUTE AGAINST
THAT CLAUSE.  THE ISSUE IS NEITHER THE DESIRABILITY OF THE STATUTE NOR
THE CONSTITUTIONALITY OF RACIAL SEGREGATION AS SUCH.  THE OPINION OF
THE COURT DOES NOT CLAIM THAT THE VIRGINIA STATUTE, REGULATING SEATING
ARRANGEMENTS FOR INTERSTATE PASSENGERS IN MOTOR VEHICLES, VIOLATES THE
FOURTEENTH AMENDMENT OR IS IN CONFLICT WITH A FEDERAL STATUTE.  THE
COURT HOLDS THIS STATUTE UNCONSTITUTIONAL FOR BUT ONE REASON.  IT HOLDS
THAT THE BURDEN IMPOSED BY THE STATUTE UPON THE NATION'S INTEREST IN
INTERSTATE COMMERCE SO GREATLY OUTWEIGHS THE CONTRIBUTION MADE BY THE
STATUTE TO THE STATE'S INTEREST IN ITS PUBLIC WELFARE AS TO MAKE IT
UNCONSTITUTIONAL. 

THE UNDUE BURDEN UPON INTERSTATE COMMERCE THUS RELIED UPON BY THE
COURT IS NOT COMPLAINED OF BY THE FEDERAL GOVERNMENT, BY ANY STATE, OR
BY ANY CARRIER.  THIS STATUTE HAS BEEN IN EFFECT SINCE 1930.  THE
CARRIER CONCERNED IS OPERATING UNDER REGULATIONS OF ITS OWN WHICH
CONFORM TO THE STATUTE.  THE STATUTE CONFORMS TO THE POLICY ADOPTED BY
VIRGINIA AS TO STEAMBOATS (1900), ELECTRIC OR STREET CARS AND RAILROADS
(1902-1904).  FN1  ITS VALIDITY HAS BEEN UNANIMOUSLY UPHELD BY THE
SUPREME COURT OF APPEALS OF VIRGINIA.  THE ARGUMENT RELIED UPON BY THE
MAJORITY OF THIS COURT TO ESTABLISH THE UNDUE BURDEN OF THIS STATUTE ON
INTERSTATE COMMERCE IS THE LACK OF UNIFORMITY BETWEEN ITS PROVISIONS
AND THOSE OF THE LAWS OF OTHER STATES ON THE SUBJECT OF THE RACIAL
SEPARATION OF INTERSTATE PASSENGERS ON MOTOR VEHICLES. 

IF THE MERE DIVERSITY BETWEEN THE VIRGINIA STATUTE AND COMPARABLE
STATUTES OF OTHER STATES IS SO SERIOUS AS TO RENDER THE VIRGINIA
STATUTE INVALID, IT PROBABLY MEANS THAT THE COMPARABLE STATUTES OF
THOSE OTHER STATES, BEING DIVERSE FROM IT AND FROM EACH OTHER, ARE
EQUALLY INVALID.  THIS IS ESPECIALLY TRUE UNDER THAT ASSUMPTION OF THE
MAJORITY WHICH DISREGARDS SECTIONAL INTERSTATE TRAVEL BETWEEN
NEIGHBORING STATES HAVING SIMILAR LAWS, TO HOLD "THAT SEATING
ARRANGEMENTS FOR THE DIFFERENT RACES IN INTERSTATE MOTOR TRAVEL REQUIRE
A SINGLE, UNIFORM RULE TO PROMOTE AND PROTECT NATIONAL TRAVEL."  MORE
SPECIFICALLY, THE OPINION OF THE COURT INDICATES THAT THE LAWS OF THE
10 CONTIGUOUS STATES OF VIRGINIA, NORTH CAROLINA, SOUTH CAROLINA,
GEORGIA, ALABAMA, MISSISSIPPI, LOUISIANA, ARKANSAS, TEXAS AND OKLAHOMA
REQUIRE RACIAL SEPARATION OF PASSENGERS ON MOTOR CARRIERS, WHILE THOSE
OF 18 OTHER STATES PROHIBIT RACIAL SEPARATION OF PASSENGERS ON PUBLIC
CARRIERS.  ON THE PRECEDENT OF THIS CASE, THE LAWS OF THE 10 STATES
REQUIRING RACIAL SEPARATION APPARENTLY CAN BE INVALIDATED BECAUSE OF
THEIR SHARP DIVERSITY FROM THE LAWS IN THE REST OF THE UNION, OR, IN A
LESSER DEGREE, BECAUSE OF THEIR DIVERSITY FROM ONE ANOTHER.  SUCH
INVALIDATION, ON THE GROUND OF LACK OF NATION-WIDE UNIFORMITY, MAY LEAD
TO QUESTIONING THE VALIDITY OF THE LAWS OF THE 18 STATES NOW
PROHIBITING RACIAL SEPARATION OF PASSENGERS, FOR THOSE LAWS LIKEWISE
DIFFER SHARPLY FROM LAWS ON THE SAME SUBJECT IN OTHER PARTS OF THE
UNION AND, IN A LESSER DEGREE, FROM ONE ANOTHER.  IN THE ABSENCE OF
FEDERAL LAW, THIS MAY ELIMINATE STATE REGULATION OF RACIAL SEPARATION
IN THE SEATING OF INTERSTATE PASSENGERS ON MOTOR VEHICLES AND LEAVE THE
REGULATION OF THE SUBJECT TO THE RESPECTIVE CARRIERS. 

THE PRESENT DECISION WILL LEAD TO THE QUESTIONING OF THE VALIDITY OF
STATUTORY REGULATION OF THE SEATING OF INTRASTATE PASSENGERS IN THE
SAME MOTOR VEHICLES WITH INTERSTATE PASSENGERS.  THE DECISION MAY ALSO
RESULT IN INCREASED LACK OF UNIFORMITY BETWEEN REGULATIONS AS TO
SEATING ARRANGEMENTS ON MOTOR VEHICLES LIMITED TO INTRASTATE PASSENGERS
IN A GIVEN STATE AND THOSE ON MOTOR VEHICLES ENGAGED IN INTERSTATE
BUSINESS IN THE SAME STATE OR ON CONNECTING ROUTES. 

THE BASIC WEAKNESS IN THE APPELLANT'S CASE IS THE LACK OF FACTS AND
FINDINGS ESSENTIAL TO DEMONSTRATE THE EXISTENCE OF SUCH A SERIOUS AND
MAJOR BURDEN UPON THE NATIONAL INTEREST IN INTERSTATE COMMERCE AS TO
OUTWEIGH WHATEVER STATE OR LOCAL BENEFITS ARE ATTRIBUTABLE TO THE
STATUTE AND WHICH WOULD BE LOST BY ITS INVALIDATION.  THE COURT
RECOGNIZES THAT IT SERVES AS "THE FINAL ARBITER OF THE COMPETING
DEMANDS OF STATE AND NATIONAL INTERESTS"  FN2  AND THAT IT MUST FAIRLY
DETERMINE, IN THE ABSENCE OF CONGRESSIONAL ACTION, WHETHER THE STATE
STATUTE ACTUALLY IMPOSES SUCH AN UNDUE BURDEN UPON INTERSTATE COMMERCE
AS TO INVALIDATE THAT STATUTE.  IN WEIGHING THESE COMPETING DEMANDS, IF
THIS COURT IS TO JUSTIFY THE INVALIDATION OF THIS STATUTE, IT MUST,
FIRST OF ALL, BE SATISFIED THAT THE MANY YEARS OF EXPERIENCE OF THE
STATE AND THE CARRIER THAT ARE REFLECTED IN THIS STATE LAW SHOULD BE
SET ASIDE.  IT REPRESENTS THE TESTED PUBLIC POLICY OF VIRGINIA
REGULARLY ENACTED, LONG MAINTAINED AND CURRENTLY OBSERVED.  THE
OFFICIALLY DECLARED STATE INTERESTS, EVEN WHEN AFFECTING INTERSTATE
COMMERCE, SHOULD NOT BE LAID ASIDE SUMMARILY BY THIS COURT IN THE
ABSENCE OF CONGRESSIONAL ACTION.  IT IS ONLY CONGRESS THAT CAN SUPPLY
AFFIRMATIVE NATIONAL UNIFORMITY OF ACTION. 

IN SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761, 768-769, 770, THIS
COURT SPEAKING THROUGH THE LATE CHIEF JUSTICE SAID: 

"IN THE APPLICATION OF THESE PRINCIPLES SOME ENACTMENTS MAY BE FOUND
TO BE PLAINLY WITHIN AND OTHERS PLAINLY WITHOUT STATE POWER.  BUT
BETWEEN THESE EXTREMES LIES THE INFINITE VARIETY OF CASES, IN WHICH
REGULATION OF LOCAL MATTERS MAY ALSO OPERATE AS A REGULATION OF
COMMERCE, IN WHICH RECONCILIATION OF THE CONFLICTING CLAIMS OF STATE
AND NATIONAL POWER IS TO BE ATTAINED ONLY BY SOME APPRAISAL AND
ACCOMMODATION OF THE COMPETING DEMANDS OF THE STATE AND NATIONAL
INTERESTS INVOLVED.  FN3 

     .         .        .         .         . 

"BUT IN GENERAL CONGRESS HAS LEFT IT TO THE COURTS TO FORMULATE THE
RULES THUS INTERPRETING THE COMMERCE CLAUSE IN ITS APPLICATION,
DOUBTLESS BECAUSE IT HAS APPRECIATED THE DESTRUCTIVE CONSEQUENCES TO
THE COMMERCE OF THE NATION IF THEIR (I.E. THE COURTS') PROTECTION WERE
WITHDRAWN, ...  AND HAS BEEN AWARE THAT IN THEIR APPLICATION STATE LAWS
WILL NOT BE INVALIDATED WITHOUT THE SUPPORT OF RELEVANT FACTUAL
MATERIAL WHICH WILL 'AFFORD A SURE BASIS' FOR AN INFORMED JUDGMENT
N4....  MEANWHILE, CONGRESS HAS ACCOMMODATED ITS LEGISLATION, AS HAVE
THE STATES, TO THESE RULES AS AN ESTABLISHED FEATURE OF OUR
CONSTITUTIONAL SYSTEM.  THERE HAS THUS BEEN LEFT TO THE STATES WIDE
SCOPE FOR THE REGULATION OF MATTERS OF LOCAL STATE CONCERN, EVEN THOUGH
IT IN SOME MEASURE AFFECTS THE COMMERCE, PROVIDED IT DOES NOT
MATERIALLY RESTRICT THE FREE FLOW OF COMMERCE ACROSS STATE LINES, OR
INTERFERE WITH IT IN MATTERS WITH RESPECT TO WHICH UNIFORMITY OF
REGULATION IS OF PREDOMINANT NATIONAL CONCERN." 

THE ABOVE-QUOTED REQUIREMENT OF A FACTUAL ESTABLISHMENT OF "A SURE
BASIS" FOR AN INFORMED JUDGMENT BY THIS COURT CALLS FOR A FIRM AND
DEMONSTRABLE BASIS OF ACTION ON THE PART OF THIS COURT.  IN THE RECORD
OF THIS CASE THERE ARE NO FINDINGS OF FACT THAT DEMONSTRATE ADEQUATELY
THE EXCESSIVENESS OF THE BURDEN, IF ANY, WHICH THE VIRGINIA STATUTE HAS
IMPOSED UPON INTERSTATE COMMERCE, DURING THE MANY YEARS SINCE ITS
ENACTMENT, IN COMPARISON WITH THE RESULTING EFFECT IN VIRGINIA OF THE
INVALIDATION OF THIS STATUTE N5.  THE COURT RELIES LARGELY UPON THE
RECITAL OF A NATION-WIDE DIVERSITY AMONG STATE STATUTES ON THIS SUBJECT
WITHOUT A DEMONSTRATION OF THE FACTUAL SITUATION IN THOSE STATES, AND
ESPECIALLY IN VIRGINIA.  THE COURT THEREFORE IS NOT ABLE IN THIS CASE
TO MAKE THAT NECESSARY "APPRAISAL AND ACCOMMODATION OF THE COMPETING
DEMANDS OF THE STATE AND NATIONAL INTERESTS INVOLVED" WHICH SHOULD BE
THE FOUNDATION FOR PASSING UPON THE VALIDITY OF A STATE STATUTE OF LONG
STANDING AND OF IMPORTANT LOCAL SIGNIFICANCE IN THE EXERCISE OF THE
STATE POLICE POWER. 

THE COURT MAKES ITS OWN FURTHER ASSUMPTION THAT THE QUESTION OF
RACIAL SEPARATION OF INTERSTATE PASSENGERS IN MOTOR VEHICLE CARRIERS
REQUIRES NATIONAL UNIFORMITY OF TREATMENT RATHER THAN DIVERSITY OF
TREATMENT AT THIS TIME.  THE INACTION OF CONGRESS IS AN IMPORTANT
INDICATION THAT, IN THE OPINION OF CONGRESS, THIS ISSUE IS BETTER MET
WITHOUT NATIONALLY UNIFORM AFFIRMATIVE REGULATION THAN WITH IT.
LEGISLATION RAISING THE ISSUE LONG HAS BEEN, AND IS NOW, PENDING BEFORE
CONGRESS BUT HAS NOT REACHED THE FLOOR OF EITHER HOUSE.  FN6  THE FACT
THAT 18 STATES HAVE PROHIBITED IN SOME DEGREE RACIAL SEPARATION IN
PUBLIC CARRIERS IS IMPORTANT PROGRESS IN THE DIRECTION OF UNIFORMITY. 
THE FACT, HOWEVER, THAT 10 CONTIGUOUS STATES IN SOME DEGREE REQUIRE, BY
STATE LAW, SOME RACIAL SEPARATION OF PASSENGERS ON MOTOR CARRIERS
INDICATES A DIFFERENT APPRAISAL BY THEM OF THE NEEDS AND CONDITIONS IN
THOSE AREAS THAN IN OTHERS.  THE REMAINING 20 STATES HAVE NOT GONE
EQUALLY FAR IN EITHER DIRECTION.  THIS RECITAL OF EXISTING LEGISLATIVE
DIVERSITY IS EVIDENCE AGAINST THE VALIDITY OF THE ASSUMPTION BY THIS
COURT THAT THERE EXISTS TODAY A REQUIREMENT OF A SINGLE UNIFORM
NATIONAL RULE ON THE SUBJECT. 

IT IS A FUNDAMENTAL CONCEPT OF OUR CONSTITUTION THAT WHERE CONDITIONS
ARE DIVERSE THE SOLUTION OF PROBLEMS ARISING OUT OF THEM MAY WELL COME
THROUGH THE APPLICATION OF DIVERSIFIED TREATMENT MATCHING THE
DIVERSIFIED NEEDS AS DETERMINED BY OUR LOCAL GOVERNMENTS.  UNIFORMITY
OF TREATMENT IS APPROPRIATE WHERE A SUBSTANTIAL UNIFORMITY OF
CONDITIONS EXISTS. 

FN1  STEAMBOATS:  ACTS OF 1900, P. 340; ELECTRIC OR STREET CARS:
ACTS OF 1902-1904, P. 990; RAILROADS:  ACTS OF 1902-1904, P. 987.  VA.
CODE ANN., 1942, SECS. 4022-4025; 3978-3983; 3962-3969. 

FN2  SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761, 769. 

FN3  SEE PARKER V. BROWN, 317 U.S. 341, 362; DI SANTO V.
PENNSYLVANIA, 273 U.S. 34, 44. 

FN4  TERMINAL ASSN. V. TRAINMEN, 318 U.S. 1, 8. 

FN5  HALL V. DECUIR, 95 U.S. 485, DOES NOT REQUIRE THE CONCLUSION
REACHED BY THE COURT IN THIS CASE.  THE LOUISIANA STATUTE IN THE DECUIR
CASE COULD HAVE BEEN INVALIDATED, AT THAT TIME AND PLACE, AS AN UNDUE
BURDEN ON INTERSTATE COMMERCE UNDER THE RULES CLEARLY STATED BY CHIEF
JUSTICE STONE IN SOUTHERN PACIFIC CO. V. ARIZONA, SUPRA, AND AS APPLIED
IN THIS DISSENTING OPINION.  IF THE DECUIR CASE IS FOLLOWED WITHOUT
WEIGHING THE SURROUNDING FACTS, IT WOULD INVALIDATE TODAY STATUTES IN
NEW ENGLAND STATES PROHIBITING RACIAL SEPARATION IN SEATING
ARRANGEMENTS ON CARRIERS, WHICH WOULD NOT BE INVALIDATED UNDER THE
DOCTRINE STATED IN THE ARIZONA CASE. 

FN6  SEE H.R. 8821, 75TH CONG., 3D SESS., 83 CONG. REC. 74; H.R. 182,
76TH CONG., 1ST SESS., 84 CONG. REC. 27; H.R. 112, 77TH CONG., 1ST
SESS., 87 CONG. REC. 13. 
..END :






















PORTER V. WARNER CO., 328 U.S. 395 


NO. 793.  ARGUED MAY 2, 3, 1946.  - DECIDED JUNE 3, 1946.  - 151 F.2D
529, REVERSED. 


1.  IN AN ENFORCEMENT PROCEEDING UNDER SEC. 205(A) OF THE EMERGENCY
PRICE CONTROL ACT OF 1942, A FEDERAL DISTRICT COURT HAS POWER TO ORDER
RESTITUTION OF RENTS COLLECTED BY A LANDLORD IN EXCESS OF MAXIMUMS
ESTABLISHED BY REGULATIONS ISSUED UNDER THE ACT.  PP. 398-399. 

2.  UNDER THE PROVISION OF SEC. 205(A) AUTHORIZING THE DISTRICT
COURT, UPON A PROPER SHOWING, TO GRANT "A PERMANENT OR TEMPORARY
INJUNCTION, RESTRAINING ORDER, OR OTHER ORDER," AN ORDER FOR THE
RECOVERY AND RESTITUTION OF ILLEGAL RENTS MAY BE CONSIDERED A PROPER
"OTHER ORDER" EITHER (1) AS AN EQUITABLE ADJUNCT TO AN INJUNCTION
DECREE, OR (2) AS AN ORDER APPROPRIATE AND NECESSARY TO ENFORCE
COMPLIANCE WITH THE ACT.  PP. 399, 400. 

3.  THE LEGISLATIVE BACKGROUND OF SEC. 205(A) SUPPORTS THE CONCLUSION
THAT THE TRADITIONAL EQUITY POWERS OF A COURT REMAIN UNIMPAIRED IN A
PROCEEDING UNDER THAT SECTION SO THAT AN ORDER OF RESTITUTION MAY BE
MADE.  P. 400. 

4.  THE PROVISION OF SEC. 205(E) AUTHORIZING AN AGGRIEVED TENANT, AND
IN CERTAIN CIRCUMSTANCES THE PRICE ADMINISTRATOR, TO SUE FOR DAMAGES
DOES NOT CONFLICT, EXCEPT AS TO AN AWARD OF DAMAGES, WITH THE
JURISDICTION OF EQUITY COURTS UNDER SEC. 205(A) TO ISSUE WHATEVER
"OTHER ORDER" MAY BE NECESSARY TO VINDICATE THE PUBLIC INTEREST, TO
COMPEL COMPLIANCE WITH THE ACT, AND TO PREVENT AND UNDO INFLATIONARY
TENDENCIES.  PP. 401-402. 

5.  IN CONSIDERING A RESTITUTION ORDER WHERE THERE ARE CONFLICTING
CLAIMS BETWEEN TENANTS AND LANDLORD AS TO THE AMOUNTS DUE, THE DISTRICT
COURT HAS INHERENT POWER TO BRING IN ALL INTERESTED PARTIES AND SETTLE
THE CONTROVERSIES OR TO RETAIN THE CASE UNTIL THE MATTERS ARE OTHERWISE
LITIGATED.  P. 403. 

PORTER, PRICE ADMINISTRATOR, V. WARNER HOLDING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

THE PRICE ADMINISTRATOR BROUGHT SUIT UNDER SEC. 205(A) OF THE
EMERGENCY PRICE CONTROL ACT OF 1942 TO ENJOIN RESPONDENT FROM VIOLATING
THE ACT AND TO REQUIRE RESPONDENT TO MAKE RESTITUTION OF RENTS
COLLECTED IN EXCESS OF MAXIMUMS ESTABLISHED BY REGULATIONS ISSUED UNDER
THE ACT.  THE DISTRICT COURT ENJOINED RESPONDENT FROM VIOLATING THE ACT
BUT DENIED A RESTITUTION ORDER.  60 F.SUPP.  513.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  151 F.2D 529.  THIS COURT GRANTED CERTIORARI.  327
U.S. 773.  REVERSED, P. 403. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CONCERNED WITH THE POWER OF A FEDERAL COURT, IN
AN ENFORCEMENT PROCEEDING UNDER SEC. 205(A) OF THE EMERGENCY PRICE
CONTROL ACT OF 1942,  FN1  TO ORDER RESTITUTION OF RENTS COLLECTED BY A
LANDLORD IN EXCESS OF THE PERMISSIBLE MAXIMUMS. 

THE WARNER HOLDING COMPANY, THE RESPONDENT, OWNS EIGHT APARTMENT
HOUSES IN MINNEAPOLIS, MINNESOTA, CONTAINING APPROXIMATELY 280 DWELLING
UNITS.  BETWEEN NOVEMBER 1, 1942, AND JUNE 29, 1943, IT DEMANDED AND
RECEIVED RENTS IN EXCESS OF THOSE PERMITTED BY THE APPLICABLE MAXIMUM
RENT REGULATIONS ISSUED UNDER THE ACT.  THE ADMINISTRATOR OF THE OFFICE
OF PRICE ADMINISTRATION THEN BROUGHT THIS ACTION IN THE DISTRICT COURT
TO RESTRAIN THE RESPONDENT FROM CONTINUING TO EXCEED THE RENT
CEILINGS.  THE COMPLAINT WAS LATER AMENDED TO SEEK, IN ADDITION, A
DECREE REQUIRING THE RESPONDENT "TO TENDER TO SUCH PERSONS AS ARE
ENTITLED THERETO A REFUND OF ALL AMOUNTS COLLECTED BY DEFENDANT FROM
TENANTS AS RENT FOR THE USE AND OCCUPANCY OF HOUSING ACCOMMODATIONS IN
EXCESS OF THE MAXIMUM RENTS ESTABLISHED BY SAID REGULATION, PROVIDED,
HOWEVER, THAT DEFENDANT SHALL NOT BE REQUIRED TO MAKE SUCH TENDER TO
ANY PERSON WHO HAS COMMENCED AN ACTION AGAINST DEFENDANT UNDER SECTION
205(E) OF THE EMERGENCY PRICE CONTROL ACT OF 1942 ALLEGING THE
COLLECTION BY DEFENDANT OF RENT IN EXCESS OF THE MAXIMUM RENTS
ESTABLISHED BY SAID REGULATION." 

THE DISTRICT COURT ENJOINED RESPONDENT FROM CONTINUING TO COLLECT
RENTS IN EXCESS OF THE LEGAL MAXIMUMS BUT DECLINED TO ORDER
RESTITUTION.  60 F.SUPP.  513.  THE EIGHTH CIRCUIT COURT OF APPEALS
AFFIRMED THE JUDGMENT.  151 F.2D 529.  BOTH COURTS HELD THAT THERE WAS
NO JURISDICTION UNDER THE STATUTE TO ORDER RESTITUTION.  WE GRANTED
CERTIORARI BECAUSE THE RESULT WAS IN CONFLICT WITH THAT REACHED BY THE
SIXTH CIRCUIT COURT OF APPEALS IN BOWLES V. SKAGGS, 151 F.2D 817, AND
BECAUSE OF THE OBVIOUS IMPORTANCE OF THE ISSUE IN THE ADMINISTRATION
AND ENFORCEMENT OF THE EMERGENCY PRICE CONTROL ACT. 

THIS PROCEEDING WAS INSTITUTED BY THE ADMINISTRATOR UNDER SEC. 205(A)
OF THE ACT, WHICH PROVIDES:  "WHENEVER IN THE JUDGMENT OF THE
ADMINISTRATOR ANY PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY ACTS
OR PRACTICES WHICH CONSTITUTE OR WILL CONSTITUTE A VIOLATION OF ANY
PROVISION OF SECTION 4 OF THIS ACT, HE MAY MAKE APPLICATION TO THE
APPROPRIATE COURT FOR AN ORDER ENJOINING SUCH ACTS OR PRACTICES, OR FOR
AN ORDER ENFORCING COMPLIANCE WITH SUCH PROVISION, AND UPON A SHOWING
BY THE ADMINISTRATOR THAT SUCH PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE
IN ANY SUCH ACTS OR PRACTICES A PERMANENT OR TEMPORARY INJUNCTION,
RESTRAINING ORDER, OR OTHER ORDER SHALL BE GRANTED WITHOUT BOND." 

THUS THE ADMINISTRATOR INVOKED THE JURISDICTION OF THE DISTRICT COURT
TO ENJOIN ACTS AND PRACTICES MADE ILLEGAL BY THE ACT AND TO ENFORCE
COMPLIANCE WITH THE ACT.  SUCH A JURISDICTION IS AN EQUITABLE ONE. 
UNLESS OTHERWISE PROVIDED BY STATUTE, ALL THE INHERENT EQUITABLE POWERS
OF THE DISTRICT COURT ARE AVAILABLE FOR THE PROPER AND COMPLETE
EXERCISE OF THAT JURISDICTION.  AND SINCE THE PUBLIC INTEREST IS
INVOLVED IN A PROCEEDING OF THIS NATURE, THOSE EQUITABLE POWERS ASSUME
AN EVEN BROADER AND MORE FLEXIBLE CHARACTER THAN WHEN ONLY A PRIVATE
CONTROVERSY IS AT STAKE.  VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300
U.S. 515, 552.  POWER IS THEREBY RESIDENT IN THE DISTRICT COURT, IN
EXERCISING THIS JURISDICTION, "TO DO EQUITY AND TO MOULD EACH DECREE TO
THE NECESSITIES OF THE PARTICULAR CASE."  HECHT CO. V. BOWLES, 321 U.S.
321, 329.  IT MAY ACT SO AS TO ADJUST AND RECONCILE COMPETING CLAIMS
AND SO AS TO ACCORD FULL JUSTICE TO ALL THE REAL PARTIES IN INTEREST;
IF NECESSARY, PERSONS NOT ORIGINALLY CONNECTED WITH THE LITIGATION MAY
BE BROUGHT BEFORE THE COURT SO THAT THEIR RIGHTS IN THE SUBJECT MATTER
MAY BE DETERMINED AND ENFORCED.  IN ADDITION, THE COURT MAY GO BEYOND
THE MATTERS IMMEDIATELY UNDERLYING ITS EQUITABLE JURISDICTION AND
DECIDE WHATEVER OTHER ISSUES AND GIVE WHATEVER OTHER RELIEF MAY BE
NECESSARY UNDER THE CIRCUMSTANCES.  ONLY IN THAT WAY CAN EQUITY DO
COMPLETE RATHER THAN TRUNCATED JUSTICE.  CAMP V. BOYD, 229 U.S. 530,
551-552. 

MOREOVER, THE COMPREHENSIVENESS OF THIS EQUITABLE JURISDICTION IS NOT
TO BE DENIED OR LIMITED IN THE ABSENCE OF A CLEAR AND VALID LEGISLATIVE
COMMAND.  UNLESS A STATUTE IN SO MANY WORDS, OR BY A NECESSARY AND
INESCAPABLE INFERENCE, RESTRICTS THE COURT'S JURISDICTION IN EQUITY,
THE FULL SCOPE OF THAT JURISDICTION IS TO BE RECOGNIZED AND APPLIED. 
"THE GREAT PRINCIPLES OF EQUITY, SECURING COMPLETE JUSTICE, SHOULD NOT
BE YIELDED TO LIGHT INFERENCES, OR DOUBTFUL CONSTRUCTION."  BROWN V.
SWANN, 10 PET. 497, 503.  SEE ALSO HECHT CO. V. BOWLES, SUPRA, 330. 

IT IS READILY APPARENT FROM THE FOREGOING THAT A DECREE COMPELLING
ONE TO DISGORGE PROFITS, RENTS OR PROPERTY ACQUIRED IN VIOLATION OF THE
EMERGENCY PRICE CONTROL ACT MAY PROPERLY BE ENTERED BY A DISTRICT COURT
ONCE ITS EQUITY JURISDICTION HAS BEEN INVOKED UNDER SEC. 205(A). 
INDEED, THE LANGUAGE OF SEC. 205(A) ADMITS OF NO OTHER CONCLUSION.  IT
EXPRESSLY ENVISAGES APPLICATIONS BY THE ADMINISTRATOR FOR ORDERS
ENJOINING VIOLATIONS OF THE ACT AND FOR ORDERS ENFORCING COMPLIANCE
WITH THE ACT; AND IT EXPRESSLY AUTHORIZES THE DISTRICT COURT, UPON A
PROPER SHOWING, TO GRANT "A PERMANENT OR TEMPORARY INJUNCTION,
RESTRAINING ORDER, OR OTHER ORDER."  AS RECOGNIZED IN HECHT CO. V.
BOWLES, SUPRA, 328, THE TERM "OTHER ORDER" CONTEMPLATES A REMEDY OTHER
THAN THAT OF AN INJUNCTION OR RESTRAINING ORDER, A REMEDY ENTERED IN
THE EXERCISE OF THE DISTRICT COURT'S EQUITABLE DISCRETION.  AN ORDER
FOR THE RECOVERY AND RESTITUTION OF ILLEGAL RENTS MAY BE CONSIDERED A
PROPER "OTHER ORDER" ON EITHER OF TWO THEORIES: 

(1)  IT MAY BE CONSIDERED AS AN EQUITABLE ADJUNCT TO AN INJUNCTION
DECREE.  NOTHING IS MORE CLEARLY A PART OF THE SUBJECT MATTER OF A SUIT
FOR AN INJUNCTION THAN THE RECOVERY OF THAT WHICH HAS BEEN ILLEGALLY
ACQUIRED AND WHICH HAS GIVEN RISE TO THE NECESSITY FOR INJUNCTIVE
RELIEF.  TO BE SURE, SUCH A RECOVERY COULD NOT BE OBTAINED THROUGH AN
INDEPENDENT SUIT IN EQUITY IF AN ADEQUATE LEGAL REMEDY WERE AVAILABLE. 
FN2  WHITE V. SPARKILL REALTY CORP., 280 U.S. 500; LACASSAGNE V.
CHAPUIS, 144 U.S. 119.  BUT WHERE, AS HERE, THE EQUITABLE JURISDICTION
OF THE COURT HAS PROPERLY BEEN INVOKED FOR INJUNCTIVE PURPOSES, THE
COURT HAS THE POWER TO DECIDE ALL RELEVANT MATTERS IN DISPUTE AND TO
AWARD COMPLETE RELIEF EVEN THOUGH THE DECREE INCLUDES THAT WHICH MIGHT
BE CONFERRED BY A COURT OF LAW.  ALEXANDER V. HILLMAN, 296 U.S. 222,
241-242. 

(2)  IT MAY BE CONSIDERED AS AN ORDER APPROPRIATE AND NECESSARY TO
ENFORCE COMPLIANCE WITH THE ACT.  SECTION 205(A) ANTICIPATES ORDERS OF
THAT CHARACTER, ALTHOUGH IT MAKES NO ATTEMPT TO CATALOGUE THE INFINITE
FORMS AND VARIATIONS WHICH SUCH ORDERS MIGHT TAKE.  THE PROBLEM OF
FORMULATING THESE ORDERS HAS BEEN LEFT TO THE JUDICIAL PROCESS OF
ADAPTING APPROPRIATE EQUITABLE REMEDIES TO SPECIFIC SITUATIONS.  CF.
PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194.  IN FRAMING SUCH
REMEDIES UNDER SEC. 205(A), COURTS MUST ACT PRIMARILY TO EFFECTUATE THE
POLICY OF THE EMERGENCY PRICE CONTROL ACT AND TO PROTECT THE PUBLIC
INTEREST WHILE GIVING NECESSARY RESPECT TO THE PRIVATE INTERESTS
INVOLVED.  THE INHERENT EQUITABLE JURISDICTION WHICH IS THUS CALLED
INTO PLAY CLEARLY AUTHORIZES A COURT, IN ITS DISCRETION, TO DECREE
RESTITUTION OF EXCESSIVE CHARGES IN ORDER TO GIVE EFFECT TO THE POLICY
OF CONGRESS.  CLARK V. SMITH, 13 PET. 195, 203.  AND IT IS NOT
UNREASONABLE FOR A COURT TO CONCLUDE THAT SUCH A RESTITUTION ORDER IS
APPROPRIATE AND NECESSARY TO ENFORCE COMPLIANCE WITH THE ACT AND TO
GIVE EFFECT TO ITS PURPOSES.  FUTURE COMPLIANCE MAY BE MORE DEFINITELY
ASSURED IF ONE IS COMPELLED TO RESTORE ONE'S ILLEGAL GAINS; AND THE
STATUTORY POLICY OF PREVENTING INFLATION IS PLAINLY ADVANCED IF PRICES
OR RENTS WHICH HAVE BEEN COLLECTED IN THE PAST ARE REDUCED TO THEIR
LEGAL MAXIMUMS. 

THE LEGISLATIVE BACKGROUND OF SEC. 205(A) CONFIRMS OUR CONCLUSION
THAT THE TRADITIONAL EQUITY POWERS OF A COURT REMAIN UNIMPAIRED IN A
PROCEEDING UNDER THAT SECTION SO THAT AN ORDER OF RESTITUTION MAY BE
MADE.  THE SENATE COMMITTEE ON BANKING AND CURRENCY, IN REPORTING UPON
THE BILL WHICH BECAME THE EMERGENCY PRICE CONTROL ACT, STATED IN REGARD
TO SEC. 205(A):  "IN COMMON WITH SUBSTANTIALLY ALL REGULATORY STATUTES,
THE BILL AUTHORIZES THE OFFICIAL CHARGED WITH THE DUTY OF ADMINISTERING
THE ACT TO APPLY TO ANY APPROPRIATE COURT, STATE OR FEDERAL, FOR AN
ORDER ENJOINING ANY PERSON WHO HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY
ACTS OR PRACTICES WHICH CONSTITUTE OR WILL CONSTITUTE A VIOLATION OF
ANY PROVISION OF THE BILL.  SUCH COURTS ARE GIVEN JURISDICTION TO ISSUE
WHATEVER ORDER TO ENFORCE COMPLIANCE IS PROPER IN THE CIRCUMSTANCES OF
EACH PARTICULAR CASE."  S. REP. NO. 931, 77TH CONG., 2D SESS., P. 10. 
FN3  THE LAST SENTENCE IS AN UNMISTAKABLE ACKNOWLEDGEMENT THAT COURTS
OF EQUITY ARE FREE TO ACT UNDER SEC. 205(A) IN SUCH A WAY AS TO BE MOST
RESPONSIVE TO THE STATUTORY POLICY OF PREVENTING INFLATION. 

IT IS TRUE THAT SEC. 205(E) AUTHORIZES AN AGGRIEVED PURCHASER OR
TENANT TO SUE FOR DAMAGES ON HIS OWN BEHALF; AND IF THAT PERSON HAS NOT
SUED WITHIN THE STATUTORY PERIOD, OR FOR ANY REASON IS NOT ENTITLED TO
SUE, THE ADMINISTRATOR MAY INSTITUTE AN ACTION FOR DAMAGES ON BEHALF OF
THE UNITED STATES.  FN4  TO THE EXTENT THAT DAMAGES MIGHT PROPERLY BE
AWARDED BY A COURT OF EQUITY IN THE EXERCISE OF ITS JURISDICTION UNDER
SEC. 205(A), SEE VEAZIE V. WILLIAMS, 8 HOW.  134, 160, SEC. 205(E)
SUPERSEDES THAT POSSIBILITY AND PROVIDES AN EXCLUSIVE REMEDY RELATIVE
TO DAMAGES.  IT ESTABLISHES THE SOLE MEANS WHEREBY INDIVIDUALS MAY
ASSERT THEIR PRIVATE RIGHT TO DAMAGES AND WHEREBY THE ADMINISTRATOR ON
BEHALF OF THE UNITED STATES MAY SEEK DAMAGES IN THE NATURE OF
PENALTIES.  FN5  MOREOVER, A COURT GIVING RELIEF UNDER SEC. 205(E) ACTS
AS A COURT OF LAW RATHER THAN AS A COURT OF EQUITY.  BUT WITH THE
EXCEPTION OF DAMAGES, SEC. 205(E) IN NO WAY CONFLICTS WITH THE
JURISDICTION OF EQUITY COURTS UNDER SEC. 205(A) TO ISSUE WHATEVER
"OTHER ORDER" MAY BE NECESSARY TO VINDICATE THE PUBLIC INTEREST, TO
COMPEL COMPLIANCE WITH THE ACT AND TO PREVENT AND UNDO INFLATIONARY
TENDENCIES. 

RESTITUTION, WHICH LIES WITHIN THAT EQUITABLE JURISDICTION, IS
CONSISTENT WITH AND DIFFERS GREATLY FROM THE DAMAGES AND PENALTIES
WHICH MAY BE AWARDED UNDER SEC. 205(E).  BOWLES V. SKAGGS, SUPRA, 821. 
WHEN THE ADMINISTRATOR SEEKS RESTITUTION UNDER SEC. 205(A), HE DOES NOT
REQUEST THE COURT TO AWARD STATUTORY DAMAGES TO THE PURCHASER OR TENANT
OR TO PAY TO SUCH PERSON PART OF THE PENALTIES WHICH GO TO THE UNITED
STATES TREASURY IN A SUIT BY THE ADMINISTRATOR UNDER SEC. 205(E). 
RATHER HE ASKS THE COURT TO ACT IN THE PUBLIC INTEREST BY RESTORING THE
STATUS QUO AND ORDERING THE RETURN OF THAT WHICH RIGHTFULLY BELONGS TO
THE PURCHASER OR TENANT.  SUCH ACTION IS WITHIN THE RECOGNIZED POWER
AND WITHIN THE HIGHEST TRADITION OF A COURT OF EQUITY.  THUS IT IS
PLAINLY UNAFFECTED BY THE PROVISIONS OF SEC. 205(E). 

NOR DO WE FIND ANY OTHER PROVISION OF THE ACT THAT EXPRESSLY OR
IMPLIEDLY PRECLUDES A COURT FROM ORDERING RESTITUTION IN THE EXERCISE
OF ITS EQUITY JURISDICTION UNDER SEC. 205(A).  THIS IS NOT A SITUATION
WHERE A STATUTE HAS CREATED A RIGHT AND HAS PROVIDED A SPECIAL AND
EXCLUSIVE REMEDY, THEREBY NEGATIVING ANY JURISDICTION THAT MIGHT
OTHERWISE BE ASSERTED.  UNITED STATES V. BABCOCK, 250 U.S. 328.  AND IT
CLEARLY IS NOT AN INSTANCE WHERE EQUITY JURISDICTION IS LACKING BECAUSE
OF A FAILURE TO EXHAUST PRESCRIBED ADMINISTRATIVE REMEDIES.  MYERS V.
BETHLEHEM CORP., 303 U.S. 41.  RATHER IT IS AN OCCASION WHERE CONGRESS
HAS UTILIZED, SAVE IN ONE ASPECT, THE BROAD EQUITABLE JURISDICTION THAT
INHERES IN COURTS AND WHERE THE PROPOSED EXERCISE OF THAT JURISDICTION
IS CONSISTENT WITH THE STATUTORY LANGUAGE AND POLICY, THE LEGISLATIVE
BACKGROUND AND THE PUBLIC INTEREST. 

IT FOLLOWS THAT THE DISTRICT COURT ERRED IN DECLINING, FOR
JURISDICTIONAL REASONS, TO CONSIDER WHETHER A RESTITUTION ORDER WAS
NECESSARY OR PROPER UNDER THE CIRCUMSTANCES HERE PRESENT.  THE CASE
MUST THEREFORE BE REMANDED TO THAT COURT SO THAT IT MAY EXERCISE THE
DISCRETION THAT BELONGS TO IT.  SHOULD THE COURT DECIDE TO ISSUE A
RESTITUTION ORDER AND SHOULD THERE APPEAR TO BE CONFLICTING CLAIMS AND
COUNTERCLAIMS BETWEEN TENANTS AND LANDLORD AS TO THE AMOUNTS DUE, THE
COURT HAS INHERENT POWER TO BRING IN ALL THE INTERESTED PARTIES AND
SETTLE THE CONTROVERSIES OR TO RETAIN THE CASE UNTIL THE MATTERS ARE
OTHERWISE LITIGATED.  MALLOW V. HINDE, 12 WHEAT.  193.  REVERSED. 
FN1  56 STAT. 23, 33; 50 U.S.C. APP. SEC. 925(A). 

FN2  BUT IF A DEFENDANT WITH NOTICE OF A PENDING INJUNCTION
PROCEEDING COMPLETES THE ACTS SOUGHT TO BE ENJOINED, THE COURT OF
EQUITY MAY RESTORE THE STATUS QUO BY MEANS OF A MANDATORY INJUNCTION. 
TEXAS & N.O.R. CO. V. NORTHSIDE BELT R. CO., 276 U.S. 475; PORTER V.
LEE, 328 U.S. 246.    FN3  THE SAME REPORT, AT P. 25, ALSO STATES:
"SECTION 205(A) AUTHORIZES THE ADMINISTRATOR TO ENFORCE COMPLIANCE WITH
THE PROVISIONS OF SECTION 4 OF THE BILL, WHENEVER IN HIS JUDGMENT, ANY
PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY ACTS OR PRACTICES WHICH
CONSTITUTE OR WILL CONSTITUTE A VIOLATION OF ANY PROVISION OF SECTION
4, BY MAKING APPLICATION TO THE APPROPRIATE COURT FOR AN ORDER
ENJOINING SUCH ACTS OR PRACTICES, OR FOR AN ORDER ENFORCING COMPLIANCE
WITH SUCH PROVISION.  UPON A SHOWING BY THE ADMINISTRATOR THAT SUCH
PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY SUCH ACTS OR PRACTICES,
A TEMPORARY OR PERMANENT INJUNCTION, RESTRAINING ORDER OR OTHER ORDER
IS TO BE GRANTED WITHOUT BOND." 

FN4  SEC. 205(E) AS AMENDED BY THE STABILIZATION EXTENSION ACT OF
1944, 58 STAT. 632, 640-641; 50 U.S.C. APP. SEC. 925(E). 

FN5  CONGRESS HAS RECOGNIZED THAT THIS PROVISION FOR DAMAGE ACTIONS
AFFORDS "A REMEDY AT LAW TO PERSONS DAMAGED BY HAVING HAD TO PAY
UNLAWFULLY HIGH PRICES."  S. REP. NO. 931, 77TH CONG., 2D SESS., P. 9. 
IT HAS ALSO BEEN STATED THAT "THIS ACTION IS THE PEOPLE'S REMEDY
AGAINST INFLATION.  IT WAS WRITTEN INTO THE STATUTE BECAUSE THE
CONGRESS RECOGNIZED THE PRACTICAL NEED OF THIS AID TO ENFORCEMENT."  S.
REP. NO. 922, 78TH CONG., 2D SESS., P. 14.  THE AMENDMENT TO SEC.
205(E), WHEREBY THE ADMINISTRATOR WAS ALLOWED TO SUE FOR DAMAGES UNDER
PRESCRIBED CONDITIONS, WAS SAID TO "CLOSE AN IMPORTANT GAP IN THE
PRESENT SYSTEM OF ENFORCEMENT SANCTIONS."  ID.  NOWHERE, HOWEVER, WAS
THERE ANY INDICATION THAT SEC. 205(E) WAS INTENDED TO WHITTLE DOWN THE
EQUITABLE JURISDICTION RECOGNIZED BY SEC. 205(A) SO AS TO PRECLUDE A
SUIT FOR RESTITUTION. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

IN THE EMERGENCY PRICE CONTROL LEGISLATION CONGRESS WAS AS MUCH
CONCERNED WITH REMEDIES AS WITH SUBSTANTIVE PROHIBITIONS.  FN1  IT KNEW
THAT EFFECTIVENESS OF THE LATTER DEPENDED ALTOGETHER UPON THE SCHEME
FOR ENFORCEMENT.  ACCORDINGLY, BOTH IN THE ORIGINAL ACT  FN2  AND IN
LATER AMENDMENTS, FN3  IT COVERED THE MATTER OF REMEDIES IN THE
GREATEST DETAIL AND PRECISION.  THOSE PROVISIONS WERE BOTH
JURISDICTIONAL AND PROCEDURAL.  THE GENERAL SCHEME WAS TO CONFINE AS
NARROWLY AS THE CONSTITUTION ALLOWS THE RIGHTS OF REGULATED PERSONS TO
CHALLENGE PROVISIONS OF THE ACT AND REGULATIONS; AND AT THE SAME TIME
TO CREATE BROAD POWERS FOR ENFORCEMENT, BY VARIOUS CIVIL AND CRIMINAL
SANCTIONS.  YAKUS V. UNITED STATES, 321 U.S. 414, DISSENTING OPINION,
463.  CONGRESS DID NOT TAKE CHANCES, IN EITHER RESPECT, WITH INFERENCE
OR CONSTRUCTION.  IT IS NOT EXCESSIVE TO SAY THAT PERHAPS NO OTHER
LEGISLATION IN OUR HISTORY HAS EQUALLED THE PRICE CONTROL ACT IN THE
WEALTH, DETAIL, PRECISION AND COMPLETENESS OF ITS JURISDICTIONAL,
PROCEDURAL AND REMEDIAL PROVISIONS.  YAKUS V. UNITED STATES, SUPRA. 

THE SCHEME OF ENFORCEMENT WAS HIGHLY INTEGRATED, WITH THE PARTS
PRECISELY TOOLED AND MINUTELY GEARED.  LEGAL, EQUITABLE AND CRIMINAL
SANCTIONS WERE INCLUDED.  INJURED PERSONS' REMEDIES WERE DOVETAILED
WITH AND GUARDED AGAINST OVERLAPPING THOSE GIVEN THE ADMINISTRATOR.  HE
CAN SUE FOR DAMAGES AND PENALTIES, AFTER THE INJURED PARTY HAS FAILED
TO DO SO IN THE TIME ALLOWED; FN4  TO ENJOIN VIOLATION OR SECURE AN
ORDER FOR COMPLIANCE, WITH TEMPORARY AND PERMANENT RELIEF; FN5 CAUSE
INSTITUTION OF CRIMINAL PROCEEDINGS N6; AND REQUIRE LICENSING OF
DEALERS WITH POWER TO SUSPEND THE LICENSE AND THUS DRIVE OUT OF
BUSINESS.  FN7  THIS POWERFUL BATTERY OF WEAPONS DOES NOT CALL FOR
REINFORCEMENT WITH ARMOR NOT PROVIDED IN THE ACT.  IT WAS EQUAL TO ALL
TASKS OF ENFORCEMENT WHICH CONCEIVABLY COULD ARISE. 

CONGRESS COULD NOT HAVE BEEN IGNORANT OF THE REMEDY OF RESTITUTION. 
IT KNEW HOW TO GIVE REMEDIES IT WISHED TO CONFER.  THERE WAS NO NEED TO
ADD THIS ONE.  NOR DO I THINK IT DID SO.  IT DID NOT GIVE IT
EXPRESSLY.  I DO NOT THINK "OTHER ORDER" IN THE CONTEXT OF SEC. 205(A)
INCLUDES IT.  FOR TO HAVE CONFERRED IT WOULD HAVE PUT THE STATUTORY
SECHEME OUT OF JOINT. 

WITH PENALTY, FOR A LIMITED TIME.  THEREAFTER THE EXCLUSIVE RIGHT TO
SUE IS THE ADMINISTRATOR'S, AND WHAT HE RECOVERS GOES INTO THE FEDERAL
TREASURY, NOT TO THE OVERCHARGED PERSON.  THIS INCLUDES THE AMOUNT OF
THE OVERCHARGE, WHICH IS SUED FOR HERE.  THESE PROVISIONS TAKEN
TOGETHER ARE A STATUTE OF LIMITATIONS ON THE PRIVATE RIGHT OF
RECOVERY.  ONCE THE TIME GOES BY, IT IS CUT OFF AND THE GOVERNMENT'S
RIGHT TAKES ITS PLACE, IN VINDICATION OF THE PUBLIC INTEREST.  FN8 

RESTITUTION, AS HERE SOUGHT, IS INCONSISTENT WITH BOTH RIGHTS.  IT
CONTEMPLATES RETURN OF THE UNJUSTLY TAKEN ENRICHMENT TO HIM FROM WHOM
IT WAS TAKEN.  IT IS THAT RIGHT THE ADMINISTRATOR NOW SEEKS TO ASSERT. 
BUT HE DOES SO, I THINK, IN THE TEETH OF THE STATUTE.  WHAT HE RECOVERS
IS WHAT THE ACT MAKES PART OF A SUM IT SAYS SHALL BE PAID INTO THE
TREASURY WHENEVER RECOVERED BY THE ADMINISTRATOR; OR INTO THE
OVERCHARGED PERSON'S POCKET WHEN RECOVERED BY HIM.  AND THESE ARE
MUTUALLY EXCLUSIVE, NOT ALTERNATIVE, RIGHTS OF RECOVERY.  IF THE
ADMINISTRATOR PAYS OVER TO THE TENANTS WHAT HE RECOVERS IN THIS SUIT,
HE WILL BE PAYING THEM MONEY WHICH THE ACT SAYS SHALL GO INTO THE
TREASURY N9.  THEIR TIME FOR SUIT HAS PASSED AND WITH IT THEIR RIGHT TO
RECOVER THESE AMOUNTS.  WHETHER OR NOT THE ADMINISTRATOR CAN SUE FOR
THESE AMOUNTS, ON BEHALF OF THE GOVERNMENT, FOREGOING THE PENALTIES, WE
ARE NOT ASKED TO DECIDE.  BUT WE ARE ASKED, IN EFFECT, TO DECIDE THAT
HE CAN TAKE MONEY THE ACT SAYS SHALL GO INTO THE TREASURY AND GIVE IT
TO PERSONS WHOSE RIGHT TO RECOVER IT THE ACT HAS CUT OFF. 

I THINK THE REMEDY NOW SOUGHT IS INCONSISTENT WITH THE REMEDIES
EXPRESSLY GIVEN BY THE STATUTE AND CONTRARY TO THE SUBSTANTIVE RIGHTS
IT CREATES.  I THINK TOO THIS IS WHY CONGRESS FAILED TO PROVIDE FOR
RESTITUTION, INDEED CUT OFF THAT REMEDY. 

THIS DOES NOT IMPLY ANY RESTRICTION UPON THE CREATIVE RESOURCES OF A
COURT OF EQUITY.  WHEN CONGRESS IS SILENT IN FORMULATING REMEDIES FOR
RIGHTS WHICH IT HAS CREATED, COURTS OF EQUITY ARE FREE TO USE THESE
CREATIVE RESOURCES.  BUT WHERE CONGRESS IS EXPLICIT IN THE REMEDIES IT
AFFORDS, AND ESPECIALLY WHERE CONGRESS AFTER IT HAS GIVEN LIMITED
REMEDIES ENLARGES THE SCOPE OF SUCH REMEDIES BUT PARTICULARIZES THEM SO
FAR AS REMEDIES FOR OVERCHARGES ARE AFFORDED, EVEN COURTS OF EQUITY MAY
NOT GRANT RELIEF IN DISREGARD OF THE REMEDIES SPECIFICALLY DEFINED BY
CONGRESS. 

FN1  SEE H. REP. NO. 1409, 77TH CONG., 1ST SESS., 12-13; S. REP. NO.
931, 77TH CONG., 2D SESS., 8-9, 25-28; H. REP. NO. 1658, 77TH CONG., 2D
SESS., 26-27.  "PRICE CONTROL WHICH CANNOT BE MADE EFFECTIVE IS AT
LEAST AS BAD AS NO PRICE CONTROL AT ALL.  IT WILL NOT STOP INFLATION,
AND ENABLES THOSE WHO DEFY REGULATION TO PROFIT AT THE EXPENSE OF THE
BUYERS AND SELLERS WHO UNSELFISHLY COOPERATE IN THE INTERESTS OF THE
EMERGENCY."  S. REP. NO. 931, SUPRA, P. 8. 

FN2  SEC. 205, 56 STAT. 23, 33-35. 

FN3  58 STAT. 632, 640-641, AMENDING SUBSECTIONS (C), (E), AND (F) OF
SEC. 205 AS IT WAS IN THE ORIGINAL ACT AND ADDING SUBSECTION (G). 

FN4  SEC. 205(E), 50 U.S.C. SEC. 925(E).  SEE NOTE 9. 

FN5  SEC. 205(A):  "WHENEVER IN THE JUDGMENT OF THE ADMINISTRATOR ANY
PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY ACTS OR PRACTICES WHICH
CONSTITUTE OR WILL CONSTITUTE A VIOLATION OF ANY PROVISION OF SECTION 4
OF THIS ACT, HE MAY MAKE APPLICATION TO THE APPROPRIATE COURT FOR AN
ORDER ENJOINING SUCH ACTS OR PRACTICES, OR FOR AN ORDER ENFORCING
COMPLIANCE WITH SUCH PROVISION, AND UPON A SHOWING BY THE ADMINISTRATOR
THAT SUCH PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY SUCH ACTS OR
PRACTICES A PERMANENT OR TEMPORARY INJUNCTION, RESTRAINING ORDER, OR
OTHER ORDER SHALL BE GRANTED WITHOUT BOND."  50 U.S.C. SEC. 925(A). 

FN6  SEC. 205(B):  "ANY PERSON WHO WILLFULLY VIOLATES ANY PROVISION
OF SECTION 4 OF THIS ACT, AND ANY PERSON WHO MAKES ANY STATEMENT OR
ENTRY FALSE IN ANY MATERIAL RESPECT IN ANY DOCUMENT OR REPORT REQUIRED
TO BE KEPT OR FILED UNDER SECTION 2 OR SECTION 202, SHALL, UPON
CONVICTION THEREOF, BE SUBJECT TO A FINE OF NOT MORE THAN $5,000, OR TO
IMPRISONMENT FOR NOT MORE THAN TWO YEARS IN THE CASE OF A VIOLATION OF
BOTH SUCH FINE AND IMPRISONMENT.  WHENEVER THE ADMINISTRATOR HAS REASON
TO BELIEVE THAT ANY PERSON IS LIABLE TO PUNISHMENT UNDER THIS
SUBSECTION, HE MAY CERTIFY THE FACTS TO THE ATTORNEY GENERAL, WHO MAY,
IN HIS DISCRETION, CAUSE APPROPRIATE PROCEEDINGS TO BE BROUGHT."  50
U.S.C. SEC. 925(B).  SEC. 205(C), 50 U.S.C. SEC. 925(C).  SEE KRAUS &
BROS. V. UNITED STATES, 327 U.S. 614, 620, NOTE 4. 

FN7  SEC. 205(F), 50 U.S.C. SEC. 925(F). 

FN8  UNDER SEC. 205(E) IN THE ORIGINAL ACT, 56 STAT. 34, THE
ADMINISTRATOR WAS ENTITLED TO BRING A SUIT FOR DAMAGES AND PENALTIES
ONLY WHEN THE BUYER WAS NOT ENTITLED TO BRING SUCH AN ACTION.  SEE,
E.G., BOWLES V. GLICK BROS. LUMBER CO., 146 F.2D 566.  THE ACT WAS
SUBSEQUENTLY AMENDED TO PROVIDE, AS SET OUT IN THE TEXT, THAT THE
ADMINISTRATOR COULD BRING A SUIT FOR DAMAGES AND PENALTIES ALSO WHEN
THE INJURED PARTY HAD NOT BROUGHT SUCH AN ACTION WITHIN THIRTY DAYS
FROM THE DATE OF THE OCCURRENCE OF THE VIOLATION.  58 STAT. 640.  SEE
NOTE 9.  THE SUIT AT BAR WAS BROUGHT BEFORE THE PASSAGE OF THE
AMENDMENT, BUT THAT FACT IS OF NO SIGNIFICANCE, SINCE SEC. 205(E),
WHETHER TAKEN IN ITS ORIGINAL OR AMENDED FORM, IS INCONSISTENT WITH THE
REMEDY OF RESTITUTION SOUGHT BY THE GOVERNMENT. 

FN9  SEC. 205(E):  "IF ANY PERSON SELLING A COMMODITY VIOLATES A
REGULATION, ORDER, OR PRICE SCHEDULE PRESCRIBING A MAXIMUM PRICE OR
MAXIMUM PRICES, THE PERSON WHO BUYS SUCH COMMODITY FOR USE OR
CONSUMPTION OTHER THAN IN THE COURSE OF TRADE OR BUSINESS MAY, WITHIN
ONE YEAR FROM THE DATE OF THE OCCURRENCE OF THE VIOLATION, EXCEPT AS
HEREINAFTER PROVIDED, BRING AN ACTION AGAINST THE SELLER ON ACCOUNT OF
THE OVERCHARGE.  IN SUCH ACTION, THE SELLER SHALL BE LIABLE FOR
REASONABLE ATTORNEY'S FEES AND COSTS AS DETERMINED BY THE COURT, PLUS
WHICHEVER OF THE FOLLOWING SUMS IS THE GREATER:  (1) SUCH AMOUNT NOT
MORE THAN THREE TIMES THE AMOUNT OF THE OVERCHARGE, OR THE OVERCHARGES,
UPON WHICH THE ACTION IS BASED AS THE COURT IN ITS DISCRETION MAY
DETERMINE, OR (2) AN AMOUNT NOT LESS THAN $25 NOR MORE THAN $50, AS THE
COURT IN ITS DISCRETION MAY DETERMINE: PROVIDED, HOWEVER, THAT SUCH
AMOUNT SHALL BE THE AMOUNT OF THE OVERCHARGE OR OVERCHARGES OR $25,
WHICHEVER IS GREATER, IF THE DEFENDANT PROVES THAT THE VIOLATION OF THE
REGULATION, ORDER, OR PRICE SCHEDULE IN QUESTION WAS NEITHER WILFULL
NOR THE RESULT OF FAILURE TO TAKE PRACTICABLE PRECAUTIONS AGAINST THE
OCCURRENCE OF THE VIOLATION.  FOR THE PURPOSES OF THIS SECTION THE
PAYMENT OR RECEIPT OF RENT FOR DEFENSE-AREA HOUSING ACCOMMODATIONS
SHALL BE DEEMED THE BUYING OR SELLING OF A COMMODITY, AS THE CASE MAY
BE; AND THE WORD 'OVERCHARGE' SHALL MEAN THE AMOUNT BY WHICH THE
CONSIDERATION EXCEEDS THE APPLICABLE MAXIMUM PRICE.  IF ANY PERSON
SELLING A COMMODITY VIOLATES A REGULATION, ORDER, OR PRICE SCHEDULE
PRESCRIBING A MAXIMUM PRICE OR MAXIMUM PRICES, AND THE BUYER EITHER
FAILS TO INSTITUTE AN ACTION UNDER THIS SUBSECTION WITHIN THIRTY DAYS
FROM THE DATE OF THE OCCURRENCE OF THE VIOLATION OR IS NOT ENTITLED FOR
ANY REASON TO BRING THE ACTION, THE ADMINISTRATOR MAY INSTITUTE SUCH
ACTION ON BEHALF OF THE UNITED STATES WITHIN SUCH ONE-YEAR PERIOD.  IF
SUCH ACTION IS INSTITUTED BY THE ADMINISTRATOR, THE BUYER SHALL
THEREAFTER BE BARRED FROM BRINGING AN ACTION FOR THE SAME VIOLATION OR
VIOLATIONS.  ANY ACTION UNDER THIS SUBSECTION BY EITHER THE BUYER OR
THE ADMINISTRATOR, AS THE CASE MAY BE, MAY BE BROUGHT IN ANY COURT OF
COMPETENT JURISDICTION.  A JUDGMENT IN AN ACTION FOR DAMAGES UNDER THIS
SUBSECTION SHALL BE A BAR TO THE RECOVERY UNDER THIS SUBSECTION OF ANY
DAMAGES IN ANY OTHER ACTION AGAINST THE SAME SELLER ON ACCOUNT OF SALES
MADE TO THE SAME PURCHASER PRIOR TO THE INSTITUTION OF THE ACTION IN
WHICH SUCH JUDGMENT WAS RENDERED."  50 U.S.C. SEC. 925(E). 

MR. JUSTICE REED AND MR. JUSTICE FRANKFURTER JOIN IN THIS OPINION. 
..END :





PRUDENTIAL INS. CO. V. BENJAMIN, 328 U.S. 408 


NO. 707.  ARGUED MARCH 8, 11, 1946.  - DECIDED JUNE 3, 1946.  - 207 S.C.
324, 35 S.E.2D 586, AFFIRMED. 


1.  A STATUTE OF SOUTH CAROLINA IMPOSED ON FOREIGN INSURANCE COMPANIES
AS A CONDITION ON THEIR DOING BUSINESS WITHIN THE STATE AN ANNUAL TAX
OF THREE PERCENT OF PREMIUMS FROM BUSINESS DONE WITHIN THE STATE,
WITHOUT REFERENCE TO THE CHARACTER OF THE TRANSACTIONS AS INTERSTATE OR
LOCAL.  NO SIMILAR TAX WAS IMPOSED ON SOUTH CAROLINA CORPORATIONS. 
HELD, IN VIEW OF THE PROVISIONS OF THE ACT OF CONGRESS OF MARCH 9,
1945, 59 STAT. 33, AUTHORIZING STATE REGULATION AND TAXATION OF THE
BUSINESS OF INSURANCE, THAT THE TAX WAS NOT IN VIOLATION OF THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION, NOTWITHSTANDING THIS
COURT'S RULING IN UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN.,
322 U.S. 533(1944).  PP. 410-411, 422. 

2.  A STATE TAX OR REGULATION DISCRIMINATING AGAINST INTERSTATE
COMMERCE, WHICH WOULD BE INVALID UNDER THE COMMERCE CLAUSE IN ABSENCE
OF ACTION BY CONGRESS, MAY BE VALIDATED BY THE AFFIRMATIVE ACTION OF
CONGRESS CONSENTING THERETO.  PP. 421-427. 

3.  THE COMMERCE CLAUSE IS NOT A LIMITATION UPON THE POWER OF
CONGRESS OVER INTERSTATE AND FOREIGN COMMERCE BUT A GRANT TO CONGRESS
OF PLENARY AND SUPREME AUTHORITY OVER THOSE SUBJECTS.  P. 423. 

4.  THE STATE TAX HERE INVOLVED IS CLEARLY SUSTAINED BY THE ACT OF
MARCH 9, 1945, THE PURPOSE OF WHICH WAS BROADLY TO GIVE SUPPORT TO THE
EXISTING AND FUTURE STATE SYSTEMS FOR REGULATING AND TAXING THE
BUSINESS OF INSURANCE.  PP. 427-433. 

5.  THE POWER OF CONGRESS OVER COMMERCE IS NOT RESTRICTED, EXCEPT AS
THE CONSTITUTION EXPRESSLY PROVIDES, BY ANY LIMITATION WHICH FORBIDS IT
TO DISCRIMINATE AGAINST INTERSTATE COMMERCE AND IN FAVOR OF LOCAL
TRADE.  P. 434. 

6.  IF AUTHORITY OVER INTERSTATE COMMERCE IS EXERCISED BY CONGRESS IN
CONJUNCTION WITH THE STATES, THEIR JOINT ACTION IS LIMITED ONLY BY
THOSE PROVISIONS IN THE CONSTITUTION WHICH FORBID ACTION ALTOGETHER BY
ANY POWER OR COMBINATION OF POWERS IN OUR GOVERNMENTAL SYSTEM.  P.
434. 

7.  IN VALIDATING THE STATE TAX HERE INVOLVED, THE ACT OF MARCH 9,
1945, IS NOT IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT; NOR OF THE FIRST CLAUSE OF ART. I, SEC. 8, REQUIRING THAT
"ALL DUTIES, IMPOSTS AND EXCISES SHALL BE UNIFORM THROUGHOUT THE UNITED
STATES"; NOR OF ART. I, SEC. 1, CONFERRING THE LEGISLATIVE POWER ON
CONGRESS; NOR OF THE TENTH AMENDMENT.  PP. 437-439. 

8.  AS HERE CONSTRUED, THE ACT OF MARCH 9, 1945, DOES NOT INVOLVE AN
UNCONSTITUTIONAL DELEGATION BY CONGRESS OF ITS POWER TO THE STATES.  P.
439. 

PRUDENTIAL INSURANCE CO. V. BENJAMIN, INSURANCE COMMISSIONER. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

BY AN ORIGINAL PROCEEDING IN THE SUPREME COURT OF SOUTH CAROLINA,
APPELLANT CHALLENGED THE VALIDITY UNDER THE FEDERAL CONSTITUTION OF A
STATE STATUTE WHICH IMPOSED A TAX UPON FOREIGN INSURANCE COMPANIES. 
THE STATE COURT UPHELD THE TAX, 207 S.C. 324, 35 S.E.2D 586, AND AN
APPEAL WAS TAKEN TO THIS COURT.  AFFIRMED, P. 440. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE AND ROBERTSON V. CALIFORNIA, POST, P. 440, BRING NOT
UNEXPECTED SEQUELS TO UNITED STATES V. SOUTH-EASTERN UNDERWRITERS
ASSN., 322 U.S. 533.  IN CYCLE REMINISCENT CONVERSELY OF VIEWS ADVANCED
THERE AND IN PAUL V. VIRGINIA, 8 WALL.  168, CLAIMS ARE PUT FORWARD ON
THE BASIS OF THE SOUTH-EASTERN DECISION TO SUSTAIN IMMUNITY FROM STATE
TAXATION AND, IN THE ROBERTSON CASE, FROM STATE REGULATION OF THE
BUSINESS OF INSURANCE. 

THE SPECIFIC EFFECT ASSERTED IN THIS CASE IS THAT SOUTH CAROLINA NO
LONGER CAN COLLECT TAXES FROM PRUDENTIAL, A NEW JERSEY CORPORATION,
WHICH FOR YEARS PRIOR TO 1945 THE STATE HAD LEVIED AND THE COMPANY HAD
PAID.  THE TAX IS LAID ON FOREIGN INSURANCE COMPANIES AND MUST BE PAID
ANNUALLY AS A CONDITION OF RECEIVING A CERTIFICATE OF AUTHORITY TO
CARRY ON THE BUSINESS OF INSURANCE WITHIN THE STATE.  THE EXACTION
AMOUNTS TO THREE PER CENT OF THE AGGREGATE OF PREMIUMS RECEIVED FROM
BUSINESS DONE IN SOUTH CAROLINA, WITHOUT REFERENCE TO ITS INTERSTATE OR
LOCAL CHARACTER.  FN1  NO SIMILAR TAX IS REQUIRED OF SOUTH CAROLINA
CORPORATIONS.  FN2 

PRUDENTIAL INSISTS THAT THE TAX DISCRIMINATES AGAINST INTERSTATE
COMMERCE AND IN FAVOR OF LOCAL BUSINESS, SINCE IT IS LAID ONLY ON
FOREIGN CORPORATIONS AND IS MEASURED BY THEIR GROSS RECEIPTS FROM
PREMIUMS DERIVED FROM BUSINESS DONE IN THE STATE, REGARDLESS OF ITS
INTERSTATE OR LOCAL CHARACTER.  ACCORDINGLY IT SAYS THE TAX CANNOT
STAND CONSISTENTLY WITH MANY DECISIONS OF THIS COURT OUTLAWING STATE
TAXES WHICH DISCRIMINATE AGAINST INTERSTATE COMMERCE.  FN3  SOUTH
CAROLINA DENIES THAT THE TAX IS DISCRIMINATORY  FN4  OR HAS BEEN
AFFECTED BY THE SOUTH-EASTERN DECISION.  BUT IN ANY EVENT IT MAINTAINS
THAT THE TAX IS VALID, MORE PARTICULARLY IN VIEW OF THE MCCARRAN ACT,
FN5  BY WHICH IT IS CLAIMED CONGRESS HAS CONSENTED TO CONTINUANCE OF
THIS FORM OF TAXATION AND THUS HAS REMOVED ANY POSSIBLE CONSTITUTIONAL
OBJECTION WHICH OTHERWISE MIGHT EXIST.  THIS PRUDENTIAL ASSERTS
CONGRESS HAS NOT DONE AND COULD NOT DO. 

THE STATE SUPREME COURT HAS HELD THE CONTINUED EXACTION OF THE TAX
NOT TO BE IN VIOLATION OF THE COMMERCE CLAUSE OR AFFECTED BY THE RULING
MADE IN THE SOUTH-EASTERN CASE.  207 S.C. 324, 35 S.E.2D 586.  THAT
HOLDING PRESENTS THE PRINCIPAL BASIS FOR THIS APPEAL. 

                                  I. 

THE VERSATILITY WITH WHICH ARGUMENT INVERTS STATE AND NATIONAL POWER,
EACH IN ALTERNATION TO WARD OFF THE OTHER'S INCIDENCE,  FN6  IS NOT
SIMPLY A PRODUCT OF PROTECTIVE SELF-INTEREST.  IT IS A RECURRING
MANIFESTATION OF THE CONTINUING NECESSITY IN OUR FEDERAL SYSTEM FOR
ACCOMMODATING THE TWO GREAT BASIC POWERS IT COMPREHENDS.  FOR THIS
COURT'S PART, FROM GIBBONS V. OGDEN, 9 WHEAT.  1, NO PHASE OF THAT
PROCESS HAS BEEN MORE CONTINUOUS OR AT TIMES PERPLEXING THAN
RECONCILING THE PARAMOUNT NATIONAL AUTHORITY OVER COMMERCE, CREATED BY
ARTICLE I, SEC. 8 OF THE CONSTITUTION, WITH APPROPRIATE EXERCISE OF THE
STATES' RESERVED POWERS TOUCHING THE SAME OR RELATED SUBJECT MATTER. 
FN7 

THE CONTINUING ADJUSTMENT HAS FILLED MANY OF THE GREAT CONSTITUTIONAL
GAPS OF MARSHALL'S TIME AND LATER.  FN8  BUT NOT ALL OF THE FILLING HAS
BEEN LASTING.  GREAT EMPHASES OF NATIONAL POLICY SWINGING BETWEEN
NATION AND STATES IN HISTORIC CONFLICTS HAVE BEEN REFLECTED, VARIOUSLY
AND FROM TIME TO TIME, IN PREMISE AND THEREFORE IN CONCLUSION OF
PARTICULAR DISPOSITIONS.  FN9  IN TURN, THEIR SUM HAS SHIFTED AND
RESHIFTED THE GENERAL BALANCE OF AUTHORITY, INEVITABLY PRODUCING SOME
ANOMALY OF LOGIC AND OF RESULT IN THE DECISIONS. 

NO PHASE HAS HAD A MORE ATYPICAL HISTORY THAN REGULATION OF THE
BUSINESS OF INSURANCE.  THIS FACT IS IMPORTANT FOR THE PROBLEMS NOW
PRESENTED.  THEY HAVE ORIGIN IN THAT HISTORY.  THEIR SOLUTION CANNOT
ESCAPE ITS INFLUENCE.  MOREOVER, IN LAW AS IN OTHER PHASES OF LIVING,
RECONCILIATION OF ANOMALOUS BEHAVIOR, LONG CONTINUED, WITH MORE NORMAL
ATTITUDES IS NOT ALWAYS EASY, WHEN THE TIME FOR THAT ADJUSTMENT COMES. 

ESSENTIALLY THE PROBLEMS THESE CASES TENDER ARE OF THAT CHARACTER. 
IT IS NOT NECESSARY TO RENEW THE CONTROVERSY PRESENTED IN SOUTH
EASTERN.  WHETHER OR NOT THAT DECISION PROPERLY HAS BEEN CHARACTERIZED
AS "PRECEDENT-SMASHING," N10 THERE WAS A REORIENTATION OF ATTITUDES
TOWARD FEDERAL POWER IN ITS RELATION TO THE BUSINESS OF INSURANCE
CONDUCTED ACROSS STATE LINES.  NECESSARILY THIS WORKED IN TWO
DIRECTIONS.  AS THE OPINION WAS AT PAINS TO NOTE, 322 U.S. 533, 545
FF., NO DECISION PREVIOUSLY HAD HELD INVALID AN ACT OF CONGRESS ON THE
GROUND THAT SUCH BUSINESS WAS BEYOND REACH OF ITS POWER, BECAUSE
PREVIOUSLY NO ATTEMPTED EXERCISE OF THAT AUTHORITY HAD BEEN BROUGHT
HERE IN LITIGATION.  BUT FROM PAUL V. VIRGINIA TO NEW YORK LIFE INS.
CO. V. DEER LODGE COUNTY, 231 U.S. 495, NEGATIVE IMPLICATION FROM THE
COMMERCE CLAUSE WAS HELD NOT TO PLACE ANY LIMITATION UPON STATE POWER
OVER THE BUSINESS, HOWEVER CONDUCTED WITH REFERENCE TO STATE LINES. 
AND CORRELATIVELY THIS WAS TAKEN WIDELY, ALTHOUGH NOT UNIVERSALLY, TO
NULLIFY FEDERAL AUTHORITY UNTIL THE QUESTION WAS SQUARELY PRESENTED AND
ANSWERED OTHERWISE IN THE SOUTH-EASTERN CASE. 

WHETHER PAUL V. VIRGINIA REPRESENTED IN ITS DAY AN ACCOMMODATION WITH
OR A DEPARTURE FROM THE PREEXISTING EVOLUTION OF COMMERCE CLAUSE LAW
AND WHETHER ITS RULING, TOGETHER WITH LATER ONES ADHERING TO IT,
REMAINED CONSONANT WITH THE SUBSEQUENT GENERAL DEVELOPMENT OF THAT LAW,
MAY STILL BE DEBATED.  BUT ALL MAY CONCEDE THAT THE PAUL CASE CREATED
FOR THE BUSINESS OF INSURANCE A SPECIAL, IF NOT A WHOLLY UNIQUE, WAY OF
THINKING AND ACTING IN THE REGULATION OF BUSINESS DONE ACROSS STATE
LINES.  SEE RIBBLE, STATE AND NATIONAL POWER OVER COMMERCE (1937) 89,
186-187.  THE AEGIS OF FEDERAL COMMERCE POWER CONTINUED TO SPREAD OVER
AND ENFOLD OTHER BUSINESS SO CONDUCTED, IN BOTH GENERAL AND SPECIFIC
LEGISLATIVE EXERTIONS.  USUALLY THIS WAS WITH JUDICIAL APPROVAL; AND,
DESPITE NOTABLE INSTANCES OF INITIAL HOSTILITY, THE HISTORY OF JUDICIAL
LIMITATION OF CONGRESSIONAL POWER OVER COMMERCE, WHEN EXERCISED
AFFIRMATIVELY, HAS BEEN MORE LARGELY ONE OF RETREAT THAN OF ULTIMATE
VICTORY.  FN11  THE PLAIN WORDS OF THE GRANT HAVE MADE COURTS CAUTIOUS,
EXCEPT POSSIBLY IN SOME OF THE INSTANCES NOTED, ABOUT NULLIFYING
POSITIVE EXERTIONS OF CONGRESS' POWER OVER THIS BROAD AND HARD TO
DEFINE FIELD.  AT THE SAME TIME, PHYSICAL AND ECONOMIC CHANGE IN THE
WAY COMMERCE IS CARRIED ON HAS CALLED FORTH A CONSTANTLY INCREASING
VOLUME OF LEGISLATION EXERCISING THAT POWER.  FN12 

CONCURRENTLY WITH THIS GENERAL EXPANSION, HOWEVER, FROM PAUL TO SOUTH
EASTERN THE STATES TOOK OVER EXCLUSIVELY THE FUNCTION OF REGULATING THE
INSURANCE BUSINESS IN ITS SPECIFIC LEGISLATIVE MANIFESTATIONS. 
CONGRESS LEGISLATED ONLY IN TERMS APPLICABLE TO COMMERCE GENERALLY,
WITHOUT PARTICULARIZED REFERENCE TO INSURANCE.  AT THE SAME TIME, ON
THE RATIONALIZATION THAT INSURANCE WAS NOT COMMERCE, YET WAS BUSINESS
AFFECTED WITH A VAST PUBLIC INTEREST,  FN13  THE STATES DEVELOPED
COMPREHENSIVE REGULATORY AND TAXING SYSTEMS.  AND LITIGATION OF THEIR
VALIDITY CAME TO BE FREED OF COMMERCE CLAUSE OBJECTIONS, AT ANY RATE
FROM DEER LODGE ON TO SOUTH-EASTERN.  DUE PROCESS IN ITS JURISDICTIONAL
ASPECTS REMAINED TO CONFINE THE REACH OF STATE POWER IN RELATION TO
BUSINESS AFFECTING OTHER STATES.  FN14  BUT THE NEGATIVE IMPLICATIONS
OF THE COMMERCE CLAUSE BECAME IRRELEVANT, AS SUCH, FOR THE VALID
EXERCISE OF STATE REGULATORY AND TAXING AUTHORITY. 

MEANWHILE THE BUSINESS OF INSURANCE EXPERIENCED A NATION-WIDE
EXPANSION GRAPHICALLY DEPICTED NOT ONLY IN THE FACTS OF THE SITUATION
PRESENTED IN THE SOUTH-EASTERN CASE BUT ALSO IN THE OPERATIONS OF
PRUDENTIAL AS DESCRIBED BY ITS ADVOCATES IN THIS CAUSE.  FN15  THESE
DIVERGENT FACTS, LEGAL AND ECONOMIC, NECESSARILY WERE REFLECTED IN
STATE LEGISLATION.  STATES GRAPPLING WITH NATION-WIDE, BUT NATIONALLY
UNREGULATED, BUSINESS INEVITABLY EXERTED THEIR POWERS TO LIMITS AND IN
WAYS NOT SOUGHT GENERALLY TO BE APPLIED TO OTHER BUSINESS HELD TO BE
WITHIN THE REACH OF THE COMMERCE CLAUSE'S IMPLIED PROHIBITION.  OBVIOUS
AND WIDESPREAD EXAMPLES ARE FURNISHED IN BROAD AND DETAILED LICENSING
PROVISIONS, FOR THE DOING OF BUSINESS WITHIN THE STATES, AND IN
CONNECTED OR DISTINCT TAXING MEASURES DRAWN IN APPARENT RELIANCE UPON
FREEDOM FROM COMMERCE CLAUSE LIMITATIONS.  FN16 

NOW WE ARE TOLD MANY OF THESE STATUTES NO LONGER CAN STAND.  THE
PROCESS OF READJUSTMENT BEGAN AFFIRMATIVELY WITH SOUTH-EASTERN.  SINCE
THE COMMERCE CLAUSE IS A TWOEDGED INSTRUMENT, THE INDICATED NEXT STEP,
INDEED THE CONSTITUTIONALLY REQUIRED ONE, AS THE ARGUMENT RUNS, IS TO
APPLY ITS NEGATIVELY CUTTING EDGE.  CONCEPTIONS SO DEVELOPED WITH
REFERENCE TO OTHER COMMERCE MUST NOW BE EXTENDED TO THE COMMERCE OF
INSURANCE IN COMPLETION OF THE READJUSTMENT.  THIS, IT IS CONFIDENTLY
ASSERTED, WILL REQUIRE STRIKING DOWN MUCH OF THE STATE LEGISLATION
ENACTED AND EFFECTIVE PRIOR TO THE SOUTH-EASTERN DECISION. 
PARTICULARLY WILL THIS BE TRUE OF ALL DISCRIMINATORY STATE TAXES, OF
WHICH IT IS SAID SOUTH CAROLINA'S IS ONE.  MOREOVER, THOSE RESULTS MUST
FOLLOW REGARDLESS OF THE MCCARRAN ACT'S PROVISIONS.  FOR BY THAT ACT,
IN PRUDENTIAL'S ASSESSMENT, CONGRESS NEITHER INTENDED TO, NOR COULD,
VALIDATE SUCH TAXES. 

IT IS NOT SURPRISING THAT THE ATTACK IS THUS BROAD.  WHEN A DECISION
IS CONCEIVED AS PRECEDENT-SMASHING, RIGHTLY OR WRONGLY, THE
CONCEPTION'S INVITATION MAY BE TO GREATER BACKTRACKING THAN IS
JUSTIFIED, IN SPITE OF WARNING TO PROCEED WITH CARE.  322 U.S. 533, 547
FF. 

PRUDENTIAL'S MISCONCEPTION RELATES NOT TO THE NECESSITY FOR APPLYING,
BUT TO THE NATURE AND SCOPE OF THE NEGATIVE FUNCTION OF THE COMMERCE
CLAUSE.  IT IS NOT THE SIMPLE, CLEAN-CUTTING TOOL SUPPOSED.  NOR IS ITS
SWATH ALWAYS CORRELATIVE WITH THAT CUT BY THE AFFIRMATIVE EDGE, AS
SEEMS TO BE ASSUMED.  FOR CLEANLY AS THE COMMERCE CLAUSE HAS WORKED
AFFIRMATIVELY ON THE WHOLE, ITS IMPLIED NEGATIVE OPERATION ON STATE
POWER HAS BEEN UNEVEN, AT TIMES HIGHLY VARIABLE.  MORE OFTEN THAN NOT,
IN MATTERS MORE GOVERNABLE BY LOGIC AND LESS BY EXPERIENCE, THE
BUSINESS OF NEGATIVE IMPLICATION IS SLIPPERY.  INTO WHAT IS THUS LEFT
OPEN FOR INFERENCE TO FILL, DIVERGENT IDEAS OF MEANING MAY BE READ MUCH
MORE READILY THAN INTO WHAT HAS BEEN MADE EXPLICIT BY AFFIRMATION. 
THAT POSSIBILITY IS BROADENED IMMEASURABLY WHEN NOT LOGIC ALONE, BUT
LARGE CHOICES OF POLICY, AFFECTED IN THIS INSTANCE BY EVOLVING
EXPERIENCE OF FEDERALISM, CONTROL IN GIVING CONTENT TO THE IMPLIED
NEGATION.  IN ALL OUR CONSTITUTIONAL HISTORY THIS HAS BECOME NO MORE
APPARENT THAN IN COMMERCE CLAUSE DISPOSITIONS. 

THAT THE CLAUSE IMPOSES SOME RESTRAINT UPON STATE POWER HAS NEVER
BEEN DOUBTED.  FOR OTHERWISE THE GRANT OF POWER TO CONGRESS WOULD BE
WHOLLY INEFFECTIVE.  BUT THE LIMITATION NOT ONLY IS IMPLIED.  IT IS
OPEN TO DIFFERENT IMPLICATIONS OF MEANING.  AND THIS ACCOUNTS LARGELY
FOR VARIATIONS IN THIS FIELD CONTINUING ALMOST FROM THE BEGINNING UNTIL
NOW.  FN17  THEY STARTED WITH MARSHALL AND TANEY, WENT FORWARD FROM
WAITE TO FULLER, AND HAVE BEEN PROJECTED IN LATER DIFFERENCES PERHAPS
LESS BROAD, BUT HARDLY LESS CONTROVERSIAL.  FN18  CONSEQUENTLY IN ITS
PROHIBITIVE, AS IN ITS AFFIRMATIVE OR ENABLING, EFFECTS THE HISTORY OF
THE COMMERCE CLAUSE HAS BEEN ONE OF VERY CONSIDERABLE JUDICIAL
OSCILLATION. 

MOREOVER, THE PARALLEL ENCOMPASSES THE LATEST TURN IN THE LONG-RUN
TREND.  FOR, CONCURRENTLY WITH THE BROADENING OF THE SCOPE FOR
PERMISSIBLE APPLICATION OF FEDERAL AUTHORITY,  FN19  THE TENDENCY ALSO
HAS RUN TOWARD SUSTAINING STATE REGULATORY AND TAXING MEASURES FORMERLY
REGARDED AS INCONSONANT WITH CONGRESS' UNEXERCISED POWER OVER COMMERCE
N20, AND TO DOING SO BY A NEW, OR RENEWED, EMPHASIS ON FACTS AND
PRACTICAL CONSIDERATIONS RATHER THAN DOGMATIC LOGISTIC.  FN21 THESE
FACTS ARE OF GREAT IMPORTANCE FOR DISPOSING OF SUCH CONTROVERSIES.  FOR
IN EFFECT THEY HAVE TRANSFERRED THE GENERAL PROBLEM OF ADJUSTMENT TO A
LEVEL MORE TOLERANT OF BOTH STATE AND FEDERAL LEGISLATIVE ACTION. 

II. 

WE ARE NOT REQUIRED HOWEVER TO CONSIDER WHETHER, ON THAT LEVEL, THE
AUTHORITIES ON WHICH PRUDENTIAL CHIEFLY RELIES WOULD REQUIRE
INVALIDATION OF SOUTH CAROLINA'S TAX.  FOR THEY ARE NOT IN POINT. 

AS HAS BEEN STATED, THEY ARE THE CASES WHICH FROM WELTON V. MISSOURI,
91 U.S. 275, UNTIL NOW HAVE OUTLAWED STATE TAXES FOUND TO DISCRIMINATE
AGAINST INTERSTATE COMMERCE N22.  NO ONE OF THEM INVOLVED A SITUATION
LIKE THAT NOW HERE.  IN EACH THE QUESTION OF VALIDITY OF THE STATE
TAXING STATUTE AROSE WHEN CONGRESS' POWER LAY DORMANT.  IN NONE HAD
CONGRESS ACTED OR PURPORTED TO ACT, EITHER BY WAY OF CONSENTING TO THE
STATE'S TAX OR OTHERWISE.  THOSE CASES THEREFORE PRESENTED NO QUESTION
OF THE VALIDITY OF SUCH A TAX WHERE CONGRESS HAD TAKEN AFFIRMATIVE
ACTION CONSENTING TO IT OR PURPORTING TO GIVE IT VALIDITY.  NOR,
CONSEQUENTLY, COULD THEY STAND AS CONTROLLING PRECEDENTS FOR SUCH A
CASE.    THIS WOULD SEEM SO OBVIOUS AS HARDLY TO REQUIRE FURTHER
COMMENT, EXCEPT FOR THE FACT THAT PRUDENTIAL HAS ARGUED SO EARNESTLY TO
THE CONTRARY.  ITS POSITION PUTS THE MCCARRAN ACT TO ONE SIDE, EITHER
AS NOT INTENDED TO HAVE EFFECT TOWARD VALIDATING THIS SORT OF TAX OR,
IF CONSTRUED OTHERWISE, AS CONSTITUTIONALLY INEFFECTIVE TO DO SO.
THOSE QUESTIONS PRESENT THE CONTROLLING ISSUES IN THIS CASE.  BUT
BEFORE WE TURN TO THEM IT WILL BE HELPFUL TO NOTE THE EXACT EFFECTS OF
PRUDENTIAL'S ARGUMENT. 

FUNDAMENTALLY IT MAINTAINS THAT THE COMMERCE CLAUSE "OF ITS OWN
FORCE" AND WITHOUT REFERENCE TO ANY ACTION BY CONGRESS, WHETHER THROUGH
ITS SILENCE  FN23  OR OTHERWISE, FORBIDS DISCRIMINATORY STATE TAXATION
OF INTERSTATE COMMERCE.  THIS IS TO SAY, IN EFFECT, THAT NEITHER
CONGRESS ACTING AFFIRMATIVELY NOR CONGRESS AND THE STATES THUS ACTING
COORDINATELY CAN VALIDLY IMPOSE ANY REGULATION WHICH THE COURT HAS
FOUND OR WOULD FIND TO BE FORBIDDEN BY THE COMMERCE CLAUSE, IF LAID
ONLY BY STATE ACTION TAKEN WHILE CONGRESS' POWER LIES DORMANT.  IN THIS
VIEW THE LIMITS OF STATE POWER TO REGULATE COMMERCE IN THE ABSENCE OF
AFFIRMATIVE ACTION BY CONGRESS ARE ALSO THE LIMITS OF CONGRESS'
PERMISSIBLE ACTION IN THIS RESPECT, WHETHER TAKEN ALONE OR IN
COORDINATION WITH STATE LEGISLATION. 

MERELY TO STATE THE POSITION IN THIS WAY COMPELS ITS REJECTION.  SO
CONCEIVED, CONGRESS' POWER OVER COMMERCE WOULD BE NULLIFIED TO A VERY
LARGE EXTENT.  FN24  FOR IN ALL THE VARIATIONS OF COMMERCE CLAUSE
THEORY IT HAS NEVER BEEN THE LAW THAT WHAT THE STATES MAY DO IN THE
REGULATION OF COMMERCE, CONGRESS BEING SILENT, IS THE FULL MEASURE OF
ITS POWER.  MUCH LESS HAS THIS BOUNDARY BEEN THOUGHT TO CONFINE WHAT
CONGRESS AND THE STATES ACTING TOGETHER MAY ACCOMPLISH.  SO TO REGARD
THE MATTER WOULD INVERT THE CONSTITUTIONAL GRANT INTO A LIMITATION UPON
THE VERY POWER IT CONFERS. 

THE COMMERCE CLAUSE IS IN NO SENSE A LIMITATION UPON THE POWER OF
CONGRESS OVER INTERSTATE AND FOREIGN COMMERCE.  ON THE CONTRARY, IT IS,
AS MARSHALL DECLARED IN GIBBONS V. OGDEN, A GRANT TO CONGRESS OF
PLENARY AND SUPREME AUTHORITY OVER THOSE SUBJECTS.  THE ONLY LIMITATION
IT PLACES UPON CONGRESS' POWER IS IN RESPECT TO WHAT CONSTITUTES
COMMERCE, INCLUDING WHATEVER RIGHTLY MAY BE FOUND TO AFFECT IT
SUFFICIENTLY TO MAKE CONGRESSIONAL REGULATION NECESSARY OR
APPROPRIATE.  FN25 THIS LIMITATION, OF COURSE, IS ENTIRELY DISTINCT
FROM THE IMPLIED PROHIBITION OF THE COMMERCE CLAUSE.  THE ONE IS
CONCERNED WITH DEFINING COMMERCE, WITH FIXING THE OUTER BOUNDARY OF THE
FIELD OVER WHICH THE AUTHORITY GRANTED SHALL GOVERN.  THE OTHER RELATES
ONLY TO MATTERS WITHIN THE FIELD OF COMMERCE, ONCE THIS IS DEFINED,
INCLUDING WHATEVER MAY FALL WITHIN THE "AFFECTATION" DOCTRINE.  THE ONE
LIMITATION BOUNDS THE POWER OF CONGRESS.  THE OTHER CONFINES ONLY THE
POWERS OF THE STATES.  AND THE TWO AREAS ARE NOT COEXTENSIVE.  THE
DISTINCTION IS NOT ALWAYS CLEARLY OBSERVED, FOR BOTH QUESTIONS MAY AND
INDEED AT TIMES DO ARISE IN THE SAME CASE AND IN CLOSE RELATIONSHIP. 
FN26  BUT TO BLUR THEM AND THEREBY EQUATE THE IMPLIED PROHIBITION WITH
THE AFFIRMATIVE ENDOWMENT IS ALTOGETHER FALLACIOUS.  THERE IS NO SUCH
EQUIVALENCE. 

THIS APPEARS MOST OBVIOUSLY PERHAPS IN THE CASES MOST IMPORTANT FOR
THE DECISION IN THIS CAUSE.  THEY ARE THE ONES INVOLVING SITUATIONS
WHERE THE SILENCE OF CONGRESS OR THE DORMANCY OF ITS POWER HAS BEEN
TAKEN JUDICIALLY, ON ONE VIEW OR ANOTHER OF ITS CONSTITUTIONAL EFFECTS,
FN27  AS FORBIDDING STATE ACTION, ONLY TO HAVE CONGRESS LATER DISCLAIM
THE PROHIBITION OR UNDERTAKE TO NULLIFY IT.  FN28  NOT YET HAS THIS
COURT HELD SUCH A DISCLAIMER INVALID OR THAT STATE ACTION SUPPORTED BY
IT COULD NOT STAND.  ON THE CONTRARY, IN EACH INSTANCE IT HAS GIVEN
EFFECT TO THE CONGRESSIONAL JUDGMENT CONTRADICTING ITS OWN PREVIOUS
ONE.  FN29 

IT IS TRUE THAT RATIONALIZATIONS HAVE DIFFERED CONCERNING THOSE
DECISIONS,  FN30 INDEED ALSO THAT THE JUDGES PARTICIPATING IN THEM
DIFFERED IN THIS RESPECT.  FN31  BUT THE RESULTS HAVE BEEN LASTING AND
ARE AT LEAST AS IMPORTANT, FOR THE DIRECTION GIVEN TO THE PROCESS OF
ACCOMMODATING FEDERAL AND STATE AUTHORITY, AS THE REASONS STATED FOR
REACHING THEM.  NONE OF THE DECISIONS CONCEDED, BECAUSE NONE INVOLVED
ANY QUESTION OF, THE POWER OF CONGRESS TO MAKE CONCLUSIVE ITS OWN
MANDATE CONCERNING WHAT IS COMMERCE.  BUT APART FROM THAT FUNCTION OF
DEFINING THE OUTER BOUNDARY OF ITS POWER, WHENEVER CONGRESS' JUDGMENT
HAS BEEN UTTERED AFFIRMATIVELY TO CONTRADICT THE COURT'S PREVIOUSLY
EXPRESSED VIEW THAT SPECIFIC ACTION TAKEN BY THE STATES IN CONGRESS'
SILENCE WAS FORBIDDEN BY THE COMMERCE CLAUSE, THIS BODY HAS
ACCOMMODATED ITS PREVIOUS JUDGMENT TO CONGRESS' EXPRESSED APPROVAL. 

SOME PART OF THIS READJUSTMENT MAY BE EXPLAINED IN WAYS ACCEPTABLE ON
ANY THEORY OF THE COMMERCE CLAUSE AND THE RELATIONS OF CONGRESS AND THE
COURTS TOWARD ITS FUNCTIONING.  FN32  SUCH EXPLANATIONS, HOWEVER,
HARDLY GO TO THE ROOT OF THE MATTER.  FOR THE FACT REMAINS THAT, IN
THESE INSTANCES, THE SUSTAINING OF CONGRESS' OVERRIDING ACTION HAS
INVOLVED SOMETHING BEYOND CORRECTION OF ERRONEOUS FACTUAL JUDGMENT IN
DEFERENCE TO CONGRESS' PRESUMABLY BETTERINFORMED VIEW OF THE FACTS,
FN33  AND ALSO BEYOND GIVING DUE DEFERENCE TO ITS CONCEPTION OF THE
SCOPE OF ITS POWERS, WHEN IT REPUDIATES, JUST AS WHEN ITS SILENCE IS
THOUGHT TO SUPPORT, THE INFERENCE THAT IT HAS FORBIDDEN STATE ACTION. 
FN34 

PRUDENTIAL HAS NOT SQUARELY MET THIS FACT.  FIXED WITH THE SENSE OF
APPLICABILITY OF THE WELTON OR SHELBY COUNTY LINE OF CASES, IT RATHER
HAS POSED AN ENIGMA FOR THE BEARING OF THE BRIDGE AND LIQUOR CASES UPON
THE DECISION TO BE MADE.  IT IS, IF THE COMMERCE CLAUSE "BY ITS OWN
FORCE" FORBIDS DISCRIMINATORY STATE TAXATION, OR OTHER MEASURES, HOW IS
IT THAT CONGRESS BY EXPRESSLY CONSENTING CAN GIVE THAT ACTION
VALIDITY? 

THE ANSWER NEED NOT BE LABORED.  PRUDENTIAL IN THIS CASE MAKES NO
CONTENTION THAT COMMERCE IS NOT INVOLVED.  ITS ARGUMENT IS EXACTLY THE
OPPOSITE.  ITS CONTENTION FOUNDED ON THE COMMERCE CLAUSE IS ONE WHOLLY
OF IMPLIED PROHIBITION WITHIN THE FIELD OF COMMERCE. 

THIS IT REGARDS AS OPERATIVE NOT ONLY IN CONGRESS' SILENCE, BUT IN
THE FACE OF ITS POSITIVE EXPRESSION BY THE MCCARRAN ACT THAT THE
CONTINUED REGULATION AND TAXATION BY THE STATES OF THE BUSINESS OF
INSURANCE IS IN ACCORD WITH CONGRESS' POLICY.  THAT EXPRESSION RAISES
QUESTIONS CONCERNING ITS OWN VALIDITY AND ALSO CONCERNING WHETHER THE
POLICY STATED EXTENDS TO THE KIND OF STATE LEGISLATION WHICH IS
IMMEDIATELY IN ISSUE.  BUT THOSE QUESTIONS ARE NOT ANSWERED, AS
PRUDENTIAL SEEKS TO HAVE THEM ANSWERED, BY ANY CONCEPTION THAT
CONGRESS' DECLARATION OF POLICY ADDS NOTHING TO THE VALIDITY OF WHAT
THE STATES HAVE DONE WITHIN THE AREA COVERED BY THE DECLARATION OR, IN
OTHER WORDS, THAT IT IS MERE BRUTUM FULMEN.  FOR TO DO THIS NOT ONLY
WOULD PRODUCE INTOLERABLE CONSEQUENCES FOR RESTRICTING CONGRESS'
POWER.  IT WOULD IGNORE THE VERY BASIS ON WHICH THE SECOND WHEELING
BRIDGE CASE AND INDEED THE CLARK DISTILLING CASE HAVE SET THE PATTERN
OF THE LAW FOR GOVERNING SITUATIONS LIKE THAT NOW PRESENTED.  FN35
ACCORDINGLY WE TURN TO THE ISSUES WHICH ARE MORE ALIVE AND SIGNIFICANT
FOR THE FUTURE. 

                                 III. 

IN CONSIDERING THE ISSUES RAISED BY THE MCCARRAN ACT AND THE QUESTION
OF ITS APPLICABILITY, GROUND MAY BE CLEARED BY PUTTING ASIDE SOME
MATTERS STRENUOUSLY ARGUED IN THE STATE SUPREME COURT AND HERE.  FIRST,
IT FOLLOWS FROM WHAT HAS BEEN SAID THAT WE ARE NOT REQUIRED TO
DETERMINE WHETHER SOUTH CAROLINA'S TAX WOULD BE VALID IN THE DORMANCY
OF CONGRESS' POWER.  FOR CONGRESS HAS EXPRESSLY STATED ITS INTENT AND
POLICY IN THE ACT.  AND, FOR REASONS TO BE STATED, WE THINK THAT THE
DECLARATION'S EFFECT IS CLEARLY TO SUSTAIN THE EXACTION AND THAT THIS
CAN BE DONE WITHOUT VIOLATING ANY CONSTITUTIONAL PROVISION. 

BY THE SAME TOKEN, WE NEED NOT CONSIDER WHETHER THE TAX, IF OPERATIVE
IN CONGRESS' UNILLUMINATED SILENCE, WOULD BE DISCRIMINATORY IN THE
SENSE OF AN EXACTION FORBIDDEN BY THE COMMERCE CLAUSE, AS PRUDENTIAL
CATEGORICALLY ASSERTS, OR NOT SO, AS SOUTH CAROLINA MAINTAINS WITH
EQUAL CERTITUDE.  MUCH ATTENTION HAS BEEN GIVEN BOTH HERE AND IN THE
STATE COURT TO THESE QUESTIONS.  BUT IN THE VIEW WE TAKE OF THE CASE
THE CONTROLLING ISSUES UNDERCUT THEM.  NOR DO WE DETERMINE, AS
PRUDENTIAL'S ARGUMENT SEEMS TO SUBSUME, WHETHER ALL OF ITS BUSINESS
DONE IN SOUTH CAROLINA AND AFFECTED BY THE TAX SHOULD BE REGARDED AS
CONSTITUTING INTERSTATE COMMERCE SO AS TO FALL WITHIN THE "IN COMMERCE"
CLASSIFICATION OR, ON THE OTHER HAND, SOME OF IT MAY PROPERLY BE
CONSIDERED AS BEING ONLY LOCAL OR INTRASTATE BUSINESS.  FN36  THESE
QUESTIONS WE PUT TO ONE SIDE.  AND FOR PRESENT PURPOSES WE ASSUME THAT
THE TAX WOULD BE DISCRIMINATORY IN THE SENSE OF PRUDENTIAL'S CONTENTION
AND THAT ALL OF ITS BUSINESS DONE IN SOUTH CAROLINA AND AFFECTED BY THE
TAX IS DONE "IN" OR AS A PART OF INTERSTATE COMMERCE. 

IT IS NOT NECESSARY TO SPEND MUCH TIME WITH INTERPRETING THE MCCARRAN
ACT.  PERTINENTLY IT IS AS FOLLOWS: 

"...  THE CONGRESS HEREBY DECLARES THAT THE CONTINUED REGULATION AND
TAXATION BY THE SEVERAL STATES OF THE BUSINESS OF INSURANCE IS IN THE
PUBLIC INTEREST, AND THAT SILENCE ON THE PART OF THE CONGRESS SHALL NOT
BE CONSTRUED TO IMPOSE ANY BARRIER TO THE REGULATION OR TAXATION OF
SUCH BUSINESS BY THE SEVERAL STATES. 

"SEC. 2.  (A)  THE BUSINESS OF INSURANCE, AND EVERY PERSON ENGAGED
THEREIN, SHALL BE SUBJECT TO THE LAWS OF THE SEVERAL STATES WHICH
RELATE TO THE REGULATION OR TAXATION OF SUCH BUSINESS. 

"(B) NO ACT OF CONGRESS SHALL BE CONSTRUED TO INVALIDATE, IMPAIR, OR
SUPERSEDE ANY LAW ENACTED BY ANY STATE FOR THE PURPOSE OF REGULATING
THE BUSINESS OF INSURANCE, OR WHICH IMPOSES A FEE OR TAX UPON SUCH
BUSINESS, UNLESS SUCH ACT SPECIFICALLY RELATES TO THE BUSINESS OF
INSURANCE  ..."  59 STAT. 33, 34; 15 U.S.C. SECS. 1011-1015.  FN37 

OBVIOUSLY CONGRESS' PURPOSE WAS BROADLY TO GIVE SUPPORT TO THE
EXISTING AND FUTURE STATE SYSTEMS FOR REGULATING AND TAXING THE
BUSINESS OF INSURANCE.  THIS WAS DONE IN TWO WAYS.  ONE WAS BY REMOVING
OBSTRUCTIONS WHICH MIGHT BE THOUGHT TO FLOW FROM ITS OWN POWER, WHETHER
DORMANT OR EXERCISED, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE ACT
ITSELF OR IN FUTURE LEGISLATION.  FN38  THE OTHER WAS BY DECLARING
EXPRESSLY AND AFFIRMATIVELY THAT CONTINUED STATE REGULATION AND
TAXATION OF THIS BUSINESS IS IN THE PUBLIC INTEREST AND THAT THE
BUSINESS AND ALL WHO ENGAGE IN IT "SHALL BE SUBJECT TO" THE LAWS OF THE
SEVERAL STATES IN THESE RESPECTS. 

MOREOVER, IN TAKING THIS ACTION CONGRESS MUST HAVE HAD FULL KNOWLEDGE
OF THE NATION-WIDE EXISTENCE OF STATE SYSTEMS OF REGULATION AND
TAXATION; OF THE FACT THAT THEY DIFFER GREATLY IN THE SCOPE AND
CHARACTER OF THE REGULATIONS IMPOSED AND OF THE TAXES EXACTED; AND OF
THE FURTHER FACT THAT MANY, IF NOT ALL, INCLUDE FEATURES WHICH, TO SOME
EXTENT, HAVE NOT BEEN APPLIED GENERALLY TO OTHER INTERSTATE BUSINESS. 
CONGRESS COULD NOT HAVE BEEN UNACQUAINTED WITH THESE FACTS AND ITS
PURPOSE WAS EVIDENTLY TO THROW THE WHOLE WEIGHT OF ITS POWER BEHIND THE
STATE SYSTEMS, NOTWITHSTANDING THESE VARIATIONS. 

IT WOULD SERVE NO USEFUL PURPOSE NOW TO INQUIRE WHETHER OR HOW FAR
THIS EFFORT WAS NECESSARY, IN VIEW OF THE EXPLICIT RESERVATIONS MADE IN
THE MAJORITY OPINION IN THE SOUTH-EASTERN CASE.  NOR IS IT NECESSARY TO
CONCLUDE THAT CONGRESS, BY ENACTING THE MCCARRAN ACT, SOUGHT TO
VALIDATE EVERY EXISTING STATE REGULATION OR TAX.  FOR IN ALL THAT MASS
OF LEGISLATION MUST HAVE LAIN SOME PROVISIONS WHICH MAY HAVE BEEN
SUBJECT TO SERIOUS QUESTION ON THE SCORE OF OTHER CONSTITUTIONAL
LIMITATIONS IN ADDITION TO COMMERCE CLAUSE OBJECTIONS ARISING IN THE
DORMANCY OF CONGRESS' POWER.  AND WE AGREE WITH PRUDENTIAL THAT THERE
CAN BE NO INFERENCE THAT CONGRESS INTENDED TO CIRCUMVENT CONSTITUTIONAL
LIMITATIONS UPON ITS OWN POWER. 

BUT, THOUGH CONGRESS HAD NO PURPOSE TO VALIDATE UNCONSTITUTIONAL
PROVISIONS OF STATE LAWS, EXCEPT IN SO FAR AS THE CONSTITUTION ITSELF
GIVES CONGRESS THE POWER TO DO THIS BY REMOVING OBSTACLES TO STATE
ACTION ARISING FROM ITS OWN ACTION OR BY CONSENTING TO SUCH LAWS, H.
REP. NO. 143, 79TH CONG., 1ST SESS., P. 3, IT CLEARLY PUT THE FULL
WEIGHT OF ITS POWER BEHIND EXISTING AND FUTURE STATE LEGISLATION TO
SUSTAIN IT FROM ANY ATTACK UNDER THE COMMERCE CLAUSE TO WHATEVER EXTENT
THIS MAY BE DONE WITH THE FORCE OF THAT POWER BEHIND IT, SUBJECT ONLY
TO THE EXCEPTIONS EXPRESSLY PROVIDED FOR. 

TWO CONCLUSIONS, COROLLARY IN CHARACTER AND IMPORTANT FOR THIS CASE,
MUST BE DRAWN FROM CONGRESS' ACTION AND THE CIRCUMSTANCES IN WHICH IT
WAS TAKEN.  ONE IS THAT CONGRESS INTENDED TO DECLARE, AND IN EFFECT
DECLARED, THAT UNIFORMITY OF REGULATION, AND OF STATE TAXATION,  FN39
ARE NOT REQUIRED IN REFERENCE TO THE BUSINESS OF INSURANCE BY THE
NATIONAL PUBLIC INTEREST, EXCEPT IN THE SPECIFIC RESPECTS OTHERWISE
EXPRESSLY PROVIDED FOR.  THIS NECESSARILY WAS A DETERMINATION BY
CONGRESS THAT STATE TAXES, WHICH IN ITS SILENCE MIGHT BE HELD INVALID
AS DISCRIMINATORY, DO NOT PLACE ON INTERSTATE INSURANCE BUSINESS A
BURDEN WHICH IT IS UNABLE GENERALLY TO BEAR OR SHOULD NOT BEAR IN THE
COMPETITION WITH LOCAL BUSINESS.  SUCH TAXES WERE NOT UNCOMMON AMONG
THE STATES,  FN40 AND THE STATUTE CLEARLY INCLUDED SOUTH CAROLINA'S TAX
NOW IN ISSUE. 

THAT JUDGMENT WAS ONE OF POLICY AND REFLECTED LONG AND CLEAR
EXPERIENCE.  FOR, NOTWITHSTANDING THE LONG INCIDENCE OF THE TAX AND ITS
PAYMENT BY PRUDENTIAL WITHOUT QUESTION PRIOR TO THE SOUTH-EASTERN
DECISION, THE RECORD OF PRUDENTIAL'S CONTINUOUS SUCCESS IN SOUTH
CAROLINA OVER DECADES  FN41  REFUTES ANY IDEA THAT PAYMENT OF THE TAX
HANDICAPPED IT IN ANY WAY TENDING TO EXCLUDE IT FROM COMPETITION WITH
LOCAL BUSINESS OR WITH DOMESTIC INSURANCE COMPANIES.  INDEED PRUDENTIAL
MAKES NO CONTRARY CONTENTION ON ANY FACTUAL BASIS, NOR COULD IT WELL DO
SO.  FOR THE SOUTH-EASTERN DECISION DID NOT, AND COULD NOT, WIPE OUT
ALL THIS EXPERIENCE OR ITS WEIGHT FOR BEARING, AS A MATTER OF THE
PRACTICAL CONSEQUENCES RESULTING FROM OPERATION OF THE TAX, UPON THAT
QUESTION.  ROBERTSON V. CALIFORNIA, POST, P. 440.    CONSEQUENTLY
PRUDENTIAL'S CASE FOR DISCRIMINATION MUST REST UPON THE IDEA EITHER
THAT THE COMMERCE CLAUSE FORBIDS THE STATE TO EXACT MORE FROM IT IN
TAXES THAN FROM PURELY LOCAL BUSINESS; OR THAT THE TAX IS SOMEHOW
TECHNICALLY OF AN INHERENTLY DISCRIMINATORY CHARACTER OR POSSIBLY OF A
TYPE WHICH WOULD EXCLUDE OR SERIOUSLY HANDICAP NEW ENTRANTS SEEKING TO
ESTABLISH THEMSELVES IN SOUTH CAROLINA.  AS TO EACH OF THESE GROUNDS,
MOREOVER, THE ARGUMENT SUBSUMES THAT CONGRESS' CONTRARY JUDGMENT, AS A
MATTER OF POLICY RELATING TO THE REGULATION OF INTERSTATE COMMERCE,
CANNOT BE EFFECTIVE, EITHER "OF ITS OWN FORCE" ALONE OR AS OPERATIVE IN
CONJUNCTION WITH AND TO SUSTAIN THE STATE'S POLICY. 

                                 IV. 

IN VIEW OF ALL THESE CONSIDERATIONS, WE WOULD BE GOING VERY FAR TO
RULE THAT SOUTH CAROLINA NO LONGER MAY COLLECT HER TAX.  TO DO SO WOULD
FLOUT THE EXPRESSLY DECLARED POLICIES OF BOTH CONGRESS AND THE STATE. 
MOREOVER IT WOULD ESTABLISH A RULING NEVER HERETOFORE MADE AND IN DOING
THIS WOULD DEPART FROM THE WHOLE TREND OF DECISION IN A GREAT VARIETY
OF SITUATIONS MOST ANALOGOUS TO THE ONE NOW PRESENTED.  FOR, AS WE HAVE
ALREADY EMPHASIZED, THE AUTHORITIES MOST CLOSELY IN POINT UPON THE
PROBLEM ARE NOT, AS APPELLANT INSISTS, THOSE RELATING TO DISCRIMINATORY
STATE TAXES LAID IN THE DORMANCY OF CONGRESS' POWER.  THEY ARE RATHER
THE DECISIONS WHICH, IN EVERY INSTANCE THUS FAR NOT LATER OVERTURNED,
FN42 HAVE SUSTAINED COORDINATED ACTION TAKEN BY CONGRESS AND THE STATES
IN THE REGULATION OF COMMERCE.  FN43 

THE POWER OF CONGRESS OVER COMMERCE EXERCISED ENTIRELY WITHOUT
REFERENCE TO COORDINATED ACTION OF THE STATES IS NOT RESTRICTED, EXCEPT
AS THE CONSTITUTION EXPRESSLY PROVIDES,  FN44  BY ANY LIMITATION WHICH
FORBIDS IT TO DISCRIMINATE AGAINST INTERSTATE COMMERCE AND IN FAVOR OF
LOCAL TRADE.  ITS PLENARY SCOPE ENABLES CONGRESS NOT ONLY TO PROMOTE
BUT ALSO TO PROHIBIT INTERSTATE COMMERCE, AS IT HAS DONE FREQUENTLY AND
FOR A GREAT VARIETY OF REASONS.  FN45  THAT POWER DOES NOT RUN DOWN A
ONE-WAY STREET OR ONE OF NARROWLY FIXED DIMENSIONS.  CONGRESS MAY KEEP
THE WAY OPEN, CONFINE IT BROADLY OR CLOSELY, OR CLOSE IT ENTIRELY,
SUBJECT ONLY TO THE RESTRICTIONS PLACED UPON ITS AUTHORITY BY OTHER
CONSTITUTIONAL PROVISIONS AND THE REQUIREMENT THAT IT SHALL NOT INVADE
THE DOMAINS OF ACTION RESERVED EXCLUSIVELY FOR THE STATES. 

THIS BROAD AUTHORITY CONGRESS MAY EXERCISE ALONE, SUBJECT TO THOSE
LIMITATIONS, OR IN CONJUNCTION WITH COORDINATED ACTION BY THE STATES,
FN46  IN WHICH CASE LIMITATIONS IMPOSED FOR THE PRESERVATION OF THEIR
POWERS BECOME INOPERATIVE AND ONLY THOSE DESIGNED TO FORBID ACTION
ALTOGETHER BY ANY POWER OR COMBINATION OF POWERS IN OUR GOVERNMENTAL
SYSTEM REMAIN EFFECTIVE.  FN47  HERE BOTH CONGRESS AND SOUTH CAROLINA
HAVE ACTED, AND IN COMPLETE COORDINATION, TO SUSTAIN THE TAX.  IT IS
THEREFORE REINFORCED BY THE EXERCISE OF ALL THE POWER OF GOVERNMENT
RESIDING IN OUR SCHEME.  FN48  CLEAR AND GROSS MUST BE THE EVIL WHICH
WOULD NULLIFY SUCH AN EXERTION, ONE WHICH COULD ARISE ONLY BY EXCEEDING
BEYOND CAVIL SOME EXPLICIT AND COMPELLING LIMITATION IMPOSED BY A
CONSTITUTIONAL PROVISION OR PROVISIONS DESIGNED AND INTENDED TO OUTLAW
THE ACTION TAKEN ENTIRELY FROM OUR CONSTITUTIONAL FRAMEWORK. 

IN THIS LIGHT THE ARGUMENT THAT THE DEGREE OF DISCRIMINATION WHICH
SOUTH CAROLINA'S TAX HAS INVOLVED, IF ANY, PUTS IT BEYOND THE POWER OF
GOVERNMENT TO CONTINUE MUST FALL OF ITS OWN WEIGHT.  NO CONCEIVABLE
VIOLATION OF THE COMMERCE CLAUSE, IN LETTER OR SPIRIT, IS PRESENTED. 
NOR IS CONTRAVENTION OF ANY OTHER LIMITATION. 

A WORD SHOULD BE ADDED IN THE LATTER RESPECT.  PRUDENTIAL HAS NOT
URGED GROUNDS FOUNDED UPON OTHER CONSTITUTIONAL PROVISIONS THAN THE
COMMERCE CLAUSE, EXCEPT IN RELATION TO THE MCCARRAN ACT AND THEN ONLY
IN THE EVENT IT SHOULD BE CONSTRUED AS HAVING EFFECT TO VALIDATE
CONTINUED EXACTION OF THE TAX.  AS HAS BEEN SAID, IT REGARDS THE
STATUTE AS NEITHER INTENDED NOR EFFECTIVE TO "VALIDATE, AUTHORIZE, OR
SANCTION STATE STATUTES WHICH DISCRIMINATE AGAINST INTERSTATE
COMMERCE."  BUT, AGAINST THE EVENT THAT THE ACT SHOULD BE TAKEN AS
INTENDED TO HAVE SUCH AN EFFECT, IT PUTS FORWARD THE SOMEWHAT NOVEL
CONTENTIONS THAT THE STATUTE WOULD BE IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT; OF THE FIRST CLAUSE OF ARTICLE I, SEC.
8, REQUIRING THAT "ALL DUTIES, IMPOSTS AND EXCISES SHALL BE UNIFORM
THROUGHOUT THE UNITED STATES"; OF ARTICLE I, SEC. 1, "WHICH REQUIRES
LEGISLATION TO BE ENACTED BY CONGRESS"; AND, APPARENTLY, OF THE TENTH
AMENDMENT, "AS A VIOLATION OF THE STATES' POWER TO TAX FOR PURPOSES OF
RAISING REVENUE FOR THEIR OWN USE, WHICH POWER IS VESTED EXCLUSIVELY IN
THE STATES."  FN49 

THESE ARGUMENTS MAY BE SUMMARILY DISPOSED OF.  AS FOR THE DUE PROCESS
CONTENTION, IT WAS SETTLED BY A LONG LINE OF AUTHORITIES PRIOR TO THE
SOUTH-EASTERN DECISION, THAT THE SIMILAR PROVISION OF THE FOURTEENTH
AMENDMENT, AS WELL AS THAT REQUIRING EQUAL PROTECTION OF THE LAWS, DOES
NOT FORBID THE STATES TO LAY AND COLLECT SUCH A TAX AS SOUTH
CAROLINA'S.  FN50  CERTAINLY THE FIFTH AMENDMENT DOES NOT MORE NARROWLY
CONFINE THE POWER OF CONGRESS; NOR DO IT AND THE FOURTEENTH TAKEN
TOGETHER ACCOMPLISH SUCH A RESTRICTION UPON THE COORDINATED EXERCISE OF
POWER BY THE CONGRESS AND THE STATES. 

THE ARGUMENT GROUNDED UPON THE FIRST CLAUSE OF ARTICLE I, SEC. 8,
REQUIRING THAT EXCISES SHALL BE UNIFORM THROUGHOUT THE UNITED STATES,
IDENTIFIES THE STATE EXACTION WITH THE LAYING OF AN EXCISE BY CONGRESS,
TO WHICH ALONE THE LIMITATION APPLIES.  THIS IS DONE ON THE THEORY THAT
NO MORE HAS OCCURRED THAN THAT CONGRESS HAS "ADOPTED" THE TAX AS ITS
OWN, A CONCEPTION WHICH OBVIOUSLY IGNORES THE STATE'S EXERTION OF ITS
OWN POWER AND, FURTHERMORE, SEEKS TO RESTRICT THE COORDINATED EXERCISE
OF FEDERAL AND STATE AUTHORITY BY A LIMITATION APPLICABLE ONLY TO THE
FEDERAL TAXING POWER WHEN IT IS EXERTED WITHOUT REFERENCE TO ANY STATE
ACTION.  FN51  THE SAME OBSERVATION APPLIES ALSO TO THE CONTENTION
BASED ON ARTICLE I, SEC. 1. 

THE FINAL CONTENTION THAT TO SUSTAIN THE ACT, AND THUS THE TAX, WOULD
BE AN INVASION OF THE STATE'S OWN POWER OF TAXATION IS SO CLEARLY
LACKING IN MERIT AS TO CALL FOR NO COMMENT OTHER THAN TO POINT OUT
THAT, BY JUXTAPOSITION WITH THE CONTENTIONS DISCUSSED IN THE PRECEDING
PARAGRAPH, THE EFFECT WOULD BE AT ONE STROKE TO BRING THE ACT INTO
COLLISION WITH LIMITATIONS OPERATIVE ONLY UPON THE FEDERAL POWER AND AT
THE SAME TIME TO NULLIFY STATE AUTHORITY. 

NO SUCH ANOMALOUS CONSEQUENCE FOLLOWS FROM THE DIVISION OF
LEGISLATIVE POWER INTO THE RESPECTIVE SPHERES OF FEDERAL AND STATE
AUTHORITY.  THERE ARE LIMITATIONS APPLICABLE TO EACH OF THESE
SEPARATELY AND SOME TO THEIR COORDINATED EXERCISE.  BUT NEITHER THE
FORMER NOR THE LATTER ARE TO BE FOUND MERELY IN THE FACT THAT THE
AUTHORITY IS THUS DIVIDED.  SUCH A CONCEPTION WOULD REDUCE THE JOINT
EXERCISE OF POWER BY CONGRESS AND THE STATES TO ACHIEVE COMMON ENDS IN
THE REGULATION OF OUR SOCIETY BELOW THE EFFECTIVE RANGE OF EITHER POWER
SEPARATELY EXERTED, WITHOUT BASIS IN SPECIFIC CONSTITUTIONAL LIMITATION
OR OTHERWISE THAN IN THE DIVISION ITSELF.  FN52  WE KNOW OF NO
GROUNDING, IN EITHER CONSTITUTIONAL EXPERIENCE OR SPIRIT, FOR SUCH A
RESTRICTION.  FOR GREAT REASONS OF POLICY AND HISTORY NOT NOW NECESSARY
TO RESTATE, THESE GREAT POWERS WERE SEPARATED.  THEY WERE NOT FORBIDDEN
TO COOPERATE OR BY DOING SO TO ACHIEVE LEGISLATIVE CONSEQUENCES,
PARTICULARLY IN THE GREAT FIELDS OF REGULATING COMMERCE AND TAXATION,
WHICH, TO SOME EXTENT AT LEAST, NEITHER COULD ACCOMPLISH IN ISOLATED
EXERTION.  FN53 

WE HAVE CONSIDERED APPELLANT'S OTHER CONTENTIONS, INCLUDING THE
SUGGESTION THAT THE MCCARRAN ACT, CONSTRUED AS WE HAVE INTERPRETED IT
AND THUS GIVEN EFFECT, WOULD INVOLVE AN UNCONSTITUTIONAL DELEGATION BY
CONGRESS OF ITS POWER TO THE STATES.  FOR REASONS ALREADY SET FORTH AND
OTHERS, INCLUDING THE FACT THAT NO INSTANCE OF DELEGATION IS INVOLVED
ON THE FACTS, WE FIND THEM WITHOUT MERIT. 

THE JUDGMENT ACCORDINGLY IS AFFIRMED. 

FN1  THE STATUTES IMPOSING THE TAX ARE SECS. 7948 AND 7949, SOUTH
CAROLINA CODE OF 1942.  EACH SECTION IN FACT IMPOSES A SEPARATE TAX,
THE FORMER OF TWO PER CENT, THE LATTER OF ONE PER CENT, ON GROSS
PREMIUM RETURNS "FROM THE STATE," WITH PROVISIONS UNDER SEC. 7948 FOR
REDUCTION IN THE AMOUNT OF THE TAX SCALED TO SPECIFIED INVESTMENTS IN
SOUTH CAROLINA SECURITIES OR PROPERTY.  BOTH TAXES ARE LAID "IN
ADDITION TO THE ANNUAL LICENSE FEES NOW PROVIDED BY LAW," AND ARE
STATED IN TERMS TO BE REQUIRED "AS AN ADDITIONAL AND GRADED LICENSE
FEE" (SEC. 7948) OR AS "A GRADUATED LICENSE FEE."  SEC. 7949.  THE TWO
TAXES HAVE BEEN TREATED IN COMBINATION, FOR PURPOSES OF THIS
LITIGATION, AS BEING IN EFFECT A SINGLE TAX OF THREE PER CENT. 

FN2  SECTIONS 7948 AND 7949 EXPRESSLY EXEMPT SOUTH CAROLINA
CORPORATIONS FROM PAYMENT OF THE TAX.  THEY HOWEVER ARE SUBJECT TO
OTHER TAXES, WHICH PRUDENTIAL MAINTAINS HAVE NO BEARING UPON THE
ISSUES, OTHER THAN POSSIBLY TO DEMONSTRATE THE DISCRIMINATORY CHARACTER
AND EFFECTS OF THE EXACTION IN ISSUE.  SEE NOTE 36.  THESE ARE CHIEFLY
TAXES ON REAL AND PERSONAL PROPERTY, INCIDENCE OF WHICH PRUDENTIAL
LARGELY ESCAPES BY THE LOCATION OF ITS PROPERTY IN OTHER STATES. 

FN3  EXTENDING FROM WELTON V. MISSOURI, 91 U.S. 275, TO NIPPERT V.
RICHMOND, 327 U.S. 416.  SEE THE COLLECTION OF AUTHORITIES IN
MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, 56, N. 11. 

FN4  IN APPARENT RELIANCE NOT ONLY UPON DECISIONS RENDERED PRIOR TO
THE SOUTH-EASTERN DECISION OR MADE WITHOUT REFERENCE TO ITS RULING,
E.G., LINCOLN NATIONAL INS. CO. V. READ, 325 U.S. 673; BETHLEHEM MOTORS
CORP. V. FLYNT, 256 U.S. 421; BUT INDEED ALSO PAUL V. VIRGINIA, 8
WALL.  168; HOOPER V. CALIFORNIA, 155 U.S. 648; AND LIKE AUTHORITIES. 

THE STATE ALSO MAINTAINS THAT PRUDENTIAL'S SOUTH CAROLINA BUSINESS IS
NOT ALTOGETHER INTERSTATE COMMERCE BUT CONSISTS, IN SUBSTANTIAL PART,
OF LOCAL TRANSACTIONS, THE AGGREGATE OF WHICH MEASURES THE TAX, FOR
WHICH VIEW IT RELIES UPON SUCH DIVERSE DECISIONS AS MCGOLDRICK V.
BERWIND-WHITE CO., 309 U.S. 33; INTERNATIONAL SHOE CO. V. SHARTEL, 279
U.S. 429; WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250; AND
POLISH NATIONAL ALLIANCE V. LABOR BOARD, 322 U.S. 643.  SEE NOTE 36 AND
TEXT. 

FN5  THE PERTINENT PORTIONS OF THE ACT ARE SET FORTH IN THE TEXT,
PART III AT NOTE 37. 

FN6  CF. UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S.
533, AT NOTES 9 AND 23; BUT SEE ALSO NOTE 33 FOR AN EARLY AND HIGHLY
AUTHORITATIVE BUT LESS MUTUALLY EXCLUSIVE VIEW OF THE POSSIBLE
ALTERNATIVES. 

FN7  AMONG THE VOLUMES WHICH HAVE BEEN WRITTEN, SPECIAL REFERENCE MAY
BE MADE TO FRANKFURTER, THE COMMERCE CLAUSE (1937); RIBBLE, STATE AND
NATIONAL POWER OVER COMMERCE (1937); GAVIT, THE COMMERCE CLAUSE (1932);
AND SEE DOWLING, INTERSTATE COMMERCE AND STATE POWER (1940) 27 VA. L.
REV. 1.  FOR THOUGHTFUL COMMENT SINCE THE SOUTH-EASTERN DECISION, SEE
PATTERSON, THE FUTURE OF STATE SUPERVISION OF INSURANCE (1944) 23 TEX.
L. REV. 18; NOTE, CONGRESSIONAL CONSENT TO DISCRIMINATORY STATE
LEGISLATION (1945) 45 COL. L. REV. 927. 

FN8  "JUDGES LEGISLATE INTERSTITIALLY AND THE INTERSTICES WERE GREAT
IN MARSHALL'S TIME."  RIBBLE, STATE AND NATIONAL POWER OVER COMMERCE
(1937) 47. 

FN9  "LINES OF DEMARCATION ARE DRAWN LARGELY ACCORDING TO THE PULL OF
THE COURT AT ONE PERIOD TOWARDS THE INTERESTS OF LOCAL SELF-GOVERNMENT,
AND AT ANOTHER IN THE DIRECTION OF A NATION-WIDE RULE."  FRANKFURTER,
THE COMMERCE CLAUSE (1937) 97. 

FN10  S. REP. NO. 1112, 78TH CONG., 2D SESS. 2. 

FN11  E.G., HAMMER V. DAGENHART, 247 U.S. 251, OVERRULED BY UNITED
STATES V. DARBY, 312 U.S. 100; COMPARE UNITED STATES V. E.C. KNIGHT
CO., 156 U.S. 1, WITH UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S.
106; SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495, WITH LABOR BOARD
V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1.  SEE ALSO DISCUSSION IN
WICKARD V. FILBURN, 317 U.S. 111, 118 FF. 

SEE RIBBLE, STATE AND NATIONAL POWER OVER COMMERCE (1937) 63, N. 39,
FOR LISTING OF THE DECISIONS INVALIDATING ACTS OF CONGRESS PRIOR TO
1879, NOTING THAT MR. JUSTICE MILLER WAS "BUT SLIGHTLY IN ERROR" IN THE
STATEMENT, IN TRADE-MARK CASES, 100 U.S. 82, 96, THAT ONE THEN MIGHT
COUNT "ON HIS FINGERS" THOSE DECISIONS. 

FN12  BEGINNING IN MODERN PHASE WITH ENACTMENT OF INTERSTATE COMMERCE
COMMISSION AND ANTI-TRUST LEGISLATION NEAR THE BEGINNING OF THE PRESENT
CENTURY.  THE CATALOGUE IS NOW TOO LONG TO REPEAT HERE. 

FN13  SEE GERMAN ALLIANCE INS. CO. V. KANSAS, 233 U.S. 389, 414, 415;
LA TOURETTE V. MCMASTER, 248 U.S. 465, 467; NATIONAL UNION FIRE INS.
CO. V. WANBERG, 260 U.S. 71, 74; CF. OSBORN V. OZLIN, 310 U.S. 53, 65:
"GOVERNMENT HAS ALWAYS HAD A SPECIAL RELATION TO INSURANCE."  SEE ALSO
UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533,
DISSENTING OPINION AT 585. 

FN14  SEE ALLGEYER V. LOUISIANA, 165 U.S. 578; NEW YORK LIFE INS. CO.
V. HEAD, 234 U.S. 149; FIDELITY & DEPOSIT CO. V. TAFOYA, 270 U.S. 426;
ST. LOUIS COMPRESS CO. V. ARKANSAS, 260 U.S. 346; HOOPESTON CO. V.
CULLEN, 318 U.S. 313; POWELL, THE SUPREME COURT AND STATE POLICE POWER,
1922-1930(1932) 18 VA. L. REV. 1, 140 ET SEQ.; ALSO ST. LOUIS
SOUTHWESTERN R. CO. V. ALEXANDER, 227 U.S. 218, WITH WHICH COMPARE
HENDERSON, THE POSITION OF FOREIGN CORPORATIONS IN AMERICAN
CONSTITUTIONAL LAW (1918) C. V. CF. HARVESTER CO. V. DEPT. OF TREASURY,
322 U.S. 340, CONCURRING OPINION, 349, AT 353 FF.; AND SEE
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310.    FN15  ACCORDING
TO PRUDENTIAL'S BRIEF, IT TRANSACTS BUSINESS IN ALL FORTYEIGHT STATES
AND ON DECEMBER 31, 1944, "HAD IN FORCE 33,933,077 POLICIES, INSURING
APPROXIMATELY 22,900,000 PERSONS, FOR A TOTAL AMOUNT OF
$22,741,134,075; AND 36,733 ANNUITY CONTRACTS OPERATIVE DURING THE
LIVES OF APPROXIMATELY 300,000 PERSONS AND PROVIDING FOR AN ANNUAL
INCOME OF APPROXIMATELY $63,200,000 ON SUCH LIVES.  DURING THE YEAR
1944 THE APPELLANT ISSUED 2,412,150 POLICIES, INSURING THE LIVES OF
APPROXIMATELY 2,170,000 PERSONS, IN THE TOTAL AMOUNT OF $2,668,714,022;
AND ENTERED INTO 451 ANNUITY CONTRACTS OPERATIVE DURING THE LIVES OF
APPROXIMATELY 600 PERSONS AND PROVIDING FOR AN ANNUAL INCOME OF
APPROXIMATELY $150,000 ON SUCH LIVES.  DURING THE YEAR 1944 THE
APPELLANT COLLECTED AS PREMIUMS ON INSURANCE POLICIES $681,052,095.07,
AND PAID OUT AS CLAIMS ON POLICIES $246,776,197.45; AND IT PAID OUT
$13,690,781.93 ON ANNUITY CONTRACTS." 

FOR SOUTH CAROLINA, THE COMPANY "HAD IN FORCE 26,373 POLICIES
INSURING THE LIVES OF APPROXIMATELY 20,000 PERSONS RESIDENT IN SAID
STATE FOR A TOTAL AMOUNT OF $30,827,184.00.  DURING THE YEAR ENDING
DECEMBER 31, 1944, 1,439 POLICIES INSURING THE LIVES OF APPROXIMATELY
1,000 PERSONS RESIDENT IN SAID STATE FOR A TOTAL AMOUNT OF
$1,475,062.00 WERE ISSUED, AND $457,602.28 IN CLAIMS WERE PAID ON
POLICIES COVERING THE LIVES OF RESIDENTS."  THE SOUTH CAROLINA PREMIUM
TAX FOR 1943 AMOUNTED TO $18,496.87; FOR 1944, $19,676.94.  ALL OTHER
STATE OR LOCAL TAXES PAID IN 1944 AMOUNTED TO $3,103.92, MAKING A TOTAL
FOR THE YEAR FOR ALL TAXES OF $22,780.86. 

FN16  322 U.S. 533, DISSENTING OPINION AT 590; SEE NOTE 40, INFRA;
CF. ROBERTSON V. CALIFORNIA, POST, P. 440. 

FN17  THAT THE QUESTION WAS DISCUSSED BUT NOT SETTLED IN THE
CONSTITUTIONAL CONVENTION ITSELF, APPEARS FROM DEBATE ON SEPTEMBER 15,
1787, TWO DAYS BEFORE SUBMISSION OF THE PROPOSED CONSTITUTION TO
CONGRESS, A PORTION OF WHICH BEARS QUOTATION: 

"MR. MCHENRY & MR. CARROL MOVED THAT 'NO STATE SHALL BE RESTRAINED
FROM LAYING DUTIES OF TONNAGE FOR THE PURPOSE OF CLEARING HARBOURS AND
ERECTING LIGHT-HOUSES.' 

"COL. MASON IN SUPPORT OF THIS EXPLAINED AND URGED THE SITUATION OF
THE CHESAPEAK WHICH PECULIARLY REQUIRED EXPENCES OF THIS SORT. 

"MR. GOVR.  MORRIS.  THE STATES ARE NOT RESTRAINED FROM LAYING
TONNAGE AS THE CONSTITUTION NOW STANDS.  THE EXCEPTION PROPOSED WILL
IMPLY THE CONTRARY, AND WILL PUT THE STATES IN A WORSE CONDITION THAN
THE GENTLEMAN (COL MASON) WISHES. 

"MR. MADISON.  WHETHER THE STATES ARE NOW RESTRAINED FROM LAYING
TONNAGE DUTIES DEPENDS ON THE EXTENT OF THE POWER 'TO REGULATE
COMMERCE.'  THESE TERMS ARE VAGUE BUT SEEM TO EXCLUDE THIS POWER OF THE
STATES - THEY MAY CERTAINLY BE RESTRAINED BY TREATY.  HE OBSERVED THAT
THERE WERE OTHER OBJECTS FOR TONNAGE DUTIES AS THE SUPPORT OF SEAMEN
&C.  HE WAS MORE & MORE CONVINCED THAT THE REGULATION OF COMMERCE WAS
IN ITS NATURE INDIVISIBLE AND OUGHT TO BE WHOLLY UNDER ONE AUTHORITY. 

"MR. SHERMAN.  THE POWER OF THE U. STATES TO REGULATE TRADE BEING
SUPREME CAN CONTROUL INTERFERENCES OF THE STATE REGULATIONS (WHEN) SUCH
INTERFERENCES HAPPEN; SO THAT THERE IS NO DANGER TO BE APPREHENDED FROM
A CONCURRENT JURISDICTION. 

"MR. LANGDON INSISTED THAT THE REGULATION OF TONNAGE WAS AN ESSENTIAL
PART OF THE REGULATION OF TRADE, AND THAT THE STATES OUGHT TO HAVE
NOTHING TO DO WITH IT.  ON MOTION 'THAT NO STATE SHALL LAY ANY DUTY ON
TONNAGE WITHOUT THE CONSENT OF CONGRESS' 

"N.H - AY - MAS.  AY. CT. DIVD.  N.J. AY. PA. NO. DEL. AY. MD. AY.
VA. NO. N - C. NO S - C. AY. GEO. NO. (AYES - 6; NOES - 4; DIVIDED -
1.)"  FARRAND, RECORDS OF THE FEDERAL CONSTITUTIONAL CONVENTION OF
1787(1937), VOL. II, 625-626. 

SEE NOTE, CONGRESSIONAL CONSENT TO DISCRIMINATORY STATE LEGISLATION
(1945) 45 COL. L. REV. 927, 946 FF., FOR A SHORT SUMMARY OF VIEWS
EXPRESSED IN THE DEBATES AND LATER BY MEMBERS OF THE CONVENTION.  SEE
ALSO ABEL, THE COMMERCE CLAUSE IN THE CONSTITUTIONAL CONVENTION AND IN
CONTEMPORARY COMMENT (1941) 25 MINN. L. REV. 432; HAMILTON AND ADAIR,
THE POWER TO GOVERN (1937). 

FN18  "THE CATEGORIES OF 'BURDENS' ON INTERSTATE COMMERCE, OF STATE
LAWS 'DIRECTLY AFFECTING' INTERSTATE COMMERCE, ETC., ARE NATURAL
CONCOMITANTS OF MARSHALL'S DOCTRINE.  THE THEORIES AS TO THE SILENCE OF
CONGRESS ARE THE OUTGROWTH OF TANEY'S.  WHEN DIVERSE THEORIES COHABIT,
THE MISCEGENATION MAY PRODUCE STRANGE PROGENY."  RIBBLE, 204.  FOR
TRACINGS OF ALL BUT THE LATEST OF THE VARIOUS TRENDS, SEE THE SUMMARIES
CITED IN NOTE 7; SEE ALSO BIKLE, THE SILENCE OF CONGRESS (1927) 41
HARV. L. REV. 200.  MORE RECENT DIVERSITIES ARE DISCUSSED IN DOWLING,
INTERSTATE COMMERCE AND STATE POWER, 27 VA. L. REV. 1, 8 FF.  SEE ALSO
E.G., THE DIFFERENT VIEWS EXPRESSED IN NIPPERT V. RICHMOND, 327 U.S.
416; SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761; MCLEOD V. DILWORTH
CO., 322 U.S. 327; NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292; AND
THE OPINIONS IN HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652.  AND
COMPARE AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459, WITH ADAMS MFG.
CO. V. STOREN, 304 U.S. 307. 

FN19  SEE NOTE 11 AND TEXT. 

FN20  CF., E.G., SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303
U.S. 177; WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250;
MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33; NELSON V. SEARS, ROEBUCK
& CO., 312 U.S. 359; CALIFORNIA V. THOMPSON, 313 U.S. 109; DUCKWORTH V.
ARKANSAS, 314 U.S. 390; UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202,
209 FF. 

FN21  CF. NIPPERT V. RICHMOND, 327 U.S. 416, 424, 431, NOTES 9 AND
23, AND AUTHORITIES CITED. 

FN22  SEE NOTE 3, AND COMPARE:  "...  STATE LAWS ARE NOT INVALID
UNDER THE COMMERCE CLAUSE UNLESS THEY ACTUALLY DISCRIMINATE AGAINST
INTERSTATE COMMERCE OR CONFLICT WITH A REGULATION ENACTED BY
CONGRESS."  GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S. 434, DISSENTING
OPINION AT 446. 

"...  EXCEPT FOR STATE ACTS DESIGNED TO IMPOSE DISCRIMINATORY BURDENS
ON INTERSTATE COMMERCE BECAUSE IT IS INTERSTATE - CONGRESS ALONE MUST
'DETERMINE HOW FAR (INTERSTATE COMMERCE)  ... SHALL BE FREE AND
UNTRAMMELLED, HOW FAR IT SHALL BE BURDENED BY DUTIES AND IMPOSTS, AND
HOW FAR IT SHALL BE PROHIBITED.'"  ID. AT 455. 

SEE ALSO, FOR ESSENTIALLY THE SAME POSITION, ADAMS MFG. CO. V.
STOREN, 304 U.S. 307, DISSENTING OPINION; SOUTHERN PACIFIC CO. V.
ARIZONA, 325 U.S. 761, DISSENTING OPINION AT 795. 

FN23  SEE NOTE 18. 

FN24  THUS, FOR INSTANCE, THE LIMITATIONS UPON THE LENGTH OF TRAINS
IMPOSED BY THE ARIZONA TRAIN LIMIT LAW, AND HELD TO BE IN VIOLATION OF
THE COMMERCE CLAUSE IN SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761,
WOULD BE BEYOND THE POWER OF CONGRESS, PERHAPS ALSO OF CONGRESS AND THE
STATES ACTING TOGETHER, TO IMPOSE; AND ON COMMERCE CLAUSE GROUNDS, THUS
NULLIFYING THE VERY POWER CONFERRED IN ORDER TO REGULATE SUCH MATTERS. 
THE ARGUMENT IS REMINISCENT OF THAT OF MR. JUSTICE MCLEAN IN THE SECOND
WHEELING BRIDGE CASE, CF. NOTE 34. 

FN25  CF. NOTE 11 AND TEXT. 

FN26  SEE THE ARGUMENT FOR THE PLAINTIFF IN ERROR IN PAUL V.
VIRGINIA, 8 WALL.  168, 172, 173, AS A CLASSIC INSTANCE. 

FN27  CF. NOTE 18.  SEE ALSO THE DISCUSSIONS CITED IN NOTE 7. 

FN28  LEGISLATION WHICH, TYPICALLY, HAS PRESENTED THE PROBLEM IS
FOUND IN A VARIETY OF MEASURES, OF WHICH THE WILSON ACT, 26 STAT. 313,
IS THE PROTOTYPE.  EARLIER LEGISLATION PRESENTING THE DIFFICULTY WAS
THAT INVOLVED IN THE SECOND OF THE WHEELING BRIDGE CASES, PENNSYLVANIA
V. WHEELING & BELMONT BRIDGE CO., 18 HOW.  421.  SEE NOTE 43 FOR
FURTHER CITATIONS. 

FN29  PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., 13 HOW.  518,
WITH WHICH COMPARE PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., 18
HOW.  421, AND THE CLINTON BRIDGE, 10 WALL.  454; LEISY V. HARDIN, 135
U.S. 100, WITH WHICH COMPARE IN RE RAHRER, 140 U.S. 545; BOWMAN V.
CHICAGO & NORTHWESTERN R. CO., 125 U.S. 465, WITH WHICH COMPARE CLARK
DISTILLING CO. V. WESTERN MARYLAND R. CO., 242 U.S. 311. 

FN30  SEE, E.G., RIBBLE, AT 62, 106, AND OTHER MATERIALS CITED ABOVE
IN NOTE 7. 

FN31  FOR THE MODERN RECORD IT IS INTERESTING TO NOTE THAT IN THE
FIRST BRIDGE CASE JUSTICE MCLEAN SPOKE FOR THE COURT, CHIEF JUSTICE
TANEY AND JUSTICE DANIEL DISSENTING IN SEPARATE OPINIONS, AND THE SAME
DIVISION PREVAILED IN THE FURTHER OPINIONS FILED UPON CONSIDERATION OF
THE MASTER'S REPORT AND ENTRY OF THE DECREE.  IN THE SECOND BRIDGE CASE
JUSTICE NELSON SPOKE FOR THE COURT, WITH JUSTICES MCLEAN, GRIER, WAYNE
AND DANIEL EACH FILING SEPARATE OPINIONS DISSENTING ON ONE OR MORE OF
THE ISSUES PRESENTED. 

FN32  THUS, IN SOME INSTANCES CONCEIVABLY THE REVERSAL MIGHT BE
RATIONALIZED AS ONLY ONE OF FACTUAL JUDGMENT, MADE IN DEFERENCE TO THE
CONTRARY FINDING OF LIKE CHARACTER MADE BY A BODY BETTER ABLE TO MAKE
SUCH A DETERMINATION.  MOREOVER, CONGRESS' SUPPORTING ACTION DEPRIVES
THE COURT'S ADVERSE VIEW CONCERNING STATE LEGISLATION OF ANY STRENGTH
WHICH MAY HAVE BEEN DERIVED FROM THE INFERENCE THAT CONGRESS, BY ITS
SILENCE, HAD IMPLIEDLY FORBIDDEN IT.  HENCE INSOFAR AS ITS JUDGMENT MAY
BE TAKEN, NOT AS CONCLUSIVE, BUT AS BEING ENTITLED TO DEFERENCE HERE ON
QUESTIONS RELATING TO ITS POWER (AND HISTORICALLY THE SCOPE OF THAT
DEFERENCE HAS BEEN GREAT, CF. NOTE 11), CONGRESS' EXPLICIT REPUDIATION
OF THE ATTITUDE INFERENTIALLY ATTRIBUTED TO IT FROM ITS SILENCE,
COMPELS REVERSAL OF THE COURT'S EARLIER PRONOUNCED VIEW. 

FN33  IN THE FIRST WHEELING BRIDGE CASE THE COURT ITSELF MADE THE
FINDING, UPON EVIDENCE TAKEN BY A MASTER, THAT THE BRIDGE IN FACT
OBSTRUCTED NAVIGATION, TO WHICH IT ADDED THE LEGAL CONCLUSION THAT IT
WAS A PUBLIC NUISANCE, AND WENT ON TO SPECIFY THE HEIGHT TO WHICH IT
MUST BE RAISED TO AVOID THIS EFFECT.  NOT ONLY THIS FINDING OF FACT,
THEREFORE, BUT ALSO THE LEGAL CONCLUSION DRAWN FROM IT WAS, IN EFFECT,
OVERTURNED BY THE ACT OF CONGRESS.  SEE NOTE 34.  THE FINDING OF
OBSTRUCTION IN FACT DEPENDED IN NO SENSE UPON PREVIOUS DETERMINATION BY
CONGRESS.  BUT THE COURT FOUND IN CONGRESS' PRIOR LEGISLATION A POLICY
OF FREEDOM FOR NAVIGATION WHICH IT APPLIED TO OUTLAW THE BRIDGE. 

FN34  SEE NOTE 33.  "SO FAR, THEREFORE, AS THIS BRIDGE CREATED AN
OBSTRUCTION TO THE FREE NAVIGATION OF THE RIVER, IN VIEW OF THE
PREVIOUS ACTS OF CONGRESS, THEY ARE TO BE REGARDED AS MODIFIED BY THIS
SUBSEQUENT LEGISLATION; AND, ALTHOUGH IT STILL MAY BE AN OBSTRUCTION IN
FACT, IS NOT SO IN THE CONTEMPLATION OF LAW....  THE REGULATION OF
COMMERCE INCLUDES INTERCOURSE AND NAVIGATION, AND, OF COURSE, THE POWER
TO DETERMINE WHAT SHALL OR SHALL NOT BE DEEMED IN JUDGMENT OF LAW AN
OBSTRUCTION TO NAVIGATION  ..."  MR. JUSTICE NELSON, SPEAKING FOR THE
COURT, IN THE SECOND WHEELING BRIDGE CASE, 18 HOW.  421, 430, 431. 

COMPARE THE DISSENTING OPINION OF MR. JUSTICE MCLEAN, WHO WROTE FOR
THE MAJORITY IN THE FIRST WHEELING BRIDGE CASE, GOING NOT ONLY ON THE
GROUND, AMONG OTHERS, THAT THE ACT OF CONGRESS INVADED THE JUDICIAL
FUNCTION, BUT ALSO THAT THE ACT, APART FROM THIS EFFECT, WAS
UNCONSTITUTIONAL:  "IT (CONGRESS) MAY, UNDER THIS POWER, DECLARE THAT
NO BRIDGE SHALL BE BUILT WHICH SHALL BE AN OBSTRUCTION TO THE USE OF A
NAVIGABLE WATER.  AND THIS, IT WOULD SEEM, IS AS FAR AS THE COMMERCIAL
POWER BY CONGRESS CAN BE EXERCISED."  18 HOW.  AT 442.  THUS WAS THE
GRANT OF AUTHORITY TO CONGRESS UPON WHICH HE RELIED IN THE FIRST
DECISION, IN PART, TO OUTLAW THE BRIDGE, CONVERTED INTO A LIMITATION. 
CF. TEXT PART II, AT NOTE 24 FF. 

FN35  CF. NOTE 29 AND TEXT.  AND SEE PART IV. 

FN36  WHETHER WITHIN OR WITHOUT THE "AFFECTATION" DOCTRINE.  CF.
UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533, 548,
AND AUTHORITIES CITED. 

IN MAKING THESE ASSUMPTIONS, HOWEVER, IT IS NOT IMPROPER TO NOTE THAT
THE RECORD, AS MADE IN THE STATE COURT, DOES NOT PURPORT TO DEAL
FACTUALLY WITH THE LATTER QUESTION AS A MATTER OF PROOF.  IT IS SIMPLY
ALLEGED THAT ALL OF PRUDENTIAL'S SOUTH CAROLINA BUSINESS IS DONE
INTERSTATE, AN ALLEGATION WHICH IS DENIED; AND THERE ARE SUPPORTING
ALLEGATIONS CONCERNING THE EXTENT OF THE BUSINESS AND MANNER OF
CONDUCTING IT. 

NOR IS THE CASE IN MUCH BETTER SHAPE FACTUALLY ON THE QUESTION OF
DISCRIMINATION.  WHILE THE BRIEFS INCLUDE TABLES OF FIGURES DESIGNED TO
SHOW THAT PRUDENTIAL PAYS MORE PROPORTIONATELY UNDER THE TAX THAN SOUTH
CAROLINA CORPORATIONS PAY UNDER OTHER TAXES LEVIED AGAINST THEM, CF.
NOTE 2, THESE FIGURES WERE NOT MADE PART OF THE RECORD IN THE STATE
COURT UNTIL THE PETITION FOR REHEARING WAS FILED, AND PRUDENTIAL HAS
INSISTED BOTH THERE AND HERE THAT THEY HAVE NO PROPER PLACE IN
CONSIDERATION OF THE QUESTIONS PRESENTED.  ITS POSITION IS THAT THE TAX
IS DISCRIMINATORY ON THE FACE OF THE STATUTE AND WITHOUT REFERENCE TO
OTHER TAXES SOUTH CAROLINA CORPORATIONS MAY PAY.  CF. NOTE 4. 

WE EXPRESS NO OPINION CONCERNING WHETHER SUCH A SHOWING, IN EITHER
RESPECT, WOULD BE SUFFICIENT TO REQUIRE DETERMINATION OF THE ISSUES TO
WHICH IT IS DIRECTED, TENDERED IN THE ABSENCE OF ACTION BY CONGRESS. 

FN37  THE REMAINDER OF THE STATUTE, INCLUDING A PROVISO TO SEC. 2(B),
RELATES TO APPLICABILITY OF THE SHERMAN ACT AND OTHER RELATED FEDERAL
STATUTES TO THE BUSINESS OF INSURANCE BEFORE AND AFTER JANUARY 1, 1948;
PROVIDES THAT THE MCCARRAN ACT SHALL NOT AFFECT IN ANY MANNER THE
APPLICATION TO THAT BUSINESS OF THE NATIONAL LABOR RELATIONS ACT, THE
FAIR LABOR STANDARDS ACT OR THE MERCHANT MARINE ACT OF 1920; EXTENDS
THE TERM "STATE" AS USED IN THE ACT TO INCLUDE SPECIFIED TERRITORIES
AND THE DISTRICT OF COLUMBIA; AND PROVIDES FOR SEVERABILITY. 

FN38  SEE NOTE 37. 

FN39  THERE IS, OF COURSE, NO CONSTITUTIONAL REQUIREMENT THAT STATE
TAXES MUST BE UNIFORM, IN THE SENSE OF THAT REQUIREMENT AS LAID UPON
THE FEDERAL TAXING POWER BY THE FIRST CLAUSE OF ARTICLE I, SEC. 8.  NOR
HAS IT EVER BEEN HELD THAT SUCH A REQUIREMENT IS MADE BY THE COMMERCE
CLAUSE OR ANY OTHER CONSTITUTIONAL PROVISION.  THIS IS A DIFFERENT
THING ENTIRELY FROM THE STRICTURES AGAINST DISCRIMINATION WITHIN OR BY
A STATE LAID UNDER THE EQUAL PROTECTION AND COMMERCE CLAUSES.    THE
MCCARRAN ACT IS, IN EFFECT, A DETERMINATION BY CONGRESS THAT THE
BUSINESS OF INSURANCE, THOUGH DONE IN INTERSTATE COMMERCE, IS NOT OF
SUCH A CHARACTER AS TO REQUIRE UNIFORMITY OF TREATMENT WITHIN THE
DISTINCTION TAKEN IN THE DOCTRINE OF COOLEY V. BOARD OF WARDENS, 12
HOW.  299, EXCEPT AS OTHERWISE EXPRESSLY DECLARED. 

FN40  AS OF THE EFFECTIVE DATE OF THE MCCARRAN ACT, SIXTEEN STATES
HAD IMPOSED ON "FOREIGN" LIFE INSURANCE COMPANIES TAXES SUBSTANTIALLY
SIMILAR TO THE SOUTH CAROLINA TAX IN ISSUE.  ALA. CODE (1940) TIT. 51,
SECS. 816, 819; FLA. STAT. (1941) SEC. 205.43(1), (6); ILL. REV. STAT.
(1943) C. 73, SEC. 1021; IND. STAT. ANN. (BURNS, 1940) SEC. 39-4802;
KAN. GEN. STAT. ANN. (CORRICK, 1935) SEC. 40-252; KY. REV. STAT. (1944)
SEC. 136.330; LA. GEN. STAT. (DART, 1939) SEC. 8369; MICH. COMP. LAWS
(1929) SEC. 12387; MO. REV. STAT. (1939) SEC. 6094; NEB. REV. STAT.
(1943) SEC. 77-902; N.M. STAT. ANN. (1941) SEC. 60-401; N.D. COMP. LAWS
(1913) SEC. 4924; OHIO CODE ANN. (THROCKMORTON, 1940) SEC. 5433; PA.
STAT. ANN. (PURDON, 1930) TIT. 72, SEC. 2261; S.C. CODE (1942) SECS.
7948, 7949; TEX. CIV. STAT. (VERNON, 1925) ART. 4769. 

WE EXPRESS NO OPINION CONCERNING THE VALIDITY OF ANY FEATURE OF THESE
STATUTES NOT SUBSTANTIALLY IDENTICAL WITH THOSE OF THE SOUTH CAROLINA
TAX DEALT WITH HEREIN. 

FN41  PRUDENTIAL WAS FIRST AUTHORIZED TO DO BUSINESS IN SOUTH
CAROLINA IN 1897 AND SINCE THAT TIME IT HAS RECEIVED ANNUAL RENEWALS OF
ITS LICENSE.  AS TO THE PRESENT SCOPE OF ITS BUSINESS IN SOUTH CAROLINA
AND IN ALL THE STATES, SEE NOTE 15. 

FN42  CF. ASHTON V. CAMERON COUNTY DISTRICT, 298 U.S. 513, WHICH MAY
BE SAID IN EFFECT TO HAVE BEEN OVERRULED BY UNITED STATES V. BEKINS,
304 U.S. 27.  SEE JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941)
240-241. 

FN43  SEE CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495; STEWARD
MACHINE CO. V. DAVIS, 301 U.S. 548; KENTUCKY WHIP & COLLAR CO. V.
ILLINOIS CENTRAL R. CO., 299 U.S. 334; CLARK DISTILLING CO. V. WESTERN
MARYLAND R. CO., 242 U.S. 311; WHITFIELD V. OHIO, 297 U.S. 431; IN RE
RAHRER, 140 U.S. 545; PERKINS V. PENNSYLVANIA, 314 U.S. 586; STANDARD
DREDGING CO. V. MURPHY, 319 U.S. 306, 308; INTERNATIONAL SHOE CO. V.
WASHINGTON, 326 U.S. 310, 315; CF. PARKER V. RICHARD, 250 U.S. 235, 238
239.  SEE GENERALLY KOENIG, FEDERAL AND STATE COOPERATION UNDER THE
CONSTITUTION (1938) 36 MICH. L. REV. 752. 

FN44  NORTH AMERICAN CO. V. SECURITIES & EXCHANGE COMMISSION, 327
U.S. 686, 704-705; UNITED STATES V. DARBY, 312 U.S. 100, 114-115;
GIBBONS V. OGDEN, 9 WHEAT.  1, 196.  FOR EXAMPLE, THE PROVISIONS OF
ARTICLE I, SEC. 9, FORBIDDING THE GIVING OF PREFERENCES "BY ANY
REGULATION OF COMMERCE OR REVENUE TO THE PORTS OF ONE STATE OVER THOSE
OF ANOTHER"; AND COMMANDING THAT "NO TAX OR DUTY SHALL BE LAID ON
ARTICLES EXPORTED FROM ANY STATE," HELD APPLICABLE ONLY TO FOREIGN
COMMERCE IN DOOLEY V. UNITED STATES, 183 U.S. 151. 

BUT COMPARE THE FURTHER PROVISION OF ARTICLE I, SEC. 10, EMPOWERING
CONGRESS TO CONSENT TO LAYING OF DUTIES OR IMPOSTS ON EXPORTS BY THE
STATES.  SEE ALSO NOTE 47. 

FN45  E.G., REID V. COLORADO, 187 U.S. 137; CHAMPION V. AMES, 188
U.S. 321; HIPOLITE EGG CO. V. UNITED STATES, 220 U.S. 45; HOKE V.
UNITED STATES, 227 U.S. 308; UNITED STATES V. DARBY, 312 U.S. 100,
OVERRULING HAMMER V. DAGENHART, 247 U.S. 251. 

FN46  SEE CASES CITED IN NOTES 29 AND 43. 

FN47  IT IS PERHAPS IMPOSSIBLE TO POINT WITH CERTAINTY TO ANY SUCH
EXPLICIT LIMITATION AMONG THE VARIOUS COMMERCE CLAUSES OF THE
CONSTITUTION, FOR DECISION IN THE APPLICATION OF SUCH PROVISIONS TO
SUCH A COMBINED EXERCISE OF POWERS IS SPARSE.  SEE, HOWEVER, THE
DISCUSSION IN PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., 18 HOW. 
421, 433 ET SEQ., RELATING TO THE CLAUSE OF ARTICLE I, SEC. 9,
PROVIDING:  "NO PREFERENCE SHALL BE GIVEN BY ANY REGULATION OF COMMERCE
OR REVENUE TO THE PORTS OF ONE STATE OVER THOSE OF ANOTHER:  NOR SHALL
VESSELS BOUND TO, OR FROM, ONE STATE, BE OBLIGED TO ENTER, CLEAR OR PAY
DUTIES IN ANOTHER." 

THERE CAN BE NO DOUBT THAT THE COMBINED EXERCISE OF STATE AND FEDERAL
AUTHORITY IS LIMITED, TO SOME BUT LARGELY UNDEFINED EXTENT, BY OTHER
CONSTITUTIONAL PROHIBITIONS OR THE COMBINED EFFECTS OF MORE THAN ONE. 
CF. TEXT HEREIN AT NOTE 49 ET SEQ. BUT APART FROM THE PROVISION OF
ARTICLE I, SEC. 9, ABOVE QUOTED AS A POSSIBLE EXCEPTION, THE SPECIFIC
LIMITATIONS PLACED UPON THE COMMERCE POWER OR STATE POWER IN RELATION
TO COMMERCE EXPRESSLY PROVIDE FOR JOINT ACTION TO BE EFFECTIVE.  THUS,
THIS IS TRUE WITH REFERENCE TO LAYING OF DUTIES ON EXPORTS BY THE
STATES WITH THE CONSENT OF CONGRESS, ART. I, SEC. 10, NOTWITHSTANDING
THE PROHIBITION OF SUCH ACTION BY CONGRESSIONAL ACTION ALONE, ART. I,
SEC. 9, AND OF COURSE BY STATE ACTION ALONE.  ART. I, SEC. 10.  AND
NOTE THE FURTHER PROVISION THAT:  "NO STATE SHALL, WITHOUT THE CONSENT
OF CONGRESS, LAY ANY DUTY OF TONNAGE," AS TO WHICH SEE ALSO NOTE 17
ABOVE. 

IT WAS THUS EXPRESSLY CONTEMPLATED, IN SOME INSTANCES, THAT THE
COMBINED EXERCISE OF THE POWERS OF CONGRESS AND THE STATES SHOULD BE
FREE FROM RESTRICTIONS EXPRESSLY APPLICABLE TO EACH WHEN EXERTED IN
ISOLATION.  IT IS TRUE THAT SOME OF THESE PROVISIONS HAVE BEEN HELD
APPLICABLE ONLY TO FOREIGN COMMERCE, E.G., THE PROHIBITION OF ARTICLE
I, SEC. 10, AGAINST LEVY OF DUTIES ON IMPORTS OR EXPORTS WITHOUT
CONGRESS' CONSENT.  WOODRUFF V. PARHAM, 8 WALL.  123; AMERICAN STEEL &
WIRE CO. V. SPEED, 192 U.S. 500, 519, ET SEQ.; BUT SEE BROWN V.
MARYLAND, 12 WHEAT.  419.  BUT OTHERS APPLY TO COASTWISE TRADE, INDEED
TO TRADE BETWEEN TOWNS IN THE SAME STATE, IN OTHER WORDS TO INTRASTATE
COMMERCE.  STATE TONNAGE TAX CASES, 12 WALL.  204, 219; AND SEE
PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., SUPRA; LOUISIANA PUBLIC
SERVICE COMM'N V. TEXAS & N.O.R. CO., 284 U.S. 125; CF. WILLIAMS V.
UNITED STATES, 255 U.S. 336; AND SEE ALSO UNITED STATES V. THE WILLIAM,
28 FED. CAS. NO. 16,700. 

ALL THESE PROVISIONS ARE INTIMATELY AND EXPRESSLY RELATED TO THE
COMMERCE POWER.  NOTWITHSTANDING THEIR DIVERSITIES, IN APPLICATION TO
INTERSTATE AND FOREIGN COMMERCE OR BOTH, AND ALSO TO FEDERAL AND STATE
POWER OR THEIR COMBINED OPERATION, NO CONCLUSION CAN BE DRAWN FROM THEM
THAT OUR CONSTITUTIONAL POLICY WAS, OR IS, TO GIVE CONGRESS AND THE
STATES ACTING TOGETHER BROAD POWERS, IN SOME INSTANCES DENIED TO EACH
ACTING ALONE, IN RELATION TO FOREIGN COMMERCE, BUT TO DENY SUCH
AUTHORITY ALTOGETHER IN REFERENCE TO INTERSTATE COMMERCE.  INDEED THE
OPPOSITE CONCLUSION IS CLEARLY INDICATED, BOTH BY VIRTUE OF EXPRESS
PROVISION WHERE APPLICABLE AND BY STRONG INFERENCE WHERE NOT EXPRESSLY
FORBIDDEN. 

FN48  THE RULING IS NOT NEW OR ONLY RECENT.  "WE HAVE ALREADY SAID,
AND THE PRINCIPLE IS UNDOUBTED, THAT THE ACT OF THE LEGISLATURE OF
VIRGINIA CONFERRED FULL AUTHORITY TO ERECT AND MAINTAIN THE BRIDGE,
SUBJECT TO THE EXERCISE OF THE POWER OF CONGRESS TO REGULATE THE
NAVIGATION OF THE RIVER.  THAT BODY HAVING IN THE EXERCISE OF THIS
POWER, REGULATED THE NAVIGATION CONSISTENT WITH ITS PRESERVATION AND
CONTINUATION, THE AUTHORITY TO MAINTAIN IT WOULD SEEM TO BE COMPLETE. 
THAT AUTHORITY COMBINES THE CONCURRENT POWERS OF BOTH GOVERNMENTS,
STATE AND FEDERAL, WHICH, IF NOT SUFFICIENT, CERTAINLY NONE CAN BE
FOUND IN OUR SYSTEM OF GOVERNMENT."  PENNSYLVANIA V. WHEELING & BELMONT
BRIDGE CO., 18 HOW.  421, 430.  COMPARE THIS WITH MR. JUSTICE MCLEAN'S
DISSENTING VIEW, NOTE 34 ABOVE. 

FN49  THE CONTENTIONS ARE STATED IN APPELLANT'S BRIEF AS FOLLOWS:
"IF IT BE ASSUMED THAT THE MCCARRAN-FERGUSON ACT IS AN ADOPTION BY
CONGRESS OF LEGISLATION OF THE STATES, THEN THE ACT IS UNCONSTITUTIONAL
(1) AS A VIOLATION OF THE DUE PROCESS CLAUSE OF FIFTH AMENDMENT TO THE
CONSTITUTION, (2) AS A VIOLATION OF ARTICLE I, SECTION 8, CLAUSE 1 OF
THE CONSTITUTION WHICH REQUIRES THAT EXCISES SHALL BE UNIFORM
THROUGHOUT THE UNITED STATES IN THE EXERCISE BY CONGRESS OF ITS TAXING
POWER, (3) AS A VIOLATION OF ARTICLE I, SECTION 1 OF THE CONSTITUTION
WHICH REQUIRES LEGISLATION TO BE ENACTED BY CONGRESS, AND (4) AS A
VIOLATION OF THE STATES' POWER TO TAX FOR PURPOSES OF RAISING REVENUE
FOR THEIR OWN USE, WHICH POWER IS VESTED EXCLUSIVELY IN THE STATES." 

FN50  "...  IT HAS NEVER BEEN HELD THAT A STATE MAY NOT EXACT FROM A
FOREIGN CORPORATION AS A CONDITION TO ADMISSION TO DO BUSINESS THE
PAYMENT OF A TAX MEASURED BY THE BUSINESS DONE WITHIN ITS BORDERS." 
LINCOLN NATIONAL LIFE INS. CO. V. READ, 325 U.S. 673, 677.  SEE DUCAT
V. CHICAGO, 10 WALL.  410; PHILADELPHIA FIRE ASSN. V. NEW YORK, 119
U.S. 110; HANOVER FIRE INS. CO. V. HARDING, 272 U.S. 494; CONTINENTAL
ASSURANCE CO. V. TENNESSEE, 311 U.S. 5.  SEE DISCUSSION IN HENDERSON,
THE POSITION OF FOREIGN CORPORATIONS IN AMERICAN CONSTITUTIONAL LAW
(1918) 101 FF. 

FN51  THE RELATED CONTENTION THAT CONGRESS'"ADOPTION" OF SOUTH
CAROLINA'S STATUTE AMOUNTS TO AN UNCONSTITUTIONAL DELEGATION OF
CONGRESS' LEGISLATIVE POWER TO THE STATES OBVIOUSLY CONFUSES CONGRESS'
POWER TO LEGISLATE WITH ITS POWER TO CONSENT TO STATE LEGISLATION. 
THEY ARE NOT IDENTICAL, THOUGH EXERCISED IN THE SAME FORMAL MANNER. 
SEE CLARK DISTILLING CO. V. WESTERN MARYLAND R. CO., 242 U.S. 311,
327. 

FN52  "IT WOULD BE A SHOCKING THING, IF STATE AND FEDERAL GOVERNMENTS
ACTING TOGETHER WERE PREVENTED FROM ACHIEVING THE END DESIRED BY BOTH,
SIMPLY BECAUSE OF THE DIVISION OF POWER BETWEEN THEM."  RIBBLE, 211. 
AND SEE NOTE 48. 

FN53  CF. NOTE 47. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















ROBERTSON V. CALIFORNIA, 328 U.S. 440 


NO. 274.  ARGUED JANUARY 8, 9, 1946.  - DECIDED JUNE 3, 1946.  -
AFFIRMED 


FOR ANY PERSON, EXCEPT ONE LICENSED AS A "SURPLUS LINE BROKER," TO ACT
"AS AGENT FOR A NONADMITTED INSURER IN THE TRANSACTION OF INSURANCE
BUSINESS" WITHIN THE STATE.  SECTION 1642 PROVIDES THAT "A PERSON SHALL
NOT ACT AS AN INSURANCE AGENT, BROKER, OR SOLICITOR UNTIL A LICENSE IS
OBTAINED FROM THE COMMISSIONER, AUTHORIZING SUCH PERSON SO TO ACT." 
APPELLANT WAS CONVICTED IN A STATE COURT FOR VIOLATIONS OF SECS. 703(A)
AND 1642 COMMITTED SUBSEQUENTLY TO THE DECISION OF THIS COURT IN UNITED
STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533(HOLDING THAT
THE BUSINESS OF INSURANCE CONDUCTED ACROSS STATE LINES IS INTERSTATE
COMMERCE), BUT PRIOR TO THE ENACTMENT OF THE ACT OF CONGRESS OF MARCH
9, 1945, 59 STAT. 33(AUTHORIZING STATE TAXATION AND REGULATION OF THE
BUSINESS OF INSURANCE).  THE EVIDENCE SHOWED THAT APPELLANT, WITHOUT A
LICENSE OF ANY KIND, HAD ACTED WITHIN THE STATE AS AGENT OF A
NONADMITTED FOREIGN INSURER CONDUCTING A MUTUAL BENEFIT TYPE OF
INSURANCE BUSINESS.  HELD: 

1.  SECTION 1642, CONSIDERED WITH OTHER REQUIREMENTS OF THE STATE
LAW, BEING DESIGNED AND REASONABLY ADAPTED TO PROTECT THE PUBLIC AND
APPLICABLE WITHOUT DISCRIMINATION TO AGENTS OF LOCAL AND FOREIGN
COMPANIES ACTING IN CALIFORNIA, WAS NOT IN VIOLATION OF THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION, SINCE IT NEITHER DISCRIMINATES
AGAINST NOR SUBSTANTIALLY OBSTRUCTS INTERSTATE COMMERCE.  CALIFORNIA V.
THOMPSON, 313 U.S. 109.  P. 447. 

2.  CONSIDERED APART FROM OTHER PROVISIONS OF THE CODE, THE
REQUIREMENTS FOR ISSUANCE OF A SURPLUS LINE BROKER'S LICENSE - THAT THE
COMMISSIONER SHALL FIND THE APPLICANT TO BE TRUSTWORTHY AND COMPETENT
TO TRANSACT AN INSURANCE BROKERAGE BUSINESS IN SUCH MANNER AS TO
SAFEGUARD THE INTEREST OF THE INSURED; PAYMENT OF A $50 FILING FEE; AND
POSTING OF A $5,000 FIDELITY BOND - WERE NOT IN VIOLATION OF THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  P. 450. 

3.  EVEN THOUGH THE CODE PROVISIONS REGULATING THE ADMISSION OF
FOREIGN INSURANCE COMPANIES TO DO BUSINESS WITHIN THE STATE, TOGETHER
WITH PROVISIONS REGULATING ACTIVITIES OF SURPLUS LINE BROKERS, OPERATED
TO FORBID EITHER FOREIGN OR DOMESTIC COMPANIES TO DO WITHIN THE STATE A
LIFE INSURANCE BUSINESS ON OTHER THAN A LEGAL RESERVE BASIS, EXCEPT AS
TO COMPANIES ENGAGED IN DOING SUCH BUSINESS THERE PRIOR TO JANUARY 1,
1940, NO UNCONSTITUTIONAL DISCRIMINATION AGAINST INTERSTATE COMMERCE
WAS INVOLVED, AND THE RESULT IS NOT PRECLUDED BY THE SOUTH-EASTERN
DECISION.  P. 455. 

(A)  THE CONDITIONS PRESCRIBED APPLY ALIKE TO DOMESTIC AND FOREIGN
CORPORATIONS.  P. 456. 

(B)  THE PROVISION DIFFERENTIATING BETWEEN COMPANIES ORGANIZED OR
ADMITTED TO DO BUSINESS WITHIN THE STATE PRIOR TO JANUARY 1, 1940, AND
OTHERS, DOES NOT INVOLVE ANY DISCRIMINATION AS BETWEEN DOMESTIC AND
FOREIGN OR INTERSTATE AND INTRASTATE INSURERS.  P. 456. 

(C)  THE DISTINCTION DOES NOT BECOME DISCRIMINATORY, IN ANY SENSE NOW
PERTINENT, MERELY BECAUSE THE PREEXISTING COMPANIES ARE ALLOWED TO
CONTINUE THEIR BUSINESS UNDER SOMEWHAT LESS BURDENSOME RESERVE
REQUIREMENTS THAN THOSE UNDER WHICH NEW COMPANIES ARE PERMITTED TO
ENTER.  P. 456. 

4.  FOR FAILURE TO MEET ITS RESERVE REQUIREMENTS, A STATE MAY EXCLUDE
FOREIGN INSURANCE COMPANIES, OR THEIR AGENTS, FROM DOING BUSINESS
WITHIN THE STATE.  P. 458. 

(A)  STATE REGULATION OF INTERSTATE BUSINESS DONE WITHIN THE STATE'S
BORDERS IS NOT RENDERED INVALID BY THE MERE FACT THAT THE REGULATION IS
IN FORM A "LICENSE."  P. 458. 

(B)  THE COMMERCE CLAUSE IS NOT A GUARANTY OF THE RIGHT TO IMPORT
INTO A STATE WHATEVER ONE MAY PLEASE, ABSENT A PROHIBITION BY CONGRESS,
REGARDLESS OF THE EFFECTS OF THE IMPORTATION UPON THE LOCAL COMMUNITY. 
P. 458. 

(C)  THE RESERVE REQUIREMENTS OF THE STATE CAN NOT BE DEEMED, EITHER
ON THE FACE OF THE STATUTE OR BY ANY SHOWING THAT HAS BEEN MADE IN THIS
CASE, TO BE EXCESSIVE FOR THE PROTECTION OF THE LOCAL INTEREST
AFFECTED; NOR DESIGNED OR EFFECTIVE EITHER TO DISCRIMINATE AGAINST
FOREIGN OR INTERSTATE INSURERS OR TO FORBID OR EXCLUDE THEIR
ACTIVITIES.  P. 459. 

5.  APPELLANT'S OBJECTIONS FOUNDED ON THE PROVISIONS RELATING TO THE
PLACING OF SURPLUS LINE INSURANCE WITH NONADMITTED INSURERS LACK MERIT,
IN VIEW OF THE POWER OF THE STATE, THROUGH ITS RESERVE REQUIREMENTS FOR
ADMISSION AND RELATED PROHIBITIONS, TO FORBID ENTIRELY THE PLACING OF
INSURANCE OF THE SORT HERE INVOLVED, WHETHER WITH DOMESTIC, ADMITTED OR
NONADMITTED COMPANIES.  P. 460. 

6.  THE REQUIREMENTS OF THE STATE LAW DO NOT OPERATE TO REGULATE
ACTIVITIES OF THE APPELLANT OR THE FOREIGN INSURER BEYOND THE BORDERS
OF THE STATE, AND DO NOT ON THIS SCORE VIOLATE THE DUE PROCESS OR EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 461. 

7.  THE RESULT IN THIS CASE IS REACHED INDEPENDENTLY OF THE ACT OF
MARCH 9, 1945; WHEREFORE NO QUESTION AS TO POSSIBLE EX POST FACTO
OPERATION OF THAT ACT IS INVOLVED.  P. 461. 

ROBERTSON V. CALIFORNIA. 

APPEAL FROM THE SUPERIOR COURT OF VENTURA COUNTY, CALIFORNIA. 

APPELLANT WAS CONVICTED IN A STATE COURT OF VIOLATING CERTAIN
PROVISIONS OF THE CALIFORNIA INSURANCE CODE, WHICH HE CHALLENGED AS
BEING CONTRARY TO THE COMMERCE CLAUSE AND THE FOURTEENTH AMENDMENT. 
THE CONVICTION WAS AFFIRMED BY AN INTERMEDIATE STATE COURT, WHICH WAS
THE HIGHEST STATE COURT TO WHICH AN APPEAL COULD BE TAKEN.  INS. L.J.,
MAY, 1945, P. 273.  APPELLANT APPEALED TO THIS COURT.  AFFIRMED, P.
462. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE DIFFERS FROM PRUDENTIAL INSURANCE CO. V. BENJAMIN, ANTE, P.
408, IN THREE RESPECTS.  IT IS A CRIMINAL CAUSE; THE STATUTES INVOLVED
REGULATE, RATHER THAN SIMPLY TAX, THE BUSINESS OF INSURANCE; AND
APPELLANT'S ACTS HELD TO VIOLATE THEM WERE DONE BEFORE THE MCCARRAN
ACT'S  FN1 EFFECTIVE DATE. 

APPELLANT WAS CONVICTED IN A STATE COURT FOR VIOLATING SECS. 703(A)
AND 1642 OF THE CALIFORNIA INSURANCE CODE AND THE CONVICTION WAS
SUSTAINED ON APPEAL TO THE SUPERIOR COURT OF VENTURA COUNTY.  FN2
APPELLANT NOW URGES HERE PRIMARILY THAT THE APPLICATION WHICH HAS BEEN
MADE OF THOSE SECTIONS IS A REGULATION OF INTERSTATE COMMERCE FORBIDDEN
BY THE COMMERCE CLAUSE OF THE CONSTITUTION, ARTICLE I, SEC. 8, IN VIEW
OF UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S. 533.  HE
ALSO PUTS FORWARD DUE PROCESS AND EQUAL PROTECTION ARGUMENTS, RESTING
ON HIS CONCEPTION OF THE APPLICABILITY OF THOSE PROVISIONS OF THE
FOURTEENTH AMENDMENT.  FN3 

THE CALIFORNIA INSURANCE CODE PROVISIONS ARE AS FOLLOWS: 

"703.  EXCEPT WHEN PERFORMED BY A SURPLUS LINE BROKER, THE FOLLOWING
ACTS ARE MISDEMEANORS WHEN DONE IN THIS STATE: 

"(A)  ACTING AS AGENT FOR A NONADMITTED INSURER IN THE TRANSACTION OF
INSURANCE BUSINESS IN THIS STATE." 

"1642.  A PERSON SHALL NOT ACT AS AN INSURANCE AGENT, BROKER, OR
SOLICITOR UNTIL A LICENSE IS OBTAINED FROM THE COMMISSIONER,
AUTHORIZING SUCH PERSON SO TO ACT."  FN4 

THE COMPLAINT CHARGED IN TWO COUNTS THAT APPELLANT HAD (1) ACTED
WITHOUT A LICENSE AS AN AGENT FOR A NON-ADMITTED INSURER IN SOLICITING
AND SELLING A POLICY CONTRARY TO SEC. 703(A), AND (2) SOLICITED AND
SOLD A POLICY OF INSURANCE WITHOUT BEING LICENSED AS REQUIRED BY SEC.
1642. 

THE EVIDENCE, WHICH IS UNDISPUTED, DISCLOSED THE FOLLOWING FACTS. 
THE FIRST NATIONAL BENEFIT SOCIETY IS AN ARIZONA CORPORATION,
CONDUCTING FROM PHOENIX A MUTUAL BENEFIT TYPE OF INSURANCE BUSINESS. 
ITS METHOD OF OPERATION MUST BE INFERRED FROM THE FACTS OF RECORD, IN
THE ABSENCE OF OTHER EVIDENCE.  ONE O'LEIN, THEN AN ELDERLY RESIDENT OF
VENTURA, CALIFORNIA, HAD DIFFICULTY IN SECURING INSURANCE ON ACCOUNT OF
HIS AGE.  PRIOR TO AUGUST 28, 1944, HE HAD LEARNED OF THE SOCIETY'S
"GOLD SEAL" POLICY, BY RADIO AND THROUGH "LITERATURE."  THIS APPARENTLY
WAS MAILED FROM THE HOME OFFICE AND INCLUDED A PRINTED FORM OF RETURN
POSTAL CARD MARKED, PRESUMABLY PURSUANT TO POSTAL PERMIT, "POSTAGE WILL
BE PAID BY ADDRESSEE," THE SOCIETY.  O'LEIN FILLED IN AND RETURNED THE
CARD TO THE SOCIETY IN PHOENIX, ASKING IT TO "SEND ME, WITHOUT
OBLIGATION, DETAILS OF 'GOLD SEAL' POLICIES."  A FEW DAYS LATER, ON
AUGUST 28, 1944, APPELLANT CALLED AT O'LEIN'S HOME WITH THE CARD,
STATING HE REPRESENTED THE FIRST NATIONAL BENEFIT SOCIETY.  THEREUPON
HE EXPLAINED TO O'LEIN THE TERMS OF THE POLICY, ITS BENEFITS, AND
COSTS, SOLICITING AND PERSUADING THE PROSPECT TO TAKE OUT A POLICY FOR
HIMSELF AND ONE ALSO FOR HIS WIFE.  NO MEDICAL EXAMINATION WAS
REQUIRED.  APPELLANT FILLED IN THE APPLICATION FORMS, PROCURED THE
SIGNATURES, ACCEPTED FROM O'LEIN A CHECK MADE OUT IN APPELLANT'S NAME
IN PAYMENT OF THE FIRST QUARTERLY PREMIUMS, GAVE RECEIPTS, LATER CASHED
THE CHECK AT A LOCAL BANK, AND RECEIVED THE PROCEEDS.  A FEW DAYS LATER
THE O'LEINS RECEIVED POLICIES BY MAIL FROM THE SOCIETY'S OFFICE IN
PHOENIX. 

THE EVIDENCE FURTHER SHOWED THAT THE SOCIETY WAS NOT ADMITTED TO DO
BUSINESS IN CALIFORNIA AND THAT APPELLANT HAD NO LICENSE OF ANY KIND TO
ACT AS AN INSURANCE AGENT, BROKER OR SOLICITOR THERE. 

WE MAY DEAL FIRST EXCLUSIVELY WITH THE OBJECTIONS FOUNDED ON THE
COMMERCE CLAUSE, SINCE EACH OF THE OTHERS WOULD BE OBVIOUSLY WITHOUT
MERIT BUT FOR THE SUPPOSED EFFECTS OF THE SOUTH-EASTERN DECISION  FN5
NOT ONLY IN RELATION TO THE PROHIBITORY CONSEQUENCES OF THAT CLAUSE BUT
ALSO, APPARENTLY, TO RESURRECT OTHER LIMITATIONS UPON STATE POWER LONG
SINCE SETTLED ADVERSELY TO SUCH CLAIMS IN REFERENCE TO THE BUSINESS OF
INSURANCE.  FN6

     I. 

LITTLE NEED BE SAID IN RELATION TO THE GENERAL LICENSE REQUIREMENT OF
SEC. 1642, EXCEPT TO STATE MORE FULLY ITS EFFECTS BY VIRTUE OF ITS
RELATION TO OTHER PROVISIONS OF THE CALIFORNIA INSURANCE CODE, WHICH
PRESCRIBE THE CONDITIONS FOR SECURING THE LICENSE.  THOSE REQUIREMENTS,
IN SUMMARY, ARE THAT AN APPLICATION MUST BE MADE UPON A PRESCRIBED FORM
SETTING FORTH THE KINDS OF INSURANCE THE APPLICANT DESIRES TO TRANSACT
(SEC. 1643); HE MUST BE A CITIZEN OF THE UNITED STATES OR ONE WHO HAS
APPLIED FOR CITIZENSHIP; AND MUST HAVE ATTAINED HIS MAJORITY (SEC.
1648.5); HE MUST PASS A WRITTEN EXAMINATION AS TO HIS QUALIFICATIONS
(SEC. 1674) AND PAY TWO FEES, ONE A FILING FEE OF $4, THE OTHER AN
EXAMINATION FEE OF $5(SEC.  1678).  ON HIS FULFILLING THESE CONDITIONS
THE LICENSE IS ISSUED IF THE STATE COMMISSIONER OF INSURANCE IS
SATISFIED THAT HE IS QUALIFIED AND INTENDS IN GOOD FAITH TO CARRY ON
THE BUSINESS (SEC. 1649). 

OF THE CODE IS "TO PROTECT THE PUBLIC BY REQUIRING AND MAINTAINING
PROFESSIONAL STANDARDS OF CONDUCT ON THE PART OF ALL INSURANCE AGENTS
AND INSURANCE BROKERS ACTING AS SUCH WITHIN THIS STATE."  THE STATUTORY
REQUIREMENTS APPLY TO ALL AGENTS, WITHOUT DISCRIMINATION, WHETHER THEY
REPRESENT CALIFORNIA OR OUT-OF-STATE INSURANCE COMPANIES AND WHETHER
THE BUSINESS DONE IS INTERSTATE OR LOCAL IN CHARACTER.  THEY APPLY ONLY
TO AGENTS ACTING IN CALIFORNIA, NOT TO ACTS DONE OUTSIDE THE STATE. 

APPELLANT HAS NOT SOUGHT TO OBTAIN A LICENSE UNDER THE CODE
PROVISIONS, HAS NOT BEEN DENIED ONE, AND HAS NOT ATTACKED ANY
PARTICULAR REQUIREMENT.  HIS CHARGE IS WHOLESALE, NOT PARTICULAR.  IT
IS, IN EFFECT, THAT SINCE THE ENTIRE SERIES OF ACTS DONE BY HIM WAS
DIRECTED TO THE CONCLUSION OF AN INTERSTATE TRANSACTION, WITHIN THE
SOUTH-EASTERN RULING, THOSE ACTS THOUGH TAKING PLACE ALTOGETHER WITHIN
CALIFORNIA WERE INSEPARABLY A PART OF THE INTERSTATE TRANSACTION AND
THEREFORE BEYOND REACH OF THE STATE'S LICENSING OR REGULATORY POWER. 
THE CONTENTION APPEARS TO CONTEMPLATE NOT ONLY THAT APPELLANT'S ACTS
WERE INTERSTATE COMMERCE, BUT ALSO THAT THE STATE CANNOT IMPOSE ANY
LICENSING REQUIREMENT UPON THEM OR, IT WOULD SEEM, UPON ANY PHASE OF
CONDUCTING AN INTERSTATE INSURANCE BUSINESS THROUGH AGENTS ACTING IN
PERSON. 

TO STATE THE ARGUMENT IN THIS WAY IS IN EFFECT TO ANSWER IT.  WE
ACCEPT THE REGULATION FOR WHAT IT PURPORTS TO BE ON ITS FACE AND BY THE
STATUTE'S EXPRESS DECLARATION, NAMELY, A SERIES OF REGULATIONS DESIGNED
AND REASONABLY ADAPTED TO PROTECT THE PUBLIC FROM FRAUD,
MISREPRESENTATION, INCOMPETENCE AND SHARP PRACTICE WHICH FALLS SHORT OF
MINIMUM STANDARDS OF DECENCY IN THE SELLING OF INSURANCE BY PERSONAL
SOLICITATION AND SALESMANSHIP.  THAT SUCH DANGERS MAY EXIST, MAY EVEN
BE WIDELY PREVALENT IN THE ABSENCE OF SUCH CONTROLS, IS A MATTER OF
COMMON KNOWLEDGE AND EXPERIENCE.  AND NO ARGUMENT IS NEEDED TO SHOW
THAT THESE EVILS ARE MOST APT TO ARISE IN CONNECTION WITH THE
ACTIVITIES OF THE LESS RELIABLE AND RESPONSIBLE INSURERS, AS WELL AS
INSURANCE BROKERS OR SALESMEN, AND VITALLY AFFECT THE PUBLIC INTEREST. 
FN7 

SUCH BEING THE PURPOSE AND EFFECT OF SEC. 1642, THERE CAN BE NO
SUBSTANTIAL QUESTION CONCERNING ITS VALIDITY ON COMMERCE CLAUSE
GROUNDS.  THAT IS TRUE WHETHER APPELLANT'S ACTS ARE TAKEN, IN THEIR
SETTING, AS BEING "IN" COMMERCE OR ONLY AS "AFFECTING" IT.  FOR THE
CASE IS RULED, SO FAR AS SEC. 1642 IS CONCERNED, BY DECISIONS SUCH AS
CALIFORNIA V. THOMPSON, 313 U.S. 109; HARTFORD INDEMNITY CO. V.
ILLINOIS, 298 U.S. 155; SMITH V. ALABAMA, 124 U.S. 465; NASHVILLE, C. &
ST. L.R. CO. V. ALABAMA, 128 U.S. 96; AND UNION BROKERAGE CO. V.
JENSEN, 322 U.S. 202.  FN8 

IF, IN THE ABSENCE OF CONTRARY ACTION BY CONGRESS, A STATE MAY
LICENSE AGENTS OR BROKERS FOR THE SALE OF INTERSTATE TRANSPORTATION IN
ORDER TO PREVENT FRAUD, CALIFORNIA V. THOMPSON, SUPRA; TRAINMEN ENGAGED
IN INTERSTATE COMMERCE TO SECURE THEIR COMPETENCE, SMITH V. ALABAMA,
SUPRA; NASHVILLE, C. & ST. L.R. CO. V. ALABAMA, SUPRA; THE SALE ON
COMMISSION OF INTERSTATE CONSIGNMENTS OF FARM PRODUCE TO SECURE HONEST
DEALING AND FINANCIAL RESPONSIBILITY, HARTFORD INDEMNITY CO. V.
ILLINOIS, SUPRA; AND THE ACTIVITIES OF CUSTOMS BROKERS TO SECURE
RESPONSIBILITY IN THE STATE COURTS ON CLAIMS ARISING LOCALLY, UNION
BROKERAGE CO. V. JENSEN, SUPRA, BY THE SORTS OF CONDITIONS IMPOSED
THROUGH THE RESPECTIVE LICENSING PROVISIONS, THERE CAN BE NO VALID
REASON FOR OUTLAWING SEC. 1642 HERE. 

THAT APPELLANT'S ACTIVITIES WERE OF A KIND WHICH VITALLY AFFECT THE
WELFARE AND SECURITY OF THE LOCAL COMMUNITY, THE STATE AND THEIR
RESIDENTS COULD NOT BE DENIED.  CF. HOOPESTON CO. V. CULLEN, 318 U.S.
313, 316 FF.  THEY HAD IN FACT A HIGHLY "SPECIAL INTEREST" IN HIS
LOCALIZED PURSUIT OF THIS PHASE OF THE COMPREHENSIVE PROCESS OF
CONDUCTING AN INTERSTATE INSURANCE BUSINESS.  CF. UNION BROKERAGE CO.
V. JENSEN, SUPRA, AT 212.  HERE, AS IN EACH OF THE INSTANCES CITED,
APPELLANT'S ACTIVITIES CALLED IN QUESTION WERE CONCENTRATED IN THE
REGULATING STATE, ALTHOUGH AFFECTING OR CONSTITUTING INTERSTATE
COMMERCE.  MOREOVER THE LICENSING PROVISION OF SEC. 1642 IS REGULATORY,
NOT EXCLUSORY IN CHARACTER; IS NOT DISCRIMINATORY; IS NOT IN CONFLICT
WITH ANY POLICY OR ACTION OF CONGRESS BUT RATHER ACCORDS WITH ITS
EXPRESSED VIEWS IN SO FAR AS THE MCCARRAN ACT MAY BE TAKEN TO BE
APPLICABLE; FN9  AND IS DESIGNED APPROPRIATELY TO SECURE THE PUBLIC
FROM THOSE EVILS OF UNCONTROLLED INSURANCE SOLICITATION TO WHICH IT IS
DIRECTED.  IN VIEW OF THESE FACTS THE REGULATION "NEITHER DISCRIMINATES
AGAINST NOR SUBSTANTIALLY OBSTRUCTS THE COMMERCE."  CALIFORNIA V.
THOMPSON, SUPRA, AT 114. 

FURTHERMORE, HERE AS IN THE CITED CASES, "UNLESS SOME MEASURE OF
LOCAL CONTROL IS PERMISSIBLE," THE ACTIVITIES AND THEIR ATTENDANT EVILS
"MUST GO LARGELY UNREGULATED," UNLESS OR UNTIL CONGRESS UNDERTAKES THAT
FUNCTION.  CALIFORNIA V. THOMPSON, SUPRA, AT 115.  AND IN VIEW OF THE
WELL-KNOWN CONDITIONS OF COMPETITION IN THIS FIELD, SUCH A RESULT NOT
ONLY WOULD FREE OUT-OF-STATE INSURANCE COMPANIES AND THEIR
REPRESENTATIVES OF THE REGULATION'S EFFECT, THUS GIVING THEM ADVANTAGE
OVER LOCAL COMPETITORS, BUT BY SO DOING WOULD TEND TO BREAK DOWN THE
SYSTEM OF REGULATION IN ITS PURELY LOCAL OPERATION. 

                      II. 

HAS SOMEWHAT DIFFERENT EFFECTS THAN DOES SEC. 1642.  UNLIKE THE LATTER,
WHICH APPLIES TO ACTING AS AGENT FOR ALL INSURERS, IT FORBIDS ACTING AS
AGENT FOR NONADMITTED INSURERS ALONE, UNLESS THE PERSON SO ACTING IS A
"SURPLUS LINE BROKER."  FN10  TO BECOME A SURPLUS LINE BROKER ONE MUST
PROCURE A SPECIAL LICENSE PURSUANT TO THE REQUIREMENTS OF SEC. 1765. 
THIS LICENSE ALSO IS ISSUED UPON APPLICATION, IF THE COMMISSIONER OF
INSURANCE FINDS THAT THE APPLICANT IS "TRUSTWORTHY AND COMPETENT TO
TRANSACT AN INSURANCE BROKERAGE BUSINESS IN SUCH MANNER AS TO SAFEGUARD
THE INTEREST OF THE INSURED  ..."  THE APPLICANT ALSO MUST FILE WITH
THE COMMISSIONER A FAITHFUL PERFORMANCE BOND IN THE AMOUNT OF $5000 AND
PAY A FILING FEE OF $50. 

SO FAR AS CONCERNS THESE REQUIREMENTS OF SEC. 1765 FOR PROCURING THE
SURPLUS LINE BROKER'S LICENSE, IF THEY ARE CONSIDERED WITHOUT REFERENCE
TO ANY OF THE OTHER CODE PROVISIONS, THE SAME CONCLUSION IS REQUIRED
CONCERNING THE VALIDITY OF SEC. 703(A) AS FOR THAT OF SEC. 1642, BY THE
AUTHORITIES ABOVE CITED AND DISCUSSED.  INDEED THE FILING FEE OF $50 IS
LARGER THAN THE COMBINED FEES REQUIRED BY SEC. 1642, BUT NOT MORE THAN
THE FEE INVOLVED IN THE UNION BROKERAGE CASE, SUPRA.  AND THE BOND
PROVISION IS SUBSTANTIALLY IDENTICAL WITH THAT SUSTAINED IN CALIFORNIA
V. THOMPSON, SUPRA.  IN THE ABSENCE OF ANY SHOWING THAT IT IS
ADMINISTERED ARBITRARILY, THE REQUIREMENT THAT THE LICENSE SHALL ISSUE
ONLY AFTER A FINDING OF TRUSTWORTHINESS AND COMPETENCE BY THE
COMMISSIONER CANNOT BE TAKEN TO BE OTHER THAN AN APPROPRIATE MEANS OF
SAFEGUARDING THE PUBLIC AGAINST THE OBVIOUS EVILS ARISING FROM THE LACK
OF THOSE QUALIFICATIONS.  CALIFORNIA V. THOMPSON, SUPRA.  CONSIDERED
SEPARATELY FROM ANY RELATIONSHIP TO OTHER SECTIONS OF THE CODE,
THEREFORE, THE PRESCRIBED CONDITIONS FOR SECURING THE SURPLUS LINE
BROKER'S LICENSE ARE NO MORE INVALID THAN THOSE WHICH MUST BE FULFILLED
TO SECURE THE GENERAL AGENT'S LICENSE UNDER SEC. 1642.  FN11 

THIS, THE STATE CONTENDS, IS ALL THAT NEEDS TO BE CONSIDERED, SINCE
APPELLANT NEITHER POSSESSED NOR, SO FAR AS APPEARS, HAD APPLIED FOR OR
BEEN DENIED A SURPLUS LINE BROKER'S LICENSE.  CONSEQUENTLY, IN ITS
VIEW, THE VALIDITY OF OTHER PROVISIONS OF THE CODE IS NOT INVOLVED,
EITHER DIRECTLY OR BY NECESSARY RELATIONSHIP TO SEC. 703(A).  FN12
                           III. 

APPELLANT INSISTS, HOWEVER, THAT SEC. 703(A), TAKEN IN CONJUNCTION
WITH SEC. 1765, IS MORE THAN A LICENSING REQUIREMENT FOR REGULATING THE
QUALIFICATIONS OF AGENTS ACTING IN CALIFORNIA IN THE TRANSACTION OF THE
BUSINESS COVERED BY ITS TERMS.  IT IS RATHER, HE MAINTAINS, A
PROHIBITION OF THE WRITING OF SUCH INSURANCE THERE BY NONADMITTED
INSURERS AND THEIR AGENTS.  AND THIS, HE SAYS, THE STATE CANNOT DO,
BOTH BECAUSE IT CANNOT EXCLUDE INTERSTATE COMMERCE IN CALIFORNIA AND
BECAUSE IT CANNOT DISCRIMINATE AGAINST OUT-OF-STATE INSURERS IN SUCH A
MANNER. 

THESE CONCLUSIONS ARE BASED ON THE VIEW THAT SEC. 703(A) IS RELATED
INSEPARABLY BY ITS TERMS AND IN FACT TO OTHER CODE PROVISIONS IN
ADDITION TO SEC. 1765, NAMELY, THOSE REGULATING THE ADMISSION OF
FOREIGN INSURANCE CORPORATIONS TO DO BUSINESS IN CALIFORNIA  FN13  AND
THE INTERWOVEN PROVISIONS REGULATING ACTIVITIES OF SURPLUS LINE
BROKERS.  FN14  SECTION 703(A) ON ITS FACE FORBIDS ACTING AS AGENT FOR
NONADMITTED INSURERS, EXCEPT IN THE CASE OF A SURPLUS LINE BROKER.  AND
THE COMBINED EFFECTS OF THE PROVISIONS RELATING TO SUCH BROKERS AND OF
THOSE GOVERNING THE ADMISSION OF FOREIGN CORPORATIONS ARE SAID TO BE TO
"ABSOLUTELY PROHIBIT" THE WRITING OF OR AIDING IN PROCURING THE TYPE OF
INSURANCE ISSUED HERE OR INDEED OF ANY INSURANCE ISSUED BY THE
SOCIETY.  FN15 

CALIFORNIA IN EFFECT CONCEDES THIS, ALTERNATIVELY TO MAINTAINING THAT
NO QUESTION CONCERNING THE VALIDITY OF THOSE PROVISIONS IS PRESENTED. 
THE SHORT EFFECT OF THE ADMISSION PROVISIONS, FOR PURPOSES NOW
PERTINENT, THE STATE ADMITS, IS TO FORBID EITHER FOREIGN OR DOMESTIC
COMPANIES TO DO A LIFE INSURANCE BUSINESS IN CALIFORNIA OTHER THAN ON A
LEGAL RESERVE BASIS,  FN16  EXCEPT AS TO COMPANIES ENGAGED IN DOING
SUCH BUSINESS THERE PRIOR TO JANUARY 1, 1940.  FN17  THE POLICY
UNDERLYING THIS EXCLUSION IS SAID TO BE FOUNDED IN THE STATE'S
EXPERIENCE SHOWING THAT A MUTUAL COMPANY DOING BUSINESS "ON THE
STIPULATED PREMIUM PLAN WITH RIGHT OF ASSESSMENT,  FN18  WITHOUT A
SUFFICIENT SURPLUS AND FULL RESERVES, IS NOT ADEQUATELY SAFEGUARDED TO
INSURE THAT MONEY WILL BE AVAILABLE TO PAY DEATH BENEFITS."  IN SUPPORT
OF THIS STATEMENT OF CALIFORNIA'S POLICY AND THE EXPERIENCE ON WHICH IT
IS FOUNDED, COUNSEL POINT TO THE ANNUAL REPORTS OF THE INSURANCE
COMMISSIONER COVERING A PERIOD OF SOME SIX YEARS, FROM 1934 TO 1940,
FN19  WHICH RESULTED IN SOME OF THE LEGISLATION NOW CALLED IN
QUESTION.  SEE ALSO X REPORT OF JOINT INSURANCE INVESTIGATION COMMITTEE
(N.Y.)  364-365(1906); HOOPESTON CO. V. CULLEN, 318 U.S. 313, 321. 

FURTHERMORE, THE STATE APPARENTLY CONCEDES, AS APPELLANT CONTENDS,
NOT ONLY THAT THE SOCIETY IS EXCLUDED FROM TRANSACTING INSURANCE
BUSINESS BY THE ADMISSION REQUIREMENTS AND ITS FAILURE TO COMPLY WITH
THEM, BUT ALSO THAT APPELLANT WOULD BE FORBIDDEN TO PLACE INSURANCE
WITH IT BY THE PROVISIONS RELATING TO SURPLUS LINE INSURANCE, EVEN IF
HE HAD SECURED THE SURPLUS LINE BROKER'S LICENSE.  FN20 

AS WE UNDERSTAND IT, THEREFORE, APPELLANT'S ARGUMENT IN THIS PHASE
COMES IN SUBSTANCE TO TWO THINGS:  (1) THAT THE ADMISSION REQUIREMENTS
AND THE SURPLUS LINE BROKER PROVISIONS, AS THEY RELATE TO NONADMITTED
INSURERS AND THEIR AGENTS, ARE INVALID FOR DISCRIMINATION AGAINST OUT
OF-STATE INSURERS AND IN FAVOR OF DOMESTIC ONES; (2) THAT CALIFORNIA,
AS A RESULT OF THE SOUTH-EASTERN DECISION, NO LONGER CAN REQUIRE
FOREIGN INSURANCE CORPORATIONS SEEKING TO DO BUSINESS THERE TO MAINTAIN
MINIMUM RESERVES FOR PROTECTION OF POLICYHOLDERS IN THE STATE OR COMPEL
AGENTS OR BROKERS TO REFRAIN FROM REPRESENTING THEM THERE
NOTWITHSTANDING SUCH NONCOMPLIANCE. 

THE DISCRIMINATION ARGUMENT IS WITHOUT SUBSTANCE IN SO FAR AS IT
MAINTAINS THAT THE STATUTES PERMIT DOMESTIC COMPANIES TO OPERATE
WITHOUT MEETING THESE REQUIREMENTS, BUT FORBID OUT-OF-STATE INSURERS TO
DO LIKEWISE.  FOR, AS HAS BEEN NOTED,  FN21 THE CONDITIONS APPLY ALIKE
TO DOMESTIC AND FOREIGN CORPORATIONS, EXCEPTING ONLY THOSE ORGANIZED OR
ADMITTED TO DO BUSINESS IN CALIFORNIA BEFORE JANUARY 1, 1940.  AS TO
THEM DIFFERENT STANDARDS ARE APPLICABLE, BUT THEY TOO APPLY EQUALLY AND
ALIKE TO DOMESTIC AND FOREIGN INSURERS.  FN22 

THAT THE STATE HAS SEEN FIT TO DRAW A LINE AS OF THAT DATE BETWEEN
NEW COMPANIES SEEKING TO ENTER THE FIELD AND ESTABLISHED COMPANIES,
DIFFERENTIATING THE TWO CLASSES BY DIFFERENT STANDARDS IN THE MINIMUM
RESERVE REQUIREMENTS, IN ORDER TO PERMIT THE LATTER TO CONTINUE IN
BUSINESS AND BUILD UP RESERVES,  FN23  DOES NOT INVOLVE ANY
DISCRIMINATION AS BETWEEN DOMESTIC AND FOREIGN OR INTERSTATE AND
INTRASTATE INSURERS.  FOR EACH MAY BE AUTHORIZED TO ENTER, AND EACH TO
CONTINUE, ON IDENTICAL TERMS.  SUCH A DISTINCTION DOES NOT BECOME
DISCRIMINATORY, IN ANY SENSE NOW PERTINENT, MERELY BECAUSE THE
PREEXISTING COMPANIES ARE ALLOWED TO CONTINUE THEIR BUSINESS UNDER
SOMEWHAT LESS BURDENSOME RESERVE REQUIREMENTS THAN THOSE UNDER WHICH
NEW COMPANIES ARE PERMITTED TO ENTER.  SEE X REPORT OF JOINT INSURANCE
INVESTIGATION COMMITTEE (N.Y.)  P. 365(1906).  OTHERWISE THE STATE,
HAVING AUTHORIZED EITHER DOMESTIC OR FOREIGN COMPANIES TO ENGAGE IN THE
BUSINESS, WOULD BE GREATLY RESTRICTED, PERHAPS FORECLOSED, IN RAISING
THE RESERVE REQUIREMENTS AS EXPERIENCE AND THE PUBLIC INTEREST MIGHT
MAKE NECESSARY.  FN24 

APART FROM THIS CLASSIFICATION, WHICH IS CLEARLY WITHIN THE STATE'S
POWER, THE DISCRIMINATION ARGUMENT BECOMES IDENTICAL WITH THE
CONTENTION THAT THE STATE CANNOT EXCLUDE FOREIGN COMPANIES, SUCH AS THE
FIRST NATIONAL BENEFIT SOCIETY, OR THEIR AGENTS, FROM CARRYING ON THEIR
BUSINESS IN CALIFORNIA FOR FAILURE TO MEET HER RESERVE REQUIREMENTS. 

THIS IS THE CRUCIAL CONTENTION.  IT TOO IS WITHOUT MERIT.  THE EVILS
FLOWING FROM IRRESPONSIBLE INSURERS AND INSURANCE CERTAINLY ARE NOT
LESS THAN THOSE ARISING FROM THE ACTIVITIES OF IRRESPONSIBLE,
INCOMPETENT OR DISHONEST INSURANCE AGENTS.  THE TWO THINGS ARE
CONCOMITANT, BEING MERELY DIFFERENT FACADES OF THE SAME SEPULCHRE FOR
THE INVESTMENTS AND SECURITY OF THE PUBLIC.  CF. STUDY OF LEGAL RESERVE
LIFE INSURANCE COMPANIES, T.N.E.C. MONOGRAPH NO. 28, SEC. XV.  IT WOULD
BE IDLE TO REQUIRE LICENSING OF INSURANCE AGENTS, IN ORDER TO SECURE
HONESTY AND COMPETENCE, YET TO PLACE NO RESTRAINT UPON THE KIND OF
INSURANCE TO BE SOLD OR THE KINDS OF COMPANIES ALLOWED TO SELL IT, AND
THEN TO COVER THEIR REPRESENTATIVES WITH THEIR IMMUNITY.  THIS COULD
ONLY RESULT IN PLACING DOMESTIC AND COMPLYING FOREIGN INSURERS AT GREAT
DISADVANTAGE AND EVENTUALLY IN NULLIFYING ALL CONTROLS UNLESS OR UNTIL
CONGRESS SHOULD TAKE OVER THE REGULATION. 

NO SUCH CONSEQUENCE HAS FOLLOWED FROM THE SOUTH-EASTERN DECISION.  IT
DID NOT WIPE OUT THE EXPERIENCE OF THE STATES IN THE REGULATION OF THE
BUSINESS OF INSURANCE OR ITS EFFECTS FOR THE CONTINUED VALIDITY OF THAT
REGULATION.  MUCH OF THIS WAS CONCERNED WITH THE ACTIVITIES OF SO
CALLED FOREIGN INSURANCE COMPANIES AND, IN PARTICULAR, WITH
REQUIREMENTS DESIGNED TO SECURE MINIMUM GUARANTIES OF SOLVENCY AND
ABILITY TO PAY CLAIMS AS THEY MATURE.  ESSENTIALLY THE PROTECTION
SOUGHT WAS AGAINST FLY-BY-NIGHT OPERATORS AND THE GROSSER FORMS OF
PROFITEERING AND FINANCIAL MISMANAGEMENT ALL TOO COMMON IN UNREGULATED
INSURANCE ACTIVITY.  SEE GENERALLY PATTERSON, THE INSURANCE
COMMISSIONER IN THE UNITED STATES (1927). 

IT IS TRUE THAT CALIFORNIA IMPOSES HER RESERVE STANDARDS, FOR BOTH
DOMESTIC AND FOREIGN INSURERS, BY REQUIRING THEM TO SECURE A
CERTIFICATE OF AUTHORITY TO DO BUSINESS ISSUED UPON COMPLIANCE WITH
THOSE CONDITIONS, IN OTHER WORDS, BY A FORM OF LICENSING.  BUT WE ARE
FAR BEYOND THE TIME WHEN, IF EVER, THE WORD "LICENSE" PER SE WAS A
CONDEMNATION OF STATE REGULATION OF INTERSTATE BUSINESS DONE WITHIN THE
STATE'S BORDERS.  FN25  THE COMMERCE INVOLVED HERE IS NOT
TRANSPORTATION.  NOR IS IT OF A SORT WHICH TOUCHES THE STATE AND ITS
PEOPLE SO LIGHTLY THAT LOCAL REGULATION IS INAPPROPRIATE OR INTERFERES
UNREASONABLY WITH THE COMMERCE OF OTHER STATES.  FN26 NOT THE MERE FACT
OR FORM OF LICENSING, BUT WHAT THE LICENSE STANDS FOR BY WAY OF
REGULATION IS IMPORTANT.  FN27  SO ALSO, IT IS NOT SIMPLY THE FACT OF
PROHIBITION, BUT WHAT IS FORBIDDEN AND FOR THE PROTECTION OF WHAT
INTEREST, THAT IS DETERMINATIVE.  FOR THE COMMERCE CLAUSE IS NOT A
GUARANTY OF THE RIGHT TO IMPORT INTO A STATE WHATEVER ONE MAY PLEASE,
ABSENT A PROHIBITION BY CONGRESS, REGARDLESS OF THE EFFECTS OF THE
IMPORTATION UPON THE LOCAL COMMUNITY.  THAT IS TRUE WHETHER WHAT IS
BROUGHT IN CONSISTS OF DISEASED CATTLE  FN28  OR FRAUDULENT OR UNSOUND
INSURANCE. 

HERE CALIFORNIA'S RESERVE REQUIREMENTS FOR SECURING AUTHORITY TO DO
BUSINESS CANNOT BE HELD, EITHER ON THE FACE OF THE STATUTE OR BY ANY
SHOWING THAT HAS BEEN MADE, TO BE EXCESSIVE FOR THE PROTECTION OF THE
LOCAL INTEREST AFFECTED; OR DESIGNED OR EFFECTIVE EITHER TO
DISCRIMINATE AGAINST FOREIGN OR INTERSTATE INSURERS OR TO FORBID OR
EXCLUDE THEIR ACTIVITIES, BY ALL WHO ARE ABLE AND WILLING TO MAINTAIN
REASONABLE MINIMUM RESERVE STANDARDS FOR THE PROTECTION OF
POLICYHOLDERS.  EXCLUSION THERE IS, BUT IT IS EXCLUSION OF WHAT THE
STATE HAS THE POWER TO KEEP OUT, UNTIL CONGRESS SPEAKS OTHERWISE. 
EVERY CONSIDERATION WHICH SUPPORTS THE LICENSING OF AGENTS AND BROKERS,
AND THE AUTHORITIES WE HAVE CITED GIVING EFFECT TO THOSE
CONSIDERATIONS,  FN29  SUSTAIN THE STATE'S REQUIREMENTS IN THIS
RESPECT, AS DO ALSO THE DECISIONS WHICH HAVE SUSTAINED VARIOUS MEASURES
OF EXCLUSION IN PROTECTION OF THE PUBLIC HEALTH, SAFETY AND SECURITY
NOT ONLY FROM PHYSICAL HARM BUT FROM VARIOUS FORMS OF FRAUD AND
IMPOSITION.  FN30 

IT IS QUITE OBVIOUS, TO REPEAT ONLY ONE OF THOSE CONSIDERATIONS, THAT
IF APPELLANT'S CONTENTIONS WERE ACCEPTED AND FOREIGN INSURERS WERE TO
BE HELD FREE TO DISREGARD CALIFORNIA'S RESERVE REQUIREMENTS AND THEN TO
CLOTHE THEIR AGENTS OR OTHERS ACTING FOR THEM WITH THEIR IMMUNITY, NOT
ONLY WOULD THE STATE BE MADE HELPLESS TO PROTECT HER PEOPLE AGAINST THE
GROSSEST FORMS OF UNREGULATED OR LOOSELY REGULATED FOREIGN INSURANCE,
BUT THE RESULT WOULD BE INEVITABLY TO BREAK DOWN ALSO THE SYSTEM FOR
CONTROL OF PURELY LOCAL INSURANCE BUSINESS.  IN SHORT, THE RESULT WOULD
BE ULTIMATELY TO FORCE ALL OF THE STATES TO ACCEPT THE LOWEST STANDARD
FOR CONDUCTING THE BUSINESS PERMITTED BY ONE OF THEM OR, PERHAPS, BY
FOREIGN COUNTRIES.  INEVITABLY THIS WOULD MEAN THAT CONGRESS WOULD BE
FORCED TO INTERVENE AND DISPLACE THE STATES IN REGULATING THE BUSINESS
OF INSURANCE.  NEITHER THE COMMERCE CLAUSE NOR THE SOUTH-EASTERN
DECISION DICTATES SUCH A RESULT. 

WE DO NOT INTIMATE THAT THIS PARTICULAR SOCIETY'S INSURANCE IS
UNSOUND OR FRAUDULENT.  AS TO THAT NO SHOWING HAS BEEN MADE.  WE ONLY
SAY THAT CALIFORNIA HAS IMPOSED ITS RESERVE REQUIREMENTS AS ALLOWABLE
STANDARDS FOR SECURING MINIMUM ASSURANCE TO THE STATE'S POLICYHOLDERS
IN RESPECT TO PERFORMANCE OF THEIR POLICIES BY THE INSURER, NOT AS A
MERE EXCLUSIONARY MEASURE IN EXERCISE OF THE POWER TO BAR FOREIGN
CORPORATIONS ALTOGETHER; AND THAT IN THE ABSENCE OF COMPLIANCE THE
STATE CAN EXCLUDE THE COMPANY AND ITS REPRESENTATIVES AS IT DID, UNTIL
CONGRESS MAKES CONTRARY COMMAND.  THEIR REMEDY IS NOT TO DESTROY THE
REGULATORY RESERVE CONDITIONS, BUT TO COMPLY WITH THEM. 

IT FOLLOWS ALSO THAT APPELLANT'S OBJECTIONS FOUNDED ON THE PROVISIONS
RELATING TO THE PLACING OF SURPLUS LINE INSURANCE WITH NONADMITTED
INSURERS ARE WITHOUT MERIT.  APART FROM THE PHASE RELATING TO THE
REQUIREMENTS FOR OBTAINING THE SURPLUS LINE BROKER'S LICENSE, THE
OBJECTION IS TWO-FOLD.  ONE IS THAT, EVEN IF LICENSED, APPELLANT WOULD
BE FORBIDDEN TO PLACE THE INSURANCE WITH A NONADMITTED INSURER, UNLESS
THERE WERE NO ADMITTED ONE WITH WHICH THE RISK COULD BE WRITTEN.  THE
OTHER, THAT IN ANY EVENT THE RISK COULD NOT BE PLACED WITH THE
NONADMITTED INSURER FOR A LESS PREMIUM THAN WOULD BE ACCEPTED BY ANY
ADMITTED INSURER.  THE SHORT ANSWER WOULD SEEM TO BE THAT, BY THE
RESERVE REQUIREMENTS FOR ADMISSION AND RELATED PROHIBITIONS, THE STATE
FORBIDS ENTIRELY THE PLACING OF INSURANCE OF THE SORT ISSUED HERE,
WHETHER WITH DOMESTIC, ADMITTED OR NONADMITTED COMPANIES.  FN31 

IT REMAINS TO SAY A WORD CONCERNING THE EFFECT OF THE MCCARRAN ACT
FOR THIS CASE AND THE CONTENTIONS FOUNDED ON THE FOURTEENTH AMENDMENT. 

AS FOR THE LATTER, WITH RESPECT TO DUE PROCESS, THE ONLY OBJECTION
ADVANCED WHICH IS INDEPENDENT OF COMMERCE CLAUSE CONSIDERATIONS IS THAT
TO SUSTAIN THE STATE'S REQUIREMENTS, PARTICULARLY IN SO FAR AS THEY
EXCLUDE THE SOCIETY FROM INTERSTATE OPERATIONS IN CALIFORNIA AND THUS
ALSO APPELLANT'S ACTIVITIES IN AID OF ITS BUSINESS, WILL BE IN EFFECT
TO PROJECT CALIFORNIA'S LAWS INTO OTHER STATES, HERE PRESUMABLY
ARIZONA, AND REGULATE THE SOCIETY'S ACTIVITIES THERE.  THE CONTENTION
IS OBVIOUSLY WITHOUT MERIT.  NOTHING WHICH CALIFORNIA REQUIRES TOUCHES
OR AFFECTS ANYTHING THE SOCIETY OR APPELLANT MAY DO OR WISH TO DO IN
ARIZONA OR ELSEWHERE THAN IN CALIFORNIA.  HOOPESTON CO. V. CULLEN,
SUPRA. 

LIKEWISE THE EQUAL PROTECTION CONTENTION IS WHOLLY WITHOUT
SUBSTANCE.  FN32 

OUR DETERMINATION HAS BEEN MADE WITHOUT SPECIFIC RELIANCE UPON THE
MCCARRAN ACT FOR TWO REASONS.  ONE IS THAT THIS WAS NOT NECESSARY.  THE
OTHER ARISES FROM THE FACTS THAT THIS IS A CRIMINAL PROCEEDING, THE
APPELLANT'S ACTS HELD TO VIOLATE THE CALIFORNIA STATUTES WERE COMMITTED
IN AUGUST FOLLOWING RENDITION OF THE SOUTH-EASTERN DECISION IN JUNE OF
1944, AND THE MCCARRAN ACT WAS NOT APPROVED UNTIL MARCH 9, 1945.  THE
EFFECT OF THAT STATUTE WE HAVE CONSIDERED IN THE PRUDENTIAL CASE, ANTE,
P. 408.  BUT THAT CASE INVOLVED NO CRIMINAL OR PENAL PHASE AND
THEREFORE NO CONCEIVABLE EX POST FACTO EFFECT.  IT IS DOUBTFUL THAT
MORE THAN THE SEMBLANCE OF SUCH AN EFFECT WOULD BE INVOLVED BY RELIANCE
UPON THE ACT IN THIS CASE.  FOR IT HARDLY COULD BE MAINTAINED THAT THE
SOUTH-EASTERN DECISION HAD THE EFFECT TO CONVERT CONGRESS' PREEXISTING
SILENCE CONCERNING A MATTER WHICH PRIOR TO THE DECISION HAD BEEN HELD
NOT TO BE COMMERCE INTO AN EXPRESSION BY CONGRESS OF DISAPPROVAL OF
THESE PROVISIONS OF THE CALIFORNIA CODE DURING THE SHORT PERIOD
INTERVENING BETWEEN THE DECISION AND THE DATE ON WHICH APPELLANT
ACTED.  THE INDICATED INFERENCE, IF ANY, WOULD BE TO THE CONTRARY,
WHOLLY WITHOUT REGARD TO THE MCCARRAN ACT.  ITS EFFECT MIGHT REASONABLY
BE TAKEN AS MERELY DECLARING OR CONFIRMING EXPRESSLY THE INFERENCE
WHICH WOULD BE INDICATED FROM CONGRESS' SILENCE ENTIRELY WITHOUT
REFERENCE TO THE ACT'S PROVISIONS.  BUT THE DECLARATION WAS MADE, AS WE
HAVE SAID, AFTER APPELLANT'S ACTS WERE DONE.  AND TO AVOID ANY
SEMBLANCE OF RETROACTIVE EFFECT IN A CRIMINAL MATTER, WE HAVE REFRAINED
FROM EXPLICIT RELIANCE UPON THE ACT IN THIS CASE.  IT DOES NOT DETRACT
FROM OUR DECISION ON OTHER GROUNDS THAT THE MCCARRAN ACT, IF APPLIED,
WOULD DICTATE THE SAME RESULT. 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF MARCH 9, 1945, 59 STAT. 33; 15 U.S.C. SECS. 1011-1015. 
SEE TEXT INFRA, FOLLOWING NOTE 32. 

FN2  THE CONVICTION WAS OBTAINED IN THE JUSTICE'S COURT OF VENTURA
TOWNSHIP, CALIFORNIA.  THE SUPERIOR COURT OF VENTURA COUNTY WAS THE
HIGHEST COURT OF THE STATE TO WHICH APPEAL COULD BE TAKEN.  ITS OPINION
IS NOT REPORTED.  THE PENALTY WAS A FINE OF $100 IMPOSED FOR VIOLATING
EACH COUNT. 

FN3  IN THE STATEMENT OF APPEAL FILED IN THE SUPERIOR COURT THE
GROUNDS RELIED UPON, APART FROM COMMERCE CLAUSE AND LOCAL LAW
OBJECTIONS, WERE ONLY THAT APPELLANT'S ACTS "WERE, IF TRUE, DONE BY HIM
IN ACCORDANCE WITH THE PROVISIONS OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES  ..."  AND THAT SECS. 703(A) AND 1642
"ARE UNCONSTITUTIONAL AND IN VIOLATION OF  ... THE FOURTEENTH AMENDMENT
..." 

FN4  DEERING'S CALIFORNIA CODES, INSURANCE CODE OF CALIFORNIA, SECS.
703, 1642.  THESE SECTIONS ARE PART OF CALIFORNIA'S COMPREHENSIVE
REGULATORY SCHEME FOR THE BUSINESS OF INSURANCE; AND ARE DIRECTLY
RELATED, IN THE CASE OF SEC. 703, TO THE REQUIREMENTS LAID BY OTHER
OF SEC. 1642 TO SUCH REQUIREMENTS FOR SECURING A LICENSE TO ACT IN THE
SPECIFIED REPRESENTATIVE CAPACITIES, SEE TEXT INFRA. 

FN5  BUT SEE 322 U.S. 533, 547 FF. 

FN6 THUS, IT WAS LONG SETTLED, UNDER THE DOCTRINE OF PAUL V.
VIRGINIA, 8 WALL.  168, THAT NEITHER DUE PROCESS NOR EQUAL PROTECTION
OF THE LAWS FORBIDS THE KIND OF STATE REGULATION OF THE BUSINESS OF
INSURANCE IMPOSED BY SECS. 703(A) AND 1642.  HOOPER V. CALIFORNIA, 155
U.S. 648; NUTTING V. MASSACHUSETTS, 183 U.S. 553.  SEE ALSO HOOPESTON
CO. V. CULLEN, 318 U.S. 313, AND TEXT INFRA AT NOTE 32. 

AS TO THE DANGERS OF BLURRING THE DUE PROCESS AND EQUAL PROTECTION
LIMITATIONS WITH COMMERCE CLAUSE IDEAS, AND THE CONSEQUENT NECESSITY
FOR SEPARATE TREATMENT IN DISPOSING OF THESE PROBLEMS, SEE RIBBLE,
STATE AND NATIONAL POWER OVER COMMERCE (1937) 98; NIPPERT V. RICHMOND,
327 U.S. 416, 423-425; MCLEOD V. DILWORTH CO., 322 U.S. 327, DISSENTING
OPINION AT 357.  CF. ALSO BETHLEHEM MOTORS CORP. V. FLYNT, 256 U.S.
421; HENDERSON, THE POSITION OF FOREIGN CORPORATIONS IN AMERICAN
CONSTITUTIONAL LAW (1918) 122; AND SEE C. IX. 

FN7  SEE HARTFORD ACCIDENT & INDEMNITY CO. V. NELSON CO., 291 U.S.
352, 360; GERMAN ALLIANCE INS. CO. V. LEWIS, 233 U.S. 389, 412-415;
OSBORN V. OZLIN, 310 U.S. 53, 65, 66; NATIONAL UNION FIRE INS. CO. V.
WANBERG, 260 U.S. 71, 76-77.  AND SEE ALSO UNITED STATES V. SOUTH
EASTERN UNDERWRITERS ASSN., 322 U.S. 533, 539 FF.; PRUDENTIAL INSURANCE
CO. V. BENJAMIN, ANTE, P. 408. 

FN8  IN SOME OF THESE CASES, E.G., HARTFORD INDEMNITY CO. V.
ILLINOIS, 298 U.S. 155, AND UNION BROKERAGE CO. V. JENSEN, 322 U.S.
202, THERE WERE ALSO FEDERAL LICENSING STATUTES WHICH THE COURT FOUND
NEITHER INCONSISTENT WITH NOR, THEREFORE, EFFECTIVE TO EXCLUDE THE
STATE LICENSING REGULATION.  THE UNION BROKERAGE CASE INVOLVED AN
INSTANCE OF STATE REGULATION OF FOREIGN COMMERCE. 

IN ADDITION TO THE CITED AUTHORITIES, SEE ALSO THE DECISIONS CITED
AND RELIED UPON IN EACH OF THE OPINIONS. 

FN9  SEE TEXT INFRA FOLLOWING NOTE 32. 

FN10  SEE NOTE 14, AS TO "SURPLUS LINE INSURANCE."  IN GENERAL THIS
IS INSURANCE INVOLVING SPECIAL RISKS OR FOR SOME OTHER REASON NOT
FALLING WITHIN THE USUAL LINES OF AUTHORIZED BUSINESS. 

FN11  APPELLANT ALSO POINTS OUT THAT BY SEC. 1775.5 AN ANNUAL TAX
EQUAL TO THREE PER CENT OF THE GROSS PREMIUMS UPON BUSINESS DONE DURING
EACH CALENDAR YEAR IS IMPOSED UPON EACH SURPLUS LINE BROKER.  APART
FROM THE FACTS THAT APPELLANT HAS NOT APPLIED FOR SUCH A LICENSE AND
THAT NO EFFORT HAS BEEN MADE TO COLLECT THIS TAX FROM APPELLANT, SO FAR
AS APPEARS, IT MAY BE NOTED THAT THE TAX APPLIES ALIKE TO ALL SURPLUS
LINE BROKERS, WHETHER ACTING FOR DOMESTIC OR ADMITTED FOREIGN INSURERS
OR FOR NONADMITTED ONES.  NO QUESTION AS TO THE VALIDITY OF THIS TAX IS
PRESENTED BY THIS RECORD. 

FN12  INDEED THE STATE ARGUES THAT NO QUESTION IS RAISED CONCERNING
THE VALIDITY OF THE REQUIREMENTS OF SEC. 1765 FOR PROCURING THE SURPLUS
LINE BROKER'S LICENSE SINCE, "SO FAR AS THIS RECORD SHOWS, THE LIFE
INSURANCE SOUGHT TO BE EFFECTED IN THIS CASE MIGHT OR MIGHT NOT HAVE
BEEN PROCURABLE FROM ADMITTED INSURERS." 

HOWEVER, ON THE ALTERNATIVE BASIS OF ACCEPTING APPELLANT'S VIEW THAT
THE INSURANCE WOULD NOT HAVE BEEN SO OBTAINABLE, CALIFORNIA CONCEDES
THE INSURANCE WOULD FALL WITHIN THE SURPLUS LINE EXCEPTION, BUT ASSERTS
THAT APPELLANT, IF HE HAD OBTAINED THE LICENSE, COULD HAVE ACTED AS
AGENT IN THE TRANSACTION.  HENCE, SINCE HE DID NOT APPLY FOR THE
LICENSE, THE STATE ARGUES THAT SEC. 1765 HAS NOT BEEN APPLIED TO HIM
AND ITS VALIDITY IS NOT INVOLVED. 

APPELLANT, HOWEVER, MAINTAINS THAT EVEN IF HE HAD SECURED THE
LICENSE, THE COMBINED EFFECTS OF SEC. 703(A) AND OTHER SECTIONS
RELATING TO SURPLUS LINE INSURANCE WOULD HAVE FORBIDDEN HIM TO ACT IN
THIS TRANSACTION.  SEE TEXT INFRA, PART III.  CALIFORNIA MAINTAINS THAT
THE VALIDITY OF OTHER CODE SECTIONS, APART FROM SECS. 703(A) AND 1642,
WAS NOT IN ISSUE IN THE STATE COURTS AND, THOUGH RAISED HERE IN THE
BRIEFS, IS NOT NECESSARILY INVOLVED. 

FN13  SEE CALIFORNIA INSURANCE CODE SECS. 1560-1607, 10818. 
APPELLANT RELIES PARTICULARLY UPON SEC. 10818, PROHIBITING THE
ORGANIZATION OR ADMISSION OF NEW INSURERS AFTER JANUARY 1, 1940, TO
OPERATE AS SO-CALLED "CHAPTER 9" COMPANIES, THAT IS, AMONG OTHERS, AS
MUTUAL COMPANIES HAVING LESS THAN THE RESERVE REQUIREMENTS SPECIFIED
FOR SUCH INSURERS OPERATING ON THE ASSESSMENT PLAN, BUT PERMITTING
PREVIOUSLY ORGANIZED OR ADMITTED COMPANIES TO CONTINUE UNDER SPECIALLY
IMPOSED REQUIREMENTS.  SEE TEXT INFRA AT NOTES 16, 21. 

PERTINENT ALSO IS SEC. 700 OF THE CODE PROVIDING:  "A PERSON SHALL
NOT TRANSACT ANY CLASS OF INSURANCE BUSINESS IN THIS STATE WITHOUT
FIRST BEING ADMITTED FOR SUCH CLASS," THROUGH SECURING A CERTIFICATE OF
AUTHORITY FROM THE COMMISSIONER ON COMPLIANCE WITH THE CODE'S
REQUIREMENTS. 

FN14  CALIFORNIA INSURANCE CODE, CHAPTER 6.  SURPLUS LINE BROKERS. 
SECS. 1760-1779. 

A PERSON WITHIN THIS STATE SHALL NOT TRANSACT ANY INSURANCE ON PROPERTY
LOCATED  ...  WITHIN, OR ON THE LIVES OR PERSONS OF RESIDENTS OF THIS
STATE WITH NONADMITTED INSURERS, EXCEPT BY AND THROUGH A SURPLUS LINE
BROKER LICENSED UNDER THIS CHAPTER AND UPON THE TERMS AND CONDITIONS
PRESCRIBED IN THIS CHAPTER." 

EFFECT INSURANCE ON HIS OWN PROPERTY WITH ANY NONADMITTED INSURER," CF.
NOTE 20, AND SEC. 1760.5 REQUIRES SPECIFIED KINDS OF INSURANCE, E.G.,
MARINE AND AIRCRAFT RISKS, TO BE PLACED WITH NONADMITTED INSURERS ONLY
THROUGH A "SPECIAL LINES' SURPLUS LINE BROKER." 

BY SEC. 1763 A SURPLUS LINE BROKER "MAY SOLICIT AND PLACE INSURANCE,
OTHER THAN AS EXCEPTED IN SECTION 1761, WITH NONADMITTED INSURERS ONLY
IF SUCH INSURANCE CAN NOT BE PROCURED FROM A MAJORITY OF THE INSURERS
ADMITTED FOR THE PARTICULAR CLASS OR CLASSES OF INSURANCE.  SUCH PART
OF THE INSURANCE AS CAN NOT BE SO PROCURED MAY BE PROCURED FROM
NONADMITTED INSURERS," IF IT IS NOT SO PLACED TO SECURE A LOWER RATE
THAN THE LOWEST ANY ADMITTED INSURER WILL ACCEPT.  STRINGENT PROVISIONS
FOR SUPERVISING THE SECTION'S REQUIREMENTS BY THE COMMISSIONER ARE
INCLUDED. 

OTHER SECTIONS REQUIRE MAINTAINING AN OFFICE IN THE STATE (SEC.
1767), KEEPING RECORDS AND MAKING REPORTS (SECS. 1768, 1769, 1774), AND
PROVIDE CRIMINAL SANCTIONS FOR VIOLATING THE CHAPTER'S PROVISIONS, SEC.
1776. 

SEE AS TO SURPLUS LINE BROKERS, PATTERSON, THE INSURANCE COMMISSIONER
IN THE UNITED STATES (1927) 188-190. 

FN15  THE ARGUMENT IS NOT ONLY VARIOUS BUT SOMEWHAT DEVIOUS. 
APPELLANT DISCLAIMS INTENTION TO MAINTAIN THAT THE STATE CANNOT
"REGULATE (THE) INSURANCE BUSINESS" AND GOES ON TO REST ON THE GENERAL
PROPOSITION THAT IT CANNOT PROHIBIT INTERSTATE COMMERCE ENTIRELY AND
THAT THE EFFECT OF THE STATUTORY PROVISIONS, PARTICULARLY SEC. 10818,
SEE NOTE 13 SUPRA, IS TO DO THIS.  AS WILL APPEAR, THE ARGUMENT REALLY
COMES DOWN TO MAINTAINING THAT CALIFORNIA CANNOT REQUIRE FOREIGN
COMPANIES OR THEIR AGENTS TO COMPLY WITH HER MINIMUM REQUIREMENTS FOR
ISSUING THE TYPE OF INSURANCE ISSUED HERE. 

FN16  BY SEC. 10510 OF THE CODE, "AN INCORPORATED LIFE INSURER
ISSUING POLICIES ON THE RESERVE BASIS SHALL NOT TRANSACT LIFE INSURANCE
IN THIS STATE UNLESS IT HAS A PAID-IN CAPITAL OF AT LEAST $200,000." 
MUTUAL INSURER.  THE EFFECT OF THE TWO SECTIONS, IT IS CONCEDED IN THE
STATE'S BRIEF, "IS TO REQUIRE THAT A STOCK COMPANY HAVE A CAPITAL STOCK
AGGREGATING AT LEAST $200,000 AND THAT A MUTUAL COMPANY HAVE A SURPLUS
OF AT LEAST $200,000 IN ORDER TO DO BUSINESS IN CALIFORNIA."  BOTH
REQUIREMENTS APPLY TO DOMESTIC AND FOREIGN COMPANIES ALIKE, WITH THE
EXCEPTIONS NOTED BELOW IN NOTE 17. 

FN17  THE EXCEPTION WAS THE RESULT OF A SERIES OF AMENDMENTS TO THE
CODE, MADE FROM 1935 TO 1939, DESIGNED GRADUALLY TO RESTRICT THE
OPERATIONS IN THE STATE OF COMPANIES OPERATING WITHOUT RESERVES, TO
ENABLE SUCH COMPANIES ALREADY ENGAGED IN BUSINESS TO BUILD UP RESERVES,
AND TO FORBID THE ORGANIZATION OR ADMISSION OF NEW COMPANIES OPERATING
WITHOUT THEM OR WITH RESERVES BELOW THE MINIMUM REQUIREMENT.  SEE
CALIF. STAT. 1935, CS. 282, 283, PP. 1002, 657, 667, 678; STAT. 1937,
C. 726, P. 2024; STAT. 1939, C. 321, P. 1609.  AND SEE ALSO THE ANNUAL
REPORTS OF THE INSURANCE COMMISSIONER, STATE OF CALIFORNIA, AS FOLLOWS:
SIXTY-SIXTH, 10-11; SIXTY-EIGHTH, XX; SIXTY-NINTH, XVII; SEVENTIETH,
XVIII; SEVENTY-FIRST, XXIX; SEVENTY-THIRD, XVII, XXII-XXIII. 

FN18  THE POLICY ISSUED IN THIS CASE CONTAINED THE FOLLOWING
PROVISION IN SMALL TYPE ON THE REVERSE SIDE OF THE SHEET:  "THE
LAWFULLY REQUIRED PORTION OF PREMIUMS PAID ON THIS CERTIFICATE SHALL BE
SET ASIDE INTO THE MORTUARY FUND.  PREMIUMS NECESSARY TO MAINTAIN THIS
CERTIFICATE IN FORCE ARE NOT FIXED AMOUNTS AND IN EVENT OF PREMIUM
INSUFFICIENCY MAY BE ADJUSTED, WITH THE WRITTEN APPROVAL OF THE
CORPORATION COMMISSION, FOR THE PURPOSE OF PAYMENT OF CLAIMS AND
GENERAL OPERATING EXPENSES.  IN THE EVENT OF ANY EMERGENCY CAUSED BY
EXCESSIVE MORTALITY THE CORPORATION MAY, WITH THE WRITTEN CONSENT OR AT
THE DIRECTION OF THE CORPORATION COMMISSION, LEVY ASSESSMENTS ON
MEMBERS TO BE PLACED IN THE MORTUARY FUND." 

FN19  SEE NOTE 17. 

FN20  SEE SEC. 1763, QUOTED IN PART IN NOTE 14, SUPRA, AND TEXT INFRA
AT NOTE 30.  THE TYPE OF INSURANCE ISSUED HERE IS NOT WITHIN THE
EXCEPTIONS SPECIFIED IN SEC. 1763, WHICH IN TURN RELATE TO SECS. 1760
AND 1760.5.  THE FORMER, IT IS TO BE NOTED, RELATES ON ITS FACE ONLY TO
PROPERTY INSURANCE; THE LATTER TO VARIOUS SPECIAL RISKS, NOT INCLUDING
MUTUAL ASSESSMENT INSURANCE, WHICH CAN BE PLACED ONLY BY A "SPECIAL
LINES' SURPLUS LINE BROKER."  SEE NOTE 14. 

FN21  SEE NOTE 13. 

FN22  IBID. 

FN23  SEE THE REPORTS OF THE INSURANCE COMMISSIONER, CITED IN NOTE
17. 

FN24  CF. QUEENSIDE HILLS REALTY CO. V. SAXL, 328 U.S. 80; CHICAGO &
ALTON R. CO. V. TRANBARGER, 238 U.S. 67; CHICAGO, B. & Q.R. CO. V.
NEBRASKA EX REL. OMAHA, 170 U.S. 57. 

FN25  SEE UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202; CLARK V. PAUL
GRAY, INC., 306 U.S. 583; BRADLEY V. PUBLIC UTILITIES COMM'N, 289 U.S.
92; HENDRICK V. MARYLAND, 235 U.S. 610; CLARK V. POOR, 274 U.S. 554;
NEW MEXICO EX REL. MCLEAN V. DENVER & RIO GRANDE R. CO., 203 U.S. 38. 

FN26  CF. HALE V. BIMCO TRADING CO., 306 U.S. 375; BALDWIN V. SEELIG,
294 U.S. 511; HOOPESTON CO. V. CULLEN, 318 U.S. 313. 

FN27  CF. AUTHORITIES CITED IN NOTE 25. 

FN28  SEE, AS TO STATE EXCLUSIONS OF AND PROHIBITIONS ON INTERSTATE
COMMERCE, RASMUSSEN V. IDAHO, 181 U.S. 198; SMITH V. ST. LOUIS & S.W.R.
CO., 181 U.S. 248; COMPAGNIE FRANCAISE V. STATE BOARD OF HEALTH, 186
U.S. 380; REID V. COLORADO, 187 U.S. 137; OREGON-WASHINGTON R. & N. CO.
V. WASHINGTON, 270 U.S. 87; MINTZ V. BALDWIN, 289 U.S. 346; CROSSMAN V.
LURMAN, 192 U.S. 189; PLUMLEY V. MASSACHUSETTS, 155 U.S. 461;
HENNINGTON V. GEORGIA, 163 U.S. 299.  SEE ALSO KIMMISH V. BALL, 129
U.S. 217; MISSOURI-K.-T.R. CO. V. HABER, 169 U.S. 613; CARTER V.
VIRGINIA, 321 U.S. 131. 

FN29  SEE PART I, TEXT. 

FN30  SEE NOTE 28. 

FN31  SEE NOTE 20 AND TEXT. 

FN32  SEE NOTE 6 AND TEXT INFRA. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I AGREE WITH THE COURT THAT THE GENERAL LICENSE REQUIREMENTS WHICH
CALIFORNIA PROVIDES FOR THE INSURANCE AGENTS WERE CONSTITUTIONAL UNDER
THE DECISIONS OF THE COURT, EVEN PRIOR TO THE MCCARRAN ACT.  BUT PRIOR
TO THAT ACT CALIFORNIA COULD NOT UNDER OUR DECISIONS UNDER THE COMMERCE
CLAUSE EXCLUDE AN INTERSTATE BUSINESS, AT LEAST IN ABSENCE OF A SHOWING
THAT IT WAS A FRAUDULENT ENTERPRISE OR IN AN UNSOUND CONDITION.  NO
SUCH SHOWING IS MADE HERE.  THE MCCARRAN ACT CHANGES THAT RULE; BUT IT
SHOULD NOT BE ALLOWED TO MAKE UNLAWFUL WHAT WAS LAWFUL WHEN DONE. 
..END :














PORTER V. LEE, 328 U.S. 246 


NOS. 1116 AND 1117.  ARGUED MAY 13, 1946.  - DECIDED MAY 27, 1946.  -
REVERSED AND REMANDED. 


WHILE AN EVICTION SUIT BY A LANDLORD AGAINST A TENANT WAS PENDING IN A
STATE COURT, THE PRICE ADMINISTRATOR SUED IN A FEDERAL DISTRICT COURT
UNDER SEC. 205 OF THE EMERGENCY PRICE CONTROL ACT TO ENJOIN THE
LANDLORD FROM EVICTING THAT TENANT "OR ANY OTHER TENANT" AND FROM
VIOLATING THE RENT REGULATION FOR HOUSING (PROMULGATED UNDER THE
EMERGENCY PRICE CONTROL ACT), WHICH FORBIDS THE EVICTION OF TENANTS SO
LONG AS THEY PAY THE RENT TO WHICH THE LANDLORD IS ENTITLED.  THE
DISTRICT COURT DISMISSED THE ADMINISTRATOR'S COMPLAINT FOR WANT OF
JURISDICTION.  WHILE AN APPEAL WAS PENDING, THE TENANT WAS EVICTED. 
THE CIRCUIT COURT OF APPEALS DISMISSED THE APPEAL AS MOOT.  HELD: 

1.  THE DISTRICT COURT HAD JURISDICTION UNDER SEC. 205(C) OF THE
EMERGENCY PRICE CONTROL ACT, WHICH PROVIDES THAT "THE DISTRICT COURTS
SHALL HAVE JURISDICTION OF CRIMINAL PROCEEDINGS FOR VIOLATIONS OF
COURTS, OF ALL OTHER PROCEEDINGS UNDER SECTION 205 OF THIS ACT."  P.
249. 

(A)  THE LANDLORD'S EVICTION PROCEEDING IN THE STATE COURT WAS NOT AN
ENFORCEMENT PROCEEDING AUTHORIZED BY THE ACT AND, THEREFORE, NOT WITHIN
THE "CONCURRENT" JURISDICTION CONTEMPLATED BY SEC. 205.  P. 250. 

(B)  OVER THE ENFORCEMENT PROCEEDINGS CONTEMPLATED BY SEC. 205, NOT
ONLY DID THE DISTRICT COURT ACQUIRE JURISDICTION FIRST, BUT THE STATE
COURT NEVER ACQUIRED ANY JURISDICTION AT ALL.  P. 250. 

2.  THE CIRCUIT COURT OF APPEALS ERRED IN HOLDING THAT THE CASE WAS
MOOT.  P. 251. 

(A)  THE MERE FACT THAT THE TENANT VACATED THE PREMISES IN COMPLIANCE
WITH A WRIT OF POSSESSION DID NOT END THE CONTROVERSY, SINCE THE COURT
COULD HAVE RESTORED THE STATUS QUO BY A MANDATORY INJUNCTION.  P. 251. 

(B)  MOREOVER, THE ADMINISTRATOR SOUGHT TO RESTRAIN THE EVICTION OF
ANY OTHER TENANT OF THE LANDLORD AS WELL AS OTHER ACTS IN VIOLATION OF
THE REGULATION; AND SEC. 205(A) AUTHORIZES SUCH A BROAD INJUNCTION UPON
A FINDING THAT THE LANDLORD HAS ENGAGED IN VIOLATIONS.  P. 251. 

PORTER, PRICE ADMINISTRATOR, V. LEE ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE PRICE ADMINISTRATOR SUED TO ENJOIN THE EVICTION OF A TENANT AND
OTHER VIOLATIONS OF THE RENT REGULATION FOR HOUSING PROMULGATED UNDER
THE EMERGENCY PRICE CONTROL ACT.  THE DISTRICT COURT DISMISSED THE SUIT
FOR WANT OF JURISDICTION.  59 F.SUPP.  639.  THE CIRCUIT COURT OF
APPEALS DISMISSED AN APPEAL AS MOOT.  THIS COURT GRANTED CERTIORARI. 
328 U.S. 826.  REVERSED AND REMANDED TO THE DISTRICT COURT FOR TRIAL ON
THE MERITS, P. 252. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

OCTOBER 24, 1944, DR. LEE BROUGHT A FORCIBLE DETAINER SUIT IN THE
JUSTICE OF THE PEACE COURT OF KENTON COUNTY, KENTUCKY, TO RECOVER
POSSESSION OF AN APARTMENT HE HAD RENTED TO R.C. AND SARAH BEEVER BY
REASON OF AN ALLEGED NONPAYMENT OF RENT DUE ON OCTOBER 18, 1944.  ON
DECEMBER 4, 1944, BEFORE ANY JUDGMENT HAD BEEN RENDERED, THE PRICE
ADMINISTRATOR, UNDER SEC. 205 OF THE EMERGENCY PRICE CONTROL ACT, 56
STAT. 23, SOUGHT AN INJUNCTION IN THE FEDERAL DISTRICT COURT TO ORDER
RESPONDENTS, DR. AND MRS. LEE, NOT TO PROSECUTE EVICTION PROCEEDINGS
AGAINST "BEEVER OR ANY OTHER TENANT" AND TO RESTRAIN THEM FROM
VIOLATING THE RENT REGULATION FOR HOUSING, 10 F.R. 3436, 13528,
PROMULGATED PURSUANT TO THE EMERGENCY PRICE CONTROL ACT.  FN1  THAT
REGULATION PROVIDES AMONG OTHER THINGS THAT SO LONG AS THE TENANT
CONTINUES TO PAY THE RENT TO WHICH THE LANDLORD IS ENTITLED NO TENANT
SHALL BE REMOVED OR EVICTED BY ANY LANDLORD.  THE ADMINISTRATOR'S
COMPLAINT IN THE INJUNCTION PROCEEDING ALLEGED THAT BEEVER OWED NO
RENT; THAT TENDER OF THE RENT DUE HAD BEEN REFUSED BY DR. LEE; THAT
THIS HAD BEEN DONE NOT BECAUSE THERE HAD BEEN A DEFAULT IN PAYMENT BUT
RATHER BECAUSE DR. LEE DID NOT WANT FAMILIES WITH CHILDREN, SUCH AS THE
BEEVERS, LIVING ON THE PREMISES; AND THAT THE EVICTION PROCEEDING,
THUS, VIOLATED THE RENT REGULATION FOR HOUSING.  THE DISTRICT COURT
ISSUED A TEMPORARY RESTRAINING ORDER, BUT LATER, WITHOUT PASSING ON THE
DISPUTED FACTUAL ISSUE OF WHETHER BEEVER HAD ACTUALLY BEEN DELINQUENT
IN PAYING HIS RENT AT THE TIME OF THE COMMENCEMENT OF THE JUSTICE OF
THE PEACE COURT PROCEEDINGS, DISMISSED THE PRICE ADMINISTRATOR'S
COMPLAINT ON THE GROUND THAT IT LACKED JURISDICTION TO ENJOIN THE LEES
FROM PROSECUTING AN EVICTION PROCEEDING IN THE STATE COURT.  BOWLES V.
LEE, 59 F.SUPP.  639.  FN2  THE JUSTICE OF THE PEACE COURT ON THE
LANDLORD'S MOTION THEN DISMISSED THE FORCIBLE DETAINER ACTION AND ON
JUNE 25, 1945, A NEW ACTION WAS BROUGHT IN THE SAME JUSTICE OF THE
PEACE COURT ASKING FOR A WRIT OF RESTITUTION TO REMOVE THE BEEVERS ON
THE GROUND OF NONPAYMENT OF RENT.  THE JUSTICE OF THE PEACE COURT THEN
ENTERED A JUDGMENT DIRECTING THE EVICTION OF THE BEEVERS.  THE PRICE
ADMINISTRATOR THIS TIME ASKED THE FEDERAL DISTRICT COURT TO RESTRAIN
ENFORCEMENT AND EXECUTION OF THE JUDGMENT OF EVICTION.  THIS ACTION BY
THE PRICE ADMINISTRATOR WAS AGAIN DISMISSED ON THE GROUND OF LACK OF
JURISDICTION. 

THE PRICE ADMINISTRATOR APPEALED FROM BOTH DISTRICT COURT ORDERS
DISMISSING HIS COMPLAINTS AND MADE PROMPT APPLICATION TO THE CIRCUIT
COURT OF APPEALS FOR AN INJUNCTION PENDING APPEAL IN THE FIRST CASE. 
THIS MOTION WAS DENIED.  THE LANDLORD MOVED TO HAVE THE CASE DISMISSED
AS MOOT AND IN SUPPORT OF THAT MOTION FILED AN AFFIDAVIT SETTING FORTH
THAT THE PREMISES HAD BEEN VACATED BY THE BEEVERS.  IN RESPONSE THE
PRICE ADMINISTRATOR SUBMITTED AN AFFIDAVIT BY R. C. BEEVER STATING THAT
HE HAD NOT VACATED THE APARTMENT AS A MATTER OF CHOICE, BUT HAD MOVED
TO SEVERAL BASEMENTS AND INTO THE HOME OF HIS WIFE'S PARENTS BECAUSE HE
WAS COMPELLED TO DO SO BY A WRIT OF POSSESSION WHICH HAD BEEN SERVED ON
HIM.  THE CIRCUIT COURT OF APPEALS DISMISSED BOTH CASES AS MOOT.  WE
GRANTED CERTIORARI BECAUSE OF THE OBVIOUS IMPORTANCE OF THE QUESTIONS
RAISED BY THE FEDERAL DISTRICT COURT'S DISMISSALS FOR WANT OF
JURISDICTION AND THE HOLDING OF THE CIRCUIT COURT OF APPEALS THAT THE
PROCEEDINGS HAD BECOME MOOT. 

FIRST.  AS TO JURISDICTION, THE PROVISIONS OF THE PRICE CONTROL ACT
AND THE RENT REGULATION FOR HOUSING, PROMULGATED PURSUANT THERETO AND
NOT CHALLENGED HERE, MAKE IT CLEAR THAT THE PRICE ADMINISTRATOR'S
ALLEGATIONS IN HIS COMPLAINT BEFORE THE DISTRICT COURT STATED AN
ENJOINABLE VIOLATION OVER WHICH THE DISTRICT COURT AS AN ENFORCEMENT
COURT ORDINARILY WOULD HAVE JURISDICTION UNDER SEC. 205(A) AND (C) OF
THE ACT.  BUT THE LANDLORD CLAIMS THAT HERE THE DISTRICT COURT WAS
WITHOUT POWER TO ACT BECAUSE THE PROVISIONS OF SEC. 205(C) PERMIT
ACTIONS IN STATE COURTS ALONE UNDER THE PARTICULAR CIRCUMSTANCES HERE. 
HE RELIES ON THAT PART OF SUBSECTION (C) WHICH PROVIDES THAT "THE
DISTRICT COURTS SHALL HAVE JURISDICTION OF CRIMINAL PROCEEDINGS FOR
VIOLATIONS OF SECTION 4 OF THIS ACT, AND, CONCURRENTLY WITH STATE AND
TERRITORIAL COURTS, OF ALL OTHER PROCEEDINGS UNDER SECTION 205 OF THIS
ACT."  THE LANDLORD'S ARGUMENT IS AS FOLLOWS:  THE ADMINISTRATOR'S
PROCEEDING IN THE FEDERAL DISTRICT COURT WAS A PROCEEDING UNDER SEC.
205 OVER WHICH THE STATE COURTS HAVE CONCURRENT JURISDICTION.  THE ONLY
ISSUE IN THE FEDERAL PROCEEDING WOULD HAVE BEEN WHETHER THE LANDLORD
HAD LEGALLY SOUGHT TO EVICT THE BEEVERS BECAUSE OF NONPAYMENT OF RENT
OR WHETHER EVICTION WAS SOUGHT FOR OTHER REASONS IN VIOLATION OF THE
APPLICABLE REGULATION.  THAT QUESTION COULD HAVE BEEN RAISED IN THE
JUSTICE OF THE PEACE COURT IN VIEW OF ITS "CONCURRENT" JURISDICTION
UNDER SEC. 205(C).  SINCE THE JUSTICE OF THE PEACE COURT ACTION BY THE
LANDLORD WAS COMMENCED PRIOR TO THE ADMINISTRATOR'S INJUNCTION
PROCEEDING IN THE FEDERAL COURT, THE JUSTICE OF THE PEACE COURT HAD
ACQUIRED SOLE POWER TO DECIDE THE CRUCIAL ISSUE AND THE FEDERAL
DISTRICT COURT THEREFORE LACKED JURISDICTION. 

WE THINK THIS CONTENTION IS WITHOUT MERIT.  SECTION 205(C) GIVES THE
STATE COURTS CONCURRENT JURISDICTION ONLY OVER NON-CRIMINAL ENFORCEMENT
"PROCEEDINGS UNDER SECTION 205."  BOWLES V. WILLINGHAM, 321 U.S. 503,
511-512.  HERE THE LANDLORD'S EVICTION PROCEEDING IN THE JUSTICE OF THE
PEACE COURT CLEARLY WAS NOT AN ENFORCEMENT PROCEEDING AUTHORIZED BY THE
ACT.  IT WAS, RATHER, IF THE ALLEGATIONS OF THE ADMINISTRATOR PROVED TO
BE TRUE, A VIOLATION OF THE ACT.  THE STATE COURT'S JURISDICTION WAS
BASED ON STATE LAW AND NOT ON SEC. 205 OF THE PRICE CONTROL ACT.  IT
WAS THEREFORE NOT PART OF THE "CONCURRENT" JURISDICTION CONTEMPLATED BY
SEC. 205.  OVER THE ENFORCEMENT PROCEEDINGS CONTEMPLATED BY THAT
THE STATE COURT NEVER ACQUIRED ANY JURISDICTION AT ALL.  IT WAS
CONSEQUENTLY WITHIN THE POWER OF THE FEDERAL DISTRICT COURT TO GRANT
THE INJUNCTION, PROVIDED THE GOVERNMENT SUCCEEDED IN PROVING THE MERITS
OF ITS CASE. 

TO RULE OTHERWISE WOULD REQUIRE THE ADMINISTRATOR TO BRING
ENFORCEMENT PROCEEDINGS, IN SITUATIONS SUCH AS THE ONE BEFORE US,
ALWAYS IN THE STATE COURTS.  SUCH A REQUIREMENT WOULD CERTAINLY NOT BE
IN ACCORD WITH THE "CONCURRENT" JURISDICTION PROVISION OF SEC. 205(C). 
OR THE ADMINISTRATOR IN ORDER TO PROTECT THE PUBLIC INTEREST WOULD
ALWAYS BE FORCED TO INTERVENE IN STATE COURT PROCEEDINGS BROUGHT BY THE
LANDLORD.  THIS PROCEDURE WOULD BE INADEQUATE, BECAUSE THE SPEEDY
MANNER IN WHICH EVICTION SUITS ARE HANDLED WILL FREQUENTLY MAKE IT TOO
LATE TO INTERVENE WHEN THE ADMINISTRATOR BECOMES AWARE OF A VIOLATION. 
FURTHERMORE, JUSTICE OF THE PEACE COURTS DO NOT, AT LEAST ORDINARILY,
HAVE JURISDICTION TO GRANT INJUNCTIONS TO PREVENT FUTURE VIOLATIONS OF
THE ACT.  SINCE THERE IS NOTHING IN THE ACT THAT LIMITS THE
ADMINISTRATOR'S ACTION TO INTERVENTION IN THE STATE COURTS, WE SEE NO
REASON, NOR ARE WE AUTHORIZED, TO SO RESTRICT HIM.  FN3 

SECOND.  WE ALSO THINK THE CIRCUIT COURT OF APPEALS ERRED IN HOLDING
THAT THE CASE WAS MOOT.  THE MERE FACT THAT THE BEEVERS, IN ORDER TO
COMPLY WITH THE WRIT OF POSSESSION, VACATED THE APARTMENT WAS NOT
ENOUGH TO END THE CONTROVERSY.  IT HAS LONG BEEN ESTABLISHED THAT WHERE
A DEFENDANT WITH NOTICE IN AN INJUNCTION PROCEEDING COMPLETES THE ACTS
SOUGHT TO BE ENJOINED THE COURT MAY BY MANDATORY INJUNCTION RESTORE THE
STATUS QUO.  TEXAS & NEW ORLEANS R. CO. V. NORTHSIDE BELT R. CO., 276
U.S. 475, 479.  THE ADMINISTRATOR, THEREFORE, WAS ENTITLED TO SEEK A
RESTORATION OF THE STATUS QUO IN THIS CASE.  SEE HENDERSON V.
FLECKINGER, 136 F.2D 381-382.  MOREOVER, HERE THE ADMINISTRATOR SOUGHT
TO RESTRAIN NOT MERELY THE EVICTION OF BEEVER BUT ALSO THAT OF ANY
OTHER TENANT OF THE LANDLORD AS WELL AS OTHER ACTS IN VIOLATION OF THE
REGULATION.  SECTION 205(A) AUTHORIZES THE DISTRICT COURT IN ITS
DISCRETION TO GRANT SUCH A BROAD INJUNCTION UPON A FINDING THAT THE
LANDLORD HAS ENGAGED IN VIOLATIONS.  SEE HECHT CO. V. BOWLES, 321 U.S.
321.  IF THE EVICTION PROCEEDING ACTUALLY WAS A VIOLATION OF THE
REGULATION, THEN BEEVER'S VACATING THE PREMISES WAS MERELY THE
COMPLETION OF ONE VIOLATION.  THE ISSUE AS TO WHETHER FUTURE VIOLATIONS
SHOULD BE ENJOINED WAS STILL BEFORE THE COURT AND WAS BY NO MEANS
MOOT. 

THE JUDGMENTS OF THE CIRCUIT COURT OF APPEALS ARE REVERSED AND THE
CASES ARE REMANDED TO THE DISTRICT COURT FOR TRIAL OF THE ISSUES ON THE
MERITS.  IT IS SO ORDERED. 

FN1  THE PART OF THE REGULATION HERE IN QUESTION (SEC. 6) WAS
PROMULGATED PURSUANT TO SEC. 2(D) OF THE EMERGENCY PRICE CONTROL ACT,
56 STAT. 23, WHICH AUTHORIZES THE ADMINISTRATOR, WHENEVER SUCH ACTION
IS NECESSARY OR PROPER IN ORDER TO EFFECTUATE THE PURPOSES OF THE ACT,
TO "REGULATE OR PROHIBIT  ...  RENTING OR LEASING PRACTICES (INCLUDING
PRACTICES RELATING TO RECOVERY OF THE POSSESSION) IN CONNECTION WITH
ANY DEFENSEAREA HOUSING ACCOMMODATIONS, WHICH IN HIS JUDGMENT ARE
EQUIVALENT TO OR ARE LIKELY TO RESULT IN  ...  RENT INCREASES  ...
INCONSISTENT WITH THE PURPOSES OF THIS ACT." 

FN2  THE ORIGINAL PETITION FOR INJUNCTION WAS FILED BY CHESTER BOWLES
AS PRICE ADMINISTRATOR.  PETITIONER PORTER IS HIS SUCCESSOR IN OFFICE,
AND UPON MOTION HE HAS BEEN SUBSTITUTED AS PETITIONER IN THIS COURT. 

FN3  AND FOR THE REASONS STATED IN PORTER V. DICKEN, POST, P. 252,
SEC. 265 OF THE JUDICIAL CODE DOES NOT REQUIRE A DIFFERENT RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :















PORTER V. DICKEN, 328 U.S. 252 


NO. 1118.  ARGUED MAY 13, 1946.  - DECIDED MAY 27, 1946.  - REVERSED AND
REMANDED. 


UNDER SEC. 205 OF THE EMERGENCY PRICE CONTROL ACT, AUTHORIZING THE
PRICE ADMINISTRATOR TO BRING INJUNCTION PROCEEDINGS TO ENFORCE THE ACT
IN EITHER STATE OR FEDERAL COURTS, A FEDERAL DISTRICT COURT HAS
JURISDICTION TO GRANT AN INJUNCTION SOUGHT BY THE PRICE ADMINISTRATOR
TO RESTRAIN EVICTION OF A TENANT UNDER AN ORDER OF A STATE COURT WHERE
THE ADMINISTRATOR ALLEGES THAT EVICTION WOULD VIOLATE THE ACT AND
REGULATIONS PURSUANT THERETO - NOTWITHSTANDING SEC. 265 OF THE JUDICIAL
CODE, WHICH FORBIDS FEDERAL COURTS TO GRANT INJUNCTIONS TO STAY
PROCEEDINGS IN STATE COURTS EXCEPT IN BANKRUPTCY PROCEEDINGS.  PP. 254,
255. 

PORTER, PRICE ADMINISTRATOR, V. DICKEN ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

A WRIT OF POSSESSION TO EVICT A TENANT HAVING BEEN ISSUED BY A STATE
COURT, THE PRICE ADMINISTRATOR SUED IN A FEDERAL DISTRICT COURT FOR AN
INJUNCTION TO RESTRAIN THE EVICTION.  THE DISTRICT COURT DISMISSED THE
SUIT FOR WANT OF JURISDICTION.  THE CIRCUIT COURT OF APPEALS DENIED AN
APPLICATION FOR AN INJUNCTION PROHIBITING THE EVICTION PENDING AN
APPEAL TO THAT COURT.  BEFORE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
ON THE MERITS, THIS COURT GRANTED CERTIORARI.  328 U.S. 827.  REVERSED
AND REMANDED, P. 255. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE PORTER V. LEE, ANTE, P. 246, INVOLVES THE
JURISDICTION OF THE FEDERAL DISTRICT COURT TO GRANT AN INJUNCTION,
SOUGHT BY THE PRICE ADMINISTRATOR UNDER SEC. 205(A) OF THE EMERGENCY
PRICE CONTROL ACT, TO RESTRAIN EVICTION OF A TENANT UNDER AN ORDER OF A
STATE COURT WHERE THE ADMINISTRATOR ALLEGES THAT EVICTION WOULD VIOLATE
THE ACT AND VALID REGULATIONS PROMULGATED PURSUANT TO IT.  BRIEFLY
STATED THE CIRCUMSTANCES OF THE CONTROVERSY ARE THESE:  B. M. MURRAY,
AS EXECUTOR OF AN ESTATE, PURSUANT TO AUTHORITY GRANTED HIM BY THE
PROBATE COURT OF FRANKLIN COUNTY, OHIO, SOLD A HOUSE LOCATED WITHIN THE
COLUMBUS DEFENSE RENTAL AREA.  A WRIT OF POSSESSION DIRECTING THE
SHERIFF OF THE COUNTY TO EVICT THE TENANT AND TO PLACE THE RESPONDENT
PURCHASERS IN POSSESSION WAS OBTAINED IN THE PROBATE COURT.  NO
CERTIFICATE AUTHORIZING THE EVICTION WAS SOUGHT OR OBTAINED FROM THE
PRICE ADMINISTRATOR AS IS REQUIRED BY SEC. 6 OF THE RENT REGULATION FOR
HOUSING.  10 F.R. 3436, 13528.  BEFORE THE SHERIFF EXECUTED THE WRIT
THE PRICE ADMINISTRATOR BROUGHT THIS ACTION FOR AN INJUNCTION IN THE
FEDERAL DISTRICT COURT.  THE DISTRICT COURT ISSUED A TEMPORARY
RESTRAINING ORDER BUT LATER DISMISSED THE COMPLAINT ON THE GROUND THAT
SEC. 265 OF THE JUDICIAL CODE, 28 U.S.C. 379, DEPRIVED THE FEDERAL
DISTRICT COURT OF JURISDICTION TO STAY THE PROCEEDINGS IN THE STATE
COURT.  THIS SECTION PROVIDES THAT:  "THE WRIT OF INJUNCTION SHALL NOT
BE GRANTED BY ANY COURT OF THE UNITED STATES TO STAY PROCEEDINGS IN ANY
COURT OF A STATE, EXCEPT IN CASES WHERE SUCH INJUNCTION MAY BE
AUTHORIZED BY ANY LAW RELATING TO PROCEEDINGS IN BANKRUPTCY."  THE
DISTRICT COURT IN DISMISSING THE CAUSE ENTERED AN ORDER RESTRAINING
RESPONDENTS FROM EVICTING THE TENANT PENDING DETERMINATION BY THE
CIRCUIT COURT OF APPEALS FOR AN APPLICATION FOR AN INJUNCTION
PROHIBITING THE EVICTION PENDING AN APPEAL TO THAT COURT.  THE
ADMINISTRATOR MADE THIS APPLICATION IN THE CIRCUIT COURT OF APPEALS,
BUT IT WAS DENIED, THUS REMOVING ALL OBSTACLES TO EVICTION OF THE
TENANT.  THE CIRCUIT COURT OF APPEALS HAS NOT HEARD THIS CASE.  IN
ORDER TO PREVENT EVICTION OF THE TENANT, THE ADMINISTRATOR SOUGHT AND
OBTAINED FROM MR. JUSTICE REED AN INJUNCTION PENDING FINAL DISPOSITION
OF THIS CASE IN THIS COURT AND APPLIED FOR CERTIORARI DIRECTLY TO THIS
COURT UNDER SEC. 240(A) OF THE JUDICIAL CODE, WHICH AUTHORIZES US TO
GRANT CERTIORARI "EITHER BEFORE OR AFTER A JUDGMENT OR DECREE BY SUCH
LOWER COURT  ..."  WE WERE PROMPTED TO BRING THE DISTRICT COURT'S
JUDGMENT DIRECTLY TO THIS COURT FOR REVIEW BY REASON OF THE CLOSE
RELATIONSHIP OF THE IMPORTANT QUESTION RAISED TO THE QUESTION PRESENTED
IN PORTER V. LEE, ANTE, P. 246. 

THE DISTRICT COURT WAS OF THE OPINION THAT SINCE SEC. 205(C) OF THE
ACT GAVE CONCURRENT JURISDICTION TO STATE COURTS TO GRANT RELIEF BY
INJUNCTION, THE POLICY OF SEC. 265 AGAINST FEDERAL INJUNCTIONS OF STATE
PROCEEDINGS SHOULD NOT BE CONSIDERED IMPAIRED BY THE EMERGENCY PRICE
CONTROL ACT.  THE DISTRICT COURT'S CONCLUSION WAS THAT IF THE
ADMINISTRATOR WANTED AN INJUNCTION TO RESTRAIN EVICTION UNDER STATE
COURT PROCEDURE HE SHOULD HAVE GONE INTO SOME STATE COURT THAT HAD
JURISDICTION OF THE CAUSE.  THE DISTRICT COURT ERRED IN HOLDING THAT
THE POLICY OF SEC. 265 OF THE JUDICIAL CODE SHOULD NOT BE CONSIDERED
IMPAIRED BY THE EMERGENCY PRICE CONTROL ACT.  WHILE WE REALIZE THAT
SEC. 265 EMBODIES A LONG-STANDING GOVERNMENTAL POLICY TO PREVENT
UNNECESSARY FRICTION BETWEEN STATE AND FEDERAL COURTS, TOUCEY V. NEW
YORK LIFE INSURANCE CO., 314 U.S. 118, WE STILL HOLD AS WE HELD IN
BOWLES V. WILLINGHAM, 321 U.S. 503, THAT SEC. 205 OF THE PRICE CONTROL
ACT WHICH AUTHORIZES THE PRICE ADMINISTRATOR TO SEEK INJUNCTIVE RELIEF
IN APPROPRIATE COURTS, INCLUDING FEDERAL DISTRICT COURTS, IS AN IMPLIED
LEGISLATIVE AMENDMENT TO SEC. 265, CREATING AN EXCEPTION TO ITS BROAD
PROHIBITION.  FN1  THIS IS TRUE BECAUSE SEC. 205 AUTHORIZES THE PRICE
ADMINISTRATOR TO BRING INJUNCTION PROCEEDINGS TO ENFORCE THE ACT IN
EITHER STATE OR FEDERAL COURTS, AND THIS AUTHORITY IS BROAD ENOUGH TO
JUSTIFY AN INJUNCTION TO RESTRAIN STATE COURT EVICTIONS.  BUT IF SEC.
265 CONTROLS, AS THE DISTRICT COURT HELD, THE ADMINISTRATOR HERE COULD
NOT PROCEED IN THE FEDERAL COURT, SINCE THERE IS A PROCEEDING PENDING
IN A STATE COURT.  SINCE THE PROVISIONS OF THE PRICE CONTROL ACT,
ENACTED LONG AFTER SEC. 265, DO NOT COMPEL THE ADMINISTRATOR TO GO INTO
THE STATE COURTS BUT LEAVE HIM FREE TO SEEK RELIEF IN THE FEDERAL
COURTS, HE WAS NOT BARRED BY SEC. 265 FROM SEEKING AN INJUNCTION TO
RESTRAIN AN UNLAWFUL EVICTION.  CF. HALE V. BIMCO TRADING, INC., 306
U.S. 375. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT TO EXERCISE THE JURISDICTION CONFERRED UPON IT
BY SEC. 205 OF THE EMERGENCY PRICE CONTROL ACT.  REVERSED AND
REMANDED. 

FN1  AN ALTERNATIVE REASON GIVEN FOR THE DECISION IN THE WILLINGHAM
CASE WAS THAT, SINCE THE STATE COURT THERE WAS ATTEMPTING TO ENJOIN THE
ADMINISTRATOR FROM PERFORMING HIS DUTIES UNDER THE ACT, THE DISTRICT
COURT HAD POWER BOTH UNDER SEC. 205(A) OF THE ACT AND SEC. 24(1) OF THE
JUDICIAL CODE TO PROTECT THE EXCLUSIVE FEDERAL JURISDICTION WHICH
CONGRESS HAD GRANTED.  BUT OUR OPINION DID NOT, AS THE DISTRICT COURT
THOUGHT, DEPEND ENTIRELY ON THIS ALTERNATIVE GROUND. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















UNITED STATES V. CAUSBY, 328 U.S. 256 


NO. 630.  ARGUED MAY 1, 1946.  - DECIDED MAY 27, 1946.  - 104 CT. CLS.
342, 60 F.SUPP.  751, REVERSED AND REMANDED. 


RESPONDENTS OWNED A DWELLING AND A CHICKEN FARM NEAR A MUNICIPAL
AIRPORT.  THE SAFE PATH OF GLIDE TO ONE OF THE RUNWAYS OF THE AIRPORT
PASSED DIRECTLY OVER RESPONDENTS' PROPERTY AT 83 FEET, WHICH WAS 67
FEET ABOVE THE HOUSE, 63 FEET ABOVE THE BARN AND 18 FEET ABOVE THE
HIGHEST TREE.  IT WAS USED 4% OF THE TIME IN TAKING OFF AND 7% OF THE
TIME IN LANDING.  THE GOVERNMENT LEASED THE USE OF THE AIRPORT FOR A
TERM OF ONE MONTH COMMENCING JUNE 1, 1942, WITH A PROVISION FOR
RENEWALS UNTIL JUNE 30, 1967, OR SIX MONTHS AFTER THE END OF THE
NATIONAL EMERGENCY, WHICHEVER WAS EARLIER.  VARIOUS MILITARY AIRCRAFT
OF THE UNITED STATES USED THE AIRPORT.  THEY FREQUENTLY CAME SO CLOSE
TO RESPONDENTS' PROPERTY THAT THEY BARELY MISSED THE TOPS OF TREES, THE
NOISE WAS STARTLING, AND THE GLARE FROM THEIR LANDING LIGHTS LIGHTED
THE PLACE UP BRIGHTLY AT NIGHT.  THIS DESTROYED THE USE OF THE PROPERTY
AS A CHICKEN FARM AND CAUSED LOSS OF SLEEP, NERVOUSNESS AND FRIGHT ON
THE PART OF RESPONDENTS.  THEY SUED IN THE COURT OF CLAIMS TO RECOVER
FOR AN ALLEGED TAKING OF THEIR PROPERTY AND FOR DAMAGES TO THEIR
POULTRY BUSINESS.  THE COURT OF CLAIMS FOUND THAT THE GOVERNMENT HAD
TAKEN AN EASEMENT OVER RESPONDENTS' PROPERTY AND THAT THE VALUE OF THE
PROPERTY DESTROYED AND THE EASEMENT TAKEN WAS $2,000; BUT IT MADE NO
FINDING AS TO THE PRECISE NATURE OR DURATION OF THE EASEMENT.  HELD: 

1.  A SERVITUDE HAS BEEN IMPOSED UPON THE LAND FOR WHICH RESPONDENTS
ARE ENTITLED TO COMPENSATION UNDER THE FIFTH AMENDMENT.  PP. 260-267. 

(A)  THE COMMON LAW DOCTRINE THAT OWNERSHIP OF LAND EXTENDS TO THE
PERIPHERY OF THE UNIVERSE HAS NO PLACE IN THE MODERN WORLD.  PP. 260,
261. 

(B)  THE AIR ABOVE THE MINIMUM SAFE ALTITUDE OF FLIGHT PRESCRIBED BY
THE CIVIL AERONAUTICS AUTHORITY IS A PUBLIC HIGHWAY AND PART OF THE
PUBLIC DOMAIN, AS DECLARED BY CONGRESS IN THE AIR COMMERCE ACT OF 1926,
AS AMENDED BY THE CIVIL AERONAUTICS ACT OF 1938.  PP. 260, 261, 266. 

(C)  FLIGHTS BELOW THAT ALTITUDE ARE NOT WITHIN THE NAVIGABLE AIR
SPACE WHICH CONGRESS PLACED WITHIN THE PUBLIC DOMAIN, EVEN THOUGH THEY
ARE WITHIN THE PATH OF GLIDE APPROVED BY THE CIVIL AERONAUTICS
AUTHORITY.  PP. 263, 264. 

(D)  FLIGHTS OF AIRCRAFT OVER PRIVATE LAND WHICH ARE SO LOW AND
FREQUENT AS TO BE A DIRECT AND IMMEDIATE INTERFERENCE WITH THE
ENJOYMENT AND USE OF THE LAND ARE AS MUCH AN APPROPRIATION OF THE USE
OF THE LAND AS A MORE CONVENTIONAL ENTRY UPON IT.  PP. 261, 262, 264
267. 

2.  SINCE THERE WAS A TAKING OF PRIVATE PROPERTY FOR PUBLIC USE, THE
CLAIM WAS "FOUNDED UPON THE CONSTITUTION," WITHIN THE MEANING OF SEC.
141(1) OF THE JUDICIAL CODE, AND THE COURT OF CLAIMS HAD JURISDICTION
TO HEAR AND DETERMINE IT.  P. 267. 

3.  SINCE THE COURT'S FINDINGS OF FACT CONTAIN NO PRECISE DESCRIPTION
OF THE NATURE OR DURATION OF THE EASEMENT TAKEN, THE JUDGMENT IS
REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF CLAIMS, SO THAT IT
MAY MAKE THE NECESSARY FINDINGS.  PP. 267, 268. 

(A)  AN ACCURATE DESCRIPTION OF THE EASEMENT TAKEN IS ESSENTIAL, SINCE
THAT INTEREST VESTS IN THE UNITED STATES.  P. 267. 

(B)  FINDINGS OF FACT ON EVERY "MATERIAL ISSUE" ARE A STATUTORY
REQUIREMENT, AND A DEFICIENCY IN THE FINDINGS CAN NOT BE RECTIFIED BY
STATEMENTS IN THE OPINION.  PP. 267, 268. 

(C)  A CONJECTURE IN LIEU OF A CONCLUSION FROM EVIDENCE WOULD NOT BE
A PROPER FOUNDATION FOR LIABILITY OF THE UNITED STATES.  P. 268. 

UNITED STATES V. CAUSBY ET UX. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE COURT OF CLAIMS GRANTED RESPONDENTS A JUDGMENT FOR THE VALUE OF
PROPERTY DESTROYED AND DAMAGE TO THEIR PROPERTY RESULTING FROM THE
TAKING OF AN EASEMENT OVER THEIR PROPERTY BY LOW-FLYING MILITARY
AIRCRAFT OF THE UNITED STATES, BUT FAILED TO INCLUDE IN ITS FINDINGS OF
FACT A SPECIFIC DESCRIPTION OF THE NATURE OR DURATION OF THE EASEMENT. 
104 CT. CLS. 342, 60 F.SUPP.  751.  THIS COURT GRANTED CERTIORARI.  327
U.S. 775.  REVERSED AND REMANDED, P. 268. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A CASE OF FIRST IMPRESSION.  THE PROBLEM PRESENTED IS WHETHER
RESPONDENTS' PROPERTY WAS TAKEN, WITHIN THE MEANING OF THE FIFTH
AMENDMENT, BY FREQUENT AND REGULAR FLIGHTS OF ARMY AND NAVY AIRCRAFT
OVER RESPONDENTS' LAND AT LOW ALTITUDES.  THE COURT OF CLAIMS HELD THAT
THERE WAS A TAKING AND ENTERED JUDGMENT FOR RESPONDENTS, ONE JUDGE
DISSENTING.  104 CT. CLS. 342, 60 F.SUPP.  751.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
IMPORTANCE OF THE QUESTION PRESENTED. 

RESPONDENTS OWN 2.8 ACRES NEAR AN AIRPORT OUTSIDE OF GREENSBORO,
NORTH CAROLINA.  IT HAS ON IT A DWELLING HOUSE, AND ALSO VARIOUS
OUTBUILDINGS WHICH WERE MAINLY USED FOR RAISING CHICKENS.  THE END OF
THE AIRPORT'S NORTHWEST-SOUTHEAST RUNWAY IS 2,220 FEET FROM
RESPONDENTS' BARN AND 2,275 FEET FROM THEIR HOUSE.  THE PATH OF GLIDE
TO THIS RUNWAY PASSES DIRECTLY OVER THE PROPERTY - WHICH IS 100 FEET
WIDE AND 1,200 FEET LONG.  THE 30 TO 1 SAFE GLIDE ANGLE  FN1  APPROVED
BY THE CIVIL AERONAUTICS AUTHORITY N2 PASSES OVER THIS PROPERTY AT 83
FEET, WHICH IS 67 FEET ABOVE THE HOUSE, 63 FEET ABOVE THE BARN AND 18
FEET ABOVE THE HIGHEST TREE.  FN3  THE USE BY THE UNITED STATES OF THIS
AIRPORT IS PURSUANT TO A LEASE EXECUTED IN MAY, 1942, FOR A TERM
COMMENCING JUNE 1, 1942 AND ENDING JUNE 30, 1942, WITH A PROVISION FOR
RENEWALS UNTIL JUNE 30, 1967, OR SIX MONTHS AFTER THE END OF THE
NATIONAL EMERGENCY, WHICHEVER IS THE EARLIER. 

VARIOUS AIRCRAFT OF THE UNITED STATES USE THIS AIRPORT - BOMBERS,
TRANSPORTS AND FIGHTERS.  THE DIRECTION OF THE PREVAILING WIND
DETERMINES WHEN A PARTICULAR RUNWAY IS USED.  THE NORTHWEST-SOUTHEAST
RUNWAY IN QUESTION IS USED ABOUT FOUR PER CENT OF THE TIME IN TAKING
OFF AND ABOUT SEVEN PER CENT OF THE TIME IN LANDING.  SINCE THE UNITED
STATES BEGAN OPERATIONS IN MAY, 1942, ITS FOUR-MOTORED HEAVY BOMBERS,
OTHER PLANES OF THE HEAVIER TYPE, AND ITS FIGHTER PLANES HAVE
FREQUENTLY PASSED OVER RESPONDENTS' LAND AND BUILDINGS IN CONSIDERABLE
NUMBERS AND RATHER CLOSE TOGETHER.  THEY COME CLOSE ENOUGH AT TIMES TO
APPEAR BARELY TO MISS THE TOPS OF THE TREES AND AT TIMES SO CLOSE TO
THE TOPS OF THE TREES AS TO BLOW THE OLD LEAVES OFF.  THE NOISE IS
STARTLING.  AND AT NIGHT THE GLARE FROM THE PLANES BRIGHTLY LIGHTS UP
THE PLACE.  AS A RESULT OF THE NOISE, RESPONDENTS HAD TO GIVE UP THEIR
CHICKEN BUSINESS.  AS MANY AS SIX TO TEN OF THEIR CHICKENS WERE KILLED
IN ONE DAY BY FLYING INTO THE WALLS FROM FRIGHT.  THE TOTAL CHICKENS
LOST IN THAT MANNER WAS ABOUT 150.  PRODUCTION ALSO FELL OFF.  THE
RESULT WAS THE DESTRUCTION OF THE USE OF THE PROPERTY AS A COMMERCIAL
CHICKEN FARM.  RESPONDENTS ARE FREQUENTLY DEPRIVED OF THEIR SLEEP AND
THE FAMILY HAS BECOME NERVOUS AND FRIGHTENED.  ALTHOUGH THERE HAVE BEEN
NO AIRPLANE ACCIDENTS ON RESPONDENTS' PROPERTY, THERE HAVE BEEN SEVERAL
ACCIDENTS NEAR THE AIRPORT AND CLOSE TO RESPONDENTS' PLACE.  THESE ARE
THE ESSENTIAL FACTS FOUND BY THE COURT OF CLAIMS.  ON THE BASIS OF
THESE FACTS, IT FOUND THAT RESPONDENTS' PROPERTY HAD DEPRECIATED IN
VALUE.  IT HELD THAT THE UNITED STATES HAD TAKEN AN EASEMENT OVER THE
PROPERTY ON JUNE 1, 1942, AND THAT THE VALUE OF THE PROPERTY DESTROYED
AND THE EASEMENT TAKEN WAS $2,000. 

I. THE UNITED STATES RELIES ON THE AIR COMMERCE ACT OF 1926, 44 STAT.
568, 49 U.S.C. SEC. 171, AS AMENDED BY THE CIVIL AERONAUTICS ACT OF
1938, 52 STAT. 973, 49 U.S.C. SEC. 401.  UNDER THOSE STATUTES THE
UNITED STATES HAS "COMPLETE AND EXCLUSIVE NATIONAL SOVEREIGNTY IN THE
AIR SPACE" OVER THIS COUNTRY.  49 U.S.C. SEC. 176(A).  THEY GRANT ANY
CITIZEN OF THE UNITED STATES "A PUBLIC RIGHT OF FREEDOM OF TRANSIT IN
AIR COMMERCE  FN4  THROUGH THE NAVIGABLE AIR SPACE OF THE UNITED
STATES."  49 U.S.C. SEC. 403.  AND "NAVIGABLE AIR SPACE" IS DEFINED AS
"AIRSPACE ABOVE THE MINIMUM SAFE ALTITUDES OF FLIGHT PRESCRIBED BY THE
CIVIL AERONAUTICS AUTHORITY."  49 U.S.C. SEC. 180.  AND IT IS PROVIDED
THAT "SUCH NAVIGABLE AIRSPACE SHALL BE SUBJECT TO A PUBLIC RIGHT OF
FREEDOM OF INTERSTATE AND FOREIGN AIR NAVIGATION."  ID.  IT IS,
THEREFORE, ARGUED THAT SINCE THESE FLIGHTS WERE WITHIN THE MINIMUM SAFE
ALTITUDES OF FLIGHT WHICH HAD BEEN PRESCRIBED, THEY WERE AN EXERCISE OF
THE DECLARED RIGHT OF TRAVEL THROUGH THE AIRSPACE.  THE UNITED STATES
CONCLUDES THAT WHEN FLIGHTS ARE MADE WITHIN THE NAVIGABLE AIRSPACE
WITHOUT ANY PHYSICAL INVASION OF THE PROPERTY OF THE LANDOWNERS, THERE
HAS BEEN NO TAKING OF PROPERTY.  IT SAYS THAT AT MOST THERE WAS MERELY
INCIDENTAL DAMAGE OCCURRING AS A CONSEQUENCE OF AUTHORIZED AIR
NAVIGATION.  IT ALSO ARGUES THAT THE LANDOWNER DOES NOT OWN
SUPERADJACENT AIRSPACE WHICH HE HAS NOT SUBJECTED TO POSSESSION BY THE
ERECTION OF STRUCTURES OR OTHER OCCUPANCY.  MOREOVER, IT IS ARGUED THAT
EVEN IF THE UNITED STATES TOOK AIRSPACE OWNED BY RESPONDENTS, NO
COMPENSABLE DAMAGE WAS SHOWN.  ANY DAMAGES ARE SAID TO BE MERELY
CONSEQUENTIAL FOR WHICH NO COMPENSATION MAY BE OBTAINED UNDER THE FIFTH
AMENDMENT. 

IT IS ANCIENT DOCTRINE THAT AT COMMON LAW OWNERSHIP OF THE LAND
EXTENDED TO THE PERIPHERY OF THE UNIVERSE - CUJUS EST SOLUM EJUS EST
USQUE AD COELUM.  FN5  BUT THAT DOCTRINE HAS NO PLACE IN THE MODERN
WORLD.  THE AIR IS A PUBLIC HIGHWAY, AS CONGRESS HAS DECLARED.  WERE
THAT NOT TRUE, EVERY TRANSCONTINENTAL FLIGHT WOULD SUBJECT THE OPERATOR
TO COUNTLESS TRESPASS SUITS.  COMMON SENSE REVOLTS AT THE IDEA.  TO
RECOGNIZE SUCH PRIVATE CLAIMS TO THE AIRSPACE WOULD CLOG THESE
HIGHWAYS, SERIOUSLY INTERFERE WITH THEIR CONTROL AND DEVELOPMENT IN THE
PUBLIC INTEREST, AND TRANSFER INTO PRIVATE OWNERSHIP THAT TO WHICH ONLY
THE PUBLIC HAS A JUST CLAIM. 

BUT THAT GENERAL PRINCIPLE DOES NOT CONTROL THE PRESENT CASE.  FOR
THE UNITED STATES CONCEDED ON ORAL ARGUMENT THAT IF THE FLIGHTS OVER
RESPONDENTS' PROPERTY RENDERED IT UNINHABITABLE, THERE WOULD BE A
TAKING COMPENSABLE UNDER THE FIFTH AMENDMENT.  IT IS THE OWNER'S LOSS,
NOT THE TAKER'S GAIN, WHICH IS THE MEASURE OF THE VALUE OF THE PROPERTY
TAKEN.  UNITED STATES V. MILLER, 317 U.S. 369.  MARKET VALUE FAIRLY
DETERMINED IS THE NORMAL MEASURE OF THE RECOVERY.  ID.  AND THAT VALUE
MAY REFLECT THE USE TO WHICH THE LAND COULD READILY BE CONVERTED, AS
WELL AS THE EXISTING USE.  UNITED STATES V. POWELSON, 319 U.S. 266,
275, AND CASES CITED.  IF, BY REASON OF THE FREQUENCY AND ALTITUDE OF
THE FLIGHTS, RESPONDENTS COULD NOT USE THIS LAND FOR ANY PURPOSE, THEIR
LOSS WOULD BE COMPLETE.  FN6 IT WOULD BE AS COMPLETE AS IF THE UNITED
STATES HAD ENTERED UPON THE SURFACE OF THE LAND AND TAKEN EXCLUSIVE
POSSESSION OF IT. 

WE AGREE THAT IN THOSE CIRCUMSTANCES THERE WOULD BE A TAKING.  THOUGH
IT WOULD BE ONLY AN EASEMENT OF FLIGHT WHICH WAS TAKEN, THAT EASEMENT,
IF PERMANENT AND NOT MERELY TEMPORARY, NORMALLY WOULD BE THE EQUIVALENT
OF A FEE INTEREST.  IT WOULD BE A DEFINITE EXERCISE OF COMPLETE
DOMINION AND CONTROL OVER THE SURFACE OF THE LAND.  THE FACT THAT THE
PLANES NEVER TOUCHED THE SURFACE WOULD BE AS IRRELEVANT AS THE ABSENCE
IN THIS DAY OF THE FEUDAL LIVERY OF SEISIN ON THE TRANSFER OF REAL
ESTATE.  THE OWNER'S RIGHT TO POSSESS AND EXPLOIT THE LAND - THAT IS TO
SAY, HIS BENEFICIAL OWNERSHIP OF IT - WOULD BE DESTROYED.  IT WOULD NOT
BE A CASE OF INCIDENTAL DAMAGES ARISING FROM A LEGALIZED NUISANCE SUCH
AS WAS INVOLVED IN RICHARDS V. WASHINGTON TERMINAL CO., 233 U.S. 546. 
IN THAT CASE, PROPERTY OWNERS WHOSE LANDS ADJOINED A RAILROAD LINE WERE
DENIED RECOVERY FOR DAMAGES RESULTING FROM THE NOISE, VIBRATIONS, SMOKE
AND THE LIKE, INCIDENTAL TO THE OPERATIONS OF THE TRAINS.  IN THE
SUPPOSED CASE, THE LINE OF FLIGHT IS OVER THE LAND.  AND THE LAND IS
APPROPRIATED AS DIRECTLY AND COMPLETELY AS IF IT WERE USED FOR THE
RUNWAYS THEMSELVES. 

THERE IS NO MATERIAL DIFFERENCE BETWEEN THE SUPPOSED CASE AND THE
PRESENT ONE, EXCEPT THAT HERE ENJOYMENT AND USE OF THE LAND ARE NOT
COMPLETELY DESTROYED.  BUT THAT DOES NOT SEEM TO US TO BE CONTROLLING. 
THE PATH OF GLIDE FOR AIRPLANES MIGHT REDUCE A VALUABLE FACTORY SITE TO
GRAZING LAND, AN ORCHARD TO A VEGETABLE PATCH, A RESIDENTIAL SECTION TO
A WHEAT FIELD.  SOME VALUE WOULD REMAIN.  BUT THE USE OF THE AIRSPACE
IMMEDIATELY ABOVE THE LAND WOULD LIMIT THE UTILITY OF THE LAND AND
CAUSE A DIMINUTION IN ITS VALUE.  FN7  THAT WAS THE PHILOSOPHY OF
PORTSMOUTH CO. V. UNITED STATES, 260 U.S. 327.  IN THAT CASE THE
PETITION ALLEGED THAT THE UNITED STATES ERECTED A FORT ON NEARBY LAND,
ESTABLISHED A BATTERY AND A FIRE CONTROL STATION THERE, AND FIRED GUNS
OVER PETITIONER'S LAND.  THE COURT, SPEAKING THROUGH MR. JUSTICE
HOLMES, REVERSED THE COURT OF CLAIMS, WHICH DISMISSED THE PETITION ON A
DEMURRER, HOLDING THAT "THE SPECIFIC FACTS SET FORTH WOULD WARRANT A
FINDING THAT A SERVITUDE HAS BEEN IMPOSED."  FN8  260 U.S. P. 330.  AND
SEE DELTA AIR CORP. V. KERSEY, 193 GA. 862, 20 S.E.2D 245.  CF. UNITED
STATES V. 357.25 ACRES OF LAND, 55 F.SUPP.  461. 

THE FACT THAT THE PATH OF GLIDE TAKEN BY THE PLANES WAS THAT APPROVED
BY THE CIVIL AERONAUTICS AUTHORITY DOES NOT CHANGE THE RESULT.  THE
NAVIGABLE AIRSPACE WHICH CONGRESS HAS PLACED IN THE PUBLIC DOMAIN IS
"AIRSPACE ABOVE THE MINIMUM SAFE ALTITUDES OF FLIGHT PRESCRIBED BY THE
CIVIL AERONAUTICS AUTHORITY."  49 U.S.C. SEC. 180.  IF THAT AGENCY
PRESCRIBED 83 FEET AS THE MINIMUM SAFE ALTITUDE, THEN WE WOULD HAVE
PRESENTED THE QUESTION OF THE VALIDITY OF THE REGULATION.  BUT NOTHING
OF THE SORT HAS BEEN DONE.  THE PATH OF GLIDE GOVERNS THE METHOD OF
OPERATING - OF LANDING OR TAKING OFF.  THE ALTITUDE REQUIRED FOR THAT
OPERATION IS NOT THE MINIMUM SAFE ALTITUDE OF FLIGHT WHICH IS THE
DOWNWARD REACH OF THE NAVIGABLE AIRSPACE.  THE MINIMUM PRESCRIBED BY
THE AUTHORITY IS 500 FEET DURING THE DAY AND 1,000 FEET AT NIGHT FOR
AIR CARRIERS (CIVIL AIR REGULATIONS, PT. 61, SECS. 61.7400, 61.7401,
CODE FED. REG. CUM. SUPP., TIT. 14, CH. 1), AND FROM 300 FEET TO 1,000
FEET FOR OTHER AIRCRAFT, DEPENDING ON THE TYPE OF PLANE AND THE
CHARACTER OF THE TERRAIN.  ID., PT. 60, SECS. 60.350-60.3505, FED. REG.
CUM. SUPP., SUPRA.  HENCE, THE FLIGHTS IN QUESTION WERE NOT WITHIN THE
NAVIGABLE AIRSPACE WHICH CONGRESS PLACED WITHIN THE PUBLIC DOMAIN.  IF
ANY AIRSPACE NEEDED FOR LANDING OR TAKING OFF WERE INCLUDED, FLIGHTS
WHICH WERE SO CLOSE TO THE LAND AS TO RENDER IT UNINHABITABLE WOULD BE
IMMUNE.  BUT THE UNITED STATES CONCEDES, AS WE HAVE SAID, THAT IN THAT
EVENT THERE WOULD BE A TAKING.  THUS, IT IS APPARENT THAT THE PATH OF
GLIDE IS NOT THE MINIMUM SAFE ALTITUDE OF FLIGHT WITHIN THE MEANING OF
THE STATUTE.  THE CIVIL AERONAUTICS AUTHORITY HAS, OF COURSE, THE POWER
TO PRESCRIBE AIR TRAFFIC RULES.  BUT CONGRESS HAS DEFINED NAVIGABLE
AIRSPACE ONLY IN TERMS OF ONE OF THEM - THE MINIMUM SAFE ALTITUDES OF
FLIGHT. 

WE HAVE SAID THAT THE AIRSPACE IS A PUBLIC HIGHWAY.  YET IT IS
OBVIOUS THAT IF THE LANDOWNER IS TO HAVE FULL ENJOYMENT OF THE LAND, HE
MUST HAVE EXCLUSIVE CONTROL OF THE IMMEDIATE REACHES OF THE ENVELOPING
ATMOSPHERE.  OTHERWISE BUILDINGS COULD NOT BE ERECTED, TREES COULD NOT
BE PLANTED, AND EVEN FENCES COULD NOT BE RUN.  THE PRINCIPLE IS
RECOGNIZED WHEN THE LAW GIVES A REMEDY IN CASE OVERHANGING STRUCTURES
ARE ERECTED ON ADJOINING LAND.  FN9  THE LANDOWNER OWNS AT LEAST AS
MUCH OF THE SPACE ABOVE THE GROUND AS HE CAN OCCUPY OR USE IN
CONNECTION WITH THE LAND.  SEE HINMAN V. PACIFIC AIR TRANSPORT, 84 F.2D
755.  THE FACT THAT HE DOES NOT OCCUPY IT IN A PHYSICAL SENSE - BY THE
ERECTION OF BUILDINGS AND THE LIKE - IS NOT MATERIAL.  AS WE HAVE SAID,
THE FLIGHT OF AIRPLANES, WHICH SKIM THE SURFACE BUT DO NOT TOUCH IT, IS
AS MUCH AN APPROPRIATION OF THE USE OF THE LAND AS A MORE CONVENTIONAL
ENTRY UPON IT.  WE WOULD NOT DOUBT THAT, IF THE UNITED STATES ERECTED
AN ELEVATED RAILWAY OVER RESPONDENTS' LAND AT THE PRECISE ALTITUDE
WHERE ITS PLANES NOW FLY, THERE WOULD BE A PARTIAL TAKING, EVEN THOUGH
NONE OF THE SUPPORTS OF THE STRUCTURE RESTED ON THE LAND.  FN10  THE
REASON IS THAT THERE WOULD BE AN INTRUSION SO IMMEDIATE AND DIRECT AS
TO SUBTRACT FROM THE OWNER'S FULL ENJOYMENT OF THE PROPERTY AND TO
LIMIT HIS EXPLOITATION OF IT. WHILE THE OWNER DOES NOT IN ANY PHYSICAL
MANNER OCCUPY THAT STRATUM OF AIRSPACE OR MAKE USE OF IT IN THE
CONVENTIONAL SENSE, HE DOES USE IT IN SOMEWHAT THE SAME SENSE THAT
SPACE LEFT BETWEEN BUILDINGS FOR THE PURPOSE OF LIGHT AND AIR IS USED. 
THE SUPERADJACENT AIRSPACE AT THIS LOW ALTITUDE IS SO CLOSE TO THE LAND
THAT CONTINUOUS INVASIONS OF IT AFFECT THE USE OF THE SURFACE OF THE
LAND ITSELF.  WE THINK THAT THE LANDOWNER, AS AN INCIDENT TO HIS
OWNERSHIP, HAS A CLAIM TO IT AND THAT INVASIONS OF IT ARE IN THE SAME
CATEGORY AS INVASIONS OF THE SURFACE.  FN11    IN THIS CASE, AS IN
PORTSMOUTH CO. V. UNITED STATES, SUPRA, THE DAMAGES WERE NOT MERELY
CONSEQUENTIAL.  THEY WERE THE PRODUCT OF A DIRECT INVASION OF
RESPONDENTS' DOMAIN.  AS STATED IN UNITED STATES V. CRESS, 243 U.S.
316, 328, "...  IT IS THE CHARACTER OF THE INVASION, NOT THE AMOUNT OF
DAMAGE RESULTING FROM IT, SO LONG AS THE DAMAGE IS SUBSTANTIAL, THAT
DETERMINES THE QUESTION WHETHER IT IS A TAKING." 

WE SAID IN UNITED STATES V. POWELSON, SUPRA, P. 279, THAT WHILE THE
MEANING OF "PROPERTY" AS USED IN THE FIFTH AMENDMENT WAS A FEDERAL
QUESTION, "IT WILL NORMALLY OBTAIN ITS CONTENT BY REFERENCE TO LOCAL
LAW."  IF WE LOOK TO NORTH CAROLINA LAW, WE REACH THE SAME RESULT. 
SOVEREIGNTY IN THE AIRSPACE RESTS IN THE STATE "EXCEPT WHERE GRANTED TO
AND ASSUMED BY THE UNITED STATES."  GEN. STATS. 1943, SEC. 63-11.  THE
FLIGHT OF AIRCRAFT IS LAWFUL "UNLESS AT SUCH A LOW ALTITUDE AS TO
INTERFERE WITH THE THEN EXISTING USE TO WHICH THE LAND OR WATER, OR THE
SPACE OVER THE LAND OR WATER, IS PUT BY THE OWNER, OR UNLESS SO
CONDUCTED AS TO BE IMMINENTLY DANGEROUS TO PERSONS OR PROPERTY LAWFULLY
ON THE LAND OR WATER BENEATH."  ID., SEC. 63-13.  SUBJECT TO THAT RIGHT
OF FLIGHT, "OWNERSHIP OF THE SPACE ABOVE THE LANDS AND WATERS OF THIS
STATE IS DECLARED TO BE VESTED IN THE SEVERAL OWNERS OF THE SURFACE
BENEATH  ..."  ID., SEC. 63-12.  OUR HOLDING THAT THERE WAS AN INVASION
OF RESPONDENTS' PROPERTY IS THUS NOT INCONSISTENT WITH THE LOCAL LAW
GOVERNING A LANDOWNER'S CLAIM TO THE IMMEDIATE REACHES OF THE
SUPERADJACENT AIRSPACE. 

THE AIRPLANE IS PART OF THE MODERN ENVIRONMENT OF LIFE, AND THE
INCONVENIENCES WHICH IT CAUSES ARE NORMALLY NOT COMPENSABLE UNDER THE
FIFTH AMENDMENT.  THE AIRSPACE, APART FROM THE IMMEDIATE REACHES ABOVE
THE LAND, IS PART OF THE PUBLIC DOMAIN.  WE NEED NOT DETERMINE AT THIS
TIME WHAT THOSE PRECISE LIMITS ARE.  FLIGHTS OVER PRIVATE LAND ARE NOT
A TAKING, UNLESS THEY ARE SO LOW AND SO FREQUENT AS TO BE A DIRECT AND
IMMEDIATE INTERFERENCE WITH THE ENJOYMENT AND USE OF THE LAND.  WE NEED
NOT SPECULATE ON THAT PHASE OF THE PRESENT CASE.  FOR THE FINDINGS OF
THE COURT OF CLAIMS PLAINLY ESTABLISH THAT THERE WAS A DIMINUTION IN
VALUE OF THE PROPERTY AND THAT THE FREQUENT, LOW-LEVEL FLIGHTS WERE THE
DIRECT AND IMMEDIATE CAUSE.  WE AGREE WITH THE COURT OF CLAIMS THAT A
SERVITUDE HAS BEEN IMPOSED UPON THE LAND. 

II.  BY SEC. 145(1) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 250(1), THE
COURT OF CLAIMS HAS JURISDICTION TO HEAR AND DETERMINE "ALL CLAIMS
(EXCEPT FOR PENSIONS) FOUNDED UPON THE CONSTITUTION OF THE UNITED
STATES OR  ...  UPON ANY CONTRACT, EXPRESS OR IMPLIED, WITH THE
GOVERNMENT OF THE UNITED STATES  ..." 

WE NEED NOT DECIDE WHETHER REPEATED TRESPASSES MIGHT GIVE RISE TO AN
IMPLIED CONTRACT.  CF. PORTSMOUTH CO. V. UNITED STATES, SUPRA.  IF
THERE IS A TAKING, THE CLAIM IS "FOUNDED UPON THE CONSTITUTION" AND
WITHIN THE JURISDICTION OF THE COURT OF CLAIMS TO HEAR AND DETERMINE. 
SEE HOLLISTER V. BENEDICT MFG. CO., 113 U.S. 59, 67; HURLEY V. KINCAID,
285 U.S. 95, 104; YEARSLEY V. ROSS CONSTRUCTION CO., 309 U.S. 18, 21. 
THUS, THE JURISDICTION OF THE COURT OF CLAIMS IN THIS CASE IS CLEAR. 

III.  THE COURT OF CLAIMS HELD, AS WE HAVE NOTED, THAT AN EASEMENT
WAS TAKEN.  BUT THE FINDINGS OF FACT CONTAIN NO PRECISE DESCRIPTION AS
TO ITS NATURE.  IT IS NOT DESCRIBED IN TERMS OF FREQUENCY OF FLIGHT,
PERMISSIBLE ALTITUDE, OR TYPE OF AIRPLANE.  NOR IS THERE A FINDING AS
TO WHETHER THE EASEMENT TAKEN WAS TEMPORARY OR PERMANENT.  YET AN
ACCURATE DESCRIPTION OF THE PROPERTY TAKEN IS ESSENTIAL, SINCE THAT
INTEREST VESTS IN THE UNITED STATES.  UNITED STATES V. CRESS, SUPRA,
328-329 AND CASES CITED.  IT IS TRUE THAT THE COURT OF CLAIMS STATED IN
ITS OPINION THAT THE EASEMENT TAKEN WAS PERMANENT.  BUT THE DEFICIENCY
IN FINDINGS CANNOT BE RECTIFIED BY STATEMENTS IN THE OPINION.  UNITED
STATES V. ESNAULT-PELTERIE, 299 U.S. 201, 205-206; UNITED STATES V.
SEMINOLE NATION, 299 U.S. 417, 422.  FINDINGS OF FACT ON EVERY
"MATERIAL ISSUE" ARE A STATUTORY REQUIREMENT.  53 STAT. 752, 28 U.S.C.
SEC. 288.  THE IMPORTANCE OF FINDINGS OF FACT BASED ON EVIDENCE IS
EMPHASIZED HERE BY THE COURT OF CLAIMS' TREATMENT OF THE NATURE OF THE
EASEMENT.  IT STATED IN ITS OPINION THAT THE EASEMENT WAS PERMANENT
BECAUSE THE UNITED STATES "NO DOUBT INTENDED TO MAKE SOME SORT OF
ARRANGEMENT WHEREBY IT COULD USE THE AIRPORT FOR ITS MILITARY PLANES
WHENEVER IT HAD OCCASION TO DO SO."  THAT SOUNDS MORE LIKE CONJECTURE
RATHER THAN A CONCLUSION FROM EVIDENCE; AND IF SO, IT WOULD NOT BE A
PROPER FOUNDATION FOR LIABILITY OF THE UNITED STATES.  WE DO NOT STOP
TO EXAMINE THE EVIDENCE TO DETERMINE WHETHER IT WOULD SUPPORT SUCH A
FINDING, IF MADE.  FOR THAT IS NOT OUR FUNCTION.  UNITED STATES V.
ESNAULT-PELTERIE, SUPRA, P. 206. 

SINCE ON THIS RECORD IT IS NOT CLEAR WHETHER THE EASEMENT TAKEN IS A
PERMANENT OR A TEMPORARY ONE, IT WOULD BE PREMATURE FOR US TO CONSIDER
WHETHER THE AMOUNT OF THE AWARD MADE BY THE COURT OF CLAIMS WAS
PROPER. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF
CLAIMS SO THAT IT MAY MAKE THE NECESSARY FINDINGS IN CONFORMITY WITH
THIS OPINION.  REVERSED. 

FN1  A 30 TO 1 GLIDE ANGLE MEANS ONE FOOT OF ELEVATION OR DESCENT FOR
EVERY 30 FEET OF HORIZONTAL DISTANCE. 

FN2  MILITARY PLANES ARE SUBJECT TO THE RULES OF THE CIVIL
AERONAUTICS BOARD WHERE, AS IN THE PRESENT CASE, THERE ARE NO ARMY OR
NAVY REGULATIONS TO THE CONTRARY.  CAMERON V. CIVIL AERONAUTICS BOARD,
140 F.2D 482. 

FN3  THE HOUSE IS APPROXIMATELY 16 FEET HIGH, THE BARN 20 FEET, AND
THE TALLEST TREE 65 FEET. 

FN4  "AIR COMMERCE" IS DEFINED AS INCLUDING "ANY OPERATION OR
NAVIGATION OF AIRCRAFT WHICH DIRECTLY AFFECTS, OR WHICH MAY ENDANGER
SAFETY IN, INTERSTATE, OVERSEAS, OR FOREIGN AIR COMMERCE."  49 U.S.C.
SEC. 401(3). 

FN5  1 COKE, INSTITUTES (19TH ED. 1832) CH. 1, SEC. 1(4A); 2
BLACKSTONE, COMMENTARIES (LEWIS ED. 1902) P. 18; 3 KENT, COMMENTARIES
(GOULD ED. 1896) P. 621. 

FN6  THE DESTRUCTION OF ALL USES OF THE PROPERTY BY FLOODING HAS BEEN
HELD TO CONSTITUTE A TAKING.  PUMPELLY V. GREEN BAY CO., 13 WALL.  166;
UNITED STATES V. LYNAH, 188 U.S. 445; UNITED STATES V. WELCH, 217 U.S.
333. 

FN7  IT WAS STATED IN UNITED STATES V. GENERAL MOTORS CORP., 323 U.S.
373, 378, "THE COURTS HAVE HELD THAT THE DEPRIVATION OF THE FORMER
OWNER RATHER THAN THE ACCRETION OF A RIGHT OR INTEREST TO THE SOVEREIGN
CONSTITUTES THE TAKING.  GOVERNMENTAL ACTION SHORT OF ACQUISITION OF
TITLE OR OCCUPANCY HAS BEEN HELD, IF ITS EFFECTS ARE SO COMPLETE AS TO
DEPRIVE THE OWNER OF ALL OR MOST OF HIS INTEREST IN THE SUBJECT MATTER,
TO AMOUNT TO A TAKING."  THE PRESENT CASE FALLS SHORT OF THE GENERAL
MOTORS CASE.  THIS IS NOT A CASE WHERE THE UNITED STATES HAS MERELY
DESTROYED PROPERTY.  IT IS USING A PART OF IT FOR THE FLIGHT OF ITS
PLANES. 

CF. WARREN TOWNSHIP SCHOOL DIST. V. DETROIT, 308 MICH. 460, 14 N.W.2D
134; SMITH V. NEW ENGLAND AIRCRAFT CO., 270 MASS. 511, 170 N.E. 385;
BURNHAM V. BEVERLY AIRWAYS, INC., 311 MASS. 628, 42 N.E.2D 575. 

FN8  ON REMAND THE ALLEGATIONS IN THE PETITION WERE FOUND NOT TO BE
SUPPORTED BY THE FACTS.  64 CT. CLS. 572. 

FN9  BATEN'S CASE, 9 COKE R. 53B; MEYER V. METZLER, 51 CAL. 142;
CODMAN V. EVANS, 89 MASS. 431; HARRINGTON V. MCCARTHY, 169 MASS. 492,
48 N.E. 278.  SEE BALL, THE VERTICAL EXTENT OF OWNERSHIP IN LAND, 76 U.
PA. L. REV. 631, 658-671. 

FN10  IT WAS HELD IN BUTLER V. FRONTIER TELEPHONE CO., 186 N.Y. 486,
79 N.E. 716, THAT EJECTMENT WOULD LIE WHERE A TELEPHONE WIRE WAS STRUNG
ACROSS THE PLAINTIFF'S PROPERTY, EVEN THOUGH IT DID NOT TOUCH THE
SOIL.  THE COURT STATED, PP. 491-492:  "...  AN OWNER IS ENTITLED TO
THE ABSOLUTE AND UNDISTURBED POSSESSION OF EVERY PART OF HIS PREMISES,
INCLUDING THE SPACE ABOVE, AS MUCH AS A MINE BENEATH.  IF THE WIRE HAD
BEEN A HUGE CABLE, SEVERAL INCHES THICK AND BUT A FOOT ABOVE THE
GROUND, THERE WOULD HAVE BEEN A DIFFERENCE IN DEGREE, BUT NOT IN
PRINCIPLE.  EXPAND THE WIRE INTO A BEAM SUPPORTED BY POSTS STANDING
UPON ABUTTING LOTS WITHOUT TOUCHING THE SURFACE OF PLAINTIFF'S LAND,
AND THE DIFFERENCE WOULD STILL BE ONE OF DEGREE ONLY.  ENLARGE THE BEAM
INTO A BRIDGE, AND YET SPACE ONLY WOULD BE OCCUPIED.  ERECT A HOUSE
UPON THE BRIDGE, AND THE AIR ABOVE THE SURFACE OF THE LAND WOULD ALONE
BE DISTURBED." 

FN11  SEE BOUVE, PRIVATE OWNERSHIP OF NAVIGABLE AIRSPACE UNDER THE
COMMERCE CLAUSE, 21 AMER.  BAR ASSOC. JOURN.  416, 421-422; HISE,
OWNERSHIP AND SOVEREIGNTY OF THE AIR, 16 IA. L. REV. 169; EUBANK, THE
DOCTRINE OF THE AIRSPACE ZONE OF EFFECTIVE POSSESSION, 12 BOSTON UNIV. 
L. REV. 414. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

THE FIFTH AMENDMENT PROVIDES THAT "PRIVATE PROPERTY" SHALL NOT "BE
TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION."  THE COURT HOLDS TODAY
THAT THE GOVERNMENT HAS "TAKEN" RESPONDENTS' PROPERTY BY REPEATEDLY
FLYING ARMY BOMBERS DIRECTLY ABOVE RESPONDENTS' LAND AT A HEIGHT OF
EIGHTY-THREE FEET WHERE THE LIGHT AND NOISE FROM THESE PLANES CAUSED
RESPONDENTS TO LOSE SLEEP AND THEIR CHICKENS TO BE KILLED.  SINCE THE
EFFECT OF THE COURT'S DECISION IS TO LIMIT, BY THE IMPOSITION OF
RELATIVELY ABSOLUTE CONSTITUTIONAL BARRIERS, POSSIBLE FUTURE
ADJUSTMENTS THROUGH LEGISLATION AND REGULATION WHICH MIGHT BECOME
NECESSARY WITH THE GROWTH OF AIR TRANSPORTATION, AND SINCE IN MY VIEW
THE CONSTITUTION DOES NOT CONTAIN SUCH BARRIERS, I DISSENT. 

THE FOLLOWING IS A BRIEF STATEMENT OF THE BACKGROUND AND OF THE
EVENTS THAT THE COURT'S OPINION TERMS A "TAKING" WITHIN THE MEANING OF
THE FIFTH AMENDMENT:  SINCE 1928 THERE HAS BEEN AN AIRFIELD SOME EIGHT
MILES FROM GREENSBORO, NORTH CAROLINA.  IN APRIL, 1942, THIS AIRPORT
WAS TAKEN OVER BY THE GREENSBORO-HIGH POINT MUNICIPAL AIRPORT AUTHORITY
AND IT HAS SINCE THEN OPERATED AS A MUNICIPAL AIRPORT.  IN 1942 THE
GOVERNMENT, BY CONTRACT, OBTAINED THE RIGHT TO USE THE FIELD
"CONCURRENTLY, JOINTLY, AND IN COMMON" WITH OTHER USERS.  YEARS BEFORE,
IN 1934, RESPONDENTS HAD BOUGHT THEIR PROPERTY, LOCATED MORE THAN ONE
THIRD OF A MILE FROM THE AIRPORT.  PRIVATE PLANES FROM THE AIRPORT FLEW
OVER THEIR LAND AND FARM BUILDINGS FROM 1934 TO 1942 AND ARE STILL
DOING SO.  BUT THOUGH THESE PLANES DISTURBED RESPONDENTS TO SOME
EXTENT, ARMY BOMBERS, WHICH STARTED TO FLY OVER THE LAND IN 1942 AT A
HEIGHT OF EIGHTY-THREE FEET, DISTURBED THEM MORE BECAUSE THEY WERE
LARGER, CAME OVER MORE FREQUENTLY, MADE A LOUDER NOISE, AND AT NIGHT A
GREATER GLARE WAS CAUSED BY THEIR LIGHTS.  THIS NOISE AND GLARE
DISTURBED RESPONDENTS' SLEEP, FRIGHTENED THEM, AND MADE THEM NERVOUS. 
THE NOISE AND LIGHT ALSO FRIGHTENED RESPONDENTS' CHICKENS SO MUCH THAT
MANY OF THEM FLEW AGAINST BUILDINGS AND WERE KILLED. 

THE COURT'S OPINION SEEMS TO INDICATE THAT THE MERE FLYING OF PLANES
THROUGH THE COLUMN OF AIR DIRECTLY ABOVE RESPONDENTS' LAND DOES NOT
CONSTITUTE A "TAKING."  CONSEQUENTLY, IT APPEARS TO BE NOISE AND GLARE,
TO THE EXTENT AND UNDER THE CIRCUMSTANCES SHOWN HERE, WHICH MAKE THE
GOVERNMENT A SEIZER OF PRIVATE PROPERTY.  BUT THE ALLEGATION OF NOISE
AND GLARE RESULTING IN DAMAGES, CONSTITUTES AT BEST AN ACTION IN TORT
WHERE THERE MIGHT BE RECOVERY IF THE NOISE AND LIGHT CONSTITUTED A
NUISANCE, A VIOLATION OF A STATUTE,  FN1  OR WERE THE RESULT OF
NEGLIGENCE.  FN2 BUT THE GOVERNMENT HAS NOT CONSENTED TO BE SUED IN THE
COURT OF CLAIMS EXCEPT IN ACTIONS BASED ON EXPRESS OR IMPLIED
CONTRACT.  AND THERE IS NO IMPLIED CONTRACT HERE, UNLESS BY REASON OF
THE NOISE AND GLARE CAUSED BY THE BOMBERS THE GOVERNMENT CAN BE SAID TO
HAVE "TAKEN" RESPONDENTS' PROPERTY IN A CONSTITUTIONAL SENSE.  THE
CONCEPT OF TAKING PROPERTY AS USED IN THE CONSTITUTION HAS HERETOFORE
NEVER BEEN GIVEN SO SWEEPING A MEANING.  THE COURT'S OPINION PRESENTS
NO CASE WHERE A MAN WHO MAKES NOISE OR SHINES LIGHT ONTO HIS NEIGHBOR'S
PROPERTY HAS BEEN EJECTED FROM THAT PROPERTY FOR WRONGFULLY TAKING
POSSESSION OF IT.  NOR WOULD ANYONE TAKE SERIOUSLY A CLAIM THAT NOISY
AUTOMOBILES PASSING ON A HIGHWAY ARE TAKING WRONGFUL POSSESSION OF THE
HOMES LOCATED THEREON, OR THAT A CITY ELEVATED TRAIN WHICH GREATLY
INTERFERES WITH THE SLEEP OF THOSE WHO LIVE NEXT TO IT WRONGFULLY TAKES
THEIR PROPERTY.  EVEN THE ONE CASE IN THIS COURT WHICH IN CONSIDERING
THE SUFFICIENCY OF A COMPLAINT GAVE THE MOST ELASTIC MEANING TO THE
PHRASE "PRIVATE PROPERTY BE TAKEN" AS USED IN THE FIFTH AMENDMENT, DID
NOT GO SO FAR.  PORTSMOUTH CO. V. UNITED STATES, 260 U.S. 327.  I AM
NOT WILLING, NOR DO I THINK THE CONSTITUTION AND THE DECISIONS
AUTHORIZE ME, TO EXTEND THAT PHRASE SO AS TO GUARANTEE AN ABSOLUTE
CONSTITUTIONAL RIGHT TO RELIEF NOT SUBJECT TO LEGISLATIVE CHANGE, WHICH
IS BASED ON AVERMENTS THAT AT BEST SHOW MERE TORTS COMMITTED BY
GOVERNMENT AGENTS WHILE FLYING OVER LAND.  THE FUTURE ADJUSTMENT OF THE
RIGHTS AND REMEDIES OF PROPERTY OWNERS, WHICH MIGHT BE FOUND NECESSARY
BECAUSE OF THE FLIGHT OF PLANES AT SAFE ALTITUDES, SHOULD, ESPECIALLY
IN VIEW OF THE IMMINENT EXPANSION OF AIR NAVIGATION, BE LEFT WHERE I
THINK THE CONSTITUTION LEFT IT, WITH CONGRESS. 

NOR DO I REACH A DIFFERENT CONCLUSION BECAUSE OF THE FACT THAT THE
PARTICULAR CIRCUMSTANCE WHICH UNDER THE COURT'S OPINION MAKES THE TORT
HERE ABSOLUTELY ACTIONABLE, IS THE PASSING OF PLANES THROUGH A COLUMN
OF AIR AT AN ELEVATION OF EIGHTY-THREE FEET DIRECTLY OVER RESPONDENTS'
PROPERTY.  IT IS INCONCEIVABLE TO ME THAT THE CONSTITUTION GUARANTEES
THAT THE AIRSPACE OF THIS NATION NEEDED FOR AIR NAVIGATION IS OWNED BY
THE PARTICULAR PERSONS WHO HAPPEN TO OWN THE LAND BENEATH TO THE SAME
DEGREE AS THEY OWN THE SURFACE BELOW.  FN1  NO RIGID CONSTITUTIONAL
RULE, IN MY JUDGMENT, COMMANDS THAT THE AIR MUST BE CONSIDERED AS
MARKED OFF INTO SEPARATE COMPARTMENTS BY IMAGINARY METES AND BOUNDS IN
ORDER TO SYNCHRONIZE AIR OWNERSHIP WITH LAND OWNERSHIP.  I THINK THAT
THE CONSTITUTION ENTRUSTS CONGRESS WITH FULL POWER TO CONTROL ALL
NAVIGABLE AIRSPACE.  CONGRESS HAS ALREADY ACTED UNDER THAT POWER.  IT
HAS BY STATUTE, 44 STAT. 568, 52 STAT. 973, PROVIDED THAT "THE UNITED
STATES OF AMERICA IS  ...  TO POSSESS AND EXERCISE COMPLETE AND
EXCLUSIVE NATIONAL SOVEREIGNTY IN THE AIR SPACE ABOVE THE UNITED STATES
..."  THIS WAS DONE UNDER THE ASSUMPTION THAT THE COMMERCE CLAUSE OF
THE CONSTITUTION GAVE CONGRESS THE SAME PLENARY POWER TO CONTROL
NAVIGABLE AIRSPACE AS ITS PLENARY POWER OVER NAVIGABLE WATERS.  H. REP.
NO. 572, 69TH CONG., 1ST SESS., P. 10; H. REP. NO. 1162, 69TH CONG.,
1ST SESS., P. 14; SEE UNITED STATES V. COMMODORE PARK, 324 U.S. 386. 
TO MAKE SURE THAT THE AIRSPACE USED FOR AIR NAVIGATION WOULD REMAIN
FREE, CONGRESS FURTHER DECLARED THAT "NAVIGABLE AIRSPACE SHALL BE
SUBJECT TO A PUBLIC RIGHT OF FREEDOM OF INTERSTATE AND FOREIGN AIR
NAVIGATION," AND FINALLY STATED EMPHATICALLY THAT THERE EXISTS "A
PUBLIC RIGHT OF FREEDOM OF TRANSIT  ...  THROUGH THE NAVIGABLE AIR
SPACE OF THE UNITED STATES."  CONGRESS THUS DECLARED THAT THE AIR IS
FREE, NOT SUBJECT TO PRIVATE OWNERSHIP, AND NOT SUBJECT TO DELIMITATION
BY THE COURTS.  CONGRESS AND THOSE ACTING UNDER ITS AUTHORITY WERE THE
ONLY ONES WHO HAD POWER TO CONTROL AND REGULATE THE FLIGHT OF PLANES. 
"NAVIGABLE AIRSPACE" WAS DEFINED AS "AIRSPACE ABOVE THE MINIMUM SAFE
ALTITUDES OF FLIGHT PRESCRIBED BY THE CIVIL AERONAUTICS AUTHORITY ..." 
49 U.S.C. SEC. 180.  THUS, CONGRESS HAS GIVEN THE CIVIL AERONAUTICS
AUTHORITY EXCLUSIVE POWER TO DETERMINE WHAT IS NAVIGABLE AIRSPACE
SUBJECT TO ITS EXCLUSIVE CONTROL.  THIS POWER DERIVES SPECIFICALLY FROM
THE SECTION WHICH AUTHORIZES THE AUTHORITY TO PRESCRIBE "AIR TRAFFIC
RULES GOVERNING THE FLIGHT OF, AND FOR THE NAVIGATION, PROTECTION, AND
IDENTIFICATION OF, AIRCRAFT, INCLUDING RULES AS TO SAFE ALTITUDES OF
FLIGHT AND RULES FOR THE PREVENTION OF COLLISIONS BETWEEN AIRCRAFT, AND
BETWEEN AIRCRAFT AND LAND OR WATER VEHICLES."  HERE THERE WAS NO
SHOWING THAT THE BOMBERS FLYING OVER RESPONDENTS' LAND VIOLATED ANY
RULE OR REGULATION OF THE CIVIL AERONAUTICS AUTHORITY.  YET, UNLESS WE
HOLD THE ACT UNCONSTITUTIONAL, AT LEAST SUCH A SHOWING WOULD BE
NECESSARY BEFORE THE COURTS COULD ACT WITHOUT INTERFERING WITH THE
EXCLUSIVE AUTHORITY WHICH CONGRESS GAVE TO THE ADMINISTRATIVE AGENCY. 
NOT EVEN A SHOWING THAT THE AUTHORITY HAS NOT ACTED WOULD BE
SUFFICIENT.  FOR IN THAT EVENT, WERE THE COURTS TO HAVE ANY AUTHORITY
TO ACT IN THIS CASE AT ALL, THEY SHOULD STAY THEIR HAND TILL THE
AUTHORITY HAS ACTED. 

THE BROAD PROVISIONS OF THE CONGRESSIONAL STATUTE CANNOT PROPERLY BE
CIRCUMSCRIBED BY MAKING A DISTINCTION, AS THE COURT'S OPINION DOES,
BETWEEN RULES OF SAFE ALTITUDE OF FLIGHT WHILE ON THE LEVEL OF CROSS
COUNTRY FLIGHT AND RULES OF SAFE ALTITUDE DURING LANDING AND TAKING
OFF.  FIRST, SUCH A DISTINCTION CANNOT BE MAINTAINED FROM THE PRACTICAL
STANDPOINT.  IT IS UNLIKELY THAT CONGRESS INTENDED THAT THE AUTHORITY
PRESCRIBE SAFE ALTITUDES FOR PLANES MAKING CROSS-COUNTRY FLIGHTS, WHILE
AT THE SAME TIME IT LEFT THE MORE HAZARDOUS LANDING AND TAKE-OFF
OPERATIONS UNREGULATED.  THE LEGISLATIVE HISTORY, MOREOVER, CLEARLY
SHOWS THAT THE AUTHORITY'S POWER TO PRESCRIBE AIR TRAFFIC RULES
INCLUDES THE POWER TO MAKE RULES GOVERNING LANDING AND TAKE-OFF.  NOR
IS THE COURT JUSTIFIED IN IGNORING THAT HISTORY BY LABELING RULES OF
SAFE ALTITUDE WHILE ON THE LEVEL OF CROSS-COUNTRY FLIGHT AS RULES
PRESCRIBING THE SAFE ALTITUDE PROPER AND RULES GOVERNING TAKE-OFF AND
LANDING AS RULES OF OPERATION.  FOR THE CONFERENCE REPORT EXPLICITLY
STATES THAT SUCH DISTINCTIONS WERE PURPOSELY ELIMINATED FROM THE
ORIGINAL HOUSE BILL IN ORDER THAT THE SECTION ON AIR TRAFFIC RULES
"MIGHT BE GIVEN THE BROADEST POSSIBLE CONSTRUCTION BY THE  ...  (CIVIL
AERONAUTICS AUTHORITY) AND THE COURTS."  FN2  IN CONSTRUING THE STATUTE
NARROWLY, THE COURT THWARTS THE INTENT OF CONGRESS.  A PROPER BROAD
CONSTRUCTION, SUCH AS CONGRESS COMMANDED, WOULD NOT PERMIT THE COURT TO
DECIDE WHAT IT HAS TODAY WITHOUT DECLARING THE ACT OF CONGRESS
UNCONSTITUTIONAL.  I THINK THE ACT GIVEN THE BROAD CONSTRUCTION
INTENDED IS CONSTITUTIONAL. 

NO GREATER CONFUSION COULD BE BROUGHT ABOUT IN THE COMING AGE OF AIR
TRANSPORTATION THAN THAT WHICH WOULD RESULT WERE COURTS BY
CONSTITUTIONAL INTERPRETATION TO HAMPER CONGRESS IN ITS EFFORTS TO KEEP
THE AIR FREE.  OLD CONCEPTS OF PRIVATE OWNERSHIP OF LAND SHOULD NOT BE
INTRODUCED INTO THE FIELD OF AIR REGULATION.  I HAVE NO DOUBT THAT
CONGRESS WILL, IF NOT HANDICAPPED BY JUDICIAL INTERPRETATIONS OF THE
CONSTITUTION, PRESERVE THE FREEDOM OF THE AIR, AND AT THE SAME TIME,
SATISFY THE JUST CLAIMS OF AGGRIEVED PERSONS.  THE NOISE OF NEWER,
LARGER, AND MORE POWERFUL PLANES MAY GROW LOUDER AND LOUDER AND DISTURB
PEOPLE MORE AND MORE.  BUT THE SOLUTION OF THE PROBLEMS PRECIPITATED BY
THESE TECHNOLOGICAL ADVANCES AND NEW WAYS OF LIVING CANNOT COME ABOUT
THROUGH THE APPLICATION OF RIGID CONSTITUTIONAL RESTRAINTS FORMULATED
AND ENFORCED BY THE COURTS.  WHAT ADJUSTMENTS MAY HAVE TO BE MADE, ONLY
THE FUTURE CAN REVEAL.  IT SEEMS CERTAIN, HOWEVER, THAT COURTS DO NOT
POSSESS THE TECHNIQUES OR THE PERSONNEL TO CONSIDER AND ACT UPON THE
COMPLEX COMBINATIONS OF FACTORS ENTERING INTO THE PROBLEMS.  THE
CONTRIBUTION OF COURTS MUST BE MADE THROUGH THE AWARDING OF DAMAGES FOR
INJURIES SUFFERED FROM THE FLYING OF PLANES, OR BY THE GRANTING OF
INJUNCTIONS TO PROHIBIT THEIR FLYING.  WHEN THESE TWO SIMPLE REMEDIAL
DEVICES ARE ELEVATED TO A CONSTITUTIONAL LEVEL UNDER THE FIFTH
AMENDMENT, AS THE COURT TODAY SEEMS TO HAVE DONE, THEY CAN STAND AS
OBSTACLES TO BETTER ADAPTED TECHNIQUES THAT MIGHT BE OFFERED BY
EXPERIENCED EXPERTS AND ACCEPTED BY CONGRESS.  TODAY'S OPINION IS, I
FEAR, AN OPENING WEDGE FOR AN UNWARRANTED JUDICIAL INTERFERENCE WITH
THE POWER OF CONGRESS TO DEVELOP SOLUTIONS FOR NEW AND VITAL NATIONAL
PROBLEMS.  IN MY OPINION THIS CASE SHOULD BE REVERSED ON THE GROUND
THAT THERE HAS BEEN NO "TAKING" IN THE CONSTITUTIONAL SENSE. 

FN1  NEISWONGER V. GOODYEAR TIRE & RUBBER CO., 35 F.2D 761. 

FN2  AS TO THE DAMAGE TO CHICKENS, JUDGE MADDEN, DISSENTING FROM THIS
JUDGMENT AGAINST THE GOVERNMENT, SAID, "WHEN RAILROADS WERE NEW, CATTLE
IN FIELDS IN SIGHT AND HEARING OF THE TRAINS WERE ALARMED, THINKING
THAT THE GREAT MOVING OBJECTS WOULD TURN ASIDE AND HARM THEM.  HORSES
RAN AWAY AT THE SIGHT AND SOUND OF A TRAIN OR A THRESHING MACHINE
ENGINE.  THE FARMER'S CHICKENS HAVE TO GET OVER BEING ALARMED AT THE
INCREDIBLE RACKET OF THE TRACTOR STARTING UP SUDDENLY IN THE SHED
ADJOINING THE CHICKEN HOUSE.  THESE SIGHTS AND NOISES ARE A PART OF OUR
WORLD, AND AIRPLANES ARE NOW AND WILL BE TO A GREATER DEGREE, LIKEWISE
A PART OF IT.  THESE DISTURBANCES SHOULD NOT BE TREATED AS TORTS, IN
THE CASE OF THE AIRPLANE, ANY MORE THAN THEY ARE SO TREATED IN THE CASE
OF THE RAILROAD OR PUBLIC HIGHWAY."  104 CT. CLS. 342, 358. 

FN1  THE HOUSE IN ITS REPORT ON THE AIR COMMERCE ACT OF 1926 STATED: 

"THE PUBLIC RIGHT OF FLIGHT IN THE NAVIGABLE AIR SPACE OWES ITS
SOURCE TO THE SAME CONSTITUTIONAL BASIS WHICH, UNDER DECISIONS OF THE
SUPREME COURT, HAS GIVEN RISE TO A PUBLIC EASEMENT OF NAVIGATION IN THE
NAVIGABLE WATERS OF THE UNITED STATES, REGARDLESS OF THE OWNERSHIP OF
THE ADJACENT OR SUBJACENT SOIL."  H. REP. NO. 572, 69TH CONG., 1ST
SESS., P. 10. 

FN2  THE FULL STATEMENT READS: 

"THE SUBSTITUTE PROVIDES THAT THE SECRETARY SHALL BY REGULATION
ESTABLISH AIR TRAFFIC RULES FOR THE NAVIGATION, PROTECTION, AND
IDENTIFICATION OF ALL AIRCRAFT, INCLUDING RULES AS TO SAFE ALTITUDES OF
FLIGHT AND RULES FOR THE PREVENTION OF COLLISIONS BETWEEN VESSELS AND
AIRCRAFT.  THE PROVISION AS TO RULES FOR TAKING OFF AND ALIGHTING, FOR
INSTANCE, WAS ELIMINATED AS UNNECESSARY SPECIFICATION, FOR THE REASON
THAT SUCH RULES ARE BUT ONE CLASS OF AIR TRAFFIC RULES FOR THE
NAVIGATION AND PROTECTION OF AIRCRAFT.  RULES AS TO MARKING WERE
ELIMINATED FOR THE REASON THAT SUCH RULES WERE FAIRLY INCLUDED WITHIN
THE SCOPE OF AIR RULES FOR THE IDENTIFICATION OF AIRCRAFT.  NO ATTEMPT
IS MADE BY EITHER THE SENATE BILL OR THE HOUSE AMENDMENT TO FULLY
DEFINE THE VARIOUS CLASSES OF RULES THAT WOULD FALL WITHIN THE SCOPE OF
AIR TRAFFIC RULES, AS, FOR INSTANCE, LIGHTS AND SIGNALS ALONG AIRWAYS
AND AT AIR-PORTS AND UPON EMERGENCY LANDING FIELDS.  IN GENERAL, THESE
RULES WOULD RELATE TO THE SAME SUBJECTS AS THOSE COVERED BY NAVIGATION
LAWS AND REGULATIONS AND BY THE VARIOUS STATE MOTOR VEHICLE TRAFFIC
CODES.  AS NOTED ABOVE, SURPLUSAGE WAS ELIMINATED IN SPECIFYING
PARTICULAR AIR TRAFFIC RULES IN ORDER THAT THE TERM MIGHT BE GIVEN THE
BROADEST POSSIBLE CONSTRUCTION BY THE DEPARTMENT OF COMMERCE AND THE
COURTS."  H. REP. NO. 1162, 69TH CONG., 1ST SESS., P. 12. 

THAT THE RULES FOR LANDING AND TAKE-OFF ARE RULES PRESCRIBING
"MINIMUM SAFE ALTITUDES OF FLIGHT" IS SHOWN BY THE FOLLOWING FURTHER
STATEMENT IN THE HOUSE REPORT:  "...  THE MINIMUM SAFE ALTITUDES OF
FLIGHT  ...  WOULD VARY WITH THE TERRENE (TERRAIN) AND LOCATION OF
CITIES AND WOULD COINCIDE WITH THE SURFACE OF THE LAND OR WATER AT
AIRPORTS."  ID. AT P. 14. 

MR. JUSTICE BURTON JOINS IN THIS DISSENT. 
..END :



FISHGOLD V. SULLIVAN CORP., 328 U.S. 275 


NO. 970.  ARGUED MAY 6, 1946.  - DECIDED MAY 27, 1946.  - 154 F.2D 785,
AFFIRMED. 


AFTER SERVING IN THE ARMY AND RECEIVING AN HONORABLE DISCHARGE,
PETITIONER WAS REINSTATED IN HIS FORMER POSITION PURSUANT TO SEC. 8(A)
OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.  SUBSEQUENTLY, WHEN
THERE WAS NOT ENOUGH WORK TO KEEP ALL EMPLOYEES BUSY, HE WAS LAID OFF
TEMPORARILY ON NINE DAYS WHILE NON-VETERANS WITH HIGHER SHOP
SENIORITIES WERE PERMITTED TO WORK; BUT HE WAS GIVEN WORK WHEN ENOUGH
BECAME AVAILABLE.  HE SUED FOR A DECLARATORY JUDGMENT AS TO HIS RIGHTS
UNDER THE ACT AND TO OBTAIN COMPENSATION FOR THE DAYS THAT HE WAS LAID
OFF.  THE UNION INTERVENED AND ALLEGED IN ITS ANSWER THAT THE
EMPLOYER'S ACTION WAS IN ACCORDANCE WITH THE PROVISIONS OF A COLLECTIVE
BARGAINING AGREEMENT AND WAS NOT A VIOLATION OF THE ACT.  THE DISTRICT
COURT HELD THAT PETITIONER WAS LAID OFF IN VIOLATION OF THE ACT AND
GAVE HIM A MONEY JUDGMENT FOR THE LOSS OF WAGES.  ONLY THE UNION
APPEALED.  HELD: 

1.  THE CIRCUIT COURT OF APPEALS HAD JURISDICTION OF THE APPEAL,
SINCE THE UNION'S ANSWER PUT IN ISSUE THE QUESTION WHETHER THERE WAS A
CONFLICT BETWEEN THE COLLECTIVE BARGAINING AGREEMENT AND THE ACT AND,
IF SO, WHICH ONE PREVAILED.  THAT ISSUE BEING ADJUDICATED WITH THE
UNION AND THE EMPLOYER AS PARTIES, WOULD HAVE BEEN RES JUDICATA AS TO
THE UNION HAD IT NOT APPEALED.  PP. 281-284. 

2.  THE TEMPORARY "LAY-OFF" OF PETITIONER WHILE OTHER EMPLOYEES WITH
HIGHER SHOP SENIORITIES WERE PERMITTED TO WORK DID NOT VIOLATE SEC. 8
OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.  PP. 284-291. 

(A)  SECTIONS 8(B) AND (C) DO NOT GRANT A VETERAN AN INCREASE IN
SENIORITY OVER WHAT HE WOULD HAVE HAD IF HE HAD NEVER ENTERED THE ARMED
SERVICES.  P. 285. 

(B)  AN EMPLOYEE WHO HAS BEEN LAID OFF IN ACCORDANCE WITH A SENIORITY
SYSTEM AND PUT ON A WAITING LIST FOR REASSIGNMENT HAS NOT BEEN
"DISCHARGED" WITHIN THE MEANING OF SEC. 8(C), WHICH FORBIDS THE
DISCHARGE OF A REEMPLOYED VETERAN WITHOUT CAUSE WITHIN ONE YEAR.  PP.
286, 287. 

(C)  NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT INDICATES A
PURPOSE TO ACCORD A VETERAN THE RIGHT TO WORK WHEN BY OPERATION OF THE
SENIORITY SYSTEM THERE IS NONE AVAILABLE FOR HIM.  P. 289. 

(D)  THE FACT THAT, WHEN CONGRESS AMENDED SEC. 8 OF THE ACT IN 1944
AND EXTENDED THE ACT IN 1945 WITHOUT ANY CHANGE IN SEC. 8, IT WAS
APPRISED OF AN ADMINISTRATIVE INTERPRETATION BY THE DIRECTOR OF
SELECTIVE SERVICE THAT A VETERAN WAS ENTITLED TO HIS JOB REGARDLESS OF
SENIORITY IS NOT CONTROLLING - ESPECIALLY WHEN THE NATIONAL WAR LABOR
BOARD HAS GIVEN SEC. 8(C) A DIFFERENT CONSTRUCTION IN HANDLING DISPUTES
ARISING OUT OF THE NEGOTIATION OF COLLECTIVE BARGAINING AGREEMENTS. 
PP. 289-291. 

3.  ADMINISTRATIVE INTERPRETATIONS OF THE ACT BY THE DIRECTOR OF
SELECTIVE SERVICE MAY BE RESORTED TO FOR GUIDANCE; BUT, NOT BEING MADE
IN ADVERSARY PROCEEDINGS, THEY ARE NOT ENTITLED TO THE WEIGHT WHICH IS
ACCORDED ADMINISTRATIVE INTERPRETATIONS BY ADMINISTRATIVE AGENCIES
ENTRUSTED WITH THE RESPONSIBILITY OF MAKING INTER PARTES DECISIONS.  P.
290. 

FISHGOLD V. SULLIVAN DRYDOCK & REPAIR CORP. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

PETITIONER SUED UNDER SEC. 8(E) OF THE SELECTIVE TRAINING AND SERVICE
ACT TO OBTAIN A DECLARATORY JUDGMENT AS TO HIS RIGHTS UNDER THE ACT AND
COMPENSATION FOR THE DAYS HE WAS LAID OFF FROM WORK.  THE DISTRICT
COURT REFUSED THE DECLARATORY JUDGMENT BUT GAVE PETITIONER A MONEY
JUDGMENT FOR THE LOSS OF WAGES.  62 F.SUPP.  25.  THE CIRCUIT COURT OF
APPEALS REVERSED.  154 F.2D 785.  THIS COURT GRANTED CERTIORARI.  327
U.S. 775.  AFFIRMED, P. 291. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS AN EMPLOYEE OF THE SULLIVAN DRYDOCK & REPAIR
CORPORATION.  HE ENTERED ITS EMPLOY IN 1942 AND WORKED FOR IT AT A
SHIPYARD UNTIL HE WAS INDUCTED INTO THE ARMY IN 1943.  HE SERVED IN THE
ARMY A LITTLE OVER A YEAR AND WAS HONORABLY DISCHARGED AND RECEIVED A
CERTIFICATE TO THAT EFFECT.  HE HAD WORKED FOR THE CORPORATION AS A
WELDER AND, AFTER HIS TOUR OF DUTY IN THE ARMY ENDED, HE WAS STILL
QUALIFIED TO PERFORM THE DUTIES OF A WELDER.  WITHIN FORTY DAYS OF HIS
DISCHARGE, HE APPLIED TO THE CORPORATION, AS WAS HIS RIGHT UNDER THE
SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, 50 U.S.C.
APP. SEC. 301, FOR RESTORATION TO HIS FORMER POSITION.  FN1  HE WAS
REEMPLOYED AS A WELDER ON AUGUST 25, 1944. 

THE CORPORATION AND LOCAL 13 OF THE INDUSTRIAL UNION OF MARINE AND
SHIPBUILDING WORKERS OF AMERICA HAD A COLLECTIVE BARGAINING AGREEMENT
WHICH PROVIDED:  FN2 

"PROMOTIONS AND RECLASSIFICATIONS AND INCREASES OR DECREASES IN THE
WORKING FORCE SHALL BE BASED UPON LENGTH OF SERVICE AND ABILITY TO DO
THE JOB.  WHEREVER BETWEEN TWO OR MORE MEN, ABILITY IS FAIRLY EQUAL,
LENGTH OF SERVICE SHALL BE THE CONTROLLING FACTOR." 

AS WORK AT THE SHIPYARD DECREASED, MEN WOULD BE LAID OFF.  THE MEN
SELECTED BY THE FOREMEN, ON THE BASIS OF ABILITY AND SENIORITY, TO BE
LAID OFF WOULD REPORT TO A DEPARTMENT HEAD FOR REASSIGNMENT ON THE
BASIS OF THEIR RELATIVE SENIORITY WHEN WORK BECAME AVAILABLE.  ON EACH
OF NINE DAYS IN THE SPRING OF 1945 PETITIONER WAS LAID OFF ALTHOUGH
OTHER WELDERS, NOT VETERANS OF THE RECENT WAR, POSSESSING THE SAME OR
SIMILAR SKILL AS PETITIONER, WERE GIVEN WORK ON THOSE DAYS.  THESE MEN
WERE PREFERRED BECAUSE THEY HAD A HIGHER SHOP SENIORITY THAN
PETITIONER.  THE DECISION TO LAY OFF PETITIONER FOLLOWED A DECISION OF
AN ARBITRATOR WHO RULED THAT THE SENIORITY PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT, WHICH WE HAVE QUOTED, REQUIRED IT AND THAT THEY
WERE NOT INCONSISTENT WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940. 

THEREUPON PETITIONER BROUGHT THIS SUIT, PURSUANT TO SEC. 8(E) OF THE
ACT,  FN3  TO OBTAIN A DECLARATORY JUDGMENT AS TO HIS RIGHTS UNDER THE
ACT AND TO OBTAIN COMPENSATION FOR THE DAYS HE WAS NOT ALLOWED TO
WORK.  THE CORPORATION ANSWERED, JUSTIFYING ITS ACTION BY THE
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT AND THE DECISION OF
THE ARBITRATOR.  THE UNION WAS PERMITTED TO INTERVENE.  FN4  IT ALLEGED
IN ITS ANSWER THAT THE ACTION OF THE CORPORATION WAS WARRANTED BY THE
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT AND WAS NOT IN
VIOLATION OF THE ACT.  THE DISTRICT COURT REFUSED THE DECLARATORY
JUDGMENT REQUESTED, BUT ENTERED A MONEY JUDGMENT FOR PETITIONER FOR THE
LOSS OF WAGES DURING THE NINE DAYS IN QUESTION.  62 F.SUPP.  25.  IT
HELD THAT PETITIONER WAS LAID OFF IN VIOLATION OF THE ACT.  IT WAS ALSO
OF THE VIEW THAT THE COLLECTIVE BARGAINING AGREEMENT WAS NOT
INCONSISTENT WITH THE ACT.  ONLY THE UNION APPEALED.  THE CIRCUIT COURT
OF APPEALS REVERSED, ONE JUDGE DISSENTING.  154 F.2D 785.  IT HELD THAT
THE ACT DID NOT GIVE PETITIONER THE PREFERENCE WHICH HE CLAIMED AND
THAT THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT JUSTIFIED THE
CORPORATION'S ACTION.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTION
PRESENTED. 

I. WE ARE MET AT THE OUTSET WITH THE CLAIM THAT THE UNION HAD NO
APPEALABLE INTEREST IN THE JUDGMENT ENTERED BY THE DISTRICT COURT AND
ACCORDINGLY THAT THE CIRCUIT COURT OF APPEALS LACKED JURISDICTION TO
ENTERTAIN IT.  IT IS POINTED OUT THAT A MONEY JUDGMENT WAS ENTERED ONLY
AGAINST THE CORPORATION AND THAT NO RELIEF WAS GRANTED AGAINST THE
UNION.  IT IS THEREFORE ARGUED THAT THE JUDGMENT DID NOT AFFECT ANY
SUBSTANTIVE RIGHT OF THE UNION AND THAT AT MOST THE UNION HAD MERELY AN
INTEREST IN THE OUTCOME OF LITIGATION WHICH MIGHT ESTABLISH A PRECEDENT
ADVERSE TO IT.  BOSTON TOW BOAT CO. V. UNITED STATES, 321 U.S. 632.  IT
IS ALSO POINTED OUT THAT THE STATUTORY GUARANTEE AGAINST DISCHARGE
WITHOUT CAUSE FOR ONE YEAR  FN5  HAD EXPIRED AT THE TIME OF THE
DISTRICT COURT'S JUDGMENT, THAT THEREFORE NO DECLARATORY RELIEF WAS
GRANTED, AND THAT PETITIONER'S RIGHTS FOR THE FUTURE WERE NOT
ADJUDICATED.  IT IS CONTENDED THAT THE DISPUTE BETWEEN PETITIONER AND
THE UNION HAS THUS BECOME MOOT. 

BUT THAT ARGUMENT MISSES THE POINT.  THE ANSWER OF THE CORPORATION
AND THE UNION PUT IN ISSUE THE QUESTION WHETHER THERE WAS A CONFLICT
BETWEEN THE COLLECTIVE BARGAINING AGREEMENT AND THE ACT AND, IF SO,
WHICH ONE PREVAILED.  THE PARTIES TO THE COLLECTIVE BARGAINING
AGREEMENT - THE UNION AND THE CORPORATION - WERE BEFORE THE COURT.  A
DECISION ON THE MERITS OF PETITIONER'S CLAIM NECESSARILY INVOLVED A
RECONCILIATION BETWEEN THE ACT AND THE COLLECTIVE BARGAINING AGREEMENT
OR, IF IT APPEARED THAT THEY CONFLICTED, AN ADJUDICATION THAT ONE
SUPERSEDED THE OTHER.  AS WE HAVE NOTED, THE DISTRICT COURT WAS OF THE
VIEW THAT THE COLLECTIVE BARGAINING AGREEMENT WAS NOT INCONSISTENT WITH
THE ACT.  BUT, HOWEVER THE RESULT MIGHT BE RATIONALIZED, A DECISION FOR
OR AGAINST PETITIONER NECESSARILY INVOLVED A CONSTRUCTION OF THE
COLLECTIVE BARGAINING AGREEMENT.  THAT ISSUE WAS ADJUDICATED, WITH THE
UNION AS A PARTY.  HENCE, IF THE UNION HAD THEREAFTER INSTITUTED A
SEPARATE SUIT FOR AN INTERPRETATION OF THE AGREEMENT, IT WOULD BE MET
WITH THE PLEA OF RES JUDICATA.  AND THAT PLEA WOULD BE SUSTAINED, FOR
THE PRIOR DECISION WAS ON THE PRECISE POINT WHICH THE UNION SOUGHT TO
RELITIGATE AND WAS ADVERSE TO THE UNION.  AND BOTH PARTIES TO THE
AGREEMENT - THE UNION AND THE CORPORATION - WERE PARTIES TO THE PRIOR
SUIT.  THIS ELEMENTARY PRINCIPLE HAS LONG BEEN RECOGNIZED.  BLACK, THE
LAW OF JUDGMENTS (2D ED.), PP. 764, 821, 936.  AS STATED IN CROMWELL V.
COUNTY OF SAC, 94 U.S. 351, 352, A PRIOR JUDGMENT "IS A FINALITY AS TO
THE CLAIM OR DEMAND IN CONTROVERSY, CONCLUDING PARTIES AND THOSE IN
PRIVITY WITH THEM, NOT ONLY AS TO EVERY MATTER WHICH WAS OFFERED AND
RECEIVED TO SUSTAIN OR DEFEAT THE CLAIM OR DEMAND, BUT AS TO ANY OTHER
ADMISSIBLE MATTER WHICH MIGHT HAVE BEEN OFFERED FOR THAT PURPOSE."  AND
SEE ROOKER V. FIDELITY TRUST CO., 263 U.S. 413, 415; GRUBB V. PUBLIC
UTILITIES COMMISSION, 281 U.S. 470, 479; STOLL V. GOTTLIEB, 305 U.S.
165; CHICOT COUNTY DRAINAGE DIST. V. BAXTER STATE BANK, 308 U.S. 371,
375, 378.  THE CASE OF BOSTON TOW BOAT CO. V. UNITED STATES, SUPRA,
WOULD BE RELEVANT IF THE COLLECTIVE BARGAINING AGREEMENT IN ISSUE WAS
ONE BETWEEN DIFFERENT PARTIES.  FN6  THEN THE UNION'S INTEREST WOULD BE
MERELY THE INTEREST OF ONE SEEKING REVERSAL OF AN ADVERSE PRECEDENT. 
AND ITS "INDEPENDENT RIGHT TO RELIEF" WOULD NOT BE INCREASED BY REASON
OF ITS INTERVENTION IN THE CAUSE.  ALEXANDER SPRUNT & SON V. UNITED
STATES, 281 U.S. 249, 255.  BUT HERE THE RIGHTS OF THE UNION AND ITS
MEMBERS UNDER A CONTRACT WITH THE CORPORATION WERE ADJUDICATED IN A
PROCEEDING IN WHICH THE UNION WAS A PARTY.  THE CONTRACT WAS STILL IN
EXISTENCE AT THE TIME OF THE APPEAL.  HENCE THE CASE WAS NOT MOOT.  AND
THE ONLY WAY THE UNION COULD PROTECT ITSELF AGAINST THAT BINDING
INTERPRETATION OF THE AGREEMENT WAS BY AN APPEAL.  FOR THEN THE UNION
FOUND ITSELF IN THE POSITION WHERE A RIGHT OF ITS OWN (ALEXANDER SPRUNT
& SON V. UNITED STATES, SUPRA, P. 255) WAS ADJUDICATED.  FN7 

IT IS SUGGESTED, HOWEVER, THAT THE RESULT OF WHAT WE DO IS TO FREE
THE UNION AND THE EMPLOYER FROM COSTS AND BURDEN FISHGOLD WITH THEM. 
THERE ARE SEVERAL ANSWERS TO THAT.  THE ALLOWANCE OF COSTS HAS NO
BEARING ON WHAT IS OR WHAT IS NOT RES JUDICATA.  THEIR ALLOWANCE TO THE
PREVAILING PARTY IS NOT, MOREOVER, A RIGID RULE.  UNDER THE RULES OF
CIVIL PROCEDURE THE COURT CAN DIRECT OTHERWISE.  RULE 54(D).  AND
FINALLY, CONGRESS HAS PROVIDED IN SEC. 8(E) OF THIS ACT THAT WHEN A
VETERAN APPLIES TO THE DISTRICT COURT FOR THE BENEFITS OF THE ACT "NO
FEES OR COURT COSTS SHALL BE TAXED" AGAINST HIM. 

II.  WE TURN THEN TO THE MERITS.  THE ACT WAS DESIGNED TO PROTECT THE
VETERAN IN SEVERAL WAYS.  HE WHO WAS CALLED TO THE COLORS WAS NOT TO BE
PENALIZED ON HIS RETURN BY REASON OF HIS ABSENCE FROM HIS CIVILIAN
JOB.  HE WAS, MOREOVER, TO GAIN BY HIS SERVICE FOR HIS COUNTRY AN
ADVANTAGE WHICH THE LAW WITHHELD FROM THOSE WHO STAYED BEHIND. 

THESE GUARANTEES ARE CONTAINED IN SEC. 8 OF THE ACT  FN8  AND EXTEND
TO A VETERAN, HONORABLY DISCHARGED AND STILL QUALIFIED TO PERFORM THE
DUTIES OF HIS OLD POSITION.  (1) HE HAS A STATED PERIOD OF TIME IN
WHICH TO APPLY FOR REEMPLOYMENT N9.  SEC. 8(B).  HE IS NOT PRESSED FOR
A DECISION IMMEDIATELY ON HIS DISCHARGE BUT HAS THE OPPORTUNITY TO MAKE
PLANS FOR THE FUTURE AND READJUST HIMSELF TO CIVILIAN LIFE.  (2) HE
MUST BE RESTORED TO HIS FORMER POSITION "OR TO A POSITION OF LIKE
SENIORITY, STATUS, AND PAY."  SEC. 8(B)(A), (B).  HE IS THUS PROTECTED
AGAINST RECEIVING A JOB INFERIOR TO THAT WHICH HE HAD BEFORE ENTERING
THE ARMED SERVICES.  (3) HE SHALL BE "RESTORED WITHOUT LOSS OF
SENIORITY" AND BE CONSIDERED "AS HAVING BEEN ON FURLOUGH OR LEAVE OF
ABSENCE" DURING THE PERIOD OF HIS SERVICE FOR HIS COUNTRY, WITH ALL OF
THE INSURANCE AND OTHER BENEFITS ACCRUING TO EMPLOYEES ON FURLOUGH OR
LEAVE OF ABSENCE.  SEC. 8(C).  THUS HE DOES NOT STEP BACK ON THE
SENIORITY ESCALATOR AT THE POINT HE STEPPED OFF.  HE STEPS BACK ON AT
THE PRECISE POINT HE WOULD HAVE OCCUPIED HAD HE KEPT HIS POSITION
CONTINUOUSLY DURING THE WAR.  (4) HE "SHALL NOT BE DISCHARGED FROM SUCH
POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION."  SEC.
8(C). 

PETITIONER'S CASE COMES DOWN TO THE MEANING OF THIS GUARANTEE AGAINST
"DISCHARGE."  "DISCHARGE" IS CONSTRUED BY HIM TO INCLUDE "LAY-OFF." 
AND IT IS EARNESTLY ARGUED THAT CONGRESS COULD NOT HAVE INTENDED TO
RESTORE THE VETERAN TO HIS POSITION, PREVENT HIS DISCHARGE WITHOUT
CAUSE FOR ONE YEAR, AND YET NOT INTEND THAT HE PERFORM ACTUAL WORK IF
IT WAS AVAILABLE. 

THIS LEGISLATION IS TO BE LIBERALLY CONSTRUED FOR THE BENEFIT OF
THOSE WHO LEFT PRIVATE LIFE TO SERVE THEIR COUNTRY IN ITS HOUR OF GREAT
NEED.  SEE BOONE V. LIGHTNER, 319 U.S. 561, 575.  AND NO PRACTICE OF
EMPLOYERS OR AGREEMENTS BETWEEN EMPLOYERS AND UNIONS CAN CUT DOWN THE
SERVICE ADJUSTMENT BENEFITS WHICH CONGRESS HAS SECURED THE VETERAN
UNDER THE ACT.  OUR PROBLEM IS TO CONSTRUE THE SEPARATE PROVISIONS OF
THE ACT AS PARTS OF AN ORGANIC WHOLE AND GIVE EACH AS LIBERAL A
CONSTRUCTION FOR THE BENEFIT OF THE VETERAN AS A HARMONIOUS INTERPLAY
OF THE SEPARATE PROVISIONS PERMITS. 

WE CAN FIND NO SUPPORT FOR PETITIONER'S POSITION IN THE PROVISION OF
SEC. 8(B) WHICH RESTORES HIM TO HIS FORMER POSITION OR TO A "POSITION
OF LIKE SENIORITY."  NOR CAN WE FIND IT IN SEC. 8(C) WHICH DIRECTS THAT
HE "SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY."  AS WE HAVE SAID,
THESE PROVISIONS GUARANTEE THE VETERAN AGAINST LOSS OF POSITION OR LOSS
OF SENIORITY BY REASON OF HIS ABSENCE.  HE ACQUIRES NOT ONLY THE SAME
SENIORITY HE HAD; HIS SERVICE IN THE ARMED SERVICES IS COUNTED AS
SERVICE IN THE PLANT SO THAT HE DOES NOT LOSE GROUND BY REASON OF HIS
ABSENCE.  BUT WE WOULD DISTORT THE LANGUAGE OF THESE PROVISIONS IF WE
READ IT AS GRANTING THE VETERAN AN INCREASE IN SENIORITY OVER WHAT HE
WOULD HAVE HAD IF HE HAD NEVER ENTERED THE ARMED SERVICES.  WE AGREE
WITH THE CIRCUIT COURT OF APPEALS THAT BY THESE PROVISIONS CONGRESS
MADE THE RESTORATION AS NEARLY A COMPLETE SUBSTITUTE FOR THE ORIGINAL
JOB AS WAS POSSIBLE.  NO STEP-UP OR GAIN IN PRIORITY CAN BE FAIRLY
IMPLIED.  CONGRESS PROTECTED THE VETERAN AGAINST LOSS OF GROUND OR
DEMOTION ON HIS RETURN.  THE PROVISIONS FOR RESTORATION WITHOUT LOSS OF
SENIORITY TO HIS OLD POSITION OR TO A POSITION OF LIKE SENIORITY MEAN
NO MORE. 

NOR CAN WE READ INTO THE GUARANTEE AGAINST DISCHARGE "FROM SUCH
POSITION" A GAIN OR STEP-UP IN SENIORITY.  THAT GUARANTEE DOES NOT IN
TERMS DEAL WITH THE SENIORITY PROBLEM.  THE PROBLEM OF SENIORITY IS
COVERED BY THE PRECEDING PROVISIONS.  THE GUARANTEE AGAINST DISCHARGE
"FROM SUCH POSITION" IS BROAD ENOUGH TO COVER DEMOTIONS.  THE VETERAN
IS ENTITLED TO BE RESTORED TO HIS OLD POSITION OR TO A "POSITION OF
LIKE SENIORITY, STATUS, AND PAY."  IF WITHIN THE STATUTORY PERIOD HE IS
DEMOTED, HIS STATUS, WHICH THE ACT WAS DESIGNED TO PROTECT, HAS BEEN
AFFECTED AND THE OLD EMPLOYMENT RELATIONSHIP HAS BEEN CHANGED.  HE
WOULD THEN LOSE HIS OLD POSITION AND ACQUIRE AN INFERIOR ONE.  HE WOULD
WITHIN THE MEANING OF SEC. 8(C) BE "DISCHARGED FROM SUCH POSITION." 
BUT THE GUARANTEE AGAINST DISCHARGE DOES NOT ON ITS FACE SUGGEST THE
GRANT OF A PREFERENCE TO THE VETERAN OVER AND ABOVE THAT WHICH WAS
ACCORDED BY THE SENIORITY OF "SUCH POSITION."    DISCHARGE NORMALLY
MEANS TERMINATION OF THE EMPLOYMENT RELATIONSHIP OR LOSS OF A
POSITION.  FN10 IN COMMON PARLANCE AND IN INDUSTRIAL PARLANCE A PERSON
WHO HAS BEEN LAID OFF BY OPERATION OF A SENIORITY SYSTEM AND PUT ON A
WAITING LIST FOR REASSIGNMENT WOULD HARDLY BE CONSIDERED AS HAVING BEEN
"DISCHARGED."  FN11  THERE ARE THREE TERMS USED IN SEC. 8(C) WHICH
RELATE TO VARIOUS TYPES OF CESSATION OF WORK - A "FURLOUGH," A "LEAVE
OF ABSENCE" AND A DISCHARGE.  A FURLOUGH IS NOT CONSIDERED A
DISCHARGE.  IT IS A FORM OF LAY-OFF.  SO IS A LEAVE OF ABSENCE.  AND
WHETHER EITHER RESULTS FROM UNILATERAL ACTION BY THE EMPLOYER OR
OTHERWISE, CONSEQUENCES ARE QUITE DIFFERENT FROM TERMINATION OF THE
EMPLOYMENT RELATIONSHIP.  SECTION 8(C) OF THE ACT RECOGNIZES THAT
INSURANCE AND OTHER BENEFITS MAY CONTINUE TO ACCRUE TO AN EMPLOYEE ON
FURLOUGH OR ON LEAVE OF ABSENCE.  AN EMPLOYEE ON FURLOUGH OR ON LEAVE
OF ABSENCE HAS A CONTINUING RELATIONSHIP WITH THE EMPLOYER; HE RETAINS
A RIGHT TO BE RESTORED TO WORK UNDER SPECIFIED CONDITIONS.  FN12  THUS
WHEN CONGRESS DESIRED TO COVER THE CONTINGENCY OF A LAY-OFF, IT USED
APT WORDS TO DESCRIBE IT.  IF IT HAD DESIRED TO ENACT THAT, SO LONG AS
THERE WAS WORK, NO RESTORED VETERAN, REGARDLESS OF SENIORITY, COULD BE
TEMPORARILY LAID OFF DURING THE YEAR FOLLOWING HIS RESTORATION, WHEN
THE SLACKENING OF WORK REQUIRED A REDUCTION IN FORCES, WE ARE BOUND TO
BELIEVE THAT IT WOULD HAVE USED A WORD OF THE KIND WHICH IT HAD ITSELF
RECOGNIZED AS BEING DESCRIPTIVE OF THAT SITUATION. 

THE "POSITION" TO WHICH THE VETERAN IS RESTORED IS THE "POSITION"
WHICH HE LEFT PLUS CUMULATED SENIORITY.  CERTAINLY HE WOULD NOT HAVE
BEEN DISCHARGED FROM SUCH POSITION AND UNABLE TO GET IT BACK, IF AT THE
TIME OF HIS INDUCTION INTO THE ARMED SERVICES HE HAD BEEN LAID OFF BY
OPERATION OF A SENIORITY SYSTEM.  PLAINLY HE STILL HAD HIS "POSITION"
WHEN HE WAS INDUCTED.  AND IN THE SAME SENSE HE RETAINS IT THOUGH A LAY
OFF INTERRUPTS THE CONTINUITY OF WORK IN THE STATUTORY PERIOD. 
MOREOVER, A VETERAN ON HIS RETURN IS ENTITLED TO HIS OLD "POSITION" OR
ITS EQUIVALENT EVEN THOUGH AT THE TIME OF HIS APPLICATION THE PLANT IS
CLOSED DOWN, SAY FOR RETOOLING, AND NO WORK IS AVAILABLE, UNLESS OF
COURSE THE PRIVATE EMPLOYER'S "CIRCUMSTANCES HAVE SO CHANGED AS TO MAKE
IT IMPOSSIBLE OR UNREASONABLE" TO RESTORE HIM.  SEC. 8(B)(B).  HE IS
ENTITLED TO BE RECALLED TO WORK IN ACCORDANCE WITH HIS SENIORITY.  HIS
"POSITION" EXISTS THOUGH NO WORK IS THEN AVAILABLE.  THE SLACKENING OF
WORK WHICH CAUSES HIM TO BE LAID OFF BY OPERATION OF A SENIORITY SYSTEM
IS NEITHER A REMOVAL OR DISMISSAL OR DISCHARGE FROM THE "POSITION" IN
ANY NORMAL SENSE.  CONGRESS RECOGNIZED IN THE ACT THE EXISTENCE OF
SENIORITY SYSTEMS AND SENIORITY RIGHTS.  IT SOUGHT TO PRESERVE THE
VETERAN'S RIGHTS UNDER THOSE SYSTEMS AND TO PROTECT HIM AGAINST LOSS
UNDER THEM BY REASON OF HIS ABSENCE.  THERE IS INDEED NO SUGGESTION
THAT CONGRESS SOUGHT TO SWEEP ASIDE THE SENIORITY SYSTEM.  WHAT IT
UNDERTOOK TO DO WAS TO GIVE THE VETERAN PROTECTION WITHIN THE FRAMEWORK
OF THE SENIORITY SYSTEM PLUS A GUARANTEE AGAINST DEMOTION OR
TERMINATION OF THE EMPLOYMENT RELATIONSHIP WITHOUT CAUSE FOR A YEAR. 

THE CONSTRUCTION WHICH WE HAVE GIVEN "DISCHARGED" DOES NOT ROB THAT
GUARANTEE OF VITALITY.  AS THE CIRCUIT COURT OF APPEALS OBSERVED, WHERE
THERE IS A CLOSED-SHOP AGREEMENT THE UNION WOULD NORMALLY AFFORD ITS
MEMBERS PROTECTION AGAINST TERMINATION OF THEIR EMPLOYMENT STATUS
WITHOUT CAUSE.  BUT IN MANY SITUATIONS THE GUARANTEE AGAINST DISMISSAL
WITHOUT CAUSE FOR ONE YEAR IS OF GREAT PRACTICAL IMPORTANCE AND IS A
PROTECTION GRANTED VETERANS ONLY. 

OUR CONSTRUCTION OF THE ACT FINDS SUPPORT IN ITS LEGISLATIVE
HISTORY.  REPRESENTATIVE MAY HAD CHARGE OF THE BILL ON THE FLOOR OF THE
HOUSE.  HE EXPLAINED AN AMENDMENT TO SEC. 8(C), WHICH ADDED THE WORDS
"SHALL BE CONSIDERED DURING THE PERIOD OF SERVICE IN SUCH FORCES AS ON
FURLOUGH OR LEAVE OF ABSENCE" AND ALSO ELABORATED THE CLAUSE DEALING
WITH "INSURANCE OR OTHER BENEFITS."  HE SAID: 

"I MAY SAY THAT THE CHIEF PURPOSE OF THE AMENDMENT IS TO PRESERVE THE
SENIORITY RIGHTS OF THE THOUSANDS AND HUNDREDS OF THOUSANDS OF RAILROAD
EMPLOYEES AND OTHER EMPLOYEES OF THAT CHARACTER WHO HAVE CERTAIN
SENIORITY PRIVILEGES ON THE RAILROADS.  IN OTHER WORDS, WE PUT THEM ON
FURLOUGH DURING THE TIME THEY ARE IN THE SERVICE AND THEY WILL EVEN BE
PERMITTED TO COUNT THIS TIME ON THE QUESTION OF THEIR RETIREMENT."  86
CONG. REC. 11702. 

AND BEFORE THAT AMENDMENT THE COMMITTEE REPORT OF THE SENATE STATED: 

"THE CONGRESS, IN THIS BILL, HAS DECLARED AS ITS PURPOSE AND INTENT
THAT EVERY MAN WHO LEAVES HIS JOB TO PARTICIPATE IN THIS TRAINING AND
SERVICE SHOULD BE REEMPLOYED WITHOUT LOSS OF SENIORITY OR OTHER
BENEFITS UPON HIS RETURN TO CIVIL LIFE."  S. REP. NO. 2002, 76TH CONG.,
3D SESS., P. 8. 

WE HAVE SEARCHED THE LEGISLATIVE HISTORY IN VAIN FOR ANY STATEMENT OF
PURPOSE THAT THE PROTECTION ACCORDED THE VETERAN WAS THE RIGHT TO WORK
WHEN BY OPERATION OF THE SENIORITY SYSTEM THERE WAS NONE THEN AVAILABLE
FOR HIM. 

IT IS SAID, HOWEVER, THAT WHEN CONGRESS AMENDED SEC. 8 OF THE ACT IN
1944  FN13  (58 STAT. 798) AND EXTENDED THE ACT IN 1945 WITHOUT ANY
CHANGE IN SEC. 8(C)(59 STAT. 166), IT WAS APPRISED OF AN ADMINISTRATIVE
INTERPRETATION OF SEC. 8(C) THAT A VETERAN WAS ENTITLED TO HIS FORMER
JOB REGARDLESS OF SENIORITY; AND THAT THEREFORE CONGRESSIONAL APPROVAL
OF OR ACQUIESCENCE IN THE ADMINISTRATIVE CONSTRUCTION WOULD BE
INFERRED.  SEE MASSACHUSETTS MUTUAL LIFE INS. CO. V. UNITED STATES, 288
U.S. 269, 273, AND CASES CITED.  AN ADMINISTRATIVE INTERPRETATION WAS
RENDERED BY THE DIRECTOR OF SELECTIVE SERVICE WHO WAS AUTHORIZED TO
ADMINISTER THE ACT.  FN14  HE HAD RULED THAT THE ACT REQUIRED
REINSTATEMENT OF A VETERAN TO "HIS FORMER POSITION OR ONE OF LIKE
SENIORITY, STATUS, AND PAY EVEN THOUGH SUCH REINSTATEMENT NECESSITATES
THE DISCHARGE OF A NONVETERAN WITH A GREATER SENIORITY."  FN15  BUT A
DIFFERENT CONSTRUCTION WAS GIVEN TO SEC. 8(C) BY THE NATIONAL WAR LABOR
BOARD IN ITS HANDLING OF DISPUTES ARISING OUT OF THE NEGOTIATION OF
COLLECTIVE BARGAINING AGREEMENTS.  FN16  THE BOARD READ THE ACT AS WE
READ IT.  THE RULING OF THE DIRECTOR MAY BE RESORTED TO FOR GUIDANCE. 
SEE SKIDMORE V. SWIFT & CO., 323 U.S. 134, 140; MABEE V. WHITE PLAINS
PUB. CO., 327 U.S. 178.  BUT HIS RULINGS ARE NOT MADE IN ADVERSARY
PROCEEDINGS AND ARE NOT ENTITLED TO THE WEIGHT WHICH IS ACCORDED
INTERPRETATIONS BY ADMINISTRATIVE AGENCIES ENTRUSTED WITH THE
RESPONSIBILITY OF MAKING INTER PARTES DECISIONS.  SKIDMORE V. SWIFT &
CO., SUPRA, P. 139.  THE HISTORY AND LANGUAGE OF THE ACT WOULD NEED BE
FAR LESS CLEAR FOR US TO GIVE HIS RULINGS PERSUASIVE WEIGHT.  MOREOVER,
AS THE CIRCUIT COURT OF APPEALS POINTED OUT, THE CONTRARIETY OF
ADMINISTRATIVE RULINGS  FN17  LENDS LESS CREDENCE TO THE CONTENTION
THAT CONGRESS BY THE AMENDMENT IN 1944 AND THE EXTENSION IN 1945 SHOWED
A PREFERENCE FOR ONE OVER THE OTHER.  IN VIEW OF THE LANGUAGE OF THE
ACT AND THE NATURE OF THE ADMINISTRATIVE FINDINGS, WE WOULD WANT
EXPLICIT INDICATION BY CONGRESS THAT IT CHOSE THE DIRECTOR'S
INTERPRETATION BEFORE WE CONCLUDED THAT CONGRESS HAD ADOPTED IT.
AFFIRMED. 

FN1  THE ACT PROVIDES IN PART: 

"SEC. 8(A)  ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES UNDER
THIS ACT FOR TRAINING AND SERVICE, WHO, IN THE JUDGMENT OF THOSE IN
AUTHORITY OVER HIM, SATISFACTORILY COMPLETES HIS PERIOD OF TRAINING AND
SERVICE UNDER SECTION 3(B) SHALL BE ENTITLED TO A CERTIFICATE TO THAT
EFFECT UPON THE COMPLETION OF SUCH PERIOD OF TRAINING AND SERVICE,
WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT
ATTAINED.... 

"(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, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH
POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS
AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE - 

"(A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES
GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF
COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A
POSITION OF LIKE SENIORITY, STATUS, AND PAY; 

"(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;
..." 

THE FORTY-DAY PERIOD HAS BEEN EXTENDED TO NINETY DAYS.  SECTION 8(B)
AS AMENDED IN 1944, 58 STAT. 798, GIVES THE VETERAN A RIGHT TO BE
REEMPLOYED IF HE MAKES APPLICATION "WITHIN NINETY DAYS AFTER HE IS
RELIEVED FROM SUCH TRAINING AND SERVICE OR FROM HOSPITALIZATION
CONTINUING AFTER DISCHARGE FOR A PERIOD OF NOT MORE THAN ONE YEAR." 

FN2  THE AGREEMENT ALSO PROVIDED: 

"ANY EMPLOYEE OTHER THAN A PROBATIONARY EMPLOYEE WHO IS DRAFTED OR
VOLUNTEERS FOR THE NAVAL, MILITARY OR MERCHANT MARINE SERVICE OF THE
UNITED STATES, SHALL RETAIN HIS SENIORITY STANDING.  IN ANY FURTHER
DETERMINATION OF SAID EMPLOYEE'S SENIORITY STATUS, THE LENGTH OF TIME
SPENT BY THE EMPLOYEE IN SUCH SERVICE SHALL COUNT TOWARD HIS SENIORITY
AS IF HE WERE ACTUALLY AND CONTINUOUSLY EMPLOYED BY THE COMPANY.  ANY
SUCH EMPLOYEE WHO VOLUNTEERS OR IS DRAFTED MUST GIVE THE COMPANY NOTICE
OF HIS INTENTION TO SO LEAVE HIS EMPLOYMENT.  ANY SUCH EMPLOYEE WHO,
WITHIN FORTY (40) DAYS AFTER HIS RELEASE OR DISCHARGE FROM SAID SERVICE
APPLIES FOR RE-EMPLOYMENT, SHALL BE REHIRED BY THE COMPANY, PROVIDED
WORK IS AVAILABLE AND THE EMPLOYEE IS REASONABLY FIT FOR DUTY. 
AVAILABILITY FOR WORK WILL BE DETERMINED ACCORDING TO ACCUMULATED
SENIORITY AND ABILITY.  IF RE-EMPLOYED, SAID EMPLOYEE SHALL THEN
RECEIVE THE THEN CURRENT RATE OF PAY FOR THE JOB FOR WHICH HE IS RE
EMPLOYED." 

FN3  SECTION 8(E) PROVIDES: 

"IN CASE ANY PRIVATE EMPLOYER FAILS OR REFUSES TO COMPLY WITH THE
PROVISIONS OF SUBSECTION (B) OR SUBSECTION (C), THE DISTRICT COURT OF
THE UNITED STATES FOR THE DISTRICT IN WHICH SUCH PRIVATE EMPLOYER
MAINTAINS A PLACE OF BUSINESS SHALL HAVE POWER, UPON THE FILING OF A
MOTION, PETITION, OR OTHER APPROPRIATE PLEADING BY THE PERSON ENTITLED
TO THE BENEFITS OF SUCH PROVISIONS, TO SPECIFICALLY REQUIRE SUCH
EMPLOYER TO COMPLY WITH SUCH PROVISIONS, AND, AS AN INCIDENT THERETO,
TO COMPENSATE SUCH PERSON FOR ANY LOSS OF WAGES OR BENEFITS SUFFERED BY
REASON OF SUCH EMPLOYER'S UNLAWFUL ACTION.  THE COURT SHALL ORDER A
SPEEDY HEARING IN ANY SUCH CASE AND SHALL ADVANCE IT ON THE CALENDAR. 
UPON APPLICATION TO THE UNITED STATES DISTRICT ATTORNEY OR COMPARABLE
OFFICIAL FOR THE DISTRICT IN WHICH SUCH PRIVATE EMPLOYER MAINTAINS A
PLACE OF BUSINESS, BY ANY PERSON CLAIMING TO BE ENTITLED TO THE
BENEFITS OF SUCH PROVISIONS, SUCH UNITED STATES DISTRICT ATTORNEY OR
OFFICIAL, IF REASONABLY SATISFIED THAT THE PERSON SO APPLYING IS
ENTITLED TO SUCH BENEFITS, SHALL APPEAR AND ACT AS ATTORNEY FOR SUCH
PERSON IN THE AMICABLE ADJUSTMENT OF THE CLAIM OR IN THE FILING OF ANY
MOTION, PETITION, OR OTHER APPROPRIATE PLEADING AND THE PROSECUTION
THEREOF TO SPECIFICALLY REQUIRE SUCH EMPLOYER TO COMPLY WITH SUCH
PROVISIONS: PROVIDED, THAT NO FEES OR COURT COSTS SHALL BE TAXED
AGAINST THE PERSON SO APPLYING FOR SUCH BENEFITS." 

THE UNITED STATES APPEARED AS AMICUS CURIAE IN THE CIRCUIT COURT OF
APPEALS.  IT APPEARS IN THIS COURT AS REPRESENTATIVE OF PETITIONER BY
REASON OF THE PROVISIONS OF SEC. 8(E). 

FN4  PERMISSIVE INTERVENTION IS GOVERNED BY RULE 24(B) OF THE RULES
OF CIVIL PROCEDURE WHICH ALLOWS IT ON TIMELY APPLICATION "WHEN AN
APPLICANT'S CLAIM OR DEFENSE AND THE MAIN ACTION HAVE A QUESTION OF LAW
OR FACT IN COMMON." 

FN5  SECTION 8(C) OF THE ACT PROVIDES: 

"ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE
CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS
PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO
RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN
INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO
ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR
LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON
WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH
POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION." 

PARAGRAPHS (A) AND (B) OF SUBSECTION (B) OF SEC. 8 ARE SET FORTH IN
NOTE 1, SUPRA. 

FN6  IN THAT CASE BOSTON TOW BOAT CO. INTERVENED IN A PROCEEDING
BEFORE THE INTERSTATE COMMERCE COMMISSION INVOLVING THE STATUS OF
ANOTHER CARRIER.  IT SOUGHT TO APPEAL FROM THE ADVERSE DECISION AGAINST
THE OTHER CARRIER.  THAT RIGHT WAS DENIED.  THE ORDER IN QUESTION WAS
NOT DETERMINATIVE OF THE STATUS OF BOSTON TOW BOAT CO. THAT QUESTION
WAS INVOLVED IN ANOTHER ORDER OF THE COMMISSION FROM WHICH BOSTON TOW
BOAT CO. HAD AN APPEAL PENDING. 

FN7  THE CASE IS THEREFORE CLOSELY ANALOGOUS TO ONE WHERE THE
INTEREST OF AN INTERVENOR IN PROPERTY INVOLVED IN THE LITIGATION WAS
ADJUDICATED.  DEXTER HORTON NATIONAL BANK V. HAWKINS, 190 F. 924;
UNITED STATES V. NORTHWESTERN DEVELOPMENT CO., 203 F. 960. 

FN8  SECTION 8(B) IS SET FORTH IN NOTE 1, SUPRA, AND SEC. 8(C) IN
NOTE 5, SUPRA. 

FN9  AS WE HAVE NOTED, THE ORIGINAL FORTY-DAY PERIOD HAS BEEN
EXTENDED TO NINETY DAYS.  SEE NOTE 1, SUPRA. 

FN10  "RELEASE OR DISMISSAL FROM AN OFFICE, EMPLOYMENT, ETC.; AS, THE
DISCHARGE OF A WORKMAN."  WEBSTER'S NEW INTERNATIONAL DICTIONARY (2D
ED.). 

"TO RELIEVE OF A CHARGE OR OFFICE; (MORE USUALLY) TO DISMISS FROM
OFFICE, SERVICE, OR EMPLOYMENT; TO CASHIER."  OXFORD ENGLISH
DICTIONARY.   FN11  TEMPORARY SUSPENSION OF AN EMPLOYEE'S WORK COMMONLY
DOES NOT AFFECT THE CONTINUANCE OF HIS STATUS.  SEE LABOR BOARD V.
WATERMAN S.S. CO., 309 U.S. 206; NORTH WHITTIER HEIGHTS CITRUS ASSN. V.
LABOR BOARD, 109 F.2D 76, 82. 

"LAY-OFF" IS DEFINED AS "A PERIOD DURING WHICH A WORKMAN IS
TEMPORARILY DISMISSED OR ALLOWED TO LEAVE HIS WORK; THAT PART OR SEASON
OF THE YEAR DURING WHICH ACTIVITY IN A PARTICULAR BUSINESS OR GAME IS
PARTLY OR COMPLETELY SUSPENDED; AN OFF-SEASON."  OXFORD ENGLISH
DICTIONARY, SUPP. 

FN12  SEE UNION AGREEMENT PROVISIONS, BUREAU OF LABOR STATISTICS,
DEPARTMENT OF LABOR, H. DOC. NO. 723, 77TH CONG., 2D SESS., CHS.  8,
14.    FN13  SEE NOTE 1, SUPRA. 

FN14  EXECUTIVE ORDER 8545, SEPTEMBER 23, 1940, 5 FED. REG. 3779. 

FN15  LOCAL BOARD MEMORANDUM 190-A, MAY 20, 1944, PART IV, SEC.
1(C). 

FN16  SEE SCOVILL MFG. CO., 21 WAR LABOR REP. 200, 201, 202. 

FN17  SEE NOTE 54 YALE L. JOURN.  417. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

I BELIEVE WE SHOULD REVERSE THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS AND REMAND THE CAUSE TO IT WITH DIRECTIONS TO DISMISS THE
APPEAL FOR WANT OF JURISDICTION BECAUSE THE UNION WAS NOT A PROPER
PARTY TO APPEAL.  THE MONEY JUDGMENT WAS IN FAVOR OF FISHGOLD AND
AGAINST THE SULLIVAN DRY DOCK AND REPAIR COMPANY.  HAD THE COMPANY PAID
THE JUDGMENT, I SEE NO WAY IN WHICH THE UNION WOULD HAVE BEEN
"AGGRIEVED."  THE ONLY REASON ADVANCED BY THE COURT FOR HOLDING THAT
THE UNION WAS "AGGRIEVED" IS THAT, HAD THE DISTRICT COURT JUDGMENT
REMAINED ON THE BOOKS, THE JUDICIALLY FORMULATED DOCTRINE OF RES
JUDICATA WOULD HAVE BARRED THE UNION IN ANY FUTURE PROCEEDINGS FROM
CHALLENGING THE DISTRICT COURT'S APPLICATION OF THE FEDERAL STATUTE TO
THE PARTICULAR COLLECTIVE BARGAINING AGREEMENT.  A FAIR APPLICATION OF
RES JUDICATA BARS A PARTY IN A SECOND LITIGATION ONLY IF THAT
PROCEEDING INVOLVES THE SAME ISSUES AS THE FIRST LITIGATION BETWEEN THE
SAME ADVERSE PARTIES OR PRIVIES.  THIS MEANS THAT RES JUDICATA COULD
BAR THE UNION ONLY IN A NEW PROCEEDING BETWEEN IT AND FISHGOLD OR HIS
PRIVIES.  BUT THERE IS NO POSSIBILITY OF SUCH LITIGATION SINCE THE
SENIORITY RIGHT WHICH THE DISTRICT COURT HELD FISHGOLD HAD UNDER THE
STATUTE HAD UNDER ITS PROVISIONS EXPIRED BY THE TIME THE UNION
APPEALED.  RES JUDICATA WOULD NOT HAVE BARRED THE UNION IN A PROCEEDING
BETWEEN IT AND ANY OTHER PARTY, SINCE NO OTHER PARTY WAS A PARTY
ADVERSE TO THE UNION IN THE PRESENT SUIT.  AND THIS INCLUDES ANY
POSSIBLE PROCEEDING BETWEEN THE UNION AND THE SULLIVAN DRY DOCK COMPANY
SINCE THAT COMPANY, THOUGH A PARTY, WAS NOT AN ADVERSE PARTY IN THE
TRIAL COURT.  NONE OF THE CASES CITED BY THE COURT'S OPINION SUPPORT
THE PROPOSITION THAT A PARTY IS BOUND IN A FUTURE LITIGATION AGAINST A
PARTY THAT WAS NOT AN ADVERSE PARTY, BUT ON THE SAME SIDE, IN THE
EARLIER LITIGATION.  NOR DO THESE CASES, OR ANY OTHER DECISION OF THIS
COURT OF WHICH I AM AWARE, FORMULATE AS THE RULE OF THIS COURT THE
HARSH DOCTRINE OF COLLATERAL ESTOPPEL, ADOPTED IN A FEW STATE
JURISDICTIONS, WHICH ALWAYS BARS A LOSING PARTY, SO LONG AS THE ISSUE
IS THE SAME, EVEN THOUGH THE LATER LITIGATION INVOLVES DIFFERENT
ADVERSE PARTIES.  IT IS UNLIKELY THAT THIS HARSH DOCTRINE, NEVER
ADOPTED BY THIS COURT, WOULD IN THE FUTURE HAVE BEEN APPLIED TO BAR THE
UNION IN ANY FURTHER PROCEEDINGS INVOLVING INTERPRETATION OF THE SCOPE
OF ITS COLLECTIVE BARGAINING AGREEMENT IN THE LIGHT OF THE FEDERAL
STATUTE.  IN MY OPINION THE UNION WOULD NOT HAVE BEEN BARRED BY THE
TRIAL COURT'S JUDGMENT.  IT WAS THEREFORE NOT AN AGGRIEVED PARTY AND
NOT ENTITLED TO APPEAL. 

THE RESULT OF PERMITTING PARTIES NOT ADVERSELY AFFECTED TO APPEAL A
JUDGMENT IS TO IMPOSE BURDENS UPON LITIGANTS ACTUALLY INTERESTED WHEN
THOSE LITIGANTS MAY THEMSELVES BE FULLY SATISFIED WITH THE JUDGMENT. 
THE SCOPE OF RES JUDICATA SHOULD NOT BE EXTENDED TO PRODUCE SUCH A
RESULT.  THIS CASE ILLUSTRATES THE WISDOM OF THE PRACTICE WHICH PERMITS
PARTIES TO SETTLE THEIR OWN LAWSUITS WITHOUT INTERVENTION BY OTHERS
INTERESTED ONLY IN PRECEDENTS.  BOSTON TOW BOAT CO. V. UNITED STATES,
321 U.S. 632. 
..END :




S.E.C. V. HOWEY CO., 328 U.S. 293 


NO. 843.  ARGUED MAY 2, 1946.  - DECIDED MAY 27, 1946.  - 151 F.2D 714,
REVERSED. 


1.  UPON THE FACTS OF THIS CASE, AN OFFERING OF UNITS OF A CITRUS
GROVE DEVELOPMENT COUPLED WITH A CONTRACT FOR CULTIVATING, MARKETING
AND REMITTING THE NET PROCEEDS TO THE INVESTOR, WAS AN OFFERING OF AN
"INVESTMENT CONTRACT" WITHIN THE MEANING OF THAT TERM AS USED IN THE
PROVISION OF SEC. 2(1) OF THE SECURITIES ACT OF 1933 DEFINING
"SECURITY" AS INCLUDING ANY "INVESTMENT CONTRACT," AND WAS THEREFORE
SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE ACT.  PP. 294-297,
299. 

2.  FOR PURPOSES OF THE SECURITIES ACT, AN INVESTMENT CONTRACT
(UNDEFINED BY THE ACT) MEANS A CONTRACT, TRANSACTION OR SCHEME WHEREBY
A PERSON INVESTS HIS MONEY IN A COMMON ENTERPRISE AND IS LED TO EXPECT
PROFITS SOLELY FROM THE EFFORTS OF THE PROMOTER OR A THIRD PARTY, IT
BEING IMMATERIAL WHETHER THE SHARES IN THE ENTERPRISE ARE EVIDENCED BY
FORMAL CERTIFICATES OR BY NOMINAL INTERESTS IN THE PHYSICAL ASSETS
EMPLOYED IN THE ENTERPRISE.  PP. 298-299. 

3. THE FACT THAT SOME PURCHASERS, BY DECLINING TO ENTER INTO THE
SERVICE CONTRACT, CHOSE NOT TO ACCEPT THE OFFER OF THE INVESTMENT
CONTRACT IN ITS ENTIRETY, DOES NOT REQUIRE A DIFFERENT RESULT, SINCE
THE SECURITIES ACT PROHIBITS THE OFFER AS WELL AS THE SALE OF
UNREGISTERED, NONEXEMPT SECURITIES.  P. 300. 

4.  THE TEST OF WHETHER THERE IS AN "INVESTMENT CONTRACT" UNDER THE
SECURITIES ACT IS WHETHER THE SCHEME INVOLVES AN INVESTMENT OF MONEY IN
A COMMON ENTERPRISE WITH PROFITS TO COME SOLELY FROM THE EFFORTS OF
OTHERS; AND, IF THAT TEST BE SATISFIED, IT IS IMMATERIAL WHETHER THE
ENTERPRISE IS SPECULATIVE OR NON-SPECULATIVE OR WHETHER THERE IS A SALE
OF PROPERTY WITH OR WITHOUT INTRINSIC VALUE.  P. 301. 

5.  THE POLICY OF THE SECURITIES ACT OF AFFORDING BROAD PROTECTION TO
INVESTORS IS NOT TO BE THWARTED BY UNREALISTIC AND IRRELEVANT
FORMULAE.  P. 301. 

SECURITIES & EXCHANGE COMMISSION V. W.J. HOWEY CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

THE SECURITIES & EXCHANGE COMMISSION SUED IN THE DISTRICT COURT TO
ENJOIN RESPONDENTS FROM USING THE MAILS AND INSTRUMENTALITIES OF
INTERSTATE COMMERCE IN THE OFFER AND SALE OF UNREGISTERED AND NON
EXEMPT SECURITIES IN VIOLATION OF THE SECURITIES ACT OF 1933.  THE
DISTRICT COURT DENIED THE INJUNCTION.  60 F.SUPP.  440.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  151 F.2D 714.  THIS COURT GRANTED
CERTIORARI.  327 U.S. 773.  REVERSED, P. 301. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE APPLICATION OF SEC. 2(1) OF THE SECURITIES ACT
OF 1933  FN1  TO AN OFFERING OF UNITS OF A CITRUS GROVE DEVELOPMENT
COUPLED WITH A CONTRACT FOR CULTIVATING, MARKETING AND REMITTING THE
NET PROCEEDS TO THE INVESTOR. 

THE SECURITIES AND EXCHANGE COMMISSION INSTITUTED THIS ACTION TO
RESTRAIN THE RESPONDENTS FROM USING THE MAILS AND INSTRUMENTALITIES OF
INTERSTATE COMMERCE IN THE OFFER AND SALE OF UNREGISTERED AND NON
EXEMPT SECURITIES IN VIOLATION OF SEC. 5(A) OF THE ACT.  THE DISTRICT
COURT DENIED THE INJUNCTION, 60 F.SUPP.  440, AND THE FIFTH CIRCUIT
COURT OF APPEALS AFFIRMED THE JUDGMENT, 151 F.2D 714.  WE GRANTED
CERTIORARI ON A PETITION ALLEGING THAT THE RULING OF THE CIRCUIT COURT
OF APPEALS CONFLICTED WITH OTHER FEDERAL AND STATE DECISIONS AND THAT
IT INTRODUCED A NOVEL AND UNWARRANTED TEST UNDER THE STATUTE WHICH THE
COMMISSION REGARDED AS ADMINISTRATIVELY IMPRACTICAL. 

MOST OF THE FACTS ARE STIPULATED.  THE RESPONDENTS, W.J. HOWEY
COMPANY AND HOWEY-IN-THE-HILLS SERVICE, INC., ARE FLORIDA CORPORATIONS
UNDER DIRECT COMMON CONTROL AND MANAGEMENT.  THE HOWEY COMPANY OWNS
LARGE TRACTS OF CITRUS ACREAGE IN LAKE COUNTY, FLORIDA.  DURING THE
PAST SEVERAL YEARS IT HAS PLANTED ABOUT 500 ACRES ANNUALLY, KEEPING
HALF OF THE GROVES ITSELF AND OFFERING THE OTHER HALF TO THE PUBLIC "TO
HELP US FINANCE ADDITIONAL DEVELOPMENT."  HOWEY-IN-THE-HILLS SERVICE,
INC., IS A SERVICE COMPANY ENGAGED IN CULTIVATING AND DEVELOPING MANY
OF THESE GROVES, INCLUDING THE HARVESTING AND MARKETING OF THE CROPS. 

EACH PROSPECTIVE CUSTOMER IS OFFERED BOTH A LAND SALES CONTRACT AND A
SERVICE CONTRACT, AFTER HAVING BEEN TOLD THAT IT IS NOT FEASIBLE TO
INVEST IN A GROVE UNLESS SERVICE ARRANGEMENTS ARE MADE.  WHILE THE
PURCHASER IS FREE TO MAKE ARRANGEMENTS WITH OTHER SERVICE COMPANIES,
THE SUPERIORITY OF HOWEY-IN-THE-HILLS SERVICE, INC., IS STRESSED. 
INDEED, 85% OF THE ACREAGE SOLD DURING THE 3-YEAR PERIOD ENDING MAY 31,
1943, WAS COVERED BY SERVICE CONTRACTS WITH HOWEY-IN-THE-HILLS SERVICE,
INC. 

THE LAND SALES CONTRACT WITH THE HOWEY COMPANY PROVIDES FOR A UNIFORM
PURCHASE PRICE PER ACRE OR FRACTION THEREOF, VARYING IN AMOUNT ONLY IN
ACCORDANCE WITH THE NUMBER OF YEARS THE PARTICULAR PLOT HAS BEEN
PLANTED WITH CITRUS TREES.  UPON FULL PAYMENT OF THE PURCHASE PRICE THE
LAND IS CONVEYED TO THE PURCHASER BY WARRANTY DEED.  PURCHASES ARE
USUALLY MADE IN NARROW STRIPS OF LAND ARRANGED SO THAT AN ACRE CONSISTS
OF A ROW OF 48 TREES.  DURING THE PERIOD BETWEEN FEBRUARY 1, 1941, AND
MAY 31, 1943, 31 OF THE 42 PERSONS MAKING PURCHASES BOUGHT LESS THAN 5
ACRES EACH.  THE AVERAGE HOLDING OF THESE 31 PERSONS WAS 1.33 ACRES AND
SALES OF AS LITTLE AS 0.65, 0.7 AND 0.73 OF AN ACRE WERE MADE.  THESE
TRACTS ARE NOT SEPARATELY FENCED AND THE SOLE INDICATION OF SEVERAL
OWNERSHIP IS FOUND IN SMALL LAND MARKS INTELLIGIBLE ONLY THROUGH A PLAT
BOOK RECORD. 

THE SERVICE CONTRACT, GENERALLY OF A 10-YEAR DURATION WITHOUT OPTION
OF CANCELLATION, GIVES HOWEY-IN-THE-HILLS SERVICE, INC., A LEASEHOLD
INTEREST AND "FULL AND COMPLETE" POSSESSION OF THE ACREAGE.  FOR A
SPECIFIED FEE PLUS THE COST OF LABOR AND MATERIALS, THE COMPANY IS
GIVEN FULL DISCRETION AND AUTHORITY OVER THE CULTIVATION OF THE GROVES
AND THE HARVEST AND MARKETING OF THE CROPS.  THE COMPANY IS WELL
ESTABLISHED IN THE CITRUS BUSINESS AND MAINTAINS A LARGE FORCE OF
SKILLED PERSONNEL AND A GREAT DEAL OF EQUIPMENT, INCLUDING 75 TRACTORS,
SPRAYER WAGONS, FERTILIZER TRUCKS AND THE LIKE.  WITHOUT THE CONSENT OF
THE COMPANY, THE LAND OWNER OR PURCHASER HAS NO RIGHT OF ENTRY TO
MARKET THE CROP; FN2  THUS THERE IS ORDINARILY NO RIGHT TO SPECIFIC
FRUIT.  THE COMPANY IS ACCOUNTABLE ONLY FOR AN ALLOCATION OF THE NET
PROFITS BASED UPON A CHECK MADE AT THE TIME OF PICKING.  ALL THE
PRODUCE IS POOLED BY THE RESPONDENT COMPANIES, WHICH DO BUSINESS UNDER
THEIR OWN NAMES. 

THE PURCHASERS FOR THE MOST PART ARE NON-RESIDENTS OF FLORIDA.  THEY
ARE PREDOMINANTLY BUSINESS AND PROFESSIONAL PEOPLE WHO LACK THE
KNOWLEDGE, SKILL AND EQUIPMENT NECESSARY FOR THE CARE AND CULTIVATION
OF CITRUS TREES.  THEY ARE ATTRACTED BY THE EXPECTATION OF SUBSTANTIAL
PROFITS.  IT WAS REPRESENTED, FOR EXAMPLE, THAT PROFITS DURING THE 1943
1944 SEASON AMOUNTED TO 20% AND THAT EVEN GREATER PROFITS MIGHT BE
EXPECTED DURING THE 1944-1945 SEASON, ALTHOUGH ONLY A 10% ANNUAL RETURN
WAS TO BE EXPECTED OVER A 10-YEAR PERIOD.  MANY OF THESE PURCHASERS ARE
PATRONS OF A RESORT HOTEL OWNED AND OPERATED BY THE HOWEY COMPANY IN A
SCENIC SECTION ADJACENT TO THE GROVES.  THE HOTEL'S ADVERTISING
MENTIONS THE FINE GROVES IN THE VICINITY AND THE ATTENTION OF THE
PATRONS IS DRAWN TO THE GROVES AS THEY ARE BEING ESCORTED ABOUT THE
SURROUNDING COUNTRYSIDE.  THEY ARE TOLD THAT THE GROVES ARE FOR SALE;
IF THEY INDICATE AN INTEREST IN THE MATTER THEY ARE THEN GIVEN A SALES
TALK. 

IT IS ADMITTED THAT THE MAILS AND INSTRUMENTALITIES OF INTERSTATE
COMMERCE ARE USED IN THE SALE OF THE LAND AND SERVICE CONTRACTS AND
THAT NO REGISTRATION STATEMENT OR LETTER OF NOTIFICATION HAS EVER BEEN
FILED WITH THE COMMISSION IN ACCORDANCE WITH THE SECURITIES ACT OF 1933
AND THE RULES AND REGULATIONS THEREUNDER. 

COMMONLY KNOWN DOCUMENTS TRADED FOR SPECULATION OR INVESTMENT.  FN3
THIS DEFINITION ALSO INCLUDES "SECURITIES" OF A MORE VARIABLE
CHARACTER, DESIGNATED BY SUCH DESCRIPTIVE TERMS AS "CERTIFICATE OF
INTEREST OR PARTICIPATION IN ANY PROFIT-SHARING AGREEMENT," "INVESTMENT
CONTRACT" AND "IN GENERAL, ANY INTEREST OR INSTRUMENT COMMONLY KNOWN AS
A 'SECURITY.'"  THE LEGAL ISSUE IN THIS CASE TURNS UPON A DETERMINATION
OF WHETHER, UNDER THE CIRCUMSTANCES, THE LAND SALES CONTRACT, THE
WARRANTY DEED AND THE SERVICE CONTRACT TOGETHER CONSTITUTE AN
"INVESTMENT CONTRACT" WITHIN THE MEANING OF SEC. 2(1).  AN AFFIRMATIVE
ANSWER BRINGS INTO OPERATION THE REGISTRATION REQUIREMENTS OF SEC.
5(A), UNLESS THE SECURITY IS GRANTED AN EXEMPTION UNDER SEC. 3(B).  THE
LOWER COURTS, IN REACHING A NEGATIVE ANSWER TO THIS PROBLEM, TREATED
THE CONTRACTS AND DEEDS AS SEPARATE TRANSACTIONS INVOLVING NO MORE THAN
AN ORDINARY REAL ESTATE SALE AND AN AGREEMENT BY THE SELLER TO MANAGE
THE PROPERTY FOR THE BUYER. 

THE TERM "INVESTMENT CONTRACT" IS UNDEFINED BY THE SECURITIES ACT OR
BY RELEVANT LEGISLATIVE REPORTS.  BUT THE TERM WAS COMMON IN MANY STATE
"BLUE SKY" LAWS IN EXISTENCE PRIOR TO THE ADOPTION OF THE FEDERAL
STATUTE AND, ALTHOUGH THE TERM WAS ALSO UNDEFINED BY THE STATE LAWS, IT
HAD BEEN BROADLY CONSTRUED BY STATE COURTS SO AS TO AFFORD THE
INVESTING PUBLIC A FULL MEASURE OF PROTECTION.  FORM WAS DISREGARDED
FOR SUBSTANCE AND EMPHASIS WAS PLACED UPON ECONOMIC REALITY.  AN
INVESTMENT CONTRACT THUS CAME TO MEAN A CONTRACT OR SCHEME FOR "THE
PLACING OF CAPITAL OR LAYING OUT OF MONEY IN A WAY INTENDED TO SECURE
INCOME OR PROFIT FROM ITS EMPLOYMENT."  STATE V. GOPHER TIRE & RUBBER
CO., 146 MINN. 52, 56, 177 N.W. 937, 938.  THIS DEFINITION WAS
UNIFORMLY APPLIED BY STATE COURTS TO A VARIETY OF SITUATIONS WHERE
INDIVIDUALS WERE LED TO INVEST MONEY IN A COMMON ENTERPRISE WITH THE
EXPECTATION THAT THEY WOULD EARN A PROFIT SOLELY THROUGH THE EFFORTS OF
THE PROMOTER OR OF SOME ONE OTHER THAN THEMSELVES.  FN4 

BY INCLUDING AN INVESTMENT CONTRACT WITHIN THE SCOPE OF SEC. 2(1) OF
THE SECURITIES ACT, CONGRESS WAS USING A TERM THE MEANING OF WHICH HAD
BEEN CRYSTALLIZED BY THIS PRIOR JUDICIAL INTERPRETATION.  IT IS
THEREFORE REASONABLE TO ATTACH THAT MEANING TO THE TERM AS USED BY
CONGRESS, ESPECIALLY SINCE SUCH A DEFINITION IS CONSISTENT WITH THE
STATUTORY AIMS.  IN OTHER WORDS, AN INVESTMENT CONTRACT FOR PURPOSES OF
THE SECURITIES ACT MEANS A CONTRACT, TRANSACTION OR SCHEME WHEREBY A
PERSON INVESTS HIS MONEY IN A COMMON ENTERPRISE AND IS LED TO EXPECT
PROFITS SOLELY FROM THE EFFORTS OF THE PROMOTER OR A THIRD PARTY, IT
BEING IMMATERIAL WHETHER THE SHARES IN THE ENTERPRISE ARE EVIDENCED BY
FORMAL CERTIFICATES OR BY NOMINAL INTERESTS IN THE PHYSICAL ASSETS
EMPLOYED IN THE ENTERPRISE.  SUCH A DEFINITION NECESSARILY UNDERLIES
THIS COURT'S DECISION IN S.E.C. V. JOINER CORP., 320 U.S. 344, AND HAS
BEEN ENUNCIATED AND APPLIED MANY TIMES BY LOWER FEDERAL COURTS.  FN5
IT PERMITS THE FULFILLMENT OF THE STATUTORY PURPOSE OF COMPELLING FULL
AND FAIR DISCLOSURE RELATIVE TO THE ISSUANCE OF "THE MANY TYPES OF
INSTRUMENTS THAT IN OUR COMMERCIAL WORLD FALL WITHIN THE ORDINARY
CONCEPT OF A SECURITY."  H. REP. NO. 85, 73D CONG., 1ST SESS., P. 11. 
IT EMBODIES A FLEXIBLE RATHER THAN A STATIC PRINCIPLE, ONE THAT IS
CAPABLE OF ADAPTATION TO MEET THE COUNTLESS AND VARIABLE SCHEMES
DEVISED BY THOSE WHO SEEK THE USE OF THE MONEY OF OTHERS ON THE PROMISE
OF PROFITS. 

THE TRANSACTIONS IN THIS CASE CLEARLY INVOLVE INVESTMENT CONTRACTS AS
SO DEFINED.  THE RESPONDENT COMPANIES ARE OFFERING SOMETHING MORE THAN
FEE SIMPLE INTERESTS IN LAND, SOMETHING DIFFERENT FROM A FARM OR
ORCHARD COUPLED WITH MANAGEMENT SERVICES.  THEY ARE OFFERING AN
OPPORTUNITY TO CONTRIBUTE MONEY AND TO SHARE IN THE PROFITS OF A LARGE
CITRUS FRUIT ENTERPRISE MANAGED AND PARTLY OWNED BY RESPONDENTS.  THEY
ARE OFFERING THIS OPPORTUNITY TO PERSONS WHO RESIDE IN DISTANT
LOCALITIES AND WHO LACK THE EQUIPMENT AND EXPERIENCE REQUISITE TO THE
CULTIVATION, HARVESTING AND MARKETING OF THE CITRUS PRODUCTS.  SUCH
PERSONS HAVE NO DESIRE TO OCCUPY THE LAND OR TO DEVELOP IT THEMSELVES;
THEY ARE ATTRACTED SOLELY BY THE PROSPECTS OF A RETURN ON THEIR
INVESTMENT.  INDEED, INDIVIDUAL DEVELOPMENT OF THE PLOTS OF LAND THAT
ARE OFFERED AND SOLD WOULD SELDOM BE ECONOMICALLY FEASIBLE DUE TO THEIR
SMALL SIZE.  SUCH TRACTS GAIN UTILITY AS CITRUS GROVES ONLY WHEN
CULTIVATED AND DEVELOPED AS COMPONENT PARTS OF A LARGER AREA.  A COMMON
ENTERPRISE MANAGED BY RESPONDENTS OR THIRD PARTIES WITH ADEQUATE
PERSONNEL AND EQUIPMENT IS THEREFORE ESSENTIAL IF THE INVESTORS ARE TO
ACHIEVE THEIR PARAMOUNT AIM OF A RETURN ON THEIR INVESTMENTS.  THEIR
RESPECTIVE SHARES IN THIS ENTERPRISE ARE EVIDENCED BY LAND SALES
CONTRACTS AND WARRANTY DEEDS, WHICH SERVE AS A CONVENIENT METHOD OF
DETERMINING THE INVESTORS' ALLOCABLE SHARES OF THE PROFITS.  THE
RESULTING TRANSFER OF RIGHTS IN LAND IS PURELY INCIDENTAL. 

THUS ALL THE ELEMENTS OF A PROFIT-SEEKING BUSINESS VENTURE ARE
PRESENT HERE.  THE INVESTORS PROVIDE THE CAPITAL AND SHARE IN THE
EARNINGS AND PROFITS; THE PROMOTERS MANAGE, CONTROL AND OPERATE THE
ENTERPRISE.  IT FOLLOWS THAT THE ARRANGEMENTS WHEREBY THE INVESTORS'
INTERESTS ARE MADE MANIFEST INVOLVE INVESTMENT CONTRACTS, REGARDLESS OF
THE LEGAL TERMINOLOGY IN WHICH SUCH CONTRACTS ARE CLOTHED.  THE
INVESTMENT CONTRACTS IN THIS INSTANCE TAKE THE FORM OF LAND SALES
CONTRACTS, WARRANTY DEEDS AND SERVICE CONTRACTS WHICH RESPONDENTS OFFER
TO PROSPECTIVE INVESTORS.  AND RESPONDENTS' FAILURE TO ABIDE BY THE
STATUTORY AND ADMINISTRATIVE RULES IN MAKING SUCH OFFERINGS, EVEN
THOUGH THE FAILURE RESULT FROM A BONA FIDE MISTAKE AS TO THE LAW,
CANNOT BE SANCTIONED UNDER THE ACT. 

THIS CONCLUSION IS UNAFFECTED BY THE FACT THAT SOME PURCHASERS CHOOSE
NOT TO ACCEPT THE FULL OFFER OF AN INVESTMENT CONTRACT BY DECLINING TO
ENTER INTO A SERVICE CONTRACT WITH THE RESPONDENTS.  THE SECURITIES ACT
PROHIBITS THE OFFER AS WELL AS THE SALE OF UNREGISTERED, NON-EXEMPT
SECURITIES.  FN6  HENCE IT IS ENOUGH THAT THE RESPONDENTS MERELY OFFER
THE ESSENTIAL INGREDIENTS OF AN INVESTMENT CONTRACT. 

WE REJECT THE SUGGESTION OF THE CIRCUIT COURT OF APPEALS, 151 F.2D AT
717, THAT AN INVESTMENT CONTRACT IS NECESSARILY MISSING WHERE THE
ENTERPRISE IS NOT SPECULATIVE OR PROMOTIONAL IN CHARACTER AND WHERE THE
TANGIBLE INTEREST WHICH IS SOLD HAS INTRINSIC VALUE INDEPENDENT OF THE
SUCCESS OF THE ENTERPRISE AS A WHOLE.  THE TEST IS WHETHER THE SCHEME
INVOLVES AN INVESTMENT OF MONEY IN A COMMON ENTERPRISE WITH PROFITS TO
COME SOLELY FROM THE EFFORTS OF OTHERS.  IF THAT TEST BE SATISFIED, IT
IS IMMATERIAL WHETHER THE ENTERPRISE IS SPECULATIVE OR NON-SPECULATIVE
OR WHETHER THERE IS A SALE OF PROPERTY WITH OR WITHOUT INTRINSIC
VALUE.  SEE S.E.C. V. JOINER CORP., SUPRA, 352.  THE STATUTORY POLICY
OF AFFORDING BROAD PROTECTION TO INVESTORS IS NOT TO BE THWARTED BY
UNREALISTIC AND IRRELEVANT FORMULAE.  REVERSED. 

FN1  48 STAT. 74, 15 U.S.C. SEC. 77B (1). 

FN2  SOME INVESTORS VISITED THEIR PARTICULAR PLOTS ANNUALLY, MAKING
SUGGESTIONS AS TO CARE AND CULTIVATION, BUT WITHOUT ANY LEGAL RIGHTS IN
THE MATTERS. 

FN3  "THE TERM 'SECURITY' MEANS ANY NOTE, STOCK, TREASURY STOCK,
BOND, DEBENTURE, EVIDENCE OF INDEBTEDNESS, CERTIFICATE OF INTEREST OR
PARTICIPATION IN ANY PROFIT-SHARING AGREEMENT, COLLATERAL-TRUST
CERTIFICATE, PREORGANIZATION CERTIFICATE OR SUBSCRIPTION, TRANSFERABLE
SHARE, INVESTMENT CONTRACT, VOTING-TRUST CERTIFICATE, CERTIFICATE OF
DEPOSIT FOR A SECURITY, FRACTIONAL UNDIVIDED INTEREST IN OIL, GAS, OR
OTHER MINERAL RIGHTS, OR, IN GENERAL, ANY INTEREST OR INSTRUMENT
COMMONLY KNOWN AS A 'SECURITY,' OR ANY CERTIFICATE OF INTEREST OR
PARTICIPATION IN, TEMPORARY OR INTERIM CERTIFICATE FOR, RECEIPT FOR,
GUARANTEE OF, OR WARRANT OR RIGHT TO SUBSCRIBE TO OR PURCHASE, ANY OF
THE FOREGOING."    FN4  STATE V. EVANS, 154 MINN. 95, 191 N.W. 425;
KLATT V. GUARANTEED BOND CO., 213 WIS. 12, 250 N.W. 825; STATE V.
HEATH, 199 NC. 135, 153 S.E. 855; PROHASKA V. HEMMER-MILLER DEVELOPMENT
CO., 256 ILL. APP. 331; PEOPLE V. WHITE, 124 CAL. APP. 548, 12 P.2D
1078; STEVENS V. LIBERTY PACKING CORP., 111 N.J. EQ. 61, 161 A. 193. 
SEE ALSO MOORE V. STELLA, 52 CAL. APP.2D 766, 127 P.2D 300. 

FN5  ATHERTON V. UNITED STATES, 128 F.2D 463; PENFIELD CO. V. S.E.C.,
143 F.2D 746; S.E.C. V. UNIVERSAL SERVICE ASSN., 106 F.2D 232; S.E.C.
V. CRUDE OIL CORP., 93 F.2D 844; S.E.C. V. BAILEY, 41 F.SUPP.  647;
S.E.C. V. PAYNE, 35 F.SUPP.  873; S.E.C. V. BOURBON SALES CORP., 47
F.SUPP.  70; S.E.C. V. WICKHAM, 12 F.SUPP.  245; S.E.C. V. TIMETRUST,
INC., 28 F.SUPP.  34; S.E.C. V. PYNE, 33 F.SUPP.  988.  THE COMMISSION
HAS FOLLOWED THE SAME DEFINITION IN ITS OWN ADMINISTRATIVE
PROCEEDINGS.  IN RE NATURAL RESOURCES CORP., 8 S.E.C. 635. 

FN6  THE REGISTRATION REQUIREMENTS OF SEC. 5 REFER TO SALES OF
SECURITIES.  SECTION 2(3) DEFINES "SALE" TO INCLUDE EVERY "ATTEMPT OR
OFFER TO DISPOSE OF, OR SOLICITATION OF AN OFFER TO BUY," A SECURITY
FOR VALUE. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

"INVESTMENT CONTRACT" IS NOT A TERM OF ART; IT IS A CONCEPTION
DEPENDENT UPON THE CIRCUMSTANCES OF A PARTICULAR SITUATION.  IF THIS
CASE CAME BEFORE US ON A FINDING AUTHORIZED BY CONGRESS THAT THE FACTS
DISCLOSED AN "INVESTMENT CONTRACT" WITHIN THE GENERAL SCOPE OF SEC.
2(1) OF THE SECURITIES ACT, 48 STAT. 74, 15 U.S.C. SEC. 77B (1), THE
SECURITIES AND EXCHANGE COMMISSION'S FINDING WOULD GOVERN, UNLESS, ON
THE RECORD, IT WAS WHOLLY UNSUPPORTED.  BUT THAT IS NOT THE CASE BEFORE
US.  HERE THE ASCERTAINMENT OF THE EXISTENCE OF AN "INVESTMENT
CONTRACT" HAD TO BE MADE INDEPENDENTLY BY THE DISTRICT COURT AND IT
FOUND AGAINST ITS EXISTENCE.  60 F.SUPP.  440.  THE CIRCUIT COURT OF
APPEALS FOR THE FIFTH CIRCUIT SUSTAINED THAT FINDING.  151 F.2D 714. 
IF RESPECT IS TO BE PAID TO THE WISE RULE OF JUDICIAL ADMINISTRATION
UNDER WHICH THIS COURT DOES NOT UPSET CONCURRENT FINDINGS OF TWO LOWER
COURTS IN THE ASCERTAINMENT OF FACTS AND THE RELEVANT INFERENCES TO BE
DRAWN FROM THEM, THIS CASE CLEARLY CALLS FOR ITS APPLICATION.  SEE
ALLEN V. TRUST COMPANY OF GEORGIA, 326 U.S. 630.  FOR THE CRUCIAL ISSUE
IN THIS CASE TURNS ON WHETHER THE CONTRACTS FOR THE LAND AND THE
CONTRACTS FOR THE MANAGEMENT OF THE PROPERTY WERE IN REALITY SEPARATE
AGREEMENTS OR MERELY PARTS OF A SINGLE TRANSACTION.  IT IS CLEAR FROM
ITS OPINION THAT THE DISTRICT COURT WAS WARRANTED IN ITS CONCLUSION
THAT THE RECORD DOES NOT ESTABLISH THE EXISTENCE OF AN INVESTMENT
CONTRACT: 

"...  THE RECORD IN THIS CASE SHOWS THAT NOT A SINGLE SALE OF CITRUS
GROVE PROPERTY WAS MADE BY THE HOWEY COMPANY DURING THE PERIOD INVOLVED
IN THIS SUIT, EXCEPT TO PURCHASERS WHO ACTUALLY INSPECTED THE PROPERTY
BEFORE PURCHASING THE SAME.  THE RECORD FURTHER DISCLOSES THAT NO
PURCHASER IS REQUIRED TO ENGAGE THE SERVICE COMPANY TO CARE FOR HIS
PROPERTY AND THAT OF THE FIFTY-ONE PURCHASERS ACQUIRING PROPERTY DURING
THIS PERIOD, ONLY FORTY-TWO ENTERED INTO CONTRACTS WITH THE SERVICE
COMPANY FOR THE CARE OF THE PROPERTY."  60 F.SUPP.  AT 442. 

SIMPLY BECAUSE OTHER ARRANGEMENTS MAY HAVE THE APPEARANCES OF THIS
TRANSACTION BUT ARE EMPLOYED AS AN EVASION OF THE SECURITIES ACT DOES
NOT MEAN THAT THE PRESENT CONTRACTS WERE EVASIVE.  I FIND NOTHING IN
THE SECURITIES ACT TO INDICATE THAT CONGRESS MEANT TO BRING EVERY
INNOCENT TRANSACTION WITHIN THE SCOPE OF THE ACT SIMPLY BECAUSE A
PERVERSION OF THEM IS COVERED BY THE ACT. 
..END :





WOODS V. NIERSTHEIMER, 328 U.S. 211 


ARGUED MAY 2, 1946.  - DECIDED MAY 20, 1946.  - DISMISSED. 


MORE THAN FIVE YEARS AFTER HIS CONVICTION FOR MURDER ON AN ALLEGED
PLEA OF GUILTY, PETITIONER PETITIONED TWO ILLINOIS COURTS FOR WRITS OF
HABEAS CORPUS, ALLEGING CIRCUMSTANCES WHICH, IF TRUE, WERE SUFFICIENT
TO SHOW THAT HE HAD BEEN CONVICTED WITHOUT DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  EACH COURT DENIED THE PETITION
WITHOUT AN OPINION, ON THE GROUND THAT IT FAILED TO STATE A CAUSE OF
ACTION.  THESE ORDERS WERE NOT APPEALABLE TO A HIGHER STATE COURT.  IT
APPEARED THAT THE PROPER REMEDY UNDER ILLINOIS LAW WAS NOT A WRIT OF
HABEAS CORPUS BUT A STATUTORY SUBSTITUTE FOR A WRIT OF ERROR CORAM
NOBIS, IN RESPECT OF WHICH THERE WAS A FIVE-YEAR LIMITATION.  HELD: 

1.  SINCE THE ORDERS DENYING WRITS OF HABEAS CORPUS WERE NOT
APPEALABLE TO A HIGHER STATE COURT, THIS COURT IS AUTHORIZED TO REVIEW
THEM IF THEY ARE BASED ON DECISIONS OF FEDERAL QUESTIONS.  P. 213. 

2.  SINCE IT APPEARS THAT THE PETITIONS FOR WRITS OF HABEAS CORPUS
PROBABLY WERE DENIED BECAUSE THAT WAS NOT THE PROPER REMEDY UNDER
ILLINOIS LAW, THE JUDGMENTS DO NOT CLEARLY PRESENT FEDERAL QUESTIONS. 
P. 216. 

3.  THE SITUATION IS NOT ALTERED BY THE FACT THAT THE FIVE-YEAR
STATUTE OF LIMITATIONS ON THE PROPER REMEDY HAS EXPIRED, SINCE IT IS
NOT KNOWN WHETHER THE STATE COURTS WILL CONSTRUE THE STATUTE AS
DEPRIVING PETITIONER OF HIS RIGHT TO CHALLENGE A JUDGMENT RENDERED IN
VIOLATION OF CONSTITUTIONAL GUARANTIES.  P. 216. 

4.  WHETHER PETITIONER WILL BE DENIED ANY REMEDY IN THE STATE COURTS
WILL NOT BE KNOWN UNTIL THEY HAVE PASSED ON A PETITION FOR THE PROPER
REMEDY UNDER STATE LAW.  P. 216. 

5.  IF THE STATE SHOULD AT ALL TIMES DENY ALL REMEDIES TO PERSONS
IMPRISONED IN VIOLATION OF THE CONSTITUTION, THE FEDERAL COURTS WOULD
BE AVAILABLE TO PROVIDE A REMEDY TO CORRECT SUCH WRONGS.  P. 217. 

WOODS V. NIERSTHEIMER, WARDEN. 

NO. 631.  CERTIORARI TO THE CIRCUIT COURT OF RANDOLPH COUNTY,
ILLINOIS* . 

*TOGETHER WITH NO. 671, WOODS V. NIERSTHEIMER, WARDEN, ON CERTIORARI
TO THE CRIMINAL COURT OF COOK COUNTY, ILLINOIS, ARGUED AND DECIDED ON
THE SAME DATES. 

PETITIONER WAS DENIED WRITS OF HABEAS CORPUS BY STATE COURTS FROM
WHICH THERE WAS NO APPEAL.  THIS COURT GRANTED CERTIORARI.  327 U.S.
772.  DISMISSED, P. 217. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1940 THE PETITIONER WAS INDICTED FOR MURDER IN THE CRIMINAL COURT
OF COOK COUNTY, ILLINOIS.  ADJUDGED TO BE GUILTY ON AN ALLEGED PLEA OF
GUILTY, HE WAS SENTENCED TO SERVE NINETY-NINE YEARS IN THE STATE
PENITENTIARY.  IN 1945 HE FILED TWO IDENTICAL PETITIONS FOR HABEAS
CORPUS, ONE IN THE CRIMINAL COURT OF COOK COUNTY AND THE OTHER IN THE
RANDOLPH COUNTY CIRCUIT COURT.  IN SUMMARY THE ALLEGATIONS OF THESE
PETITIONS WERE: 

ON MARCH 8TH OR 9TH, 1940, CHICAGO POLICEMEN CAME TO PETITIONER'S
HOME, ACCUSED HIM OF MURDER, AND ARRESTED HIM.  FOR A PERIOD OF FOUR
DAYS THESE POLICEMEN SUBJECTED HIM TO MISTREATMENT IN AN EFFORT TO
FORCE HIM TO CONFESS TO THE CRIME OF MURDER.  THE POLICEMEN ALLEGEDLY
ABUSED HIM, BEAT HIM WITH THEIR HANDS, WITH BLACKJACKS, AND WITH
CLUBS.  AT THE END OF FOUR DAYS, UNDER THREAT OF INSTANT DEATH IF HE
FAILED TO DO SO, PETITIONER SIGNED A PAPER WHICH HE LATER DISCOVERED TO
BE A CONFESSION.  PETITIONER AVERRED THAT HE WAS UNABLE TO EMPLOY
COUNSEL, THAT HE HAD NO COUNSEL, AND THAT HE DID NOT CONSULT WITH
COUNSEL DURING THE NEXT TWO MONTHS WHILE HE WAS CONFINED TO JAIL. 
ACCORDING TO THE ALLEGATIONS, PETITIONER WAS BROUGHT INTO COURT AT THE
END OF THAT PERIOD, AND A PUBLIC DEFENDER APPEARED AS HIS COUNSEL; BUT
THE PUBLIC DEFENDER DECLINED TO PERMIT PETITIONER TO EXPLAIN THE
CIRCUMSTANCES SURROUNDING THE CONFESSION.  MOREOVER, DESPITE
PETITIONER'S REPEATED ASSERTION OF HIS INNOCENCE, THE DEFENDER
ALLEGEDLY ENTERED A PLEA OF GUILTY ON BEHALF OF PETITIONER.  THE
ALLEGATIONS FURTHER ASSERT THAT THE PUBLIC DEFENDER AND THE STATE'S
ATTORNEY THREATENED PETITIONER BY TELLING HIM THAT HE WOULD BURN IN THE
ELECTRIC CHAIR IF HE DID NOT KEEP HIS MOUTH SHUT, AND THAT DESPITE
THESE THREATS PETITIONER PLEADED NOT GUILTY AND NEVER DID AT ANY TIME
CONSENT TO THE GUILTY PLEA WHICH IS THE BASIS FOR HIS NINETY-NINE YEAR
SENTENCE. 

PETITIONER'S CONTENTION BEFORE THE TWO TRIAL COURTS WAS THAT A
JUDGMENT AND SENTENCE UNDER THESE CIRCUMSTANCES AMOUNTED TO A DENIAL OF
DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.  THE RANDOLPH COUNTY CIRCUIT COURT DENIED
PETITIONER'S APPLICATION FOR HABEAS CORPUS "FOR WANT OF JURISDICTION
AND FAILURE TO STATE A CAUSE OF ACTION."  THE COOK COUNTY CRIMINAL
COURT GRANTED THE STATE'S MOTION TO DISMISS, MADE ON THE GROUND THAT
THE PETITION ON ITS FACE FAILED TO STATE A CAUSE OF ACTION.  IN NEITHER
COURT WAS PETITIONER AFFORDED AN OPPORTUNITY TO OFFER EVIDENCE TO PROVE
HIS ALLEGATIONS.  NEITHER COURT WROTE AN OPINION EXPLAINING ITS ORDER. 
SINCE ILLINOIS DOES NOT PROVIDE FOR APPELLATE REVIEW OF AN ORDER
DENYING A PETITION FOR A WRIT OF HABEAS CORPUS, THE ORDERS HERE
INVOLVED WERE ENTERED BY THE HIGHEST COURTS OF THE STATE THAT COULD
HAVE ENTERED THEM.  SEE WHITE V. RAGEN, 324 U.S. 760.  THIS COURT IS
CONSEQUENTLY AUTHORIZED TO REVIEW THESE ORDERS IF THEY ARE BASED ON
DECISIONS OF FEDERAL QUESTIONS.  TUCKER V. TEXAS, 326 U.S. 517. 
BECAUSE OF THE SERIOUS VIOLATIONS OF THE FOURTEENTH AMENDMENT ALLEGED
BY THE PETITIONER, AND BECAUSE OF UNCERTAINTY AS TO WHETHER DENIAL OF
HIS PETITIONS RESTED ON AN ADEQUATE STATE GROUND, WE GRANTED
CERTIORARI. 

THE STATE, THROUGH ITS ATTORNEY GENERAL, CONCEDES THAT THE
ALLEGATIONS OF THE PETITIONS FOR HABEAS CORPUS, IF TRUE, WOULD SHOW
THAT CONVICTION AND SENTENCING OF THE PETITIONER VIOLATED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE STATE CONTENDS,
HOWEVER, THAT THE APPLICATIONS FOR HABEAS CORPUS WERE NOT DENIED ON THE
GROUND THAT THE ALLEGATIONS, IF PROVED, WOULD FAIL TO SHOW A VIOLATION
OF DUE PROCESS.  ACCORDING TO THE STATE, THE DENIALS OF PETITIONER'S
APPLICATIONS RESTED ON THE SEPARATE AND DISTINCT GROUND THAT IN THE
ILLINOIS STATE COURTS HABEAS CORPUS IS NOT THE PROPER REMEDY FOR RELIEF
FROM JUDGMENTS VIOLATING DUE PROCESS OF LAW IN THE MANNER HERE
ALLEGED.  THE CONTENTION IS THAT THE EXCLUSIVE RELIEF AGAINST SUCH
JUDGMENTS IS PROVIDED BY A STATUTORY SUBSTITUTE FOR THE COMMON LAW WRIT
OF ERROR CORAM NOBIS, CH. 110, PAR. 196, ILLINOIS REVISED STATUTES,
1945.  THE PETITIONER COUNTERS BY CALLING ATTENTION TO THE FACT THAT
THE STATUTORY REMEDY IS NOT AVAILABLE UNLESS BROUGHT WITHIN FIVE YEARS
AFTER THE RENDITION OF A JUDGMENT; THAT THE JUDGMENT AND SENTENCE
AGAINST PETITIONER WAS RENDERED MORE THAN FIVE YEARS AGO; THAT
CONSEQUENTLY, IF PETITIONER HAS NO REMEDY FOR HABEAS CORPUS, HE HAS NO
REMEDY AT ALL; THAT WE SHOULD NOT ASSUME THAT ILLINOIS GRANTS NO RELIEF
TO ONE WHOSE IMPRISONMENT VIOLATES RIGHTS PROTECTED BY THE UNITED
STATES CONSTITUTION, CF. SMITH V. O'GRADY, 312 U.S. 329; AND THAT WE
SHOULD THEREFORE HOLD THAT HABEAS CORPUS IS AVAILABLE TO THE
PETITIONER. 

FROM OUR INVESTIGATION OF THE LAW OF THE STATE OF ILLINOIS WE
CONCLUDE THAT THE DENIALS OF THE APPLICATIONS IN THIS CASE COULD HAVE
RESTED, AND PROBABLY DID REST, ON THE GROUND THAT HABEAS CORPUS IS NOT
THE PROPER REMEDY IN CASES SUCH AS THE ONE BEFORE US.  FOR THIS REASON
WE ARE WITHOUT POWER TO REVIEW THE JUDGMENTS, SEE WILLIAMS V. KAISER,
323 U.S. 471, 477, AND THE WRITS OF CERTIORARI MUST BE DISMISSED.  THE
SUPREME COURT OF ILLINOIS HAS REPEATEDLY HELD THAT A COURT OF THE STATE
HAS JURISDICTION OF A HABEAS CORPUS PROCEEDING ONLY WHERE THE ORIGINAL
JUDGMENT OF CONVICTION WAS VOID OR WHERE SOMETHING HAS HAPPENED SINCE
ITS RENDITION TO ENTITLE THE PETITIONER TO HIS RELEASE.  ACCORDING TO
ILLINOIS SUPREME COURT DECISIONS, THIS MEANS THAT IF THE PETITION AND
RETURN IN THE HABEAS CORPUS PROCEEDING SHOW THAT THE COURT WHICH
RENDERED THE ORIGINAL JUDGMENT HAD JURISDICTION OVER THE PERSON AND
OVER THE SUBJECT MATTER, AND NOTHING HAS HAPPENED SINCE THE CONVICTION
TO ENTITLE THE APPLICANT TO HIS RELEASE, THE COURT TO WHICH THE
PETITION IS ADDRESSED LACKS POWER TO DISCHARGE THE PRISONER.  FN1  THE
PETITIONS FOR HABEAS CORPUS HERE INVOLVED DID NOT CHALLENGE THE COURT'S
JURISDICTION OVER THE PERSON, NOR DID THEY ALLEGE THAT ANYTHING HAD
HAPPENED SINCE THE RENDITION OF THE JUDGMENT WHICH WOULD ENTITLE THE
PETITIONER TO HIS RELEASE.  THE ALLEGATIONS THAT PETITIONER DID NOT
CONSENT TO THE GUILTY PLEA AND THAT HE WAS NOT REPRESENTED BY PROPER
COUNSEL, MOREOVER, DID NOT CHALLENGE JURISDICTION OVER THE SUBJECT
MATTER, WITHIN THE MEANING OF THAT TERM AS USED IN DEFINING THE POWER
OF ILLINOIS COURTS TO RELEASE PRISONERS ON HABEAS CORPUS.  FN2
CONSEQUENTLY, IT SEEMS HIGHLY PROBABLE THAT UNDER THE ILLINOIS
DECISIONS THE WRIT OF HABEAS CORPUS WAS NOT THE PROPER REMEDY IN THIS
CASE.  THAT THIS IS SO IS FURTHER BORNE OUT BY THE FACT THAT IN
ILLINOIS ORDERS DENYING PETITIONS FOR HABEAS CORPUS ARE NOT SUBJECT TO
APPELLATE REVIEW.  PEOPLE V. MCANALLY, 221 ILL. 66, 68, 77 N.E. 544. 
WE CANNOT ASSUME THAT ILLINOIS WOULD SO FAR DEPART FROM ITS GENERAL
APPELLATE PROCEDURE AS TO DENY APPELLATE REVIEW OF ORDERS DENYING
APPLICATIONS FOR HABEAS CORPUS, IF SUCH APPLICATIONS WERE THE PROPER
PROCEDURE FOR CHALLENGING VIOLATIONS OF FUNDAMENTAL RIGHTS TO LIFE AND
LIBERTY GUARANTEED BY THE UNITED STATES CONSTITUTION. 

SINCE THE RECORD THUS SHOWS THAT PETITIONER'S APPLICATIONS FOR A WRIT
OF HABEAS CORPUS WERE PROBABLY DENIED BECAUSE HE DID NOT SEEK THE
PROPER REMEDY UNDER ILLINOIS LAW, IT DOES NOT APPEAR THAT THE JUDGMENTS
WE ARE ASKED TO REVIEW DO NOT REST ON AN ADEQUATE NON-FEDERAL GROUND. 
NOR DO THE DENIALS OF PETITIONER'S APPLICATIONS FOR HABEAS CORPUS
PRESENT A FEDERAL QUESTION MERELY BECAUSE THE FIVE-YEAR STATUTE OF
LIMITATIONS ON THE STATUTORY SUBSTITUTE FOR THE WRIT OF ERROR CORAM
NOBIS HAS EXPIRED.  PETITIONER CLAIMS THAT THIS LEAVES HIM WITHOUT ANY
REMEDY IN THE STATE COURTS.  BUT WE DO NOT KNOW WHETHER THE STATE
COURTS WILL CONSTRUE THE STATUTE SO AS TO DEPRIVE PETITIONER OF HIS
RIGHT TO CHALLENGE A JUDGMENT RENDERED IN VIOLATION OF CONSTITUTIONAL
GUARANTEES WHERE HIS ACTION IS BROUGHT MORE THAN FIVE YEARS AFTER
RENDITION OF THE JUDGMENT.  NOR CAN WE AT THIS TIME PASS UPON THE
SUGGESTION THAT THE ILLINOIS STATUTE SO CONSTRUED WOULD ITSELF VIOLATE
DUE PROCESS OF LAW IN THAT A DENIAL OF THAT REMEDY, TOGETHER WITH A
DENIAL OF THE WRIT OF HABEAS CORPUS, WOULD, TAKEN TOGETHER, AMOUNT TO A
COMPLETE DEPRIVATION OF A STATE REMEDY WHERE CONSTITUTIONAL RIGHTS HAVE
BEEN DENIED.  WE WOULD REACH THAT QUESTION ONLY AFTER A DENIAL OF THE
STATUTORY SUBSTITUTE FOR THE WRIT OF ERROR CORAM NOBIS BASED ON THE
STATUTE OF LIMITATIONS HAD BEEN AFFIRMED BY THE SUPREME COURT OF THE
STATE.  FN3  FURTHERMORE, IT CANNOT BE DOUBTED THAT IF THE STATE OF
ILLINOIS SHOULD AT ALL TIMES DENY ALL REMEDIES TO INDIVIDUALS
IMPRISONED WITHIN THE STATE IN VIOLATION OF THE CONSTITUTION OF THE
UNITED STATES, THE FEDERAL COURTS WOULD BE AVAILABLE TO PROVIDE A
REMEDY TO CORRECT SUCH WRONGS.  EX PARTE HAWK, 321 U.S. 114. 
DISMISSED. 

FN1  SEE E.G. PEOPLE V. ZIMMER, 252 ILL. 9, 96 N.E. 529, AND CASES
DISCUSSED; PEOPLE V. SIMAN, 284 ILL. 28, 32, 119 N.E. 940; PEOPLE V.
SHURTLEFF, 355 ILL. 210, 189 N.E. 291; PEOPLE V. THOMPSON, 358 ILL. 81,
192 N.E. 693; PEOPLE V. BRADLEY, 391 ILL. 169, 62 N.E.2D 788. 

FN2  SEE PEOPLE V. FISHER, 340 ILL. 250, 172 N.E. 722, WHERE THE
SUPREME COURT OF ILLINOIS MADE THE FOLLOWING STATEMENT ON P. 260: 

"IF THE JURY IS AN ESSENTIAL PART OF THE TRIBUNAL WITHOUT WHICH THE
COURT HAS NO JURISDICTION OF THE SUBJECT MATTER, IT IS NOT DISCERNIBLE
HOW, UPON A PLEA OF GUILTY IN A CRIMINAL CASE, A VALID JUDGMENT CAN BE
RENDERED.  YET THE POWER OF THE COURT, WITHOUT A JURY, UPON SUCH A
PLEA, TO FIND THE DEFENDANT GUILTY AND RENDER JUDGMENT IS
UNQUESTIONED.  A COURT'S JURISDICTION OF THE SUBJECT MATTER IS NOT
DETERMINED BY THE PLEA WHICH A PERSON CHARGED WITH CRIME MAY
INTERPOSE.  BEFORE HE APPEARED AT THE BAR OF THE TRIBUNAL, IT EITHER
WAS OR WAS NOT VESTED WITH JURISDICTION OF THE SUBJECT MATTER OF HIS
CAUSE.  IF THE COURT POSSESSED SUCH JURISDICTION, IT WAS CONFERRED BY
OR PURSUANT TO SOME PROVISION OF THE CONSTITUTION, AND NOT BY THE ACT
OR CONSENT OF THE DEFENDANT." 

FN3  A JUDGMENT IN A CORAM NOBIS PROCEEDING IS FINAL AND APPEALABLE
IN ILLINOIS.  SEE PEOPLE V. GREEN, 355 ILL. 468, 189 N.E. 500. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :










THIEL V. SOUTHERN PACIFIC CO., 328 U.S. 217 


NO. 349.  ARGUED MARCH 25, 1946.  - DECIDED MAY 20, 1946.  - 149 F.2D
783, REVERSED. 


1.  A FEDERAL COURT JURY PANEL FROM WHICH PERSONS WHO WORK FOR A DAILY
WAGE WERE INTENTIONALLY AND SYSTEMATICALLY EXCLUDED HELD UNLAWFULLY
CONSTITUTED.  PP. 221, 225. 

2.  SUCH DISCRIMINATION AGAINST DAILY WAGE EARNERS AS A CLASS WAS NOT
JUSTIFIED BY EITHER FEDERAL OR CALIFORNIA LAW.  P. 222. 

3.  THE CHOICE OF THE MEANS BY WHICH UNLAWFUL DISTINCTIONS AND
DISCRIMINATIONS IN THE SELECTION OF JURY PANELS ARE TO BE AVOIDED RESTS
LARGELY IN THE SOUND DISCRETION OF THE TRIAL COURTS AND THEIR
OFFICERS.  P. 220. 

4.  THE PAY PERIOD OF AN INDIVIDUAL IS IRRELEVANT TO HIS ELIGIBILITY
AND CAPACITY TO SERVE AS A JUROR.  P. 223. 

5.  ALTHOUGH A FEDERAL JUDGE MAY BE JUSTIFIED IN EXCUSING A DAILY
WAGE EARNER FOR WHOM JURY SERVICE WOULD ENTAIL AN UNDUE FINANCIAL
HARDSHIP, THAT FACT CAN NOT SUPPORT THE COMPLETE EXCLUSION OF ALL DAILY
WAGE EARNERS REGARDLESS OF WHETHER THERE IS ACTUAL HARDSHIP INVOLVED. 
P. 224. 

6.  JURY SERVICE IS A DUTY AS WELL AS A PRIVILEGE OF CITIZENSHIP.  A
CLAIM OF FINANCIAL EMBARRASSMENT WILL EXCUSE ONLY WHEN A REAL BURDEN OR
HARDSHIP WOULD BE IMPOSED.  P. 224. 

7.  A JUDGMENT OF THE DISTRICT COURT IN A CASE IN WHICH THAT COURT
DENIED A MOTION TO STRIKE A JURY PANEL FROM WHICH PERSONS WHO WORK FOR
A DAILY WAGE WERE INTENTIONALLY AND SYSTEMATICALLY EXCLUDED IS HERE
REVERSED BY THIS COURT IN THE EXERCISE OF ITS POWER OF SUPERVISION OVER
THE ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS.  P. 225. 

8.  IT IS UNNECESSARY IN THIS CASE TO DETERMINE WHETHER THE
UNSUCCESSFUL LITIGANT WAS IN ANY WAY PREJUDICED BY THE WRONGFUL
EXCLUSION OR WHETHER HE WAS ONE OF THE EXCLUDED CLASS.  P. 225. 

9.  NOR IS IT MATERIAL THAT THE JURY WHICH ACTUALLY DECIDED THE
FACTUAL ISSUE IN THIS CASE WAS FOUND TO INCLUDE AT LEAST FIVE PERSONS
WHO WERE OF THE LABORING CLASS THOUGH NOT PER DIEM WORKERS.  P. 225. 

THIEL V. SOUTHERN PACIFIC CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PETITIONER BROUGHT SUIT IN A STATE COURT AGAINST THE RAILROAD COMPANY
TO RECOVER DAMAGES FOR ALLEGED NEGLIGENCE IN ITS TREATMENT OF HIM WHILE
A PASSENGER ON ONE OF ITS TRAINS.  ON APPLICATION OF THE RAILROAD
COMPANY, THE SUIT WAS REMOVED TO THE FEDERAL DISTRICT COURT ON THE
GROUND OF DIVERSITY OF CITIZENSHIP.  THE JUDGMENT OF THE DISTRICT
COURT, UPON A TRIAL BY JURY, WAS IN FAVOR OF THE RAILROAD COMPANY.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  149 F.2D 783.  THIS COURT GRANTED
CERTIORARI LIMITED TO THE QUESTION WHETHER PETITIONER'S MOTION TO
STRIKE THE JURY PANEL WAS PROPERLY DENIED BY THE DISTRICT COURT.  326
U.S. 716.  REVERSED, P. 225. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A PASSENGER, JUMPED OUT OF THE WINDOW OF A MOVING TRAIN
OPERATED BY THE RESPONDENT, THE SOUTHERN PACIFIC COMPANY.  HE FILED A
COMPLAINT IN A CALIFORNIA STATE COURT TO RECOVER DAMAGES, ALLEGING THAT
THE RESPONDENT'S AGENTS KNEW THAT HE WAS "OUT OF HIS NORMAL MIND" AND
SHOULD NOT BE ACCEPTED AS A PASSENGER OR ELSE SHOULD BE GUARDED AND
THAT, HAVING ACCEPTED HIM AS A PASSENGER, THEY LEFT HIM UNGUARDED AND
FAILED TO STOP THE TRAIN BEFORE HE FINALLY FELL TO THE GROUND.  AT
RESPONDENT'S REQUEST THE CASE WAS REMOVED TO THE FEDERAL DISTRICT COURT
AT SAN FRANCISCO ON THE GROUND OF DIVERSITY OF CITIZENSHIP, RESPONDENT
BEING A KENTUCKY CORPORATION.  SEVERAL VAIN ATTEMPTS WERE THEN MADE BY
THE PETITIONER TO OBTAIN A REMAND OF THE CASE TO THE STATE COURT;
PETITIONER WAS ALSO RESTRAINED FROM ATTEMPTING TO PROCEED FURTHER IN
THE STATE COURT.  FN1 

AFTER DEMANDING A JURY TRIAL, PETITIONER MOVED TO STRIKE OUT THE
ENTIRE JURY PANEL, ALLEGING INTER ALIA THAT "MOSTLY BUSINESS EXECUTIVES
OR THOSE HAVING THE EMPLOYER'S VIEWPOINT ARE PURPOSELY SELECTED ON SAID
PANEL, THUS GIVING A MAJORITY REPRESENTATION TO ONE CLASS OR OCCUPATION
AND DISCRIMINATING AGAINST OTHER OCCUPATIONS AND CLASSES, PARTICULARLY
THE EMPLOYEES AND THOSE IN THE POORER CLASSES WHO CONSTITUTE, BY FAR,
THE GREAT MAJORITY OF CITIZENS ELIGIBLE FOR JURY SERVICE ..." 
FOLLOWING A HEARING AT WHICH TESTIMONY WAS TAKEN, THE MOTION WAS
DENIED.  PETITIONER THEN ATTEMPTED TO WITHDRAW HIS DEMAND FOR A JURY
TRIAL BUT THE RESPONDENT REFUSED TO CONSENT.  A JURY OF TWELVE WAS
CHOSEN.  PETITIONER THEREUPON CHALLENGED THESE JURORS UPON THE SAME
GROUNDS PREVIOUSLY URGED IN RELATION TO THE ENTIRE JURY PANEL AND UPON
THE FURTHER GROUND THAT SIX OF THE TWELVE JURORS WERE CLOSELY
AFFILIATED AND CONNECTED WITH THE RESPONDENT.  THE COURT DENIED THIS
CHALLENGE.  THE TRIAL PROCEEDED AND THE JURY RETURNED A VERDICT FOR THE
RESPONDENT. 

PETITIONER RENEWED HIS OBJECTIONS IN HIS MOTION TO SET ASIDE THE
VERDICT OR, IN THE ALTERNATIVE, TO GRANT A NEW TRIAL.  IN DENYING THIS
MOTION THE COURT ORALLY FOUND THAT FIVE OF THE TWELVE JURORS "BELONG
MORE CLOSELY AND INTIMATELY WITH THE WORKING MAN AND EMPLOYEE CLASS
THAN THEY DO WITH ANY OTHER CLASS" AND THAT THEY MIGHT BE EXPECTED TO
BE "SYMPATHETIC WITH THE EXPERIENCES IN LIFE, THE AFFAIRS OF LIFE, AND
WITH THE ECONOMIC VIEWS, OF PEOPLE WHO BELONG TO THE WORKING OR
EMPLOYEE CLASS."  THE NINTH CIRCUIT COURT OF APPEALS AFFIRMED THE
JUDGMENT IN ITS ENTIRETY, 149 F.2D 783, AND WE BROUGHT THE CASE HERE ON
CERTIORARI "LIMITED TO THE QUESTION WHETHER PETITIONER'S MOTION TO
STRIKE THE JURY PANEL WAS PROPERLY DENIED." 

THE AMERICAN TRADITION OF TRIAL BY JURY, CONSIDERED IN CONNECTION
WITH EITHER CRIMINAL OR CIVIL PROCEEDINGS, NECESSARILY CONTEMPLATES AN
IMPARTIAL JURY DRAWN FROM A CROSS-SECTION OF THE COMMUNITY.  SMITH V.
TEXAS, 311 U.S. 128, 130; GLASSER V. UNITED STATES, 315 U.S. 60, 85. 
THIS DOES NOT MEAN, OF COURSE, THAT EVERY JURY MUST CONTAIN
REPRESENTATIVES OF ALL THE ECONOMIC, SOCIAL, RELIGIOUS, RACIAL,
POLITICAL AND GEOGRAPHICAL GROUPS OF THE COMMUNITY; FREQUENTLY SUCH
COMPLETE REPRESENTATION WOULD BE IMPOSSIBLE.  BUT IT DOES MEAN THAT
PROSPECTIVE JURORS SHALL BE SELECTED BY COURT OFFICIALS WITHOUT
SYSTEMATIC AND INTENTIONAL EXCLUSION OF ANY OF THESE GROUPS. 
RECOGNITION MUST BE GIVEN TO THE FACT THAT THOSE ELIGIBLE FOR JURY
SERVICE ARE TO BE FOUND IN EVERY STRATUM OF SOCIETY.  JURY COMPETENCE
IS AN INDIVIDUAL RATHER THAN A GROUP OR CLASS MATTER.  THAT FACT LIES
AT THE VERY HEART OF THE JURY SYSTEM.  TO DISREGARD IT IS TO OPEN THE
DOOR TO CLASS DISTINCTIONS AND DISCRIMINATIONS WHICH ARE ABHORRENT TO
THE DEMOCRATIC IDEALS OF TRIAL BY JURY. 

THE CHOICE OF THE MEANS BY WHICH UNLAWFUL DISTINCTIONS AND
DISCRIMINATIONS ARE TO BE AVOIDED RESTS LARGELY IN THE SOUND DISCRETION
OF THE TRIAL COURTS AND THEIR OFFICERS.  THIS DISCRETION, OF COURSE,
MUST BE GUIDED BY PERTINENT STATUTORY PROVISIONS.  SO FAR AS FEDERAL
JURORS ARE CONCERNED, THEY MUST BE CHOSEN "WITHOUT REFERENCE TO PARTY
AFFILIATIONS," 28 U.S.C. SEC. 412; AND CITIZENS CANNOT BE DISQUALIFIED
"ON ACCOUNT OF RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE," 28
U.S.C. SEC. 415.  IN ADDITION, JURORS MUST BE RETURNED FROM SUCH PARTS
OF THE DISTRICT AS THE COURT MAY DIRECT "SO AS TO BE MOST FAVORABLE TO
AN IMPARTIAL TRIAL, AND SO AS NOT TO INCUR AN UNNECESSARY EXPENSE, OR
UNDULY BURDEN THE CITIZENS OF ANY PART OF THE DISTRICT WITH SUCH
SERVICE," 28 U.S.C. SEC. 413.  FOR THE MOST PART, OF COURSE, THE
QUALIFICATIONS AND EXEMPTIONS IN REGARD TO FEDERAL JURORS ARE TO BE
DETERMINED BY THE LAWS OF THE STATE WHERE THE FEDERAL COURT IS LOCATED,
28 U.S.C. SEC. 411.  FN2  POINTER V. UNITED STATES, 151 U.S. 396.  A
STATE LAW CREATING AN UNLAWFUL QUALIFICATION, HOWEVER, IS NOT BINDING
AND SHOULD NOT BE UTILIZED IN SELECTING FEDERAL JURORS.  SEE KIE V.
UNITED STATES, 27 F. 351, 357. 

THE UNDISPUTED EVIDENCE IN THIS CASE DEMONSTRATES A FAILURE TO ABIDE
BY THE PROPER RULES AND PRINCIPLES OF JURY SELECTION.  BOTH THE CLERK
OF THE COURT AND THE JURY COMMISSIONER TESTIFIED THAT THEY DELIBERATELY
AND INTENTIONALLY EXCLUDED FROM THE JURY LISTS ALL PERSONS WHO WORK FOR
A DAILY WAGE.  THEY GENERALLY USED THE CITY DIRECTORY AS THE SOURCE OF
NAMES OF PROSPECTIVE JURORS.  IN THE WORDS OF THE CLERK, "IF I SEE IN
THE DIRECTORY THE NAME OF JOHN JONES AND IT SAYS HE IS A LONGSHOREMAN,
I DO NOT PUT HIS NAME IN, BECAUSE I HAVE FOUND BY EXPERIENCE THAT THAT
MAN WILL NOT SERVE AS A JUROR, AND I WILL NOT GET PEOPLE WHO WILL
QUALIFY.  THE MINUTE THAT A JUROR IS CALLED INTO COURT ON A VENIRE AND
SAYS HE IS WORKING FOR $10 A DAY AND CANNOT AFFORD TO WORK FOR FOUR,
THE JUDGE HAS NEVER MADE ONE OF THOSE MEN SERVE, AND SO IN ORDER TO
AVOID PUTTING NAMES OF PEOPLE IN WHO I KNOW WON'T BECOME JURORS IN THE
COURT, WON'T QUALIFY AS JURORS IN THIS COURT, I DO LEAVE THEM OUT....
WHERE I THOUGHT THE DESIGNATION INDICATED THAT THEY WERE DAY LABORERS,
I MEAN THEY WERE PEOPLE WHO WERE COMPENSATED SOLELY WHEN THEY WERE
WORKING BY THE DAY, I LEAVE THEM OUT."  THE JURY COMMISSIONER
CORROBORATED THIS TESTIMONY, ADDING THAT HE PURPOSELY EXCLUDED "ALL THE
IRON CRAFT, BRICKLAYERS, CARPENTERS, AND MACHINISTS" BECAUSE IN THE
PAST "THOSE MEN CAME INTO COURT AND OFFERED THAT (FINANCIAL HARDSHIP)
AS AN EXCUSE, AND THE JUDGE USUALLY LET THEM GO."  THE EVIDENCE
INDICATED, HOWEVER, THAT LABORERS WHO WERE PAID WEEKLY OR MONTHLY WAGES
WERE PLACED ON THE JURY LISTS, AS WELL AS THE WIVES OF DAILY WAGE
EARNERS. 

IT WAS FURTHER ADMITTED THAT BUSINESS MEN AND THEIR WIVES CONSTITUTED
AT LEAST 50% OF THE JURY LISTS, ALTHOUGH BOTH THE CLERK AND THE
COMMISSIONER DENIED THAT THEY CONSCIOUSLY CHOSE ACCORDING TO WEALTH OR
OCCUPATION.  THUS THE ADMITTED DISCRIMINATION WAS LIMITED TO THOSE WHO
WORKED FOR A DAILY WAGE, MANY OF WHOM MIGHT SUFFER FINANCIAL LOSS BY
SERVING ON JURIES AT THE RATE OF $4 A DAY AND WOULD BE EXCUSED FOR THAT
REASON. 

THIS EXCLUSION OF ALL THOSE WHO EARN A DAILY WAGE CANNOT BE JUSTIFIED
BY FEDERAL OR STATE LAW.  CERTAINLY NOTHING IN THE FEDERAL STATUTES
WARRANTS SUCH AN EXCLUSION.  AND THE CALIFORNIA STATUTES ARE EQUALLY
DEVOID OF JUSTIFICATION FOR THE PRACTICE.  UNDER CALIFORNIA LAW A DAILY
WAGE EARNER MAY BE FULLY COMPETENT AS A JUROR.  A JUROR, TO BE
COMPETENT, NEED ONLY BE A CITIZEN OF THE UNITED STATES OVER THE AGE OF
21, A RESIDENT OF THE STATE AND COUNTY FOR ONE YEAR PRECEDING
SELECTION, POSSESSED OF HIS NATURAL FACULTIES AND OF ORDINARY
INTELLIGENCE AND NOT DECREPIT, AND POSSESSED OF SUFFICIENT KNOWLEDGE OF
THE ENGLISH LANGUAGE.  CALIFORNIA CODE OF CIVIL PROCEDURE, SEC. 198. 
CF. SEC. 199.  NOR IS A DAILY WAGE EARNER LISTED AMONG THOSE EXEMPT
FROM JURY SERVICE.  SEC. 200.  AND UNDER THE STATE LAW, "A JUROR SHALL
NOT BE EXCUSED BY A COURT FOR SLIGHT OR TRIVIAL CAUSES, OR FOR
HARDSHIP, OR FOR INCONVENIENCE TO SAID JUROR'S BUSINESS, BUT ONLY WHEN
MATERIAL INJURY OR DESTRUCTION TO SAID JUROR'S PROPERTY OR OF PROPERTY
ENTRUSTED TO SAID JUROR IS THREATENED  ..."  SEC. 201. 

MOREOVER, THE GENERAL PRINCIPLES UNDERLYING PROPER JURY SELECTION
CLEARLY OUTLAW THE EXCLUSION PRACTICED IN THIS INSTANCE.  JURY
COMPETENCE IS NOT LIMITED TO THOSE WHO EARN THEIR LIVELIHOOD ON OTHER
THAN A DAILY BASIS.  ONE WHO IS PAID $3 A DAY MAY BE AS FULLY COMPETENT
AS ONE WHO IS PAID $30 A WEEK OR $300 A MONTH.  IN OTHER WORDS, THE PAY
PERIOD OF A PARTICULAR INDIVIDUAL IS COMPLETELY IRRELEVANT TO HIS
ELIGIBILITY AND CAPACITY TO SERVE AS A JUROR.  WAGE EARNERS, INCLUDING
THOSE WHO ARE PAID BY THE DAY, CONSTITUTE A VERY SUBSTANTIAL PORTION OF
THE COMMUNITY, FN3  A PORTION THAT CANNOT BE INTENTIONALLY AND
SYSTEMATICALLY EXCLUDED IN WHOLE OR IN PART WITHOUT DOING VIOLENCE TO
THE DEMOCRATIC NATURE OF THE JURY SYSTEM.  WERE WE TO SANCTION AN
EXCLUSION OF THIS NATURE WE WOULD ENCOURAGE WHATEVER DESIRES THOSE
RESPONSIBLE FOR THE SELECTION OF JURY PANELS MAY HAVE TO DISCRIMINATE
AGAINST PERSONS OF LOW ECONOMIC AND SOCIAL STATUS.  WE WOULD BREATHE
LIFE INTO ANY LATENT TENDENCIES TO ESTABLISH THE JURY AS THE INSTRUMENT
OF THE ECONOMICALLY AND SOCIALLY PRIVILEGED.  THAT WE REFUSE TO DO. 

IT IS CLEAR THAT A FEDERAL JUDGE WOULD BE JUSTIFIED IN EXCUSING A
DAILY WAGE EARNER FOR WHOM JURY SERVICE WOULD ENTAIL AN UNDUE FINANCIAL
HARDSHIP.  FN4  BUT THAT FACT CANNOT SUPPORT THE COMPLETE EXCLUSION OF
ALL DAILY WAGE EARNERS REGARDLESS OF WHETHER THERE IS ACTUAL HARDSHIP
INVOLVED.  HERE THERE WAS NO EFFORT, NO INTENTION, TO DETERMINE IN
ADVANCE WHICH INDIVIDUAL MEMBERS OF THE DAILY WAGE EARNING CLASS WOULD
SUFFER AN UNDUE HARDSHIP BY SERVING ON A JURY AT THE RATE OF $4 A DAY. 
ALL WERE SYSTEMATICALLY AND AUTOMATICALLY EXCLUDED.  IN THIS CONNECTION
IT SHOULD BE NOTED THAT THE MERE FACT THAT A PERSON EARNS MORE THAN $4
A DAY WOULD NOT SERVE AS AN EXCUSE.  JURY SERVICE IS A DUTY AS WELL AS
A PRIVILEGE OF CITIZENSHIP; IT IS A DUTY THAT CANNOT BE SHIRKED ON A
PLEA OF INCONVENIENCE OR DECREASED EARNING POWER.  ONLY WHEN THE
FINANCIAL EMBARRASSMENT IS SUCH AS TO IMPOSE A REAL BURDEN AND HARDSHIP
DOES A VALID EXCUSE OF THIS NATURE APPEAR.  THUS A BLANKET EXCLUSION OF
ALL DAILY WAGE EARNERS, HOWEVER WELL-INTENTIONED AND HOWEVER JUSTIFIED
BY PRIOR ACTIONS OF TRIAL JUDGES, MUST BE COUNTED AMONG THOSE
TENDENCIES WHICH UNDERMINE AND WEAKEN THE INSTITUTION OF JURY TRIAL. 
"THAT THE MOTIVES INFLUENCING SUCH TENDENCIES MAY BE OF THE BEST MUST
NOT BLIND US TO THE DANGERS OF ALLOWING ANY ENCROACHMENT WHATSOEVER ON
THIS ESSENTIAL RIGHT.  STEPS INNOCENTLY TAKEN MAY, ONE BY ONE, LEAD TO
THE IRRETRIEVABLE IMPAIRMENT OF SUBSTANTIAL LIBERTIES."  GLASSER V.
UNITED STATES, SUPRA, 86. 

IT FOLLOWS THAT WE CANNOT SANCTION THE METHOD BY WHICH THE JURY PANEL
WAS FORMED IN THIS CASE.  THE TRIAL COURT SHOULD HAVE GRANTED
PETITIONER'S MOTION TO STRIKE THE PANEL.  THAT CONCLUSION REQUIRES US
TO REVERSE THE JUDGMENT BELOW IN THE EXERCISE OF OUR POWER OF
SUPERVISION OVER THE ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS. 
SEE MCNABB V. UNITED STATES, 318 U.S. 332, 340.  ON THAT BASIS IT
BECOMES UNNECESSARY TO DETERMINE WHETHER THE PETITIONER WAS IN ANY WAY
PREJUDICED BY THE WRONGFUL EXCLUSION OR WHETHER HE WAS ONE OF THE
EXCLUDED CLASS.  SEE GLASSER V. UNITED STATES, SUPRA; WALTER V. STATE,
208 IND. 231, 195 N.E. 268; STATE EX REL. PASSER V. COUNTY BOARD, 171
MINN. 177, 213 N.W. 545.  IT IS LIKEWISE IMMATERIAL THAT THE JURY WHICH
ACTUALLY DECIDED THE FACTUAL ISSUE IN THE CASE WAS FOUND TO CONTAIN AT
LEAST FIVE MEMBERS OF THE LABORING CLASS.  THE EVIL LIES IN THE
ADMITTED WHOLESALE EXCLUSION OF A LARGE CLASS OF WAGE EARNERS IN
DISREGARD OF THE HIGH STANDARDS OF JURY SELECTION.  TO REASSERT THOSE
STANDARDS, TO GUARD AGAINST THE SUBTLE UNDERMINING OF THE JURY SYSTEM,
REQUIRES A NEW TRIAL BY A JURY DRAWN FROM A PANEL PROPERLY AND FAIRLY
CHOSEN.  REVERSED. 

FN1  THE INJUNCTION AGAINST PETITIONER PROCEEDING IN THE STATE COURT
WAS AFFIRMED UPON APPEAL.  THIEL V. SOUTHERN PACIFIC CO., 126 F.2D 710;
CERTIORARI DENIED, 316 U.S. 698. 

FN2 FEDERAL STATUTES PROHIBIT THE SERVICE BY ANY PERSON AS A PETIT
JUROR "MORE THAN ONE TERM IN A YEAR," 28 U.S.C. SEC. 423, EXEMPT FROM
JURY SERVICE ARTIFICERS AND WORKMEN EMPLOYED IN THE ARMORIES AND
ARSENALS OF THE UNITED STATES, 50 U.S.C. SEC. 57, AND SET UP
DISQUALIFICATIONS FOR SERVICE AS A JURYMAN OR TALESMAN "IN ANY
PROSECUTION FOR BIGAMY, POLYGAMY, OR UNLAWFUL COHABITATION, UNDER ANY
STATUTE OF THE UNITED STATES," 28 U.S.C. SEC. 426.    SEE, IN GENERAL,
BLUME, "JURY SELECTION ANALYZED:  PROPOSED REVISION OF FEDERAL SYSTEM,"
42 MICH. L. REV. 831; REPORT TO THE JUDICIAL CONFERENCE OF SENIOR
CIRCUIT JUDGES OF THE UNITED STATES OF THE COMMITTEE ON SELECTION OF
JURORS (1942); REPORT OF THE COMMISSION ON THE ADMINISTRATION OF
JUSTICE IN NEW YORK (1934). 

FN3  IN THE SAN FRANCISCO-OAKLAND INDUSTRIAL AREA IN 1939 THERE WERE
76,374 WAGE EARNERS EMPLOYED BY MANUFACTURERS OUT OF A TOTAL POPULATION
(AS OF 1940) OF 1,412,686.  SIXTEENTH CENSUS OF THE UNITED STATES:
1940, MANUFACTURES 1939, VOL. III, P. 80.    FN4  SEE STATEMENT OF
JUDGE JOHN C. KNOX IN HEARINGS BEFORE THE HOUSE COMMITTEE ON THE
JUDICIARY, 79TH CONG., 1ST SESS., ON H.R. 3379, H.R. 3380 AND H.R.
3381, SERIAL NO. 3, JUNE 12 AND 13, 1945, P. 4.  "...  WHEN JURORS'
COMPENSATION IS LIMITED TO $4 PER DAY, AND WHEN THEIR PERIODS OF
SERVICE ARE OFTEN PROTRACTED, THOUSANDS UPON THOUSANDS OF PERSONS
SIMPLY CANNOT AFFORD TO SERVE.  TO REQUIRE THEM TO DO SO IS NOTHING
LESS THAN THE IMPOSITION UPON THEM OF EXTREME HARDSHIP."  ID., P. 8. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE REED CONCURS,
DISSENTING. 

THIS WAS A SUIT BROUGHT BY THE PETITIONER, A SALESMAN, AGAINST THE
SOUTHERN PACIFIC COMPANY FOR INJURIES SUFFERED BY HIM WHILE A PASSENGER
ON ONE OF THE RAILROAD'S TRAINS, AND ATTRIBUTED TO THE COMPANY'S
NEGLIGENCE.  THE TRIAL WAS IN THE UNITED STATES DISTRICT COURT SITTING
IN SAN FRANCISCO.  THE JURY RENDERED A VERDICT AGAINST THE PETITIONER. 
THE DISTRICT COURT FOUND NO GROUND FOR SETTING IT ASIDE AND ENTERED
JUDGMENT ON THE VERDICT.  UPON FULL REVIEW OF THE TRIAL, THE CIRCUIT
COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED THE JUDGMENT.  149 F.2D
783.  THUS, A VERDICT ARRIVED AT BY A JURY WHOSE JUDGMENT ON THE MERITS
THE DISTRICT COURT HAS FOUND UNASSAILABLE, WHICH THE CIRCUIT COURT OF
APPEALS HAS AFFIRMED ON THE MERITS, AND WHICH THIS COURT HAS REFUSED TO
REVIEW ON THE MERITS, 326 U.S. 716, IS HERE NULLIFIED BECAUSE OF AN
ABSTRACT OBJECTION TO THE MANNER IN WHICH THE DISTRICT JUDGES FOR THE
NORTHERN DISTRICT OF CALIFORNIA HAVE HERETOFORE GENERALLY DISCHARGED
THEIR DUTY, WITH THE APPROVAL OF THE REVIEWING JUDGES OF THE NINTH
CIRCUIT, TO SECURE APPROPRIATE JURY PANELS. 

THE PROCESS OF JUSTICE MUST OF COURSE NOT BE TAINTED BY PROPERTY
PREJUDICE ANY MORE THAN BY RACIAL OR RELIGIOUS PREJUDICE.  THE TASK OF
GUARDING AGAINST SUCH PREJUDICE DEVOLVES UPON THE DISTRICT JUDGES, WHO
HAVE THE PRIMARY RESPONSIBILITY FOR THE SELECTION OF JURORS, AND THE
CIRCUIT JUDGES, WHOSE REVIEW OF VERDICTS IS NORMALLY FINAL.  IT IS
EMBRACED IN THE DUTY, FORMULATED BY THE JUDICIAL OATH, TO "ADMINISTER
JUSTICE WITHOUT RESPECT TO PERSONS, AND DO EQUAL RIGHT TO THE POOR AND
TO THE RICH  ..."  1 STAT. 73, 76, 36 STAT. 1087, 1161; 28 U.S.C. SEC.
372.  BUT IT IS NOT SUGGESTED THAT THE JURY WAS SELECTED SO AS TO BRING
PROPERTY PREJUDICE INTO PLAY IN RELATION TO THIS SPECIFIC CASE OR TYPE
OF CASE, NOR IS THERE THE BASIS FOR CONTENDING THAT THE TRIAL JUDGE
ALLOWED THE SELECTIVE PROCESS TO BE MANIPULATED IN FAVOR OF THE
PARTICULAR DEFENDANT.  NO SUCH CLAIM IS NOW SUSTAINED.  NEITHER IS IT
CLAIMED THAT THE DISTRICT JUDGES FOR THE NORTHERN DISTRICT OF
CALIFORNIA, WITH THE APPROVAL OF THE CIRCUIT JUDGES, DESIGNED RACIAL,
RELIGIOUS, SOCIAL, OR ECONOMIC DISCRIMINATION TO INFLUENCE THE MAKEUP
OF JURY PANELS, OR THAT SUCH UNFAIR INFLUENCE INFUSED THE SELECTION OF
THE PANEL, OR WAS REFLECTED IN THOSE WHO WERE CHOSEN AS JURORS IN THIS
CASE.  NOR IS THERE ANY SUGGESTION THAT THE METHOD OF SELECTING THE
JURY IN THIS CASE WAS AN INNOVATION.  WHAT IS CHALLENGED IS A LONG
STANDING PRACTICE ADOPTED IN ORDER TO DEAL WITH THE SPECIAL HARDSHIP
WHICH JURY SERVICE ENTAILS FOR WORKERS PAID BY THE DAY.  WHAT IS
CHALLENGED, IN SHORT, IS NOT A COVERT ATTEMPT TO BENEFIT THE PROPERTIED
BUT A PRACTICE DESIGNED, WISELY OR UNWISELY, TO RELIEVE THE
ECONOMICALLY LEAST SECURE FROM THE FINANCIAL BURDEN WHICH JURY SERVICE
INVOLVES UNDER EXISTING CIRCUMSTANCES. 

NO CONSTITUTIONAL ISSUE IS AT STAKE.  THE PROBLEM IS ONE OF JUDICIAL
ADMINISTRATION.  THE SOLE QUESTION OVER WHICH THE COURT DIVIDES IS
WHETHER THE ESTABLISHED PRACTICE IN THE NORTHERN DISTRICT OF CALIFORNIA
NOT TO CALL FOR JURY DUTY THOSE OTHERWISE QUALIFIED BUT DEPENDENT ON A
DAILY WAGE FOR THEIR LIVELIHOOD REQUIRES REVERSAL OF A JUDGMENT WHICH
IS INHERENTLY WITHOUT FLAW. 

TRIAL BY JURY PRESUPPOSES A JURY DRAWN FROM A POOL BROADLY
REPRESENTATIVE OF THE COMMUNITY AS WELL AS IMPARTIAL IN A SPECIFIC
CASE.  SINCE THE COLOR OF A MAN'S SKIN IS UNRELATED TO HIS FITNESS AS A
JUROR, NEGROES CANNOT BE EXCLUDED FROM JURY SERVICE BECAUSE THEY ARE
NEGROES.  E.G., CARTER V. TEXAS, 177 U.S. 442.  A GROUP MAY BE EXCLUDED
FOR REASONS THAT ARE RELEVANT NOT TO THEIR FITNESS BUT TO COMPETING
CONSIDERATIONS OF PUBLIC INTEREST, AS IS TRUE OF THE EXCLUSION OF
DOCTORS, MINISTERS, LAWYERS, AND THE LIKE.  RAWLINS V. GEORGIA, 201
U.S. 638.  BUT THE BROAD REPRESENTATIVE CHARACTER OF THE JURY SHOULD BE
MAINTAINED, PARTLY AS ASSURANCE OF A DIFFUSED IMPARTIALITY AND PARTLY
BECAUSE SHARING IN THE ADMINISTRATION OF JUSTICE IS A PHASE OF CIVIC
RESPONSIBILITY.  SEE SMITH V. TEXAS, 311 U.S. 128, 130. 

OBVIOUSLY THESE ACCEPTED GENERAL CONSIDERATIONS MUST HAVE MUCH LEEWAY
IN APPLICATION.  IN THE ABSTRACT THE COURT ACKNOWLEDGES THIS.  "THE
CHOICE OF THE MEANS BY WHICH UNLAWFUL DISTINCTIONS AND DISCRIMINATIONS
ARE TO BE AVOIDED RESTS LARGELY IN THE SOUND DISCRETION OF THE TRIAL
COURTS AND THEIR OFFICERS."  CONGRESS HAS MADE FEW INROADS UPON THIS
DISCRETION.  ITS CHIEF ENACTMENT UNDERLINES THE IMPORTANCE OF AVOIDING
RIGIDITIES IN THE JURY SYSTEM AND RECOGNIZES THAT AMPLE PLAY MUST BE
ALLOWED THE JOINTS OF THE MACHINERY.  THE FIRST JUDICIARY ACT ADOPTED
FOR THE FEDERAL COURTS THE QUALIFICATIONS AND EXEMPTIONS, WITH ALL
THEIR DIVERSITIES, PREVAILING IN THE STATES WHERE THE FEDERAL COURTS
SIT.  1 STAT. 73, 88.  THAT HAS REMAINED THE LAW.  36 STAT. 1087, 1164;
28 U.S.C. SEC. 411.  (FOR A COLLECTION OF FEDERAL STATUTES REGULATING
THE COMPOSITION AND SELECTION OF JURORS, SEE 37 HARV. L. REV. 1010,
1098-1100.)  WE WOULD HARDLY HAVE TAKEN THIS CASE TO CONSIDER WHETHER
THE FEDERAL COURT IN SAN FRANCISCO DEVIATED FROM THE REQUIREMENTS OF
CALIFORNIA LAW, AND NOTHING TURNS ON THAT HERE.  BUT IT IS NOT WITHOUT
ILLUMINATION THAT UNDER CALIFORNIA LAW ALL THOSE BELONGING TO THIS LONG
STRING OF OCCUPATIONS ARE EXEMPTED FROM JURY SERVICE:  JUDICIAL, CIVIL,
NAVAL, AND MILITARY OFFICERS OF THE UNITED STATES OR CALIFORNIA; LOCAL
GOVERNMENT OFFICIALS; ATTORNEYS, THEIR CLERKS, SECRETARIES, AND
STENOGRAPHERS; MINISTERS; TEACHERS; PHYSICIANS, DENTISTS, CHIROPODISTS,
OPTOMETRISTS, AND DRUGGISTS; OFFICERS, KEEPERS, AND ATTENDANTS AT
HOSPITALS OR OTHER CHARITABLE INSTITUTIONS; OFFICERS IN ATTENDANCE AT
PRISONS AND JAILS; EMPLOYEES ON BOATS AND SHIPS IN NAVIGABLE WATERS;
EXPRESS AGENTS, MAIL CARRIERS, EMPLOYEES OF TELEPHONE AND TELEGRAPH
COMPANIES; KEEPERS OF FERRIES OR TOLLGATES; NATIONAL GUARDSMEN AND
FIREMEN; SUPERINTENDENTS, ENGINEERS, FIREMEN, BRAKEMEN, MOTORMEN, OR
CONDUCTORS OF RAILROADS; PRACTITIONERS TREATING THE SICK BY PRAYER. 
CALIFORNIA CODE OF CIVIL PROCEDURE, SEC. 200. 

PLACED IN ITS PROPER FRAMEWORK THE QUESTION NOW BEFORE US COMES TO
THIS:  HAVE THE DISTRICT JUDGES FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SUPPORTED BY THE CIRCUIT JUDGES OF THE NINTH CIRCUIT,
ABUSED THEIR DISCRETION IN SANCTIONING A PRACTICE OF NOT CALLING FOR
JURY DUTY THOSE WHO ARE DEPENDENT UPON A DAILY WAGE FOR THEIR
LIVELIHOOD? 

THE PRECISE ISSUE MUST BE FREED FROM ALL ATMOSPHERIC INNUENDOES.  NOT
TO DO SO IS UNFAIR TO THE ADMINISTRATION OF JUSTICE, WHICH SHOULD BE
THE TOUCHSTONE FOR THE DISPOSITION OF THE JUDGMENT UNDER CHALLENGE, AND
NO LESS UNFAIR TO A GROUP OF JUDGES OF LONG EXPERIENCE AND TESTED
FIDELITY.  IF WORKMEN WERE SYSTEMATICALLY NOT DRAWN FOR THE JURY, THE
PRACTICE WOULD BE INDEFENSIBLE.  BUT CONCERN OVER DISCRIMINATION
AGAINST WAGE EARNERS MUST BE PUT OUT OF THE RECKONING.  CONCEDEDLY
THOSE WHO ARE PAID WEEKLY OR MONTHLY WAGES WERE PLACED ON THE JURY
LISTS.  AND THAT NO LINE WAS DRAWN AGAINST THE WAGE EARNERS BECAUSE
THEY WERE WAGE EARNERS, AND THAT THERE WAS MERELY ANTICIPATORY EXCUSE
OF DAILY WAGE EARNERS, IS CONCLUSIVELY ESTABLISHED BY THE FACT THAT THE
WIVES OF SUCH DAILY WAGE EARNERS WERE INCLUDED IN THE JURY LISTS.  AS
TO ANY CLAIM OF THE OPERATION OF A DESIGNED ECONOMIC BIAS IN THE METHOD
OF SELECTING THE JURIES, THE CIRCUIT COURT OF APPEALS RIGHTLY FOUND "NO
EVIDENCE THAT THE PERSONS WHOSE NAMES WERE IN THE BOX, OR THE PERSONS
WHOSE NAMES WERE DRAWN THEREFROM AND WHO THUS BECAME MEMBERS OF THE
PANEL, WERE 'MOSTLY BUSINESS EXECUTIVES OR THOSE HAVING THE EMPLOYER'S
VIEWPOINT.'"  149 F.2D 783, 786. 

"WHEN THE QUESTION IS NARROWED TO ITS PROPER FORM THE ANSWER DOES NOT
NEED MUCH DISCUSSION.  THE NATURE OF THE CLASSES EXCLUDED WAS NOT SUCH
AS WAS LIKELY TO AFFECT THE CONDUCT OF THE MEMBERS AS JURYMEN, OR TO
MAKE THEM ACT OTHERWISE THAN THOSE WHO WERE DRAWN WOULD ACT.  THE
EXCLUSION WAS NOT THE RESULT OF RACE OR CLASS PREJUDICE.  IT DOES NOT
EVEN APPEAR THAT ANY OF THE DEFENDANTS BELONGED TO ANY OF THE EXCLUDED
CLASSES.  THE GROUND OF OMISSION NO DOUBT WAS THAT POINTED OUT BY THE
STATE COURT, THAT THE BUSINESS OF THE PERSONS OMITTED WAS SUCH THAT
EITHER THEY WOULD HAVE BEEN ENTITLED TO CLAIM EXEMPTION OR THAT
PROBABLY THEY WOULD HAVE BEEN EXCUSED."  SO THIS COURT SPEAKING THROUGH
MR. JUSTICE HOLMES ANSWERED A RELATED QUESTION IN RAWLINS V. GEORGIA,
201 U.S. 638, 640.  AND THE JUSTIFICATION FOR THE ANSWER APPLIES TO THE
PRESENT SITUATION. 

IT IS DIFFICULT TO BELIEVE THAT THIS JUDGMENT WOULD HAVE BEEN
REVERSED IF THE TRIAL JUDGE HAD EXCUSED, ONE BY ONE, ALL THOSE WAGE
EARNERS WHOM THE JURY COMMISSIONER, ACTING ON THE PRACTICE OF TRIAL
JUDGES OF SAN FRANCISCO, EXCLUDED.  FOR IT WILL HARDLY BE CONTENDED
THAT THE ABSENCE OF SUCH DAILY WAGE EARNERS FROM THE JURY PANEL REMOVED
A GROUP WHO WOULD ACT OTHERWISE THAN WORKERS PAID BY THE WEEK OR THE
WIVES OF THE DAILY WAGE EARNERS THEMSELVES.  THE EXCLUSION OF THE DAILY
WAGE EARNERS DOES NOT REMOVE A GROUP WHO WOULD, IN THE LANGUAGE OF MR.
JUSTICE HOLMES, "ACT OTHERWISE THAN THOSE WHO ARE DRAWN WOULD ACT." 
JUDGED BY THE TREND OF CENSUS STATISTICS, LABORERS PAID BY THE DAY ARE
NOT A PREDOMINANT PORTION OF THE WORKERS OF THE COUNTRY.  SEE SIXTEENTH
CENSUS OF THE UNITED STATES, 1940, POPULATION, VOL. III, THE LABOR
FORCE, PART 2, PP. 290 ET SEQ. IT CERTAINLY IS TOO LARGE AN ASSUMPTION
ON WHICH TO BASE JUDICIAL ACTION THAT THOSE WORKERS WHO ARE PAID BY THE
DAY HAVE A DIFFERENT OUTLOOK PSYCHOLOGICALLY AND ECONOMICALLY THAN
THOSE WHO EARN WEEKLY WAGES.  IN THE LANGUAGE OF MR. CHIEF JUSTICE
HUGHES, "IMPARTIALITY IS NOT A TECHNICAL CONCEPTION.  IT IS A STATE OF
MIND."  UNITED STATES V. WOOD, 299 U.S. 123, 145.  AND AMERICAN SOCIETY
IS HAPPILY NOT SO FRAGMENTIZED THAT THOSE WHO GET PAID BY THE DAY ADOPT
A DIFFERENT SOCIAL OUTLOOK, HAVE A DIFFERENT SENSE OF JUSTICE, AND A
DIFFERENT CONCEPTION OF A JUROR'S RESPONSIBILITY THAN THEIR FELLOW
WORKERS PAID BY THE WEEK.  NO DOUBT THE INSECURITIES OF A SYSTEM OF
DAILY EARNINGS, OR GENERALLY OF WAGES ON LESS THAN AN ANNUAL BASIS,
RAISE SERIOUS PROBLEMS AS DOES, OF COURSE, ALSO THE QUESTION OF
GUARANTEED WAGE PLANS.  SEE THE LETTER OF PRESIDENT ROOSEVELT TO THE
DIRECTOR OF WAR MOBILIZATION, JAMES F. BYRNES, ON THE DATE OF MARCH 20,
1945, CARRYING OUT THE SUGGESTION OF A REPORT TO THE PRESIDENT BY THE
WAR LABOR BOARD FOR THE CREATION OF A COMMISSION TO STUDY THE QUESTION
OF GUARANTEED WAGE PLANS.  AND SEE BASIC STEEL CASE, 19 W.L.B. 568, 653
ET SEQ.; N.W.L.B. RESEARCH AND STATISTICS REPORT NO. 25, GUARANTEED
EMPLOYMENT AND ANNUAL WAGE PLANS (1944).  BUT THESE ARE MATTERS QUITE
IRRELEVANT TO THE PROBLEM CONFRONTING DISTRICT JUDGES IN DEALING WITH
THE PRESENT PLIGHT OF DAILY WAGE EARNERS WHEN CALLED TO SERVE AS JURORS
AND THE POWER OF THE JUDGES, AS A MATTER OF DISCRETION, TO EXCUSE SUCH
DAILY WAGE EARNERS FROM DUTY. 

FOR IT CANNOT BE DENIED THAT JURY SERVICE BY PERSONS DEPENDENT UPON A
DAILY WAGE IMPOSES A VERY REAL BURDEN.  JUDGE JOHN C. KNOX, SENIOR
DISTRICT JUDGE OF THE SOUTHERN DISTRICT OF NEW YORK, THUS DESCRIBED THE
PROBLEM: 

"...  WHEN JURORS' COMPENSATION IS LIMITED TO $4 PER DAY, AND WHEN
THEIR PERIODS OF SERVICE ARE OFTEN PROTRACTED, THOUSANDS UPON THOUSANDS
OF PERSONS SIMPLY CANNOT AFFORD TO SERVE.  TO REQUIRE THEM TO DO SO IS
NOTHING LESS THAN THE IMPOSITION UPON THEM OF EXTREME HARDSHIP. 

"WITH RESPECT TO THE ITEM LAST-MENTIONED, IT IS EASY TO SAY THAT JURY
DUTY SHOULD BE REGARDED AS A PATRIOTIC SERVICE, AND THAT ALL PUBLIC
SPIRITED PERSONS SHOULD WILLINGLY SACRIFICE PECUNIARY REWARDS IN THE
PERFORMANCE OF AN OBLIGATION OF CITIZENSHIP.  WITH THAT STATEMENT I AM
IN FULL ACCORD, BUT IT DOES NOT SOLVE THE DIFFICULTY.  ADEQUATE
PROVISION FOR ONE'S FAMILY IS THE FIRST CONSIDERATION OF MOST MEN.  AND
IF, WITH THIS THOUGHT PREDOMINANT IN A MAN'S MIND, HE IS REQUIRED TO
PERFORM A PUBLIC SERVICE THAT MEANS A DEFAULT OF AN INSURANCE PREMIUM,
THE SACRIFICE OF A SUIT OF CLOTHES, OR THE LOSS OF THIS (HIS) JOB, HE
WILL ENTERTAIN FEELINGS OF RESENTMENT THAT WILL BE ANYTHING BUT
CONDUCIVE TO THE RENDITION OF JUSTICE.  IN OTHER WORDS, PERSONS WITH A
GRIEVANCE AGAINST THE GOVERNMENT OR WHO SERVE UNDER CONDITIONS THAT
EXPOSE THEM TO SELF-DENIAL ARE NOT LIKELY TO HAVE THE SPIRITUAL
CONTENTMENT AND MENTAL DETACHMENT THAT GOOD JURORS REQUIRE."  HEARINGS
BEFORE H.R. COMMITTEE ON THE JUDICIARY ON H.R. 3379, H.R. 3380, H.R.
3381, 79TH CONG., 1ST SESS. (1945) 8.    NO DOUBT, IN VIEW OF THE
CHANGES IN THE COMPOSITION AND DISTRIBUTION OF OUR POPULATION AND THE
GROWTH OF METROPOLITAN AREAS, A REEXAMINATION IS DUE OF THE OPERATION
OF THE JURY SYSTEM IN THE FEDERAL COURTS.  JUST AS THE FEDERAL JUDICIAL
SYSTEM HAS BEEN REORGANIZED AND ADMINISTRATIVELY MODIFIED THROUGH A
SERIES OF RECENT ENACTMENTS (SEE ACT OF SEPTEMBER 14, 1922, 42 STAT.
837, 838, 28 U.S.C. SECS. 218 ET SEQ.; ACT OF FEBRUARY 13, 1925, 43
STAT. 936, 28 U.S.C. SECS. 41 ET SEQ.; ACT OF AUGUST 7, 1939, 53 STAT.
1223, 28 U.S.C. SECS. 444 ET SEQ.), THE JURY SYSTEM, THAT INDISPENSABLE
ADJUNCT OF THE FEDERAL COURTS, CALLS FOR REVIEW TO MEET MODERN
CONDITIONS.  THE OBJECT IS TO DEVISE A SYSTEM THAT IS FAIRLY
REPRESENTATIVE OF OUR VARIEGATED POPULATION, EXACTS THE OBLIGATION OF
CITIZENSHIP TO SHARE IN THE ADMINISTRATION OF JUSTICE WITHOUT OPERATING
TOO HARSHLY UPON ANY SECTION OF THE COMMUNITY, AND IS DULY REGARDFUL OF
THE PUBLIC INTEREST IN MATTERS OUTSIDE THE JURY SYSTEM.  THIS MEANS
THAT THE MANY FACTORS ENTERING INTO THE MANNER OF SELECTION, WITH
APPROPRIATE QUALIFICATIONS AND EXEMPTIONS, THE LENGTH OF SERVICE AND
THE BASIS OF COMPENSATION MUST BE PROPERLY BALANCED.  THESE ARE
ESSENTIALLY PROBLEMS IN ADMINISTRATION CALLING FOR APPROPRIATE
STANDARDS FLEXIBLY ADJUSTED. 

WISE ANSWERS PRECLUDE TREATMENT BY RIGID LEGISLATION OR RIGID
ADMINISTRATION.  CONGRESS HAS DEVISED THE APPROPRIATE PROCEDURE AND
INSTRUMENT FOR MAKING THESE DIFFICULT AND DELICATE ADJUSTMENTS BY ITS
CREATION, IN 1922, OF THE CONFERENCE OF SENIOR CIRCUIT JUDGES.  THE
CONFERENCE, UNDER THE PRESIDENCY OF THE CHIEF JUSTICE OF THE UNITED
STATES, IS CHARGED WITH THE DUTY OF CONTINUOUS OVERSIGHT OF THE ACTUAL
WORKINGS OF THE FEDERAL JUDICIAL SYSTEM AND OF MEETING DISCLOSED NEEDS,
EITHER THROUGH PRACTICES FORMULATED BY THE CONFERENCE, OR, WHEN
LEGISLATION IS NECESSARY OR MORE APPROPRIATE, THROUGH PROPOSALS
SUBMITTED TO CONGRESS.  SEE 40 HARV. L. REV. 431.  THAT IS PRECISELY
THE COURSE THAT HAS BEEN FOLLOWED IN REGARD TO THE INADEQUACIES IN THE
OPERATION OF THE FEDERAL JURY SYSTEM.  IN SEPTEMBER, 1941, THE LATE
CHIEF JUSTICE BROUGHT THE MATTER BEFORE THE CONFERENCE.  AS A RESULT,
MR. CHIEF JUSTICE STONE APPOINTED A COMMITTEE OF EXPERIENCED DISTRICT
JUDGES, SEE REPORT OF THE JUDICIAL CONFERENCE (1941) 16, UNDER THE
CHAIRMANSHIP OF JUDGE KNOX WHO, BECAUSE OF THE LENGTH AND RICHNESS OF
HIS EXPERIENCE IN THE BUSIEST DISTRICT OF THE COUNTRY, BROUGHT UNUSUAL
EQUIPMENT FOR DEVISING APPROPRIATE REFORMS.  IN SEPTEMBER, 1942, THE
COMMITTEE REPORTED, REPORT TO THE JUDICIAL CONFERENCE OF THE COMMITTEE
ON SELECTION OF JURORS (1942) 1, AND SUBMITTED PROPOSALS FOR
LEGISLATION.  ID. AT 44, 62, 107.  BILLS TO CARRY OUT THESE
RECOMMENDATIONS WERE INTRODUCED IN THE SENATE ON JANUARY 11, 1944, S.
1623, 1624, 1625, 78TH CONG., 2D SESS., AND IN THE HOUSE ON JUNE 5,
1945, H.R. 3379, 3380, 3381, 79TH CONG., 1ST SESS.  HEARINGS WERE HAD
UPON THE HOUSE BILLS ON JUNE 12 AND 13, 1945, AND ACTION ON THEM IS NOW
PENDING. 

THE COURT NOW DEALS BY ADJUDICATION WITH ONE PHASE OF AN ORGANIC
PROBLEM AND DOES SO BY NULLIFYING A JUDGMENT WHICH, ON THE RECORD, WAS
WHOLLY UNAFFECTED BY DIFFICULTIES INHERENT IN A SITUATION THAT CALLS
FOR COMPREHENSIVE TREATMENT, BOTH LEGISLATIVE AND ADMINISTRATIVE.  IF
IT BE SUGGESTED THAT UNTIL THERE IS LEGISLATION THIS DECISION WILL BE
THE MEANS OF ENCOURAGING THE DISTRICT JUDGES TO UNCOVER A BETTER ANSWER
THAN THEY HAVE THUS FAR GIVEN TO A LIVELY PROBLEM, AN APPROPRIATE
ADMONITION FROM THE COURT WOULD ACCOMPLISH THE SAME RESULT, OR COMMON
ACTION REGARDING THE PRACTICE NOW UNDER REVIEW MAY BE SECURED FROM THE
CONFERENCE OF SENIOR CIRCUIT JUDGES.  TO REVERSE A JUDGMENT FREE FROM
INTRINSIC INFIRMITY AND PERHAPS TO PUT IN QUESTION OTHER JUDGMENTS
BASED ON VERDICTS THAT RESULTED FROM THE SAME METHOD OF SELECTING
JURIES, REMINDS TOO MUCH OF BURNING THE BARN IN ORDER TO ROAST THE
PIG. 

I WOULD AFFIRM THE JUDGMENT. 
..END :














UNITED STATES V. HOLPUCH CO., 328 U.S. 234 


NOS. 696 AND 697.  ARGUED MAY 3, 1946.  - DECIDED MAY 20, 1946.  - 104
CT. CLS. 254, REVERSED. 


RESPONDENT HAD TWO CONSTRUCTION CONTRACTS WITH THE UNITED STATES, EACH
OF WHICH PROVIDED THAT "DISPUTES CONCERNING QUESTIONS ARISING UNDER
THIS CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER  ...  SUBJECT
TO WRITTEN APPEAL  ...  TO THE HEAD OF THE DEPARTMENT."  HELD: 

1.  DISPUTES AS TO EXTRA PAY FOR FOOTING EXCAVATIONS AND FOR
INCREASED WAGES PAID TO BRICKLAYERS WERE "QUESTIONS ARISING UNDER THIS
CONTRACT" WITHIN THE MEANING OF THE QUOTED PROVISION.  PP. 238-239. 

2.  RESPONDENT'S FAILURE TO EXHAUST THE ADMINISTRATIVE APPEAL
PROVISIONS OF THE CONTRACTS BARRED RECOVERY IN THE COURT OF CLAIMS IN
RESPECT OF SUCH DISPUTES.  P. 239. 

3.  IN THE ABSENCE OF CLEAR EVIDENCE THAT THE APPEAL PROCEDURE
PRESCRIBED IS INADEQUATE OR UNAVAILABLE, THAT PROCEDURE MUST BE PURSUED
AND EXHAUSTED BEFORE RESPONDENT MAY BE HEARD TO COMPLAIN IN A COURT. 
P. 240. 

4.  THE DESIGNATION ON THE COVERS OF THE CONTRACTS OF THE DISBURSING
OFFICER WHO WOULD MAKE PAYMENT ON THE CONTRACTS WAS NOT A PART OF THE
CONTRACTS AND CAN NOT BE USED IN ANY WAY TO ALTER OR AMEND ANY ACTUAL
PROVISIONS THEREOF.  P. 240. 

5.  EVEN IF IT BE ASSUMED THAT THE DISPUTE AS TO EXTRA PAY FOR
FOOTING EXCAVATIONS CONCERNED ONLY THE AMOUNT OF PAYMENT UNDER THE
CONTRACT, SUCH AN ISSUE IS A QUESTION "ARISING UNDER" THE CONTRACT AND
THEREFORE EXPRESSLY SUBJECT TO THE ADMINISTRATIVE APPEAL PROVISION.  P.
241. 

6.  THERE BEING NO EVIDENCE THAT THE WAGE INCREASE TO BRICKLAYERS WAS
ESTABLISHED BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS,
WHICH UNDER THE CONTRACTS WAS THE ONLY AGENCY THAT HAD AUTHORITY TO DO
SO, A PROVISION FOR AN AUTOMATIC ADJUSTMENT OF THE AMOUNT DUE THE
CONTRACTOR IN THAT EVENT DID NOT BECOME OPERATIVE.  P. 242. 

UNITED STATES V. JOSEPH A. HOLPUCH CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

THE RESPONDENT BROUGHT TWO SUITS IN THE COURT OF CLAIMS ON TWO
CONTRACTS WITH THE UNITED STATES, AND WAS ADJUDGED ENTITLED TO RECOVER
ON BOTH.  THIS COURT GRANTED CERTIORARI.  327 U.S. 772.  REVERSED, P.
243. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE NARROW QUESTION HERE IS WHETHER A CONTRACTOR'S FAILURE TO EXHAUST
THE ADMINISTRATIVE APPEAL PROVISIONS OF A GOVERNMENT CONSTRUCTION
CONTRACT BARS HIM FROM BRINGING SUIT IN THE COURT OF CLAIMS TO RECOVER
DAMAGES. 

RESPONDENT, A BUILDING CONTRACTOR, ENTERED INTO TWO CONTRACTS  FN1
WITH THE UNITED STATES THROUGH THE WAR DEPARTMENT IN 1933 TO CONSTRUCT
OFFICERS' QUARTERS AT FORT SAM HOUSTON, TEXAS, WHICH WERE BEING BUILT
AS A FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS PROJECT. 
DISPUTES AROSE AS TO EXCAVATIONS FOR FOOTINGS AND AS TO INCREASED WAGES
ORDERED TO BE PAID TO RESPONDENT'S BRICKLAYERS.  RESPONDENT BROUGHT
SUIT AGAINST THE GOVERNMENT ON THESE MATTERS IN THE COURT OF CLAIMS,
WHICH ENTERED JUDGMENTS IN FAVOR OF RESPONDENT ON BOTH ITEMS.  FN2 

ARTICLE 15, WHICH APPEARED IN BOTH CONTRACTS, PROVIDED:  "ALL LABOR
ISSUES ARISING UNDER THIS CONTRACT WHICH CANNOT BE SATISFACTORILY
ADJUSTED BY THE CONTRACTING OFFICER SHALL BE SUBMITTED TO THE BOARD OF
LABOR REVIEW.  EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS
CONTRACT, ALL OTHER DISPUTES CONCERNING QUESTIONS ARISING UNDER THIS
CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER OR HIS DULY
AUTHORIZED REPRESENTATIVE, SUBJECT TO WRITTEN APPEAL BY THE CONTRACTOR,
WITHIN 30 DAYS TO THE HEAD OF THE DEPARTMENT CONCERNED OR HIS DULY
AUTHORIZED REPRESENTATIVE, WHOSE DECISION SHALL BE FINAL AND CONCLUSIVE
UPON THE PARTIES THERETO AS TO SUCH QUESTIONS.  IN THE MEANTIME THE
CONTRACTOR SHALL DILIGENTLY PROCEED WITH THE WORK AS DIRECTED." 

THE DISPUTE CONCERNING THE FOOTING EXCAVATIONS AROSE OUT OF AN
APPARENT INCONSISTENCY BETWEEN CERTAIN FIGURES USED IN THE
SPECIFICATIONS AND IN THE DRAWINGS.  THE SPECIFICATIONS ESTIMATED THAT
RESPONDENT WAS TO EXCAVATE TO A DEPTH OF 37 1/2 FEET BELOW THE FIRST
FLOOR LEVEL OF THE BUILDINGS.  THE DRAWINGS, ON THE OTHER HAND, WERE
FOUND BY THE COURT OF CLAIMS TO CALL FOR EXCAVATIONS TO THE DEPTH OF 33
FEET.  ADDITIONAL PAYMENTS WERE TO BE MADE TO RESPONDENT FOR
EXCAVATIONS DEEPER THAN INDICATED "ON THE DRAWINGS," WHILE THE
GOVERNMENT WAS TO RECEIVE A CREDIT FOR EXCAVATIONS OF A LESSER DEPTH. 
RESPONDENT MADE VARIOUS EXCAVATIONS RANGING IN DEPTH FROM 27.58 FEET TO
42.42 FEET.  THE PROBLEM THUS PRESENTED ITSELF AS TO WHETHER THE 37 1/2
FOOT FIGURE IN THE SPECIFICATIONS OR THE 33-FOOT FIGURE IN THE DRAWINGS
SHOULD SERVE AS THE BASIS FOR EXTRA COMPENSATION TO THE RESPONDENT AND
FOR CREDIT TO THE GOVERNMENT. 

ARTICLE 2 OF THE CONTRACTS PROVIDED:  "IN CASE OF DIFFERENCE BETWEEN
DRAWINGS AND SPECIFICATIONS, THE SPECIFICATIONS SHALL GOVERN.  IN ANY
CASE OF DISCREPANCY IN THE FIGURES OR DRAWINGS, THE MATTER SHALL BE
IMMEDIATELY SUBMITTED TO THE CONTRACTING OFFICER  ..."  THE
SPECIFICATIONS CONTAINED A SIMILAR PROVISION AND ADDED THAT THE
CONSTRUCTING QUARTERMASTER WAS TO BE THE INTERPRETER OF THE "INTENT AND
MEANING OF THE DRAWINGS AND SPECIFICATIONS."  THE CONSTRUCTING
QUARTERMASTER DULY RESOLVED THE DISCREPANCY IN THIS INSTANCE BY
INTERPRETING THE SPECIFICATIONS AND DRAWINGS TO MEAN THAT THE FOOTING
EXCAVATIONS WERE TO BE PAID FOR ON THE BASIS OF THE 37 1/2 FEET
ESTIMATED IN THE SPECIFICATIONS.  RESPONDENT MADE NO ATTEMPT TO APPEAL
FROM THIS DECISION TO THE CONTRACTING OFFICER OR TO THE DEPARTMENTAL
HEAD IN ACCORDANCE WITH THE TERMS OF ARTICLE 15. 

THE OTHER DISPUTE CONCERNED A REQUIRED INCREASE IN WAGES FOR
RESPONDENT'S BRICKLAYERS.  THE CONTRACTS ESTABLISHED $1.00 PER HOUR AS
THE MINIMUM WAGE RATE FOR SKILLED LABOR UNLESS, AS OF APRIL 30, 1933,
THERE SHOULD BE A HIGHER PREVAILING HOURLY RATE PRESCRIBED BY
COLLECTIVE AGREEMENTS BETWEEN EMPLOYERS AND EMPLOYEES.  ARTICLE 18(E)
PROVIDED THAT THIS MINIMUM WAGE RATE "SHALL BE SUBJECT TO CHANGE BY THE
FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS ON RECOMMENDATION OF
THE BOARD OF LABOR REVIEW," IN WHICH CASE "THE CONTRACT PRICE SHALL BE
ADJUSTED ACCORDINGLY."  ON MARCH 3, 1934, THE BOARD OF LABOR REVIEW
RULED THAT BRICKLAYERS ON ANOTHER ARMY CONSTRUCTION PROJECT AT SAN
ANTONIO, TEXAS, WITH WHICH RESPONDENT WAS UNCONNECTED, SHOULD BE PAID
AT THE RATE OF $1.25 PER HOUR RETROACTIVE TO FEBRUARY 2, 1934. 
RESPONDENT WAS INFORMED OF THIS DECISION AND ON MARCH 23, 1934, THE
CONSTRUCTING QUARTERMASTER ADVISED RESPONDENT THAT ALL BRICKLAYERS
EMPLOYED ON THE INSTANT PROJECT "WILL BE PAID AT THE RATE OF $1.25 PER
HOUR."  RESPONDENT STATED THAT IT "WOULD BE GOVERNED ACCORDINGLY BUT
UNDER PROTEST, AND (THAT IT) EXPECTED REIMBURSEMENT OF THE DIFFERENCE
OF 25 CENTS PER HOUR."  ON MAY 12, 1934, THE CONSTRUCTING QUARTERMASTER
ADVISED RESPONDENT "THAT IT WAS THE DECISION OF THE CONTRACTING OFFICER
THAT BRICKLAYERS EMPLOYED ON WAR DEPARTMENT CONSTRUCTION PROJECTS AT
SAN ANTONIO, TEXAS, AND VICINITY (FORT SAM HOUSTON IS IN THIS VICINITY)
SHOULD BE PAID $1.25 PER HOUR, RETROACTIVE TO FEBRUARY 2, 1934," AND
THAT RESPONDENT WOULD BE WITHIN ITS RIGHTS "TO FILE APPEAL WITH THE
BOARD OF LABOR REVIEW FROM THE DECISION OF THE CONTRACTING OFFICER." 
FN3  NO SUCH APPEAL WAS TAKEN; RESPONDENT MERELY PAID ITS BRICKLAYERS
$1.25 PER HOUR AND THEN FILED A CLAIM IN THE COURT BELOW FOR THE 25
CENT DIFFERENTIAL.  HERE AGAIN THE PROVISIONS OF ARTICLE 15 WERE
IGNORED. 

WE CANNOT SANCTION RESPONDENT'S FAILURE TO ABIDE BY THE APPEAL
PROVISIONS OF ARTICLE 15 OF THE CONTRACTS WHICH IT MADE WITH THE UNITED
STATES.  BOTH THE DISPUTE OVER THE FOOTING EXCAVATIONS AND THE DISPUTE
OVER THE BRICKLAYERS' WAGES WERE "QUESTIONS ARISING UNDER THIS
CONTRACT" WITHIN THE MEANING OF ARTICLE 15.  THE FIRST WAS A QUESTION
ARISING UNDER ARTICLE 2 OF THE CONTRACTS AS WELL AS UNDER THE
SPECIFICATIONS, WHICH EXPRESSLY CONTEMPLATED THAT GOVERNMENT OFFICERS
WOULD RESOLVE ALL DISCREPANCIES BETWEEN SPECIFICATIONS AND DRAWINGS. 
THEIR DECISIONS IN SUCH MATTERS WERE CLEARLY APPEALABLE UNDER ARTICLE
15.  THE SECOND DISPUTE WAS A QUESTION ARISING UNDER THE WAGE
PROVISIONS OF ARTICLE 18 OF THE CONTRACTS; THAT QUESTION INVOLVED A
CONSIDERATION OF THE FACTUAL SITUATION SURROUNDING THE REQUIRED WAGE
INCREASE AND A DETERMINATION OF THE VALIDITY AND EFFECT OF THE INCREASE
UNDER THE CIRCUMSTANCES.  ANY DECISION OR ORDER OF A SUBORDINATE
GOVERNMENT OFFICER IN THIS RESPECT WAS ALSO APPEALABLE UNDER ARTICLE
15.  YET RESPONDENT DID NOT EVEN SEEK THE CONTRACTING OFFICER'S OPINION
AS TO THE FOOTING EXCAVATION DECISION OF THE CONSTRUCTING
QUARTERMASTER.  AND AS TO THE CONTRACTING OFFICER'S ORDER REQUIRING AN
INCREASE IN THE BRICKLAYERS' WAGES, RESPONDENT NEGLECTED TO FILE A
WRITTEN APPEAL TO THE DEPARTMENTAL HEAD OR HIS REPRESENTATIVE. 

BUT ARTICLE 15 IS SOMETHING MORE THAN A DEAD LETTER TO BE REVIVED
ONLY AT THE CONVENIENCE OR DISCRETION OF THE CONTRACTOR.  IT IS A
CLEAR, UNAMBIGUOUS PROVISION APPLICABLE AT ALL TIMES AND BINDING ON ALL
PARTIES TO THE CONTRACT.  NO COURT IS JUSTIFIED IN DISREGARDING ITS
LETTER OR SPIRIT.  ARTICLE 15 IS CONTROLLING AS TO ALL DISPUTES
"CONCERNING QUESTIONS ARISING UNDER THIS CONTRACT" UNLESS OTHERWISE
SPECIFIED IN THE CONTRACT.  IT CREATES A MECHANISM WHEREBY ADJUSTMENTS
MAY BE MADE AND ERRORS CORRECTED ON AN ADMINISTRATIVE LEVEL, THEREBY
PERMITTING THE GOVERNMENT TO MITIGATE OR AVOID LARGE DAMAGE CLAIMS THAT
MIGHT OTHERWISE BE CREATED.  UNITED STATES V. BLAIR, 321 U.S. 730,
735.  THIS MECHANISM, MOREOVER, IS EXCLUSIVE IN NATURE.  SOLELY THROUGH
ITS OPERATION MAY CLAIMS BE MADE AND ADJUDICATED AS TO MATTERS ARISING
UNDER THE CONTRACT.  UNITED STATES V. BLAIR, SUPRA, 735; UNITED STATES
V. CALLAHAN WALKER CO., 317 U.S. 56, 61.  AND IN THE ABSENCE OF SOME
CLEAR EVIDENCE THAT THE APPEAL PROCEDURE IS INADEQUATE OR UNAVAILABLE,
THAT PROCEDURE MUST BE PURSUED AND EXHAUSTED BEFORE A CONTRACTOR CAN BE
HEARD TO COMPLAIN IN A COURT. 

IT FOLLOWS THAT WHEN A CONTRACTOR CHOOSES WITHOUT DUE CAUSE TO IGNORE
THE PROVISIONS OF ARTICLE 15 HE DESTROYS HIS RIGHT TO SUE FOR DAMAGES
IN THE COURT OF CLAIMS.  THAT COURT IS THEN OBLIGED TO OUTLAW HIS
CLAIMS, WHATEVER MAY BE THEIR EQUITY.  TO DO OTHERWISE IS TO REWRITE
THE CONTRACT. 

IN THIS INSTANCE NO JUSTIFIABLE EXCUSE IS APPARENT FOR RESPONDENT'S
FAILURE TO EXHAUST THE APPEAL PROVISIONS OF ARTICLE 15.  CERTAINLY THE
REASONS RELIED UPON BY THE COURT OF CLAIMS ARE LACKING IN MERIT.  THE
COURT FELT THAT THE DISPUTE OVER THE FOOTING EXCAVATION FIGURES
INVOLVED ONLY A MATTER OF CONTRACT PRICE COMPUTATION AND THAT THE
RESPONSIBILITY FOR SUCH A COMPUTATION RESTED SOLELY WITH THE ARMY
FINANCE OFFICER AT FORT SAM HOUSTON, ANY DECISION BY THE CONTRACTING
OFFICER ON THE MATTER BEING NO MORE THAN ADVISORY.  SINCE THE CONTRACTS
MADE NO PROVISION FOR AN APPEAL OF THE FINANCE OFFICER'S COMPUTATION,
THE COURT OF CLAIMS HELD THAT THERE WAS NO APPEALABLE DECISION
CONFRONTING RESPONDENT AND THAT RESPONDENT'S CLAIM COULD BE HEARD AND
DETERMINED BY THAT COURT.  SUPPORT FOR THIS NOVEL INTERPRETATION WAS
SOUGHT IN THE STATEMENT ON THE COVERS OF THE CONTRACTS THAT PAYMENT ON
THE CONTRACTS WAS TO BE MADE "BY THE FINANCE OFFICER, U.S. ARMY, FORT
SAM HOUSTON, TEXAS."  THE SHORT ANSWER IS THAT THIS DESIGNATION OF A
DISBURSING OFFICER IS NOT A PART OF THE CONTRACTS AND CANNOT BE USED IN
ANY WAY TO ALTER OR AMEND ANY ACTUAL PROVISIONS THEREOF.  THE
DESIGNATION ONLY IDENTIFIES THE PERSON WHOSE DUTY IT IS TO PERFORM THE
MINISTERIAL FUNCTION OF DISBURSEMENT AND IS SUBJECT TO CHANGE AT ANY
TIME BY THE WAR DEPARTMENT WITHOUT NOTICE TO THE CONTRACTOR N4. 
MOREOVER, EVEN IF IT BE ASSUMED THAT THE ISSUE DID CONCERN ONLY THE
AMOUNT OF PAYMENT UNDER THE CONTRACTS N5, SUCH AN ISSUE IS A QUESTION
ARISING UNDER THE CONTRACTS AND HENCE EXPRESSLY SUBJECT TO THE
PROVISIONS OF ARTICLE 15. 

THE COURT OF CLAIMS SOUGHT TO JUSTIFY RESPONDENT'S REFUSAL TO APPEAL
THE CONTRACTING OFFICER'S DECISION TO INCREASE THE BRICKLAYERS' WAGES
BY HOLDING THAT THIS DECISION AUTOMATICALLY INCREASED THE CONTRACT
PRICE UNDER THE TERMS OF ARTICLE 18(E).  IT STATED THAT THE
CONSTRUCTING QUARTERMASTER REASONABLY CONSTRUED THE RULING OF THE BOARD
OF LABOR REVIEW IN REGARD TO THE SAN ANTONIO PROJECT AS APPLICABLE TO
THE VICINITY OF SAN ANTONIO AS WELL, THE WAGES PREVAILING IN THE
VICINITY BEING THE WAGES TO APPLY TO A CONTRACT WITHIN THAT VICINITY. 
THUS IT WAS SAID THAT IT WAS PLAINLY OF NO SPECIAL INTEREST TO
RESPONDENT TO APPEAL THE CONTRACTING OFFICER'S DECISION.  BUT THE
ASSUMPTION THAT THIS DECISION AUTOMATICALLY RESULTED IN A CONTRACT
PRICE INCREASE IS NOT IN ACCORD WITH THE FACTS OR WITH THE CONTRACT
PROVISIONS.  UNDER ARTICLE 18(E) NO AUTOMATIC PRICE INCREASE RESULTS
UNLESS THE WAGE CHANGE IS ESTABLISHED BY THE FEDERAL EMERGENCY
ADMINISTRATION OF PUBLIC WORKS ON RECOMMENDATION OF THE BOARD OF LABOR
REVIEW.  FN6  THE BOARD ALONE CANNOT EFFECT A CHANGE; IT CAN ONLY MAKE
A RECOMMENDATION.  HERE, HOWEVER, THERE WAS NO EVIDENCE THAT THE WAGE
INCREASE EITHER AS TO RESPONDENT OR AS TO THE SAN ANTONIO PROJECT WAS
ESTABLISHED BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS,
THE ONLY AGENCY THAT HAD AUTHORITY TO DO SO. ACCORDINGLY THE PROVISION
OF ARTICLE 18(E) FOR AN AUTOMATIC PRICE INCREASE DID NOT COME INTO
OPERATION, AS WAS RECOGNIZED BY RESPONDENT IN ITS PROTEST.  SERIOUS
QUESTIONS WERE THUS RAISED AS TO THE AUTHORITY OF THE CONTRACTING
OFFICER TO DIRECT A WAGE INCREASE UNDER THESE CIRCUMSTANCES AND AS TO
THE VALIDITY AND EFFECT OF THE RULING OF THE BOARD OF LABOR REVIEW. 
RESPONDENT SHOULD HAVE SECURED A DETERMINATION OF THOSE QUESTIONS BY
CHALLENGING THE CONTRACTING OFFICER'S DECISION PURSUANT TO THE
PROVISIONS OF ARTICLE 15. 

RESPONDENT HAVING FAILED TO AVAIL ITSELF OF THE PROCEDURE CREATED BY
ARTICLE 15 FOR THE SETTLEMENT OF DISPUTES ARISING UNDER THE CONTRACTS,
IT WAS PRECLUDED FROM BRINGING SUIT ON SUCH MATTERS IN THE COURT OF
CLAIMS.  AND THE COURT OF CLAIMS ERRED IN ENTERTAINING AND DECIDING THE
CLAIMS INVOLVING THOSE DISPUTES.  REVERSED. 

FN1  THE CONTRACTS HERE INVOLVED WERE BOTH EXECUTED ON U.S.
GOVERNMENT FORM NO. P.W.A. 51. 

FN2  THE COURT OF CLAIMS ENTERED SEPARATE JUDGMENTS AND OPINIONS IN
RELATION TO EACH OF THE TWO CONTRACTS, ALTHOUGH BOTH OF THEM WERE
IDENTICAL AND INVOLVED THE SAME ISSUES.  THE ONLY DIFFERENCE BETWEEN
THE CONTRACTS CONCERNED THE PARTICULAR BUILDINGS TO BE CONSTRUCTED. 

FN3  THE CONSTRUCTING QUARTERMASTER WAS IN ERROR IN STATING THAT
RESPONDENT COULD HAVE APPEALED THE WAGE INCREASE DECISION TO THE BOARD
OF LABOR REVIEW.  UNDER ARTICLE 15, THE BOARD IS CHARGED WITH HANDLING
APPEALS ONLY ON MATTERS INVOLVING "LABOR ISSUES."  THIS PLAINLY MEANS
LABOR ISSUES BETWEEN EMPLOYERS AND EMPLOYEES.  SEE BLAIR V. UNITED
STATES, 99 CT. CLS. 71, 149-150, REVERSED IN OTHER RESPECTS, 321 U.S.
730.  HERE, HOWEVER, THE ONLY CONTROVERSY LAY BETWEEN THE RESPONDENT
AND THE GOVERNMENT RATHER THAN BETWEEN RESPONDENT AND ITS BRICKLAYERS. 
HENCE THE ORDINARY REVIEW PROVISIONS OF ARTICLE 15 WERE APPLICABLE,
ENABLING RESPONDENT TO APPEAL THE CONTRACTING OFFICER'S DECISION TO THE
DEPARTMENTAL HEAD OR HIS REPRESENTATIVE.  THE COURT OF CLAIMS MADE A
LIKE ERROR IN THIS RESPECT.    FN4  THE GOVERNMENT POINTS OUT THAT IN
1933 AND 1934 THERE WERE 18 ARMY FINANCE OFFICERS LOCATED AT VARIOUS
PLACES IN THE UNITED STATES AND THAT ALL THE NOTATION ON THE COVER
COULD MEAN WAS THAT PAYMENT WAS TO BE MADE BY THE FINANCE OFFICER AT
FORT SAM HOUSTON, TEXAS, AND NOT BY A FINANCE OFFICER LOCATED
ELSEWHERE. 

MOREOVER, AN AFFIDAVIT BY THE CHIEF, RECEIPTS AND DISBURSEMENTS
DIVISION, OFFICE OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, APPEARING
AS AN APPENDIX TO THE GOVERNMENT'S BRIEF, STATES IN REGARD TO THE
NOTATION:  "THIS IS MERELY AN INDICATION TO THE CONSTRUCTING
QUARTERMASTER TO WHICH DISBURSING OFFICER THE CONSTRUCTING
QUARTERMASTER SHOULD CERTIFY VOUCHERS.  THE DESIGNATION OF THE FINANCE
OFFICER IS NOT A TERM OF THE CONTRACT.  IT IS PART OF AN OUTLINE
SHOWING THE PARTIES, THE AMOUNT, THE SITE OF THE WORK, THE SERVICES TO
BE PERFORMED, AND THE AUTHORIZED ACCOUNTS TO WHICH PAYMENTS WILL BE
CHARGED....  ON A CONSTRUCTION CONTRACT CONTAINING THE ABOVE TERMS THE
DISBURSING OFFICER WOULD NOT IN PRACTICE ALTER OR MODIFY AND WOULD NOT
BE AUTHORIZED TO ALTER OR MODIFY THE DECISION OF A CERTIFYING
CONSTRUCTION QUARTERMASTER AS TO THE BASIS ON WHICH PAYMENTS CAN BE
MADE UNDER THE CONTRACT WHEN SUCH BASIS, AS HERE, IS DEPENDENT UPON AN
INTERPRETATION OF THE SPECIFICATIONS OR HAS BEEN COVERED BY A DECISION
ON A DISPUTE BY THE CONTRACTING OFFICER.... ANOTHER REASON WHY THE
FINANCE OFFICER WOULD NOT UNDERTAKE TO DETERMINE THE QUESTION PRESENTED
IN THIS CASE IS THAT FINANCE OFFICERS AS A RULE HAVE NO EXPERIENCE WITH
CONSTRUCTION AND WOULD NOT BE QUALIFIED TO MAKE SUCH DECISIONS." 

FN5  SUCH AN ASSUMPTION IS FAULTY IN THAT NEARLY EVERY DISPUTE
BETWEEN A CONTRACTOR AND THE GOVERNMENT ULTIMATELY INVOLVES THE AMOUNT
OF PAYMENT UNDER THE CONTRACT.  HENCE, UNDER THE VIEW OF THE COURT OF
CLAIMS, ALL SUCH DISPUTES WOULD BE SUBJECT TO THE FINANCE OFFICER'S
REVIEW, THEREBY NULLIFYING ARTICLE 15 AS WELL AS OTHER PORTIONS OF THE
CONTRACT CONTEMPLATING FINAL DECISION BY THE CONTRACTING OFFICER OR THE
DEPARTMENTAL HEAD ON THESE MATTERS. 

FN6  THE BOARD OF LABOR REVIEW, ALTHOUGH A PART OF THE FEDERAL
EMERGENCY ADMINISTRATION OF PUBLIC WORKS, IS A DISTINCT ENTITY.  AND
ARTICLE 18(E) OF THE CONTRACTS MADE A CLEAR FUNCTIONAL DISTINCTION
BETWEEN THE TWO IN REGARD TO WAGE RATE INCREASES.  WE ARE NOT FREE TO
DISREGARD THAT DISTINCTION AND REWRITE THE PROCEDURE ESTABLISHED BY
ARTICLE 18(E). 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

THE COURT REQUIRES THIS CONTRACTOR TO PAY OUT OF HIS OWN POCKET THE
WAGE INCREASE WHICH HE WAS DIRECTED TO MAKE.  WHATEVER SUPPORT THAT
CONCLUSION MAY HAVE IN A LITERAL READING OF THE CONTRACT, IT IS SO
HARSH AND UNFAIR AS TO BE AVOIDED IF THE CONTRACT DOES NOT COMPEL THE
RESULT.  I DO NOT THINK IT DOES. 

THE CONTRACT SET A MINIMUM WAGE RATE OF $1 AN HOUR FOR BRICKLAYERS. 
BUT IT ALSO PROVIDED THAT IF THE "PREVAILING" HOURLY RATES UNDER
AGREEMENTS BETWEEN ORGANIZED LABOR AND EMPLOYERS ON APRIL 30, 1933,
WERE ABOVE THAT MINIMUM RATE, THE HIGHER RATE WOULD BECOME THE MINIMUM
AND BE PAID.  FN1 THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS
ON RECOMMENDATION OF THE BOARD OF LABOR REVIEW COULD CHANGE THE
CONTRACT RATE OF $1 AN HOUR; IT COULD ALSO CHANGE THE "PREVAILING"
HOURLY RATE.  IF IT DID EITHER, IT WOULD ESTABLISH A "DIFFERENT"
MINIMUM WAGE RATE WITHIN THE MEANING OF THE CONTRACT.  FN2  AND THE
CONTRACT PRICE WOULD BE ADJUSTED ACCORDINGLY. 

THE BOARD OF LABOR REVIEW, ACTING FOR THE FEDERAL EMERGENCY
ADMINISTRATION OF PUBLIC WORKS,  FN3 RULED THAT BRICKLAYERS ON ANOTHER
GOVERNMENT PROJECT AT SAN ANTONIO SHOULD BE PAID AT THE RATE OF $1.25
AN HOUR.  SAN ANTONIO, AS HELD BY THE COURT OF CLAIMS, IS IN THE SAME
VICINITY AS FORT SAM HOUSTON WHERE THE PRESENT PROJECTS WERE UNDER
WAY.  AND PLAINLY THE "PREVAILING" HOURLY RATE REFERS TO THE RATE WHICH
OBTAINS IN THE VICINITY. 

SO THE RESPONDENT PAID THE EXTRA WAGES UNDER A RULING WHICH, AS I
READ THE CONTRACT, WAS BINDING ON HIM.  IT SEEMS, THEREFORE, MANIFESTLY
UNFAIR TO HOLD THAT HE MUST PAY THE WAGE INCREASE OUT OF HIS OWN
POCKET. 

A CONTRACTOR CONFRONTED WITH AN ORDER OF THE QUARTERMASTER TO RAISE
THE WAGES OF HIS EMPLOYEES IS IN AN EXTREMELY DIFFICULT POSITION.  IF
HE DISOBEYS THE ORDER, HE RISKS A STRIKE AND INDUSTRIAL TURMOIL.  YET
THE COURT HOLDS THAT HE MUST TAKE THAT RISK OR ELSE PAY THE WAGE
INCREASE FROM HIS OWN POCKET.  SUCH A LITERAL READING OF THE CONTRACT
IS NOT A FAIR ONE.  AND IT IS NOT A NECESSARY ONE, AS I HAVE SHOWN. 
HENCE I WOULD CHOOSE A CONSTRUCTION WHICH AVOIDED THAT HARSH AND UNFAIR
RESULT AND DID NOT VICTIMIZE THE CONTRACTOR.  IF HE HAD NOT PROTESTED
THE ORDER OF THE QUARTERMASTER BUT HAD ACQUIESCED, I SUPPOSE NO ONE
WOULD SAY THAT THERE HAD BEEN A DISPUTE "CONCERNING QUESTIONS ARISING
UNDER" THE CONTRACT,  FN4  WHICH SHOULD HAVE BEEN OR COULD HAVE BEEN
APPEALED.  IT IS NOT DOUBTED THAT THEN THE CONTRACTOR WOULD BE ENTITLED
TO REIMBURSEMENT.  I SEE NO DIFFERENCE IN SUBSTANCE IF THE CONTRACTOR,
AFTER AN INITIAL PROTEST, ACQUIESCES IN THE RULING AND ACCEPTS THE NEW
"PREVAILING" RATE AND THUS AVOIDS DISSENSION WITH HIS EMPLOYEES. 

THERE IS JUSTICE IN WHAT THE COURT OF CLAIMS RULED AND I WOULD
SUSTAIN IT. 

FN1  "IN THE EVENT THAT THE PREVAILING HOURLY RATES PRESCRIBED UNDER
COLLECTIVE AGREEMENTS OR UNDERSTANDINGS BETWEEN ORGANIZED LABOR AND
EMPLOYERS ON APRIL 30, 1933, SHALL BE ABOVE THE MINIMUM RATES SPECIFIED
ABOVE, SUCH AGREED WAGE RATES SHALL APPLY:  PROVIDED, THAT SUCH AGREED
WAGE RATES SHALL BE EFFECTIVE FOR THE PERIOD OF THIS CONTRACT, BUT NOT
TO EXCEED 12 MONTHS FROM THE DATE OF THE CONTRACT." 

FN2  "THE MINIMUM WAGE RATES HEREIN ESTABLISHED SHALL BE SUBJECT TO
CHANGE BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS ON
RECOMMENDATION OF THE BOARD OF LABOR REVIEW.  IN EVENT THAT THE FEDERAL
EMERGENCY ADMINISTRATION OF PUBLIC WORKS ACTING ON SUCH RECOMMENDATION
ESTABLISHES DIFFERENT MINIMUM WAGE RATES, THE CONTRACT PRICE SHALL BE
ADJUSTED ACCORDINGLY ON THE BASIS OF ALL ACTUAL LABOR COSTS ON THE
PROJECT TO THE CONTRACTOR, WHETHER UNDER THIS CONTRACT OR ANY
SUBCONTRACT." 

FN3  THE SUGGESTION THAT THE WAGE INCREASE AT SAN ANTONIO WAS NOT
AUTHORIZED BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS IS
NOT WARRANTED BY THE RECORD.  THE BOARD OF LABOR REVIEW IS A PART OF
THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS.  IT DID NOT
"RECOMMEND" AN INCREASE AT SAN ANTONIO.  IT "FORMALLY RULED" THAT THE
BRICKLAYERS ON THAT PROJECT "SHOULD BE PAID AT THE RATE OF $1.25 PER
HOUR."  THE COURT OF CLAIMS TREATED THAT AS ACTION BY THE FEDERAL
EMERGENCY ADMINISTRATION OF PUBLIC WORKS.  THAT SEEMS TO ME TO BE THE
FAIR CONSTRUCTION; AND IT WAS SO TREATED BOTH BY THE QUARTERMASTER AND
THE CONTRACTOR. 

FN4  THE GOVERNMENT CONCEDES THAT THE QUARTERMASTER'S ADVICE TO
RESPONDENT THAT HE COULD FILE AN APPEAL WITH THE BOARD OF LABOR REVIEW
WAS ERRONEOUS.  IT POINTS OUT THAT THE BOARD OF LABOR REVIEW WAS
CHARGED WITH THE DECISION ONLY OF "LABOR ISSUES," WHICH EMBRACE
CONTROVERSIES BETWEEN EMPLOYERS AND EMPLOYEES.  THE CONFUSION EXISTING
IN THE MIND OF THE GOVERNMENT'S OWN REPRESENTATIVE EMPHASIZES THE TRAP
SET FOR THIS CONTRACTOR WHETHER HE FOLLOWED THE QUARTERMASTER'S
SUGGESTION OR ACQUIESCED IN HIS RULING. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE RUTLEDGE JOIN IN THIS
DISSENT. 
..END :










R.F.C. V. BEAVER COUNTY, 328 U.S. 204 


NO. 40.  ARGUED APRIL 30, 1946.  - DECIDED MAY 13, 1946.  - 350 PA. 520,
39 A.2D 713, AFFIRMED. 


BY SEC. 10 OF THE RECONSTRUCTION FINANCE CORPORATION ACT, CONGRESS
FORBADE STATES AND LOCAL GOVERNMENTS TO TAX PERSONAL PROPERTY OF THE
R.F.C. OR ITS SUBSIDIARIES, BUT PROVIDED THAT THEIR "REAL PROPERTY"
SHALL BE SUBJECT TO STATE AND LOCAL TAXATION "TO THE SAME EXTENT
ACCORDING TO ITS VALUE AS OTHER REAL PROPERTY IS TAXED."  AN R.F.C.
SUBSIDIARY ACQUIRED CERTAIN LAND IN PENNSYLVANIA, ERECTED BUILDINGS
THEREON, AND EQUIPPED THEM WITH MACHINERY AND ATTACHMENTS NECESSARY FOR
A MANUFACTURING PLANT.  MOST OF THE MACHINERY WAS HEAVY, NOT ATTACHED
TO THE BUILDINGS, AND WAS HELD IN PLACE BY ITS OWN WEIGHT.  OTHER
PORTIONS WERE ATTACHED BY EASILY REMOVABLE SCREWS AND BOLTS.  SOME OF
THE EQUIPMENT COULD BE MOVED FROM PLACE TO PLACE IN THE PLANT.  THE
PLANT WAS LEASED TO A MANUFACTURER OF WAR EQUIPMENT UNDER A CONTRACT
PROVIDING THAT THE MACHINERY SHOULD "REMAIN PERSONALTY NOTWITHSTANDING
THE FACT IT MAY BE AFFIXED OR ATTACHED TO REALTY."  THE SUPREME COURT
OF PENNSYLVANIA SUSTAINED THE IMPOSITION OF A TAX BY A COUNTY ON THE
MACHINERY, HOLDING THAT IT WAS REAL ESTATE UNDER A LONG-ESTABLISHED
RULE IN PENNSYLVANIA APPLYING TO ALL ESSENTIAL MACHINERY OF A
MANUFACTURING PLANT.  HELD: 

1.  THE TAX IS SUSTAINED.  P. 210. 

2.  THE INTERPRETATION OF PENNSYLVANIA'S TAX LAW BY ITS SUPREME COURT
IS BINDING ON THIS COURT.  P. 208. 

3.  PENNSYLVANIA'S DEFINITION OF "REAL PROPERTY" CANNOT GOVERN IF IT
CONFLICTS WITH THE SCOPE OF THAT TERM AS USED IN THE FEDERAL STATUTE. 
P. 208. 

4.  BY PERMITTING LOCAL TAXATION OF THE REAL PROPERTY, CONGRESS MADE
IT IMPOSSIBLE TO APPLY THE FEDERAL LEGISLATION WITH UNIFORM
CONSEQUENCES IN EACH STATE AND LOCALITY.  P. 209. 

5.  THE APPLICATION OF A LOCAL RULE AS TO WHAT IS "REAL PROPERTY" FOR
TAX PURPOSES WOULD NOT IMPAIR THE CONGRESSIONAL PROGRAM FOR THE
PRODUCTION OF WAR MATERIALS ANY MORE THAN THE ACTION OF CONGRESS IN
LEAVING THE FIXING OF RATES OF TAXATION TO LOCAL COMMUNITIES.  PP. 209,
210. 

6.  THE CONGRESSIONAL PURPOSE CAN BEST BE ACCOMPLISHED BY THE
APPLICATION OF SETTLED STATE RULES AS TO WHAT CONSTITUTES "REAL
PROPERTY," SO LONG AS THEY DO NOT EFFECT A DISCRIMINATION AGAINST THE
GOVERNMENT OR RUN COUNTER TO THE TERMS OF THE ACT.  P. 210. 

7.  ANY OTHER COURSE WOULD CREATE THE KIND OF CONFUSION AND RESULTING
HAMPERING OF LOCAL TAX MACHINERY WHICH CONGRESS DID NOT INTEND WHEN IT
SOUGHT TO INTEGRATE ITS PERMISSION TO TAX WITH LOCAL TAX ASSESSMENT AND
COLLECTION MACHINERY.  P. 210. 

RECONSTRUCTION FINANCE CORPORATION V. BEAVER COUNTY. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

APPEAL FROM A DECISION OF THE SUPREME COURT OF PENNSYLVANIA, 350 PA.
520, 39 A.2D 713, SUSTAINING A TAX ON MACHINERY OF A MANUFACTURING
PLANT OWNED BY THE DEFENSE PLANT CORPORATION, A SUBSIDIARY OF THE
R.F.C.  AFFIRMED, P. 210. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

BY SEC. 10 OF THE RECONSTRUCTION FINANCE CORPORATION ACT, AS AMENDED,
47 STAT. 5, 9; 55 STAT. 248, CONGRESS MADE IT CLEAR THAT IT DID NOT
PERMIT STATES AND LOCAL GOVERNMENTS TO IMPOSE TAXES OF ANY KIND ON THE
FRANCHISE, CAPITAL, RESERVES, SURPLUS, INCOME, LOANS, AND PERSONAL
PROPERTY OF THE RECONSTRUCTION FINANCE CORPORATION OR ANY OF ITS
SUBSIDIARY CORPORATIONS.  FN1 CONGRESS PROVIDED IN THE SAME SECTION
THAT "ANY REAL PROPERTY" OF THESE GOVERNMENTAL AGENCIES "SHALL BE
SUBJECT TO STATE, TERRITORIAL, COUNTY, MUNICIPAL, OR LOCAL TAXATION TO
THE SAME EXTENT ACCORDING TO ITS VALUE AS OTHER REAL PROPERTY IS
TAXED."  THE SUPREME COURT OF PENNSYLVANIA SUSTAINED THE IMPOSITION OF
A TAX ON CERTAIN MACHINERY OWNED AND USED IN BEAVER COUNTY,
PENNSYLVANIA, BY THE DEFENSE PLANT CORPORATION, AN RFC SUBSIDIARY.  FN2
THE QUESTION PRESENTED ON THIS APPEAL FROM THE SUPREME COURT JUDGMENT
IS WHETHER THE SUPREME COURT'S HOLDING THAT THIS MACHINERY IS "SUBJECT
TO" A LOCAL "REAL PROPERTY" TAX MEANS THAT THE PENNSYLVANIA TAX
STATUTE, 72 PURDON'S PENNSYLVANIA STAT. (1936) 5020-201, AS APPLIED,
CONFLICTS WITH SEC. 10 OF THE RECONSTRUCTION FINANCE CORPORATION ACT. 
THIS APPEAL, THUS, CHALLENGES THE VALIDITY OF A STATE STATUTE SUSTAINED
BY THE HIGHEST COURT OF THE STATE AND RAISES A SUBSTANTIAL FEDERAL
QUESTION.  WE HAVE JURISDICTION UNDER 28 U.S.C. SEC. 344(A) AND
APPELLEE'S MOTION TO DISMISS IS DENIED. 

IN 1941 DEFENSE PLANT CORPORATION  FN3  ACQUIRED CERTAIN LAND IN
BEAVER COUNTY.  IT ERECTED BUILDINGS ON THE PROPERTY AND EQUIPPED THEM
WITH MACHINERY AND ATTACHMENTS NECESSARY AND ESSENTIAL TO THE EXISTENCE
AND OPERATION OF A MANUFACTURING PLANT FOR AIRCRAFT PROPELLERS.  THE
PLANT, THUS FULLY EQUIPPED, WAS LEASED TO CURTISS-WRIGHT CORPORATION,
TO CARRY OUT ITS WAR CONTRACTS WITH THE GOVERNMENT FOR THE MANUFACTURE
OF PROPELLERS.  MOST OF THE MACHINERY WAS HEAVY, NOT ATTACHED TO THE
BUILDINGS, AND WAS HELD IN PLACE BY ITS OWN WEIGHT.  OTHER PORTIONS OF
THE MACHINERY WERE ATTACHED BY EASILY REMOVABLE SCREWS AND BOLTS, AND
SOME OF THE EQUIPMENT AND FIXTURES COULD BE MOVED FROM PLACE TO PLACE
WITHIN THE PLANT.  THE LEASE CONTRACT WITH CURTISS-WRIGHT AUTHORIZED
THE GOVERNMENT TO RECEIVE AND TO REPLACE EXISTING EQUIPMENT, AND PARTS
OF THE MACHINERY APPEAR TO HAVE BEEN FREQUENTLY INTERCHANGED AND
REPLACED AS THE CONVENIENCE OF THE GOVERNMENT REQUIRED.  THE LEASE
CONTRACT ALSO PROVIDED THAT THE MACHINERY SHOULD "REMAIN PERSONALTY
NOTWITHSTANDING THE FACT IT MAY BE AFFIXED OR ATTACHED TO REALTY." 

THE GOVERNMENT CONTENDS THAT UNDER THESE CIRCUMSTANCES THE MACHINERY
WAS NOT "REAL" BUT WAS "PERSONAL" PROPERTY, AND THAT THEREFORE ITS
TAXATION WAS FORBIDDEN BY CONGRESS.  THE "REAL PROPERTY" WHICH CONGRESS
MADE "SUBJECT" TO STATE TAXATION SHOULD IN THE GOVERNMENT'S VIEW BE
LIMITED TO "LAND AND BUILDINGS AND THOSE FIXTURES WHICH ARE SO
INTEGRATED WITH THE BUILDINGS AS TO BE UNIFORMLY, OR, AT MOST,
GENERALLY, REGARDED AS REAL PROPERTY."  "REAL PROPERTY," WITHIN THIS
DEFINITION, WOULD INCLUDE BUILDINGS AND "FIXTURES AS ARE ESSENTIAL TO A
BUILDING'S OPERATIONS" BUT WOULD NOT INCLUDE FIXTURES, MOVABLE
MACHINERY, OR EQUIPMENT, WHICH, THOUGH ESSENTIAL TO APPLICANT'S
OPERATIONS AS A PLANT, ARE NOT ESSENTIAL TO A BUILDING'S OPERATION AS A
BUILDING. 

THE COUNTY WOULD, FOR TAX PURPOSES, DEFINE REAL PROPERTY SO AS TO
TREAT MACHINERY, EQUIPMENT, FIXTURES, AND THE LAND ON WHICH A
MANUFACTURING ESTABLISHMENT IS LOCATED AS AN INTEGRAL REAL PROPERTY
UNIT.  THIS IS IN ACCORD WITH THE VIEW OF THE STATE'S SUPREME COURT
WHICH MADE THE FOLLOWING STATEMENT IN SUSTAINING THE TAX HERE INVOLVED:
"IT HAS LONG BEEN THE RULE IN PENNSYLVANIA THAT 'WHETHER FAST OR
LOOSE, THEREFORE, ALL THE MACHINERY OF A MANUFACTORY WHICH IS NECESSARY
TO CONSTITUTE IT, AND WITHOUT WHICH IT WOULD NOT BE A MANUFACTORY AT
ALL, MUST PASS FOR A PART OF THE FREEHOLD.'...  APPELLANT'S MACHINERY,
BEING AN INTEGRATED PART OF THE MANUFACTORY, AND SO, OF THE FREEHOLD,
WAS THEREFORE TAXABLE" UNDER PENNSYLVANIA'S DEFINITION OF REAL
PROPERTY.  THIS INTERPRETATION OF PENNSYLVANIA'S TAX LAW IS OF COURSE
BINDING ON US.  BUT PENNSYLVANIA'S DEFINITION OF "REAL PROPERTY" CANNOT
GOVERN IF IT CONFLICTS WITH THE SCOPE OF THAT TERM AS USED IN THE
FEDERAL STATUTE.  WHAT MEANING CONGRESS INTENDED IS A FEDERAL QUESTION
WHICH WE MUST DETERMINE. 

THE 1941 ACT DOES NOT ITSELF DEFINE REAL PROPERTY.  NOR DO THE
LEGISLATIVE REPORTS OR OTHER RELEVANT DATA PROVIDE ANY SINGLE DECISIVE
PIECE OF EVIDENCE AS TO CONGRESSIONAL INTENT.  FN4 OBVIOUSLY, IT COULD
HAVE INTENDED EITHER, AS THE GOVERNMENT ARGUES, THAT CONTENT BE GIVEN
TO THE TERM "REAL PROPERTY" AS A MATTER OF FEDERAL LAW, UNDER
AUTHORITATIVE DECISIONS OF THIS COURT, OR, AS THE COUNTY CONTENDS, THAT
THE MEANING OF THE TERM SHOULD BE ITS MEANING UNDER LOCAL TAX LAWS SO
LONG AS THOSE TAX LAWS WERE NOT DESIGNED TO DISCRIMINATE AGAINST THE
GOVERNMENT. 

IN SUPPORT OF ITS CONTENTION THAT A FEDERAL DEFINITION OF REAL
PROPERTY SHOULD BE APPLIED, THE GOVERNMENT RELIES ON THE GENERALLY
ACCEPTED PRINCIPLE THAT CONGRESS NORMALLY INTENDS THAT ITS LAWS SHALL
OPERATE UNIFORMLY THROUGHOUT THE NATION SO THAT THE FEDERAL PROGRAM
WILL REMAIN UNIMPAIRED.  JEROME V. UNITED STATES, 318 U.S. 101, 104;
COMMISSIONER V. TOWER, 327 U.S. 280.  BUT CONGRESS, IN PERMITTING LOCAL
TAXATION OF THE REAL PROPERTY, MADE IT IMPOSSIBLE TO APPLY THE LAW WITH
UNIFORM TAX CONSEQUENCES IN EACH STATE AND LOCALITY.  FOR THE SEVERAL
STATES, AND EVEN THE LOCALITIES WITHIN THEM, HAVE DIVERSE METHODS OF
ASSESSMENT, COLLECTION, AND REFUNDING.  TAX RATES VARY WIDELY.  TO ALL
OF THESE VARIABLE TAX CONSEQUENCES, CONGRESS HAS EXPRESSLY SUBJECTED
THE "REAL PROPERTY" OF THE DEFENSE PLANT CORPORATION.  IN VIEW OF THIS
EXPRESS PROVISION, THE NORMAL ASSUMPTION THAT CONGRESS INTENDS ITS LAW
TO HAVE THE SAME CONSEQUENCES THROUGHOUT THE NATION CANNOT BE MADE. 
FURTHERMORE, CONGRESS, HAD IT DESIRED COMPLETE NATIONWIDE UNIFORMITY AS
TO TAX CONSEQUENCES, COULD HAVE STIPULATED FOR FIXED PAYMENTS IN LIEU
OF TAXES, AS IT HAS DONE IN OTHER STATUTES.  FN5  NOR CAN WE SEE HOW
APPLICATION OF A LOCAL RULE GOVERNING WHAT IS "REAL PROPERTY" FOR TAX
PURPOSES WOULD IMPAIR THE CONGRESSIONAL PROGRAM FOR THE PRODUCTION OF
WAR MATERIALS ANY MORE THAN THE PROGRAM WOULD BE IMPAIRED BY THE ACTION
OF CONGRESS IN LEAVING THE FIXING OF RATES OF TAXATION TO LOCAL
COMMUNITIES. 

WE THINK THE CONGRESSIONAL PURPOSE CAN BEST BE ACCOMPLISHED BY
APPLICATION OF SETTLED STATE RULES AS TO WHAT CONSTITUTES "REAL
PROPERTY," SO LONG AS IT IS PLAIN, AS IT IS HERE, THAT THE STATE RULES
DO NOT EFFECT A DISCRIMINATION AGAINST THE GOVERNMENT, OR PATENTLY RUN
COUNTER TO THE TERMS OF THE ACT.  CONCEPTS OF REAL PROPERTY ARE DEEPLY
ROOTED IN STATE TRADITIONS, CUSTOMS, HABITS, AND LAWS.  LOCAL TAX
ADMINISTRATION IS GEARED TO THOSE CONCEPTS.  TO PERMIT THE STATES TO
TAX, AND YET TO REQUIRE THEM TO ALTER THEIR LONG-STANDING PRACTICE OF
ASSESSMENTS AND COLLECTIONS, WOULD CREATE THE KIND OF CONFUSION AND
RESULTANT HAMPERING OF LOCAL TAX MACHINERY WHICH WE ARE CERTAIN
CONGRESS DID NOT INTEND.  THE FACT THAT CONGRESS SUBJECTED DEFENSE
PLANT CORPORATION'S PROPERTIES TO LOCAL TAXES "TO THE SAME EXTENT
ACCORDING TO ITS VALUE AS OTHER REAL PROPERTY IS TAXED" INDICATED AN
INTENT TO INTEGRATE CONGRESSIONAL PERMISSION TO TAX WITH ESTABLISHED
LOCAL TAX ASSESSMENT AND COLLECTION MACHINERY.  AFFIRMED. 

FN1  AS TO THE CONSTITUTIONAL TAX IMMUNITY OF GOVERNMENTAL PROPERTIES
SEE UNITED STATES V. COUNTY OF ALLEGHENY, 322 U.S. 174.  SEE ALSO
PITTMAN V. HOME OWNERS' LOAN CORPORATION, 308 U.S. 21; MARICOPA COUNTY
V. VALLEY NATIONAL BANK, 318 U.S. 357. 

FN2  350 PA. 520, 39 A.2D 713. 

FN3  BY JOINT RESOLUTION OF CONGRESS, 59 STAT. 310, DEFENSE PLANT
CORPORATION WAS DISSOLVED AND ALL OF ITS FUNCTIONS, POWERS, DUTIES AND
LIABILITIES WERE TRANSFERRED TO RECONSTRUCTION FINANCE CORPORATION. 
PURSUANT TO THIS JOINT RESOLUTION THIS COURT GRANTED A MOTION TO
SUBSTITUTE RECONSTRUCTION FINANCE CORPORATION AS PARTY APPELLANT IN
SUCCESSION TO DEFENSE PLANT CORPORATION. 

FN4  THE 1941 AMENDMENTS TO SEC. 10 ADDED AMONG OTHERS THE FOLLOWING
PROVISION:  "...  SUCH EXEMPTIONS SHALL NOT BE CONSTRUED TO BE
APPLICABLE IN ANY STATE TO ANY BUILDINGS WHICH ARE CONSIDERED BY THE
LAWS OF SUCH STATE TO BE PERSONAL PROPERTY FOR TAXATION PURPOSES."  THE
GOVERNMENT CONTENDS THAT THIS INDICATES A CONGRESSIONAL INTENT TO
ESTABLISH A UNIFORM MEANING OF THE TERM "REAL PROPERTY" REGARDLESS OF
LOCAL RULES.  BUT THE ADDITION ALSO MIGHT BE TAKEN TO INDICATE THAT
CONGRESS UNDERSTOOD THAT WITHOUT IT UNDER THE LANGUAGE OF SEC. 10 THE
LOCAL RULE WOULD BE FOLLOWED WITH RESPECT TO TAXING BUILDINGS.  IN OUR
OPINION THE ADDITION OF THE ABOVE-QUOTED LANGUAGE DOES NOT TEND TO LEAD
TO ONE CONCLUSION OR THE OTHER. 

FN5  SEE, E.G., 42 U.S.C. 1546.  SEE ALSO LIST OF ACTS IN FEDERAL
CONTRIBUTIONS TO STATES AND LOCAL GOVERNMENTAL UNITS WITH RESPECT TO
FEDERALLY OWNED REAL ESTATE, HOUSE DOCUMENT NO. 216, PP. 39-41. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













HOWITT V. UNITED STATES, 328 U.S. 189 


NO. 354.  ARGUED JANUARY 4, 1946.  - DECIDED MAY 6, 1946.  - 150 F.2D
82, AFFIRMED. 


1.  TICKET SELLERS AND OTHER EMPLOYEES OF A RAILROAD WHO USE THE POWER
OF THEIR POSITIONS TO DISCRIMINATE AMONG PASSENGERS BY EXACTING SUMS IN
EXCESS OF ESTABLISHED RATES, APPROPRIATING THE EXCESS FOR THEMSELVES,
ARE PUNISHABLE UNDER SEC. 10(1) OF THE INTERSTATE COMMERCE ACT, EVEN
THOUGH THE RAILROAD IS NOT A PARTY TO THEIR CONDUCT.  PP. 190-193. 

2.  ONE OF THE PRIMARY PURPOSES OF THE INTERSTATE COMMERCE ACT IS TO
ESTABLISH UNIFORM TREATMENT OF USERS OF TRANSPORTATION FACILITIES.  P.
192. 

3.  SECTION 10 SHOWS THE CLEAREST POSSIBLE PURPOSE TO BAR RAILROAD
EMPLOYEES FROM OVERCHARGING FOR THEIR OWN OR FOR THE RAILROAD'S
ILLEGITIMATE GAIN.  P. 193. 

4.  THE ACT IMPOSES THE SAME DUTY ON TICKET SELLERS AND CLERKS OF
COMMON CARRIERS AS THAT IMPOSED ON RAILROAD OFFICERS OR OTHER
EMPLOYEES, TO TREAT ALL THE PUBLIC ALIKE AS TO TERMS AND CONDITIONS OF
TRANSPORTATION.  P. 193. 

HOWITT ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

PETITIONERS WERE INDICTED FOR VIOLATIONS OF THE INTERSTATE COMMERCE
ACT AND DEMURRED TO THE INDICTMENTS.  THE DISTRICT COURT OVERRULED THE
DEMURRERS, 55 F.SUPP.  372, AND THEY WERE CONVICTED.  THE CIRCUIT COURT
OF APPEALS AFFIRMED.  150 F.2D 82.  THIS COURT GRANTED CERTIORARI.  326
U.S. 706.  AFFIRMED, P. 193. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE WARTIME TRANSPORTATION SHORTAGE DURING THE WINTER OF 1943 MADE IT
EXCEEDINGLY DIFFICULT TO OBTAIN TICKETS FOR TRAINS GOING NORTH FROM
MIAMI, FLORIDA.  PETITIONERS ARE THREE TICKET SELLERS AND ONE DIAGRAM
CLERK WHO WERE EMPLOYED AT THAT TIME BY A RAILROAD AT MIAMI. 
PETITIONERS HOWITT, LEE, AND DEWHURST WERE CHARGED WITH, AND CONVICTED
FOR, CONSPIRACY TO VIOLATE THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
1 ET SEQ., IN THAT THEY CONSPIRED TO COLLECT AND RECEIVE UNJUST AND
UNREASONABLE CHARGES FOR PASSENGER TRANSPORTATION, IN VIOLATION OF SEC.
1(5)(A); TO RECEIVE AND COLLECT GREATER COMPENSATION FOR SERVICE FROM
CERTAIN PERSONS THAN THAT WHICH WOULD BE COLLECTED FROM OTHERS, IN
VIOLATION OF SEC. 2; TO PREFER PARTICULAR PERSONS TO THE DISADVANTAGE
OF OTHERS, IN VIOLATION OF SEC. 3(1); AND TO COLLECT AND RECEIVE
COMPENSATION IN EXCESS OF THAT FIXED BY TARIFF SCHEDULES, IN VIOLATION
OF SEC. 6(7).  THESE VIOLATIONS ARE MADE A CRIME BY SEC. 10.  FN1
PETITIONER O'ROURKE WAS CHARGED WITH AND CONVICTED FOR COMMITTING
SUBSTANTIVE OFFENSES OF THE SAME NATURE.  FN2  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  150 F.2D 82.  WE GRANTED CERTIORARI BECAUSE THIS
CASE RAISES IMPORTANT QUESTIONS CONCERNING THE SCOPE OF THE ACT. 

THE GOVERNMENT CHARGED THAT THERE WAS A WORKING AGREEMENT BETWEEN
PETITIONERS AND CERTAIN LOCAL HOTEL EMPLOYEES UNDER WHICH PERSONS
ANXIOUS TO PURCHASE RAILROAD TICKETS WOULD, IN ORDER TO OBTAIN THEM,
PAY AMOUNTS IN EXCESS OF PUBLISHED RATES EITHER TO PETITIONERS
DIRECTLY, OR TO THE HOTEL EMPLOYEES WHO IN TURN WOULD DIVIDE THE EXCESS
PAYMENTS BETWEEN THEMSELVES AND PETITIONERS.  FN3 THE RAILROAD PLAYED
NO PART IN THESE TRANSACTIONS.  THE GOVERNMENT PRODUCED A GREAT DEAL OF
EVIDENCE TO SUPPORT THESE CHARGES.  FN4  PETITIONERS OFFERED NO
TESTIMONY OR OTHER KIND OF EVIDENCE TO CONTRADICT THAT PRODUCED BY THE
GOVERNMENT.  THEIR ONLY CONTENTION WAS RAISED ON DEMURRER, MOTION FOR
DIRECTED VERDICT AND EXCEPTION TO THE CHARGE OF THE JURY.  THIS
CONTENTION, URGED ON SEVERAL DIFFERENT GROUNDS, WAS THAT THE INDICTMENT
FAILED TO CHARGE, AND THE EVIDENCE FAILED TO ESTABLISH A CRIME, SINCE
THE INTERSTATE COMMERCE ACT AND SEC. 10 IN PARTICULAR ARE PRIMARILY
AIMED AT RAILROADS AND DO NOT MAKE DISCRIMINATORY AND ILLEGAL CHARGES
BY RAILROAD EMPLOYEES FOR PASSENGER TRANSPORTATION CRIMINALLY
PUNISHABLE, UNLESS THE RAILROAD IS ITSELF A PARTY TO THE CONDUCT.  THIS
IS STILL THE BASIS OF PETITIONERS' ARGUMENTS. 

IT IS WELL ESTABLISHED THAT ONE OF THE PRIMARY AIMS OF THE INTERSTATE
COMMERCE ACT AND THE AMENDMENTS TO IT WAS TO ESTABLISH UNIFORM
TREATMENT OF USERS OF TRANSPORTATION FACILITIES.  SEE MITCHELL V.
UNITED STATES, 313 U.S. 80, 94, 95.  THE ACT AGAIN AND AGAIN EXPRESSLY
CONDEMNS ALL KINDS OF DISCRIMINATORY PRACTICES.  RAILROAD EMPLOYEES CAN
ACCOMPLISH INVIDIOUS TRANSPORTATION DISCRIMINATION, WHETHER OR NOT
THEIR CONDUCT IS APPROVED OR PARTICIPATED IN BY THEIR SUPERIORS.  NOT
ONLY DO THE ACT'S PROVISIONS AGAINST DISCRIMINATION AND SPECIAL FAVORS
FAIL TO EXEMPT EMPLOYEES SUCH AS PETITIONERS; BUT SEC. 10 STANDING
ALONE SHOWS THE CLEAREST POSSIBLE PURPOSE TO BAR ALL RAILROAD EMPLOYEES
FROM OVERCHARGING FOR THEIR OWN OR FOR THE RAILROAD'S ILLEGITIMATE
GAIN.  THE INTERSTATE COMMERCE ACT IMPOSES THE SAME DUTY ON TICKET
SELLERS AND CLERKS OF COMMON CARRIERS AS THAT IMPOSED ON RAILROAD
OFFICERS OR OTHER EMPLOYEES:  TO TREAT ALL THE PUBLIC ALIKE AS TO THE
TERMS AND CONDITIONS OF TRANSPORTATION.  RAILROAD ACCOMMODATIONS ARE
THUS NOT TO DEPEND UPON WHO WILL OR CAN PAY MORE BECAUSE OF GREATER
NEED OR A LONGER PURSE.  SEE UNITED STATES V. ESTES, 6 F.2D 902, 905. 
AFFIRMED. 

FN1  SECTION 10 READS IN PART AS FOLLOWS: 

"ANY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS PART, OR,
WHENEVER SUCH COMMON CARRIER IS A CORPORATION, ANY DIRECTOR OR OFFICER
THEREOF, OR ANY RECEIVER, TRUSTEE, LESSEE, AGENT, OR PERSON ACTING FOR
OR EMPLOYED BY SUCH CORPORATION, WHO, ALONE OR WITH ANY OTHER
CORPORATION, COMPANY, PERSON, OR PARTY, SHALL WILLFULLY DO OR CAUSE TO
BE DONE, OR SHALL WILLINGLY SUFFER OR PERMIT TO BE DONE, ANY ACT,
MATTER, OR THING IN THIS PART PROHIBITED OR DECLARED TO BE UNLAWFUL, OR
WHO SHALL AID OR ABET THEREIN, OR SHALL WILLFULLY OMIT OR FAIL TO DO
ANY ACT, MATTER, OR THING IN THIS PART REQUIRED TO BE DONE, OR SHALL
CAUSE OR WILLINGLY SUFFER OR PERMIT ANY ACT, MATTER, OR THING SO
DIRECTED OR REQUIRED BY THIS PART TO BE DONE NOT TO BE SO DONE, OR
SHALL AID OR ABET ANY SUCH OMISSION OR FAILURE, OR SHALL BE GUILTY OF
ANY INFRACTION OF THIS PART FOR WHICH NO PENALTY IS OTHERWISE PROVIDED,
OR WHO SHALL AID OR ABET THEREIN, SHALL BE DEEMED GUILTY OF A
MISDEMEANOR ..." 

FN2  ORDINARY VIOLATIONS OF THE ACT ARE UNDER SEC. 10 PUNISHED ONLY
BY IMPOSITION OF A FINE.  BUT A PROVISO IMPOSES A PRISON TERM IF THE
VIOLATION CONSISTS OF AN UNLAWFUL DISCRIMINATION.  PETITIONER O'ROURKE
CONTENDS THAT HE WAS CHARGED ONLY WITH VIOLATING SEC. 6(7) RATHER THAN
SEC. 2, WHICH IS THE UNLAWFUL DISCRIMINATION SECTION, AND THAT HE
THEREFORE COULD NOT BE IMPRISONED UNDER SEC. 10.  THIS CONTENTION IS
FRIVOLOUS.  THE O'ROURKE INDICTMENT CLEARLY AND EXPLICITLY ALSO CHARGES
A VIOLATION OF SEC. 2. 

FN3  AN AMICUS BRIEF FILED WITH US CONTAINS THE SUGGESTION THAT A
RATHER EXTENSIVE PARAGRAPH OF THE COURT'S CHARGE TO THE JURY, TO WHICH
EXCEPTION WAS NOTED, CONTAINS LANGUAGE SUSCEPTIBLE OF THE CONSTRUCTION
THAT ACCEPTANCE OF A "BONA FIDE TIP" MIGHT CONSTITUTE A VIOLATION OF
THE INTERSTATE COMMERCE ACT.  WE THINK THAT THAT LANGUAGE READ IN ITS
CONTEXT DOES NOT RELATE TO BONA FIDE TIPS BUT RATHER TO EXCESS CHARGES
WHICH THE PROSPECTIVE PASSENGER WAS FORCED TO PAY AND WHICH WERE MADE
TO LOOK LIKE TIPS.  MOREOVER, THIS PARAGRAPH OF THE CHARGE ALSO
CONTAINS INSTRUCTIONS THAT EMPLOYEES ACTING ALONE WITHOUT PARTICIPATION
BY THE RAILROAD MIGHT BE FOUND GUILTY OF VIOLATING THE ACT.  THE
EXCEPTION TO THE PARAGRAPH WAS A GENERAL ONE.  IN VIEW OF WHAT
PETITIONERS ARGUE HERE, WHAT THEY ARGUED ON DEMURRER, AND ON THE MOTION
FOR DIRECTED VERDICT, IT IS LIKELY THAT THE EXCEPTION WAS DIRECTED TO
THESE LAST-MENTIONED INSTRUCTIONS AND NOT TO THE LANGUAGE CHALLENGED BY
THE AMICUS BRIEF.  INDEED, PETITIONERS INTRODUCED NO EVIDENCE TO SHOW
THAT THEY WERE RECEIVING BONA FIDE TIPS, NOR DID THEY REQUEST ANY
CHARGE ON THE BASIS OF THIS THEORY.  IF PETITIONERS IN EXCEPTING TO THE
CHALLENGED PARAGRAPH OF THE CHARGE HAD THE "BONA FIDE" TIP QUESTION IN
MIND THEY SHOULD HAVE SPECIFICALLY POINTED THIS OUT TO THE TRIAL
COURT.  SEE ALLIS V. UNITED STATES, 155 U.S. 117, 121-123.  THE ISSUE
RAISED BY THE AMICUS BRIEF AS TO WHETHER THE ACT COVERS BONA FIDE TIPS
IS THEREFORE NOT BEFORE US. 

FN4  THE CIRCUIT COURT OF APPEALS SAID THAT THIS EVIDENCE "PROVED
BEYOND QUESTION THAT THE DEFENDANTS REPEATEDLY AND SYSTEMATICALLY TOOK
ADVANTAGE OF THE PREVAILING WAR-TIME CONGESTION IN TRANSPORTATION TO
EXACT FROM APPLICANTS FOR ACCOMMODATIONS MORE MONEY THAN THE REGULAR
RATE PRESCRIBED, AND APPROPRIATED THE DIFFERENCE TO THEMSELVES." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










TRADE COMM'N V. A.P.W. PAPER CO., 328 U.S. 193 


NO. 320.  ARGUED FEBRUARY 4, 1946.  - DECIDED MAY 6, 1946.  - 149 F.2D
424, AFFIRMED. 


PRIOR TO 1905 RESPONDENT USED "RED CROSS" AS A TRADE NAME AND
DISPLAYED THE RED CROSS SYMBOL ON ITS PRODUCTS.  SECTION 4 OF THE
AMERICAN RED CROSS ACT OF JANUARY 5, 1905, FORBADE "ANY PERSON OR
CORPORATION, OTHER THAN THE RED CROSS OF AMERICA, NOT NOW LAWFULLY
ENTITLED TO USE THE SIGN OF THE RED CROSS, HEREAFTER TO USE SUCH SIGN
...  FOR THE PURPOSES OF TRADE OR AS AN ADVERTISEMENT TO INDUCE THE
SALE OF ANY ARTICLE WHATSOEVER."  THAT SECTION WAS AMENDED IN 1910 SO
AS TO FORBID THE USE OF THE SYMBOL OR THE WORDS "RED CROSS" FOR THE
PURPOSE OF TRADE OR AS AN ADVERTISEMENT "TO INDUCE THE SALE OF ANY
ARTICLE" OR "FOR ANY BUSINESS OR CHARITABLE PURPOSE" BY ANY PERSON
OTHER THAN THE AMERICAN NATIONAL RED CROSS OR THE SANITARY AND HOSPITAL
AUTHORITIES OF THE ARMY AND NAVY, EXCEPT THAT "NO PERSON, CORPORATION,
OR ASSOCIATION THAT ACTUALLY USED  ...  THE SAID EMBLEM ...  OR WORDS
FOR ANY LAWFUL PURPOSE PRIOR TO" JANUARY 5, 1905 "SHALL BE DEEMED
FORBIDDEN BY THIS ACT TO CONTINUE THE USE THEREOF  ..."  THE GENEVA
CONVENTION OF 1929, RATIFIED BY THE UNITED STATES IN 1932, BOUND THE
CONTRACTING GOVERNMENTS TO TAKE OR RECOMMEND TO THEIR LEGISLATURES SUCH
MEASURES AS MIGHT BE NECESSARY "TO PREVENT THE USE BY PRIVATE PERSONS
...  OF THE EMBLEM OR THE NAME OF THE RED CROSS," FROM THE TIME SET IN
THE LEGISLATION AND NOT LATER THAN FIVE YEARS AFTER THE EFFECTIVE DATE
OF THE CONVENTION.  CONGRESS ENACTED NO LEGISLATION TO EFFECTUATE THIS
UNDERTAKING.  IN 1942 THE FEDERAL TRADE COMMISSION CHARGED PETITIONER
WITH A VIOLATION OF SEC. 5(A) OF THE FEDERAL TRADE COMMISSION ACT, AS
AMENDED BY THE ACT OF MARCH 21, 1938, WHICH MAKES UNLAWFUL "UNFAIR
METHODS OF COMPETITION IN COMMERCE, AND UNFAIR OR DECEPTIVE ACTS OR
PRACTICES IN COMMERCE."  AFTER APPROPRIATE ADMINISTRATIVE PROCEEDINGS,
THE COMMISSION FOUND THAT RESPONDENT'S USE OF THE WORDS AND SYMBOL WERE
MISLEADING TO THE PURCHASING PUBLIC AND ORDERED RESPONDENT TO CEASE AND
DESIST FROM USING THE WORDS "RED CROSS" TO DESCRIBE ITS PRODUCTS AND
FROM DISPLAYING THE SYMBOL ON THEM.  HELD: 

1.  UNDER THE FACTS OF THIS CASE, THE COMMISSION MAY NOT ABSOLUTELY
FORBID THE USE OF THE WORDS AND SYMBOL BY RESPONDENT.  PP. 198, 200,
204. 

(A)  THE 1910 ACT GRANTED, OR AT LEAST RECOGNIZED, THE RIGHT OF PRE
1905 USERS TO CONTINUE THEIR USE.  P. 200. 

(B)  THIS SPECIFIC RIGHT WAS NOT INTENDED TO BE SWEPT AWAY BY THE
1938 AMENDMENT TO THE FEDERAL TRADE COMMISSION ACT.  P. 202. 

(C)  SINCE CONGRESS HAS TAKEN NO ACTION TO EFFECTUATE THE UNDERTAKING
IN THE GENEVA CONVENTION OF 1929 TO PREVENT THEIR USE BY PRIVATE
PERSONS, IT DOES NOT IMPAIR THE RIGHTS OF GOOD FAITH PRE-1905 USERS
GRANTED OR RECOGNIZED BY THE 1910 ACT.  P. 203. 

2.  READING THE 1910 AND 1938 ACTS IN PARI MATERIA, THE GOOD FAITH
USE OF THE WORDS AND SYMBOLS BY PRE-1905 USERS IS PERMISSIBLE; BUT THE
COMMISSION MAY REQUIRE THE ADDITION OF LANGUAGE WHICH REMOVES ANY
MISLEADING INFERENCE THAT THE PRODUCTS ARE IN FACT SPONSORED, APPROVED,
OR IN ANY MANNER ASSOCIATED WITH THE AMERICAN NATIONAL RED CROSS.  P.
202. 

3.  THE FASHIONING OF THE ORDER WHICH SHOULD BE ENTERED IS ENTRUSTED
TO THE COMMISSION, WHICH HAS WIDE LATITUDE FOR JUDGMENT.  P. 203. 

FEDERAL TRADE COMMISSION V. A.P.W. PAPER CO., INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

THE FEDERAL TRADE COMMISSION ORDERED RESPONDENT TO CEASE AND DESIST
FROM USING THE WORDS "RED CROSS" TO DESCRIBE ITS PRODUCTS AND FROM
DISPLAYING THE GREEK RED CROSS ON THEM.  38 F.T.C. 1.  ON PETITION FOR
REVIEW, THE CIRCUIT COURT OF APPEALS REVERSED THE COMMISSION'S ORDER
AND REMANDED THE CASE TO THE COMMISSION FOR THE FORMULATION OF A NEW
ORDER WHICH, THOUGH NOT FORBIDDING THE USE OF THE WORDS AND SYMBOL,
MIGHT REQUIRE STATEMENTS WHICH WOULD AVOID ANY INFERENCE THAT THE GOODS
WERE SPONSORED OR APPROVED OR IN ANY WAY CONNECTED WITH THE AMERICAN
NATIONAL RED CROSS.  149 F.2D 424.  THIS COURT GRANTED CERTIORARI.  326
U.S. 704.  AFFIRMED, P. 204. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT MANUFACTURES AND SELLS TOILET TISSUES AND PAPER TOWELS IN
INTERSTATE COMMERCE.  ON EACH PACKAGE OR ROLL OF ONE BRAND ARE A GREEK
RED CROSS AND THE WORDS "RED CROSS".  RESPONDENT REGISTERED THE WORDS
"RED CROSS" AND THE RED CROSS SYMBOL AS A TRADE MARK; AND IT FEATURES
THEM IN ITS ADVERTISEMENTS AND ON ITS LETTERHEADS. 

BY SEC. 4 OF THE AMERICAN RED CROSS ACT OF JANUARY 5, 1905, 33 STAT.
600, 36 U.S.C. SEC. 4, IT WAS MADE UNLAWFUL "FOR ANY PERSON OR
CORPORATION, OTHER THAN THE RED CROSS OF AMERICA, NOT NOW LAWFULLY
ENTITLED TO USE THE SIGN OF THE RED CROSS, HEREAFTER TO USE SUCH SIGN
OR ANY INSIGNIA COLORED IN IMITATION THEREOF FOR THE PURPOSES OF TRADE
OR AS AN ADVERTISEMENT TO INDUCE THE SALE OF ANY ARTICLE WHATSOEVER." 
THAT SECTION WAS AMENDED BY THE ACT OF JUNE 23, 1910, 36 STAT. 604, 36
U.S.C. SEC. 4.  SEC. 4 OF THAT ACT MADE UNLAWFUL THE USE OF THE GREEK
RED CROSS ON A WHITE GROUND OR THE WORDS "RED CROSS" FOR THE PURPOSE OF
TRADE OR AS AN ADVERTISEMENT "TO INDUCE THE SALE OF ANY ARTICLE" OR
"FOR ANY BUSINESS OR CHARITABLE PURPOSE" BY ANY PERSON OTHER THAN THE
AMERICAN NATIONAL RED CROSS  FN1  OR ITS DULY AUTHORIZED EMPLOYEES AND
AGENTS OR THE SANITARY AND HOSPITAL AUTHORITIES OF THE ARMY AND NAVY. 
IT CONTAINED, HOWEVER, A PROVISO WHICH READS AS FOLLOWS:  "THAT NO
PERSON, CORPORATION, OR ASSOCIATION THAT ACTUALLY USED OR WHOSE
ASSIGNOR ACTUALLY USED THE SAID EMBLEM, SIGN, INSIGNIA, OR WORDS FOR
ANY LAWFUL PURPOSE PRIOR TO JANUARY FIFTH, NINETEEN HUNDRED AND FIVE,
SHALL BE DEEMED FORBIDDEN BY THIS ACT TO CONTINUE THE USE THEREOF FOR
THE SAME PURPOSE AND FOR THE SAME CLASS OF GOODS." 

PETITIONER'S USE OF THE TRADE NAME AND EMBLEM ANTEDATE JANUARY 5,
1905.  FN2  BUT IN 1942 THE FEDERAL TRADE COMMISSION CHARGED PETITIONER
WITH A VIOLATION OF SEC. 5(A) OF THE FEDERAL TRADE COMMISSION ACT, 38
STAT. 719, AS AMENDED 52 STAT. 111, 15 U.S.C. SEC. 45, WHICH MAKES
UNLAWFUL "UNFAIR METHODS OF COMPETITION IN COMMERCE, AND UNFAIR OR
DECEPTIVE ACTS OR PRACTICES IN COMMERCE." 

A HEARING WAS HAD, FINDINGS WERE MADE AND A CEASE AND DESIST ORDER
WAS ISSUED.  THE COMMISSION FOUND THAT "THE USE BY RESPONDENT OF THE
WORDS 'RED CROSS' AND OF THE MARK OF THE GREEK RED CROSS TO DESIGNATE
ITS PRODUCTS HAS THE TENDENCY AND CAPACITY TO MISLEAD AND DECEIVE A
SUBSTANTIAL PORTION OF THE PURCHASING PUBLIC, IN THAT SUCH NAME AND
MARK REPRESENT OR IMPLY THAT RESPONDENT'S PRODUCTS ARE SPONSORED,
ENDORSED, OR APPROVED BY THE RED CROSS; THAT THE RED CROSS IS
FINANCIALLY INTERESTED IN THE SALE OF THE PRODUCTS; THAT THE PRODUCTS
ARE USED BY THE RED CROSS; THAT THE PRODUCTS ARE MANUFACTURED IN
ACCORDANCE WITH SANITARY STANDARDS SET UP BY THE RED CROSS; OR THAT
THERE IS SOME OTHER CONNECTION BETWEEN THE PRODUCTS AND THE RED CROSS. 
NOT ONLY ARE THESE, IN THE OPINION OF THE COMMISSION, REASONABLE
INFERENCES TO BE DRAWN FROM THE USE OF THE NAME AND MARK, BUT THE
RECORD AFFIRMATIVELY SHOWS THAT THE NAME AND MARK ARE IN FACT SO
UNDERSTOOD AND INTERPRETED BY MANY MEMBERS OF THE PUBLIC."  THE
COMMISSION ALSO FOUND THAT STATEMENTS ON RESPONDENT'S PRODUCTS THAT
THEY ARE MADE BY RESPONDENT AND THAT THE NAME AND MARK ARE REGISTERED
"DO NOT SERVE TO CORRECT THE ERRONEOUS AND MISLEADING IMPRESSION
CREATED THROUGH THE USE OF THE TRADE NAME AND MARK."  THE COMMISSION
ENTERED AN ORDER WHICH, AMONG OTHER THINGS, FORBADE RESPONDENT FROM
USING THE WORDS "RED CROSS" TO DESCRIBE ITS PRODUCTS AND FROM
DISPLAYING THE GREEK RED CROSS ON THEM.  FN3  38 F.T.C. 1. 

ON A PETITION FOR REVIEW, THE CIRCUIT COURT OF APPEALS, BY A DIVIDED
VOTE, REVERSED THE ORDER OF THE COMMISSION.  149 F.2D 424.  IT HELD
THAT THE ORDER WENT BEYOND PERMISSIBLE LIMITS IN FORBIDDING ANY USE OF
THE WORDS AND THE MARK.  IT REMANDED THE CASE TO THE COMMISSION FOR THE
FORMULATION OF A NEW ORDER WHICH, THOUGH NOT FORBIDDING THE USE OF THE
WORDS AND THE SYMBOL, MIGHT REQUIRE STATEMENTS WHICH WOULD AVOID ANY
INFERENCE THAT THE GOODS WERE SPONSORED OR APPROVED OR IN ANY WAY
CONNECTED WITH THE AMERICAN NATIONAL RED CROSS.  THE CASE IS HERE ON
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
IMPORTANCE OF THE PROBLEM IN THE ADMINISTRATION OF THE FEDERAL TRADE
COMMISSION ACT. 

THERE IS NO SUGGESTION THAT THE PRE-1905 USE OF THE WORDS AND THE
SYMBOL WAS AN UNLAWFUL ONE WITHIN THE MEANING OF EITHER THE 1905 OR THE
1910 ACT.  NOR HAS THE COMMISSION FOUND THAT RESPONDENT HAS ENGAGED IN
ANY FRAUDULENT ACTIVITY OR MADE ANY UNTRUTHFUL STATEMENTS IN CONNECTION
WITH ITS USE OF THE WORDS AND THE SYMBOL.  THEREFORE THIS IS NOT A CASE
WHERE THE WORDS AND SYMBOLS WERE EITHER ADOPTED OR USED PURSUANT TO A
FRAUDULENT DESIGN, AIMED AT CREATING THE IMPRESSION THAT THESE PRODUCTS
WERE SPONSORED BY OR OTHERWISE CARRIED THE IMPRIMATUR OF THE RED
CROSS.  HENCE, HERE, AS IN JACOB SIEGEL CO. V. FEDERAL TRADE
COMMISSION, 327 U.S. 608, WE HAVE NO PROBLEM INVOLVING THE POWER OF THE
COMMISSION TO UPROOT A FRAUDULENT SCHEME IN ITS ENTIRETY.  BUT IT IS
ARGUED THAT HOWEVER LAWFUL THE EARLIER USE MAY HAVE BEEN, IT CANNOT
SURVIVE A FINDING BY THE COMMISSION THAT THE USE CONSTITUTES AN UNFAIR
OR DECEPTIVE ACT OR PRACTICE IN COMMERCE.  IT IS POINTED OUT THAT THE
1938 AMENDMENT TO THE FEDERAL TRADE COMMISSION ACT GAVE THE COMMISSION
POWER TO PROTECT CONSUMERS, AS WELL AS COMPETITORS, AGAINST UNFAIR OR
DECEPTIVE PRACTICES.  FN4  IT IS SAID THAT THERE ARE NO EXCEPTIONS TO
THAT BROAD POWER AND NONE SHOULD BE IMPLIED FROM THE RED CROSS ACT OF
1910.  THE LATTER ACT, IT IS SAID, CONFERS NO GENERAL RIGHTS BUT ONLY A
LIMITED IMMUNITY AND SHOULD NOT BE CONSTRUED AS EXEMPTING PRE-1905
USERS OF THE NAME AND EMBLEM FROM REGULATORY LEGISLATION OF GENERAL
APPLICATION WHICH CONGRESS MAY FROM TIME TO TIME ENACT FOR THE
PROTECTION OF THE PUBLIC.  IT IS ALSO ARGUED THAT BY THE GENEVA
CONVENTION OF 1929, WHICH WAS RATIFIED BY THE UNITED STATES  FN5  IN
1932, THE UNITED STATES AGREED TO PROHIBIT THE USE BY PRIVATE PERSONS
OF THE NAME AND THE SYMBOL AND THAT THE RED CROSS ACT AND THE FEDERAL
TRADE COMMISSION ACT SHOULD NOT BE CONSTRUED IN FAVOR OF CONDUCT WHICH
THIS NATION IS UNDER INTERNATIONAL OBLIGATION TO TERMINATE. 

WE AGREE, HOWEVER, WITH THE CIRCUIT COURT OF APPEALS.  IT IS CLEAR
THAT THE 1910 ACT GRANTED, OR AT LEAST RECOGNIZED, THE RIGHT OF PRE
1905 USERS TO CONTINUE THE USE OF THE WORDS AND THE SYMBOL.  FN6  THE
HOUSE REPORT STATED THAT THE ACT AS AMENDED "WILL PERMIT THE USE OF THE
SYMBOL BY  ... SUCH PERSONS, CORPORATIONS, AND ASSOCIATIONS AS ACTUALLY
USED THE EMBLEM PRIOR TO JANUARY 5, 1905, FOR THE PURPOSES FOR WHICH
THEY WERE SO ENTITLED TO USE IT AND FOR THE SAME CLASS OF GOODS.  THE
FULLEST PROTECTION IT IS POSSIBLE TO AFFORD IT BY CONGRESSIONAL
ENACTMENT AND AT THE SAME TIME AMPLY PROTECTS THE CONCERNS POSSESSING
VESTED PROPERTY RIGHTS IN THE EMBLEM."  H. REP. NO. 1256, 61ST CONG.,
2D SESS., PP. 2-3.  IT IS APPARENT FROM THE TERMS OF THE 1905 ACT AND
THE 1910 ACT  FN7  THAT CONGRESS WAS CONCERNED NOT ONLY WITH PROTECTING
THE RED CROSS AGAINST PRETENDERS BUT ALSO WITH PROTECTING THE PUBLIC
AGAINST THE FALSE IMPRESSION THAT GOODS PURCHASED WERE THE PRODUCTS OF
THE RED CROSS OR WERE SPONSORED BY IT.  CONGRESS, HOWEVER, DID NOT GO
THE FULL DISTANCE.  IT PRESERVED THE RIGHT OF EARLIER, GOOD FAITH USERS
TO CONTINUE THE USE OF THE WORDS AND THE SYMBOL.  IT MAY HAVE CONCLUDED
THAT THE MARK WHICH HAD BEEN ACQUIRED WAS A VALUABLE BUSINESS ASSET
WHICH SHOULD NOT BE DESTROYED.  OR IT MAY HAVE THOUGHT THAT THE EXTENT
AND MANNER OF THE USE BY THE ESTABLISHED CONCERNS WERE NOT LIKELY TO
INJURE THE PUBLIC.  FN8  BUT WHATEVER THE PURPOSE, THE FACT REMAINS
THAT THE GOOD FAITH USE OF THE MARK BY THE PRE-1905 USERS WAS INTENDED
TO BE PRESERVED UNIMPAIRED. 

WE CANNOT LIGHTLY INFER THAT THIS SPECIFIC RIGHT WAS INTENDED TO BE
SWEPT AWAY UNDER THE 1938 AMENDMENT TO THE FEDERAL TRADE COMMISSION
ACT.  REPEALS BY IMPLICATION ARE NOT FAVORED.  YET IF THE ORDER OF THE
COMMISSION STANDS, THE RIGHT GRANTED OR RECOGNIZED BY THE 1910 ACT
BECOMES A NULLITY.  FOR THE USE OF THE WORDS AND THE SYMBOL BY GOOD
FAITH PRE-1905 USERS BECOMES PER SE UNLAWFUL.  AS THE 1910 ACT, LIKE
THE FEDERAL TRADE COMMISSION ACT, WAS IN PART DIRECTED TOWARDS
PROTECTION OF THE PUBLIC AGAINST DECEPTIVE PRACTICES, WE THINK THE TWO
ACTS MUST BE READ IN PARI MATERIA.  THE PROBLEM IS TO RECONCILE THE
TWO, IF POSSIBLE, AND TO GIVE EFFECT TO EACH.  WE THINK THAT MAY BE
DONE BY RECOGNIZING THAT WHILE THE GOOD FAITH USE OF THE WORDS AND
SYMBOLS BY PRE-1905 USERS IS PERMISSIBLE, THE COMMISSION MAY REQUIRE
THE ADDITION OF LANGUAGE WHICH REMOVES ANY MISLEADING INFERENCE THAT
THE PRODUCTS ARE IN FACT SPONSORED, APPROVED, OR IN ANY MANNER
ASSOCIATED WITH THE AMERICAN NATIONAL RED CROSS. 

WE NEED COMMENT ONLY BRIEFLY ON THE GENEVA CONVENTION OF 1929, WHICH
WAS RATIFIED BY THE UNITED STATES IN 1932.  FN9  THE UNDERTAKING "TO
PREVENT THE USE BY PRIVATE PERSONS" OF THE WORDS OR SYMBOL IS A MATTER
FOR THE EXECUTIVE AND LEGISLATIVE DEPARTMENTS.  THE PROBLEM HAS BEEN
BEFORE THE CONGRESS IN RECENT YEARS.  FN10  NO ACTION HAS YET BEEN
TAKEN.  BUT WE CAN FIND IN THAT INACTION NO BASIS FOR CONCLUDING THAT
THE RIGHTS OF GOOD FAITH, PRE-1905 USERS GRANTED OR RECOGNIZED BY THE
1910 ACT ARE TODAY IN ANY WAY IMPAIRED.  INDEED, THE EXISTENCE OF THAT
RIGHT WAS RECOGNIZED AS GIVING RISE TO THE NEED FOR ADDITIONAL
LEGISLATION.  FN11  THAT ASSUMPTION CAN HARDLY BE RECONCILED WITH THE
CONCLUSION THAT COMPLETE RELIEF IS ALREADY ACCORDED UNDER THE FEDERAL
TRADE COMMISSION ACT. 

WE DO NOT UNDERTAKE TO PRESCRIBE THE ORDER WHICH THE COMMISSION
SHOULD ENTER.  THE FASHIONING OF THE REMEDY IS A MATTER ENTRUSTED TO
THE COMMISSION, WHICH HAS WIDE LATITUDE FOR JUDGMENT.  JACOB SIEGEL CO.
V. TRADE COMMISSION, SUPRA.  WE ONLY HOLD THAT UNDER THE FACTS OF THIS
CASE THE COMMISSION MAY NOT ABSOLUTELY FORBID THE USE OF THE WORDS AND
THE SYMBOL BY RESPONDENT.  AFFIRMED. 

FN1  THE RED CROSS ORGANIZATION HAD ITS ORIGIN IN A TREATY DRAFTED AT
THE GENEVA CONVENTION IN 1864 AND ACCEDED TO BY THE UNITED STATES IN
1882.  22 STAT. 940.  THE AMERICAN ASSOCIATION OF THE RED CROSS WAS
INCORPORATED IN 1881 UNDER THE LAWS OF THE DISTRICT OF COLUMBIA.  IT
WAS REINCORPORATED IN 1893 UNDER THE LAWS OF THE DISTRICT OF COLUMBIA
AS THE AMERICAN NATIONAL RED CROSS.  ON JUNE 6, 1900, IT WAS
INCORPORATED UNDER THE SAME NAME BY ACT OF CONGRESS (31 STAT. 277) AND
WAS REINCORPORATED JANUARY 5, 1905.  33 STAT. 599.  FROM THE TIME OF
ITS FIRST INCORPORATION IN 1881 DOWN TO THE PRESENT, IT HAS USED THE
WORDS "RED CROSS" AS A PART OF ITS NAME AND HAS ALSO USED THE EMBLEM
ADOPTED BY THE 1864 GENEVA CONVENTION, THE GREEK RED CROSS ON A WHITE
GROUND. 

FN2  TOILET TISSUES WERE MARKETED BY PETITIONER UNDER THAT TRADE NAME
AND EMBLEM SINCE 1897 AND PAPER TOWELS SINCE 1933.  THE TRADE-MARK WAS
FIRST REGISTERED IN THE PATENT OFFICE IN 1911 AND WAS EXTENDED TO COVER
PAPER TOWELS IN 1934. 

THE COMMISSION MADE NO FINDING AS TO WHETHER THE PAPER TOWELS WERE OF
THE SAME CLASS OF GOODS AS THE TOILET TISSUE WITHIN THE MEANING OF THE
PROVISO TO SEC. 4 OF THE 1910 ACT. 

FN3  IT ORDERED RESPONDENT TO CEASE AND DESIST FROM 

"1.  USING THE WORDS 'RED CROSS' OR ANY ABBREVIATION OR SIMULATION
THEREOF, EITHER ALONE OR IN COMBINATION OR CONNECTION WITH ANY OTHER
WORD OR WORDS, TO DESIGNATE, DESCRIBE, OR REFER TO RESPONDENT'S
PRODUCTS. 

"2.  USING OR DISPLAYING ON RESPONDENT'S PRODUCTS OR IN ANY
ADVERTISEMENT OF SUCH PRODUCTS THE MARK OF A GREEK RED CROSS, OR ANY
OTHER MARK, EMBLEM, SIGN, OR INSIGNIA SIMULATING OR RESEMBLING SUCH
CROSS. 

"3.  REPRESENTING IN ANY MANNER OR BY ANY MEANS, DIRECTLY OR BY
IMPLICATION, THAT RESPONDENT'S PRODUCTS ARE SPONSORED, ENDORSED, OR
APPROVED BY THE RED CROSS; THAT THE RED CROSS IS FINANCIALLY INTERESTED
IN THE SALE OF SAID PRODUCTS; THAT SAID PRODUCTS ARE USED BY THE RED
CROSS; THAT SAID PRODUCTS ARE MANUFACTURED IN ACCORDANCE WITH SANITARY
STANDARDS SET UP BY THE RED CROSS; OR THAT THERE IS ANY OTHER
CONNECTION BETWEEN SAID PRODUCTS AND THE RED CROSS." 

FN4  IN FEDERAL TRADE COMMISSION V. RALADAM CO., 283 U.S. 643, 647
648, THE COURT HAD RULED THAT, "THE PARAMOUNT AIM OF THE ACT IS THE
PROTECTION OF THE PUBLIC FROM THE EVILS LIKELY TO RESULT FROM THE
DESTRUCTION OF COMPETITION OR THE RESTRICTION OF IT IN A SUBSTANTIAL
DEGREE, AND THIS PRESUPPOSES THE EXISTENCE OF SOME SUBSTANTIAL
COMPETITION TO BE AFFECTED, SINCE THE PUBLIC IS NOT CONCERNED IN THE
MAINTENANCE OF COMPETITION WHICH ITSELF IS WITHOUT REAL SUBSTANCE." 
THE 1938 AMENDMENT TO SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT WAS
DESIGNED TO MAKE "THE CONSUMER, WHO MAY BE INJURED BY AN UNFAIR TRADE
PRACTICE, OF EQUAL CONCERN, BEFORE THE LAW, WITH THE MERCHANT OR
MANUFACTURER INJURED BY THE UNFAIR METHODS OF A DISHONEST COMPETITOR." 
H. REP. NO. 1613, 75TH CONG., 1ST SESS., P. 3.  AND SEE S. REP. NO.
221, 75TH CONG., 1ST SESS., P. 3.    FN5  47 STAT. 2074.  ARTICLE 28
PROVIDES IN PART (47 STAT. 2092):    "THE GOVERNMENTS OF THE HIGH
CONTRACTING PARTIES WHOSE LEGISLATION MAY NOT NOW BE ADEQUATE SHALL
TAKE OR SHALL RECOMMEND TO THEIR LEGISLATURES SUCH MEASURES AS MAY BE
NECESSARY AT ALL TIMES: 

"A)  TO PREVENT THE USE BY PRIVATE PERSONS OR BY SOCIETIES OTHER THAN
THOSE UPON WHICH THIS CONVENTION CONFERS THE RIGHT THERETO, OF THE
EMBLEM OR OF THE NAME OF THE RED CROSS OR GENEVA CROSS, AS WELL AS ANY
OTHER SIGN OR DESIGNATION CONSTITUTING AN IMITATION THEREOF, WHETHER
FOR COMMERCIAL OR OTHER PURPOSES; 

     .         .         .         .         . 

"THE PROHIBITION MENTIONED IN SUBPARAGRAPH A) OF THE USE OF SIGNS OR
DESIGNATIONS CONSTITUTING AN IMITATION OF THE EMBLEM OR DESIGNATION OF
THE RED CROSS OR GENEVA CROSS,  ...  SHALL TAKE EFFECT FROM THE TIME
SET IN EACH ACT OF LEGISLATION AND AT THE LATEST FIVE YEARS AFTER THIS
CONVENTION GOES INTO EFFECT.  AFTER SUCH GOING INTO EFFECT IT SHALL BE
UNLAWFUL TO TAKE OUT A TRADEMARK OR COMMERCIAL LABEL CONTRARY TO SUCH
PROHIBITIONS." 

FN6  THE MANAGER OF THE BILL WHICH BECAME THE 1905 ACT STATED ON THE
FLOOR OF THE HOUSE DURING THE DEBATE THAT IT WOULD NOT "INTERFERE WITH
ANY LAWFUL RIGHT NOW EXISTING."  39 CONG. REC. 406. 

JUDGE LEARNED HAND, SPEAKING OF THE 1910 ACT IN LOONEN V. DEITSCH,
189 F. 487, 492, STATED: "WHATEVER MAY HAVE BEEN THE POLICY BEFORE,
CONGRESS HAS NOW DEFINITELY DECLARED IN THE PROVISO OF THE LATTER ACT
THAT IT WOULD PERMIT SUCH MARKS IF THEY ANTEDATED 1905.  CONGRESS HAD
POWER SO TO LEGALIZE THE USE OF IT; THE QUESTION OF PUBLIC POLICY WAS
FOR IT AND FOR IT ALONE, AND IT IS NOW FINALLY CLOSED." 

FN7  AS WE HAVE ALREADY NOTED, THE 1905 ACT MADE IT UNLAWFUL "FOR ANY
PERSON OR CORPORATION, OTHER THAN THE RED CROSS OF AMERICA, NOT NOW
LAWFULLY ENTITLED TO USE THE SIGN OF THE RED CROSS, HEREAFTER TO USE
SUCH SIGN OR ANY INSIGNIA COLORED IN IMITATION THEREOF FOR THE PURPOSES
OF TRADE OR AS AN ADVERTISEMENT TO INDUCE THE SALE OF ANY ARTICLE
WHATSOEVER." 

AND SEC. 4 OF THE 1910 ACT, WHICH WE HAVE ALREADY SUMMARIZED,
PROVIDED: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, CORPORATION, OR ASSOCIATION
OTHER THAN THE AMERICAN NATIONAL RED CROSS AND ITS DULY AUTHORIZED
EMPLOYEES AND AGENTS AND THE ARMY AND NAVY SANITARY AND HOSPITAL
AUTHORITIES OF THE UNITED STATES FOR THE PURPOSE OF TRADE OR AS AN
ADVERTISEMENT TO INDUCE THE SALE OF ANY ARTICLE WHATSOEVER OR FOR ANY
BUSINESS OR CHARITABLE PURPOSE TO USE WITHIN THE TERRITORY OF THE
UNITED STATES OF AMERICA AND ITS EXTERIOR POSSESSIONS THE EMBLEM OF THE
GREEK RED CROSS ON A WHITE GROUND, OR ANY SIGN OR INSIGNIA MADE OR
COLORED IN IMITATION THEREOF, OR OF THE WORDS 'RED CROSS' OR 'GENEVA
CROSS' OR ANY COMBINATION OF THESE WORDS:  PROVIDED, HOWEVER, THAT NO
PERSON, CORPORATION, OR ASSOCIATION THAT ACTUALLY USED OR WHOSE
ASSIGNOR ACTUALLY USED THE SAID EMBLEM, SIGN, INSIGNIA, OR WORDS FOR
ANY LAWFUL PURPOSE PRIOR TO JANUARY FIFTH, NINETEEN HUNDRED AND FIVE,
SHALL BE DEEMED FORBIDDEN BY THIS ACT TO CONTINUE THE USE THEREOF FOR
THE SAME PURPOSE AND FOR THE SAME CLASS OF GOODS." 

FN8  JUDGE LEARNED HAND IN LOONEN V. DEITSCH, SUPRA, NOTE 6, P. 489,
STATED: 

"DOES THE MARK ACTUALLY MEAN THAT THE SOCIETY IS IN ANY WAY CONCERNED
WITH THE MANUFACTURE OF THE GOODS?  I THINK NOT.  WE HAVE BECOME
FAMILIAR WITH IT IN THE PAST FOR MANY OTHER USES THAN THAT OF THE
SOCIETY, THOUGH HAPPILY SUCH USES WILL NOW SLOWLY DISAPPEAR.  IT HAD
BEEN USED ON HOSPITAL AMBULANCES, UPON MEDICAMENTS, UPON DOCTORS' MOTOR
CARS, UPON BARBER SHOPS, UPON LAUNDRIES, AND FOR MILITARY FIELD SERVICE
NOT CONNECTED WITH THE RED CROSS SOCIETY.  IN SHORT, UNTIL THE
LEGISLATION OF 1905(ACT JAN. 5, 1905, C. 23, 33 STAT. 599(U.S. COMP.
ST. SUPP. 1909, P. 1038)), IT HAD BEEN QUITE INSTINCTIVELY ADOPTED FOR
MANY USES WHICH WERE CONGRUOUS WITH THE CHIEF OBJECTS OF THE SOCIETY,
BUT WHICH DID NOT INDICATE THAT THE SOCIETY HAD ANYTHING TO DO WITH
THEM, OR CERTAINLY WITH THE FREQUENCY OF THE USE CEASED TO DO SO.
FINALLY, CONGRESS HAS CLEARLY RECOGNIZED THAT FACT BY PERMITTING ALL
THOSE WHO PRIOR TO 1905 HAD USED THE MARK LAWFULLY, TO CONTINUE." 

FN9  SEE NOTE 5, SUPRA. 

FN10  IN THE 77TH CONGRESS A BILL TO ELIMINATE OVER A PERIOD OF YEARS
THE EXEMPTION GIVEN TO PRE-1905 USERS WAS FAVORABLY REPORTED BY THE
COMMITTEE ON FOREIGN AFFAIRS OF THE HOUSE.  H. REP. 2387, 77TH CONG.,
2D SESS.  THIS PROPOSED LEGISLATION WAS DESIGNED TO DISCHARGE THE
OBLIGATION OF THE UNITED STATES UNDER THE GENEVA CONVENTION OF 1929. 
ID., PP. 1, 2, 4. 

IN THE 78TH CONGRESS A BILL PASSED THE SENATE WITH SIMILAR
PROVISIONS.  90 CONG. REC. 398, 401, 3656.  IT WAS REPORTED FAVORABLY,
WITH AMENDMENTS, BY THE COMMITTEE ON FOREIGN AFFAIRS OF THE HOUSE.  H.
REP. NO. 2054, 78TH CONG., 2D SESS.  THIS PROPOSED LEGISLATION WAS
LIKEWISE DESIGNED TO DISCHARGE THE OBLIGATION OF THE UNITED STATES
UNDER THE GENEVA CONVENTION OF 1929.  ID., PP. 4-6.  AND SEE 90 CONG.
REC. 399. 

FN11  SEE H. REP. NO. 2387, SUPRA, NOTE 10, PP. 2, 3; H. REP. NO.
2054, SUPRA, NOTE 10, PP. 4-6.  IN THE LATTER REPORT IT WAS, INDEED,
RECOGNIZED "THAT UNDER EXISTING LAW, THERE ARE LEGAL USES OF THE SYMBOL
BY COMMERCIAL USERS."  P. 4. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












SCHULTE CO. V. GANGI, 328 U.S. 108 


NO. 517.  ARGUED MARCH 1, 1946.  - DECIDED APRIL 29, 1946.  - 150 F.2D
694, AFFIRMED. 


1.  AN EMPLOYER CAN NOT BE RELIEVED FROM LIABILITY FOR LIQUIDATED
DAMAGES UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT BY A
COMPROMISE OR SETTLEMENT OF A BONA FIDE DISPUTE AS TO THE COVERAGE OF
THE ACT.  P. 114. 

2.  THE PURPOSE OF THE FAIR LABOR STANDARDS ACT - TO SECURE A
SUBSISTENCE WAGE FOR LOW-INCOME WORKERS - REQUIRES THAT NEITHER WAGES
NOR THE DAMAGES FOR WITHHOLDING THEM BE REDUCIBLE BY COMPROMISE OF
CONTROVERSIES OVER COVERAGE.  PP. 116-118, 121. 

3.  MAINTENANCE EMPLOYEES OF A BUILDING THE OCCUPANTS OF WHICH
RECEIVE, WORK ON AND RETURN IN INTRASTATE COMMERCE GOODS BELONGING TO
NON-OCCUPANTS WHO SUBSEQUENTLY IN THE REGULAR COURSE OF THEIR BUSINESS
SHIP SUBSTANTIAL PROPORTIONS OF THE OCCUPANTS' PRODUCTS TO OTHER
STATES, HELD COVERED BY THE FAIR LABOR STANDARDS ACT.  P. 120. 

4.  THE BURDEN OF PROOF THAT RESTS UPON EMPLOYEES TO ESTABLISH THAT
THEY ARE ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE, WITHIN THE
COVERAGE OF THE FAIR LABOR STANDARDS ACT, MUST BE MET BY EVIDENCE IN
THE RECORD.  P. 120. 

5.  IN DETERMINING WHETHER EMPLOYEES ARE ENGAGED IN THE "PRODUCTION
OF GOODS FOR COMMERCE," WITHIN THE MEANING OF THE FAIR LABOR STANDARDS
ACT, IT IS SUFFICIENT THAT, FROM THE CIRCUMSTANCES OF PRODUCTION, A
TRIER OF FACT MAY REASONABLY INFER THAT THE EMPLOYER HAS REASONABLE
GROUNDS TO ANTICIPATE THAT HIS PRODUCTS WILL MOVE IN INTERSTATE
COMMERCE.  WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564,
DISTINGUISHED.  PP. 119, 121. 

6.  MERE SEPARATION OF THE ECONOMIC PROCESSES OF PRODUCTION FOR
COMMERCE BETWEEN DIFFERENT INDUSTRIAL UNITS, EVEN WITHOUT ANY DEGREE OF
COMMON OWNERSHIP, DOES NOT DESTROY THE CONTINUITY OF PRODUCTION FOR
COMMERCE.  P. 121. 

D.A. SCHULTE, INC. V. GANGI ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

RESPONDENT, SUING ON BEHALF OF HIMSELF AND OTHER EMPLOYEES SIMILARLY
SITUATED, BROUGHT SUIT AGAINST HIS EMPLOYER TO RECOVER LIQUIDATED
DAMAGES UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT.  THE DISTRICT
COURT HELD THAT THE LIABILITY OF THE EMPLOYER HAD BEEN VALIDLY
RELEASED.  53 F.SUPP.  844.  THE CIRCUIT COURT OF APPEALS REVERSED. 
150 F.2D 694.  THIS COURT GRANTED CERTIORARI.  326 U.S. 712.  AFFIRMED,
P. 121. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE ISSUES BROUGHT TO THIS COURT BY THIS PROCEEDING ARISE FROM A
CONTROVERSY CONCERNING OVERTIME PAY AND LIQUIDATED DAMAGES UNDER THE
FAIR LABOR STANDARDS ACT OF 1938.  UNDER SEC. 7(A), THE EMPLOYER IS
REQUIRED TO PAY FOR EXCESS HOURS OF WORK NOT LESS THAN ONE AND ONE-HALF
TIMES THE REGULAR RATE.  FN1  AN EMPLOYER WHO VIOLATES THIS SUBSECTION
IS LIABLE TO HIS INJURED EMPLOYEES IN THE AMOUNT DUE AND UNPAID AND IN
AN ADDITIONAL EQUAL AMOUNT AS LIQUIDATED DAMAGES.  FN2 

THE PRIMARY ISSUE PRESENTED BY THE PETITION FOR CERTIORARI IS WHETHER
THE FAIR LABOR STANDARDS ACT PRECLUDES A BONA FIDE SETTLEMENT OF A BONA
FIDE DISPUTE OVER THE COVERAGE OF THE ACT ON A CLAIM FOR OVERTIME
COMPENSATION AND LIQUIDATED DAMAGES WHERE THE EMPLOYEES RECEIVE THE
OVERTIME COMPENSATION IN FULL.  AS THE CONCLUSION OF THE CIRCUIT COURT
OF APPEALS ON THIS ISSUE IN THIS CASE  FN3  CONFLICTS WITH THAT OF THE
FOURTH CIRCUIT IN GUESS V. MONTAGUE, 140 F.2D 500, 504-505, AND THE
FIFTH CIRCUIT IN ATLANTIC CO. V. BROUGHTON, 146 F.2D 480, WE GRANTED
CERTIORARI IN ORDER TO DETERMINE THE ISSUE WHICH WAS NOT PASSED UPON IN
BROOKLYN BANK V. O'NEIL, 324 U.S. 697, 702-704, 708, NOTE 21.  326 U.S.
712.  FN4 

RESPONDENTS WERE EMPLOYED BY PETITIONER AS BUILDING SERVICE AND
MAINTENANCE EMPLOYEES IN ITS TWENTY-THREE STORY LOFT BUILDING IN THE
GARMENT MANUFACTURING DISTRICT OF NEW YORK CITY DURING THE PERIOD
OCTOBER 24, 1938, TO FEBRUARY 5, 1942.  EACH PUT IN VARYING HOURS OF
OVERTIME FOR WHICH NO PAYMENT HAD BEEN MADE PRIOR TO OUR DECISION IN
KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, ON JUNE 1, 1942, BY WHICH
SERVICE AND MAINTENANCE EMPLOYEES IN BUILDINGS TENANTED BY
MANUFACTURERS PRODUCING FOR INTERSTATE COMMERCE WERE HELD TO BE COVERED
BY THE WAGEHOUR ACT.  SHORTLY THEREAFTER RESPONDENTS MADE CLAIMS FOR
OVERTIME PAY AND LIQUIDATED DAMAGES WHICH WERE REFUSED BY PETITIONER ON
THE GROUND, ADMITTEDLY TRUE, THAT ITS TENANTS DID NOT SHIP THE PRODUCTS
THEY PRODUCED DIRECTLY IN INTERSTATE COMMERCE BUT DELIVERED THEM TO
DISTRIBUTORS OR PRODUCERS IN THE SAME STATE WHO THEREAFTER USED THE
PRODUCTS OF PETITIONER'S TENANTS FOR INTERSTATE COMMERCE OR THE
PRODUCTION OF GOODS FOR THAT COMMERCE.  UNDER THREAT OF SUIT,
PETITIONER PAID THE OVERTIME COMPENSATION AND OBTAINED A RELEASE UNDER
SEAL SIGNED BY THE SEVERAL RESPONDENTS.  IT IS SET OUT BELOW.  FN5
PETITIONER COMPUTED THE AMOUNT OF OVERTIME AND RESPONDENTS RAISE NO
QUESTION AS TO ITS ACCURACY.  RESPONDENTS THEN BROUGHT THIS SUIT IN THE
DISTRICT COURT TO RECOVER LIQUIDATED DAMAGES DUE THEM UNDER SEC. 16(B)
OF THE ACT.  IT WAS STIPULATED THAT THE LIQUIDATED DAMAGES, DUE IF
RECOVERABLE, WERE CERTAIN STATED AMOUNTS WHICH CORRESPONDED TO THE
OVERTIME COMPENSATION ALREADY PAID.  PETITIONER DENIED THAT IT WAS
COVERED BY THE ACT AND PLEADED AFFIRMATIVELY, AS A DEFENSE, THE
RELEASES WHICH IT ASSERTED WERE OBTAINED IN SETTLEMENT OF A BONA FIDE
DISPUTE AS TO COVERAGE. 

THE DISTRICT COURT HELD THAT THERE WAS A GOOD ACCORD AND SATISFACTION
AND RELEASE OF ALL CLAIMS FOR LIQUIDATED DAMAGES BECAUSE THERE WAS A
BONA FIDE SETTLEMENT OF A BONA FIDE DISPUTE.  IT SPECIFICALLY REFUSED
TO PASS UPON THE DEFENSE THAT THE ACT DID NOT COVER THE RESPONDENTS
EXCEPT TO INDICATE THAT IT PRESENTED A DIFFICULT ISSUE.  53 F.SUPP. 
844.  THIS JUDGMENT WAS ENTERED PRIOR TO OUR DECISION IN THE O'NEIL
CASE.  THE CIRCUIT COURT OF APPEALS REVERSED.  THAT COURT THOUGHT THE
O'NEIL CASE SUBSTANTIALLY DETERMINED THAT A BONA FIDE COMPROMISE OF A
DISPUTE AS TO COVERAGE WAS INVALID.  ITS CONCLUSION AS TO THE
INVALIDITY OF SUCH COMPROMISES WAS IN ACCORD WITH ITS PRIOR COMMENTS
THAT THE LIABILITY OF UNPAID OVERTIME COMPENSATION AND LIQUIDATED
DAMAGES IS SINGLE AND "IS NOT DISCHARGED IN TOTO BY PAYING ONE-HALF OF
IT."  RIGOPOULOS V. KERVAN, 140 F.2D 506, 507; FLEMING V. POST, 146
F.2D 441, 443. 

PETITIONER URGES THAT THE THEORY OF A SINGLE LIABILITY OF THE
EMPLOYER TO THE EMPLOYEE UNDER SEC. 16(B) IS UNSOUND AND THAT THIS
COURT SHOULD NOT FIND A LACK OF POWER IN EMPLOYERS AND EMPLOYEES TO
SETTLE AMICABLY CONTROVERSIES OVER COVERAGE AND AMOUNTS DUE FOR
VIOLATIONS OF THE UNPAID MINIMUM WAGE OR UNPAID OVERTIME COMPENSATION
UNDER SECS. 6 AND 7 OF THE ACT.  PETITIONER REASONS ON ITS FIRST
CONTENTION THAT THERE WERE TWO CLAIMS - ONE FOR OVERTIME COMPENSATION
AND THE OTHER FOR AN EQUAL AMOUNT AS LIQUIDATED DAMAGES - AND THAT THE
PAYMENT FOR THE FIRST IN FULL WAS SUFFICIENT CONSIDERATION FOR THE
RELEASE OF THE SECOND.  ON ITS SECOND CONTENTION, PETITIONER ADVANCES
THE ARGUMENT THAT SINCE THE CONGRESSIONAL INTENT TO FORBID COMPROMISES
OF SUCH CLAIMS IS NOT CLEAR, SUCH A SHARP DEPARTURE FROM THE
TRADITIONAL POLICY OF ENCOURAGING THE ADJUSTMENT INSTEAD OF THE
LITIGATION OF DISPUTES CANNOT BE INFERRED FROM THE PURPOSES OF THE
ACT.  PETITIONER POINTS OUT THAT A SEAMAN MAY RELEASE HIS CLAIMS UNDER
STATUTES ENACTED FOR HIS PROTECTION IN A BONA FIDE SETTLEMENT  FN6  AND
THAT SETTLEMENT OF ACCRUED CLAIMS IS PERMITTED UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  FN7  PETITIONER ADDS THAT IN DOUBTFUL CASES
IT MAY BE ADVANTAGEOUS TO THE EMPLOYEE TO COMPROMISE, THAT TO FORCE
LITIGATION MAY DISRUPT EMPLOYER-EMPLOYEE RELATIONSHIPS, AND THAT
NUMEROUS COMPROMISE SETTLEMENTS HAVE BEEN MADE FOR LESS THAN FULL
LIABILITY.  FN8 

WE DO NOT FIND IT NECESSARY TO DETERMINE WHETHER THE LIABILITY FOR
UNPAID WAGES AND LIQUIDATED DAMAGES THAT SEC. 16(B) CREATES IS UNITARY
OR DIVISIBLE.  FN9  WHETHER THE LIABILITY IS SINGLE OR DUAL, WE THINK
THE REMEDY OF LIQUIDATED DAMAGES CANNOT BE BARGAINED AWAY BY BONA FIDE
SETTLEMENTS OF DISPUTES OVER COVERAGE.  NOR DO WE NEED TO CONSIDER HERE
THE POSSIBILITY OF COMPROMISES IN OTHER SITUATIONS WHICH MAY ARISE,
SUCH AS A DISPUTE OVER THE NUMBER OF HOURS WORKED OR THE REGULAR RATE
OF EMPLOYMENT.  FN10 

THE REASONS WHICH LEAD US TO CONCLUDE THAT COMPROMISES OF REAL
DISPUTES OVER COVERAGE WHICH DO NOT REQUIRE THE PAYMENT IN FULL OF
UNPAID WAGES AND LIQUIDATED DAMAGES DO NOT DIFFER GREATLY FROM THOSE
WHICH LED US TO CONDEMN THE WAIVERS OF LIQUIDATED DAMAGES IN THE O'NEIL
CASE.  WE SAID THERE, 324 U.S. AT 708: 

"THE SAME POLICY WHICH FORBIDS WAIVER OF THE STATUTORY MINIMUM AS
NECESSARY TO THE FREE FLOW OF COMMERCE REQUIRES THAT REPARATIONS TO
RESTORE DAMAGE DONE BY SUCH FAILURE TO PAY ON TIME MUST BE MADE TO
ACCOMPLISH CONGRESSIONAL PURPOSES.  MOREOVER, THE SAME POLICY WHICH
FORBIDS EMPLOYEE WAIVER OF THE MINIMUM STATUTORY RATE BECAUSE OF
INEQUALITY OF BARGAINING POWER, PROHIBITS THESE SAME EMPLOYEES FROM
BARGAINING WITH THEIR EMPLOYER IN DETERMINING WHETHER SO LITTLE DAMAGE
WAS SUFFERED THAT WAIVER OF LIQUIDATED DAMAGE IS CALLED FOR." 

IN A BONA FIDE ADJUSTMENT ON COVERAGE, THERE ARE THE SAME THREATS TO
THE PUBLIC PURPOSES OF THE WAGE-HOUR ACT THAT EXIST WHEN THE LIQUIDATED
DAMAGES ARE WAIVED.  THE DAMAGES ARE AT THE SAME TIME COMPENSATORY AND
AN AID TO ENFORCEMENT.  IT IS QUITE TRUE THAT THE LIQUIDATED DAMAGE
PROVISION ACTS HARSHLY UPON EMPLOYERS WHOSE VIOLATIONS ARE NOT
DELIBERATE BUT ARISE FROM UNCERTAINTIES OR MISTAKES AS TO COVERAGE. 
SINCE THE POSSIBILITY OF VIOLATIONS INHERES IN EVERY INSTANCE OF
EMPLOYMENT THAT IS COVERED BY THE ACT, CONGRESS EVIDENTLY FELT IT
SHOULD NOT PROVIDE FOR VARIABLE COMPENSATION TO FIT THE DEGREE OF BLAME
IN EACH INFRACTION.  FN11  INSTEAD CONGRESS ADOPTED A MANDATORY
REQUIREMENT THAT THE EMPLOYER PAY A SUM IN LIQUIDATED DAMAGES EQUAL TO
THE UNPAID WAGES SO AS TO COMPENSATE THE INJURED EMPLOYEE FOR THE
RETENTION OF HIS PAY.  FN12 

IT IS REALIZED THAT THIS CONCLUSION PUTS THE EMPLOYER AND HIS
EMPLOYEES TO AN "ALL OR NOTHING GAMBLE," AS JUDGE CHASE PHRASED THE
RESULT IN HIS DISSENT BELOW.  THEORETICALLY THIS MEANS EACH PARTY GETS
HIS JUST DESERTS, NO MORE, NO LESS.  THE ALTERNATIVE IS TO FIND IN THE
ACT AN INTENTION OF CONGRESS TO LEAVE THE ADJUSTMENTS TO BARGAINING AT
THE WORST BETWEEN EMPLOYERS AND INDIVIDUAL EMPLOYEES OR AT BEST BETWEEN
EMPLOYERS AND THE EMPLOYEES' CHOSEN REPRESENTATIVES, BARGAINING AGENT
OR SOME OTHER.  WE THINK THE PURPOSE OF THE ACT, WHICH WE REPEAT FROM
THE O'NEIL CASE WAS TO SECURE FOR THE LOWEST PAID SEGMENT OF THE
NATION'S WORKERS A SUBSISTENCE WAGE, LEADS TO THE CONCLUSION THAT
NEITHER WAGES NOR THE DAMAGES FOR WITHHOLDING THEM ARE CAPABLE OF
REDUCTION BY COMPROMISE OF CONTROVERSIES OVER COVERAGE.  FN13  SUCH A
COMPROMISE THWARTS THE PUBLIC POLICY OF MINIMUM WAGES, PROMPTLY PAID,
EMBODIED IN THE WAGE-HOUR ACT, BY REDUCING THE SUM SELECTED BY CONGRESS
AS PROPER COMPENSATION FOR WITHHOLDING WAGES.  FN14 

THE ONLY OTHER MATERIAL QUESTION PRESENTED BY THIS CERTIORARI  FN15
IS WHETHER THE WAGE-HOUR ACT COVERS SERVICE AND MAINTENANCE EMPLOYEES
OF A BUILDING THAT IS TENANTED BY OCCUPANTS WHO RECEIVE, WORK ON AND
RETURN IN INTRASTATE COMMERCE GOODS BELONGING TO NON-OCCUPANTS WHO
SUBSEQUENTLY IN THE REGULAR COURSE OF THEIR BUSINESS SHIP SUBSTANTIAL
PROPORTIONS OF THE OCCUPANTS' PRODUCTS TO OTHER STATES.  FN16  IT IS
AGREED BY PETITIONER AND RESPONDENTS THAT IF CERTAIN TENANTS ARE
INCLUDED AS PRODUCERS FOR INTERSTATE COMMERCE THE OCCUPANTS OF THE
BUILDING WHO ARE ENGAGED IN PRODUCTION FOR INTERSTATE COMMERCE ARE
SUFFICIENTLY NUMEROUS AND PRODUCTIVE TO BRING THE MAINTENANCE EMPLOYEES
OF THE BUILDING WITHIN THE COVERAGE OF THE ACT.  GANGI V. D.A. SCHULTE,
150 F.2D 694, NOTE 5.  THAT IS, PETITIONER'S BUILDING THEN WOULD BE IN
THE SAME CLASSIFICATION, SO FAR AS THE COVERAGE OF ITS MAINTENANCE
EMPLOYEES BY THE WAGE-HOUR ACT IS CONCERNED, AS WERE THE BUILDINGS IN
KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, AND BORDEN CO. V. BORELLA, 325
U.S. 679.  WE THEN WOULD HAVE NO PROBLEM AS TO THE BUSINESS OF THE
TENANTS, THAT IS, WHETHER THEY WERE PRODUCERS FOR INTERSTATE COMMERCE,
SUCH AS WAS INVOLVED IN 10 EAST 40TH STREET CO. V. CALLUS, 325 U.S.
578.  WHILE THE WAGE-HOUR ACT COVERS EMPLOYEES ENGAGED IN THE
PRODUCTION OF GOODS FOR COMMERCE, A MAINTENANCE EMPLOYEE WORKING FOR A
BUILDING CORPORATION WHICH FURNISHES LOFT SPACE TO TENANTS CAN HARDLY
BE SO ENGAGED UNLESS AN ADEQUATE PROPORTION OF THE TENANTS OF THAT
BUILDING ARE SO ENGAGED.  KIRSCHBAUM CO. V. WALLING, 316 U.S. AT 524;
WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564, 572. 

OUR INQUIRY, THEREFORE, IS NARROWED TO A DETERMINATION OF WHETHER OR
NOT THESE CERTAIN TENANTS OF PETITIONER, TWELVE IN NUMBER, ARE
PRODUCING GOODS FOR INTERSTATE COMMERCE.  THESE TENANTS MANUFACTURED
ARTICLES FOR NON-TENANT NEW YORK CITY BUSINESS ORGANIZATIONS, WHICH
ORGANIZATIONS SUBSEQUENTLY SOLD THE ARTICLES IN INTERSTATE COMMERCE. 
THE CIRCUIT COURT OF APPEALS HELD AS TO THEM, 150 F.2D 697:  FN17 

"AND THE TESTIMONY CLEARLY SHOWS THAT AT THE TIME OF PRODUCTION THESE
TENANTS HAD AT THE VERY LEAST REASONABLE GROUNDS TO ANTICIPATE THAT
THEIR PRODUCTS WOULD MOVE IN OTHER STATES.  THIS IS ALL THAT HAD TO BE
SHOWN TO CONSTITUTE THEM INTERSTATE PRODUCERS.  WARRENBRADSHAW DRILLING
CO. V. HALL, 317 U.S. 88, 92; UNITED STATES V. DARBY, 312 U.S. 100,
118...." 

PETITIONER ASSERTS THAT FOR FOUR OF THE TWELVE THERE WAS NO EVIDENCE
THAT ANY OF THEM KNEW AT THE TIME OF PRODUCTION OR LATER THAT THEIR
PRODUCTS WERE TO BE SHIPPED INTERSTATE AND THAT THE PROPER
CHARACTERIZATION OF THESE FOUR TENANTS, AS PRODUCERS OR NON-PRODUCERS
FOR INTERSTATE COMMERCE, IS DECISIVE OF THE LIABILITY OF PETITIONER. 
WITHOUT DETAILING THE FACTUAL SITUATION WHICH MAKES THE POSITION OF
THESE FOUR TENANTS DECISIVE OF LIABILITY, WE ASSUME PETITIONER'S
CONCLUSION THAT ITS LIABILITY DEPENDS UPON THE PROPER CHARACTERIZATION
OF THE FOUR TENANTS IN RESPECT TO THEIR POSITION AS PRODUCERS FOR
INTERSTATE COMMERCE.  WE ASSUME THAT THE OTHER EIGHT ARE IN THE SAME
CATEGORY OF TENANTS. 

PETITIONER RELIES UPON WALLING V. JACKSONVILLE PAPER CO., 317 U.S.
564, 569, AS INDICATING THAT EVIDENCE OF A PREEXISTING UNDERSTANDING BY
A MANUFACTURER OF THE INTERSTATE DESTINATION OF HIS PRODUCTS IS
ESSENTIAL.  BUT THAT CASE WAS CONCERNED WITH WHETHER A WHOLESALER'S
EMPLOYEES WHO HANDLED STOCK WERE IN COMMERCE, NOT WHETHER THEY WERE
ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE.  FN18  ON THAT BASIS
DISTINCTIONS WERE MADE, AS TO EMPLOYEES HANDLING GOODS LOCALLY, BETWEEN
A WHOLESALER'S STOCK PURCHASED ON PRIOR ORDER EXTRA-STATE FOR DELIVERY
INTRASTATE AND OTHER STOCK PURCHASED EXTRA-STATE AND WAREHOUSED FOR
SUBSEQUENT SALE AND LOCAL HANDLING.  WE FIND NOTHING IN THE CASE THAT
LENDS ANY SUPPORT TO THE SUGGESTION THAT A MANUFACTURER'S INTRASTATE
DELIVERY TO A WHOLESALER OR DISTRIBUTOR OR OTHER MANUFACTURER FOR
FURTHER PROCESSING FOR ULTIMATE INTERSTATE DISTRIBUTION INTERRUPTS
PRODUCTION FOR INTERSTATE COMMERCE.    THE BURDEN OF PROOF THAT RESTS
UPON EMPLOYEES TO ESTABLISH THAT THEY ARE ENGAGED IN THE PRODUCTION OF
GOODS FOR COMMERCE MUST BE MET BY EVIDENCE IN THE RECORD. 
WARRENBRADSHAW DRILLING CO. V. HALL, 317 U.S. 88, 90.  THE RECORD SHOWS
THIS BUILDING IS AT 571-583 EIGHTH AVENUE, BOROUGH OF MANHATTAN, CITY
OF NEW YORK.  THE TESTIMONY OF MANY WITNESSES SHOWS THAT THE TENANTS
WERE PREDOMINANTLY, IF NOT ENTIRELY, ENGAGED IN WORK FOR THE GARMENT
TRADES.  WE WILL TAKE JUDICIAL NOTICE, AS A MATTER OF COMMON KNOWLEDGE,
THAT NEW YORK CITY PRODUCES MORE GARMENTS FOR INTERSTATE SHIPMENT THAN
ANY OTHER CITY IN THE NATION.  ELEVEN OF THE TWELVE TENANTS WERE
CONTRACTORS WHO FURNISHED LABOR ON GOODS SENT IN TO THEM SO AS TO
PRODUCE CLOTHING ARTICLES EVENTUALLY DISTRIBUTED IN INTERSTATE
COMMERCE.  THE TWELFTH WAS A MANUFACTURER WITH OFFICES, SALESROOM AND
SHIPPING ROOMS ELSEWHERE IN NEW YORK.  THERE WAS NO SPECIFIC EVIDENCE
THAT THE FOUR CONTRACTORS, UPON WHOSE STATUS PETITIONER BASES HIS
ARGUMENT, EVER KNEW THAT THEIR GOODS WERE INTENDED TO BE OR EVENTUALLY
WERE SHIPPED INTERSTATE.  THERE IS CLEAR EVIDENCE THAT EACH BUSINESS
ORGANIZATION FOR WHICH THESE FOUR TENANTS DID PRODUCE THESE CLOTHING
ARTICLES SHIPPED A MAJOR PROPORTION OF THE ARTICLES SO PRODUCED BY
THESE TENANTS IN INTERSTATE COMMERCE IN THE REGULAR COURSE OF THEIR
BUSINESS.  THE PRODUCTION OF THESE ARTICLES BY THE TENANTS FOR NON
TENANTS WAS THE REGULAR BUSINESS OF THE TENANTS.  THE SHORTEST
OCCUPANCY OF SPACE BY ANY OF THE FOUR WAS FIVE YEARS AND ELEVEN
MONTHS. 

FROM THESE FACTS, WE THINK THE CONCLUSION OF THE CIRCUIT COURT OF
APPEALS THAT THESE TENANTS HAD REASONABLE GROUNDS TO ANTICIPATE THAT
MATERIAL QUANTITIES OF THEIR PRODUCTION WOULD MOVE INTERSTATE IS WELL
SUPPORTED.  IT IS NOT ESSENTIAL THAT INDIVIDUAL PRODUCTS SHOULD BE
TRACED.  IT IS SUFFICIENT THAT, FROM THE CIRCUMSTANCES OF PRODUCTION, A
TRIER OF FACT MAY REASONABLY INFER THAT A PRODUCER HAS GROUNDS TO
ANTICIPATE THAT HIS PRODUCTS WILL MOVE INTERSTATE N19.  CERTAINLY IF
THESE TENANTS HAD NOT ONLY MANUFACTURED BUT HAD ALSO SHIPPED THEIR
PRODUCTS INTERSTATE, NO ONE WOULD DOUBT THAT THEY WERE PRODUCERS FOR
COMMERCE.  MERE SEPARATION OF THE ECONOMIC PROCESSES OF PRODUCTION FOR
COMMERCE BETWEEN DIFFERENT INDUSTRIAL UNITS, EVEN WITHOUT ANY DEGREE OF
COMMON OWNERSHIP, DOES NOT DESTROY THE CONTINUITY OF PRODUCTION FOR
COMMERCE.  PRODUCERS MAY BE HELD TO KNOW THE USUAL ROUTES FOR
DISTRIBUTION OF THEIR PRODUCTS.  ALL THIS IS MADE PLAIN BY THE
CITATIONS OF THE COURT OF APPEALS TO THE DARBY AND BRADSHAW CASES. 
AFFIRMED. 

FN1  52 STAT. 1063: 

"SEC. 7.  (A)  NO EMPLOYER SHALL  ...  EMPLOY ANY OF HIS EMPLOYEES
WHO IS ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE -
(LONGER THAN THE MAXIMUM WORKWEEK) 

   .         .         .         .         . UNLESS SUCH EMPLOYEE
RECEIVES COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE
SPECIFIED AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR
RATE AT WHICH HE IS EMPLOYED." 

FN2  52 STAT. 1069: 

"SEC. 16.  (B)  ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 6
OR SECTION 7 OF THIS ACT SHALL BE LIABLE TO THE EMPLOYEE OR EMPLOYEES
AFFECTED IN THE AMOUNT OF THEIR UNPAID MINIMUM WAGES, OR THEIR UNPAID
OVERTIME COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL EQUAL
AMOUNT AS LIQUIDATED DAMAGES.  ACTION TO RECOVER SUCH LIABILITY MAY BE
MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE OR MORE
EMPLOYEES FOR AND IN BEHALF OF HIMSELF OR THEMSELVES AND OTHER
EMPLOYEES SIMILARLY SITUATED, OR SUCH EMPLOYEE OR EMPLOYEES MAY
DESIGNATE AN AGENT OR REPRESENTATIVE TO MAINTAIN SUCH ACTION FOR AND IN
BEHALF OF ALL EMPLOYEES SIMILARLY SITUATED.  THE COURT IN SUCH ACTION
SHALL, IN ADDITION TO ANY JUDGMENT AWARDED TO THE PLAINTIFF OR
PLAINTIFFS, ALLOW A REASONABLE ATTORNEY'S FEE TO BE PAID BY THE
DEFENDANT, AND COSTS OF THE ACTION." 

FN3  GANGI V. D.A. SCHULTE, 150 F.2D 694.  SEE ALSO FLEMING V.
WARSHAWSKY & CO., 123 F.2D 622, 626. 

FN4  IN VIEW OF THE NUMBER OF SETTLEMENTS FOR VIOLATIONS, THE ISSUE
IS OF IMPORTANCE.  SEE ANNUAL REPORT, WAGE AND HOUR AND PUBLIC
CONTRACTS DIVISIONS, U.S. DEPARTMENT OF LABOR, FISCAL YEAR ENDING JUNE
30, 1945, P. 2: 

"IN THE SIX YEARS AND NINE MONTHS THAT THE FAIR LABOR STANDARDS ACT
HAD BEEN IN FORCE THROUGH THE END OF THE FISCAL YEAR, ABOUT $85,000,000
IN RESTITUTION OF ILLEGALLY WITHHELD WAGES HAD BEEN AGREED TO OR
ORDERED PAID TO ALMOST TWO AND A HALF MILLION WORKERS IN MORE THAN
110,000 ESTABLISHMENTS, WITH MORE THAN TWO-FIFTHS OF THE CASES
INVOLVING FAILURE TO PAY THE MINIMUM WAGE OF 40 CENTS AN HOUR OR
LESS." 

FN5  "THE UNDERSIGNED, AN EMPLOYEE OF D.A. SCHULTE, INC., IN PREMISES
575 EIGHTH AVENUE, NEW YORK CITY, DOES HEREBY ACKNOWLEDGE RECEIPT OF
THE SUM OF $  ...  AS PAYMENT IN FULL OF ALL SUMS, IF ANY, WHICH MAY BE
DUE TO THE UNDERSIGNED BY SAID D.A. SCHULTE, INC. BY REASON OF THE
FEDERAL WAGE & HOUR ACT, AND THE UNDERSIGNED DOES HEREBY RELEASE SAID
D.A. SCHULTE, INC. OF AND FROM ANY OTHER OR FURTHER OBLIGATIONS IN
CONNECTION THEREWITH." 

FN6  GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239. 

FN7  MELLON V. GOODYEAR, 277 U.S. 335. 

FN8  ATTENTION IS CALLED BY PETITIONER TO THE FAILURE IN THIS CASE OF
THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, UNITED STATES
DEPARTMENT OF LABOR, AS AMICUS CURIAE, TO TAKE THE POSITION THAT
COMPROMISE PAYMENTS IN CASES OF DISPUTED COVERAGE ARE INVALID.  THE
ADMINISTRATOR IS CHARGED WITH RESPONSIBILITY FOR THE ADMINISTRATION OF
THE ACT.  PETITIONER CITES FROM THE ADMINISTRATOR'S BRIEF (P. 20) IN
THE O'NEIL CASE TO SHOW THE GOVERNMENT POSITION THE FOLLOWING EXCERPT:
"THE FACTORS WHICH WE HAVE MENTIONED SUGGEST, TO US, THE DIFFICULTY AND
PERHAPS THE INADVISABILITY FROM THE STANDPOINT OF THE POLICY OF THE ACT
OF FRAMING A SWEEPING GENERALIZATION THAT ALL RELEASES OF LIQUIDATED
DAMAGES ARE EITHER VALID OR INVALID."  THAT BRIEF CALLED ATTENTION ALSO
(PP. 19-20) TO GOVERNMENT PRACTICE UPON VIOLATIONS OF THE ACT BY
CONTRACTORS WITH COST-PLUS CONTRACTS WITH THE WAR AND NAVY
DEPARTMENTS: 

"IF IT IS DECIDED BY THE CONTRACTING AGENCY, THE ADMINISTRATOR, OR ON
APPEAL BY THE ASSISTANT ATTORNEY GENERAL, THAT THE EMPLOYEE SHOULD
PREVAIL, THE UNITED STATES ATTORNEY HANDLING THE CASE IS DIRECTED TO
NEGOTIATE A TENTATIVE SETTLEMENT WITH THE EMPLOYEE'S COUNSEL FOR
SUBMISSION TO THE CONTRACTING AGENCY FOR ACCEPTANCE OR REJECTION.  THE
WAGES DUE ARE OF COURSE ALWAYS PAID, BUT THE CLAIM FOR LIQUIDATED
DAMAGES IS THE SUBJECT OF BARGAINING, AND ALMOST INVARIABLY THE
EMPLOYEE'S COUNSEL IS WILLING TO ACCEPT CONSIDERABLY LESS THAN THE
TOTAL AMOUNT OF LIQUIDATED DAMAGES.  AFTER PAYMENT OF THE AMOUNT AGREED
ON, A JUDGMENT IS ENTERED DISMISSING THE SUIT WITH PREJUDICE, THEREBY
PREVENTING THE EMPLOYEE FROM SEEKING TO RECOVER MORE ON THE SAME
CLAIM." 

SETTLEMENTS OF CONTROVERSIES UNDER THE ACT BY STIPULATED JUDGMENTS IN
THIS COURT ARE ALSO REFERRED TO BY PETITIONER.  NORTH SHORE CORP. V.
BARNETT, 323 U.S. 679. 

PETITIONER DRAWS THE INFERENCE THAT BONA FIDE STIPULATED JUDGMENTS ON
ALLEGED WAGE-HOUR VIOLATIONS FOR LESS THAN THE AMOUNTS ACTUALLY DUE
STAND IN NO BETTER POSITION THAN BONA FIDE SETTLEMENTS.  EVEN THOUGH
STIPULATED JUDGMENTS MAY BE OBTAINED, WHERE SETTLEMENTS ARE PROPOSED IN
CONTROVERSIES BETWEEN EMPLOYERS AND EMPLOYEES OVER VIOLATIONS OF THE
ACT, BY THE SIMPLE DEVICE OF FILING SUITS AND ENTERING AGREED
JUDGMENTS, WE THINK THE REQUIREMENT OF PLEADING THE ISSUES AND
SUBMITTING THE JUDGMENT TO JUDICIAL SCRUTINY MAY DIFFERENTIATE
STIPULATED JUDGMENTS FROM COMPROMISES BY THE PARTIES.  AT ANY RATE, THE
SUGGESTION OF PETITIONER IS ARGUMENTATIVE ONLY AS NO JUDGMENT WAS
ENTERED IN THIS CASE. 

FN9  SEE DIZE V. MADDRIX, 324 U.S. 697, 701-2, 713. 

FN10  SEE STRAND V. GARDEN VALLEY TELEPHONE CO., 51 F.SUPP.  898, 904
5. 

FN11  BROOKLYN SAVINGS BANK V. O'NEIL, SUPRA, 713; WEST COAST HOTEL
CO. V. PARRISH, 300 U.S. 379, 397; ADKINS V. CHILDREN'S HOSPITAL, 261
U.S. 525, 563. 

FN12  OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, 583-84; BIRBALAS
V. CUNEO PRINTING INDUSTRIES, 140 F.2D 826, 828-29. 

FN13  DISCUSSIONS OF COMPROMISE OF LIABILITY UNDER THE WAGE-HOUR ACT
WILL BE FOUND IN 45 COL. L. REV. 798; 14 GEORGE WASHINGTON L. REV. 385
AND 57 HARV. L. REV. 257. 

FN14  BROOKLYN SAVINGS BANK V. O'NEIL, SUPRA, 704-5, NOTE 14. 

FN15  THE PRECISE LANGUAGE OF THE QUESTION PRESENTED IS AS FOLLOWS: 

"WHETHER BUILDING MAINTENANCE EMPLOYEES ARE WITHIN THE PROTECTION OF
THE ACT IF THE FACTS RELIED ON TO ESTABLISH COVERAGE OF THE EMPLOYEES
SHOW ONLY THAT SOME OF THE TENANTS IN THE BUILDING RECEIVE, WORK ON AND
RETURN IN INTRASTATE COMMERCE GOODS BELONGING TO LOCAL OWNERS WHO ARE
NOT TENANTS OF THE BUILDING AND THAT SUBSEQUENTLY SOME OF THE SAID
GOODS ARE SOLD AND SHIPPED BY SUCH NON-TENANT OWNERS IN INTERSTATE
COMMERCE, THERE BEING NO PROOF EITHER THAT AT THE TIME OF PRODUCTION
SUCH TENANTS HAD ANY KNOWLEDGE OF THE ULTIMATE DESTINATION OF THE GOODS
WORKED ON BY THEM OR THAT AT THE TIME OF PRODUCTION THE NON-TENANT
OWNERS HAD ANY PRIOR ORDERS OR AGREEMENTS TO SELL AND SHIP ANY PART OF
THE COMPLETED GOODS IN INTERSTATE COMMERCE." 

FN16  NO PROBLEM INVOLVING THE SOUNDNESS OF THE WAGE-HOUR STANDARDS
TO GUIDE ITS ENFORCEMENT OF THE ACT IS INVOLVED.  WE EXPRESS NO OPINION
ON THAT QUESTION.  AS A WORKING HYPOTHESIS THE WAGE-HOUR ADMINISTRATION
ASSUMES THAT WHEN AS MUCH AS TWENTY PER CENT OF A BUILDING IS OCCUPIED
BY FIRMS SUBSTANTIALLY ENGAGED IN PRODUCTION FOR COMMERCE, THEN IT IS
LIKELY THAT MAINTENANCE EMPLOYEES WILL BE COVERED.  RELEASE PR
19(REV.), NOV. 19, 1943, WAGE-HOUR DIVISION, U.S. DEPARTMENT OF LABOR. 
THE CIRCUIT COURT OF APPEALS APPLIED THIS RULE WITH THE RESULT THAT IT
DECIDED NONE OF THE RESPONDENTS WAS COVERED BY THE ACT PRIOR TO JANUARY
1, 1940.  150 F.2D 694, 696-97.  IT DECIDED THAT ALL THE RESPONDENTS
WERE COVERED BY THE ACT BEGINNING JANUARY 1, 1940, BECAUSE MORE THAN
TWENTY PER CENT OF THE TENANTS THEN WERE ENGAGED IN THE PRODUCTION OF
GOODS FOR COMMERCE.  NO REVIEW OF THE FIRST RULING IS SOUGHT BY
RESPONDENTS.  PETITIONER DID NOT QUESTION THE SOUNDNESS OF THE TWENTY
PER CENT STANDARD IN ITS PETITION FOR CERTIORARI OR BRIEF. 

AS NO QUESTION IS MADE IN PETITION FOR CERTIORARI OR BRIEF AS TO THE
PROPRIETY OF THE ACTION OR THE POWER OF THE CIRCUIT COURT OF APPEALS IN
DETERMINING THE KIND OF ACTIVITY, STATE OR INTERSTATE, THAT THE
PETITIONER'S TENANTS CARRIED ON, RATHER THAN RETURNING THE CASE TO THE
DISTRICT COURT FOR A FINDING OF FACT, WE PASS THE QUESTION WITHOUT
INQUIRY AND WITHOUT INTIMATION OF OUR UNDERSTANDING OF THE PROPER
PROCEDURE.  COMPARE THE MAJORITY AND DISSENTING OPINIONS IN 150 F.2D
694. 

FN17  PETITIONER SAYS AS TO THIS FINDING:  "THE SOLE BASIS IN THE
RECORD FOR THIS FINDING IS THAT THE MANUFACTURERS FOR WHOM THE SAID
TWELVE TENANT-CONTRACTORS WORKED EVENTUALLY DISPOSED OF SOME OF THEIR
GOODS IN INTERSTATE COMMERCE.  NO EVIDENCE WAS OFFERED AND NO ATTEMPT
WAS MADE TO PROVE THAT AT THE TIME WHEN ANY OF THE ADDITIONAL TWELVE
TENANTS WORKED ON GOODS BELONGING TO THE MANUFACTURERS, SUCH
MANUFACTURERS HAD AN ORDER OR AN AGREEMENT OR CONTRACT FOR THE SHIPMENT
OF THE GOODS, WHEN COMPLETED, IN INTERSTATE COMMERCE.  THERE WAS NO
TESTIMONY BY ANY OF THE TWELVE TENANTS THAT THEY KNEW OR HAD REASON TO
BELIEVE THAT THE GOODS WORKED ON BY THEM WOULD BE SHIPPED IN INTERSTATE
COMMERCE.  IN FACT, THERE WAS NO EVIDENCE, IN THE CASE OF FOUR OF THE
TWELVE TENANTS, THAT ANY OF THEM KNEW, EITHER AT THE TIME OF PRODUCTION
OR AT ANY TIME THEREAFTER, OR EVEN UPON THE TRIAL, THAT THE GOODS
WORKED ON BY THEM WERE EVENTUALLY SHIPPED IN INTERSTATE COMMERCE." 

FN18  COMPARE MCLEOD V. THRELKELD, 319 U.S. 491. 

FN19  COMPARE DIZE V. MADDRIX, 144 F.2D 584; CULVER V. BELL &
LOFFLAND, 146 F.2D 29; ST. JOHN V. BROWN, 38 F.SUPP.  385, 388; FLEMING
V. ENTERPRISE BOX CO., 37 F.SUPP.  331, AFF'D 125 F.2D 897; BRACEY V.
LURAY, 138 F.2D 8. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE BURTON CONCURS,
DISSENTING. 

SUBSTANTIALLY FOR THE REASONS GIVEN BY JUDGE RIFKIND, 53 F.SUPP. 
844, I WOULD RESTORE HIS JUDGMENT IN THE DISTRICT COURT AND REVERSE
THAT OF THE CIRCUIT COURT OF APPEALS.  FOR PURPOSES OF JUDICIAL
ENFORCEMENT, THE "POLICY" OF A STATUTE SHOULD BE DRAWN OUT OF ITS
TERMS, AS NOURISHED BY THEIR PROPER ENVIRONMENT, AND NOT, LIKE
NITROGEN, OUT OF THE AIR.  BEFORE A HITHERTO FAMILIAR AND SOCIALLY
DESIRABLE PRACTICE IS OUTLAWED, WHERE OVERREACHING OR EXPLOITATION IS
NOT INHERENT IN THE SITUATION, THE OUTLAWRY SHOULD COME FROM CONGRESS. 
TO THAT END, SOME RESPONSIBILITY AT LEAST FOR A BROAD HINT TO THE
COURTS, IF NOT FOR EXPLICITNESS, SHOULD BE LEFT WITH CONGRESS. 

WHEN ON OTHER OCCASIONS CONGRESS HAS DESIRED TO FORBID ARRANGEMENTS
MADE IN GOOD FAITH, IT HAS KNOWN HOW TO EXPRESS ITS WILL.  WHEN IT HAS
NOT SAID SO IN WORDS, IT HAS SAID SO IN EFFECT BY THE VERY THING IT HAS
REQUIRED, AS, FOR INSTANCE, WHEN IT MADE TARIFFS FILED WITH THE
INTERSTATE COMMERCE COMMISSION THE FIXED MEASURE OF TRANSPORTATION
CHARGES AND FORBADE DISCRIMINATION.  24 STAT. 379, 380, AS AMENDED; 49
U.S.C. SEC. 6(7).  OF COURSE THAT PRECLUDES DISCRIMINATION BY
CONTRACT.  E.G., PITTSBURGH, C., C. & ST. L.R. CO. V. FINK, 250 U.S.
577.  THE FAIR LABOR STANDARDS ACT AFFORDS NO COMPARABLE BASIS FOR THE
COURT'S DECISION IN THIS CASE.  NOTHING IS DISCERNIBLE IN ANYTHING THAT
CONGRESS HAS SAID OR DONE TO IMPLY THE PROHIBITION OF A SETTLEMENT MADE
BY PARTIES IN GOOD FAITH, NOT FOR THE MINIMUM WAGES BUT A SETTLEMENT
AFFECTING THE PENALIZING DOUBLE LIABILITY WHERE ANY LIABILITY WAS
FAIRLY IN CONTROVERSY WHEN THE SETTLEMENT WAS MADE.  THE SEVERITY OF
THE PENALTIES IMPOSED AND THE LEGITIMATE DIFFERENCES REGARDING THE
SCOPE OF THE ACT, INHERENT IN ITS TERMS, CF. KIRSCHBAUM CO. V. WALLING,
316 U.S. 517, 520, 523, ONLY SERVE TO UNDERLINE THE IMPOLICY OF
ATTRIBUTING TO CONGRESS A PURPOSE REFLECTED NEITHER IN ANY SPECIFIC
PROVISION OF THE STATUTE NOR IN THE SCHEME OF THE LEGISLATION.  STRICT
ENFORCEMENT OF THE POLICY WHICH PUTS BEYOND THE PALE OF PRIVATE
ARRANGEMENT MINIMUM STANDARDS OF WAGES AND HOURS FIXED BY LAW DOES NOT
CALL FOR DISREGARD OF ANOTHER POLICY, THAT OF ENCOURAGING AMICABLE
SETTLEMENT OF HONEST DIFFERENCES BETWEEN MEN DEALING AT ARM'S LENGTH
WITH ONE ANOTHER. 
..END :


















SMITH V. HOBOKEN R. CO., 328 U.S. 123 


NO. 384.  ARGUED DECEMBER 11, 1945.  - DECIDED APRIL 29, 1946.  - 150
F.2D 921, REVERSED. 


1.  THE PROVISION OF SEC. 70(B) OF THE BANKRUPTCY ACT THAT "AN EXPRESS
COVENANT THAT AN ASSIGNMENT BY OPERATION OF LAW OR THE BANKRUPTCY OF A
SPECIFIED PARTY THERETO OR OF EITHER PARTY SHALL TERMINATE THE LEASE OR
GIVE THE OTHER PARTY AN ELECTION TO TERMINATE THE SAME SHALL BE
ENFORCEABLE" IS APPLICABLE TO RAILROAD REORGANIZATIONS UNDER SEC. 77 OF
THE BANKRUPTCY ACT.  PP. 126-128. 

2.  THE PROVISION OF SEC. 70(B) OF THE BANKRUPTCY ACT, AUTHORIZING
ENFORCEMENT AGAINST A BANKRUPTCY TRUSTEE OF AN EXPRESS COVENANT OF
FORFEITURE, EMBRACES A COVENANT APPLICABLE TO ANY "TRANSFER" OF THE
PREMISES "IN ANY PROCEEDING, WHETHER AT LAW OR IN EQUITY OR OTHERWISE,"
TO WHICH THE LESSEE IS A PARTY, AND "WHEREBY ANY OF THE RIGHTS, DUTIES
AND OBLIGATIONS" OF THE LESSEE ARE "TRANSFERRED, ENCUMBERED, ABROGATED
OR IN ANY MANNER ALTERED" WITHOUT THE LESSOR'S CONSENT.  P. 128. 

3.  WHETHER, IN A PROCEEDING FOR REORGANIZATION OF AN INTERSTATE
RAILROAD UNDER SEC. 77 OF THE BANKRUPTCY ACT, ENFORCEMENT AGAINST THE
TRUSTEE OF A COVENANT OF FORFEITURE IN A LEASE OF RAILROAD TRACKS AND
FACILITIES WOULD BE "CONSISTENT WITH THE PROVISIONS" OF SEC. 77, WITHIN
THE MEANING OF SEC. 77(1), PRESENTS PROBLEMS PRIMARILY FOR
CONSIDERATION AND DECISION BY THE INTERSTATE COMMERCE COMMISSION; AND
THE REORGANIZATION COURT SHOULD NOT HAVE DECLARED A FORFEITURE OF THE
LEASE UNTIL THE QUESTIONS HAD BEEN PASSED UPON BY THE COMMISSION.  PP.
128-129. 

(A)  WHETHER THE PUBLIC INTEREST REQUIRES THAT THE LINE BE OPERATED
BY THE LESSEE RATHER THAN THE LESSOR PRESENTS A QUESTION FOR THE
COMMISSION UNDER SEC. 1(18) OF THE INTERSTATE COMMERCE ACT.  P. 130. 

(B)  IT IS THE FUNCTION OF THE COMMISSION UNDER SEC. 77 OF THE
BANKRUPTCY ACT TO PREPARE THE PLAN OF REORGANIZATION OF THE DEBTOR
COMPANY; AND, IF THE REORGANIZATION COURT DECREES A FORFEITURE IN
ADVANCE OF CONSIDERATION OF THE PROBLEM BY THE COMMISSION, IT WOULD
INTERFERE WITH THE FUNCTIONS ENTRUSTED TO THE COMMISSION UNDER SEC.
77.  PP. 130, 132. 

SMITH, TRUSTEE, ET AL. V. HOBOKEN RAILROAD, WAREHOUSE AND STEAMSHIP
CONNECTING CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

IN PROCEEDINGS FOR THE REORGANIZATION OF A RAILROAD UNDER SEC. 77 OF
THE BANKRUPTCY ACT, THE REORGANIZATION COURT GRANTED RESPONDENT'S
MOTION TO TERMINATE A LEASE IN WHICH THE DEBTOR COMPANY WAS LESSEE.  56
F.SUPP.  187.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  150 F.2D 921. 
THIS COURT GRANTED CERTIORARI.  326 U.S. 707.  REVERSED, P. 133. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

HOBOKEN MANUFACTURERS RAILROAD CO. (THE DEBTOR) OPERATES A TERMINAL
SWITCHING RAILROAD ALONG THE WATERFRONT AT HOBOKEN, NEW JERSEY.  IT IS
A COMMON CARRIER SUBJECT TO THE PROVISIONS OF THE INTERSTATE COMMERCE
ACT.  24 STAT. 379, 41 STAT. 474, 49 STAT. 543, 54 STAT. 899, 49 U.S.C.
SEC. 1.  THE MAJOR PART OF ITS RIGHT-OF-WAY AND LINE OF RAILROAD IS
HELD BY IT UNDER A 99-YEAR LEASE FROM RESPONDENT DATED JUNE 19, 1906. 
FN1  IN 1943 THE DEBTOR FILED A PETITION FOR REORGANIZATION UNDER SEC.
77 OF THE BANKRUPTCY ACT (49 STAT. 1969, 53 STAT. 1406, 11 U.S.C. SEC.
205) IN THE DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.  THE
PETITION WAS APPROVED AND PETITIONER SMITH WAS APPOINTED TRUSTEE. 
SHORTLY THEREAFTER RESPONDENT NOTIFIED THE TRUSTEE THAT IT WOULD
PETITION THE REORGANIZATION COURT FOR TERMINATION OF THE LEASE.  A
HEARING WAS HELD AND DECISION RESERVED.  WHILE THE MATTER WAS UNDER
ADVISEMENT THE TRUSTEE ON ORDER OF THE COURT ADOPTED THE LEASE. 
THEREAFTER THE REORGANIZATION COURT GRANTED RESPONDENT'S MOTION TO
TERMINATE THE LEASE, HOLDING THAT THE APPOINTMENT OF THE TRUSTEE WAS A
BREACH OF THE TERMS OF THE LEASE ENTITLING THE LESSOR TO REENTER.  FN2
56 F.SUPP.  187.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  150 F.2D
921.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE OF THE IMPORTANCE OF THE PROBLEM IN THE ADMINISTRATION
OF THE INTERSTATE COMMERCE ACT AND THE BANKRUPTCY ACT. 

THE PROVISION OF THE LEASE UPON WHICH THE FORFEITURE WAS DECREED
READS AS FOLLOWS: 

"THE LESSEE SHALL NOT AND WILL NOT SELL, ASSIGN OR TRANSFER THIS
LEASE OR UNDERLET THE DEMISED PREMISES, OR ANY PART THEREOF, OR THE
RIGHTS AND PRIVILEGES, OR ANY OF THEM, HEREBY GRANTED, WITHOUT THE
PREVIOUS CONSENT OF THE LESSOR EXPRESSED BY ENDORSEMENT ON THIS LEASE
MADE IN PURSUANCE OF AUTHORITY GRANTED BY RESOLUTION OF THE BOARD OF
DIRECTORS OF THE LESSOR  ...  THIS COVENANT SHALL ALSO APPLY TO ANY
UNAUTHORIZED SALE OR TRANSFER THEREOF OR UNDERLETTING OF THE DEMISED
PREMISES, OR ANY PART THEREOF, OR OF THE SAID RIGHTS AND PRIVILEGES, OR
ANY OF THEM, WHETHER MADE BY THE LESSEE OR IN ANY PROCEEDING, WHETHER
AT LAW OR IN EQUITY OR OTHERWISE, TO WHICH THE LESSEE MAY BE A PARTY,
WHEREBY ANY OF THE RIGHTS, DUTIES AND OBLIGATIONS OF THE LESSEE SHALL
OR MAY BE TRANSFERRED, ENCUMBERED, ABROGATED OR IN ANY MANNER ALTERED,
WITHOUT THE CONSENT OF THE LESSOR FIRST HAD AND OBTAINED IN THE MANNER
HEREINBEFORE PROVIDED." 

BY A FURTHER PROVISION OF THE LEASE, VIOLATION OF THAT COVENANT
ENTITLED THE LESSOR TO TERMINATE THE LEASE AND TO REENTER ON SPECIFIED
NOTICE. 

SEC. 77(1), 11 U.S.C. SEC. 205(1) PROVIDES: 

"IN PROCEEDINGS UNDER THIS SECTION AND CONSISTENT WITH THE PROVISIONS
THEREOF, THE JURISDICTION AND POWERS OF THE COURT, THE DUTIES OF THE
DEBTOR AND THE RIGHTS AND LIABILITIES OF CREDITORS, AND OF ALL PERSONS
WITH RESPECT TO THE DEBTOR AND ITS PROPERTY, SHALL BE THE SAME AS IF A
VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN FILED AND A DECREE OF
ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE DEBTOR'S PETITION WAS
FILED." 

SEC. 70(B) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 110(B) PROVIDES IN
PART: 

"A GENERAL COVENANT OR CONDITION IN A LEASE THAT IT SHALL NOT BE
ASSIGNED SHALL NOT BE CONSTRUED TO PREVENT THE TRUSTEE FROM ASSUMING
THE SAME AT HIS ELECTION AND SUBSEQUENTLY ASSIGNING THE SAME; BUT AN
EXPRESS COVENANT THAT AN ASSIGNMENT BY OPERATION OF LAW OR THE
BANKRUPTCY OF A SPECIFIED PARTY THERETO OR OF EITHER PARTY SHALL
TERMINATE THE LEASE OR GIVE THE OTHER PARTY AN ELECTION TO TERMINATE
THE SAME SHALL BE ENFORCEABLE." 

WE HAVE RECENTLY HELD THAT THOSE PROVISIONS OF SEC. 70(B) OF THE
BANKRUPTCY ACT ARE APPLICABLE TO REORGANIZATIONS UNDER CH. X. 52 STAT.
885, 11 U.S.C. SEC. 526.  FINN V. MEIGHAN, 325 U.S. 300.  IT IS ARGUED
HERE, AS IT WAS THERE, THAT SEC. 70(B) SHOULD NOT BE APPLIED IN
REORGANIZATION PROCEEDINGS SINCE REORGANIZATION PLANS MIGHT BE
SERIOUSLY IMPAIRED IF FORFEITURE CLAUSES IN LEASES WERE ALLOWED TO BE
ENFORCED.  IT IS CONTENDED THAT FORFEITURE OF RAILROAD LEASES RUNS
COUNTER TO THE DESIGN AND PURPOSE OF SEC. 77, WHICH IS AIMED AT KEEPING
RAILROAD PROPERTIES INTACT SO THAT REORGANIZATION PLANS MAY BE WORKED
OUT AND DISINTEGRATION OF TRANSPORTATION SYSTEMS PREVENTED.  IT IS
ARGUED THAT THE POLICY OF SEC. 77 WHICH PREVENTS PLEDGEES AND
MORTGAGEES FROM FORECLOSING THEIR LIENS (CONTINENTAL ILLINOIS NATIONAL
BANK V. CHICAGO, R.I. & P.R. CO., 294 U.S. 648; GROUP OF INSTITUTIONAL
INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318 U.S. 523) IS EQUALLY
APPLICABLE TO PREVENT LESSORS FROM CAUSING FORFEITURE OF LEASES.  IT IS
POINTED OUT THAT SEC. 77(A) GIVES THE REORGANIZATION COURT EXCLUSIVE
JURISDICTION OF THE DEBTOR AND ITS PROPERTY WHEREVER LOCATED.  IT IS
NOTED THAT LESSORS ARE CREDITORS AS DEFINED BY SEC. 77(B) AND THAT A
PLAN OF REORGANIZATION CAN MODIFY OR ALTER THE RIGHTS OF CREDITORS
EITHER THROUGH THE ISSUANCE OF SECURITIES OR OTHERWISE.  SEC.
77(B)(1).  IT IS ALSO POINTED OUT THAT A PLAN OF REORGANIZATION MAY
CURE OR WAIVE DEFAULTS AND MAY DEAL WITH ALL OR ANY PART OF THE
PROPERTY OF THE DEBTOR, SEC. 77(B)(5), AND MAY PROVIDE FOR THE
REJECTION OR ADOPTION OF LEASES.  SEC. 77(B).  FROM THESE PROVISIONS
AND THE POLICY THEY REFLECT, IT IS ARGUED THAT SEC. 77 SHOULD NOT BE
CONSTRUED AS INCORPORATING WITHIN IT SEC. 70(B). 

AS WE HAVE NOTED, SEC. 77(1) PROVIDES THAT, SO FAR AS "CONSISTENT
WITH THE PROVISIONS" OF SEC. 77, THE "DUTIES OF THE DEBTOR" AND THE
"RIGHTS AND LIABILITIES OF CREDITORS" SHALL BE THE SAME AS IF A
VOLUNTARY ADJUDICATION HAD BEEN MADE.  WE CANNOT SAY THAT THE
FORFEITURE PROVISIONS OF SEC. 70(B) ON THEIR FACE ARE INCONSISTENT WITH
SEC. 77.  THEY EMBRACE LEASES OF ALL KINDS AND SORTS.  THEY INCLUDE
LEASES OF RAILROAD TRACKS AND FACILITIES BUT THEY ARE NOT RESTRICTED TO
THEM.  BUT IF SEC. 70(B) IS APPLICABLE TO SOME LEASES UNDER SEC. 77, IT
WOULD SEEM TO BE APPLICABLE TO ALL.  AND TERMINATION OF LEASES WOULD,
IN MANY CASES AT LEAST, BE AS CONSISTENT WITH REORGANIZATIONS OF
RAILROADS UNDER SEC. 77 AS IT WOULD WITH REORGANIZATIONS OF OTHER
ENTERPRISES UNDER CH. X. SEC. 70(B) IS APPLICABLE TO REORGANIZATIONS
UNDER CH. X AS WE HELD IN FINN V. MEIGHAN, SUPRA.  AS WE POINTED OUT IN
THAT CASE, AN EXPRESS COVENANT OF FORFEITURE HAS LONG BEEN HELD TO BE
ENFORCEABLE AGAINST THE BANKRUPTCY TRUSTEE.  THAT REPRESENTS THE
BANKRUPTCY RULE.  AND WE FIND NO PROVISION IN SEC. 77 WHICH SUGGESTS
THAT CONGRESS INTENDED TO MAKE THAT RULE INAPPLICABLE IN CASE OF
RAILROAD REORGANIZATIONS. 

IT IS ARGUED, HOWEVER, THAT THE COVENANT IN THE PRESENT LEASE IS NOT
OF THE KIND WHICH IS ENFORCEABLE UNDER SEC. 70(B).  IN OTHER WORDS, IT
IS SAID NOT TO BE "AN EXPRESS COVENANT THAT AN ASSIGNMENT BY OPERATION
OF LAW OR THE BANKRUPTCY" OF THE LESSEE SHALL "TERMINATE" OR GIVE THE
LESSOR "AN ELECTION TO TERMINATE" THE LEASE. 

THESE FORFEITURE CLAUSES ARE TO BE LIBERALLY CONSTRUED IN FAVOR OF
THE BANKRUPTCY LESSEE.  FINN V. MEIGHAN, SUPRA.  YET THE COVENANT IN
QUESTION, SO CONSTRUED, SEEMS TO US TO FALL WITHIN SEC. 70(B).  IT
APPLIES TO ANY "TRANSFER" OF THE PREMISES "IN ANY PROCEEDING, WHETHER
AT LAW OR IN EQUITY OR OTHERWISE," TO WHICH THE LESSEE IS A PARTY,
"WHEREBY ANY OF THE RIGHTS, DUTIES AND OBLIGATIONS" OF THE LESSEE ARE
"TRANSFERRED, ENCUMBERED, ABROGATED OR IN ANY MANNER ALTERED" WITHOUT
THE LESSOR'S CONSENT.  WHEN THE TRUSTEE ADOPTED THE LEASE, THE LESSEE'S
INTEREST WAS TRANSFERRED TO HIM.  PALMER V. PALMER, 104 F.2D 161.  THAT
TRANSFER, BEING IN A SEC. 77 PROCEEDING, WAS MADE IN A "PROCEEDING,
WHETHER AT LAW OR IN EQUITY OR OTHERWISE."  THE LESSEE WAS A PARTY TO
THE PROCEEDING.  AND BY THE ADOPTION THE TRUSTEE ACQUIRED SUCH RIGHTS
AND OBLIGATIONS UNDER THE LEASE AS THE LESSEE HAD. 

BUT THE QUESTION REMAINS WHETHER ENFORCEMENT OF THE FORFEITURE CLAUSE
WOULD BE "CONSISTENT WITH THE PROVISIONS" OF SEC. 77 WITHIN THE MEANING
OF SEC. 77(1).  THAT QUESTION DOES NOT SEEM TO HAVE BEEN CONSIDERED BY
THE LOWER COURTS.  OUR VIEW IS THAT IT PRESENTS PROBLEMS PRIMARILY FOR
CONSIDERATION AND DECISION BY THE INTERSTATE COMMERCE COMMISSION AND
THAT THE REORGANIZATION COURT SHOULD NOT HAVE DECLARED A FORFEITURE OF
THE LEASE UNTIL THE QUESTIONS HAD BEEN PASSED UPON BY THE COMMISSION. 
THERE ARE TWO ASPECTS OF THAT PROBLEM.  THE FIRST RELATES TO
ABANDONMENT OF OPERATIONS BY THE TRUSTEE. 

THE DISTRICT COURT TERMINATED THE LEASE AND AUTHORIZED THE LESSOR TO
REENTER UPON THE PREMISES AND TO OUST THE DEBTOR AND THE TRUSTEE.  THIS
ORDER FOLLOWED AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
DISMISSING AN APPLICATION MADE BY RESPONDENT TO RESUME OPERATIONS OF
THE PROPERTIES.  THE APPLICATION WAS DISMISSED BECAUSE THE COMMISSION
WAS OF THE VIEW THAT NO CERTIFICATE FROM IT WAS NEEDED.  IT RULED THAT
THE LESSOR'S "OBLIGATIONS AND DUTIES TO THE PUBLIC HAVE NEVER CEASED
BUT HAVE MERELY BEEN PERFORMED BY THE LESSEE FOR ITS BENEFIT, AND WHEN
THE LATTER FOR ANY REASON NO LONGER CAN PERFORM SUCH OBLIGATIONS, THE
DUTIES MUST BE PERFORMED BY THE LESSOR ON ITS OWN BEHALF."  257 I.C.C.
739, 744.  AND THE COMMISSION ADDED, "IF AND WHEN THE LEASE IS
TERMINATED AND THE PROPERTY REVERTS TO THE APPLICANT, IT WILL HAVE NO
ALTERNATIVE BUT TO RESUME OPERATION THEREOF."  ID., P. 744. 

BUT THAT CASE ONLY HELD THAT THE LESSOR NEEDED NO CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY UNDER SEC. 1(18) TO OPERATE THE ROAD,
AS, IF, AND WHEN THE LESSEE OR ITS TRUSTEE CEASED OPERATIONS.  IT DID
NOT PRESENT THE QUESTION WHETHER OPERATIONS BY THE LESSEE OR ITS
TRUSTEE MIGHT BE ABANDONED.  NO APPLICATION FOR ABANDONMENT OF
OPERATIONS BY THE LESSEE OR ITS TRUSTEE WAS BEFORE THE COMMISSION. 
AUTHORITY OF A LESSOR TO RESUME OPERATIONS IF THE LESSEE OR ITS TRUSTEE
ABANDONS IS ONE THING; AUTHORITY OF THE LESSEE OR ITS TRUSTEE TO
ABANDON IS QUITE DIFFERENT. 

SEC. 1(18) OF THE INTERSTATE COMMERCE ACT PROVIDES IN PART: 

"...  NO CARRIER BY RAILROAD SUBJECT TO THIS CHAPTER SHALL ABANDON
ALL OR ANY PORTION OF A LINE OF RAILROAD, OR THE OPERATION THEREOF,
UNLESS AND UNTIL THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE
COMMISSION A CERTIFICATE THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE
AND NECESSITY PERMIT OF SUCH ABANDONMENT." 

IN THOMPSON V. TEXAS MEXICAN R. CO., POST, P. 134, WE HELD THAT A
COMPANY HAVING TRACKAGE RIGHTS OVER THE LINES OF ANOTHER MUST RECEIVE
AUTHORIZATION TO ABANDON THE OPERATIONS.  THAT CASE IS, OF COURSE,
DIFFERENT FROM THE PRESENT ONE BECAUSE IT ENTAILED COMPLETE ABANDONMENT
OF OPERATIONS BY ONE COMPANY OVER ANOTHER'S LINES.  HERE THE QUESTION
IS WHETHER THE LESSEE OR THE LESSOR SHALL PERFORM THE SERVICE.  BUT
SEC. 1(18) PROVIDES THAT "NO CARRIER BY RAILROAD" SHALL ABANDON "THE
OPERATION" OF ALL OR ANY PORTION OF A LINE WITHOUT A CERTIFICATE FROM
THE COMMISSION.  DISCONTINUANCE OF OPERATIONS BY THE TRUSTEE IS
ABANDONMENT OF OPERATIONS BY A CARRIER WITHIN THE MEANING OF SEC.
1(18).  AND A CERTIFICATE IS REQUIRED UNDER SEC. 1(18) WHETHER THE
LESSEE OR THE LESSOR IS ABANDONING OPERATIONS.  SEE LEHIGH VALLEY R.
CO. PROPOSED ABANDONMENT OF OPERATION, 202 I.C.C. 659; NORFOLK SOUTHERN
R. CO. RECEIVERS' ABANDONMENT, 221 I.C.C. 258.  WHETHER THE PUBLIC
INTEREST REQUIRES THAT THE LINE BE OPERATED BY THE LESSEE RATHER THAN
THE LESSOR PRESENTS A QUESTION FOR THE COMMISSION UNDER SEC. 1(18) OF
THE INTERSTATE COMMERCE ACT.  THE LESSOR IS NOT AT THE MERCY OF THE
LESSEE IN THIS SITUATION.  FOR THE LESSOR, AS WELL AS THE LESSEE, HAS
THE STANDING NECESSARY TO INVOKE SEC. 1(18) ON THE QUESTION OF
ABANDONMENT.  THOMPSON V. TEXAS MEXICAN R. CO., SUPRA. 

THE SECOND ASPECT OF THE PROBLEM IS RELATED TO THE FIRST.  IT IS THE
FUNCTION OF THE COMMISSION UNDER SEC. 77 TO PREPARE THE PLAN OF
REORGANIZATION OF THE DEBTOR COMPANY.  SEC. 77(D).  AS WE STATED IN
ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448, 468: 

"THESE REORGANIZATIONS REQUIRE SOMETHING MORE THAN CONTESTS BETWEEN
ADVERSARY INTERESTS TO PRODUCE PLANS WHICH ARE FAIR AND IN THE PUBLIC
INTEREST.  WHEN THE PUBLIC INTEREST, AS DISTINGUISHED FROM PRIVATE,
BULKS LARGE IN THE PROBLEM, THE SOLUTION IS LARGELY A FUNCTION OF THE
LEGISLATIVE AND ADMINISTRATIVE AGENCIES OF GOVERNMENT WITH THEIR
FACILITIES AND EXPERIENCE IN INVESTIGATING ALL ASPECTS OF THE PROBLEM
AND APPRAISING THE GENERAL INTEREST.  CONGRESS OUTLINED THE COURSE
REORGANIZATION IS TO FOLLOW.  IT ESTABLISHED STANDARDS FOR
ADMINISTRATION AND PLACED IN THE HANDS OF THE COMMISSION THE PRIMARY
RESPONSIBILITY FOR THE DEVELOPMENT OF A SUITABLE PLAN.  WHEN EXAMINED
TO LEARN THE PURPOSE OF ITS ENACTMENT, SEC. 77 MANIFESTS THE INTENTION
OF CONGRESS TO PLACE REORGANIZATION UNDER THE LEADERSHIP OF THE
COMMISSION, SUBJECT TO A DEGREE OF PARTICIPATION BY THE COURT."    THE
COMMISSION IN PREPARATION OF THE PLAN IS GUIDED NOT ONLY BY THE
REQUIREMENTS THAT THE PLAN BE FAIR AND EQUITABLE AND FEASIBLE.  IT IS
ALSO CHARGED WITH THE DUTY OF PREPARING A PLAN THAT "WILL BE COMPATIBLE
WITH THE PUBLIC INTEREST."  SEC. 77(D).  WHETHER A LEASED LINE SHOULD
CONTINUE TO BE OPERATED BY THE LESSEE OR SHOULD REVERT TO THE SYSTEM OF
THE LESSOR MAY PRESENT LARGE QUESTIONS BEARING ON THE DEVELOPMENT BY
THE COMMISSION OF AN ADEQUATE TRANSPORTATION SYSTEM.  INTERSTATE
COMMERCE ACT SEC. 1.  MOREOVER, IT APPEARS IN THE PRESENT CASE THAT
FORFEITURE OF THE LEASE WILL DEPRIVE THE DEBTOR OF ALL OF ITS RAILROAD
PROPERTIES N3.  WHETHER A PARTICULAR CARRIER SHOULD GO OUT OF BUSINESS
PRESENTS PROBLEMS OF PRIMARY IMPORTANCE TO ITS SECURITY HOLDERS AND
PERHAPS TO THE PUBLIC INTEREST AS WELL.  IF FORFEITURE OF THE LEASE IS
NOW DECLARED, NO PLAN OF REORGANIZATION MAY BE POSSIBLE.  THE PROBLEM
OF PREPARING A PLAN OF REORGANIZATION WILL OFTEN PRESENT TO THE
COMMISSION DECISIONS CONCERNING THE ADOPTION OR REJECTION OF LEASES. 
THE ADOPTION OF A LEASE BY THE TRUSTEE DOES NOT PRECLUDE REJECTION OF
IT IN THE PLAN OF REORGANIZATION.  SEC. 77(B).  THE SCHEME OF THE ACT
IS, INDEED, TO SETTLE IN THE PLAN OF REORGANIZATION THE VARIOUS CLAIMS
TO THE PROPERTY.  THE COMMISSION MAY DECIDE THAT IT IS IN THE PUBLIC
INTEREST AS WELL AS IN THE INTEREST OF THE PRIVATE CLAIMANTS THAT A
LEASE BE ADOPTED.  IF IT IS ADOPTED, THEN ANY DEFAULTS UNDER IT CAN BE
CURED.  FN4  SEC. 77(B)(5).  OR IT MAY CONCLUDE, AS IT DID IN GROUP OF
INSTITUTIONAL INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., SUPRA, PP.
546-555, THAT A LEASE SHOULD BE REJECTED UNLESS THE LESSOR CONSENTED TO
A REVISION OF ITS TERMS.  OR IT MAY CONCLUDE THAT FORFEITURE OF A LEASE
ACCORDING TO THE PROVISIONS OF SEC. 70(B) WOULD BE COMPATIBLE WITH THE
PUBLIC INTEREST.  AS WE STATED IN PALMER V. MASSACHUSETTS, 308 U.S. 79,
87, "THE JUDICIAL PROCESS IN BANKRUPTCY PROCEEDINGS UNDER SEC. 77 IS,
AS IT WERE, BRIGADED WITH THE ADMINISTRATIVE PROCESS OF THE
COMMISSION."  AND SEE WARREN V. PALMER, 310 U.S. 132.  THE POINT IS
THAT IF THE REORGANIZATION COURT DECREES A FORFEITURE IN ADVANCE OF
CONSIDERATION OF THE PROBLEM BY THE COMMISSION, IT INTERFERES WITH THE
FUNCTIONS ENTRUSTED TO THE COMMISSION UNDER SEC. 77.  FORFEITURE OF A
LEASE IN ACCORDANCE WITH THE PROVISIONS OF SEC. 70(B) MAY BE WHOLLY
CONSISTENT WITH THE PREPARATION OF A PLAN OF REORGANIZATION UNDER SEC.
77.  BUT, AS WE HAVE SAID, THE NATURE OF THE PLAN OF REORGANIZATION TO
BE SUBMITTED IS ENTRUSTED PRIMARILY TO THE COMMISSION.  IF FORFEITURE
OF LEASES CAN BE DECREED WITHOUT PRIOR REFERENCE OF THE MATTER TO THE
COMMISSION, IT MAY BE SERIOUSLY EMBARRASSED IN PREPARING THE PLAN WHICH
IT DEEMS NECESSARY OR DESIRABLE FOR THE REORGANIZATION OF THE DEBTOR. 
FN5  THE FEDERAL POLICY EMBODIED IN SEC. 77 CAN PREVENT ENFORCEMENT OF
THE ENGAGEMENTS OF THE DEBTOR PURSUANT TO THEIR TERMS.  CONTINENTAL
ILLINOIS NATIONAL BANK V. CHICAGO, R.I. & P.R. CO., SUPRA.  CF. OTIS &
CO. V. SECURITIES & EXCHANGE COMMISSION, 323 U.S. 624. 

WE HOLD THAT THE DISTRICT COURT ERRED IN DECLARING THE LEASE
FORFEITED AND THAT THE JUDGMENT SHOULD BE REVERSED AND THE CAUSE
REMANDED.  THE DISTRICT COURT SHOULD STAY ITS HAND PENDING A DECISION
BY THE INTERSTATE COMMERCE COMMISSION ON THE QUESTIONS.  REVERSED. 

FN1  THE DEBTOR HAS TWO ADDITIONAL PIECES OF LAND UNDER 99-YEAR
LEASES, DATED JUNE 19, 1906, FROM THE PARENT COMPANY OF THE
RESPONDENT.  BY A TIE-IN INDENTURE THE DEBTOR AGREED THAT THESE LEASES
SHOULD TERMINATE ON THE EXPIRATION OR EARLIER TERMINATION OF THE MAIN
LEASE MENTIONED IN THE OPINION.  WHAT WE SAY IN THE OPINION ALSO
GOVERNS THESE TIE-IN LEASES. 

FN2  NOTICE WAS ALSO GIVEN BY RESPONDENT'S PARENT COMPANY FOR
TERMINATION OF THE TIE-IN LEASES MENTIONED IN NOTE 1, SUPRA.  THE ORDER
OF THE DISTRICT COURT ALSO TERMINATED THESE LEASES. 

FN3  THE DISTRICT COURT ORDERED THE TRUSTEE TO TURN OVER TO THE
RESPONDENT ALL OF THE PROPERTY HELD OR USED FOR RAILROAD PURPOSES
EXCEPT BANK ACCOUNTS, CASH, ACCOUNTS RECEIVABLE AND THE LIKE.  AMONG
THE PROPERTY WERE SMALL LENGTHS OF LINE WHICH THE DEBTOR CLAIMED TO OWN
IN FEE BUT WHICH THE RESPONDENT ASSERTED SHOULD REVERT TO IT.  THE
ORDER OF THE DISTRICT COURT PROVIDED THAT THE TRUSTEE MIGHT FILE A
CLAIM FOR THAT PROPERTY OR ITS VALUE AND REASONABLE COMPENSATION FOR
ITS USE. 

FN4  SEC. 77(B)(5) PROVIDES IN PART, "A PLAN OF REORGANIZATION WITHIN
THE MEANING OF THIS SECTION  ...  SHALL PROVIDE ADEQUATE MEANS FOR  ...
THE CURING OR WAIVER OF DEFAULTS  ..." 

FN5  FINN V. MEIGHAN, SUPRA, INVOLVED THE FORFEITURE OF A LEASE IN
REORGANIZATION PROCEEDINGS UNDER CH. X. BUT THE PROBLEM THERE WAS NOT
COMPLICATED BY ANY PROVISIONS OF CH. X GIVING TO AN ADMINISTRATIVE
AGENCY THE FUNCTIONS ENTRUSTED TO THE INTERSTATE COMMERCE COMMISSION
UNDER SEC. 77.  AS WE STATED IN PALMER V. MASSACHUSETTS, 308 U.S. 79,
87, "...  THE WHOLE SCHEME OF SEC. 77 LEAVES NO DOUBT THAT CONGRESS DID
NOT MEAN TO GRANT TO THE DISTRICT COURTS THE SAME SCOPE AS TO BANKRUPT
ROADS THAT THEY MAY HAVE IN DEALING WITH OTHER BANKRUPT ESTATES." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :








THOMPSON V. TEXAS MEXICAN R. CO., 328 U.S. 134 


NO. 42.  ARGUED OCTOBER 9, 1945.  - DECIDED APRIL 29, 1946.  - 181
S.W.2D 895, REVERSED. 


1.  BY CONTRACT BETWEEN TWO INTERSTATE RAILROADS, BOTH OF WHICH WERE
SUBJECT TO THE AUTHORITY OF THE INTERSTATE COMMERCE COMMISSION, ONE
OBTAINED TRACKAGE RIGHTS OVER THE LINES OF THE OTHER, AT A SPECIFIED
RENTAL.  THE CONTRACT WAS TERMINABLE BY EITHER PARTY UPON TWELVE
MONTHS' NOTICE.  THE GRANTEE RAILROAD SUBSEQUENTLY PETITIONED FOR
REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY ACT, A TRUSTEE WAS
APPOINTED, AND STAY ORDERS PURSUANT TO SEC. 77(J) WERE ENTERED. 
THEREAFTER THE GRANTOR GAVE NOTICE THAT IT WAS EXERCISING ITS RIGHT TO
TERMINATE THE CONTRACT.  AFTER THE DATE WHEN BY ITS TERMS THE CONTRACT
WOULD THUS HAVE BEEN TERMINATED, THE TRUSTEE CONTINUED TO OPERATE
TRAINS OVER THE LINES OF THE GRANTOR, AND REFUSED TO PAY MORE THAN THE
RENTAL SPECIFIED IN THE CONTRACT.  THEREUPON THE GRANTOR BROUGHT SUIT
IN A STATE COURT TO ENJOIN THE GRANTEE AND ITS TRUSTEE FROM USING THE
TRACKS OF THE GRANTOR WITHOUT THE GRANTOR'S CONSENT, AND TO RECOVER
$500 A DAY DAMAGES FOR SUCH USE OR ALTERNATIVELY THE REASONABLE VALUE
OF THE USE.  THE STATE COURT DENIED AN INJUNCTION; ADJUDGED THAT THE
CONTRACT HAD BEEN TERMINATED; AND AWARDED DAMAGES.  HELD THAT
MAINTENANCE OF THE SUIT IN THE STATE COURT WAS NOT PRECLUDED BY THE
STAY ORDERS ISSUED BY THE BANKRUPTCY COURT NOR BY SEC. 77 OF THE
BANKRUPTCY ACT, BUT THAT THE STATE COURT SHOULD HAVE STAYED ITS HAND
AND REMITTED THE PARTIES TO THE INTERSTATE COMMERCE COMMISSION FOR
DETERMINATION OF THE ADMINISTRATIVE PHASES OF THE QUESTIONS INVOLVED. 
PP. 138, 151. 

(A)  SO FAR AS THE SUIT INVOLVED A MONEY CLAIM AGAINST THE ESTATE FOR
ACTS OF THE TRUSTEE IN OPERATING TRAINS OVER THE GRANTOR'S TRACKS, IT
WAS MAINTAINABLE IN THE STATE COURT UNDER SEC. 66 OF THE JUDICIAL CODE,
WHICH AUTHORIZES SUITS AGAINST THE TRUSTEE, WITHOUT LEAVE OF THE
BANKRUPTCY COURT, "IN RESPECT OF ANY ACT OR TRANSACTION OF HIS IN
CARRYING ON THE BUSINESS."  P. 138. 

(B)  MAINTENANCE OF THE SUIT IN THE STATE COURT IS NOT INCONSISTENT
WITH THE PROVISIONS OF SEC. 77 GRANTING THE REORGANIZATION COURT
EXCLUSIVE JURISDICTION OVER THE DEBTOR AND ITS PROPERTY.  P. 139. 

(C)  THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT IS DETERMINED
BY THE "MAIN PURPOSE" OF THE SUIT, WHICH IN THIS CASE EVIDENTLY WAS AN
ATTEMPT ON THE PART OF THE GRANTOR TO OBTAIN A MORE FAVORABLE RENTAL. 
P. 139. 

(D) THE PRINCIPLE THAT THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY
COURT EXTENDS TO THE ADJUDICATION OF QUESTIONS AFFECTING TITLE IS
INAPPLICABLE HERE, SINCE THE TRACKAGE AGREEMENT CREATED ONLY A PERSONAL
OBLIGATION AND DID NOT PURPORT TO GRANT ANY ESTATE IN THE PROPERTY OF
THE GRANTOR.  P. 140. 

(E)  THE GENERAL RULE IN BANKRUPTCY THAT THE TRUSTEE TAKES THE
CONTRACTS OF THE DEBTOR SUBJECT TO THEIR TERMS AND CONDITIONS IS
APPLICABLE TO PROCEEDINGS UNDER SEC. 77 BY VIRTUE OF THE PROVISIONS OF
SEC. 77(1).  P. 141. 

(F)  THE QUALIFICATION IN SEC. 77(1) THAT THE RULE OF BANKRUPTCY BE
"CONSISTENT WITH THE PROVISIONS" OF SEC. 77 MADE PREMATURE AN
ADJUDICATION BY THE COURT THAT THE CONTRACT WAS TERMINATED, PRIOR TO A
DETERMINATION BY THE INTERSTATE COMMERCE COMMISSION THAT THAT STEP WAS
CONSISTENT WITH THE REORGANIZATION REQUIREMENTS OF THE DEBTOR.  P.
141. 

2.  PRIOR TO RENDITION OF JUDGMENT ON THE MERITS THE DECISION OF THE
INTERSTATE COMMERCE COMMISSION WAS NECESSARY ON CERTAIN PHASES OF THE
CONTROVERSY: 

(1)  WHETHER TERMINATION OF THE TRACKAGE AGREEMENT WOULD INTERFERE
WITH THE PLAN OF REORGANIZATION TO BE FORMULATED BY THE COMMISSION
UNDER SEC. 77 OF THE BANKRUPTCY ACT.  P. 142. 

(2)  WHETHER THE COMMISSION SHOULD ISSUE A CERTIFICATE UNDER SEC.
1(18) OF THE INTERSTATE COMMERCE ACT THAT "THE PRESENT OR FUTURE PUBLIC
CONVENIENCE AND NECESSITY" WOULD PERMIT ABANDONMENT OF OPERATIONS UNDER
THE TRACKAGE AGREEMENT.  P. 144. 

(3)  WHAT WOULD BE A REASONABLE RENTAL TO BE ALLOWED, UNDER SEC.
5(2)(A) OF THE TRANSPORTATION ACT OF 1940, IF THE COMMISSION DECIDED
THAT THE TRACKAGE ARRANGEMENT SHOULD BE CONTINUED.  P. 149. 

3.  UNTIL DETERMINATION BY THE INTERSTATE COMMERCE COMMISSION OF THE
ADMINISTRATIVE PHASES OF THE QUESTIONS INVOLVED IS HAD, IT CAN NOT BE
KNOWN WITH CERTAINTY WHAT ISSUES FOR JUDICIAL DECISION WILL EMERGE;
AND, UNTIL THAT TIME, JUDICIAL ACTION IS PREMATURE.  P. 151. 

THOMPSON, TRUSTEE, ET AL. V. TEXAS MEXICAN RAILWAY CO. 

CERTIORARI TO THE COURT OF CIVIL APPEALS FOR THE FOURTH SUPREME
JUDICIAL DISTRICT OF TEXAS. 

THE RESPONDENT RAILROAD COMPANY BROUGHT SUIT IN A STATE COURT AGAINST
THE PETITIONER RAILROAD COMPANY (WHICH WAS A DEBTOR IN A REORGANIZATION
PROCEEDING UNDER SEC. 77 OF THE BANKRUPTCY ACT) AND ITS TRUSTEE, AND
WAS AWARDED DAMAGES.  THE COURT OF CIVIL APPEALS AFFIRMED.  181 S.W.2D
895.  THE SUPREME COURT OF TEXAS REFUSED AN APPLICATION FOR A WRIT OF
ERROR.  THIS COURT GRANTED CERTIORARI.  324 U.S. 838.  REVERSED, P.
151. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

BROWNSVILLE (THE ST. LOUIS, BROWNSVILLE AND MEXICO RAILWAY CO.)  AND
TEX-MEX (THE TEXAS MEXICAN RAILWAY CO.)  ARE INTERSTATE CARRIERS BY
RAILROAD AND SUBJECT TO THE PROVISIONS OF THE INTERSTATE COMMERCE ACT. 
24 STAT. 379, 41 STAT. 474, 49 STAT. 543, 54 STAT. 899, 49 U.S.C. SEC.
1.  ON NOVEMBER 1, 1904, THEY ENTERED INTO A WRITTEN CONTRACT WHEREBY,
FOR PAYMENT OF SPECIFIED RENTALS, TEX-MEX GRANTED BROWNSVILLE THE RIGHT
TO OPERATE ITS TRAINS OVER THE TRACKS OF TEX-MEX BETWEEN ROBSTOWN AND
CORPUS CHRISTI, TEXAS, AND TO MAKE USE OF TERMINAL FACILITIES OF TEX
MEX AT CORPUS CHRISTI.  THE CONTRACT PROVIDED THAT IT WAS TO CONTINUE
FOR A TERM OF 50 YEARS FROM ITS DATE UNLESS SOONER TERMINATED BY THE
PARTIES.  AND IT CONTAINED THE FOLLOWING PROVISION, "IT IS FURTHER
AGREED THAT THIS CONTRACT MAY BE TERMINATED WITHOUT GIVING ANY REASON
THEREFOR, BY EITHER PARTY, UPON GIVING TWELVE MONTHS NOTICE OF SUCH
INTENT TO TERMINATE THE LEASE." 

IN 1933 BROWNSVILLE FILED ITS PETITION FOR REORGANIZATION UNDER SEC.
77 OF THE BANKRUPTCY ACT.  FN1  THE PETITION WAS APPROVED AND
PETITIONER THOMPSON WAS APPOINTED AS TRUSTEE IN THE PROCEEDING. 
SHORTLY THEREAFTER THE BANKRUPTCY COURT ENTERED STAY ORDERS TO WHICH WE
WILL LATER REFER.  IN OCTOBER 1940 TEX-MEX NOTIFIED PETITIONERS THAT IT
WAS EXERCISING ITS RIGHT TO TERMINATE AND CANCEL THE TRACKAGE CONTRACT,
EFFECTIVE TWELVE MONTHS AFTER NOVEMBER 1, 1940.  THE TRUSTEE, HOWEVER,
CONTINUED TO OPERATE OVER THE TEX-MEX AND TO USE THE TEX-MEX FACILITIES
AFTER NOVEMBER 1, 1941.  TEX-MEX INFORMED HIM THAT A CHARGE OF $500 PER
DAY WOULD BE MADE FOR THE USE OF THESE FACILITIES - AN AMOUNT IN EXCESS
OF THE RENTAL UNDER THE CONTRACT.  THE TRUSTEE REFUSED TO PAY ANY
RENTAL OTHER THAN THAT SPECIFIED IN THE CONTRACT. 

THEREUPON THIS SUIT WAS INSTITUTED BY TEX-MEX IN THE TEXAS COURTS TO
ENJOIN BROWNSVILLE AND ITS TRUSTEE FROM USING THE TRACKS OR OTHER
FACILITIES WITHOUT THE CONSENT OF TEX-MEX AND TO RECOVER $500 A DAY
DAMAGES FOR SUCH USE OR ALTERNATIVELY THE REASONABLE VALUE OF THE USE
OF THE PROPERTY.  THE TRIAL COURT OVERRULED PLEAS TO ITS JURISDICTION
AND TRIED THE CASE ON THE MERITS.  IT DENIED AN INJUNCTION.  IT HELD
THAT THE 1904 CONTRACT HAD BEEN TERMINATED AND AWARDED TEX-MEX DAMAGES
IN THE AMOUNT OF $184,929.85.  THE COURT OF CIVIL APPEALS AFFIRMED. 
FN2  181 S.W.2D 895.  THE SUPREME COURT OF TEXAS REFUSED AN APPLICATION
FOR A WRIT OF ERROR.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE PROBLEMS
IN THE ADMINISTRATION OF THE INTERSTATE COMMERCE ACT AND OF THE
BANKRUPTCY ACT. 

FIRST.  IT IS CONTENDED HERE, AS IT WAS IN THE STATE COURT, THAT THE
MAINTENANCE OF THE PRESENT SUIT IS PRECLUDED BY THE STAY ORDERS ISSUED
BY THE BANKRUPTCY COURT AND BY SEC. 77 OF THE BANKRUPTCY ACT. 

SEC. 66 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 125, AUTHORIZES SUITS
AGAINST THE TRUSTEE, WITHOUT LEAVE OF THE BANKRUPTCY COURT, "IN RESPECT
OF ANY ACT OR TRANSACTION OF HIS IN CARRYING ON THE BUSINESS."  FN3  IN
MCNULTA V. LOCHRIDGE, 141 U.S. 327, 332, THIS STATUTE WAS SAID TO GRANT
AN "UNLIMITED" RIGHT "TO SUE FOR THE ACTS AND TRANSACTIONS" OF THE
ESTATE.  OPERATION OF THE TRAINS IS PLAINLY A PART OF THE TRUSTEE'S
FUNCTIONS.  CLAIMS WHICH ARISE FROM THEIR OPERATION - WHETHER GRADE
CROSSING CLAIMS AS IN MCNULTA V. LOCHRIDGE, SUPRA, OR CLAIMS FOR THE
USE OF THE TRACKS OF ANOTHER AS IN THE PRESENT CASE - ARE CLAIMS BASED
ON ACTS OF THE TRUSTEE IN CONDUCTING THE BUSINESS.  HENCE THIS SUIT, SO
FAR AS IT INVOLVES ONLY A MONEY CLAIM AGAINST THE ESTATE FOR ACTS OF
THE TRUSTEE IN OPERATING TRAINS OVER RESPONDENT'S TRACKS, COULD BE
MAINTAINED IN THE STATE COURTS AGAINST THE TRUSTEE.  FN4  AND THE STAY
ORDERS ENTERED WERE WHOLLY CONSISTENT WITH THIS COURSE.  FN5 

IT IS ARGUED, HOWEVER, THAT THIS SUIT CANNOT BE MAINTAINED
CONSISTENTLY WITH THE PROVISIONS OF SEC. 77 WHICH GRANT THE
REORGANIZATION COURT EXCLUSIVE JURISDICTION OVER THE DEBTOR AND ITS
PROPERTY.  FN6  THE THEORY IS THAT THE SUIT INTERFERES WITH THE
ADMINISTRATION OF THE ESTATE, ADJUDICATES THE TRUSTEE'S INTEREST IN
PROPERTY IN HIS POSSESSION, AND INDEED SEEKS TO DISRUPT THE OPERATING
SCHEDULE OF TRAINS.  IT IS CLEAR THAT THE ISSUANCE OF AN INJUNCTION
AGAINST OPERATION OF THE TRAINS OVER RESPONDENT'S TRACKS WOULD HAVE
BEEN AN INTERFERENCE WITH THE EXCLUSIVE JURISDICTION OF THE
REORGANIZATION COURT.  THE FACT THAT NO INJUNCTION WAS GRANTED IS NOT A
DECISIVE ANSWER.  IN EX PARTE BALDWIN, 291 U.S. 610, 618, THE COURT
HELD THAT THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT IS
DETERMINED BY THE "MAIN PURPOSE" OF THE SUIT.  IN THAT CASE SUIT HAD
BEEN BROUGHT IN THE STATE COURTS TO HAVE A RAILROAD RIGHT OF WAY
DECLARED FORFEITED AND IN ADDITION TO RECOVER DAMAGES.  THE CLAIM FOR
DAMAGES WAS HELD TO BE "MERELY AN INCIDENT" TO THE SUIT FOR A
FORFEITURE AND DID NOT SAVE THE SUIT FROM THE DEFENSE THAT IT WAS OF
THE TYPE WHICH SOUGHT TO INTERFERE WITH THE EXCLUSIVE JURISDICTION OF
THE BANKRUPTCY COURT.  WE DO NOT CONSTRUE THE PRESENT BILL AS HAVING AS
ITS MAIN OBJECT THE STOPPAGE OF THE MOVEMENT OF PETITIONER'S TRAINS
OVER RESPONDENT'S TRACKS.  THE MAIN PURPOSE OF THE SUIT SEEMS TO BE AN
ATTEMPT ON THE PART OF RESPONDENT TO OBTAIN A MORE FAVORABLE RENTAL. 

THE FACT, HOWEVER, THAT RESPONDENT'S SUIT DOES NOT HAVE AS ITS MAIN
PURPOSE THE OUSTER OF PETITIONERS FROM POSSESSION IS NOT A COMPLETE
ANSWER TO THE PLEA TO THE STATE COURT'S JURISDICTION.  AS EX PARTE
BALDWIN, SUPRA, P. 616, HELD, THE EXCLUSIVE JURISDICTION OF THE
BANKRUPTCY COURT IS NOT LIMITED TO PROTECTING THE POSSESSION OF THE
TRUSTEE; IT "EXTENDS ALSO TO THE ADJUDICATION OF QUESTIONS RESPECTING
THE TITLE."  SEE WHITE V. SCHLOERB, 178 U.S. 542; WHITNEY V. WENMAN,
198 U.S. 539.  PETITIONERS ARGUE THAT THE PRESENT CASE COMES WITHIN
THAT PRINCIPLE.  IT IS POINTED OUT THAT THIS SUIT SEEKS THE
CANCELLATION OF THE TRACKAGE AGREEMENT.  IT IS ARGUED THAT THE RIGHTS
GRANTED BROWNSVILLE UNDER THAT AGREEMENT ARE PROPERTY RIGHTS; AND THAT
A SUIT TO CANCEL THE AGREEMENT AND COLLECT AMOUNTS OTHER THAN THE
SPECIFIED RENTALS IS A SUIT WHICH INTERFERES WITH AND ADJUDICATES TITLE
TO THE PROPERTY.  IF WE WERE DEALING HERE WITH A LEASE, A SUIT TO
EFFECT ITS FORFEITURE COULD NOT BE MAINTAINED IN ANOTHER COURT WITHOUT
CONSENT OF THE REORGANIZATION COURT.  BUT THE TRACKAGE AGREEMENT
CREATED ONLY A PERSONAL OBLIGATION AND DID NOT PURPORT TO GRANT
BROWNSVILLE ANY ESTATE IN THE PROPERTY OF TEX-MEX.  SEE DES MOINES &
FT. DODGE R. CO. V. WABASH, ST. L. & P.R. CO., 135 U.S. 576, 583; UNION
PACIFIC R. CO. V. CHICAGO, M. & ST. P.R. CO., 163 U.S. 564, 582-583. 
IT WAS AN EXECUTORY CONTRACT SUBJECT TO TERMINATION ON A SPECIFIED
NOTICE.  THE EXCLUSIVE JURISDICTION OF THE REORGANIZATION COURT WAS A
BARRIER TO ANY ACTION BY ANY OTHER COURT WHICH WOULD DISTURB THE
POSSESSION OF THE TRUSTEE OR INTERFERE IN ANY WAY WITH HIS OPERATION OF
THE BUSINESS.  BUT, APART FROM THE QUALIFICATION TO WHICH WE WILL LATER
REFER, LITIGATION RESTRICTED TO THE AMOUNT DUE UNDER A CONTRACT,
EXPRESS OR IMPLIED, FOR THE USE BY THE TRUSTEE OF ANOTHER'S PROPERTY NO
MORE INTERFERES WITH THE ADMINISTRATION OF THE ESTATE THAN SUITS TO
DETERMINE HIS LIABILITY UNDER CONTRACTS CALLING FOR THE DELIVERY OF
COAL OR OTHER SUPPLIES.  IN EACH THE CLAIM IS REDUCED TO JUDGMENT AND
MAY THEN BE PRESENTED TO THE BANKRUPTCY COURT FOR PROOF AND ALLOWANCE. 
CANCELLATION OF A CONTRACT PURSUANT TO ITS TERMS ALTERS, OF COURSE,
RIGHTS AND DUTIES OF THE TRUSTEE.  BUT THE BANKRUPTCY RULE IS THAT HE
TAKES THE CONTRACTS OF THE DEBTOR SUBJECT TO THEIR TERMS AND
CONDITIONS.  CONTRACTS ADOPTED BY HIM ARE ASSUMED CUM ONERE.  FN7  THE
GENERAL RULE IS (1) THAT IF THE OTHER PARTY HAD A RIGHT TO TERMINATE
THE ARRANGEMENT, THAT RIGHT SURVIVES ADOPTION OF THE CONTRACT BY THE
TRUSTEE; AND (2) THAT THE INCIDENCE OF TERMINATION, EXCEPT AS IT
INTERFERES WITH THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT, MAY
BE LITIGATED IN ANY COURT WHERE THE TRUSTEE MAY BE SUED.  THAT RULE OF
BANKRUPTCY IS APPLICABLE TO PROCEEDINGS UNDER SEC. 77 BY REASON OF SEC.
77(1) WHICH PROVIDES: 

"IN PROCEEDINGS UNDER THIS SECTION AND CONSISTENT WITH THE PROVISIONS
THEREOF, THE JURISDICTION AND POWERS OF THE COURT, THE DUTIES OF THE
DEBTOR AND THE RIGHTS AND LIABILITIES OF CREDITORS, AND OF ALL PERSONS
WITH RESPECT TO THE DEBTOR AND ITS PROPERTY, SHALL BE THE SAME AS IF A
VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN FILED AND A DECREE OF
ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE DEBTOR'S PETITION WAS
FILED." 

BUT, AS WE SHALL SEE, THE QUALIFICATION IN SEC. 77(1) THAT THE RULE
OF BANKRUPTCY BE "CONSISTENT WITH THE PROVISIONS" OF SEC. 77 MADE
PREMATURE AN ADJUDICATION BY THE COURT THAT THE CONTRACT WAS
TERMINATED, PRIOR TO A DETERMINATION BY THE INTERSTATE COMMERCE
COMMISSION THAT THAT STEP WAS CONSISTENT WITH THE REORGANIZATION
REQUIREMENTS OF THE DEBTOR. 

SECOND.  PRIOR TO THE RENDITION OF JUDGMENT ON THE MERITS, THE
DECISION OF THE INTERSTATE COMMERCE COMMISSION WAS NECESSARY ON TWO
PHASES OF THE CONTROVERSY - ONE UNDER SEC. 77 OF THE BANKRUPTCY ACT,
THE OTHER UNDER PROVISIONS OF THE INTERSTATE COMMERCE ACT. 

(1)  AS WE HAVE SAID, THE RIGHT TO TERMINATE A CONTRACT PURSUANT TO
ITS TERMS SURVIVES THE BANKRUPTCY OF THE OTHER CONTRACTING PARTY.  AND
THAT GENERAL BANKRUPTCY RULE IS APPLICABLE IN SEC. 77 PROCEEDINGS BY
REASON OF SEC. 77(1), WHICH, AS WE HAVE SAID, INCORPORATES INTO SEC. 77
THE RULES GOVERNING THE DUTIES OF DEBTORS AND THE RIGHTS AND
LIABILITIES OF CREDITORS SO FAR AS THEY ARE "CONSISTENT WITH THE
PROVISIONS" OF SEC. 77.  WE HAVE CONSIDERED THE MEANING OF THAT
QUALIFICATION IN SMITH V. HOBOKEN RAILROAD, W. & S.C. CO., ANTE, P.
123.  WE THERE HELD THAT A COVENANT OF FORFEITURE IN A LEASE OF
RAILROAD TRACKS AND FACILITIES SHOULD NOT BE ENFORCED BY THE BANKRUPTCY
COURT PRIOR TO A DETERMINATION BY THE COMMISSION THAT SUCH STEP WOULD
BE CONSISTENT WITH THE REORGANIZATION REQUIREMENTS OF THE DEBTOR.  THE
COMMISSION HAS THE PRIMARY RESPONSIBILITY FOR FORMULATING PLANS OF
REORGANIZATION UNDER SEC. 77.  SEE SEC. 77(D).  FORFEITURE OF LEASES BY
THE COURT IN ADVANCE OF A DETERMINATION BY THE COMMISSION OF THE NATURE
OF THE PLAN OF REORGANIZATION WHICH IS NECESSARY OR DESIRABLE FOR THE
DEBTOR MAY SERIOUSLY INTERFERE WITH THE PERFORMANCE BY THE COMMISSION
OF THE FUNCTIONS ENTRUSTED TO IT. 

WE THINK THAT THE SAME CONSIDERATIONS ARE APPLICABLE TO A
DETERMINATION THAT THE TRACKAGE AGREEMENT IN THIS CASE SHOULD BE
TERMINATED PENDING FORMULATION OF A REORGANIZATION PLAN.  BY SEC. 77(B)
THE PLAN OF REORGANIZATION MAY ADOPT OR REJECT EXECUTORY CONTRACTS OF
THE DEBTOR AS WELL AS UNEXPIRED LEASES.  AND THE ADOPTION OF EITHER AN
EXECUTORY CONTRACT OR OF A LEASE BY THE TRUSTEE DOES NOT PRECLUDE A
REJECTION OF IT IN THE PLAN.  MOREOVER, TRACKAGE AGREEMENTS, LIKE
LEASES OF RAILROAD TRACKS AND FACILITIES, ARE MEANS BY WHICH RAILROAD
SYSTEMS HAVE BEEN ASSEMBLED.  THE RETENTION OR THE SLOUGHING OFF OF
TRACKAGE AGREEMENTS MAY ASSUME IMPORTANCE IN THE FASHIONING OF A PLAN
OF REORGANIZATION BY THE COMMISSION.  THE PROBLEM IS KIN TO THAT
INVOLVED IN CONTINENTAL ILLINOIS NATIONAL BANK V. CHICAGO, R.I. & P.R.
CO., 294 U.S. 648.  IN THAT CASE THE COURT SUSTAINED THE POWER OF THE
REORGANIZATION COURT TO ENJOIN UNDER SEC. 77 CREDITORS, WHO HELD
COLLATERAL NOTES OF THE DEBTOR RAILROAD SECURED BY ITS BONDS AND BONDS
OF ITS SUBSIDIARIES, FROM SELLING THE COLLATERAL UNDER A POWER OF SALE
IN THE NOTES, WHERE THE SALE WOULD SO HINDER, OBSTRUCT OR DELAY THE
PLAN OF REORGANIZATION AS WOULD LIKELY DEFEAT IT.  THE COURT STATED (P.
676) THAT A PROCEEDING UNDER SEC. 77 IS A "SPECIAL PROCEEDING WHICH
SEEKS ONLY TO BRING ABOUT A REORGANIZATION, IF A SATISFACTORY PLAN TO
THAT END CAN BE DEVISED.  AND TO PREVENT THE ATTAINMENT OF THAT OBJECT
IS TO DEFEAT THE VERY END THE ACCOMPLISHMENT OF WHICH WAS THE SOLE AIM
OF THE SECTION, AND THEREBY TO RENDER ITS PROVISIONS FUTILE."  THE
COURT CONCLUDED, IN VIEW OF THE COMPLEXITY OF THE PROBLEMS INVOLVED IN
THE REORGANIZATION, "THAT WITHOUT THE MAINTENANCE OF THE STATUS QUO FOR
A REASONABLE LENGTH OF TIME NO SATISFACTORY PLAN COULD BE WORKED OUT." 
P. 679. 

THAT DECISION PREVENTED IN THE INTERESTS OF A REORGANIZATION THE
ENFORCEMENT OF THE PROVISIONS OF THE CONTRACTS OF THE DEBTOR ACCORDING
TO THEIR TERMS.  WE THINK LIKE REASONS MAKE IT IMPORTANT THAT THE
STATUS QUO OF THIS TRACKAGE AGREEMENT BE MAINTAINED PENDING DECISION BY
THE COMMISSION AS TO THE PROPER TREATMENT OF IT IN THE REORGANIZATION
PLAN.  THE COMMISSION MAY DECIDE THAT IT SHOULD BE ADOPTED.  OR THE
COMMISSION MAY CONCLUDE THAT THE TRACKAGE AGREEMENT SHOULD BE REJECTED
OR THAT ITS TERMINATION PURSUANT TO ITS TERMS SHOULD BE ALLOWED.  THESE
MATTERS INVOLVE NOT ONLY THE INTERESTS OF THE TWO PARTIES TO THE
TRACKAGE AGREEMENT BUT PHASES OF THE PUBLIC INTEREST AS WELL.  A COURT
WHICH ENFORCED THE TERMINATION CLAUSE OF THE AGREEMENT PURSUANT TO ITS
TERMS WOULD BE NARROWING THE CHOICE OF THE COMMISSION AND PERHAPS
EMBARRASSING IT IN THE PERFORMANCE OF THE FUNCTIONS WITH WHICH IT HAS
BEEN ENTRUSTED.  FOR THESE AND LIKE REASONS WHICH WE HAVE DISCUSSED IN
SMITH V. HOBOKEN RAILROAD, W. & S.C. CO., ANTE, P. 123, WE THINK THE
COURT ERRED IN HOLDING THAT THE TRACKAGE AGREEMENT HAD BEEN OR SHOULD
BE TERMINATED.    (2)  THE COMMISSION HAS FURTHER FUNCTIONS TO PERFORM
APART FROM DETERMINING UNDER SEC. 77 WHETHER IT WOULD BE CONSISTENT
WITH THE REORGANIZATION REQUIREMENTS OF THE DEBTOR TO TERMINATE THE
TRACKAGE AGREEMENT. 

BY SEC. 1(18) OF THE INTERSTATE COMMERCE ACT IT IS PROVIDED THAT "NO
CARRIER BY RAILROAD SUBJECT TO THIS CHAPTER SHALL ABANDON ALL OR ANY
PORTION OF A LINE OF RAILROAD, OR THE OPERATION THEREOF, UNLESS AND
UNTIL THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE COMMISSION A
CERTIFICATE THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY
PERMIT OF SUCH ABANDONMENT."  CARRIERS BEING REORGANIZED UNDER SEC. 77
OF THE BANKRUPTCY ACT ARE NOT EXEMPT FROM THAT PROVISION.  SEC. 77(O),
11 U.S.C. SEC. 205(O); WARREN V. PALMER, 310 U.S. 132, 137-138. 
WHATEVER MAY BE THE POWERS OF THE COMMISSION UNDER THE INTERSTATE
COMMERCE ACT, RATHER THAN SEC. 77, OVER THE TERMS OF THE TRACKAGE
AGREEMENT (ABANDONMENT OF CHICAGO, R.I. & P.R. CO., 131 I.C.C. 421;
KANSAS CITY SOUTHERN R. CO. V. KANSAS CITY TERMINAL R. CO., 211 I.C.C.
291), IT IS CLEAR THAT THE COMMISSION HAS JURISDICTION OVER THE
OPERATIONS.  SEC. 1(18) EMBRACES OPERATIONS UNDER TRACKAGE CONTRACTS,
AS WELL AS OTHER TYPES OF OPERATIONS.  SEE CHICAGO & ALTON R. CO. V.
TOLEDO, P. & W.R. CO., 146 I.C.C. 171, 179-181.  AND THE FACT THAT THE
TRACKAGE CONTRACT WAS ENTERED INTO IN 1904 PRIOR TO THE PASSAGE OF THE
ACT IS IMMATERIAL; THE PROVISIONS OF THE ACT, INCLUDING SEC. 1(18), ARE
APPLICABLE TO CONTRACTS MADE BEFORE AS WELL AS AFTER ITS ENACTMENT. 
SEE LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY, 219 U.S. 467, 482. 
THOUGH THE CONTRACT WERE TERMINATED PURSUANT TO ITS TERMS, A
CERTIFICATE WOULD STILL BE REQUIRED UNDER SEC. 1(18).  BROWNSVILLE OR
ITS TRUSTEE COULD, OF COURSE, MAKE THE APPLICATION FOR ABANDONMENT OF
OPERATIONS.  BUT THE FACT THAT THEY MIGHT BE CONTENT WITH THE EXISTING
ARRANGEMENT AND FAIL OR REFUSE TO MOVE DOES NOT MEAN THAT TEX-MEX WOULD
BE BURDENED WITH A TRACKAGE ARRANGEMENT IN PERPETUITY.  TEX-MEX MIGHT
INVOKE THE COMMISSION'S JURISDICTION UNDER SEC. 1(18) AND MAKE
APPLICATION FOR ABANDONMENT OF OPERATIONS BY BROWNSVILLE OR ITS
TRUSTEE.  THERE IS NO REQUIREMENT IN SEC. 1(18) THAT THE APPLICATION BE
MADE BY THE CARRIER WHOSE OPERATIONS ARE SOUGHT TO BE ABANDONED.  IT
HAS BEEN RECOGNIZED THAT PERSONS OTHER THAN CARRIERS "WHO HAVE A PROPER
INTEREST IN THE SUBJECT MATTER" MAY TAKE THE INITIATIVE.  FN8  SEE
ATCHISON, T. & S.F.R. CO. V. RAILROAD COMMISSION, 283 U.S. 380, 393
394.  AN APPLICATION BY A CITY AND COUNTY FOR ABANDONMENT OF A PART OF
THE COLORADO & SOUTHERN LINE WAS INDEED ENTERTAINED.  COLORADO &
SOUTHERN R. CO. ABANDONMENT, 166 I.C.C. 470.  TEX-MEX HAS EVEN A MORE
IMMEDIATE INTEREST IN THE OPERATIONS OVER THIS LINE.  ITS PROPERTY IS
INVOLVED; AND THE AMOUNT BEING PAID FOR THE USE OF ITS PROPERTY IS
DEEMED BY IT INSUFFICIENT.  THE COMMISSION IS AS MUCH CONCERNED WITH
ITS FINANCIAL CONDITION AS IT IS WITH THAT OF BROWNSVILLE.  TEX-MEX
THEREFORE HAS THE STANDING NECESSARY TO INVOKE SEC. 1(18). 

TEX-MEX, HOWEVER, POINTS OUT THAT IN 1941 IT MADE APPLICATION TO THE
COMMISSION "FOR AUTHORITY TO CANCEL TRACKAGE AGREEMENTS" WITH
BROWNSVILLE AND THAT THE SECRETARY OF THE COMMISSION RETURNED THE
APPLICATION SAYING "THE COMMISSION IS WITHOUT AUTHORITY TO CONSIDER AN
APPLICATION OF THE NATURE SUBMITTED BY YOU.  ITS JURISDICTION UNDER
ABANDONMENT OF OPERATION BY THE ST. LOUIS, BROWNSVILLE & MEXICO RAILWAY
COMPANY."  WE NEED NOT CONSIDER WHETHER THE APPLICATION WAS IN PROPER
FORM FOR ONE AUTHORIZING AND REQUIRING ABANDONMENT OF OPERATIONS BY
BROWNSVILLE.  IN ANY EVENT, THE SECRETARY OF THE COMMISSION WAS WITHOUT
AUTHORITY TO BIND THE COMMISSION IN THE MATTER.  CF. MINNEAPOLIS & ST.
LOUIS R. CO. V. PEORIA & P.U.R. CO., 270 U.S. 580, 585. 

(3)  THE JURISDICTION OF THE COMMISSION IS NOT RESTRICTED, HOWEVER,
TO DETERMINING WHETHER OR NO OPERATIONS OF BROWNSVILLE OVER THE TRACKS
OF TEX-MEX SHOULD BE ABANDONED.  PRIOR TO THE TRANSPORTATION ACT OF
1940 THE COMMISSION HAD SOME JURISDICTION OVER TRACKAGE AGREEMENTS OF
THE CHARACTER INVOLVED IN THIS CASE.  TRANSIT COMMISSION V. UNITED
STATES, 289 U.S. 121.  BUT BY THAT ACT THE COMMISSION RECEIVED NEW,
EXPLICIT POWERS OVER TRACKAGE RIGHTS.  SEC. 5(2)(A)(II) PROVIDES: "IT
SHALL BE LAWFUL, WITH THE APPROVAL AND AUTHORIZATION OF THE COMMISSION,
AS PROVIDED IN SUBDIVISION (B)  ...  FOR A CARRIER BY RAILROAD TO
ACQUIRE TRACKAGE RIGHTS OVER, OR JOINT OWNERSHIP IN OR JOINT USE OF,
ANY RAILROAD LINE OR LINES OWNED OR OPERATED BY ANY OTHER SUCH CARRIER,
AND TERMINALS INCIDENTAL THERETO."  TRACKAGE RIGHTS ACQUIRED WITHOUT
THE CONSENT AND APPROVAL OF THE COMMISSION ARE UNLAWFUL.  SEC. 5(4). 

THE AUTHORITY OF THE COMMISSION UNDER SEC. 5(2)(A) EXTENDS TO FIXING
TERMS AND CONDITIONS, INCLUDING RENTALS, FOR ANY TRACKAGE AGREEMENTS
ENTERED INTO SUBSEQUENT TO THE EFFECTIVE DATE OF THE TRANSPORTATION ACT
OF 1940.  IF, THEREFORE, THE TWO CARRIERS HAD VOLUNTARILY TERMINATED
THE 1904 TRACKAGE CONTRACT AND HAD ENTERED INTO A NEW ONE WITHOUT THE
APPROVAL OF THE COMMISSION, THEY WOULD HAVE VIOLATED THE ACT.  THERE
WOULD BE NO DIFFERENCE IN RESULT MERELY BECAUSE THE TRACKAGE CONTRACT
EXPIRED BY ITS TERMS OR WAS TERMINATED BY OPERATION OF AN ESCAPE
CLAUSE.  UNTIL ABANDONMENT IS AUTHORIZED, OPERATIONS MUST CONTINUE. 
WHILE THEY CONTINUE, TRACKAGE RIGHTS ARE BEING ENJOYED.  IN ABSENCE OF
ADMINISTRATIVE CONTROL, THE LAW WOULD UNDER THOSE CIRCUMSTANCES IMPLY A
CONTRACT FOR THE USE OF ANOTHER'S PROPERTY AND AWARD REASONABLE
COMPENSATION.  THUS TRACKAGE RIGHTS WOULD BE ACQUIRED ON SUCH TERMS AS
THE COURT AND JURY DETERMINED.  BUT SEC. 5(2)(A) VESTS IN THE
COMMISSION, NOT THE COURTS, THE POWER TO DETERMINE THE TERMS AND
CONDITIONS UNDER WHICH TRACKAGE RIGHTS MAY BE ACQUIRED.  THE
JURISDICTION OF THE COMMISSION IS EXCLUSIVE.  TRANSIT COMMISSION V.
UNITED STATES, SUPRA.  IN THAT CASE THE COMMISSION HAD APPROVED A
TRACKAGE AGREEMENT BETWEEN TWO CARRIERS AND THE COURT HELD THAT THE
COMMISSION'S JURISDICTION BEING EXCLUSIVE, APPROVAL BY A STATE
COMMISSION WAS NOT NECESSARY.  THE COURT BELOW THOUGHT THAT CASE WAS
NOT CONTROLLING HERE, IN VIEW OF THE FACT THAT THE INTERSTATE COMMERCE
COMMISSION HAD NOT ACTED.  BUT IN A LONG LINE OF CASES BEGINNING WITH
TEXAS & PACIFIC R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, IT HAS
BEEN HELD THAT WHERE THE REASONABLENESS OR LEGALITY OF THE PRACTICES OF
THE PARTIES WAS SUBJECT TO THE ADMINISTRATIVE AUTHORITY OF THE
INTERSTATE COMMERCE COMMISSION, THE COURT SHOULD STAY ITS HAND UNTIL
THE COMMISSION HAD PASSED ON THE MATTER.  SEE GENERAL AMERICAN TANK CAR
CORP. V. EL DORADO TERMINAL CO., 308 U.S. 422, AND CASES CITED.  THAT
COURSE IS SINGULARLY APPROPRIATE HERE.  IT IS THE FUNCTION OF THE
COMMISSION TO DETERMINE THE TERMS AND CONDITIONS UNDER WHICH TRACKAGE
RIGHTS ARE ACQUIRED.  IF THE PARTIES WERE ALLOWED TO BY-PASS THE
COMMISSION AND LITIGATE THE QUESTION IN THE COURTS, THE POWER TO FIX
THE RENTAL UNDER TRACKAGE AGREEMENTS WOULD BE SHIFTED FROM THE
COMMISSION TO THE COURTS AND JURIES.  MOREOVER, ONE JURY WOULD
DETERMINE THE AMOUNT OF COMPENSATION DUE FOR THE PERIOD HERE IN
QUESTION AND ANOTHER JURY THE AMOUNT DUE FOR A SUBSEQUENT PERIOD.  BUT
A MAJOR CONCERN OF CONGRESS IN DEALING WITH THIS PROBLEM WAS THAT
NEITHER INADEQUATE RENTALS NOR EXTORTIONATE NOR UNREASONABLE EXACTIONS
WOULD BE MADE FOR TRACKAGE RIGHTS.  TRANSIT COMMISSION V. UNITED
STATES, SUPRA, P. 128.  THOSE QUESTIONS INTIMATELY RELATE TO THE
FINANCIAL STRENGTH OF CARRIERS.  AND IT IS ONE OF THE COMMISSION'S HIGH
FUNCTIONS TO PROTECT THE PUBLIC INTEREST AGAINST UNFAIR OR OPPRESSIVE
FINANCIAL PRACTICES WHICH IN THE PAST LED TO SUCH GREAT HAVOC AND
DISASTER.  THAT POLICY WOULD BE UNDERMINED IF THE CARRIERS COULD REPAIR
TO COURTS FOR DETERMINATION OF THE CONDITIONS UNDER WHICH TRACKAGE
RIGHTS COULD BE SECURED.  THEN JURY VERDICTS OR SETTLEMENTS WOULD TAKE
THE PLACE OF THE EXPERT AND INFORMED JUDGMENT OF THE COMMISSION. 

IT IS SUGGESTED, HOWEVER, THAT THE COMMISSION IS EMPOWERED TO FIX THE
RENTAL ONLY FOR THE FUTURE AND THAT IT HAS NO POWER TO MAKE AN AWARD
WITH RETROACTIVE EFFECT.  BUT ON THIS PHASE OF THE CASE WE ARE NOT
DEALING WITH THE PROBLEM OF REPARATIONS.  IN ANY CASE WHERE APPLICATION
IS MADE FOR TRACKAGE RIGHTS THE TERMS AND CONDITIONS FIXED BY THE
COMMISSION ARE APPLICABLE WHEN THE CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY TAKES EFFECT.  IF OPERATIONS DO NOT START UNTIL THAT
TIME, NO PROBLEM IS PRESENTED.  BUT FREQUENTLY THERE WILL BE
APPLICATIONS FOR RENEWAL OF TRACKAGE AGREEMENTS WHICH HAVE EXPIRED. 
OPERATIONS MAY NOT BE DISCONTINUED UNTIL A CERTIFICATE OF ABANDONMENT
IS OBTAINED.  IF NEW TRACKAGE RIGHTS ARE GRANTED, THEY RUN FROM THE
EXPIRATION OF THE OLD AND THEIR TERMS AND CONDITIONS ARE APPLICABLE TO
THE FULL TERM.  FN9  ONCE THE COMMISSION HAS ACTED, THE COURT MAY THEN
PROCEED TO ENTER JUDGMENT IN CONFORMITY WITH THE TERMS AND CONDITIONS
SPECIFIED BY THE COMMISSION.  SEE EL DORADO OIL WORKS V. UNITED STATES,
328 U.S. 12. 

IT IS ARGUED, HOWEVER, THAT THE TRACKAGE RIGHTS ENVISIONED BY SEC.
5(2)(A) OF THE ACT ARE CONSENSUAL ARRANGEMENTS BETWEEN THE PARTIES; AND
THAT THE COMMISSION IS NOT GRANTED AUTHORITY TO FORCE A TRACKAGE
AGREEMENT ON A CARRIER.  WE DO NOT DECIDE WHAT MAY BE THE FULL REACH OF
THE POWER OF THE COMMISSION UNDER SEC. 5(2)(A).  WE ARE DEALING HERE
WITH AN EXISTING OPERATION, NOT WITH A CASE WHERE ONE CARRIER SEEKS TO
INITIATE A NEW ONE BY ACQUIRING THE RIGHT TO RUN ITS TRAINS OVER THE
TRACKS OF ANOTHER.  THE COMMISSION HAS THE POWER UNDER SEC. 1(18) TO
REFUSE TO ALLOW ABANDONMENT OF THE OPERATIONS.  IF IT SO REFUSES,
TRACKAGE RIGHTS CONTINUE TO BE ENJOYED BY BROWNSVILLE.  THE QUESTION OF
WHAT WOULD BE THE AMOUNT OF A FAIR RENTAL TO BE PAID BY BROWNSVILLE
WOULD BE HIGHLY RELEVANT TO A DECISION BY THE COMMISSION ON THE ISSUE
OF ABANDONMENT.  WE CONCLUDE THAT AT LEAST IN THAT SITUATION THE
COMMISSION HAS THE POWER UNDER SEC. 5(2) TO FIX A REASONABLE RENTAL FOR
THE USE OF THE FACILITY BY BROWNSVILLE REGARDLESS OF THE CONSENT OF TEX
MEX.  FN10 DENIAL OF THAT POWER TO THE COMMISSION IS NOT REQUIRED BY
THE LANGUAGE OF SEC. 5(2)(A).  AND THIS CONSTRUCTION OF SEC. 5(2)(A) IS
IN HARMONY WITH THE POWER OF THE COMMISSION UNDER SEC. 1(18) TO REFUSE
TO AUTHORIZE THE ABANDONMENT OF OPERATIONS.  IF OPERATIONS MUST
CONTINUE, IT IS MORE CONSISTENT WITH THIS SCHEME OF REGULATION FOR THE
COMMISSION RATHER THAN COURTS OR JURIES TO DETERMINE THE AMOUNT OF THE
RENTAL.  ANY LEGAL, INCLUDING CONSTITUTIONAL, RIGHTS OF TEX-MEX ARE
PROTECTED BY THE REVIEW WHICH CONGRESS HAS GRANTED THE ORDERS OF THE
COMMISSION. 

THIRD.  IF THE COMMISSION GRANTED TRACKAGE RIGHTS, TEX-MEX COULD THEN
RECOVER JUDGMENT, AS WE HAVE SAID, FOR THE AMOUNT OF THE RENTAL FIXED
BY THE COMMISSION.  IF, ON THE OTHER HAND, THE COMMISSION AUTHORIZES
THE OPERATIONS TO BE ABANDONED, IT "MAY ATTACH TO THE ISSUANCE OF THE
CERTIFICATE SUCH TERMS AND CONDITIONS AS IN ITS JUDGMENT THE PUBLIC
CONVENIENCE AND NECESSITY MAY REQUIRE."  SEC. 1(20).  THE COMMISSION
COULD PERMIT ABANDONMENT UNLESS BROWNSVILLE PAID SUCH REASONABLE
COMPENSATION FOR THE USE OF TEX-MEX'S PROPERTY AS THE COMMISSION SHOULD
FIX.  IN THAT CASE, TOO, THE COURT WOULD HAVE AN ADMINISTRATIVE FINDING
AS A GUIDE TO THE JUDGMENT IT WOULD ENTER.  IN CASE ABANDONMENT WERE
AUTHORIZED WITHOUT MORE, RESPONDENT WOULD THEN BE FREE TO MOVE IN THIS
PROCEEDING FOR JUDGMENT AND TO APPLY TO THE BANKRUPTCY COURT FOR
COMPLIANCE WITH THE COMMISSION'S ORDER.  IN ALL THOSE SITUATIONS SUITS
TO RECOVER THE AMOUNTS DUE FOR USE OF THE TRACKS OF TEX-MEX COULD BE
MAINTAINED IN THE STATE COURT  FN11  UNDER THE PRINCIPLES ANNOUNCED IN
CENTRAL NEW ENGLAND R. CO. V. BOSTON & ALBANY R. CO., 279 U.S. 415,
420.  IF, HOWEVER, THE COMMISSION DECIDED THAT THE TRACKAGE AGREEMENT
SHOULD BE DEALT WITH IN THE PLAN, THE STATE COURT WOULD NOT HAVE POWER
TO PROCEED FURTHER.  FOR RESPONDENT'S RIGHTS WOULD BE PROTECTED BY THE
PROVISIONS OF THE PLAN WHICH MAY BE REVIEWED ONLY BY THE REORGANIZATION
COURT.  SEC. 77(E). 

THUS, HOWEVER THE CASE MAY BE VIEWED, THE COURT BELOW SHOULD HAVE
STAYED ITS HAND AND REMITTED THE PARTIES TO THE COMMISSION FOR A
DETERMINATION OF THE ADMINISTRATIVE PHASES OF THE QUESTIONS INVOLVED. 
UNTIL THAT DETERMINATION IS HAD, IT CANNOT BE KNOWN WITH CERTAINTY WHAT
ISSUES FOR JUDICIAL DECISION WILL EMERGE.  UNTIL THAT TIME, JUDICIAL
ACTION IS PREMATURE.  THE JUDGMENT WILL BE REVERSED AND THE CAUSE
REMANDED SO THAT THE CASE MAY BE HELD PENDING THE CONCLUSION OF
APPROPRIATE ADMINISTRATIVE PROCEEDINGS.  REVERSED. 

FN1  THIS PETITION WAS FILED IN THE REORGANIZATION PROCEEDINGS OF THE
MISSOURI PACIFIC R. CO. WHICH OWNED ABOUT 94 PER CENT OF THE VOTING
STOCK OF THE NEW ORLEANS, TEXAS AND MEXICO RY. CO., WHICH IN TURN OWNED
ALL OF THE VOTING STOCK OF BROWNSVILLE. 

FN2  NO COMPLAINT WAS MADE ON APPEAL OF THE DENIAL OF AN INJUNCTION. 

FN3  "EVERY RECEIVER OR MANAGER OF ANY PROPERTY APPOINTED BY ANY
COURT OF THE UNITED STATES MAY BE SUED IN RESPECT OF ANY ACT OR
TRANSACTION OF HIS IN CARRYING ON THE BUSINESS CONNECTED WITH SUCH
PROPERTY, WITHOUT THE PREVIOUS LEAVE OF THE COURT IN WHICH SUCH
RECEIVER OR MANAGER WAS APPOINTED; BUT SUCH SUIT SHALL BE SUBJECT TO
THE GENERAL EQUITY JURISDICTION OF THE COURT IN WHICH SUCH MANAGER OR
RECEIVER WAS APPOINTED SO FAR AS THE SAME MAY BE NECESSARY TO THE ENDS
OF JUSTICE."    FN4  JUDGMENT FOR DAMAGES WAS GRANTED ONLY AGAINST
PETITIONER TRUSTEE; JUDGMENT FOR COSTS WAS GRANTED AGAINST THE TRUSTEE
AND BROWNSVILLE JOINTLY AND SEVERALLY. 

FN5  THE STAY ORDERS AUTHORIZED THE TRUSTEE TO DEFEND ANY SUITS WHICH
MIGHT BE BROUGHT. 

IN VIEW OF OUR DISPOSITION OF THE CASE IT IS UNNECESSARY TO DECIDE AT
THIS TIME WHETHER OR NOT THE SUIT MAY ALSO BE MAINTAINED AGAINST
BROWNSVILLE.  THE STAY ORDER, ENTERED FOR THE BENEFIT OF THE DEBTOR,
FOLLOWED THE PROVISIONS OF SEC. 77(J) OF THE BANKRUPTCY ACT, 49 STAT.
911, 922, 11 U.S.C. SEC. 205(J) AND PROVIDED:  "THAT COMMENCEMENT OR
CONTINUATION OF SUITS AGAINST ANY OF THE DEBTOR COMPANIES IS HEREBY
STAYED AND ENJOINED UNTIL AFTER FINAL DECREE ENTERED IN THESE
PROCEEDINGS, PROVIDED, HOWEVER, THAT SUITS OR CLAIMS FOR DAMAGES CAUSED
BY THE OPERATION OF TRAINS, BUSES, OR OTHER MEANS OF TRANSPORTATION MAY
BE FILED AND PROSECUTED TO JUDGMENT IN ANY COURT OF COMPETENT
JURISDICTION, AND ANY ORDER HERETOFORE STAYING THE PROSECUTION OF ANY
SUCH CAUSES OF ACTION OR APPEAL IS HEREBY VACATED." 

FN6  SEC. 77(A) PROVIDES IN PART:  "IF THE PETITION IS SO APPROVED,
THE COURT IN WHICH SUCH ORDER IS ENTERED SHALL, DURING THE PENDENCY OF
THE PROCEEDINGS UNDER THIS SECTION AND FOR THE PURPOSES THEREOF, HAVE
EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY WHEREVER LOCATED
..." 

FN7  SEE GREIF BROS. COOPERAGE CO. V. MULLINIX, 264 F. 391, 397; 4
COLLIER ON BANKRUPTCY (14TH ED.)  SEC.  70.43. 

FN8  CF. TEXAS & PACIFIC R. CO. V. GULF, C. & S.F.R. CO., 270 U.S.
266, 273, WHICH HOLDS THAT A PARTY IN INTEREST WHO IS OPPOSED TO
CONSTRUCTION OF AN EXTENSION MAY NOT "INITIATE BEFORE THE COMMISSION
ANY PROCEEDING CONCERNING THE PROJECT," HIS REMEDY BEING TO APPEAR IN
OPPOSITION IF APPLICATION IS MADE OR TO SEEK AN INJUNCTION UNDER SEC.
1(20) IF NO APPLICATION IS MADE.  AND SEE POWELL V. UNITED STATES, 300
U.S. 276. 

FN9  THE TERMS AND CONDITIONS APPROVED BY THE COMMISSION IN LONG
ISLAND R. CO. TRACKAGE, 180 I.C.C. 439, AFFIRMED TRANSIT COMMISSION V.
UNITED STATES, 289 U.S. 121, WERE GIVEN RETROACTIVE EFFECT IN THAT
SENSE. 

FN10  THE ARGUMENT IS THAT THE COMMISSION HAS THAT AUTHORITY ONLY
UNDER SEC. 3(5) WHICH GIVES THE COMMISSION AUTHORITY TO REQUIRE THE USE
OF TERMINAL FACILITIES INCLUDING MAIN-LINE TRACKS FOR A REASONABLE
DISTANCE OUTSIDE OF THE TERMINAL. 

SEC. 3(5) PROVIDES:  "IF THE COMMISSION FINDS IT TO BE IN THE PUBLIC
INTEREST AND TO BE PRACTICABLE, WITHOUT SUBSTANTIALLY IMPAIRING THE
ABILITY OF A COMMON CARRIER BY RAILROAD OWNING OR ENTITLED TO THE
ENJOYMENT OF TERMINAL FACILITIES TO HANDLE ITS OWN BUSINESS, IT SHALL
HAVE POWER BY ORDER TO REQUIRE THE USE OF ANY SUCH TERMINAL FACILITIES,
INCLUDING MAIN-LINE TRACK OR TRACKS FOR A REASONABLE DISTANCE OUTSIDE
OF SUCH TERMINAL, OF ANY COMMON CARRIER BY RAILROAD, BY ANOTHER SUCH
CARRIER OR OTHER SUCH CARRIERS, ON SUCH TERMS AND FOR SUCH COMPENSATION
AS THE CARRIERS AFFECTED MAY AGREE UPON, OR, IN THE EVENT OF A FAILURE
TO AGREE, AS THE COMMISSION MAY FIX AS JUST AND REASONABLE FOR THE USE
SO REQUIRED, TO BE ASCERTAINED ON THE PRINCIPLE CONTROLLING
COMPENSATION IN CONDEMNATION PROCEEDINGS.  SUCH COMPENSATION SHALL BE
PAID OR ADEQUATELY SECURED BEFORE THE ENJOYMENT OF THE USE MAY BE
COMMENCED.  IF UNDER THIS PARAGRAPH THE USE OF SUCH TERMINAL FACILITIES
OF ANY CARRIER IS REQUIRED TO BE GIVEN TO ANOTHER CARRIER OR OTHER
CARRIERS, AND THE CARRIER WHOSE TERMINAL FACILITIES ARE REQUIRED TO BE
SO USED IS NOT SATISFIED WITH THE TERMS FIXED FOR SUCH USE, OR IF THE
AMOUNT OF COMPENSATION SO FIXED IS NOT DULY AND PROMPTLY PAID, THE
CARRIER WHOSE TERMINAL FACILITIES HAVE THUS BEEN REQUIRED TO BE GIVEN
TO ANOTHER CARRIER OR OTHER CARRIERS SHALL BE ENTITLED TO RECOVER, BY
SUIT OR ACTION AGAINST SUCH OTHER CARRIER OR CARRIERS, PROPER DAMAGES
FOR ANY INJURIES SUSTAINED BY IT AS THE RESULT OF COMPLIANCE WITH SUCH
REQUIREMENT, OR JUST COMPENSATION FOR SUCH USE, OR BOTH, AS THE CASE
MAY BE." 

FN11  IF THE ORDER OF THE COMMISSION WERE CHALLENGED, ITS REVIEW
COULD OF COURSE BE HAD ONLY IN THE MANNER PROVIDED BY STATUTE.  SEE EL
DORADO OIL WORKS V. UNITED STATES, 328 U.S. 12. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



FIRST IOWA COOP. V. POWER COMM'N, 328 U.S. 152 


NO. 603.  ARGUED MARCH 8, 1946.  - DECIDED APRIL 29, 1946.  - 151 F.2D
20, REVERSED. 


PETITIONER APPLIED TO THE FEDERAL POWER COMMISSION FOR A LICENSE FOR A
POWER PROJECT IN IOWA INVOLVING THE CONSTRUCTION OF A DAM ON A
NAVIGABLE STREAM AND THE DIVERSION OF WATER FROM TWO NAVIGABLE STREAMS
INTO ANOTHER.  SECTION 9(B) OF THE FEDERAL POWER ACT REQUIRES AN
APPLICANT TO SUBMIT SATISFACTORY EVIDENCE OF COMPLIANCE WITH
REQUIREMENTS OF STATE LAWS "WITH RESPECT TO BED AND BANKS AND TO THE
APPROPRIATION, DIVERSION, AND USE OF WATER FOR POWER PURPOSES AND WITH
RESPECT TO THE RIGHT TO ENGAGE IN THE BUSINESS OF DEVELOPING,
TRANSMITTING, AND DISTRIBUTING POWER, AND IN ANY OTHER BUSINESS
NECESSARY TO EFFECT THE PURPOSES OF A LICENSE UNDER THIS ACT." 
PETITIONER SHOWED NO ATTEMPT TO COMPLY WITH IOWA CODE, 1939, CH. 363,
WHICH FORBIDS THE CONSTRUCTION OF DAMS AND THE DIVERSION OF WATER FOR
INDUSTRIAL PURPOSES WITHOUT A PERMIT FROM THE STATE EXECUTIVE COUNCIL
AND AUTHORIZES THE ISSUANCE OF SUCH A PERMIT UPON A FINDING, INTER
ALIA, THAT "ANY WATER TAKEN FROM THE STREAM  ...  IS RETURNED THERETO
AT THE NEAREST PRACTICABLE PLACE."  THE STATE INTERVENED AND URGED THAT
THE APPLICATION BE DENIED BECAUSE PETITIONER DID NOT SUBMIT EVIDENCE OF
ITS COMPLIANCE WITH THE REQUIREMENTS OF THE IOWA CODE FOR A PERMIT FROM
THE STATE EXECUTIVE COUNCIL.  THE COMMISSION FOUND THAT A FEDERAL
LICENSE FOR THE PROJECT WAS REQUIRED UNDER THE FEDERAL POWER ACT AND
THAT THE PROJECT CALLED FOR A PRACTICAL AND REASONABLY ADEQUATE WATER
POWER DEVELOPMENT, WITH CERTAIN RECREATIONAL ADVANTAGES, ALL AT A COST
NOT APPEARING TO BE UNREASONABLE; BUT IT DISMISSED THE APPLICATION
WITHOUT PREJUDICE, ON THE GROUND OF PETITIONER'S FAILURE TO PRESENT
SATISFACTORY EVIDENCE, PURSUANT TO SEC. 9(B), OF COMPLIANCE WITH
REQUIREMENTS OF LAWS OF IOWA REQUIRING A STATE PERMIT.  HELD: 

1.  COMPLIANCE WITH REQUIREMENTS FOR A STATE PERMIT UNDER IOWA CODE,
1939, CH. 363, IS NOT A CONDITION PRECEDENT TO, OR AN ADMINISTRATIVE
PROCEDURE THAT MUST BE EXHAUSTED BEFORE, SECURING A FEDERAL LICENSE. 
PP. 163, 170, 182. 

(A)  TO REQUIRE PETITIONER TO SECURE A STATE PERMIT AS A CONDITION
PRECEDENT TO SECURING A FEDERAL LICENSE WOULD VEST IN THE STATE
EXECUTIVE COUNCIL A VETO POWER OVER THE FEDERAL PROJECT WHICH EASILY
COULD DESTROY THE EFFECTIVENESS OF THE FEDERAL ACT AND SUBORDINATE TO
STATE CONTROL THE "COMPREHENSIVE" PLANNING WHICH THE FEDERAL POWER ACT
ENTRUSTS TO THE JUDGMENT OF THE COMMISSION OR OTHER REPRESENTATIVES OF
THE FEDERAL GOVERNMENT.  P. 164. 

(B)  THE ACTION OF THE COMMISSION IN REQUIRING PETITIONER TO PRESENT
SATISFACTORY EVIDENCE OF COMPLIANCE WITH THE REQUIREMENTS FOR A STATE
PERMIT, WHILE NOT REQUIRING IT ACTUALLY TO SECURE A STATE PERMIT,
AVOIDED VESTING A VETO POWER IN THE STATE EXECUTIVE COUNCIL; BUT IT DID
NOT MEET THE SUBSTANCE OF PETITIONER'S OBJECTION, BECAUSE IT SUBJECTED
TO STATE CONTROL THE VERY REQUIREMENTS OF THE PROJECT WHICH CONGRESS
HAS PLACED IN THE DISCRETION OF THE COMMISSION.  P. 165. 

(C)  THE ACT LEAVES TO THE STATES THEIR TRADITIONAL JURISDICTION OVER
PROPERTY RIGHTS TO THE BEDS AND BANKS OF STREAMS AND THE USE OF WATER,
SUBJECT TO THE SUPERIOR RIGHT OF THE FEDERAL GOVERNMENT TO REGULATE
INTERSTATE AND FOREIGN COMMERCE, ADMINISTER PUBLIC LANDS AND
RESERVATIONS OF THE UNITED STATES AND EXERCISE AUTHORITY UNDER
TREATIES.  PP. 171-176. 

(D)  THE INTENTION OF CONGRESS WAS TO SECURE A COMPREHENSIVE
DEVELOPMENT OF NATIONAL RESOURCES AND NOT MERELY TO PREVENT
OBSTRUCTIONS TO NAVIGATION.  PP. 180-181. 

(E)  THE ACT ESTABLISHES A DUAL SYSTEM OF CONTROL BY SEPARATING THOSE
SUBJECTS WHICH REMAIN UNDER THE JURISDICTION OF THE STATES FROM THOSE
WHICH THE CONSTITUTION DELEGATES TO THE UNITED STATES AND OVER WHICH
CONGRESS VESTS THE COMMISSION WITH AUTHORITY TO ACT.  P. 167. 

(F)  WHERE THE FEDERAL GOVERNMENT SUPERSEDES THE STATE GOVERNMENT,
THERE IS NO SUGGESTION THAT BOTH AGENCIES SHALL HAVE FINAL AUTHORITY. 
P. 168. 

(G)  A CONTRARY POLICY IS INDICATED IN SECS. 4(E), 10(A), (B) AND (C)
AND 23(B), WHICH SECTIONS PLACE RESPONSIBILITY SQUARELY UPON FEDERAL
OFFICIALS AND USUALLY UPON THE FEDERAL POWER COMMISSION.  P. 168. 

(H)  THE EXPRESS PROVISION OF SEC. 27 REQUIRING THAT THE ACT BE NOT
CONSTRUED AS AFFECTING THE LAWS OF THE STATES RELATING TO THE CONTROL,
APPROPRIATION, USE, OR DISTRIBUTION OF WATER USED IN IRRIGATION OR FOR
MUNICIPAL OR OTHER USES, OR ANY VESTED RIGHT ACQUIRED THEREIN,
INDICATES THAT SEC. 9(B) SHOULD NOT BE GIVEN A LIKE EFFECT IN THE
ABSENCE OF A SIMILAR PROVISION.  PP. 175-178. 

(I)  SECTION 27, PROTECTING STATE LAWS FROM SUPERSEDURE, IS LIMITED
TO LAWS AS TO THE CONTROL, APPROPRIATION, USE OR DISTRIBUTION OF WATER
IN IRRIGATION OR FOR MUNICIPAL OR OTHER USES OF THE SAME NATURE AND HAS
PRIMARY, IF NOT EXCLUSIVE, REFERENCE TO SUCH PROPRIETARY RIGHTS.  PP.
175, 176. 

(J)  SECTION 9 IS DEVOTED TO SECURING ADEQUATE INFORMATION FOR THE
COMMISSION AS TO PENDING APPLICATIONS FOR LICENSES AND DOES NOT ITSELF
REQUIRE COMPLIANCE WITH ANY STATE LAWS.  PP. 168, 177, 178. 

(K)  THE DETAILED PROVISIONS OF THE ACT PROVIDING A COMPREHENSIVE
PLAN FOR THE DEVELOPMENT AND REGULATION OF THE WATER RESOURCES OF THE
NATION LEAVE NO ROOM OR NEED FOR CONFLICTING STATE CONTROLS.  P. 181. 

(L)  IT IS THE FEDERAL POWER COMMISSION RATHER THAN THE IOWA
EXECUTIVE COUNCIL THAT UNDER OUR CONSTITUTIONAL GOVERNMENT MUST PASS
UPON ISSUES AFFECTING THE USE OF NAVIGABLE WATERS - ON BEHALF OF THE
PEOPLE OF IOWA AS WELL AS ON BEHALF OF ALL OTHERS.  P. 182. 

2.  THE ACTION OF THE COMMISSION WAS ERRONEOUS IN DISMISSING THE
APPLICATION ON THE GROUND OF PETITIONER'S FAILURE TO PRESENT
SATISFACTORY EVIDENCE, PURSUANT TO SEC. 9(B), OF COMPLIANCE WITH
REQUIREMENTS OF LAWS OF IOWA REQUIRING A STATE PERMIT.  PP. 161-167. 

(A)  THE PROJECT IS CLEARLY WITHIN THE JURISDICTION OF THE COMMISSION
UNDER THE FEDERAL POWER ACT.  P. 163. 

(B)  BELIEVING THE IOWA LAW TO BE INAPPLICABLE OR TO HAVE BEEN
SUPERSEDED BY THE FEDERAL POWER ACT, THE COMMISSION WOULD HAVE BEEN
JUSTIFIED IN FOLLOWING ITS OWN INTERPRETATION OF THE FEDERAL POWER ACT
AND PROCEEDING WITH THE MERITS OF THE APPLICATION THEREUNDER, WITHOUT
REQUIRING PETITIONER TO SUBMIT EVIDENCE OF COMPLIANCE WITH SUCH LAWS OF
IOWA.  PP. 160-162. 

(C)  THE COMMISSION'S ACTION IN DISMISSING THE APPLICATION WITHOUT
PREJUDICE DID NOT AVOID PASSING ON THE ISSUE AS TO THE NEED FOR
EVIDENCE OF PETITIONER'S COMPLIANCE WITH THE STATE LAW, BUT CONSTITUTED
A RULING THAT SUCH EVIDENCE WAS ESSENTIAL.  PP. 161-162. 

(D)  A STATE PERMIT NOT BEING REQUIRED, THERE WAS NO JUSTIFICATION
FOR REQUIRING PETITIONER, AS A CONDITION OF SECURING A FEDERAL PERMIT,
TO PRESENT EVIDENCE OF ITS COMPLIANCE WITH THE REQUIREMENTS OF THE
STATE LAW FOR THAT STATE PERMIT.  P. 166. 

(E)  THERE IS AMPLE OPPORTUNITY AND AUTHORITY FOR THE COMMISSION TO
REQUIRE BY REGULATION THE PRESENTATION OF EVIDENCE SATISFACTORY TO IT
OF PETITIONER'S COMPLIANCE WITH ANY OF THE REQUIREMENTS FOR A STATE
PERMIT THAT THE COMMISSION CONSIDERS APPROPRIATE TO EFFECT THE PURPOSES
OF A FEDERAL LICENSE.  P. 167. 

3.  UPON THE REMAND OF THIS APPLICATION TO THE COMMISSION, IT WILL
NOT ACT AS A SUBSTITUTE FOR THE LOCAL AUTHORITIES HAVING JURISDICTION
OVER SUCH QUESTIONS AS THE SUFFICIENCY OF APPLICANT'S LEGAL TITLE TO
RIPARIAN RIGHTS OR THE VALIDITY OF ITS LOCAL FRANCHISES RELATING TO
PROPOSED INTRASTATE PUBLIC UTILITY SERVICE.  P. 178. 

(A)  THE REFERENCES IN SEC. 9(B) TO BEDS AND BANKS OF STREAMS, TO
PROPRIETARY RIGHTS TO DIVERT OR USE WATER, OR TO LEGAL RIGHTS TO ENGAGE
LOCALLY IN THE BUSINESS OF DEVELOPING, TRANSMITTING AND DISTRIBUTING
POWER NEITHER ADD ANYTHING TO NOR DETRACT ANYTHING FROM THE FORCE OF
LOCAL LAWS, IF ANY, ON THOSE SUBJECTS.  P. 178. 

(B)  IN SO FAR AS THOSE LAWS HAVE NOT BEEN SUPERSEDED BY THE FEDERAL
POWER ACT, THEY REMAIN AS APPLICABLE AND EFFECTIVE AS THEY WERE BEFORE
ITS PASSAGE.  P. 178. 

FIRST IOWA HYDRO-ELECTRIC COOPERATIVE V. FEDERAL POWER COMMISSION. 
STATE OF IOWA, INTERVENOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

PETITIONER APPLIED TO THE FEDERAL POWER COMMISSION FOR A LICENSE TO
CONSTRUCT, OPERATE, AND MAINTAIN A POWER PROJECT ON NAVIGABLE WATERS IN
IOWA.  THE STATE INTERVENED AND URGED THAT THE APPLICATION BE DENIED
BECAUSE PETITIONER HAD NOT PRESENTED SATISFACTORY EVIDENCE OF ITS
COMPLIANCE WITH THE REQUIREMENTS OF IOWA CODE, 1939, CH. 363, AS TO THE
ISSUANCE OF A PERMIT BY THE STATE EXECUTIVE COUNCIL.  THE COMMISSION
DISMISSED THE APPLICATION "WITHOUT PREJUDICE TO RENEWAL WITHIN ONE YEAR
UPON SATISFYING THE REQUIREMENTS OF SECTION 9(B) OF THE FEDERAL POWER
ACT."  52 P.U.R. (N.S.)  82.  THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA AFFIRMED.  151 F.2D 20.  THIS COURT GRANTED CERTIORARI.  326
U.S. 715.  REVERSED, P. 183. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE ILLUSTRATES THE INTEGRATION OF FEDERAL AND STATE
JURISDICTIONS IN LICENSING WATER POWER PROJECTS UNDER THE FEDERAL POWER
ACT.  FN1  THE PETITIONER IS THE FIRST IOWA HYDRO-ELECTRIC COOPERATIVE,
A COOPERATIVE ASSOCIATION ORGANIZED UNDER THE LAWS OF IOWA WITH POWER
TO GENERATE, DISTRIBUTE AND SELL ELECTRIC ENERGY.  ON JANUARY 29, 1940,
PURSUANT TO SEC. 23(B) OF THE FEDERAL POWER ACT,  FN2  IT FILED WITH
THE FEDERAL POWER COMMISSION A DECLARATION OF INTENTION TO CONSTRUCT
AND OPERATE A DAM, RESERVOIR AND HYDRO-ELECTRIC POWER PLANT ON THE
CEDAR RIVER, NEAR MOSCOW, IOWA.  FN3 

ON APRIL 2, 1941, IT ALSO FILED WITH THE COMMISSION AN APPLICATION
FOR A LICENSE, UNDER THE FEDERAL POWER ACT, TO CONSTRUCT AN ENLARGED
PROJECT ESSENTIALLY LIKE THE ONE IT NOW WISHES TO BUILD.  THE COST OF
THE ENLARGED PROJECT IS ESTIMATED AT $14,600,000.  IT CALLS FOR AN
8,300 FOOT EARTHEN DAM ON THE CEDAR RIVER NEAR MOSCOW, AN 11,000 ACRE
RESERVOIR AT THAT POINT AND AN EIGHT-MILE DIVERSION CANAL TO A POWER
PLANT TO BE BUILT NEAR MUSCATINE ON THE MISSISSIPPI.  THE CANAL WILL
CREATE TWO OTHER RESERVOIRS TOTALING 2,000 ACRES.  IT IS ALLEGED THAT
THE THREE RESERVOIRS INCIDENTALLY WILL PROVIDE NEEDED RECREATIONAL
FACILITIES.  THE POWER PLANT WILL HAVE FOUR TURBO-GENERATING UNITS WITH
A TOTAL CAPACITY OF 50,000 KW., OPERATING WITH AN AVERAGE HEAD OF 101
FEET OF WATER PROVIDED BY THE FALL FROM THE CANAL TO THE MISSISSIPPI. 
WATER WILL BE PUMPED FROM THE MISSISSIPPI UP TO THE HEAD BAYS OF THE
POWER INTAKE DAM AT THE PLANT TO MEET POSSIBLE SHORTAGES IN SUPPLY. 
THE TAILRACE WILL EXTEND FOR A MILE ALONG THE SHORE OF THE MISSISSIPPI
TO A POINT BELOW DAM 16 ON THAT RIVER.  TRANSMISSION LINES WILL CONNECT
THE PROJECT WITH A SOURCE OF STEAM STANDBY ELECTRIC CURRENT AT
DAVENPORT, IOWA, 24 MILES UP THE MISSISSIPPI.  THE PLANT IS EXPECTED TO
PRODUCE 200,000,000 KWH.  OF MARKETABLE POWER PER YEAR, OF WHICH
151,000,000 KWH.  WILL BE FIRM ENERGY IN AN AVERAGE YEAR.  INTERCHANGE
OF ENERGY IS PROPOSED WITH THE MOLINE-ROCK ISLAND MANUFACTURING COMPANY
NEAR DAVENPORT AND THE PROJECT IS SUGGESTED AS AN ALTERNATIVE TO THE
ADDITION OF A 50,000 KW. UNIT TO THE PLANT OF THAT COMPANY.  THE POWER
WILL BE AVAILABLE ESPECIALLY TO NON-PROFIT RURAL ELECTRIFICATION
COOPERATIVE ASSOCIATIONS AND TO CITIES AND TOWNS IN 35 OR MORE NEARBY
COUNTIES. 

THE CEDAR RIVER RISES IN MINNESOTA AND FLOWS 270 MILES SOUTHEASTERLY
THROUGH IOWA TO MOSCOW, WHICH IS 10 MILES WEST OF THE MISSISSIPPI. 
FROM THERE IT FLOWS SOUTHWESTERLY 29 MILES TO COLUMBUS JUNCTION WHERE
IT JOINS THE IOWA RIVER AND RETURNS SOUTHEASTERLY 28 MILES TO THE
MISSISSIPPI.  THE PROPOSED DIVERSION WILL TAKE ALL BUT ABOUT 25 C.F.S.
OF WATER FROM THE CEDAR RIVER AT MOSCOW.  THIS WILL CORRESPONDINGLY
REDUCE THE FLOW IN THE IOWA RIVER WHILE THE DIVERTED WATER WILL ENTER
THE MISSISSIPPI AT MUCATINE, ABOUT 20 MILES ABOVE ITS PRESENT POINT OF
ENTRY AT THE MOUTH OF THE IOWA RIVER.  THERE ARE NO CITIES OR TOWNS ON
THE CEDAR RIVER BETWEEN MOSCOW AND COLUMBUS JUNCTION AND THE RECORD
INDICATES THAT THE PETITIONER HAS OPTIONS UPON 98% OF THE RIPARIAN
RIGHTS ON THE CEDAR RIVER IN THAT AREA.  AT PETITIONER'S REQUEST, THIS
APPLICATION WAS TREATED AS A SUPPLEMENT TO ITS THEN PENDING DECLARATION
OF INTENTION TO CONSTRUCT THE SMALLER PROJECT. 

ON JUNE 3, 1941, THE COMMISSION MADE THE FOLLOWING FINDINGS: 

"(1)  THAT THE CEDAR AND IOWA RIVERS ARE NAVIGABLE WATERS OF THE
UNITED STATES; 

(2)  THAT THE DIVERSION OF WATER FROM THE CEDAR RIVER BY MEANS OF THE
DIVERSION CANAL AS SET FORTH ABOVE WOULD HAVE A DIRECT AND SUBSTANTIAL
EFFECT UPON THE FLOW AND STAGE OF THE IOWA RIVER AND HENCE WOULD AFFECT
THE NAVIGABLE CAPACITY OF THAT RIVER; 

(3)  THAT THE ALTERNATE WITHHOLDING OF WATER IN THE RESERVOIR AND
CANAL DURING PERIODS OF SHUT-DOWN OF THE POWER PLANT AND THE RELEASE OF
WATER AT SUBSTANTIAL RATES OF FLOW DURING PERIODS OF OPERATION OF THE
POWER PLANT, AS SET FORTH ABOVE, WOULD CAUSE EXTREME FLUCTUATIONS IN
THE FLOW OF THE MISSISSIPPI RIVER AT MUSCATINE, IOWA, AND WOULD
SUBSTANTIALLY AFFECT THE NAVIGABLE CAPACITY OF THAT RIVER; 

(4)  THAT THE INTERESTS OF INTERSTATE COMMERCE WOULD BE AFFECTED BY
CONSTRUCTION OF THE PROJECT AS DESCRIBED IN THE DECLARATION OF
INTENTION AS SUPPLEMENTED; 

(5)  THAT THE TWO SMALL ISLANDS  ...  (IN THE CEDAR RIVER) ARE PUBLIC
LANDS OF THE UNITED STATES AND WILL BE PARTLY OR WHOLLY FLOODED BY THE
RESERVOIR OF THE PROPOSED PROJECT AND WILL BE OCCUPIED BY THE PROJECT; 

(6)  THAT A LICENSE FOR THE CONSTRUCTION PROPOSED ABOVE IS REQUIRED
UNDER THE PROVISIONS OF THE FEDERAL POWER ACT."  2 FED. POWER COMM.
REP., 958.  FN4 

ON AUGUST 11, 1941, THE PETITIONER, PURSUANT TO THAT FINDING, FILED
WITH THE COMMISSION AN APPLICATION FOR A LICENSE TO CONSTRUCT THE
PROJECT ABOVE DESCRIBED.  ON NOVEMBER 4, 1941, THE COMMISSION GRANTED
THE STATE OF IOWA'S PETITION TO INTERVENE AND, SINCE THEN, THE STATE
HAS OPPOSED ACTIVELY THE GRANTING OF THE FEDERAL LICENSE. 

ON JANUARY 29, 1944, AFTER EXTENDED HEARINGS, THE COMMISSION RENDERED
AN OPINION INCLUDING THE FOLLOWING STATEMENTS: 

"AS FIRST PRESENTED, THE PLANS OF THE APPLICANT FOR DEVELOPING THE
WATER RESOURCES OF THE CEDAR RIVER WERE NEITHER DESIRABLE NOR ADEQUATE,
BUT MANY IMPORTANT CHANGES IN DESIGN HAVE BEEN MADE.  (THE OPINION HERE
QUOTED IN A FOOTNOTE SEC. 10(A) OF THE FEDERAL POWER ACT.)  FN5  THE
APPLICANT HAS ALSO AGREED TO CERTAIN MODIFICATIONS PROPOSED BY THE
CHIEF OF ENGINEERS OF THE WAR DEPARTMENT.  THE PRESENT PLANS CALL FOR A
PRACTICAL AND REASONABLY ADEQUATE DEVELOPMENT TO UTILIZE THE HEAD AND
WATER AVAILABLE, CREATE A LARGE STORAGE RESERVOIR, AND MAKE AVAILABLE
FOR RECREATIONAL PURPOSES A CONSIDERABLE AREA NOW UNSUITABLE FOR SUCH
USE, ALL AT A COST WHICH DOES NOT APPEAR TO BE UNREASONABLE. 

"FURTHER CHANGES IN DESIGN MAY BE DESIRABLE, BUT THEY ARE MINOR IN
CHARACTER AND CAN BE EFFECTED IF THE APPLICANT IS ABLE TO MEET THE
OTHER REQUIREMENTS OF THE ACT."  RE FIRST IOWA HYDRO-ELECTRIC
COOPERATIVE, 52 PUR (NS) 82, 84. 

WE BELIEVE THAT THE COMMISSION WOULD HAVE BEEN JUSTIFIED IN
PROCEEDING FURTHER AT THAT TIME WITH ITS CONSIDERATION OF THE
PETITIONER'S APPLICATION UPON ALL THE MATERIAL FACTS.  SUCH
CONSIDERATION WOULD HAVE INCLUDED EVIDENCE SUBMITTED BY THE PETITIONER
PURSUANT TO SEC. 9(B) OF THE FEDERAL POWER ACT  FN6  AS TO THE
PETITIONER'S COMPLIANCE WITH THE REQUIREMENTS OF THE LAWS OF IOWA WITH
RESPECT TO THE PETITIONER'S PROPERTY RIGHTS TO MAKE ITS PROPOSED USE OF
THE AFFECTED RIVER BEDS AND BANKS AND TO DIVERT AND USE RIVER WATER FOR
THE PROPOSED POWER PURPOSES, AS WELL AS THE PETITIONER'S RIGHT, WITHIN
THE STATE OF IOWA, TO ENGAGE IN THE BUSINESS OF DEVELOPING,
TRANSMITTING, AND DISTRIBUTING POWER, AND IN ANY OTHER BUSINESS
NECESSARY TO EFFECT THE PURPOSES OF THE LICENSE.  THE COMMISSION,
HOWEVER, WAS CONFRONTED AT THAT POINT WITH A CLAIM BY THE STATE OF IOWA
THAT THE PETITIONER MUST NOT ONLY MEET THE REQUIREMENTS FOR A FEDERAL
LICENSE FOR THE PROJECT UNDER THE FEDERAL POWER ACT, BUT SHOULD ALSO
PRESENT SATISFACTORY EVIDENCE OF ITS COMPLIANCE WITH THE REQUIREMENTS
OF CHAPTER 363 OF THE CODE OF IOWA, 1939, HEREINAFTER DISCUSSED, FOR A
PERMIT FROM THE STATE EXECUTIVE COUNCIL OF IOWA FOR THE SAME PROJECT. 

WHILE IT NOW APPEARS, FROM ITS BRIEF AND THE ARGUMENT IN THIS COURT,
THAT IT IS THE OPINION OF THE FEDERAL POWER COMMISSION THAT THE
REQUIREMENTS OF CHAPTER 363 OF THE CODE OF IOWA AS TO THIS PROJECT HAVE
BEEN SUPERSEDED BY THOSE OF THE FEDERAL POWER ACT, YET, AT THE TIME OF
THE ORIGINAL HEARING, THE COMMISSION FELT THAT THE COURTS WERE THE
APPROPRIATE PLACE FOR THE DECISION ON IOWA'S CONTENTION AS TO THE
APPLICABILITY AND EFFECTIVENESS OF CHAPTER 363 OF ITS CODE IN RELATION
TO THIS PROJECT.  THE COMMISSION DECIDED, THEREFORE, TO PROCEED NO
FURTHER UNTIL THAT QUESTION HAD BEEN DECIDED BY THE COURTS, AND
DISMISSED THE PETITIONER'S APPLICATION, WITHOUT PREJUDICE, IN
ACCORDANCE WITH THE FOLLOWING EXPLANATION STATED IN ITS OPINION: 

"THE APPROPRIATE PLACE FOR A DETERMINATION OF THE VALIDITY OF SUCH
STATE LAWS IS IN THE COURTS AND, IF WE DISMISS THE APPLICATION FOR
LICENSE ON THE BASIS OF FAILURE TO COMPLY WITH THE REQUIREMENTS OF SEC.
9(B), APPLICANT MAY SEEK REVIEW OF OUR ACTION AND ITS CONTENTIONS UNDER
SEC. 313(B) OF THE FEDERAL POWER ACT."  52 PUR (NS) 82, 85. 

THE COMMISSION ALSO EXPRESSLY FOUND THAT - 

"THE APPLICANT HAS NOT PRESENTED SATISFACTORY EVIDENCE, PURSUANT TO
SEC. 9(B) OF THE FEDERAL POWER ACT, OF COMPLIANCE WITH THE REQUIREMENTS
OF APPLICABLE LAWS OF THE STATE OF IOWA REQUIRING A PERMIT FROM THE
STATE EXECUTIVE COUNCIL TO EFFECT THE PURPOSES OF A LICENSE UNDER THE
FEDERAL POWER ACT, AND THE PENDING APPLICATION, AS SUPPLEMENTED, SHOULD
BE DISMISSED WITHOUT PREJUDICE; ..."  ID. AT 85. 

THIS ACTION, AFTER ALL, DID NOT SAVE THE COMMISSION FROM PASSING ON
THE ISSUE, FOR THE ORDER OF DISMISSAL WAS A RULING UPON IT, ADVERSE
BOTH TO THE PETITIONER'S CONTENTIONS AND TO ITS OWN VIEWS ON THE LAW. 
THE COMMISSION WOULD HAVE BEEN JUSTIFIED IN FOLLOWING ITS OWN
INTERPRETATION OF THE FEDERAL POWER ACT AND PROCEEDING WITH THE MERITS
OF THE APPLICATION WITHOUT REQUIRING THE PETITIONER TO SUBMIT EVIDENCE
OF ITS COMPLIANCE WITH THE TERMS OF CHAPTER 363, OR OF ANY OTHER LAWS
OF THE STATE OF IOWA, WHICH THE COMMISSION HELD TO BE INAPPLICABLE OR
TO HAVE BEEN SUPERSEDED BY THE FEDERAL POWER ACT. 

ON THE APPLICANT'S PETITION FOR REVIEW OF THE DISMISSAL, IT WAS
AFFIRMED BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA.  151 F.2D 20.  WE THEN GRANTED CERTIORARI UNDER SEC. 240(A)
OF THE JUDICIAL CODE, 28 U.S.C. SEC. 347, AND SEC. 313(B) OF THE
FEDERAL POWER ACT, 49 STAT. 860, 16 U.S.C. SEC. 825L, BECAUSE OF THE
IMPORTANCE OF THE CASE IN APPLYING THE FEDERAL POWER ACT. 

THE FINDINGS MADE BY THE COMMISSION ON JUNE 3, 1941, IN RESPONSE TO
THE PETITIONER'S DECLARATION OF INTENTION ARE NOT IN QUESTION.  FOR THE
PURPOSES OF THIS APPLICATION IT IS SETTLED THAT THE PROJECT WILL AFFECT
THE NAVIGABILITY OF THE CEDAR, IOWA AND MISSISSIPPI RIVERS, EACH OF
WHICH HAS BEEN DETERMINED TO BE A PART OF THE NAVIGABLE WATERS OF THE
UNITED STATES; WILL AFFECT THE INTERESTS OF INTERSTATE COMMERCE; WILL
FLOOD CERTAIN PUBLIC LANDS OF THE UNITED STATES; AND WILL REQUIRE FOR
ITS CONSTRUCTION A LICENSE FROM THE COMMISSION.  FN7  THE PROJECT IS
CLEARLY WITHIN THE JURISDICTION OF THE COMMISSION UNDER THE FEDERAL
POWER ACT.  THE QUESTION AT ISSUE IS THE NEED, IF ANY, FOR THE
PRESENTATION OF SATISFACTORY EVIDENCE OF THE PETITIONER'S COMPLIANCE
WITH THE TERMS OF CHAPTER 363 OF THE CODE OF IOWA.  THIS QUESTION IS
PUT IN ISSUE BY THE PETITION FOR REVIEW OF THE ORDER OF THE COMMISSION
WHICH DISMISSED THE APPLICATION SOLELY ON THE GROUND OF THE FAILURE OF
THE PETITIONER TO PRESENT SUCH EVIDENCE.  THE LAWS OF IOWA WHICH THAT
STATE CONTENDS ARE APPLICABLE AND REQUIRE A PERMIT FROM ITS EXECUTIVE
COUNCIL TO EFFECT THE PURPOSES OF THE FEDERAL LICENSE ARE ALL IN SECS.
7767-7796.1 OF THE CODE OF IOWA, 1939, CONSTITUTING CHAPTER 363,
ENTITLED "MILL DAMS AND RACES."  SECTION 7767 OF THAT CHAPTER IS
ALLEGED TO REQUIRE THE ISSUANCE OF A PERMIT BY THE EXECUTIVE COUNCIL OF
THE STATE AND IS THE ONE ON WHICH THE COMMISSION'S ORDER MUST DEPEND. 
IT PROVIDES: 

"7767 PROHIBITION - PERMIT.  NO DAM SHALL BE CONSTRUCTED, MAINTAINED,
OR OPERATED IN THIS STATE IN ANY NAVIGABLE OR MEANDERED STREAM FOR ANY
PURPOSE, OR IN ANY OTHER STREAM FOR MANUFACTURING OR POWER PURPOSES,
NOR SHALL ANY WATER BE TAKEN FROM SUCH STREAMS FOR INDUSTRIAL PURPOSES,
UNLESS A PERMIT HAS BEEN GRANTED BY THE EXECUTIVE COUNCIL TO THE
PERSON, FIRM, CORPORATION, OR MUNICIPALITY CONSTRUCTING, MAINTAINING,
OR OPERATING THE SAME."  FN8 

TO REQUIRE THE PETITIONER TO SECURE THE ACTUAL GRANT TO IT OF A STATE
PERMIT UNDER SEC. 7767 AS A CONDITION PRECEDENT TO SECURING A FEDERAL
LICENSE FOR THE SAME PROJECT UNDER THE FEDERAL POWER ACT WOULD VEST IN
THE EXECUTIVE COUNCIL OF IOWA A VETO POWER OVER THE FEDERAL PROJECT. 
SUCH A VETO POWER EASILY COULD DESTROY THE EFFECTIVENESS OF THE FEDERAL
ACT.  IT WOULD SUBORDINATE TO THE CONTROL OF THE STATE THE
"COMPREHENSIVE" PLANNING WHICH THE ACT PROVIDES SHALL DEPEND UPON THE
JUDGMENT OF THE FEDERAL POWER COMMISSION OR OTHER REPRESENTATIVES OF
THE FEDERAL GOVERNMENT.  FN9    THE COMMISSION'S ORDER OF DISMISSAL
AVOIDS THIS EXTREME RESULT BECAUSE, INSTEAD OF CHARGING THE PETITIONER
WITH FAILURE TO PRESENT SATISFACTORY EVIDENCE OF THE ACTUAL GRANT TO IT
OF A STATE PERMIT, THE ORDER CHARGES THE PETITIONER WITH FAILURE TO
PRESENT SATISFACTORY EVIDENCE MERELY OF ITS "COMPLIANCE WITH THE
REQUIREMENTS OF APPLICABLE LAWS OF THE STATE OF IOWA REQUIRING A PERMIT
FROM THE STATE EXECUTIVE COUNCIL."  WHILE THIS AVOIDS SUBJECTING THE
PETITIONER TO AN ARBITRARY AND CAPRICIOUS REFUSAL OF THE PERMIT IT DOES
NOT MEET THE SUBSTANCE OF THE OBJECTION TO THE ORDER.  FOR EXAMPLE,
SEC. 7776 OF THE STATE CODE REQUIRES THAT "THE METHOD OF CONSTRUCTION,
OPERATION, MAINTENANCE, AND EQUIPMENT OF ANY AND ALL DAMS IN SUCH
WATERS SHALL BE SUBJECT TO THE APPROVAL OF THE EXECUTIVE COUNCIL." 
THIS WOULD SUBJECT TO STATE CONTROL THE VERY REQUIREMENTS OF THE
PROJECT THAT CONGRESS HAS PLACED IN THE DISCRETION OF THE FEDERAL POWER
COMMISSION.  FN10  A STILL GREATER DIFFICULTY IS ILLUSTRATED BY SEC.
7771.  THIS STATES THE REQUIREMENTS FOR A STATE PERMIT AS FOLLOWS: 

"7771 WHEN PERMIT GRANTED.  IF IT SHALL APPEAR TO THE COUNCIL THAT
THE CONSTRUCTION, OPERATION, OR MAINTENANCE OF THE DAM WILL NOT
MATERIALLY OBSTRUCT EXISTING NAVIGATION, OR MATERIALLY AFFECT OTHER
PUBLIC RIGHTS, WILL NOT ENDANGER LIFE OR PUBLIC HEALTH, AND ANY WATER
TAKEN FROM THE STREAM IN CONNECTION WITH THE PROJECT IS RETURNED
THERETO AT THE NEAREST PRACTICABLE PLACE WITHOUT BEING MATERIALLY
DIMINISHED IN QUANTITY OR POLLUTED OR RENDERED DELETERIOUS TO FISH
LIFE, IT SHALL GRANT THE PERMIT, UPON SUCH TERMS AND CONDITIONS AS IT
MAY PRESCRIBE." 

THIS STRIKES AT THE HEART OF THE PRESENT PROJECT.  THE FEATURE OF THE
PROJECT WHICH ESPECIALLY COMMENDED IT TO THE FEDERAL POWER COMMISSION
WAS ITS DIVERSION OF SUBSTANTIALLY ALL OF THE WATERS OF THE CEDAR RIVER
NEAR MOSCOW, TO THE MISSISSIPPI RIVER NEAR MUSCATINE.  SUCH A DIVERSION
LONG HAS BEEN RECOGNIZED AS AN ENGINEERING POSSIBILITY AND AS
CONSTITUTING THE LARGEST POWER DEVELOPMENT FORESEEABLE ON EITHER THE
CEDAR OR IOWA RIVERS.  FN11  IT IS THIS DIVERSION THAT MAKES POSSIBLE
THE INCREASE IN THE HEAD OF WATER FOR POWER DEVELOPMENT FROM A MAXIMUM
OF 35 FEET TO AN AVERAGE OF 101 FEET, THE INCREASE IN THE CAPACITY OF
THE PLANT FROM 15,000 KW. TO 50,000 KW. AND ITS OUTPUT FROM 47,000,000
KWH.  TO 200,000,000 KWH.  PER YEAR.  IT IS THIS DIVERSION THAT LED THE
FEDERAL POWER COMMISSION, ON JANUARY 29, 1944, TO MAKE ITS FAVORABLE
APPRAISAL OF THE ENLARGED PROJECT IN CONTRAST TO ITS UNFAVORABLE
APPRAISAL, AND TO THE STATE'S REJECTION, OF THE SMALLER PROJECT.  IT IS
THIS FEATURE THAT BRINGS THIS PROJECT SQUARELY UNDER THE FEDERAL POWER
ACT AND AT THE SAME TIME GIVES THE PROJECT ITS GREATEST ECONOMIC
JUSTIFICATION. 

IF A STATE PERMIT IS NOT REQUIRED, THERE IS NO JUSTIFICATION FOR
REQUIRING THE PETITIONER, AS A CONDITION OF SECURING ITS FEDERAL
PERMIT, TO PRESENT EVIDENCE OF THE PETITIONER'S COMPLIANCE WITH THE
REQUIREMENTS OF THE STATE CODE FOR A STATE PERMIT.  COMPLIANCE WITH
STATE REQUIREMENTS THAT ARE IN CONFLICT WITH FEDERAL REQUIREMENTS MAY
WELL BLOCK THE FEDERAL LICENSE.  FOR EXAMPLE, COMPLIANCE WITH THE STATE
REQUIREMENT, DISCUSSED ABOVE, THAT THE WATER OF THE CEDAR RIVER ALL BE
RETURNED TO IT AT THE NEAREST PRACTICABLE PLACE WOULD REDUCE THE
PROJECT TO THE SMALL ONE WHICH IS CLASSIFIED BY THE FEDERAL POWER
COMMISSION AS "NEITHER DESIRABLE NOR ADEQUATE."  SIMILARLY, COMPLIANCE
WITH THE ENGINEERING REQUIREMENTS OF THE STATE EXECUTIVE COUNCIL, IF
ADDITIONAL TO OR DIFFERENT FROM THE FEDERAL REQUIREMENTS, MAY WELL
RESULT IN DUPLICATIONS OF EXPENDITURES THAT WOULD HANDICAP THE
FINANCIAL SUCCESS OF THE PROJECT.  COMPLIANCE WITH REQUIREMENTS FOR A
PERMIT THAT IS NOT TO BE ISSUED IS A PROCEDURE SO FUTILE THAT IT CANNOT
BE IMPUTED TO CONGRESS IN THE ABSENCE OF AN EXPRESS PROVISION FOR IT.
ON THE OTHER HAND, THERE IS AMPLE OPPORTUNITY FOR THE FEDERAL POWER
COMMISSION, UNDER THE AUTHORITY EXPRESSLY GIVEN TO IT BY CONGRESS, TO
REQUIRE BY REGULATION THE PRESENTATION OF EVIDENCE SATISFACTORY TO IT
OF THE PETITIONER'S COMPLIANCE WITH ANY OF THE REQUIREMENTS FOR A STATE
PERMIT ON THE STATE WATERS OF IOWA THAT THE COMMISSION CONSIDERS
APPROPRIATE TO EFFECT THE PURPOSES OF A FEDERAL LICENSE ON THE
NAVIGABLE WATERS OF THE UNITED STATES.  THIS EVIDENCE CAN BE REQUIRED
OF THE PETITIONER UPON THE REMANDING OF THIS APPLICATION TO THE
COMMISSION. 

IN THE FEDERAL POWER ACT THERE IS A SEPARATION OF THOSE SUBJECTS
WHICH REMAIN UNDER THE JURISDICTION OF THE STATES FROM THOSE SUBJECTS
WHICH THE CONSTITUTION DELEGATES TO THE UNITED STATES AND OVER WHICH
CONGRESS VESTS THE FEDERAL POWER COMMISSION WITH AUTHORITY TO ACT.  TO
THE EXTENT OF THIS SEPARATION, THE ACT ESTABLISHES A DUAL SYSTEM OF
CONTROL.  THE DUALITY OF CONTROL CONSISTS MERELY OF THE DIVISION OF THE
COMMON ENTERPRISE BETWEEN TWO COOPERATING AGENCIES OF GOVERNMENT, EACH
WITH FINAL AUTHORITY IN ITS OWN JURISDICTION.  THE DUALITY DOES NOT
REQUIRE TWO AGENCIES TO SHARE IN THE FINAL DECISION OF THE SAME ISSUE. 
WHERE THE FEDERAL GOVERNMENT SUPERSEDES THE STATE GOVERNMENT THERE IS
NO SUGGESTION THAT THE TWO AGENCIES BOTH SHALL HAVE FINAL AUTHORITY. 
IN FACT A CONTRARY POLICY IS INDICATED IN SECS. 4(E), 10(A), (B) AND
(C), AND 23(B).  FN12  IN THOSE SECTIONS THE ACT PLACES THE
RESPONSIBILITY SQUARELY UPON FEDERAL OFFICIALS AND USUALLY UPON THE
FEDERAL POWER COMMISSION.  A DUAL FINAL AUTHORITY, WITH A DUPLICATE
SYSTEM OF STATE PERMITS AND FEDERAL LICENSES REQUIRED FOR EACH PROJECT,
WOULD BE UNWORKABLE.  "COMPLIANCE WITH THE REQUIREMENTS" OF SUCH A
DUPLICATED SYSTEM OF LICENSING WOULD BE NEARLY AS BAD.  CONFORMITY TO
BOTH STANDARDS WOULD BE IMPOSSIBLE IN SOME CASES AND PROBABLY DIFFICULT
IN MOST OF THEM.  FN13  THE SOLUTION ADOPTED BY CONGRESS, AS TO WHAT
EVIDENCE AN APPLICANT FOR A FEDERAL LICENSE SHOULD SUBMIT TO THE
FEDERAL POWER COMMISSION, APPEARS IN SEC. 9 OF ITS ACT.  IT CONTAINS
NOT ONLY SUBSECTION (B)  FN14  BUT ALSO SUBSECTIONS (A) AND (C).  FN15
ADDITIONAL INFORMATION AS THE COMMISSION MAY REQUIRE."  THIS ENABLES IT
TO SECURE, IN SO FAR AS IT DEEMS IT MATERIAL, SUCH PARTS OR ALL OF THE
INFORMATION THAT THE RESPECTIVE STATES MAY HAVE PRESCRIBED IN STATE
STATUTES AS A BASIS FOR STATE ACTION.  THE ENTIRE ADMINISTRATIVE
PROCEDURE REQUIRED AS TO THE PRESENT APPLICATION FOR A LICENSE IS
DESCRIBED IN SEC. 9 AND IN THE RULES OF PRACTICE AND REGULATIONS OF THE
COMMISSION.  FN16 

THE SECURING OF AN IOWA STATE PERMIT IS NOT IN ANY SENSE A CONDITION
PRECEDENT OR AN ADMINISTRATIVE PROCEDURE THAT MUST BE EXHAUSTED BEFORE
SECURING A FEDERAL LICENSE.  IT IS A PROCEDURE REQUIRED BY THE STATE OF
IOWA IN DEALING WITH ITS LOCAL STREAMS AND ALSO WITH THE WATERS OF THE
UNITED STATES WITHIN THAT STATE IN THE ABSENCE OF AN ASSUMPTION OF
JURISDICTION BY THE UNITED STATES OVER THE NAVIGABILITY OF ITS WATERS. 
NOW THAT THE FEDERAL GOVERNMENT HAS TAKEN JURISDICTION OF SUCH WATERS
UNDER THE FEDERAL POWER ACT, IT HAS NOT BY STATUTE OR REGULATION ADDED
THE STATE REQUIREMENTS TO ITS FEDERAL REQUIREMENTS. 

THE STATE OF IOWA, IN ITS PETITION TO INTERVENE IN THE PROCEEDINGS
BEFORE THE COMMISSION, STATED IN RELATION TO THE PROPOSED DIVERSION OF
WATER FROM THE CEDAR RIVER TO THE MISSISSIPPI:  "SAID DIVERSION WOULD
BE IN DIRECT VIOLATION OF THE PROVISIONS OF SECTION 7771, CODE OF IOWA
1939."  ALSO, IN THE STATE'S MOTION TO INTERVENE IN THE PROCEEDINGS
BEFORE THE COURT OF APPEALS, IT ALLEGED THAT "BY REASON OF SAID
PROVISIONS OF LAW (SECS. 7767 AND 7771, CODE OF IOWA, 1939) AND THE
DIVERSION OF WATER INVOLVED IN THE PROPOSED PROJECT OF PETITIONER, THE
EXECUTIVE COUNCIL OF THE STATE OF IOWA COULD NOT LAWFULLY GRANT A
PERMIT FOR THE ERECTION OF THE DAM PROPOSED."  FURTHERMORE, THE
EXECUTIVE COUNCIL, WHICH INCLUDES THE GOVERNOR OF THE STATE, ON JULY 5,
1944, ADOPTED A RESOLUTION DIRECTING THE ATTORNEY GENERAL OF IOWA TO
INTERVENE IN THIS CASE BEFORE THAT COURT AND "THEREBY TAKE STEPS TO
SUSTAIN THE SAID ORDER OF THE FEDERAL POWER COMMISSION (DISMISSING THE
PETITIONER'S APPLICATION FOR A FEDERAL LICENSE)" BECAUSE "IT IS VITAL
TO THE INTERESTS OF THE STATE OF IOWA THAT THE SAID ORDER OF THE
COMMISSION BE SUSTAINED."  THIS DEMONSTRATES THAT THE STATE OF IOWA NOT
ONLY IS OPPOSED TO THE GRANTING OF A STATE PERMIT BUT IS OPPOSED ALSO
TO THE GRANTING OF A FEDERAL LICENSE FOR THE PROJECT.  THIS OPPOSITION
IS BASED AT LEAST IN PART ON THE GROUND THAT THE STATE STATUTE, AS
INTERPRETED BY THE STATE OFFICIALS, EXPRESSES A POLICY OPPOSED TO THE
DIVERSION OF WATER FROM ONE STREAM TO ANOTHER IN IOWA UNDER SUCH
CIRCUMSTANCES AS THE PRESENT. 

ACCEPTING THIS AS THE MEANING OF SEC. 7771 OF THE IOWA CODE BRINGS US
TO CONSIDERATION OF THE EFFECT OF THE FEDERAL POWER ACT UPON IT AND THE
RELATED STATE STATUTES.  WE FIND THAT WHEN THAT ACT IS READ IN THE
LIGHT OF ITS LONG AND COLORFUL LEGISLATIVE HISTORY, IT DISCLOSES BOTH A
VIGOROUS DETERMINATION OF CONGRESS TO MAKE PROGRESS WITH THE
DEVELOPMENT OF THE LONG IDLE WATER POWER RESOURCES OF THE NATION AND A
DETERMINATION TO AVOID UNCONSTITUTIONAL INVASION OF THE JURISDICTION OF
THE STATES.  THE SOLUTION REACHED IS TO APPLY THE PRINCIPLE OF THE
DIVISION OF CONSTITUTIONAL POWERS BETWEEN THE STATE AND FEDERAL
GOVERNMENTS.  THIS HAS RESULTED IN A DUAL SYSTEM INVOLVING THE CLOSE
INTEGRATION OF THESE POWERS RATHER THAN A DUAL SYSTEM OF FUTILE
DUPLICATION OF TWO AUTHORITIES OVER THE SAME SUBJECT MATTER. 

THE ACT LEAVES TO THE STATES THEIR TRADITIONAL JURISDICTION SUBJECT
TO THE ADMITTEDLY SUPERIOR RIGHT OF THE FEDERAL GOVERNMENT, THROUGH
CONGRESS, TO REGULATE INTERSTATE AND FOREIGN COMMERCE, ADMINISTER THE
PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES AND, IN CERTAIN
CASES, EXERCISE AUTHORITY UNDER THE TREATIES OF THE UNITED STATES. 
THESE SOURCES OF CONSTITUTIONAL AUTHORITY ARE ALL APPLIED IN THE
FEDERAL POWER ACT TO THE DEVELOPMENT OF THE NAVIGABLE WATERS OF THE
UNITED STATES.  FN17 

THE CLOSENESS OF THE RELATIONSHIP OF THE FEDERAL GOVERNMENT TO THESE
PROJECTS AND ITS OBVIOUS CONCERN IN MAINTAINING CONTROL OVER THEIR
ENGINEERING, ECONOMIC AND FINANCIAL SOUNDNESS IS EMPHASIZED BY SUCH
PROVISIONS AS THOSE OF SEC. 14 AUTHORIZING THE FEDERAL GOVERNMENT, AT
THE EXPIRATION OF A LICENSE, TO TAKE OVER THE LICENSED PROJECT BY
PAYMENT OF "THE NET INVESTMENT OF THE LICENSEE IN THE PROJECT OR
PROJECTS TAKEN, NOT TO EXCEED THE FAIR VALUE OF THE PROPERTY TAKEN,"
PLUS AN ALLOWANCE FOR SEVERANCE DAMAGES.  THE SCOPE OF THE WHOLE
PROGRAM HAS BEEN FURTHER AIDED, IN 1940, BY THE DEFINITION GIVEN TO
NAVIGABLE WATERS OF THE UNITED STATES IN UNITED STATES V. APPALACHIAN
POWER CO., 311 U.S. 377.  "STUDENTS OF OUR LEGAL EVOLUTION KNOW HOW
THIS COURT INTERPRETED THE COMMERCE CLAUSE OF THE CONSTITUTION TO LIFT
NAVIGABLE WATERS OF THE UNITED STATES OUT OF LOCAL CONTROLS AND INTO
THE DOMAIN OF FEDERAL CONTROL.  GIBBONS V. OGDEN, 9 WHEAT.  1, TO
UNITED STATES V. APPALACHIAN POWER CO., 311 U.S. 377."  NORTHWEST
AIRLINES V. MINNESOTA, 322 U.S. 292, 303. 

IT WAS IN THE LIGHT OF THESE DEVELOPMENTS THAT THIS PETITIONER, IN
APRIL, 1941, MADE APPLICATION FOR A FEDERAL LICENSE FOR THIS ENLARGED
PROJECT.  THIS PROJECT THUS ILLUSTRATES THE KIND OF A DEVELOPMENT, IN
RELATION TO INTERSTATE COMMERCE AND TO THE NAVIGABLE WATERS OF THE
UNITED STATES, THAT IS BROUGHT FORTH BY THE NEW RECOGNITION OF ITS
VALUE WHEN VIEWED FROM THE COMPREHENSIVE VIEWPOINT OF THE FEDERAL POWER
COMMISSION.  UNTIL 1941, THIS ENLARGED PROJECT HAD REMAINED DORMANT AT
LEAST FROM THE TIME WHEN ITS VALUE WAS RECOGNIZED IN THE REPORT TO
CONGRESS FILED BY THE WAR DEPARTMENT IN 1929.  FN18 

FURTHER LIGHT IS THROWN UPON THE MEANING OF THE FEDERAL POWER ACT BY
THE STATEMENT, MADE BY REPRESENTATIVE WILLIAM L. LAFOLLETTE OF
WASHINGTON, A MEMBER OF THE SPECIAL COMMITTEE ON WATER POWER, WHICH
REPORTED THE BILL WHICH LATER BECAME THE FEDERAL WATER POWER ACT OF
1920.  IN THE DEBATE WHICH LED TO THE INSERTION IN SEC. 9(B) OF THE
REFERENCE TO STATE LAWS AS TO THE BED AND BANKS OF STREAMS, HE SAID: 

"THE PROPERTY RIGHTS ARE WITHIN THE STATE.  IT CAN DISPOSE OF THE
BEDS, OR PARTS OF THEM, REGARDLESS OF THE RIPARIAN OWNERSHIP OF THE
BANKS, IF IT DESIRES TO, AND THAT HAS BEEN DONE IN SOME STATES.  IF WE
PUT IN THIS LANGUAGE, WHICH IS PRACTICALLY TAKEN FROM THAT SUPREME
COURT DECISION (UNITED STATES V. CRESS, 243 U.S. 316), AS TO THE
PROPERTY RIGHTS OF THE STATES AS TO THE BED AND THE BANKS AND TO THE
DIVERSION OF THE WATER, THEN IT IS SURE THAT WE HAVE NOT INFRINGED ANY
OF THE RIGHTS OF THE STATES IN THAT RESPECT, OR ANY OF THEIR RULES OF
PROPERTY, AND WE ARE TRYING IN THIS BILL ABOVE EVERYTHING ELSE TO
OVERCOME A DIVIDED AUTHORITY AND PASS A BILL THAT WILL MAKE IT POSSIBLE
TO GET DEVELOPMENT.  WE ARE EARNESTLY TRYING NOT TO INFRINGE THE RIGHTS
OF THE STATES.  IF POSSIBLE WE WANT A BILL THAT CAN NOT BE DEFEATED IN
THE SUPREME COURT BECAUSE OF OMISSIONS, BECAUSE OF THE LACK OF SOME
PROVISION THAT WE SHOULD HAVE PUT IN THE BILL TO SAFEGUARD THE
STATES."  56 CONG. REC. 9810. 

AS INDICATED BY REPRESENTATIVE LAFOLLETTE, CONGRESS WAS CONCERNED
WITH OVERCOMING THE DANGER OF DIVIDED AUTHORITY SO AS TO BRING ABOUT
THE NEEDED DEVELOPMENT OF WATER POWER AND ALSO WITH THE RECOGNITION OF
THE CONSTITUTIONAL RIGHTS OF THE STATES SO AS TO SUSTAIN THE VALIDITY
OF THE ACT.  THE RESULTING INTEGRATION OF THE RESPECTIVE JURISDICTIONS
OF THE STATE AND FEDERAL GOVERNMENTS IS ILLUSTRATED BY THE CAREFUL
PRESERVATION OF THE SEPARATE INTERESTS OF THE STATES THROUGHOUT THE
ACT, WITHOUT SETTING UP A DIVIDED AUTHORITY OVER ANY ONE SUBJECT. 
FN19 

27 EXPRESSLY "SAVES" CERTAIN STATE LAWS RELATING TO PROPERTY RIGHTS AS
TO THE USE OF WATER, SO THAT THESE ARE NOT SUPERSEDED BY THE TERMS OF
THE FEDERAL POWER ACT.  IT PROVIDES:    "SEC. 27.  THAT NOTHING HEREIN
CONTAINED SHALL BE CONSTRUED AS AFFECTING OR INTENDING TO AFFECT OR IN
ANY WAY TO INTERFERE WITH THE LAWS OF THE RESPECTIVE STATES RELATING TO
THE CONTROL, APPROPRIATION, USE, OR DISTRIBUTION OF WATER USED IN
IRRIGATION OR FOR MUNICIPAL OR OTHER USES, OR ANY VESTED RIGHT ACQUIRED
THEREIN."  41 STAT. 1077, 16 U.S.C. SEC. 821. 

AN EXPRESS "SAVING" CLAUSE IN THE FEDERAL POWER ACT IF THE USUAL RULES
OF SUPERSEDURE ARE TO BE OVERCOME.  SECTIONS 27 AND 9(B) WERE BOTH
INCLUDED IN THE ORIGINAL FEDERAL WATER POWER ACT OF 1920 IN THEIR
PRESENT FORM.  THE DIRECTNESS AND CLARITY OF SEC. 27 AS A "SAVING"
CLAUSE AND ITS LOCATION NEAR THE END OF THE ACT EMPHASIZES THE
DISTINCTION BETWEEN ITS PURPOSE AND THAT OF SEC. 9(B) WHICH IS INCLUDED
IN SEC. 9, IN THE EARLY PART OF THE ACT, WHICH DEALS WITH THE
MARSHALLING OF INFORMATION FOR THE CONSIDERATION OF A NEW FEDERAL
LICENSE.  IN VIEW OF THE USE BY CONGRESS OF SUCH AN ADEQUATE "SAVING"
CLAUSE IN SEC. 27, ITS FAILURE TO USE SIMILAR LANGUAGE IN SEC. 9(B) IS
PERSUASIVE THAT SEC. 9(B) SHOULD NOT BE GIVEN THE SAME EFFECT AS IS
GIVEN TO SEC. 27. 

THE EFFECT OF SEC. 27, IN PROTECTING STATE LAWS FROM SUPERSEDURE, IS
LIMITED TO LAWS AS TO THE CONTROL, APPROPRIATION, USE OR DISTRIBUTION
OF WATER IN IRRIGATION OR FOR MUNICIPAL OR OTHER USES OF THE SAME
NATURE.  IT THEREFORE HAS PRIMARY, IF NOT EXCLUSIVE, REFERENCE TO SUCH
PROPRIETARY RIGHTS.  THE PHRASE "ANY VESTED RIGHT ACQUIRED THEREIN"
FURTHER EMPHASIZES THE APPLICATION OF THE SECTION TO PROPERTY RIGHTS. 
THERE IS NOTHING IN THE PARAGRAPH TO SUGGEST A BROADER SCOPE UNLESS IT
BE THE WORDS "OTHER USES."  THOSE WORDS, HOWEVER, ARE CONFINED TO
RIGHTS OF THE SAME NATURE AS THOSE RELATING TO THE USE OF WATER IN
IRRIGATION OR FOR MUNICIPAL PURPOSES.  THIS WAS SO HELD IN AN EARLY
DECISION BY A DISTRICT COURT, RELATING TO SEC. 27 AND UPHOLDING THE
CONSTITUTIONALITY OF THE ACT, WHERE IT WAS STATED THAT "A PROPER
CONSTRUCTION OF THE ACT REQUIRES THAT THE WORDS 'OTHER USES' SHALL BE
CONSTRUED EJUSDEM GENERIS WITH THE WORDS 'IRRIGATION' AND
'MUNICIPAL.'"  ALABAMA POWER CO. V. GULF POWER CO., 283 F. 606, 619. 

THIS SECTION THEREFORE IS THOROUGHLY CONSISTENT WITH THE INTEGRATION
RATHER THAN THE DUPLICATION OF FEDERAL AND STATE JURISDICTIONS UNDER
THE FEDERAL POWER ACT.  IT STRENGTHENS THE ARGUMENT THAT, IN THOSE
FIELDS WHERE RIGHTS ARE NOT THUS "SAVED" TO THE STATES, CONGRESS IS
WILLING TO LET THE SUPERSEDURE OF THE STATE LAWS BY FEDERAL LEGISLATION
TAKE ITS NATURAL COURSE.  FN20 

SEC. 9(A) AND (C).  FN22 THE ENTIRE SECTION IS DEVOTED TO SECURING
ADEQUATE INFORMATION FOR THE COMMISSION AS TO PENDING APPLICATIONS FOR
LICENSES.  WHERE SEC. 9(A) CALLS FOR ENGINEERING AND FINANCIAL
INFORMATION, SEC. 9(B) CALLS FOR LEGAL INFORMATION.  THIS MAKES SEC.
9(B) A NATURAL PLACE IN WHICH TO DESCRIBE THE EVIDENCE WHICH THE
COMMISSION SHALL REQUIRE IN ORDER TO PASS UPON APPLICATIONS FOR FEDERAL
LICENSES.  THIS MAKES IT A CORRESPONDINGLY UNNATURAL PLACE TO ESTABLISH
BY IMPLICATION SUCH A SUBSTANTIVE POLICY AS THAT CONTAINED IN SEC. 27
AND WHICH, IN ACCORDANCE WITH THE CONTENTIONS OF THE STATE OF IOWA,
WOULD ENABLE CHAPTER 363 OF THE CODE OF IOWA, 1939, TO REMAIN IN EFFECT
ALTHOUGH IN CONFLICT WITH THE REQUIREMENTS OF THE FEDERAL POWER ACT. 
THERE IS NOTHING IN THE EXPRESS LANGUAGE OF SEC. 9(B) THAT REQUIRES
SUCH A CONCLUSION. 

IT DOES NOT ITSELF REQUIRE COMPLIANCE WITH ANY STATE LAWS.  ITS
REFERENCE TO STATE LAWS IS BY WAY OF SUGGESTION TO THE FEDERAL POWER
COMMISSION OF SUBJECTS AS TO WHICH THE COMMISSION MAY WISH SOME PROOF
SUBMITTED TO IT OF THE APPLICANT'S PROGRESS.  THE EVIDENCE REQUIRED IS
DESCRIBED MERELY AS THAT WHICH SHALL BE "SATISFACTORY" TO THE
COMMISSION.  THE NEED FOR COMPLIANCE WITH APPLICABLE STATE LAWS, IF
ANY, ARISES NOT FROM THIS FEDERAL STATUTE BUT FROM THE EFFECTIVENESS OF
THE STATE STATUTES THEMSELVES. 

WHEN THIS APPLICATION HAS BEEN REMANDED TO THE COMMISSION, THAT
COMMISSION WILL NOT ACT AS A SUBSTITUTE FOR THE LOCAL AUTHORITIES
HAVING JURISDICTION OVER SUCH QUESTIONS AS THE SUFFICIENCY OF THE LEGAL
TITLE OF THE APPLICANT TO ITS RIPARIAN RIGHTS, OR AS TO THE VALIDITY OF
ITS LOCAL FRANCHISES, IF ANY, RELATING TO PROPOSED INTRASTATE PUBLIC
UTILITY SERVICE.  SECTION 9(B) SAYS THAT THE COMMISSION MAY WISH TO
HAVE "SATISFACTORY EVIDENCE" OF THE PROGRESS MADE BY THE APPLICANT
TOWARD MEETING LOCAL REQUIREMENTS BUT IT DOES NOT SAY THAT THE
COMMISSION IS TO ASSUME RESPONSIBILITY FOR THE LEGAL SUFFICIENCY OF THE
STEPS TAKEN.  THE REFERENCES MADE IN SEC. 9(B) TO BEDS AND BANKS OF
STREAMS, TO PROPRIETARY RIGHTS TO DIVERT OR USE WATER, OR TO LEGAL
RIGHTS TO ENGAGE LOCALLY IN THE BUSINESS OF DEVELOPING, TRANSMITTING
AND DISTRIBUTING POWER NEITHER ADD ANYTHING TO NOR DETRACT ANYTHING
FROM THE FORCE OF THE LOCAL LAWS, IF ANY, ON THOSE SUBJECTS.  IN SO FAR
AS THOSE LAWS HAVE NOT BEEN SUPERSEDED BY THE FEDERAL POWER ACT, THEY
REMAIN AS APPLICABLE AND EFFECTIVE AS THEY WERE BEFORE ITS PASSAGE. 
THE STATE OF IOWA, HOWEVER, HAS SOUGHT TO SUSTAIN THE APPLICABILITY AND
VALIDITY OF CHAPTER 363 OF THE CODE OF IOWA IN THIS CONNECTION, ON THE
GROUND THAT THE FEDERAL POWER ACT, BY THE IMPLICATIONS OF SEC. 9(B),
HAS RECOGNIZED THIS CHAPTER OF IOWA LAW AS PART OF A SYSTEM OF DUAL
CONTROL OF POWER PROJECT PERMITS, CUMBERSOME AND COMPLICATED THOUGH IT
BE.  IF IT HAD BEEN THE WISH OF CONGRESS TO MAKE THE APPLICANT OBTAIN
CONSENT OF STATE AS WELL AS FEDERAL AUTHORITIES TO EACH PROJECT, THE
SIMPLE THING WOULD HAVE BEEN TO SO PROVIDE.  IN THE COURSE OF THE LONG
DEBATE ON THE LEGISLATION IT WAS PROPOSED AT ONE TIME TO PROVIDE FOR
SOME SUCH CONSENT IN SEC. 9(B). 

FOR EXAMPLE, IN THE SHIELDS BILL, S. NO. 1419, 65TH CONG., 2D SESS.,
IN 1917, A PROVISO WAS PROPOSED: 

"THAT BEFORE THE PERMIT SHALL BE GRANTED UNDER THIS ACT, THE
PERMITTEE MUST FIRST OBTAIN, IN SUCH MANNER AS MAY BE REQUIRED BY THE
LAWS OF THE STATES, THE CONSENT OF THE STATE OR STATES IN WHICH THE DAM
OR OTHER STRUCTURE FOR THE DEVELOPMENT OF THE WATER POWER IS PROPOSED
TO BE CONSTRUCTED." 

THIS PROVISO WAS NOT ENACTED INTO LAW BUT IT ILLUSTRATES THE
CONCRETENESS WITH WHICH THE PROPOSAL WAS BEFORE CONGRESS.  IN 1918,
WHEN REPRESENTATIVE MONDELL, OF WYOMING, SUCCESSFULLY DEFENDED THE
PRESENT LANGUAGE AGAINST AMENDMENT, HE STATED THE PURPOSES OF SEC. 9(B)
AS FOLLOWS: 

"THERE ARE TWO CONTROLLING REASONS FOR THE INSERTION OF THIS
PARAGRAPH.  THE FIRST, FROM THE STANDPOINT OF WATER-POWER LEGISLATION,
IS THAT THE WATER-POWER COMMISSION SHALL HAVE THE BENEFIT OF ALL OF THE
INFORMATION WHICH THE STATES POSSESS RELATIVE TO THE CONDITION OF WATER
SUPPLY AT THE POINT OF PROPOSED DIVERSION.  THAT IS A VERY IMPORTANT
REASON FOR A PROVISION OF THIS KIND....  THE SECOND REASON IS SO THAT
THE BILL SHALL CARRY WITH IT NOTICE TO THE COMMISSION THAT THEY MUST
PROCEED IN ACCORDANCE WITH THE STATE LAWS, WHICH THEY MUST DO IN ANY
EVENT, WHETHER THE PROVISION WERE IN THE BILL OR NOT."  56 CONG. REC.
9813-9814. 

THE PURPOSE OF THIS SECTION AS THUS EXPLAINED IS CONSISTENT WITH THE
CONTENTION OF THE COMMISSION IN THIS CASE.  IT PROVIDES FOR
PRESENTATION OF INFORMATION TO THE FEDERAL COMMISSION AND PROTECTS THE
CONSTITUTIONAL RIGHTS OF THE STATES.  THIS EXPLANATION DOES NOT SUPPORT
THE CONTENTION OF THE STATE OF IOWA THAT SEC. 9(B) AMOUNTS TO THE
SUBJECTION OF THE FEDERAL LICENSE TO REQUIREMENTS OF THE STATE LAW ON
THE SAME SUBJECT.  THE INAPPROPRIATENESS OF SUCH AN INTERPRETATION IS
APPARENT IN THE LIGHT OF THE CIRCUMSTANCES WHICH CULMINATED IN THE
PASSAGE OF THE FEDERAL WATER POWER ACT IN 1920.  THE PURPOSES OF THE
ACT WERE THEN SO GENERALLY KNOWN AS TO HAVE MADE SUCH A RESTRICTIVE
INTERPRETATION IMPOSSIBLE AND A DENIAL OF IT UNNECESSARY.  IT WAS THE
OUTGROWTH OF A WIDELY SUPPORTED EFFORT OF THE CONSERVATIONISTS TO
SECURE ENACTMENT OF A COMPLETE SCHEME OF NATIONAL REGULATION WHICH
WOULD PROMOTE THE COMPREHENSIVE DEVELOPMENT OF THE WATER RESOURCES OF
THE NATION, IN SO FAR AS IT WAS WITHIN THE REACH OF THE FEDERAL POWER
TO DO SO, INSTEAD OF THE PIECEMEAL, RESTRICTIVE, NEGATIVE APPROACH OF
THE RIVER AND HARBOR ACTS AND OTHER FEDERAL LAWS PREVIOUSLY ENACTED. 

IT WAS A MAJOR UNDERTAKING INVOLVING A MAJOR CHANGE OF NATIONAL
POLICY.  FN23  THAT IT WAS THE INTENTION OF CONGRESS TO SECURE A
COMPREHENSIVE DEVELOPMENT OF NATIONAL RESOURCES AND NOT MERELY TO
PREVENT OBSTRUCTIONS TO NAVIGATION IS APPARENT FROM THE PROVISIONS OF
THE ACT, THE STATUTORY SCHEME OF WHICH HAS BEEN SEVERAL TIMES REVIEWED
AND APPROVED BY THE COURTS.  FN24 

THE DETAILED PROVISIONS OF THE ACT PROVIDING FOR THE FEDERAL PLAN OF
REGULATION LEAVE NO ROOM OR NEED FOR CONFLICTING STATE CONTROLS.  FN25
THE CONTENTION OF THE STATE OF IOWA IS COMPARABLE TO THAT WHICH WAS
PRESENTED ON BEHALF OF 41 STATES AND REJECTED BY THIS COURT IN UNITED
STATES V. APPALACHIAN POWER CO., 311 U.S. 377, 404-405, 426-427, WHERE
THIS COURT SAID: 

"THE STATES POSSESS CONTROL OF THE WATERS WITHIN THEIR BORDERS,
'SUBJECT TO THE ACKNOWLEDGED JURISDICTION OF THE UNITED STATES UNDER
THE CONSTITUTION IN REGARD TO COMMERCE AND THE NAVIGATION OF THE WATERS
OF RIVERS.'  IT IS THIS SUBORDINATE LOCAL CONTROL THAT, EVEN AS TO
NAVIGABLE RIVERS, CREATES BETWEEN THE RESPECTIVE GOVERNMENTS A
CONTRARIETY OF INTERESTS RELATING TO THE REGULATION AND PROTECTION OF
WATERS THROUGH LICENSES, THE OPERATION OF STRUCTURES AND THE
ACQUISITION OF PROJECTS AT THE END OF THE LICENSE TERM.  BUT THERE IS
NO DOUBT THAT THE UNITED STATES POSSESSES THE POWER TO CONTROL THE
ERECTION OF STRUCTURES IN NAVIGABLE WATERS. 

     .         .       .         .         . 

"THE POINT IS THAT NAVIGABLE WATERS ARE SUBJECT TO NATIONAL PLANNING
AND CONTROL IN THE BROAD REGULATION OF COMMERCE GRANTED THE FEDERAL
GOVERNMENT.  THE LICENSE CONDITIONS TO WHICH OBJECTION IS MADE HAVE AN
OBVIOUS RELATIONSHIP TO THE EXERCISE OF THE COMMERCE POWER.  EVEN IF
THERE WERE NO SUCH RELATIONSHIP THE PLENARY POWER OF CONGRESS OVER
NAVIGABLE WATERS WOULD EMPOWER IT TO DENY THE PRIVILEGE OF CONSTRUCTING
AN OBSTRUCTION IN THOSE WATERS.  IT MAY LIKEWISE GRANT THE PRIVILEGE ON
TERMS.  IT IS NO OBJECTION TO THE TERMS AND TO THE EXERTION OF THE
POWER THAT 'ITS EXERCISE IS ATTENDED BY THE SAME INCIDENTS WHICH ATTEND
THE EXERCISE OF THE POLICE POWER OF THE STATES.'  THE CONGRESSIONAL
AUTHORITY UNDER THE COMMERCE CLAUSE IS COMPLETE UNLESS LIMITED BY THE
FIFTH AMENDMENT." 

IT IS THE FEDERAL POWER COMMISSION RATHER THAN THE IOWA EXECUTIVE
COUNCIL THAT UNDER OUR CONSTITUTIONAL GOVERNMENT MUST PASS UPON THESE
ISSUES ON BEHALF OF THE PEOPLE OF IOWA AS WELL AS ON BEHALF OF ALL
OTHERS. 

WE ACCORDINGLY REVERSE THE JUDGMENT OF THE COURT BELOW WITH
DIRECTIONS TO REMAND THE CASE TO THE FEDERAL POWER COMMISSION FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  41 STAT. 1063, AS AMENDED, 49 STAT. 838, 16 U.S.C. SECS. 791A
825R. 

FN2  "SEC.  23  ....  (B)  IT SHALL BE UNLAWFUL FOR ANY PERSON,
STATE, OR MUNICIPALITY, FOR THE PURPOSE OF DEVELOPING ELECTRIC POWER,
TO CONSTRUCT, OPERATE, OR MAINTAIN ANY DAM, WATER CONDUIT, RESERVOIR,
POWER HOUSE, OR OTHER WORKS INCIDENTAL THERETO ACROSS, ALONG, OR IN ANY
OF THE NAVIGABLE WATERS OF THE UNITED STATES, OR UPON ANY PART OF THE
PUBLIC LANDS  ...  OF THE UNITED STATES  ...  EXCEPT UNDER AND IN
ACCORDANCE WITH THE TERMS OF  ...  A LICENSE GRANTED PURSUANT TO THIS
ACT.  ANY PERSON, ASSOCIATION, CORPORATION, STATE, OR MUNICIPALITY
INTENDING TO CONSTRUCT A DAM OR OTHER PROJECT WORKS ACROSS, ALONG,
OVER, OR IN ANY STREAM OR PART THEREOF, OTHER THAN THOSE DEFINED HEREIN
AS NAVIGABLE WATERS, AND OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS
AUTHORITY TO REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE
SEVERAL STATES SHALL BEFORE SUCH CONSTRUCTION FILE DECLARATION OF SUCH
INTENTION WITH THE COMMISSION, WHEREUPON THE COMMISSION SHALL CAUSE
IMMEDIATE INVESTIGATION OF SUCH PROPOSED CONSTRUCTION TO BE MADE, AND
IF UPON INVESTIGATION IT SHALL FIND THAT THE INTERESTS OF INTERSTATE OR
FOREIGN COMMERCE WOULD BE AFFECTED BY SUCH PROPOSED CONSTRUCTION, SUCH
PERSON, ASSOCIATION, CORPORATION, STATE, OR MUNICIPALITY SHALL NOT
CONSTRUCT, MAINTAIN, OR OPERATE SUCH DAM OR OTHER PROJECT WORKS UNTIL
IT SHALL HAVE APPLIED FOR AND SHALL HAVE RECEIVED A LICENSE UNDER THE
PROVISIONS OF THIS ACT.  IF THE COMMISSION SHALL NOT SO FIND, AND IF NO
PUBLIC LANDS  ...  ARE AFFECTED, PERMISSION IS HEREBY GRANTED TO
CONSTRUCT SUCH DAM OR OTHER PROJECT WORKS IN SUCH STREAM UPON
COMPLIANCE WITH STATE LAWS."  49 STAT. 846, 16 U.S.C. SEC. 817. 

FN3  THIS DESCRIBED A PROJECT INCLUDING AN 8,500 FOOT EARTHEN DAM,
AND A POWER PLANT OF THREE 5,000 KW. HYDRAULIC TURBINE GENERATORS
OPERATING UNDER A MAXIMUM HEAD OF 35 FEET, WITH AN ESTIMATED OUTPUT OF
47,000,000 KWH.  PER YEAR.  THE WATER WAS TO BE RETURNED TO THE CEDAR
RIVER IMMEDIATELY BELOW THE DAM. 

FN4  ON FEBRUARY 7, 1940, THE COMMISSION HAD SENT NOTICE TO THE
GOVERNOR OF IOWA OF THE FILING OF THE ORIGINAL DECLARATION OF INTENTION
AND INVITED HIM TO PRESENT INFORMATION AND COMMENTS RELATIVE THERETO. 
THE STATE, HOWEVER, TOOK NO PART IN THE PROCEEDINGS.  THE RECORD ALSO
INDICATES THAT TWICE IN THE THREE YEARS BEFORE THE PRESENT PROCEEDING,
THE EXECUTIVE COUNCIL OF THE STATE OF IOWA REJECTED APPLICATIONS OF THE
PETITIONER REQUESTING STATE PERMITS TO CONSTRUCT A DAM NEAR MOSCOW
COMPARABLE TO THAT PROPOSED IN ALL OF THESE PROCEEDINGS, BUT NOT
INCLUDING A DIVERSION OF WATER FROM THE CEDAR TO THE MISSISSIPPI
RIVER.  THE LAST APPLICATION OF THE PETITIONER TO THE COUNCIL FOR SUCH
A PERMIT WAS FILED AUGUST 12, 1940, AND REJECTED JUNE 25, 1941.  NO
APPLICATION HAS BEEN MADE BY THE PETITIONER TO THE EXECUTIVE COUNCIL
FOR A STATE PERMIT FOR CONSTRUCTION OF THE PROJECT INCLUDING THE CANAL
DIVERTING MOST OF THE FLOW OF THE CEDAR RIVER TO THE MISSISSIPPI AND
PROVIDING FOR A PLANT AND TAILRACE ON THE BANK OF THE MISSISSIPPI.  IN
ITS PETITION TO INTERVENE IN THE PRESENT PROCEEDING FOR A FEDERAL
LICENSE, THE STATE ALLEGED THAT SUCH A DIVERSION WOULD VIOLATE SEC.
7771(IN CHAPTER 363) OF THE CODE OF IOWA, 1939.  THAT ALLEGATION
TOUCHES THE PRINCIPAL QUESTION IN THIS CASE.    FN5  "SEC.  10.  ALL
LICENSES ISSUED UNDER THIS PART SHALL BE ON THE FOLLOWING CONDITIONS: 

"(A)  THAT THE PROJECT ADOPTED, INCLUDING THE MAPS, PLANS, AND
SPECIFICATIONS, SHALL BE SUCH AS IN THE JUDGMENT OF THE COMMISSION WILL
BE BEST ADAPTED TO A COMPREHENSIVE PLAN FOR IMPROVING OR DEVELOPING A
WATERWAY OR WATERWAYS FOR THE USE OR BENEFIT OF INTERSTATE OR FOREIGN
COMMERCE, FOR THE IMPROVEMENT AND UTILIZATION OF WATERPOWER
DEVELOPMENT, AND FOR OTHER BENEFICIAL PUBLIC USES, INCLUDING
RECREATIONAL PURPOSES; AND IF NECESSARY IN ORDER TO SECURE SUCH PLAN
THE COMMISSION SHALL HAVE AUTHORITY TO REQUIRE THE MODIFICATION OF ANY
PROJECT AND OF THE PLANS AND SPECIFICATIONS OF THE PROJECT WORKS BEFORE
APPROVAL."  49 STAT. 842, 16 U.S.C. SEC. 803(A). 

FN6  "SEC.  9.  THAT EACH APPLICANT FOR A LICENSE HEREUNDER SHALL
SUBMIT TO THE COMMISSION - 

     .         . .         .         . 

"(B)  SATISFACTORY EVIDENCE THAT THE APPLICANT HAS COMPLIED WITH THE
REQUIREMENTS OF THE LAWS OF THE STATE OR STATES WITHIN WHICH THE
PROPOSED PROJECT IS TO BE LOCATED WITH RESPECT TO BED AND BANKS AND TO
THE APPROPRIATION, DIVERSION, AND USE OF WATER FOR POWER PURPOSES AND
WITH RESPECT TO THE RIGHT TO ENGAGE IN THE BUSINESS OF DEVELOPING,
TRANSMITTING, AND DISTRIBUTING POWER, AND IN ANY OTHER BUSINESS
NECESSARY TO EFFECT THE PURPOSES OF A LICENSE UNDER THIS ACT."  41
STAT. 1068, 16 U.S.C. SEC. 802(B). 

FN7  "SEC.  4.  THE COMMISSION IS HEREBY AUTHORIZED AND EMPOWERED - 

     .         .        .         .         . 

"(E)  TO ISSUE LICENSES  ... TO ANY CORPORATION ORGANIZED UNDER THE
LAWS OF THE UNITED STATES OR ANY STATE THEREOF,  ...  FOR THE PURPOSE
OF CONSTRUCTING, OPERATING, AND MAINTAINING DAMS, WATER CONDUITS,
RESERVOIRS, POWER HOUSES, TRANSMISSION LINES, OR OTHER PROJECT WORKS
NECESSARY OR CONVENIENT FOR THE DEVELOPMENT AND IMPROVEMENT OF
NAVIGATION AND FOR THE DEVELOPMENT, TRANSMISSION, AND UTILIZATION OF
POWER ACROSS, ALONG, FROM, OR IN ANY OF THE STREAMS OR OTHER BODIES OF
WATER OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS AUTHORITY TO
REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES, OR
UPON ANY PART OF THE PUBLIC LANDS  ...  OF THE UNITED STATES  ...:
PROVIDED FURTHER, THAT NO LICENSE AFFECTING THE NAVIGABLE CAPACITY OF
ANY NAVIGABLE WATERS OF THE UNITED STATES SHALL BE ISSUED UNTIL THE
PLANS OF THE DAM OR OTHER STRUCTURES AFFECTING NAVIGATION HAVE BEEN
APPROVED BY THE CHIEF OF ENGINEERS AND THE SECRETARY OF WAR.  WHENEVER
THE CONTEMPLATED IMPROVEMENT IS, IN THE JUDGMENT OF THE COMMISSION,
DESIRABLE AND JUSTIFIED IN THE PUBLIC INTEREST FOR THE PURPOSE OF
IMPROVING OR DEVELOPING A WATERWAY OR WATERWAYS FOR THE USE OR BENEFIT
OF INTERSTATE OR FOREIGN COMMERCE, A FINDING TO THAT EFFECT SHALL BE
MADE BY THE COMMISSION AND SHALL BECOME A PART OF THE RECORDS OF THE
COMMISSION:..."  49 STAT. 840, 16 U.S.C. SEC. 797(E).  SEE ALSO, SEC.
23(B), NOTE 2, SUPRA. 

FN8  SECTIONS 7771, 7776, 7792 AND 7796 OF CHAPTER 363 HAVE A LESS
DIRECT RELATION TO THE ISSUE BUT WOULD BE SUPERSEDED BY THE FEDERAL
POWER ACT IF SEC. 7767 IS SUPERSEDED BY IT. 

FN9  SEE SEC. 10(A), NOTE 5, SUPRA; SEC. 23(B), NOTE 2, SUPRA; AND
SEC. 4(E), NOTE 7, SUPRA. 

FN10  SEE SEC. 10(A), NOTE 5, SUPRA; AND ALSO: 

"SEC. 10.  ALL LICENSES ISSUED UNDER THIS PART SHALL BE ON THE
FOLLOWING CONDITIONS:... 

"(B)  THAT EXCEPT WHEN EMERGENCY SHALL REQUIRE FOR THE PROTECTION OF
NAVIGATION, LIFE, HEALTH, OR PROPERTY, NO SUBSTANTIAL ALTERATION OR
ADDITION NOT IN CONFORMITY WITH THE APPROVED PLANS SHALL BE MADE TO ANY
DAM OR OTHER PROJECT WORKS CONSTRUCTED HEREUNDER  ...  WITHOUT THE
PRIOR APPROVAL OF THE COMMISSION; AND ANY EMERGENCY ALTERATION OR
ADDITION SO MADE SHALL THEREAFTER BE SUBJECT TO SUCH MODIFICATION AND
CHANGE AS THE COMMISSION MAY DIRECT. 

"(C)  THAT THE LICENSEE SHALL MAINTAIN THE PROJECT WORKS IN A
CONDITION OF REPAIR ADEQUATE FOR THE PURPOSES OF NAVIGATION AND FOR THE
EFFICIENT OPERATION OF SAID WORKS IN THE DEVELOPMENT AND TRANSMISSION
OF POWER, SHALL MAKE ALL NECESSARY RENEWALS AND REPLACEMENTS, SHALL
ESTABLISH AND MAINTAIN ADEQUATE DEPRECIATION RESERVES FOR SUCH
PURPOSES, SHALL SO MAINTAIN AND OPERATE SAID WORKS AS NOT TO IMPAIR
NAVIGATION, AND SHALL CONFORM TO SUCH RULES AND REGULATIONS AS THE
COMMISSION MAY FROM TIME TO TIME PRESCRIBE FOR THE PROTECTION OF LIFE,
HEALTH, AND PROPERTY...."  49 STAT. 842, 16 U.S.C. SEC. 803(B) AND
(C). 

FN11  REPORT FROM THE CHIEF OF ENGINEERS ON THE IOWA RIVER AND ITS
TRIBUTARIES MADE IN 1929 COVERING NAVIGATION, FLOOD CONTROL, POWER
DEVELOPMENT AND IRRIGATION.  H.R. DOC. NO. 134, 71ST CONG., 2D SESS.,
86, 87, 90. 

FN12  SEE NOTES 7, 5, 10 AND 2, SUPRA. 

FN13  IN ADDITION TO THOSE GIVEN IN THE TEXT, ANOTHER EXAMPLE OF
CONFLICT BETWEEN THE PROJECT REQUIREMENTS OF THE IOWA STATUTES AND
THOSE OF THE FEDERAL POWER ACT APPEARS IN SEC. 7792 OF THE IOWA CODE. 
THAT SECTION REQUIRES THE BEGINNING OF CONSTRUCTION OF THE PROJECT DAM
OR RACEWAY WITHIN ONE YEAR AND THE COMPLETION OF THE PLANT WITHIN THREE
YEARS AFTER THE GRANTING OF THE PERMIT.  THIS CONFLICTS WITH SEC. 13 OF
THE FEDERAL POWER ACT WHICH MAKES THIS LARGELY DISCRETIONARY WITH THE
FEDERAL POWER COMMISSION BUT GENERALLY CONTEMPLATES THAT THE
CONSTRUCTION BE COMMENCED WITHIN TWO YEARS FROM THE DATE OF THE
LICENSE.  SO IN SEC. 7793 OF THE IOWA CODE, THE LIFE OF A PERMIT
CONFLICTS WITH THE TERM OF A LICENSE UNDER SEC. 6 OF THE FEDERAL POWER
ACT. 

FN14  SEE NOTE 6, SUPRA. 

FN15  "SEC.  9.  THAT EACH APPLICANT FOR A LICENSE HEREUNDER SHALL
SUBMIT TO THE COMMISSION - 

"(A)  SUCH MAPS, PLANS, SPECIFICATIONS, AND ESTIMATES OF COST AS MAY
BE REQUIRED FOR A FULL UNDERSTANDING OF THE PROPOSED PROJECT.  SUCH
MAPS, PLANS, AND SPECIFICATIONS WHEN APPROVED BY THE COMMISSION SHALL
BE MADE A PART OF THE LICENSE; AND THEREAFTER NO CHANGE SHALL BE MADE
IN SAID MAPS, PLANS, OR SPECIFICATIONS UNTIL SUCH CHANGES SHALL HAVE
BEEN APPROVED AND MADE A PART OF SUCH LICENSE BY THE COMMISSION. 

     .         .         .         .         . 

"(C)  SUCH ADDITIONAL INFORMATION AS THE COMMISSION MAY REQUIRE."  41
STAT. 1068, 16 U.S.C. SEC. 802(A) AND (C). 

FN16  THESE RULES AND REGULATIONS ARE ISSUED PURSUANT TO SECS. 303,
308 AND 309, 49 STAT. 855, 858, 16 U.S.C. SECS. 825B, 825G AND 825H,
INTERPRETING SECS. 4 AND 9 OF THE FEDERAL POWER ACT.  FEDERAL POWER
COMMISSION RULES OF PRACTICE AND REGULATIONS, 1938, SECS. 4.40-4.51, 18
C.F.R. SECS. 4.40-4.51.  THEY COVER THE FIELD SO FULLY AS TO LEAVE NO
PURPOSE TO BE SERVED BY FILING COMPARABLE INFORMATION REQUIRED IN SOME
ALTERNATIVE FORM UNDER STATE LAWS AS A BASIS FOR A STATE PERMIT. 
EXHIBITS D AND E, REQUIRED BY SEC. 4.41 OF THE REGULATIONS, ARE TO
SATISFY SEC. 9(B) OF THE FEDERAL POWER ACT AND HAVE TO DO ESPECIALLY
WITH PROPERTY RIGHTS IN THE USE OF WATER UNDER THE STATE LAWS AND DO
NOT ALTER THE LEGAL SITUATION PRESENTED BY THE ACT ITSELF.  THESE
EXHIBITS ARE DESCRIBED AS FOLLOWS: 

"EXHIBIT D. - EVIDENCE THAT THE APPLICANT HAS COMPLIED WITH THE
REQUIREMENTS OF THE LAWS OF THE STATE OR STATES WITHIN WHICH THE
PROJECT IS TO BE LOCATED WITH RESPECT TO BED AND BANKS AND TO THE
APPROPRIATION, DIVERSION, AND USE OF WATER FOR POWER PURPOSES AND WITH
RESPECT TO THE RIGHT TO ENGAGE IN THE BUSINESS OF DEVELOPING,
TRANSMITTING, AND DISTRIBUTING POWER, AND IN ANY OTHER BUSINESS,
NECESSARY TO EFFECT THE PURPOSES OF THE LICENSE APPLIED FOR, INCLUDING
A CERTIFICATE OF CONVENIENCE AND NECESSITY, IF REQUIRED.  THIS EVIDENCE
SHALL BE ACCOMPANIED BY A STATEMENT OF THE STEPS THAT HAVE BEEN TAKEN
AND THE STEPS THAT REMAIN TO BE TAKEN TO ACQUIRE FRANCHISE OR OTHER
RIGHTS FROM STATES, COUNTIES, AND MUNICIPALITIES BEFORE THE PROJECT CAN
BE COMPLETED AND PUT INTO OPERATION. 

"EXHIBIT E. - THE NATURE, EXTENT, AND OWNERSHIP OF WATER RIGHTS WHICH
THE APPLICANT PROPOSES TO USE IN THE DEVELOPMENT OF THE PROJECT COVERED
BY APPLICATION, TOGETHER WITH SATISFACTORY EVIDENCE THAT THE APPLICANT
HAS PROCEEDED AS FAR AS PRACTICABLE IN PERFECTING ITS RIGHTS TO USE
SUFFICIENT WATER FOR PROPER OPERATION OF THE PROJECT WORKS.  A
CERTIFICATE FROM THE PROPER STATE AGENCY SETTING FORTH THE EXTENT AND
VALIDITY OF THE APPLICANT'S WATER RIGHTS SHALL BE APPENDED IF
PRACTICABLE.  IN CASE THE APPROVAL OR PERMISSION OF ONE OR MORE STATE
AGENCIES IS REQUIRED BY STATE LAW AS A CONDITION PRECEDENT TO THE
APPLICANT'S RIGHT TO TAKE OR USE WATER FOR THE OPERATION OF THE PROJECT
WORKS, DULY CERTIFIED EVIDENCE OF SUCH APPROVAL OR PERMISSION, OR A
SHOWING OF CAUSE WHY SUCH EVIDENCE CANNOT BE REASONABLY SUBMITTED SHALL
ALSO BE FILED.  WHEN A STATE CERTIFICATE IS INVOLVED, ONE CERTIFIED
COPY AND THREE UNCERTIFIED COPIES SHALL BE SUBMITTED."  FEDERAL POWER
COMMISSION RULES OF PRACTICE AND REGULATIONS, EFFECTIVE JUNE 1, 1938,
PP. 21-22. 

FN17  THE FEDERAL GOVERNMENT TOOK ITS GREATEST STEP TOWARD EXERCISING
ITS JURISDICTION IN THIS FIELD BY AUTHORIZING FEDERAL LICENSES, UNDER
THE FEDERAL WATER POWER ACT OF 1920(41 STAT. 1063), FOR TERMS OF 50
YEARS FOR THE DEVELOPMENT OF WATER POWER IN THE NAVIGABLE WATERS OF THE
UNITED STATES.  THAT ACT WAS LIMITED IN 1921 BY THE EXCLUSION FROM IT
OF WATER POWER PROJECTS IN NATIONAL PARKS OR NATIONAL MONUMENTS.  41
STAT. 1353.  THE COMMISSION WAS REORGANIZED SO AS TO IMPROVE ITS
ADMINISTRATIVE CAPACITY IN 1930.  46 STAT. 797.  THE ACT WAS GENERALLY
REVISED AND PERFECTED ON AUGUST 26, 1935, 49 STAT. 803, WHEN IT
RECEIVED THE NAME OF THE FEDERAL POWER ACT.  IT WAS THEN MADE PART I OF
TITLE II OF THE PUBLIC UTILITY ACT OF 1935. 

THIS LAST STEP WAS SHORTLY AFTER THE DECISION OF THIS COURT IN UNITED
STATES V. WEST VIRGINIA, 295 U.S. 463, AND IT HAS SERVED TO CLARIFY THE
LAW AS IT EXISTED PRIOR TO THAT DECISION.  AMONG OTHER THINGS, THIS
LAST STEP AMENDED SEC. 23 SO AS EXPRESSLY TO REQUIRE A FEDERAL LICENSE
FOR EVERY WATER POWER PROJECT IN THE NAVIGABLE WATERS OF THE UNITED
STATES.  IT ALSO MADE MANDATORY, INSTEAD OF DISCRETIONARY, THE FILING
WITH THE FEDERAL POWER COMMISSION OF A DECLARATION OF INTENTION BY
ANYONE INTENDING TO CONSTRUCT A PROJECT IN NON-NAVIGABLE WATERS OVER
WHICH CONGRESS HAD JURISDICTION UNDER ITS AUTHORITY TO REGULATE
COMMERCE.  IT CONTINUED ITS RECITAL OF PERMISSION TO CONSTRUCT SUCH
PROJECTS UPON COMPLIANCE WITH THE STATE LAWS, RATHER THAN WITH THE
FEDERAL POWER ACT, PROVIDED THE PROJECTS WERE NOT IN NAVIGABLE WATERS
OF THE UNITED STATES, DID NOT AFFECT THE INTERESTS OF INTERSTATE OR
FOREIGN COMMERCE AND DID NOT AFFECT THE PUBLIC LANDS OR RESERVATIONS OF
THE UNITED STATES.  THESE AMENDMENTS SHARPENED THE LINE BETWEEN THE
STATE AND FEDERAL JURISDICTIONS AND HELPED TO MAKE IT CLEAR THAT THE
FEDERAL GOVERNMENT WAS ASSUMING RESPONSIBILITY THROUGH THE FEDERAL
POWER COMMISSION FOR THE GRANTING OF APPROPRIATE LICENSES FOR THE
DEVELOPMENT OF WATER POWER RESOURCES IN THE NAVIGABLE WATERS OF THE
UNITED STATES.  SEE ALSO THE RAPID DEVELOPMENT OF FEDERAL PROJECTS
SHOWN IN THE ANNUAL REPORTS OF THE FEDERAL POWER COMMISSION 1921-1945. 

FN18  H.R. DOC. NO. 134, 71ST CONG., 2D SESS., REFLECTING THE
RECOMMENDATIONS OF THE DISTRICT ENGINEER, PP. 8-90; DIVISION ENGINEER,
P. 90; MISSISSIPPI RIVER COMMISSION, PP. 90-93; BOARD OF ENGINEERS FOR
RIVERS AND HARBORS, PP. 3-8; AND THE CHIEF OF ENGINEERS, PP. 1-3.  SEE
ESPECIALLY PP. 86, 87, 90. 

FN19  INSTANCES OF SUCH PROVISIONS ARE THE FOLLOWING:  SEC. 4(A) AND
(C), COOPERATION OF THE COMMISSION WITH THE EXECUTIVE DEPARTMENTS AND
OTHER AGENCIES OF THE STATE AND NATIONAL GOVERNMENTS IS REQUIRED IN THE
INVESTIGATION OF SUCH SUBJECTS AS THE UTILIZATION OF WATER RESOURCES,
WATER-POWER INDUSTRY, LOCATION, CAPACITY, DEVELOPMENT COSTS AND THE
RELATION TO MARKETS OF POWER SITES, AND THE FAIR VALUE OF POWER.  SEC.
4(F), NOTICE OF APPLICATION FOR A PRELIMINARY PERMIT IS TO GO TO ANY
STATE OR MUNICIPALITY LIKELY TO BE INTERESTED.  SEC. 7(A), IN ISSUING
PERMITS AND LICENSES PREFERENCE IS TO BE GIVEN TO STATES AND
MUNICIPALITIES.  SEC. 10(E), LICENSES TO STATES AND MUNICIPALITIES
UNDER CERTAIN CIRCUMSTANCES SHALL BE ISSUED AND ENJOYED WITHOUT
CHARGE.  SEC. 14, A RIGHT IS RESERVED NOT ONLY TO THE UNITED STATES BUT
TO ANY STATE OR MUNICIPALITY TO TAKE OVER ANY LICENSED PROJECT AT ANY
TIME BY CONDEMNATION AND PAYMENT OF JUST COMPENSATION.  SECS. 19 AND
20, REGULATION OF SERVICE AND RATES IS PRESERVED TO THE STATES. 

FN20  THE LEGISLATIVE HISTORY OF SEC. 27 CONFIRMS THESE CONCLUSIONS. 
THE LANGUAGE IS SIMILAR TO THAT OF SEC. 8 OF THE RECLAMATION ACT OF
1902, 32 STAT. 390, 43 U.S.C. SEC. 383, WHICH PROVIDES, "NOTHING IN
SEVERAL LISTED SECTIONS) IN THIS ACT SHALL BE CONSTRUED AS AFFECTING OR
INTENDED TO AFFECT OR TO IN ANY WAY INTERFERE WITH THE LAWS OF ANY
STATE OR TERRITORY RELATING TO THE CONTROL, APPROPRIATION, USE, OR
DISTRIBUTION OF WATER USED IN IRRIGATION, OR ANY VESTED RIGHT ACQUIRED
THEREUNDER,  ..." 

THIS RESTRICTED CLAUSE APPEARED IN A MODIFIED AND BROADER FORM IN THE
FERRIS PUBLIC LANDS BILL OF 1916, H.R. NO. 408, 64TH CONG., 1ST SESS.: 

"SEC. 13.  THAT NOTHING IN THIS ACT SHALL BE CONSTRUED AS AFFECTING
OR INTENDED TO AFFECT OR TO IN ANY WAY INTERFERE WITH THE LAWS OF ANY
STATE RELATING TO THE CONTROL, APPROPRIATION, USE, OR DISTRIBUTION OF
WATER." 

IT ALSO HAD APPEARED AS SEC. 14 OF THE FERRIS BILL OF 1914, H.R. NO.
16673, 63D CONG., 2D SESS., AS FOLLOWS: 

"SEC. 14.  THAT NOTHING IN THIS ACT SHALL BE CONSTRUED AS AFFECTING
OR INTENDED TO AFFECT OR TO IN ANY WAY INTERFERE WITH THE LAWS OF ANY
STATE RELATING TO THE CONTROL, APPROPRIATION, USE, OR DISTRIBUTION OF
WATER USED IN IRRIGATION OR FOR MUNICIPAL OR OTHER USES, OR ANY VESTED
RIGHT ACQUIRED THEREUNDER."    DISCUSSION IN CONGRESS FURTHER
EMPHASIZED THE PURELY PROPRIETARY SENSE IN WHICH THIS LANGUAGE WAS
USED.  51 CONG. REC. 13630-13631. 

THE CLAUSE REAPPEARED IN THE BILL WHICH BECAME THE FEDERAL WATER
POWER ACT AND WAS THERE ENACTED INTO THE LAW IN ITS PRESENT FORM.  THE
USE, IN SEC. 27 OF THE FEDERAL POWER ACT, OF LANGUAGE HAVING A LIMITED
MEANING IN RELATION TO PROPRIETARY RIGHTS UNDER THE RECLAMATION LAW AND
IN PUBLIC LAND BILLS, CARRIES THAT ESTABLISHED MEANING OF THE LANGUAGE
INTO THE FEDERAL POWER ACT IN THE ABSENCE OF ANYTHING IN THE ACT
CALLING FOR A DIFFERENT INTERPRETATION OF THE LANGUAGE. 

FN21  SEE NOTE 6. 

FN22  SEE NOTE 15. 

FN23  THE NATION-WIDE DRIVE FOR THE PASSAGE OF THIS LEGISLATION DATES
BACK AT LEAST TO THE ADMINISTRATION OF THEODORE ROOSEVELT AND TO THE
ENTHUSIASTIC SUPPORT OF "THE CONSERVATIONISTS" LED BY GIFFORD PINCHOT,
AS CHIEF OF THE DIVISION OF FORESTRY. 

"WITH ALL ITS FAULTS THE FEDERAL WATER POWER ACT OF 1920, MARKED A
GREAT ADVANCE.  IT ESTABLISHED FIRMLY THE PRINCIPLE OF FEDERAL
REGULATION OF WATER POWER PROJECTS, LIMITED LICENSES TO NOT MORE THAN
FIFTY YEARS, AND PROVIDED FOR GOVERNMENT RECAPTURE OF THE POWER AT THE
END OF THE FRANCHISE. 

"FOR THE FIRST TIME, THE ACT OF 1920 ESTABLISHED A NATIONAL POLICY IN
THE USE AND DEVELOPMENT OF WATER POWER ON PUBLIC LANDS AND NAVIGABLE
STREAMS."  PINCHOT, THE LONG STRUGGLE FOR EFFECTIVE FEDERAL WATER POWER
LEGISLATION (1945), 14 GEO. WASH. L. REV. 9, 19.  SEE ALSO, KERWIN,
FEDERAL WATER-POWER LEGISLATION, C. VI. 

THE PRESENT ACT WAS DISTINCTLY AN EFFORT TO PROVIDE FEDERAL CONTROL
OVER AND GIVE FEDERAL ENCOURAGEMENT TO WATER POWER DEVELOPMENT.  IT
GREW OUT OF A BILL PREPARED BY THE SECRETARIES OF WAR, INTERIOR AND
AGRICULTURE.  IT WAS RECOMMENDED BY A SPECIAL COMMITTEE ON WATER POWER
CREATED IN THE HOUSE OF REPRESENTATIVES AT THE SUGGESTION OF PRESIDENT
WILSON.  SEE STATEMENT BY REPRESENTATIVE SIMS, CHAIRMAN OF THE
COMMITTEE ON WATER POWER, 56 CONG. REC. 9797-9798.  THE BILL WAS TO
PROVIDE "A METHOD BY WHICH THE WATER POWERS OF THE COUNTRY, WHEREVER
LOCATED, CAN BE DEVELOPED BY PUBLIC OR PRIVATE AGENCIES UNDER
CONDITIONS WHICH WILL GIVE THE NECESSARY SECURITY TO THE CAPITAL
INVESTED AND AT THE SAME TIME PROTECT AND PRESERVE EVERY LEGITIMATE
PUBLIC INTEREST....  THE PROBLEMS ARE NATIONAL, RATHER THAN LOCAL; THEY
TRANSCEND STATE LINES AND CANNOT BE HANDLED ADEQUATELY EXCEPT BY OR IN
CONJUNCTION WITH NATIONAL AGENCIES."  STATEMENT BY DAVID F. HOUSTON,
SECRETARY OF AGRICULTURE, QUOTED IN H.R. REP. NO. 61, 66TH CONG., 1ST
SESS., P. 5. 

FN24  NEW JERSEY V. SARGENT, 269 U.S. 328; UNITED STATES V.
APPALACHIAN POWER CO., 311 U.S. 377; CLARION RIVER POWER CO. V. SMITH,
59 F.2D 861, CERTIORARI DENIED, 287 U.S. 639; ALABAMA POWER CO. V.
MCNINCH, 94 F.2D 601; PENNSYLVANIA WATER & POWER CO. V. FEDERAL POWER
COMMISSION, 74 APP. D.C. 351, 123 F.2D 155, CERTIORARI DENIED, 315 U.S.
806; ALABAMA POWER CO. V. FEDERAL POWER COMMISSION, 75 U.S. APP. D.C.
315, 128 F.2D 280, CERTIORARI DENIED, 317 U.S. 652; PUGET SOUND POWER &
LIGHT CO. V. FEDERAL POWER COMMISSION, 78 U.S. APP. D.C. 143, 137 F.2D
701; WISCONSIN PUBLIC SERVICE CORP. V. FEDERAL POWER COMMISSION, 147
F.2D 743, CERTIORARI DENIED, 325 U.S. 880; GEORGIA POWER CO. V. FEDERAL
POWER COMMISSION, 152 F.2D 908. 

FN25  SECTIONS 4(E) AND 10(A), COMPREHENSIVE PLANS REQUIRED; SECS.
4(F) AND 5, PRELIMINARY PERMITS; SEC. 4(G), INVESTIGATION OF POWER
RESOURCES; SEC. 6, LICENSE TERM OF 50 YEARS; SEC. 7(A) DEVELOPMENT OF
WATER RESOURCES ON A NATIONAL BASIS; SEC. 7(B), DEVELOPMENTS BY THE
UNITED STATES ITSELF; SEC. 13, PROMPT CONSTRUCTION REQUIRED; SEC. 14,
RECAPTURE OF PROJECTS AND PAYMENT FOR THEM BY THE GOVERNMENT UPON
EXPIRATION OF LICENSES, THUS GIVING THE GOVERNMENT A DIRECT INTEREST IN
AND REASON FOR CONTROL OF EVERY FEATURE OF EACH LICENSED PROJECT; SEC.
21, FEDERAL POWERS OF CONDEMNATION VESTED IN LICENSEE; AND SEC. 28,
PROHIBITION OF AMENDMENT OR REPEAL OF LICENSES. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THIS CASE DOES NOT PRESENT ONE OF THOSE LARGE CONSTITUTIONAL ISSUES
WHICH, BECAUSE THEY ARE SO LARGELY ABSTRACT, HAVE THROUGHOUT ITS
HISTORY SO OFTEN DIVIDED THE COURT.  THE CONTROVERSY, AS I UNDERSTAND
IT, IS CONCERNED WITH THE PROPER ADMINISTRATION OF A LAW IN WHICH
CONGRESS HAS RECOGNIZED THE INTERESTS OF THE STATES AS WELL AS OF THE
UNITED STATES AND HAS ENTRUSTED THE PROPER ADJUSTMENT OF THESE NATION
STATE RELATIONS TO THE INTERRELATED FUNCTIONS OF THE FEDERAL POWER
COMMISSION AND THE COURTS. 

WE ARE ALL AGREED THAT CONGRESS HAS THE CONSTITUTIONAL POWER TO
PROMOTE A COMPREHENSIVE DEVELOPMENT OF THE NATION'S WATER RESOURCES AND
THAT IT HAS EXERCISED ITS AUTHORITY BY THE FEDERAL POWER ACT.  41 STAT.
1063, 49 STAT. 838; 16 U.S.C. SECS. 791(A) ET SEQ. SEE UNITED STATES V.
CHANDLER-DUNBAR CO., 229 U.S. 53; NEW JERSEY V. SARGENT, 269 U.S. 328;
UNITED STATES V. APPALACHIAN POWER CO., 311 U.S. 377.  AND IN VIEW OF
CONGRESS' POWER, OF COURSE THIS ENACTMENT OVERRIDES ALL STATE
LEGISLATION IN CONFLICT WITH IT.  BUT THE NATIONAL POLICY FOR WATER
POWER DEVELOPMENT FORMULATED BY THE FEDERAL POWER ACT EXPLICITLY
RECOGNIZES REGARD FOR CERTAIN INTERESTS OF THE STATES AS PART OF THAT
NATIONAL POLICY.  THIS DOES NOT IMPLY THAT GENERAL, UNCRITICAL NOTIONS
ABOUT SO-CALLED "STATES' RIGHTS" ARE TO BE READ INTO WHAT CONGRESS HAS
WRITTEN.  IT DOES MEAN THAT WE MUST ADHERE TO THE EXPRESS CONGRESSIONAL
MANDATE THAT THE PUBLIC INTEREST WHICH UNDERLIES THE FEDERAL POWER ACT
INVOLVES THE PROTECTION OF PARTICULAR MATTERS OF INTIMATE CONCERN TO
THE PEOPLE OF THE STATES IN WHICH PROPOSED PROJECTS REQUIRING THE
SANCTION OF THE FEDERAL POWER COMMISSION ARE TO BE LOCATED.  BY SEC.
9(B) OF THE ACT, 41 STAT. 1063, 1068; 16 U.S.C. SEC. 802(B),  FN1
CONGRESS EXPLICITLY REQUIRED THAT BEFORE THE COMMISSION CAN ISSUE A
LICENSE FOR THE CONSTRUCTION OF A HYDRO-ELECTRIC DEVELOPMENT, SUCH AS
THE PROPOSED PROJECT OF THE PETITIONER, THE COMMISSION MUST HAVE
"SATISFACTORY EVIDENCE THAT THE APPLICANT HAS COMPLIED WITH THE
REQUIREMENTS OF THE LAWS OF THE STATE" IN REFERENCE TO THE MATTERS
ENUMERATED. 

WHETHER THE COMMISSION HAS SUCH "SATISFACTORY EVIDENCE" NECESSARILY
DEPENDS UPON WHAT THE REQUIREMENTS OF STATE LAW ARE.  IN TURN, WHAT THE
REQUIREMENTS OF STATE LAW ARE OFTEN DEPENDS UPON THE APPROPRIATE BUT
UNSETTLED CONSTRUCTION OF STATE LAW.  AND SO, THE COMMISSION MAY WELL
BE CONFRONTED, AS IT WAS IN THIS CASE, WITH THE NECESSITY OF
DETERMINING WHAT THE STATE LAW REQUIRES BEFORE IT CAN DETERMINE WHETHER
THE APPLICANT HAS SATISFIED IT, AND, THEREFORE, WHETHER THE CONDITION
FOR EXERCISING THE COMMISSION'S POWER HAS BEEN FULFILLED. 

TO SAFEGUARD THE INTERESTS OF THE STATES THUS PROTECTED BY SEC. 9(B),
CONGRESS HAS DIRECTED THAT NOTICE BE GIVEN TO THE STATE WHEN AN
APPLICATION HAS BEEN FILED FOR A LICENSE, THE GRANTING OF WHICH MAY
ESPECIALLY AFFECT A STATE.  SEC. 4(F), 49 STAT. 838, 841; 16 U.S.C.
SEC. 797(F).  IF A STATE DOES NOT CHALLENGE THE CLAIM OF AN APPLICANT,
THE EVIDENCE SUBMITTED BY THE APPLICANT, IF FOUND TO BE SATISFACTORY BY
THE COMMISSION, HAS MET THE DEMANDS OF SEC. 9(B), AND A STATE CANNOT
THEREAFTER CHALLENGE THE COMMISSION'S DETERMINATION.  BUT A REAL
PROBLEM IN ADMINISTRATION IS PRESENTED TO THE POWER COMMISSION WHEN A
STATE DOES INTERVENE AND CLAIMS THAT THE APPLICANT HAS NOT COMPLIED
WITH ITS LAWFUL REQUIREMENTS.  FOR, BEFORE THE COMMISSION CAN MEET THE
DUTY PLACED ON IT BY SEC. 9(B), IT MUST ASCERTAIN THE SCOPE AND MEANING
OF THE STATE LAW.  SUPPOSE THE STATE LAW IS NOT CLEAR OR IS SUSCEPTIBLE
OF DIFFERENT CONSTRUCTIONS AND HAS RECEIVED NO CONSTRUCTION BY THE ONLY
AUTHORITATIVE SOURCE FOR THE INTERPRETATION OF STATE LAWS, NAMELY, THE
HIGHEST COURT OF THE STATE.  MUST THE FEDERAL POWER COMMISSION GIVE AN
INDEPENDENT INTERPRETATION OF THE LAWS OF THE STATE?  THIS IS NOT TO
SUGGEST AN UNREAL OR HYPOTHETICAL SITUATION.  THE FEDERAL POWER
COMMISSION SUBMITTED HERE A COMPILATION OF LAWS RELATING TO STATE
REQUIREMENTS RELEVANT UNDER SEC. 9(B) FOR NOT LESS THAN THIRTY STATES. 
ARE THE LAWYERS OF THE COMMISSION TO MAKE THEMSELVES THE ORIGINATING
INTERPRETERS OF THE LAWS OF THESE STATES?  ARE THEY TO CONSTRUE, FOR
INSTANCE, THE LAWS OF NEW JERSEY AND OKLAHOMA AND ARIZONA AND ILLINOIS
WHEN THE COURTS OF THOSE STATES HAVE NOT SPOKEN?  AND IF THEY DO AND
THE STATE APPEALS FROM THE DECISION, MUST THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA BECOME THE INTERPRETER OF THESE VARIOUS LAWS? 
FINALLY, IN THE EVENT OF A FURTHER APPELLATE REVIEW IS THIS COURT TO
CONSTRUE STATE LEGISLATION WITHOUT GUIDANCE BY THE STATE COURTS?  TIME
OUT OF MIND, AND IN A VARIETY OF SITUATIONS, THIS COURT HAS ADMONISHED
AGAINST THE AVOIDABLE ASSUMPTION BY THIS COURT OF THE INDEPENDENT
CONSTRUCTION OF STATE LEGISLATION.  SEE, E.G., GILCHRIST V.
INTERBOROUGH CO., 279 U.S. 159, 207-209; BRANDEIS, J., DISSENTING, IN
RAILROAD COMM'N V. LOS ANGELES R. CO., 280 U.S. 145, 158, 164-66.  IT
IS PERTINENT TO RECALL THE CLASSIC STATEMENT OF THE REASON FOR LEAVING
TO THE CONTROLLING INTERPRETATION OF LOCAL COURTS THE MEANING OF LOCAL
LAW:  "TO ONE BROUGHT UP WITHIN IT, VARYING EMPHASIS, TACIT
ASSUMPTIONS, UNWRITTEN PRACTICES, A THOUSAND INFLUENCES GAINED ONLY
FROM LIFE, MAY GIVE TO THE DIFFERENT PARTS WHOLLY NEW VALUES THAT LOGIC
AND GRAMMAR NEVER COULD HAVE GOT FROM THE BOOKS."  DIAZ V. GONZALEZ,
261 U.S. 102, 106.  IF IT HAS BEEN DEEMED UNWISE TO THROW UPON THIS
COURT THE BURDEN OF CONSTRUING LOCAL LEGISLATION WHEN THE CONSTRUCTION
COULD BY APPROPRIATE PROCEDURE BE HAD FROM THE STATES, IT SEEMS ODD
THAT WE SHOULD REJECT THIS AS A RULE OF ADMINISTRATION ADOPTED BY THE
POWER COMMISSION. 

THAT IS ALL THAT THE COMMISSION HAS DONE IN THIS CASE.  IT HAS SAID,
IN EFFECT:  "WE DO NOT KNOW WHAT THE IOWA LAW DEMANDS OF THE
APPLICANT.  IOWA HAS A RIGHT TO MAKE CERTAIN DEMANDS UNDER SEC. 9(B)
AND UNTIL THEY ARE MET WE ARE NOT EMPOWERED TO GRANT A LICENSE TO THE
APPLICANT.  BUT WE CANNOT TELL WHETHER THEY HAVE BEEN MET, BECAUSE THE
MEANING OF THE IOWA STATUTES HAS NOT BEEN DETERMINED, AS IT EASILY CAN
BE DETERMINED, BY AN APPROPRIATE ACTION IN THE IOWA COURTS.  ONLY AFTER
SUCH AN AUTHORITATIVE PRONOUNCEMENT CAN WE KNOW WHAT OUR OBLIGATION
UNDER THE STATUTE MAY BE."  THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA THOUGHT THAT SUCH PROCEDURE MADE SENSE.  IT SEEMS TO HAVE
SAID:  "THE COMMISSION DOESN'T KNOW WHAT THE IOWA LAW REQUIRES, AND
NEITHER DO WE.  FOR WE CANNOT TELL WHAT IT REQUIRES UNTIL THE IOWA
SUPREME COURT TELLS US WHAT IT REQUIRES.  AND AN ADJUDICATION OF THAT
ISSUE CAN BE READILY SECURED IF THE APPLICANT WILL PROCEED ALONG THE
EASY PATH PROVIDED BY IOWA FOR OBTAINING SUCH AN ADJUDICATION."  151
F.2D 20.  SEE IOWA LAWS, 1943, C. 278, SEC. 306 AND LLOYD V. RAMSAY,
192 IOWA 103, 116-17, 183 N.W. 333.  EVEN WE CANNOT CONSTRUE THE
REQUIREMENTS OF IOWA LAW IN THE ABSENCE OF A DETERMINATION BY THE IOWA
SUPREME COURT.  AND IN MUCH MORE CONVENTIONAL TYPES OF LITIGATION WE
HAVE EVOLVED THE PROCEDURE WHEREBY FEDERAL LITIGATION IS STAYED UNTIL
THE STATE LAW IS AUTHORITATIVELY DETERMINED BY A STATE COURT.  E.G.,
RAILROAD COMMISSION V. PULLMAN CO., 312 U.S. 496; SPECTOR MOTOR CO. V.
MCLAUGHLIN, 323 U.S. 101; A.F. OF L. V. WATSON, 327 U.S. 582. 

WHAT REASON OF POLICY IS THERE FOR NOT APPROVING THIS MODE OF
ADJUSTING INTERESTS THAT INVOLVE A REGARD FOR BOTH FEDERAL AND STATE
ENACTMENTS?  THE FEDERAL POWER COMMISSION WHICH DEVISED THIS PROCEDURE
HAS NOT BEEN AN UNZEALOUS GUARDIAN OF THE NATIONAL INTERESTS.  E.G.,
FEDERAL POWER COMM'N V. NATURAL GAS PIPELINE CO., 315 U.S. 575; FEDERAL
POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591. 

IT IS NO ANSWER TO SUGGEST THAT THE ATTORNEY-GENERAL OF IOWA AT THE
BAR OF THIS COURT EXPRESSED A VIEW OF THE IOWA STATUTE WHICH WOULD MAKE
OBEDIENCE TO IT NEEDLESS BECAUSE OF CONFLICT WITH THE PROVISIONS OF THE
FEDERAL POWER ACT.  THE ATTORNEY-GENERAL IS NOT THE JUDICIAL ORGAN OF
THE STATE OF IOWA.  THIS COURT DOES NOT ALWAYS TAKE THE INTERPRETATION
BY THE ATTORNEY-GENERAL OF THE UNITED STATES OF A FEDERAL STATUTE.  IT
SHOULD NOT TAKE THE VIEW OF THE ATTORNEY-GENERAL OF IOWA AS
AUTHORITATIVE ON A STATUTE NOT CONSTRUED BY THE SUPREME COURT OF IOWA
WHEN WE ARE CALLED UPON TO MAKE THE ADJUSTMENT IN FEDERAL-STATE
RELATIONS WHICH CONGRESS HAS ENJOINED IN SEC. 9(B).  AFTER ALL,
ADVOCATES, INCLUDING ADVOCATES FOR STATES, ARE LIKE MANAGERS OF
PUGILISTIC AND ELECTION CONTESTANTS IN THAT THEY HAVE A PROPENSITY FOR
CLAIMING EVERYTHING.  BEFORE CONFLICT CAN BE FOUND BETWEEN FEDERAL AND
STATE LEGISLATION, CONSTRUCTION MUST BE GIVEN THE STATE LEGISLATION. 
AVOIDANCE OF CONFLICT IS ITSELF AN IMPORTANT FACTOR RELEVANT TO
CONSTRUCTION.  AND SO, CONSTRUCTION OF STATE LEGISLATION RELATING TO
THE MATTERS DEALT WITH IN THE FEDERAL POWER ACT IS SUBTLE BUSINESS AND
A SUBTLETY PECULIARLY WITHIN THE DUTY, SKILL, AND UNDERSTANDING OF
STATE JUDGES. 

IF IT BE SAID THAT THE PROCEDURE FOR WHICH THE FEDERAL POWER
COMMISSION CONTENDS MAY TAKE TIME, THERE IS NO ASSURANCE THAT A
CONTESTED CASE LIKE THIS WILL NOT TAKE JUST AS MUCH TIME HEREAFTER. 
THE COMMISSION MUST PASS INDEPENDENTLY ON AN UNCONSTRUED STATE STATUTE;
ITS CONSTRUCTION MAY THEN COME BEFORE THE COURT OF APPEALS FOR THE
DISTRICT AND EVENTUALLY BEFORE THIS COURT.  EVEN THEN THE POSSIBILITY
REMAINS THAT THIS COURT'S DECISION WILL BE FOLLOWED BY ONE IN THE STATE
COURT RULING, AS HAS NOT BEEN UNKNOWN, THAT THIS COURT'S INTERPRETATION
WAS IN ERROR.  IN ANY EVENT, MERE SPEED IS NOT A TEST OF JUSTICE. 
DELIBERATE SPEED IS.  DELIBERATE SPEED TAKES TIME.  BUT IT IS TIME WELL
SPENT.    WITH DUE RESPECT, I HAVE NOT BEEN ABLE TO DISCOVER AN
ADEQUATE ANSWER TO THE POSITION OF THE FEDERAL POWER COMMISSION, THUS
SUMMARIZED IN THE SOLICITOR-GENERAL'S BRIEF: 

"UNLESS SECTION 9(B) IS TO BE GIVEN NO EFFECT WHATEVER, SOME EVIDENCE
OF COMPLIANCE WITH AT LEAST SOME STATE LAWS IS A PREREQUISITE TO THE
ISSUANCE OF A FEDERAL LICENSE, AND THE VIEW OF THE COURT BELOW, THAT
THERE IS NO OCCASION, IN THIS CASE, TO ANTICIPATE CONFLICTS BETWEEN
STATE AND FEDERAL AUTHORITY AND THE CONSEQUENT INVALIDITY OF THE STATE
LAW, IS NOT AN UNREASONABLE ONE.  "TO PREDETERMINE, EVEN IN THE LIMITED
FIELD OF WATER POWER, THE RIGHTS OF DIFFERENT SOVEREIGNTIES, PREGNANT
WITH FUTURE CONTROVERSIES, IS BEYOND THE JUDICIAL FUNCTION.'  UNITED
STATES V. APPALACHIAN ELECTRIC POWER CO., 311 U.S. 377, 423.  HERE
PETITIONER, SINCE THE MODIFICATION OF ITS PLANS, HAS GIVEN THE STATE
EXECUTIVE COUNCIL AND THE IOWA COURTS NO OPPORTUNITY TO EXPRESS THEIR
VIEWS ON ITS PROPOSED PROJECT WITH REFERENCE TO MATTERS WHICH MAY BE
PECULIARLY OF LOCAL CONCERN; WITHOUT SUCH AN EXPRESSION, IT IS
DIFFICULT TO ASSESS THE PROPRIETY OF WHAT IS ONLY AN ANTICIPATED
EXERCISE OF THE STATE'S POWER." 

ACCORDINGLY, I THINK THAT THE JUDGMENT SHOULD BE AFFIRMED. 

FN1  "SEC.  9.  THAT EACH APPLICANT FOR A LICENSE HEREUNDER SHALL
SUBMIT TO THE COMMISSION  ... 

(B)  SATISFACTORY EVIDENCE THAT THE APPLICANT HAS COMPLIED WITH THE
REQUIREMENTS OF THE LAWS OF THE STATE OR STATES WITHIN WHICH THE
PROPOSED PROJECT IS TO BE LOCATED WITH RESPECT TO BED AND BANKS AND TO
THE APPROPRIATION, DIVERSION, AND USE OF WATER FOR POWER PURPOSES AND
WITH RESPECT TO THE RIGHT TO ENGAGE IN THE BUSINESS OF DEVELOPING,
TRANSMITTING, AND DISTRIBUTING POWER, AND IN ANY OTHER BUSINESS
NECESSARY TO EFFECT THE PURPOSES OF A LICENSE UNDER THIS ACT." 
..END :





HEISER V. WOODRUFF, 327 U.S. 726 


NO. 496.  ARGUED MARCH 5, 1946.  - DECIDED APRIL 22, 1946.  - 150 F.2D
869, REVERSED. 


1.  WHERE, IN A BANKRUPTCY PROCEEDING, ALLOWANCE OF A CLAIM BASED UPON
A MONEY JUDGMENT ACQUIRED AGAINST THE BANKRUPT BEFORE THE BANKRUPTCY IS
OBJECTED TO ON THE GROUND THAT THE JUDGMENT WAS PROCURED BY FRAUD, BUT
THE ISSUE OF FRAUD HAS BEEN LITIGATED AND DECIDED BETWEEN THE CLAIMANT
AND THE BANKRUPT BEFORE THE BANKRUPTCY AND HAS SINCE BEEN LITIGATED AND
DECIDED BETWEEN THE CLAIMANT AND THE TRUSTEE IN BANKRUPTCY, THAT ISSUE
IS RES JUDICATA AND MAY NOT BE LITIGATED FURTHER IN THE BANKRUPTCY
PROCEEDING, EVEN THOUGH, IN THE PREVIOUS LITIGATION, THE ALLEGATIONS OF
FRAUD WERE NOT SUPPORTED BY TENDER OF EVIDENCE OR OTHER PROOF.  PEPPER
V. LITTON, 308 U.S. 295, DIFFERENTIATED.  PP. 731, 736. 

2.  WHILE A BANKRUPTCY COURT IS ALSO A COURT OF EQUITY AND MAY
EXERCISE EQUITY POWERS IN BANKRUPTCY PROCEEDINGS TO SET ASIDE
FRAUDULENT CLAIMS - INCLUDING A FRAUDULENT JUDGMENT WHERE THE ISSUE OF
FRAUD HAS NOT BEEN ADJUDICATED PREVIOUSLY - AND MAY SUBORDINATE THE
CLAIM OF ONE CREDITOR TO THOSE OF OTHERS IN ORDER TO PREVENT THE
CONSUMMATION OF A FRAUDULENT OR OTHERWISE INEQUITABLE COURSE OF
CONDUCT, NO PRINCIPLE OF LAW OR EQUITY SANCTIONS THE REJECTION BY A
FEDERAL COURT OF THE SALUTARY PRINCIPLE OF RES JUDICATA.  P. 732. 

3.  SINCE THE BANKRUPTCY ACT AUTHORIZES A PROOF OF CLAIM BASED ON A
JUDGMENT, SUCH A PROOF MAY BE ASSAILED IN THE BANKRUPTCY COURT ON THE
GROUND THAT THE PURPORTED JUDGMENT IS NOT A JUDGMENT BECAUSE OF WANT OF
JURISDICTION OF THE COURT WHICH RENDERED IT OVER THE PERSONS OF THE
PARTIES OR THE SUBJECT MATTER OF THE SUIT, OR BECAUSE IT WAS PROCURED
BY FRAUD OF A PARTY.  P. 736. 

4.  IN PASSING UPON A PROOF OF CLAIM BASED ON A JUDGMENT, HOWEVER, A
BANKRUPTCY COURT MAY NOT REEXAMINE THE ISSUES DETERMINED BY THE
JUDGMENT ITSELF.  P. 736. 

5.  IT IS WELL SETTLED THAT, WHERE A TRUSTEE IN BANKRUPTCY
UNSUCCESSFULLY LITIGATES AN ISSUE OUTSIDE THE BANKRUPTCY COURT, THE
DECISION AGAINST HIM IS BINDING IN THE BANKRUPTCY COURT.  P. 733. 

6.  IN GENERAL, A JUDGMENT IS RES JUDICATA, NOT ONLY AS TO ALL
MATTERS LITIGATED AND DECIDED BY IT BUT ALSO AS TO ALL RELEVANT ISSUES
WHICH COULD HAVE BEEN, BUT WERE NOT, RAISED AND LITIGATED IN THE SUIT. 
P. 735. 

7.  NOTHING DECIDED IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, REQUIRES
A BANKRUPTCY COURT, IN APPLYING THE STATUTES OF THE UNITED STATES
GOVERNING THE LIQUIDATION OF BANKRUPTS' ESTATES, TO ADOPT LOCAL RULES
OF LAW IN DETERMINING WHAT CLAIMS ARE PROVABLE, OR TO BE ALLOWED, OR
HOW THE BANKRUPT'S ESTATE IS TO BE DISTRIBUTED AMONG CLAIMANTS.  P.
732. 

8.  IN PASSING UPON A PROOF OF CLAIM BASED ON A JUDGMENT, A
BANKRUPTCY COURT PROCEEDS - NOT WITHOUT APPROPRIATE REGARD FOR RIGHTS
ACQUIRED UNDER STATE LAW - UNDER FEDERAL STATUTES WHICH GOVERN THE
PROOF AND ALLOWANCE OF CLAIMS BASED ON JUDGMENTS.  P. 732. 

9.  IN DETERMINING WHAT JUDGMENTS ARE PROVABLE AND WHAT OBJECTIONS
MAY BE MADE TO THEIR PROOF, AND IN DETERMINING THE EXTENT TO WHICH THE
INEQUITABLE CONDUCT OF A CLAIMANT IN ACQUIRING OR ASSERTING HIS CLAIM
IN BANKRUPTCY REQUIRES ITS REJECTION OR ITS SUBORDINATION TO OTHER
CLAIMS WHICH IN OTHER RESPECTS ARE OF THE SAME CLASS, THE BANKRUPTCY
COURT IS DEFINING AND APPLYING FEDERAL, NOT STATE, LAW.  P. 732. 

HEISER V. WOODRUFF ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

PETITIONER FILED A CLAIM IN BANKRUPTCY BASED UPON A MONEY JUDGMENT
ACQUIRED AGAINST THE BANKRUPT BEFORE BANKRUPTCY.  RESPONDENTS OBJECTED
ON THE GROUND THAT THE JUDGMENT WAS PROCURED BY FRAUD.  THE REFEREE
DISALLOWED THE CLAIM.  THE DISTRICT COURT ALLOWED THE CLAIM, SUSTAINING
PETITIONER'S CONTENTION THAT THE ISSUE OF FRAUD HAD BEEN LITIGATED
PREVIOUSLY AND DECIDED IN PETITIONER'S FAVOR IN PROCEEDINGS IN WHICH
PETITIONER AND THE BANKRUPT OR HIS TRUSTEE, OR BOTH, HAD BEEN PARTIES,
AND WAS THEREFORE RES JUDICATA.  THE CIRCUIT COURT OF APPEALS
REVERSED.  150 F.2D 869.  THIS COURT GRANTED CERTIORARI.  326 U.S.
715.  REVERSED, P. 740. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE STONE, ANNOUNCED BY MR.
JUSTICE BLACK. 

THIS IS A PROCEEDING IN BANKRUPTCY ON OBJECTIONS TO THE ALLOWANCE OF
PETITIONER'S CLAIM IN BANKRUPTCY BASED UPON A MONEY JUDGMENT ACQUIRED
AGAINST THE BANKRUPT BEFORE THE BANKRUPTCY.  RESPONDENTS OBJECTED TO
ALLOWANCE OF THE CLAIM ON THE GROUND THAT, SO FAR AS HERE RELEVANT, THE
JUDGMENT WAS PROCURED BY FRAUD, THAT IS, BY PERJURED ALLEGATIONS IN THE
COMPLAINT IN THE SUIT IN WHICH THE JUDGMENT WAS RENDERED, AND BY
PERJURED TESTIMONY AS TO THE VALUE OF PROPERTY ALLEGED TO HAVE BEEN
CONVERTED BY THE DEFENDANT. 

THE REFEREE IN BANKRUPTCY DISALLOWED THE CLAIM.  ON THE REFEREE'S
CERTIFICATE THE DISTRICT COURT, SITTING IN BANKRUPTCY, ALLOWED THE
CLAIM, SUSTAINING PETITIONER'S CONTENTION THAT THE ISSUE OF FRAUD IN
PROCUREMENT OF THE JUDGMENT HAD BEEN PREVIOUSLY LITIGATED AND DECIDED
IN PETITIONER'S FAVOR IN PROCEEDINGS IN WHICH THE PETITIONER AND THE
BANKRUPT OR HIS TRUSTEE, OR BOTH, HAD BEEN PARTIES, AND WAS THEREFORE
RES JUDICATA. 

THE COURT OF APPEALS FOR THE TENTH CIRCUIT REVERSED.  150 F.2D 869. 
RELYING UPON OUR DECISIONS IN PEPPER V. LITTON, 308 U.S. 295, AND
PRUDENCE REALIZATION CORP. V. GEIST, 316 U.S. 89, IT HELD THAT THE
COURT OF BANKRUPTCY COULD GO BEHIND THE PRIOR ADJUDICATIONS OF THE
VALIDITY OF THE JUDGMENT AND DECIDE FOR ITSELF THE QUESTIONS PREVIOUSLY
LITIGATED AND DECIDED, WHETHER THE CAUSE OF ACTION ON WHICH THE
JUDGMENT WAS ENTERED WAS MERITORIOUS, AND WHETHER THE CLAIM IN
BANKRUPTCY SHOULD BE REJECTED BECAUSE BASED ON A JUDGMENT PROCURED BY
CLAIMANT'S FRAUD.  THE COURT OF APPEALS ACCORDINGLY REMANDED THE CAUSE
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS ON THE OBJECTIONS TO
ALLOWANCE OF THE CLAIM.  WE GRANTED CERTIORARI, 326 U.S. 715, UPON A
PETITION WHICH RAISES THE QUESTIONS WHETHER THE BANKRUPTCY COURT MAY RE
ADJUDICATE THE MERITS OF A CAUSE OF ACTION ON WHICH A JUDGMENT AGAINST
THE BANKRUPT, PROVED AS A CLAIM IN BANKRUPTCY, WAS ENTERED AND MAY
DISREGARD A PREVIOUS ADJUDICATION BETWEEN THE PARTIES THAT THE JUDGMENT
WAS NOT PROCURED BY FRAUD. 

WOODRUFF, THE BANKRUPT, WAS ADJUDICATED AS SUCH ON HIS VOLUNTARY
PETITION ON JULY 5, 1939.  PETITIONER, PROCEEDING UNDER SEC. 63(A)(1)
OF THE BANKRUPTCY ACT, 11 U.S.C. 103(A), WHICH PROVIDES THAT A FIXED
LIABILITY, EVIDENCED BY A JUDGMENT, IS A PROVABLE CLAIM IN BANKRUPTCY,
FILED HIS PROOF OF CLAIM IN THE BANKRUPTCY COURT UPON A DEFAULT
JUDGMENT AGAINST WOODRUFF FOR THE SUM, INCLUDING ACCRUED INTEREST AND
COSTS, OF MORE THAN $278,000.  THE SUIT IN WHICH THE JUDGMENT WAS
PROCURED WAS FILED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA IN JULY, 1935.  JUDGMENT WAS ENTERED FOR
PETITIONER ON MARCH 20, 1939, ON PROOF TAKEN OF SERVICE OF SUMMONS ON
JANUARY 31, 1939, AND OF WOODRUFF'S DEFAULT AND ON EVIDENCE GIVEN BY
THE PETITIONER. 

THE SUIT WAS BASED ON DIVERSITY OF CITIZENSHIP, AND THE CAUSE OF
ACTION ALLEGED WAS IN SUBSTANCE THAT WOODRUFF HAD PROCURED PROPERTY OF
PETITIONER, CONSISTING OF ROUGH SAPPHIRES, OPALS AND ZIRCONS, OF A
STATED VALUE OF $164,000, BY FALSE PRETENSES AND FALSE REPRESENTATIONS,
THE DETAILS OF WHICH ARE NOT NOW MATERIAL, AND HAD THEREAFTER CONVERTED
THEM TO HIS OWN USE. 

ON MARCH 29, 1939, SHORTLY AFTER THE JUDGMENT WAS RENDERED, WOODRUFF
FILED A MOTION IN THE TRIAL COURT TO SET IT ASIDE.  THE MOTION, SO FAR
AS IT WAS BASED UPON THE ALLEGED FAILURE TO SERVE THE DEFENDANT
WOODRUFF WITH PROCESS, WAS DENIED ON JUNE 8, 1939.  BUT THE COURT, ON
STIPULATION OF THE PARTIES, DIRECTED THAT A HEARING BE HELD TO
DETERMINE THE VALUE OF THE CONVERTED GEMS AND PROVIDED THAT AT THE
HEARING "SUCH COMPETENT EVIDENCE AS EITHER PARTY DESIRE TO PRESENT BE
RECEIVED" AND CONSIDERED BY THE COURT "IN DETERMINING THE ACTUAL VALUE
OF THE PROPERTY" WHICH THE PLAINTIFF ALLEGED WAS CONVERTED BY
DEFENDANTS.  THE COURT'S ORDER FURTHER PROVIDED THAT THE JUDGMENT
SHOULD BE REDUCED IN THE AMOUNT BY WHICH THE ADJUDGED VALUE OF THE GEMS
EXCEEDED THE ACTUAL VALUE AS FOUND AT THE HEARING.  AFTER A CONTESTED
HEARING AT WHICH EVIDENCE, ORAL AND DOCUMENTARY, WAS RECEIVED, THE
TRIAL COURT MADE A MINUTE ORDER STATING THAT THE COURT FOUND THAT THE
VALUES OF THE CONVERTED PROPERTY WERE THOSE ALLEGED IN THE COMPLAINT,
AND DECLINED TO GIVE FURTHER CONSIDERATION TO THE MOTION TO SET ASIDE
THE JUDGMENT.  NO APPEAL WAS TAKEN FROM THE JUDGMENT, AND NO REVIEW WAS
HAD OF THE MINUTE ORDER OR OF THE DENIAL OF THE MOTION TO SET THE
JUDGMENT ASIDE. 

ON AUGUST 23, 1939, ON APPLICATION OF JACKSON, THE TRUSTEE OF THE
BANKRUPT'S ESTATE, WHICH CERTAIN CREDITORS SUPPORTED, THE REFEREE IN
BANKRUPTCY AUTHORIZED AND DIRECTED THE TRUSTEE "TO TAKE SUCH LEGAL
STEPS AS MAY BE PROPER AND NECESSARY UNDER THE LAW TO VACATE, SET ASIDE
AND TO AVOID" THE JUDGMENT, AND AUTHORIZED HIM TO RETAIN COUNSEL IN THE
SOUTHERN DISTRICT OF CALIFORNIA FOR THAT PURPOSE.  THIS WAS FOLLOWED BY
A MOTION ON BEHALF OF THE BANKRUPT'S TRUSTEE, AND THE BANKRUPT, IN THE
DISTRICT COURT FOR THAT DISTRICT, TO SET ASIDE THE JUDGMENT ON THE
GROUNDS, AMONG OTHERS, THAT NO PROPER SERVICE OF PROCESS HAD BEEN MADE
ON THE DEFENDANT, THAT THE COMPLAINT DID NOT STATE A CAUSE OF ACTION,
THAT "A FRAUD WAS PRACTICED UPON THE ABOVE ENTITLED COURT WITH RESPECT
TO THE ENTRY OF SAID JUDGMENT", AND THAT THE TRUSTEE AND THE BANKRUPT
"HAVE BEEN PREVENTED FROM PRESENTING SAID DEFENSE UPON ANY TRIAL OF THE
MERITS BY REASON OF FRAUD, ACCIDENT, SURPRISE AND EXCUSABLE NEGLECT AS
IS MORE PARTICULARLY SHOWN BY THE AFFIDAVITS" UPON WHICH THE MOTION WAS
MADE.  THE AFFIDAVIT OF THE TRUSTEE IN SUPPORT OF THE MOTION STATED
THAT THE JUDGMENT WAS "BASED UPON FICTITIOUS VALUES AND WAS OBTAINED BY
METHODS WHICH AMOUNT TO A CONSTRUCTIVE FRAUD UPON THE OTHER CREDITORS
AND YOUR AFFIANT, AS REPRESENTATIVE OF SAID CREDITORS".  COUNTER
AFFIDAVITS BY PETITIONER AND HIS ATTORNEY IN THE SUIT IN WHICH THE
JUDGMENT WAS RENDERED DENIED THE ALLEGATIONS OF FRAUD. 

THE DISTRICT COURT DENIED THE MOTION, AND THE COURT OF APPEALS FOR
THE NINTH CIRCUIT AFFIRMED.  111 F.2D 310.  IT OVERRULED ALL THE
ALLEGED GROUNDS FOR SETTING ASIDE THE JUDGMENT, HOLDING THAT THE
SERVICE OF PROCESS WAS VALID AND THAT IN ANY CASE THE DEFENDANT HAD
APPEARED IN THE SUIT BY ENTERING INTO THE STIPULATION FOR TRIAL OF THE
ISSUE OF VALUE OF THE PROPERTY ALLEGED TO HAVE BEEN CONVERTED AND
PARTICIPATING IN THE HEARING ON THAT ISSUE.  IT ALSO HELD THAT THE
CHARGE OF FRAUD WAS DENIED AND UNSUPPORTED BY PROOF, ADDING "THAT
GROUND OF APPELLANTS' MOTION APPEARS TO HAVE BEEN ABANDONED."  THERE
WAS NO REVIEW OF THIS DECISION. 

THE COURT BELOW, IN REJECTING PETITIONER'S PLEA OF RES JUDICATA, AND
IN DIRECTING INQUIRY INTO THE MERITS OF THE ORIGINAL CAUSE OF ACTION
AND INTO THE ALLEGATION OF FRAUD IN PROCUREMENT OF THE JUDGMENT, RESTED
ITS DECISION UPON THE GROUND THAT THE BANKRUPT'S TRUSTEE HAD FAILED TO
PLACE BEFORE THE CALIFORNIA DISTRICT COURT ANY CONTENTION OR PROOF THAT
PETITIONER'S TESTIMONY, PARTICULARLY AS TO THE VALUE OF THE CONVERTED
PROPERTY, WAS PERJURED, THAT THE BANKRUPT WAS NOT INDEBTED TO
PETITIONER, OR THAT THE ALLEGATIONS OF THE COMPLAINT WERE UNTRUE.  THE
COURT, RELYING ON PEPPER V. LITTON, SUPRA, ALSO HELD THAT THE
BANKRUPTCY COURT, BEING A COURT HAVING EQUITY POWERS, WAS NOT BOUND BY
THE PRINCIPLES OF RES JUDICATA AS TO ISSUES WHICH WERE NOT PRESSED
BEFORE THE CALIFORNIA DISTRICT COURT, AND THAT THE AUTHORITY OF THE
BANKRUPTCY COURT AS A COURT OF EQUITY INCLUDED THE POWER TO INQUIRE
INTO THE VALIDITY OF THE CLAIM UPON WHICH THE JUDGMENT, PRESENTED AS A
CLAIM AGAINST THE ESTATE, WAS BASED. 

WE NEED NOT CONSIDER WHETHER, APART FROM THE REQUIREMENTS OF THE FULL
FAITH AND CREDIT CLAUSE OF THE CONSTITUTION, THE RULE OF RES JUDICATA
APPLIED IN THE FEDERAL COURTS, IN DIVERSITY OF CITIZENSHIP CASES, UNDER
THE DOCTRINE OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64; CF. GUARANTY
TRUST CO. V. YORK, 326 U.S. 99; HOLMBERG V. ARMBRECHT, 327 U.S. 392,
CAN BE OTHER THAN THAT OF THE STATE IN WHICH THE FEDERAL COURT SITS. 
FOR NOTHING DECIDED IN ERIE R. CO. V. TOMPKINS, SUPRA, REQUIRES A COURT
OF BANKRUPTCY, IN APPLYING THE STATUTES OF THE UNITED STATES GOVERNING
THE LIQUIDATION OF BANKRUPTS' ESTATES, TO ADOPT LOCAL RULES OF LAW IN
DETERMINING WHAT CLAIMS ARE PROVABLE, OR TO BE ALLOWED, OR HOW THE
BANKRUPT'S ESTATE IS TO BE DISTRIBUTED AMONG CLAIMANTS.  CF. BOARD OF
COMM'RS V. UNITED STATES, 308 U.S. 343; DEITRICK V. GREANEY, 309 U.S.
190; D'OENCH, DUHME & CO. V. F.D.I.C., 315 U.S. 447; HELVERING V.
STUART, 317 U.S. 154, 161-2; SOLA ELECTRIC CO. V. JEFFERSON CO., 317
U.S. 173, 176; WRAGG V. FEDERAL LAND BANK, 317 U.S. 325, 328;
CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363.  IN PASSING UPON
AND REJECTING OR ALLOWING THE PROOF OF CLAIM IN THIS CASE THE COURT OF
BANKRUPTCY PROCEEDS - NOT WITHOUT APPROPRIATE REGARD FOR RIGHTS
ACQUIRED UNDER STATE LAW - UNDER FEDERAL STATUTES WHICH GOVERN THE
PROOF AND ALLOWANCE OF CLAIMS BASED ON JUDGMENTS.  IN DETERMINING WHAT
JUDGMENTS ARE PROVABLE AND WHAT OBJECTIONS MAY BE MADE TO THEIR PROOF,
AND IN DETERMINING THE EXTENT TO WHICH THE INEQUITABLE CONDUCT OF A
CLAIMANT IN ACQUIRING OR ASSERTING HIS CLAIM IN BANKRUPTCY, REQUIRES
ITS REJECTION OR ITS SUBORDINATION TO OTHER CLAIMS WHICH, IN OTHER
RESPECTS ARE OF THE SAME CLASS, THE BANKRUPTCY COURT IS DEFINING AND
APPLYING FEDERAL, NOT STATE, LAW.  SEE PRUDENCE REALIZATION CORP. V.
GEIST, SUPRA, 95, 96 AND CASES CITED; CF. UNITED STATES V. PELZER, 312
U.S. 399, 402-03. 

IT IS TRUE THAT A BANKRUPTCY COURT IS ALSO A COURT OF EQUITY, LOCAL
LOAN CO. V. HUNT, 292 U.S. 234, 240, AND MAY EXERCISE EQUITY POWERS IN
BANKRUPTCY PROCEEDINGS TO SET ASIDE FRAUDULENT CLAIMS, INCLUDING A
FRAUDULENT JUDGMENT WHERE THE ISSUE OF FRAUD HAS NOT BEEN PREVIOUSLY
ADJUDICATED.  PEPPER V. LITTON, SUPRA, 306.  IN APPROPRIATE CASES,
ACTING UPON EQUITABLE PRINCIPLES, IT MAY ALSO SUBORDINATE THE CLAIM OF
ONE CREDITOR TO THOSE OF OTHERS IN ORDER TO PREVENT THE CONSUMMATION OF
A COURSE OF CONDUCT BY THE CLAIMANT WHICH, AS TO THEM, WOULD BE
FRAUDULENT OR OTHERWISE INEQUITABLE.  TAYLOR V. STANDARD GAS CO., 306
U.S. 307; PEPPER V. LITTON, SUPRA; PRUDENCE REALIZATION CORP. V. GEIST,
SUPRA; AMERICAN SURETY CO. V. SAMPSELL, 327 U.S. 269.  BUT WE ARE AWARE
OF NO PRINCIPLE OF LAW OR EQUITY WHICH SANCTIONS THE REJECTION BY A
FEDERAL COURT OF THE SALUTARY PRINCIPLE OF RES JUDICATA, WHICH IS
FOUNDED UPON THE GENERALLY RECOGNIZED PUBLIC POLICY THAT THERE MUST BE
SOME END TO LITIGATION AND THAT WHEN ONE APPEARS IN COURT TO PRESENT
HIS CASE, IS FULLY HEARD, AND THE CONTESTED ISSUE IS DECIDED AGAINST
HIM, HE MAY NOT LATER RENEW THE LITIGATION IN ANOTHER COURT.  BALDWIN
V. TRAVELING MEN'S ASSN., 283 U.S. 522, 525-6. 

BEFORE ERIE R. CO. V. TOMPKINS IT WAS RECOGNIZED BY THIS COURT THAT,
APART FROM THE FULL FAITH AND CREDIT CLAUSE, A JUDGMENT DULY RENDERED
IN ONE COURT WILL BE RECOGNIZED AS RES JUDICATA IN A SUIT BETWEEN THE
SAME PARTIES IN A FEDERAL COURT.  CROMWELL V. COUNTY OF SAC, 94 U.S.
351; CASE V. BEAUREGARD, 101 U.S. 688; BALTIMORE S.S. CO. V. PHILLIPS,
274 U.S. 316; GRUBB V. PUBLIC UTILITIES COMM'N, 281 U.S. 470.  SEE
BALDWIN V. TRAVELING MEN'S ASSN., SUPRA, AND CASES CITED; CF. CHICAGO,
R.I. & P.R. CO. V. SCHENDEL, 270 U.S. 611; MILWAUKEE COUNTY V. WHITE
CO., 296 U.S. 268, 272-3.  IT HAS BEEN HELD IN NON-DIVERSITY CASES,
SINCE ERIE R. CO. V. TOMPKINS, THAT THE FEDERAL COURTS WILL APPLY THEIR
OWN RULE OF RES JUDICATA.  SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381,
403; JACKSON V. IRVING TRUST CO., 311 U.S. 494, 503.  THIS COURT HAS
ALSO REQUIRED THAT EFFECT BE GIVEN IN BOTH STATE AND FEDERAL COURTS TO
A PLEA OF RES JUDICATA ARISING FROM DECREES OF A BANKRUPTCY COURT. 
STOLL V. GOTTLIEB, 305 U.S. 165; CHICOT COUNTY DIST. V. BANK, 308 U.S.
371.  AND IT IS WELL SETTLED THAT WHERE THE TRUSTEE IN BANKRUPTCY
UNSUCCESSFULLY LITIGATES AN ISSUE OUTSIDE THE BANKRUPTCY COURT THE
DECISION AGAINST HIM IS BINDING IN THE BANKRUPTCY COURT.  DAVIS V.
FRIEDLANDER, 104 U.S. 570; FISCHER V. PAULINE OIL CO., 309 U.S. 294,
302-03.  AT LEAST TO THE EXTENT THAT THE ISSUE OF FRAUD RAISED BY THE
OBJECTIONS TO PETITIONER'S CLAIM AS BETWEEN PETITIONER AND THE BANKRUPT
HAS BEEN LITIGATED AND DECIDED BEFORE THE BANKRUPTCY AND HAS SINCE BEEN
LITIGATED BETWEEN THE PETITIONER AND THE TRUSTEE IN BANKRUPTCY, WHO
REPRESENTS THE BANKRUPT AND HIS CREDITORS, THAT ISSUE IS NOW RES
JUDICATA AND MAY NOT FURTHER BE LITIGATED IN THE BANKRUPTCY
PROCEEDING.  HENCE WE TURN TO THE QUESTION, WHAT ISSUES ESSENTIAL TO
THE ALLEGATIONS THAT THE JUDGMENT WAS PROCURED BY FRAUD HAVE BEEN SO
LITIGATED.    EXAMINATION OF THE RECORD IN THIS PROCEEDING, INCLUDING
THE OBJECTIONS FILED TO PETITIONER'S CLAIM, THE APPLICATIONS OF THE
BANKRUPT, THE TRUSTEE, AND THE CREDITORS, FOR AUTHORITY TO ATTACK THE
JUDGMENT IN THE DISTRICT COURT OF SOUTHERN CALIFORNIA, AND THE
PROCEEDINGS INSTITUTED IN THAT COURT FOR THAT PURPOSE, MAKE PLAIN THE
NATURE OF THE FRAUD CHARGED AGAINST PETITIONER.  SHORTLY STATED IT IS
THAT IN THE COURSE OF TRANSACTIONS WITH PETITIONER THE BANKRUPT
ACQUIRED POSSESSION OF AND CONVERTED TO HIS OWN USE A QUANTITY OF
WORTHLESS MINERALS, OWNED OR PREVIOUSLY OWNED OR POSSESSED BY
PETITIONER, WHO, BY MEANS OF PERJURED ALLEGATIONS IN THE COMPLAINT AND
PERJURED TESTIMONY AS TO THEIR AMOUNT AND VALUE, PROCURED A DEFAULT
JUDGMENT AGAINST THE BANKRUPT FOR AN AMOUNT IN EXCESS OF THEIR VALUE. 

IT IS EVIDENT THAT AN ESSENTIAL ELEMENT OF THE CLAIM OF FRAUD IS THAT
THE ALLEGED CONVERTED MINERALS WERE WORTH SUBSTANTIALLY LESS THAN THE
$164,000 ALLEGED TO BE THEIR VALUE IN THE COMPLAINT, FOR WHICH THE
JUDGMENT WAS RENDERED.  BUT BEFORE THE BANKRUPTCY THIS ISSUE OF VALUE
HAD BEEN LITIGATED BETWEEN PETITIONER AND THE BANKRUPT IN THE DISTRICT
COURT FOR SOUTHERN CALIFORNIA.  IN THE COURSE OF THE PROCEEDINGS HAD ON
THE BANKRUPT'S MOTION TO SET ASIDE THE JUDGMENT, THE DISTRICT COURT
DECIDED THE ISSUE AGAINST THE BANKRUPT AND DECLINED TO DISTURB THE
JUDGMENT.  NO APPEAL WAS TAKEN FROM THE JUDGMENT AND CONSEQUENTLY THERE
WAS NO REVIEW OF THE DENIAL OF THE BANKRUPT'S MOTION TO SET ASIDE OR
MODIFY THE JUDGMENT, OR OF THE COURT'S MINUTE ORDER FINDING THAT THE
CONVERTED GEMS WERE OF THE VALUE ALLEGED IN THE COMPLAINT. 

THE SAME ISSUE AS TO VALUE AND ALSO THE ISSUE WHETHER THERE WAS
PERJURED TESTIMONY OF VALUE WERE RAISED IN THE PROCEEDING LATER BROUGHT
IN THE DISTRICT COURT FOR SOUTHERN CALIFORNIA BY THE TRUSTEE IN BEHALF
OF THE BANKRUPT TO SET ASIDE THE JUDGMENT.  IN HIS APPLICATION TO THE
BANKRUPTCY COURT TO DIRECT THE TRUSTEE TO BRING THE PROCEEDING, THE
BANKRUPT HAD REPRESENTED THAT "THE MATERIAL ALLEGATIONS OF THE
COMPLAINT FILED IN SAID CASE (IN THE DISTRICT COURT FOR SOUTHERN
CALIFORNIA) ARE UNTRUE"; THAT "THE RAW GEMS DESCRIBED IN PLAINTIFF'S
COMPLAINT WERE AT NO TIME OF THE VALUE OF $164,000.00 OR ANY COMPARABLE
VALUE".  AS ALREADY NOTED THE PAPERS ON THE MOTION IN BEHALF OF THE
TRUSTEE AND THE BANKRUPT TO VACATE THE JUDGMENT, SET UP THAT THE
JUDGMENT WAS BASED ON "FICTITIOUS VALUES" AND WAS FRAUDULENTLY
PROCURED.  IN THAT PROCEEDING THE CHARGE OF FRAUD THUS ALLEGED WAS PUT
IN ISSUE BY THE ANSWERING AFFIDAVITS.  THE DENIAL OF THE MOTION BY THE
DISTRICT COURT WAS AFFIRMED BY THE COURT OF APPEALS FOR THE NINTH
CIRCUIT ON THE GROUND THAT THE APPLICANTS HAD NOT SUSTAINED THEIR
ALLEGATIONS OF FICTITIOUS VALUE AND FRAUD BY ANY TENDER OF EVIDENCE OR
OTHER PROOF.  THIS WAS A FINAL JUDGMENT ON THE ISSUES THUS RAISED,
BINDING ON THE PARTIES TO THE PROCEEDING.  IT IS NOT ANY THE LESS SO,
AS THE COURT OF APPEALS THOUGHT, BECAUSE THE MOVING PARTIES FAILED TO
SUPPORT THEIR ALLEGATIONS BY EVIDENCE. 

IN GENERAL A JUDGMENT IS RES JUDICATA NOT ONLY AS TO ALL MATTERS
LITIGATED AND DECIDED BY IT, BUT AS TO ALL RELEVANT ISSUES WHICH COULD
HAVE BEEN BUT WERE NOT RAISED AND LITIGATED IN THE SUIT.  CROMWELL V.
COUNTY OF SAC, SUPRA, 352; GRUBB V. PUBLIC UTILITIES COMM'N, SUPRA,
479; CHICOT COUNTY DIST. V. BANK, SUPRA, 375.  BUT HERE THE ALLEGED
FRAUD WAS PUT IN ISSUE AND THE ISSUE WAS DECIDED AGAINST THE TRUSTEE,
THE BANKRUPT AND THOSE WHOM THEY REPRESENT OR WHO CLAIM UNDER THEM, FOR
FAILURE OF PROOF.  AFTER TWO PROCEEDINGS, IN ONE OF WHICH THE BANKRUPT
AND IN THE OTHER OF WHICH THE BANKRUPT AND HIS TRUSTEE, SOUGHT, AND
WERE FREE, TO PROVE THAT THE JUDGMENT WAS BASED ON FRAUDULENTLY
ALLEGED, FICTITIOUS VALUES, AND IN BOTH OF WHICH THE DECISION WAS
AGAINST THEM, THE PRINCIPLES OF RES JUDICATA PRECLUDE THE REVIVAL OF
THE LITIGATION IN THE BANKRUPTCY COURT. 

PEPPER V. LITTON, SUPRA, LENDS NO SUPPORT TO A DIFFERENT VIEW. 
UNDOUBTEDLY, SINCE THE BANKRUPTCY ACT AUTHORIZES A PROOF OF CLAIM BASED
ON A JUDGMENT, SUCH A PROOF MAY BE ASSAILED IN THE BANKRUPTCY COURT ON
THE GROUND THAT THE PURPORTED JUDGMENT IS NOT A JUDGMENT BECAUSE OF
WANT OF JURISDICTION OF THE COURT WHICH RENDERED IT OVER THE PERSONS OF
THE PARTIES OR THE SUBJECT MATTER OF THE SUIT, OR BECAUSE IT WAS
PROCURED BY FRAUD OF A PARTY.  PEPPER V. LITTON, SUPRA, 306; CHANDLER
V. THOMPSON, 120 F. 940; IN RE CONTINENTAL ENGINE CO., 234 F. 58; IN RE
STUCKY TRUCKING & RIGGING CO., 243 F. 287; IN RE RUBIN, 24 F.2D 289. 
BUT IT IS QUITE ANOTHER MATTER TO SAY THAT THE BANKRUPTCY COURT MAY
REEXAMINE THE ISSUES DETERMINED BY THE JUDGMENT ITSELF.  IT HAS, FROM
AN EARLY DATE, BEEN HELD TO THE CONTRARY.  MCKINSEY V. HARDING, FED.
CAS. NO. 8,866; EX PARTE O'NEIL, FED. CAS. NO. 10,527; IN RE ULFELDER
CO., 98 F. 409; PETERS V. UNITED STATES, 177 F. 885; HANDLAN V. WALKER,
200 F. 566; IN RE GANET REALTY CORP., 83 F.2D 945; LYDERS V. PETERSEN,
88 F.2D 9.  NOR CAN AN ATTACK BE SUSTAINED ON A JUDGMENT ALLEGEDLY
PROCURED BY FRAUDULENT REPRESENTATIONS OF THE PLAINTIFF, WHEN THE
CHARGE OF FRAUD HAS BEEN REJECTED IN PREVIOUS LITIGATIONS BY THE
PARTIES TO THE SUIT IN WHICH THE JUDGMENT WAS RENDERED, OR THEIR
REPRESENTATIVES.  PEPPER V. LITTON, SUPRA, 306, N. 13; CF. MAYS V.
FRITTON, 20 WALL.  414; JEROME V. MCCARTER, 94 U.S. 734, 737; MCHENRY
V. LA SOCIETE FRANCAISE, 95 U.S. 58; DAVIS V. FRIEDLANDER, SUPRA;
WINCHESTER V. HEISKELL, 119 U.S. 450, 453; GRANT V. BUCKNER, 172 U.S.
232, 238. 

NEITHER PEPPER V. LITTON, SUPRA, ON WHICH RESPONDENTS CHIEFLY RELY,
NOR THE OTHER CASES WHICH THEY CITE, SUSTAIN THE CONTENTION THAT THE
BANKRUPTCY COURT, IN PASSING ON THE VALIDITY OF CREDITORS' CLAIMS, MAY
DISREGARD THE PRINCIPLE OF RES JUDICATA.  IN THAT CASE THE JUDGMENT
CREDITOR SOUGHT BY PROOF OF CLAIM ON HIS JUDGMENT TO SHARE IN THE
ASSETS OF THE BANKRUPT ESTATE, WHICH WERE INSUFFICIENT TO SATISFY THE
RIVAL CLAIM OF ANOTHER JUDGMENT CREDITOR.  WE ASSUMED, FOR PURPOSES OF
DECISION, THAT THE CLAIM ON WHICH THE DISPUTED JUDGMENT WAS BASED WAS
FOUNDED ON A VALID DEBT.  BUT THE COURT HELD THAT AS THE JUDGMENT
CREDITOR WAS ALSO A CONTROLLING STOCKHOLDER OF THE BANKRUPT CORPORATION
HE WAS A FIDUCIARY FOR THE OTHER CREDITORS OF THE CORPORATION AND, AS
SUCH, COULD NOT PROVE HIS CLAIM IN COMPETITION WITH OTHER CREDITORS OR
GAIN FROM THE ESTATE ANY PERSONAL ADVANTAGE, SECURITY, OR PRIORITY OVER
THEM.  AFTER REFERRING TO CERTAIN CASES IN WHICH CREDITORS' CLAIMS HAD
BEEN DISALLOWED AND SAYING:  "THESE CASES DO NOT TURN ON THE EXISTENCE
OR NON-EXISTENCE OF THE DEBT.  RATHER THEY INVOLVE SIMPLY THE QUESTION
OF ORDER OF PAYMENT," 308 U.S. 310, THE COURT CONCLUDED:  "WHERE THERE
IS A VIOLATION OF THOSE PRINCIPLES, EQUITY WILL UNDO THE WRONG OR
INTERVENE TO PREVENT ITS CONSUMMATION.  ON SUCH A TEST THE ACTION OF
THE DISTRICT COURT IN DISALLOWING OR SUBORDINATING LITTON'S CLAIM WAS
CLEARLY CORRECT."  308 U.S. 311.  CF. TAYLOR V. STANDARD GAS CO.,
SUPRA. 

ALTHOUGH THE TRUSTEE IN BANKRUPTCY IN PEPPER V. LITTON HAD
UNSUCCESSFULLY ATTACKED THE JUDGMENT IN ANOTHER PROCEEDING IN THE STATE
COURTS, THIS COURT POINTED OUT THAT IN THAT PROCEEDING NO QUESTION WAS
PRESENTED "WHETHER OR NOT THE  ...  JUDGMENT MIGHT BE SUBORDINATED TO
THE CLAIMS OF OTHER CREDITORS UPON EQUITABLE PRINCIPLES," 308 U.S. 302
03, AND THAT "THE ONLY DECREE WHICH WAS ASKED OR COULD BE GIVEN IN THE
PLAINTIFF'S FAVOR" UNDER THE PLEADINGS "WAS FOR CANCELLATION OF THE
JUDGMENT AS A RECORD OBLIGATION OF THE BANKRUPT."  308 U.S. 303.  IT
WAS THUS MADE PLAIN THAT THE THEORY RELIED UPON AS REQUIRING
DISALLOWANCE OR SUBORDINATION OF THE CONTESTED CLAIM RESTED UPON
GROUNDS NOT PREVIOUSLY ADJUDICATED, AND WE EXPLICITLY NOTED THAT THE
STATE COURT DID NOT ADJUDICATE IT. 308 U.S. 302-03* . 

*IN PEPPER V. LITTON, 308 U.S. 295, THE COURT FOUND THAT LITTON, A
"DOMINANT AND CONTROLLING" STOCKHOLDER OF THE BANKRUPT CORPORATION
ENTERED INTO A "PLANNED AND FRAUDULENT SCHEME" WHICH WAS "PLAINLY FOR
THE SOLE PURPOSE OF AVOIDING PAYMENT OF THE PEPPER DEBT," WHICH WAS
THEN OWED BY THE CORPORATION.  THE FRAUDULENT SCHEME, WHICH WAS
INITIATED SHORTLY BEFORE THE BANKRUPTCY, INVOLVED SEVERAL SUCCESSIVE
STEPS, AS FOLLOWS:  LITTON PROCURED A JUDGMENT IN HIS FAVOR AGAINST THE
CORPORATION, UPON AN ALLEGED FICTITIOUS CLAIM FOR SALARY, WHICH WAS
ENTERED ON CONFESSION IN ITS BEHALF BY ONE OF ITS OFFICERS, WHO WAS
ALSO AN EMPLOYEE OF LITTON AND SUBSERVIENT TO HIS WILL.  A SECOND
JUDGMENT HAVING BEEN ENTERED AGAINST THE CORPORATION UPON THE DEBT TO
PEPPER, AND, EXECUTION UPON THE PEPPER JUDGMENT HAVING BEEN STAYED
PENDING AN APPEAL BY THE CORPORATION, LITTON THEN BECAME THE PURCHASER
OF CERTAIN PROPERTY OF THE CORPORATION ON EXECUTION SALE UNDER HIS
JUDGMENT, AND TRANSFERRED THE PROPERTY TO A NEWLY ORGANIZED CORPORATION
IN EXCHANGE FOR ALL ITS STOCK.  HE THEN CAUSED THE JUDGMENT DEBTOR TO
BE ADJUDGED A BANKRUPT ON ITS VOLUNTARY PETITION AND FILED IN THE
BANKRUPTCY PROCEEDING PROOF OF CLAIM UPON THE CONFESSED JUDGMENT. 

IN THE MEANTIME PEPPER HAD BROUGHT SUIT IN THE VIRGINIA STATE COURTS
TO HAVE THE LITTON JUDGMENT SET ASIDE AS VOID.  FOLLOWING THE SALE OF
THE CORPORATION'S PROPERTY UNDER THE LITTON EXECUTION, THE SHERIFF
INSTITUTED AN INTERPLEADER SUIT JOINING LITTON AND PEPPER AS CLAIMANTS
TO THE PROCEEDS OF THE EXECUTION SALE IN THE SHERIFF'S HANDS.  LITTON
AND PEPPER BOTH ANSWERED, ASSERTING CLAIMS TO THE PROCEEDS SUBJECT TO
AN EXISTING PRIOR LIEN.  THEREAFTER THE TRUSTEE IN BANKRUPTCY, WITH THE
AUTHORITY OF THE BANKRUPTCY COURT, MOVED IN THE STATE COURT TO SET
ASIDE THE LITTON JUDGMENT AND TO QUASH THE EXECUTION ON THE GROUND THAT
THE JUDGMENT WAS VOID, SINCE THE CONFESSION DID NOT CONFORM TO THE
VIRGINIA STATUTES.  THAT COURT CONCLUDED THAT THE LITTON JUDGMENT WAS
VOID, BUT DENIED THE MOTION ON THE GROUND THAT THE TRUSTEE WAS ESTOPPED
TO CHALLENGE IT. 

IT HELD THAT PEPPER, IN ASSERTING A CLAIM TO THE PROCEEDS OF THE
SHERIFF'S SALE IN THE INTERPLEADER SUIT, HAD TREATED THEM AS VALIDLY
DERIVED FROM THE EXECUTION SALE ON THE LITTON JUDGMENT, AND THAT IN
CONSEQUENCE HE HAD ELECTED TO RECOGNIZE THE VALIDITY OF THE JUDGMENT. 
AS AT THAT TIME LITTON HAD ACQUIRED OR CAUSED TO BE WITHDRAWN FROM THE
BANKRUPTCY PROCEEDINGS ALL THE CLAIMS AGAINST THE ESTATE, OTHER THAN
THE PEPPER JUDGMENT, THE COURT HELD THAT THE TRUSTEE WAS REPRESENTING
ONLY PEPPER IN THE STATE COURT SUIT AND THAT THE TRUSTEE, AS WELL AS
PEPPER, WAS ESTOPPED TO MAINTAIN IT.  THE JUDGMENT WAS AFFIRMED ON
THESE GROUNDS BY THE VIRGINIA SUPREME COURT.  SMITH V. LITTON, 167 VA.
263, 188 S.E. 214.  ON OBJECTIONS TO THE CLAIM ON THE LITTON JUDGMENT
THE DISTRICT COURT, SITTING IN BANKRUPTCY, DISALLOWED THE CLAIM.  ON
APPEAL THE CIRCUIT COURT OF APPEALS REVERSED, HOLDING THAT THE DECISION
AND JUDGMENT OF THE STATE COURT IN SMITH V. LITTON, SUPRA, WERE RES
JUDICATA IN THE BANKRUPTCY PROCEEDING.  100 F.2D 830. 

THIS COURT, IN REVERSING THE JUDGMENT OF THE COURT OF APPEALS,
POINTED OUT THAT THE CHALLENGE TO THE VALIDITY OF THE LITTON JUDGMENT
IN THE STATE COURT WAS ON THE GROUND THAT THE JUDGMENT WAS IRREGULAR OR
VOID ON ITS FACE BECAUSE THE CONFESSION OF JUDGMENT DID NOT CONFORM TO
THE REQUIREMENTS OF STATE LAW.  WE ALSO POINTED OUT THAT UNDER THE
PLEADINGS AND PRACTICE IN THE SUIT ATTACKING THE JUDGMENT THE VALIDITY
OF THE ALLEGED DEBT FOR SALARY WAS NOT IN ISSUE AND NO QUESTION WAS IN
ISSUE OR PRESENTED WHETHER THE LITTON JUDGMENT MIGHT, ON EQUITABLE
PRINCIPLES, BE SUBORDINATED TO THE CLAIMS OF OTHER CREDITORS.  WE SAID,
PAGE 303:  "THE ONLY DECREE WHICH WAS ASKED OR COULD BE GIVEN IN THE
PLAINTIFF'S FAVOR" UNDER THE PLEADINGS "WAS FOR CANCELLATION OF THE
JUDGMENT AS A RECORD OBLIGATION OF THE BANKRUPT.  IT IS THEREFORE PLAIN
THAT THE ISSUE WHICH THE BANKRUPTCY COURT LATER CONSIDERED WAS NOT AN
ISSUE IN THE TRIAL OF THE CAUSE IN THE STATE COURT AND COULD NOT BE
ADJUDICATED THERE." 

THUS THE COURT RECOGNIZED THAT THE JUDGMENT OF THE STATE COURT IN
SMITH V. LITTON, SUPRA, WAS NOT RES JUDICATA AS TO MATTERS LATER RULED
UPON BY THE BANKRUPTCY COURT AND BY THIS COURT.  UPON THIS ASSUMPTION,
AND ASSUMING ALSO THE VALIDITY OF THE ALLEGED SALARY DEBT UNDERLYING
THE LITTON JUDGMENT, THIS COURT HELD, ON EQUITABLE PRINCIPLES, THAT
LITTON WAS NOT FREE TO ASSERT HIS JUDGMENT IN COMPETITION WITH OTHER
CREDITORS BECAUSE HE HAD ACQUIRED THE JUDGMENT IN BREACH OF THE
FIDUCIARY OBLIGATION WHICH A CONTROLLING STOCKHOLDER OF THE BANKRUPT
OWES TO THE OTHER CREDITORS, NOT TO SECURE FOR HIMSELF A PERSONAL
ADVANTAGE BY WAY OF SECURITY OR PRIORITY OVER THEM.  CF. TAYLOR V.
STANDARD GAS CO., 306 U.S. 307. 

THE DECISION IN PEPPER V. LITTON THUS AFFORDS NO SUPPORT FOR
PETITIONER'S CONTENTION THAT THE DOCTRINE OF RES JUDICATA IS
INAPPLICABLE IN A BANKRUPTCY PROCEEDING.  CASES ON WHICH RESPONDENTS
RELY, CITED IN PEPPER V. LITTON, AS ILLUSTRATING THE EXTENT TO WHICH A
COURT MAY LOOK BEHIND A JUDGMENT PROVED IN BANKRUPTCY TO ASCERTAIN THE
NATURE OF A CLAIM UPON WHICH THE JUDGMENT IS BASED, ARE CONCERNED
EXCLUSIVELY WITH THE QUESTION OF THE NATURE OF THE LIABILITY
REPRESENTED BY THE JUDGMENT, THAT IS, WHETHER IT REPRESENTS A "DEBT"
PROVABLE AND DISCHARGEABLE IN BANKRUPTCY UNDER SECS. 17 AND 63 OF THE
BANKRUPTCY ACT.  THUS A DECREE FOR ALIMONY WAS HELD TO BE NOT A "DEBT"
BUT IN THE NATURE OF A PENALTY FOR FAILURE TO PERFORM A DUTY, AND NOT
PROVABLE OR DISCHARGEABLE IN BANKRUPTCY.  WETMORE V. MARKOE, 196 U.S.
68.  THOSE CASES DO NOT SUPPORT THE RULING OF THE COURT OF APPEALS
BELOW THAT THE BANKRUPTCY COURT, IN DETERMINING THE VALIDITY OF A
PROVABLE CLAIM UPON A JUDGMENT, MAY REEXAMINE THE ISSUES WHICH WERE
LITIGATED BY THE BANKRUPT OR HIS TRUSTEE IN THE SUIT IN WHICH THE
JUDGMENT WAS RENDERED OR IN ANY OTHER.  SEE BOYNTON V. BALL, 121 U.S.
457.    HERE WHEN THE PETITIONER BROUGHT HIS SUIT FOR CONVERSION HE WAS
NOT A FIDUCIARY FOR THE DEFENDANT, WOODRUFF, OR HIS CREDITORS.  THERE
WAS NO EQUITABLE GROUND UPON WHICH HIS CLAIM OR THE JUDGMENT UPON IT
COULD BE SET ASIDE OR SUBORDINATED TO THOSE OF OTHER CREDITORS IN THE
BANKRUPTCY PROCEEDING, EXCEPT THAT ASSERTED BY RESPONDENTS THAT THE
JUDGMENT HAD BEEN PROCURED BY A FRAUD PERPETRATED ON THE JUDGMENT
DEBTOR.  THAT ISSUE, HAVING BEEN TWICE LITIGATED AND DECIDED IN THE
COURT IN WHICH THE JUDGMENT WAS RENDERED, IN PROCEEDINGS BROUGHT BY THE
TRUSTEE IN BANKRUPTCY AND THE BANKRUPT, AND BY THE BANKRUPT ALONE, MAY
NOT NOW BE RELITIGATED IN THE BANKRUPTCY COURT.  REVERSED.    MR.
JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENTING. 

WE WOULD AFFIRM THE JUDGMENT FOR THE REASONS STATED BY JUDGE BRATTON
WRITING FOR THE CIRCUIT COURT OF APPEALS.  150 F.2D 869. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE. 

I CONCUR IN THE RESULT.  IN MY JUDGMENT IT IS NECESSARY, IN THIS
CASE, TO DO NO MORE THAN TO RULE THAT EQUITABLE PRINCIPLES, APPLICABLE
IN BANKRUPTCY IN ACCORDANCE WITH PEPPER V. LITTON, 308 U.S. 295, AND
PRIOR DECISIONS, DO NOT REQUIRE REEXAMINATION BY THE BANKRUPTCY COURT,
IN THE CIRCUMSTANCES NOW PRESENTED, OF THE FOUNDATIONS OF THE JUDGMENT
WHICH IS THE BASIS OF THE CLAIM IN ISSUE.  IF, AS THE COURT DECLARED IN
PEPPER V. LITTON, THE BANKRUPTCY COURT HAS POWER TO REJECT CLAIMS, EVEN
WHEN PREVIOUSLY ALLOWED, "IN WHOLE OR IN PART 'ACCORDING TO THE
EQUITIES OF THE CASE,'" 308 U.S. AT 304,  FN1  SEE 11 U.S.C. SEC.
93(K), I FIND NO REASON FOR QUALIFYING THAT RULE IN THIS CASE.  IT
NECESSARILY COMPREHENDS THAT THE BANKRUPTCY COURT IN THE ALLOWANCE OR
REJECTION AND ORDERING OF CLAIMS SHALL NOT BE BOUND BY ANY BROAD OR
RIGID RULE OF RES JUDICATA.  THAT, I THINK, IS THE ESSENTIAL RULING OF
THE PEPPER CASE.  FN2 

ON THE OTHER HAND, PRIOR ADJUDICATION OF THE VERY GROUNDS ALLEGED FOR
DISALLOWING OR SUBORDINATING A JUDGMENT CLAIM, CANNOT BE IRRELEVANT TO
WHAT EQUITABLE PRINCIPLES MAY REQUIRE THE BANKRUPTCY COURT TO DO IN
DISPOSING OF THE CLAIM.  AND THE SAME MAY BE TRUE ALSO OF PRIOR FAILURE
TO SECURE SUCH AN ADJUDICATION WHEN ADEQUATE OPPORTUNITY IS AFFORDED BY
PROCEEDINGS INSTITUTED TO SET ASIDE OR MODIFY THE JUDGMENT.  CF.
HANDLAN V. WALKER, 200 F. 566.  SOUND POLICIES OF JUDICIAL
ADMINISTRATION, AFFECTING BOTH THE BANKRUPTCY COURT AND THE COURT
RENDERING THE JUDGMENT, MAY HAVE A SIMILAR BEARING. 

IN THIS CASE THE TWO SEPARATE PROCEEDINGS HAD IN THE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA AFFORDED PERHAPS MORE THAN
ADEQUATE OPPORTUNITY FOR ADJUDICATION OF THE ISSUES NOW RAISED IN THE
BANKRUPTCY COURT, ONCE TO THE BANKRUPT, ONCE TO HIS TRUSTEE.  THESE
PROCEEDINGS WERE ALLOWED TO BE TERMINATED ADVERSELY IN THE ONE CASE
WITHOUT APPEAL, IN THE OTHER AFTER ADVERSE DECISION ON APPEAL AND
WITHOUT APPLICATION FOR CERTIORARI.  JACKSON V. HEISER, 111 F.2D 310. 
I DO NOT THINK EQUITY REQUIRES A THIRD OPPORTUNITY TO BE AFFORDED BY
THE BANKRUPTCY COURT.  ON THIS GROUND I AGREE THAT THE JUDGMENT SHOULD
BE REVERSED. 

FN1  "ALLOWANCE AND DISALLOWANCE ARE JUDICIAL ACTS....  IN PASSING ON
AN ALLOWANCE OF CLAIMS THE COURT SITS AS A COURT OF EQUITY, WHICH GIVES
IT FAR-REACHING POWERS 'TO SIFT THE CIRCUMSTANCES SURROUNDING ANY CLAIM
TO SEE THAT INJUSTICE OR UNFAIRNESS IS NOT DONE IN ADMINISTRATION OF
THE BANKRUPT ESTATE.'  (PEPPER V. LITTON, 308 U.S. 295, 308.)  MERE
REASONS OF EQUITY MAY SOMETIMES REQUIRE THAT A CREDITOR'S CLAIM BE
EITHER TOTALLY DISALLOWED OR SUBORDINATED TO THE CLAIMS OF ALL OR OF
CERTAIN OTHER GENERAL CREDITORS  ...  EQUITIES TO BE WEIGHED IN
CONNECTION WITH THE ALLOWANCE OF A CLAIM MAY VARY IN IMPORTANCE.  THEY
MAY IN EXTREME CASES BE STRONG ENOUGH TO WARRANT DISALLOWANCE
ABSOLUTELY AND ENTIRELY.  IN OTHER CASES EQUITY MAY BE SATISFIED WITH A
MERE 'SUBORDINATION' OR POSTPONEMENT OF A CLAIM, AND ITS RELEGATION TO
A RANK INFERIOR TO THAT OF ALL GENERAL CREDITORS OR OF A PARTICULAR
GROUP."  3 COLLIER, BANKRUPTCY (14TH ED.)  185-186.  SEE ALSO 3 ID. AT
1800-1801. 

11 U.S.C. SEC. 93(A) PROVIDES:  "A PROOF OF CLAIM SHALL CONSIST OF A
STATEMENT UNDER OATH, IN WRITING AND SIGNED BY A CREDITOR, SETTING
FORTH THE CLAIM; THE CONSIDERATION THEREFOR; WHETHER ANY AND, IF SO,
WHAT SECURITIES ARE HELD THEREFOR; AND WHETHER ANY AND, IF SO, WHAT
PAYMENTS HAVE BEEN MADE THEREON; AND THAT THE CLAIM IS JUSTLY OWING
FROM THE BANKRUPT TO THE CREDITOR." 

FN2  THE CASE HAS BEEN SO READ.  CITING IT, 3 COLLIER, BANKRUPTCY
(14TH ED.)  1800, SAYS:  "THE DOCTRINE OF RES JUDICATA, AS APPLIED TO
THE BANKRUPTCY COURT IN DECIDING WHETHER A CLAIM SHOULD BE ALLOWED,
DISALLOWED OR SUBORDINATED, IS SUBJECT TO THE PARAMOUNT EQUITABLE
POWERS OF BANKRUPTCY COURTS TO PREVENT THE PERPETRATION OF FRAUD AND
COLLUSION." 
..END :



















UNITED STATES V. RICE, 327 U.S. 742 


NO. 411.  ARGUED FEBRUARY 5, 1946.  - DECIDED APRIL 22, 1946. 


1.  A CIRCUIT COURT OF APPEALS MAY NOT, BY MANDAMUS, REVIEW A JUDGMENT
OF A DISTRICT COURT ORDERING REMAND TO A STATE COURT OF A PROCEEDING
WHICH HAD BEEN REMOVED TO THE DISTRICT COURT UPON PETITION OF THE
UNITED STATES PURSUANT TO SEC. 3 OF THE ACT OF APRIL 12, 1926, RELATING
TO SUITS INVOLVING TITLE TO LANDS ALLOTTED TO MEMBERS OF THE FIVE
CIVILIZED TRIBES IN OKLAHOMA.  PP. 744, 753. 

(A)  THE UNITED STATES CAN NOT ASSERT, BY VIRTUE OF ITS SOVEREIGNTY,
A RIGHT OF APPEAL WHICH NO STATUTE CONFERS.  P. 749. 

(B)  SECTION 3 OF THE ACT OF APRIL 12, 1926, DOES NOT CONFER UPON THE
GOVERNMENT ANY RIGHT OF REVIEW OF AN ORDER REMANDING A CAUSE REMOVED
UNDER THAT ACT; AND SEC. 2 OF THE JUDICIARY ACT OF 1887 INTENDED TO
WITHHOLD IT IN ALL CASES OF REMOVAL FROM STATE COURTS.  PP. 749, 751. 

2.  STATUTORY LANGUAGE AND OBJECTIVE APPEARING WITH REASONABLE
CLARITY ARE NOT TO BE OVERCOME BY RESORT TO A MECHANICAL RULE OF
CONSTRUCTION, WHOSE FUNCTION IS NOT TO CREATE DOUBTS BUT TO RESOLVE
THEM WHEN THE REAL ISSUE OR STATUTORY PURPOSE IS OTHERWISE OBSCURE.  P.
753. 

UNITED STATES V. RICE, DISTRICT JUDGE. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

PROCEEDINGS WERE BEGUN IN A COUNTY COURT FOR ADMINISTRATION ON THE
ESTATE OF A RESTRICTED INDIAN MEMBER OF THE FIVE CIVILIZED TRIBES IN
OKLAHOMA.  THE COUNTY COURT APPOINTED ADMINISTRATORS.  THE UNITED
STATES PETITIONED FOR AN ORDER OF REMOVAL PURSUANT TO SEC. 3 OF THE ACT
OF APRIL 12, 1926, 44 STAT. 239.  THE COUNTY COURT MADE ITS ORDER OF
REMOVAL AND A TRANSCRIPT OF THE PROCEEDINGS WAS FILED IN THE DISTRICT
COURT.  THE UNITED STATES PETITIONED FOR INTERVENTION IN THE DISTRICT
COURT AND PRAYED FOR A DETERMINATION OF THE DECEDENT'S HEIRS AND OF THE
SPECIFIC PARTS OF HIS PROPERTY WHICH ARE RESTRICTED AND SUBJECT TO THE
SUPERVISION OF THE SECRETARY OF THE INTERIOR.  ON MOTION OF THE
ADMINISTRATORS APPOINTED BY THE COUNTY COURT, THE DISTRICT COURT
DISMISSED THE PETITION IN INTERVENTION WITHOUT PREJUDICE AND REMANDED
THE PROCEEDING TO THE COUNTY COURT FOR WANT OF JURISDICTION IN THE
DISTRICT COURT.  IN RE MICCO'S ESTATE, 59 F.SUPP.  434. 

THE UNITED STATES APPLIED TO THE CIRCUIT COURT OF APPEALS FOR LEAVE
TO FILE A PETITION FOR A WRIT OF MANDAMUS TO DIRECT THE DISTRICT COURT
TO VACATE ITS JUDGMENT DISMISSING THE PETITION FOR INTERVENTION AND
REMANDING THE PROCEEDING. 

BEING EQUALLY DIVIDED ON TWO QUESTIONS, (1) WHETHER THE JUDGMENT OF
REMAND IS REVIEWABLE BY MANDAMUS, AND (2) WHETHER THE PROCEEDING WAS
REMOVABLE UNDER THE ACT OF APRIL 12, 1926, THE CIRCUIT COURT OF APPEALS
CERTIFIED A SINGLE QUESTION FOR THE CONSIDERATION OF THIS COURT:  "MAY
THIS COURT, BY MANDAMUS, REVIEW THE JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA ORDERING THE REMAND
OF THE PROCEEDING TO THE COUNTY COURT OF OKFUSKEE COUNTY, OKLAHOMA?" 
IT FURTHER REQUESTED THIS COURT TO EXERCISE ITS AUTHORITY UNDER SEC.
239 OF THE JUDICIAL CODE, "TO REQUIRE THE ENTIRE RECORD IN THE CAUSE TO
BE SENT UP FOR ITS CONSIDERATION AND TO DECIDE THE WHOLE MATTER IN
CONTROVERSY."  THE GOVERNMENT MADE A MOTION TO LIKE EFFECT. 

THE CERTIFIED QUESTION IS ANSWERED "NO" AND THE GOVERNMENT'S MOTION
THAT THIS COURT ORDER UP THE ENTIRE RECORD IS DENIED.  P. 753. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE STONE, ANNOUNCED BY MR.
JUSTICE BLACK. 

IN THIS CASE THE COURT OF APPEALS FOR THE TENTH CIRCUIT, ACTING UNDER
SEC. 239 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 346, HAS CERTIFIED A
QUESTION OF LAW UPON WHICH IT DESIRES THE INSTRUCTION OF THIS COURT FOR
THE PROPER DECISION OF THE CAUSE.  THE QUESTION IS WHETHER THAT COURT
MAY, BY MANDAMUS, REVIEW THE JUDGMENT OF THE DISTRICT COURT FOR EASTERN
OKLAHOMA ORDERING THE REMAND OF A PROCEEDING TO THE COUNTY COURT OF
OKFUSKEE COUNTY, OKLAHOMA, FROM WHICH IT HAD BEEN PREVIOUSLY REMOVED TO
THE DISTRICT COURT PURSUANT TO SEC. 3 OF THE ACT OF APRIL 12, 1926, C.
115, 44 STAT. 239. 

THE CERTIFICATE SHOWS THAT PROCEEDINGS WERE BEGUN IN THE COUNTY COURT
BY A PETITION FOR ADMINISTRATION ON THE ESTATE OF PETER MICCO, A
RESTRICTED INDIAN MEMBER OF THE FIVE CIVILIZED TRIBES IN OKLAHOMA.  THE
COUNTY COURT GRANTED THE PETITION, AND APPOINTED ADMINISTRATORS. 
"IN THE STATE COURTS OF OKLAHOMA TO WHICH A RESTRICTED MEMBER OF THE
FIVE CIVILIZED TRIBES IN OKLAHOMA, OR THE RESTRICTED HEIRS OR GRANTEES
OF SUCH INDIAN ARE PARTIES,  ...  AND CLAIMING OR ENTITLED TO CLAIM
TITLE TO OR AN INTEREST IN LANDS ALLOTTED TO A CITIZEN OF THE FIVE
CIVILIZED TRIBES OR THE PROCEEDS, ISSUES, RENTS, AND PROFITS DERIVED
FROM THE SAME, MAY SERVE WRITTEN NOTICE OF THE PENDENCY OF SUCH SUIT
UPON THE SUPERINTENDENT FOR THE FIVE CIVILIZED TRIBES".  THE UNITED
STATES IS AFFORDED A SPECIFIED TIME AFTER NOTICE IS GIVEN TO APPEAR IN
THE SUIT, AND AFTER SUCH APPEARANCE, OR THE EXPIRATION OF THE TIME
SPECIFIED, IT IS PROVIDED THAT "THE PROCEEDINGS AND JUDGMENT IN SAID
CAUSE SHALL BIND THE UNITED STATES AND THE PARTIES THERETO TO THE SAME
EXTENT AS THOUGH NO INDIAN LAND OR QUESTION WERE INVOLVED."  THE ACT
FURTHER PROVIDES THAT 

"THE UNITED STATES MAY BE, AND HEREBY IS, GIVEN THE RIGHT TO REMOVE
ANY SUCH SUIT PENDING IN A STATE COURT TO THE UNITED STATES DISTRICT
COURT BY FILING IN SUCH SUIT IN THE STATE COURT A PETITION FOR THE
REMOVAL OF SUCH SUIT INTO THE SAID UNITED STATES DISTRICT COURT, TO BE
HELD IN THE DISTRICT WHERE SUCH SUIT IS PENDING, TOGETHER WITH THE
CERTIFIED COPY OF THE PLEADINGS IN SUCH SUIT  ...  IT SHALL THEN BE THE
DUTY OF THE STATE COURT TO ACCEPT SUCH PETITION AND PROCEED NO FURTHER
IN SAID SUIT.  THE SAID COPY SHALL BE ENTERED IN THE SAID DISTRICT
COURT OF THE UNITED STATES  ...  AND THE DEFENDANTS AND INTERVENORS IN
SAID SUIT SHALL WITHIN TWENTY DAYS THEREAFTER PLEAD, ANSWER, OR DEMUR
TO THE DECLARATION OR COMPLAINT IN SAID CAUSE, AND THE CAUSE SHALL THEN
PROCEED IN THE SAME MANNER AS IF IT HAD BEEN ORIGINALLY COMMENCED IN
SAID DISTRICT COURT, AND SUCH COURT IS HEREBY GIVEN JURISDICTION TO
HEAR AND DETERMINE SAID SUIT, AND ITS JUDGMENT MAY BE REVIEWED BY
CERTIORARI, APPEAL, OR WRIT OF ERROR IN LIKE MANNER AS IF THE SUIT HAD
BEEN ORIGINALLY BROUGHT IN SAID DISTRICT COURT." 

FOLLOWING THE SERVICE UPON THE SUPERINTENDENT OF THE FIVE CIVILIZED
TRIBES OF NOTICE OF THE PENDENCY OF THE SUIT IN THE COUNTY COURT, THE
UNITED STATES TIMELY FILED ITS PETITION IN THAT COURT FOR AN ORDER OF
REMOVAL, ALLEGING THAT THE PROCEEDING WAS INSTITUTED TO OBTAIN THE
APPOINTMENT OF AN ADMINISTRATOR FOR THE ESTATE OF A THREE-FOURTHS BLOOD
SEMINOLE INDIAN; THAT A PORTION OF SAID ESTATE, COMPRISING REAL AND
PERSONAL PROPERTY, IS RESTRICTED UNDER THE LAWS OF THE UNITED STATES;
THAT TITLE TO AND INTERESTS IN RESTRICTED LAND ARE INVOLVED; THAT THE
HEIRS AT LAW OF MICCO ARE RESTRICTED INDIANS AND WARDS OF THE UNITED
STATES. 

THEREUPON THE COUNTY COURT MADE ITS ORDER OF REMOVAL, AND A
TRANSCRIPT OF THE PROCEEDINGS WAS FILED IN THE DISTRICT COURT.  THE
UNITED STATES THEN FILED ITS COMPLAINT IN INTERVENTION IN THE DISTRICT
COURT, PRAYING A DETERMINATION OF THE HEIRS OF PETER MICCO, AND OF THE
SPECIFIC PARTS OF DECEDENT'S PROPERTY WHICH ARE RESTRICTED AND SUBJECT
TO THE SUPERVISION OF THE SECRETARY OF THE INTERIOR.  ON MOTION OF THE
ADMINISTRATORS APPOINTED BY THE COUNTY COURT, THE DISTRICT COURT
ENTERED AN ORDER DISMISSING THE COMPLAINT IN INTERVENTION WITHOUT
PREJUDICE, AND REMANDING THE PROCEEDING TO THE COUNTY COURT FOR WANT OF
JURISDICTION IN THE DISTRICT COURT.  IN RE MICCO'S ESTATE, 59 F.SUPP. 
434.  THE UNITED STATES THEREUPON INSTITUTED THIS PROCEEDING IN THE
CIRCUIT COURT OF APPEALS BY A PETITION FOR WRIT OF MANDAMUS, TO DIRECT
THE DISTRICT COURT TO VACATE ITS JUDGMENT DISMISSING THE GOVERNMENT'S
PETITION FOR INTERVENTION AND REMANDING THE PROCEEDING. 

THE CERTIFICATE OF THE CIRCUIT COURT OF APPEALS, AFTER STATING THAT
THE COURT IS EQUALLY DIVIDED ON TWO QUESTIONS, FIRST, WHETHER THE
JUDGMENT OF REMAND IS REVIEWABLE BY MANDAMUS, AND, SECOND, WHETHER THE
PROCEEDING WAS REMOVABLE UNDER THE PROVISIONS OF THE ACT OF 1926,
CERTIFIED A SINGLE QUESTION FOR OUR CONSIDERATION, AS FOLLOWS:  "MAY
THIS COURT, BY MANDAMUS, REVIEW THE JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA ORDERING THE REMAND
OF THE PROCEEDING TO THE COUNTY COURT OF OKFUSKEE COUNTY, OKLAHOMA?" 
THE CERTIFICATE FURTHER REQUESTED THIS COURT TO EXERCISE ITS AUTHORITY
UNDER SEC. 239 OF THE JUDICIAL CODE, "TO REQUIRE THE ENTIRE RECORD IN
THE CAUSE TO BE SENT UP FOR ITS CONSIDERATION AND THAT IT DECIDE THE
WHOLE MATTER IN CONTROVERSY."  THE GOVERNMENT HAS MADE A MOTION TO LIKE
EFFECT. 

IN CONSIDERING THESE REQUESTS, IT IS TO BE NOTED THAT THE ONLY MATTER
PENDING IN THE COURT BELOW TO WHICH THE CERTIFIED QUESTION RELATES IS
THE APPLICATION FILED IN THAT COURT FOR MANDAMUS, ON WHICH THE COURT
HAS NOT ACTED.  THERE IS CONSEQUENTLY NO ORDER OR JUDGMENT IN THE CASE
WHICH CAN BE BROUGHT BEFORE THIS COURT BY APPEAL.  THE PRACTICE
ESTABLISHED BY STATUTE, 28 U.S.C. SEC. 346, OF ANSWERING QUESTIONS
CERTIFIED TO THIS COURT, OR IN SOME SUCH CASES, OF DECIDING THE ENTIRE
CONTROVERSY ON THE WHOLE RECORD, IS PLAINLY NOT WITHIN OUR ORIGINAL
JURISDICTION.  AS FAR AS IT IS WITHIN OUR APPELLATE JURISDICTION, OUR
AUTHORITY IS DEFINED WHOLLY BY THE STATUTE, WHICH PROVIDES THAT, UPON
THE PRESENTATION OF THE CERTIFICATE, THIS COURT "MAY REQUIRE THAT THE
ENTIRE RECORD IN THE CAUSE BE SENT UP FOR ITS CONSIDERATION, AND
THEREUPON SHALL DECIDE THE WHOLE MATTER IN CONTROVERSY IN THE SAME
MANNER AS IF IT HAD BEEN BROUGHT (HERE) BY WRIT OF ERROR OR APPEAL." 
BUT THE ONLY MANNER IN WHICH WE, AS AN APPELLATE COURT, CAN DECIDE A
CONTROVERSY BROUGHT HERE BY WRIT OF ERROR OR APPEAL IS BY AFFIRMING,
REVERSING OR MODIFYING THE ORDER OR JUDGMENT BEFORE US FOR REVIEW.  IT
MAY BE DOUBTED WHETHER THE STATUTE CONTEMPLATES OUR GOING BEYOND THE
CERTIFIED QUESTION, TO DECIDE A CASE OR CONTROVERSY NOT WITHIN OUR
ORIGINAL JURISDICTION, AND WHICH, SINCE NO INFERIOR COURT HAS DECIDED
IT, COULD NOT BE BROUGHT HERE ON APPEAL.  BUT WE NEED NOT RESOLVE THE
DOUBT AS TO OUR POWER HERE, FOR AS WILL PRESENTLY APPEAR, THE ANSWER
WHICH WE GIVE TO THE QUESTION CERTIFIED IS DISPOSITIVE OF THE WHOLE
CASE BEFORE THE CIRCUIT COURT OF APPEALS, MAKING IT UNNECESSARY TO
EXPRESS AN OPINION ON ANY OTHER ISSUE WHICH THE RECORD MIGHT PRESENT,
OR TO ORDER THE RECORD TO BE FILED HERE. 

THE ACT OF 1926, UNDER WHICH THE CAUSE, IN RE MICCO'S ESTATE, WAS
REMOVED FROM THE OKLAHOMA COUNTY COURT, CONTAINS NO PROVISIONS
RESPECTING REMAND OR ANY MODE OF REVIEW OF AN ORDER OF REMAND.  BUT ITS
PROVISIONS MUST BE READ WITH THOSE PROVISIONS GOVERNING REMOVAL OF
SUITS FROM STATE COURTS TO FEDERAL DISTRICT COURTS, AND THEIR REMAND,
APPEARING IN SEC. 2 OF THE JUDICIARY ACT OF MARCH 3, 1887(24 STAT. 552,
REENACTED TO CORRECT ERRORS IN ENROLLMENT, AUGUST 13, 1888, 25 STAT.
433, AND AGAIN REENACTED AND AMENDED MARCH 3, 1911, 36 STAT. 1094, AS
SEC. 28 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 71), AND IN SEC. 37 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 80.  SECTION 80 AUTHORIZES REMAND OF "ANY
SUIT" REMOVED FROM A STATE COURT TO A DISTRICT COURT WHERE THE LATTER
FINDS THAT IT IS WITHOUT JURISDICTION.  SECTION 2 OF THE ACT OF 1887
PROVIDED FOR THE REMOVAL OF DIVERSITY SUITS FROM STATE COURTS TO
FEDERAL CIRCUIT COURTS, NOW DISTRICT COURTS, AND, AS CORRECTED IN 1888,
CONTAINED A SEPARATE PARAGRAPH, IN TERMS RELATING TO "ANY CAUSE"
REMOVED FROM A STATE COURT INTO A CIRCUIT COURT.  THIS PARAGRAPH READ: 

"WHENEVER ANY CAUSE SHALL BE REMOVED FROM ANY STATE COURT INTO ANY
CIRCUIT COURT OF THE UNITED STATES, AND THE CIRCUIT COURT SHALL DECIDE
THAT THE CAUSE WAS IMPROPERLY REMOVED, AND ORDER THE SAME TO BE
REMANDED TO THE STATE COURT FROM WHENCE IT CAME, SUCH REMAND SHALL BE
IMMEDIATELY CARRIED INTO EXECUTION, AND NO APPEAL OR WRIT OF ERROR FROM
THE DECISION OF THE CIRCUIT COURT SO REMANDING SUCH CAUSE SHALL BE
ALLOWED." 

BEFORE THE JUDICIARY ACT OF MARCH 3, 1875, 18 STAT. 470, 472, AN
ORDER OF REMAND WAS DEEMED TO BE NOT REVIEWABLE BY APPEAL OR WRIT OF
ERROR BECAUSE THE ORDER WAS NOT FINAL.  RAILROAD CO. V. WISWALL, 23
WALL.  507; IN RE PENNSYLVANIA CO., 137 U.S. 451.  BUT SEC. 5 OF THE
ACT OF 1875 EXPRESSLY AUTHORIZED THE REVIEW OF AN ORDER OF REMAND BY
APPEAL OR WRIT OF ERROR "IN ANY SUIT" REMOVED FROM A STATE COURT.  THIS
PROVISION WAS REPEALED BY SEC. 6 OF THE ACT OF 1887, SUPRA, AND TO MAKE
DOUBLY CERTAIN, SEC. 2, SUPRA, SPECIFICALLY PROHIBITED APPEALS, WITH
THE ADDED DIRECTION THAT THE ORDER OF REMAND SHOULD "BE IMMEDIATELY
CARRIED INTO EXECUTION".  IT THUS APPEARS THAT WHEN THE ACT OF 1926 WAS
PASSED, THE PRACTICE IN REMOVAL CASES WAS, AS IT HAD BEEN ESTABLISHED
FROM THE BEGINNING, SAVE FOR A BRIEF INTERVAL UNDER SEC. 5 OF THE ACT
OF 1875, THAT AN ORDER OF REMAND WAS NOT APPEALABLE, AND IT IS ALSO
CLEAR THAT IN 1926, AS FOR FORTY YEARS BEFORE, SEC. 2 OF THE ACT OF
1887 REQUIRED THE REMAND OF "ANY" REMOVED CAUSE TO "BE IMMEDIATELY
CARRIED INTO EXECUTION". 

THE ENACTMENT OF SEC. 3 OF THE 1926 ACT, WITHOUT MORE, DID NOT CONFER
UPON THE GOVERNMENT ANY RIGHT OF APPEAL FROM AN ORDER REMANDING A CAUSE
REMOVED UNDER THAT ACT.  WE CANNOT SAY THAT UNDER THE ACT OF 1926,
STANDING ALONE, THE RIGHT OF APPEAL FROM AN ORDER OF REMAND STANDS ON
ANY DIFFERENT FOOTING THAN IT DID UNDER ANY OTHER STATUTE AUTHORIZING
REMOVAL BEFORE THE ENACTMENT OF THE 1875 ACT, OR THAT THE ORDER OF
REMAND IS ANY LESS FINAL IN THE CASE OF THE GOVERNMENT THAN IN THE CASE
OF AN INDIVIDUAL.  EACH LOSES, BY THE ORDER, SUCH RIGHT AS THERE MAY BE
TO LITIGATE THE CASE IN THE FEDERAL COURTS ON REMOVAL, BUT BOTH RETAIN
SUCH RIGHTS AS THEY MAY HAVE TO CONTINUE THE LITIGATION IN THE STATE
COURT OR TO BRING AN INDEPENDENT SUIT IN THE FEDERAL COURTS.  TO
WHATEVER EXTENT THE GOVERNMENT MAY BE EXCLUDED FROM THE OPERATION OF A
STATUTE IN WHICH IT IS NOT NAMED, CF. UNITED STATES V. STEVENSON, 215
U.S. 190, 197 WITH UNITED STATES V. CALIFORNIA, 297 U.S. 175, 186, IT
IS CLEAR THAT THE UNITED STATES CAN NOT ASSERT, BY VIRTUE OF ITS
SOVEREIGNTY, A RIGHT OF APPEAL WHICH NO STATUTE HAS CONFERRED, OR
WHICH, IF CONFERRED, HAS BEEN ABOLISHED.  NOT ONLY WAS NO SUCH RIGHT OF
APPEAL CONFERRED BY THE ACT OF 1926, BUT, WE THINK, AS WILL PRESENTLY
APPEAR, THAT THE PROVISIONS OF SEC. 2 OF THE ACT OF 1887, DENYING AN
APPEAL FROM AN ORDER REMANDING A CASE REMOVED UNDER THE ACT OF 1926,
DENIED THE RIGHT TO REVIEW BY MANDAMUS AS WELL.    BEFORE THE ENACTMENT
OF THE ACT OF 1875 IT HAD BEEN SUGGESTED THAT ALTHOUGH ORDERS OF REMAND
WERE NOT APPEALABLE, BECAUSE NON-FINAL, THEY MIGHT BE REVIEWED BY
MANDAMUS.  RAILROAD CO. V. WISWALL, 23 WALL.  507; SEE ALSO IN RE
PENNSYLVANIA CO., 137 U.S. 451, 453; EMPLOYERS CORP. V. BRYANT, 299
U.S. 374, 378.  AFTER THE RIGHT OF APPEAL FROM SUCH AN ORDER WAS
CONFERRED IN ALL REMOVAL CASES BY SEC. 5 OF THE ACT OF 1875, THE
QUESTION AROSE WHETHER THERE COULD BE REVIEW BY MANDAMUS OF AN ORDER
DENYING A MOTION TO REMAND.  THIS WAS ANSWERED IN THE NEGATIVE ON THE
GROUND THAT THE RIGHT TO APPEAL GIVEN BY THE 1875 ACT WAS LIMITED TO
ORDERS OF REMAND.  HENCE RESORT COULD NOT BE HAD TO MANDAMUS TO PERFORM
THE OFFICE OF A WRIT OF ERROR WHICH CONGRESS HAD WITHHELD IN THE CASE
OF AN ORDER DENYING REMAND.  EX PARTE HOARD, 105 U.S. 578; EX PARTE
HARDING, 219 U.S. 363; EX PARTE ROE, 234 U.S. 70.  IN ALL THESE CASES
IT WAS POINTED OUT THAT THE MODE OF REVIEW OF AN ORDER DENYING REMAND
IS BY APPEAL FROM THE FINAL JUDGMENT IN THE SUIT IN WHICH THE REMAND IS
DENIED. 

BUT IT IS URGED THAT THE MERE FAILURE OF THE 1926 ACT TO CONFER ON
THE GOVERNMENT A RIGHT OF APPEAL FROM AN ORDER OF REMAND SHOULD NOT
PRECLUDE REVIEW BY MANDAMUS, SINCE, UNLIKE THE CASE WHERE THE DISTRICT
COURT REFUSES TO REMAND, AN ORDER DENYING THE RIGHT TO HAVE THE REMOVED
CAUSE TRIED IN THE DISTRICT COURT COULD NOT OTHERWISE BE REVIEWED IN
THE FEDERAL COURTS.  BUT THIS ARGUMENT PRESUPPOSES THAT THE PROVISIONS
OF THE 1887 ACT, PROHIBITING APPEALS FROM ORDERS OF REMAND, AND
DIRECTING THE IMMEDIATE EXECUTION OF SUCH ORDERS, DO NOT APPLY TO
CAUSES REMOVED FROM THE STATE COURTS UNDER THE ACT OF 1926, A
SUPPOSITION WHICH DISREGARDS THE PLAIN PURPORT OF THE WORDS OF THE 1887
STATUTE, AND ITS LEGISLATIVE HISTORY. 

AUTHORIZED REVIEW OF AN ORDER OF REMAND BY WRIT OF ERROR OR APPEAL,
WAS, BY ITS TERMS, MADE APPLICABLE GENERALLY TO "ANY SUIT" REMOVED FROM
A STATE COURT TO A FEDERAL CIRCUIT (NOW DISTRICT) COURT.  IT AUTHORIZED
THE CIRCUIT COURT TO REMAND THE CAUSE FOR WANT OF JURISDICTION, AND
PROVIDED THAT THE ORDER OF REMAND SHOULD BE REVIEWABLE BY APPEAL.  THIS
SUBSTITUTED FOR THE REPEALED PROVISION GOVERNING APPEALS, A NEW
PROVISION, WHICH WAS IN TERMS LIKEWISE EXTENDED TO ORDERS OF REMAND
"WHENEVER ANY CAUSE SHALL BE REMOVED FROM ANY STATE COURT".  SECTION 6,
TOGETHER WITH THIS SUBSTITUTED PROVISION, EXPLICITLY WITHDREW THE RIGHT
OF APPEAL AND WRIT OF ERROR IN ALL CASES IN WHICH IT HAD BEEN
PREVIOUSLY ALLOWED BY SEC. 5, THAT IS, IN ALL CASES REMOVED FROM STATE
COURTS UNDER ANY STATUTE AUTHORIZING REMOVAL.  SEE EMPLOYERS CORP. V.
BRYANT, SUPRA, 380-1. 

OR WRIT OF ERROR FROM ORDERS OF REMAND WHICH HAD PREVIOUSLY BEEN
ALLOWED BY SEC. 5 OF THE ACT OF 1875 IN ALL CASES REMOVED FROM STATE
COURTS, BUT WHICH BEFORE THAT ACT HAD BEEN DEEMED NOT TO BE APPEALABLE
BECAUSE NOT FINAL ORDERS.  BUT SEC. 2 ALSO COUPLED WITH THIS
PROHIBITION THE DIRECTION, MADE APPLICABLE IN EVERY CASE REMOVED FROM A
STATE COURT, THAT "SUCH REMAND SHALL BE IMMEDIATELY CARRIED INTO
EXECUTION".  READING AND CONSTRUING THESE PROVISIONS TOGETHER, THIS
COURT HAS CONSISTENTLY HELD, AND IT IS NO LONGER OPEN TO DOUBT, THAT AN
ORDER REMANDING A CAUSE WHICH IS SUBJECT TO THE PROHIBITION AGAINST
APPEALS OF SEC. 2 CANNOT BE REVIEWED BY MANDAMUS.  IN RE PENNSYLVANIA
CO., SUPRA; EMPLOYERS CORP. V. BRYANT, SUPRA. 

CONGRESS, BY THE ADOPTION OF THESE PROVISIONS, AS THUS CONSTRUED,
ESTABLISHED THE POLICY OF NOT PERMITTING INTERRUPTION OF THE LITIGATION
OF THE MERITS OF A REMOVED CAUSE BY PROLONGED LITIGATION OF QUESTIONS
OF JURISDICTION OF THE DISTRICT COURT TO WHICH THE CAUSE IS REMOVED. 
THIS WAS ACCOMPLISHED BY DENYING ANY FORM OF REVIEW OF AN ORDER OF
REMAND, AND, BEFORE FINAL JUDGMENT, OF AN ORDER DENYING REMAND.  IN THE
FORMER CASE, CONGRESS HAS DIRECTED THAT UPON THE REMAND THE LITIGATION
SHOULD PROCEED IN THE STATE COURT FROM WHICH THE CAUSE WAS REMOVED.  IT
MAY BE ARGUABLE, AS A MATTER OF POLICY, THAT IN GIVING THE GOVERNMENT
THE RIGHT TO INTERVENE AND REMOVE A CAUSE FROM A STATE COURT, IT SHOULD
ALSO HAVE BEEN GIVEN THE RIGHT, NOT ALLOWED TO PRIVATE LITIGANTS, TO
HAVE ORDERS OF REMAND REVIEWED IN THE APPELLATE COURTS.  BUT THE
CONGRESSIONAL POLICY OF AVOIDING INTERRUPTION OF THE LITIGATION OF THE
MERITS OF REMOVED CAUSES, PROPERLY BEGUN IN STATE COURTS, IS AS
PERTINENT TO THOSE REMOVED BY THE UNITED STATES AS BY ANY OTHER SUITOR,
SEE UNITED STATES V. CALIFORNIA, SUPRA, 186, AND WE THINK IT PLAIN THAT
THE ACT OF 1926 DID NOT CONFER ANY SUCH RIGHT OF REVIEW, AND THAT THE
ACT OF 1887 INTENDED TO WITHHOLD IT IN ALL CASES OF REMOVAL FROM STATE
COURTS. 

AS WE HAVE ALREADY INDICATED, AND AS THE LEGISLATIVE HISTORY SHOWS,
THESE PROVISIONS OF THE ACT OF 1887 WERE INTENDED TO BE APPLICABLE NOT
ONLY TO REMAND ORDERS MADE IN SUITS REMOVED UNDER THE ACT OF 1887, BUT
TO ORDERS OF REMAND MADE IN CASES REMOVED UNDER ANY OTHER STATUTES, AS
WELL.  COLE V. GARLAND, 107 F. 759, DISMISSED ON APPEAL 183 U.S. 693,
APPROVED IN GAY V. RUFF, 292 U.S. 25, 29, N. 5; SEE ALSO EMPLOYERS
CORP. V. BRYANT, SUPRA, 380-1.  IT WAS SO HELD WITH RESPECT TO THE ACT
OF 1926 IN UNITED STATES V. FIXICO, 115 F.2D 389. 

NOTHING IN THE ACT OF 1926 PURPORTS TO IMPAIR OR RESTRICT THE
APPLICATION OF SEC. 2 OF THE 1887 ACT, THUS CONSTRUED, TO ORDERS OF
REMAND MADE UNDER 28 U.S.C., SEC. 80, IN CASES REMOVED UNDER THE 1926
ACT.  CONGRESS, IN ENACTING THE 1926 ACT, NOT ONLY FAILED TO INCLUDE IN
IT ANY PROVISION MODIFYING WHAT HAD BEEN FOR FORTY YEARS THE
ESTABLISHED PRACTICE OF DENYING REVIEW OF ORDERS REMANDING CAUSES
REMOVED FROM STATE COURTS, BUT IT MUST BE TAKEN TO HAVE BEEN AWARE OF
THE UNIVERSALITY OF THAT PRACTICE, AND TO HAVE BEEN CONTENT THAT, AS
ESTABLISHED BY THE 1887 ACT, IT SHOULD APPLY TO CASES REMOVED UNDER THE
1926 ACT.  STATUTORY LANGUAGE AND OBJECTIVE, THUS APPEARING WITH
REASONABLE CLARITY, ARE NOT TO BE OVERCOME BY RESORT TO A MECHANICAL
RULE OF CONSTRUCTION, WHOSE FUNCTION IS NOT TO CREATE DOUBTS, BUT TO
RESOLVE THEM WHEN THE REAL ISSUE OR STATUTORY PURPOSE IS OTHERWISE
OBSCURE.  UNITED STATES V. CALIFORNIA, SUPRA, 186. 

THE CERTIFIED QUESTION WILL BE ANSWERED "NO", AND THE GOVERNMENT'S
MOTION THAT WE ORDER UP THE ENTIRE RECORD MAY ACCORDINGLY BE DENIED. 
SO ORDERED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING. 

THE ACT OF APRIL 12, 1926, 44 STAT. 239, HAS TWO MAIN PURPOSES.  IT
PROVIDES THE MACHINERY FOR BRINGING IN THE UNITED STATES WHERE THE
PROPERTY INTERESTS OF A RESTRICTED INDIAN OF THE FIVE CIVILIZED TRIBES
ARE BEING LITIGATED IN EITHER THE FEDERAL OR THE STATE COURTS.  THIS
WAS DONE SO THAT ALL INTERESTED PARTIES MIGHT BE CONCLUDED BY ONE
PROCEEDING AND TITLES TO THESE INDIAN LANDS STABILIZED.  FN1  H. REP.
NO. 322, 69TH CONG., 1ST SESS., P. 2.  IN CASE THE PROCEEDING IS
BROUGHT IN A STATE COURT, THE UNITED STATES IS GIVEN "THE RIGHT TO
REMOVE" THE SUIT TO THE FEDERAL COURT BY FILING IN THE STATE COURT A
PETITION FOR REMOVAL.  THE ACT PROVIDES THAT WHEN SUCH PETITION IS
FILED IT SHALL BE "THE DUTY OF THE STATE COURT TO ACCEPT SUCH PETITION
AND PROCEED NO FURTHER IN SAID SUIT."  THE RIGHT TO REMOVE IS
UNQUALIFIED.  IT RESTS IN THE SOLE DISCRETION OF THE UNITED STATES,
WHICH IS GIVEN THE CHOICE OF THE FORUM.  AS STATED IN THE HOUSE REPORT,
SUPRA, P. 2: 

"SECTION 3 PROVIDES ONLY WHERE THE INTEREST OF A RESTRICTED INDIAN OF
THE FIVE CIVILIZED TRIBES IS BEING LITIGATED IN THE STATE COURTS THAT
SERVICE MAY BE HAD UPON THE GOVERNMENT AND THE GOVERNMENT IS GIVEN THE
RIGHT TO CHOSE THE FORUM IN WHICH THE SUIT MAY BE TRIED AND MAY
TRANSFER SUCH CASE TO THE UNITED STATES DISTRICT COURT UPON MOTION IN
THE EVENT THAT THE GOVERNMENT CHOOSES TO DO SO." 

BUT IT IS SAID THAT THIS SPECIAL ACT, PASSED IN 1926, IS GOVERNED BY
THE GENERAL REMOVAL ACT OF MARCH 3, 1887, 24 STAT. 552, JUDICIAL CODE
SEC. 28, 28 U.S.C. SEC. 71, WHICH DISALLOWS APPEALS FROM ORDERS
REMANDING CAUSES REMOVED FROM STATE COURTS.  I DO NOT AGREE. 

(1)  THE 1926 ACT CONTAINS NONE OF THE QUALIFICATIONS WRITTEN INTO
THE GENERAL REMOVAL ACTS. 

(2)  THE 1926 ACT IS AN INDEPENDENT STATUTE DEALING WITH A HIGHLY
SPECIALIZED PROBLEM AND LIMITED AS TO PARTIES AND SUBJECT MATTER.  THE
MISCHIEF AT WHICH THE GENERAL REMOVAL ACTS WERE AIMED IS NOT PRESENT
HERE.  THEY WERE CONCERNED WITH ELIMINATING LITIGIOUS INTERRUPTIONS OF
PRIVATE LITIGATION BY PROLONGED DISPUTES OVER THE JURISDICTION OF THE
COURT TO WHICH THE CAUSE WAS REMOVED.  BUT THE UNITED STATES IS NOT IN
A POSITION OF A PRIVATE LITIGANT.  THE UNITED STATES HAS A SPECIAL
FUNCTION TO PERFORM IN THESE INDIAN CASES.  IT REPRESENTS THE PUBLIC
INTEREST.  HECKMAN V. UNITED STATES, 224 U.S. 413, 437-444.  IT ALONE
IS GIVEN THE "RIGHT TO REMOVE".  IF THE CAUSE IS REMANDED, IT ALONE CAN
SEEK REVIEW.  IT SHOULD BE REMEMBERED THAT THE 1926 ACT PROVIDES A
PROCEDURE WHEREBY THE UNITED STATES CAN BE BOUND BY A SUIT INSTITUTED
BY ANOTHER.  IT IS FAIR TO INFER THAT WHEN THE UNITED STATES WAS
SUBJECTED TO THAT RISK, CONGRESS INTENDED THAT IT SHOULD HAVE A RIGHT,
IF IT SO ELECTED, TO HAVE THE CAUSE HEARD AND DETERMINED BY ITS OWN
COURTS.  THE "RIGHT CHOSE THE FORUM IN WHICH THE SUIT MAY BE TRIED" (H.
REP., SUPRA) CAN HARDLY HAVE ANY OTHER MEANING. 

(3)  THE 1887 ACT IN ITS OPERATION WAS NOT APPLICABLE TO THE UNITED
STATES.  IT PROVIDED FOR REMOVAL BY DEFENDANTS.  THEY ALONE COULD
REMOVE.  THE RIGHT OF REMOVAL WAS THEREFORE NOT AVAILABLE TO THE UNITED
STATES.  IT COULD NOT BE A DEFENDANT IN A STATE COURT, SINCE IT HAD NOT
CONSENTED TO BE SUED THERE.  THAT WAS WELL SETTLED AT THE TIME.  FOR IN
1896 THE COURT STATED, "THE UNITED STATES, BY VARIOUS ACTS OF CONGRESS,
HAVE CONSENTED TO BE SUED IN THEIR OWN COURTS IN CERTAIN CLASSES OF
CASES; BUT THEY HAVE NEVER CONSENTED TO BE SUED IN THE COURTS OF A
STATE IN ANY CASE."  STANLEY V. SCHWALBY, 162 U.S. 255, 270.  IT SEEMS
CLEAR THEN THAT THE PROHIBITION AGAINST REVIEW OF ORDERS OF REMAND
CONTAINED IN THE 1887 ACT WAS NOT AIMED AT THE UNITED STATES.  I THINK,
THEREFORE, THAT IT SHOULD REQUIRE AN EXPLICIT PROVISION IN THE 1926 ACT
TO CONCLUDE THAT THE UNITED STATES WAS NOW TO BE BOUND BY AN ACT
HERETOFORE INAPPLICABLE TO IT.  IT HAS LONG BEEN HELD THAT IF THE
UNITED STATES IS TO BE DEPRIVED OF A RIGHT OR A REMEDY BY THE GENERAL
TERMS OF A STATUTE, "THE LANGUAGE MUST BE CLEAR AND SPECIFIC TO THAT
EFFECT."  UNITED STATES V. STEVENSON, 215 U.S. 190, 197; UNITED STATES
V. AMERICAN BELL TEL. CO., 159 U.S. 548, 554; UNITED STATES V. HERRON,
20 WALL.  251, 263; DOLLAR SAVINGS BANK V. UNITED STATES, 19 WALL. 
227, 239.  THIS SEEMS TO ME TO BE A CLEAR CASE FOR THE APPLICATION OF
THAT RULE. 

IF CONGRESS HAD SAID THAT ORDERS OF REMAND UNDER THE 1926 ACT SHOULD
NOT BE REVIEWED, MANDAMUS OF COURSE WOULD NOT LIE.  BUT SINCE THERE IS
NO SUCH PROHIBITION, MANDAMUS IS AVAILABLE TO COMPEL THE DISTRICT COURT
TO PERFORM ITS DUTY.  RAILROAD CO. V. WISWALL, 23 WALL.  507; IN RE
PENNSYLVANIA CO., 137 U.S. 451, 453. 

FN1  PRIOR TO THE 1926 ACT THE UNITED STATES COULD NOT BE BOUND BY A
PROCEEDING AFFECTING RESTRICTED INDIAN LANDS.  AFTER THE MATTER HAD
BEEN LITIGATED, THE UNITED STATES COULD STILL INSTITUTE AN INDEPENDENT
SUIT AND ANNUL THE PRIOR DECREE ENTERED IN THE SUIT TO WHICH IT WAS NOT
A PARTY.  SUNDERLAND V. UNITED STATES, 266 U.S. 226. 
..END :










SWANSON V. MARRA BROS., 328 U.S. 1 


NO. 405.  ARGUED FEBRUARY 1, 1946.  - DECIDED APRIL 22, 1946.  - 149
F.2D 646, AFFIRMED. 


1.  A LONGSHOREMAN IN THE EMPLOY OF A STEVEDORING COMPANY, WHILE ON A
PIER AND ENGAGED IN LOADING CARGO ON A SHIP LYING ALONGSIDE IN A
HARBOR, WAS STRUCK BY A LIFE RAFT WHICH FELL FROM THE VESSEL AND
INJURED HIM.  HELD, HE HAS NO RIGHT OF RECOVERY AGAINST HIS EMPLOYER
UNDER THE JONES ACT, 41 STAT. 1007, 46 U.S.C. SEC. 688.  INTERNATIONAL
STEVEDORING CO. V. HAVERTY, 272 U.S. 50; O'DONNELL V. GREAT LAKES
DREDGE & DOCK CO., 318 U.S. 36, DIFFERENTIATED.  PP. 2, 7. 

2.  BY LEGISLATION SUBSEQUENT TO THE JONES ACT AND THE DECISION IN
THE HAVERTY CASE, CONGRESS HAS EXPRESSED ITS PURPOSE TO RESTRICT THE
LIABILITY OF THE EMPLOYER UNDER FEDERAL STATUTES TO INJURIES TO HIS
EMPLOYEES OCCURRING ON NAVIGABLE WATERS OR INFLICTED UPON AN EMPLOYEE
WHO IS EITHER A MASTER OR A MEMBER OF A CREW OF THE VESSEL, INJURED IN
THE COURSE OF HIS EMPLOYMENT AS SUCH.  P. 5. 

3.  THE EFFECT OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT OF MARCH 4, 1927, 33 U.S.C. 901 ET SEQ., IS TO CONFINE THE BENEFITS
OF THE JONES ACT TO THE MEMBERS OF THE CREW OF A VESSEL PLYING IN
NAVIGABLE WATERS AND TO SUBSTITUTE FOR THE RIGHT OF RECOVERY RECOGNIZED
BY THE HAVERTY CASE ONLY SUCH RIGHTS TO COMPENSATION AS ARE GIVEN BY
THE LONGSHOREMEN'S ACT.  P. 7. 

4.  SINCE THE LONGSHOREMEN'S ACT IS RESTRICTED TO COMPENSATION FOR
INJURIES OCCURRING ON NAVIGABLE WATERS, IT EXCLUDES FROM ITS OWN TERMS
AND FROM THE JONES ACT ANY REMEDIES AGAINST THE EMPLOYER FOR INJURIES
INFLICTED ON SHORE.  P. 7. 

5.  IT LEAVES THE INJURED EMPLOYEES IN SUCH CASES TO PURSUE THE
REMEDIES AFFORDED BY THE LOCAL LAW, WHICH THIS COURT HAS OFTEN HELD
PERMITS RECOVERY AGAINST THE EMPLOYER FOR INJURIES INFLICTED BY LAND
TORTS ON HIS EMPLOYEES WHO ARE NOT MEMBERS OF THE CREW OF A VESSEL.  P.
7. 

6.  IT LEAVES UNAFFECTED THE RIGHTS OF MEMBERS OF THE CREW OF A
VESSEL TO RECOVER UNDER THE JONES ACT WHEN INJURED WHILE PURSUING THEIR
MARITIME EMPLOYMENT WHETHER ON BOARD OR ON SHORE.  PP. 7-8. 

SWANSON V. MARRA BROTHERS, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

PETITIONER, A LONGSHOREMAN IN THE EMPLOY OF RESPONDENT STEVEDORING
COMPANY, SUED TO RECOVER UNDER THE JONES ACT, 41 STAT. 1007, FOR
INJURIES SUFFERED WHILE ON A PIER AND ENGAGED IN LOADING CARGO ON A
VESSEL LYING ALONGSIDE IN THE HARBOR.  THE DISTRICT COURT DISMISSED THE
COMPLAINT.  57 F.SUPP.  456.  THE CIRCUIT COURT OF APPEALS AFFIRMED. 
149 F.2D 646.  THIS COURT GRANTED CERTIORARI.  326 U.S. 710.  AFFIRMED,
P. 8. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE STONE, ANNOUNCED BY MR.
JUSTICE BLACK. 

PETITIONER, A LONGSHOREMAN IN THE EMPLOY OF RESPONDENT STEVEDORING
COMPANY, WHILE ON A PIER AND ENGAGED IN LOADING CARGO ON A VESSEL LYING
ALONGSIDE IN THE HARBOR OF PHILADELPHIA, WAS STRUCK BY A LIFE RAFT
WHICH FELL FROM THE VESSEL AND INJURED HIM.  THE QUESTION FOR DECISION,
WHICH WAS RESERVED IN O'DONNELL V. GREAT LAKES DREDGE & DOCK CO., 318
U.S. 36, 43, 44, IS WHETHER PETITIONER MAY MAINTAIN A SUIT AGAINST HIS
EMPLOYER TO RECOVER FOR THE INJURY, UNDER THE JONES ACT, 41 STAT. 1007,
46 U.S.C. SEC. 688. 

PETITIONER, AFTER HAVING SOUGHT AND RECEIVED COMPENSATION FOR HIS
INJURY UNDER THE STATE EMPLOYERS LIABILITY ACT OF PENNSYLVANIA, BROUGHT
THE PRESENT SUIT IN THE DISTRICT COURT FOR EASTERN PENNSYLVANIA
"PURSUANT TO THE MARITIME LAW AS MODIFIED BY SECTION 33 OF THE MERCHANT
MARINE ACT OF 1920" (THE JONES ACT).  HE ALLEGED AS THE CAUSE OF THE
INJURY RESPONDENT'S BREACH OF DUTY IN FAILING TO PROVIDE A SAFE AND
SEAWORTHY VESSEL AND APPLIANCES AND A SAFE PLACE FOR PETITIONER TO
WORK, AND IN FAILING TO MAKE THE LIFE RAFT SECURE AND TO MAKE ADEQUATE
INSPECTION OF IT.  THE DISTRICT COURT DISMISSED THE COMPLAINT, HOLDING
THAT THERE COULD BE NO RECOVERY UNDER THE JONES ACT BY ONE NOT A SEAMAN
FOR AN INJURY SUFFERED BY HIM WHILE ON SHORE.  57 F.SUPP.  456.  THE
COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED.  149 F.2D 646.  WE
GRANTED CERTIORARI, 326 U.S. 710, BECAUSE OF THE NOVELTY AND IMPORTANCE
OF THE QUESTION PRESENTED. 

THE JONES ACT PROVIDES IN PERTINENT PART: 

"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 COMMONLAW RIGHT OR REMEDY IN
CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES SHALL APPLY  ..." 

THE ACT THUS MADE APPLICABLE TO SEAMEN, INJURED IN THE COURSE OF
THEIR EMPLOYMENT, THE PROVISIONS OF THE FEDERAL EMPLOYERS' LIABILITY
ACT, 45 U.S.C. SEC. 51 ET SEQ., WHICH GIVE TO RAILROAD EMPLOYEES A
RIGHT OF RECOVERY FOR INJURIES RESULTING FROM THE NEGLIGENCE OF THEIR
EMPLOYER, ITS AGENTS OR EMPLOYEES.  PANAMA R. CO. V. JOHNSON, 264 U.S.
375; THE ARIZONA V. ANELICH, 298 U.S. 110, 118. 

WE HAVE HELD THAT A STEVEDORE WHO WAS INJURED WHILE STORING CARGO,
AND WHILE ON BUT NOT EMPLOYED BY A VESSEL LYING IN NAVIGABLE WATERS,
WAS AUTHORIZED BY THE JONES ACT TO BRING SUIT AGAINST HIS EMPLOYER TO
RECOVER FOR INJURY CAUSED BY THE EMPLOYER'S NEGLIGENCE.  INTERNATIONAL
STEVEDORING CO. V. HAVERTY, 272 U.S. 50; URAVIC V. JARKA CO., 282 U.S.
234.  IT WAS THOUGHT THAT BOTH THE LANGUAGE AND THE POLICY OF THE ACT
INDICATED THAT BY TAKING OVER PRINCIPLES OF RECOVERY ALREADY
ESTABLISHED FOR THE EMPLOYEES OF INTERSTATE RAILROADS AND IN MAKING
THEM APPLICABLE IN THE ADMIRALTY SETTING, CONGRESS INTENDED TO EXTEND
THEM TO STEVEDORES, THE EMPLOYEES OF AN INDEPENDENT CONTRACTOR, WHILE
WORKING ON A VESSEL IN NAVIGABLE WATERS AND WHILE RENDERING SERVICES
CUSTOMARILY PERFORMED BY SEAMEN.  INTERNATIONAL STEVEDORING CO. V.
HAVERTY, SUPRA, 52; SEE O'DONNELL V. GREAT LAKES DREDGE & DOCK CO.,
SUPRA, 38, 39. 

PETITIONER, IN URGING THAT THE DOCTRINE OF THE HAVERTY CASE BE
EXTENDED SO AS TO ALLOW HIM TO RECOVER FOR HIS INJURIES SUSTAINED ON
SHORE, PLACES HIS RELIANCE ON O'DONNELL V. GREAT LAKES DREDGE & DOCK
CO., SUPRA.  WE THERE HELD THE SHIP OWNER LIABLE, UNDER THE JONES ACT,
FOR INJURIES CAUSED TO A SEAMAN BY A FELLOW SERVANT WHILE THE FORMER
WAS ON SHORE ENGAGED IN REPAIRING A CONDUIT WHICH WAS A PART OF THE
VESSEL AND USED FOR DISCHARGING ITS CARGO.  BUT IN THAT CASE WE
SUSTAINED THE RECOVERY BECAUSE THE INJURED PERSON WAS A SEAMAN AND AN
EMPLOYEE OF THE VESSEL, ENGAGED IN THE COURSE OF HIS EMPLOYMENT AS
SUCH.  AN INCIDENT TO HIS EMPLOYMENT BY THE VESSEL AS A SEAMAN WAS HIS
RIGHT TO MAINTENANCE AND CURE FOR INJURIES RECEIVED IN THE COURSE OF
HIS EMPLOYMENT, A CAUSE OF ACTION TRADITIONALLY COGNIZABLE IN
ADMIRALTY.  THE OSCEOLA, 189 U.S. 158, 175; CALMAR S.S. CORP. V.
TAYLOR, 303 U.S. 525, 527-528.  THE JURISDICTION OF ADMIRALTY OVER SUCH
A CAUSE OF ACTION DEPENDS, NOT ON THE PLACE WHERE THE INJURY IS
INFLICTED, COMPARE THE PLYMOUTH, 3 WALL.  20; CLEVELAND TERMINAL R. CO.
V. STEAMSHIP CO., 208 U.S. 316; SEE MINNIE V. PORT HURON CO., 295 U.S.
647; THE ADMIRAL PEOPLES, 295 U.S. 649, BUT ON THE NATURE OF THE
SEAMAN'S SERVICE, HIS STATUS AS A MEMBER OF THE VESSEL, AND HIS
RELATIONSHIP AS SUCH TO THE VESSEL AND ITS OPERATION IN NAVIGABLE
WATERS.  O'DONNELL V. GREAT LAKES DREDGE & DOCK CO., SUPRA, 42-43; CF.
CALMAR S.S. CORP. V. TAYLOR, SUPRA. 

CONGRESS, IN THUS ENLARGING AN ADMIRALTY REMEDY, WAS EXERCISING ITS
CONSTITUTIONAL POWER TO REGULATE COMMERCE, AND TO MAKE LAWS WHICH SHALL
BE NECESSARY AND PROPER TO CARRY INTO EXECUTION POWERS VESTED BY THE
CONSTITUTION IN THE GOVERNMENT OR ANY DEPARTMENT OF IT, ART. I, SEC. 8,
CL. 18, INCLUDING THE JUDICIAL POWER WHICH, BY ART. III, SEC. 2,
EXTENDS "TO ALL CASES OF ADMIRALTY AND MARITIME JURISDICTION."  BY SEC.
9 OF THE JUDICIARY ACT OF 1789, 1 STAT. 76, 28 U.S.C. SEC. 371,
(THIRD), CONGRESS CONFERRED ON THE DISTRICT COURTS "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  ..."  BY THE GRANT OF
ADMIRALTY AND MARITIME JURISDICTION IN THE JUDICIARY ARTICLE, AND BY
SEC. 9 OF THE JUDICIARY ACT, THE NATIONAL GOVERNMENT TOOK OVER THE
TRADITIONAL BODY OF RULES, PRECEPTS AND PRACTICES KNOWN TO LAWYERS AND
LEGISLATORS AS THE MARITIME LAW, SO FAR AS THE COURTS INVESTED WITH
ADMIRALTY JURISDICTION SHOULD ACCEPT AND APPLY THEM.  SEE O'DONNELL V.
GREAT LAKES DREDGE & DOCK CO., SUPRA, 40, AND CASES CITED. 

WE HAVE NO OCCASION TO CONSIDER HERE WHETHER CONGRESS, BY THE JONES
ACT, UNDERTOOK TO OR COULD GIVE A REMEDY AGAINST THE EMPLOYER FOR
INJURIES CAUSED BY A VESSEL TO HIS EMPLOYEES, NOT MEMBERS OF THE CREW
OF THE VESSEL, WHILE WORKING ON SHORE.  FOR CONGRESS, BY LATER
LEGISLATION, HAS EXPRESSED ITS PURPOSE TO RESTRICT THE LIABILITY OF THE
EMPLOYER UNDER FEDERAL STATUTES TO INJURIES TO HIS EMPLOYEES OCCURRING
ON NAVIGABLE WATERS OR INFLICTED UPON AN EMPLOYEE WHO IS EITHER A
MASTER OR A MEMBER OF A CREW OF THE VESSEL, INJURED IN THE COURSE OF
HIS EMPLOYMENT AS SUCH. 

WITHIN SIX MONTHS AFTER THE DECISION IN THE HAVERTY CASE AND NEARLY
SIXTEEN YEARS BEFORE OUR DECISION IN THE O'DONNELL CASE, CONGRESS
ENACTED THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT OF
MARCH 4, 1927, 44 STAT. 1424, 33 U.S.C. SEC. 901 ET SEQ., WHICH GAVE A
REMEDY AGAINST EMPLOYERS BY WAY OF COMPENSATION FOR DISABILITY OR DEATH
SUFFERED ON NAVIGABLE WATERS BY ANY EMPLOYEE NOT A "MASTER OR MEMBER OF
A CREW OF ANY VESSEL."  SEC. 903.  THE LIABILITY OF EMPLOYERS TO PAY
THE PRESCRIBED COMPENSATION IS, BY SEC. 905, MADE "EXCLUSIVE AND IN
PLACE OF ALL OTHER LIABILITY OF SUCH EMPLOYER TO THE EMPLOYEE," HIS
LEGAL REPRESENTATIVE AND ANY OTHER PERSON ENTITLED TO RECOVER DAMAGES
"AT LAW OR IN ADMIRALTY" FROM THE EMPLOYER FOR THE INJURY OR DEATH.  BY
SEC. 903(A)(1) RECOVERY MAY BE HAD UNDER THE ACT ONLY "IF RECOVERY FOR
THE DISABILITY OR DEATH THROUGH WORKMEN'S COMPENSATION PROCEEDINGS MAY
NOT VALIDLY BE PROVIDED BY STATE LAW." 

THE ACT BOTH IMPOSES LIABILITY ON THE EMPLOYER FOR INJURIES ON
NAVIGABLE WATERS TO EMPLOYEES NOT INCLUDING THE MASTER OR MEMBERS OF A
CREW OF A VESSEL, AND MAKES THE PRESCRIBED LIABILITY TO EMPLOYEES
WITHIN THE COVERAGE OF THE ACT EXCLUSIVE.  THE ACT THUS EXCLUDES FROM
ITS BENEFITS STEVEDORES NOT MEMBERS OF THE CREW WHO ARE INJURED ON
NAVIGABLE WATERS FROM RECOVERING UNDER THE JONES ACT AS INTERPRETED BY
THE HAVERTY CASE.  THOSE PROVISIONS MAKE IT PLAIN THAT CONGRESS' OWN
INTERPRETATION OF THE JONES ACT IS SUCH AS TO PRECLUDE THE EXTENSION OF
THE DOCTRINE OF THAT CASE TO THE SPECIFIED EMPLOYEES INJURED ON LAND. 

WE CAN HARDLY SUPPOSE THAT CONGRESS, WHILE EXPLICITLY DENYING A RIGHT
OF RECOVERY UNDER THE JONES ACT TO MARITIME WORKERS NOT MEMBERS OF A
CREW WHO ARE INJURED ON BOARD A VESSEL, EITHER THOUGHT THAT THE JONES
ACT EXTENDED TO INJURIES INFLICTED ON SHORE TO EMPLOYEES NOT MEMBERS OF
A CREW, SEE STATE INDUSTRIAL COMMISSION V. NORDENHOLT CORP., 259 U.S.
263, 273; SMITH & SON V. TAYLOR, 276 U.S. 179, OR INTENDED THAT THERE
SHOULD BE ESTABLISHED FOR SUCH WORKERS INJURED ON SHORE, BY EXTENSION
OF THE DOCTRINE OF THE HAVERTY CASE, A RIGHT OF RECOVERY WHICH IT AT
THE SAME TIME WITHDREW FROM SUCH WORKERS WHEN INJURED ON NAVIGABLE
WATERS.  THE SENATE JUDICIARY COMMITTEE, IN RECOMMENDING THE
LEGISLATION WHICH BECAME THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, EXPRESSED DOUBT AS TO THE CONSTITUTIONAL POWER OF
CONGRESS TO GIVE RECOVERY TO SUCH EMPLOYEES INJURED ON SHORE, SAYING
"THESE MEN ARE MAINLY EMPLOYED IN LOADING, UNLOADING, REFITTING, AND
REPAIRING SHIPS; BUT IT SHOULD BE REMARKED THAT INJURIES OCCURRING IN
LOADING OR UNLOADING ARE NOT COVERED UNLESS THEY OCCUR ON THE SHIP OR
BETWEEN THE WHARF AND THE SHIP SO AS TO BRING THEM WITHIN THE MARITIME
JURISDICTION OF THE UNITED STATES."  SEN. REP. NO. 973, 69TH CONG., 1ST
SESS., P. 16.  CF. CLEVELAND TERMINAL R. CO. V. STEAMSHIP CO., SUPRA;
THE ADMIRAL PEOPLES, SUPRA. 

WE MUST TAKE IT THAT THE EFFECT OF THESE PROVISIONS OF THE
LONGSHOREMEN'S ACT IS TO CONFINE THE BENEFITS OF THE JONES ACT TO THE
MEMBERS OF THE CREW OF A VESSEL PLYING IN NAVIGABLE WATERS AND TO
SUBSTITUTE FOR THE RIGHT OF RECOVERY RECOGNIZED BY THE HAVERTY CASE
ONLY SUCH RIGHTS TO COMPENSATION AS ARE GIVEN BY THE LONGSHOREMEN'S
ACT.  BUT SINCE THIS ACT IS RESTRICTED TO COMPENSATION FOR INJURIES
OCCURRING ON NAVIGABLE WATERS, IT EXCLUDES FROM ITS OWN TERMS AND FROM
THE JONES ACT ANY REMEDIES AGAINST THE EMPLOYER FOR INJURIES INFLICTED
ON SHORE.  THE ACT LEAVES THE INJURED EMPLOYEES IN SUCH CASES TO PURSUE
THE REMEDIES AFFORDED BY THE LOCAL LAW, WHICH THIS COURT HAS OFTEN HELD
PERMITS RECOVERY AGAINST THE EMPLOYER FOR INJURIES INFLICTED BY LAND
TORTS ON HIS EMPLOYEES WHO ARE NOT MEMBERS OF THE CREW OF A VESSEL. 
STATE INDUSTRIAL COMMISSION V. NORDENHOLT CORP., SUPRA; SMITH & SON V.
TAYLOR, SUPRA; CF. MINNIE V. PORT HURON CO., SUPRA. AND IT LEAVES
UNAFFECTED THE RIGHTS OF MEMBERS OF THE CREW OF A VESSEL TO RECOVER
UNDER THE JONES ACT WHEN INJURED WHILE PURSUING THEIR MARITIME
EMPLOYMENT WHETHER ON BOARD, WARNER V. GOLTRA, 293 U.S. 155; NORTON V.
WARNER CO., 321 U.S. 565; SEE SOUTH CHICAGO CO. V. BASSETT, 309 U.S.
251, 255-6, OR ON SHORE.  O'DONNELL V. GREAT LAKES DREDGE & DOCK CO.,
SUPRA.  AFFIRMED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















ILLINOIS V. UNITED STATES, 328 U.S. 8 


NO. 749.  ARGUED MARCH 28, 1946.  - DECIDED APRIL 22, 1946.  - 391 ILL.
29, 62 N.E.2D 537, AFFIRMED. 


1.  UNDER R.S. SEC. 3466, WHICH PROVIDES THAT WHERE AN INSOLVENT
DEBTOR MAKES A VOLUNTARY ASSIGNMENT OF HIS PROPERTY "THE DEBTS DUE TO
THE UNITED STATES SHALL BE FIRST SATISFIED," A CLAIM OF THE UNITED
STATES FOR TAXES UNDER THE SOCIAL SECURITY ACT IS ENTITLED TO PRIORITY
OVER THE CLAIM OF A STATE FOR TAXES UNDER THE STATE UNEMPLOYMENT
COMPENSATION ACT.  PP. 9, 11. 

2. PRIORITY OF THE UNITED STATES UNDER R.S. SEC. 3466 IN SUCH CASE IS
NOT INCONSISTENT WITH EITHER THE EXPRESS LANGUAGE OR THE PURPOSE OF THE
SOCIAL SECURITY ACT.  P. 11. 

ILLINOIS EX REL. GORDON, DIRECTOR OF LABOR, V. UNITED STATES. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

THE STATE SUPREME COURT SUSTAINED A CLAIM OF THE UNITED STATES TO
PRIORITY OVER THE CLAIM OF THE STATE IN THE PROPERTY OF AN INSOLVENT
DEBTOR.  391 ILL. 29, 62 N.E.2D 537.  THIS COURT GRANTED CERTIORARI. 
327 U.S. 771.  AFFIRMED, P. 12. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE SUPREME COURT OF ILLINOIS HELD THAT CERTAIN TAX
CLAIMS OF THE FEDERAL GOVERNMENT AGAINST AN INSOLVENT TAXPAYER MUST BE
SATISFIED IN FULL BEFORE THE STATE OF ILLINOIS CAN RECOVER AMOUNTS DUE
AS TAXES UNDER ITS UNEMPLOYMENT COMPENSATION ACT.  391 ILL. 29, 62
N.E.2D 537.  THIS DECISION IS SUBSTANTIALLY IN CONFLICT WITH THAT OF
THE SUPREME COURT OF RHODE ISLAND IN RIVARD V. BIJOU FURNITURE CO., 67
R.I. 251, 21 A.2D 563, 68 R.I. 358, 27 A.2D 853, AND WE GRANTED
CERTIORARI TO RESOLVE THIS CONFLICT. 

THE CLAIM OF THE UNITED STATES IS FOR FEDERAL UNEMPLOYMENT
COMPENSATION TAXES UNDER TITLE 9 AND FEDERAL INSURANCE CONTRIBUTIONS
TAXES UNDER TITLE 8 OF THE SOCIAL SECURITY ACT, 49 STAT. 620.  FN1 THE
PRIORITY CLAIMED BY THE UNITED STATES RESTS ON R.S. 3466, WHICH
PROVIDES IN PART THAT "WHENEVER ANY PERSON INDEBTED TO THE UNITED
STATES  ..., NOT HAVING SUFFICIENT PROPERTY TO PAY ALL HIS DEBTS, MAKES
A VOLUNTARY ASSIGNMENT" OF HIS PROPERTY, "THE DEBTS DUE TO THE UNITED
STATES SHALL BE FIRST SATISFIED." 

THE STATE CONCEDES THAT THE FACTS HERE BRING THE UNITED STATES' TAX
CLAIMS WITHIN THE GENERAL PRIORITY PROVISIONS OF SEC. 3466.  THE
TAXPAYER WHILE INSOLVENT HAD MADE A VOLUNTARY ASSIGNMENT OF ALL HIS
PROPERTY FOR THE BENEFIT OF CREDITORS.  AND IT IS WELL SETTLED THAT
TAXES ARE DEBTS WITHIN THE MEANING OF SEC. 3466.  UNITED STATES V.
WADDILL CO., 323 U.S. 353, 355.  THE STATE'S ONLY CONTENTION IS THAT
THE SOCIAL SECURITY ACT EVINCES A CONGRESSIONAL PURPOSE TO FREE STATE
UNEMPLOYMENT TAX CLAIMS FROM THE GENERAL PRIORITY PROVISIONS OF SEC.
3466. 

THE STATE DRAWS ITS INFERENCE NOT FROM AN EXPRESS DECLARATION OF
CONGRESSIONAL PURPOSE, BUT FROM WHAT IT DEEMS TO BE BROAD IMPLICATIONS
BEHIND THE GENERAL SCHEME OF THE SOCIAL SECURITY ACT.  THE CONTENTION
IS THAT ENFORCEMENT OF PRIORITIES OVER STATE UNEMPLOYMENT COMPENSATION
TAX CLAIMS WOULD WEAKEN STATE UNEMPLOYMENT COMPENSATION FUNDS AND THUS
TEND TO FRUSTRATE THE MANIFEST PURPOSE OF CONGRESS TO FOSTER, IN THE
NATIONAL INTEREST, SOUND FINANCIAL AND STABLE STATE UNEMPLOYMENT
COMPENSATION SYSTEMS.  THE STATE POINTS TO THE FOLLOWING AS SHOWING
CONGRESS' INTEREST IN STATE SYSTEMS.  TITLE 9 OF THE SOCIAL SECURITY
ACT CONTAINS PROVISIONS INTENDED TO INDUCE STATES TO SET UP SOUND
UNEMPLOYMENT COMPENSATION IN ACCORDANCE WITH CONGRESSIONALLY PRESCRIBED
STANDARDS.  TO THIS END STATE SYSTEMS THAT MEET THESE STANDARDS ARE
PERMITTED TO BUILD UP THEIR OWN FUNDS BY COLLECTION FROM EMPLOYERS
WITHIN THE STATE OF 90% OF THE TAX THOSE EMPLOYERS WOULD OTHERWISE HAVE
TO PAY TO THE FEDERAL GOVERNMENT.  STATE FUNDS MUST BE PAID INTO THE
UNITED STATES TREASURY, TO BE CREDITED TO A SPECIAL FUND, AND CAN BE
WITHDRAWN ONLY FOR PAYING UNEMPLOYMENT BENEFITS.  FURTHERMORE, THE
FEDERAL PORTION OF UNEMPLOYMENT COMPENSATION TAXES CAN BE USED TO HELP
STATES PAY ADMINISTRATIVE EXPENSES.  AND CONGRESS, SINCE PASSAGE OF THE
ORIGINAL ACT, HAS ENACTED LEGISLATION GUARANTEEING THE SOLVENCY OF
STATE FUNDS.  58 STAT. 790.  ALL OF THESE FACTS, AND SOME OTHERS TO
WHICH THE STATE REFERS, ARE SAID TO SHOW THAT THE PARAMOUNT PURPOSE OF
THE SOCIAL SECURITY LEGISLATION WAS TO TREAT UNEMPLOYMENT RELIEF AS A
PROBLEM TO BE SOLVED BY THE FEDERAL GOVERNMENT BY ITS ASSUMPTION OF THE
PRIMARY BURDEN OF MAKING STATE SYSTEMS A SUCCESS. 

WE AGREE THAT THE SOCIAL SECURITY LEGISLATION PROVIDES A METHOD FOR
ACCOMPLISHING STATE AND FEDERAL UNEMPLOYMENT RELIEF SYSTEMS, INTEGRATED
IN PLAN, FUNCTION, AND PURPOSE, AND THAT SOUND STATE SYSTEMS ARE
ESSENTIAL TO COMPLETE SUCCESS OF THE CONGRESSIONAL PLAN.  BUT WE CANNOT
AGREE THAT CONGRESS THEREBY INTENDED IN EFFECT TO AMEND SEC. 3466, BY
MAKING ITS PRIORITY PROVISIONS INAPPLICABLE TO STATE UNEMPLOYMENT TAX
CLAIMS.  FOR WHILE THE STATE AND FEDERAL GOVERNMENTS WERE TO COOPERATE,
THE UNDERLYING PHILOSOPHY OF THE FEDERAL ACT WAS TO KEEP THE STATE AND
FEDERAL SYSTEMS SEPARATELY ADMINISTERED.  THE ACT NOWHERE INDICATES A
PURPOSE TO TREAT A STATE UNEMPLOYMENT CLAIM AS THE STATE HERE URGES US
TO TREAT ITS CLAIM - "TANTAMOUNT TO A CLAIM OF THE UNITED STATES." 

FURTHERMORE, SECS. 807(C) AND 905(B) OF THE FEDERAL ACT, AND THE
PROVISIONS THEY INCORPORATED BY REFERENCE, MADE APPLICABLE TO SOCIAL
SECURITY TAXES ALL OTHER PROVISIONS OF LAW RELATING TO THE ASSESSMENT
AND COLLECTION OF OTHER TAXES UNLESS SUCH OTHER REMEDIES ARE
INCONSISTENT WITH THE SOCIAL SECURITY ACT.  WHILE THERE IS NO EVIDENCE
THAT CONGRESS IN THESE SECTIONS HAD SEC. 3466 SPECIFICALLY IN MIND,
THESE PROVISIONS INDICATE THAT CONGRESS INTENDED, SO FAR AS
PRACTICABLE, TO APPLY TO SOCIAL SECURITY TAXES ALL OF THE REMEDIES
AVAILABLE TO THE FEDERAL GOVERNMENT IN COLLECTING OTHER TAXES.  SECTION
3466 PROVIDES ONE OF THESE REMEDIES.  SINCE, AS HAS BEEN INDICATED, IT
IS NOT INCONSISTENT WITH EITHER THE EXPRESS LANGUAGE OR PURPOSE OF THE
SOCIAL SECURITY ACT, IT MUST BE APPLIED HERE. 

PREVIOUS DECISIONS OF THIS COURT RELIED ON BY THE STATE DO NOT
SUPPORT ITS CONTENTION.  THOSE CASES, INSOFAR AS THEY HELD THAT SEC.
3466 DID NOT GIVE THE UNITED STATES PRIORITY OVER CERTAIN OTHER TYPES
OF CLAIMS, DID SO BECAUSE LATER ACTS WERE FOUND TO CONTAIN PROVISIONS
PLAINLY INCONSISTENT WITH UNITED STATES PRIORITY.  COOK COUNTY NATIONAL
BANK V. UNITED STATES, 107 U.S. 445; UNITED STATES V. GUARANTY TRUST
CO., 280 U.S. 478.  CF. UNITED STATES V. EMORY, 314 U.S. 423, 431-432. 
WE FIND NO SUCH INCONSISTENCY HERE.  AND "ONLY THE PLAINEST
INCONSISTENCY WOULD WARRANT OUR FINDING AN IMPLIED EXCEPTION TO THE
OPERATION OF SO CLEAR A COMMAND AS THAT OF SEC. 3466."  UNITED STATES
V. EMORY, SUPRA, 433.  AFFIRMED. 

FN1  A SMALL PART OF THE GOVERNMENT'S CLAIM WAS FOR CAPITAL STOCK
TAXES, BUT THIS FACT IS OF NO SIGNIFICANCE HERE. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















EL DORADO OIL WORKS V. U.S., 328 U.S. 12 


NO. 428.  ARGUED JANUARY 30 AND MARCH 26, 1946.  - DECIDED APRIL 22,
1946.  - 59 F.SUPP.  738, AFFIRMED. 


A SHIPPER WHO RENTED TANK CARS FOR TRANSPORTING ITS PRODUCTS IN
INTERSTATE COMMERCE BROUGHT SUIT IN THE DISTRICT COURT AGAINST THE CAR
COMPANY FOR THE AMOUNT BY WHICH ALLOWANCES RECEIVED BY THE CAR COMPANY
FROM CARRIERS FOR USE OF THE CARS EXCEEDED THE RENTAL.  THIS COURT, IN
GENERAL AMERICAN TANK CAR CORP. V. EL DORADO TERMINAL CO., 308 U.S.
422, ORDERED THE DISTRICT COURT TO STAY ITS HAND UNTIL THE INTERSTATE
COMMERCE COMMISSION COULD DETERMINE THE ADMINISTRATIVE PROBLEMS
INVOLVED.  IN RESPONSE TO A PETITION OF THE SHIPPER, THE COMMISSION
FOUND THAT AN ALLOWANCE TO THE SHIPPER IN EXCESS OF THE RENTAL WOULD BE
UNJUST, UNREASONABLE AND UNLAWFUL, AND ORDERED THE PROCEEDING BEFORE IT
DISCONTINUED.  HELD: 

1.  THE ACTION OF THE COMMISSION WAS A REVIEWABLE "ORDER," AND A SUIT
TO ENJOIN OR SET IT ASIDE WAS WITHIN THE JURISDICTION OF A DISTRICT
COURT OF THREE JUDGES.  28 U.S.C. SECS. 41(28), 47.  P. 18. 

2.  THE COMMISSION'S DETERMINATION AS TO WHAT CONSTITUTED A JUST AND
REASONABLE ALLOWANCE TO THE SHIPPER WAS VALID ALTHOUGH IT RELATED TO
PAST TRANSACTIONS.  P. 19. 

(A)  THE COMMISSION MADE ITS DETERMINATION, AS TO THE LAWFULNESS OF
THE PAST PRACTICES, UPON THE APPLICATION OF THE SHIPPER.  P. 19. 

(B)  THE DETERMINATION OF THE COMMISSION WAS AUTHORIZED BY THE
DECISION OF THIS COURT IN THE TANK CAR CASE, AS WELL AS BY THE
INTERSTATE COMMERCE ACT.  P. 19. 

(C)  THE COMMISSION WAS NOT REQUIRED IN THIS PROCEEDING TO ESTABLISH
UNIFORM RATES FOR THE FUTURE FOR ALL SHIPPERS.  P. 20. 

3.  THE FINDING OF THE COMMISSION THAT THE ALLOWANCES TO THIS SHIPPER
WERE UNJUST AND UNREASONABLE WAS BASED ON UNIFORM TREATMENT OF ALL
SHIPPER-LESSEES, WHOM THE COMMISSION WAS JUSTIFIED IN TREATING AS A
CLASS APART.  P. 20. 

4.  IT IS THE DUTY OF THE COMMISSION TO ABOLISH ALL PRACTICES WHICH
RESULT IN REBATES OR PREFERENCES.  P. 21. 

5.  THE FACT THAT THE FREIGHT WAS PAID BY THE CONSIGNEES AT THE
REGULAR RATE DOES NOT PRECLUDE THE FINDING THAT THE PRACTICES HERE IN
QUESTION INVOLVED REBATES OR PREFERENCES TO THE SHIPPER WHICH ARE
PROHIBITED BY THE INTERSTATE COMMERCE ACT AND THE ELKINS ACT.  P. 22. 

EL DORADO OIL WORKS ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

APPELLANTS' SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION, 258 I.C.C. 371, WAS DISMISSED BY A DISTRICT COURT OF THREE
JUDGES FOR WANT OF JURISDICTION, 59 F.SUPP.  738, AND APPELLANTS
APPEALED TO THIS COURT.  AFFIRMED ON OTHER GROUNDS, P. 22. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APPELLANTS FILED A COMPLAINT IN THE DISTRICT COURT UNDER 28 U.S.C.
41(28), CHALLENGING ACTION TAKEN BY THE INTERSTATE COMMERCE COMMISSION
ALLEGEDLY PURSUANT TO INSTRUCTIONS CONTAINED IN AN EARLIER OPINION
RENDERED BY THIS COURT IN CONNECTION WITH THESE PROCEEDINGS.  308 U.S.
422.  THE DISTRICT COURT DISMISSED THE COMPLAINT FOR WANT OF
JURISDICTION ON THE GROUND THAT THE COMMISSION'S ACTION DID NOT AMOUNT
TO A REVIEWABLE "ORDER" WITHIN THE MEANING OF 28 U.S.C. 41(28).  THE
CASE IS BEFORE US ON DIRECT APPEAL.  28 U.S.C. 345. 

THE FOLLOWING FACTS CONSTITUTE THE BACKGROUND OF THIS PROCEEDING: 

EL DORADO OIL WORKS, ONE OF THE APPELLANTS, PROCESSES, SELLS, AND
SHIPS COCONUT OIL IN INTERSTATE COMMERCE.  SPECIAL KINDS OF TANK CARS
ARE NECESSARY FOR THAT DISTRIBUTION.  THE APPELLEE, GENERAL AMERICAN
TANK CAR CORPORATION,  FN1  OWNS TANK CARS WHICH IT RENTS AND LEASES TO
VARIOUS SHIPPERS.  IN 1933, OIL WORKS MADE A CONTRACT WITH THE CAR
COMPANY TO RENT, FOR A PERIOD OF THREE YEARS, FIFTY TANK CARS AT $27.50
PER CAR PER MONTH, AND SUCH ADDITIONAL CARS AS IT MIGHT NEED AT $30 PER
CAR PER MONTH.  THE OUTSTANDING RAILROAD TARIFFS, PRESCRIBING PAYMENT
BY THE RAILROAD OF 1 1/2[ PER MILE FOR THE USE OF TANK CARS, CONTAINED
RULES WHICH PROVIDED THAT THE MILEAGE WOULD BE PAID ONLY TO THE "PARTY"
WHOSE "REPORTING MARKS" APPEARED ON THE CARS.  DURING PART OF THE
RENTAL PERIOD HERE IN QUESTION THE RULES PROVIDED THAT "MILEAGE FOR THE
USE OF CARS OF PRIVATE OWNERSHIP WILL BE PAID  ...  ONLY TO THE CAR
OWNER - NOT TO A LESSEE."  SINCE UNDER THE AGREEMENT THE CARS WERE TO
BEAR THE "REPORTING MARKS" OF THE CAR COMPANY AND NOT THE OIL WORKS,
AND SINCE OIL WORKS WAS A LESSEE, NO TARIFFS AUTHORIZED RAILROAD
MILEAGE PAYMENTS TO OIL WORKS.  NEVERTHELESS, UNDER THE AGREEMENT OIL
WORKS WAS TO RECEIVE THE FULL MILEAGE ALLOWANCE PRESCRIBED BY THE
TARIFFS.  THE RENT OIL WORKS WAS TO PAY TO CAR COMPANY WAS TO BE TAKEN
OUT BY CAR COMPANY FROM THE MILEAGE ALLOWANCES IT RECEIVED FROM THE
RAILROADS AND THE BALANCE WAS TO BE PAID BY IT TO OIL WORKS.  THE
RAILROAD PAYMENTS PROVED TO BE GREATLY IN EXCESS OF THE RENTAL
OBLIGATIONS, AND CAR COMPANY REGULARLY PAID THE DIFFERENCE TO OIL
WORKS, UNTIL JULY 1, 1934. 

JULY 2, 1934, THE INTERSTATE COMMERCE COMMISSION, AFTER AN EXHAUSTIVE
INVESTIGATION, HANDED DOWN ITS FINDINGS, OPINION, AND CONCLUSION IN USE
OF PRIVATELY OWNED REFRIGERATOR CARS, 201 I.C.C. 323.  IT THERE DREW A
DISTINCTION BETWEEN CAR OWNERS AS A CLASS AND CAR RENTERS AS A CLASS. 
IT FOUND THAT CAR OWNERS MUST HAVE SUFFICIENT RENTAL ALLOWANCES,
WHETHER THEY RENTED TO RAILROADS OR TO SHIPPERS, TO PAY A REASONABLE
RETURN ON INVESTMENT, TAKING INTO CONSIDERATION COST OF MAINTENANCE,
IDLE CARS, ETC.  ON THE OTHER HAND THE COMMISSION FOUND THAT CAR
RENTERS HAD NO SUCH FIXED COSTS.  THE COMMISSION'S CONCLUSION WAS THAT
COSTS OF RENTED CARS TO A SHIPPER, INCLUDING RENT AND INCIDENTALS, WAS
THE ONLY ALLOWANCE THE SHIPPER-LESSEE SHOULD RECEIVE FROM A RAILROAD,
DIRECTLY OR INDIRECTLY, AND THAT IF HE RECEIVES MORE, THE COST OF
TRANSPORTATION TO HIM WOULD BE LESS THAN THE COST OF TRANSPORTATION TO
SHIPPERS GENERALLY, ESPECIALLY THOSE WHO USE CARS FURNISHED BY THE
CARRIERS.  TO MAKE THE RAILROAD PAY MORE FOR USE OF A CAR RENTED BY A
SHIPPER THAN THE RENT HE HAD TO PAY, WAS, ACCORDING TO THE COMMISSION,
A VIOLATION OF SEC. 15(13) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C.
15(13), IN THAT IT REQUIRED THE RAILROAD TO PAY MORE FOR THE CAR THAN
WAS "JUST AND REASONABLE."  THE COMMISSION WAS OF THE OPINION THAT
REFUNDS OF CAR MILEAGE IN EXCESS OF THE RENT CHARGED THE SHIPPER-LESSEE
WAS THE EQUIVALENT OF AN UNLAWFUL CONCESSION OR REBATE, PROHIBITED BY
THE ELKINS ACT.  WHILE THE COMMISSION'S FINDINGS WERE LIMITED TO
REFRIGERATOR CARS, IT STATED THAT "THE GENERAL PRINCIPLES ENUNCIATED
APPLY EQUALLY TO ALL OTHER TYPES OF PRIVATE CARS."  ID. AT 382. 

AFTER THE COMMISSION'S DECISION IN THE REFRIGERATOR CASE, THE CAR
COMPANY DECLINED TO PAY OVER TO OIL WORKS ANY PART OF THE EXCESS
MILEAGE.  IN 1935 EL DORADO TERMINAL COMPANY, ONE OF THE APPELLANTS
ACTING AS ASSIGNEE OF OIL WORKS, BROUGHT SUIT AGAINST THE CAR COMPANY
TO RECOVER ACCRUED EXCESS MILEAGE EARNINGS.  CAR COMPANY DEFENDED ON
THE GROUND THAT FURTHER REFUNDS WOULD VIOLATE INTERSTATE COMMERCE
LEGISLATION, PARTICULARLY THE ELKINS ACT.  49 U.S.C. 41.  THE DISTRICT
JUDGE FOUND THAT THE CONTRACT WAS IN VIOLATION OF THE ELKINS ACT, AND
RENDERED JUDGMENT FOR THE CAR COMPANY.  THE CIRCUIT COURT OF APPEALS
REVERSED.  104 F.2D 903.  THE CAR COMPANY FILED A PETITION FOR
CERTIORARI WHICH WAS SUPPORTED HERE BY THE SOLICITOR GENERAL AND THE
INTERSTATE COMMERCE COMMISSION.  THEIR CLAIM THAT THE CIRCUIT COURT OF
APPEALS ERRED RESTED ON THE FOLLOWING MAJOR GROUNDS:  (1) THE
RAILROAD'S PAYMENTS TO CAR COMPANY, WHICH PROVIDED NO FACILITIES TO THE
RAILROAD, WERE UNAUTHORIZED; (2) SINCE NO PUBLISHED TARIFF AUTHORIZED
PAYMENTS TO A SHIPPER-LESSEE SUCH AS OIL WORKS, ITS ONLY RECOURSE TO
COLLECT ALLOWANCES FOR THE CARS IT HAD FURNISHED WAS TO INSTITUTE
PROCEEDINGS BEFORE THE COMMISSION FOR RECOVERY OF A REASONABLE
ALLOWANCE; (3) PAYMENT TO OIL WORKS OF EXCESS MILEAGE EARNINGS RECEIVED
BY CAR COMPANY WOULD VIOLATE THE ELKINS ACT.  IN REPLY TO THE
COMMISSION'S BRIEF URGING CERTIORARI, OIL WORKS CONTENDED THAT THE CASE
DID NOT RAISE A QUESTION "WITHIN THE ADMINISTRATIVE OR PRIMARY CONTROL
OF THE COMMISSION." 

WE GRANTED CERTIORARI AND REVERSED THE JUDGMENT OF THE CIRCUIT COURT
OF APPEALS.  308 U.S. 422.  WHILE WE REJECTED THE COMMISSION'S
CONTENTION THAT THE DISTRICT COURT HAD NO JURISDICTION TO HEAR THE
CASE, WE ACCEPTED ITS CONTENTION THAT DETERMINATION OF THE VALIDITY OF
THE CHALLENGED PAST PRACTICES WAS FOR THE COMMISSION.  WE POINTED OUT
THAT THE TARIFFS APPROVED BY THE COMMISSION FIXED NO UNIFORM RATE TO BE
PAID BY RAILROADS TO THE SHIPPER DIRECTLY FOR THE USE OF CARS
ORIGINALLY RENTED BY THE SHIPPER.  WE POINTED OUT FURTHER THAT OIL
WORKS HAD NEVER "APPLIED TO THE COMMISSION FOR ITS DECISION AS TO WHAT
WAS A PROPER ALLOWANCE FOR THE CARS FURNISHED BY IT."  WE SAID THAT THE
OIL WORKS WAS "ENTITLED, UNDER THE PLAIN TERMS OF SEC. 15(13)(OF THE
INTERSTATE COMMERCE ACT), TO BE PAID BY THE CARRIER A JUST AND
REASONABLE ALLOWANCE" FOR PROVIDING THE CARS.  THE OPINION STATED THAT
QUESTIONS SUCH AS WHETHER THE SHIPPER WAS "REAPING A SUBSTANTIAL PROFIT
FROM THE USE OF THE CARS," AND WHETHER, ON THE ONE HAND, THE
"ALLOWANCES AND PRACTICES" WERE LAWFUL AND REASONABLE OR, ON THE OTHER
HAND, VIOLATED THE ELKINS ACT, WERE ALL ADMINISTRATIVE PROBLEMS CALLING
FOR INVESTIGATION AND DETERMINATION BY THE COMMISSION.  THE DISTRICT
COURT WAS ACCORDINGLY ORDERED TO STAY ITS HAND SO THAT THE COMMISSION
COULD RENDER ITS DECISION. 

ON REMAND OIL WORKS AND TERMINAL COMPANY FILED A PETITION WITH THE
COMMISSION PRAYING THAT IT HOLD HEARINGS AND ENTER AN ORDER TO THE
EFFECT THAT CAR COMPANY COULD PAY THE MILEAGE EARNINGS TO OIL WORKS
WITHOUT VIOLATING THE ELKINS ACT AND THAT SUCH PAYMENT WOULD NOT
CONSTITUTE A REBATE OR CONCESSION.  THE COMMISSION FOUND THAT A JUST
AND REASONABLE ALLOWANCE TO OIL WORKS WOULD BE THE COST INCURRED BY IT
IN FURNISHING THE CARS, NAMELY THE MONTHLY RENTAL TO THE CAR COMPANY,
THAT ANY AMOUNT IN EXCESS OF THAT WOULD BE UNJUST AND UNREASONABLE IN
VIOLATION OF SEC. 15(13) AND WOULD "CONSTITUTE A REBATE AND
DISCRIMINATION AND INVOLVE A DEPARTURE FROM THE TARIFF RULES
APPLICABLE, PROHIBITED BY SECTION 1 OF THE ELKINS ACT, AND SECTION 6(7)
OF THE INTERSTATE COMMERCE ACT  ..."  FN2  THE COMMISSION FURTHER
ORDERED THAT THE PROCEEDING BEFORE IT BE DISCONTINUED.  ON THIS APPEAL
BOTH SIDES ARGUED THE JURISDICTIONAL QUESTION AS WELL AS QUESTIONS
GOING TO THE MERITS. 

BEFORE WE REACH THE MERITS OF THE CONTROVERSY WE MUST AT THE OUTSET
BRIEFLY DISPOSE OF THE JURISDICTIONAL QUESTION.  AS THE FACTS ALREADY
STATED REVEAL, THE COMMISSION'S FINDINGS AND DETERMINATION IF UPHELD
CONSTITUTE FAR MORE THAN AN "ABSTRACT DECLARATION."  ROCHESTER
TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 143.  "LEGAL
CONSEQUENCES" (ID. AT 132) WOULD FOLLOW WHICH WOULD FINALLY FIX A
"RIGHT OR OBLIGATION" (ID. AT 131) ON APPELLANTS' PART.  THRSE FINDINGS
ARE MORE THAN A MERE "STAGE IN AN INCOMPLETE PROCESS OF ADMINISTRATIVE
ADJUDICATION," FOR THE COMMISSION HERE HAS DISCONTINUED FURTHER
PROCEEDINGS.  ID. AT 143.  WE, THEREFORE, THINK THAT THE COMMISSION'S
ACTION FALLS WITHIN THE CLASS OF "ORDERS" WHICH ROCHESTER TELEPHONE
CORP. V. UNITED STATES, SUPRA, HELD TO BE REVIEWABLE BY A DISTRICT
COURT OF THREE JUDGES.  THE DISTRICT COURT ERRED IN DISMISSING THE
COMPLAINT FOR WANT OF JURISDICTION. 

ON THE MERITS, APPELLANTS' MAJOR CONTENTION IS THAT THE INTERSTATE
COMMERCE ACT AND OUR EARLIER OPINION IN THIS CASE DO NOT AUTHORIZE THE
COMMISSION TO DETERMINE, AS IT HERE HAS DONE, THE JUSTICE AND
REASONABLENESS OF MILEAGE ALLOWANCES WHICH APPELLANTS WERE TO RECEIVE
ON PAST TRANSACTIONS.  THE CONTENTION IS THAT BOTH OUR OPINION AND THE
ACT AUTHORIZE THE COMMISSION TO DO NO MORE THAN DETERMINE WHAT UNIFORM
ALLOWANCE SHIPPERS AS A CLASS WOULD BE PERMITTED TO CHARGE IN THE
FUTURE.  IN PART THE ARGUMENT IS THAT INSOFAR AS THE ORDER IS BASED ON
A TREATMENT OF SHIPPER-LESSEES AS A CLASS APART, AND ON A LIMITATION OF
THEIR ALLOWANCE TO THE COST TO THEM OF THE CARS THEY FURNISH, THE ORDER
IS INVALID, IN THAT IT NEITHER RESTS ON, NOR BRINGS ABOUT, A UNIFORM
RATE TO ALL SHIPPERS, OR EVEN ALL SHIPPERLESSEES.  WE CANNOT AGREE WITH
THE ABOVE CONTENTIONS. 

FIRST, IT MUST BE NOTED THAT THE COMMISSION MADE ITS DETERMINATION AS
TO THE LAWFULNESS OF THESE PAST PRACTICES ON THE BASIS OF APPELLANTS'
OWN APPLICATION, ASKING THE COMMISSION TO DO SO. SECOND, OUR PREVIOUS
OPINION, AS WELL AS THE INTERSTATE COMMERCE ACT, AUTHORIZED THE
COMMISSION TO MAKE THIS DETERMINATION.  THE QUESTION BEFORE US WHEN
THIS CASE WAS FIRST HERE DID NOT RELATE TO FUTURE BUT TO PAST
ALLOWANCES.  RELYING ON PAST DECISIONS, WE HELD THAT THE
"REASONABLENESS AND LEGALITY" OF THE PAST DEALINGS HERE INVOLVED WERE
MATTERS WHICH CONGRESS HAD ENTRUSTED TO THE COMMISSION.  SEE E.G. GREAT
NORTHERN R. CO. V. MERCHANTS ELEVATOR CO., 259 U.S. 285, 291, AND OTHER
CASES CITED IN OUR PREVIOUS OPINION.  AND WE REJECTED APPELLANTS'
PETITION FOR REHEARING WHICH PRESENTED SUBSTANTIALLY THE ARGUMENT NOW
REPEATED, NAMELY THAT ANY ORDER THE COMMISSION MIGHT MAKE "COULD ONLY
BE EFFECTIVE AS TO THE FUTURE," THAT THE COMMISSION'S DETERMINATION
"COULD NOT AFFECT THE CONTRACT  ...  IN THIS CASE," THAT THE
COMMISSION'S ACTION WOULD BE "FUTILE," AND THAT CONSEQUENTLY OUR
JUDGMENT AND OPINION WOULD PROVIDE NO "GUIDANCE" FOR THE DISTRICT
COURT.  OUR FIRST OPINION, BUTTRESSED BY OUR REJECTION OF THE MOTION
FOR REHEARING, WAS A PLAIN AUTHORIZATION FOR THE COMMISSION TO
DETERMINE THE JUSTICE AND REASONABLENESS OF THE PAST ALLOWANCES TO THIS
SHIPPER.  THE COMMISSION DID NOT HAVE TO ESTABLISH FUTURE UNIFORM RATES
TO DETERMINE THE QUESTIONS WE SENT TO IT.  CONSEQUENTLY, INSOFAR AS
APPELLANTS' ARGUMENT IS THAT THE COMMISSION FAILED TO TREAT ALL
SHIPPERS OR ALL SHIPPER-LESSEES UNIFORMLY BECAUSE IT DID NOT FIX FUTURE
UNIFORM RATES, THE ANSWER IS THAT IT WAS NOT REQUIRED TO DO SO. 

INSOFAR AS APPELLANTS' ARGUMENT AS TO LACK OF UNIFORM TREATMENT OF
SHIPPERS AND SHIPPER-LESSEES SEEKS TO ATTACK THE BASIS OF THE
COMMISSION'S FINDING THAT THE PAST ALLOWANCES HERE WERE UNJUST AND
UNREASONABLE, IT ALSO LACKS MERIT.  WE THINK THE COMMISSION'S FINDING
WAS BASED ON A UNIFORM TREATMENT OF ALL SHIPPER-LESSEES.  WHILE IT IS
TRUE, AS APPELLANTS CONTEND, THAT UNDER THE COMMISSION'S RULE DIFFERENT
SHIPPER-LESSEES MIGHT RECEIVE DIFFERENT ALLOWANCES, THE RULE IS UNIFORM
IN THAT IT PERMITS NO SHIPPERLESSEE TO RECEIVE ALLOWANCES EXCEEDING THE
RENTAL HE PAYS.  ALL SHIPPER-LESSEES ARE PROHIBITED FROM MAKING PROFITS
AT THE EXPENSE OF THE RAILROADS ON CARS RENTED TO TRANSPORT GOODS IN
INTERSTATE COMMERCE.  SINCE THE FACTS BEFORE THE COMMISSION WERE ENOUGH
TO ENABLE IT TO FIND THAT SUCH PROFITS AMOUNT TO REBATES TO SHIPPER
LESSEES WHICH RESULT IN A DISCRIMINATION AGAINST SHIPPERS THAT OWN CARS
OR USE CARS FURNISHED BY THE RAILROAD, THE COMMISSION WAS JUSTIFIED IN
TREATING SHIPPER-LESSEES AS A CLASS APART.  AS THE COMMISSION POINTED
OUT IN ITS REFRIGERATOR OPINION, THE HISTORY OF RAILROAD PRACTICES
SHOWS THAT REBATES, CONCESSIONS, AND FAVORITISM HAVE FREQUENTLY GROWN
OUT OF THE PRIVATE CAR SYSTEM.  NOTWITHSTANDING THE VERY GREAT
TRANSPORTATION SERVICE SUPPLIED BY PRIVATE CARS, DESIGNED AND EQUIPPED
TO MEET SPECIAL NEEDS, THE COMMISSION ACTS WITHIN ITS POWER WHEN IT
ATTEMPTS TO REGULATE THEIR USE SO AS TO PUT A STOP TO EXISTING
PROHIBITED EVILS.  IT MUST TEST VIOLATIONS OF THE INTERSTATE COMMERCE
ACT BY RESULTS.  UNION PACIFIC R. CO. V. UNITED STATES, 313 U.S. 450,
462.  IT IS THE DUTY OF THE COMMISSION TO NULLIFY PRACTICES THAT RESULT
IN REBATES OR PREFERENCES, "WHATEVER FORM THEY TAKE AND IN WHATSOEVER
GUISE THEY MAY APPEAR," O'KEEFE V. UNITED STATES, 240 U.S. 294, 297. 
FN3    THE APPELLANTS' REMAINING CONTENTIONS CHALLENGE THE SUFFICIENCY
OF THE EVIDENCE.  THEY REST PRIMARILY ON THE PREMISE THAT THE
COMMISSION LACKED AUTHORITY TO DETERMINE WHAT WE HAD DIRECTED IT TO
FIND.  INSOFAR AS THESE CONTENTIONS REST ON THAT PREMISE, THEY HAVE
BEEN DISPOSED OF BY WHAT WE HAVE ALREADY SAID.  THE ONLY CONTENTION AS
TO ALLEGED INSUFFICIENCY OF EVIDENCE THAT REQUIRES FURTHER ATTENTION IS
THAT THERE COULD BE NO FINDING THAT THE PRACTICES HERE INVOLVED
RESULTED IN REBATES OR CONCESSIONS TO OIL WORKS, SINCE THE FREIGHT ON
THE OILS TRANSPORTED WAS NOT PAID BY IT, BUT WAS ALLEGEDLY ALWAYS PAID
BY THE CONSIGNEES AND AT THE REGULAR RATE.  OIL WORKS, HOWEVER, WAS A
SHIPPER WHO SUPPLIED CARS TO BE USED AS FACILITIES FOR TRANSPORTATION. 
FOR SUPPLYING THESE CARS, IT COULD NOT CONSISTENTLY WITH SEC. 15(13)
RECEIVE FROM THE RAILROAD, DIRECTLY OR INDIRECTLY, MORE THAN A "JUST
AND REASONABLE" ALLOWANCE.  THIS ALLOWANCE WAS "IN RESPECT TO
TRANSPORTATION."  SEE UNION PACIFIC R. CO. V. UNITED STATES, SUPRA,
462.  PAYMENT BY THE RAILROAD OF MORE THAN THE JUST VALUE OF THE
SERVICES INEVITABLY RESULTED IN ITS CARRYING OIL WORKS' PRODUCT AT LESS
THAN THE REGULAR FREIGHT RATE, EVEN THOUGH IT COLLECTED THE FULL RATE
FROM THE CONSIGNEES.  THE REDUCED RATE AT WHICH OIL WORKS COULD THUS
HAVE ITS PRODUCTS TRANSPORTED JUSTIFIED THE COMMISSION'S FINDING THAT
OIL WORKS GOT A CONCESSION AND AN ADVANTAGE OVER OTHER SHIPPERS WHO
MADE NO SUCH PROFITS ON TANK CARS.  WHETHER OIL WORKS OR ITS CONSIGNEES
PAID THE FREIGHT MAKES NO DIFFERENCE.  CF. ELGIN, J. & E.R. CO. V.
UNITED STATES, 253 F. 907, 911.  A PRACTICE WHICH ACCOMPLISHES THIS
RESULT IS PROHIBITED BY THE INTERSTATE COMMERCE ACT AND THE ELKINS
ACT. 

THE JUDGMENT DISMISSING THE COMPLAINT IS AFFIRMED, BUT ON THE GROUND
THAT THE COMMISSION'S ORDER IS VALID, AND THAT THE APPELLANTS WERE
CONSEQUENTLY NOT ENTITLED TO THE RELIEF PRAYED FOR.  AFFIRMED. 

FN1  GENERAL AMERICAN TRANSPORTATION CORPORATION HAS BECOME THE
SUCCESSOR OF THE GENERAL AMERICAN TANK CAR CORPORATION. 

FN2  THE COMMISSION DID NOT RULE THAT A SHIPPER-LESSEE WOULD ALWAYS
BE ENTITLED TO ALLOWANCES EQUAL TO THE COST TO HIM OF THE CARS HE
RENTED.  THE COMMISSION'S OPINION MAKES IT CLEAR THAT A SHIPPER-LESSEE
IS ONLY ENTITLED TO RECEIVE A JUST AND REASONABLE ALLOWANCE FOR CARS
WHILE THEY ARE ACTUALLY USED BY THE RAILROAD, EVEN THOUGH THIS
ALLOWANCE MIGHT BE LESS THAN THE CAR RENT PAID BY THE SHIPPER.  ON THAT
SUBJECT THE COMMISSION SAID: 

"IN ADMINISTERING THE PROVISIONS OF SECTION 15(13) WE HAVE
CONSISTENTLY ADHERED TO TWO PRINCIPLES, BEARING IN MIND THAT WE WERE TO
PRESCRIBE THE MAXIMUM AMOUNT WHICH THE CARRIER MIGHT PAY:  (1) THE
AMOUNT PAID SHOULD NOT BE MORE THAN WAS JUST AND REASONABLE FOR THE
SERVICE OR INSTRUMENTALITY FURNISHED, AND (2) THAT THE AMOUNT WHICH
MIGHT BE PAID SHOULD NOT EXCEED THE REASONABLE COST TO THE OWNER OF THE
GOODS OF PERFORMING THE SERVICE OR FURNISHING THE INSTRUMENTALITY
USED.  WHICHEVER OF THESE SUMS WAS THE LOWER MARKED THE MAXIMUM THE
CARRIER MIGHT PAY." 

HERE THE COMMISSION HAS APPLIED THESE UNIFORM CRITERIA IN SUCH A WAY
AS TO PERMIT THE SHIPPER-LESSEE TO RECEIVE AS MUCH AS THE FULL RENTAL
HE PAID.  WERE IT NOT FOR THESE PROCEEDINGS RESULTING FROM THE CAR
COMPANY'S REFUSAL TO CONTINUE PAYMENTS TO THE SHIPPER, THE RAILROAD
WOULD HAVE HAD TO PAY AS IT DID PAY 1 1/2[ PER MILE, WHICH PROVED FAR
IN EXCESS OF THE RENTAL.  IT MAY BE THAT IN OTHER CASES A JUST AND
REASONABLE RATE WOULD FALL BELOW THE RENTAL.  IT MAY BE THAT IN THIS
CASE THE RENTAL EXCEEDED WHAT WOULD BE A JUST AND REASONABLE ALLOWANCE
WITH RESPECT TO THE USE OF THE CARS BY THE RAILROAD.  BUT THIS WOULD
SERVE TO FURTHER REDUCE THE RATE TO WHICH APPELLANTS WERE ACTUALLY
ENTITLED; APPELLANTS, THEREFORE, HAVE NO INTEREST IN CHALLENGING THE
COMMISSION'S ORDER ON THIS POINT. 

FN3  APPELLANTS CONTEND THAT IF THE CAR RENTAL COST IS THE MAXIMUM
ALLOWABLE PAYMENT, THE MILEAGE PAYMENTS TO THE CAR COMPANY WERE
UNLAWFUL.  THAT THESE PAYMENTS BY THE RAILROAD TO OIL WORKS WERE
"APPARENTLY" UNLAWFUL AND RECOVERABLE BY THE RAILROAD, WAS THE POSITION
TAKEN BY THE COMMISSION IN ITS BRIEF FILED WHEN THIS CASE WAS FIRST
BEFORE US.  AND IN OUR OPINION WE STATED THAT SINCE THE SHIPPER, NOT
THE CAR COMPANY, HAD FURNISHED THE CARS TO THE RAILROAD, "IT SEEMS
CLEAR THAT NO RULE OR REGULATION OF THE CARRIER MAY PROVIDE FOR THE
PAYMENT OF SUCH ALLOWANCE TO ANY OTHER PERSON" EXCEPT OIL WORKS.  BUT
APPELLANTS CAN NOT BENEFIT FROM THE UNLAWFULNESS OF PAYMENTS TO THE CAR
COMPANY.  ON THE CONTRARY, SUCH A CONCLUSION WOULD STRENGTHEN THE
POSITION OF THE COMMISSION, NAMELY THAT A "JUST AND REASONABLE"
ALLOWANCE TO OIL WORKS MUST BE DETERMINED BY THE COMMISSION WITHOUT
REGARD TO THE MILEAGE PAYMENTS TO CAR COMPANY. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING IN PART. 

I DO NOT THINK IT SHOULD BE LEFT TO THE SHIPPER AND THE CAR OWNER TO
DETERMINE WHAT PORTION OF THE TARIFF PAID BY THE RAILROAD SHOULD BE
PAID TO THE SHIPPER.  BUT THAT IS EXACTLY WHAT THE COURT PERMITS WHEN
IT MEASURES THE SHIPPER'S ALLOWANCE BY THE AMOUNT OF RENTAL HE HAS
AGREED TO PAY THE CAR OWNER. 

AS COMMISSIONER SPLAWN POINTED OUT IN HIS DISSENT FROM THE OPINION OF
THE INTERSTATE COMMERCE COMMISSION (258 I.C.C. 371, 382-383), THE
COMMISSION IN FOLLOWING THIS COURSE FAILED TO COMPLY WITH OUR OPINION
IN GENERAL AMERICAN TANK CAR CORP. V. EL DORADO TERMINAL CO., 308 U.S.
422.  WE THERE SAID (PP. 429-430): 

"AS THE CIRCUIT COURT OF APPEALS HAS POINTED OUT, DIFFERENT SHIPPERS
MAY HAVE DIFFERING COSTS IN RESPECT OF PRIVATELY OWNED CARS FURNISHED
THE CARRIERS.  NEVERTHELESS, AS THE ALLOWANCES TO BE MADE THEM BY THE
CARRIERS FOR THE USE OF SUCH CARS MUST BE THE SUBJECT OF PUBLISHED
SCHEDULES, AND MUST BE JUST AND REASONABLE, THE COMMISSION IS COMPELLED
TO ASCERTAIN IN THE LIGHT OF PAST AND PRESENT EXPERIENCE A FAIR AND
REASONABLE COMPENSATION TO COVER SUCH COSTS AND PRESCRIBE A UNIFORM
RATE WHICH WILL REFLECT SUCH EXPERIENCE.  IT IS INEVITABLE THAT SOME
SHIPPERS MAY BE ABLE TO FURNISH FACILITIES AT LESS THAN THE PUBLISHED
ALLOWANCE WHILE OTHERS MAY FIND THEIR COSTS IN EXCESS OF IT.  THIS
FACT, HOWEVER, DOES NOT MILITATE AGAINST THE FIXING OF A UNIFORM RATE
APPLICABLE TO SHIPPERS PROPERLY CLASSIFIED BY THE COMMISSION."  FN1 

UNLESS THAT COURSE IS FOLLOWED, A SITUATION IS SANCTIONED IN WHICH
CONCESSIONS AND DISCRIMINATIONS CONDEMNED BY SEC. 1 OF THE ELKINS ACT,
32 STAT. 847, 34 STAT. 587, 49 U.S.C. SEC. 41, ARE LIKELY TO THRIVE. 

THERE IS A FURTHER OBJECTION TO THE COURSE WHICH THE COURT
SANCTIONS.  AS STATED BY COMMISSIONER SPLAWN IN HIS DISSENTING OPINION
(258 I.C.C. AT 384): 

"IT IS ELEMENTARY THAT THE FORM OF AN ALLOWANCE FOR THE USE OF CARS
MUST BE SUCH AS TO REFLECT THE EXTENT OF THE USE BY THE RAILROADS OF
THE FACILITIES FURNISHED.  WHENEVER WE HAVE HAD OCCASION TO DETERMINE
SUCH ALLOWANCES, WE HAVE PRESCRIBED EITHER PER DIEM OR MILEAGE
ALLOWANCES.  THE RAILROADS CANNOT BE HELD RESPONSIBLE FOR THE AMOUNT OF
RENT RESERVED BY THE CAR CORPORATION IN AN AGREEMENT WITH THE SHIPPER
AS THE CAR MAY BE LEFT IDLE DURING THE ENTIRE PERIOD.  THE CAR HAS
VALUE TO THE RAILROAD ONLY WHEN IT IS USED IN TRANSPORTING LADING AND
RESULTS IN THE PAYMENT OF FREIGHT CHARGES." 

ANY ALLOWANCE BASED ON COST TO THE SHIPPER RATHER THAN ON THE USE OF
THE FACILITY FURNISHED VIOLATES THAT PRINCIPLE. 

ONLY AN APPROPRIATE UNIFORM RATE WOULD OBVIATE BOTH OF THE OBJECTIONS
I HAVE MENTIONED.  FN2  I WOULD REMAND THE CASE TO THE COMMISSION SO
THAT IT COULD NOW DO WHAT, ACCORDING TO MY UNDERSTANDING, WE ORIGINALLY
INTENDED IT TO DO IN ACCORDANCE WITH THE REQUIREMENTS OF SEC. 15(13) OF
THE INTERSTATE COMMERCE ACT.  FN3 

FN1  SEC. 15(13) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
15(13), PROVIDES: 

"IF THE OWNER OF PROPERTY TRANSPORTED UNDER THIS CHAPTER DIRECTLY OR
INDIRECTLY RENDERS ANY SERVICE CONNECTED WITH SUCH TRANSPORTATION, OR
FURNISHES ANY INSTRUMENTALITY USED THEREIN, THE CHARGE AND ALLOWANCE
THEREFOR SHALL BE PUBLISHED IN TARIFFS OR SCHEDULES FILED IN THE MANNER
PROVIDED IN THIS CHAPTER AND SHALL BE NO MORE THAN IS JUST AND
REASONABLE, AND THE COMMISSION MAY, AFTER HEARING ON A COMPLAINT OR ON
ITS OWN INITIATIVE, DETERMINE WHAT IS A REASONABLE CHARGE AS THE
MAXIMUM TO BE PAID BY THE CARRIER OR CARRIERS FOR THE SERVICES SO
RENDERED OR FOR THE USE OF THE INSTRUMENTALITY SO FURNISHED, AND FIX
THE SAME BY APPROPRIATE ORDER, WHICH ORDER SHALL HAVE THE SAME FORCE
AND EFFECT AND BE ENFORCED IN LIKE MANNER AS THE ORDERS ABOVE PROVIDED
FOR UNDER THIS SECTION." 

FN2  THE COMMISSION'S FINDING WAS "THAT THE RENTAL PAID OR TO BE PAID
BY EL DORADO OIL WORKS TO GENERAL AMERICAN TANK CAR CORPORATION UNDER
THE TERMS OF THE LEASE AGREEMENT BETWEEN THOSE PARTIES, DATED SEPTEMBER
28, 1933, WAS THE ONLY COST INCURRED BY THE FORMER IN FURNISHING THE
TANK CARS IN WHICH ITS SHIPMENTS MOVED.  A JUST AND REASONABLE
ALLOWANCE AS A MAXIMUM TO HAVE BEEN PAID BY THE RESPONDENTS, RAIL
CARRIER OR CARRIERS, TO THE OIL WORKS FOR THE FURNISHING OF SUCH CARS
WOULD HAVE BEEN AN AMOUNT NOT TO EXCEED SUCH RENTAL.  SUCH AN AMOUNT
AND ALLOWANCE HAS BEEN PAID TO THE OIL WORKS THROUGH CREDITS MADE TO
THE ACCOUNT OF THE OIL WORKS BY THE TANK CAR CORPORATION." 

THERE ARE NO FACTS OF RECORD WHICH SHOW THE RELATIONSHIP BETWEEN THE
RENTAL PAID AND THE EXTENT OF THE USE BY THE RAILROADS OF THE
FACILITIES FURNISHED.  THE COMMISSION MADE NO FINDINGS IN THAT REGARD. 

WHETHER A UNIFORM RATE WHICH IS JUST AND REASONABLE WOULD BE GREATER
OR LESS THAN THE RENTAL IS WHOLLY CONJECTURAL ON THE PRESENT RECORD. 

FN3  NOTE 1, SUPRA.
..END :












BURTON-SUTTON OIL CO. V. COMM'R, 328 U.S. 25 


NO. 361.  ARGUED MARCH 25, 28, 1946.  - DECIDED APRIL 22, 1946.  - 150
F.2D 621, REVERSED. 


1.  THE TAXPAYER, AN OPERATING COMPANY FOR THE PRODUCTION OF OIL, WAS
ASSIGNEE OF A CONTRACT RELATING TO OIL LAND, WHEREBY THE GRANTEE AGREED
TO PAY TO THE GRANTOR 50% OF NET PROFITS FROM OPERATIONS.  THE CONTRACT
REQUIRED THE GRANTEE TO DRILL PROMPTLY, TO ACCOUNT FOR PRODUCTION, AND
TO SELL THE PRODUCTION TO THE GRANTOR ON SPECIFIED TERMS, IF THE
GRANTOR DESIRED TO PURCHASE.  THE LAND OWNER AND THE GRANTOR'S
TRANSFEROR RETAINED UNDERLYING AND OVERRIDING ROYALTIES.  HELD, UNDER
THE REVENUE ACTS OF 1934 AND 1936, THAT THE 50% PAYMENTS MADE BY THE
TAXPAYER TO THE GRANTOR WERE DEDUCTIBLE FROM THE TAXPAYER'S GROSS
INCOME.  PP. 26, 32. 

2.  THE CONTRACT HERE INVOLVED COULD NOT PROPERLY BE CONSTRUED AS A
SALE; IT WAS, RATHER, AN ASSIGNMENT OF THE RIGHT TO EXPLOIT THE
PROPERTY, WITH A RESERVATION IN THE ASSIGNOR OF AN ECONOMIC INTEREST IN
THE OIL.  P. 37. 

3.  OWNERSHIP OF A ROYALTY OR OTHER ECONOMIC INTEREST IN ADDITION TO
THE RIGHT TO NET PROFITS IS NOT ESSENTIAL TO MAKE THE POSSESSOR OF A
RIGHT TO A SHARE OF THE NET PROFIT THE OWNER OF AN ECONOMIC INTEREST IN
THE OIL IN PLACE.  P. 32. 

4.  HELVERING V. ELBE OIL LAND CO., 303 U.S. 372, DISTINGUISHED.  P.
36. 

BURTON-SUTTON OIL CO., INC. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

THE TAX COURT SUSTAINED THE COMMISSIONER'S DETERMINATION OF A
DEFICIENCY IN PETITIONER'S INCOME TAX.  3 T.C. 1187.  THE CIRCUIT COURT
OF APPEALS AFFIRMED.  150 F.2D 621.  THIS COURT GRANTED CERTIORARI. 
326 U.S. 755.  REVERSED, P. 37. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE TAXPAYER, THE PETITIONER HERE, IS THE OPERATING COMPANY FOR THE
PRODUCTION OF OIL FROM LOUISIANA LANDS.  THE TAXPAYER ACQUIRED A
CONTRACT FROM J. G. SUTTON, GRANTEE IN THE CONTRACT, THAT IMPOSED UPON
THE GRANTEE THE OBLIGATION TO DEVELOP THE OIL LAND.  FOR THAT PURPOSE
THE CONTRACT TRANSFERRED TO THE GRANTEE ALL OIL RIGHTS PREVIOUSLY
OBTAINED BY S. W. SWEENEY BY A LEASE FROM THE OWNERS OF THE LAND, THE
CAMERON PARISH SCHOOL BOARD.  THROUGH ANOTHER TRANSACTION THE GRANTOR
IN THE SUTTON CONTRACT, THE GULF REFINING COMPANY OF LOUISIANA,
ACQUIRED THESE RIGHTS FROM SWEENEY.  AN UNDERLYING OIL ROYALTY WAS
RETAINED BY THE SCHOOL BOARD AND AN OVERRIDING OIL ROYALTY BY SWEENEY. 
THE CONTRACT BETWEEN GULF AND SUTTON REQUIRED THE GRANTEE-OPERATOR, WHO
IS NOW THIS TAXPAYER, TO PAY TO THE GRANTOR, GULF, 50% OF THE PROCEEDS
OF THE OIL PRODUCED AND SOLD FROM THE LAND, DEDUCTING FROM THE PROCEEDS
CERTAIN ITEMIZED EXPENSES OF THE PRODUCER.  THOSE EXPENSES ARE SO
GENERAL IN CHARACTER THAT IT MAY BE SAID FAIRLY THAT GULF WAS TO
RECEIVE 50% OF THE NET FROM OPERATIONS. 

THE ISSUE HERE IS THE CORRECTNESS OF THE TAXPAYER'S MANNER OF
HANDLING THIS 50% NET FROM OPERATIONS, PAID TO GULF, IN ITS RETURN FOR
FEDERAL INCOME TAX FOR ITS FISCAL YEARS ENDING DURING 1936, 1937 AND
1938 UNDER THE REVENUE ACTS OF 1934 AND 1936.  THE TAXPAYER DEDUCTED
THESE PAYMENTS OF 50% OF NET INCOME FROM ITS INCOME FOR EACH OF THE
YEARS FROM THE OIL SOLD FROM THE PROPERTY.  IT CLAIMED THAT GULF
RETAINED AN ECONOMIC INTEREST IN THE OIL IN PLACE TO THE EXTENT OF THIS
50% PAYMENT.  THE TAX COURT UPHELD THE COMMISSIONER'S INCLUSION OF AN
AMOUNT EQUAL TO THESE 50% PAYMENTS IN THE TAXPAYER'S GROSS INCOME. 
THEY WERE INCLUDED BY THE COMMISSIONER IN THE INCOME ON THE THEORY THAT
THE 50% PAYMENTS REPRESENTED CAPITAL INVESTMENT BY THE TAXPAYER.  THAT
IS, THEY WERE A PART OF THE COST OF THE LEASE.  3 T.C. 1187.  IF THIS
THEORY IS CORRECT, IT IS PROPER TO ADD AN EQUIVALENT SUM, AS THE
COMMISSIONER DID, TO THE TAXPAYER'S GROSS INCOME.  FN1  THE CIRCUIT
COURT OF APPEALS AFFIRMED THE TAX COURT.  BURTON-SUTTON OIL CO. V.
COMMISSIONER, 150 F.2D 621. 

A DECISION ON THE CATEGORY OF EXPENDITURES TO WHICH THESE 50%
DISBURSEMENTS BELONG AFFECTS BOTH THE OPERATORS WHO MAKE THEM AND THE
OWNERS, LESSORS, VENDORS, GRANTORS, HOWEVER THEY MAY BE CLASSED, WHO
RECEIVE THEM.  IF THEY ARE CAPITAL INVESTMENTS TO ONE, THEY ARE CAPITAL
SALES TO THE OTHER.  IF THEY ARE RENTS OR ROYALTIES PAID OUT TO ONE,
THEY ARE RENTS OR ROYALTIES RECEIVED BY THE OTHER.  FN2  THE DECISION
BELOW CONFLICTS IN PRINCIPLE WITH COMMISSIONER V. FELIX OIL CO., 144
F.2D 276.  KIRBY PETROLEUM CO. V. COMMISSIONER, 326 U.S. 599, INVOLVED
PAYMENTS OF A SHARE OF NET INCOME BY A PRODUCER BUT DIFFERS FROM THIS
CASE BECAUSE THE LESSOR THERE WAS A LANDOWNER WHO RESERVED A ROYALTY AS
WELL AS A SHARE IN THE NET PROFITS.  CONSEQUENTLY, WE GRANTED
CERTIORARI, 327 U.S. 771. 

THE APPLICABLE PROVISIONS IN THE REVENUE ACTS OF 1934 AND 1936 AND
THE REGULATIONS THEREUNDER ARE SUBSTANTIALLY THE SAME FOR THE TWO
ACTS.  WE INSERT BELOW THOSE THAT SEEM PERTINENT.  FN3  THE ISSUE OF
THE CHARACTER OF THESE 50% PAYMENTS IS NOT SETTLED, HOWEVER, BY THE
STATUTES OR REGULATIONS.  THESE PRESCRIBE THE FEDERAL INCOME TAX
ACCOUNTING PROCEDURE AFTER A DETERMINATION THAT AN EXPENDITURE OF AN
OPERATOR IS OR IS NOT A RENT, A ROYALTY OR AN ORDINARY BUSINESS
EXPENSE, BUT THROW LITTLE LIGHT ON WHAT IS A RENT OR ROYALTY. 

IN THE KIRBY CASE, WE HELD THAT A PAYMENT OF A SHARE OF THE NET
PROFITS FROM OIL PRODUCTION BY THE OPERATOR TO THE OWNER OF THE LAND
WAS A RENT OR ROYALTY AND TAXABLE TO THE LANDOWNER AS INCOME FROM THE
OIL PROPERTY.  THEREFORE THE OWNER COULD TAKE FROM THE PAYMENT THE 27
1/2 PER CENTUM ALLOWANCE FOR DEPLETION PROVIDED BY SEC. 114(B)(3).  THE
REASON GIVEN IN THE KIRBY CASE FOR HOLDING THAT THE PAYMENT OF A PART
OF THE NET RETURN FROM THE PROPERTY TO THE LANDOWNER WAS A ROYALTY OR
RENT,  FN4  WAS THAT THE OWNER HAD A CAPITAL INVESTMENT - AN ECONOMIC
INTEREST - IN THE OIL WITH A POSSIBILITY OF PROFIT FROM THAT INTEREST
OR INVESTMENT SOLELY FROM THE EXTRACTION OF THE OIL.  AS HEREINBEFORE
INDICATED, THE LANDOWNER IN THE KIRBY CASE HAD RETAINED ALSO A ONE
SIXTH OIL ROYALTY AND HAD RECEIVED A BONUS.  IT WAS CONCEDED THAT AS
BOTH THE BONUS AND THE ROYALTY REPRESENTED A RETURN FOR THE SALE IN
PART OF THE LESSOR'S INVESTMENT IN THE OIL IN PLACE, THE LESSOR WAS
ENTITLED TO DEPLETION ON BOTH.  FN5 

THE RESPONDENT URGES THAT IN THE KIRBY CASE IT WAS THE LESSOR'S
ECONOMIC INTEREST IN SOME OF THE OIL ITSELF, OR ITS PROCEEDS, BECAUSE
OF THE BONUS AND ROYALTY RIGHTS, WHICH MADE THE NET PROFIT PAYMENTS
SUBJECT TO DEPLETION IN THE LESSOR'S HANDS; THAT NET PROFITS RECEIVED
ARE NOT DEPLETABLE UNLESS THE RECIPIENT IS ENTITLED ALSO TO OIL
ROYALTIES.  FN6  CONSEQUENTLY, THE GOVERNMENT CONTENDS THAT IN THIS
CASE WHERE THERE IS ONLY A SHARE IN PROFITS DUE TO THE ASSIGNOR, GULF,
THE KIRBY CASE CONCLUSION ON THE RIGHT TO DEPLETION SHOULD NOT BE
EXTENDED BUT THAT THE JUDGMENT BELOW SHOULD BE AFFIRMED ON THE GROUND
THAT THE PROFIT PAYMENT WAS A PART OF THE PURCHASE PRICE.  IN DEALING
WITH THE OPERATOR'S EXCLUSION FROM GROSS INCOME OF AGREED PAYMENTS TO
LESSORS OR ASSIGNORS OF LEASES OUT OF NET PROFITS AND WITH THE LESSOR'S
OR ASSIGNOR'S RIGHTS TO DEPLETION, THE TAX COURT HAS NOT FOLLOWED
CONSISTENTLY THE PRINCIPLE THAT A RESERVED ROYALTY IS NECESSARY TO MAKE
A NET PROFIT PAYMENT DEPLETABLE TO THE LESSOR AND DEDUCTIBLE FROM GROSS
INCOME FROM THE PROPERTY BY THE OPERATOR.  FN7  A NUMBER OF THE TAX
COURT CASES ON DEPLETION AND DEDUCTION CITED IN THE PRECEDING NOTE DID
INVOLVE RESERVED ROYALTIES AS WELL AS PAYMENTS OF NET PROFITS.  THE
FELIX OIL COMPANY AND A.B. INNIS DID NOT.  WE DO NOT AGREE WITH THE
GOVERNMENT THAT OWNERSHIP OF A ROYALTY OR OTHER ECONOMIC INTEREST IN
ADDITION TO THE RIGHT TO NET PROFITS IS ESSENTIAL TO MAKE THE POSSESSOR
OF A RIGHT TO A SHARE OF THE NET PROFIT THE OWNER OF AN ECONOMIC
INTEREST IN THE OIL IN PLACE.  THE DECISION IN KIRBY DID NOT REST ON
THAT POINT. 

TO LET THE CHARACTER OF THE NET PROFIT PAYMENTS TURN WHOLLY ON THE
OWNERSHIP OF A ROYALTY OF SOME SORT BY THE ONE WHO RECEIVED THE NET
PROFIT WOULD MAKR THE RIGHT TO DEPLETION A FORM OF WORDS.  NO SUCH
MECHANICAL APPLICATION OF A NATIONAL TAX ACT IS DESIRABLE.  COMPARE
BURNET V. HARMEL, 287 U.S. 103, 110-11.  THIS TAXPAYER'S ACQUISITION OF
SUTTON'S CONTRACT WITH GULF PLACES THE TAXPAYER IN SUTTON'S SITUATION
AS OPERATOR OF THE SCHOOL BOARD LEASE.  THE SCHOOL BOARD AND SWEENEY,
THE ORIGINAL PARTIES TO THE LEASE, UNQUESTIONABLY HAVE ROYALTIES WHICH
WOULD COMPEL A DETERMINATION THAT NET INCOME PAYMENTS WOULD BE SUBJECT
TO DEPLETION IF PAID TO THEM IN ADDITION TO THEIR ROYALTIES.  IT DOES
NOT LOGICALLY FOLLOW, IT SEEMS TO US, THAT THE MERE RECEIPT OF THE NET
INCOME PAYMENTS BY DIFFERENT LESSORS OR ASSIGNORS CAN CHANGE THE
CHARACTER OF THE TAXPAYER'S ARRANGEMENTS FROM LEASES TO PURCHASES. 

IT SEEMS GENERALLY ACCEPTED THAT IT IS THE OWNER OF A CAPITAL
INVESTMENT OR ECONOMIC INTEREST IN THE OIL IN PLACE WHO IS ENTITLED TO
THE DEPLETION.  ANDERSON V. HELVERING, 310 U.S. 404, 407; EULEON JOCK
GRACEY, 5 T.C. 296, 302; KIRBY PETROLEUM CO. V. COMMISSIONER, SUPRA.
WHETHER THE INSTRUMENT CREATING THE RIGHTS IS A LEASE, A SUBLEASE OR AN
ASSIGNMENT HAS NOT BEEN DEEMED SIGNIFICANT FROM THE FEDERAL TAX
VIEWPOINT IN DETERMINING WHETHER OR NOT THE TAXPAYER HAD AN ECONOMIC
INTEREST IN THE OIL IN PLACE.  PALMER V. BENDER, 287 U.S. 551, 557,
558.  NOR HAS THE TITLE TO THE OIL IN PLACE BEEN CONSIDERED BY THIS
COURT AS DECISIVE OF THE CAPITAL INVESTMENT OF THE TAXPAYER IN THE
OIL.  FN8  TECHNICAL TITLE TO THE PROPERTY DEPLETED WOULD ORDINARILY BE
REQUIRED FOR THE APPLICATION OF DEPLETION OR DEPRECIATION.  IT IS NOT
MATERIAL WHETHER THE PAYMENT TO THE ASSIGNOR IS IN OIL OR IN CASH WHICH
IS THE PROCEEDS OF THE OIL, HELVERING V. TWIN BELL SYNDICATE, 293 U.S.
312, 321, NOR THAT SOME OF THE PAYMENTS WERE IN THE FORM OF A BONUS FOR
THE CONTRACT.  BURNET V. HARMEL, 287 U.S. 103, 111; MURPHY OIL CO. V.
BURNET, 287 U.S. 299, 302.  CONGRESS, HOWEVER, HAS RECOGNIZED THE
PECULIAR CHARACTER OF THE BUSINESS OF EXTRACTING NATURAL RESOURCES. 
FN9  LEASES ARE A METHOD OF EXPLOITATION OF THE LAND FOR OIL AND
PAYMENTS UNDER LEASES ARE "INCOME TO THE LESSOR, LIKE PAYMENTS OF
RENT."  FN10  RECEIPTS FROM OIL SALES ARE GROSS INCOME TO THE OPERATOR
AND SUBJECT TO STATUTORY DEDUCTIONS.  SINCE LESSORS AS WELL AS LESSEES
AND OTHER TRANSFEREES OF THE RIGHT TO EXPLOIT THE LAND FOR OIL MAY
RETAIN FOR THEMSELVES THROUGH THEIR CONTROL OVER THE EXPLOITATION OF
THE LAND VALUABLE BENEFITS ARISING FROM AND DEPENDENT UPON THE
EXTRACTION OF THE OIL, FN11  CONGRESS PROVIDED AS EARLY AS THE REVENUE
ACT OF 1918  FN12  FOR EQUITABLE APPORTIONMENT OF THE DEPLETION
ALLOWANCE BETWEEN THEM TO CORRECT WHAT WAS SAID TO BE AN EXISTING
INEQUALITY IN THE LAW OR ITS ADMINISTRATION.  FN13 

IN THE PRESENT CASE, THE ASSIGNOR OF THE PETITIONER BEFORE ASSIGNMENT
HAD AN ECONOMIC INTEREST IN THE OIL IN PLACE THROUGH ITS CONTROL OVER
EXTRACTION.  UNDER THE CONTRACT WITH PETITIONER, ITS ASSIGNOR RETAINED
A PART OF THIS INTEREST - FIFTY PER CENT OF NET.  LIKE THE OTHER
HOLDERS OF SUCH ECONOMIC INTEREST THROUGH ROYALTIES, THE PETITIONER
LOOKED TO THE SPECIAL DEPLETION ALLOWANCES OF SEC. 114(B)(3) TO RETURN
WHATEVER CAPITAL INVESTMENT IT HAD.  THE COST OF THAT INVESTMENT TO THE
BENEFICIARY OF THE DEPLETION UNDER SEC. 114(B)(3) IS UNIMPORTANT. 
DEPLETION DEPENDS ONLY UPON PRODUCTION.  IT IS THE LESSOR'S, LESSEE'S
OR TRANSFEREE'S "POSSIBILITY OF PROFIT" FROM THE USE OF HIS RIGHTS OVER
PRODUCTION, "DEPENDENT SOLELY UPON THE EXTRACTION AND SALE OF THE OIL,"
WHICH MARKS AN ECONOMIC INTEREST IN THE OIL.  SEE KIRBY PETROLEUM CO.
V. COMMISSIONER, SUPRA, PAGE 604.  THROUGH RETENTION OF CERTAIN RIGHTS
TO PAYMENTS FROM OIL OR ITS PROCEEDS IN HIMSELF, EACH OF THESE
ASSIGNORS OF PARTIAL EXPLOITATION RIGHTS IN OIL LANDS HAS MAINTAINED A
CAPITAL INVESTMENT OR ECONOMIC INTEREST IN THE OIL OR ITS PROCEEDS. 
FN14  AS THE OIL IS EXTRACTED AND SOLD, THAT ECONOMIC INTEREST IN THE
OIL IN PLACE IS REDUCED AND THE HOLDER OR OWNER OF THE INTEREST IS
ENTITLED TO HIS EQUITABLE PROPORTION OF THE DEPLETION AS RENT OR
ROYALTY.  THE OPERATOR, OF COURSE, MAY DEDUCT SUCH PAYMENTS FROM THE
GROSS RECEIPTS. 

OF COURSE, SUCH A TRANSFEROR, WHETHER THE LANDOWNER OR ANY
INTERMEDIATE ASSIGNOR, MAY COMPLETELY DIVEST HIMSELF OF ANY INTEREST,
ECONOMIC OR OTHERWISE, IN THE EXTRACTION OF THE OIL.  AS THE RECORD
SHOWS NO RESERVATION OF AN ECONOMIC INTEREST BY SUTTON, THE ASSIGNEE OF
GULF AND THE ASSIGNOR OF PETITIONER, HE APPEARS TO HAVE DONE SO IN THIS
CASE.  SEE HELVERING V. ELBE OIL LAND CO., 303 U.S. 372.  WHILE, AS
POINTED OUT ABOVE, THE PAYMENT OF PROCEEDS IN CASH, THE FORM OF THE
INSTRUMENT OF TRANSFER AND ITS EFFECT ON THE TITLE TO THE OIL UNDER
LOCAL LAW ARE NOT DECISIVE OF THE RIGHT TO PARTICIPATION IN DEPLETION
UNDER SECS. 23(M) AND 114(B)(3), THERE MUST BE A DETERMINATION UNDER
FEDERAL TAX LAW AS TO "WHETHER THE TRANSFEROR HAS MADE AN ABSOLUTE SALE
OR HAS RETAINED" SUCH ECONOMIC INTEREST AS WE HAVE JUST DESCRIBED IN
THE PRECEDING PARAGRAPH.  KIRBY PETROLEUM CO. V. COMMISSIONER, SUPRA,
PAGE 606.  WE HAVE SAID THAT THE INSTRUMENT SHOULD BE CONSTRUED AS A
SALE WHEN A LARGE CASH PAYMENT WAS MADE WITH A RESERVED PAYMENT THAT
COULD BE SATISFIED BY FUTURE SALES OF THE TRANSFERRED PROPERTY WITHOUT
EXTRACTION OF THE OIL.  OBVIOUSLY THERE COULD BE NO DEPLETION WITHOUT
EXTRACTION.  ANDERSON V. HELVERING, 310 U.S. 404, 412.  ON THE OTHER
HAND, WE HAVE CONSTRUED AN ASSIGNMENT OF OIL LEASES FOR CASH AND A
DEFERRED PAYMENT, "PAYABLE OUT OF OIL ONLY, IF, AS AND WHEN PRODUCED,"
AS THE RESERVATION OF AN ECONOMIC INTEREST IN THE OIL - NOT A SALE. 
THOMAS V. PERKINS, 301 U.S. 655. 

THE GOVERNMENT CONTENDS THAT HELVERING V. ELBE OIL LAND CO., 303 U.S.
372, CONTROLS THIS CASE.  THE TRANSFER OF THE LEASES IN ELBE WAS HELD
AN ABSOLUTE SALE.  THERE THE TRANSFER WAS FOR CASH, DEFERRED PAYMENTS
IN CASH, IF THE ASSIGNEE DID NOT TAKE ADVANTAGE OF A STIPULATION FOR
ABANDONMENT, AND A ONE-THIRD INTEREST IN THE NET PROFITS OF THE
ASSIGNEE.  IT WAS FURTHER PROVIDED THAT ELBE, THE ASSIGNOR AFTER THE
TRANSFER, SHOULD HAVE "NO INTEREST IN OR TO SAID PROPERTIES," EXCEPT IN
THE CASE OF AN ABANDONMENT OF THE PROPERTY BY THE ASSIGNEE.  THIS
PROVISION FOR THE TRANSFER OF ALL INTEREST OF THE ASSIGNOR WAS
EMPHASIZED AS A SIGNIFICANT PART OF THE AGREEMENT FOR TRANSFER.  THE
ISSUE UPON WHICH THIS COURT PASSED WAS THE CLASSIFICATION OF THE
DEFERRED PAYMENTS.  WERE THEY GROSS INCOME FROM THE PROPERTY OR
RECEIPTS FROM A SALE OF THE LEASES?  THESE DEFERRED PAYMENTS WERE NOT
PAYABLE OUT OF OIL SALES BUT WERE PAYABLE ABSOLUTELY, UNLESS THERE WAS
AN ABANDONMENT.  THIS COURT CONCLUDED THAT THE ADDITION OF A PROVISION
FOR THE PAYMENT OF A SHARE OF NET PROFITS DID NOT QUALIFY "IN ANY WAY
THE EFFECT OF THE TRANSACTION AS AN ABSOLUTE SALE."  PAGE 375.  IN VIEW
OF WHAT WE HAVE SAID IN THIS AND IN THE KIRBY PETROLEUM CASE AS TO THE
ECONOMIC INTEREST IN THE OIL OF A RECIPIENT OF A SHARE OF NET PROFITS,
THE HOLDING OF ELBE SHOULD NOT BE EXTENDED TO THE FACTS OF THIS
AGREEMENT.    THE ASSIGNOR, GULF, IN THE ASSIGNMENT HERE INVOLVED,
REQUIRED THE GRANTEE TO DRILL PROMPTLY, TO ACCOUNT FOR PRODUCTION, TO
PAY OVER FIFTY PER CENT OF RECEIPTS, LESS AGREED COSTS AND EXPENSES,
AND TO SELL THE PRODUCTION ON DEFINED TERMS TO GRANTOR, IF GRANTOR
DESIRED TO PURCHASE.  THIS LAST CLAUSE DID NOT APPEAR IN THE ELBE
CONTRACT.  SUCH A TRANSFER OF RIGHTS TO EXPLOIT COULD NOT, WE THINK,
PROPERLY BE CONSTRUED AS A SALE.  IT IS RATHER AN ASSIGNMENT TO THE
OPERATOR, PETITIONER HERE, OF THE RIGHT TO EXPLOIT THE PROPERTY  FN15
WITH A RESERVATION IN THE ASSIGNOR OF AN ECONOMIC INTEREST IN THE OIL. 
REVERSED. 

FN1  THE COMMISSIONER AND THE TAX COURT ALLOWED THE TAXPAYER
DEPLETION UPON ITS ENTIRE INCOME, SO ADJUSTED, UNDER SEC. 114(B). 

FN2  KIRBY PETROLEUM CO. V. COMMISSIONER, 326 U.S. 599, 603-605;
ANDERSON V. HELVERING, 310 U.S. 404, 407. 

FN3  REVENUE ACT OF 1936, CH. 690, 49 STAT. 1648, 1660, 1686: 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME. 

IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     .         .         .       .         . 

(M)  DEPLETION.  - IN THE CASE OF MINES, OIL AND GAS ELLS, OTHER
NATURAL DEPOSITS, AND TIMBER, A REASONABLE ALLOWANCE FOR DEPLETION AND
FOR DEPRECIATION OF IMPROVEMENTS, ACCORDING TO THE PECULIAR CONDITIONS
IN EACH CASE; SUCH REASONABLE ALLOWANCE IN ALL CASES TO BE MADE UNDER
RULES AND REGULATIONS TO BE PRESCRIBED BY THE COMMISSIONER, WITH THE
APPROVAL OF THE SECRETARY  ....  IN THE CASE OF LEASES THE DEDUCTIONS
SHALL BE EQUITABLY APPORTIONED BETWEEN THE LESSOR AND LESSEE  ...." 

"SEC. 114.  BASIS FOR DEPRECIATION AND DEPLETION. 

(B)  BASIS FOR DEPLETION.  - 

(3)  PERCENTAGE DEPLETION FOR OIL AND GAS WELLS.  - IN THE CASE OF
OIL AND GAS WELLS THE ALLOWANCE FOR DEPLETION UNDER SECTION 23(M) SHALL
BE 27 1/2 PER CENTUM OF THE GROSS INCOME FROM THE PROPERTY DURING THE
TAXABLE YEAR, EXCLUDING FROM SUCH GROSS INCOME AN AMOUNT EQUAL TO ANY
RENTS OR ROYALTIES PAID OR INCURRED BY THE TAXPAYER IN RESPECT OF THE
PROPERTY  ...." 

TREASURY REGULATIONS 94, PROMULGATED UNDER THE REVENUE ACT OF 1936: 

"ART. 23(M)-1(AS AMENDED BY T.D. 5413, 1944 CUM. BULL.  124). 
DEPLETION OF MINES, OIL AND GAS WELLS, OTHER NATURAL DEPOSITS, AND
TIMBER; DEPRECIATION OF IMPROVEMENTS.  - 

     .         .         .         . . 

(G)  THE TERM 'GROSS INCOME FROM THE PROPERTY,' AS USED IN SECTIONS
114(B)(3) AND 114(B)(4) AND ...  ARTICLES 23(M)-1 TO 23(M)-28 OF
REGULATIONS  ...  94  ...  MEANS THE FOLLOWING: 

IN THE CASE OF OIL AND GAS WELLS, 'GROSS INCOME FROM THE PROPERTY' AS
USED IN SECTION 114(B)(3) MEANS THE AMOUNT FOR WHICH THE TAXPAYER SELLS
THE OIL AND GAS IN THE IMMEDIATE VICINITY OF THE WELL  .... 

IN ALL CASES THERE SHALL BE EXCLUDED IN DETERMINING THE 'GROSS INCOME
FROM THE PROPERTY' AN AMOUNT EQUAL TO ANY RENTS OR ROYALTIES WHICH WERE
PAID OR INCURRED BY THE TAXPAYER IN RESPECT OF THE PROPERTY AND ARE NOT
OTHERWISE EXCLUDED FROM THE 'GROSS INCOME FROM THE PROPERTY.'..." 

FN4  A READING OF SEC. 114(B)(3) SHOWS THAT THE "GROSS INCOME FROM
THE PROPERTY" MEANS INCOME FROM THE OIL AND GAS WELLS ON THE PROPERTY. 
HELVERING V. TWIN BELL SYNDICATE, 293 U.S. 312; HELVERING V. PRODUCERS
CORP., 303 U.S. 376, 382.  OTHER INCOME WOULD NOT BE DEPLETABLE UNDER
THAT SECTION.  "RENTS OR ROYALTIES" IN THE SECTION ARE THOSE PAYABLE
FOR THE PRIVILEGE OF EXTRACTION. 

FN5  KIRBY PETROLEUM CO. V. COMMISSIONER, SUPRA, PP. 601-602; BURNET
V. HARMEL, 287 U.S. 103, 111; MURPHY OIL CO. V. BURNET, 287 U.S. 299,
302. 

FN6  THE PRINCIPLE UPON WHICH THE TAX COURT AND THE CIRCUIT COURT OF
APPEALS DECIDED THIS CASE FOR RESPONDENT DIFFERS FROM RESPONDENT'S
PRESENT CONTENTION.  THIS PRINCIPLE WAS THAT AN OBLIGATION TO PAY A
PART OF NET PROCEEDS IS A PERSONAL COVENANT OF THE OBLIGOR AND WAS THE
PURCHASE PRICE FOR THE ASSIGNMENT.  BURTON-SUTTON OIL CO. V.
COMMISSIONER, 150 F.2D 621, 622; 3 T.C. 1187, 1194, RELYING UPON
QUINTANA PETROLEUM CO. V. COMMISSIONER, 143 F.2D 588, 590-91; 44 B.T.A.
624, 627; HELVERING V. ELBE OIL LAND CO., 303 U.S. 372. 

FN7  IN W. S. GREEN, 26 B.T.A. 1017, THE LESSOR WAS ALLOWED DEPLETION
ON A NET INCOME PAYMENT IN ADDITION TO HIS ROYALTY ON THE GROUND THAT
THE NET INCOME PAYMENT WAS LIKE A BONUS. 

IN MARRS MCLEAN, 41 B.T.A. 565, 573, WHICH WAS DECIDED AFTER THE ELBE
CASE, THE TAX COURT SAID A TRANSFER OF LEASES FOR CASH AND A SHARE OF
THE PROFITS WAS A SALE.  WHERE ONLY A THREE-FOURTHS INTEREST IN THE
LEASE WAS TRANSFERRED AND THE TRANSFEROR WAS TO HAVE ONE-FOURTH OF THE
NET PROFITS, DEPLETION WAS ALLOWED THE ASSIGNOR. 

IN FELIX OIL CO., T.C. DOCKET NO. 107148, DECIDED DECEMBER 18, 1942,
A LESSOR CORPORATION THAT HAD LEASED ITS OIL LANDS FOR A CASH PAYMENT
PLUS 50% OF THE NET PROFITS AS DEFINED IN THE LEASE AND NO ROYALTY, WAS
HELD TO HAVE "RETAINED AN INTEREST IN THE OIL IN PLACE" THROUGH ITS
OWNERSHIP OF THE LAND.  "CLEARLY, PETITIONER RETAINED AN INTEREST IN
THE OIL PRODUCED BECAUSE IT COULD COMPEL THE LESSEE TO SELL 50 PERCENT
OF THE PRODUCTION ELSEWHERE IF IT BECAME DISSATISFIED WITH AMOUNTS
REALIZED BY THE LESSEE."  MEMORANDUM OP., P. 13.  SEE COMMISSIONER V.
FELIX OIL CO., 144 F.2D 277, AFFIRMING.  COMPARE A.B. INNIS, T.C.
DOCKET NOS. 2735-2736, JUNE 29, 1945. 

IN KIRBY PETROLEUM CO., 2 T.C. 1258, 1261, THE TAX COURT RELIED ON
THE LATTER RULING IN MARRS MCLEAN AND HELD THAT THE LESSOR COULD
DEPLETE ITS NET PROFITS PAYMENT, AS WELL AS ITS ROYALTY.  IT LATER
EXPLAINED THIS RULING AS BASED ON THE KIRBY COMPANY'S RETENTION OF A
"ONE-SIXTH OIL ROYALTY, THUS RESERVING TO ITSELF AN INTEREST IN THE OIL
IN PLACE."  ESTATE OF DAN A. JAPHET, 3 T.C. 86, 93. 

IN THE JAPHET CASE, DEPLETION ON NET PROFITS FROM AN ASSIGNEE'S
OPERATION WAS DENIED AN ASSIGNOR OF A LEASE WHO HAD RECEIVED A CASH
PAYMENT BUT HAD NOT RESERVED A ROYALTY.  IT WAS SAID NO "ECONOMIC
INTEREST" WAS RESERVED. 

IN A.B. INNIS, T.C. DOCKET NOS. 2735-2736, JUNE 29, 1945, A SIMILAR
PROBLEM AROSE AS TO DEDUCTIBILITY BY GOLD LEASE OPERATORS FROM THEIR
GROSS INCOME OF A SHARE IN NET PROFITS PAID TO THE SUB-LESSOR OF THE
LEASE.  THE TAX COURT FOUND NO DIFFERENCE BETWEEN SUCH A PAYMENT TO A
SUB-LESSOR AND ONE TO A LESSOR.  BOTH WERE SAID TO HAVE ECONOMIC
INTERESTS AND THEREFORE DEPLETABLE RIGHTS.  FELIX OIL CO., SUPRA, WAS
FOLLOWED AND QUINTANA, SUPRA, DISTINGUISHED AS A SALE BY ASSIGNMENT
RATHER THAN SUBLEASE.  WILLIAMS BAR DREDGING CO. IS IN ACCORD.  T.C.
DOCKET NOS. 3284, 4074, JUNE 30, 1945. 

IN QUINTANA PETROLEUM CO., 44 B.T.A. 624, AN OPERATOR-ASSIGNEE
ACQUIRED AN OIL LEASE BY AN AGREEMENT THAT CALLED FOR PAYMENT BY THE
ASSIGNEE TO THE ASSIGNOR OF ONE-FOURTH OF THE NET PROCEEDS FROM THE
LEASED PROPERTY WITH NO RESERVATION OF ROYALTY.  THE BOARD CONCLUDED
THAT THE ASSIGNMENT WAS A PURCHASE AND NO DEDUCTION OF THE AMOUNT OF
NET PROFITS PAID WAS ALLOWABLE.  SEE ALSO QUINTANA PETROLEUM CO. V.
COMMISSIONER, 143 F.2D 588. 

IN EULEON JOCK GRACEY, 5 T.C. 296, 302, DECIDED JUNE 21, 1945, THE
TAX COURT UNDER SIMILAR CIRCUMSTANCES FOLLOWED QUINTANA AND HELD AN
OPERATOR-ASSIGNEE WAS ENTITLED TO DEPLETION ON GROSS PRODUCTION BUT
COULD NOT EXCLUDE THE NET PROFIT PAYMENT TO HIS ASSIGNEE FROM HIS
GROSS, AS THE TRANSFER OF THE LEASE, IN CONSIDERATION OF A NET PROFIT
PAYMENT ONLY, WAS A SALE. 

FN8  287 U.S. AT 557:  "THE LANGUAGE OF THE STATUTE IS BROAD ENOUGH
TO PROVIDE, AT LEAST, FOR EVERY CASE IN WHICH THE TAXPAYER HAS
ACQUIRED, BY INVESTMENT, ANY INTEREST IN THE OIL IN PLACE, AND SECURES,
BY ANY FORM OF LEGAL RELATIONSHIP, INCOME DERIVED FROM THE EXTRACTION
OF THE OIL, TO WHICH HE MUST LOOK FOR A RETURN OF HIS CAPITAL." 

287 U.S. AT 558:  "EVEN THOUGH LEGAL OWNERSHIP OF IT, IN A TECHNICAL
SENSE, REMAINED IN THEIR LESSOR, THEY, AS LESSEES, NEVERTHELESS
ACQUIRED AN ECONOMIC INTEREST IN IT WHICH REPRESENTED THEIR CAPITAL
INVESTMENT AND WAS SUBJECT TO DEPLETION UNDER THE STATUTE."  LYNCH V.
ALWORTH-STEPHENS CO., 267 U.S. 364; BURNET V. HARMEL, 287 U.S. 103, 109
10; BANKERS COAL CO. V. BURNET, 287 U.S. 308; KIRBY PETROLEUM CO. V.
COMMISSIONER, SUPRA, P. 603. 

FN9  STRATTON'S INDEPENDENCE V. HOWBERT, 231 U.S. 399, 413-14. 

FN10  BURNET V. HARMEL, 287 U.S. 103, 107-8. 

FN11  SEE LYNCH V. ALWORTH-STEPHENS CO., 267 U.S. 364, 370; PALMER V.
BENDER, 287 U.S. 551, 556. 

FN12  40 STAT. 1057, 1067, 1078, SECS. 214(A)(10), 234(A)(9). 

FN13  H. REP. NO. 767, 65TH CONG., 2D SESS., SEPTEMBER 3, 1918,
DEDUCTIONS (5) AND FOR CORPORATIONS, DEDUCTIONS (4). 

THE INEQUALITY REFERRED TO UNDER THE REVENUE ACT OF 1916, 39 STAT.
759, SEC. 5, EIGHTH (A), AROSE FROM THE PREFERRED TREATMENT GIVEN THE
OWNER OVER THE LESSEE.  SEE HEARINGS, HOUSE COMMITTEE ON WAYS AND
MEANS, 65TH CONG., 2D SESS., PP. 455, 516-17, 523-28, 530-31. 
REGULATIONS 33, INCOME TAX, PROMULGATED JANUARY 2, 1918, ART. 170;
REGULATIONS 45, 1920 ED., INCOME TAX, PROMULGATED JANUARY 28, 1921,
ART. 201. 

THE APPLICABLE LAW FOR ALLOWANCE OF DEPLETION IN OIL AND GAS WELLS
APPEARS IN SEC. 114(B)(3).  IT IS IDENTICAL WITH I.R.C. SEC.
114(B)(3).  THIS SECTION IS THE RESULT OF ADMINISTRATIVE EXPERIENCE
WITH OIL AND GAS DEPLETION.  HEARINGS, SEN. COM. ON FINANCE, 69TH
CONG., 1ST SESS., PP. 177-78; HEARINGS, HOUSE COM. ON WAYS AND MEANS,
69TH CONG., P. 1006.  SEE H. REP. NO. 1, 69TH CONG., 1ST SESS.,
DECEMBER 7, 1925, DISCOVERY VALUE; SEC. 204(C)(2), 44 STAT. 16.  FOR
DISCUSSION SEE HELVERING V. TWIN BELL SYNDICATE, 293 U.S. 312, AND
KIRBY PETROLEUM CO. V. COMMISSIONER, SUPRA, PP. 602, 603.  DEPLETION IS
NOW AN ARBITRARY PERCENTAGE ALLOWANCE BASED ON PRODUCTION FROM THE
WELLS WITHOUT REGARD TO COST OR VALUE OF THE PROPERTY. 

FN14  A PARTICIPATION IN NET PROFITS DISASSOCIATED FROM AN ECONOMIC
INTEREST DOES NOT ENABLE A RECIPIENT OF SUCH PROFITS TO BENEFIT FROM
DEPLETION.  HELVERING V. O'DONNELL, 303 U.S. 370. 

FN15  SEE THE DISCUSSION OF FELIX OIL CO. IN NOTE 7, SUPRA. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 

MR. JUSTICE FRANKFURTER. 

THE TORTUOUS PROCESS BY WHICH THE RESULT IN THIS CASE HAS EVIDENTLY
TO BE REACHED BY THE COURT JUSTIFIES CALLING ATTENTION AGAIN TO THE
PRESENT UNSATISFACTORY STATE OF TAX LITIGATION.  IT IS OF COURSE IDLE
TO EXPECT THAT THE COMPLEXITIES OF OUR ECONOMIC LIFE PERMIT REVENUE
MEASURES TO BE DRAWN WITH SUCH SIMPLICITY AND PARTICULARITY AS TO AVOID
MUCH LITIGATION.  BUT IT IS NOT A COUNSEL OF PERFECTION TO ASSUME THAT
A SYSTEM OF JUDICIAL OVERSIGHT OF FISCAL ADMINISTRATION CAN BE DEVISED
SUFFICIENTLY RATIONAL TO AVOID THE UNEDIFYING SERIES OF CASES RELATING
TO INCOME FROM OIL OPERATIONS CULMINATING, FOR THE PRESENT AT LEAST, IN
THIS CASE.  THE COURT MADE A BRAVE EFFORT IN DOBSON V. COMMISSIONER,
320 U.S. 489, TO MEET SOME OF THE DIFFICULTIES OF THE PRESENT
DISTRIBUTION OF JUDICIAL AUTHORITY IN TAX CASES BY LODGING PRACTICAL
FINALITY IN A TAX COURT DECISION UNLESS IT INVOKES A "CLEAR-CUT MISTAKE
OF LAW."  ID. AT 502.  AN ATTEMPT TO GIVE ADEQUATE SCOPE TO SUCH A
DOCTRINE OF JUDICIAL ABSTENTION BY DEALING WITH THE PRACTICALITIES OF
TAX MATTERS INSTEAD OF RELYING ON THE GRAB-BAG CONCEPTS OF "LAW" AND
"FACT" AS A BASIS OF REVIEW HAS NOT, HOWEVER, COMMENDED ITSELF TO THE
COURT.  SEE TRUST OF BINGHAM V. COMMISSIONER, 325 U.S. 365. 

TO BE SURE, EVEN THE ADOPTION OF THIS VIEW WOULD NOT MAKE THE TAX
COURT THE EXCHEQUER COURT OF THE COUNTRY INASMUCH AS TAX LITIGATION CAN
GO THROUGH THE DISTRICT COURTS AS WELL AS THROUGH THE TAX COURT.  IT
WOULD, HOWEVER, LARGELY CENTRALIZE REVIEW IN THE TAX COURT OF TREASURY
DETERMINATIONS, ASSUMING THAT THE BULK OF TAX LITIGATION WILL CONTINUE
TO FIND ITS WAY TO THE TAX COURT. 

IT IS SUGGESTED THAT THE TAX COURT MAKES DIFFERENTIATIONS FROM CASE
TO CASE WHICH TO THE UNINITIATED LOOK SUSPICIOUSLY LIKE CONFLICTING
OPINIONS.  BUT IT IS IMPOSSIBLE TO ESCAPE NICE DISTINCTIONS IN THE
APPLICATION OF COMPLICATED TAX LEGISLATION.  AND SO FAR AS OVER-NICE
DISTINCTIONS ARE TO BE MADE, I DO NOT SEE THAT IT HELPS THE
ADMINISTRATION OF LAW FOR THIS COURT RATHER THAN THE TAX COURT TO MAKE
THEM. 

NOTHING BETTER ILLUSTRATES THE GOSSAMER LINES THAT HAVE BEEN DRAWN BY
THIS COURT IN TAX CASES THAN THE DISTINCTION MADE IN THE COURT'S
OPINION BETWEEN HELVERING V. ELBE OIL LAND CO., 303 U.S. 372, AND THIS
CASE.  TO DRAW SUCH DISTINCTIONS, WHICH HARDLY CAN BE HELD IN THE MIND
LONGER THAN IT TAKES TO STATE THEM, DOES NOT ACHIEVE THE ATTAINABLE
CERTAINTY THAT IS SUCH A DESIDERATUM IN TAX MATTERS, NOR DOES IT MAKE
GENERALLY FOR RESPECT OF LAW.  PERHAPS IT IS INHERENT IN THE SCHEME
WHICH CONGRESS HAS PROVIDED FOR REVIEW OF TAX LITIGATION THAT WE HAVE
SUCH AN UNSATISFACTORY SERIES OF DECISIONS AS THOSE WHICH ARE SOUGHT TO
BE RECONCILED BY THE PRESENT OPINION.  IF SO, THEN THE CALL FOR
LEGISLATION VOICED IN RESPONSIBLE QUARTERS TO REFORM THE SITUATION MAY
WELL BE HEEDED.  SEE E.G., GRISWOLD, THE NEED FOR A COURT OF TAX
APPEALS (1944) 57 HARV. L. REV. 1153. 
..END :


















UTAH JUNK CO. V. PORTER, 328 U.S. 39 


NO. 400.  ARGUED FEBRUARY 26, 1946.  - DECIDED APRIL 22, 1946.  - 150
F.2D 963, REVERSED. 


1.  THE AMENDMENT OF SEC. 203(A) OF THE EMERGENCY PRICE CONTROL ACT OF
1942 BY SEC. 106 OF THE STABILIZATION ACT OF 1944 AUTHORIZED ANY PERSON
SUBJECT TO A PRICE SCHEDULE TO FILE A PROTEST "AT ANY TIME."  HELD
THAT, ALTHOUGH THE TIME WITHIN WHICH A PROTEST COULD BE FILED UNDER THE
ORIGINAL ACT HAD EXPIRED, A PERSON WHOSE RIGHTS WERE AFFECTED WAS
ENTITLED TO FILE A PROTEST UNDER THE AMENDATORY ACT, NOTWITHSTANDING
THAT THE BASIS OF HIS OBJECTION TO THE PRICE SCHEDULE HAD BEEN REMOVED
PROSPECTIVELY BY MODIFICATION OF THE PRICE SCHEDULE PRIOR TO THE FILING
OF THE PROTEST.  P. 43. 

2.  THE CONSIDERATIONS OF FAIRNESS WHICH LED CONGRESS TO LIBERALIZE
THE RIGHT OF PROTEST UNDER THE PRICE CONTROL LEGISLATION APPLY EQUALLY
TO A REGULATION THAT HAS BEEN REVISED AND TO A NEW REGULATION, WHERE
THE SUPERSEDED REGULATION CONTINUES TO GOVERN THE VALIDITY OF
TRANSACTIONS THAT OCCURRED UNDER ITS RULE.  P. 44. 

3.  THE CONTENTIONS THAT THE ADMINISTRATOR OUGHT NOT TO BE BURDENED
WITH ISSUES ARISING UNDER SUPERSEDED REGULATIONS, AND THAT THE
PROTESTANT HERE COULD TEST THE VALIDITY OF THE PRICE SCHEDULE BY OTHER
PROCEDURES, DO NOT WARRANT THE CONSTRUCTION URGED BY THE
ADMINISTRATOR.  PP. 44-45. 

UTAH JUNK CO. V. PORTER, PRICE ADMINISTRATOR. 

CERTIORARI TO THE EMERGENCY COURT OF APPEALS. 

THE PRICE ADMINISTRATOR DENIED A PROTEST FILED WITH HIM BY THE
PETITIONER UNDER THE EMERGENCY PRICE CONTROL ACT.  THE EMERGENCY COURT
OF APPEALS DISMISSED PETITIONER'S COMPLAINT.  150 F.2D 963.  THIS COURT
GRANTED CERTIORARI.  326 U.S. 710.  REVERSED, P. 45. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS ONE OF A SERIES OF CASES CALLING FOR THE CONSTRUCTION OF
AMENDMENTS TO THE EMERGENCY PRICE CONTROL ACT OF 1942. 

CONFINED WITHIN NARROW LIMITS THE RIGHT TO PROTEST TO THE ADMINISTRATOR
AGAINST A PRICE SCHEDULE PROMULGATED BY HIM.  THE STABILIZATION ACT OF
1944, 58 STAT. 632, 638; 50 U.S.C. APP. SEC. 923, GREATLY LIBERALIZED
THIS RIGHT TO PROTEST.  THE VIEW TAKEN BY THE UNITED STATES EMERGENCY
COURT OF APPEALS OF THE SCOPE OF THIS LIBERALIZATION, 150 F.2D 963,
BASED ON ITS PRIOR RULING IN THOMAS PAPER STOCK CO. V. BOWLES, 148 F.2D
831, LED US TO BRING THE CASE HERE.  326 U.S. 710. 

THE FACTS RELEVANT TO THE IMMEDIATE ISSUE CAN BE QUICKLY STATED.  THE
ADMINISTRATOR ESTABLISHED MAXIMUM PRICES FOR IRON AND STEEL SCRAP. 
REVISED PRICE SCHEDULE NO. 4, 7 FED. REG. 1207(FEBRUARY 21, 1942). 
THIS SCHEDULE, SEC. 1304.13(F), ID. AT 1212, MADE NO SPECIAL PROVISION
FOR SMELTER FLUXING SCRAP, SCRAP PREPARED FOR USE IN LEAD BLAST
FURNACES.  PETITIONER, A SCRAP DEALER, OPERATING IN UTAH, WAS ENGAGED
IN THE PREPARATION AND SALE OF FLUXING SCRAP.  BETWEEN APRIL 25, 1942,
AND FEBRUARY 10, 1943, IT SOLD A CONSIDERABLE AMOUNT OF FLUXING SCRAP
TO ONE OF ITS CUSTOMERS, FOR WHICH IT WAS TO BE PAID, IN ADDITION TO
THE CEILING PRICE FOR THE SCRAP, $1.50 PER TON FOR PREPARING THE
SCRAP.  INASMUCH AS THE PETITIONER HAD BEEN NOTIFIED BY THE OFFICE OF
PRICE ADMINISTRATION THAT SUCH A CHARGE WAS A VIOLATION OF THE PRICE
SCHEDULE, IT MERELY BILLED ITS CUSTOMER FOR THE ADDITIONAL $1.50 PER
TON BUT ABSTAINED FROM COLLECTING IT, SO AS TO AVOID THE PENAL
PROVISIONS OF THE PRICE CONTROL ACT. 

THE CONTROVERSY CONCERNS PETITIONER'S LAWFUL RIGHT TO COLLECT THIS
PROCESSING CHARGE AS PREVIOUSLY AGREED UPON BETWEEN THE PARTIES TO THE
CONTRACT.  CLAIMING THAT THE PRICE SCHEDULE GOVERNING THE SALES IN
QUESTION WAS INVALID INSOFAR AS IT FAILED TO PERMIT AN ALLOWANCE FOR
PROCESSING, PETITIONERS FILED A PROTEST WITH THE ADMINISTRATOR.  THE
ADMINISTRATOR AND THE EMERGENCY COURT OF APPEALS RULED THAT THE PROTEST
CAME TOO LATE.  IT WAS TIMELY, IN ANY EVENT, ONLY IF THE AMENDMENT TO
SEC. 203(A) OF THE PRICE CONTROL ACT OF 1942 MADE BY SEC. 106 OF THE
STABILIZATION ACT OF 1944, 58 STAT. 632, 638, CAN BE INVOKED AFTER THE
GROUND OF OBJECTION TO A PRICE SCHEDULE HAD BEEN PROSPECTIVELY REMOVED
N1.  FOR THE ADMINISTRATOR HAD COMPLETELY MET PETITIONER'S OBJECTION BY
THE TIME THAT THE PETITIONER COULD AVAIL ITSELF OF WHATEVER ENLARGED
RIGHT OF PROTEST THE 1944 AMENDMENTS CONFERRED.  THE ADMINISTRATOR DID
SO, IN PART, ON DECEMBER 21, 1943, BY AUTHORIZING A REGIONAL OFFICE OF
THE PRICE ADMINISTRATION TO GRANT UPON APPLICATION AN ALLOWANCE OF UP
TO $1.50 PER TON FOR PROCESSING SCRAP; AND ON JUNE 30, 1944, THE VERY
DAY THAT THE ACT OF 1944 BECAME EFFECTIVE, THE SCHEDULE WAS REVISED TO
PERMIT SUCH A CHARGE ON ALL FUTURE SALES OF SCRAP.  9 FED. REG. 7330. 

THIS BRINGS US TO THE CONTROLLING LEGISLATION.  THE PROCEDURE
ESTABLISHED BY THE EMERGENCY PRICE CONTROL ACT OF 1942 AUTHORIZED "ANY
PERSON SUBJECT TO ANY PROVISION" OF A PRICE SCHEDULE ISSUED BY THE
ADMINISTRATOR TO "FILE A PROTEST SPECIFICALLY SETTING FORTH OBJECTIONS
TO ANY SUCH PROVISION," WITH A RIGHT OF APPEAL TO THE EMERGENCY COURT
OF APPEALS FROM DENIAL OF SUCH PROTEST BY THE ADMINISTRATOR.  SECS.
203(A) AND 204(A), 56 STAT. 23, 31.  BUT SUCH PROTEST HAD TO BE MADE
"WITHIN A PERIOD OF SIXTY DAYS AFTER THE EFFECTIVE DATE" OF A PRICE
SCHEDULE.  BY THE STABILIZATION ACT OF JUNE 30, 1944, 58 STAT. 632,
638, CONGRESS AMENDED THE PROCEDURE SO THAT A PROTEST AGAINST ANY
PROVISION OF A PRICE SCHEDULE COULD BE FILED "AT ANY TIME" AFTER THE
EFFECTIVE DATE. 

IF ONE HAD ONLY THE WORDS OF THE 1944 AMENDMENT TO GO ON, IT WOULD BE
DUBIOUS TO INFER THAT CONGRESS HAD NOT ONLY REMOVED THE BAR OF SIXTY
DAYS FOR PROTESTS TO WHICH THE FUTURE MAY GIVE RISE BUT HAD ALSO
REVIVED A RIGHT OF PROTEST WHICH HAD EXPIRED THROUGH NON-USER UNDER THE
ACT OF 1942.  BUT SUCH, IT APPEARS, IS THE MEANING OF THE AMENDMENT. 
ON THIS POINT THE LEGISLATIVE HISTORY IS DECISIVE.  A SENATE REPORT
FURNISHES AN AUTHORITATIVE GLOSS:  "THE COMMITTEE WAS CONCERNED  ... BY
THE FACT THAT IN THE EARLY DAYS OF PRICE CONTROL MANY PEOPLE UNFAMILIAR
WITH THE PROVISIONS OF THE ACT MIGHT HAVE LOST THEIR RIGHT TO CHALLENGE
THE BASIC VALIDITY OF A REGULATION BY EXCUSABLE FAILURES TO FILE A
PROTEST WITHIN THE STATUTORY PERIOD.  THE COMMITTEE THEREFORE
RECOMMENDS THAT WITH RESPECT TO ALL REGULATIONS ISSUED BEFORE JULY 1,
1944, A NEW PERIOD OF 60 DAYS FROM THAT DATE BE PROVIDED FOR THE FILING
OF PROTESTS...."  S. REP. NO. 922, 78TH CONG., 2D SESS. (1944) 10.  IT
WILL BE NOTED THAT THE SENATE PROPOSED A REVIVER OF BARRED CLAIMS FOR
ONLY SIXTY DAYS.  EVEN THIS LIMITATION WAS REMOVED WHEN THE MEASURE WAS
AMENDED BY THE HOUSE AND SUBSEQUENTLY BECAME LAW.  SEE H.R. REP. NO.
1593, 78TH CONG., 2D SESS. (1944) 5; H.R. REP. 1698, 78TH CONG., 2D
SESS. (1944) 21. 

CONGRESS WAS EVIDENTLY IMPRESSED BY THE NEED FOR RELIEF OF RIGHTS
LOST THROUGH WHAT IT DEEMED EXCUSABLE FAILURE TO ENFORCE THEM UNDER THE
ORIGINAL PRICE CONTROL ACT.  SINCE, THEN, CONGRESS LIFTED THE SIXTY-DAY
LIMITATION RETROSPECTIVELY, WE ARE RELIEVED FROM CONSIDERING WHETHER,
IN THE CIRCUMSTANCES OF THIS CASE, PETITIONER'S RIGHT OF PROTEST WOULD
HAVE BEEN BARRED EVEN UNDER THE 1942 ACT SO LONG AS THE CONTROVERTED
PRICE SCHEDULE REMAINED UNMODIFIED.  FN2  BUT THIS TAKES US ONLY PART
OF THE WAY.  WE NEED STILL ASCERTAIN WHETHER THE 1944 AMENDMENT
AUTHORIZES A PROTEST WITHOUT A TIME LIMIT ONLY AGAINST A PRICE SCHEDULE
CONTEMPORANEOUSLY ACTIVE.  DOES IT, THAT IS, PRECLUDE A RIGHT OF
PROTEST LIKE PETITIONER'S AGAINST A SCHEDULE THAT HAD BEEN SUPERSEDED,
ALTHOUGH IT CONTINUES TO GOVERN THE VALIDITY OF TRANSACTIONS THAT
OCCURRED UNDER ITS RULE? 

THE ADMINISTRATOR ARGUES THAT THIS RESTRICTION UPON THE ENLARGEMENT
OF THE RIGHT OF PROTEST MADE BY THE ACT OF 1944 IS IMMANENT IN WHAT
CONGRESS SAID.  THIS IS WHAT CONGRESS SAID:  "AT ANY TIME AFTER THE
ISSUANCE OF ANY REGULATION OR ORDER  ..., OR IN THE CASE OF A PRICE
SCHEDULE, AT ANY TIME AFTER THE EFFECTIVE DATE THEREOF  ...  ANY PERSON
SUBJECT TO ANY PROVISION OF SUCH REGULATION, ORDER, OR PRICE SCHEDULE
MAY, IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE
ADMINISTRATOR, FILE A PROTEST  ..."  WE FIND NOTHING IN THIS LANGUAGE
OF THE 1944 AMENDMENT OF SEC. 203(A), OR IN ITS HISTORY, OR IN ANY
ILLUMINATION OTHERWISE SHED UPON THE TERMS OF THIS LEGISLATION, TO
JUSTIFY READING IN A QUALIFICATION THAT CONGRESS HAS LEFT OUT. 

ALL CONSTRUCTION IS THE ASCERTAINMENT OF MEANING.  AND LITERALNESS
MAY STRANGLE MEANING.  BUT IN CONSTRUING A DEFINITE PROCEDURAL
PROVISION WE DO WELL TO STICK CLOSE TO THE TEXT AND NOT IMPORT
ARGUMENTATIVE QUALIFICATIONS FROM BROAD, UNEXPRESSED CLAIMS OF POLICY. 
INSOFAR AS SUCH CONSIDERATIONS ARE RELEVANT HERE, HOWEVER, THEY TELL
AGAINST CUTTING DOWN THE NATURAL MEANING OF THE LANGUAGE CONGRESS
CHOSE. 

CONGRESS LIBERALIZED THE RIGHT TO CHALLENGE THE VALIDITY OF PRICE
REGULATIONS SO EXTENSIVELY AS IT DID, EVEN REVIVING RIGHTS THERETOFORE
LAPSED, BECAUSE IT FELT, AS WE HAVE SEEN, THAT RIGHTS WERE UNFAIRLY
LOST THROUGH UNFAMILIARITY WITH THE TECHNICAL REQUIREMENTS OF EMERGENCY
LEGISLATION.  PRICE-FIXING IS NOT STATIC; IT IS A CONTINUING PROCESS. 
THE CONSIDERATIONS OF FAIRNESS THAT LED CONGRESS TO GIVE RELIEF ARE THE
SAME WHETHER A REGULATION WAS REVISED OR REMAINED UNCHANGED.  THERE IS
NOT A HINT THAT CONGRESS INTENDED TO DRAW A LINE SO ARTIFICIAL AS THE
ONE THE ADMINISTRATOR WOULD HAVE US DRAW. 

THIS CONCLUSION IS LEFT UNDISTURBED BY THE ARGUMENTS ADVANCED ON
BEHALF OF THE ADMINISTRATOR.  IT IS URGED THAT HE OUGHT NOT TO BE
BURDENED WITH ISSUES ARISING UNDER SUPERSEDED REGULATIONS.  BUT AS A
MATTER OF LAW ENFORCEMENT A REGULATION CONTINUES TO SURVIVE ITS
SUPERSESSION AS A CONTEMPORANEOUS PRICE SCHEDULE.  UNITED STATES V.
HARK, 320 U.S. 531.  THE ADMINISTRATOR HAS THE DUTY OF ENFORCING THE
ACT, AND IN A PROCEEDING FOR SUSPENSION OF A LICENSE OR FOR TREBLE
DAMAGES OR PENALTIES, IT IS IMMATERIAL THAT THE BASIS OF THE SUIT IS
VIOLATION OF A SUPERSEDED PRICE REGULATION.  IT IS ALSO SUGGESTED THAT
THE PROTEST PROCEEDINGS UNDER SEC. 203(A) AS AMENDED ARE NOT AVAILABLE
TO A PROTESTANT IN PETITIONER'S PLIGHT BECAUSE THE VALIDITY OF THE OLD
SCHEDULE MAY BE OTHERWISE TESTED.  THE ONLY OTHER WAY IMPLIES THE
READINESS OF THE CUSTOMER TO PAY THE CONTRACT PRICE FOR THE PROCESSING
CHARGE AND ITS ACCEPTANCE BY THE PETITIONER, SUBJECTING BOTH TO CIVIL
AND CRIMINAL ACTIONS FOR VIOLATIONS OF THE ACT.  WITH THE CONSENT OF
THE TRIAL COURT, THE EMERGENCY COURT OF APPEALS COULD THEN PASS ON THE
SCHEDULE.  SEC. 204(E), 58 STAT. 632, 639; 50 U.S.C. APP. SEC. 924(E). 
IT SURELY DOES NOT COMMEND ITSELF TO GOOD SENSE TO BAR A DIRECT PROTEST
TO THE ADMINISTRATOR SO EASILY JUSTIFIED BY AN UNSTRAINED READING OF
THE ACT, BECAUSE LEAVE MIGHT BE OBTAINED TO LITIGATE THE ISSUE IN A
ROUNDABOUT WAY, INVOLVING VIOLATIONS OF A PRESUMPTIVELY VALID
REGULATION.  AND IN THE EVENT THAT THE ADMINISTRATOR'S INSISTENCE ON
THE VALIDITY OF THE OLD MAXIMUM SCRAP PRICE SCHEDULE IS NOT CHALLENGED
BY VIOLATION, IT COULD NOT BE TESTED BY BRINGING A SUIT ON THE CONTRACT
FOR THE ADDITIONAL PRICE.  YAKUS V. UNITED STATES, 321 U.S. 414. 

FINALLY, APART FROM A CONSTRUCTION OF THE STATUTE WHICH WE ARE BOUND
TO REJECT, THE ADMINISTRATOR SEEKS TO INVOKE "THE GENERAL DOCTRINE OF
LACHES" AGAINST THE PETITIONER, UPON THE PARTICULAR FACTS OF THIS
CASE.  THE EMERGENCY COURT OF APPEALS MAY CONSIDER THAT ISSUE WHEN,
UPON REMAND, IT DISPOSES OF THIS CASE IN CONFORMITY WITH THIS OPINION. 
JUDGMENT REVERSED. 

FN1  SEC. 203(A) READS AS FOLLOWS; THE BRACKETED MATERIAL WAS DELETED
BY THE 1944 AMENDMENT, THE ITALICIZED MATERIAL ADDED BY THAT AMENDMENT:
"(WITHIN A PERIOD OF SIXTY DAYS) AT ANY TIME AFTER THE ISSUANCE OF ANY
REGULATION OR ORDER UNDER SECTION 2, OR IN THE CASE OF A PRICE
SCHEDULE, (WITHIN A PERIOD OF SIXTY DAYS) AT ANY TIME AFTER THE
EFFECTIVE DATE THEREOF SPECIFIED IN SECTION 206, ANY PERSON SUBJECT TO
ANY PROVISION OF SUCH REGULATION, ORDER, OR PRICE SCHEDULE MAY, IN
ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE ADMINISTRATOR, FILE
A PROTEST SPECIFICALLY SETTING FORTH OBJECTIONS TO ANY SUCH PROVISION
AND AFFIDAVITS OR OTHER WRITTEN EVIDENCE IN SUPPORT OF SUCH
OBJECTIONS.  (AT ANY TIME AFTER THE EXPIRATION OF SUCH SIXTY DAYS ANY
PERSON SUBJECT TO ANY PROVISION OF SUCH REGULATION, ORDER, OR PRICE
SCHEDULE MAY FILE SUCH A PROTEST BASED SOLELY ON GROUNDS ARISING AFTER
THE EXPIRATION OF SUCH SIXTY DAYS.)"  56 STAT. 23, 31; 58 STAT. 632,
638; 50 U.S.C. APP. SEC. 923(A). 

FN2  THE PRICE SCHEDULE IN CONTROVERSY WAS REISSUED ON FEBRUARY 21,
1942, 7 FED. REG. 1207, AND THE SIXTY DAYS FOR PROTEST, UNDER THE 1942
ACT, EXPIRED ON APRIL 21, 1942.  BUT IT WAS NOT UNTIL APRIL 25, 1942,
THAT PETITIONER WAS NOTIFIED BY THE O.P.A. THAT THE SCHEDULE APPLIED TO
ITS SALES OF FLUXING SCRAP.  UNDER THE ORIGINAL ACT, THE SIXTY-DAY
LIMITATION DID NOT APPLY TO "A PROTEST BASED SOLELY ON GROUNDS ARISING
AFTER THE EXPIRATION OF SUCH SIXTY DAYS."  WE NEED NOT DECIDE WHETHER
PETITIONER COULD HAVE BROUGHT ITSELF UNDER THIS ESCAPE CLAUSE.  SEE
GALBAN LOBO CO. V. HENDERSON, 132 F.2D 150; UNITED STATES GYPSUM CO. V.
BROWN, 137 F.2D 803; R.E. SCHANZER, INC. V. BOWLES, 141 F.2D 262;
MARLENE LINENS V. BOWLES, 144 F.2D 874. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
























COLLINS V. PORTER, 328 U.S. 46 


NO. 393.  ARGUED FEBRUARY 26, 1946.  - DECIDED APRIL 22, 1946.  -
REVERSED. 


1.  THE DECISION OF THIS CASE ON THE MERITS IS GOVERNED BY UTAH JUNK
CO. V. PORTER, ANTE, P. 39.  P. 49. 

2.  WHILE A SUIT FOR TREBLE DAMAGES UNDER SEC. 205(E) OF THE
EMERGENCY PRICE CONTROL ACT WAS PENDING IN THE DISTRICT COURT AGAINST
PETITIONERS, THEY FILED WITH THE PRICE ADMINISTRATOR A PROTEST UNDER
SEC. 203(A) SEEKING TO HAVE THE REGULATION ON WHICH THE ENFORCEMENT
PROCEEDING WAS BASED DECLARED INVALID OR INAPPLICABLE.  THE PROTEST WAS
DISMISSED BY THE PRICE ADMINISTRATOR, AND PETITIONERS' ENSUING
COMPLAINT IN THE EMERGENCY COURT OF APPEALS WAS DISMISSED BY THAT COURT
WITHOUT OPINION.  UPON A COMPLAINT FILED BY LEAVE OF THE DISTRICT COURT
UNDER SEC. 204(E) OF THE ACT, THE EMERGENCY COURT OF APPEALS SUSTAINED
THE VALIDITY OF THE REGULATION BUT REFUSED TO PASS ON ITS APPLICABILITY
TO PETITIONERS.  HELD THAT THE JUDGMENT OF THE EMERGENCY COURT OF
APPEALS DISMISSING THE COMPLAINT IN THE PROTEST PROCEEDING UNDER SEC.
203(A) WAS NOT RENDERED MOOT BY ITS JUDGMENT SUSTAINING THE VALIDITY OF
THE REGULATION IN THE PROCEEDING UNDER SEC. 204(E).  P. 48. 

3.  THE FACT THAT CONGRESS BY THE 1944 AMENDMENT OF THE EMERGENCY
PRICE CONTROL ACT GRANTED A LIMITED OPPORTUNITY FOR REVIEW OF A
REGULATION BY THE EMERGENCY COURT OF APPEALS BY LEAVE OF A DISTRICT
COURT IN WHICH AN ENFORCEMENT PROCEEDING IS PENDING, NEITHER REPEALED
NOR QUALIFIED THE PROTEST PROCEEDING ORIGINALLY AUTHORIZED BY SEC.
203(A).  THE TWO METHODS OF SECURING A HEARING ON THE VALIDITY AND
APPLICABILITY OF A PRICE REGULATION ARE CUMULATIVE AND NOT
ALTERNATIVE.  P. 49. 

4.  A PERSON AGAINST WHOM A TREBLE DAMAGE SUIT FOR VIOLATION OF A
REGULATION UNDER THE EMERGENCY PRICE CONTROL ACT IS PENDING, IS A
"PERSON SUBJECT TO  ...  SUCH REGULATION" WITHIN THE MEANING OF SEC.
203(A) OF THE ACT, ALTHOUGH THE REGULATION HAS SINCE BEEN REVOKED OR
SUPERSEDED.  UNITED STATES V. HARK, 320 U.S. 531.  P. 49. 

COLLINS ET AL. V. PORTER, PRICE ADMINISTRATOR. 

CERTIORARI TO THE EMERGENCY COURT OF APPEALS. 

PETITIONERS FILED WITH THE PRICE ADMINISTRATOR A PROTEST UNDER THE
EMERGENCY PRICE CONTROL ACT.  THE PRICE ADMINISTRATOR DENIED THE
PROTEST.  THE EMERGENCY COURT OF APPEALS DISMISSED THE PETITIONERS'
COMPLAINT.  THIS COURT GRANTED CERTIORARI.  326 U.S. 710.  REVERSED, P.
49. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE STOCKHOLDERS IN A DISTILLING CORPORATION ON THE
DISSOLUTION OF WHICH IN DECEMBER, 1942, THEY RECEIVED AS THEIR SHARE OF
THE ASSETS WAREHOUSE RECEIPTS COVERING THE BULK WHISKEY OWNED BY THE
CORPORATION.  EARLY IN JANUARY, 1943, THEY SOLD THESE RECEIPTS AT A
PRICE ABOVE THAT FIXED BY THE ADMINISTRATOR FOR BULK WHISKEY, MAXIMUM
PRICE REGULATION 193, 7 FED. REG. 6006(AUGUST 4, 1942), ON THE
ASSUMPTION THAT THE RECEIPTS CONSTITUTED "SECURITIES" EXPRESSLY EXEMPT
FROM THE PRICING PROVISIONS. 

ON THE BASIS OF THE SALE OF THESE CERTIFICATES THE ADMINISTRATOR,
UNDER SEC. 205(E) OF THE EMERGENCY PRICE CONTROL ACT, 56 STAT. 23, 34;
50 U.S.C. APP. SEC. 925(E), BROUGHT A SUIT FOR TREBLE DAMAGES AGAINST
THE PETITIONERS TO RECOVER APPROXIMATELY $6,800,000.  THAT SUIT IS
STILL PENDING.  IN MAY, 1945, PETITIONERS, INVOKING THE AUTHORITY OF
SEC. 203(A), 56 STAT. 23, 31, 58 STAT. 632, 638; 50 U.S.C. APP. SEC.
923(A), SOUGHT TO HAVE THE REGULATION ON WHICH THE ENFORCEMENT
PROCEEDINGS AGAINST THEM WERE BASED DECLARED INVALID OR INAPPLICABLE BY
A PROTEST FILED WITH THE ADMINISTRATOR.  HE DISMISSED IT ON THE
AUTHORITY OF THOMAS PAPER STOCK CO. V. BOWLES, 148 F.2D 831, THE RULING
OF WHICH WE HAVE REVERSED IN UTAH JUNK CO. V. PORTER, DECIDED THIS DAY,
ANTE, P. 39.  PETITIONERS THEN WENT TO THE EMERGENCY COURT, WHICH
DISMISSED THE COMPLAINT WITHOUT OPINION, AND WE GRANTED CERTIORARI. 
326 U.S. 710.  PRIOR TO THE PETITION FOR CERTIORARI, PETITIONERS
OBTAINED LEAVE OF THE TRIAL COURT IN THE TREBLE DAMAGE ACTION TO FILE A
COMPLAINT WITH THE EMERGENCY COURT UNDER SEC. 204(E) OF THE ACT, 58
STAT. 632, 639, 50 U.S.C. APP. SEC. 925(E), AND ON JANUARY 10, 1946,
THAT COURT SUSTAINED THE VALIDITY OF THE REGULATION.  COLLINS V.
BOWLES, 152 F.2D 760. 

THE GOVERNMENT CONTENDS THAT THE LATTER DECISION OF THE EMERGENCY
COURT RENDERS MOOT THE JUDGMENT OF THAT COURT DISMISSING THE COMPLAINT,
WHICH IS THE ONLY JUDGMENT NOW BEFORE US. THIS COURT IS POWERLESS TO
DECIDE A CASE IF ITS DECISION "CANNOT AFFECT THE RIGHTS OF THE
LITIGANTS IN THE CASE BEFORE IT."  ST. PIERRE V. UNITED STATES, 319
U.S. 41, 42.  THE DECISION OF THIS CASE MAY AFFECT THE RIGHTS OF THE
LITIGANTS.  THE EMERGENCY COURT SUSTAINED THE CHALLENGED REGULATION. 
IT REFUSED TO PASS ON THE APPLICABILITY OF THE REGULATION TO THE
PETITIONERS.  IT LEFT THAT QUESTION TO THE DISTRICT COURT BEFORE WHICH
THE TREBLE DAMAGE SUIT IS PENDING.  HAD PETITIONERS' CONTENTIONS COME
BEFORE THE EMERGENCY COURT THROUGH THE PROTEST PROCEEDINGS UNDER SEC.
203(A) THAT COURT WOULD HAVE ADJUDICATED BOTH ISSUES.  CONKLIN PEN CO.
V. BOWLES, 152 F.2D 764; COLLINS V. BOWLES, SUPRA.  AND IN THE EVENT
THAT THE EMERGENCY COURT HAD FOUND THE REGULATION INAPPLICABLE AND SUCH
DECISION HAD BEEN MADE BEFORE A JUDGMENT WAS RENDERED IN THE DISTRICT
COURT, ITS RULING WOULD BE BINDING UPON THE DISTRICT COURT.  UNDER SEC.
204(E)(2)(II), CONSIDERATION OF A PROTEST UNDER SEC. 203(A) IS NOT A
GROUND FOR STAYING THE PROCEEDINGS IN THE DISTRICT COURT, SINCE THE
PROTEST PROCEEDING DID NOT PRECEDE THE SUIT IN THE DISTRICT COURT; AND
UNDER THE SAME PROVISIONS OF THE ACT DETERMINATION OF THE PROTEST
PROCEEDING UNDER SEC. 203(A) CAN HAVE NO RETROACTIVE EFFECT ONCE THE
DISTRICT COURT HAS ENTERED ITS JUDGMENT.  BUT THE OPPORTUNITY FOR
SECURING A DECISION FROM THE EMERGENCY COURT THROUGH THE PROTEST
PROCEEDING BEFORE A JUDGMENT IN THE DISTRICT COURT IS ENTERED, HAS
PRACTICAL SIGNIFICANCE AND MAKES THIS A LIVING AND NOT A HYPOTHETICAL
CONTROVERSY. 

ON THE MERITS THE CASE IS GOVERNED BY OUR DECISION IN UTAH JUNK CO.
V. PORTER.  THE PETITIONERS IN THIS CASE HAD A RIGHT TO HAVE THEIR
PROTESTS CONSIDERED BY THE ADMINISTRATOR AND, IN CASE OF DENIAL, TO
RESORT TO THE EMERGENCY COURT OF APPEALS.  THE FACT THAT CONGRESS IN
1944 GAVE A LIMITED OPPORTUNITY TO GO TO THE EMERGENCY COURT BY LEAVE
OF THE DISTRICT COURT BEFORE WHICH AN ENFORCEMENT PROCEEDING IS
PENDING, SEC. 204(E), NEITHER REPEALED NOR QUALIFIED THE PROTEST
PROCEEDING ORIGINALLY DESIGNED BY SEC. 203(A).  THE TWO MODES OF
SECURING A HEARING ON THE VALIDITY AND APPLICABILITY OF THE PRICE
REGULATION ARE CUMULATIVE AND NOT ALTERNATIVE.  THE ADMINISTRATOR
ADVANCES NO ARGUMENT TO DISTINGUISH THE CASE FROM THAT OF UTAH JUNK CO.
V. PORTER.  HIS CONTENTION THAT THE PETITIONERS ARE NOT PERSONS
"SUBJECT TO  ...  (THE) REGULATION," SEC. 203(A), IS AMPLY REFUTED BY
THE CONTINUING LIABILITY OF THE PETITIONERS, UNITED STATES V. HARK, 320
U.S. 531, FOR SOME $6,800,000, SHOULD THEIR ARGUMENTS AS TO THE
INVALIDITY AND INAPPLICABILITY OF THE REGULATION BE REJECTED WHEN THE
CASE IS CONSIDERED ON THE MERITS. 

IT IS SUPERFLUOUS TO DISCUSS OTHER ISSUES RAISED IN THIS CASE. 
JUDGMENT REVERSED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










THOMAS PAPER STOCK CO. V. PORTER, 328 U.S. 50 


NOS. 67 AND 578.  ARGUED FEBRUARY 25, 26, 1946.  - DECIDED APRIL 22,
1946.  - 151 F.2D 345, REVERSED. 


1.  THE TAFT AMENDMENT TO THE EMERGENCY PRICE CONTROL ACT NULLIFIED
PRICE SCHEDULES BASED ON STANDARDS, AND NO SUCH SCHEDULES COULD BE
VALID AFTER THAT AMENDMENT UNLESS AND UNTIL THE PRICE ADMINISTRATOR
"DETERMINED" THAT NO OTHER METHOD OF PRICE CONTROL WAS PRACTICABLE.  P.
53. 

2.  SALES OF WASTEPAPER BETWEEN JULY 16, 1943, THE EFFECTIVE DATE OF
THE TAFT AMENDMENT, AND SEPTEMBER 11, 1943, THE DATE WHEN THE PRICE
ADMINISTRATOR DETERMINED THAT OTHER THAN BY STANDARDIZATION NO METHOD
OF EFFECTIVE PRICE CONTROL OF SUCH COMMODITY WAS PRACTICABLE, DID NOT
SUBJECT THE SELLERS TO THE PENALTIES OF THE EMERGENCY PRICE CONTROL
ACT, EVEN THOUGH SUCH SALES WERE AT PRICES IN EXCESS OF A PRE-TAFT
AMENDMENT MAXIMUM PRICE BASED ON A STANDARD.  PP. 51-52, 56. 

3.  THE ACCOMMODATION OF THE VARIOUS INTERESTS INVOLVED IN A SYSTEM
OF PRICE CONTROL IS FOR CONGRESS, NOT THE COURTS; AND THE LEGISLATION
IS TO BE SO CONSTRUED AS TO GIVE EFFECT TO THE WILL OF CONGRESS.  P.
55. 

THOMAS PAPER STOCK CO. ET AL. V. PORTER, PRICE ADMINISTRATOR. 

CERTIORARI TO THE EMERGENCY COURT OF APPEALS. 

NO. 578.  BY LEAVE OF THE DISTRICT COURT IN WHICH A PROSECUTION OF
THE PETITIONERS FOR VIOLATION OF A REGULATION UNDER THE EMERGENCY PRICE
CONTROL ACT WAS PENDING, PETITIONERS SOUGHT IN THE EMERGENCY COURT OF
APPEALS A DECLARATION OF THE INVALIDITY OF THE REGULATION.  THE
EMERGENCY COURT OF APPEALS SUSTAINED THE VALIDITY OF THE REGULATION. 
151 F.2D 345.  THIS COURT GRANTED CERTIORARI.  326 U.S. 715.  REVERSED,
P. 56. 

NO. 67.  PETITIONERS FILED A PROTEST WITH THE PRICE ADMINISTRATOR
UNDER THE EMERGENCY PRICE CONTROL ACT.  THE PRICE ADMINISTRATOR DENIED
THE PROTEST.  THE EMERGENCY COURT OF APPEALS SUSTAINED THE PRICE
ADMINISTRATOR.  148 F.2D 831.  THIS COURT GRANTED CERTIORARI.  325 U.S.
847.  WRIT OF CERTIORARI DISMISSED, P. 56. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

HAVING BEEN CHARGED WITH VIOLATIONS OF A PRICE REGULATION,
PETITIONERS CHALLENGED ITS VALIDITY BEFORE THE EMERGENCY COURT OF
APPEALS BY TWO DIFFERENT MODES IN TWO SEPARATE ACTIONS.  THE CLAIM OF
INVALIDITY IN BOTH PROCEEDINGS WAS BASED ON THE TAFT AMENDMENT TO THE
PRICE CONTROL ACT.  ADJUDICATION OF THIS CLAIM WILL DISPOSE OF BOTH
CASES WITHOUT CONSIDERATION OF PROCEDURAL ISSUES RAISED BEFORE THE
EMERGENCY COURT. 

THOMAS PAPER STOCK COMPANY, A DEALER IN PAPER SCRAP, AND ITS
PRESIDENT WERE INDICTED UNDER SEC. 205(B) OF THE EMERGENCY PRICE
CONTROL ACT, 56 STAT. 23, 33; 50 U.S.C. APP. SEC. 925(B), FOR THE SALE
OF WASTEPAPER IN VIOLATION OF MAXIMUM PRICE REGULATION NO. 30, 7 FED.
REG. 9732(NOV.  24, 1942).  SECTION 1347.14(D) OF THAT REGULATION FIXED
THE MAXIMUM PRICE FOR UNSORTED WASTEPAPER IN TERMS OF A SPECIFICATION
OR STANDARD.  ID. AT 9735.  ON SIMILAR ALLEGATIONS, THE ADMINISTRATOR
LATER BEGAN AN ACTION AGAINST PETITIONERS FOR TREBLE DAMAGES.  SEC.
205(E), 56 STAT. 23, 34; 50 U.S.C. APP. SEC. 925(E).  BOTH PROCEEDINGS
INVOLVED SALES OF WASTEPAPER BETWEEN JULY 16, 1943 AND SEPTEMBER 11,
1943.  THE DATES ARE CRUCIAL.  JULY 16, 1943 IS THE EFFECTIVE DATE OF
THE TAFT AMENDMENT, THE PROPER CONSTRUCTION OF WHICH IS THE CONTROLLING
ISSUE.  ON SEPTEMBER 11, 1943, THE ADMINISTRATOR, BY AN AMENDMENT TO
THE MAXIMUM PRICE REGULATION NO. 30, "DETERMINED" THAT "NO PRACTICABLE
ALTERNATIVE EXISTS FOR SECURING EFFECTIVE PRICE CONTROL" WITH RESPECT
TO SUCH WASTEPAPER EXCEPT THROUGH THE STANDARDIZATION DEFINED IN THE
PRE-TAFT AMENDMENT MAXIMUM PRICE REGULATION NO. 30.  8 FED. REG.
12554(SEPT.  14, 1943).  THE PROBLEM BEFORE US IS WHETHER, AFTER THE
TAFT AMENDMENT, SALES OF WASTEPAPER WERE GOVERNED BY A MAXIMUM PRICE
BASED ON A STANDARD, PRIOR TO THE DETERMINATION BY THE ADMINISTRATOR ON
SEPTEMBER 11, 1943 THAT THERE WAS NO PRACTICABLE ALTERNATIVE TO SUCH
STANDARDIZATION. 

AND SO WE TURN TO THE TAFT AMENDMENT.  IT ADDED SUBSECTION (J) TO
SEC. 2 OF THE EMERGENCY PRICE CONTROL ACT.  THE RELEVANT PROVISIONS OF
THE TAFT AMENDMENT ARE THESE: 

"(J)  NOTHING IN THIS ACT SHALL BE CONSTRUED  ...  (3) AS AUTHORIZING
THE ADMINISTRATOR TO STANDARDIZE ANY COMMODITY, UNLESS THE
ADMINISTRATOR SHALL DETERMINE, WITH RESPECT TO SUCH STANDARDIZATION,
THAT NO PRACTICABLE ALTERNATIVE EXISTS FOR SECURING EFFECTIVE PRICE
CONTROL WITH RESPECT TO SUCH COMMODITY; OR (4) AS AUTHORIZING ANY ORDER
OF THE ADMINISTRATOR FIXING MAXIMUM PRICES FOR DIFFERENT KINDS,
CLASSES, OR TYPES OF A COMMODITY WHICH ARE DESCRIBED IN TERMS OF
SPECIFICATIONS OR STANDARDS, UNLESS SUCH SPECIFICATIONS OR STANDARDS
WERE, PRIOR TO SUCH ORDER, IN GENERAL USE IN THE TRADE OR INDUSTRY
AFFECTED, OR HAVE PREVIOUSLY BEEN PROMULGATED AND THEIR USE LAWFULLY
REQUIRED BY ANOTHER GOVERNMENT AGENCY."  57 STAT. 566; 50 U.S.C. APP.
SEC. 902(J). 

WE AGREE WITH THE EMERGENCY COURT THAT CONGRESS THUS PROVIDED "THREE
ALTERNATIVE SITUATIONS IN ANY ONE OF WHICH (THE ADMINISTRATOR) IS
AUTHORIZED TO EMPLOY SPECIFICATIONS OR STANDARDS IN CONNECTION WITH
PRICE CONTROL."  THOMAS PAPER STOCK CO. V. BOWLES, 148 F.2D 831, 835. 
THUS, IN THE CASE OF WASTEPAPER, STANDARDIZATION IS PERMITTED UNDER
CLAUSE (3) OF THE AMENDMENT ALTHOUGH THE ADMINISTRATOR MAY DEFINE A
STANDARD WHICH "HAD NOT PREVIOUSLY BEEN USED BY THE WASTEPAPER INDUSTRY
OR REQUIRED BY ANOTHER GOVERNMENT AGENCY."  ID. AT 837.  BUT WE ARE
ALSO OF OPINION THAT BEGINNING WITH JULY 16, 1943, THE DAY THE TAFT
AMENDMENT CAME INTO FORCE, IT PRECLUDED STANDARDIZED COMMODITY PRICES
UNLESS AND UNTIL THE ADMINISTRATOR "DETERMINED" THAT NO OTHER METHOD OF
PRICE CONTROL WAS PRACTICABLE.  THE TERMS OF THE AMENDMENT, IN THE
CIRCUMSTANCES OF ITS SETTING, SEE, E.G., H.R. REP. NO. 697, 78TH CONG.,
1ST SESS. (1943), BRING US TO THIS CONCLUSION, BUT WE NEED ADD LITTLE
TO THE FULL DISCUSSION THE TAFT AMENDMENT RECEIVED IN THE OPINION OF
THE COURT AND THAT OF THE DISSENT BELOW.  THOMAS PAPER STOCK CO. V.
BOWLES, 151 F.2D 345.  FOR US THE DECISIVE CONSIDERATION IS THAT THE
AMENDMENT WAS A RIGOROUS LIMITATION UPON THE POWERS OF THE
ADMINISTRATOR BASED UPON THE CONGRESSIONAL VIEW THAT STANDARDIZATIONS
OUTSTANDING AT THE TIME THE TAFT AMENDMENT WAS PASSED HAD NOT BEEN
AUTHORIZED BY THE MORE GENERAL LANGUAGE OF THE ORIGINAL ACT.  SEC.
2(H), 56 STAT. 23, 27; 50 U.S.C. APP. SEC. 902(H).  FN1  ACCORDINGLY,
CONGRESS LAID DOWN A SPECIFIC REQUIREMENT FOR THE VALIDITY OF PRICES
BASED ON STANDARDS, AND A FAIR READING OF THE AMENDMENT IN THE LIGHT OF
ITS HISTORY REQUIRES THAT THE ADMINISTRATOR MUST INDICATE THAT HE HAS
FULFILLED THIS REQUIREMENT.  SEE UNITED STATES V. B. & O.R. CO., 293
U.S. 454.  IT WOULD HARDLY SATISFY THE RESTRICTION WHICH THE TAFT
AMENDMENT PLACED UPON THE ADMINISTRATOR'S POWER TO STANDARDIZE TO ALLOW
HIM TO CONTINUE SITUATIONS WHICH, AS CONGRESS THOUGHT, NEEDED
CORRECTION. 

IN SIGNING THE JOINT RESOLUTION CONTAINING THE TAFT AMENDMENT, THE
PRESIDENT DID SO WITH THE UNDERSTANDING THAT IT "PRESERVED POWER IN THE
ADMINISTRATOR TO 'STANDARDIZE' A COMMODITY IN ANY CASE ON WHICH THIS
WAS ABSOLUTELY ESSENTIAL TO AN EFFECTIVE SYSTEM OF FIXING PRICES."  SEE
STATEMENT OF PRICE ADMINISTRATOR'S REASONS INVOLVED IN THE ISSUANCE OF
SUPPLEMENTARY ORDER NO. 64(SEPT.  11, 1943).  CONGRESS THUS GAVE POWER
TO STANDARDIZE; IT DID NOT STEREOTYPE PAST STANDARDIZATIONS.  WITH
ENTIRE CANDOR THE ADMINISTRATOR CONCEDED HERE THAT HE "HAD MANY
REGULATIONS OUTSTANDING WHICH REQUIRED RE-EXAMINATION IN THE LIGHT OF
THE TERMS OF THE TAFT AMENDMENT."  BUT ALTHOUGH THE AMENDMENT
APPARENTLY HAD THE ACQUIESCENCE OF THE ADMINISTRATOR, IT CONTAINS NO
SAVING CLAUSE THAT ALL OUTSTANDING STANDARDIZING REGULATIONS WERE TO BE
DEEMED CONTINUINGLY VALID, NOR IS THERE ANY INTIMATION WARRANTING SUCH
AN IMPLIED LIMITATION.  THE COURT BELOW SEEMED TO RECOGNIZE THE DUTY OF
A MANIFESTED DETERMINATION BY THE ADMINISTRATOR OF THE NEED FOR A
STANDARDIZED PRICE BY SUGGESTING THAT THE ADMINISTRATOR SHOWED
"REASONABLE PROMPTNESS" IN MAKING THE DETERMINATION APPLICABLE TO
WASTEPAPER WITHIN TWO MONTHS AFTER THE TAFT AMENDMENT.  BUT CONGRESS
DID NOT SANCTION STANDARDIZATION FOR WHAT WE MAY DEEM A REASONABLE
PERIOD AFTER THE ENACTMENT OF THE TAFT AMENDMENT WITHOUT THE
ADMINISTRATOR'S DETERMINATION OF ITS NEED. 

THIS IS TOO SUBSTANTIAL A QUALIFICATION TO BE MADE BY JUDICIAL
INTERPOLATION.  NOR CAN WE DRAW ON BROAD ARGUMENTS ABOUT INFLATIONARY
PRESSURES ON PRICE CONTROL IN CONSTRUING LEGISLATION DEALING WITH SO
TECHNICALLY CONFINING A PROVISION AS THAT OF THE TAFT AMENDMENT.  THE
LEGISLATION WAS TOO SPECIFICALLY DIRECTED AGAINST PRIOR UNAUTHORIZED
REGULATIONS, PROMULGATED NO DOUBT WITH THE BEST OF MOTIVES IN THE GREAT
EFFORT AGAINST INFLATION, FOR US TO GIVE IT A MEANING OTHER THAN THAT
WHICH THE LANGUAGE IN THE CONTEXT OF ITS HISTORY YIELDS.  OF COURSE,
ALL PROVISIONS OF THE EMERGENCY PRICE CONTROL ACT ARE INFUSED BY ITS
FARREACHING AIMS.  BUT THE ACCOMMODATION OF THE VARIOUS INTERESTS
INVOLVED IN A SYSTEM OF PRICE CONTROL IS FOR CONGRESS AND NOT FOR US,
AND WE MUST CONSTRUE ITS LEGISLATION AS FAIRLY AS WE CAN TO CATCH THE
WILL BEHIND THE WORDS.  THAT THE CONSTRUCTION WE HAVE PLACED UPON THE
TAFT AMENDMENT DOES NOT TOUCH THE VITAL FORCES IN PRICE CONTROL IS
INDICATED BY THE GOVERNMENT'S OPPOSITION TO A REVIEW OF THIS LITIGATION
ON THE GROUND THAT IT WAS DEVOID OF MUCH PRACTICAL SIGNIFICANCE. 

IT ONLY REMAINS TO UNSNARL THE COMPLICATED PROCEDURES BY WHICH THE
PETITIONERS SOUGHT TO ESTABLISH THE INVALIDITY OF THE REGULATION WHICH
THEY WERE CHARGED WITH VIOLATING.  ON JUNE 15, 1944, PETITIONERS FILED
A PROTEST AGAINST SEC. 1347.14(D) UNDER SEC. 203(A) OF THE ACT.  56
STAT. 23, 31, 58 STAT. 632, 638; 50 U.S.C. APP. SEC. 923(A).  BY THIS
TIME, AS HAS BEEN NOTED, THE ADMINISTRATOR HAD AMENDED THE REGULATION
TO CONFORM IN TERMS WITH THE TAFT AMENDMENT.  THE ADMINISTRATOR DENIED
THE PROTEST ON THE MERITS AND ALSO EXPRESSED DOUBT AS TO HIS POWER TO
CONSIDER THE VALIDITY OF A REGULATION OF WHICH THE ALLEGED DEFECTS HAD
BEEN CURED.  THE EMERGENCY COURT OF APPEALS SUSTAINED THE ADMINISTRATOR
ON THE GROUND THAT A CORRECTED REGULATION BARS PROTEST.  THOMAS PAPER
STOCK CO. V. BOWLES, 148 F.2D 831.  WE THEN BROUGHT THE CASE HERE AS
ONE OF A SERIES OF CASES RAISING IMPORTANT ISSUES IN THE ENFORCEMENT OF
THE EMERGENCY PRICE CONTROL ACT.  326 U.S. 715. 

IN THE MEANTIME PETITIONERS INVOKED SEC. 204(E) OF THE ACT, 58 STAT.
632, 639; 50 U.S.C. APP. SEC. 924(E), WHEREBY THEY SOUGHT LEAVE TO FILE
A COMPLAINT DIRECTLY WITH THE EMERGENCY COURT.  THE DISTRICT COURT,
BEFORE WHICH THE CRIMINAL PROSECUTION WAS PENDING, GRANTED SUCH LEAVE
PURSUANT TO SEC. 204(E).  THE EMERGENCY COURT THEN PASSED ON THE MERITS
OF THE CLAIM OF THE INVALIDITY OF THE REGULATION IN CONTROVERSY BETWEEN
THE DATE OF THE TAFT AMENDMENT AND SEPTEMBER 11, 1943, WHEN IN SUPP.
ORDER 64, 8 FED. REG. 12554, THE ADMINISTRATOR DETERMINED THE NECESSITY
FOR STANDARDS.  THAT COURT, AS WE HAVE SEEN, HELD THAT THE OLD
REGULATION SURVIVED THE TAFT AMENDMENT, THOMAS PAPER STOCK CO. V.
BOWLES, 151 F.2D 345, AND WE GRANTED CERTIORARI.  326 U.S. 715. 

IT IS THIS LATTER JUDGMENT, IN NO. 578, THAT WE NOW REVERSE WITH THE
RESULT THAT DISREGARD OF THE REGULATION BASED ON STANDARDIZED PRICES
FOR WASTEPAPER NOT "DETERMINED" BY THE ADMINISTRATOR PRIOR TO SEPTEMBER
11, 1943, DOES NOT SUBJECT PETITIONERS TO THE PENALTIES OF THE PRICE
CONTROL ACT.  IN VIEW OF DISPOSITION IN NO. 578 OF THE MERITS OF
PETITIONER'S CLAIM OF INVALIDITY UNDER THE TAFT AMENDMENT IT WOULD BE
FUTILE TO DECIDE THE ISSUE ON WHICH JUDGMENT WENT IN NO. 67. 
ACCORDINGLY, THE WRIT OF CERTIORARI ISSUED IN NO. 67 WILL BE
DISMISSED. 

FN1  "THE POWERS GRANTED IN THIS SECTION SHALL NOT BE USED OR MADE TO
OPERATE TO COMPEL CHANGES IN THE BUSINESS PRACTICES, COST PRACTICES OR
METHODS, OR MEANS OR AIDS TO DISTRIBUTION, ESTABLISHED IN ANY INDUSTRY,
EXCEPT TO PREVENT CIRCUMVENTION OR EVASION OF ANY REGULATION, ORDER,
PRICE SCHEDULE, OR REQUIREMENT UNDER THIS ACT." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE BLACK, DISSENTING. 

THE JUDGMENT WHICH THE COURT JUST RENDERED PERMITS THESE PETITIONERS
AND OTHERS TO KEEP PROFITS OBTAINED FROM SALES MADE AT INFLATIONARY
PRICES EXPRESSLY PROHIBITED BY MAXIMUM PRICE REGULATION NO. 30.  THAT
REGULATION ESTABLISHES DOLLAR AND CENT CEILING PRICES FOR THIRTY-TWO
GRADES OF WASTEPAPER DEFINED BY THE PRICE ADMINISTRATOR.  IT IS THE
TYPE OF REGULATION, OF WHICH THERE HAVE BEEN MANY, WHICH CONTROLS
PRICES BY FIRST STANDARDIZING OR GROUPING SIMILAR COMMODITIES, AND THEN
FIXING ONE AND THE SAME MAXIMUM PRICE FOR EACH OF THE COMMODITIES IN A
PARTICULAR CLASSIFICATION.  ON JULY 16, 1943, LONG AFTER REGULATION NO.
30 WAS PROMULGATED AND FULLY IN FORCE, CONGRESS ADDED THE TAFT
AMENDMENT (SEC. 2(J)) TO THE EMERGENCY PRICE CONTROL ACT OF 1942.  THE
COURT HOLDS THAT CONGRESS INTENDED BY THIS AMENDMENT TO INVALIDATE
AUTOMATICALLY PRICE REGULATION NO. 30, AND ALL THE NUMEROUS REGULATIONS
LIKE IT, UNTIL SUCH TIME AS THE PRICE ADMINISTRATOR SHOULD FIND IT
POSSIBLE, AMIDST ALL HIS PRESSING DUTIES, TO INVESTIGATE AND MAKE
DETERMINATIONS, FORMALLY EXPRESSED IN WRITING, THAT ONLY BY
STANDARDIZING OR GROUPING CERTAIN COMMODITIES COULD PRICE CONTROL OVER
THEM BE SUCCESSFULLY ENFORCED.  SINCE THE TASK OF RECHECKING ALL PAST
REGULATIONS WHICH CONTAINED STANDARDIZATION PROVISIONS WAS VERY GREAT,
THE ADMINISTRATOR DID NOT FIND TIME TO REACH THE REGULATION HERE
INVOLVED UNTIL TWO MONTHS AFTER THE AMENDMENT'S ENACTMENT.  THE COURT
HOLDS THAT DURING THIS INTERVAL THE PUBLIC HAD NO PROTECTION WHATEVER
FROM INFLATIONARY PRICES PROHIBITED BY THIS REGULATION.  IN MY OPINION
THIS HOLDING FINDS SUPPORT NEITHER IN THE SECTION'S LANGUAGE NOR ITS
LEGISLATIVE HISTORY. 

WHEN THE SPONSOR OF THE TAFT AMENDMENT OFFERED IT ON THE SENATE FLOOR
HIS STATEMENT CLEARLY INDICATED THAT IT GREW OUT OF COOPERATIVE EFFORT
BETWEEN THE LEGISLATORS AND THE PRICE ADMINISTRATOR, WHO CERTAINLY
WOULD NOT BE INTERESTED IN THROWING A MONKEY WRENCH INTO O.P.A.'S
ENFORCEMENT OF THE EXISTING REGULATIONS.  REFERRING TO PROVISIONS OF
THE ACT WHICH HIS AMENDMENT WAS INTENDED TO CLARIFY, SENATOR TAFT SAID:
"PRICE ADMINISTRATOR BROWN CAME BEFORE THE COMMITTEE AND URGED THAT IT
WOULD SERIOUSLY HAMPER HIS PRICE REGULATIONS IN A NUMBER OF TRADES,
REGULATIONS FOR WHICH HAD ALREADY BEEN ISSUED, TO MANY OF WHICH THERE
WAS NO OBJECTION.  HE SUBMITTED ANOTHER FORM OF AMENDMENT, CARRYING OUT
THE SAME PURPOSE, BUT MAKING IT PERFECTLY CLEAR THAT IT WOULD NOT
INTERFERE WITH THOSE REGULATIONS, WHICH ARE PROPER."  CONG. REC. JULY
6, 1943, VOL. 89, P. 7251.    IN SPITE OF THIS CLEAR DECLARATION ON THE
PART OF SENATOR TAFT OF HIS INTENTION TO SAVE "PROPER" EXISTING
REGULATIONS, THE COURT NOW GIVES THE TAFT PRICE ADMINISTRATOR AMENDMENT
A MEANING WHICH DOES "INTERFERE WITH THOSE REGULATIONS."  IT NOT ONLY
INTERFERES WITH THEM; IT COMPLETELY DESTROYS THEIR EFFECTIVENESS FOR AN
INDEFINITE INTERVAL OF TIME.  THESE PETITIONERS AND OTHERS ARE WHOLLY
FREED FROM ANY POSSIBLE PENALTY FOR DELIBERATE INFLATIONARY
OVERCHARGES, FORBIDDEN BY CONGRESS, DURING THE PERIOD BETWEEN THE
PASSAGE OF THE AMENDMENT AND THE ADMINISTRATOR'S PUBLICATION OF HIS
DETERMINATIONS.  THAT THE REGULATION HERE INVOLVED WAS A "PROPER"
REGULATION ON THE DAY THE TAFT AMENDMENT WAS PASSED IS CONCEDED.  THAT
ITS STANDARDIZATION PROVISIONS WERE AT ALL TIMES NECESSARY TO THE
EFFECTIVE ENFORCEMENT OF THE ACT IS SHOWN BOTH BY THE ADMINISTRATOR'S
LATER FINDINGS AND BY HIS ORIGINAL PROMULGATION.  CONSEQUENTLY, IT IS
THIS COURT, AND NOT THE CONGRESS, WHICH MUST TAKE THE RESPONSIBILITY
FOR PERMITTING PETITIONERS TO VIOLATE THE PRICE REGULATION WITH
IMPUNITY. 

FURTHERMORE, THE TAFT AMENDMENT'S LANGUAGE OFFERS NO SUPPORT FOR THE
COURT'S DECISION.  FOR BY ITS TERMS IT NEITHER REPEALS NOR RENDERS
UNENFORCEABLE OR INEFFECTIVE VALID OUTSTANDING REGULATIONS WHICH
STANDARDIZE COMMODITIES.  AND IN ADDITION TO WHAT HAS ALREADY BEEN
POINTED OUT, THE PREVAILING CIRCUMSTANCES AT THE TIME OF ITS ENACTMENT
MAKE IT HIGHLY IMPROBABLE THAT CONGRESS INTENDED SUCH A RESULT.  AT THE
TIME THE AMENDMENT WAS ENACTED THE THREAT OF INFLATION WAS THE GREATEST
SINCE THE OUTBREAK OF THE WAR.  JUST IN APRIL THE PRESIDENT HAD THOUGHT
IT NECESSARY TO ISSUE HIS WELL-KNOWN "HOLD-THE-LINE ORDER" IN ORDER TO
TIGHTEN CONTROLS DESIGNED TO STEM THE INFLATIONARY TREND.  PURCHASING
POWER WAS VERY GREAT AND CONSUMER GOODS HAD BECOME EXTREMELY SCARCE. 
HAD CONGRESS REALLY INTENDED TO PROTECT THE PUBLIC AGAINST INFLATION,
AS ITS LEGISLATION SHOWS IT DID, IT WOULD NOT HAVE CHOSEN THIS TIME FOR
RELAXING GOVERNMENT CONTROLS.  THE GIVING OF FREE REIGN TO INFLATIONARY
PRESSURE WAS LIKELY TO ENDANGER SERIOUSLY OUR ECONOMY AND TO BRING
GREAT HARDSHIP TO MANY INDIVIDUALS.  I CANNOT, WITHOUT A CLEAR
DECLARATION TO THAT EFFECT WITH RESPECT TO ANY PART OF OUR ECONOMY,
IMPUTE TO CONGRESS AN INTENT TO LET INFLATION RUN RIOT DURING SUCH
CRITICAL TIMES.  I CANNOT CONCLUDE, THEREFORE, AS THE OPINION OF THE
COURT NECESSARILY DOES, THAT CONGRESS INTENDED TO SUSPEND ALL MAXIMUM
PRICE REGULATIONS CONTAINING STANDARDIZATION PROVISIONS UNTIL THE PRICE
ADMINISTRATOR REVIEWED THEM. 

WHAT THEN WAS THE PURPOSE OF CONGRESS IN ENACTING THE TAFT
AMENDMENT?  THE MANAGERS ON THE PART OF THE HOUSE THUS STATED THE
MEET THE OBJECTION THAT THE PRICE ADMINISTRATOR HAS EXCEEDED THE
LIMITATIONS EXPRESSED IN SECTION 2(H) OF  ...  (THE 1942 PRICE CONTROL
ACT) IN ISSUING CERTAIN REGULATIONS ALREADY PROMULGATED."  SECTION 2(H)
PROVIDES:  "THE POWERS GRANTED  ...  SHALL NOT BE USED OR MADE TO
OPERATE TO COMPEL CHANGES IN THE BUSINESS PRACTICES, COST PRACTICES OR
METHODS, OR MEANS OR AIDS TO DISTRIBUTION, ESTABLISHED IN ANY INDUSTRY,
EXCEPT TO PREVENT CIRCUMVENTION OR EVASION OF ANY REGULATION, ORDER,
PRICE SCHEDULE, OR REQUIREMENT UNDER THIS ACT."  AS THE CONFERENCE
REPORT INDICATES, THE TAFT AMENDMENT ACTUALLY ADDED LITTLE NEW, IF
ANYTHING AT ALL, TO THE REQUIREMENTS ALREADY CONTAINED IN SEC. 2(H). 
IT WAS MERELY AN EXPLANATION AND ELABORATION OF ONE PHASE OF THE
REQUIREMENTS OF SEC. 2(H).  ANY REGULATION, INCLUDING THE ONE HERE HELD
INVALID, THAT WAS PROMULGATED WHEN SEC. 2(H) WAS IN EFFECT HAD TO MEET
ITS REQUIREMENTS.  AS LATER EXPLAINED BY THE TAFT AMENDMENT, THE
REQUIREMENTS OF SEC. 2(H) WHICH PERMITTED THE ADMINISTRATOR TO REQUIRE
CHANGED BUSINESS PRACTICES TO PREVENT "CIRCUMVENTION OR EVASION"
INCLUDED, IN THE CASE OF REGULATIONS CONTAINING NEW STANDARDIZATION
PROVISIONS, A DETERMINATION THAT THERE WAS NO PRACTICAL ALTERNATIVE TO
EFFECTIVE PRICE CONTROL.  ALL STANDARDIZATION PROVISIONS, INCLUDING THE
ONE HERE HELD INVALID, IN ORDER TO BE VALID UNDER THE OLD SEC. 2(H) HAD
TO BE BASED ON SUCH A DETERMINATION.  THE TAFT AMENDMENT WAS NOT, AS
THE COURT NOW HOLDS, A DECLARATION BY CONGRESS THAT ALL PAST
STANDARDIZATION PROVISIONS HAD NOT BEEN BASED ON SUCH A DETERMINATION
AND THAT THEY WERE THEREFORE INVALID.  HERE THE REGULATION IN QUESTION
WAS PROMULGATED WHILE SEC. 2(H) WAS IN FULL FORCE AND EFFECT.  NOT ONLY
DID PETITIONERS FAIL TO SHOW THAT THE REGULATION WAS NOT BASED ON THE
DETERMINATION REQUIRED BY SEC. 2(H) AS EXPLAINED BY THE TAFT AMENDMENT,
BUT THE ADMINISTRATOR, AFTER THE AMENDMENT WAS ENACTED, AND BEFORE ANY
PROCEEDINGS WERE BROUGHT AGAINST PETITIONERS, DOUBLE CHECKED THE
REGULATION TO MAKE SURE THAT IT WAS BASED ON THE DETERMINATION
REQUIRED.  IT IS NOT DENIED, AND APPARENTLY CANNOT BE DENIED, THAT IT
WAS ABSOLUTELY NECESSARY FOR THE ADMINISTRATOR TO ORDER THESE CHANGED
STANDARDIZATION PRACTICES IN ORDER TO PREVENT CIRCUMVENTION OR
EVASION.  IN MY OPINION, THEREFORE, THE WASTEPAPER PROVISIONS OF
MAXIMUM PRICE REGULATION NO. 30 WERE VALID AT ALL TIMES, SINCE THEY MET
THE REQUIREMENTS OF SEC. 2(H) AS EXPLAINED BY SEC. 2(J).  I WOULD
AFFIRM THE JUDGMENT BELOW, WHICH DISMISSED THE COMPLAINT. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :






GIROUARD V. UNITED STATES, 328 U.S. 61 


NO. 572.  ARGUED MARCH 4, 1946.  - DECIDED APRIL 22, 1946.  - 149 F.2D
760, REVERSED. 


AN ALIEN WHO IS WILLING TO TAKE THE OATH OF ALLEGIANCE AND TO SERVE IN
THE ARMY AS A NON-COMBATANT BUT WHO, BECAUSE OF RELIGIOUS SCRUPLES, IS
UNWILLING TO BEAR ARMS IN DEFENSE OF THIS COUNTRY MAY BE ADMITTED TO
CITIZENSHIP UNDER THE NATIONALITY ACT OF 1940, AS AMENDED BY THE ACT OF
MARCH 27, 1942.  UNITED STATES V. SCHWIMMER, 279 U.S. 644; UNITED
STATES V. MACINTOSH, 283 U.S. 605; AND UNITED STATES V. BLAND, 283 U.S.
636, OVERRULED.  PP. 64-70. 

GIROUARD V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

A DISTRICT COURT ADMITTED PETITIONER TO CITIZENSHIP.  THE CIRCUIT
COURT OF APPEALS REVERSED.  149 F.2D 760.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 714.  REVERSED, P. 70. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1943 PETITIONER, A NATIVE OF CANADA, FILED HIS PETITION FOR
NATURALIZATION IN THE DISTRICT COURT OF MASSACHUSETTS.  HE STATED IN
HIS APPLICATION THAT HE UNDERSTOOD THE PRINCIPLES OF THE GOVERNMENT OF
THE UNITED STATES, BELIEVED IN ITS FORM OF GOVERNMENT, AND WAS WILLING
TO TAKE THE OATH OF ALLEGIANCE (54 STAT. 1157, 8 U.S.C. SEC. 735(B))
WHICH READS AS FOLLOWS: 

"I HEREBY DECLARE, ON OATH, THAT I ABSOLUTELY AND ENTIRELY RENOUNCE
AND ABJURE ALL ALLEGIANCE AND FIDELITY TO ANY FOREIGN PRINCE,
POTENTATE, STATE, OR SOVEREIGNTY OF WHOM OR WHICH I HAVE HERETOFORE
BEEN A SUBJECT OR CITIZEN; THAT I WILL SUPPORT AND DEFEND THE
CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AGAINST ALL
ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND
ALLEGIANCE TO THE SAME; AND THAT I TAKE THIS OBLIGATION FREELY WITHOUT
ANY MENTAL RESERVATION OR PURPOSE OF EVASION:  SO HELP ME GOD." 

TO THE QUESTION IN THE APPLICATION "IF NECESSARY, ARE YOU WILLING TO
TAKE UP ARMS IN DEFENSE OF THIS COUNTRY?"  HE REPLIED, "NO (NON
COMBATANT) SEVENTH DAY ADVENTIST."  HE EXPLAINED THAT ANSWER BEFORE THE
EXAMINER BY SAYING "IT IS A PURELY RELIGIOUS MATTER WITH ME, I HAVE NO
POLITICAL OR PERSONAL REASONS OTHER THAN THAT."  HE DID NOT CLAIM
BEFORE HIS SELECTIVE SERVICE BOARD EXEMPTION FROM ALL MILITARY SERVICE,
BUT ONLY FROM COMBATANT MILITARY DUTY.  AT THE HEARING IN THE DISTRICT
COURT PETITIONER TESTIFIED THAT HE WAS A MEMBER OF THE SEVENTH DAY
ADVENTIST DENOMINATION, OF WHOM APPROXIMATELY 10,000 WERE THEN SERVING
IN THE ARMED FORCES OF THE UNITED STATES AS NON-COMBATANTS, ESPECIALLY
IN THE MEDICAL CORPS; AND THAT HE WAS WILLING TO SERVE IN THE ARMY BUT
WOULD NOT BEAR ARMS.  THE DISTRICT COURT ADMITTED HIM TO CITIZENSHIP. 
THE CIRCUIT COURT OF APPEALS REVERSED, ONE JUDGE DISSENTING.  149 F.2D
760.  IT TOOK THAT ACTION ON THE AUTHORITY OF UNITED STATES V.
SCHWIMMER, 279 U.S. 644; UNITED STATES V. MACINTOSH, 283 U.S. 605, AND
UNITED STATES V. BLAND, 283 U.S. 636, SAYING THAT THE FACTS OF THE
PRESENT CASE BROUGHT IT SQUARELY WITHIN THE PRINCIPLE OF THOSE CASES. 
THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED SO THAT THOSE AUTHORITIES MIGHT BE RE-EXAMINED. 

THE SCHWIMMER, MACINTOSH AND BLAND CASES INVOLVED, AS DOES THE
PRESENT ONE, A QUESTION OF STATUTORY CONSTRUCTION.  AT THE TIME OF
THOSE CASES, CONGRESS REQUIRED AN ALIEN, BEFORE ADMISSION TO
CITIZENSHIP, TO DECLARE ON OATH IN OPEN COURT THAT "HE WILL SUPPORT AND
DEFEND THE CONSTITUTION AND LAWS OF THE UNITED STATES AGAINST ALL
ENEMIES, FOREIGN AND DOMESTIC, AND BEAR TRUE FAITH AND ALLEGIANCE TO
THE SAME."  FN1  IT ALSO REQUIRED THE COURT TO BE SATISFIED THAT THE
ALIEN HAD DURING THE FIVE-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE OF
HIS APPLICATION "BEHAVED AS A MAN OF GOOD MORAL CHARACTER, ATTACHED TO
THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES, AND WELL
DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE SAME."  FN2  THOSE
PROVISIONS WERE REENACTED INTO THE PRESENT LAW IN SUBSTANTIALLY THE
SAME FORM.  FN3 

WHILE THERE ARE SOME FACTUAL DISTINCTIONS BETWEEN THIS CASE AND THE
SCHWIMMER AND MACINTOSH CASES, THE BLAND CASE ON ITS FACTS IS
INDISTINGUISHABLE.  BUT THE PRINCIPLE EMERGING FROM THE THREE CASES
OBLITERATES ANY FACTUAL DISTINCTION AMONG THEM.  AS WE RECOGNIZED IN IN
RE SUMMERS, 325 U.S. 561, 572, 577, THEY STAND FOR THE SAME GENERAL
RULE - THAT AN ALIEN WHO REFUSES TO BEAR ARMS WILL NOT BE ADMITTED TO
CITIZENSHIP.  AS AN ORIGINAL PROPOSITION, WE COULD NOT AGREE WITH THAT
RULE.  THE FALLACIES UNDERLYING IT WERE, WE THINK, DEMONSTRATED IN THE
DISSENTS OF MR. JUSTICE HOLMES IN THE SCHWIMMER CASE AND OF MR. CHIEF
JUSTICE HUGHES IN THE MACINTOSH CASE. 

THE OATH REQUIRED OF ALIENS DOES NOT IN TERMS REQUIRE THAT THEY
PROMISE TO BEAR ARMS.  NOR HAS CONGRESS EXPRESSLY MADE ANY SUCH FINDING
A PREREQUISITE TO CITIZENSHIP.  TO HOLD THAT IT IS REQUIRED IS TO READ
IT INTO THE ACT BY IMPLICATION.  BUT WE COULD NOT ASSUME THAT CONGRESS
INTENDED TO MAKE SUCH AN ABRUPT AND RADICAL DEPARTURE FROM OUR
TRADITIONS UNLESS IT SPOKE IN UNEQUIVOCAL TERMS. 

THE BEARING OF ARMS, IMPORTANT AS IT IS, IS NOT THE ONLY WAY IN WHICH
OUR INSTITUTIONS MAY BE SUPPORTED AND DEFENDED, EVEN IN TIMES OF GREAT
PERIL.  TOTAL WAR IN ITS MODERN FORM DRAMATIZES AS NEVER BEFORE THE
GREAT COOPERATIVE EFFORT NECESSARY FOR VICTORY.  THE NUCLEAR PHYSICISTS
WHO DEVELOPED THE ATOMIC BOMB, THE WORKER AT HIS LATHE, THE SEAMEN ON
CARGO VESSELS, CONSTRUCTION BATTALIONS, NURSES, ENGINEERS, LITTER
BEARERS, DOCTORS, CHAPLAINS - THESE, TOO, MADE ESSENTIAL
CONTRIBUTIONS.  AND MANY OF THEM MADE THE SUPREME SACRIFICE.  MR.
JUSTICE HOLMES STATED IN THE SCHWIMMER CASE (279 U.S. P. 655) THAT "THE
QUAKERS HAVE DONE THEIR SHARE TO MAKE THE COUNTRY WHAT IT IS."  AND THE
ANNALS OF THE RECENT WAR SHOW THAT MANY WHOSE RELIGIOUS SCRUPLES
PREVENTED THEM FROM BEARING ARMS, NEVERTHELESS WERE UNSELFISH
PARTICIPANTS IN THE WAR EFFORT.  REFUSAL TO BEAR ARMS IS NOT
NECESSARILY A SIGN OF DISLOYALTY OR A LACK OF ATTACHMENT TO OUR
INSTITUTIONS.  ONE MAY SERVE HIS COUNTRY FAITHFULLY AND DEVOTEDLY,
THOUGH HIS RELIGIOUS SCRUPLES MAKE IT IMPOSSIBLE FOR HIM TO SHOULDER A
RIFLE.  DEVOTION TO ONE'S COUNTRY CAN BE AS REAL AND AS ENDURING AMONG
NON-COMBATANTS AS AMONG COMBATANTS.  ONE MAY ADHERE TO WHAT HE DEEMS TO
BE HIS OBLIGATION TO GOD AND YET ASSUME ALL MILITARY RISKS TO SECURE
VICTORY.  THE EFFORT OF WAR IS INDIVISIBLE; AND THOSE WHOSE RELIGIOUS
SCRUPLES PREVENT THEM FROM KILLING ARE NO LESS PATRIOTS THAN THOSE
WHOSE SPECIAL TRAITS OR HANDICAPS RESULT IN THEIR ASSIGNMENT TO DUTIES
FAR BEHIND THE FIGHTING FRONT.  EACH IS MAKING THE UTMOST CONTRIBUTION
ACCORDING TO HIS CAPACITY.  THE FACT THAT HIS ROLE MAY BE LIMITED BY
RELIGIOUS CONVICTIONS RATHER THAN BY PHYSICAL CHARACTERISTICS HAS NO
NECESSARY BEARING ON HIS ATTACHMENT TO HIS COUNTRY OR ON HIS
WILLINGNESS TO SUPPORT AND DEFEND IT TO HIS UTMOST. 

PETITIONER'S RELIGIOUS SCRUPLES WOULD NOT DISQUALIFY HIM FROM
BECOMING A MEMBER OF CONGRESS OR HOLDING OTHER PUBLIC OFFICES.  WHILE
ARTICLE VI, CLAUSE 3 OF THE CONSTITUTION PROVIDES THAT SUCH OFFICIALS,
BOTH OF THE UNITED STATES AND THE SEVERAL STATES, "SHALL BE BOUND BY
OATH OR AFFIRMATION, TO SUPPORT THIS CONSTITUTION," IT SIGNIFICANTLY
ADDS THAT "NO RELIGIOUS TEST SHALL EVER BE REQUIRED AS A QUALIFICATION
TO ANY OFFICE OR PUBLIC TRUST UNDER THE UNITED STATES."  THE OATH
REQUIRED IS IN NO MATERIAL RESPECT DIFFERENT FROM THAT PRESCRIBED FOR
ALIENS UNDER THE NATIONALITY ACT.  IT HAS LONG CONTAINED THE PROVISION
"THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES
AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH
AND ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT
ANY MENTAL RESERVATION OR PURPOSE OF EVASION  ..."  R.S. SEC. 1757, 5
U.S.C. SEC. 16.  AS MR. CHIEF JUSTICE HUGHES STATED IN HIS DISSENT IN
THE MACINTOSH CASE (283 U.S. P. 631), "THE HISTORY OF THE STRUGGLE FOR
RELIGIOUS LIBERTY, THE LARGE NUMBER OF CITIZENS OF OUR COUNTRY, FROM
THE VERY BEGINNING, WHO HAVE BEEN UNWILLING TO SACRIFICE THEIR
RELIGIOUS CONVICTIONS, AND IN PARTICULAR, THOSE WHO HAVE BEEN
CONSCIENTIOUSLY OPPOSED TO WAR AND WHO WOULD NOT YIELD WHAT THEY
SINCERELY BELIEVED TO BE THEIR ALLEGIANCE TO THE WILL OF GOD" - THESE
CONSIDERATIONS MAKE IT IMPOSSIBLE TO CONCLUDE "THAT SUCH PERSONS ARE TO
BE DEEMED DISQUALIFIED FOR PUBLIC OFFICE IN THIS COUNTRY BECAUSE OF THE
REQUIREMENT OF THE OATH WHICH MUST BE TAKEN BEFORE THEY ENTER UPON
THEIR DUTIES." 

THERE IS NOT THE SLIGHTEST SUGGESTION THAT CONGRESS SET A STRICTER
STANDARD FOR ALIENS SEEKING ADMISSION TO CITIZENSHIP THAN IT DID FOR
OFFICIALS WHO MAKE AND ENFORCE THE LAWS OF THE NATION AND ADMINISTER
ITS AFFAIRS.  IT IS HARD TO BELIEVE THAT ONE NEED FORSAKE HIS RELIGIOUS
SCRUPLES TO BECOME A CITIZEN BUT NOT TO SIT IN THE HIGH COUNCILS OF
STATE. 

AS MR. CHIEF JUSTICE HUGHES POINTED OUT (UNITED STATES V. MACINTOSH,
SUPRA, P. 633), RELIGIOUS SCRUPLES AGAINST BEARING ARMS HAVE BEEN
RECOGNIZED BY CONGRESS IN THE VARIOUS DRAFT LAWS.  THIS IS TRUE OF THE
SELECTIVE TRAINING AND SERVICE ACT OF 1940(54 STAT. 889, 50 U.S.C. APP.
SEC. 305(G)) FN4  AS IT WAS OF EARLIER ACTS.  HE WHO IS INDUCTED INTO
THE ARMED SERVICES TAKES AN OATH WHICH INCLUDES THE PROVISION "THAT I
WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE UNITED STATES OF AMERICA;
THAT I WILL SERVE THEM HONESTLY AND FAITHFULLY AGAINST ALL THEIR
ENEMIES WHOMSOEVER  ..."  FN5  41 STAT. 809, 10 U.S.C. SEC. 1581. 
CONGRESS HAS THUS RECOGNIZED THAT ONE MAY ADEQUATELY DISCHARGE HIS
OBLIGATIONS AS A CITIZEN BY RENDERING NON-COMBATANT AS WELL AS
COMBATANT SERVICES.  THIS RESPECT BY CONGRESS OVER THE YEARS FOR THE
CONSCIENCE OF THOSE HAVING RELIGIOUS SCRUPLES AGAINST BEARING ARMS IS
COGENT EVIDENCE OF THE MEANING OF THE OATH.  IT IS RECOGNITION BY
CONGRESS THAT EVEN IN TIME OF WAR ONE MAY TRULY SUPPORT AND DEFEND OUR
INSTITUTIONS THOUGH HE STOPS SHORT OF USING WEAPONS OF WAR. 

THAT CONSTRUCTION OF THE NATURALIZATION OATH RECEIVED NEW SUPPORT IN
1942.  IN THE SECOND WAR POWERS ACT, 56 STAT. 176, 182, 8 U.S.C., SUPP.
IV, SEC. 1001, CONGRESS RELAXED CERTAIN OF THE REQUIREMENTS FOR ALIENS
WHO SERVED HONORABLY IN THE ARMED FORCES OF THE UNITED STATES DURING
WORLD WAR II AND PROVIDED MACHINERY TO EXPEDITE THEIR NATURALIZATION. 
FN6  RESIDENCE REQUIREMENTS WERE RELAXED, EDUCATIONAL TESTS WERE
ELIMINATED, AND NO FEES WERE REQUIRED.  BUT NO CHANGE IN THE OATH WAS
MADE; NOR WAS ANY CHANGE MADE IN THE REQUIREMENT THAT THE ALIEN BE
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION.  YET IT IS CLEAR THAT
THESE NEW PROVISIONS COVER NON-COMBATANTS AS WELL AS COMBATANTS.  FN7
IF PETITIONER HAD SERVED AS A NONCOMBATANT (AS HE WAS WILLING TO DO),
HE COULD HAVE BEEN ADMITTED TO CITIZENSHIP BY TAKING THE IDENTICAL OATH
WHICH HE IS WILLING TO TAKE.  CAN IT BE THAT THE OATH MEANS ONE THING
TO ONE WHO HAS SERVED TO THE EXTENT PERMITTED BY HIS RELIGIOUS SCRUPLES
AND ANOTHER THING TO ONE EQUALLY WILLING TO SERVE BUT WHO HAS NOT HAD
THE OPPORTUNITY?  IT IS NOT ENOUGH TO SAY THAT PETITIONER IS NOT
ENTITLED TO THE BENEFITS OF THE NEW ACT SINCE HE DID NOT SERVE IN THE
ARMED FORCES.  HE IS NOT SEEKING THE BENEFITS OF THE EXPEDITED
PROCEDURE AND THE RELAXED REQUIREMENTS.  THE OATH WHICH HE MUST TAKE IS
IDENTICAL WITH THE OATH WHICH BOTH NON-COMBATANTS AND COMBATANTS MUST
TAKE.  IT WOULD, INDEED, BE A STRANGE CONSTRUCTION TO SAY THAT "SUPPORT
AND DEFEND THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA
AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC" DEMANDS SOMETHING MORE FROM
SOME THAN IT DOES FROM OTHERS.  THAT OATH CAN HARDLY BE ADEQUATE FOR
ONE WHO IS UNWILLING TO BEAR ARMS BECAUSE OF RELIGIOUS SCRUPLES AND YET
EXACT FROM ANOTHER A PROMISE TO BEAR ARMS DESPITE RELIGIOUS SCRUPLES. 

MR. JUSTICE HOLMES STATED IN THE SCHWIMMER CASE (279 U.S. PP. 654
55):  "IF THERE IS ANY PRINCIPLE OF THE CONSTITUTION THAT MORE
IMPERATIVELY CALLS FOR ATTACHMENT THAN ANY OTHER IT IS THE PRINCIPLE OF
FREE THOUGHT - NOT FREE THOUGHT FOR THOSE WHO AGREE WITH US BUT FREEDOM
FOR THE THOUGHT THAT WE HATE.  I THINK THAT WE SHOULD ADHERE TO THAT
PRINCIPLE WITH REGARD TO ADMISSION INTO, AS WELL AS TO LIFE WITHIN THIS
COUNTRY."  THE STRUGGLE FOR RELIGIOUS LIBERTY HAS THROUGH THE CENTURIES
BEEN AN EFFORT TO ACCOMMODATE THE DEMANDS OF THE STATE TO THE
CONSCIENCE OF THE INDIVIDUAL.  THE VICTORY FOR FREEDOM OF THOUGHT
RECORDED IN OUR BILL OF RIGHTS RECOGNIZES THAT IN THE DOMAIN OF
CONSCIENCE THERE IS A MORAL POWER HIGHER THAN THE STATE.  THROUGHOUT
THE AGES, MEN HAVE SUFFERED DEATH RATHER THAN SUBORDINATE THEIR
ALLEGIANCE TO GOD TO THE AUTHORITY OF THE STATE.  FREEDOM OF RELIGION
GUARANTEED BY THE FIRST AMENDMENT IS THE PRODUCT OF THAT STRUGGLE.  AS
WE RECENTLY STATED IN UNITED STATES V. BALLARD, 322 U.S. 78, 86,
"FREEDOM OF THOUGHT, WHICH INCLUDES FREEDOM OF RELIGIOUS BELIEF, IS
BASIC IN A SOCIETY OF FREE MEN.  BOARD OF EDUCATION V. BARNETTE, 319
U.S. 624."  THE TEST OATH IS ABHORRENT TO OUR TRADITION.  OVER THE
YEARS, CONGRESS HAS METICULOUSLY RESPECTED THAT TRADITION AND EVEN IN
TIME OF WAR HAS SOUGHT TO ACCOMMODATE THE MILITARY REQUIREMENTS TO THE
RELIGIOUS SCRUPLES OF THE INDIVIDUAL.  WE DO NOT BELIEVE THAT CONGRESS
INTENDED TO REVERSE THAT POLICY WHEN IT CAME TO DRAFT THE
NATURALIZATION OATH.  SUCH AN ABRUPT AND RADICAL DEPARTURE FROM OUR
TRADITIONS SHOULD NOT BE IMPLIED.  SEE SCHNEIDERMAN V. UNITED STATES,
320 U.S. 118, 132.  COGENT EVIDENCE WOULD BE NECESSARY TO CONVINCE US
THAT CONGRESS TOOK THAT COURSE. 

WE CONCLUDE THAT THE SCHWIMMER, MACINTOSH AND BLAND CASES DO NOT
STATE THE CORRECT RULE OF LAW. 

WE ARE MET, HOWEVER, WITH THE ARGUMENT THAT, EVEN THOUGH THOSE CASES
WERE WRONGLY DECIDED, CONGRESS HAS ADOPTED THE RULE WHICH THEY
ANNOUNCED.  THE ARGUMENT RUNS AS FOLLOWS:  MANY EFFORTS WERE MADE TO
AMEND THE LAW SO AS TO CHANGE THE RULE ANNOUNCED BY THOSE CASES; BUT IN
EVERY INSTANCE THE BILL DIED IN COMMITTEE.  MOREOVER, WHEN THE
NATIONALITY ACT OF 1940 WAS PASSED, CONGRESS REENACTED THE OATH IN ITS
PRE-EXISTING FORM, THOUGH AT THE SAME TIME IT MADE EXTENSIVE CHANGES IN
THE REQUIREMENTS AND PROCEDURE FOR NATURALIZATION.  FROM THIS IT IS
ARGUED THAT CONGRESS ADOPTED AND REENACTED THE RULE OF THE SCHWIMMER,
MACINTOSH AND BLAND CASES.  CF. APEX HOSIERY CO. V. LEADER, 310 U.S.
469, 488-489.    WE STATED IN HELVERING V. HALLOCK, 309 U.S. 106, 119,
THAT "IT WOULD REQUIRE VERY PERSUASIVE CIRCUMSTANCES ENVELOPING
CONGRESSIONAL SILENCE TO DEBAR THIS COURT FROM REEXAMINING ITS OWN
DOCTRINES."  IT IS AT BEST TREACHEROUS TO FIND IN CONGRESSIONAL SILENCE
ALONE THE ADOPTION OF A CONTROLLING RULE OF LAW.  WE DO NOT THINK UNDER
THE CIRCUMSTANCES OF THIS LEGISLATIVE HISTORY THAT WE CAN PROPERLY
PLACE ON THE SHOULDERS OF CONGRESS THE BURDEN OF THE COURT'S OWN
ERROR.  THE HISTORY OF THE 1940 ACT IS AT MOST EQUIVOCAL.  IT CONTAINS
NO AFFIRMATIVE RECOGNITION OF THE RULE OF THE SCHWIMMER, MACINTOSH AND
BLAND CASES.  THE SILENCE OF CONGRESS AND ITS INACTION ARE AS
CONSISTENT WITH A DESIRE TO LEAVE THE PROBLEM FLUID AS THEY ARE WITH AN
ADOPTION BY SILENCE OF THE RULE OF THOSE CASES.  BUT, FOR US, IT IS
ENOUGH TO SAY THAT SINCE THE DATE OF THOSE CASES CONGRESS NEVER ACTED
AFFIRMATIVELY ON THIS QUESTION BUT ONCE AND THAT WAS IN 1942.  AT THAT
TIME, AS WE HAVE NOTED, CONGRESS SPECIFICALLY GRANTED NATURALIZATION
PRIVILEGES TO NON-COMBATANTS WHO LIKE PETITIONER WERE PREVENTED FROM
BEARING ARMS BY THEIR RELIGIOUS SCRUPLES.  THAT WAS AFFIRMATIVE
RECOGNITION THAT ONE COULD BE ATTACHED TO THE PRINCIPLES OF OUR
GOVERNMENT AND COULD SUPPORT AND DEFEND IT EVEN THOUGH HIS RELIGIOUS
CONVICTIONS PREVENTED HIM FROM BEARING ARMS.  AND, AS WE HAVE SAID, WE
CANNOT BELIEVE THAT THE OATH WAS DESIGNED TO EXACT SOMETHING MORE FROM
ONE PERSON THAN FROM ANOTHER.  THUS THE AFFIRMATIVE ACTION TAKEN BY
CONGRESS IN 1942 NEGATIVES ANY INFERENCE THAT OTHERWISE MIGHT BE DRAWN
FROM ITS SILENCE WHEN IT REENACTED THE OATH IN 1940.  REVERSED. 

FN1  NATURALIZATION ACT OF 1906, SEC. 4, 34 STAT. 596. 

FN2  ID. 

FN3  WE HAVE ALREADY SET FORTH IN THE OPINION THE PRESENT FORM OF THE
OATH WHICH IS REQUIRED.  IT IS TO BE FOUND IN THE NATIONALITY ACT OF
1940, 54 STAT. 1137, 1157, 8 U.S.C. SEC. 735(B).  SEC. 307(A) OF THAT
ACT, 8 U.S.C. SEC. 707(A), PROVIDES THAT NO PERSON SHALL BE NATURALIZED
UNLESS HE HAS BEEN FOR STATED PERIODS AND STILL IS "A PERSON OF GOOD
MORAL CHARACTER, ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE
UNITED STATES, AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE
UNITED STATES." 

FN4  SEC. 305(G) PROVIDES IN PART: 

"NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO REQUIRE ANY
PERSON TO BE SUBJECT TO COMBATANT TRAINING AND SERVICE IN THE LAND OR
NAVAL FORCES OF THE UNITED STATES WHO, BY REASON OF RELIGIOUS TRAINING
AND BELIEF, IS CONSCIENTIOUSLY OPPOSED TO PARTICIPATION IN WAR IN ANY
FORM.  ANY SUCH PERSON CLAIMING SUCH 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 LAND OR
NAVAL FORCES UNDER THIS ACT, 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,
IN LIEU OF SUCH INDUCTION, BE ASSIGNED TO WORK OF NATIONAL IMPORTANCE
UNDER CIVILIAN DIRECTION." 

FOR EARLIER ACTS SEE ACT OF FEBRUARY 24, 1864, 13 STAT. 6, 9; ACT OF
JANUARY 21, 1903, 32 STAT. 775; ACT OF JUNE 3, 1916, 39 STAT. 166, 197;
ACT OF MAY 18, 1917, 40 STAT. 76, 78. 

FN5  AND SEE BILLINGS V. TRUESDELL, 321 U.S. 542, 549-550; ARMY
REGULATIONS NO. 615-500, AUGUST 10, 1944, SEC. II, 15(F)(2). 

FN6  COMPARABLE PROVISION WAS MADE IN THE ACT OF DECEMBER 7, 1942, 56
STAT. 1041, 8 U.S.C., SUPP. IV, SEC. 723A, FOR THOSE WHO SERVED
HONORABLY IN WORLD WAR I, IN THE SPANISH-AMERICAN WAR, OR ON THE
MEXICAN BORDER. 

FN7  IN RE KINLOCH, 53 F.SUPP.  521, INVOLVED NATURALIZATION
PROCEEDINGS OF ALIENS, ONE OF WHOM, LIKE PETITIONER IN THE PRESENT
CASE, AS A SEVENTH DAY ADVENTIST.  HE HAD BEEN INDUCTED INTO THE ARMY
AS A NON-COMBATANT.  HIS NATURALIZATION WAS OPPOSED BY THE IMMIGRATION
SERVICE ON THE GROUND THAT HE COULD NOT PROMISE TO BEAR ARMS.  THE
COURT OVERRULED THE OBJECTION, STATING, P. 523: 

"IF CONSCIENTIOUS OBJECTORS, WHO ARE ALIENS, PERFORMING MILITARY
DUTY, AND WEARING THE UNIFORM, ARE NOT GRANTED THE PRIVILEGES OF
CITIZENSHIP UNDER THIS ACT, THEN THE ACT WOULD BE MEANINGLESS.  IT
WOULD BE SO MADE IF AN APPLICANT, BEING A CONSCIENTIOUS OBJECTOR, WHO
HAS ATTAINED THE STATUS OF A SOLDIER, PERFORMS MILITARY DUTY, AND
HONORABLY WEARS THE UNIFORM (AS IS ADMITTED IN THE INSTANT CASES), IS
DENIED CITIZENSHIP.  IF THE OATH OF ALLEGIANCE IS TO BE CONSTRUED AS
REQUIRING SUCH APPLICANT TO AGREE, WITHOUT MENTAL RESERVATION, TO BEAR
ARMS, THEN THE RESULT WOULD BE A DENIAL OF CITIZENSHIP, EVEN THOUGH
CONGRESS HAS CONFERRED SUCH PRIVILEGE UPON HIM." 

AND SEE IN RE SAWYER, 59 F.SUPP.  428. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE STONE, DISSENTING. 

I THINK THE JUDGMENT SHOULD BE AFFIRMED, FOR THE REASON THAT THE
COURT BELOW, IN APPLYING THE CONTROLLING PROVISIONS OF THE
NATURALIZATION STATUTES, CORRECTLY APPLIED THEM AS EARLIER CONSTRUED BY
THIS COURT, WHOSE CONSTRUCTION CONGRESS HAS ADOPTED AND CONFIRMED. 

IN THREE CASES DECIDED MORE THAN FIFTEEN YEARS AGO, THIS COURT DENIED
CITIZENSHIP TO APPLICANTS FOR NATURALIZATION WHO HAD ANNOUNCED THAT
THEY PROPOSED TO TAKE THE PRESCRIBED OATH OF ALLEGIANCE WITH THE
RESERVATION OR QUALIFICATION THAT THEY WOULD NOT, AS NATURALIZED
CITIZENS, ASSIST IN THE DEFENSE OF THIS COUNTRY BY FORCE OF ARMS OR
GIVE THEIR MORAL SUPPORT TO THE GOVERNMENT IN ANY WAR WHICH THEY DID
NOT BELIEVE TO BE MORALLY JUSTIFIED OR IN THE BEST INTERESTS OF THE
COUNTRY.  SEE UNITED STATES V. SCHWIMMER, 279 U.S. 644; UNITED STATES
V. MACINTOSH, 283 U.S. 605; UNITED STATES V. BLAND, 283 U.S. 636. 

IN EACH OF THESE CASES THIS COURT HELD THAT THE APPLICANT HAD FAILED
TO MEET THE CONDITIONS WHICH CONGRESS HAD MADE PREREQUISITE TO
NATURALIZATION BY SEC. 4 OF THE NATURALIZATION ACT OF JUNE 29, 1906, C.
3592, 34 STAT. 596, THE PROVISIONS OF WHICH, HERE RELEVANT, WERE
ENACTED IN THE NATIONALITY ACT OF OCTOBER 14, 1940.  SEE C. 876, 54
STAT. 1137, AS AMENDED BY THE ACT OF MARCH 27, 1942, C. 199, 56 STAT.
176, 182-183, AND BY THE ACT OF DECEMBER 7, 1942, C. 690, 56 STAT.
1041, 8 U.S.C. SECS. 707, 735.  SECTION 4 OF THE NATURALIZATION ACT OF
1906, PARAGRAPH "THIRD," PROVIDED THAT BEFORE THE ADMISSION TO
CITIZENSHIP THE APPLICANT SHOULD DECLARE ON OATH IN OPEN COURT THAT "HE
WILL SUPPORT AND DEFEND THE CONSTITUTION AND LAWS OF THE UNITED STATES
AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC, AND BEAR TRUE FAITH AND
ALLEGIANCE TO THE SAME."  AND PARAGRAPH "FOURTH" REQUIRED THAT BEFORE
ADMISSION IT BE MADE TO APPEAR "TO THE SATISFACTION OF THE COURT
ADMITTING ANY ALIEN TO CITIZENSHIP" THAT AT LEAST FOR A PERIOD OF FIVE
YEARS IMMEDIATELY PRECEDING HIS APPLICATION THE APPLICANT "HAS BEHAVED
AS A MAN OF GOOD MORAL CHARACTER, ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION OF THE UNITED STATES, AND WELL DISPOSED TO THE GOOD ORDER
AND HAPPINESS OF THE SAME  ..."  IN APPLYING THESE PROVISIONS IN THE
CASES MENTIONED, THIS COURT HELD ONLY THAT AN APPLICANT WHO IS UNABLE
TO TAKE THE OATH OF ALLEGIANCE WITHOUT THE RESERVATIONS OR
QUALIFICATIONS INSISTED UPON BY THE APPLICANTS IN THOSE CASES MANIFESTS
HIS WANT OF ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION AND HIS
UNWILLINGNESS TO MEET THE REQUIREMENTS OF THE OATH, THAT HE WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AND BEAR TRUE
FAITH AND ALLEGIANCE TO THE SAME, AND SO DOES NOT COMPLY WITH THE
STATUTORY CONDITIONS OF HIS NATURALIZATION.  NO QUESTION OF THE
CONSTITUTIONAL POWER OF CONGRESS TO WITHHOLD CITIZENSHIP ON THESE
GROUNDS WAS INVOLVED.  THAT POWER WAS NOT DOUBTED.  SEE SELECTIVE DRAFT
LAW CASES, 245 U.S. 366; HAMILTON V. REGENTS, 293 U.S. 245.  THE ONLY
QUESTION WAS OF CONSTRUCTION OF THE STATUTE WHICH CONGRESS AT ALL TIMES
HAS BEEN FREE TO AMEND IF DISSATISFIED WITH THE CONSTRUCTION ADOPTED BY
THE COURT. 

WITH THREE OTHER JUSTICES OF THE COURT I DISSENTED IN THE MACINTOSH
AND BLAND CASES, FOR REASONS WHICH THE COURT NOW ADOPTS AS GROUND FOR
OVERRULING THEM.  FN1  SINCE THIS COURT IN THREE CONSIDERED EARLIER
OPINIONS HAS REJECTED THE CONSTRUCTION OF THE STATUTE FOR WHICH THE
DISSENTING JUSTICES CONTENDED, THE QUESTION, WHICH FOR ME IS DECISIVE
OF THE PRESENT CASE, IS WHETHER CONGRESS HAS LIKEWISE REJECTED THAT
CONSTRUCTION BY ITS SUBSEQUENT LEGISLATIVE ACTION, AND HAS ADOPTED AND
CONFIRMED THE COURT'S EARLIER CONSTRUCTION OF THE STATUTES IN
QUESTION.  A STUDY OF CONGRESSIONAL ACTION TAKEN WITH RESPECT TO
PROPOSALS FOR AMENDMENT OF THE NATURALIZATION LAWS SINCE THE DECISION
IN THE SCHWIMMER CASE, LEADS ME TO CONCLUDE THAT CONGRESS HAS ADOPTED
AND CONFIRMED THIS COURT'S EARLIER CONSTRUCTION OF THE NATURALIZATION
LAWS.  FOR THAT REASON ALONE I THINK THAT THE JUDGMENT SHOULD BE
AFFIRMED. 

THE CONSTRUCTION OF THE NATURALIZATION STATUTES, ADOPTED BY THIS
COURT IN THE THREE CASES MENTIONED, IMMEDIATELY BECAME THE TARGET OF AN
ACTIVE, PUBLICIZED LEGISLATIVE ATTACK IN CONGRESS WHICH PERSISTED FOR A
PERIOD OF ELEVEN YEARS, UNTIL THE ADOPTION OF THE NATIONALITY ACT IN
1940.  TWO DAYS AFTER THE SCHWIMMER CASE WAS DECIDED, A BILL WAS
INTRODUCED IN THE HOUSE, H.R. 3547, 71ST CONG., 1ST SESS., TO GIVE THE
NATURALIZATION ACT A CONSTRUCTION CONTRARY TO THAT WHICH HAD BEEN GIVEN
TO IT BY THIS COURT AND WHICH, IF ADOPTED, WOULD HAVE MADE THE
APPLICANTS REJECTED BY THIS COURT IN THE SCHWIMMER, MACINTOSH AND BLAND
CASES ELIGIBLE FOR CITIZENSHIP.  THIS EFFORT TO ESTABLISH BY
CONGRESSIONAL ACTION THAT THE CONSTRUCTION WHICH THIS COURT HAD PLACED
ON THE NATURALIZATION ACT WAS NOT ONE WHICH CONGRESS HAD ADOPTED OR
INTENDED, WAS RENEWED WITHOUT SUCCESS AFTER THE DECISION IN THE
MACINTOSH AND BLAND CASES, AND WAS CONTINUED FOR A PERIOD OF ABOUT TEN
YEARS.  FN2  ALL OF THESE MEASURES WERE OF SUBSTANTIALLY THE SAME
PATTERN AS H.R. 297, 72D CONG., 1ST SESS., INTRODUCED DECEMBER 8, 1931,
AT THE FIRST SESSION OF CONGRESS, AFTER THE DECISION IN THE MACINTOSH
CASE.  IT PROVIDED THAT NO PERSON OTHERWISE QUALIFIED "SHALL BE
DEBARRED FROM CITIZENSHIP BY REASON OF HIS OR HER RELIGIOUS VIEWS OR
PHILOSOPHICAL OPINIONS WITH RESPECT TO THE LAWFULNESS OF WAR AS A MEANS
OF SETTLING INTERNATIONAL DISPUTES, BUT EVERY ALIEN ADMITTED TO
CITIZENSHIP SHALL BE SUBJECT TO THE SAME OBLIGATIONS AS THE NATIVE-BORN
CITIZEN."  H.R. 3547, 71ST CONG., 1ST SESS., INTRODUCED IMMEDIATELY
AFTER THE DECISION IN THE SCHWIMMER CASE, HAD CONTAINED A LIKE
PROVISION, BUT WITH THE OMISSION OF THE LAST CLAUSE BEGINNING "BUT
EVERY ALIEN."  HEARINGS WERE HAD BEFORE THE HOUSE COMMITTEE ON
IMMIGRATION AND NATURALIZATION ON BOTH BILLS AT WHICH THEIR PROPONENTS
HAD STATED CLEARLY THEIR PURPOSE TO SET ASIDE THE INTERPRETATION PLACED
ON THE OATH OF ALLEGIANCE BY THE SCHWIMMER AND MACINTOSH CASES.  FN3
THERE WAS OPPOSITION ON EACH OCCASION.  FN4 BILLS IDENTICAL WITH H.R.
297 WERE INTRODUCED IN THREE LATER CONGRESSES.  FN5  NONE OF THESE
BILLS WERE REPORTED OUT OF COMMITTEE.  THE OTHER PROPOSALS, ALL OF
WHICH FAILED OF PASSAGE (SEE FOOTNOTE 2, ANTE), HAD THE SAME PURPOSE
AND DIFFERED ONLY IN PHRASEOLOGY. 

THUS, FOR SIX SUCCESSIVE CONGRESSES, OVER A PERIOD OF MORE THAN A
DECADE, THERE WERE CONTINUOUSLY PENDING BEFORE CONGRESS IN ONE FORM OR
ANOTHER PROPOSALS TO OVERTURN THE RULINGS IN THE THREE SUPREME COURT
DECISIONS IN QUESTION.  CONGRESS DECLINED TO ADOPT THESE PROPOSALS
AFTER FULL HEARINGS AND AFTER SPEECHES ON THE FLOOR ADVOCATING THE
CHANGE.  72 CONG. REC. 6966-7; 75 CONG. REC. 15354-7.  IN THE MEANTIME
THE DECISIONS OF THIS COURT HAD BEEN FOLLOWED IN CLARKE'S CASE, 301 PA.
321, 152 A. 92; BEALE V. UNITED STATES, 71 F.2D 737; IN RE WARKENTIN,
93 F.2D 42.  IN BEALE V. UNITED STATES, SUPRA, THE COURT POINTED OUT
THAT THE PROPOSED AMENDMENTS AFFECTING THE PROVISIONS OF THE STATUTES
RELATING TO ADMISSION TO CITIZENSHIP HAD FAILED, SAYING:  "WE MUST
CONCLUDE, THEREFORE, THAT THESE STATUTORY REQUIREMENTS AS CONSTRUED BY
THE SUPREME COURT HAVE CONGRESSIONAL SANCTION AND APPROVAL." 

ANY DOUBTS THAT SUCH WERE THE PURPOSE AND WILL OF CONGRESS WOULD SEEM
TO HAVE BEEN DISSIPATED BY THE REENACTMENT BY CONGRESS IN 1940 OF
PARAGRAPHS "THIRD" AND "FOURTH" OF SEC. 4 OF THE NATURALIZATION ACT OF
1906, AND BY THE INCORPORATION IN THE ACT OF 1940 OF THE VERY FORM OF
OATH WHICH HAD BEEN ADMINISTRATIVELY PRESCRIBED FOR THE APPLICANTS IN
THE SCHWIMMER, MACINTOSH AND BLAND CASES.  SEE RULE 8(C),
NATURALIZATION REGULATIONS OF JULY 1, 1929.  FN6 

THE NATIONALITY ACT OF 1940 WAS A COMPREHENSIVE, SLOWLY MATURED AND
CAREFULLY CONSIDERED REVISION OF THE NATURALIZATION LAWS.  THE
PREPARATION OF THIS MEASURE WAS NOT ONLY DELEGATED TO A CONGRESSIONAL
COMMITTEE, BUT WAS CONSIDERED BY A COMMITTEE OF CABINET MEMBERS, ONE OF
WHOM WAS THE ATTORNEY GENERAL.  BOTH WERE AWARE OF OUR DECISIONS IN THE
SCHWIMMER AND RELATED CASES AND THAT NO OTHER QUESTION PERTINENT TO THE
NATURALIZATION LAWS HAD BEEN AS PERSISTENTLY AND CONTINUOUSLY BEFORE
CONGRESS IN THE TEN YEARS FOLLOWING THE DECISION IN THE SCHWIMMER
CASE.  THE MODIFICATIONS IN THE PROVISIONS OF PARAGRAPHS "THIRD" AND
"FOURTH" OF SEC. 4 OF THE 1906 ACT SHOW CONCLUSIVELY THE CAREFUL
ATTENTION WHICH WAS GIVEN TO THEM. 

IN THE FACE OF THIS LEGISLATIVE HISTORY THE "FAILURE OF CONGRESS TO
ALTER THE ACT AFTER IT HAD BEEN JUDICIALLY CONSTRUED, AND THE ENACTMENT
BY CONGRESS OF LEGISLATION WHICH IMPLICITLY RECOGNIZES THE JUDICIAL
CONSTRUCTION AS EFFECTIVE, IS PERSUASIVE OF LEGISLATIVE RECOGNITION
THAT THE JUDICIAL CONSTRUCTION IS THE CORRECT ONE.  THIS IS THE MORE SO
WHERE, AS HERE, THE APPLICATION OF THE STATUTE  ...  HAS BROUGHT FORTH
SHARPLY CONFLICTING VIEWS BOTH ON THE COURT AND IN CONGRESS, AND WHERE
AFTER THE MATTER HAS BEEN FULLY BROUGHT TO THE ATTENTION OF THE PUBLIC
AND THE CONGRESS, THE LATTER HAS NOT SEEN FIT TO CHANGE THE STATUTE." 
APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 488-9.  AND SEE TO LIKE
EFFECT UNITED STATES V. RYAN, 284 U.S. 167-175; UNITED STATES V. ELGIN,
J. & E.R. CO., 298 U.S. 492, 500; MISSOURI V. ROSS, 299 U.S. 72, 75;
CF. HELVERING V. WINMILL, 305 U.S. 79, 82, 83.  IT IS THE
RESPONSIBILITY OF CONGRESS, IN REENACTING A STATUTE, TO MAKE KNOWN ITS
PURPOSE IN A CONTROVERSIAL MATTER OF INTERPRETATION OF ITS FORMER
LANGUAGE, AT LEAST WHEN THE MATTER HAS, FOR OVER A DECADE, BEEN
PERSISTENTLY BROUGHT TO ITS ATTENTION.  IN THE LIGHT OF THIS
LEGISLATIVE HISTORY, IT IS ABUNDANTLY CLEAR THAT CONGRESS HAS PERFORMED
THAT DUTY.  IN ANY CASE IT IS NOT LIGHTLY TO BE IMPLIED THAT CONGRESS
HAS FAILED TO PERFORM IT AND HAS DELEGATED TO THIS COURT THE
RESPONSIBILITY OF GIVING NEW CONTENT TO LANGUAGE DELIBERATELY READOPTED
AFTER THIS COURT HAS CONSTRUED IT.  FOR US TO MAKE SUCH AN ASSUMPTION
IS TO DISCOURAGE, IF NOT TO DENY, LEGISLATIVE RESPONSIBILITY.  BY THUS
ADOPTING AND CONFIRMING THIS COURT'S CONSTRUCTION OF WHAT CONGRESS HAD
ENACTED IN THE NATURALIZATION ACT OF 1906 CONGRESS GAVE THAT
CONSTRUCTION THE SAME LEGAL SIGNIFICANCE AS THOUGH IT HAD WRITTEN THE
VERY WORDS INTO THE ACT OF 1940. 

THE ONLY REMAINING QUESTION IS WHETHER CONGRESS REPEALED THIS
CONSTRUCTION BY ENACTMENT OF THE 1942 ADMENDMENTS OF THE NATIONALITY
ACT.  THAT ACT EXTENDED SPECIAL PRIVILEGES TO APPLICANTS FOR
NATURALIZATION WHO WERE ALIENS AND WHO HAVE SERVED IN THE ARMED FORCES
OF THE UNITED STATES IN TIME OF WAR, BY DISPENSING WITH OR MODIFYING
EXISTING REQUIREMENTS, RELATING TO DECLARATIONS OF INTENTION, PERIOD OF
RESIDENCE, EDUCATION, AND FEES.  IT LEFT UNCHANGED THE REQUIREMENTS
THAT THE APPLICANT'S BEHAVIOR SHOW HIS ATTACHMENT TO THE PRINCIPLES OF
THE CONSTITUTION AND THAT HE TAKE THE OATH OF ALLEGIANCE.  IN ADOPTING
THE 1942 AMENDMENTS CONGRESS DID NOT HAVE BEFORE IT ANY QUESTION OF THE
OATH OF ALLEGIANCE WITH WHICH IT HAD BEEN CONCERNED WHEN IT ADOPTED THE
1940 ACT.  IN 1942 IT WAS CONCERNED WITH THE GRANT OF SPECIAL FAVORS TO
THOSE SEEKING NATURALIZATION WHO HAD WORN THE UNIFORM AND RENDERED
MILITARY SERVICE IN TIME OF WAR AND WHO COULD SATISFY SUCH
NATURALIZATION REQUIREMENTS AS HAD NOT BEEN DISPENSED WITH BY THE
AMENDMENTS.  IN THE CASE OF THOSE ENTITLED TO AVAIL THEMSELVES OF THESE
PRIVILEGES, CONGRESS LEFT IT TO THE NATURALIZATION AUTHORITIES, AS IN
OTHER CASES, TO DETERMINE WHETHER, BY THEIR APPLICATIONS AND THEIR
CONDUCT IN THE MILITARY SERVICE, THEY SATISFY THE REQUIREMENTS FOR
NATURALIZATION WHICH HAVE NOT BEEN WAIVED. 

IT IS POINTED OUT THAT ONE OF THE 1942 AMENDMENTS, 8 U.S.C., SUPP.
IV, SEC. 1004, PROVIDED THAT THE PROVISIONS OF THE AMENDMENT SHOULD NOT
APPLY TO "ANY CONSCIENTIOUS OBJECTOR WHO PERFORMED NO MILITARY DUTY
WHATEVER OR REFUSED TO WEAR THE UNIFORM."  IT IS SAID THAT THE
IMPLICATION OF THIS PROVISION IS THAT CONSCIENTIOUS OBJECTORS WHO
RENDERED NONCOMBATANT SERVICE AND WORE THE UNIFORM WERE, UNDER THE 1942
AMENDMENTS, TO BE ADMITTED TO CITIZENSHIP.  FROM THIS IT IS ARGUED THAT
SINCE THE 1942 AMENDMENTS APPLY TO THOSE WHO HAVE BEEN IN NONCOMBATANT,
AS WELL AS COMBATANT, MILITARY SERVICE, THE AMENDMENT MUST BE TAKEN TO
INCLUDE SOME WHO HAVE RENDERED NONCOMBATANT SERVICE WHO ARE ALSO
CONSCIENTIOUS OBJECTORS AND WHO WOULD BE ADMITTED TO CITIZENSHIP UNDER
THE 1942 AMENDMENTS, EVEN THOUGH THEY MADE THE SAME RESERVATIONS AS TO
THE OATH OF ALLEGIANCE AS DID THE APPLICANTS IN THE SCHWIMMER,
MACINTOSH AND BLAND CASES.  AND IT IS SAID THAT ALTHOUGH THE 1942
AMENDMENTS ARE NOT APPLICABLE TO PETITIONER, WHO HAS NOT BEEN IN
MILITARY SERVICE, THE OATH CANNOT MEAN ONE THING AS TO HIM AND ANOTHER
AS TO THOSE WHO HAVE BEEN IN THE NONCOMBATANT SERVICE. 

TO THESE SUGGESTIONS THERE ARE TWO ANSWERS.  ONE IS THAT IF THE 1942
AMENDMENT BE CONSTRUED AS INCLUDING NONCOMBATANTS WHO ARE ALSO
CONSCIENTIOUS OBJECTORS, WHO ARE UNWILLING TO TAKE THE OATH WITHOUT THE
RESERVATIONS MADE BY THE APPLICANTS IN THE SCHWIMMER, MACINTOSH AND
BLAND CASES, THE ONLY EFFECT WOULD BE TO EXEMPT NONCOMBATANT
CONSCIENTIOUS OBJECTORS FROM THE REQUIREMENTS OF THE OATH, WHICH HAD
CLEARLY BEEN MADE APPLICABLE TO ALL OBJECTORS, INCLUDING PETITIONER, BY
THE NATIONALITY ACT OF 1940, AND FROM WHICH PETITIONER WAS NOT EXEMPTED
BY THE 1942 AMENDMENTS.  IF SUCH IS THE CONSTRUCTION OF THE 1942 ACT,
THERE IS NO CONSTITUTIONAL OR STATUTORY OBSTACLE TO CONGRESS' TAKING
SUCH ACTION.  CONGRESS IF IT SAW FIT COULD HAVE ADMITTED TO CITIZENSHIP
THOSE WHO HAD RENDERED NONCOMBATANT SERVICE, WITH A MODIFIED OATH OR
WITHOUT ANY OATH AT ALL.  PETITIONER HAS NOT BEEN SO EXEMPTED. 

SINCE PETITIONER WAS NEVER IN THE MILITARY OR NAVAL FORCES OF THE
UNITED STATES, WE NEED NOT DECIDE WHETHER THE 1942 AMENDMENTS
AUTHORIZED ANY DIFFERENT OATH FOR THOSE WHO HAD BEEN IN NONCOMBATANT
SERVICE THAN FOR OTHERS.  THE AMENDMENTS HAVE BEEN CONSTRUED AS
REQUIRING THE SAME OATH, WITHOUT RESERVATIONS, FROM CONSCIENTIOUS
OBJECTORS, AS FROM OTHERS.  IN RE NIELSEN, 60 F.SUPP.  240.  NOT ALL OF
THOSE WHO RENDERED NONCOMBATANT SERVICE WERE CONSCIENTIOUS OBJECTORS. 
FEW WERE.  THERE WERE OTHERS IN THE NONCOMBATANT SERVICE WHO HAD
ANNOUNCED THEIR CONSCIENTIOUS OBJECTIONS TO COMBATANT SERVICE, WHO MAY
HAVE WAIVED OR ABANDONED THEIR OBJECTIONS.  SUCH WAS THE EXPERIENCE IN
THE FIRST WORLD WAR.  SEE "STATEMENT CONCERNING THE TREATMENT OF
CONSCIENTIOUS OBJECTORS IN THE ARMY," PREPARED AND PUBLISHED BY
DIRECTION OF THE SECRETARY OF WAR, JUNE 18, 1919.  ALL SUCH COULD HAVE
TAKEN THE OATH WITHOUT THE RESERVATIONS MADE BY THE APPLICANTS IN THE
SCHWIMMER, MACINTOSH AND BLAND CASES AND WOULD HAVE BEEN ENTITLED TO
THE BENEFITS OF THE 1942 AMENDMENTS, PROVIDED THEY HAD PERFORMED
MILITARY DUTY AND HAD NOT REFUSED TO WEAR THE UNIFORM.  THE FACT THAT
CONGRESS RECOGNIZED BY INDIRECTION, IN 8 U.S.C., SUPP. IV, SEC. 1004,
THAT THOSE WHO HAD APPEARED IN THE ROLE OF CONSCIENTIOUS OBJECTORS,
MIGHT BECOME CITIZENS BY TAKING THE OATH OF ALLEGIANCE AND ESTABLISHING
THEIR ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION, DOES NOT SHOW
THAT CONGRESS DISPENSED WITH THE REQUIREMENTS OF THE OATH AS CONSTRUED
BY THIS COURT AND PLAINLY CONFIRMED BY CONGRESS IN THE NATIONALITY ACT
OF 1940.  THERE IS NO NECESSARY INCONSISTENCY IN THIS RESPECT BETWEEN
THE 1940 ACT AND THE 1942 AMENDMENTS.  WITHOUT IT REPEAL BY IMPLICATION
IS NOT FAVORED.  UNITED STATES V. BORDEN CO., 308 U.S. 188, 198-9, 203
6; GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 457; UNITED STATES
ALKALI ASSN. V. UNITED STATES, 325 U.S. 196, 209.  THE AMENDMENTS AND
THEIR LEGISLATIVE HISTORY GIVE NO HINT OF ANY PURPOSE OF CONGRESS TO
RELAX, AT LEAST FOR PERSONS WHO HAD RENDERED NO MILITARY SERVICE, THE
REQUIREMENTS OF THE OATH OF ALLEGIANCE AND PROOF OF ATTACHMENT TO THE
CONSTITUTION AS THIS COURT HAD INTERPRETED THEM AND AS THE NATIONALITY
ACT OF 1940 PLAINLY REQUIRED THEM TO BE INTERPRETED.  IT IS NOT THE
FUNCTION OF THIS COURT TO DISREGARD THE WILL OF CONGRESS IN THE
EXERCISE OF ITS CONSTITUTIONAL POWER. 

FN1  IN THE OPINION OF THE WRITER THERE WAS EVIDENCE IN UNITED STATES
V. SCHWIMMER, 279 U.S. 644, FROM WHICH THE DISTRICT COURT COULD AND
PRESUMABLY DID INFER THAT APPLICANT'S BEHAVIOR EVIDENCED A DISPOSITION,
PRESENT AND FUTURE, ACTIVELY TO RESIST ALL LAWS OF THE UNITED STATES
AND LAWFUL COMMANDS OF ITS OFFICERS FOR THE FURTHERING OF ANY MILITARY
ENTERPRISE OF THE UNITED STATES, AND ACTIVELY TO AID AND ENCOURAGE SUCH
RESISTANCE IN OTHERS, AND THIS THE DISTRICT COURT PRESUMABLY CONCLUDED
EVIDENCED A WANT OF ATTACHMENT OF THE APPLICANT TO THE PRINCIPLES OF
THE CONSTITUTION WHICH THE NATURALIZATION LAW REQUIRES TO BE EXHIBITED
BY THE BEHAVIOR OF THE APPLICANT, PRECEDING THE APPLICATION FOR
CITIZENSHIP. 

FN2  H.R. 3547, 71ST CONG., 1ST SESS., 71 CONG. REC. 2184; H.R. 297,
72D CONG., 1ST SESS., 75 CONG. REC. 95; H.R. 298, 72D CONG., 1ST SESS.,
75 CONG. REC. 95; S. 3275, 72D CONG., 1ST SESS., 75 CONG. REC. 2600;
H.R. 1528, 73D CONG., 1ST SESS., 77 CONG. REC. 90; H.R. 5170, 74TH
CONG., 1ST SESS., 79 CONG. REC. 1356; H.R. 8259, 75TH CONG., 1ST SESS.,
81 CONG. REC. 9193; S. 165, 76TH CONG., 1ST SESS., 84 CONG. REC. 67. 

FN3  HEARINGS ON H.R. 3547, PP. 12, 22, 29-57, 73-109, 169-180;
HEARINGS ON H.R. 297, PP. 4-7, 10, 12, 15-19, 41-48, 53-56, 66-81, 147,
148. 

FN4  HEARINGS ON H.R. 3547, PP. 57-65, 73, 146-169, 181-212; HEARINGS
ON H.R. 297, PP. 85-140. 

FN5  H.R. 1528, 73D CONG., 1ST SESS.; H.R. 5170, 74TH CONG., 1ST
SESS.; H.R. 8259, 75TH CONG., 1ST SESS. 

FN6  SECTION 307(A) OF THE NATIONALITY ACT, 8 U.S.C. SEC. 707(A),
PROVIDES THAT NO PERSON SHALL BE NATURALIZED UNLESS FOR A PERIOD OF
FIVE YEARS PRECEDING THE FILING OF HIS PETITION FOR NATURALIZATION HE
"HAS BEEN AND STILL IS A PERSON  ...  ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION OF THE UNITED STATES, AND WELL DISPOSED TO THE GOOD ORDER
AND HAPPINESS OF THE UNITED STATES."  SECTION 335(A) OF THE NATIONALITY
ACT, 8 U.S.C. SEC. 735(A), PROVIDES THAT BEFORE AN APPLICANT FOR
NATURALIZATION SHALL BE ADMITTED TO CITIZENSHIP, HE SHALL TAKE AN OATH
IN OPEN COURT THAT INTER ALIA HE WILL "SUPPORT AND DEFEND THE
CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AGAINST ALL
ENEMIES, FOREIGN AND DOMESTIC; ...  AND  ...  BEAR TRUE FAITH AND
ALLEGIANCE TO THE SAME  ..." 

MR. JUSTICE REED AND MR. JUSTICE FRANKFURTER JOIN IN THIS OPINION. 
..END :





QUEENSIDE HILLS CO. V. SAXL, 328 U.S. 80 


NO. 769.  ARGUED MARCH 28, 1946.  - DECIDED APRIL 22, 1946.  - 294 N.Y.
917, 63 N.E.2D 116, AFFIRMED. 


IN 1940 APPELLANT CONSTRUCTED A LODGING HOUSE IN NEW YORK, COMPLYING
WITH ALL APPLICABLE LAWS THEN IN FORCE.  IN 1944 NEW YORK AMENDED ITS
MULTIPLE DWELLING LAW SO AS TO PROVIDE THAT LODGING HOUSES OF "NON
FIREPROOF CONSTRUCTION EXISTING PRIOR TO THE ENACTMENT" OF THE
AMENDMENT SHOULD COMPLY WITH CERTAIN NEW REQUIREMENTS, INCLUDING THE
INSTALLATION OF AN AUTOMATIC WET PIPE SPRINKLER SYSTEM.  APPELLANT
ASSERTED THAT ITS BUILDING DID NOT CONSTITUTE A FIRE HAZARD OR A DANGER
TO ITS OCCUPANTS; THAT IT HAD A MARKET VALUE OF $25,000; THAT THE COST
OF COMPLYING WITH THE 1944 LAW WOULD BE $7,500; AND THAT THE BENEFITS
TO BE OBTAINED BY THE CHANGES WERE NEGLIGIBLE.  HELD: 

1.  THE LAW DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, SINCE IT IS WITHIN THE POLICE POWER OF THE STATE AND THE
OWNER OF PROPERTY DOES NOT ACQUIRE IMMUNITY AGAINST THE EXERCISE OF THE
POLICE POWER BY CONSTRUCTING IT IN FULL COMPLIANCE WITH EXISTING LAWS. 
P. 82. 

2.  IN THE ABSENCE OF A SHOWING THAT THERE ARE IN EXISTENCE OTHER
LODGING HOUSES OF THE SAME CATEGORY WHICH WILL ESCAPE ITS REQUIREMENTS,
THE LAW CAN NOT BE HELD TO VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT BECAUSE OF ITS FAILURE TO APPLY TO LODGING HOUSES
WHICH MIGHT BE ERECTED SUBSEQUENTLY; SINCE LACK OF EQUAL PROTECTION IS
FOUND IN THE ACTUAL EXISTENCE OF AN INVIDIOUS DISCRIMINATION AND NOT IN
THE MERE POSSIBILITY THAT THERE WILL BE LIKE OR SIMILAR CASES WHICH
WILL BE TREATED MORE LENIENTLY.  PP. 83-85. 

3.  THE WISDOM OF THE LEGISLATION AND THE NEED FOR IT ARE QUESTIONS
FOR THE LEGISLATURE.  P. 82. 

QUEENSIDE HILLS REALTY CO., INC. V. SAXL, COMMISSIONER OF HOUSING AND
BUILDINGS OF THE CITY OF NEW YORK. 

APPEAL FROM THE COURT OF APPEALS OF NEW YORK. 

APPELLANT SUED IN THE NEW YORK COURTS FOR A DECLARATORY JUDGMENT
HOLDING CERTAIN PROVISIONS OF THE NEW YORK MULTIPLE DWELLING LAW (L.
1929, C. 713) AS AMENDED IN 1944(L. 1944, C. 553) UNCONSTITUTIONAL AND
RESTRAINING THEIR ENFORCEMENT.  THE SUPREME COURT DISMISSED THE SUIT. 
THE APPELLATE DIVISION AFFIRMED.  269 APP. DIV. 691, 54 N.Y.S.2D 394. 
THE COURT OF APPEALS AFFIRMED, 294 N.Y. 917, 63 N.E.2D 116, CERTIFYING
BY ITS REMITTITUR THAT QUESTIONS INVOLVING THE FOURTEENTH AMENDMENT
WERE PRESENTED AND NECESSARILY PASSED UPON.  295 N.Y. 567, 64 N.E.2D
278.  AFFIRMED, P. 85. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1940 APPELLANT CONSTRUCTED A FOUR-STORY BUILDING ON THE BOWERY IN
NEW YORK CITY AND SINCE THAT TIME HAS OPERATED IT AS A LODGING HOUSE. 
IT WAS CONSTRUCTED SO AS TO COMPLY WITH ALL THE LAWS APPLICABLE TO SUCH
LODGING HOUSES AND IN FORCE AT THAT TIME.  NEW YORK AMENDED ITS
MULTIPLE DWELLING LAW  FN1  IN 1944,  FN2  PROVIDING, INTER ALIA, THAT
LODGING HOUSES "OF NON-FIREPROOF CONSTRUCTION EXISTING PRIOR TO THE
ENACTMENT OF THIS SUBDIVISION"  FN3  SHOULD COMPLY WITH CERTAIN NEW
REQUIREMENTS.  FN4  AMONG THESE WAS THE INSTALLATION OF AN AUTOMATIC
WET PIPE SPRINKLER SYSTEM.  APPELLANT RECEIVED NOTICE TO COMPLY WITH
THE NEW REQUIREMENTS AND THEREUPON INSTITUTED THIS SUIT IN THE NEW YORK
COURTS FOR A DECLARATORY JUDGMENT HOLDING THESE PROVISIONS OF THE 1944
LAW UNCONSTITUTIONAL AND RESTRAINING THEIR ENFORCEMENT. 

THE BILL ALLEGED THAT THE BUILDING WAS SAFE FOR OCCUPANCY AS A
LODGING HOUSE AND DID NOT CONSTITUTE A FIRE HAZARD OR A DANGER TO THE
OCCUPANTS; THAT IT COMPLIED WITH ALL BUILDING LAWS AND REGULATIONS AT
THE TIME OF ITS CONSTRUCTION; THAT PART OF IT WAS FIREPROOF AND THAT
THE REST WAS SO CONSTRUCTED AS NOT TO BE DANGEROUS TO OCCUPANTS; THAT
THE REGULATIONS EXISTING PRIOR TO 1944 WERE ADEQUATE AND SUFFICIENT TO
PREVENT LOSS OF LIFE IN LODGING HOUSES OF THIS PARTICULAR TYPE.  IT WAS
FURTHER ALLEGED THAT THIS LODGING HOUSE HAS A MARKET VALUE OF ABOUT
$25,000, THAT THE COST OF COMPLYING WITH THE 1944 LAW WOULD BE ABOUT
$7,500; AND THAT THE BENEFITS TO BE OBTAINED BY THE CHANGES WERE
NEGLIGIBLE.  BY REASON OF THOSE CIRCUMSTANCES THE 1944 LAW WAS ALLEGED
TO VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  IT WAS
ALSO ALLEGED TO VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT SINCE IT WAS APPLICABLE TO LODGING HOUSES "EXISTING" PRIOR TO
THE 1944 LAW BUT NOT TO IDENTICAL STRUCTURES ERECTED THEREAFTER. 
APPELLEE ANSWERED, DENYING THE MATERIAL ALLEGATIONS OF THE BILL, AND
MOVED TO DISMISS.  THE SUPREME COURT GRANTED THE MOTION.  THE APPELLATE
DIVISION AFFIRMED WITHOUT OPINION.  269 APP. DIV. 691, 54 N.Y.S.2D
394.  ON APPEAL TO THE COURT OF APPEALS THE JUDGMENT WAS LIKEWISE
AFFIRMED WITHOUT OPINION.  294 N.Y. 917, 63 N.E.2D 116.  THE CASE IS
HERE ON APPEAL, THE COURT OF APPEALS HAVING CERTIFIED BY ITS REMITTITUR
THAT QUESTIONS INVOLVING THE FOURTEENTH AMENDMENT WERE PRESENTED AND
NECESSARILY PASSED UPON.  295 N.Y. 567, 64 N.E.2D 278. 

LITTLE NEED BE SAID ON THE DUE PROCESS QUESTION.  WE ARE NOT
CONCERNED WITH THE WISDOM OF THIS LEGISLATION OR THE NEED FOR IT.
OLSEN V. NEBRASKA, 313 U.S. 236, 246.  PROTECTION OF THE SAFETY OF
PERSONS IS ONE OF THE TRADITIONAL USES OF THE POLICE POWER OF THE
STATES.  EXPERTS MAY DIFFER AS TO THE MOST APPROPRIATE WAY OF DEALING
WITH FIRE HAZARDS IN LODGING HOUSES.  APPELLANT, INDEED, SAYS THAT ITS
BUILDING, FAR FROM BEING A FIRE-TRAP, IS LARGELY FIREPROOF; AND TO THE
EXTENT THAT ANY FIRE HAZARDS EXIST, THEY ARE ADEQUATELY SAFEGUARDED BY
A FIRE ALARM SYSTEM, CONSTANT WATCHMAN SERVICE, AND OTHER SAFETY
ARRANGEMENTS.  BUT THE LEGISLATURE MAY CHOOSE NOT TO TAKE THE CHANCE
THAT HUMAN LIFE WILL BE LOST IN LODGING HOUSE FIRES AND ADOPT THE MOST
CONSERVATIVE COURSE WHICH SCIENCE AND ENGINEERING OFFER.  IT IS FOR THE
LEGISLATURE TO DECIDE WHAT REGULATIONS ARE NEEDED TO REDUCE FIRE
HAZARDS TO THE MINIMUM.  MANY TYPES OF SOCIAL LEGISLATION DIMINISH THE
VALUE OF THE PROPERTY WHICH IS REGULATED.  THE EXTREME CASES ARE THOSE
WHERE IN THE INTEREST OF THE PUBLIC SAFETY OR WELFARE THE OWNER IS
PROHIBITED FROM USING HIS PROPERTY.  REINMAN V. LITTLE ROCK, 237 U.S.
171; HADACHECK V. SEBASTIAN, 239 U.S. 394; PIERCE OIL CORP. V. HOPE,
248 U.S. 498.  WE ARE DEALING HERE WITH A LESS DRASTIC MEASURE.  BUT IN
NO CASE DOES THE OWNER OF PROPERTY ACQUIRE IMMUNITY AGAINST EXERCISE OF
THE POLICE POWER BECAUSE HE CONSTRUCTED IT IN FULL COMPLIANCE WITH THE
EXISTING LAWS.  HADACHECK V. SEBASTIAN, SUPRA, P. 410.  AND SEE
CHICAGO, B. & Q.R. CO. V. NEBRASKA, 170 U.S. 57; HUTCHINSON V.
VALDOSTA, 227 U.S. 303.  THE POLICE POWER IS ONE OF THE LEAST LIMITABLE
OF GOVERNMENTAL POWERS, AND IN ITS OPERATION OFTEN CUTS DOWN PROPERTY
RIGHTS.  BLOCK V. HIRSH, 256 U.S. 135, 155.  AND SEE PLYMOUTH COAL CO.
V. PENNSYLVANIA, 232 U.S. 531.  APPELLANT MAY HAVE A LODGING HOUSE FAR
LESS HAZARDOUS THAN THE OTHER EXISTING STRUCTURES REGULATED BY THE 1944
LAW.  YET A STATUTE MAY BE SUSTAINED THOUGH SOME OF THE OBJECTS
AFFECTED BY IT MAY BE WHOLLY INNOCENT.  PURITY EXTRACT CO. V. LYNCH,
226 U.S. 192, 204.  THE QUESTION OF VALIDITY TURNS ON THE POWER OF THE
LEGISLATURE TO DEAL WITH THE PRESCRIBED CLASS.  THAT POWER PLAINLY
EXISTS HERE. 

APPELLANT'S CLAIM OF LACK OF EQUAL PROTECTION IS BASED ON THE
FOLLOWING ARGUMENT:  THE 1944 LAW APPLIES ONLY TO EXISTING LODGING
HOUSES; IF A NEW LODGING HOUSE WERE ERECTED OR IF AN EXISTING BUILDING
WERE CONVERTED INTO A LODGING HOUSE, THE 1944 LAW WOULD BE
INAPPLICABLE.  AN EXACT DUPLICATE OF APPELLANT'S BUILDING, IF
CONSTRUCTED TODAY, WOULD NOT BE UNDER THE 1944 LAW AND HENCE COULD BE
LAWFULLY OPERATED WITHOUT THE INSTALLATION OF A WET PIPE SPRINKLER
SYSTEM.  THAT IS SAID TO BE A DENIAL OF EQUAL PROTECTION OF THE LAWS. 

THE DIFFICULTY IS THAT APPELLANT HAS NOT SHOWN THAT THERE ARE IN
EXISTENCE LODGING HOUSES OF THAT CATEGORY WHICH WILL ESCAPE THE LAW. 
THE ARGUMENT IS BASED ON AN ANTICIPATION THAT THERE MAY COME INTO
EXISTENCE A LIKE OR IDENTICAL CLASS OF LODGING HOUSES WHICH WILL BE
TREATED LESS HARSHLY.  BUT SO LONG AS THAT CLASS IS NOT IN EXISTENCE,
NO SHOWING OF LACK OF EQUAL PROTECTION CAN POSSIBLY BE MADE.  FOR UNDER
THOSE CIRCUMSTANCES THE BURDEN WHICH IS ON ONE WHO CHALLENGES THE
CONSTITUTIONALITY OF A LAW COULD NOT BE SATISFIED.  METROPOLITAN
CASUALTY INSURANCE CO. V. BROWNELL, 294 U.S. 580, 584.  THE LEGISLATURE
IS ENTITLED TO HIT THE EVIL THAT EXISTS.  PATSONE V. PENNSYLVANIA, 232
U.S. 138, 144; BRYANT V. ZIMMERMAN, 278 U.S. 63; BAIN PEANUT CO. V.
PINSON, 282 U.S. 499.  IT NEED NOT TAKE ACCOUNT OF NEW AND HYPOTHETICAL
INEQUALITIES THAT MAY COME INTO EXISTENCE AS TIME PASSES OR AS
CONDITIONS CHANGE.  SO FAR AS WE KNOW, THE 1944 LAW MAY HAVE BEEN
DESIGNED AS A STOP-GAP MEASURE TO TAKE CARE OF A PRESSING NEED UNTIL
MORE COMPREHENSIVE LEGISLATION COULD BE PREPARED.  IT IS COMMON
KNOWLEDGE THAT DUE TO WAR CONDITIONS THERE HAS BEEN LITTLE CONSTRUCTION
IN THIS FIELD IN RECENT YEARS.  BY THE TIME NEW LODGING HOUSES APPEAR
THEY, TOO, MAY BE PLACED UNDER THE 1944 LAW; OR DIFFERENT LEGISLATION
MAY BE ADOPTED TO TAKE CARE BOTH OF THE OLD AND THE NEW ON THE BASIS OF
PARITY.  OR STRICTER STANDARDS FOR NEW LODGING HOUSES MAY BE ADOPTED. 
IN ANY SUCH CASE THE ASSERTED DISCRIMINATION WOULD HAVE TURNED OUT TO
BE FANCIFUL, NOT REAL.  THE POINT IS THAT LACK OF EQUAL PROTECTION IS
FOUND IN THE ACTUAL EXISTENCE OF AN INVIDIOUS DISCRIMINATION (TRUAX V.
RAICH, 239 U.S. 33; SKINNER V. OKLAHOMA, 316 U.S. 535), NOT IN THE MERE
POSSIBILITY THAT THERE WILL BE LIKE OR SIMILAR CASES WHICH WILL BE
TREATED MORE LENIENTLY.  AFFIRMED. 

FN1  L. 1929, CH. 713; CONS.  L. CH. 61A. 

FN2  L. 1944, CH. 553. 

FN3  ID., SEC. 4. 

FN4  THIS FOLLOWED A DISASTROUS FIRE IN AN OLD LODGING HOUSE IN NEW
YORK CITY IN WHICH THERE WAS A CONSIDERABLE LOSS OF LIFE. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











SEAS SHIPPING CO. V. SIERACKI, 328 U.S. 85 


NO. 365.  ARGUED JANUARY 3, 1946.  - DECIDED APRIL 22, 1946.  - 149 F.2D
98, AFFIRMED. 


1.  A SHIPOWNER'S OBLIGATION OF SEAWORTHINESS, TRADITIONALLY OWED BY
SHIPOWNERS TO SEAMEN, EXTENDS TO A STEVEDORE WHO WAS INJURED WHILE
ABOARD AND LOADING THE SHIP, ALTHOUGH EMPLOYED BY AN INDEPENDENT
STEVEDORING CONTRACTOR ENGAGED BY THE OWNER TO LOAD THE SHIP.  PP. 89
100. 

(A)  THE OBLIGATION IS ESSENTIALLY A SPECIES OF LIABILITY WITHOUT
FAULT AND IS NEITHER LIMITED BY CONCEPTIONS OF NEGLIGENCE NOR
CONTRACTUAL IN CHARACTER.  PP. 90-94. 

(B)  IT IS NOT CONFINED TO SEAMEN WHO PERFORM THE SHIP'S SERVICE
UNDER IMMEDIATE HIRE OF THE OWNER, BUT EXTENDS TO THOSE WHO RENDER IT
WITH HIS CONSENT OR BY HIS ARRANGEMENT.  PP. 95-97. 

(C)  FOR PURPOSES OF THE LIABILITY, A STEVEDORE IS A SEAMAN, BECAUSE
HE IS DOING A SEAMAN'S WORK AND INCURRING A SEAMAN'S HAZARDS, AND HE IS
ENTITLED TO A SEAMAN'S TRADITIONAL PROTECTION.  P. 99. 

2.  BY GIVING LONGSHOREMEN THE RIGHTS OF COMPENSATION AFFORDED BY THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT AND MAKING THEM
EXCLUSIVE AS AGAINST THE EMPLOYER, CONGRESS HAS NOT WITHDRAWN FROM
LONGSHOREMEN THE PROTECTIONS GAINED UNDER THE MERCHANT MARINE ACT OF
1920 OR OTHER PROTECTIONS RELATING TO PERSONAL INJURY AVAILABLE TO THEM
UNDER GENERAL MARITIME LAW.  P. 100. 

(A)  THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT DID NOT
PURPORT TO MAKE THE STEVEDORE'S REMEDY FOR COMPENSATION AGAINST HIS
EMPLOYER EXCLUSIVE OF REMEDIES AGAINST OTHERS AND IT EXPRESSLY RESERVED
TO THE STEVEDORE A RIGHT OF ELECTION TO PROCEED AGAINST THIRD PARTIES
RESPONSIBLE FOR HIS INJURY.  P. 101. 

(B)  IT DID NOT NULLIFY ANY RIGHT OF A STEVEDORE AGAINST THE OWNER OF
THE SHIP, EXCEPT POSSIBLY WHEN HE IS HIRED BY THE OWNER.  P. 102. 

3.  A RIGHT PECULIAR TO THE LAW OF ADMIRALTY MAY BE ENFORCED EITHER
BY A SUIT IN ADMIRALTY OR BY ONE ON THE LAW SIDE OF THE COURT.  P. 88. 

4.  THE LIABILITY OF A SHIPOWNER FOR FAILURE TO MAINTAIN A SEAWORTHY
VESSEL RESTS UPON AN ENTIRELY DIFFERENT BASIS FROM THE LIABILITY OF
CONTRACTORS AND SUBCONTRACTORS WHO BUILT THE SHIP.  THEREFORE, THE
SHIPOWNER WOULD NOT BE JOINTLY LIABLE WITH THE BUILDERS BUT WOULD BE
LIABLE SEVERALLY.  P. 89. 

5.  WHEN ONE OF SEVERAL DEFENDANTS IN A SUIT BRINGS THE CAUSE HERE ON
CERTIORARI AND THE OTHERS ARE NOT NAMED AS RESPONDENTS OR SERVED IN
ACCORDANCE WITH RULE 38(3), THIS COURT IS PRECLUDED FROM MAKING ANY
DETERMINATION CONCERNING THE RIGHTS OR LIABILITIES OF THE OTHER
DEFENDANTS.  P. 89. 

SEAS SHIPPING CO., INC. V. SIERACKI. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

A STEVEDORE EMPLOYED BY AN INDEPENDENT STEVEDORING COMPANY SUED A
SHIPOWNER, THE CONTRACTOR WHO BUILT THE SHIP AND A SUBCONTRACTOR FOR
INJURIES SUSTAINED WHILE WORKING ABOARD THE SHIP AS A RESULT OF A
LATENT DEFECT IN A PART OF THE SHIP.  THE DISTRICT COURT GAVE JUDGMENT
AGAINST THE CONTRACTOR AND SUBCONTRACTOR BUT IN FAVOR OF THE
SHIPOWNER.  57 F.SUPP.  724.  THE CIRCUIT COURT OF APPEALS REVERSED AS
TO THE SHIPOWNER.  149 F.2D 98.  THIS COURT GRANTED CERTIORARI.  326
U.S. 700.  AFFIRMED, P. 103. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION IS WHETHER THE OBLIGATION OF SEAWORTHINESS,
TRADITIONALLY OWED BY AN OWNER OF A SHIP TO SEAMEN, EXTENDS TO A
STEVEDORE INJURED WHILE WORKING ABOARD THE SHIP. 

SIERACKI WAS EMPLOYED BY AN INDEPENDENT STEVEDORING COMPANY WHICH WAS
UNDER CONTRACT TO PETITIONER TO LOAD ITS SHIP, THE S. S. ROBIN
SHERWOOD.  ON DECEMBER 23, 1942, HE WAS ON THE VESSEL LOADING CARGO. 
THE WINCH HE OPERATED WAS CONTROLLED BY A TEN-TON BOOM AT NUMBER FIVE
HATCH.  ONE PART OF A FREIGHT CAR HAD BEEN LOWERED INTO THE HOLD.  THE
SECOND PART WEIGHED ABOUT EIGHT TONS.  WHILE IT WAS BEING PUT DOWN THE
SHACKLE SUPPORTING THE BOOM BROKE AT ITS CROWN, CAUSING THE BOOM AND
TACKLE TO FALL AND INJURE RESPONDENT. 

HE SUED PETITIONER AND TWO OTHER COMPANIES.  THESE WERE THE BETHLEHEM
STEEL COMPANY, TO WHICH THE MARITIME COMMISSION HAD AWARDED THE
CONTRACT FOR CONSTRUCTING THE SHIP, AND BETHLEHEM SPARROW'S POINT,
INC., WHICH HAD BUILT PART OF THE SHIP UNDER AGREEMENT WITH THE STEEL
COMPANY.  THE DISTRICT COURT FOUND THAT THE SHACKLE HAD BROKEN AS THE
RESULT OF A DEFECT WHICH HAD OCCURRED IN ITS FORGING.  THE BETHLEHEM
COMPANIES HAD PURCHASED THIS EQUIPMENT FROM ANOTHER CONCERN. 
NEVERTHELESS THE COURT HELD THEY WERE NEGLIGENT IN NOT HAVING TESTED IT
ADEQUATELY BEFORE INSTALLING IT.  BUT THE COURT CONSIDERED PETITIONER
TO BE UNDER NO SUCH OBLIGATION TO TEST  FN1 AND THEREFORE NOT
NEGLIGENT.  ACCORDINGLY, IT GAVE JUDGMENT AGAINST THE TWO BETHLEHEM
COMPANIES BUT IN FAVOR OF PETITIONER.  57 F.SUPP.  724. 

THE CIRCUIT COURT OF APPEALS REVERSED AS TO PETITIONER.  149 F.2D
98.  ACCEPTING THE DISTRICT COURT'S CONCLUSION THAT IT WAS NOT
NEGLIGENT, THE COURT OF APPEALS WAS OF THE OPINION THAT RESPONDENT
SHOULD RECOVER FOR THE SHIP'S LACK OF SEAWORTHINESS.  FN2  THE OPINION
EMPHASIZED THAT THE DECISION WAS NOVEL, NOTING "STATEMENTS AND
ASSUMPTIONS EACH WAY."  FN3  BECAUSE OF THE NOVELTY AND IMPORTANCE OF
THE QUESTION WE GRANTED CERTIORARI.  FN4  326 U.S. 700. 

THE FINDING THAT THE SHIP WAS UNSEAWORTHY IS NOT DISPUTED. 
PETITIONER SAYS, FIRST, THAT THE DOCTRINE OF UNSEAWORTHINESS IS
PECULIAR TO ADMIRALTY AND CANNOT BE APPLIED IN A SUIT BROUGHT ON THE
LAW SIDE OF THE COURT.  IT ALSO URGES THAT IN ANY EVENT THE LIABILITY
MAY NOT BE EXTENDED PROPERLY TO THE BENEFIT OF STEVEDORES AND
LONGSHOREMEN.  AND FINALLY PETITIONER ARGUES THAT, IF THE DOCTRINE IS
PROPERLY SO APPLICABLE, ITS LIABILITY IS ONLY SECONDARY TO THAT OF THE
BETHLEHEM COMPANIES, WHICH BOTH COURTS FOUND TO BE NEGLIGENT; AND
THEREFORE PETITIONER, THE NONNEGLIGENT DEFENDANT, SHOULD NOT BE HELD
"JOINTLY" LIABLE WITH THE NEGLIGENT ONES. 

AT THE OUTSET WE MAY DISMISS THE FIRST CONTENTION.  IT IS NOW WELL
SETTLED THAT A RIGHT PECULIAR TO THE LAW OF ADMIRALTY MAY BE ENFORCED
EITHER BY A SUIT IN ADMIRALTY OR BY ONE ON THE LAW SIDE OF THE COURT. 
CARLISLE PACKING CO. V. SANDANGER, 259 U.S. 255, 259; GARRETT V. MOORE
MCCORMACK CO., 317 U.S. 239, 243-244; THORNES V. SOCONY-VACUUM OIL CO.,
37 F.SUPP.  616.  FN5 

EQUALLY UNAVAILABLE IS THE CONTENTION CONCERNING THE SECONDARY
CHARACTER OF PETITIONER'S LIABILITY.  THAT LIABILITY, IF IT EXISTS, NOT
ONLY SOUNDS IN TORT,  FN6  BUT RESTS UPON AN ENTIRELY DIFFERENT BASIS
FROM THAT UPON WHICH RECOVERY HAS BEEN HAD AGAINST THE BETHLEHEM
COMPANIES.  SUCH A LIABILITY THEREFORE WOULD BE NOT JOINT BUT SEVERAL
AND THE JUDGMENT OF THE COURT OF APPEALS OBVIOUSLY WENT ON THIS VIEW. 
MOREOVER THE CONTENTION NECESSARILY AFFECTS THE BETHLEHEM COMPANIES, AT
ANY RATE IN RELATION TO POSSIBLE CLAIM OF INDEMNITY BY PETITIONER. 
THEY HAVE NOT BEEN NAMED AS RESPONDENTS HERE OR SERVED IN ACCORDANCE
WITH RULE 38(3).  CONSEQUENTLY WE ARE PRECLUDED FROM MAKING ANY
DETERMINATION CONCERNING THEIR RIGHTS OR LIABILITIES, WITH RELATION
EITHER TO PETITIONER OR TO RESPONDENT. 

THE NUB OF REAL CONTROVERSY LIES IN THE QUESTION WHETHER THE
SHIPOWNER'S OBLIGATION OF SEAWORTHINESS EXTENDS TO LONGSHOREMEN INJURED
WHILE DOING THE SHIP'S WORK ABOARD BUT EMPLOYED BY AN INDEPENDENT
STEVEDORING CONTRACTOR WHOM THE OWNER HAS HIRED TO LOAD OR UNLOAD THE
SHIP. 

THERE COULD BE NO QUESTION OF PETITIONER'S LIABILITY FOR RESPONDENT'S
INJURIES, INCURRED AS THEY WERE HERE, IF HE HAD BEEN IN PETITIONER'S
EMPLOY RATHER THAN HIRED BY THE STEVEDORING COMPANY.  THAT AN OWNER IS
LIABLE TO INDEMNIFY A SEAMAN FOR AN INJURY CAUSED BY THE
UNSEAWORTHINESS OF THE VESSEL OR ITS APPURTENANT APPLIANCES AND
EQUIPMENT HAS BEEN SETTLED LAW IN THIS COUNTRY EVER SINCE THE OSCEOLA,
189 U.S. 158.  MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96, 99, AND
AUTHORITIES CITED.  AND THE LIABILITY APPLIES AS WELL WHEN THE SHIP IS
MOORED AT A DOCK AS WHEN IT IS AT SEA.  SEE, E.G., THE EDITH GODDEN, 23
F. 43; WM. JOHNSON & CO. V. JOHANSEN, 86 F. 886; THE WACO, 3 F.2D 476. 

PETITIONER INSISTS, HOWEVER, THAT THE OBLIGATION FLOWS FROM, AND IS
CIRCUMSCRIBED BY THE EXISTENCE OF, THE CONTRACT BETWEEN THE OWNER OF
THE VESSEL AND THE SEAMAN.  ACCORDINGLY, SINCE THERE WAS NO SUCH
CONTRACT HERE, IT SAYS RESPONDENT CANNOT RECOVER.  RESPONDENT IS
EQUALLY INSISTENT THAT THE OWNER CANNOT SLOUGH OFF LIABILITY TO THOSE
WHO DO THE VESSEL'S WORK BY BRINGING AN INTERMEDIARY CONTRACTING
EMPLOYER BETWEEN HIMSELF AND THOSE WORKERS.  IN RESPONDENT'S VIEW THE
LIABILITY IS AN INCIDENT OF THE MARITIME SERVICE RENDERED, NOT MERELY
OF THE IMMEDIATE CONTRACTUAL RELATION OF EMPLOYMENT, AND HAS ITS ROOTS
IN THE RISKS THAT SERVICE PLACES UPON MARITIME WORKERS AND IN THE
POLICY OF THE LAW TO SECURE THEM INDEMNITY AGAINST SUCH HAZARDS. 

OBVIOUSLY THE NORM OF THE LIABILITY HAS BEEN HISTORICALLY AND STILL
IS THE CASE OF THE SEAMAN UNDER CONTRACT WITH THE VESSEL'S OWNER.  THIS
IS BECAUSE THE WORK OF MARITIME SERVICE HAS BEEN DONE LARGELY BY SUCH
PERSONS.  BUT IT DOES NOT FOLLOW NECESSARILY FROM THIS FACT THAT THE
LIABILITY EITHER AROSE EXCLUSIVELY FROM THE EXISTENCE OF A CONTRACTUAL
RELATION OR IS CONFINED TO SITUATIONS IN WHICH ONE EXISTS. 

THE ORIGINS ARE PERHAPS UNASCERTAINABLE.  FN7  BUT THAT FACT IN
ITSELF MAY BE SOME EVIDENCE THAT CONTRACT ALONE IS NEITHER THE SOLE
SOURCE OF THE LIABILITY NOR ITS ULTIMATE BOUNDARY.  FOR TO ASSUME THIS
WOULD BE AT ONCE TO PROJECT IDEAS OF CONTRACT BACKWARD INTO CENTURIES
GOVERNED MORE LARGELY THAN OUR OWN BY NOTIONS OF STATUS,  FN8  AND TO
EXCLUDE FROM THE PROTECTION ALL WHO DO THE WORK OF THE SEA WITHOUT
BENEFIT OF CONTRACT WITH THE OWNER.  IT MAY BE DOUBTED, FOR EXAMPLE,
THAT HE HAS EVER BEEN ABLE TO ESCAPE LIABILITY TO IMPRESSED SEAMEN, IN
WHOSE CASES TO SPEAK OF "CONTRACT" WOULD ONLY RATIONALIZE A
RESPONSIBILITY IMPOSED REGARDLESS OF CONSENSUAL RELATIONSHIP.  AND IT
WOULD HARDLY SEEM CONSISTENT WITH THE OBLIGATION'S BENEVOLENT PURPOSES
FN9  THAT THE OWNER MIGHT NULLIFY IT BY THE DEVICE OF HAVING ALL WHO
MAN THE SHIP HIRED BY OTHERS WILLING TO FURNISH MEN FOR SUCH SERVICE AT
SEA OR ASHORE. 

IT IS TRUE THAT THE LIABILITY FOR UNSEAWORTHINESS IS OFTEN SAID TO BE
AN INCIDENT OF THE SEAMAN'S CONTRACT.  BUT IN ALL INSTANCES WHICH HAVE
COME TO OUR ATTENTION THIS HAS BEEN IN SITUATIONS WHERE SUCH A CONTRACT
EXISTED.  FN10  NECESSARILY IN SUCH A SETTING THE STATEMENT COULD HAVE
NO REFERENCE TO ANY ISSUE OVER LIABILITY IN THE ABSENCE OF SUCH A
CONTRACTUAL RELATION.  ITS FUNCTION RATHER HAS BEEN TO REFUTE OTHER
SUGGESTED RESTRICTIONS WHICH MIGHT BE HELD TO APPLY ON THE FACTS.  MOST
OFTEN PERHAPS THESE HAVE BEEN LIMITATIONS ARISING FROM THE ERRONEOUS
IDEA THAT THE LIABILITY IS FOUNDED IN NEGLIGENCE AND THEREFORE MAY BE
DEFEATED BY THE COMMON-LAW DEFENSES OF CONTRIBUTORY NEGLIGENCE,
ASSUMPTION OF RISK AND THE FELLOW-SERVANT RULE.  MAHNICH V. SOUTHERN
S.S. CO., SUPRA; CF. CARLISLE PACKING CO. V. SANDANGER, 259 U.S. 255. 

BECAUSE RATIONALIZING THE LIABILITY AS ONE ATTACHED BY LAW TO THE
RELATION OF SHIPOWNER AND SEAMAN, WHERE THIS RESULTS FROM CONTRACT, MAY
HAVE BEEN THOUGHT USEFUL TO NEGATIVE THE IMPORTATION OF THOSE COMMON
LAW TORT LIMITATIONS DOES NOT MEAN, HOWEVER, THAT THE LIABILITY IS
ITSELF CONTRACTUAL OR THAT IT MAY NOT EXTEND TO SITUATIONS WHERE THE
SHIP'S WORK IS DONE BY OTHERS NOT IN SUCH AN IMMEDIATE RELATION OF
EMPLOYMENT TO THE OWNER.  THAT THE LIABILITY MAY NOT BE EITHER SO
FOUNDED OR SO LIMITED WOULD SEEM INDICATED BY THE STRESS THE CASES
UNIFORMLY PLACE UPON ITS RELATION, BOTH IN CHARACTER AND IN SCOPE, TO
THE HAZARDS OF MARINE SERVICE WHICH UNSEAWORTHINESS PLACES ON THE MEN
WHO PERFORM IT.  THESE, TOGETHER WITH THEIR HELPLESSNESS TO WARD OFF
SUCH PERILS AND THE HARSHNESS OF FORCING THEM TO SHOULDER ALONE THE
RESULTING PERSONAL DISABILITY AND LOSS, HAVE BEEN THOUGHT TO JUSTIFY
AND TO REQUIRE PUTTING THEIR BURDEN, IN SO FAR AS IT IS MEASURABLE IN
MONEY, UPON THE OWNER REGARDLESS OF HIS FAULT.  FN11  THOSE RISKS ARE
AVOIDABLE BY THE OWNER TO THE EXTENT THAT THEY MAY RESULT FROM
NEGLIGENCE.  AND BEYOND THIS HE IS IN POSITION, AS THE WORKER IS NOT,
TO DISTRIBUTE THE LOSS IN THE SHIPPING COMMUNITY WHICH RECEIVES THE
SERVICE AND SHOULD BEAR ITS COST. 

THESE AND OTHER CONSIDERATIONS ARISING FROM THE HAZARDS WHICH
MARITIME SERVICE PLACES UPON MEN WHO PERFORM IT, RATHER THAN ANY
CONSENSUAL BASIS OF RESPONSIBILITY, HAVE BEEN THE PARAMOUNT INFLUENCES
DICTATING THE SHIPOWNER'S LIABILITY FOR UNSEAWORTHINESS AS WELL AS ITS
ABSOLUTE CHARACTER.  IT IS ESSENTIALLY A SPECIES OF LIABILITY WITHOUT
FAULT, ANALOGOUS TO OTHER WELL KNOWN INSTANCES IN OUR LAW.  DERIVED
FROM AND SHAPED TO MEET THE HAZARDS WHICH PERFORMING THE SERVICE
IMPOSES, THE LIABILITY IS NEITHER LIMITED BY CONCEPTIONS OF NEGLIGENCE
NOR CONTRACTUAL IN CHARACTER.  MAHNICH V. SOUTHERN S.S. CO., SUPRA;
ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52; CARLISLE PACKING CO.
V. SANDANGER, SUPRA.  IT IS A FORM OF ABSOLUTE DUTY OWING TO ALL WITHIN
THE RANGE OF ITS HUMANITARIAN POLICY. 

ON PRINCIPLE WE AGREE WITH THE COURT OF APPEALS THAT THIS POLICY IS
NOT CONFINED TO SEAMEN WHO PERFORM THE SHIP'S SERVICE UNDER IMMEDIATE
HIRE TO THE OWNER, BUT EXTENDS TO THOSE WHO RENDER IT WITH HIS CONSENT
OR BY HIS ARRANGEMENT.  ALL THE CONSIDERATIONS WHICH GAVE BIRTH TO THE
LIABILITY AND HAVE SHAPED ITS ABSOLUTE CHARACTER DICTATE THAT THE OWNER
SHOULD NOT BE FREE TO NULLIFY IT BY PARCELLING OUT HIS OPERATIONS TO
INTERMEDIARY EMPLOYERS WHOSE SOLE BUSINESS IS TO TAKE OVER PORTIONS OF
THE SHIP'S WORK OR BY OTHER DEVICES WHICH WOULD STRIP THE MEN
PERFORMING ITS SERVICE OF THEIR HISTORIC PROTECTION.  THE RISKS
THEMSELVES ARISE FROM AND ARE INCIDENT IN FACT TO THE SERVICE, NOT
MERELY TO THE CONTRACT PURSUANT TO WHICH IT IS DONE.  THE BRUNT OF LOSS
CAST UPON THE WORKER AND HIS DEPENDENTS IS THE SAME, AND IS AS
INEVITABLE, WHETHER HIS PAY COMES DIRECTLY FROM THE SHIPOWNER OR ONLY
INDIRECTLY THROUGH ANOTHER WITH WHOM HE ARRANGES TO HAVE IT DONE.  THE
LATTER ORDINARILY HAS NEITHER RIGHT NOR OPPORTUNITY TO DISCOVER OR
REMOVE THE CAUSE OF THE PERIL AND IT IS DOUBTFUL, THEREFORE, THAT HE
OWES TO HIS EMPLOYEES, WITH RESPECT TO THESE HAZARDS, THE EMPLOYER'S
ORDINARY DUTY TO FURNISH A SAFE PLACE TO WORK, UNLESS PERHAPS IN CASES
WHERE THE PERILS ARE OBVIOUS OR HIS OWN ACTION CREATES THEM.  FN12  IF
NOT, NO SUCH OBLIGATION EXISTS UNLESS IT RESTS UPON THE OWNER OF THE
SHIP.  MOREOVER, HIS ABILITY TO DISTRIBUTE THE LOSS OVER THE INDUSTRY
IS NOT LESSENED BY THE FACT THAT THE MEN WHO DO THE WORK ARE EMPLOYED
AND FURNISHED BY ANOTHER.  HISTORICALLY THE WORK OF LOADING AND
UNLOADING IS THE WORK OF THE SHIP'S SERVICE, PERFORMED UNTIL RECENT
TIMES BY MEMBERS OF THE CREW.  FLOREZ V. THE SCOTIA, 35 F. 916; THE
GILBERT KNAPP, 37 F. 209, 210; THE SEGURANCA, 58 F. 908, 909.  THAT THE
OWNER SEEKS TO HAVE IT DONE WITH THE ADVANTAGES OF MORE MODERN
DIVISIONS OF LABOR DOES NOT MINIMIZE THE WORKER'S HAZARD AND SHOULD NOT
NULLIFY HIS PROTECTION. 

EVERY CONSIDERATION, THEREFORE, GIVING RISE TO THE LIABILITY AND
SHAPING ITS CHARACTER BESPEAKS INCLUSION OF MEN INTERMEDIATELY EMPLOYED
TO DO THIS WORK, SAVE ONLY THAT WHICH IS RELEVANT TO CONSENT AS A BASIS
FOR RESPONSIBILITY.  WE DO NOT THINK THIS IS THE ULTIMATE BASIS OF THE
LIABILITY WHERE THE SEAMAN HIRED BY THE VESSEL DOES THE WORK.  IT IS
ONLY THE SOURCE OF THE RELATION WHICH FURNISHES THE OCCASION FOR THE
LIABILITY, ATTACHED BY LAW TO PERFORMANCE OF THE SERVICE, TO COME INTO
PLAY.  NOT THE OWNER'S CONSENT TO LIABILITY, BUT HIS CONSENT TO
PERFORMANCE OF THE SERVICE DEFINES ITS BOUNDARY.  THAT THIS IS GIVEN BY
CONTRACT WITH THE WORKER'S EMPLOYER RATHER THAN WITH THE WORKER HIMSELF
DOES NOT DEFEAT THE RESPONSIBILITY.    ACCORDINGLY WE THINK THE COURT
OF APPEALS CORRECTLY HELD THAT THE LIABILITY ARISES AS AN INCIDENT, NOT
MERELY OF THE SEAMAN'S CONTRACT, BUT OF PERFORMING THE SHIP'S SERVICE
WITH THE OWNER'S CONSENT.  FOR THIS VIEW, IN ADDITION TO THE STATED
CONSIDERATIONS OF PRINCIPLE, THE COURT RIGHTLY FOUND SUPPORT IN THE
TREND AND POLICY OF THIS COURT'S DECISIONS, ESPECIALLY IN INTERNATIONAL
STEVEDORING CO. V. HAVERTY, 272 U.S. 50; ATLANTIC TRANSPORT CO. V.
IMBROVEK, 234 U.S. 52; AND URAVIC V. JARKA CO., 282 U.S. 234. 

THE HAVERTY CASE IS OF SPECIAL IMPORTANCE.  THE COURT OF APPEALS
SAID, WITH REFERENCE TO ITS BEARING AND THAT OF THE IMBROVEK DECISION:
"AND SO AN INJURY TO A STEVEDORE COMES WITHIN THE CLASSIFICATION OF A
MARINE TORT.  ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52.  IT
SEEMS, THEREFORE, THAT WHEN A MAN IS PERFORMING A FUNCTION ESSENTIAL TO
MARITIME SERVICE ON BOARD A SHIP THE FORTUITOUS CIRCUMSTANCES OF HIS
EMPLOYMENT BY THE SHIPOWNER OR A STEVEDORING CONTRACTOR SHOULD NOT
DETERMINE THE MEASURE OF HIS RIGHTS.  THIS IS THE VERY BASIS ON WHICH
THE JONES ACT  FN13  WAS HELD APPLICABLE TO GIVE REDRESS TO AN INJURED
STEVEDORE IN INTERNATIONAL STEVEDORING CO. V. HAVERTY  ..."  149 F.2D
98, 101. 

THE CONCLUSIONS ARE SOUND, NOTWITHSTANDING THE CASES ARE
DISTINGUISHABLE IN THEIR SPECIFIC RULINGS.  FROM THAT FACT IT DOES NOT
FOLLOW THAT EITHER THOSE RULINGS OR THE GROUNDS UPON WHICH THEY WENT
ARE IRRELEVANT OR WITHOUT FORCE FOR OUR PROBLEM.  IT IS TRUE THAT
NEGLIGENCE WAS THE BASIS OF RECOVERY IN BOTH CASES AND THAT IN EACH THE
STEVEDORING CONTRACTOR WAS HELD RESPONSIBLE.  BUT IT WAS OF THE GIST OF
THE JURISDICTIONAL QUESTION PRESENTED BY THE LIBEL IN IMBROVEK  FN14
THAT STEVEDORES INJURED WHILE WORKING ABOARD THE SHIP, THOUGH NOT
EMPLOYED BY ITS OWNER, ARE WITHIN THE TRADITIONAL PROTECTIONS AFFORDED
TO SEAMEN BY ADMIRALTY AND THAT "THE FORTUITOUS CIRCUMSTANCE" OF THEIR
EMPLOYMENT BY ONE OTHER THAN THE OWNER TO DO THE SHIP'S WORK NOT ONLY
DID NOT REMOVE THEM FROM THOSE PROTECTIONS, BUT BROUGHT THEIR EMPLOYERS
WITHIN THE PROTECTION OF THE LIABILITY TO SUPPLY THEM.  FN15 

THE SAME UNDERLYING CONSIDERATIONS WERE CONTROLLING IN THE HAVERTY
DECISION, ALTHOUGH THE LIABILITY ASSERTED AROSE UNDER AN ACT OF
CONGRESS AND THE COURT CAST ITS RULING IN TERMS OF LEGISLATIVE INTENT. 
THE ONLY FULCRUM FOR ITS ACTION WAS THE STATUTE'S UNDEFINED USE OF THE
TERM "SEAMEN" IN CONFERRING THE RIGHT OF RECOVERY UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT FOR THE EMPLOYER'S NEGLIGENCE.  41 STAT. 988,
1007.  RECOGNIZING THAT FOR MOST PURPOSES "STEVEDORES ARE NOT
'SEAMEN,'"  FN16  AND RELYING UPON IMBROVEK, THE COURT AGAIN STRESSED
THAT "THE WORK UPON WHICH THE PLAINTIFF WAS ENGAGED WAS A MARITIME
SERVICE FORMERLY RENDERED BY THE SHIP'S CREW," AND THAT THE STATUTE'S
POLICY WAS TO AFFORD COMPENSATION FOR INJURIES "AS PROPERLY PART OF THE
COST OF THE BUSINESS," THAT IS, OF THE MARITIME SERVICE RENDERED,
RATHER THAN BY THE CAPRICIOUS CIRCUMSTANCE OF EMPLOYMENT "BY A
STEVEDORE RATHER THAN BY THE SHIP."  AND THE URAVIC DECISION REJECTED
AN EQUALLY CAPRICIOUS DISCRIMINATION BASED UPON THE NATIONALITY OF THE
VESSEL'S FLAG. 

RUNNING THROUGH ALL OF THESE CASES, THEREFORE, TO SUSTAIN THE
STEVEDORE'S RECOVERY IS A COMMON CORE OF POLICY WHICH HAS BEEN
CONTROLLING, ALTHOUGH THE SPECIFIC ISSUE HAS VARIED FROM A QUESTION OF
ADMIRALTY JURISDICTION TO ONE OF COVERAGE UNDER STATUTORY LIABILITY
WITHIN THE ADMIRALTY FIELD.  IT IS THAT FOR INJURIES INCURRED WHILE
WORKING ON BOARD THE SHIP IN NAVIGABLE WATERS THE STEVEDORE IS ENTITLED
TO THE SEAMAN'S TRADITIONAL AND STATUTORY PROTECTIONS, REGARDLESS OF
THE FACT THAT HE IS EMPLOYED IMMEDIATELY BY ANOTHER THAN THE OWNER. 
FN17  FOR THESE PURPOSES HE IS, IN SHORT, A SEAMAN BECAUSE HE IS DOING
A SEAMAN'S WORK AND INCURRING A SEAMAN'S HAZARDS.  MOREOVER, TO MAKE
THE POLICY EFFECTIVE, HIS EMPLOYER IS BROUGHT WITHIN THE LIABILITY
WHICH IS PECULIAR TO THE EMPLOYMENT RELATION TO THE EXTENT THAT AND
BECAUSE HE ALSO UNDERTAKES THE SERVICE OF THE SHIP. 

IT WOULD BE ANOMALOUS IF SUCH A POLICY, EFFECTIVE TO CONTROL SUCH
ISSUES, WERE LESS EFFECTIVE WHEN THE QUESTION IS SIMPLY WHETHER THE
STEVEDORE IS ENTITLED TO THE TRADITIONAL SECURITIES AFFORDED BY THE LAW
OF THE SEA TO MEN WHO DO THE SHIP'S WORK.  NOR DOES IT FOLLOW FROM THE
FACT THAT THE STEVEDORE GAINS PROTECTIONS AGAINST HIS EMPLOYER
APPROPRIATE TO THE EMPLOYMENT RELATION AS SUCH, THAT HE LOSES OR NEVER
ACQUIRES AGAINST THE SHIPOWNER THE PROTECTIONS, NOT PECULIAR TO THAT
RELATION, WHICH THE LAW IMPOSES AS INCIDENTAL TO THE PERFORMANCE OF
THAT SERVICE.  AMONG THESE IS THE OBLIGATION OF SEAWORTHINESS.  IT IS
PECULIARLY AND EXCLUSIVELY THE OBLIGATION OF THE OWNER.  IT IS ONE HE
CANNOT DELEGATE.  FN18  BY THE SAME TOKEN IT IS ONE HE CANNOT CONTRACT
AWAY AS TO ANY WORKMAN WITHIN THE SCOPE OF ITS POLICY.  AS WE HAVE
SAID, HE IS AT LIBERTY TO CONDUCT HIS BUSINESS BY SECURING THE
ADVANTAGES OF SPECIALIZATION IN LABOR AND SKILL BROUGHT ABOUT BY MODERN
DIVISIONS OF LABOR.  HE IS NOT AT LIBERTY BY DOING THIS TO DISCARD HIS
TRADITIONAL RESPONSIBILITIES.  THAT THE LAW PERMITS HIM TO SUBSTITUTE
OTHERS FOR RESPONSIBILITIES PECULIAR TO THE EMPLOYMENT RELATION DOES
NOT MEAN THAT HE CAN THUS ESCAPE THE DUTY IT IMPOSES OF MORE GENERAL
SCOPE.  TO ALLOW THIS WOULD BE, IN SUBSTANTIAL EFFECT, TO CONVERT THE
ANCIENT LIABILITY FOR MARITIME TORT INTO A PURELY CONTRACTUAL
RESPONSIBILITY.  THIS WE ARE NOT FREE TO DO. 

IT REMAINS TO CONSIDER ONE OTHER ARGUMENT, NAMELY, THAT THE HAVERTY
DECISION HAS BEEN OVERRULED, IN EFFECT, BY THE ENACTMENT OF THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT OF MARCH 4, 1927,
44 STAT. 1424, 33 U.S.C. SEC. 901 FF., AND THEREFORE THE EFFECT OF THAT
DECISION AS FURNISHING ANY SUPPORT FOR INCLUDING LONGSHOREMEN WITHIN
THE OWNER'S OBLIGATION OF SEAWORTHINESS HAS BEEN NULLIFIED.  THE
ARGUMENT IS THAT BY GIVING LONGSHOREMEN THE RIGHTS OF COMPENSATION
AFFORDED BY THAT ACT AGAINST THE EMPLOYER AND MAKING THEM EXCLUSIVE,
CONGRESS HAS WITHDRAWN FROM THEM NOT ONLY THE PROTECTIONS GAINED BY
VIRTUE OF THE MERCHANT MARINE ACT OF 1920 UNDER THE HAVERTY DECISION,
BUT ALSO ALL OTHER PROTECTIONS RELATING TO PERSONAL INJURY WHICH
OTHERWISE MIGHT BE AVAILABLE TO THEM UNDER THE GENERAL MARITIME LAW. 
IN OTHER WORDS, IT IS CLAIMED THAT THE REMEDIES AFFORDED BY THE
LONGSHOREMEN'S LEGISLATION ARE EXCLUSIVE OF ALL OTHER REMEDIES FOR
INJURIES INCURRED ABOARD SHIP, WHETHER AGAINST THE EMPLOYER OR OTHERS. 

THIS VIEW CANNOT BE ACCEPTED.  APART FROM THE FACT THAT THE URAVIC
DECISION WAS RENDERED BY A UNANIMOUS COURT SOME THREE YEARS AFTER THE
LONGSHOREMEN'S AND HARBOR WORKERS' ACT WAS ADOPTED, WITH A LIKE RESULT
IN JAMISON V. ENCARNACION, 281 U.S. 635,  FN19  THE COMPELLING ANSWER
IS THAT CONGRESS BY THAT ACT NOT ONLY DID NOT PURPORT TO MAKE THE
STEVEDORE'S REMEDY FOR COMPENSATION AGAINST HIS EMPLOYER EXCLUSIVE OF
REMEDIES AGAINST OTHERS.  IT EXPRESSLY RESERVED TO THE STEVEDORE A
RIGHT OF ELECTION TO PROCEED AGAINST THIRD PERSONS RESPONSIBLE FOR HIS
INJURY  FN20  AND, IN CASE OF HIS ELECTION TO RECEIVE COMPENSATION, IT
PROVIDED FOR ASSIGNMENT OF HIS RIGHTS AGAINST THIRD PERSONS TO HIS
EMPLOYER, BINDING THE LATTER TO REMIT TO HIM ANY EXCESS OF THE RECOVERY
OVER THE COMPENSATION, EXPENSES OF RECOVERY, ETC.  FN21 

WE MAY TAKE IT THEREFORE THAT CONGRESS INTENDED THE REMEDY OF
COMPENSATION TO BE EXCLUSIVE AS AGAINST THE EMPLOYER.  SEE SWANSON V.
MARRA BROTHERS, INC., ANTE, P. 1; 33 U.S.C. SEC. 905.  BUT WE CANNOT
ASSUME, IN FACE OF THE ACT'S EXPLICIT PROVISIONS, THAT IT INTENDED THIS
REMEDY TO NULLIFY OR AFFECT OTHERS AGAINST THIRD PERSONS.  EXACTLY THE
OPPOSITE IS TRUE.  THE LEGISLATION THEREFORE DID NOT NULLIFY ANY RIGHT
OF THE LONGSHOREMAN AGAINST THE OWNER OF THE SHIP, EXCEPT POSSIBLY IN
THE INSTANCE, PRESUMABLY RARE, WHERE HE MAY BE HIRED BY THE OWNER.  THE
STATUTE HAD NO PURPOSE OR EFFECT TO ALTER THE STEVEDORE'S RIGHTS AS
AGAINST ANY BUT HIS EMPLOYER ALONE.  BEYOND THAT CONSEQUENCE, MOREOVER,
WE THINK IT HAD NONE TO ALTER EITHER THE BASIC POLICY OR THE
RATIONALIZATION OF THE HAVERTY DECISION.  BECAUSE THE RECOVERY UNDER
THE MERCHANT MARINE ACT OF 1920 WAS LIMITED TO THE EMPLOYER, THE
NECESSARY EFFECT OF THE LONGSHOREMEN'S AND HARBOR WORKERS' ACT,
LIKEWISE SO LIMITED, WAS TO SUBSTITUTE ITS REMEDY FOR THAT PROVIDED
UNDER THE PREEXISTING LEGISLATION AND THE HAVERTY DECISION'S
CONSTRUCTION OF IT.  THERE WAS NONE TO NULLIFY THE BASIC AND GENERALLY
APPLICABLE POLICY OF THAT DECISION OR TO AFFECT THE VALIDITY OF ITS
FOUNDATIONS IN OTHER APPLICATIONS. 

IT MAY BE ADDED THAT, BEYOND THE APPLICABILITY OF THOSE
CONSIDERATIONS TO SUSTAIN THE STEVEDORE'S RIGHT OF RECOVERY FOR BREACH
OF THE OWNER'S OBLIGATION OF SEAWORTHINESS, ARE OTHERS TO SUPPORT THE
STATUTORY POLICY OF GIVING HIS EMPLOYER RECOVERY OVER AGAINST THE OWNER
WHEN THE LATTER'S BREACH OF DUTY CASTS UPON THE EMPLOYER THE BURDEN OF
PAYING COMPENSATION.  THESE MAY FURNISH ADDITIONAL REASON FOR OUR
CONCLUSION.  WITH THEM HOWEVER WE ARE NOT IMMEDIATELY CONCERNED. 

THE JUDGMENT IS AFFIRMED. 

FN1  VISUAL INSPECTION WOULD NOT HAVE DISCLOSED THE DEFECT. 

FN2  THE DISTRICT COURT FOUND "THAT THE ACCIDENT OCCURRED BY REASON
OF UNSEAWORTHINESS OF THE VESSEL."  57 F.SUPP.  724, 726. 

FN3  THE REFERENCES WERE TO W.J. MCCAHAN CO. V. STOFFEL, 41 F.2D 651,
654(C.C.A. 3); CASSIL V. UNITED STATES EMERGENCY FLEET CORP., 289 F.
774(C.C.A. 9), SUGGESTING LIABILITY; AND, TO THE CONTRARY, PANAMA MAIL
S.S. CO. V. DAVIS, 79 F.2D 430(C.C.A. 3); BRYANT V. VESTLAND, 52 F.2D
1078(C.C.A. 5); LUCKENBACH S.S. CO. V. BUZYNSKI, 19 F.2D 871(C.C.A. 5),
REV'D ON ANOTHER GROUND, 277 U.S. 226; THE HOWELL, 273 F. 513(C.C.A.
2); THE STUDENT, 243 F. 807(C.C.A. 4); JEFFRIES V. DEHART, 102 F.
765(C.C.A. 3); THE MERCIER, 5 F.SUPP.  511, AFFIRMED, 72 F.2D
1008(C.C.A. 9). 

FN4  SEE IN ADDITION TO THE AUTHORITIES CITED BY THE CIRCUIT COURT OF
APPEALS, 149 F.2D AT 102; DECISION (1945) 45 COL. L. REV. 957; (1945)
59 HARV. L. REV. 127; (1946) 19 TEMP.  L.Q. 336, 339. 

FN5  NOTHING IN 28 U.S.C. SEC. 41(3) IS TO THE CONTRARY.  THE SECTION
PROVIDES THAT FEDERAL DISTRICT COURTS SHALL HAVE JURISDICTION "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  ..."  THIS DOES NOT MEAN THAT WHERE SUIT IS
BROUGHT AT LAW THE COURT IS RESTRICTED TO THE ENFORCEMENT OF COMMONLAW
RIGHTS.  CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372, 384; PANAMA R.
CO. V. JOHNSON, 264 U.S. 375, 387-388; PANAMA R. CO. V. VASQUEZ, 271
U.S. 557, 560-561.  "WHEN A CAUSE OF ACTION IN ADMIRALTY IS ASSERTED IN
A COURT OF LAW ITS SUBSTANCE IS UNCHANGED."  PANAMA AGENCIES CO. V.
FRANCO, 111 F.2D 263, 266. 

FN6  CF. TEXT INFRA; CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367;
ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52. 

FN7  IT HAS BEEN SUGGESTED THAT "THE SEAMAN'S RIGHT OF INDEMNITY FOR
INJURIES CAUSED BY DEFECTIVE APPLIANCES OR UNSEAWORTHINESS SEEMS TO
HAVE BEEN A DEVELOPMENT FROM HIS PRIVILEGE TO ABANDON A VESSEL
IMPROPERLY FITTED OUT."  THE ARIZONA V. ANELICH, 298 U.S. 110, 121,
NOTE 2; MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96, 99; CF. THE OSCEOLA,
189 U.S. 158. 

IT DOES NOT FOLLOW THAT THE RIGHT OF ABANDONMENT WOULD NOT EXIST IF
THE SEAMAN WERE HIRED BY ANOTHER AT THE INSTANCE OF THE VESSEL'S OWNER,
AND NO DECISION TO WHICH WE HAVE BEEN REFERRED SO HOLDS. 

FN8  SEE MAINE, ANCIENT LAW (1861).  FOR A MODERN CRITICISM, SEE
POUND, INTERPRETATIONS OF LEGAL HISTORY (1930) 53 ET SEQ. 

FN9  AN EXCELLENT SUMMARY IS GIVEN BY PARKER, J., IN THE STATE OF
MARYLAND, 85 F.2D 944, 945: 

"SEAMEN ARE THE WARDS OF ADMIRALTY, AND THE POLICY OF THE MARITIME
LAW HAS EVER BEEN TO SEE THAT THEY ARE ACCORDED PROPER PROTECTION BY
THE VESSELS ON WHICH THEY SERVE.  IN EARLY DAYS, THIS PROTECTION WAS
SUFFICIENTLY ACCORDED BY THE ENFORCEMENT OF THE RIGHT OF 'MAINTENANCE
AND CURE.'  VESSELS AND THEIR APPLIANCES WERE OF COMPARATIVELY SIMPLE
CONSTRUCTION, AND SEAMEN WERE IN QUITE AS GOOD POSITION ORDINARILY TO
JUDGE OF THE SEAWORTHINESS OF A VESSEL AS WERE HER OWNERS  ... 

"WITH THE ADVENT OF STEAM NAVIGATION, HOWEVER, IT WAS REALIZED, AT
LEAST IN THIS COUNTRY, THAT 'MAINTENANCE AND CURE' DID NOT AFFORD TO
INJURED SEAMEN ADEQUATE COMPENSATION IN ALL CASES FOR INJURIES
SUSTAINED.  VESSELS WERE NO LONGER THE SIMPLE SAILING SHIPS, OF WHOSE
SEAWORTHINESS THE SAILOR WAS AN ADEQUATE JUDGE, BUT WERE FULL OF
COMPLICATED AND DANGEROUS MACHINERY, THE OPERATION OF WHICH REQUIRED
THE USE OF MANY AND VARIED APPLIANCES AND A HIGH DEGREE OF TECHNICAL
KNOWLEDGE.  THE SEAWORTHINESS OF THE VESSEL COULD BE ASCERTAINED ONLY
UPON AN EXAMINATION OF THIS MACHINERY AND APPLIANCES BY SKILLED
EXPERTS.  IT WAS ACCORDINGLY HELD THAT THE DUTY OF THE VESSEL AND HER
OWNERS TO THE SEAMAN, IN THIS NEW AGE OF NAVIGATION, EXTENDED BEYOND
MERE 'MAINTENANCE AND CURE,' WHICH HAD BEEN SUFFICIENT IN THE SIMPLE
AGE OF SAILING SHIPS; THAT THE OWNERS OWED TO THE SEAMEN THE DUTY OF
FURNISHING A SEAWORTHY VESSEL AND SAFE AND PROPER APPLIANCES IN GOOD
ORDER AND CONDITION; AND THAT FOR FAILURE TO DISCHARGE SUCH DUTY THERE
WAS LIABILITY ON THE PART OF THE VESSEL AND HER OWNERS TO A SEAMAN
SUFFERING INJURY AS A RESULT THEREOF.  THE OSCEOLA, 189 U.S. 158, 175
...  IN THE EDITH GODDEN (D.C.)  23 F. 43, 46, WHICH DEALT WITH THE
CASE OF A SEAMAN INJURED BY A DEFECTIVE DERRICK, JUDGE ADDISON BROWN
POINTED OUT THAT IN DEALING WITH INJURIES SUSTAINED BY THE USE OF
MODERN APPLIANCES 'IT IS MORE REASONABLE AND EQUITABLE TO APPLY THE
ANALOGIES OF THE MUNICIPAL LAW IN REGARD TO THE OBLIGATION OF OWNERS
AND MASTERS, RATHER THAN TO EXTEND THE LIMITED RULE OF RESPONSIBILITY
UNDER THE ANCIENT MARITIME LAW TO THESE NEW, MODERN CONDITIONS, FOR
WHICH THOSE LIMITATIONS WERE NEVER DESIGNED.'"    SEE, IN ADDITION TO
THE CITED OPINION OF JUDGE BROWN, HIS OPINION IN THE CITY OF
ALEXANDRIA, 17 F. 390.  SEE ALSO STORGARD V. FRANCE & CANADA S.S.
CORP., 263 F. 545, 547-548; THE H.A. SCANDRETT, 87 F.2D 708, 711. 

FN10  IN ALL OF THE CASES CITED OR FOUND, EXCEPT PERHAPS THE
STEVEDORE CASES CITED IN NOTE 3, WHERE THE CAUSE OF ACTION HAS BEEN
BASED UPON UNSEAWORTHINESS, THERE WAS A CONTRACT.  THE "IMPLIED
WARRANTY" ON THE PART OF A SHIPOWNER THAT A SHIP IS SEAWORTHY HAS BEEN
READ NOT ONLY INTO CONTRACTS MADE WITH SEAMEN, HAMILTON V. UNITED
STATES, 268 F. 15, 21, BUT ALSO INTO CONTRACTS FOR THE CARRIAGE OF
GOODS BY SEA, BRADLEY FERTILIZER CO. V. THE EDWIN I. MORRISON, 153 U.S.
199, 210-211, ALTHOUGH THIS LIABILITY HAS BEEN MODIFIED BY THE HARTER
ACT, 27 STAT. 445, 46 U.S.C. SECS. 189-195; AND IN RARE INSTANCES
PERHAPS ALSO INTO CONTRACTS WITH PASSENGERS, CF. MUISE V. GORTON-PEW
VESSELS CO., 1938 A.M.C. 714, 718; RAINEY V. NEW YORK & P.S.S. CO., 216
F. 449, 453; ROBINSON, ADMIRALTY (1939) 306, NOTE 109. 

FN11  CONTRIBUTORY NEGLIGENCE HAS NEVER BEEN A DEFENSE IN SUITS
BROUGHT BY SEAMEN TO RECOVER FOR INJURIES DUE TO A SHIP'S
UNSEAWORTHINESS BUT HAS BEEN APPLIED MERELY IN MITIGATION OF DAMAGES. 
SOCONY-VACUUM OIL CO. V. SMITH, 305 U.S. 424, 429; THE ARIZONA V.
ANELICH, 298 U.S. 110, 122, AND CASES CITED.  AND IN THE MAX MORRIS,
137 U.S. 1, THE COURT HELD THAT IN A SUIT FOR PERSONAL INJURIES BROUGHT
IN ADMIRALTY BY A STEVEDORE THE ADMIRALTY RULE OF DIVIDED DAMAGES WAS
APPLICABLE.  IT WAS SAID IN THE ARIZONA V. ANELICH, AT 122-123, WITH
RESPECT TO THE DEFENSE OF ASSUMPTION OF RISK:  "THE SEAMAN ASSUMES THE
RISK NORMALLY INCIDENT TO HIS PERILOUS CALLING  ..., BUT IT HAS OFTEN
BEEN POINTED OUT THAT THE NATURE OF HIS CALLING, THE RIGID DISCIPLINE
TO WHICH HE IS SUBJECT, AND THE PRACTICAL DIFFICULTIES OF HIS AVOIDING
EXPOSURE TO RISKS OF UNSEAWORTHINESS AND DEFECTIVE APPLIANCES, MAKE
SUCH A DEFENSE  ...  PECULIARLY INAPPLICABLE TO SUITS BY SEAMEN TO
RECOVER FOR THE NEGLIGENT FAILURE TO PROVIDE A SEAWORTHY SHIP AND SAFE
APPLIANCES."  AS TO THE FELLOW-SERVANT RULE, SEE MAHNICH V. SOUTHERN
S.S. CO., 321 U.S. 96, 100-103; THE FRANK AND WILLIE, 45 F. 494, 495
496. 

IN THIS CONNECTION IS PERTINENT ALSO THE FREQUENTLY STATED RULE THAT
THE OBLIGATION OF A SHIPOWNER TO PROVIDE A SEAWORTHY SHIP IS
NONDELEGABLE.  SEE, E.G., LORD AND SPRAGUE, CASES ON THE LAW OF
ADMIRALTY (1926) 237, NOTE 4; THE ROLPH, 299 F. 52, 55; GLOBE S.S. CO.
V. MOSS, 245 F. 54, 55. 

FN12  IN ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52, THE
STEVEDORING COMPANY WAS HELD LIABLE TO ITS EMPLOYEE FOR NEGLIGENCE IN
FAILING TO FURNISH A SAFE PLACE TO WORK.  THIS CONSISTED IN ITS FAILURE
TO SECURE PROPERLY A BEAM WHICH SUPPORTED HATCH COVERS REMOVED BY IT IN
THE LOADING PROCESS.  THE LIBELANT JOINED THE SHIPOWNER WITH THE
STEVEDORING CONTRACTOR, BOTH BEING REPRESENTED BY THE SAME PROCTORS AND
ADVOCATES.  THE STEVEDORING COMPANY ACQUITTED THE SHIPOWNER AND THE
LIBEL WAS DISMISSED AS TO IT.  THE CASE, IN VIEW OF THESE
CIRCUMSTANCES, IS NOT AUTHORITY FOR THE VIEW THAT THE STEVEDORING
COMPANY IS LIABLE TO THE STEVEDORE, UNDER THE EMPLOYER'S OBLIGATION TO
FURNISH A SAFE WORKING PLACE, FOR THE HAZARDS SECURED AGAINST BY THE
SHIPOWNER'S OBLIGATION OF SEAWORTHINESS.  IT HOLDS ONLY THAT THE
STEVEDORING COMPANY IS LIABLE FOR ITS OWN NEGLIGENCE. 

IT HAS FREQUENTLY BEEN SAID THAT A SHIPOWNER OWES TO STEVEDORES THE
DUTY OF PROVIDING A SAFE PLACE TO WORK, SEE, E.G., THE JOSEPH B.
THOMAS, 86 F. 658, 660; THE NO. 34, 25 F.2D 602, 604, BUT CF. WILLIS V.
LYKES BROS. S.S. CO., 23 F.2D 488, 489, ALTHOUGH THE DUTY HAS AT TIMES
BEEN QUALIFIED BY STATEMENTS THAT IT DOES NOT EXTEND TO LATENT DEFECTS
THAT "A REASONABLE INSPECTION BY THE SHIPOWNER OR HIS AGENTS WOULD NOT
SHOW."  WHOLEY V. BRITISH & FOREIGN S.S. CO., 158 F. 379, 380,
AFFIRMED, 171 F. 399. 

FN13  MERCHANT MARINE ACT OF 1920, 41 STAT. 1007, 46 U.S.C. SEC. 688,
EXTENDING TO "SEAMEN" THE BENEFITS OF THE FEDERAL EMPLOYERS' LIABILITY
ACT, 45 U.S.C. SEC. 51 ET SEQ. 

FN14  IT WAS ARGUED THAT THE WRONG, ALTHOUGH TAKING PLACE ABOARD SHIP
IN NAVIGABLE WATERS, WAS NOT OF MARITIME CHARACTER AND HENCE NOT WITHIN
THE ADMIRALTY JURISDICTION OF THE DISTRICT COURT. 

FN15  IN ANSWER TO THE CONTENTION THAT THE SERVICE WAS NOT MARITIME
AND HENCE THE INDEPENDENTLY EMPLOYED STEVEDORE'S CLAIM WAS NOT WITHIN
THE ADMIRALTY JURISDICTION, THE COURT SAID:  "UPON ITS PROPER
PERFORMANCE DEPEND IN LARGE MEASURE THE SAFE CARRYING OF THE CARGO AND
THE SAFETY OF THE SHIP ITSELF; AND IT IS A SERVICE ABSOLUTELY NECESSARY
TO ENABLE THE SHIP TO DISCHARGE ITS MARITIME DUTY.  FORMERLY THE WORK
WAS DONE BY THE SHIP'S CREW; BUT, OWING TO THE EXIGENCIES OF INCREASING
COMMERCE AND THE DEMAND FOR RAPIDITY AND SPECIAL SKILL, IT HAS BECOME A
SPECIALIZED SERVICE DEVOLVING UPON A CLASS 'AS CLEARLY IDENTIFIED WITH
MARITIME AFFAIRS AS ARE THE MARINERS'."  234 U.S. 52, 61-62. 

FN16  THE COURT OF APPEALS IN THIS CASE LIKEWISE CAREFULLY LIMITED
ITS RULING IN RECOGNITION OF THE FACT THAT STEVEDORES ARE NOT ENTITLED
TO ALL THE PROTECTIONS A SEAMAN MAY CLAIM. 

IT IS IN RELATION TO LIABILITY FOR PERSONAL INJURY OR DEATH ARISING
IN THE COURSE OF HIS EMPLOYMENT ABOARD THE SHIP THAT THE POLICY OF OUR
LAW HAS BEEN MOST FAVORABLE TO THE STEVEDORE'S CLAIMS.  WHETHER OR NOT
THAT POLICY HAS BEEN INFLUENCED BY THE VICISSITUDES EXPERIENCED IN
FINDING PROTECTION FOR HIM AS A RESULT OF THE JENSEN DECISION, 244 U.S.
205; DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249, 252-253, THE REASONS
UNDERLYING THE POLICY ARE PERHAPS MORE NEARLY IDENTICAL IN THIS
APPLICATION, AS BETWEEN SEAMEN AND LONGSHOREMEN, THAN THOSE SUPPORTING
OTHER RIGHTS OF THE SEAMAN, SUCH AS THAT TO MAINTENANCE AND CURE. 

FN17  IN THIS CASE WE ARE NOT CONCERNED WITH THE QUESTION WHETHER THE
SAME POLICY EXTENDS TO INJURIES INCURRED ASHORE BY A STEVEDORE ENGAGED
IN THE SAME WORK, A MATTER WHICH IS RELEVANT HOWEVER IN SWANSON V.
MARRA BROTHERS, INC., ANTE, P. 1.  CF. O'DONNELL V. GREAT LAKES CO.,
318 U.S. 36. 

FN18  SEE NOTE 11. 

FN19  BOTH CASES WERE DETERMINED ON FACTS WHICH AROSE PRIOR TO
ENACTMENT OF THE STATUTE. 

FN20  SECTION 33(A) OF THE ACT PROVIDES:  "IF ON ACCOUNT OF A
DISABILITY OR DEATH FOR WHICH COMPENSATION IS PAYABLE UNDER THIS ACT
THE PERSON ENTITLED TO SUCH COMPENSATION DETERMINES THAT SOME PERSON
OTHER THAN THE EMPLOYER IS LIABLE IN DAMAGES, HE MAY ELECT, BY GIVING
NOTICE TO THE DEPUTY COMMISSIONER IN SUCH MANNER AS THE COMMISSION MAY
PROVIDE, TO RECEIVE SUCH COMPENSATION OR TO RECOVER DAMAGES AGAINST
SUCH THIRD PERSON."  44 STAT. 1440, 33 U.S.C. SEC. 933(A). 

FN21  SEE 33 U.S.C. SECS. 933(B) TO (G) INCLUSIVE.  AS TO THE RIGHT
OF ELECTION AND THE RIGHT TO RECEIVE COMPENSATION OR THE AMOUNT OF THE
RECOVERY AGAINST THIRD PERSONS, WHICHEVER IS GREATER, SEE CHAPMAN V.
HOAGE, 296 U.S. 526, 529; MARLIN V. CARDILLO, 95 F.2D 112; GRASSO V.
LORENTZEN, 149 F.2D 127; THE PACIFIC PINE, 31 F.2D 152; CUPO V.
ISTHMIAN S.S. CO., 56 F.SUPP.  45. 

THE STATUTE DID NOT COVER MEMBERS OF A CREW OF A VESSEL, THEREBY
SAVING TO THEM THEIR PREEXISTING RIGHTS UNDER THE MERCHANT MARINE ACT
OF 1920.  33 U.S.C. SEC. 902(3).  SEE SOUTH CHICAGO COAL & DOCK CO. V.
BASSETT, 309 U.S. 251, 256-257. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE STONE, DISSENTING. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON AND I THINK THE JUDGMENT
SHOULD BE REVERSED. 

RESPONDENT, THE EMPLOYEE OF A STEVEDORING COMPANY, WHICH HAD
CONTRACTED WITH PETITIONER TO LOAD ITS VESSEL LYING IN NAVIGABLE
WATERS, WAS INJURED WHILE SO EMPLOYED, IN CONSEQUENCE OF THE FAILURE OF
A SHACKLE, A PART OF THE SHIP'S TACKLE, DUE TO ITS HIDDEN DEFECTS.  THE
COURTS BELOW HAVE FOUND THAT TWO OTHER DEFENDANTS WERE LIABLE FOR
NEGLIGENCE IN FURNISHING THE DEFECTIVE SHACKLE.  THE COURTS WERE UNABLE
TO FIND THAT THE INJURY WAS ATTRIBUTABLE TO ANY NEGLIGENT ACT OR
OMISSION OF THE VESSEL OR ITS OWNER.  BUT THE COURT OF APPEALS BELOW
AND THIS COURT HAVE SUSTAINED A RECOVERY AGAINST PETITIONER ON THE
NOVEL GROUND THAT THE OWNER IS AN INSURER AGAINST INJURY CAUSED BY THE
UNSEAWORTHINESS OF THE VESSEL OR ITS APPLIANCES TO A MARITIME WORKER ON
BOARD, ALTHOUGH NOT A MEMBER OF THE CREW OR THE SHIP'S COMPANY, AND NOT
EMPLOYED BY THE VESSEL. 

THE COURT HAS THUS CREATED A NEW RIGHT IN MARITIME WORKERS, NOT
MEMBERS OF THE CREW OF A VESSEL, WHICH HAS NOT HITHERTO BEEN RECOGNIZED
BY THE MARITIME LAW OR BY ANY STATUTE.  FOR THIS I CAN FIND NO WARRANT
IN HISTORY OR PRECEDENT, NOR ANY SUPPORT IN POLICY OR IN PRACTICAL
NEEDS.  THE LIABILITY OF A VESSEL OR ITS OWNER TO MEMBERS OF THE CREW,
AS AN INSURER OF SEAWORTHINESS OF THE VESSEL AND ITS TACKLE, WAS NOT
RECOGNIZED BY THE MARITIME LAW OF ENGLAND UNTIL ESTABLISHED BY
STATUTE.  MERCHANT SHIPPING ACT, 39 & 40 VICT.  C. 80, SEC. 5; 57 & 58
VICT.  C. 60, SEC. 458.  IN THIS COUNTRY THE RIGHT OF THE SEAMAN TO
DEMAND, IN ADDITION TO MAINTENANCE AND CURE, INDEMNITY FOR INJURIES
RESULTING FROM UNSEAWORTHINESS, WAS FIRST RECOGNIZED BY THIS COURT IN
THE OSCEOLA, 189 U.S. 158.  IN LATER CASES IT HAS BEEN ESTABLISHED THAT
DUE DILIGENCE OF THE OWNER DOES NOT RELIEVE HIM FROM THIS OBLIGATION. 
SEE THE ARIZONA V. ANELICH, 298 U.S. 110, 121; SOCONY-VACUUM CO. V.
SMITH, 305 U.S. 424, 429, 432; MAHNICH V. SOUTHERN S.S. CO., 321 U.S.
96, 100, AND CASES CITED; THE NEPTUNO, 30 F. 925; THE FRANK & WILLIE,
45 F. 494; THE JULIA FOWLER, 49 F. 277; CF. THE EDWIN I. MORRISON, 153
U.S. 199, 210. 

THE LIABILITY OF THE VESSEL OR OWNER FOR MAINTENANCE AND CURE,
REGARDLESS OF THEIR NEGLIGENCE, WAS ESTABLISHED LONG BEFORE OUR MODERN
CONCEPTION OF CONTRACT.  BUT IT, LIKE THE LIABILITY TO INDEMNIFY THE
SEAMAN FOR INJURIES RESULTING FROM UNSEAWORTHINESS, HAS BEEN
UNIVERSALLY RECOGNIZED AS AN OBLIGATION GROWING OUT OF THE STATUS OF
THE SEAMAN AND HIS PECULIAR RELATIONSHIP TO THE VESSEL, AND AS A
FEATURE OF THE MARITIME LAW COMPENSATING OR OFFSETTING THE SPECIAL
HAZARDS AND DISADVANTAGES TO WHICH THEY WHO GO DOWN TO SEA IN SHIPS ARE
SUBJECTED.  THEY ARE EXPOSED TO THE PERILS OF THE SEA AND ALL THE RISKS
OF UNSEAWORTHINESS, WITH LITTLE OPPORTUNITY TO AVOID THOSE DANGERS OR
TO DISCOVER AND PROTECT THEMSELVES FROM THEM OR TO PROVE WHO IS
RESPONSIBLE FOR THE UNSEAWORTHINESS CAUSING THE INJURY. 

FOR THESE REASONS THE SEAMAN HAS BEEN GIVEN A SPECIAL STATUS IN THE
MARITIME LAW AS THE WARD OF THE ADMIRALTY, ENTITLED TO SPECIAL
PROTECTION OF THE LAW NOT EXTENDED TO LAND EMPLOYEES.  ROBERTSON V.
BALDWIN, 165 U.S. 275, 282-3; THE ARIZONA V. ANELICH, SUPRA, 122, 123;
CALMAR S.S. CORP. V. TAYLOR, 303 U.S. 525; SOCONY-VACUUM CO. V. SMITH,
SUPRA, 430; AGUILAR V. STANDARD OIL CO., 318 U.S. 724.  SEE ALSO JUDGE
ADDISON BROWN IN THE CITY OF ALEXANDRIA, 17 F. 390, 394, ET SEQ.
JUSTICE STORY SAID IN REED V. CANFIELD, FED. CAS. NO. 11,641, 1 SUMN. 
195, 199:  "SEAMEN ARE IN SOME SORT CO-ADVENTURERS UPON THE VOYAGE; AND
LOSE THEIR WAGES UPON CASUALTIES, WHICH DO NOT AFFECT ARTISANS AT
HOME.  THEY SHARE THE FATE OF THE SHIP IN CASES OF SHIPWRECK AND
CAPTURE.  THEY ARE LIABLE TO DIFFERENT RULES OF DISCIPLINE AND
SUFFERINGS FROM LANDSMEN.  THE POLICY OF THE MARITIME LAW, FOR GREAT,
AND WISE, AND BENEVOLENT PURPOSES, HAS BUILT UP PECULIAR RIGHTS,
PRIVILEGES, DUTIES, AND LIABILITIES IN THE SEA-SERVICE, WHICH DO NOT
BELONG TO HOME PURSUITS." 

IT IS FOR THESE REASONS THAT THROUGHOUT THE LONG HISTORY OF THE
MARITIME LAW THE RIGHT TO MAINTENANCE AND CURE, AND LATER THE RIGHT TO
INDEMNITY FOR INJURIES ATTRIBUTABLE TO UNSEAWORTHINESS, HAVE BEEN
CONFINED TO SEAMEN.  LONGSHOREMEN AND HARBOR WORKERS ARE IN A CLASS
VERY DIFFERENT FROM SEAMEN, AND ONE NOT CALLING FOR THE CREATION OF
EXTRAORDINARY OBLIGATIONS OF THE VESSEL OR ITS OWNER IN THEIR FAVOR,
MORE THAN OTHER CLASSES OF ESSENTIALLY LAND WORKERS.  UNLIKE MEMBERS OF
THE CREW OF A VESSEL THEY DO NOT GO TO SEA; THEY ARE NOT SUBJECT TO THE
RIGID DISCIPLINE OF THE SEA; THEY ARE NOT PREVENTED BY LAW OR SHIP'S
DISCIPLINE FROM LEAVING THE VESSEL ON WHICH THEY MAY BE EMPLOYED; THEY
HAVE THE SAME RECOURSE AS LAND WORKERS TO AVOID THE HAZARDS TO WHICH
THEY ARE EXPOSED, TO ASCERTAIN THE CAUSE OF THEIR INJURY AND TO PROVE
IT IN COURT. 

CONGRESS HAS RECOGNIZED THIS DIFFERENCE IN THEIR STATUS FROM THAT OF
SEAMEN.  ALTHOUGH IT HAS GIVEN EXTENSIVE CONSIDERATION TO IT IN
ENACTING THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 33
U.S.C. SEC. 901 FF., IN 1927, AND AGAIN, UPON ITS REVISION IN 1934 AND
1938, IN NO INSTANCE DID CONGRESS EXTEND TO LONGSHOREMEN AND HARBOR
WORKERS ANY OF THE SPECIAL RIGHTS OR PRIVILEGES CONFERRED ON SEAMEN BY
THE MARITIME LAW.  IN FACT CONGRESS, BY THE LONGSHOREMEN'S ACT, CUT OFF
FROM LONGSHOREMEN AND HARBOR WORKERS THE RIGHT EXTENDED TO THEM BY
JUDICIAL CONSTRUCTION OF THE JONES ACT, 46 U.S.C. SEC. 688,
INTERNATIONAL STEVEDORING CO. V. HAVERTY, 272 U.S. 50; URAVIC V. JARKA
CO., 282 U.S. 234, TO ENJOY THE SAME RIGHT OF RECOVERY FROM THE VESSEL
OR OWNER AS SEAMEN FOR NEGLIGENT INJURIES SUSTAINED WHILE WORKING ON
NAVIGABLE WATERS.  SWANSON V. MARRA BROTHERS, ANTE, P. 1.  WHILE THE
ACT GAVE TO LONGSHOREMEN AND STEVEDORES A RIGHT TO COMPENSATION AGAINST
THEIR EMPLOYER, IT NEITHER CONFERRED UPON NOR WITHHELD FROM THEM ANY
RIGHTS OF RECOVERY FOR SUCH INJURIES AGAINST THIRD PERSONS.  IT CAN
HARDLY BE SAID THAT THE FAILURE OF CONGRESS THUS TO ENLARGE THE RIGHTS
OF LONGSHOREMEN, SO AS TO MAKE THEM COMPARABLE TO THOSE OF SEAMEN, IS A
RECOGNITION OF EXISTING RIGHTS AGAINST THIRD PERSONS ARISING FROM THE
WARRANTY OF SEAWORTHINESS WHICH NO COURT HAS EVER RECOGNIZED* AND WHICH
GROWS OUT OF A STATUS WHICH LONGSHOREMEN HAVE NEVER OCCUPIED. 

*THE TWO CASES RELIED UPON BY THE CIRCUIT COURT OF APPEALS DO NOT
LEND SUPPORT TO ITS DECISION.  IN CASSIL V. UNITED STATES EMERGENCY
FLEET CORP., 289 F. 774, RECOVERY WAS SOUGHT ON THE GROUND THAT THE
VESSEL WAS NEGLIGENT, AND THE COURT MERELY SAID THAT THERE COULD BE NO
CLAIM AGAINST THE VESSEL UNLESS IT WAS UNSEAWORTHY.  THE COURT SEEMS TO
HAVE ASSUMED THAT A RECOVERY FOR UNSEAWORTHINESS COULD BE HAD ONLY IF
NEGLIGENCE WAS SHOWN.  SEE CASES CITED IN MAHNICH V. SOUTHERN S.S. CO.,
321 U.S. 96, 100.  IN W.J. MCCAHAN CO. V. STOFFEL, 41 F.2D 651, A
LONGSHOREMAN WAS ALLOWED RECOVERY ON THE GROUND OF NEGLIGENCE OF ONE OF
THE SHIP'S EMPLOYEES.    THERE ARE NO CONSIDERATIONS OF POLICY OR
PRACTICAL NEED WHICH SHOULD LEAD US, BY JUDICIAL FIAT, TO DO THAT WHICH
CONGRESS, AFTER A FULL STUDY OF THE SUBJECT, HAS FAILED TO DO.
WHEREVER THE INJURY OCCURS ON NAVIGABLE WATERS, CONGRESS HAS GIVEN TO
LONGSHOREMEN AND HARBOR WORKERS SUBSTANTIAL RIGHTS TO COMPENSATION
AGAINST THEIR EMPLOYER FOR INJURIES INFLICTED WITHOUT HIS FAULT.  SOUTH
CHICAGO CO. V. BASSETT, 309 U.S. 251.  IT HAS LEFT THEM FREE TO PURSUE
THEIR REMEDY FOR INJURIES RESULTING FROM NEGLIGENCE OF THIRD PARTIES,
INCLUDING IN THIS CASE THE VESSEL AND THE FURNISHERS OF THE DEFECTIVE
SHACKLE.  WHERE THE INJURY OCCURS ON LAND THEY ARE FREE TO PURSUE THE
REMEDY AFFORDED BY LOCAL LAW.  STATE INDUSTRIAL COMMISSION V.
NORDENHOLT CORP., 259 U.S. 263; SMITH & SON V. TAYLOR, 276 U.S. 179;
SWANSON V. MARRA BROTHERS, ANTE, P. 1.  THERE WOULD SEEM TO BE NO
OCCASION FOR US TO BE MORE GENEROUS THAN CONGRESS HAS BEEN BY
PRESENTING TO THEM PAID-UP ACCIDENT INSURANCE POLICIES AT THE EXPENSE
OF A VESSEL BY WHICH THEY HAVE NOT BEEN EMPLOYED, AND WHICH HAS NOT
FAILED IN ANY DUTY OF DUE CARE TOWARD THEM.  APPARENTLY UNDER THE
DECISION NOW RENDERED THE MARITIME WORKER EMPLOYED BY A VESSEL ON
NAVIGABLE WATERS, BUT NOT A MEMBER OF THE CREW, WOULD ENJOY RIGHTS OF
RECOVERY NOT ACCORDED TO MEMBERS OF THE CREW.  FOR HE WOULD BE ENTITLED
TO INDEMNITY UPON THE WARRANTY OF SEAWORTHINESS AS ARE MEMBERS OF THE
CREW AND ALSO TO THE BENEFITS OF THE LONGSHOREMEN'S AND HARBOR WORKERS'
ACT FROM WHICH MEMBERS OF THE CREW ARE EXCLUDED.  SEE SOUTH CHICAGO CO.
V. BASSETT, SUPRA, 255-6. 

NOR IS THE RULE NOW ANNOUNCED TO BE JUSTIFIED AS A MODERN AND
PREFERRED MODE OF DISTRIBUTING LOSSES INFLICTED WITHOUT FAULT. 
CONGRESS, IN ADOPTING THE LONGSHOREMEN'S ACT, HAS CHOSEN THE MODE OF
DISTRIBUTION IN THE CASE OF LONGSHOREMEN AND HARBOR WORKERS.  BY 33
U.S.C. SEC. 901 ET SEQ. IT HAS GIVEN TO THEM COMPENSATION FOR THEIR
INJURIES, IRRESPECTIVE OF FAULT.  SECTION 933 PROVIDES THAT IF A
STEVEDORE ENTITLED TO COMPENSATION ELECTS TO RECOVER DAMAGES AGAINST A
THIRD PERSON, THE EMPLOYER MUST PAY AS COMPENSATION A SUM EQUAL TO THE
EXCESS OF THE AMOUNT WHICH THE COMMISSION DETERMINES IS PAYABLE ON
ACCOUNT OF THE INJURY OVER THE AMOUNT RECOVERED AGAINST THE THIRD
PERSON.  THE WHOLE PHILOSOPHY OF LIABILITY WITHOUT FAULT IS THAT LOSSES
WHICH ARE INCIDENTAL TO SOCIALLY DESIRABLE CONDUCT SHOULD BE PLACED ON
THOSE BEST ABLE TO BEAR THEM.  CONGRESS HAS MADE A DETERMINATION THAT
THE EMPLOYER IS BEST ABLE TO BEAR THE LOSS WHICH, IN THIS INSTANCE,
COULD NOT BE AVOIDED BY THE EXERCISE OF DUE CARE.  THIS IS AN IMPLIED
DETERMINATION WHICH SHOULD PRECLUDE US FROM SAYING THAT THE SHIP OWNER
IS IN A MORE FAVORABLE POSITION TO ABSORB THE LOSS OR TO PASS IT ON TO
SOCIETY AT LARGE, THAN THE EMPLOYER. 
..END :









BELL V. HOOD, 327 U.S. 678 


NO. 344.  ARGUED JANUARY 29, 1946.  - DECIDED APRIL 1, 1946.  - 150 F.2D
96, REVERSED. 


1.  WHERE THE COMPLAINT SEEKS RECOVERY SQUARELY ON THE GROUND OF
VIOLATION OF PLAINTIFFS' RIGHTS UNDER THE FOURTH AND FIFTH AMENDMENTS,
A FEDERAL DISTRICT COURT HAS JURISDICTION OF A SUIT AGAINST AGENTS OF
THE FEDERAL GOVERNMENT TO RECOVER DAMAGES IN EXCESS OF $3,000 ALLEGED
TO HAVE BEEN SUFFERED BY THE PLAINTIFFS AS A RESULT OF SUCH VIOLATIONS
EVEN THOUGH NEITHER THE CONSTITUTION NOR THE CONGRESS HAS PROVIDED FOR
THE RECOVERY OF MONEY DAMAGES FOR SUCH VIOLATIONS AND THE COMPLAINT IS
SO FRAMED AS POSSIBLY TO STATE A COMMON LAW ACTION IN TORT OR
TRESPASS.  PP. 680-685. 

2.  WHERE A COMPLAINT IN A FEDERAL COURT IS SO DRAWN AS TO SEEK
RECOVERY DIRECTLY UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES,
THE COURT MUST ENTERTAIN THE SUIT, EXCEPT:  (A) WHERE THE ALLEGED CLAIM
APPEARS TO BE IMMATERIAL AND MADE SOLELY FOR THE PURPOSE OF OBTAINING
JURISDICTION, OR (B) WHERE IT IS WHOLLY INSUBSTANTIAL AND FRIVOLOUS. 
P. 682. 

3.  WHETHER THE COMPLAINT STATES A CAUSE OF ACTION ON WHICH RELIEF
COULD BE GRANTED IS A QUESTION OF LAW WHICH MUST BE DECIDED AFTER, AND
NOT BEFORE, THE COURT ASSUMES JURISDICTION.  P. 682. 

4.  THE ISSUE WHETHER FEDERAL COURTS CAN GRANT MONEY RECOVERY FOR
DAMAGES ALLEGED TO HAVE BEEN SUFFERED AS A RESULT OF FEDERAL AGENTS
VIOLATING THE FOURTH AND FIFTH AMENDMENTS HAS SUFFICIENT MERIT TO
WARRANT EXERCISE OF FEDERAL JURISDICTION FOR PURPOSES OF ADJUDICATING
IT.  P. 684. 

BELL ET AL. V. HOOD ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PETITIONERS BROUGHT SUIT IN A FEDERAL DISTRICT COURT AGAINST AGENTS
OF THE FEDERAL BUREAU OF INVESTIGATION TO RECOVER DAMAGES IN EXCESS OF
$3,000 ALLEGED TO HAVE BEEN SUSTAINED AS A RESULT OF VIOLATIONS OF
THEIR RIGHTS UNDER THE FOURTH AND FIFTH AMENDMENTS.  THE DISTRICT COURT
DISMISSED THE SUIT FOR WANT OF FEDERAL JURISDICTION.  THE CIRCUIT COURT
OF APPEALS AFFIRMED.  150 F.2D 96.  THIS COURT GRANTED CERTIORARI.  326
U.S. 706.  REVERSED, P. 685. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS BROUGHT THIS SUIT IN A FEDERAL DISTRICT COURT TO RECOVER
DAMAGES IN EXCESS OF $3,000 FROM THE RESPONDENTS WHO ARE AGENTS OF THE
FEDERAL BUREAU OF INVESTIGATION.  THE COMPLAINT ALLEGES THAT THE
COURT'S JURISDICTION IS FOUNDED UPON FEDERAL QUESTIONS ARISING UNDER
THE FOURTH AND FIFTH AMENDMENTS.  IT IS ALLEGED THAT THE DAMAGES WERE
SUFFERED AS A RESULT OF THE RESPONDENTS IMPRISONING THE PETITIONERS IN
VIOLATION OF THEIR CONSTITUTIONAL RIGHT TO BE FREE FROM DEPRIVATION OF
THEIR LIBERTY WITHOUT DUE PROCESS OF LAW, AND SUBJECTING THEIR PREMISES
TO SEARCH AND THEIR POSSESSIONS TO SEIZURE, IN VIOLATION OF THEIR
CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND
SEIZURES.  FN1  RESPONDENTS MOVED TO DISMISS THE COMPLAINT FOR FAILURE
TO STATE A CAUSE OF ACTION FOR WHICH RELIEF COULD BE GRANTED AND FOR
SUMMARY JUDGMENT ON THE GROUNDS THAT THE FEDERAL AGENTS ACTED WITHIN
THE SCOPE OF THEIR AUTHORITY AS OFFICERS OF THE UNITED STATES AND THAT
THE SEARCHES AND SEIZURES WERE INCIDENTAL TO LAWFUL ARRESTS AND WERE
THEREFORE VALID.  RESPONDENTS FILED AFFIDAVITS IN SUPPORT OF THEIR
MOTIONS AND PETITIONERS FILED COUNTER-AFFIDAVITS.  AFTER HEARING THE
MOTIONS THE DISTRICT JUDGE DID NOT PASS ON THEM BUT, ON HIS OWN MOTION,
DISMISSED THE SUIT FOR WANT OF FEDERAL JURISDICTION ON THE GROUND THAT
THIS ACTION WAS NOT ONE THAT "...  ARISES UNDER THE CONSTITUTION OR
LAWS OF THE UNITED STATES  ..."  AS REQUIRED BY 28 U.S.C. SEC. 41(1). 
THE CIRCUIT COURT OF APPEALS AFFIRMED ON THE SAME GROUND.  150 F.2D
96.  AT THE SAME TIME IT DENIED A MOTION MADE BY PETITIONERS ASKING IT
TO DIRECT THE DISTRICT COURT TO GIVE PETITIONERS LEAVE TO AMEND THEIR
COMPLAINT IN ORDER TO MAKE IT STILL MORE CLEARLY APPEAR THAT THE ACTION
WAS DIRECTLY GROUNDED ON VIOLATIONS OF RIGHTS ALLEGED TO STEM FROM THE
FOURTH AND FIFTH AMENDMENTS.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THE JURISDICTIONAL ISSUE INVOLVED. 

RESPONDENTS MAKE THE FOLLOWING ARGUMENT IN SUPPORT OF THE DISTRICT
COURT'S DISMISSAL OF THE COMPLAINT FOR WANT OF FEDERAL JURISDICTION. 
FIRST, THEY URGE THAT THE COMPLAINT STATES A CAUSE OF ACTION FOR THE
COMMON LAW TORT OF TRESPASS MADE ACTIONABLE BY STATE LAW AND THAT IT
THEREFORE DOES NOT RAISE QUESTIONS ARISING "UNDER THE CONSTITUTION OR
LAWS OF THE UNITED STATES."  SECOND, TO SUPPORT THIS CONTENTION,
RESPONDENTS MAINTAIN THAT PETITIONERS COULD NOT RECOVER UNDER THE
CONSTITUTION OR LAWS OF THE UNITED STATES, SINCE THE CONSTITUTION DOES
NOT EXPRESSLY PROVIDE FOR RECOVERY IN MONEY DAMAGES FOR VIOLATIONS OF
THE FOURTH AND FIFTH AMENDMENTS AND CONGRESS HAS NOT ENACTED A STATUTE
THAT DOES SO PROVIDE.  A MERE READING OF THE COMPLAINT REFUTES THE
FIRST CONTENTION AND, AS WILL BE SEEN, THE SECOND ONE IS NOT DECISIVE
ON THE QUESTION OF JURISDICTION OF THE FEDERAL COURT. 

WHETHER OR NOT THE COMPLAINT AS DRAFTED STATES A COMMON LAW ACTION IN
TRESPASS MADE ACTIONABLE BY STATE LAW, IT IS CLEAR FROM THE WAY IT WAS
DRAWN THAT PETITIONERS SEEK RECOVERY SQUARELY ON THE GROUND THAT
RESPONDENTS VIOLATED THE FOURTH AND FIFTH AMENDMENTS.  IT CHARGES THAT
THE RESPONDENTS CONSPIRED TO DO ACTS PROHIBITED BY THESE AMENDMENTS AND
ALLEGES THAT RESPONDENTS' CONDUCT PURSUANT TO THE CONSPIRACY RESULTED
IN DAMAGES IN EXCESS OF $3,000.  IT CANNOT BE DOUBTED THEREFORE THAT IT
WAS THE PLEADERS' PURPOSE TO MAKE VIOLATION OF THESE CONSTITUTIONAL
PROVISIONS THE BASIS OF THIS SUIT.  BEFORE DECIDING THAT THERE IS NO
JURISDICTION, THE DISTRICT COURT MUST LOOK TO THE WAY THE COMPLAINT IS
DRAWN TO SEE IF IT IS DRAWN SO AS TO CLAIM A RIGHT TO RECOVER UNDER THE
CONSTITUTION AND LAWS OF THE UNITED STATES.  FOR TO THAT EXTENT "THE
PARTY WHO BRINGS A SUIT IS MASTER TO DECIDE WHAT LAW HE WILL RELY UPON
AND  ...  DOES DETERMINE WHETHER HE WILL BRING A 'SUIT ARISING UNDER'
THE  ...  (CONSTITUTION OR LAWS) OF THE UNITED STATES BY HIS
DECLARATION OR BILL."  THE FAIR V. KOHLER DIE CO., 228 U.S. 22, 25. 
THOUGH THE MERE FAILURE TO SET OUT THE FEDERAL OR CONSTITUTIONAL CLAIMS
AS SPECIFICALLY AS PETITIONERS HAVE DONE WOULD NOT ALWAYS BE CONCLUSIVE
AGAINST THE PARTY BRINGING THE SUIT, WHERE THE COMPLAINT, AS HERE, IS
SO DRAWN AS TO SEEK RECOVERY DIRECTLY UNDER THE CONSTITUTION OR LAWS OF
THE UNITED STATES, THE FEDERAL COURT, BUT FOR TWO POSSIBLE EXCEPTIONS
LATER NOTED, MUST ENTERTAIN THE SUIT.  THUS ALLEGATIONS FAR LESS
SPECIFIC THAN THE ONES IN THE COMPLAINT BEFORE US HAVE BEEN HELD
ADEQUATE TO SHOW THAT THE MATTER IN CONTROVERSY AROSE UNDER THE
CONSTITUTION OF THE UNITED STATES.  WILEY V. SINKLER, 179 U.S. 58, 64
65; SWAFFORD V. TEMPLETON, 185 U.S. 487, 491-492.  THE REASON FOR THIS
IS THAT THE COURT MUST ASSUME JURISDICTION TO DECIDE WHETHER THE
ALLEGATIONS STATE A CAUSE OF ACTION ON WHICH THE COURT CAN GRANT RELIEF
AS WELL AS TO DETERMINE ISSUES OF FACT ARISING IN THE CONTROVERSY. 

JURISDICTION, THEREFORE, IS NOT DEFEATED AS RESPONDENTS SEEM TO
CONTEND, BY THE POSSIBILITY THAT THE AVERMENTS MIGHT FAIL TO STATE A
CAUSE OF ACTION ON WHICH PETITIONERS COULD ACTUALLY RECOVER.  FOR IT IS
WELL SETTLED THAT THE FAILURE TO STATE A PROPER CAUSE OF ACTION CALLS
FOR A JUDGMENT ON THE MERITS AND NOT FOR A DISMISSAL FOR WANT OF
JURISDICTION.  WHETHER THE COMPLAINT STATES A CAUSE OF ACTION ON WHICH
RELIEF COULD BE GRANTED IS A QUESTION OF LAW AND JUST AS ISSUES OF FACT
IT MUST BE DECIDED AFTER AND NOT BEFORE THE COURT HAS ASSUMED
JURISDICTION OVER THE CONTROVERSY.  IF THE COURT DOES LATER EXERCISE
ITS JURISDICTION TO DETERMINE THAT THE ALLEGATIONS IN THE COMPLAINT DO
NOT STATE A GROUND FOR RELIEF, THEN DISMISSAL OF THE CASE WOULD BE ON
THE MERITS, NOT FOR WANT OF JURISDICTION.  SWAFFORD V. TEMPLETON, 185
U.S. 487, 493, 494; BINDERUP V. PATHE EXCHANGE, 263 U.S. 291, 305-308. 
FN2  THE PREVIOUSLY CARVED OUT EXCEPTIONS ARE THAT A SUIT MAY SOMETIMES
BE DISMISSED FOR WANT OF JURISDICTION WHERE THE ALLEGED CLAIM UNDER THE
CONSTITUTION OR FEDERAL STATUTES CLEARLY APPEARS TO BE IMMATERIAL AND
MADE SOLELY FOR THE PURPOSE OF OBTAINING JURISDICTION OR WHERE SUCH A
CLAIM IS WHOLLY INSUBSTANTIAL AND FRIVOLOUS.  THE ACCURACY OF CALLING
THESE DISMISSALS JURISDICTIONAL HAS BEEN QUESTIONED.  THE FAIR V.
KOHLER DIE CO., SUPRA, 228 U.S. AT 25.  BUT CF. SWAFFORD V. TEMPLETON,
SUPRA. 

BUT AS WE HAVE ALREADY POINTED OUT THE ALLEGED VIOLATIONS OF THE
CONSTITUTION HERE ARE NOT IMMATERIAL BUT FORM RATHER THE SOLE BASIS OF
THE RELIEF SOUGHT.  NOR CAN WE SAY THAT THE CAUSE OF ACTION ALLEGED IS
SO PATENTLY WITHOUT MERIT AS TO JUSTIFY, EVEN UNDER THE QUALIFICATIONS
NOTED, THE COURT'S DISMISSAL FOR WANT OF JURISDICTION.  THE CIRCUIT
COURT OF APPEALS CORRECTLY STATED THAT "THE COMPLAINT STATES STRONG
CASES, AND IF THE ALLEGATIONS HAVE ANY FOUNDATION IN TRUTH, THE
PLAINTIFFS' LEGAL RIGHTS HAVE BEEN RUTHLESSLY VIOLATED."  PETITIONERS'
COMPLAINT ASSERTS THAT THE FOURTH AND FIFTH AMENDMENTS GUARANTEE THEIR
RIGHTS TO BE FREE FROM UNAUTHORIZED AND UNJUSTIFIED IMPRISONMENT AND
FROM UNREASONABLE SEARCHES AND SEIZURES.  THEY CLAIM THAT RESPONDENTS'
INVASION OF THESE RIGHTS CAUSED THE DAMAGES FOR WHICH THEY SEEK TO
RECOVER AND POINT FURTHER TO 28 U.S.C. SEC. 41(1) WHICH AUTHORIZES THE
FEDERAL DISTRICT COURTS TO TRY "SUITS OF A CIVIL NATURE" WHERE THE
MATTER IN CONTROVERSY "ARISES UNDER THE CONSTITUTION OR LAWS OF THE
UNITED STATES," WHETHER THESE ARE SUITS IN "EQUITY" OR AT "LAW." 
PETITIONERS ARGUE THAT THIS STATUTE AUTHORIZES THE COURT TO ENTERTAIN
THIS ACTION AT LAW AND TO GRANT RECOVERY FOR THE DAMAGES ALLEGEDLY
SUSTAINED.  RESPONDENTS CONTEND THAT THE CONSTITUTIONAL PROVISIONS HERE
INVOLVED ARE AGAINST THE FEDERAL GOVERNMENT AS A GOVERNMENT AND THAT 28
U.S.C. SEC. 41(1) DOES NOT AUTHORIZE RECOVERY IN MONEY DAMAGES IN SUITS
AGAINST UNAUTHORIZED OFFICIALS WHO ACCORDING TO RESPONDENTS ARE IN THE
SAME POSITION AS INDIVIDUAL TRESPASSERS. 

RESPONDENTS' CONTENTION DOES NOT SHOW THAT PETITIONERS' CAUSE IS
INSUBSTANTIAL OR FRIVOLOUS, AND THE COMPLAINT DOES IN FACT RAISE
SERIOUS QUESTIONS, BOTH OF LAW AND FACT, WHICH THE DISTRICT COURT CAN
DECIDE ONLY AFTER IT HAS ASSUMED JURISDICTION OVER THE CONTROVERSY. 
THE ISSUE OF LAW IS WHETHER FEDERAL COURTS CAN GRANT MONEY RECOVERY FOR
DAMAGES SAID TO HAVE BEEN SUFFERED AS A RESULT OF FEDERAL OFFICERS
VIOLATING THE FOURTH AND FIFTH AMENDMENTS.  THAT QUESTION HAS NEVER
BEEN SPECIFICALLY DECIDED BY THIS COURT.  THAT THE ISSUE THUS RAISED
HAS SUFFICIENT MERIT TO WARRANT EXERCISE OF FEDERAL JURISDICTION FOR
PURPOSES OF ADJUDICATING IT CAN BE SEEN FROM THE CASES WHERE THIS COURT
HAS SUSTAINED THE JURISDICTION OF THE DISTRICT COURTS IN SUITS BROUGHT
TO RECOVER DAMAGES FOR DEPRIVING A CITIZEN OF THE RIGHT TO VOTE IN
VIOLATION OF THE CONSTITUTION.  FN3  AND IT IS ESTABLISHED PRACTICE FOR
THIS COURT TO SUSTAIN THE JURISDICTION OF FEDERAL COURTS TO ISSUE
INJUNCTIONS TO PROTECT RIGHTS SAFEGUARDED BY THE CONSTITUTION  FN4  AND
TO RESTRAIN INDIVIDUAL STATE OFFICERS FROM DOING WHAT THE 14TH
AMENDMENT FORBIDS THE STATE TO DO.  FN5  MOREOVER, WHERE FEDERALLY
PROTECTED RIGHTS HAVE BEEN INVADED, IT HAS BEEN THE RULE FROM THE
BEGINNING THAT COURTS WILL BE ALERT TO ADJUST THEIR REMEDIES SO AS TO
GRANT THE NECESSARY RELIEF.  FN6  AND IT IS ALSO WELL SETTLED THAT
WHERE LEGAL RIGHTS HAVE BEEN INVADED, AND A FEDERAL STATUTE PROVIDES
FOR A GENERAL RIGHT TO SUE FOR SUCH INVASION, FEDERAL COURTS MAY USE
ANY AVAILABLE REMEDY TO MAKE GOOD THE WRONG DONE.  FN7  WHETHER THE
PETITIONERS ARE ENTITLED TO RECOVER DEPENDS UPON AN INTERPRETATION OF
28 U.S.C. SEC. 41(1) AND ON A DETERMINATION OF THE SCOPE OF THE FOURTH
AND FIFTH AMENDMENTS' PROTECTION FROM UNREASONABLE SEARCHES AND
DEPRIVATIONS OF LIBERTY WITHOUT DUE PROCESS OF LAW.  THUS, THE RIGHT OF
THE PETITIONERS TO RECOVER UNDER THEIR COMPLAINT WILL BE SUSTAINED IF
THE CONSTITUTION AND LAWS OF THE UNITED STATES ARE GIVEN ONE
CONSTRUCTION AND WILL BE DEFEATED IF THEY ARE GIVEN ANOTHER.  FOR THIS
REASON THE DISTRICT COURT HAS JURISDICTION.  GULLY V. FIRST NATIONAL
BANK, 299 U.S. 109, 112-113; SMITH V. KANSAS CITY TITLE CO., 255 U.S.
180, 199-200.  REVERSED. 

FN1  THE COMPLAINT STATED IN PART: 

"THAT ON OR ABOUT THE 17TH DAY OF DECEMBER, 1942, DEFENDANT R. B.
HOOD AND EACH OF THE OTHER DEFENDANTS, UNLAWFULLY CONSPIRED WITH EACH
OTHER TO ACT BEYOND THEIR AUTHORITY AS SAID FEDERAL BUREAU OF
INVESTIGATION AGENTS AND POLICE OFFICER RESPECTIVELY, AND AGREED THAT
THEY WOULD ABRIDGE THE CONSTITUTIONAL RIGHTS OF THE PLAINTIFFS AS
GUARANTEED BY THE FOURTH AND FIFTH AMENDMENTS TO THE CONSTITUTION OF
THE UNITED STATES TO BE FREE FROM THE DEPRIVATION OF LIBERTY AND
PROPERTY WITHOUT DUE PROCESS OF LAW, AND TO BE FREE FROM UNREASONABLE
SEARCHES AND SEIZURES, AND AGREED UNLAWFULLY TO SIMULTANEOUSLY, IN THE
EARLY MORNING OF DECEMBER 18TH, 1942, SEARCH THE HOMES OF THE
INDIVIDUAL PLAINTIFFS HEREIN WITHOUT ANY WARRANTS OF SEARCH OR SEIZURE,
AND UNLAWFULLY TO SEIZE THE PAPERS, DOCUMENTS AND EFFECTS OF SAID
PLAINTIFFS AND OF 'MANKIND UNITED,' AND FALSELY TO IMPRISON THE
INDIVIDUAL PLAINTIFFS BY UNLAWFULLY ARRESTING SOME OF THE INDIVIDUAL
PLAINTIFFS WITHOUT A WARRANT OF ARREST AND UNREASONABLY TO DELAY THE
TAKING OF ALL OF THE INDIVIDUAL PLAINTIFFS BEFORE A COMMITTING OFFICER,
IN ORDER TO EFFECTUATE THE UNLAWFUL SEARCHES AND SEIZURES AFORESAID. 

"THAT THEREAFTER, AND ON THE 18TH DAY OF DECEMBER, 1942,  ...  THE
DEFENDANTS AND EACH OF THEM, IN ORDER TO CARRY OUT THE TERMS AND
CONDITIONS OF THE ILLEGAL CONSPIRACY AFORESAID, AND SOLELY FOR THE
PURPOSE OF CARRYING OUT SAID TERMS AND CONDITIONS, DID ARREST AND
IMPRISON THE INDIVIDUAL PLAINTIFFS HEREIN, AND DID SEARCH THE HOMES OF
SAID PLAINTIFFS, AND SEIZE AND CARRY AWAY BOOKS, PAPERS AND EFFECTS OF
SAID INDIVIDUAL PLAINTIFFS AND OF SAID 'MANKIND UNITED.'" 

     .         .         .         .         . 

"...  BY REASON OF THE DEPRIVATION OF  ...  (THEIR) CONSTITUTIONAL
RIGHTS  ...  (PLAINTIFFS HAD) SUFFERED DAMAGES." 

FN2  FOR OTHER CASES DISCUSSING THE DISTINCTION BETWEEN QUESTIONS
GOING TO THE MERITS AND THOSE GOING TO THE JURISDICTION, SEE THE
FOLLOWING:  ILLINOIS CENTRAL R. CO. V. ADAMS, 180 U.S. 28; GENEVA
FURNITURE CO. V. KARPEN, 238 U.S. 254; AND SEE NASHVILLE, C. & ST. L.R.
CO. V. TAYLOR, 86 F. 168. 

FN3  WILEY V. SINKLER, SUPRA; SWAFFORD V. TEMPLETON, SUPRA.  SEE ALSO
BRICKHOUSE V. BROOKS, 165 F. 534, 543, IN WHICH A SIMILAR SUIT WAS HELD
TO BE WITHIN THE JURISDICTION OF THE FEDERAL COURT. 

FN4  PHILADELPHIA CO. V. STIMSON, 223 U.S. 605; HAYS V. SEATTLE, 251
U.S. 233; PENNOYER V. MCCONNAUGHY, 140 U.S. 1; CITY RAILWAY CO. V.
CITIZENS' RAILROAD CO., 166 U.S. 557; CITY OF MITCHELL V. DAKOTA
TELEPHONE CO., 246 U.S. 396, 407.    FN5  CHICAGO, B. & Q.R. CO. V.
CHICAGO, 166 U.S. 226; SEE ALSO EX PARTE VIRGINIA, 100 U.S. 339, 346,
347. 

FN6  MARBURY V. MADISON, 1 CRANCH 137, 162, 163; TEXAS & N.O.R. CO.
V. BROTHERHOOD OF CLERKS, 281 U.S. 548, 569, 570. 

FN7  SEE E.G. DOOLEY V. UNITED STATES, 182 U.S. 222, AND CASES CITED
AND DISCUSSED AT 228-230; BOARD OF COMM'RS V. UNITED STATES, 308 U.S.
343, 349-350. 

MR. JUSTICE REED JOINS IN THE OPINION AND THE RESULT.  HE DESIRES TO
ADD TO THE CASES CITED IN NOTE 7, BARRON V. BALTIMORE, 7 PET. 243, AND
BURDEAU V. MCDOWELL, 256 U.S. 465, 475. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE STONE AND MR. JUSTICE BURTON DISSENTING. 

THE DISTRICT COURT IS WITHOUT JURISDICTION AS A FEDERAL COURT UNLESS
THE COMPLAINT STATES A CAUSE OF ACTION ARISING UNDER THE CONSTITUTION
OR LAWS OF THE UNITED STATES.  WHETHER THE COMPLAINT STATES SUCH A
CAUSE OF ACTION IS FOR THE COURT, NOT THE PLEADER, TO SAY.  WHEN THE
PROVISION OF THE CONSTITUTION OR FEDERAL STATUTE AFFORDS A REMEDY WHICH
MAY IN SOME CIRCUMSTANCES BE AVAILED OF BY A PLAINTIFF, THE FACT THAT
HIS PLEADING DOES NOT BRING HIM WITHIN THAT CLASS AS ONE ENTITLED TO
THE REMEDY, GOES TO THE SUFFICIENCY OF THE PLEADING AND NOT TO THE
JURISDICTION.  THE FAIR V. KOHLER DIE CO., 228 U.S. 22, 25; BINDERUP V.
PATHE EXCHANGE, 263 U.S. 291, 306-308, AND CASES CITED.  BUT WHERE, AS
HERE, NEITHER THE CONSTITUTIONAL PROVISION NOR ANY ACT OF CONGRESS
AFFORDS A REMEDY TO ANY PERSON, THE MERE ASSERTION BY A PLAINTIFF THAT
HE IS ENTITLED TO SUCH A REMEDY CANNOT BE SAID TO SATISFY
JURISDICTIONAL REQUIREMENTS.  HENCE WE THINK THAT THE COURTS BELOW
RIGHTLY DECIDED THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION
BECAUSE NO CAUSE OF ACTION UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES WAS STATED. 

THE ONLY EFFECT OF HOLDING, AS THE COURT DOES, THAT JURISDICTION IS
CONFERRED BY THE PLEADER'S UNFOUNDED ASSERTION THAT HE IS ONE WHO CAN
HAVE A REMEDY FOR DAMAGES ARISING UNDER THE FOURTH AND FIFTH AMENDMENTS
IS TO TRANSFER TO THE FEDERAL COURT THE TRIAL OF THE ALLEGATIONS OF
TRESPASS TO PERSON AND PROPERTY, WHICH IS A CAUSE OF ACTION ARISING
WHOLLY UNDER STATE LAW.  FOR EVEN THOUGH IT BE DECIDED THAT PETITIONERS
HAVE NO RIGHT TO DAMAGES UNDER THE CONSTITUTION, THE DISTRICT COURT
WILL BE REQUIRED TO PASS UPON THE QUESTION WHETHER THE FACTS STATED BY
PETITIONERS GIVE RISE TO A CAUSE OF ACTION FOR TRESPASS UNDER STATE
LAW.  SEE HURN V. OURSLER, 289 U.S. 238. 
..END :






















NORTH AMERICAN CO. V. S.E.C., 327 U.S. 686 


NO. 1.  ARGUED NOVEMBER 15, 1945.  - DECIDED APRIL 1, 1946.  - 133 F.2D
148, AFFIRMED. 


1.  THE ENACTMENT OF SEC. 11(B)(1) OF THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, AUTHORIZING THE SECURITIES AND EXCHANGE COMMISSION
TO REQUIRE EACH PUBLIC UTILITY HOLDING COMPANY ENGAGED IN INTERSTATE
COMMERCE TO LIMIT ITS OPERATIONS TO A SINGLE INTEGRATED PUBLIC UTILITY
SYSTEM, WAS WITHIN THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE OF
THE CONSTITUTION.  PP. 700-707. 

(A)  WHILE THE OWNERSHIP OF SECURITIES, CONSIDERED SEPARATELY AND
ABSTACTLY, MAY NOT BE COMMERCE, THE OWNERSHIP OF SECURITIES OF
OPERATING COMPANIES HAS A REAL AND INTIMATE RELATION TO THE INTERSTATE
ACTIVITIES OF PUBLIC UTILITY HOLDING COMPANIES AND CANNOT BE
EFFECTIVELY DIVORCED THEREFROM; SUCH OWNERSHIP IS THE GENERATING FORCE
OF THE CONSTANT INTERSTATE FLOW OF REPORTS, LETTERS, EQUIPMENT,
SECURITIES, ACCOUNTS, INSTRUCTIONS AND MONEY WHICH CONSTITUTE THE LIFE
BLOOD OF HOLDING COMPANIES AND ALLOW ABUSES TO BE EFFECTUATED.  P.
702. 

(B)  CONGRESS MAY IMPOSE RELEVANT CONDITIONS AND REQUIREMENTS ON
THOSE WHO USE THE CHANNELS OF INTERSTATE COMMERCE, IN ORDER THAT THOSE
CHANNELS WILL NOT BECOME THE MEANS OF PROMOTING OR SPREADING EVIL,
WHETHER OF A PHYSICAL, MORAL OR ECONOMIC NATURE.  P. 705. 

(C)  THE FACT THAT AN EVIL MAY INVOLVE A CORPORATION'S FINANCIAL
PRACTICES, ITS BUSINESS STRUCTURE OR ITS SECURITY PORTFOLIO DOES NOT
DETRACT FROM THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE TO
PROMULGATE RULES IN ORDER TO DESTROY THAT EVIL - ONCE IT IS ESTABLISHED
THAT THE EVIL CONCERNS OR AFFECTS COMMERCE IN MORE STATES THAN ONE.  P.
706. 

(D)  CONGRESS HAVING FOUND THAT ECONOMIC EVILS RESULTING FROM
UNINTEGRATED PUBLIC UTILITY HOLDING COMPANY SYSTEMS WERE POLLUTING THE
CHANNELS OF INTERSTATE COMMERCE AND TOOK THE FORM OF TRANSACTIONS
OCCURRING IN AND CONCERNING MORE STATES THAN ONE, IT HAD POWER UNDER
THE COMMERCE CLAUSE TO ATTEMPT TO REMOVE THOSE EVILS BY ORDERING THE
HOLDING COMPANIES TO DIVEST THEMSELVES OF THE SECURITIES THAT MADE SUCH
EVILS POSSIBLE.  P. 706. 

2.  AN ORDER OF THE SECURITIES AND EXCHANGE COMMISSION REQUIRING A
PUBLIC UTILITY HOLDING COMPANY TO DIVEST ITSELF OF ITS SCATTERED
SUBSIDIARIES AND TO CONFINE ITS OPERATIONS TO A SINGLE INTEGRATED
PUBLIC UTILITY SYSTEM, PURSUANT TO SEC. 11(B)(1) OF THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935, DOES NOT TAKE PROPERTY WITHOUT JUST
COMPENSATION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  PP. 707-710. 

(A)  CONGRESS HAVING DETERMINED THAT THE ECONOMIC ADVANTAGES OF A
HOLDING COMPANY AT THE TOP OF AN UNINTEGRATED PUBLIC UTILITY SYSTEM ARE
NOT COMMENSURATE WITH THE RESULTING ECONOMIC DISADVANTAGES, THE FACT
THAT VALUABLE INTERESTS MAY BE AFFECTED DOES NOT, BY ITSELF, RENDER
THAT DETERMINATION INVALID UNDER THE DUE PROCESS CLAUSE.  P. 708. 

(B)  SINCE THE ACT DOES NOT CONTEMPLATE OR REQUIRE THE DUMPING OR
FORCED LIQUIDATION OF SECURITIES ON THE MARKET FOR CASH, BUT REQUIRES
ANY DIVESTMENT OR REORGANIZATION PLAN TO BE FAIR AND EQUITABLE AND TO
BE CAREFULLY SCRUTINIZED BY BOTH THE COMMISSION AND THE ENFORCING COURT
- THUS ENABLING THE ASSERTION AND PROTECTION OF ALL SHAREHOLDERS'
RIGHTS - IT CANNOT BE SAID, IN THE ABSENCE OF ANY ALLEGED UNFAIR PLAN
OF DIVESTMENT, THAT THE SHAREHOLDERS ARE ADVERSELY AFFECTED FROM A
CONSTITUTIONAL STANDPOINT BY THE OPERATION OF SEC. 11(B)(1).  P. 709. 

3.  CONGRESS HAVING DECIDED, WITHIN THE SCOPE OF ITS CONSTITUTIONAL
POWER AND DISCRETION, THAT IT IS NECESSARY TO REORGANIZE EXISTING
PUBLIC UTILITY HOLDING COMPANY SYSTEMS, THIS COURT CANNOT QUESTION THE
APPROPRIATENESS OR PROPRIETY OF ITS DECISION, EVEN THOUGH OTHER
OF THE KINDS THAT WERE FOUND TO GIVE BIRTH TO MANY OF THE EVILS ABOUT
WHICH CONGRESS WAS CONCERNED.  P. 710. 

4.  EVEN THOUGH A PARTICULAR HOLDING COMPANY MAY NOT HAVE ENGAGED IN
ANY OF THE EVILS ENUMERATED IN SEC. 1(B) OF THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, THIS DOES NOT MAKE THE APPLICATION OF SEC.
11(B)(1) TO IT UNCONSTITUTIONAL, SINCE THE POWER OF CONGRESS TO
LEGISLATE GENERALLY IN ORDER TO PREVENT POTENTIAL INJURY TO THE
NATIONAL ECONOMY FROM BECOMING A REALITY IS NOT LIMITED BY PROOF OF THE
EXISTENCE OF EVILS IN EACH PARTICULAR SITUATION.  P. 710. 

5.  IN THE LIGHT OF THE FACTS STATED IN THE OPINION AND PARTICULARLY
PETITIONER'S EXTENSIVE HOLDINGS OF THE SECURITIES OF ITS SUBSIDIARIES
AND THE PENETRATION OF LOCAL MANAGEMENTS WITH MEN SELECTED BY OR
HISTORICALLY RELATED TO PETITIONER, THE COMMISSION WAS JUSTIFIED IN
TREATING PETITIONER NOT AS ENGAGED SOLELY IN THE BUSINESS OF ACQUIRING
AND HOLDING STOCKS AND OTHER SECURITIES OF ITS SUBSIDIARIES FOR
INVESTMENT BUT AS A "HOLDING COMPANY" POSSESSING DOMINATION OVER ITS
SUBSIDIARIES OR THE POWER TO DOMINATE THEM WHEN AND IF NECESSARY, EVEN
THOUGH PETITIONER'S ACTIVE INTERVENTION IN THE AFFAIRS OF ITS
SUBSIDIARIES HAS BEEN OF A LIMITED CHARACTER AND OPERATIONAL POLICIES
HAVE BEEN LEFT ENTIRELY TO LOCAL MANAGEMENT.  PP. 692, 693. 

6.  PETITIONER CLEARLY IS ENGAGED IN INTERSTATE COMMERCE, SINCE IT IS
THE NUCLEUS OF AN EMPIRE OF CORPORATIONS COVERING 17 STATES AND THE
DISTRICT OF COLUMBIA, ITS INFLUENCE AND DOMINATION PERMEATE THE ENTIRE
SYSTEM, THE MAILS AND INSTRUMENTALITIES OF INTERSTATE COMMERCE ARE
VITAL TO THE FUNCTIONING OF THIS SYSTEM, AND SEVERAL OF ITS
SUBSIDIARIES ADMITTEDLY ARE ENGAGED IN INTERSTATE COMMERCE.  P. 694. 

7.  THE POWER OF THE COMMISSION TO DENY EXEMPTION UNDER SEC. 3(A)(1)
TO A PREDOMINANTLY LOCAL HOLDING COMPANY DOES NOT MEAN THAT A HOLDING
COMPANY HAVING NO RELATION WHATEVER TO INTERSTATE COMMERCE MAY BE
SUBJECTED TO SEC. 11(B)(1) OR TO ANY OTHER PROVISIONS OF THE ACT.  P.
699. 

NORTH AMERICAN COMPANY V. SECURITIES & EXCHANGE COMMISSION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

AFTER APPROPRIATE ADMINISTRATIVE PROCEEDINGS UNDER SEC. 11(B)(1) OF
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, THE SECURITIES AND
EXCHANGE COMMISSION ENTERED ORDERS LIMITING PETITIONER'S PROPERTIES TO
THOSE WHICH, IN THE JUDGMENT OF THE COMMISSION, COMPLIED WITH THE
STANDARDS OF THAT SECTION AND REQUIRING IT TO SEVER RELATIONSHIP WITH
ALL OF ITS OTHER PROPERTIES.  11 S.E.C. 194; 11 S.E.C. 715.  ON
PETITION FOR REVIEW, THE CIRCUIT COURT OF APPEALS SUSTAINED THE
COMMISSION'S ORDER.  133 F.2D 148.  THIS COURT GRANTED CERTIORARI.  318
U.S. 750.  SEE ALSO 320 U.S. 708.  AFFIRMED, P. 711. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

CONGRESS ENACTED THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49
STAT. 803, IN ORDER TO CORRECT GRAVE ABUSES WHICH IT HAD FOUND IN THE
USE OF THE HOLDING COMPANY DEVICE IN THE NATION'S ELECTRIC AND GAS
UTILITY INDUSTRIES.  THIS COURT IN ELECTRIC BOND & SHARE CO. V.
SECURITIES & EXCHANGE COMMISSION, 303 U.S. 419, HELD CONSTITUTIONAL THE
VARIOUS PROVISIONS OF THE ACT RELATING TO THE REGISTRATION OF HOLDING
COMPANIES AS THEREIN DEFINED.  IN THIS CASE WE ARE CALLED UPON TO
DETERMINE THE CONSTITUTIONALITY OF SEC. 11(B)(1) OF THE ACT,
AUTHORIZING THE SECURITIES AND EXCHANGE COMMISSION TO ACT TO BRING
ABOUT THE GEOGRAPHIC AND ECONOMIC INTEGRATION OF HOLDING COMPANY
SYSTEMS.  SPECIFICALLY, WE MUST DECIDE WHETHER THIS REQUIREMENT FALLS
WITHIN THE POWER OF CONGRESS TO REGULATE COMMERCE AMONG THE SEVERAL
STATES AND WHETHER IT VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

THE NORTH AMERICAN COMPANY, THE PETITIONER, IS A HOLDING COMPANY
WITHIN THE MEANING OF THE ACT, SEC. 2(A)(7), AND IS REGISTERED AS SUCH
WITH THE SECURITIES AND EXCHANGE COMMISSION.  FN1  THE COMMISSION
INSTITUTED APPROPRIATE ADMINISTRATIVE PROCEEDINGS AGAINST NORTH
AMERICAN UNDER SEC. 11(B)(1), THE PROVISIONS OF WHICH APPLY TO
REGISTERED HOLDING COMPANIES.  AS A RESULT, THE COMMISSION ENTERED
ORDERS LIMITING NORTH AMERICAN'S PROPERTIES TO THOSE WHICH, IN THE
COMMISSION'S JUDGMENT, COMPLIED WITH THE STANDARDS OF SEC. 11(B)(1) AND
COMPELLING IT TO SEVER RELATIONSHIPS WITH ALL ITS OTHER PROPERTIES. 
FN2  THE COURT BELOW, AFTER AFFIRMING THE ORDERS OF THE COMMISSION ON A
STATUTORY LEVEL, REJECTED NORTH AMERICAN'S CONSTITUTIONAL OBJECTIONS. 
133 F.2D 148.  ONLY THESE CONSTITUTIONAL ISSUES ARE NOW BEFORE US. 

AS WAS THE SITUATION IN THE ELECTRIC BOND & SHARE CO. CASE, NORTH
AMERICAN IS CLEARLY ENGAGED IN ACTIVITIES WHICH BRING IT WITHIN THE
AMBIT OF CONGRESSIONAL AUTHORITY.  NORTH AMERICAN IS A TYPICAL UTILITY
HOLDING COMPANY.  IT IS THE PINNACLE OF A GREAT PYRAMID OF
CORPORATIONS, THE MAJORITY OF WHICH OPERATE ELECTRIC AND GAS UTILITY
PROPERTIES.  THESE PROPERTIES ARE SCATTERED THROUGHOUT THE UNITED
STATES, MANY OF THEM SERVING LARGE CITIES AND CONTIGUOUS TERRITORIES. 
FN3 ELECTRIC ENERGY IS TRANSMITTED ACROSS STATE LINES BY NUMEROUS
COMPANIES IN THE PYRAMID OR SYSTEM.  FN4  AS OF DECEMBER 31, 1940,
THERE WERE SOME EIGHTY CORPORATIONS IN THE SYSTEM, WITH AN AGGREGATE
CAPITALIZED VALUE IN EXCESS OF $2,300,000,000.  ORGANIZED IN NEW JERSEY
IN 1890 AND MAINTAINING BUSINESS HEADQUARTERS IN NEW YORK CITY, NORTH
AMERICAN MAINTAINS DIRECT OR INDIRECT INTERESTS IN THESE CORPORATIONS
THROUGH THE MEDIUM OF STOCK OWNERSHIP.  IT IS THAT MEDIUM THAT BINDS
THE SYSTEM TOGETHER. 

NORTH AMERICAN OWNS STOCK DIRECTLY IN TEN OF THE CORPORATIONS,
HOLDING 79% OR MORE OF THE COMMON STOCK OF EIGHT OF THEM AND 17.71% AND
19.2%, RESPECTIVELY, OF THE VOTING SECURITIES OF THE OTHER TWO.  THREE
OF THESE DIRECT SUBSIDIARIES ARE REGISTERED HOLDING COMPANIES:  (1)
UNION ELECTRIC COMPANY OF MISSOURI, OPERATING IN AND AROUND ST. LOUIS,
MO., AND WITH SUBSIDIARIES OPERATING IN ILLINOIS AND IOWA AS WELL; (2)
WASHINGTON RAILWAY AND ELECTRIC COMPANY, WITH SUBSIDIARIES OPERATING IN
THE DISTRICT OF COLUMBIA AND ADJACENT TERRITORY IN VIRGINIA AND
MARYLAND; AND (3) NORTH AMERICAN LIGHT & POWER COMPANY, OPERATING
EXTENSIVE SYSTEMS IN KANSAS, MISSOURI, ILLINOIS AND IOWA IN ADDITION TO
BEING THE PARENT OF SEVERAL REGISTERED HOLDING COMPANIES. 

FOUR OF THE DIRECT SUBSIDIARIES OF NORTH AMERICAN ARE OPERATING
COMPANIES:  (1) CLEVELAND ELECTRIC ILLUMINATING COMPANY, SERVING
CLEVELAND, OHIO, AND SURROUNDING TERRITORY; (2) PACIFIC GAS & ELECTRIC
COMPANY, SERVING LARGE AREAS IN CALIFORNIA; (3) THE DETROIT EDISON
COMPANY, SERVING DETROIT AND VICINITY; AND (4) WISCONSIN ELECTRIC POWER
COMPANY, A HOLDING COMPANY WITH SUBSIDIARIES OPERATING AN INTEGRATED
ELECTRIC UTILITY SYSTEM IN WISCONSIN AND MICHIGAN. 

THE OTHER THREE DIRECT SUBSIDIARIES ARE (1) NORTH AMERICAN UTILITIES
SECURITIES CORPORATION, AN INVESTMENT TRUST; (2) WEST KENTUCKY COAL
COMPANY, WHICH OWNS AND OPERATES A COAL MINE IN KENTUCKY AND SELLS COAL
IN INTERSTATE COMMERCE; AND (3) 60 BROADWAY BUILDING CORPORATION, WHICH
OWNS THE OFFICE BUILDING IN NEW YORK CITY WHERE PETITIONER HAS ITS
OFFICES. 

THE VARIOUS COMPANIES IN THE NORTH AMERICAN SYSTEM PERFORM A VARIETY
OF FUNCTIONS FROM ELECTRIC AND GAS SERVICE TO RAILROAD TRANSPORTATION,
WAREHOUSING AND AMUSEMENT PARK OPERATIONS.  ALL TOLD, THEY CONDUCT
BUSINESS IN SEVENTEEN STATES AND THE DISTRICT OF COLUMBIA.  ELECTRIC
SERVICE ALONE IS PROVIDED FOR MORE THAN 3,000,000 CUSTOMERS IN AN AREA
OF ROUGHLY 165,000 SQUARE MILES. 

NORTH AMERICAN CLAIMS THAT ITS SOLE AND CONTINUOUS BUSINESS HAS BEEN
THAT OF ACQUIRING AND HOLDING FOR INVESTMENT PURPOSES STOCKS AND OTHER
SECURITIES OF THE SUBSIDIARIES, ITS RELATIONSHIP BEING ESSENTIALLY THAT
OF "A LARGE INVESTOR SEEKING TO PROMOTE THE SOUND DEVELOPMENT OF HIS
INVESTMENT."  ACTIVE INTERVENTION ON NORTH AMERICAN'S PART IN THE
ACTIVITIES OF THESE COMPANIES, IT IS TRUE, HAS BEEN OF A LIMITED
CHARACTER.  OPERATIONS AND OPERATIONAL POLICIES, THE COMMISSION FOUND,
HAVE BEEN LEFT ENTIRELY TO THE LOCAL MANAGEMENTS.  NOR HAS NORTH
AMERICAN SOLD THESE SUBSIDIARIES ANY SUPPLIES OR ENGINEERING SERVICE. 
THIS LACK OF ACTIVE INTERVENTION, HOWEVER, IS INDECISIVE.  IT APPEARS
TO HAVE RESULTED IN LARGE PART FROM NORTH AMERICAN'S SATISFACTION WITH
THE LOCAL MANAGEMENTS OF THE SUBSIDIARIES AND FROM THE FACT THAT THE
LOCAL MANAGEMENTS HAVE OFTEN INCLUDED MEN SELECTED BY OR HISTORICALLY
RELATED TO NORTH AMERICAN.  SEE DETROIT EDISON CO. V. SECURITIES &
EXCHANGE COMMISSION, 119 F.2D 730, 734-735; PACIFIC GAS & ELECTRIC CO.
V. SECURITIES & EXCHANGE COMMISSION, 127 F.2D 378, 383-384.  THE
COMMISSION WAS THUS WARRANTED IN CONSIDERING THE HARMONIZATION OF LOCAL
POLICIES WITH THOSE OF NORTH AMERICAN AS A FACT, THE ABSENCE OF
CONFLICTS MAKING AFFIRMATIVE ACTION BY NORTH AMERICAN UNNECESSARY.  BUT
IT DOES NOT FOLLOW THAT NORTH AMERICAN'S DOMINATION OF ITS SYSTEM WAS
ANY LESS REAL OR EFFECTIVE.  HISTORICAL TIES AND ASSOCIATIONS, COMBINED
WITH STRATEGIC HOLDINGS OF STOCK, CAN ON OCCASION SERVE AS A POTENT
SUBSTITUTE FOR THE MORE OBVIOUS MODES OF CONTROL.  SEE SOUTHERN PACIFIC
CO. V. BOGERT, 250 U.S. 483, 491-492; NATURAL GAS CO. V. SLATTERY, 302
U.S. 300, 307-308.  DOMINATION MAY SPRING AS READILY FROM SUBTLE OR
UNEXERCISED POWER AS FROM ARBITRARY IMPOSITION OF COMMAND.  TO CONCLUDE
OTHERWISE IS TO IGNORE THE REALITIES OF INTERCORPORATE RELATIONSHIPS. 
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 145-146.  IN
LIGHT OF THE EXTENSIVENESS OF NORTH AMERICAN'S HOLDINGS OF THE
SECURITIES OF ITS SUBSIDIARIES AND THE PENETRATION OF LOCAL MANAGEMENTS
WITH MEN OF NORTH AMERICAN BACKGROUND, THE COMMISSION WAS JUSTIFIED IN
TREATING NORTH AMERICAN AS POSSESSING DOMINATION OVER ITS SUBSIDIARIES
OR THE POWER TO DOMINATE THEM WHEN AND IF NECESSARY.  FN5 

BUT NORTH AMERICAN IN SOME RESPECTS HAS ACTUALLY INTERVENED IN THE
ACTIVITIES OF ITS SUBSIDIARIES.  IT HAS AFFIRMATIVELY PARTICIPATED IN
AND DOMINATED THEIR FINANCING OPERATIONS.  FN6 SO COMPLETELY HAS IT
TAKEN OVER THE PLANNING AND HANDLING OF THE VARIOUS FLOTATIONS OF
SECURITIES THAT NORTH AMERICAN URGED BEFORE THE COMMISSION, THOUGH IN
VAIN, THAT THE SUBSIDIARIES WERE INCOMPETENT TO HANDLE SUCH MATTERS AND
THAT IT WOULD BE HIGHLY UNECONOMICAL FOR THEM TO ATTEMPT TO DO SO.  AS
THE COMMISSION NOTED, THE ABILITY TO DOMINATE THIS FINANCING AND TO
CONTROL THE FLOW, THROUGH UNDERWRITING CHANNELS, OF MILLIONS OF DOLLARS
OF SECURITIES HAS BEEN OF GREAT VALUE AND BENEFIT TO NORTH AMERICAN, IN
ADDITION TO BEING OF AID TO THE SUBSIDIARIES.  NORTH AMERICAN HAS ALSO
PROVIDED THE SUBSIDIARIES WITH ADVISORY AND CONSULTATIVE FACILITIES IN
RELATION TO MANAGEMENT PROBLEMS; AND INTERCOMPANY COMMITTEES HAVE BEEN
CREATED TO SERVE AS CLEARING HOUSES FOR TECHNICAL AND ACCOUNTING
INFORMATION. 

THE INTERSTATE CHARACTER OF NORTH AMERICAN AND ITS SUBSIDIARIES IS
READILY APPARENT FROM THE COMMISSION'S SURVEY OF THEIR ACTIVITIES. 
NORTH AMERICAN IS MORE THAN A MERE INVESTOR IN ITS SUBSIDIARIES.  SEE
NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197, 353-354.  IT IS
THE NUCLEUS OF A FAR-FLUNG EMPIRE OF CORPORATIONS EXTENDING FROM NEW
YORK TO CALIFORNIA AND COVERING SEVENTEEN STATES AND THE DISTRICT OF
COLUMBIA.  ITS INFLUENCE AND DOMINATION PERMEATE THE ENTIRE SYSTEM AND
FREQUENTLY EVIDENCE THEMSELVES IN AFFIRMATIVE WAYS.  THE MAILS AND THE
INSTRUMENTALITIES OF INTERSTATE COMMERCE ARE VITAL TO THE FUNCTIONING
OF THIS SYSTEM.  THEY HAVE MORE THAN A CASUAL OR INCIDENTAL
RELATIONSHIP.  CF. WARE & LELAND V. MOBILE COUNTY, 209 U.S. 405;
BLUMENSTOCK BROS. V. CURTIS PUB. CO., 252 U.S. 436; FEDERAL BASEBALL
CLUB V. NATIONAL LEAGUE, 259 U.S. 200.  WITHOUT THEM, NORTH AMERICAN
WOULD BE UNABLE TO FLOAT THE VARIOUS SECURITY ISSUES OF ITS OWN OR OF
ITS SUBSIDIARIES, THEREBY SELLING SECURITIES TO RESIDENTS OF EVERY
STATE IN THE NATION.  WITHOUT THEM, NORTH AMERICAN WOULD BE UNABLE TO
EXERCISE AND MAINTAIN THE INFLUENCE ARISING FROM ITS LARGE STOCK
HOLDINGS, RECEIVING NOTICES AND REPORTS, SENDING PROXIES TO
STOCKHOLDERS' MEETINGS, COLLECTING DIVIDENDS AND INTEREST, AND
TRANSMITTING WHATEVER INSTRUCTIONS AND ADVICE MAY BE NECESSARY.  NOR
COULD NORTH AMERICAN MAINTAIN ITS OTHER RELATIONSHIPS AND CONTACTS WITH
ITS OWN SUBSIDIARIES WITHOUT THE USE OF THE MAILS AND FACILITIES OF
INTERSTATE COMMERCE.  SUCH INTERSTATE COMMERCIAL TRANSACTIONS INVOLVE
THE VERY ESSENCE OF NORTH AMERICAN'S BUSINESS.  SEE INTERNATIONAL
TEXTBOOK CO. V. PIGG, 217 U.S. 91.  THEY ENABLE IT "TO PROMOTE THE
SOUND DEVELOPMENT" OF ITS INVESTMENTS FROM ITS HEADQUARTERS IN NEW YORK
CITY.  IN SHORT, THEY ARE COMMERCE WHICH CONCERNS MORE STATES THAN
ONE.  GIBBONS V. OGDEN, 9 WHEAT.  1, 194; SECOND EMPLOYERS' LIABILITY
CASES, 223 U.S. 1, 46; MINNESOTA RATE CASES, 230 U.S. 352, 398.  AS
STATED BY THIS COURT IN ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103,
128, "INTERSTATE COMMUNICATION OF A BUSINESS NATURE, WHATEVER THE MEANS
OF SUCH COMMUNICATION, IS INTERSTATE COMMERCE REGULABLE BY CONGRESS
UNDER THE CONSTITUTION." 

MOREOVER, NORTH AMERICAN CONCEDES THAT FOUR OF ITS DIRECT UTILITY
SUBSIDIARIES, UNION ELECTRIC COMPANY OF MISSOURI, WASHINGTON RAILWAY
AND ELECTRIC COMPANY, NORTH AMERICAN LIGHT & POWER COMPANY AND
WISCONSIN ELECTRIC POWER COMPANY, TRANSMIT ENERGY ACROSS STATE LINES
AND HENCE ARE ENGAGED IN INTERSTATE COMMERCE.  IT FURTHER CONCEDES THAT
ITS SUBSIDIARY WEST KENTUCKY COAL COMPANY IS ENGAGED IN INTERSTATE
COMMERCE, ALTHOUGH CONTENDING THAT THE REMAINING FIVE DIRECT
SUBSIDIARIES ARE NOT SO ENGAGED.  IN VIEW OF NORTH AMERICAN'S VERY
SUBSTANTIAL STOCK INTEREST AND ITS DOMINATION AS TO THE AFFAIRS OF ITS
SUBSIDIARIES, AS WELL AS ITS LATENT POWER TO EXERCISE EVEN MORE
AFFIRMATIVE INFLUENCE, IT CANNOT HIDE BEHIND THE FACADE OF A MERE
INVESTOR.  THEIR ACTS ARE ITS ACTS IN THE SENSE THAT WHAT IS INTERSTATE
AS TO THEM IS INTERSTATE AS TO NORTH AMERICAN.  THESE SUBSIDIARIES THUS
ACCENTUATE AND ADD MATERIALLY TO THE INTERSTATE CHARACTER OF NORTH
AMERICAN.  ELECTRIC BOND & SHARE CO. V. SECURITIES & EXCHANGE
COMMISSION, SUPRA, 440.  THEY MAKE EVEN MORE INESCAPABLE THE CONCLUSION
THAT NORTH AMERICAN BEARS NOT ONLY A "HIGHLY IMPORTANT RELATION TO
INTERSTATE COMMERCE AND THE NATIONAL ECONOMY," ID., P. 441, BUT IS
ACTUALLY ENGAGED IN INTERSTATE COMMERCE.  IT IS THUS SUBJECT TO
APPROPRIATE REGULATORY MEASURES ADOPTED BY CONGRESS UNDER ITS COMMERCE
POWER. 

TURNING TO SEC. 11(B)(1)  FN7  AND ITS CONSTITUTIONAL IMPACT UPON
NORTH AMERICAN, WE FIND THAT IT DIRECTS THE COMMISSION TO APPLY ITS
PROVISIONS TO HOLDING COMPANIES ENGAGED IN INTERSTATE COMMERCE.  IN
ESSENCE, IT CONFINES THE OPERATIONS OF EACH HOLDING COMPANY SYSTEM TO A
SINGLE INTEGRATED PUBLIC UTILITY SYSTEM WITH PROVISION FOR THE
RETENTION OF ADDITIONAL SYSTEMS ONLY IF THEY ARE RELATIVELY SMALL,
LOCATED CLOSE TO THE SINGLE SYSTEM AND UNABLE TO OPERATE ECONOMICALLY
UNDER SEPARATE MANAGEMENT WITHOUT THE LOSS OF SUBSTANTIAL ECONOMIES; IN
ADDITION, OTHER HOLDINGS MAY BE RETAINED ONLY IF THEIR RETENTION IS
RELATED TO THE OPERATIONS OF THE RETAINED UTILITY PROPERTIES. 

THESE REQUIREMENTS OF SEC. 11(B)(1) APPLY ONLY TO REGISTERED HOLDING
COMPANIES.  A HOLDING COMPANY, BY STATUTORY DEFINITION, IS A COMPANY
THAT CONTROLS OR POSSESSES A CONTROLLING INFLUENCE OVER AN ELECTRIC OR
GAS UTILITY COMPANY.  SEC. 2(A)(7).  A HOLDING OF 10% OR MORE OF THE
OUTSTANDING VOTING SECURITIES OF SUCH A UTILITY COMPANY IS PRESUMED TO
BE SUFFICIENT TO CONSTITUTE SUCH A RELATIONSHIP, BUT THIS PRESUMPTION
MAY BE REBUTTED BY PROOF BEFORE THE COMMISSION OF A LACK OF CONTROL OR
CONTROLLING INFLUENCE.  ACCORDINGLY, A COMPANY THAT IS A MERE INVESTOR
IN UTILITY SECURITIES AND THAT DOES NOT CONTROL OR POSSESS A
CONTROLLING INFLUENCE OVER THE UTILITY COMPANIES NEED NOT COMPLY WITH
SEC. 11(B)(1).    A HOLDING COMPANY AS SO DEFINED MUST REGISTER AND
HENCE MUST OBEY THE COMMANDS OF SEC. 11(B)(1) IF IT USES THE MAILS OR
THE INSTRUMENTALITIES OF INTERSTATE COMMERCE DIRECTLY OR THROUGH ITS
SUBSIDIARIES IN THE OPERATION OF ITS BUSINESS.  FN8  THUS A HOLDING
COMPANY MAY SELL, TRANSPORT OR DISTRIBUTE GAS OR ELECTRIC ENERGY IN
INTERSTATE COMMERCE.  SEC. 4(A)(1).  IT MAY USE THE MAILS OR INTERSTATE
COMMERCE TO NEGOTIATE OR PERFORM SERVICE, SALES OR CONSTRUCTION
CONTRACTS WITH OTHER COMPANIES IN THE SYSTEM.  SEC. 4(A)(2).  IT MAY
USE THE MAILS OR INTERSTATE COMMERCE TO DISTRIBUTE OR MAKE PUBLIC
OFFERINGS FOR THE SALE OR EXCHANGE OF SECURITIES OF ITS OWN OR OF OTHER
SYSTEM COMPANIES.  SEC. 4(A)(3).  IT MAY USE THE MAILS OR INTERSTATE
COMMERCE TO ACQUIRE SECURITIES OR UTILITY ASSETS OF OTHER COMPANIES. 
SEC. 4(A)(4).  IT MAY ENGAGE IN A BUSINESS IN INTERSTATE COMMERCE. 
SEC. 4(A)(5).  OR IT MAY OWN OR CONTROL SECURITIES OF SUBSIDIARIES THAT
DO ANY OF THE FOREGOING ACTS.  SEC. 4(A)(6).  MOREOVER, SEC. 2(A)(28)
DEFINES "INTERSTATE COMMERCE," AS USED IN THESE AND OTHER PROVISIONS OF
THE ACT, TO MEAN "TRADE, COMMERCE, TRANSPORTATION, TRANSMISSION, OR
COMMUNICATION AMONG THE SEVERAL STATES OR BETWEEN ANY STATE AND ANY
PLACE OUTSIDE THEREOF." 

BY MAKING THESE ENUMERATED INTERSTATE TRANSACTIONS UNLAWFUL UNLESS
THE HOLDING COMPANY REGISTERS WITH THE COMMISSION AND BY EXTENDING SEC.
11(B)(1) TO REGISTERED HOLDING COMPANIES, CONGRESS HAS EFFECTIVELY
APPLIED SEC. 11(B)(1) TO THOSE HOLDING COMPANIES THAT ARE IN FACT IN
THE STREAM OF INTERSTATE ACTIVITY AND THAT AFFECT COMMERCE IN MORE
STATES THAN ONE.  CONGRESS HAS FURTHER DECLARED IN SEC. 1(C) THAT ALL
THE PROVISIONS OF THE ACT, THUS INCLUDING SEC. 11(B)(1), SHALL BE
INTERPRETED TO MEET THE PROBLEMS AND REMOVE THE EVILS CONNECTED WITH
PUBLIC UTILITY HOLDING COMPANIES "WHICH ARE ENGAGED IN INTERSTATE
COMMERCE OR IN ACTIVITIES WHICH DIRECTLY AFFECT OR BURDEN INTERSTATE
COMMERCE  ..."  SECTION 11(B)(1) IS THUS CLEARLY AND UNMISTAKABLY
APPLICABLE TO HOLDING COMPANIES ENGAGED IN INTERSTATE COMMERCE. 

NOT ALL HOLDING COMPANIES THAT ARE ENGAGED IN INTERSTATE ACTIVITIES,
HOWEVER, MUST NECESSARILY COMPLY WITH SEC. 11(B)(1).  BY THE TERMS OF
SEC. 3(A)(1), IF A HOLDING COMPANY AND ALL OF ITS SUBSIDIARIES ARE
PREDOMINANTLY INTRASTATE IN CHARACTER AND CARRY ON THEIR BUSINESS
SUBSTANTIALLY IN A SINGLE STATE IN WHICH SUCH HOLDING COMPANY AND EVERY
SUBSIDIARY THEREOF ARE ORGANIZED, THE COMMISSION MAY GRANT AN EXEMPTION
FROM ANY PROVISION OF THE ACT "UNLESS AND EXCEPT INSOFAR AS IT FINDS
THE EXEMPTION DETRIMENTAL TO THE PUBLIC INTEREST OR THE INTEREST OF
INVESTORS OR CONSUMERS ..." 

THE POWER OF THE COMMISSION UNDER THE "UNLESS AND EXCEPT" CLAUSE OF
SEC. 3(A) TO DENY AN EXEMPTION TO A PREDOMINANTLY LOCAL HOLDING COMPANY
DOES NOT MEAN, AS NORTH AMERICAN URGES, THAT A HOLDING COMPANY HAVING
NO RELATION WHATEVER TO INTERSTATE COMMERCE MAY BE SUBJECTED TO SEC.
11(B)(1) OR TO ANY OTHER PROVISION OF THE ACT.  THE COMMISSION, IN
DENYING AN EXEMPTION UNDER THIS CLAUSE, IS BOUND BY THE POLICY SET
FORTH IN SEC. 1(C) TO ACT SO AS TO ELIMINATE EVILS CONNECTED WITH
HOLDING COMPANIES "ENGAGED IN INTERSTATE COMMERCE OR IN ACTIVITIES
WHICH DIRECTLY AFFECT OR BURDEN INTERSTATE COMMERCE  ..."  A HOLDING
COMPANY PREDOMINANTLY LOCAL IN CHARACTER MAY NEVERTHELESS ENGAGE IN
ACTIVITIES AFFECTING OR BURDENING INTERSTATE COMMERCE TO THE DETRIMENT
OF THE PUBLIC INTEREST OR THE INTERESTS OF INVESTORS AND CONSUMERS. 
ONLY IN SUCH A CASE COULD THE COMMISSION PROPERLY DENY AN EXEMPTION
UNDER THE "UNLESS AND EXCEPT" CLAUSE.  FN9 THIS PROBLEM, HOWEVER, IS
ACADEMIC SO FAR AS NORTH AMERICAN IS CONCERNED.  LIKE MOST PUBLIC
UTILITY HOLDING COMPANIES, NORTH AMERICAN IS ENGAGED IN INTERSTATE
COMMERCE DIRECTLY AND THROUGH ITS SUBSIDIARIES.  IT CAN LAY NO CLAIM TO
A PREDOMINANTLY INTRASTATE CHARACTER; AS TO IT, SEC. 3(A)(1) IS WHOLLY
INAPPLICABLE.  THE POSSIBILITY THAT THE COMMISSION MIGHT ERRONEOUSLY
FAIL TO EXEMPT SOME TRULY LOCAL HOLDING COMPANY FROM THE PROVISIONS OF
SEC. 11(B)(1) CANNOT NEGATIVE THE PLAIN FACT THAT SEC. 11(B)(1) WAS
DESIGNED TO APPLY AND DOES APPLY TO HOLDING COMPANIES ENGAGED IN
INTERSTATE COMMERCE.  NORTH AMERICAN IS THEREFORE SUBJECT TO ITS
TERMS. 

THE CRUCIAL CONSTITUTIONAL ISSUE, SO FAR AS THE COMMERCE CLAUSE IS
CONCERNED, RESOLVES ITSELF INTO THE QUERY WHETHER CONGRESS MAY VALIDLY
REQUIRE HOLDING COMPANIES ENGAGED IN INTERSTATE COMMERCE TO DISPOSE OF
THEIR SECURITY HOLDINGS AND TO CONFINE THEIR ACTIVITIES IN ACCORDANCE
WITH THE STANDARDS OF SEC. 11(B)(1).  IN URGING THE NEGATIVE ANSWER TO
THIS QUERY, NORTH AMERICAN RELIES UPON THE SETTLED DOCTRINE THAT THE
FEDERAL COMMERCE POWER EXTENDS TO INTRASTATE ACTIVITIES ONLY WHERE
THOSE ACTIVITIES "SO AFFECT INTERSTATE COMMERCE, OR THE EXERTION OF THE
POWER OF CONGRESS OVER IT, AS TO MAKE REGULATION OF THEM APPROPRIATE
MEANS TO THE ATTAINMENT OF A LEGITIMATE END, THE EFFECTIVE EXECUTION OF
THE GRANTED POWER TO REGULATE INTERSTATE COMMERCE."  UNITED STATES V.
WRIGHTWOOD DAIRY CO., 315 U.S. 110, 119.  SEE ALSO SANTA CRUZ FRUIT
PACKING CO. V. LABOR BOARD, 303 U.S. 453, 466; UNITED STATES V. DARBY,
312 U.S. 100, 118-123; WICKARD V. FILBURN, 317 U.S. 111, 122-124.  IT
IS SAID THAT THE OWNERSHIP BY NORTH AMERICAN OF SECURITIES OF OTHER
SYSTEM COMPANIES IS NOT IN ITSELF COMMERCE, INTERSTATE OR INTRASTATE,
AND THAT THE RIGHT TO OWN OR RETAIN PROPERTY IS CHARACTERISTICALLY
GOVERNED BY STATE LAWS, THE FEDERAL GOVERNMENT HAVING NO CONCERN WITH
SUCH MATTERS EXCEPT AS AN INCIDENT TO THE DUE EXERCISE OF ONE OF ITS
GRANTED POWERS.  NORTH AMERICAN DENIES THAT THE NECESSARY RELATIONSHIP
BETWEEN THE OWNERSHIP OF SECURITIES AND INTERSTATE COMMERCE IS SELF
EVIDENT OR THAT IT HAS BEEN FOUND AS A FACT BY CONGRESS, THE COMMISSION
OR ANY COURT.  THE ABSENCE OF THIS RELATIONSHIP, IT IS CONCLUDED,
CAUSES SEC. 11(B)(1) TO FALL. 

THIS ARGUMENT, HOWEVER, MISCONCEIVES NOT ONLY THE POWER OF CONGRESS
OVER INTERSTATE COMMERCE BUT ALSO THE BASIC NATURE OF PUBLIC UTILITY
HOLDING COMPANIES AND THE EFFECT THAT STOCK OWNERSHIP HAS UPON THEIR
ACTIVITIES.  THE DOMINANT CHARACTERISTIC OF A HOLDING COMPANY IS THE
OWNERSHIP OF SECURITIES BY WHICH IT IS POSSIBLE TO CONTROL OR
SUBSTANTIALLY TO INFLUENCE THE POLICIES AND MANAGEMENT OF ONE OR MORE
OPERATING COMPANIES IN A PARTICULAR FIELD OF ENTERPRISE.  FN10  TO BE
SURE, OTHER DEVICES MAY BE UTILIZED TO EFFECTUATE CONTROL, SUCH AS
VOTING TRUSTS, INTERLOCKING DIRECTORS AND OFFICERS, THE CONTROL OF
PROXIES, MANAGEMENT CONTRACTS AND THE LIKE.  BUT THE CONCENTRATED
OWNERSHIP OF VOTING SECURITIES IS THE PRIME METHOD OF ACHIEVING
CONTROL, CONSTITUTING A MORE FUNDAMENTAL PART OF HOLDING COMPANIES THAN
OF OTHER TYPES OF BUSINESS.  PUBLIC UTILITY HOLDING COMPANIES ARE
THEREBY ABLE TO BUILD THEIR GAS AND ELECTRIC UTILITY SYSTEMS, OFTEN
GERRYMANDERED IN SUCH WAYS AS TO BEAR NO RELATION TO ECONOMY OF
OPERATION OR TO EFFECTIVE REGULATION.  THE CONTROL ARISING FROM THIS
OWNERSHIP OF SECURITIES ALSO ALLOWS SUCH HOLDING COMPANIES TO EXACT
UNREASONABLE FEES, COMMISSIONS AND OTHER CHARGES FROM THEIR
SUBSIDIARIES, TO MAKE UNDUE PROFITS FROM THE HANDLING OF THE ISSUE,
SALE AND EXCHANGE OF SECURITIES FOR THEIR SUBSIDIARIES, TO ISSUE
UNSOUND SECURITIES OF THEIR OWN BASED UPON THE INFLATED VALUE OF THE
SUBSIDIARIES, AND TO AFFECT ADVERSELY THE ACCOUNTING PRACTICES AND THE
RATE AND DIVIDEND POLICIES OF THE SUBSIDIARIES.  SEE SEC. 1(B).  FN11
CONGRESS HAS FOUND THAT ALL OF THESE VARIOUS ABUSES AND EVILS OCCUR AND
ARE SPREAD AND PERPETUATED THROUGH THE MAILS AND THE CHANNELS OF
INTERSTATE COMMERCE.  AND CONGRESS HAS FURTHER FOUND THAT SUCH
INTERSTATE ACTIVITIES, WHICH GROW OUT OF THE OWNERSHIP OF SECURITIES OF
OPERATING COMPANIES, HAVE CAUSED PUBLIC UTILITY HOLDING COMPANIES TO BE
"AFFECTED WITH A NATIONAL PUBLIC INTEREST."  SEC. 1(A).  FN12 

THE OWNERSHIP OF SECURITIES OF OPERATING COMPANIES, THEN, HAS A REAL
AND INTIMATE RELATION TO THE INTERSTATE ACTIVITIES OF HOLDING COMPANIES
AND CANNOT BE EFFECTIVELY DIVORCED THEREFROM.  THAT OWNERSHIP IS THE
GENERATING FORCE OF THE CONSTANT INTERSTATE FLOW OF REPORTS, LETTERS,
EQUIPMENT, SECURITIES, ACCOUNTS, INSTRUCTIONS AND MONEY - ALL OF WHICH
CONSTITUTE THE LIFE BLOOD OF HOLDING COMPANIES AND ALLOW THE NUMEROUS
ABUSES TO BE EFFECTUATED.  IT ALSO MAKES THE INTERSTATE TRANSMISSION OF
GAS AND ELECTRICITY BY THE SUBSIDIARIES, AS WELL AS THEIR OTHER
INTERSTATE ACTIONS, REFLECT UPON AND MAGNIFY THE INTERSTATE CHARACTER
OF THE HOLDING COMPANIES.  WITHOUT THE FACTOR OF STOCK OWNERSHIP THE
VERY FOUNDATION AND FRAMEWORK OF HOLDING COMPANY SYSTEMS WOULD BE GONE
AND THE AMOUNT OF THEIR INTERSTATE ACTIVITY WOULD BE AT A MINIMUM;
CENTRALIZED MANAGEMENT AND CONTROL OF WIDELY SCATTERED UTILITY
PROPERTIES WOULD BE DIFFICULT IF NOT IMPOSSIBLE. 

WE MAY ASSUME WITHOUT DECIDING THAT THE OWNERSHIP OF SECURITIES,
CONSIDERED SEPARATELY AND ABSTRACTLY, IS NOT COMMERCE.  BUT WHEN IT IS
CONSIDERED IN THE CONTEXT OF PUBLIC UTILITY HOLDING COMPANIES AND THEIR
SUBSIDIARIES, ITS RELATIONSHIP TO INTERSTATE COMMERCE IS SO CLEAR AND
DEFINITE AS TO MAKE ANY OTHER CONCLUSION UNREASONABLE.  AND CONGRESS
HAS PLAINLY RECOGNIZED THAT RELATIONSHIP IN ITS DECLARATIONS OF POLICY
IN SEC. 1(A), IN ITS ENUMERATION OF ABUSES IN SEC. 1(B) AND IN ITS
DESCRIPTION OF INTERSTATE ACTIVITIES OF HOLDING COMPANIES IN SEC.
4(A).  SUCH STATEMENTS WOULD BE UTTERLY MEANINGLESS IN THE LIGHT OF
REALITY WERE THEY NOT PREMISED UPON THE OWNERSHIP OF SECURITIES BY
HOLDING COMPANIES AND THE USE OF THAT OWNERSHIP TO BURDEN AND AFFECT
THE CHANNELS OF INTERSTATE COMMERCE. 

OWNERSHIP OF SECURITIES.  IN SEC. 1(B)(4) CONGRESS SPECIFICALLY FOUND
THAT THE NATIONAL PUBLIC INTEREST, THE INTEREST OF UTILITY INVESTORS
AND THE INTEREST OF UTILITY CONSUMERS ARE OR MAY BE ADVERSELY AFFECTED
"WHEN THE GROWTH AND EXTENSION OF HOLDING COMPANIES BEARS NO RELATION
TO ECONOMY OF MANAGEMENT AND OPERATION OR THE INTEGRATION AND
COORDINATION OF RELATED OPERATING PROPERTIES  ..."  FN13  THE "GROWTH
AND EXTENSION OF HOLDING COMPANIES" OBVIOUSLY REST UPON THEIR SECURITY
HOLDINGS.  CONGRESS EXPRESSED IN SEC. 1(C) ITS DETERMINATION "TO COMPEL
THE SIMPLIFICATION OF PUBLIC-UTILITY HOLDING-COMPANY SYSTEMS AND THE
ELIMINATION THEREFROM OF PROPERTIES DETRIMENTAL TO THE PROPER
FUNCTIONING OF SUCH SYSTEMS," THUS ELIMINATING THE EVIL COMPLAINED OF
IN SEC. 1(B)(4) AND AMELIORATING THE CONDITIONS SPECIFIED IN THE OTHER
SUBSECTIONS OF SEC. 1(B).  IT ACCORDINGLY ADOPTED SEC. 11(B)(1),
WHEREBY HOLDING COMPANIES ARE COMPELLED TO INTEGRATE AND COORDINATE
THEIR SYSTEMS AND TO DIVEST THEMSELVES OF SECURITY HOLDINGS OF
GEOGRAPHICALLY AND ECONOMICALLY UNRELATED PROPERTIES.  IN THIS WAY
CONGRESS HOPED TO REJUVENATE LOCAL UTILITY MANAGEMENT AND TO RESTORE
EFFECTIVE STATE REGULATION, BOTH OF WHICH HAD BEEN SERIOUSLY IMPAIRED
BY THE EXISTENCE AND PRACTICES OF NATION-WIDE HOLDING COMPANY SYSTEMS. 
FN14 

THE CONSTITUTIONALITY OF SEC. 11(B)(1) UNDER THE COMMERCE CLAUSE THUS
BECOMES APPARENT.  FOR NEARLY ONE HUNDRED AND TWENTY-FIVE YEARS, THIS
COURT HAS RECOGNIZED THAT THE POWER OF CONGRESS OVER INTERSTATE
COMMERCE IS "THE POWER TO REGULATE; THAT IS, TO PRESCRIBE THE RULE BY
WHICH COMMERCE IS TO BE GOVERNED.  THIS POWER, LIKE ALL OTHERS VESTED
IN CONGRESS, IS COMPLETE IN ITSELF, MAY BE EXERCISED TO ITS UTMOST
EXTENT, AND ACKNOWLEDGES NO LIMITATIONS, OTHER THAN ARE PRESCRIBED IN
THE CONSTITUTION."  GIBBONS V. OGDEN, SUPRA, 196.  THIS IS NOT TO SAY,
OF COURSE, THAT CONGRESS IS AN ABSOLUTE SOVEREIGN.  IT IS LIMITED BY
EXPRESS PROVISIONS IN OTHER PARTS OF THE CONSTITUTION, SUCH AS SEC. 9
OF ARTICLE I AND THE BILL OF RIGHTS.  BUT SO FAR AS THE COMMERCE CLAUSE
ALONE IS CONCERNED CONGRESS HAS PLENARY POWER, A POWER WHICH "EXTENDS
TO EVERY PART OF INTERSTATE COMMERCE, AND TO EVERY INSTRUMENTALITY OR
AGENCY BY WHICH IT IS CARRIED ON; AND THE FULL CONTROL BY CONGRESS OF
THE SUBJECTS COMMITTED TO ITS REGULATION IS NOT TO BE DENIED OR
THWARTED BY THE COMMINGLING OF INTERSTATE AND INTRASTATE OPERATIONS." 
MINNESOTA RATE CASES, SUPRA, 399. 

THIS BROAD COMMERCE CLAUSE DOES NOT OPERATE SO AS TO RENDER THE
NATION POWERLESS TO DEFEND ITSELF AGAINST ECONOMIC FORCES THAT CONGRESS
DECREES INIMICAL OR DESTRUCTIVE OF THE NATIONAL ECONOMY.  RATHER IT IS
AN AFFIRMATIVE POWER COMMENSURATE WITH THE NATIONAL NEEDS.  IT IS
UNRESTRICTED BY CONTRARY STATE LAWS OR PRIVATE CONTRACTS.  AND IN USING
THIS GREAT POWER, CONGRESS IS NOT BOUND BY TECHNICAL LEGAL
CONCEPTIONS.  COMMERCE ITSELF IS AN INTENSELY PRACTICAL MATTER.  SWIFT
& CO. V. UNITED STATES, 196 U.S. 375, 398.  TO DEAL WITH IT
EFFECTIVELY, CONGRESS MUST BE ABLE TO ACT IN TERMS OF ECONOMIC AND
FINANCIAL REALITIES.  THE COMMERCE CLAUSE GIVES IT AUTHORITY SO TO
ACT. 

WE NEED NOT ATTEMPT HERE TO DRAW THE OUTER LIMITS OF THIS PLENARY
POWER.  IT IS SUFFICIENT TO REITERATE THE WELL-SETTLED PRINCIPLE THAT
CONGRESS MAY IMPOSE RELEVANT CONDITIONS AND REQUIREMENTS ON THOSE WHO
USE THE CHANNELS OF INTERSTATE COMMERCE IN ORDER THAT THOSE CHANNELS
WILL NOT BECOME THE MEANS OF PROMOTING OR SPREADING EVIL, WHETHER OF A
PHYSICAL, MORAL OR ECONOMIC NATURE.  BROOKS V. UNITED STATES, 267 U.S.
432, 436-437.  THIS POWER PERMITS CONGRESS TO ATTACK AN EVIL DIRECTLY
AT ITS SOURCE, PROVIDED THAT THE EVIL BEARS A SUBSTANTIAL RELATIONSHIP
TO INTERSTATE COMMERCE.  CONGRESS THUS HAS POWER TO MAKE DIRECT ASSAULT
UPON SUCH ECONOMIC EVILS AS THOSE RELATING TO LABOR RELATIONS, LABOR
BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1; POLISH ALLIANCE V. LABOR
BOARD, 322 U.S. 643; TO WAGES AND HOURS, UNITED STATES V. DARBY, SUPRA;
TO MARKET TRANSACTIONS, STAFFORD V. WALLACE, 258 U.S. 495; CHICAGO
BOARD OF TRADE V. OLSEN, 262 U.S. 1; AND TO MONOPOLISTIC PRACTICES,
NORTHERN SECURITIES CO. V. UNITED STATES, SUPRA.  THE FACT THAT AN EVIL
MAY INVOLVE A CORPORATION'S FINANCIAL PRACTICES, ITS BUSINESS STRUCTURE
OR ITS SECURITY PORTFOLIO DOES NOT DETRACT FROM THE POWER OF CONGRESS
UNDER THE COMMERCE CLAUSE TO PROMULGATE RULES IN ORDER TO DESTROY THAT
EVIL.  ONCE IT IS ESTABLISHED THAT THE EVIL CONCERNS OR AFFECTS
COMMERCE IN MORE STATES THAN ONE, CONGRESS MAY ACT.  "THE FRAMERS OF
THE CONSTITUTION NEVER INTENDED THAT THE LEGISLATIVE POWER OF THE
NATION SHOULD FIND ITSELF INCAPABLE OF DISPOSING OF A SUBJECT MATTER
SPECIFICALLY COMMITTED TO ITS CHARGE."  IN RE RAHRER, 140 U.S. 545,
562. 

CONGRESS IN SEC. 11(B)(1) OF THE PUBLIC UTILITY HOLDING COMPANY ACT
WAS CONCERNED WITH THE ECONOMIC EVILS RESULTING FROM UNCOORDINATED AND
UNINTEGRATED PUBLIC UTILITY HOLDING COMPANY SYSTEMS.  THESE EVILS WERE
FOUND TO BE POLLUTING THE CHANNELS OF INTERSTATE COMMERCE AND TO TAKE
THE FORM OF TRANSACTIONS OCCURRING IN AND CONCERNING MORE STATES THAN
ONE.  CONGRESS ALSO FOUND THAT THE NATIONAL WELFARE WAS THEREBY HARMED,
AS WELL AS THE INTERESTS OF INVESTORS AND CONSUMERS.  THESE EVILS,
MOREOVER, WERE TRACEABLE IN LARGE PART TO THE NATURE AND EXTENT OF THE
SECURITIES OWNED BY THE HOLDING COMPANIES.  CONGRESS THEREFORE HAD
POWER UNDER THE COMMERCE CLAUSE TO ATTEMPT TO REMOVE THOSE EVILS BY
ORDERING THE HOLDING COMPANIES TO DIVEST THEMSELVES OF THE SECURITIES
THAT MADE SUCH EVILS POSSIBLE. 

IT FOLLOWS THAT NORTH AMERICAN'S CONTENTION THAT THE OWNERSHIP OF
SECURITIES IS NOT IN ITSELF INTERSTATE COMMERCE AND HENCE MAY NOT BE
MADE THE BASIS OF FEDERAL LEGISLATION MISCONCEIVES THE ISSUE IN THIS
CASE.  PRECISELY THE SAME MISCONCEPTION WAS MADE MORE THAN FORTY YEARS
AGO BY THE APPELLANTS IN NORTHERN SECURITIES CO. V. UNITED STATES,
SUPRA, 334-335, AND WAS REJECTED BY THIS COURT.  INASMUCH AS CONGRESS
MAY PROTECT THE FREEDOM OF INTERSTATE COMMERCE BY ANY MEANS THAT ARE
APPROPRIATE AND THAT ARE LAWFUL AND NOT PROHIBITED BY THE CONSTITUTION,
THIS COURT IN THE NORTHERN SECURITIES CO. CASE RECOGNIZED THAT CONGRESS
MAY DEAL WITH AND AFFECT THE OWNERSHIP OF SECURITIES IN ORDER TO
PROTECT THE FREEDOM OF COMMERCE.  CONGRESS LIKEWISE HAS THE POWER IN
THIS CASE. 

IN FASHIONING THE REMEDY DECREED BY SEC. 11(B)(1), CONGRESS WAS
FOLLOWING A PATTERN SET MANY YEARS AGO BY DECISIONS APPLYING THE
SHERMAN ANTITRUST ACT, NORTHERN SECURITIES CO. V. UNITED STATES, SUPRA;
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; CONTINENTAL INS. CO. V.
UNITED STATES, 259 U.S. 156, AND THE COMMODITIES CLAUSE OF THE HEPBURN
ACT, UNITED STATES V. LEHIGH VALLEY R. CO., 220 U.S. 257; UNITED STATES
V. DELAWARE, L. & W.R. CO., 238 U.S. 516.  IN SO AFFECTING THE
CORPORATE STRUCTURE OF HOLDING COMPANIES, IT WAS EXERCISING ITS POWER
"TO FOSTER, PROTECT AND CONTROL THE COMMERCE WITH APPROPRIATE REGARD TO
THE WELFARE OF THOSE WHO ARE IMMEDIATELY CONCERNED, AS WELL AS THE
PUBLIC AT LARGE, AND TO PROMOTE ITS GROWTH AND INSURE ITS SAFETY." 
DAYTON-GOOSE CREEK R. CO. V. UNITED STATES, 263 U.S. 456, 478.  IT IS
CLEAR, THEREFORE, THAT SEC. 11(B)(1) IS INVULNERABLE TO ATTACK UNDER
THE COMMERCE CLAUSE. 

THE CONSTITUTIONALITY OF SEC. 11(B)(1) IS ALSO QUESTIONED FROM THE
STANDPOINT OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  NORTH
AMERICAN ARGUES THAT THIS SECTION, BY COMPELLING IT TO DIVEST ITSELF OF
ITS SCATTERED SUBSIDIARIES AND TO CONFINE ITS OPERATIONS TO A SINGLE
INTEGRATED SYSTEM, INVOLVES A TAKING OF PROPERTY WITHOUT JUST
COMPENSATION.  IT IS ALSO CLAIMED THAT SUCH EVILS AS WERE FOUND TO
EXIST IN PUBLIC UTILITY HOLDING COMPANIES FIND AN ADEQUATE REMEDY IN
OTHER SECTIONS OF THE ACT AND THAT SEC. 11(B)(1) IS THEREFORE
INAPPROPRIATE.  NEITHER CONTENTION IS MERITORIOUS.  FN15 

THE TAKING OF PROPERTY IS SAID TO INVOLVE "A VAST DESTRUCTION OF
VALUES."  REFERENCE IS MADE IN THIS RESPECT TO THE VALUABLE RIGHT OF
NORTH AMERICAN'S SHAREHOLDERS TO POOL THEIR INVESTMENTS AND THEREBY
OBTAIN THE BENEFIT ALLEGED TO FLOW FROM EFFICIENT, COMMON MANAGEMENT OF
DIVERSIFIED INTERESTS.  BUT CONGRESS BALANCED THE VARIOUS
CONSIDERATIONS AND CONCLUDED THAT THIS RIGHT IS CLEARLY OUTWEIGHED BY
THE ACTUAL AND POTENTIAL DAMAGE TO THE PUBLIC, THE INVESTORS AND THE
CONSUMERS RESULTING FROM THE USE MADE OF POOLED INVESTMENTS.  UNDER
SUCH CIRCUMSTANCES, WHATEVER VALUE THIS RIGHT MAY HAVE DOES NOT
FORECLOSE THE PROTECTION OF THE VARIOUS INTERESTS WHICH CONGRESS FOUND
TO BE PARAMOUNT.  SEE NORTHERN SECURITIES CO. V. UNITED STATES, SUPRA.
NOR DOES THE VALUE OF NORTH AMERICAN'S CONTRIBUTIONS AS A HOLDING
COMPANY TO THE EARNING POWER AND INTRINSIC VALUE OF THE ASSETS DIVESTED
PURSUANT TO SEC. 11(B)(1) BAR CONGRESS FROM REQUIRING SUCH DIVESTMENT. 
CONGRESS HAS CONCLUDED FROM THE EXTENSIVE STUDIES MADE PRIOR TO THE
PASSAGE OF THE ACT THAT THE ECONOMIC ADVANTAGES OF A HOLDING COMPANY AT
THE TOP OF AN UNINTEGRATED, SPRAWLING SYSTEM ARE NOT COMMENSURATE WITH
THE RESULTING ECONOMIC DISADVANTAGES.  THE REASONABLENESS OF THAT
CONCLUSION IS ONE FOR CONGRESS TO DETERMINE.  THE FACT THAT VALUABLE
INTERESTS MAY BE AFFECTED DOES NOT, BY ITSELF, RENDER INVALID UNDER THE
DUE PROCESS CLAUSE THE DETERMINATION MADE BY CONGRESS. 

MOREOVER, THERE IS NO BASIS HERE FOR ASSUMING THAT IN LIMITING THE
SCOPE OF NORTH AMERICAN'S OPERATIONS THERE WILL BE DISPOSITIONS OF
SECURITIES FOR INADEQUATE CONSIDERATIONS, THEREBY RAISING A QUESTION AS
TO WHETHER THERE IS A DESTRUCTION OF THESE VALUES WITHOUT JUST
COMPENSATION.  THE ACT DOES NOT CONTEMPLATE OR REQUIRE THE DUMPING OR
FORCED LIQUIDATION OF SECURITIES ON THE MARKET FOR CASH.  FN16  UNDER
SECS. 11(D) AND 11(E) OF THE ACT, ANY DIVESTMENT OR REORGANIZATION PLAN
MUST MEET THE STANDARDS OF FAIRNESS AND EQUITABLENESS.  IN MANY
INSTANCES THIS MAY INVOLVE NO MORE THAN A DISTRIBUTION OF THE
SECURITIES AMONG THE EXISTING SHAREHOLDERS OF THE HOLDING COMPANY. 
FN17  BUT SHOULD SECURITIES BE SOLD FOR CASH, SPECULATION AS TO
UNFAVORABLE MARKET CONDITIONS CANNOT UNDERMINE THE VALIDITY OF SEC.
11(B)(1).  ANY PLAN OF DIVESTMENT OR REORGANIZATION, MOREOVER, MUST BE
CAREFULLY SCRUTINIZED BY BOTH THE COMMISSION AND THE ENFORCING COURT,
THUS ENABLING THE ASSERTION AND PROTECTION OF ALL SHAREHOLDERS'
RIGHTS.  SEE OTIS & CO. V. SECURITIES & EXCHANGE COMMISSION, 323 U.S.
624.  AND THERE ARE PROVISIONS IN THE ACT GUARDING AGAINST UNDULY RAPID
DIVESTMENT OR LIQUIDATION.  FN18  IN THE LIGHT OF SUCH STATUTORY AND
JUDICIAL SAFEGUARDS AND IN THE ABSENCE OF ANY ALLEGED UNFAIR PLAN OF
DIVESTMENT, WE CANNOT SAY THAT NORTH AMERICAN'S SHAREHOLDERS ARE
ADVERSELY AFFECTED, FROM A CONSTITUTIONAL STANDPOINT, BY THE OPERATION
OF SEC. 11(B)(1).  NORTH AMERICAN'S RELIANCE ON SUCH CASES AS
LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555, IS THEREFORE
MISPLACED. 

IT IS TRUE, AS NORTH AMERICAN POINTS OUT, THAT OTHER SECTIONS OF THE
ACT PROVIDE FOR THE REGULATION OF MANY ACTIVITIES OF HOLDING COMPANIES
AND THEIR SUBSIDIARIES, ACTIVITIES THAT WERE FOUND TO GIVE BIRTH TO
MANY OF THE EVILS ABOUT WHICH CONGRESS WAS CONCERNED.  BUT SUCH
CONCERNED WITH THE EXISTING STRUCTURES OF HOLDING COMPANY SYSTEMS. 
THESE STRUCTURES IN AND OF THEMSELVES HAVE BEEN FOUND BY CONGRESS TO
CONSTITUTE AN EVIL THAT CANNOT BE MET BY SIMPLY REGULATING FUTURE
TRANSACTIONS.  CONGRESS, IN THE EXERCISE OF ITS DISCRETION, HAS DECIDED
THAT IT IS NECESSARY TO REORGANIZE THE HOLDING COMPANY STRUCTURES.  AND
INASMUCH AS IT HAS THE CONSTITUTIONAL POWER TO DO SO, WE CANNOT
QUESTION THE APPROPRIATENESS OR PROPRIETY OF ITS DECISION.  SUNSHINE
ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 394. 

FINALLY, NORTH AMERICAN CLAIMS THAT IT HAS ENGAGED IN NONE OF THE
EVILS ENUMERATED IN SEC. 1(B) AND THAT IT SHOULD BE ALLOWED TO PROVE
THAT FACT.  THE CONTENTION APPARENTLY IS THAT SEC. 11(B)(1), AS APPLIED
TO NORTH AMERICAN, IS UNCONSTITUTIONAL SINCE NONE OF THE EVILS THAT LED
CONGRESS TO ENACT THE STATUTE IS PRESENT IN THIS INSTANCE.  BUT IF
EVILS DISCLOSED THEMSELVES WHICH ENTITLED CONGRESS TO LEGISLATE AS IT
DID, CONGRESS HAD POWER TO LEGISLATE GENERALLY, UNLIMITED BY PROOF OF
THE EXISTENCE OF THE EVILS IN EACH PARTICULAR SITUATION.  SECTION
11(B)(1) IS NOT DESIGNED TO PUNISH PAST OFFENDERS BUT TO REMOVE WHAT
CONGRESS CONSIDERED TO BE POTENTIAL IF NOT ACTUAL SOURCES OF EVIL.  AND
NOTHING IN THE CONSTITUTION PREVENTS CONGRESS FROM ACTING IN TIME TO
PREVENT POTENTIAL INJURY TO THE NATIONAL ECONOMY FROM BECOMING A
REALITY. 

THE JUDGMENT OF THE COURT BELOW IS ACCORDINGLY AFFIRMED. 

FN1  NORTH AMERICAN REGISTERED WITH THE COMMISSION ON FEBRUARY 25,
1937, RESERVING ITS RIGHT TO CHALLENGE THE CONSTITUTIONALITY OF SEC.
11(B)(1) AND OTHER PORTIONS OF THE ACT.  SEE LANDIS V. NORTH AMERICAN
CO., 299 U.S. 248, 251-252; ELECTRIC BOND & SHARE CO. V. SECURITIES &
EXCHANGE COMMISSION, 303 U.S. 419, 435. 

FN2  HOLDING COMPANY ACT RELEASES NOS. 3405 AND 3629.  (SEE 11 S.E.C.
194; 11 S.E.C. 715.) 

FN3  FEDERAL TRADE COMMISSION REPORT TO THE SENATE, "UTILITY
CORPORATIONS," SEN. DOC. 92, PART 72-A, 70TH CONG., 1ST SESS., PP. 107
110, 706-716. 

FN4  IN 1929 AND 1930, COMPANIES IN THE NORTH AMERICAN SYSTEM
TRANSMITTED 9.3% AND 7.7%, RESPECTIVELY, OF THE TOTAL AMOUNT OF
ELECTRIC ENERGY TRANSMITTED ACROSS STATE BOUNDARIES IN THE UNITED
STATES.  FEDERAL TRADE COMMISSION REPORT, SUPRA, NOTE 3, P. 43, TABLE
13. 

FN5  AS TO ONLY TWO OF THE SUBSIDIARIES, THE DETROIT EDISON COMPANY
AND THE PACIFIC GAS & ELECTRIC COMPANY, HAS A CLAIM BEEN RAISED THAT
THEY WERE NOT CONTROLLED BY OR SUBJECT TO A CONTROLLING INFLUENCE OF
NORTH AMERICAN.  THE COMMISSION REJECTED BOTH CLAIMS AFTER HEARINGS AND
ITS DETERMINATIONS WERE SUSTAINED UPON APPEAL.  DETROIT EDISON CO. V.
SECURITIES & EXCHANGE COMMISSION, 119 F.2D 730, CERT. DENIED, 314 U.S.
618; PACIFIC GAS & ELECTRIC CO. V. SECURITIES & EXCHANGE COMMISSION,
127 F.2D 378, AFFIRMED ON REHEARING BY EQUALLY DIVIDED COURT, 139 F.2D
298, AFFIRMED BY EQUALLY DIVIDED COURT, 324 U.S. 826. 

FN6  SEE FEDERAL TRADE COMMISSION REPORT, SUPRA, NOTE 3, P. 347. 

FN7  "SEC.  11.  (A)  ... 

"(B)  IT SHALL BE THE DUTY OF THE COMMISSION, AS SOON AS PRACTICABLE
AFTER JANUARY 1, 1938: 

"(1)  TO REQUIRE BY ORDER, AFTER NOTICE AND OPPORTUNITY FOR HEARING,
THAT EACH REGISTERED HOLDING COMPANY, AND EACH SUBSIDIARY COMPANY
THEREOF, SHALL TAKE SUCH ACTION AS THE COMMISSION SHALL FIND NECESSARY
TO LIMIT THE OPERATIONS OF THE HOLDING-COMPANY SYSTEM OF WHICH SUCH
COMPANY IS A PART TO A SINGLE INTEGRATED PUBLIC-UTILITY SYSTEM, AND TO
SUCH OTHER BUSINESSES AS ARE REASONABLY INCIDENTAL, OR ECONOMICALLY
NECESSARY OR APPROPRIATE TO THE OPERATIONS OF SUCH INTEGRATED PUBLIC
UTILITY SYSTEM:  PROVIDED, HOWEVER, THAT THE COMMISSION SHALL PERMIT A
REGISTERED HOLDING COMPANY TO CONTINUE TO CONTROL ONE OR MORE
ADDITIONAL INTEGRATED PUBLIC-UTILITY SYSTEMS, IF, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, IT FINDS THAT - 

"(A)  EACH OF SUCH ADDITIONAL SYSTEMS CANNOT BE OPERATED AS AN
INDEPENDENT SYSTEM WITHOUT THE LOSS OF SUBSTANTIAL ECONOMIES WHICH CAN
BE SECURED BY THE RETENTION OF CONTROL BY SUCH HOLDING COMPANY OF SUCH
SYSTEM; 

"(B)  ALL OF SUCH ADDITIONAL SYSTEMS ARE LOCATED IN ONE STATE, OR IN
ADJOINING STATES, OR IN A CONTIGUOUS FOREIGN COUNTRY; AND 

"(C)  THE CONTINUED COMBINATION OF SUCH SYSTEMS UNDER THE CONTROL OF
SUCH HOLDING COMPANY IS NOT SO LARGE (CONSIDERING THE STATE OF THE ART
AND THE AREA OR REGION AFFECTED) AS TO IMPAIR THE ADVANTAGES OF
LOCALIZED MANAGEMENT, EFFICIENT OPERATION, OR THE EFFECTIVENESS OF
REGULATION. 

THE COMMISSION MAY PERMIT AS REASONABLY INCIDENTAL, OR ECONOMICALLY
NECESSARY OR APPROPRIATE TO THE OPERATIONS OF ONE OR MORE INTEGRATED
PUBLIC-UTILITY SYSTEMS THE RETENTION OF AN INTEREST IN ANY BUSINESS
(OTHER THAN THE BUSINESS OF A PUBLIC-UTILITY COMPANY AS SUCH) WHICH THE
COMMISSION SHALL FIND NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST
OR FOR THE PROTECTION OF INVESTORS OR CONSUMERS AND NOT DETRIMENTAL TO
THE PROPER FUNCTIONING OF SUCH SYSTEM OR SYSTEMS." 

FN8  SECTION 4(B) COMPELS HOLDING COMPANIES TO REGISTER IF THEY HAVE
OUTSTANDING ANY SECURITY WHICH HAS BEEN DISTRIBUTED BY THE USE OF THE
MAILS OR COMMERCE, OR OFFERED FOR SALE BY LIKE MEANS, SUBSEQUENT TO
JANUARY 1, 1925, AND IF THAT SECURITY IS HELD ON OCTOBER 1, 1935, BY
ANY PERSON NOT A RESIDENT OF THE STATE IN WHICH THE HOLDING COMPANY IS
ORGANIZED.  WE NEED NOT HERE CONSIDER THE FORCE OF THIS SECTION,
HOWEVER, SINCE NORTH AMERICAN AND OTHER INTERSTATE HOLDING COMPANIES
ARE FORCED TO REGISTER BY REASON OF THE PROVISIONS OF SEC. 4(A). 

FN9  THE COMMISSION HAS RECOGNIZED THE FACT THAT THE DECLARATION OF
POLICY IN SEC. 1(C) MUST BE CONSIDERED IN GRANTING OR DENYING
EXEMPTIONS UNDER SEC. 3(A) TO PREDOMINANTLY INTRASTATE HOLDING
COMPANIES.  SEE IN RE NIAGARA HUDSON POWER CORPORATION, HOLDING COMPANY
ACT RELEASE NO. 5115; IN RE LONG ISLAND LIGHTING COMPANY, HOLDING
COMPANY ACT RELEASE NO. 5746. 

FN10  BONBRIGHT AND MEANS, THE HOLDING COMPANY (1932), P. 10; JONES
AND BIGHAM, PRINCIPLES OF PUBLIC UTILITIES (1931), P. 589; HEARINGS
BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 74TH CONG.,
1ST SESS., ON H.R. 5423, PART 1, PP. 76-77. 

FN11  THE CONGRESSIONAL FINDINGS AS TO ABUSES LISTED IN SEC. 1(B)
WERE BASED UPON SOME OF THE MOST EXHAUSTIVE AND COMPREHENSIVE STUDIES
EVER TO UNDERLIE A FEDERAL STATUTE.  CONGRESS SPECIFICALLY REFERRED IN
SEC. 1(B) TO THE STUDIES MADE BY THE FEDERAL TRADE COMMISSION PURSUANT
TO S. RES. 83, 70TH CONG., 1ST SESS., THE REPORTS OF THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE MADE PURSUANT TO H. RES.
59, 72ND CONG., 1ST SESS., AND H.J. RES. 572, 72ND CONG., 2D SESS.  A
SUMMARY OF THE MANIFOLD AND COMPLEX ABUSES REVEALED BY THESE STUDIES IS
CONTAINED IN THE FEDERAL TRADE COMMISSION REPORT, SUPRA, NOTE 3.  SEE
BARNES, THE ECONOMICS OF PUBLIC UTILITY REGULATION (1942), P. 71. 
FN12  THE FACT THAT SEC. 1(A) REFERS TO CERTAIN ACTIVITIES OF HOLDING
COMPANIES AS "OFTEN" OCCURRING IN OR AFFECTING INTERSTATE COMMERCE AND
THAT SEC. 1(B) REFERS TO ADVERSE EFFECTS "WHEN" CERTAIN ABUSES AND
EVILS OCCUR IS BUT AN INSTANCE OF CAREFUL DRAFTSMANSHIP.  CONTRARY TO
NORTH AMERICAN'S CONTENTIONS, THE USE OF THE WORDS "OFTEN" AND "WHEN"
DOES NOT IMPLY THAT CONGRESS FELT THAT THE RELATIONSHIPS OF SOME
HOLDING COMPANIES TO COMMERCE WERE NEGLIGIBLE OR THAT THE ABUSES WERE
OTHER THAN GENERAL IN NATURE.  THOSE WORDS MERELY RECOGNIZE THAT
INTERSTATE ACTIVITIES ARE NOT NECESSARILY CONSTANT AND THAT THE ABUSES
MAY ARISE FROM TIME TO TIME.  THAT IS ENOUGH, HOWEVER, TO SUPPORT
LEGISLATIVE ACTION.  SEE CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1,
40. 

FN13  "THE GROWTH OF THE HOLDING-COMPANY SYSTEMS HAS FREQUENTLY BEEN
PRIMARILY DICTATED BY PROMOTERS' DREAMS OF FAR-FLUNG POWER AND BANKERS'
SCHEMES FOR SECURITY PROFITS, AND HAS OFTEN BEEN ATTAINED WITH THE
GREAT WASTE AND DISREGARD OF PUBLIC BENEFIT WHICH MIGHT BE EXPECTED
FROM SUCH MOTIVES.  WHOLE STRINGS OF COMPANIES WITH NO PARTICULAR
RELATION TO, AND OFTEN ESSENTIALLY UNCONNECTED WITH, UNITS IN AN
EXISTING SYSTEM HAVE BEEN ABSORBED FROM TIME TO TIME.  THE PRICES PAID
FOR ADDITIONAL UNITS NOT ONLY HAVE BEEN BASED UPON INFLATED VALUES BUT
FREQUENTLY HAVE BEEN RUN UP OUT OF REASON BY THE RIVALRY OF CONTENDING
SYSTEMS.  BECAUSE THIS GROWTH HAS BEEN ACTUATED PRIMARILY BY A DESIRE
FOR SIZE AND THE POWER INHERENT IN SIZE, THE CONTROLLING GROUPS HAVE IN
MANY INSTANCES DONE NO MORE THAN PAY LIP SERVICE TO THE PRINCIPLE OF
BUILDING UP A SYSTEM AS AN INTEGRATED AND ECONOMIC WHOLE, WHICH MIGHT
BRING ACTUAL BENEFITS TO ITS COMPONENT PARTS FROM RELATED OPERATIONS
AND UNIFIED MANAGEMENT.  INSTEAD, THEY HAVE TOO FREQUENTLY GIVEN US
MASSIVE, OVERCAPITALIZED ORGANIZATIONS OF EVER INCREASING COMPLEXITY
AND STEADILY DIMINISHING COORDINATION AND EFFICIENCY."  REPORT OF THE
NATIONAL POWER POLICY COMMITTEE ON PUBLIC-UTILITY HOLDING COMPANIES, H.
DOC. 137, 74TH CONG., 1ST SESS., P. 5. 

FN14  "AS HAS BEEN POINTED OUT ABOVE, THE PURPOSE OF SECTION 11 IS
SIMPLY TO PROVIDE A MECHANISM TO CREATE CONDITIONS UNDER WHICH
EFFECTIVE FEDERAL AND STATE REGULATION WILL BE POSSIBLE.  IT IS
THEREFORE THE VERY HEART OF THE TITLE, THE SECTION MOST ESSENTIAL TO
THE ACCOMPLISHMENT OF THE PURPOSES SET FORTH IN THE PRESIDENT'S
MESSAGE."  S. REP. 621, 74TH CONG., 1ST SESS., P. 11. 

FN15  THE CONTENTION ALSO IS MADE THAT THE FACT THAT SEC. 11(B)(1)
REQUIRES DISPOSITION OF SECURITY HOLDINGS AND THE TERMINATION OF
RELATIONSHIPS WHICH ANTEDATE THE PASSAGE OF THE ACT IS FATAL TO ITS
VALIDITY.  BUT IT MERELY REQUIRES THAT SUCH HOLDINGS AND RELATIONSHIPS
SHALL NOT CONTINUE IN THE FUTURE.  THERE IS NO PUNISHMENT FOR PAST
EVENTS.  CERTAINLY THERE IS NO CONSTITUTIONAL REQUIREMENT THAT THE
STATUS QUO BE MAINTAINED.  SEE UNITED STATES V. TRANS-MISSOURI FREIGHT
ASSN., 166 U.S. 290, 342. 

FN16  "AS HAS BEEN EXPLAINED ABOVE, THE TITLE DOES NOT REQUIRE THE
DUMPING OR FORCED LIQUIDATION OF SECURITIES.  SUCH DISPOSITION AS MAY
BE NECESSARY CAN BE ACCOMPLISHED BY REORGANIZATION WHICH WILL EQUITABLY
REDISTRIBUTE SECURITIES AMONG EXISTING SECURITY HOLDERS.  INSOFAR AS
THERE MAY BE SOME REDISTRIBUTION OF THE SECURITIES OF OPERATING
COMPANIES THROUGH INVESTMENT BANKING CHANNELS, THIS WILL NOT RESULT IN
A SUBSTANTIAL NET INCREASE IN THE SUPPLY OF UTILITY SECURITIES ON THE
MARKET BECAUSE FOR EVERY BLOCK OF OPERATING SECURITIES DISTRIBUTED
THERE WILL BE A CORRESPONDING BLOCK OF HOLDING-COMPANY SECURITIES
RETIRED.  THE NET EFFECT OF SUCH CHANGES WILL BE TO STRENGTHEN THE
MARKET FOR UTILITY SECURITIES GENERALLY BY REPLACING HOLDING-COMPANY
SECURITIES WITH SOUND OPERATING-COMPANY SECURITIES.  SUCH OPERATIONS,
PRIMARILY OF A REFUNDING NATURE, SHOULD STRENGTHEN RATHER THAN WEAKEN
THE CREDIT OF OPERATING COMPANIES."  S. REP. 621, 74TH CONG., 1ST
SESS., P. 16. 

FN17  NORTH AMERICAN HAS ALREADY DISPOSED OF ITS HOLDINGS OF DETROIT
EDISON COMPANY COMMON STOCK UNDER A PLAN DISTRIBUTING THE STOCK TO
NORTH AMERICAN'S STOCKHOLDERS OVER A PERIOD OF TIME.  IN RE THE NORTH
AMERICAN COMPANY, HOLDING COMPANY ACT RELEASE NO. 4056. 

FN18  UNDER SEC. 11(C), HOLDING COMPANIES ARE GIVEN AT LEAST A YEAR
TO COMPLY WITH AN ORDER OF THE COMMISSION UNDER SEC. 11(B).  THE
COMMISSION IS ALSO AUTHORIZED TO EXTEND THE TIME FOR AN ADDITIONAL YEAR
UPON A PROPER SHOWING. 

MR. JUSTICE REED, MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :




WILLIAMS V. UNITED STATES, 327 U.S. 711 


NO. 123.  ARGUED DECEMBER 10, 1945.  - DECIDED APRIL 1, 1946.  - 148
F.2D 960, REVERSED. 


1.  THE ASSIMILATIVE CRIMES ACT PENALIZES, WHEN COMMITTED WITHIN A
FEDERAL ENCLAVE, ANY ACT "WHICH IS NOT MADE PENAL BY ANY LAWS OF
CONGRESS," BUT WHICH IS AN OFFENSE UNDER THE LAW OF THE STATE IN WHICH
SUCH ENCLAVE IS LOCATED.  THE ARIZONA "STATUTORY RAPE" LAW FIXES 18 AS
THE AGE OF CONSENT.  SECTION 279 OF THE FEDERAL CRIMINAL CODE, DEFINING
THE CRIME OF CARNAL KNOWLEDGE, FIXES 16 AS THE AGE OF CONSENT.  HELD
THAT THE ASSIMILATIVE CRIMES ACT DID NOT MAKE THE ARIZONA LAW
APPLICABLE TO THE CASE OF A MARRIED WHITE MAN WHO, WITHIN THE COLORADO
RIVER INDIAN RESERVATION IN ARIZONA, HAD SEXUAL INTERCOURSE WITH AN
UNMARRIED INDIAN GIRL THEN OVER 16 BUT UNDER 18 YEARS OF AGE.  P. 716. 

2.  SO HELD BECAUSE (1) THE VERY ACTS UPON WHICH CONVICTION WOULD
DEPEND HAVE BEEN MADE PENAL BY THE LAWS OF CONGRESS DEFINING ADULTERY,
AND (2) THE OFFENSE KNOWN TO ARIZONA AS "STATUTORY RAPE" HAS BEEN
DEFINED AND PROHIBITED BY SEC. 279 OF THE CRIMINAL CODE, WHICH SECTION
IS NOT TO BE REDEFINED AND ENLARGED BY APPLICATION TO IT OF THE
ASSIMILATIVE CRIMES ACT.  P. 717. 

WILLIAMS V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

PETITIONER WAS CONVICTED IN THE FEDERAL DISTRICT COURT OF AN ALLEGED
OFFENSE COMMITTED WITHIN THE COLORADO RIVER INDIAN RESERVATION IN
ARIZONA.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT OF
CONVICTION.  148 F.2D 960.  THIS COURT GRANTED CERTIORARI.  326 U.S.
701.  REVERSED, P. 725. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE TURNS UPON THE APPLICABILITY OF THE ASSIMILATIVE CRIMES
ACT, SEC. 289 OF THE CRIMINAL CODE, 54 STAT. 234, 18 U.S.C. SEC. 468,
WHICH READS: 

"WHOEVER, WITHIN THE TERRITORIAL LIMITS OF ANY STATE, ORGANIZED
TERRITORY, OR DISTRICT, BUT WITHIN OR UPON ANY OF THE PLACES NOW
EXISTING OR HEREAFTER RESERVED OR ACQUIRED, DESCRIBED IN SECTION 272 OF
THE CRIMINAL CODE (U.S.C., TITLE 18, SEC. 451),  FN1  SHALL DO OR OMIT
THE DOING OF ANY ACT OR THING WHICH IS NOT MADE PENAL BY ANY LAWS OF
CONGRESS, BUT WHICH IF COMMITTED OR OMITTED WITHIN THE JURISDICTION OF
THE STATE, TERRITORY, OR DISTRICT IN WHICH SUCH PLACE IS SITUATED, BY
THE LAWS THEREOF IN FORCE ON FEBRUARY 1, 1940, AND REMAINING IN FORCE
AT THE TIME OF THE DOING OR OMITTING THE DOING OF SUCH ACT OR THING,
WOULD BE PENAL, SHALL BE DEEMED GUILTY OF A LIKE OFFENSE AND BE SUBJECT
TO A LIKE PUNISHMENT." 

THE PETITIONER, A MARRIED WHITE MAN, WAS CONVICTED IN THE DISTRICT
COURT OF THE UNITED STATES FOR THE DISTRICT OF ARIZONA, OF HAVING HAD
SEXUAL INTERCOURSE IN 1943, WITHIN THE COLORADO RIVER INDIAN
RESERVATION IN ARIZONA, WITH AN UNMARRIED INDIAN GIRL WHO WAS THEN OVER
16, BUT UNDER 18, YEARS OF AGE.  THERE WAS NO CHARGE OR EVIDENCE OF USE
OF FORCE BY THE PETITIONER OR OF LACK OF CONSENT BY THE GIRL.  THE
CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT BY A DIVIDED COURT.  WE
GRANTED CERTIORARI UNDER SEC. 240(A) OF THE JUDICIAL CODE BECAUSE OF
THE IMPORTANCE OF THE CASE IN INTERPRETING THE ASSIMILATIVE CRIMES
ACT. 

IT IS NOT DISPUTED THAT THIS INDIAN RESERVATION IS "RESERVED OR
ACQUIRED FOR THE USE OF THE UNITED STATES, AND UNDER THE EXCLUSIVE OR
CONCURRENT JURISDICTION THEREOF,"  FN2  OR THAT IT IS "INDIAN COUNTRY"
WITHIN THE MEANING OF REV. STAT. SEC. 2145.  FN3  THIS MEANS THAT MANY
INCLUDING NOT ONLY THE ASSIMILATIVE CRIMES ACT, BUT ALSO THOSE MAKING
PENAL THE OFFENSES OF RAPE,  FN4  ASSAULT WITH INTENT TO COMMIT RAPE,
FN5  HAVING CARNAL KNOWLEDGE OF A GIRL,  FN6  ADULTERY N7 AND
FORNICATION.  FN8 

WHILE THE LAWS AND COURTS OF THE STATE OF ARIZONA MAY HAVE
JURISDICTION OVER OFFENSES COMMITTED ON THIS RESERVATION BETWEEN
PERSONS WHO ARE NOT INDIANS,  FN9  THE LAWS AND COURTS OF THE UNITED
STATES, RATHER THAN THOSE OF ARIZONA, HAVE JURISDICTION OVER OFFENSES
COMMITTED THERE, AS IN THIS CASE, BY ONE WHO IS NOT AN INDIAN AGAINST
ONE WHO IS AN INDIAN.  FN10 

THE CONVICTION CANNOT BE SUSTAINED UNDER THE FEDERAL DEFINITIONS OF
RAPE OR ASSAULT WITH INTENT TO RAPE, BECAUSE THE FEDERAL CRIME OF RAPE
CARRIES WITH IT THE REQUIREMENT OF PROOF OF THE USE OF FORCE BY THE
OFFENDER AND OF AN ABSENCE OF CONSENT BY THE VICTIM.  OLIVER V. UNITED
STATES, 230 F. 971.  NEITHER OF THESE ELEMENTS WAS CHARGED OR PROVED
HERE.  THE FEDERAL CRIME OF HAVING CARNAL KNOWLEDGE OF A GIRL REQUIRES
PROOF THAT SHE WAS UNDER 16 YEARS OF AGE AT THE TIME OF THE OFFENSE,
WHEREAS HERE THE INDICTMENT CHARGED MERELY THAT SHE WAS UNDER 18 AND
THE PROOF SHOWED THAT SHE WAS BETWEEN 16 AND 18.  WHILE THE INDICTMENT
DID NOT STATE WHETHER OR NOT THE PETITIONER WAS AN INDIAN OR WHETHER OR
NOT HE WAS MARRIED, THE UNDISPUTED EVIDENCE SHOWED THAT HE WAS A
MARRIED WHITE MAN. 

HOWEVER, THE OFFENSE CHARGED COMES WITHIN THE STATUTORY DEFINITION OF
"RAPE" IN SEC. 43-4901 OF THE ARIZONA CODE.  FN11  THAT SECTION EXPANDS
THE CRIME OF "STATUTORY RAPE" SO AS TO INCLUDE SEXUAL INTERCOURSE WITH
A GIRL UNDER 18 INSTEAD OF MERELY WITH A GIRL UNDER 16.  ACCORDINGLY,
THE QUESTION HERE IS WHETHER OR NOT THE ASSIMILATIVE CRIMES ACT MAKES
THIS SECTION APPLICABLE TO INDIAN RESERVATIONS IN ARIZONA.  THE
QUESTION EXTENDS NOT ONLY TO THE DEFINITION OF THE OFFENSE BUT ALSO TO
THE PUNISHMENT PRESCRIBED.  THE ARIZONA CODE FIXES THE PUNISHMENT FOR
ITS VIOLATION IN THOSE INSTANCES WHERE VIOLATIONS WOULD NOT COME WITHIN
SEC. 279 OF THE FEDERAL CRIMINAL CODE.  UNDER THOSE CIRCUMSTANCES, ON
AN INDIAN RESERVATION IN ARIZONA, THE STATUTORY PUNISHMENT, FIXED BY
SEC. 279 OF THE FEDERAL CRIMINAL CODE, FOR A MAN, NOT AN INDIAN, WHO
HAD CARNAL KNOWLEDGE OF AN INDIAN GIRL UNDER 16, WOULD BE IMPRISONMENT
FOR NOT MORE THAN 15 YEARS FOR THE FIRST OFFENSE AND NOT MORE THAN 30
YEARS FOR A SUBSEQUENT OFFENSE, WITH NO MINIMUM SENTENCE SPECIFIED.  ON
THE SAME FACTS, EXCEPT THAT THE GIRL BE BETWEEN 16 AND 18, THE
PUNISHMENT, FIXED BY THE ARIZONA CODE, WOULD BE IMPRISONMENT FOR LIFE
OR FOR ANY TERM NOT LESS THAN FIVE YEARS.  THIS WOULD IMPOSE A MORE
STRINGENT RANGE OF PUNISHMENT, INCLUDING THE MINIMUM SENTENCE OF FIVE
YEARS IMPOSED IN THIS CASE, UPON WHAT CONGRESS IN ITS CRIMINAL CODE
EVIDENTLY HAD TREATED AS A LESSER OFFENSE. 

WE HOLD THAT THE ASSIMILATIVE CRIMES ACT DOES NOT MAKE THE ARIZONA
STATUTE APPLICABLE IN THE PRESENT CASE BECAUSE (1) THE PRECISE ACTS
UPON WHICH THE CONVICTION DEPENDS HAVE BEEN MADE PENAL BY THE LAWS OF
CONGRESS DEFINING ADULTERY  FN12  AND (2) THE OFFENSE KNOWN TO ARIZONA
AS THAT OF "STATUTORY RAPE"  FN13  HAS BEEN DEFINED AND PROHIBITED BY
THE FEDERAL CRIMINAL CODE,  FN14  AND IS NOT TO BE REDEFINED AND
ENLARGED BY APPLICATION TO IT OF THE ASSIMILATIVE CRIMES ACT.  THE FACT
THAT THE DEFINITION OF THIS OFFENSE AS ENACTED BY CONGRESS RESULTS IN A
NARROWER SCOPE FOR THE OFFENSE THAN THAT GIVEN TO IT BY THE STATE, DOES
NOT MEAN THAT THE CONGRESSIONAL DEFINITION MUST GIVE WAY TO THE STATE
DEFINITION.  THIS IS ESPECIALLY CLEAR IN THE PRESENT CASE BECAUSE THE
SPECIFIED ACTS WHICH WOULD COME WITHIN THE ADDITIONAL SCOPE GIVEN TO
THE OFFENSE BY THE STATE THROUGH ITS POSTPONEMENT OF THE AGE OF CONSENT
OF THE VICTIM FROM 16 TO 18 YEARS OF AGE, ARE COMPLETELY COVERED BY THE
FEDERAL CRIMES OF ADULTERY OR FORNICATION.  FN15  THE INTERESTING
LEGISLATIVE HISTORY OF THE ASSIMILATIVE CRIMES ACT  FN16  DISCLOSES
NOTHING TO INDICATE THAT, AFTER CONGRESS HAS ONCE DEFINED A PENAL
OFFENSE, IT HAS AUTHORIZED SUCH DEFINITION TO BE ENLARGED BY THE
APPLICATION TO IT OF A STATE'S DEFINITION OF IT.  IT HAS NOT EVEN BEEN
SUGGESTED THAT A CONFLICTING STATE DEFINITION COULD GIVE A NARROWER
SCOPE TO THE OFFENSE THAN THAT GIVEN TO IT BY CONGRESS.  WE BELIEVE
THAT, SIMILARLY, A CONFLICTING STATE DEFINITION DOES NOT ENLARGE THE
SCOPE OF THE OFFENSE DEFINED BY CONGRESS.  THE ASSIMILATIVE CRIMES ACT
HAS A NATURAL PLACE TO FILL THROUGH ITS SUPPLEMENTATION OF THE FEDERAL
CRIMINAL CODE, WITHOUT GIVING IT THE ADDED EFFECT OF MODIFYING OR
REPEALING EXISTING PROVISIONS OF THE FEDERAL CODE. 

WHERE OFFENSES HAVE BEEN SPECIFICALLY DEFINED BY CONGRESS AND THE
PUBLIC HAS BEEN GUIDED BY SUCH DEFINITIONS FOR MANY YEARS, IT IS NOT
NATURAL FOR CONGRESS BY GENERAL LEGISLATION TO AMEND SUCH DEFINITIONS
OR THE PUNISHMENTS PRESCRIBED FOR SUCH OFFENSES, WITHOUT MAKING CLEAR
ITS INTENT TO DO SO.  FN17  ON THE OTHER HAND, IT IS NATURAL FOR
CONGRESS FROM TIME TO TIME, THROUGH RENEWALS OF THE ASSIMILATIVE CRIMES
ACT, TO USE LOCAL STATUTES TO FILL IN GAPS IN THE FEDERAL CRIMINAL CODE
WHERE NO ACTION OF CONGRESS HAS BEEN TAKEN TO DEFINE THE MISSING
OFFENSES. 

THAT THE ATTORNEYS FOR THE GOVERNMENT HAVE RECOGNIZED THE FORCE OF
SOME OF THESE CONSIDERATIONS IS APPARENT FROM THE FOLLOWING STATEMENT
AT THE CLOSE OF THEIR BRIEF: 

"CONGRESS, OF COURSE, WAS FREE TO FIX POLICY FOR AREAS OF FEDERAL
JURISDICTION EVEN THOUGH IT MIGHT CONFLICT WITH LOCAL POLICY, AND WE
THINK IT HAS DONE SO IN RESPECT OF THE INSTANT SITUATION.  THESE
CONSIDERATIONS, WE THINK, OUTWEIGH THE CONSIDERATIONS IN SUPPORT OF THE
JUDGMENT OF THE COURT BELOW." 

THE FIRST FEDERAL CRIMES ACT, APPROVED APRIL 30, 1790, 1 STAT. 112,
DEALT PRIMARILY WITH SUBJECTS OVER WHICH THE CONSTITUTION HAD EXPRESSLY
GIVEN JURISDICTION TO THE FEDERAL GOVERNMENT.  FOR EXAMPLE, IT DEALT
WITH TREASON, CRIMES UPON THE HIGH SEAS AND COUNTERFEITING OF
SECURITIES OF THE UNITED STATES.  IN SO FAR AS IT RELATED TO FEDERAL
ENCLAVES, IT RECOGNIZED AND PROVIDED PUNISHMENT FOR THE OFFENSES OF
"WILFUL MURDER" AND MANSLAUGHTER IF COMMITTED "WITHIN ANY FORT,
ARSENAL, DOCK-YARD, MAGAZINE, OR IN ANY OTHER PLACE OR DISTRICT OF
COUNTRY, UNDER THE SOLE AND EXCLUSIVE JURISDICTION OF THE UNITED STATES
..."  SEC. 3, 1 STAT. 113.  IT CONTAINED NOTHING CORRESPONDING
DIRECTLY TO THE ASSIMILATIVE CRIMES ACT.  FN18 

ON FEBRUARY 10, 1823, JAMES BUCHANAN, THEN SERVING HIS FIRST TERM IN
THE HOUSE OF REPRESENTATIVES, CLEARLY STATED THE NEED FOR THE
RECOGNITION OF ADDITIONAL FEDERAL CRIMES.  HE SECURED THE ADOPTION OF A
RESOLUTION "THAT THE COMMITTEE ON THE JUDICIARY BE INSTRUCTED TO
INQUIRE WHETHER THERE BE ANY, AND, IF ANY, WHAT, CRIMES NOT NOW
PUNISHABLE BY LAW, TO WHICH PUNISHMENTS OUGHT TO BE AFFIXED."  ANNALS
OF CONGRESS, 17TH CONG., 2D SESS. (1822-1823) 929.  FN19 

IN THE SECOND SESSION OF THE NEXT CONGRESS,  FN20  DANIEL WEBSTER,
CHAIRMAN OF THE COMMITTEE OF THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES, SPONSORED THE BILL WHICH BECAME THE FEDERAL CRIMES ACT
OF MARCH 3, 1825.  AFTER EXTENDED DEBATE,  FN21  CONGRESS EXPANDED THE
LIST OF ENUMERATED FEDERAL CRIMES.  IT ALSO ADDED THE SEC. 3 WHICH
BECAME THE BASIS OF THE ASSIMILATIVE CRIMES ACT OF TODAY: 

"...  IF ANY OFFENCE SHALL BE COMMITTED IN ANY OF THE PLACES
AFORESAID,  FN22  THE PUNISHMENT OF WHICH OFFENCE IS NOT SPECIALLY
PROVIDED FOR BY ANY LAW OF THE UNITED STATES, SUCH OFFENCE SHALL, UPON
A CONVICTION IN ANY COURT OF THE UNITED STATES HAVING COGNISANCE
THEREOF, BE LIABLE TO, AND RECEIVE THE SAME PUNISHMENT AS THE LAWS OF
THE STATE IN WHICH SUCH FORT, DOCK-YARD, NAVY-YARD, ARSENAL, ARMORY, OR
MAGAZINE, OR OTHER PLACE, CEDED AS AFORESAID, IS SITUATED, PROVIDE FOR
THE LIKE OFFENCE WHEN COMMITTED WITHIN THE BODY OF ANY COUNTY OF SUCH
STATE."  4 STAT. 115. 

THIS WAS AMENDED IN 1866, 14 STAT. 13, AND IN 1874 IT WAS
INCORPORATED IN THE REVISED STATUTES AS SEC. 5391 IN SUBSTANTIALLY ITS
THEN EXISTING FORM.  FOR MANY YEARS IT THUS REFERRED TO AN "OFFENSE"
WHICH IS NOT PROHIBITED OR THE PUNISHMENT OF WHICH "IS NOT SPECIALLY
PROVIDED FOR, BY ANY LAW OF THE UNITED STATES  ..."  FN23  A SIMILAR
PROVISION WAS ENACTED IN 1898 IN 30 STAT. 717.  IN 1909, HOWEVER, IN
CODIFYING THE FEDERAL CRIMINAL CODE, THIS SECTION WAS SLIGHTLY CHANGED
WHEN IT WAS INCORPORATED IN THAT CODE AS SEC. 289 IN SUBSTANTIALLY ITS
PRESENT FORM.  THE WORD "OFFENSE" WAS CHANGED SO AS TO AVOID THE USE OF
IT AS REFERRING TO AN ACTION WHICH HAD NOT BEEN PROHIBITED AND,
THEREFORE, TECHNICALLY COULD NOT BE AN "OFFENSE."  POSSIBLY THIS CHANGE
OF THE OLD PHRASE INTO THE PHRASE "ANY ACT OR THING WHICH IS NOT MADE
PENAL BY ANY LAWS OF CONGRESS" LED TO THE PRESENT ATTEMPT TO INTERPRET
IT IN A SPECIFIC SENSE AS REFERRING TO INDIVIDUAL ACTS OF THE PARTIES
RATHER THAN IN A GENERIC SENSE REFERRING TO ACTS OF A GENERAL TYPE OR
KIND.  THE NEW WORDS, IN THE LIGHT OF THE CONGRESSIONAL COMMITTEE'S
EXPLANATION OF THEM,  FN24  CANNOT, HOWEVER, BE REGARDED AS CHANGING
THE SCOPE OF THE ACT SO SUBSTANTIALLY AS TO MAKE IT AMEND AND ENLARGE
THE DEFINITION OF AN EXISTING FEDERAL OFFENSE AS WELL AS TO COVER THE
CASE WHERE AN "OFFENSE" HAD NOT BEEN PROHIBITED.  TO DO SO WOULD BE
CONTRARY TO THE EXPRESSED PURPOSE OF THE COMMITTEE TO CONTINUE, RATHER
THAN TO CHANGE, ITS ORIGINAL MEANING.  IN THE INSTANT CASE NOT ONLY HAS
THE GENERIC ACT BEEN COVERED BY THE DEFINITION OF HAVING CARNAL
KNOWLEDGE, BUT THE SPECIFIC ACTS HAVE BEEN MADE "PENAL" BY THE
DEFINITION OF ADULTERY.  THE SUBSEQUENT AMENDMENTS  FN25  HAVE BEEN
MADE MERELY TO ADVANCE THE DATES AS OF WHICH THE ASSIMILATED LOCAL
STATUTES MUST HAVE BEEN IN FORCE.  THE LAST AMENDMENT, IN 1940,
FOLLOWED AN EXPLANATION OF THE BILL IN IDENTICAL LETTERS FROM THE
ATTORNEY GENERAL TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND TO
THE CHAIRMAN OF THE SENATE COMMITTEE ON THE JUDICIARY.  THESE LETTERS
ADOPTED THE VIEW THAT THE ACT WAS TO COVER CRIMES ON WHICH CONGRESS HAD
NOT LEGISLATED AND DID NOT SUGGEST THAT THE ACT WAS TO ENLARGE OR
OTHERWISE AMEND DEFINITIONS OF CRIMES ALREADY CONTAINED IN THE FEDERAL
CODE.  FN26 

AS TO THE PARTICULAR OFFENSE INVOLVED IN THIS CASE, THE LEGISLATIVE
HISTORY SHOWS AN INCREASING PURPOSE BY CONGRESS TO COVER RAPE AND ALL
RELATED OFFENSES FULLY WITH PENAL LEGISLATION.  IN THE FEDERAL CRIMES
ACT OF 1825, 4 STAT. 115, RAPE WAS PROHIBITED AND MADE PUNISHABLE ONLY
WITHIN CERTAIN AREAS UNDER THE ADMIRALTY AND MARITIME JURISDICTION OF
THE UNITED STATES.  IN THE SAME ACT, THE ASSIMILATIVE CRIMES SECTION
WAS APPLIED TO FEDERAL ENCLAVES.  FN27  IT THUS PROVIDED THE ORIGINAL
FEDERAL PROHIBITION OF SUCH CONDUCT IN THOSE AREAS.  IF CONGRESS HAD
BEEN SATISFIED TO CONTINUE TO APPLY LOCAL LAW TO THIS AND RELATED
OFFENSES IT WOULD HAVE BEEN SIMPLE FOR IT TO HAVE LEFT THE OFFENSE TO
THE ASSIMILATIVE CRIMES ACT.  A CONTRARY INTENT OF CONGRESS HAS BEEN
MADE OBVIOUS.  CONGRESS REPEATEDLY HAS INCREASED ITS LIST OF SPECIFIC
PROHIBITIONS OF RELATED OFFENSES AND HAS ENLARGED THE AREAS WITHIN
WHICH THOSE PROHIBITIONS ARE APPLICABLE.  IT HAS COVERED THE FIELD WITH
UNIFORM FEDERAL LEGISLATION AFFECTING AREAS WITHIN THE JURISDICTION OF
CONGRESS.  FN28    WHEN CONGRESS THUS ENACTED THE STATUTE AS TO CARNAL
KNOWLEDGE IN 1889 IT GAVE SPECIAL ATTENTION TO THE AGE OF CONSENT.  THE
HOUSE OF REPRESENTATIVES FIXED THE AGE AT 14 AND THE SENATE CHANGED IT
TO 16.  20 CONG. REC. 997.  FN29 

FOR THESE REASONS, WE BELIEVE THAT THE ASSIMILATIVE CRIMES ACT DOES
NOT MAKE THE ARIZONA CODE APPLICABLE TO THE FACTS OF THIS CASE.  THE
JUDGMENT OF THE COURT OF APPEALS ACCORDINGLY IS REVERSED. 

FN1  "SEC.  272.  THE CRIMES AND OFFENSES DEFINED IN THIS CHAPTER
(SECS. 272-289, 18 U.S.C. SECS. 451-468) SHALL BE PUNISHED AS HEREIN
PRESCRIBED: 

     .         .         .         .  . 

"THIRD.  WHEN COMMITTED WITHIN OR ON ANY LANDS RESERVED OR ACQUIRED
FOR THE USE OF THE UNITED STATES, AND UNDER THE EXCLUSIVE OR CONCURRENT
JURISDICTION THEREOF, OR ANY PLACE PURCHASED OR OTHERWISE ACQUIRED BY
THE UNITED STATES BY CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH
THE SAME SHALL BE, FOR THE ERECTION OF A FORT, MAGAZINE, ARSENAL,
DOCKYARD, OR OTHER NEEDFUL BUILDING."  35 STAT. 1142, AS AMENDED BY 54
STAT. 304, 18 U.S.C. SEC. 451. 

FN2  SEE NOTE 1. 

FN3  "EXCEPT AS TO  ...  (CERTAIN CRIMES NOT MATERIAL HERE) THE
GENERAL LAWS OF THE UNITED STATES AS TO THE PUNISHMENT OF CRIMES
COMMITTED IN ANY PLACE WITHIN THE SOLE AND EXCLUSIVE JURISDICTION OF
THE UNITED STATES,  ...  SHALL EXTEND TO THE INDIAN COUNTRY."  REV.
STAT. SEC. 2145, 25 U.S.C. SEC. 217.  DONNELLY V. UNITED STATES, 228
U.S. 243, 269; EX PARTE CROW DOG, 109 U.S. 556; UNITED STATES V.
CHAVEZ, 290 U.S. 357; UNITED STATES V. MCGOWAN, 302 U.S. 535; COHEN,
HANDBOOK OF FEDERAL INDIAN LAW, PP. 5, ET SEQ., AND 358, ET SEQ. 

FN4  "WHOEVER SHALL COMMIT THE CRIME OF RAPE SHALL SUFFER DEATH." 
CRIMINAL CODE, SEC. 278, 35 STAT. 1143, 18 U.S.C. SEC. 457. 

FN5  "WHOEVER SHALL ASSAULT ANOTHER WITH INTENT TO COMMIT  ...  RAPE,
SHALL BE IMPRISONED NOT MORE THAN TWENTY YEARS...."  CRIMINAL CODE,
SEC. 276, 35 STAT. 1143, 18 U.S.C. SEC. 455. 

FN6  "WHOEVER SHALL CARNALLY AND UNLAWFULLY KNOW ANY FEMALE UNDER THE
AGE OF SIXTEEN YEARS, OR SHALL BE ACCESSORY TO SUCH CARNAL AND UNLAWFUL
KNOWLEDGE BEFORE THE FACT, SHALL, FOR A FIRST OFFENSE, BE IMPRISONED
NOT MORE THAN FIFTEEN YEARS, AND FOR A SUBSEQUENT OFFENSE BE IMPRISONED
NOT MORE THAN THIRTY YEARS."  CRIMINAL CODE, SEC. 279, 35 STAT. 1143,
18 U.S.C. SEC. 458. 

FN7  "...  THE OFFENSES DEFINED IN THIS CHAPTER (SECS. 311-322) SHALL
BE PUNISHED AS HEREINAFTER PROVIDED, WHEN COMMITTED WITHIN ANY
TERRITORY OR DISTRICT, OR WITHIN OR UPON ANY PLACE WITHIN THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES."  CRIMINAL CODE, SEC. 311, 35 STAT.
1148, 18 U.S.C. SEC. 511. 

"WHOEVER SHALL COMMIT ADULTERY SHALL BE IMPRISONED NOT MORE THAN
THREE YEARS; ...  AND WHEN SUCH ACT IS COMMITTED BETWEEN A MARRIED MAN
AND A WOMAN WHO IS UNMARRIED, THE MAN SHALL BE DEEMED GUILTY OF
ADULTERY."  CRIMINAL CODE, SEC. 316, 35 STAT. 1149, 18 U.S.C. SEC.
516. 

FN8  "IF ANY UNMARRIED MAN OR WOMAN COMMITS FORNICATION, EACH SHALL
BE FINED NOT MORE THAN ONE HUNDRED DOLLARS, OR IMPRISONED NOT MORE THAN
SIX MONTHS."  CRIMINAL CODE, SEC. 318, 35 STAT. 1149, 18 U.S.C. SEC.
518. 

FN9  NEW YORK EX REL. RAY V. MARTIN, 326 U.S. 496; UNITED STATES V.
MCBRATNEY, 104 U.S. 621; DRAPER V. UNITED STATES, 164 U.S. 240. 

FN10  DONNELLY V. UNITED STATES, SUPRA; UNITED STATES V. PELICAN, 232
U.S. 442; UNITED STATES V. RAMSEY, 271 U.S. 467; UNITED STATES V.
CHAVEZ, SUPRA.  COHEN, HANDBOOK OF FEDERAL INDIAN LAW, PP. 364-365, 146
148.  THIS HAS NOT ALWAYS BEEN AS CLEAR AS IT IS NOW.  IN 1896, THIS
COURT, FOLLOWING UNITED STATES V. MCBRATNEY, SUPRA, HELD, IN DRAPER V.
UNITED STATES, SUPRA, THAT THE STATE COURTS, AND NOT THE FEDERAL
COURTS, HAD JURISDICTION OVER A MURDER ON AN INDIAN RESERVATION IN THE
STATE OF MONTANA, BY ONE PERSON NOT AN INDIAN OF ANOTHER NOT AN
INDIAN.  THE EFFECT OF THIS WENT SO FAR THAT, IN 1902, THE COMMITTEE ON
THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES REPORTED THAT, "AS THE
LAW NOW STANDS  ...  OFFENSES COMMITTED BY HALF-BREEDS OR WHITE
PERSONS, WHETHER UPON AN INDIAN OR OTHER PERSON, ARE NOT COGNIZABLE BY
THE FEDERAL COURTS AND GENERALLY GO UNPUNISHED.  THIS STATE OF THE LAW
IS CAUSING SERIOUS CONDITIONS OF DISORDER WITHIN THESE INDIAN
RESERVATIONS."  H.R. REP. NO. 2704, 57TH CONG., 1ST SESS., P. 1.  AFTER
A CESSION OF JURISDICTION BY THE STATE AND AFTER BEING MEMORIALIZED TO
DO SO BY THE LEGISLATURE OF SOUTH DAKOTA, CONGRESS, IN 1903, GRANTED
JURISDICTION SPECIFICALLY TO THE COURTS OF THE UNITED STATES FOR THE
DISTRICT OF SOUTH DAKOTA OVER ACTIONS CHARGING ANY PERSON WITH CERTAIN
MAJOR CRIMES COMMITTED WITHIN ANY INDIAN RESERVATION IN THAT STATE.  32
STAT. 793; 35 STAT. 1151; 36 STAT. 1167; 18 U.S.C. SEC. 549.  THIS
COURT, HOWEVER, IN 1913, IN DONNELLY V. UNITED STATES, SUPRA, AT PP.
271-272, SAID:  "UPON FULL CONSIDERATION WE ARE SATISFIED THAT OFFENSES
COMMITTED BY OR AGAINST INDIANS ARE NOT WITHIN THE PRINCIPLE OF THE
MCBRATNEY AND DRAPER CASES.  THIS WAS IN EFFECT HELD, AS TO CRIMES
COMMITTED BY THE INDIANS, IN THE KAGAMA CASE, 118 U.S. 375, 383,  ...
THIS SAME REASON APPLIES - PERHAPS A FORTIORI - WITH RESPECT TO CRIMES
COMMITTED BY WHITE MEN AGAINST THE PERSONS OR PROPERTY OF THE INDIAN
TRIBES WHILE OCCUPYING RESERVATIONS SET APART FOR THE VERY PURPOSE OF
SEGREGATING THEM FROM THE WHITES AND OTHERS NOT OF INDIAN BLOOD."  WE
FIND NO MATERIAL SPECIAL LEGISLATION ON THIS SUBJECT AFFECTING ARIZONA
EXCEPT ITS ENABLING ACT.  36 STAT. 568, 572.  THAT ACT CONTAINS
PROVISIONS SIMILAR TO THOSE APPLICABLE TO MONTANA, CONSIDERED IN DRAPER
V. UNITED STATES, SUPRA, AND TO THOSE APPLICABLE TO NEW MEXICO,
CONSIDERED IN UNITED STATES V. CHAVEZ, SUPRA. 

FN11  ARIZONA'S DEFINITION OF RAPE AND THE PUNISHMENT THAT ARIZONA
PRESCRIBES FOR ITS COMMISSION DIFFER FROM THOSE RELATING EITHER TO RAPE
OR CARNAL KNOWLEDGE UNDER THE FEDERAL CRIMINAL CODE.  THESE DIFFERENCES
WELL ILLUSTRATE THE CONFUSING VARIATIONS FROM THE DEFINITION OF A
FEDERAL CRIME AND FROM PROVISIONS FOR ITS PUNISHMENT WHICH WOULD HAVE
TO BE CONSIDERED IF INDICTMENTS WERE PERMITTED UNDER THE ASSIMILATIVE
CRIMES ACT FOR EVERY ACT COMMITTED WITHIN A FEDERAL ENCLAVE AND WHICH
MIGHT COME WITHIN A STATE'S ENLARGEMENT OF THE FEDERAL DEFINITION OF
THE SAME OFFENSE.  SECTION 43-4901 OF THE ARIZONA CODE OF 1939
PROVIDES: 

"RAPE IS AN ACT OF SEXUAL INTERCOURSE ACCOMPLISHED WITH A FEMALE, NOT
THE WIFE OF THE PERPETRATOR, UNDER ANY OF THE FOLLOWING CIRCUMSTANCES: 

"WHERE THE FEMALE IS UNDER THE AGE OF EIGHTEEN (18) YEARS; 

"WHERE SHE IS INCAPABLE, THROUGH LUNACY OR ANY OTHER UNSOUNDNESS OF
MIND, WHETHER TEMPORARY OR PERMANENT, OF GIVING LEGAL CONSENT; 

"WHERE SHE RESISTS, BUT HER RESISTANCE IS OVERCOME BY FORCE OR
VIOLENCE; 

"WHERE SHE IS PREVENTED FROM RESISTING BY THREATS OF IMMEDIATE AND
GREAT BODILY HARM, ACCOMPANIED BY APPARENT POWER OF EXECUTION, OR BY
ANY INTOXICATING, NARCOTIC, OR ANAESTHETIC SUBSTANCE, ADMINISTERED BY
OR WITH THE PRIVITY OF THE ACCUSED; 

"WHERE SHE IS AT THE TIME UNCONSCIOUS OF THE NATURE OF THE ACT, AND
THIS IS KNOWN TO THE ACCUSED; 

"WHERE SHE SUBMITS, UNDER A BELIEF THAT THE PERSON COMMITTING THE ACT
IS HER HUSBAND, AND THIS BELIEF IS INDUCED BY ANY ARTIFICE, PRETENSE OR
CONCEALMENT PRACTICED BY THE ACCUSED, WITH INTENT TO INDUCE SUCH BELIEF
... 

"RAPE IS PUNISHABLE BY IMPRISONMENT IN THE STATE PRISON FOR LIFE OR
FOR ANY TERM OF YEARS NOT LESS THAN FIVE (5)." 

FN12  SEE NOTE 7, SUPRA. 

FN13  SEE NOTE 11, SUPRA, AND FOR THE USE OF THIS DESIGNATION OF THE
CRIME IN ARIZONA SEE SAGE V. STATE, 22 ARIZ. 151, 195 P. 533, AND
TAYLOR V. ARIZONA, 55 ARIZ. 29, 97 P.2D 927. 

FN14  SEE NOTE 6, SUPRA. 

FN15  SEE NOTES 7 AND 8, SUPRA. 

FN16  SEE UNITED STATES V. PRESS PUBLISHING CO., 219 U.S. 1, 10-13,
AND JOHNSON V. YELLOW CAB CO., 321 U.S. 383, 398-401. 

FN17  IN EX PARTE CROW DOG, 109 U.S. 556, 570-571, MR. JUSTICE
MATTHEWS, WRITING FOR THE COURT, SAID: 

"THE LANGUAGE OF THE EXCEPTION IS SPECIAL AND EXPRESS; THE WORDS
RELIED ON AS A REPEAL ARE GENERAL AND INCONCLUSIVE.  THE RULE IS,
GENERALIA SPECIALIBUS NON DEROGANT.  'THE GENERAL PRINCIPLE TO BE
APPLIED,' SAID BOVILL, C. J., IN THORPE V. ADAMS, L.R. 6 C.P. 135, 'TO
THE CONSTRUCTION OF ACTS OF PARLIAMENT IS THAT A GENERAL ACT IS NOT TO
BE CONSTRUED TO REPEAL A PREVIOUS PARTICULAR ACT, UNLESS THERE IS SOME
EXPRESS REFERENCE TO THE PREVIOUS LEGISLATION ON THE SUBJECT, OR UNLESS
THERE IS A NECESSARY INCONSISTENCY IN THE TWO ACTS STANDING TOGETHER.' 
'AND THE REASON IS,' SAID WOOD, V.C., IN FITZGERALD V. CHAMPENYS, 30
L.J.N.S. EQ. 782; 2 JOHNS.  AND HEM.  31-54, 'THAT THE LEGISLATURE
HAVING HAD ITS ATTENTION DIRECTED TO A SPECIAL SUBJECT, AND HAVING
OBSERVED ALL THE CIRCUMSTANCES OF THE CASE AND PROVIDED FOR THEM, DOES
NOT INTEND BY A GENERAL ENACTMENT AFTERWARDS TO DEROGATE FROM ITS OWN
ACT WHEN IT MAKES NO SPECIAL MENTION OF ITS INTENTION SO TO DO.'" 

IN FRANKLIN V. UNITED STATES, 216 U.S. 559, 568, IN REFERRING TO THE
ASSIMILATIVE CRIMES ACT, IT WAS SAID, "BY THIS ACT CONGRESS ADOPTED FOR
THE GOVERNMENT OF THE DESIGNATED PLACES,  ...  THE CRIMINAL LAWS THEN
EXISTING IN THE SEVERAL STATES WITHIN WHICH SUCH PLACES WERE SITUATED,
IN SO FAR AS SAID LAWS WERE NOT DISPLACED BY SPECIFIC LAWS ENACTED BY
CONGRESS." 

FN18  ITS NEAREST APPROACH TO AN ASSIMILATIVE CRIMES ACT WAS IN ITS
DEFINITION OF PIRACIES.  IT PROVIDED IN SEC. 8 THAT "IF ANY PERSON OR
PERSONS SHALL COMMIT UPON THE HIGH SEAS, OR IN ANY RIVER, HAVEN, BASIN
OR BAY, OUT OF THE JURISDICTION OF ANY PARTICULAR STATE, MURDER OR
ROBBERY, OR ANY OTHER OFFENCE WHICH IF COMMITTED WITHIN THE BODY OF A
COUNTY, WOULD BY THE LAWS OF THE UNITED STATES BE PUNISHABLE WITH
DEATH; ...  EVERY SUCH OFFENDER SHALL BE DEEMED, TAKEN AND ADJUDGED TO
BE A PIRATE AND FELON, AND BEING THEREOF CONVICTED, SHALL SUFFER DEATH;
..."  1 STAT. 113.  THIS CORRESPONDS TO THE PLAN IN CERTAIN ENGLISH
STATUTES (E.G. 28 HENRY VIII, C. 15(1536); 39 GEORGE III, C. 37(1799))
FOR SUPPLEMENTING THEIR MARITIME LAW WITH "OTHER OFFENSES" KNOWN TO THE
COMMON LAW.  THERE WAS NO ATTEMPT TO ENLARGE THE DEFINITIONS OF
EXISTING CRIMES UNDER THE MARITIME LAW BY CROSS REFERENCE TO BROADER
DEFINITIONS UNDER THE COMMON LAW.  WHEN THE ASSIMILATIVE CRIMES ACT
LATER APPEARED IN THE FEDERAL CRIMINAL CODE, IT FOLLOWED THIS GENERAL
FORM OF STATEMENT. 

FN19  "IN OFFERING THIS RESOLUTION, MR. B. SAID, IT HAD BEEN DECIDED
THAT THE COURTS OF THE UNITED STATES HAD NO POWER TO PUNISH ANY ACT, NO
MATTER HOW CRIMINAL IN ITS NATURE, UNLESS CONGRESS HAVE DECLARED IT TO
BE A CRIME, AND ANNEXED A PUNISHMENT TO ITS PERPETRATION.  OFFENCES AT
THE COMMON LAW, NOT DECLARED SUCH BY ACTS OF CONGRESS, ARE THEREFORE
NOT WITHIN THE RANGE OF THE JURISDICTION OF THE FEDERAL COURTS. 
CONGRESS HAVE ANNEXED PUNISHMENTS BUT TO A VERY FEW CRIMES, AND THOSE
ALL OF AN AGGRAVATED NATURE.  THE CONSEQUENCE IS, THAT A GREAT VARIETY
OF ACTIONS, TO WHICH A HIGH DEGREE OF MORAL GUILT IS ATTACHED, AND
WHICH ARE PUNISHED AS CRIMES AT THE COMMON LAW, AND BY EVERY STATE IN
THE UNION, MAY BE COMMITTED WITH IMPUNITY ON THE HIGH SEAS, AND IN ANY
PLACE WHERE CONGRESS HAS EXCLUSIVE JURISDICTION.  TO AFFORD AN EXAMPLE:
AN ASSAULT AND BATTERY, WITH INTENT TO COMMIT MURDER, MAY BE
PERPETRATED, EITHER ON THE HIGH SEAS, OR IN A FORT, MAGAZINE, ARSENAL,
OR DOCKYARD, BELONGING TO THE UNITED STATES, AND THERE EXISTS NO LAW TO
PUNISH SUCH AN OFFENCE. 

"THIS IS A PALPABLE DEFECT IN OUR SYSTEM, WHICH REQUIRES A REMEDY;
AND IT IS ASTONISHING THAT NONE HAS EVER YET BEEN SUPPLIED."  ANNALS OF
CONGRESS, 17TH CONG., 2D SESS. (1822-1823) 929. 

FN20  IN ITS FIRST SESSION, A BILL FOR SOME ASSIMILATION OF THE
CRIMINAL LAWS OF THE STATES PASSED THE SENATE, BUT APPARENTLY WAS NOT
ACTED UPON BY THE HOUSE.  ANNALS OF CONGRESS, 18TH CONG., 1ST SESS.
(1823-1824) 528, 592, 762.  SEE ALSO, 1 GALES & SEATON, REGISTER OF
DEBATES IN CONGRESS, 338. 

FN21  1 GALES & SEATON, REGISTER OF DEBATES IN CONGRESS, 152-158, 335
341, 348-355, 363-365. 

FN22  "...  ANY FORT, DOCK-YARD, NAVY-YARD, ARSENAL, ARMORY, OR
MAGAZINE, THE SITE WHEREOF IS CEDED TO, AND UNDER THE JURISDICTION OF,
THE UNITED STATES, OR ON THE SITE OF ANY LIGHTHOUSE, OR OTHER NEEDFUL
BUILDING BELONGING TO THE UNITED STATES  ..."  4 STAT. 115, SEC. 1. 

FN23  "IF ANY OFFENSE BE COMMITTED IN ANY PLACE WHICH HAS BEEN OR MAY
HEREAFTER BE, CEDED TO AND UNDER THE JURISDICTION OF THE UNITED STATES,
WHICH OFFENSE IS NOT PROHIBITED, OR THE PUNISHMENT THEREOF IS NOT
SPECIFICALLY PROVIDED FOR, BY ANY LAW OF THE UNITED STATES, SUCH
OFFENSE SHALL BE LIABLE TO, AND RECEIVE, THE SAME PUNISHMENT AS THE
LAWS OF THE STATE IN WHICH SUCH PLACE IS SITUATED, NOW IN FORCE,
PROVIDE FOR THE LIKE OFFENSE WHEN COMMITTED WITHIN THE JURISDICTION OF
SUCH STATE; AND NO SUBSEQUENT REPEAL OF ANY SUCH STATE LAW SHALL AFFECT
ANY PROSECUTION FOR SUCH OFFENSE IN ANY COURT OF THE UNITED STATES." 
REV. STAT. SEC. 5391. 

FN24  THE COMMITTEE'S STATEMENT AS TO THE NEW SECTION WAS: 

"SECTION 5391, REVISED STATUTES, PROVIDES THAT IF ANY 'OFFENSE' BE
COMMITTED, ETC., WHICH 'OFFENSE' IS NOT PROHIBITED OR PUNISHED BY ANY
LAW OF CONGRESS, SUCH 'OFFENSE' SHALL RECEIVE THE SAME PUNISHMENT AS IS
ATTACHED THERETO BY THE LAW OF THE STATE WITHIN WHICH THE PLACE UPON
WHICH IT IS COMMITTED IS SITUATED. 

"AN ACT WHICH IS NOT FORBIDDEN BY LAW AND TO THE COMMISSION OF WHICH
NO PENALTY IS ATTACHED IN NO LEGAL SENSE CAN BE DENOMINATED AN
'OFFENSE.'  THE SECTION HAS THEREFORE BEEN REWRITTEN SO AS TO CORRECTLY
EXPRESS WHAT CONGRESS INTENDED WHEN IT ENACTED THE SECTION REFERRED
TO."  H.R. REP. NO. 2, 60TH CONG., 1ST SESS., P. 25.  SEE ALSO, NOTES
ON THE DECISION IN THE INSTANT CASE BELOW.  59 HARV. L. REV. 131; 45
COL. L. REV. 972; AND SEE UNITED STATES V. FRANKLIN, 174 F. 163, WRIT
OF ERROR DISMISSED, 216 U.S. 559, 568.    FN25  48 STAT. 152; 49 STAT.
394; 54 STAT. 234. 

FN26  "CERTAIN CRIMES COMMITTED ON FEDERAL RESERVATIONS ARE EXPRESSLY
DEFINED IN THE CRIMINAL CODE.  THIS IS TRUE OF GRAVE OFFENSES, SUCH AS
MURDER, MANSLAUGHTER, RAPE, ASSAULT, MAYHEM, ROBBERY, ARSON, AND
LARCENY (U.S.C., TITLE 18, SECS. 451-467).  THE CONGRESS HAS NOT,
HOWEVER, LEGISLATED AS TO OTHER CRIMES COMMITTED ON FEDERAL
RESERVATIONS, BUT HAS PROVIDED GENERALLY THAT AS TO THEM, THE LAW OF
THE STATE WITHIN WHICH THE RESERVATION IS SITUATED, SHALL BE APPLICABLE
(CRIMINAL CODE, SEC. 289; U.S.C., TITLE 18, SEC. 468)."  QUOTED IN H.
REP. NO. 1584, 76TH CONG., 3D SESS., P. 2 AND S. REP. NO. 1699, 76TH
CONG., 3D SESS., P. 1. 

FN27  SEE NOTE 22, SUPRA. 

FN28  RAPE:  (1825) 4 STAT. 115, APPLIED TO THE HIGH SEAS BUT NOT TO
FEDERAL ENCLAVES; (1874) REV. STAT. SEC. 5345 APPLIED TO FEDERAL
ENCLAVES; (1909) 35 STAT. 1143.  ASSAULT WITH INTENT TO COMMIT RAPE:
(1825) 4 STAT. 121, ON HIGH SEAS BUT NOT WITHIN FEDERAL ENCLAVES:
(1874) REV. STAT. SEC. 5346; (1909) 35 STAT. 1143.  CARNAL KNOWLEDGE:
(1889) 25 STAT. 658, AGE OF CONSENT FIXED AT 16; (1909) 35 STAT. 1143. 
ADULTERY:  (1887) 24 STAT. 635, IN CONNECTION WITH THE AMENDMENT OF
BIGAMY STATUTES; (1909) 35 STAT. 1149.  FORNICATION:  (1887) 24 STAT.
636, IN CONNECTION WITH REVISION OF BIGAMY STATUTES; (1909) 35 STAT.
1149.  SEE ALSO, CRIMINAL CODE, SEC. 312, OBSCENE LITERATURE (1873);
SEC. 313, POLYGAMY (1862); SEC. 314, UNLAWFUL COHABITATION (1882); SEC.
317, INCEST (1887).  18 U.S.C. SECS. 512-517. 

FN29  SENATOR FAULKNER, IN CHARGE OF THE BILL, SAID:  "...  THE AGE
WAS FIXED BY THE COMMITTEE AFTER CONSIDERABLE DISCUSSION AND AN
EXAMINATION OF THE LAWS OF THE SEVERAL STATES.  SOME OF THE STATES HAVE
CHANGED THEIR LAWS.  A NUMBER OF THE STATES HAVE FIXED THE AGE OF
SIXTEEN.  SOME OF THEM HAVE FIXED AS HIGH AS EIGHTEEN.  MISSISSIPPI,
COLORADO, AND ALABAMA HAVE FIXED AS HIGH AS EIGHTEEN."  19 CONG. REC.
6501. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










CHERRY COTTON MILLS V. U.S., 327 U.S. 536 


NO. 187.  ARGUED DECEMBER 14, 1945.  - DECIDED MARCH 25, 1946.  103 CT.
CLS. 243, 59 F.SUPP.  122, AFFIRMED. 


1.  UNDER 28 U.S.C. 250(2) GIVING THE COURT OF CLAIMS JURISDICTION TO
HEAR AND DETERMINE "ALL SET-OFFS, COUNTERCLAIMS  ... OR OTHER DEMANDS
WHATSOEVER ON THE PART OF THE GOVERNMENT  ... AGAINST ANY CLAIMANT
AGAINST THE GOVERNMENT IN SAID COURT," IT IS WITHIN THE JURISDICTION OF
THE COURT OF CLAIMS, IN A SUIT AGAINST THE GOVERNMENT FOR A REFUND OF
TAXES, TO HEAR AND DETERMINE A COUNTERCLAIM OF THE GOVERNMENT BASED
UPON A DEBT OWED BY CLAIMANT TO THE RECONSTRUCTION FINANCE
CORPORATION.  P. 539. 

2.  THAT CONGRESS CHOSE TO CALL THE R.F.C. A CORPORATION DOES NOT
ALTER ITS CHARACTERISTICS SO AS TO MAKE IT SOMETHING OTHER THAN IT
ACTUALLY IS, AN AGENCY SELECTED BY THE GOVERNMENT TO ACCOMPLISH PURELY
GOVERNMENTAL PURPOSES, NOTWITHSTANDING THE FACT THAT, IN OTHER
SITUATIONS AND WITH RELATION TO OTHER STATUTES, THIS COURT HAS APPLIED
THE DOCTRINE OF GOVERNMENTAL IMMUNITY OR PRIORITY RATHER STRICTLY.  P.
539. 

3.  THE JURISDICTION OF THE COURT OF CLAIMS TO HEAR AND DETERMINE
COUNTERCLAIMS IS IN NO WAY DEPENDENT UPON THE PRELIMINARY
INTRAGOVERNMENTAL STEPS WHICH PRECEDE COURT ACTION - SUCH AS DIRECTIONS
ISSUED BY THE GENERAL ACCOUNTING OFFICE TO THE TREASURY.  P. 538. 

CHERRY COTTON MILLS, INC. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

PETITIONER SUED THE GOVERNMENT FOR A TAX REFUND IN THE COURT OF
CLAIMS.  THE GOVERNMENT FILED A COUNTERCLAIM FOR A DEBT OWED BY
PETITIONER TO THE R.F.C.  THE COURT OF CLAIMS OVERRULED A CHALLENGE OF
ITS JURISDICTION UNDER 28 U.S.C. 250(2) AND RENDERED JUDGMENT FOR THE
UNITED STATES AND AGAINST PETITIONER FOR THE AMOUNT IT OWED THE R.F.C.
LESS THE AMOUNT OF THE TAX REFUND.  103 CT. CLS. 243, 59 F.SUPP.  122. 
THIS COURT GRANTED CERTIORARI.  326 U.S. 705.  AFFIRMED, P. 540. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1942 THE GOVERNMENT OWED THE PETITIONER A $3,104.87 REFUND OF
PROCESSING AND FLOOR TAXES PAID BY THE PETITIONER UNDER THE
AGRICULTURAL ADJUSTMENT ACT.  THE PETITIONER OWED THE RECONSTRUCTION
FINANCE CORPORATION $5,963.51, BALANCE ON A NOTE FOR BORROWED MONEY. 
THE GENERAL ACCOUNTING OFFICE DIRECTED THE TREASURY NOT TO PAY THE TAX
REFUND TO THE PETITIONER, BUT TO ISSUE A CHECK FOR THE REFUND PAYABLE
TO THE R.F.C. "TO PARTIALLY LIQUIDATE" PETITIONER'S INDEBTEDNESS TO
THAT GOVERNMENTAL AGENCY.  AS AUTHORIZED BY 28 U.S.C. 250(1), THE
PETITIONER THEN BROUGHT SUIT AGAINST THE GOVERNMENT FOR THE TAX REFUND
IN THE COURT OF CLAIMS.  THE GOVERNMENT FILED A COUNTERCLAIM FOR THE
$5,963.51, ASSERTING THE RIGHT TO DO SO UNDER 28 U.S.C. 205(2), WHICH
GIVES THE COURT OF CLAIMS JURISDICTION TO HEAR AND DETERMINE "ALL SET
OFFS, COUNTERCLAIMS,  ...  OR OTHER DEMANDS WHATSOEVER ON THE PART OF
THE GOVERNMENT OF THE UNITED STATES AGAINST ANY CLAIMANT AGAINST THE
GOVERNMENT IN SAID COURT  ..."  THE PETITIONER CHALLENGED THE
JURISDICTION OF THE COURT OF CLAIMS TO HEAR AND DETERMINE THE
COUNTERCLAIM ON THESE TWO GROUNDS:  (1) THE COMPTROLLER EXCEEDED HIS
AUTHORITY IN DIRECTING THE TREASURY TO PAY THE TAX REFUND TO THE R.F.C.
INSTEAD OF TO THE PETITIONER; (2) THE R.F.C. SHOULD BE TREATED IN THE
SAME WAY AS A PRIVATELY OWNED CORPORATION AND WHEN SO TREATED THE
PETITIONER'S ADMITTEDLY VALID INDEBTEDNESS TO R.F.C. IS NOT A CLAIM "ON
THE PART OF THE GOVERNMENT" ENTITLING IT TO SET UP A COUNTERCLAIM UNDER
28 U.S.C. 250(2).  THE COURT OF CLAIMS, REJECTING BOTH THESE
CONTENTIONS, RENDERED JUDGMENT FOR THE UNITED STATES AND AGAINST THE
PETITIONER FOR THE AMOUNT IT OWED THE R.F.C. LESS THE AMOUNT OF THE TAX
REFUND.  WE GRANTED CERTIORARI. 

LITTLE NEED BE SAID AS TO THE CONTENTION CONCERNING THE ALLEGED LACK
OF AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO DIRECT THE TREASURY
NOT TO PAY THE PETITIONER, SINCE WE AGREE WITH THE COURT OF CLAIMS THAT
ITS JURISDICTION TO HEAR AND DETERMINE COUNTERCLAIMS IS IN NO WAY
DEPENDENT UPON THE PRELIMINARY INTRAGOVERNMENTAL STEPS WHICH PRECEDE
COURT ACTION.  FOR THIS REASON THE PETITIONER'S ARGUMENT BASED ON OUR
DECISION IN SKINNER & EDDY CORP. V. MCCARL, 275 U.S. 1, WHERE WE
CONSIDERED THE POWER OF THE COMPTROLLER GENERAL IN RELATION TO WHOLLY
DIFFERENT LEGISLATION, HAS NO BEARING ON THE POWER OF THE COURT OF
CLAIMS UNDER 28 U.S.C. 250(2). 

NOR DO WE FIND ANY JUSTIFICATION FOR GIVING TO 250(2) THE NARROW
INTERPRETATION URGED.  ITS PURPOSE WAS TO PERMIT THE GOVERNMENT, WHEN
SUED IN THE COURT OF CLAIMS, TO HAVE DETERMINED IN A SINGLE SUIT ALL
QUESTIONS WHICH INVOLVED MUTUAL OBLIGATIONS BETWEEN THE GOVERNMENT AND
A CLAIMANT AGAINST IT.  LEGISLATION OF THIS KIND HAS LONG BEEN FAVORED
AND ENCOURAGED BECAUSE OF A BELIEF THAT IT ACCOMPLISHES AMONG OTHER
THINGS SUCH USEFUL PURPOSES AS AVOIDANCE OF "CIRCUITY OF ACTION,
INCONVENIENCE, EXPENSE, CONSUMPTION OF THE COURTS' TIME, AND
INJUSTICE."  CHICAGO & N.W.R. CO. V. LINDELL, 281 U.S. 14, 17 AND CASES
CITED. 

WE HAVE NO DOUBT BUT THAT THE SET-OFF AND COUNTERCLAIM JURISDICTION
OF THE COURT OF CLAIMS WAS INTENDED TO PERMIT THE GOVERNMENT TO HAVE
ADJUDICATED IN ONE SUIT ALL CONTROVERSIES BETWEEN IT AND THOSE GRANTED
PERMISSION TO SUE IT, WHETHER THE GOVERNMENT'S INTEREST HAD BEEN
ENTRUSTED TO ITS AGENCIES OF ONE KIND OR ANOTHER.  EVERY REASON THAT
COULD HAVE PROMPTED CONGRESS TO AUTHORIZE THE GOVERNMENT TO PLEAD
COUNTERCLAIMS FOR DEBTS OWED TO ANY OF ITS OTHER AGENCIES APPLIES WITH
EQUAL FORCE TO DEBTS OWED TO THE R.F.C.  ITS DIRECTORS ARE APPOINTED BY
THE PRESIDENT AND CONFIRMED BY THE SENATE; ITS ACTIVITIES ARE ALL AIMED
AT ACCOMPLISHING A PUBLIC PURPOSE; ALL OF ITS MONEY COMES FROM THE
GOVERNMENT; ITS PROFITS, IF ANY, GO TO THE GOVERNMENT; ITS LOSSES THE
GOVERNMENT MUST BEAR.  THAT THE CONGRESS CHOSE TO CALL IT A CORPORATION
DOES NOT ALTER ITS CHARACTERISTICS SO AS TO MAKE IT SOMETHING OTHER
THAN WHAT IT ACTUALLY IS, AN AGENCY SELECTED BY GOVERNMENT TO
ACCOMPLISH PURELY GOVERNMENTAL PURPOSES.  INLAND WATERWAYS CORP. V.
YOUNG, 309 U.S. 517, 524.  NOR IS THIS CONGRESSIONALLY GRANTED POWER TO
PLEAD A COUNTERCLAIM TO BE REDUCED BECAUSE IN OTHER SITUATIONS, AND
WITH RELATION TO OTHER STATUTES, WE HAVE APPLIED THE DOCTRINE OF
GOVERNMENTAL IMMUNITY OR PRIORITY RATHER STRICTLY.  FN1  THE GOVERNMENT
HERE SOUGHT NEITHER IMMUNITY NOR PRIORITY.  ITS RIGHT TO COUNTERCLAIM
RESTS ON DIFFERENT PRINCIPLES, ONE OF WHICH WAS GRAPHICALLY EXPRESSED
BY THE SPONSORS OF THE ACT OF WHICH SEC. 250(2) IS A PART:  IT IS "AS
MUCH THE DUTY OF THE CITIZEN TO PAY THE GOVERNMENT AS IT IS THE DUTY OF
THE GOVERNMENT TO PAY THE CITIZEN."  58 CONG. GLOBE 1674, APRIL 15,
1862, 37TH CONG., 2D SESS.  AFFIRMED. 

FN1  SLOAN SHIPYARDS CORP. V. U.S. FLEET CORP., 258 U.S. 549; KEIFER
& KEIFER V. RECONSTRUCTION FINANCE CORP., 306 U.S. 381; RECONSTRUCTION
FINANCE CORP. V. J.G. MENIHAN CORP., 312 U.S. 81. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :

















MACAULEY V. WATERMAN S.S. CORP., 327 U.S. 540 


NO. 435.  ARGUED FEBRUARY 27, 28, 1946.  - DECIDED MARCH 25, 1946.  -
151 F.2D 292, REVERSED. 


THE MARITIME COMMISSION PRICE ADJUSTMENT BOARD NOTIFIED RESPONDENT
THAT IT HAD BEEN ASSIGNED TO RENEGOTIATE RESPONDENT'S WAR CONTRACTS
WITH THE COMMISSION PURSUANT TO THE RENEGOTIATION ACT AND REQUESTED
RESPONDENT TO ATTEND AN INITIAL CONFERENCE AND TO SUPPLY INFORMATION. 
RESPONDENT DENIED THE BOARD'S AUTHORITY ON THE GROUND THAT ITS
CONTRACTS WERE WITH A BRITISH MINISTRY AND NOT WITH THE MARITIME
COMMISSION.  THE BOARD REPLIED THAT, ALTHOUGH SIGNED BY A BRITISH
MINISTRY, THEY HAD BEEN NEGOTIATED BY THE MARITIME COMMISSION ON BEHALF
OF THE UNITED STATES, WHICH WAS RESPONSIBLE FOR THE OBLIGATIONS
INCURRED, AND THAT, THEREFORE, THEY WERE SUBJECT TO RENEGOTIATION. 
RESPONDENT REFUSED TO FURNISH THE INFORMATION REQUESTED AND BROUGHT
SUIT IN A DISTRICT COURT FOR A DECLARATORY JUDGMENT THAT THE CONTRACTS
WERE NOT SUBJECT TO THE RENEGOTIATION ACT AND AN INJUNCTION AGAINST
FURTHER RENEGOTIATION PROCEEDINGS.  HELD: 

1.  THE DISTRICT COURT WAS WITHOUT JURISDICTION, BECAUSE RESPONDENT
HAD NOT EXHAUSTED THE ADMINISTRATIVE REMEDIES PROVIDED IN THE
RENEGOTIATION ACT.  MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S.
41.  P. 543. 

2.  UNDER SEC. 403(E)(1) OF THE RENEGOTIATION ACT, WHICH PERMITS
CONTRACTORS AGGRIEVED BY AN ORDER OF AN ADJUSTMENT BOARD TO PETITION
THE TAX COURT FOR A REDETERMINATION AND GIVES THAT COURT EXCLUSIVE
JURISDICTION "TO FINALLY DETERMINE THE AMOUNT, IF ANY, OF SUCH
EXCESSIVE PROFITS," THE TAX COURT HAS AUTHORITY TO DECIDE QUESTIONS OF
COVERAGE.  P. 544. 

3.  THE FACTS THAT WILFUL FAILURE TO COMPLY WITH THE ADJUSTMENT
BOARD'S REQUEST FOR INFORMATION WOULD SUBJECT THE CONTRACTOR TO
PENALTIES UNDER THE ACT, THAT THE CHAIRMAN OF THE COMMISSION AND THE
TAX COURT CAN ENFORCE THEIR ORDERS WITHOUT COURT PROCEEDINGS, THAT THE
ACT SPECIFICALLY PROVIDES THAT THE TAX COURT'S DETERMINATION IS NOT
SUBJECT TO COURT REVIEW, AND THAT, EVEN IF THE CONTRACTOR COULD HAVE
RESORT TO THE COURTS AFTER A TAX COURT DETERMINATION, IT WOULD BE
SUBJECTED TO A MULTIPLICITY OF SUITS TO RECOVER ON THE CONTRACTS, DO
NOT AFFECT THE APPLICATION OF THE RULE REQUIRING EXHAUSTION OF
ADMINISTRATIVE REMEDIES.  P. 545. 

MACAULEY, ACTING CHAIRMAN OF THE UNITED STATES MARITIME COMMISSION, ET
AL. V. WATERMAN STEAMSHIP CORP. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

RESPONDENT SUED FOR A DECLARATORY JUDGMENT THAT CERTAIN CONTRACTS
WERE NOT SUBJECT TO THE RENEGOTIATION ACT AND AN INJUNCTION PROHIBITING
FURTHER RENEGOTIATION PROCEEDINGS.  THE DISTRICT COURT DISMISSED THE
COMPLAINT ON THE GROUND THAT RESPONDENT HAD FAILED TO EXHAUST ITS
ADMINISTRATIVE REMEDIES.  THE COURT OF APPEALS REVERSED.  151 F.2D
292.  THIS COURT GRANTED CERTIORARI.  326 U.S. 709.  REVERSED, P. 545. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE RENEGOTIATION ACT  FN1 AUTHORIZES THE CHAIRMAN OF THE MARITIME
COMMISSION UNDER CERTAIN CONDITIONS PRESCRIBED BY THE ACT TO
RENEGOTIATE WAR CONTRACTS MADE WITH THE COMMISSION FOR PURPOSES OF
ELIMINATING EXCESSIVE PROFITS.  RESPONDENT WATERMAN STEAMSHIP
CORPORATION BROUGHT THIS SUIT AGAINST THE CHAIRMAN OF THE MARITIME
COMMISSION AND THE MARITIME COMMISSION PRICE ADJUSTMENT BOARD SEEKING A
DECLARATORY JUDGMENT THAT CERTAIN CONTRACTS TO WHICH IT WAS A PARTY
WERE NOT SUBJECT TO THE RENEGOTIATION ACT AND AN INJUNCTION PROHIBITING
FURTHER RENEGOTIATION PROCEEDINGS INVOLVING THESE CONTRACTS.  THE
COMPLAINT ALLEGED THE FOLLOWING FACTS HERE RELEVANT:  THE MARITIME
COMMISSION PRICE ADJUSTMENT BOARD NOTIFIED WATERMAN THAT IT HAD BEEN
ASSIGNED TO RENEGOTIATE WATERMAN'S CONTRACTS WITH THE COMMISSION AND TO
DETERMINE THE AMOUNT OF EXCESSIVE PROFITS, IF ANY, REALIZED BY
WATERMAN.  WATERMAN WAS REQUESTED TO ATTEND AN INITIAL CONFERENCE AND
TO SUPPLY INFORMATION CONCERNING THESE CONTRACTS, WHICH INCLUDED
CERTAIN RED SEA CHARTERS.  WATERMAN IN HIS REPLY TO THE BOARD DENIED
ITS AUTHORITY TO RENEGOTIATE THE RED SEA CHARTERS ON THE GROUND THAT
THESE HAD BEEN MADE WITH THE BRITISH MINISTRY OF WAR TRANSPORT AND NOT
WITH THE MARITIME COMMISSION.  THE PRICE ADJUSTMENT BOARD IN ITS ANSWER
TO WATERMAN INSISTED THAT WHILE THE RED SEA CHARTERS WERE SIGNED BY THE
BRITISH MINISTRY FOR "TECHNICAL REASONS," THEY HAD BEEN NEGOTIATED WITH
WATERMAN BY THE MARITIME COMMISSION ON BEHALF OF THE UNITED STATES
GOVERNMENT WHICH WAS NOW RESPONSIBLE FOR PAYING THE OBLIGATIONS
INCURRED, AND THAT THEY WERE THEREFORE RENEGOTIABLE CONTRACTS WITH THE
COMMISSION N2.  RESPONDENT REFUSED TO FURNISH THE INFORMATION REQUESTED
AND BROUGHT THIS SUIT IN THE DISTRICT COURT.  THAT COURT, RELYING ON
MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, DISMISSED THE
COMPLAINT ON THE GROUND THAT WATERMAN HAD FAILED TO EXHAUST THE
ADMINISTRATIVE REMEDIES PROVIDED BY CONGRESS IN THE RENEGOTIATION ACT. 
THE COURT OF APPEALS REVERSED.  151 F.2D 292.  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE QUESTION INVOLVED. 

THE DISTRICT COURT PROPERLY HELD THAT THIS CASE SHOULD BE DISMISSED
ON THE AUTHORITY OF MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S.
41.  IN THAT CASE THE EMPLOYER SOUGHT TO ENJOIN OFFICIALS OF THE
NATIONAL LABOR RELATIONS BOARD FROM HOLDING HEARINGS ON THE GROUND THAT
THE BUSINESS WAS NOT COVERED BY THE NATIONAL LABOR RELATIONS ACT.  THIS
COURT HELD THAT THE INJUNCTION COULD NOT BE ISSUED.  IT POINTED OUT
THAT THE EXCLUSIVE "POWER 'TO PREVENT ANY PERSON FROM ENGAGING IN ANY
UNFAIR PRACTICE AFFECTING COMMERCE'...  (HAD) BEEN VESTED BY CONGRESS
IN THE BOARD," 303 U.S. AT 48, AND CONCLUDED THAT TO GRANT THE
INJUNCTION WOULD VIOLATE THE "LONG SETTLED RULE OF JUDICIAL
ADMINISTRATION THAT NO ONE IS ENTITLED TO JUDICIAL RELIEF FOR A
SUPPOSED OR THREATENED INJURY UNTIL THE PRESCRIBED ADMINISTRATIVE
REMEDY HAS BEEN EXHAUSTED."  UNDER THIS RULE THE DISTRICT COURT HERE
TOO LACKED POWER TO GRANT AN INJUNCTION. 

JUST AS IN THE MYERS CASE, THE CLAIM HERE IS THAT THE CONTRACTS ARE
NOT COVERED BY THE APPLICABLE STATUTE.  AND THE APPLICABLE STATUTE, THE
RENEGOTIATION ACT, LIKE THE NATIONAL LABOR RELATIONS ACT IN THE MYERS
CASE, EMPOWERS ADMINISTRATIVE BODIES TO RULE ON THE QUESTION OF
COVERAGE.  THE RENEGOTIATION ACT AUTHORIZES THE CHAIRMAN OF THE
MARITIME COMMISSION TO CONDUCT INVESTIGATIONS IN THE FIRST INSTANCE TO
DETERMINE WHETHER EXCESSIVE PROFITS HAD BEEN MADE ON CONTRACTS WITH THE
COMMISSION.  A CONTRACTOR AGGRIEVED BY THE CHAIRMAN'S DETERMINATION OF
EXCESSIVE PROFITS MAY HAVE THEM REDETERMINED IN A "DENOVO" PROCEEDING
BEFORE THE TAX COURT.  SECTION 403(E)(1) OF THE ACT PROVIDES THAT THE
TAX COURT "SHALL HAVE EXCLUSIVE JURISDICTION, BY ORDER, TO FINALLY
DETERMINE THE AMOUNT, IF ANY, OF SUCH EXCESSIVE PROFITS  ..."  CONTRARY
TO RESPONDENT'S CONTENTION THAT THIS LANGUAGE LIMITS THE TAX COURT'S
JURISDICTION SO AS NOT TO INCLUDE THE POWER TO DECIDE QUESTIONS OF
COVERAGE, WE THINK THE LANGUAGE SHOWS THAT THE TAX COURT HAS SUCH
POWER.  FOR A DECISION AS TO WHAT ARE AND ARE NOT NEGOTIABLE CONTRACTS
IS AN ESSENTIAL PART IN DETERMINING THE AMOUNT OF A CONTRACTOR'S
EXCESSIVE PROFITS.  THE LEGISLATIVE HISTORY OF THE RENEGOTIATION ACT,
MOREOVER, SHOWS THAT CONGRESS INTENDED THE TAX COURT TO HAVE EXCLUSIVE
JURISDICTION TO DECIDE QUESTIONS OF FACT AND LAW,  FN3  WHICH LATTER
INCLUDE THE ISSUE RAISED HERE OF WHETHER THE CONTRACTS IN QUESTION ARE
SUBJECT TO THE ACT.  IN ORDER TO GRANT THE INJUNCTION SOUGHT THE
DISTRICT COURT WOULD HAVE TO DECIDE THIS ISSUE IN THE FIRST INSTANCE. 
WHETHER IT EVER CAN DO SO OR NOT, IT CANNOT NOW DECIDE QUESTIONS OF
COVERAGE WHEN THE ADMINISTRATIVE AGENCIES AUTHORIZED TO DO SO HAVE NOT
YET MADE THEIR DETERMINATION.  HERE, JUST AS IN THE MYERS CASE, THE
ADMINISTRATIVE PROCESS, FAR FROM BEING EXHAUSTED, HAD HARDLY BEGUN. 
THE DISTRICT COURT CONSEQUENTLY WAS CORRECT IN HOLDING THAT IT LACKED
JURISDICTION TO ACT.  FN4 

RESPONDENT URGES SEVERAL GROUNDS FOR NOT APPLYING THE RULE OF THE
MYERS CASE HERE.  IT POINTS OUT THAT WILFUL FAILURE TO COMPLY WITH THE
ADJUSTMENT BOARD'S REQUEST FOR INFORMATION WOULD SUBJECT IT TO
PENALTIES UNDER THE ACT; THAT THE CHAIRMAN OF THE COMMISSION AND THE
TAX COURT CAN ENFORCE THEIR ORDERS WITHOUT COURT ENFORCEMENT
PROCEEDINGS; THAT THE ACT SPECIFICALLY PROVIDES THAT THE TAX COURT'S
DETERMINATION IS NOT SUBJECT TO COURT REVIEW; AND THAT, EVEN IF
RESPONDENT COULD, SUBSEQUENT TO A TAX COURT DETERMINATION, HAVE RESORT
TO THE COURTS, IT WOULD BE SUBJECTED TO A MULTIPLICITY OF SUITS IN
ORDER TO RECOVER THE MONEY DUE ON THE CONTRACTS.  EVEN IF ONE OR ALL OF
THESE THINGS MIGHT POSSIBLY OCCUR IN THE FUTURE, THAT POSSIBILITY DOES
NOT AFFECT THE APPLICATION OF THE RULE REQUIRING EXHAUSTION OF
ADMINISTRATIVE REMEDIES.  THE DISTRICT COURT HAD NO POWER TO DETERMINE
IN THIS PROCEEDING AND AT THIS TIME ISSUES THAT MIGHT ARISE BECAUSE OF
THESE FUTURE CONTINGENCIES.  ITS JUDGMENT DISMISSING THE COMPLAINT WAS
CORRECT.  THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS REVERSED. 

FN1  56 STAT. 226, 245; 56 STAT. 798, 982; 57 STAT. 347; 57 STAT.
564; 58 STAT. 21, 78. 

FN2  PART OF THE PRICE ADJUSTMENT BOARD LETTER READ AS FOLLOWS: 

"ON APRIL 30, 1941 THE PRESIDENT WROTE THE CHAIRMAN OF THE MARITIME
COMMISSION AND DIRECTED HIM 'AS PART OF THE DEFENSE EFFORT TO WHICH
THIS COUNTRY IS COMMITTED' TO SECURE THE SERVICE OF AT LEAST 2,000,000
TONS OF MERCHANT SHIPPING.  PURSUANT TO THIS DIRECTION, THE COMMISSION
NEGOTIATED WITH THE VESSEL OWNERS.  THE VESSELS WERE MADE AVAILABLE, A
CHARTER PARTY WAS SIGNED WITH THE BRITISH MINISTRY OF WAR TRANSPORT FOR
TECHNICAL REASONS BUT THE COMMISSION AGREED TO PAY THE VESSEL OWNER THE
AGREED COMPENSATION FOR THE USE OF THE VESSEL.  THIS ARRANGEMENT WAS
EVIDENCED BY CORRESPONDENCE BETWEEN THE COMMISSION AND THE VESSEL
OWNER. 

"THERE APPEARS TO HAVE BEEN MUTUALITY OF UNDERSTANDING AMONG ALL THE
PARTIES INTERESTED, LEGALITY OF CONSIDERATION AND DEFINIT'NESS AS TO
TERMS, TIME OF PERFORMANCE AND ACCEPTANCE.  PAYMENT WAS MADE IN DUE
COURSE AS AGREED AND THIS PAYMENT CONSTITUTES A PART OF THE COST OF THE
WAR TO THE PEOPLE OF THE UNITED STATES." 

FN3  ONE OF THE SPONSORS OF THE RENEGOTIATION ACT IN THE HOUSE
EXPLAINED THE BILL AS PROVIDING THAT THE TAX COURT COULD MAKE DECISIONS
ON ALL "QUESTIONS OF FACT AND LAW  ..."  90 CONG. REC. 1355. 

FN4  THE SAME PRINCIPLES WHICH JUSTIFIED DISMISSAL OF THE CAUSE
INSOFAR AS IT SOUGHT INJUNCTION JUSTIFIED DENIAL OF THE PRAYER FOR A
DECLARATORY JUDGMENT.  GREAT LAKES DREDGE & DOCK CO. V. HUFFMAN, 319
U.S. 293, 299; COFFMAN V. BREEZE CORPORATIONS, 323 U.S. 316; ALABAMA
STATE FEDERATION OF LABOR V. MCADORY, 325 U.S. 450; BRILLHART V. EXCESS
INS. CO., 316 U.S. 491, 494, 499. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















U.S. EX REL. T.V.A. V. WELCH, 327 U.S. 546 


ARGUED MARCH 7, 1946.  - DECIDED MARCH 25, 1946.  - 150 F.2D 613,
REVERSED. 


TENNESSEE VALLEY AUTHORITY BUILT A POWER DAM CREATING A LARGE
RESERVOIR, THUS FLOODING A HIGHWAY WHICH AFFORDED THE ONLY REASONABLE
MEANS OF ACCESS TO A LARGE AREA OF MOUNTAINOUS LAND CONSTITUTING PART
OF THE WATERSHED AND LYING BETWEEN THE RESERVOIR AND A NATIONAL PARK. 
A NEW ROAD COULD HAVE BEEN BUILT AT A COST DISPROPORTIONATE TO ITS
VALUE TO THE PUBLIC.  AFTER LENGTHY CONSIDERATION OF ALL PUBLIC AND
PRIVATE INTERESTS, IT WAS AGREED BETWEEN THE NATIONAL, STATE AND COUNTY
AUTHORITIES THAT THE BEST SOLUTION OF THE PROBLEM WAS FOR T.V.A. TO
ACQUIRE ALL LAND IN THE ISOLATED AREA AND ADD IT TO THE NATIONAL PARK,
MAKING SATISFACTORY FINANCIAL ADJUSTMENTS WITH ALL INTERESTS, PUBLIC
AND PRIVATE, AND RESERVING ALL RIGHTS REQUIRED TO CARRY OUT THE T.V.A.
PROGRAM.  T.V.A. ADOPTED A RESOLUTION THAT IT DEEMED THE ACQUISITION OF
THE LAND NECESSARY TO CARRY OUT THE PURPOSES OF THE T.V.A. ACT.  ALL
LANDOWNERS IN THE AREA SOLD THEIR PROPERTY VOLUNTARILY, EXCEPT THE SIX
RESPONDENTS HERE.  THEY CONTESTED CONDEMNATION PROCEEDINGS ON THE
GROUND THAT THE TAKING WAS BEYOND THE AUTHORITY CONFERRED BY SECS. 4
AND 25 OF THE T.V.A. ACT TO CONDEMN ALL PROPERTY THAT T.V.A. "DEEMS
NECESSARY FOR CARRYING OUT THE PURPOSES" OF THE ACT, WHICH PLACES BROAD
RESPONSIBILITIES ON T.V.A. RELATING TO NAVIGABILITY, FLOOD CONTROL,
REFORESTATION, MARGINAL LANDS, AND AGRICULTURAL AND INDUSTRIAL
DEVELOPMENT OF THE WHOLE TENNESSEE VALLEY AND SPECIFICALLY ADMONISHES
IT TO COOPERATE WITH OTHER GOVERNMENTAL AGENCIES, FEDERAL, STATE AND
LOCAL, IN RELATION TO THE PROBLEM OF "READJUSTMENT OF THE POPULATION
DISPLACED BY THE CONSTRUCTION OF DAMS, THE ACQUISITION OF RESERVOIR
AREAS, THE PROTECTION OF WATERSHEDS," ETC.  HELD: 

1.  THE CONDEMNATION IS SUSTAINED, SINCE IT WAS FOR A PUBLIC PURPOSE
AUTHORIZED BY THE ACT AND T.V.A. PROCEEDED IN COMPLETE ACCORD WITH THE
CONGRESSIONAL POLICY EMBODIED IN THE ACT.  P. 552. 

2.  THE COMMON LAW RULE REQUIRING A STRICT CONSTRUCTION OF POWERS TO
CONDEMN IS NOT APPLICABLE HERE, BECAUSE OF THE SPECIFIC PROVISION OF
SEC. 31 THAT THE ACT SHALL BE "LIBERALLY CONSTRUED" TO CARRY OUT ITS
BROAD PURPOSES.  P. 551. 

3.  IN CONSTRUING THE ACT, A COURT SHOULD NOT BREAK ONE INSEPARABLE
TRANSACTION INTO SEPARATE UNITS BUT SHOULD VIEW THE ENTIRE TRANSACTION
AS A SINGLE INTEGRATED EFFORT ON THE PART OF T.V.A. TO PERFORM ITS
FUNCTIONS.  PP. 552, 553. 

4.  IT IS THE FUNCTION OF CONGRESS TO DECIDE WHAT TYPE OF TAKING IS
FOR PUBLIC USE AND THE AGENCY AUTHORIZED TO DO THE TAKING MAY DO SO TO
THE FULL EXTENT OF ITS STATUTORY AUTHORITY.  P. 551. 

5.  THE PROVISIONS OF THE ACT SHOW A CLEAR CONGRESSIONAL PURPOSE TO
GRANT T.V.A. ALL POWER NEEDED TO ACQUIRE BY PURCHASE OR CONDEMNATION
LANDS WHICH IT DEEMS NECESSARY FOR CARRYING OUT THE PURPOSES OF THE
ACT.  P. 554. 

6.  NEITHER THE FACT THAT T.V.A. WANTED TO PREVENT A WASTE OF PUBLIC
FUNDS NOR THAT IT INTENDED TO COOPERATE WITH THE NATIONAL PARK SERVICE
DETRACTED FROM ITS POWER TO CONDEMN.  P. 554. 

UNITED STATES EX REL. TENNESSEE VALLEY AUTHORITY V. WELCH. 

NO. 528.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT* . 

*TOGETHER WITH NO. 529, UNITED STATES EX REL. TENNESSEE VALLEY
AUTHORITY V. BURNS ET AL.; NO. 530, UNITED STATES EX REL. TENNESSEE
VALLEY AUTHORITY V. LOLLIS ET AL.; NO. 531, UNITED STATES EX REL.
TENNESSEE VALLEY AUTHORITY V. BRADSHAW ET AL.; NO. 532, UNITED STATES
EX REL. TENNESSEE VALLEY AUTHORITY V. RUST ET AL.; AND NO. 533, UNITED
STATES EX REL. TENNESSEE VALLEY AUTHORITY V. HYATT ET AL., ON
CERTIORARI TO THE SAME COURT, ARGUED AND DECIDED ON THE SAME DATES. 

THE UNITED STATES INSTITUTED PROCEEDINGS UNDER THE TENNESSEE VALLEY
AUTHORITY ACT TO CONDEMN CERTAIN LAND.  THE DISTRICT COURT DISMISSED
THE PETITION.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  150 F.2D 613. 
THIS COURT GRANTED CERTIORARI.  326 U.S. 714.  REVERSED, P. 555. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES, ON BEHALF OF THE TENNESSEE VALLEY AUTHORITY, FILED
PETITIONS IN THE DISTRICT COURT TO CONDEMN SIX TRACTS OF LAND LOCATED
IN NORTH CAROLINA AND OWNED BY THE SEVERAL RESPONDENTS.  IT ASSERTED
THAT THE POWER TO CONDEMN THE LAND IN QUESTION WAS CONFERRED UPON THE
AUTHORITY BY THE PROVISIONS OF THE TENNESSEE VALLEY AUTHORITY ACT AS
AMENDED.  48 STAT. 58 AS AMENDED, 16 U.S.C. 831-831DD.  THE DISTRICT
COURT HELD THAT THE ACT DID NOT AUTHORIZE CONDEMNATIONS UNDER THE FACTS
SHOWN BY THE EVIDENCE AND DISMISSED THE PETITIONS.  THE CIRCUIT COURT
OF APPEALS AFFIRMED.  150 F.2D 613.  SINCE THE GRANT OF POWER TO
CONDEMN NEEDED PROPERTIES IS AN ESSENTIAL PART OF THE ACT, WE GRANTED
CERTIORARI. 

THE FOLLOWING BASIC FACTS FORM THE BACKGROUND OF THIS PROCEEDING:
CONGRESS IN 1942, IN ORDER TO MEET PRESSING POWER NEEDS FOR WAR
PRODUCTION, EMPOWERED THE AUTHORITY TO CONSTRUCT FONTANA DAM, ON THE
LITTLE TENNESSEE RIVER IN NORTH CAROLINA.  H. REP. 1470, 77TH CONG.,
1ST SESS., 25.  THE DAM IS ONE OF THE WORLD'S LARGEST AND CREATES A
RESERVOIR TWENTY-NINE MILES LONG.  BETWEEN THIS RESERVOIR AND THE GREAT
SMOKY MOUNTAINS NATIONAL PARK LIE FORTY-FOUR THOUSAND ACRES OF
MOUNTAINOUS LAND, INCLUDING THE TRACTS WHICH THE GOVERNMENT WANTS TO
CONDEMN HERE.  WHEN CONGRESS AUTHORIZED CONSTRUCTION OF THE DAM, TWO
HUNDRED AND SIXTEEN FAMILIES OCCUPIED THIS AREA.  THEIR ONLY CONVENIENT
MEANS OF INGRESS AND EGRESS, EXCEPT FOR FOOT TRAILS, WAS NORTH CAROLINA
HIGHWAY NO. 288, A ROAD APPROXIMATELY FIFTY MILES IN LENGTH.  WHEN THE
DAM WAS BUILT THE RESERVOIR FLOODED MOST OF THE HIGHWAY, RENDERING IT
USELESS FOR TRAVEL.  AS A RESULT THE AREA REMAINED PRACTICALLY
ISOLATED. 

AS EVENTS HAVE SHOWN, THE PROBLEM THIS SITUATION CREATED COULD NOT BE
EASILY SOLVED.  ANY SOLUTION HAD TO TAKE INTO CONSIDERATION THE
INTERESTS OF THE UNITED STATES, OF NORTH CAROLINA, AND OF SWAIN COUNTY,
N.C., AS WELL AS THE INTERESTS OF THE INDIVIDUALS AFFECTED.  THE UNITED
STATES' INTEREST WAS THAT OF THE T.V.A. AND THE NATIONAL PARK SERVICE. 
THE T.V.A. HAD A DUAL INTEREST.  FIRST, THE ISOLATED AREA, WHILE NOT
ACTUALLY SUBMERGED BY THE RESERVOIR, WAS A PART OF THE WATERSHED.  LEFT
IN PRIVATE HANDS IT COULD BE USED TO FRUSTRATE SOME OF THE OBJECTIVES
OF T.V.A. LEGISLATION.  SECOND, THE FACT THAT THE DAM HAD CAUSED THE
HIGHWAY TO BE FLOODED CREATED A SERIOUS PROBLEM FOR THE INHABITANTS AND
LANDOWNERS IN THE AREA WHO HAD BEEN DAMAGED BY THE PROJECT.  IT WAS THE
STATUTORY DUTY OF THE T.V.A. TO ATTEMPT TO BRING ABOUT PROPER
ADJUSTMENTS IN ORDER TO ALLEVIATE RESULTING HARDSHIP AND
INCONVENIENCE.  AT THE SAME TIME, THE T.V.A. WAS NOT SUPPOSED TO WASTE
THE MONEY OF THE UNITED STATES.  THE UNITED STATES' INTEREST IN THE
LAND THROUGH THE NATIONAL PARK SERVICE WAS DUE TO THE FACT THAT THIS
PARTICULAR AREA HAD BEEN INCLUDED IN THE GREAT SMOKY MOUNTAINS PARK
PROJECT.  HAD THIS LAND BEEN ACTUALLY OWNED BY THE UNITED STATES FOR
PARK PURPOSES IT WOULD HAVE BEEN EASIER TO SUBJECT IT TO SERVITUDES IN
THE INTEREST OF THE T.V.A. DEVELOPMENT.  NORTH CAROLINA WAS INTERESTED
IN THE LAND BECAUSE IT WAS ITS DUTY TO CONTINUE TO HOLD AND MAINTAIN A
HIGHWAY SO LONG AS ITS CITIZENS CONTINUED TO LIVE WITHIN THE AREA. 
SWAIN COUNTY HAD A SIMILAR INTEREST.  IT HAD ISSUED BONDS TO FINANCE
BUILDING THE HIGHWAY.  PART OF THE BOND ISSUE WAS STILL OUTSTANDING. 

CONFERENCES BETWEEN THE INTERESTED GROUPS BROUGHT TO LIGHT FACTS
WHICH LED TO THE SOLUTION ULTIMATELY ADOPTED.  IT WAS AGREED ON ALL
SIDES THAT THE OLD ROAD WAS NARROW, DANGEROUS, AND FAR BELOW MODERN
STANDARDS FOR USEFUL HIGHWAYS.  INVESTIGATION SHOWED THAT REPLACEMENT
OF THE OLD ROAD WITH THE SAME UNDESIRABLE TYPE OF HIGHWAY WOULD COST
ABOUT $1,400,000.00, WHILE THE COST OF BUILDING AN IMPROVED HIGHWAY
WOULD GREATLY EXCEED THAT AMOUNT.  ALL PARTIES FELT THAT THE UNITED
STATES HAD NEITHER A LEGAL NOR MORAL DUTY TO BUILD A NEW ROAD OF THE
SUPERIOR TYPE AND QUALITY NEEDED.  THIS MEANT THAT TYPE OF ROAD COULD
ONLY BE BUILT IF NORTH CAROLINA WOULD BEAR THE ADDITIONAL EXPENSE. 
SINCE THE HIGHWAY CARRIED NO THROUGH TRAFFIC AND SERVICED SO FEW
PEOPLE, THE STATE WAS NOT WILLING TO PAY FOR THE ADDED COST AND ALL
PARTIES AGREED THAT SUCH AN EXPENDITURE WOULD BE WASTEFUL AND
UNJUSTIFIABLE.  THE WAR PRODUCTION BOARD PRESENTED FURTHER OBSTACLES. 
IT WAS OF THE OPINION THAT THE ROAD WAS NOT SUFFICIENTLY ESSENTIAL TO
WARRANT USE OF THE MATERIALS AND MANPOWER ITS CONSTRUCTION WOULD
REQUIRE.  FOR THESE AND OTHER REASONS NORTH CAROLINA OBJECTED TO THE
T.V.A.'S SETTLING THE CONTROVERSY BY A MERE PAYMENT OF DAMAGES TO IT
FOR INJURY TO THE ROAD AND BY THE PAYMENT OF DAMAGES TO INDIVIDUAL
OWNERS FOR DESTROYING THEIR ACCESS TO THE AREA.  THE STATE CONTENDED
THAT THIS WOULD LEAVE THE AREA IN PRIVATE HANDS WITH NO ADEQUATE ROADS
TO SERVE THE PEOPLE AND WOULD IMPOSE UNWISE, IF NOT IMPOSSIBLE BURDENS,
ON THE STATE AND COUNTY IN CONNECTION WITH PROVIDING SCHOOLS, POLICE
PROTECTION, HEALTH SERVICES, AND OTHER NECESSARY FACILITIES. 

AFTER A YEAR AND A HALF OF NEGOTIATIONS A SOLUTION WAS WORKED OUT. 
AFTER THE PROPOSED SOLUTION WAS APPROVED BY THE GOVERNOR, THE COUNCIL
OF THE STATE, AND THE LEGISLATURE OF NORTH CAROLINA, IT WAS EMBODIED IN
A SETTLEMENT AGREEMENT BETWEEN THE STATE, THE COUNTY, THE NATIONAL PARK
SERVICE, AND THE T.V.A.  UNDER THAT AGREEMENT THE T.V.A. WITH THE AID
OF A $100,000 CONTRIBUTION BY THE STATE WAS TO ACQUIRE ALL THE LAND IN
THE ISOLATED AREA, EITHER BY PURCHASE OR CONDEMNATION, SO AS TO RELIEVE
THE STATE FROM FURTHER RESPONSIBILITY FOR MAINTAINING A HIGHWAY TO THAT
RETIRE ITS OUTSTANDING ROAD BONDS; AND THE AUTHORITY WAS TO TRANSFER
ALL THE AREA LANDS TO THE NATIONAL PARK SERVICE FOR INCLUSION WITHIN
THE GREAT SMOKY MOUNTAINS NATIONAL PARK BUT RESERVING TO THE T.V.A. ALL
RIGHTS REQUIRED TO CARRY OUT THE T.V.A. PROGRAM.  THE AGREEMENT, THUS,
SATISFIED THE INTERESTS OF THE STATE, THE COUNTY, THE T.V.A., AND THE
NATIONAL PARK SERVICE.  THE COST TO THE UNITED STATES WAS SEVERAL
HUNDRED THOUSAND DOLLARS LESS THAN THE COST OF REBUILDING THE OLD
ROAD.  AND ALL THE LANDOWNERS IN THE AREA, EXCEPT THESE SIX RESPONDENTS
WHO REFUSED TO SELL, HAVE RECEIVED FULL COMPENSATION FOR THEIR
PROPERTY. 

THE COURTS BELOW HAVE HELD THAT T.V.A. HAD NO POWER UNDER THE ACT TO
CONDEMN THE TRACTS OF THESE RESPONDENTS AS CONTEMPLATED BY THE
AGREEMENT.  THE DISTRICT COURT REACHED THIS CONCLUSION BY LIMITING THE
AUTHORITY'S POWER SO THAT IT CAN CONDEMN ONLY THOSE LANDS WHICH ARE
NEEDED FOR THE DAM AND RESERVOIR PROPER.  IT REASONED THAT THE COMMON
LAW RULE OF CONSTRUCTION REQUIRES THAT STATUTORY POWERS TO CONDEMN BE
GIVEN A RESTRICTIVE INTERPRETATION.  BUT SEC. 31 OF THE ACT EXPRESSLY
PROVIDES THAT THE ACT SHALL BE "LIBERALLY CONSTRUED TO CARRY OUT THE
PURPOSES OF CONGRESS TO PROVIDE  ...  FOR THE NATIONAL DEFENSE, IMPROVE
NAVIGATION, CONTROL DESTRUCTIVE FLOODS AND PROMOTE INTERSTATE COMMERCE
AND THE GENERAL WELFARE."  IN THE FACE OF THIS DECLARATION, THE
DISTRICT COURT ERRED IN FOLLOWING THE ASSERTED COMMON LAW RULE. 

THE CIRCUIT COURT OF APPEALS, WITHOUT EXPRESSLY RELYING ON A
COMPELLING RULE OF CONSTRUCTION THAT WOULD GIVE THE RESTRICTIVE SCOPE
TO THE T.V.A. ACT GIVEN IT BY THE DISTRICT COURT, ALSO INTERPRETED THE
STATUTE NARROWLY.  IT FIRST ANALYZED THE FACTS BY SEGREGATING THE TOTAL
PROBLEM INTO DISTINCT PARTS AND, THUS, CAME TO THE CONCLUSION THAT
T.V.A.'S PURPOSE IN CONDEMNING THE LAND IN QUESTION WAS ONLY ONE TO
REDUCE ITS LIABILITY ARISING FROM THE DESTRUCTION OF THE HIGHWAY.  THE
COURT HELD THAT USE OF THE LANDS FOR THAT PURPOSE IS A "PRIVATE" AND
NOT A "PUBLIC USE" OR, AT BEST, A "PUBLIC USE" NOT AUTHORIZED BY THE
STATUTE.  WE ARE UNABLE TO AGREE WITH THE REASONING AND CONCLUSION OF
THE CIRCUIT COURT OF APPEALS. 

WE THINK THAT IT IS THE FUNCTION OF CONGRESS TO DECIDE WHAT TYPE OF
TAKING IS FOR A PUBLIC USE AND THAT THE AGENCY AUTHORIZED TO DO THE
TAKING MAY DO SO TO THE FULL EXTENT OF ITS STATUTORY.  UNITED STATES V.
GETTYSBURG ELECTRIC R. CO., 160 U.S. 668, 679.  IT IS TRUE THAT THIS
COURT DID SAY IN CINCINNATI V. VESTER, 281 U.S. 439, 446, THAT "IT IS
WELL ESTABLISHED THAT IN CONSIDERING THE APPLICATION OF THE FOURTEENTH
AMENDMENT TO CASES OF EXPROPRIATION OF PRIVATE PROPERTY, THE QUESTION
WHAT IS A PUBLIC USE IS A JUDICIAL ONE."  BUT THE COURT'S JUDGMENT IN
THAT CASE DENIED THE POWER TO CONDEMN "EXCESS" PROPERTY ON THE GROUND
THAT THE STATE LAW HAD NOT AUTHORIZED IT. AND IN HAIRSTON V. DANVILLE &
WESTERN R. CO., 208 U.S. 598, 607, THIS COURT, REFERRING TO THE "RULE"
LATER STATED IN THE VESTER CASE, SAID THAT "NO CASE IS RECALLED WHERE
THIS COURT HAS CONDEMNED AS A VIOLATION OF THE FOURTEENTH AMENDMENT A
TAKING UPHELD BY THE STATE COURT AS A TAKING FOR PUBLIC USES IN
CONFORMITY WITH ITS LAWS."  AND SEE MADISONVILLE TRACTION CO. V. MINING
CO., 196 U.S. 239, 257, 260-261.  BUT WHATEVER MAY BE THE SCOPE OF THE
JUDICIAL POWER TO DETERMINE WHAT IS A "PUBLIC USE" IN FOURTEENTH
AMENDMENT CONTROVERSIES, THIS COURT HAS SAID THAT WHEN CONGRESS HAS
SPOKEN ON THIS SUBJECT "ITS DECISION IS ENTITLED TO DEFERENCE UNTIL IT
IS SHOWN TO INVOLVE AN IMPOSSIBILITY."  OLD DOMINION CO. V. UNITED
STATES, 269 U.S. 55, 66.  ANY DEPARTURE FROM THIS JUDICIAL RESTRAINT
WOULD RESULT IN COURTS DECIDING ON WHAT IS AND IS NOT A GOVERNMENTAL
FUNCTION AND IN THEIR INVALIDATING LEGISLATION ON THE BASIS OF THEIR
VIEW ON THAT QUESTION AT THE MOMENT OF DECISION, A PRACTICE WHICH HAS
PROVED IMPRACTICABLE IN OTHER FIELDS.  SEE CASE V. BOWLES, 327 U.S. 92,
101; UNITED STATES V. NEW YORK, 326 U.S. 572.  WE HOLD THAT THE T.V.A.
TOOK THE TRACTS HERE INVOLVED FOR A PUBLIC PURPOSE, IF, AS WE THINK IS
THE CASE, CONGRESS AUTHORIZED THE AUTHORITY TO ACQUIRE, HOLD, AND USE
THE LANDS TO CARRY OUT THE PURPOSES OF THE T.V.A. ACT. 

IN PASSING UPON THE AUTHORITY OF THE T.V.A. WE WOULD DO VIOLENCE TO
FACT WERE WE TO BREAK ONE INSEPARABLE TRANSACTION INTO SEPARATE UNITS. 
WE VIEW THE ENTIRE TRANSACTION AS A SINGLE INTEGRATED EFFORT ON THE
PART OF T.V.A. TO CARRY ON ITS CONGRESSIONALLY AUTHORIZED FUNCTIONS. 
CF. UNITED STATES V. COMMODORE PARK, 324 U.S. 386, 392.  AND WE FIND
NOT ONLY THAT CONGRESS AUTHORIZED THE AUTHORITY'S ACTION, BUT ALSO THAT
THE T.V.A. HAS PROCEEDED IN COMPLETE ACCORD WITH THE CONGRESSIONAL
POLICY EMBODIED IN THE ACT.  THAT ACT DOES FAR MORE THAN AUTHORIZE THE
T.V.A. TO BUILD ISOLATED DAMS.  THE BROAD RESPONSIBILITIES PLACED ON
THE AUTHORITY RELATE TO NAVIGABILITY, FLOOD CONTROL, REFORESTATION,
MARGINAL LANDS, AND AGRICULTURAL AND INDUSTRIAL DEVELOPMENT OF THE
WHOLE TENNESSEE VALLEY.  THE T.V.A. WAS EMPOWERED TO MAKE CONTRACTS,
PURCHASE AND SELL PROPERTY DEEMED NECESSARY OR CONVENIENT IN THE
TRANSACTION OF ITS BUSINESS, AND TO BUILD DAMS, RESERVOIRS,
TRANSMISSION LINES, POWER HOUSES, AND OTHER STRUCTURES.  IT WAS
PARTICULARLY ADMONISHED TO COOPERATE WITH OTHER GOVERNMENTAL AGENCIES -
FEDERAL, STATE, AND LOCAL - SPECIFICALLY IN RELATION TO THE PROBLEM OF
"READJUSTMENT OF THE POPULATION DISPLACED BY THE CONSTRUCTION OF DAMS,
THE ACQUISITION OF RESERVOIR AREAS, THE PROTECTION OF WATERSHEDS, THE
ACQUISITION OF RIGHTS-OF-WAY, AND OTHER NECESSARY ACQUISITIONS OF LAND,
IN ORDER TO EFFECTUATE THE PURPOSES OF THE ACT."  ALL OF THE
AUTHORITY'S ACTIONS IN THESE RESPECTS WERE TO BE DIRECTED TOWARDS
"DEVELOPMENT OF THE NATURAL RESOURCES OF THE TENNESSEE RIVER DRAINAGE
BASIN AND OF SUCH ADJOINING TERRITORY AS MAY BE RELATED TO OR
MATERIALLY AFFECTED BY THE DEVELOPMENT CONSEQUENT TO THIS ACT  ...  ALL
FOR THE GENERAL PURPOSE OF FOSTERING AN ORDERLY AND PROPER PHYSICAL,
ECONOMIC, AND SOCIAL DEVELOPMENT OF SAID AREAS  ..."  TO DISCHARGE ITS
RESPONSIBILITIES THE T.V.A. WAS GRANTED "SUCH POWERS AS MAY BE
NECESSARY OR APPROPRIATE" FOR THEIR EXERCISE.  SECTION 4(H) OF THE ACT
GIVES THE T.V.A. THE VERY BROAD POWER TO "EXERCISE THE RIGHT OF EMINENT
DOMAIN  ..."  SECTION 4(I) OF THE ACT EMPOWERS THE AUTHORITY TO CONDEMN
CERTAIN SPECIFIED TYPES OF PROPERTY AND CONCLUDES BY REFERRING TO "ALL
PROPERTY THAT IT (THE AUTHORITY) DEEMS NECESSARY FOR CARRYING OUT THE
PURPOSES OF THIS ACT  ..."  TO MAKE CLEAR BEYOND ANY DOUBT THE T.V.A.'S
BROAD POWER, CONGRESS IN SEC. 25 AUTHORIZED THE AUTHORITY TO FILE
PROCEEDINGS, SUCH AS THE ONES BEFORE US, "FOR THE ACQUISITION BY
CONDEMNATION OF ANY LANDS, EASEMENTS, OR RIGHTS OF WAY WHICH, IN THE
OPINION OF THE CORPORATION, ARE NECESSARY TO CARRY OUT THE PROVISIONS
OF THIS ACT."    ALL OF THESE PROVISIONS SHOW A CLEAR CONGRESSIONAL
PURPOSE TO GRANT THE AUTHORITY ALL THE POWER NEEDED TO ACQUIRE LANDS BY
PURCHASE OR BY CONDEMNATION WHICH IT DEEMS NECESSARY FOR CARRYING OUT
THE ACT'S PURPOSES.  THESE PROCEEDINGS WERE PRECEDED BY A T.V.A.
RESOLUTION THAT IT DID DEEM THESE ACQUISITIONS NECESSARY FOR SUCH
PURPOSES.  DESPITE CONGRESS' CLEAR EXPRESSION OF ITS PURPOSE TO GRANT
BROAD CONDEMNATION POWER TO T.V.A. WE ARE ASKED TO HOLD THAT THE
AUTHORITY'S POWER IS LESS THAN THE POWERS TO CONDEMN GRANTED OTHER
GOVERNMENTAL AGENCIES, WHICH UNDER 40 U.S.C. 257 HAVE BEEN HELD TO HAVE
A POWER TO CONDEMN COEXTENSIVE WITH THEIR POWER TO PURCHASE.  HANSON
CO. V. UNITED STATES, 261 U.S. 581, 587.  NEITHER THE FACT THAT THE
AUTHORITY WANTED TO PREVENT A WASTE OF GOVERNMENT FUNDS, NOR THAT IT
INTENDED TO COOPERATE WITH THE NATIONAL PARK SERVICE DETRACTED FROM ITS
POWER TO CONDEMN GRANTED BY THE ACT.  THE COST OF PUBLIC PROJECTS IS A
RELEVANT ELEMENT IN ALL OF THEM, AND THE GOVERNMENT, JUST AS ANYONE
ELSE, IS NOT REQUIRED TO PROCEED OBLIVIOUS TO ELEMENTS OF COST.  CF.
OLD DOMINION CO. V. UNITED STATES, SUPRA.  AND WHEN SERIOUS PROBLEMS
ARE CREATED BY ITS PUBLIC PROJECTS, THE GOVERNMENT IS NOT BARRED FROM
MAKING A COMMON SENSE ADJUSTMENT IN THE INTEREST OF ALL THE PUBLIC. 
BROWN V. UNITED STATES, 263 U.S. 78.  WHERE PUBLIC NEED REQUIRES
ACQUISITION OF PROPERTY, THAT NEED IS NOT TO BE DENIED BECAUSE OF AN
INDIVIDUAL'S UNWILLINGNESS TO SELL.  KOHL V. UNITED STATES, 91 U.S.
367, 371.  WHEN THE NEED ARISES INDIVIDUALS MAY BE REQUIRED TO
RELINQUISH OWNERSHIP OF PROPERTY SO LONG AS THEY ARE GIVEN THAT JUST
COMPENSATION WHICH THE CONSTITUTION REQUIRES.  STRICKLEY V. HIGHLAND
BOY MINING CO., 200 U.S. 527, 531.  SUCH COMPENSATION CAN BE AWARDED
THESE RESPONDENTS BY THE DISTRICT COURT.  REVERSED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, CONCURRING. 

I AGREE THAT THE TVA HAS AUTHORITY TO CONDEMN THE TRACTS OF LAND
WHICH THE AUTHORITY SEEKS TO ACQUIRE BY THESE PROCEEDINGS. 

THIS AUTHORITY FLOWS FROM THE POWER OF EMINENT DOMAIN GRANTED BY
SECS. 4 AND 25 OF THE TENNESSEE VALLEY AUTHORITY ACT, 48 STAT. 58, AS
AMENDED.  THE GRANT WHICH ALLOWS CONDEMNATION OF ALL PROPERTY THAT THE
AUTHORITY "DEEMS NECESSARY FOR CARRYING OUT THE PURPOSES OF THIS ACT,"
IS IN SUFFICIENTLY BROAD TERMS, IT SEEMS TO ME, TO JUSTIFY THESE
CONDEMNATIONS.  WHEN THE AUTHORITY WAS FACED WITH THE PROBLEM OF JUSTLY
COMPENSATING THE OCCUPANTS OF THE FORTY-FOUR THOUSAND ACRE AREA BETWEEN
THE FONTANA DAM LAKE AND THE GREAT SMOKY MOUNTAINS NATIONAL PARK, NORTH
CAROLINA AND SWAIN COUNTY FOR THE DESTRUCTION OF HIGHWAY NO. 288, IT
COULD WITHIN ITS DELEGATED POWERS PURCHASE OR CONDEMN THE LANDS
AFFECTED OR BUILD A SUBSTITUTE HIGHWAY WHICHEVER APPEARED CHEAPER.  THE
UNITED STATES IS NOT BARRED FROM THE EXERCISE OF GOOD BUSINESS JUDGMENT
IN ITS CONSTRUCTION WORK.  BROWN V. UNITED STATES, 263 U.S. 78.  SEE
UNITED STATES V. MEYER, 113 F.2D 387; OLD DOMINION LAND CO. V. UNITED
STATES, 296 F. 20, 269 U.S. 55, 66.  SUCH ACTION IS NOT "OUTSIDE LAND
SPECULATION."  263 U.S. AT 84.  IT FOLLOWS THAT HAVING THIS POWER, THE
AUTHORITY COULD CONTRACT, AS IT DID, TO REDUCE ITS EXPENDITURES BY THE
CONTRACT ARRANGEMENTS OF JULY 30, 1943, WITH SWAIN COUNTY AND NORTH
CAROLINA.  WITH THE AUTHORITY'S POWER TO TURN OVER ITS LANDS TO THE
NATIONAL PARK, WE ARE NOT HERE CONCERNED.  UNDER THE CONTRACT THE
PUBLIC RIGHTS IN HIGHWAY NO. 288 WERE ACQUIRED BY THE AUTHORITY AND IT
AGREED TO ACQUIRE THE LANDS HERE IN CONTROVERSY.  THE ACQUISITION OF
THE WHOLE AREA WAS A FACTOR IN THESE ARRANGEMENTS AND THE CONDEMNATION
OF THESE SMALLER TRACTS IS A PART OF THE TRANSACTION. 

I DO NOT JOIN IN THE OPINION OF THE COURT BECAUSE OF CERTAIN
LANGUAGE, ANTE, PP. 551-554, WHICH IMPLIES TO ME THAT THERE IS NO
JUDICIAL REVIEW OF THE AUTHORITY'S DETERMINATION THAT ACQUISITION OF
THESE ISOLATED PIECES OF PRIVATE PROPERTY IS WITHIN THE PURPOSES OF THE
TVA ACT.  THE COURT SEEMS TO ACCEPT THE AUTHORITY'S ARGUMENT THAT A
GOOD FAITH DETERMINATION BY IT THAT PROPERTY IS NECESSARY FOR THE
PURPOSES OF THE ACT BARS JUDICIAL REVIEW AS TO WHETHER THE PROPOSED USE
WILL BE WITHIN THE STATUTORY LIMITS.  THIS ARGUMENT OF LACK OF JUDICIAL
POWER PROPERLY WAS REJECTED BY THE CIRCUIT COURT OF APPEALS ALTHOUGH,
AS EXPLAINED ABOVE, I THINK THAT COURT ERRONEOUSLY HELD THAT THE TVA
ACT DID NOT AUTHORIZE THESE CONDEMNATIONS.  150 F.2D 613, 616.  IT IS
MY OPINION THAT THE TVA IS A CREATURE OF ITS STATUTE AND BOUND BY THE
TERMS OF THAT STATUTE, AND THAT ITS EVERY ACT MAY BE TESTED JUDICIALLY,
BY ANY PARTY WITH STANDING TO DO SO, TO DETERMINE WHETHER IT MOVES
WITHIN THE AUTHORITY GRANTED TO IT BY CONGRESS.  SCHOOL OF MAGNETIC
HEALING V. MCANNULTY, 187 U.S. 94; SOCIAL SECURITY BOARD V. NIEROTKO,
327 U.S. 358, 369. 

THIS TAKING IS FOR A PUBLIC PURPOSE BUT WHETHER IT IS OR IS NOT IS A
JUDICIAL QUESTION.  OF COURSE, THE LEGISLATIVE OR ADMINISTRATIVE
DETERMINATION HAS GREAT WEIGHT BUT THE CONSTITUTIONAL DOCTRINE OF THE
SEPARATION OF POWERS WOULD BE UNDULY RESTRICTED IF AN ADMINISTRATIVE
AGENCY COULD INVOKE A SO-CALLED POLITICAL POWER SO AS TO IMMUNIZE ITS
ACTION AGAINST JUDICIAL EXAMINATION IN CONTESTS BETWEEN THE AGENCY AND
THE CITIZEN.  THE FORMER CASES GO NO FURTHER THAN THIS.  UNITED STATES
V. GETTYSBURG ELECTRIC R. CO., 160 U.S. 668, 680; RINDGE CO. V. LOS
ANGELES, 262 U.S. 700, 709; OLD DOMINION LAND CO. V. UNITED STATES, 269
U.S. 55, 66; CINCINNATI V. VESTER, 281 U.S. 439, 446. 

ONCE IT IS ADMITTED OR JUDICIALLY DETERMINED THAT A PROPOSED
CONDEMNATION IS FOR A PUBLIC PURPOSE AND WITHIN THE STATUTORY
AUTHORITY, A POLITICAL OR JUDICIALLY NON-REVIEWABLE QUESTION MAY
EMERGE, TO WIT, THE NECESSITY OR EXPEDIENCY OF THE CONDEMNATION OF THE
PARTICULAR PROPERTY.  THESE ARE THE CASES THAT LED THE TVA, ERRONEOUSLY
IN MY VIEW, TO ASSERT THE ACTION OF ITS BOARD COULD "NOT BE SET ASIDE
BY A COURT."  ADIRONDACK R. CO. V. NEW YORK, 176 U.S. 335, 349; BRAGG
V. WEAVER, 251 U.S. 57, 58; JOSLIN CO. V. PROVIDENCE, 262 U.S. 668,
678; RINDGE CO. V. LOS ANGELES, 262 U.S. 700, 708. 

THE CHIEF JUSTICE JOINS IN THIS OPINION. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I JOIN IN THE OPINION OF THE COURT FOR I DO NOT READ IT AS DOES MY
BROTHER REED.  THE BILL OF RIGHTS PROVIDES THAT PRIVATE PROPERTY SHALL
NOT "BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION."  U.S. CONST.,
AMEND. V. THIS COURT HAS NEVER DEVIATED FROM THE VIEW THAT UNDER THE
CONSTITUTION A CLAIM THAT A TAKING IS NOT "FOR PUBLIC USE" IS OPEN FOR
JUDICIAL CONSIDERATION, ULTIMATELY BY THIS COURT.  IT IS EQUALLY TRUE
THAT IN THE NUMEROUS CASES IN WHICH THE ISSUE WAS ADJUDICATED, THIS
COURT NEVER FOUND THAT THE LEGISLATIVE DETERMINATION THAT THE USE WAS
"PUBLIC" EXCEEDED CONSTITUTIONAL BOUNDS.  BUT THE FACT THAT THE NATURE
OF THE SUBJECT MATTER GIVES THE LEGISLATIVE DETERMINATION NEARLY
IMMUNITY FROM JUDICIAL REVIEW DOES NOT MEAN THAT THE POWER TO REVIEW IS
WANTING.  ALL THE CASES CITED IN THE COURT'S OPINION SUSTAINING A
TAKING RECOGNIZE AND ACCEPT THE POWER OF JUDICIAL REVIEW.  I ASSUME
THAT IN CITING THESE CASES THE COURT AGAIN RECOGNIZES THE DOCTRINE THAT
WHETHER A TAKING IS FOR A PUBLIC PURPOSE IS NOT A QUESTION BEYOND
JUDICIAL COMPETENCE. 
..END :














S.R.A., INC. V. MINNESOTA, 327 U.S. 558 


NOS. 254 AND 255.  ARGUED JANUARY 3, 1946.  - DECIDED MARCH 25, 1946.  -
219 MINN. 493, 517 - 18 N.W.2D 442, 455, AFFIRMED. 


REAL ESTATE, WHICH HAD BEEN ACQUIRED BY THE UNITED STATES FOR PUBLIC
PURPOSES WITH THE CONSENT OF A STATE AND OVER WHICH THE UNITED STATES
HAD EXERCISED EXCLUSIVE LEGISLATIVE JURISDICTION PURSUANT TO ART. I,
SEC. 8, CL. 17 OF THE CONSTITUTION, WAS SOLD TO A PRIVATE PARTY UNDER A
CONTRACT OF SALE GIVING THE PURCHASER POSSESSION BUT RETAINING LEGAL
TITLE IN THE UNITED STATES UNTIL PAYMENT OF THE BALANCE OF THE PURCHASE
PRICE IN INSTALLMENTS.  THE CONTRACT CONTAINED NO EXPRESS PROVISION
RETAINING SOVEREIGNTY IN THE UNITED STATES; THERE WAS NO EXPRESS
RETROCESSION BY CONGRESS TO THE STATE; AND THE ORIGINAL ACT OF CESSION
CONTAINED NO REQUIREMENT FOR RETURN OF SOVEREIGNTY TO THE STATE WHEN
THE PROPERTY WAS NO LONGER USED FOR FEDERAL PURPOSES.  WHILE MUCH OF
THE PURCHASE PRICE WAS STILL NOT DUE AND UNPAID, THE STATE LEVIED TAXES
ON THE PROPERTY "SUBJECT TO FEE TITLE REMAINING IN THE UNITED STATES." 
UNDER THE STATE LAW, AS CONSTRUED BY THE SUPREME COURT OF THE STATE,
THE EQUITABLE INTEREST ALONE COULD BE SOLD FOR TAXES, LEAVING THE FEE
OF THE UNITED STATES IN ITS POSITION OF PRIORITY OVER ANY INTERESTS
WHICH MIGHT BE TRANSFERRED BY THE TAX SALE.  HELD: 

1.  THE CONTRACT TRANSFERRED THE EQUITY IN THE LAND TO THE PURCHASER,
LEAVING IN THE UNITED STATES ONLY A LEGAL TITLE AS SECURITY - THE
EQUIVALENT OF A MORTGAGE.  PP. 565, 569. 

2.  WHEN THE PURCHASER TOOK POSSESSION OF THE PROPERTY, IT BECAME
SUBJECT TO THE TERRITORIAL JURISDICTION OF THE STATE.  P. 565. 

3.  THE CONSTRUCTION BY THE STATE SUPREME COURT OF THE LAW OF THE
STATE AS TO THE EFFECT OF A TAX SALE OF THE PURCHASER'S INTEREST ON THE
INTEREST OF THE UNITED STATES IS BINDING ON THIS COURT.  P. 565. 

4.  THE PROPERTY IS NOT IMMUNE FROM TAXATION BY THE STATE.  VAN
BROCKLIN V. TENNESSEE, 117 U.S. 151, DISTINGUISHED; NEW BRUNSWICK V.
UNITED STATES, 276 U.S. 547, FOLLOWED.  PP. 566-569. 

5.  THE TAX IS NOT INVALIDATED BY THE INCLUSION OF THE INTEREST OF
THE UNITED STATES IN THE VALUATION OF THE LAND, SINCE ITS INTEREST IS
FOR SECURITY PURPOSES ONLY AND IS NOT BENEFICIAL IN NATURE.  P. 570. 

S.R.A., INC. V. MINNESOTA. 

CERTIORARI TO THE SUPREME COURT OF MINNESOTA. 

MINNESOTA LEVIED TAXES ON CERTAIN REAL ESTATE UNDER CONTRACT OF SALE
FROM THE UNITED STATES TO A PRIVATE PARTY, THE LEGAL TITLE BEING IN THE
UNITED STATES; BUT THE ASSESSMENT WAS EXPRESSLY MADE "SUBJECT TO FEE
TITLE REMAINING IN THE UNITED STATES."  A STATE TRIAL COURT HELD THAT
THE PROPERTY WAS EXEMPT FROM STATE TAXATION.  THE SUPREME COURT OF
MINNESOTA REVERSED THE JUDGMENT.  IN RE S.R.A., INC., 213 MINN. 487, 7
N.W.2D 484.  ON RETRIAL, THE LOWER COURT HELD THE PROPERTY LIABLE FOR
THE TAX AND DECLARED A LIEN "UPON SUCH PARCEL OF LAND AS AGAINST THE
ESTATE, RIGHT, TITLE, INTEREST, CLAIM, OR LIEN, OF WHATEVER NATURE, IN
LAW OR EQUITY, OF EVERY PERSON, COMPANY, OR CORPORATION, SUBJECT
HOWEVER, TO THE PRIOR RIGHTS, LIENS AND INTERESTS OF THE UNITED STATES
OF AMERICA."  THIS JUDGMENT WAS AFFIRMED ON APPEAL.  IN RE S.R.A.,
INC., 219 MINN. 493, 517, 18 N.W.2D 442, 455.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 703.  AFFIRMED, P. 570. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

A QUESTION AS TO THE POWER OF THE STATE OF MINNESOTA TO TAX REALTY
WITHIN THE BOUNDARIES OF THAT STATE, WHEN THE LEGAL TITLE REMAINS IN
THE UNITED STATES, IS PRESENTED BY THIS WRIT OF CERTIORARI.  FN1  THE
STATE CEDED JURISDICTION OVER THE REALTY IN ACCORDANCE WITH THE
EXCLUSIVE LEGISLATION CLAUSE OF THE UNITED STATES CONSTITUTION, ARTICLE
I, SEC. 8, CLAUSE 17. 

THE REALTY IN QUESTION WAS CONVEYED TO THE UNITED STATES IN 1867 AS A
SITE FOR A BUILDING TO HOUSE A POST OFFICE, A CUSTOMS OFFICE AND
OFFICES FOR VARIOUS DEPARTMENTS AND AGENCIES OF THE UNITED STATES.  THE
BUILDING WAS EVENTUALLY VACATED AND THE PROPERTY SOLD IN 1939 BY THE
DIRECTOR OF PROCUREMENT OF THE DEPARTMENT OF THE TREASURY UNDER THE
AUTHORITY OF AN ACT FOR THE DISPOSAL OF SURPLUS FEDERAL REAL ESTATE. 
49 STAT. 885. 

IT WAS PURCHASED ON PUBLIC SALE AND IMPROVED BY PETITIONER WHO WAS IN
FULL POSSESSION WITH RIGHT OF USER UNDER AN EXECUTORY CONTRACT OF SALE
BETWEEN IT AND THE UNITED STATES AT THE TIME OF THE LEVY OF THE TAX. 
THAT CONTRACT PROVIDED FOR A CASH PAYMENT AND ANNUAL INSTALMENTS,
POSSESSION BY PETITIONER SO LONG AS IT MET THE TERMS OF THE CONTRACT,
AND FOR REPOSSESSION BY THE UNITED STATES, WITH RETENTION OF PRIOR
INSTALMENTS OF THE PURCHASE PRICE, UPON THE PURCHASER'S FAILURE TO
COMPLY WITH ANY TERM OR CONDITION OF THE CONTRACT.  UPON REPOSSESSION,
THE UNITED STATES WAS AUTHORIZED TO RESELL THE REALTY AND RECOVER ANY
RESULTING DEFICIENCY FROM THE PETITIONER.  ALL OBLIGATIONS DUE UNDER
THE CONTRACT HAD BEEN MET.  THE MAJOR PORTION OF THE CONTRACT PRICE HAD
NOT FALLEN DUE AND WAS UNPAID.  THE CONTRACT PERMITTED LEASES TO OTHERS
IN SUBORDINATION TO THE RIGHTS OF THE UNITED STATES.  THE CONTRACT
REQUIRED THE UNITED STATES TO EXECUTE AND DELIVER A QUIT CLAIM DEED FOR
THE REALTY TO THE PETITIONER UPON ITS COMPLETION OF THE REQUIREMENTS OF
THE CONTRACT. 

WITH THE OWNERSHIP OF THE PROPERTY IN THE SITUATION JUST DESCRIBED,
TAXES FOR GENERAL AND SPECIAL PURPOSES WERE LEVIED ON THE PROPERTY FOR
1940 UNDER THE USUAL MINNESOTA PROCEDURE.  THE TAX WAS STATED IN THE
ASSESSMENT TO BE ON THE REALTY "SUBJECT TO FEE TITLE REMAINING IN THE
UNITED STATES OF AMERICA."  PETITIONER DULY FILED ITS OBJECTIONS IN THE
PROPER STATE DISTRICT COURT, PURSUANT TO STATUTE.  1 MINN. STAT. (1941)
CH. 278.  SO FAR AS CONCERNS THIS REVIEW, THE OBJECTION TO THE TAX WAS
BASED ON A CLAIMED EXEMPTION OF THE REALTY FROM STATE TAXATION BECAUSE
TITLE TO ALL OF THE PREMISES WAS IN THE UNITED STATES.  THE EXEMPTION
WAS SUSTAINED BY THE TRIAL COURT.  THE SUPREME COURT OF MINNESOTA
REVERSED THAT JUDGMENT AND DENIED EXEMPTION.  IN RE S.R.A., INC., 213
MINN. 487, 7 N.W.2D 484.  ON RETRIAL, THE LOWER COURT HELD THE REALTY
LIABLE FOR THE TAX AND DECLARED A LIEN "UPON SUCH PARCEL OF LAND AS
AGAINST THE ESTATE, RIGHT, TITLE, INTEREST, CLAIM, OR LIEN, OF WHATEVER
NATURE, IN LAW OR EQUITY, OF EVERY PERSON, COMPANY, OR CORPORATION,
SUBJECT HOWEVER, TO THE PRIOR RIGHTS, LIENS AND INTERESTS OF THE UNITED
STATES OF AMERICA  ..."  THIS SECOND JUDGMENT WAS AFFIRMED ON APPEAL. 
IN RE S.R.A., INC., 219 MINN. 493, 18 N.W.2D 442. 

CERTIORARI WAS SOUGHT UNDER SEC. 237(B) OF THE JUDICIAL CODE.  IT WAS
GRANTED BECAUSE OF THE IMPORTANCE AND UNCERTAINTY OF THE QUESTION OF
THE RIGHT OF A STATE TO TAX REALTY SOLD BY THE UNITED STATES IN
POSSESSION OF A BUYER FROM THE GOVERNMENT UNDER A CONTRACT OF SALE WITH
UNCOMPLETED CONDITIONS FOR EXECUTION AND DELIVERY OF THE MUNIMENTS OF
TITLE.  326 U.S. 703.  FN2 

THE SUPREMACY OF THE FEDERAL GOVERNMENT IN OUR UNION FORBIDS THE
ACKNOWLEDGMENT OF THE POWER OF ANY STATE TO TAX PROPERTY OF THE UNITED
STATES AGAINST ITS WILL.  UNDER AN IMPLIED CONSTITUTIONAL IMMUNITY, ITS
PROPERTY AND OPERATIONS MUST BE EXEMPT FROM STATE CONTROL IN TAX, AS IN
OTHER MATTERS.  M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 425, ET SEQ.; VAN
BROCKLIN V. TENNESSEE, 117 U.S. 151, 177; UNITED STATES V. ALLEGHENY
COUNTY, 322 U.S. 174, 176-77.  THIS POSTULATE, AS A MATTER OF FEDERAL
LAW, FORCES FINAL DECISION OF THE VALIDITY OF CLAIMED EXEMPTIONS UNDER
THIS IMMUNITY UPON THIS COURT.  UNITED STATES V. ALLEGHENY COUNTY,
SUPRA, 183, AND CASES CITED.  THE IMPACT OF STATE TAXATION ON FEDERAL
OPERATIONS MAY BE SO CLOSE AND THREATENING AS TO COMPEL JUDICIAL
INTERVENTION TO DECLARE THE STATE TAX INVALID, AS IN THE M'CULLOCH
CASE, OR SO REMOTE AND INCIDENTAL AS TO JUSTIFY A FEDERAL COURT IN
REFUSING TO RELIEVE A TAXPAYER FROM A STATE TAX.  ALABAMA V. KING &
BOOZER, 314 U.S. 1.  THE LINE OF TAXABILITY IS SOMEWHAT IRREGULAR AND
HAS VARIED THROUGH THE YEARS.  FN3 

THE RIGHT OF A STATE TO TAX REALTY DIRECTLY DEPENDS PRIMARILY UPON
ITS TERRITORIAL JURISDICTION OVER THE AREA.  THE REALTY OF PETITIONER
HAD BEEN CONVEYED TO AND USED BY THE UNITED STATES FOR THE ESSENTIAL
GOVERNMENTAL ACTIVITIES WHICH AUTHORIZED THE EXERCISE OF ITS EXCLUSIVE
LEGISLATIVE JURISDICTION.  FN4  EXCLUSIVE LEGISLATIVE POWER IS IN
ESSENCE COMPLETE SOVEREIGNTY.  FN5  THAT IS, NOT ONLY IS THE FEDERAL
PROPERTY IMMUNE FROM TAXATION BECAUSE OF THE SUPREMACY OF THE FEDERAL
GOVERNMENT BUT STATE LAWS, NOT ADOPTED DIRECTLY OR IMPLIEDLY BY THE
UNITED STATES, ARE INEFFECTIVE TO TAX OR REGULATE OTHER PROPERTY OR
PERSONS UPON THAT ENCLAVE.  FN6  IT WOULD SEEM THAT THE UNITED STATES
OBTAINED THIS PROPERTY IN COMPLIANCE WITH CESSION BY MINNESOTA OF
EXCLUSIVE SOVEREIGNTY.  ACT OF FEBRUARY 9, 1867, MINN. LAWS 1867 JAN.,
CH. LXXIX.  THE ACCEPTANCE BY THE UNITED STATES AT THAT TIME OF THE
POWER CEDED IS PRESUMED.  FN7  THIS COURT APPARENTLY HAS NEVER DIRECTLY
PASSED UPON THE EFFECT ON FEDERAL SOVEREIGNTY OF THE PROPERTY'S
TRANSFER BY THE UNITED STATES TO PRIVATE HANDS. 

IN THIS INSTANCE THERE WERE NO SPECIFIC WORDS IN THE CONTRACT WITH
PETITIONER WHICH WERE INTENDED TO RETAIN SOVEREIGNTY IN THE UNITED
STATES.  THERE WAS NO EXPRESS RETROCESSION BY CONGRESS TO MINNESOTA,
SUCH AS SOMETIMES OCCURS.  FN8  THERE WAS NO REQUIREMENT IN THE ACT OF
CESSION FOR RETURN OF SOVEREIGNTY TO THE STATE WHEN THE CEDED TERRITORY
WAS NO LONGER USED FOR FEDERAL PURPOSES.  FN9  IN THE ABSENCE OF SOME
SUCH PROVISIONS, A TRANSFER OF PROPERTY HELD BY THE UNITED STATES UNDER
STATE CESSIONS PURSUANT TO ARTICLE I, SEC. 8, CLAUSE 17, OF THE
CONSTITUTION WOULD LEAVE NUMEROUS ISOLATED ISLANDS OF FEDERAL
JURISDICTION, UNLESS THE UNRESTRICTED TRANSFER OF THE PROPERTY TO
PRIVATE HANDS IS THOUGHT WITHOUT MORE TO REVEST SOVEREIGNTY IN THE
STATES.  AS THE PURPOSE OF CLAUSE 17 WAS TO GIVE CONTROL OVER THE SITES
OF GOVERNMENTAL OPERATIONS TO THE UNITED STATES, WHEN SUCH CONTROL WAS
DEEMED ESSENTIAL FOR FEDERAL ACTIVITIES, IT WOULD SEEM THAT THE
SOVEREIGNTY OF THE UNITED STATES WOULD END WITH THE REASON FOR ITS
EXISTENCE AND THE DISPOSITION OF THE PROPERTY.  WE SHALL TREAT THIS
CASE AS THOUGH THE GOVERNMENT'S UNRESTRICTED TRANSFER OF PROPERTY TO
NONFEDERAL HANDS IS A RELINQUISHMENT OF THE EXCLUSIVE LEGISLATIVE
POWER.  FN10 RECOGNITION HAS BEEN GIVEN TO THIS RESULT AS A RULE OF
NECESSITY.  FN11  IF SUCH A STEP IS NECESSARY, MINNESOTA SHOWED ITS
ACCEPTANCE OF A SUPPOSED RETROCESSION BY ITS LEVY OF A TAX ON THE
PROPERTY.  UNDER THESE ASSUMPTIONS THE EXISTENCE OF TERRITORIAL
JURISDICTION IN MINNESOTA SO AS TO PERMIT STATE TAXATION DEPENDS UPON
WHETHER THERE WAS A TRANSFER OF THE PROPERTY BY THE CONTRACT OF SALE. 

IN DETERMINING THE MEANING AND EFFECT OF CONTRACTS TO WHICH THE
UNITED STATES IS A PARTY, THE GOVERNING RULES OF LAW MUST BE FINALLY
DECLARED BY THIS COURT.  UNITED STATES V. ALLEGHENY COUNTY, SUPRA,
183.  TURNING TO THE CONTRACT, WE FIND IN IT NO CHARACTERISTICS WHICH
DIFFERENTIATE IT FROM THE NORMAL EXECUTORY CONTRACT FOR THE SALE OF
LAND WITH PARTIAL PAYMENTS.  NORMALLY, CONTRACTS BETWEEN THE UNITED
STATES AND OTHERS ARE CONSTRUED AS CONTRACTS BETWEEN PRIVATE PARTIES. 
LYNCH V. UNITED STATES, 292 U.S. 571, 579.  THIS COURT HAS BEEN OF THE
OPINION THAT CONTRACTS FOR THE SALE OF LAND TRANSFER TO THE PURCHASER
THE EQUITY IN THE LAND.  WE THINK THIS CONTRACT DID SO. THAT EQUITY IS
REALTY.  IT WAS OWNED BY THE VENDEE.  THE UNITED STATES RETAINS ONLY A
LEGAL TITLE AS SECURITY.  IN SUBSTANCE IT IS IN THE POSITION OF A
MORTGAGEE.  FN12  MINNESOTA HAS THE SAME RULE.  IN RE S.R.A., INC., 219
MINN. 493, 507; 213 MINN. 487, 495, 499.  THEREFORE WHEN PETITIONER
ENTERED INTO POSSESSION OF THIS REAL ESTATE UNDER ITS CONTRACT OF
PURCHASE, THE TAXED PROPERTY BY THE TRANSFER BECAME SUBJECT TO THE
TERRITORIAL JURISDICTION OF MINNESOTA.  FN13 

TERRITORIAL JURISDICTION IN MINNESOTA DOES NOT DISPOSE OF THIS TAX
PROBLEM.  THE NUB OF THIS CASE, THAT IS THE IMMUNITY FROM STATE
TAXATION OF PROPERTY TO WHICH THE UNITED STATES HOLDS LEGAL TITLE,
REMAINS.  MINNESOTA TOOK CARE TO LEAVE UNASSESSED WHATEVER INTEREST THE
UNITED STATES HOLDS.  THE LEVY AND JUDGMENT WAS "SUBJECT TO FEE TITLE
REMAINING IN THE UNITED STATES OF AMERICA."  219 MINN. AT 496. 
ALTHOUGH MINNESOTA REAL ESTATE TAXES ARE ASSESSED ON THE PARCEL OF LAND
AS A "UNITARY ITEM" INCLUDING "ALL RIGHTS AND PRIVILEGES," THE STATE
DOES NOT CLAIM THAT A TAX SALE WILL DIVEST THE FEE TITLE OF THE UNITED
STATES.  213 MINN. AT 493, 499.  APPARENTLY THE STATE IS OF THE VIEW
THAT THE EQUITABLE INTEREST ALONE MAY BE SOLD UNDER ITS LAWS, LEAVING
THE FEE OF THE UNITED STATES IN ITS POSITION OF PRIORITY OVER ANY
INTERESTS WHICH MAY BE TRANSFERRED BY THE TAX SALE.  219 MINN. AT 513. 
SUCH A CONSTRUCTION OF THE STATE LAW IS BINDING UPON THIS COURT.  IT
DOES NOT IMPINGE UPON FEDERAL RIGHTS.  SO LONG AS THAT SITUATION
EXISTS, THE DETERMINATION OF THE STATE CANNOT BE CHALLENGED HERE.  THE
POSSIBILITY OF REPOSSESSION BY THE UNITED STATES IS NOT ENOUGH TO BLOCK
A TAX SALE IN WHICH THE PARAMOUNT RIGHTS OF THE UNITED STATES ARE
PROTECTED.  BALTIMORE SHIPBUILDING CO. V. BALTIMORE, 195 U.S. 375, 381
82; NEW BRUNSWICK V. UNITED STATES, 276 U.S. 547, 556; UNITED STATES V.
ALABAMA, 313 U.S. 274, 282.  FN14 

PETITIONER'S ARGUMENT GOES BEYOND THE QUESTION OF THE ENFORCEMENT OF
THE ASSESSED TAX.  IT IS BOTTOMED ON THE IMPLIED CONSTITUTIONAL
IMMUNITY FROM STATE TAXATION OF PROPERTY FOR WHICH THE UNITED STATES
HOLDS TITLE SUBJECT TO UNFULFILLED CONDITIONS.  IN VAN BROCKLIN V.
TENNESSEE, 117 U.S. 151, THAT STATE SOUGHT TO TAX REALTY OF THE UNITED
STATES WHICH WAS NOT HELD FOR THE PURPOSES OR UNDER THE AUTHORITY OF
THE CESSION CLAUSE.  CERTAIN LOTS HAD BEEN PURCHASED BY AND CONVEYED TO
THE UNITED STATES PURSUANT TO A FEDERAL TAX SALE.  12 STAT. 423, SEC.
7.  THESE LOTS WERE LATER TRANSFERRED BY DEED OR CERTIFICATE OF RELEASE
TO PRIVATE OWNERS.  17 STAT. 330; 18 STAT. 313.  TENNESSEE ASSESSED ITS
OWN TAXES UPON THE ENTIRE PROPERTY FOR THE YEARS DURING WHICH TITLE TO
THE LOTS WAS IN THE UNITED STATES AND ATTEMPTED TO COLLECT THEM FROM
THE PRIVATE OWNERS AFTER THE TRANSFER.  TENNESSEE'S CLAIM WAS FOUNDED
ON THE ABSENCE OF STATE CESSION.  THIS COURT REFUSED TO PERMIT THE
STATE'S ACTION, SAYING AT PAGE 179: 

"WHILE THE UNITED STATES OWNED THE LAND STRUCK OFF TO THEM FOR THE
AMOUNT OF THE TAXES BECAUSE NO ONE WOULD PAY MORE FOR IT, AND UNTIL IT
WAS SOLD BY THE UNITED STATES FOR A GREATER PRICE, OR WAS REDEEMED BY
THE FORMER OWNER, THE UNITED STATES HELD THE ENTIRE TITLE AS SECURITY
FOR THE PAYMENT OF THE TAXES; AND IT COULD NOT BE KNOWN HOW MUCH, IF
ANYTHING, BEYOND THE AMOUNT OF THE TAXES THE LAND WAS WORTH.  TO ALLOW
LAND, LAWFULLY HELD BY THE UNITED STATES AS SECURITY FOR THE PAYMENT OF
TAXES ASSESSED BY AND DUE TO THEM, TO BE ASSESSED AND SOLD FOR STATE
TAXES WOULD TEND TO CREATE A CONFLICT BETWEEN THE OFFICERS OF THE TWO
GOVERNMENTS, TO DEPRIVE THE UNITED STATES OF A TITLE LAWFULLY ACQUIRED
UNDER EXPRESS ACTS OF CONGRESS, AND TO DEFEAT THE EXERCISE OF THE
CONSTITUTIONAL POWER TO LAY AND COLLECT TAXES, TO PAY THE DEBTS AND
PROVIDE FOR THE COMMON DEFENCE AND GENERAL WELFARE OF THE UNITED
STATES." 

THE POSTURE OF THE LAND SOUGHT TO BE TAXED IN THE VAN BROCKLIN CASE
DIFFERENTIATES IT FROM THAT PRESENTLY UNDER CONSIDERATION.  THE UNITED
STATES THERE HELD COMPLETE TITLE UPON THE ASSESSMENT DATES AS A
PURCHASER AT A TAX SALE.  THE ENTIRE BUNDLE OF RIGHTS IN THE PROPERTY
WAS ASSESSED BY TENNESSEE.  AS A MATTER OF GRACE, THE UNITED STATES HAD
GRANTED A RIGHT TO THE TAXPAYER TO REDEEM.  IT WAS LIKE AN OPTION TO
PURCHASE.  THE STATUTE MIGHT HAVE AUTHORIZED THE SALE OF THE LAND TO
ANY PURCHASER WITHOUT CONSIDERATION FOR THE FORMER OWNER.  THE UNITED
STATES, HERE, AS WE HAVE DEMONSTRATED ABOVE, HAD TRANSFERRED AT THE
TIME OF THE ASSESSMENT EQUITABLE OWNERSHIP TO THE PURCHASER AND HAS
ONLY A LEGAL TITLE AS SECURITY FOR THE UNPAID PURCHASE PRICE.  SEE
UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, 188.    PETITIONER
PRESSES VARIOUS LAND GRANT CASES UPON US AS ANNOUNCING THE CONTROLLING
RULE.  FN15 THE PRINCIPLE WHICH PETITIONER EXTRACTS FROM THESE CASES IS
THAT ALIENATION OF UNITED STATES PROPERTY DOES NOT PASS AN INTEREST TO
THE VENDEE TAXABLE BY A STATE UNTIL ALL CONDITIONS PRECEDENT FOR THE
DELIVERY OF THE DEED HAVE BEEN COMPLIED WITH.  IN THE PRESENT CASE,
PETITIONER ASSERTS, THE FULL AMOUNT OF THE PURCHASE PRICE MUST BE PAID
BEFORE THE STATE CAN TAX.  SUCH A RULE CAN BE EXTRACTED BY THE LITERAL
READING OF CERTAIN PHRASES IN THE LAND GRANT CASES.  FN16  THE REASON
FOR THE RULE WAS SAID, IN THE EARLIER CASES, TO BE THAT A STATE TAX
SALE WOULD DEFEAT THE GOVERNMENT LIEN FOR SURVEYING OR OTHER COSTS
BECAUSE THE STATE SALE WOULD PASS A TITLE FREE FROM LIEN OF THE UNITED
STATES.  FN17  AS HERETOFORE SHOWN, ANTE, P. 565, THIS GROUND FOR
REFUSING POWER TO MINNESOTA TO TAX IS NOT PRESENT IN THIS CASE, SINCE
MINNESOTA HOLDS THAT THE LIEN OF THE UNITED STATES WILL REMAIN
PARAMOUNT. 

IRWIN V. WRIGHT INVOLVED THE TAXABILITY BY A STATE OF PROPERTY
OCCUPIED BY AN ENTRYMAN UNDER THE RECLAMATION AND HOMESTEAD ACTS WHO
HAD NOT RECEIVED HIS REQUIRED FINAL CERTIFICATE OF LAND CLEARANCE,
PAGES 227, 228, 232.  THE REASON FOR THE RULE AGAINST STATE TAXATION
UNTIL THE EQUITABLE TITLE PASSES FROM THE UNITED STATES TO THE ENTRYMAN
WAS THERE PLACED UPON THE POLICY OF THE GOVERNMENT TO REQUIRE THOSE WHO
SOUGHT GOVERNMENT LAND TO PERFORM THE REQUIRED CONDITIONS OF RESIDENCE
OR IMPROVEMENT BEFORE BENEFICIAL TITLE, SUBJECT TO STATE TAXATION,
PASSES FROM THE UNITED STATES TO THE LOCATOR.  THIS TRANSFER WAS SAID
NOT TO TAKE PLACE UNTIL THE CERTIFICATE WAS ISSUED.  PAGE 232.  THE
PROHIBITION OF STATE TAXATION UNTIL THE CERTIFICATE WAS ISSUED WAS ONE
OF THE MEANS BY WHICH THE GOVERNMENT FURTHERED ITS PUBLIC POLICY OF
LAND SETTLEMENT.  AFTER COMPLIANCE WITH THE CONDITION AND BEFORE
PATENT, THE STATE COULD TAX.  FN18 

WE THINK THE PUBLIC POLICY OF NATIONAL DEVELOPMENT AND FEDERAL TAX
COLLECTION JUSTIFY THE LIMITATION ON STATE TAXING POWER ANNOUNCED BY
THE FOREGOING DECISIONS.  WE DO NOT, HOWEVER, CONCLUDE THAT THEIR
RATIONALE LEADS TO AN EXEMPTION FROM STATE TAXATION OF ALL LANDS IN
WHICH THE UNITED STATES HOLDS LEGAL TITLE AS SECURITY FOR THE PURCHASE
PRICE.  TO SAY THAT THE PAYMENT OF THE PURCHASE PRICE IS A NECESSARY
CONDITION PRECEDENT TO THE LOSS OF FEDERAL IMMUNITY IS TO MAKE THE RULE
TOO MECHANICAL.  IT SHOULD BE SUFFICIENTLY FLEXIBLE TO SUBJECT REAL
PRIVATE RIGHTS, DISENTANGLED FROM FEDERAL POLICIES, TO STATE TAXATION. 
THIS HAS BEEN THE HOLDING IN MINING CLAIMS.  FN19  WHERE BENEFICIAL
INTEREST HAS PASSED TO A VENDEE, THE RETENTION OF LEGAL TITLE DOES NOT
GIVE A SIGNIFICANT DIFFERENCE FROM THE SITUATION OF A DEED WITH A LIEN
RETAINED OR A MORTGAGE BACK TO SECURE THE PURCHASE MONEY. 

THAT WAS THE INTERPRETATION GIVEN THE FACTS IN NEW BRUNSWICK V.
UNITED STATES, 276 U.S. 547.  FN20  THE CITY OF NEW BRUNSWICK, UNDER
AUTHORITY OF NEW JERSEY, SOUGHT TO TAX LOTS IN THE POSSESSION OF
PURCHASERS FROM THE HOUSING CORPORATION, A CORPORATION WHOLLY OWNED BY
THE UNITED STATES AND THEREFORE TREATED AS THE UNITED STATES.  THESE
PURCHASERS HAD PAID ENOUGH OF THE PURCHASE PRICE - TEN PER CENT - TO
ENTITLE THEM TO DEEDS UNDER THEIR CONTRACTS BUT HAD NOT PAID THE ENTIRE
PURCHASE PRICE.  THE DEEDS HAD NOT BEEN DELIVERED NOR THE MORTGAGES
EXECUTED FOR THE BALANCE AS REQUIRED BY THE PURCHASE AGREEMENT.  THIS
COURT SAID:  "IN EQUITY THE SITUATION WAS THEN THE SAME AS IF THE
CORPORATION HAD CONVEYED TITLE TO THE PURCHASERS, AS OWNERS, AND THEY
HAD MORTGAGED THE LOTS TO THE CORPORATION TO SECURE THE UNPAID PURCHASE
MONEY."  PAGE 555.  THE COURT SUSTAINED THE TAX SUBJECT TO THE
PARAMOUNT LIEN OF THE UNITED STATES.  WE THINK THE PETITIONER'S
MINNESOTA PROPERTY IS IN A SIMILAR POSITION.  OWNERSHIP OF THE
BENEFICIAL INTEREST HAS PASSED TO THE PETITIONER WITH LEGAL TITLE
RETAINED BY THE UNITED STATES FOR SECURITY PURPOSES.  THIS SHOULD NOT
PUT THIS PRIVATE PROPERTY IN AN EXEMPT CLASS. 

THERE IS A SUGGESTION THAT TO HOLD UNITED STATES PROPERTY SUBJECT TO
STATE TAXATION PENDING THE COMPLETION OF PAYMENT WILL INJURIOUSLY
AFFECT ITS SALABILITY AND THEREFORE INTERFERE WITH THE GOVERNMENT'S
HANDLING OF ITS AFFAIRS.  OUR RECENT CASES HAVE DISPOSED OF THIS
ECONOMIC ARGUMENT IN A WAY WHICH IS CONTRARY TO PETITIONER'S
CONTENTION.  ALABAMA V. KING & BOOZER, 314 U.S. 1, AND CASES CITED. 

THE ONLY OTHER CONTENTION OF PETITIONER WHICH WE NEED MENTION IS THAT
THE STATE HAS INCLUDED THE INTEREST OF THE UNITED STATES IN THE
VALUATION OF THE LAND, AND HAS THEREFORE SUBJECTED THAT INTEREST TO
TAXATION.  BUT NO DEDUCTION NEED BE MADE FOR THE INTEREST OF THE
GOVERNMENT SINCE THAT INTEREST IS FOR SECURITY PURPOSES ONLY AND IS NOT
BENEFICIAL IN NATURE.  THE WHOLE EQUITABLE OWNERSHIP IS IN THE
PETITIONER AND THE VALUE OF THAT OWNERSHIP MAY BE ASCERTAINED ON THE
BASIS OF THE FULL VALUE OF THE LAND.  NEW BRUNSWICK V. UNITED STATES,
SUPRA, AT 555-56.  AFFIRMED. 

FN1  NO. 255, S.R.A., INC. V. MINNESOTA, IS IN ALL RESPECTS LIKE NO.
254, EXCEPT THAT THE STATE TAX WAS LAID FOR THE YEAR 1941.  THIS
OPINION IN NO. 254 GOVERNS THE RESULT AND THE SAME JUDGMENT OF
AFFIRMANCE IS DIRECTED.  SEE 219 MINN. 517, 18 N.W.2D 455; CERTIORARI
GRANTED, 326 U.S. 703. 

FN2  VARYING RESULTS HAVE BEEN REACHED BY OTHER COURTS IN SIMILAR
SITUATIONS.  LINCOLN COUNTY V. PACIFIC SPRUCE CORP., 26 F.2D 435; KEN
REALTY CO. V. JOHNSON, 138 F.2D 809; MINT REALTY CO. V. PHILADELPHIA,
218 PA. 104, 66 A. 1130; COPP V. STATE, 69 W. VA. 439, 71 S.E. 580; ABR
CORP. V. NEWARK, 133 N.J.L. 34, 42 A.2D 296.  SEE ALSO BANCROFT
INVESTMENT CORP. V. JACKSONVILLE, 157 FLA. 546, 27 SO.2D 162. 

FN3  COMPARE MAYO V. UNITED STATES, 319 U.S. 441, WITH ALABAMA V.
KING & BOOZER, SUPRA, AND UNITED STATES V. ALLEGHENY COUNTY, SUPRA, P.
176, NOTES 1 AND 2, AND CASES CITED.  SEE WILSON V. COOK, 327 U.S.
474. 

FN4  ART. I, SEC. 8, CL. 17: 

"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, AND TO EXERCISE LIKE AUTHORITY
OVER ALL PLACES PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE
STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES,
ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL BUILDINGS; ..." 

FN5  FORT LEAVENWORTH R. CO. V. LOWE, 114 U.S. 525, 532-33; UNITED
STATES V. UNZEUTA, 281 U.S. 138; SURPLUS TRADING CO. V. COOK, 281 U.S.
647, 652-56; BOWEN V. JOHNSTON, 306 U.S. 19. 

FN6  STEWART & CO. V. SADRAKULA, 309 U.S. 94; SURPLUS TRADING CO. V.
COOK, SUPRA, NOTE 5. 

FN7  FORT LEAVENWORTH R. CO. V. LOWE, SUPRA, P. 528; BENSON V. UNITED
STATES, 146 U.S. 325, 330; MASON CO. V. TAX COMM'N, 302 U.S. 186, 207. 

AT THE TIME OF THE PURCHASE, 5 STAT. 468, LATER INCORPORATED IN R.S.
SEC. 355, WAS IN FORCE.  AS IT REQUIRED CONSENT OF THE STATE OF THE
SITUS BEFORE EXPENDITURES OF PUBLIC MONEY BY THE UNITED STATES ON
LOCATIONS PURCHASED FOR NEEDFUL BUILDINGS, IT IS TO BE PRESUMED THAT
ALL REQUIREMENTS WERE SATISFIED.  R.S. SEC. 355 HAS BEEN CONSISTENTLY
CONSTRUED TO REQUIRE FULL SOVEREIGNTY IN THE UNITED STATES.  8 OP. A.G.
102; 10 OP. A.G. 34; 20 OP. A.G. 611; 31 OP. A.G. 265; 38 OP. A.G. 341;
39 OP. A.G. 285.  R.S. SEC. 355 HAS BEEN SUPERSEDED.  40 U.S.C. SEC.
255; ADAMS V. UNITED STATES, 319 U.S. 312. 

FN8  30 STAT. 668; 9 STAT. 35. 

FN9  COMPARE PALMER V. BARRETT, 162 U.S. 399; JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, 144. 

FN10  COMPARE PALMER V. BARRETT, SUPRA, WITH ARLINGTON HOTEL V. FANT,
278 U.S. 439. 

FN11  FORT LEAVENWORTH R. CO. V. LOWE, 114 U.S. 525, 542:  "IT IS
NECESSARILY TEMPORARY, TO BE EXERCISED ONLY SO LONG AS THE PLACES
CONTINUE TO BE USED FOR THE PUBLIC PURPOSES FOR WHICH THE PROPERTY WAS
ACQUIRED OR RESERVED FROM SALE.  WHEN THEY CEASE TO BE THUS USED, THE
JURISDICTION REVERTS TO THE STATE." 

THE REFERENCE TO FEDERAL CONTROL OF "RESERVED" LAND PROBABLY RELATES
TO THE SUPREMACY OF THE UNITED STATES FOR THE MANAGEMENT OF
GOVERNMENTAL AFFAIRS IN THE ABSENCE OF EXCLUSIVE LEGISLATIVE POWER. 
SEE PAGE 539. 

FN12  LENMAN V. JONES, 222 U.S. 51; GUNTON V. CARROLL, 101 U.S. 426,
430-31; BISSELL V. HEYWARD, 96 U.S. 580; SECOMBE V. STEELE, 20 HOW. 
94, 103-104.  COMPARE 8 THOMPSON, REAL PROPERTY, SEC. 4579; 2 SUGDEN,
VENDORS (14TH ED.), 375.  SEE LOWERY V. PETERSON, 75 ALA. 109.  COMPARE
RESTATEMENT, CONFLICT OF LAWS, SEC. 209. 

FN13 WE INTIMATE NO VIEW AS TO THE LEGISLATIVE STATUS OF THIS
PROPERTY, IF IT IS REPOSSESSED BY THE UNITED STATES.  SEE THE CASES
CITED IN NOTE 10, SUPRA. 

FN14  AS THE CASE WAS TRIED BELOW ON THE THEORY OF DIRECT OR IMPLIED
IMMUNITY BECAUSE THE FEE WAS IN THE UNITED STATES, WE NEITHER CONSIDER
NOR DECIDE THE EFFECT OF A TAX SALE OF PETITIONER'S RIGHTS ON ITS
CONTRACT WITH THE UNITED STATES.  SEE WILSON V. COOK, 327 U.S. 474,
483.  COMPARE 41 U.S.C. SEC. 15 WITH FREEDMAN'S SAVING CO. V. SHEPHERD,
127 U.S. 494. 

FN15  RAILWAY CO. V. PRESCOTT, 16 WALL.  603; RAILWAY CO. V. MCSHANE,
22 WALL.  444; NORTHERN PACIFIC R. CO. V. TRAILL COUNTY, 115 U.S. 600;
IRWIN V. WRIGHT, 258 U.S. 219. 

FN16  IRWIN V. WRIGHT, SUPRA, 228, 229, 232, 233; NORTHERN PACIFIC R.
CO. V. TRAILL COUNTY, SUPRA, AT 609; RAILWAY CO. V. MCSHANE, SUPRA, AT
462. 

FN17  16 WALL.  AT 608; 22 WALL.  AT 462; 115 U.S. AT 610.  SEE ALSO
COLORADO CO. V. COMMISSIONERS, 95 U.S. 259.  IN THE MCSHANE CASE,
ITSELF, WHICH CLEARLY SET OUT THE ABOVE REASON FOR NON-TAXABILITY, IT
WAS RECOGNIZED THAT THE FEDERAL RIGHT OF PRE-EMPTION FOR THE BENEFIT OF
SETTLERS WOULD NOT BE AFFECTED BY A STATE TAX SALE.  THIS COURT
THEREFORE REVERSED ITS FORMER JUDGMENT IN THE PRESCOTT CASE THAT LAND
HELD BY THE RAILROADS SUBJECT TO THIS PRE-EMPTION COULD NOT BE TAXED BY
A STATE.  22 WALL.  AT 461.  CONGRESS PROMPTLY TERMINATED THE LAND TAX
EXEMPTION AFTER THE TRAILL COUNTY DECISION BY SUBJECTING RAILROAD LAND
GRANTS TO STATE TAXATION BEFORE PAYMENT OF CONVEYANCING COSTS.  43
U.S.C. SEC. 882. 

FN18  BOTHWELL V. BINGHAM COUNTY, 237 U.S. 642, 647. 

FN19  ELDER V. WOOD, 208 U.S. 226. 

FN20  BUT SEE ABR CORP. V. NEWARK, 133 N.J.L. 34. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. CHIEF JUSTICE STONE, WITH WHOM MR. JUSTICE FRANKFURTER JOINS,
CONCURRING. 

I CONCUR IN THE RESULT, BUT I DO NOT JOIN IN SO MUCH OF THE OPINION
OF THE COURT AS UNDERTAKES TO DISCUSS THE TERRITORIAL JURISDICTION OF
THE STATE OF MINNESOTA OVER THE LAND IN QUESTION.  THE TERRITORIAL
JURISDICTION OF THE STATE TO LAY THE TAX, SAID TO BE A NOVEL QUESTION,
WAS NOT RAISED IN THE STATE COURTS, BY THE PETITION FOR CERTIORARI, OR
IN ARGUMENT OR BRIEFS IN THIS COURT.  UNDER OUR DECISIONS WE ARE
THEREFORE NOT FREE TO DECIDE IT.  MCGOLDRICK V. COMPAGNIE GENERALE, 309
U.S. 430, 434-5; WILSON V. COOK, 327 U.S. 474, 483-484, AND CASES
CITED; SEE ALSO RULE 38, PAR. 2 OF THE RULES OF THIS COURT; FLOURNOY V.
WIENER, 321 U.S. 253, 259.  SINCE THE OPINION OF THE COURT EXPRESSES NO
DISAPPROVAL OF THESE AUTHORITIES, I TAKE IT THAT EVERYTHING SAID ON THE
QUESTION OF MINNESOTA'S TERRITORIAL JURISDICTION TO TAX IS DICTUM.  OUR
OPINION SHOULD BE CONFINED TO THE SINGLE QUESTION WHICH THE PETITIONER
PRESENTS FOR OUR DECISION, WHETHER THE RETENTION BY THE UNITED STATES
OF THE LEGAL TITLE TO THE TAXED LAND PRECLUDES ITS TAXATION TO
PETITIONER, WHICH, UNDER ITS CONTRACT WITH THE GOVERNMENT, HAS ACQUIRED
POSSESSION AND RIGHT TO POSSESSION.  AS I HAVE NO DOUBT ON THIS
QUESTION, I AGREE THE JUDGMENTS SHOULD BE AFFIRMED. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE GOVERNMENT SOLD A PIECE OF SURPLUS PROPERTY LOCATED IN ST. PAUL,
MINNESOTA.  IT PUT THE VENDEE IN POSSESSION BUT RETAINED THE LEGAL
TITLE, WITH THE RIGHT OF RE-ENTRY, AS SECURITY FOR PORTIONS OF THE
PURCHASE PRICE REMAINING DUE UNDER THE CONTRACT OF SALE.  THE DECISIVE
QUESTION BEFORE US IS WHETHER THE INTEREST THUS RETAINED BY THE UNITED
STATES BARS MINNESOTA, UNDER A GENERAL NON-DISCRIMINATORY LAW, FROM
TAXING THE VENDEE'S INTEREST IN THE PROPERTY.  THE CONSTITUTION ITSELF
FURNISHES NO ANSWER IN TERMS.  BUT THE CONSIDERATIONS GOVERNING THE
APPROPRIATE ADJUSTMENT BETWEEN NATIONAL AND STATE POWERS OF TAXATION,
WHERE THE INCIDENCE OF TAXATION MAY AFFECT THE PROPERTY OR FUNCTIONS OF
ONE ANOTHER, DO NOT REQUIRE THAT ENTIRE IMMUNITY FROM STATE TAXATION BE
AFFORDED THIS PIECE OF PROPERTY BECAUSE OF THE INTEREST WHICH THE
UNITED STATES RETAINED TO SECURE THE UNPAID PURCHASE PRICE.  SINCE THE
GOVERNMENT'S SECURITY IS LEFT UNTOUCHED BY MINNESOTA, WHAT REMAINS OF
THE GOVERNMENT'S RELATION TO THE PROPERTY IS TOO ATTENUATED TO WITHDRAW
IT ENTIRELY FROM MINNESOTA'S TAXING POWER. 

THE MATTER WOULD HARDLY BE OPEN TO QUESTION BUT FOR A SERIES OF CASES
ARISING UNDER LAND GRANT LEGISLATION.  AS THE OPINION OF THE COURT
PERSUASIVELY SHOWS, THESE DECISIONS REST UPON CONSIDERATIONS OF POLICY
NOT RELEVANT TO THE IMMEDIATE SITUATION. 

I AGREE WITH THE CHIEF JUSTICE THAT OUR DISPOSITION OF THIS CASE
SHOULD BE CONFINED TO THE ONLY QUESTION RAISED BY THE RECORD, THAT OF
THE STATE'S POWER TO TAX, UNEMBARRASSED BY ANY ISSUE AS TO TERRITORIAL
JURISDICTION.  THE CHIEF JUSTICE GIVES CONCLUSIVE GROUND FOR SUCH
ABSTENTION.  MOREOVER, EVEN AS TO PROPERTY INDISPUTABLY OWNED BY THE
GOVERNMENT, THERE MAY BE "UNCERTAINTY AND CONFUSION" WHETHER
JURISDICTION BELONGS TO THE FEDERAL GOVERNMENT OR TO A STATE.  SEE
BOWEN V. JOHNSTON, 306 U.S. 19, 27; AND PACIFIC COAST DAIRY V. DEPT.,
318 U.S. 285, 299.  TAXABILITY AND TERRITORIAL JURISDICTION ARE NOT
CORRELATIVE.  WE OUGHT NOT TO BORROW TROUBLE. 
..END :




















KENNECOTT COPPER CORP. V. TAX COMM'N, 327 U.S. 573 


ARGUED JANUARY 30, 31, 1946.  - DECIDED MARCH 25, 1946.  - 150 F.2D 905,
AFFIRMED. 


1.  A SUIT BY A TAXPAYER AGAINST THE STATE TAX COMMISSION OF UTAH AND
INDIVIDUALS CONSTITUTING THE COMMISSION TO RECOVER TAXES PAID UNDER
PROTEST, THE MONEY BEING SEGREGATED UNDER SEC. 80-11-13 OF THE UTAH
CODE ANNO.  1943, AND HELD FOR DETERMINATION OF THE TAXPAYER'S RIGHTS
WITH PROVISION FOR ANY DEFICIENCY FOR INTEREST OR COSTS TO BE PAID BY
THE STATE, IS A SUIT AGAINST THE STATE.  P. 576. 

2.  SECTION 80-11-11, UTAH CODE ANNO.  1943, AUTHORIZING ANY TAXPAYER
WHO HAS PAID TAXES UNDER PROTEST TO BRING SUIT "IN ANY COURT OF
COMPETENT JURISDICTION" AGAINST THE OFFICER TO WHOM THE TAX WAS PAID
"OR AGAINST THE STATE" TO RECOVER THE TAX, DOES NOT GRANT CONSENT TO
SUITS AGAINST THE STATE IN THE FEDERAL COURTS.  GREAT NORTHERN INS. CO.
V. READ, 322 U.S. 47; FORD CO. V. DEPARTMENT OF TREASURY, 323 U.S. 459,
FOLLOWED.  PP. 577-579. 

KENNECOTT COPPER CORP. V. STATE TAX COMMISSION ET AL. 

NO. 424.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT* . 

*TOGETHER WITH NO. 425, SILVER KING COALITION MINES CO. V. STATE TAX
COMMISSION ET AL., ON CERTIORARI TO THE SAME COURT, ARGUED AND DECIDED
ON THE SAME DATES. 

A NONRESIDENT TAXPAYER BROUGHT SUIT IN A FEDERAL DISTRICT COURT
AGAINST THE STATE TAX COMMISSION OF UTAH AND INDIVIDUALS CONSTITUTING
THE COMMISSION TO RECOVER TAXES PAID UNDER PROTEST.  THE DISTRICT COURT
GAVE JUDGMENT FOR THE PLAINTIFF.  60 F.SUPP.  181.  THE CIRCUIT COURT
OF APPEALS REVERSED, WITH DIRECTIONS TO DISMISS WITHOUT PREJUDICE, ON
THE GROUND THAT IT WAS A SUIT AGAINST THE STATE WITHOUT ITS CONSENT. 
150 F.2D 905.  THIS COURT GRANTED CERTIORARI.  326 U.S. 711.  AFFIRMED,
P. 580. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

WHETHER UTAH HAS SUBMITTED ITSELF TO SUIT IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF UTAH FOR THE RECOVERY OF TAXES
ALLEGED TO BE WRONGFULLY EXACTED BY THAT STATE IS THE ULTIMATE ISSUE
BROUGHT HERE BY THESE WRITS OF CERTIORARI.  PRELIMINARILY, WE MUST
DECIDE IF THE PRESENT PROCEEDING IS A SUIT AGAINST UTAH. 

PETITIONERS, CORPORATIONS AND CITIZENS OF NEW YORK AND NEVADA
RESPECTIVELY, CARRY ON MINING BUSINESSES IN UTAH.  THAT STATE IMPOSES
ON THOSE THERE ENGAGED IN THE MINING BUSINESS AN OCCUPATION TAX EQUAL
TO ONE PER CENT OF THE GROSS AMOUNT RECEIVED FOR OR THE GROSS VALUE OF
METALLIFEROUS ORE SOLD DURING THE PRECEDING CALENDAR YEAR.  THE STATE
TAX COMMISSION ADMINISTERS THE ACT.  UTAH CODE ANNOTATED (1943) SECS.
80-5-65 TO 80-5-82, INCLUSIVE.  FOR THE PURPOSES OF THIS OPINION, IT
NEED ONLY BE SAID AS TO THE FACTS WHICH GIVE RISE TO THIS LITIGATION,
THAT PETITIONERS SEEK RECOVERY OF THAT PORTION OF THEIR OCCUPATION
TAXES FOR 1944 WHICH WAS CALCULATED BY THE TAX COMMISSION BY INCLUDING
IN THE GROSS AMOUNT RECEIVED BY PETITIONERS FOR THEIR ORE CERTAIN
SUBSIDIES FOR WAR PRODUCTION PAID TO PETITIONERS BY THE UNITED STATES
PURSUANT TO AN ORDER OF THE OFFICE OF PRICE ADMINISTRATION, DATED
FEBRUARY 9, 1942, NO. P.M. 2458.  PETITIONERS ASSERT THAT THIS SUBSIDY
SHOULD NOT BE INCLUDED IN THEIR OCCUPATIONAL TAX BASE.  AS THE TAX
COMMISSION DID INCLUDE THE SUBSIDIES IN THE BASE AFTER ADMINISTRATIVE
RULINGS WHICH DENIED PETITIONERS' CLAIMS, PETITIONERS EACH PAID THE
TOTAL TAX LEVIED, PROTESTED THAT PORTION THEREOF WHICH WAS BASED UPON
THE SUBSIDY AND BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF UTAH AGAINST THE STATE TAX COMMISSION, AND THE
INDIVIDUALS "CONSTITUTING" IT AS "MEMBERS," FOR THE RECOVERY OF THE
PROTESTED AMOUNT UNDER SECTIONS OF THE UTAH CODE (1943), SET OUT BELOW,
WHICH PETITIONERS CLAIM AUTHORIZE THESE PROCEEDINGS.  FN1 

THE CAUSES PRESENT IDENTICAL QUESTIONS.  THEY WERE CONSOLIDATED FOR
TRIAL IN THE DISTRICT COURT AND SEPARATE JUDGMENTS WERE ENTERED FOR
PLAINTIFFS AGAINST THE "STATE TAX COMMISSION, ET AL."  FOR THE AMOUNTS
CLAIMED.  60 F.SUPP.  181.  SEPARATE APPEALS WERE PERFECTED TO THE
CIRCUIT COURT OF APPEALS.  THE CASES WERE THERE BRIEFED, ARGUED AND
DECIDED TOGETHER BUT WITH SEPARATE JUDGMENTS REVERSING THE DISTRICT
COURT WITH DIRECTIONS TO DISMISS WITHOUT PREJUDICE SINCE IT WAS A SUIT
AGAINST THE STATE WITHOUT ITS CONSENT.  STATE TAX COMMISSION V.
KENNECOTT COPPER CORP., 150 F.2D 905.  ON ACCOUNT OF THE IMPORTANCE OF
THE ISSUES, WE GRANTED CERTIORARI TO DETERMINE WHETHER THE BASIS OF THE
DECISIONS IN GREAT NORTHERN INS. CO. V. READ, 322 U.S. 47, AND FORD CO.
V. DEPARTMENT OF TREASURY, 323 U.S. 459, ENCOMPASSED THE CIRCUMSTANCES
OF THESE CASES.  A SINGLE OPINION SUFFICES HERE ALSO. 

FEDERAL JURISDICTION IS CLAIMED UNDER DIVERSITY OF CITIZENSHIP AND
BECAUSE THE CONTROVERSY ARISES UNDER THE CONSTITUTION AND LAWS OF THE
UNITED STATES.  THE CLAIM IS THAT THE INCLUSION OF THE SUBSIDY IN THE
TAX BASE INTERFERES WITH THE WAR POWER OF CONGRESS AND THE EMERGENCY
PRICE CONTROL ACT OF 1942, 50 U.S.C. SECS. 901, 902(E), BY TAXING THE
SUBSIDY ON SURPLUS PRODUCTION OVER FIXED QUOTAS WITH THE RESULT THAT A
PART OF THE SUBSIDY WAS DIVERTED FROM ITS SOLE PURPOSE OF INSURING THE
MAXIMUM NECESSARY PRODUCTION.  SEE REVENUE ACT OF 1942, SECS. 209, 735,
56 STAT. 904, 907. 

AS WE CONCLUDE THAT THESE SUITS ARE SUITS AGAINST UTAH AND THAT UTAH
HAS NOT CONSENTED TO BE SUED FOR THESE ALLEGED WRONGFUL TAX EXACTIONS
IN THE FEDERAL COURTS, WE EXPRESS NO OPINION UPON THE MERITS OF THE
CONTROVERSY. 

THIS IS A SUIT AGAINST THE STATE.  UTAH HAS ESTABLISHED AN ADEQUATE
PROCEDURE FOR THE RECOVERY OF TAXES ILLEGALLY COLLECTED.  WHEN THE
STATE COLLECTS A TAX UNDER PROTEST, THE MONEY IS SEGREGATED AND HELD
FOR THE DETERMINATION OF THE TAXPAYERS' RIGHTS WITH PROVISION FOR ANY
DEFICIENCY FOR INTEREST OR COSTS TO BE PAID BY THE STATE.  FN2  THE
MINING OCCUPATION TAX MAKES THE STATE TAX COMMISSION THE STATE AGENCY
FOR ADMINISTRATION AND COLLECTION OF THE UTAH TAX.  THE PETITIONERS
PAID THEIR TAXES TO THE COMMISSION UNDER PROTEST AND BROUGHT THESE
ACTIONS TO RECOVER THE CONTESTED PORTION. 

PETITIONERS ALLEGED COMPLIANCE WITH THE ACT'S REQUIREMENTS FOR
REPORTS, ASSESSMENTS AND ADMINISTRATIVE REMEDIES WITH PAYMENT UNDER
PROTEST OF THE CONTROVERTED SUMS FOR UTAH TO THE "STATE TAX COMMISSION"
ONLY.  THE COMMISSION, ALONE, IS CHARGED TO HAVE "EXACTED FINAL
PAYMENT" AND TO HAVE ACQUIESCED IN PLAINTIFFS' DEMAND IN ACCORDANCE
WITH STATUTORY REQUIREMENTS TO SHOW PAYMENT AND PROTEST ON THE
COMMISSION'S BOOKS WITH RESULTANT SEGREGATION OF THE FUNDS COLLECTED
FROM UTAH'S GENERAL FUNDS. 

AS THE SUITS WERE AGAINST THE COMMISSION AND THE MEMBERS AS
"CONSTITUTING" SUCH COMMISSION, WERE BASED UPON THE PAYMENT TO THE
COMMISSION AS COLLECTOR FOR UTAH AND SOUGHT RECOVERY OF THE FUND,
SEQUESTERED BY SEC. 80-11-13, TOGETHER WITH THE INTEREST AND COSTS
THEREIN PROVIDED FOR, WE ARE SATISFIED THESE ARE SUITS AGAINST UTAH. 
MINE SAFETY APPLIANCES CO. V. FORRESTAL, 326 U.S. 371; GREAT NORTHERN
INS. CO. V. READ, 322 U.S. 47, 51; FORD CO. V. DEPARTMENT OF TREASURY,
323 U.S. 459, 462. 

UPON THE QUESTION OF THE CONSENT OF UTAH TO SUIT AGAINST ITSELF IN
THE FEDERAL COURTS FOR CONTROVERSIES ARISING UNDER THE FEDERAL
CONSTITUTION, LITTLE NEEDS TO BE ADDED TO OUR DISCUSSION IN THE READ
AND FORD CASES.  THESE CASES DECLARE THE RULE THAT CLEAR DECLARATION OF
A STATE'S CONSENT TO SUIT AGAINST ITSELF IN THE FEDERAL COURT ON FISCAL
CLAIMS IS REQUIRED.  THE REASON UNDERLYING THE RULE, WHICH IS DISCUSSED
AT LENGTH IN THE READ AND FORD CASES, IS THE RIGHT OF A STATE TO
RESERVE FOR ITS COURTS THE PRIMARY CONSIDERATION AND DECISION OF ITS
OWN TAX LITIGATION BECAUSE OF THE DIRECT IMPACT OF SUCH LITIGATION UPON
ITS FINANCES. 

PETITIONERS POINT TO DISTINCTIONS BETWEEN THE PRESENT CASES AND THOSE
TO WHICH REFERENCE HAS JUST BEEN MADE.  THEY CALL ATTENTION TO THE
HISTORY OF THE SECTION AUTHORIZING RECOVERY OF TAXES UNLAWFULLY
COLLECTED.  SECTION 80-11-11 WAS ENACTED IN 1896 WITHOUT THE INCLUSION
OF THE STATE AS A POSSIBLE DEFENDANT.  LAWS OF UTAH 1896, CH. CXXIX,
SEC. 180, P. 466.  IT WAS AMENDED IN 1933 WHEN THE WORDS "STATE" AND
"OR OTHER TAXING UNIT" WERE ADDED.  PETITIONERS URGE THAT SINCE THE
PHRASE "IN ANY COURT OF COMPETENT JURISDICTION" HAD BEEN ASSUMED TO
PERMIT SUITS IN THE FEDERAL COURTS THAT PRACTICE SHOULD BE READ INTO
THE WORD "STATE" WHEN THAT ENTITY WAS MADE SUBJECT TO TAX SUITS.  FN3 

IT IS ALSO URGED THAT "ANY COURT OF COMPETENT JURISDICTION" HAS LONG
BEEN CONSTRUED IN THE FEDERAL STATUTES AS INCLUDING BOTH STATE AND
FEDERAL COURTS.  FN4  OUR ATTENTION IS DIRECTED TO SEC. 80-5-76
LIMITING STATUTORY REVIEW OF ADMINISTRATIVE DECISIONS OF THE MINING
OCCUPATION TAX TO THE SUPREME COURT OF THE STATE WHILE ALLOWING SUITS
FOR RECOVERY OF UNLAWFUL TAXES PAID UNDER PROTEST TO "ANY COURT OF
COMPETENT JURISDICTION." 

FOR THESE REASONS PETITIONERS CONTEND THAT THE UTAH STATUTES INDICATE
AN INTENTION TO PERMIT SUITS AGAINST THE STATE IN FEDERAL COURTS. 
FURTHERMORE, PETITIONERS FIND SIGNIFICANCE IN VARIATIONS BETWEEN THE
STATE STATUTES IN THE READ CASE AND THE FORD CASE ON ONE HAND AND THE
UTAH STATUTES ON THE OTHER.  PETITIONERS SHOW THAT WE PLACE RELIANCE IN
BOTH CASES ON THE PROCEDURAL REQUIREMENTS OF THE RESPECTIVE STATUTES OF
OKLAHOMA AND INDIANA.  FN5  WE SAID IN THOSE CASES THAT SINCE STATE
LAWS COULD NOT AFFECT PROCEDURE IN FEDERAL COURTS, IT WAS TO BE
INFERRED THAT ONLY STATE COURTS WERE INCLUDED IN THE STATES' CONSENT TO
SUIT. 

THE BASES FOR INFERENCE ADVANCED BY PETITIONERS MIGHT LOGICALLY LEAD
TO A CONCLUSION THAT UTAH INTENDED TO SUBMIT THE INTERPRETATION OF ITS
TAX STATUTES TO FEDERAL TRIAL COURTS WHERE THE CONTROVERSIES ARISE
UNDER FEDERAL LAW.  ON THE OTHER HAND, IT MAY BE COGENTLY ARGUED THAT
THE PRACTICE OF TREATING THE FEDERAL COURTS AS COURTS OF COMPETENT
JURISDICTION UNDER SEC. 80-11-11 BEFORE THE ADDITION OF THE STATE AS A
POSSIBLE DEFENDANT RESULTED FROM THE FACT THAT CONSENT WAS NOT
NECESSARY FOR SUITS AGAINST COUNTIES AND MUNICIPALITIES N6.  IT COULD
BE URGED THAT GRANTS OF JURISDICTION TO COURTS OF COMPETENT
JURISDICTION BY FEDERAL LEGISLATION FOR THE BENEFIT OF LITIGANTS OTHER
THAN THE UNITED STATES ARE NOT PERSUASIVE AS TO THE INTENT OF A STATE
TO CONSENT TO SUITS IN FEDERAL COURTS.  FN7  WE ARE INFORMED THAT UTAH
EMPLOYS EXPLICIT LANGUAGE TO INDICATE, IN OTHER LITIGATION, ITS CONSENT
TO SUITS IN FEDERAL COURTS.  FN8  IT IS TO BE NOTED THAT THE CASES
UNDER CONSIDERATION ILLUSTRATE THE DISADVANTAGE OF DEDUCING FROM
EQUIVOCAL LANGUAGE A STATE'S CONSENT TO SUIT IN THE FEDERAL COURTS ON
CAUSES OF ACTION ARISING UNDER STATE TAX STATUTES.  THE DISADVANTAGE
REFERRED TO IS THAT, IF THE MERITS WERE TO BE PASSED UPON, THE INITIAL
INTERPRETATION OF THE MEANING AND APPLICATION OF A STATE STATUTE WOULD
HAVE TO BE MADE BY A FEDERAL COURT WITHOUT A PREVIOUS AUTHORITATIVE
INTERPRETATION OF THE STATUTE BY THE HIGHEST COURT OF THE STATE.  SEE
SPECTOR MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101, 103-105. 

WE CONCLUDE THAT THE UTAH STATUTES FALL SHORT OF THE CLEAR
DECLARATION BY A STATE OF ITS CONSENT TO BE SUED IN THE FEDERAL COURTS
WHICH WE THINK IS REQUIRED BEFORE FEDERAL COURTS SHOULD UNDERTAKE
ADJUDICATION OF THE CLAIMS OF TAXPAYERS AGAINST A STATE.  AFFIRMED. 

FN1  UTAH CODE ANNO.  1943, 80-5-76: 

"NO COURT OF THIS STATE EXCEPT THE SUPREME COURT SHALL HAVE
JURISDICTION TO REVIEW, ALTER, OR ANNUL ANY DECISION OF THE TAX
COMMISSION OR TO SUSPEND OR DELAY THE OPERATION OR EXECUTION THEREOF;
PROVIDED, ANY TAXPAYER MAY PAY HIS OCCUPATION TAX UNDER PROTEST AND
THEREAFTER BRING AN ACTION IN ANY COURT OF COMPETENT JURISDICTION FOR
THE RETURN THEREOF AS PROVIDED BY SECTION 80-11-11, REVISED STATUTES OF
UTAH, 1933." 

ID., 80-11-11(THIS IS IDENTICAL WITH REVISED STATUTES OF UTAH,
1933): 

"IN ALL CASES OF LEVY OF TAXES, LICENSES, OR OTHER DEMANDS FOR PUBLIC
REVENUE WHICH IS DEEMED UNLAWFUL BY THE PARTY WHOSE PROPERTY IS THUS
TAXED, OR FROM WHOM SUCH TAX OR LICENSE IS DEMANDED OR ENFORCED, SUCH
PARTY MAY PAY UNDER PROTEST SUCH TAX OR LICENSE, OR ANY PART THEREOF
DEEMED UNLAWFUL, TO THE OFFICERS DESIGNATED AND AUTHORIZED BY LAW TO
COLLECT THE SAME; AND THEREUPON THE PARTY SO PAYING OR HIS LEGAL
REPRESENTATIVE MAY BRING AN ACTION IN ANY COURT OF COMPETENT
JURISDICTION AGAINST THE OFFICER TO WHOM SAID TAX OR LICENSE WAS PAID,
OR AGAINST THE STATE, COUNTY, MUNICIPALITY OR OTHER TAXING UNIT ON
WHOSE BEHALF THE SAME WAS COLLECTED, TO RECOVER SAID TAX OR LICENSE OR
ANY PORTION THEREOF PAID UNDER PROTEST." 

FN2  UTAH CODE ANNO.  1943, 80-11-13: 

"IN CASE ANY TAX OR LICENSE SHALL BE PAID TO THE STATE UNDER PROTEST,
SAID TAX OR LICENSE SO PAID SHALL NOT BE COVERED INTO THE GENERAL FUND
BUT SHALL BE HELD AND RETAINED BY THE STATE TREASURER AND SHALL NOT BE
EXPENDED UNTIL THE TIME FOR THE FILING OF AN ACTION FOR THE RECOVERY OF
SAID TAX OR LICENSE SHALL HAVE EXPIRED, AND IN CASE AN ACTION HAS BEEN
FILED, UNTIL IT SHALL HAVE BEEN FINALLY DETERMINED THAT SAID TAX OR
LICENSE WAS LAWFULLY OR WAS UNLAWFULLY COLLECTED.  IF IN ANY SUCH
ACTION IT SHALL BE FINALLY DETERMINED THAT SAID TAX OR LICENSE WAS
UNLAWFULLY COLLECTED, THE OFFICER COLLECTING SAID TAX OR LICENSE SHALL
FORTHWITH APPROVE A CLAIM FOR THE AMOUNT OF SAID TAX OR LICENSE
ADJUDGED TO HAVE BEEN UNLAWFULLY COLLECTED, TOGETHER WITH COSTS AND
INTEREST AS PROVIDED BY LAW, AND ANY EXCESS AMOUNT IN EXCESS OF SAID
TAX REQUIRED TO PAY SAID CLAIM, INCLUDING INTEREST AND COSTS, SHALL BE
REPAID OUT OF ANY UNAPPROPRIATED FUNDS IN THE HANDS OF THE STATE
TREASURER, OR, IN CASE IT IS NECESSARY, A DEFICIT FOR SAID AMOUNT SHALL
BE AUTHORIZED." 

FN3  THESE EXAMPLES OF SUITS IN FEDERAL COURTS WERE CITED:  BASSETT
V. UTAH COPPER CO., 219 F. 811(SEC.  80-11-11 WAS THEN SEC. 2684);
SOUTH UTAH MINES V. BEAVER COUNTY, 262 U.S. 325(SEC.  2684); SALT LAKE
COUNTY V. UTAH COPPER CO., 294 F. 199; BEAVER COUNTY V. SOUTH UTAH
MINES & SMELTERS, 17 F.2D 577. 

FN4  SHOSHONE MINING CO. V. RUTTER, 177 U.S. 505, 506. 

FN5  322 U.S. AT 55; 323 U.S. AT 465-66. 

FN6  LINCOLN COUNTY V. LUNING, 133 U.S. 529; CHICOT COUNTY V.
SHERWOOD, 148 U.S. 529.  SEE HOPKINS V. CLEMSON COLLEGE, 221 U.S. 636. 
FN7  COMPARE MINNESOTA V. UNITED STATES, 305 U.S. 382, 389. 

FN8  UTAH CODE ANNO.  1943, 104-3-27: 

"UPON THE CONDITIONS HEREIN PRESCRIBED THE CONSENT OF THE STATE OF
UTAH IS GIVEN TO BE NAMED A PARTY IN ANY SUIT WHICH IS NOW PENDING OR
WHICH MAY HEREAFTER BE BROUGHT IN ANY COURT OF THIS STATE OR OF THE
UNITED STATES FOR THE RECOVERY OF ANY PROPERTY REAL OR PERSONAL ..." 

THE CHIEF JUSTICE AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS AND
MR. JUSTICE BURTON CONCUR. 

EVEN WHILE THE CIVIL WAR WAS RAGING LINCOLN DEEMED IT IMPORTANT TO
ASK CONGRESS TO AUTHORIZE THE COURT OF CLAIMS TO RENDER JUDGMENTS
AGAINST THE GOVERNMENT.  HE DID SO ON THE SCORE OF PUBLIC MORALITY. 
"IT IS," WROTE LINCOLN IN HIS FIRST ANNUAL MESSAGE, "AS MUCH THE DUTY
OF GOVERNMENT TO RENDER PROMPT JUSTICE AGAINST ITSELF IN FAVOR OF
CITIZENS AS IT IS TO ADMINISTER THE SAME BETWEEN PRIVATE INDIVIDUALS. 
THE INVESTIGATION AND ADJUDICATION OF CLAIMS IN THEIR NATURE BELONG TO
THE JUDICIAL DEPARTMENT."  7 RICHARDSON, MESSAGES AND PAPERS OF THE
PRESIDENTS, 3245, 3252.  BOTH THE UNITED STATES AND THE STATES ARE
IMMUNE FROM SUIT UNLESS THEY AGREE TO BE SUED.  THOUGH THIS IMMUNITY
FROM SUIT WITHOUT CONSENT IS EMBODIED IN THE CONSTITUTION, IT IS AN
ANACHRONISTIC SURVIVAL OF MONARCHICAL PRIVILEGE, AND RUNS COUNTER TO
DEMOCRATIC NOTIONS OF THE MORAL RESPONSIBILITY OF THE STATE. 

NOT SO LONG AGO THIS COURT ACTED ON THE REALIZATION THAT "THE PRESENT
CLIMATE OF OPINION  ... HAS BROUGHT GOVERNMENTAL IMMUNITY FROM SUIT
INTO DISFAVOR."  KEIFER & KEIFER V. R.F.C., 306 U.S. 381, 391.  TODAY
THE COURT TREATS GOVERNMENTAL IMMUNITY FROM SUIT AS THOUGH IT WERE A
PRINCIPLE OF JUSTICE WHICH MUST BE SAFEGUARDED EVEN TO THE POINT OF
GIVING A STATE'S AUTHORIZATION TO BE SUED THE MOST STRAINED
CONSTRUCTION, WHEREBY A FEDERAL COURT SITTING IN UTAH IS MADE TO APPEAR
NOT A "COURT OF COMPETENT JURISDICTION."  THUS, WHILE DURING THE LAST
SEVENTY-FIVE YEARS GOVERNMENTAL IMMUNITY FROM SUIT, AS A DOCTRINE
WITHOUT MORAL VALIDITY, HAS BEEN PROGRESSIVELY CONTRACTED, THE COURT
NOW TAKES A BACKWARD STEP BY ENHANCING A DISCREDITED DOCTRINE THROUGH
ARTIFICIAL CONSTRUCTION. 

IN DOING SO THE COURT ALSO DISREGARDS THE HISTORIC RELATIONSHIP
BETWEEN THE FEDERAL AND THE STATE COURTS.  IT TREATS A FEDERAL COURT
SITTING IN A STATE AS THOUGH IT WERE THE COURT OF AN ALIEN POWER.  THE
FACT IS THAT THROUGHOUT OUR HISTORY THE COURTS OF A STATE AND THE
FEDERAL COURTS SITTING IN THAT STATE WERE DEEMED TO BE "COURTS OF A
COMMON COUNTRY."  MINNEAPOLIS & ST. LOUIS R. CO. V. BOMBOLIS, 241 U.S.
211, 222.  AS A RESULT, FEDERAL RIGHTS WERE ENFORCED IN STATE COURTS
AND A FEDERAL COURT SITTING IN A STATE WAS DEEMED TO BE "A COURT OF
THAT STATE," EVEN AS TO A LITIGATION LIKE THAT OF A CONDEMNATION
PROCEEDING WHICH WOULD APPEAR TO BE PECULIARLY CONFINED TO A STATE
COURT.  MADISONVILLE TRACTION CO. V. ST. BERNARD MINING CO., 196 U.S.
239, 255-56; EX PARTE SCHOLLENBERGER, 96 U.S. 369, 377; NEIRBO CO. V.
BETHLEHEM CORP., 308 U.S. 165, 171. 

A STATE MAY OF COURSE LIMIT ITS CONSENT TO SUIT IN ITS OWN COURTS. 
IT MAY DO SO BY EXPLICIT LANGUAGE OR BY IMPLICATION THROUGH PROCEDURAL
REQUIREMENTS AND RESTRICTIONS WHICH COULD NOT BE SATISFIED BY A FEDERAL
COURT SITTING IN THE STATE.  SUCH WERE THE GROUNDS OF THE RECENT
DECISIONS IN GREAT NORTHERN LIFE INSURANCE CO. V. READ, 322 U.S. 47,
AND FORD MOTOR CO. V. DEPARTMENT OF TREASURY, 323 U.S. 459.  THESE
DECISIONS, AS THE COURT CONCEDES, RELIED ON PROCEDURAL REQUIREMENTS OF
THE RESPECTIVE STATUTES OF OKLAHOMA AND INDIANA WHICH THE FEDERAL
COURTS IN THESE STATES COULD NOT MEET.  THEREFORE, THOSE STATUTES
IMPLIEDLY GRANTED THE STATE'S CONSENT TO BE SUED ONLY IN THE STATE
COURTS, FOR ONLY THESE COULD MEET THE STATE'S PROCEDURAL REQUIREMENTS. 

UTAH MADE NO RESTRICTION ON THE RIGHT TO SUE.  THE STATUTE GIVING
CONSENT TO SUIT MERELY REQUIRES THE COURT IN WHICH SUIT MAY BE BROUGHT
TO BE A "COURT OF COMPETENT JURISDICTION."  THAT THE DISTRICT COURT FOR
THE DISTRICT OF UTAH IS OTHERWISE A "COURT OF COMPETENT JURISDICTION"
IS NOT GAINSAID.  HOW COULD THE STATE INCLUDE THE UNITED STATES
DISTRICT COURT IN ITS CONSENT TO BE SUED IN A "COURT OF COMPETENT
JURISDICTION" SHORT OF STATING EXPLICITLY THAT A "COURT OF COMPETENT
JURISDICTION" SHALL INCLUDE THE FEDERAL COURTS?  THE OPINION DOES NOT
SAY THAT NOTHING SHORT OF SUCH SPECIFIC AUTHORIZATION TO SUE IN THE
FEDERAL COURT GIVES THE STATE'S CONSENT TO BE SUED THERE.  BUT IF SUCH
A FORMAL REQUIREMENT BE THE MEANING OF THE PRESENT DECISION, IT RUNS
COUNTER TO A LONG COURSE OF ADJUDICATION AND PAYS UNDUE OBEISANCE TO A
DOCTRINE, THAT OF GOVERNMENTAL IMMUNITY FROM SUIT, WHICH, WHATEVER
CLAIMS IT MAY HAVE, DOES NOT HAVE THE SUPPORT OF ANY PRINCIPLE OF
JUSTICE. 
..END :
























A.F. OF L. V. WATSON, 327 U.S. 582 


NO. 448.  ARGUED FEBRUARY 8, 1946.  - DECIDED MARCH 25, 1946.  - 60
F.SUPP.  1010, REVERSED AND THE CAUSE REMANDED. 


1.  SECTION 24(8) OF THE JUDICIAL CODE, GRANTING FEDERAL DISTRICT
COURTS JURISDICTION OF ALL "SUITS AND PROCEEDINGS ARISING UNDER ANY LAW
REGULATING COMMERCE," APPLIES TO A SUIT SEEKING TO PROTECT RIGHTS
ASSERTED UNDER THE NATIONAL LABOR RELATIONS ACT.  P. 589. 

2.  SECTION 266 OF THE JUDICIAL CODE, PROVIDING THAT ONLY A THREE
JUDGE COURT MAY ISSUE AN INTERLOCUTORY INJUNCTION SUSPENDING OR
RESTRAINING "THE ENFORCEMENT, OPERATION, OR EXECUTION OF ANY STATUTE OF
A STATE," APPLIES TO A SUIT IN A FEDERAL COURT TO ENJOIN THE
ENFORCEMENT OF A PROVISION OF A STATE CONSTITUTION.  P. 591. 

(A)  THE POLICY UNDERLYING SEC. 266 ADMITS NO DISTINCTION BETWEEN
STATE ACTION TO ENFORCE A CONSTITUTIONAL PROVISION AND STATE ACTION TO
ENFORCE AN ACT OF THE LEGISLATURE.  P. 592. 

(B)  THE WORD "STATUTE" IN SEC. 266 IS A COMPENDIOUS SUMMARY OF
VARIOUS ENACTMENTS, BY WHATEVER METHOD THEY MAY BE ADOPTED, TO WHICH A
STATE GIVES HER SANCTION AND IS AT LEAST SUFFICIENTLY INCLUSIVE TO
EMBRACE CONSTITUTIONAL PROVISIONS.  P. 592. 

3.  WHERE A STATE ATTORNEY GENERAL HAS CONSTRUED A PROVISION OF THE
STATE CONSTITUTION AS OUTLAWING ALL CLOSED-SHOP AGREEMENTS WITH LABOR
UNIONS, HAS ORDERED LAW ENFORCEMENT AGENCIES TO ENFORCE IT BY CRIMINAL
PROSECUTION OF LABOR UNIONS, THEIR OFFICERS AND AGENTS, AND OF
EMPLOYERS HAVING CLOSED-SHOP AGREEMENTS, AND HAS THREATENED AND
ACTUALLY INSTITUTED QUO WARRANTO PROCEEDINGS TO CANCEL FRANCHISES OF
CORPORATIONS HAVING AND OBSERVING CLOSED-SHOP AGREEMENTS WITH LABOR
UNIONS, THE SITUATION INVOLVES A THREAT OF "IRREPARABLE INJURY WHICH IS
CLEAR AND IMMINENT," SO AS TO JUSTIFY A FEDERAL COURT OF EQUITY IN
INTERFERING WITH THE ENFORCEMENT OF THE STATE LAW, NOTWITHSTANDING SEC.
267 OF THE JUDICIAL CODE FORBIDDING THE MAINTENANCE OF SUITS IN EQUITY
IN THE FEDERAL COURTS "IN ANY CASE WHERE A PLAIN, ADEQUATE, AND
COMPLETE REMEDY MAY BE HAD AT LAW."  P. 593. 

(A)  THE DISRUPTION IN COLLECTIVE BARGAINING WHICH WOULD BE
OCCASIONED BY HOLDING CLOSED-SHOP AGREEMENTS ILLEGAL WOULD BE SO
SERIOUS AS TO MAKE IT FUTILE TO ATTEMPT TO MEASURE THE LOSS IN MONEY
DAMAGES AND ANY REMEDY AT LAW IN THE FEDERAL COURTS WOULD BE
INADEQUATE.  P. 594. 

(B)  THE ANNOUNCEMENT OF THE STATE ATTORNEY GENERAL OF A POLICY TO
PROSECUTE CRIMINALLY ALL VIOLATORS OF THE LAW INVOLVED AND THE ACTUAL
INSTITUTION OF QUO WARRANTO PROCEEDINGS AGAINST SEVERAL CORPORATIONS
HAVING CLOSED-SHOP AGREEMENTS MAKE THE THREAT REAL AND IMMINENT.  P.
594. 

(C)  THE ALLEGATION THAT THERE IS AN IMMINENT THREAT TO AN ENTIRE
SYSTEM OF COLLECTIVE BARGAINING WHICH, IF CARRIED THROUGH, WILL HAVE
SUCH REPERCUSSIONS ON THE RELATIONSHIP BETWEEN CAPITAL AND LABOR AS TO
CAUSE IRREPARABLE DAMAGE STATES A CAUSE OF ACTION IN EQUITY.  P. 595. 

4.  HOWEVER, IN SUCH A SITUATION, THE FEDERAL DISTRICT COURT SHOULD
NOT PASS ON THE MERITS OF THE CONTROVERSY UNTIL THE STATE
CONSTITUTIONAL PROVISION HAS BEEN AUTHORITATIVELY CONSTRUED BY THE
STATE COURTS.  PP. 595-599. 

(A)  IF IT IS CONSTRUED SO AS TO ELIMINATE ANY CONFLICT WITH THE
NATIONAL LABOR RELATIONS ACT, ONE OF THE CONSTITUTIONAL QUESTIONS
ALLEGED TO EXIST IN THIS CASE WILL DISAPPEAR.  P. 598. 

(B)  IF IT IS CONSTRUED AS DOING NO MORE THAN TO GRANT AN INDIVIDUAL
WORKING MAN A CAUSE OF ACTION IF HE IS DENIED EMPLOYMENT UNLESS HE
JOINS A UNION OR TO MAKE CLOSED-SHOP AGREEMENTS UNENFORCEABLE BETWEEN
THE PARTIES, NO CASE OR CONTROVERSY RAISING THE DUE PROCESS QUESTION
WOULD BE PRESENTED BY THIS SUIT, IN WHICH NO INDIVIDUAL WORKING MAN IS
ASSERTING RIGHTS AGAINST UNIONS OR EMPLOYERS AND NO UNION IS SEEKING TO
ENFORCE A CLOSED-SHOP AGREEMENT AGAINST AN EMPLOYER.  P. 598. 

(C)  IF IT IS CONSTRUED NOT TO BE SELF-EXECUTING, SUITS SEEKING TO
RAISE ANY CONSTITUTIONAL QUESTION WOULD BE PREMATURE UNTIL THE STATE
SUPPLIES SANCTIONS FOR ITS ENFORCEMENT.  P. 598. 

5.  IN SUCH CIRCUMSTANCES, THE DISTRICT COURT SHOULD RETAIN THE BILL
UNTIL A DEFINITE DETERMINATION OF THE LOCAL LAW QUESTIONS CAN BE MADE
BY THE STATE COURTS.  P. 599. 

6.  NOTWITHSTANDING THE FACT THAT ONE OF THE PRINCIPAL GROUNDS
ASSERTED FOR EQUITABLE RELIEF IS THE CONTINUANCE OF LITIGATION IN THE
STATE COURTS, THE PURPOSE OF A SUIT TO ENJOIN ENFORCEMENT OF THE STATE
LAW WILL NOT BE DEFEATED BY RETAINING THE BILL PENDING DETERMINATION OF
PROCEEDINGS IN THE STATE COURTS, SINCE THE RESOURCES OF EQUITY ARE NOT
INADEQUATE TO DEAL WITH THE PROBLEM SO AS TO AVOID UNNECESSARY FRICTION
WITH STATE POLICIES WHILE SELECTIVE CASES GO FORWARD IN THE STATE
COURTS FOR AN ORDERLY AND EXPEDITIOUS ADJUDICATION OF THE STATE LAW
QUESTIONS.  P. 599. 

AMERICAN FEDERATION OF LABOR ET AL. V. WATSON, ATTORNEY GENERAL, ET
AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

APPELLANTS SUED TO ENJOIN ENFORCEMENT OF A PROVISION OF THE FLORIDA
CONSTITUTION (QUOTED IN THE OPINION) ON THE GROUND THAT IT VIOLATED THE
FIRST AMENDMENT, FOURTEENTH AMENDMENT, AND THE CONTRACT CLAUSE OF
ARTICLE I, SEC. 10 OF THE FEDERAL CONSTITUTION AND WAS IN CONFLICT WITH
THE NATIONAL LABOR RELATIONS ACT AND THE NORRIS-LAGUARDIA ACT. 

A DISTRICT JUDGE GRANTED A TEMPORARY RESTRAINING ORDER AND CAUSED A
THREE-JUDGE COURT TO BE CONVENED PURSUANT TO SEC. 266 OF THE JUDICIAL
CODE. 

THE DISTRICT COURT CONCLUDED THAT IT HAD JURISDICTION OF THE
CONTROVERSY; BUT, WITHOUT DETERMINING WHETHER THERE WAS EQUITY IN THE
BILL OR WHETHER THE CASE SHOULD BE HELD UNTIL AN AUTHORITATIVE
INTERPRETATION OF THE FLORIDA LAW BY THE COURTS COULD FIRST BE
OBTAINED, PROCEEDED AT ONCE TO A CONSIDERATION OF THE CONSTITUTIONAL
QUESTIONS.  IT HELD THAT THE FLORIDA LAW DID NOT VIOLATE THE FIRST OR
FOURTEENTH AMENDMENT OR THE CONTRACT CLAUSE OF ARTICLE I, SEC. 10 OF
THE FEDERAL CONSTITUTION AND THAT IT WOULD BE TIME TO CONSIDER ANY
CONFLICT WITH THE NATIONAL LABOR RELATIONS ACT IF AND WHEN IT AROSE,
SINCE THAT ACT AND THE FLORIDA LAW DID NOT ON THEIR FACE APPEAR TO BE
IN CONFLICT.  IT ACCORDINGLY VACATED THE TEMPORARY RESTRAINING ORDER
AND DISMISSED THE BILL.  60 F.SUPP.  1010. 

REVERSED AND REMANDED, WITH DIRECTIONS TO RETAIN THE BILL PENDING
DETERMINATION OF PROCEEDINGS IN THE STATE COURTS IN CONFORMITY WITH THE
OPINION OF THIS COURT.  P. 599. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1944 FLORIDA ADOPTED AN AMENDMENT TO HER CONSTITUTION N1 WHICH
READS AS FOLLOWS: 

"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; PROVIDED, THAT THIS CLAUSE SHALL NOT BE CONSTRUED TO DENY
OR ABRIDGE THE RIGHT OF EMPLOYEES BY AND THROUGH A LABOR ORGANIZATION
OR LABOR UNION TO BARGAIN COLLECTIVELY WITH THEIR EMPLOYER." 

SHORTLY THEREAFTER THIS SUIT WAS INSTITUTED TO ENJOIN THE ENFORCEMENT
OF THAT PROVISION ON THE GROUND THAT IT VIOLATED THE FIRST AMENDMENT,
FOURTEENTH AMENDMENT, AND THE CONTRACT CLAUSE OF ARTICLE I, SEC. 10 OF
THE FEDERAL CONSTITUTION AND WAS IN CONFLICT WITH THE NATIONAL LABOR
RELATIONS ACT (49 STAT. 449, 29 U.S.C. SEC. 151) AND THE NORRIS
LAGUARDIA ACT.  47 STAT. 70, 29 U.S.C. SEC. 101. 

THE APPELLANTS (PLAINTIFFS BELOW) ARE VARIOUS NATIONAL AND LOCAL
LABOR ORGANIZATIONS OPERATING IN FLORIDA, INDIVIDUAL EMPLOYEE MEMBERS
OF THOSE ORGANIZATIONS WHO ARE CITIZENS OF THE UNITED STATES, AND THREE
EMPLOYERS DOING BUSINESS IN FLORIDA.  FN2  APPELLEES ARE THE ATTORNEY
GENERAL AND OTHER OFFICIALS OF FLORIDA CHARGED WITH DUTIES OF LAW
ENFORCEMENT AND VARIOUS EMPLOYERS.  FN3 THE THEORY OF THE BILL IS THAT
THE LAW IN QUESTION OUTLAWS ANY AGREEMENT WHICH REQUIRES MEMBERSHIP IN
A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT, ALL OF WHICH WE
REFER TO HEREIN AS THE CLOSED SHOP.  IT IS ALLEGED THAT THE APPELLANT
LABOR ORGANIZATIONS OR THEIR AFFILIATES HAVE BEEN DESIGNATED AS THE
COLLECTIVE BARGAINING REPRESENTATIVES OF EMPLOYEES OF NUMEROUS
EMPLOYERS IN FLORIDA AND THAT A LARGE NUMBER OF THOSE LOCAL AND
NATIONAL UNIONS EITHER HAVE,  FN4  OR DESIRE OR ARE ABOUT TO BECOME
PARTIES TO, CLOSED-SHOP AGREEMENTS WITH FLORIDA EMPLOYERS.  IT IS
ALLEGED THAT THE CLOSED-SHOP AGREEMENT CONSTITUTES THE MOST EFFECTIVE
MEANS POSSESSED BY ORGANIZED LABOR TO ATTAIN ECONOMIC SECURITY, TO
DETER PRACTICES DESTRUCTIVE OF PUBLIC POLICY AND THE INTERESTS OF WAGE
EARNERS, AND EFFECTIVELY TO BARGAIN COLLECTIVELY.  IT IS ALLEGED THAT
ALL OF THE DEFENDANT EMPLOYERS AND TWO OF THE THREE PLAINTIFF EMPLOYERS
ARE PARTIES TO CLOSED-SHOP AGREEMENTS WITH SOME OF THE APPELLANT UNIONS
WHICH EXPIRE AT VARIOUS DATES IN THE YEAR 1945 AND THEREAFTER CONTINUE
IN EFFECT ON A YEAR-TO-YEAR BASIS.  THESE CONTRACTS ARE ALLEGED TO BE
VALUABLE PROPERTY RIGHTS OF THE APPELLANT UNIONS AND THEIR MEMBERS.  IT
IS ALLEGED THAT ONE APPELLANT EMPLOYER (R.J. GOULD) AND SOME OF THE
APPELLANT UNIONS ARE DESIROUS OF ENTERING INTO CLOSED-SHOP AGREEMENTS
BUT ARE PREVENTED FROM DOING SO BY THE FLORIDA LAW.  IT IS ALLEGED THAT
THE SAME PROBLEM OBTAINS WITH RESPECT TO OTHER EMPLOYERS IN FLORIDA. 

THE BILL ALLEGES THAT APPELLEE LAW ENFORCEMENT OFFICIALS HAVE TAKEN
THE POSITION THAT CLOSED-SHOP AGREEMENTS VIOLATE THE FLORIDA LAW AND
THAT THEY INTEND TO ENFORCE COMPLIANCE WITH IT BY CIVIL AND CRIMINAL
PROCEEDINGS.  THE BILL ALLEGES THAT APPELLEE WATSON THREATENS TO
INSTITUTE QUO WARRANTO PROCEEDINGS AGAINST VARIOUS COMPANIES WITH WHOM
APPELLANT UNIONS HAVE COLLECTIVE BARGAINING AGREEMENTS CONTAINING
CLOSED-SHOP AGREEMENTS, WHEREBY IT WILL BE SOUGHT TO CANCEL THEIR
CORPORATE FRANCHISES UNLESS THE CLOSED-SHOP PROVISIONS OF THE
AGREEMENTS ARE NOT OBSERVED.  AND APPELLANTS' MOTION FOR A RESTRAINING
ORDER ALLEGES THAT QUO WARRANTO PROCEEDINGS HAVE BEEN INSTITUTED FOR
THAT PURPOSE AGAINST A NUMBER OF SUCH COMPANIES, INCLUDING THREE OF THE
CORPORATE APPELLEES.  THE BILL FURTHER ALLEGES THAT APPELLEE WATSON HAS
THREATENED APPELLANT UNIONS AND THEIR OFFICERS AND AGENTS AND THE
INDIVIDUAL APPELLANTS WITH CRIMINAL PROSECUTIONS UNLESS THEY GIVE UP
THE CLOSED-SHOP AGREEMENTS AND REFRAIN FROM RENEWING OR ENTERING INTO
ANY SUCH AGREEMENTS.  IT ALLEGES THAT HE HAS ORDERED LAW ENFORCEMENT
AGENCIES TO INSTITUTE SUCH PROSECUTIONS IMMEDIATELY AND THAT THEY ARE
IN PROCESS OF BEING PREPARED. 

IRREPARABLE INJURY IS ALLEGED AS FOLLOWS:  THE THREATENED ACTIONS (A)
WILL RESULT IN INTERMINABLE LITIGATION AND MULTIPLICITY OF PROSECUTIONS
AND LEGAL PROCEEDINGS; (B) WILL CAUSE WIDESPREAD DISRUPTION OF
EMPLOYMENT RELATIONS AND PRODUCTION; (C) WILL DEPRIVE APPELLANTS OF THE
BENEFITS OF EXISTING CONTRACTS; (D) WILL CAUSE APPELLANT UNIONS TO LOSE
PRESENT AND PROSPECTIVE MEMBERS AND IMPERIL THE SECURITY OF THE UNIONS
AND THEIR MEMBERS; (E) WILL MAKE IT IMPOSSIBLE FOR ONE OF THE APPELLANT
EMPLOYERS (R.J. GOULD) TO OBTAIN SUFFICIENT SKILLED LABOR TO CONDUCT
HIS BUSINESS; AND (F) WILL CAUSE A CESSATION OF COLLECTIVE BARGAINING
RELATIONS BETWEEN THE APPELLANT UNIONS AND EMPLOYERS AND WILL RESULT IN
THE DISORGANIZATION AND DISINTEGRATION OF THE UNIONS. 

THE PRAYER WAS FOR A TEMPORARY AND PERMANENT INJUNCTION.  A MOTION TO
DISMISS WAS MADE WHICH, THOUGH DENYING A SHOWING OF IRREPARABLE DAMAGE,
RAISED NO ISSUE OF FACT, OTHER THAN THE QUESTION WHETHER THE AMOUNT
INVOLVED IN THE CONTROVERSY EXCEEDS $3,000. 

THE DISTRICT JUDGE GRANTED A TEMPORARY RESTRAINING ORDER AND PURSUANT
TO A PRAYER OF THE BILL CAUSED A THREE-JUDGE COURT TO BE CONVENED. 
SEC. 266 JUDICIAL CODE, 28 U.S.C. SEC. 380.  THE DISTRICT COURT
CONCLUDED THAT IT HAD JURISDICTION OF THE CONTROVERSY.  BUT WITHOUT
DETERMINING WHETHER THERE WAS EQUITY IN THE BILL (DOUGLAS V. JEANNETTE,
319 U.S. 157, 162-163) OR WHETHER, PURSUANT TO THE RULE OF RAILROAD
COMMISSION V. PULLMAN CO., 312 U.S. 496; CHICAGO V. FIELDCREST DAIRIES,
316 U.S. 168; SPECTOR MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101, THE CASE
SHOULD BE HELD UNTIL AN AUTHORITATIVE INTERPRETATION OF THE FLORIDA LAW
BY THE FLORIDA COURTS COULD FIRST BE OBTAINED, IT PROCEEDED AT ONCE TO
A CONSIDERATION OF THE CONSTITUTIONAL QUESTIONS.  IT HELD THAT THIS
FLORIDA LAW DID NOT VIOLATE THE FIRST OR FOURTEENTH AMENDMENT NOR THE
CONTRACT CLAUSE OF ARTICLE I, SEC. 10 OF THE FEDERAL CONSTITUTION.  IT
HELD THAT IT WOULD BE TIME TO CONSIDER ANY CONFLICT WITH THE NATIONAL
LABOR RELATIONS ACT IF AND WHEN IT AROSE, SINCE THAT ACT AND THE
FLORIDA LAW DID NOT ON THEIR FACES APPEAR TO BE IN CONFLICT.  IT
ACCORDINGLY VACATED THE TEMPORARY RESTRAINING ORDER AND DISMISSED THE
COMPLAINT.  60 F.SUPP.  1010.  THE CASE IS HERE ON APPEAL. 

THE INITIAL QUESTION IS WHETHER THE DISTRICT COURT HAD JURISDICTION
AS A FEDERAL COURT TO HEAR AND DECIDE THE MERITS.  FN5  THE FEDERAL
DISTRICT COURTS HAVE JURISDICTION OF ALL SUITS OF A CIVIL NATURE, AT
COMMON LAW OR IN EQUITY WHERE THE MATTER IN CONTROVERSY EXCEEDS,
EXCLUSIVE OF INTEREST AND COSTS, $3,000 AND "ARISES UNDER THE
CONSTITUTION OR LAWS OF THE UNITED STATES  ..."  JUDICIAL CODE SEC.
24(1), 28 U.S.C. SEC. 41(1).  THE ALLEGATIONS ARE THAT IF THE FLORIDA
LAW BECOMES EFFECTIVE THERE WILL BE AN IMMEDIATE DECREASE IN THE
MEMBERSHIP OF APPELLANT UNIONS AND THE DUES COLLECTED BY THEM WILL
DECREASE FAR IN EXCESS OF $3,000.  SIMILAR ALLEGATIONS ARE MADE TO THE
EFFECT THAT ENFORCEMENT OF THE FLORIDA LAW WILL RESULT IN SUCH
DECIMATION OF THE MEMBERSHIP OF THESE UNIONS, BOTH LOCAL AND NATIONAL,
AS TO CAUSE REDUCTION IN INCOME GREATLY IN EXCESS OF $3,000
JEOPARDIZING THE ABILITY OF THE UNIONS TO FUNCTION.  SUPPORTING
AFFIDAVITS WERE FILED BY A UNION OFFICIAL SHOWING THAT APPELLANT UNIONS
HAVE ABOUT 500 CONTRACTS WITH FLORIDA EMPLOYERS CONTAINING CLOSED-SHOP
AGREEMENTS AND AFFECTING ABOUT 100,000 EMPLOYEES; AND AVERRING THAT IF
THOSE CONTRACTS ARE NULLIFIED THE LOSS IN DUES WILL GREATLY EXCEED
$3,000, WITH RESULTING INJURY TO THE UNIONS FAR IN EXCESS OF THAT
AMOUNT.  THE ANSWER OF ONE OF THE APPELLEES, THE SHERIFF OF
HILLSBOROUGH COUNTY, ADMITTED THAT THE MATTER IN CONTROVERSY EXCEEDED
$3,000.  BUT, AS WE HAVE SAID, THE MOTION TO DISMISS FILED BY APPELLEE
WATSON CHALLENGED THE SHOWING OF THE NECESSARY JURISDICTIONAL AMOUNT. 
NO COUNTER AFFIDAVITS, HOWEVER, WERE FILED.  THE DISTRICT COURT HELD IT
HAD JURISDICTION UNDER SEC. 24(1) OF THE JUDICIAL CODE.  NONE OF THE
PARTIES CHALLENGES THAT FINDING HERE.  THE DISTRICT COURT ALSO HELD
THAT IT HAD JURISDICTION UNDER SEC. 24(14) OF THE JUDICIAL CODE, 28
U.S.C. SEC. 41(14).  THAT PROVISION  FN6  GIVES THE DISTRICT COURTS OF
THE UNITED STATES JURISDICTION OVER SUITS BROUGHT UNDER THE CIVIL
RIGHTS ACT  FN7  WITHOUT ALLEGATION OF ANY JURISDICTIONAL AMOUNT.  SEE
HAGUE V. C.I.O., 307 U.S. 496; DOUGLAS V. JEANNETTE, SUPRA, PP. 161
162.  WE DO NOT PASS ON THE QUESTION WHETHER THE DISTRICT COURT HAD
JURISDICTION UNDER SEC. 24(1) OR SEC. 24(14) OF THE JUDICIAL CODE.  FOR
IT IS THE VIEW OF A MAJORITY OF THE COURT THAT JURISDICTION IS FOUND IN
SEC. 24(8) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 41(8), WHICH GRANTS THE
FEDERAL DISTRICT COURTS JURISDICTION OF ALL "SUITS AND PROCEEDINGS
ARISING UNDER ANY LAW REGULATING COMMERCE."  AS WE HAVE SAID, THE BILL
ALLEGES A CONFLICT BETWEEN THE FLORIDA LAW AND THE NATIONAL LABOR
RELATIONS ACT.  THE THEORY OF THE BILL IS THAT LABOR UNIONS, CERTIFIED
AS COLLECTIVE BARGAINING REPRESENTATIVES OF EMPLOYEES UNDER THAT ACT,
ARE GRANTED AS A MATTER OF FEDERAL LAW THE RIGHT TO USE THE CLOSED-SHOP
AGREEMENT N8 OR, ALTERNATIVELY, THAT THE RIGHT OF COLLECTIVE BARGAINING
GRANTED BY THAT ACT INCLUDES THE RIGHT TO BARGAIN COLLECTIVELY FOR A
CLOSED SHOP.  WHETHER THAT CLAIM IS CORRECT IS A QUESTION WHICH GOES TO
THE MERITS.  IT IS, HOWEVER, A SUBSTANTIAL ONE.  AND SINCE THE RIGHT
ASSERTED IS DERIVED FROM OR RECOGNIZED BY A FEDERAL LAW REGULATING
COMMERCE, A MAJORITY OF THE COURT CONCLUDE THAT A SUIT TO PROTECT IT
AGAINST IMPAIRMENT BY STATE ACTION IS A SUIT "ARISING UNDER" A FEDERAL
LAW "REGULATING COMMERCE."  CF. MULFORD V. SMITH, 307 U.S. 38, 46;
PEYTON V. RAILWAY EXPRESS AGENCY, 316 U.S. 350; PARKER V. BROWN, 317
U.S. 341, 349; TUNSTALL V. BROTHERHOOD OF FIREMEN, 323 U.S. 210, 213. 

ANOTHER PRELIMINARY QUESTION IS WHETHER THIS IS A PROPER CASE FOR A
THREE-JUDGE COURT.  THE STATUTE PROVIDES THAT ONLY A THREE-JUDGE COURT
MAY ISSUE AN INTERLOCUTORY INJUNCTION SUSPENDING OR RESTRAINING "THE
ENFORCEMENT, OPERATION, OR EXECUTION OF ANY STATUTE OF A STATE BY
RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT
OR EXECUTION OF SUCH STATUTE  ..."  SEC. 266 OF THE JUDICIAL CODE, 28
U.S.C. SEC. 380.  THE QUESTION IS WHETHER WITHIN THE MEANING OF THAT
PROVISIONS OF STATE CONSTITUTIONS AS WELL.  IT IS SOMETIMES USED TO
EMBRACE ALL ENACTMENTS, HOWEVER ADOPTED, TO WHICH A STATE GIVES THE
FORCE OF LAW.  SEE STEVENS V. GRIFFITH, 111 U.S. 48, 50.  IN SPEAKING
OF SEC. 266 WE RECENTLY SAID, 

"TO BRING THIS PROCEDURAL DEVICE INTO PLAY - TO DISLOCATE THE NORMAL
OPERATIONS OF THE SYSTEM OF LOWER FEDERAL COURTS AND THEREAFTER TO COME
DIRECTLY TO THIS COURT - REQUIRES A SUIT WHICH SEEKS TO INTERPOSE THE
CONSTITUTION AGAINST ENFORCEMENT OF A STATE POLICY, WHETHER SUCH POLICY
IS DEFINED IN A STATE CONSTITUTION OR IN AN ORDINARY STATUTE OR THROUGH
THE DELEGATED LEGISLATION OF AN 'ADMINISTRATIVE BOARD OR COMMISSION.' 
THE CRUX OF THE BUSINESS IS PROCEDURAL PROTECTION AGAINST AN
IMPROVIDENT STATE-WIDE DOOM BY A FEDERAL COURT OF A STATE'S LEGISLATIVE
POLICY.  THIS WAS THE AIM OR CONGRESS AND THIS IS THE RECONCILING
PRINCIPLE OF THE CASES." 

PHILLIPS V. UNITED STATES, 312 U.S. 246, 251.  AND SEE STERLING V.
CONSTANTIN, 287 U.S. 378, 393.  IT WOULD, AS THE COURT BELOW STATED, BE
SOMEWHAT INCONGRUOUS TO HOLD THAT A SINGLE JUDGE, WHILE PROHIBITED FROM
ENJOINING ACTION UNDER AN ACT OF THE STATE LEGISLATURE, WOULD BE FREE
TO ACT IF THE STATE CONSTITUTION ALONE WERE INVOLVED.  THE POLICY
UNDERLYING SEC. 266 ADMITS NO DISTINCTION BETWEEN STATE ACTION TO
ENFORCE A CONSTITUTIONAL PROVISION AND STATE ACTION TO ENFORCE AN ACT
OF THE LEGISLATURE.  THERE IS NO SUGGESTION IN THE HISTORY OF SEC. 266
THAT CONGRESS WAS WILLING TO GIVE THE FEDERAL COURTS A FREER HAND WHEN
STATE CONSTITUTIONAL PROVISIONS WERE INVOLVED.  IN OUR VIEW THE WORD
"STATUTE" IN SEC. 266 IS A COMPENDIOUS SUMMARY OF VARIOUS ENACTMENTS,
BY WHATEVER METHOD THEY MAY BE ADOPTED, TO WHICH A STATE GIVES HER
SANCTION AND IS AT LEAST SUFFICIENTLY INCLUSIVE TO EMBRACE
CONSTITUTIONAL PROVISIONS.    BUT EVEN THOUGH A DISTRICT COURT HAS
AUTHORITY TO HEAR AND DECIDE THE CASE ON THE MERITS, IT SHOULD NOT
INVOKE ITS POWERS UNLESS THOSE WHO SEEK ITS AID HAVE A CAUSE OF ACTION
IN EQUITY.  DOUGLAS V. JEANNETTE, SUPRA, PP. 162-163.  THE POWER OF A
COURT OF EQUITY TO ACT IS A DISCRETIONARY ONE.  PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176, 185.  WHERE A FEDERAL COURT OF EQUITY IS ASKED
TO INTERFERE WITH THE ENFORCEMENT OF STATE LAWS, IT SHOULD DO SO ONLY
"TO PREVENT IRREPARABLE INJURY WHICH IS CLEAR AND IMMINENT  ..." 
DOUGLAS V. JEANNETTE, SUPRA, P. 163; SPIELMAN MOTOR CO. V. DODGE, 295
U.S. 89; DI GIOVANNI V. CAMDEN FIRE INS. ASSN., 296 U.S. 64; WATSON V.
BUCK, 313 U.S. 387. 

THAT IS A STRICT TEST.  BUT WE THINK APPELLANTS SATISFY IT.  WE REACH
THAT CONCLUSION ON THE BASIS OF THE ALLEGATIONS CONCERNING THE
DISRUPTION OF THE COLLECTIVE BARGAINING PROCESSES AND THE INJURY TO THE
UNIONS AND TO THE EMPLOYERS ALIKE, IF THE CLOSED-SHOP AGREEMENT IS
OUTLAWED.  AS WE HAVE SAID, IT IS AVERRED THAT THERE ARE ABOUT 500
CONTRACTS WITH FLORIDA EMPLOYERS CONTAINING CLOSED-SHOP AGREEMENTS AND
AFFECTING ABOUT 100,000 EMPLOYEES.  EACH CONTRACT IS AFFECTED IF THE
CLOSED-SHOP AGREEMENT IS HELD UNLAWFUL.  SOME OF THOSE CONTRACTS HAVE
EXPIRED AND IT IS DESIRED TO RENEW THEM.  OTHERS ARE SOUGHT TO BE
NEGOTIATED.  THUS, IN CASE OF PLAINTIFF, R. J. GOULD, IT IS ALLEGED
THAT ALTHOUGH HE IS ANXIOUS AND WILLING TO ENTER INTO SUCH A CONTRACT,
HE IS PREVENTED FROM DOING SO BY THE THREATS OF APPELLEES.  AS A
RESULT, IT IS ALLEGED, HE IS AND HAS BEEN UNABLE TO SECURE SUFFICIENT
SKILLED LABOR TO CONDUCT HIS BUSINESS.  IT IS ALLEGED THAT THERE ARE
NUMEROUS OTHER SITUATIONS OF THE SAME CHARACTER.  AND IT IS SHOWN THAT
ONE EMPLOYER, AGAINST WHOM QUO WARRANTO PROCEEDINGS HAVE BEEN
INSTITUTED, ALREADY HAS GIVEN NOTICE OF THE SUSPENSION OF THE CLOSED
SHOP AGREEMENT WHICH IT HAD WITH ONE OF THE APPELLANT UNIONS. 
ALLEGATIONS ARE MADE THAT OUTLAWRY OF CLOSED-SHOP AGREEMENTS WILL CAUSE
A DISRUPTION IN PRODUCTION AND THE DECIMATION OF UNION MEMBERSHIP.  IT
IS FAIR TO SAY ON A READING OF THE BILL THAT FROM THE VIEWPOINT BOTH OF
THE APPELLANT UNIONS AND THE APPELLANT EMPLOYERS THE DISRUPTION IN
COLLECTIVE BARGAINING WHICH WOULD BE OCCASIONED BY HOLDING CLOSED-SHOP
AGREEMENTS ILLEGAL WOULD BE SO SERIOUS AS TO MAKE IT FUTILE TO ATTEMPT
TO MEASURE THE LOSS IN MONEY DAMAGES.  THE ALLEGATIONS CERTAINLY STATE
A CAUSE OF ACTION IN EQUITY NO LESS CLEAR THAN THAT SUSTAINED IN UTAH
FUEL CO. V. NATIONAL BITUMINOUS COAL COMM'N, 306 U.S. 56.  THE LOSS IN
BARGAINING POSITION BY THE UNIONS, THE DISRUPTION OF HARMONIOUS
RELATIONSHIPS BETWEEN THE UNION AND THE EMPLOYERS, THE ALMOST CERTAIN
DECREASE IN UNION MEMBERSHIP - THESE ARE MATTERS INVOLVING INTANGIBLE
VALUES.  SEC. 267 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 384, FORBIDS THE
MAINTENANCE OF SUITS IN EQUITY IN THE COURTS OF THE UNITED STATES "IN
ANY CASE WHERE A PLAIN, ADEQUATE, AND COMPLETE REMEDY MAY BE HAD AT
LAW."  BUT IN VIEW OF THE CHARACTER OF THE INTANGIBLE INTERESTS AT
STAKE, WE CANNOT SEE HOW ANY REMEDY AT LAW IN THE FEDERAL COURTS  FN9
WOULD BE ADEQUATE A LEGAL CAUSE OF ACTION IN THE FEDERAL COURTS, WHICH
INVOLVES THE POINT, MAY BE SLOW IN DEVELOPING.  MEANWHILE, COLLECTIVE
BARGAINING OF THE KIND ALLEGED TO BE PERMITTED OR SECURED BY THE
NATIONAL LABOR RELATIONS ACT MAY BE DISASTROUSLY AFFECTED.  WE, OF
COURSE, DO NOT INTIMATE AN OPINION ON THE QUESTION WHETHER THE ALLEGED
CONFLICT EXISTS.  WHETHER THE BILL MAKES OUT A CASE TO DETERMINE THE
ISSUE IS THE ONLY QUESTION NOW BEFORE US. 

MOREOVER, THE THREAT TO ENFORCE THE FLORIDA LAW IS REAL AND
IMMINENT.  QUO WARRANTO PROCEEDINGS HAVE BEEN INSTITUTED AGAINST
SEVERAL OF THE CORPORATIONS WHO ARE PARTIES TO THE SUIT ON THE BASIS
THAT THEY HAVE CLOSED-SHOP AGREEMENTS WITH THE UNIONS.  AND APPELLEE
WATSON HAS ANNOUNCED A POLICY TO PROSECUTE CRIMINALLY ALL VIOLATORS OF
THE FLORIDA LAW.  THE THREAT OF MULTIPLICITY OF PROSECUTIONS WHICH IS
HERE ALLEGED WOULD NOT ALONE BE SUFFICIENT TO ESTABLISH A CAUSE OF
ACTION IN EQUITY.  MATTHEWS V. RODGERS, 284 U.S. 521, 529-530; SPIELMAN
MOTOR CO. V. DODGE, SUPRA; BEAL V. MISSOURI PACIFIC R. CO., 312 U.S.
45, 49-50; DOUGLAS V. JEANNETTE, SUPRA, PP. 163-165.  BUT WE MENTION
THE MATTER HERE TO SHOW THAT THE THREAT OF IRREPARABLE INJURY IS REAL
NOT FANCIFUL, IMMEDIATE NOT REMOTE.  THE CRUX OF THE MATTER IS THE
ALLEGATION THAT THERE IS AN IMMINENT THREAT TO AN ENTIRE SYSTEM OF
COLLECTIVE BARGAINING, A THREAT WHICH, IF CARRIED THROUGH, WILL HAVE
SUCH REPERCUSSIONS ON THE RELATIONSHIP BETWEEN CAPITAL AND LABOR AS TO
CAUSE IRREPARABLE DAMAGE.  WE CONCLUDE FOR THAT REASON THAT THE BILL
STATES A CAUSE OF ACTION IN EQUITY.  FN10 

AS WE HAVE SAID, THE DISTRICT COURT PASSED ON THE MERITS OF THE
CONTROVERSY.  IN DOING SO AT THIS STAGE OF THE LITIGATION, WE THINK IT
DID NOT FOLLOW THE PROPER COURSE.  THE MERITS INVOLVE SUBSTANTIAL
CONSTITUTIONAL ISSUES CONCERNING THE MEANING OF A NEW PROVISION OF THE
FLORIDA CONSTITUTION WHICH, SO FAR AS WE ARE ADVISED, HAS NEVER BEEN
CONSTRUED BY THE FLORIDA COURTS.  THOSE COURTS HAVE THE FINAL SAY AS TO
ITS MEANING.  WHEN AUTHORITATIVELY CONSTRUED, IT MAY OR MAY NOT HAVE
THE MEANING OR FORCE WHICH APPELLEES NOW ASSUME THAT IT HAS.  IN
ABSENCE OF AN AUTHORITATIVE INTERPRETATION, IT IS IMPOSSIBLE TO KNOW
WITH CERTAINTY WHAT CONSTITUTIONAL ISSUES WILL FINALLY EMERGE.  WHAT
WOULD NOW BE WRITTEN ON THE CONSTITUTIONAL QUESTIONS MIGHT THEREFORE
TURN OUT TO BE AN ACADEMIC AND NEEDLESS DISSERTATION. 

THERE IS, IN THE FIRST PLACE, SOME QUESTION WHETHER THIS NEW
PROVISION OF FLORIDA'S CONSTITUTION IS SELF-EXECUTING  FN11  OR
REQUIRES LEGISLATION FOR ITS ENFORCEMENT.  FN12  THE DISTRICT COURT
ITSELF TOOK THE VIEW THAT IT IS NOT SELF-EXECUTING AND NOTED THAT NO
ENFORCING LEGISLATION HAS BEEN ENACTED.  IF, ON THE OTHER HAND, IT BE
ASSUMED, AS FLORIDA'S ATTORNEY GENERAL ASSERTS, THAT THIS
CONSTITUTIONAL PROVISION IS SELF-EXECUTING, WE DO NOT KNOW WHAT
SANCTIONS FLORIDA WILL AFFORD FOR ITS ENFORCEMENT.  IT PROVIDES 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 ..."  IT IS ASSERTED THAT THIS PROVISION OUTLAWS THE
CLOSED-SHOP AGREEMENT AND MAKES THOSE WHO ENTER INTO ONE CRIMINALLY
LIABLE,  FN13  OR, IN CASE OF CORPORATIONS, SUBJECTS THEM TO QUO
WARRANTO PROCEEDINGS.  FN14  SO FAR AS WE KNOW, HOWEVER, IT MAY NOT
HAVE THAT EFFECT BUT DO NO MORE THAN GIVE TO AN INDIVIDUAL WORKING MAN
A CAUSE OF ACTION IN CASE THE RIGHTS GRANTED HIM ARE DENIED OR
ABRIDGED.  OR AS IN THE CASE OF CONTRACTS IN RESTRAINT OF TRADE AT
COMMON LAW, IT MAY MAKE CLOSED-SHOP AGREEMENTS UNLAWFUL ONLY IN THE
SENSE THAT COURTS WILL NOT ENFORCE THEM.  FN15 THE PROVISO ITSELF
RAISES QUESTIONS OF INTERPRETATION WHICH WHEN AUTHORITATIVELY SETTLED
MAY PUT THE CONSTITUTIONAL ISSUES NOW SOUGHT TO BE RAISED IN QUITE A
DIFFERENT LIGHT OR EVEN ELIMINATE SOME OF THEM.  THE PROVISO STATES THE
"THIS CLAUSE SHALL NOT BE CONSTRUED TO DENY OR ABRIDGE THE RIGHT OF
EMPLOYEES BY AND THROUGH A LABOR ORGANIZATION OR LABOR UNION TO BARGAIN
COLLECTIVELY WITH THEIR EMPLOYER."  THE BILL ALLEGES THAT THE RIGHT TO
BARGAIN COLLECTIVELY GRANTED BY THE NATIONAL LABOR RELATIONS ACT
INCLUDES THE RIGHT TO A CLOSED-SHOP AGREEMENT.  FN16  CONCEIVABLY THE
PROVISO MAY BE CONSTRUED TO MAKE THIS FLORIDA LAW APPLICABLE ONLY TO
ENTERPRISES NOT SUBJECT TO THE NATIONAL LABOR RELATIONS ACT.  OR THE
RIGHT TO BARGAIN COLLECTIVELY, RECOGNIZED BY THE PROVISO, MAY BE
CONSTRUED TO MEAN THE RIGHT WHICH IS GRANTED BY THE NATIONAL LABOR
RELATIONS ACT. 

WE GIVE THESE ILLUSTRATIONS TO INDICATE HOW UNCERTAIN IT IS WHAT
CONSTITUTIONAL ISSUES WILL EMERGE ONCE THE FLORIDA LAW RECEIVES AN
AUTHORITATIVE INTERPRETATION.  A DECISION TODAY ON THE
CONSTITUTIONALITY OF THIS FLORIDA LAW WOULD BE BASED ON A PRELIMINARY
GUESS CONCERNING ITS MEANING, NOT ON AN AUTHORITATIVE CONSTRUCTION OF
IT.  WE HAVE ALREADY NOTED THAT THIS LAW MAY BE SO CONSTRUED AS TO
ELIMINATE ANY CONFLICT ALLEGED TO EXIST BETWEEN IT AND THE NATIONAL
LABOR RELATIONS ACT.  IF SO, ONE OF THE CONSTITUTIONAL QUESTIONS
PRESENTED BY THIS CASE WOULD DISAPPEAR.  IT IS SUGGESTED, HOWEVER, THAT
THE DUE PROCESS QUESTION IS RIPE FOR ADJUDICATION NO MATTER HOW THE
FLORIDA LAW IS CONSTRUED.  BUT IF THE LAW DOES NO MORE THAN TO GRANT AN
INDIVIDUAL WORKING MAN A CAUSE OF ACTION IN CASE HE IS DENIED
EMPLOYMENT UNLESS HE JOINS A UNION, OR IF IT GOES NO FURTHER THAN TO
MAKE CLOSED-SHOP AGREEMENTS UNENFORCEABLE BETWEEN THE PARTIES, NO CASE
OR CONTROVERSY RAISING THE DUE PROCESS QUESTION WOULD BE PRESENTED FOR
DECISION BY THE PRESENT BILL.  FOR INDIVIDUAL WORKING MEN ARE NOT HERE
ASSERTING RIGHTS AGAINST UNIONS OR EMPLOYERS.  NOR DOES THE PRESENT
CASE INVOLVE LITIGATION BY UNIONS TO ENFORCE CLOSEDSHOP AGREEMENTS
AGAINST EMPLOYERS.  FURTHERMORE, IF, AS THE DISTRICT COURT THOUGHT,
THIS FLORIDA LAW IS NOT SELF-EXECUTING, SUITS SEEKING TO RAISE THE DUE
PROCESS QUESTION OR ANY OTHER CONSTITUTIONAL QUESTION WOULD BE
PREMATURE UNTIL FLORIDA SUPPLIED SANCTIONS FOR ITS ENFORCEMENT.  A
DECISION TODAY ON THE MERITS MIGHT, THEREFORE, AMOUNT TO NO MORE THAN
AN ADVISORY OPINION.  IN RAILROAD COMMISSION V. PULLMAN CO., SUPRA;
CHICAGO V. FIELDCREST DAIRIES, SUPRA; AND SPECTOR MOTOR CO. V.
MCLAUGHLIN, SUPRA, WE HELD THAT UNDER SUCH CIRCUMSTANCES THE PROPER
COURSE WAS FOR THE DISTRICT COURT TO RETAIN THE BILL UNTIL A DEFINITE
DETERMINATION OF THE LOCAL LAW QUESTIONS COULD BE MADE BY THE STATE
COURTS.  THE DOUBTS CONCERNING THE MEANING OF THE FLORIDA LAW INDICATE
THAT SUCH A PROCEDURE IS PECULIARLY APPROPRIATE HERE.  QUO WARRANTO
PROCEEDINGS PRESENTLY PENDING IN THE FLORIDA COURTS MAY RESOLVE THE
DOUBTS.  AND OTHER ACTIONS, SUCH AS SUITS FOR A DECLARATORY JUDGMENT,
FN17  WOULD SEEM TO BE AVAILABLE IN THE STATE COURTS. 

IT IS SAID THAT SINCE THE CONTINUANCE OF LITIGATION IN THE STATE
COURTS IS THE ONLY GROUND ASSERTED FOR EQUITABLE RELIEF, THE ENTIRE
PURPOSE OF THE PRESENT SUIT WILL BE DEFEATED BY RETAINING THE BILL
PENDING DETERMINATION OF PROCEEDINGS IN THE STATE COURTS.  BUT THE
PROBLEM IS NOT UNIQUE.  IT WAS IMPLICIT IN RAILROAD COMMISSION V.
PULLMAN CO., SUPRA.  MOREOVER, THE CASE FOR EQUITABLE RELIEF RESTS NOT
MERELY ON THE PRESENCE OF A FEW CASES IN THE STATE COURTS BUT ALSO ON
THE THREAT OF WHOLESALE PROSECUTIONS UNDER A STATE LAW WHICH THE CHIEF
LAW ENFORCEMENT OFFICIAL OF THE STATE MAINTAINS OUTLAWS CONTRACTS FOR
COLLECTIVE BARGAINING WHICH LABOR AND MANAGEMENT HAVE WIDELY MADE.  THE
RESOURCES OF EQUITY ARE NOT INADEQUATE TO DEAL WITH THE PROBLEM SO AS
TO AVOID UNNECESSARY FRICTION WITH STATE POLICIES, WHILE SELECTIVE
CASES GO FORWARD IN THE STATE COURTS FOR AN ORDERLY AND EXPEDITIOUS
ADJUDICATION OF THE STATE LAW QUESTIONS. 

WE REVERSE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE CAUSE TO
IT WITH DIRECTIONS TO RETAIN THE BILL PENDING THE DETERMINATION OF
PROCEEDINGS IN THE STATE COURTS IN CONFORMITY WITH THIS OPINION. 

BY CONSENT OF THE PARTIES THE CIGAR MANUFACTURERS ASSOCIATION OF
TAMPA WAS DISMISSED AS A PARTY DEFENDANT IN THE DISTRICT COURT. 
ACCORDINGLY, ITS MOTION TO DISMISS THIS APPEAL AS AGAINST IT IS
GRANTED.  SO ORDERED. 

FN1  THE AMENDMENT, DESIGNATED AS HOUSE JOINT RESOLUTION NO. 13, WAS
PASSED BY THE REGULAR SESSION OF THE LEGISLATURE IN 1943(L. 1943, P.
1134) AND WAS RATIFIED BY THE PEOPLE AT THE GENERAL ELECTION HELD ON
NOVEMBER 7, 1944. 

FN2  MCCLOSKEY & CO., A DELAWARE CORPORATION IN THE BUSINESS OF
BUILDING SHIPS AT TAMPA, FLORIDA; R.J. GOULD, ENGAGED IN GENERAL
WELDING AND STRUCTURAL STEEL BUILDING WORK IN TAMPA, FLORIDA, AND DOING
BUSINESS UNDER THE NAME OF GOULD WELDING & ERECTING CO.; TAMPA FLORIDA
BREWERY, INC., A FLORIDA CORPORATION, ENGAGED IN THE BREWERY BUSINESS
AT TAMPA, FLORIDA. 

FN3  TAMPA SHIPBUILDING CO. AND ST. JOHNS RIVER SHIPBUILDING CO.,
FLORIDA CORPORATIONS, ENGAGED IN THE BUILDING AND CONSTRUCTION OF SHIPS
AT FLORIDA PORTS; WEIR'S DRY CLEANERS & LAUNDRY, INC., A FLORIDA
CORPORATION, ENGAGED IN THE DRY CLEANING AND LAUNDRY BUSINESS IN TAMPA,
FLORIDA; NATIONAL CONTAINER CORP., A FLORIDA CORPORATION, MANUFACTURING
PAPER CONTAINERS IN JACKSONVILLE, FLORIDA; CIGAR MANUFACTURERS ASSOC.
OF TAMPA, A VOLUNTARY ASSOCIATION OF TAMPA CIGAR MANUFACTURERS. 

THESE PARTIES WERE JOINED AS DEFENDANTS BECAUSE THEY HAD COLLECTIVE
BARGAINING AGREEMENTS WITH VARIOUS OF APPELLANT LABOR ORGANIZATIONS. 
THEY ARE CALLED NOMINAL DEFENDANTS SINCE NO RELIEF WAS SOUGHT AGAINST
THEM. 

FN4  IT IS ALLEGED THAT SOME OF THESE AGREEMENTS ARE FOR PERIODS OF
ONE YEAR WITH AUTOMATIC RENEWAL CLAUSES FOR ADDITIONAL ONE-YEAR
PERIODS, OTHERS FOR PERIODS OF YEARS UP TO FIVE, SOME FOR THE DURATION
OF THE WAR, AND OTHERS FOR PERIODS ABOUT TO EXPIRE. 

THE CONSTITUTIONS OF SOME OF THE APPELLANT UNIONS REQUIRE THAT ALL
PERSONS WHO DESIRE TO OBTAIN OR RETAIN MEMBERSHIPS IN THE UNIONS SHALL
WORK ONLY WITH UNION MEMBERS. 

IT IS ALLEGED THAT MEMBERSHIP IN APPELLANT UNIONS IS OPEN TO ALL WHO
CAN MEET THE REQUIREMENTS OF SKILL PRESCRIBED FOR THE WORK, WHO WILL
SUBMIT TO THE DISCIPLINE AND BY-LAWS OF THE UNIONS, AND WHO ARE OF GOOD
CHARACTER. 

FN5  THE CASE HAS NOT BEEN ARGUED ON THE MERITS HERE, AS WE LIMITED
THE ARGUMENT, WHEN WE NOTED PROBABLE JURISDICTION, TO JURISDICTIONAL
QUESTIONS.    FN6  IT PROVIDES THAT THE DISTRICT COURTS SHALL HAVE
ORIGINAL JURISDICTION "OF ALL SUITS AT LAW OR IN EQUITY AUTHORIZED BY
LAW TO BE BROUGHT BY ANY PERSON TO REDRESS THE DEPRIVATION, UNDER COLOR
OF ANY LAW, STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE, OF ANY
STATE, OF ANY RIGHT, PRIVILEGE, OR IMMUNITY, SECURED BY THE
CONSTITUTION OF THE UNITED STATES, OR OF ANY RIGHT SECURED BY ANY LAW
OF THE UNITED STATES PROVIDING FOR EQUAL RIGHTS OF CITIZENS OF THE
UNITED STATES, OR OF ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED
STATES." 

FN7  SEC. 1 OF THE CIVIL RIGHTS ACT OF APRIL 20, 1871, 17 STAT. 13,
HAS BEEN CONTINUED WITHOUT SUBSTANTIAL CHANGE AS R.S. SEC. 1979, 8
U.S.C. SEC. 43, WHICH READS AS FOLLOWS:  "EVERY PERSON WHO, UNDER COLOR
OF ANY STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE, OF ANY STATE
OR TERRITORY, SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE
UNITED STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO THE
DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED IN AN
ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR
REDRESS." 

FN8  SEC. 8(3) OF THAT ACT PROVIDES THAT "NOTHING IN THIS ACT  ...
OR IN ANY OTHER STATUTE OF THE UNITED STATES, SHALL PRECLUDE AN
EMPLOYER FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION (NOT
ESTABLISHED, MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN THIS ACT
AS AN UNFAIR LABOR PRACTICE) TO REQUIRE AS A CONDITION OF EMPLOYMENT
MEMBERSHIP THEREIN, IF SUCH LABOR ORGANIZATION IS THE REPRESENTATIVE OF
THE EMPLOYEES AS PROVIDED IN SECTION 9(A), IN THE APPROPRIATE
COLLECTIVE BARGAINING UNIT COVERED BY SUCH AGREEMENT WHEN MADE." 

FN9  THE INADEQUACY OF THE RELIEF AT LAW IS MEASURED BY THE CHARACTER
OF THE RELIEF AFFORDED BY THE FEDERAL NOT THE STATE COURTS.  DI
GIOVANNI V. CAMDEN FIRE INS. ASSN., SUPRA, P. 69. 

FN10  WE DO NOT PASS ON THE QUESTION WHETHER AN INTERLOCUTORY
INJUNCTION SHOULD ISSUE.  THAT WILL BE OPEN ON OUR REMAND OF THE
CAUSE.  SEC. 266 PROVIDES IN PART:  "IF OF OPINION THAT IRREPARABLE
LOSS OR DAMAGE WOULD RESULT TO THE COMPLAINANT UNLESS A TEMPORARY
RESTRAINING ORDER IS GRANTED, ANY JUSTICE OF THE SUPREME COURT, OR ANY
CIRCUIT OR DISTRICT JUDGE, MAY GRANT SUCH TEMPORARY RESTRAINING ORDER
AT ANY TIME BEFORE SUCH HEARING AND DETERMINATION OF THE APPLICATION
FOR AN INTERLOCUTORY INJUNCTION, BUT SUCH TEMPORARY RESTRAINING ORDER
SHALL REMAIN IN FORCE ONLY UNTIL THE HEARING AND DETERMINATION OF THE
APPLICATION FOR AN INTERLOCUTORY INJUNCTION UPON NOTICE AS AFORESAID. 
THE HEARING UPON SUCH APPLICATION FOR AN INTERLOCUTORY INJUNCTION SHALL
BE GIVEN PRECEDENCE AND SHALL BE IN EVERY WAY EXPEDITED AND BE ASSIGNED
FOR A HEARING AT THE EARLIEST PRACTICABLE DAY AFTER THE EXPIRATION OF
THE NOTICE HEREINBEFORE PROVIDED FOR.  AN APPEAL MAY BE TAKEN DIRECT TO
THE SUPREME COURT OF THE UNITED STATES FROM THE ORDER GRANTING OR
DENYING, AFTER NOTICE AND HEARING, AN INTERLOCUTORY INJUNCTION IN SUCH
CASE."  AS TO THE FINDINGS NECESSARY TO SUPPORT SUCH RELIEF, SEE
LAWRENCE V. ST. LOUIS-SAN FRANCISCO R. CO., 274 U.S. 588, 595-596; MAYO
V. LAKELAND HIGHLANDS CANNING CO., 309 U.S. 310. 

FN11  TAMPA V. TAMPA WATERWORKS CO., 45 FLA. 600, 628-629, 34 SO.
631; COLEMAN V. STATE, 118 FLA. 201, 159 SO. 504; LUMMUS V. MIAMI BEACH
CONGREGATIONAL CHURCH, 142 FLA. 657, 195 SO. 607. 

FN12  SEE PORTER V. FIRST NATIONAL BANK, 96 FLA. 740, 119 SO. 130,
519; STATE V. ALSOP, 120 FLA. 628, 163 SO. 80; STATE V. JONES, 121 FLA.
216, 163 SO. 590; DRAUGHON V. HEITMAN, 124 FLA. 24, 168 SO. 838; STATE
V. EMERSON, 126 FLA. 576, 171 SO. 663; AMERICAN BAKERIES CO. V. HAINES
CITY, 131 FLA. 790, 180 SO. 524; MIAMI V. STATE, 139 FLA. 598, 190 SO.
774; BRYAN V. MIAMI, 139 FLA. 650, 190 SO. 772. 

FN13  HERE, TOO, THERE IS DOUBT WHETHER THE CONSTITUTIONAL PROVISION
IS SELF-EXECUTING.  APPELLEE WATSON APPARENTLY TAKES THE POSITION THAT
THOSE WHO ENTER INTO CLOSED-SHOP AGREEMENTS VIOLATE AN OLD FLORIDA
STATUTE (22 FLA. STATS. ANN. SEC. 833.02) WHICH PROVIDES:  "IF TWO OR
MORE PERSONS SHALL AGREE, CONSPIRE, COMBINE OR CONFEDERATE TOGETHER FOR
THE PURPOSE OF PREVENTING ANY PERSON FROM PROCURING WORK IN ANY FIRM OR
CORPORATION, OR TO CAUSE THE DISCHARGE OF ANY PERSON FROM WORK IN SUCH
FIRM OR CORPORATION; OR IF ANY PERSON SHALL VERBALLY OR BY WRITTEN OR
PRINTED COMMUNICATION, THREATEN ANY INJURY TO LIFE, PROPERTY OR
BUSINESS OF ANY PERSON FOR THE PURPOSE OF PROCURING THE DISCHARGE OF
ANY WORKMAN IN ANY FIRM OR CORPORATION, OR TO PREVENT ANY PERSON FROM
PROCURING WORK IN SUCH FIRM OR CORPORATION, SUCH PERSONS SO COMBINING
SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND UPON CONVICTION THEREOF,
SHALL BE PUNISHED BY FINE NOT EXCEEDING FIVE HUNDRED DOLLARS EACH, OR
BY IMPRISONMENT NOT EXCEEDING ONE YEAR."  BUT IN JETTON-DEKLE LUMBER
CO. V. MATHER, 53 FLA. 969, 43 SO. 590, THE SUPREME COURT OF FLORIDA
SAID THAT THAT STATUTE "WILL NOT BE APPLIED TO THE CASE OF UNION
LABORERS WHO STRIKE IN ORDER TO SECURE ALL THE LABOR FOR THEMSELVES." 

FN14  ON QUO WARRANTO UNDER FLORIDA LAW SEE STATE V. TAMPA WATER
WORKS CO., 57 FLA. 533, 48 SO. 639; STATE V. DUVAL COUNTY, 105 FLA.
174, 141 SO. 173; STATE V. PREVATT, 110 FLA. 29, 148 SO. 578; STATE V.
S.H. KRESS & CO., 115 FLA. 189, 155 SO. 823. 

FN15  SEE MOGUL STEAMSHIP CO. V. MCGREGOR, GOW & CO., (1892) A.C. 25,
39; ATTORNEY GENERAL V. ADELAIDE STEAMSHIP CO., (1913) A.C. 781, 797. 

FN16  SEE NOTE 8, SUPRA. 

FN17  SEE 5 FLA. STATS. ANN., SEC. 62.09; SHELDON V. POWELL, 99 FLA.
782, 128 SO. 258. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE STONE, DISSENTING. 

I THINK THE SUIT SHOULD BE DISMISSED FOR WANT OF JURISDICTION IN
EQUITY. 

A CRIMINAL PROSECUTION OR OTHER LITIGATION CONDUCTED IN STATE COURTS
BY A STATE OFFICIAL, WITHIN THE SCOPE OF HIS AUTHORITY AS SUCH, MAY, IT
IS TRUE, CAUSE APPREHENSION ON THE PART OF THOSE WHO ARE ALLEGED TO BE
LAWBREAKERS.  SUCH APPREHENSIONS AND THOSE OF OTHERS MAY LEAD TO
CHANGES IN BUSINESS PRACTICES TO THE INJURY OF THE ALLEGED
LAWBREAKERS.  BUT THE CONDUCT OF SUCH PROCEEDINGS, IN GOOD FAITH AND IN
CONFORMITY TO LAW, IS NOT ACTIONABLE AT LAW OR IN EQUITY.  DAMAGE OR
LOSS TO ONE'S BUSINESS OR POCKETBOOK, RESULTING FROM SUCH PROCEEDINGS,
IS BUT AN INCIDENT TO THE NECESSARY PERFORMANCE OF A PUBLIC FUNCTION OF
STATE GOVERNMENT.  IT IS DAMNUM ABSQUE INJURIA.  SPIELMAN MOTOR CO. V.
DODGE, 295 U.S. 89, 95, AND CASES CITED; BEAL V. MISSOURI PACIFIC R.
CO., 312 U.S. 45, 49, 50, AND CASES CITED.  AND EVEN WHEN THE
THREATENED INJURY IS ATTRIBUTABLE TO THE STATE COURT PROCEEDING TO
ENFORCE A STATE STATUTE WHICH IS ASSERTED TO BE UNCONSTITUTIONAL, IT
DOES NOT FOLLOW THAT EQUITY WILL OR SHOULD EXERCISE ITS JURISDICTION TO
RESTRAIN THE PROSECUTION. 

CONGRESS HAS ADOPTED THE POLICY OF LEAVING TO THE COURTS OF THE
STATES THE TRIALS FOR CRIMINAL VIOLATIONS OF STATE LAW AND OF QUO
WARRANTO PROCEEDINGS AGAINST THEIR OWN CORPORATIONS.  FEDERAL COURTS OF
EQUITY, IN THE EXERCISE OF THEIR SOUND DISCRETION, CONFORM TO THAT
POLICY BY REFUSING TO INTERFERE WITH PROCEEDINGS IN THE STATE COURTS
EXCEPT WHERE UNUSUAL CIRCUMSTANCES CLEARLY CALL FOR EQUITABLE RELIEF. 
HENCE IT IS WELL RECOGNIZED THAT MEASURES TAKEN BY STATE OFFICIALS TO
ENFORCE STATE LAWS SAID TO BE UNCONSTITUTIONAL MAY BE ENJOINED BY
FEDERAL COURTS ONLY TO PREVENT "IRREPARABLE INJURY," AND NOT MERELY TO
AVOID THAT HARM WHICH IS INSEPARABLE FROM THE LITIGATION OF THE MOOTED
ISSUES WHETHER IN A STATE OR A FEDERAL COURT.  EX PARTE YOUNG, 209 U.S.
123, 155, 156, 166; CAVANAUGH V. LOONEY, 248 U.S. 453, 456; HYGRADE
PROVISION CO. V. SHERMAN, 266 U.S. 497, 500; FENNER V. BOYKIN, 271 U.S.
240, 243; MASSACHUSETTS STATE GRANGE V. BENTON, 272 U.S. 525, 527;
SPIELMAN MOTOR CO. V. DODGE, SUPRA; DI GIOVANNI V. CAMDEN FIRE INS.
ASSN., 296 U.S. 64; DOUGLAS V. JEANNETTE, 319 U.S. 157, AND CASES
CITED.  IT IS NOT ENOUGH TO SHOW THAT THE INJURY TO APPELLANTS IS ONLY
THAT WHICH IS A NORMAL INCIDENT OF THE STATE'S ASSERTION OF ITS
AUTHORITY TO ENFORCE ITS LAWS.  NO PERSON IS IMMUNE FROM ANY GOOD FAITH
PROSECUTION BY THE STATE FOR HIS UNLAWFUL ACTS.  NEITHER THE IMMINENCE
OF THE PROSECUTION NOR THE INCIDENTAL INJURY WHICH MAY FLOW FROM IT IS
A GROUND FOR EQUITY RELIEF, SINCE THE CONSTITUTIONALITY OF THE STATUTE
MAY BE ASCERTAINED BY THE PROCEEDING IN THE STATE COURTS WITH APPELLATE
REVIEW BY THIS COURT, AS READILY AS BY A SUIT IN THE FEDERAL COURTS. 
SPIELMAN MOTOR CO. V. DODGE, SUPRA, 95, AND CASES CITED; BEAL V.
MISSOURI PACIFIC R. CO., SUPRA, 49, AND CASES CITED; WATSON V. BUCK,
313 U.S. 387; WILLIAMS V. MILLER, 317 U.S. 599; DOUGLAS V. JEANNETTE,
SUPRA. 

UNTIL THE STATE QUESTIONS HERE MOOTED ARE AUTHORITATIVELY SETTLED BY
THE STATE COURTS, AND THE CONSTITUTIONAL QUESTIONS WHICH IT IS ASSERTED
THEY RAISE ARE SETTLED BY THIS COURT, THE THREAT TO THE CLOSED SHOP
WILL CONTINUE TO EMBARRASS LABOR UNIONS AND EMPLOYERS WHO HAVE OR SEEK
TO HAVE CLOSED-SHOP CONTRACTS.  THAT EMBARRASSMENT CAN BE REMOVED ONLY
BY THE PROCESS OF ADJUDICATION WHICH THE STATE IS CONSTITUTIONALLY
ENTITLED TO PURSUE, SO LONG AS THE STATE AND ITS OFFICIALS PROCEED
ACCORDING TO LAW.  DAVIS & FARNUM MFG. CO. V. LOS ANGELES, 189 U.S.
207; FENNER V. BOYKIN, SUPRA; SPIELMAN MOTOR CO. V. DODGE, SUPRA, 95. 
HENCE THE ARREST BY FEDERAL COURTS OF THE PROCESSES OF THE CIVIL OR
CRIMINAL LAW OF THE STATE, AND THE DETERMINATION OF QUESTIONS OF CIVIL
OR CRIMINAL LIABILITY UNDER STATE LAW, MUST BE PREDICATED NOT ONLY UPON
A SHOWING OF UNLAWFUL OR UNCONSTITUTIONAL ACTION ON THE PART OF THE
STATE, BUT UPON SOME SHOWING OF A RESULTING IMMEDIATE AND IRREPARABLE
INJURY WHICH CAN BE AVOIDED OR PREVENTED ONLY BY THE FEDERAL COURT'S
TRANSFERRING THE TRIAL OF THE STATE QUESTIONS FROM THE STATE COURTS TO
ITSELF.  DOUGLAS V. JEANNETTE, SUPRA, 164. 

THERE IS NO CONTENTION HERE THAT THE STATE OFFICIALS ARE ACTING
OUTSIDE THEIR AUTHORITY AS SUCH, THAT THEY ARE NOT ACTING IN GOOD
FAITH, BEAL V. MISSOURI PACIFIC R. CO., SUPRA, 49; DOUGLAS V.
JEANNETTE, SUPRA, 164, OR THAT THEY THREATEN TO MAKE OPPRESSIVE OR
MALICIOUS USE OF THE LEGAL PROCESSES OF THE STATE.  CF. GUMBEL V.
PITKIN, 124 U.S. 131.  NOR IS THERE ANY SHOWING THAT THE LITIGATION OF
PENDING QUESTIONS IN THE FEDERAL COURTS WILL BE ANY LESS EMBARRASSING
OR INJURIOUS TO APPELLANTS THAN THE LITIGATION OF SUITS ALREADY PENDING
IN THE STATE COURTS WITH REVIEW BY THIS COURT.  DOUGLAS V. JEANNETTE,
SUPRA, 164. 

THERE ARE NO ALLEGATIONS WHICH WOULD TAKE THIS CASE OUT OF THE RULE
THAT IN GENERAL A FEDERAL COURT OF EQUITY WILL NOT EXERCISE ITS POWER
TO STAY LITIGATION LAWFULLY PROCEEDING IN STATE COURTS, OR AT ALL
EXCEPT WHERE IT IS PLAIN THAT BY THE EXERCISE OF ITS JURISDICTION AND
ITS DECISION OF THE ISSUE PENDING IN THE STATE COURTS IT WILL AVOID
SOME IMMEDIATE AND IRREPARABLE INJURY TO A PLAINTIFF.  THE CASE IS TO
BE DISTINGUISHED FROM THOSE SUSTAINING FEDERAL EQUITY JURISDICTION
WHERE THE ACTS SOUGHT TO BE ENJOINED, WHICH ARE ASSERTED TO BE
UNLAWFUL, DO NOT INVOLVE ANY RESORT BY AN ENFORCEMENT OFFICER TO THE
COURTS, WHERE THEIR LAWFULNESS WOULD, AS HERE, BE DETERMINED.  UTAH
FUEL CO. V. COAL COMM'N, 306 U.S. 56; HAGUE V. C.I.O., 307 U.S. 496. 

IT IS NOT SUGGESTED THAT APPELLANTS WILL BE FORCED TO COMPLY WITH THE
ACT BECAUSE THE PENALTIES ATTENDING ITS VIOLATION ARE CUMULATIVE OR SO
GREAT THAT APPELLANTS MAY NOT, WITHOUT RISK OF IRREPARABLE LOSS,
CONTINUE THEIR CLOSED-SHOP CONTRACTS IN ORDER TO TEST THE
CONSTITUTIONALITY OF THE ACT.  CF. EX PARTE YOUNG, SUPRA, 144; MISSOURI
PACIFIC R. CO. V. TUCKER, 230 U.S. 340, 349; TERRACE V. THOMPSON, 263
U.S. 197, 212, 214-216; BEAL V. MISSOURI PACIFIC R. CO., SUPRA, 51. 
NOR DOES THE COMPLAINT ALLEGE THAT ANY OF THE PERSONS, OTHER THAN
APPELLANTS, WITH WHOM APPELLANTS DEAL, EMPLOYERS OR EMPLOYEES, HAVE,
BECAUSE OF THE THREATS OF APPELLEES, BROKEN OR THREATENED TO BREAK
THEIR EXISTING CLOSED-SHOP AGREEMENTS OR HAVE REFUSED TO ENTER INTO
SUCH AGREEMENTS* . CF. KESSLER V. ELDRED, 206 U.S. 285.  SO FAR AS THE
COMPLAINT SHOWS SUCH PERSONS HAVE REFUSED TO RECOGNIZE THE
APPLICABILITY OR VALIDITY OF THE FLORIDA AMENDMENT AND ARE PREPARED TO
CONTEST IT. THUS THERE IS NO SHOWING OF THREATENED INJURY TO APPLICANTS
WHICH WOULD AFFORD ANY BASIS FOR AN INJUNCTION.  TRUE, IT IS ALLEGED
THAT APPELLANT GOULD, AN EMPLOYER, TO HIS IRREPARABLE DAMAGE, HAS NOT
BEEN ABLE TO ENTER INTO CLOSED-SHOP AGREEMENTS ALTHOUGH ANXIOUS TO DO
SO.  BUT IT IS NOT SAID THAT ANY OF THE OTHER APPELLANTS ARE, OR HAVE
BEEN, DAMAGED BY HIS FAILURE TO ENTER INTO SUCH AGREEMENTS, AND GOULD
HIMSELF MAY TEST THE LAW IN FLORIDA PROCEEDINGS BY REFUSING TO COMPLY
WITH THE ALLEGED THREATS OF APPELLEES.  IT DOES NOT APPEAR THAT HIS
DAMAGE WILL BE ANY DIFFERENT OR GREATER IF THE LITIGATION PROCEEDS IN
THE STATE INSTEAD OF THE FEDERAL COURTS, OR THAT IT IS MORE THAN AN
UNAVOIDABLE INCIDENT TO LITIGATION WHEREVER CONDUCTED WHERE THE
LAWFULNESS OF A BUSINESS PRACTICE IS DRAWN IN QUESTION.  THERE IS NO
SHOWING THAT APPELLANTS HAVE SOUGHT OR BEEN DENIED THE RIGHT TO
INTERVENE IN PENDING QUO WARRANTO PROCEEDINGS, COMPARE FLORIDA STATS.
SEC. 63.09; SWITOW V. SHER, 136 FLA. 284, 186 SO. 519; DAUGHERTY V.
LATHAM, 139 FLA. 477, 190 SO. 742; RIVIERA CLUB V. BELLE MEAD DEVELOP. 
CORP., 141 FLA. 538, 194 SO. 783; CARR V. CARLISLE, 146 FLA. 201, 200
SO. 529; TALLENTIRE V. BURKHART, 150 FLA. 137, 7 SO.2D 326, ALTHOUGH
THE ATTORNEY GENERAL OF THE STATE HAS TAKEN THE POSITION IN THE PENDING
PROCEEDINGS, AS HE DOES HERE, THAT HE DOES NOT OPPOSE THE GRANTING OF
APPLICATIONS FOR INTERVENTION BY THE APPELLANT LABOR UNIONS. 

*IT IS STATED IN THE PAPERS ON APPELLANTS' MOTION IN THE DISTRICT
COURT FOR A RESTRAINING ORDER, WHICH NOW STANDS DENIED, THAT ONE
EMPLOYER, AGAINST WHOM QUO WARRANTO PROCEEDINGS HAVE BEEN BROUGHT, HAS
SUSPENDED THE CLOSED-SHOP AGREEMENT WHICH IT HAD WITH ONE OF
APPELLANTS' UNIONS, AND FURTHER, THAT APPELLEES HAVE FILED QUO WARRANTO
PROCEEDINGS AGAINST SEVERAL CORPORATIONS HAVING CLOSED-SHOP AGREEMENTS
WITH APPELLANTS, THAT "THERE WILL NOT BE ANY BONA FIDE DEFENSE MADE IN
SAID SUITS, OR MOST OF THEM," AND THAT THE "PRAYERS CONTAINED IN THE
PETITIONS" FILED BY APPELLEES FOR A DECLARATION "TO THE EFFECT THAT THE
CONSTITUTIONAL AMENDMENT HERE UNDER ATTACK IS LEGAL AND VALID AND THE
CLOSED SHOP PROVISIONS OF THE CONTRACTS INVALIDATED" WILL BE GRANTED. 
NO SUCH AVERMENTS APPEAR IN THE COMPLAINT, THE ALLEGATIONS OF WHICH
ALONE SUPPLY THE TEST OF THE EQUITY JURISDICTION.  MASSACHUSETTS STATE
GRANGE V. BENTON, 272 U.S. 525, 528; WILLIAMS V. MILLER, 317 U.S. 599. 
FURTHER, ASSUMING THAT STATEMENTS IN THE MOTION PAPERS MAY SUPPLY
ESSENTIAL ALLEGATIONS LACKING IN THE COMPLAINT, NO REASON APPEARS WHY
THE EMPLOYEE APPELLANTS CANNOT TEST THE VALIDITY OF THE FLORIDA LAWS
AND CONSTITUTION BY SUITS AGAINST THEIR EMPLOYERS WHO HAVE BROKEN THEIR
CLOSED-SHOP CONTRACTS.  THERE IS NO ALLEGATION ON THE MOTION THAT ANY
EMPLOYER HAS REFUSED TO ENTER INTO A CLOSED-SHOP CONTRACT BECAUSE OF
THE THREATS OF APPELLEES. 

WE CANNOT ASSUME THAT THE PENDING SUITS IN QUO WARRANTO, WITH REVIEW
BY THIS COURT OF THE FEDERAL QUESTIONS INVOLVED, WILL NOT SETTLE ALL
PENDING LEGAL QUESTIONS, STATE AND FEDERAL, AS READILY AS A SUIT IN THE
FEDERAL COURT, OR THAT THE PARTIES WILL NOT ABIDE BY THE RESULT.  THE
BILL OF COMPLAINT IS NOT FRAMED ON THE THEORY OF A BILL OF PEACE.  CF.
CLEVELAND V. CLEVELAND CITY R. CO., 194 U.S. 517; BOISE ARTESIAN WATER
CO. V. BOISE CITY, 213 U.S. 276; BEAL V. MISSOURI PACIFIC R. CO.,
SUPRA, 50.  IT DOES NOT ALLEGE THAT REPEATED, GROUNDLESS OR OTHERWISE
VEXATIOUS SUITS WILL BE BROUGHT.  MCDANIEL V. TRAYLOR, 212 U.S. 428; DI
GIOVANNI V. CAMDEN FIRE INS. ASSN., SUPRA, 68.  IT DOES NOT SEEK TO
JOIN ALL PARTIES THREATENED BY THE PROSECUTION OF SUITS OR SHOW SUCH
SINGLENESS OF ISSUE OF DECISIVE QUESTIONS AS WILL PERMIT THE
ADJUDICATION OF ALL IN A SINGLE SUIT.  FRANCIS V. FLINN, 118 U.S. 385;
SCOTT V. DONALD, 165 U.S. 107, 115; HALE V. ALLINSON, 188 U.S. 56, 77
ET SEQ.; ST. LOUIS, I.M. & S.R. CO. V. MCKNIGHT, 244 U.S. 368, 375;
KELLEY V. GILL, 245 U.S. 116, 120; MATTHEWS V. RODGERS, 284 U.S. 521,
530. 

AND, FINALLY, THE DETERMINATION OF THE CONSTITUTIONAL QUESTIONS,
WHICH IS THE ONLY PURPOSE OF THE SUIT, MUST TURN ON THE AUTHORITATIVE
DECISION OF THE NUMEROUS AND NOVEL STATE QUESTIONS PRESENTED.  CF.
HYGRADE PROVISION CO. V. SHERMAN, SUPRA; CLINE V. FRINK DAIRY CO., 274
U.S. 445; SPIELMAN MOTOR CO. V. DODGE, SUPRA; BEAL V. MISSOURI PACIFIC
R. CO., SUPRA, 50.  THE PRESENCE OF SUCH STATE QUESTIONS IN THE SUIT IS
ITSELF A SUFFICIENT GROUND FOR OUR DECLINING TO DECIDE THE
CONSTITUTIONAL QUESTIONS IN ADVANCE OF AUTHORITATIVE DETERMINATION OF
THE STATE QUESTIONS BY THE STATE COURTS.  CF. ALABAMA STATE FEDERATION
V. MCADORY, 325 U.S. 450; C.I.O. V. MCADORY, 325 U.S. 472; SEE SPECTOR
MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101. 

FURTHER, SINCE THE WHOLE AIM OF APPELLANTS' SUIT IS TO ENJOIN THE
APPELLEES FROM PROCEEDING IN THE STATE COURTS, THIS COURT'S DIRECTION
TO THE DISTRICT COURT TO RETAIN THE BILL PENDING THE DETERMINATION OF
PROCEEDINGS IN THE STATE COURTS DEFEATS THE ENTIRE PURPOSE OF THE
PRESENT SUIT AND PERMITS THE CONTINUANCE OF STATE LITIGATION WHICH IS
THE ONLY GROUND ASSERTED FOR EQUITABLE RELIEF.  IF APPELLEES SHOULD AT
ANY TIME MAKE OPPRESSIVE USE OF LEGAL PROCESSES OF THE STATE, BRING
REPEATED, GROUNDLESS SUITS, OR OTHERWISE THREATEN IRREPARABLE DAMAGE TO
APPELLANTS, THE FEDERAL COURTS ARE OPEN TO THEM UPON THEIR MAKING
ALLEGATIONS SUFFICIENT TO JUSTIFY INTERVENTION BY EQUITY.  BUT THE MERE
CHANCE THAT SUCH IRREPARABLE DAMAGE MAY BE THREATENED AT SOME
INDEFINITE TIME IN THE FUTURE, ALTHOUGH IT IS NOT NOW, IS NO REASON FOR
THE DISTRICT COURT TO RETAIN THE BILL WHICH WHOLLY FAILS TO SHOW ANY
GROUND FOR EQUITABLE RELIEF.  THERE BEING NO SHOWING OF DAMAGE TO THE
APPELLANTS, ACTUAL OR POTENTIAL, SAVE THAT WHICH IS A NECESSARY
INCIDENT TO THE STATE'S EXERCISE OF ITS CONSTITUTIONAL POWER TO ENFORCE
ITS CONSTITUTION AND LAWS, WHICH THIS COURT NOW PERMITS, IT IS OUR
PLAIN DUTY TO DISMISS THE SUIT. 

MR. JUSTICE MURPHY, DISSENTING IN PART. 

I DISSENT FROM THAT PART OF THE COURT'S OPINION THAT HOLDS THAT THE
DISTRICT COURT ERRED IN PASSING UPON THE MERITS OF THE CONTROVERSY
PRESENTED BY THIS CASE. 

IT MAY WELL BE THAT THERE ARE SERIOUS QUESTIONS AS TO HOW AND AGAINST
WHOM FLORIDA'S NEW CONSTITUTIONAL PROVISION WILL BE ENFORCED.  AND THE
PROVISION MAY BE CONSTRUED SO AS NOT TO CONFLICT WITH THE NATIONAL
LABOR RELATIONS ACT.  SUCH MATTERS MUST WAIT FOR AUTHORITATIVE ACTION
BY THE FLORIDA COURTS.  BUT THERE ARE FEDERAL CONSTITUTIONAL ISSUES
INHERENT ON THE FACE OF THIS PROVISION THAT DO NOT DEPEND UPON ANY
INTERPRETATION OR APPLICATION MADE BY FLORIDA COURTS.  THOSE ISSUES
WERE RAISED AND DECIDED IN THE COURT BELOW.  AND THEY SHOULD BE GIVEN
APPROPRIATE ATTENTION BY THIS COURT. 

THE COURT TODAY HOLDS THAT THERE IS A VERY REAL AND IMMINENT THREAT
TO THE ENTIRE SYSTEM OF COLLECTIVE BARGAINING IN FLORIDA GROWING OUT OF
THE CURRENT ATTEMPTS TO ENFORCE THE FLORIDA LAW.  IT SHOULD NOT BE AND
IS NOT DIFFICULT TO DISCOVER THE FEDERAL CONSTITUTIONAL ISSUES THAT ARE
INVOLVED IN THAT THREAT.  TRUE, WE CANNOT SAY WHAT CONSTITUTIONAL
ISSUES MAY ARISE OUT OF THE LAW AS SUBSEQUENTLY INTERPRETED AND APPLIED
BY THE FLORIDA COURTS.  BUT WE CAN SAY WHAT ISSUES ARE APPARENT ON THE
FACE OF THE LAW ITSELF, THE LAW THAT HAS GIVEN RISE TO THE GRAVE THREAT
TO COLLECTIVE BARGAINING IN FLORIDA.  EITHER THE PROVISION DOES OR DOES
NOT VIOLATE DUE PROCESS AS GUARANTEED IN THE FOURTEENTH AMENDMENT;
EITHER IT FALLS OUTSIDE OR INSIDE THE PERMISSIBLE SCOPE OF THE POLICE
POWER OF THE STATE; EITHER IT IS IN ACCORD OR IN CONFLICT ON ITS FACE
WITH THE NATIONAL LABOR RELATIONS ACT.  THOSE ARE THE ISSUES THE
PARTIES HAVE RAISED AND THE COURT BELOW HAS DECIDED.  THOSE ARE THE
ISSUES THAT ARE OBVIOUSLY INVOLVED IN RELATION TO THE FLORIDA LAW.  I
DO NOT BELIEVE THAT A FEDERAL COURT IS INCAPABLE OF RECOGNIZING OR
DECIDING THOSE ISSUES.  NOR DO I BELIEVE THAT IT SHOULD CLOSE ITS EYES
TO THOSE ISSUES MERELY BECAUSE THEY ARE DIFFICULT OR HIGHLY
CONTROVERSIAL.  IN SHORT, APPELLANTS' CLAIMS ARE RIPE FOR
ADJUDICATION. 

MOREOVER, THE COURT REMANDS THE CASE TO THE DISTRICT COURT WITH
DIRECTIONS TO RETAIN THE CASE UNTIL THE FLORIDA COURTS INTERPRET THE
PROVISION IN THE FLORIDA CONSTITUTION.  THE EFFICACY OF THIS
DISPOSITION OF THE CASE IS LESS REAL THAN APPARENT.  IT AFFORDS LITTLE
IF ANY PROTECTION TO THE APPELLANTS SO FAR AS THE ISSUES NOW IN DISPUTE
ARE CONCERNED.  THEY ARE LEFT UNPROTECTED AGAINST THE VERY THREAT WHICH
THIS COURT STATES IS REAL AND IMMINENT.  AND SHOULD THE FLORIDA COURTS
ULTIMATELY DECIDE THESE ISSUES ADVERSELY TO APPELLANTS' CONTENTIONS
THEY WILL HAVE NO EFFECTIVE RECOURSE IN THE DISTRICT COURT, WHICH
ALREADY HAS EXPRESSED ITSELF FULLY AND ADVERSELY RELATIVE TO THOSE
CONTENTIONS. 

I DISSENT, THEREFORE, FROM A PROCEDURE DEPRIVING APPELLANTS OF A FULL
HEARING AND A DETERMINATION OF THE ISSUES THEY HAVE PROPERLY RAISED IN
THE DISTRICT COURT AND DENYING THEM THE RIGHT TO SECURE THE PROTECTION
THE FEDERAL EQUITABLE POWER MIGHT GIVE THEM. 
..END :



SIEGEL CO. V. TRADE COMM'N, 327 U.S. 608 


NO. 605.  ARGUED MARCH 4, 1946.  - DECIDED MARCH 25, 1946.  - 150 F.2D
751, REVERSED. 


IN PROCEEDINGS UNDER SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT, THE
COMMISSION FOUND THAT THE USE BY PETITIONER OF THE TRADE NAME
"ALPACUNA" IN THE MARKETING OF ITS COATS WAS DECEPTIVE AND MISLEADING
AND ORDERED PETITIONER TO CEASE AND DESIST FROM USING IT, APPARENTLY
WITHOUT CONSIDERING WHETHER QUALIFYING LANGUAGE WOULD ELIMINATE THE
DECEPTION AND SATISFY THE PURPOSES OF THE ACT WITHOUT DESTROYING THE
TRADE NAME.  ON REVIEW THE CIRCUIT COURT OF APPEALS HELD THAT THE
COMMISSION'S FINDINGS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE AND
AFFIRMED THE ORDER; BUT STATED THAT THE PROHIBITION WAS "FAR TOO HARSH"
AND THAT IT WOULD MODIFY THE ORDER TO PERMIT USE OF THE TRADE NAME WITH
QUALIFYING LANGUAGE, IF IT HAD AUTHORITY TO DO SO.  HELD: 

1.  SECTION 5(C) OF THE FEDERAL TRADE COMMISSION ACT DOES NOT LIMIT
THE REVIEWING COURT TO AFFIRMANCE OR REVERSAL OF THE COMMISSION'S
ORDER, BUT AUTHORIZES IT TO MODIFY THE ORDER AS WELL.  P. 611. 

2.  THE POWER TO MODIFY EXTENDS TO THE REMEDY.  FEDERAL TRADE
COMMISSION V. ROYAL MILLING CO., 288 U.S. 212.  P. 611. 

3.  WHILE JUDICIAL REVIEW OF SUCH ORDERS IS LIMITED, IT EXTENDS TO
THE QUESTION WHETHER THE COMMISSION ABUSED ITS DISCRETION IN CONCLUDING
THAT NO CHANGE SHORT OF EXCISION OF THE TRADE NAME WOULD GIVE ADEQUATE
PROTECTION.  PP. 611, 612. 

4.  SINCE TRADE NAMES ARE VALUABLE BUSINESS ASSETS, THEIR DESTRUCTION
SHOULD NOT BE ORDERED IF LESS DRASTIC MEANS WILL ACCOMPLISH THE SAME
RESULT.  FEDERAL TRADE COMMISSION V. ROYAL MILLING CO., SUPRA.  P.
612. 

5.  THE TEST IS WHETHER SOME CHANGE OTHER THAN THE EXCISION OF THE
TRADE NAME WOULD BE ADEQUATE IN THE JUDGMENT OF THE COMMISSION.  P.
613. 

6.  SINCE THE COMMISSION SEEMS NOT TO HAVE CONSIDERED THIS POINT, THE
COURTS ARE NOT READY TO PASS ON THE QUESTION WHETHER THE LIMITS OF ITS
DISCRETION HAVE BEEN EXCEEDED IN THE CHOICE OF THE REMEDY UNTIL AN
ADMINISTRATIVE DETERMINATION IS MADE.  P. 614. 

7.  THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT
COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  P. 614. 

JACOB SIEGEL CO. V. FEDERAL TRADE COMMISSION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

THE FEDERAL TRADE COMMISSION ORDERED PETITIONER TO CEASE AND DESIST
FROM USING A TRADE NAME WHICH IT FOUND DECEPTIVE AND MISLEADING.  36
F.T.C. 563.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  150 F.2D 751. 
THIS COURT GRANTED CERTIORARI.  326 U.S. 715.  REVERSED, P. 614. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE ALPACA AND THE VICUNA ARE ANIMALS WHOSE FLEECE IS USED IN THE
MANUFACTURE OF FABRICS.  THE FLEECE OF THE VICUNA IS, INDEED, ONE OF
THE FINEST AND IS EXTREMELY RARE; AND FABRICS MADE OF IT COMMAND A HIGH
PRICE.  PETITIONER MANUFACTURES OVERCOATS AND TOPCOATS AND MARKETS THEM
UNDER THE NAME ALPACUNA.  THEY CONTAIN ALPACA, MOHAIR, WOOL, AND COTTON
BUT NO VICUNA. 

THE FEDERAL TRADE COMMISSION IN PROCEEDINGS UNDER SEC. 5 OF THE
FEDERAL TRADE COMMISSION ACT (52 STAT. 111, 15 U.S.C. SEC. 45) FOUND
THAT PETITIONER HAD MADE CERTAIN MISREPRESENTATIONS IN THE MARKETING OF
ITS COATS.  IT FOUND, FOR EXAMPLE, THAT THE REPRESENTATIONS THAT THE
COATS CONTAINED IMPORTED ANGORA AND GUANACO WERE FALSE.  IT ALSO FOUND
THAT THE NAME ALPACUNA IS DECEPTIVE AND MISLEADING TO A SUBSTANTIAL
PORTION OF THE PURCHASING PUBLIC, BECAUSE IT INDUCES THE ERRONEOUS
BELIEF THAT THE COATS CONTAIN VICUNA.  BUT THERE WAS NO FINDING THAT
PETITIONER HAD MADE REPRESENTATIONS THAT ALPACUNA IN FACT CONTAINED
VICUNA.  IT ACCORDINGLY ISSUED A CEASE AND DESIST ORDER  FN1  WHICH,
AMONG OTHER THINGS, BANNED THE USE OF THE WORD ALPACUNA TO DESCRIBE
PETITIONER'S COATS.  36 F.T.C. 563.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  150 F.2D 751.  IT HELD THAT THE COMMISSION'S FINDINGS
RESPECTING THE USE OF THE NAME ALPACUNA WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE.  IT WAS OF THE VIEW, HOWEVER, THAT THE PROHIBITION OF THE USE
OF THE NAME WAS FAR TOO HARSH; AND IT STATED THAT IT WOULD HAVE
MODIFIED THE ORDER TO PERMIT ALPACUNA TO BE USED WITH QUALIFYING
LANGUAGE HAD IT THOUGHT THAT FEDERAL TRADE COMMISSION V. ROYAL MILLING
CO., 288 U.S. 212, WAS STILL A CONTROLLING AUTHORITY.  BUT IT CONCLUDED
THAT THAT CASE HAD BEEN SO LIMITED BY SUBSEQUENT DECISIONS OF THE
COURT, INVOLVING OTHER ADMINISTRATIVE AGENCIES, THAT CONTROL OF THE
REMEDY LAY EXCLUSIVELY WITH THE COMMISSION.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
IMPORTANCE OF THE QUESTION PRESENTED. 

BY THE FEDERAL TRADE COMMISSION ACT CONGRESS MADE UNLAWFUL "UNFAIR
METHODS OF COMPETITION IN COMMERCE, AND UNFAIR OR DECEPTIVE ACTS OR
PRACTICES IN COMMERCE  ..."  SEC. 5(A).  IT PROVIDED THAT WHEN THE
COMMISSION'S CEASE AND DESIST ORDERS WERE CHALLENGED IN THE COURTS, THE
FINDINGS OF THE COMMISSION "AS TO THE FACTS, IF SUPPORTED BY EVIDENCE,
SHALL BE CONCLUSIVE."  SEC. 5(C).  BUT IT DID NOT LIMIT THE REVIEWING
COURT TO AN AFFIRMANCE OR REVERSAL OF THE COMMISSION'S ORDER.  IT GAVE
THE COURT POWER TO MODIFY THE ORDER AS WELL.  FN2 

THE POWER TO MODIFY EXTENDS TO THE REMEDY AS FEDERAL TRADE COMMISSION
V. ROYAL MILLING CO., SUPRA, INDICATES.  IN THAT CASE, THE COMMISSION
BARRED THE USE OF THE WORDS "MILLING COMPANY" SINCE THE COMPANY, THOUGH
BLENDING AND MIXING FLOUR, DID NOT MANUFACTURE IT.  THE COURT CONCLUDED
THAT A LESS DRASTIC ORDER WAS ADEQUATE FOR THE EVIL AT HAND AND
REMANDED THE CASE SO THAT THE COMMISSION MIGHT ADD APPROPRIATE
QUALIFYING WORDS WHICH WOULD ELIMINATE ANY DECEPTION LURKING IN THE
TRADE NAME.  ON THE OTHER HAND, THE EXCISION OF A PART OF THE TRADE
NAME WAS SUSTAINED IN FEDERAL TRADE COMMISSION V. ALGOMA LUMBER CO.,
291 U.S. 67.  IN THAT CASE, "CALIFORNIA WHITE PINE" WAS BEING USED TO
DESCRIBE WHAT WAS BOTANICALLY A YELLOW PINE.  THE COMMISSION PROHIBITED
THE USE OF THE WORD "WHITE" IN CONJUNCTION WITH "PINE" TO DESCRIBE THE
PRODUCT.  THE COURT SUSTAINED THE ORDER. 

THE COMMISSION HAS WIDE DISCRETION IN ITS CHOICE OF A REMEDY DEEMED
ADEQUATE TO COPE WITH THE UNLAWFUL PRACTICES IN THIS AREA OF TRADE AND
COMMERCE.  HERE, AS IN THE CASE OF ORDERS OF OTHER ADMINISTRATIVE
AGENCIES UNDER COMPARABLE STATUTES,  FN3 JUDICIAL REVIEW IS LIMITED. 
IT EXTENDS NO FURTHER THAN TO ASCERTAIN WHETHER THE COMMISSION MADE AN
ALLOWABLE JUDGMENT IN ITS CHOICE OF THE REMEDY.  AS APPLIED TO THIS
PARTICULAR TYPE OF CASE, IT IS WHETHER THE COMMISSION ABUSED ITS
DISCRETION IN CONCLUDING THAT NO CHANGE "SHORT OF THE EXCISION" OF THE
TRADE NAME WOULD GIVE ADEQUATE PROTECTION.  FEDERAL TRADE COMMISSION V.
ALGOMA LUMBER CO., SUPRA, PP. 81-82.  THE ISSUE IS STATED THAT WAY FOR
THE REASON THAT WE ARE DEALING HERE WITH TRADE NAMES WHICH, AS FEDERAL
TRADE COMMISSION V. ROYAL MILLING CO., SUPRA, P. 217, EMPHASIZES, ARE
VALUABLE BUSINESS ASSETS.  THE FACT THAT THEY WERE ADOPTED WITHOUT
FRAUDULENT DESIGN OR WERE REGISTERED AS TRADE-MARKS DOES NOT STAY THE
COMMISSION'S HAND.  FEDERAL TRADE COMMISSION V. ALGOMA LUMBER CO.,
SUPRA, P. 79; CHARLES OF THE RITZ DISTRIBUTORS CORP. V. FEDERAL TRADE
COMMISSION, 143 F.2D 676, 679.  BUT THE POLICY OF THE LAW TO PROTECT
THEM AS ASSETS OF A BUSINESS INDICATES THAT THEIR DESTRUCTION "SHOULD
NOT BE ORDERED IF LESS DRASTIC MEANS WILL ACCOMPLISH THE SAME RESULT." 
FEDERAL TRADE COMMISSION V. ROYAL MILLING CO., SUPRA, P. 217.  THE
PROBLEM IS TO ASCERTAIN WHETHER THAT POLICY AND THE OTHER POLICY OF
PREVENTING UNFAIR OR DECEPTIVE TRADE PRACTICES CAN BE ACCOMMODATED. 
THAT IS A QUESTION INITIALLY AND PRIMARILY FOR THE COMMISSION. 
CONGRESS HAS ENTRUSTED IT WITH THE ADMINISTRATION OF THE ACT AND HAS
LEFT THE COURTS WITH ONLY LIMITED POWERS OF REVIEW.  THE COMMISSION IS
THE EXPERT BODY TO DETERMINE WHAT REMEDY IS NECESSARY TO ELIMINATE THE
UNFAIR OR DECEPTIVE TRADE PRACTICES WHICH HAVE BEEN DISCLOSED.  IT HAS
WIDE LATITUDE FOR JUDGMENT AND THE COURTS WILL NOT INTERFERE EXCEPT
WHERE THE REMEDY SELECTED HAS NO REASONABLE RELATION TO THE UNLAWFUL
PRACTICES FOUND TO EXIST. 

BUT IN THE PRESENT CASE, WE DO NOT REACH THE QUESTION WHETHER THE
COMMISSION WOULD BE WARRANTED IN HOLDING THAT NO QUALIFYING LANGUAGE
FN4  WOULD ELIMINATE THE DECEPTION WHICH IT FOUND LURKING IN THE WORD
ALPACUNA.  FOR THE COMMISSION SEEMS NOT TO HAVE CONSIDERED WHETHER IN
THAT WAY THE ENDS OF THE ACT COULD BE SATISFIED AND THE TRADE NAME AT
THE SAME TIME SAVED.  FN5  WE FIND NO INDICATION THAT THE COMMISSION
CONSIDERED THE POSSIBILITY OF SUCH AN ACCOMMODATION.  IT INDICATED THAT
PROHIBITION OF THE USE OF THE NAME WAS IN THE PUBLIC INTEREST SINCE THE
CEASE AND DESIST ORDER PROHIBITED THE FURTHER USE OF THE NAME.  FN6
BUT WE ARE LEFT IN THE DARK WHETHER SOME CHANGE OF NAME SHORT OF
EXCISION WOULD IN THE JUDGMENT OF THE COMMISSION BE ADEQUATE.  YET THAT
IS THE TEST, AS THE ALGOMA LUMBER CO. AND THE ROYAL MILLING CO. CASES
INDICATE.  ITS APPLICATION INVOLVES THE EXERCISE OF AN INFORMED, EXPERT
JUDGMENT.  THE COMMISSION IS ENTITLED NOT ONLY TO APPRAISE THE FACTS OF
THE PARTICULAR CASE AND THE DANGERS OF THE MARKETING METHODS EMPLOYED
(FEDERAL TRADE COMMISSION V. WINSTED HOSIERY CO., 258 U.S. 483, 494)
BUT TO DRAW FROM ITS GENERALIZED EXPERIENCE.  SEE REPUBLIC AVIATION
CORP. V. LABOR BOARD, 324 U.S. 793, 801-805.  ITS EXPERT OPINION IS
ENTITLED TO GREAT WEIGHT IN THE REVIEWING COURTS.  BUT THE COURTS ARE
NOT READY TO PASS ON THE QUESTION WHETHER THE LIMITS OF DISCRETION HAVE
BEEN EXCEEDED IN THE CHOICE OF THE REMEDY UNTIL THE ADMINISTRATIVE
DETERMINATION IS FIRST MADE. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT
COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

FN1  IT ORDERED PETITIONER TO CEASE AND DESIST FROM 

"1.  REPRESENTING THAT RESPONDENT'S COATS CONTAIN GUANACO HAIR. 

"2.  REPRESENTING THAT THE ANGORA GOAT HAIR OR MOHAIR USED IN
RESPONDENT'S COATS IS IMPORTED FROM TURKESTAN OR ANY OTHER FOREIGN
COUNTRY. 

"3.  REPRESENTING THROUGH THE USE OF DRAWINGS OR PICTORIAL
REPRESENTATIONS, OR IN ANY OTHER MANNER, THAT RESPONDENT'S COATS
CONTAIN FIBERS OR MATERIALS WHICH THEY DO NOT IN FACT CONTAIN. 

"4.  REPRESENTING THAT COATS MADE OF FABRICS WHICH HAVE A COTTON
BACKING ARE COMPOSED ENTIRELY OF WOOL OR OF WOOL AND HAIR. 

"5.  USING ANY ADVERTISING MATTER OR CAUSING, AIDING, ENCOURAGING, OR
PROMOTING THE USE BY DEALERS OF ANY ADVERTISING MATTER WHICH PURPORTS
TO DISCLOSE THE CONSTITUENT FIBERS OR MATERIALS OF COATS COMPOSED IN
PART OF COTTON, UNLESS SUCH ADVERTISING MATTER CLEARLY DISCLOSES SUCH
COTTON CONTENT ALONG WITH SUCH OTHER FIBERS OR MATERIALS. 

"6.  USING THE WORD 'ALPACUNA,' OR ANY OTHER WORD WHICH IN WHOLE OR
IN PART IS INDICATIVE OF THE WORD 'VICUNA,' TO DESIGNATE OR DESCRIBE
RESPONDENT'S COATS; OR OTHERWISE REPRESENTING, DIRECTLY OR BY
IMPLICATION, THAT RESPONDENT'S COATS CONTAIN VICUNA FIBER." 

FN2  SEC. 5(C) PROVIDES THAT THE COURT "SHALL HAVE POWER TO MAKE AND
ENTER UPON THE PLEADINGS, EVIDENCE, AND PROCEEDINGS SET FORTH IN SUCH
TRANSCRIPT A DECREE AFFIRMING, MODIFYING, OR SETTING ASIDE THE ORDER OF
THE COMMISSION, AND ENFORCING THE SAME TO THE EXTENT THAT SUCH ORDER IS
AFFIRMED  ..." 

FN3  SEE INTERNATIONAL ASSOCIATION OF MACHINISTS V. LABOR BOARD, 311
U.S. 72, 82; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194;
VIRGINIA ELECTRIC CO. V. LABOR BOARD, 319 U.S. 533, 543; FRANKS BROS.
CO. V. LABOR BOARD, 321 U.S. 702, 704-705; BOARD OF TRADE V. UNITED
STATES, 314 U.S. 534, 548; FEDERAL SECURITY ADM'R V. QUAKER OATS CO.,
318 U.S. 218, 227-229; NORTHWESTERN ELECTRIC CO. V. FEDERAL POWER
COMMISSION, 321 U.S. 119, 123-124. 

FN4  PETITIONER NOW USES LABELS READING "ALPACUNA COAT - CONTAINS NO
VICUNA" AND SPECIFIES THE FIBRE CONTENT OF THE CLOTH.  SEE 54 STAT.
1128, 15 U.S.C. SEC. 68. 

FN5  THE OPINION OF THE COMMISSION GOES NO FURTHER THAN TO FIND THAT
"THE NAME 'ALPACUNA' IS MISLEADING AND DECEPTIVE TO A SUBSTANTIAL
PORTION OF THE PURCHASING PUBLIC IN THAT IT REPRESENTS OR IMPLIES" THAT
THE COATS CONTAIN VICUNA; AND THAT AS A RESULT SUBSTANTIAL TRADE IS
DIVERTED TO RESPONDENT FROM ITS COMPETITORS. 

FN6  THIS APPEARS NOT FROM THE OPINION BUT FROM THE PARAGRAPH
FOLLOWING THE ORDER ENTERED BY THE COMMISSION: 

"COMMISSIONER FREER DISSENTS FROM SO MUCH OF THE ORDER AS WHOLLY
PROHIBITS THE CONTINUED USE OF THE TRADE NAME 'ALPACUNA' FOR THE REASON
THAT THIS TRADE NAME, WHICH HAS BEEN IN USE FOR MORE THAN THIRTEEN
YEARS, IS A VALUABLE BUSINESS ASSET, AND IS NEITHER DECEPTIVE PER SE,
NOR IS THE TESTIMONY CONCERNING ITS TENDENCY OR CAPACITY TO DECEIVE
SUFFICIENTLY CLEAR AND CONVINCING AS TO RENDER SUCH PROHIBITION OF ITS
USE NECESSARY IN THE PUBLIC INTEREST. 

"A MAJORITY OF THE COMMISSION DO NOT AGREE WITH EITHER COMMISSIONER
FREER'S STATEMENTS OF FACT OR HIS CONCLUSIONS OF LAW." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












KRAUS & BROS. V. UNITED STATES, 327 U.S. 614 


NO. 198.  ARGUED DECEMBER 14, 1945.  - DECIDED MARCH 25, 1946.  - 


1.  SECTION 1429.5 OF REVISED MAXIMUM PRICE REGULATION NO. 269(ISSUED
DECEMBER 18, 1942, UNDER THE EMERGENCY PRICE CONTROL ACT) - WHICH
PROVIDES THAT THE PRICE LIMITATIONS ON POULTRY PRESCRIBED BY THE
REGULATION SHALL NOT BE EVADED BY ANY METHOD, DIRECT OR INDIRECT,
WHETHER IN CONNECTION WITH ANY OFFER OR SALE OF A PRICEREGULATED
COMMODITY ALONE "OR IN CONJUNCTION WITH ANY OTHER COMMODITY," OR BY WAY
OF ANY TRADE UNDERSTANDING "OR OTHERWISE" - HELD NOT TO FORBID ALL TIE
IN SALES BUT ONLY THOSE WHICH INVOLVE SECONDARY PRODUCTS THAT ARE
WORTHLESS OR THAT ARE SOLD AT ARTIFICIAL PRICES.  PP. 622-626. 

2.  WHERE THE INFORMATION IN A CRIMINAL PROSECUTION FOR VIOLATIONS OF
REVISED MAXIMUM PRICE REGULATION NO. 269 CHARGED THAT THE ACCUSED
"UNLAWFULLY, WILFULLY AND KNOWINGLY EVADED THE PROVISIONS OF" THE
REGULATION "BY DEMANDING, COMPELLING AND REQUIRING" THE RETAIL BUYER TO
PURCHASE CHICKEN FEET OR CHICKEN SKINS AT A SPECIFIED PRICE AS A
CONDITION OF THE SALE OF POULTRY AND THERE WAS EVIDENCE THAT THE
CHICKEN SKINS AND FEET SOLD HAD VALUE AND WERE SOLD AT THEIR MARKET
PRICE, A CHARGE BY THE TRIAL JUDGE THAT THE "ONE" QUESTION IN THE CASE
WAS WHETHER THE SALE OF CHICKEN PARTS WAS A NECESSARY CONDITION TO THE
PURCHASE OF THE POULTRY WAS A REVERSIBLE ERROR; SINCE THE JURY MAY WELL
HAVE DISREGARDED AS IRRELEVANT THE EVIDENCE OF VALUE AS TO THE
SECONDARY PRODUCT AND CONVICTED SOLELY ON THE GROUND THAT THERE WAS A
TIE-IN SALE.  P. 626. 

3.  IN ORDER TO SUSTAIN A CRIMINAL CONVICTION, REGULATIONS PRESCRIBED
BY THE PRICE ADMINISTRATOR UNDER SEC. 2(G) OF THE EMERGENCY PRICE
CONTROL ACT TO PREVENT CIRCUMVENTION OR EVASION OF PRICE LIMITATIONS
MUST BE EXPLICIT AND UNAMBIGUOUS AND MUST ADEQUATELY INFORM THOSE WHO
ARE SUBJECT TO THEIR TERMS WHAT CONDUCT WILL BE CONSIDERED EVASIVE -
THE DIVIDING LINE BETWEEN UNLAWFUL EVASION AND LAWFUL ACTION CAN NOT BE
LEFT TO CONJECTURE.  P. 621. 

4.  A PROSECUTOR IN FRAMING AN INDICTMENT, A COURT IN INTERPRETING
THE ADMINISTRATOR'S REGULATIONS, OR A JURY IN JUDGING GUILT CAN NOT
SUPPLY THAT WHICH THE ADMINISTRATOR FAILED TO DO BY EXPRESS WORD OR
FAIR IMPLICATION.  P. 622. 

5. NOR CAN THE ADMINISTRATOR'S INTERPRETATIONS OF HIS OWN REGULATIONS
CURE AN OMISSION OR ADD CERTAINTY AND DEFINITENESS TO OTHERWISE VAGUE
LANGUAGE OF A REGULATION.  P. 622. 

6.  A CRIMINAL CONVICTION FOR VIOLATION OF AN ADMINISTRATIVE
REGULATION OUGHT NOT TO REST UPON AN ADMINISTRATIVE INTERPRETATION
REACHED BY THE USE OF POLICY JUDGMENT RATHER THAN BY THE INEXORABLE
COMMAND OF RELEVANT LANGUAGE OF THE REGULATION ITSELF.  P. 626. 

7.  WHERE CORRECT STATEMENTS IN A CHARGE TO A JURY ARE SO INTERTWINED
WITH INCORRECT STATEMENTS AS TO NEGATIVE THE EFFECT OF THE CORRECT
STATEMENTS, THE CHARGE IS A REVERSIBLE ERROR; SINCE A CONVICTION OUGHT
NOT TO REST ON AN EQUIVOCAL DIRECTION TO THE JURY ON A BASIC ISSUE. 
BOLLENBACH V. UNITED STATES, 326 U.S. 607.  PP. 626, 627. 

M. KRAUS & BROS., INC. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

PETITIONER WAS CONVICTED OF VIOLATING REVISED MAXIMUM PRICE
REGULATION NO. 269, PROMULGATED BY THE PRICE ADMINISTRATOR PURSUANT TO
THE EMERGENCY PRICE CONTROL ACT.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  149 F.2D 773.  THIS COURT GRANTED CERTIORARI.  326 U.S.
699.  REMANDED FOR NEW TRIAL.  P. 627. 

MR. JUSTICE MURPHY ANNOUNCED THE CONCLUSION AND JUDGMENT OF THE
COURT. 

THE PROBLEM HERE IS WHETHER THE PETITIONER CORPORATION WAS PROPERLY
CONVICTED OF A CRIME UNDER THE EMERGENCY PRICE CONTROL ACT OF 1942. 
FN1 

THE PETITIONER IS ENGAGED IN THE WHOLESALE MEAT AND POULTRY BUSINESS
IN NEW YORK CITY.  POULTRY IS A COMMODITY SUBJECT TO THE PROVISIONS OF
REVISED MAXIMUM PRICE REGULATION NO. 269,  FN2 PROMULGATED BY THE PRICE
ADMINISTRATOR PURSUANT TO SEC. 2(A) OF THE EMERGENCY PRICE CONTROL ACT
OF 1942.  TWO INFORMATIONS, EACH CONTAINING SIX COUNTS, WERE FILED
AGAINST PETITIONER.  EACH COUNT ALLEGED THAT, AS AN INTEGRAL PART OF A
SPECIFIED SALE OF POULTRY ON A DAY DURING THE THANKSGIVING SEASON IN
NOVEMBER, 1943, THE PETITIONER "UNLAWFULLY, WILFULLY AND KNOWINGLY
EVADED THE PROVISIONS OF SAID REVISED MAXIMUM PRICE REGULATION NO. 269,
SEC. 1429.5, BY DEMANDING, COMPELLING AND REQUIRING" THE RETAIL BUYER
TO PURCHASE CHICKEN FEET OR CHICKEN SKIN AT A SPECIFIED PRICE AS A
CONDITION OF THE SALE OF THE POULTRY.  PETITIONER'S PRESIDENT WAS NAMED
AS A CO-DEFENDANT IN THE FIRST INFORMATION AND THE TWO INFORMATIONS
WERE CONSOLIDATED FOR TRIAL PURPOSES. 

THE THEORY OF THE GOVERNMENT IS THAT THE PETITIONER WAS GUILTY OF AN
EVASION OF THE PRICE LIMITATIONS SET FORTH IN THIS PARTICULAR
REGULATION IF IT REQUIRED THE PURCHASE OF CHICKEN FEET AND SKIN AS A
NECESSARY CONDITION TO OBTAINING THE PRIMARY COMMODITY, THE POULTRY. 
THIS PRACTICE IS COMMONLY KNOWN AS A "COMBINATION SALE" OR A "TYING
AGREEMENT."  IT IS ARGUED THAT THE PETITIONER THEREBY RECEIVED FOR THE
POULTRY THE CEILING PRICE PLUS THE PRICE OF THE SECONDARY COMMODITIES,
THE CHICKEN PARTS. 

THE EVIDENCE WAS UNDISPUTED THAT THE POULTRY WAS BILLED BY PETITIONER
AT CEILING PRICES FIXED BY THE PRICE ADMINISTRATOR AND THAT NO CEILING
PRICES HAD BEEN SET FOR CHICKEN FEET OR CHICKEN SKIN.  IT WAS ALSO
UNDISPUTED THAT THE DEMAND FOR POULTRY DURING THE THANKSGIVING SEASON
FAR EXCEEDED THE SUPPLY AND THAT PETITIONER VOLUNTARILY IMPOSED A
RATIONING SYSTEM AMONG ITS CUSTOMERS. 

THE GOVERNMENT'S CASE RESTED PRIMARILY UPON THE TESTIMONY OF SEVEN
RETAIL BUTCHERS WHO HAD PURCHASED POULTRY AND POULTRY PARTS FROM
PETITIONER DURING THE PERIOD IN QUESTION.  ONLY ONE OF THEM TESTIFIED
EXPLICITLY THAT THE SALE OF POULTRY TO HIM HAD BEEN CONDITIONED UPON
THE SALE OF POULTRY PARTS WHICH HE DID NOT WANT AND FOR WHICH THERE WAS
NO CONSUMER DEMAND.  HIS TESTIMONY, HOWEVER, WAS DISBELIEVED BY THE
JURY SINCE IT ACQUITTED THE PETITIONER ON THE TWO COUNTS INVOLVING
SALES TO HIM.  WITH TWO EXCEPTIONS, THE OTHER BUTCHERS TESTIFIED EITHER
THAT THE FEET AND SKINS WERE LOADED ON THEIR TRUCKS WITHOUT PREVIOUS
ORDER OR SOLICITATION ALONG WITH THE POULTRY OR THAT THEY WERE BILLED
FOR BOTH THE POULTRY AND THE PARTS WITHOUT COMMENT.  FIVE OF THEM
STATED THAT THEY SOLD A SMALL AMOUNT OF THE CHICKEN PARTS AND GAVE AWAY
THE BALANCE; ONE REMARKED THAT HE COULD NOT SELL ANY PARTS AND WAS
FORCED TO DUMP THEM.  THERE WAS NO EXPLICIT EVIDENCE THAT ANY OF THE
BUTCHERS PROTESTED, SOUGHT TO RETURN THE CHICKEN PARTS OR ASKED TO BUY
THE POULTRY SEPARATELY.  IT WAS REASONABLE, HOWEVER, FOR THE JURY TO
FIND THAT THE SALE OF POULTRY WAS CONDITIONED UPON THE SIMULTANEOUS
SALE OF THE CHICKEN PARTS AND NO CONTRARY CLAIM IS MADE BEFORE US. 

SEVERAL TIMES THE PETITIONER TRIED TO INTRODUCE TESTIMONY
ESTABLISHING THAT THERE WAS A DEMAND FOR CHICKEN PARTS AND THAT THEY
WERE OF VALUE.  PETITIONER'S COUNSEL STATED THAT "THE GOVERNMENT HAS
INFERRED THROUGH ALL OF ITS TESTIMONY THAT CHICKEN SKIN AND CHICKEN
FEET ARE SO MUCH WASTE, THAT THEY ARE DUMPED; THAT THEY ARE NOT USED
AND THEY HAVE OPENED UP THE DOOR TO THIS TYPE OF TESTIMONY."  BUT THE
TRIAL JUDGE RULED THAT THE GOVERNMENT HAD NOT PUT THAT MATTER IN ISSUE
AND THAT THE "ONLY THING WE ARE CONCERNED WITH IS WHETHER OR NOT THE
WITNESSES WHO TESTIFIED PURCHASED CHICKEN FEET TO MEET A DEMAND IN
THEIR STORES."  HE ACCORDINGLY REFUSED TO ADMIT THE PROFFERED TESTIMONY
FROM PETITIONER'S WITNESSES, STATING TO PETITIONER'S COUNSEL THAT "I
DIRECT YOU NOT TO PUT THEM ON THE STAND  ..." 

ON CROSS EXAMINATION, HOWEVER, PETITIONER'S PRESIDENT WAS QUESTIONED
AS TO THE RESALE VALUE OF CHICKEN SKINS FROM THE RETAILER TO THE
GENERAL PUBLIC.  HE STATED THAT THE VALUE WAS FROM 25 TO 30 CENTS A
POUND AND THAT THE SKIN WAS USED TO MAKE CHICKEN FAT.  HE ALSO
TESTIFIED THAT CHICKEN FEET HAD A RESALE VALUE OF FROM 12 TO 16 CENTS A
POUND AND WERE USED IN MAKING SOUP AND GELATIN.  HE FURTHER STATED THAT
THE DEMAND FOR CHICKEN FEET CAME FROM RETAIL BUTCHERS SUCH AS HAD BEEN
ON THE STAND.  PETITIONER'S COUNSEL THEN RECALLED ONE OF THE RETAIL
BUTCHERS WHOSE TESTIMONY PREVIOUSLY HAD BEEN EXCLUDED BY THE COURT.  HE
TESTIFIED THAT HE HAD BOUGHT CHICKEN FEET FROM THE PETITIONER, HAD
"CREATED A DEMAND" FOR THEM IN HIS STORE, AND HAD SOLD THEM FOR FROM 15
TO 20 CENTS A POUND.  NO FURTHER WITNESSES WERE CALLED IN REGARD TO THE
RETAIL VALUE OF CHICKEN FEET AND SKINS. 

IN SUBMITTING THE CASE TO THE JURY, THE JUDGE STATED THAT "WHAT THESE
DEFENDANTS ARE CHARGED WITH HAVING DONE IS IMPOSING AS A NECESSARY
CONDITION TO THE PURCHASE OF TURKEYS THE SIMULTANEOUS PURCHASE OF
GIZZARDS, CHICKEN FEET OR CHICKEN SKIN, THAT WERE UTTERLY USELESS AND
VALUELESS TO THE PURCHASERS.  IN ORDER TO VIOLATE THE LAW THESE
DEFENDANTS MUST HAVE MADE MORE THAN THE FIXED PRICE OF 37 1/2 CENTS ON
THE CHICKENS, OR THE TURKEY PRICE OF 40 TO 45 CENTS.  AND THE TESTIMONY
ABOUT THE USE OF THESE ADDITIONAL ARTICLES SOLD, THE USE THAT CAN BE
MADE OF THEM, WILL ENABLE YOU TO DETERMINE THAT THEY WERE SOLD AT
PRICES - AND THE PRICES ARE ON ALL THESE SLIPS THAT ARE IN EVIDENCE -
ENTIRELY OUT OF LINE WITH ANY VALUE THAT ATTACHES TO THEM, SO THAT IT
IS ALMOST ENTIRELY PROFIT TO THESE DEFENDANTS, AND IN DOING THAT, BY
MAKING THE PURCHASE OF THESE THINGS AT THE PRICES FIXED, THE DEFENDANTS
BOTH REALIZED A GREATER CONSIDERATION THAN THE OFFICE OF PRICE
ADMINISTRATION ALLOWS FOR THE COMMODITY SOLD."  HE ALSO TOLD THE JURY
THAT THE "ONE QUESTION IN THE CASE IS WHETHER THE SALE OF THE CHICKEN
SKIN AND FEET WAS A NECESSARY CONDITION TO THE PURCHASE OF THE OTHER
(POULTRY)." 

THE JURY ACQUITTED PETITIONER'S PRESIDENT BUT CONVICTED THE
PETITIONER ON NINE COUNTS.  PETITIONER WAS FINED $2,500 ON EACH COUNT,
A TOTAL OF $22,500.  THE CONVICTION WAS AFFIRMED BY THE COURT BELOW,
ONE JUDGE DISSENTING BECAUSE OF THE EXCLUSION OF PETITIONER'S PROFFERED
TESTIMONY.  149 F.2D 773.  IN OUR OPINION, HOWEVER, THE CONVICTION MUST
BE SET ASIDE. 

CRIMINAL SANCTIONS ON "ANY PERSON WHO WILLFULLY VIOLATES ANY PROVISION
OF SECTION 4 OF THIS ACT  ..."  SECTION 4(A) OF THE ACT IN TURN
PROVIDES THAT "IT SHALL BE UNLAWFUL  ...  FOR ANY PERSON TO SELL OR
DELIVER ANY COMMODITY,  ...  IN VIOLATION OF ANY REGULATION OR ORDER
UNDER SECTION 2  ..."  SECTION 2(A) AUTHORIZES THE PRICE ADMINISTRATOR
UNDER PRESCRIBED CONDITIONS TO ESTABLISH BY REGULATION OR ORDER SUCH
MAXIMUM PRICES "AS IN HIS JUDGMENT WILL BE GENERALLY FAIR AND EQUITABLE
AND WILL EFFECTUATE THE PURPOSES OF THIS ACT."  SECTION 2(G) FURTHER
STATES THAT "REGULATIONS, ORDERS, AND REQUIREMENTS UNDER THIS ACT MAY
CONTAIN SUCH PROVISIONS AS THE ADMINISTRATOR DEEMS NECESSARY TO PREVENT
THE CIRCUMVENTION OR EVASION THEREOF." 

THE PRICE ADMINISTRATOR, PURSUANT TO SEC. 2(A), ISSUED REVISED
MAXIMUM PRICE REGULATION NO. 269 ON DECEMBER 18, 1942,  FN3  WHICH
REGULATION WAS IN EFFECT AT THE TIME THE POULTRY SALES IN QUESTION WERE
MADE.  SECTION 1429.5 OF THIS REGULATION, REFERRED TO IN THE
INFORMATIONS, STEMS FROM SEC. 2(G) OF THE ACT.  IT IS ENTITLED
"EVASION" AND READS AS FOLLOWS:  "PRICE LIMITATIONS SET FORTH IN THIS
REVISED MAXIMUM PRICE REGULATION NO. 269 SHALL NOT BE EVADED WHETHER BY
DIRECT OR INDIRECT METHODS, IN CONNECTION WITH ANY OFFER, SOLICITATION,
AGREEMENT, SALE, DELIVERY, PURCHASE OR RECEIPT OF, OR RELATING TO, THE
COMMODITIES PRICES OF WHICH ARE HEREIN REGULATED, ALONE OR IN
CONJUNCTION WITH ANY OTHER COMMODITY, OR BY WAY OF COMMISSION, SERVICE,
TRANSPORTATION, OR OTHER CHARGE, OR DISCOUNT, PREMIUM, OR OTHER
PRIVILEGE OR OTHER TRADE UNDERSTANDING OR OTHERWISE." 

THE MANIFEST PURPOSE OF CONGRESS IN ENACTING THIS STATUTE WAS TO
PRESERVE AND PROTECT THE ECONOMIC BALANCE OF THE NATION DURING A PERIOD
OF GRAVE EMERGENCY, THEREBY ACHIEVING THE PREVENTION OF INFLATION AND
ITS CONSEQUENCES ENUMERATED IN SEC. 1.  YAKUS V. UNITED STATES, 321
U.S. 414, 423.  THAT AIM WAS IMPLEMENTED BY CRIMINAL SANCTIONS TO BE
IMPOSED ON THOSE WHO DELIBERATELY CHOOSE TO IGNORE THE NATIONAL WELFARE
IN THIS RESPECT BY SELLING COMMODITIES AT PRICES ABOVE ESTABLISHED
LEVELS.  AS APPEARS FROM A COMBINED READING OF SECS. 205(B), 4(A) AND
2(A), CRIMINAL LIABILITY ATTACHES TO ANY ONE WHO WILLFULLY SELLS
COMMODITIES IN VIOLATION OF A REGULATION OR ORDER OF THE PRICE
ADMINISTRATOR ESTABLISHING MAXIMUM PRICES.  FN4  CF. UNITED STATES V.
EATON, 144 U.S. 677.  RECOGNIZING THAT SALES AT ABOVE-CEILING PRICES
MAY BE ACCOMPLISHED BY DEVIOUS AS WELL AS BY DIRECT MEANS, CONGRESS IN
SEC. 2(G) AUTHORIZED THE ADMINISTRATOR TO MAKE PROVISIONS AGAINST
CIRCUMVENTION AND EVASION OF MAXIMUM PRICES.  HENCE ONE WHO WILLFULLY
SELLS COMMODITIES AT PRICES ABOVE THE MAXIMUM IN AN EVASIVE MANNER
SPECIFIED BY THE ADMINISTRATOR SUBJECTS ONESELF TO CRIMINAL LIABILITY. 
THESE STATUTORY WARNINGS ARE CLEAR AND UNAMBIGUOUS.  WHEN INCORPORATED
WITH SUCH DEFINITE AND CLEAR REGULATIONS AND ORDERS AS THE
ADMINISTRATOR MAY PROMULGATE, THE PROVISIONS OF THE ACT LEAVE NO DOUBT
AS TO THE CONDUCT THAT WILL RENDER ONE LIABLE TO CRIMINAL PENALTIES. 

THIS DELEGATION TO THE PRICE ADMINISTRATOR OF THE POWER TO PROVIDE IN
DETAIL AGAINST CIRCUMVENTION AND EVASION, AS TO WHICH CONGRESS HAS
IMPOSED CRIMINAL SANCTIONS, CREATES A GRAVE RESPONSIBILITY.  IN A VERY
LITERAL SENSE THE LIBERTIES AND FORTUNES OF OTHERS MAY DEPEND UPON HIS
DEFINITIONS AND SPECIFICATIONS REGARDING EVASION.  HENCE TO THESE
PROVISIONS MUST BE APPLIED THE SAME STRICT RULE OF CONSTRUCTION THAT IS
APPLIED TO STATUTES DEFINING CRIMINAL ACTION.  IN OTHER WORDS, THE
ADMINISTRATOR'S PROVISIONS MUST BE EXPLICIT AND UNAMBIGUOUS IN ORDER TO
SUSTAIN A CRIMINAL PROSECUTION; THEY MUST ADEQUATELY INFORM THOSE WHO
ARE SUBJECT TO THEIR TERMS WHAT CONDUCT WILL BE CONSIDERED EVASIVE SO
AS TO BRING THE CRIMINAL PENALTIES OF THE ACT INTO OPERATION.  SEE
UNITED STATES V. WILTBERGER, 5 WHEAT.  76, 94-96.  THE DIVIDING LINE
BETWEEN UNLAWFUL EVASION AND LAWFUL ACTION CANNOT BE LEFT TO
CONJECTURE.  THE ELEMENTS OF EVASIVE CONDUCT SHOULD BE SO CLEARLY
EXPRESSED BY THE ADMINISTRATOR THAT THE ORDINARY PERSON CAN KNOW IN
ADVANCE HOW TO AVOID AN UNLAWFUL COURSE OF ACTION. 

IN APPLYING THIS STRICT RULE OF CONSTRUCTION TO THE PROVISIONS
ADOPTED BY THE ADMINISTRATOR, COURTS MUST TAKE CARE NOT TO CONSTRUE SO
STRICTLY AS TO DEFEAT THE OBVIOUS INTENTION OF THE ADMINISTRATOR. 
WORDS USED BY HIM TO DESCRIBE EVASIVE ACTION ARE TO BE GIVEN THEIR
NATURAL AND PLAIN MEANING, SUPPLEMENTED BY CONTEMPORANEOUS OR LONG
STANDING INTERPRETATIONS PUBLICLY MADE BY THE ADMINISTRATOR.  BUT
PATENT OMISSIONS AND UNCERTAINTIES CANNOT BE DISREGARDED WHEN DEALING
WITH A CRIMINAL PROSECUTION.  A PROSECUTOR IN FRAMING AN INDICTMENT, A
COURT IN INTERPRETING THE ADMINISTRATOR'S REGULATIONS OR A JURY IN
JUDGING GUILT CANNOT SUPPLY THAT WHICH THE ADMINISTRATOR FAILED TO DO
BY EXPRESS WORD OR FAIR IMPLICATION.  NOT EVEN THE ADMINISTRATOR'S
INTERPRETATIONS OF HIS OWN REGULATIONS CAN CURE AN OMISSION OR ADD
CERTAINTY AND DEFINITENESS TO OTHERWISE VAGUE LANGUAGE.  THE PROHIBITED
CONDUCT MUST, FOR CRIMINAL PURPOSES, BE SET FORTH WITH CLARITY IN THE
REGULATIONS AND ORDERS WHICH HE IS AUTHORIZED BY CONGRESS TO PROMULGATE
UNDER THE ACT.  CONGRESS HAS WARNED THE PUBLIC TO LOOK TO THAT SOURCE
ALONE TO DISCOVER WHAT CONDUCT IS EVASIVE AND HENCE LIKELY TO CREATE
CRIMINAL LIABILITY.  UNITED STATES V. RESNICK, 299 U.S. 207. 

IN LIGHT OF THESE PRINCIPLES WE ARE UNABLE TO SUSTAIN THIS CONVICTION
OF THE PETITIONER BASED UPON SEC. 1429.5 OF REVISED MAXIMUM PRICE
REGULATION NO. 269.  FOR PURPOSES OF THIS CASE WE MUST ASSUME THAT THE
ADMINISTRATOR LEGALLY COULD INCLUDE TYING AGREEMENTS AND COMBINATION
SALES INVOLVING THE SALE OF VALUABLE SECONDARY COMMODITIES AT THEIR
MARKET VALUE AMONG THE PROHIBITED EVASION DEVICES.  ANY PROBLEM AS TO
HIS POWER SO TO PROVIDE WOULD HAVE TO BE RAISED INITIALLY IN A
PROCEEDING BEFORE THE EMERGENCY COURT OF APPEALS.  LOCKERTY V.
PHILLIPS, 319 U.S. 182; YAKUS V. UNITED STATES, 321 U.S. 414, 427-431;
BOWLES V. SEMINOLE ROCK CO., 325 U.S. 410, 418-419; CASE V. BOWLES, 327
U.S. 92, 98.  THE ONLY ISSUE BEARING UPON THE REGULATION WHICH IS OPEN
IN THIS CRIMINAL PROCEEDING IS WHETHER THE ADMINISTRATOR DID IN FACT
CLEARLY AND UNMISTAKABLY PROHIBIT TYING AGREEMENTS OF THIS NATURE BY
VIRTUE OF THE LANGUAGE HE USED IN SEC. 1429.5.  THAT ISSUE WE ANSWER IN
THE NEGATIVE.  FN5    SECTION 1429.5, SO FAR AS HERE PERTINENT,
PROVIDES THAT PRICE LIMITATIONS SHALL NOT BE EVADED BY ANY METHOD,
DIRECT OR INDIRECT, WHETHER IN CONNECTION WITH ANY OFFER OR SALE OF A
PRICE-REGULATED COMMODITY ALONE "OR IN CONJUNCTION WITH ANY OTHER
COMMODITY," OR BY WAY OF ANY TRADE UNDERSTANDING "OR OTHERWISE."  NO
SPECIFIC MENTION IS MADE OF TYING AGREEMENTS OR COMBINATION SALES. 

IT IS URGED BY THE GOVERNMENT THAT THIS LANGUAGE FITS THE TYPE OF
TYING AGREEMENT ALLEGEDLY USED BY PETITIONER.  THE CONTENTION IS THAT
PETITIONER RECEIVED FOR THE PRIMARY COMMODITY NOT ONLY THE CEILING
PRICE BUT ALSO THE PRICE OF THE SECONDARY COMMODITIES WHICH THE
RETAILERS WERE REQUIRED TO BUY.  CONVERSELY, THE RETAILERS WERE
COMPELLED TO PAY NOT ONLY THE CEILING PRICE BUT ALSO THE PRICE OF THE
SECONDARY COMMODITIES IN ORDER TO SECURE THE PRIMARY COMMODITY, THE
POULTRY.  UNDER THIS THEORY IT IS IMMATERIAL WHETHER THE SECONDARY
PRODUCTS, THE CHICKEN PARTS, HAD ANY VALUE TO THE RETAILERS OR WHETHER
THEIR PRICE WAS A REASONABLE ONE.  REFERENCE IS MADE IN THIS RESPECT TO
SEC. 302(B) OF THE ACT, DEFINING PRICE AS "THE CONSIDERATION DEMANDED
OR RECEIVED IN CONNECTION WITH THE SALE OF A COMMODITY."  HENCE IT IS
CONCLUDED THAT THE PRICE LIMITATION ON THE PRIMARY COMMODITY WAS EVADED
"IN CONJUNCTION WITH ANY OTHER COMMODITY" WITHIN THE MEANING OF SEC.
1429.5.  THIS ARGUMENT, MOREOVER, REPRESENTS THE CONSISTENT
INTERPRETATION OF THE ADMINISTRATOR.  FN6 

BUT WE DO NOT BELIEVE THAT, UNDER THE STRICT RULE OF CONSTRUCTION
PREVIOUSLY DISCUSSED, SUCH AN INTERPRETATION OF SEC. 1429.5 IS DICTATED
BY ITS PLAIN LANGUAGE.  IT PROHIBITS EVASIONS THROUGH SALES OF PRICE
REGULATED COMMODITIES "IN CONJUNCTION WITH ANY OTHER COMMODITY."  THAT
CLEARLY AND UNDENIABLY PROHIBITS EVASIONS THROUGH THE USE OF TYING
AGREEMENTS WHERE THE TIED-IN COMMODITY IS WORTHLESS OR IS SOLD AT AN
ARTIFICIAL PRICE, THEREBY HIDING AN ABOVE-CEILING PRICE FOR THE PRIMARY
COMMODITY.  BUT TO SAY THAT THE LANGUAGE COVERS MORE, THAT IT ALSO
APPLIES TO A CASE WHERE THE SECONDARY PRODUCT HAS VALUE AND IS SOLD AT
ITS CEILING OR MARKET PRICE, IS TO INTRODUCE AN ELEMENT OF CONJECTURE
AND TO GIVE EFFECT TO AN UNSTATED JUDGMENT OF POLICY. 

THE LANGUAGE OF SEC. 1429.5 IS APPROPRIATE TO AND CONSISTENT WITH A
DESIRE ON THE ADMINISTRATOR'S PART TO PROHIBIT ONLY THOSE TYING
AGREEMENTS INVOLVING TIED-IN COMMODITIES THAT ARE WORTHLESS OR THAT ARE
SOLD AT ARTIFICIAL PRICES.  THE ADMINISTRATOR MAY HAVE THOUGHT THAT
OTHER TIED-IN SALES DID NOT CONSTITUTE A SUFFICIENT THREAT TO THE PRICE
ECONOMY OF THE NATION TO WARRANT THEIR OUTLAWRY, OR THAT THEY WERE SUCH
AN ESTABLISHED TRADE CUSTOM THAT THEY SHOULD BE RECOGNIZED.  BUT WE ARE
TOLD THAT HE HAD NO SUCH THOUGHT, THAT PROHIBITION OF ALL TYING
AGREEMENTS IS ESSENTIAL TO PREVENT PROFITEERING, AND THAT THIS BLANKET
PROHIBITION IS THE ONLY POLICY CONSISTENT WITH THE PURPOSES OF THE
ACT.  ALL OF THIS MAY WELL BE TRUE.  BUT THESE ARE ADMINISTRATIVE
JUDGMENTS WITH WHICH THE COURTS HAVE NO CONCERN IN A CRIMINAL
PROCEEDING.  WE MUST LOOK SOLELY TO THE LANGUAGE ACTUALLY USED IN SEC.
1429.5.  AND WHEN WE DO WE ARE UNABLE TO SAY THAT THE ADMINISTRATOR HAS
MADE HIS POSITION IN THIS RESPECT SELF-EVIDENT FROM THE LANGUAGE USED. 

THE ADMINISTRATOR'S FAILURE TO EXPRESS ADEQUATELY HIS INTENTIONS IN
SEC. 1429.5 IS EMPHASIZED BY THE COMPLETE AND UNMISTAKABLE LANGUAGE HE
HAS USED IN OTHER PRICE REGULATIONS TO PROHIBIT ALL TYING AGREEMENTS,
INCLUDING THOSE INVOLVING THE SALE OF VALUABLE SECONDARY PRODUCTS. 
THUS HE HAS INSERTED IN THE MEAT REGULATION A PROVISION PROHIBITING
EVASION OF PRICE LIMITATIONS BY "OFFERING, SELLING OR DELIVERING BEEF,
VEAL OR ANY PROCESSED PRODUCT ON CONDITION THAT THE PURCHASER IS
REQUIRED TO PURCHASE SOME OTHER COMMODITY."  SEC. 1364.406, REVISED
MAXIMUM PRICE REGULATION NO. 169, AS AMENDED MARCH 30, 1943, 8 FED.
REG. 4099.  AND IN THE CLOTHING REGULATION, THE ADMINISTRATOR HAS
PROVIDED THAT "NO MANUFACTURER SHALL MAKE A SALE OF GARMENTS WHICH IS
CONDITIONED DIRECTLY OR INDIRECTLY ON THE PURCHASE OF ANY OTHER
COMMODITY OR SERVICE."  SEC. 15, REVISED MAXIMUM PRICE REGULATION NO.
287, ISSUED JUNE 29, 1943, 8 FED. REG. 9126.  SEE ALSO SEC. 1389.555,
MAXIMUM PRICE REGULATION NO. 330, AS AMENDED AUGUST 7, 1943, 8 FED.
REG. 11041. 

THE VERY DEFINITENESS WITH WHICH TYING AGREEMENTS OF ALL TYPES WERE
PROHIBITED IN REGARD TO MANY OTHER COMMODITIES AND THE ABSENCE OF ANY
SUCH PROHIBITION IN SEC. 1429.5 OF REVISED MAXIMUM PRICE REGULATION NO.
269 MIGHT WELL HAVE LED A REASONABLE MAN TO BELIEVE THAT TYING
AGREEMENTS INVOLVING THE SALE OF A VALUABLE SECONDARY COMMODITY AT ITS
MARKET PRICE WERE PERMISSIBLE IN THE POULTRY BUSINESS WHEN THE
TRANSACTIONS IN QUESTION TOOK PLACE.  CERTAINLY THE LANGUAGE USED BY
THE ADMINISTRATOR DID NOT COMPEL THE OPPOSITE CONCLUSION.  AND
CERTAINLY A CRIMINAL CONVICTION OUGHT NOT TO REST UPON AN
INTERPRETATION REACHED BY THE USE OF POLICY JUDGMENTS RATHER THAN BY
THE INEXORABLE COMMAND OF RELEVANT LANGUAGE. 

IN VIEW OF THESE CONSIDERATIONS WE INTERPRET SEC. 1429.5 AS
PROHIBITING ONLY THOSE TYING AGREEMENTS INVOLVING SECONDARY PRODUCTS
THAT ARE WORTHLESS OR THAT ARE SOLD AT ARTIFICIAL PRICES.  IT FOLLOWS
THAT THE CONVICTION BELOW CANNOT STAND.  WHILE THE INFORMATIONS CAN BE
INTERPRETED AS CHARGING A CRIME UNDER SEC. 1429.5 AS WE HAVE READ IT,
THE TRIAL JUDGE'S CHARGE TO THE JURY WAS CLEARLY ERRONEOUS.  THERE WAS
EVIDENCE, AT FIRST EXCLUDED BUT LATER ADMITTED, THAT THE CHICKEN PARTS
WHICH THE PETITIONER SOLD DID HAVE VALUE AND WERE SOLD AT THEIR MARKET
PRICE.  IF THE JURY BELIEVED SUCH EVIDENCE IT WAS ENTITLED TO ACQUIT
THE PETITIONER.  BUT THE TRIAL JUDGE CHARGED THAT THE "ONE" QUESTION IN
THE CASE WAS WHETHER THE SALE OF THE CHICKEN PARTS WAS A NECESSARY
CONDITION TO THE PURCHASE OF THE POULTRY.  ON THE BASIS OF THAT CHARGE
THE JURY MAY WELL HAVE DISREGARDED AS IRRELEVANT THE EVIDENCE OF VALUE
AS TO THE SECONDARY PRODUCTS AND CONVICTED SOLELY ON THE GROUND THAT
THERE WAS A TIE-IN SALE.  SUCH A CHARGE IS THUS REVERSIBLE ERROR. 

THERE WERE ADDITIONAL STATEMENTS IN THE CHARGE TO THE JURY, TO BE
SURE, THAT THE PETITIONER WAS CHARGED WITH HAVING COMPELLED, IN
CONNECTION WITH THE PURCHASE OF POULTRY, THE SIMULTANEOUS PURCHASE OF
CHICKEN PARTS "THAT WERE UTTERLY USELESS AND VALUELESS TO THE
PURCHASERS" AND AT PRICES "ENTIRELY OUT OF LINE WITH ANY VALUE THAT
ATTACHES TO THEM."  WHILE SUCH STATEMENTS TENDED TO CHARGE A VIOLATION
OF SEC. 1429.5, AS PROPERLY INTERPRETED, THEY WERE SO INTERTWINED WITH
THE INCORRECT CHARGE AS TO NEGATIVE THEIR EFFECT.  "A CONVICTION OUGHT
NOT TO REST ON AN EQUIVOCAL DIRECTION TO THE JURY ON A BASIC ISSUE." 
BOLLENBACH V. UNITED STATES, 326 U.S. 607, 613. 

THE CASE MUST THEREFORE BE REMANDED FOR A NEW TRIAL, ALLOWING FULL
OPPORTUNITY FOR THE INTRODUCTION OF EVIDENCE AS TO THE VALUE OF THE
CHICKEN PARTS AND CHARGING THE JURY IN ACCORDANCE WITH THE PROPER
INTERPRETATION OF SEC. 1429.5.  IT IS SO ORDERED. 

FN1  56 STAT. 23; 50 U.S.C. APP. SEC. 901 ET SEQ. 

FN2  7 FED. REG. 10708; REISSUED WITH AMENDMENTS, 8 FED. REG. 13813. 

FN3  REISSUED WITH AMENDMENTS ON OCTOBER 8, 1943.  SEE NOTE 2. 

FN4  SECTION 205(B) IS SOMEWHAT INARTISTICALLY DRAWN.  IT DOES NOT
SPECIFICALLY IMPOSE CRIMINAL LIABILITY ON THOSE WHO VIOLATE THE
REGULATIONS AND ORDERS OF THE ADMINISTRATOR.  BUT THE HURDLE OF UNITED
STATES V. EATON, 144 U.S. 677, IS CLEARED BY THE REFERENCE IN SEC.
205(B) TO SEC. 4, WHICH MAKES IT UNLAWFUL, AMONG OTHER THINGS, TO SELL
OR DELIVER ANY COMMODITY IN VIOLATION OF ANY REGULATION OR ORDER.  SEE
IN RE KOLLOCK, 165 U.S. 526; UNITED STATES V. GRIMAUD, 220 U.S. 506;
UNITED STATES V. GEORGE, 228 U.S. 14; SINGER V. UNITED STATES, 323 U.S.
338.  CONGRESS HAS SUBSEQUENTLY EMPHASIZED THIS REFERENCE EVEN MORE
CLEARLY WHEN, IN ADDING SEC. 204(E)(1) TO THE EMERGENCY PRICE CONTROL
ACT, IT SPOKE OF A CRIMINAL PROCEEDING "BROUGHT PURSUANT TO SECTION 205
INVOLVING ALLEGED VIOLATION OF ANY PROVISION OF ANY REGULATION OR ORDER
ISSUED UNDER SECTION 2 ..."  SEC. 107(B), STABILIZATION EXTENSION ACT
OF 1944, 58 STAT. 639.  SEE ALSO SEC. 6, ACT OF JUNE 30, 1945, C. 214,
59 STAT. 306, 308, AMENDING SEC. 204(E)(1) OF THE EMERGENCY PRICE
CONTROL ACT. 

FN5  CF. UNITED STATES V. GEORGE F. FISH, INC., 154 F.2D 798. 

FN6  THE PRICE ADMINISTRATOR HAS CONSISTENTLY MAINTAINED THE POSITION
THAT COMPULSION TO PURCHASE A SECONDARY PRODUCT IS AN EVASION OF THE
MAXIMUM PRICES FIXED FOR THE PRIMARY PRODUCT.  THUS, IN AN
INTERPRETATION ISSUED NOVEMBER 5, 1943, APPLICABLE TO ALL MAXIMUM PRICE
REGULATIONS, THE ADMINISTRATOR, IN DISCUSSING VIOLATIONS AND EVASIONS,
MADE THE FOLLOWING INTERPRETATION AS TO TYING AGREEMENTS: 

"(A)  AS TO FREEZE REGULATIONS:  A PURCHASER MAY NOT BE REQUIRED TO
BUY A COMBINATION OF COMMODITIES IF HE WAS NOT REQUIRED TO DO SO DURING
THE BASE PERIOD, BECAUSE SUCH AN ARRANGEMENT IS A TYING AGREEMENT WHICH
RESULTS IN THE SELLER RECEIVING A LARGER CONSIDERATION FOR HIS
COMMODITY THAN HE CHARGED DURING THE BASE PERIOD. 

"(B)  AS TO REGULATIONS OTHER THAN BASE PERIOD FREEZE REGULATIONS:
OPA HAS ALSO CONSISTENTLY HELD THAT ANY ARRANGEMENT BY WHICH A SELLER
CONDITIONS THE SALE OF A COMMODITY IN ANY MANNER UPON THE PURCHASE BY
THE BUYER OF ANY OTHER COMMODITY IS A TYING AGREEMENT, AND CONSTITUTES
A VIOLATION. 

"FOR EXAMPLE, IT IS A VIOLATION FOR A SELLER TO COMPEL A PURCHASER OF
A LOAD OF CORN TO ALSO PURCHASE A LOAD OF ALFALFA, EVEN THOUGH THE
TOTAL PRICE FOR THE CORN, PLUS THE ALFALFA, DOES NOT EXCEED THE
AGGREGATE OF THE CEILING PRICE FOR EACH ITEM, OR ANOTHER EXAMPLE:  IT
IS A VIOLATION FOR A SELLER TO COMPEL A PURCHASER OF NYLON HOSE TO ALSO
PURCHASE A WAR BOND." 

O.P.A. SERVICE (PIKE & FISCHER) VOL. I, P. 2:  812. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IF A RETAILER SOLD MEAT OR ANY OTHER COMMODITY TO A CONSUMER ONLY ON
CONDITION THAT HE PURCHASE AND PAY FOR A WHOLLY WORTHLESS ARTICLE, IT
WOULD BE CLEAR THAT PRICE CEILINGS HAD BEEN VIOLATED.  FOR THE
ATTRIBUTION OF VALUE TO THE WORTHLESS ARTICLE WOULD BE NOTHING MORE
THAN AN EVASIVE METHOD OF INCREASING THE CEILING PRICE ON THE OTHER
COMMODITY.  I CAN SEE NO DIFFERENCE WHERE THE ADDITIONAL COMMODITY,
ALTHOUGH IT HAS VALUE, HAS NO VALUE TO THE PURCHASER. 

BUT THIS CASE IS DIFFERENT IN BOTH RESPECTS OR SO THE JURY MIGHT
FIND.  FIRST, CHICKEN GIZZARDS, CHICKEN SKIN, OR CHICKEN FEET ARE NOT
WHOLLY WORTHLESS ARTICLES.  THERE IS DEMAND FOR THEM AND THEY HAVE A
VALUE.  SECOND, THEY WERE TIED-IN WITH SALES TO RETAILERS WHO
CONSTITUTE THE MARKET FOR CHICKEN GIZZARDS, CHICKEN SKIN, AND CHICKEN
FEET.  IF IN FACT THEY HAD NO VALUE ON THAT MARKET, EVASION OF PRICE
CEILINGS WOULD BE ESTABLISHED.  BUT SINCE THEY APPARENTLY HAD SOME
VALUE ON THE RETAIL MARKET, NO VIOLATION OF PRICE CEILINGS OCCURRED
UNLESS THE PRICE CHARGED FOR THEM IN FACT EXCEEDED THAT MARKET VALUE. 
THAT MIGHT BE SHOWN EITHER BY PROOF OF THE FACT THAT THE MARKET VALUE
WAS LOWER OR BY SHOWING THAT THE QUANTITY FORCED ON THE RETAILERS WAS
IN EXCESS OF THE QUANTITY WHICH THE MARKET COULD ABSORB. 

THE CASE SHOULD BE REMANDED FOR A NEW TRIAL ON THAT BASIS.  FOR THE
TRIAL COURT RULED THAT THE ADDITIONAL ARTICLES SOLD WERE VALUELESS AND
THAT THE "ONE QUESTION IN THE CASE IS WHETHER THE SALE OF THE CHICKEN
SKIN AND FEET WAS A NECESSARY CONDITION TO THE PURCHASE OF THE OTHER." 
THAT RULING TOOK FROM THE JURY THE BASIC ISSUE IN THE CASE. 

I THINK THERE WAS EVIDENCE THAT THESE CHICKEN GIZZARDS, CHICKEN SKIN,
AND CHICKEN FEET WERE VALUELESS TO SOME OF THE RETAILERS AND THAT A
CONVICTION WOULD BE WARRANTED.  BUT IT IS NOT ENOUGH THAT WE CONCLUDE
ON THE WHOLE RECORD THAT A DEFENDANT IS GUILTY.  BOLLENBACH V. UNITED
STATES, 326 U.S. 607.  THE JURY UNDER OUR CONSTITUTIONAL SYSTEM IS THE
TRIBUNAL SELECTED FOR THE ASCERTAINMENT OF GUILT. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I AM IN AGREEMENT WITH THE RESULT AND SUBSTANTIALLY SO WITH MR.
JUSTICE MURPHY'S OPINION.  I DO NOT THINK THAT ADMINISTRATIVE
REGULATIONS, GIVEN BY STATUTE THE FUNCTION OF DEFINING THE SUBSTANCE OF
CRIMINAL CONDUCT, SHOULD HAVE BROADER OR MORE INCLUSIVE CONSTRUCTION
THAN STATUTES PERFORMING THE SAME FUNCTION.  IF THE REGULATIONS
INVOLVED HERE HAD BEEN ENACTED SPECIFICALLY BY CONGRESS IN STATUTORY
FORM, I DO NOT THINK THEY COULD PROPERLY BE CONSTRUED TO FORBID TIE-IN
SALES OF THESE COMMODITIES PER SE. 

AS THE OPINION POINTS OUT, THE REGULATIONS, WITH REFERENCE TO OTHER
COMMODITIES, EXPRESSLY PROHIBITED TIE-IN SALES, REGARDLESS OF WHETHER
THE TIED-IN COMMODITY HAD VALUE.  PERSONS DEALING IN THOSE COMMODITIES
WERE SPECIFICALLY INFORMED BY THE REGULATIONS, THEREFORE, THAT SUCH
SALES WOULD BE IN VIOLATION OF THE ACT.  THERE WAS NO SUCH SPECIFIC
PROHIBITION APPLICABLE AT THE TIME OF THE SALES IN QUESTION TO SALES OF
POULTRY.  HOWEVER THE GENERAL PROHIBITION AGAINST EVASION CONTAINED IN
SEC. 1429.5 OF REVISED MAXIMUM PRICE REGULATION NO. 269 MIGHT BE
INTERPRETED, IF THERE HAD BEEN NO REGULATIONS SPECIFICALLY FORBIDDING
TIE-IN SALES OF OTHER COMMODITIES, IN VIEW OF THEIR EXISTENCE AND THE
ABSENCE OF ANY SIMILAR PROVISION RELATING TO POULTRY, I DO NOT THINK IT
PERMISSIBLE TO CONSTRUE SEC. 1429.5 AS COVERING THE SAME GROUND. 
PERSONS READING THE REGULATIONS TO DETERMINE WHAT CONDUCT HAD BEEN
FORBIDDEN WERE ENTITLED IN MY OPINION TO CONCLUDE THAT THE
ADMINISTRATOR, WHENEVER HE THOUGHT TIE-IN SALES WERE PER SE EVASIVE OR
IN VIOLATION OF THE ACT'S POLICY, HAD EXPRESSLY SO STATED AND
CONVERSELY THAT WHERE HE HAD NOT EXPRESSLY FORBIDDEN THE PRACTICE, IT
WAS NOT TO BE UNDERSTOOD AS PROHIBITED BY GENERAL LANGUAGE APPLICABLE
TO MANY OTHER TYPES OF SITUATION BUT NOT SPECIFICALLY TO THIS ONE. 
THIS VIEW, I THINK, WOULD BE REQUIRED IF THE REGULATIONS HAD BEEN
ENACTED IN STATUTORY FORM.  AS REGULATIONS THEY CANNOT BE GIVEN BROADER
CONTENT.    ACCORDINGLY I AGREE WITH THE CONCLUSION THAT TIE-IN SALES
WERE NOT FORBIDDEN AT THE TIME OF THESE SALES, AS TO POULTRY.  I ALSO
AGREE THAT THE TRIAL COURT, BOTH IN ITS INSTRUCTIONS AND IN SOME OF ITS
RULINGS UPON THE ADMISSIBILITY OF EVIDENCE, WENT ON A CONCEPTION OF THE
LAW INCONSISTENT WITH THIS VIEW.  I THEREFORE CONCUR IN THE COURT'S
DISPOSITION OF THE CAUSE. 

MR. JUSTICE FRANKFURTER, ALTHOUGH AGREEING WITH THE OPINION OF MR.
JUSTICE MURPHY, ALSO JOINS IN THIS OPINION. 

MR. JUSTICE BLACK, DISSENTING. 

WE WERE AT WAR IN 1943.  SCARCITY OF FOOD HAD BECOME AN ACUTE PROBLEM
THROUGHOUT THE NATION.  TO KEEP THE PUBLIC FROM BEING GOUGED THE
GOVERNMENT HAD SET CEILING PRICES ON FOOD ITEMS.  CONGRESS HAD MADE IT
A CRIME TO SELL FOOD ABOVE THESE CEILING PRICES.  WHEN THANKSGIVING DAY
APPROACHED THERE WERE NOT ENOUGH TURKEYS TO SUPPLY THE DEMAND OF THE
MANY AMERICAN FAMILIES WHO WANTED TO CELEBRATE IN THE CUSTOMARY STYLE. 

THE INFORMATION FILED IN THE DISTRICT COURT CHARGED THAT THE
PETITIONER "UNLAWFULLY, WILFULLY AND KNOWINGLY EVADED THE PROVISIONS OF
..."  REVISED MAXIMUM PRICE REGULATION NO. 269, SEC. 1429.5, BY
COMPELLING AND REQUIRING THE BUYER TO PURCHASE CHICKEN FEET, CHICKEN
SKIN, OR GIZZARDS AT A SPECIFIED PRICE, AS A CONDITION OF THE SALE OF
POULTRY TO THEM.  DURING PEACE TIMES THE PETITIONER HAD ORDINARILY DONE
A GROSS BUSINESS OF SEVEN-AND-A-HALF MILLION DOLLARS A YEAR.  IN 1943,
PRESUMABLY DUE TO THE MEAT SHORTAGE INCIDENT TO THE WAR, THE
PETITIONER'S GROSS BUSINESS WAS NOT QUITE FOUR MILLION DOLLARS.  THIS
MEAT SHORTAGE WAS FELT ACUTELY DURING THE THANKSGIVING SEASON, WHEN
PETITIONER INSTEAD OF HIS USUAL 100 TO 150 CARS OF TURKEYS RECEIVED
ONLY ONE CAR.  WHEN THE RETAIL BUTCHERS AND POULTRY MARKET PROPRIETORS
CAME CLAMORING FOR THEIR SHARE OF THE SMALL SUPPLY (WHICH THE DEFENDANT
RATIONED AMONG THEM) THEY FOUND THAT ALONG WITH THE TURKEYS WHICH THEY
WANTED SO BADLY PETITIONER GAVE AND CHARGED THEM FOR LARGE AMOUNTS OF
CHICKEN FEET, SKINS AND GIZZARDS WHICH THEY HAD NOT ASKED FOR AT ALL
AND WHICH FOR THE MOST PART THEY HAD NEVER BEFORE SOLD AS SEPARATE
ITEMS.  WHILE THE BUTCHERS PAID IN ADDITION TO THE CEILING PRICE
CHARGED FOR THE TURKEYS THE PRICE CHARGED FOR THE CHICKEN SKINS AND
FEET, THEY DID SO ONLY BECAUSE THEY UNDERSTOOD THAT UNLESS THEY BOUGHT
THESE UNWANTED ITEMS THEY COULD GET NO TURKEYS.  ONLY ONE OF THE
BUTCHERS SOLD ALL THE CHICKEN SKINS TO HIS CUSTOMERS.  HE EXPLAINED
THAT HE OPERATED HIS STORE IN A POOR NEIGHBORHOOD WHERE THE FOOD
SHORTAGE HAD BECOME SO ACUTE THAT PEOPLE WERE WILLING TO BUY ANYTHING
THEY COULD GET.  AS TO THE REST OF THE BUTCHERS, SOME SIMPLY DUMPED THE
CHICKEN SKINS AND FEET WHILE OTHERS, AFTER DILIGENT EFFORTS, SOLD A FEW
POUNDS AND THEN GAVE THE REST AWAY EITHER TO THEIR CUSTOMERS, OR TO
CHARITABLE INSTITUTIONS.  CERTAINLY THESE PARTICULAR BUTCHERS FORCED TO
BUY THESE UNWANTED ITEMS FOR THE FIRST TIME WERE NOT THE REGULAR RETAIL
OUTLET FOR DISJOINTED CHICKEN FEET AND PEELED CHICKEN SKINS, IF THERE
EVER WAS SUCH AN OUTLET ON A VOLUNTARY BASIS.  IT IS CLEAR THEREFORE
THAT AS A RESULT OF PETITIONER'S FORCING HIS CUSTOMERS TO BUY THE FEET
AND SKINS ALONG WITH THE TURKEYS, THE RETAILERS' COST PRICE OF THE
TURKEYS WAS IN EFFECT INCREASED BEYOND THE CEILING. 

IN MY OPINION PETITIONER'S PRACTICE IN FORCING THE BUTCHERS TO BUY
UNWANTED CHICKEN FEET IN ORDER TO GET WANTED TURKEYS AMOUNTED TO A
DIRECT VIOLATION OF THE PRICE CONTROL ACT.  IT CERTAINLY WAS NO LESS A
VIOLATION OF THE ADMINISTRATOR'S REGULATION AGAINST EVASION.  IN
PROMULGATING THIS REGULATION THE ADMINISTRATOR COULD NOT POSSIBLY
FORESEE EVERY INGENIOUS SCHEME OR ARTIFICE THE BUSINESS MIND MIGHT
CONTRIVE TO SHROUD VIOLATIONS OF THE PRICE CONTROL ACT.  THE REGULATION
DOES NOT SPECIFICALLY DESCRIBE ALL MANNER OF EVASIVE DEVICE.  THE TERM
"TYING AGREEMENT" NOWHERE APPEARS IN IT AND A DISCUSSION OF SUCH
AGREEMENTS IS IRRELEVANT.  WE NEED NOT DECIDE WHETHER WHAT PETITIONER
DID WOULD HAVE VIOLATED EVERY POSSIBLE HYPOTHETICAL REGULATION THE
ADMINISTRATOR MIGHT HAVE PROMULGATED.  THE REGULATION HERE INVOLVED
PROHIBITS EVERY EVASION OF THE PRICE CONTROL ACT.  IT THUS CONDEMNS ALL
ACTIONS THAT ARE "ON THE WRONG SIDE OF THE LINE INDICATED BY THE POLICY
IF NOT BY THE MERE LETTER OF THE LAW."  BULLEN V. WISCONSIN, 240 U.S.
625, 631.  WHAT PETITIONER DID HERE IS ON THE WRONG SIDE OF BOTH LETTER
AND POLICY.  THE COURT DOES NOT DENY THAT THERE WAS AMPLE EVIDENCE TO
SUPPORT THE JURY'S FINDING THAT PETITIONER DID WHAT THE INFORMATION
CHARGED IT WITH DOING.  IN MY OPINION THAT WAS A CRIME. 

HAD BUTCHERS BEEN REQUIRED TO BUY BAGS OF STONES AS A CONDITION TO
BUYING TURKEYS, I THINK IT WOULD HAVE BEEN HARD TO PERSUADE THEM, OR
ANYBODY ELSE, THAT THE SELLER WHO FORCED THEM TO DO SO WAS NOT GUILTY
OF VIOLATING AND EVADING THE LAW.  HAD PEOPLE WHO WANTED AND NEEDED
BACON, AT THE TIME WHEN BACON WAS ALMOST IMPOSSIBLE TO PURCHASE, BEEN
REQUIRED TO BUY HOG HOOFS AND HOG SKINS WITH EACH PURCHASE OF A POUND
OF BACON, I THINK THE SELLERS WOULD HAVE VIOLATED THE LAW.  IF THE
WHOLESALER CAN REQUIRE THE RETAILER TO PURCHASE UNWANTED ITEMS THE
RETAILER CAN FORCE THE ORDINARY CONSUMER TO DO THE SAME THING.  A
RESTAURANT COULD THEN FORCE ITS CUSTOMERS TO PURCHASE USED KITCHEN FATS
ALONG WITH THEIR MEALS.  IT WOULD BE LITTLE CONSOLATION TO A CUSTOMER
FORCED TO DO SO TO LEARN THAT SOAP FACTORIES CAN USE THESE FATS AND
WOULD BE WILLING TO PURCHASE THEM.  HE WOULD PAY THE PRICE, AND EITHER
DUMP THE FAT INTO THE NEAREST ASH CAN OR TELL THE WAITER TO TAKE THE
SMELLY SUBSTANCE AWAY.  THE RESULT WOULD BE INCREASED COST OF MEALS IN
THAT RESTAURANT.  THINLY DISGUISED SUBTERFUGES LIKE THE ONE HERE
ADOPTED SHOULD NOT BE SANCTIONED BY COURTS.  ONCE THEY ARE SANCTIONED,
LAWS ENACTED BY CONGRESS FOR THE PUBLIC WELFARE ARE NO LONGER
RESPECTED. 

WHEN FOOD IS SCARCE AND PEOPLE ARE HUNGRY IT IS A VIOLATION, BOTH OF
THE LETTER AND SPIRIT OF THE PRICE CONTROL LAWS, TO REQUIRE CONSUMERS
OR RETAIL STORES WHERE THEY MAKE THEIR PURCHASES, TO BUY THINGS THAT
THEY NEITHER NEED NOR WANT AS A CONDITION TO OBTAINING ARTICLES WHICH
THEY MUST HAVE.  I DISSENT FROM THE COURT'S DISPOSITION OF THIS CASE. 

MR. JUSTICE REED AND MR. JUSTICE BURTON JOIN IN THIS OPINION. 
..END :










UNITED STATES V. CARBONE, 327 U.S. 633 


NO. 474.  ARGUED FEBRUARY 26, 27, 1946.  - DECIDED MARCH 25, 1946.  - 61
F.SUPP.  882, AFFIRMED. 


1.  THE KICKBACK ACT OF JUNE 13, 1934 PROVIDES THAT "WHOEVER" SHALL
INDUCE ANY PERSON EMPLOYED ON ANY FEDERALLY FINANCED WORK "TO GIVE UP
ANY PART OF THE COMPENSATION TO WHICH HE IS ENTITLED UNDER HIS CONTRACT
OF EMPLOYMENT, BY FORCE, INTIMIDATION, THREAT OF PROCURING DISMISSAL
FROM SUCH EMPLOYMENT, OR BY ANY OTHER MANNER WHATSOEVER," SHALL BE
SUBJECT TO THE PENALTY THEREIN PRESCRIBED.  APPELLEES, UNION OFFICIALS,
WERE INDICTED FOR CONSPIRING TO VIOLATE THE ACT.  THE INDICTMENT
CHARGED INTER ALIA THAT, BY AGREEMENT BETWEEN APPELLEES AND CONTRACTORS
ENGAGED IN CONSTRUCTION OF FEDERAL BUILDINGS, THE CONTRACTORS AGREED TO
EMPLOY AS LABORERS ONLY SUCH PERSONS AS WERE APPROVED BY APPELLEES AND
TO DISCHARGE ANY SUCH EMPLOYEES AT APPELLEES' REQUEST.  APPELLEES
APPROVED FOR EMPLOYMENT, BESIDES UNION MEMBERS, ONLY SUCH PERSONS AS
PAID APPELLEES THE SUM OF $5, WHICH WAS TO BE REGARDED AS AN
INSTALLMENT UPON THE UNION INITIATION FEE.  PAYMENT TO APPELLEES OF $5
PER WEEK THEREAFTER WAS REQUIRED UNTIL THE FULL INITIATION FEE HAD BEEN
PAID, "OR THE PERSON WOULD NOT BE PERMITTED TO CONTINUE WORK UPON THE
SAID CONSTRUCTION."  APPELLEES, CONTRARY TO UNION RULES, DID NOT
ACCOUNT TO THE UNION FOR MONEYS RECEIVED FROM LABORERS WHO QUIT THE
EMPLOYMENT BEFORE PAYING THE INITIATION FEE IN FULL.  HELD THAT THE
INDICTMENT DID NOT CHARGE AN OFFENSE PUNISHABLE UNDER THE KICKBACK
ACT.  P. 637. 

2.  THE KICKBACK ACT MUST BE CONSTRUED IN THE LIGHT OF THE EVILS
WHICH IT WAS DESIGNED TO REMEDY.  P. 637. 

3.  THE KICKBACK ACT WAS NOT INTENDED TO AFFECT LEGITIMATE UNION
ACTIVITY; NOR TO PUNISH UNLAWFUL ACTS, THOUGH COMMITTED BY UNION
OFFICIALS IN VIOLATION OF UNION RULES, WHICH ARE NOT IN THE NATURE OF
KICKBACKS.  P. 639. 

4.  ON APPEAL UNDER THE CRIMINAL APPEALS ACT, THIS COURT IS BOUND BY
THE DISTRICT COURT'S INTERPRETATION OF THE INDICTMENT AS DEALING WITH
ORDINARY UNION INITIATION FEES RATHER THAN WITH KICKBACKS.  P. 641. 

UNITED STATES V. CARBONE ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MASSACHUSETTS. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT DISMISSING AN
INDICTMENT OF THE RESPONDENTS FOR CONSPIRING TO VIOLATE THE KICKBACK
ACT.  AFFIRMED, P. 642. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE COMES TO US UNDER THE CRIMINAL APPEALS ACT  FN1  DIRECTLY
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS.  IT RAISES AN IMPORTANT QUESTION AS TO THE MEANING AND
SCOPE OF SEC. 1 OF THE ACT OF JUNE 13, 1934,  FN2  COMMONLY KNOWN AS
THE KICKBACK ACT, MAKING IT UNLAWFUL TO PREVENT ANYONE EMPLOYED IN
CONSTRUCTION OR REPAIR WORK OF A PUBLIC NATURE OR FINANCED IN WHOLE OR
IN PART BY THE UNITED STATES FROM RECEIVING THE FULL COMPENSATION TO
WHICH HE IS ENTITLED. 

THREE OF THE APPELLEES ARE OFFICERS OF LOCAL 39 OF THE INTERNATIONAL
HOD CARRIERS' BUILDING AND COMMON LABORERS' UNION OF AMERICA; THE
FOURTH APPELLEE IS PRESIDENT OF THE EASTERN MASSACHUSETTS LABORERS
DISTRICT COUNCIL AND IS ALSO EMPLOYED BY LOCAL 39.  THEY WERE INDICTED
FOR CONSPIRING TO VIOLATE SEC. 1 OF THE KICKBACK ACT.  IT WAS CHARGED
THAT DURING THE PERIOD OF THE ALLEGED CONSPIRACY, OCTOBER 1, 1940, TO
MARCH 30, 1941, TWO CONTRACTORS WERE ENGAGED IN THE CONSTRUCTION OF
VARIOUS PUBLIC BUILDINGS FOR THE UNITED STATES AT FORT DEVENS,
MASSACHUSETTS.  THE APPELLEES, BY VIRTUE OF THEIR POSITIONS WITH LOCAL
39, MADE AN AGREEMENT WITH THE CONTRACTORS WHEREBY THE LATTER UNDERTOOK
TO EMPLOY AS LABORERS ONLY SUCH PERSONS AS WERE APPROVED BY APPELLEES
AND TO DISCHARGE ANY SUCH EMPLOYEES AT APPELLEES' REQUEST.  THE
CONTRACTORS ALSO AGREED TO EMPLOY FORTY PERSONS NAMED BY THE APPELLEES,
KNOWN AS STEWARDS, TO PERFORM SUCH DUTIES AS THE APPELLEES MIGHT
DIRECT, AND TO PROVIDE AN OFFICE FOR THE APPELLEES ON THE SITE OF THE
CONSTRUCTION.  ABOUT 7,500 LABORERS WERE EMPLOYED DURING THE COURSE OF
THE CONSTRUCTION. 

PURSUANT TO THIS AGREEMENT, THE APPELLEES APPROVED TO THE CONTRACTORS
FOR EMPLOYMENT AS LABORERS MEMBERS OF LOCAL 39 OR OF OTHER LOCALS OF
THE INTERNATIONAL UNION AND ONLY SUCH OTHER PERSONS AS PAID THE
APPELLEES THE SUM OF $5.00.  THE APPELLEES REPRESENTED TO THE LATTER
PERSONS THAT THIS PAYMENT WOULD BE REGARDED AS AN INSTALLMENT UPON THE
INITIATION FEE OF LOCAL 39 AND THE INTERNATIONAL UNION AND THAT EACH
SUCH EMPLOYEE WOULD BE REQUIRED TO PAY THE APPELLEES $5.00 PER WEEK
UNTIL THE TOTAL INITIATION FEE WAS PAID "OR THE PERSON WOULD NOT BE
PERMITTED TO CONTINUE WORK UPON THE SAID CONSTRUCTION."  RECEIPTS WERE
GIVEN FOR EACH WEEKLY PAYMENT.  THE INITIATION FEE WAS ORIGINALLY
$50.00, BUT IT WAS LATER REDUCED TO $40.00 AND THEN TO $20.00. 

IT WAS FURTHER CHARGED THAT THE APPELLEES DIRECTED THE STEWARDS EACH
WEEK TO GO AMONG THE LABORERS AND DEMAND OF EACH NONMEMBER OF THE UNION
EITHER THAT HE DISPLAY A RECEIPT SHOWING THAT HE HAD PAID THE $5.00 FOR
THE CURRENT WEEK OR THAT HE IMMEDIATELY PAY THAT SUM TO THE STEWARDS OR
TO THE APPELLEES "UNDER THREAT OF PROCURING HIS DISMISSAL FROM HIS
EMPLOYMENT" IF HE DID NOT DO SO.  THE APPELLEES ALLEGEDLY WERE ABLE TO
CARRY OUT THIS THREAT BY REASON OF THEIR AGREEMENT WITH THE
CONTRACTORS, THE APPELLEES "WELL KNOWING, AND INTENDING, THAT THE
LABORERS WOULD PAY THE SAID FIVE DOLLARS OUT OF THE COMPENSATION TO
WHICH THEY WERE ENTITLED UNDER THEIR CONTRACTS OF EMPLOYMENT WITH THE
SAID CONTRACTORS." 

THE INDICTMENT ALSO STATED THAT THE APPELLEES KEPT NO RECORDS OF
THOSE WHO MADE PAYMENTS TO THEM.  BUT IF A LABORER SHOULD PRESENT
RECEIPTS SHOWING PAYMENT OF THE INITIATION FEE IN FULL, HIS NAME WAS
RECORDED AND SENT TO THE HEADQUARTERS OF THE INTERNATIONAL UNION WITH
THE SUM OF $5.35, REPRESENTING THE SHARE OF THE FEE TO WHICH THE
INTERNATIONAL WAS ENTITLED UNDER ITS RULES.  AND THE APPELLEES "MADE NO
REPORT TO THE LOCAL 39, OR TO ANYONE, OF THE AMOUNT THEY HAD RECEIVED
FROM LABORERS PAYING LESS THAN THE FULL INITIATION FEE AS AFORESAID, OR
THE TOTAL SUMS THEY HAD COLLECTED IN THIS WAY, NOR DID THEY CAUSE ANY
OF THE SUMS COLLECTED IN THIS WAY AND RECEIVED BY THEM TO BE RECORDED
IN THE FINANCIAL SECRETARY'S BOOK AS THE RULES OF THE SAID
INTERNATIONAL UNION REQUIRE:  THE DEFENDANTS (APPELLEES) WELL KNOWING
THAT THE MAJORITY OF THOSE WHO PAID THE INITIAL FIVE DOLLARS WOULD NOT
AND DID NOT COMPLETE PAYMENT OF THE FULL INITIATION FEE." 

THE INDICTMENT CONCLUDED BY CHARGING THAT THE APPELLEES ACTED IN
CONCERT IN THESE MATTERS, THAT THEY INDUCED THE LABORERS TO GIVE UP
PART OF THE COMPENSATION TO WHICH THEY WERE ENTITLED UNDER THEIR
CONTRACTS, THAT THEY REPRESENTED THAT THEY WERE ACTING FOR LOCAL 39 AND
THE INTERNATIONAL, AND THAT THEY CONCEALED FROM THESE ORGANIZATIONS THE
SUMS THEY THUS COLLECTED FROM LABORERS WHO DID NOT PAY THE INITIATION
FEE IN FULL. 

THE APPELLEES MOVED TO DISMISS THE INDICTMENT, ALLEGING AS ONE GROUND
THAT IT DID NOT STATE AN OFFENSE COGNIZABLE IN LAW.  RELYING UPON THIS
COURT'S DECISION IN UNITED STATES V. LAUDANI, 320 U.S. 543, THE
DISTRICT COURT GRANTED THE MOTIONS.  61 F.SUPP.  882.  IT PLAINLY WAS
OF THE VIEW THAT THE FACTS AS ALLEGED IN THE INDICTMENT FELL OUTSIDE
THE SCOPE OF THE KICKBACK ACT.  IT STATED THAT IT DID NOT BELIEVE THAT
"EITHER THE HISTORY OR THE PURPOSE OF THE KICKBACK LEGISLATION WARRANTS
AN EXTENSION OF ITS SCOPE TO INCLUDE THESE DEFENDANTS....  THE CLOSED
SHOP IS WITHIN THE LEGITIMATE OBJECTIVES OF TRADE UNIONISM. 
IMPLEMENTATION OF THIS OBJECTIVE BY THE MEANS USED BY THESE DEFENDANTS
SHOULD NOT EXPOSE THEM TO THE RISK OF CRIMINAL PROSECUTION."  FROM THIS
JUDGMENT THE UNITED STATES APPEALS. 

WE AGREE WITH THE DISTRICT COURT.  SECTION 1 OF THE KICKBACK ACT
PUNISHES "WHOEVER" INDUCES ANOTHER PERSON EMPLOYED ON A FEDERALLY
FINANCED PROJECT "TO GIVE UP ANY PART OF THE COMPENSATION TO WHICH HE
IS ENTITLED UNDER HIS CONTRACT OF EMPLOYMENT, BY FORCE, INTIMIDATION,
THREAT OF PROCURING DISMISSAL FROM SUCH EMPLOYMENT, OR BY ANY OTHER
MANNER WHATSOEVER  ..."  THE UNITED STATES CONTENDS THAT THIS PROVISION
APPLIES TO THE INSTANT SITUATION INASMUCH AS THE APPELLEES INDUCED
CERTAIN WORKERS ON A FEDERAL PROJECT TO GIVE UP PART OF THE
COMPENSATION TO WHICH THEY WERE ENTITLED BY THREATENING TO PROCURE
DISMISSAL FROM THEIR EMPLOYMENT.  EMPHASIS IS PLACED UPON THE
ALLEGATION IN THE INDICTMENT THAT THE APPELLEES HAD POWER TO ENFORCE
THIS THREAT BY REASON OF THE CLOSED-SHOP AGREEMENT WITH THE CONTRACTORS
AND UPON THE FURTHER ALLEGATION THAT THE APPELLEES NEGLECTED TO REPORT
OR TO TURN OVER TO LOCAL 39 OF THE INTERNATIONAL UNION ALL OF THE MONEY
COLLECTED, AS REQUIRED BY THE RULES OF THOSE ORGANIZATIONS. 

BUT AS IS APPARENT FROM OUR DISCUSSION IN THE LAUDANI CASE, NOT EVERY
PERSON OR ACT FALLING WITHIN THE LITERAL SWEEP OF THE LANGUAGE OF THE
KICKBACK ACT NECESSARILY COMES WITHIN ITS INTENT AND PURPOSE.  THAT
LANGUAGE MUST BE READ AND APPLIED IN LIGHT OF THE EVILS WHICH GAVE RISE
TO THE STATUTE AND THE AIMS WHICH THE PROPONENTS SOUGHT TO ACHIEVE. 
WHEN THAT IS DONE THE INAPPLICABILITY OF THE ACT TO THE FACTS SET FORTH
IN THE INDICTMENT BECOMES CLEAR. 

THE STATUTE GREW OUT OF AN INVESTIGATION OF SO-CALLED RACKETS BY A
SUBCOMMITTEE OF THE SENATE COMMITTEE ON COMMERCE PURSUANT TO S. RES.
74, 73D CONG., 2D SESS.  THIS INVESTIGATION "REVEALED THAT LARGE SUMS
OF MONEY HAVE BEEN EXTRACTED FROM THE POCKETS OF AMERICAN LABOR, TO
ENRICH CONTRACTORS, SUBCONTRACTORS, AND THEIR OFFICIALS."  S. REP. NO.
803, 73D CONG., 2D SESS.  IT WAS FOUND THAT LABORERS, ESPECIALLY THOSE
PURSUING THE BUILDING TRADES, OFTEN WERE PAID THE PREVAILING RATE OF
WAGES BUT WERE COMPELLED BY THEIR EMPLOYERS TO GIVE BACK OR KICK BACK A
PERCENTAGE OF THE PAY WHICH THEY HAD LAWFULLY EARNED AND RECEIVED. 
DISCHARGE WAS THREATENED UNLESS THEY COMPLIED WITH THE DEMANDS FOR
KICKBACKS.  THE EMPLOYERS WERE THEREBY ENABLED TO EVADE THE SCALE OF
WAGES IMPOSED BY THE GOVERNMENT ON ITS CONSTRUCTION PROJECTS, TO THE
DETRIMENT OF THE WORKERS.  SUCH WAS THE EVIL AT WHICH THE ACT WAS
DIRECTED.  AS STATED BY THE HOUSE COMMITTEE IN REPORTING THE BILL THAT
BECAME THE LAW, "THIS BILL IS AIMED AT THE SUPPRESSION OF THE SO-CALLED
'KICK-BACK RACKET' BY WHICH A CONTRACTOR ON A GOVERNMENT PROJECT PAYS
HIS LABORERS WAGES AT THE RATE THE GOVERNMENT REQUIRES HIM TO PAY THEM,
BUT THEREAFTER FORCES THEM TO GIVE BACK TO HIM A PART OF THE WAGES THEY
HAVE RECEIVED."  H. REP. NO. 1750, 73D CONG., 2D SESS.  FN3 

IT IS THUS APPARENT THAT THE PURPOSE OF THE ACT IS TO INSURE THAT
WORKERS ON FEDERAL PROJECTS SHALL RECEIVE THE FULL WAGES TO WHICH THEY
ARE ENTITLED FROM THEIR EMPLOYERS, MANY OF WHOM HAD BEEN FOUND TO BE
DEPRIVING THE WORKERS OF THEIR RIGHTS IN THIS RESPECT.  AND THE
SANCTIONS OF THE ACT ARE DIRECTED TOWARD THAT PROBLEM.  THERE IS
NOTHING IN THE LEGISLATIVE HISTORY TO SUPPORT THE THESIS THAT THE
STATUTE WAS INTENDED TO AFFECT LEGITIMATE UNION ACTIVITIES.  NOR WAS IT
INTENDED TO BE USED TO PUNISH UNLAWFUL ACTS, INCLUDING THOSE COMMITTED
BY UNION OFFICIALS IN VIOLATION OF UNION RULES, THAT ARE NOT IN THE
NATURE OF KICKBACKS.  FN4  WE NEED NOT HERE ATTEMPT TO DELINEATE THE
DEGREE, IF ANY, TO WHICH THE ACT APPLIES TO THE ACTIVITIES OF TRADE
UNIONS AND THEIR OFFICERS.  NOR NEED WE QUESTION THE FACT THAT SUCH
OFFICERS ON OCCASION MAY MAKE UNWARRANTED USE OF THEIR POWERS, THEREBY
REFLECTING ADVERSELY UPON THE REPUTATION OF UNIONISM.  IT IS ENOUGH TO
NOTE THAT THIS ACT WAS DESIGNED SOLELY TO PREVENT WORKERS FROM
WRONGFULLY BEING DEPRIVED OF THEIR FULL WAGES AND THAT EVILS RELATING
TO THE INTERNAL MANAGEMENT OF UNIONS WERE MATTERS WITH WHICH CONGRESS
DID NOT CONCERN ITSELF IN ENACTING THE KICKBACK ACT.  ACCORDINGLY THE
BROAD LANGUAGE OF THE STATUTE MUST BE INTERPRETED AND APPLIED WITH THAT
BACKGROUND IN MIND. 

FROM A SUPERFICIAL STANDPOINT, THE FACTS IN THE INDICTMENT WOULD
INDICATE THAT THE APPELLEES DID INDUCE THE LABORERS TO GIVE UP PART OF
THEIR LAWFUL WAGES BY THREATENING TO PROCURE THEIR DISMISSAL.  BUT THE
FACTS AS CHARGED MUST BE CONSIDERED IN LIGHT OF THE CLOSED-SHOP
AGREEMENT BETWEEN THE APPELLEES AND THE CONTRACTORS.  THAT AGREEMENT,
SO FAR AS APPEARS, WAS A LAWFUL ONE, GIVING THE APPELLEES THE POWER AS
UNION REPRESENTATIVES TO INSIST THAT ALL LABORERS BE OR BECOME MEMBERS
OF LOCAL 39 AND THE INTERNATIONAL UNION.  THE INITIATION FEE WHICH WAS
ASSESSED IS A NORMAL AND USUAL ASSESSMENT BY A UNION ON A PERSON
SEEKING A UNION JOB OR MEMBERSHIP IN THE UNION.  THERE IS NO CLAIM IN
THIS INSTANCE THAT THE FEE WAS UNAUTHORIZED, EXCESSIVE OR OTHERWISE
IMPROPER; IN FACT, IT IS ADMITTED THAT WHEN THE FULL AMOUNT OF THE
INITIATION FEE WAS PAID THE LABORER BECAME ENROLLED AS A MEMBER OF BOTH
LOCAL 39 AND THE INTERNATIONAL UNION.  THE INDICTMENT IS DIRECTED ONLY
TO THOSE PAYMENTS MADE BY LABORERS WHO DISCONTINUED WORKING BEFORE THEY
PAID THE LAST INSTALLMENT.  AS TO SUCH INSTALLMENTS, THERE IS NO
ALLEGATION THAT THE FAILURE TO RETURN THEM WAS UNAUTHORIZED BY UNION
RULES OR WAS IN ANY OTHER WAY UNLAWFUL.  MOREOVER, THE FACT THAT THE
ASSESSMENTS WERE ACCOMPANIED BY A THREAT AND A POWER TO PROCURE
DISMISSAL FOR FAILURE TO PAY IS BUT AN ORDINARY INCIDENT OF THE
APPARENTLY LEGAL CLOSED-SHOP AGREEMENT.  THE SUM OF THESE FACTS,
THEREFORE, FAILS TO REVEAL ANY OF THE EVILS WHICH GAVE RISE TO THE
KICKBACK ACT.  ALL THAT APPEARS ARE THE NORMAL METHODS USED TO
IMPLEMENT THE LEGITIMATE OBJECTIVE OF A CLOSED SHOP.  THE DISTRICT
COURT SO VIEWED THE FACTS.  IT INTERPRETED THE INDICTMENT AS DEALING
ONLY WITH ORDINARY UNION INITIATION FEES RATHER THAN WITH KICKBACKS, AS
THAT WORD IS USED IN THE CONTEXT OF THIS STATUTE.  WE ARE BOUND BY THAT
INTERPRETATION ON THIS APPEAL.  UNITED STATES V. BORDEN CO., 308 U.S.
188. 

THE CRUCIAL FACT RELIED UPON BY THE UNITED STATES, HOWEVER, IS THE
ALLEGED FAILURE OF THE APPELLEES TO REPORT OR TO ACCOUNT TO THE UNIONS
AS TO THOSE PAYMENTS MADE BY LABORERS WHO QUIT BEFORE MAKING THE LAST
INSTALLMENT.  BUT IF THAT FACT BE TRUE IT CANNOT OPERATE RETROACTIVELY
TO MAKE THE ASSESSMENTS ILLEGAL OR TO GIVE THEM THE CHARACTER OF
KICKBACKS.  IT MUST BE ASSUMED FROM THE INDICTMENT AS CONSTRUED BELOW
THAT THE ASSESSMENTS WERE LAWFUL WHEN MADE AND THAT THE APPELLEES HAD
THE RIGHT TO MAKE THEM ON BEHALF OF THE UNIONS.  IF THE APPELLEES
THEREAFTER CONVERTED THE MONEY TO THEIR OWN USE IN VIOLATION OF UNION
RULES, THE EVIL FALLS OUTSIDE THE SCOPE OF THE KICKBACK ACT. 
EMBEZZLEMENT AND FAILURE TO OBEY UNION RULES ARE MATTERS VASTLY
DIFFERENT FROM AN UNLAWFUL DEMAND UPON AN EMPLOYEE TO RETURN PART OF
THE WAGES HE HAS EARNED.  CONGRESS HAS GIVEN NO INDICATION IN THIS ACT
THAT IT DESIRED TO DEAL WITH SUCH MATTERS. 

THE INTERPRETATIVE PROCESS WOULD BE ABUSED AND THE LEGISLATIVE WILL
SUBVERTED WERE WE TO DEAL WITH THE BROAD LANGUAGE OF THIS STATUTE IN
DISREGARD OF THE NARROW PROBLEM OF KICKBACKS WHICH CONGRESS SOUGHT TO
REMEDY.  SEE HOLY TRINITY CHURCH V. UNITED STATES, 143 U.S. 457;
CHATWIN V. UNITED STATES, 326 U.S. 455.  THE JUDGMENT OF THE DISTRICT
COURT MUST THEREFORE BE AFFIRMED. 

FN1  ACT OF MARCH 2, 1907, 34 STAT. 1246, AS AMENDED BY THE ACT OF
MAY 9, 1942, 56 STAT. 271; 18 U.S.C. SEC. 682.    FN2  SECTION 1 OF THE
ACT PROVIDES:  "WHOEVER SHALL INDUCE ANY PERSON EMPLOYED IN THE
CONSTRUCTION, PROSECUTION, OR COMPLETION OF ANY PUBLIC BUILDING, PUBLIC
WORK, OR BUILDING OR WORK FINANCED IN WHOLE OR IN PART BY LOANS OR
GRANTS FROM THE UNITED STATES, OR IN THE REPAIR THEREOF TO GIVE UP ANY
PART OF THE COMPENSATION TO WHICH HE IS ENTITLED UNDER HIS CONTRACT OF
EMPLOYMENT, BY FORCE, INTIMIDATION, THREAT OF PROCURING DISMISSAL FROM
SUCH EMPLOYMENT, OR BY ANY OTHER MANNER WHATSOEVER, SHALL BE FINED NOT
MORE THAN $5,000, OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH."  48
STAT. 948; 40 U.S.C. SEC. 276B. 

FN3  SENATOR COPELAND, IN CHARGE OF THE BILL IN THE SENATE, EXPLAINED
ITS PURPOSES AS FOLLOWS: "I SHOULD BE UNWILLING TO HAVE THE BILL PASSED
WITHOUT THE SENATE UNDERSTANDING ITS PURPOSE.  MUCH HAS BEEN SAID ON
THE FLOOR RECENTLY ABOUT WHAT IS KNOWN AS THE 'KICK-BACK' WHERE
EMPLOYERS OR SUB-EMPLOYERS HAVE INDECENTLY AND IMMORALLY TAKEN FROM
EMPLOYEES A PART OF THE WAGE WHICH IT WAS SUPPOSED THEY WERE BEING
PAID.  THE TESTIMONY BEFORE OUR COMMITTEE INVESTIGATING CRIME IS SO
STARTLING AS TO INDICATE THAT AS MUCH AS 25 PERCENT OF THE MONEY
SUPPOSED TO BE PAID OUT OF FEDERAL FUNDS FOR EMPLOYMENT IS ACTUALLY
REPAID TO EMPLOYERS IN THIS IMPROPER MANNER.  THE PURPOSE OF THE BILL
IS TO ATTEMPT TO PUT SOME CHECK UPON THAT PRACTICE."  78 CONG. REC.
7401.  SENATOR COPELAND ALSO QUOTED FROM A LETTER FROM MR. WILLIAM
GREEN, PRESIDENT OF THE AMERICAN FEDERATION OF LABOR, STATING, "IT HAS
BEEN A COMMON PRACTICE FOR CONTRACTORS CONSTRUCTING FEDERAL BUILDINGS
TO PAY THE EMPLOYEES THE PREVAILING RATE AS DETERMINED BY THE SECRETARY
OF LABOR, AND THEN HAVE THEM RETURN A CERTAIN AMOUNT TO THE
CONTRACTOR.  THAT IS A MOST VICIOUS PRACTICE."  ID. 

REPRESENTATIVE SUMNERS, THE CHAIRMAN OF THE HOUSE COMMITTEE IN CHARGE
OF THE BILL, REFERRED TO THE BILL AS FOLLOWS:  "MAY I SUGGEST TO
GENTLEMEN ON BOTH SIDES OF THE HOUSE THAT WE ARE GOING TO ATTEMPT TO
CALL UP ON THE FIRST OPPORTUNITY S. 3041, WHICH IS KNOWN AS THE
'KICKBACK' BILL, PREVENTING CONTRACTORS FROM COMPELLING WORKMEN TO
RETURN A PART OF THEIR SALARIES."  78 CONG. REC. 10521. 

FN4  THE UNITED STATES POINTS TO CERTAIN ISOLATED REFERENCES IN THE
LEGISLATIVE HEARINGS CONCERNING DISHONEST UNION PRACTICES.  HEARINGS,
SUBCOMMITTEE OF SENATE COMMITTEE ON COMMERCE, S. RES. 74, 73D CONG., 2D
SESS., VOL. 1, PP. 35, 82, 808, 814, 826.  BUT THESE RELATE TO GENERAL
"RACKETEERING" IN LABOR UNIONS OR TO CONNIVANCE BETWEEN UNION OFFICIALS
AND CONTRACTORS ON THE MATTER OF KICKBACKS, NEITHER OF WHICH IS
INVOLVED IN THIS CASE.  THUS ADOLPH DZIK, ATTORNEY FOR THE
ANTIRACKETEERING COMMITTEE OF THE AMERICAN FEDERATION OF LABOR BUILDING
TRADE UNIONS IN NEW YORK, TESTIFIED AS FOLLOWS (ID., PP. 808, 814): 

MR. DARU (COUNSEL FOR SENATE SUBCOMMITTEE).  DO YOU THINK IT IS
USUALLY A DISHONEST CONTRACTOR OR AN EMPLOYEE, SUPERINTENDENT, OR
OTHERWISE, WHO IS SANDWICHING IN BETWEEN THERE AND GETTING THE
"KICKBACK"? 

MR. DZIK.  I THINK IT IS THE CONTRACTOR AND SOME OF THE OFFICIALS OF
THE UNIONS. 

THE CHAIRMAN.  IS IT YOUR OPINION THAT THERE IS CONNIVANCE BETWEEN
THE CONTRACTOR OR HIS REPRESENTATIVE AND CERTAIN OFFICIALS? 

MR. DZIK.  I THINK SO. 

     .         .         .         .   . 

THE CHAIRMAN.  I TAKE IT FROM WHAT YOU SAY THAT YOU ARE PLACING
RESPONSIBILITY LARGELY UPON THE CONTRACTORS, OR DO YOU ALSO INCLUDE IN
YOUR CRITICISM, COLLUSION BETWEEN THE CONTRACTORS AND THE OFFICERS OF
VARIOUS UNIONS? 

MR. DZIK.  I WILL SAY THAT PRIMARILY THE CONTRACTORS THEMSELVES ARE
RESPONSIBLE, AND THAT THEY CORRUPT THE OFFICIALS OF THE UNIONS AND IN
THAT MANNER ARE ABLE TO DO IT WITHOUT BEING EXPOSED.  I WILL TELL YOU
WHY I SAY THAT, SENATOR.  I SAY THAT IF THE OFFICIALS AND LABOR UNIONS
WERE REALLY INTERESTED IN THIS RACKET, THEY WOULD IMMEDIATELY PASS A
RESOLUTION SUSPENDING THE OPERATION OF THE RULE OF THE UNION PUNISHING
THE LABORERS THAT EXPOSED IT. 

SEE 46 COL. L. REV. 326. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER DISSENTING, WITH WHOM MR. CHIEF JUSTICE STONE
AND MR. JUSTICE BURTON CONCUR. 

UNTIL 1907 NO REVIEW COULD BE HAD FROM A JUDGMENT OF A DISTRICT - OR
THE PREDECESSOR, CIRCUIT - COURT SETTING ASIDE AN INDICTMENT.  BY THE
CRIMINAL APPEALS ACT OF THAT YEAR, 34 STAT. 1246, 18 U.S.C. SEC. 682,
THIS COURT WAS GIVEN JURISDICTION TO REVIEW SUCH A JUDGMENT, BUT ONLY
IF THE DECISION OF THE DISTRICT COURT WAS BASED EXCLUSIVELY UPON THE
INVALIDITY OR CONSTRUCTION OF THE STATUTE WHICH GAVE RISE TO THE
INDICTMENT.  IF THE DISTRICT COURT CONSTRUED AN INDICTMENT AS WELL AS A
STATUTE, THIS COURT COULD NOT ENTERTAIN THE APPEAL.  UNITED STATES V.
HASTINGS, 296 U.S. 188.  ACCORDINGLY, WHEN THE DISMISSAL OF AN
INDICTMENT INVOLVED AN ERRONEOUS RULING IN WHOLE OR IN PART UPON THE
SUFFICIENCY OF THE INDICTMENT AS A MATTER OF PLEADING, THE UNITED
STATES WAS WITHOUT REMEDY.  THE UPSHOT WAS THAT JUSTICE MIGHT BE
THWARTED THROUGH A MISCONCEPTION BY A DISTRICT JUDGE OF THE
REQUIREMENTS OF CRIMINAL PLEADING BECAUSE TIME MIGHT BAR A NEW
INDICTMENT. 

IT WAS THE PURPOSE OF THE ACT OF MAY 9, 1942, 56 STAT. 271, 18
U.S.C., SUPP. IV, SEC. 682, TO MEET THIS SITUATION.  THIS ACT
AUTHORIZED THE GOVERNMENT TO APPEAL TO A CIRCUIT COURT OF APPEALS FROM
THE DECISION OF A DISTRICT COURT IN THOSE CASES WHERE DIRECT APPEALS TO
THIS COURT DO NOT LIE.  IT ALSO REQUIRED THIS COURT TO REMAND TO A
CIRCUIT COURT OF APPEALS A CASE WRONGLY BROUGHT HERE.  ACCORDINGLY,
WHEN THE TERMS OF THE DISMISSAL OF AN INDICTMENT BY A DISTRICT COURT
RAISE DOUBTS AS TO THE GROUND ON WHICH THE DISMISSAL WAS MADE, OR IS A
BLEND OF A FINDING OF BAD PLEADING AND OF A CONSTRUCTION OF THE STATUTE
ON WHICH THE INDICTMENT WAS BASED, THIS COURT SINCE THE 1942 ACT, IS
UNDER DUTY NOT TO AFFIRM THE DISTRICT COURT BUT TO REMAND THE CAUSE TO
THE CIRCUIT COURT OF APPEALS FOR THAT COURT'S DISPOSAL OF BOTH ISSUES -
INTERPRETATION OF THE INDICTMENT AND CONSTRUCTION OF THE STATUTE. 

THE COURT APPLIED THIS PROCEDURE IN UNITED STATES V. SWIFT & CO., 318
U.S. 442, ALTHOUGH, OR PERHAPS BECAUSE, THERE WAS A DIVISION HERE AS TO
THE MEANING OF THE DISTRICT COURT'S ACTION.  THIS COURSE, IN MY
JUDGMENT, SHOULD NOW BE FOLLOWED.  THE SCOPE OF THE OPINION BELOW IS
CERTAINLY NOT UNEQUIVOCAL.  DID THE DISTRICT COURT MEAN THAT THE
INDICTMENT CHARGED THAT THE DEFENDANTS ACTED EXCLUSIVELY AS AUTHORIZED
AGENTS OF THE UNION IN COLLECTING FEES, BUT CONVERTED THOSE FEES TO
THEIR OWN PURPOSES?  THAT MAY WELL BE EMBEZZLEMENT UNDER THE
MASSACHUSETTS LAW; BUT NO ONE WOULD CONTEND THAT IT COMES WITHIN THE
TERMS OF THE "KICK-BACK" STATUTE.  OR, DID THE DISTRICT COURT READ THE
INDICTMENT TO MEAN THAT THAT WHICH THE DEFENDANTS DID WAS OUTSIDE THE
SCOPE OF THEIR AUTHORITY AS UNION OFFICIALS AND WAS NOT DONE ON BEHALF
OF THE UNION, AND HOLD THAT THE "KICK-BACK" STATUTE DOES NOT APPLY TO
PERSONS BECAUSE THEY ARE OFFICERS OF A UNION?  OR, DID THE DISTRICT
COURT READ THE INDICTMENT TO MEAN THAT THE UNION OFFICIALS ACTED ON
THEIR OWN AND NOT FOR UNION PURPOSES, BUT HOLD THAT SUCH CONDUCT IS NOT
COVERED BY THE "KICK-BACK" STATUTE BECAUSE IT APPLIES EXCLUSIVELY TO
PERSONS WHO WORK FOR THE EMPLOYER AND WHO LINE THEIR POCKETS BY VIRTUE
OF THEIR POWER TO ASSURE OR WITHHOLD EMPLOYMENT?  INSTEAD OF STARTING
WITH AN UNEQUIVOCAL CONSTRUCTION OF THE INDICTMENT BY THE DISTRICT
COURT, THIS COURT IS ITSELF IN EFFECT CONSTRUING THE INDICTMENT WHEN
CONGRESS HAS WITHHELD FROM THIS COURT THE RIGHT TO CONSTRUE
INDICTMENTS. 

IN VIEW OF SUCH DOUBTS CONCERNING THE REAL MEANING OF WHAT THE
DISTRICT COURT DID, FAIR ADMINISTRATION OF THE CRIMINAL LAW WOULD SEEM
TO PRECLUDE AFFIRMANCE OF THE JUDGMENT BELOW ON THE ASSUMPTION THAT THE
DISTRICT COURT READ THE INDICTMENT SO AS TO BRING INTO APPLICATION A
CONSTRUCTION OF THE "KICK-BACK" STATUTE FOR WHICH THE GOVERNMENT DOES
NOT CONTEND.  I WOULD DISMISS THE APPEAL AND REMAND THE DISTRICT
COURT'S JUDGMENT TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT
FOR THAT COURT TO REVIEW THE JUDGMENT IN VIEW OF THE POWER OF THE
CIRCUIT COURT OF APPEALS, NOT POSSESSED BY US, TO CONSTRUE THE
INDICTMENT AS A PRELIMINARY TO CONSTRUING THE STATUTE. 

BUT UNDER THE COMPULSION OF THE COURT'S DECISION THE CASE IS BEFORE
US ON THE MERITS.  SEE HELVERING V. DAVIS, 301 U.S. 619, 640.  THE
STATUTE SEEMS TO BE CLEAR:  "WHOEVER SHALL INDUCE ANY PERSON EMPLOYED
IN THE CONSTRUCTION,  ...  OF ANY  ...  WORK FINANCED IN WHOLE OR IN
PART BY LOANS OR GRANTS FROM THE UNITED STATES,  ...  TO GIVE UP ANY
PART OF THE COMPENSATION TO WHICH HE IS ENTITLED UNDER HIS CONTRACT OF
EMPLOYMENT, BY FORCE, INTIMIDATION, THREAT OF PROCURING DISMISSAL FROM
SUCH EMPLOYMENT, OR BY ANY OTHER MANNER WHATSOEVER, SHALL BE FINED  ...
OR IMPRISONED  ... OR BOTH."  48 STAT. 948, 40 U.S.C. SEC. 276B.  NO
LEGISLATIVE HISTORY IS INVOKED TO UNDO THE SCOPE OF THIS LANGUAGE AND
TO IMMUNIZE WHAT CONGRESS HAS PLAINLY CONDEMNED.  WHAT CONGRESS HAS
ENACTED SHOULD BE ENFORCED.  THE STATUTORY PHRASE IS "BY ANY OTHER
MANNER WHATSOEVER."  THE INDICTMENT DOES NOT DESCRIBE A CHECK-OFF OR
COLLECTION OF UNION DUES OR INITIATION FEES IN A LABOR UNION.  THAT, AS
THE GOVERNMENT AGREES, IS NOT PROHIBITED.  THE STATUTE SEEKS TO PROTECT
FORAYS AGAINST WAGES DERIVED FROM FEDERAL FUNDS AND DOES NOT TOUCH
DIMINUTION OF SUCH WAGES IN CONNECTION WITH UNION MEMBERSHIP.  THE
STATUTE IS FOR THE PROTECTION OF THE LABORING MAN AND THE TAXPAYER.  IT
SHOULD BE SO INTERPRETED AND ENFORCED.  IT SHOULD NOT BE INTERPRETED SO
AS TO PROTECT THOSE DESCRIBED IN THE INDICTMENTS AS COLLECTING FUNDS BY
COERCION, THROUGH THEIR CONTROL OVER JOBS, FOR THEIR OWN PERSONAL
ADVANTAGE AT THE EXPENSE OF THE WAGE EARNER, THE LABOR UNION, AND THE
TAXPAYER. 
..END :






















LAVENDER V. KURN, 327 U.S. 645 


NO. 550.  ARGUED MARCH 6, 7, 1946.  - DECIDED MARCH 25, 1946.  - 354 MO.
196, 189 S.W.2D 253, REVERSED. 


1.  IN THIS ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
EVIDENCE OF THE DEFENDANTS' NEGLIGENCE (DETAILED IN THE OPINION) WAS
SUFFICIENT TO JUSTIFY SUBMISSION OF THE CASE TO THE JURY; AND THE
JUDGMENT OF THE APPELLATE COURT SETTING ASIDE THE VERDICT FOR THE
PLAINTIFF CAN NOT BE SUSTAINED.  P. 652. 

2.  THERE BEING A REASONABLE BASIS IN THE RECORD FOR AN INFERENCE BY
THE JURY THAT THE INJURY RESULTED FROM THE DEFENDANTS' NEGLIGENCE, IT
IS NOT WITHIN THE PROVINCE OF THE APPELLATE COURT TO WEIGH THE
CONFLICTING EVIDENCE, JUDGE THE CREDIBILITY OF WITNESSES, AND ARRIVE AT
A CONCLUSION OPPOSITE FROM THAT REACHED BY THE JURY.  P. 652. 

3.  IN SUITS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
APPELLATE COURT'S FUNCTION IS EXHAUSTED WHEN THE EVIDENTIARY BASIS FOR
THE JURY'S VERDICT BECOMES APPARENT, IT BEING IMMATERIAL THAT THE COURT
MIGHT DRAW A CONTRARY INFERENCE OR CONSIDER ANOTHER CONCLUSION MORE
REASONABLE.  P. 653. 

4.  ONLY WHEN THERE IS A COMPLETE ABSENCE OF PROBATIVE FACTS TO
SUPPORT THE CONCLUSION REACHED BY THE JURY DOES REVERSIBLE ERROR
APPEAR.  P. 653. 

5.  THE JURY COULD REASONABLY HAVE INFERRED FROM THE EVIDENCE IN THIS
CASE THAT THE PLACE AT WHICH THE EMPLOYEE OF THE CARRIER WAS WORKING,
THOUGH TECHNICALLY A PUBLIC STREET, WAS UNSAFE AND THAT THIS
CIRCUMSTANCE CONTRIBUTED IN PART TO THE EMPLOYEE'S DEATH.  P. 653. 

6.  IN ACTIONS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, RULINGS ON
THE ADMISSIBILITY OF EVIDENCE MUST NORMALLY BE LEFT TO THE SOUND
DISCRETION OF THE TRIAL JUDGE.  P. 654. 

LAVENDER, ADMINISTRATOR, V. KURN ET AL., TRUSTEES, ET AL. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

IN A SUIT BROUGHT IN A STATE COURT UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT BY PETITIONER AGAINST THE RESPONDENTS, A JUDGMENT FOR THE
PETITIONER WAS REVERSED BY THE SUPREME COURT OF THE STATE.  THIS COURT
GRANTED CERTIORARI.  326 U.S. 713.  REVERSED, P. 654. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL EMPLOYERS' LIABILITY ACT PERMITS RECOVERY FOR PERSONAL
INJURIES TO AN EMPLOYEE OF A RAILROAD ENGAGED IN INTERSTATE COMMERCE IF
SUCH INJURIES RESULT "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."  45 U.S.C. SEC. 51. 

PETITIONER, THE ADMINISTRATOR OF THE ESTATE OF L. E. HANEY, BROUGHT
THIS SUIT UNDER THE ACT AGAINST THE RESPONDENT TRUSTEES OF THE ST.
LOUIS-SAN FRANCISCO RAILWAY COMPANY (FRISCO) AND THE RESPONDENT
ILLINOIS CENTRAL RAILROAD COMPANY.  IT WAS CHARGED THAT HANEY, WHILE
EMPLOYED AS A SWITCH-TENDER BY THE RESPONDENTS IN THE SWITCHYARD OF THE
GRAND CENTRAL STATION IN MEMPHIS, TENNESSEE, WAS KILLED AS A RESULT OF
RESPONDENTS' NEGLIGENCE.  FOLLOWING A TRIAL IN THE CIRCUIT COURT OF THE
CITY OF ST. LOUIS, MISSOURI, THE JURY RETURNED A VERDICT IN FAVOR OF
PETITIONER AND AWARDED DAMAGES IN THE AMOUNT OF $30,000.  JUDGMENT WAS
ENTERED ACCORDINGLY.  ON APPEAL, HOWEVER, THE SUPREME COURT OF MISSOURI
REVERSED THE JUDGMENT, HOLDING THAT THERE WAS NO SUBSTANTIAL EVIDENCE
OF NEGLIGENCE TO SUPPORT THE SUBMISSION OF THE CASE TO THE JURY.  354
MO. 196, 189 S.W.2D 253.  WE GRANTED CERTIORARI TO REVIEW THE PROPRIETY
OF THE SUPREME COURT'S ACTION UNDER THE CIRCUMSTANCES OF THIS CASE. 

IT WAS ADMITTED THAT HANEY WAS EMPLOYED BY THE ILLINOIS CENTRAL, OR A
SUBSIDIARY CORPORATION THEREOF, AS A SWITCH-TENDER IN THE RAILROAD
YARDS NEAR THE GRAND CENTRAL STATION, WHICH WAS OWNED BY THE ILLINOIS
CENTRAL.  HIS DUTIES INCLUDED THE THROWING OF SWITCHES FOR THE ILLINOIS
CENTRAL AS WELL AS FOR THE FRISCO AND OTHER RAILROADS USING THAT
STATION.  FOR THESE SERVICES, THE TRUSTEES OF FRISCO PAID THE ILLINOIS
CENTRAL TWO-TWELFTHS OF HANEY'S WAGES; THEY ALSO PAID TWO-TWELFTHS OF
THE WAGES OF TWO OTHER SWITCH-TENDERS WHO WORKED AT THE SAME SWITCHES. 
IN ADDITION, THE TRUSTEES PAID ILLINOIS CENTRAL $1.87 1/2 FOR EACH
PASSENGER CAR SWITCHED INTO GRAND CENTRAL STATION, WHICH INCLUDED ALL
THE CARS IN THE FRISCO TRAIN BEING SWITCHED INTO THE STATION AT THE
TIME HANEY WAS KILLED. 

THE ILLINOIS CENTRAL TRACKS RUN NORTH AND SOUTH DIRECTLY PAST AND
INTO THE GRAND CENTRAL STATION.  ABOUT 2,700 FEET SOUTH OF THE STATION
THE FRISCO TRACKS CROSS AT RIGHT ANGLES TO THE ILLINOIS CENTRAL
TRACKS.  A WEST-BOUND FRISCO TRAIN WISHING TO USE THE STATION MUST STOP
SOME 250 FEET OR MORE WEST OF THIS CROSSING AND BACK INTO THE STATION
OVER A SWITCH LINE CURVING EAST AND NORTH.  THE EVENTS IN ISSUE CENTER
ABOUT THE SWITCH SEVERAL FEET NORTH OF THE MAIN FRISCO TRACKS AT THE
POINT WHERE THE SWITCH LINE BRANCHES OFF.  THIS SWITCH CONTROLS THE
TRACKS AT THIS POINT. 

IT WAS VERY DARK ON THE EVENING OF DECEMBER 21, 1939.  AT ABOUT 7:30
P.M. A WEST-BOUND INTERSTATE FRISCO PASSENGER TRAIN STOPPED ON THE
FRISCO MAIN LINE, ITS REAR SOME 20 OR 30 FEET WEST OF THE SWITCH. 
HANEY, IN THE PERFORMANCE OF HIS DUTIES, THREW OR OPENED THE SWITCH TO
PERMIT THE TRAIN TO BACK INTO THE STATION.  THE RESPONDENTS CLAIMED
THAT HANEY WAS THEN REQUIRED TO CROSS TO THE SOUTH SIDE OF THE TRACK
BEFORE THE TRAIN PASSED THE SWITCH; AND THE CONDUCTOR OF THE TRAIN
TESTIFIED THAT HE SAW HANEY SO CROSS.  BUT THERE WAS ALSO EVIDENCE THAT
HANEY'S DUTIES REQUIRED HIM TO WAIT AT THE SWITCH NORTH OF THE TRACK
UNTIL THE TRAIN HAD CLEARED, CLOSE THE SWITCH, RETURN TO HIS SHANTY
NEAR THE CROSSING AND CHANGE THE SIGNALS FROM RED TO GREEN TO PERMIT
TRAINS ON THE ILLINOIS CENTRAL TRACKS TO USE THE CROSSING.  THE FRISCO
TRAIN CLEARED THE SWITCH, BACKING AT THE RATE OF 8 OR 10 MILES PER
HOUR.  BUT THE SWITCH REMAINED OPEN AND THE SIGNALS STILL WERE RED. 
UPON INVESTIGATION HANEY WAS FOUND NORTH OF THE TRACK NEAR THE SWITCH
LYING FACE DOWN ON THE GROUND, UNCONSCIOUS.  AN AMBULANCE WAS CALLED,
BUT HE WAS DEAD UPON ARRIVAL AT THE HOSPITAL. 

HANEY HAD BEEN STRUCK IN THE BACK OF THE HEAD, CAUSING A FRACTURED
SKULL FROM WHICH HE DIED.  THERE WERE NO KNOWN EYEWITNESSES TO THE
FATAL BLOW.  ALTHOUGH IT IS NOT CLEAR, THERE IS EVIDENCE THAT HIS BODY
WAS EXTENDED NORTH AND SOUTH, THE HEAD TO THE SOUTH.  APPARENTLY HE HAD
FALLEN FORWARD TO THE SOUTH; HIS FACE WAS BRUISED ON THE LEFT SIDE FROM
HITTING THE GROUND AND THERE WERE MARKS INDICATING THAT HIS TOES HAD
DRAGGED A FEW INCHES SOUTHWARD AS HE FELL.  HIS HEAD WAS ABOUT 5 1/2
FEET NORTH OF THE FRISCO TRACKS.  ESTIMATES RANGED FROM 2 FEET TO 14
FEET AS TO HOW FAR WEST OF THE SWITCH HE LAY. 

THE INJURY TO HANEY'S HEAD WAS EVIDENCED BY A GASH ABOUT TWO INCHES
LONG FROM WHICH BLOOD FLOWED.  THE BACK OF HANEY'S WHITE CAP HAD A
CORRESPONDING BLACK MARK ABOUT AN INCH AND A HALF LONG AND AN INCH
WIDE, RUNNING AT AN ANGLE DOWNWARD TO THE RIGHT OF THE CENTER OF THE
BACK OF THE HEAD.  A SPOT OF BLOOD WAS LATER FOUND AT A POINT 3 OR 4
FEET NORTH OF THE TRACKS.  THE CONCLUSION FOLLOWING AN AUTOPSY WAS THAT
HANEY'S SKULL WAS FRACTURED BY "SOME FAST MOVING SMALL ROUND OBJECT." 
ONE OF THE EXAMINING DOCTORS TESTIFIED THAT SUCH AN OBJECT MIGHT HAVE
BEEN ATTACHED TO A TRAIN BACKING AT THE RATE OF 8 OR 10 MILES PER
HOUR.  BUT HE ALSO ADMITTED THAT THE FRACTURE MIGHT HAVE RESULTED FROM
A BLOW FROM A PIPE OR CLUB OR SOME SIMILAR ROUND OBJECT IN THE HANDS OF
AN INDIVIDUAL. 

PETITIONER'S THEORY IS THAT HANEY WAS STRUCK BY THE CURLED END OR TIP
OF A MAIL HOOK HANGING DOWN LOOSELY ON THE OUTSIDE OF THE MAIL CAR OF
THE BACKING TRAIN.  THIS CURLED END WAS 73 INCHES ABOVE THE TOP OF THE
RAIL, WHICH WAS 7 INCHES HIGH.  THE OVERHANG OF THE MAIL CAR IN
RELATION TO THE RAILS WAS ABOUT 2 TO 2 1/2 FEET.  THE EVIDENCE
INDICATED THAT WHEN THE MAIL CAR SWAYED OR MOVED AROUND A CURVE THE
MAIL HOOK MIGHT PIVOT, ITS CURLED END SWINGING OUT AS MUCH AS 12 TO 14
INCHES.  THE CURLED END COULD THUS BE SWUNG OUT TO A POINT 3 TO 3 1/2
FEET FROM THE RAIL AND ABOUT 73 INCHES ABOVE THE TOP OF THE RAIL.  BOTH
EAST AND WEST OF THE SWITCH, HOWEVER, WAS AN UNEVEN MOUND OF CINDERS
AND DIRT RISING AT ITS HIGHEST POINTS 18 TO 24 INCHES ABOVE THE TOP OF
THE RAILS.  WITNESSES DIFFERED AS TO HOW CLOSE THE MOUND APPROACHED THE
RAILS, THE ESTIMATES VARYING FROM 3 TO 15 FEET.  BUT TAKING THE FIGURES
MOST FAVORABLE TO THE PETITIONER, THE MOUND EXTENDED TO A POINT 6 TO 12
INCHES NORTH OF THE OVERHANGING SIDE OF THE MAIL CAR.  IF THE MAIL HOOK
END SWUNG OUT 12 TO 14 INCHES IT WOULD BE 49 TO 55 INCHES ABOVE THE
HIGHEST PARTS OF THE MOUND.  HANEY WAS 67 1/2 INCHES TALL.  IF HE HAD
BEEN STANDING ON THE MOUND ABOUT A FOOT FROM THE SIDE OF THE MAIL CAR
HE COULD HAVE BEEN HIT BY THE END OF THE MAIL HOOK, THE EXACT POINT OF
CONTACT DEPENDING UPON THE HEIGHT OF THE MOUND AT THE PARTICULAR
POINT.  HIS WOUND WAS ABOUT 4 INCHES BELOW THE TOP OF HIS HEAD, OR 63
1/2 INCHES ABOVE THE POINT WHERE HE STOOD ON THE MOUND - WELL WITHIN
THE POSSIBLE RANGE OF THE MAIL HOOK END. 

RESPONDENTS' THEORY IS THAT HANEY WAS MURDERED.  THEY POINT TO THE
ESTIMATES THAT THE MOUND WAS 10 TO 15 FEET NORTH OF THE RAIL, MAKING IT
IMPOSSIBLE FOR THE MAIL HOOK END TO REACH A POINT OF CONTACT WITH
HANEY'S HEAD.  PHOTOGRAPHS WERE PLACED IN THE RECORD TO SUPPORT THE
CLAIM THAT THE GROUND WAS LEVEL NORTH OF THE RAIL FOR AT LEAST 10
FEET.  MOREOVER, IT APPEARS THAT THE AREA IMMEDIATELY SURROUNDING THE
SWITCH WAS QUITE DARK.  WITNESSES STATED THAT IT WAS SO DARK THAT IT
WAS IMPOSSIBLE TO SEE A 3-INCH PIPE 25 FEET AWAY.  IT ALSO APPEARS THAT
MANY HOBOES AND TRAMPS FREQUENTED THE AREA AT NIGHT IN ORDER TO GET
RIDES ON FREIGHT TRAINS.  HANEY CARRIED A PISTOL TO PROTECT HIMSELF. 
THIS PISTOL WAS FOUND LOOSE UNDER HIS BODY BY THOSE WHO CAME TO HIS
RESCUE.  IT WAS TESTIFIED, HOWEVER, THAT THE PISTOL HAD APPARENTLY
SLIPPED OUT OF HIS POCKET OR SCABBARD AS HE FELL.  HANEY'S CLOTHES WERE
NOT DISARRANGED AND THERE WAS NO EVIDENCE OF A STRUGGLE OR FIGHT.  NO
RODS, PIPES OR WEAPONS OF ANY KIND, EXCEPT HANEY'S OWN PISTOL, WERE
FOUND NEAR THE SCENE.  MOREOVER, HIS GOLD WATCH AND DIAMOND RING WERE
STILL ON HIM AFTER HE WAS STRUCK.  SIX DAYS LATER HIS UNSOILED BILLFOLD
WAS FOUND ON A HIGH BOARD FENCE ABOUT A BLOCK FROM THE PLACE WHERE
HANEY WAS STRUCK AND NEAR THE POINT WHERE HE HAD BEEN PLACED IN AN
AMBULANCE.  IT CONTAINED HIS SOCIAL SECURITY CARD AND OTHER EFFECTS,
BUT NO MONEY.  HIS WIFE TESTIFIED THAT HE "NEVER CARRIED VERY MUCH
MONEY, NOT VERY MUCH MORE THAN $10."  SUCH WERE THE FACTS IN RELATION
TO RESPONDENTS' THEORY OF MURDER. 

FINALLY, ONE OF THE FRISCO FOREMEN TESTIFIED THAT HE ARRIVED AT THE
SCENE SHORTLY AFTER HANEY WAS FOUND INJURED.  HE LATER EXAMINED THE
FIREMAN'S SIDE OF THE TRAIN VERY CAREFULLY AND FOUND NOTHING STICKING
OUT OR IN DISORDER.  IN EXPLAINING WHY HE EXAMINED THIS SIDE OF THE
TRAIN SO CAREFULLY HE STATED THAT WHILE HE WAS AT THE SCENE OF THE
ACCIDENT "SOMEONE SAID THEY THOUGHT THAT TRAIN NO. 106 BACKING INTO
GRAND CENTRAL STATION IS WHAT STRUCK THIS MAN" AND THAT HANEY "WAS
SUPPOSED TO HAVE BEEN STRUCK BY SOMETHING PROTRUDING ON THE SIDE OF
THIS TRAIN."  THE FOREMAN TESTIFIED THAT THESE STATEMENTS WERE MADE BY
AN UNKNOWN ILLINOIS CENTRAL SWITCHMAN STANDING NEAR THE FALLEN BODY OF
HANEY.  THE FOREMAN ADMITTED THAT THE SWITCHMAN "DIDN'T SEE THE
ACCIDENT  ..."  THIS TESTIMONY WAS ADMITTED BY THE TRIAL COURT OVER THE
STRENUOUS OBJECTIONS OF RESPONDENTS' COUNSEL THAT IT WAS MERE HEARSAY
FALLING OUTSIDE THE RES GESTAE RULE. 

THE JURY WAS INSTRUCTED THAT FRISCO'S TRUSTEES WERE LIABLE IF IT WAS
FOUND THAT THEY NEGLIGENTLY PERMITTED A ROD OR OTHER OBJECT TO EXTEND
OUT FROM THE SIDE OF THE TRAIN AS IT BACKED PAST HANEY AND THAT HANEY
WAS KILLED AS THE DIRECT RESULT OF SUCH NEGLIGENCE, IF ANY.  THE JURY
WAS FURTHER TOLD THAT ILLINOIS CENTRAL WAS LIABLE IF IT WAS FOUND THAT
THE COMPANY NEGLIGENTLY MAINTAINED AN UNSAFE AND DANGEROUS PLACE FOR
HANEY TO WORK, IN THAT THE GROUND WAS HIGH AND UNEVEN AND THE LIGHT
INSUFFICIENT AND INADEQUATE, AND THAT HANEY WAS INJURED AND KILLED AS A
DIRECT RESULT OF THE SAID PLACE BEING UNSAFE AND DANGEROUS.  THIS
LATTER INSTRUCTION AS TO ILLINOIS CENTRAL DID NOT REQUIRE THE JURY TO
FIND THAT HANEY WAS KILLED BY SOMETHING PROTRUDING FROM THE TRAIN. 

THE SUPREME COURT, IN UPSETTING THE JURY'S VERDICT AGAINST BOTH THE
FRISCO TRUSTEES AND THE ILLINOIS CENTRAL, ADMITTED THAT "IT COULD BE
INFERRED FROM THE FACTS THAT HANEY COULD HAVE BEEN STRUCK BY THE MAIL
HOOK KNOB IF HE WERE STANDING ON THE SOUTH SIDE OF THE MOUND AND THE
MAIL HOOK EXTENDED OUT AS FAR AS 12 OR 14 INCHES."  BUT IT HELD THAT
"ALL REASONABLE MINDS WOULD AGREE THAT IT WOULD BE MERE SPECULATION AND
CONJECTURE TO SAY THAT HANEY WAS STRUCK BY THE MAIL HOOK" AND THAT
"PLAINTIFF FAILED TO MAKE A SUBMISSIBLE CASE ON THAT QUESTION."  IT
ALSO RULED THAT THERE "WAS NO SUBSTANTIAL EVIDENCE THAT THE UNEVEN
GROUND AND INSUFFICIENT LIGHT WERE CAUSES OR CONTRIBUTING CAUSES OF THE
DEATH OF HANEY."  FINALLY, THE SUPREME COURT HELD THAT THE TESTIMONY OF
THE FOREMAN AS TO THE STATEMENT MADE TO HIM BY THE UNKNOWN SWITCHMAN
WAS INADMISSIBLE UNDER THE RES GESTAE RULE SINCE THE SWITCHMAN SPOKE
FROM WHAT HE HAD HEARD RATHER THAN FROM HIS OWN KNOWLEDGE. 

WE HOLD, HOWEVER, THAT THERE WAS SUFFICIENT EVIDENCE OF NEGLIGENCE ON
THE PART OF BOTH THE FRISCO TRUSTEES AND THE ILLINOIS CENTRAL TO
JUSTIFY THE SUBMISSION OF THE CASE TO THE JURY AND TO REQUIRE APPELLATE
COURTS TO ABIDE BY THE VERDICT RENDERED BY THE JURY. 

THE EVIDENCE WE HAVE ALREADY DETAILED DEMONSTRATES THAT THERE WAS
EVIDENCE FROM WHICH IT MIGHT BE INFERRED THAT THE END OF THE MAIL HOOK
STRUCK HANEY IN THE BACK OF THE HEAD, AN INFERENCE THAT THE SUPREME
COURT ADMITTED COULD BE DRAWN.  THAT INFERENCE IS NOT RENDERED
UNREASONABLE BY THE FACT THAT HANEY APPARENTLY FELL FORWARD TOWARD THE
MAIN FRISCO TRACK SO THAT HIS HEAD WAS 5 1/2 FEET NORTH OF THE RAIL. 
HE MAY WELL HAVE BEEN STRUCK AND THEN WANDERED IN A DAZE TO THE POINT
WHERE HE FELL FORWARD.  THE TESTIMONY AS TO BLOOD MARKS SOME DISTANCE
AWAY FROM HIS HEAD LENDS CREDENCE TO THAT POSSIBILITY, INDICATING THAT
HE DID NOT FALL IMMEDIATELY UPON BEING HIT.  WHEN THAT IS ADDED TO THE
EVIDENCE MOST FAVORABLE TO THE PETITIONER AS TO THE HEIGHT AND SWING
OUT OF THE HOOK, THE HEIGHT AND LOCATION OF THE MOUND AND THE NATURE OF
HANEY'S DUTIES, THE INFERENCE THAT HANEY WAS KILLED BY THE HOOK CANNOT
BE SAID TO BE UNSUPPORTED BY PROBATIVE FACTS OR TO BE SO UNREASONABLE
AS TO WARRANT TAKING THE CASE FROM THE JURY. 

IT IS TRUE THAT THERE IS EVIDENCE TENDING TO SHOW THAT IT WAS
PHYSICALLY AND MATHEMATICALLY IMPOSSIBLE FOR THE HOOK TO STRIKE HANEY. 
AND THERE ARE FACTS FROM WHICH IT MIGHT REASONABLY BE INFERRED THAT
HANEY WAS MURDERED.  BUT SUCH EVIDENCE HAS BECOME IRRELEVANT UPON
APPEAL, THERE BEING A REASONABLE BASIS IN THE RECORD FOR INFERRING THAT
THE HOOK STRUCK HANEY.  THE JURY HAVING MADE THAT INFERENCE, THE
RESPONDENTS WERE NOT FREE TO RELITIGATE THE FACTUAL DISPUTE IN A
REVIEWING COURT.  UNDER THESE CIRCUMSTANCES IT WOULD BE AN UNDUE
INVASION OF THE JURY'S HISTORIC FUNCTION FOR AN APPELLATE COURT TO
WEIGH THE CONFLICTING EVIDENCE, JUDGE THE CREDIBILITY OF WITNESSES AND
ARRIVE AT A CONCLUSION OPPOSITE FROM THE ONE REACHED BY THE JURY.  SEE
TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54, 67-68; BAILEY V.
CENTRAL VERMONT R. CO., 319 U.S. 350, 353-354; TENNANT V. PEORIA &
P.U.R. CO., 321 U.S. 29, 35.  SEE ALSO MOORE, "RECENT TRENDS IN
JUDICIAL INTERPRETATION IN RAILROAD CASES UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT," 29 MARQUETTE L. REV. 73. 

IT IS NO ANSWER TO SAY THAT THE JURY'S VERDICT INVOLVED SPECULATION
AND CONJECTURE.  WHENEVER FACTS ARE IN DISPUTE OR THE EVIDENCE IS SUCH
THAT FAIR-MINDED MEN MAY DRAW DIFFERENT INFERENCES, A MEASURE OF
SPECULATION AND CONJECTURE IS REQUIRED ON THE PART OF THOSE WHOSE DUTY
IT IS TO SETTLE THE DISPUTE BY CHOOSING WHAT SEEMS TO THEM TO BE THE
MOST REASONABLE INFERENCE.  ONLY WHEN THERE IS A COMPLETE ABSENCE OF
PROBATIVE FACTS TO SUPPORT THE CONCLUSION REACHED DOES A REVERSIBLE
ERROR APPEAR.  BUT WHERE, AS HERE, THERE IS AN EVIDENTIARY BASIS FOR
THE JURY'S VERDICT, THE JURY IS FREE TO DISCARD OR DISBELIEVE WHATEVER
FACTS ARE INCONSISTENT WITH ITS CONCLUSION.  AND THE APPELLATE COURT'S
FUNCTION IS EXHAUSTED WHEN THAT EVIDENTIARY BASIS BECOMES APPARENT, IT
BEING IMMATERIAL THAT THE COURT MIGHT DRAW A CONTRARY INFERENCE OR FEEL
THAT ANOTHER CONCLUSION IS MORE REASONABLE. 

WE ARE UNABLE, THEREFORE, TO SANCTION A REVERSAL OF THE JURY'S
VERDICT AGAINST FRISCO'S TRUSTEES.  NOR CAN WE APPROVE ANY DISTURBANCE
IN THE VERDICT AS TO ILLINOIS CENTRAL.  THE EVIDENCE WAS UNCONTRADICTED
THAT IT WAS VERY DARK AT THE PLACE WHERE HANEY WAS WORKING AND THE
SURROUNDING GROUND WAS HIGH AND UNEVEN.  THE EVIDENCE ALSO SHOWED THAT
THIS AREA WAS ENTIRELY WITHIN THE DOMINATION AND CONTROL OF ILLINOIS
CENTRAL DESPITE THE FACT THAT THE AREA WAS TECHNICALLY LOCATED IN A
PUBLIC STREET OF THE CITY OF MEMPHIS.  IT WAS NOT UNREASONABLE TO
CONCLUDE THAT THESE CONDITIONS CONSTITUTED AN UNSAFE AND DANGEROUS
WORKING PLACE AND THAT SUCH CONDITIONS CONTRIBUTED IN PART TO HANEY'S
DEATH, ASSUMING THAT IT RESULTED PRIMARILY FROM THE MAIL HOOK STRIKING
HIS HEAD. 

IN VIEW OF THE FOREGOING DISPOSITION OF THE CASE, IT IS UNNECESSARY
TO DECIDE WHETHER THE ALLEGEDLY HEARSAY TESTIMONY WAS ADMISSIBLE UNDER
THE RES GESTAE RULE.  RULINGS ON THE ADMISSIBILITY OF EVIDENCE MUST
NORMALLY BE LEFT TO THE SOUND DISCRETION OF THE TRIAL JUDGE IN ACTIONS
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  BUT INASMUCH AS THERE IS
ADEQUATE SUPPORT IN THE RECORD FOR THE JURY'S VERDICT APART FROM THE
HEARSAY TESTIMONY, WE NEED NOT DETERMINE WHETHER THAT DISCRETION WAS
ABUSED IN THIS INSTANCE. 

THE JUDGMENT OF THE SUPREME COURT OF MISSOURI IS REVERSED AND THE
CASE IS REMANDED FOR WHATEVER FURTHER PROCEEDINGS MAY BE NECESSARY NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

THE CHIEF JUSTICE AND MR. JUSTICE FRANKFURTER CONCUR IN THE RESULT. 

MR. JUSTICE REED DISSENTS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







MCALLISTER LINE V. UNITED STATES, 327 U.S. 655 


NO. 616.  ARGUED MARCH 5, 1946.  - DECIDED MARCH 25, 1946.  - AFFIRMED. 


THE CONCLUSION OF THE INTERSTATE COMMERCE COMMISSION, UPON AN
APPLICATION FOR A CERTIFICATE AS A COMMON CARRIER BY WATER UNDER THE
"GRANDFATHER" CLAUSE OF SEC. 309(A) OF PART III OF THE INTERSTATE
COMMERCE ACT, THAT THE INTERRUPTION OF BONA FIDE OPERATIONS SINCE
JANUARY 1, 1940, WAS NOT AN INTERRUPTION OVER WHICH THE APPLICANT HAD
NO CONTROL - THE APPLICANT'S RESTRICTION OF ITS ACTIVITIES TO EXEMPT
OPERATIONS IN NEW YORK HARBOR IN WARTIME NOT BEING SHOWN TO HAVE BEEN
OTHER THAN VOLUNTARY - WAS SUPPORTED BY THE FINDINGS AND THE EVIDENCE,
AND JUSTIFIED THE COMMISSION'S DENIAL OF THE APPLICATION.  P. 659. 

MCALLISTER LIGHTERAGE LINE, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

DIRECT APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES
DISMISSING A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION WHICH DENIED APPELLANT'S APPLICATION FOR A CERTIFICATE AS A
COMMON CARRIER BY WATER UNDER THE "GRANDFATHER" CLAUSE OF SEC. 309(A)
OF PART III OF THE INTERSTATE COMMERCE ACT.  AFFIRMED, P. 661. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT APPLIED TO THE INTERSTATE COMMERCE COMMISSION FOR A
CERTIFICATE AS A COMMON CARRIER BY WATER UNDER THE "GRANDFATHER" CLAUSE
OF SEC. 309(A) OF PART III OF THE INTERSTATE COMMERCE ACT.  FN1  THE
AUTHORITY SOUGHT WAS TO CONTINUE A TRANSPORTATION SERVICE BY TUG AND
BARGE WHICH APPELLANT HAD PERFORMED AT ONE TIME OVER ROUTES ALONG THE
ATLANTIC SEABOARD AND CERTAIN INLAND WATERWAYS.  THE APPLICATION WAS
DENIED BY THE COMMISSION.  A SPECIALLY-CONSTITUTED DISTRICT COURT
UPHELD THE COMMISSION'S ORDER, DISMISSING APPELLANT'S SUIT TO SET THE
ORDER ASIDE.  THE CASE COMES TO US BY DIRECT APPEAL FROM THE DISTRICT
COURT. 

UNDER SEC. 309(A) APPELLANT WAS ENTITLED TO A CERTIFICATE WITHOUT
PROOF OF PUBLIC CONVENIENCE OR NECESSITY IF IT COULD DEMONSTRATE THAT
IT OR ITS PREDECESSOR IN INTEREST "WAS IN BONA FIDE OPERATION AS A
COMMON CARRIER BY WATER ON JANUARY 1, 1940, OVER THE ROUTE OR ROUTES OR
BETWEEN THE PORTS WITH RESPECT TO WHICH APPLICATION IS MADE AND HAS SO
OPERATED SINCE THAT TIME (OR, IF ENGAGED IN FURNISHING SEASONAL SERVICE
ONLY, WAS IN BONA FIDE OPERATION DURING THE SEASONAL PERIOD, PRIOR TO
OR INCLUDING SUCH DATE, FOR OPERATIONS OF THE CHARACTER IN QUESTION)
EXCEPT, IN EITHER EVENT, AS TO INTERRUPTIONS OF SERVICE OVER WHICH THE
APPLICANT OR ITS PREDECESSOR IN INTEREST HAD NO CONTROL  ..." 

THE UNDISPUTED EVIDENCE SUBMITTED TO THE COMMISSION REVEALED THAT
APPELLANT OR ITS PREDECESSORS HAVE BEEN ENGAGED IN MARINE
TRANSPORTATION SINCE 1864 AND THAT THE BUSINESS HAS BEEN CONTINUOUSLY
OWNED BY ITS FOUNDER OR HIS DESCENDANTS THROUGH FOUR GENERATIONS.  PAST
ACTIVITIES HAVE BEEN EXTENSIVE AND VARIED AND HAVE INCLUDED THE FREIGHT
SERVICES FORMING THE SUBJECT MATTER OF THE APPLICATION IN ISSUE. 

APPELLANT CONCEDED BEFORE THE COMMISSION, HOWEVER, THAT FROM 1933
THROUGH 1939 ITS FREIGHT OPERATIONS VIRTUALLY CEASED  FN2  AND THAT ITS
ACTIVITIES WERE CONFINED PRIMARILY TO OPERATIONS IN THE NEW YORK HARBOR
AREA WHICH WERE OF A TYPE EXEMPT FROM REGULATION UNDER THE INTERSTATE
COMMERCE ACT.  FN3  APPELLANT CLAIMED THAT IT HAD BENT EVERY EFFORT
DURING THESE YEARS TO OBTAIN FREIGHT CUSTOMERS AND THAT THE PAUCITY OF
ITS OPERATIONS RESULTED SOLELY FROM THE SEVERE ECONOMIC DEPRESSION
WHICH PREVAILED DURING THAT PERIOD.  IT WAS ARGUED THAT THIS
INTERRUPTION IN FREIGHT SERVICE PRIOR TO JANUARY 1, 1940, WAS DUE TO
FACTORS BEYOND APPELLANT'S CONTROL WITHIN THE MEANING OF THE PROVISO OF
SEC. 309(A), PREVENTING A FORFEITURE OF ITS "GRANDFATHER" RIGHTS. 

SINCE JANUARY 1, 1940, APPELLANT'S FLEET HAS BEEN ENGAGED ALMOST
EXCLUSIVELY WITHIN THE NEW YORK HARBOR IN THE PERFORMANCE OF LIGHTERAGE
AND OTHER WORK ESSENTIAL TO THE WAR EFFORT.  SO GREAT WERE ITS
COMMITMENTS FOR SERVICE WITHIN THE HARBOR THAT IT HAS BEEN UNABLE TO
ACCEPT OTHER TRAFFIC WHEN OFFERED.  APPELLANT'S CLAIM WAS THAT THIS
DIVERSION OF ITS VESSELS TO WAR WORK AFTER JANUARY 1, 1940, WAS ALSO AN
INTERRUPTION IN REGULAR SERVICE BEYOND ITS CONTROL, FURTHER PREVENTING
A FORFEITURE OF "GRANDFATHER" RIGHTS UNDER SEC. 309(A). 

APPELLANT THUS ADMITTED BEFORE THE COMMISSION THAT IT WAS NOT
ENTITLED TO A CERTIFICATE UNDER THE "GRANDFATHER" CLAUSE UNLESS THE
BUSINESS DEPRESSION AND THE WAR SERVICE CONSTITUTED COMPLETE AND
INVOLUNTARY INTERRUPTIONS IN ITS REGULAR FREIGHT SERVICE, THEREBY
BRINGING THE PROVISO OF SEC. 309(A) INTO OPERATION.  AFTER REVIEWING
THE EVIDENCE, THE COMMISSION MADE THE FOLLOWING CONCLUSIONS:  "THE
EVIDENCE OF RECORD ESTABLISHES THE FACT THAT APPLICANT FOR A PERIOD OF
OVER 10 YEARS HAS PERFORMED ONLY AN INCONSEQUENTIAL AMOUNT OF
TRANSPORTATION OF A KIND THAT IS NOW SUBJECT TO THE ACT, AND THAT IT IS
NOT HOLDING ITSELF OUT AT THE PRESENT TIME TO PERFORM SUCH
TRANSPORTATION.  OBVIOUSLY, THE REMOTE OPERATIONS HERETOFORE DESCRIBED
DO NOT ESTABLISH BONA FIDE OPERATIONS ON JANUARY 1, 1940, AND SINCE. 
FURTHERMORE, APPLICANT HAS CONSIDERABLE FACILITIES AVAILABLE AT THE
PRESENT TIME, THE USE OF WHICH IT VOLUNTARILY HAS CONFINED TO EXEMPT
TRANSPORTATION WITHIN THE LIMITS OF NEW YORK HARBOR.  WE AFFIRM THE
CONCLUSION OF THE PRIOR REPORT THAT APPLICANT HAS NOT ESTABLISHED THAT
IT IS ENTITLED TO 'GRANDFATHER' RIGHTS." 

THE DISTRICT COURT HELD THAT THE COMMISSION FAILED TO MAKE
SUFFICIENTLY DEFINITE FINDINGS THAT THE INTERRUPTION IN SERVICE ON OR
PRIOR TO JANUARY 1, 1940, EITHER WAS OR WAS NOT BEYOND THE CONTROL OF
APPELLANT AND ITS PREDECESSORS.  THE COMMISSION MERELY FOUND THE
ADMITTED FACT THAT APPELLANT DID NOT PERFORM A SUFFICIENT AMOUNT OF
BONA FIDE OPERATIONS ON OR PRIOR TO THE CRUCIAL DATE.  THE DISTRICT
COURT FELT THAT IF THAT FINDING WERE THE SOLE BASIS OF THE COMMISSION'S
ACTION, THERE WOULD BE MERIT TO APPELLANT'S CONTENTION THAT THE CASE
SHOULD BE REMANDED TO THE COMMISSION FOR A CLARIFICATION OF ITS
FINDINGS.  BUT THIS ASSUMES THAT THE PROVISO OF SEC. 309(A) REGARDING
INTERRUPTION OF SERVICE OVER WHICH THE APPLICANT HAD NO CONTROL RELATES
TO THE SERVICE "ON JANUARY 1, 1940," AS WELL AS TO THE SERVICE
SUBSEQUENT TO THAT DATE.  THE GOVERNMENT CONTENDS, HOWEVER, THAT THE
PROVISO REFERS ONLY TO THE LATTER SERVICE AND THAT IF THERE IS NO PROOF
OF SERVICE ON THE "GRANDFATHER" DATE THE APPLICANT IS NOT ENTITLED TO A
CERTIFICATE UPON PROOF THAT SUCH LACK OF SERVICE WAS DUE TO
CIRCUMSTANCES BEYOND THE APPLICANT'S CONTROL.  UNDER THIS VIEW THE
COMMISSION'S FAILURE TO MAKE ADEQUATE FINDINGS AS TO INTERRUPTION OF
SERVICE PRIOR TO JANUARY 1, 1940, BECOMES IMMATERIAL. 

WE DEEM IT UNNECESSARY AT THIS TIME, HOWEVER, TO SETTLE THIS PROBLEM
OF STATUTORY CONSTRUCTION, IT BEING CLEAR IN ANY EVENT THAT THE PROVISO
IS APPLICABLE TO INTERRUPTIONS AFTER JANUARY 1, 1940.  FAILURE TO PROVE
THAT SUCH AN INTERRUPTION WAS BEYOND THE APPLICANT'S CONTROL LEADS TO A
FORFEITURE OF "GRANDFATHER" RIGHTS.  AS TO THAT ISSUE WE AGREE WITH THE
DISTRICT COURT THAT THE COMMISSION MADE ADEQUATE FINDINGS THAT
APPELLANT FAILED TO SHOW CONTINUITY OF SERVICE SUBSEQUENT TO JANUARY 1,
1940, AND THAT THERE WAS NO RECOGNIZABLE EXCUSE FOR THE LACK OF
SERVICE.  THE COMMISSION EXPRESSLY FOUND THAT APPELLANT "IS NOT HOLDING
ITSELF OUT AT THE PRESENT TIME TO PERFORM SUCH TRANSPORTATION" AND THAT
IT "HAS CONSIDERABLE FACILITIES AVAILABLE AT THE PRESENT TIME, THE USE
OF WHICH IT VOLUNTARILY HAS CONFINED TO EXEMPT TRANSPORTATION WITHIN
THE LIMITS OF NEW YORK HARBOR."  THIS CLEARLY MEANS THAT, IN THE
COMMISSION'S VIEW, THE WAR EMERGENCY DID NOT COMPEL APPELLANT TO
RESTRICT ITS ACTIVITIES TO EXEMPT OPERATIONS IN THE HARBOR AREA,
THEREBY MAKING THE PROVISO OF SEC. 309(A) INAPPLICABLE.  THAT
CONCLUSION, WE BELIEVE, IS AMPLY SUPPORTED BY THE EVIDENCE AND
CONTRAVENES NO STATUTORY RULE. 

THERE WAS NO EVIDENCE BEFORE THE COMMISSION THAT APPELLANT'S WAR WORK
WAS OTHER THAN VOLUNTARY IN CHARACTER.  APPELLANT CONCEDED THE LACK OF
ANY GOVERNMENTAL ORDER RESTRICTING ITS ACTIVITIES SOLELY TO THE NEW
YORK HARBOR AREA OR PROHIBITING IT FROM OPERATING OVER THE ROUTES IT
NOW SEEKS TO PLY.  FN4  THE MAJOR CLAIM, WITHOUT SUPPORTING EVIDENCE,
WAS THAT THE TRAFFIC IN THE NEW YORK HARBOR WAS SO GREAT DURING THE WAR
AS TO NECESSITATE INTENSIVE UTILIZATION OF EVERY AVAILABLE TUG, BARGE,
LIGHTER AND SCOW IN THE MOVEMENT OF WAR CARGOES.  IT WAS ALSO ALLEGED,
WITHOUT PROOF, THAT THE OFFICE OF DEFENSE TRANSPORTATION BEYOND "THE
SLIGHTEST DOUBT" WOULD HAVE FRUSTRATED ANY ATTEMPT BY APPELLANT TO
UTILIZE A SUBSTANTIAL PORTION OF ITS FLEET IN FREIGHT SERVICE ALONG THE
ATLANTIC COAST AND, IF NECESSARY, WOULD HAVE REQUESTED THE WAR SHIPPING
ADMINISTRATION TO REQUISITION APPELLANT'S VESSELS.  FN5  THE
SPECULATIVE AND INSUBSTANTIAL NATURE OF THESE UNSUPPORTED CLAIMS IS
OBVIOUS.  THEY REST UPON THE QUESTIONABLE ASSUMPTION THAT ESSENTIAL WAR
WORK COULD BE DONE ONLY IN THE NEW YORK HARBOR AND THAT THERE WAS NO
ESSENTIAL TRANSPORTATION SERVICE ALONG THE ATLANTIC COAST OR INLAND
WATERWAYS IN WHICH APPELLANT COULD HAVE PARTICIPATED.  THEY REQUIRE ONE
TO GUESS WHAT ACTION GOVERNMENTAL AGENCIES WOULD HAVE TAKEN UNDER
HYPOTHETICAL SITUATIONS.  WE DO NOT IMPLY, OF COURSE, THAT SUCH CLAIMS
ARE UNTRUE OR THAT, IF PROVED, THEY MIGHT NOT ADEQUATELY SUPPORT
APPELLANT'S POSITION.  BUT THERE IS NOTHING IN THIS RECORD TO
SUBSTANTIATE THE CLAIMS.  CERTAINLY AN ADMINISTRATIVE ORDER SHOULD BE
GROUNDED UPON SOMETHING MORE DEFINITE AND SUBSTANTIAL THAN THE SURMISES
OFFERED BY APPELLANT. 

APPELLANT'S ACTIVITIES HAD BEEN CONFINED TO THE NEW YORK HARBOR AREA
SINCE 1933, LONG BEFORE THE OUTBREAK OF THE WAR.  IN THE ABSENCE OF ANY
ATTEMPT TO EXPAND THE ACTIVITIES AND IN THE ABSENCE OF PROOF OF ANY
GOVERNMENTAL RESTRICTION, IT WAS REASONABLE TO FIND THAT APPELLANT
VOLUNTARILY CHOSE TO CONTINUE ITS ACTIVITIES ON A LIMITED SCALE.  SUCH
A CHOICE MAY WELL HAVE BEEN DICTATED BY CONSIDERATIONS OF PROFIT AND
CONVENIENCE.  THAT THESE LIMITED ACTIVITIES COINCIDED WITH WARTIME
NEEDS DOES NOT NECESSARILY PROVE THAT THEY WERE OTHER THAN VOLUNTARY IN
NATURE.  MUCH ACTIVITY IN RECENT YEARS FURTHERED THE WAR EFFORT
ALTHOUGH IT WAS PROFITABLE AND ALTHOUGH IT WAS DONE WITHOUT COMPULSION
BY PUBLIC AUTHORITY. 

THE COMMISSION WAS THEREFORE JUSTIFIED IN CONCLUDING THAT APPELLANT'S
FAILURE TO ENGAGE IN BONA FIDE OPERATIONS SINCE JANUARY 1, 1940, WAS
DUE TO CIRCUMSTANCES OTHER THAN THOSE OVER WHICH APPELLANT HAD NO
CONTROL.  APPELLANT ACCORDINGLY FORFEITED WHATEVER "GRANDFATHER" RIGHTS
IT MIGHT HAVE HAD.  AFFIRMED. 

FN1  49 U.S.C. SEC. 909(A). 

FN2  IN 1937 MACHINERY, AIRPLANES, GUNS AND PARTS WERE CARRIED
BETWEEN NEW YORK HARBOR, HUDSON RIVER AND LONG ISLAND SOUND POINTS BUT
THIS SERVICE HAS NOT BEEN REPEATED. 

FN3  UNDER SEC. 303(G) OF THE ACT, TRANSPORTATION IN INTERSTATE
COMMERCE BY WATER SOLELY WITHIN THE LIMITS OF A SINGLE HARBOR IS EXEMPT
FROM REGULATIONS UNDER THE ACT, UNLESS THE COMMISSION FINDS THAT THE
NATIONAL TRANSPORTATION POLICY REQUIRES REGULATION. 

FN4  CF. AMERICAN-HAWAIIAN STEAMSHIP COMPANY COMMON CARRIER
APPLICATION, 250 I.C.C. 219, 222; BULL STEAMSHIP LINE COMMON CARRIER
APPLICATION, 250 I.C.C. 317, 319; ISTHMIAN STEAMSHIP COMPANY COMMON
CARRIER APPLICATION, 250 I.C.C. 359, 362; SOUTHERN PACIFIC COMPANY
COMMON CARRIER APPLICATION, 250 I.C.C. 457, 462; COAST TRANSPORTATION
CO., INC., COMMON AND CONTRACT CARRIER APPLICATION, 250 I.C.C. 469,
472; WEYERHAEUSER STEAMSHIP CO. COMMON CARRIER APPLICATION, 250 I.C.C.
477, 479; AMERICAN RANGE LINES, INC., CONTRACT CARRIER APPLICATION, 250
I.C.C. 510, 511; GREAT LAKES TRANSIT CORPORATION APPLICATIONS, 260
I.C.C. 9, 10; PROVIDENCE STEAMBOAT COMPANY CONTRACT CARRIER
APPLICATION, 260 I.C.C. 23, 24; ST. JOHNS RIVER LINE CO. COMMON CARRIER
APPLICATION, 260 I.C.C. 74, 77; NICHOLSON TRANSIT CO. CONTRACT CARRIER
APPLICATION, 260 I.C.C. 232, 233. 

FN5  APPELLANT POINTED OUT THAT THE GOVERNMENT EXERTED CONTROL OVER
ALL DOMESTIC SHIPPING DURING THE WAR.  THE OFFICE OF DEFENSE
TRANSPORTATION, FOR EXAMPLE, CONFINED BARGE MOVEMENTS ALONG THE
ATLANTIC COAST LARGELY TO THE MOVEMENT OF COAL. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE
DISSENT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














ELGIN, J. & E.R. CO. V. BURLEY, 327 U.S. 661 


NO. 160, OCTOBER TERM, 1944.  REARGUED DECEMBER 3, 4, 1945.  - DECIDED
MARCH 25, 1946. 


1.  ON REHEARING, THE COURT ADHERES TO ITS PREVIOUS DECISION IN THIS
CASE.  ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711.  P. 662. 

2.  AS IN ITS PREVIOUS OPINION, THE COURT EXPRESSLY REFRAINS FROM
MAKING ANY DEFINITIVE STATEMENT AS TO WHAT MIGHT BE SUFFICIENT EVIDENCE
OF A COLLECTIVE AGENT'S AUTHORITY EITHER TO SETTLE FINALLY AN AGGRIEVED
INDIVIDUAL EMPLOYEE'S CLAIMS OR TO REPRESENT HIM EXCLUSIVELY BEFORE THE
ADJUSTMENT BOARD.  P. 663. 

3.  WHEN AN AWARD OF THE ADJUSTMENT BOARD INVOLVING AN EMPLOYEE'S
INDIVIDUAL GRIEVANCE IS CHALLENGED IN THE COURTS, ONE WHO WOULD UPSET
IT CARRIES THE BURDEN OF SHOWING THAT IT WAS WRONG.  P. 664. 

4.  THE PREVIOUS DECISION IS NOT TO BE INTERPRETED AS MEANING THAT AN
EMPLOYEE MAY STAND BY WITH KNOWLEDGE OR NOTICE OF WHAT IS GOING ON WITH
REFERENCE TO HIS CLAIM, EITHER BETWEEN THE CARRIER AND THE UNION ON THE
PROPERTY, OR BEFORE THE BOARD ON THEIR SUBMISSION, ALLOW MATTERS TO
PROCEED TO A DETERMINATION BY ONE METHOD OR THE OTHER, AND THEN COME IN
FOR THE FIRST TIME TO ASSERT HIS INDIVIDUAL RIGHTS.  P. 666. 

ELGIN, JOLIET & EASTERN RAILWAY CO. V. BURLEY ET AL. 

ON REHEARING. 

UPON REHEARING, 326 U.S. 801, OF THE DECISION OF THE COURT AT THE
1944 TERM IN ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711.  AFFIRMED,
P. 667. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

WE ADHERE TO OUR DECISION RENDERED IN THE OPINION FILED AFTER THE
FIRST ARGUMENT.  325 U.S. 711.  FN1  THAT OPINION EXPRESSLY REFRAINED
FROM UNDERTAKING TO MAKE A DEFINITIVE STATEMENT OF WHAT MIGHT BE
SUFFICIENT EVIDENCE OF THE COLLECTIVE AGENT'S AUTHORITY EITHER TO
SETTLE FINALLY THE AGGRIEVED INDIVIDUAL EMPLOYEE'S CLAIMS OR TO
REPRESENT HIM EXCLUSIVELY BEFORE THE ADJUSTMENT BOARD.  WE DO NOT
ATTEMPT TO DO SO NOW.  FOR WHETHER THE COLLECTIVE AGENT HAS SUCH
AUTHORITY IS A QUESTION WHICH MAY ARISE IN MANY TYPES OF SITUATIONS
INVOLVING THE GRIEVANCES EITHER OF MEMBERS OF THE UNION OR OF
NONMEMBERS, OR BOTH, AND NECESSARILY THEREFORE NO ALL-INCLUSIVE RULE
CAN BE FORMULATED FOR ALL SUCH SITUATIONS.  BUT NEITHER DOES THIS MEAN
THAT AN EQUALLY ALL-EXCLUSIVE RULE MUST BE FOLLOWED, NAMELY, THAT
AUTHORITY CAN BE GIVEN OR SHOWN ONLY IN SOME PARTICULAR WAY. 

THE QUESTION WHETHER THE COLLECTIVE AGENT HAS AUTHORITY, IN THE TWO
PERTINENT RESPECTS, DOES NOT TURN ON TECHNICAL AGENCY RULES SUCH AS
APPLY IN THE SIMPLE, INDIVIDUALISTIC SITUATION WHERE P DEALS WITH T
THROUGH A ABOUT THE SALE OF BLACKACRE.  WE ARE DEALING HERE WITH
PROBLEMS IN A SPECIALIZED FIELD, WITH A LONG BACKGROUND OF CUSTOM AND
PRACTICE IN THE RAILROAD WORLD.  AND THE FACT THAT SEC. 3 FIRST (I)
PROVIDES THAT DISPUTES BETWEEN CARRIERS AND THEIR EMPLOYEES ARISING OUT
OF GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION OF AGREEMENTS
CONCERNING RATES OF PAY, RULES OR WORKING CONDITIONS "SHALL BE HANDLED
IN THE USUAL MANNER" UP TO AND INCLUDING THE CHIEF OPERATING OFFICER OF
THE CARRIER, INDICATES THAT CUSTOM AND USAGE MAY BE AS ADEQUATE A BASIS
OF AUTHORITY AS A MORE FORMAL AUTHORIZATION FOR THE UNION, WHICH
RECEIVES A GRIEVANCE FROM AN EMPLOYEE FOR HANDLING, TO REPRESENT HIM IN
SETTLING IT OR IN PROCEEDINGS BEFORE THE BOARD FOR ITS DETERMINATION. 
FN2 

MOREOVER, WHEN AN AWARD OF THE ADJUSTMENT BOARD INVOLVING AN
EMPLOYEE'S INDIVIDUAL GRIEVANCE IS CHALLENGED IN THE COURTS, ONE WHO
WOULD UPSET IT CARRIES THE BURDEN OF SHOWING THAT IT WAS WRONG.  FN3
ITS ACTION IN ADJUSTING AN INDIVIDUAL EMPLOYEE'S GRIEVANCE AT THE
INSTANCE OF THE COLLECTIVE BARGAINING AGENT IS ENTITLED TO PRESUMPTIVE
WEIGHT.  FOR, IN THE FIRST PLACE, THERE CAN BE NO PRESUMPTION EITHER
THAT THE UNION SUBMITTING THE DISPUTE WOULD UNDERTAKE TO USURP THE
AGGRIEVED EMPLOYEE'S RIGHT TO PARTICIPATE IN THE PROCEEDINGS BY OTHER
REPRESENTATION OF HIS OWN CHOICE, OR THAT THE BOARD KNOWINGLY WOULD ACT
IN DISREGARD OR VIOLATION OF THAT RIGHT.  ITS DUTY, AND THE UNION'S,
ARE TO THE CONTRARY UNDER THE ACT.  FN4 

FURTHERMORE, THE BOARD IS ACQUAINTED WITH ESTABLISHED PROCEDURES,
CUSTOMS AND USAGES IN THE RAILWAY LABOR WORLD.  IT IS THE SPECIALIZED
AGENCY SELECTED TO ADJUST THESE CONTROVERSIES.  ITS EXPERTISE IS
ADAPTED NOT ONLY TO INTERPRETING A COLLECTIVE BARGAINING AGREEMENT,
FN5  BUT ALSO TO ASCERTAINING THE SCOPE OF THE COLLECTIVE AGENT'S
AUTHORITY BEYOND WHAT THE ACT ITSELF CONFERS, IN VIEW OF THE EXTENT TO
WHICH THIS ALSO MAY BE AFFECTED BY CUSTOM AND USAGE. 

WE ALSO POINTED OUT THAT THE ACT IMPOSES CORRELATIVE AFFIRMATIVE
DUTIES UPON THE CARRIER, THE COLLECTIVE AGENT AND THE AGGRIEVED
EMPLOYEE TO MAKE EVERY REASONABLE EFFORT TO SETTLE THE DISPUTE.  FN6
IT WOULD BE ENTIRELY INCONSISTENT FOR THE ACT TO REQUIRE THE CARRIER
AND THE UNION TO NEGOTIATE CONCERNING THE SETTLEMENT OF THE GRIEVANCE
AND, WHILE WITHHOLDING POWER FROM THEM TO MAKE THAT SETTLEMENT
EFFECTIVE FINALLY AS AGAINST THE EMPLOYEE, TO RELIEVE HIM ALTOGETHER OF
OBLIGATION IN THE MATTER.  NOT ONLY IS HE REQUIRED TO TAKE AFFIRMATIVE
STEPS.  HIS FAILURE TO DO SO MAY RESULT IN LOSS OF HIS RIGHTS.  FN7 

IT IS NOT LIKELY THAT WORKINGMEN HAVING GRIEVANCES WILL BE IGNORANT
IN MANY CASES EITHER OF NEGOTIATIONS CONDUCTED BETWEEN THE COLLECTIVE
AGENT AND THE CARRIER FOR THEIR SETTLEMENT OR OF THE FACT THAT THE
DISPUTE HAS BEEN SUBMITTED BY ONE OR THE OTHER TO THE ADJUSTMENT BOARD
FOR DETERMINATION.  THOSE NEGOTIATIONS, AS THE ACT REQUIRES, ARE
CONDUCTED ON THE PROPERTY.  SEC. 2 SIXTH.  ORDINARILY SUBMISSIONS ARE
NOT, AND THE STATUTE CONTEMPLATES THAT THEY SHALL NOT BE, MADE TO THE
BOARD UNTIL AFTER ALL REASONABLE EFFORTS TO REACH AN AGREEMENT HAVE
BEEN EXHAUSTED IN GOOD FAITH.  FN8 

IN VIEW OF THESE FACTS THERE CANNOT BE MANY INSTANCES IN WHICH AN
AGGRIEVED EMPLOYEE WILL NOT HAVE KNOWLEDGE OR NOTICE THAT NEGOTIATIONS
AFFECTING HIS CLAIM ARE BEING CONDUCTED OR, IF THEY FAIL, THAT
PROCEEDINGS ARE PENDING BEFORE THE BOARD TO DISPOSE OF IT.  FN9
ALTHOUGH UNDER OUR RULING HIS RIGHTS TO HAVE VOICE IN THE SETTLEMENT
ARE PRESERVED, WHETHER BY CONFERRING WITH THE CARRIER AND, HAVING
SEASONABLY DONE SO, REFUSING TO BE BOUND BY A SETTLEMENT REACHED OVER
HIS PROTEST, OR BY HAVING REPRESENTATION BEFORE THE BOARD ACCORDING TO
HIS OWN CHOICE, WE DID NOT RULE, AND THERE IS NO BASIS FOR ASSUMING WE
DID, THAT AN EMPLOYEE CAN STAND BY WITH KNOWLEDGE OR NOTICE OF WHAT IS
GOING ON WITH REFERENCE TO HIS CLAIM, EITHER BETWEEN THE CARRIER AND
THE UNION ON THE PROPERTY, OR BEFORE THE BOARD ON THEIR SUBMISSION,
ALLOW MATTERS TO BE THRASHED OUT TO A CONCLUSION BY ONE METHOD OR THE
OTHER, AND THEN COME IN FOR THE FIRST TIME TO ASSERT HIS INDIVIDUAL
RIGHTS.  NO SUCH RULING WAS NECESSARY FOR THEIR PRESERVATION AND NONE
WAS INTENDED. 

IT MAY BE, AS WE SAID PREVIOUSLY, THAT RESPONDENTS UPON THE FURTHER
HEARING WILL FIND IT DIFFICULT TO SUSTAIN THEIR ALLEGATIONS, WHETHER
WITH REFERENCE TO KNOWLEDGE OR NOTICE IN THE MATERIAL RESPECTS
CONCERNING WHICH THEY HAVE DENIED HAVING IT OR OTHERWISE.  BUT WHETHER
THIS BURDEN WILL BE EASY OR IMPOSSIBLE TO CARRY, THEY ARE ENTITLED TO
UNDERTAKE IT IN THE FORUM WHERE SUCH ISSUES PROPERLY ARE TRIABLE. 

THE JUDGMENT IS AFFIRMED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION AND THE PREVIOUS OPINION FILED
IN THIS CAUSE. 

FN1  THE PETITION FOR REHEARING, WHICH RESULTED IN SETTING THE CASE
FOR REARGUMENT, WAS SUPPORTED BY MOTIONS FILED AMICUS CURIAE BY VARIOUS
LABOR ORGANIZATIONS AND BY THE OFFICE OF THE SOLICITOR GENERAL.  UPON
GRANTING OF THE MOTIONS, THOSE ORGANIZATIONS AND THE SOLICITOR GENERAL
FILED BRIEFS AMICUS CURIAE AND THE LATTER PARTICIPATED IN THE
ARGUMENT.  VARIOUS POSITIONS WERE TAKEN UPON THE MERITS WHICH WE HAVE
CONSIDERED BUT DO NOT FIND IT NECESSARY TO SET FORTH. 

FN2  FURTHERMORE, SO FAR AS UNION MEMBERS ARE CONCERNED, AND THEY ARE
THE ONLY PERSONS INVOLVED AS RESPONDENTS IN THIS CAUSE, IT IS
ALTOGETHER POSSIBLE FOR THE UNION TO SECURE AUTHORITY IN THESE RESPECTS
WITHIN WELL ESTABLISHED RULES RELATING TO UNINCORPORATED ORGANIZATIONS
AND THEIR RELATIONS WITH THEIR MEMBERS, BY APPROPRIATE PROVISIONS IN
THEIR BY-LAWS, CONSTITUTION OR OTHER GOVERNING REGULATIONS, AS WELL AS
BY USAGE OR CUSTOM.  THERE WAS NOTHING TO THE CONTRARY IN OUR FORMER
OPINION.  WE ONLY RULED THAT ON THE SHOWING MADE IN THIS RESPECT, WHICH
INCLUDED CONTROVERTED ISSUES CONCERNING THE MEANING AND APPLICABILITY
OF THE UNION'S REGULATIONS, AND THE EFFECTS OF CUSTOM AND USAGE, WE
COULD NOT SAY AS A MATTER OF LAW THAT THE DISPUTED AUTHORITY HAD BEEN
GIVEN. 

FN3  IN A SOMEWHAT DIFFERENT CONNECTION, WHICH HOWEVER WE THINK NOT
WITHOUT WEIGHT HERE, SEC. 3 FIRST (P) PROVIDES THAT THE BOARD'S AWARD
"SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN STATED" IN THE
STATUTORY SUIT PROVIDED FOR ENFORCEMENT OF AWARDS. 

FN4  THE CONTRARY PRACTICE NOTED IN OUR FORMER OPINION, 325 U.S. 732
733, HAS BEEN DUE WITHOUT QUESTION, WE THINK, TO THE BOARD'S ERRONEOUS
CONCEPTION, ACCEPTED GENERALLY ALSO BY THE UNIONS AND STRONGLY URGED IN
THIS CASE ESPECIALLY UPON THE REARGUMENT, THAT THE ACT ITSELF,
NOTWITHSTANDING THE PROVISIONS PARTICULARLY OF SEC. 3 FIRST (J) AND THE
PROVISO TO SEC. 2 FOURTH, CONFERS EXCLUSIVE STATUTORY POWER UPON THE
COLLECTIVE AGENT TO DEAL WITH THE CARRIER CONCERNING INDIVIDUAL
GRIEVANCES AND TO REPRESENT THE AGGRIEVED EMPLOYEE IN BOARD
PROCEEDINGS. 

FN5  WE RECENTLY EMPHASIZED THIS IN ORDER OF RAILWAY CONDUCTORS V.
PITNEY, 326 U.S. 561, 567, IN WHICH WE SAID:  "SINCE ALL PARTIES SEEK
TO SUPPORT THEIR PARTICULAR INTERPRETATION OF THESE AGREEMENTS BY
EVIDENCE AS TO USAGE, PRACTICE AND CUSTOM, THAT TOO MUST BE TAKEN INTO
ACCOUNT AND PROPERLY UNDERSTOOD.  THE FACTUAL QUESTION IS INTRICATE AND
TECHNICAL.  AN AGENCY ESPECIALLY COMPETENT AND SPECIFICALLY DESIGNATED
TO DEAL WITH IT HAS BEEN CREATED BY CONGRESS." 

FN6  SEE 325 U.S. 711 AT NOTES 12, 18 AND TEXT.  WE SAID:  "THE
OBLIGATION (TO NEGOTIATE) IS NOT PARTIAL.  IN PLAIN TERMS THE DUTY IS
LAID ON CARRIER AND EMPLOYEES ALIKE, TOGETHER WITH THEIR
REPRESENTATIVES; AND IN EQUALLY PLAIN TERMS IT APPLIES TO ALL DISPUTES
COVERED BY THE ACT, WHETHER MAJOR OR MINOR."  NOTE 18.  CF. VIRGINIAN
R. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 548; RAILROAD TRAINMEN V.
TOLEDO, P. & W. R. CO., 321 U.S. 50, 56 FF. 

FN7  EVEN THE ORDINARY LAW OF AGENCY ATTRIBUTES AUTHORITY TO A
REPRESENTATIVE TO ACT WHEN THE PRINCIPAL STANDS BY WITH KNOWLEDGE OR
NOTICE OF HIS ASSUMPTION OF THAT AUTHORITY AND PERMITS THE THIRD PERSON
TO ACT TO HIS INJURY UPON THE SAME ASSUMPTION.  CF. SEAVEY, THE
RATIONAL OF AGENCY (1920) 29 YALE L.J. 859, 873 ET SEQ.; AND OTHER
AUTHORITIES CITED IN MECHEM, CASES ON THE LAW OF AGENCY (3D ED.)  186,
NOTE.  AND OF COURSE THE ASSUMPTION THAT EVEN SO-CALLED COMMON LAW
RULES OF AGENCY ALLOW NO ROOM FOR THE PLAY OF USAGE AND CUSTOM IS, TO
SAY THE LEAST, NAIVE. 

FN8  CF. NOTE 6 AND AUTHORITIES CITED. 

FN9  WE POINTED OUT IN THE FORMER OPINION THAT SEC. 3 FIRST (J)
EXPRESSLY PROVIDES THAT "THE SEVERAL DIVISIONS OF THE ADJUSTMENT BOARD
SHALL GIVE DUE NOTICE OF ALL HEARINGS TO THE EMPLOYEE OR EMPLOYEES AND
THE CARRIER OR CARRIERS INVOLVED IN ANY DISPUTE SUBMITTED TO THEM," 325
U.S. AT 731, 734, AND THIS PROVISION, WITH THE EMPHASIS WE PLACED UPON
THE PHRASE "TO THE EMPLOYEE" AND THE CONJUNCTION OF THE PROVISION FOR
"DUE NOTICE" WITH THE PROVISION FOR REPRESENTATION "IN PERSON, BY
COUNSEL, OR BY OTHER REPRESENTATIVES," WAS ONE OF THE STATUTORY
MAINSTAYS FOR OUR CONCLUSION THAT THE ACT DID NOT GIVE THE COLLECTIVE
AGENT THE EXCLUSIVE POWERS OVER THE SETTLEMENT OF GRIEVANCES CLAIMED
FOR IT. 

BUT WE DID NOT UNDERTAKE TO DEFINE WHAT WAS MEANT BY "DUE NOTICE,"
NOR DO WE NOW.  "DUE NOTICE" CONCEIVABLY COULD BE GIVEN OR HAD IN A
VARIETY OF FORMS, MORE ESPECIALLY WHEN ACCOUNT IS TAKEN OF THE
GENERALLY INFORMAL PROCEDURE OF THE BOARD.  IT WOULD REQUIRE AT THE
LEAST, WE THINK, KNOWLEDGE ON THE AGGRIEVED EMPLOYEE'S PART OF THE
PENDENCY OF THE PROCEEDINGS OR KNOWLEDGE OF SUCH FACTS AS WOULD BE
SUFFICIENT TO PUT HIM ON NOTICE OF THEIR PENDENCY. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE ON THE REARGUMENT. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE CHIEF JUSTICE, MR. JUSTICE BURTON, AND I ARE OF OPINION THAT THE
JUDGMENT SHOULD BE REVERSED.  LAST TERM A DIVIDED COURT HELD THAT A
DETERMINATION BY THE ADJUSTMENT BOARD OF A DISPUTE BROUGHT BEFORE IT BY
A UNION RECOGNIZED AS THE COLLECTIVE BARGAINING AGENT ON BEHALF OF ITS
MEMBERS IS NOT BINDING, AND MAY BE UPSET IN A DISTRICT COURT IN AN
INDEPENDENT SUIT INVOLVING THE CONSTRUCTION OF THE COLLECTIVE
AGREEMENT, BUT BROUGHT BY AN INDIVIDUAL MEMBER ON HIS OWN BEHALF.  325
U.S. 711.  THE DISSENT EXPRESSED THE VIEW THAT "TO ALLOW SUCH
SETTLEMENTS TO BE THUS SET ASIDE IS TO OBSTRUCT THE SMOOTH WORKING OF
THE ACT.  IT UNDERMINES THE CONFIDENCE SO INDISPENSABLE TO ADJUSTMENT
BY NEGOTIATION, WHICH IS THE VITAL OBJECT OF THE ACT."  ID. AT 755-56. 

THE COURT NOW ANNOUNCES THAT IT "ADHERES" TO ITS DECISION.  BUT AS WE
READ THE COURT'S INTERPRETATION OF ITS ORIGINAL OPINION, IT "ADHERES"
TO IT BY EXTRACTING FROM IT ALMOST ALL OF ITS VITALITY.  WE SAY
"ALMOST" BECAUSE THE ONE THING THAT REMAINS IS THE CONCLUSION THAT THE
DETERMINATION BY THE ADJUSTMENT BOARD THAT THE RECOGNIZED UNION
REPRESENTED ITS MEMBERS IS ALLOWED TO BE REOPENED NOT BEFORE THE BOARD
BUT ANEW IN THE COURTS, STATE OR FEDERAL, IN AN INDEPENDENT SUIT BY A
MEMBER OF THE UNION AGAINST THE CARRIER.  TO BE SURE, THE PROSPECTS FOR
REDETERMINATION ARE LARGELY ILLUSORY BECAUSE THE COURT NOW ERECTS A
SERIES OF HURDLES WHICH WILL BE, AND WE ASSUME WERE INTENDED TO BE,
ALMOST IMPOSSIBLE FOR AN EMPLOYEE TO CLEAR.  BUT SINCE LITIGATION IS
AUTHORIZED AND HOPE SPRINGS ETERNAL IN A LITIGANT'S BREAST, THE FAR
REACHING MISCHIEF OF UNSETTLING NONLITIGIOUS MODES OF ADJUSTMENT UNDER
THE MACHINERY OF THE RAILWAY LABOR ACT LARGELY REMAINS.  WHEN PEACEFUL
SETTLEMENTS BETWEEN CARRIERS AND THE BROTHERHOODS ARE SUBJECT TO SUCH
HAZARDS, THE CARRIER CAN HARDLY BE EXPECTED TO NEGOTIATE WITH A UNION
WHOSE AUTHORITY IS SUBJECT TO CONSTANT CHALLENGE.  IT WAS THIS
DISLOCATION OF SETTLED HABITS IN ADJUSTING RAILROAD LABOR RELATIONS
WHICH EVOKED A SERIES OF PETITIONS FOR REHEARING FROM THE UNITED
STATES, THE BROTHERHOODS, THE RAILWAY LABOR EXECUTIVES' ASSOCIATION,
AND THE ORGANIZATIONS OF INDUSTRIAL AND CRAFT UNIONS.  ALL THE
INTERESTS PRIMARILY CONCERNED AND BEST INFORMED ON THESE MATTERS WERE
AROUSED BECAUSE FOR THEM THE OPINION DESTROYED THE CAPACITY OF THE
RAILWAY LABOR ACT TO FULFILL ITS FUNCTION, IGNORED THE NORMAL PRACTICES
OF THE INDUSTRY, AND IMPAIRED THE RIGHTS OF COLLECTIVE BARGAINING
GENERALLY.  BECAUSE OF THIS UNSETTLING EFFECT, NOT ABATED BY THE
PRESENT DECISION'S ADHERENCE TO THE PRIOR BY ADDING NEW COMPLEXITIES -
COMPLEXITIES SO INIMICAL TO HEALTHY RELATIONS ON THE RAILROADS - WE
DEEM IT APPROPRIATE TO ADD TO WHAT WAS SAID IN THE ORIGINAL DISSENT. 
325 U.S. 711, 749.    THAT THESE MISCHIEFS ARE REAL AND POTENT IS
ATTESTED BY THE ARGUMENTS PRESENTED BY THE AMICI CURIAE.  THE UNITED
STATES POINTS OUT: 

"THE RESULT OF LAST TERM'S DECISION HAS BEEN AND WILL BE THAT A
UNION'S AUTHORITY TO SETTLE A GRIEVANCE INVOLVING A CLAIM FOR ACCRUED
DAMAGES WILL ALWAYS BE SUBJECT TO CHALLENGE BY AN INDIVIDUAL WHO DOES
NOT GET ALL HE WANTS, UNLESS THE UNION HAS PREVIOUSLY OBTAINED AN
EXCEEDINGLY EXPLICIT POWER OF ATTORNEY TO ACT ON HIS BEHALF.  THIS
MEANS THAT THE CARRIERS WILL BE LIKELY TO DEMAND PROOF OF SUCH
AUTHORIZATION FROM EVERY INDIVIDUAL INVOLVED BEFORE UNDERTAKING TO
NEGOTIATE A GRIEVANCE CASE, SINCE THEY MIGHT OTHERWISE BE LIABLE TO ANY
EMPLOYEE DISSATISFIED WITH THE SETTLEMENT.  AS WE SHALL SEE, THIS HAS
BEEN WHAT HAS HAPPENED ON THE ADJUSTMENT BOARD. 

IN MANY SIMPLE CASES, OF COURSE, IT WILL NOT BE DIFFICULT FOR THE
ORGANIZATION TO SECURE AN AUTHORIZATION.  IN OTHER TYPES OF CASES,
ALTHOUGH MANY AUTHORIZATIONS COULD PROBABLY BE OBTAINED, IT MIGHT BE
IMPOSSIBLE TO OBTAIN AUTHORITY FROM EVERY INDIVIDUAL INVOLVED.  AND
WHETHER OR NOT IMPOSSIBLE, THE PROCESS OF SECURING NECESSARY
AUTHORIZATIONS MIGHT BE SO PROLONGED AS TO PREVENT PROMPT DISPOSITION
EVEN OF THE MANY CASES WHICH WOULD IN THE PAST HAVE BEEN SPEEDILY
SETTLED ON THE PROPERTIES." 

THE BROTHERHOODS OF LOCOMOTIVE ENGINEERS AND OF RAILROAD TRAINMEN
THUS SUMMARIZE THE EFFECT OF THE COURT'S DECISION: 

"THE IMPACT OF THE COURT'S DECISION ON THE PROCESSES OF GRIEVANCE
ADJUSTMENT HAS ALREADY APPEARED IN THE SUSPENSION OF THE FUNCTIONING OF
THE NATIONAL RAILROAD ADJUSTMENT BOARD AND IN INDICATED DIFFICULTIES ON
VARIOUS RAILROAD PROPERTIES.  IT IS OUR CONVICTION THAT UNLESS THIS
DECISION BE REVERSED OR SUBSTANTIALLY MODIFIED, THE PROMPT AND ORDERLY
SETTLEMENT OF SUCH DISPUTES WILL BE IMPEDED TO A SERIOUS DEGREE.  THE
HOLDING UPSETS LONG ESTABLISHED TECHNIQUES OF GRIEVANCE HANDLING BY
EMPLOYEE REPRESENTATIVES AND ADVERSELY AFFECTS THE ADMINISTRATION AND
ENFORCEMENT OF THE COLLECTIVE AGREEMENTS. 

WE POINT OUT, FIRST, THAT THE COURT'S DECISION CONSTRUES THE RAILWAY
LABOR ACT IN A WAY WHICH FRUSTRATES THE PURPOSES WHICH CONGRESS HAD IN
MIND IN PROVIDING FOR THE SETTLEMENT OF GRIEVANCE DISPUTES." 

"THE SHUTTING DOWN OF THE ADJUSTMENT BOARD BECAUSE OF THE DIFFICULTY
OR THE IMPOSSIBILITY OF SECURING AUTHORIZATIONS IS ONLY ONE DEVELOPMENT
OF THE DECISION.  WE ARE ADVISED THAT SOME MANAGEMENTS ARE INSISTING
THAT LOCAL CHAIRMEN FURNISH POWERS OF ATTORNEY IN DAY TO DAY
ADJUSTMENTS.  CONSIDERING THE VARIOUS FACTORS INVOLVED, SUCH AS THE
VOLUME OF THE GRIEVANCES, THE EXTRA BURDEN PLACED ON THE COMMITTEES,
AND THE ADDITIONAL DELAYS WHICH WOULD BE ENCOUNTERED, THE TASK OF
COMPLIANCE WITH THE TECHNIQUE REQUIRED BY THE COURT'S DECISION SEEMS
CALCULATED TO CAUSE A BREAKDOWN OF GRIEVANCE HANDLING BY EMPLOYEE
REPRESENTATIVES.  IT IS OBVIOUS THAT HANDLING BY INDIVIDUALS OR ON AN
INDIVIDUAL BASIS WILL NOT WORK.  SUCH A BREAKDOWN, OR EVEN THE
IMPAIRMENT OF COLLECTIVE HANDLING AS TRADITIONALLY PRACTICED, WILL BE
SERIOUS, AS PRIOR HISTORY SHOWS." 

"SECOND, THE DECISION IMPAIRS THE FUNCTIONING OF EMPLOYEE
REPRESENTATIVES UNDER THE ACT, AND HAS AN ADVERSE EFFECT UPON THE
MAINTENANCE OF CRAFT AGREEMENTS.  REPRESENTATIVES OF EMPLOYEES HAVE THE
STATUTORY RIGHT AND DUTY (1) TO CONFER WITH MANAGEMENT RESPECTING ALL
DISPUTES (SEC. 2 SECOND) AND SPECIFICALLY THOSE ARISING OUT OF
GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION OF AGREEMENTS
(SEC. 2 SIXTH); AND (2) TO REPRESENT A CRAFT OR CLASS FOR THE PURPOSES
OF THE ACT (SEC. 2 FOURTH).  THE LATTER, OF COURSE, INCLUDES THE RIGHT
TO NEGOTIATE CRAFT AGREEMENTS.  EMPLOYEES, ACTING THROUGH
REPRESENTATIVES, HAVE THE RIGHT TO MAKE AND MAINTAIN AGREEMENTS AND TO
SETTLE ALL DISPUTES (SEC. 2 FOURTH, SEC. 1 FIRST).  THESE PROVISIONS,
WE BELIEVE, SPELL OUT COLLECTIVE BARGAINING RIGHTS WITH WHICH THE
COURT'S DECISION INTERFERES." 

THE RAILWAY LABOR EXECUTIVES' ASSOCIATION AND THE AMERICAN FEDERATION
OF LABOR MAKE THIS ANALYSIS: 

"IN SUMMARY, THEREFORE, WE SUBMIT THAT THE REGULATORY SCHEME OF THE
RAILWAY LABOR ACT REQUIRES FOR ITS EFFECTIVE OPERATION A RECOGNIZED
AUTHORITY IN THE COLLECTIVE BARGAINING REPRESENTATIVE TO PROCEED IN ITS
OWN RIGHT TO ADJUST DISPUTES REGARDING THE INTERPRETATION OR
APPLICATION OF AGREEMENTS.  A DENIAL OF THAT RIGHT WILL PRODUCE NO REAL
BENEFITS TO INDIVIDUAL EMPLOYEES, WILL IMPAIR THE EFFECTIVENESS OF
REPRESENTATIVES AS STABILIZING INFLUENCES IN THIS FIELD, WILL DEPRIVE
THE CARRIERS OF ANY AGENCY TO WHICH THEY MAY GO TO SECURE A FINAL
SETTLEMENT OF MANY VEXATIOUS LABOR CONTROVERSIES, AND WILL BRING ABOUT
A GENERAL DETERIORATION OF RELATIONS BETWEEN EMPLOYEES AND MANAGEMENT
WHICH WILL NECESSARILY IMPAIR THE PARAMOUNT INTEREST OF THE PUBLIC IN
UNINTERRUPTED TRANSPORTATION. 

WE RESPECTFULLY SUBMIT THAT THESE RESULTS ALREADY EXPERIENCED OR
REASONABLY TO BE ANTICIPATED FROM THE INTERPRETATION WHICH HAS BEEN
GIVEN TO THE RAILWAY LABOR ACT ARE INIMICAL TO THE WHOLE PURPOSE OF THE
STATUTE AND SHOULD NOT BE MAINTAINED." 

"THE DECISION OF THE COURT IN EFFECT OUTLAWS A METHOD WHICH HAS BEEN
SUCCESSFULLY FOLLOWED FOR A QUARTER OF A CENTURY IN THE ADJUSTMENT OF
DISPUTES OF THE KIND UNDER CONSIDERATION.  THOUSANDS OF INDIVIDUAL
CASES HAVE BEEN SETTLED DURING THIS PERIOD AND UP TO THE TIME OF THE
DECISION IN THIS CASE, NO ONE HAD QUESTIONED THE AUTHORITY OF THE
EMPLOYEES' REPRESENTATIVES TO ACT IN THIS CONNECTION.  THE EXISTENCE OF
SUCH AUTHORITY HAS ALWAYS BEEN CONSIDERED AS AN INTEGRAL AND ESSENTIAL
PART OF THE COLLECTIVE BARGAINING PROCESS AS IT HAS DEVELOPED UNDER
FEDERAL REGULATION.  WE HAVE NO HESITANCY IN SAYING TO THE COURT THAT
WE BELIEVE THAT ITS DECISION DENYING THE EXISTENCE OF SUCH AUTHORITY
REDUCES THE POTENCY OF COLLECTIVE BARGAINING AS AN INSTRUMENTALITY OF
PEACE IN THE RAILROAD INDUSTRY TO A LOWER LEVEL THAN THAT PREVAILING IN
1920.  WE FEEL THAT THE COURT SHOULD BE ADVISED THAT SINCE THE
ANNOUNCEMENT OF ITS DECISION THE NATIONAL RAILROAD ADJUSTMENT BOARD HAS
VIRTUALLY CEASED TO FUNCTION....  THIS BRIEF IS FILED WITH THE DEEP
CONVICTION THAT THE WHOLE PROCESS OF THE ORDERLY ADJUSTMENT OF
CONTROVERSIES, WHICH IS THE FRUIT OF RAILROAD LABOR LEGISLATION
OBTAINED AFTER LONG EFFORT ON THE PART OF ALL CONCERNED, IS NOW IN
SERIOUS JEOPARDY.  THE POTENTIALITIES OF THIS CASE WERE NOT FULLY
RECOGNIZED BY US WHEN IT WAS ORIGINALLY BEFORE THE COURT." 

THE BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, THE ORDER OF
RAILWAY CONDUCTORS OF AMERICA, AND SWITCHMEN'S UNION OF NORTH AMERICA
UNITED IN THIS STATEMENT: 

"WE ARE COMPELLED TO CONCLUDE FROM THIS TREATMENT OF THE PROBLEM THAT
THE COURT PROPOSES TO APPLY A COMMON-LAW STANDARD, DESIGNEDLY SUITABLE
TO THE RELATIVELY SIMPLE RELATIONSHIP OF PRINCIPAL AND AGENT, AS THE
TEST OF THE AUTHORITY OF A RAILWAY LABOR ORGANIZATION TO HANDLE AND
SETTLE THE HOST OF GRIEVANCES WHICH MUST BE EXPEDITIOUSLY AND
EFFECTIVELY DISPOSED OF IF THE CONGRESSIONAL ENJOINMENT 'TO AVOID ANY
INTERRUPTION TO COMMERCE OR TO THE OPERATION OF ANY CARRIER ENGAGED
THEREIN' IS TO BE ACCOMPLISHED. 

WE WISH TO RESPECTFULLY SUGGEST TO THE COURT THAT THE ENTERTAINMENT
OF THIS PROPOSED VIEW COULD BE COMMENDED AS REASONABLE ONLY IF THE
PROBLEM UNDER CONSIDERATION WERE WEIGHED WHOLLY DETACHED FROM THE
REALITIES OF ITS ENVIRONMENT.  IF A STRAIT-JACKET OF LEGAL RESTRICTIONS
IS NOT TO SHACKLE THE RAILWAY LABOR ORGANIZATIONS IN THE PERFORMANCE OF
THE SERVICES EXPECTED OF THEM BY THE CONGRESS AND THE COUNTRY AT LARGE
AS OUTLINED IN THE RAILWAY LABOR ACT, THE MIND OF THE COURT MUST BE
ACCURATELY ATTUNED TO THE PRACTICALITIES OF THE PROBLEMS FACED BY THESE
REPRESENTATIVES." 

TO THESE THE CONGRESS OF INDUSTRIAL ORGANIZATIONS ON ITS OWN BEHALF
AND FOR ITS CONSTITUENT UNIONS  FN1  ADDS: 

"THE COURT HOLDS THAT SUCH UNION SETTLEMENTS ARE NOT PERMITTED, THAT
THERE MUST BE SETTLEMENT WITH THE EMPLOYEES INVOLVED.  IT LEAVES OPEN
THE QUESTION WHETHER AN EMPLOYEE SETTLEMENT ALONE IS SUFFICIENT OR
WHETHER A JOINT SETTLEMENT WITH EMPLOYEE AND UNION IS NECESSARY
(SLIPSHEET 20-21).  IT CONCEDES THAT IF EMPLOYEE SETTLEMENTS ARE
PERMITTED, THEN, AS TO MOST GRIEVANCES AT LEAST, THE UNION MUST BE
ALLOWED TO EXPRESS ITS VIEWS (SLIPSHEET 20-21 AND PARTICULARLY NOTE
35).  WE SUBMIT THAT THE ACT REQUIRES UNION SETTLEMENTS, WITH THE RIGHT
ACCORDED TO THE EMPLOYEE TO PRESENT GRIEVANCES BUT NOT TO PARTICIPATE
IN THEIR DISPOSITION. 

THE DISPOSITION OF GRIEVANCES BY EMPLOYEE SETTLEMENTS IS PRECLUDED BY
THE FACT THAT SUCH DISPOSITION, WITHOUT CONSENT OF THE UNION, WHETHER
OF RETROSPECTIVE OR PROSPECTIVE MATTERS, INTRODUCES THE VERY INDIVIDUAL
BARGAINING WHICH CONGRESS INTENDED TO ELIMINATE (SUPRA).  THAT
SETTLEMENT OF GRIEVANCES IS 'BARGAINING' WAS CLEARLY RECOGNIZED BY THE
COURT WHEN IT REFERRED TO THE 'POWER TO BARGAIN CONCERNING GRIEVANCES,
THAT IS, TO CONCLUDE AGREEMENTS FOR THEIR SETTLEMENTS' (SLIPSHEET 14). 
BUT IF THIS 'BARGAINING' IS TO BE CONDUCTED BETWEEN THE EMPLOYER AND
THE EMPLOYEE ALONE, IT WILL BE NO MORE THAN A MOCKERY.  AS THE COURT
ITSELF POINTS OUT (SLIPSHEET 21, NOTE 35), THE 'CARRIER WOULD BE FREE
...  TO BARGAIN WITH EACH EMPLOYEE FOR WHATEVER TERMS ITS ECONOMIC
POWER, PITTED AGAINST HIS OWN, MIGHT INDUCE HIM TO ACCEPT.'" 

"WE EARNESTLY URGE UPON THE COURT  ...  THAT THE COLLECTIVE
BARGAINING PROCESS HAS ALWAYS BEEN VIEWED BY THE PARTICIPANTS THERETO
AS INCLUDING THE SETTLEMENT OF GRIEVANCES AND, MORE PARTICULARLY, THAT
EMPLOYERS AND UNIONS HAVE ALWAYS CONSIDERED THAT THEY HAD THE POWER TO
DISPOSE OF GRIEVANCES ON A LARGE SCALE.  WE CALL TO THE ATTENTION OF
THE COURT THE AGREEMENT INVOLVED IN THIS VERY CASE, REFERRED TO BY THE
COURT IN ITS OPINION (SLIPSHEET 4, NOTE 5), BY WHICH THE UNION AND THE
RAILROAD TRIED TO SETTLE ALL SIMILAR CLAIMS THEN EXISTING.  WE CANNOT
OVERESTIMATE THE SERIOUS CONSEQUENCES OF MAKING SUCH AGREEMENTS
INEFFECTIVE.  THEY ARE COMMONLY MADE WHEREVER COLLECTIVE BARGAINING IS
ESTABLISHED.  IT WILL BE EXTREMELY DISTURBING TO EMPLOYERS AND
EMPLOYEES ALIKE WHEN EMPLOYERS DISCOVER THAT THERE IS NO WAY, SHORT OF
SETTLEMENT WITH EACH EMPLOYEE, WHEREBY PENDING DISPUTES AND THE
POSSIBILITY OF FUTURE LEGAL ACTION CAN BE ELIMINATED." 

SELDOM IF EVER HAVE THE CLAIMS OF POLICY BEEN SO MARSHALLED ON A
SINGLE SIDE OF AN ISSUE REQUIRING THE INTERPRETATION OF A STATUTE
WHICH, AT BEST, IS SUFFICIENTLY AMBIGUOUS TO PERMIT THESE
CONSIDERATIONS OF POLICY TO CARRY THE DAY.  THE DANGER IN "ADHERING" TO
THE ORIGINAL DECISION IS ONLY TOO CLEAR; IT CAN HARDLY BE LESSENED BY
AN EXPLANATION THAT EXTRACTS MEANING FROM THE FIRST OPINION. 

THE RESULTS OF THE OPINION OF LAST TERM, ACTUAL AND POTENTIAL,
THREATENED NOT ONLY THE EFFICACY OF THE RAILWAY LABOR ACT, BUT
GENERALLY UNDERMINED THE BASIS FOR ALL COLLECTIVE BARGAINING IN REGARD
TO GRIEVANCES.  IT IS FAIR TO SAY THAT THE DECISION CREATED HAVOC IN
THE RAILROAD WORLD, FOR A PROPER ADJUSTMENT OF INDUSTRIAL RELATIONS ON
THE RAILROADS, AS THE WHOLE COURSE OF RAILROAD HISTORY SHOWS, IS
ABSOLUTELY DEPENDENT ON APPROPRIATE MACHINERY AND PROCESS OF
ADJUSTMENT.  THE MACHINERY SET IN MOTION BY THE ACT WAS STOPPED BY THE
OPINION.  IMMEDIATELY AFTER THE COURT'S DECISION OF LAST TERM, THE TWO
DIVISIONS OF THE ADJUSTMENT BOARD DEALING WITH 94% OF THE CASES UNDER
NORMAL CIRCUMSTANCES COMPLETELY SHUT DOWN.  AND WHEN THEY WERE
REOPENED, THEY FUNCTIONED AT ONLY A FRACTION OF THEIR NORMAL ACTIVITY. 
THESE BOARDS ARE NOT OPERATING IN A VACUUM.  THEIR FUNCTION IS TO
SETTLE BY PEACEFUL MEANS EMPLOYEE-EMPLOYER DISPUTES THAT WOULD
OTHERWISE BE SETTLED BY A SHOW OF POWER ON EACH SIDE.  THE BROTHERHOODS
POINT TO THE DANGERS CUMULATING IN THE UNADJUSTED GRIEVANCES.  THE
RAILWAY LABOR ACT BECOMES AS INEFFECTIVE AS IT WAS PRIOR TO THE 1934
AMENDMENTS; AND SUCH A RESULT MIGHT WELL HAVE BEEN ANTICIPATED FROM THE
DESTRUCTION OF A SYSTEM THAT HAD BECOME CUSTOMARY. 

THE COURT SAYS THAT IT ADHERES TO ITS PREVIOUS OPINION.  LAST TERM IT
FOUND THAT IT COULD NOT SAY THAT THE RESPONDENTS HAD AUTHORIZED THE
UNION TO SETTLE THEIR GRIEVANCES, AND REMANDED THE CASE FOR JUDICIAL
REDETERMINATION OF THE BOARD'S DECISION.  WHATEVER REQUIREMENTS THE
COURT MEANT TO INDICATE AS SUFFICIENT TO ESTABLISH AUTHORIZATION FROM
MEMBERS OF THE UNION TO THE UNION, THE OPINION SURELY CONVEYED DOUBT
WHETHER THE RESPONDENTS HAD GIVEN AUTHORITY IN A "LEGALLY SUFFICIENT"
WAY, AND ENCOURAGED THE RESPONDENTS' CLAIM THAT THEY HAD NOT AUTHORIZED
THEIR COLLECTIVE AGENT TO SETTLE THEIR GRIEVANCES.  THE COURT NOW SAYS
THAT ON THE RECORD IT MAY BE DIFFICULT FOR RESPONDENTS TO PROVE THAT
THEY DID NOT AUTHORIZE THE UNION TO REPRESENT THEM.  THE DIFFICULTY
BECOMES APPARENT AS THE COURT'S OPINION PROCEEDS.  IT DISCLAIMS THAT
COMMON LAW AGENCY TESTS OF AUTHORITY ARE TO BE DETERMINATIVE,
SUBSTITUTES "CUSTOM AND USAGE," AND PUTS THE BURDEN OF PERSUASION ON
THE RESPONDENTS, HAVING AGAINST THEM THE WEIGHT OF THE BOARD'S
"EXPERTISE," THE PRESUMPTION OF REGULARITY, AND THEIR OWN FAILURE TO
DISAVOW THE PROCEEDINGS BEFORE THE BOARD.  THE HYPOTHETICAL FACTORS
WHICH THE COURT INTIMATES WOULD DEFEAT RESPONDENTS' RIGHT TO SUSTAIN
THIS SUIT ARE THE NORMAL FACTORS IN THESE DISPUTES AND ARE REVEALED BY
THE RECORD IN THIS CASE.  THE WAY IN WHICH THESE GRIEVANCES WERE
HANDLED WAS "THE USUAL MANNER"; THE ADJUSTMENT BOARD EXERCISING ITS
EXPERTNESS DID DETERMINE THAT THE UNION HAD AUTHORITY TO REPRESENT
RESPONDENTS; THE RESPONDENTS DID STAND BY DOING NOTHING WHILE THEIR
CLAIMS WERE PRESENTED TO THE BOARD AND DETERMINED BY IT.  IF THE CUSTOM
OF THE RAILROAD INDUSTRY RATHER THAN THE CONVENTIONAL LAW OF AGENCY IS
TO GOVERN, CLEARLY THE EXPERT, CENTRALIZED BOARD IS THE APPROPRIATE
TRIBUNAL FOR ASCERTAINING WHETHER THE AUTHORIZED BARGAINING AGENCY IS
AUTHORIZED TO REPRESENT THE GRIEVANCES OF ITS MEMBERS BEFORE THE BOARD,
AND NOT THE MULTITUDINOUS COURTS THROUGHOUT THE COUNTRY WITH THEIR
VARYING UNDERSTANDING AND VARYING JUDGMENTS.  THE GLOSS WHICH THE COURT
NOW PUTS ON ITS PREVIOUS OPINION IN EFFECT RECOGNIZES THAT THIS IS SO
BY THE EXTENT TO WHICH IT HOBBLES THE RIGHT TO SECURE THE REVISION OF
THE BOARD'S DETERMINATION WHICH IT ABSTRACTLY BESTOWS.  THEREBY IT
UNDERMINES ANY JUSTIFICATION FOR THE NOTION THAT CONGRESS INTENDED TO
OPEN THE COURTS FOR A REDETERMINATION OF THE ISSUE OF AUTHORIZATION. 
WHEN CONGRESS WAS SO MISERLY IN GRANTING ANY JURISDICTION TO THE COURTS
UNDER THE ACT, IT WOULD BE SURPRISING IF IT HAD AUTHORIZED REVIEW IN A
FIELD WHERE, AS THE COURT'S NEW OPINION MAKES CLEAR, THERE WAS LIKELY
TO BE SO LITTLE DISPUTE.  YET IT IS SUGGESTED THAT RESPONDENTS ARE
ENTITLED TO A JUDICIAL HEARING TO DETERMINE AMONG OTHER THINGS WHETHER
THEY RECEIVED INDIVIDUAL NOTICE OF THE PROCEEDINGS BEFORE THE BOARD. 
BUT THE WHOLE COURSE AND CURRENT OF THE RAILWAY TRADE UNION
RELATIONSHIPS IMPLY THAT THE INTEREST OF THE INDIVIDUAL MEMBER AS TO
ISSUES ARISING UNDER THE COLLECTIVE AGREEMENT IS ENTRUSTED TO HIS
CHOSEN REPRESENTATIVE.  TO REQUIRE NOTICE TO THE PARTICULAR INDIVIDUALS
AFFECTED BY THE SPECIFIC CONTROVERSIES IS TO DISREGARD THE
PRESUPPOSITION OF THE RELATIONSHIP BETWEEN UNION MEMBERS AND THEIR
OFFICIALS AND THE ACTUALITIES OF PRACTICE UPON WHICH THE RAILWAY LABOR
ACT WAS BASED. 

IF THE CONTEXT OF HISTORY INTO WHICH THE RAILWAY LABOR ACT MUST BE
PLACED FOR A PROPER INTERPRETATION REVEALS THAT CONGRESS WAS BENT ON
CREATING A SYSTEM COMPLETE IN ITSELF FOR SECURING PEACEFUL INDUSTRIAL
RELATIONS IN THE RAILROAD WORLD, THIS COURT SHOULD NOT IMPORT INTO THAT
SYSTEM TRADITIONAL ASSUMPTIONS AND RULES DERIVED FROM A SCHEME OF
JUDICIALLY ENFORCEABLE RIGHTS.  THE NEW SYSTEM WAS DEVISED PRECISELY
FOR THE PURPOSE OF REPLACING THE ORDINARY JUDICIAL PROCESSES IN
RESOLVING RAILWAY LABOR CONTROVERSIES, EXCEPT IN THE VERY LIMITED
INSTANCES WHERE CONGRESS SPECIFICALLY RETAINED JUDICIAL PARTICIPATION. 
THE WHOLE STATUTE REVEALS THE RESTRICTED OPPORTUNITIES FOR RESORT TO
THE COURTS WHICH CONGRESSIONAL POLICY DEEMED IT APPROPRIATE TO RESERVE,
EVEN THOUGH SUCH RESTRICTIONS WERE NOT FORMULATED WITH EXQUISITE OR
EXPLICIT PRECISION.  BY SECS. 3 FIRST (P) AND 9, 44 STAT. 577, 578,
585, 48 STAT. 1189, 45 U.S.C. SECS. 153 AND 159, CONGRESS GAVE COURTS
JURISDICTION, THUS SHOWING THAT THE SUBJECT OF JUDICIAL REMEDIES WAS
PRESENT IN THE MIND OF CONGRESS AND INDICATING THE STRICTLY DEFINED
LIMITS WITHIN WHICH THEY WERE AVAILABLE.  IN SHORT, THE POLICY OF THE
LEGISLATION, DERIVED FROM A LONG AND PAINFUL EXPERIENCE, IS TO KEEP
LABOR CONTROVERSIES ON THE RAILROADS OUT OF THE COURTS EXCEPT IN THE
FEW SPECIFICALLY DEFINED SITUATIONS WHERE CONGRESS HAS PUT THEM INTO
THE COURTS.  CONGRESS HAS MADE A DEPARTURE IN THE RAILWAY LABOR ACT
FROM THE NORMAL AVAILABILITY OF JUDICIAL REMEDIES, AND WE OUGHT NOT TO
READ THE NEW LAW THROUGH THE SPECTACLES OF THE OLD REMEDIES. 

A COURT WHICH HAS HELD THAT UNDER THE RAILWAY LABOR ACT A BOARD'S
INTERPRETATION OF ITS AUTHORITY GIVEN BY A PROVISION OF THE ACT IS
FINAL AND NOT SUBJECT TO JUDICIAL REVIEW DENIES THAT ANOTHER BOARD
UNDER THE ACT MAY DETERMINE FINALLY WHETHER THOSE WHO SUBMIT
CONTROVERSIES ON BEHALF OF THEIR MEMBERS HAVE AUTHORITY TO MAKE SUCH
SUBMISSION SO THAT THE BOARD MAY SETTLE SUCH DISPUTES, ALTHOUGH THE
DETERMINATION OF THE CONTROVERSY ITSELF IS NOT REVIEWABLE UNLESS IT
INVOLVES A MONEY AWARD.  SEE SWITCHMEN'S UNION V. NATIONAL MEDIATION
BOARD, 320 U.S. 297.  RAILWAY LABOR ACT, SEC. 9 THIRD, 44 STAT. 577,
585, 45 U.S.C. SEC. 159.  THE ANSWER TO SUCH A MUTILATING CONSTRUCTION
OF THE RAILWAY LABOR ACT WAS GIVEN BY THIS COURT IN GENERAL COMMITTEE
OF ADJUSTMENT V. MISSOURI-KANSAS-TEXAS R. CO., 320 U.S. 323, 333:  "THE
INFERENCE IS STRONG THAT CONGRESS INTENDED TO GO NO FURTHER IN ITS USE
OF THE PROCESSES OF ADJUDICATION AND LITIGATION THAN THE EXPRESS
PROVISIONS OF THE ACT INDICATE." 

FN1  UNITED STEELWORKERS OF AMERICA, UNITED RAILROAD WORKERS OF
AMERICA, AMALGAMATED CLOTHING WORKERS OF AMERICA, UNITED PACKINGHOUSE
WORKERS OF AMERICA, TEXTILE WORKERS UNION OF AMERICA, INTERNATIONAL
LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, UNITED OFFICE & PROFESSIONAL
WORKERS OF AMERICA, AMERICAN COMMUNICATIONS ASSOCIATION, AMERICAN
NEWSPAPER GUILD, INDUSTRIAL UNION MARINE & SHIPBUILDING WORKERS OF
AMERICA, UNITED FARM EQUIPMENT & METAL WORKERS OF AMERICA,
INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, NATIONAL MARITIME
UNION OF AMERICA, UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF
AMERICA, UNITED AUTOMOBILE, AIRCRAFT, AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, TRANSPORT WORKERS UNION OF AMERICA, UNITED FURNITURE WORKERS
OF AMERICA, UNITED TRANSPORT SERVICE EMPLOYEES OF AMERICA, STATE,
COUNTY & MUNICIPAL WORKERS OF AMERICA, FUR & LEATHER WORKERS UNION. 
..END :










COMMISSIONER V. FISHER, 327 U.S. 512 


NO. 452.  ARGUED FEBRUARY 27, 1946.  - DECIDED MARCH 11, 1946.  - 150
F.2D 198, REVERSED. 


1.  IN COMPUTING UNDER SEC. 115(A) OF THE REVENUE ACT OF 1934 THE
AMOUNT OF "EARNINGS OR PROFITS" DISTRIBUTED BY A FAMILY INVESTMENT
CORPORATION WITH RESPECT TO SECURITIES WHICH IT HAD ACQUIRED BY TAX
FREE EXCHANGES FOR ITS OWN STOCK, THE BASIS IS THE TRANSFEROR'S COST
RATHER THAN THE VALUE OF THE SECURITIES AT THE TIME OF THEIR
ACQUISITION BY THE CORPORATION.  COMMISSIONER V. WHEELER, 324 U.S.
542.  P. 514. 

2.  WHERE A DISTRIBUTION OF ASSETS BY A FAMILY INVESTMENT CORPORATION
TO ONE OF ITS STOCKHOLDERS IN 1934 IMPOSED A TAX LIABILITY ON HIM UNDER
THE REVENUE ACT OF 1934, AS INTERPRETED IN COMMISSIONER V. WHEELER, 324
U.S. 542, THE TAXPAYER (WHOSE LIABILITY WAS PENDING BEFORE THE TAX
COURT ON SEPTEMBER 20, 1940) WAS NOT EXEMPTED FROM LIABILITY BY THE
PROVISO OF SEC. 501(C) OF THE SECOND REVENUE ACT OF 1940 TO THE EFFECT
THAT NOTHING THEREIN "SHALL AFFECT THE TAX LIABILITY OF ANY TAXPAYER
FOR ANY YEAR WHICH, ON SEPTEMBER 20, 1940, WAS PENDING BEFORE  ...  THE
BOARD OF TAX APPEALS, OR ANY COURT."  P. 514. 

(A)  THAT PROVISO DOES NOT GRANT A SPECIAL TAX EXEMPTION TO TAXPAYERS
WHO HAPPENED TO HAVE TAX LITIGATION PENDING IN SEPTEMBER 1940.  P.
514. 

(B)  IT MEANS THAT THE ENACTMENT OF THE 1940 ACT WAS NOT TO AFFECT
THE TAX LIABILITY OF THOSE WHO HAD CASES PENDING BEFORE THE BOARD OR
COURTS, WHATEVER THAT TAX LIABILITY MAY HAVE BEEN UNDER THE EARLIER
REVENUE LAWS.  P. 515. 

COMMISSIONER OF INTERNAL REVENUE.  V. FISHER ET AL., EXECUTORS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE COMMISSIONER OF INTERNAL REVENUE ASSESSED AN INCOME TAX
DEFICIENCY AGAINST RESPONDENTS.  THE TAX COURT OVERRULED THE
COMMISSIONER.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  150 F.2D 198. 
THIS COURT GRANTED CERTIORARI.  326 U.S. 710.  REVERSED, P. 515. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1934 THE SENIOR INVESTMENT CORPORATION, ORGANIZED IN 1929 BY ONE
FISHER AND HIS WIFE FOR FAMILY INVESTMENT PURPOSES, DISTRIBUTED TO
FISHER 43,300 SHARES OF GENERAL MOTORS STOCK VALUED AT $1,723,881.25. 
FISHER AND HIS WIFE MADE A JOINT TAX RETURN BUT DID NOT REPORT THIS
AMOUNT AS INCOME.  THE TAXPAYERS CONTENDED THAT SINCE THE SENIOR
INVESTMENT CORPORATION SHOWED A BOOK DEFICIT FOR 1934, THE DISTRIBUTION
IN QUESTION WAS A "CAPITAL DISTRIBUTION" AND NOT A CORPORATE DEVIDEND
FROM "EARNINGS OR PROFITS," WHICH LATTER WAS THE TYPE OF DISTRIBUTION
TAXABLE UNDER SEC. 115(A) OF THE THEN CONTROLLING TAX LAW.  48 STAT.
680, 711.  THE COMMISSIONER DECIDED THAT THE FOLLOWING CIRCUMSTANCES
JUSTIFIED A FINDING THAT THE DISTRIBUTION WAS TAXABLE AS A DIVIDEND
FROM "EARNINGS OR PROFITS":  WHEN THE SENIOR INVESTMENT CORPORATION WAS
ORGANIZED FISHER AND HIS WIFE PAID FOR THEIR SHARES OF STOCK WITH
SECURITIES WHICH HAD COST THEM $14,500,000 BUT HAD BY THE DATE OF
ORGANIZATION ACQUIRED A MARKET VALUE OF $88,000,000.  TO SHOW THAT THE
CORPORATION HAD A DEFICIT AND THAT CONSEQUENTLY THE DISTRIBUTION OF
GENERAL MOTORS STOCK WAS NOT FROM "EARNINGS OR PROFITS," THE TAXPAYERS
USED THE CORPORATION'S COMPUTATION BASED ON THE $88,000,000 RATHER THAN
THE $14,500,000 FIGURE.  THE COMMISSIONER DECIDED THAT THE $14,500,000
COST TO FISHER AND HIS WIFE OF THE SECURITIES THEY TRANSFERRED TO THE
CORPORATION IN EXCHANGE FOR SHARES OF ITS STOCK WAS THE PROPER BASE FOR
ASCERTAINING WHETHER THE CORPORATION COULD MAKE A DISTRIBUTION FROM
PROFITS; THAT THE USE OF THAT FIGURE WOULD SHOW A SURPLUS IN 1934; AND
THAT THE DISTRIBUTION OF THE GENERAL MOTORS STOCK WAS THEREFORE A
TAXABLE DIVIDEND FROM "EARNINGS OR PROFITS."  ON REVIEW THE TAX COURT
FOLLOWING ITS PRIOR HOLDINGS REJECTED THE COMMISSIONER'S ARGUMENT AND
DECIDED FOR THE RESPONDENTS.  THE CIRCUIT COURT OF APPEALS AFFIRMED. 
150 F.2D 198. 

SINCE SEC. 112 OF THE REVENUE ACT OF 1934 DID NOT TAX THE GAIN
RESULTING FROM TRANSFERS OF PROPERTY TO A CORPORATION IN EXCHANGE FOR
STOCK IN THAT CORPORATION, IT IS OBVIOUS THAT REJECTION OF THE
COMMISSIONER'S CONTENTION WOULD RESULT IN PERMITTING THE SEC. 112
EXEMPTION TO BE USED AS A DEVICE FOR EVADING TAXES CONGRESS INTENDED TO
IMPOSE ON MANY GAINS ACTUALLY REALIZED FROM SALES OF PROPERTY.  BUT WE
UPHELD THE VIEWS URGED BY THE COMMISSIONER HERE, IN COMMISSIONER V.
WHEELER, 324 U.S. 542, DECIDED ON THE SAME DAY THAT THE CIRCUIT COURT
OF APPEALS HANDED DOWN ITS DECISION IN THIS CASE.  IN THAT CASE WE HELD
THAT IN THE SECOND REVENUE ACT OF 1940, 54 STAT. 974, 1004-1005,
CONGRESS CLARIFIED ITS ORIGINAL PURPOSE IN ENACTING THE 1934 ACT AND
OTHERS TO REQUIRE THAT CORPORATE EARNINGS BE COMPUTED ON A BASIS OF
COST OF THE PROPERTY TO TRANSFERORS LIKE FISHER.  THAT DECISION WOULD
HAVE CONTROLLED THE DISPOSITION OF THIS CASE WERE IT NOT FOR THE FACT
THAT ON REHEARING THE CIRCUIT COURT OF APPEALS HELD THAT A PROVISO IN
THE SECOND REVENUE ACT OF 1940 EXCEPTED TAXPAYERS LIKE FISHER FROM
LIABILITY UNDER THE REVENUE ACT OF 1934.  THAT PROVISO STATED THAT THE
1940 ACT SHOULD NOT "AFFECT THE TAX LIABILITY OF ANY TAXPAYER FOR ANY
YEAR WHICH, ON SEPTEMBER 20, 1940, WAS PENDING BEFORE, OR WAS
THERETOFORE DETERMINED BY, THE BOARD OF TAX APPEALS, OR ANY COURT OF
THE UNITED STATES."  THIS CASE WAS PENDING BEFORE THE TAX COURT ON
SEPTEMBER 20, 1940, AND RESPONDENTS HERE CONTEND THAT THE PROVISO WAS
INTENDED TO EXEMPT FISHER FROM THE TAX LIABILITY TO WHICH HE WOULD
OTHERWISE BE SUBJECT. 

IN OTHER WORDS, RESPONDENTS ASSERT THAT CONGRESS INTENDED BY THE
PROVISO TO PICK OUT A SMALL GROUP OF TAXPAYERS AND AWARD THEM SPECIAL
TAX EXEMPTIONS WHICH THE WHOLE ACT WAS DESIGNED TO DENY ALL OTHER
TAXPAYERS WHO DID NOT HAPPEN TO HAVE TAX LITIGATION PENDING IN
SEPTEMBER 1940.  THE PROVISO INDICATES NO SUCH PURPOSE.  THE PROVISO
MEANS WHAT IT SAYS, THAT THE ENACTMENT OF THE 1940 ACT WAS NOT TO
AFFECT THE TAX LIABILITY OF THOSE WHO HAD CASES BEFORE THE BOARD OR
COURTS, WHATEVER THAT TAX LIABILITY UNDER THE EARLIER REVENUE LAWS. 
UNDER THOSE EARLIER LAWS AS INTERPRETED BY US IN THE WHEELER CASE, THE
DISTRIBUTION OF GENERAL MOTORS STOCK TO FISHER IMPOSED ON HIM A TAX
LIABILITY WHICH REMAINED UNAFFECTED BY THE ENACTMENT OF THE 1940
STATUTE.  REVERSED. 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :





U.S. V. PIERCE AUTO LINES, 327 U.S. 515 


NO. 74.  ARGUED JANUARY 28, 1946.  - DECIDED MARCH 11, 1946.  - 57
F.SUPP.  192, REVERSED. 


1.  EACH OF TWO MOTOR CARRIERS MADE APPLICATION TO THE INTERSTATE
COMMERCE COMMISSION UNDER PART II OF THE INTERSTATE COMMERCE ACT FOR A
PERMIT TO OPERATE BETWEEN POINTS A AND C. ONE WAS THEN OPERATING
BETWEEN A AND B; THE OTHER BETWEEN B AND C; AND THEY OPERATED JOINT
SERVICE BETWEEN A AND C BY FREIGHT INTERCHANGE.  EACH APPLICANT OPPOSED
THE OTHER'S APPLICATION, AND COMPETING CARRIERS OPPOSED BOTH.  THE
APPLICATIONS WERE HEARD SEPARATELY BY DIFFERENT JOINT BOARDS BUT WERE
DEALT WITH BY THE COMMISSION IN A SINGLE REPORT.  HELD THAT AN ORDER OF
THE COMMISSION GRANTING BOTH APPLICATIONS WAS VALID.  PP. 517, 523. 

2.  NEITHER THE FACT THAT THE COMMISSION DEALT WITH BOTH APPLICATIONS
IN ONE REPORT NOR THE FACT THAT THE COMMISSION GRANTED BOTH
APPLICATIONS INVALIDATED ITS ORDER.  P. 523. 

3.  THE COMMISSION'S DISPOSITION OF THE APPLICATIONS DID NOT INJECT
INTO THE PROCEEDINGS AS A "NEW ISSUE" THE QUESTION WHETHER BOTH
APPLICATIONS SHOULD BE GRANTED.  P. 526. 

4.  THAT THE COMMISSION DID NOT DETERMINE EACH CASE EXCLUSIVELY ON
THE RECORD THEREIN BUT CONSIDERED THE EVIDENCE IN BOTH PROCEEDINGS DOES
NOT WARRANT INVALIDATING ITS ORDER, IN THE ABSENCE OF ANY SHOWING OF
SPECIFIC PREJUDICE.  P. 528. 

5.  WHERE THE COMMISSION'S REPORT CONTAINS ALL THE REQUIRED FINDINGS,
IT IS NOT OBLIGED TO ANNOTATE TO EACH FINDING THE EVIDENCE SUPPORTING
IT.  P. 529. 

6.  THE FACT THAT AN ADMINISTRATIVE AGENCY HAS CONSIDERED MATTERS
DEHORS THE RECORD DOES NOT INVALIDATE ITS ACTION UNLESS SUBSTANTIAL
PREJUDICE IS SHOWN.  P. 530. 

7.  THE ORDER OF THE COMMISSION GRANTING BOTH APPLICATIONS WAS
SUPPORTED BY THE FINDINGS AND THE EVIDENCE.  P. 530. 

8.  THE COMMISSION'S ULTIMATE FINDING AS TO THE FITNESS AND ABILITY
OF ONE OF THE APPLICANTS IN THIS CASE WAS SUPPORTED BY A SUFFICIENT
BASIC FINDING AND BY EVIDENCE.  P. 533. 

9.  REHEARINGS BEFORE ADMINISTRATIVE BODIES ARE WITHIN THEIR OWN
DISCRETION, AND ONLY THE CLEAREST ABUSE, NOT SHOWN UPON THE RECORD IN
THIS CASE, WILL SUSTAIN AN EXCEPTION TO THE RULE.  ATCHISON, T. &
S.F.R. CO. V. UNITED STATES, 284 U.S. 248, DISTINGUISHED.  P. 534. 

10.  THE INTERSTATE COMMERCE COMMISSION AND NOT THE REVIEWING COURT
IS THE ARBITER OF THE PARAMOUNT PUBLIC INTEREST.  THE JUDICIAL FUNCTION
IS LIMITED TO ASCERTAINING WHETHER THE ORDER HAS SUPPORT IN THE LAW AND
IN THE RECORD.  P. 535. 

UNITED STATES ET AL. V. PIERCE AUTO FREIGHT LINES, INC. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF OREGON. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, WHICH
SUSPENDED AN ORDER OF THE INTERSTATE COMMERCE COMMISSION AND REMANDED
THE CAUSE TO THE COMMISSION FOR A REHEARING.  57 F.SUPP.  192. 
REVERSED, P. 536. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE VALIDITY OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION IS IN
QUESTION.  THE ORDER GRANTED TO APPELLANTS, CONSOLIDATED FREIGHTWAYS,
INC., AND OREGON-NEVADA-CALIFORNIA FAST FREIGHT, INC., CERTIFICATES OF
PUBLIC CONVENIENCE AND NECESSITY AUTHORIZING EXTENSIONS OF THEIR
OPERATIONS AS MOTOR CARRIERS.  APPELLEES, COMPETING CARRIERS, SOME OF
WHOM ARE RAILWAY AFFILIATES, WERE PROTESTANTS IN THE PROCEEDINGS BEFORE
THE COMMISSION.  THEY SUCCESSFULLY ATTACKED THE ORDER IN A SPECIALLY
CONSTITUTED DISTRICT COURT, ON GROUNDS QUESTIONING THE SUFFICIENCY OF
THE FINDINGS AND THE EVIDENCE, AS WELL AS THE PROPRIETY AND FAIRNESS OF
THE COMMISSION'S PROCEDURE.  THE DISTRICT COURT'S DECREE, 57 F.SUPP. 
192, "SUSPENDED" THE ORDER AND REMANDED THE CAUSE TO THE COMMISSION FOR
REHEARING ALTHOUGH A STAY PENDING APPEAL WAS DENIED. 

THE SHORTENED STATEMENT OF THE MAJOR THING IN CONTROVERSY IS WHETHER
THE APPELLANTS, CONSOLIDATED AND O.N.C., PROPERLY WERE ALLOWED BY THE
COMMISSION TO SUBSTITUTE WHOLLY INDEPENDENT AND COMPETING THROUGH
SERVICES BETWEEN PORTLAND, OREGON, AND SAN FRANCISCO, CALIFORNIA, FOR
THE SERVICE WHICH THEY JOINTLY RENDERED BETWEEN THOSE CITIES, PRIOR TO
THE FILING OF THESE APPLICATIONS, BY INTERCHANGING FREIGHT AT
INTERMEDIATE POINTS.  THE PROTESTING APPELLEES WERE CARRIERS COMPETING
WITH THE JOINT SERVICE OF CONSOLIDATED AND O.N.C. AND WILL BE
COMPETITORS OF EACH, AS THOSE COMPANIES WILL BE WITH EACH OTHER, IF THE
COMMISSION'S ORDER IS SUSTAINED.  THIS FACT IS THE SOURCE OF THE
CONTROVERSY AND IS IMPORTANT TO BEAR IN MIND FOR FULL UNDERSTANDING OF
THE DETAILED FACTS AND ISSUES AS WELL AS OF WHAT IS ULTIMATELY AT
STAKE.  ALTHOUGH EACH APPELLANT ORIGINALLY SOUGHT EXCLUSIVE AUTHORITY
TO CONDUCT THE PROPOSED THROUGH OPERATION IN SUBSTITUTION FOR THE
FORMER JOINT SERVICE, AND THUS OPPOSED THE OTHER'S APPLICATION, BOTH
NOW SEEK TO SUSTAIN THE COMMISSION'S ORDER, AS OF COURSE DOES THE
COMMISSION ITSELF. 

AT THE TIME OF CONSOLIDATED'S APPLICATION IN DECEMBER, 1939, IT
OPERATED VARIOUS ROUTES IN THE NORTHWEST, SOME EXTENDING EASTWARD FROM
THE PORTLAND AND SEATTLE AREAS, IN ADDITION TO THE JOINT SERVICE BY
INTERCHANGE WITH O.N.C. SOUTHWARD FROM PORTLAND TO SAN FRANCISCO.  FN1
TWO OF THESE ROUTES, COMPRISING PART OF THE LATTER SERVICE, EXTENDED
FROM PORTLAND SOUTHERLY TO MEDFORD AND KLAMATH FALLS, BOTH OF WHICH LIE
JUST NORTH OF THE OREGON-CALIFORNIA BOUNDARY AND WERE POINTS OF
INTERCHANGE WITH O.N.C.  FN2  IN SO FAR AS IT IS NOW PERTINENT,
CONSOLIDATED'S APPLICATION SOUGHT PERMISSION TO EXTEND ITS OPERATIONS
FROM MEDFORD AND KLAMATH FALLS SOUTHWARD TO SAN FRANCISCO, FN3  IN
OTHER WORDS, OVER THE PORTION OF THE ROUTE PREVIOUSLY USED IN THE JOINT
SERVICE FOR O.N.C.'S OPERATIONS. 

CONVERSELY, AT THE TIME OF O.N.C.'S APPLICATION IN JANUARY, 1940, IT
WAS OPERATING FROM SAN FRANCISCO TO MEDFORD AND KLAMATH FALLS.  FN4  IT
SOUGHT TO EXTEND ITS OPERATIONS FROM MEDFORD TO PORTLAND AND, AS AN
ALTERNATIVE SLIGHTLY LONGER ROUTE, FROM KLAMATH FALLS TO PORTLAND
THROUGH GOSHEN, OREGON.  FN5 

THUS, IN EFFECT, CONSOLIDATED AND O.N.C. EACH SOUGHT TO CONDUCT
OPERATIONS INDEPENDENTLY THROUGHOUT THE ENTIRE DISTANCE BETWEEN
PORTLAND AND SAN FRANCISCO.  FN6  THE OCCASION FOR THE SEPARATE
APPLICATIONS WAS O.N.C.'S REFUSAL TO JOIN AN ASSOCIATION OF CONNECTING
CARRIERS WHICH CONSOLIDATED WAS SPONSORING.  FN7 

THE APPLICATIONS WERE HEARD SEPARATELY, AS THE STATUTE REQUIRES,
BEFORE DIFFERENT JOINT BOARDS.  FN8  HOWEVER, BECAUSE THEY WERE SO
CLOSELY RELATED IN THEIR COMMON FEATURES, THE HEARINGS WERE HELD AT THE
SAME PLACES AND ONE APPLICATION WAS HEARD IMMEDIATELY AFTER THE OTHER. 
EACH APPLICANT INTERVENED IN THE PROCEEDING ON THE OTHER'S APPLICATION,
AND VARIOUS PARTIES, INCLUDING THE APPELLEES,  FN9  APPEARED IN
OPPOSITION IN BOTH PROCEEDINGS.  THE PARTIES STIPULATED THAT MUCH OF
THE EVIDENCE PRESENTED IN THE O.N.C. HEARING SHOULD BE INTRODUCED BY
REFERENCE INTO THE CONSOLIDATED RECORD.  THIS INCLUDED ALL OF THE
APPELLEES' AFFIRMATIVE EVIDENCE IN OPPOSITION TO THE TWO APPLICATIONS. 
THE HEARINGS THUS WERE SUBSTANTIALLY COORDINATED, THOUGH NOT
TECHNICALLY CONSOLIDATED, FOR THE COMMON FEATURES OF THE APPLICATIONS. 

AS NEITHER JOINT BOARD COULD AGREE UPON THE RECOMMENDATIONS TO BE
MADE, BOTH MATTERS WERE REFERRED TO AN EXAMINER.  FN10  IN SEPARATE
REPORTS HE RECOMMENDED THE DENIAL OF BOTH APPLICATIONS.  DIVISION 5,
WITH ONE COMMISSIONER DISSENTING, DEALT WITH BOTH IN A SINGLE REPORT. 
IT REVERSED THE EXAMINER IN BOTH CASES AND ORDERED THAT EACH
APPLICATION BE GRANTED.  FN11 APPELLEES' PETITION FOR REHEARING WAS
DENIED.  THEY THEREUPON BROUGHT THIS SUIT IN THE DISTRICT COURT.  FN12 

THE FINDINGS OF FACT AND THE COURT'S OPINION, 57 F.SUPP.  192,
DISCLOSE THAT IT HELD THE COMMISSION'S ORDER INVALID ON SEVERAL
GROUNDS.  ONE WAS THAT "THE COMMISSION CONSIDERED THE SEPARATE RECORDS
AS THOUGH THE CASE WAS A CONSOLIDATED ONE.  EVIDENCE WHICH APPEARED
ONLY IN ONE RECORD WAS USED BY THE COMMISSION TO SUPPORT GENERAL
FINDINGS IN THE REPORT CONCERNING BOTH CONSOLIDATED AND O.N.C. IN EACH
PROCEEDING EMBRACED WITHIN THE REPORT AND THE COMMISSION'S ORDER,
EVIDENCE NOT OFFERED OR RECEIVED IN SUCH PROCEEDING AND NOT A PART OF
THE RECORD THEREIN WAS DRAWN UPON AND CONSIDERED BY THE COMMISSION." 
THE COURT ALSO FOUND THAT THERE WAS NO EVIDENCE IN EITHER RECORD TO
SUPPORT THE COMMISSION'S FINDING THAT "THE PRESENT AND FUTURE PUBLIC
CONVENIENCE AND NECESSITY REQUIRE BOTH THE OPERATIONS" BY CONSOLIDATED
AND THOSE BY O.N.C.  AND IT FURTHER FOUND THAT AT NO TIME IN THE
PROCEEDING HAD THERE BEEN NOTICE TO THE PARTIES, THE WITNESSES, OR THE
GENERAL PUBLIC THAT BOTH APPLICATIONS MIGHT BE GRANTED; THAT INDEED
"THE WHOLE BASIS OF THE ORIGINAL PROCEEDINGS BEFORE THE JOINT BOARDS
WAS THE QUESTION OF WHETHER ANY THROUGH-LINE OPERATION BETWEEN SAN
FRANCISCO AND PORTLAND SHOULD BE ALLOWED AND, IF SO, WHICH ONE OF THE
TWO SEPARATE APPLICATIONS"; AND THAT "NO OPPORTUNITY WAS GIVEN TO
PLAINTIFFS TO MAINTAIN THEIR RIGHTS OR TO PRESENT APPROPRIATE PROTESTS
AND DEFENSES TO THE INSTITUTION OF TWO COMPETING THROUGH-LINE
OPERATIONS BETWEEN SAN FRANCISCO AND PORTLAND."  FINALLY THE COURT HELD
THAT IN GRANTING BOTH APPLICATIONS THE COMMISSION HAD NOT CONSIDERED
THE PUBLIC INTEREST AND SUGGESTED THAT ITS DENIAL OF THE PETITION FOR
REHEARING WAS IMPROPER.  FN13 

FOR ALL THESE SUPPOSED ERRORS THE DISTRICT COURT SUSPENDED THE
COMMISSION'S ORDER AND REMANDED THE CAUSE "FOR REHEARING."  IN DOING SO
IT SAID:  "THIS ACTION WILL BE TAKEN IN ORDER THAT ALL PARTIES MAY BE
PLACED ON NOTICE AS TO WHAT TYPE HEARING WILL BE HELD, WHETHER JOINT OR
SEVERAL, AND IN ORDER THAT APPROPRIATE FINDINGS BE MADE AS TO THE
PUBLIC CONVENIENCE AND NECESSITY WHICH REQUIRES THE AUTHORIZATION OF
TWO NEW THROUGH-LINES IN COMPETITION WITH EACH OTHER AND IN COMPETITION
WITH THE OTHER FACILITIES, AND ALSO AS TO THE ABILITY OF CONSOLIDATED
TO INITIATE AND MAINTAIN ONE OF SUCH LINES IN VIEW OF PRESENT
CONDITIONS."  57 F.SUPP.  AT 198. 

OBVIOUSLY THE COURT'S OBJECTION WAS NOT TO THE MANNER IN WHICH THE
PROCEEDINGS WERE CONDUCTED PRIOR TO THE TIME WHEN THE HEARINGS ENDED
AND THE COMMISSION TOOK THE CASES UNDER CONSIDERATION.  UP TO THIS
POINT NO FAULT IS FOUND WITH WHAT WAS DONE.  THE DIFFICULTY LAY
ALTOGETHER, IN THE COURT'S VIEW, WITH THE WAY IN WHICH IT THOUGHT THE
COMMISSION HAD CONSIDERED THE CASES AND REACHED ITS CONCLUSIONS.  AND
THIS AROSE ENTIRELY FROM THE FACT THAT THE COMMISSION DISPOSED OF THEM
IN A SINGLE REPORT, RATHER THAN IN SEPARATE ONES FOR EACH CASE; AND
FROM THE FURTHER FACT THAT IT CONCLUDED THAT BOTH APPLICATIONS SHOULD
BE GRANTED RATHER THAN THAT BOTH SHOULD BE DENIED OR ONE DENIED AND ONE
GRANTED. 

WE ARE NOT INFORMED, OF COURSE, WHETHER THE COURT WOULD HAVE REACHED
THE SAME RESULT IF THE COMMISSION HAD WRITTEN SEPARATE REPORTS IN EACH
CASE, ARRIVING AT THE SAME CONCLUSIONS, ALTHOUGH IT SEEMS SUGGESTED
THAT ANY OF THE OTHER POSSIBLE RESULTS WOULD HAVE BEEN IMPECCABLE,
WHETHER STATED IN SEPARATE REPORTS OR A SINGLE ONE.  OBVIOUSLY IT WAS
NO SUFFICIENT GROUND FOR SUSPENDING THE COMMISSION'S ORDER THAT IT
CHOSE TO WRITE ONE REPORT RATHER THAN TWO, ESPECIALLY IN MATTERS AS
CLOSELY RELATED AS THESE, IF THE SINGLE REPORT TOGETHER WITH THE
FINDINGS AND THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE ACTION TAKEN IN
EACH CASE.  IT IS NOT UNCOMMON JUDICIAL PRACTICE TO FOLLOW THIS
COURSE. 

NOR, WITH THOSE CONDITIONS SATISFIED, COULD THE MERE FACT THAT THE
COMMISSION CONCLUDED TO GRANT RATHER THAN TO DENY BOTH APPLICATIONS, OR
TO GRANT ONE AND DENY THE OTHER, INVALIDATE ITS JUDGMENT.  FOR EACH
APPLICATION WHEN IT WAS FILED SOUGHT TO CONDUCT THE EXTENDED OPERATION
WHICH IT SPECIFIED; FN14  NOTHING IN EITHER FORECLOSED THE POSSIBILITY
THAT BOTH MIGHT BE GRANTED, ALTHOUGH FOR OBVIOUS REASONS EACH APPLICANT
OPPOSED THE GRANTING OF THE OTHER'S EXTENSION; AND FROM THE BEGINNING
IT WAS AS MUCH A POSSIBLE OUTCOME THAT BOTH APPLICATIONS WOULD BE
GRANTED AS THAT BOTH WOULD BE DENIED OR ONE BE GRANTED AND ONE DENIED. 
IF THEREFORE THE COMMISSION HAD WRITTEN SEPARATE REPORTS IN EACH CASE,
REACHING THE SAME RESULT, IT WOULD HAVE BEEN SQUARELY WITHIN THE ISSUES
AND WITHIN THE OUTCOMES COMPREHENDED FROM THE BEGINNING; AND THE ONLY
QUESTIONS FOR JUDICIAL CONSIDERATION, ABSENT SOME PROCEDURAL DEVIATION
NOT NOW PRESENTED, WOULD HAVE BEEN THE SUFFICIENCY OF THE FINDINGS AND
THE EVIDENCE TO SUSTAIN ITS ACTION IN EACH CASE.  WE THINK THOSE ARE
THE ONLY QUESTIONS OF ANY SUBSTANCE ARISING UPON THIS APPEAL. 

THE DISTRICT COURT, HOWEVER, REGARDED THE COMMISSION'S FAILURE TO
WRITE SEPARATE REPORTS AS INDICATING THAT IT DID NOT CONSIDER EACH CASE
SEPARATELY AND EXCLUSIVELY ON ITS OWN RECORD, BUT LOOKED TO THE
EVIDENCE IN BOTH IN FORMING ITS JUDGMENT.  THIS "APPROACH" THE COURT
THOUGHT WRONG, NOT ONLY AS SHOWING THAT THE COMMISSION CONSIDERED
EVIDENCE IN EACH CASE WHICH IT HAD NO RIGHT TO TAKE INTO ACCOUNT, BUT
ALSO AS INJECTING A NEW AND IMPORTANT ISSUE IN BOTH PROCEEDINGS NOT
PREVIOUSLY REGARDED BY THE PARTIES AS COMPREHENDED WITHIN THE
APPLICATIONS AND THE HEARINGS.  THE "NEW ISSUE" THOUGHT TO BE THUS
INJECTED WAS THE POSSIBILITY THAT BOTH APPLICATIONS MIGHT BE GRANTED. 
FROM THIS BASIC IDEA OTHER ERRORS WERE PYRAMIDED, AMONG THEM THAT THE
PROTESTING APPELLEES HAD BEEN GIVEN NO NOTICE OF THE KIND OF PROCEEDING
WHICH WOULD BE HELD AND HAD BEEN DEPRIVED OF ANY OPPORTUNITY TO PRESENT
PROPER PROTESTS AND EVIDENCE RELATING TO THE ALLEGEDLY NEWLY INJECTED
ISSUE. 

THE CASE HAS TAKEN LONGER TO STATE THAN THE MERITS SHOULD REQUIRE FOR
ITS DISPOSITION.  APPELLEES PLANT THEMSELVES HERE SQUARELY ON THE
DISTRICT COURT'S OBJECTIONS TO THE COMMISSION'S "APPROACH" AND
PROCEDURE.  TWO PRINCIPAL QUESTIONS THUS ARE PRESENTED:  (1) WAS
EVIDENCE IMPROPERLY CONSIDERED BY THE COMMISSION, SO AS TO REQUIRE
REVERSAL OF ITS ORDER; AND (2) WERE NEW ISSUES INJECTED BY ITS ACTION
IN DISPOSING OF THE CASES WITH A SINGLE REPORT?  OTHER ISSUES MORE OR
LESS RELATED MAY BE SHORTLY DISPOSED OF. 

WE PUT TO ONE SIDE, IN THE FIRST PLACE, THE IDEA THAT THE COMMISSION,
BY THE MANNER IN WHICH IT DISPOSED OF THE CAUSES, INJECTED AS A "NEW
ISSUE" THE QUESTION WHETHER BOTH APPLICATIONS MIGHT BE GRANTED AND WITH
IT THE CORRELATIVE NOTIONS THAT THE APPELLEES HAD NO NOTICE THAT THIS
ISSUE WOULD BE INVOLVED AND NO OPPORTUNITY TO MAKE APPROPRIATE PROTESTS
OR TO PRESENT EVIDENCE UPON IT.  IN A STRICT VIEW NEITHER THE APPELLEES
NOR THE COURT WERE ENTITLED TO RAISE THESE QUESTIONS.  FOR IT WAS NOT
AT ANY TIME SUGGESTED TO THE COMMISSION, AS IT MIGHT HAVE BEEN UPON
PETITION FOR REHEARING, THAT THE PROCEEDINGS HAD BEEN CONDUCTED ON THE
THEORY THAT BOTH APPLICATIONS WOULD NOT BE GRANTED.  APPELLEES STATED
IN THEIR PETITION FOR REHEARING ONLY THAT "DIVISION 5 HAS ERRONEOUSLY
AND IMPROPERLY ASSUMED THAT IN GRANTING ONE OF THE APPLICATIONS IT IS
BY FORCE OF NECESSITY REQUIRED TO GRANT THE OTHER  ..."  THIS IS VERY
DIFFERENT FROM SUGGESTING THAT THE COMMISSION WAS NOT ENTITLED AT ALL
TO CONSIDER GRANTING BOTH APPLICATIONS.  IT IS HIGHLY QUESTIONABLE
THEREFORE WHETHER THE APPELLEES HAVE NOT WAIVED THIS QUESTION.  BUT THE
DISTRICT COURT, IN RAISING IT, HAS SAID THAT IT WAS ACTING IN
PROTECTION OF THE PUBLIC INTEREST AND WE PASS THEREFORE TO
CONSIDERATION OF THE ISSUE ON ITS MERITS. 

THE COMMISSION DID NOT, BY THE MANNER IN WHICH IT DISPOSED OF THE
CAUSE, INJECT AS A "NEW ISSUE" THE QUESTION WHETHER BOTH APPLICATIONS
MIGHT BE GRANTED.  IF THE APPELLEES ACTUALLY ASSUMED IN THE BEGINNING
THAT BOTH APPLICATIONS COULD NOT BE GRANTED, THEIR ASSUMPTION WAS IN
THE TEETH OF THE APPLICATIONS AND THE PERMISSIBLE OUTCOMES PRESENTED
FOR THE COMMISSION'S DECISION. 

AS HAS BEEN SAID, THE TWO APPLICATIONS WERE SEPARATELY INSTITUTED AND
HEARD.  IN THE NATURAL COURSE OF EVENTS EACH JOINT BOARD WAS TO DECIDE
WHETHER TO GRANT OR TO DENY THE PARTICULAR APPLICATION BEFORE IT.  THE
POSSIBILITIES THEREFORE WERE THAT BOTH APPLICATIONS MIGHT BE DENIED,
THAT ONE MIGHT BE GRANTED AND THE OTHER DENIED, OR THAT BOTH MIGHT BE
GRANTED.  MOREOVER, THE RECORD CONTAINS EVIDENCE SHOWING THAT THE
POSSIBILITY OF GRANTING BOTH APPLICATIONS WAS IN THE MINDS OF COUNSEL
AND WITNESSES.  FN15  AND THIS POSSIBILITY MUST HAVE BEEN APPARENT FROM
THE BEGINNING, NOT ONLY FROM THE HISTORY OF THE PRIOR OPERATIONS AND
THE PRIMARY CAUSE FOR THEIR IMPENDING DISRUPTION, BUT ALSO FROM THE
OBVIOUS RELATIONS OF THE APPLICATIONS TO EACH OTHER, THE EQUALLY
OBVIOUS CONSEQUENCES TO THE APPLICANTS OF GRANTING ONE AND DENYING THE
OTHER, AND THE COMMISSION'S RECOGNITION OF THESE FACTS BY THE MANNER IN
WHICH IT SCHEDULED THE HEARINGS FOR SUBSTANTIALLY CONCURRENT
TREATMENT.  THE PARTIES TOO APPARENTLY GAVE SIMILAR RECOGNITION TO THE
QUESTIONED POSSIBLE OUTCOME BY THEIR STIPULATION FOR THE USE OF
EVIDENCE IN BOTH PROCEEDINGS. 

THE ISSUE CONCERNING WHETHER BOTH APPLICATIONS SHOULD BE GRANTED WAS
INJECTED, NOT BY THE COMMISSION'S REPORT OR ANY OTHER ACTION TAKEN BY
IT, BUT BY THE FILING OF THE APPLICATIONS IN THE FIRST PLACE.  IF
APPELLEES MISCONCEIVED THE NATURE OF THE PROCEEDINGS IN THIS RESPECT,
AS WE DO NOT THINK WAS THE CASE, THEY WERE NOT MISLED INTO DOING SO BY
ANY ACTION OF THE COMMISSION OR THE OTHER APPELLANTS. 

WE TURN THEREFORE TO THE OBJECTIONS MADE ON THE SCORE OF THE
COMMISSION'S FINDINGS AND ITS TREATMENT OF THE EVIDENCE.  IN OUR
OPINION THEY ARE EQUALLY UNTENABLE.  THE PRINCIPAL CAUSE OF COMPLAINT
IN THESE RESPECTS IS THAT THE COMMISSION DID NOT CONSIDER EACH CASE
EXCLUSIVELY ON ITS OWN RECORD BUT LOOKED TO THE EVIDENCE IN BOTH
PROCEEDINGS IN FORMING ITS JUDGMENT.  IF THIS IS TRUE AND IF IT HAS
RESULTED IN SUBSTANTIAL PREJUDICE TO THE APPELLEES, AS MIGHT OCCUR, FOR
EXAMPLE, IF THE COMMISSION WERE SHOWN PREJUDICIALLY TO HAVE CONSIDERED
EVIDENCE BEARING ON ONE CASE WHICH DID NOT AFFECT IT AND WAS PRESENTED
IN THE OTHER, AND WHICH APPELLEES WERE GIVEN NO OPPORTUNITY TO MEET,
THE ORDERS, OR ONE OF THEM, WOULD BE IMPROPERLY GROUNDED. 

BUT NO SHOWING OF THIS SORT HAS BEEN MADE.  IT IS TO BE RECALLED THAT
ALL OF THE APPELLEES, AS WELL AS BOTH OF THE APPLICANTS, WERE PARTIES
TO BOTH PROCEEDINGS; WERE REPRESENTED AT ALL OF THE HEARINGS, WHICH
WERE CONDUCTED AT SUBSTANTIALLY THE SAME TIMES AND PLACES; AND WERE
GIVEN FULL OPPORTUNITY TO PRESENT ALL EVIDENCE THEY CONSIDERED
PERTINENT, TO CROSS-EXAMINE WITNESSES AND OTHERWISE TO PROTECT THEIR
INTERESTS.  MOREOVER, LARGE PORTIONS OF THE EVIDENCE APPLIED AS MUCH TO
ONE APPLICATION AS TO ANOTHER.  THIS WAS TRUE, FOR EXAMPLE, OF THE
PROOFS RELATING TO TRAFFIC CONDITIONS, SHIPPER DEMANDS, THE NEED FOR
FASTER SERVICE AND MECHANICAL REFRIGERATION, AND OTHER ITEMS.  IN THESE
CIRCUMSTANCES IT IS DIFFICULT TO SEE HOW APPELLEES COULD HAVE SUSTAINED
SUBSTANTIAL PREJUDICE FROM THE COMMISSION'S CONSIDERATION OF THE
EVIDENCE UPON MATTERS AS CLOSELY RELATED AS THOSE IN ISSUE IN THESE TWO
PROCEEDINGS. 

NOR INDEED DO THEY SUCCEED IN SHOWING SUCH PREJUDICE.  AS WE
UNDERSTAND THEM, THE MOST THAT THEY ASSERT IS THAT THE COMMISSION'S
REPORT SO COMMINGLES THE TWO CASES THAT IT IS IMPOSSIBLE TO DETERMINE
WHICH STATEMENTS ARE SUPPORTED BY WHICH RECORD.  BUT NEITHER IN THE
BRIEFS, NOR UPON SPECIFIC INQUIRY AT THE ARGUMENT, WERE THEY ABLE TO
POINT TO ANY PARTICULAR INSTANCE OF PREJUDICE.  NOR IN FACT DOES THE
OPINION OF THE DISTRICT COURT, ALTHOUGH IT ASSERTS THAT THE REPORT IS
FILLED WITH NUMEROUS INSTANCES OF THIS SORT.  THE ASSERTION, WE THINK,
IS COLORED BY THE COURT'S ERRONEOUS IDEA THAT THE REPORT FIRST INJECTED
THE QUESTION WHETHER BOTH APPLICATIONS SHOULD BE GRANTED; AND TO THE
SAME CAUSE, IT WOULD SEEM, MAY BE ATTRIBUTED THE COURT'S UNDUE
DISCOUNTING OF THE FACT THAT UPON THIS ISSUE, AS ON THE ALTERNATIVE
POSSIBLE OUTCOMES, MUCH OF THE EVIDENCE WAS IDENTICAL, MADE SO BY THE
PARTIES' OWN STIPULATION.  IN ANY EVENT THE APPELLEES HAVE NOT POINTED
TO ANY SPECIFIC STATEMENT IN THE REPORT WHICH IS OBVIOUSLY APPLICABLE
TO BOTH CASES OR WHICH IS REQUIRED AS A BASIC FINDING TO SUPPORT THE
ORDER IN ONE, WHICH IS WITHOUT SUPPORT IN BOTH RECORDS OR IN THE ONE
WHICH IS APPROPRIATE. 

IN THE ABSENCE OF ANY SHOWING OF SPECIFIC PREJUDICE, THE CLAIM COMES
DOWN TO THE HIGHLY TECHNICAL OBJECTION THAT THE COMMISSION, IN THE
FINAL STAGE OF FORMING ITS JUDGMENT, COULD NOT IN EITHER CASE TAKE
ACCOUNT OF WHAT HAD BEEN DONE IN THE OTHER, NOTWITHSTANDING THE CLOSELY
RELATED CHARACTER AND OBJECTS OF THE APPLICATIONS AND THE PRIOR
PROCEEDINGS.  THE CONTENTION IN ITS FARTHEST REACH AMOUNTS TO A LEGAL
VERSION OF THE SCRIPTURAL INJUNCTION AGAINST LETTING ONE'S RIGHT HAND
KNOW WHAT ONE'S LEFT HAND MAY BE DOING. 

OBVIOUSLY IT WOULD BE CONSISTENT NEITHER WITH GOOD SENSE NOR, WE
THINK, WITH THE TYPE OF HEARING ASSURED BY THE STATUTE TO FORCE THE
COMMISSION TO PUT ON SUCH COMPLETE BLINDERS.  WHATEVER MAY BE THE
LIMITS OUTSIDE WHICH IT CANNOT GO IN LOOKING BEYOND THE RECORD IN THE
PARTICULAR PROCEEDING AT THE STAGE OF FORMULATING ITS JUDGMENT, NONE
CERTAINLY WOULD GO SO FAR.  AND, GIVEN THAT THE REPORT CONTAINS ALL THE
ESSENTIAL FINDINGS REQUIRED, CF. FLORIDA V. UNITED STATES, 282 U.S.
194, THE COMMISSION IS NOT COMPELLED TO ANNOTATE TO EACH FINDING THE
EVIDENCE SUPPORTING IT. 

IT IS TRUE THAT ORDINARILY AN ADMINISTRATIVE AGENCY WILL ACT
APPROPRIATELY, IN A PROCEEDING OF THIS SORT, UPON THE RECORD PRESENTED
AND SUCH MATTERS AS PROPERLY MAY RECEIVE ITS ATTENTION THROUGH
"OFFICIAL NOTICE."  FN16  IT IS ALSO TRUE THAT THIS COURT, IN
APPROPRIATE INSTANCES, HAS LIMITED THE USE OF THE LATTER IMPLEMENT IN
ORDER TO ASSURE THAT THE PARTIES WILL NOT BE DEPRIVED OF A FAIR
HEARING.  SEE UNITED STATES V. ABILENE & SOUTHERN R. CO., 265 U.S. 274,
286-290; INTERSTATE COMMERCE COMMISSION V. LOUISVILLE & NASHVILLE R.
CO., 227 U.S. 88, 93-94.  BUT IN DOING SO IT HAS NOT UNDERTAKEN TO MAKE
A FETISH OF STICKING SQUARELY WITHIN THE FOUR CORNERS OF THE SPECIFIC
RECORD IN ADMINISTRATIVE PROCEEDINGS OR OF PINNING DOWN SUCH AGENCIES,
WITH REFERENCE TO FACT DETERMINATIONS, EVEN MORE RIGIDLY THAN THE
COURTS IN STRICTLY JUDICIAL PROCEEDINGS.  ON THE CONTRARY, IN THE ONE
CASE AS IN THE OTHER, THE MERE FACT THAT THE DETERMINING BODY HAS
LOOKED BEYOND THE RECORD PROPER DOES NOT INVALIDATE ITS ACTION UNLESS
SUBSTANTIAL PREJUDICE IS SHOWN TO RESULT.  MARKET STREET R. CO. V.
RAILROAD COMM'N, 324 U.S. 548, 561-562; CF. OPP COTTON MILLS V.
ADMINISTRATOR, 312 U.S. 126, 154-155.  IN THESE CASES NO MORE IS
NECESSARY THAN TO APPLY THAT RULE. 

THE REMAINING OBJECTIONS ARE DIRECTED MORE APPROPRIATELY TO THE
FINDINGS AND THEIR SUPPORT IN THE EVIDENCE.  APPELLEES SAY THAT THE
ORDER GRANTING BOTH APPLICATIONS IS DEFECTIVE IN THAT IT IS NOT FOUNDED
UPON AN EXPRESS FINDING OR INDEED UPON ANY FINDING THAT THERE WAS A
NEED FOR TWO THROUGH-LINE OPERATIONS WHICH WOULD BE IN COMPETITION WITH
ONE ANOTHER.  THEY URGE THAT IT WAS NOT SUFFICIENT FOR THE COMMISSION
TO FIND, AS IT DID ON ADEQUATE EVIDENCE, THAT THE EXISTING SERVICE
BETWEEN PORTLAND AND SAN FRANCISCO WAS INADEQUATE; AND TO CONCLUDE, AS
THE REPORT EXPRESSLY STATED, THAT IN VIEW OF THIS FACT, AMONG OTHERS,
"PUBLIC CONVENIENCE AND NECESSITY REQUIRE THE OPERATIONS SET FORTH IN
OUR FINDINGS HEREIN."  FN17  THIS STATEMENT WAS ADDITIONAL TO THE
EXPLICIT CONCLUSION ALREADY NOTED  FN18  THAT THE SITUATION PRESENTED
BY THE APPLICATIONS WAS ONE WHICH REQUIRED EITHER GRANTING BOTH OR
DENYING BOTH.  AND THE FINDINGS EXPRESSLY STATED, CONCERNING EACH
APPLICATION, THAT THE "PRESENT AND FUTURE PUBLIC CONVENIENCE AND
NECESSITY REQUIRE" THE EXTENDED OPERATIONS.  FN19 

APART FROM THE FACT THAT THIS WAS ALL THAT THE STATUTE REQUIRED, CF.
UNITED STATES V. DETROIT & CLEVELAND NAVIGATION CO., 326 U.S. 236, AND
THE FURTHER FACT THAT THERE CAN BE NO PRESUMPTION THAT THE COMMISSION
DISREGARDED THE PUBLIC OR ANY OTHER INTEREST, THERE ARE TWO OBVIOUS
ANSWERS.  ONE IS THAT THE COMMISSION, IN MAKING THE SEPARATELY STATED
FINDINGS, COULD NOT HAVE BEEN OBLIVIOUS TO THE COMPETITIVE CONSEQUENCES
OF ITS ORDER OR THE RELATION OF THOSE CONSEQUENCES TO THE PUBLIC
INTEREST.  FN20  THE OTHER IS THAT THOSE FINDINGS, READ IN THE LIGHT OF
THE REPORT, ADEQUATELY AND EXPRESSLY COVER THE ELEMENT OF PUBLIC
CONVENIENCE AND NECESSITY, INCLUDING THE COMPETITIVE FACTORS WHICH THE
COMMISSION INESCAPABLY HAD IN MIND.  ONLY THE MOST HYPERCRITICAL
READING OF THE FINDINGS, AND ONE WHICH IGNORES THE REPORT'S EXPLICIT
STATEMENTS IN MANY RESPECTS, COULD CONSTRUE THEM AS MEANING ONLY THAT
EACH OPERATION WAS REQUIRED BY PUBLIC CONVENIENCE AND NECESSITY WITHOUT
ANY REGARD TO THE COMPETITIVE CONSEQUENCES OF GRANTING BOTH.  THE
COMMISSION SHOULD NOT BE REQUIRED TO REWRITE ITS REPORT SIMPLY TO SAY,
REDUNDANTLY WE THINK, THAT BOTH OPERATIONS, AS WELL AS EACH, ARE
REQUIRED BY PUBLIC CONVENIENCE AND NECESSITY. 

APPELLEES FURTHER SAY THAT, EVEN IF THE COMMISSION WAS CORRECT IN
GRANTING A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO O.N.C.,
IT IMPROPERLY GRANTED SUCH A CERTIFICATE TO CONSOLIDATED.  SECTION
207(A) REQUIRES THAT THE COMMISSION FIND "THAT THE APPLICANT IS FIT,
WILLING, AND ABLE PROPERLY TO PERFORM THE SERVICE PROPOSED" AND THE
DISTRICT COURT MADE A FINDING OF FACT THAT "THE COMMISSION FAILED TO
FIND, AND THERE IS NO EVIDENCE IN EITHER RECORD TO SUPPORT SUCH A
FINDING, THAT CONSOLIDATED IS ADEQUATELY EQUIPPED  ...  UNDER ANY
CONDITIONS." 

THE COURT UNDOUBTEDLY DID NOT MEAN THAT THERE WAS NO FINDING WHATEVER
AS TO FITNESS, WILLINGNESS AND ABILITY, FOR THE COMMISSION DID MAKE
SUCH A FINDING IN THE STATUTORY LANGUAGE.  WHAT WAS OBVIOUSLY MEANT WAS
THAT SUCH AN ULTIMATE FINDING WAS NOT ENOUGH, AS OF COURSE IT WAS NOT,
SEE FLORIDA V. UNITED STATES, SUPRA, IN THE ABSENCE OF A BASIC FINDING
TO SUPPORT IT; AND THAT THERE WAS NO SUCH BASIC FINDING. 

WE DO NOT AGREE, HOWEVER, THAT THERE WAS NO SUCH BASIC FINDING.  THE
PARAGRAPH OF THE COMMISSION'S REPORT SET OUT IN THE MARGIN  FN21  WAS A
SUFFICIENT FINDING, THOUGH INARTISTICALLY DRAWN, CONCERNING
CONSOLIDATED'S FINANCIAL FITNESS AND ABILITY.  NOR WAS THERE A LACK OF
EVIDENCE TO SUPPORT THIS.  FN22 

FINALLY, THE DISTRICT COURT REMANDED THE CASES FOR REHEARING IN ORDER
FOR THE COMMISSION, AMONG OTHER THINGS, TO DETERMINE CONSOLIDATED'S
FITNESS "TO INITIATE AND MAINTAIN ONE OF SUCH LINES IN VIEW OF PRESENT
CONDITIONS."  THIS ACTION WAS UNWARRANTED.  THE RECORDS IN THE TWO
PROCEEDINGS WERE CLOSED IN OCTOBER, 1940.  THE COMMISSION ISSUED ITS
REPORT AND ORDER ON MARCH 1, 1943.  A PETITION FOR REHEARING WAS FILED
BY THE APPELLEES AND OTHER PROTESTANTS ON APRIL 30, 1943, AND WAS
DENIED BY THE COMMISSION ON AUGUST 2, 1943.  FN23  THE CERTIFICATES
WERE ISSUED ON SEPTEMBER 7 AND 15, 1943.  SUIT WAS BROUGHT IN THE
DISTRICT COURT ON JANUARY 13, 1944.  THE COURT RENDERED ITS DECISION ON
SEPTEMBER 20, 1944, SUGGESTING THAT THE COMMISSION HAD IMPROPERLY
DENIED THE PETITION FOR REHEARING.  ITS VIEW WAS THAT THE RECORD WAS SO
STALE, PARTICULARLY IN VIEW OF THE INFLUENCE OF THE WAR UPON
TRANSPORTATION FACILITIES, THAT APPLICATION OF THE DOCTRINE OF
ATCHISON, T. & S.F.R. CO. V. UNITED STATES, 284 U.S. 248, WAS PROPER. 

THAT CASE, AS HAS BEEN INDICATED MORE THAN ONCE, WAS "PROMPTLY
RESTRICTED  ...  TO ITS SPECIAL FACTS, UNITED STATES V. NORTHERN
PACIFIC RY. CO., 288 U.S. 490, AND IT STANDS VIRTUALLY ALONE." 
INTERSTATE COMMERCE COMMISSION V. JERSEY CITY, 322 U.S. 503, 515; SEE
ALSO BALTIMORE & OHIO R. CO. V. UNITED STATES, 298 U.S. 349, 389. 
EXCEPT IN THE SINGLE INSTANCE, IT HAS BEEN HELD CONSISTENTLY THAT
REHEARINGS BEFORE ADMINISTRATIVE BODIES ARE ADDRESSED TO THEIR OWN
DISCRETION.  INTERSTATE COMMERCE COMMISSION V. JERSEY CITY, SUPRA.
ONLY A SHOWING OF THE CLEAREST ABUSE OF DISCRETION COULD SUSTAIN AN
EXCEPTION TO THAT RULE.  THE COMMISSION WAS WELL ACQUAINTED WITH THE
IMPACT OF THE WAR UPON FACILITIES FOR TRANSPORT AND UPON THE
TRANSPORTATION BUSINESS IN GENERAL.  IN ADDITION TO ITS OWN EXPERT
KNOWLEDGE CONCERNING SUCH MATTERS, IT HAD BEFORE IT NOT ONLY THE FACTS
SET FORTH IN THE PETITION FOR REHEARING  FN24  BUT ALSO THOSE ALLEGED
IN THE EXTENDED REPLIES FILED BY THE APPLICANTS. 

WE THINK THE COURT MISCONCEIVED NOT ONLY THE EFFECTS OF THE
COMMISSION'S ACTION IN THESE CASES BUT ALSO ITS OWN FUNCTION.  IT IS
NOT TRUE, AS THE OPINION STATED, THAT "...  THE COURTS MUST IN A
LITIGATED CASE, BE THE ARBITERS OF THE PARAMOUNT PUBLIC INTEREST." 
FN25  THIS IS RATHER THE BUSINESS OF THE COMMISSION, MADE SUCH BY THE
VERY TERMS OF THE STATUTE.  THE FUNCTION OF THE REVIEWING COURT IS MUCH
MORE RESTRICTED.  IT IS LIMITED TO ASCERTAINING WHETHER THERE IS
WARRANT IN THE LAW AND THE FACTS FOR WHAT THE COMMISSION HAS DONE. 
UNLESS IN SOME SPECIFIC RESPECT THERE HAS BEEN PREJUDICIAL DEPARTURE
FROM REQUIREMENTS OF THE LAW OR ABUSE OF THE COMMISSION'S DISCRETION,
THE REVIEWING COURT IS WITHOUT AUTHORITY TO INTERVENE.  IT CANNOT
SUBSTITUTE ITS OWN VIEW CONCERNING WHAT SHOULD BE DONE, WHETHER WITH
REFERENCE TO COMPETITIVE CONSIDERATIONS OR OTHERS, FOR THE COMMISSION'S
JUDGMENT UPON MATTERS COMMITTED TO ITS DETERMINATION, IF THAT HAS
SUPPORT IN THE RECORD AND THE APPLICABLE LAW. 

THE JUDGMENT IS REVERSED. 

FN1  THERE ARE TWO MAIN NORTH-SOUTH HIGHWAYS BETWEEN THE SAN
FRANCISCO AND PORTLAND AREAS, U.S. 101, THE SO-CALLED COAST ROUTE, AND
U.S. 99, ROUGHLY PARALLEL BUT SOME MILES INLAND, CALLED THE VALLEY
ROUTE.  THE JOINT SERVICE WAS CONDUCTED OVER THE LATTER AND THE
APPLICATIONS OF CONSOLIDATED AND O.N.C. EACH SOUGHT TO EXTEND
OPERATIONS OVER THIS ROUTE. 

FN2  THE JOINT SERVICE FOLLOWED HIGHWAY 99 FROM SAN FRANCISCO NEARLY
TO THE NORTHERN BOUNDARY OF CALIFORNIA, FROM WHERE PART CONTINUED ON
NO. 99 TO MEDFORD AND THE REMAINDER FOLLOWED A SEPARATE HIGHWAY TO
KLAMATH FALLS, THIS LEG OF THE JOURNEY BEING MADE WITH O.N.C.'S
EQUIPMENT IN BOTH DIRECTIONS.  CONSOLIDATED'S "LEG" BETWEEN PORTLAND AT
THE NORTH AND MEDFORD AND KLAMATH FALLS AT THE SOUTH FOLLOWED
DIFFERENT, BUT SUBSTANTIALLY PARALLEL, HIGHWAYS, THE WESTERLY ROUTE
BEING NO. 99.    FN3  CONSOLIDATED ALSO SOUGHT AUTHORITY TO EXTEND ITS
SERVICE FROM MARSHFIELD, OREGON, TO SAN FRANCISCO OVER THE COAST ROUTE,
SEE NOTE 1, AND FROM LAKEVIEW, OREGON, TO REDDING, CALIFORNIA, THROUGH
ALTURAS, CALIFORNIA. 

FN4  O.N.C. ALSO OPERATED A ROUTE FROM SAN FRANCISCO TO ELKO,
NEVADA. 

FN5  O.N.C. ALSO SOUGHT AUTHORITY TO SERVE MARSHFIELD, OREGON, AND
OTHER POINTS IN THE COOS BAY AREA. 

FN6  THE COMMISSION STATED IN ITS REPORT:  "...  O.N.C. AND
CONSOLIDATED HAVE INTERCHANGED FREIGHT AT MEDFORD FOR OVER 11 YEARS AND
AT KLAMATH FALLS FOR OVER 6 YEARS TO GIVE JOINT THROUGH SERVICE BETWEEN
POINTS SERVED BY EACH.  SINCE JULY 1939 ABOUT ONE-THIRD OF THE TONNAGE
HAS BEEN HANDLED THROUGH INTERCHANGE OF TRAILERS.  AT FIRST, THE AMOUNT
OF INTERCHANGED TRAFFIC WAS SMALL AND CONSOLIDATED'S PRINCIPAL BUSINESS
WAS OF A LOCAL NATURE TO AND FROM MEDFORD.  APPARENTLY, O.N.C.'S
PRINCIPAL BUSINESS ALSO WAS LOCAL.  THE INTERCHANGE BUSINESS HAS SINCE
INCREASED UNTIL IT FAR EXCEEDS THAT OF THE LOCAL BUSINESS." 

FN7  ALTHOUGH THE PRESIDENT OF CONSOLIDATED ADMITTED AT THE HEARING
THAT O.N.C.'S REFUSAL TO JOIN THE ASSOCIATION HAD A SUBSTANTIAL
INFLUENCE IN CAUSING THE FILING OF CONSOLIDATED'S APPLICATION, HE COULD
NOT SAY WHETHER OR NOT THAT APPLICATION WOULD HAVE BEEN FILED IF O.N.C.
HAD JOINED. 

FN8  SECTION 205(A) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
305(A).  APPARENTLY THE REASON THAT THE TWO PROCEEDINGS WERE NOT
CONSOLIDATED AND HEARD BEFORE ONE JOINT BOARD AROSE FROM THE FACT THAT,
ALTHOUGH THE MAJOR ISSUE, WHETHER OR NOT A THROUGH ROUTE BETWEEN SAN
FRANCISCO AND PORTLAND SHOULD BE ALLOWED, WAS COMMON TO BOTH CASES,
CERTAIN OTHER ISSUES WERE NOT AND, SINCE SOME OF THE LATTER RELATING TO
O.N.C. AFFECTED OPERATIONS IN WASHINGTON AS WELL AS IN OREGON AND
CALIFORNIA, A DIFFERENTLY CONSTITUTED BOARD WAS REQUIRED FOR MAKING
RECOMMENDATIONS CONCERNING THEM.  CF. AMERICAN TRUCKING ASS'NS V.
UNITED STATES, 326 U.S. 77, 81-83. 

FN9  THERE ARE FIVE APPELLEES.  PIERCE AUTO FREIGHT LINES, INC., LOS
ANGELES-SEATTLE MOTOR EXPRESS, AND ANGELO COLLETTI (DOING BUSINESS AS
COLLETTI FAST FREIGHT), ARE COMMON CARRIERS BY MOTOR VEHICLE WHICH
OPERATE BETWEEN PORTLAND AND SAN FRANCISCO.  PACIFIC MOTOR TRUCKING
COMPANY IS A SUBSIDIARY OF SOUTHERN PACIFIC COMPANY AND PERFORMS
CERTAIN MOTOR VEHICLE OPERATIONS WHICH ARE AUXILIARY TO THE RAIL
SERVICES OF THE SOUTHERN PACIFIC RAILWAY.  PACIFIC SOUTHWEST RAILROAD
ASSOCIATION IS AN UNINCORPORATED ASSOCIATION OF RAILROADS SERVING THE
PACIFIC SOUTHWEST TERRITORY, ORGANIZED TO PROTECT RAIL INTERESTS AS
THEY MAY BE AFFECTED BY MOTOR CARRIER OPERATIONS IN THAT TERRITORY. 

FN10  SECTION 205(B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
305(B). 

FN11  THE CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY GRANTED TO
CONSOLIDATED AUTHORIZES EXTENSIONS OF ITS ROUTES FROM MEDFORD AND
KLAMATH FALLS TO SAN FRANCISCO AND ALSO FROM LAKEVIEW, OREGON, TO
REDDING, CALIFORNIA.  THE CERTIFICATE GRANTED TO O.N.C. AUTHORIZES
EXTENSIONS FROM MEDFORD TO PORTLAND AND FROM KLAMATH FALLS TO GOSHEN,
OREGON.  IN BOTH CASES, OPERATION WAS THUS AUTHORIZED OVER ALTERNATE
HIGHWAYS.  CF. NOTES 3 AND 5. 

FN12  THE DISTRICT COURT PERMITTED CONSOLIDATED TO INTERVENE AND FILE
AN ANSWER "WITH ADMISSIONS AND DENIALS TO THE PETITION," BUT REFUSED TO
CONSIDER AND ORDERED STRICKEN THE AFFIRMATIVE DEFENSES WHICH
CONSOLIDATED SET UP.  ONE OF THESE WAS THAT THE APPELLEES WERE GUILTY
OF LACHES IN BRINGING THE SUIT, SINCE THE CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY WERE ISSUED IN SEPTEMBER, 1943, AND THE
COMPLAINT WAS NOT FILED UNTIL JANUARY, 1944.  CONSOLIDATED CONTENDS
THAT THE DISTRICT COURT ERRED IN STRIKING THE AFFIRMATIVE DEFENSES.  IN
THE VIEW THAT WE TAKE OF THE CASE IT IS NOT NECESSARY TO CONSIDER THIS
QUESTION. 

FN13  THE DISTRICT COURT ALSO FOUND THAT "THE COMMISSION FAILED TO
FIND, AND THERE WAS NO EVIDENCE IN EITHER RECORD TO SUPPORT SUCH A
FINDING, THAT EACH APPLICANT WAS SEPARATELY CAPABLE OF EQUIPPING,
MAINTAINING, AND CONDUCTING THE PROPOSED OPERATION IN THE FACE OF
COMPETITION FROM THE OTHER"; THAT "THE COMMISSION'S REPORT FAILS TO
DISCLOSE THAT IT GAVE ANY CONSIDERATION TO THE POSSIBILITY OF ADVERSE
EFFECT UPON ANY PLAINTIFF OF THE INSTITUTION OF TWO THROUGH-LINE
COMPETITIVE OPERATIONS BETWEEN SAN FRANCISCO AND PORTLAND"; AND THAT
"THE COMMISSION FAILED TO FIND, AND THERE IS NO EVIDENCE IN EITHER
RECORD TO SUPPORT SUCH A FINDING, THAT CONSOLIDATED IS ADEQUATELY
EQUIPPED TO ESTABLISH AND MAINTAIN THE PROPOSED THROUGH-LINE OPERATIONS
UNDER ANY CONDITIONS."  THESE FINDINGS ARE CONSIDERED BELOW. 

FN14  THEY WERE NOT THE SAME, SINCE THE EXTENSION SOUGHT IN EACH CASE
COVERED THE PORTION OF THE JOINT ROUTE OVER WHICH THE OTHER APPLICANT
THEN WAS OPERATING.  BUT, OF COURSE, IF ONE APPLICATION HAD BEEN
GRANTED AND ONE DENIED, THE PRACTICAL EFFECT WOULD HAVE BEEN TO AWARD
TO THE SUCCESSFUL APPLICANT THE ENTIRE ROUTE OF THE PRIOR JOINT
SERVICE, AND THUS TO EXCLUDE THE UNSUCCESSFUL ONE AT LEAST FROM ANY
SHARE IN THE JOINT OPERATION; PROBABLY ALSO FROM ANY PRACTICAL
OPPORTUNITY OF SUCCESSFUL OPERATION OVER ITS REMAINING "LEG" OF THE
PREVIOUS JOINT SERVICE.  THESE CONSIDERATIONS NO DOUBT WERE INFLUENTIAL
IN LEADING THE COMMISSION TO CONCLUDE THAT EITHER BOTH APPLICATIONS
SHOULD BE GRANTED OR BOTH DENIED, SINCE TO GRANT ONE AND DENY THE
OTHER, ENTIRELY APART FROM CONSIDERATIONS RELATING TO SO-CALLED
"GRANDFATHER RIGHTS," WOULD WORK OBVIOUS HARDSHIP ON ONE.  CF. NOTE
15. 

FN15  ONE EXAMPLE IS SUFFICIENT.  THE PRESIDENT OF CONSOLIDATED WAS
ASKED: 

"FROM YOUR EXPERIENCE IN WATCHING THE DEVELOPMENT OF THIS JOINT
SERVICE, WHAT DO YOU EXPECT THE EFFECT TO BE OF THE GRANTING OF THIS
APPLICATION UPON THE EXISTING CARRIERS BETWEEN SAN FRANCISCO AND
MEDFORD, AND SAN FRANCISCO AND KLAMATH FALLS?"  HE REPLIED: 

"TREATING THEM SEPARATELY, SOUTH OF MEDFORD, WE HAVE IN OUR OPERATION
THE OREGON-NEVADA-CALIFORNIA FAST FREIGHT AND THE PACIFIC TRUCK EXPRESS
AND THE PIERCE AUTO LINES. 

"THE CALIFORNIA FAST FREIGHT ARE CONCURRENTLY APPLYING FOR THE RIGHT
TO EXTEND THEIR SERVICES NORTH OF MEDFORD TO PORTLAND.  THE NET RESULT
OF THE GRANTING OF THEIR APPLICATION AND OUR APPLICATION WOULD BE THE
SPLITTING OF THE TRAFFIC BETWEEN THE TWO COMPANIES.  WE WOULD EACH TAKE
PART OF THE PRESENT BUSINESS WE ARE NOW JOINTLY HANDLING, AND OPERATE
OUR EQUIPMENT STRAIGHT THROUGH. 

"IN MY OPINION, THIS WILL RESULT IN BOTH OF US OPERATING ABOUT THE
SAME NUMBER OF VEHICLES, ABOUT THE SAME NUMBER OF MILES; AND IF OUR
DIVISIONS OF REVENUES OF THE PAST HAVE BEEN PROPERLY ARRANGED, WE
CONTINUE TO GROSS ABOUT THE SAME AMOUNT OF REVENUE.  IT SHOULD RESULT
IN OUR BOTH HAVING A MORE PROFITABLE OPERATION, AS IT WILL ELIMINATE
THE PRESENT WASTE OF CHECKING, WEIGHING, AND TRANSFERRING FREIGHT AT AN
INTERMEDIATE POINT. 

"THE SERVICE WOULD BE IMPROVED AND NO DOUBT IT WOULD ATTRACT MORE
VOLUME.  THAT IS A CONJECTURE.  AT THE PRESENT TIME, BOTH COMPANIES ARE
MAINTAINING TERMINAL FACILITIES IN SAN FRANCISCO SO ON OUR PART IT
WOULD MEAN VERY LITTLE INCREASE IN OUR TERMINAL COSTS. 

"IT WILL MEAN AN INCREASE IN TERMINAL COSTS FOR THE OREGON-NEVADA
CALIFORNIA FAST FREIGHT, BUT THE COST OF IT WOULD BE OFFSET, IN MY
OPINION, BY ELIMINATING THE COST OF TRANSFERRING THE THROUGH FREIGHT AT
MEDFORD." 

IN ITS REPORT, THE COMMISSION STATED, "FOR REASONS WHICH ARE OBVIOUS
(SEE NOTE 14), AUTHORITY SHOULD BE EITHER GRANTED OR DENIED TO BOTH
APPLICANTS TO OPERATE OVER THE VALLEY ROUTE." 

FN16  CF. JUDICIAL NOTICE BY ADMINISTRATIVE TRIBUNALS (1934) 44 YALE
L.J. 355; FARIS, JUDICIAL NOTICE BY ADMINISTRATIVE BODIES (1928) 4 IND.
L.J. 167. 

FN17  THE COMMISSION'S REPORT STATED:  "OF THE MOTOR-CARRIER
PROTESTANTS, THERE IS ONLY ONE - PIERCE - WHICH IS AUTHORIZED TO
TRANSPORT GENERAL COMMODITIES TO AND FROM ALL INTERMEDIATE POINTS ALONG
THE VALLEY ROUTE.  PIERCE DID NOT REINSTITUTE DAILY OPERATION TO AND
FROM SAN FRANCISCO, HOWEVER, UNTIL AFTER THE FILING OF THESE
APPLICATIONS AND BUT A FEW WEEKS PRIOR TO THE HEARINGS HEREIN.  SHIPPER
WITNESSES GENERALLY WERE UNFAMILIAR WITH THE FACT THAT PIERCE'S
OPERATION WAS DAILY.  THERE ARE, OF COURSE, CERTAIN OTHER MOTOR
CARRIERS OPERATING OVER THIS ROUTE BUT THEIR AUTHORITY IS EITHER (1)
RESTRICTED IN SUCH A WAY AS TO PRECLUDE A FINDING THAT THEIR SERVICE IS
ADEQUATE ESPECIALLY AS TO INTERMEDIATE POINTS, OR (2) THE RECORD
DEFINITELY ESTABLISHES THAT THEIR SERVICE TO INTERMEDIATE POINTS, AND
IN SOME INSTANCES TO AND FROM SAN FRANCISCO, IS AT BEST NEGLIGIBLE.  IN
VIEW OF THE FOREGOING, WE ARE OF THE OPINION THAT PUBLIC CONVENIENCE
AND NECESSITY REQUIRE THE OPERATIONS SET FORTH IN OUR FINDINGS
HEREIN." 

FN18  SEE NOTE 14. 

FN19  THE COMMISSION RESTED THIS ULTIMATE FINDING IN PART UPON THE
FOLLOWING STATEMENT AS TO THE NEED FOR EXTENDED OPERATIONS:  "THERE IS
NO DOUBT BUT THAT A NUMBER OF SHIPPERS DESIRE SUCH PROPOSED SERVICES. 
EACH APPLICANT ALSO OPERATES UNITS EQUIPPED WITH MECHANICAL
REFRIGERATION, WHICH SERVICE CERTAIN OF THE SHIPPERS DESIRE FOR THE
PROPER TRANSPORTATION OF THEIR SHIPMENTS.  THE PROPOSED SERVICE WILL
ENABLE SHIPPERS TO OBTAIN GOODS MORE RAPIDLY, RESULTING IN AN INCREASE
IN THEIR BUSINESSES.  SOME OF THE SHIPPERS ESTIMATE AN INCREASE IN
BUSINESS AMOUNTING TO SEVERAL THOUSAND DOLLARS.  PRACTICALLY ALL OF THE
WITNESSES PREFER A SINGLE-LINE THROUGH SERVICE.  SOME OF THEM HAVE USED
THE SERVICES OF EXISTING CARRIERS AND HAVE NOT FOUND THEM SATISFACTORY
PRINCIPALLY BECAUSE OF IMPROPER REFRIGERATION OR LACK OF SERVICE TO
INTERMEDIATE POINTS."  SEE ALSO NOTE 17.  THE COMMISSION NOTED IN ITS
REPORT THAT THE TRAFFIC BETWEEN SAN FRANCISCO AND PORTLAND WAS
INCREASING. 

FN20  THE COMMISSION HAS RECOGNIZED THE VALUE OF REASONABLE
COMPETITION, CF. CHESAPEAKE & OHIO R. CO. V. UNITED STATES, 283 U.S.
35; UNITED STATES V. DETROIT & CLEVELAND NAVIGATION CO., 326 U.S. 236;
INLAND MOTOR FREIGHT V. UNITED STATES, 36 F.SUPP.  885; 44 M.C.C. 535,
548, IN NO CASE PERHAPS MORE CLEARLY THAN IN THOSE PRESENTED ON THIS
APPEAL.  SEE ALSO NOTE 15. 

FN21  "FITNESS.  - THERE IS NO DOUBT AS TO O.N.C.'S FITNESS,
FINANCIAL OR OTHERWISE, TO CONDUCT THE OPERATIONS HEREIN AUTHORIZED,
ALTHOUGH PROTESTANTS QUESTION CONSOLIDATED'S FINANCIAL ABILITY TO
CONDUCT THE PROPOSED OPERATION.  PROTESTANTS CONTEND THAT IF THESE
APPLICATIONS ARE GRANTED EACH APPLICANT WILL OPERATE AT A LOSS.  EACH
APPLICANT OF COURSE CLAIMS THAT IT WILL BE BETTER OFF IF ALLOWED TO
OPERATE STRAIGHT THROUGH WITHOUT THE NECESSITY OF INTERCHANGING AT
MEDFORD.  ELIMINATION OF THE COST OF TRANSFER AT MEDFORD WOULD SAVE
APPROXIMATELY FIFTEEN OR SIXTEEN HUNDRED DOLLARS A MONTH.  CONSIDERING
THE FACT HERETOFORE DISCUSSED IN SOME DETAIL, WE ARE OF THE OPINION
THAT WE SHOULD GIVE APPLICANTS THE BENEFIT OF ANY DOUBTS THAT MAY EXIST
AS TO WHETHER THEY COULD OPERATE SUCCESSFULLY OVER THE ROUTES
AUTHORIZED HEREIN."  SEE ALSO NOTE 22. 

FN22  IT IS TRUE THAT IN 1939 CONSOLIDATED HAD APPROXIMATELY $215,000
OF CURRENT LIABILITIES IN EXCESS OF CURRENT ASSETS AND HAD HYPOTHECATED
A GREAT DEAL OF EQUIPMENT AS A MEANS OF OBTAINING CAPITAL. 
NEVERTHELESS, FROM ITS INCEPTION THE COMPANY HAD BEEN FINANCED LARGELY
OUT OF EARNINGS AND IN EVERY YEAR BUT 1932 HAD BEEN ABLE TO EARN
PROFITS.  MOREOVER, THERE WAS AMPLE TESTIMONY THAT ITS SERVICE WAS
SATISFACTORY AND RELIABLE.  THERE WAS EVIDENCE ALSO FROM WHICH THE
COMMISSION COULD FIND THAT THE ADDITIONAL FINANCIAL BURDEN WHICH WOULD
BE IMPOSED BY GRANTING CONSOLIDATED'S APPLICATION COULD BE MET BY THAT
COMPANY.  THE AMOUNT OF ADDITIONAL CAPITAL INVESTMENT NEEDED FOR
TERMINALS AND EQUIPMENT WAS DOUBTFUL.  BUT THERE WAS TESTIMONY THAT THE
INTERMEDIATE CASH OUTLAY NECESSARY FOR NEW TERMINALS AT OAKLAND AND
SACRAMENTO WOULD NOT BE MORE THAN $12,000 AND THAT, IF ADDITIONAL
EQUIPMENT WERE NEEDED, CONSOLIDATED WAS IN A POSITION TO FURNISH IT AND
HAVE IT FINANCED.  IN ADDITION, BECAUSE OF THE CONSIDERABLE DISTANCE
COVERED BY THE NEW THROUGH ROUTE, CONSOLIDATED WOULD BE ABLE TO MAKE "A
PROFITABLE LOAD FACTOR." 

ON THIS AND OTHER EVIDENCE WE CANNOT SAY THAT THE COMMISSION'S
FINDING AS TO THE FINANCIAL ABILITY OF CONSOLIDATED TO UNDERTAKE THE
NEW SERVICE LACKED SUPPORT IN THE RECORD.  FOR US OR THE DISTRICT COURT
TO DO SO WOULD BE TO INVADE THE COMMISSION'S PROPER FUNCTION. 

FN23  IN ITS EXCEPTIONS TO THE EXAMINER'S REPORT, O.N.C. ASKED THAT
THE PROCEEDING BE REOPENED BECAUSE OF MANY CHANGES THAT HAD OCCURRED
SINCE THE CLOSING OF THE RECORD.  IN ITS REPORT, THE COMMISSION STATED:
"IN ITS EXCEPTIONS, O.N.C. ALSO REQUESTS A FURTHER HEARING, BUT IN
VIEW OF OUR CONCLUSIONS HEREIN IT IS DOUBTFUL WHETHER IT WOULD STILL
DESIRE SUCH FURTHER HEARING.  ITS REQUEST FOR FURTHER HEARING IS HEREBY
DENIED." 

FN24  THE PETITION ALLEGED, IN PART, THAT "NEW MOTOR VEHICLE COMMON
CARRIER OPERATIONS SUCH AS ARE AUTHORIZED BY THE ORDER AND WHICH
DUPLICATE ADEQUATE EXISTING OPERATIONS ARE FORBIDDEN BY ORDERS OF THE
OFFICE OF DEFENSE TRANSPORTATION"; THAT "SINCE ORDERS OF THE OFFICE OF
DEFENSE TRANSPORTATION PROHIBIT SPEEDS IN EXCESS OF 35 MILES PER HOUR,
AND THE PROMISED SERVICE WOULD REQUIRE CONSISTENT HIGHWAY SPEEDS
AVERAGING 52 1/2 MILES PER HOUR OUTSIDE OF CITIES AND OTHER RESTRICTED
AREAS, IT IS CERTAIN THE SERVICE PROPOSED AND AUTHORIZED CANNOT AND
WILL NOT BE GIVEN, NOR CAN ANY SERVICE FASTER THAN THAT OF EXISTING
OPERATORS BE RENDERED"; AND THAT "ALL CONTROLLING STATEMENTS OF FACT
RELIED UPON BY THE DIVISION TO SUSTAIN ITS CONCLUSIONS WERE AS OF THE
DATE OF THE REPORT AND ARE NOW ENTIRELY AND COMPLETELY UNTRUE  ..." 
FN25  THE FULL SENTENCE IS AS FOLLOWS:  "WHILE IT IS TRUE THAT PROBLEMS
SUCH AS THESE CAN ONLY BE BROUGHT TO THE COURTS WHEN PRIVATE INTERESTS
CONCEIVE THERE HAS BEEN INJURY OF RIGHTS OF PROPERTY, AND ALTHOUGH THE
FIELD OF JUDICIAL REVIEW OF ADMINISTRATIVE DETERMINATION HAS BEEN
NARROWLY CONFINED, THE COURTS MUST IN A LITIGATED CASE, BE THE ARBITERS
OF THE PARAMOUNT PUBLIC INTEREST."  57 F.SUPP.  192, 196. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















WILSON V. COOK, 327 U.S. 474 


ARGUED JANUARY 11, 1946.  - DECIDED MARCH 4, 1946.  - 208 ARK. 459, 187
S.W.2D 7, REVERSED IN PART AND AFFIRMED IN PART. 


AN ARKANSAS STATUTE, ACT 118 OF 1923, POPE'S DIGEST, ARKANSAS STATUTES
(1937), SECS. 13371-13375, IMPOSES A TAX ON THE SEVERANCE OF TIMBER
FROM THE SOIL; REQUIRES PAYMENT OF THE TAX IN THE FIRST INSTANCE BY THE
PERSON ACTUALLY ENGAGED IN SEVERING THE TIMBER FROM THE SOIL, BUT, IN
GENERAL TERMS AND WITHOUT EXCEPTING THE UNITED STATES, REQUIRES THE
SEVERER TO COLLECT OR WITHHOLD THE AMOUNT OF THE TAX FROM THE PRICE
PAID TO THE OWNER OF THE TIMBER AT THE TIME OF THE SEVERANCE; AND GIVES
THE STATE A LIEN UPON ALL TIMBER SEVERED FROM THE SOIL.  A CONTRACTOR
CONTRACTED WITH THE UNITED STATES FOR THE PURCHASE AND SEVERANCE OF
TIMBER ON NATIONAL FOREST RESERVES LOCATED WITHIN THE STATE, SOME OF
WHICH WERE PUBLIC LANDS OF THE UNITED STATES WHEN ARKANSAS WAS ADMITTED
TO STATEHOOD AND SOME OF WHICH WERE ACQUIRED BY THE UNITED STATES BY
PURCHASE WITH CONSENT OF THE STATE.  THE CONTRACT PROVIDED THAT "TITLE
TO ALL TIMBER  ...  SHALL REMAIN IN THE UNITED STATES UNTIL IT IS PAID
FOR, AND SCALED, MEASURED OR COUNTED."  THE CONTRACTOR SEVERED TIMBER
FROM THE FOREST RESERVES IN QUESTION; EXECUTION WAS ISSUED FOR
COLLECTION OF THE TAX; AND THE CONTRACTOR SUED TO ENJOIN COLLECTION. 
HELD: 

1.  SINCE THE RECORD IN NO. 328 DOES NOT SHOW THAT APPELLANTS
PRESENTED FOR DECISION TO THE STATE SUPREME COURT ANY FEDERAL QUESTION,
AND SINCE THAT COURT, IN HOLDING THE TAX CONSTITUTIONAL, DID NOT
NECESSARILY PASS ON THE CONSTITUTIONAL VALIDITY OF THE STATUTE, THIS
COURT IS WITHOUT JURISDICTION OF THE APPEAL UNDER SEC. 237(A) OF THE
JUDICIAL CODE; BUT THE APPEAL IS TREATED AS A PETITION FOR CERTIORARI,
AS REQUIRED BY SEC. 237(C), AND CERTIORARI IS GRANTED.  PP. 480-482. 

2.  HAVING TREATED THE APPEAL IN NO. 328 AS A PETITION FOR
CERTIORARI, AS REQUIRED BY SEC. 237(C) OF THE JUDICIAL CODE, AND HAVING
GRANTED CERTIORARI, THIS COURT CAN PASS ONLY ON THE FEDERAL QUESTIONS
PASSED UPON BY THE STATE SUPREME COURT.  P. 482. 

3.  THE CONTRACTOR, BEING TAXED BY THE STATE ON HIS ACTIVITIES IN
SEVERING TIMBER FROM GOVERNMENT LANDS UNDER CONTRACT WITH THE
GOVERNMENT, CAN NOT CLAIM THE BENEFIT OF IMPLIED CONSTITUTIONAL
IMMUNITY OF THE FEDERAL GOVERNMENT FROM TAXATION BY THE STATE.  PP.
482, 483. 

4.  SINCE THE POINT IS MADE FOR THE FIRST TIME HERE, THIS COURT IS
NOT FREE TO CONSIDER AN ATTACK ON THE STATE STATUTE ON THE GROUND THAT
IT REQUIRES THE SEVERER TO COLLECT THE TAX FROM THE OWNER OF THE TIMBER
AT THE TIME OF SEVERANCE AND GIVES THE STATE A LIEN ON THE LAND FROM
WHICH THE TIMBER IS SEVERED AND A LIEN UPON THE SEVERED TIMBER, EVEN
THOUGH TITLE TO THE SEVERED PRODUCT HAS NOT PASSED TO THE TAXPAYER, AND
THAT THE STATUTE THUS PURPORTS TO PLACE A FORBIDDEN TAX DIRECTLY ON THE
UNITED STATES.  P. 483. 

5.  THIS COURT IS NOT NOW CONCERNED WITH THE GOVERNMENT'S LIABILITY
TO THE STATUTORY LIEN OR FOR THE PAYMENT OF THE TAX, SINCE IT WILL BE
TIME ENOUGH TO CONSIDER THOSE QUESTIONS WHEN SOME EFFORT IS MADE TO
ENFORCE THE LIEN OR COLLECT THE TAX FROM THE UNITED STATES.  P. 484. 

6.  THE STATE HAS TERRITORIAL JURISDICTION TO LAY THE TAX UPON
ACTIVITIES CARRIED ON WITHIN THE FOREST RESERVE PURCHASED BY THE UNITED
STATES.  P. 486. 

(A)  THE ARKANSAS STATUTE CONSENTING TO THE PURCHASE OF FOREST LANDS
BY THE UNITED STATES (POPE'S DIGEST, ARKANSAS STATUTES, SEC. 5646) MADE
NO EXPRESS GRANT OR RESERVATION OF LEGISLATIVE POWER OVER THE AREAS
PURCHASED AND CAN NOT BE TAKEN AS HAVING YIELDED OR INTENDED TO
SURRENDER TO THE FEDERAL GOVERNMENT THE STATE LEGISLATIVE JURISDICTION
OVER THE AREA IN QUESTION, SO FAR AS EXERCISE OF THAT JURISDICTION IS
CONSISTENT WITH FEDERAL FUNCTIONS.  P. 486. 

(B)  BY SEC. 12 OF THE ACT OF MARCH 1, 1911, 16 U.S.C. SEC. 516,
AUTHORIZING THE PURCHASE OF FOREST RESERVES, CONGRESS IN EFFECT HAS
DECLINED TO ACCEPT EXCLUSIVE LEGISLATIVE JURISDICTION OVER FOREST
RESERVE LANDS, AND EXPRESSLY PROVIDED THAT THE STATE SHALL NOT LOSE ITS
JURISDICTION IN THIS RESPECT NOR THE INHABITANTS "BE ABSOLVED FROM
THEIR DUTIES AS CITIZENS OF THE STATE."  P. 486. 

7.  THE STATE HAS LEGISLATIVE JURISDICTION OVER THE FEDERAL FOREST
RESERVE LANDS LOCATED WITHIN IT WHICH WERE PUBLIC LANDS OF THE UNITED
STATES WHEN ARKANSAS WAS ADMITTED TO STATEHOOD.  P. 487. 

(A)  UPON ADMISSION OF ARKANSAS TO STATEHOOD UPON AN EQUAL FOOTING
WITH THE ORIGINAL STATES, THE LEGISLATIVE AUTHORITY OF THE STATE
EXTENDED OVER THE FEDERALLY OWNED LANDS WITHIN THE STATE, TO THE SAME
EXTENT AS OVER SIMILAR PROPERTY HELD BY PRIVATE OWNERS, EXCEPT THAT THE
STATE COULD ENACT NO LAW WHICH WOULD CONFLICT WITH THE POWERS RESERVED
TO THE UNITED STATES BY THE CONSTITUTION.  P. 487. 

(B)  SUCH AUTHORITY DID NOT PASS TO THE UNITED STATES BY VIRTUE OF
THE PROVISION OF ARTICLE I, SEC. 8, CL. 17 OF THE CONSTITUTION, WHICH
AUTHORIZES IT "TO EXERCISE EXCLUSIVE LEGISLATION  ... OVER ALL PLACES
PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE
SAME SHALL BE."  P. 488. 

(C)  SINCE THE UNITED STATES DID NOT PURCHASE THE LANDS WITH THE
CONSENT OF THE STATE, IT DID NOT ACQUIRE EXCLUSIVE JURISDICTION UNDER
THE CONSTITUTIONAL PROVISION, AND THERE HAS BEEN NO CESSION OF
JURISDICTION BY THE STATE.  P. 488. 

(D)  ALTHOUGH ARKANSAS HAS CONFERRED ON CONGRESS POWER TO PASS LAWS
FOR THE ADMINISTRATION AND CONTROL OF LANDS ACQUIRED BY THE UNITED
STATES IN ARKANSAS, IT HAS NOT CEDED EXCLUSIVE LEGISLATIVE JURISDICTION
EITHER OVER LANDS RESERVED BY THE UNITED STATES FROM THE PUBLIC DOMAIN
OR OVER LANDS ACQUIRED IN THE STATE.  P. 488. 

WILSON ET AL., DOING BUSINESS AS WILSON LUMBER CO., V. COOK,
COMMISSIONER OF REVENUES. 

NO. 328.  APPEAL FROM THE SUPREME COURT OF ARKANSAS.* 

*TOGETHER WITH NO. 329, COOK, COMMISSIONER OF REVENUES, V. WILSON ET
AL., DOING BUSINESS AS WILSON LUMBER CO., ON CERTIORARI TO THE SAME
COURT, ARGUED AND DECIDED ON THE SAME DATES. 

A CONTRACTOR WHO HAD CONTRACTED WITH THE UNITED STATES FOR THE
PURCHASE AND SEVERANCE OF TIMBER ON NATIONAL FOREST RESERVES IN THE
STATE OF ARKANSAS SUED TO ENJOIN COLLECTION OF A TAX LEVIED BY THE
STATE ON THE SEVERANCE OF TIMBER FROM THE SOIL.  THE STATE CHANCERY
COURT ENJOINED COLLECTION OF THE TAX.  ON APPEAL, THE SUPREME COURT OF
ARKANSAS MODIFIED THE JUDGMENT, HOLDING THAT THE STATE WAS WITHOUT
AUTHORITY TO LAY A TAX ON THE SEVERANCE OF TIMBER FROM LANDS WHICH WERE
PUBLIC LANDS OF THE UNITED STATES WHEN ARKANSAS WAS ADMITTED TO
STATEHOOD; THAT THE AUTHORITY OF THE STATE TO LAY THE TAX EXTENDED TO
TRANSACTIONS OCCURRING ON THE FOREST RESERVE ACQUIRED BY THE UNITED
STATES BY PURCHASE; AND THAT THE TAX ASSESSED AGAINST THE CONTRACTOR
FOR THE SEVERANCE OF TIMBER ON FOREST RESERVES OF THE LATTER CLASS DID
NOT LAY AN UNCONSTITUTIONAL BURDEN ON THE UNITED STATES.  208 ARK. 459;
187 S.W.2D 7.  EACH PARTY APPEALED FROM THAT PART OF THE DECISION WHICH
WAS ADVERSE TO HIM.  ON SUBMISSION OF JURISDICTIONAL STATEMENTS, THIS
COURT POSTPONED CONSIDERATION OF ITS JURISDICTION OF THE CONTRACTOR'S
APPEAL (NO. 328), BUT DISMISSED THE TAX COMMISSIONER'S APPEAL (NO.
329), FOR WANT OF JURISDICTION, TREATED THE PAPERS AS A PETITION FOR
CERTIORARI, AND GRANTED CERTIORARI.  326 U.S. 685.  REVERSED IN PART
AND AFFIRMED IN PART, P. 489. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

AN ARKANSAS STATUTE, ACT 118 OF 1923, POPE'S DIGEST, ARKANSAS
STATUTES (1937), SEC. 13371, IMPOSES "A PRIVILEGE OR LICENSE TAX  ...
UPON EACH PERSON  ...  ENGAGED IN THE BUSINESS OF  ... SEVERING FROM
THE SOIL  ...  FOR COMMERCIAL PURPOSES NATURAL RESOURCES, INCLUDING
...  TIMBER ..."  BY SEC. 13372, AS A CONDITION OF THE LICENSE, THERE
IS IMPOSED ON THE SEVERER AN OBLIGATION TO PAY THE TAX AND CONSENT THAT
THE TAX "SHALL  ...  REMAIN A LIEN ON EACH UNIT OF PRODUCTION UNTIL
PAID INTO THE STATE TREASURY  ..."  SECTION 13375 FIXES THE TAX AT 7
CENTS PER THOUSAND FEET OF THE TIMBER SEVERED.  SECTION 13376 PROVIDES
THAT THE STATE "SHALL HAVE A LIEN UPON ANY AND ALL NATURAL RESOURCES
SEVERED FROM THE SOIL  ..."  IN SEC. 13382 IT IS PROVIDED THAT "THE
PAYMENT OF SAID PRIVILEGE TAXES SHALL BE REQUIRED OF THE SEVERER  ...
ACTUALLY ENGAGED IN THE OPERATION OF SEVERING NATURAL PRODUCTS WHETHER
AS OWNER, LESSEE, CONCESSIONAIRE OR CONTRACTOR.  THE REPORTING TAXPAYER
SHALL COLLECT OR WITHHOLD OUT OF THE PROCEEDS OF THE SALE OF THE
PRODUCTS SEVERED THE PROPORTIONATE PARTS OF THE TOTAL TAX DUE BY THE
RESPECTIVE OWNERS OF SUCH NATURAL RESOURCES AT THE TIME OF SEVERANCE." 

APPELLANTS IN NO. 328, A COPARTNERSHIP, ENTERED INTO CONTRACTS WITH
THE UNITED STATES FOR THE PURCHASE AND SEVERANCE OF TIMBER ON NATIONAL
FOREST RESERVES LOCATED WITHIN THE STATE, SOME OF WHICH WERE PUBLIC
LANDS OF THE UNITED STATES WHEN ARKANSAS WAS ADMITTED TO STATEHOOD AND
SOME OF WHICH WERE ACQUIRED BY THE UNITED STATES BY PURCHASE WITH THE
CONSENT OF THE STATE.  THE CONTRACTS OF SEVERANCE AND PURCHASE PROVIDED
THAT "TITLE TO ALL TIMBER INCLUDED IN THIS AGREEMENT SHALL REMAIN IN
THE UNITED STATES UNTIL IT HAS BEEN PAID FOR, AND SCALED, MEASURED OR
COUNTED."  BY THE CONTRACTS THE APPELLANTS WERE REQUIRED IN ADVANCE OF
SEVERANCE TO PLACE WITH THE GOVERNMENT REPRESENTATIVE ADVANCE
INSTALLMENTS OF THE ESTIMATED PURCHASE PRICE. 

IN THE YEARS 1937 TO 1942, APPELLANTS, PROCEEDING UNDER THEIR
CONTRACT, SEVERED TIMBER FROM THE FOREST RESERVES IN QUESTION.  AN
EXECUTION HAVING BEEN ISSUED AND DELIVERED TO THE COUNTY SHERIFF,
APPELLEE IN NO. 328, AND ALSO APPELLANT IN NO. 329, FOR COLLECTION OF
THE TAX ASSESSED AGAINST APPELLANTS IN NO. 328 FOR THE YEARS IN
QUESTION, THEY BROUGHT THE PRESENT SUIT IN THE STATE CHANCERY COURT TO
ENJOIN THE COLLECTION.  THE QUESTIONS ON WHICH THE PARTIES ASK DECISION
ARE (A) WHETHER THE FOREST RESERVES WHICH WERE PUBLIC LANDS OF THE
UNITED STATES BEFORE ARKANSAS WAS ADMITTED TO STATEHOOD ARE SUBJECT TO
THE TAXING JURISDICTION OF THE STATE; (B) WHETHER THE FOREST RESERVES
ACQUIRED BY THE UNITED STATES BY PURCHASE REMAIN SUBJECT TO THE TAXING
AUTHORITY OF THE STATE; AND (C) WHETHER THE TAX IS UNCONSTITUTIONAL AS
A TAX LAID UPON THE PROPERTY OR ACTIVITIES OF THE UNITED STATES, OR
BECAUSE THE TAX LAID ON PLAINTIFFS IMPOSED AN UNCONSTITUTIONAL BURDEN
ON THE UNITED STATES. 

THE CHANCERY COURT GAVE JUDGMENT FOR PLAINTIFFS, ENJOINING COLLECTION
OF THE TAX.  IT HELD THAT IF THE TAX "BE APPLIED" TO PLAINTIFFS, IT
"WOULD BE A TAX UPON THE OPERATIONS OF THE GOVERNMENT OF THE UNITED
STATES," AND THAT THE TAX "DOES NOT APPLY TO THE TIMBER SEVERED BY THE
PLAINTIFFS FROM THE NATIONAL FOREST."  ON APPEAL THE SUPREME COURT OF
ARKANSAS MODIFIED THE JUDGMENT, HOLDING THAT THE STATE WAS WITHOUT
AUTHORITY TO LAY A TAX ON THE SEVERANCE OF TIMBER FROM LANDS WHICH WERE
PUBLIC LANDS OF THE UNITED STATES WHEN ARKANSAS WAS ADMITTED TO
STATEHOOD; THAT THE AUTHORITY OF THE STATE TO LAY THE TAX EXTENDED TO
TRANSACTIONS OCCURRING ON THE FOREST RESERVE ACQUIRED BY THE UNITED
STATES BY PURCHASE; AND THAT THE PRESENT TAX ASSESSED AGAINST
PLAINTIFFS FOR THE SEVERANCE OF TIMBER ON FOREST RESERVES OF THIS CLASS
DID NOT LAY AN UNCONSTITUTIONAL BURDEN ON THE UNITED STATES.  208 ARK.
459, 187 S.W.2D 7. 

PLAINTIFFS HAVE APPEALED, IN NO. 328, FROM SO MUCH OF THE JUDGMENT AS
SUSTAINED THE TAX WITH RESPECT TO LANDS ACQUIRED BY THE UNITED STATES
BY PURCHASE, URGING IN THEIR ASSIGNMENTS OF ERROR THAT THE SUPREME
COURT OF ARKANSAS ERRED IN REVERSING THE JUDGMENT OF THE CHANCERY
COURT, "WHICH HELD TO BE VOID THE SEVERANCE TAX STATUTE," AND IN
HOLDING THAT THE SEVERANCE TAX LAW IS NOT REPUGNANT TO THE SUPREMACY
CLAUSE, ART. VI, CL. 2 OF THE CONSTITUTION, OR TO ART. IV, SEC. 3, CL.
2, CONFERRING ON CONGRESS POWER TO DISPOSE OF "AND MAKE ALL NEEDFUL
RULES AND REGULATIONS RESPECTING  ...  PROPERTY BELONGING TO THE UNITED
STATES  ..."  DEFENDANT, APPELLANT IN NO. 329, SEEKS BY HIS APPEAL TO
REVERSE SO MUCH OF THE JUDGMENT AS DENIED THE RIGHT TO LEVY THE TAX FOR
SEVERANCE OF TIMBER FROM FOREST LANDS RESERVED FROM THE PUBLIC DOMAIN. 
ON SUBMISSION OF THE JURISDICTIONAL STATEMENTS IN THIS COURT WE
POSTPONED TO THE HEARING ON THE MERITS CONSIDERATION OF OUR
JURISDICTION IN NO. 328.  IN NO. 329 WE DISMISSED THE APPEAL FOR WANT
OF JURISDICTION.  SEC. 237(A) OF THE JUDICIAL CODE AS AMENDED, 28
U.S.C. SEC. 344(A).  TREATING THE PAPERS ON WHICH THE APPEAL WAS
ALLOWED AS A PETITION FOR WRIT OF CERTIORARI, AS REQUIRED BY SEC.
237(C) OF THE JUDICIAL CODE AS AMENDED, WE GRANTED CERTIORARI. 

UNDER SEC. 237 OF THE JUDICIAL CODE WE ARE WITHOUT JURISDICTION OF
THE APPEAL IN NO. 328, UNLESS THERE WAS "DRAWN IN QUESTION" BEFORE THE
SUPREME COURT OF ARKANSAS "THE VALIDITY OF A STATUTE" OF THE STATE, "ON
THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION,  ...  OR LAWS OF
THE UNITED STATES."  THE PURPOSE OF THIS REQUIREMENT IS TO RESTRICT OUR
MANDATORY JURISDICTION ON APPEAL, MEMPHIS GAS CO. V. BEELER, 315 U.S.
649, 651, AND TO MAKE CERTAIN THAT NO JUDGMENT OF A STATE COURT WILL BE
REVIEWED ON APPEAL BY THIS COURT UNLESS THE HIGHEST COURT OF THE STATE
HAS FIRST BEEN APPRISED THAT A STATE STATUTE IS BEING ASSAILED AS
INVALID ON FEDERAL GROUNDS, CHARLESTON ASSN. V. ALDERSON, 324 U.S. 182,
185-6 AND CASES CITED, OR, WHEN THE STATUTE, AS APPLIED, IS SO
ASSAILED, UNTIL IT HAS OPPORTUNITY AUTHORITATIVELY TO CONSTRUE IT.
FISKE V. KANSAS, 274 U.S. 380, 385 AND CASES CITED.  THIS
JURISDICTIONAL REQUIREMENT IS SATISFIED ONLY IF THE RECORD SHOWS THAT
THE QUESTION OF THE VALIDITY UNDER FEDERAL LAW OF THE STATE STATUTE, AS
CONSTRUED AND APPLIED, HAS EITHER BEEN PRESENTED FOR DECISION TO THE
HIGHEST COURT OF THE STATE, WALL V. CHESAPEAKE & OHIO R. CO., 256 U.S.
125, 126; CITIZENS NATIONAL BANK V. DURR, 257 U.S. 99, 106, OR HAS IN
FACT BEEN DECIDED BY IT, NICKEY V. MISSISSIPPI, 292 U.S. 393, 394;
WHITFIELD V. OHIO, 297 U.S. 431, 435-6, AND THAT ITS DECISION WAS
NECESSARY TO THE JUDGMENT.  CUYAHOGA POWER CO. V. NORTHERN REALTY CO.,
244 U.S. 300, 304 AND CASES CITED.  THE RECORD IN THIS CASE DOES NOT
DISCLOSE THAT AT ANY TIME IN THE COURSE OF THE PROCEEDINGS IN THE STATE
COURTS PLAINTIFFS ASSERTED THE INVALIDITY OF A STATE STATUTE ON ANY
FEDERAL GROUND.  THE BILL OF COMPLAINT IN THE CHANCERY COURT SET UP
ONLY THAT THE DEMAND OF THE STATE FOR THE TAX "IS AN ILLEGAL AND VOID
EXACTION" AND "IS IN VIOLATION OF" ART. IV, SEC. 3, CL. 2 AND OF ART.
VI, CL. 2 OF THE CONSTITUTION.  THERE WERE NO ASSIGNMENTS OF ERROR IN
THE SUPREME COURT OF ARKANSAS. 

AS THE RECORD DOES NOT SHOW THAT THE PLAINTIFFS PRESENTED FOR
DECISION TO THE STATE SUPREME COURT ANY FEDERAL QUESTION, THEY HAVE NO
APPEAL TO THIS COURT UNLESS THE OPINION OF THE STATE SUPREME COURT
SHOWS THAT THAT COURT RULED ON THE VALIDITY OF A STATE STATUTE UNDER
THE LAWS AND CONSTITUTION OF THE UNITED STATES.  CHARLESTON ASSN. V.
ALDERSON, SUPRA, 185-6 AND CASES CITED.  THAT COURT'S OPINION, WHILE
HOLDING THAT THE "TAX LAW" WAS APPLICABLE TO "PERSONS SEVERING TIMBER
FROM LANDS OF THE UNITED STATES IN A NATIONAL FOREST," DOES NOT
INDICATE THAT PLAINTIFFS RAISED THERE, OR THAT THE COURT PASSED UPON,
THE VALIDITY OF THE STATUTE AS APPLIED.  THE COURT CONSIDERED ONLY THE
VALIDITY OF "THE TAX," NOT THAT OF THE STATUTE. 

WITH REFERENCE TO PLAINTIFFS' LIABILITY FOR THE TAX, IT DECIDED ONLY
THAT THE STATE "HAS THE RIGHT TO COLLECT THE SEVERANCE TAX, SO FAR AS
TERRITORIAL JURISDICTION IS CONCERNED," FOR SEVERANCE OF TIMBER FROM
LANDS ACQUIRED BY THE UNITED STATES BY PURCHASE, AND THAT PLAINTIFFS
COULD NOT CLAIM THE BENEFITS OF THE IMMUNITY, IF ANY, OF THE FEDERAL
GOVERNMENT FROM "THE TAX," SINCE IT WAS IMPOSED ON PLAINTIFFS, NOT THE
GOVERNMENT OR ITS PROPERTY.  IT SAID THAT THE GOVERNMENT WAS NOT
CONSTITUTIONALLY IMMUNE FROM SUCH ECONOMIC BURDEN AS MIGHT BE PASSED ON
FROM THE TAXPAYER TO THE GOVERNMENT BY REASON OF THE EFFECT OF THE TAX
PAID BY THE SEVERERS, CITING JAMES V. DRAVO CONTRACTING CO., 302 U.S.
134 AND ALABAMA V. KING & BOOZER, 314 U.S. 1.  BEING ASKED TO ENJOIN
THE COLLECTION OF THE TAX, THE STATE COURT CONTENTED ITSELF WITH
HOLDING THAT THE TAX, WHICH WAS ASSESSED ON PLAINTIFFS AND NOT THE
GOVERNMENT, IMPOSED NO BURDEN ON THE GOVERNMENT WHICH INFRINGED ITS
IMPLIED CONSTITUTIONAL TAX IMMUNITY.  SINCE THE COLLECTION OF A TAX BY
A STATE OFFICER, AS HERE, MAY OR MAY NOT OFFEND AGAINST THE
CONSTITUTION, INDEPENDENTLY OF THE CONSTITUTIONALITY OF A STATUTE, SEE
NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362, 369, THE STATE
COURT, IN HOLDING THE TAX CONSTITUTIONAL, DID NOT NECESSARILY PASS ON
THE CONSTITUTIONAL VALIDITY OF THE STATUTE. 

IN ORDER TO SUPPORT AN APPEAL TO THIS COURT IT IS NECESSARY THAT THE
QUESTION OF THE VALIDITY OF THE STATE TAXING STATUTE BE EITHER
PRESENTED TO THE STATE COURT OR DECIDED BY IT.  IT IS NOT SUFFICIENT
MERELY TO ATTACK, AS HERE, THE TAX LEVIED UNDER THE STATUTE, OR "THE
RIGHT TO COLLECT THE TAX" WHICH HAS BEEN LEVIED, OR TO SHOW THAT THE
VALIDITY OF THE TAX ALONE HAS BEEN CONSIDERED.  CHARLESTON ASSN. V.
ALDERSON, SUPRA, 185, AND CASES CITED.  FOR "THE MERE OBJECTION TO AN
EXERCISE OF AUTHORITY UNDER A STATUTE, WHOSE VALIDITY IS NOT ATTACKED,
CANNOT BE MADE THE BASIS" OF AN APPEAL.  JETT BROS. CO. V. CITY OF
CARROLLTON, 252 U.S. 1, 6.  IT IS FOR THIS REASON THAT WE HAVE HELD
THAT AN APPEAL WILL NOT BE SUSTAINED WHERE THERE HAS BEEN ONLY AN
ATTACK UPON A TAX ASSESSMENT, JETT BROS. CO. V. CITY OF CARROLLTON,
SUPRA; MILLER V. BOARD OF COUNTY COMM'RS, 290 U.S. 586; MEMPHIS GAS CO.
V. BEELER, SUPRA, 650; COMMERCIAL CREDIT CO. V. O'BRIEN, 323 U.S. 665;
CHARLESTON ASSN. V. ALDERSON, SUPRA, 185, OR, AS HERE, UPON A "TAX,"
CITIZENS NATIONAL BANK V. DURR, SUPRA, 106; INDIAN TERRITORY
ILLUMINATING CO. V. BOARD OF COUNTY COMM'RS, 287 U.S. 573; BALTIMORE
NATIONAL BANK V. STATE TAX COMM'N, 296 U.S. 538; IRVINE V. SPAETH, 314
U.S. 575, OR UPON THE ATTEMPT TO COLLECT A TAX, JETT BROS. CO. V. CITY
OF CARROLLTON, SUPRA. 

SINCE PLAINTIFFS' ATTACK IS DIRECTED TO THE VALIDITY OF THE TAX AS
LAID, AND NOT TO THE VALIDITY OF THE STATUTE, AS APPLIED, WE ARE
WITHOUT JURISDICTION OF THEIR APPEAL UNDER SEC. 237 OF THE JUDICIAL
CODE.  TREATING THE APPEAL AS A PETITION FOR WRIT OF CERTIORARI, AS
REQUIRED BY SEC. 237(C) OF THE JUDICIAL CODE, WE GRANT CERTIORARI, AS
WE DID IN NO. 329.  WE CAN CONSIDER ONLY THE FEDERAL QUESTIONS PASSED
UPON BY THE STATE SUPREME COURT. 

OUR DECISION IN JAMES V. DRAVO CONTRACTING CO., SUPRA, AND IN ALABAMA
V. KING & BOOZER, SUPRA, AND THE CASES CITED IN THOSE OPINIONS, CAN
LEAVE NO DOUBT THAT THE SUPREME COURT OF ARKANSAS CORRECTLY HELD THAT
PLAINTIFFS, WHO ARE TAXED BY THE STATE ON THEIR ACTIVITIES IN SEVERING
LUMBER FROM GOVERNMENT LANDS UNDER CONTRACT WITH THE GOVERNMENT, CANNOT
CLAIM THE BENEFIT OF THE IMPLIED CONSTITUTIONAL IMMUNITY OF THE FEDERAL
GOVERNMENT FROM TAXATION BY THE STATE.    PLAINTIFFS NOW, FOR THE FIRST
TIME, ASSAIL THE TAX AND THE STATUTE IMPOSING IT, ON THE GROUND THAT
THE ACT REQUIRES THE SEVERER TO COLLECT THE TAX FROM THE OWNER OF THE
TIMBER AT THE TIME OF SEVERANCE, POPE'S DIGEST, SEC. 13382, AND GIVES
TO THE STATE A LIEN ON THE LAND FROM WHICH THE LUMBER IS SEVERED, ID.,
SEC. 13374, AND A LIEN UPON THE SEVERED TIMBER, ID., SEC. 13376, EVEN
THOUGH TITLE TO THE SEVERED PRODUCT HAS NOT PASSED TO THE TAXPAYER. 
THEY CONTEND THAT THE ACT THUS PURPORTS TO PLACE A FORBIDDEN TAX
DIRECTLY ON THE UNITED STATES.  CF. MAYO V. UNITED STATES, 319 U.S.
441. 

BUT WE ARE NOT FREE TO CONSIDER THESE GROUNDS OF ATTACK FOR THE
REASON THAT THEY WERE NOT PRESENTED TO THE SUPREME COURT OF ARKANSAS OR
CONSIDERED OR DECIDED BY IT.  WHILE THE CONSTITUTIONAL QUESTION NOW
SOUGHT TO BE PRESENTED IS IN SOME MEASURE RELATED TO THAT DECIDED BY
THE STATE COURT, AND, LIKE IT, ARISES UNDER THE IMPLIED CONSTITUTIONAL
IMMUNITY OF THE FEDERAL GOVERNMENT FROM STATE TAXATION, IT IS NOT
MERELY "AN ENLARGEMENT" OF AN ARGUMENT MADE BEFORE THE STATE COURT, BUT
IS SO DISTINCT FROM THE QUESTION DECIDED BY THE STATE COURT THAT OUR
DECISION OF THE ISSUE RAISED THERE WOULD NOT NECESSARILY DECIDE THAT
NOW SOUGHT TO BE RAISED.  COMPARE DEWEY V. DES MOINES, 173 U.S. 193,
197, 198.  WE ARE THEREFORE NOT FREE TO CONSIDER IT. 

"IN REVIEWING THE JUDGMENT OF A STATE COURT, THIS COURT WILL NOT PASS
UPON ANY FEDERAL QUESTION NOT SHOWN BY THE RECORD TO HAVE BEEN RAISED
IN THE STATE COURT OR CONSIDERED THERE, WHETHER IT BE ONE ARISING UNDER
A DIFFERENT OR THE SAME CLAUSE IN THE CONSTITUTION WITH RESPECT TO
WHICH OTHER QUESTIONS ARE PROPERLY PRESENTED."  NEW YORK EX REL. COHN
V. GRAVES, 300 U.S. 308, 317, AND CASES CITED.  FOR, AS WE SAID IN
MCGOLDRICK V. COMPAGNIE GENERALE, 309 U.S. 430, 434-435, "IN CASES
COMING HERE FROM STATE COURTS IN WHICH A STATE STATUTE IS ASSAILED AS
UNCONSTITUTIONAL, THERE ARE REASONS OF PECULIAR FORCE WHICH SHOULD LEAD
US TO REFRAIN FROM DECIDING QUESTIONS NOT PRESENTED OR DECIDED IN THE
HIGHEST COURT OF THE STATE WHOSE JUDICIAL ACTION WE ARE CALLED UPON TO
REVIEW.  APART FROM THE RELUCTANCE WITH WHICH EVERY COURT SHOULD
PROCEED TO SET ASIDE LEGISLATION AS UNCONSTITUTIONAL ON GROUNDS NOT
PROPERLY PRESENTED, DUE REGARD FOR THE APPROPRIATE RELATIONSHIP OF THIS
COURT TO STATE COURTS REQUIRES US TO DECLINE TO CONSIDER AND DECIDE
QUESTIONS AFFECTING THE VALIDITY OF STATE STATUTES NOT URGED OR
CONSIDERED THERE.  IT IS FOR THESE REASONS THAT THIS COURT, WHERE THE
CONSTITUTIONALITY OF A STATUTE HAS BEEN UPHELD IN THE STATE COURT,
CONSISTENTLY REFUSES TO CONSIDER ANY GROUNDS OF ATTACK NOT RAISED OR
DECIDED IN THAT COURT."  SEE ALSO KEOKUK & HAMILTON BRIDGE CO. V.
ILLINOIS, 175 U.S. 626, 633; BOLLN V. NEBRASKA, 176 U.S. 83, 89-92; NEW
YORK V. KLEINERT, 268 U.S. 646, 650-1; WHITNEY V. CALIFORNIA, 274 U.S.
357, 362, 363; SALTONSTALL V. SALTONSTALL, 276 U.S. 260, 267-8. 

IN VIEW OF THE LIEN PROVISIONS OF THE STATUTE AND ITS PROVISIONS
WHICH PURPORT TO AUTHORIZE THE TAXPAYER TO COLLECT THE TAX FROM THE
OWNER OF THE SEVERED TIMBER, HERE THE GOVERNMENT, IT IS SUGGESTED THAT
WE CANNOT RIGHTLY ADJUDGE THAT THE STATE IS ENTITLED TO RECOVER THE TAX
ON THE TRANSACTIONS OF SEVERANCE INVOLVED, WITHOUT DETERMINING THE
APPLICABILITY OF THESE PROVISIONS TO THE GOVERNMENT AND THEIR VALIDITY
IF SO APPLIED.  WE ARE NOT NOW CONCERNED WITH THE GOVERNMENT'S
LIABILITY TO THE STATUTORY LIEN OR FOR PAYMENT OF THE TAX.  IT WILL BE
TIME ENOUGH TO CONSIDER ITS INTERESTS WHEN SOME EFFORT IS MADE TO
ENFORCE THE LIEN OR COLLECT THE TAX FROM THE UNITED STATES.  WE
OBVIOUSLY DO NOT BY OUR JUDGMENT AGAINST THE PLAINTIFFS IMPOSE THE TAX
ON THE GOVERNMENT.  THEIR PROPERTY ALONE IS SUBJECT TO THE LIEN OF THE
PRESENT JUDGMENT AND TO EXECUTION ISSUED UNDER IT.  THEY CANNOT RECOVER
THE AMOUNT OF THE JUDGMENT FROM THE GOVERNMENT UNLESS THE CONSTITUTION
PERMITS.  AND IF IT FORBIDS THEY OBVIOUSLY WILL NOT COLLECT THE TAX. 
IN NEITHER CASE DOES OUR JUDGMENT IMPOSE ANY BURDEN ON THE UNITED
STATES.  WE ARE NOT CALLED ON TO DETERMINE WHETHER PLAINTIFFS COULD
HAVE SUCCESSFULLY CONTESTED THEIR LIABILITY IN THE STATE COURTS OR
HERE, IF THE CONTENTIONS WERE PROPERLY RAISED, UPON THE GROUND THAT
THEY WOULD BE UNABLE TO COLLECT THE TAX FROM THE GOVERNMENT, EITHER
BECAUSE THE PROVISION PURPORTING TO ALLOW SUCH COLLECTION IS
INAPPLICABLE WHERE THE OWNER IS THE GOVERNMENT OR, IF APPLICABLE,
INVALID, OR ON THE GROUND THAT THE TAX, APPLIED TO THEM WITHOUT
RECOURSE AGAINST THE GOVERNMENT, WOULD DENY TO THEM THE EQUAL
PROTECTION OF THE LAWS. 

THE STATE, CONSTRUING ITS OWN LAW, HAS RENDERED AN UNCONDITIONAL
JUDGMENT HOLDING PLAINTIFFS LIABLE FOR THE TAX.  FOR PURPOSES OF OUR
REVIEW WE MUST ASSUME THAT THE JUDGMENT CONFORMS TO STATE LAW.  HENCE
WE ARE CALLED ON TO DETERMINE ONLY FEDERAL QUESTIONS PROPERLY RAISED ON
THE RECORD.  CONSIDERING THE ONLY QUESTION OF THE TAX IMMUNITY OF THE
UNITED STATES WHICH IS SO RAISED, WE DECIDE FOR REASONS ALREADY STATED
THAT THE TAX NOW LAID AND SUSTAINED IMPOSES NO UNCONSTITUTIONAL BURDEN
ON THE FEDERAL GOVERNMENT.  NO QUESTION ARISING UNDER THE FOURTEENTH
AMENDMENT IS RAISED BY THE RECORD EITHER IN THE STATE COURTS OR HERE,
AND WE ARE WITHOUT JURISDICTION TO PASS UPON IT* . 

*EVEN IF THE OPINION OF THE SUPREME COURT OF ARKANSAS HAD PROCEEDED
ON A GROUND SO UNEXPECTED AS TO MAKE TIMELY, BY PETITION FOR REHEARING,
THE RAISING OF THE FEDERAL QUESTIONS NOW FOR THE FIRST TIME ADVANCED,
COMPARE SAUNDERS V. SHAW, 244 U.S. 317; OHIO V. AKRON PARK DISTRICT,
281 U.S. 74, 79, PLAINTIFFS IN THEIR PETITION FOR REHEARING DID NOT
SUGGEST THEM. 

A FURTHER QUESTION IS WHETHER THE LANDS IN THE FOREST RESERVE, WHICH
WERE PURCHASED FOR THAT PURPOSE BY THE UNITED STATES, ARE WITHIN THE
TERRITORIAL TAXING JURISDICTION OF THE STATE.  THE ANSWER TURNS ON THE
INTERPRETATION OF THE STATUTE OF THE UNITED STATES AUTHORIZING THE
ACQUISITION OF THE LANDS, SECS. 7 AND 12 OF THE ACT OF MARCH 1, 1911,
C. 186, 36 STAT. 961, 16 U.S.C. SECS. 480, 516, AND OF THE STATE
STATUTE OF ARKANSAS AUTHORIZING THE SALE.  POPE'S DIGEST, SEC. 5646. 
THE MEANING OF BOTH STATUTES, AS APPLIED IN THIS CASE, IS A FEDERAL
QUESTION, SINCE UPON THEIR CONSTRUCTION DEPEND RIGHTS, POWERS AND
DUTIES OF THE UNITED STATES.  MASON CO. V. TAX COMM'N, 302 U.S. 186,
197, AND CASES CITED. 

THE STATUTE OF ARKANSAS CONSENTING TO THE PURCHASE OF FOREST LANDS BY
THE UNITED STATES, PROVIDED THAT THE STATE SHOULD "RETAIN A CONCURRENT
JURISDICTION WITH THE UNITED STATES IN AND OVER LANDS SO ACQUIRED
...," TO ISSUE AND EXECUTE "CIVIL PROCESS IN ALL CASES, AND SUCH
CRIMINAL PROCESS AS MAY ISSUE UNDER THE AUTHORITY OF THE STATE  ..." 
IT MADE NO EXPRESS GRANT OR RESERVATION OF LEGISLATIVE POWER OVER THE
AREAS PURCHASED.  HENCE THE STATUTE CANNOT BE TAKEN AS HAVING YIELDED
OR INTENDED TO SURRENDER TO THE FEDERAL GOVERNMENT THE STATE
LEGISLATIVE JURISDICTION OVER THE AREA IN QUESTION, SO FAR AS EXERCISE
OF THAT JURISDICTION IS CONSISTENT WITH FEDERAL FUNCTIONS.  ANY DOUBT
AS TO THE EFFECT OF SUCH A GRANT BY THE STATE IN CONFERRING EXCLUSIVE
LEGISLATIVE JURISDICTION OVER THE TERRITORY WHICH IS ACQUIRED BY THE
FEDERAL GOVERNMENT IS REMOVED BY THE PROVISIONS OF THE FEDERAL
STATUTE. 

PROVIDED: 

"THAT THE JURISDICTION, BOTH CIVIL AND CRIMINAL, OVER PERSONS UPON THE
LANDS ACQUIRED UNDER THIS ACT SHALL NOT BE AFFECTED OR CHANGED BY THEIR
PERMANENT RESERVATION  ...  AS NATIONAL FOREST LANDS, EXCEPT SO FAR AS
THE PUNISHMENT OF OFFENSES AGAINST THE UNITED STATES IS CONCERNED, THE
INTENT AND MEANING OF THIS SECTION BEING THAT THE STATE WHEREIN SUCH
LAND IS SITUATED SHALL NOT, BY REASON OF SUCH RESERVATION AND
ADMINISTRATION, LOSE ITS JURISDICTION NOR THE INHABITANTS THEREOF THEIR
RIGHTS AND PRIVILEGES AS CITIZENS OR BE ABSOLVED FROM THEIR DUTIES AS
CITIZENS OF THE STATE." 

BY THIS ENACTMENT CONGRESS IN EFFECT HAS DECLINED TO ACCEPT EXCLUSIVE
LEGISLATIVE JURISDICTION OVER FOREST RESERVE LANDS, AND EXPRESSLY
PROVIDED THAT THE STATE SHALL NOT LOSE ITS JURISDICTION IN THIS RESPECT
NOR THE INHABITANTS "BE ABSOLVED FROM THEIR DUTIES AS CITIZENS OF THE
STATE."  COMPARE MASON CO. V. TAX COMM'N, SUPRA; ATKINSON V. TAX
COMM'N, 303 U.S. 20; COLLINS V. YOSEMITE PARK CO., 304 U.S. 518, 528;
STEWART & CO. V. SADRAKULA, 309 U.S. 94, 99. 

OUR CONCLUSION, BASED ON THE CONSTRUCTION OF THE INTERRELATED STATE
AND FEDERAL STATUTES, IS THAT THE STATE HAS TERRITORIAL JURISDICTION TO
LAY THE TAX UPON ACTIVITIES CARRIED ON WITHIN THE FOREST RESERVE
PURCHASED BY THE UNITED STATES. 

WHAT WE HAVE SAID OF THE ARGUMENT THAT THE TAX ASSESSED ON PLAINTIFFS
IS AN UNCONSTITUTIONAL BURDEN ON THE GOVERNMENT, IS APPLICABLE TO THE
TAX ASSESSED FOR SEVERANCE OF TIMBER FROM FOREST RESERVE LANDS WHICH,
FROM THE BEGINNING, HAVE BEEN A PART OF THE PUBLIC DOMAIN.  THAT TAX IS
LIKEWISE VALID IF THE STATE HAS LEGISLATIVE JURISDICTION OVER SUCH
LANDS WITHIN ITS BOUNDARIES. 

UPON ADMISSION OF ARKANSAS TO STATEHOOD IN 1836 UPON AN EQUAL FOOTING
WITH THE ORIGINAL STATES (ACT OF JUNE 15, 1836, C. 100, 5 STAT. 50),
THE LEGISLATIVE AUTHORITY OF THE STATE EXTENDED OVER THE FEDERALLY
OWNED LANDS WITHIN THE STATE, TO THE SAME EXTENT AS OVER SIMILAR
PROPERTY HELD BY PRIVATE OWNERS, SAVE THAT THE STATE COULD ENACT NO LAW
WHICH WOULD CONFLICT WITH THE POWERS RESERVED TO THE UNITED STATES BY
THE CONSTITUTION.  FT. LEAVENWORTH R. CO. V. LOWE, 114 U.S. 525, 539;
UTAH POWER & LIGHT CO. V. UNITED STATES, 243 U.S. 389, 404.  SUCH
AUTHORITY DID NOT PASS TO THE UNITED STATES BY VIRTUE OF THE PROVISIONS
OF ARTICLE I, SEC. 8, CL. 17 OF THE CONSTITUTION, WHICH AUTHORIZE IT
"TO EXERCISE EXCLUSIVE LEGISLATION  ...  OVER ALL PLACES PURCHASED BY
THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL
BE." 

SINCE THE UNITED STATES DID NOT PURCHASE THE LANDS WITH THE CONSENT
OF THE STATE, IT DID NOT ACQUIRE EXCLUSIVE JURISDICTION UNDER THE
CONSTITUTIONAL PROVISION, AND THERE HAS BEEN NO CESSION OF JURISDICTION
BY THE STATE.  SURPLUS TRADING CO. V. COOK, 281 U.S. 647, 651; MASON
CO. V. TAX COMM'N, SUPRA, 210.  ALTHOUGH ARKANSAS HAS, BY SEC. 5647,
POPE'S DIGEST, CONFERRED ON CONGRESS POWER TO PASS LAWS, CIVIL AND
CRIMINAL, FOR THE ADMINISTRATION AND CONTROL OF LANDS ACQUIRED BY THE
UNITED STATES IN ARKANSAS, IT HAS CEDED EXCLUSIVE LEGISLATIVE
JURISDICTION NEITHER OVER LANDS RESERVED BY THE UNITED STATES FROM THE
PUBLIC DOMAIN NOR OVER LANDS ACQUIRED IN THE STATE.  FT. LEAVENWORTH R.
CO. V. LOWE, SUPRA, 530, 531.  IT FOLLOWS THAT THE STATE HAS RETAINED
ITS LEGISLATIVE JURISDICTION, WHICH IT ACQUIRED BY STATEHOOD, OVER
PUBLIC LANDS WITHIN THE STATE, WHICH HAVE BEEN INCLUDED WITHIN THE
FOREST RESERVE. 

WE CONCLUDE THAT THE STATE HAS LEGISLATIVE JURISDICTION OVER THE
FEDERAL FOREST RESERVE LANDS LOCATED WITHIN IT, WHETHER THEY WERE
ORIGINALLY A PART OF THE PUBLIC DOMAIN OF THE UNITED STATES, OR WERE
ACQUIRED BY THE UNITED STATES BY PURCHASE, AND THAT THE TAX ASSESSED
AGAINST PLAINTIFFS IS NOT SUBJECT TO ANY CONSTITUTIONAL INFIRMITY, OR
TO ANY WANT OF TAXING JURISDICTION OF THE STATE TO LAY IT WITH RESPECT
TO TRANSACTIONS ON THE FEDERAL FOREST RESERVE LOCATED WITHIN THE
STATE. 

THE JUDGMENT IS REVERSED INSOFAR AS IT ADJUDGED PLAINTIFFS NOT LIABLE
FOR THE TAX ON SEVERANCE OF TIMBER FROM LANDS HELD BY THE UNITED STATES
AS ORIGINAL OWNER, AND THE CAUSE IS REMANDED TO THE SUPREME COURT OF
ARKANSAS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
IN ALL OTHER RESPECTS THE JUDGMENT IS AFFIRMED.  ON THE REMAND THE
STATE COURTS WILL BE FREE, SO FAR AS THEIR OWN PRACTICE ALLOWS, TO
DETERMINE ANY STATE QUESTIONS HERE INVOLVED AND ANY FEDERAL QUESTIONS
NOT ALREADY DECIDED BY THIS OPINION.  COMPARE SCHUYLKILL TRUST CO. V.
PENNSYLVANIA, 302 U.S. 506, WITH SCHUYLKILL TRUST CO. V. PENNSYLVANIA,
296 U.S. 113.  SO ORDERED. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

OPINION OF MR. JUSTICE RUTLEDGE, DISSENTING, ANNOUNCED BY THE CHIEF
JUSTICE. 

IN NO. 328 THE COURT SUSTAINS THE APPLICATION OF THE ARKANSAS
SEVERANCE TAX TO THE APPELLANTS.  FN1  IN MY JUDGMENT THE CAUSE SHOULD
BE REMANDED TO THE STATE COURT FOR IT TO DETERMINE THE APPLICABILITY OF
THE LIEN AND COLLECTION PROVISIONS TO THE UNITED STATES, OR THEIR
SEVERABILITY, AND IN THE LIGHT OF THAT DETERMINATION TO ASCERTAIN THE
CONSTITUTIONAL VALIDITY OF THE TAX AS APPLIED TO APPELLANTS.  THOSE
ISSUES ARE INESCAPABLE ON THE RECORD IN THIS CASE.  FOR UNTIL THEY ARE
DETERMINED ANY DECISION HERE CAN AFFECT ONLY A TAX OF UNCERTAIN
INCIDENCE, UNLESS THE COURT IN SUSTAINING IT MEANS TO RULE, AS I THINK
THE ARKANSAS COURT RULED, THAT THE TAX IS VALID WHETHER OR NOT THE
STATUTE'S LIEN AND COLLECTION PROVISIONS  FN2  APPLY TO THE UNITED
STATES AS OWNER OF THE LAND AND THE SEVERED TIMBER. 

NEITHER COURSE IS PROPERLY OPEN TO US.  SINCE THE ARKANSAS COURT, AS
THIS COURT'S OPINION DOES NOT DISPUTE, HAS SUSTAINED THE TAX WITHOUT
DECIDING WHETHER THE LIEN AND COLLECTION PROVISIONS ARE SEVERABLE AND
INAPPLICABLE TO THE UNITED STATES, WE ARE COMPLETELY AT LOSS TO KNOW
WHETHER THE TAX RESTS ULTIMATELY UPON THE GOVERNMENT, AS IT DOES UNDER
ARKANSAS LAW ON ALL OTHER OWNERS NOT EXPRESSLY EXEMPTED.  CONSEQUENTLY
WE HAVE NO DETERMINABLE ISSUE, BUT ONLY A SPECULATIVE INQUIRY OF A SORT
BEYOND THE TRADITION AND, IN MY OPINION, THE JURISDICTION OF THIS COURT
TO DECIDE.  ON THE OTHER HAND, IF THE EFFECT OF THE DECISION HERE, AS
IN THE ARKANSAS COURT, IS TO SUSTAIN THE TAX REGARDLESS OF WHETHER THE
LIEN AND COLLECTION PROVISIONS APPLY IN WHOLE OR IN PART TO THE UNITED
STATES, THE RESULT IS SUBSTANTIALLY TO SUSTAIN A TAX LAID BY THE STATE
DIRECTLY ON THE GOVERNMENT.  THIS RESULT IS AS UNACCEPTABLE AS TO
RENDER AN ADVISORY OPINION UPON THE VALIDITY OF A TAX OF UNCERTAIN AND
SPECULATIVE APPLICATION.    FROM MCCULLOCH V. MARYLAND, 4 WHEAT.  316,
TO NOW THE RULE HAS REMAINED THAT THE STATES ARE WITHOUT POWER, ABSENT
THE CONSENT OF CONGRESS, TO TAX THE UNITED STATES, WHETHER WITH
REFERENCE TO ITS PROPERTY OR ITS FUNCTIONS.  UNITED STATES V. ALLEGHENY
COUNTY, 322 U.S. 174, 177.  THAT RULE IS OF THE ESSENCE OF FEDERAL
SUPREMACY.  IT IS NOT TO BE CHIPPED AWAY BY AMBIGUOUS DECISIONS OF
STATE COURTS OR EASY ASSUMPTIONS RELATING TO THEIR EFFECTS WHICH IGNORE
THE DIRECT IMPACT OF STATE TAXES WHERE THEY HAVE NO RIGHT TO STRIKE. 

THIS IS TRUE REGARDLESS OF THE VAGARIES OF DECISION, AT DIFFERENT
PERIODS, IN ALLOWING EXPANSION OF THE GOVERNMENT'S IMMUNITY TO INCLUDE
OTHERS.  RECENT RECESSIONS FROM FORMER BROAD EXTENSIONS OF THIS KIND
HAVE SETTLED THAT ULTIMATE ECONOMIC INCIDENCE UPON THE GOVERNMENT OF A
STATE TAX LAID UPON OTHERS IS NOT ALONE ENOUGH TO INVALIDATE THE TAX. 
JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134; ALABAMA V. KING & BOOZER,
314 U.S. 1; SEE PENN DAIRIES V. MILK CONTROL COMM'N, 318 U.S. 261,
269.  FN3  BUT THIS DOES NOT MEAN EITHER THAT SUCH INCIDENCE OF THE TAX
IS IRRELEVANT TO ITS VALIDITY OR THAT ALL STATE TAXES PURPORTING TO BE
LAID UPON OTHERS BUT IN FACT REACHING THE GOVERNMENT ARE VALID. 

IT IS STILL TRUE THAT "THE TAXPAYER IS THE PERSON ULTIMATELY LIABLE
FOR THE TAX ITSELF."  COLORADO BANK V. BEDFORD, 310 U.S. 41, 52;
FEDERAL LAND BANK V. BISMARCK, 314 U.S. 95.  IF THE PERSON WHO MUST PAY
THE TAX IN THE FIRST PLACE IS REQUIRED BY THE TAXING STATUTE TO COLLECT
THE TAX OR AN EQUIVALENT AMOUNT FROM THE UNITED STATES, THE TAX IS UPON
THE UNITED STATES.  "STATE LAW COULD NOT OBLIGATE THE CENTRAL
GOVERNMENT TO REIMBURSE FOR A VALID TAX, MUCH LESS FOR AN INVALID
ONE."  UNITED STATES V. ALLEGHENY COUNTY, 322 U.S. 174, 189.  ALTHOUGH
THE COURT HAS GONE FAR IN PERMITTING THE STATES TO FORCE ONE PRIVATE
PERSON TO ACT AS TAX COLLECTOR FOR ANOTHER, CF. MONAMOTOR OIL CO. V.
JOHNSON, 292 U.S. 86; FELT & TARRANT MFG. CO. V. GALLAGHER, 306 U.S.
62; GENERAL TRADING CO. V. IOWA TAX COMM'N, 322 U.S. 335, AND
DISSENTING OPINION AT 339, THAT DEVICE CANNOT BE UTILIZED BY THE STATES
TO LAY TAXES ON THE UNITED STATES.  NOR HAS IT BEEN HELD HERETOFORE, IF
IT IS NOW, THAT A TAX PURPORTING TO BE LAID UPON A PRIVATE INDIVIDUAL
OR CONCERN IS VALID REGARDLESS OF WHETHER THE PROVISIONS OF THE STATE
TAXING STATUTE FOR PASSING ON THE TAX TO ANOTHER ARE APPLICABLE TO THE
UNITED STATES OR ARE VALID IF SO APPLIED. 

I AM UNABLE TO COMPREHEND THE EFFECT OF THE COURT'S DECISION.  IF IT
IS RULING SUB SILENTIO OR EX HYPOTHESI THAT THE LIEN AND COLLECTION
PROVISIONS OF THE ARKANSAS STATUTE, FOR ANY APPLICATION TO THE
GOVERNMENT, ARE INAPPLICABLE OR SEVERABLE, WE HAVE NO RIGHT TO MAKE
SUCH A DECISION.  THAT IS THE BUSINESS OF THE ARKANSAS COURTS.  IF THE
RULING IS THAT THE TAX IS VALID EVEN THOUGH THOSE PROVISIONS ARE
APPLICABLE TO THE UNITED STATES, THEN FOR THE FIRST TIME THE COURT IS
OVERRULING THE BASIC PRINCIPLE OF MCCULLOCH V. MARYLAND.  IF THE
DECISION IS, FINALLY, THAT THE TAX IS VALID WHETHER OR NOT THE LIEN AND
COLLECTION PROVISIONS ARE APPLICABLE OR SEVERABLE, THEN IT EMBODIES
BOTH FAULTS. 

I DO NOT THINK THE COURT MEANS TO OVERRULE MCCULLOCH V. MARYLAND. 
NOR DOES IT PURPORT TO INTERPRET OR DETERMINE THE ARKANSAS LAW
CONCERNING EITHER APPLICABILITY OR SEVERABILITY OF THE STATUTE'S
PROVISIONS.  BUT UNLESS IT IS DOING THIS, WITHOUT SO STATING, I SEE NO
ESCAPE FROM THE OTHER HORN OF THE DILEMMA.  EITHER THE TAX AS APPLIED
IS VALID OR IT IS INVALID.  WHETHER IT IS VALID OR NOT DEPENDS ON
WHETHER THE LIEN AND COLLECTION PROVISIONS APPLY TO THE UNITED STATES,
FOR THEY PLACE THE TAX DIRECTLY UPON THE OWNER.  THAT ISSUE IS
INESCAPABLE IN THIS CASE, WHETHER IN THE ARKANSAS COURT OR HERE. 

I DO NOT THINK THE ARKANSAS COURT DECIDED EITHER THAT THE LIEN AND
COLLECTION PROVISIONS ARE INAPPLICABLE TO THE UNITED STATES OR THAT
THEY ARE SEVERABLE FROM THE REMAINDER OF THE STATUTE, NOTWITHSTANDING
IT HAD THOSE PROVISIONS BEFORE IT, CITED THEM THOUGH WITHOUT RULING
UPON THEM, AND PROCEEDED TO SUSTAIN THE APPLICATION OF THE TAX TO
APPELLANTS.  I THINK IT CLEAR THAT THE COURT AVOIDED MAKING SUCH A
RULING.  IN MY OPINION THE ARKANSAS DECISION IN EFFECT, THOUGH NOT IN
WORDS, WAS THAT THE TAX IS VALID REGARDLESS OF WHETHER THE ENFORCEMENT
PROVISIONS APPLY TO THE UNITED STATES; WHICH IN EFFECT WAS TO RULE THAT
THE TAX HAD BEEN CONSTITUTIONALLY APPLIED EVEN THOUGH THE COLLECTION
PROVISIONS ARE APPLICABLE TO THE UNITED STATES, TO THE EXTENT AT LEAST
OF THE WITHHOLDING PROVISIONS. 

MY REASONS FOR THIS VIEW ARE SEVERAL.  IN THE FIRST PLACE, THE
COURT'S OPINION, THOUGH NOTING THE COLLECTION AND LIEN PROVISIONS AND
THE CONTRACT'S TERM THAT TITLE TO THE SEVERED TIMBER SHOULD REMAIN IN
THE GOVERNMENT "UNTIL IT HAS BEEN PAID FOR, AND SCALED, MEASURED OR
COUNTED," DOES THIS IN THE INTRODUCTORY STATEMENT OF THE CASE AND THEN
PROCEEDS THROUGH A LENGTHY DISCUSSION WITHOUT AGAIN REFERRING TO THOSE
PROVISIONS. 

MOREOVER THEY PROVIDE PLAINLY THAT WHERE THE SEVERER IS DIFFERENT
FROM THE OWNER, THE FORMER MUST PAY THE TAX BUT HE IS REQUIRED TO PASS
IT ON TO THE OWNER.  FN4  A FURTHER PROVISION REQUIRES HIM TO WITHHOLD
THE AMOUNT OF THE TAX FROM ANY MONEY OR SEVERED PROPERTY IN KIND DUE
THE OWNER UNDER THEIR CONTRACT.  FN5  ANOTHER SECTION GIVES THE STATE A
LIEN ON THE SEVERED RESOURCES FOR THE TAX AND PENALTIES.  FN6  THE
CLEAR EFFECT OF THE PROVISIONS REQUIRING "THE REPORTING TAXPAYER" TO
"COLLECT OR WITHHOLD" THE AMOUNT OF THE TAX FROM THE OWNER IS TO GIVE
HIM A DEFENSE TO THE OWNER'S ACTION TO RECOVER THE FULL CONTRACT PRICE
FOR THE SEVERED RESOURCES AND AN EQUALLY CLEAR RIGHT OF ACTION AGAINST
THE OWNER FOR THE AMOUNT OF THE TAX. 

THUS THE SCHEME OF THE TAX IS TO PLACE BOTH ITS ULTIMATE LEGAL AND
ITS ULTIMATE ECONOMIC INCIDENCE ON THE OWNER.  THE TAX IN TERMS IS "DUE
BY THE RESPECTIVE OWNERS OF SUCH NATURAL RESOURCES."  FN7  IT IS "A
PRIVILEGE TAX OR LICENSE TAX; AND IS LEVIED ON THE BUSINESS OF
SEVERING," AS THE ARKANSAS COURT DECLARED IN THIS CASE.  208 ARK. 459,
468, 187 S.W.2D 7, 12.  BUT IT IS ULTIMATELY, AS THAT COURT HAS ALSO
DECLARED, THOUGH NOT EXPRESSLY IN THIS CASE, A PRIVILEGE OR LICENSE TAX
LEVIED UPON THE OWNER'S BUSINESS OF SEVERING, FOR IT APPLIES TO HIM
WHENEVER HE SEVERS OR PERMITS SEVERANCE FOR SALE; AND "SALE" INCLUDES
TURNING OVER THE TIMBER TO ONE WHO CLEARS THE LAND AS PAYMENT FOR THE
CLEARING, ALTHOUGH HIS PURPOSE IN DOING THIS IS ONLY TO MAKE THE SOIL
AVAILABLE FOR TILLING.  FN8 

MOREOVER, AS THE ARKANSAS COURT DID HOLD SPECIFICALLY IN THIS CASE,
THE ACT CONTAINS ONLY TWO EXEMPTIONS, NEITHER OF WHICH APPLIES TO THE
UNITED STATES.  FN9  AND ON THIS GROUND, TOGETHER WITH THE MAXIM
EXPRESSIO UNIUS, IT RULED THE ACT APPLICABLE TO THE SEVERANCE OF TIMBER
"IN ALL INSTANCES EXCEPT THE TWO EXEMPTIONS MENTIONED."  FN10 

THAT RULING, IT SEEMS TO ME, IS ESPECIALLY SIGNIFICANT WHEN IT IS
CONSIDERED NOT ONLY IN THE LIGHT OF THE COURT'S FAILURE TO MAKE FURTHER
REFERENCE TO OR RULING UPON THE COLLECTION PROVISIONS, BUT ALSO IN VIEW
OF THE ARKANSAS COURT'S PREVIOUS DECISIONS.  THUS, IN MILLER LUMBER CO.
V. FLOYD, 169 ARK. 473, 480, 275 S.W. 741, THE COURT HELD:  "WHERE A
LANDOWNER MAKES A CONTRACT WITH ANOTHER PERSON TO CUT AND REMOVE THE
TIMBER FROM HIS LAND FOR SALE OR COMMERCIAL PURPOSES, THE OWNER MUST
PAY THE SEVERANCE TAX; FOR SUCH CONTRACTOR AND HIS SERVANTS WHO
ACTUALLY SEVER THE TIMBER ACT FOR THE OWNER IN THE PREMISES, AND THEIR
ACT OF SEVERING THE TIMBER IS THE ACT OF THE OWNER."  FN11 

NO REFERENCE WAS MADE IN THIS CASE TO THE MILLER CASE.  IN THE
ABSENCE OF ONE WE CANNOT ASSUME THAT THE COURT INTENDED TO OVERRULE
THAT DECISION OR TO DESTROY ITS RATIONALIZATION OR UNIVERSAL
APPLICABILITY, EXCEPT FOR THE SPECIFIC EXEMPTIONS.  NOT ONLY THE
OPINION IN THIS CASE, AS MUCH BY ITS OMISSIONS AS BY WHAT IT EXPRESSLY
RULES, BUT ALSO THE ARKANSAS COURT'S PRIOR DECISIONS, GIVE EVERY GROUND
FOR BELIEVING THAT IT DID NOT INTEND EITHER TO APPLY THE TAX
DIFFERENTLY IN THIS CASE THAN IN ANY OTHER OR TO OVERRULE ITS PRIOR
DETERMINATIONS OF THE ULTIMATE NATURE, CHARACTER AND INCIDENCE OF THE
TAX.  FN12 

THE MAJORITY SEEM TO IMPLY HOWEVER THAT THIS MAY BE EXACTLY WHAT WAS
DONE; THAT PERHAPS THE ARKANSAS COURT HELD THAT SINCE THE TAX WOULD BE
UNCONSTITUTIONAL IF, AS THE STATUTE CONTEMPLATES, IT WERE DIRECTLY
PLACED UPON THE GOVERNMENT AS OWNER, IT WOULD TREAT THE TAX AS FALLING
NOT ON THE GOVERNMENT BUT ON THE SEVERER ALONE.  AS HAS BEEN STATED,
NOTHING IN THAT COURT'S OPINION SUGGESTS SUCH A RULING.  AND IF THERE
WERE EITHER A RULING OR A SUFFICIENT SUGGESTION OF THIS SORT, IT WOULD
RAISE OTHER SERIOUS QUESTIONS, NOT CONSIDERED BY THAT COURT OR HERE,
CONCERNING THE VALIDITY OF THE TAX.  THE EFFECT OF SUCH A HOLDING WOULD
SEEM TO BE TO SINGLE OUT CONTRACTORS WITH THE GOVERNMENT FOR THE
IMPOSITION OF A TAX NOT PLACED ON OTHER SEVERERS.  ALL OTHER
CONTRACTORS, BY THE TERMS OF THE STATUTE AND THE ARKANSAS DECISIONS,
WOULD BE REQUIRED TO PASS THE TAX ALONG TO OWNERS.  ONLY CONTRACTORS
WITH THE GOVERNMENT WOULD NOT BE ALLOWED OR REQUIRED TO DO THIS.  THUS
TO TREAT THE TAX AS APPLICABLE ONLY TO THE SEVERER IN THIS CASE, AND
THE COLLECTION PROVISIONS AFFECTING THE OWNER AS SEVERABLE AND
INAPPLICABLE, WOULD RAISE SERIOUS QUESTIONS OF DISCRIMINATION, WHICH
NEITHER THE ARKANSAS COURT NOR THIS COURT HAS CONSIDERED AND WHICH
APPELLANTS ARE ENTITLED TO HAVE DETERMINED. 

IT IS TRUE THAT THEY HAVE NOT RAISED HERE ANY QUESTION OF
DISCRIMINATORY ENFORCEMENT.  BUT THIS IS BECAUSE THEY HAD NO REASON TO
BELIEVE THAT THE ARKANSAS COURT HAD APPLIED, OR WOULD APPLY, THE
STATUTE DIFFERENTLY TO THEM THAN TO OTHERS OR TO ANTICIPATE THE
CHARACTER OF THE RULING NOW MADE.  IT IS DOUBTFUL, TO SAY THE LEAST,
THAT THE ARKANSAS LEGISLATURE COULD PLACE A SEVERANCE TAX EXCLUSIVELY
UPON PERSONS WHO SEVER RESOURCES FROM GOVERNMENTALLY OWNED LAND.  THE
SAME DOUBT WOULD APPLY TO THE STATE COURT'S EFFORT TO MAKE THE STATUTE
SO EFFECTIVE, WERE IT TO UNDERTAKE DOING THIS.  IN MY JUDGMENT IT HAS
NOT DONE SO.  WHETHER OR NOT SUCH AN EFFORT ULTIMATELY WOULD BE
SUCCESSFUL, APPELLANTS ARE ENTITLED TO BE HEARD UPON THE QUESTION
BEFORE THAT RESULT IS ACHIEVED.  THEY SHOULD NOT BE DEPRIVED OF THIS
OPPORTUNITY THROUGH THIS COURT'S UPHOLDING OF AN AMBIGUOUSLY APPLICABLE
STATUTE OR IN ADVANCE OF A DECISION BY THE ONLY COURT WHICH CAN REMOVE
THE AMBIGUITY.  BECAUSE THE ARKANSAS COURT HAS NOT PASSED UPON
APPLICABILITY OR SEVERABILITY OF THE COLLECTION PROVISIONS AS THEY
AFFECT THE OWNER, AND BECAUSE IT HAS NOT DETERMINED THE VALIDITY OF THE
TAX AS APPLIED IN THE LIGHT OF SUCH A DETERMINATION, I THINK THE CAUSE
SHOULD BE REMANDED TO IT, SO THAT THE FORMER QUESTIONS MAY BE
AUTHORITATIVELY DETERMINED BEFORE WE UNDERTAKE TO DECIDE, UPON THE
WHOLLY SPECULATIVE BASIS NOW PRESENTED, WHETHER THE TAX AS APPLIED IS
VALID. 

FN1  ON THE JURISDICTIONAL DISCUSSION OF THE COURT THE APPELLANTS
ARE, OF COURSE, PETITIONERS ON CERTIORARI. 

FN2  POPE'S DIGEST ARK. (1937) SECS. 13371-13395.  THE STATUTE WAS
FIRST ENACTED IN 1923.  ACTS OF ARKANSAS, 1923, ACT 118.  IT WAS
MATERIALLY AMENDED IN 1929, BUT ITS ESSENTIAL SCHEME REMAINED THE
SAME.  ACTS OF ARKANSAS, 1929, ACT 283.  SEE NOTES 4-6, 9-12, AND TEXT,
FOR THE SUBSTANCE AND EFFECTS OF THE PROVISIONS. 

ALTHOUGH, AS I READ ITS OPINION, THE ARKANSAS COURT CAREFULLY
REFRAINED FROM RULING UPON THEIR SEVERABILITY AND THEREFORE ALSO THEIR
APPLICABILITY TO THE GOVERNMENT (SEE TEXT INFRA), THE LIEN AND
COLLECTION PROVISIONS WERE BEFORE IT, WERE CITED IN THE OPINION, AND
WERE NECESSARILY INVOLVED IN THE ISSUES PRESENTED.  THE COURT APPEARS
TO HAVE RULED THAT THE TAX IS VALID AS APPLIED TO THE APPELLANTS
REGARDLESS OF WHETHER THESE PROVISIONS ARE SEVERABLE OR ARE APPLICABLE
TO THE UNITED STATES.  THAT IT DID SO FURNISHES NO GROUND FOR BELIEVING
THAT THE ISSUES RELATING TO THEM WERE NOT PRESENTED OR WERE WAIVED. 
THE PETITION FOR REHEARING, AS WELL AS THE OPINION ITSELF, DEMONSTRATES
THE CONTRARY.  THE FIRST GROUND SET FORTH WAS:  "THE COURT ERRED IN
HOLDING THAT THE TAX WAS NOT A DIRECT TAX ON THE UNITED STATES." 

FN3  SEE POWELL, THE WANING OF INTERGOVERNMENTAL TAX IMMUNITIES
(1945) 58 HARV. L. REV. 633; POWELL, THE REMNANT OF INTERGOVERNMENTAL
TAX IMMUNITIES (1945) 58 HARV. L. REV. 757. 

FN4  POPE'S DIGEST ARK. SEC. 13382 PROVIDES:  "THE REPORTING TAXPAYER
SHALL COLLECT OR WITHHOLD OUT OF THE PROCEEDS OF THE SALE OF THE
PRODUCTS SEVERED THE PROPORTIONATE PARTS OF THE TOTAL TAX DUE BY THE
RESPECTIVE OWNERS OF SUCH NATURAL RESOURCES AT THE TIME OF SEVERANCE." 

FN5  THE PROVISION READS:  "EVERY PRODUCER ACTUALLY OPERATING ANY OIL
OR GAS WELL, QUARRY OR OTHER PROPERTY FROM WHICH NATURAL RESOURCES ARE
SEVERED, UNDER CONTRACT OR AGREEMENT REQUIRING PAYMENT DIRECT TO THE
OWNER OF ANY ROYALTY, EXCESS ROYALTY OR WORKING INTEREST, EITHER IN
MONEY OR IN KIND, IS HEREBY AUTHORIZED, EMPOWERED AND REQUIRED TO
DEDUCT FROM ANY SUCH ROYALTY OR OTHER INTEREST THE AMOUNT OF THE
SEVERANCE TAX HEREIN LEVIED BEFORE MAKING SUCH PAYMENT."  POPE'S DIGEST
ARK. SEC. 13382. 

"PRODUCER" IS DEFINED AS EVERY PERSON, FIRM, CORPORATION OR
ASSOCIATION OF PERSONS "ENGAGED IN THE BUSINESS OF MINING, CUTTING OR
OTHERWISE SEVERING FROM THE SOIL OR WATER FOR COMMERCIAL PURPOSES
NATURAL RESOURCES, INCLUDING MINERALS AND ORES, PEARLS, DIAMONDS, AND
OTHER PRECIOUS STONES, BAUXITE, FULLER'S EARTH, PHOSPHATES, SHELLS,
CHALK, CEMENT, CLAY, SAND, GRAVEL, ASPHALT, OCHRE, OIL, GAS, SALT,
SULPHUR, LIGNITE, COAL, MARBLE, STONES AND STONE PRODUCTS, TIMBER,
TURPENTINE AND ALL OTHER FOREST PRODUCTS AND ALL OTHER NATURAL PRODUCTS
OF THE SOIL OR WATER OF ARKANSAS."  POPE'S DIGEST ARK. SEC. 13371. 
FN6  POPE'S DIGEST ARK. SEC. 13376:  "THE STATE OF ARKANSAS SHALL HAVE
A LIEN UPON ANY AND ALL NATURAL RESOURCES SEVERED FROM THE SOIL OR
WATER FOR THE TAX AND PENALTIES HEREIN IMPOSED AND, IN ADDITION
THERETO, SAID LIEN SHALL ATTACH TO THE WELL, MACHINERY, TOOLS AND
IMPLEMENTS USED IN SEVERING OF SUCH RESOURCES." 

AS THE SECTION WAS ENACTED ORIGINALLY IN 1923 THE PROVISION FOR
ATTACHMENT OF THE LIEN TO MACHINERY, ETC., USED IN SEVERING WAS NOT
INCLUDED.  THIS WAS ADDED BY AMENDMENT IN 1929.  CF. NOTE 2. 

FN7  SEE NOTE 4.    FN8  SEE NOTE 11. 

FN9  ONE WAS FOR THE INDIVIDUAL OWNER WHO OCCASIONALLY SEVERS IN
ORDER TO BUILD OR REPAIR IMPROVEMENTS ON THE PREMISES OR FOR HIS OWN
USE AND ANOTHER FOR THE "PRODUCER OF SWITCH TIES" WHO HEWS THEM OUT
ENTIRELY BY HAND.  208 ARK. 459, 463, 187 S.W.2D 7, 10. 

FN10  THE DECISION HELD THE TAX INVALID AS APPLIED TO THE SEVERANCE
FROM LANDS HELD BY THE UNITED STATES AS ORIGINAL OWNER, THOUGH NOT AS
TO THOSE PURCHASED WITH THE STATE'S CONSENT. 

FN11  THE EFFECT OF THE QUOTED STATEMENT IS EMPHASIZED BY ITS
CONTEXT, IN PART AS FOLLOWS:  "IT IS APPARENT THEN THAT THE OWNER OF
LANDS, WHO CUTS DOWN TREES FOR THE PURPOSE OF BUILDING FENCES OR
REPAIRING AND CONSTRUCTING HOUSES AND OTHER IMPROVEMENTS ON THE LAND
FROM THE TIMBER THUS SEVERED FROM THE SOIL IS EXEMPTED FROM PAYING THE
TAX.  IT IS EQUALLY EVIDENT THAT WHEN THE TIMBER SEVERED FROM THE SOIL
IS SOLD, IT FALLS WITHIN THE TERMS OF THE ACT, AND THE TAX MUST BE PAID
BY SOMEONE.  TO ILLUSTRATE:  IF THE OWNER OF TIMBER LANDS DESIRED TO
SEVER IT FOR THE PURPOSE OF CLEARING THE LAND AND PUTTING IT IN
CULTIVATION AND HIRED OTHER PERSONS TO SEVER THE TIMBER FOR HIM, HE
WOULD BE REQUIRED TO PAY THE SEVERANCE TAX.  IF THE OWNER SHOULD LEASE
HIS LAND TO ANOTHER PERSON FOR A DESIGNATED NUMBER OF YEARS IN ORDER TO
HAVE HIS LESSEE CLEAR THE LAND AND PUT IT IN CULTIVATION, AND IF THE
CONSIDERATION FOR THE LEASE IN WHOLE OR IN PART WAS THAT THE LESSEE
SHOULD HAVE THE TIMBER SO REMOVED FROM THE LAND, THE SEVERANCE TAX
WOULD HAVE TO BE PAID BY SUCH LESSEE.  IT WILL BE NOTED THAT THE
LANGUAGE OF THE ACT IS SPECIFIC ON THIS SUBJECT AND PROVIDES THAT THE
SEVERER OR PRODUCER AS HE IS CALLED SHALL PAY THE TAX.  THE ACT IS VERY
BROAD AND COMPREHENSIVE, AND IS LEVIED UPON ALL PERSONS ENGAGED IN
SEVERING THE TIMBER FROM THE SOIL FOR SALE OR COMMERCIAL PURPOSES,
REGARDLESS OF THE PURPOSE FOR WHICH IT IS DONE.  THE ONLY EXCEPTION IS
THAT THE TAX SHALL NOT BE PAID WHERE THE TIMBER SEVERED IS ACTUALLY
USED IN ERECTING OR REPAIRING STRUCTURES AND OTHER IMPROVEMENTS ON THE
LAND.  THE APPLICATION OF THE TIMBER IN PART PAYMENT FOR CLEARING THE
LAND IS A SEVERING OF IT FOR COMMERCIAL PURPOSES, ALTHOUGH THE PRIMARY
PURPOSE OF SEVERING IT IS TO ENABLE THE LAND TO BE PUT IN CULTIVATION. 
WHERE A LANDOWNER MAKES A CONTRACT WITH ANOTHER PERSON TO CUT AND
REMOVE THE TIMBER FROM HIS LAND FOR SALE OR COMMERCIAL PURPOSES, THE
OWNER MUST PAY THE SEVERANCE TAX; FOR SUCH CONTRACTOR AND HIS SERVANTS
WHO ACTUALLY SEVER THE TIMBER ACT FOR THE OWNER IN THE PREMISES, AND
THEIR ACT OF SEVERING THE TIMBER IS THE ACT OF THE OWNER." 

IN A PREVIOUS APPEAL IN THE SAME CASE, 160 ARK. 17, 254 S.W. 450, THE
COURT HAD SUSTAINED THE ACT AS CONSTITUTIONAL ON THE THEORY THAT IT WAS
A PRIVILEGE TAX AND NOT A PROPERTY TAX. 

FN12  THIS VIEW IS SUSTAINED ALSO BY THE COURT'S EXPRESSED VIEW THAT
"IMPOSITION OF THE TAX HERE DOES NOT IN ANY SENSE INTERFERE WITH THE
GOVERNMENT'S BUSINESS."  208 ARK. 459, 468, 187 S.W.2D 7, 12.  THE
STATEMENT COULD MEAN THAT THE TAX WOULD NOT BE APPLIED TO THE
GOVERNMENT AS TO OTHER OWNERS, IN WHICH EVENT A SEVERANCE OF THE
COLLECTION PROVISIONS WOULD BE IMPLIED.  THAT IT DOES NOT HAVE THIS
MEANING IS EVIDENCED, I THINK, BY THE COURT'S RELIANCE ON JAMES V.
DRAVO CONTRACTING CO., SUPRA, WHERE QUITE DIFFERENT STATUTORY
PROVISIONS WERE IN QUESTION.  THE COURT'S MISAPPLICATION OF THE DRAVO
CASE WAS, I THINK, BUT A REFLECTION OF ITS IMPLICIT IDEA THAT THE TAX
WOULD BE VALID SINCE IT WAS COLLECTED IMMEDIATELY FROM THE APPELLANTS,
EVEN THOUGH THEY MIGHT PASS ON ITS ECONOMIC BURDEN TO THE GOVERNMENT,
WITHOUT REGARD TO HOW THAT MIGHT BE DONE. 
..END :


















DUGGAN V. SANSBERRY, 327 U.S. 499 


ARGUED FEBRUARY 6, 1946.  - DECIDED MARCH 4, 1946.  - 149 F.2D 548,
REVERSED. 


1.  IN A FEDERAL COURT IN WHICH A PETITION FOR REORGANIZATION OF A
CORPORATION UNDER CHAPTER X OF THE BANKRUPTCY ACT HAD BEEN APPROVED AND
REORGANIZATION PROCEEDINGS WERE PENDING, A PETITION WAS FILED FOR
REORGANIZATION UNDER CHAPTER X OF AN ALLEGED SUBSIDIARY AGAINST WHICH A
BANKRUPTCY PROCEEDING WAS THEN PENDING IN ANOTHER FEDERAL COURT.  THE
REORGANIZATION COURT ORDERED A STAY OF A SCHEDULED SALE OF THE PROPERTY
OF THE ALLEGED SUBSIDIARY IN THE BANKRUPTCY PROCEEDING.  HELD THAT THE
ORDER OF THE REORGANIZATION COURT WAS BINDING UPON THE BANKRUPTCY COURT
AND WAS NOT THERE SUBJECT TO COLLATERAL ATTACK.  PP. 501, 504. 

2.  IT WAS THE DUTY OF THE BANKRUPTCY COURT TO OBEY THE STAY ORDER OF
THE REORGANIZATION COURT, IRRESPECTIVE OF WHETHER THE PETITION FOR
REORGANIZATION OF THE ALLEGED SUBSIDIARY HAD BEEN PROPERLY FILED.  P.
504. 

3.  SINCE THE INTERESTED PARTIES HAD AN OPPORTUNITY IN THE
REORGANIZATION PROCEEDING TO SECURE A DETERMINATION OF THE QUESTION
WHETHER A PARENT-SUBSIDIARY RELATIONSHIP EXISTED BETWEEN THE
CORPORATIONS, THE SAME ISSUE SHOULD NOT BE TRIED COLLATERALLY IN THE
BANKRUPTCY PROCEEDING.  P. 507. 

4.  SECTION 149 OF THE BANKRUPTCY ACT, WHICH PROVIDES THAT "AN ORDER,
WHICH HAS BECOME FINAL, APPROVING A PETITION FILED UNDER THIS CHAPTER
SHALL BE A CONCLUSIVE DETERMINATION OF THE JURISDICTION OF THE COURT,"
CAN NOT BE CONSTRUED AS ALLOWING A COLLATERAL ATTACK IN THE BANKRUPTCY
COURT UPON THE PROCEEDINGS IN THE REORGANIZATION COURT.  P. 508. 

5.  UNDER ITS CONSTITUTIONAL POWER ON THE SUBJECT OF BANKRUPTCIES,
CONGRESS MAY PROSCRIBE COLLATERAL ATTACK IN BANKRUPTCY PROCEEDINGS ON
PROCEEDINGS INITIATED IN A REORGANIZATION COURT.  P. 510. 

DUGGAN, TRUSTEE, V. SANSBERRY, TRUSTEE. 

NO. 418.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT* . 

*TOGETHER WITH NO. 419, NATIONAL AIRCRAFT CORP. V. SANSBERRY,
TRUSTEE, ALSO ON CERTIORARI TO THE SAME COURT, ARGUED AND DECIDED ON
THE SAME DATES. 

CHRISTOPHER ENGINEERING COMPANY PETITIONED FOR REORGANIZATION UNDER
CHAPTER X OF THE BANKRUPTCY ACT IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF MISSOURI, WHICH APPOINTED DUGGAN AS TRUSTEE.  SUBSEQUENTLY,
AN INVOLUNTARY PETITION IN BANKRUPTCY WAS FILED BY ITS CREDITORS
AGAINST NATIONAL AIRCRAFT CORPORATION IN THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF INDIANA, WHICH APPOINTED SANSBERRY AS TRUSTEE. 
LATER AN ORDER WAS ENTERED DIRECTING THAT NATIONAL'S PROPERTY BE
OFFERED FOR PUBLIC SALE.  ON THE DAY BEFORE THE SALE, A PETITION WAS
FILED ON BEHALF OF NATIONAL IN THE REORGANIZATION PROCEEDINGS OF
CHRISTOPHER IN THE MISSOURI DISTRICT COURT, WHICH ISSUED A DECREE
FINDING THAT NATIONAL WAS A WHOLLY OWNED SUBSIDIARY OF CHRISTOPHER AND
ENJOINING THE SALE OF NATIONAL'S PROPERTY.  THE SALE NEVERTHELESS WAS
MADE, APPROVED AND CONFIRMED.  UPON PETITIONS FOR REVIEW FILED BY
DUGGAN AND THE NATIONAL AIRCRAFT CORPORATION, THE DISTRICT COURT
AFFIRMED THE REFEREE'S ORDER.  ITS DECISION WAS AFFIRMED BY THE CIRCUIT
COURT OF APPEALS.  149 F.2D 548.  THIS COURT GRANTED CERTIORARI.  326
U.S. 709.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS, P. 511. 

OPINION OF THE COURT BY MR. JUSTICE RUTLEDGE, ANNOUNCED BY MR.
JUSTICE MURPHY. 

THESE CASES INVOLVE, AS THE CIRCUIT COURT OF APPEALS SAID, 149 F.2D
548, "A CLASH OF JURISDICTION" BETWEEN TWO DISTRICT COURTS.  THEY RAISE
IMPORTANT QUESTIONS AS TO THE CONSTRUCTION OF CERTAIN SECTIONS OF
CHAPTER X OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 501 ET SEQ. TWO
CORPORATIONS, CHRISTOPHER ENGINEERING COMPANY AND NATIONAL AIRCRAFT
CORPORATION, ARE CONCERNED, AS IS THE QUESTION OF THEIR RELATIONSHIP AS
PARENT AND SUBSIDIARY CORPORATIONS. 

ON DECEMBER 27, 1943, CHRISTOPHER ENGINEERING COMPANY FILED A
PETITION FOR REORGANIZATION UNDER CHAPTER X IN THE DISTRICT COURT FOR
THE EASTERN DIVISION OF THE EASTERN JUDICIAL DISTRICT OF MISSOURI.  ON
THE SAME DAY THE PETITION WAS APPROVED AS PROPERLY FILED AND PETITIONER
DUGGAN WAS APPOINTED TRUSTEE.  APPROXIMATELY A MONTH LATER, JANUARY 21,
1944, AN INVOLUNTARY PETITION IN ORDINARY BANKRUPTCY WAS FILED BY ITS
CREDITORS AGAINST NATIONAL AIRCRAFT CORPORATION, WHICH PETITIONER
DUGGAN CLAIMS WAS A SUBSIDIARY OF CHRISTOPHER, IN THE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA.  FN1  A PETITION FOR THE
APPOINTMENT OF A RECEIVER IN BANKRUPTCY FOR NATIONAL WAS FILED AND
REFERRED TO A REFEREE WHO TOOK THE MATTER UNDER ADVISEMENT AFTER
HOLDING A HEARING AT WHICH DUGGAN, AS TRUSTEE OF CHRISTOPHER, APPEARED
BY HIS ATTORNEY.  ON FEBRUARY 7, 1944, THE INVOLUNTARY PETITION BEING
UNOPPOSED, THE REFEREE ENTERED AN ORDER OF ADJUDICATION, AND THE
FOLLOWING DAY APPOINTED RESPONDENT SANSBERRY AS RECEIVER.  ON MARCH 7,
1944, THE FIRST MEETING OF NATIONAL'S CREDITORS WAS HELD.  AT THAT
MEETING BROWN, ITS SECRETARY-TREASURER, TESTIFIED THAT IN DECEMBER,
1942, HE AND A.B. CHRISTOPHER  FN2  HAD PURCHASED ALL THE CAPITAL STOCK
OF NATIONAL AND THAT, ALTHOUGH THE CERTIFICATES HAD BEEN TURNED OVER TO
DUGGAN, "THERE IS NO REASON THAT HE (BROWN) KNOWS OF WHY SUCH CAPITAL
STOCK SHOULD BE CONSIDERED AS THE PROPERTY OF CHRISTOPHER ENGINEERING
COMPANY INSTEAD OF THE PROPERTY OF HIMSELF AND CHRISTOPHER,
INDIVIDUALLY."  AT THIS MEETING ALSO THE RECEIVER SANSBERRY WAS
SELECTED AS TRUSTEE IN BANKRUPTCY FOR NATIONAL. 

ON MARCH 21, 1944, SANSBERRY, ACTING AS TRUSTEE, FILED A PETITION FOR
AN ORDER AUTHORIZING HIM TO OFFER FOR SALE AND TO SELL THE TANGIBLE
PERSONAL PROPERTY AND THE REAL ESTATE BELONGING TO NATIONAL.  THE
REFEREE ORDERED THAT A MEETING OF CREDITORS BE HELD TO CONSIDER THIS
PETITION.  NOTICE OF THE MEETING WAS SENT TO DUGGAN AND ALSO TO THE
ATTORNEYS FOR BROWN.  THE MEETING WAS HELD ON APRIL 4, 1944.  NEITHER
DUGGAN NOR BROWN APPEARED.  NO OBJECTION TO THE PROPOSED SALE WAS MADE
EXCEPT BY THE UNITED STATES ARMY AIR FORCE, WHICH CLAIMED CERTAIN
PERSONAL PROPERTY.  BUT IT WAS EXPRESSLY STATED ON ITS BEHALF THAT
THERE WAS NO OBJECTION TO THE ENTERING OF AN ORDER FOR THE SALE
COVERING ANY OTHER PROPERTY OF NATIONAL.  ON APRIL 6 THE REFEREE
ENTERED AN ORDER DIRECTING THAT THE REAL AND PERSONAL PROPERTY OF
NATIONAL, WITH CERTAIN EXCEPTIONS, BE OFFERED FOR PUBLIC SALE ON APRIL
20, 1944.  NOTICE OF THE SALE WAS SENT TO DUGGAN AND BROWN AMONG
OTHERS. 

ON APRIL 19, THE DAY PRIOR TO THE SALE, A PETITION WAS FILED ON
BEHALF OF NATIONAL IN THE REORGANIZATION PROCEEDINGS OF CHRISTOPHER IN
THE MISSOURI DISTRICT COURT.  FN3  ON THE SAME DAY THAT COURT ISSUED AN
INJUNCTION AGAINST HOLDING THE SALE OF NATIONAL'S PROPERTY.  THE DECREE
CONTAINED A FINDING THAT NATIONAL IS A WHOLLY OWNED SUBSIDIARY OF THE
CHRISTOPHER ENGINEERING COMPANY. 

IMMEDIATELY PRECEDING THE SALE ON APRIL 20, COPIES OF THE INJUNCTION
ORDER WERE SERVED UPON SANSBERRY AND THE AUCTIONEER; BUT THEY PROCEEDED
WITH THE SALE.  ON MAY 3, AFTER THE TRUSTEE HAD FILED HIS REPORT TO THE
EFFECT THAT THE SALE HAD BEEN ADVANTAGEOUS AND AFTER A HEARING HAD BEEN
HELD, THE REFEREE APPROVED AND CONFIRMED THE SALE.  HE THEN GRANTED
PETITIONS FOR REVIEW OF THIS ORDER WHICH WERE FILED BY DUGGAN AND BY
THE NATIONAL AIRCRAFT CORPORATION PER BROWN.  FN4  THE DISTRICT COURT
AFFIRMED THE REFEREE'S ORDER, AS DID THE CIRCUIT COURT OF APPEALS, ONE
JUDGE CONCURRING SPECIALLY AND ONE DISSENTING.  149 F.2D 548.  WE
GRANTED CERTIORARI.  326 U.S. 709. 

THE CIRCUIT COURT OF APPEALS HELD, IN THE FIRST PLACE, THAT FOR THE
DISTRICT COURT IN MISSOURI TO OBTAIN JURISDICTION OVER NATIONAL AND ITS
ASSETS, IT HAD TO BE ESTABLISHED AS A "JURISDICTIONAL FACT" THAT
"NATIONAL WAS A SUBSIDIARY OF CHRISTOPHER, NOT ONLY ON APRIL 19, 1944,
BUT ON DECEMBER 27, 1943, WHEN CHRISTOPHER FILED ITS PETITION FOR
REORGANIZATION, AND ALSO ON JANUARY 21, 1944, WHEN THE INVOLUNTARY
PETITION IN BANKRUPTCY AGAINST NATIONAL WAS FILED (IN THE DISTRICT
COURT) IN INDIANA."  THIS FACT, THE COURT FOUND, HAD NOT BEEN
ESTABLISHED; FOR THE ORDER OF THE MISSOURI COURT DID NOT STATE THAT
CHRISTOPHER OWNED ANY STOCK OF NATIONAL PRIOR TO APRIL 19, 1944; AND,
AS APRIL 19 WAS THE DATE AS OF WHICH THE MISSOURI COURT'S DETERMINATION
WAS EFFECTIVE, "WE MUST PRESUME THAT THERE WAS NO EVIDENCE BEFORE IT
THAT THE RELATIONSHIP EXISTED EARLIER."  149 F.2D AT 550. 

IN THE SECOND PLACE, THE COURT OF APPEALS HELD THAT UNDER CHAPTER X,
WHEN A SUBSIDIARY CORPORATION HAS BEEN ADJUDICATED A BANKRUPT IN ONE
DISTRICT COURT AND ITS PROPERTY IS TRANSFERRED TO A TRUSTEE, IT MAY NOT
FILE A PETITION FOR REORGANIZATION IN ANOTHER DISTRICT COURT WHERE THE
REORGANIZATION PROCEEDING OF ITS PARENT IS PENDING.  FN5  AND FINALLY
THE COURT HELD THAT THE PETITION FOR REORGANIZATION WAS IMPROPERLY
FILED IN ANY CASE, SINCE IT WAS NOT SHOWN THAT BROWN WAS AUTHORIZED TO
FILE IT. 

WE COME TO DIFFERENT CONCLUSIONS.  REGARDLESS OF WHETHER NATIONAL'S
PETITION FOR REORGANIZATION IN THE MISSOURI PROCEEDINGS WAS PROPERLY
FILED ON APRIL 19, THE INDIANA COURT, ON BEING NOTIFIED THAT THE
PETITION HAD BEEN FILED AND APPROVED  FN6  AND THAT AN INJUNCTION HAD
ISSUED, SHOULD HAVE STAYED IMMEDIATELY THE SALE OF NATIONAL'S ASSETS. 
REORGANIZATION PROCEEDINGS:  "PRIOR TO THE APPROVAL OF A PETITION, THE
JUDGE MAY UPON CAUSE SHOWN GRANT A TEMPORARY STAY, UNTIL THE PETITION
IS APPROVED OR DISMISSED, OF A PRIOR PENDING BANKRUPTCY, MORTGAGE
FORECLOSURE OR EQUITY RECEIVERSHIP PROCEEDING AND OF ANY ACT OR OTHER
PROCEEDING TO ENFORCE A LIEN AGAINST A DEBTOR'S PROPERTY, AND MAY UPON
CAUSE SHOWN ENJOIN OR STAY UNTIL THE PETITION IS APPROVED OR DISMISSED
THE COMMENCEMENT OR CONTINUATION OF A SUIT AGAINST A DEBTOR."  IT WAS
ON THE AUTHORITY OF THIS SECTION, WE MAY ASSUME,  FN7  THAT THE
INJUNCTION STAYING THE SALE OF NATIONAL'S PROPERTY WAS ISSUED.  AS
INTERPRETED  FN8  THE SECTION DECLARES THAT WHEN A PETITION FOR
REORGANIZATION HAS BEEN FILED BY A CORPORATION, THE JUDGE MAY STAY
PENDING PROCEEDINGS.  IT DOES NOT DIFFERENTIATE BETWEEN PETITIONS FILED
BY PARENT CORPORATIONS AND PETITIONS FILED BY SUBSIDIARIES, NOR DOES IT
DISTINGUISH PETITIONS WHICH HAVE BEEN FILED CORRECTLY FROM THOSE WHICH
HAVE BEEN FILED ERRONEOUSLY WITH THE REORGANIZATION COURT.  IT THUS
APPLIES TO NATIONAL, WHOSE PETITION FOR REORGANIZATION HAD BEEN FILED
AND AGAINST WHICH A BANKRUPTCY PROCEEDING WAS PENDING. 

OPPORTUNITY WAS AFFORDED TO INTERESTED PARTIES TO COME INTO THE
REORGANIZATION PROCEEDING IN ORDER TO SHOW THAT NATIONAL'S PETITION
SHOULD NOT HAVE BEEN APPROVED.  SEE SEC. 137, 11 U.S.C. SEC. 537, WHICH
PROVIDES:  "PRIOR TO THE FIRST DATE SET FOR THE HEARING PROVIDED IN
ALLEGATIONS OF A PETITION BY OR AGAINST A DEBTOR MAY BE FILED BY ANY
CREDITOR OR INDENTURE TRUSTEE OR, IF THE DEBTOR IS NOT INSOLVENT,  FN10
BY ANY STOCKHOLDER OF THE DEBTOR."  AND SEC. 144, 11 U.S.C. SEC. 544,
PROVIDES, "IF AN ANSWER FILED BY ANY CREDITOR, INDENTURE TRUSTEE, OR
STOCKHOLDER SHALL CONTROVERT ANY OF THE MATERIAL ALLEGATIONS OF THE
PETITION, THE JUDGE SHALL, AS SOON AS MAY BE, DETERMINE, WITHOUT THE
INTERVENTION OF A JURY, THE ISSUES PRESENTED BY THE PLEADINGS AND ENTER
AN ORDER APPROVING THE PETITION, IF SATISFIED THAT IT COMPLIES WITH THE
REQUIREMENTS OF THIS CHAPTER AND HAS BEEN FILED IN GOOD FAITH AND THAT
THE MATERIAL ALLEGATIONS ARE SUSTAINED BY THE PROOFS, OR DISMISSING IT
IF NOT SO SATISFIED."  FN11  THUS, UNDER SECS. 137 AND 144, AN ANSWER
COULD BE FILED TO NATIONAL'S PETITION, DENYING THAT NATIONAL WAS A
SUBSIDIARY OF CHRISTOPHER, AND ASKING THAT THE PETITION BE DISMISSED. 
THE JUDGE WOULD THEN BE OBLIGED TO HOLD AT LEAST A SUMMARY HEARING, SEE
IN RE CHENEY BROS., 12 F.SUPP.  609, 611,  FN12  A MATERIAL ALLEGATION
BEING CONTROVERTED, AND TO DECIDE THE DISPUTED ISSUE ON ITS MERITS. 

IN AS MUCH AS THE INTERESTED PARTIES THUS HAD AN OPPORTUNITY IN THE
REORGANIZATION PROCEEDING TO DISPUTE THE ALLEGATION OF NATIONAL'S
PETITION THAT A PARENT-SUBSIDIARY RELATIONSHIP EXISTED BETWEEN IT AND
CHRISTOPHER AND BY DOING SO TO HAVE THAT ISSUE DETERMINED ON THE FACTS,
WE THINK IT PLAIN THAT CONGRESS INTENDED THAT THE SAME ISSUE SHOULD NOT
BE TRIED COLLATERALLY IN THE BANKRUPTCY PROCEEDING.  FN13 

BUT RESPONDENT RELIES ESPECIALLY UPON SEC. 149, 11 U.S.C. SEC. 549,
AS ALLOWING A COLLATERAL ATTACK IN THE BANKRUPTCY COURT UPON THE
REORGANIZATION PROCEEDINGS INITIATED BY NATIONAL.  THIS SECTION READS:
"AN ORDER, WHICH HAS BECOME FINAL, APPROVING A PETITION FILED UNDER
THIS CHAPTER SHALL BE A CONCLUSIVE DETERMINATION OF THE JURISDICTION OF
THE COURT."  RESPONDENT'S POSITION IS THAT THE MISSOURI DISTRICT
COURT'S APPROVAL OF THE PETITION UPON ITS FILING WAS NOT AN ORDER WHICH
HAD BECOME FINAL AND THAT AS A RESULT THE REORGANIZATION PROCEEDINGS
THEREBY INITIATED BY NATIONAL WERE SUBJECT TO QUESTION IN THE
BANKRUPTCY FORUM. 

ASSUMING ARGUENDO THAT THE EX PARTE ORDER OF APPROVAL, MADE UPON THE
DAY THE PETITION FOR REORGANIZATION WAS FILED, WAS NOT A FINAL ORDER
FN14  AND ASSUMING ALSO THAT, AS RESPONDENT ARGUES, "JURISDICTION"
WITHIN THE MEANING OF THIS SECTION DOES NOT HAVE THE LIMITED MEANING OF
"VENUE," THE SECTION NEVERTHELESS DOES NOT SUPPORT THE POSITION TAKEN. 
CONGRESS IN SEC. 113, 11 U.S.C. SEC. 513, EXPLICITLY PROVIDED THAT A
REORGANIZATION COURT, UPON THE FILING OF A PETITION, COULD STAY PENDING
BANKRUPTCY PROCEEDINGS.  FN15  IN THE LIGHT OF THIS PROVISION IT IS
SCARCELY POSSIBLE THAT CONGRESS ALSO INTENDED THAT A COLLATERAL ATTACK
COULD BE MADE IN THE BANKRUPTCY FORUM, THE PROCEEDINGS IN WHICH HAD
BEEN STAYED,  FN16  UPON THE PROCEEDINGS IN THE REORGANIZATION FORUM. 

BUT IT IS SAID THAT IF THIS BE THE CASE, THEN SEC. 149 HAS NO MEANING
AT ALL.  WE DO NOT THINK THIS CONCLUSION FOLLOWS.  ALTHOUGH, AS WE
CONSTRUE THE ACT, NO COLLATERAL ATTACK MAY BE BROUGHT AGAINST THE
REORGANIZATION PROCEEDINGS, AT LEAST IN A BANKRUPTCY FORUM THE
PROCEEDINGS IN WHICH THE REORGANIZATION COURT HAS STAYED, THIS DOES NOT
MEAN THAT UNDER OTHER CIRCUMSTANCES, WHERE AN ORDER OF APPROVAL IS NOT
FINAL, SEC. 149 WOULD NOT ALLOW THE REORGANIZATION PROCEEDING TO BE
ATTACKED COLLATERALLY IN SOME OTHER FORUM, IN PARTICULAR WHERE "A PRIOR
...  BANKRUPTCY, MORTGAGE FORECLOSURE OR EQUITY RECEIVERSHIP
PROCEEDING (OR)  ...  ANY ACT OR OTHER PROCEEDING TO ENFORCE A LIEN
AGAINST A DEBTOR'S PROPERTY," SEC. 113, 11 U.S.C. SEC. 513, IS NOT
PENDING.  MOREOVER, HAD THE MISSOURI DISTRICT COURT NOT ENJOINED THE
BANKRUPTCY PROCEEDING, WE MAY ASSUME  FN17  THAT THE BANKRUPTCY COURT
WOULD HAVE BEEN CORRECT IN NOT ORDERING THE SALE OF THE ASSETS OF
NATIONAL HALTED. 

THE PROBLEM INVOLVES, OF COURSE, NOT THE ORDINARY POWER OF ONE COURT
OF GENERAL JURISDICTION TO QUESTION THE JURISDICTION OF ANOTHER COURT
OF GENERAL JURISDICTION.  THE JURISDICTION OF BOTH THE BANKRUPTCY FORUM
AND THE REORGANIZATION FORUM IS DERIVED FROM AND IS LIMITED BY THE
BANKRUPTCY ACT, ENACTED IN ACCORDANCE WITH THE CONGRESSIONAL POWER "TO
ESTABLISH  ...  UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES THROUGHOUT
THE UNITED STATES  ..."  CONSTITUTION, ARTICLE I, SEC. 8.  IT WAS
WITHIN THE POWER OF CONGRESS TO PROVIDE THAT A BANKRUPTCY COURT COULD
NOT PERMIT AN ATTACK, EVEN ON THE USUAL GROUNDS, TO BE MADE UPON
PROCEEDINGS INITIATED IN A REORGANIZATION COURT.  FN18 THIS POWER
CONGRESS EXERCISED BY PERMITTING THE REORGANIZATION COURT TO STAY, AS
IT DID,  FN19 THE BANKRUPTCY PROCEEDINGS.    THE EXERCISE OF THIS
POWER, TAKEN IN RELATION TO THE FACTS AT BAR, WAS IN PURSUANCE OF THE
CONGRESSIONAL INTENTION ORDINARILY TO ALLOW PARENT AND SUBSIDIARY TO BE
REORGANIZED IN A SINGLE PROCEEDING,  FN20  THEREBY EFFECTUATING ITS
GENERAL POLICY THAT THE ENTIRE ADMINISTRATION OF AN ESTATE SHOULD BE
CENTRALIZED IN A SINGLE REORGANIZATION COURT.  FN21  IF THE
REORGANIZATION FORUM LACKED THE POWER TO STAY THE BANKRUPTCY PROCEEDING
AND THEREBY TO PREVENT A COLLATERAL INQUIRY INTO ITS OWN JURISDICTION,
THIS POLICY OF CONGRESS WOULD BE FRUSTRATED; FOR INSTEAD OF ONE COURT'S
HAVING "EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY, WHEREVER
LOCATED,"  FN22  THERE WOULD BE TWO COURTS EACH WITH A CLAIM TO
JURISDICTION AND EACH DENYING THE OTHER'S JURISDICTION.  WE MAY NOT
CONSTRUE THE BANKRUPTCY ACT AS PERMITTING SUCH A STATE OF AFFAIRS. 

IN VIEW OF THE DISPOSITION WE MAKE OF THE CAUSE IT IS UNNECESSARY TO
TAKE SPECIFIC ACTION CONCERNING PETITIONERS' MOTION, SUBMITTED IN THEIR
REPLY BRIEF, RELATING TO CERTAIN MATTERS AFFECTING THE STATE OF THE
RECORD. 

THE JUDGMENTS ARE REVERSED AND THE CAUSES ARE REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

FN1  ON JANUARY 19, 1944, AN INDIANA STATE COURT APPOINTED A RECEIVER
FOR NATIONAL.  THE RECEIVER NEVER QUALIFIED, HOWEVER, THE QUALIFICATION
HAVING BEEN DELAYED BECAUSE OF A RESTRAINING ORDER ENTERED BY THE
DISTRICT JUDGE IN THE CHRISTOPHER REORGANIZATION PROCEEDINGS. 

FN2  A.B. CHRISTOPHER WAS PRESIDENT OF THE CHRISTOPHER ENGINEERING
COMPANY AND BROWN WAS VICE PRESIDENT OF THE SAME COMPANY. 

FN3  THE PETITION WAS SIGNED "NATIONAL AIRCRAFT CORPORATION, A
CORPORATION, BY J. M. BROWN, PETITIONER."  IT RECITED THAT "THE
MAJORITY OF THE CAPITAL STOCK OF THIS SUBSIDIARY CORPORATION HAVING
POWER TO VOTE FOR THE ELECTION OF DIRECTORS IS OWNED DIRECTLY BY THE
DEBTOR OR INDIRECTLY THROUGH NOMINEES." 

FN4  IN GRANTING THE PETITIONS FOR REVIEW, THE REFEREE NOTED THAT
"NEITHER PETITION WAS IN DUPLICATE AS REQUIRED BY RULE 19 OF THE RULES
OF THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
INDIANA, AND NEITHER PETITION WAS ACCOMPANIED BY BRIEF AS REQUIRED BY
SAID RULE."  HE ALSO NOTED THAT COPIES OF THE PETITIONS HAD NOT BEEN
SERVED UPON THE TRUSTEE, AS REQUIRED BY THE PROVISIONS OF SEC. 39(C) OF
THE BANKRUPTCY ACT, 11 U.S.C. SEC. 67(C).  HE STATED: "IT SEEMS OBVIOUS
THAT THE FAILURE OF THE PETITIONERS FOR REVIEW TO COMPLY WITH THE RULES
OF COURT AND THE PROVISIONS OF THE BANKRUPTCY ACT IN RESPECT TO THE
FILING OF SUCH PETITIONS WOULD JUSTIFY THE DENIAL THEREOF.  IN ORDER,
HOWEVER, TO RESOLVE ALL DOUBTS IN FAVOR OF THE PETITIONERS AND SO THAT
THE MATTER MAY BE PRESENTED TO THE JUDGE OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF INDIANA, THE REFEREE FINDS THAT SAID
PETITION SHOULD BE GRANTED."  THE REFEREE'S GRANTING OF THE PETITIONS,
DESPITE PETITIONERS' FAILURE TO COMPLY WITH SEC. 39(C), APPEARS TO BE
JUSTIFIED BECAUSE THE RECORD INDICATES THAT THE TRUSTEE WAIVED
SERVICE.  IT HAS BEEN SAID THAT THE REQUIREMENT OF SERVICE IS NOT
JURISDICTIONAL.  2 COLLIER, BANKRUPTCY (14TH ED.)  SEC.  39.24, N. 15. 

THE REFEREE DENIED PETITIONS FOR A STAY OF ENFORCEMENT OF THE ORDER
APPROVING AND CONFIRMING THE SALE.  NO APPEAL WAS TAKEN FROM THE ORDER
OF DENIAL. 

FN5  SEE 149 F.2D AT 551-552 FOR THE COURT'S CONSTRUCTION OF THE
STATUTE WHICH LED IT TO THIS CONCLUSION, AND COMPARE THE DISSENTING
OPINION, 149 F.2D AT 553, FOR A DIFFERENT CONSTRUCTION. 

FN6  THE PETITION WAS APPROVED ON THE SAME DAY THAT IT WAS FILED. 
SEE NOTES 7 AND 11. 

FN7  FOR THE PURPOSES OF THIS CASE IT IS NOT NECESSARY TO DECIDE
WHETHER THE APPLICABLE SECTION IS SEC. 113 OR SEC. 148, AND WE
THEREFORE EXPRESSLY RESERVE THAT QUESTION. 

ORDER APPROVING A PETITION SHALL OPERATE AS A STAY OF A PRIOR PENDING
BANKRUPTCY, MORTGAGE FORECLOSURE, OR EQUITY RECEIVERSHIP PROCEEDING,
AND OF ANY ACT OR OTHER PROCEEDING TO ENFORCE A LIEN AGAINST THE
DEBTOR'S PROPERTY."  IT MIGHT BE URGED THAT THIS SECTION WOULD APPLY
SINCE THE PETITION HAD BEEN "APPROVED" IN THE SENSE OF SEC. 141, 11
U.S.C. SEC. 541, WHICH PROVIDES:  "UPON THE FILING OF A PETITION BY A
DEBTOR, THE JUDGE SHALL ENTER AN ORDER APPROVING THE PETITION, IF
SATISFIED THAT IT COMPLIES WITH THE REQUIREMENTS OF THIS CHAPTER AND
HAS BEEN FILED IN GOOD FAITH, OR DISMISSING IT IF NOT SO SATISFIED";
AND THAT THEREFORE, UNDER SEC. 148, THE BANKRUPTCY PROCEEDING WAS
AUTOMATICALLY STAYED AND IT WAS UNNECESSARY FOR THE INJUNCTION TO
ISSUE. 

THE ALTERNATIVE VIEW WOULD BE THAT THE MEANING OF "APPROVE" AS USED
IN SECS. 113 AND 148 IS NOT THE EX PARTE APPROVAL GIVEN IMMEDIATELY
UPON THE FILING OF A PETITION UNDER SEC. 141 BUT THE APPROVAL GIVEN
AFTER ADVERSARY PROCEEDINGS UNDER SEC. 144, 11 U.S.C. SEC. 544.  SEE
NOTE 11 AND TEXT. 

FN8  SEE NOTE 7. 

FN9  SECTION 161, 11 U.S.C. SEC. 561, READS:  "THE JUDGE SHALL FIX A
TIME OF HEARING, TO BE HELD NOT LESS THAN THIRTY DAYS AND NOT MORE THAN
SIXTY DAYS AFTER THE APPROVAL OF THE PETITION, OF WHICH HEARING AT
LEAST THIRTY DAYS' NOTICE SHALL BE GIVEN BY MAIL TO THE CREDITORS,
STOCKHOLDERS, INDENTURE TRUSTEES, THE SECURITIES AND EXCHANGE
COMMISSION AND SUCH OTHER PERSONS AS THE JUDGE MAY DESIGNATE, AND, IF
DIRECTED BY THE JUDGE, BY PUBLICATION IN SUCH NEWSPAPER OR NEWSPAPERS
OF GENERAL CIRCULATION AS THE JUDGE MAY DESIGNATE." 

IN CONNECTION WITH SEC. 161, SEE SEC. 162, 11 U.S.C. SEC. 562. 

FN10  NATIONAL'S PETITION FOR REORGANIZATION ALLEGED:  "THIS
SUBSIDIARY CORPORATION IS UNABLE TO MEET ITS DEBTS AS THEY MATURE
..." 

FN11  UNDER THIS SECTION THE DISTRICT COURT, IF SATISFIED THAT THE
PETITION COMPLIES WITH THE REQUIREMENTS OF CHAPTER X AND HAS BEEN FILED
IN GOOD FAITH AND THAT THE MATERIAL ALLEGATIONS ARE SUSTAINED BY THE
PROOFS, MAY BE APPROVING THE PETITION FOR THE SECOND TIME; FOR, AS IN
THE PRESENT CASE, HE MAY HAVE APPROVED IT IN ACCORDANCE WITH SEC. 141,
11 U.S.C. SEC. 541, FOR THE FIRST TIME AT THE TIME THE PETITION WAS
FILED.  SEE 10 REMINGTON, BANKRUPTCY (1939) SEC. 4466.  CF. NOTE 7. 

THE ORDER OF APPROVAL UNDER SEC. 141, WHICH CONSISTS OF "FIRST, A
CONCLUSION OF LAW TO THE EFFECT THAT THE PETITION IS SUFFICIENT IN
RESPECT OF ITS ALLEGATIONS, SECOND, A FINDING OF FACT THAT THE PETITION
IS FILED IN GOOD FAITH," 10 REMINGTON SEC. 4453, HAVING BEEN MADE EX
PARTE, IS OF COURSE NOT CONCLUSIVE.  SEE NOTE 7.  SEE ALSO THE
TESTIMONY OF MR. HAROLD REMINGTON IN HEARINGS BEFORE THE COMMITTEE ON
THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES ON H.R. 6439,
SUBSEQUENTLY REPORTED AS H.R. 8046, 75TH CONG., 1ST SESS., 226-227. 
AND SEE GERDES, CORPORATE REORGANIZATIONS: CHANGES EFFECTED BY CHAPTER
X OF THE BANKRUPTCY ACT (1938) 52 HARV. L. REV. 1, 7, N. 38, FOR A
SUGGESTION THAT THE TIME WITHIN WHICH ANSWERS TO THE PETITION MAY BE
FILED CANNOT BE FIXED UNTIL AN ORDER APPROVING THE PETITION, UNDER SEC.
141, HAS BEEN ENTERED.  IF THIS BE THE CASE, IT WOULD SEEM THAT A JUDGE
COULD NOT AVOID THIS PROBLEM OF DOUBLE APPROVAL BY NOT APPROVING THE
PETITION UNTIL AN ANSWER HAD BEEN RECEIVED. 

FN12  CF. GERDES, CORPORATE REORGANIZATIONS:  CHANGES EFFECTED BY
CHAPTER X OF THE BANKRUPTCY ACT (1938) 52 HARV. L. REV. 1, 7:  "THE
STATUTE CONTAINS NO MANDATORY PROVISION REQUIRING NOTICE OF THE HEARING
ON THE ISSUES RAISED BY AN ANSWER TO BE GIVEN TO ALL CREDITORS AND
STOCKHOLDERS ENTITLED TO CONTROVERT THE ALLEGATIONS OF THE PETITION. 
IF SUCH NOTICE IS GIVEN, A DETERMINATION OF ANY ISSUE TRIED AT THE
HEARING BECOMES CONCLUSIVE (CITING SEC. 145, 11 U.S.C. SEC. 545).  IN
THE ABSENCE OF SUCH NOTICE, RECURRENT TRIALS OF THE SAME ISSUES MAY BE
NECESSARY.  ONCE AN ORDER APPROVING THE PETITION HAS BEEN ENTERED,
HOWEVER, IT MAY BE POSSIBLE TO AVOID THE EXPENSE OF GIVING NOTICE TO
ALL CREDITORS AND STOCKHOLDERS AND ALSO AVOID REPEATED TRIALS BY
POSTPONING THE HEARINGS UNTIL AFTER THE TIME TO FILE ANSWERS HAS
EXPIRED, AND THEN TRYING ALL OF SUCH ISSUES AT THE SAME TIME."  CF.
ALSO 10 REMINGTON, BANKRUPTCY (1939) SEC. 4466:  "THE POSSIBILITY OF
SUCCESSIVE ORDERS OF APPROVAL IS PROBABLY MORE FORMAL AND THEORETICAL
THAN SUBSTANTIAL AND REAL, SINCE THE HEARING UPON ALL ANSWERS FILED BY
CREDITORS, INDENTURE TRUSTEES AND STOCKHOLDERS WOULD PROBABLY BE
CONSOLIDATED." 

FN13  IT MIGHT BE ARGUED THAT IF THE CIRCUIT COURT OF APPEALS WAS
CORRECT IN HOLDING THAT FOR THE MISSOURI DISTRICT COURT TO OBTAIN
JURISDICTION OVER NATIONAL IT WAS NECESSARY THAT NATIONAL BE A
SUBSIDIARY OF CHRISTOPHER, NOT ONLY ON THE DATE WHEN NATIONAL FILED ITS
PETITION FOR REORGANIZATION, BUT ALSO WHEN CHRISTOPHER FILED ITS
PETITION AND WHEN THE INVOLUNTARY PETITION IN BANKRUPTCY WAS FILED
AGAINST NATIONAL, THEN INTERESTED PARTIES WOULD NOT HAVE AN OPPORTUNITY
TO CONTROVERT A MATERIAL ALLEGATION OF THE PETITION, NAMELY, THAT SUCH
A PARENT-SUBSIDIARY RELATIONSHIP DID EXIST ON THOSE DATES, SINCE THE
PETITION CONTAINED NO SUCH EXPLICIT STATEMENT.  THE ANSWER WOULD BE,
HOWEVER, THAT THE INTERESTED PARTIES, FIRST, COULD CONTEND THAT SUCH AN
ALLEGATION WAS REQUIRED AS A JURISDICTIONAL FACT, SEE SEC. 130(2), 11
U.S.C. SEC. 530(2), AND, SECOND, IF THE MERE GENERAL STATEMENT OF THE
PARENT-SUBSIDIARY RELATIONSHIP WERE TO BE TAKEN TO SATISFY THE
REQUIREMENT, IF ANY, THAT IT ALSO EXISTED ON THE PRIOR DATES, THEY
COULD RAISE IN ANSWER TO THE PETITION THAT IT DID NOT EXIST ON THOSE
DATES.  IT WOULD THEN BE FOR THE REORGANIZATION COURT TO DETERMINE THE
CORRECTNESS OF EITHER CONTENTION OR BOTH. 

FN14  S. REP. 1916, 75TH CONG., 3D SESS., 27, SAYS THAT SEC. 149 "IS
DESIGNED TO FORECLOSE ALL DIRECT OR COLLATERAL ATTACK UPON JURISDICTION
OR VENUE, ONCE THE PERIOD FOR APPEAL FROM AN ORDER APPROVING A PETITION
HAS EXPIRED."  SEE FOR A DISCUSSION OF THE MEANING OF "FINAL," GERDES,
CORPORATE REORGANIZATIONS:  CHANGES EFFECTED BY CHAPTER X OF THE
BANKRUPTCY ACT (1938) 52 HARV. L. REV. 1, 7-8. 

FN15  SEE NOTE 7 AND TEXT. 

FN16  ALTHOUGH THE MISSOURI DISTRICT COURT ENJOINED ONLY THE SALE,
THIS WAS IN EFFECT AN INJUNCTION AGAINST THE ENTIRE BANKRUPTCY
PROCEEDINGS. 

SEE IN RE LONG ISLAND PROPERTIES, 42 F.SUPP.  323, TO THE EFFECT THAT
A JUDGMENT RENDERED BY A STATE COURT IN VIOLATION OF A STAY ORDER THAT
HAD BEEN ISSUED BY A REORGANIZATION COURT WAS WITHOUT EFFECT IN THE
REORGANIZATION. 

FN17  SEE NOTE 14 AND TEXT; ALSO NOTE 7. 

FN18  IN KALB V. FEUERSTEIN, 308 U.S. 433, 438-439, WHAT IS ALMOST
THE CONVERSE WAS STATED:  "IT IS GENERALLY TRUE THAT A JUDGMENT BY A
COURT OF COMPETENT JURISDICTION BEARS A PRESUMPTION OF REGULARITY AND
IS NOT THEREAFTER SUBJECT TO COLLATERAL ATTACK.  BUT CONGRESS, BECAUSE
ITS POWER OVER THE SUBJECT OF BANKRUPTCY IS PLENARY, MAY BY SPECIFIC
BANKRUPTCY LEGISLATION CREATE AN EXCEPTION TO THAT PRINCIPLE AND RENDER
JUDICIAL ACTS TAKEN WITH RESPECT TO THE PERSON OR PROPERTY OF A DEBTOR
WHOM THE BANKRUPTCY LAW PROTECTS NULLITIES AND VULNERABLE
COLLATERALLY." 

FN19  SEE NOTE 16. 

FN20  AT THE HEARINGS ON THE CHANDLER ACT MR. WEINSTEIN STATED:  "IT
IS ADVISABLE THAT THE COURT WHICH IS CONSIDERING THE PROCEEDING OF A
PARENT CORPORATION SHOULD ALSO HAVE BEFORE IT THE PROCEEDING OF THE
SUBSIDIARY, BECAUSE THERE MAY BE THESE INTERRELATIONS AND THESE
CONNECTED INTERESTS, AND THE PLANS OF REORGANIZATION OFFERED BY THEM,
RESPECTIVELY, MAY BE CARRIED FORWARD CONCURRENTLY."  HEARINGS BEFORE
THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, ON H.R. 6439,
SUBSEQUENTLY REPORTED AS H.R. 8046, 75TH CONG., 1ST SESS., 136.  SEE H.
REP. 1409, 75TH CONG., 1ST SESS., 41; S. REP. 1916, 75TH CONG., 3D
SESS., 25.  CF. IN RE ASSOCIATED GAS & ELECTRIC CO., 11 F.SUPP.  359,
373-374, A SEC. 77B CASE, HOLDING THAT ALTHOUGH SUBSIDIARY CORPORATIONS
HAD NOT FILED PETITIONS IN THE PARENT'S REORGANIZATION, "IT DOES NOT
FOLLOW, HOWEVER, THAT THE COURT HAS NO JURISDICTION TO RESTRAIN
SUBSIDIARIES OVER WHOSE ACTION THE DEBTOR COMPANY HAS CONTROL, FROM SO
DEALING WITH THEIR ASSETS AS TO DILUTE THE EQUITY OF THE DEBTOR COMPANY
AND THUS TO ENDANGER THE INTERESTS OF CREDITORS ON WHOSE BEHALF THE
JURISDICTION OF THE COURT WAS INVOKED." 

FN21  SEE MAR-TEX REALIZATION CORP. V. WOLFSON, 145 F.2D 360, 362
363. 

FN22  SEC. 111, 11 U.S.C. SEC. 511.  THIS SECTION READS IN FULL:
"WHERE NOT INCONSISTENT WITH THE PROVISIONS OF THIS CHAPTER, THE COURT
IN WHICH A PETITION IS FILED SHALL, FOR THE PURPOSES OF THIS CHAPTER,
HAVE EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY, WHEREVER
LOCATED." 

TRANSFER A PROCEEDING UNDER THIS CHAPTER TO A COURT OF BANKRUPTCY IN
ANY OTHER DISTRICT, REGARDLESS OF THE LOCATION OF THE PRINCIPAL ASSETS
OF THE DEBTOR OR ITS PRINCIPAL PLACE OF BUSINESS, IF THE INTERESTS OF
THE PARTIES WILL BE BEST SERVED BY SUCH TRANSFER." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :


















GRIFFIN V. GRIFFIN, 327 U.S. 220 


NO. 86.  ARGUED DECEMBER 10, 1945.  - DECIDED FEBRUARY 25, 1946.  - 148
F.2D 17, REVERSED. 


IN 1924 A NEW YORK COURT ENTERED AN INTERLOCUTORY DECREE DIVORCING
RESPONDENT FROM PETITIONER.  THE DECREE WAS MODIFIED IN 1926 TO PROVIDE
THAT PETITIONER SHOULD PAY TO RESPONDENT ALIMONY IN A SPECIFIED AMOUNT
ANNUALLY.  BOTH PARTIES WERE THEN RESIDENTS OF NEW YORK, AND THE
PROCEEDINGS WERE CONTESTED.  IN 1936 THE COURT, ALSO IN CONTESTED
PROCEEDINGS, ENTERED AN ORDER DECLARING THAT THERE WAS DUE FROM
PETITIONER TO RESPONDENT, FOR THE PERIOD ENDING OCTOBER 25, 1935,
ALIMONY ARREARS AND ACCRUED INTEREST IN A SPECIFIED AMOUNT.  IN 1938,
WITHOUT NOTICE TO THE PETITIONER, A JUDGMENT WAS BY ORDER OF THE COURT
DOCKETED IN FAVOR OF THE RESPONDENT AGAINST PETITIONER, AND EXECUTION
ORDERED TO ISSUE THEREON, IN AN AMOUNT EMBRACING WHAT WAS DUE UPON THE
1936 ORDER PLUS ALIMONY ARREARS AND INTEREST FROM OCTOBER 25, 1935, TO
THE DATE OF THE 1938 ORDER.  RESPONDENT SUED PETITIONER IN THE DISTRICT
COURT OF THE DISTRICT OF COLUMBIA UPON THE 1938 JUDGMENT, AND WAS
AWARDED SUMMARY JUDGMENT IN THE AMOUNT OF THE 1938 JUDGMENT PLUS
INTEREST.  HELD: 

1.  TO THE EXTENT THAT IT ADJUDGED AS DUE AND OWING ARREARS OF
ALIMONY ACCRUED SINCE OCTOBER 25, 1935, THE 1938 JUDGMENT WAS WANTING
IN PROCEDURAL DUE PROCESS AND UNENFORCEABLE.  PP. 223, 233. 

(A)  BECAUSE OF THE WANT OF NOTICE TO PETITIONER OF THE PROCEEDING TO
DOCKET JUDGMENT AGAINST HIM FOR ACCRUED ALIMONY, AND TO THE EXTENT THAT
PETITIONER WAS THUS DEPRIVED OF AN OPPORTUNITY WHICH UNDER THE LAW OF
NEW YORK WAS OPEN TO HIM TO RAISE DEFENSES IN SUCH A PROCEEDING, THERE
WAS WANT OF PROCEDURAL DUE PROCESS AND HENCE WANT OF THAT JURISDICTION
OVER THE PERSON OF PETITIONER PREREQUISITE TO THE RENDITION OF A
JUDGMENT IN PERSONAM AGAINST HIM.  P. 228. 

THE LAW OF NEW YORK IS EXAMINED AND FOUND TO DIFFER SIGNIFICANTLY
FROM THAT INVOLVED IN SISTARE V. SISTARE, 218 U.S. 1.  P. 233. 

(B)  IT IS IMMATERIAL WHETHER PETITIONER AT THE TIME OF THE 1938
PROCEEDING WAS A DOMICILED RESIDENT OF NEW YORK, EITHER WITHIN OR
TEMPORARILY WITHOUT THE STATE, OR A RESIDENT OF SOME OTHER
JURISDICTION.  IN ANY EVENT, A JUDGMENT IN PERSONAM DIRECTING EXECUTION
TO ISSUE AGAINST PETITIONER, AND THUS PURPORTING TO CUT OFF ALL
AVAILABLE DEFENSES, COULD NOT BE RENDERED ON ANY THEORY OF THE STATE'S
POWER OVER HIM, WITHOUT SOME FORM OF NOTICE BY PERSONAL OR SUBSTITUTED
SERVICE.  P. 228. 

(C)  ALTHOUGH THE 1926 DECREE, IN LIGHT OF THE NEW YORK PRACTICE,
GAVE PETITIONER NOTICE AT THE TIME OF ITS ENTRY THAT FURTHER
PROCEEDINGS MIGHT BE TAKEN TO DOCKET IN JUDGMENT FORM THE OBLIGATION TO
PAY INSTALLMENTS ACCRUING UNDER THE DECREE, DUE PROCESS NEVERTHELESS
REQUIRED FURTHER NOTICE OF THE TIME AND PLACE OF SUCH FURTHER
PROCEEDINGS, INASMUCH AS THEY UNDERTOOK SUBSTANTIALLY TO AFFECT HIS
RIGHTS IN WAYS IN WHICH THE 1926 DECREE DID NOT.  P. 229. 

(D)  THE ASSERTION FOR THE FIRST TIME BY THE 1938 JUDGMENT OF POWER
TO ADJUDICATE PETITIONER'S LIABILITY FOR ACCRUED ALIMONY AND TO DIRECT
ITS ENFORCEMENT BY EXECUTION, DOES NOT DIFFER IN ITS NATURE AND
CONSTITUTIONAL EFFECT FROM THE LIKE ASSERTION OF POWER TO ISSUE
EXECUTION BY ANY OTHER JUDGMENT RENDERED WITHOUT NOTICE.  P. 231. 

(E)  THE CONTENTION THAT THE 1938 JUDGMENT IS NOT A FINAL
ADJUDICATION OF THE DEFENSES WHICH THE PETITIONER MIGHT HAVE HAD, AND
THAT NOTICE WAS THEREFORE NOT REQUIRED, IS IRRECONCILABLE WITH THE FACT
THAT THE JUDGMENT AUTHORIZES IMMEDIATE EXECUTION THEREON.  P. 232. 

(F)  EVEN THOUGH PETITIONER COULD, IF HE KNEW OF THE JUDGMENT BEFORE
EXECUTION IS ACTUALLY LEVIED, MOVE TO SET THE JUDGMENT ASIDE, THAT
COULD NOT SAVE THE JUDGMENT FROM ITS DUE PROCESS INFIRMITY, SINCE IT
AND THE NEW YORK PRACTICE PURPORT TO AUTHORIZE THE LEVY OF EXECUTION
BEFORE PETITIONER IS NOTIFIED OF THE PROCEEDING OR THE JUDGMENT.  P.
232. 

2.  TO THE EXTENT THAT THE 1938 JUDGMENT INFRINGES DUE PROCESS, IT
CANNOT BE MADE THE INSTRUMENT FOR ENFORCING IN ANOTHER JURISDICTION THE
RIGHTS PURPORTEDLY ADJUDICATED BY IT.  P. 232. 

(A)  A JUDGMENT OBTAINED IN VIOLATION OF PROCEDURAL DUE PROCESS IS
NOT ENTITLED TO FULL FAITH AND CREDIT WHEN SUED UPON IN ANOTHER
JURISDICTION.  P. 228. 

(B)  DUE PROCESS REQUIRES THAT NO OTHER JURISDICTION SHALL GIVE
EFFECT, EVEN AS A MATTER OF COMITY, TO A JUDGMENT ELSEWHERE ACQUIRED
WITHOUT DUE PROCESS.  P. 232. 

3.  TO THE EXTENT THAT THE 1938 JUDGMENT CONFIRMED THE 1936
ADJUDICATION OF THE AMOUNT OF ALIMONY AND INTEREST DUE AS OF OCTOBER
25, 1935, RESPONDENT WAS ENTITLED TO MAINTAIN SUIT UPON IT.  P. 233. 

(A)  THE 1936 ORDER WAS A FINAL ADJUDICATION BETWEEN THE PARTIES THAT
ARREARS OF ALIMONY WERE THEN DUE AND OWING BY PETITIONER TO RESPONDENT
IN THE SPECIFIED AMOUNT.  P. 233. 

(B)  EXISTENCE OF A POWER TO MODIFY OR REVOKE INSTALLMENTS OF ALIMONY
ALREADY ACCRUED IS NOT LIGHTLY TO BE IMPLIED.  P. 233. 

(C)  THE 1938 JUDGMENT, SO FAR AS IT CONFIRMED THE 1936 ORDER BY
WHICH PETITIONER WAS ALREADY BOUND, IMPAIRED NO RIGHTS OF PETITIONER
AND FORECLOSED NO DEFENSE WHICH HE HAD NOT HAD OPPORTUNITY TO OFFER. 
P. 233. 

(D)  DUE PROCESS DOES NOT REQUIRE THAT NOTICE BE GIVEN BEFORE
CONFIRMATION OF RIGHTS THERETOFORE ESTABLISHED IN A PROCEEDING OF WHICH
ADEQUATE NOTICE WAS GIVEN.  PP. 233-234. 

(E)  UPON REMAND OF THE CAUSE, RESPONDENT WILL BE TAKEN AS HAVING
ESTABLISHED THE AMOUNT OF ALIMONY ACCRUED TO OCTOBER 25, 1935,
REMAINING DUE AND UNPAID AS OF FEBRUARY 25, 1936, SUBJECT TO ANY
SUBSEQUENT DEFENSE GOING TO THE DISCHARGE OF THE OBLIGATION SO
ESTABLISHED, WHICH PETITIONER SHOULD BE PERMITTED TO RAISE, IF ANY HE
HAS.  P. 234. 

4.  UPON REMAND THE DISTRICT COURT WILL BE FREE TO CONSIDER WHETHER
RESPONDENT, UPON ISSUES APPROPRIATELY FRAMED IN CONFORMITY TO THE
SUMMARY JUDGMENT PROCEDURE, OR BY AMENDED PLEADINGS, MAY RECOVER ON THE
BASIS OF THE 1926 DECREE ARREARS OF ALIMONY ACCRUING SINCE OCTOBER 25,
1935.  P. 235. 

5.  PETITIONER'S CLAIM THAT THE JUDGMENT OF THE NEW YORK COURT WAS
PROCURED OR AFFECTED BY FRAUD, AND THAT PARTS OF HIS ANSWER AND
RESPONSE TO THE MOTION FOR SUMMARY JUDGMENT WERE IMPROPERLY STRICKEN BY
THE DISTRICT COURT, IS UNSUPPORTED.  P. 236. 

GRIFFIN V. GRIFFIN. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

IN A SUIT IN THE DISTRICT OF COLUMBIA TO ENFORCE A NEW YORK DECREE
FOR ALIMONY, THE PLAINTIFF WAS AWARDED SUMMARY JUDGMENT.  THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA AFFIRMED.  148
F.2D 17.  THIS COURT GRANTED CERTIORARI.  326 U.S. 705.  REVERSED AND
REMANDED, P. 236. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT IN THE DISTRICT COURT OF THE DISTRICT OF
COLUMBIA, IN WHICH RESPONDENT SOUGHT TO RECOVER THE AMOUNT OF A
JUDGMENT WHICH SHE HAD SECURED AGAINST PETITIONER IN 1938 IN THE
SUPREME COURT OF NEW YORK FOR ARREARS OF ALIMONY.  THE QUESTION FOR
DECISION IS THE EXTENT TO WHICH DUE PROCESS PERMITS THE NEW YORK
ADJUDICATION TO BE MADE THE BASIS FOR RECOVERY IN ANOTHER
JURISDICTION. 

THE RECORD ABOUNDS IN CONFUSING AND IRRELEVANT MATTER, BUT THE
FOLLOWING FACTS MAY BE GLEANED FROM THE PAPERS IN THE NEW YORK COURT
PROCEEDINGS WHICH IT CONTAINS.  ON JUNE 24, 1924, THE SUPREME COURT OF
THE STATE OF NEW YORK ENTERED ITS INTERLOCUTORY JUDGMENT DIVORCING
RESPONDENT FROM PETITIONER, WHICH JUDGMENT WAS, IN 1926, MODIFIED TO
PROVIDE THAT PETITIONER SHOULD PAY TO RESPONDENT ALIMONY IN THE SUM OF
$3,000 ANNUALLY IN EQUAL MONTHLY INSTALLMENTS.  BOTH PARTIES WERE THEN
RESIDENTS OF NEW YORK, AND THE DIVORCE ACTION WAS CONTESTED. 
PETITIONER LEFT NEW YORK IN 1929, AND THOUGH HE HAS RETURNED TO THE
JURISDICTION INTERMITTENTLY SINCE THAT TIME, THE RECORD DOES NOT SHOW
WHETHER HE EVER AGAIN TOOK UP RESIDENCE THERE.  PETITIONER WAS A
RESIDENT OF THE DISTRICT OF COLUMBIA AT THE TIME THIS SUIT WAS BEGUN. 

IN 1935 RESPONDENT MOVED IN THE ORIGINAL DIVORCE PROCEEDING TO PUNISH
PETITIONER FOR CONTEMPT FOR HIS FAILURE TO PAY INSTALLMENTS OF ALIMONY
AS DIRECTED BY THE DECREE OF DIVORCE, AND PETITIONER, IN CONFORMITY TO
NEW YORK PROCEDURE, MADE A CROSS-MOTION TO MODIFY THE ORIGINAL JUDGMENT
BY REDUCING PAST DUE AND FUTURE INSTALLMENTS OF ALIMONY.  THEREUPON THE
NEW YORK COURT ENTERED AN ORDER REFERRING TO A REFEREE FOR
DETERMINATION TWO OF THE ISSUES OF FACT RAISED BY THE MOTIONS, (A) THE
AMOUNT OF UNPAID INSTALLMENTS OF ALIMONY DUE FROM PETITIONER TO
RESPONDENT, AND (B) PETITIONER'S THEN ABILITY TO PAY THEM.  THESE
QUESTIONS WERE LITIGATED BY THE PARTIES IN CONTESTED HEARINGS BEFORE
THE REFEREE, WHOSE REPORT OF JANUARY 7, 1936, FOUND THE AMOUNT THEN DUE
FROM PETITIONER TO RESPONDENT AS ARREARS OF ALIMONY, AND THAT
PETITIONER HAD FAILED TO PRESENT ANY CREDIBLE TESTIMONY SHOWING HIS
INABILITY TO PAY.  THE NEW YORK SUPREME COURT THEN ENTERED ITS ORDER OF
FEBRUARY 25, 1936, DECLARING THAT THERE WAS DUE FROM PETITIONER TO
RESPONDENT FOR THE PERIOD ENDING OCTOBER 25, 1935 ALIMONY ARREARS AND
ACCRUED INTEREST IN THE SUM OF $18,493.64.  PETITIONER'S APPEAL FROM
THIS ORDER TO THE APPELLATE DIVISION OF THE NEW YORK SUPREME COURT WAS
DISMISSED FOR WANT OF PROSECUTION. 

SOME TIME LATER, RESPONDENT MADE A FURTHER MOTION IN THE SUPREME
COURT FOR AN ORDER DIRECTING THE COUNTY CLERK TO ENTER AS A MONEY
JUDGMENT THE ARREARS OF ALIMONY DUE AND UNPAID UNDER THE JUDGMENT OF
DIVORCE.  THIS MOTION WAS GRANTED, AND AN ORDER WAS ENTERED FEBRUARY
19, 1938 DIRECTING THE CLERK TO DOCKET A JUDGMENT IN FAVOR OF
RESPONDENT AGAINST PETITIONER IN THE SUM OF $25,382.75.  AS INDICATED
IN THE ORDER THIS AMOUNT WAS MADE UP OF THE FOLLOWING ITEMS: 

INSTALLMENTS OF ALIMONY ACCRUED TO OC-

TOBER 25, 1935, FOUND DUE BY THE ORDER

OF THE SUPREME COURT OF FEBRUARY 25,

1936........................................... $18,493.64 

INTEREST ON THIS AMOUNT TO DATE OF ENTRY

OF THE 1938 ORDER..............................   2,589.11 

INSTALLMENTS OF ALIMONY DUE FROM OC-

TOBER 25, 1935, TO THE DATE OF THE 1938

ORDER..........................................   3,750.00 

INTEREST ON THESE INSTALLMENTS...................     550.00

                        -------------

                            $25,382.75 

A JUDGMENT THAT RESPONDENT RECOVER THIS AMOUNT FROM PETITIONER AND
HAVE EXECUTION UPON IT WAS ENTERED BY THE CLERK ON FEBRUARY 23, 1938. 
BOTH THE ORDER OF FEBRUARY 19, 1938 AND THE JUDGMENT UPON IT WERE
ENTERED EX PARTE, WITHOUT NOTICE TO PETITIONER, AS THEN SEEMS TO HAVE
BEEN PERMITTED UNDER SEC. 538 OF THE NEW YORK CIVIL PRACTICE ACT. 
THAYER V. THAYER, 145 APP. DIV. 268, 129 N.Y.S. 1035(1ST DEPT.).  FN1
PETITIONER, BY HIS ANSWER IN THE PRESENT SUIT ON THIS JUDGMENT, SET UP
AS DEFENSES THAT THE JUDGMENT OF FEBRUARY 1938 WAS ENTERED WITHOUT
NOTICE TO HIM, AND WAS FOR THAT REASON NULL AND VOID FOR WANT OF DUE
PROCESS, AND ALSO "BECAUSE OF GROSS FRAUD IN ITS INCIDENTS, AND IN ITS
PROCUREMENT, AND IN ITS MAKING AND ENTRY, AND IN ITS MONETARY CONTENTS,
AND IN THE AMOUNT CLAIMED TO BE DUE AND OWING UNDER IT," AND SO WAS NOT
ENTITLED TO ANY RECOGNITION IN THE DISTRICT OF COLUMBIA. 

ON MOTION FOR SUMMARY JUDGMENT, SUPPORTED BY PLEADINGS, AFFIDAVIT AND
ADMISSIONS ESTABLISHING THE SEVERAL JUDGMENTS, ORDERS AND RECORDS OF
THE NEW YORK SUPREME COURT TO WHICH WE HAVE REFERRED, THE DISTRICT
COURT ORDERED SUMMARY JUDGMENT IN THE SUM OF $25,382.75, WITH INTEREST
FROM FEBRUARY 23, 1938.  THE COURT OF APPEALS FOR THE DISTRICT AFFIRMED
WITHOUT OPINION.  WE GRANTED CERTIORARI, 326 U.S. 705, ON A PETITION
WHICH URGES THE SUFFICIENCY OF THE DEFENSES RAISED BELOW. 

BY RULE 56(D) OF THE RULES OF CIVIL PROCEDURE, THE COURT, ON A MOTION
FOR SUMMARY JUDGMENT, IS REQUIRED TO ASCERTAIN BY EXAMINATION OF THE
PLEADINGS AND THE EVIDENCE BEFORE IT WHAT MATERIAL FACTS EXIST WITHOUT
SUBSTANTIAL CONTROVERSY AND WHAT MATERIAL FACTS ARE ACTUALLY AND IN
GOOD FAITH CONTROVERTED, AND THEREUPON TO MAKE AN ORDER SPECIFYING THE
FACTS THAT APPEAR WITHOUT SUBSTANTIAL CONTROVERSY, AND DIRECTING SUCH
FURTHER PROCEEDINGS IN THE ACTION AS ARE JUST.  FOR THE PURPOSES OF THE
TRIAL IT IS PROVIDED THAT THE FACTS SO SPECIFIED SHALL BE DEEMED
ESTABLISHED AND THE TRIAL CONDUCTED ACCORDINGLY.  IN THE PRESENT STATE
OF THE RECORD, AND IN ORDER THAT THE SUMMARY JUDGMENT PROCEDURE MAY BE
PROPERLY FOLLOWED, IT BECOMES NECESSARY TO DETERMINE WHAT FACTS APPEAR
WITHOUT SUBSTANTIAL CONTROVERSY, AND IN THE LIGHT OF THOSE FACTS TO
DIRECT SUCH FURTHER PROCEEDINGS IN THE ACTION AS ARE JUST. 

OF CONTROLLING SIGNIFICANCE IN THIS CASE ARE THE FOLLOWING
UNCONTROVERTED FACTS OF RECORD:  THE JUDGMENT OR DECREE RENDERED BY THE
NEW YORK SUPREME COURT IN 1926 DIRECTING ANNUAL PAYMENTS OF ALIMONY IN
THE SUM OF $3,000; THE ORDER OF THE NEW YORK SUPREME COURT IN THE SAME
PROCEEDING DETERMINING AS A RESULT OF AN ACTIVE LITIGATION BETWEEN THE
PARTIES THAT AS OF FEBRUARY 25, 1936, THERE WAS DUE AND PAYABLE FROM
PETITIONER TO RESPONDENT ARREARS OF ALIMONY IN THE SUM OF $18,493.64,
REPRESENTING INSTALLMENTS ACCRUED TO OCTOBER 25, 1935, WITH INTEREST TO
THAT DATE, AND THAT PETITIONER WAS NOT ENTITLED TO ANY REDUCTION IN THE
AMOUNT DUE; AND FINALLY, THE JUDGMENT OF THE NEW YORK SUPREME COURT OF
1938, WHICH INCORPORATED IN THE AMOUNT ADJUDGED TO BE DUE THE ARREARS
OF ALIMONY WITH INTEREST FOUND BY THE 1936 ORDER TO HAVE ACCRUED TO
OCTOBER 25, 1935. 

WE HAVE EXAMINED THE NEW YORK LAW, AND CONCLUDE THAT THE 1926 NEW
YORK ALIMONY DECREE WAS, UNDER THE NEW YORK PRACTICE, SUBJECT TO SOME
POWER OF MODIFICATION NUNC PRO TUNC AS TO ALIMONY ACCRUED BUT UNPAID UP
TO THE TIME OF MODIFICATION.  SEE NEW YORK CIVIL PRACTICE ACT, SEC.
1170; LAWS 1925, CH. 240.  FN2  UNDER THE LOCAL PRACTICE, ALIMONY WHICH
HAS ACCRUED UNDER A DECREE OF DIVORCE MAY NOT BE COLLECTED BY EXECUTION
UNLESS AND UNTIL A JUDGMENT FOR THE AMOUNT OF ALIMONY ACCRUED BUT
UNPAID IS DOCKETED BY ORDER OF THE COURT WHICH ISSUED THE DECREE. 
THAYER V. THAYER, SUPRA; OSTRIN V. POSNER, 127 MISC. 313, 215 N.Y.S.
259.  AND UPON A MOTION TO DOCKET AS A JUDGMENT, ARREARS OF ALIMONY
AWARDED UNDER A PRIOR DECREE, THE HUSBAND MAY DEFEND ON THE GROUNDS
THAT THE ALIMONY OR SOME PART OF IT IS NOT DUE BECAUSE OF THE DEATH OR
REMARRIAGE OF THE WIFE, KIRKBRIDE V. VAN NOTE, 275 N.Y. 244, 9 N.E.2D
852; OR THAT THE OBLIGATION HAS BEEN DISCHARGED BY PAYMENT OR
OTHERWISE, KARLIN V. KARLIN, 280 N.Y. 32, 19 N.E.2D 669; OR THAT
CIRCUMSTANCES HAVE SO CHANGED AS TO JUSTIFY A REDUCTION OF ALIMONY
ALREADY ACCRUED BY MODIFICATION OF THE ALIMONY DECREE, VAN DUSEN V. VAN
DUSEN, 258 APP. DIV. 1020, 17 N.Y.S.2D 96(3D DEPT.); CUNNINGHAM V.
CUNNINGHAM, 261 APP. DIV. 973, 25 N.Y.S.2D 933, 934(2D DEPT.); EISINGER
V. EISINGER, 261 APP. DIV. 1031, 26 N.Y.S.2D 22(3D DEPT.). 

CONCEDEDLY THE 1938 JUDGMENT WAS ENTERED WITHOUT ACTUAL NOTICE TO OR
APPEARANCE BY PETITIONER, AND WITHOUT ANY FORM OF SERVICE OF PROCESS
CALCULATED TO GIVE HIM NOTICE OF THE PROCEEDINGS.  COMPARE
INTERNATIONAL SHOE CO. V. WASHINGTON, 326 U.S. 310, 320-321.  BECAUSE
OF THE OMISSION, AND TO THE EXTENT THAT PETITIONER WAS THUS DEPRIVED OF
AN OPPORTUNITY TO RAISE DEFENSES OTHERWISE OPEN TO HIM UNDER THE LAW OF
NEW YORK AGAINST THE DOCKETING OF JUDGMENT FOR ACCRUED ALIMONY, THERE
WAS A WANT OF JUDICIAL DUE PROCESS, AND HENCE WANT OF THAT JURISDICTION
OVER THE PERSON OF PETITIONER PREREQUISITE TO THE RENDITION OF A
JUDGMENT IN PERSONAM AGAINST HIM.  MCDONALD V. MABEE, 243 U.S. 90; CF.
WEBSTER V. REID, 11 HOW.  437, 459.  THE ONLY INDICATION IN THE RECORD
AS TO PETITIONER'S RESIDENCE AT THE TIME OF THE ENTRY OF THE 1938
JUDGMENT IS A RECITATION IN THE JUDGMENT ITSELF THAT HE WAS THEN A
RESIDENT OF THE DISTRICT OF COLUMBIA.  BUT IT IS IMMATERIAL FOR PRESENT
PURPOSES WHETHER OR NOT PETITIONER WAS A DOMICILED RESIDENT OF NEW YORK
AT THE TIME, EITHER WITHIN OR TEMPORARILY WITHOUT THE STATE, OR A
RESIDENT OF SOME OTHER JURISDICTION.  IT IS PLAIN IN ANY CASE THAT A
JUDGMENT IN PERSONAM DIRECTING EXECUTION TO ISSUE AGAINST PETITIONER,
AND THUS PURPORTING TO CUT OFF ALL AVAILABLE DEFENSES, COULD NOT BE
RENDERED ON ANY THEORY OF THE STATE'S POWER OVER HIM, WITHOUT SOME FORM
OF NOTICE BY PERSONAL OR SUBSTITUTED SERVICE.  WUCHTER V. PIZZUTTI, 276
U.S. 13, 18-20; RESTATEMENT OF CONFLICT OF LAWS, SEC. 75; AND COMPARE
MILLIKEN V. MEYER, 311 U.S. 457.  SUCH NOTICE CANNOT BE DISPENSED WITH
EVEN IN THE CASE OF JUDGMENTS IN REM WITH RESPECT TO PROPERTY WITHIN
THE JURISDICTION OF THE COURT RENDERING THE JUDGMENT.  ROLLER V. HOLLY,
176 U.S. 398, 409. 

A JUDGMENT OBTAINED IN VIOLATION OF PROCEDURAL DUE PROCESS IS NOT
ENTITLED TO FULL FAITH AND CREDIT WHEN SUED UPON IN ANOTHER
JURISDICTION.  NATIONAL EXCHANGE BANK V. WILEY, 195 U.S. 257; OLD WAYNE
LIFE ASSN. V. MC-DONOUGH, 204 U.S. 8, 23; BAKER V. BAKER, ECCLES & CO.,
242 U.S. 394, 401.  MOREOVER, DUE PROCESS REQUIRES THAT NO OTHER
JURISDICTION SHALL GIVE EFFECT, EVEN AS A MATTER OF COMITY, TO A
JUDGMENT ELSEWHERE ACQUIRED WITHOUT DUE PROCESS.  RESTATEMENT OF
JUDGMENTS, SEC. 11, COMMENT C. 

WHILE IT IS UNDOUBTEDLY TRUE THAT THE 1926 DECREE, TAKEN WITH THE NEW
YORK PRACTICE ON THE SUBJECT, GAVE PETITIONER NOTICE AT THE TIME OF ITS
ENTRY THAT FURTHER PROCEEDINGS MIGHT BE TAKEN TO DOCKET IN JUDGMENT
FORM THE OBLIGATION TO PAY INSTALLMENTS ACCRUING UNDER THE DECREE, WE
FIND IN THIS NO GROUND FOR SAYING THAT DUE PROCESS DOES NOT REQUIRE
FURTHER NOTICE OF THE TIME AND PLACE OF SUCH FURTHER PROCEEDINGS,
INASMUCH AS THEY UNDERTOOK SUBSTANTIALLY TO AFFECT HIS RIGHTS IN WAYS
IN WHICH THE 1926 DECREE DID NOT.  FN3  BY SEC. 1170 OF THE NEW YORK
CIVIL PRACTICE ACT, PETITIONER WAS AFFORDED THE OPPORTUNITY TO MOVE TO
MODIFY THE ALIMONY DECREE NUNC PRO TUNC.  THE RIGHT AFFORDED BY THAT
EXERCISED BY HIM, IN EFFECT BY WAY OF DEFENSE, IN ADDITION TO THE
DEFENSE OF PAYMENT, IN A PROCEEDING BEGUN BY HIS WIFE TO DOCKET A
JUDGMENT FOR ACCRUED ALIMONY.  SEE VAN DUSEN V. VAN DUSEN, SUPRA;
CUNNINGHAM V. CUNNINGHAM, SUPRA; EISINGER V. EISINGER, SUPRA.  AS WE
READ THE 1938 JUDGMENT, WHICH RECITED THAT THE ALIMONY WAS "DUE AND
UNPAID," AND DIRECTED THE ISSUANCE OF EXECUTION FOR ITS COLLECTION, IT
PURPORTED TO CUT OFF ANY DEFENSE OF PAYMENT OR CLAIM UNDER SEC. 1170,
WHICH PETITIONER MIGHT HAVE BEEN PROMPTED TO ASSERT, AND WHICH HE HAD
THE RIGHT TO ASSERT IN THE VERY PROCEEDING WHICH CULMINATED IN THE
JUDGMENT SUED UPON.  FN4  THAT RIGHT COULD NOT BE RENDERED NUGATORY BY
FAILURE TO GIVE HIM NOTICE OF THAT PROCEEDING. 

IT IS SAID THAT WE MUST PRESUME THAT THE NEW YORK PRACTICE REQUIRES
THAT A JUDGMENT FOR ACCRUED ALIMONY WHICH HAS BEEN DOCKETED WITHOUT
NOTICE MUST, QUITE APART FROM DUE PROCESS REQUIREMENTS, BE SET ASIDE ON
THE DEFENDANT'S APPLICATION SHOWING TO THE COURT THAT HE HAD A DEFENSE
TO THE CLAIM FOR ACCRUED ALIMONY.  FN5  FROM THIS IT IS SAID TO FOLLOW
THAT THE 1938 JUDGMENT DID NOT DEPRIVE PETITIONER OF ANY RIGHT WHICH HE
PREVIOUSLY HAD, OR OF ANY DEFENSE WHICH HE MIGHT HAVE BEEN ENTITLED TO
MAKE, AND THAT THEREFORE THE JUDGMENT IS NOT WANTING IN DUE PROCESS. 
THE ARGUMENT THEN RUNS THAT SINCE SUCH A JUDGMENT SATISFIES DUE PROCESS
IT IS ENTITLED TO AS MUCH FAITH AND CREDIT IN OTHER JURISDICTIONS AS IT
HAS IN NEW YORK.  THIS, IT IS SUGGESTED, MEANS THAT THE JUDGMENT MAY BE
MADE THE BASIS OF SUIT IN ANOTHER JURISDICTION, BUT SUBJECT THERE TO
ALL THOSE DEFENSES WHICH WOULD BE GROUNDS FOR SETTING IT ASIDE IN NEW
YORK.    BUT IF WANT OF NOTICE WERE, WITHOUT MORE, A SUFFICIENT GROUND
FOR SETTING ASIDE THE JUDGMENT UNDER THE NEW YORK PRACTICE, THIS COULD
HARDLY BE HELD TO AMOUNT TO ANYTHING MORE THAN RECOGNITION BY NEW YORK
OF THE CONSTITUTIONAL PRECEPT THAT A COURT MAY NOT ACT TO GIVE A
PERSONAL JUDGMENT IN THE ABSENCE OF NOTICE.  IF NEW YORK, BY ITS
PRACTICE, RECOGNIZES THE INEFFECTIVENESS OF SUCH A JUDGMENT, THAT COULD
NOT BE MADE A GROUND FOR GIVING THE JUDGMENT EFFECT ELSEWHERE MORE THAN
ANY OTHER JUDGMENT RENDERED WITHOUT NOTICE.  IT MIGHT AS WELL BE SAID
THAT ANY JUDGMENT WHICH DOES NOT VALIDLY CUT OFF DEFENSES BECAUSE
RENDERED WITHOUT DUE PROCESS MAY BE MADE THE BASIS OF SUIT ELSEWHERE
SUBJECT TO THOSE DEFENSES.  TO THE EXTENT THAT NEW YORK REFUSES, IF IT
DOES REFUSE, TO SET ASIDE THE JUDGMENT OF 1938 UNLESS THERE BE SOME
AFFIRMATIVE SHOWING THAT THERE WAS A MERITORIOUS SUBSTANTIVE DEFENSE TO
ITS ENTRY, THERE IS AN ASSERTION OF POWER IN THE COURT TO ENTER A MONEY
JUDGMENT AND ISSUE EXECUTION UPON IT WITHOUT NOTICE.  THE ASSERTION FOR
THE FIRST TIME BY THE 1938 JUDGMENT OF POWER TO ADJUDICATE PETITIONER'S
LIABILITY FOR ACCRUED ALIMONY AND TO DIRECT ITS ENFORCEMENT BY
EXECUTION, SEE THAYER V. THAYER, SUPRA, DOES NOT DIFFER IN ITS NATURE
AND CONSTITUTIONAL EFFECT FROM THE LIKE ASSERTION OF POWER TO ISSUE
EXECUTION BY ANY OTHER JUDGMENT RENDERED WITHOUT NOTICE. 

DUE PROCESS FORBIDS ANY EXERCISE OF JUDICIAL POWER WHICH, BUT FOR THE
CONSTITUTIONAL INFIRMITY, WOULD SUBSTANTIALLY AFFECT A DEFENDANT'S
RIGHTS.  TO THE SUGGESTION THAT UNDER THE PRESUMED NEW YORK PRACTICE
THE POWER ASSERTED BY THE JUDGMENT DOES NOT INCLUDE THE FINAL
ADJUDICATION OF ANY OF THE DEFENSES WHICH PETITIONER MIGHT HAVE HAD,
AND THAT NOTICE IS THEREFORE NOT REQUIRED, THE ANSWER MUST BE THAT THE
JUDGMENT AUTHORIZES THE IMMEDIATE ISSUANCE OF EXECUTION.  WE ARE UNABLE
TO RECONCILE THE DIRECTION THAT PETITIONER'S PROPERTY BE SEIZED ON
EXECUTION TO SATISFY AN OBLIGATION FOR THE FIRST TIME FOUND BY THE
JUDGMENT TO BE "DUE AND UNPAID" WITH THE THEORY THAT THE OBLIGATION IS,
FOR CONSTITUTIONAL PURPOSES, THUS ONLY TENTATIVELY ADJUDICATED.  THERE
CAN BE NO DOUBT THAT A LEVY UPON ANY PROPERTY PETITIONER MIGHT HAVE IN
NEW YORK WOULD SUBSTANTIALLY, AND IN AT LEAST SOME INSTANCES,
PERMANENTLY AFFECT HIS RIGHTS.  WE CANNOT SAY THAT THIS COULD BE DONE
WITHOUT NOTICE OF THE PROCEEDING SAID TO JUSTIFY THE LEVY.  EVEN THOUGH
PETITIONER COULD, IF HE KNEW OF THE JUDGMENT BEFORE EXECUTION IS
ACTUALLY LEVIED, MOVE TO SET THE JUDGMENT ASIDE, THAT COULD NOT SAVE
THE JUDGMENT FROM ITS DUE PROCESS INFIRMITY, SINCE IT AND THE NEW YORK
PRACTICE PURPORT TO AUTHORIZE THE LEVY OF EXECUTION BEFORE PETITIONER
IS NOTIFIED OF THE PROCEEDING OR THE JUDGMENT. 

SINCE BY VIRTUE OF THE DUE PROCESS CLAUSE THE JUDGMENT IS INEFFECTIVE
IN NEW YORK TO ADJUDICATE PETITIONER'S RIGHTS FOR ENFORCEMENT PURPOSES,
IT CANNOT BE MADE THE INSTRUMENT FOR ENFORCING ELSEWHERE THE OBLIGATION
PURPORTEDLY ADJUDICATED BY IT.  AND EVEN IF WE WERE TO SAY THAT BY
VIRTUE OF THE NEW YORK PRACTICE, AND WITHOUT REFERENCE TO DUE PROCESS,
THE 1938 JUDGMENT IS NOT AN ASSERTION OF JUDICIAL POWER TO BIND
PETITIONER'S PROPERTY FOR THE OBLIGATION WHICH THE JUDGMENT PURPORTS TO
ESTABLISH, SUCH A JUDGMENT WOULD OBVIOUSLY ADD NOTHING TO THE 1926
DECREE AS A BASIS FOR ENFORCING THE OBLIGATION IN ANOTHER
JURISDICTION.  NEITHER THE JUDGMENT NOR THE EARLIER DECREE WOULD DO
MORE THAN ESTABLISH THE ORIGINAL OBLIGATION TO PAY ALIMONY SUBJECT TO
DEFENSES WHICH THE SUPPOSED NEW YORK PRACTICE WOULD PRESERVE IF DUE
PROCESS DID NOT. 

IT FOLLOWS THAT TO THE EXTENT THAT THE 1938 JUDGMENT PURPORTS TO
ADJUDGE AS DUE AND OWING ARREARS OF ALIMONY ACCRUED SINCE OCTOBER 25,
1935, THE END OF THE PERIOD COVERED BY THE 1936 ORDER, IT IS
INEFFECTIVE TO ESTABLISH PETITIONER'S PERSONAL LIABILITY, OR TO DEPRIVE
HIM OF DEFENSES TO HIS ASSERTED LIABILITY FOR THOSE ARREARS. 

BUT THE 1938 JUDGMENT, SO FAR AS IT CONFIRMED THE ADJUDICATION OF THE
AMOUNT OF ALIMONY AND INTEREST DUE AS OF OCTOBER 25, 1935, STANDS ON A
DIFFERENT FOOTING.  IT HAS NOT BEEN SUGGESTED, AND WE HAVE NOT FOUND
ANY NEW YORK AUTHORITY HOLDING, THAT ANY OF THE QUESTIONS WITH RESPECT
TO PAYMENT OR TO THE MODIFICATION OF THE ALIMONY DECREE NUNC PRO TUNC
WHICH PETITIONER RAISED OR MIGHT HAVE RAISED IN THE 1936 PROCEEDINGS
WERE THEREAFTER OPEN TO HIM AS TO THE ACCRUED INSTALLMENTS WHICH WERE
THE SUBJECT OF HIS MOTION TO MODIFY THE DECREE.  THE 1936 ORDER BECAME
FINAL UPON THE DISMISSAL OF PETITIONER'S APPEAL FROM IT, AND WAS AN
ADJUDICATION BETWEEN THE PARTIES THAT ARREARS OF ALIMONY WERE THEN DUE
AND OWING BY PETITIONER TO RESPONDENT IN THE SPECIFIED AMOUNT.  AS WE
SAID IN BARBER V. BARBER, 323 U.S. 77, 82, PARAPHRASING SISTARE V.
SISTARE, 218 U.S. 1, WHERE A DECREE FOR ALIMONY IS MADE THE BASIS OF AN
ACTION IN ANOTHER JURISDICTION, "'EVERY REASONABLE IMPLICATION MUST BE
RESORTED TO AGAINST THE EXISTENCE OF' A POWER TO MODIFY OR REVOKE
INSTALLMENTS OF ALIMONY ALREADY ACCRUED 'IN THE ABSENCE OF CLEAR
LANGUAGE MANIFESTING AN INTENTION TO CONFER IT.'" 

DEFENSES WHICH MIGHT OTHERWISE HAVE BEEN OPEN TO PETITIONER IN THE
1938 PROCEEDING WITH RESPECT TO ALIMONY ACCRUED TO OCTOBER 25, 1935
MUST THUS BE TAKEN AS HAVING BEEN FORECLOSED BY THE 1936 PROCEEDINGS,
OF WHICH PETITIONER HAD ACTUAL NOTICE, AND IN WHICH HE ACTIVELY
PARTICIPATED.  THE 1938 JUDGMENT, SO FAR AS IT CONFIRMED THE 1936 ORDER
BY WHICH PETITIONER WAS ALREADY BOUND, IMPAIRED NO RIGHTS OF
PETITIONER, AND FORECLOSED NO DEFENSE WHICH HE HAD NOT HAD OPPORTUNITY
TO OFFER.  DUE PROCESS DOES NOT REQUIRE THAT NOTICE BE GIVEN BEFORE
CONFIRMATION OF RIGHTS THERETOFORE ESTABLISHED IN A PROCEEDING OF WHICH
ADEQUATE NOTICE WAS GIVEN. 

UPON THE FACTS SHOWN, RESPONDENT WAS THEREFORE ENTITLED TO MAINTAIN
THE PRESENT SUIT ON THE 1938 JUDGMENT FOR THE AMOUNT, WITH INTEREST,
THUS ADJUDICATED TO BE DUE BY THE ORDER OF 1936, AND AS SO ADJUDICATED,
CONFIRMED BY THE JUDGMENT OF 1938.  FOR IN SISTARE V. SISTARE, SUPRA,
WE HELD THAT THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION
REQUIRED A CONNECTICUT COURT TO RENDER JUDGMENT FOR PAST DUE
INSTALLMENTS OF ALIMONY WHICH HAD ACCRUED UNDER A NEW YORK DECREE FOR
FUTURE ALIMONY, THE RIGHT TO WHICH WE HELD HAD BECOME VESTED UNDER THE
THEN EXISTING NEW YORK LAW, EVEN THOUGH THE DECREE MIGHT BE SUBJECT TO
MODIFICATION PROSPECTIVELY AS TO FUTURE INSTALLMENTS BY FURTHER ORDERS
OF THE NEW YORK COURT. 

WE HAVE SAID THAT THE FAILURE TO GIVE PETITIONER NOTICE OF THE 1938
PROCEEDING DID NOT PREJUDICE HIM AS TO ANY OF THE DEFENSES WHICH HE
MIGHT HAVE RAISED IN THE 1936 PROCEEDING.  BUT ALTHOUGH IT PURPORTED TO
DO SO, THE 1938 JUDGMENT, BECAUSE RENDERED WITHOUT NOTICE, COULD NOT
FORECLOSE DEFENSES GOING TO THE DISCHARGE OF THE OBLIGATION ESTABLISHED
BY THE ORDER OF 1936, AND ARISING SINCE ITS DATE.  IT FOLLOWS THAT,
UPON FURTHER PROCEEDINGS UPON THE REMAND OF THIS CAUSE TO THE DISTRICT
COURT, RESPONDENT WILL BE TAKEN AS HAVING ESTABLISHED THE AMOUNT OF
ALIMONY ACCRUED TO OCTOBER 25, 1935 REMAINING DUE AND UNPAID AS OF
FEBRUARY 25, 1936, SUBJECT TO ANY SUBSEQUENT DEFENSE GOING TO THE
DISCHARGE OF THE OBLIGATION SO ESTABLISHED, WHICH PETITIONER SHOULD BE
PERMITTED TO RAISE, IF ANY HE HAS. 

IN THE PRESENT STATE OF THE RECORD, AND BECAUSE OF THE LIMITED NATURE
OF THE QUESTIONS PRESENTED AND ARGUED HERE, WE DO NOT DETERMINE THE
EXTENT TO WHICH RESPONDENT MAY, UPON SUCH FURTHER PROCEEDINGS AS ARE
APPROPRIATE ON THE RETURN OF THIS CASE TO THE DISTRICT COURT, RECOVER,
UPON THE 1926 DECREE, INSTALLMENTS OF ALIMONY WHICH HAVE ACCRUED SINCE
OCTOBER 25, 1935.  WHILE THE 1926 DECREE IS IN THE RECORD AND MUST BE
THE FOUNDATION OF ANY RIGHT RESPONDENT HAS TO RECOVER ARREARS OF
ALIMONY ACCRUING SINCE OCTOBER 25, 1935, HER PLEADINGS MAKE IT
SUFFICIENTLY CLEAR THAT THE PRESENT SUIT WAS BASED UPON THE 1938
JUDGMENT RATHER THAN UPON THE DECREE.  IF RESPONDENT IS ENTITLED TO
BASE A SUIT FOR INSTALLMENTS OF ALIMONY ACCRUING AFTER OCTOBER 25, 1935
ON THE 1926 DECREE, SHE HAS MISCONCEIVED HER CAUSE OF ACTION AS TO
THOSE INSTALLMENTS BY SEEKING TO RECOVER THEM BY VIRTUE OF THE 1938
JUDGMENT, WHICH IS INVALID AS TO THEM BECAUSE OBTAINED WITHOUT NOTICE. 
BUT PETITIONER IS NOT TO BE PREJUDICED BY RESPONDENT'S MISTAKE, FOR
SINCE HE WAS ENTITLED TO REGARD THE SUIT AS ONE UPON THE JUDGMENT, HE
WAS NOT REQUIRED TO INTERPOSE DEFENSES WHICH WOULD BE APT IF THE SUIT
WERE UPON THE 1926 DECREE.  THE SUIT ON THE 1938 JUDGMENT, IN ITS
PRESENT FORM, IS NOT TO BE VIEWED AS IF IT WERE ON THE 1926 DECREE, A
NEW AND DIFFERENT CAUSE OF ACTION, AND PETITIONER IS NOT TO BE
PENALIZED FOR NOT HAVING ALREADY RAISED HIS DEFENSES TO A CLAIM NOT
PRESENTED BY RESPONDENT'S PLEADINGS.  IN REMANDING WE LEAVE THE
DISTRICT COURT FREE TO CONSIDER WHETHER RESPONDENT, UPON ISSUES
APPROPRIATELY FRAMED IN CONFORMITY TO THE SUMMARY JUDGMENT PROCEDURE,
OR BY AMENDED PLEADINGS, MAY RECOVER ON THE BASIS OF THE 1926 DECREE,
ARREARS OF ALIMONY ACCRUING SINCE OCTOBER 25, 1935.  FN6 

ONLY A WORD NEED BE SAID AS TO PETITIONER'S DEFENSE THAT THE JUDGMENT
WAS PROCURED BY FRAUD.  ALTHOUGH HIS ANSWER PLEADS HIS LEGAL CONCLUSION
THAT THE JUDGMENT IS NOT ENTITLED TO RECOGNITION BECAUSE "OF GROSS
FRAUD IN ITS INCIDENTS, AND IN ITS PROCUREMENT," ETC., ETC., HIS ANSWER
SETS UP NO FACTS SHOWING THE ALLEGED FRAUD.  A PART OF HIS ANSWER AND
AN UNVERIFIED STATEMENT FILED BY PETITIONER IN RESPONSE TO THE MOTION
FOR SUMMARY JUDGMENT WERE ORDERED STRICKEN BY THE TRIAL COURT,
EVIDENTLY BECAUSE IRRELEVANT AND SCANDALOUS.  IN THESE THE CHARGE OF
FRAUD IS ELABORATED BY GENERAL STATEMENTS THAT THE MACHINATIONS OF THE
NEW YORK COUNSEL OF THE PARTIES, AND THEIR RACIAL, RELIGIOUS AND
POLITICAL AFFILIATIONS WITH THE JUDGES WHO HAVE PRESIDED OVER THE
VARIOUS PHASES OF THE NEW YORK LITIGATION, HAVE RESULTED IN THE FAILURE
OF JUSTICE EXEMPLIFIED BY THE SEVERAL DECISIONS ADVERSE TO PETITIONER. 
WE HAVE EXAMINED THESE ASSERTIONS AND FIND THAT THE ONLY SUPPORT FOR
THEM, SO FAR AS APPEARS, IS PETITIONER'S UNSUPPORTED SUSPICIONS.  WE
THUS FIND NO BASIS FOR THE ALLEGATION THAT THE JUDGMENT WAS PROCURED OR
IN SOME WAY AFFECTED BY FRAUD, OR FOR THE CONTENTION THAT THE OFFENSIVE
MATTER WAS IMPROPERLY STRICKEN.  WE HAVE EXAMINED, BUT FIND IT
UNNECESSARY TO DISCUSS VARIOUS OTHER OF PETITIONER'S CONTENTIONS, WHICH
ARE LIKEWISE WITHOUT MERIT. 

THE JUDGMENT WILL BE REVERSED AND THE CASE REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY TO THIS OPINION.  SO ORDERED. 

FN1  SINCE THE ENTRY OF THE 1938 JUDGMENT, SEC. 1171-B OF THE NEW
YORK CIVIL PRACTICE ACT HAS BEEN ADDED BY LAWS OF 1939, CH. 431,
AMENDED, LAWS OF 1940, CH. 226, SO AS TO PROVIDE: 

"SEC. 1171-B.  ENFORCEMENT BY EXECUTION OF JUDGMENT OR ORDER IN
ACTION FOR DIVORCE, SEPARATION OR ANNULMENT.  WHERE THE HUSBAND, IN AN
ACTION FOR DIVORCE, SEPARATION, ANNULMENT, OR DECLARATION OF NULLITY OF
A VOID MARRIAGE, MAKES DEFAULT IN PAYING ANY SUM OF MONEY AS REQUIRED
BY THE JUDGMENT OR ORDER DIRECTING THE PAYMENT THEREOF, THE COURT MAY
MAKE AN ORDER DIRECTING THE ENTRY OF JUDGMENT FOR THE AMOUNT OF SUCH
ARREARS, TOGETHER WITH TEN DOLLARS COSTS AND DISBURSEMENTS.  THE
APPLICATION FOR SUCH ORDER SHALL BE UPON SUCH NOTICE TO THE HUSBAND AS
THE COURT MAY DIRECT.  SUCH JUDGMENT MAY BE ENFORCED BY EXECUTION OR IN
ANY OTHER MANNER PROVIDED BY LAW FOR THE COLLECTION OF MONEY
JUDGMENTS.  THE RELIEF HEREIN PROVIDED FOR IS IN ADDITION TO ANY AND
EVERY OTHER REMEDY TO WHICH THE WIFE MAY BE ENTITLED UNDER THE LAW." 

FN2  THE NEW YORK LAW DESCRIBED IN SISTARE V. SISTARE, 218 U.S. 1,
DECIDED IN 1910, DIFFERS SIGNIFICANTLY FROM THE MORE RECENT NEW YORK
LAW WHICH GOVERNS THIS CASE, AS WILL BE SEEN FROM THE AUTHORITIES
CITED.  CH. 240 OF THE LAWS OF 1925 AMENDED SEC. 1170 OF THE CIVIL
PRACTICE ACT SO AS TO PROVIDE IN PART:  "WHERE AN ACTION FOR DIVORCE OR
SEPARATION IS BROUGHT BY EITHER HUSBAND OR WIFE, THE COURT, EXCEPT AS
OTHERWISE EXPRESSLY PRESCRIBED BY STATUTE, MUST GIVE, EITHER IN THE
FINAL JUDGMENT, OR BY ONE OR MORE ORDERS, MADE FROM TIME TO TIME BEFORE
FINAL JUDGMENT, SUCH DIRECTIONS AS JUSTICE REQUIRES, BETWEEN THE
PARTIES,  ...  WHERE THE ACTION IS BROUGHT BY THE WIFE, FOR THE SUPPORT
OF THE PLAINTIFF.  THE COURT, BY ORDER, UPON THE APPLICATION OF EITHER
PARTY TO THE ACTION,  ...  AFTER DUE NOTICE TO THE OTHER, TO BE GIVEN
IN SUCH MANNER AS THE COURT SHALL PRESCRIBE, AT ANY TIME AFTER FINAL
JUDGMENT, MAY ANNUL, VARY OR MODIFY SUCH DIRECTIONS, OR IN CASE NO SUCH
DIRECTION OR DIRECTIONS SHALL HAVE BEEN MADE, AMEND IT BY INSERTING
SUCH DIRECTION OR DIRECTIONS AS JUSTICE REQUIRES  ...  FOR THE SUPPORT
OF THE PLAINTIFF IN SUCH FINAL JUDGMENT OR ORDER OR ORDERS...." 

FN3  WE DO NOT SHARE IN THE APPREHENSION THAT THE COST OF PROVIDING
SUCH NOTICE AS WILL SATISFY DUE PROCESS REQUIREMENTS EACH TIME A
PROCEEDING IS BEGUN TO DOCKET A JUDGMENT FOR AN ACCRUED INSTALLMENT OF
ALIMONY WILL BE INCOMMENSURATELY HIGH.  IN VARIOUS STATUTES NEW YORK
HAS BEEN ABLE TO PROVIDE FOR NOTICE BY MAIL, WHICH IS REASONABLY
ADAPTED TO PROVIDE ACTUAL NOTICE AND INEXPENSIVE IN ITS OPERATION.  NEW
YORK CIVIL PRACTICE ACT, SEC. 229-B; NEW YORK REAL PROPERTY LAW, SEC.
442-G; NEW YORK VEHICLE AND TRAFFIC LAW, SECS. 52, 52-A; SEE ALSO
DURLACHER V. DURLACHER, 173 MISC. 329, 17 N.Y.S.2D 643. 

FN4  A JUDGMENT PROCURED BY FRAUD MAY BE VACATED ON THAT GROUND IN
THE STATE OF ITS RENDITION, AND THE FRAUD MAY PERHAPS BE URGED AS A
DEFENSE AGAINST ITS ENFORCEMENT ELSEWHERE.  BUT A DEMONSTRATION THAT
THE ALIMONY HAS BEEN PAID WOULD NOT NECESSARILY ESTABLISH THAT A
JUDGMENT FOR ARREARS HAD BEEN FRAUDULENTLY PROCURED BY THE WIFE'S FALSE
REPRESENTATIONS TO THE COURT THAT THEY HAD NOT BEEN PAID.  THERE ARE
MANY INSTANCES IN WHICH A FINDING OF PAYMENT WILL HAVE TURNED ON
SUBSTANTIAL QUESTIONS OF FACT OR LAW UPON WHICH A DEFENDANT WAS
ENTITLED TO BE HEARD, BUT AS TO WHICH IT COULD NOT BE SAID THAT HIS
ANTAGONIST HAD PRACTICED FRAUD ON THE COURT.  MOREOVER, SOME AVAILABLE
DEFENSES OTHER THAN PAYMENT, AS FOR EXAMPLE, CHANGE OF THE HUSBAND'S
CIRCUMSTANCES, ARE OF SUCH NATURE AS TO AFFORD NO BASIS FOR ATTACKING
THE JUDGMENT AS FRAUDULENT.    FN5  IN THAYER V. THAYER, 145 APP. DIV.
268, 270-271, 129 N.Y.S. 1035, IT WAS SAID BY WAY OF DICTUM, "IF THE
COURT IS MISLED AND AN INSTALLMENT IMPROPERLY DOCKETED, THE DEFENDANT
WILL FIND NO DIFFICULTY IN HAVING THE MISTAKE CORRECTED."  BUT THAT
CASE WAS DECIDED BEFORE THE ADOPTION OF SEC. 1170 OF THE NEW YORK CIVIL
PRACTICE ACT PERMITTING THE MODIFICATION OF ANY ALIMONY DECREE NUNC PRO
TUNC BY REDUCING THE AMOUNT OF ACCRUED ALIMONY.  SEE NOTE 2, SUPRA.  WE
CANNOT ASSUME THAT THE "MISTAKE" CONTEMPLATED BY THAT OPINION WAS ONE
NOT RELATING TO PAYMENT OR DISCHARGE.  WHETHER UNDER NEW YORK PRACTICE
A JUDGMENT FOR ACCRUED ALIMONY, DOCKETED WITHOUT NOTICE, COULD BE
OPENED AND THE AMOUNT OF ACCRUED ALIMONY REDUCED NUNC PRO TUNC, REMAINS
A MATTER FOR SPECULATION.  IN ANY CASE, SEC. 1170 ITSELF DOES NOT
APPEAR TO AUTHORIZE A MOTION TO SET ASIDE A JUDGMENT DOCKETED FOR
ALIMONY ACCRUED UNDER AN EARLIER DECREE DIRECTING PAYMENT OF
INSTALLMENTS OF ALIMONY. 

FN6  SEE BARBER V. BARBER, 323 U.S. AT 81; JACOBS, THE ENFORCEMENT OF
FOREIGN DECREES FOR ALIMONY (1939), 6 LAW & CONTEMPORARY PROBLEMS, 250,
263-4. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, DISSENTING IN PART. 

I CONCUR IN THE OPINION EXCEPT AS IT HOLDS OR IMPLIES THAT THE 1938
NEW YORK JUDGMENT IS INVALID AND THEREFORE IS NOT ENTITLED TO FULL
FAITH AND CREDIT IN SO FAR AS IT INCLUDES INSTALMENTS OF ALIMONY
ACCRUING AFTER OCTOBER 25, 1935, AND INTEREST UPON THEM. 

THE COURT APPARENTLY REGARDS THE JUDGMENT AS INVALID TO THIS EXTENT
BECAUSE, UNDER THE NEW YORK PROCEDURE, IT WAS DOCKETED WITHOUT NOTICE
TO THE PETITIONER ADDITIONAL TO THE NOTICE HE HAD RECEIVED IN THE
ORIGINAL PROCEEDING FOR DIVORCE WHICH RESULTED IN THE 1924 DECREE
MODIFIED IN 1926 TO PROVIDE FOR THE MONTHLY ACCRUAL AND PAYMENT OF
THESE INSTALMENTS. 

THE BASES FOR THIS VIEW SEEM TO REST IN TWO ASSUMPTIONS.  ONE IS THAT
THE 1938 JUDGMENT, EXCEPT AS TO THE ARREARS ACCUMULATED TO OCTOBER 25,
1935, IS PRECISELY THE SAME AS ANY OTHER MONEY JUDGMENT AND THEREFORE
FALLS WITHIN THE PROHIBITION OF PENNOYER V. NEFF, 95 U.S. 714.  IN THIS
VIEW THE ABSENCE OF FURTHER NOTICE IS EQUIVALENT TO THE ABSENCE OF ANY;
AND THE JUDGMENT BECOMES INVALID FOR WANT OF DUE PROCESS FOR PURPOSES
OF LOCAL ENFORCEMENT AS WELL AS FOR RECEIVING FULL FAITH AND CREDIT IN
OTHER JURISDICTIONS.  FN1  THE SECOND ASSUMPTION IS THAT THE DOCKETING
OF THE JUDGMENT CUT OFF PETITIONER'S RIGHT TO MAKE ANY OF THE DEFENSES,
RELATING TO MATTERS ARISING AFTER ENTRY OF THE 1924 DECREE, WHICH BY
THE LAW OF NEW YORK HE WAS ENTITLED TO MAKE (AND WHICH HE DID MAKE IN
1935 CONCERNING ARREARS THEN ACCRUED) AT ANY TIME PRIOR TO DOCKETING OF
THE JUDGMENT.  I AM UNABLE TO ACCEPT EITHER OF THESE ASSUMPTIONS. 

                                  I. 

IF IT WERE CLEAR, AS THE COURT SEEMS TO HOLD, THAT PETITIONER'S RIGHT
TO MAKE THE ALLOWABLE DEFENSES WAS EXTINGUISHED UNDER THE NEW YORK LAW
BY THE DOCKETING OF THE JUDGMENT, WE WOULD BE CONFRONTED WITH THE
NECESSITY OF DETERMINING WHETHER THAT FACT WOULD BRING THE CASE WITHIN
THE RULE AND THE REASON OF PENNOYER V. NEFF, SUPRA, AND LATER CASES
FOLLOWING THAT DECISION.  FN2  IN THAT EVENT, THE QUESTION TO BE
DECIDED WOULD BE WHETHER IT IS WITHIN THE POWER OF A STATE TO PROVIDE
THAT, AFTER FULL NOTICE AND HEARING IN A JUDICIAL PROCEEDING RESULTING
IN A DECREE FOR ALIMONY TO BE PAID IN MONTHLY INSTALMENTS INDEFINITELY,
THOSE INSTALMENTS SHOULD OR MIGHT BE DOCKETED IN THE FORM OF JUDGMENTS
FOR SPECIFIC AMOUNTS AS THEY ACCRUE WITHOUT FURTHER NOTICE TO THE
DEFENDANT; BUT WITH THE QUALIFICATION THAT HE SHOULD HAVE THE RIGHT TO
COME IN AT ANY TIME BEFORE AN INSTALMENT IS DOCKETED AND SHOW THAT THE
CIRCUMSTANCES COMPREHENDED BY THE ORIGINAL DECREE HAVE SO CHANGED AS TO
ENTITLE HIM TO REDUCE OR TERMINATE THE PAYMENTS.  THE EFFECT OF SUCH A
PROVISION WOULD BE SIMPLY TO PUT UPON THE DEFENDANT, AGAINST WHOM THE
DECREE HAD BEEN RENDERED, THE BURDEN OF BRINGING TO THE COURT'S
ATTENTION AND PROVING THE CHANGED SITUATION. 

IT IS DIFFICULT TO SEE HOW SUCH A PROVISION COULD CONSTITUTE A WANT
OF DUE PROCESS OR OF NOTICE IN THE JURISDICTIONAL SENSE CONTEMPLATED BY
THE PENNOYER V. NEFF LINE OF DECISIONS.  NOR HAS THIS COURT SO HELD
HERETOFORE.  BY THE VERY TERMS OF THE ALIMONY DECREE IT IS ADJUDICATED
THAT THE DEFENDANT IS LIABLE TO PAY THE INSTALMENTS AS THEY ACCRUE. 
AND ALSO BY ITS TERMS, TOGETHER WITH THE APPLICABLE STATUTES, HE IS
NOTIFIED THAT THE INSTALMENTS WILL BE, OR MAY BE, DOCKETED AS JUDGMENTS
ENFORCEABLE BY EXECUTION, UNLESS HE TAKES THE INITIATIVE IN SHOWING TO
THE COURT BEFORE THE ACCRUAL DATE, OR ANY LATER TIME WHEN THE PLAINTIFF
MAY MOVE FOR ENTRY OF JUDGMENT, THAT NEW CONDITIONS HAVE ARISEN
REQUIRING OR JUSTIFYING CHANGE OR TERMINATION.  MOREOVER, IN ADDITION
TO THE NOTICE PETITIONER HAD RECEIVED FROM THE ORIGINAL DECREE AND THE
APPLICABLE STATUTES, HE RECEIVED FURTHER NOTICE FROM THE 1936 ORDER,
ENTERED AFTER CONTEST, BY VIRTUE OF THE COURT'S FINDING THAT HE THEN
HAD NO SUFFICIENT GROUND FOR SECURING A REDUCTION, ALTHOUGH HE HAD
CONTENDED THAT HE WAS FINANCIALLY UNABLE TO MEET THESE PAYMENTS. 

I CANNOT UNDERSTAND WHY SUCH NOTICE, CLEARLY AND UNEQUIVOCALLY GIVEN
IN ADVANCE, IS NOT SUFFICIENT BOTH TO INFORM THE DEFENDANT FULLY OF HIS
PERIL AND TO AFFORD FULL CONSTITUTIONAL PROTECTION FOR HIS RIGHTS.  FN3
ON THE OTHER HAND, TO COMPEL THE WIFE TO GIVE ADDITIONAL NOTICE BEFORE
DOCKETING OF EACH INSTALMENT IS TO SHIFT TO HER THE BURDEN WHICH THE
ORIGINAL DECREE PLACES SQUARELY ON THE HUSBAND.  MOREOVER, IN MANY
CASES WHERE THE AMOUNT OF THE MONTHLY OR WEEKLY INSTALMENT IS SMALL,
THE EFFECT WILL BE PRACTICALLY TO NULLIFY THE PROVISION FOR PAYMENT OF
ALIMONY, BECAUSE THE COST OF PUBLISHING OR OTHERWISE GIVING NOTICE WILL
EQUAL OR EXCEED THE AMOUNT OF THE INSTALMENT.  FN4  A MORE PERFECT TOOL
HARDLY COULD BE GIVEN TO AN ABSENT OR ABSCONDING HUSBAND FOR DEFEATING
THE SUBSTANCE OF THE AWARD. 

DUE PROCESS DOES NOT REQUIRE THAT NOTICE OF SUIT BE GIVEN MORE THAN
ONCE OR, WHEN THIS HAS BEEN DONE AND A VALID JUDGMENT ENTERED, THAT
ADDITIONAL NOTICE MUST BE GIVEN BEFORE EXECUTION, ORIGINAL OR ALIAS. 
FN5  JURISDICTION OVER THE PERSON HAVING BEEN OBTAINED IN THE ORIGINAL
PROCEEDING ON ADEQUATE NOTICE, FURTHER STEPS IN THE PROCEEDINGS ARE
LARGELY WITHIN THE COURT'S DISCRETION, EXCEPT IN SO FAR AS THEY ARE
CONTROLLED BY STATUTE, INCLUDING PROCEEDINGS AFTER JUDGMENT AND ON
EXECUTION.  TRUE, THESE LATER STEPS MAY NOT BE TAKEN ARBITRARILY.  FN6
BUT THAT LIMITATION DOES NOT REQUIRE THE GIVING OF NOTICE AT EACH
SUCCESSIVE STAGE AS UPON THE ORIGINAL SERVICE OF SUMMONS.  NOR DOES IT
FORBID THE COURT OR THE LEGISLATURE TO PLACE UPON THE DEFENDANT OR
OTHER PARTIES RESPONSIBILITY FOR KEEPING THEMSELVES INFORMED CONCERNING
THE PROGRESS OF THE CAUSE.  JUDGMENT BY DEFAULT, WITHOUT FURTHER NOTICE
THAN A STATUTORY WARNING TO TAKE STEPS TO WARD IT OFF, IS AN EVERYDAY
OCCURRENCE.  AFTER JUDGMENT THE BURDEN OF TAKING THE INITIATIVE TO
AVOID THE ADJUDICATION'S EFFECT FALLS EVEN MORE HEAVILY UPON THE
DEFENDANT.  UNLESS HE ASSUMES AND DISCHARGES IT, HE CANNOT HOLD UP
EXECUTION FOR WANT OF SPECIAL NOTICE THAT AUTHORIZED STEPS TO REACH HIS
PROPERTY ARE ABOUT TO BE TAKEN.  GENERALLY SPEAKING, THE STAGE OF
EXECUTION IS COMMITTED LARGELY TO THE PLAINTIFF'S CONTROL; AND THAT
NOTICE MUST BE GIVEN TO THE DEFENDANT AT THAT STAGE BEFORE HIS PROPERTY
WITHIN THE COURT'S JURISDICTION CAN BE TAKEN TO SATISFY THE JUDGMENT IS
FOREIGN BOTH TO ACCEPTED CONCEPTIONS OF DUE PROCESS AND TO GENERALLY
PREVAILING STATUTORY SCHEMES FOR SECURING SATISFACTION. 

IN ACCORDANCE WITH THESE PRINCIPLES, IF AN ORDINARY MONEY JUDGMENT
WERE ENTERED FOR A FIXED SUM, BUT WITH AUTHORIZED PROVISION FOR PAYMENT
IN INSTALMENTS OVER A DEFINITE PERIOD, TO BE COLLECTED BY LEVY UPON
FAILURE TO PAY ANY INSTALMENT WHEN DUE, I FAIL TO SEE WHAT CONCEIVABLE
CONSTITUTIONAL OBJECTION COULD BE RAISED AGAINST THE JUDGMENT OR ANY
SUCH LEVY BY REASON OF FAILURE TO GIVE NOTICE OF THE INTENDED LEVY. 
NOR DO I SEE HOW SUCH A SCHEME COULD BE VITIATED WERE THE STATE
ADDITIONALLY TO REQUIRE THAT THE LEVY, INSTEAD OF BEING MADE
AUTOMATICALLY OR MINISTERIALLY AT THE PLAINTIFF'S INSTANCE, SHOULD BE
MADE ONLY AFTER FURTHER ORDER OF THE COURT, ENTERED EITHER OF ITS OWN
MOTION OR ON APPLICATION OF THE PLAINTIFF.  WHETHER JUDGMENTS SHALL BE
PAID IN A LUMP SUM OR BY INSTALMENTS AND IN EITHER EVENT WHETHER
EXECUTION SHALL ISSUE AND BE LEVIED BY ONE FORM OF PROCEDURE OR
ANOTHER, WITH OR WITHOUT FURTHER NOTICE, ARE MATTERS WHOLLY OF POLICY
WITHIN STATE POWER TO DETERMINE, RAISING NO QUESTION OF CONSTITUTIONAL
IMPORT. 

THESE PRINCIPLES ARE NOT ALTERED FUNDAMENTALLY MERELY BECAUSE, IN
PROCEEDINGS FOR DIVORCE, THE DECREE PROVIDES THAT MONTHLY INSTALMENTS
SHALL CONTINUE FOR THE PERIOD OF NEED, IN ACCORDANCE WITH THE DUTY TO
SUPPORT IMPOSED BY MARRIAGE AND THE BIRTH OF CHILDREN,  FN7  AND TAKE
THE PLACE OF A LUMP SUM PAYMENT FIXED IN AMOUNT.  FN8  NOR DO THEY
BECOME INAPPLICABLE BECAUSE THE STATE SEES FIT, AS A MATTER OF POLICY,
TO ALLOW THE DEFENDANT TO SHOW THAT THE NEED, OR THE DUTY CREATED BY
THE DECREE, HAS ENDED; AT THE SAME TIME MAKING IT A CONDITION OF
SECURING SUCH RELIEF THAT HE SHALL TAKE THE INITIATIVE IN SHOWING THE
CHANGED SITUATION AND SHALL DO SO BEFORE LEVY IS MADE UNDER INSTALMENTS
AS THEY ACCRUE.  CERTAINLY THERE IS NOTHING UNREASONABLE, HARSH OR
ARBITRARY WHEN A STATE, AFTER FULL NOTICE AND HEARING, DETERMINES THAT
THE BASIC FAMILIAL OBLIGATION SHALL BE ENFORCED BY JUDICIAL DECREE
FORMULATED TO EMBODY THE OBLIGATION IN CLOSE ANALOGY, IF NOT EXACT
IDENTITY, WITH THE OBLIGATION'S SUBSTANTIVE CHARACTER, PARTICULARLY
WHEN IT AFFORDS THE HUSBAND OPPORTUNITY FOR SHOWING A CHANGE AFFECTING
THE SUBSTANCE OF THE OBLIGATION. 

THE FALLACY OF THE COURT'S ASSUMPTION, IT SEEMS TO ME, IS THAT THE
OPPORTUNITY IS INADEQUATE IF IT IS LIMITED TO THE PERIOD BEFORE THE DUE
DATE OF THE INSTALMENT ARRIVES OR SUCH LATER DATE AS THE WIFE MAY
SELECT TO ASK FOR ENTRY OF THE ORDER.  THE COURT HAS HELD A MUCH LESS
EXTENDED PERIOD ADEQUATE, AS AGAINST CONSTITUTIONAL OBJECTIONS, FOR
PURPOSES OF MAKING DEFENSE IN CRIMINAL PROSECUTION.  YAKUS V. UNITED
STATES, 321 U.S. 414.  A FORTIORI, IN VIEW OF THE CHARACTER OF THE
OBLIGATION AND THE PREVIOUS ADJUDICATION UPON FULL NOTICE AND HEARING,
THE PERIOD ALLOWED BY THE NEW YORK LAW FOR MAKING FURTHER DEFENSE
SHOULD BE REGARDED AS CONSTITUTIONALLY SUFFICIENT, EVEN IF THAT LAW IS
THOUGHT TO CUT OFF THAT RIGHT OF DEFENSE WHEN THE ORDER FOR JUDGMENT IS
ENTERED. 

NO MORE IS INVOLVED THAN THAT THE HUSBAND IS COMMANDED TO MAKE
PAYMENT, UNLESS CONDITIONS HAVE CHANGED SO AS TO JUSTIFY NONPAYMENT
WHEN THE DUE DATE ARRIVES; AND, IF SUCH CHANGES HAVE TAKEN PLACE, HE IS
ADEQUATELY WARNED THAT HE WILL BE PRECLUDED FROM PROVING OR RELYING
UPON THEM TO AVOID PAYMENT OF THE PREEXISTING JUDGMENT, UNLESS HE MAKES
THE SHOWING ON OR BEFORE THAT DATE.  IF THE HUSBAND'S DEFENSE IS
PAYMENT, HE WILL BE ABLE SUBSEQUENTLY TO VACATE OR ATTACK COLLATERALLY
THE JUDGMENT, SINCE ORDINARILY IT WOULD BE FRAUDULENT FOR THE WIFE TO
DOCKET A JUDGMENT FOR BACK ALIMONY NO LONGER OWED TO HER, AS THE
COURT'S OPINION SUGGESTS.  EVEN IF THERE WERE A LEGAL OR FACTUAL
DISPUTE RELATING TO PAYMENT AND THE WIFE HAD ACTED IN GOOD FAITH IN
DOCKETING THE JUDGMENT, AS IN A CASE WHERE SHE HAD ACTED IN IGNORANCE
OF PRIOR PAYMENT TO HER AGENT, IT IS INCONCEIVABLE THAT A COURT, UPON A
SHOWING OF PAYMENT, WOULD REFUSE TO VACATE THE JUDGMENT OR THAT EQUITY
WOULD NOT COME TO THE HUSBAND'S AID.  HER ATTEMPT TO ENFORCE THE
JUDGMENT OR RETAIN ITS PROCEEDS AFTER LEARNING OF THE SATISFACTION
WOULD BE FRAUDULENT. 

I KNOW OF NOTHING IN THE CONSTITUTION WHICH FORBIDS A STATE THUS TO
LIMIT THE HUSBAND'S RIGHT TO UPSET THE TERMS OF THE GENERAL DECREE OR
WHICH IMPOSES UPON THE WIFE THE DUTY OF KEEPING HIM INFORMED OF MATTERS
CONCERNING WHICH THE LAW OF THE STATE BINDS HIM TO INFORM HIMSELF. 
ACCORDINGLY, IF IT WERE CLEAR, AS THE COURT ASSUMES, THAT THE NEW YORK
LAW FORBIDS THE HUSBAND TO BRING FORWARD HIS NEW DEFENSES, IF ANY,
AFTER THE ENTRY OF THE JUDGMENT, I SHOULD SEE NO VALID CONSTITUTIONAL
OBJECTION TO THE JUDGMENT, OR A LEVY MADE PURSUANT TO IT, ON THE SCORE
OF WANT OF NOTICE ESSENTIAL TO DUE PROCESS.  FN9

                                 II. 

BUT I AM NOT CONVINCED THAT NEW YORK LAW HAS THE EFFECT OF CUTTING
OFF ALL RIGHT OF DEFENSE UPON THE DOCKETING OF AN INSTALMENT FOR THE
PURPOSES OF EXECUTION.  ALTHOUGH THIS COURT HELD IN SISTARE V. SISTARE,
218 U.S. 1, THAT UNDER NEW YORK LAW ACCRUED INSTALMENTS OF ALIMONY
COULD NOT BE MODIFIED, THIS IS NO LONGER THE CASE IN NEW YORK.  N.Y.
CIV. PRAC.  ACT SEC. 1170; VAN DUSEN V. VAN DUSEN, 258 APP. DIV. 1020,
17 N.Y.S.2D 96; EISINGER V. EISINGER, 261 APP. DIV. 1031, 26 N.Y.S.2D
22.  SEE ALSO KARLIN V. KARLIN, 280 N.Y. 32, 19 N.E.2D 669. 

IT IS SCARCELY PROBABLE THAT, ALTHOUGH SUCH MODIFICATION MAY BE MADE
AFTER ACCRUAL BUT BEFORE DOCKETING OF JUDGMENT, THE NEW YORK COURTS
WOULD HOLD THAT IT COULD NOT BE MADE AFTER THE FORMAL ACT OF
DOCKETING.  THE COURT POINTS TO NO DECISION WHICH SO RULES AND NONE HAS
BEEN CITED OR FOUND.  INDEED THE COURT'S OPINION INDICATES THAT THE
HUSBAND COULD SET ASIDE THE JUDGMENT UPON SHOWING HE HAD PAID THE
INSTALMENT WHICH IT INCLUDED.  AND IN THAYER V. THAYER, 145 APP. DIV.
268, 270-271, 129 N.Y.S. 1035, WHICH IS CONCEDEDLY LEADING AUTHORITY
UPON THIS GENERAL PHASE OF NEW YORK LAW, THE COURT SAID WITH REFERENCE
TO THE PRACTICE OF DOCKETING JUDGMENTS FOR BACK ALIMONY WITHOUT FURTHER
NOTICE THAN THAT GIVEN AS FOUNDATION FOR THE ORIGINAL DECREE:    "IT IS
SUFFICIENT THAT THE COURT IS SATISFIED FROM THE PROOF PRESENTED TO IT
THAT BOTH PARTIES ARE STILL ALIVE, AND THAT THE ALIMONY REMAINS
UNPAID.  IF THE COURT IS MISLED AND AN INSTALLMENT IMPROPERLY DOCKETED,
THE DEFENDANT WILL FIND NO DIFFICULTY IN HAVING THE MISTAKE
CORRECTED." 

AND IN CAPRIO V. CAPRIO, 169 MISC. 568, 572, 8 N.Y.S.2D 205, IT WAS
STATED: 

"THE DOCKETING OF A JUDGMENT FOR BACK ALIMONY IS A RECOGNIZED
PRACTICE  ...  AND THE JUDGMENT IS GOOD IF SUPPORTED BY FACTS, BUT,
LIKE ANY OTHER JUDGMENT, IT CAN BE SET ASIDE OR MODIFIED." 

THESE STATEMENTS MADE BY COURTS FAMILIAR WITH THE NEW YORK PRACTICE
PLAINLY INDICATE THAT IN CIRCUMSTANCES SUFFICIENT TO JUSTIFY SUCH
ACTION THE COURTS OF NEW YORK NOT ONLY WILL HEAR THE DEFENDANT'S
OBJECTIONS AFTER THE JUDGMENT IS DOCKETED BUT, AS IN OTHER CASES WHEN
THE SHOWING IS SUFFICIENT, WILL SET ASIDE THE JUDGMENT OR MODIFY IT AS
THE FACTS MAY REQUIRE.  THIS, OF COURSE, MAY NOT MEAN THAT HE WILL BE
HEARD TO RAISE THE IDENTICAL OBJECTIONS WHICH HE MIGHT HAVE PRESENTED
BEFORE DOCKETING, SINCE IT IS ENTIRELY POSSIBLE FOR THE COURT TO FIND
THAT HE WAS LACKING IN APPROPRIATE DILIGENCE IN PRESENTING THEM AND
SHOULD NOT HAVE FURTHER OPPORTUNITY TO DO SO IN VIEW OF THAT FACT. 
BUT, WHETHER OR NOT THIS IS TRUE, THE QUOTED STATEMENTS OF NEW YORK
PRACTICE CLEARLY INDICATE THAT IN ANY CASE OF SERIOUS HARDSHIP THE
DEFENDANT WILL NOT BE FORECLOSED, MERELY BY THE DOCKETING OF THE
JUDGMENT, FROM ADVANCING HIS OBJECTIONS BY APPROPRIATE PROCEDURE AND
HAVING THEM DETERMINED.  IN THE FACE OF SUCH AUTHORITATIVE EXPRESSIONS
CONCERNING THE LOCAL LAW AND PRACTICE AND IN THE ABSENCE OF ANY
CONTRARY EXPRESSION FROM A SOURCE OF SIMILAR AUTHORITY, THIS COURT
SHOULD NOT SUBSTITUTE ITS OWN LONG-DISTANCE JUDGMENT OR ASSUMPTION TO
THE OPPOSITE EFFECT, ESPECIALLY SINCE ON ITS OWN THEORY THE
CONSTITUTIONALITY OF THE NEW YORK STATUTE IN QUESTION FALLS ON SUCH AN
ASSUMPTION.  FN10

                      III. 

IF THIS VIEW OF THE NEW YORK LAW IS CORRECT, THE NEW YORK JUDGMENT IS
NOT WHOLLY VOID FOR WANT OF DUE PROCESS; FOR THE PETITIONER IS NOT
DEPRIVED OF ANY RIGHT OF DEFENSE WHICH HE MAY BE ENTITLED TO MAKE.  IT
IS NOT APPARENT, NOR HAS HE SHOWN, THAT EVEN NOW HE COULD NOT MAKE FULL
DEFENSE UPON ANY SUBSTANTIALLY MERITORIOUS GROUND IN THE NEW YORK
COURTS AND SUCCEED IN HAVING THE JUDGMENT SET ASIDE. 

NOR, AS PETITIONER HAS MADE HIS CASE, IS THE QUESTION PRESENTED
WHETHER THE NEW YORK JUDGMENT IS SO LACKING IN FINALITY THAT IT IS NOT
ENTITLED TO RECEIVE FULL FAITH AND CREDIT IN OTHER JURISDICTIONS.  FN11
BUT IF THAT QUESTION IS TAKEN TO LURK INESCAPABLY IN THE RECORD, IN
THE VIEW WHICH I HAVE TAKEN OF THE STATE OF THE NEW YORK LAW, IT DOES
NOT FOLLOW THAT THE OBJECTION IS VALID. 

THE JUDGMENT UNDER NEW YORK LAW IS PRIMA FACIE VALID, IF IT IS NOT
CONCLUSIVELY SO.  IT AFFORDS FOUNDATION FOR THE ISSUANCE AND LEVY OF
EXECUTION.  IN THE ABSENCE OF TIMELY ASSERTION OF GROUNDS REQUIRING IT
TO BE SET ASIDE, IT BECOMES CONCLUSIVE. 

THIS COURT HAS NOT HERETOFORE HELD THAT SUCH A JUDGMENT IS NOT
ENTITLED TO FULL FAITH AND CREDIT.  CONTRARY DICTA REFLECTING THE
BELIEF THAT IT WOULD BE LACKING IN NECESSARY FINALITY ARE, IN MY
OPINION, NEITHER CONCLUSIVE NOR SOUND.  CERTAINLY IN THE ABSENCE OF ANY
SUGGESTION THAT THE JUDGMENT HAS BEEN QUESTIONED IN THE FORUM WHERE
RENDERED, ADEQUATE OPPORTUNITY BEING THERE AFFORDED, NOTHING BUT THE
MOST TECHNICAL AND ABSOLUTE CONCEPTION OF "FINALITY" COULD BE THOUGHT
TO DEPRIVE IT OF CREDIT.  BEYOND THIS, IT IS NOT APPARENT WHY ALL
SUBSTANTIAL RIGHTS OF THE DEFENDANT WOULD NOT BE FULLY SECURED, IF THE
SAME EFFECT WERE GIVEN TO THE NEW YORK JUDGMENT IN THE SUIT BROUGHT
UPON IT ELSEWHERE AS IT HAS IN NEW YORK. 

IN THE PRESENT CASE THIS WOULD MEAN THAT THE JUDGMENT WOULD BE
ENFORCED IN THE COURTS OF THE DISTRICT OF COLUMBIA, UNLESS AFTER
SERVICE OF SUMMONS IN THE SUIT FOR ENFORCEMENT THERE THE DEFENDANT
COULD SHOW TO THE COURT'S SATISFACTION A CHANGE IN CIRCUMSTANCES OR
OTHER DEFENSE SUFFICIENT UNDER NEW YORK LAW TO REQUIRE MODIFICATION OR
SETTING ASIDE OF THE AWARD.  INDEED THE COURT DOES NOT ALTOGETHER
FORECLOSE THIS POSSIBILITY, SINCE IT RESERVES THE QUESTION WHETHER,
UPON FURTHER PROCEEDINGS IN THE DISTRICT COURT, THE WIFE MAY AMEND HER
CLAIM SO AS TO REST UPON THE 1924 DECREE, AS MODIFIED IN 1926; AND THE
HUSBAND THEN MAY MAKE HIS DEFENSES ALLOWED BY NEW YORK LAW.  IF THAT
CAN BE DONE WITH REFERENCE TO THE ORIGINAL DECREE, I SEE NO REASON WHY
THE SAME THING SHOULD BE FORBIDDEN AS TO THE 1938 JUDGMENT.  AND I
THINK THE QUESTION SHOULD BE DETERMINED NOW, NOT IN STILL ANOTHER
CHAPTER OF THIS LONG DRAWN OUT LITIGATION. 

THE FULL FAITH AND CREDIT CLAUSE DOES NOT IN ANY CASE REQUIRE THAT A
JUDGMENT, TO BE CREDITED, MUST BE ENDOWED WITH ABSOLUTE FINALITY.  IT
IS ENOUGH, IN MY OPINION, IF THE JUDGMENT IS ENDOWED BY THE LAW OF ITS
ORIGIN WITH FINALITY SUFFICIENT TO SUSTAIN THE ISSUANCE AND LEVY OF
EXECUTION, ALTHOUGH THE SAME LAW MAY AFFORD AN OPPORTUNITY FOR SETTING
ASIDE OR MODIFYING IT UPON THE MAKING OF A SPECIFIED SHOWING.  THIS IS
TRUE, IN MY OPINION, WHETHER THE SUIT IS ON THE 1938 JUDGMENT OR ON THE
ORIGINAL DECREE.  THERE IS NO SOUND GROUND FOR DISTINGUISHING THEM SO
AS TO PERMIT SUIT, WITH THE RIGHT DEFENSE, UPON THE ONE AND NOT UPON
THE OTHER.  THE CONSIDERATIONS STATED BY MR. JUSTICE JACKSON IN HIS
CONCURRING OPINION IN BARBER V. BARBER, 323 U.S. 77, 86, SUFFICIENTLY
STATE THE REASONS SUPPORTING THE VIEWS SET FORTH IN THIS PARAGRAPH. 
FN12 

ACCORDINGLY, WHETHER ONE VIEW OR THE OTHER OF THE NEW YORK LAW IS
TAKEN, I THINK THE 1938 NEW YORK JUDGMENT IS ENTITLED TO FULL FAITH AND
CREDIT IN THE DISTRICT OF COLUMBIA N13, ACCORDING TO THE EXACT EFFECT
IT HAD IN NEW YORK.  SINCE, IN MY OPINION, THE LAW OF THAT STATE
ALLOWED THE DEFENDANT ON PROPER SHOWING TO MAKE THE DEFENSE OF CHANGE
IN SITUATION, WHETHER BEFORE OR AFTER THE DOCKETING OF THE JUDGMENT,
THE SAME EFFECT SHOULD BE GIVEN TO THE JUDGMENT IN THE DISTRICT OF
COLUMBIA.  AS NO ADEQUATE BASIS FOR MODIFYING THE JUDGMENT WAS TENDERED
OR PROVED BY THE DEFENDANT IN THE DISTRICT OF COLUMBIA PROCEEDING, I
THINK THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE AFFIRMED IN ITS
ENTIRETY. 

FN1  "...  THE DULY ATTESTED RECORD OF THE JUDGMENT OF A STATE IS
ENTITLED TO SUCH FAITH AND CREDIT IN EVERY COURT WITHIN THE UNITED
STATES AS IT HAS BY LAW OR USAGE IN THE STATE FROM WHICH IT IS TAKEN." 
ADAM V. SAENGER, 303 U.S. 59, 62; HANLEY V. DONOGHUE, 116 U.S. 1, 5;
HAMPTON V. M'CONNEL, 3 WHEAT.  234; MILLS V. DURYEE, 7 CRANCH 481; 28
U.S.C. SEC. 687. 

IN THIS CASE WE ARE NOT CONCERNED WITH THE POSSIBLE EXCEPTION TO THE
GENERAL RULE IMPLICIT IN THE SITUATION PRESENTED BY WILLIAMS V. NORTH
CAROLINA, 325 U.S. 226, THAT A DECREE FOR DIVORCE, ALTHOUGH NOT
ENTITLED TO FULL FAITH AND CREDIT IN OTHER STATES, STILL MAY BE VALID
AS A MATTER OF DUE PROCESS IN THE STATE WHERE RENDERED. 

FN2  SEE MCDONALD V. MABEE, 243 U.S. 90; MILLIKEN V. MEYER, 311 U.S.
457.  SEE ALSO RESTATEMENT, JUDGMENTS, SEC. 6, COMMENT B; SEC. 16,
COMMENT B; BURDICK, SERVICE AS A REQUIREMENT OF DUE PROCESS IN ACTIONS
IN PERSONAM (1922) 20 MICH. L. REV. 422. 

FN3  CF. NOTES 9 AND 13. 

FN4  IT IS NO ANSWER TO SAY THAT THE WIFE MAY REDUCE THE COST OF
PUBLICATION OR GIVING OTHER FORM OF NOTICE BY ALLOWING THE INSTALMENTS
TO ACCRUE OVER LONG PERIODS OF TIME AND THEN MOVING FOR ENTRY OF
JUDGMENT IN THE AGGREGATE SUM, AS THE WIFE WAS FORCED TO DO IN THIS
CASE.  THE VERY PURPOSE OF THE PROVISION FOR PAYMENT BY INSTALMENTS,
RATHER THAN IN A LUMP SUM, IS TO ASSURE THAT THE WIFE SHALL HAVE THEM
AS THEY ACCRUE, AS MUCH AS IT IS THAT THE HUSBAND SHALL BE ALLOWED TO
EARN THEM AS TIME GOES ALONG.  SHE MAY BE DEPENDENT FOR SUPPORT OF
HERSELF AND CHILDREN MORE UPON THE PROMPTNESS OF THE PAYMENTS THAN UPON
THEIR ULTIMATE CERTAINTY.  AND ANY TECHNICAL REQUIREMENT FOR NOTICE
ADDITIONAL TO THAT GIVEN BY THE ORIGINAL DECREE CAN ONLY RESULT IN
DEPRIVING THE WIFE OF HER RIGHT TO PROMPT PAYMENT, IF THE HUSBAND CAN
TAKE ADVANTAGE OF THE REQUIREMENT AND THE SMALL AMOUNT OF THE
INSTALMENTS TO COMPEL HER TO LET THEM ACCUMULATE.  BECAUSE DELAY SO
OFTEN RESULTS IN LOSS OF SUBSTANTIAL RIGHTS, THE EFFECT FREQUENTLY WILL
BE ALSO TO MAKE IMPOSSIBLE THE ULTIMATE AS WELL AS THE IMMEDIATE
COLLECTION OF WHAT IS DUE; AND TO SUBSTITUTE A RIGHT OF LIFELONG
LITIGATION FOR ONE OF CERTAIN MEANS OF SUBSISTENCE.  THE FACTS OF THIS
CASE AFFORD ABUNDANT ILLUSTRATION OF BOTH POSSIBILITIES. 

FN5  SEE ENDICOTT JOHNSON CORP. V. ENCYCLOPEDIA PRESS, 266 U.S. 285;
TAYLOR V. STOWE, 218 MASS. 248, 105 N.E. 890. 

FN6  SEE BROWN V. BROWN, 62 R.I. 375, 6 A.2D 144; STATE EX REL. LANE
V. MONTGOMERY, 221 MO. APP. 1043, 295 S.W. 824. 

FN7  THERE ARE TWO PRINCIPAL THEORIES AS TO THE NATURE OF ALIMONY. 
THE MODERN VIEW IS THAT ALIMONY "IS A RIGHT OF THE SAME CHARACTER AS
THE RIGHT OF SUPPORT LOST BY THE DISSOLUTION OF THE MARRIAGE."  THE
HISTORICAL VIEW IS THAT ALIMONY "IS A SETTLEMENT OF THE PROPERTY RIGHTS
OF THE PARTIES AND A DISTRIBUTION OF THE ASSETS OF THE QUASI
PARTNERSHIP HITHERTO EXISTING."  KELSO, THE CHANGING SOCIAL SETTING OF
ALIMONY LAW (1939) 6 LAW & CONTEMP.  PROB.  186, 194-195; WILSON V.
HINMAN, 182 N.Y. 408, 410-412, 75 N.E. 236. 

FN8  THE DUTY OF SUPPORT, INCURRED UPON MARRIAGE, IS NOT MERELY THE
DUTY OF A DEBTOR ARISING UPON A COMMERCIAL TRANSACTION FOR THE PAYMENT
OF A FIXED SUM WITH INTEREST.  BARBER V. BARBER, 217 N.C. 422, 428, 8
S.E.2D 204.  NOR IS A JUDGMENT WHICH ENFORCES THAT DUTY TO BE TREATED
IN ALL RESPECTS AS ONE UPON A COMMERCIAL OBLIGATION IN ORDER TO BE
CONSTITUTIONALLY VALID. 

FN9  SEE JONES V. JONES, 204 ARK. 654, 163 S.W.2D 528; ALSO THE
AUTHORITIES CITED IN NOTE 13.  IT DOES NOT FOLLOW, HOWEVER, THAT WHEN
ALIMONY DECREES ARE ENFORCED BY OTHER MEANS, FOR EXAMPLE THROUGH
EXERCISE OF THE CONTEMPT POWER, NOTICE MAY NOT BE REQUIRED.  CF. MILLER
V. MILLER, 79 COLO. 118, 244 P. 66. 

FN10  THE DECLARATION IN SISTARE V. SISTARE, 218 U.S. 1, 22, QUOTED
IN BARBER V. BARBER, 323 U.S. 77, 82, THAT "EVERY REASONABLE
IMPLICATION MUST BE RESORTED TO AGAINST THE EXISTENCE OF" A POWER TO
MODIFY OR REVOKE INSTALMENTS OF ALIMONY ALREADY ACCRUED "IN THE ABSENCE
OF CLEAR LANGUAGE MANIFESTING AN INTENTION TO CONFER IT" WAS ADDRESSED
TO A DIFFERENT QUESTION, FINALITY FOR PURPOSES OF FULL FAITH AND
CREDIT, CF. PART III OF THIS OPINION, AND, IF APPLIED IN THIS CASE,
WOULD BE IN DIRECT CONTRADICTION OF THE RULE THAT LEGISLATION IS
PRESUMPTIVELY CONSTITUTIONAL. 

UNDER THE DECISION OF THE COURT, SEC. 1171-B OF THE NEW YORK CIVIL
PRACTICE ACT MAY ALSO BE UNCONSTITUTIONAL, AS THAT SECTION, ENACTED
SINCE THE ENTRY OF THE 1938 JUDGMENT, PROVIDES THAT THE APPLICATION FOR
AN ORDER DIRECTING THE ENTRY OF JUDGMENT FOR ARREARS IN ALIMONY "SHALL
BE UPON SUCH NOTICE TO THE HUSBAND AS THE COURT MAY DIRECT."  IT MAY BE
THAT UNDER THIS WORDING THE NEW YORK COURTS NEED NOT DIRECT ANY NOTICE
AT ALL. 

FN11  TO HAVE OBJECTED THAT THE NEW YORK JUDGMENT WAS NOT
SUFFICIENTLY FINAL TO BE ENTITLED TO RECEIVE FULL FAITH AND CREDIT
WOULD HAVE BEEN IN CONTRADICTION OF PETITIONER'S OBJECTION THAT IT
DEPRIVED HIM OF DUE PROCESS, SINCE HIS DUE PROCESS ARGUMENT IS FOUNDED
IN THE VIEW THAT HIS RIGHTS HAVE BEEN CONCLUSIVELY ADJUDICATED. 

FN12  IT WAS JUST SUCH RIGID NOTIONS OF FINALITY WHICH LONG PREVENTED
RECOGNITION OF THE COURT OF CLAIMS AS A JUDICIAL BODY.  SEE GORDON V.
UNITED STATES, 2 WALL.  561, 117 U.S. 697; UNITED STATES V. KLEIN, 13
WALL.  128, 144-145.  SUBSEQUENTLY THE GOVERNING STATUTE OF THE COURT
OF CLAIMS WAS AMENDED, AND SINCE THAT TIME IT HAS NEVER BEEN DOUBTED
THAT CONGRESS MAY AUTHORIZE AN APPEAL TO THIS COURT FROM A FINAL
JUDGMENT OF THE COURT OF CLAIMS.  UNITED STATES V. KLEIN, SUPRA;
WILLIAMS V. UNITED STATES, 289 U.S. 553, 563-564. 

EVEN IF THE JUDGMENT WERE NOT SUFFICIENTLY FINAL FOR FULL FAITH AND
CREDIT PURPOSES, IT NEVERTHELESS WOULD BE WITHIN THE DISCRETION OF THE
DISTRICT OF COLUMBIA TO GIVE IT EFFECT ON GROUNDS OF COMITY.  THE FULL
FAITH AND CREDIT CLAUSE COMMANDS STATES IN CERTAIN INSTANCES TO
RECOGNIZE THE JUDGMENTS OF SISTER STATES; IT DOES NOT PROHIBIT THEM
FROM DOING SO IN OTHER INSTANCES.  SEE JACOBS, THE ENFORCEMENT OF
FOREIGN DECREES FOR ALIMONY (1939) 6 LAW & CONTEMP.  PROB.  250, 263
264.  SEE GENERALLY NOTE, THE FINALITY OF JUDGMENTS IN THE CONFLICT OF
LAWS (1941) 41 COL. L. REV. 878, 884-887. 

UPON THE COURT'S TREATMENT OF THE NORTH CAROLINA LAW IN BARBER V.
BARBER, THE RESERVATIONS MADE BY MR. JUSTICE JACKSON WERE PERHAPS NOT
REQUIRED, SINCE ON THAT TREATMENT THE QUESTION NOW PRESENTED WAS NOT
INVOLVED. 

FN13  SEE DADMUN V. DADMUN, 279 MASS. 217, 181 N.E. 264, WHERE THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS GAVE FULL FAITH AND CREDIT TO A
NEW YORK JUDGMENT FOR ARREARS IN ALIMONY WHICH HAD BEEN ENTERED WITHOUT
NOTICE TO THE DEFENDANT; NELSON, DIVORCE AND ANNULMENT (2D ED.)  SEC. 
33.45; CF. BARNS V. BARNS, 9 CAL. APP.2D 427, 50 P.2D 463; DEFOE V.
DEFOE, 116 W. VA. 197, 179 S.E. 74. 

MR. JUSTICE BLACK JOINS IN THIS OPINION. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

MY BROTHER RUTLEDGE HAS DISCUSSED IN DETAIL DIFFICULTIES INVOLVED IN
THE COURT'S DISPOSITION OF THIS CASE AND I SHALL STATE BRIEFLY THE
GROUNDS FOR MY SUPPORT OF HIS CONCLUSION. 

THE OPPORTUNITY TO DEFEAT A CLAIM - THE RIGHT TO NOTICE BEFORE A
COURT CAN DETERMINE LIABILITY - IS A SAFEGUARD GUARANTEED BY THE DUE
PROCESS CLAUSE.  BUT MONEY JUDGMENTS ARE NOT LIKE PEAS IN A POD. 
BECAUSE OF DIFFERENCES IN THE SOURCE AND FUNCTION OF LIABILITY, THE
DEMAND OF FAIRNESS WHICH UNDERLIES THE REQUIREMENT OF NOTICE MAY WELL
BE SATISFIED BY DIFFERENT PROCEDURES.  A JUDGMENT FOR FUTURE ALIMONY,
AS ONE OF THE INCIDENTS OF JURISDICTION TO DECREE A DIVORCE, IS VERY
UNLIKE A JUDGMENT FOR THE ORDINARY LUMP SUM INDEBTEDNESS.  IT IS IN
EFFECT AN AMBULATORY JUDGMENT FOR EACH INSTALMENT AS IT BECOMES DUE. 
THE OBLIGATION TO PAY ARREARS FLOWS FROM THE ORIGINAL JUDGMENT AND MAY
BE PURSUED UPON THAT JUDGMENT ELSEWHERE THAN IN THE RENDERING STATE. 
BARBER V. BARBER, 21 HOW.  582; SISTARE V. SISTARE, 218 U.S. 1.  FOR
PURPOSES OF SUABILITY AS A JUDGMENT ELSEWHERE, THE ACCRUED INSTALMENTS
NEED NOT BE REDUCED TO JUDGMENT ANEW IN THE STATE OF THE ORIGINAL
DECREE, WHATEVER MAY BE THE REQUIREMENTS FOR THE EXECUTION OF THAT
JUDGMENT IN THE RENDERING STATE.    BUT IT IS SAID THAT THE STATE
RENDERING THE ORIGINAL JUDGMENT FOR ALIMONY MAY ALLOW, AS NEW YORK HAS
DONE HERE, MITIGATION OF SUCH JUDGMENT EVEN AS TO ACCRUED INSTALMENTS. 
IF SO, SUCH MITIGATING DEFENSES MAY BE SET UP WHEN THE DECREE FOR
ALIMONY IS SUED ON IN A SISTER STATE AS WELL AS WHEN ENFORCED IN THE
RENDERING STATE.  A JUDGMENT MAY HAVE BEEN PAID AND YET A SUIT THEREON
MAY BE BROUGHT IN ANOTHER STATE.  WHILE SUCH A DEFENSE, IF WELL
FOUNDED, PRECLUDES A SECOND RECOVERY ON THAT JUDGMENT ANYWHERE, THE
AVAILABILITY OF SUCH A DEFENSE DOES NOT BAR SUIT ON SUCH A JUDGMENT IN
A SISTER STATE.  IT RUNS COUNTER TO NO REQUIREMENT OF DUE PROCESS TO
MAKE A JUDGMENT DEBTOR DEFEND A SUIT ON THAT JUDGMENT BY CLAIMING
DISCHARGE OF ITS LIABILITY, WHETHER THROUGH PAYMENT OR OTHERWISE.  SUCH
A PROCEDURE IS ENTIRELY CONSONANT WITH THE FULL FAITH AND CREDIT WHICH
"SHALL BE GIVEN IN EACH STATE TO THE  ...  JUDICIAL PROCEEDINGS OF
EVERY OTHER STATE."  ARTICLE IV, SEC. 1 OF THE CONSTITUTION; SEE THE
CONCURRING OPINION IN BARBER V. BARBER, 323 U.S. 77, 86, AT 87. 
MOREOVER, THE DISTRICT OF COLUMBIA, AS IS TRUE OF A STATE, SEE THOMPSON
V. THOMPSON, 226 U.S. 551, MAY AS A MATTER OF CONFLICT OF LAWS GO
BEYOND WHAT IS REQUIRED BY THE FULL FAITH AND CREDIT CLAUSE.  IF,
PERCHANCE, RELIEF FROM ACCRUED INSTALMENTS IS BASED ON CONSIDERATIONS
OF POLICY PECULIARLY WITHIN THE LOCAL UNDERSTANDING AND DISCRETIONARY
DETERMINATION OF JUDGES OF THE ORIGINATING JURISDICTION, SISTER STATE
TRIBUNALS HAVE AMPLE POWER OF ABSTENTION TO RESPECT SUCH LOCAL
QUALIFICATIONS.  IN ANY EVENT, ACCESS TO THIS COURT IS ALWAYS OPEN ON
SUCH A FEDERAL ISSUE. 

I AGREE THEREFORE WITH MY BROTHER RUTLEDGE THAT THE JUDGMENT BELOW
SHOULD BE AFFIRMED IN ITS ENTIRETY.  WHILE FORMALLY THE SUIT WAS ON THE
NEW YORK JUDGMENT OF 1938, THIS IN TURN WAS BASED ON THE ORIGINAL
JUDGMENT FOR ALIMONY.  THAT JUDGMENT IS IN THE RECORD AND IS THE REAL
SOURCE OF THESE PROCEEDINGS.  IF A MISDESCRIPTION OF A CRIMINAL
PROSECUTION IS DEEMED A FORMAL IRRELEVANCE SO LONG AS AN OFFENSE IS
INTRINSICALLY CHARGED, WILLIAMS V. UNITED STATES, 168 U.S. 382, A
MISDESCRIPTION BY THE PLEADER OF THE BASIS OF A SUIT FOR ACCRUED
INSTALMENTS ON A JUDGMENT FOR ALIMONY CAN HARDLY BE TOO TIGHT A KNOT
FOR COURTS TO UNTIE. 

PLEADINGS, PARTICULARLY IN A CASE OF THIS SORT, ARE NO LONGER TO BE
DEALT WITH IN THE SPIRIT OF BARON PARKE.  SEE L. HAND, THE DEFICIENCIES
OF TRIALS TO REACH THE HEART OF THE MATTER (1921), IN 3 LECTURES ON
LEGAL TOPICS, ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK (1926)
89.  A SUITOR IS ENTITLED TO HAVE RELIEF JUSTIFIED BY THE FACTS HE HAS
PLEADED, WHETHER HE HAS ACCURATELY DESCRIBED HIS PLEADING OR HAS ASKED
FOR RELIEF APPROPRIATE TO THE PLEADED FACTS.  SEE UNITED STATES V.
MEMPHIS COTTON OIL CO., 288 U.S. 62, 68-69; BEMIS BRO. BAG CO. V.
UNITED STATES, 289 U.S. 28, 34.  THE PURPOSE OF A COMPLAINT IS TO GIVE
THE DEFENDANT FAIR NOTICE OF THE CLAIM AGAINST HIM.  IF IT DOES THAT,
THE COMPLAINT IS LEGALLY SUFFICIENT.  GRIFFIN COULD HAVE HAD NO DOUBT
THAT HIS WIFE WAS SUING IN THE DISTRICT OF COLUMBIA FOR UNPAID
INSTALMENTS OF ALIMONY WHICH NEW YORK, AS PART OF THE DIVORCE
PROCEEDINGS, HAD DECREED IN HER FAVOR.  UPON THE RECORD BEFORE US THE
PETITIONER DISCLAIMED LIABILITY FOR THESE ARREARS ON GROUNDS WHICH DO
NOT SAVE HIM.  WE OUGHT NOT TO DENY LIABILITY FLOWING FROM A LIVE
JUDGMENT BY ASSUMING THAT THE PETITIONER HAS BETTER GROUNDS FOR
AVOIDING LIABILITY THAN THOSE THAT HE HAS ALREADY ASSERTED.  IF,
PERCHANCE, HE COULD SATISFY THE DISTRICT COURT THAT HE HAS FAILED TO
SET UP A VALID DEFENSE THROUGH A REASONABLE MISCONCEPTION OF WHAT WAS
THE ESSENCE OF HIS WIFE'S SUIT, NAMELY A SUIT FOR ARREARS OF ALIMONY
WHICH WERE HER DUE, IT WOULD NOT BE CASTING AN UNREASONABLE BURDEN ON
THE PETITIONER TO REQUIRE HIM TO MOVE TO SET ASIDE THE JUDGMENT ON
APPROPRIATE GROUNDS. 
..END :













BIGELOW V. RKO RADIO PICTURES, 327 U.S. 251 


NO. 444.  ARGUED FEBRUARY 7, 1946.  - DECIDED FEBRUARY 25, 1946.  - 150
F.2D 877, REVERSED. 


1.  PETITIONERS OWNED A MOTION PICTURE THEATRE IN CHICAGO.  SOME OF
THE RESPONDENTS WERE DISTRIBUTORS OF MOTION PICTURE FILMS; OTHERS OWNED
OR CONTROLLED MOTION PICTURE THEATRES IN CHICAGO.  PETITIONERS SUED
RESPONDENTS UNDER THE SHERMAN AND CLAYTON ACTS TO RECOVER TREBLE
DAMAGES.  THE GIST OF THE COMPLAINT WAS THAT, BY REASON OF AN UNLAWFUL
CONSPIRACY OF THE RESPONDENTS, PETITIONERS WERE PREVENTED FROM SECURING
PICTURES FOR EXHIBITION IN THEIR THEATRE UNTIL AFTER THE PREFERRED
EXHIBITORS HAD BEEN ABLE TO SHOW THEM IN EARLIER AND MORE DESIRABLE
RUNS, AND THAT PETITIONERS WERE THUS DISCRIMINATED AGAINST IN THE
DISTRIBUTION OF FEATURE FILMS IN FAVOR OF COMPETING THEATRES OWNED OR
CONTROLLED BY SOME OF THE RESPONDENTS.  IT APPEARED THAT, AFTER THE
INTRODUCTION IN 1937 OF THE PRACTICE OF SHOWING DOUBLE FEATURES,
PETITIONERS WERE NO LONGER ABLE TO SECURE FILMS WHICH HAD NOT HAD A
PRIOR SHOWING.  PETITIONERS CHARGED THAT IN CONSEQUENCE OF RESPONDENTS'
UNLAWFUL ACTS THEY HAD SUFFERED A LOSS OF EARNINGS IN EXCESS OF
$120,000 DURING THE 5-YEAR PERIOD FROM 1937 TO 1942.  TWO CLASSES OF
EVIDENCE WERE INTRODUCED BY PETITIONERS TO ESTABLISH THEIR DAMAGE.  ONE
WAS A COMPARISON OF EARNINGS DURING THE 5-YEAR PERIOD OF PETITIONERS'
THEATRE WITH THOSE OF A COMPARABLE THEATRE OF THE RESPONDENTS, WHICH
SHOWED A DIFFERENCE OF NEARLY $116,000 IN FAVOR OF THE LATTER.  THE
SECOND WAS A COMPARISON OF THE RECEIPTS OF PETITIONERS' THEATRE FOR THE
FIVE YEARS FOLLOWING JULY 1937 WITH THE RECEIPTS FOR THE FOUR YEARS
IMMEDIATELY PRECEDING, WHICH SHOWED A DECLINE AGGREGATING MORE THAN
$125,000.  THE JURY RETURNED A VERDICT FOR PETITIONERS IN THE SUM OF
$120,000, AND THE TRIAL COURT GAVE JUDGMENT FOR TREBLE THAT AMOUNT. 
THE CIRCUIT COURT OF APPEALS REVERSED ON THE SOLE GROUND THAT THE
EVIDENCE OF DAMAGE WAS INSUFFICIENT FOR SUBMISSION TO THE JURY, AND
DIRECTED ENTRY OF JUDGMENT FOR RESPONDENTS NON OBSTANTE VEREDICTO. 
HELD THAT THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE VERDICT FOR THE
PETITIONERS.  PP. 253-254, 266. 

(A)  THE EVIDENCE WAS AMPLE TO SUPPORT A JUST AND REASONABLE
INFERENCE THAT PETITIONERS WERE DAMAGED BY RESPONDENTS' ACTS.  P. 266. 

(B)  WHATEVER RESTRAINTS RESPONDENTS' DISTRIBUTION SYSTEM MAY HAVE
IMPOSED, AND WHETHER THE POLICY LATER ADOPTED OF SHOWING DOUBLE
FEATURES WAS OR WAS NOT ITSELF A PRODUCT OF AN UNLAWFUL CONSPIRACY,
PETITIONERS WERE ENTITLED, AS OF RIGHT, TO CONTINUE TO PURCHASE AND
SHOW FILMS WHICH HAD NOT HAD PRIOR SHOWING, FREE OF RESTRAINTS OF THE
UNLAWFUL DISTRIBUTION SYSTEM.  P. 262. 

(C)  A FAIR MEASURE OF THE DAMAGE TO THAT RIGHT OF THE PETITIONERS
WAS THE LOSS OF PETITIONERS' ADMISSION RECEIPTS RESULTING FROM THE
OPERATION OF THE UNLAWFUL DISTRIBUTING SYSTEM.  PP. 262-263. 

(D)  THE FACT THAT, BY REASON OF RESPONDENT'S TORTIOUS ACTS IN
MAINTAINING THE DISCRIMINATORY DISTRIBUTION SYSTEM, THE PETITIONERS
WERE UNABLE TO PROVE WHAT THEIR EARNINGS WOULD HAVE BEEN UNDER FREELY
COMPETITIVE CONDITIONS, DID NOT PRECLUDE A VERDICT FOR THE
PETITIONERS.  P. 263. 

(E)  THE COMPARISON OF PETITIONERS' RECEIPTS BEFORE AND AFTER
RESPONDENTS' UNLAWFUL ACTION IMPINGED ON PETITIONERS' BUSINESS AFFORDED
A SUFFICIENT BASIS FOR THE JURY'S COMPUTATION OF THE DAMAGE, WHERE
RESPONDENTS' WRONGFUL ACTION HAD PREVENTED PETITIONERS FROM MAKING ANY
MORE PRECISE PROOF OF THE AMOUNT OF THE DAMAGES.  P. 266. 

2.  A JURY MAY NOT RENDER A VERDICT BASED ON SPECULATION OR
GUESSWORK, EVEN WHERE THE DEFENDANT BY HIS OWN WRONG HAS PRECLUDED A
MORE PRECISE COMPUTATION OF DAMAGES.  BUT THE JURY MAY MAKE A JUST AND
REASONABLE ESTIMATE OF THE DAMAGE BASED ON RELEVANT DATA AND RENDER ITS
VERDICT ACCORDINGLY.  IN SUCH CIRCUMSTANCES JURIES ARE ALLOWED TO ACT
ON PROBABLE AND INFERENTIAL AS WELL AS UPON DIRECT AND POSITIVE PROOF. 
STORY PARCHMENT CO. V. PATERSON CO., 282 U.S. 555; EASTMAN KODAK CO. V.
SOUTHERN PHOTO CO., 273 U.S. 359.  P. 264. 

3.  ELEMENTARY CONCEPTIONS OF JUSTICE AND PUBLIC POLICY REQUIRE THAT
THE WRONGDOER SHALL BEAR THE RISK OF THE UNCERTAINTY IN COMPUTING
DAMAGES WHICH HIS WRONG HAS CREATED.  P. 265. 

BIGELOW ET AL. V. RKO RADIO PICTURES, INC. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

FROM A JUDGMENT FOR THE PLAINTIFFS IN A SUIT FOR DAMAGES UNDER THE
ANTITRUST ACTS, THE DEFENDANTS APPEALED.  THE CIRCUIT COURT OF APPEALS
REVERSED.  150 F.2D 877.  THIS COURT GRANTED CERTIORARI.  326 U.S.
709.  REVERSED, P. 266. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS BROUGHT THIS SUIT IN THE DISTRICT COURT FOR NORTHERN
ILLINOIS UNDER SECS. 1, 2 AND 7 OF THE SHERMAN ACT (26 STAT. 209), AND
SECS. 4 AND 16 OF THE CLAYTON ACT (38 STAT. 731), 15 U.S.C. SECS. 1, 2,
15, AND 26, FOR AN INJUNCTION AND TO RECOVER TREBLE DAMAGES. 
PETITIONERS, WHO ARE OWNERS OF THE JACKSON PARK MOTION PICTURE THEATRE
IN CHICAGO, ALLEGED BY THEIR BILL OF COMPLAINT THAT RESPONDENTS, SOME
OF WHOM ARE DISTRIBUTORS OF MOVING PICTURE FILMS AND SOME OF WHOM OWN
OR CONTROL MOVING PICTURE THEATRES IN CHICAGO, ENTERED INTO A
CONSPIRACY WHICH CONTINUED FROM SOME DATE PRIOR TO NOVEMBER 1, 1936 TO
THE DATE THE SUIT WAS BROUGHT, JULY 28, 1942, PURSUANT TO WHICH FILM
WAS DISTRIBUTED AMONG MOVING PICTURE THEATRES IN THE CHICAGO DISTRICT
IN SUCH A MANNER THAT THEATRES OWNED BY SOME OF THE CONSPIRATORS WERE
ENABLED TO SECURE AND SHOW FEATURE PICTURES IN ADVANCE OF INDEPENDENT
EXHIBITORS, NOT AFFILIATED WITH RESPONDENTS, SUCH AS PETITIONERS. 

THE GIST OF THE COMPLAINT IS THAT, BY REASON OF THE CONSPIRACY,
PETITIONERS WERE PREVENTED FROM SECURING PICTURES FOR EXHIBITION IN
THEIR THEATRE UNTIL AFTER THE PREFERRED EXHIBITORS HAD BEEN ABLE TO
SHOW THEM IN THE EARLIER AND MORE DESIRABLE RUNS, AND THAT PETITIONERS
HAVE THUS BEEN DISCRIMINATED AGAINST IN THE DISTRIBUTION OF FEATURE
FILMS IN FAVOR OF COMPETING THEATRES OWNED OR CONTROLLED BY SOME OF THE
RESPONDENTS.  PETITIONERS CHARGED THAT IN CONSEQUENCE THEY HAD BEEN
SUBJECTED TO LOSS OF EARNINGS IN EXCESS OF $120,000 DURING THE FIVE
YEAR PERIOD FROM JULY 27, 1937 TO JULY 27, 1942.  THE MATTER OF THE
INJUNCTION WAS RESERVED AND THE CASE WENT TO TRIAL SOLELY ON THE
QUESTION OF DAMAGES.  THE JURY RETURNED A VERDICT FOR $120,000 IN
PETITIONERS' FAVOR.  THE TRIAL COURT GAVE JUDGMENT FOR TREBLE THAT
AMOUNT, AS PRESCRIBED BY SEC. 4 OF THE CLAYTON ACT.  THE CIRCUIT COURT
OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED ON THE SOLE GROUND THAT THE
EVIDENCE OF DAMAGE WAS NOT SUFFICIENT FOR SUBMISSION TO THE JURY, AND
DIRECTED THE ENTRY OF A JUDGMENT FOR RESPONDENTS NON OBSTANTE
VEREDICTO.  150 F.2D 877.  WE GRANTED CERTIORARI, 326 U.S. 709, BECAUSE
OF THE IMPORTANCE OF THE PROBLEM PRESENTED. 

RESPONDENTS DO NOT NOW ASSAIL THE JURY'S VERDICT, SO FAR AS IT FOUND
AN UNLAWFUL CONSPIRACY TO MAINTAIN A DISCRIMINATORY SYSTEM OF
DISTRIBUTION.  THE SOLE QUESTION FOR DECISION HERE IS WHETHER THE
EVIDENCE OF DAMAGE IS SUFFICIENT TO SUPPORT THE VERDICT.  AS THE JURY
RETURNED A GENERAL VERDICT, THE NATURE AND EXTENT OF THE UNLAWFUL
CONSPIRACY MUST BE ASCERTAINED IN THE LIGHT OF THE INSTRUCTIONS GIVEN
TO THE JURY, TAKING THAT VIEW OF THE EVIDENCE MOST FAVORABLE TO
PETITIONERS.  PETITIONERS HAVE BEEN SINCE NOVEMBER 1, 1936 THE OWNERS
IN PARTNERSHIP OF THE JACKSON PARK THEATRE, LOCATED ON THE SOUTH SIDE
OF CHICAGO.  RESPONDENTS RKO RADIO PICTURES, INC., LOEW'S, INC.,
TWENTIETH CENTURY-FOX FILM CORPORATION, PARAMOUNT PICTURES, INC., AND
VITAGRAPH, INC., ARE DISTRIBUTORS OF MOTION PICTURE FILMS.  RESPONDENT
RKO ALSO OWNS TWO LARGE FIRST-RUN THEATRES IN THE CHICAGO LOOP. 
RESPONDENT BALABAN & KATZ CORPORATION IS A MOTION PICTURE EXHIBITOR,
WHICH OPERATES A CHAIN OF SOME FIFTY THEATRES IN CHICAGO AND ITS
SUBURBS, INCLUDING THE MARYLAND THEATRE AND OTHERS ON THE SOUTH SIDE OF
CHICAGO WHICH COMPETE WITH THE PETITIONERS' JACKSON PARK THEATRE. 
BALABAN & KATZ IS A SUBSIDIARY OF PARAMOUNT.  RESPONDENT WARNER BROS.
CIRCUIT MANAGEMENT CORPORATION IS AN EXHIBITOR WHICH OPERATES MORE THAN
TWENTY THEATRES IN CHICAGO, INCLUDING SEVERAL ON CHICAGO'S SOUTH SIDE
WHICH ALSO COMPETE WITH PETITIONERS' THEATRE.  WARNER BROS. CIRCUIT
MANAGEMENT CORPORATION AND VITAGRAPH ARE SUBSIDIARIES OF WARNER BROS.
PICTURES, INC. RESPONDENT WARNER BROS. THEATRES, INC., IS ALSO
AFFILIATED WITH WARNER BROS. PICTURES, INC. AND HOLDS TITLE TO CERTAIN
OF THE WARNER THEATRES. 

THERE WAS EVIDENCE FROM WHICH THE JURY COULD HAVE FOUND THAT
RESPONDENTS MAINTAINED IN THE CHICAGO DISTRICT, BY A CONSPIRACY AMONG
THEMSELVES, A DISCRIMINATORY SYSTEM OF DISTRIBUTING MOTION PICTURES FOR
SHOWING IN SUCCESSIVE WEEKS OF RELEASE.  THE RELEASE SYSTEM, AS
DESCRIBED IN THE COMPLAINT, AND SHOWN BY THE PROOF, OPERATED
SUBSTANTIALLY AS FOLLOWS:  RESPONDENT DISTRIBUTORS RENT THEIR
COPYRIGHTED PRODUCT TO MOTION PICTURE THEATRES FOR EXHIBITION TO THE
PUBLIC.  RENTAL CONTRACTS BETWEEN DISTRIBUTORS AND EXHIBITORS UNDERTAKE
TO FURNISH FILMS TO THE EXHIBITORS FOR STIPULATED RENTALS, AND PROVIDE
FOR THE "PLAYING POSITION" IN WHICH THE MOTION PICTURE THEATRE IS TO
EXHIBIT THE FILMS RELATIVE TO THE "PLAYING POSITION" OF OTHER THEATRES
IN THE COMPETITIVE AREA.  IN CHICAGO, THESE CONTRACTS UNIFORMLY PROVIDE
THAT THE LARGER THEATRES IN THE CHICAGO LOOP, ALL OWNED, LEASED, OR
OPERATED BY ONE OR MORE OF THE RESPONDENTS, SHALL HAVE THE RIGHT TO THE
"FIRST RUN" OF THE MOTION PICTURES DISTRIBUTED BY THE RESPONDENTS, FOR
ONE WEEK OR SUCH LONGER PERIOD AS THEY MAY DESIRE TO EXHIBIT THEM. 
FOLLOWING THE "FIRST RUN," THE MOTION PICTURE MAY NOT BE SHOWN IN ANY
CHICAGO THEATRE OUTSIDE THE LOOP FOR THREE WEEKS, A PERIOD KNOWN AS
"CLEARANCE."  IN THE FOURTH WEEK FOLLOWING THE END OF THE LOOP RUN, THE
FILM IS RELEASED FOR EXHIBITION IN THEATRES OUTSIDE THE LOOP FOR
SUCCESSIVE RUNS IN VARIOUS THEATRES, FOR PERIODS KNOWN AS THE "A", "B"
AND "C" "PRE-RELEASE WEEKS," FOLLOWED BY WEEKS OF "GENERAL RELEASE." 

THE EARLIER A PLAYING POSITION, THE MORE DESIRABLE IT IS, SINCE IT IS
PREFERABLE TO EXHIBIT PICTURES BEFORE THEY HAVE BEEN SHOWN TO THE
PUBLIC IN OTHER THEATRES IN THE COMPETITIVE AREA.  THERE WAS EVIDENCE
THAT RESPONDENT DISTRIBUTORS AND EXHIBITORS CONSPIRED TO GIVE TO THE
DISTRIBUTOR-CONTROLLED OR AFFILIATED THEATRES PREFERENTIAL PLAYING
POSITIONS IN THE RELEASE SYSTEM OVER THE POSITIONS ALLOTTED TO
INDEPENDENT COMPETING THEATRES, INCLUDING THAT OF PETITIONERS, WITH THE
RESULT THAT PETITIONERS' THEATRE WAS UNABLE TO OBTAIN FEATURE FILMS
UNTIL THE FIRST WEEK OF "GENERAL RELEASE," OR TEN WEEKS AFTER THE END
OF THE LOOP RUN.  BY THAT TIME MOST OF RESPONDENT EXHIBITORS' THEATRES,
WITH SEVERAL OF WHICH PETITIONERS' THEATRE COMPETES, AND WHICH ENJOYED
THE PRIOR "A", "B" OR "C" PRE-RELEASE RUNS, HAD FINISHED THEIR
SHOWINGS.  REGARDLESS OF THE PRICE OFFERED FOR RENTAL OF FILM, THE
RESPONDENT EXHIBITORS, IN EXECUTION OF THE CONSPIRACY, REFUSED TO
RELEASE FILMS TO PETITIONERS' THEATRE EXCEPT FOR THE FIRST WEEK OF
"GENERAL RELEASE." 

ALTHOUGH PETITIONERS' GROUND FOR RECOVERY, AS STATED BY THEIR BILL OF
COMPLAINT, WAS THE DISCRIMINATORY OPERATION OF THE SYSTEM OF RELEASING
PICTURES FOR SHOWING IN ALLOTTED PLAYING POSITIONS, WHEREBY THE
PETITIONERS WERE PREVENTED FROM ACQUIRING FILMS FOR EXHIBITION UNTIL
THEY HAD BEEN SHOWN IN RESPONDENT DISTRIBUTORS' THEATRES COMPETING WITH
THE JACKSON PARK, EVIDENCE WAS INTRODUCED IN THE COURSE OF THE TRIAL
TENDING TO SHOW THAT RESPONDENTS CONSPIRED TO MAINTAIN THE RELEASE
SYSTEM AS PART OF A CONSPIRACY TO MAINTAIN MINIMUM ADMISSION PRICES TO
BE CHARGED BY EXHIBITORS GENERALLY.  THIS PROOF INDICATED THAT THE
OBJECT OF THIS CONSPIRACY WAS TO MAKE IT POSSIBLE TO MAINTAIN HIGH
ADMISSION PRICES IN THE LOOP THEATRES BY RESTRICTING THE PRICE
COMPETITION OF THE SUBSEQUENT-RUN THEATRES.  THE DISTRIBUTORS'
CONTRACTS WITH THE LOOP THEATRES PROVIDED FOR FILM RENTALS BASED ON A
PERCENTAGE OF THE ADMISSION FEES COLLECTED.  IT APPEARED THAT THE
RENTAL CONTRACTS ENTERED INTO BETWEEN RESPONDENT DISTRIBUTORS AND THE
CHICAGO EXHIBITORS, INCLUDING RESPONDENT EXHIBITORS AND PETITIONERS,
UNIFORMLY CONTAINED SCHEDULES OF MINIMUM ADMISSION PRICES FIXED ON THE
BASIS OF THE PLAYING POSITION ASSIGNED.  THERE WAS THUS EVIDENCE
TENDING TO SHOW THAT THE RELEASE SYSTEM AND THE PRICE-FIXING SYSTEM
WERE EACH AN INTEGRAL PART OF AN UNLAWFUL CONSPIRACY TO GIVE TO THE
LOOP THEATRES THE ADVANTAGES OF A FIRST-RUN PROTECTED FROM LOW-PRICE
COMPETITION. 

RESPONDENTS' EVIDENCE, ON THE OTHER HAND, TENDED TO SHOW THAT THE
RELEASE SYSTEM WAS A NATURAL GROWTH IN THE INDUSTRY, AND THAT THE FIXED
PRICE SYSTEM HAD RESULTED FROM THE INDIVIDUAL ACTION OF DISTRIBUTORS,
NOT ACTING IN CONCERT, TO MARKET THEIR COPYRIGHTED PRODUCT IN SUCH A
MANNER AS TO SECURE THE BEST POSSIBLE FINANCIAL RETURN FROM THE FILM
DISTRIBUTED.  SEE INTERSTATE CIRCUIT V. UNITED STATES, 306 U.S. 208;
CONSENT DECREE IN UNITED STATES V. BALABAN & KATZ CORP., C.C.H. FED.
TRADE REG. SERV., 7TH ED., COURT DECISIONS SUPPLEMENT, P. 5025. 

TWO CLASSES OF EVIDENCE WERE INTRODUCED BY PETITIONERS TO ESTABLISH
THEIR DAMAGE.  ONE WAS A COMPARISON OF EARNINGS DURING THE FIVE YEAR
PERIOD OF PETITIONERS' JACKSON PARK THEATRE WITH THE EARNINGS OF ITS
COMPETITOR, THE MARYLAND THEATRE, THE TWO BEING COMPARABLE IN SIZE, THE
JACKSON PARK BEING SUPERIOR IN LOCATION, EQUIPMENT, AND ATTRACTIVENESS
TO PATRONS.  UNDER THE DISCRIMINATORY RELEASE SYSTEM, THE MARYLAND HAD
BEEN ALLOWED TO EXHIBIT PICTURES IN THE C PRE-RELEASE RUN, ONE WEEK
AHEAD OF PETITIONERS' FIRST WEEK OF GENERAL RELEASE.  THE EVIDENCE
SHOWED THAT DURING THE FIVE YEAR PERIOD, THE MARYLAND'S NET RECEIPTS
AFTER DEDUCTING FILM RENTALS PAID TO DISTRIBUTORS EXCEEDED PETITIONERS'
LIKE RECEIPTS BY $115,982.34. 

THE SECOND WAS A COMPARISON OF PETITIONERS' RECEIPTS FROM THE
OPERATION OF THE JACKSON PARK THEATRE LESS COST OF FILM FOR THE FIVE
YEAR PERIOD FOLLOWING JULY 1937, WITH THE CORRESPONDING RECEIPTS FOR
THE FOUR YEARS IMMEDIATELY PRECEDING, AFTER MAKING AN ALLOWANCE FOR THE
ELIMINATION OF "BANK NIGHT" RECEIPTS.  THE COMPARISON SHOWS A FALLING
OFF OF PETITIONERS' RECEIPTS DURING THE FIVE YEAR PERIOD AGGREGATING
$125,659.00, WHICH WAS MORE THAN $5,000 IN EXCESS OF THE $120,000
DAMAGE DEMANDED BY PETITIONERS' COMPLAINT.  THE SIGNIFICANCE OF THE
COMPARISON LIES IN THE FACT THAT DURING MOST OF THE FOUR YEAR PERIOD,
AND DESPITE THE OPERATION OF THE RELEASE SYSTEM AS DESCRIBED,
PETITIONERS' THEATRE HAD BEEN ABLE TO PROCURE SOME FILMS WHICH HAD NOT
ALREADY BEEN SHOWN IN RESPONDENTS' THEATRES, WHEREAS PETITIONERS WERE
NOT ABLE TO PROCURE SUCH FILMS DURING THE FIVE YEAR PERIOD WHICH
FOLLOWED, ALTHOUGH THERE IS EVIDENCE THAT THEY MADE DILIGENT EFFORTS TO
DO SO.  THE CHANGE IS ATTRIBUTABLE TO THE INTRODUCTION OF THE PRACTICE
OF "DOUBLE FEATURES" (THE SHOWING OF TWO FILMS AT A SINGLE PERFORMANCE)
IN THEATRES IN THE CHICAGO DISTRICT.  THE EVIDENCE TENDED TO SHOW THAT
WHEN SINGLE FEATURES WERE BEING SHOWN, EXHIBITORS WHO HAD PLAYING
POSITIONS AHEAD OF PETITIONERS', IN SELECTING FILMS OUT OF THOSE WHICH
THEIR RENTAL CONTRACTS ALLOWED THEM TO SHOW, DID NOT EXHIBIT ALL OF THE
FILMS DISTRIBUTED, SO THAT, DESPITE THEIR INFERIOR PLAYING POSITION,
PETITIONERS WERE ABLE TO EXHIBIT PICTURES WHICH HAD NOT BEEN SHOWN
ELSEWHERE.  WITH THE ADVENT OF DOUBLE FEATURING, THEATRES WITH PLAYING
POSITIONS AHEAD OF PETITIONERS' USED NEARLY ALL OF THE FILMS
DISTRIBUTED, AND THE PICTURES WHICH PETITIONERS WERE ABLE TO EXHIBIT IN
THE FIRST WEEK OF GENERAL RELEASE, BY REASON OF THE DISTRIBUTION
SYSTEM, HAD HAD PRIOR SHOWING IN NEARLY EVERY CASE. 

THE TRIAL COURT LEFT IT TO THE JURY TO SAY WHETHER DOUBLE FEATURING
WAS INTRODUCED AS A PART OF A CONSPIRACY AMONG RESPONDENTS, OR AS A
SPONTANEOUS MANIFESTATION IN THE INDUSTRY.  ASSUMING THE LATTER, WE
AGREE WITH THE CIRCUIT COURT OF APPEALS, WHICH, IN SUSTAINING THE
JURY'S FINDING OF AN UNLAWFUL CONSPIRACY TO MAINTAIN THE DESCRIBED
SYSTEM OF DISTRIBUTION, HELD THAT WHEN THE DOUBLE FEATURING WAS
ESTABLISHED, ALL FILM WHICH HAD NOT ALREADY BEEN SHOWN "WAS TAKEN AWAY
BY DEFENDANTS' PRIOR CONTRACTS, MADE PURSUANT TO AND AS A PART OF THE
CONSPIRACY, AND PLACED UNDER THE RESTRICTION OF THE ILLEGAL SYSTEM, AND
THEREAFTER WAS NOT OBTAINABLE BY PLAINTIFFS, EXCEPT BY USE OF THE
ILLEGAL SYSTEM." 

IN SUBMITTING THE TWO CLASSES OF EVIDENCE OF DAMAGE WHICH WE HAVE
DETAILED, THE TRIAL COURT STATED TO THE JURY:  "PLAINTIFFS SEEK TO
RECOVER DAMAGES FOR THE ALLEGED ACTS OF DEFENDANTS ON ONE OF TWO
THEORIES  ..."  IT FURTHER CHARGED THAT "IF  ...  PLAINTIFFS HAVE BEEN
INJURED BY THE ALLEGED ACTS OF DEFENDANTS, THEY MUST CHOOSE ONE OR THE
OTHER OF SAID TWO THEORIES OF DETERMINING DAMAGE OR THE AMOUNT OF
DAMAGES."  THE CIRCUIT COURT OF APPEALS CONCLUDED THAT THE JURY
ACCEPTED THE COMPARISON OF PLAINTIFFS' EARNINGS BEFORE AND AFTER THE
ADOPTION OF DOUBLE BILLING AS ESTABLISHING THE MEASURE OF PETITIONERS'
DAMAGE.  BUT IT HELD THAT THIS PROOF DID NOT FURNISH A PROPER MEASURE
OF DAMAGE FOR THE REASON THAT, WHILE PETITIONERS' EARNINGS WERE KNOWN
AND PROVED FOR BOTH THE FOUR AND FIVE YEAR PERIODS IN QUESTION, IT
COULD NOT BE PROVED WHAT THEIR EARNINGS WOULD HAVE BEEN DURING THE FIVE
YEAR PERIOD IN THE ABSENCE OF THE ILLEGAL DISTRIBUTION OF FILMS.  IT
THOUGHT THAT THE MERE FACT THAT EARNINGS OF THE JACKSON PARK THEATRE
WERE GREATER BEFORE THE ADOPTION OF DOUBLE BILLING DID NOT SERVE TO
SHOW WHAT PETITIONERS' EARNINGS WOULD HAVE BEEN AFTERWARDS, IN THE
ABSENCE OF THE RELEASE SYSTEM.    SIMILARLY, THE COURT OF APPEALS
REJECTED THE COMPARISON BETWEEN PETITIONERS' RECEIPTS AND THOSE OF THE
MARYLAND THEATRE DURING THE FIVE YEARS IN QUESTION, SINCE, AS IT
THOUGHT, THE COMPARISON WOULD NOT TEND TO PROVE WHAT THE EARNINGS OF
EITHER THEATRE WOULD HAVE BEEN DURING THE CRITICAL PERIOD UNDER ANY
SYSTEM OTHER THAN THAT WHICH WAS THE PRODUCT OF THE UNLAWFUL
CONSPIRACY. 

UPON THE RECORD IN THIS CASE IT IS INDISPUTABLE THAT THE JURY COULD
HAVE FOUND THAT DURING THE PERIOD IN QUESTION A FIRST OR PRIOR RUN
THEATRE POSSESSED COMPETITIVE ADVANTAGES OVER LATER RUN THEATRES,
BECAUSE OF ITS GREATER CAPACITY TO ATTRACT PATRONAGE TO PICTURES WHICH
HAD NOT BEEN SHOWN ELSEWHERE, AND ITS ABILITY TO CHARGE HIGHER
ADMISSION PRICES THAN SUBSEQUENT RUN THEATRES, AND THAT, OTHER THINGS
BEING EQUAL, THE ESTABLISHMENT OF THE DISCRIMINATORY RELEASE SYSTEM WAS
DAMAGING TO THE PETITIONERS, WHO WERE RELEGATED BY IT TO A PLAYING
POSITION INFERIOR TO THAT OF THEIR COMPETITORS. 

EACH OF THE TWO CLASSES OF EVIDENCE INTRODUCED BY PETITIONERS TENDED
TO SHOW DAMAGE.  THEY WERE NOT MUTUALLY EXCLUSIVE, AS THE COURTS BELOW
SEEM TO HAVE THOUGHT, SINCE EACH, INDEPENDENTLY OF THE OTHER, TENDED TO
SHOW THAT PETITIONERS' INABILITY TO OBTAIN FILMS FOR EXHIBITION BEFORE
THEY HAD BEEN SHOWN ELSEWHERE ADVERSELY AFFECTED THEIR RECEIPTS, IN THE
ONE CASE BY SHOWING THAT THOSE RECEIPTS DECREASED WHEN PETITIONERS
COULD NO LONGER PURCHASE SUCH FILMS FOLLOWING THE INTRODUCTION OF
DOUBLE FEATURES, AND IN THE OTHER, THAT PETITIONERS' RECEIPTS FROM ITS
THEATRE WERE LESS BY SUBSTANTIALLY THE SAME AMOUNT THAN RECEIPTS OF ITS
COMPETITOR, THE PRIOR-RUN MARYLAND THEATRE, OPERATED UNDER CONDITIONS
IN OTHER RESPECTS LESS FAVORABLE THAN THOSE AFFECTING PETITIONERS. 

RESPONDENTS' ARGUMENT IS, THAT NOTWITHSTANDING THE FORCE OF THIS
EVIDENCE, IT IS IMPOSSIBLE TO ESTABLISH ANY MEASURE OF DAMAGE, BECAUSE
THE UNLAWFUL SYSTEM WHICH RESPONDENTS HAVE CREATED HAS PRECLUDED
PETITIONERS FROM SHOWING THAT OTHER CONDITIONS AFFECTING PROFITS WOULD
HAVE CONTINUED WITHOUT CHANGE UNFAVORABLE TO THEM DURING THE CRITICAL
PERIOD IF THAT SYSTEM HAD NOT BEEN ESTABLISHED, AND PETITIONERS HAD
CONDUCTED THEIR BUSINESS IN A FREE COMPETITIVE MARKET.  RESPONDENTS
ALSO CONTEND THAT THE JURY'S VERDICT ESTABLISHES THAT THE RELEASE
SYSTEM WAS PART OF A PRICE-FIXING CONSPIRACY, AND ON THE ASSUMPTION
THAT PRICE-FIXING AND THE DISCRIMINATORY SYSTEM OF RELEASE WERE
INSEPARABLE PARTS OF A SINGLE SCHEME, ARGUE THAT AS THE CONSPIRACY AS A
WHOLE PROBABLY ENABLED PETITIONERS ARTIFICIALLY TO RAISE THEIR PRICES
TO AN UNDETERMINED EXTENT, THE OVERALL EFFECT OF THE CONSPIRACY MAY
WELL HAVE BEEN TO BENEFIT PETITIONERS, EVEN THOUGH THE PLAN OF
DISTRIBUTION, ONE OF ITS FEATURES, MAY HAVE INJURED THEM.  BUT WE THINK
THESE ARGUMENTS ARE BASED ON A MISAPPREHENSION OF THE PRECISE
CONDITIONS IN WHICH THE JURY WAS PERMITTED TO AND DID APPLY THE
TENDERED MEASURE OF DAMAGES, AND THAT IT ALSO IGNORES CONTROLLING
PRINCIPLES OF THE LAW OF DAMAGES. 

WE HAVE ALREADY ADVERTED TO THE FACTS THAT PETITIONERS' CAUSE OF
ACTION, AS STATED IN THEIR COMPLAINT, WAS FOUNDED ON THE UNLAWFUL
SYSTEM OF DISTRIBUTING FILMS; THAT THE CONTENTIONS PRO AND CON AS TO
THE EXISTENCE OF A CONSPIRACY TO FIX PRICES OF THEATRE ADMISSIONS FIRST
EMERGED IN THE COURSE OF THE TRIAL; AND THAT THE JURY WAS ALLOWED TO
FIX THE MEASURE OF THE DAMAGE WITH REFERENCE TO THE REDUCTION OF
PETITIONERS' RECEIPTS AFTER JULY 1937 WHEN PETITIONERS WERE NO LONGER
ABLE TO SHOW SOME FILMS WHICH HAD NOT BEEN PREVIOUSLY EXHIBITED.  UNDER
THE COMPLAINT AND THE INSTRUCTIONS, THE JURY COULD, AND WE CAN ASSUME
THAT IT DID, FIND THAT THE FIXING OF MINIMUM PRICES WAS EFFECTUATED BY
THE INDIVIDUAL ACTION OF DISTRIBUTORS, AS RESPONDENTS CONTENDED AT THE
TRIAL, AND NOT AS A PART OR RESULT OF THE CONSPIRACY TO CONTROL
DISTRIBUTION.  THE JURY COULD HAVE FOUND THAT THE ONLY UNLAWFUL ACTION
TAKEN BY RESPONDENTS WAS IN CONSPIRING TO PREVENT PETITIONERS' THEATRE
FROM BIDDING IN OPEN COMPETITION AGAINST OTHER EXHIBITORS FOR A
PREFERRED PLACE IN AN OTHERWISE LAWFUL SYSTEM OF RELEASE.  THIS IS
APPARENT FROM THE FOLLOWING PORTION OF THE CHARGE: "ONLY IN THE EVENT
THAT YOU FIND THAT THERE EXISTS NO CONSPIRACY OR COMBINATION TO FIX
MINIMUM ADMISSION PRICES, OR NO UNREASONABLE RESTRAINT OF TRADE, BY THE
DEFENDANTS BY VIRTUE OF THE CHICAGO SYSTEM OF RELEASE, WILL YOU HAVE
OCCASION TO CONSIDER WHETHER OR NOT THE PLAINTIFFS DEMANDED AND SOUGHT
TO OBTAIN A PLAYING POSITION IN 'C' WEEK." 

THE JURY'S VERDICT WAS, AS THE COURT BELOW HELD, BASED ON THE DAMAGE
SUFFERED BY PETITIONERS IN CONSEQUENCE OF THE DEPRIVATION, BY THE
DISCRIMINATORY OPERATION OF THE RELEASE SYSTEM, OF THEIR DEMONSTRATED
FREEDOM TO RENT AND EXHIBIT SOME FILMS WHICH HAD NOT HAD PRIOR
SHOWING.  HENCE WE TAKE IT THAT THE VERDICT DID NOT ESTABLISH THAT THE
FIXED MINIMUM ADMISSION PRICES WERE THE RESULT OF THE UNLAWFUL
CONSPIRACY, OR THAT THE PETITIONERS' PURCHASES OF SUCH FILMS, AND THE
OPERATION OF THEIR THEATRE, BEFORE THE DOUBLE FEATURE PRACTICE WAS
INAUGURATED, WERE, FOR PURPOSES MATERIAL HERE, AFFECTED BY THE
CONSPIRACY. 

THE RECORD THUS ESTABLISHES THAT WHEN PETITIONERS ACQUIRED THEIR
THEATRE, IT WAS POSSIBLE FOR THEM UNDER THE CONDITIONS THEN PREVAILING
TO SECURE FILMS WHICH HAD NOT HAD PRIOR SHOWING AND TO EXHIBIT THEM IN
COMPETITION WITH THEATRES HAVING PREFERRED PLAYING POSITIONS.  WHATEVER
RESTRAINTS RESPONDENTS' DISTRIBUTION SYSTEM MAY THEN HAVE IMPOSED, AND
WHETHER THE LATER ADOPTED PRACTICE OF SHOWING DOUBLE FEATURES WAS OR
WAS NOT ITSELF A PRODUCT OF AN UNLAWFUL CONSPIRACY, PETITIONERS WERE
ENTITLED, AS OF RIGHT, TO CONTINUE TO PURCHASE AND SHOW FILMS WHICH HAD
NOT HAD PRIOR SHOWING FREE OF THE RESTRAINTS OF THE UNLAWFUL
DISTRIBUTION SYSTEM.  THE FAIR VALUE OF PETITIONERS' RIGHT THUS TO
CONTINUE THEIR BUSINESS DEPENDED ON ITS CAPACITY TO MAKE PROFITS.  AND
A FAIR MEASURE OF THE DAMAGE TO THAT RIGHT BY RESPONDENTS' UNLAWFUL
DISTRIBUTING SYSTEM WAS THE LOSS OF PETITIONERS' ADMISSION RECEIPTS
RESULTING FROM THE APPLICATION OF THAT SYSTEM TO PETITIONERS. 

RESPONDENTS ONLY ANSWER IS THAT, WITHOUT THE CONSPIRACY, THE
CONDITIONS OF PURCHASE OF FILMS MIGHT NOT HAVE BEEN THE SAME AFTER AS
THEY WERE BEFORE JULY, 1937; THAT IN ANY CASE IT IS NOT POSSIBLE TO SAY
WHAT THOSE CONDITIONS WOULD HAVE BEEN IF THE RESTRAINTS HAD NOT BEEN
IMPOSED, AND THAT THOSE CONDITIONS CANNOT BE ASCERTAINED, BECAUSE
RESPONDENTS HAVE NOT REMOVED THE RESTRAINT.  HENCE, IT IS SAID,
PETITIONERS' EVIDENCE DOES NOT ESTABLISH THE FACT OF DAMAGE, AND THAT
FURTHER, THE STANDARD OF COMPARISON WHICH THE EVIDENCE SETS UP IS TOO
SPECULATIVE AND UNCERTAIN TO AFFORD AN ACCURATE MEASURE OF THE AMOUNT
OF THE DAMAGE. 

THE CASE IN THESE RESPECTS IS COMPARABLE TO EASTMAN KODAK CO. V.
SOUTHERN PHOTO CO., 273 U.S. 359, AND STORY PARCHMENT CO. V. PATERSON
CO., 282 U.S. 555, IN WHICH PRECISELY THE SAME ARGUMENTS NOW ADDRESSED
TO US WERE REJECTED.  THERE, AS HERE, THE SUITS WERE FOR DAMAGES CAUSED
BY RESTRAINTS IMPOSED BY DEFENDANTS, IN VIOLATION OF THE SHERMAN
ANTITRUST ACT, ON THE OPERATION OF THE BUSINESS OF THE COMPLAINANT IN
EACH CASE.  IN THE ONE CASE, THE DEFENDANT, IN AN EFFORT TO EXTEND ITS
MONOPOLY, REFUSED TO SELL TO THE PLAINTIFF GOODS WHICH HAD REGULARLY
BEEN A PART OF HIS STOCK IN TRADE.  IN THE OTHER, THE DEFENDANTS,
COMPETING SELLERS, ENGAGED IN DESTRUCTIVE PRICE COMPETITION WITH THE
PLAINTIFF IN EXECUTION OF AN UNLAWFUL CONSPIRACY.  IN THE FIRST CASE,
THE PLAINTIFF SOUGHT TO ESTABLISH HIS DAMAGE BY COMPARING HIS PROFITS
BEFORE AND AFTER THE UNLAWFUL INTERFERENCE WITH HIS BUSINESS.  IN THE
OTHER, THE PLAINTIFF SOUGHT TO SHOW HIS DAMAGE BY PROOF OF THE
DIFFERENCE BETWEEN THE AMOUNTS ACTUALLY REALIZED FROM HIS BUSINESS
AFTER THE CONSPIRACY BECAME EFFECTIVE, AND WHAT, BUT FOR THE
CONSPIRACY, WOULD HAVE BEEN REALIZED BY IT FROM SALES AT REASONABLE
PRICES, THE EVIDENCE OF WHICH WAS THE AMOUNT BY WHICH HIS CURRENT
PRICES WERE HIGHER BEFORE THE CONSPIRACY THAN AFTER, AND BY THE EXTENT
TO WHICH THE VALUE OF PLAINTIFF'S BUSINESS PROPERTY HAD DECLINED AFTER
THE CONSPIRACY HAD BEGUN TO OPERATE. 

IN EACH CASE WE HELD THAT THE EVIDENCE SUSTAINED VERDICTS FOR THE
PLAINTIFFS, AND THAT IN THE ABSENCE OF MORE PRECISE PROOF, THE JURY
COULD CONCLUDE AS A MATTER OF JUST AND REASONABLE INFERENCE FROM THE
PROOF OF DEFENDANTS' WRONGFUL ACTS AND THEIR TENDENCY TO INJURE
PLAINTIFFS' BUSINESS, AND FROM THE EVIDENCE OF THE DECLINE IN PRICES,
PROFITS AND VALUES, NOT SHOWN TO BE ATTRIBUTABLE TO OTHER CAUSES, THAT
DEFENDANTS' WRONGFUL ACTS HAD CAUSED DAMAGE TO THE PLAINTIFFS.  IN THIS
WE BUT FOLLOWED A WELL-SETTLED PRINCIPLE.  SEE HETZEL V. BALTIMORE &
OHIO R. CO., 169 U.S. 26, 38-9.  THE TORTIOUS ACTS HAD IN EACH CASE
PRECLUDED ASCERTAINMENT OF THE AMOUNT OF DAMAGES MORE PRECISELY, BY
COMPARISON OF PROFITS, PRICES AND VALUES AS AFFECTED BY THE CONSPIRACY,
WITH WHAT THEY WOULD HAVE BEEN IN ITS ABSENCE UNDER FREELY COMPETITIVE
CONDITIONS.  NEVERTHELESS, WE HELD THAT THE JURY COULD RETURN A VERDICT
FOR THE PLAINTIFFS, EVEN THOUGH DAMAGES COULD NOT BE MEASURED WITH THE
EXACTNESS WHICH WOULD OTHERWISE HAVE BEEN POSSIBLE. 

IN SUCH A CASE, EVEN WHERE THE DEFENDANT BY HIS OWN WRONG HAS
PREVENTED A MORE PRECISE COMPUTATION, THE JURY MAY NOT RENDER A VERDICT
BASED ON SPECULATION OR GUESSWORK.  BUT THE JURY MAY MAKE A JUST AND
REASONABLE ESTIMATE OF THE DAMAGE BASED ON RELEVANT DATA, AND RENDER
ITS VERDICT ACCORDINGLY.  IN SUCH CIRCUMSTANCES "JURIES ARE ALLOWED TO
ACT UPON PROBABLE AND INFERENTIAL, AS WELL AS DIRECT AND POSITIVE
PROOF."  STORY PARCHMENT CO. V. PATERSON CO., SUPRA, 561-4; EASTMAN
KODAK CO. V. SOUTHERN PHOTO CO., SUPRA, 377-9.  ANY OTHER RULE WOULD
ENABLE THE WRONGDOER TO PROFIT BY HIS WRONGDOING AT THE EXPENSE OF HIS
VICTIM.  IT WOULD BE AN INDUCEMENT TO MAKE WRONGDOING SO EFFECTIVE AND
COMPLETE IN EVERY CASE AS TO PRECLUDE ANY RECOVERY, BY RENDERING THE
MEASURE OF DAMAGES UNCERTAIN.  FAILURE TO APPLY IT WOULD MEAN THAT THE
MORE GRIEVOUS THE WRONG DONE, THE LESS LIKELIHOOD THERE WOULD BE OF A
RECOVERY. 

THE MOST ELEMENTARY CONCEPTIONS OF JUSTICE AND PUBLIC POLICY REQUIRE
THAT THE WRONGDOER SHALL BEAR THE RISK OF THE UNCERTAINTY WHICH HIS OWN
WRONG HAS CREATED.  SEE PACKAGE CLOSURE CORP. V. SEALRIGHT CO., 141
F.2D 972, 979.  THAT PRINCIPLE IS AN ANCIENT ONE, ARMORY V. DELAMIRIE,
1 STRANGE 505, AND IS NOT RESTRICTED TO PROOF OF DAMAGE IN ANTITRUST
SUITS, ALTHOUGH THEIR CHARACTER IS SUCH AS FREQUENTLY TO CALL FOR ITS
APPLICATION.  IN CASES OF COLLISION WHERE THE OFFENDING VESSEL HAS
VIOLATED REGULATIONS PRESCRIBED BY STATUTE, SEE THE PENNSYLVANIA, 19
WALL.  125, 136, AND IN CASES OF CONFUSION OF GOODS, GREAT SOUTHERN GAS
& OIL CO. V. LOGAN NATURAL GAS & FUEL CO., 155 F. 114, 115; CF. F.W.
WOOLWORTH CO. V. LABOR BOARD, 121 F.2D 658, 663, THE WRONGDOER MAY NOT
OBJECT TO THE PLAINTIFF'S REASONABLE ESTIMATE OF THE CAUSE OF INJURY
AND OF ITS AMOUNT, SUPPORTED BY THE EVIDENCE, BECAUSE NOT BASED ON MORE
ACCURATE DATA WHICH THE WRONGDOER'S MISCONDUCT HAS RENDERED
UNAVAILABLE.  AND IN CASES WHERE A WRONGDOER HAS INCORPORATED THE
SUBJECT OF A PLAINTIFF'S PATENT OR TRADE-MARK IN A SINGLE PRODUCT TO
WHICH THE DEFENDANT HAS CONTRIBUTED OTHER ELEMENTS OF VALUE OR UTILITY,
AND HAS DERIVED PROFITS FROM THE SALE OF THE PRODUCT, THIS COURT HAS
SUSTAINED RECOVERY OF THE FULL AMOUNT OF DEFENDANT'S PROFITS WHERE HIS
OWN WRONGFUL ACTION HAS MADE IT IMPOSSIBLE FOR THE PLAINTIFF TO SHOW IN
WHAT PROPORTIONS HE AND THE DEFENDANT HAVE CONTRIBUTED TO THE PROFITS. 
WESTINGHOUSE CO. V. WAGNER MFG. CO., 225 U.S. 604; HAMILTON SHOE CO. V.
WOLF BROTHERS, 240 U.S. 251; SEE ALSO SHELDON V. METRO-GOLDWYN CORP.,
309 U.S. 390, 406. 

"THE CONSTANT TENDENCY OF THE COURTS IS TO FIND SOME WAY IN WHICH
DAMAGES CAN BE AWARDED WHERE A WRONG HAS BEEN DONE.  DIFFICULTY OF
ASCERTAINMENT IS NO LONGER CONFUSED WITH RIGHT OF RECOVERY" FOR A
PROVEN INVASION OF THE PLAINTIFF'S RIGHTS.  STORY PARCHMENT CO. V.
PATERSON CO., SUPRA, 565; AND SEE ALSO PALMER V. CONNECTICUT R. CO.,
311 U.S. 544, 559, AND CASES CITED. 

THE EVIDENCE HERE WAS AMPLE TO SUPPORT A JUST AND REASONABLE
INFERENCE THAT PETITIONERS WERE DAMAGED BY RESPONDENTS' ACTION, WHOSE
UNLAWFULNESS THE JURY HAS FOUND, AND RESPONDENTS DO NOT CHALLENGE.  THE
COMPARISON OF PETITIONERS' RECEIPTS BEFORE AND AFTER RESPONDENTS'
UNLAWFUL ACTION IMPINGED ON PETITIONERS' BUSINESS AFFORDED A SUFFICIENT
BASIS FOR THE JURY'S COMPUTATION OF THE DAMAGE, WHERE THE RESPONDENTS'
WRONGFUL ACTION HAD PREVENTED PETITIONERS FROM MAKING ANY MORE PRECISE
PROOF OF THE AMOUNT OF THE DAMAGE. 

WE DO NOT MEAN TO INDICATE BY WHAT WE HAVE SAID THAT THE JURY COULD
NOT, ON THIS RECORD, HAVE FOUND A CONSPIRACY FOR FIXING MINIMUM PRICES
OR THAT THE CHICAGO SYSTEM OF RELEASE WAS NOT AN UNREASONABLE RESTRAINT
OF TRADE IN OTHER RESPECTS.  WE CONCLUDE THAT THERE WAS EVIDENCE TO
SUPPORT A VERDICT FOR DAMAGES ON AT LEAST ONE THEORY ON WHICH THE CASE
WAS SUBMITTED TO THE JURY.  WE DO NOT IMPLY THAT THE VERDICT COULD NOT
BE SUPPORTED ON SOME OTHER THEORY. 

THE JUDGMENT OF THE DISTRICT COURT BELOW WILL BE AFFIRMED AND THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE DOMINANT PURPOSE OF THE ANTI-TRUST ACTS IS PROTECTION OF THE
PUBLIC INTEREST BY PROHIBITING UNJUSTIFIABLE RESTRICTIONS UPON
COMPETITIVE ENTERPRISE.  FROM THE VERY NATURE OF THE PUBLIC INTEREST
THUS TO BE SAFEGUARDED AND BY REASON OF THE COMPLEX AND COSTLY
CHARACTER OF THE LITIGATION TO WHICH IT NORMALLY GIVES RISE, CONGRESS
MADE AVAILABLE TO THE ATTORNEY GENERAL OF THE UNITED STATES APPROPRIATE
PREVENTIVE AND PUNITIVE REMEDIES:  THE INJUNCTION, TO PUT A PROMPT STOP
TO ILLEGAL RESTRAINTS, AND THE STERN SANCTIONS OF THE CRIMINAL LAW, TO
DETER SUCH RESTRAINTS.  A RIGHT OF ACTION IS ALSO GIVEN TO ANY
INDIVIDUAL WHO HAS BEEN "INJURED IN HIS BUSINESS" BY SUCH ILLEGALITY. 
BUT WHILE ACTION BY THE GOVERNMENT TO ENFORCE THE ANTI-TRUST ACTS
MERELY REQUIRES PROOF OF ILLEGALITY, AN INDIVIDUAL'S RIGHT OF RECOVERY
IS DEPENDENT ON PROOF OF LEGAL INJURY TO HIM, AND LEGAL INJURY IS NOT
AUTOMATICALLY ESTABLISHED BY PROOF OF A RESTRAINT OF TRADE IN VIOLATION
OF THE SHERMAN LAW.  SEE KEOGH V. CHICAGO & NORTHWESTERN R. CO., 260
U.S. 156, 162-63.    THEREFORE OUR REAL QUESTION IS WHETHER THE
RESPONDENTS' VIOLATION OF THE SHERMAN LAW ILLEGALLY INJURED THE
PETITIONERS.  THIS NECESSARILY INVOLVES SUBSTANTIAL PROOF THAT THE
PETITIONERS' BUSINESS WOULD HAVE BEEN MORE PROFITABLE IF THE
DISTRIBUTION OF MOVIE FILMS IN CHICAGO HAD BEEN A FREE-FOR-ALL AND IF
NO FACTOR OF THE SCHEME THAT CONSTITUTED AN ILLEGAL CONSPIRACY HAD BEEN
IN OPERATION, THAN IT WAS UNDER THE CONDITIONS THAT ACTUALLY
PREVAILED.  SPECIFICALLY, ONE FEATURE OF THE CONSPIRACY WAS STIPULATED
RENTALS BY DISTRIBUTORS IN FURNISHING FILMS TO EXHIBITORS.  THE RECORD
APPEARS DEVOID OF PROOF THAT, IF COMPETITIVE CONDITIONS HAD PREVAILED,
DISTRIBUTORS WOULD NOT HAVE MADE RENTAL CONTRACTS WITH THEIR RESPECTIVE
EXHIBITING AFFILIATES TO THE SERIOUS DISADVANTAGE OF INDEPENDENTS LIKE
THE PETITIONERS.  THEY MIGHT INDIVIDUALLY HAVE DONE SO AND NOT HAVE
OFFENDED THE SHERMAN LAW. 

I AGREE THAT EASTMAN KODAK CO. V. SOUTHERN PHOTO CO., 273 U.S. 359,
AND STORY PARCHMENT CO. V. PATERSON CO., 282 U.S. 555, SHOULD GUIDE THE
DISPOSITION OF THIS CASE.  BUT I DO NOT FIND THAT THE DECISIVE
DISTINCTION MADE IN THOSE CASES HAS BEEN OBSERVED IN DECIDING THIS
CASE.  THE DISTINCTION IS BETWEEN PROVING THAT SOME DAMAGES WERE "THE
CERTAIN RESULT OF THE WRONG" AND UNCERTAINTY AS TO THE DOLLARS AND
CENTS VALUE OF SUCH INJURING WRONG.  SUCH DIFFICULTY IN ASCERTAINING
THE EXACT AMOUNT OF DAMAGE IS A RISK PROPERLY CAST UPON THE WRONG-DOING
DEFENDANT.  BUT PROOF OF THE LEGAL INJURY, WHICH IS THE BASIS OF HIS
SUIT, IS PLAINTIFF'S BURDEN.  HE DOES NOT ESTABLISH IT MERELY BY
PROVING THAT THERE WAS A WRONG TO THE PUBLIC NOR BY SHOWING THAT IF HE
HAD BEEN INJURED ASCERTAINMENT OF THE EXACT AMOUNT OF DAMAGES WOULD
HAVE HAD AN INEVITABLE SPECULATIVE ELEMENT TO BE LEFT FOR A JURY'S
CONSCIENTIOUS GUESS.  THIS BASIC DISTINCTION WAS THUS FORMULATED IN
STORY PARCHMENT CO. V. PATERSON CO.: 

"THE RULE WHICH PRECLUDES THE RECOVERY OF UNCERTAIN DAMAGES APPLIES
TO SUCH AS ARE NOT THE CERTAIN RESULT OF THE WRONG, NOT TO THOSE
DAMAGES WHICH ARE DEFINITELY ATTRIBUTABLE TO THE WRONG AND ONLY
UNCERTAIN IN RESPECT OF THEIR AMOUNT."  282 U.S. AT 562. 

IN THE EASTMAN AND STORY CASES THE PLAINTIFFS ESTABLISHED WHAT THEIR
PROFIT WAS WHEN COMPETITIVE CONDITIONS PREVAILED AND THAT THE
SUBSEQUENT LOSS PROPERLY BECAME EXCLUSIVELY ATTRIBUTABLE TO RESTRAINT
OF SUCH CONDITIONS.  SUCH A COMPARISON IS NOT REVEALED BY THIS RECORD. 
IT WAS WHOLLY SPECULATIVE, AS THE CIRCUIT COURT OF APPEALS PROPERLY
HELD IN APPLYING THE RULE IN THE STORY PARCHMENT CO. CASE, WHETHER THE
INTAKE OF PETITIONERS WOULD HAVE BEEN MORE PROFITABLE IF THE
DISTRIBUTION OF FILMS IN CHICAGO HAD BEEN LEFT WHOLLY TO THE HAGGLING
OF A FREE MARKET, 150 F.2D 877.  AS TO THE SUBTLETIES INVOLVED IN SUCH
SPECULATION, COMPARE INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S.
216, 223-24. 

WHERE THERE IS CONCEDED LEGAL INJURY, AS FOR INSTANCE WHERE ONE MAN'S
CHATTEL IS TAKEN BY ANOTHER, AS IN THE OLD CASE OF ARMORY V. DELAMIRIE,
1 STRANGE 505, WE START WITH THE LEGAL INJURY AND THE PROBLEM IS MERELY
ONE OF ASCERTAINING DAMAGES "UNCERTAIN IN RESPECT OF THEIR AMOUNT." 
SUCH CASES ARE NOT HELPFUL WHERE THE CRUCIAL ISSUE, AS HERE, IS WHETHER
THERE IS SOLID PROOF OF THE EXISTENCE OF A LEGAL INJURY. 
..END :



AMERICAN SURETY CO. V. SAMPSELL, 327 U.S. 269 


NO. 142.  ARGUED JANUARY 28, 1946.  - DECIDED FEBRUARY 25, 1946.  - 148
F.2D 986, AFFIRMED. 


1.  A BANKRUPTCY COURT HAS EQUITABLE POWER TO SUBORDINATE THE CLAIM OF
A SURETY FOR SUBROGATION AND INDEMNITY FOR PAYMENTS UNDER A STATUTORY
CONSTRUCTION BOND TO THE CLAIMS OF LABORERS AND MATERIALMEN FOR WHOSE
BENEFIT THE BOND WAS EXECUTED BUT WHO FAILED TO FILE LIEN CLAIMS OR
NOTIFY THE SURETY OF THEIR UNPAID CLAIMS WITHIN THE TIME REQUIRED BY
THE BOND AND THE APPLICABLE STATE STATUTE.  P. 271. 

2.  FEDERAL BANKRUPTCY LAW, NOT STATE LAW, GOVERNS THE DISTRIBUTION
OF A BANKRUPT'S ASSETS TO HIS CREDITORS.  PRUDENCE REALIZATION CORP. V.
GEIST, 316 U.S. 89.  P. 272. 

3.  CONTROLLING EQUITABLE PRINCIPLES FORBID A SURETY FROM SHARING A
BANKRUPT'S ASSETS ON EQUAL TERMS WITH CREDITORS WHO ARE MEMBERS OF THE
CLASS ITS BOND WAS GIVEN TO PROTECT.  AMERICAN SURETY CO. V.
WESTINGHOUSE ELECTRIC CO., 296 U.S. 133.  P. 272. 

4.  FAILURE TO GIVE THE NOTICE REQUIRED BY STATE LAW DOES NOT DEPRIVE
MATERIALMEN AND LABORERS OF THE PROTECTION OF THIS RULE.  P. 273. 

AMERICAN SURETY CO. OF NEW YORK V. SAMPSELL, TRUSTEE IN BANKRUPTCY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

A BANKRUPTCY COURT SUBORDINATED THE CLAIM OF A SURETY FOR SUBROGATION
AND INDEMNITY FOR AMOUNTS PAID UNDER A STATUTORY CONSTRUCTION BOND TO
THE CLAIMS OF LABORERS AND MATERIALMEN WHO HAD NOT FILED LIENS OR
NOTIFIED THE SURETY OF THEIR UNPAID CLAIMS WITHIN THE TIME SPECIFIED BY
THE BOND AND THE APPLICABLE STATE STATUTE.  53 F.SUPP.  131.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  148 F.2D 986.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 699.  AFFIRMED, P. 274. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS CONCERNING THE EQUITABLE POWER OF A
FEDERAL BANKRUPTCY COURT TO SUBORDINATE CLAIMS OF SOME CREDITORS TO
THOSE OF OTHERS.  THE CREDITORS ARE A SURETY ENTITLED TO SUBROGATION
FOR PAYMENTS UPON ITS SURETY BOND AND LABORERS AND MATERIALMEN FOR
WHOSE BENEFIT THE BOND WAS EXECUTED. 

STRATTON, NOW IN BANKRUPTCY, MADE CERTAIN ALTERATIONS IN FACTORY
BUILDINGS LOCATED IN CALIFORNIA.  IN CONNECTION WITH THIS PROJECT
STRATTON AS PRINCIPAL, AND THE PETITIONER, AMERICAN SURETY COMPANY OF
NEW YORK, AS SURETY, EXECUTED A JOINT STATUTORY BOND FOR $39,500, BY
WHICH THEY BOUND THEMSELVES TO PAY ALL PERSONS FURNISHING MATERIALS
FOR, OR PERFORMING WORK ON, THE JOB.  THE BOND STRICTLY CONFORMED IN
ALL RESPECTS WITH REQUIREMENTS OF THE CALIFORNIA LAW GOVERNING
LABORERS' AND MATERIALMEN'S LIENS AND WAS FILED AND RECORDED AS
PROVIDED BY SEC. 1183 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.  PARTS
OF THE BOND'S LANGUAGE INCORPORATED PORTIONS OF SECS. 1183 AND 1187 OF
THE CALIFORNIA CODE OF CIVIL PROCEDURE WHICH PROVIDE THAT "NO ACTION"
ON A RECORDED BOND MAY BE MAINTAINED UNLESS WITHIN A SPECIFIED
STATUTORY PERIOD A MECHANIC'S LIEN CLAIM SHALL HAVE BEEN FILED OR THE
SURETY SHALL HAVE BEEN GIVEN NOTICE OF THE UNPAID CLAIM. 

BECAUSE OF FINANCIAL DIFFICULTIES STRATTON WAS UNABLE TO PAY ALL THE
LABORERS AND MATERIALMEN.  SOME OF THEM, WITH CLAIMS AGGREGATING
$6,724.78, FILED LIEN CLAIMS AND GAVE NOTICE WITHIN THE STATUTORY
PERIOD AND THE SURETY PAID THEIR CLAIMS IN FULL.  OTHERS FAILED TO FILE
CLAIMS OR GIVE THE REQUIRED NOTICE AND THE SURETY DID NOT PAY THEM. 

STRATTON WAS LATER ADJUDGED A BANKRUPT.  THE PETITIONER SURETY
COMPANY FILED A CLAIM FOR THE MONEY IT HAD BEEN COMPELLED TO EXPEND IN
PAYMENT OF THE MATERIALMEN AND LABORERS WHO HAD GIVEN THE STATUTORY
NOTICE.  ITS CLAIM RESTED ON AN AGREEMENT BY STRATTON TO INDEMNIFY IT
AND ON THE EQUITABLE DOCTRINE OF SUBROGATION.  THREE OF THE MATERIALMEN
AND LABORERS WHO HAD FAILED TO GIVE NOTICE ALSO FILED CLAIMS TOTALLING
$1,336.11 OWED THEM FOR MATERIALS FURNISHED AND WORK PERFORMED.  THE
REFEREE ALLOWED ALL OF THESE CLAIMS INCLUDING THAT OF THE SURETY
COMPANY AS GENERAL CLAIMS IN BANKRUPTCY.  UPON MOTION OF THE RESPONDENT
TRUSTEE, THE REFEREE SUBORDINATED THE PETITIONER'S CLAIM TO THAT OF THE
UNPAID LABORERS AND MATERIALMEN, HOLDING THAT AS LONG AS THERE ARE
"CREDITORS OF THE CLASS FOR WHOSE BENEFIT THE ORIGINAL SURETY BOND WAS
WRITTEN  ...  THE SURETY COMPANY CANNOT PARTICIPATE IN DIVIDENDS FROM
THE ESTATE UNTIL THESE CREDITORS HAVE BEEN PAID IN FULL."  THUS UNDER
THE ORDER THE THREE UNPAID LABORERS AND MATERIALMEN WERE TO RECEIVE IN
ADDITION TO DIVIDENDS ON THEIR OWN CLAIMS A PRO-RATA SHARE OF DIVIDENDS
OTHERWISE DUE THE PETITIONER UNTIL THEY HAD BEEN PAID IN FULL OR THE
PETITIONER'S DIVIDEND HAD BEEN EXHAUSTED.  THE DISTRICT COURT SUSTAINED
THE REFEREE'S ORDER, 53 F.SUPP.  131, AND THE CIRCUIT COURT OF APPEALS
AFFIRMED, 148 F.2D 986.  WE GRANTED CERTIORARI BECAUSE OF PETITIONER'S
CONTENTION THAT THE ORDER SUBORDINATING ITS CLAIMS FAILED TO TAKE INTO
CONSIDERATION CONTRACTUAL RIGHTS OF THE SURETY UNDER STATE LAW. 

PETITIONER ARGUES THAT BECAUSE THE STATE STATUTE INCORPORATED INTO
THE BOND REQUIRES LABORERS AND MATERIALMEN EITHER TO FILE A LIEN CLAIM
OR NOTIFY THE SURETY WITHIN A SPECIFIED PERIOD AFTER COMPLETION OF THE
JOB, THE REFEREE ERRED IN SUBORDINATING THE SURETY'S CLAIM TO THOSE OF
THE LABORERS AND MATERIALMEN WHO HAD NOT COMPLIED WITH THE STATUTORY
NOTICE PROVISION.  THE RIGHTS OF THOSE CREDITORS, IT IS ARGUED, HAD
NEVER, UNDER CALIFORNIA LAW, BEEN MORE THAN INCHOATE, AND EVEN AS SUCH
HAD BEEN COMPLETELY EXTINGUISHED PRIOR TO THE BANKRUPTCY PROCEEDINGS
BECAUSE OF A FAILURE TO GIVE THE STATUTORY NOTICE.  CONSEQUENTLY, THE
PETITIONER URGES, THESE CLAIMS OUGHT NOT TO BE PREFERRED IN A FEDERAL
BANKRUPTCY PROCEEDING.  WE THINK THIS CONTENTION IS WITHOUT MERIT AND
THAT THE ORDER OF THE REFEREE WAS CORRECT. 

WE RECENTLY HAD OCCASION TO REITERATE THAT FEDERAL BANKRUPTCY LAW,
NOT STATE LAW, GOVERNS THE DISTRIBUTION OF A BANKRUPT'S ASSETS TO HIS
CREDITORS.  PRUDENCE REALIZATION CORP. V. GEIST, 316 U.S. 89, 95.  SEE
ALSO PEPPER V. LITTON, 308 U.S. 295, 303-306; PRUDENCE REALIZATION
CORP. V. FERRIS, 323 U.S. 650, 653.  TRUE, WE STATED IN BOTH PRUDENCE
OPINIONS THAT THE FEDERAL LAW GOVERNING DISTRIBUTION OF A BANKRUPT'S
ESTATE SHOULD BE APPLIED WITH "APPROPRIATE REGARD FOR RIGHTS ACQUIRED
UNDER RULES OF STATE LAW  ..."  BUT THE EXTENT TO WHICH STATE LAW IS TO
BE SO CONSIDERED IS IN THE LAST ANALYSIS A MATTER OF FEDERAL LAW.  HERE
THE REFEREE'S SUBORDINATION OF THE SURETY COMPANY'S CLAIM DID NOT ONLY
FOLLOW THE WELL-ESTABLISHED RULE UNDER FEDERAL BANKRUPTCY LAW, BUT ALSO
ACHIEVED A RESULT IN COMPLETE HARMONY WITH CALIFORNIA'S AIM, EXPRESSED
BY BOTH ITS CONSTITUTION N1 AND STATUTES, OF PROVIDING MATERIALMEN'S
AND WORKERS' CLAIMS WITH EXTRAORDINARY SECURITY. 

THE ESTABLISHED FEDERAL RULE OF DISTRIBUTION IN A SITUATION SUCH AS
THE ONE BEFORE US WAS CLEARLY SET FORTH IN AMERICAN SURETY CO. V.
WESTINGHOUSE ELECTRIC CO., 296 U.S. 133.  IN THAT CASE THE SURETY
COMPANY HAD PAID OUT TO VARIOUS CREDITORS THE FULL AMOUNT OF THE
STATUTORY SURETY BOND AND FILED A CLAIM IN THE BANKRUPTCY PROCEEDING
BASED ON THOSE PAYMENTS.  THE SURETY COMPANY ARGUED THAT SINCE ITS FULL
LIABILITY HAD BEEN EXTINGUISHED, IT SHOULD BE PERMITTED TO SHARE
RATABLY WITH ALL THE BANKRUPT'S GENERAL CREDITORS.  THAT CONTENTION WAS
REJECTED.  THE COURT POINTED OUT THAT WHILE LIABILITY OF THE SURETY
COMPANY HAD ENDED, CONTROLLING EQUITABLE PRINCIPLES FORBADE THE SURETY
FROM SHARING THE BANKRUPT'S ASSETS ON EQUAL TERMS WITH ANY CREDITORS
WHO WERE MEMBERS OF THE CLASS ITS BOND HAD BEEN GIVEN TO PROTECT.  THE
RULE STATED BY THE COURT WAS THAT WHERE INSOLVENCY SUPERVENES, A
SURETY'S CLAIM IS POSTPONED UNTIL PAYMENTS IN FULL ARE MADE TO ALL
"CLAIMANTS WHO ARE MEMBERS OF THE CLASS OF CREDITORS COVERED BY THE
BOND." 

THE PETITIONER ATTEMPTS TO DISTINGUISH THIS CASE BY ARGUING THAT THE
MATERIALMEN AND WORKERS TO WHOSE CLAIMS ITS CLAIM HAS BEEN SUBORDINATED
WERE NOT "COVERED BY THE BOND."  THIS CONTENTION RESTS ON THE CLAIM
THAT ACCORDING TO THE CONSTRUCTION OF THE APPLICABLE STATE STATUTES BY
THE CALIFORNIA COURTS THE BOND DOES NOT PROTECT MATERIALMEN AND WORKERS
WHO, AS THE ONES HERE INVOLVED, HAVE NOT COMPLIED WITH STATUTORY FILING
AND NOTICE PROVISIONS.  WHILE THIS CLAIM AS TO CALIFORNIA LAW IS DENIED
BY THE RESPONDENT, WE NEED NOT RESOLVE THE DISPUTE.  FOR EVEN IF
PETITIONER'S CLAIM AS TO CALIFORNIA LAW IS CORRECT, THE CREDITORS IN
THE WESTINGHOUSE CASE WERE CERTAINLY NO MORE PROTECTED BY THAT BOND
AFTER THE SURETY HAD PAID OUT THE FULL AMOUNT, THAN THE MATERIALMEN AND
LABORERS ARE SAID TO BE PROTECTED HERE AFTER THE TIME FOR NOTIFYING THE
SURETY HAD EXPIRED.  THE PHRASE "COVERED BY THE BOND" AS USED IN THE
WESTINGHOUSE CASE DID NOT HAVE THE MEANING PETITIONER ASCRIBES TO IT
BUT HAD REFERENCE RATHER TO THE CLASS OF CREDITORS FOR WHOSE BENEFIT
THE STATUTORY BOND WAS EXECUTED.  ALL MATERIALMEN AND LABORERS WHO
CONTRIBUTED TO STRATTON'S JOB CLEARLY COME WITHIN THAT CLASS.  THE
BASIC REASON FOR THE RULE ANNOUNCED IN THE WESTINGHOUSE CASE APPLIES
WITH EQUAL FORCE HERE.  THE BOND WAS INTENDED TO PROTECT MATERIALMEN
AND LABORERS WHO WORKED ON THE JOB SO THAT THEY WOULD NOT HAVE TO BEAR
THE RISK OF STRATTON'S INSOLVENCY.  BUT FOR HIS INSOLVENCY AND
BANKRUPTCY THESE LABORERS AND MATERIALMEN WOULD HAVE BEEN ABLE TO
RECOVER FROM HIM THE MONEY DUE THEM, NO MATTER WHAT THEIR RIGHTS
AGAINST THE SURETY MIGHT HAVE BEEN.  CONSEQUENTLY THE SURETY SHOULD
NOT, BY CLAIMING UNDER SUBROGATION OR INDEMNITY FOR MONEY PAID TO SOME
OF THE CREDITORS FOR WHOSE BENEFIT THE BOND WAS INTENDED, BE ALLOWED TO
REDUCE THE SHARE OF THE BANKRUPT'S ASSETS DUE TO OTHER CREDITORS WHOM
THE BOND ALSO WAS INTENDED TO PROTECT FROM INSOLVENCY.  FOR THIS WOULD
TEND TO DEFEAT THE VERY PURPOSE FOR WHICH THE BOND WAS GIVEN AND
THEREFORE CANNOT BE PERMITTED UNDER THE EQUITABLE PRINCIPLES GOVERNING
DISTRIBUTION OF A BANKRUPT'S ASSETS.  PRUDENCE REALIZATION CORP. V.
GEIST, SUPRA, AT P. 96.  AFFIRMED. 

FN1  ARTICLE XX, SEC. 15, OF THE CONSTITUTION OF THE STATE OF
CALIFORNIA IS AS FOLLOWS: 

"MECHANICS, MATERIALMEN, ARTISANS, AND LABORERS OF EVERY CLASS, SHALL
HAVE A LIEN UPON THE PROPERTY UPON WHICH THEY HAVE BESTOWED LABOR OR
FURNISHED MATERIAL FOR THE VALUE OF SUCH LABOR DONE AND MATERIAL
FURNISHED; AND THE LEGISLATURE SHALL PROVIDE, BY LAW, FOR THE SPEEDY
AND EFFICIENT ENFORCEMENT OF SUCH LIENS." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






ASHCRAFT V. TENNESSEE, 327 U.S. 274 


NO. 381.  ARGUED FEBRUARY 6, 7, 1946.  - DECIDED FEBRUARY 25, 1946.  -
REVERSED. 


1.  ON RETRIAL OF PETITIONER, WHOSE CONVICTION IN A CRIMINAL CASE IN A
STATE COURT HAD BEEN REVERSED BY THIS COURT ON THE GROUND THAT IT HAD
BEEN OBTAINED BY USE OF A COERCED CONFESSION, ASHCRAFT V. TENNESSEE,
322 U.S. 143, THE JURY WAS PERMITTED TO HEAR TESTIMONY NARRATING
EVERYTHING (EXCEPT THE CONFESSION) THAT TOOK PLACE DURING THE
INQUISITION AT WHICH THE CONFESSION WAS OBTAINED.  THIS RESULTED IN
ANOTHER CONVICTION.  HELD:  THERE WAS NO RELEVANT DISTINCTION BETWEEN
THE USE OF THIS EVIDENCE AND THE USE OF THE CONFESSION; AND THE
CONVICTION IS REVERSED AS BEING CONTRARY TO THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  P. 278. 

2.  IN ORAL ARGUMENT BEFORE THIS COURT IN THE EARLIER PROCEEDING, THE
STATE'S ATTORNEY ADMITTED THAT THE CONFESSION WAS THE ONLY EVIDENCE
AGAINST PETITIONER AND THIS WAS MENTIONED IN THE OPINION OF THIS COURT,
WHICH REVERSED THE CONVICTION AND REMANDED THE CAUSE TO THE STATE
SUPREME COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS
COURT.  HELD:  THE MANDATE OF THIS COURT DID NOT FORBID A NEW TRIAL OF
PETITIONER.  P. 279, N. 1. 

3.  A STATE SUPREME COURT'S CONSTRUCTION OF ITS OWN MANDATE IS
FINAL.  P. 279, N. 1. 

ASHCRAFT ET AL. V. TENNESSEE. 

CERTIORARI TO THE SUPREME COURT OF TENNESSEE. 

PETITIONER WAS CONVICTED AS AN ACCESSORY BEFORE THE FACT OF THE
MURDER OF HIS WIFE.  ON APPEAL, THE CONVICTION WAS AFFIRMED BY THE
STATE SUPREME COURT.  ON CERTIORARI, THIS COURT REVERSED THE CONVICTION
ON THE GROUND THAT IT HAD BEEN OBTAINED BY USE OF A COERCED CONFESSION,
CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  322
U.S. 143.  ON RETRIAL, THE JURY WAS PERMITTED TO HEAR TESTIMONY
NARRATING EVERYTHING (EXCEPT THE CONFESSION) WHICH TOOK PLACE DURING
THE INQUISITION AT WHICH THE CONFESSION WAS OBTAINED.  THE SECOND
CONVICTION WAS AFFIRMED BY THE STATE SUPREME COURT.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 713.  REVERSED AND REMANDED FOR FURTHER
PROCEEDINGS.  P. 279. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

MRS. ZELMA ASHCRAFT WAS MURDERED IN SHELBY COUNTY, TENNESSEE.  THE
PETITIONER WARE WAS CONVICTED FOR THE MURDER.  THE PETITIONER ASHCRAFT,
HUSBAND OF THE DECEASED, WAS CONVICTED FOR BEING AN ACCESSORY BEFORE
THE FACT.  THE SUPREME COURT OF TENNESSEE AFFIRMED THE CONVICTIONS.  WE
REVERSED THE JUDGMENT AS TO ASHCRAFT, VACATED IT AS TO WARE, AND
REMANDED THE CASE TO THE SUPREME COURT OF TENNESSEE FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH OUR OPINION.  ASHCRAFT V. TENNESSEE,
322 U.S. 143.  THE STATE SUPREME COURT THEN ORDERED THE CASE REMANDED
TO THE CRIMINAL COURT OF SHELBY COUNTY WITH THE SAME DIRECTIONS AS TO
FURTHER PROCEDURE.  THE PETITIONERS WERE AGAIN CONVICTED AND THE STATE
SUPREME COURT AFFIRMED. 

OUR REVERSAL OF ASHCRAFT'S FIRST CONVICTION WAS ON THE GROUND THAT
HIS CONVICTION RESULTED FROM A TRIAL SO CONDUCTED AS TO DEPRIVE
ASHCRAFT OF DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  AT THAT TRIAL THE STATE HAD BEEN PERMITTED TO INTRODUCE IN
EVIDENCE AN ALLEGED CONFESSION WHICH HAD BEEN OBTAINED FROM ASHCRAFT
AFTER THIRTY-SIX HOURS CONTINUOUS GRILLING BY INVESTIGATING OFFICERS,
WHO WERE HOLDING HIM INCOMMUNICADO IN THE COUNTY JAIL.  THIS ALLEGED
CONFESSION WAS IN LARGE PART WRITTEN BUT ASHCRAFT HAD NEITHER WRITTEN
NOR SIGNED IT.  WARE'S CONVICTION HAD ALSO RESTED ON A CONFESSION, THE
ADMISSION OF WHICH AS EVIDENCE HE HAD CHALLENGED AS A DENIAL OF DUE
PROCESS.  WITHOUT PASSING ON THE CONSTITUTIONAL QUESTION RAISED BY
WARE, WE VACATED THE JUDGMENT AGAINST HIM FOR OTHER REASONS STATED IN
OUR OPINION.  IN THE JOINT TRIAL OF BOTH PETITIONERS WHICH RESULTED IN
THE JUDGMENT NOW BEFORE US, THE STATE AGAIN INTRODUCED WARE'S
CONFESSION.  HIS OBJECTION TO IT BASED ON THE DUE PROCESS CLAUSE WAS
OVERRULED.  BEFORE REACHING THE ISSUES RAISED BY WARE, WE SHALL DISPOSE
OF THE QUESTIONS WHICH ASHCRAFT NOW RAISES. 

IN OUR FIRST OPINION WE POINTED OUT IN DETAIL ALLEGED INCRIMINATORY
ADMISSIONS USED TO CONVICT ASHCRAFT AND THE CIRCUMSTANCES UNDER WHICH
HE HAD MADE THEM.  IN SUMMARY THOSE STATEMENTS AND CIRCUMSTANCES WERE
THESE.  ON A SATURDAY AT 7:00 P.M., NINE DAYS AFTER HIS WIFE WAS FOUND
DEAD, OFFICERS WENT TO ASHCRAFT'S HOME AND TOOK HIM TO A FIFTH-FLOOR
COUNTY JAIL ROOM.  THERE HE WAS HELD WITHOUT REST OR SLEEP UNTIL 7:00
O'CLOCK MONDAY MORNING, OR 36 HOURS.  DURING THE ENTIRE TIME ASHCRAFT
WAS SUBJECTED TO A CONSTANT BARRAGE OF QUESTIONS AND CHARGES. 
ACCORDING TO THE OFFICERS' TESTIMONY HE, FOR ABOUT 28 HOURS,
CONSISTENTLY DENIED ANY KNOWLEDGE ABOUT, OR COMPLICITY IN, THE CRIME. 
THE OFFICERS SWORE, HOWEVER, THAT AFTER 11:00 P.M.  SUNDAY NIGHT
ASHCRAFT FINALLY CONFESSED THAT HE KNEW WHO KILLED HIS WIFE, BUT AT THE
SAME TIME DENIED THAT HE HAD DONE IT. ACCORDING TO THIS TESTIMONY
ASHCRAFT SAID THAT WARE HAD COME TO HIS HOME BEFORE DAYLIGHT, JUST AS
MRS. ASHCRAFT WAS GETTING IN AN AUTOMOBILE TO TAKE A JOURNEY; THAT HE
WATCHED WARE FORCE MRS. ASHCRAFT TO DRIVE THE AUTOMOBILE AWAY FROM HOME
WITH WARE ACCOMPANYING HER; THAT ASHCRAFT, AFTER MAKING SLIGHT BUT
INEFFECTIVE PROTESTS WENT BACK TO HIS ROOM, LATER WENT TO WORK, AND
THAT HE MADE NO REPORT TO THE OFFICERS BUT KEPT HIS KNOWLEDGE SECRET
BECAUSE HE WAS AFRAID OF WARE.  LATER ON THE SUNDAY NIGHT THAT ASHCRAFT
WAS BEING INTERROGATED IN THE JAIL, A COURT REPORTER WAS SUMMONED AND
HE, ACCORDING TO THE EVIDENCE, TOOK DOWN COMPLETE CONFESSIONS OF GUILT
GIVEN BOTH BY WARE AND ASHCRAFT.  THE REPORTER COMPLETED TRANSCRIPTION
OF HIS NOTES ABOUT 7:00 O'CLOCK MONDAY MORNING.  THESE TRANSCRIBED
NOTES WERE OFFERED AS TO BOTH THE PETITIONERS IN THE FIRST TRIAL. 
WITNESSES AT THAT TRIAL, INCLUDING ASHCRAFT'S DOCTOR, ALSO SWORE THAT
BOTH ASHCRAFT AND WARE HAD BEEN CAUSED TO STRIP FOR COMPLETE PHYSICAL
EXAMINATIONS.  THE ONLY APPARENT PURPOSE OF THIS WAS TO COUNTERACT ANY
LATER CLAIM BY WARE OR ASHCRAFT THAT THEIR ALLEGED CONFESSIONS WERE THE
PRODUCT OF PHYSICAL MISTREATMENT. 

AT AN EARLY STAGE IN THE NEW TRIAL, RESULTING IN THE CONVICTION WE
ARE NOW REVIEWING, THE PROSECUTING ATTORNEY ANNOUNCED THAT HE INTENDED
TO USE THIS JAIL EVIDENCE AGAIN, "ABOUT EVERYTHING EXCEPT THE
CONFESSION."  AND THAT WAS DONE.  THE WITNESSES FOR THE STATE IN THE
FIRST AND THE SECOND TRIALS WERE THE SAME.  CONSTRUING OUR MANDATE AS
PROHIBITING ONLY THE ADMISSION OF THE WRITTEN UNSIGNED CONFESSION, THE
TRIAL JUDGE ALLOWED THE JURY TO LISTEN TO TESTIMONY NARRATING
EVERYTHING ELSE THAT TOOK PLACE DURING THE ENTIRE 36 HOURS ASHCRAFT WAS
QUESTIONED WITH NO ONE PRESENT BUT HIS INQUISITORS AND THOSE SUMMONED
BY THEM TO BUTTRESS THEIR FUTURE EVIDENCE. 

AN INSPECTION OF THE RECORD SHOWS BEYOND ANY PERADVENTURE OF DOUBT
THAT THE TESTIMONY USED IN THE LAST TRIAL SHOWING WHAT TOOK PLACE
DURING ASHCRAFT'S EXAMINATION MIGHT WELL HAVE HAD THE SAME PRACTICAL
EFFECT ON THE JURY THE WRITTEN UNSIGNED CONFESSION MIGHT HAVE HAD, HAD
IT BEEN INTRODUCED.  FOR THE CIRCUMSTANCES LEADING UP TO IT WERE
NARRATED IN DETAIL BOTH WITH REFERENCE TO WARE AND ASHCRAFT.  EVEN THE
DOCTOR WHO EXAMINED WARE REPORTED NOT ONLY ON WARE'S PHYSICAL CONDITION
BUT ALSO TESTIFIED IN THE SAME BREATH ABOUT HIS EXAMINATION OF
ASHCRAFT. 

RESPONDENT CLAIMS THAT THIS TESTIMONY DID NOT HARM ASHCRAFT AND THAT
ASHCRAFT'S SUPPOSED STATEMENT THAT HE KNEW WHO KILLED HIS WIFE WAS
EXCULPATORY.  IN FACT, IN THE CONTEXT OF THIS CASE, THAT STATEMENT WAS
THE STRONGEST POSSIBLE EVIDENCE AGAINST ASHCRAFT, WHO WAS CHARGED WITH
HAVING BEEN AN ACCESSORY BEFORE THE FACT.  FOR TEN DAYS FOLLOWING HIS
WIFE'S DEATH, ASHCRAFT HAD PURPORTED TO HELP THE OFFICERS IN THEIR
EFFORTS TO SOLVE THE CRIME, AND FOR THE FIRST TWENTY-EIGHT HOURS OF HIS
JAIL INTERROGATION HE HAD NOT ONLY STOUTLY MAINTAINED HIS OWN INNOCENCE
WHENEVER IT WAS QUESTIONED, BUT HAD ALSO DENIED ANY KNOWLEDGE WHATEVER
AS TO THE IDENTITY OF THE MURDERER.  TO ADMIT KNOWLEDGE OF THE MURDER
AND OF WHO COMMITTED IT AFTER THESE PROTESTATIONS BY HIM WOULD FOR MOST
PEOPLE BE THE EQUIVALENT OF A CONFESSION OF GUILTY PARTICIPATION IN
ADVANCE OF THE CRIME.  WILFUL CONCEALMENT OF MATERIAL FACTS HAS ALWAYS
BEEN CONSIDERED AS EVIDENCE OF GUILT.  AND STATEMENTS DENYING GUILT
FOLLOWED BY A CONFESSION OF KNOWLEDGE OF WHO THE GUILTY PERSON WAS MAY
CARRY THE STRONGEST IMPLICATIONS OF A GUILTY KNOWLEDGE.  CF. BRAM V.
UNITED STATES, 168 U.S. 532, 562.  THIS IS PARTICULARLY TRUE WHERE A
HUSBAND ADMITS THAT HE HAS, AGAINST THE STRONGEST PRESSURES,
DELIBERATELY CONCEALED THE IDENTITY OF HIS WIFE'S MURDERER FOR TEN
DAYS. 

WE SEE NO RELEVANT DISTINCTION BETWEEN INTRODUCTION OF THIS STATEMENT
AND THE UNSIGNED ALLEGED CONFESSION, EXCEPT THE POSSIBILITY THAT THE
ADMISSION OF THIS LONG-CONCEALED KNOWLEDGE WAS PERHAPS A MORE EFFECTIVE
CONFESSION OF GUILT THAN THE WRITTEN UNSIGNED ALLEGED CONFESSION WOULD
HAVE BEEN.  ALL THE REASONS GIVEN FOR REVERSAL OF THE JUDGMENT AGAINST
ASHCRAFT IN THE FIRST CASE, WHICH WE NEED NOT REPEAT, APPLY WITH EQUAL
FORCE HERE. 

THE STATE HAS ASKED THAT IF ASHCRAFT'S CASE IS REVERSED WE FOLLOW THE
SAME COURSE AS TO WARE THAT WE DID IN THE FIRST CASE, AND VACATE THE
JUDGMENT AGAINST HIM.  FOR THIS REASON, AS WELL AS THE REASONS GIVEN IN
OUR FORMER OPINION, WE DO NOT PASS ON THE CONSTITUTIONAL QUESTION
RAISED BY WARE CONCERNING HIS ALLEGED CONFESSION, BUT VACATE THE
JUDGMENT OF THE SUPREME COURT OF TENNESSEE AFFIRMING WARE'S
CONVICTION. 

WE NEED NOT NOW DECIDE OTHER QUESTIONS THAT HAVE BEEN ARGUED EXCEPT
ONE CONTENTION MENTIONED BELOW.  FN1 

THE JUDGMENT AGAINST PETITIONER ASHCRAFT IS REVERSED AND THAT AGAINST
PETITIONER WARE IS VACATED.  BOTH CASES ARE REMANDED TO THE STATE
SUPREME COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THE PETITIONER ASHCRAFT CONTENDS THAT IN THE ORAL ARGUMENT
BEFORE THIS COURT, WHEN THE FIRST CONVICTION WAS BEING CHALLENGED, THE
STATE'S ATTORNEY ADMITTED THAT THE CONFESSION WAS THE ONLY EVIDENCE
AGAINST ASHCRAFT, AND SINCE WE MENTIONED THIS FACT IN OUR OPINION, OUR
MANDATE AND THE STATE SUPREME COURT'S MANDATE, WHICH ADOPTED OUR
MANDATE, IN EFFECT FORBADE A NEW TRIAL OF PETITIONER.  WE DO NOT THINK
OUR MANDATE LENDS ITSELF TO SUCH AN INTERPRETATION.  AS TO THE STATE
SUPREME COURT'S MANDATE, THAT COURT HAS CONSTRUED IT BY AFFIRMING
PETITIONERS' SECOND CONVICTIONS.  THE STATE COURT'S CONSTRUCTION OF ITS
OWN MANDATE IS FINAL. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION ON THE BASIS OF THE
DECISION IN ASHCRAFT V. TENNESSEE, 322 U.S. 143. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :

















COMMISSIONER V. TOWER, 327 U.S. 280 


NO. 317.  ARGUED JANUARY 10, 11, 1946.  - DECIDED FEBRUARY 25, 1946.  -
148 F.2D 388, REVERSED. 


RESPONDENT HAD MANAGED AND CONTROLLED A MANUFACTURING BUSINESS SINCE
1927.  FROM 1933 TO 1937 IT WAS OPERATED AS A CORPORATION.  HE WAS
PRESIDENT, OWNING 445 OUT OF 500 SHARES; HIS WIFE WAS NOMINAL VICE
PRESIDENT, OWNING FIVE SHARES; AND ONE AMIDON WAS SECRETARY, OWNING 25
SHARES.  RESPONDENT TRANSFERRED 190 SHARES TO HIS WIFE, PAYING A GIFT
TAX; AND, THREE DAYS LATER, IN ORDER TO SAVE TAXES, THE CORPORATION WAS
DISSOLVED AND A PARTNERSHIP WAS ORGANIZED CONSISTING OF RESPONDENT AND
AMIDON AS GENERAL PARTNERS AND RESPONDENT'S WIFE AS A LIMITED PARTNER
WITH NO AUTHORITY TO PARTICIPATE IN THE CONDUCT OF THE BUSINESS.  EACH
CONTRIBUTED THE VALUE OF HIS STOCK AND NO NEW CAPITAL WAS CONTRIBUTED. 
RESPONDENT CONTINUED TO MANAGE AND CONTROL THE BUSINESS, WHICH WAS
CONDUCTED AS BEFORE EXCEPT THAT RESPONDENT AND AMIDON CEASED TO DRAW
SALARIES.  THE WIFE CONTRIBUTED NO SERVICES TO THE BUSINESS AND USED
HER SHARE OF THE INCOME TO BUY THE SAME TYPE OF THINGS SHE HAD BOUGHT
FOR HERSELF, HOME AND FAMILY BEFORE THE PARTNERSHIP WAS FORMED.  HELD: 

1.  THESE FACTS WERE SUFFICIENT TO SUPPORT A FINDING BY THE TAX COURT
THAT, AS BETWEEN RESPONDENT AND HIS WIFE, NO GENUINE "PARTNERSHIP"
WITHIN THE MEANING OF 26 U.S.C. SECS. 181, 182 EXISTED, THAT RESPONDENT
EARNED THE INCOME, AND THAT HE SHOULD BE TAXED ON IT UNDER 26 U.S.C.
SEC. 22(A).  PP. 286, 291, 292. 

2.  A FINDING OF FACT BY THE TAX COURT, BEING SUPPORTED BY EVIDENCE,
IS FINAL.  P. 287. 

3.  IN PASSING ON THE QUESTION WHETHER AN ALLEGED PARTNERSHIP IS A
REAL PARTNERSHIP WITHIN THE MEANING OF THE FEDERAL TAX LAWS, THE TAX
COURT IS NOT GOVERNED BY THE TREATMENT OF THE PARTNERSHIP BY STATE LAW
AND DECISIONS FOR PURPOSES OF STATE LAW.  P. 287. 

4.  WHILE THE LEGAL RIGHT OF A TAXPAYER TO DECREASE THE AMOUNT OF
WHAT OTHERWISE WOULD BE HIS TAXES OR ALTOGETHER AVOID THEM BY MEANS
WHICH THE LAW PERMITS CAN NOT BE DOUBTED, GREGORY V. HELVERING, 293
U.S. 465, THIS COURT CAN NOT ORDER THE TAX COURT TO SHUT ITS EYES TO
THE REALITIES OF TAX AVOIDANCE SCHEMES.  P. 288. 

5.  IN PASSING ON THE APPLICABILITY OF 26 U.S.C. SECS. 181, 182 TO
INCOME FROM A "FAMILY PARTNERSHIP" - 

(A)  THE QUESTION IS NOT SIMPLY WHO ACTUALLY OWNED A SHARE OF THE
CAPITAL ATTRIBUTED TO THE WIFE ON THE PARTNERSHIP BOOKS BUT WHO EARNED
THE INCOME.  P. 289. 

(B)  IN THIS CASE, THAT ISSUE DEPENDS ON WHETHER THE HUSBAND AND WIFE
REALLY INTENDED TO CARRY ON BUSINESS AS A PARTNERSHIP.  P. 289. 

(C)  THESE ISSUES CAN NOT BE DECIDED SIMPLY BY LOOKING AT A SINGLE
STEP IN A COMPLICATED TRANSACTION.  PP. 289, 290. 

(D)  TO DECIDE WHO WORKED FOR, OTHERWISE CREATED OR CONTROLLED THE
INCOME, ALL STEPS IN THE PROCESS OF EARNING THE PROFITS MUST BE TAKEN
INTO CONSIDERATION.  PP. 290. 

6.  A WIFE MAY BECOME A GENERAL OR LIMITED PARTNER WITH HER HUSBAND
FOR TAX, AS FOR OTHER, PURPOSES; BUT, WHEN THE HUSBAND PURPORTS TO HAVE
GIVEN HER A PARTNERSHIP INTEREST, SHE DOES NOT SHARE IN THE MANAGEMENT
AND CONTROL OF THE BUSINESS, AND SHE CONTRIBUTES NO VITAL ADDITIONAL
SERVICE, THE TAX COURT MAY PROPERLY TAKE THESE CIRCUMSTANCES INTO
CONSIDERATION IN DETERMINING WHETHER THE PARTNERSHIP IS REAL WITHIN THE
MEANING OF THE FEDERAL TAX LAWS.  P. 290. 

7.  IF, IN THE CIRCUMSTANCES OF THIS CASE, THE END RESULT OF THE
CREATION OF A HUSBAND-WIFE PARTNERSHIP, THOUGH VALID UNDER STATE LAWS,
IS THAT INCOME PRODUCED BY THE HUSBAND'S EFFORTS CONTINUES TO BE USED
FOR THE SAME BUSINESS AND FAMILY PURPOSES AS BEFORE THE PARTNERSHIP,
FAILURE TO TAX IT AS THE HUSBAND'S INCOME WOULD FRUSTRATE THE PURPOSE
OF 26 U.S.C. SEC. 22(A), DEFINING GROSS INCOME AS INCLUDING ALL
EARNINGS OF ANY INDIVIDUAL FROM "ANY SOURCE WHATEVER."  P. 291. 

8.  SINGLE TAX EARNINGS CAN NOT BE DIVIDED INTO TWO TAX UNITS AND
SURTAXES AVOIDED BY THE SIMPLE EXPEDIENT OF DRAWING UP PAPERS CREATING
A HUSBAND-WIFE PARTNERSHIP.  P. 291. 

COMMISSIONER OF INTERNAL REVENUE V. TOWER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE COMMISSIONER OF INTERNAL REVENUE LEVIED A DEFICIENCY ASSESSMENT
AGAINST RESPONDENT ON THE GROUND THAT THE PART OF THE EARNINGS OF A
"FAMILY PARTNERSHIP" WHICH HAD BEEN PAID TO, AND REPORTED BY, HIS WIFE
ACTUALLY HAD BEEN EARNED BY RESPONDENT AND SHOULD HAVE BEEN REPORTED AS
HIS INCOME.  THE TAX COURT SUSTAINED THE LEVY.  3 T.C. 396.  THE
CIRCUIT COURT OF APPEALS REVERSED.  148 F.2D 388.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 703.  REVERSED, P. 292. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT RESPONDENT'S
WIFE HAD IN HER INCOME TAX RETURNS FOR 1940 AND 1941 REPORTED AS HER
EARNINGS INCOME THAT ACTUALLY HAD BEEN EARNED BY HER HUSBAND BUT HAD
NOT BEEN REPORTED IN HIS RETURNS.  A DEFICIENCY ASSESSMENT WAS
CONSEQUENTLY LEVIED AGAINST THE RESPONDENT BY THE COMMISSIONER.  THE
PARTICULAR EARNINGS INVOLVED WERE A PORTION OF NET INCOME ATTRIBUTED TO
A PARTNERSHIP, TO WHICH, ACCORDING TO ITS RECORDS, 90 PER CENT OF THE
CAPITAL HAD BEEN CONTRIBUTED BY RESPONDENT AND HIS WIFE; OF THIS, 51
PERCENT HAD BEEN CONTRIBUTED BY THE RESPONDENT AND 39 PER CENT BY HIS
WIFE.  IF, AS RESPONDENT ASSERTS, THE CIRCUMSTANCES SURROUNDING THE
FORMATION AND OPERATION OF THIS PARTNERSHIP WERE SUCH AS TO BRING IT
WITHIN THE MEANING OF SECS. 181 AND 182 OF TITLE 26 OF THE U.S.C.  THEN
THE RESPONDENT AND HIS WIFE ARE LIABLE ONLY FOR THEIR RESPECTIVE
INDIVIDUAL SHARE OF THE BUSINESS' INCOME.  THESE SECTIONS PROVIDE THAT
PARTNERS ARE LIABLE FOR TAXES ON PARTNERSHIP INCOME ONLY IN THEIR
"INDIVIDUAL CAPACITY" AND THAT EACH PARTNER SHALL REPORT "HIS
DISTRIBUTIVE SHARE OF THE ORDINARY NET INCOME  ...  OF THE PARTNERSHIP
..."  BUT SEC. 11 OF TITLE 26 OF THE U.S.C. LEVIES A TAX ON THE "NET
INCOME OF EVERY INDIVIDUAL," AND THE "NET INCOME" IS REQUIRED TO BE
COMPUTED ON THE BASIS OF "GROSS INCOME" AS DEFINED IN SEC. 22(A), WHICH
BROADLY INCLUDES ALL EARNINGS OF ANY INDIVIDUAL FROM "ANY SOURCE
WHATEVER."  AND WE HAVE HELD THAT THE DOMINANT PURPOSE OF ALL SECTIONS
OF THE REVENUE LAWS, INCLUDING THESE, IS "THE TAXATION OF INCOME TO
THOSE WHO EARN OR OTHERWISE CREATE THE RIGHT TO RECEIVE IT AND ENJOY
THE BENEFIT OF IT WHEN PAID."  HELVERING V. HORST, 311 U.S. 112, 119. 
THE BASIC QUESTION IN DECIDING WHETHER THE COMMISSIONER'S DEFICIENCY
ASSESSMENT WAS PROPER, IS:  WAS THE INCOME ATTRIBUTED TO THE WIFE AS A
PARTNER INCOME FROM A PARTNERSHIP FOR WHICH SHE ALONE WAS LIABLE IN HER
"INDIVIDUAL CAPACITY," AS PROVIDED BY 26 U.S.C. SECS. 181 AND 182, OR
DID THE HUSBAND, DESPITE THE CLAIMED PARTNERSHIP, ACTUALLY CREATE THE
RIGHT TO RECEIVE AND ENJOY THE BENEFIT OF THE INCOME, SO AS TO MAKE IT
TAXABLE TO HIM UNDER SECS. 11 AND 22(A)? 

THE RESPONDENT ASKED THE TAX COURT TO REVIEW AND REDETERMINE THE
COMMISSIONER'S DEFICIENCY ASSESSMENT, INSISTING THAT THE INCOME IN
QUESTION WAS NOT THE RESPONDENT'S BUT HIS WIFE'S SHARE IN A
PARTNERSHIP.  THE COMMISSIONER URGED IN THE TAX COURT THAT THE WIFE HAD
CONTRIBUTED NEITHER SERVICES NOR CAPITAL TO THE PARTNERSHIP AND THAT
HER ALLEGED MEMBERSHIP IN THE PARTNERSHIP WAS A SHAM.  RESPONDENT
ADMITTED THAT SHE HAD NOT CONTRIBUTED HER SERVICES, BUT CONTENDED THAT
SHE HAD MADE A CONTRIBUTION OF CAPITAL AS SHOWN BY THE AMOUNT
ATTRIBUTED TO HER ON THE PARTNERSHIP BOOKS AND THAT SHE WAS A BONA FIDE
PARTNER.  HER ALLEGED CONTRIBUTION CONSISTED OF ASSETS WHICH THE
HUSBAND CLAIMED TO HAVE GIVEN TO HER THREE DAYS BEFORE THE FORMATION OF
THE PARTNERSHIP. 

THE TAX COURT CONCLUDED THAT THE RESPONDENT HAD NEVER EXECUTED A
COMPLETE GIFT OF THE ASSETS WHICH HIS WIFE LATER PURPORTEDLY
CONTRIBUTED TO THE PARTNERSHIP; THAT AFTER THE PARTNERSHIP WAS FORMED
RESPONDENT CONTINUED TO MANAGE AND CONTROL THE BUSINESS AS HE HAD DONE
FOR MANY YEARS BEFORE; THAT HIS ECONOMIC RELATION TO THE PORTION OF THE
PARTNERSHIP INCOME WHICH WAS ATTRIBUTED TO HIS WIFE WAS SUCH THAT IT
CONTINUED TO BE AVAILABLE TO BE USED FOR THE SAME PURPOSES AS BEFORE,
INCLUDING ORDINARY FAMILY PURPOSES; THAT THE EFFECT OF THE WHOLE
PARTNERSHIP ARRANGEMENT, SO FAR AS IT INVOLVED RESPONDENT AND HIS WIFE,
WAS A MERE REALLOCATION OF RESPONDENT'S BUSINESS INCOME WITHIN THE
FAMILY GROUP; AND THAT THE DISSOLUTION OF THE CORPORATION AND THE
SUBSEQUENT FORMATION OF THE PARTNERSHIP FULFILLED NO BUSINESS PURPOSE
OTHER THAN A REDUCTION OF THE HUSBAND'S INCOME TAX.  THE TAX COURT
CONCLUDED THAT THIS FAMILY PARTNERSHIP INCOME WAS IN FACT EARNED BY THE
HUSBAND; THAT THERE WAS NO REAL PARTNERSHIP BETWEEN PETITIONER AND HIS
WIFE FOR PURPOSES OF CARRYING ON A BUSINESS ENTERPRISE; THAT THE WIFE
RECEIVED A PORTION OF THE INCOME "ONLY BY REASON OF HER MARITAL
RELATIONSHIP," AND HELD THAT THE ENTIRE INCOME WAS, THEREFORE, TAXABLE
TO THE RESPONDENT UNDER 26 U.S.C. SEC. 22(A).  3 T.C. 396.  THE CIRCUIT
COURT OF APPEALS FOR THE SIXTH CIRCUIT REVERSED.  148 F.2D 388.  THE
CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT SUSTAINED A HOLDING BY
THE TAX COURT, BASED ON FACTS IN ALL MATERIAL RESPECTS SIMILAR TO THE
ONES IN THIS CASE, THAT ALL THE INCOME FROM A HUSBAND-WIFE PARTNERSHIP
WAS TAXABLE INCOME OF THE HUSBAND UNDER 26 U.S.C. SEC. 22(A).  LUSTHAUS
V. COMMISSIONER, 149 F.2D 232.  OTHER CIRCUIT COURTS OF APPEALS HAVE
ALSO SUSTAINED SIMILAR HOLDINGS BY THE TAX COURT.  FN1  AS IS INDICATED
BY NUMEROUS TAX COURT DECISIONS, ATTEMPTS TO ESCAPE SURTAXES BY
DIVIDING ONE EARNED INCOME INTO TWO OR MORE THROUGH THE DEVICE OF
FAMILY PARTNERSHIPS HAVE RECENTLY CREATED AN ACUTE PROBLEM.  FN2
BECAUSE OF THE VARIOUS VIEWS EXPRESSED AS TO CONTROLLING LEGAL
PRINCIPLES IN THE DECISIONS DISCUSSING SUCH ARRANGEMENTS, WE GRANTED
CERTIORARI BOTH IN THIS AND THE LUSTHAUS CASE, POST, P. 293. 

A STATEMENT OF SOME OF THE PERTINENT FACTS SHOWN BY THE RECORD AND ON
WHICH THE TAX COURT BASED ITS CONCLUSION WILL CAST SOME LIGHT ON THE
PROBLEM.  BROADLY SPEAKING, THESE FACTS FOLLOW A GENERAL PATTERN FOUND
IN MANY OF THE "FAMILY PARTNERSHIP" CASES.  THE BUSINESS HERE INVOLVED,
R.J. TOWER IRON WORKS, IS LOCATED IN GREENVILLE, MICHIGAN AND HAS
MANUFACTURED AND SOLD SAWMILL MACHINERY AND WOOD AND METAL STAMPINGS. 
RESPONDENT'S PARTICIPATION IN THE BUSINESS DATES BACK TWENTY-EIGHT
YEARS.  HE HAS MANAGED AND CONTROLED THE COMPANY SINCE THE DEATH OF HIS
FATHER IN 1927.  DURING THE TAX YEARS IN QUESTION THE BUSINESS HAD
FORTY TO SIXTY EMPLOYEES ON ITS PAY ROLL.  FROM 1933 TO 1937 THE
BUSINESS WAS OPERATED AS A CORPORATION.  THE RESPONDENT WAS THE
PRESIDENT OF THE CORPORATION AND OWNED 445 OUT OF THE 500 SHARES
OUTSTANDING,  FN3 HIS WIFE WAS VICE PRESIDENT AND OWNED FIVE SHARES,
AND ONE MR. AMIDON WAS THE SECRETARY, OWNING TWENTY-FIVE SHARES.  THESE
THREE ALSO CONSTITUTED THE BOARD OF DIRECTORS, AND WHILE TOWER MANAGED
THE CORPORATE AFFAIRS, AMIDON ACTED AS BOOKKEEPER.  MRS. TOWER
PERFORMED NO BUSINESS SERVICES. 

IN 1937 SUBSTANTIAL PROFITS POINTED TO INCREASED TAXES.  RESPONDENT'S
ATTORNEY AND HIS TAX ACCOUNTANT ADVISED HIM THAT DISSOLUTION OF THE
CORPORATION AND FORMATION OF A PARTNERSHIP WITH HIS WIFE AS A PRINCIPAL
PARTNER WOULD RESULT IN TAX SAVINGS AND ELIMINATE THE NECESSITY OF
FILING VARIOUS CORPORATE RETURNS.  THE SUGGESTED CHANGE WAS PUT INTO
EFFECT.  AUGUST 25, 1937, RESPONDENT TRANSFERRED 190 SHARES OF THE
CORPORATION'S STOCK TO HIS WIFE ON THE CONDITION THAT SHE PLACE THE
CORPORATE ASSETS REPRESENTED BY THESE SHARES INTO THE NEW PARTNERSHIP. 
RESPONDENT, TREATING THE STOCK TRANSFER TO HIS WIFE AS A GIFT VALUED AT
$57,000.00, LATER PAID A GIFT TAX OF $213.44.  THREE DAYS AFTER THE
STOCK TRANSFER THE CORPORATION WAS LIQUIDATED, A LIMITED PARTNERSHIP
WAS FORMED AND A CERTIFICATE OF PARTNERSHIP WAS DULY FILED FOR RECORD
AS REQUIRED BY MICHIGAN LAW.  ACCORDING TO THE BOOKS, THE VALUE OF THE
DONATED STOCK BECAME THE WIFE'S CONTRIBUTION TO THE PARTNERSHIP.  THE
FORMATION OF THE PARTNERSHIP DID NOT IN ANY WAY ALTER THE CONDUCT OF
THE BUSINESS, EXCEPT THAT BOTH AMIDON AND TOWER CEASED TO DRAW
SALARIES.  BY AN AGREEMENT MADE SHORTLY THEREAFTER, A READJUSTMENT WAS
MADE IN THE AMOUNT OF PROFITS EACH PARTNER WAS TO RECEIVE, UNDER WHICH
AMIDON'S SHARE BECAME THE EQUIVALENT OF, IF NOT MORE THAN, THE AMOUNT
OF THE SALARY HE HAD PREVIOUSLY DRAWN.  UNDER THE PARTNERSHIP AGREEMENT
THE RESPONDENT CONTINUED TO HAVE THE CONTROLLING VOICE IN THE BUSINESS,
AS TO PURCHASES, SALES, SALARIES, THE TIME OF DISTRIBUTION OF INCOME,
AND ALL OTHER ESSENTIALS.  RESPONDENT'S WIFE, AS A LIMITED PARTNER, WAS
PROHIBITED FROM PARTICIPATION IN THE CONDUCT OF THE BUSINESS.  SO FAR
AS APPEARS, THE PART OF HER PURPORTED SHARE OF THE PARTNERSHIP BUSINESS
SHE ACTUALLY EXPENDED WAS USED TO BUY WHAT A HUSBAND USUALLY BUYS FOR
HIS WIFE SUCH AS CLOTHES AND THINGS FOR THE FAMILY OR TO CARRY ON
ACTIVITIES ORDINARILY OF INTEREST TO THE FAMILY AS A GROUP. 

WE ARE OF THE OPINION THAT THE FOREGOING FACTS WERE SUFFICIENT TO
SUPPORT THE TAX COURT'S FINDING THAT THE WIFE WAS NOT A PARTNER IN THE
BUSINESS.  FN4  A PARTNERSHIP IS GENERALLY SAID TO BE CREATED WHEN
PERSONS JOIN TOGETHER THEIR MONEY, GOODS, LABOR, OR SKILL FOR THE
PURPOSE OF CARRYING ON A TRADE, PROFESSION, OR BUSINESS AND WHEN THERE
IS COMMUNITY OF INTEREST IN THE PROFITS AND LOSSES.  FN5  WHEN THE
EXISTENCE OF AN ALLEGED PARTNERSHIP ARRANGEMENT IS CHALLENGED BY
OUTSIDERS, THE QUESTION ARISES WHETHER THE PARTNERS REALLY AND TRULY
INTENDED TO JOIN TOGETHER FOR THE PURPOSE OF CARRYING ON BUSINESS AND
SHARING IN THE PROFITS OR LOSSES OR BOTH.  AND THEIR INTENTION IN THIS
RESPECT IS A QUESTION OF FACT, TO BE DETERMINED FROM TESTIMONY
DISCLOSED BY THEIR "AGREEMENT, CONSIDERED AS A WHOLE, AND BY THEIR
CONDUCT IN EXECUTION OF ITS PROVISIONS."  DRENNEN V. LONDON ASSURANCE
CO., 113 U.S. 51, 56; COX V. HICKMAN, 8 H.L. CAS. 268.  WE SEE NO
REASON WHY THIS GENERAL RULE SHOULD NOT APPLY IN TAX CASES WHERE THE
GOVERNMENT CHALLENGES THE EXISTENCE OF A PARTNERSHIP FOR TAX PURPOSES. 
FN6  HERE THE TAX COURT, ACTING PURSUANT TO ITS AUTHORITY IN CONNECTION
WITH THE ENFORCEMENT OF FEDERAL LAWS, HAS FOUND FROM TESTIMONY BEFORE
IT THAT RESPONDENT AND HIS WIFE DID NOT INTEND TO CARRY ON BUSINESS AS
A PARTNERSHIP.  THIS FINDING OF FACT, SINCE SUPPORTED BY EVIDENCE, IS
FINAL.  COMMISSIONER V. HEININGER, 320 U.S. 467, 475; DOBSON V.
COMMISSIONER, 320 U.S. 489.  THE DECISION OF THE TAX COURT WAS
THEREFORE CORRECT UNLESS, AS RESPONDENT CONTENDS, THE TAX COURT
ERRONEOUSLY DISREGARDED OR IMPROPERLY APPLIED CERTAIN LEGAL
PRINCIPLES. 

RESPONDENT CONTENDS THAT THE PARTNERSHIP ARRANGEMENT HERE IN QUESTION
WOULD HAVE BEEN VALID UNDER MICHIGAN LAW AND ARGUES THAT THE TAX COURT
SHOULD CONSEQUENTLY HAVE HELD IT VALID FOR TAX PURPOSES ALSO.  BUT THE
TAX COURT IN MAKING A FINAL AUTHORITATIVE FINDING ON THE QUESTION
WHETHER THIS WAS A REAL PARTNERSHIP IS NOT GOVERNED BY HOW MICHIGAN LAW
MIGHT TREAT THE SAME CIRCUMSTANCES FOR PURPOSES OF STATE LAW.  THUS,
MICHIGAN COULD AND MIGHT DECIDE THAT THE STOCK-TRANSFER HERE WAS
SUFFICIENT UNDER STATE LAW TO PASS TITLE TO THE WIFE, SO THAT IN THE
EVENT OF HER DEATH IT WOULD PASS TO WHATEVER MEMBERS OF HER FAMILY
WOULD BE ENTITLED TO RECEIVE IT UNDER MICHIGAN'S LAW OF DESCENT AND
DISTRIBUTION.  BUT MICHIGAN CANNOT, BY ITS DECISIONS AND LAWS GOVERNING
QUESTIONS OVER WHICH IT HAS FINAL SAY, ALSO DECIDE ISSUES OF FEDERAL
TAX LAW AND THUS HAMPER THE EFFECTIVE ENFORCEMENT OF A VALID FEDERAL
TAX LEVIED AGAINST EARNED INCOME.  THE CONTENTION WAS REJECTED IN LUCAS
V. EARL, 281 U.S. 111.  THERE HUSBAND AND WIFE MADE AN AGREEMENT FOR
JOINT OWNERSHIP OF THE HUSBAND'S FUTURE INCOME.  ASSUMING THAT THE
HUSBAND'S FUTURE EARNINGS WERE UNDER CALIFORNIA LAW CONSIDERED AS
PARTLY OWNED BY THE WIFE, THIS COURT REFUSED TO ACCEPT THE STATE'S
CONCEPT OF THE EFFECT OF THE AGREEMENT WHICH WOULD HAVE REDUCED THE
FEDERAL TAX ON INCOME ACTUALLY EARNED BY THE HUSBAND.  AND IN HELVERING
V. CLIFFORD, 309 U.S. 331, 334-335, WE HELD THAT THE PURPOSE OF 26
U.S.C. SEC. 22(A) TO TAX ALL INCOME AGAINST THE PERSON WHO CONTROLLED
ITS DISTRIBUTION COULD NOT BE FRUSTRATED BY FAMILY GROUP ARRANGEMENTS,
EVEN THOUGH THE DISTRIBUTION ARRANGEMENTS WERE VALID FOR STATE LAW
PURPOSES.  THE STATUTES OF CONGRESS DESIGNED TO TAX INCOME ACTUALLY
EARNED BECAUSE OF THE CAPITAL AND EFFORTS OF EACH INDIVIDUAL MEMBER OF
A JOINT ENTERPRISE ARE NOT TO BE FRUSTRATED BY STATE LAWS WHICH FOR
STATE PURPOSES PRESCRIBE THE RELATIONS OF THE MEMBERS TO EACH OTHER AND
TO OUTSIDERS.  CF. BURK-WAGGONER ASSN. V. HOPKINS, 269 U.S. 110, 114. 

RESPONDENT CONTENDS THAT THE TAX COURT'S HOLDING THAT HE IS TAXABLE
FOR THE PROFITS FROM THE PARTNERSHIP IS CONTRARY TO A PRINCIPLE LONG
RECOGNIZED BY THIS COURT THAT "THE LEGAL RIGHT OF A TAXPAYER TO
DECREASE THE AMOUNT OF WHAT OTHERWISE WOULD BE HIS TAXES, OR ALTOGETHER
AVOID THEM, BY MEANS WHICH THE LAW PERMITS, CANNOT BE DOUBTED." 
GREGORY V. HELVERING, 293 U.S. 465, 469.  WE DO NOT REJECT THAT
PRINCIPLE.  IT WOULD CLEARLY APPLY, FOR EXAMPLE, IN A SITUATION WHERE A
MEMBER OF A PARTNERSHIP, IN ORDER TO KEEP FROM PAYING FUTURE TAXES ON
PARTNERSHIP PROFITS AND IN ORDER TO GET INTO A LOWER INCOME TAX
BRACKET, SELLS HIS INTEREST TO A STRANGER, RELINQUISHING ALL CONTROL OF
THE BUSINESS.  BUT THE SITUATION IS DIFFERENT WHERE THE TAXPAYER DRAWS
A PAPER PURPORTING TO SELL HIS PARTNERSHIP INTEREST EVEN TO A STRANGER,
THOUGH ACTUALLY HE CONTINUES TO CONTROL THE BUSINESS TO THE EXTENT HE
HAD BEFORE THE "SALE" AND CHANNELS THE INCOME TO HIS WIFE.  THEN A
SHOWING THAT THE ARRANGEMENT WAS MADE FOR THE EXPRESS PURPOSE OF
REDUCING TAXES SIMPLY LENDS FURTHER SUPPORT TO THE INFERENCE THAT THE
HUSBAND STILL CONTROLS THE INCOME FROM HIS PARTNERSHIP INTEREST, THAT
NO PARTNERSHIP REALLY EXISTS AND THAT EARNINGS ARE REALLY HIS AND ARE
THEREFORE TAXABLE TO HIM AND NOT TO HIS WIFE.  THE ARRANGEMENT WE ARE
HERE CONSIDERING WAS OF THE TYPE WHERE PROOF OF A MOTIVE TO REDUCE
INCOME TAXES SIMPLY LENT FURTHER STRENGTH TO THE INFERENCE DRAWN BY THE
TAX COURT THAT THE WIFE WAS NOT REALLY A PARTNER.  SEE PAUL, SELECTED
STUDIES IN FEDERAL TAXATION, 2D SERIES, PP. 293-300.  TO RULE OTHERWISE
WOULD MEAN ORDERING THE TAX COURT TO SHUT ITS EYES TO THE REALITIES OF
TAX AVOIDANCE SCHEMES. 

RESPONDENT URGES FURTHER THAT THE TAX COURT ERRONEOUSLY CONCLUDED
THAT THE GIFT WAS INEFFECTIVE FOR TAX PURPOSES BECAUSE IT WAS
CONDITIONAL AND THEREFORE INCOMPLETE.  THE GOVERNMENT DEFENDS THE TAX
COURT'S CONCLUSION.  WE DO NOT FIND IT NECESSARY TO DECIDE THIS ISSUE. 
THE QUESTION HERE IS NOT SIMPLY WHO ACTUALLY OWNED A SHARE OF THE
CAPITAL ATTRIBUTED TO THE WIFE ON THE PARTNERSHIP BOOKS.  A PERSON MAY
BE TAXED ON PROFITS EARNED FROM PROPERTY, WHERE HE NEITHER OWNS NOR
CONTROLS IT.  LUCAS V. EARL, SUPRA.  FN7  THE ISSUE IS WHO EARNED THE
INCOME AND THAT ISSUE DEPENDS ON WHETHER THIS HUSBAND AND WIFE REALLY
INTENDED TO CARRY ON BUSINESS AS A PARTNERSHIP.  THOSE ISSUES CANNOT BE
DECIDED SIMPLY BY LOOKING AT A SINGLE STEP IN A COMPLICATED
TRANSACTION.  TO DECIDE WHO WORKED FOR, OTHERWISE CREATED OR CONTROLLED
THE INCOME, ALL STEPS IN THE PROCESS OF EARNING THE PROFITS MUST BE
TAKEN INTO CONSIDERATION.  SEE COMMISSIONER V. COURT HOLDING CO., 324
U.S. 331, 334.  OF COURSE, THE QUESTION OF LEGAL OWNERSHIP OF THE
CAPITAL PURPORTEDLY CONTRIBUTED BY A WIFE WILL FREQUENTLY THROW LIGHT
ON THE BROADER QUESTION OF WHETHER AN ALLEGED PARTNERSHIP IS REAL OR
PRETENDED.  BUT HERE THE TAX COURT'S FINDINGS WERE SUPPORTED BY A
SUFFICIENT NUMBER OF OTHER FACTORS IN THE TRANSACTION, SO THAT WE NEED
NOT DECIDE WHETHER ITS HOLDING AS TO THE COMPLETENESS OF THE GIFT WAS
CORRECT.  CF. HELVERING V. HALLOCK, 309 U.S. 106, 117, 118; BURNET V.
WELLS, 289 U.S. 670, 677. 

THERE CAN BE NO QUESTION THAT A WIFE AND A HUSBAND MAY, UNDER CERTAIN
CIRCUMSTANCES, BECOME PARTNERS FOR TAX, AS FOR OTHER, PURPOSES.  IF SHE
EITHER INVESTS CAPITAL ORIGINATING WITH HER OR SUBSTANTIALLY
CONTRIBUTES TO THE CONTROL AND MANAGEMENT OF THE BUSINESS, OR OTHERWISE
PERFORMS VITAL ADDITIONAL SERVICES, OR DOES ALL OF THESE THINGS SHE MAY
BE A PARTNER AS CONTEMPLATED BY 26 U.S.C. SECS. 181, 182.  THE TAX
COURT HAS RECOGNIZED THAT UNDER SUCH CIRCUMSTANCES THE INCOME BELONGS
TO THE WIFE.  FN8 A WIFE MAY BECOME A GENERAL OR A LIMITED PARTNER WITH
HER HUSBAND.  BUT WHEN SHE DOES NOT SHARE IN THE MANAGEMENT AND CONTROL
OF THE BUSINESS, CONTRIBUTES NO VITAL ADDITIONAL SERVICE, AND WHERE THE
HUSBAND PURPORTS IN SOME WAY TO HAVE GIVEN HER A PARTNERSHIP INTEREST,
THE TAX COURT MAY PROPERLY TAKE THESE CIRCUMSTANCES INTO CONSIDERATION
IN DETERMINING WHETHER THE PARTNERSHIP IS REAL WITHIN THE MEANING OF
THE FEDERAL REVENUE LAWS. 

IT IS THE COMMAND OF THE TAXPAYER OVER THE INCOME WHICH IS THE
CONCERN OF THE TAX LAWS.  HARRISON V. SCHAFFNER, 312 U.S. 579, 581,
582.  AND INCOME EARNED BY ONE PERSON IS TAXABLE AS HIS, IF GIVEN TO
ANOTHER FOR THE DONOR'S SATISFACTION.  HELVERING V. HORST, 311 U.S.
112, 119.  IT IS FOR THIS REASON, AMONG OTHERS, THAT WE SAID IN
HELVERING V. CLIFFORD, SUPRA, 335, THAT TRANSACTIONS BETWEEN HUSBAND
AND WIFE CALCULATED TO REDUCE FAMILY TAXES SHOULD ALWAYS BE SUBJECTED
TO SPECIAL SCRUTINY.  FOR IF UNDER CIRCUMSTANCES SUCH AS THOSE NOW
BEFORE US, THE END RESULT OF THE CREATION OF A HUSBAND-WIFE
PARTNERSHIP, THOUGH VALID UNDER STATE LAWS, IS THAT INCOME PRODUCED BY
THE HUSBAND'S EFFORTS CONTINUES TO BE USED FOR THE SAME BUSINESS AND
FAMILY PURPOSES AS BEFORE THE PARTNERSHIP, FAILURE TO TAX IT AS THE
HUSBAND'S INCOME WOULD FRUSTRATE THE PURPOSE OF 26 U.S.C. SEC. 22(A). 
BY THE SIMPLE EXPEDIENT OF DRAWING UP PAPERS, SINGLE TAX EARNINGS
CANNOT BE DIVIDED INTO TWO TAX UNITS AND SURTAXES CANNOT BE THUS
AVOIDED. 

JUDGED BY THE ACTUAL RESULT ACHIEVED, THE TAX COURT WAS JUSTIFIED IN
FINDING THAT THE PARTNERSHIP HERE BROUGHT ABOUT NO REAL CHANGE IN THE
ECONOMIC RELATION OF THE HUSBAND AND HIS WIFE TO THE INCOME IN
QUESTION.  BEFORE THE PARTNERSHIP THE HUSBAND MANAGED, CONTROLLED, AND
DID A GOOD DEAL OF THE WORK INVOLVED IN RUNNING THE BUSINESS, AND HE
HAD FUNDS AT HIS DISPOSAL WHICH HE EITHER USED IN THE BUSINESS OR
EXPENDED FOR FAMILY PURPOSES.  THE WIFE DID NOT CONTRIBUTE HER SERVICES
TO THE BUSINESS AND RECEIVED MONEY FROM HER HUSBAND FOR HER OWN AND
FAMILY EXPENSES.  AFTER THE PARTNERSHIP WAS FORMED THE HUSBAND
CONTINUED TO CONTROL AND MANAGE THE BUSINESS EXACTLY AS HE HAD BEFORE. 
THE WIFE AGAIN TOOK NO PART IN THE MANAGEMENT OR OPERATION OF THE
BUSINESS.  IF IT BE SAID THAT AS A LIMITED PARTNER SHE COULD NOT SHARE
IN THE MANAGEMENT WITHOUT BECOMING A GENERAL PARTNER THE RESULT IS THE
SAME.  NO CAPITAL NOT AVAILABLE FOR USE IN THE BUSINESS BEFORE WAS
BROUGHT INTO THE BUSINESS AS A RESULT OF THE FORMATION OF THE
PARTNERSHIP.  AND THE WIFE DREW ON INCOME WHICH THE PARTNERSHIP BOOKS
ATTRIBUTED TO HER ONLY FOR PURPOSES OF BUYING AND PAYING FOR THE TYPE
OF THINGS SHE HAD BOUGHT FOR HERSELF, HOME AND FAMILY BEFORE THE
PARTNERSHIP WAS FORMED.  CONSEQUENTLY THE RESULT OF THE PARTNERSHIP WAS
A MERE PAPER REALLOCATION OF INCOME AMONG THE FAMILY MEMBERS.  THE
ACTUALITIES OF THEIR RELATION TO THE INCOME DID NOT CHANGE.  THERE WAS,
THUS, MORE THAN AMPLE EVIDENCE TO SUPPORT THE TAX COURT'S FINDING THAT
NO GENUINE UNION FOR PARTNERSHIP BUSINESS PURPOSES WAS EVER INTENDED
AND THAT THE HUSBAND EARNED THE INCOME.  WHETHER THE EVIDENCE WOULD
HAVE SUPPORTED A DIFFERENT FINDING BY THE TAX COURT IS A QUESTION NOT
HERE PRESENTED.  REVERSED. 

FN1  EARP V. JONES, 131 F.2D 292(C.C.A.10TH); MEAD V. COMMISSIONER,
131 F.2D 323(C.C.A.5TH); ARGO V. COMMISSIONER, 150 F.2D 67(C.C.A.5TH);
LORENZ V. COMMISSIONER, 148 F.2D 527(C.C.A.6TH). 

FN2 SEE CASES COLLECTED IN PAUL, PARTNERSHIPS IN TAX AVOIDANCE, 13
GEO. WASH. L. REV. 121. 

FN3  FOR ABOUT SIX MONTHS IMMEDIATELY FOLLOWING INCORPORATION THE
RESPONDENT OWNED ONLY 425 SHARES. 

FN4  SINCE THE COMMISSIONER HAD DETERMINED THAT THE WIFE WAS NOT
REALLY A PARTNER, THE BURDEN RESTED UPON THE RESPONDENT TO PRODUCE
SUFFICIENT EVIDENCE TO CONVINCE THE TAX COURT THAT THE COMMISSIONER'S
DETERMINATION WAS WRONG.  WELCH V. HELVERING, 290 U.S. 111;
COMMISSIONER V. HEININGER, 320 U.S. 467, 475. 

FN5  WARD V. THOMPSON, 22 HOW.  330, 333, 334; MEEHAN V. VALENTINE,
145 U.S. 611, 618. 

FN6  WHAT WOULD BE THE EFFECT FOR TAX PURPOSES SHOULD TAXPAYERS AFTER
HOLDING THEMSELVES OUT AS A PARTNERSHIP LATER CHALLENGE THE EXISTENCE
OF THE PARTNERSHIP, IS A QUESTION NOT HERE PRESENTED.  SEE HIGGINS V.
SMITH, 308 U.S. 473, 477. 

FN7  UNDER SOME CIRCUMSTANCES INCOME HAS BEEN HELD TAXABLE TO A
PERSON EVEN WHEN HE DOES NOT OWN OR CONTROL IT.  UNITED STATES V.
JOLIET & CHICAGO R. CO., 315 U.S. 44, 46. 

FN8  SEE E.G. CROFT V. COMMISSIONER, (1944 P-H T.C. MEM. DEC.
P44,330) T.C. NO. 1432, DECIDED OCTOBER 11, 1944. 

THE CHIEF JUSTICE AND MR. JUSTICE REED DISSENT FOR THE REASONS STATED
IN THEIR DISSENTING OPINION IN LUSTHAUS V. COMMISSIONER, POST, P. 297. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I AGREE WITH THE RESULT AND WITH THE COURT'S VIEW THAT THE EVIDENCE
WAS AMPLY SUFFICIENT TO SUSTAIN THE TAX COURT'S FINDINGS AND
CONCLUSIONS IN THIS CASE AND IN LUSTHAUS V. COMMISSIONER, POST, P.
293.  CANDOR FORCES ME TO ADD, HOWEVER, THAT IN MY JUDGMENT THE
DECISIONS' EFFECT IS TO RULE THAT IN SITUATIONS OF THIS CHARACTER THE
FORMATION OF A LIMITED PARTNERSHIP UNDER STATE LAW BETWEEN HUSBAND AND
WIFE, WITH THE LATTER AS THE LIMITED PARTNER, FOLLOWING IMMEDIATELY
UPON THE HUSBAND'S DONATION TO THE WIFE OF A SHARE IN THE ASSETS OF THE
BUSINESS PREVIOUSLY AND AFTERWARDS CONDUCTED BY HIM AND CONDITIONED
UPON HER LEAVING THE ASSETS IN THE BUSINESS, AS A MATTER OF FEDERAL TAX
LAW DOES NOT ACCOMPLISH THE FORMATION OF A PARTNERSHIP SUFFICIENT TO
RELIEVE THE HUSBAND OF TAX LIABILITY FOR THE INCOME DERIVED AFTER THE
TRANSFER FROM USE IN THE BUSINESS OF THE SHARE THUS DONATED TO THE
WIFE.  IN OTHER WORDS, I THINK THAT AS A MATTER OF LAW THE TAXPAYERS IN
THESE CASES WERE LIABLE FOR THE TAXES ASSESSED AGAINST THEM, INCLUDING
THE DEFICIENCY ASSESSMENTS; AND, THEREFORE, IN MY OPINION THE TAX COURT
IS NOT FREE IN THESE OR SUBSTANTIALLY SIMILAR CIRCUMSTANCES TO DRAW
EITHER THE CONTRARY CONCLUSION OR OPPOSING ONES.  WHILE IT IS NOT
STRICTLY NECESSARY TO EXPRESS THIS OPINION IN THESE CASES IN VIEW OF
THE TAX COURT'S CONSISTENT CONCLUSIONS OF LIABILITY, IT IS
INCONCEIVABLE TO ME THAT THE TWO CASES, CONSISTENTLY WITH THE FEDERAL
TAX LAW, COULD BE DECIDED THE OTHER WAY OR WITH DIFFERENT OUTCOMES ON
THE FACTS PRESENTED.  BEING OF THIS OPINION, I CONSIDER THE FAILURE TO
STATE IT COULD ONLY TEND TO PERPETUATE A SOURCE OF POSSIBLE CONFUSION
FOR THE FUTURE. 
..END :























LUSTHAUS V. COMMISSIONER, 327 U.S. 293 


NO. 263.  ARGUED JANUARY 10, 1946.  - DECIDED FEBRUARY 25, 1946.  - 149
F.2D 232, AFFIRMED. 


PETITIONER OWNED AND OPERATED A RETAIL FURNITURE BUSINESS WITH TWO
STORES.  HIS WIFE HELPED IN THE STORES, WHEN NEEDED, WITHOUT
COMPENSATION.  SHE OWNED PROPERTY VALUED AT $50,000 OR MORE.  FINDING
HIMSELF CONFRONTED WITH PROSPECTS OF LARGE PROFITS AND CORRESPONDINGLY
LARGE INCOME TAXES, PETITIONER, IN CONSULTATION WITH HIS ACCOUNTANT AND
ATTORNEY, WORKED OUT A PLAN FOR A HUSBAND-WIFE PARTNERSHIP.  THE WIFE
HAD LITTLE TO DO WITH THE TRANSACTION AND TESTIFIED THAT "ON THE ADVICE
OF COUNSEL I DID WHAT HE TOLD ME TO DO."  PETITIONER EXECUTED A BILL OF
SALE BY WHICH HE PURPORTED TO SELL HIS WIFE A HALF INTEREST IN THE
BUSINESS FOR $105,253.81, RECEIVING IN RETURN A CHECK FOR $50,253.81
AND ELEVEN NOTES OF $5,000 EACH.  PETITIONER BORROWED $25,000 FROM A
BANK; GAVE HIS WIFE A CHECK FOR $50,000, ON WHICH HE PAID A GIFT TAX;
AND, UPON RECEIPT OF HER CHECK, REPAID THE $25,000 BANK LOAN.  THE WIFE
EXECUTED A PARTNERSHIP AGREEMENT UNDERTAKING TO SHARE PROFITS AND
LOSSES WITH HER HUSBAND.  A CERTIFICATE AUTHORIZING THE CONDUCT OF THE
BUSINESS AS A PARTNERSHIP WAS OBTAINED FROM THE STATE.  THE WIFE
CONTINUED TO HELP OUT IN THE STORES WHEN SHE WAS NEEDED; BUT PETITIONER
RETAINED FULL CONTROL OF THE MANAGEMENT OF THE BUSINESS, THE WIFE WAS
NOT PERMITTED TO DRAW CHECKS ON THE BUSINESS BANK ACCOUNT, AND NEITHER
PARTNER WAS PERMITTED TO SELL OR ASSIGN HIS INTEREST IN THE PARTNERSHIP
WITHOUT THE OTHER'S CONSENT.  AT THE CLOSE OF EACH YEAR, THE PROFITS
WERE CREDITED ON THE BOOKS TO PETITIONER AND HIS WIFE EQUALLY; BUT NO
WITHDRAWALS WERE PERMITTED UNLESS BOTH PARTNERS AGREED.  THE HUSBAND
DREW NO SALARY.  DURING THE TAX YEAR INVOLVED, THE NET PROFITS EXCEEDED
$80,000, FROM WHICH RESPONDENT WITHDREW ABOUT $4,500 AND HIS WIFE ONLY
$59.61.  THE FOLLOWING YEAR THEY WITHDREW APPROXIMATELY $16,000 AND
$19,000, RESPECTIVELY, THE WIFE'S WITHDRAWAL BEING USED LARGELY TO PAY
OFF SOME OF THE $5,000 NOTES GIVEN AS PART OF HER CONTRIBUTION TO THE
PARTNERSHIP CAPITAL.  HELD:  THE EVIDENCE WAS SUFFICIENT TO SUPPORT A
FINDING BY THE TAX COURT THAT THERE WAS NO GENUINE PARTNERSHIP WITHIN
THE MEANING OF 26 U.S.C. SECS. 181, 182; AND A DEFICIENCY ASSESSMENT
AGAINST PETITIONER FOR EARNINGS REPORTED AS HIS WIFE'S INCOME IS
SUSTAINED, FOR THE REASONS STATED IN COMMISSIONER V. TOWER, ANTE, P.
280.  P. 297. 

LUSTHAUS V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

THE COMMISSIONER OF INTERNAL REVENUE MADE A DEFICIENCY ASSESSMENT
AGAINST PETITIONER FOR PURPORTED PARTNERSHIP EARNINGS OF A HUSBAND-WIFE
PARTNERSHIP REPORTED IN HIS WIFE'S RETURN AND NOT REPORTED BY
PETITIONER.  THE TAX COURT SUSTAINED THE COMMISSIONER ON THE GROUND
THAT THE WIFE WAS NOT A GENUINE PARTNER.  3 T.C. 540.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  149 F.2D 232.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 702.  AFFIRMED, P. 297. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS THE SAME AS IN COMMISSIONER V. TOWER,
ANTE, P. 280.  HERE, TOO, THE COMMISSIONER MADE A DEFICIENCY ASSESSMENT
AGAINST THE HUSBAND, PETITIONER, FOR PURPORTED PARTNERSHIP EARNINGS
REPORTED IN HIS WIFE'S RETURN FOR 1940 AND NOT REPORTED BY THE
PETITIONER.  THE COMMISSIONER'S ACTION WAS BASED ON A DETERMINATION,
MADE AFTER AN INVESTIGATION, THAT FOR INCOME TAX PURPOSES NO
PARTNERSHIP EXISTED BETWEEN THE PETITIONER AND HIS WIFE.  THE FOLLOWING
ARE THE CONTROLLING FACTS:  PETITIONER HAS OPERATED A FURNITURE
BUSINESS SINCE 1918 AND SINCE 1933 HE HAS CONDUCTED A RETAIL FURNITURE
BUSINESS AT TWO STORES LOCATED IN UNIONTOWN, PENNSYLVANIA.  HIS WIFE
HELPED OUT AT THE STORES WHENEVER SHE WAS NEEDED WITHOUT RECEIVING
COMPENSATION.  IN 1939 THE PETITIONER FOUND HIMSELF CONFRONTED WITH THE
PROSPECT OF LARGE PROFITS AND CORRESPONDINGLY LARGE INCOME TAXES.  THIS
CAUSED HIM CONCERN AND HE CALLED IN HIS ACCOUNTANT AND ATTORNEY. 
TOGETHER THEY WORKED OUT A PLAN FOR THE SUPPOSED HUSBAND-WIFE
PARTNERSHIP HERE INVOLVED.  THE WIFE HAD LITTLE TO DO WITH THE WHOLE
TRANSACTION, AND TESTIFIED WHEN ASKED ABOUT THE DETAILS THAT "ON THE
ADVICE OF COUNSEL I DID WHAT HE TOLD ME TO DO."  IN ACCORDANCE WITH THE
PLAN THE PETITIONER EXECUTED A BILL OF SALE TO HIS WIFE BY WHICH HE
PURPORTED TO SELL HER AN UNDIVIDED HALF INTEREST IN THE BUSINESS FOR
$105,253.81.  AT THE SAME TIME THE WIFE EXECUTED A PARTNERSHIP
AGREEMENT UNDER WHICH SHE UNDERTOOK TO SHARE PROFITS AND LOSSES WITH
HER HUSBAND.  THE WIFE PAID FOR HER UNDIVIDED HALF INTEREST IN THE
FOLLOWING WAY.  PETITIONER BORROWED $25,000 FROM A BANK AND GAVE HIS
WIFE A CHECK FOR $50,000 DRAWN AGAINST THE AMOUNT BORROWED AND FURTHER
FUNDS WHICH HE HAD WITHDRAWN FROM THE BUSINESS AND DEPOSITED WITH THE
BANK FOR THAT PURPOSE.  THE WIFE THEN GAVE PETITIONER HER CHECK FOR
$50,253.81 AND THE PETITIONER REPAID THE $25,000 TO THE BANK. 
PETITIONER'S WIFE ALSO GAVE HIM ELEVEN NOTES IN THE AMOUNT OF $5,000
EACH, WHICH ACCORDING TO AN UNDERSTANDING WERE TO BE PAID FROM THE
PROFITS TO BE ASCRIBED TO THE WIFE UNDER THE PARTNERSHIP AGREEMENT. 
FN1  PETITIONER REPORTED IN A 1940 GIFT TAX RETURN THAT HE HAD MADE A
GIFT OF $50,000 TO HIS WIFE.  PENNSYLVANIA ISSUED PETITIONER AND HIS
WIFE A CERTIFICATE AUTHORIZING THEM TO CARRY ON THE BUSINESS AS A
PARTNERSHIP.  WHEN THE PARTNERSHIP WAS FORMED PETITIONER'S WIFE OWNED
HER HOME, VALUED AT TWENTY-FIVE TO THIRTY THOUSAND DOLLARS AND
SECURITIES WORTH UP TO TWENTY-FIVE THOUSAND DOLLARS. 

AFTER THE PARTNERSHIP WAS FORMED THE WIFE CONTINUED TO HELP OUT IN
THE STORES WHENEVER SHE WAS NEEDED JUST AS SHE HAD ALWAYS DONE.  BUT
PETITIONER RETAINED FULL CONTROL OF THE MANAGEMENT OF THE BUSINESS. 
HIS WIFE WAS NOT PERMITTED TO DRAW CHECKS ON THE BUSINESS BANK
ACCOUNT.  DURING THE TAXABLE YEAR HERE INVOLVED THE HUSBAND FILED
SOCIAL SECURITY TAX RETURNS AS OWNER OF THE BUSINESS.  NEITHER PARTNER
COULD SELL OR ASSIGN THE INTEREST ASCRIBED BY THE PARTNERSHIP AGREEMENT
WITHOUT THE OTHER'S WRITTEN CONSENT.  THOUGH, AT THE CLOSE OF EACH YEAR
THE PROFITS OF THE BUSINESS WERE CREDITED ON THE BOOKS TO PETITIONER
AND HIS WIFE EQUALLY, NO WITHDRAWALS WERE TO BE MADE UNDER THE
PARTNERSHIP AGREEMENT UNLESS BOTH PARTNERS AGREED.  THE HUSBAND DREW NO
SALARY.  DURING 1940, WHICH IS THE TAX YEAR HERE INVOLVED, THE BUSINESS
NET PROFITS WERE IN EXCESS OF $80,000, FROM WHICH THE RESPONDENT
WITHDREW ABOUT $4,500 AND HIS WIFE WITHDREW ONLY $59.61.  THE FOLLOWING
YEAR THEY WITHDREW APPROXIMATELY $16,000 AND $19,900 RESPECTIVELY, THE
WIFE'S WITHDRAWAL BEING USED LARGELY TO PAY BACK SOME OF THE $5,000
NOTES GIVEN AS PART OF HER ALLEGED CONTRIBUTION TO THE PARTNERSHIP
CAPITAL.  ON THIS EVIDENCE THE TAX COURT FOUND THAT THE WIFE ACQUIRED
NO SEPARATE INTEREST IN THE PARTNERSHIP BY TURNING BACK TO HER HUSBAND
THE $50,000 WHICH HE HAD GIVEN HER CONDITIONED UPON HER TURNING IT BACK
TO HIM; AND THAT THE PARTNERSHIP ARRANGEMENTS WERE MERELY SUPERFICIAL,
AND DID NOT RESULT IN CHANGING THE HUSBAND'S ECONOMIC INTEREST IN THE
BUSINESS.  IT CONCLUDED THAT WHILE THE PARTNERSHIP WAS "CLOTHED IN THE
OUTER GARMENT OF LEGAL RESPECTABILITY" ITS EXISTENCE COULD NOT BE
RECOGNIZED FOR INCOME TAX PURPOSES.  3 T.C. 540.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  149 F.2D 232.  THE PETITIONER CHALLENGES THE TAX
COURT'S FINDING THAT THE WIFE WAS NOT A GENUINE PARTNER ON THE GROUND
THAT THE EVIDENCE DID NOT SUPPORT IT.  WE HOLD THAT IT DID. 

FOR THE REASONS SET OUT IN OUR OPINION IN COMMISSIONER V. TOWER,
ANTE, P. 280, THE DECISION OF THE CIRCUIT COURT OF APPEALS IS
AFFIRMED.  AFFIRMED. 

FN1  THE TAX COURT FOUND AS FOLLOWS ON THIS PHASE: 

"HE (THE HUSBAND) WOULD MAKE HER A 'GIFT' OF A PART OF THE PURCHASE
PRICE AND TAKE HER PROMISSORY NOTES FOR THE BALANCE.  SHE COULD PAY OFF
THE NOTES FROM HER SHARE OF HER PROFITS OF THE BUSINESS." 

A PART OF THE TESTIMONY SUPPORTING THIS FINDING WAS GIVEN BY THE
HUSBAND AS FOLLOWS: 

"Q.  AND WHAT WERE THE TERMS OF THAT ORAL AGREEMENT? 

"A.  JUST AS I STATED, THAT SHE (THE WIFE) WOULD PAY ME $50,000 IN
CASH AND THE BALANCE TO BE PAID IN NOTES. 

"Q.  PAYABLE YEARLY? 

"A.  PAYABLE YEARLY IN NOTES. 

"Q.  IN THE AMOUNT OF $5,000 EACH FOR 11 YEARS? 

"A.  YES. 

"Q. WHERE WAS SHE TO GET THE AMOUNT TO BE PAID OFF YEARLY? 

"A.  FROM THE PROFITS OF THE BUSINESS." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, DISSENTING. 

AS THE COURT CONSIDERS, AND AS WE DO, THE QUESTION IN THIS CASE IS
THE SAME AS THAT IN COMMISSIONER V. TOWER, ANTE, P. 280, AND AS THE
COURT RELIES TO SUPPORT ITS CONCLUSION UPON THE REASONS SET OUT IN THE
TOWER OPINION, WE SHALL STATE THE GROUNDS FOR OUR DISSENT IN THIS CASE
RATHER THAN THE TOWER CASE.  WE CHOOSE THIS CERTIORARI FOR OUR
EXPLANATION BECAUSE THE ISSUE STANDS OUT MORE BOLDLY IN THE LIGHT OF
THE FACTS BEFORE AND FINDINGS OF THE TAX COURT. 

A.L. LUSTHAUS, AS AN INDIVIDUAL PROPRIETOR, HAD OPERATED A FURNITURE
BUSINESS IN UNIONTOWN, PENNSYLVANIA, FOR A NUMBER OF YEARS.  IN 1939 A
REALIZATION OF EXISTING AND PROSPECTIVE FEDERAL INCOME TAX BURDENS
CAUSED HIM TO CAST ABOUT FOR A LEGAL MEANS OF LESSENING THE TAX.  SUCH
METHOD OF TAX AVOIDANCE HAS NOT HERETOFORE BEEN CONSIDERED ILLEGAL;
AND, APROPOS OF THIS RULE, THIS COURT SAYS TODAY IN THE TOWER OPINION,
"WE DO NOT REJECT THAT PRINCIPLE."  SEE GREGORY V. HELVERING, 293 U.S.
465, 469, AND CASES CITED; BULLEN V. WISCONSIN, 240 U.S. 625, 630-31. 

THE STATEMENT IN THE COURT'S OPINION ADEQUATELY COVERS THE FACTS. 
BUT IT SHOULD NOT BE INFERRED FROM THE COURT'S STATEMENT THAT THE NOTES
GIVEN WERE "ACCORDING TO AN UNDERSTANDING  ...  TO BE PAID FROM THE
PROFITS TO BE ASCRIBED TO THE WIFE UNDER THE PARTNERSHIP AGREEMENT,"
THAT PAYMENT OF THE NOTES WAS SO LIMITED.  THE NOTES WERE UNCONDITIONAL
PROMISES TO PAY.  THE PAYMENT OF THEM FROM PROFITS WAS ONLY A HOPE. 

IT IS ESSENTIAL, TOO, WE THINK, TO NOTE THAT IN THESE PARTNERSHIP
CASES THE TAX DOCTRINE OF LUCAS V. EARL, 281 U.S. 111, 115, AS TO THE
ATTRIBUTION OF INCOME FRUIT TO A DIFFERENT TREE FROM THAT ON WHICH IT
GREW IS INAPPLICABLE.  HERE, SO FAR AS THE INCOME IS ATTRIBUTABLE TO
THE PROPERTY GIVEN, THE GIFT CANNOT BE TAKEN AS A GIFT OF INCOME BEFORE
IT WAS EARNED OR PAYABLE, AS IN LUCAS V. EARL, 281 U.S. 111; HELVERING
V. HORST, 311 U.S. 112; HELVERING V. EUBANK, 311 U.S. 122, WHERE THE
INCOME WAS HELD TAXABLE TO THE DONOR.  IT WAS A GIFT OF PROPERTY WHICH
THEREAFTER PRODUCED INCOME WHICH WAS TAXABLE TO THE DONEE, AS IN BLAIR
V. COMMISSIONER, 300 U.S. 5; CF. HELVERING V. HORST, SUPRA, 119. 

FROM FIRST TO LAST, THE RECORD SHOWS A CONTROVERSY AS TO WHETHER THE
BUSINESS IS A VALID PARTNERSHIP UNDER THE TAX LAWS.  THE ISSUE NEVER
HAS BEEN WHETHER MR. LUSTHAUS FAILED TO RETURN HIS PERSONAL EARNINGS
FOR TAXATION.  THERE WAS NO EFFORT ON THE PART OF THE COMMISSIONER TO
TAX HIM UPON A PART OR ALL OF THE PARTNERSHIP EARNINGS AS PERSONAL
COMPENSATION WHICH HE HAD EARNED INDIVIDUALLY BUT ASSIGNED TO THE
PARTNERSHIP FOR COLLECTION OR WHICH HE HAD EARNED INDIVIDUALLY BUT
CAUSED TO BE PAID TO A FICTITIOUS PARTNERSHIP.  WHILE THE TAX COURT
POINTED OUT THAT THE INCOME RESULTED IN PART FROM PETITIONER'S
MANAGERIAL ABILITY, IT ALSO RECOGNIZED THAT THE CAPITAL CONTRIBUTED TO
THE EARNINGS.  3 T.C. AT 543.  THE TAX COURT THOUGHT THAT THE WIFE
ACQUIRED "NO SEPARATE INTEREST OF HER OWN BY TURNING BACK TO PETITIONER
THE $50,000" WHICH HAD BEEN GIVEN HER CONDITIONALLY AND FOR THAT
SPECIFIC PURPOSE.  WHY IT THOUGHT THE WIFE DID NOT BECOME AN OWNER IN
THE PARTNERSHIP BUSINESS, THE TAX COURT DOES NOT EXPLAIN.  THE COURT'S
OPINION DOES NOT TURN UPON ANY ISSUE WHICH IS CONNECTED WITH THE VALUE
OF MR. LUSTHAUS' SERVICES AND WE MENTION IT ONLY FOR THE PURPOSE OF
FOCUSING ATTENTION UPON WHAT SEEMS TO US THE COURT'S ERROR.  IF THE
CASE WAS IN THE POSTURE OF A TAX CLAIM AGAINST MR. LUSTHAUS BASED UPON
HIS FAILURE TO ACCOUNT FOR INCOME ACTUALLY EARNED BY HIM BUT PAID TO
HIS WIFE, AN ENTIRELY DIFFERENT ISSUE WOULD BE PRESENTED. 

SINCE THE QUESTIONS OF TAXABILITY IN THIS CASE TURN ON THE WIFE'S
BONA FIDE OWNERSHIP OF A SHARE IN THE PARTNERSHIP, WE CANNOT SAY THAT
FEDERAL LAW IS CONTROLLING.  EVEN IF IT WERE, WE ARE POINTED TO NO
FEDERAL LAW OF PARTNERSHIP WHICH PRECLUDES THE WIFE'S BECOMING A
PARTNER WITH HER HUSBAND AND MAKING HER CONTRIBUTION TO CAPITAL FROM
MONEY OR PROPERTY GIVEN TO HER BY HER HUSBAND, AS WELL AS FROM ANY
OTHER SOURCE.  FN1 

THE COURT'S OPINION DOES NOT HOLD THAT INCOME OF HUSBAND AND WIFE
MUST BE TAXED AS ONE.  CONGRESS HAS REFUSED TO DO THIS ALTHOUGH URGED
TO DO SO.  FN2  IT DOES NOT HOLD THAT A WIFE MAY NOT BE A PARTNER OF
HER HUSBAND UNDER SOME CIRCUMSTANCES.  IT IS SAID SHE MAY BE "IF SHE
EITHER INVESTS CAPITAL ORIGINATING WITH HER OR SUBSTANTIALLY
CONTRIBUTES TO THE CONTROL AND MANAGEMENT OF THE BUSINESS, OR OTHERWISE
PERFORMS VITAL ADDITIONAL SERVICES, OR DOES ALL OF THESE THINGS  ... 26
U.S.C. SECS. 181, 182."  COMMISSIONER V. TOWER, ANTE, P. 290.  BUT AS
WE READ THE COURT'S OPINION, IT DECIDES THAT A WIFE MAY NOT BECOME A
PARTNER OF HER HUSBAND FOR FEDERAL INCOME TAX PURPOSES, IF THE HUSBAND
GIVES TO HER, DIRECTLY OR INDIRECTLY, THE CAPITAL TO FINANCE HER PART
OF THE PARTNERSHIP INVESTMENT UNLESS SHE ALSO SUBSTANTIALLY
PARTICIPATES IN THE MANAGEMENT OF THE BUSINESS OR OTHERWISE PERFORMS
VITAL ADDITIONAL SERVICES.  THIS CONCLUSION WE THINK IS ERRONEOUS. 
THERE IS NO PROVISION OR PRINCIPLE OF THE INTERNAL REVENUE LAWS WHICH
PREVENTS A HUSBAND FROM MAKING A GIFT OF PROPERTY TO HIS WIFE, EVEN
THOUGH HIS MOTIVE IS TO REDUCE HIS TAXES, OR WHICH REQUIRES THE INCOME
THEREAFTER TO BE TAXED TO THE HUSBAND IF THE GIFT IS GENUINE AND NOT
PRETENDED AND HE HAS RETAINED NO POWER TO DEPRIVE THE WIFE OF THE
PROPERTY OR ITS INCOME. 

WE HAVE POINTED OUT THAT THE AMOUNT OF EARNINGS TO BE ALLOCATED TO
PETITIONER'S MANAGERIAL ABILITIES IS NOT IN ISSUE.  THERE IS NO
QUESTION BUT THAT THE GIFT OF $50,000 WAS COMPLETE, EITHER IN ITSELF OR
JOINED WITH THE SUBSEQUENT TRANSFER OF A HALF INTEREST IN THE
PARTNERSHIP ASSETS BY PAYMENT OF THAT $50,000 PLUS THE ADDITIONAL CASH
AND NOTES.  ON TERMINATION OF THE PARTNERSHIP, HALF OF THE ASSETS WOULD
GO TO HER.  ON HER DEATH, HER INTEREST IN THE PARTNERSHIP WOULD GO TO
HER HEIRS OR LEGATEES.  THE VALUE OF HER INDIVIDUAL PROPERTY - $45,000
TO $55,000 - WOULD INCREASE THE FINANCIAL STRENGTH OF THE PARTNERSHIP
AS IT WOULD BECOME SUBJECT TO CLAIMS AGAINST THE PARTNERSHIP.  UNIFORM
PARTNERSHIP ACT (PENNA.), TITLE 59, SEC. 37, PURDON'S PENNA.  STAT.;
CF. AITON V. SLATER, 298 MICH. 469, 474, 299 N.W. 149.  HER HUSBAND
PAID HIS FEDERAL GIFT TAX ON THE $50,000.  THE FACT THAT THE
PARTNERSHIP "BROUGHT ABOUT NO REAL CHANGE IN THE ECONOMIC RELATION OF
THE HUSBAND AND HIS WIFE TO THE INCOME IN QUESTION" CANNOT AFFECT
TAXABILITY ANY MORE IN THE PRESENT THAN IN ANY OTHER MARITAL SITUATION
WHERE INDIVIDUAL INCOMES EXIST WITHIN THE INTIMATE FAMILY CIRCLE.  WHEN
A STOCKHOLDER IN A CORPORATION GIVES STOCK TO HIS WIFE, THE FAMILY'S
GROSS INCOME REMAINS THE SAME.  IT IS ONLY SURTAXES WHICH ARE REDUCED. 

CONGRESS TAXES PARTNERSHIP INCOME TO THE PARTNERS DISTRIBUTIVELY. 
FN3  IT HAS DEFINED PARTNERSHIP TO THE EXTENT SHOWN BELOW.  FN4 THE
TERM "PARTNERSHIP" AS USED IN SEC. 182, INTERNAL REVENUE CODE, MEANS
ORDINARY PARTNERSHIPS.  BURK-WAGGONER ASSN. V. HOPKINS, 269 U.S. 110,
113.  WHEN TWO OR MORE PEOPLE CONTRIBUTE PROPERTY OR SERVICES TO AN
ENTERPRISE AND AGREE TO SHARE THE PROCEEDS, THEY ARE PARTNERS.  FN5
THE COURT SAYS, TOWER OPINION, ANTE, PP. 286-287, THAT "WHEN THE
EXISTENCE OF AN ALLEGED PARTNERSHIP ARRANGEMENT IS CHALLENGED BY
OUTSIDERS, THE QUESTION ARISES WHETHER THE PARTNERS REALLY AND TRULY
INTENDED TO JOIN TOGETHER FOR THE PURPOSE OF CARRYING ON BUSINESS AND
SHARING IN THE PROFITS OR LOSSES OR BOTH."  THE SUGGESTION SEEMS TO BE
THAT AN INFERENCE OF INTENTION ENTIRELY CONTRARY TO ALL THE PRIMARY
FACTS MAY BE DEDUCED AT WILL AND WITHOUT CHALLENGE BY THE TAX COURT. 
PEOPLE INTEND THE CONSEQUENCES OF THEIR ACTS.  WHEN ALL THE NECESSARY
ELEMENTS OF A VALID PARTNERSHIP EXIST AND NO EVIDENCE IS PRODUCED WHICH
POINTS THE OTHER WAY, AN INTENTION TO BE PARTNERS MUST FOLLOW. 
LINDLEY, PARTNERSHIP (10TH ED.), 44.  THIS SITUATION EXISTS IN THIS AND
THE TOWER CASE.  THE PURPOSE TO REDUCE TAXES ON FAMILY INCOME CERTAINLY
IS NOT EVIDENCE OF INTENTION NOT TO FORM A PARTNERSHIP. 

THE WIVES CONTRIBUTED PROPERTY IF THE GIFTS OF MONEY FOR INVESTMENT
IN THE PARTNERSHIPS WERE VALID.  THE COURT TREATS THE VALIDITY OF THE
GIFT IN THE TOWER OPINION, ANTE, P. 289, AS IMMATERIAL.  IN THIS, THE
LUSTHAUS CASE, THERE IS NO QUESTION MADE BY THE TAX COURT AS TO THE
VALIDITY OF THE GIFT.  SINCE THE REVENUE CODE RECOGNIZES THE POWER OF A
TAXPAYER TO MAKE GIFTS OF HIS PROPERTY ON PAYMENT OF A GIFT TAX WHERE
DUE, I.R.C., 1000 ET SEQ., SUCH A TRANSFER IS VALID IF REAL AND
COMPLETE.  THERE WAS NO EVIDENCE IN EITHER THE TOWER OR THIS CASE THAT
THE FACT CONDITIONS FOR A COMPLETED GIFT WERE NOT SATISFIED OR THAT A
GENUINE GIFT WAS NOT INTENDED, OR THAT THE HUSBAND IN FACT OR IN LAW
RETAINED ANY RIGHT OR POWER TO DEPRIVE THE WIFE OF THE PROPERTY GIVEN
TO HER OR THE INCOME FROM IT.  PROPERTY WAS TRANSFERRED ABSOLUTELY AND
BEYOND RECALL WITHOUT CONSIDERATION FROM THE HUSBAND TO THE WIFE.  THAT
IS A GIFT AS EFFECTIVE BETWEEN HUSBAND AND WIFE AS BETWEEN STRANGERS. 
FN6  SHE DID NOT HOLD IN TRUST FOR HER HUSBAND. 

THE HUSBAND WAS THE MANAGING PARTNER BUT HAD NO CONTROL OTHERWISE
OVER THE DISTRIBUTION OF ASSETS ON DISSOLUTION OR OF WITHHOLDING HER
SHARE OF THE EARNINGS WHEN DISTRIBUTED.  BEFORE DISTRIBUTION THEY WERE
HER EARNINGS HELD SUBJECT TO HER RIGHT TO AN ACCOUNTING AND TAXABLE TO
HER UNDER THE REVENUE LAWS.  THIS DISTINGUISHES THE CASE FROM THE SHORT
TERM TRUST OF HELVERING V. CLIFFORD, 309 U.S. 331.  MANAGEMENT OF A
BUSINESS WHICH INVOLVES ONLY THE RISK OF THE CAPITAL OF ANOTHER IS NOT
THE CONTROL TO WHICH THE CLIFFORD CASE REFERS. 

TO US THE EVIDENCE SHOWS, WITHOUT ANY CONTRADICTION, THAT IN
CONSUMMATION OF THE HUSBAND'S GIFT TO THE WIFE A VALID PARTNERSHIP WAS
CREATED TO WHICH THE FEDERAL TAX ACTS ARE APPLICABLE.  THERE IS NO
FINDING AND NO EVIDENCE THAT THE TRANSACTION WAS PRETENDED OR A SHAM,
OR THAT THE HUSBAND IN FACT OR IN LAW RETAINED ANY POWER TO DEPRIVE THE
WIFE OF ANY PART OF HER CONTRIBUTION TO THE CAPITAL OR HER SHARE OF
INCOME DERIVED FROM IT.  TWO RIGHT STEPS DO NOT MAKE A WRONG ONE.  FROM
THESE FACTS THE INTENTION TO FORM A PARTNERSHIP MUST BE INFERRED.  UPON
THIS RECORD THE TAX ADVANTAGE TO THE HUSBAND RESULTING FROM HIS GIFT OF
INCOME-PRODUCING PROPERTY IS LAWFUL BECAUSE THE GIFT WAS LAWFUL AND
THEREFORE EFFECTIVE TO BESTOW ON THE WIFE THE INCOME THEREAFTER DERIVED
FROM PROPERTY WHICH WAS HER OWN. 

THE JUDGMENT SHOULD BE REVERSED. 

FN1  OF COURSE, FEDERAL TAX PROVISIONS ARE NOT SUBJECT TO STATE LAW. 
UNITED STATES V. PELZER, 312 U.S. 399, 402-3.  AS RIGHTS UNDER
PARTNERSHIP ARRANGEMENTS ARE SO ESSENTIALLY LOCAL, CONGRESS BY
SELECTING THE RECEIPT OF INCOME AS THE TAXABLE INCIDENT MAY HAVE
INTENDED TO LEAVE THE DETERMINATION OF ITS CHARACTER AS PARTNERSHIP OR
INDIVIDUAL TO STATE LAW.  "STATE LAW CREATES LEGAL INTERESTS AND
RIGHTS.  THE FEDERAL REVENUE ACTS DESIGNATE WHAT INTERESTS OR RIGHTS,
SO CREATED, SHALL BE TAXED."  MORGAN V. COMMISSIONER, 309 U.S. 78, 80;
HEINER V. MELLON, 304 U.S. 271, 279.  SEE BLAIR V. COMMISSIONER, 300
U.S. 5, 9; CROOKS V. HARRELSON, 282 U.S. 55; UTERHART V. UNITED STATES,
240 U.S. 598, 603. 

IN LUCAS V. EARL, 281 U.S. 111, THE VALIDITY OF THE CONTRACT TO
TRANSFER SUMS EARNED WAS NOT SIGNIFICANT TO THE INQUIRY AS TO WHO
EARNED THE COMPENSATION. 

FN2  REVENUE BILL OF 1941, H.R. 5417, AS INTRODUCED, 77TH CONG., 1ST
SESS., SEC. 111; H. REP. NO. 1040, 77TH CONG., 1ST SESS., P. 10; 87
CONG. REC. 6731-32.  SEE MANDATORY JOINT RETURNS, JOINT COMMITTEE ON
INTERNAL REVENUE TAXATION, U.S. GOV. PRINTING OFFICE, 1941.  IT IS AN
OLD PROBLEM.  STATEMENT, SECY.  OF TREAS., TAX AVOIDANCE, 1933, WAYS &
MEANS COMMITTEE. 

FN3  26 U.S.C. SEC. 182.  "TAX OF PARTNERS.  IN COMPUTING THE NET
INCOME OF EACH PARTNER, HE SHALL INCLUDE, WHETHER OR NOT DISTRIBUTION
IS MADE TO HIM - 

"(A)  AS PART OF HIS GAINS AND LOSSES FROM SALES OR EXCHANGES OF
CAPITAL ASSETS HELD FOR NOT MORE THAN 6 MONTHS, HIS DISTRIBUTIVE SHARE
OF THE GAINS AND LOSSES OF THE PARTNERSHIP FROM SALES OR EXCHANGES OF
CAPITAL ASSETS HELD FOR NOT MORE THAN 6 MONTHS. 

"(B)  AS PART OF HIS GAINS AND LOSSES FROM SALES OR EXCHANGES OF
CAPITAL ASSETS HELD FOR MORE THAN 6 MONTHS, HIS DISTRIBUTIVE SHARE OF
THE GAINS AND LOSSES OF THE PARTNERSHIP FROM SALES OR EXCHANGES OF
CAPITAL ASSETS HELD FOR MORE THAN 6 MONTHS. 

"(C)  HIS DISTRIBUTIVE SHARE OF THE ORDINARY NET INCOME OR THE
ORDINARY NET LOSS OF THE PARTNERSHIP, COMPUTED AS PROVIDED IN SECTION
183(B)." 

FN4  26 U.S.C. SEC. 3797.  "DEFINITIONS.  (A) WHEN USED IN THIS
TITLE, WHERE NOT OTHERWISE DISTINCTLY EXPRESSED OR MANIFESTLY
INCOMPATIBLE WITH THE INTENT THEREOF - 

     .         .         .  .         . 

"(2)  PARTNERSHIP AND PARTNER.  THE TERM 'PARTNERSHIP' INCLUDES A
SYNDICATE, GROUP, POOL, JOINT VENTURE, OR OTHER UNINCORPORATED
ORGANIZATION, THROUGH OR BY MEANS OF WHICH ANY BUSINESS, FINANCIAL
OPERATION, OR VENTURE IS CARRIED ON, AND WHICH IS NOT, WITHIN THE
MEANING OF THIS TITLE, A TRUST OR ESTATE OR A CORPORATION; AND THE TERM
'PARTNER' INCLUDES A MEMBER IN SUCH A SYNDICATE, GROUP, POOL, JOINT
VENTURE, OR ORGANIZATION." 

FN5  CAMPBELL V. NORTHWEST ECKINGTON CO., 229 U.S. 561, 580; KARRICK
V. HANNAMAN, 168 U.S. 328, 334; MEEHAN V. VALENTINE, 145 U.S. 611, 618;
BERTHOLD V. GOLDSMITH, 24 HOW.  536, 541; WARD V. THOMPSON, 22 HOW. 
330, 334. 

MICH. STAT. ANNO.  (1937), CHAP. 191, TITLE 20, SEC. 20.6.  "SEC. 
6.  (1)  A PARTNERSHIP IS AN ASSOCIATION OF TWO (2) OR MORE PERSONS TO
CARRY ON AS CO-OWNERS A BUSINESS FOR PROFIT; ..." 

FN6  BURNET V. GUGGENHEIM, 288 U.S. 280, 286; HELVERING V. NEW YORK
TRUST CO., 292 U.S. 455, 462; BOGARDUS V. COMMISSIONER, 302 U.S. 34,
MAJORITY'S AND MINORITY'S DEFINITION; SMITH V. SHAUGHNESSY, 318 U.S.
176; HELVERING V. AMERICAN DENTAL CO., 318 U.S. 322, 330. 

THE CHIEF JUSTICE JOINS IN THIS DISSENT. 
..END :











DUNCAN V. KAHANAMOKU, 327 U.S. 304 


ARGUED DECEMBER 7, 1945.  - DECIDED FEBRUARY 25, 1946.  - 146 F.2D 576,
REVERSED. 


1.  SECTION 67 OF THE HAWAIIAN ORGANIC ACT, 31 STAT. 141, 153,
AUTHORIZING THE TERRITORIAL GOVERNOR, IN CASE OF REBELLION OR INVASION,
OR IMMINENT DANGER THEREOF, WHEN THE PUBLIC SAFETY REQUIRES IT, TO
SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS OR "PLACE THE
TERRITORY  ... UNDER MARTIAL LAW," DID NOT GIVE THE ARMED FORCES,
DURING A PERIOD OF MARTIAL LAW, POWER TO SUPPLANT ALL CIVILIAN LAWS AND
TO SUBSTITUTE MILITARY FOR JUDICIAL TRIALS OF CIVILIANS NOT CHARGED
WITH VIOLATIONS OF THE LAW OF WAR, IN TERRITORY OF THE UNITED STATES
NOT RECENTLY REGAINED FROM AN ENEMY, AT A TIME WHEN THE DANGERS
APPREHENDED BY THE MILITARY ARE NOT SUFFICIENT TO CAUSE THEM TO REQUIRE
CIVILIANS TO EVACUATE THE AREA AND IT IS NOT IMPOSSIBLE FOR THE
CIVILIAN GOVERNMENT AND THE COURTS TO FUNCTION.  PP. 313, 324. 

(A)  ALTHOUGH PART OF THE LANGUAGE OF SEC. 67 OF THE ORGANIC ACT IS
IDENTICAL WITH A PART OF THE LANGUAGE OF THE ORIGINAL CONSTITUTION OF
HAWAII, CONGRESS DID NOT INTEND TO ADOPT THE DECISION OF THE SUPREME
COURT OF HAWAII IN IN RE KALANIANAOLE, 10 HAWAII 29, SUSTAINING
MILITARY TRIALS OF CIVILIANS IN HAWAII WITHOUT ADEQUATE COURT REVIEW
DURING PERIODS OF INSURRECTION.  P. 316. 

(B)  WHEN THE ORGANIC ACT IS READ AS A WHOLE AND IN THE LIGHT OF ITS
LEGISLATIVE HISTORY, IT IS CLEAR THAT CONGRESS INTENDED THAT CIVILIANS
IN HAWAII SHOULD BE ENTITLED TO CONSTITUTIONAL PROTECTION, INCLUDING
THE GUARANTEE OF A FAIR TRIAL, TO THE SAME EXTENT AS THOSE WHO LIVE IN
ANY OTHER PART OF OUR COUNTRY.  PP. 316-319. 

(C)  OUR SYSTEM OF GOVERNMENT IS THE ANTITHESIS OF TOTAL MILITARY
RULE AND ITS FOUNDERS ARE NOT LIKELY TO HAVE CONTEMPLATED COMPLETE
MILITARY DOMINANCE WITHIN THE LIMITS OF A TERRITORY MADE A PART OF THIS
COUNTRY AND NOT RECENTLY TAKEN FROM AN ENEMY.  P. 322. 

(D)  WHEN CONGRESS PASSED THE ORGANIC ACT AND AUTHORIZED THE
ESTABLISHMENT OF "MARTIAL LAW" IT HAD IN MIND, AND DID NOT WISH TO
EXCEED, THE BOUNDARIES BETWEEN MILITARY AND CIVILIAN POWER, IN WHICH
OUR PEOPLE HAVE ALWAYS BELIEVED, WHICH RESPONSIBLE MILITARY AND
EXECUTIVE OFFICERS HAD HEEDED, AND WHICH HAD BECOME PART OF OUR
POLITICAL PHILOSOPHY AND INSTITUTIONS.  PP. 319-324. 

(E)  THE PHRASE "MARTIAL LAW," AS EMPLOYED IN THAT ACT, WHILE
INTENDED TO AUTHORIZE THE MILITARY TO ACT VIGOROUSLY FOR THE
MAINTENANCE OF AN ORDERLY CIVIL GOVERNMENT AND FOR THE DEFENSE OF THE
ISLANDS AGAINST ACTUAL OR THREATENED REBELLION OR INVASION, WAS NOT
INTENDED TO AUTHORIZE THE SUPPLANTING OF COURTS BY MILITARY TRIBUNALS. 
PP. 319-324. 

2.  PETITIONERS, TWO CIVILIANS WHO WERE UNLAWFULLY TRIED, CONVICTED
AND IMPRISONED BY MILITARY TRIBUNALS IN HAWAII DURING A PERIOD OF
MARTIAL LAW WHEN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS HAD BEEN
SUSPENDED, ARE ENTITLED TO THEIR FREEDOM ON WRITS OF HABEAS CORPUS - AT
LEAST AFTER THE PRIVILEGE OF THE WRIT HAD BEEN RESTORED.  PP. 312, N.
5, 324. 

DUNCAN V. KAHANAMOKU, SHERIFF. 

NO. 14.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT* . 

*TOGETHER WITH NO. 15, WHITE V. STEER, PROVOST MARSHAL, ON CERTIORARI
TO THE SAME COURT, ARGUED AND DECIDED ON THE SAME DATES. 

NO. 14.  PETITIONER, A CIVILIAN SHIPFITTER EMPLOYED IN THE NAVY YARD
AT HONOLULU, WAS ARRESTED BY MILITARY AUTHORITIES AND TRIED AND
SENTENCED TO IMPRISONMENT BY A MILITARY TRIBUNAL FOR ASSAULTING TWO
MARINE SENTRIES ON DUTY AT THE NAVY YARD IN VIOLATION OF A MILITARY
ORDER MORE THAN TWO YEARS AFTER THE ATTACK ON PEARL HARBOR.  AT THAT
TIME, SCHOOLS, BARS AND MOTION PICTURE THEATRES HAD BEEN REOPENED AND
THE COURTS HAD BEEN AUTHORIZED TO EXERCISE THEIR NORMAL FUNCTIONS, WITH
CERTAIN EXCEPTIONS, ONE BEING THAT ONLY MILITARY TRIBUNALS WERE
PERMITTED TO TRY CRIMINAL PROSECUTIONS FOR VIOLATIONS OF MILITARY
ORDERS. 

NO. 15.  PETITIONER, A CIVILIAN STOCKBROKER IN HONOLULU HAVING NO
CONNECTION WITH THE ARMED FORCES, WAS ARRESTED BY MILITARY POLICE MORE
THAN EIGHT MONTHS AFTER THE ATTACK ON PEARL HARBOR ON A CHARGE OF
EMBEZZLING STOCK BELONGING TO ANOTHER CIVILIAN IN VIOLATION OF THE LAWS
OF HAWAII.  HE WAS TRIED, CONVICTED AND SENTENCED TO IMPRISONMENT BY A
MILITARY TRIBUNAL AT A TIME WHEN THE COURTS WERE OPEN AND FUNCTIONING
TO A LIMITED EXTENT "AS AGENTS OF THE MILITARY GOVERNOR." 

BOTH PETITIONED THE DISTRICT COURT FOR WRITS OF HABEAS CORPUS,
CHALLENGING THE VALIDITY OF THEIR TRIALS AND CONVICTIONS BY MILITARY
TRIBUNALS UNDER A STATE OF "MARTIAL LAW" WHICH HAD BEEN DECLARED ON THE
DAY OF THE ATTACK ON PEARL HARBOR.  AFTER SEPARATE TRIALS, THE DISTRICT
COURT FOUND THAT THE COURTS HAD ALWAYS BEEN ABLE TO FUNCTION, BUT FOR
MILITARY ORDERS CLOSING THEM, AND THAT THERE WAS NO MILITARY NECESSITY
FOR THE TRIAL OF PETITIONERS BY MILITARY TRIBUNALS RATHER THAN BY
REGULAR COURTS.  IT HELD THE TRIALS VOID AND ORDERED THE RELEASE OF
PETITIONERS.  THE CIRCUIT COURT OF APPEALS REVERSED.  146 F.2D 476. 
THIS COURT GRANTED CERTIORARI.  324 U.S. 833.  REVERSED, P. 324. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS IN THESE CASES WERE SENTENCED TO PRISON BY MILITARY
TRIBUNALS IN HAWAII.  BOTH ARE CIVILIANS.  THE QUESTION BEFORE US IS
WHETHER THE MILITARY TRIBUNALS HAD POWER TO DO THIS.  THE UNITED STATES
DISTRICT COURT FOR HAWAII IN HABEAS CORPUS PROCEEDINGS HELD THAT THE
MILITARY TRIBUNALS HAD NO SUCH POWER AND ORDERED THAT THEY BE SET
FREE.  THE CIRCUIT COURT OF APPEALS REVERSED, AND ORDERED THAT THE
PETITIONERS BE RETURNED TO PRISON.  146 F.2D 576.  BOTH CASES THUS
INVOLVE THE RIGHTS OF INDIVIDUALS CHARGED WITH CRIME AND NOT CONNECTED
WITH THE ARMED FORCES TO HAVE THEIR GUILT OR INNOCENCE DETERMINED IN
COURTS OF LAW WHICH PROVIDE ESTABLISHED PROCEDURAL SAFEGUARDS, RATHER
THAN BY MILITARY TRIBUNALS WHICH FAIL TO AFFORD MANY OF THESE
SAFEGUARDS.  SINCE THESE JUDICIAL SAFEGUARDS ARE PRIZED PRIVILEGES OF
OUR SYSTEM OF GOVERNMENT WE GRANTED CERTIORARI. 

THE FOLLOWING EVENTS LED TO THE MILITARY TRIBUNALS' EXERCISE OF
JURISDICTION OVER THE PETITIONERS.  ON DECEMBER 7, 1941, IMMEDIATELY
FOLLOWING THE SURPRISE AIR ATTACK BY THE JAPANESE ON PEARL HARBOR, THE
GOVERNOR OF HAWAII BY PROCLAMATION UNDERTOOK TO SUSPEND THE PRIVILEGE
OF THE WRIT OF HABEAS CORPUS AND TO PLACE THE TERRITORY UNDER "MARTIAL
LAW."  SECTION 67 OF THE HAWAIIAN ORGANIC ACT, 31 STAT. 141, 153,  FN1
AUTHORIZES THE TERRITORIAL GOVERNOR TO TAKE THIS ACTION "IN CASE OF
REBELLION OR INVASION, OR IMMINENT DANGER THEREOF, WHEN THE PUBLIC
SAFETY REQUIRES IT ..."  HIS ACTION WAS TO REMAIN IN EFFECT ONLY "UNTIL
COMMUNICATION CAN BE HAD WITH THE PRESIDENT AND HIS DECISION THEREON
MADE KNOWN."  THE PRESIDENT APPROVED THE GOVERNOR'S ACTION ON DECEMBER
9TH.  FN2  THE GOVERNOR'S PROCLAMATION ALSO AUTHORIZED AND REQUESTED
THE COMMANDING GENERAL, "DURING THE  ... EMERGENCY AND UNTIL DANGER OF
INVASION IS REMOVED, TO EXERCISE ALL THE POWERS NORMALLY EXERCISE" BY
THE GOVERNOR AND BY THE "JUDICIAL OFFICERS AND EMPLOYEES OF THIS
TERRITORY." 

PURSUANT TO THIS AUTHORIZATION THE COMMANDING GENERAL IMMEDIATELY
PROCLAIMED HIMSELF MILITARY GOVERNOR AND UNDERTOOK THE DEFENSE OF THE
TERRITORY AND THE MAINTENANCE OF ORDER.  ON DECEMBER 8TH, BOTH CIVIL
AND CRIMINAL COURTS WERE FORBIDDEN TO SUMMON JURORS AND WITNESSES AND
TO TRY CASES.  THE COMMANDING GENERAL ESTABLISHED MILITARY TRIBUNALS TO
TAKE THE PLACE OF THE COURTS.  THESE WERE TO TRY CIVILIANS CHARGED WITH
VIOLATING THE LAWS OF THE UNITED STATES AND OF THE TERRITORY, AND
RULES, REGULATIONS, ORDERS OR POLICIES OF THE MILITARY GOVERNMENT. 
RULES OF EVIDENCE AND PROCEDURE OF COURTS OF LAW WERE NOT TO CONTROL
THE MILITARY TRIALS.  IN IMPOSING PENALTIES THE MILITARY TRIBUNALS WERE
TO BE "GUIDED BY, BUT NOT LIMITED TO THE PENALTIES AUTHORIZED BY THE
COURTS MARTIAL MANUAL, THE LAWS OF THE UNITED STATES, THE TERRITORY OF
HAWAII, THE DISTRICT OF COLUMBIA, AND THE CUSTOMS OF WAR IN LIKE
CASES."  THE RULE ANNOUNCED WAS SIMPLY THAT PUNISHMENT WAS TO BE
"COMMENSURATE WITH THE OFFENSE COMMITTED" AND THAT THE DEATH PENALTY
MIGHT BE IMPOSED "IN APPROPRIATE CASES."  THUS THE MILITARY AUTHORITIES
TOOK OVER THE GOVERNMENT OF HAWAII.  THEY COULD AND DID, BY SIMPLY
PROMULGATING ORDERS, GOVERN THE DAY TO DAY ACTIVITIES OF CIVILIANS WHO
LIVED, WORKED, OR WERE MERELY PASSING THROUGH THERE.  THE MILITARY
TRIBUNALS INTERPRETED THE VERY ORDERS PROMULGATED BY THE MILITARY
AUTHORITIES AND PROCEEDED TO PUNISH VIOLATORS.  THE SENTENCES IMPOSED
WERE NOT SUBJECT TO DIRECT APPELLATE COURT REVIEW, SINCE IT HAD LONG
BEEN ESTABLISHED THAT MILITARY TRIBUNALS ARE NOT PART OF OUR JUDICIAL
SYSTEM.  EX PARTE VALLANDIGHAM, 1 WALL.  243.  THE MILITARY UNDOUBTEDLY
ASSUMED THAT ITS RULE WAS NOT SUBJECT TO ANY JUDICIAL CONTROL WHATEVER,
FOR BY ORDERS ISSUED ON AUGUST 25, 1943, IT PROHIBITED EVEN ACCEPTING
OF A PETITION FOR WRIT OF HABEAS CORPUS BY A JUDGE OR JUDICIAL EMPLOYEE
OR THE FILING OF SUCH A PETITION BY A PRISONER OR HIS ATTORNEY. 
MILITARY TRIBUNALS COULD PUNISH VIOLATORS OF THESE ORDERS BY FINE,
IMPRISONMENT OR DEATH. 

WHITE, THE PETITIONER IN NO. 15, WAS A STOCKBROKER IN HONOLULU. 
NEITHER HE NOR HIS BUSINESS WAS CONNECTED WITH THE ARMED FORCES.  ON
AUGUST 20, 1942, MORE THAN EIGHT MONTHS AFTER THE PEARL HARBOR ATTACK,
THE MILITARY POLICE ARRESTED HIM.  THE CHARGE AGAINST HIM WAS
EMBEZZLING STOCK BELONGING TO ANOTHER CIVILIAN IN VIOLATION OF CHAPTER
183 OF THE REVISED LAWS OF HAWAII.  THOUGH BY THE TIME OF WHITE'S
ARREST THE COURTS WERE PERMITTED "AS AGENTS OF THE MILITARY GOVERNOR"
TO DISPOSE OF SOME NON-JURY CIVIL CASES, THEY WERE STILL FORBIDDEN TO
SUMMON JURORS AND TO EXERCISE CRIMINAL JURISDICTION.  ON AUGUST 22ND,
WHITE WAS BROUGHT BEFORE A MILITARY TRIBUNAL DESIGNATED AS A "PROVOST
COURT."  THE "COURT" ORALLY INFORMED HIM OF THE CHARGE.  HE OBJECTED TO
THE TRIBUNAL'S JURISDICTION BUT THE OBJECTION WAS OVERRULED.  HE
DEMANDED TO BE TRIED BY A JURY.  THIS REQUEST WAS DENIED.  HIS ATTORNEY
ASKED FOR ADDITIONAL TIME TO PREPARE THE CASE.  THIS WAS REFUSED.  ON
AUGUST 25TH HE WAS TRIED AND CONVICTED.  THE TRIBUNAL SENTENCED HIM TO
FIVE YEARS IMPRISONMENT.  LATER THE SENTENCE WAS REDUCED TO FOUR
YEARS. 

DUNCAN, THE PETITIONER IN NO. 14, WAS A CIVILIAN SHIPFITTER EMPLOYED
IN THE NAVY YARD AT HONOLULU.  ON FEBRUARY 24, 1944, MORE THAN TWO
YEARS AND TWO MONTHS AFTER THE PEARL HARBOR ATTACK, HE ENGAGED IN A
BRAWL WITH TWO ARMED MARINE SENTRIES AT THE YARD.  HE WAS ARRESTED BY
THE MILITARY AUTHORITIES.  BY THE TIME OF HIS ARREST THE MILITARY HAD
TO SOME EXTENT EASED THE STRINGENCY OF MILITARY RULE.  SCHOOLS, BARS
AND MOTION PICTURE THEATRES HAD BEEN REOPENED.  COURTS HAD BEEN
AUTHORIZED TO "EXERCISE THEIR NORMAL JURISDICTION."  THEY WERE ONCE
MORE SUMMONING JURORS AND WITNESSES AND CONDUCTING CRIMINAL TRIALS. 
THERE WERE IMPORTANT EXCEPTIONS, HOWEVER.  ONE OF THESE WAS THAT ONLY
MILITARY TRIBUNALS WERE TO TRY "CRIMINAL PROSECUTIONS FOR VIOLATIONS OF
MILITARY ORDERS."  FN3  AS THE RECORD SHOWS, THESE MILITARY ORDERS
STILL COVERED A WIDE RANGE OF DAY TO DAY CIVILIAN CONDUCT.  DUNCAN WAS
CHARGED WITH VIOLATING ONE OF THESE ORDERS, PARAGRAPH 8.01, TITLE 8, OF
GENERAL ORDER NO. 2, WHICH PROHIBITED ASSAULT ON MILITARY OR NAVAL
PERSONNEL WITH INTENT TO RESIST OR HINDER THEM IN THE DISCHARGE OF
THEIR DUTY.  HE WAS, THEREFORE, TRIED BY A MILITARY TRIBUNAL RATHER
THAN THE TERRITORIAL COURT, ALTHOUGH THE GENERAL LAWS OF HAWAII MADE
ASSAULT A CRIME.  REVISED L.H. 1935, CH. 166.  A CONVICTION FOLLOWED
AND DUNCAN WAS SENTENCED TO SIX MONTHS IMPRISONMENT. 

BOTH WHITE AND DUNCAN CHALLENGED THE POWER OF THE MILITARY TRIBUNALS
TO TRY THEM BY PETITIONS FOR WRITS OF HABEAS CORPUS FILED IN THE
DISTRICT COURT FOR HAWAII ON MARCH 14 AND APRIL 14, 1944,
RESPECTIVELY.  THEIR PETITIONS URGED BOTH STATUTORY AND CONSTITUTIONAL
GROUNDS.  THE COURT ISSUED ORDERS TO SHOW CAUSE.  RETURNS TO THESE
ORDERS CONTENDED THAT HAWAII HAD BECOME PART OF AN ACTIVE THEATRE OF
WAR CONSTANTLY THREATENED BY INVASION FROM WITHOUT; THAT THE WRIT OF
HABEAS CORPUS HAD THEREFORE PROPERLY BEEN SUSPENDED AND MARTIAL LAW HAD
VALIDLY BEEN ESTABLISHED IN ACCORDANCE WITH THE PROVISIONS OF THE
ORGANIC ACT; THAT CONSEQUENTLY THE DISTRICT COURT DID NOT HAVE
JURISDICTION TO ISSUE THE WRIT; AND THAT THE TRIALS OF PETITIONERS BY
MILITARY TRIBUNALS PURSUANT TO ORDERS BY THE MILITARY GOVERNOR ISSUED
BECAUSE OF MILITARY NECESSITY WERE VALID.  EACH PETITIONER FILED A
TRAVERSE TO THE RETURNS, WHICH TRAVERSE CHALLENGED AMONG OTHER THINGS
THE SUSPENSION OF HABEAS CORPUS, THE ESTABLISHMENT OF MARTIAL LAW AND
THE VALIDITY OF THE MILITARY GOVERNOR'S ORDERS, ASSERTING THAT SUCH
ACTION COULD NOT BE TAKEN EXCEPT WHEN REQUIRED BY MILITARY NECESSITY
DUE TO ACTUAL OR THREATENED INVASION, WHICH EVEN IF IT DID EXIST ON
DECEMBER 7, 1941, DID NOT EXIST WHEN THE PETITIONERS WERE TRIED; AND
THAT, WHATEVER THE NECESSITY FOR MARTIAL LAW, THERE WAS NO
JUSTIFICATION FOR TRYING THEM IN MILITARY TRIBUNALS RATHER THAN THE
REGULAR COURTS OF LAW.  THE DISTRICT COURT, AFTER SEPARATE TRIALS,
FOUND IN EACH CASE, AMONG OTHER THINGS, THAT THE COURTS HAD ALWAYS BEEN
ABLE TO FUNCTION BUT FOR THE MILITARY ORDERS CLOSING THEM, AND THAT
CONSEQUENTLY THERE WAS NO MILITARY NECESSITY FOR THE TRIAL OF
PETITIONERS BY MILITARY TRIBUNALS RATHER THAN REGULAR COURTS.  FN4  IT
ACCORDINGLY HELD THE TRIALS VOID AND ORDERED THE RELEASE OF THE
PETITIONERS. 

THE CIRCUIT COURT OF APPEALS, ASSUMING WITHOUT DECIDING THAT THE
DISTRICT COURT HAD JURISDICTION TO ENTERTAIN THE PETITIONS, HELD THE
MILITARY TRIALS VALID AND REVERSED THE RULING OF THE DISTRICT COURT. 
146 F.2D 576.  IT HELD THAT THE MILITARY ORDERS PROVIDING FOR MILITARY
TRIALS WERE FULLY AUTHORIZED BY SEC. 67 OF THE ORGANIC ACT AND THE
GOVERNOR'S ACTIONS TAKEN UNDER IT.  THE COURT RELIED ON THAT PART OF
THE SECTION WHICH, AS WE HAVE INDICATED, AUTHORIZES THE GOVERNOR WITH
THE APPROVAL OF THE PRESIDENT TO PROCLAIM "MARTIAL LAW" WHENEVER THE
PUBLIC SAFETY REQUIRES IT.  THE CIRCUIT COURT THOUGHT THAT THE TERM
"MARTIAL LAW" AS USED IN THE ACT DENOTES AMONG OTHER THINGS THE
ESTABLISHMENT OF A "TOTAL MILITARY GOVERNMENT" COMPLETELY DISPLACING OR
SUBORDINATING THE REGULAR COURTS, THAT THE DECISION OF THE EXECUTIVE AS
TO WHAT THE PUBLIC SAFETY REQUIRES MUST BE SUSTAINED SO LONG AS THAT
DECISION IS BASED ON REASONABLE GROUNDS AND THAT SUCH REASONABLE
GROUNDS DID EXIST. 

IN PRESENTING ITS ARGUMENT BEFORE THIS COURT THE GOVERNMENT FOR
REASONS SET OUT IN THE MARGIN FN5  ABANDONS ITS CONTENTION AS TO THE
SUSPENSION OF THE WRIT OF HABEAS CORPUS AND ADVANCES THE ARGUMENT
EMPLOYED BY THE CIRCUIT COURT FOR SUSTAINING THE TRIALS AND CONVICTIONS
OF THE PETITIONERS BY MILITARY TRIBUNALS.  THE PETITIONERS CONTEND THAT
"MARTIAL LAW" AS PROVIDED FOR BY SEC. 67 DID NOT AUTHORIZE THE MILITARY
TO TRY AND PUNISH CIVILIANS SUCH AS PETITIONERS AND URGE FURTHER THAT
IF SUCH AUTHORITY SHOULD BE INFERRED FROM THE ORGANIC ACT, IT WOULD BE
UNCONSTITUTIONAL.  WE NEED DECIDE THE CONSTITUTIONAL QUESTION ONLY IF
WE AGREE WITH THE GOVERNMENT THAT CONGRESS DID AUTHORIZE WHAT WAS DONE
HERE. 

DID THE ORGANIC ACT DURING THE PERIOD OF MARTIAL LAW GIVE THE ARMED
FORCES POWER TO SUPPLANT ALL CIVILIAN LAWS AND TO SUBSTITUTE MILITARY
FOR JUDICIAL TRIALS UNDER THE CONDITIONS THAT EXISTED IN HAWAII AT THE
TIME THESE PETITIONERS WERE TRIED?  THE RELEVANT CONDITIONS, FOR OUR
PURPOSES, WERE THE SAME WHEN BOTH PETITIONERS WERE TRIED.  THE ANSWER
TO THE QUESTION DEPENDS ON A CORRECT INTERPRETATION OF THE ACT.  BUT WE
NEED NOT CONSTRUE THE ACT, INSOFAR AS THE POWER OF THE MILITARY MIGHT
BE USED TO MEET OTHER AND DIFFERENT CONDITIONS AND SITUATIONS.  THE
BOUNDARIES OF THE SITUATION WITH REFERENCE TO WHICH WE DO INTERPRET THE
SCOPE OF THE ACT CAN BE MORE SHARPLY DEFINED BY STATING AT THIS POINT
SOME DIFFERENT CONDITIONS WHICH EITHER WOULD OR MIGHT CONCEIVABLY HAVE
AFFECTED TO A GREATER OR LESSER EXTENT THE SCOPE OF THE AUTHORIZED
MILITARY POWER.  WE NOTE FIRST THAT AT THE TIME THE ALLEGED OFFENSES
WERE COMMITTED THE DANGERS APPREHENDED BY THE MILITARY WERE NOT
SUFFICIENTLY IMMINENT TO CAUSE THEM TO REQUIRE CIVILIANS TO EVACUATE
THE AREA OR EVEN TO EVACUATE ANY OF THE BUILDINGS NECESSARY TO CARRY ON
THE BUSINESS OF THE COURTS.  IN FACT, THE BUILDINGS HAD LONG BEEN OPEN
AND ACTUALLY IN USE FOR CERTAIN KINDS OF TRIALS.  OUR QUESTION DOES NOT
INVOLVE THE WELL-ESTABLISHED POWER OF THE MILITARY TO EXERCISE
JURISDICTION OVER MEMBERS OF THE ARMED FORCES,  FN6  THOSE DIRECTLY
CONNECTED WITH SUCH FORCES,  FN7  OR ENEMY BELLIGERENTS, PRISONERS OF
WAR, OR OTHERS CHARGED WITH VIOLATING THE LAWS OF WAR.  FN8  WE ARE NOT
CONCERNED WITH THE RECOGNIZED POWER OF THE MILITARY TO TRY CIVILIANS IN
TRIBUNALS ESTABLISHED AS A PART OF A TEMPORARY MILITARY GOVERNMENT OVER
OCCUPIED ENEMY TERRITORY OR TERRITORY REGAINED FROM AN ENEMY WHERE
CIVILIAN GOVERNMENT CANNOT AND DOES NOT FUNCTION.  FN9  FOR HAWAII
SINCE ANNEXATION HAS BEEN HELD BY AND LOYAL TO THE UNITED STATES.  NOR
NEED WE HERE CONSIDER THE POWER OF THE MILITARY SIMPLY TO ARREST AND
DETAIN CIVILIANS INTERFERING WITH A NECESSARY MILITARY FUNCTION AT A
TIME OF TURBULENCE AND DANGER FROM INSURRECTION OR WAR.  FN10  AND
FINALLY, THERE WAS NO SPECIALIZED EFFORT OF THE MILITARY, HERE, TO
ENFORCE ORDERS WHICH RELATED ONLY TO MILITARY FUNCTIONS, SUCH AS, FOR
ILLUSTRATION, CURFEW RULES OR BLACKOUTS.  FOR THESE PETITIONERS WERE
TRIED BEFORE TRIBUNALS SET UP UNDER A MILITARY PROGRAM WHICH TOOK OVER
ALL GOVERNMENT AND SUPERSEDED ALL CIVIL LAWS AND COURTS.  IF THE
ORGANIC ACT, PROPERLY INTERPRETED, DID NOT GIVE THE ARMED FORCES THIS
AWESOME POWER, BOTH PETITIONERS ARE ENTITLED TO THEIR FREEDOM. 

    I. 

IN INTERPRETING THE ACT WE MUST FIRST LOOK TO ITS LANGUAGE.  SECTION
67 MAKES IT PLAIN THAT CONGRESS DID INTEND THE GOVERNOR OF HAWAII, WITH
THE APPROVAL OF THE PRESIDENT, TO INVOKE MILITARY AID UNDER CERTAIN
CIRCUMSTANCES.  BUT CONGRESS DID NOT SPECIFICALLY STATE TO WHAT EXTENT
THE ARMY COULD BE USED OR WHAT POWER IT COULD EXERCISE.  IT CERTAINLY
DID NOT EXPLICITLY DECLARE THAT THE GOVERNOR IN CONJUNCTION WITH THE
MILITARY COULD FOR DAYS, MONTHS OR YEARS CLOSE ALL THE COURTS AND
SUPPLANT THEM WITH MILITARY TRIBUNALS.  CF. COLEMAN V. TENNESSEE, 97
U.S. 509, 514.  IF A POWER THUS TO OBLITERATE THE JUDICIAL SYSTEM OF
HAWAII CAN BE FOUND AT ALL IN THE ORGANIC ACT, IT MUST BE INFERRED FROM
SEC. 67'S PROVISION FOR PLACING THE TERRITORY UNDER "MARTIAL LAW."  BUT
THE TERM "MARTIAL LAW" CARRIES NO PRECISE MEANING.  THE CONSTITUTION
DOES NOT REFER TO "MARTIAL LAW" AT ALL AND NO ACT OF CONGRESS HAS
DEFINED THE TERM.  IT HAS BEEN EMPLOYED IN VARIOUS WAYS BY DIFFERENT
PEOPLE AND AT DIFFERENT TIMES.  BY SOME IT HAS BEEN IDENTIFIED AS
"MILITARY LAW" LIMITED TO MEMBERS OF, AND THOSE CONNECTED WITH, THE
ARMED FORCES.  OTHERS HAVE SAID THAT THE TERM DOES NOT IMPLY A SYSTEM
OF ESTABLISHED RULES BUT DENOTES SIMPLY SOME KIND OF DAY TO DAY
EXPRESSION OF A GENERAL'S WILL DICTATED BY WHAT HE CONSIDERS THE
IMPERIOUS NECESSITY OF THE MOMENT.  SEE UNITED STATES V. DIEKELMAN, 92
U.S. 520, 526.  IN 1857 THE CONFUSION AS TO THE MEANING OF THE PHRASE
WAS SO GREAT THAT THE ATTORNEY GENERAL IN AN OFFICIAL OPINION HAD THIS
TO SAY ABOUT IT:  "THE COMMON LAW AUTHORITIES AND COMMENTATORS AFFORD
NO CLUE TO WHAT MARTIAL LAW, AS UNDERSTOOD IN ENGLAND, REALLY IS  ...
IN THIS COUNTRY IT IS STILL WORSE."  8 OP. ATTY. GEN. 365, 367, 368. 
WHAT WAS TRUE IN 1857 REMAINS TRUE TODAY.  FN11  THE LANGUAGE OF SEC.
67 THUS FAILS TO DEFINE ADEQUATELY THE SCOPE OF THE POWER GIVEN TO THE
MILITARY AND TO SHOW WHETHER THE ORGANIC ACT PROVIDES THAT COURTS OF
LAW BE SUPPLANTED BY MILITARY TRIBUNALS. 

            II. 

SINCE THE ACT'S LANGUAGE DOES NOT PROVIDE A SATISFACTORY ANSWER, WE
LOOK TO THE LEGISLATIVE HISTORY FOR POSSIBLE FURTHER AID IN
INTERPRETING THE TERM "MARTIAL LAW" AS USED IN THE STATUTE.  THE
GOVERNMENT CONTENDS THAT THE LEGISLATIVE HISTORY SHOWS THAT CONGRESS
INTENDED TO GIVE THE ARMED FORCES EXTRAORDINARILY BROAD POWERS TO TRY
CIVILIANS BEFORE MILITARY TRIBUNALS.  ITS ARGUMENT IS AS FOLLOWS:  THAT
PORTION OF THE LANGUAGE OF SEC. 67 WHICH PRESCRIBES THE PREREQUISITES
TO DECLARING MARTIAL LAW IS IDENTICAL WITH A PART OF THE LANGUAGE OF
THE ORIGINAL CONSTITUTION OF HAWAII.  BEFORE CONGRESS ENACTED THE
ORGANIC ACT THE SUPREME COURT OF HAWAII HAD CONSTRUED THAT LANGUAGE AS
GIVING THE HAWAIIAN PRESIDENT POWER TO AUTHORIZE MILITARY TRIBUNALS TO
TRY CIVILIANS CHARGED WITH CRIME WHENEVER THE PUBLIC SAFETY REQUIRED
IT.  IN RE KALANIANAOLE, 10 HAWAII 29.  WHEN CONGRESS PASSED THE
ORGANIC ACT IT SIMPLY ENACTED THE APPLICABLE LANGUAGE OF THE HAWAIIAN
CONSTITUTION AND WITH IT THE INTERPRETATION OF THAT LANGUAGE BY THE
HAWAIIAN SUPREME COURT. 

IN DISPOSING OF THIS ARGUMENT WE WISH TO POINT OUT AT THE OUTSET THAT
EVEN HAD CONGRESS INTENDED THE DECISION IN THE KALANIANAOLE CASE TO
BECOME PART OF THE ORGANIC ACT, THAT CASE DID NOT GO SO FAR AS TO
AUTHORIZE MILITARY TRIALS OF THE PETITIONERS FOR THESE REASONS.  THERE
THE DEFENDANTS WERE INSURRECTIONISTS TAKING PART IN THE VERY UPRISING
WHICH THE MILITARY WERE TO SUPPRESS, WHILE HERE THE PETITIONERS HAD NO
CONNECTION WITH ANY ORGANIZED RESISTANCE TO THE ARMED FORCES OR THE
ESTABLISHED GOVERNMENT.  IF, ON THE OTHER HAND, WE SHOULD TAKE THE
KALANIANAOLE CASE TO AUTHORIZE THE COMPLETE SUPPLANTING OF COURTS BY
MILITARY TRIBUNALS, WE ARE CERTAIN THAT CONGRESS DID NOT WISH TO MAKE
THAT CASE PART OF THE ORGANIC ACT.  FOR THAT CASE DID NOT MERELY UPHOLD
MILITARY TRIALS OF CIVILIANS BUT ALSO HELD THAT COURTS WERE TO
INTERFERE ONLY WHEN THERE WAS AN OBVIOUS ABUSE OF DISCRETION WHICH
RESULTED IN CRUEL AND INHUMAN PRACTICES OR THE ESTABLISHMENT OF
MILITARY RULE FOR THE PERSONAL GAIN OF THE PRESIDENT AND THE ARMED
FORCES.  BUT COURTS WERE NOT TO REVIEW WHETHER THE PRESIDENT'S ACTION,
NO MATTER HOW UNJUSTIFIABLE, WAS NECESSARY FOR THE PUBLIC SAFETY.  AS
WE SHALL INDICATE LATER, MILITARY TRIALS OF CIVILIANS CHARGED WITH
CRIME, ESPECIALLY WHEN NOT MADE SUBJECT TO JUDICIAL REVIEW, ARE SO
OBVIOUSLY CONTRARY TO OUR POLITICAL TRADITIONS AND OUR INSTITUTION OF
JURY TRIALS IN COURTS OF LAW, THAT THE TENUOUS CIRCUMSTANCE OFFERED BY
THE GOVERNMENT CAN HARDLY SUFFICE TO PERSUADE US THAT CONGRESS WAS
WILLING TO ENACT A HAWAIIAN SUPREME COURT DECISION PERMITTING SUCH A
RADICAL DEPARTURE FROM OUR STEADFAST BELIEFS.  FN12 

PARTLY IN ORDER TO MEET THIS OBJECTION THE GOVERNMENT FURTHER
CONTENDS THAT CONGRESS, IN ENACTING THE KALANIANAOLE CASE, NOT ONLY
AUTHORIZED MILITARY TRIALS OF CIVILIANS IN HAWAII, BUT ALSO COULD AND
INTENDED TO PROVIDE THAT "MARTIAL LAW" IN HAWAII SHOULD NOT BE LIMITED
BY THE UNITED STATES CONSTITUTION OR BY ESTABLISHED CONSTITUTIONAL
PRACTICE.  BUT WHEN THE ORGANIC ACT IS READ AS A WHOLE AND IN THE LIGHT
OF ITS LEGISLATIVE HISTORY IT BECOMES CLEAR THAT CONGRESS DID NOT
INTEND THE CONSTITUTION TO HAVE A LIMITED APPLICATION TO HAWAII.  ALONG
WITH SEC. 67 CONGRESS ENACTED SEC. 5 OF THE ORGANIC ACT WHICH PROVIDES
"THAT THE CONSTITUTION  ...  SHALL HAVE THE SAME FORCE AND EFFECT
WITHIN THE SAID TERRITORY AS ELSEWHERE IN THE UNITED STATES  ..."  31
STAT. 141.  EVEN WHEN HAWAII WAS FIRST ANNEXED CONGRESS HAD PROVIDED
THAT THE TERRITORY'S EXISTING LAWS SHOULD REMAIN IN EFFECT UNLESS
CONTRARY TO THE CONSTITUTION.  30 STAT. 750.  AND THE HOUSE COMMITTEE
REPORT IN EXPLAINING SEC. 5 OF THE ORGANIC ACT STATED:  "PROBABLY THE
SAME RESULT WOULD OBTAIN WITHOUT THIS PROVISION UNDER SECTION 1891,
CHAPTER 1, TITLE XXIII, OF THE REVISED STATUTES, BUT TO PREVENT
POSSIBLE QUESTION, THE SECTION IS INSERTED IN THE BILL."  FN13
CONGRESS THUS EXPRESSED A STRONG DESIRE TO APPLY THE CONSTITUTION
WITHOUT QUALIFICATION. 

IT FOLLOWS THAT CIVILIANS IN HAWAII ARE ENTITLED TO THE
CONSTITUTIONAL GUARANTEE OF A FAIR TRIAL TO THE SAME EXTENT AS THOSE
WHO LIVE IN ANY OTHER PART OF OUR COUNTRY.  WE ARE AWARE THAT
CONDITIONS PECULIAR TO HAWAII MIGHT IMPERATIVELY DEMAND EXTRAORDINARILY
SPEEDY AND EFFECTIVE MEASURES IN THE EVENT OF ACTUAL OR THREATENED
INVASION.  BUT THIS ALSO HOLDS TRUE FOR OTHER PARTS OF THE UNITED
STATES.  EXTRAORDINARY MEASURES IN HAWAII, HOWEVER NECESSARY, ARE NOT
SUPPORTABLE ON THE MISTAKEN PREMISE THAT HAWAIIAN INHABITANTS ARE LESS
ENTITLED TO CONSTITUTIONAL PROTECTION THAN OTHERS.  FOR HERE CONGRESS
DID NOT IN THE ORGANIC ACT EXERCISE WHATEVER POWER IT MIGHT HAVE HAD TO
LIMIT THE APPLICATION OF THE CONSTITUTION.  CF. HAWAII V. MANKICHI, 190
U.S. 197.  THE PEOPLE OF HAWAII ARE THEREFORE ENTITLED TO
CONSTITUTIONAL PROTECTION TO THE SAME EXTENT AS THE INHABITANTS OF THE
48 STATES.  AND CONGRESS DID NOT ENACT THE HAWAIIAN SUPREME COURT'S
DECISION IN THE KALANIANAOLE CASE AND THUS AUTHORIZE THE MILITARY
TRIALS OF PETITIONERS.  WHATEVER POWER THE ORGANIC ACT GAVE THE
HAWAIIAN MILITARY AUTHORITIES, SUCH POWER MUST THEREFORE BE CONSTRUED
IN THE SAME WAY AS A GRANT OF POWER TO TROOPS STATIONED IN ANY ONE OF
THE STATES. 

                                 III. 

SINCE BOTH THE LANGUAGE OF THE ORGANIC ACT AND ITS LEGISLATIVE
HISTORY FAIL TO INDICATE THAT THE SCOPE OF "MARTIAL LAW" IN HAWAII
INCLUDES THE SUPPLANTING OF COURTS BY MILITARY TRIBUNALS, WE MUST LOOK
TO OTHER SOURCES IN ORDER TO INTERPRET THAT TERM.  WE THINK THE ANSWER
MAY BE FOUND IN THE BIRTH, DEVELOPMENT AND GROWTH OF OUR GOVERNMENTAL
INSTITUTIONS UP TO THE TIME CONGRESS PASSED THE ORGANIC ACT.  HAVE THE
PRINCIPLES AND PRACTICES DEVELOPED DURING THE BIRTH AND GROWTH OF OUR
POLITICAL INSTITUTIONS BEEN SUCH AS TO PERSUADE US THAT CONGRESS
INTENDED THAT LOYAL CIVILIANS IN LOYAL TERRITORY SHOULD HAVE THEIR
DAILY CONDUCT GOVERNED BY MILITARY ORDERS SUBSTITUTED FOR CRIMINAL
LAWS, AND THAT SUCH CIVILIANS SHOULD BE TRIED AND PUNISHED BY MILITARY
TRIBUNALS?  LET US EXAMINE WHAT THOSE PRINCIPLES AND PRACTICES HAVE
BEEN, WITH RESPECT TO THE POSITION OF CIVILIAN GOVERNMENT AND THE
COURTS AND COMPARE THAT WITH THE STANDING OF MILITARY TRIBUNALS
THROUGHOUT OUR HISTORY. 

PEOPLE OF MANY AGES AND COUNTRIES HAVE FEARED AND UNFLINCHINGLY
OPPOSED THE KIND OF SUBORDINATION OF EXECUTIVE, LEGISLATIVE AND
JUDICIAL AUTHORITIES TO COMPLETE MILITARY RULE WHICH, ACCORDING TO THE
GOVERNMENT, CONGRESS HAS AUTHORIZED HERE.  IN THIS COUNTRY THAT FEAR
HAS BECOME PART OF OUR CULTURAL AND POLITICAL INSTITUTIONS.  THE STORY
OF THAT DEVELOPMENT IS WELL KNOWN AND WE SEE NO NEED TO RETELL IT ALL. 
BUT WE MIGHT MENTION A FEW PERTINENT INCIDENTS.  AS EARLY AS THE 17TH
CENTURY OUR BRITISH ANCESTORS TOOK POLITICAL ACTION AGAINST AGGRESSIVE
MILITARY RULE.  WHEN JAMES I AND CHARLES I AUTHORIZED MARTIAL LAW FOR
PURPOSES OF SPEEDILY PUNISHING ALL TYPES OF CRIMES COMMITTED BY
CIVILIANS THE PROTEST LED TO THE HISTORIC PETITION OF RIGHT  FN14
WHICH IN UNCOMPROMISING TERMS OBJECTED TO THIS ARBITRARY PROCEDURE AND
PRAYED THAT IT BE STOPPED AND NEVER REPEATED.  FN15  WHEN LATER THE
AMERICAN COLONIES DECLARED THEIR INDEPENDENCE ONE OF THE GRIEVANCES
LISTED BY JEFFERSON WAS THAT THE KING HAD ENDEAVORED TO RENDER THE
MILITARY SUPERIOR TO THE CIVIL POWER.  THE EXECUTIVE AND MILITARY
OFFICIALS WHO LATER FOUND IT NECESSARY TO UTILIZE THE ARMED FORCES TO
KEEP ORDER IN A YOUNG AND TURBULENT NATION, DID NOT LOSE SIGHT OF THE
PHILOSOPHY EMBODIED IN THE PETITION OF RIGHT AND THE DECLARATION OF
INDEPENDENCE, THAT EXISTING CIVILIAN GOVERNMENT AND ESPECIALLY THE
COURTS WERE NOT TO BE INTERFERED WITH BY THE EXERCISE OF MILITARY
POWER.  IN 1787, THE YEAR IN WHICH THE CONSTITUTION WAS FORMULATED, THE
GOVERNOR OF MASSACHUSETTS COLONY USED THE MILITIA TO COPE WITH SHAY'S
REBELLION.  IN HIS INSTRUCTIONS TO THE COMMANDER OF THE TROOPS THE
GOVERNOR LISTED THE "GREAT OBJECTS" OF THE MISSION.  THE TROOPS WERE TO
"PROTECT THE JUDICIAL COURTS  ...," "TO ASSIST THE CIVIL MAGISTRATES IN
EXECUTING THE LAWS  ...," AND TO "AID THEM IN APPREHENDING THE
DISTURBERS OF THE PUBLIC PEACE  ..."  THE COMMANDER WAS TO CONSIDER
HIMSELF "CONSTANTLY AS UNDER THE DIRECTION OF THE CIVIL OFFICER, SAVING
WHERE ANY ARMED FORCE SHALL APPEAR AND OPPOSE  ...  (HIS) MARCHING TO
EXECUTE THESE ORDERS."  FN16  PRESIDENT WASHINGTON'S INSTRUCTIONS TO
THE COMMANDER OF THE TROOPS SENT INTO PENNSYLVANIA TO SUPPRESS THE
WHISKEY REBELLION OF 1794 WERE TO THE SAME EFFECT.  THE TROOPS WERE TO
SEE TO IT THAT THE LAWS WERE ENFORCED AND WERE TO DELIVER THE LEADERS
OF ARMED INSURGENTS TO THE REGULAR COURTS FOR TRIAL.  THE PRESIDENT
ADMONISHED THE COMMANDING GENERAL "THAT THE JUDGE CAN NOT BE CONTROLLED
IN HIS FUNCTIONS  ..."  FN17  IN THE MANY INSTANCES OF THE USE OF
TROOPS TO CONTROL THE ACTIVITIES OF CIVILIANS THAT FOLLOWED, THE TROOPS
WERE GENERALLY AGAIN EMPLOYED MERELY TO AID AND NOT TO SUPPLANT THE
CIVILIAN AUTHORITIES.  FN18  THE LAST NOTEWORTHY INCIDENT BEFORE THE
ENACTMENT OF THE ORGANIC ACT WAS THE RIOTING THAT OCCURRED IN THE
SPRING OF 1899 AT THE COEUR D'ALENE MINES OF SHOSHONE COUNTY, IDAHO. 
THE PRESIDENT ORDERED THE REGULAR TROOPS TO REPORT TO THE GOVERNOR FOR
INSTRUCTIONS AND TO SUPPORT THE CIVIL AUTHORITIES IN PRESERVING THE
PEACE.  LATER THE STATE AUDITOR AS AGENT OF THE GOVERNOR, AND NOT THE
COMMANDING GENERAL, ORDERED THE TROOPS TO DETAIN CITIZENS WITHOUT TRIAL
AND TO AID THE AUDITOR IN DOING ALL HE THOUGHT NECESSARY TO STOP THE
RIOT.  FN19  ONCE MORE, THE MILITARY AUTHORITIES DID NOT UNDERTAKE TO
SUPPLANT THE COURTS AND TO ESTABLISH MILITARY TRIBUNALS TO TRY AND
PUNISH ORDINARY CIVILIAN OFFENDERS.  FN20 

COURTS AND THEIR PROCEDURAL SAFEGUARDS ARE INDISPENSABLE TO OUR
SYSTEM OF GOVERNMENT.  THEY WERE SET UP BY OUR FOUNDERS TO PROTECT THE
LIBERTIES THEY VALUED.  EX PARTE QUIRIN, 317 U.S. 1, 19.  OUR SYSTEM OF
GOVERNMENT CLEARLY IS THE ANTITHESIS OF TOTAL MILITARY RULE AND THE
FOUNDERS OF THIS COUNTRY ARE NOT LIKELY TO HAVE CONTEMPLATED COMPLETE
MILITARY DOMINANCE WITHIN THE LIMITS OF A TERRITORY MADE PART OF THIS
COUNTRY AND NOT RECENTLY TAKEN FROM AN ENEMY.  THEY WERE OPPOSED TO
GOVERNMENTS THAT PLACED IN THE HANDS OF ONE MAN THE POWER TO MAKE,
INTERPRET AND ENFORCE THE LAWS.  THEIR PHILOSOPHY HAS BEEN THE PEOPLE'S
THROUGHOUT OUR HISTORY.  FOR THAT REASON WE HAVE MAINTAINED
LEGISLATURES CHOSEN BY CITIZENS OR THEIR REPRESENTATIVES AND COURTS AND
JURIES TO TRY THOSE WHO VIOLATE LEGISLATIVE ENACTMENTS.  WE HAVE ALWAYS
BEEN ESPECIALLY CONCERNED ABOUT THE POTENTIAL EVILS OF SUMMARY CRIMINAL
TRIALS AND HAVE GUARDED AGAINST THEM BY PROVISIONS EMBODIED IN THE
CONSTITUTION ITSELF.  SEE EX PARTE MILLIGAN, 4 WALL.  2; CHAMBERS V.
FLORIDA, 309 U.S. 227.  LEGISLATURES AND COURTS ARE NOT MERELY
CHERISHED AMERICAN INSTITUTIONS; THEY ARE INDISPENSABLE TO OUR
GOVERNMENT.    MILITARY TRIBUNALS HAVE NO SUCH STANDING.  FOR AS THIS
COURT HAS SAID BEFORE:  "...  THE MILITARY SHOULD ALWAYS BE KEPT IN
SUBJECTION TO THE LAWS OF THE COUNTRY TO WHICH IT BELONGS, AND THAT HE
IS NO FRIEND TO THE REPUBLIC WHO ADVOCATES THE CONTRARY.  THE
ESTABLISHED PRINCIPLE OF EVERY FREE PEOPLE IS, THAT THE LAW SHALL ALONE
GOVERN; AND TO IT THE MILITARY MUST ALWAYS YIELD."  DOW V. JOHNSON, 100
U.S. 158, 169.  CONGRESS PRIOR TO THE TIME OF THE ENACTMENT OF THE
ORGANIC ACT HAD ONLY ONCE AUTHORIZED THE SUPPLANTING OF THE COURTS BY
MILITARY TRIBUNALS.  LEGISLATION TO THAT EFFECT WAS ENACTED IMMEDIATELY
AFTER THE SOUTH'S UNSUCCESSFUL ATTEMPT TO SECEDE FROM THE UNION. 
INSOFAR AS THAT LEGISLATION APPLIED TO THE SOUTHERN STATES AFTER THE
WAR WAS AT AN END IT WAS CHALLENGED BY A SERIES OF PRESIDENTIAL VETOES
AS VIGOROUS AS ANY IN THE COUNTRY'S HISTORY.  FN21 AND IN ORDER TO
PREVENT THIS COURT FROM PASSING ON THE CONSTITUTIONALITY OF THIS
LEGISLATION CONGRESS FOUND IT NECESSARY TO CURTAIL OUR APPELLATE
JURISDICTION.  FN22  INDEED, PRIOR TO THE ORGANIC ACT, THE ONLY TIME
THIS COURT HAD EVER DISCUSSED THE SUPPLANTING OF COURTS BY MILITARY
TRIBUNALS IN A SITUATION OTHER THAN THAT INVOLVING THE ESTABLISHMENT OF
A MILITARY GOVERNMENT OVER RECENTLY OCCUPIED ENEMY TERRITORY, IT HAD
EMPHATICALLY DECLARED THAT "CIVIL LIBERTY AND THIS KIND OF MARTIAL LAW
CANNOT ENDURE TOGETHER; THE ANTAGONISM IS IRRECONCILABLE; AND, IN THE
CONFLICT, ONE OR THE OTHER MUST PERISH."  EX PARTE MILLIGAN, 4 WALL. 
2, 124-125. 

WE BELIEVE THAT WHEN CONGRESS PASSED THE HAWAIIAN ORGANIC ACT AND
AUTHORIZED THE ESTABLISHMENT OF "MARTIAL LAW" IT HAD IN MIND AND DID
NOT WISH TO EXCEED THE BOUNDARIES BETWEEN MILITARY AND CIVILIAN POWER,
IN WHICH OUR PEOPLE HAVE ALWAYS BELIEVED, WHICH RESPONSIBLE MILITARY
AND EXECUTIVE OFFICERS HAD HEEDED, AND WHICH HAD BECOME PART OF OUR
POLITICAL PHILOSOPHY AND INSTITUTIONS PRIOR TO THE TIME CONGRESS PASSED
THE ORGANIC ACT.  THE PHRASE "MARTIAL LAW" AS EMPLOYED IN THAT ACT,
THEREFORE, WHILE INTENDED TO AUTHORIZE THE MILITARY TO ACT VIGOROUSLY
FOR THE MAINTENANCE OF AN ORDERLY CIVIL GOVERNMENT AND FOR THE DEFENSE
OF THE ISLANDS AGAINST ACTUAL OR THREATENED REBELLION OR INVASION, WAS
NOT INTENDED TO AUTHORIZE THE SUPPLANTING OF COURTS BY MILITARY
TRIBUNALS.  YET THE GOVERNMENT SEEKS TO JUSTIFY THE PUNISHMENT OF BOTH
WHITE AND DUNCAN ON THE GROUND OF SUCH SUPPOSED CONGRESSIONAL
AUTHORIZATION.  WE HOLD THAT BOTH PETITIONERS ARE NOW ENTITLED TO BE
RELEASED FROM CUSTODY.  REVERSED. 

FN1  "THAT THE GOVERNOR SHALL BE RESPONSIBLE FOR THE FAITHFUL
EXECUTION OF THE LAWS OF THE UNITED STATES AND OF THE TERRITORY OF
HAWAII WITHIN THE SAID TERRITORY, AND WHENEVER IT BECOMES NECESSARY HE
MAY CALL UPON THE COMMANDERS OF THE MILITARY AND NAVAL FORCES OF THE
UNITED STATES IN THE TERRITORY OF HAWAII, OR SUMMON THE POSSE
COMITATUS, OR CALL OUT THE MILITIA OF THE TERRITORY TO PREVENT OR
SUPPRESS LAWLESS VIOLENCE, INVASION, INSURRECTION, OR REBELLION IN SAID
TERRITORY, AND HE MAY, IN CASE OF REBELLION OR INVASION, OR IMMINENT
DANGER THEREOF, WHEN THE PUBLIC SAFETY REQUIRES IT, SUSPEND THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS, OR PLACE THE TERRITORY, OR ANY
PART THEREOF, UNDER MARTIAL LAW UNTIL COMMUNICATION CAN BE HAD WITH THE
PRESIDENT AND HIS DECISION THEREON MADE KNOWN." 

FN2  THE DISTRICT COURT HEARD MUCH EVIDENCE AND FROM IT FOUND AS
FOLLOWS ON THIS SUBJECT:  "BY RADIO THE GOVERNOR OF HAWAII ON DECEMBER
7, 1941, NOTIFIED THE PRESIDENT OF THE UNITED STATES SIMPLY THAT HE HAD
PLACED THE TERRITORY UNDER MARTIAL LAW AND SUSPENDED THE WRIT.  THE
PRESIDENT'S APPROVAL WAS REQUESTED AND IT WAS GRANTED BY RADIO ON
DECEMBER 8, 1941.  NOT UNTIL 1943 WAS THE TEXT OF THE GOVERNOR'S
DECEMBER 7 PROCLAMATION FURNISHED WASHINGTON OFFICIALS, AND IT IS STILL
DOUBTFUL IF IT HAS YET BEEN SEEN BY THE PRESIDENT." 

FN3  IN ADDITION, SEC. 3 OF A PROCLAMATION OF FEBRUARY 8, 1943, WHICH
RETURNED SOME POWER TO THE CIVIL AUTHORITIES, HAD RESERVED A RIGHT IN
THE MILITARY GOVERNOR TO RESUME ANY OR ALL OF THE POWERS RETURNED TO
THE CIVILIAN GOVERNMENT.  IN APPROVING THIS PROCLAMATION THE PRESIDENT
HAD EXPRESSED HIS CONFIDENCE THAT THE MILITARY WOULD "REFRAIN FROM
EXERCISING  ...  AUTHORITY OVER ...  NORMALLY CIVIL FUNCTIONS" AND HIS
HOPE THAT THERE WOULD "BE A FURTHER RESTORATION OF CIVIL AUTHORITY AS
AND WHEN THE SITUATION PERMITS." 

FN4  WE DO NOT SET OUT THE OTHER GROUNDS OF CHALLENGE SINCE UNDER THE
VIEW WE TAKE WE DO NOT REACH THEM. 

FN5  THE GOVERNMENT POINTS OUT THAT SINCE THE PRIVILEGE OF THE WRIT
WAS RESTORED AND MARTIAL LAW TERMINATED BY PRESIDENTIAL PROCLAMATION ON
OCTOBER 24, 1944, PETITIONERS ARE ENTITLED TO THEIR LIBERTY IF THE
MILITARY TRIBUNALS WERE WITHOUT JURISDICTION TO TRY THEM.  WE THEREFORE
DO NOT PASS UPON THE VALIDITY OF THE ORDER SUSPENDING THE PRIVILEGE OF
HABEAS CORPUS OR THE POWER OF THE MILITARY TO DETAIN PERSONS UNDER
OTHER CIRCUMSTANCES AND CONDITIONS. 

FN6  WILKES V. DINSMAN, 7 HOW.  89; EX PARTE REED, 100 U.S. 13;
MARTIN V. MOTT, 12 WHEAT.  19; IN RE GRIMLEY, 137 U.S. 147; JOHNSON V.
SAYRE, 158 U.S. 109; CARTER V. MCCLAUGHRY, 183 U.S. 365. 

FN7  EX PARTE GERLACH, 247 F. 616; EX PARTE FALLS, 251 F. 415; EX
PARTE JOCHEN, 257 F. 200; HINES V. MIKELL, 259 F. 28.  SEE CASES AND
STATUTES COLLECTED AND DISCUSSED IN UNDERHILL, INFRA, NOTE 11, 12 CAL.
L. REV. 81-98. 

FN8  EX PARTE QUIRIN, 317 U.S. 1; IN RE YAMASHITA, 327 U.S. 1.  SEE
10 U.S.C. SECS. 1553, 1554.  SEE ALSO CASES AND STATUTES COLLECTED AND
DISCUSSED IN UNDERHILL, INFRA, NOTE 11, 12 CAL. L. REV. 81-98. 

FN9  CROSS V. HARRISON, 16 HOW.  164; LEITENSDORFER V. WEBB, 20 HOW. 
176; THE PRIZE CASES, 2 BLACK 635; MRS. ALEXANDER'S COTTON, 2 WALL. 
404; FORD V. SURGET, 97 U.S. 594, 604; NEW ORLEANS V. STEAMSHIP CO., 20
WALL.  387, 393; DOW V. JOHNSON, 100 U.S. 158, 166; THE GRAPESHOT, 9
WALL.  129; MECHANICS' & TRADERS' BANK V. UNION BANK, 22 WALL.  276. 
NOR IS THIS A CASE WHERE VIOLATORS OF MILITARY ORDERS ARE TO BE TRIED
BY REGULAR COURTS.  CF. HIRABAYASHI V. UNITED STATES, 320 U.S. 81. 

FN10  MOYER V. PEABODY, 212 U.S. 78; EX PARTE MILLIGAN, 4 WALL.  2,
125, 126; LUTHER V. BORDEN, 7 HOW.  1, 45, 46; SEE STERLING V.
CONSTANTIN, 287 U.S. 378, 400; FAIRMAN, THE LAW OF MARTIAL RULE,
CHICAGO 1943, 209-218. 

FN11  FOR DISCUSSIONS OF THE GREAT CONTRAST OF VIEWS SEE THE
FOLLOWING WRITINGS:  FAIRMAN, SUPRA, CH. II; WIENER, A PRACTICAL MANUAL
OF MARTIAL LAW, HARRISBURG 1940, CH. 1; MILITARY AID TO THE CIVIL
POWER, FORT LEAVENWORTH 1925, PP. 230-232; UNDERHILL, JURISDICTION OF
MILITARY TRIBUNALS IN THE UNITED STATES OVER CIVILIANS (1924) 12 CAL.
L. REV. 75, 163-178; BALLENTINE, QUALIFIED MARTIAL LAW (1915) 14 MICH.
L. REV. 102, 203, 204; MAX RADIN, MARTIAL LAW AND THE STATE OF SIEGE
(1942) 30 CAL. L. REV. 634. 

FN12  WE POINT OUT IN THIS CONNECTION THAT BY SEC. 83 OF THE ORGANIC
ACT CONGRESS PROVIDED HOW JURIES SHOULD BE CONSTITUTED AND PROVIDED FOR
THE DRAWING OF GRAND JURIES AND FOR UNANIMOUS JURY VERDICTS IN CRIMINAL
CASES.  31 STAT. 141, 157. 

FN13  GOVERNMENT FOR THE TERRITORY OF HAWAII, H. REP. NO. 305, 56TH
CONG., 1ST SESS., P. 10.  IN THE HOUSE, REPRESENTATIVE KNOX, THE
REPUBLICAN LEADER FOR THE BILL, STATED:  "THIS BILL, IN SO MANY WORDS,
EXTENDS THE CONSTITUTION TO HAWAII; SO THAT THERE HAS NOT BEEN
PRACTICALLY A MOMENT OF TIME SINCE THE HAWAIIAN ISLANDS WERE ANNEXED TO
THE UNITED STATES THAT THE CONSTITUTION HAS NOT BEEN THE STANDARD BY
WHICH ALL THE LAWS OF THAT COUNTRY MUST BE MEASURED  ...  THE DECISIONS
OF THE SUPREME COURT OF THE UNITED STATES WILL BE EQUALLY OPERATIVE IN
HAWAII AS IN ANY PORTION OF THE UNITED STATES AS TO ANY CONSTITUTIONAL
RIGHT WHICH HE POSSESSES."  33 CONG. REC. 3704, 3709(1900).  SEE THE
FOLLOWING DECISIONS OF THIS COURT RELATING TO THE APPLICABILITY OF THE
CONSTITUTION TO UNITED STATES TERRITORIES.  HAWAII V. MANKICHI, 190
U.S. 197; RASSMUSSEN V. UNITED STATES, 197 U.S. 516; FARRINGTON V.
TOKUSHIGE, 273 U.S. 284.  SEE ALSO FRANK, EX PARTE MILLIGAN V. THE FIVE
COMPANIES:  MARTIAL LAW IN HAWAII (1944) 44 COL. L. REV. 639, 658-660. 

FN14  3 CHAS. I, C. 1. 

FN15  HALLAM, CONSTITUTIONAL HISTORY, (2D ED.)  VOL.  I, C. VII, PP.
531, 532, 533.  SEE ALSO DISCUSSIONS IN DISSENT IN LUTHER V. BORDEN,  7
HOW.  1, 48, 63; IN RE MCDONALD, 49 MONT. 454, 468, 143 P. 947. 

FN16  FEDERAL AID IN DOMESTIC DISTURBANCES, SENATE DOCUMENT NO. 263,
67TH CONG., 2D SESS., 10. 

FN17  ID. PP. 31, 32.  SEE ALSO ON THE SAME SUBJECT THE DISSENT IN
LUTHER V. BORDEN, SUPRA, 7 HOW.  AT 77-81. 

FN18  THIS APPEARS FROM THE FACTS RELATED THROUGHOUT SENATE DOCUMENT
NO. 263, 67TH CONG., 2D SESS., SUPRA. 

AFTER THE PASSING OF THE ORGANIC ACT DISTURBANCES IN THE COAL FIELDS
OF WEST VIRGINIA, A LONGSHOREMEN'S STRIKE IN GALVESTON AND A PACKERS'
STRIKE IN NEBRASKA CITY, ALL LED TO CRIMINAL TRIALS OF CIVILIANS BY
MILITARY TRIBUNALS WHICH WERE UPHELD BY DECISIONS OF STATE AND LOWER
FEDERAL COURTS.  STATE EX REL. MAYS V. BROWN, 71 W. VA. 519, 77 S.E.
243; EX PARTE JONES, 71 W. VA. 567, 77 S.E. 1029; UNITED STATES EX REL.
MCMASTER V. WOLTERS, 268 F. 69; UNITED STATES EX REL. SEYMOUR V.
FISCHER, 280 F. 208.  BUT CF. IN RE MCDONALD, 49 MONT. 454.  ALL THESE
CASES RESTED ON THE GROUND THAT THE GOVERNOR'S DETERMINATION OF THE
EXISTENCE OF INSURRECTION CONCLUSIVELY ESTABLISHED THAT ALL THE
GOVERNOR HAD DONE WAS LEGAL.  THE BASIS OF THESE DECISIONS WAS
DEFINITELY HELD ERRONEOUS IN STERLING V. CONSTANTIN, 287 U.S. 378,
WHERE THIS COURT SAID: "WHAT ARE THE ALLOWABLE LIMITS OF MILITARY
DISCRETION, AND WHETHER OR NOT THEY HAVE BEEN OVERSTEPPED IN A
PARTICULAR CASE, ARE JUDICIAL QUESTIONS."  287 U.S. AT 401.  AS ONE
COMMENTATOR PUTS IT, THIS COURT "HAS KNOCKED OUT THE PROP" ON WHICH
THESE AFOREMENTIONED CASES RESTED.  WIENER, A PRACTICAL MANUAL OF
MARTIAL LAW, 1940, P. 116. 

FN19  SENATE DOCUMENT NO. 263, 67TH CONG., 2D SESS., 190 FF., 210
FF. 

FN20  EVEN AS LATE AS 1937 WHEN THE WAR DEPARTMENT PROMULGATED
REGULATIONS CONCERNING THE EMPLOYMENT OF TROOPS IN AID OF CIVIL
AUTHORITIES, IT WAS AWARE OF THIS TRADITION.  A.R. 500-50, P7E STATED:
"...  PERSONS NOT NORMALLY SUBJECT TO MILITARY LAW, TAKEN INTO CUSTODY
BY THE MILITARY FORCES INCIDENT TO THE USE OF TROOPS CONTEMPLATED BY
THESE REGULATIONS, SHOULD BE TURNED OVER TO THE CIVIL AUTHORITIES. 
PUNISHMENT IN SUCH CASES BELONGS TO THE COURTS OF JUSTICE AND NOT TO
THE ARMED FORCES."  BUT CF. AR. 500-50, P8(1945). 

FN21  IN ONE OF THESE VETOES PRESIDENT JOHNSON SAID:  "THE TRIALS
HAVING THEIR ORIGIN UNDER THIS BILL ARE TO TAKE PLACE WITHOUT THE
INTERVENTION OF A JURY AND WITHOUT ANY FIXED RULES OF LAW OR EVIDENCE. 
THE RULES ON WHICH OFFENSES ARE TO BE 'HEARD AND DETERMINED' BY THE
NUMEROUS AGENTS ARE SUCH RULES AND REGULATIONS AS THE PRESIDENT,
THROUGH THE WAR DEPARTMENT, SHALL PRESCRIBE.  NO PREVIOUS PRESENTMENT
IS REQUIRED NOR ANY INDICTMENT CHARGING THE COMMISSION OF A CRIME
AGAINST THE LAWS; BUT THE TRIAL MUST PROCEED ON CHARGES AND
SPECIFICATIONS.  THE PUNISHMENT WILL BE, NOT WHAT THE LAW DECLARES, BUT
SUCH AS A COURT-MARTIAL MAY THINK PROPER; AND FROM THESE ARBITRARY
TRIBUNALS THERE LIES NO APPEAL, NO WRIT OF ERROR TO ANY OF THE COURTS
IN WHICH THE CONSTITUTION OF THE UNITED STATES VESTS EXCLUSIVELY THE
JUDICIAL POWER OF THE COUNTRY."  MESSAGES AND PAPERS OF THE PRESIDENTS,
RICHARDSON, VOL. VI, 399.  IN ANOTHER HE SAID:  "IT IS PLAIN THAT THE
AUTHORITY HERE GIVEN TO THE MILITARY OFFICER AMOUNTS TO ABSOLUTE
DESPOTISM.  BUT TO MAKE IT STILL MORE UNENDURABLE, THE BILL PROVIDES
THAT IT MAY BE DELEGATED TO AS MANY SUBORDINATES AS HE CHOOSES TO
APPOINT, FOR IT DECLARES THAT HE SHALL 'PUNISH OR CAUSE TO BE
PUNISHED.'  SUCH A POWER HAS NOT BEEN WIELDED BY ANY MONARCH IN ENGLAND
FOR MORE THAN FIVE HUNDRED YEARS....  THIS BROAD PRINCIPLE LIMITS ALL
OUR FUNCTIONS AND APPLIES TO ALL SUBJECTS.  IT PROTECTS NOT ONLY THE
CITIZENS OF STATES WHICH ARE WITHIN THE UNION, BUT IT SHIELDS EVERY
HUMAN BEING WHO COMES OR IS BROUGHT UNDER OUR JURISDICTION.  WE HAVE NO
RIGHT TO DO IN ONE PLACE MORE THAN IN ANOTHER THAT WHICH THE
CONSTITUTION SAYS WE SHALL NOT DO AT ALL."  ID., PP. 502-503. 

FN22  EX PARTE MCCARDLE, 6 WALL.  318.  SEE ALSO WARREN, THE SUPREME
COURT IN UNITED STATES HISTORY, VOL. 2, 464, 484. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE MURPHY, CONCURRING. 

THE COURT'S OPINION, IN WHICH I JOIN, MAKES CLEAR THAT THE MILITARY
TRIALS IN THESE CASES WERE UNJUSTIFIED BY THE MARTIAL LAW PROVISIONS OF
THE HAWAIIAN ORGANIC ACT.  EQUALLY OBVIOUS, AS I SEE IT, IS THE FACT
THAT THESE TRIALS WERE FORBIDDEN BY THE BILL OF RIGHTS OF THE
CONSTITUTION OF THE UNITED STATES, WHICH APPLIES IN BOTH SPIRIT AND
LETTER TO HAWAII.  INDEED, THE UNCONSTITUTIONALITY OF THE USURPATION OF
CIVIL POWER BY THE MILITARY IS SO GREAT IN THIS INSTANCE AS TO WARRANT
THIS COURT'S COMPLETE AND OUTRIGHT REPUDIATION OF THE ACTION. 

ABHORRENCE OF MILITARY RULE IS INGRAINED IN OUR FORM OF GOVERNMENT. 
THOSE WHO FOUNDED THIS NATION KNEW FULL WELL THAT THE ARBITRARY POWER
OF CONVICTION AND PUNISHMENT FOR PRETENDED OFFENSES IS THE HALLMARK OF
DESPOTISM.  SEE THE FEDERALIST, NO. 83.  HISTORY HAD DEMONSTRATED THAT
FACT TO THEM TIME AND AGAIN.  THEY SHED THEIR BLOOD TO WIN INDEPENDENCE
FROM A RULER WHO THEY ALLEGED WAS ATTEMPTING TO RENDER THE "MILITARY
INDEPENDENT OF AND SUPERIOR TO THE CIVIL POWER" AND WHO WAS "DEPRIVING
US  ...  OF THE BENEFITS OF TRIAL BY JURY."  IN THE EARLIEST STATE
CONSTITUTIONS THEY INSERTED DEFINITE PROVISIONS PLACING THE MILITARY
UNDER "STRICT SUBORDINATION" TO THE CIVIL POWER AT ALL TIMES AND IN ALL
CASES.  AND IN FRAMING THE BILL OF RIGHTS OF THE FEDERAL CONSTITUTION
THEY WERE CAREFUL TO MAKE SURE THAT THE POWER TO PUNISH WOULD REST
PRIMARILY WITH THE CIVIL AUTHORITIES AT ALL TIMES.  THEY BELIEVED THAT
A TRIAL BY AN ESTABLISHED COURT, WITH AN IMPARTIAL JURY, WAS THE ONLY
CERTAIN WAY TO PROTECT AN INDIVIDUAL AGAINST OPPRESSION.  THE BILL OF
RIGHTS TRANSLATED THAT BELIEF INTO REALITY BY GUARANTEEING THE
OBSERVANCE OF JURY TRIALS AND OTHER BASIC PROCEDURAL RIGHTS FOREIGN TO
MILITARY PROCEEDINGS.  THIS SUPREMACY OF THE CIVIL OVER THE MILITARY IS
ONE OF OUR GREAT HERITAGES.  IT HAS MADE POSSIBLE THE ATTAINMENT OF A
HIGH DEGREE OF LIBERTY REGULATED BY LAW RATHER THAN BY CAPRICE.  OUR
DUTY IS TO GIVE EFFECT TO THAT HERITAGE AT ALL TIMES, THAT IT MAY BE
HANDED DOWN UNTARNISHED TO FUTURE GENERATIONS. 

SUCH CONSIDERATIONS LED THIS COURT IN EX PARTE MILLIGAN, 4 WALL.  2,
TO LAY DOWN THE RULE THAT THE MILITARY LACKS ANY CONSTITUTIONAL POWER
IN WAR OR IN PEACE TO SUBSTITUTE ITS TRIBUNALS FOR CIVIL COURTS THAT
ARE OPEN AND OPERATING IN THE PROPER AND UNOBSTRUCTED EXERCISE OF THEIR
JURISDICTION.  ONLY WHEN A FOREIGN INVASION OR CIVIL WAR ACTUALLY
CLOSES THE COURTS AND RENDERS IT IMPOSSIBLE FOR THEM TO ADMINISTER
CRIMINAL JUSTICE CAN MARTIAL LAW VALIDLY BE INVOKED TO SUSPEND THEIR
FUNCTIONS.  EVEN THE SUSPENSION OF POWER UNDER THOSE CONDITIONS IS OF A
MOST TEMPORARY CHARACTER.  "AS NECESSITY CREATES THE RULE, SO IT LIMITS
ITS DURATION; FOR, IF THIS GOVERNMENT IS CONTINUED AFTER THE COURTS ARE
REINSTATED, IT IS A GROSS USURPATION OF POWER."  ID., 127. 

TESTED BY THE MILLIGAN RULE, THE MILITARY PROCEEDINGS IN ISSUE
PLAINLY LACKED CONSTITUTIONAL SANCTION.  PETITIONER WHITE WAS ARRESTED
FOR EMBEZZLEMENT ON AUGUST 20, 1942, BY THE PROVOST MARSHAL.  TWO DAYS
LATER HE WAS ORALLY INFORMED OF THE CHARGES AGAINST HIM.  VARIOUS
MOTIONS, INCLUDING A REQUEST FOR A JURY TRIAL AND FOR TIME TO PREPARE A
DEFENSE, WERE OVERRULED.  ON AUGUST 25 HE WAS CONVICTED AND SENTENCED
TO FIVE YEARS IN PRISON.  PETITIONER DUNCAN WAS ACCORDED SIMILAR
STREAMLINED TREATMENT BY THE MILITARY.  ON FEBRUARY 24, 1944, HE
ENGAGED IN A FIGHT WITH TWO ARMED SENTRIES AT THE NAVY YARD AT
HONOLULU.  HE WAS PROMPTLY TRIED WITHOUT A JURY IN THE PROVOST COURT ON
MARCH 2 AND SENTENCED TO SIX MONTHS AT HARD LABOR, DESPITE HIS PLEA OF
SELF-DEFENSE.  BOTH THE PETITIONERS WERE CIVILIANS ENTITLED TO THE FULL
PROTECTION OF THE BILL OF RIGHTS, INCLUDING THE RIGHT TO JURY TRIAL. 

IT IS UNDENIED THAT THE TERRITORIAL COURTS OF HAWAII WERE OPEN AND
FUNCTIONING DURING THE PERIOD WHEN THE FOREGOING EVENTS TOOK PLACE. 
MARTIAL LAW WAS PROCLAIMED ON DECEMBER 7, 1941, IMMEDIATELY AFTER THE
ATTACK ON PEARL HARBOR; PROVOST COURTS AND MILITARY COMMISSIONS WERE
IMMEDIATELY ESTABLISHED FOR THE TRIAL OF CIVILIANS ACCUSED OF CRIME. 
GENERAL ORDERS NO. 4.  ON THE NEXT DAY, DECEMBER 8, THE TERRITORIAL
COURTS WERE CLOSED BY MILITARY ORDER.  THEREAFTER CRIMINAL CASES OF ALL
DESCRIPTION, WHETHER INVOLVING OFFENSES AGAINST FEDERAL OR TERRITORIAL
LAW OR VIOLATIONS OF MILITARY ORDERS, WERE HANDLED IN THE PROVOST
COURTS AND MILITARY COMMISSIONS.  EIGHT DAYS LATER, HOWEVER, THE
MILITARY PERMITTED THE REOPENING OF THE COURTS FOR THE TRIAL OF LIMITED
CLASSES OF CASES NOT REQUIRING JURIES OR THE SUBPOENAING OF WITNESSES. 
GENERAL ORDERS NO. 29.  ON JANUARY 27, 1942, FURTHER POWER WAS RESTORED
TO THE COURTS BY DESIGNATING THEM "AS AGENTS OF THE MILITARY GOVERNOR"
TO DISPOSE OF CIVIL CASES EXCEPT THOSE INVOLVING JURY TRIALS, HABEAS
CORPUS AND OTHER SPECIFIED MATTERS AND TO EXERCISE CRIMINAL
JURISDICTION IN LIMITED TYPES OF ALREADY PENDING CASES.  GENERAL ORDERS
NO. 57.  PROTESTS LED TO THE ISSUANCE OF GENERAL ORDERS NO. 133 ON
AUGUST 31, 1942, EXPANDING THE JURISDICTION OF CIVIL COURTS TO COVER
CERTAIN TYPES OF JURY TRIALS.  BUT GENERAL ORDERS NO. 135, ISSUED ON
SEPTEMBER 4, 1942, CONTINUED MILITARY JURISDICTION OVER OFFENSES
DIRECTED AGAINST THE GOVERNMENT OR RELATED TO THE WAR EFFORT. 
PROCLAMATIONS ON FEBRUARY 8, 1943, PROVIDED THAT THE JURISDICTION OF
THE COURTS WAS TO BE REESTABLISHED IN FULL EXCEPT IN CASES OF CRIMINAL
AND CIVIL SUITS AGAINST PERSONS IN THE ARMED FORCES AND EXCEPT FOR
"CRIMINAL PROSECUTIONS FOR VIOLATIONS OF MILITARY ORDERS."  THESE
PROCLAMATIONS BECAME EFFECTIVE ON MARCH 10, TOGETHER WITH A REVISED
CODE OF MILITARY ORDERS.  MARTIAL LAW WAS FINALLY LIFTED FROM HAWAII ON
OCTOBER 24, 1944. 

THERE CAN BE NO QUESTION BUT THAT WHEN PETITIONERS WHITE AND DUNCAN
WERE SUBJECTED TO MILITARY TRIALS ON AUGUST 25, 1942, AND MARCH 2,
1944, RESPECTIVELY, THE TERRITORIAL COURTS OF HAWAII WERE PERFECTLY
CAPABLE OF EXERCISING THEIR NORMAL CRIMINAL JURISDICTION HAD THE
MILITARY ALLOWED THEM TO DO SO.  THE CHIEF JUSTICE OF THE SUPREME COURT
OF HAWAII STATED THAT AFTER THE MONTH OF APRIL, 1942, HE KNEW OF "NO
SOUND REASON FOR DENIAL OF TRIAL BY JURY TO CIVILIANS CHARGED WITH
CRIMINAL OFFENSE UNDER THE LAWS OF THE TERRITORY."  THE GOVERNOR OF THE
TERRITORY ALSO TESTIFIED THAT THE TRIAL OF CIVILIANS BEFORE MILITARY
COURTS FOR OFFENSES AGAINST THE LAWS OF THE TERRITORY WAS UNNECESSARY
AND UNJUSTIFIED BY THE CONDITIONS IN THE TERRITORY WHEN PETITIONER
WHITE WAS CHARGED WITH EMBEZZLEMENT IN AUGUST, 1942.  IN SHORT, THE
BILL OF RIGHTS DISAPPEARED BY MILITARY FIAT RATHER THAN BY MILITARY
NECESSITY. 

MOREOVER, THERE IS NO QUESTION HERE AS TO THE LOYALTY OF THE HAWAIIAN
JUDICIARY OR AS TO THE DESIRE AND ABILITY OF THE JUDGES TO COOPERATE
FULLY WITH MILITARY REQUIREMENTS.  THERE IS NO EVIDENCE OF DISORDER IN
THE COMMUNITY WHICH MIGHT HAVE PREVENTED THE COURTS FROM CONDUCTING
JURY TRIALS.  AS WAS SAID IN THE MILLIGAN CASE, P. 127, "IT IS
DIFFICULT TO SEE HOW THE SAFETY OF THE COUNTRY REQUIRED MARTIAL LAW IN
INDIANA (HAWAII).  IF ANY OF HER CITIZENS WERE PLOTTING TREASON, THE
POWER OF ARREST COULD SECURE THEM, UNTIL THE GOVERNMENT WAS PREPARED
FOR THEIR TRIAL, WHEN THE COURTS WERE OPEN AND READY TO TRY THEM.  IT
WAS AS EASY TO PROTECT WITNESSES BEFORE A CIVIL AS A MILITARY TRIBUNAL;
AND AS THERE COULD BE NO WISH TO CONVICT, EXCEPT ON SUFFICIENT LEGAL
EVIDENCE, SURELY AN ORDAINED AND ESTABLISHED COURT WAS BETTER ABLE TO
JUDGE OF THIS THAN A MILITARY TRIBUNAL COMPOSED OF GENTLEMEN NOT
TRAINED TO THE PROFESSION OF THE LAW."  THUS, SINCE THE COURTS WERE
OPEN AND ABLE TO FUNCTION, THE MILITARY TRIALS OF THE PETITIONERS WERE
IN VIOLATION OF THE CONSTITUTION.  WHETHER, IF THE COURTS HAD BEEN
CLOSED BY NECESSITY, THE MILITARY COULD HAVE TRIED THE PETITIONERS OR
MERELY COULD HAVE HELD THEM UNTIL THE COURTS REOPENED IS A
CONSTITUTIONAL ISSUE ABSENT FROM THESE CASES. 

THE SO-CALLED "OPEN COURT" RULE OF THE MILLIGAN CASE, TO BE SURE, HAS
BEEN THE SUBJECT OF SEVERE CRITICISM, ESPECIALLY BY MILITARY
COMMENTATORS.  THAT CRITICISM IS REPEATED BY THE GOVERNMENT IN THESE
CASES.  IT IS SAID THAT THE FACT THAT COURTS ARE OPEN IS BUT ONE OF
MANY FACTORS RELEVANT TO DETERMINING THE NECESSITY AND HENCE THE
CONSTITUTIONALITY OF MILITARY TRIALS OF CIVILIANS.  THE ARGUMENT IS
MADE THAT HOWEVER ADEQUATE THE "OPEN COURT" RULE MAY HAVE BEEN IN 1628
OR 1864 IT IS DISTINCTLY UNSUITED TO MODERN WARFARE CONDITIONS WHERE
ALL OF THE TERRITORIES OF A WARRING NATION MAY BE IN COMBAT ZONES OR
IMMINENTLY THREATENED WITH LONG-RANGE ATTACK EVEN WHILE CIVIL COURTS
ARE OPERATING.  HENCE IF A MILITARY COMMANDER, ON THE BASIS OF HIS
CONCEPTION OF MILITARY NECESSITY, REQUIRES ALL CIVILIANS ACCUSED OF
CRIME TO BE TRIED SUMMARILY BEFORE MARTIAL LAW TRIBUNALS, THE BILL OF
RIGHTS MUST BOW HUMBLY TO HIS JUDGMENT DESPITE THE UNQUESTIONED ABILITY
OF THE CIVIL COURTS TO EXERCISE THEIR CRIMINAL JURISDICTION. 

THE ARGUMENT THUS ADVANCED IS AS UNTENABLE TODAY AS IT WAS WHEN CAST
IN THE LANGUAGE OF THE PLANTAGENETS, THE TUDORS AND THE STUARTS.  IT IS
A RANK APPEAL TO ABANDON THE FATE OF ALL OUR LIBERTIES TO THE
REASONABLENESS OF THE JUDGMENT OF THOSE WHO ARE TRAINED PRIMARILY FOR
WAR.  IT SEEKS TO JUSTIFY MILITARY USURPATION OF CIVILIAN AUTHORITY TO
PUNISH CRIME WITHOUT REGARD TO THE POTENCY OF THE BILL OF RIGHTS.  IT
DESERVES REPUDIATION. 

THE UNTENABLE BASIS OF THIS PROPOSED REVERSION BACK TO UNLIMITED
MILITARY RULE IS REVEALED BY THE REASONS ADVANCED IN SUPPORT OF THE
REASONABLENESS OF THE MILITARY JUDGMENT THAT IT WAS NECESSARY, EVEN
THOUGH THE CIVIL COURTS WERE OPEN AND FULLY ABLE TO PERFORM THEIR
FUNCTIONS, TO IMPOSE MILITARY TRIALS ON ALL PERSONS ACCUSED OF CRIME IN
HAWAII AT THE TIME WHEN THE PETITIONERS WERE TRIED AND CONVICTED: 

FIRST.  ACCORDING TO THE TESTIMONY OF ADMIRAL NIMITZ AND GENERAL
RICHARDSON, HAWAII WAS IN THE ACTUAL THEATRE OF WAR FROM DECEMBER 7,
1941, THROUGH THE PERIOD IN QUESTION.  THEY STATED THAT THERE WAS AT
ALL TIMES A DANGER OF INVASION, AT LEAST IN THE NATURE OF COMMANDO
RAIDS OR SUBMARINE ATTACKS, AND THAT PUBLIC SAFETY REQUIRED THE
IMPOSITION OF MARTIAL LAW.  FOR PRESENT PURPOSES IT IS UNNECESSARY TO
DISPUTE ANY OF SUCH TESTIMONY.  WE MAY ASSUME THAT THE THREAT TO HAWAII
WAS A REAL ONE; WE MAY ALSO TAKE IT FOR GRANTED THAT THE GENERAL
DECLARATION OF MARTIAL LAW WAS JUSTIFIED.  BUT IT DOES NOT FOLLOW FROM
THESE ASSUMPTIONS THAT THE MILITARY WAS FREE UNDER THE CONSTITUTION TO
CLOSE THE CIVIL COURTS OR TO STRIP THEM OF THEIR CRIMINAL JURISDICTION,
ESPECIALLY AFTER THE INITIAL SHOCK OF THE SUDDEN JAPANESE ATTACK HAD
BEEN DISSIPATED. 

FROM TIME IMMEMORIAL DESPOTS HAVE USED REAL OR IMAGINED THREATS TO THE
PUBLIC WELFARE AS AN EXCUSE FOR NEEDLESSLY ABROGATING HUMAN RIGHTS. 
THAT EXCUSE IS NO LESS UNWORTHY OF OUR TRADITIONS WHEN USED IN THIS DAY
OF ATOMIC WARFARE OR AT A FUTURE TIME WHEN SOME OTHER TYPE OF WARFARE
MAY BE DEVISED.  THE RIGHT TO JURY TRIAL AND THE OTHER CONSTITUTIONAL
RIGHTS OF AN ACCUSED INDIVIDUAL ARE TOO FUNDAMENTAL TO BE SACRIFICED
MERELY THROUGH A REASONABLE FEAR OF MILITARY ASSAULT.  THERE MUST BE
SOME OVERPOWERING FACTOR THAT MAKES A RECOGNITION OF THOSE RIGHTS
INCOMPATIBLE WITH THE PUBLIC SAFETY BEFORE WE SHOULD CONSENT TO THEIR
TEMPORARY SUSPENSION.  IF THOSE RIGHTS MAY SAFELY BE RESPECTED IN THE
FACE OF A THREATENED INVASION, NO VALID REASON EXISTS FOR DISREGARDING
THEM.  IN OTHER WORDS, THE CIVIL COURTS MUST BE UTTERLY INCAPABLE OF
TRYING CRIMINALS OR OF DISPENSING JUSTICE IN THEIR USUAL MANNER BEFORE
THE BILL OF RIGHTS MAY BE TEMPORARILY SUSPENDED.  "MARTIAL LAW (IN
RELATION TO CLOSING THE COURTS) CANNOT ARISE FROM A THREATENED
INVASION.  THE NECESSITY MUST BE ACTUAL AND PRESENT; THE INVASION REAL,
SUCH AS EFFECTUALLY CLOSES THE COURTS AND DEPOSES THE CIVIL
ADMINISTRATION."  EX PARTE MILLIGAN, SUPRA, 127. 

SECOND.  DELAYS IN THE CIVIL COURTS AND SLOWNESS IN THEIR PROCEDURE
ARE ALSO CITED AS AN EXCUSE FOR SHEARING AWAY THEIR CRIMINAL
JURISDICTION, ALTHOUGH LACK OF KNOWLEDGE OF ANY UNDUE DELAYS IN THE
HAWAIIAN COURTS IS ADMITTED.  IT IS SAID THAT THE MILITARY "CANNOT
BROOK A DELAY" AND THAT "THE PUNISHMENT MUST BE SWIFT; THERE IS AN
ELEMENT OF TIME IN IT, AND WE CANNOT AFFORD TO LET THE TRIAL LINGER AND
BE PROTRACTED."  THIS MILITARY ATTITUDE TOWARD CONSTITUTIONAL PROCESSES
IS NOT NOVEL.  CIVIL LIBERTIES AND MILITARY EXPEDIENCY ARE OFTEN
IRRECONCILABLE.  IT DOES TAKE TIME TO SECURE A GRAND JURY INDICTMENT,
TO ALLOW THE ACCUSED TO PROCURE AND CONFER WITH COUNSEL, TO PERMIT THE
PREPARATION OF A DEFENSE, TO FORM A PETIT JURY, TO RESPECT THE
ELEMENTARY RULES OF PROCEDURE AND EVIDENCE AND TO JUDGE GUILT OR
INNOCENCE ACCORDING TO ACCEPTED RULES OF LAW.  BUT EXPERIENCE HAS
DEMONSTRATED THAT SUCH TIME IS WELL SPENT.  IT IS THE ONLY METHOD WE
HAVE OF INSURING THE PROTECTION OF CONSTITUTIONAL RIGHTS AND OF
GUARDING AGAINST OPPRESSION.  THE SWIFT TRIAL AND PUNISHMENT WHICH THE
MILITARY DESIRES IS PRECISELY WHAT THE BILL OF RIGHTS OUTLAWS.  WE
WOULD BE FALSE TO OUR TRUST IF WE ALLOWED THE TIME IT TAKES TO GIVE
EFFECT TO CONSTITUTIONAL RIGHTS TO BE USED AS THE VERY REASON FOR
TAKING AWAY THOSE RIGHTS.  IT IS OUR DUTY, AS WELL AS THAT OF THE
MILITARY, TO MAKE SURE THAT SUCH RIGHTS ARE RESPECTED WHENEVER
POSSIBLE, EVEN THOUGH TIME MAY BE CONSUMED. 

THIRD.  IT IS FURTHER SAID THAT THE ISSUANCE OF MILITARY ORDERS
RELATING TO CIVILIANS REQUIRED THAT THE MILITARY HAVE AT ITS DISPOSAL
SOME SORT OF TRIBUNAL TO ENFORCE THOSE REGULATIONS.  ANY FAILURE OF
CIVIL COURTS TO CONVICT VIOLATORS OF SUCH REGULATIONS WOULD DIMINISH
THE AUTHORITY AND ABILITY TO DISCHARGE MILITARY RESPONSIBILITIES.  THIS
IS THE ULTIMATE AND MOST VICIOUS OF THE ARGUMENTS USED TO JUSTIFY
MILITARY TRIALS.  IT ASSUMES WITHOUT PROOF THAT CIVIL COURTS ARE
INCOMPETENT AND ARE PRONE TO FREE THOSE WHO ARE PLAINLY GUILTY.  IT
ASSUMES FURTHER THAT BECAUSE THE MILITARY MAY HAVE THE VALID POWER TO
ISSUE REGULATIONS THERE MUST BE AN ACCOMPANYING POWER TO PUNISH THE
VIOLATIONS OF THOSE REGULATIONS; THE IMPLICIT AND FINAL ASSUMPTION IS
THEN MADE THAT THE MILITARY MUST HAVE POWER TO PUNISH VIOLATIONS OF ALL
OTHER STATUTES AND REGULATIONS.  NOTHING IS MORE INCONSISTENT WITH OUR
FORM OF GOVERNMENT, WITH ITS DISTINCTION BETWEEN THE POWER TO
PROMULGATE LAW AND THE POWER TO PUNISH VIOLATIONS OF THE LAW. 
APPLICATION OF THIS DOCTRINE COULD SOON LEAD TO THE COMPLETE
ELIMINATION OF CIVIL JURISDICTION OVER CRIME. 

MOREOVER, THE MERE FACT THAT IT MAY BE MORE EXPEDIENT AND CONVENIENT
FOR THE MILITARY TO TRY VIOLATORS OF ITS OWN ORDERS BEFORE ITS OWN
TRIBUNALS DOES NOT AND SHOULD NOT FURNISH A CONSTITUTIONAL BASIS FOR
THE JURISDICTION OF SUCH TRIBUNALS WHEN CIVIL COURTS ARE IN FACT
FUNCTIONING OR ARE CAPABLE OF FUNCTIONING.  CONSTITUTIONAL RIGHTS ARE
ROOTED DEEPER THAN THE WISHES AND DESIRES OF THE MILITARY.    FOURTH.
MUCH IS MADE OF THE ASSERTION THAT THE CIVIL COURTS IN HAWAII HAD NO
JURISDICTION OVER VIOLATIONS OF MILITARY ORDERS BY CIVILIANS AND THAT
MILITARY COURTS WERE THEREFORE NECESSARY.  ASIDE FROM THE FACT THAT THE
CIVIL COURTS WERE ORDERED NOT TO ATTEMPT TO EXERCISE SUCH JURISDICTION,
IT IS SUFFICIENT TO NOTE THAT CONGRESS ON MARCH 21, 1942, VESTED IN THE
FEDERAL COURTS JURISDICTION TO ENFORCE MILITARY ORDERS WITH CRIMINAL
PENALTIES.  56 STAT. 173.  IT IS UNDISPUTED THAT THE FEDERAL COURT IN
HAWAII WAS OPEN AT ALL TIMES IN ISSUE AND WAS CAPABLE OF EXERCISING
CRIMINAL JURISDICTION.  THAT THE MILITARY REFRAINED FROM USING THE
STATUTORY FRAMEWORK WHICH CONGRESS ERECTED AFFORDS NO CONSTITUTIONAL
JUSTIFICATION FOR THE CREATION OF MILITARY TRIBUNALS TO TRY SUCH
VIOLATORS. 

FIFTH.  OBJECTION IS MADE TO THE ENFORCEMENT IN CIVIL COURTS OF
MILITARY ORDERS ON THE GROUND THAT IT WOULD SUBJECT THE MILITARY TO
"ALL SORTS OF INFLUENCES, POLITICAL AND OTHERWISE, AS HAPPENED IN THE
CASES ON THE EAST COAST IN BOTH PHILADELPHIA AND BOSTON" AND THAT "IT
IS INCONCEIVABLE THAT THE MILITARY COMMANDER SHOULD BE SUBJECTED FOR
THE ENFORCEMENT OF HIS ORDERS TO THE CONTROL OF OTHER AGENTS."  THIS IS
MERELY A MILITARY CRITICISM OF THE PROPOSITION THAT IN THIS NATION THE
MILITARY IS SUBORDINATE TO THE CIVIL AUTHORITY.  IT DOES NOT QUALIFY AS
A RECOGNIZABLE REASON FOR CLOSING THE CIVIL COURTS TO CRIMINAL CASES. 

SIXTH.  FURTHER OBJECTION IS MADE THAT THE HOLDING OF CIVIL TRIALS
MIGHT INTERRUPT VITAL WORK THROUGH THE ATTENDANCE AS JURORS OF WAR
WORKERS.  THIS ALSO IS TOO UNMERITORIOUS TO WARRANT SERIOUS OR LENGTHY
DISCUSSION.  WAR WORKERS COULD EASILY HAVE BEEN EXCUSED FROM JURY DUTY
BY MILITARY ORDER IF NECESSARY. 

SEVENTH.  THE FINAL REASON ADVANCED RELATES TO THE TESTIMONY OF
MILITARY LEADERS THAT HAWAII IS SAID TO HAVE A "HETEROGENEOUS
POPULATION WITH ALL SORTS OF AFFINITIES AND LOYALTIES WHICH ARE ALIEN
IN MANY CASES TO THE PHILOSOPHY OF LIFE OF THE AMERICAN GOVERNMENT,"
ONE-THIRD OF THE CIVILIAN POPULATION BEING OF JAPANESE DESCENT.  THE
COURT BELOW OBSERVED, 146 F.2D 576, 580, THAT "GOVERNMENTAL AND
MILITARY PROBLEMS ALIKE WERE COMPLICATED BY THE PRESENCE IN THE
TERRITORY OF TENS OF THOUSANDS OF CITIZENS OF JAPANESE ANCESTRY BESIDES
LARGE NUMBERS OF ALIENS OF THE SAME RACE.  OBVIOUSLY THE PRESENCE OF SO
MANY INHABITANTS OF DOUBTFUL LOYALTY POSED A CONTINUING THREAT TO THE
PUBLIC SECURITY.  AMONG THESE PEOPLE THE PERSONNEL OF CLANDESTINE
LANDING PARTIES MIGHT MINGLE FREELY, WITHOUT DETECTION.  THUS WAS
AFFORDED IDEAL COVER FOR THE ACTIVITIES OF THE SABOTEUR AND THE SPY....
TO FUNCTION IN CRIMINAL MATTERS THE CIVILIAN COURTS MUST ASSEMBLE
JURIES; AND CITIZENS OF JAPANESE EXTRACTION COULD NOT LAWFULLY BE
EXCLUDED FROM JURY PANELS ON THE SCORE OF RACE - EVEN IN CASES OF
OFFENSES INVOLVING THE MILITARY SECURITY OF THE TERRITORY.  INDEED THE
MERE ASSEMBLING OF JURIES AND THE CARRYING ON OF PROTRACTED CRIMINAL
TRIALS MIGHT WELL CONSTITUTE AN INVITATION TO DISORDER AS WELL AS AN
INTERFERENCE WITH THE VITAL BUSINESS OF THE MOMENT."  THE GOVERNMENT
ADDS THAT MANY OF THE MILITARY PERSONNEL STATIONED IN HAWAII WERE
UNACCUSTOMED TO LIVING IN SUCH A COMMUNITY AND THAT "POTENTIAL
PROBLEMS" CREATED IN HAWAII BY RACIALLY MIXED JURIES IN CRIMINAL CASES
HAVE HERETOFORE BEEN RECOGNIZED "ALTHOUGH, ON THE WHOLE, IT HAS BEEN
FOUND THAT MEMBERS OF SUCH MIXED JURIES HAVE NOT ACTED ON A RACIAL
BASIS." 

THE IMPLICATION APPARENTLY IS THAT PERSONS OF JAPANESE DESCENT,
INCLUDING THOSE OF AMERICAN BACKGROUND AND TRAINING, ARE OF SUCH
DOUBTFUL LOYALTY AS A GROUP AS TO CONSTITUTE A MENACE JUSTIFYING THE
DENIAL OF THE PROCEDURAL RIGHTS OF ALL ACCUSED PERSONS IN HAWAII.  IT
IS ALSO IMPLIED THAT PERSONS OF JAPANESE DESCENT ARE UNFIT FOR JURY
DUTY IN HAWAII AND THAT THE PROBLEMS ARISING WHEN THEY SERVE ON JURIES
ARE SO GREAT AS TO WARRANT DISPENSING WITH THE ENTIRE JURY SYSTEM IN
HAWAII IF THE MILITARY SO DESIRES.  THE LACK OF ANY FACTUAL OR LOGICAL
BASIS FOR SUCH IMPLICATIONS IS CLEAR.  IT IS A KNOWN FACT THAT THERE
HAVE BEEN NO RECORDED ACTS OF SABOTAGE, ESPIONAGE OR FIFTH COLUMN
ACTIVITIES BY PERSONS OF JAPANESE DESCENT IN HAWAII EITHER ON OR
SUBSEQUENT TO DECEMBER 7, 1941.  THERE WAS THUS NO SECURITY REASON FOR
EXCLUDING THEM FROM JURIES, EVEN MAKING THE FALSE ASSUMPTION THAT IT
WAS IMPOSSIBLE TO SEPARATE THE LOYAL FROM THE DISLOYAL.  AND IF THERE
WERE PROBLEMS ARISING FROM THE USE OF RACIALLY MIXED JURIES,
ELIMINATION OF ALL JURY TRIALS WAS HARDLY A REASONABLE OR SENSIBLE
ANSWER TO THOSE PROBLEMS.  ESPECIALLY DEPLORABLE, HOWEVER, IS THIS USE
OF THE INIQUITOUS DOCTRINE OF RACISM TO JUSTIFY THE IMPOSITION OF
MILITARY TRIALS.  RACISM HAS NO PLACE WHATEVER IN OUR CIVILIZATION. 
THE CONSTITUTION AS WELL AS THE CONSCIENCE OF MANKIND DISCLAIMS ITS USE
FOR ANY PURPOSE, MILITARY OR OTHERWISE.  IT CAN ONLY RESULT, AS IT DOES
IN THIS INSTANCE, IN STRIKING DOWN INDIVIDUAL RIGHTS AND IN AGGRAVATING
RATHER THAN SOLVING THE PROBLEMS TOWARD WHICH IT IS DIRECTED.  IT
RENDERS IMPOTENT THE IDEAL OF THE DIGNITY OF THE HUMAN PERSONALITY,
DESTROYING SOMETHING OF WHAT IS NOBLE IN OUR WAY OF LIFE.  WE MUST
THEREFORE REJECT IT COMPLETELY WHENEVER IT ARISES IN THE COURSE OF A
LEGAL PROCEEDING. 

THE REASONS HERE ADVANCED FOR ABANDONING THE "OPEN COURT" RULE OF THE
MILLIGAN CASE ARE WITHOUT SUBSTANCE.  TO RETREAT FROM THAT RULE IS TO
OPEN THE DOOR TO RAMPANT MILITARISM AND THE GLORIFICATION OF WAR, WHICH
HAVE DESTROYED SO MANY NATIONS IN HISTORY.  THERE IS A VERY NECESSARY
PART IN OUR NATIONAL LIFE FOR THE MILITARY; IT HAS DEFENDED THIS
COUNTRY WELL IN ITS DARKEST HOURS OF TRIAL.  BUT MILITARISM IS NOT OUR
WAY OF LIFE.  IT IS TO BE USED ONLY IN THE MOST EXTREME CIRCUMSTANCES. 
MOREOVER, WE MUST BE ON CONSTANT GUARD AGAINST AN EXCESSIVE USE OF ANY
POWER, MILITARY OR OTHERWISE, THAT RESULTS IN THE NEEDLESS DESTRUCTION
OF OUR RIGHTS AND LIBERTIES.  THERE MUST BE A CAREFUL BALANCING OF
INTERESTS.  AND WE MUST EVER KEEP IN MIND THAT "THE CONSTITUTION OF THE
UNITED STATES IS A LAW FOR RULERS AND PEOPLE, EQUALLY IN WAR AND IN
PEACE, AND COVERS WITH THE SHIELD OF ITS PROTECTION ALL CLASSES OF MEN,
AT ALL TIMES, AND UNDER ALL CIRCUMSTANCES."  EX PARTE MILLIGAN, SUPRA,
120-121. 

MR. CHIEF JUSTICE STONE, CONCURRING. 

I CONCUR IN THE RESULT. 

I DO NOT THINK THAT "MARTIAL LAW," AS USED IN SEC. 67 OF THE HAWAIIAN
ORGANIC ACT, IS DEVOID OF MEANING.  THIS COURT HAS HAD OCCASION TO
CONSIDER ITS SCOPE AND HAS POINTED OUT THAT MARTIAL LAW IS THE EXERCISE
OF THE POWER WHICH RESIDES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT TO
PRESERVE ORDER AND INSURE THE PUBLIC SAFETY IN TIMES OF EMERGENCY, WHEN
OTHER BRANCHES OF THE GOVERNMENT ARE UNABLE TO FUNCTION, OR THEIR
FUNCTIONING WOULD ITSELF THREATEN THE PUBLIC SAFETY.  LUTHER V. BORDEN,
7 HOW.  1, 45.  IT IS A LAW OF NECESSITY TO BE PRESCRIBED AND
ADMINISTERED BY THE EXECUTIVE POWER.  ITS OBJECT, THE PRESERVATION OF
THE PUBLIC SAFETY AND GOOD ORDER, DEFINES ITS SCOPE, WHICH WILL VARY
WITH THE CIRCUMSTANCES AND NECESSITIES OF THE CASE.  THE EXERCISE OF
THE POWER MAY NOT EXTEND BEYOND WHAT IS REQUIRED BY THE EXIGENCY WHICH
CALLS IT FORTH.  MITCHELL V. HARMONY, 13 HOW.  115, 133; UNITED STATES
V. RUSSELL, 13 WALL.  623, 628; RAYMOND V. THOMAS, 91 U.S. 712, 716;
STERLING V. CONSTANTIN, 287 U.S. 378, 400, 401.  ANY DOUBTS THAT MIGHT
BE ENTERTAINED THAT SUCH IS THE TRUE LIMIT OF MARTIAL LAW IN THIS CASE
ARE PUT AT REST BY SEC. 67 OF THE HAWAIIAN ORGANIC ACT, WHICH, "IN CASE
OF REBELLION OR INVASION, OR IMMINENT DANGER THEREOF," AUTHORIZES
MARTIAL LAW ONLY "WHEN THE PUBLIC SAFETY REQUIRES IT  ..." 

THE EXECUTIVE HAS BROAD DISCRETION IN DETERMINING WHEN THE PUBLIC
EMERGENCY IS SUCH AS TO GIVE RISE TO THE NECESSITY OF MARTIAL LAW, AND
IN ADAPTING IT TO THE NEED.  CF. HIRABAYASHI V. UNITED STATES, 320 U.S.
81.  BUT EXECUTIVE ACTION IS NOT PROOF OF ITS OWN NECESSITY, AND THE
MILITARY'S JUDGMENT HERE IS NOT CONCLUSIVE THAT EVERY ACTION TAKEN
PURSUANT TO THE DECLARATION OF MARTIAL LAW WAS JUSTIFIED BY THE
EXIGENCY.  IN THE SUBSTITUTION OF MARTIAL LAW CONTROLS FOR THE ORDINARY
CIVIL PROCESSES, "WHAT ARE THE ALLOWABLE LIMITS OF MILITARY DISCRETION,
AND WHETHER OR NOT THEY HAVE BEEN OVERSTEPPED IN A PARTICULAR CASE, ARE
JUDICIAL QUESTIONS."  STERLING V. CONSTANTIN, SUPRA, 401. 

I TAKE IT THAT THE JAPANESE ATTACK ON HAWAII ON DECEMBER 7, 1941, WAS
AN "INVASION" WITHIN THE MEANING OF SEC. 67.  BUT IT BEGAN AND ENDED
LONG BEFORE THESE PETITIONERS WERE TRIED BY MILITARY TRIBUNALS IN
AUGUST 1942 AND FEBRUARY 1944.  I ASSUME THAT THERE WAS DANGER OF
FURTHER INVASION OF HAWAII AT THE TIMES OF THOSE TRIALS.  I ASSUME ALSO
THAT THERE COULD BE CIRCUMSTANCES IN WHICH THE PUBLIC SAFETY REQUIRES,
AND THE CONSTITUTION PERMITS, SUBSTITUTION OF TRIALS BY MILITARY
TRIBUNALS FOR TRIALS IN THE CIVIL COURTS.  BUT THE RECORD HERE
DISCLOSES NO SUCH CONDITIONS IN HAWAII, AT LEAST DURING THE PERIOD
AFTER FEBRUARY, 1942, AND THE TRIAL COURT SO FOUND.  AFTER CLOSING
PLACES OF AMUSEMENT, AND AFTER CLOSING THE CIVIL COURTS ON DECEMBER 8,
1941, THE MILITARY AUTHORITIES, ON DECEMBER 24, 1941, ORDERED PLACES OF
AMUSEMENT TO BE OPENED.  ON JANUARY 27, 1942, THEY PERMITTED THE COURTS
TO EXERCISE THEIR NORMAL FUNCTIONS EXCEPT AS TO JURY TRIALS AND THE
ISSUANCE OF WRITS OF HABEAS CORPUS.  ON FEBRUARY 4, 1942, THEY
AUTHORIZED THE SALE OF LIQUOR AT BARS. 

THE FULL RECORD IN THIS CASE SHOWS THE CONDITIONS PREVAILING IN
HAWAII THROUGHOUT 1942 AND 1943.  IT DEMONSTRATES THAT FROM FEBRUARY
1942 ON, THE CIVIL COURTS WERE CAPABLE OF FUNCTIONING, AND THAT TRIALS
OF PETITIONERS IN THE CIVIL COURTS NO MORE ENDANGERED THE PUBLIC SAFETY
THAN THE GATHERING OF THE POPULACE IN SALOONS AND PLACES OF AMUSEMENT,
WHICH WAS AUTHORIZED BY MILITARY ORDER.  I FIND NOTHING IN THE ENTIRE
RECORD WHICH WOULD FAIRLY SUGGEST THAT THE CIVIL COURTS WERE UNABLE TO
FUNCTION WITH THEIR USUAL EFFICIENCY AT THE TIMES THESE PETITIONERS
WERE TRIED, OR THAT THEIR TRIAL BY JURY IN A CIVIL COURT WOULD HAVE
ENDANGERED GOOD ORDER OR THE PUBLIC SAFETY.  THE GOVERNOR OF HAWAII AND
THE CHIEF JUSTICE OF THE HAWAIIAN SUPREME COURT TESTIFIED TO THE
CONTRARY.  THE MILITARY AUTHORITIES THEMSELVES TESTIFIED AND ADVANCED
NO REASON WHICH HAS ANY BEARING ON PUBLIC SAFETY OR GOOD ORDER FOR
CLOSING THE CIVIL COURTS TO THE TRIAL OF THESE PETITIONERS, OR FOR
TRYING THEM IN MILITARY COURTS.  I CAN ONLY CONCLUDE THAT THE TRIALS
AND THE CONVICTIONS UPON WHICH PETITIONERS ARE NOW DETAINED, WERE
UNAUTHORIZED BY THE STATUTE, AND WITHOUT LAWFUL AUTHORITY. 

WE HAVE NO OCCASION TO CONSIDER WHETHER THE ARREST AND DETENTION OF
PETITIONERS BY THE MILITARY AUTHORITIES, PENDING THEIR DELIVERY TO THE
CIVIL AUTHORITIES FOR TRIAL, WOULD HAVE BEEN LAWFUL.  THE JUDGMENT OF
THE CIRCUIT COURT OF APPEALS SHOULD BE REVERSED AND THE PETITIONERS
DISCHARGED FROM CUSTODY FORTHWITH. 

MR. JUSTICE BURTON, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING. 

WITH THE REST OF THIS COURT I SUBSCRIBE UNRESERVEDLY TO THE BILL OF
RIGHTS.  I RECOGNIZE THE IMPORTANCE OF THE CIVIL COURTS IN PROTECTING
INDIVIDUAL RIGHTS GUARANTEED BY THE CONSTITUTION.  I PREFER CIVIL TO
MILITARY CONTROL OF CIVILIAN LIFE AND I AGREE THAT IN WAR OUR
CONSTITUTION CONTEMPLATES THE PRESERVATION OF THE INDIVIDUAL RIGHTS OF
ALL OF OUR PEOPLE IN ACCORDANCE WITH A PLAN OF CONSTITUTIONAL PROCEDURE
FITTED TO THE NEEDS OF A SELF-GOVERNING REPUBLIC AT WAR. 

OUR CONSTITUTION EXPRESSLY PROVIDES FOR WAGING WAR, AND IT IS WITH
THE CONSTITUTIONAL INSTRUMENTS FOR THE SUCCESSFUL CONDUCT OF WAR THAT I
AM CONCERNED.  I RECOGNIZE HERE, AS ELSEWHERE, THE CONSTITUTIONAL
DIRECTION THAT OUR RESPECTIVE BRANCHES OF THE GOVERNMENT DO NOT EXCEED
THEIR ALLOTTED SHARES OF AUTHORITY.  THE COURTS, AS WELL AS OUR OTHER
AGENCIES OF THE GOVERNMENT, ACCORDINGLY OWE A CONSTITUTIONAL OBLIGATION
NOT TO INVADE THE FIELDS RESERVED EITHER TO THE PEOPLE, THE STATES, OR
THE OTHER COORDINATE BRANCHES OF THE GOVERNMENT.  THE COURTS HAVE AN
OBLIGATION TO HELP DEFINE AND PROTECT THE DISCRETION WITH WHICH THE
PEOPLE HAVE INVESTED THEIR LEGISLATIVE AND EXECUTIVE REPRESENTATIVES. 
WITHIN THEIR PROPER SPHERES, THE ROBUST STRENGTH AND FREEDOM OF ACTION
ALLOWED TO THE POLICY MAKING AND POLICY EXECUTING AGENCIES OF OUR
GOVERNMENT ARE AS VITAL TO THE SUCCESS OF OUR GREAT EXPERIMENT IN
SECURING "THE BLESSINGS OF LIBERTY TO OURSELVES AND OUR POSTERITY" AS
ARE THE CHECKS AND BALANCES WHICH HAVE BEEN IMPOSED UPON OUR
REPRESENTATIVES.  IT IS IN THE APPLICATION OF THESE VIEWS TO THE CASES
BEFORE US THAT I AM OBLIGED TO DISSENT FROM THE MAJORITY OF THIS COURT
AND TO SOUND A NOTE OF WARNING AGAINST THE DANGERS OF OVER-EXPANSION OF
JUDICIAL CONTROL INTO THE FIELDS ALLOTTED BY THE CONSTITUTION TO
AGENCIES OF LEGISLATIVE AND EXECUTIVE ACTION. 

THE CONTROLLING FACTS IN THE CASES BEFORE US ARE THE EXTRAORDINARY
CONDITIONS CREATED BY THE SURPRISE JAPANESE INVASION BY AIR OF PEARL
HARBOR ON DECEMBER 7, 1941.  VISUALIZING THE DEVASTATING SUCCESS OF
THAT ATTACK AND THE DESPERATE CONDITIONS RESULTING FROM IT, THE PRIMARY
QUESTION IS WHAT DISCRETIONARY ACTION BY THE EXECUTIVE BRANCH OF OUR
GOVERNMENT, INCLUDING THE ARMY AND NAVY, WAS PERMISSIBLE ON THAT DAY
AND IN THE PERIOD FOLLOWING IT.  PEARL HARBOR AND THE HAWAIIAN ISLANDS
WERE THE KEY TO AMERICA'S DEFENSES IN THE PACIFIC.  THE ATTACK OF
DECEMBER 7TH DESTROYED MORE OF AMERICA'S NAVAL FORCES THAN OUR
GOVERNMENT FELT IT SAFE TO ANNOUNCE.  AMERICA'S FIRST LINE OF DEFENSE
WAS PIERCED.  THE ATTACK DEMONSTRATED THAT IT WAS PART OF A CAREFULLY
PLANNED MAJOR MILITARY OPERATION AGAINST NOT ONLY HAWAII BUT THE UNITED
STATES.  PRESUMABLY IT WOULD BE PRESSED FURTHER.  IT MIGHT WELL BE
FOLLOWED BY A LAND INVASION OF THE ISLANDS AND BY AERIAL ATTACKS UPON
THEIR CENTERS OF POPULATION.  FN1 

HANDICAPPED BY MAJOR LOSSES OF AIR AND SEA POWER, THE COMMANDER OF
THIS ISOLATED OUTPOST WAS FACED WITH IMMINENT DANGER OF FURTHER
INVASIONS UNDER CONDITIONS CALLING FOR A DESPERATE DEFENSE OF THE
ISLANDS.  THE ISLANDS SUDDENLY HAD BECOME THE FOCAL POINT OF A MAJOR
ACTION WHICH CONVERTED THEM INTO AN OUTPOST OF CRITICAL MILITARY
IMPORTANCE TO THE WORLD IN GENERAL AND TO THE UNITED STATES IN
PARTICULAR.  THEIR INVASION AND POSSIBLE CAPTURE OVERSHADOWED EVERY
OTHER CONSIDERATION.  THE ISLANDS WERE A WHITE-HOT CENTER OF WAR READY
TO BURST INTO FLAMES.    MILITARY ATTACK BY AIR, SEA AND LAND WAS TO BE
EXPECTED.  THE COMPLETE DISREGARD OF INTERNATIONAL LAW EVIDENCED BY THE
FIRST ATTACK AND THE POSSIBLE PRESENCE ON THE ISLANDS OF MANY JAPANESE
COLLABORATORS GAVE WARNING THAT THE ENEMY'S NEXT MOVE MIGHT TAKE THE
FORM OF DISASTROUS SABOTAGE AND TERRORISM AMONG CIVILIANS.  THE
EXTRAORDINARY BREACH OF INTERNATIONAL LAW EVIDENCED BY THE ATTACK MADE
IT ESSENTIAL TO TAKE EXTRAORDINARY STEPS TO PROTECT THE ISLANDS AGAINST
SUBVERSIVE ACTION THAT MIGHT SPRING FROM DEEPLY LAID PLANS AS SECRET,
WELL AIMED, AND DESTRUCTIVE AS THE ORIGINAL ATTACK. 

ON DECEMBER 7 AND IN THE PERIOD IMMEDIATELY FOLLOWING, EVERY INCH OF
THE TERRITORY OF HAWAII WAS LIKE A FRONTIER STOCKADE UNDER SAVAGE
ATTACK WITH NOTICE THAT SUCH ATTACK WOULD NOT BE RESTRAINED BY THE LAWS
OF CIVILIZED NATIONS.  FN2  MEASURES OF DEFENSE HAD TO BE TAKEN ON THE
BASIS THAT ANYTHING COULD HAPPEN.  THE RELATION OF THE CONSTITUTION OF
THE UNITED STATES TO SUCH A SITUATION IS IMPORTANT.  OF COURSE, THE
CONSTITUTION IS NOT PUT ASIDE.  IT WAS WRITTEN BY A GENERATION FRESH
FROM WAR.  THE PEOPLE ESTABLISHED A MORE PERFECT UNION, IN PART, SO
THAT THEY MIGHT THE BETTER DEFEND THEMSELVES FROM MILITARY ATTACK.  IN
DOING SO THEY CENTRALIZED FAR MORE MILITARY POWER AND RESPONSIBILITY IN
THE CHIEF EXECUTIVE THAN PREVIOUSLY HAD BEEN DONE.  THE CONSTITUTION
WAS BUILT FOR ROUGH AS WELL AS SMOOTH ROADS.  IN TIME OF WAR THE NATION
SIMPLY CHANGES GEARS AND TAKES THE HARDER GOING UNDER THE SAME POWER. 

THE CONDUCT OF WAR UNDER THE CONSTITUTION IS LARGELY AN EXECUTIVE
FUNCTION.  WITHIN THE FIELD OF MILITARY ACTION IN TIME OF WAR, THE
EXECUTIVE IS ALLOWED WIDE DISCRETION.  WHILE, EVEN IN THE CONDUCT OF
WAR, THERE ARE MANY LINES OF JURISDICTION TO DRAW BETWEEN THE PROPER
SPHERES OF LEGISLATIVE, EXECUTIVE AND JUDICIAL ACTION, IT SEEMS CLEAR
THAT AT LEAST ON AN ACTIVE BATTLE FIELD, THE EXECUTIVE DISCRETION TO
DETERMINE POLICY IS THERE INTENDED BY THE CONSTITUTION TO BE SUPREME. 
THE QUESTION THEN ARISES:  WHAT IS A BATTLE FIELD AND HOW LONG DOES IT
REMAIN ONE AFTER THE FIRST BARRAGE? 

IT IS WELL THAT THE OUTER LIMITS OF THE JURISDICTION OF OUR MILITARY
AUTHORITIES IS SUBJECT TO REVIEW BY OUR COURTS EVEN UNDER SUCH EXTREME
CIRCUMSTANCES AS THOSE OF THE BATTLE FIELD.  THIS, HOWEVER, REQUIRES
THE COURTS TO PUT THEMSELVES AS NEARLY AS POSSIBLE IN THE PLACE OF
THOSE WHO HAD THE CONSTITUTIONAL RESPONSIBILITY FOR IMMEDIATE EXECUTIVE
ACTION.  FOR A COURT TO RECREATE A COMPLETE PICTURE OF THE EMERGENCY IS
IMPOSSIBLE.  THAT IMPOSSIBILITY DEMONSTRATES THE NEED FOR A ZONE OF
EXECUTIVE DISCRETION WITHIN WHICH COURTS MUST GUARD THEMSELVES WITH
SPECIAL CARE AGAINST JUDGING PAST MILITARY ACTION TOO CLOSELY BY THE
INAPPLICABLE STANDARDS OF JUDICIAL, OR EVEN MILITARY, HINDSIGHT.  THE
NATURE OF JUDICIAL AUTHORITY IS LARGELY NEGATIVE AS CONTRASTED WITH THE
GENERALLY POSITIVE NATURE OF EXECUTIVE AUTHORITY, AND IT IS ESSENTIAL
THAT THE OPPORTUNITY FOR WELL DIRECTED POSITIVE ACTION BE PRESERVED AND
VIGOROUSLY USED IF THE GOVERNMENT IS TO SERVE THE BEST INTERESTS OF THE
PEOPLE. 

FOR THIS COURT TO INTRUDE ITS JUDGMENT INTO SPHERES OF CONSTITUTIONAL
DISCRETION THAT ARE RESERVED EITHER TO THE CONGRESS OR TO THE CHIEF
EXECUTIVE, IS TO INVITE DISREGARD OF THAT JUDGMENT BY THE CONGRESS OR
BY EXECUTIVE AGENCIES UNDER A CLAIM OF CONSTITUTIONAL RIGHT TO DO SO.
ON THE OTHER HAND, THIS COURT CAN CONTRIBUTE MUCH TO THE ORDERLY
CONDUCT OF GOVERNMENT, IF IT WILL OUTLINE REASONABLE BOUNDARIES FOR THE
DISCRETION OF THE RESPECTIVE DEPARTMENTS OF THE GOVERNMENT, WITH FULL
REGARD FOR THE LIMITATIONS AND ALSO FOR THE RESPONSIBILITIES IMPOSED
UPON THEM BY THE CONSTITUTION. 

IT IS IMPORTANT TO APPROACH THE PRESENT CASES WITH A FULL
APPRECIATION OF THE RESPONSIBILITY OF THE EXECUTIVE BRANCH OF THE
GOVERNMENT IN HAWAII UNDER THE INVASION WHICH OCCURRED ON DECEMBER 7,
1941.  THE QUESTION IS NOT SHALL THE CONSTITUTION APPLY UNDER SUCH
CIRCUMSTANCES?  THE QUESTION IS WITH WHAT AUTHORITY HAS THE
CONSTITUTION AND LAWS OF THIS COUNTRY VESTED THE OFFICIAL
REPRESENTATIVES OF THE PEOPLE UPON WHOM ARE PLACED THE RESPONSIBILITIES
OF LEADERSHIP UNDER THOSE EXTRAORDINARY CIRCUMSTANCES? 

THE VITAL DISTINCTION IS BETWEEN CONDITIONS IN "THE THEATRE OF ACTUAL
MILITARY OPERATIONS" AND OUTSIDE OF THAT THEATRE.  FN3  IN THIS CASE
HAWAII WAS NOT ONLY IN THE THEATRE OF OPERATIONS, IT WAS UNDER FIRE. 
IF THE TERRITORY OF HAWAII, ON THAT DATE AND DURING THE IMMEDIATELY
SUCCEEDING PERIOD, IS RECOGNIZED AS THE BATTLE FIELD IT WAS, THEN UNDER
SUCH CIRCUMSTANCES OF INVASION AND THREAT OF IMMEDIATE FURTHER
INVASION, THE ACTIONS TAKEN BY THE GOVERNOR OF HAWAII AND BY THE
COMMANDING GENERAL OF THE HAWAIIAN DEPARTMENT, SUPPORTED BY THE
PRESIDENT OF THE UNITED STATES, IN SUSPENDING THE WRIT OF HABEAS
CORPUS, DECLARING MARTIAL LAW AND VESTING IN SUCH COMMANDING GENERAL
FOR THOSE FIRST SEVERAL DAYS THE POWERS NORMALLY EXERCISED BY THE
GOVERNOR AND BY THE JUDICIAL OFFICERS AND EMPLOYEES OF THE TERRITORY
(AT LEAST TO THE EXTENT THAT WOULD BE INVOLVED IN THE PRESENT CASES IF
THEY HAD ARISEN AT THAT TIME), WERE WITHIN THE EXECUTIVE DISCRETION OF
THE OFFICIALS WHO AUTHORIZED THE ACTION.  THE ACTUAL PRESENCE OF BATTLE
IN A COMMUNITY CREATES A SUBSTANTIALLY DIFFERENT CONDITION FROM THAT
WHICH EXISTS IN OTHER PARTS OF A NATION AT WAR.  THAT CONDITIONS OF WAR
AND THE MEANS OF MEETING ITS EMERGENCIES WERE WITHIN THE CONTEMPLATION
OF THE CONSTITUTION OF THE UNITED STATES IS SHOWN BY THE BROAD
AUTHORITY VESTED IN THE PRESIDENT OF THE UNITED STATES AS CHIEF
EXECUTIVE AND AS COMMANDER IN CHIEF OF THE ARMY AND NAVY AND IN THE WAR
POWERS OF THE CONGRESS AND THE CHIEF EXECUTIVE TO PRESERVE THE SAFETY
OF THE NATION IN TIME OF WAR.  THE PRESENT CASES AROSE IN A TERRITORY
OF THE UNITED STATES, DIRECTLY UNDER THE CARE AND JURISDICTION OF THE
FEDERAL GOVERNMENT.  THAT CONDITIONS OF ACTUAL INVASION WERE
CONTEMPLATED BY CONGRESS IN THE ORGANIC ACT OF HAWAII IS SEEN FROM THE
PROVISION QUOTED IN THE MAJORITY OPINION TO THE EFFECT THAT 

"WHENEVER IT BECOMES NECESSARY  ...  (THE GOVERNOR) MAY CALL UPON THE
COMMANDERS OF THE MILITARY AND NAVAL FORCES OF THE UNITED STATES IN THE
TERRITORY OF HAWAII, OR SUMMON THE POSSE COMITATUS, OR CALL OUT THE
MILITIA OF THE TERRITORY TO PREVENT OR SUPPRESS LAWLESS VIOLENCE,
INVASION, INSURRECTION, OR REBELLION IN SAID TERRITORY, AND HE MAY, IN
CASE OF REBELLION OR INVASION, OR IMMINENT DANGER THEREOF, WHEN THE
PUBLIC SAFETY REQUIRES IT, SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS, OR PLACE THE TERRITORY, OR ANY PART THEREOF, UNDER MARTIAL LAW
UNTIL COMMUNICATION CAN BE HAD WITH THE PRESIDENT AND HIS DECISION
THEREON MADE KNOWN."  SEC. 67 OF THE HAWAIIAN ORGANIC ACT, 31 STAT.
153, 48 U.S.C. SEC. 532. 

THE GOVERNOR'S PROCLAMATION DEMONSTRATES THAT, IN SO FAR AS THE
DISCRETION LAY IN HIM, HE RECOGNIZED IN THOSE DAYS THAT A CONDITION HAD
ARISEN CALLING FOR THE EXERCISE OF THESE POWERS.  THE PROCLAMATION OF
DECEMBER 7, 1941, IN ITS EVERY WORD IS THE BEST EVIDENCE OF THE
EXERCISE OF THIS DISCRETION AND SPEAKS FOR ITSELF: 

"WHEREAS, IT IS PROVIDED BY SECTION 67 OF THE ORGANIC ACT OF THE
TERRITORY OF HAWAII, APPROVED APRIL 30, 1900, THAT, WHENEVER IT BECOMES
NECESSARY, THE GOVERNOR OF THAT TERRITORY MAY CALL UPON THE COMMANDER
OF THE MILITARY FORCES OF THE UNITED STATES IN THAT TERRITORY TO
PREVENT INVASION; AND 

"WHEREAS, IT IS FURTHER PROVIDED BY THE SAID SECTION THAT THE
GOVERNOR MAY IN CASE OF INVASION OR IMMINENT DANGER THEREOF, WHEN THE
PUBLIC SAFETY REQUIRES IT, SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS AND PLACE THE TERRITORY UNDER MARTIAL LAW; AND 

"WHEREAS, THE ARMED FORCES OF THE EMPIRE OF JAPAN HAVE THIS DAY
ATTACKED AND INVADED THE SHORES OF THE HAWAIIAN ISLANDS; AND 

"WHEREAS, IT HAS BECOME NECESSARY TO REPEL SUCH ATTACK AND INVASION;
AND 

"WHEREAS, THE PUBLIC SAFETY REQUIRES; 

"NOW, THEREFORE, I, J.B. POINDEXTER, GOVERNOR OF THE TERRITORY OF
HAWAII, DO HEREBY ANNOUNCE THAT, PURSUANT TO SAID SECTION, I HAVE
CALLED UPON THE COMMANDING GENERAL, HAWAIIAN DEPARTMENT, TO PREVENT
SUCH INVASION; 

"AND, PURSUANT TO THE SAME SECTION, I DO HEREBY SUSPEND THE PRIVILEGE
OF THE WRIT OF HABEAS CORPUS UNTIL FURTHER NOTICE; 

"AND, PURSUANT TO THE SAME SECTION, I DO HEREBY PLACE THE SAID
TERRITORY UNDER MARTIAL LAW; 

"AND, I DO HEREBY AUTHORIZE AND REQUEST THE COMMANDING GENERAL,
HAWAIIAN DEPARTMENT, DURING THE PRESENT EMERGENCY AND UNTIL THE DANGER
OF INVASION IS REMOVED, TO EXERCISE ALL THE POWERS NORMALLY EXERCISED
BY ME AS GOVERNOR; 

"AND I DO FURTHER AUTHORIZE AND REQUEST THE SAID COMMANDING GENERAL,
HAWAIIAN DEPARTMENT, AND THOSE SUBORDINATE MILITARY PERSONNEL TO WHOM
HE MAY DELEGATE SUCH AUTHORITY, DURING THE PRESENT EMERGENCY AND UNTIL
THE DANGER OF INVASION IS REMOVED, TO EXERCISE THE POWERS NORMALLY
EXERCISED BY JUDICIAL OFFICERS AND EMPLOYEES OF THIS TERRITORY AND OF
THE COUNTIES AND CITIES THEREIN, AND SUCH OTHER AND FURTHER POWERS AS
THE EMERGENCY MAY REQUIRE; 

"AND I DO REQUIRE ALL GOOD CITIZENS OF THE UNITED STATES AND ALL
OTHER PERSONS WITHIN THE TERRITORY OF HAWAII TO OBEY PROMPTLY AND
FULLY, IN LETTER AND IN SPIRIT, SUCH PROCLAMATIONS, RULES, REGULATIONS
AND ORDERS, AS THE COMMANDING GENERAL, HAWAIIAN DEPARTMENT, OR HIS
SUBORDINATES, MAY ISSUE DURING THE PRESENT EMERGENCY." 

THIS ACTION WAS COMMUNICATED BY HIM TO THE PRESIDENT AND THE
PRESIDENT'S DECISION UPON HIS ACTION WAS MADE KNOWN IN ACCORDANCE WITH
THE ORGANIC ACT OF HAWAII IN THE FOLLOWING MESSAGES:

                                      "DEC.  7, 1941 

"THE PRESIDENT THE WHITE HOUSE

 WASHINGTON D C 

I HAVE TODAY DECLARED MARTIAL LAW THROUGHOUT THE TERRITORY OF HAWAII
AND HAVE SUSPENDED THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS PERIOD
YOUR ATTENTION IS CALLED TO SECTION SIXTY SEVEN OF THE HAWAIIAN ORGANIC
ACT FOR YOUR DECISION ON MY ACTION

                          POINDEXTER"

             "DECEMBER 9, 1941 

"HONORABLE JOSEPH B. POINDEXTER, 

GOVERNOR, TERRITORY OF HAWAII, 

HONOLULU, HAWAII. 

YOUR TELEGRAM OF DECEMBER SEVENTH RECEIVED AND YOUR ACTION IN
SUSPENDING THE WRIT OF HABEAS CORPUS AND PLACING THE TERRITORY OF
HAWAII UNDER MARTIAL LAW IN ACCORDANCE WITH U.S.C., TITLE 48, SECTION
532 HAS MY APPROVAL. 

    FRANKLIN D. ROOSEVELT" 

THE DISCRETION TO DETERMINE WITHIN REASONABLE LIMITS THE EXISTENCE OF
THE EMERGENCY OF WAR CONTEMPLATED BY THE ORGANIC ACT MUST BE AN
EXECUTIVE DISCRETION.  UNDER THE CIRCUMSTANCES NOW GENERALLY KNOWN AS
TO WHAT TOOK PLACE AT PEARL HARBOR ON DECEMBER 7 AND THE SERIOUSNESS OF
THE THREAT WHICH THAT ATTACK CARRIED WITH IT, NOT ONLY TO THE PEOPLE IN
THE TERRITORY OF HAWAII BUT TO THE UNITED STATES OF AMERICA, I AM
UNABLE TO FIND THAT ON THAT DAY THE PRESIDENT AND THE GOVERNOR EXCEEDED
THEIR CONSTITUTIONAL AUTHORITY IN TAKING THE STEPS EVIDENCED BY THE
FOREGOING DECLARATION OF POLICY OR THAT THE COMMANDING GENERAL EXCEEDED
HIS AUTHORITY IN CARRYING OUT THOSE INSTRUCTIONS THROUGH THE ISSUANCE
OF HIS PROCLAMATION PURSUANT THERETO ON DECEMBER 7, 1941.  FN4 

THE FINDINGS OF FACT, EXPRESS AND IMPLICIT IN THESE PROMPT AND
FORTHRIGHT EXPRESSIONS OF EXECUTIVE LEADERSHIP, LEAVE NO ROOM FOR DOUBT
AS TO THE GENUINENESS OF THE EMERGENCY AND OF THE CONSCIENTIOUS
DETERMINATION OF THESE OFFICIALS TO ACT SO AS TO MEET IT.  AT THE SAME
TIME, THE APPRECIATION FELT BY THE COMMANDING GENERAL OF HIS
RESPONSIBILITY TO THE CIVILIANS ON THE ISLANDS IS SHOWN IN HIS THREE
CONCLUDING PARAGRAPHS.  STARTING WITH THE PROPRIETY OF THAT BATTLE
FIELD REGULATION IN THE PRESENCE OF DISASTROUS INVASION, THE QUESTION
RESOLVES ITSELF SOLELY TO ONE OF WHEN AND TO WHAT EXTENT THE
CONSTITUTIONAL EXECUTIVE DISCRETION TO CONTINUE THESE ORDERS CAN OR
SHOULD BE HELD BY THIS COURT TO HAVE BEEN EXCEEDED.  ONCE THE ISLANDS
ARE VISUALIZED AS A BATTLE FIELD UNDER ACTUAL INVASION, THREATENED WITH
FURTHER INVASION, AND INVALUABLE TO THE ENEMY AS A BASE FROM WHICH TO
ATTACK THE CONTINENTAL UNITED STATES, THE SITUATION IS COMPLETELY
CHANGED FROM THAT OF AN ORDINARY CIVILIAN COMMUNITY.  UNDER CONDITIONS
LIKELY TO DISREGARD EVEN THE LAWS OF CIVILIZED WARFARE, THE ISLAND
POPULATION WAS THREATENED WITH IMMEDIATE DESTRUCTION.  IT THUS BECAME
NECESSARY TO ORGANIZE AND PROTECT THAT POPULATION AGAINST IMMINENT
DANGER FROM BOMBING, FIRE, DISRUPTION OF WATER AND FOOD SUPPLY, DISEASE
AND ALL THE OTHER INCIDENTS OF MODERN WARFARE.  THE LIMITED AREA,
LIMITED GARRISON AND GREAT ISOLATION OF THE ISLANDS PUT A PREMIUM ON
THE EFFICIENCY OF ITS CIVILIAN DEFENSE AND ON THE INTEGRATION OF IT
WITH THE MILITARY DEFENSE.  ALL ACTIVITY WAS SUBORDINATED TO EXECUTIVE
CONTROL AS THE BEST CONSTITUTIONAL SAFEGUARD OF THE CIVILIAN AS WELL AS
THE MILITARY LIFE. 

THAT IN SUCH A CASE THERE MUST BE RESTORATION OF CIVILIAN CONTROL IS
CLEAR.  IT IS EQUALLY CLEAR THAT THERE MUST BE LIMITS TO THE EXTENT TO
WHICH THE EXECUTIVE DISCRETION CONSTITUTIONALLY MAY DELAY SUCH
RESTORATION.  IN THE FIRST INSTANCE, HOWEVER, THERE IS A PERIOD,
BEARING A REASONABLE RELATION TO THE ORIGINAL EMERGENCY, DURING WHICH
IT MUST BE WITHIN THE DISCRETION OF THE EXECUTIVE AGENCIES OF THE
GOVERNMENT TO DECIDE WHEN AND HOW TO RESTORE THE BATTLE FIELD TO ITS
PEACE TIME CONTROLS.    IN VIEW OF THE RESPONSIBILITY PLACED UPON THE
EXECUTIVE BRANCH OF THE GOVERNMENT AND ESPECIALLY UPON ITS ARMED FORCES
IN TIME OF INVASION AND THREATENED INVASION, IT IS ESSENTIAL THAT THAT
BRANCH OF THE GOVERNMENT HAVE FREEDOM OF ACTION EQUAL TO ITS NEEDS.  AT
THE CENTER OF INVASION, MILITARY CONTROL IS THE PROPER CONTROL TO BE
APPLIED, SUBJECT TO PROVISIONS OF THE CONSTITUTION, TREATIES AND LAWS
OF THE UNITED STATES APPLICABLE TO A BATTLE FIELD.  ON DECEMBER 7,
1941, I BELIEVE THAT THE FACTS OF THE INVASION AND THREATENED FURTHER
INVASION AMPLY ESTABLISHED SUCH A CONDITION AND JUSTIFIED AT THE TIME
THE MILITARY CONTROL ESTABLISHED ON THAT BASIS THROUGHOUT THE ISLANDS. 

WHETHER OR NOT FROM THE VANTAGE POST OF THE PRESENT THIS COURT MAY
DISAGREE WITH THE JUDGMENT EXERCISED BY THE MILITARY AUTHORITIES IN
THEIR SCHEDULE OF RELAXATION OF CONTROL IS NOT MATERIAL UNLESS THIS
COURT FINDS THAT THE SCHEDULE WAS SO DELAYED AS TO EXCEED THE RANGE OF
DISCRETION WHICH SUCH CONDITIONS PROPERLY VEST IN THE MILITARY
AUTHORITIES. 

IT IS ALL TOO EASY IN THIS POSTWAR PERIOD TO ASSUME THAT THE SUCCESS
WHICH OUR FORCES ATTAINED WAS INEVITABLE AND THAT MILITARY CONTROL
SHOULD HAVE BEEN RELAXED ON A SCHEDULE BASED UPON SUCH ACTUAL
DEVELOPMENTS.  IN FACT, HOWEVER, EVEN NOW OUR CHIEF OF STAFF IN HIS
REPORT TO THE SECRETARY OF WAR AS OF JUNE 30, 1945, REMINDS US THAT IN
"THE BLACK DAYS OF 1942 WHEN THE JAPANESE CONQUERED ALL OF MALAYSIA,
OCCUPIED BURMA, AND THREATENED INDIA WHILE THE GERMAN ARMIES APPROACHED
THE VOLGA AND THE SUEZ....  GERMANY AND JAPAN CAME SO CLOSE TO COMPLETE
DOMINATION OF THE WORLD THAT WE DO NOT YET REALIZE HOW THIN THE THREAD
OF ALLIED SURVIVAL HAD BEEN STRETCHED."  BIENNIAL REPORT OF THE CHIEF
OF STAFF OF THE UNITED STATES ARMY (1945) 1.  FN5  THOSE WERE CRITICAL
DAYS WHEN THE UNITED STATES COULD AFFORD NO MILITARY MISTAKES AND WHEN
THE SAFETY AND CONTROL OF THE HAWAIIAN KEY TO THE PACIFIC WAS
ESSENTIAL.  IT WAS THE RESPONSIBILITY OF OUR MILITARY COMMANDERS NOT
ONLY TO DO THE RIGHT THING IN THE INTERESTS OF SAFETY BUT TO TAKE NO
CHANCES OF ERROR OR SURPRISE.  IT WAS THE OBLIGATION OF OUR MILITARY
COMMANDERS TO INSURE SAFETY RATHER THAN TO RISK IT.  ACTING AS THEY
WERE IN THE "FOG OF WAR," THEY WERE ENTITLED TO A WIDE RANGE OF
DISCRETION IF THEY WERE TO MEET THE OBLIGATIONS IMPOSED UPON THEM.  IT
IS NOT JUSTIFIABLE TO TEAR HAWAII OUT FROM THE CONTEXT OF THE WAR AS A
WHOLE.  OUR MILITARY POLICY THERE, AS ELSEWHERE, HAD TO BE GUIDED BY
ITS RELATION TO THE GLOBAL WAR. 

UNDER THESE CIRCUMSTANCES IT IS CONCEIVABLE THAT THE MILITARY
AUTHORITIES MIGHT HAVE TRIED TO CONTINUE COMPLETE MILITARY CONTROL IN
EFFECT FOR A SUBSTANTIAL PERIOD WITH A VIEW TO LATER RELAXATION OF ALL
SUCH CONTROL WHEN CONDITIONS MADE IT OBVIOUS THAT THERE WAS NO LONGER A
NEED FOR ANY CONTROL.  SUCH A COURSE WAS NOT ATTEMPTED HERE.  THE
COMMANDING GENERAL OF THE HAWAIIAN DEPARTMENT FOLLOWED FROM THE
BEGINNING THE POLICY FORESHADOWED IN HIS ORIGINAL PROCLAMATION.  HE
RESTORED CIVILIAN CONTROL OF CIVILIAN ACTIVITIES WHEREVER AND WHENEVER
HE FELT THAT A PARTIAL RESTORATION OF IT WAS IN THE PUBLIC INTEREST. 
IN THE MEANTIME HE HAD THE PRIMARY DUTY OF MAINTAINING LAW AND ORDER
AND OF FOSTERING CIVILIAN ACTIVITIES AS MUCH AS POSSIBLE.  PERHAPS HE
COULD HAVE ARRESTED AND DETAINED INDIVIDUALS CHARGED WITH VIOLATION OF
LAWS OR REGULATIONS AND HELD THEM FOR LATER TRIAL BY CIVILIAN COURTS. 
HOWEVER, IN VIEW OF THE SIZE OF THE POPULATION AND THE NECESSARILY
LIMITED FACILITIES FOR LARGE SCALE DETENTIONS, HE OWED AN EQUAL DUTY TO
DISPOSE PROMPTLY OF VIOLATIONS OF THE LAW.  TO THIS END, LAW AND ORDER
WAS ENFORCED AND JUSTICE WAS ADMINISTERED IN THE FIRST INSTANCE THROUGH
MILITARY TRIBUNALS.  WITH EVIDENT CARE AND WITH SUBSTANTIAL RAPIDITY
THE MILITARY CONTROL WAS RELAXED GRADUALLY, IN INSTANCE AFTER INSTANCE,
UNTIL THE ADMINISTRATION OF JUSTICE OVER CIVILIANS WAS RESTORED
COMPLETELY TO CIVILIAN ADMINISTRATION WHEN, ON OCTOBER 19, 1944, THE
PRESIDENT ISSUED A PROCLAMATION EFFECTIVE OCTOBER 24, TERMINATING
MARTIAL LAW AND DIRECTING THE GOVERNOR TO ISSUE A PROCLAMATION
ACCORDINGLY. 

THERE IS SET FORTH IN THE MARGIN  FN6  A SUMMARY OF THE STEPS BY
WHICH THIS RELAXATION WAS ACCOMPLISHED.  AS EARLY AS DECEMBER 16, 1941,
THE COURTS WERE REOPENED IN SO FAR AS THEY APPLIED TO CIVIL MATTERS NOT
INVOLVING JURY TRIALS.  ON JANUARY 27, 1942, THE RESTRICTIONS ON COURT
PROCEDURE WERE FURTHER MODIFIED.  ON AUGUST 31, 1942, A GENERAL ORDER
EXTENDED THE JURISDICTION OF THE COURTS TO JURY TRIALS.  FURTHER
RELAXATION OCCURRED FROM TIME TO TIME IN 1942 AND 1943. 

IT WAS ON AUGUST 20, 1942, THAT THE PETITIONER WHITE WAS ARRESTED FOR
EMBEZZLEMENT IN VIOLATION OF CHAPTER 183 OF THE REVISED LAWS OF
HAWAII.  ON AUGUST 25 HE WAS TRIED AND CONVICTED BEFORE A PROVOST
COURT, AND SENTENCED TO FIVE YEARS' IMPRISONMENT, LATER REDUCED TO
FOUR.  IN SO FAR AS THE ISSUE RELATES TO HIS CASE, AND IN THE LIGHT OF
THE EVIDENT CONSIDERATION THAT THE COMMANDING GENERAL WAS GIVING TO THE
RESTORATION OF CIVIL CONTROL TO THE COURTS, I AM UNABLE TO HOLD AS A
MATTER OF LAW THAT, THROUGH NOT ACTING MORE QUICKLY AND LESS
CAUTIOUSLY, HE VIOLATED HIS CONSTITUTIONAL DISCRETION WHEN ON DECEMBER
16, 1941, HE AUTHORIZED THE CIVIL COURTS TO OPEN TO A LIMITED EXTENT
FOR THE TRIAL OF LIMITED CLASSES OF CASES NOT REQUIRING JURY TRIALS OR
THE SUBPOENAING OF WITNESSES, OR WHEN ON JANUARY 27, 1942, HE
AUTHORIZED THE CIVIL COURTS, AS AGENTS OF THE MILITARY GOVERNMENT, TO
EXERCISE THEIR NORMAL FUNCTIONS EXCEPT FOR JURY TRIALS, WRITS OF HABEAS
CORPUS AND OTHER SPECIFIED CLASSES OF CASES, AND WHEN, ON AUGUST 31,
1942, HE EXTENDED THEIR JURISDICTION TO JURY TRIALS SUCH AS WOULD HAVE
APPLIED TO THE PETITIONER WHITE.  EVEN ON THAT DATE, IN GENERAL ORDERS
NO. 133,  FN7  HE FOUND EXPRESSLY THAT "MARTIAL LAW HAS BEEN DECLARED
AND THE EMERGENCY WHICH CALLED IT FORTH STILL PREVAILS." 

THE PETITIONER DUNCAN WAS CONVICTED ON MARCH 2, 1944, OF MALICIOUSLY
ASSAULTING AND BEATING TWO MARINES ON FEBRUARY 24, 1944, WITH INTENT TO
PREVENT THEIR PERFORMANCE OF THEIR DUTIES AS SENTRIES AT THE MAIN GATE
OF THE PEARL HARBOR NAVY YARD.  FOR THIS OFFENSE HE WAS SENTENCED TO
SIX MONTHS IN JAIL.  AT THIS TIME CIVILIAN AGENCIES HAD RESUMED MOST OF
THEIR PEACE TIME JURISDICTION, INCLUDING CRIMINAL AND CIVIL
PROCEEDINGS, EXCEPT FOR CRIMINAL PROCEEDINGS AGAINST MEMBERS OF THE
ARMED FORCES, CIVIL SUITS AGAINST THEM FOR ACTS OR OMISSIONS IN LINE OF
DUTY AND CRIMINAL PROSECUTIONS OF VIOLATIONS OF MILITARY ORDERS.  THE
CLOSE RELATIONSHIP OF THESE ITEMS TO THE MILITARY FUNCTIONS OF THE
ARMED FORCES ON THE ISLANDS INDICATES THE REASONABLENESS OF THEIR
EXCEPTION.  EVEN THESE EXCEPTIONS WERE REMOVED IN OCTOBER, 1944, WHEN
MARTIAL LAW WAS TERMINATED.  I FIND IT IMPOSSIBLE UNDER THESE
CIRCUMSTANCES TO HOLD THAT THE PRESIDENT AND THE MILITARY AUTHORITIES
VIOLATED THE DISCRETION VESTED IN THEM TO INSURE THE SAFETY OF THE
ISLANDS IN TIME OF WAR, INVASION AND THREATENED INVASION, IN THAT THEY
FAILED TO TERMINATE MARTIAL LAW SO COMPLETELY BEFORE MARCH 2, 1944,
THAT A CIVILIAN, WHO ATTACKED MARINES ON DUTY AS SENTRIES AT THE MAIN
GATE OF THE PEARL HARBOR NAVY YARD, COULD INSIST UPON A TRIAL IN THE
LOCAL CRIMINAL COURTS AS DISTINGUISHED FROM THE LOCAL PROVOST COURT
WHICH HAD EXERCISED JURISDICTION OVER SUCH CASES THROUGHOUT THE
JAPANESE WAR WHICH WAS STILL ACTIVELY IN PROGRESS. 

NOW THAT THE WAR HAS BEEN WON AND THE SAFETY OF THE ISLANDS HAS BEEN
AGAIN ASSURED, THERE IS OPPORTUNITY, IN THE CALM LIGHT OF PEACE, FOR
THE READJUSTMENT OF SENTENCES IMPOSED UPON CIVILIANS AND MILITARY
PERSONNEL DURING THE EMERGENCY OF WAR AND WHICH HAVE NOT YET EXPIRED. 
IT IS IMPORTANT, HOWEVER, THAT IN REVIEWING THE CONSTITUTIONALITY OF
THE CONDUCT OF OUR AGENCIES OF GOVERNMENT IN TIME OF WAR, INVASION AND
THREATENED INVASION, WE DO NOT NOW MAKE PRECEDENTS WHICH IN OTHER
EMERGENCIES MAY HANDICAP THE EXECUTIVE BRANCH OF THE GOVERNMENT IN THE
PERFORMANCE OF DUTIES ALLOTTED TO IT BY THE CONSTITUTION AND BY THE
EXERCISE OF WHICH IT SUCCESSFULLY DEFENDED THE NATION AGAINST THE
GREATEST ATTACK EVER MADE UPON IT. 

ONE WAY TO TEST THE SOUNDNESS OF A DECISION TODAY THAT THE TRIAL OF
PETITIONER WHITE ON AUGUST 25, 1942, BEFORE A PROVOST COURT ON A CHARGE
OF EMBEZZLEMENT AND THE TRIAL OF PETITIONER DUNCAN ON MARCH 2, 1944,
BEFORE A SIMILAR COURT ON A CHARGE OF MALICIOUSLY ASSAULTING MARINE
SENTRIES WERE UNCONSTITUTIONAL PROCEDURES, IS TO ASK OURSELVES WHETHER
OR NOT ON THOSE DATES, WITH THE WAR AGAINST JAPAN IN FULL SWING, THIS
COURT WOULD HAVE, OR SHOULD HAVE, GRANTED A WRIT OF HABEAS CORPUS, AN
INJUNCTION OR A WRIT OF PROHIBITION TO RELEASE THE PETITIONERS OR
OTHERWISE TO OUST THE PROVOST COURTS OF THEIR CLAIMED JURISDICTION. 
SUCH A TEST EMPHASIZES THE ISSUE.  I BELIEVE THAT THIS COURT WOULD NOT
HAVE BEEN JUSTIFIED IN GRANTING THE RELIEF SUGGESTED AT SUCH TIMES. 
ALSO I BELIEVE THAT THIS COURT MIGHT WELL HAVE FOUND ITSELF EMBARRASSED
HAD IT ORDERED SUCH RELIEF AND THEN HAD ATTEMPTED TO ENFORCE ITS ORDER
IN THE THEATRE OF MILITARY OPERATIONS, AT A TIME WHEN THE AREA WAS
UNDER MARTIAL LAW AND THE WRIT OF HABEAS CORPUS WAS STILL SUSPENDED,
ALL IN ACCORDANCE WITH THE ORDERS OF THE PRESIDENT OF THE UNITED STATES
AND THE GOVERNOR OF HAWAII ISSUED UNDER THEIR INTERPRETATION OF THE
DISCRETION AND RESPONSIBILITY VESTED IN THEM BY THE CONSTITUTION OF THE
UNITED STATES AND BY THE ORGANIC ACT OF HAWAII ENACTED BY CONGRESS. 

IN ORDER TO HAVE THE BENEFIT OF THE FULL STRENGTH OF OUR
CONSTITUTION, BOTH IN TIME OF PEACE AND IN TIME OF WAR, IT IS NECESSARY
TO PROTECT THE AUTHORITY OF OUR LEGISLATIVE AND EXECUTIVE OFFICIALS, AS
WELL AS THAT OF OUR COURTS, IN THE PERFORMANCE OF THEIR RESPECTIVE
OBLIGATIONS TO HELP TO "ESTABLISH JUSTICE, INSURE DOMESTIC TRANQUILITY,
PROVIDE FOR THE COMMON DEFENCE, PROMOTE THE GENERAL WELFARE, AND SECURE
THE BLESSINGS OF LIBERTY TO OURSELVES AND OUR POSTERITY." 

FN1  ADMIRAL CHESTER W. NIMITZ, COMMANDER IN CHIEF OF THE PACIFIC
FLEET, WHO ASSUMED NAVAL COMMAND IN THE TERRITORY OF HAWAII DECEMBER
18, 1941, TESTIFIED THAT THE HAWAIIAN AREA CONSTITUTED THE ONLY BASE
FOR THE NAVY IN THE PACIFIC OCEAN AT THAT TIME AND THAT THROUGHOUT THE
WAR UNTIL THE LAST JAPANESE CARRIER WAS DESTROYED, A JAPANESE SURPRISE
CARRIER ATTACK ON THE ISLANDS WAS WITHIN THE ENEMY'S CAPABILITIES. 
WHILE INVASION BY SEA-BORNE TROOPS IN SUFFICIENT NUMBER TO SEIZE A
BEACH HEAD WAS NOT PROBABLE, INVASION BY SUBMARINE COMMANDO RAIDERS AND
ESPIONAGE PARTIES WAS IMMINENT AND CONSTANTLY IMPENDING.  LIEUTENANT
GENERAL ROBERT C. RICHARDSON, JR., COMMANDING GENERAL OF THE CENTRAL
PACIFIC AREA, WHO ASSUMED COMMAND OF THE HAWAIIAN DEPARTMENT ON JUNE 1,
1943, TESTIFIED THAT THE ISLANDS WERE WITHIN THE THEATRE OF OPERATIONS
OF THE PACIFIC OCEAN AREA AND THAT THE ISLANDS WERE THE KEYSTONE OF THE
DEFENSE OF THE WESTERN COAST OF OUR COUNTRY.  HE TESTIFIED THAT THE
JAPANESE FLEET IN APRIL, 1944, WAS STILL CAPABLE OF MAKING A SURPRISE
ATTACK UPON OAHU BY THE USE OF AIR OR UNDERSEA CRAFT AND THAT PEARL
HARBOR WAS THE MOST ATTRACTIVE TARGET FOR THE ENEMY BECAUSE IT WAS THE
BASE OF THE PACIFIC FLEET.  HE SAID THAT IT WAS LIKELY THAT JAPAN WOULD
TAKE THE RISK OF LAUNCHING AN ATTACK BECAUSE OF THE ATTRACTIVENESS OF
THE TARGET AND THE CONSIDERABLE DAMAGE THAT MIGHT BE INFLICTED.  HE
POINTED OUT THAT THE PROBABILITY OF NIGHT ATTACKS THROUGH THE USE OF
SUBMARINES AND PARTIES SENT ASHORE TO ATTACK IMPORTANT INSTALLATIONS
WAS INCREASED BY THE PRESENCE OF DISLOYAL INDIVIDUALS AMONG THE
POPULATION OF THE ISLANDS.  THE SUCCESSES OF OUR FLEET HAD NOT REMOVED
THE IMMINENT DANGER OF INVASION BECAUSE THESE SUCCESSES MADE IT MORE
IMPERATIVE FOR THE ENEMY TO REPEAT ITS FORMER INVASION OF THE ISLANDS. 
HE FURTHER TESTIFIED THAT THE DISCHARGE OF HIS RESPONSIBILITY FOR
MILITARY SECURITY REQUIRED A METHOD OF ENFORCEMENT OF MILITARY SECURITY
REGULATIONS WHICH WAS PROMPT AND SUBJECT TO HIS IMMEDIATE CONTROL AND
AUTHORITY AND THAT UNDER MARTIAL LAW THE PROVOST COURTS PROVIDED SUCH A
METHOD OF ENFORCEMENT.  HE TESTIFIED THAT A MILITARY TRIAL FOR SUCH AN
OFFENSE AS THAT OF DUNCAN IN ATTACKING THE PEARL HARBOR NAVY YARD
SENTRIES WAS NECESSARY IN ORDER TO UPHOLD THE AUTHORITY OF MILITARY
SENTRIES CHARGED WITH IMPORTANT MILITARY DUTIES.  HE ALSO GAVE AS HIS
OPINION THAT MILITARY NECESSITY REQUIRED TRIAL OF WHITE'S OFFENSE IN A
MILITARY TRIBUNAL IN AUGUST OF 1942 AT WHICH TIME THE JAPANESE
SUCCESSFUL MILITARY OFFENSIVE STILL CONTINUED.  IN ADDITION TO THE
OCCUPATION OF HONG KONG, THE MALAY PENINSULA, SINGAPORE, THE DUTCH EAST
INDIES, AND BASES IN NEW GUINEA, THE JAPANESE HAD SUCCESSFULLY OCCUPIED
OUR OWN TERRITORIES OF GUAM AND WAKE WHICH, WITH MIDWAY, CONSTITUTED
THE ISLAND CHAIN CONNECTING HAWAII WITH THE PHILIPPINES WHICH
THEMSELVES WERE SOON OCCUPIED.  THE ENEMY'S OCCUPATION OF THE SOLOMON
ISLANDS, INCLUDING TULAGI AND GUADALCANAL, GAVE THE ENEMY ADVANCE AIR
AND NAVAL BASES FOR OFFENSIVE OPERATIONS AGAINST OUR SOUTH PACIFIC
SUPPLY LINE AND THE NORTH COAST OF AUSTRALIA.  BIENNIAL REPORT OF THE
CHIEF OF STAFF OF THE UNITED STATES ARMY TO THE SECRETARY OF WAR (1943)
14(HOUSE DOC. 288, 78TH CONG., 1ST SESS.); MCINNIS, THE WAR, THIRD YEAR
(1942) 238.    EARLY IN MAY, 1942, ONE JAPANESE ATTEMPT TO EXTEND ENEMY
CONTROL SOUTHEASTWARD ALONG THE BORDERS OF THE CORAL SEA WITH THE
ULTIMATE OBJECTIVE OF AN ATTACK ON AUSTRALIA, WAS REPULSED IN THE
BATTLE OF THE CORAL SEA.  THE JAPANESE OFFENSIVE, HOWEVER, CONTINUED. 
IN EARLY JUNE THE JAPANESE ATTEMPT TO OCCUPY MIDWAY ISLAND PRELIMINARY
TO AN INVASION OF HAWAII WAS THWARTED IN THE BATTLE OF MIDWAY.  AT THE
SAME TIME, HOWEVER, JAPANESE FORCES OCCUPIED OUR TERRITORY OF ATTU,
AGATTU AND KISKA IN THE ALEUTIAN ISLANDS.  BIENNIAL REPORT, SUPRA, P.
30.  (THESE ISLANDS WERE NOT RECOVERED UNTIL MAY, 1943.  BIENNIAL
REPORT, SUPRA, P. 31.)  JAPANESE ADVANCES IN NEW GUINEA CONTINUED
DURING THE SUMMER OF 1942 AND BY SEPTEMBER, 1942, HAD FORCED ALLIED
GROUND FORCES BACK TO WITHIN 30 MILES OF PORT MORESBY, A GATEWAY TO
AUSTRALIA.  BIENNIAL REPORT, SUPRA, P. 14.  ON AUGUST 7 A LANDING WAS
MADE ON GUADALCANAL BY UNITED STATES FORCES.  FOR A TIME IT DID NOT
APPEAR THAT THE EFFORT TO WREST THIS CRUCIAL ISLAND FROM THE JAPANESE
COULD SUCCEED.  A STRONG JAPANESE ATTEMPT TO RECAPTURE GUADALCANAL WAS
BEATEN OFF AS LATE AS NOVEMBER 16, 1942.  NOT UNTIL EARLY IN 1943 WAS
ENEMY RESISTANCE ON GUADALCANAL OVERCOME.  IBID.  EVEN THEN OUR FORCES
HAD ONLY SUCCEEDED IN CHECKING THE ENEMY'S OFFENSIVE AND HAD NOT
LAUNCHED THEIR OWN OFFENSIVES OR OUSTED THE ENEMY FROM ANY AMERICAN
TERRITORY.  THE AMERICAN OFFENSIVE IN THE CENTRAL PACIFIC DID NOT BEGIN
UNTIL A YEAR LATER WITH THE INVASION OF THE GILBERT ISLANDS IN
NOVEMBER, 1943, FOLLOWED BY INVASION OF THE MARSHALL ISLANDS IN
JANUARY, 1944, AND THE INVASION OF THE MARIANA ISLANDS IN JULY, 1944. 
BIENNIAL REPORT OF THE CHIEF OF STAFF OF THE UNITED STATES ARMY TO THE
SECRETARY OF WAR (1945) 69.  OUR FORCES LANDED ON GUAM ON JULY 21 AND
RESISTANCE CEASED ON AUGUST 10.  BY THAT TIME OUR FORCES IN THE
SOUTHWEST PACIFIC UNDER GENERAL MACARTHUR HAD REDUCED OR BY-PASSED THE
ENEMY'S FOOTHOLDS IN NEW GUINEA AND THE WAY WAS PREPARED FOR THE BATTLE
OF THE PHILIPPINES WHICH BEGAN WITH THE LANDING ON LEYTE ON OCTOBER 20,
1944.  ID., P. 75 ET SEQ. THE "BATTLE OF THE BULGE," IN THE ARDENNES,
WAS FOUGHT AND WON AT HIGH COST IN DECEMBER AND JANUARY, 1944-45.  ID.,
P. 44. 

FN2  "HAWAII CONSTITUTES THE MAIN PACIFIC OUTPOST OF THE UNITED
STATES, AND ACCORDINGLY MUST BE REGARDED AS A FORTRESS TO WHOSE DEFENSE
THE ENTIRE POPULATION OF THE ISLANDS IS COMMITTED.  ITS MANPOWER AND
ITS ECONOMIC RESOURCES MUST BE SUBJECT TO A SINGLE ULTIMATE CONTROL." 
GENERAL ORDERS NO. 133, BY ORDER OF THE MILITARY GOVERNOR OF THE
TERRITORY OF HAWAII, AUGUST 31, 1942. 

FN3  "AGAIN, IN THE PLACE WHERE ACTUAL MILITARY OPERATIONS ARE BEING
CONDUCTED, THE ORDINARY RIGHTS OF CITIZENS MUST YIELD TO PARAMOUNT
MILITARY NECESSITY.  THIS WAS CONCEDED IN MILLIGAN'S CASE (4 WALL.  2,
127), WHERE IT WAS SAID IN THE PREVAILING OPINION: 

"'IF, IN FOREIGN INVASION OR CIVIL WAR, THE COURTS ARE ACTUALLY
CLOSED, AND IT IS IMPOSSIBLE TO ADMINISTER CRIMINAL JUSTICE ACCORDING
TO LAW, THEN, ON THE THEATRE OF ACTUAL MILITARY OPERATIONS, WHERE WAR
REALLY PREVAILS, THERE IS A NECESSITY TO FURNISH A SUBSTITUTE FOR THE
CIVIL AUTHORITY, THUS OVERTHROWN, TO PRESERVE THE SAFETY OF THE ARMY
AND SOCIETY; AND AS NO POWER IS LEFT BUT THE MILITARY, IT IS ALLOWED TO
GOVERN BY MARTIAL RULE UNTIL THE LAWS CAN HAVE THEIR FREE COURSE.'" 
ADDRESS BY HON. CHARLES E. HUGHES, WAR POWERS UNDER THE CONSTITUTION
(1917) XLII REPORTS OF AMERICAN BAR ASSOCIATION 232, 244. 

IN THE PRESENT CASES THE RECORDS HAVE INCORPORATED THE FOLLOWING
TESTIMONY OF LT. GEN. ROBERT C. RICHARDSON, JR., U.S.A., COMMANDING
GENERAL OF THE CENTRAL PACIFIC AREA: 

"A....  THIS WHOLE AREA UNDER THE COMMAND OF THE COMMANDER-IN-CHIEF
OF THE PACIFIC OCEAN AREA, ADMIRAL NIMITZ, IS AN ACTIVE THEATRE OF WAR,
AND WITHIN THAT THEATRE OF WAR IS THE THEATRE OF OPERATIONS, OF WHICH
THE HAWAIIAN DEPARTMENT IS A PART. 

"Q.  WILL YOU EXPLAIN WHAT YOU MEAN, FROM THE MILITARY VIEWPOINT, BY
THE TERMS 'ACTIVE THEATRE OF WAR' AND 'THEATRE OF OPERATIONS'? 

"A.  WELL, AN ACTIVE THEATRE OF WAR IS THAT AREA WHICH IS OR MAY
BECOME ACTIVELY INVOLVED IN THE CONDUCT OF THE WAR.  A THEATRE OF
OPERATIONS IS THAT PART OF AN ACTIVE WAR THEATRE WHICH IS NEEDED FOR
THE OPERATIONS EITHER OFFENSIVELY OR DEFENSIVELY, ACCORDING TO THE
MISSIONS ASSIGNED OR A COMBINATION OF THE MISSIONS; AND IT INCLUDES
ALSO THE ADMINISTRATIVE AGENCIES WHICH ARE NECESSARY FOR THE CONDUCT OF
THOSE OPERATIONS." 

     .         .         .         .         . 

"Q.  IS THERE ANY MILITARY PARLANCE THAT INDICATES THAT PORTION OF
THE EARTH'S SURFACE WHERE THE FIGHTING ACTUALLY TAKES PLACE? 

"A.  YES. 

"Q.  WHAT IS THAT CALLED? 

"A.  COMBAT ZONE. 

"Q.  YOU WOULD NOT CALL HAWAII A COMBAT ZONE? 

"A.  YES, I WOULD, BECAUSE THE THEATRE OF OPERATIONS OR THE COMBAT
ZONE ALSO INCLUDES THAT PART ASSIGNED TO YOUR MISSION, WHETHER IT BE
OFFENSIVE OR DEFENSIVE.  WE ARE ON THE DEFENSIVE MISSION HERE IN OAHU,
WHEREAS THE FLEET OPERATES OFFENSIVELY FROM HERE, AND SOME OF OUR
TROOPS WHICH ARE BASED HERE OPERATE OFFENSIVELY FROM THIS BASE.  BUT
CONCURRENTLY WITH ITS MISSION AS AN OFFENSIVE BASE, WE HAVE A VERY
DECIDED MISSION HERE AS A DEFENSIVE BASE, AND THAT DEFENSIVE MISSION
DESIGNATES OR CHARACTERIZES IT AS A PART OF THE COMBAT ZONE. 

"Q.  THEN A COMBAT ZONE CAN BE AN AREA WHERE NO SHOOTING IS GOING ON
AT ALL? 

"A.  OH, YES; OH, YES. 

"Q.  NO REAL DESTRUCTION OF LIFE OR PROPERTY? 

"A.  ABSOLUTELY.... 

"Q.  WELL, DO YOU HAVE ANY TERM, MILITARY TERM, THAT PRECISELY FITS
THE PLACE WHERE LIFE AND PROPERTY IS ACTUALLY BEING DESTROYED AS A
RESULT OF ORGANIZED WARFARE? 

"A.  YES, THE BATTLE." 

FN4  "TO THE PEOPLE OF HAWAII: 

"THE MILITARY AND NAVAL FORCES OF THE EMPIRE OF JAPAN HAVE ATTACKED
AND ATTEMPTED TO INVADE THESE ISLANDS. 

"PURSUANT TO SECTION 67 OF THE ORGANIC ACT OF THE TERRITORY OF
HAWAII, APPROVED APRIL 30, 1900, THE GOVERNOR OF HAWAII HAS CALLED UPON
ME, AS COMMANDER OF THE MILITARY FORCES OF THE UNITED STATES IN HAWAII,
TO PREVENT SUCH INVASION; HAS SUSPENDED THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS; HAS PLACED THE TERRITORY UNDER MARTIAL LAW; HAS
AUTHORIZED AND REQUESTED ME AND MY SUBORDINATES TO EXERCISE THE POWERS
NORMALLY EXERCISED BY THE GOVERNOR AND BY SUBORDINATE CIVIL OFFICERS;
AND HAS REQUIRED ALL PERSONS WITHIN THE TERRITORY TO OBEY SUCH
PROCLAMATIONS, ORDERS, AND REGULATIONS AS I MAY ISSUE DURING THE
PRESENT EMERGENCY. 

"I ANNOUNCE TO THE PEOPLE OF HAWAII, THAT, IN COMPLIANCE WITH THE
ABOVE REQUESTS OF THE GOVERNOR OF HAWAII, I HAVE THIS DAY ASSUMED THE
POSITION OF MILITARY GOVERNOR OF HAWAII, AND HAVE TAKEN CHARGE OF THE
GOVERNMENT OF THE TERRITORY, OF THE PRESERVATION OF ORDER THEREIN, AND
OF PUTTING THESE ISLANDS IN A PROPER STATE OF DEFENSE. 

"ALL PERSONS WITHIN THE TERRITORY OF HAWAII, WHETHER RESIDENTS
THEREOF OR NOT WHETHER CITIZENS OF THE UNITED STATES OR NOT, OF NO
MATTER WHAT RACE OR NATIONALITY, ARE WARNED THAT BY REASON OF THEIR
PRESENCE HERE THEY OWE DURING THEIR STAY AT LEAST A TEMPORARY DUTY OF
OBEDIENCE TO THE UNITED STATES, AND THAT THEY ARE BOUND TO REFRAIN FROM
GIVING BY WORD OR DEED, ANY AID OR COMFORT TO THE ENEMIES OF THE UNITED
STATES.  ANY VIOLATION OF THIS DUTY IS TREASON, AND WILL BE PUNISHED BY
THE SEVEREST PENALTIES. 

"THE TROOPS UNDER MY COMMAND, IN PUTTING DOWN ANY DISORDER OR
REBELLION AND IN PREVENTING ANY AID TO THE INVADER, WILL ACT WITH SUCH
FIRMNESS AND VIGOR AND WILL USE SUCH ARMS AS THE ACCOMPLISHMENT OF
THEIR TASK MAY REQUIRE. 

"THE IMMINENCE OF ATTACK BY THE ENEMY AND THE POSSIBILITY OF INVASION
MAKE NECESSARY A STRICTER CONTROL OF YOUR ACTIONS THAN WOULD BE
NECESSARY OR PROPER AT OTHER TIMES.  I SHALL THEREFORE SHORTLY PUBLISH
ORDINANCES GOVERNING THE CONDUCT OF THE PEOPLE OF THE TERRITORY WITH
RESPECT TO THE SHOWING OF LIGHTS, CIRCULATION, MEETINGS, CENSORSHIP,
POSSESSION OF ARMS, AMMUNITION, AND EXPLOSIVES, THE SALE OF
INTOXICATING LIQUORS AND OTHER SUBJECTS. 

"IN ORDER TO ASSIST IN REPELLING THE THREATENED INVASION OF OUR
ISLAND HOME, GOOD CITIZENS WILL CHEERFULLY OBEY THIS PROCLAMATION AND
THE ORDINANCES TO BE PUBLISHED; OTHERS WILL BE REQUIRED TO DO SO.
OFFENDERS WILL BE SEVERELY PUNISHED BY MILITARY TRIBUNALS OR WILL BE
HELD IN CUSTODY UNTIL SUCH TIME AS THE CIVIL COURTS ARE ABLE TO
FUNCTION. 

"PENDING FURTHER INSTRUCTIONS FROM THIS HEADQUARTERS THE HAWAII
DEFENSE ACT AND THE PROCLAMATIONS OF THE GOVERNOR OF HAWAII HERETOFORE
ISSUED THEREUNDER SHALL CONTINUE IN FULL FORCE AND EFFECT." 

FN5  SEE ALSO THE LETTERS OF GENERAL GEORGE C. MARSHALL, CHIEF OF
STAFF, OF SEPTEMBER 25 AND 27, 1944, TO GOVERNOR THOMAS E. DEWEY,
EMPHASIZING THE TRAGIC MILITARY CONSEQUENCES WHICH AT THAT DATE WOULD
FOLLOW DISCLOSURE THAT THE UNITED STATES HAD "BROKEN" THE JAPANESE
SECRET MESSAGE CODE.  HEARINGS BEFORE JOINT COMMITTEE OF CONGRESS TO
INVESTIGATE THE PEARL HARBOR ATTACK, 79TH CONG., 2D SESS., PART III,
1128-1133. 

FN6  DEC. 7, 1941.  GOVERNOR POINDEXTER INVOKED SEC. 67 OF THE
HAWAIIAN ORGANIC ACT AND BY PROCLAMATION PLACED THE TERRITORY UNDER
MARTIAL LAW; SUSPENDED THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS; AND
DELEGATED TO THE COMMANDING GENERAL OF THE HAWAIIAN DEPARTMENT OF THE
UNITED STATES ARMY NOT ONLY ALL OF HIS POWERS AS GOVERNOR BUT ALSO ALL
OF THE "POWERS NORMALLY EXERCISED BY JUDICIAL OFFICERS  ...  OF THIS
TERRITORY  ...  DURING THE PRESENT EMERGENCY AND UNTIL THE DANGER OF
INVASION IS REMOVED  ..." 

DEC. 7, 1941.  BY RADIO THE GOVERNOR OF HAWAII NOTIFIED THE PRESIDENT
OF THE UNITED STATES THAT HE HAD PLACED THE TERRITORY UNDER MARTIAL LAW
AND SUSPENDED THE WRIT OF HABEAS CORPUS. 

DEC. 7, 1941.  THE COMMANDING GENERAL, WALTER C. SHORT, REFERRING
SPECIFICALLY TO GOVERNOR POINDEXTER'S PROCLAMATION OF THE SAME DATE,
HIMSELF ISSUED A PROCLAMATION NOTIFYING THE PEOPLE OF HAWAII THAT HE
HAD ASSUMED THE POSITION OF "MILITARY GOVERNOR OF HAWAII" AND HAD TAKEN
OVER THE GOVERNMENT OF HAWAII. 

DEC. 7, 1941.  THE MILITARY GOVERNOR OF HAWAII ISSUED GENERAL ORDERS
NO. 4 BY WHICH HE SET UP A SYSTEM OF MILITARY COURTS TO TRY CIVILIANS
FOR VIOLATIONS OF THE LAWS OF THE UNITED STATES, THE LAWS OF THE
TERRITORY, AND "RULES, REGULATIONS, ORDERS OR POLICIES" OF THE MILITARY
AUTHORITIES.  THE PROCEDURE PRESCRIBED FOR THESE MILITARY COURTS WAS
THAT OF SPECIAL AND SUMMARY COURTS MARTIAL. 

DEC. 8, 1941.  THE COURTS OF THE TERRITORY WERE CLOSED BY THE CHIEF
JUSTICE OF THE SUPREME COURT OF HAWAII UNDER THE DIRECTION OF THE
COMMANDING GENERAL. 

DEC. 9, 1941.  THE PRESIDENT APPROVED BY RADIO, THE ACTION OF THE
GOVERNOR SUSPENDING THE WRIT AND PLACING THE TERRITORY UNDER MARTIAL
LAW IN ACCORDANCE WITH THE ORGANIC ACT OF HAWAII. 

DEC. 16, 1941.  BY GENERAL ORDERS NO. 29 THE COMPLETE CLOSING OF THE
COURTS WAS PARTLY RELAXED.  THE RELAXATION AFFECTED ONLY CIVIL MATTERS
NOT INVOLVING JURY TRIALS. 

DEC. 17, 1941.  GENERAL SHORT TRANSFERRED TO GENERAL EMMONS HIS
POWERS AS MILITARY GOVERNOR OF HAWAII. 

JAN. 27, 1942.  THE MILITARY GOVERNOR, BY GENERAL ORDERS NO. 57,
MODIFIED FURTHER THE RESTRICTIONS ON COURT PROCEEDINGS.  BY THIS ORDER
THE COURTS OF THE TERRITORY WERE AUTHORIZED TO EXERCISE CERTAIN OF THE
POWERS NORMALLY EXERCISED BY THEM DURING THE EXISTENCE OF CIVIL
GOVERNMENT.  WITH CERTAIN EXCEPTIONS, THE COURTS WERE RESTORED TO THEIR
RESPECTIVE FUNCTIONS PRIOR TO MARTIAL LAW, "AS AGENTS OF THE MILITARY
GOVERNOR."  THE CRIMINAL COURTS COULD NOT, UNDER THE ORDER, SUMMON A
GRAND JURY; AND NEITHER THE CRIMINAL NOR CIVIL COURTS COULD GRANT A
JURY TRIAL, OR AT ANY TIME GRANT A WRIT OF HABEAS CORPUS. 

AUG. 31, 1942.  GENERAL ORDERS NO. 133 EXTENDED THE JURISDICTION OF
THE COURTS TO JURY TRIALS.  THIS ORDER STATED IN SEC. I:  "...  MARTIAL
LAW HAS BEEN DECLARED AND THE EMERGENCY WHICH CALLED IT FORTH STILL
PREVAILS....  IT IS TO BE UNDERSTOOD THAT THE RELAXATION HEREIN
SPECIFIED IS INTENDED TO RETURN TO THE COURTS CRIMINAL PROSECUTIONS AND
CIVIL LITIGATION TO THE EXTENT THAT WAR CONDITIONS PERMIT.  HOWEVER,
THIS ACTION IS EXPERIMENTAL IN NATURE AND THE MILITARY GOVERNOR
RESERVES THE RIGHT FURTHER TO LIMIT THE JURISDICTION OF THE COURTS OR
TO CLOSE THEM ENTIRELY, IF THAT COURSE SHALL BE NECESSARY." 

SEPT. 4, 1942.  GENERAL ORDERS NO. 135 ENUMERATED THE CRIMINAL
OFFENSES INVOLVING CRIMES AGAINST THE GOVERNMENT OR RELATED TO THE WAR
EFFORT, IN RESPECT TO WHICH THE COURTS WERE NOT AUTHORIZED TO EXERCISE
JURISDICTION. 

FEB. 8, 1943.  GOVERNOR STAINBACK, WHO SUCCEEDED GOVERNOR POINDEXTER,
ISSUED A PUBLIC PROCLAMATION PROVIDING THAT, ALTHOUGH MARTIAL LAW AND
SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS WERE TO REMAIN
IN EFFECT, THE GOVERNOR AND OTHER CIVIL AGENCIES WOULD RESUME THEIR
RESPECTIVE JURISDICTIONS, INCLUDING CRIMINAL AND CIVIL PROCEEDINGS,
EXCEPT FOR CRIMINAL PROCEEDINGS AGAINST MEMBERS OF THE ARMED FORCES AND
CIVIL SUITS AGAINST THEM FOR ACTS OR OMISSIONS IN THE LINE OF DUTY AND
CRIMINAL PROSECUTIONS FOR VIOLATIONS OF MILITARY ORDERS, EXCEPT AS
THESE EXCEPTIONS MIGHT BE WAIVED BY THE COMMANDING GENERAL IN ANY
PARTICULAR CASE OR CLASS OF CASES. 

FEB. 8, 1943.  GENERAL EMMONS, THE MILITARY GOVERNOR, ISSUED A PUBLIC
PROCLAMATION RELINQUISHING TO THE GOVERNOR AND OTHER CIVILIAN OFFICERS
OF THE TERRITORY THE FUNCTIONS SET FORTH IN THE GOVERNOR'S
PROCLAMATION. 

MAR. 10, 1943.  GENERAL EMMONS ISSUED A REVISED SET OF GENERAL ORDERS
NOS. 1 TO 14, AND RESCINDED GENERAL ORDERS NOS. 1 TO 181, ISSUED UNDER
PRIOR PROCLAMATIONS.  GENERAL ORDERS NO. 2 VESTED PROVOST COURTS AND
MILITARY COMMISSIONS WITH JURISDICTION TO TRY ANY CASE INVOLVING
VIOLATIONS BY A CIVILIAN OF "RULES, REGULATIONS, PROCLAMATIONS, OR
ORDERS OF THE MILITARY OR NAVAL AUTHORITIES, OR OF THE MILITARY
GOVERNOR OF THE TERRITORY OF HAWAII, OR OF THE LAWS OF WAR," AND TO
IMPOSE A FINE, IMPRISONMENT OR BOTH.  MAXIMUM PUNISHMENT WAS TO BE
CONFINEMENT AT HARD LABOR FOR FIVE YEARS, OR A FINE OF FIVE THOUSAND
DOLLARS OR BOTH.    OCT. 19, 1944.  THE PRESIDENT ISSUED PROCLAMATION
NO. 2627 PROVIDING THAT, EFFECTIVE OCT. 24, 1944, THE PRIVILEGE OF THE
WRIT OF HABEAS CORPUS WAS RESTORED AND MARTIAL LAW TERMINATED AND
DIRECTING THE GOVERNOR TO ISSUE A PROCLAMATION ACCORDINGLY. 

OCT. 24, 1944.  THE GOVERNOR ISSUED A PROCLAMATION WHICH PROCLAIMED
THAT "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS RESTORED AND THAT
MARTIAL LAW IS TERMINATED IN THE TERRITORY OF HAWAII." 

FN7  SEE FOOTNOTES 2 AND 6. 
..END :



















SOCIAL SECURITY BOARD V. NIEROTKO, 327 U.S. 358 


NO. 318.  ARGUED DECEMBER 12, 1945.  - DECIDED FEBRUARY 25, 1946.  - 149
F.2D 273, AFFIRMED. 


1.  "BACK PAY" AWARDED UNDER THE NATIONAL LABOR RELATIONS ACT TO AN
EMPLOYEE WHO WAS FOUND TO HAVE BEEN WRONGFULLY DISCHARGED IS TO BE
TREATED UNDER THE SOCIAL SECURITY ACT AS "WAGES" FOR WHICH THE EMPLOYEE
IS ENTITLED TO CREDIT ON HIS OLD AGE AND SURVIVORS INSURANCE ACCOUNT. 
PP. 359, 364. 

(A)  THE TREATMENT OF SUCH BACK PAY AS WAGES UNDER THE SOCIAL
SECURITY ACT IS REQUIRED BY THAT ACT'S DEFINITIONS OF WAGES AS
"REMUNERATION FOR EMPLOYMENT" AND OF EMPLOYMENT AS "ANY SERVICE, OF
WHATEVER NATURE, PERFORMED  ...  BY ANY EMPLOYEE FOR HIS EMPLOYER."  P.
364. 

(B)  THE WORD "SERVICE," AS USED IN THE ACT'S DEFINITION OF
EMPLOYMENT, MEANS NOT ONLY WORK ACTUALLY PERFORMED BUT THE ENTIRE
EMPLOYER-EMPLOYEE RELATIONSHIP FOR WHICH COMPENSATION IS PAID TO THE
EMPLOYEE BY THE EMPLOYER.  PP. 365-366. 

(C)  THE CONSTRUCTION OF THE SOCIAL SECURITY ACT BY THE SOCIAL
SECURITY BOARD, WHEREBY "BACK PAY" IS EXCLUDED FROM "WAGES," IS UNSOUND
AND GOES BEYOND THE PERMISSIBLE LIMITS OF ADMINISTRATIVE
INTERPRETATION.  P. 367. 

(D)  ADMINISTRATIVE DETERMINATIONS MUST HAVE A BASIS IN LAW AND BE
WITHIN THE AUTHORITY GRANTED THE ADMINISTRATIVE AGENCY.  P. 369. 

(E)  AN ADMINISTRATIVE AGENCY MAY NOT FINALLY DETERMINE THE SCOPE OF
ITS STATUTORY POWER; THAT IS A JUDICIAL FUNCTION.  P. 369. 

2.  "BACK PAY" TREATED AS "WAGES" UNDER THE SOCIAL SECURITY ACT
SHOULD BE ALLOCATED TO THE PERIODS FOR WHICH THE WAGES ORDINARILY WOULD
HAVE BEEN PAID.  P. 370. 

3.  THE BACK PAY HAVING BEEN AWARDED FOR A PERIOD PRIOR TO THE 1939
AMENDMENTS OF THE SOCIAL SECURITY ACT ALTHOUGH ACTUALLY PAID
THEREAFTER, THE DECISION HERE IS CONTROLLED BY THE ACT IN ITS EARLIER
FORM.  HOWEVER, THERE IS NO SUGGESTION OF ANY SIGNIFICANT DIFFERENCE IN
THE AMENDED ACT SO FAR AS THE QUESTION HERE INVOLVED IS CONCERNED.  P.
360. 

SOCIAL SECURITY BOARD V. NIEROTKO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

THE SOCIAL SECURITY BOARD REFUSED TO CREDIT RESPONDENT'S OLD AGE AND
SURVIVORS INSURANCE ACCOUNT WITH THE AMOUNT OF "BACK PAY" AWARDED HIM
BY THE NATIONAL LABOR RELATIONS BOARD.  THE DISTRICT COURT UPHELD THE
SOCIAL SECURITY BOARD.  THE CIRCUIT COURT OF APPEALS REVERSED.  149
F.2D 273.  THIS COURT GRANTED CERTIORARI.  326 U.S. 700.  AFFIRMED, P.
370. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

A PROBLEM AS TO WHETHER "BACK PAY," WHICH IS GRANTED TO AN EMPLOYEE
UNDER THE NATIONAL LABOR RELATIONS ACT, SHALL BE TREATED AS "WAGES"
UNDER THE SOCIAL SECURITY ACT COMES BEFORE US ON THIS RECORD.  IF SUCH
"BACK PAY" IS A WAGE PAYMENT, THERE IS ALSO AT ISSUE THE PROPER
ALLOCATION OF SUCH SUMS TO THE QUARTERS OF COVERAGE FOR WHICH THE "BACK
PAY" WAS ALLOWED. 

THE RESPONDENT, JOSEPH NIEROTKO, WAS FOUND BY THE NATIONAL LABOR
RELATIONS BOARD TO HAVE BEEN WRONGFULLY DISCHARGED FOR UNION ACTIVITY
BY HIS EMPLOYER, THE FORD MOTOR COMPANY, AND WAS REINSTATED BY THAT
BOARD IN HIS EMPLOYMENT WITH DIRECTIONS FOR "BACK PAY" FOR THE PERIOD
FEBRUARY 2, 1937, TO SEPTEMBER 25, 1939.  FN1  THE "BACK PAY" WAS PAID
BY THE EMPLOYER ON JULY 18, 1941.  THEREAFTER NIEROTKO REQUESTED THE
SOCIAL SECURITY BOARD TO CREDIT HIM IN THE SUM OF THE "BACK PAY" ON HIS
OLD AGE AND SURVIVOR'S INSURANCE ACCOUNT WITH THE BOARD.  FN2  IN
CONFORMITY WITH ITS MINUTE OF FORMAL GENERAL ACTION OF MARCH 27, 1942,
THE BOARD REFUSED TO CREDIT NIEROTKO'S "BACK PAY" AS WAGES.  ON REVIEW
OF THE BOARD'S DECISION,  FN3  THE DISTRICT COURT UPHELD THE BOARD. 
THE CIRCUIT COURT OF APPEALS REVERSED.  149 F.2D 273.  ON ACCOUNT OF
THE IMPORTANCE OF THE ISSUES IN THE ADMINISTRATION OF THE SOCIAL
SECURITY ACT, WE GRANTED CERTIORARI.  FN4  326 U.S. 700; JUDICIAL CODE
SEC. 240. 

DURING THE PERIOD FOR WHICH "BACK PAY" WAS AWARDED RESPONDENT THE
FEDERAL OLD AGE BENEFITS WERE GOVERNED BY TITLE II OF THE SOCIAL
SECURITY ACT OF 1935.  49 STAT. 622.  AS TITLE II OF THE SOCIAL
SECURITY ACT AMENDMENTS OF 1939 BECAME EFFECTIVE JANUARY 1, 1940(53
STAT. 1362), THE ACTUAL PAYMENT OF THE "BACK WAGES" OCCURRED
THEREAFTER.  IN OUR VIEW THE GOVERNING PROVISIONS WHICH DETERMINE
WHETHER THIS "BACK PAY" IS WAGES ARE THOSE OF THE EARLIER ENACTMENT. 
FN5 

WAGES ARE THE BASIS FOR THE ADMINISTRATION OF FEDERAL OLD AGE
BENEFITS.  49 STAT. 622.  ONLY THOSE WHO EARN WAGES ARE ELIGIBLE FOR
BENEFITS.  FN6  THE PERIODS OF TIME DURING WHICH WAGES WERE EARNED ARE
IMPORTANT AND MAY BE CRUCIAL ON ELIGIBILITY UNDER EITHER THE ORIGINAL
ACT OR THE AMENDMENTS OF 1939.  SEE SEC. 210(C) AND COMPARE SEC.
209(G), 53 STAT. 1376.  FN7  THE BENEFITS ARE FINANCED BY PAYMENTS FROM
EMPLOYEES AND EMPLOYERS WHICH ARE CALCULATED ON WAGES.  FN8  THE ACT
DEFINES "WAGES" FOR OLD AGE BENEFITS AS FOLLOWS: 

"SEC. 210.  WHEN USED IN THIS TITLE - 

(A)  THE TERM 'WAGES' MEANS ALL REMUNERATION FOR EMPLOYMENT,
INCLUDING THE CASH VALUE OF ALL REMUNERATION PAID IN ANY MEDIUM OTHER
THAN CASH; ..."  EMPLOYMENT IS DEFINED THUS: 

"(B)  THE TERM 'EMPLOYMENT' MEANS ANY SERVICE, OF WHATEVER NATURE,
PERFORMED WITHIN THE UNITED STATES BY AN EMPLOYEE FOR HIS EMPLOYER,
EXCEPT - " 

THE TAX TITLES OF THE SOCIAL SECURITY ACT HAVE IDENTICAL DEFINITIONS
OF WAGES AND EMPLOYMENT.  FN9  AN EMPLOYEE UNDER THE SOCIAL SECURITY
ACT IS NOT SPECIFICALLY DEFINED BUT THE INDIVIDUAL TO WHOM THE ACT'S
BENEFITS ARE TO BE PAID IS ONE RECEIVING "WAGES" FOR "EMPLOYMENT" IN
ACCORDANCE WITH SEC. 210(C) AND EMPLOYMENT IS SERVICE BY AN "EMPLOYEE"
TO AN "EMPLOYER."  OBVIOUSLY A SHARPLY DEFINED LINE BETWEEN PAYMENTS TO
EMPLOYEES WHICH ARE WAGES AND WHICH ARE NOT IS ESSENTIAL TO PROPER
ADMINISTRATION.  FN10 

UNDER THE NATIONAL LABOR RELATIONS ACT AN EMPLOYEE IS DESCRIBED AS
"ANY INDIVIDUAL WHOSE WORK HAS CEASED  ...  BECAUSE OF ANY UNFAIR LABOR
PRACTICE."  SEC. 2(3), 49 STAT. 450.  THE ENFORCEMENT PROVISIONS OF
THIS ACT UNDER WHICH NIEROTKO RECEIVED HIS "BACK PAY" ALLOW THE LABOR
BOARD TO REINSTATE "EMPLOYEES WITH OR WITHOUT BACK PAY."  SEC. 10(C). 
THE PURPOSE OF THE "BACK PAY" ALLOWANCE IS TO EFFECTUATE THE POLICIES
OF THE LABOR ACT FOR THE PRESERVATION OF INDUSTRIAL PEACE.  FN11 

THE PURPOSE OF THE FEDERAL OLD AGE BENEFITS OF THE SOCIAL SECURITY
ACT IS TO PROVIDE FUNDS THROUGH CONTRIBUTIONS BY EMPLOYER AND EMPLOYEE
FOR THE DECENT SUPPORT OF ELDERLY WORKMEN WHO HAVE CEASED TO LABOR. 
FN12  ELIGIBILITY FOR THESE BENEFITS AND THEIR AMOUNT DEPENDS UPON THE
TOTAL WAGES WHICH THE EMPLOYEE HAS RECEIVED AND THE PERIODS IN WHICH
WAGES WERE PAID.  FN13  WHILE THE LEGISLATIVE HISTORY OF THE SOCIAL
SECURITY ACT AND ITS AMENDMENTS OR THE LANGUAGE OF THE ENACTMENTS
THEMSELVES DOES NOT SPECIFICALLY DEAL WITH WHETHER OR NOT "BACK PAY"
UNDER THE LABOR ACT IS TO BE TREATED AS WAGES UNDER THE SOCIAL SECURITY
ACT, WE THINK IT PLAIN THAT AN INDIVIDUAL, WHO IS AN EMPLOYEE UNDER THE
LABOR ACT AND WHO RECEIVES "BACK PAY" FOR A PERIOD OF TIME DURING WHICH
HE WAS WRONGFULLY SEPARATED FROM HIS JOB, IS ENTITLED TO HAVE THAT
AWARD OF BACK PAY TREATED AS WAGES UNDER THE SOCIAL SECURITY ACT
DEFINITIONS WHICH DEFINE WAGES AS "REMUNERATION FOR EMPLOYMENT" AND
EMPLOYMENT AS "ANY SERVICE  ...  PERFORMED  ...  BY AN EMPLOYEE FOR HIS
EMPLOYER ..." 

SURELY THE "BACK PAY" IS "REMUNERATION."  UNDER SEC. 10(C) OF THE
LABOR ACT, THE LABOR BOARD ACTS FOR THE PUBLIC TO VINDICATE THE
PROHIBITIONS OF THE LABOR ACT AGAINST UNFAIR LABOR PRACTICES (SEC. 8)
AND TO PROTECT THE RIGHT OF EMPLOYEES TO SELF-ORGANIZATION WHICH IS
DECLARED BY SEC. 7.  FN14  IT IS ALSO TRUE THAT, IN REQUIRING
REPARATION TO THE EMPLOYEE THROUGH "BACK PAY," REPARATION IS BASED UPON
THE LOSS OF WAGES WHICH THE EMPLOYEE HAS SUFFERED FROM THE EMPLOYER'S
WRONG.  "BACK PAY" IS NOT A FINE OR PENALTY IMPOSED UPON THE EMPLOYER
BY THE BOARD.  REINSTATEMENT AND "BACK PAY" ARE FOR THE "PROTECTION OF
THE EMPLOYEES AND THE REDRESS OF THEIR GRIEVANCES" TO MAKE THEM
"WHOLE."  REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7, 11, 12. 
"... A WORKER'S LOSS IN WAGES AND IN GENERAL WORKING CONDITIONS MUST BE
MADE WHOLE."  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 196.  A
WORKER IS NOT GIVEN "BACK PAY" BY THE BOARD EQUAL TO WHAT HE WOULD HAVE
EARNED WITH THE EMPLOYER BUT FOR THE UNLAWFUL DISCHARGE, BUT IS GIVEN
THAT SUM LESS ANY NET EARNINGS DURING THE TIME BETWEEN DISCHARGE AND
REINSTATEMENT.  FN15 

SINCE NIEROTKO REMAINED AN EMPLOYEE UNDER THE DEFINITION OF THE LABOR
ACT, ALTHOUGH HIS EMPLOYER HAD ATTEMPTED TO TERMINATE THE RELATIONSHIP,
HE HAD "EMPLOYMENT" UNDER THAT ACT AND WE NEED CONSIDER FURTHER ONLY
WHETHER UNDER THE SOCIAL SECURITY ACT ITS DEFINITION OF EMPLOYMENT, AS
"ANY SERVICE  ...  PERFORMED  ...  BY AN EMPLOYEE FOR HIS EMPLOYER,"
COVERS WHAT NIEROTKO DID FOR THE FORD MOTOR COMPANY.  THE PETITIONER
URGES THAT NIEROTKO DID NOT PERFORM ANY SERVICE.  IT POINTS OUT THAT
CONGRESS IN CONSIDERING THE SOCIAL SECURITY ACT THOUGHT OF BENEFITS AS
RELATED TO "WAGES EARNED" FOR "WORK DONE."  FN16  WE ARE UNABLE,
HOWEVER, TO FOLLOW THE SOCIAL SECURITY BOARD IN SUCH A LIMITED
CIRCUMSCRIPTION OF THE WORD "SERVICE."  THE VERY WORDS "ANY SERVICE
...  PERFORMED 

...  FOR HIS EMPLOYER," WITH THE PURPOSE OF THE SOCIAL SECURITY ACT
IN MIND, IMPORT BREADTH OF COVERAGE.  THEY ADMONISH US AGAINST HOLDING
THAT "SERVICE" CAN BE ONLY PRODUCTIVE ACTIVITY.  WE THINK THAT
"SERVICE" AS USED BY CONGRESS IN THIS DEFINITIVE PHRASE MEANS NOT ONLY
WORK ACTUALLY DONE BUT THE ENTIRE EMPLOYER-EMPLOYEE RELATIONSHIP FOR
WHICH COMPENSATION IS PAID TO THE EMPLOYEE BY THE EMPLOYER.  FN17 

AN ARGUMENT AGAINST THE INTERPRETATION WHICH WE GIVE TO "SERVICE
PERFORMED" IS THE CONTRARY RULING OF THE GOVERNMENTAL AGENCIES WHICH
ARE CHARGED WITH THE ADMINISTRATION OF THE SOCIAL SECURITY ACT.  THEIR
COMPETENCE AND EXPERIENCE IN THIS FIELD COMMAND US TO REFLECT BEFORE WE
DECIDE CONTRARY TO THEIR CONCLUSION.  THE FIRST ADMINISTRATIVE
DETERMINATION WAS APPARENTLY MADE IN 1939 BY AN OFFICE DECISION OF THE
BUREAU OF INTERNAL REVENUE ON THE PROBLEM OF WHETHER "BACK PAY" UNDER A
LABOR BOARD ORDER WAS WAGES SUBJECT TO TAX UNDER TITLES VIII AND IX OF
THE SOCIAL SECURITY ACT WHICH THE BUREAU COLLECTS.  FN18  THE BACK PAY
WAS HELD NOT TO BE SUBJECT AS WAGES TO THE TAX BECAUSE NO SERVICE WAS
PERFORMED, THE EMPLOYER HAD TRIED TO TERMINATE THE EMPLOYMENT
RELATIONSHIP AND THE ALLOWANCE OF BACK PAY WAS DISCRETIONARY WITH THE
LABOR BOARD.  RELIANCE FOR THE CONCLUSIONS WAS PLACED UPON AGWILINES,
INC. V. LABOR BOARD, 87 F.2D 146, WHICH HAD HELD "BACK PAY" A PUBLIC
REPARATION ORDER AND THEREFORE NOT TRIABLE BY JURY AS A PRIVATE RIGHT
FOR WAGES WOULD HAVE BEEN.  THIS POSITION IS MAINTAINED BY THE SOCIAL
SECURITY BOARD BY MINUTE OF MARCH 27, 1942.  IT IS FOLLOWED BY THE
NATIONAL LABOR RELATIONS BOARD WHICH AT ONE TIME APPROVED THE RETENTION
BY THE EMPLOYER OF THE TAX ON THE EMPLOYEES' BACK PAY FOR TRANSMISSION
TO THE TREASURY DEPARTMENT AS A TAX ON WAGES BUT LATER REVERSED ITS
POSITION ON THE AUTHORITY OF THE OFFICE DECISION TO WHICH REFERENCE HAS
JUST BEEN MADE.  RE PENNSYLVANIA FURNACE & IRON CO., 13 N.L.R.B. 49,
53(5), 54, 58.  FN19 

THE OFFICE DECISION SEEMS TO US UNSOUND.  THE PORTION OF THE
AGWILINES DECISION, WHICH THE OFFICE DECISION RELIED UPON, WAS DIRECTED
AT THE CONSTITUTIONAL CLAIM TO A RIGHT OF TRIAL BY JURY.  IT STATED
THAT "BACK PAY" WAS NOT A PENALTY OR DAMAGES WHICH A PRIVATE INDIVIDUAL
MIGHT CLAIM.  BUT THERE IS NOTHING IN THE OPINION WHICH SUPPORTS THE
IDEA THAT THE "BACK PAY" AWARD DIFFERS FROM OTHER PAY.  INDEED THE
OPINION SAID THAT "CONGRESS HAS THE RIGHT TO ERADICATE THEM (UNFAIR
PRACTICES) AS FROM THE BEGINNING."  87 F.2D AT 151, 1.  C. WE THINK THE
TRUE RELATION OF AWARDS OF "BACK PAY" TO COMPENSATION APPEARS IN THE
REPUBLIC STEEL AND PHELPS-DODGE CASES, HEREINBEFORE DISCUSSED.  FN20 

BUT IT IS URGED BY PETITIONER THAT THE ADMINISTRATIVE CONSTRUCTION ON
THE QUESTION OF WHETHER "BACK PAY" IS TO BE TREATED AS WAGES SHOULD
LEAD US TO FOLLOW THE AGENCIES' DETERMINATION.  THERE IS A SUGGESTION
THAT THE ADMINISTRATIVE DECISION SHOULD BE TREATED AS CONCLUSIVE, AND
RELIANCE FOR THAT ARGUMENT IS PLACED UPON LABOR BOARD V. HEARST
PUBLICATIONS, 322 U.S. 111, 130, AND GRAY V. POWELL, 314 U.S. 402,
411.  IN THE ACTS WHICH WERE CONSTRUED IN THE CASES JUST CITED, AS IN
THE SOCIAL SECURITY ACT, THE ADMINISTRATORS OF THOSE ACTS WERE GIVEN
POWER TO REACH PRELIMINARY CONCLUSIONS AS TO COVERAGE IN THE
APPLICATION OF THE RESPECTIVE ACTS.  EACH ACT CONTAINS A STANDARDIZED
PHRASE THAT BOARD FINDINGS SUPPORTED BY SUBSTANTIAL EVIDENCE SHALL BE
CONCLUSIVE.  FN21  THE VALIDITY OF REGULATIONS IS SPECIFICALLY RESERVED
FOR JUDICIAL DETERMINATION BY THE SOCIAL SECURITY ACT AMENDMENTS OF
1939, SEC. 205(G). 

THE SOCIAL SECURITY BOARD AND THE TREASURY WERE COMPELLED TO DECIDE,
ADMINISTRATIVELY, WHETHER OR NOT TO TREAT "BACK PAY" AS WAGES; AND
THEIR EXPERT JUDGMENT IS ENTITLED, AS WE HAVE SAID, TO GREAT WEIGHT. 
FN22  THE VERY FACT THAT JUDICIAL REVIEW HAS BEEN ACCORDED, HOWEVER,
MAKES EVIDENT THAT SUCH DECISIONS ARE ONLY CONCLUSIVE AS TO PROPERLY
SUPPORTED FINDINGS OF FACT.  BOTH HEARST PUBLICATIONS, P. 131, AND GRAY
V. POWELL, P. 411, ADVERT TO THE LIMITATIONS OF ADMINISTRATIVE
INTERPRETATIONS.  ADMINISTRATIVE DETERMINATIONS MUST HAVE A BASIS IN
LAW AND MUST BE WITHIN THE GRANTED AUTHORITY.  ADMINISTRATION, WHEN IT
INTERPRETS A STATUTE SO AS TO MAKE IT APPLY TO PARTICULAR
CIRCUMSTANCES, ACTS AS A DELEGATE TO THE LEGISLATIVE POWER.  CONGRESS
MIGHT HAVE DECLARED THAT "BACK PAY" AWARDS UNDER THE LABOR ACT SHOULD
OR SHOULD NOT BE TREATED AS WAGES.  CONGRESS MIGHT HAVE DELEGATED TO
THE SOCIAL SECURITY BOARD TO DETERMINE WHAT COMPENSATION PAID BY
EMPLOYERS TO EMPLOYEES SHOULD BE TREATED AS WAGES.  EXCEPT AS SUCH
INTERPRETIVE POWER MAY BE INCLUDED IN THE AGENCIES' ADMINISTRATIVE
FUNCTIONS, CONGRESS DID NEITHER.  AN AGENCY MAY NOT FINALLY DECIDE THE
LIMITS OF ITS STATUTORY POWER.  THAT IS A JUDICIAL FUNCTION N23. 
CONGRESS USED A WELL UNDERSTOOD WORD - "WAGES" - TO INDICATE THE
RECEIPTS WHICH WERE TO GOVERN TAXES AND BENEFITS UNDER THE SOCIAL
SECURITY ACT.  THERE MAY BE BORDERLINE PAYMENTS TO EMPLOYEES ON WHICH
COURTS WOULD FOLLOW ADMINISTRATIVE DETERMINATION AS TO WHETHER SUCH
PAYMENTS WERE OR WERE NOT WAGES UNDER THE ACT. 

WE CONCLUDE, HOWEVER, THAT THE BOARD'S INTERPRETATION OF THIS STATUTE
TO EXCLUDE BACK PAY GOES BEYOND THE BOUNDARIES OF ADMINISTRATIVE
ROUTINE AND THE STATUTORY LIMITS.  THIS IS A RULING WHICH EXCLUDES FROM
THE AMBIT OF THE SOCIAL SECURITY ACT PAYMENTS WHICH WE THINK WERE
INCLUDED BY CONGRESS.  IT IS BEYOND THE PERMISSIBLE LIMITS OF
ADMINISTRATIVE INTERPRETATION. 

PETITIONER FURTHER QUESTIONS THE VALIDITY OF THE DECISION OF THE
CIRCUIT COURT OF APPEALS ON THE GROUND THAT IT MUST BE INFERRED FROM
THE OPINION THAT THE "BACK PAY" MUST BE ALLOCATED AS WAGES BY THE BOARD
TO THE "CALENDAR QUARTERS" OF THE YEAR IN WHICH THE MONEY WOULD HAVE
BEEN EARNED, IF THE EMPLOYEE HAD NOT BEEN WRONGFULLY DISCHARGED.  WE
THINK THIS INFERENCE IS CORRECT.  FN24  THIS CONCLUSION, PETITIONER
ARGUES, TENDS TO SHOW THAT "BACK PAY" CANNOT BE WAGES BECAUSE THE
AMENDMENTS OF 1939 USE "QUARTERS" AS THE BASIS FOR ELIGIBILITY AS WELL
AS THE MEASURE OF BENEFITS AND REQUIRE "WAGES" TO BE "PAID" IN CERTAIN
"QUARTERS."  FN25    IF, AS WE HAVE HELD ABOVE, "BACK PAY" IS TO BE
TREATED AS WAGES, WE HAVE NO DOUBT THAT IT SHOULD BE ALLOCATED TO THE
PERIODS WHEN THE REGULAR WAGES WERE NOT PAID AS USUAL.  ADMITTEDLY
THERE ARE ACCOUNTING DIFFICULTIES WHICH THE BOARD WILL BE CALLED UPON
TO SOLVE BUT WE DO NOT BELIEVE THEY ARE INSUPERABLE.  FN26  AFFIRMED. 

FN1  NATIONAL LABOR RELATIONS ACT, SEC. 10(C), 49 STAT. 454. 

FN2  SOCIAL SECURITY ACT, SEC. 205(C)(3), 53 STAT. 1369.    FN3  SEC.
205(G). 

FN4  THE BRIEFS OF THE GOVERNMENT ADVISE US THAT MORE THAN THIRTY
THOUSAND INDIVIDUAL EMPLOYEES WERE ALLOWED "BACK PAY" IN "CLOSED" CASES
BY THE NATIONAL LABOR RELATIONS BOARD UNDER SEC. 10(C), 49 STAT. 454,
IN THE PERIOD 1939-1945.  SEE PHELPS DODGE CORP. V. LABOR BOARD, 313
U.S. 177, 187, SECOND.  THE AGGREGATE IN MONEY EXCEEDED $7,700,000 IN
THE FISCAL YEARS 1939 TO 1944, AS SHOWN BY THE REPORTS OF THE N.L.R.B.
FOR THOSE YEARS. 

FN5  BY THE FOREGOING STATEMENT IT IS NOT INTENDED TO IMPLY THAT THE
VARIATIONS IN THE DEFINITIONS OF WAGES BETWEEN THE TWO ENACTMENTS ARE
SIGNIFICANT ON THE ISSUES HEREIN CONSIDERED.  SEC. 209(B) OF THE
AMENDMENT RECOGNIZES POSSIBLE DIFFERENCES IN THE MEANING OF
EMPLOYMENT: 

"(B)  THE TERM 'EMPLOYMENT' MEANS ANY SERVICE PERFORMED AFTER
DECEMBER 31, 1936, AND PRIOR TO JANUARY 1, 1940, WHICH WAS EMPLOYMENT
AS DEFINED IN SECTION 210(B) OF THE SOCIAL SECURITY ACT PRIOR TO
JANUARY 1, 1940(EXCEPT SERVICE PERFORMED BY AN INDIVIDUAL AFTER HE
ATTAINED THE AGE OF SIXTY-FIVE IF PERFORMED PRIOR TO JANUARY 1, 1939),
AND ANY SERVICE, OF WHATEVER NATURE, PERFORMED AFTER DECEMBER 31, 1939,
BY AN EMPLOYEE FOR THE PERSON EMPLOYING HIM  ..." 

FN6  "SEC.  202.  (A)  EVERY QUALIFIED INDIVIDUAL (AS DEFINED IN
BEGINNING ON THE DATE HE ATTAINS THE AGE OF SIXTY-FIVE, OR ON JANUARY
1, 1942, WHICHEVER IS THE LATER, AND ENDING ON THE DATE OF HIS DEATH,
AN OLD-AGE BENEFIT (PAYABLE AS NEARLY AS PRACTICABLE IN EQUAL MONTHLY
INSTALLMENTS) AS FOLLOWS: 

(1)  IF THE TOTAL WAGES (AS DEFINED IN SECTION 210) DETERMINED BY THE
BOARD TO HAVE BEEN PAID TO HIM, WITH RESPECT TO EMPLOYMENT (AS DEFINED
IN SECTION 210) AFTER DECEMBER 31, 1936, AND BEFORE HE ATTAINED THE AGE
OF SIXTY-FIVE, WERE NOT MORE THAN $3,000, THE OLD-AGE BENEFIT SHALL BE
AT A MONTHLY RATE OF ONE-HALF OF 1 PER CENTUM OF SUCH TOTAL WAGES; 

(2)  IF SUCH TOTAL WAGES WERE MORE THAN $3,000, THE OLD-AGE BENEFIT
SHALL BE AT A MONTHLY RATE EQUAL TO THE SUM OF THE FOLLOWING: 

(A)  ONE-HALF OF 1 PER CENTUM OF $3,000; PLUS 

(B)  ONE-TWELFTH OF 1 PER CENTUM OF THE AMOUNT BY WHICH SUCH TOTAL
WAGES EXCEEDED $3,000 AND DID NOT EXCEED $45,000; PLUS 

(C)  ONE-TWENTY-FOURTH OF 1 PER CENTUM OF THE AMOUNT BY WHICH SUCH
TOTAL WAGES EXCEEDED $45,000." 

SEC. 210.  "(C)  THE TERM 'QUALIFIED INDIVIDUAL' MEANS ANY INDIVIDUAL
WITH RESPECT TO WHOM IT APPEARS TO THE SATISFACTION OF THE BOARD THAT
 

(1)  HE IS AT LEAST SIXTY-FIVE YEARS OF AGE; AND 

(2)  THE TOTAL AMOUNT OF WAGES PAID TO HIM, WITH RESPECT TO
EMPLOYMENT AFTER DECEMBER 31, 1936, AND BEFORE HE ATTAINED THE AGE OF
SIXTY-FIVE, WAS NOT LESS THAN $2,000; AND 

(3)  WAGES WERE PAID TO HIM, WITH RESPECT TO EMPLOYMENT ON SOME FIVE
DAYS AFTER DECEMBER 31, 1936, AND BEFORE HE ATTAINED THE AGE OF SIXTY
FIVE, EACH DAY BEING IN A DIFFERENT CALENDAR YEAR." 

FN7  SEC. 209.  "(G) THE TERM 'FULLY INSURED INDIVIDUAL' MEANS ANY
INDIVIDUAL WITH RESPECT TO WHOM IT APPEARS TO THE SATISFACTION OF THE
BOARD THAT - 

(1) HE HAD NOT LESS THAN ONE QUARTER OF COVERAGE FOR EACH TWO OF THE
QUARTERS ELAPSING AFTER 1936, OR AFTER THE QUARTER IN WHICH HE ATTAINED
THE AGE OF TWENTY-ONE, WHICHEVER QUARTER IS LATER, AND UP TO BUT
EXCLUDING THE QUARTER IN WHICH HE ATTAINED THE AGE OF SIXTY-FIVE, OR
DIED, WHICHEVER FIRST OCCURRED, AND IN NO CASE LESS THAN SIX QUARTERS
OF COVERAGE; OR 

(2)  HE HAD AT LEAST FORTY QUARTERS OF COVERAGE. 

AS USED IN THIS SUBSECTION, AND IN SUBSECTION (H) OF THIS SECTION,
THE TERM 'QUARTER' AND THE TERM 'CALENDAR QUARTER' MEAN A PERIOD OF
THREE CALENDAR MONTHS ENDING ON MARCH 31, JUNE 30, SEPTEMBER 30, OR
DECEMBER 31; AND THE TERM 'QUARTER OF COVERAGE' MEANS A CALENDAR
QUARTER IN WHICH THE INDIVIDUAL HAS BEEN PAID NOT LESS THAN $50 IN
WAGES...." 

FN8  49 STAT. 636-37: 

"SECTION 801.  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 (AS DEFINED IN SECTION 811)
RECEIVED BY HIM AFTER DECEMBER 31, 1936, WITH RESPECT TO EMPLOYMENT (AS
DEFINED IN SECTION 811) AFTER SUCH DATE: 

(1)  WITH RESPECT TO EMPLOYMENT DURING THE CALENDAR YEARS 1937, 1938,
AND 1939, THE RATE SHALL BE 1 PER CENTUM...." 

"SEC. 804.  IN ADDITION TO OTHER TAXES, EVERY EMPLOYER SHALL PAY AN
EXCISE TAX, WITH RESPECT TO HAVING INDIVIDUALS IN HIS EMPLOY, EQUAL TO
THE FOLLOWING PERCENTAGES OF THE WAGES (AS DEFINED IN SECTION 811) PAID
BY HIM AFTER DECEMBER 31, 1936, WITH RESPECT TO EMPLOYMENT (AS DEFINED
IN SECTION 811) AFTER SUCH DATE: 

(1)  WITH RESPECT TO EMPLOYMENT DURING THE CALENDAR YEARS 1937, 1938,
AND 1939, THE RATE SHALL BE 1 PER CENTUM...." 

FN9  SECS. 811(A) AND (B), AND 907(B) AND (C). 

FN10  PROVISIONS SIMILAR TO THOSE QUOTED ARE FOUND IN THE SOCIAL
SECURITY ACT AMENDMENTS OF 1939.  SEE SECS. 202(A), 202(E), 203(D),
209(A), (B), (E), (G), (H), AND 601, 604, AND 606 AT 53 STAT. 1363 ET
SEQ. 

FN11  49 STAT. 449: 

"IT IS HEREBY DECLARED TO BE THE POLICY OF THE UNITED STATES TO
ELIMINATE THE CAUSES OF CERTAIN SUBSTANTIAL OBSTRUCTIONS TO THE FREE
FLOW OF COMMERCE AND TO MITIGATE AND ELIMINATE THESE OBSTRUCTIONS WHEN
THEY HAVE OCCURRED BY ENCOURAGING THE PRACTICE AND PROCEDURE OF
COLLECTIVE BARGAINING AND BY PROTECTING THE EXERCISE BY WORKERS OF FULL
FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND DESIGNATION OF
REPRESENTATIVES OF THEIR OWN CHOOSING, FOR THE PURPOSE OF NEGOTIATING
THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT OR OTHER MUTUAL AID OR
PROTECTION." 

FN12 SEE HELVERING V. DAVIS, 301 U.S. 619, 641; H. REP. NO. 728, 76TH
CONG., 1ST SESS., 3-4; S. REP. NO. 734, 76TH CONG., 1ST SESS., 3-4. 

FN13  UNDER THE SOCIAL SECURITY ACT OF 1935, SEE SECS. 202(A) AND
210(C), SUPRA, NOTE 6.  UNDER THE 1939 AMENDMENTS, SEE SECS. 202 AND
209(E), (F) AND (G), 53 STAT. 1363, ET SEQ. 

FN14  VIRGINIA ELECTRIC CO. V. LABOR BOARD, 319 U.S. 533, 543. 

FN15  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 196, 198.  SEE
THIRD ANNUAL REPORT, NATIONAL LABOR RELATIONS BOARD, 202, N. 11; EIGHTH
ANNUAL REPORT 41; NINTH ANNUAL REPORT 49.  NIEROTKO'S ORDER WAS IN THIS
FORM, 14 N.L.R.B. 346, 410. 

FN16  H. REP. NO. 615, 74TH CONG., 1ST SESS., PP. 6, 21, 32, AND S.
REP. NO. 628, 74TH CONG., 1ST SESS., PP. 7, 32. 

FN17  FOR EXAMPLE THE SOCIAL SECURITY BOARD'S REGULATIONS NO. 3 IN
CONSIDERING "WAGES" TREATS VACATION ALLOWANCES AS WAGES.  26 CFR, 1940
SUPP., 402.227(B). 

COMPARE ARMOUR & CO. V. WANTOCK, 323 U.S. 126, 133. 

TREASURY DEPARTMENT REGULATIONS NO. 91 RELATING TO THE EMPLOYEES' TAX
AND THE EMPLOYER'S TAX UNDER TITLE VIII OF THE SOCIAL SECURITY ACT,
1936, ART. 16, CLASSIFIES DISMISSAL PAY, VACATION ALLOWANCES OR SICK
PAY AS WAGES.  REGULATIONS 106 UNDER THE FEDERAL INSURANCE
CONTRIBUTIONS ACT, 1940, PP. 48, 51, CONTINUES TO CONSIDER VACATION
ALLOWANCES AS WAGES.  IT DIFFERENTIATES VOLUNTARY DISMISSAL PAY. 

I.R.B., 1940, 1-22-10271, S.S.T. 389, AN OFFICE DECISION, HOLDS THAT
AMOUNTS PAID EMPLOYEES DURING ABSENCE ON JURY SERVICE TO MAKE THEIR PAY
EQUIVALENT TO REGULAR SALARY ARE WAGES. 

THOUGH FORMAL ACTION WAS TAKEN BY THE SOCIAL SECURITY BOARD ON MARCH
27, 1942, OUR ATTENTION HAS NOT BEEN CALLED TO ANY REGULATION OF ANY
GOVERNMENTAL AGENCY EXCLUDING "BACK PAY" FROM WAGES.  THE TREASURY
DEPARTMENT HAS AUTHORITY TO ISSUE REGULATIONS FOR SOCIAL SECURITY
TAXES.  SECS. 808 AND 908, 49 STAT. 638, ET SEQ.; I.R.C., SEC. 1429, 53
STAT. 178.  SO HAS THE SOCIAL SECURITY BOARD, SEC. 1102, 49 STAT. 647,
AND SEC. 205(A), 53 STAT. 1368.  ALL AUTHORITY FOR THE PROMULGATION OF
REGULATIONS LIMITS THE ACTION TO RULES AND REGULATIONS NOT INCONSISTENT
WITH THE PROVISIONS OF THE VARIOUS SECTIONS. 

IN REGULATIONS GOVERNING THE COLLECTION OF INCOME TAXES AT SOURCE ON
OR AFTER JANUARY 1, 1945, 58 STAT. 247, THE BUREAU OF INTERNAL REVENUE
CLASSIFIED VACATION ALLOWANCES AND DISMISSAL PAY AS WAGES UNDER THE
FOLLOWING STATUTORY DEFINITION OF WAGES: 

"SEC. 1621.  DEFINITIONS.  AS USED IN THIS SUBCHAPTER - 

(A)  WAGES.  - THE TERM 'WAGES' MEANS ALL REMUNERATION (OTHER THAN
FEES PAID TO A PUBLIC OFFICIAL) FOR SERVICES PERFORMED BY AN EMPLOYEE
FOR HIS EMPLOYER, INCLUDING THE CASH VALUE OF ALL REMUNERATION PAID IN
ANY MEDIUM OTHER THAN CASH; EXCEPT THAT SUCH TERM SHALL NOT INCLUDE
REMUNERATION PAID - " SEE 26 CFR, 1944 SUPP., 405.101(D) AND (E). 

FN18  I.R.B., 1939, 1-14-9776, S.S.T. 359.  NO REGULATIONS COVERING
"BACK PAY" UNDER THE SOCIAL SECURITY ACT HAVE BEEN FOUND.  THEY ARE
AUTHORIZED BY SECS. 808 AND 908, 49 STAT. 638, 643. 

FN19  THE STATES HAVE LARGELY FOLLOWED THE BUREAU OF INTERNAL REVENUE
IN THEIR CLASSIFICATION OF "BACK PAY."  SOME HAVE DISAGREED. 
UNEMPLOYMENT INSURANCE SERVICE, ALL STATE TREATISE, C.C.H., PARAGRAPH
1201.  SEE MATTER OF TONRA, 258 APP. DIV. 835, 15 N.Y.S.2D 755; 283
N.Y. 676, 28 N.E.2D 402. 

FN20  THIS WAS THE VIEW OF THE EIGHTH CIRCUIT WHEN A "BACK PAY" CLAIM
WAS PRESENTED IN BANKRUPTCY.  LABOR BOARD V. KILLOREN, 122 F.2D 609,
614. 

FN21  NATIONAL LABOR RELATIONS ACT, 49 STAT. 454, SEC. 10(E);
BITUMINOUS COAL ACT OF 1937, 50 STAT. 72, 85, SEC. 4-A; SOCIAL SECURITY
ACT AMENDMENTS OF 1939, SEC. 205(C)(3) AND (G). 

FN22 SEE SANFORD V. COMMISSIONER, 308 U.S. 39, 52; SKIDMORE V. SWIFT
& CO., 323 U.S. 134, 139-40. 

FN23  AMERICAN SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94,
110; INTERNATIONAL R. CO. V. DAVIDSON, 257 U.S. 506, 514; ISELIN V.
UNITED STATES, 270 U.S. 245; KOSHLAND V. HELVERING, 298 U.S. 441;
FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S.
134, 144-145; UNITED STATES V. CAROLINA CARRIERS CORP., 315 U.S. 475,
489; HELVERING V. CREDIT ALLIANCE CO., 316 U.S. 107, 113; HELVERING V.
SABINE TRANSPORTATION CO., 318 U.S. 306, 311-12; ADDISON V. HOLLY HILL
CO., 322 U.S. 607, 611, ET SEQ.; CF. STEUART & BRO. V. BOWLES, 322 U.S.
398, 403. 

FN24  SEE NIEROTKO V. SOCIAL SECURITY BOARD, 149 F.2D 273, 274, R.C. 

FN25  SEE NOTE 7, SUPRA.  THE SAME PROBLEM WOULD ARISE UNDER THE
SOCIAL SECURITY ACT, 49 STAT. 625, SEC. 210(C). 

FN26  THE SOCIAL SECURITY BOARD ITSELF HAS RECOMMENDED THE INCLUSION
OF "BACK PAY" IN WAGES.  ANNUAL REPORT OF THE FEDERAL SECURITY AGENCY,
SOCIAL SECURITY BOARD (1945), SEC. 5, P. 398: 

"CERTAIN ITEMS OF INCOME WHICH ARE NOW NOT CONSIDERED 'WAGES' UNDER
THE DEFINITION IN THE ACT, SHOULD BE INCLUDED AS WAGES, SO THAT THE
BASE FOR BENEFITS WOULD REPRESENT THE WORKER'S ACTUAL REMUNERATION FROM
EMPLOYMENT.  THESE INCLUDE TIPS, DISMISSAL PAYMENTS WHICH THE EMPLOYER
IS NOT LEGALLY REQUIRED TO MAKE BUT NEVERTHELESS DOES MAKE, AND
PAYMENTS MADE UNDER ORDERS OF THE NATIONAL LABOR RELATIONS BOARD OR A
SIMILAR STATE BOARD." 

A PENDING BILL, S. 1050, 79TH CONG., 1ST SESS., PART F, SEC. 275,
MAKES PROVISION FOR THE INCLUSION IN WAGES UNDER THE SOCIAL SECURITY
ACT OF SUMS PAID PURSUANT TO THE NATIONAL LABOR RELATIONS ACT. 

"BACK PAY" IS NOW TREATED DISTRIBUTIVELY UNDER THE INTERNAL REVENUE
CODE.  SEC. 119, REVENUE ACT OF 1943, 58 STAT. 39. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE DECISIONS OF THIS COURT LEAVE NO DOUBT THAT A MAN'S TIME MAY, AS
A MATTER OF LAW, BE IN THE SERVICE OF ANOTHER THOUGH HE BE INACTIVE. 
E.G., ARMOUR & CO. V. WANTOCK, 323 U.S. 126.  THIS IS, PRACTICALLY
SPEAKING, THE ORDINARY SITUATION OF EMPLOYMENT IN A "STAND-BY"
CAPACITY.  UNITED STATES V. LOCAL 807, 315 U.S. 521, 535.  THE BASIS OF
A BACK-PAY ORDER UNDER THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449,
29 U.S.C. SEC. 151, IS PRECISELY THAT.  WHEN THE EMPLOYER IS LIABLE FOR
BACK PAY, HE IS SO LIABLE BECAUSE UNDER THE CIRCUMSTANCES, THOUGH HE
HAS ILLEGALLY DISCHARGED THE EMPLOYEE, HE STILL ABSORBS HIS TIME. 
PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177.  IN SHORT, AN EMPLOYER
MUST PAY WAGES ALTHOUGH, IN VIOLATION OF LAW, HE HAS SUBJECTED HIS
EMPLOYEE TO ENFORCED IDLENESS.  SINCE SUCH COMPENSATION IS IN FACT PAID
AS WAGES, IT IS A PLAIN DISREGARD OF THE LAW FOR THE SOCIAL SECURITY
BOARD NOT TO INCLUDE SUCH PAYMENTS AMONG THE EMPLOYEES' WAGES.  NEITHER
THE TERMS OF THE SOCIAL SECURITY ACT, 49 STAT. 620, 53 STAT. 1360, 42
U.S.C. SEC. 301, NOR THE IMPLICATIONS OF POLICY, COMPARABLE TO SOME
ASPECTS OF THE RAILWAY LABOR ACT, 44 STAT. 577, 48 STAT. 926, 48 STAT.
1185, 49 STAT. 1921, 54 STAT. 785, 45 U.S.C. SEC. 151, GIVE THE BOARD
JUDICIALLY UNREVIEWABLE AUTHORITY TO EXCLUDE FROM WAGES WHAT AS A
MATTER OF LAW ARE WAGES.  AND SO I CONCUR IN THE DECISION OF THE
COURT. 
..END :



















UNITED STATES V. PETTY MOTOR CO., 327 U.S. 372 


ARGUED DECEMBER 6, 1945.  - DECIDED FEBRUARY 25, 1946.  - 147 F.2D 912,
REVERSED. 


THE UNITED STATES IN 1942 ACQUIRED BY CONDEMNATION FOR PUBLIC USE A
BUILDING THEN OCCUPIED BY TENANTS HOLDING UNDER LEASES FOR VARIOUS
TERMS.  THE USE TAKEN WAS FOR A PERIOD ENDING JUNE 30, 1945, WITH THE
RIGHT OF SURRENDER IN 1943 OR 1944 ON 60 DAYS NOTICE TO THE OWNER.  AN
ORDER FOR IMMEDIATE POSSESSION WAS ENTERED, AND TENANTS WERE GIVEN
NOTICES VARYING FROM SIX TO TWENTY DAYS TO VACATE.  HELD: 

1.  SINCE TERMINATION EARLIER OF THE PERIOD FOR WHICH THE PROPERTY
WAS TAKEN WAS WHOLLY AT THE ELECTION OF THE UNITED STATES, THE TAKING
MUST BE DEEMED A TAKING FOR PUBLIC USE UNTIL JUNE 30, 1945.  P. 374. 

2.  THE MEASURE OF DAMAGES IS THE VALUE OF THE USE AND OCCUPANCY OF
THE LEASEHOLD FOR THE REMAINDER OF THE TENANT'S TERM, LESS THE AMOUNT
OF THE RENT WHICH THE TENANT AGREED TO PAY FOR SUCH USE AND OCCUPANCY. 
P. 381. 

3.  A TENANT WHOSE LEASE CONTAINED A "TERMINATION BY CONDEMNATION"
CLAUSE WAS WITHOUT ANY RIGHT OF RECOVERY.  P. 375. 

4.  TENANTS WHOSE LEASES WERE FOR TERMS SHORTER THAN THE PERIOD FOR
WHICH THE PROPERTY WAS TAKEN FOR PUBLIC USE WERE NOT ENTITLED TO HAVE
COSTS OF REMOVAL OR RELOCATION CONSIDERED AS ELEMENTS OF "VALUE" OF
THEIR RIGHTS UNDER THE UNEXPIRED PORTIONS OF THEIR LEASES.  UNITED
STATES V. GENERAL MOTORS CORP., 323 U.S. 373, DISTINGUISHED.  P. 378. 

5.  IN THE CASE OF TENANCIES AT WILL, DETERMINATION OF THE REMAINDER
OF THE TERM WILL DEPEND UPON THE REQUIREMENTS OF STATE LAW AS TO NOTICE
FOR THE TERMINATION OF SUCH TENANCIES.  P. 380. 

6.  IN THE CASE OF A TENANT WHOSE LEASE CONTAINED A RIGHT OF RENEWAL
FOR A YEAR, THE VALUE OF THAT RIGHT (IF IT CONTINUED UNDER THE STATE
LAW) MUST BE ADDED TO THE VALUE OF THE UNEXPIRED TERM OF THE LEASE.  P.
380. 

UNITED STATES V. PETTY MOTOR CO. 

NO. 77.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT* . 

*TOGETHER WITH NO. 78, UNITED STATES V. BROCKBANK, DOING BUSINESS AS
BROCKBANK APPAREL CO.; NO. 79, UNITED STATES V. GRIMSDELL, DOING
BUSINESS AS GROCER PRINTING CO.; NO. 80, UNITED STATES V. WIGGS, DOING
BUSINESS AS CHICAGO FLEXIBLE SHAFT CO.; NO. 81, UNITED STATES V.
INDEPENDENT PNEUMATIC TOOL CO.; NO. 82, UNITED STATES V. GALIGHER CO.;
AND NO. 83, UNITED STATES V. GRAY-CANNON LUMBER CO., ON CERTIORARI TO
THE SAME COURT, ARGUED AND DECIDED ON THE SAME DATES. 

PROCEEDINGS INSTITUTED BY THE UNITED STATES FOR THE CONDEMNATION OF A
BUILDING FOR TEMPORARY PUBLIC USE RESULTED IN VERDICTS FOR THE
TENANTS.  ON APPEAL BY THE UNITED STATES THE CIRCUIT COURT OF APPEALS
AFFIRMED.  147 F.2D 912.  THIS COURT GRANTED CERTIORARI.  325 U.S.
848.  REVERSED, P. 381. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT OF CERTIORARI UNDER JUDICIAL CODE SEC. 240 BRINGS HERE FOR
REVIEW CERTAIN PROBLEMS RELATING TO THE JUST COMPENSATION FOR TENANTS
IN CONDEMNATION PROCEEDINGS TO TAKE THEIR ENTIRE LEASEHOLDS WHEN THE
UNITED STATES HAD ALREADY TAKEN OVER THE LESSORS' INTEREST IN THE
PROPERTY WHICH THE TENANTS OCCUPY.  CERTIORARI WAS GRANTED TO CONSIDER
THE HOLDING OF THE CIRCUIT COURT OF APPEALS, 147 F.2D 912, AFFIRMING
THE JUDGMENTS OF THE DISTRICT COURT, THAT EVIDENCE BY A TENANT OF THE
COSTS OF MOVING AND REINSTALLATION OF EQUIPMENT WAS ADMISSIBLE TO
ESTABLISH THE VALUE OF HIS LEASEHOLD UNDER THE RULE ANNOUNCED IN UNITED
STATES V. GENERAL MOTORS CORP., 323 U.S. 373.  AS THIS ISSUE PRESENTS
AN IMPORTANT PHASE OF THE LAW OF EMINENT DOMAIN,  FN1  WE GRANTED
CERTIORARI.  325 U.S. 848. 

THESE CASES ARISE OUT OF A PETITION FOR CONDEMNATION OF THE TEMPORARY
USE FOR PUBLIC PURPOSES OF A BUILDING IN SALT LAKE CITY, UTAH, FILED
NOVEMBER 9, 1942, WHICH SOUGHT TO TAKE THE USE OF THE BUILDING FOR THE
GOVERNMENT THROUGH JUNE 30, 1945, WITH THE RIGHT OF ELECTION UPON THE
PART OF THE UNITED STATES TO SURRENDER THE PREMISES ON JUNE 30, 1943,
OR JUNE 30, 1944, UPON SIXTY DAYS WRITTEN NOTICE TO THE OWNER.  FN2
THE OWNER AND TENANTS WERE PARTIES DEFENDANT.  AN ORDER FOR IMMEDIATE
POSSESSION WAS ENTERED ON NOVEMBER 11, 1942, SUBJECT TO AUTHORIZATION
TO THE TENANTS TO CONTINUE THEIR OCCUPATION OF THEIR PREMISES FOR SHORT
PERIODS WHICH VARIED FROM SIX TO TWENTY DAYS. 

WHILE THE CONDEMNATION PROCEEDINGS WERE PENDING THE OWNER OF THE
PROPERTY MADE ARRANGEMENTS WITH THE UNITED STATES WHICH RESULTED IN THE
DISMISSAL OF THE ACTION AGAINST THE OWNER.  THERE IS NO CLAIM BY THE
UNITED STATES THAT THIS ARRANGEMENT RELEASED IT FROM LIABILITY TO THE
TENANTS FOR ITS TAKING OF THEIR LEASEHOLDS.  AS THE VALUE OF THE USE OF
THE TOTALITY OF PROPERTY, WHICH WAS TAKEN, THUS LOST ALL MEANING, THE
GOVERNMENT ACCEPTS A SEPARATE RESPONSIBILITY TO COMPENSATE THE TENANTS
FOR ANY LEGALLY RECOGNIZED INTEREST WHICH THEY MAY HAVE IN THE
PROPERTY.  SEE DUCKETT & CO. V. UNITED STATES, 266 U.S. 149. 

ALTHOUGH AN EARLIER SURRENDER MIGHT OCCUR BY THE ELECTION OF THE
UNITED STATES, THE ESTATE SOUGHT DID NOT NECESSARILY EXPIRE UNTIL JUNE
30, 1945.  PROMPT POSSESSION WAS REQUIRED FROM THE TENANTS AND ALL OF
THEM WERE REQUIRED BY THE ORDER OF POSSESSION TO VACATE THE PREMISES
WHICH THEY OCCUPIED WITHIN VARIOUS SHORT PERIODS OF WHICH TWENTY DAYS
WAS THE LONGEST.  THE JUDGMENTS STATED THE ISSUE WAS THE AMOUNT DUE THE
TENANTS FOR THE TAKING OF THEIR OCCUPANCY OF THEIR PREMISES AND FOUND
IN DOLLARS THE JUST COMPENSATION FOR THE RIGHTS TAKEN.  THESE FACTS, WE
CONCLUDE, RESULTED IN THE TAKING BY THE UNITED STATES OF THE TEMPORARY
USE OF THE BUILDING UNTIL JUNE 30, 1945.  WHEN THE SHORTENING OF THE
TERM IS WHOLLY AT THE ELECTION OF THE LESSEE, THE TERM OF THE LEASEHOLD
FOR THE PURPOSE OF DETERMINING THE EXTENT OF THE TAKING MUST BE
CONSIDERED TO BE ITS LONGEST LIMIT.  FN3  ALL RIGHTS OF ALL THE
TENANTS, EXCEPT THE INDEPENDENT PNEUMATIC TOOL COMPANY, WHICH IS ONE OF
THE RESPONDENTS HERE, TERMINATED BEFORE THE END OF THE GOVERNMENT'S
LEASE BY THE LAPSE OF TIME OR, IN THE CASE OF THE TOOL COMPANY, BY A
"TERMINATION ON CONDEMNATION" CLAUSE.  WITH THE EXCEPTION OF THE PETTY
MOTOR COMPANY AND THE INDEPENDENT PNEUMATIC TOOL COMPANY, THE TENANTS
WERE TENANTS UNDER ORAL CONTRACTS ON A MONTH TO MONTH BASIS.  THIS
ENTITLED THEM ONLY TO NOTICE OF TERMINATION FIFTEEN DAYS PRIOR TO THE
END OF A RENTAL PERIOD.  UTAH CODE ANN. (1943), TITLE 104-60-3(2).  THE
PETTY MOTOR COMPANY HELD A LEASE WHICH EXPIRED OCTOBER 31, 1943, WITH
AN OPTION FOR AN ADDITIONAL YEAR.  CONSEQUENTLY ITS RIGHTS UNDER ITS
LEASE ENDED BEFORE THOSE WHICH THE GOVERNMENT SOUGHT BY ITS PETITION. 

THE LEASE OF THE INDEPENDENT PNEUMATIC TOOL COMPANY INCLUDED A CLAUSE
FOR ITS TERMINATION ON THE FEDERAL GOVERNMENT'S ENTRY INTO POSSESSION
OF THE LEASED PROPERTY FOR PUBLIC USE.  FN4  THE EVENTS CONNECTED WITH
THE GOVERNMENT'S ENTRY JUST SET OUT APPEAR TO MEET THE REQUIREMENTS FOR
TERMINATION.  THIS DOES NOT SEEM TO BE CONTROVERTED.  THE CONTENTION OF
THE TOOL COMPANY, AS WE UNDERSTAND IT, IS THAT THE TENANT IS BARRED
FROM CLAIMING ANY "OF THE AWARD OF THE LANDLORD" BUT THAT THE CONDEMNOR
IS NOT RELIEVED OF LIABILITY TO THE LESSEE.  THIS POSITION SEEMS
INCONSISTENT.  IF THE TOOL COMPANY, WITH ITS TERMINATION ON
CONDEMNATION CLAUSE, WAS THE ONLY TENANT AND CONDEMNATION OF ALL
INTERESTS IN THE PROPERTY WAS DECREED, THE LANDLORD WOULD TAKE THE
ENTIRE COMPENSATION BECAUSE THE LESSEE WOULD HAVE NO RIGHTS AGAINST THE
FUND.  THERE WOULD APPEAR TO BE NO GREATER RIGHT WHERE THE LANDLORD HAS
BEEN OTHERWISE SATISFIED.  CONDEMNATION PROCEEDINGS ARE IN REM, DUCKETT
& CO. V. UNITED STATES, 266 U.S. 149; UNITED STATES V. DUNNINGTON, 146
U.S. 338, 350-54, AND COMPENSATION IS MADE FOR THE VALUE OF THE RIGHTS
WHICH ARE TAKEN.  UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373,
379.  THE TOOL COMPANY HAD CONTRACTED AWAY ANY RIGHTS THAT IT MIGHT
OTHERWISE HAVE HAD.  WE ARE DEALING HERE WITH A CLAUSE FOR AUTOMATIC
TERMINATION OF THE LEASE ON A TAKING OF PROPERTY FOR PUBLIC USE BY
GOVERNMENTAL AUTHORITY.  WITH THIS TYPE OF CLAUSE, AT LEAST IN THE
ABSENCE OF A CONTRARY STATE RULE, THE TENANT HAS NO RIGHT WHICH
PERSISTS BEYOND THE TAKING AND CAN BE ENTITLED TO NOTHING.  FN5 

IN ORDER TO INFORM THE JURY AS TO THE VALUE OF THE TENANTS' INTERESTS
WHERE THERE WAS A RIGHT TO CONTINUE THE OCCUPATION OF THEIR RESPECTIVE
PREMISES, THE TRIAL COURT PERMITTED THE INTRODUCTION OF EVIDENCE, OVER
THE GOVERNMENT'S OBJECTIONS, NOT ONLY AS TO THE VALUE ON THE MARKET OF
THE USE AND OCCUPANCY, OVER AND ABOVE THE AGREED RENT, FOR ANY
REMAINDER OF A TERM WHICH MAY HAVE EXISTED IN THE RESPECTIVE TENANTS
AFTER THEY WERE DISPOSSESSED, BUT ALSO ALLOWED EVIDENCE OF THE EXPENSES
INCURRED IN MOVING AND THE REINSTALLATION OF EQUIPMENT.  THE TRIAL
COURT'S INSTRUCTIONS MADE CLEAR THAT THE EVIDENCE WAS SUBMITTED TO THE
JURY NOT FOR A FINDING ON THE COST TO THE TENANTS OF RELOCATING THEIR
BUSINESSES BUT AS AN ELEMENT IN DETERMINING THE "VALUE" OF THEIR
TENANCIES FOR THAT PORTION OF THEIR TERM WHICH WAS LEFT UPON THE
TERMINATION OF THE LEASE.  THE ADMISSION OF THE EVIDENCE AND ITS
SUBMISSION TO THE JURY WAS APPROVED BY THE CIRCUIT COURT OF APPEALS ON
THE THEORY THAT CONSIDERATION OF SUCH ELEMENTS OF COST WAS COMPELLED BY
THE GENERAL MOTORS CASE.  323 U.S. 373.  THE COURT OF APPEALS
RECOGNIZED THAT HERE THE GOVERNMENT TOOK THE ENTIRE TERM OF ALL THE
LESSEES EXCEPT THE TOOL COMPANY AND POSSIBLY THE PETTY MOTOR COMPANY
BUT WAS OF THE OPINION THAT THE PRINCIPLES OF THE GENERAL MOTORS CASE
APPLIED WHEN ANY LEASEHOLD WAS TAKEN.  147 F.2D 912, 914.  IN SO
HOLDING, THE COURT OF APPEALS WAS IN ERROR. 

THE CONSTITUTION AND THE STATUTES DO NOT DEFINE THE MEANING OF JUST
COMPENSATION.  BUT IT HAS COME TO BE RECOGNIZED THAT JUST COMPENSATION
IS THE VALUE OF THE INTEREST TAKEN.  THIS IS NOT THE VALUE TO THE OWNER
FOR HIS PARTICULAR PURPOSES OR TO THE CONDEMNOR FOR SOME SPECIAL USE
BUT A SO-CALLED "MARKET VALUE."  IT IS RECOGNIZED THAT AN OWNER OFTEN
RECEIVES LESS THAN THE VALUE OF THE PROPERTY TO HIM BUT EXPERIENCE HAS
SHOWN THAT THE RULE IS REASONABLY SATISFACTORY.  SINCE "MARKET VALUE"
DOES NOT FLUCTUATE WITH THE NEEDS OF CONDEMNOR OR CONDEMNEE BUT WITH
GENERAL DEMAND FOR THE PROPERTY, EVIDENCE OF LOSS OF PROFITS, DAMAGE TO
GOOD WILL, THE EXPENSE OF RELOCATION AND OTHER SUCH CONSEQUENTIAL
LOSSES ARE REFUSED IN FEDERAL CONDEMNATION PROCEEDINGS.  MITCHELL V.
UNITED STATES, 267 U.S. 341, 344; UNITED STATES EX REL. T.V.A. V.
POWELSON, 319 U.S. 266, 281; POTOMAC ELECTRIC POWER CO. V. UNITED
STATES, 66 APP. D.C. 77, 85 F.2D 243; ORGEL, VALUATION UNDER EMINENT
DOMAIN, CHAP. V. FOR THE PURPOSES OF THESE CASES, IT IS IMMATERIAL
WHETHER THE GOVERNMENT ACTUALLY TOOK THE LEASEHOLDS OF THE TENANTS IN
ADDITION TO TAKING THE TEMPORARY USE OF THE FEE OR ONLY DESTROYED THE
TENANTS' RIGHT OF OCCUPANCY.  IF ANY PROPERTY IS TAKEN, COMPENSATION IS
REQUIRED.  CF. UNITED STATES V. WELCH, 217 U.S. 333. 

THERE WAS A COMPLETE TAKING OF THE ENTIRE INTEREST OF THE TENANTS IN
THE PROPERTY.  IT HAS BEEN URGED THAT TO MEASURE JUST COMPENSATION FOR
THE TAKING OF A LEASEHOLD BY ITS VALUE ON THE MARKET OR BY THE
DIFFERENCE BETWEEN A FAIR RENTAL AS OF THE TIME OF TAKING AND THE
AGREED RENT, IS UNFAIR.  IT IS SAID THE UNFAIRNESS COMES FROM THE FACT
THAT THERE IS REALLY NO MARKET FOR LEASEHOLDS; THAT THEIR VALUE IS
SOMETHING PECULIARLY PERSONAL TO THE LESSEE.  FN6  THE SAME THING IS
TRUE AS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES TO THE OWNER OF A FEE. 
WE THINK THE SOUNDER RULE UNDER THE FEDERAL STATUTES IS TO TREAT THE
CONDEMNATION OF ALL INTERESTS IN A LEASEHOLD LIKE THE CONDEMNATION OF
ALL INTERESTS IN THE FEE.  IN NEITHER SITUATION SHOULD EVIDENCE OF THE
COST OF REMOVAL OR RELOCATION BE ADMITTED.  SUCH COSTS ARE APART FROM
THE VALUE OF THE THING TAKEN.  THEY ARE PERSONAL TO THE LESSEE.  FN7
THE LESSEE WOULD HAVE TO MOVE AT THE END OF HIS TERM UNLESS THE LEASE
WAS RENEWED.  THE COMPENSATION FOR THE VALUE OF HIS LEASEHOLD COVERS
THE LOSS FROM THE PREMATURE TERMINATION EXCEPT IN THE UNUSUAL SITUATION
WHERE THERE IS A HIGHER COST FOR PRESENT RELOCATION THAN FOR A FUTURE. 

UNITED STATES V. GENERAL MOTORS CORP. WAS A DIFFERENT CASE.  IN IT
ONLY A PORTION OF THE LEASE WAS TAKEN.  WE THERE SAID, P. 382: 

"WHEN IT TAKES THE PROPERTY, THAT IS, THE FEE, THE LEASE, WHATEVER HE
MAY OWN, TERMINATING ALTOGETHER HIS INTEREST, UNDER THE ESTABLISHED LAW
IT MUST PAY HIM FOR WHAT IS TAKEN, NOT MORE; AND HE MUST STAND WHATEVER
INDIRECT OR REMOTE INJURIES ARE PROPERLY COMPREHENDED WITHIN THE
MEANING OF 'CONSEQUENTIAL DAMAGE' AS THAT CONCEPTION HAS BEEN DEFINED
IN SUCH CASES.  EVEN SO THE CONSEQUENCES OFTEN ARE HARSH.  FOR THESE
WHATEVER REMEDY MAY EXIST LIES WITH CONGRESS." 

THERE IS A FUNDAMENTAL DIFFERENCE BETWEEN THE TAKING OF A PART OF A
LEASE AND THE TAKING OF THE WHOLE LEASE.  THAT DIFFERENCE IS THAT THE
LESSEE MUST RETURN TO THE LEASEHOLD AT THE END OF THE GOVERNMENT'S USE
OR AT LEAST THE RESPONSIBILITY FOR THE PERIOD OF THE LEASE WHICH IS NOT
TAKEN RESTS UPON THE LESSEE.  THIS WAS BROUGHT OUT IN THE GENERAL
MOTORS DECISION.  FN8  BECAUSE OF THAT CONTINUING OBLIGATION IN ALL
TAKINGS OF TEMPORARY OCCUPANCY OF LEASEHOLDS, THE VALUE OF THE RIGHTS
OF THE LESSEES WHICH ARE TAKEN MAY BE AFFECTED BY EVIDENCE OF THE COST
OF TEMPORARY REMOVAL. 

UPON A NEW TRIAL, EACH TENANT, OTHER THAN THE INDEPENDENT PNEUMATIC
TOOL COMPANY, SHOULD BE PERMITTED TO PROVE DAMAGES FOR THE CONDEMNATION
OF ITS RIGHTS FOR ANY REMAINDER OF ITS TERM WHICH EXISTED AFTER ITS
OUSTER BY THE ORDER OF POSSESSION BUT NOT COSTS OF MOVING OR RELOCATION
N9.  THE REMAINDER WHICH MAY EXIST WILL DEPEND UPON THE UTAH LAW ON THE
REQUIREMENT FOR NOTICE TO TERMINATE THE TENANCIES AT WILL.  FN10  SOME
TENANTS OF THIS GROUP WILL NOT BE ENTITLED TO ANYTHING BECAUSE THE
NOTICE GIVEN THEM BY THE ORDER OF POSSESSION IS MORE THAN THE UTAH
STATUTORY REQUIREMENT.  THE VALUE OF THE REMAINDER OF THE TERM OF THE
PETTY MOTOR COMPANY'S LEASE INCLUDES THE VALUE OF THE RIGHT TO A
RENEWAL FOR A YEAR, IF SUCH RIGHT CONTINUES UNDER UTAH LAW, AS WELL AS
THE VALUE OF THE PERIOD ENDING OCTOBER 31, 1943.  THE MEASURE OF
DAMAGES IS THE VALUE OF THE USE AND OCCUPANCY OF THE LEASEHOLD FOR THE
REMAINDER OF THE TENANT'S TERM, PLUS THE VALUE OF THE RIGHT TO RENEW IN
THE LEASE OF PETTY, LESS THE AGREED RENT WHICH THE TENANT WOULD PAY FOR
SUCH USE AND OCCUPANCY.  REVERSED. 

FN1  SEE UNITED STATES V. 10,620 SQUARE FEET IN CANADIAN PACIFIC
BLDG., 62 F.SUPP.  115. 

FN2  NO ONE QUESTIONS THE AUTHORITY OF THE UNITED STATES TO CONDEMN
THIS TEMPORARY INTEREST.  SECOND WAR POWERS ACT, 56 STAT. 177, SEC.
201.  UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373. 

FN3  IN UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373, NOTE 3,
A DIFFERENT SITUATION EXISTED.  WHILE THE ESTATE THERE SOUGHT DID NOT
NECESSARILY EXPIRE DURING THE EXISTING NATIONAL EMERGENCY, THE ORDER
FOR POSSESSION, THE VERDICT AND THE JUDGMENT WERE FOR THAT PART OF THE
LEASEHOLD INTEREST IN THE PROPERTY EXTENDING FROM JUNE 19, 1942, TO
JUNE 30, 1943.  WE SAID:  "THE CASE NOW PRESENTED INVOLVES ONLY THE
ORIGINAL TAKING FOR ONE YEAR.  IF, ON REMAND, THE CASE BE TREATED AS
INVOLVING THE GOVERNMENT'S OPTION OF RENEWAL, THE ADDITIONAL VALUE OF
THAT INTEREST MUST BE INCLUDED IN THE COMPENSATION AWARDED."    FN4
THE CLAUSE READS AS FOLLOWS: 

"IF THE WHOLE OR ANY PART OF THE DEMISED PREMISES SHALL BE TAKEN BY
FEDERAL, STATE, COUNTY, CITY, OR OTHER AUTHORITY FOR PUBLIC USE, OR
UNDER ANY STATUTE, OR BY RIGHT OF EMINENT DOMAIN, THEN WHEN POSSESSION
SHALL BE TAKEN THEREUNDER OF SAID PREMISES, OR ANY PART THEREOF, THE
TERM HEREBY GRANTED AND ALL RIGHTS OF THE LESSEE HEREUNDER SHALL
IMMEDIATELY CEASE AND TERMINATE, AND THE LESSEE SHALL NOT BE ENTITLED
TO ANY PART OF ANY AWARD THAT MAY BE MADE FOR SUCH TAKING, NOR TO ANY
DAMAGES THEREFOR EXCEPT THAT THE RENT SHALL BE ADJUSTED AS OF THE DATE
OF SUCH TERMINATION OF THE LEASE." 

FN5  SEE UNITED STATES V. 10,620 SQUARE FEET IN CANADIAN PACIFIC
BLDG., 62 F.SUPP.  115; UNITED STATES V. 8286 SQ. FT. OF SPACE, 61
F.SUPP.  737, 740-43; UNITED STATES V. 21,815 SQUARE FEET OF LAND, 59
F.SUPP.  219; UNITED STATES V. 3.5 ACRES OF LAND, 57 F.SUPP.  548;
UNITED STATES V. IMPROVED PREMISES, 54 F.SUPP.  469, 472; GOODYEAR SHOE
MACHINERY CO. V. BOSTON TERMINAL CO., 176 MASS. 115, 57 N.E. 214.  CF.
UNITED STATES V. ENTIRE FIFTH FLOOR IN BUTTERICK BLDG., 54 F.SUPP. 
258. 

FN6  SEE METROPOLITAN WEST SIDE ELEVATED R. CO. V. SIEGEL, 161 ILL.
638, 44 N.E. 276; MCMILLIN PRINTING CO. V. PITTSBURG, C. & W.R. CO.,
216 PA. 504, 65 A. 1091. 

FN7  COMPARE UNITED STATES V. IMPROVED PREMISES, 54 F.SUPP.  469,
472; UNITED STATES V. ENTIRE FIFTH FLOOR IN BUTTERICK BLDG., IDEM, 261;
UNITED STATES V. CERTAIN PARCELS OF LAND, IDEM, 562; WM. WRIGLEY, JR.,
CO. V. UNITED STATES, 75 CT. CLS. 569; THERMAL SYNDICATE, LTD. V.
UNITED STATES, 81 CT. CLS. 446, 454. 

FN8  323 U.S. 373, 380, 383: 

"THE QUESTION POSED IN THIS CASE THEN IS, SHALL A DIFFERENT MEASURE
OF COMPENSATION APPLY WHERE THAT WHICH IS TAKEN IS A RIGHT OF TEMPORARY
OCCUPANCY OF A BUILDING EQUIPPED FOR THE CONDEMNEE'S BUSINESS, FILLED
WITH HIS COMMODITIES, AND PRESUMABLY TO BE REOCCUPIED AND USED, AS
BEFORE, TO THE END OF THE LEASE TERM ON THE TERMINATION OF THE
GOVERNMENT'S USE?" 

"SOME OF THE ELEMENTS WHICH WOULD CERTAINLY AND DIRECTLY AFFECT THE
MARKET PRICE AGREED UPON BY A TENANT AND A SUBLESSEE IN SUCH AN
EXTRAORDINARY AND UNUSUAL TRANSACTION WOULD BE THE REASONABLE COST OF
MOVING OUT THE PROPERTY STORED AND PREPARING THE SPACE FOR OCCUPANCY BY
THE SUBTENANT.  THAT COST WOULD INCLUDE LABOR, MATERIALS, AND
TRANSPORTATION.  AND IT MIGHT ALSO INCLUDE THE STORAGE OF GOODS AGAINST
THEIR SALE OR THE COST OF THEIR RETURN TO THE LEASED PREMISES.  SUCH
ITEMS MAY BE PROVED, NOT AS INDEPENDENT ITEMS OF DAMAGE BUT TO AID IN
THE DETERMINATION OF WHAT WOULD BE THE USUAL - THE MARKET - PRICE WHICH
WOULD BE ASKED AND PAID FOR SUCH TEMPORARY OCCUPANCY OF THE BUILDING
THEN IN USE UNDER A LONG-TERM LEASE." 

FN9  THE FACT THAT SOME TENANTS HAD OCCUPIED THEIR LEASEHOLDS BY
MUTUAL CONSENT FOR LONG PERIODS OF YEARS DOES NOT ADD TO THEIR RIGHTS. 
EMERY V. BOSTON TERMINAL CO., 178 MASS. 172, 185, 59 N.E. 763: 

"IT APPEARED THAT THE OWNERS HAD BEEN IN THE HABIT OF RENEWING THE
PETITIONERS' LEASE FROM TIME TO TIME, AND AN ATTEMPT WAS MADE TO GIVE
THIS FACT THE ASPECT OF AN ENGLISH CUSTOMARY TENANT RIGHT.  THE
EVIDENCE MERELY SHOWED THAT THE LANDLORDS AND THE TENANTS WERE MUTUALLY
SATISFIED AND WERE LIKELY TO KEEP ON TOGETHER.  IT ADDED NOTHING EXCEPT
BY WAY OF CORROBORATION TO THE TESTIMONY THAT THEY BOTH INTENDED TO
KEEP ON.  CHANGEABLE INTENTIONS ARE NOT AN INTEREST IN LAND, AND
ALTHOUGH NO DOUBT SUCH INTENTIONS MAY HAVE ADDED PRACTICALLY TO THE
VALUE OF THE PETITIONERS' HOLDING, THEY COULD NOT BE TAKEN INTO ACCOUNT
IN DETERMINING WHAT THE RESPONDENT SHOULD PAY.  THEY ADDED NOTHING TO
THE TENANTS' LEGAL RIGHTS, AND LEGAL RIGHTS ARE ALL THAT MUST BE PAID
FOR.  EVEN IF SUCH INTENTIONS ADDED TO THE SALEABLE VALUE OF THE LEASE,
THE ADDITION WOULD REPRESENT A SPECULATION ON A CHANCE, NOT A LEGAL
RIGHT.  THE COURT WAS RIGHT IN EXCLUDING EXPERT EVIDENCE AS TO AN
INCREASE IN VALUE FROM THAT SOURCE." 

FN10  UNITED STATES EX REL. T.V.A. V. POWELSON, 319 U.S. 266, 279. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I AGREE WITH THE RESULT AND WITH THE COURT'S OPINION, BUT WITH AN
IMPORTANT RESERVATION WHICH I THINK SHOULD BE MADE EXPRESSLY. 

IN UNITED STATES V. GENERAL MOTORS CORP., 323 U.S. 373, THE PROBLEM
WAS STATED AS ONE OF FIRST IMPRESSION, NAMELY, TO ASCERTAIN THE JUST
COMPENSATION THE FIFTH AMENDMENT REQUIRES WHERE, UNDER POWER OF EMINENT
DOMAIN, TEMPORARY OCCUPANCY OF PART OF A LEASED BUILDING IS TAKEN FROM
A TENANT HOLDING UNDER A LONG-TERM LEASE.  THE COURT DISTINGUISHED THE
CASE FROM OTHERS WHERE THE TAKING IS OF THE OWNER'S ENTIRE INTEREST,
WHETHER A FEE, A TERM OF YEARS OR SOME OTHER INTEREST.  SENSING THE
DANGER OF APPLYING TO SUCH A SITUATION THE STRICT RULES LIMITING THE
AMOUNT OF COMPENSATION IN THE LATTER TYPES OF CASES, THE COURT SAID
THIS WOULD OPEN A WAY FOR THE GOVERNMENT TO DEVISE ITS CONDEMNATION, BY
CHOPPING THE OWNER'S INTEREST INTO BITS, TAKING SOME AND LEAVING HIM
WITH OTHERS IN SUSPENDED ANIMATION, SO THAT THE AMENDMENT'S GUARANTY
MIGHT BECOME AN INSTRUMENT OF CONFISCATION, NOT ONE OF JUST
COMPENSATION FOR WHAT WAS TAKEN.  SUCH A PROCEDURE, THE COURT FURTHER
STATED, WOULD BE "NEITHER THE 'TAKING' NOR THE 'JUST COMPENSATION' THE
FIFTH AMENDMENT CONTEMPLATES."  323 U.S. AT 382. 

THE NOVELTY OF SUCH A FORM OF TAKING, TOGETHER WITH THE OBVIOUSLY
CONFISCATORY CONSEQUENCES, IN A PRACTICAL SENSE, FOR THE OWNER, LED THE
COURT TO HOLD THAT THE USUAL MEASURE OF JUST COMPENSATION APPLICABLE
WHEN ALL THE OWNER'S LEASEHOLD IS CONDEMNED, NAMELY, PAYMENT OF ONLY
THE LONG-TERM RENTAL OF AN EMPTY BUILDING FIXED BY THE TERMS OF HIS
LEASE OR BY MARKET VALUE, OR LESS, WOULD NOT SUFFICE TO COMPENSATE FOR
CARVING OUT OF THE LEASE A RIGHT OF "TEMPORARY USE."  OTHER ELEMENTS
WERE REQUIRED TO BE TAKEN INTO ACCOUNT AS EVIDENCE OF THE VALUE OF WHAT
WAS TAKEN. 

THESE INCLUDED (1) "WHAT WOULD BE THE MARKET RENTAL VALUE OF SUCH A
BUILDING ON A LEASE BY THE LONG-TERM TENANT TO THE TEMPORARY OCCUPIER,"
323 U.S. AT 382, WHICH IN ADDITION TO THE BEARING OF THE LONG-TERM
RENTAL AS ONE ELEMENT WOULD INCLUDE AS OTHER ELEMENTS AFFECTING
"CERTAINLY AND DIRECTLY  ...  THE MARKET PRICE AGREED UPON BY A TENANT
AND A SUBLESSEE IN SUCH AN EXTRAORDINARY AND UNUSUAL TRANSACTION," 323
U.S. AT 383, (2) THE REASONABLE COST OF MOVING OUT THE PROPERTY STORED
ON THE PREMISES AND OF PREPARING THE SPACE FOR OCCUPANCY BY THE
SUBTENANT, INCLUDING THE COST OF LABOR, MATERIALS AND TRANSPORTATION;
AND POSSIBLY ALSO THE COST OF STORAGE OF GOODS REMOVED AGAINST THEIR
SALE OR THE COST OF THEIR RETURN TO THE PREMISES.  IN ADDITION, FOR
FIXTURES AND PERMANENT EQUIPMENT DESTROYED OR DEPRECIATED IN VALUE BY
REASON OF THE TAKING, THE COURT HELD THAT THE TENANT WHOSE LEASE WAS SO
CUT UP WAS ENTITLED TO COMPENSATION AS FOR PROPERTY TAKEN, UNDER THE
SETTLED RULE OF CITED AUTHORITIES.  323 U.S. AT 383. 

FINALLY, IN A FOOTNOTE THE COURT POINTED OUT THAT AFTER JUDGMENT THE
GOVERNMENT HAD BEEN ALLOWED TO AMEND ITS PETITION SO AS TO INCLUDE IN
THE INTEREST TAKEN A YEARLY RIGHT OF RENEWAL, AFTER WHICH THE TRIAL
COURT ENTERED A NEW JUDGMENT FOR THE ORIGINAL FIGURE.  STATING THAT
THESE FACTS WERE NOT TAKEN TO ALTER THE QUESTION PRESENTED HERE, WHICH
INVOLVED ONLY THE ORIGINAL TAKING FOR ONE YEAR, THE COURT WENT ON
EXPRESSLY TO RULE:  "IF, ON REMAND, THE CASE BE TREATED AS INVOLVING
THE GOVERNMENT'S OPTION OF RENEWAL, THE ADDITIONAL VALUE OF THAT
INTEREST MUST BE INCLUDED IN THE COMPENSATION AWARDED."  323 U.S. AT
376, NOTE 3. 

THUS THE COURT APPLIED A RULE OF COMPENSATION TO THE CASE OF CARVING
OUT A TEMPORARY OR SHORT-TERM USE FROM A LONGER TERM VERY DIFFERENT
FROM THAT GENERALLY APPLICABLE WHEN THE OWNER'S ENTIRE INTEREST IS
TAKEN.  THE PURPOSE AND THE BASIS FOR THIS WERE TO GIVE SUBSTANCE, IN
PRACTICAL EFFECT, TO THE AMENDMENT'S EXPLICIT MANDATE FOR PAYMENT OF
"JUST COMPENSATION" IN CASES OF SUCH EXTRAORDINARY "TAKINGS" AND TO
PREVENT THOSE WORDS FROM BEING WHITTLED DOWN BY LEGALISTIC CONSTRUCTION
INTO MEANS FOR PRACTICAL CONFISCATION. 

IN THIS CASE THE COURT HAS CONSTRUED ALL OF THE TAKINGS AS BEING OF
THE TENANT-OWNERS' ENTIRE INTERESTS.  THIS IS CLEARLY THE CASE, ON THE
RECORD, WITH RESPECT TO ALL EXCEPT PETTY MOTOR CO. AS TO IT I HAVE
DOUBT BUT I ACCEPT THE COURT'S CONSTRUCTION THAT THE GOVERNMENT HAS
CONDEMNED ITS ENTIRE LEASEHOLD INTEREST IN THE PREMISES AND THEREFORE
MUST PAY THE FULL VALUE OF THAT TERM ACCORDING TO THE USUAL RULES IN
SUCH CASES. 

MY RESERVATION, HOWEVER, HAS TO DO WITH A POSSIBILITY THIS RECORD
DOES NOT PRESENT AS AN ACCOMPLISHED FACT IN THE CASE OF THE PETTY CO.,
BUT DOES PRESENT AS A CONTINGENCY WHICH MIGHT BE REALIZED AND, IN THAT
EVENT, WOULD HAVE A DIRECT AND INESCAPABLE RELATION TO THE RULING
CONCERNING THE QUANTUM OF COMPENSATION IN THE GENERAL MOTORS CASE. 

IN THAT CASE THE INTEREST TAKEN WAS FOR ONE YEAR OUT OF A TWENTY-YEAR
TERM WHICH HAD SIX YEARS TO RUN FROM THE TIME OF THE ORIGINAL
CONDEMNATION.  THERE WAS ALSO ADDED BY THE LATER AMENDMENT THE RIGHT OF
RENEWAL FROM YEAR TO YEAR WHICH, IF EXERCISED, MIGHT HAVE EXTENDED THE
TERM TAKEN TO THE END OF THE LEASEHOLD INTEREST. 

IN THIS CASE A CONVERSE SORT OF TAKING IS PRESENTED BY THE PETTY
MOTOR SITUATION.  THAT COMPANY HELD A LEASE EXPIRING OCTOBER 31, 1943,
WITH AN OPTION FOR AN ADDITIONAL YEAR WHICH IF EXERCISED WOULD EXTEND
THE TERM TO OCTOBER 31, 1944.  THE CONDEMNATION PETITION WAS FILED
NOVEMBER 9, 1942, WHEN THE PETTY LEASE HAD ALMOST ONE YEAR TO RUN IN
ANY EVENT AND TWO IF THE OPTION SHOULD BE EXERCISED.  THE GOVERNMENT
SOUGHT TO TAKE THE USE OF THE BUILDING THROUGH JUNE 30, 1945, BUT WITH
THE OPTION TO SURRENDER THE PREMISES ON JUNE 30, 1943, OR JUNE 30,
1944, ON GIVING SIXTY DAYS ADVANCE NOTICE IN WRITING. 

IT IS THIS OPTION WHICH I THINK MAKES DUBIOUS THE RULING THAT ALL OF
THE PETTY MOTOR COMPANY'S INTEREST WAS "TAKEN."  IN MY OPINION IT WAS
ONLY "TAKEN" CONTINGENTLY.  FOR, IF THE OPTION IS VALID, QUITE
OBVIOUSLY THE GOVERNMENT WAS FREE TO SURRENDER, BY GIVING NOTICE, ON
JUNE 30, 1943, IN WHICH EVENT PETTY'S LEASE WOULD HAVE BEEN IN FORCE
UNTIL THE FOLLOWING OCTOBER 31 IN ANY EVENT, OR ON JUNE 30, 1944, IN
WHICH CASE PETTY'S LEASE MIGHT HAVE CONTINUED IN FORCE UNTIL OCTOBER
31, 1944.  IN EITHER EVENT THE CASE WOULD HAVE FALLEN SQUARELY WITHIN
THE GENERAL MOTORS SITUATION AND RULING. 

IN MY OPINION THAT RULING AND THE REQUIREMENT OF PAYING COMPENSATION
ACCORDING TO THE MEASURE IT PRESCRIBES APPLY WHETHER THE GOVERNMENT
CARVES OUT PART OF THE TENANT-OWNER'S TERM BY ONE METHOD OF STATING
WHAT IT TAKES OR ANOTHER.  THAT IS, FOR THIS PURPOSE, IT MAKES NO
DIFFERENCE WHETHER THE GOVERNMENT "TAKES" THE TEMPORARY USE FOR PART OF
THE TERM BUT ADDS TO THIS A RIGHT OF RENEWAL PERIODICALLY WHICH IF
EXERCISED WILL EXTEND THE TERM TAKEN BEYOND THE TERM OF THE LEASE; OR,
ON THE OTHER HAND, PURPORTS TO TAKE A TERM WHICH EXTENDS BEYOND THAT OF
THE LEASEHOLD INTEREST, BUT RESERVES THE RIGHT TO CUT THIS DOWN
PERIODICALLY SO THAT IN FACT IT MAY SURRENDER THE PREMISES BEFORE THE
LEASEHOLD EXPIRES AND THUS CARVE OUT OF IT A SHORTER TERM, JUST AS IN
THE GENERAL MOTORS TAKING. 

WHETHER THE CHOPPING UP IS ACCOMPLISHED ONE WAY OR THE OTHER, THE
EFFECTS FOR THE OWNER ARE THE SAME, THE "TAKING" IS IN SUBSTANCE THE
SAME, AND THE COMPENSATION IS REQUIRED, UNDER THE GENERAL MOTORS
DECISION, TO BE THE SAME.  THAT RULING CANNOT BE AVOIDED BY INVERTING
THE LENGTH OF THE TERM SPECIFIED AND, CORRELATIVELY, THE CHARACTER OF
THE OPTION ADDED.  NOR CAN IT BE AVOIDED BY CONSTRUING THE TERM TAKEN,
IN VIEW OF THE CONTINGENT OPTION, IN CASES OF THE PETTY TYPE AS
INCLUDING ALL OF THE INTEREST OF THE LESSEE, IF IN FACT THE GOVERNMENT
EXERCISES THE OPTION AND SURRENDERS THE PREMISES BEFORE THE LESSEE'S
TERM EXPIRES.  UPON SUCH A SHOWING THE GENERAL MOTORS RULE WOULD APPLY
AND THE OWNER-LESSEE WOULD BE ENTITLED TO RECOVER COMPENSATION
INCLUDING ALL OF THE ELEMENTS SPECIFIED IN THAT RULE, SUBJECT ONLY TO
MAKING PROOF OF THEM. 

THIS QUESTION I THINK SUFFICIENTLY IMPORTANT TO BE EXPLICITLY
RESERVED FOR DECISION WHEN A CASE ARISES REQUIRING APPLICATION OF THE
GENERAL MOTORS RULE TO SUCH A SITUATION.  I DO NOT UNDERSTAND THE COURT
TO RULE TO THE CONTRARY, SINCE THERE IS NO SHOWING ON THIS RECORD THAT
THE GOVERNMENT HAS EXERCISED ITS OPTION.  I THEREFORE CONCUR IN THE
DECISION AS IT IS RENDERED UPON THE RECORD WHICH HAS BEEN PRESENTED. 
..END :
















LABOR BOARD V. CHENEY LUMBER CO., 327 U.S. 385 


NO. 319.  ARGUED JANUARY 9, 10, 1946.  - DECIDED FEBRUARY 25, 1946.  -
149 F.2D 333, REVERSED. 


1.  UPON FINDINGS THAT AN EMPLOYER HAD ENGAGED IN UNFAIR LABOR
PRACTICES IN VIOLATION OF SEC. 8 OF THE NATIONAL LABOR RELATIONS ACT,
THE NATIONAL LABOR RELATIONS BOARD ORDERED THE EMPLOYER TO CEASE AND
DESIST FROM (A) PROHIBITED DISCRIMINATION AGAINST EMPLOYEES IN REGARD
TO HIRE OR TENURE, AND "(B) IN ANY OTHER MANNER INTERFERING WITH,
RESTRAINING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF 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 CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION, AS GUARANTEED IN SECTION
7 OF THE ACT."  UPON THE BOARD'S PETITION FOR ENFORCEMENT OF THE ORDER,
THE CIRCUIT COURT OF APPEALS STRUCK OUT PARAGRAPH (B).  HELD THAT,
SINCE NO OBJECTION TO THE PARAGRAPH WAS RAISED BEFORE THE BOARD OR ANY
AGENT THEREOF, AND SINCE THE FAILURE OR NEGLECT WAS UNEXCUSED, THE
CIRCUIT COURT OF APPEALS, BY VIRTUE OF SEC. 10(E) OF THE ACT, WAS
WITHOUT AUTHORITY TO STRIKE THE PARAGRAPH FROM THE ORDER.  P. 387. 

2.  LABOR BOARD V. EXPRESS PUBLISHING CO., 312 U.S. 426,
DIFFERENTIATED.  P. 387. 

NATIONAL LABOR RELATIONS BOARD V. CHENEY CALIFORNIA LUMBER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

UPON A PETITION TO THE CIRCUIT COURT OF APPEALS FOR ENFORCEMENT OF AN
ORDER OF THE LABOR BOARD, THE COURT MODIFIED THE ORDER AND DECREED
ENFORCEMENT AS MODIFIED.  149 F.2D 333.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 706.  REVERSED, P. 389. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

CHENEY CALIFORNIA LUMBER COMPANY, THE RESPONDENT, OPERATED A SAWMILL
AT GREENVILLE, CALIFORNIA.  SOME EMPLOYEES OF THE COMPANY WERE MEMBERS
OF LUMBER AND SAWMILL WORKERS, LOCAL 2647, AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR.  THE UNION COMPLAINED TO THE NATIONAL LABOR
RELATIONS BOARD THAT THE COMPANY HAD ENGAGED IN UNFAIR LABOR PRACTICES,
IN VIOLATION OF SEC. 8 OF THE WAGNER ACT, 49 STAT. 449, 452, 29 U.S.C.
SEC. 158.  FOLLOWING THE USUAL PROCEDURE, THERE WAS A HEARING BEFORE A
TRIAL EXAMINER WHO MADE AN INTERMEDIATE REPORT, INCLUDING SPECIFIC
RECOMMENDATIONS FOR A CEASE-AND-DESIST ORDER.  THE COMPANY FILED NO
EXCEPTIONS TO THIS REPORT, NOR DID IT REQUEST AN ORAL ARGUMENT BEFORE
THE BOARD.  UPON DUE CONSIDERATION, THE BOARD ADOPTED THE FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS OF THE TRIAL EXAMINER.  54 N.L.R.B.
205.  THEREUPON THE BOARD ASKED THE CIRCUIT COURT OF APPEALS FOR THE
NINTH CIRCUIT TO ENTER A DECREE UPON ITS ORDER.  THE COMPANY THEN
PROPOSED MODIFICATIONS OF THE BOARD'S ORDER, WHICH WERE GRANTED BY THE
COURT BELOW.  149 F.2D 333.  THE GOVERNMENT PETITIONED FOR CERTIORARI
URGING THAT ONE OF THE CHANGES MADE BY THE CIRCUIT COURT OF APPEALS WAS
BASED ON A MISCONCEPTION OF LABOR BOARD V. EXPRESS PUBLISHING CO., 312
U.S. 426, AS TO THE ALLOWABLE SCOPE OF THE BOARD'S POWER "TO EFFECTUATE
THE POLICIES" OF THE ACT.  SEC. 10(C), 49 STAT. 454, 29 U.S.C. SEC.
160(C).  SO WE BROUGHT THE CASE HERE.  326 U.S. 706.  UPON THE
ARGUMENT, THIS WAS THE ONLY MODIFICATION TO WHICH THE GOVERNMENT
OBJECTED.  WE SHALL NOT CONSIDER THE OTHERS.  THE COURT BELOW STRUCK
OUT FROM THE BOARD'S ORDER PARAGRAPH 1(B) WHEREBY THE COMPANY WAS
ORDERED, AFTER APPROPRIATE TREATMENT OF THE UNFAIR LABOR PRACTICE
ARISING FROM PROHIBITED DISCHARGE OF EMPLOYEES, TO CEASE AND DESIST
FROM 

"(B)  IN ANY OTHER MANNER INTERFERING WITH, RESTRAINING, OR COERCING
ITS EMPLOYEES IN THE EXERCISE OF 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
CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID OR PROTECTION, AS GUARANTEED IN SECTION 7 OF THE ACT." 

THE COURT FOUND WARRANT FOR ITS EXCISION OF THIS PROVISION IN LABOR
BOARD V. EXPRESS PUBLISHING CO., SUPRA.  THAT CASE, HOWEVER, RECOGNIZED
THAT IT WAS WITHIN THE POWER OF THE BOARD TO MAKE AN ORDER PRECISELY
LIKE 1(B).  IT MERELY HELD THAT WHETHER SUCH AN INCLUSIVE PROVISION AS
1(B) IS JUSTIFIED IN A PARTICULAR CASE DEPENDS UPON THE CIRCUMSTANCES
OF THE PARTICULAR CASE BEFORE THE BOARD.  SEE 312 U.S. AT 433, 437-38. 
HERE THE TRIAL EXAMINER RECOMMENDED THE INCLUSION OF 1(B) ON THE BASIS
OF HIS REVIEW OF PAST HOSTILITIES BY THE COMPANY AGAINST EFFORTS AT
UNIONIZATION; NO EXCEPTION WAS MADE EITHER TO THE FINDINGS OR TO THIS
RECOMMENDATION; UPON FULL CONSIDERATION OF THE RECORD THE BOARD ADOPTED
THE TRIAL EXAMINER'S RECOMMENDATION; NO OBJECTION WAS RAISED BY THE
COMPANY UNTIL AFTER THE BOARD SOUGHT JUDICIAL ENFORCEMENT OF ITS
ORDER.  THE OBJECTION CAME TOO LATE. 

WHEN JUDICIAL REVIEW IS AVAILABLE AND UNDER WHAT CIRCUMSTANCES, ARE
QUESTIONS (APART FROM WHATEVER REQUIREMENTS THE CONSTITUTION MAY MAKE
IN CERTAIN SITUATIONS) THAT DEPEND ON THE PARTICULAR CONGRESSIONAL
ENACTMENT UNDER WHICH JUDICIAL REVIEW IS AUTHORIZED.  ORDERS OF THE
NATIONAL LABOR RELATIONS BOARD ARE ENFORCEABLE BY DECREES OF CIRCUIT
COURTS OF APPEALS.  IN SUCH AN ENFORCEMENT PROCEEDING, A COURT OF
APPEALS MAY ENFORCE OR MODIFY OR SET ASIDE THE BOARD'S ORDER.  SEC.
10(E), 49 STAT. 454, 29 U.S.C. SEC. 160(E).  SINCE THE COURT IS
ORDERING ENTRY OF A DECREE, IT NEED NOT RENDER SUCH A DECREE IF THE
BOARD HAS PATENTLY TRAVELED OUTSIDE THE ORBIT OF ITS AUTHORITY SO THAT
THERE IS, LEGALLY SPEAKING, NO ORDER TO ENFORCE.  BUT THE PROPER SCOPE
OF A BOARD ORDER UPON FINDING UNFAIR LABOR PRACTICES CALLS FOR AMPLE
DISCRETION IN ADAPTING REMEDY TO VIOLATION.  WE HAVE SAID THAT "IN THE
NATURE OF THINGS CONGRESS COULD NOT CATALOGUE ALL THE DEVICES AND
STRATAGEMS FOR CIRCUMVENTING THE POLICIES OF THE ACT.  NOR COULD IT
DEFINE THE WHOLE GAMUT OF REMEDIES TO EFFECTUATE THESE POLICIES IN AN
INFINITE VARIETY OF SPECIFIC SITUATIONS.  CONGRESS MET THESE
DIFFICULTIES BY LEAVING THE ADAPTATION OF MEANS TO END TO THE EMPIRIC
PROCESS OF ADMINISTRATION.  THE EXERCISE OF THE PROCESS WAS COMMITTED
TO THE BOARD, SUBJECT TO LIMITED JUDICIAL REVIEW."  PHELPS DODGE CORP.
V. LABOR BOARD, 313 U.S. 177, 194. 

A LIMITATION WHICH CONGRESS HAS PLACED UPON THE POWER OF COURTS TO
REVIEW ORDERS OF THE LABOR BOARD IS DECISIVE OF THIS CASE.  SECTION
10(E) OF THE ACT COMMANDS THAT "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."  WE HAVE HERETOFORE
HAD OCCASION TO RESPECT THIS EXPLICIT DIRECTION OF CONGRESS.  MARSHALL
FIELD & CO. V. LABOR BOARD, 318 U.S. 253; AND SEE MAY DEPARTMENT STORES
CO. V. LABOR BOARD, 326 U.S. 376, 386, N. 5.  BY THIS PROVISION,
CONGRESS HAS SAID IN EFFECT THAT IN A PROCEEDING FOR ENFORCEMENT OF THE
BOARD'S ORDER THE COURT IS TO RENDER JUDGMENT ON CONSENT AS TO ALL
ISSUES THAT WERE CONTESTABLE BEFORE THE BOARD BUT WERE IN FACT NOT
CONTESTED.  CF. POPE V. UNITED STATES, 323 U.S. 1.  WE CAN SAY OF THIS
CASE, AS WAS SAID OF THE MARSHALL FIELD CASE, SUPRA, THAT IT "GIVES
EMPHASIS TO THE SALUTARY POLICY ADOPTED BY SEC. 10(E) OF AFFORDING THE
BOARD OPPORTUNITY TO CONSIDER ON THE MERITS QUESTIONS TO BE URGED UPON
REVIEW OF ITS ORDER."  MARSHALL FIELD & CO. V. LABOR BOARD, SUPRA, AT
256.  THE APPROPRIATENESS OF SUCH A PROHIBITION AS THE BOARD'S ORDER
CONTAINS DEPENDS, AS THE EXPRESS PUBLISHING COMPANY CASE, SUPRA,
ABUNDANTLY SHOWS, UPON EVIDENCE FOUND BY THE BOARD DISCLOSING A COURSE
OF CONDUCT AGAINST WHICH SUCH AN ORDER MAY BE THE ONLY PROPER REMEDY. 
THE BOARD HERE SO FOUND.  JUSTIFICATION OF SUCH AN ORDER, WHICH
NECESSARILY INVOLVES CONSIDERATION OF THE FACTS WHICH ARE THE
FOUNDATION OF THE ORDER, IS NOT OPEN FOR REVIEW BY A COURT IF NO PRIOR
OBJECTION HAS BEEN URGED BEFORE THE CASE GETS INTO COURT AND THERE IS A
TOTAL WANT OF EXTRAORDINARY CIRCUMSTANCES TO EXCUSE "THE FAILURE OR
NEGLECT TO URGE SUCH OBJECTION  ..."  CONGRESS DESIRED THAT ALL
CONTROVERSIES OF FACT, AND THE ALLOWABLE INFERENCES FROM THE FACTS, BE
THRESHED OUT, CERTAINLY IN THE FIRST INSTANCE, BEFORE THE BOARD.  THAT
IS WHAT THE BOARD IS FOR.  IT WAS THEREFORE NOT WITHIN THE POWER OF THE
COURT BELOW TO MAKE THE DELETION IT MADE.  JUDGMENT REVERSED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE STONE, CONCURRING. 

I CONCUR ON A GROUND WHICH THE COURT'S OPINION POINTS OUT AND WHICH
IS ALONE SUFFICIENT TO SUSTAIN ITS DECISION, NAMELY, THAT THE COURT
BELOW ERRONEOUSLY APPLIED LABOR BOARD V. EXPRESS PUBLISHING CO., 312
U.S. 426.  BUT I CANNOT SAY THAT WHEN THE COURT BELOW WAS APPEALED TO
AS A COURT OF EQUITY TO ENFORCE BY ITS INJUNCTION THE BOARD'S ORDER,
SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT RENDERED THE COURT
POWERLESS TO FRAME ITS OWN INJUNCTION CONSISTENTLY WITH THE RECORD, ON
WHICH THAT SECTION REQUIRES IT TO ACT, AND IN CONFORMITY TO ACCEPTED
PRINCIPLES GOVERNING THE SCOPE OF THE INJUNCTION; OR THAT IF THE TABLES
WERE TURNED THE SECTION WOULD REQUIRE THE REVIEWING COURT TO REPEAT, BY
THE EXCESSIVE SCOPE OF ITS INJUNCTION, THE VERY ABUSE OF POWER
CONDEMNED BY THE EXPRESS PUBLISHING COMPANY CASE. 

THE PROHIBITION BY SEC. 10(E) OF THE COURT'S CONSIDERATION OF
OBJECTIONS WHICH THE PARTIES DID NOT URGE BEFORE THE BOARD IS A
LIMITATION UPON THE COURT'S REVIEW OF THE GROUNDS FOR GRANTING OR
DENYING RELIEF.  THIS COURT HAS TREATED IT AS SUCH.  SEE MARSHALL FIELD
& CO. V. LABOR BOARD, 318 U.S. 253.  BUT WE HAVE NOT HELD THAT SEC.
10(E) COULD, AND I THINK IT CANNOT RIGHTLY, BE CONSTRUED TO BE ALSO A
LIMITATION ON THE COURT'S POWER TO CONFORM ITS OWN PROCESS TO ACCEPTED
LEGAL STANDARDS APPLIED TO THE "ENTIRE RECORD" WHICH SEC. 10(E)
REQUIRES TO BE FILED WITH IT.  NOR IS THAT PROHIBITION A COMMAND TO THE
COURT TO ACT AS A MERE MINISTERIAL AGENCY TO EXECUTE THE ORDER OF THE
BOARD, WITHOUT REGARD TO THOSE STANDARDS WHICH CONTROL THE COURT'S USE
OF ITS OWN PROCESS, EVEN THOUGH THE BOARD AND THE PARTIES HAVE IGNORED
THEM. 

ONLY RECENTLY WE HAVE HELD THAT THE IMPOSITION OF A MANDATORY DUTY ON
A FEDERAL COURT OF EQUITY TO RESTRAIN VIOLATIONS OF A STATUTE IS NOT TO
BE TAKEN AS DEPRIVING THE COURT OF ITS TRADITIONAL POWER TO ADMINISTER
ITS REMEDIES ACCORDING TO ITS OWN GOVERNING PRINCIPLES AND IN
CONFORMITY TO THE STANDARDS OF PUBLIC INTEREST.  SEE HECHT CO. V.
BOWLES, 321 U.S. 321, 331.  IN THAT CASE WE HELD THAT A COMMAND
EXPLICITLY ADDRESSED TO A COURT OF EQUITY, BY SEC. 205(A) OF THE
EMERGENCY PRICE CONTROL ACT OF 1942, TO GRANT AN INJUNCTION ENFORCING
THE ACT WHEN VIOLATION OF IT IS SHOWN, DID NOT DEPRIVE THE COURT OF ITS
EQUITABLE DISCRETION TO GRANT OR WITHHOLD AN INJUNCTION.  IT HAS BEEN
WELL SAID THAT SEC. 205(A), WHICH DIRECTS THAT THE COURT UPON SHOWING
OF VIOLATION "SHALL" GRANT THE INJUNCTION, "DOES NOT CHANGE THE
HISTORIC CONDITIONS FOR THE EXERCISE BY COURTS OF EQUITY OF THEIR POWER
TO ISSUE INJUNCTIONS  ..."  321 U.S. 331. 

IT SHOULD LIKEWISE BE HELD THAT THE PRESENT STATUTE DOES NOT ALTER
THE POWER OF A COURT OF EQUITY TO FRAME ITS INJUNCTION ACCORDING TO
EQUITABLE PRINCIPLES APPLIED IN THE LIGHT OF THE RECORD ON WHICH IT
MUST ACT.  HERE THE STATUTE IS NOT MANDATORY.  IT DOES NOT PURPORT TO
CURTAIL THE COURT'S POWER TO DEFINE THE SCOPE OF ITS PROCESS.  THE
ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING ASIDE IN
WHOLE OR IN PART THE ORDER OF THE BOARD."  THIS EMPHASIZES WHAT WAS
IMPLICIT IN THE STATUTE INVOLVED IN THE HECHT CASE, AND MADE EXPLICIT
BY THE OPINION, THAT WHEN A STATUTE AUTHORIZES AN APPEAL TO EQUITY TO
ENFORCE A LIABILITY CREATED BY STATUTE, THE EXERCISE IS INVOKED OF
THOSE POWERS WHICH PERTAIN TO IT AS A COURT OF EQUITY.  THIS AT LEAST
INCLUDES THE POWER TO FIX, ON ITS OWN MOTION, THE SCOPE OF THE DECREE
WHICH IT MAY BE REQUIRED TO ENFORCE BY CONTEMPT PROCEEDINGS, IN
CONFORMITY TO RECOGNIZED EQUITABLE STANDARDS APPLIED TO THE RECORD
BEFORE IT.
..END :



HOLMBERG V. ARMBRECHT, 327 U.S. 392 


NO. 505.  ARGUED FEBRUARY 1, 1946.  - DECIDED FEBRUARY 25, 1946.  - 150
F.2D 829, REVERSED. 


1.  DECISION OF A SUIT IN A FEDERAL COURT TO ENFORCE A FEDERALLY
CREATED EQUITABLE RIGHT IS NOT CONTROLLED BY THE STATUTE OF LIMITATIONS
OF THE STATE OF THE FORUM.  GUARANTY TRUST CO. V. YORK, 326 U.S. 99,
DISTINGUISHED.  ACCORDINGLY, A CLASS SUIT BY CREDITORS OF A JOINT STOCK
LAND BANK TO ENFORCE THE LIABILITY IMPOSED UPON SHAREHOLDERS OF THE
BANK BY SEC. 16 OF THE FEDERAL FARM LOAN ACT IS NOT BARRED BY THE STATE
STATUTE OF LIMITATIONS.  P. 394. 

2.  STATUTES OF LIMITATIONS ARE NOT CONTROLLING MEASURES OF EQUITABLE
RELIEF, BUT HAVE BEEN DRAWN UPON BY EQUITY SOLELY FOR THE LIGHT THEY
MAY SHED IN DETERMINING THAT WHICH IS DECISIVE FOR THE CHANCELLOR'S
INTERVENTION, NAMELY, WHETHER THE PLAINTIFF HAS INEXCUSABLY SLEPT ON
HIS RIGHTS SO AS TO MAKE A DECREE AGAINST THE DEFENDANT UNFAIR.  P.
396. 

HOLMBERG ET AL. V. ARMBRECHT ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

FROM A JUDGMENT FOR THE PLAINTIFFS IN A SUIT TO ENFORCE A STATUTORY
LIABILITY OF STOCKHOLDERS OF A FARM LOAN BANK, THE DEFENDANTS
APPEALED.  THE CIRCUIT COURT OF APPEALS REVERSED.  150 F.2D 829.  THIS
COURT GRANTED CERTIORARI.  326 U.S. 712.  REVERSED AND REMANDED, P.
398. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT IN EQUITY BY PETITIONERS ON BEHALF OF THEMSELVES AND
ALL OTHER CREDITORS OF THE SOUTHERN MINNESOTA JOINT STOCK LAND BANK OF
MINNEAPOLIS TO ENFORCE THE LIABILITY IMPOSED UPON SHAREHOLDERS OF THE
BANK BY SEC. 16 OF THE FEDERAL FARM LOAN ACT, EQUAL TO ONE HUNDRED
PERCENT OF THEIR HOLDINGS.  39 STAT. 360, 374, 12 U.S.C. SEC. 812.  FN1
THE BANK CLOSED ITS DOORS IN MAY, 1932.  ITS DEBTS EXCEEDED ITS ASSETS
BY MORE THAN $3,000,000, THE AMOUNT OF ITS OUTSTANDING STOCK.  SUIT WAS
ACCORDINGLY BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MINNESOTA FOR DETERMINING AND COLLECTING THE ASSESSMENT DUE
UNDER SEC. 16.  HOLMBERG V. SOUTHERN MINNESOTA JOINT STOCK LAND BANK,
10 F.SUPP.  795.  ARMBRECHT, A NEW YORK STOCKHOLDER, WAS SUED THERE. 
THE SUIT FAILED ON PROCEDURAL GROUNDS AND WAS DISMISSED WITHOUT
PREJUDICE TO FURTHER ACTION.  HOLMBERG V. ANCHELL, 24 F.SUPP.  594,
598.  NOT UNTIL 1942, SO IT IS ALLEGED, DID PETITIONERS LEARN THAT
JULES S. BACHE HAD CONCEALED HIS OWNERSHIP OF ONE HUNDRED SHARES OF THE
BANK STOCK UNDER THE NAME OF CHARLES ARMBRECHT.  THE PRESENT ACTION
AGAINST ARMBRECHT AND BACHE WAS BEGUN IN THE SOUTHERN DISTRICT OF NEW
YORK IN NOVEMBER, 1943.  BACHE DIED DURING PENDENCY OF THE SUIT AND HIS
EXECUTORS WERE SUBSTITUTED AS PARTIES. 

THE RESPONDENTS MADE TWO DEFENSES:  (1) THEY INVOKED A NEW YORK
STATUTE OF LIMITATION BARRING SUCH AN ACTION AFTER TEN YEARS, NEW YORK
CIVIL PRACTICE ACT, SEC. 53; (2) THEY URGED LACHES, CLAIMING THAT
PETITIONERS HAD UNDULY DELAYED COMMENCEMENT OF THE SUIT.  NEITHER
DEFENSE WAS SUSTAINED IN THE DISTRICT COURT, AND JUDGMENT WENT AGAINST
THE RESPONDENTS.  THE JUDGMENT WAS REVERSED BY THE CIRCUIT COURT OF
APPEALS.  150 F.2D 829.  THAT COURT DID NOT REACH THE DEFENSE OF LACHES
BECAUSE IT HELD, RELYING ON GUARANTY TRUST CO. V. YORK, 326 U.S. 99,
THAT THE NEW YORK STATUTE OF LIMITATION WAS CONTROLLING AND THAT THE
MERE LAPSE OF TEN YEARS BARRED THE ACTION.  SINCE THE CASE RAISES A
QUESTION OF CONSIDERABLE IMPORTANCE IN ENFORCING LIABILITY UNDER
FEDERAL EQUITABLE ENACTMENTS, WE BROUGHT IT HERE FOR REVIEW.  326 U.S.
712. 

IN GUARANTY TRUST CO. V. YORK, SUPRA, WE RULED THAT WHEN A STATE
STATUTE BARS RECOVERY OF A SUIT IN A STATE COURT ON A STATE-CREATED
RIGHT, IT LIKEWISE BARS RECOVERY OF SUCH A SUIT ON THE EQUITY SIDE OF A
FEDERAL COURT BROUGHT THERE MERELY BECAUSE IT WAS "BETWEEN CITIZENS OF
DIFFERENT STATES" UNDER ART. III, SEC. 2 OF THE CONSTITUTION.  THE
AMENABILITY OF SUCH A FEDERAL SUIT TO A STATE STATUTE OF LIMITATION
CANNOT BE REGARDED AS A PROBLEM IN TERMINOLOGY, WHEREBY THE PRACTICAL
EFFECT OF A STATUTE OF LIMITATION WOULD TURN ON THE CONTENT WHICH
ABSTRACT ANALYSIS MAY ATTRIBUTE TO "SUBSTANCE" AND "PROCEDURE."  WE
HELD, ON THE CONTRARY, THAT A STATUTE OF LIMITATION IS A SIGNIFICANT
PART OF THE LEGAL RULES WHICH DETERMINE THE OUTCOME OF A LITIGATION. 
AS SUCH, IT IS AS SIGNIFICANT IN ENFORCING A STATE-CREATED RIGHT BY AN
EXCLUSIVELY EQUITABLE REMEDY AS IT IS IN AN ACTION AT LAW.  BUT IN THE
YORK CASE WE POINTED OUT WITH ALMOST WEARISOME REITERATION, IN REACHING
THIS RESULT, THAT WE WERE THERE CONCERNED SOLELY WITH STATE-CREATED
RIGHTS.  FOR PURPOSES OF DIVERSITY SUITS A FEDERAL COURT IS, IN EFFECT,
"ONLY ANOTHER COURT OF THE STATE."  GUARANTY TRUST CO. V. YORK, SUPRA,
AT 108.  THE CONSIDERATIONS THAT URGE ADJUDICATION BY THE SAME LAW IN
ALL COURTS WITHIN A STATE WHEN ENFORCING A RIGHT CREATED BY THAT STATE
ARE HARDLY RELEVANT FOR DETERMINING THE RULES WHICH BAR ENFORCEMENT OF
AN EQUITABLE RIGHT CREATED NOT BY A STATE LEGISLATURE BUT BY CONGRESS. 

IF CONGRESS EXPLICITLY PUTS A LIMIT UPON THE TIME FOR ENFORCING A
RIGHT WHICH IT CREATED, THERE IS AN END OF THE MATTER.  THE
CONGRESSIONAL STATUTE OF LIMITATION IS DEFINITIVE.  SEE, E.G., HERGET
V. CENTRAL BANK CO., 324 U.S. 4.  THE RUB COMES WHEN CONGRESS IS
SILENT.  APART FROM PENAL ENACTMENTS, CONGRESS HAS USUALLY LEFT THE
LIMITATION OF TIME FOR COMMENCING ACTIONS UNDER NATIONAL LEGISLATION TO
JUDICIAL IMPLICATIONS.  AS TO ACTIONS AT LAW, THE SILENCE OF CONGRESS
HAS BEEN INTERPRETED TO MEAN THAT IT IS FEDERAL POLICY TO ADOPT THE
LOCAL LAW OF LIMITATION.  SEE CAMPBELL V. HAVERHILL, 155 U.S. 610;
CHATTANOOGA FOUNDRY & PIPE WORKS V. ATLANTA, 203 U.S. 390; RAWLINGS V.
RAY, 312 U.S. 96.  THE IMPLIED ABSORPTION OF STATE STATUTES OF
LIMITATION WITHIN THE INTERSTICES OF THE FEDERAL ENACTMENTS IS A PHASE
OF FASHIONING REMEDIAL DETAILS WHERE CONGRESS HAS NOT SPOKEN BUT LEFT
MATTERS FOR JUDICIAL DETERMINATION WITHIN THE GENERAL FRAMEWORK OF
FAMILIAR LEGAL PRINCIPLES.  SEE BOARD OF COMM'RS V. UNITED STATES, 308
U.S. 343, 349-50, 351-52. 

THE PRESENT CASE CONCERNS NOT ONLY A FEDERALLY-CREATED RIGHT BUT A
FEDERAL RIGHT FOR WHICH THE SOLE REMEDY IS IN EQUITY.  WHEELER V.
GREENE, 280 U.S. 49; CHRISTOPHER V. BRUSSELBACK, 302 U.S. 500; RUSSELL
V. TODD, 309 U.S. 280, 285.  AND SO WE HAVE THE REVERSE OF THE
SITUATION IN GUARANTY TRUST CO. V. YORK, SUPRA.  WE DO NOT HAVE THE
DUTY OF A FEDERAL COURT, SITTING AS IT WERE AS A COURT OF A STATE, TO
APPROXIMATE AS CLOSELY AS MAY BE STATE LAW IN ORDER TO VINDICATE
WITHOUT DISCRIMINATION A RIGHT DERIVED SOLELY FROM A STATE.  WE HAVE
THE DUTY OF FEDERAL COURTS, SITTING AS NATIONAL COURTS THROUGHOUT THE
COUNTRY, TO APPLY THEIR OWN PRINCIPLES IN ENFORCING AN EQUITABLE RIGHT
CREATED BY CONGRESS.  WHEN CONGRESS LEAVES TO THE FEDERAL COURTS THE
FORMULATION OF REMEDIAL DETAILS, IT CAN HARDLY EXPECT THEM TO BREAK
WITH HISTORIC PRINCIPLES OF EQUITY IN THE ENFORCEMENT OF FEDERALLY
CREATED EQUITABLE RIGHTS. 

TRADITIONALLY AND FOR GOOD REASONS, STATUTES OF LIMITATION ARE NOT
CONTROLLING MEASURES OF EQUITABLE RELIEF.  SUCH STATUTES HAVE BEEN
DRAWN UPON BY EQUITY SOLELY FOR THE LIGHT THEY MAY SHED IN DETERMINING
THAT WHICH IS DECISIVE FOR THE CHANCELLOR'S INTERVENTION, NAMELY,
WHETHER THE PLAINTIFF HAS INEXCUSABLY SLEPT ON HIS RIGHTS SO AS TO MAKE
A DECREE AGAINST THE DEFENDANT UNFAIR.  SEE RUSSELL V. TODD, SUPRA, AT
289.  "THERE MUST BE CONSCIENCE, GOOD FAITH, AND REASONABLE DILIGENCE,
TO CALL INTO ACTION THE POWERS OF THE COURT."  MCKNIGHT V. TAYLOR, 1
HOW.  161, 168.  A FEDERAL COURT MAY NOT BE BOUND BY A STATE STATUTE OF
LIMITATION AND YET THAT COURT MAY DISMISS A SUIT WHERE THE
PLAINTIFFS'"LACK OF DILIGENCE IS WHOLLY UNEXCUSED; AND BOTH THE NATURE
OF THE CLAIM AND THE SITUATION OF THE PARTIES WAS SUCH AS TO CALL FOR
DILIGENCE  ..."  BENEDICT V. CITY OF NEW YORK, 250 U.S. 321, 328.  A
SUIT IN EQUITY MAY FAIL THOUGH "NOT BARRED BY THE ACT OF LIMITATIONS
..."  MCKNIGHT V. TAYLOR, SUPRA; ALSOP V. RIKER, 155 U.S. 448. 

EQUITY ESCHEWS MECHANICAL RULES; IT DEPENDS ON FLEXIBILITY.  EQUITY
HAS ACTED ON THE PRINCIPLE THAT "LACHES IS NOT LIKE LIMITATION, A MERE
MATTER OF TIME; BUT PRINCIPALLY A QUESTION OF THE INEQUITY OF
PERMITTING THE CLAIM TO BE ENFORCED - AN INEQUITY FOUNDED UPON SOME
CHANGE IN THE CONDITION OR RELATIONS OF THE PROPERTY OR THE PARTIES." 
GALLIHER V. CADWELL, 145 U.S. 368, 373; SEE SOUTHERN PACIFIC CO. V.
BOGERT, 250 U.S. 483, 488-89.  AND SO, A SUIT IN EQUITY MAY LIE THOUGH
A COMPARABLE CAUSE OF ACTION AT LAW WOULD BE BARRED.  IF WANT OF DUE
DILIGENCE BY THE PLAINTIFF MAY MAKE IT UNFAIR TO PURSUE THE DEFENDANT,
FRAUDULENT CONDUCT ON THE PART OF THE DEFENDANT MAY HAVE PREVENTED THE
PLAINTIFF FROM BEING DILIGENT AND MAY MAKE IT UNFAIR TO BAR APPEAL TO
EQUITY BECAUSE OF MERE LAPSE OF TIME. 

EQUITY WILL NOT LEND ITSELF TO SUCH FRAUD AND HISTORICALLY HAS
RELIEVED FROM IT.  IT BARS A DEFENDANT FROM SETTING UP SUCH A
FRAUDULENT DEFENSE, AS IT INTERPOSES AGAINST OTHER FORMS OF FRAUD.  AND
SO THIS COURT LONG AGO ADOPTED AS ITS OWN THE OLD CHANCERY RULE THAT
WHERE A PLAINTIFF HAS BEEN INJURED BY FRAUD AND "REMAINS IN IGNORANCE
OF IT WITHOUT ANY FAULT OR WANT OF DILIGENCE OR CARE ON HIS PART, THE
BAR OF THE STATUTE DOES NOT BEGIN TO RUN UNTIL THE FRAUD IS DISCOVERED,
THOUGH THERE BE NO SPECIAL CIRCUMSTANCES OR EFFORTS ON THE PART OF THE
PARTY COMMITTING THE FRAUD TO CONCEAL IT FROM THE KNOWLEDGE OF THE
OTHER PARTY."  BAILEY V. GLOVER, 21 WALL.  342, 348; AND SEE
EXPLORATION CO. V. UNITED STATES, 247 U.S. 435; SHERWOOD V. SUTTON, 5
MASON 143. 

THIS EQUITABLE DOCTRINE IS READ INTO EVERY FEDERAL STATUTE OF
LIMITATION.  IF THE FEDERAL FARM LOAN ACT HAD AN EXPLICIT STATUTE OF
LIMITATION FOR BRINGING SUIT UNDER SEC. 16, THE TIME WOULD NOT HAVE
BEGUN TO RUN UNTIL AFTER PETITIONERS HAD DISCOVERED, OR HAD FAILED IN
REASONABLE DILIGENCE TO DISCOVER, THE ALLEGED DECEPTION BY BACHE WHICH
IS THE BASIS OF THIS SUIT.  BAILEY V. GLOVER, SUPRA; EXPLORATION CO. V.
UNITED STATES, SUPRA; UNITED STATES V. DIAMOND COAL CO., 255 U.S. 323,
333.  IT WOULD BE TOO INCONGRUOUS TO CONFINE A FEDERAL RIGHT WITHIN THE
BARE TERMS OF A STATE STATUTE OF LIMITATION UNRELIEVED BY THE SETTLED
FEDERAL EQUITABLE DOCTRINE AS TO FRAUD, WHEN EVEN A FEDERAL STATUTE IN
THE SAME TERMS WOULD BE GIVEN THE MITIGATING CONSTRUCTION REQUIRED BY
THAT DOCTRINE. 

WE CONCLUDE THAT THE DECISION IN THE YORK CASE IS INAPPLICABLE TO THE
ENFORCEMENT OF FEDERAL EQUITABLE RIGHTS.  THE FEDERAL DOCTRINE APPLIED
IN BAILEY V. GLOVER, SUPRA, AND IN THE SERIES OF CASES FOLLOWING IT,
GOVERNS.  WHEN THE LIABILITY, IF ANY, ACCRUED IN THIS CASE, CF.
RAWLINGS V. RAY, SUPRA, AT 98, AND WHETHER THE PETITIONERS ARE
CHARGEABLE WITH LACHES, SEE FOSTER V. MANSFIELD, C. & L.M.R. CO., 146
U.S. 88, 99; SOUTHERN PACIFIC CO. V. BOGERT, SUPRA, AT 488, ARE
QUESTIONS AS TO WHICH WE IMPLY NO VIEWS.  WE LEAVE THEM FOR
DETERMINATION BY THE CIRCUIT COURT OF APPEALS TO WHICH THE CASE IS
REMANDED.  REVERSED AND REMANDED. 

FN1  "SHAREHOLDERS OF EVERY JOINT STOCK LAND BANK ORGANIZED UNDER
THIS ACT SHALL BE HELD INDIVIDUALLY RESPONSIBLE, EQUALLY AND RATABLY,
AND NOT ONE FOR ANOTHER, FOR ALL CONTRACTS, DEBTS, AND ENGAGEMENTS OF
SUCH BANK TO THE EXTENT OF THE AMOUNT OF STOCK OWNED BY THEM AT THE PAR
VALUE THEREOF, IN ADDITION TO THE AMOUNT PAID IN AND REPRESENTED BY
THEIR SHARES." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I AGREE WITH THE RESULT AND WITH THE OPINION, RESERVING HOWEVER ANY
INTIMATION, EXPLICIT OR IMPLIED, AS TO THE FULL SCOPE TO WHICH THE
DOCTRINE OF GUARANTY TRUST CO. V. YORK, 326 U.S. 99, MAY BE APPLIED IN
DIVERSITY CASES.  MANY OF THE CONSIDERATIONS NOW STATED BY THE COURT
FOR REFUSING TO EXTEND THAT DOCTRINE TO CASES CONCERNING FEDERALLY
CREATED RIGHTS, RELATING TO THE FLEXIBILITY OF REMEDIES IN EQUITY
EITHER TO CUT DOWN OR TO EXTEND THE STATE STATUTORY PERIOD OF
LIMITATIONS, SEEMED TO ME TO BE APPLICABLE WHENEVER A FEDERAL COURT
MIGHT BE ASKED TO EXTEND THE AID OF ITS EQUITY ARM, WHETHER IN ITS
DIVERSITY JURISDICTION OR OTHER.  THE RULING IN THE YORK CASE HOWEVER
MAY BE ACCEPTED GENERALLY FOR DIVERSITY CASES AND, MOREOVER, REJECTED
FOR EXTENSION TO CASES OF THIS SORT, WITHOUT INDICATING THAT THERE MAY
NOT BE SOME CASES EVEN OF DIVERSITY JURISDICTION TO WHICH FEDERAL
COURTS MAY NOT BE REQUIRED TO APPLY IT.  WITH THIS RESERVATION I JOIN
IN THE COURT'S ACTION. 
..END :














POFF V. PENNSYLVANIA R. CO., 327 U.S. 399 


NO. 484.  ARGUED FEBRUARY 1, 1946.  - DECIDED FEBRUARY 25, 1946.  - 150
F.2D 902, REVERSED. 


THE FEDERAL EMPLOYERS' LIABILITY ACT PROVIDES THAT THE LIABILITY OF
THE CARRIER UNDER THE ACT SHALL EXTEND, IN CASE OF THE DEATH OF THE
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."  HELD, WHERE A DECEDENT LEFT NO
SPOUSE, CHILDREN OR PARENTS, A COUSIN WHO WAS DEPENDENT ON THE DECEDENT
HAD A RIGHT OF RECOVERY, EVEN THOUGH THE DECEDENT WAS SURVIVED ALSO BY
NEARER NEXT OF KIN WHO WERE NOT DEPENDENT AND COULD NOT RECOVER.  P.
401. 

POFF, EXECUTRIX, V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

IN A SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, THE DISTRICT
COURT GAVE JUDGMENT FOR THE PLAINTIFF.  57 F.SUPP.  625.  THE CIRCUIT
COURT OF APPEALS REVERSED.  150 F.2D 902.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 712.  REVERSED, P. 402. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

CONGRESS PROVIDED IN THE FEDERAL EMPLOYERS' LIABILITY ACT (35 STAT.
65, 45 U.S.C. SEC. 51) THAT THE CARRIER'S LIABILITY IN CASE OF THE
DEATH OF AN EMPLOYEE RUNS 

"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  ..." 

THE DECEASED, RESIDING IN PENNSYLVANIA, WAS A RAILROAD ENGINEER
EMPLOYED BY RESPONDENT AND WAS KILLED WHILE ENGAGED IN ITS SERVICE IN
INTERSTATE COMMERCE.  RESPONDENT'S NEGLIGENCE WAS CONCEDED.  THE
DECEASED LEFT NO WIDOW, CHILDREN, OR PARENTS.  HIS NEAREST SURVIVING
RELATIVES WERE TWO SISTERS AND A NEPHEW, NONE OF WHOM WAS IN ANY WAY
FINANCIALLY DEPENDENT ON HIM.  BUT PETITIONER, WHO WAS HIS COUSIN, WAS
A MEMBER OF HIS HOUSEHOLD AND WHOLLY DEPENDENT ON HIM FOR SUPPORT.  THE
DISTRICT COURT RENDERED JUDGMENT FOR PETITIONER.  57 F.SUPP.  625.  THE
CIRCUIT COURT OF APPEALS REVERSED, HOLDING THAT PETITIONER WAS NOT
ENTITLED TO RECOVER SINCE THERE WERE NEARER RELATIVES, THOUGH NOT
DEPENDENT ONES, WHO SURVIVED THE DECEASED.  150 F.2D 902.  THE CASE IS
HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF
THE IMPORTANCE OF THE QUESTION. 

WE ASSUME, WITHOUT DECIDING, THAT THE CIRCUIT COURT OF APPEALS
CORRECTLY CONCLUDED THAT MEMBERS OF THE SECOND OR THIRD CLASS,
IRRESPECTIVE OF THEIR NEED, ARE NOT ENTITLED TO RECOVER IF THERE
SURVIVES A MEMBER OF THE PRIOR CLASS.  CF. NOTTI V. GREAT NORTHERN R.
CO., 110 MONT. 464, 104 P.2D 7.  THE LIABILITY IS NOT "TO THE SEVERAL
CLASSES COLLECTIVELY" BUT IN THE ALTERNATIVE TO ONE OF THE THREE
CLASSES.  CHICAGO, B. & Q.R. CO. V. WELLS-DICKEY TRUST CO., 275 U.S.
161, 163.  THUS TO AN EXTENT, AT LEAST, THE ORDER OF PRIORITY IS
DETERMINED BY RELATIONSHIP, NOT BY DEPENDENCY.  SEE NEW ORLEANS &
N.E.R. CO. V. HARRIS, 247 U.S. 367.  CF. LYTLE V. SOUTHERN R. CO., 152
S.C. 161, 149 S.E. 692.  BUT THE CIRCUIT COURT OF APPEALS WENT FURTHER
AND APPLIED THAT PRINCIPLE TO DETERMINE WHICH MEMBERS OF THE THIRD
CLASS (NEXT OF KIN) WERE ENTITLED TO RECOVER.  IT SAID THAT SINCE
PARENTS OR GRANDCHILDREN, DEPENDENT ON THE DECEASED, ARE LEFT WITHOUT
REMEDY IF A WIDOW OR CHILD SURVIVES, CONGRESS COULD NOT HAVE MEANT TO
RECOGNIZE REMOTE MEMBERS OF THE DECEASED'S OTHER KIN, SIMILARLY
SITUATED.  IT READ "NEXT OF KIN DEPENDENT UPON SUCH EMPLOYEE" TO MEAN
"NEXT OF KIN, IF DEPENDENT UPON SUCH EMPLOYEE."  SINCE THE TWO SISTERS
AND NEPHEW WERE THE "NEXT OF KIN" WHO WOULD TAKE TO THE EXCLUSION OF
PETITIONER UNDER PENNSYLVANIA'S LAW OF DESCENT AND DISTRIBUTION  FN1
IF THE DECEASED DIED INTESTATE, PETITIONER WAS BARRED HERE. 

WE READ THE STATUTE DIFFERENTLY. 

IT IS CLEAR THAT "NEXT OF KIN" IS DETERMINED BY STATE LAW.  SEABOARD
AIR LINE V. KENNEY, 240 U.S. 489.  STATE LAW GOVERNS WHETHER IT IS
NECESSARY TO DETERMINE IF ONE RELATIVE IS CLOSER THAN ANOTHER, OR IF A
CLAIMANT FALLS WITHIN OR WITHOUT THE CLASS.  BUT UNDER THIS ACT, UNLIKE
THE STATE STATUTES OF DESCENT AND DISTRIBUTION, A MEMBER OF THE THIRD
CLASS MUST BE NOT ONLY NEXT OF KIN BUT ALSO DEPENDENT ON THE DECEASED
IN ORDER TO RECOVER.  THE EMPHASIS ON DEPENDENCY SUGGESTS THAT CONGRESS
GRANTED THE RIGHT OF RECOVERY TO SUCH NEXT OF KIN AS WERE DEPENDENT ON
THE DECEASED.  AND THAT INTERPRETATION SEEMS TO US TO BE MORE IN
HARMONY WITH THE ACT THAN THE CONSTRUCTION ADOPTED BY THE CIRCUIT COURT
OF APPEALS. 

WE ARE NOT WARRANTED IN TREATING AS AN ANTECEDENT CLASS THE NEARER
NEXT OF KIN WHO ARE NOT DEPENDENT.  THAT WOULD BE TO REWRITE THE
STATUTE.  CONGRESS HAS CREATED THREE CLASSES, NOT FOUR OR MORE.  YET TO
HOLD THAT THE EXISTENCE OF NEARER NEXT OF KIN WHO ARE NOT DEPENDENT
BARS RECOVERY BY MORE REMOTE NEXT OF KIN WHO ARE DEPENDENT IS TO ASSUME
THAT THE FORMER CONSTITUTE A PREFERRED CLASS.  CONGRESS, HOWEVER,
PLACED ALL NEXT OF KIN IN ONE CLASS.  TO USE DEPENDENCY AS THE
SELECTIVE FACTOR IN DETERMINING WHICH MEMBERS OF A PARTICULAR CLASS MAY
RECOVER IS NO INNOVATION UNDER THIS ACT.  FOR THE COURT HELD IN GULF,
C. & S.F.R. CO. V. MCGINNIS, 228 U.S. 173, THAT IN A SUIT BROUGHT BY A
WIDOW AS ADMINISTRATRIX FOR THE BENEFIT OF HERSELF AND FOUR CHILDREN, A
JUDGMENT IN FAVOR OF AN ADULT CHILD WHO WAS MARRIED AND RESIDED WITH
AND WAS MAINTAINED BY HER HUSBAND WOULD NOT BE SUSTAINED IN ABSENCE OF
A SHOWING OF PECUNIARY LOSS.  MOREOVER, WHEN CONGRESS MADE THE WIDOW
PREFERRED OVER THE PARENTS AND BOTH THE WIDOW AND PARENTS PREFERRED
OVER THE NEXT OF KIN, IT BARRED THE DEFERRED CLASSES FROM RECOVERING BY
CREATING A PREFERRED CLASS WHICH COULD RECOVER.  YET IF RESPONDENT'S
THEORY IS ADOPTED, THE NEARER NEXT OF KIN WHO ARE NOT DEPENDENT ARE
TREATED AS A PREFERRED CLASS NOT FOR THE PURPOSE OF ALLOWING THEM TO
RECOVER BUT TO DEFEAT A RECOVERY BY ALL NEXT OF KIN.  FN2  IT MAY BE
TRUE, AS WAS THE CASE IN CHICAGO, B. & Q.R. CO. V. WELLS-DICKEY TRUST
CO., SUPRA, THAT THE CAUSE OF ACTION MAY BE LOST TO THE PREFERRED CLASS
AND TO THE DEFERRED CLASS AS WELL.  BUT THAT RESULT, THOUGH POSSIBLE,
FLOWS NOT FROM THE NATURE OF THE PREFERENCE BUT FROM SUCH CIRCUMSTANCES
AS THE FAILURE PROMPTLY TO PURSUE THE CLAIM.  YET IT WOULD BE A RADICAL
DEPARTURE FROM THE STATUTORY SCHEME TO DO WITHIN THE THIRD CLASS WHAT
CONGRESS HAS NOT DONE BETWEEN THE CLASSES AND DEFEAT ALL RECOVERY BY
HOLDING THAT THE CAUSE OF ACTION VESTED IN ONE WHO COULD NOT UNDER ANY
CIRCUMSTANCES SUE.  UNDER THIS ACT DEFERMENT OF A CLASS IS BASED ON THE
EXISTENCE OF MEMBERS OF A PREFERRED CLASS TO WHOM CONGRESS HAS GRANTED
THE RIGHT OF RECOVERY.  WE FIND NO COMPULSION IN THE POLICY OR LANGUAGE
OF THE ACT TO ADOPT A MORE STRINGENT INTERPRETATION WHEN WE COME TO
DETERMINING WHAT MEMBERS OF THE THIRD CLASS MAY SUE.  REVERSED. 

FN1  SEE 20 PURDON'S PA. STATS. ANN. SECS. 62, 63, 66, 67. 

FN2  IT IS CLEAR THAT THE TWO SISTERS AND THE NEPHEW, THE NEAREST
SURVIVING RELATIVES, COULD NOT RECOVER.  LINDGREN V. UNITED STATES, 281
U.S. 38. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER DISSENTING, WITH WHOM MR. JUSTICE BURTON
CONCURS. 

CONGRESS MIGHT WELL HAVE ALLOWED RECOVERY AS A MATTER OF COURSE TO ANY
NEAR RELATIVE OF A RAILROAD EMPLOYEE WHOSE DEATH WAS DUE TO A CARRIER'S
NEGLIGENCE.  CONGRESS CHOSE NOT TO DO SO. CONGRESS MERELY GAVE A RIGHT
OF ACTION "TO CERTAIN RELATIVES DEPENDENT UPON AN EMPLOYE WRONGFULLY
INJURED, FOR THE LOSS AND DAMAGE RESULTING TO THEM FINANCIALLY BY
REASON OF THE WRONGFUL DEATH."  MICHIGAN CENTRAL R. CO. V. VREELAND,
227 U.S. 59, 68; AND SEE GULF, C. & S.F.R. CO. V. MCGINNIS, 228 U.S.
173, 175; GARRETT V. LOUISVILLE & NASHVILLE R. CO., 235 U.S. 308, 313. 
CONGRESS MIGHT HAVE EXTENDED THE BENEFITS OF ITS LEGISLATION TO ANY
DEPENDENT RELATIVE BY USING A COLLOQUIAL DESCRIPTION SUCH AS "THE
NEAREST DEPENDENT SURVIVING RELATIVE."  IT CHOSE NOT TO DO THAT.  ON
THE CONTRARY, IT USED THE PHRASE "NEXT OF KIN," A TERM OF PRECISE
MEANING IN THE LAW.  IN SUM, CONGRESS CAREFULLY LIMITED THE RELATIVES
ELIGIBLE FOR COMPENSATION FOR AN EMPLOYEE'S DEATH AND STRICTLY
DESIGNATED THE BASIS OF ELIGIBILITY.  FN1 

WHAT CONGRESS DID WAS THUS ANALYZED BY THE COURT BELOW: 

"CONGRESS, WHICH WAS WILLING TO LEAVE UNREMEDIED LOSS SUFFERED BY
PARENTS, OR GRANDCHILDREN, WHO MIGHT BE TOTALLY DEPENDENT UPON THE
DECEASED, COULD NOT HAVE MEANT TO RECOGNIZE REMOTE MEMBERS OF THE
DECEASED'S OTHER KIN, SIMILARLY SITUATED.  THE PLAINTIFF'S
INTERPRETATION DOES NOT FULFILL ANY RATIONAL PURPOSE; IT MERELY
INTRODUCES AN EXCEPTION AT THE PRECISE PLACE WHERE AN EXCEPTION IS
LEAST TO BE DESIRED OR EXPECTED; IT MUTILATES THE STATUTE, AS MUCH IN
ITS PURPOSE AS IN ITS LANGUAGE.  AS IN THE CASE OF THE FIRST TWO
PREFERRED CLASSES, 'NEXT OF KIN' IS DEFINED BY ITS HEREDITARY, NOT BY
ITS PECUNIARY, RELATION TO THE DECEASED; IT MEANS THE NEXT OF KIN AS
THE LAW HAS ALWAYS MEANT IT; AND DEPENDENCY IS ONLY A SELECTIVE FACTOR,
A CONDITION UPON RECOVERY BY ANY MEMBERS OF THAT CLASS, AS IT IS AMONG
MEMBERS OF THE FIRST TWO CLASSES.  THE CASE IS NOT THEREFORE ONE IN
WHICH CONGRESS HAS FAILED TO EXPRESS ITS OBVIOUS PURPOSE, AND IN WHICH
COURTS ARE FREE TO SUPPLY THE NECESSARY OMISSION; IT IS A CASE WHERE -
WHATEVER THAT PURPOSE - IT CERTAINLY DID NOT INCLUDE WHAT THE PLAINTIFF
ASSERTS."  POFF V. PENNSYLVANIA R. CO., 150 F.2D 902, 905. 

I DO NOT FIND A PERSUASIVE ANSWER TO THIS ANALYSIS AND AM THEREFORE
OF OPINION THAT THE JUDGMENT BELOW SHOULD BE AFFIRMED. 

FN1  "THAT EVERY COMMON CARRIER BY RAILROAD  ...  (IN INTERSTATE AND
FOREIGN COMMERCE) 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  ..."  35 STAT. 65, 53 STAT. 1404,
45 U.S.C. SEC. 51. 
..END :



COMMISSIONER V. WILCOX, 327 U.S. 404 


NO. 163.  ARGUED JANUARY 8, 1946.  - DECIDED FEBRUARY 25, 1946.  - 148
F.2D 933, AFFIRMED. 


1.  EMBEZZLED MONEY DOES NOT CONSTITUTE TAXABLE INCOME TO THE
EMBEZZLER UNDER SEC. 22(A) OF THE INTERNAL REVENUE CODE, WHICH DEFINES
"GROSS INCOME" AS INCLUDING "GAINS OR PROFITS AND INCOME DERIVED FROM
ANY SOURCE WHATEVER."  P. 408. 

2.  A TAXABLE GAIN IS CONDITIONED UPON (1) THE PRESENCE OF A CLAIM OF
RIGHT TO THE ALLEGED GAIN AND (2) THE ABSENCE OF A DEFINITE,
UNCONDITIONAL OBLIGATION TO REPAY OR RETURN THAT WHICH WOULD OTHERWISE
CONSTITUTE A GAIN.  P. 408. 

3.  WHERE AN EMBEZZLER RECEIVES THE EMBEZZLED MONEY WITHOUT ANY
SEMBLANCE OF A BONA FIDE CLAIM OF RIGHT AND REMAINS UNDER AN
UNQUALIFIED DUTY AND OBLIGATION TO REPAY, THE EMBEZZLED MONEY DOES NOT
CONSTITUTE TAXABLE INCOME.  P. 408. 

4.  THIS CONCLUSION IS NOT ALTERED BY THE FACT THAT THE TAXPAYER
DISSIPATED ALL OF THE EMBEZZLED FUNDS, SINCE THE LOSS OR DISSIPATION OF
EMBEZZLED MONEY CAN NOT CREATE TAXABLE INCOME TO AN EMBEZZLER ANY MORE
THAN THE INSOLVENCY OR BANKRUPTCY OF A BORROWER CAUSES THE LOANS TO BE
TREATED AS TAXABLE INCOME TO THE BORROWER.  P. 409. 

5.  THE FACT THAT A THEFT OR LOAN MAY GIVE RISE TO A DEDUCTIBLE LOSS
TO THE OWNER OF THE MONEY DOES NOT CREATE TAXABLE INCOME TO THE
EMBEZZLER OR THE BORROWER.  P. 409. 

6.  THE TAX COURT'S DETERMINATION THAT THE EMBEZZLED MONEY
CONSTITUTED TAXABLE INCOME TO THE EMBEZZLER INVOLVED A CLEAR-CUT
MISTAKE OF LAW, AND THE CIRCUIT COURT OF APPEALS WAS JUSTIFIED IN
REVERSING THE TAX COURT'S DECISION.  P. 410. 

COMMISSIONER OF INTERNAL REVENUE V. WILCOX ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

THE COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT RESPONDENT WAS
REQUIRED TO REPORT AS INCOME CERTAIN MONEY WHICH HE HAD EMBEZZLED AND
ASSESSED AN INCOME TAX DEFICIENCY AGAINST HIM.  THE TAX COURT SUSTAINED
THE COMMISSIONER.  THE CIRCUIT COURT OF APPEALS REVERSED.  148 F.2D
933.  THIS COURT GRANTED CERTIORARI.  326 U.S. 701.  AFFIRMED, P. 410. 

OPINION OF THE COURT BY MR. JUSTICE MURPHY, ANNOUNCED BY MR. JUSTICE
RUTLEDGE. 

THE SOLE ISSUE HERE IS WHETHER EMBEZZLED MONEY CONSTITUTES TAXABLE
INCOME TO THE EMBEZZLER UNDER SEC. 22(A) OF THE INTERNAL REVENUE CODE. 
FN1 

THE FACTS ARE STIPULATED.  THE TAXPAYER WAS EMPLOYED AS A BOOKKEEPER
BY A TRANSFER AND WAREHOUSE COMPANY IN RENO, NEVADA, FROM 1937 TO
1942.  HE WAS PAID HIS SALARY PROMPTLY EACH MONTH WHEN DUE, IT NOT
BEING THE CUSTOM TO ALLOW HIM TO DRAW HIS SALARY IN ADVANCE.  IN JUNE
1942, THE COMPANY'S BOOKS WERE AUDITED AND IT WAS DISCOVERED FOR THE
FIRST TIME THAT THE TAXPAYER HAD CONVERTED $12,748.60 TO HIS OWN USE
DURING 1941.  FN2  THIS AMOUNT WAS COMPOSED OF MISCELLANEOUS SUMS OF
MONEY BELONGING TO THE COMPANY WHICH HE HAD RECEIVED AND COLLECTED AT
VARIOUS TIMES IN HIS CAPACITY AS BOOKKEEPER.  HE FAILED TO DEPOSIT THIS
MONEY TO THE CREDIT OF THE COMPANY.  INSTEAD HE POCKETED AND WITHDREW
PAYMENTS IN CASH MADE TO HIM BY CUSTOMERS, NEGLECTING TO CREDIT THE
CUSTOMERS' ACCOUNTS OR THE COMPANY'S ACCOUNTS RECEIVABLE WITH THE FUNDS
RECEIVED. 

THE TAXPAYER LOST PRACTICALLY ALL OF THIS MONEY IN VARIOUS GAMBLING
HOUSES IN RENO.  THE COMPANY NEVER CONDONED OR FORGAVE THE TAKING OF
THE MONEY AND STILL HOLDS HIM LIABLE TO RESTORE IT.  THE TAXPAYER WAS
CONVICTED IN A NEVADA STATE COURT IN 1942 OF THE CRIME OF
EMBEZZLEMENT.  HE WAS SENTENCED TO SERVE FROM 2 TO 14 YEARS IN PRISON
AND WAS PAROLED IN DECEMBER, 1943. 

THE COMMISSIONER DETERMINED THAT THE TAXPAYER WAS REQUIRED TO REPORT
THE $12,748.60 EMBEZZLED IN 1941 AS INCOME RECEIVED IN THAT YEAR AND
ASSERTED A TAX DEFICIENCY OF $2,978.09.  THE TAX COURT SUSTAINED THE
COMMISSIONER BUT THE COURT BELOW REVERSED.  148 F.2D 933.  WE GRANTED
CERTIORARI BECAUSE OF A CONFLICT AMONG CIRCUITS AS TO THE TAXABILITY OF
EMBEZZLED MONEY.  FN3 

INCLUDE "GAINS, PROFITS, AND INCOME DERIVED FROM  ...  DEALINGS IN
PROPERTY  ...  GROWING OUT OF THE OWNERSHIP OR USE OF OR INTEREST IN
SUCH PROPERTY; ALSO FROM  ...  THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER."  THE QUESTION THUS IS WHETHER THE WRONGFUL
ACQUISITION OF FUNDS BY AN EMBEZZLER SHOULD BE INCLUDED IN THE
STATUTORY PHRASE "GAINS OR PROFITS AND INCOME DERIVED FROM ANY SOURCE
WHATEVER," THEREBY CONSTITUTING TAXABLE INCOME TO THE EMBEZZLER. 

THE COMMISSIONER RELIES UPON THE ESTABLISHED PRINCIPLE THAT ORTHODOX
CONCEPTS OF OWNERSHIP FAIL TO REFLECT THE OUTER BOUNDARIES OF
TAXATION.  AS THIS COURT HAS STATED, TAX LIABILITY "MAY REST UPON THE
ENJOYMENT BY THE TAXPAYER OF PRIVILEGES AND BENEFITS SO SUBSTANTIAL AND
IMPORTANT AS TO MAKE IT REASONABLE AND JUST TO DEAL WITH HIM AS IF HE
WERE THE OWNER, AND TO TAX HIM ON THAT BASIS."  BURNET V. WELLS, 289
U.S. 670, 678.  SEE HELVERING V. CLIFFORD, 309 U.S. 331; HELVERING V.
HORST, 311 U.S. 112.  APPLYING THAT RULE TO THIS CASE, THE COMMISSIONER
URGES THAT THE ACT OF APPROPRIATING THE PROPERTY OF ANOTHER TO ONE'S
OWN USE IS AN EXERCISE OF A MAJOR POWER OF OWNERSHIP EVEN THOUGH THE
ACT IS CONSCIOUSLY AND ENTIRELY WRONGFUL.  AS AGAINST ALL THE WORLD
EXCEPT THE TRUE OWNER THE EMBEZZLER IS THE LEGAL OWNER, AT LEAST WHILE
HE REMAINS IN POSSESSION.  THE MONEY OR PROPERTY ACQUIRED IN THIS
UNLAWFUL MANNER, IT IS SAID, SHOULD THEREFORE BE TREATED AS TAXABLE
INCOME TO THE WRONGDOER UNDER SEC. 22(A).  WE CANNOT AGREE. 

PURPOSE OF CONGRESS TO USE THE FULL MEASURE OF ITS TAXING POWER WITHIN
THOSE DEFINABLE CATEGORIES."  HELVERING V. CLIFFORD, SUPRA, 334.  THE
VERY ESSENCE OF TAXABLE INCOME, AS THAT CONCEPT IS USED IN SEC. 22(A),
IS THE ACCRUAL OF SOME GAIN, PROFIT OR BENEFIT TO THE TAXPAYER.  THIS
REQUIREMENT OF GAIN, OF COURSE, MUST BE READ IN ITS STATUTORY CONTEXT. 
NOT EVERY BENEFIT RECEIVED BY A TAXPAYER FROM HIS LABOR OR INVESTMENT
NECESSARILY RENDERS HIM TAXABLE.  NOR IS MERE DOMINION OVER MONEY OR
PROPERTY DECISIVE IN ALL CASES.  IN FACT, NO SINGLE, CONCLUSIVE
CRITERION HAS YET BEEN FOUND TO DETERMINE IN ALL SITUATIONS WHAT IS A
SUFFICIENT GAIN TO SUPPORT THE IMPOSITION OF AN INCOME TAX.  NO MORE
CAN BE SAID IN GENERAL THAN THAT ALL RELEVANT FACTS AND CIRCUMSTANCES
MUST BE CONSIDERED.  SEE MAGILL, TAXABLE INCOME (1945). 

FOR PRESENT PURPOSES, HOWEVER, IT IS ENOUGH TO NOTE THAT A TAXABLE
GAIN IS CONDITIONED UPON (1) THE PRESENCE OF A CLAIM OF RIGHT TO THE
ALLEGED GAIN AND (2) THE ABSENCE OF A DEFINITE, UNCONDITIONAL
OBLIGATION TO REPAY OR RETURN THAT WHICH WOULD OTHERWISE CONSTITUTE A
GAIN.  WITHOUT SOME BONA FIDE LEGAL OR EQUITABLE CLAIM, EVEN THOUGH IT
BE CONTINGENT OR CONTESTED IN NATURE, THE TAXPAYER CANNOT BE SAID TO
HAVE RECEIVED ANY GAIN OR PROFIT WITHIN THE REACH OF SEC. 22(A).  SEE
NORTH AMERICAN OIL V. BURNET, 286 U.S. 417, 424.  NOR CAN TAXABLE
INCOME ACCRUE FROM THE MERE RECEIPT OF PROPERTY OR MONEY WHICH ONE IS
OBLIGED TO RETURN OR REPAY TO THE RIGHTFUL OWNER, AS IN THE CASE OF A
LOAN OR CREDIT.  TAXABLE INCOME MAY ARISE, TO BE SURE, FROM THE USE OR
IN CONNECTION WITH THE USE OF SUCH PROPERTY.  THUS IF THE TAXPAYER USES
THE PROPERTY HIMSELF SO AS TO SECURE A GAIN OR PROFIT THEREFROM, HE MAY
BE TAXABLE TO THAT EXTENT.  AND IF THE UNCONDITIONAL INDEBTEDNESS IS
CANCELLED OR RETIRED, TAXABLE INCOME MAY ADHERE, UNDER CERTAIN
CIRCUMSTANCES, TO THE TAXPAYER.  BUT APART FROM SUCH FACTORS THE BARE
RECEIPT OF PROPERTY OR MONEY WHOLLY BELONGING TO ANOTHER LACKS THE
ESSENTIAL CHARACTERISTICS OF A GAIN OR PROFIT WITHIN THE MEANING OF
SEC. 22(A). 

WE FAIL TO PERCEIVE ANY REASON FOR APPLYING DIFFERENT PRINCIPLES TO A
SITUATION WHERE ONE EMBEZZLES OR STEALS MONEY FROM ANOTHER.  MORAL
TURPITUDE IS NOT A TOUCHSTONE OF TAXABILITY.  THE QUESTION, RATHER, IS
WHETHER THE TAXPAYER IN FACT RECEIVED A STATUTORY GAIN, PROFIT OR
BENEFIT.  THAT THE TAXPAYER'S MOTIVE MAY HAVE BEEN REPREHENSIBLE OR THE
MODE OF RECEIPT ILLEGAL HAS NO BEARING UPON THE APPLICATION OF SEC.
22(A). 

IT IS OBVIOUS THAT THE TAXPAYER IN THIS INSTANCE, IN EMBEZZLING THE
$12,748.60, RECEIVED THE MONEY WITHOUT ANY SEMBLANCE OF A BONA FIDE
CLAIM OF RIGHT.  AND HE WAS AT ALL TIMES UNDER AN UNQUALIFIED DUTY AND
OBLIGATION TO REPAY THE MONEY TO HIS EMPLOYER.  UNDER NEVADA LAW THE
CRIME OF EMBEZZLEMENT WAS COMPLETE WHENEVER AN APPROPRIATION WAS MADE;
FN4  THE EMPLOYER WAS ENTITLED TO REPLEVY THE MONEY AS SOON AS IT WAS
APPROPRIATED  FN5  OR TO HAVE IT SUMMARILY RESTORED BY A MAGISTRATE. 
FN6  THE EMPLOYER, MOREOVER, AT ALL TIMES HELD THE TAXPAYER LIABLE TO
RETURN THE FULL AMOUNT.  THE DEBTOR-CREDITOR RELATIONSHIP WAS DEFINITE
AND UNCONDITIONAL.  ALL RIGHT, TITLE AND INTEREST IN THE MONEY RESTED
WITH THE EMPLOYER.  THE TAXPAYER THUS RECEIVED NO TAXABLE INCOME FROM
THE EMBEZZLEMENT. 

THIS CONCLUSION IS UNALTERED BY THE FACT THAT THE TAXPAYER
SUBSEQUENTLY DISSIPATED ALL OF THE EMBEZZLED FUNDS IN GAMBLING HOUSES. 
THE LOSS OR DISSIPATION OF MONEY CANNOT CREATE TAXABLE INCOME HERE ANY
MORE THAN THE INSOLVENCY OR BANKRUPTCY OF AN ORDINARY BORROWER CAUSES
THE LOANS TO BE TREATED AS TAXABLE INCOME TO THE BORROWER.  SEE
MCKNIGHT V. COMMISSIONER, 127 F.2D 572, 573-574.  IN EACH INSTANCE THE
TAXABILITY IS DETERMINED FROM THE CIRCUMSTANCES SURROUNDING THE RECEIPT
AND HOLDING OF THE MONEY RATHER THAN BY THE DISASTROUS USE TO WHICH IT
IS PUT.  LIKEWISE, THE FACT THAT A THEFT OR LOAN MAY GIVE RISE TO A
DEDUCTIBLE LOSS TO THE OWNER OF THE MONEY DOES NOT CREATE INCOME TO THE
EMBEZZLER OR THE BORROWER.  SUCH DEDUCTIONS, LACKING ANY NECESSARILY
CORRESPONDING RELATIONSHIP TO GAINS AND BEING A MATTER OF LEGISLATIVE
GRACE, FAIL TO DEMONSTRATE THE EXISTENCE OF TAXABLE INCOME. 

HAD THE TAXPAYER USED THE EMBEZZLED MONEY AND OBTAINED PROFITS
THEREFROM SUCH PROFITS MIGHT HAVE BEEN TAXABLE REGARDLESS OF THE
ILLEGALITY INVOLVED.  FN7  OR HAD HIS EMPLOYER CONDONED OR FORGIVEN ANY
PART OF THE UNLAWFUL APPROPRIATION, THE TAXPAYER MIGHT HAVE BEEN
SUBJECT TO TAX LIABILITY TO THAT EXTENT.  BUT NEITHER SITUATION IS
PRESENT IN THIS PROCEEDING AND WE NEED NOT EXPLORE SUCH POSSIBILITIES. 
SANCTIONING A TAX UNDER THE CIRCUMSTANCES BEFORE US WOULD SERVE ONLY TO
GIVE THE UNITED STATES AN UNJUSTIFIED PREFERENCE AS TO PART OF THE
MONEY WHICH RIGHTFULLY AND COMPLETELY BELONGS TO THE TAXPAYER'S
EMPLOYER. 

THE TAX COURT'S DETERMINATION THAT THE EMBEZZLED MONEY CONSTITUTED
TAXABLE INCOME TO THE EMBEZZLER, A RESULT IN ACCORD WITH ITS PRIOR
DECISIONS ON THE ISSUE,  FN8  INVOLVED A CLEAR-CUT MISTAKE OF LAW.  THE
COURT BELOW WAS THEREFORE JUSTIFIED IN REVERSING THAT JUDGMENT.  CF.
COMMISSIONER V. SCOTTISH AMERICAN CO., 323 U.S. 119; DOBSON V.
COMMISSIONER, 320 U.S. 489; TRUST OF BINGHAM V. COMMISSIONER, 325 U.S.
365.  AFFIRMED. 

FN1  26 U.S.C. SEC. 22(A). 

FN2  THE SUM OF $10,147.41 WAS EMBEZZLED DURING 1942 BUT THAT AMOUNT
IS NOT IN ISSUE IN THIS CASE. 

FN3  THE DECISION BELOW IS IN ACCORD WITH MCKNIGHT V. COMMISSIONER,
127 F.2D 572(C.C.A. 5), BUT IS IN CONFLICT WITH KURRLE V. HELVERING,
126 F.2D 723(C.C.A.8).  SEE ALSO BOSTON CONSOLIDATED GAS CO. V.
COMMISSIONER, 128 F.2D 473, 476-477(C.C.A.1, CONCURRING OPINION). 

FN4  STATE V. TROLSON, 21 NEV. 419, 32 P. 930. 

FN5  NEVADA COMPILED LAWS (1929) SEC. 8681; PERKINS V. BARNES, 3 NEV.
557; STUDEBAKER CO. V. WITCHER, 44 NEV. 468, 199 P. 477. 

FN6  NEVADA COMPILED LAWS (1929) SECS. 11243-11246. 

FN7  SEE JOHNSON V. UNITED STATES, 318 U.S. 189; UNITED STATES V.
SULLIVAN, 274 U.S. 259; CALDWELL V. COMMISSIONER, 135 F.2D 488; CHADICK
V. UNITED STATES, 77 F.2D 961; NATIONAL CITY BANK V. HELVERING, 98 F.2D
93.  SEE ALSO MANN V. NASH, (1932) 1 K.B. 752; SOUTHERN V. A.B., (1933)
1 K.B. 713. 

FN8  SEE ESTATE OF SPRUANCE V. COMMISSIONER, 43 B.T.A. 221, REVERSED
SUB NOM. MCKNIGHT V. COMMISSIONER, 127 F.2D 572; KURRLE V.
COMMISSIONER, PRENTICE-HALL 1941 B.T.A. MEMORANDUM DECISIONS, PAR.
41,085, AFFIRMED 126 F.2D 723.  THE ADMINISTRATIVE INTERPRETATION IS TO
THE SAME EFFECT AS THE TAX COURT'S DECISIONS.  G.C.M. 16572, XV-1 CUM.
BULL.  82(1936). 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BURTON, DISSENTING. 

BY HOLDING IN THIS CASE THAT EMBEZZLED FUNDS DO NOT CONSTITUTE A
TAXABLE GAIN TO THE EMBEZZLER UNDER THE INTERNAL REVENUE CODE, I
BELIEVE THE COURT MISINTERPRETS THE CODE.  THAT INTERPRETATION IS
CONTRARY TO THE ESTABLISHED ADMINISTRATIVE CONSTRUCTION OF THE CODE AND
TO WHAT APPEARS TO BE THE INTENT OF SEC. 22(A) AS DISCLOSED BY ITS
LEGISLATIVE HISTORY.  SECTION 22(A) EXPRESSLY INCLUDES IN THE NET
INCOME OF A TAXABLE PERSON "GAINS OR PROFITS AND INCOME DERIVED FROM
ANY SOURCE WHATEVER."  26 U.S.C., SEC. 22(A).  IT IS DIFFICULT TO
IMAGINE A BROADER DEFINITION.  THIS COURT HAS SAID OF THIS SECTION,
"THE BROAD SWEEP OF THIS LANGUAGE INDICATES THE PURPOSE OF CONGRESS TO
USE THE FULL MEASURE OF ITS TAXING POWER WITHIN THOSE DEFINABLE
CATEGORIES."  HELVERING V. CLIFFORD, 309 U.S. 331, 334. 

THE LEGISLATIVE HISTORY OF THE SECTION DEMONSTRATES THE CONGRESSIONAL
INTENT TO TAX NOT MERELY "LAWFUL" GAINS BUT ALL GAINS LAWFUL OR
UNLAWFUL.  SECTION II B OF THE INCOME TAX ACT OF 1913, 38 STAT. 167,
PROVIDED ORIGINALLY THAT - 

"...  THE NET INCOME OF A TAXABLE PERSON SHALL INCLUDE GAINS,
PROFITS, AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR
PERSONAL SERVICE OF WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, BUSINESSES, TRADE, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN REAL OR PERSONAL PROPERTY, ALSO FROM
INTEREST, RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY LAWFUL
BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME
DERIVED FROM ANY SOURCE WHATEVER,  ..." 

THE REVENUE ACT OF 1916(39 STAT. 757), SEC. 2(A), REENACTED THIS
PROVISION OMITTING ONLY THE WORD "LAWFUL" BEFORE THE WORD "BUSINESS" SO
THAT NOW THE FINAL CLAUSE, AS INCORPORATED IN SEC. 22(A), READS, "ALSO
FROM INTEREST, RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY
BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME
DERIVED FROM ANY SOURCE WHATEVER  ..."  THE 1916 AMENDMENT DEMONSTRATED
AN INTENT TO INCLUDE GAINS, PROFITS AND INCOME FROM ANY UNLAWFUL
BUSINESS AS WELL AS FROM ANY LAWFUL BUSINESS.  IT IS INESCAPABLE
EVIDENCE OF A LIKE INTENT TO INCLUDE UNLAWFUL AS WELL AS LAWFUL "GAINS
...  FROM ANY SOURCE WHATEVER  ..."  SEE UNITED STATES V. SULLIVAN, 274
U.S. 259. 

THERE HAVE BEEN MANY DECISIONS TO THE EFFECT THAT THIS SECTION
INCLUDES SUCH UNLAWFUL GAINS AS THOSE FROM ILLICIT TRAFFIC IN LIQUOR,
FN1  RACE-TRACK BOOKMAKING,  FN2  CARD PLAYING,  FN3 UNLAWFUL INSURANCE
POLICIES,  FN4  ILLEGAL PRIZE FIGHTING PICTURES,  FN5  LOTTERIES,  FN6
GRAFT, FN7  FRAUDULENTLY MISAPPLIED MONEYS OF A CLIENT BY AN ATTORNEY,
FN8  "PROTECTION PAYMENTS" TO RACKETEERS AND RANSOM MONEY PAID TO A
KIDNAPPER.  FN9    THE MAJORITY OPINION IN THE PRESENT CASE RECOGNIZES
THAT HAD "THE TAXPAYER USED THE EMBEZZLED MONEY AND OBTAINED PROFITS
THEREFROM SUCH PROFITS MIGHT HAVE BEEN TAXABLE REGARDLESS OF THE
ILLEGALITY INVOLVED."  THE MAJORITY OPINION THEREFORE DOES NOT EXEMPT
THE EMBEZZLED FUNDS FROM TAXATION MERELY BECAUSE THERE IS "ILLEGALITY
INVOLVED."  THE OPINION REACHES ITS RESULT BY READING INTO SEC. 22(A) A
LEGISLATIVE DISTINCTION I DO NOT FIND THERE.  THE OPINION LIMITS THE
CLAIM OF RIGHT" BY THE TAXPAYER AND AS ARE NOT ACCOMPANIED WITH "A
DEFINITE, UNCONDITIONAL OBLIGATION TO REPAY OR RETURN THAT WHICH WOULD
OTHERWISE CONSTITUTE A GAIN."  BELIEVING, AS I DO, THAT CONGRESS IN
THIS SECTION HAS SOUGHT "TO USE THE FULL MEASURE OF ITS TAXING POWER,"
AND IN DOING SO HAS SOUGHT TO TAX ALL "GAINS  ...  FROM ANY SOURCE
WHATEVER," I AM UNABLE TO RECOGNIZE AN ADEQUATE BASIS FOR READING INTO
THE BROAD SWEEP OF THE LANGUAGE THE UNEXPRESSED LIMITATION PROPOSED IN
THE MAJORITY OPINION. 

THE EMBEZZLER'S COMPLETE POSSESSION OF THE EMBEZZLED FUNDS, HIS
EXERCISE OF DOMINION OVER THEM TO THE EXTENT OF DISPOSING OF EVERY CENT
OF THEM AND HIS TRANSFER OF POSSESSION OF THEM TO OTHERS IN SUCH A
MANNER AS TO GIVE THE RECIPIENTS TITLE TO THEM, AMOUNTS TO SUCH AN
AMPLE ENJOYMENT OF THEM, USE OF THEM, DOMINION OVER THEM, DISPOSITION
OF THEM AND RECEIPT OF BENEFITS FROM THEM AS TO MAKE THEM OF OBVIOUS
ECONOMIC VALUE TO THE EMBEZZLER.  SUCH A READILY REALIZABLE VALUE
PRESENTS NO REASONABLE BASIS FOR EXEMPTING THESE FUNDS FROM TAXATION
THAT WOULD BE APPLIED TO THEM IF EARNED IN A LAWFUL MANNER.  THE
"GOVERNMENT  ...  MAY TAX NOT ONLY OWNERSHIP, BUT ANY RIGHT OR
PRIVILEGE THAT IS A CONSTITUTENT OF OWNERSHIP  ....  LIABILITY MAY REST
UPON THE ENJOYMENT BY THE TAXPAYER OF PRIVILEGES AND BENEFITS SO
SUBSTANTIAL AND IMPORTANT AS TO MAKE IT REASONABLE AND JUST TO DEAL
WITH HIM AS IF HE WERE THE OWNER, AND TO TAX HIM ON THAT BASIS." 
BURNET V. WELLS, 289 U.S. 670, 678. 

IN NATIONAL CITY BANK V. HELVERING, 98 F.2D 93, 96, L. HAND, J.,
WRITING FOR THE COURT, SAID: 

"ALTHOUGH TAXES ARE PUBLIC DUTIES ATTACHED TO THE OWNERSHIP OF
PROPERTY, THE STATE SHOULD BE ABLE TO EXACT THEIR PERFORMANCE WITHOUT
BEING COMPELLED TO TAKE SIDES IN PRIVATE CONTROVERSIES.  POSSESSION IS
IN GENERAL PRIMA FACIE EVIDENCE OF OWNERSHIP, AND IS PERHAPS INDEED THE
SOURCE OF THE CONCEPT ITSELF, THOUGH THE TIME IS LONG PAST WHEN IT WAS
SYNONYMOUS WITH IT.  IT WOULD BE INTOLERABLE THAT THE TAX MUST BE
ASSESSED AGAINST BOTH THE PUTATIVE TORTFEASOR AND THE CLAIMANT;
COLLECTION OF THE REVENUE CANNOT BE DELAYED, NOR SHOULD THE TREASURY BE
COMPELLED TO DECIDE WHEN A POSSESSOR'S CLAIMS ARE WITHOUT LEGAL
WARRANT." 

IN THE PRESENT CASE, THE EMBEZZLER CONCEALED THE EMBEZZLEMENT LONG
ENOUGH TO ENABLE HIM TO GAMBLE AWAY ALL OF THE EMBEZZLED FUNDS.  HE
ASSERTED, FALSELY TO BE SURE, BUT NONETHELESS POSITIVELY, HIS RIGHT TO
DISPOSE OF THE FUNDS AND HE DID DISPOSE OF THEM BEYOND ALL CHANCE OF
THEIR RECOVERY.  THIS WAS A USE OF THEM BY HIM FOR HIS OWN ENJOYMENT
JUST AS FULLY AS THOUGH HE HAD LEGAL TITLE TO THEM.  IF HE HAD MADE
GAMBLING OR OTHER PROFITS FROM THEM, HE WOULD HAVE CLAIMED THOSE
PROFITS AS HIS OWN AND WOULD HAVE BEEN TAXED ON THOSE PROFITS.  IF HE
HAD GAINED POSSESSION OF THE ORIGINAL FUNDS BY EXTORTION, FRAUD OR
USURIOUS PRACTICES, THOSE GAINS WOULD BE TAXABLE TO HIM UNDER THE
GENERAL LANGUAGE OF SEC. 22(A).  THE MAJORITY OPINION, HOWEVER, HOLDS
THAT IF HE GAINED POSSESSION OF THE ORIGINAL FUNDS BY EMBEZZLEMENT THEN
SUCH GAINS ARE NOT TO BE TAXED TO HIM UNDER THAT LANGUAGE.  THIS READS
INTO THE SECTION A SHARP DISTINCTION BETWEEN THE EMBEZZLER AND
DEFRAUDER, EXEMPTING THE FORMER BUT NOT THE LATTER.  IN THE ABSENCE OF
AN EXPRESS DECLARATION OF SUCH AN INTENT BY CONGRESS, I BELIEVE THAT
THE COURTS ARE NOT JUSTIFIED IN READING SUCH A DISTINCTION INTO THIS

FURTHERMORE, WHERE AN EMBEZZLER USES EMBEZZLED FUNDS FOR HIS OWN
PURPOSES AND, BY CONCEALMENT OF THE EMBEZZLEMENT OR OTHERWISE, DEPRIVES
HIS VICTIM OF A CORRESPONDING OPPORTUNITY TO ENJOY THOSE FUNDS, THE
CODE PERMITS HIS VICTIM TO DEDUCT AS A "LOSS," FROM THE VICTIM'S
TAXABLE INCOME, THE SUMS SO EMBEZZLED.  FN10  SEE BURNET V. HUFF, 288
U.S. 156.  THE ALLOWANCE OF SUCH A DEDUCTION SUGGESTS THE INTENT OF
CONGRESS TO TRANSFER THE LIABILITY FOR THE TAX ON THOSE FUNDS TO THE
EMBEZZLER.  THE MAJORITY OPINION PREVENTS SUCH A TRANSFER. 

A POINT HAS BEEN MADE OF THE FACT THAT THE GOVERNMENT'S TAX LIEN UPON
PROPERTY OF THE EMBEZZLER WOULD HAVE PRIORITY OVER THE CLAIM OF THE
VICTIM OF THE EMBEZZLEMENT TO RECOVER FROM SUCH PROPERTY THE LOSSES
WHICH THE VICTIM SUFFERED BY THE EMBEZZLEMENT.  THIS PRIORITY OF THE
TAX LIEN IS HARDLY AN ADEQUATE ARGUMENT TO ELIMINATE THE TAX ITSELF. 
AT MOST IT IS AN ARGUMENT FOR CONGRESS TO MODIFY THE TAX LIEN IN FAVOR
OF THE VICTIM. 

THERE IS NOTHING IN THE CODE THAT EXPRESSLY REQUIRES, AS A CONDITION
OF THE EXISTENCE OF A TAXABLE GAIN, THAT THERE ALSO BE AN ABSENCE OF "A
DEFINITE, UNCONDITIONAL OBLIGATION TO REPAY OR RETURN THAT WHICH WOULD
OTHERWISE CONSTITUTE A GAIN."  IN THE CASE OF NATIONAL CITY BANK V.
HELVERING, SUPRA, P. 95, THE TAXPAYER WAS TAXED ON BONDS WHICH HE HAD
UNLAWFULLY WITHHELD FROM THE CORPORATION OF WHICH HE WAS AN OFFICER. 
THESE BONDS WERE THE PROPERTY OF THE CORPORATION IN THE SENSE THAT IT
COULD HAVE RECLAIMED THEM AND THE COURT SAID - 

"BUT THERE ARE SEVERAL CASES IN WHICH PERSONS HAVE BEEN TAXED UPON
PROPERTY WHICH COULD BE RECOVERED FROM THEM.  FOR EXAMPLE, THE LENDER
UPON USURIOUS INTEREST - IF ON AN ACCRUAL BASIS - MUST INCLUDE HIS
APPARENT PROFIT IN HIS RETURN, THOUGH POSSIBLY HE MAY BE ALLOWED TO
DEDUCT IT AS A LOSS IF THE BORROWER RECLAIMS IT.  BARKER V. MAGRUDER,
68 APP. D.C. 211, 95 F.2D 122.  AGAIN, WHEN A RAILROAD COLLECTS TOO
LARGE FARES, THE EXCESS IS INCOME, THOUGH THE PASSENGERS HAVE A
THEORETICAL RIGHT OF RESTITUTION.  CHICAGO, R.I. & P.R. CO. V.
COMMISSIONER, 7 CIR., 47 F.2D 990." 

THE ADMINISTRATIVE INTERPRETATION OF SEC. 22(A) LONG HAS BEEN TO TAX
THE EMBEZZLED FUNDS.  IT DATES AT LEAST FROM G.C.M. 16572, XV-1 CUM.
BULL.  (1936) 82, IN WHICH IT WAS EXPRESSLY RECOMMENDED THAT THE
PROFITS OF AN EMBEZZLER "CONSTITUTE TAXABLE INCOME IN THE HANDS OF THE
EMBEZZLER FOR FEDERAL INCOME TAX PURPOSES."  THIS INTERPRETATION WAS
FOLLOWED BY THE TAX COURT IN THIS CASE AND IT HAS BEEN REGULARLY
FOLLOWED BY THE BOARD OF TAX APPEALS IN THE PAST.  KURRLE V.
COMMISSIONER, 1941 PRENTICE-HALL B.T.A. MEM. DECISIONS, P41,085,
AFFIRMED, 126 F.2D 723; ESTATE OF SPRUANCE V. COMMISSIONER, 43 B.T.A.
221, REVERSED SUB NOM. MCKNIGHT V. COMMISSIONER, 127 F.2D 572. 

BECAUSE OF THE LEGISLATIVE HISTORY OF SEC. 22(A), THE BREADTH OF THE
LANGUAGE USED BY CONGRESS IN THAT SECTION, THAT ATTEMPT OF CONGRESS TO
USE THE FULL MEASURE OF ITS TAXING POWER IN THAT SECTION, THE LONG
ESTABLISHED ADMINISTRATIVE PRACTICE OF HOLDING EMBEZZLED FUNDS TO BE
TAXABLE INCOME OF THE EMBEZZLER, AND FINALLY BECAUSE OF THE ARBITRARY
DISTINCTIONS IN FAVOR OF THE EMBEZZLER WHICH ARISE FROM AN OPPOSITE
INTERPRETATION OF THE CODE, I BELIEVE THAT EMBEZZLED FUNDS ARE TAXABLE
GAINS AS DEFINED BY CONGRESS. 

FN1  UNITED STATES V. SULLIVAN, 274 U.S. 259.  SEE ALSO, STEINBERG V.
UNITED STATES, 14 F.2D 564; MADDAS V. COMMISSIONER, 40 B.T.A. 572,
AFFIRMED, 114 F.2D 548; POZNAK V. COMMISSIONER, 14 B.T.A. 727. 

FN2  M'KENNA V. COMMISSIONER, 1 B.T.A. 326. 

FN3  WEINER V. COMMISSIONER, 10 B.T.A. 905. 

FN4  PATTERSON V. ANDERSON, 20 F.SUPP.  799. 

FN5  RICKARD V. COMMISSIONER, 15 B.T.A. 316. 

FN6  DROGE V. COMMISSIONER, 35 B.T.A. 829; HUNTINGTON V.
COMMISSIONER, 35 B.T.A. 835; VOYER V. COMMISSIONER, 4 B.T.A. 1192. 

FN7  CHADICK V. UNITED STATES, 77 F.2D 961, CERT. DENIED, 296 U.S.
609. 

FN8  UNITED STATES V. WAMPLER, 5 F.SUPP.  796. 

FN9 HUMPHREYS V. COMMISSIONER, 42 B.T.A. 857, AFFIRMED, 125 F.2D
340. 

FN10  26 U.S.C. SEC. 23(E). 
..END :




NIPPERT V. RICHMOND, 327 U.S. 416 


NO. 72.  ARGUED NOVEMBER 8, 1945.  - DECIDED FEBRUARY 25, 1946.  - 183
VA. 689, 33 S.E.2D 206, REVERSED. 


1.  A MUNICIPAL ORDINANCE IMPOSED UPON PERSONS "ENGAGED IN BUSINESS AS
SOLICITORS" AN ANNUAL LICENSE TAX OF "$50.00 AND ONE-HALF OF ONE PER
CENTUM OF THE GROSS EARNINGS, RECEIPTS, FEES OR COMMISSIONS FOR THE
PRECEDING LICENSE YEAR IN EXCESS OF $1,000."  A PERMIT FROM THE
DIRECTOR OF PUBLIC SAFETY WAS A PREREQUISITE TO ISSUANCE OF THE
LICENSE, AND VIOLATORS WERE SUBJECT TO CRIMINAL PENALTIES.  UPON A
RECORD WHICH SHOWED THAT APPELLANT HAD BEEN SOLICITING IN THE CITY FOR
FIVE DAYS, WITHOUT A LICENSE, ORDERS FOR OUT-OF-STATE CONFIRMATION AND
SHIPMENT INTO THE STATE, APPELLANT WAS CONVICTED AND FINED.  HELD THAT
THE ORDINANCE AS SO APPLIED VIOLATED THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION.  PP. 417, 434. 

2.  ROBBINS V. SHELBY COUNTY TAXING DIST., 120 U.S. 489, AND LATER
CASES, FOLLOWED; MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33,
DISTINGUISHED.  PP. 417-418, 420. 

3.  THE TAX HERE CAN NOT BE SUSTAINED AS ONE UPON THE "LOCAL
INCIDENT" OF "SOLICITATION."  WHETHER A "LOCAL INCIDENT" RELATED TO OR
AFFECTING INTERSTATE COMMERCE MAY BE MADE THE SUBJECT OF STATE TAXATION
DEPENDS UPON CONSIDERATIONS OF CONSTITUTIONAL POLICY HAVING REFERENCE
TO THE SUBSTANTIAL EFFECTS, ACTUAL OR POTENTIAL, OF THE PARTICULAR TAX
IN SUPPRESSING OR BURDENING COMMERCE UNDULY.  PP. 422-424. 

4.  THE EFFECTS OF THE TAX HERE IN QUESTION ARE NOT ONLY PROHIBITIVE
IN AN ABSOLUTE SENSE, IN MANY APPLICATIONS, BUT ARE DISCRIMINATORY IN
FAVOR OF THE LOCAL MERCHANT AS AGAINST THE OUT-OF-STATE ONE.  P. 431. 

(A)  THE ORDINANCE IS NOT SAVED BY THE FACT THAT IT IS NEITHER
PROHIBITIVE NOR DISCRIMINATORY ON ITS FACE; NOR BY THE FACT THAT IT IS
APPLICABLE ALSO TO ALL LOCAL DISTRIBUTORS OPERATING SIMILARLY.  P.
431. 

(B)  THE VERY DIFFERENCE BETWEEN INTERSTATE AND LOCAL TRADE, TAKEN IN
CONJUNCTION WITH THE INHERENT CHARACTER OF THE TAX, MAKES EQUALITY OF
APPLICATION AS BETWEEN THOSE TWO CLASSES OF COMMERCE, GENERALLY
SPEAKING, IMPOSSIBLE.  P. 432. 

5.  LOCAL GOVERNMENTS MAY NOT IMPOSE A TAX WHICH, THOUGH APPLICABLE
TO ALL COMMERCE, STRIKES DOWN OR DISCRIMINATES AGAINST LARGE VOLUMES OF
THAT COMMERCE, IN ORDER TO REACH OTHER PORTIONS AS TO WHICH THE
APPLICATION OF THE TAX WOULD PRODUCE NO SUCH CONSEQUENCES OR ONLY
NEGLIGIBLE ONES.  P. 433. 

6.  THE TAX HERE IN QUESTION INVOLVES TOO MANY PROBABILITIES, AND
ACTUALITIES, FOR EXCLUSION OF OR DISCRIMINATION AGAINST INTERSTATE
COMMERCE IN FAVOR OF LOCAL COMPETING BUSINESS, TO BE SUSTAINED IN ANY
SUCH APPLICATION AS THAT GIVEN IT IN THIS CASE.  P. 434. 

NIPPERT V. CITY OF RICHMOND. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

APPEAL FROM A JUDGMENT WHICH AFFIRMED A CONVICTION FOR VIOLATION OF A
MUNICIPAL ORDINANCE IMPOSING A LICENSE TAX.  REVERSED, P. 435. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER A LICENSE TAX LAID BY AN ORDINANCE OF THE
CITY OF RICHMOND, VIRGINIA, UPON ENGAGING IN BUSINESS AS SOLICITOR CAN
BE APPLIED IN THE FACTS OF THIS CASE CONSISTENTLY WITH THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION, ARTICLE I, SEC. 8.  AS THE CASE HAS
BEEN MADE, THE ISSUE IS SUBSTANTIALLY WHETHER THE LONG LINE OF SO
CALLED "DRUMMER CASES"  FN1  BEGINNING WITH ROBBINS V. SHELBY COUNTY
TAXING DISTRICT, 120 U.S. 489, SHALL BE ADHERED TO IN RESULT OR SHALL
NOW BE OVERRULED IN THE LIGHT OF WHAT ATTORNEYS FOR THE CITY SAY ARE
RECENT TRENDS REQUIRING THAT OUTCOME. 

THE ORDINANCE LAYS AN ANNUAL LICENSE TAX IN THE FOLLOWING TERMS: 

"(UPON)  ...  - AGENTS - SOLICITORS - PERSONS, FIRMS OR CORPORATIONS
ENGAGED IN BUSINESS AS SOLICITORS  ...  $50.00 AND ONE-HALF OF ONE PER
CENTUM OF THE GROSS EARNINGS, RECEIPTS, FEES OR COMMISSIONS FOR THE
PRECEDING LICENSE YEAR IN EXCESS OF $1,000.00.  PERMIT OF DIRECTOR OF
PUBLIC SAFETY REQUIRED BEFORE LICENSE WILL BE ISSUED...."  FN2 

APPELLANT WAS ARRESTED IN RICHMOND FOR HAVING ENGAGED IN THE BUSINESS
OF A SOLICITOR THERE WITHOUT PREVIOUSLY PROCURING THE REQUIRED
LICENSE.  AFTER HEARING BEFORE A POLICE COURT JUSTICE SHE WAS FINED
$25.00 AND COSTS AND ORDERED TO SECURE A LICENSE.  AN APPEAL WAS NOTED
TO THE HUSTINGS COURT OF THE CITY OF RICHMOND, WHERE A TRIAL DE NOVO
WAS HAD UPON THE AGREED STATEMENT OF FACTS SET FORTH IN THE MARGIN. 
FN3  THE HUSTINGS COURT HELD THE ORDINANCE APPLICABLE TO APPELLANT IN
THE CIRCUMSTANCES DISCLOSED BY THE FACTS AND WAS OF THE OPINION THAT,
SO APPLIED, IT WAS NOT IN CONFLICT WITH THE COMMERCE CLAUSE. 
ACCORDINGLY THE COURT FOUND THE APPELLANT GUILTY AND FINED HER FIVE
DOLLARS AND COSTS.  THE SUPREME COURT OF APPEALS OF VIRGINIA AFFIRMED. 
183 VA. 689, 33 S.E.2D 206.  FROM THAT JUDGMENT OF THE STATE'S HIGHEST
COURT THE CASE COMES HERE BY APPEAL. 

IF THE MATTER IS TO BE SETTLED SOLELY ON THE BASIS OF AUTHORITY,
NOTHING MORE IS REQUIRED THAN BARE REFERENCE TO THE LONG LIST OF
DRUMMER DECISIONS, WHICH HAVE HELD UNVARYINGLY THAT SUCH A TAX AS
RICHMOND HAS EXACTED CANNOT BE APPLIED CONSTITUTIONALLY TO SITUATIONS
IDENTICAL WITH OR SUBSTANTIALLY SIMILAR TO THE FACTS OF THIS CASE. 
AMONG THE LATEST OF THESE IS REAL SILK HOSIERY MILLS V. PORTLAND, 268
U.S. 325, IN WHICH A MUNICIPAL ORDINANCE REQUIRING SOLICITORS TO PAY A
LICENSE FEE WAS HELD UNCONSTITUTIONAL AS A FORBIDDEN BURDEN UPON
INTERSTATE COMMERCE WHEN APPLIED TO AN OUT-OF-STATE CORPORATION WHOSE
REPRESENTATIVES SOLICITED ORDERS FOR SUBSEQUENT INTERSTATE SHIPMENT. 
CF. BEST & CO. V. MAXWELL, 311 U.S. 454. 

COUNSEL FOR RICHMOND, HOWEVER, INSIST THAT OTHER CASES DECIDED HERE
HAVE SERIOUSLY IMPAIRED THE "DRUMMER" LINE OF AUTHORITY, SO MUCH SO
THAT THOSE RULINGS NO LONGER CAN STAND CONSISTENTLY WITH THE LATER
ONES.  THEIR PRINCIPAL RELIANCE IS ON MCGOLDRICK V. BERWIND-WHITE CO.,
309 U.S. 33, IN WHICH THE COURT SUSTAINED THE APPLICATION OF NEW YORK
CITY'S SALES TAX TO THE DELIVERY THERE, AT THE END OF ITS INTERSTATE
JOURNEY, OF COAL SHIPPED FROM PENNSYLVANIA PURSUANT TO CONTRACTS OF
SALE PREVIOUSLY MADE IN NEW YORK.  FN4  IT IS URGED THAT THE CASE IS
INDISTINGUISHABLE FROM THE PRESENT ONE ON ANY TENABLE BASIS RELATING TO
THE BEARING OR EFFECT OF THE TAX UPON INTERSTATE COMMERCE, ALTHOUGH THE
OPINION REVIEWED AT SOME LENGTH THE DRUMMER CASES, AMONG OTHERS, AND
EXPRESSLY DISTINGUISHED THEM.  FN5 

UNLESS THEREFORE THIS LATEST PRONOUNCEMENT UPON THEIR CONTINUING
AUTHORITY IS TO BE PUT ASIDE WITH THE CASES THEMSELVES, THE APPLICATION
MADE OF THE ORDINANCE IN THIS CASE MUST BE STRICKEN DOWN.  FOR THE TAX
THUS LAID IS PRECISELY THE "FIXED-SUM LICENSE TAXES IMPOSED ON THE
BUSINESS OF SOLICITING ORDERS FOR THE PURCHASE OF GOODS TO BE SHIPPED
INTERSTATE" WHICH THE BERWIND-WHITE OPINION DISTINGUISHED FROM THE NEW
YORK TAX.  FN6 

BUT WE ARE TOLD THAT THE RATIONALE OF THE DECISION REQUIRES THE
DISTINCTION TO BE DISCARDED.  AS COUNSEL STATE IT, THIS WAS "THAT THE
TAX WAS IMPOSED UPON EVENTS WHICH OCCURRED WITHIN THE TAXING
JURISDICTION WHICH EVENTS ARE SEPARATE AND DISTINCT FROM THE
TRANSPORTATION OR INTERCOURSE WHICH IS INTERSTATE COMMERCE."  FN7  THE
LOGIC IS COMPLETED BY NOTING THAT THE NEW YORK TAX WAS UPON THE "LOCAL
INCIDENT" OF "DELIVERY" WHILE IN THIS CASE IT IS ON THE LIKE INCIDENT
OF "SOLICITATION"; AND BY ADDING THE CONTENTION, GIVEN MORE SUBSTANCE
SINCE THE ARGUMENT BY OUR DECISION IN INTERNATIONAL SHOE CO. V.
WASHINGTON, 326 U.S. 310, THAT "MERE SOLICITATION" WHEN IT IS REGULAR,
CONTINUOUS AND PERSISTENT, RATHER THAN MERELY CASUAL, CONSTITUTES
"DOING BUSINESS," CONTRARY TO FORMERLY PREVAILING NOTIONS.  HENCE IT IS
CONCLUDED, SINCE THE DELIVERY IN THE BERWIND-WHITE CASE COULD BE TAXED,
SO CAN THE SOLICITATION IN THIS CASE. 

APPELLEE'S RATIONALIZATION TAKES ONLY PARTIAL ACCOUNT OF THE
REASONING AND POLICY UNDERLYING THE BERWIND-WHITE DECISION AND ITS
DIFFERENTIATION OF THE DRUMMER AUTHORITIES.  IF THE ONLY THING
NECESSARY TO SUSTAIN A STATE TAX BEARING UPON INTERSTATE COMMERCE WERE
TO DISCOVER SOME LOCAL INCIDENT WHICH MIGHT BE REGARDED AS SEPARATE AND
DISTINCT FROM "THE TRANSPORTATION OR INTERCOURSE WHICH IS" THE COMMERCE
ITSELF AND THEN TO LAY THE TAX ON THAT INCIDENT, ALL INTERSTATE
COMMERCE COULD BE SUBJECTED TO STATE TAXATION AND WITHOUT REGARD TO THE
SUBSTANTIAL ECONOMIC EFFECTS OF THE TAX UPON THE COMMERCE.  FOR THE
SITUATION IS DIFFICULT TO THINK OF IN WHICH SOME INCIDENT OF AN
INTERSTATE TRANSACTION TAKING PLACE WITHIN A STATE COULD NOT BE
SEGREGATED BY AN ACT OF MENTAL GYMNASTICS AND MADE THE FULCRUM OF THE
TAX.  ALL INTERSTATE COMMERCE TAKES PLACE WITHIN THE CONFINES OF THE
STATES AND NECESSARILY INVOLVES "INCIDENTS" OCCURRING WITHIN EACH STATE
THROUGH WHICH IT PASSES OR WITH WHICH IT IS CONNECTED IN FACT.  AND
THERE IS NO KNOWN LIMIT TO THE HUMAN MIND'S CAPACITY TO CARVE OUT FROM
WHAT IS AN ENTIRE OR INTEGRAL ECONOMIC PROCESS PARTICULAR PHASES OR
INCIDENTS, LABEL THEM AS "SEPARATE AND DISTINCT" OR "LOCAL," AND THUS
ACHIEVE ITS DESIRED RESULT. 

IT HAS NOT YET BEEN DECIDED THAT EVERY STATE TAX BEARING UPON OR
AFFECTING COMMERCE BECOMES VALID, IF ONLY SOME CONCEIVABLY OR
CONVENIENTLY SEPARABLE "LOCAL INCIDENT" MAY BE FOUND AND MADE THE FOCUS
OF THE TAX.  THIS IS NOT TO SAY THAT THE PRESENCE OF SO-CALLED LOCAL
INCIDENTS IS IRRELEVANT.  ON THE CONTRARY THE ABSENCE OF ANY CONNECTION
IN FACT BETWEEN THE COMMERCE AND THE STATE WOULD BE SUFFICIENT IN
ITSELF FOR STRIKING DOWN THE TAX ON DUE PROCESS GROUNDS ALONE; AND EVEN
SUBSTANTIAL CONNECTIONS, IN AN ECONOMIC SENSE, HAVE BEEN HELD
INADEQUATE TO SUPPORT THE LOCAL TAX.  FN8  BUT BEYOND THE PRESENCE OF A
SUFFICIENT CONNECTION IN A DUE PROCESS OR "JURISDICTIONAL" SENSE,
WHETHER OR NOT A "LOCAL INCIDENT" RELATED TO OR AFFECTING COMMERCE MAY
BE MADE THE SUBJECT OF STATE TAXATION DEPENDS UPON OTHER CONSIDERATIONS
OF CONSTITUTIONAL POLICY HAVING REFERENCE TO THE SUBSTANTIAL EFFECTS,
ACTUAL OR POTENTIAL, OF THE PARTICULAR TAX IN SUPPRESSING OR BURDENING
UNDULY THE COMMERCE.  FN9  SOME OF THESE AT LEAST WERE EMPHASIZED IN
THE BERWIND-WHITE OPINION. 

THUS THE COURT, REFERRING TO THE SHELBY COUNTY LINE OF DECISIONS,
STRESSED THAT "READ IN THEIR PROPER HISTORICAL SETTING THESE CASES MAY
BE SAID TO SUPPORT THE VIEW THAT THIS KIND OF A TAX IS LIKELY TO BE
USED 'AS AN INSTRUMENT OF DISCRIMINATION AGAINST INTERSTATE OR FOREIGN
COMMERCE'..."  FN10  AND THAT THE TAX "IN ITS PRACTICAL OPERATION, WAS
CAPABLE OF USE, THROUGH INCREASE IN THE TAX, AND IN FACT OPERATED TO
SOME EXTENT TO PLACE THE MERCHANT THUS DOING BUSINESS INTERSTATE AT A
DISADVANTAGE IN COMPETITION WITH UNTAXED SALES AT RETAIL STORES WITHIN
THE STATE."  FN11  NOTING THAT THE STATE IN SOME INSTANCES CAN SUPPRESS
OR CURTAIL ONE KIND OF LOCAL BUSINESS FOR THE ADVANTAGE OF ANOTHER TYPE
OF COMPETING BUSINESS, THE OPINION DENIED THAT INTERSTATE COMMERCE "MAY
BE SIMILARLY AFFECTED BY THE PRACTICAL OPERATION OF A STATE TAXING
STATUTE," AND ALSO DENIED THAT THE NEW YORK TAX HAD ANY SUCH ACTUAL OR
POTENTIAL EFFECT. 

THUS THE ESSENCE OF THE DISTINCTION TAKEN IN THE BERWIND-WHITE CASE
WAS THAT THE TAXES OUTLAWED IN THE DRUMMER CASES IN THEIR PRACTICAL
OPERATION WORKED DISCRIMINATORILY AGAINST INTERSTATE COMMERCE TO IMPOSE
UPON IT A BURDEN, EITHER IN FACT OR BY THE EVERY THREAT OF ITS
INCIDENCE, WHICH THEY DID NOT PLACE UPON COMPETING LOCAL BUSINESS AND
WHICH THE NEW YORK SALES TAX DID NOT CREATE.  FN12  SEE BEST & CO. V.
MAXWELL, 311 U.S. 454; CF. NELSON V. SEARS, ROEBUCK & CO., 312 U.S.
359. 

AS HAS BEEN SO OFTEN STATED BUT NEVERTHELESS SEEMS TO REQUIRE
CONSTANT REPETITION, NOT ALL BURDENS UPON COMMERCE, BUT ONLY UNDUE OR
DISCRIMINATORY ONES, ARE FORBIDDEN N13.  FOR, THOUGH "INTERSTATE
BUSINESS MUST PAY ITS WAY,"  FN14  A STATE CONSISTENTLY WITH THE
COMMERCE CLAUSE CANNOT PUT A BARRIER AROUND ITS BORDERS TO BAR OUT
TRADE FROM OTHER STATES AND THUS BRING TO NAUGHT THE GREAT
CONSTITUTIONAL PURPOSE OF THE FATHERS IN GIVING TO CONGRESS THE POWER
"TO REGULATE COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL
STATES  ..."  FN15  NOR MAY THE PROHIBITION BE ACCOMPLISHED IN THE
GUISE OF TAXATION WHICH PRODUCES THE EXCLUDING OR DISCRIMINATORY
EFFECT.  FN16 

APPELLEE ARGUES, AS THE VIRGINIA SUPREME COURT OF APPEALS HELD,  FN17
THAT THE RICHMOND TAX IS NOT DISCRIMINATORY OR UNDULY BURDENSOME IN
EFFECT.  IN SUPPORT OF THIS VIEW IT RELIES MAINLY ON TWO CONTENTIONS,
FIRST, THAT THE TAX IS NO MORE DISCRIMINATORY OR BURDENSOME THAN WAS
THE TAX IN THE BERWIND-WHITE CASE; AND, SECOND, THAT IT APPLIES ALIKE
TO ALL SOLICITORS WHETHER THEY ARE ENGAGED IN SOLICITING FOR LOCAL OR
FOR INTERSTATE BUSINESS.  APART FROM THE FACT THAT THE TAX AS APPLIED
HERE IS LAID DIRECTLY UPON SALES ARISING ONLY UNDER CONTRACTS REQUIRING
INTERSTATE SHIPMENT OF GOODS, CF. 309 U.S. 48 FF., THE CONTENTIONS
ENTIRELY MISCONCEIVE WHAT IS MEANT BY DISCRIMINATION OR UNDUE BURDEN IN
THE SENSE APPLICABLE TO THESE PROBLEMS. 

IN VIEW OF THE RULING IN INTERNATIONAL SHOE CO. V. WASHINGTON, SUPRA,
WE PUT ASIDE ANY SUGGESTION THAT "SOLICITATION," WHEN CONDUCTED
REGULARLY AND CONTINUOUSLY WITHIN THE STATE, SO AS TO CONSTITUTE A
COURSE OF BUSINESS, MAY NOT BE "DOING BUSINESS" JUST AS IS THE MAKING
OF DELIVERY, AT ANY RATE FOR THE PURPOSE OF FOCUSING A TAX WHICH IN
OTHER RESPECTS WOULD BE SUSTAINABLE.  BUT WE DO NOT THINK THE TAX AS IT
WAS APPLIED IN THIS CASE EITHER CONFORMS TO THOSE CONDITIONS OF
REGULARITY AND CONTINUITY OR AVOIDS OTHER PROHIBITED EFFECTS. 

THE SALES AND THE DELIVERIES IN THE BERWIND-WHITE CASE WERE REGULAR,
CONTINUOUS AND PERSISTENT.  THEY CONSTITUTED A "COURSE OF BUSINESS." 
THERE WAS NO SUGGESTION, NOR ANY BASIS IN THE FACTS FOR ONE, THAT THEY
WERE ONLY CASUAL, SPASMODIC OR IRREGULAR.  ON THE PRESENT RECORD THE
ONLY SHOWING IS THAT APPELLANT "ON JANUARY 20, 1944, WAS SOLICITING
ORDERS" IN RICHMOND, FOR LATER OUT-OF-STATE CONFIRMATION AND
FULFILLMENT, AND THAT FOR FOUR DAYS PRIOR TO THAT DATE SHE HAD BEEN
ENGAGED IN SUCH SOLICITATION "FROM PLACE TO PLACE IN THE CITY OF
RICHMOND," INCLUDING PARTICULARLY SOLICITATION OF THE CLERKS IN THE
DEPARTMENT STORE OF MILLER & RHOADS, INCORPORATED, AND IN A FIVE AND
TEN CENT STORE.  THERE WAS NO SHOWING THAT, APART FROM THESE FIVE DAYS,
APPELLANT HAD SOLICITED PREVIOUSLY IN RICHMOND, THAT SHE INTENDED TO
RETURN LATER FOR THE SAME PURPOSE OR, IF SO, WHETHER REGULARLY AND
INDEFINITELY OR ONLY OCCASIONALLY AND SPASMODICALLY. 

THIS DIFFERENCE IN THE FACTS WOULD BE SUFFICIENT IN ITSELF TO
DISTINGUISH THE CASES.  BUT THERE ARE OTHER DIFFERENCES.  THE TAX HERE
WAS A FIXED SUBSTANTIAL SUM FOR THE FIRST YEAR, TO WHICH IN SUBSEQUENT
YEARS WOULD BE ADDED ONE-HALF OF ONE PER CENT OF THE GROSS RETURNS IN
EXCESS OF $1000.  AND, REGARDLESS OF THE DISCRETIONARY ELEMENT IN THE
ISSUING FUNCTION OF THE DIRECTOR OF PUBLIC SAFETY, HIS PERMIT WAS
REQUIRED WITH PAYMENT OF THE TAX BEFORE THE LICENSE COULD ISSUE OR THE
ACT OF SOLICITATION COULD LAWFULLY TAKE PLACE, CRIMINAL SANCTION BEING
PRESCRIBED FOR VIOLATION.  SO FAR AS APPEARS A SINGLE ACT OF UNLICENSED
SOLICITATION WOULD BRING THE SANCTION INTO PLAY.  THE TAX THUS
INHERENTLY BORE NO RELATION TO THE VOLUME OF BUSINESS DONE OR OF
RETURNS FROM IT.  THE NEW YORK SALES TAX, ON THE OTHER HAND, WAS
LIMITED TO A PERCENTAGE OF THE GROSS RETURNS, BEING THUS DIRECTLY
PROPORTIONED TO THE VOLUME OF BUSINESS TRANSACTED AND OF RETURNS FROM
IT.  ALTHOUGH THE SELLER WAS PUT UNDER DUTY TO PAY THE TAX WITHIN A
SPECIFIED TIME FROM THE SALE, HE WAS NOT REQUIRED TO OBTAIN A PERMIT OR
LICENSE BEFOREHAND IN ORDER TO INITIATE OR COMPLETE THE TRANSACTION. 
MOREOVER THE ECONOMIC INCIDENCE OF THE TAX FELL ONLY UPON COMPLETED
TRANSACTIONS, NOT AS IN THIS CASE ON THE VERY INITIAL STEP TOWARD
BRINGING ONE ABOUT. 

OBVIOUSLY DIFFERENT THEREFORE ARE THE TWO TAXES, FIRST, IN THEIR
EXCLUSIONARY EFFECTS, ESPECIALLY UPON SMALL OUT-OF-STATE OPERATORS,
WHETHER CASUAL OR REGULAR; AND ALSO, IT WOULD SEEM CLEAR, IN
DISCRIMINATORY EFFECTS AS BETWEEN SUCH OPERATORS AND LOCAL ONES OF THE
SAME TYPE OR OTHER COMPETING LOCAL MERCHANTS.  THE NEW YORK TAX BORE
EQUALLY UPON ALL, WHETHER LOCAL OR OUT-OF-STATE AND WHETHER MAKING A
SINGLE SALE OR CASUAL ONES OR ENGAGING CONTINUOUSLY IN THEM THROUGHOUT
THE YEAR.  AS THE COURT SAID, IT IS DIFFICULT TO SEE HOW THE NEW YORK
TAX COULD BEAR IN ANY CASE MORE HEAVILY UPON OUT-OF-STATE OPERATORS
THAN UPON LOCAL ONES, APART FROM POSSIBLE MULTIPLE STATE TAXATION OR
THE THREAT OF IT SUCH AS, AMONG OTHER CONSIDERATIONS N18, WAS THOUGHT
TO FORBID THE LEVY AND COLLECTION OF THE TAX IN ADAMS MFG. CO. V.
STOREN, 304 U.S. 307.  THE INCIDENCE OF THE TAX WAS THE SAME UPON BOTH
TYPES OF TRANSACTIONS, AS WAS ITS AMOUNT; AND IF IN ANY INSTANCE THERE
WAS EXCLUSIONARY EFFECT OR TENDENCY, THIS DID NOT APPEAR FROM THE
RECORD OR FROM THE INHERENT CHARACTER OF THE TAX.  NEITHER DID ANY
POSSIBILITY APPEAR THAT IT WOULD STRIKE MORE HEAVILY UPON OUT-OF-STATE
SELLERS THAN ON LOCAL ONES, APART FROM THAT OF MULTIPLE STATE
TAXATION.  FN19 

IN ADDITION TO THAT POSSIBILITY, THE RICHMOND TAX IMPOSES SUBSTANTIAL
EXCLUDING AND DISCRIMINATORY EFFECTS OF ITS OWN.  AS HAS BEEN SAID, THE
SMALL OPERATOR PARTICULARLY AND MORE ESPECIALLY THE CASUAL OR
OCCASIONAL ONE FROM OUT OF THE STATE WILL FIND THE TAX NOT ONLY
BURDENSOME BUT PROHIBITIVE, WITH THE RESULT THAT THE COMMERCE IS
STOPPED BEFORE IT IS BEGUN.  AND THIS EFFECT WILL BE EXTENDED TO MORE
SUBSTANTIAL AND REGULAR OPERATORS, PARTICULARLY THOSE WHOSE PRODUCT IS
OF HIGHLY LIMITED OR SPECIAL CHARACTER AND WHOSE MARKET IN ANY SINGLE
LOCALITY FOR THAT REASON OR OTHERS CANNOT BE MINED MORE THAN ONCE IN
EVERY SO OFTEN.  FN20 

THE POTENTIAL EXCLUDING EFFECTS FOR ITINERANT SALESMEN BECOME MORE
APPARENT WHEN THE CONSEQUENCES OF INCREASING THE AMOUNT OF THE TAX ARE
CONSIDERED.  CF. MCGOLDRICK V. BERWIND-WHITE CO., SUPRA, AT 58.  AND
THEY ARE MAGNIFIED MANY TIMES BY RECALLING THAT THE TAX IS A MUNICIPAL
TAX, NOT ONE IMPOSED BY THE STATE LEGISLATURE FOR UNIFORM APPLICATION
THROUGHOUT THE STATE. 

IT IS TRUE THAT IN LEGAL THEORY THE MUNICIPALITY EXERCISES BY
DELEGATION THE STATE'S LEGISLATIVE POWER AND THAT PRIOR DECISIONS HERE
HAVE NOT RESTED SQUARELY UPON ANY DIFFERENCE BETWEEN A TAX MUNICIPALLY
IMPOSED AND ONE LAID BY THE LEGISLATURE.  BUT THE CUMULATIVE EFFECT,
PRACTICALLY SPEAKING, OF FLAT MUNICIPAL TAXES LAID IN SUCCESSION UPON
THE ITINERANT MERCHANT AS HE PASSES FROM TOWN TO TOWN IS OBVIOUSLY
GREATER THAN THAT OF ANY TAX OF STATE-WIDE APPLICATION LIKELY TO BE
LAID BY THE LEGISLATURE ITSELF.  AND IT IS ALMOST AS OBVIOUS THAT THE
CUMULATIVE BURDEN WILL BE FELT MORE STRONGLY BY THE OUT-OF-STATE
ITINERANT THAN BY THE ONE WHO CONFINES HIS MOVEMENT WITHIN THE STATE OR
THE SALESMAN WHO OPERATES WITHIN A SINGLE COMMUNITY OR ONLY A FEW. 
FN21  THE DRUMMER OR SALESMAN WHOSE BUSINESS REQUIRES HIM TO MOVE FROM
PLACE TO PLACE, EXHAUSTING HIS MARKET AT EACH PERIODIC VISIT OR
CONDUCTING HIS BUSINESS IN MORE SPORADIC FASHION WITH REFERENCE TO
PARTICULAR LOCALITIES, WOULD FIND THE CUMULATIVE BURDEN OF THE RICHMOND
TYPE OF TAX EATING AWAY ALL POSSIBLE RETURN FROM HIS SELLING.  A DAY
HERE, A DAY THERE, FIVE DAYS NOW AND FIVE DAYS A YEAR OR SEVERAL MONTHS
LATER, WITH A FLAT LICENSE TAX ANNUALLY IMPOSED LACKING ANY PROPORTION
TO THE NUMBER OR LENGTH OF VISITS OR THE VOLUME OF THE BUSINESS OR
RETURN, CAN ONLY MEAN THE STOPPAGE OF A LARGE AMOUNT OF COMMERCE WHICH
WOULD BE CARRIED ON EITHER IN THE ABSENCE OF THE TAX OR UNDER THE
INCIDENCE OF ONE TAKING ACCOUNT OF THESE VARIATIONS. 

THESE EFFECTS, NOT PRESENT IN THE BERWIND-WHITE TYPE OF TAX,  FN22
ARE INHERENT IN THE RICHMOND TYPE IN RELATION TO A WIDE VARIETY OF
SELLING ACTIVITIES.  THEY ARE NOT ONLY PROHIBITIVE IN AN ABSOLUTE
SENSE, FOR MANY APPLICATIONS.  THEY ARE DISCRIMINATORY IN FAVOR OF THE
LOCAL MERCHANT AS AGAINST THE OUT-OF-STATE ONE. 

IT IS NO ANSWER, AS APPELLEE CONTENDS, THAT THE TAX IS NEITHER
PROHIBITIVE NOR DISCRIMINATORY ON THE FACE OF THE ORDINANCE; OR THAT IT
APPLIES TO ALL LOCAL DISTRIBUTORS DOING BUSINESS AS APPELLANT HAS
DONE.  NOT THE TAX IN A VACUUM OF WORDS, BUT ITS PRACTICAL CONSEQUENCES
FOR THE DOING OF INTERSTATE COMMERCE IN APPLICATIONS TO CONCRETE FACTS
ARE OUR CONCERN.  FN23  TO IGNORE THE VARIATIONS IN EFFECT WHICH FOLLOW
FROM APPLICATION OF THE TAX, UNIFORM ON THE FACE OF THE ORDINANCE, TO
HIGHLY DIFFERENT FACT SITUATIONS IS ONLY TO IGNORE THOSE PRACTICAL
CONSEQUENCES.  IN THAT BLINDNESS LIES THE VICE OF THE TAX AND OF
APPELLEE'S POSITION. 

THE TAX, BY REASON OF THOSE VARIATIONS, CANNOT BE TAKEN TO APPLY
GENERALLY TO LOCAL DISTRIBUTORS IN THE SAME MANNER AND WITH LIKE
EFFECTS AS IN APPLICATION TO OUT-OF-STATE DISTRIBUTORS.  THE VERY
DIFFERENCE IN LOCATIONS OF THEIR BUSINESS HEADQUARTERS, IF ANY, AND OF
THEIR ACTIVITIES MAKES THIS IMPOSSIBLE.  THIS, OF COURSE, IS BUT
ANOTHER WAY OF SAYING THAT THE VERY DIFFERENCE BETWEEN INTERSTATE AND
LOCAL TRADE, TAKEN IN CONJUNCTION WITH THE INHERENT CHARACTER OF THE
TAX, MAKES EQUALITY OF APPLICATION AS BETWEEN THOSE TWO CLASSES OF
COMMERCE, GENERALLY SPEAKING, IMPOSSIBLE. 

IT IS TRUE THAT THE TAX MAY STRIKE AS HEAVILY UPON SOME VIRGINIA
SOLICITORS, AND EVEN UPON SOME WHO CONFINE THEMSELVES TO RICHMOND, AS
IT DOES UPON OTHERS WHO COME PERIODICALLY OR OTHERWISE FROM WASHINGTON,
NEW YORK OR CEDAR RAPIDS.  AND IT MAY BEAR UPON A FEW OF THE FORMER
MORE HEAVILY THAN UPON MOST OF THE LATTER.  BUT NEITHER CONSEQUENCE IS
THE MORE PROBABLE ONE FOR THE LARGER NUMBER OF CASES.  THE STRONG
LIKELIHOOD IS THE OTHER WAY.  AND TO POINT TO EITHER OF THOSE
POSSIBILITIES IS ONLY TO SAY, IN A DIFFERENT WAY, THAT THE TAX IS
HIGHLY VARIABLE IN ITS INCIDENCE AND EFFECTS WITH REFERENCE TO THE
MANNER IN WHICH ONE ORGANIZES HIS BUSINESS AND ESPECIALLY IN RESPECT TO
ITS LOCATION AND SPREAD IN RELATION TO STATE LINES.  IT WAS EXACTLY
THESE VARIATIONS, WHEN THEY BEAR WITH UNDUE BURDEN UPON COMMERCE THAT
CROSSES STATE LINES, WHICH THE COMMERCE CLAUSE WAS INTENDED TO
PREVENT. 

WE ARE NOT UNMINDFUL THAT LARGE ENTERPRISE WHICH "DOES BUSINESS" BY
SENDING SOLICITORS REGULARLY AND CONTINUOUSLY INTO SEVERAL STATES, CF.
INTERNATIONAL SHOE CO. V. WASHINGTON, SUPRA, MAY HAVE THE FINANCIAL
RESOURCES AND ESTABLISHED COURSE OF BUSINESS ENABLING IT TO ABSORB THE
TAX AND JUSTIFYING ITS DOING SO IN AN ECONOMIC SENSE; OR THAT,
THEREFORE, IF THE RULING SHOULD EXTEND TO SUCH A SITUATION, THE
BUSINESS SO SITUATED WOULD ESCAPE TO THAT EXTENT BEARING THE BURDEN OF
THE TAX BORNE BY LOCAL BUSINESSES SIMILARLY SITUATED, ABSENT SOME OTHER
FORM OF TAX TO EQUALIZE THE BURDEN.  BUT, IN THE FIRST PLACE, NO SUCH
CASE IS PRESENTED BY THE FACTS HERE.  FN24 AND EVEN IF SUCH A RESULT
SHOULD BE THOUGHT NECESSARY IN ORDER TO AVOID THE FORBIDDEN
CONSEQUENCES IN SO MANY OTHER APPLICATIONS, THAT FACT WOULD NOT JUSTIFY
SUSTAINING THE TAX AND PERMITTING THOSE CONSEQUENCES TO OCCUR. 

THERE IS NO LACK OF POWER IN THE STATE OR ITS MUNICIPALITIES TO SEE
THAT INTERSTATE COMMERCE BEARS WITH LOCAL TRADE ITS FAIR SHARE OF THE
COST OF LOCAL GOVERNMENT, MORE ESPECIALLY IN VIEW OF RECENT TRENDS IN
THIS FIELD.  MCGOLDRICK V. BERWIND-WHITE CO., SUPRA.  BUT THIS DOES NOT
MEAN, AND THE TRENDS DO NOT SIGNIFY, THAT THE STATE OR MUNICIPAL
GOVERNMENTS MAY DEVISE A TAX APPLICABLE TO ALL COMMERCE ALIKE, WHICH
STRIKES DOWN OR DISCRIMINATES AGAINST LARGE VOLUMES OF THAT COMMERCE IN
ORDER TO REACH OTHER PORTIONS AS TO WHICH THE APPLICATION OF THE TAX
WOULD PRODUCE NO SUCH CONSEQUENCES OR ONLY NEGLIGIBLE ONES.  OTHER
TYPES OF TAX ARE AVAILABLE FOR REACHING BOTH PORTIONS WHICH DO NOT
INVOLVE THE FORBIDDEN EVILS OR THE NECESSITY FOR PUTTING THEM UPON SOME
COMMERCE IN ORDER TO REACH OTHER.  THE PROBLEM COMES DOWN THEREFORE TO
WHETHER THE STATE OR MUNICIPAL LEGISLATIVE BODIES IN FRAMING THEIR
TAXING MEASURES TO REACH INTERSTATE COMMERCE SHALL BE AT PAINS TO DO SO
IN A MANNER WHICH AVOIDS THE EVILS FORBIDDEN BY THE COMMERCE CLAUSE AND
PUTS THAT COMMERCE ACTUALLY UPON A PLANE OF EQUALITY WITH LOCAL TRADE
IN LOCAL TAXATION, NOT AS IS SAID TO A QUESTION OF WHETHER INTERSTATE
TRADE SHALL BEAR ITS FAIR SHARE OF THE COST OF LOCAL GOVERNMENT, THE
BENEFIT AND PROTECTION OF WHICH IT ENJOYS ON A PAR WITH LOCAL
BUSINESS. 

THE TAX HERE IN QUESTION INHERENTLY INVOLVES TOO MANY PROBABILITIES,
AND WE THINK ACTUALITIES, FOR EXCLUSION  FN25  OF OR DISCRIMINATION
AGAINST INTERSTATE COMMERCE, IN FAVOR OF LOCAL COMPETING BUSINESS, TO
BE SUSTAINED IN ANY APPLICATION SUBSTANTIALLY SIMILAR TO THE PRESENT
ONE.  WHETHER OR NOT IT WAS SO INTENDED, THOSE ARE ITS NECESSARY
EFFECTS.  INDEED, IN VIEW OF THAT FACT AND OTHERS OF COMMON KNOWLEDGE,
WE CANNOT BE UNMINDFUL, AS OUR PREDECESSORS WERE NOT WHEN THEY STRUCK
DOWN THE DRUMMER TAXES, THAT THESE ORDINANCES LEND THEMSELVES
PECULIARLY TO CREATING THOSE VERY CONSEQUENCES OR THAT IN FACT THIS IS
OFTEN IF NOT ALWAYS THE OBJECT OF THE LOCAL COMMERCIAL INFLUENCES WHICH
INDUCE THEIR ADOPTION.  PROVINCIAL INTERESTS AND LOCAL POLITICAL POWER
ARE AT THEIR MAXIMUM WEIGHT IN BRINGING ABOUT ACCEPTANCE OF THIS TYPE
OF LEGISLATION.  WITH THE FORCES BEHIND IT, THIS IS THE VERY KIND OF
BARRIER THE COMMERCE CLAUSE WAS PUT IN THE FUNDAMENTAL LAW TO GUARD
AGAINST.  IT MAY BE, AS THE COURT SAID IN THE BERWIND-WHITE CASE, THAT
THE STATE IS FREE TO ALLOW ITS MUNICIPAL SUBDIVISIONS TO ERECT SUCH
BARRIERS AGAINST EACH OTHER, TO SOME EXTENT, AS TO THE COMMERCE OVER
WHICH THE STATE HAS EXCLUSIVE CONTROL.  IT CANNOT SO OUTLAW OR BURDEN
THE COMMERCE OF THE UNITED STATES. 

THE DRUMMER IS A FIGURE REPRESENTATIVE OF A BY-GONE DAY.  FN26  BUT
HIS MODERN PROTOTYPE PERSISTS UNDER MORE EUPHONIOUS APPELLATIONS.  SO
ENDURE THE BASIC REASONS WHICH BROUGHT ABOUT HIS PROTECTION FROM THE
KIND OF LOCAL FAVORITISM THE FACTS OF THIS CASE TYPIFY. 

WE HAVE CONSIDERED APPELLEE'S OTHER CONTENTIONS AND FIND THEM WITHOUT
MERIT. 

THE JUDGMENT IS REVERSED. 

FN1  SEE THE AUTHORITIES CITED IN MCGOLDRICK V. BERWIND-WHITE CO., 309
U.S. 33, 55-57, AND THE COURT'S DISCUSSION, PARTICULARLY IN NOTE 11. 
AS THERE STATED, IN THE SHELBY COUNTY CASE THE COURT WAS COGNIZANT OF
THE RAPIDLY GROWING TENDENCY OF STATES AND MUNICIPALITIES TO LAY
LICENSE TAXES UPON DRUMMERS "FOR THE PURPOSE OF EMBARRASSING THIS
COMPETITION WITH LOCAL MERCHANTS," AND FOLLOWING THE SHELBY COUNTY
DECISION NINETEEN SUCH TAXES WERE HELD INVALID. 

FOR A DISCUSSION OF DISTINCTION BETWEEN DRUMMERS AND PEDDLERS, SEE
COMMENT, 40 YALE L.J. 1094. 

FN2  CHAPTER 10, SEC. 23, RICHMOND CITY CODE (1939). 

CHAPTER 10, SEC. 166 1/2(A) READS:  "EVERY PERSON, FIRM AND
CORPORATION DESIRING A LICENSE UNDER SECTIONS 14, 16, 23, 94, 120 AND
143, OF THIS CHAPTER SHALL FIRST APPLY TO THE DIRECTOR OF PUBLIC SAFETY
FOR A PERMIT ON BEHALF OF SAID INDIVIDUAL, FIRM OR CORPORATION, AS THE
CASE MAY BE, TO CONDUCT THE BUSINESS WHICH IS DESIRED TO BE CONDUCTED
AND SHALL PRODUCE TO THAT DIRECTOR EVIDENCE OF THE GOOD CHARACTER OF
THE INDIVIDUAL, THE MEMBERS OF THE FIRM, OR THE CHIEF OFFICERS OF THE
CORPORATION, AS THE CASE MAY BE, AND IT SHALL THEREUPON BE THE DUTY OF
THE DIRECTOR OF PUBLIC SAFETY TO MAKE A REASONABLE INVESTIGATION OF THE
CHARACTER OF SAID INDIVIDUAL, EACH OF THE MEMBERS OF THE FIRM, OR EACH
OF THE CHIEF OFFICERS OF THE CORPORATION, AS THE CASE MAY BE, AND IF HE
BE SATISFIED THAT THE INDIVIDUAL, THE MEMBERS OF THE FIRM OR THE
PRINCIPAL OFFICERS OF THE CORPORATION, AS THE CASE MAY BE, BE OF GOOD
MORAL CHARACTER AND A PERSON OR PERSONS FIT TO ENGAGE IN THE PROPOSED
BUSINESS, HE SHALL ISSUE THE PERMIT.  THE FORM OF THE APPLICATION FOR
SUCH PERMIT AND THE FORM OF THE PERMIT ITSELF SHALL BE PREPARED AND
FURNISHED BY THE DIRECTOR OF PUBLIC SAFETY." 

APPELLANT HAS ARGUED IN THIS COURT THAT THE ORDINANCE'S REQUIREMENTS
RELATING TO PERMITS, PARTICULARLY IN SO FAR AS THEY MAY VEST IN THE
DIRECTOR OF PUBLIC SAFETY DISCRETIONARY POWER TO GRANT OR WITHHOLD THE
PERMIT, OF THEIR OWN FORCE AND WITHOUT REFERENCE TO THE CHARACTER OF
THE TAX IN OTHER RESPECTS RENDER IT INVALID IN THE PRESENT
APPLICATION.  APPELLEE INSISTS THAT THE POINT WAS NOT PRESENTED IN THE
STATE COURTS AND THEREFORE IS NOT OPEN FOR CONSIDERATION HERE.  IN VIEW
OF THE DISPOSITION WE MAKE OF THE CAUSE ON OTHER GROUNDS, IT IS NOT
NECESSARY TO CONSIDER THESE QUESTIONS. 

FN3  "THE AMERICAN GARMENT COMPANY, WHICH IS OWNED AND OPERATED BY
JOHN V. ROSSER, WITH ITS MAIN OFFICE AT 3617 12TH STREET, N.E.,
WASHINGTON, D.C., IS ENGAGED IN THE MANUFACTURE AND SALE OF CERTAIN
LADIES' GARMENTS.  THE AMERICAN GARMENT COMPANY EMPLOYS SOLICITORS WHO
TRAVEL FROM CITY TO CITY THROUGHOUT THE COUNTRY AND OBTAIN ORDERS FOR
THIS PARTICULAR GARMENT, WHICH IS SOLD FOR $2.98, AND THE SOLICITOR
RECEIVES FROM THE PURCHASER A DOWN PAYMENT USUALLY SUFFICIENT TO PAY
THE COMMISSION OF THE SOLICITOR, AND THE ORDER IS THEN SENT TO THE HOME
OFFICE OF THE AMERICAN GARMENT COMPANY AND THE GARMENT IS THEN SENT
THROUGH THE UNITED STATES MAILS C.O.D. FOR THE BALANCE TO THE
PURCHASER.  THE SOLICITORS AT NO TIME MAKE A DELIVERY OF THE ARTICLE. 

"THE DEFENDANT HEREIN WAS NOT AND IS NOT CARRIED ON THE ROLLS OF THE
AMERICAN GARMENT COMPANY AS AN EMPLOYEE AND HER SOLE COMPENSATION IS
THE COMMISSION RECEIVED FROM THE SALE OF EACH ARTICLE. 

"THE DEFENDANT, DOROTHY NIPPERT, ON JANUARY 20, 1944, WAS SOLICITING
ORDERS FOR THE AMERICAN GARMENT COMPANY, AS ABOVE SET FORTH, IN THE
CITY OF RICHMOND, AND THAT DOROTHY NIPPERT HAD BEEN ENGAGED FOR FOUR
DAYS PRIOR TO JANUARY 20, 1944, IN GOING FROM PLACE TO PLACE IN THE
CITY OF RICHMOND AND IN SOLICITING ORDERS FOR THE SALE OF MERCHANDISE
ON BEHALF OF THE AMERICAN GARMENT COMPANY AND HAD, DURING THAT TIME,
BEEN ENGAGED IN GOING FROM PLACE TO PLACE WITHIN THE PLACES OF BUSINESS
OF MILLER & RHOADS, INCORPORATED, A LARGE DEPARTMENT STORE IN THE CITY
OF RICHMOND AND WITHIN THE PLACE OF BUSINESS OF ONE OF THE FIVE AND TEN
CENT STORES IN THE CITY OF RICHMOND, AND THEREIN SOLICITING THE CLERKS
IN THOSE STORES SO AS TO PROCURE FROM THOSE CLERKS ORDERS FOR THE SALE
OF MERCHANDISE ON BEHALF OF THE AMERICAN GARMENT COMPANY, AND THAT SUCH
SOLICITATION OCCURRED ON THE 20TH OF JANUARY, 1944, AND THAT SHE, THE
SAID DOROTHY NIPPERT, HAD NOT (THERETOFORE) PROCURED A CITY REVENUE
LICENSE FROM THE CITY OF RICHMOND."    FN4  SOME RELIANCE APPEARS TO BE
PLACED ALSO UPON OTHER MORE RECENT CASES, INCLUDING INTERNATIONAL
HARVESTER CO. V. DEPARTMENT OF TREASURY, 322 U.S. 340, AND GENERAL
TRADING CO. V. STATE TAX COMMISSION, 322 U.S. 335.    FN5  POINTING
OUT, WITH A REFERENCE TO THE SHELBY COUNTY CASE ITSELF, THAT IN SOME OF
THE CASES THE TAX APPEARED TO BE AIMED AT THE SUPPRESSION OF THIS TYPE
OF BUSINESS OR PUTTING IT AT DISADVANTAGE WITH COMPETING INTRASTATE
SALES, THE OPINION CONTINUED: 

"IN ALL (THE CITED CASES), THE STATUTE, IN ITS PRACTICAL OPERATION,
WAS CAPABLE OF USE, THROUGH INCREASE IN THE TAX, AND IN FACT OPERATED
TO SOME EXTENT TO PLACE THE MERCHANT THUS DOING BUSINESS INTERSTATE AT
A DISADVANTAGE IN COMPETITION WITH UNTAXED SALES AT RETAIL STORES
WITHIN THE STATE.  WHILE A STATE, IN SOME CIRCUMSTANCES, MAY BY
TAXATION SUPPRESS OR CURTAIL ONE TYPE OF INTRASTATE BUSINESS TO THE
ADVANTAGE OF ANOTHER TYPE OF COMPETING BUSINESS WHICH IS LEFT UNTAXED,
...  IT DOES NOT FOLLOW THAT INTERSTATE COMMERCE MAY BE SIMILARLY
AFFECTED BY THE PRACTICAL OPERATION OF A STATE TAXING STATUTE....  IT
IS ENOUGH FOR PRESENT PURPOSES THAT THE RULE OF ROBBINS V. SHELBY
COUNTY TAXING DISTRICT, SUPRA, HAS BEEN NARROWLY LIMITED TO FIXEDSUM
LICENSE TAXES IMPOSED ON THE BUSINESS OF SOLICITING ORDERS FOR THE
PURCHASE OF GOODS TO BE SHIPPED INTERSTATE  ...; AND THAT THE ACTUAL
AND POTENTIAL EFFECT ON THE COMMERCE OF SUCH A TAX IS WHOLLY WANTING IN
THE PRESENT CASE."  309 U.S. AT 56-57.  IN BEST & CO. V. MAXWELL THE
COURT SAID:  "IN MCGOLDRICK V. BERWIND-WHITE CO....  WE POINTED OUT
THAT THE LINE OF DECISIONS FOLLOWING ROBBINS V. SHELBY COUNTY  ...
RESTED ON THE ACTUAL AND POTENTIAL DISCRIMINATION INHERENT IN CERTAIN
FIXED-SUM LICENSE TAXES."  311 U.S. 454, 455, NOTE 3. 

FN6  SEE NOTE 5.  WHETHER OR NOT THE "FIXED SUM" REFERENCE WOULD
APPLY TO A TAX MEASURED IN PART BY GROSS RECEIPTS (CF. THE LANGUAGE OF
THE ORDINANCE IN THIS CASE RELATING TO EARNINGS, ETC., IN EXCESS OF
$1000), THE TAX AS APPLIED HERE PRESUMABLY WOULD NOT INVOLVE THAT
FEATURE, SINCE BY THE EXPLICIT WORDING IT APPLIES ONLY TO EARNINGS,
ETC., "FOR THE PRECEDING LICENSE YEAR" AND THERE IS NO SHOWING RELATING
TO SUCH EARNINGS IN THIS CASE.  SEE ALSO NOTE 7. 

FN7  COUNSEL CITE THE COURT'S STATEMENT MADE IN DIFFERENTIATING ADAMS
MFG. CO. V. STOREN, 304 U.S. 307, "THE RATIONALE OF THE ADAMS
MANUFACTURING CO. CASE DOES NOT CALL FOR CONDEMNATION OF THE PRESENT
TAX.  HERE THE TAX IS CONDITIONED UPON A LOCAL ACTIVITY, DELIVERY OF
GOODS WITHIN THE STATE UPON THEIR PURCHASE FOR CONSUMPTION."  309 U.S.
AT 58.  HOWEVER, THE COURT WENT ON IMMEDIATELY TO SAY, "IT IS AN
ACTIVITY WHICH, APART FROM ITS EFFECT ON THE COMMERCE, IS SUBJECT TO
THE STATE TAXING POWER.  THE EFFECT OF THE TAX, EVEN THOUGH MEASURED BY
THE SALES PRICE (CF. NOTE 6 SUPRA), AS HAS BEEN SHOWN, NEITHER
DISCRIMINATES AGAINST NOR OBSTRUCTS INTERSTATE COMMERCE MORE THAN
NUMEROUS OTHER STATE TAXES WHICH HAVE REPEATEDLY BEEN SUSTAINED AS
INVOLVING NO PROHIBITED REGULATION OF INTERSTATE COMMERCE."  IBID. 

FN8  THE LATEST INSTANCE DECIDED HERE BEING MCLEOD V. DILWORTH CO.,
322 U.S. 327. 

FN9  IT IS OLD DOCTRINE, NOTWITHSTANDING MANY EARLY DEVIATIONS, THAT
THE PRACTICAL OPERATION OF THE TAX, ACTUAL OR POTENTIAL, RATHER THAN
ITS DESCRIPTIVE LABEL OR FORMAL CHARACTER IS DETERMINATIVE.  SEE THE
AUTHORITIES CITED IN NOTE 23.  THE BERWIND-WHITE AND OTHER RECENT
CASES, INCLUDING BEST & CO. V. MAXWELL, 311 U.S. 454, ONLY BRING THAT
DOCTRINE DOWN TO DATE.  CF. LOCKHART, THE SALES TAX IN INTERSTATE
COMMERCE (1939) 52 HARV. L. REV. 617, 621. 

FN10  309 U.S. AT 56, NOTE 11; SEE NOTE 5, SUPRA. 

FN11  SEE NOTE 6. 

FN12  SEE LOCKHART, THE SALES TAX IN INTERSTATE COMMERCE (1939) 52
HARV. L. REV. 617, 621. 

FN13  CF. POSTAL TELEGRAPH-CABLE CO. V. RICHMOND, 249 U.S. 252, 259;
WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 254; MCGOLDRICK
V. BERWIND-WHITE CO., 309 U.S. 33, 46; NELSON V. SEARS, ROEBUCK & CO.,
312 U.S. 359. 

FN14  POSTAL TELEGRAPH-CABLE CO. V. RICHMOND, 249 U.S. 252, 259; NEW
JERSEY BELL TELEPHONE CO. V. STATE BOARD OF TAXES, 280 U.S. 338, 351. 

FN15  WALLING V. MICHIGAN, 116 U.S. 446, 455-458.  THUS, EVEN THE
COMMERCE IN INTOXICATING LIQUORS, OVER WHICH THE TWENTY-FIRST AMENDMENT
GIVES THE STATES THE HIGHEST DEGREE OF CONTROL, IS NOT ALTOGETHER
BEYOND THE REACH OF THE FEDERAL COMMERCE POWER, AT ANY RATE WHEN THE
STATE'S REGULATION SQUARELY CONFLICTS WITH REGULATION IMPOSED BY
CONGRESS GOVERNING INTERSTATE TRADE OR TRAFFIC, UNITED STATES V.
FRANKFORT DISTILLERIES, 324 U.S. 293, WHETHER OR NOT ALSO IN SOME
INSTANCES IN ADDITION TO COMPLETE EXCLUSION FROM PASSING THROUGH THE
STATE, COLLINS V. YOSEMITE PARK CO., 304 U.S. 518, IN THE ABSENCE OF
SUCH CONGRESSIONAL ACTION.  CF. CARTER V. VIRGINIA, 321 U.S. 131, 137;
ZIFFRIN V. REEVES, 308 U.S. 132, 140. 

FN16  CF. WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 256;
BALDWIN V. G.A.F. SEELIG, INC., 294 U.S. 511, 522-523; BEST & CO. V.
MAXWELL, 311 U.S. 454, 455, AND AUTHORITIES CITED IN NOTE 3 THEREIN. 

FN17  SEE, IN ADDITION TO THE INSTANT CASE, DUNSTON V. NORFOLK, 177
VA. 689, 15 S.E.2D 86. 

FN18  THE COURT SAID:  "THE VICE OF THE STATUTE AS APPLIED TO
RECEIPTS FROM INTERSTATE SALES IS THAT THE TAX INCLUDES IN ITS MEASURE,
WITHOUT APPORTIONMENT, RECEIPTS DERIVED FROM ACTIVITIES IN INTERSTATE
COMMERCE; AND THAT THE EXACTION IS OF SUCH A CHARACTER THAT IF LAWFUL
IT MAY IN SUBSTANCE BE LAID TO THE FULLEST EXTENT BY STATES IN WHICH
THE GOODS ARE SOLD AS WELL AS THOSE IN WHICH THEY ARE MANUFACTURED. 
INTERSTATE COMMERCE WOULD THUS BE SUBJECTED TO THE RISK OF A DOUBLE TAX
BURDEN TO WHICH INTRASTATE COMMERCE IS NOT EXPOSED, AND WHICH THE
COMMERCE CLAUSE FORBIDS.  WE HAVE REPEATEDLY HELD THAT SUCH A TAX IS A
REGULATION OF, AND A BURDEN UPON, INTERSTATE COMMERCE PROHIBITED BY
ARTICLE I, SEC. 8 OF THE CONSTITUTION.  THE OPINION OF THE STATE
SUPREME COURT STRESSES THE GENERALITY AND NONDISCRIMINATORY CHARACTER
OF THE EXACTION, BUT IT IS SETTLED THAT THIS WILL NOT SAVE THE TAX IF
IT DIRECTLY BURDENS INTERSTATE COMMERCE."  304 U.S. AT 311-312. 

FN19  IT SHOULD BE NOTED THAT NO QUESTION HAS BEEN RAISED IN THIS
CASE CONCERNING ANY ISSUE OF SO-CALLED "MULTIPLE STATE TAXATION."  CF.
NOTE 7.  BUT IF A NONDISCRIMINATORY STATE TAX MAY BECOME DISCRIMINATORY
OR UNDULY BURDENSOME BY VIRTUE OF THE FACT THAT OTHER STATES ALSO MAY
IMPOSE A SIMILAR TAX BEARING UPON THE TRANSACTION, THE POSSIBILITIES
FOR SUCH MULTIPLICATION WOULD SEEM OBVIOUSLY TO BE MAGNIFIED MANY TIMES
BY THE APPLICATION OF MUNICIPAL TAXES LIKE THAT INVOLVED HERE. 

FN20  THE ESTABLISHED MERCHANT MAINTAINING A LOCAL PLACE OF BUSINESS
WHERE HE DEALS IN A VARIETY OF COMMODITIES, FOR INSTANCE, IS MUCH MORE
FAVORABLY PLACED TO ABSORB THE COST OF THE TAX THAN THE ITINERANT
VENDOR WHO DEALS IN OR TAKES ORDERS FOR A SINGLE SPECIALIZED COMMODITY
OR ONLY A FEW. 

THE RECORD DOES NOT SHOW WHETHER APPELLANT WOULD HAVE BEEN
COMPENSATED BY THE COMPANY FOR WHOM SHE SOLICITS, HAD SHE PAID THE
TAX. 

FN21  THE DISCRIMINATIONS AGAINST SOLICITORS CONSTITUTE ONLY PART OF
THE MORE GENERAL PROBLEM OF INTERSTATE TRADE BARRIERS.  SEE HEARINGS
BEFORE THE TEMPORARY NATIONAL ECONOMIC COMMITTEE, 76TH CONG., 2D SESS.,
PT. 29; MELDER, STATE AND LOCAL BARRIERS TO INTERSTATE COMMERCE IN THE
UNITED STATES (1937).  BUT AS TO THE DIFFERENT TYPES OF STATUTES AND
ORDINANCES DESIGNED TO FAVOR LOCAL BUSINESS AS AGAINST ITINERANT
SOLICITORS AND PEDDLERS AND "GYPSY TRUCKERS," SEE HEARINGS, SUPRA,
15965-15987 AND EXHIBIT NO. 2394(NOT INCLUDED IN THE PRINTED HEARINGS);
GOULD, LEGISLATIVE INTERVENTION IN THE CONFLICT BETWEEN ORTHODOX AND
DIRECT-SELLING DISTRIBUTION CHANNELS (1941) 8 LAW & CONTEMP.  PROB. 
318.  ONE METHOD USED TO DISCOURAGE SOLICITORS HAS BEEN TO REQUIRE
ELABORATE INFORMATION.  IT IS SAID THAT "IN SOME NEW JERSEY CITIES THIS
METHOD HAS REDUCED THE NUMBER OF CANVASSERS BY 35 PER CENT."  18 PUBLIC
MANAGEMENT 83.  AND IN ARIZONA AT ONE TIME AN ITINERANT TRUCKER, WHO
WENT THROUGH ALL THE COUNTIES OF THE STATE, WOULD HAVE BEEN OBLIGED TO
PAY $4,400 IN FEES IN ADDITION TO POSTING A $5,000 BOND.  HEARINGS,
SUPRA, EX. 2353.  IN ADDITION, LICENSING STATUTES, OTHERWISE FAIR ON
THEIR FACE, ARE SAID TO HAVE BEEN DISCRIMINATORILY ENFORCED AGAINST
ITINERANT MERCHANTS.  SEE NOTE (1940) 16 IND. L.J. 247, 251. 

FN22  THE BERWIND-WHITE CASE FURNISHES AN ILLUSTRATION THAT THE
DIFFERENCE BETWEEN MUNICIPAL AND STATE-WIDE TAXES MAY NOT BE
CONTROLLING OR EVEN RELEVANT IN RELATION TO A TAX WHICH, APART FROM THE
POSSIBILITY OF MULTIPLE STATE TAXATION, PRESENTS NEITHER THE
PROHIBITIVE CONSEQUENCES INHERENT IN RICHMOND'S TAX NOR ANY ELEMENT OF
DISCRIMINATION IN FAVOR OF LOCAL BUSINESS.  THE ITINERANT OUT-OF-STATE
MERCHANT COULD PAY THE NEW YORK SALES TAX AND SURVIVE, ACCORDING TO ITS
GENERAL EFFECT, WITHOUT ANY DISADVANTAGE AS COMPARED WITH LOCAL
MERCHANTS, ITINERANT OR ESTABLISHED, RESULTING FROM THE TAX, EXCEPTING
ONLY THE POSSIBILITY OF MULTIPLE STATE TAXATION. 

FN23  CF. GALVESTON, H. & S.A.R. CO. V. TEXAS, 210 U.S. 217, 224,
227; LAWRENCE V. STATE TAX COMMISSION, 286 U.S. 276, 280; SOUTHERN
PACIFIC CO. V. GALLAGHER, 306 U.S. 167, 177; WISCONSIN V. J.C. PENNEY
CO., 311 U.S. 435, 444, 445; NELSON V. SEARS, ROEBUCK & CO., 312 U.S.
359, 363, 366. 

FN24  SINCE APPELLANT WORKS FOR AN OUT-OF-STATE FIRM AND THE RECORD
CONTAINS NOTHING TO SHOW HER PRESENCE IN RICHMOND AT ANY TIME OTHER
THAN DURING THE ONE FIVE-DAY PERIOD, OR ANY INTENTION TO RETURN,
WHETHER PERIODICALLY OR CASUALLY, NO PRESUMPTION CAN ARISE THAT SHE WAS
A RESIDENT OF RICHMOND OR WAS REGULARLY ENGAGED IN SOLICITATION THERE. 
THE PRESUMPTION ON THE FACTS BEFORE US IS THE OTHER WAY. 

MOREOVER, HERE AS IN BEST & CO. V. MAXWELL, 311 U.S. 454, THE "REAL
COMPETITORS" OF PETITIONER ARE, AMONG OTHERS, THE LOCAL RETAIL
MERCHANTS.  THE RICHMOND ORDINANCE, UNLIKE THE NORTH CAROLINA STATUTE,
DOES NOT DISCRIMINATE ON ITS FACE BETWEEN SUCH MERCHANTS AND TRANSIENT
SOLICITORS; NOR DOES IT FIX A LOWER RATE FOR THE FORMER.  BUT THE
OPINION IN THE BEST CASE EXPRESSLY POINTED OUT THAT NOMINALLY THE
STATUTE TREATED LOCAL AND OUT-OF-STATE TRANSIENTS ALIKE.  NEVERTHELESS,
SINCE THE LATTERS' PRINCIPAL COMPETITION OBVIOUSLY CAME FROM "REGULAR
RETAIL MERCHANTS" AND THE TAX BORE "NO RELATION TO ACTUAL OR PROBABLE
SALES," THE COURT FOUND THE NORTH CAROLINA ATMOSPHERE TOO HOSTILE TO
ALLOW SURVIVAL OF INTERSTATE COMMERCE.  THE DISCRIMINATION RESULTING
FROM THE PRESENT APPLICATION OF THE RICHMOND ORDINANCE, AS BETWEEN OUT
OF-STATE SOLICITORS AND REGULAR RETAIL MERCHANTS, IS ONLY LESS
OBVIOUS.  IT IS NOT LESS REAL.  CF. NOTE 5. 

FN25  OBVIOUSLY A TOTAL EXCLUSION OF COMMERCE IS ITSELF THE MOST
EFFECTIVE FORM OF DISCRIMINATION IN FAVOR OF THE LOCAL MERCHANT WHO IS
SO SITUATED THAT HE CAN CONTINUE IN THE BUSINESS. 

FN26  SEE, FOR THE PART PLAYED BY ITINERANTS IN OUR HISTORY, WRIGHT,
HAWKERS AND WALKERS IN EARLY AMERICA (1927).  PEDDLERS WERE
DISCRIMINATED AGAINST IN FAVOR OF TOWN MERCHANTS AS EARLY AS 1700. 
WRIGHT, SUPRA, AT 90. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MURPHY CONCURS,
DISSENTING. 

THE COURT HAS NOT SHARED THE DOUBTS WHICH SOME OF US HAVE HAD
CONCERNING THE PROPRIETY OF THE JUDICIARY ACTING TO NULLIFY STATE
LEGISLATION ON THE GROUND THAT IT BURDENS INTERSTATE COMMERCE.  SEE
SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761, 784, 795, DISSENTING
OPINIONS.  BUT THE POLICY OF THE COURT IS FIRMLY ESTABLISHED TO THE
CONTRARY. 

EVEN IN THAT VIEW, HOWEVER, THIS JUDGMENT SHOULD NOT BE REVERSED. 
THE COURT HAS HELD DRUMMER TAXES UNCONSTITUTIONAL WHERE THEY WERE
DISCRIMINATORY ON THEIR FACE OR WHERE IT APPEARED THAT NECESSARILY OR
IN PRACTICAL OPERATION THEY WORKED TO THE DISADVANTAGE OF INTERSTATE
COMMERCE.  SEE MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, 45-46,
NOTE 2.  BUT THE PRESENT ORDINANCE ON ITS FACE SEEMS TO REFLECT NO MORE
THAN A BONA FIDE EFFORT TO MAKE INTERSTATE COMMERCE PAY ITS WAY. 
WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 254.  IT TREATS
A SOLICITOR FOR A VIRGINIA MANUFACTURER EXACTLY THE SAME AS IT TREATS
SOLICITORS FOR MANUFACTURERS LOCATED IN OTHER STATES.  UNDER THIS TYPE
OF TAX, THE SOLICITOR FOR A VIRGINIA MANUFACTURER PAYS AS MUCH AS
NIPPERT, WHETHER HE CONFINES HIMSELF TO ONE LOCALITY OR WORKS HIS WAY
THROUGH THE STATE. 

IN THAT VIEW A GRANT OF IMMUNITY TO NIPPERT IS THE GRANT OF A
PREFERENCE TO INTERSTATE COMMERCE. 

THE PROBLEM, HOWEVER, DOES NOT END THERE.  BEST & CO. V. MAXWELL, 311
U.S. 454.  IN THAT CASE, A NORTH CAROLINA TAX ON THOSE WHO DISPLAYED
GOODS IN ANY HOTEL ROOM OR TEMPORARY OFFICE IN ORDER TO OBTAIN RETAIL
ORDERS WAS APPLICABLE TO SOLICITORS REPRESENTING LOCAL AS WELL AS OUT
OF-STATE DISTRIBUTORS.  WE HELD THAT THAT PARITY OF TREATMENT DID NOT
SAVE THE TAX.  WE SAID THAT THE TAX MUST BE COMPARED WITH THE TAX ON
THE LOCAL RETAIL MERCHANTS - THE "REAL COMPETITORS" OF THE OUT-OF-STATE
SOLICITOR.  FINDING THAT THE TAX ON THE LOCAL RETAIL MERCHANTS WAS
LIGHTER, WE HELD THAT THE TAX DISCRIMINATED AGAINST THE OUT-OF-STATE
SOLICITOR AND WAS THEREFORE INVALID. 

IN THE PRESENT CASE THE TAX ON NIPPERT MAY OR MAY NOT, IN PRACTICAL
OPERATION, WORK TO THE DISADVANTAGE OF THIS INTERSTATE BUSINESS.  IT
WOULD BE ONE THING IF NIPPERT'S BUSINESS TOOK HER FROM TOWN TO TOWN
THROUGHOUT THE STATE.  BUT, SO FAR AS WE KNOW, NIPPERT MAY BE A
RESIDENT OF RICHMOND WORKING EXCLUSIVELY THERE, FULL OR PART TIME.  IN
THAT EVENT, WE COULD NOT DETERMINE THE ISSUE OF DISCRIMINATION WITHOUT
KNOWING WHAT TAXES THE RETAIL MERCHANTS IN RICHMOND MUST PAY.  IF THE
FACTS WERE KNOWN, IT MIGHT APPEAR THAT THE TAX, NOW STRUCK DOWN, IN
FACT RESULTED IN PARITY OF TREATMENT BETWEEN NIPPERT AND HER LOCAL
COMPETITORS.  THE RECORD DOES NOT ENLIGHTEN US ON ANY OF THESE
MATTERS.    I THINK THAT ONE WHO COMPLAINS THAT A STATE TAX, THOUGH NOT
DISCRIMINATORY ON ITS FACE, DISCRIMINATES AGAINST INTERSTATE COMMERCE
IN ITS ACTUAL OPERATION SHOULD BE REQUIRED TO COME FORWARD WITH PROOF
TO SUSTAIN THE CHARGE.  SEE SOUTHERN RAILWAY CO. V. KING, 217 U.S. 524,
534-537.  THIS DOES NOT, OF COURSE, REQUIRE PROOF OF THE OBVIOUS.  BUT,
AS MR. JUSTICE BRANDEIS POINTED OUT, CASES OF THIS TYPE SHOULD NOT BE
DECIDED ON THE BASIS OF SPECULATION; THE SPECIAL FACTS AND
CIRCUMSTANCES WILL OFTEN BE DECISIVE.  HAMMOND V. SCHAPPI BUS LINE, 275
U.S. 164, 170-172.  WITHOUT EVIDENCE AND FINDINGS WE FREQUENTLY CAN
HAVE NO "SURE BASIS" FOR THE INFORMED JUDGMENT THAT IS NECESSARY FOR
DECISION.  TERMINAL RAILROAD ASSN. V. BROTHERHOOD OF TRAINMEN, 318 U.S.
1, 8.  THAT SEEMS TO ME TO BE THE CASE HERE.  PROOF SHOULD BE REQUIRED
TO OVERCOME THE PRESUMPTIVE VALIDITY OF THIS LOCAL LEGISLATION AS
APPLIED TO NIPPERT. 
..END :



U.S. V. AMERICAN UNION TRANSPORT, 327 U.S. 437 


NO. 44.  ARGUED OCTOBER 11, 1945.  - DECIDED FEBRUARY 25, 1946.  -
REVERSED. 


1.  A FORWARDER OF FREIGHT FOR TRANSSHIPMENT BY COMMON CARRIERS BY
WATER IN FOREIGN COMMERCE, ALTHOUGH NOT CONTRACTUALLY OR CORPORATELY
AFFILIATED WITH A COMMON CARRIER BY WATER, HELD TO BE "CARRYING ON THE
BUSINESS OF FORWARDING  ...  IN CONNECTION WITH A COMMON CARRIER BY
WATER," HENCE AN "OTHER PERSON SUBJECT TO THIS ACT" WITHIN THE MEANING
OF SEC. 1 OF THE SHIPPING ACT OF 1916, AND THEREFORE SUBJECT TO THE
REGULATORY PROVISIONS OF THAT ACT.  PP. 441, 443. 

2.  THE CONCLUSION THAT INDEPENDENT FORWARDERS ARE SUBJECT TO THE
ACT'S REGULATORY PROVISIONS IS SUPPORTED BY THE BROAD TERMS OF ITS
DEFINITION OF "OTHER PERSON SUBJECT TO THIS ACT"; BY THE POLICY
IMPLICIT IN THE SCHEME OF REGULATION; BY THE LEGISLATIVE HISTORY; AND
BY THE DECISION IN CALIFORNIA V. UNITED STATES, 320 U.S. 577.  P. 443. 

3.  A DIFFERENT CONCLUSION IS NOT REQUIRED BY THE FACT THAT THE
ADMINISTRATIVE AGENCIES HAD NOT PREVIOUSLY EXERCISED JURISDICTION OVER
SUCH FORWARDERS; NOR BY THE HISTORY OF INTERSTATE COMMERCE LEGISLATION
AFFECTING NON-WATER TRANSPORTATION; NOR BY JUDICIAL DECISIONS RELATING
TO THAT LEGISLATION.  PP. 454-455. 

4.  THE FACT THAT NO QUESTION IS INVOLVED OF THE USE OF FORWARDERS BY
CARRIERS TO EVADE REGULATION GIVES NO BASIS FOR RELIEVING INDEPENDENT
FORWARDERS FROM THE ACT'S PROVISIONS.  P. 456. 

5. THE WISDOM OF REGULATING FORWARDERS - WITH THE CORRESPONDING
RESTRICTION OF COMPETITIVE FREEDOM IN THE BUSINESS - IS A QUESTION FOR
CONGRESS, NOT THE COURTS.  P. 457. 

UNITED STATES V. AMERICAN UNION TRANSPORT, INC. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, ENJOINING
ENFORCEMENT OF AN ORDER OF THE MARITIME COMMISSION.  SEE 55 F.SUPP. 
682.  REVERSED, P. 457. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES APPEALS FROM A DECREE ENTERED BY A DISTRICT COURT
OF THREE JUDGES PERMANENTLY ENJOINING ENFORCEMENT OF AN ORDER OF THE
UNITED STATES MARITIME COMMISSION.  THE ORDER REQUIRED THE APPELLEES
AND OTHERS TO ANSWER WITHIN THIRTY DAYS A QUESTIONNAIRE CONCERNING
CERTAIN ASPECTS OF THEIR BUSINESS TRANSACTED DURING 1940, 1941 AND
1942.  FN1  THE CENTRAL ISSUE IS WHETHER APPELLEES ARE WITHIN THE
COVERAGE OF THE SHIPPING ACT, 46 U.S.C. SEC. 801, FOR THIS PURPOSE. 

ON AUGUST 21, 1942, THE COMMISSION, UPON ITS OWN MOTION, ORDERED AN
INVESTIGATION CONCERNING THE LAWFULNESS OF THE RULES, REGULATIONS,
PRACTICES AND OPERATIONS OF NAMED PERSONS AND FIRMS, DESCRIBED AS
CARRYING ON "THE BUSINESS OF FORWARDING IN FOREIGN COMMERCE  ..."  THE
ORDER STATED THAT FROM INFORMATION BEFORE THE COMMISSION IT APPEARED
THAT A CERTAIN FORWARDING FIRM WAS ENGAGING IN PRACTICES WHICH SEEMED
TO BE IN VIOLATION OF SEC. 17 OF THE SHIPPING ACT, 46 U.S.C. SEC. 816,
AND FURTHER "THAT THE PUBLIC INTEREST REQUIRES A GENERAL INQUIRY TO
DETERMINE THE EXTENT OF THE EXISTENCE OF THE SAID PRACTICES AMONG ALL
OTHER FORWARDERS IN THE PORT OF NEW YORK SUBJECT TO SAID ACT, AND THE
LAWFULNESS OF SAID PRACTICES UNDER SECTION 17 THEREOF  ..." 

ACCORDINGLY, THE COMMISSION SENT TO THE PERSONS AND FIRMS NAMED A
QUESTIONNAIRE CONTAINING THE INQUIRY, AMONG OTHERS, "DO YOU CARRY ON
THE BUSINESS OF FORWARDING IN CONNECTION WITH COMMON CARRIERS BY WATER
IN FOREIGN COMMERCE?"  FN2  EACH OF THE APPELLEES ANSWERED THIS IN THE
AFFIRMATIVE.  FN3  BUT NEGATIVE ANSWERS WERE GIVEN TO THE QUESTION, "IS
YOUR COMPANY OWNED OR CONTROLLED BY OR AFFILIATED WITH ANY SHIPPERS FOR
WHOM YOU ACT AS FORWARDER OR WITH ANY COMMON CARRIER?" 

IN DECEMBER, 1942, THE COMMISSION HELD PUBLIC HEARINGS BEFORE A TRIAL
EXAMINER PURSUANT TO THE INVESTIGATION ORDER.  ON THE SECOND DAY THE
HEARINGS WERE ADJOURNED SINE DIE SO THAT THE COMMISSION MIGHT OBTAIN
ADDITIONAL INFORMATION.  THEY HAVE NOT BEEN RESUMED. 

ON JANUARY 14, 1943, THE COMMISSION ENTERED AN ORDER, PURSUANT TO
SEC. 21 OF THE SHIPPING ACT, 46 U.S.C. SEC. 820, DIRECTING APPELLEES
AND OTHERS TO ANSWER A QUESTIONNAIRE RELATING TO THEIR FORWARDING
OPERATIONS IN 1940, 1941 AND 1942.  THE ANSWERS WERE TO BE FILED WITHIN
THIRTY DAYS.  BEFORE THIS PERIOD EXPIRED APPELLEES INSTITUTED THIS SUIT
TO ENJOIN THE CARRYING OUT OF THAT ORDER AND THE GENERAL ORDER OF
INVESTIGATION.  THEREAFTER THE COMMISSION EXTENDED THE TIME FOR
ANSWERING THE QUESTIONNAIRE, AND ON MAY 18, 1943, WITHDREW ITS ORDER OF
JANUARY 14, ISSUING INSTEAD ANOTHER UNDER SEC. 21.  THIS ORDER, LIKE
THE EARLIER ONE, REQUIRED THE APPELLEES TO ANSWER A QUESTIONNAIRE
CONCERNING THEIR FORWARDING OPERATIONS.  THE ONLY DIFFERENCE,
APPARENTLY, WAS THAT THE INFORMATION SOUGHT WAS SOMEWHAT MORE
EXTENSIVE.  THE PARTIES AGREED THAT THE SUIT SHOULD BE CONTINUED AS
AGAINST THE ORDER OF MAY 18 WITHOUT FORMAL AMENDMENT OF THE COMPLAINT. 

ON NOVEMBER 30, 1943, THE DISTRICT COURT DENIED THE COMMISSION'S
MOTION FOR SUMMARY JUDGMENT AND GRANTED A TEMPORARY INJUNCTION
RESTRAINING EXECUTION OF THE MAY 18, 1943, ORDER.  THE INJUNCTION WAS
MADE PERMANENT ON NOVEMBER 30, 1944.  FN4  THE COURT HELD THAT THE
MARITIME COMMISSION HAD NO JURISDICTION OVER THE APPELLEES SINCE, IN
ITS VIEW, THEY DID NOT COME WITHIN THE DEFINITION OF THE TERM "OTHER
PERSON SUBJECT TO THIS ACT" GIVEN IN SEC. 1 OF THE STATUTE, 46 U.S.C.
SEC. 801.  IT REFUSED, HOWEVER, TO ENJOIN THE ORDER OF AUGUST 21, 1942,
ON THE GROUND THAT IT HAD NO JURISDICTION TO ANNUL AN ORDER WHICH
ITSELF DID NOT ADVERSELY AFFECT THE COMPLAINING PARTIES. 

THE QUESTION WE ARE TO REVIEW IS WHETHER THE APPELLEES ARE INCLUDED
WITHIN THE DESIGNATION "OTHER PERSON SUBJECT TO THIS ACT" AS THAT
PHRASE IS DEFINED IN SEC. 1 OF THE SHIPPING ACT.  THE DEFINITION READS:
"THE TERM 'OTHER PERSON SUBJECT TO THIS ACT' MEANS ANY PERSON NOT
INCLUDED IN THE TERM 'COMMON CARRIER BY WATER,' CARRYING ON THE
BUSINESS OF FORWARDING OR FURNISHING WHARFAGE, DOCK, WAREHOUSE, OR
OTHER TERMINAL FACILITIES IN CONNECTION WITH A COMMON CARRIER BY
WATER." 

SUBSTANTIALLY, THE ISSUE TURNS UPON THE MEANING OF "IN CONNECTION
WITH," THAT IS, WHETHER SOME RELATION OF AFFILIATION WITH THE CARRIER
IS REQUIRED, SUCH AS THAT EXEMPLIFIED IN RAILROAD RETIREMENT BOARD V.
DUQUESNE WAREHOUSE CO., 326 U.S. 446; OR, ON THE OTHER HAND, THE
STATUTORY PHRASING IS SATISFIED BY THE TYPE OF RELATIONSHIP ILLUSTRATED
BY THE COMPANION CASES OF CALIFORNIA V. UNITED STATES AND OAKLAND V.
UNITED STATES, 320 U.S. 577.  FN5 

IF, AS APPELLEES CONTEND, "IN CONNECTION WITH" COVERS ONLY FORWARDING
BUSINESSES ACTUALLY AFFILIATED WITH A COMMON CARRIER BY WATER IN A
CORPORATE SENSE, OR UNDER THE CONTROL OF OR PURSUANT TO A CONTINUING
CONTRACT WITH SUCH A CARRIER, THEN PLAINLY THE MARITIME COMMISSION IS
WITHOUT JURISDICTION OVER THESE APPELLEES, SINCE NONE OF THEM IS
CONTROLLED BY OR AFFILIATED WITH A COMMON CARRIER BY WATER IN ANY SUCH
MANNER.  ALL ARE SO-CALLED INDEPENDENT FORWARDERS AND THE CASE COMES
DOWN TO WHETHER SUCH FORWARDERS ARE COVERED BY THE ACT. 

THERE IS LITTLE OR NO DISPUTE AS TO THE NATURE OF THEIR BUSINESS. 
THEY ARE PRIMARILY FORWARDERS OF FREIGHT, AS THAT TERM IS GENERALLY
UNDERSTOOD,  FN6  FOR TRANSSHIPMENT IN FOREIGN COMMERCE.  THE FOREIGN
FREIGHT FORWARDING BUSINESS IS A MEDIUM USED BY ALMOST ALL EXPORT
SHIPPERS.  AN EXPORTER, INTENDING TO SEND GOODS ABROAD, CONSIGNS THE
MERCHANDISE TO A FORWARDER WHO THEN MAKES ALL THE ARRANGEMENTS FOR
DISPATCHING IT TO A FOREIGN PORT.  THE FORWARDER MUST ARRANGE FOR
NECESSARY SPACE WITH THE STEAMSHIP COMPANIES, PROCURE AND PREPARE THE
MANY DOCUMENTS, OBTAIN PERMITS FOR THE ACCEPTANCE OF FREIGHT AT PIERS,
AND AT TIMES MUST FIND AVAILABLE STORAGE SPACE FOR THE SHIPMENT UNTIL
STEAMERS ARE AVAILABLE.  IF REQUESTED TO DO SO, A FORWARDER WILL SECURE
WHATEVER INSURANCE IS NEEDED. 

FORWARDERS ALSO HAVE MANY OTHER INCIDENTAL DUTIES.  THEY CHECK THE
MARKS ON SHIPPING PAPERS AND CONTAINERS IN ORDER TO BE CERTAIN THAT
THEY ARE IN ACCORDANCE WITH THE REGULATIONS OF THE COUNTRY OF
DESTINATION.  THEY CONVERT WEIGHTS AND MEASUREMENTS INTO THE METRIC
SYSTEM WHEN NECESSARY.  THEY KEEP RECORDS, FOR THE CONVENIENCE OF THE
EXPORTER, OF ALL SHIPMENTS DISPATCHED.  THEY ALSO PROSECUTE SUCH CLAIMS
AS MAY BE REQUIRED BY THE EXPORTER AGAINST CARRIERS, INSURANCE
COMPANIES, AND ANY OTHER PARTIES IN INTEREST. 

BY ENGAGING IN THESE MANY ACTIVITIES OF THE FORWARDING BUSINESS,
INDEPENDENT FORWARDERS - AND PARTICULARLY THE APPELLEES - ACT AS AGENTS
OF THE SHIPPER.  THEY ASSUME NO RESPONSIBILITY FOR THE TRANSPORTATION
OF GOODS. 

WE THINK THE APPELLEES ARE WITHIN THE COVERAGE OF SEC. 1.  THIS
CONCLUSION IS REQUIRED NOT ONLY BY THE BROAD AND LITERAL WORDING OF THE
DEFINITION BUT ALSO TO MAKE EFFECTIVE THE SCHEME OF REGULATION THE
STATUTE ESTABLISHED AND BY CONSIDERATIONS OF POLICY IMPLICIT IN THAT
SCHEME, AS WELL AS BY THE LEGISLATIVE HISTORY AND THE DECISION IN THE
CALIFORNIA AND OAKLAND CASES, SUPRA. IN ORDER TO PLACE THE DISCUSSION
OF OUR REASONS IN STATUTORY AS WELL AS FACTUAL SETTING, WE SKETCH BELOW
SOME OF THE MORE PERTINENT STATUTORY PROVISIONS.  IN DOING SO WE SHALL
EMPHASIZE THE CONSEQUENCES OF INCLUDING OR EXCLUDING SO-CALLED
INDEPENDENT FORWARDERS, LIKE THE APPELLEES, FOR EFFECTIVE
ADMINISTRATION OF THE ACT AND ACHIEVEMENT OF ITS POLICY.  BUT FIRST WE
TURN TO THE DEFINITION IN SEC. 1 ITSELF. 

THE LANGUAGE IS BROAD AND GENERAL.  NO INTENT IS SUGGESTED TO
CLASSIFY FORWARDERS, COVERING SOME BUT NOT OTHERS, JUST AS NONE APPEARS
TO DIVIDE PERSONS "FURNISHING WHARFAGE, DOCK, WAREHOUSE, OR OTHER
TERMINAL FACILITIES" INTO REGULATED AND UNREGULATED GROUPS.  CALIFORNIA
V. UNITED STATES; OAKLAND V. UNITED STATES, SUPRA.  THE ABSENCE OF ANY
SUCH SUGGESTION BECOMES HIGHLY SIGNIFICANT BY CONTRAST WITH SIMILAR
DEFINITIONS OF OTHER STATUTES MORE OR LESS RELATED TO THE SHIPPING
ACT.  IN THESE CONGRESS, WHEN REGULATING CARRIERS AND "OTHER PERSONS,"
REPEATEDLY HAS MADE PLAIN THE INTENT TO COVER ONLY AFFILIATES OR OTHER
SPECIALLY LIMITED GROUPS WHEN THIS HAS BEEN IN FACT ITS PURPOSE. 

THUS, IN THE LEGISLATION RELATING TO RAILROADS, FORWARDERS WERE FIRST
COVERED EXPRESSLY IN 1942.  49 U.S.C. (SUPP. V) SEC. 1002(A)(5).  THE
DEFINITION IN SHORTENED PARAPHRASE IS LIMITED TO ANY "PERSON," OTHER
THAN A CARRIER, HOLDING ITSELF OUT "TO TRANSPORT OR PROVIDE
TRANSPORTATION" WHICH "IN THE ORDINARY AND USUAL COURSE OF ITS
UNDERTAKING" (A) PERFORMS THE USUAL FUNCTIONS OF A FORWARDER, "AND (B)
ASSUMES RESPONSIBILITY FOR THE TRANSPORTATION OF SUCH PROPERTY FROM
POINT OF RECEIPT TO POINT OF DESTINATION, AND (C) UTILIZES, FOR THE
WHOLE OR ANY PART OF THE TRANSPORTATION OF SUCH SHIPMENTS, THE SERVICES
OF A CARRIER OR CARRIERS  ..."  NOT ONLY WOULD LANGUAGE SO EXPLICITLY
LIMITED BE DIFFICULT TO APPLY TO A PERSON NOT PERFORMING ANY PART OF
THE "TRANSPORTATION SERVICE" PROPER, CF. LEHIGH VALLEY R. CO. V. UNITED
STATES, 243 U.S. 444; BUT THE VERY LIMITATIONS, ALTOGETHER ABSENT FROM
SEC. 1 OF THE SHIPPING ACT, FORBID IDENTICAL CONSTRUCTIONS OF THE TWO
DEFINITIONS.  SEE ALSO, IN RELATION TO THE DIFFERENT TREATMENT OF RAIL
FORWARDERS, THE CORRELATED DEFINITION OF "SERVICE SUBJECT TO THIS
CHAPTER."  49 U.S.C. (SUPP. V) SEC. 1002(A)(7). 

THE SAME DIFFERENCE APPLIES WITH REFERENCE TO THE DEFINITIONS OF THE
TERM "EMPLOYER" IN THE RAILROAD RETIREMENT ACT OF 1937, 45 U.S.C. SEC.
288A, AND THE RAILROAD UNEMPLOYMENT INSURANCE ACT OF 1938, 45 U.S.C.
SEC. 351, CONSTRUED IN RAILROAD RETIREMENT BOARD V. DUQUESNE WAREHOUSE
CO., SUPRA.  IN EACH INSTANCE THE STATUTE DECLARES THAT "EMPLOYER"
SHALL MEAN "ANY CARRIER  ...  AND ANY COMPANY" CARRIER-OWNED OR
CONTROLLED "AND WHICH OPERATES ANY EQUIPMENT OR FACILITY OR PERFORMS
ANY SERVICE  ...  IN CONNECTION WITH THE TRANSPORTATION OF PASSENGERS
OR PROPERTY  ...," THUS PLAINLY SETTING FORTH AS TO OTHERS COVERED THAN
THE CARRIER BOTH THE AFFILIATION REQUIREMENT AND THAT OF PERFORMING
PART OF THE TRANSPORTATION SERVICE. 

IN THE FACE OF SUCH REPEATED DEMONSTRATIONS THAT CONGRESS MAKES ITS
PURPOSE PLAIN, WHEN IT ACTUALLY INTENDS TO LIMIT THE COVERAGE OF OTHERS
THAN CARRIERS TO AFFILIATES OR TO PERSONS PERFORMING PART OF THE
TRANSPORTATION SERVICE, THE CONCLUSION HARDLY IS TENABLE THAT IT MEANS
THE SAME THING WHEN IT EMPLOYS MORE BROADLY INCLUSIVE LANGUAGE AND
WHOLLY OMITS ALL SUCH LIMITATIONS.  THIS VIEW IS FURTHER EMPHASIZED, AS
WILL APPEAR, BY THE FACT THAT TO CUT DOWN THE MEANING OF SEC. 1 AS
APPELLEES SUGGEST WOULD BE TO SINGLE OUT THE TERM "FORWARDING" FROM ALL
OTHERS IN THE DEFINITION AND GIVE TO IT A NARROW APPLICATION NONE OF
THEM POSSESSES. 

IN VIEW OF THESE FACTS, IT IS DOUBTFUL THAT THE WORDING OF THE
DEFINITION IS SUFFICIENTLY AMBIGUOUS TO REQUIRE CONSTRUCTION, MORE
ESPECIALLY IN VIEW OF THE DECISIONS IN THE CALIFORNIA AND OAKLAND
CASES.  BUT IF ROOM FOR DOUBT REMAINS, IT IS ALTOGETHER REMOVED BY THE
CONSIDERATIONS OF POLICY AND HISTORY TO WHICH WE HAVE REFERRED.  WE
TURN ACCORDINGLY TO THE STATUTORY SETTING. 

IN SEVERAL SECTIONS, FOR EXAMPLE, SECS. 15, 16, 17, 20 AND
21(PURSUANT TO WHICH THIS PROCEEDING BEGAN), "OTHER PERSONS" AS WELL AS
COMMON CARRIERS BY WATER EITHER ARE MADE SUBJECT TO AFFIRMATIVE DUTIES
OR ARE PROHIBITED FROM ENGAGING IN CERTAIN ACTIVITIES. 

WITH THE COMMISSION AND EXEMPTS FROM THE OPERATION OF THE ANTITRUST
LAWS ARRANGEMENTS MADE BY CARRIERS AND "OTHER PERSONS" AMONG THEMSELVES
OR WITH ONE ANOTHER WHICH HAVE BEEN FILED WITH AND APPROVED BY THE
COMMISSION.  FN8  THE COMMISSION IS GIVEN THE POWER TO DISAPPROVE,
CANCEL OR MODIFY, AMONG OTHERS, ANY AGREEMENT WHICH IT FINDS TO BE
UNJUSTLY DISCRIMINATORY OR UNFAIR AS BETWEEN CARRIERS, SHIPPERS,
EXPORTERS, IMPORTERS OR PORTS, OR BETWEEN UNITED STATES EXPORTERS AND
THEIR FOREIGN COMPETITORS; OR TO OPERATE TO THE DETRIMENT OF THE
COMMERCE OF THE UNITED STATES; OR TO BE IN VIOLATION OF THE ACT. 
OBVIOUSLY AGREEMENTS OR UNDERSTANDINGS BETWEEN FORWARDERS OR BETWEEN
FORWARDERS AND SHIPPERS OR BETWEEN FORWARDERS AND CARRIERS MAY BE
DISCRIMINATORY IN SUCH A WAY AS TO VIOLATE THE PROVISIONS OF SEC. 15. 
MOREOVER, SINCE FORWARDERS ARRANGE THE TERMS OF CARRIAGE FOR SHIPPERS
WITH CARRIERS, THEY MAY BE THE ACTIVE AGENTS WHO BRING ABOUT THE VERY
TYPES OF AGREEMENT OR ARRANGEMENT THE SECTION CONTEMPLATES THE
COMMISSION SHALL HAVE POWER AND OPPORTUNITY TO OUTLAW.  CONSEQUENTLY
JURISDICTION BY THE COMMISSION OVER FORWARDERS WOULD SEEM ESSENTIAL TO
EFFECTUATE THE POLICY OF THE ACT AND THE ABSENCE OF JURISDICTION WELL
MIGHT PREVENT GIVING FULL EFFECT TO THAT POLICY. 

OTHER PRACTICES, ON THE PART OF ANY COMMON CARRIER BY WATER "OR OTHER
PERSON," WHICH AN INDEPENDENT FORWARDER READILY MAY COMMIT OR INDUCE. 
IT IS SUGGESTED, HOWEVER, THAT WHATEVER DISCRIMINATIONS MIGHT BE
PRACTICED NECESSARILY WOULD BE IN PURSUANCE OF AN AGREEMENT BETWEEN A
CARRIER AND A FORWARDER WHO, IT IS WELL TO POINT OUT AGAIN, ACTS AS
AGENT OF THE SHIPPER; AND THAT SINCE CONGRESS HAS GIVEN THE COMMISSION
JURISDICTION OVER THE CARRIERS, IT IS TO BE PRESUMED THAT SUCH
JURISDICTION WAS THOUGHT TO BE SUFFICIENT.    WHETHER OR NOT THE
PREMISE IS CORRECT, THE CONCLUSION DOES NOT FOLLOW.  THAT THE
COMMISSION MAY HAVE JURISDICTION OVER ONE OF THE TWO PARTIES TO A
DISCRIMINATORY AGREEMENT OR ARRANGEMENT HARDLY MEANS THAT IT SHALL NOT
HAVE JURISDICTION OVER BOTH.  INDEED, UNLESS THE JURISDICTION INCLUDES
BOTH, IT MAY BE INEFFECTIVE AS TO THE ONE COVERED; FOR THE COMMISSION
THEN MIGHT LACK THE NECESSARY MEANS OF OBTAINING OR CHECKING UPON
INFORMATION (CF. SEC. 21) NECESSARY TO ASCERTAIN THE EXISTENCE OF A
DISCRIMINATION OR TO TAKE OTHER ACTION COMMANDED BY THE STATUTE. 
MOREOVER, SOME OF THE PRACTICES FORBIDDEN APPEAR TO BE PECULIARLY IF
NOT EXCLUSIVELY SUSCEPTIBLE OF COMMISSION OR INDUCEMENT BY FORWARDERS,
BROKERS AND SHIPPERS' AGENTS, ALL SPECIFICALLY MENTIONED IN THE

THE PURPOSE OF SEC. 17,  FN10  IN RELEVANT PART, IS TO PROVIDE FOR
THE ESTABLISHMENT, OBSERVANCE AND ENFORCEMENT OF JUST AND REASONABLE
REGULATIONS AND PRACTICES RELATING TO OR IN CONNECTION WITH THE
RECEIVING, HANDLING, STORING OR DELIVERING OF PROPERTY.  BY THE NATURE
OF THEIR BUSINESS, INDEPENDENT FORWARDERS ARE INTIMATELY CONNECTED WITH
THESE VARIOUS ACTIVITIES.  HERE AGAIN, UNLESS THE COMMISSION HAS
JURISDICTION OVER THEM, IT MAY NOT BE ABLE EFFECTIVELY TO CARRY OUT THE
POLICY OF THE ACT. 

15(11) OF THE INTERSTATE COMMERCE ACT, FORBIDS THE DISCLOSURE OF
CONFIDENTIAL INFORMATION BY A COMMON CARRIER BY WATER OR OTHER PERSON,
FN12  WHEN THE INFORMATION MIGHT BE USED TO THE DETRIMENT OR PREJUDICE
OF A SHIPPER OR CONSIGNEE, OR OF A CARRIER, OR MIGHT IMPROPERLY
DISCLOSE HIS BUSINESS TRANSACTIONS TO A COMPETITOR. 

FINALLY, SEC. 21, WHICH IS IMMEDIATELY INVOLVED IN THIS CASE,
REQUIRES THE FILING OF REPORTS, RECORDS AND DOCUMENTS RELATING TO THE
BUSINESS OF PERSONS SUBJECT TO THE ACT. 

THE INTIMATE RELATIONSHIP OF THE FORWARDER TO BOTH SHIPPER AND
CARRIER, ESSENTIALLY THAT OF GO-BETWEEN, GIVES HIM NOT ONLY UNIQUE
SOURCES OF INFORMATION, PERHAPS IN ITS TOTALITY AVAILABLE TO NO ONE
ELSE, BUT ALSO UNIQUE OPPORTUNITY TO ENGAGE IN PRACTICES WHICH THE ACT
CONTEMPLATES SHALL BE SUBJECT TO REGULATION, SOME OF WHICH WE HAVE
EMPHASIZED IN QUOTING THE STATUTORY PROVISIONS.  THE STATUTE THROUGHOUT
IS DRAWN IN VERY BROAD TERMS.  IT FORBIDS DIRECT OR INDIRECT
ACCOMPLISHMENT OF THE OUTLAWED ACTS.  IT BROADLY COVERS SPECIFIC
PRACTICES, INCLUDING FALSE BILLING, CLASSIFICATION, WEIGHING, AND THE
MANNER OF PLACING INSURANCE, SEC. 16, AS WELL AS GENERAL PRACTICES
RESULTING IN FORBIDDEN EVILS, SECS. 15, 17, WHICH FORWARDERS,
AFFILIATED OR INDEPENDENT, ARE FAVORABLY PLACED TO BRING ABOUT.  IT
MENTIONS FORWARDERS SPECIFICALLY, NOT ONLY IN SEC. 1, BUT ELSEWHERE,
E.G., SEC. 16, WITHOUT SUGGESTION OF DISTINCTION BETWEEN TWEEN
INDEPENDENT AND AFFILIATED OPERATORS.  TO INCLUDE THE LATTER BUT
EXCLUDE THE FORMER WOULD BE INCONGRUOUS, NOT ONLY FOR WANT OF ANY SUCH
EXPLICIT SUGGESTION, BUT BECAUSE INCLUSION OF ONE WITHOUT THE OTHER
WOULD CREATE A STATUTORY DISCRIMINATION TENDING IN TIME TO FORCE OUT
THE AFFILIATED FORWARDER AND, WITH THAT ACHIEVED, TO REMOVE FORWARDING
ENTIRELY FROM THE REACH OF THE REGULATORY PLAN.  WE DO NOT BELIEVE THAT
CONGRESS HAD IN MIND SUCH A SELF-DEFEATING SCHEME.  ALMOST AS WELL
MIGHT IT HAVE EXEMPTED ALL FORWARDERS IN THE FIRST PLACE.  NOR DO WE
THINK THE DESIGN OF THE ACT WAS MERELY BY INDIRECTION TO FORBID
CARRIERS OR THEIR AFFILIATES TO ACT AS FORWARDERS. 

THE LEGISLATIVE HISTORY CLEARLY SUPPORTS THIS VIEW, ALTHOUGH FOR
EXPLICIT STATEMENT IT IS SCANTY.  NO DISCUSSION CONCERNING THE MEANING
OF "ANY PERSON (NOT A CARRIER) CARRYING ON THE BUSINESS OF FORWARDING
...  IN CONNECTION WITH A COMMON CARRIER BY WATER" APPEARS EXCEPT IN
THE STATEMENT OF THE MANAGER OF THE BILL IN THE HOUSE OF
REPRESENTATIVES.  FN13  WHEN DEALING WITH THE BREADTH OF THE TERM
"OTHER PERSON SUBJECT TO THIS ACT," HE SAID:  "HENCE, IF THIS BOARD
(THE UNITED STATES SHIPPING BOARD) EFFECTUALLY REGULATES WATER
CARRIERS, IT MUST ALSO HAVE SUPERVISION OF ALL THOSE INCIDENTAL
FACILITIES CONNECTED WITH THE MAIN CARRIERS  ..."  53 CONG. REC. 8276. 
CERTAINLY THIS LANGUAGE IS NOT INDICATIVE OF INTENT TO GIVE A NARROWLY
RESTRICTED SCOPE TO THE DEFINITION'S COVERAGE.  QUITE THE OPPOSITE IS
ITS EFFECT. 

THE MORE SIGNIFICANT LEGISLATIVE HISTORY, HOWEVER, APPEARS IN THE
METAMORPHOSIS WHICH THIS PROVISION OF SEC. 1 UNDERWENT DURING THE
PROCESS OF ENACTMENT.  A PREDECESSOR BILL (H.R. 14337, 64TH CONG.)
WORDED THE DEFINITION AS FOLLOWS: 

"THE TERM 'OTHER PERSON SUBJECT TO THIS ACT' MEANS ANY PERSON NOT
INCLUDED IN THE TERM 'COMMON CARRIER BY WATER' AND CARRYING ON THE
BUSINESS OF FORWARDING, FERRYING, TOWING, OR FURNISHING TRANSFER,
LIGHTERAGE, DOCK, WAREHOUSE, OR OTHER TERMINAL FACILITIES IN OR IN
CONNECTION WITH THE FOREIGN OR INTERSTATE COMMERCE OF THE UNITED
STATES." 

AS THIS WAS REVISED IN THE BILL WHICH WAS ENACTED (H.R. 15455, 64TH
CONG.), TWO CHANGES OCCURRED, APART FROM ADDING EXPLICIT MENTION OF
WHARFAGE AS AMONG THE TERMINAL SERVICES.  ONE WAS TO ELIMINATE THE
WORDS "FERRYING, TOWING  ...  TRANSFER, LIGHTERAGE."  THE OTHER WAS TO
SUBSTITUTE "IN CONNECTION WITH A COMMON CARRIER BY WATER" FOR "IN OR IN
CONNECTION WITH THE FOREIGN OR INTERSTATE COMMERCE OF THE UNITED
STATES." 

HAD THIS LATTER WORDING BEEN RETAINED THERE COULD NOT HAVE BEEN THE
REMOTEST BASIS FOR SUGGESTING THAT INDEPENDENT FORWARDERS WERE NOT
COVERED, AS THERE COULD HAVE BEEN NONE WITH REFERENCE TO ANY OF THE
OTHER BUSINESSES OR SERVICES MENTIONED.  BUT, FOR A REASON WHOLLY
UNRELATED TO NARROWING THE CLASS OF FORWARDERS AND OTHERS NOT CARRIERS
WHO HAD BEEN INCLUDED, THE ORIGINAL CONCLUDING PHRASEOLOGY WAS
CHANGED.  THAT LANGUAGE WAS OBVIOUSLY INEXACT WHEN APPLIED, AS THE
SHIPPING ACT DID APPLY, TO CARRIAGE BY WATER AND INCIDENTAL
ACTIVITIES.  TAKEN LITERALLY, THE BROAD WORDING WOULD HAVE INCLUDED
FORWARDERS AND OTHERS FURNISHING TERMINAL FACILITIES IN CONNECTION WITH
SHIPMENTS BY RAIL.  OBVIOUSLY IT WAS TO ELIMINATE THIS INCONGRUITY, AND
NOT TO CONSTRICT THE CLASSES OF "OTHER PERSONS" PREVIOUSLY ENUMERATED,
THAT THIS CHANGE WAS MADE. 

THAT IT HAD NO OTHER PURPOSE APPEARS, MOREOVER, FROM THE ELIMINATION
OF "FERRYING, TOWING  ... TRANSFER, LIGHTERAGE," WHICH SHOWS THAT WHEN
CONGRESS WISHED TO CUT DOWN THE CLASSES ORIGINALLY COVERED IT DID SO
ATTENTIVELY AND EXPLICITLY.  THESE ELIMINATED PERSONS WERE INCLUDED
ORIGINALLY, ALONG WITH FORWARDERS AND OTHERS, NOT SIMPLY TO REACH
AFFILIATES OF CARRIERS, BUT BROADLY TO PROVIDE "FOR EQUAL TREATMENT TO
ALL SHIPPERS AND WATER CARRIERS BY TRANSFER AND LIGHTERAGE CONCERNS
WHEN FORMING A LINK IN INTERSTATE OR FOREIGN COMMERCE."  FN14  NOTHING
IN THE HEARINGS, THE COMMITTEE REPORTS, OR THE DEBATES, UPON THE
ORIGINAL OR THE SUBSTITUTED BILLS,  FN15  SUGGESTS EITHER AN ORIGINAL
INTENTION TO RESTRICT TO CARRIER AFFILIATES THE COVERAGE OF FORWARDERS
OR OTHER FURNISHERS OF TERMINAL OR "LINK" SERVICE OR A LATER INTENTION
TO CHANGE THE INITIAL BROAD COVERAGE BY SO RESTRICTING IT.  SILENCE SO
COMPLETE CANNOT BE TAKEN AS THE VOICE OF CHANGE.  THE ORIGINAL
CONGRESSIONAL PURPOSE CLEARLY WAS TO REACH ALL WHO CARRY ON THE
SPECIFIED ACTIVITIES, WHETHER IN OR OUT OF AFFILIATION WITH A CARRIER. 
THAT PURPOSE REMAINED UNALTERED BY ANYTHING WHICH TOOK PLACE IN THE
COURSE OF TRANSITION FROM THE FIRST TO THE FINAL FORM IN WHICH THE BILL
WAS ENACTED. 

INDEED, WE HELD AS MUCH IN THE CASES OF CALIFORNIA V. UNITED STATES
AND OAKLAND V. UNITED STATES, SUPRA.  THE DECISION WAS THAT THE
COMMISSION HAS JURISDICTION OVER STATE AND MUNICIPALLY OWNED BUSINESSES
FURNISHING TERMINAL FACILITIES.  THE RULING WOULD INCLUDE A FORTIORI
PRIVATELY OWNED INDEPENDENT BUSINESSES OF THE SAME TYPE.  IT WOULD BE A
STRANGE READING OF THE "OTHER PERSON" PROVISION IF FORWARDERS ALONE
WERE REQUIRED TO BE AFFILIATED IN ORDER TO COME WITHIN ITS TERMS, ALL
OTHERS COVERED IN BOTH THE ORIGINAL AND THE FINAL FORMS OF THE
LEGISLATIVE PROPOSALS BEING EITHER INDEPENDENT OR AFFILIATED.  YET THIS
IS, IN EFFECT, APPELLEES' EXACT CONTENTION AND THE VIEW TAKEN BY THE
DISTRICT COURT.  AS HAS BEEN NOTED,  FN16  THAT COURT MISCONCEIVED THE
FACTS IN THE OAKLAND CASE AND THUS PERHAPS, AT THE TIME OF ENTRY OF ITS
FINAL ORDER, THE FULL SCOPE AND EFFECT OF OUR DECISION.  FN17  AT ANY
RATE, SINCE CONGRESS HAS INDICATED NO INTENTION TO SINGLE OUT
FORWARDERS FOR REGULATION ONLY WHEN THEY ARE AFFILIATED WITH A CARRIER,
WHILE AT THE SAME TIME BROADLY COVERING TERMINAL OPERATORS AND OTHERS,
WE ARE NOT FREE TO INJECT SUCH A DISTINCTION. 

WHAT HAS BEEN SAID DISPOSES OF THE PRINCIPAL CONTENTIONS AND ISSUES. 
APPELLEES HOWEVER OFFER OTHER ARGUMENTS, FOUNDED CHIEFLY IN THE ABSENCE
OF PRIOR ESTABLISHED ADMINISTRATIVE PRACTICE, FN18  BUT ALSO IN THE
HISTORY OF INTERSTATE COMMERCE LEGISLATION AFFECTING NONWATER
TRANSPORTATION AND IN DECISIONS RELATING TO THAT LEGISLATION N19.  WE
REGARD THESE CONSIDERATIONS AS INAPPOSITE TO THE PROBLEM RAISED BY THIS
CASE IN CONNECTION WITH THE QUITE DIFFERENT WORDING, COVERAGE, HISTORY
AND, TO SOME EXTENT, POLICY OF THE SHIPPING ACT, FOR REASONS ALREADY
SET FORTH IN PART AND FOR OTHERS BRIEFLY INDICATED IN THE MARGINAL
NOTES ATTACHED TO THIS PARAGRAPH.  FN20 

IT REMAINS ONLY TO NOTICE THE FURTHER OBJECTIONS THAT THE CASE DOES
NOT INVOLVE THE USE OF FORWARDERS BY CARRIERS TO EVADE REGULATIONS
APPLICABLE TO CARRIERS; AND THAT TO HOLD INDEPENDENT FORWARDERS
"SUBJECT TO THIS ACT" WILL BRING THEM UNDER ITS REGULATORY PROVISIONS,
IN OTHER WORDS, WILL MAKE THEM "SUBJECT TO THIS ACT." 

NEEDLESS TO REPEAT, IT IS PRECISELY BECAUSE WE THINK THE LATTER
EFFECT IS REQUIRED BY THE CONSIDERATIONS ALREADY SET FORTH THAT OUR
CONCLUSION HAS BEEN REACHED.  MOREOVER, SUPPORT FOR IT IS GIVEN BY THE
VERY TERMS OF THE SPECIFIC REGULATORY PROVISIONS CITED TO CONTRADICT
IT, AS WE HAVE POINTED OUT.  FN21  THE GROUND NEED NOT BE TRAVERSED
AGAIN.  THE CITED PROVISIONS, LIKE SEC. 1, ARE BROAD AND GENERAL.  THEY
STRIKE AT EVILS AS LIKELY TO BE PERPETRATED BY INDEPENDENT FORWARDERS
AS BY ANY OF THE "OTHER PERSONS" ADMITTEDLY COVERED BY THE ACT.  THEY
AFFORD NO SUGGESTION OF APPLICATION NARROWED TO AFFILIATED FORWARDERS
OR OF OTHER DISTINCTION BETWEEN THEM AND INDEPENDENT FORWARDERS, SUCH
AS INVARIABLY AND IN THE CLEAREST TERMS CONGRESS HAS STATED WHENEVER IT
HAS DEALT WITH FORWARDERS BY LAND. 

THE COMMON SENSE OF ALL THIS, OF COURSE, IS THAT CONGRESS KNEW WHAT
IT WAS ABOUT IN BOTH INSTANCES.  WE CANNOT IGNORE ITS REPEATED
DEMONSTRATIONS OF THAT FACT.  TO DO SO WOULD BE TO REWRITE THE STATUTE,
INJECTING LIMITATIONS OF AFFILIATION NO MORE RIGHTFULLY WITHIN OUR
FUNCTION THAN INSERTING OTHERS OF PHYSICAL PARTICIPATION IN THE
TRANSPORTATION SERVICE PROPER OR OF FINANCIAL RESPONSIBILITY FOR IT.
THESE ADMITTEDLY CANNOT GO IN, ALTHOUGH THERE WOULD BE AS MUCH WARRANT
FOR ADDING THEM AS FOR PUTTING IN AFFILIATION. 

STATUTES MAY BE EMASCULATED AS READILY AND AS MUCH BY UNAUTHORIZED
RESTRICTED READING AS BY ONE UNDULY EXPANSIVE.  AND THE WISDOM OF THE
REGULATION OF FORWARDERS WITH THE CORRESPONDING RESTRICTION OF
COMPETITIVE FREEDOM IN THE BUSINESS IS THE CONCERN OF CONGRESS, NOT OF
THIS COURT.  WE LEAVE THE STATUTE AS CONGRESS ENACTED IT. 

IT IS INHERENT IN THE VIEW WE TAKE OF THE STATUTE THAT MORE IS
INVOLVED THAN MERELY A CARRIER'S ATTEMPT TO IMMUNIZE ITSELF AGAINST THE
ACT'S PENALTIES BY USING A FORWARDER TO EVADE THE REGULATIONS MADE
BINDING ON CARRIERS.  IN THAT RESPECT FORWARDERS ARE OBVIOUSLY NO
DIFFERENT FROM OTHER PERSONS, FOR THE ACT DOES NOT PERMIT SUCH EVASION
BY A CARRIER WHETHER THROUGH THE USE OF FORWARDERS OR ANY OTHER
PERSONS.  WHAT IS MORE IMPORTANT IS THAT THE ACT IS DESIGNED AND IN
TERMS UNDERTAKES NOT ONLY TO PREVENT SUCH EVASION BY CARRIERS THROUGH
DENYING THEM IMMUNITY WHEN THEY HIDE BEHIND FORWARDERS; IT ALSO DENIES
IMMUNITY TO THE FORWARDERS THEMSELVES WHEN THEY COMMIT THE ACTS OR
PRACTICES CARRIERS AND OTHERS SUBJECT TO THE ACT ARE FORBIDDEN TO
PERFORM. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

FN1  SEE NOTE 4.  JURISDICTION RESTS ON SEC. 31 OF THE SHIPPING ACT,
46 U.S.C. SEC. 830; 28 U.S.C. SECS. 47, 47A; 28 U.S.C. SEC. 345(4). 
SEE CALIFORNIA V. UNITED STATES, 320 U.S. 577, 579. 

FN2  THE INQUIRY WAS FRAMED WITH REFERENCE TO THE STATUTORY PROVISION
IMMEDIATELY IN ISSUE, NAMELY, THE DEFINITION OF "OTHER PERSON SUBJECT
TO THIS ACT" CONTAINED IN SEC. 1 OF THE SHIPPING ACT, 46 U.S.C. SEC.
801, SET FORTH HEREINAFTER IN THE TEXT. 

FN3  IN THEIR COMPLAINT THE APPELLEES ALLEGE THAT THE AFFIRMATIVE
ANSWERS GIVEN WERE ERRONEOUS AND WERE MADE "WITHOUT KNOWLEDGE OF THE
IMPORT OF THE SAID QUESTION OR OF THE KIND OR NATURE OF THE BUSINESS
WHICH IT WAS NECESSARY TO CARRY ON, OR THE CHARACTER OF RELATIONSHIP
WITH A COMMON CARRIER BY WATER IN FOREIGN COMMERCE, WHICH IT WAS
NECESSARY TO MAINTAIN, IN ORDER TO FALL WITHIN THE SAID DEFINITION
..." 

FN4  THE OPINION OF THE DISTRICT COURT ON MOTION FOR INTERLOCUTORY
INJUNCTION AND ON MOTION FOR REARGUMENT IS REPORTED IN 55 F.SUPP. 
682.  THE OPINION ON FINAL JUDGMENT, WHICH WAS SIMPLY AN ADHERENCE TO
THE COURT'S PREVIOUS OPINION, IS NOT REPORTED. 

FN5  THE AGENCIES FOUND SUBJECT TO THE ACT IN THESE CASES WERE PUBLIC
AUTHORITIES.  ALTHOUGH SOME CONTINUING CONTRACTUAL RELATIONSHIP MAY
HAVE EXISTED BETWEEN THE STATE WHARFINGER AND THE CARRIERS IN THE
CALIFORNIA CASE, NO SUCH RELATION EXISTED, EXCEPT AS TO ONE PIER, IN
THE OAKLAND CASE, A FACT OF WHICH THE DISTRICT COURT IN THIS CASE
OBVIOUSLY WAS NOT INFORMED, IN VIEW OF ITS CONTRARY STATEMENT.  SEE
NOTE 17.    FN6  SEE PLACE V. UNION EXPRESS CO., 2 HILT.  (N.Y.)  19,
25; IN RE EMERSON, MARLOW & CO., 199 F. 95, 97; H. REP. NO. 1682, 77TH
CONG., 2D SESS., 5 ET SEQ. CF. THE DEFINITION OF "FREIGHT FORWARDER" IN
PART IV OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. (SUPP. V) SEC.
1002(A)(5), DISCUSSED AT A LATER POINT IN THIS OPINION. 

IN ADDITION TO ACTING AS FREIGHT FORWARDERS, THE APPELLEES ALSO ACT
AS FREIGHT BROKERS.  AND FOR THEIR SERVICES AS BROKERS THEY RECEIVE
BROKERAGE COMMISSIONS OR FEES FROM THE CARRIER WITH RESPECT TO THE SAME
SHIPMENTS FOR WHICH THEY ACT AS FORWARDERS. 

IN VIEW OF THE DISPOSITION WE MAKE OF THE CAUSE, WE NEED NOT CONSIDER
THE ARGUMENT MADE BY THE GOVERNMENT THAT IN ANY CASE THE APPELLEES,
BECAUSE THEY ALSO ACT AS FREIGHT BROKERS AND RECEIVE COMPENSATION FROM
THE CARRIERS, COME WITHIN THE MARITIME COMMISSION'S JURISDICTION.  CF.
IN RE GULF BROKERAGE AND FORWARDING AGREEMENTS, 1 U.S.M.C. 533, 534,
WHERE IT WAS SAID:  "BROKERS ARE NOT SUBJECT TO THE SHIPPING ACT, 1916,
AND CONSEQUENTLY AGREEMENTS BETWEEN CARRIERS SUBJECT TO THAT ACT AND
BROKERS ARE NOT OF THE CHARACTER REQUIRED TO BE FILED UNDER SECTION 15
THEREOF." 

FN7  "EVERY COMMON CARRIER BY WATER, OR OTHER PERSON SUBJECT TO THIS
ACT, SHALL FILE IMMEDIATELY WITH THE BOARD (COMMISSION) A TRUE COPY,
OR, IF ORAL, A TRUE AND COMPLETE MEMORANDUM, OF EVERY AGREEMENT WITH
ANOTHER SUCH CARRIER OR OTHER PERSON SUBJECT TO THIS ACT, OR
MODIFICATION OR CANCELLATION THEREOF, TO WHICH IT MAY BE A PARTY OR
CONFORM IN WHOLE OR IN PART, FIXING OR REGULATING TRANSPORTATION RATES
OR FARES; GIVING OR RECEIVING SPECIAL RATES, ACCOMMODATIONS, OR OTHER
SPECIAL PRIVILEGES OR ADVANTAGES; CONTROLLING, REGULATING, PREVENTING,
OR DESTROYING COMPETITION; POOLING OR APPORTIONING EARNINGS, LOSSES, OR
TRAFFIC; ALLOTTING PORTS OR RESTRICTING OR OTHERWISE REGULATING THE
NUMBER AND CHARACTER OF SAILINGS BETWEEN PORTS; LIMITING OR REGULATING
IN ANY WAY THE VOLUME OR CHARACTER OF FREIGHT OR PASSENGER TRAFFIC TO
BE CARRIED; OR IN ANY MANNER PROVIDING FOR AN EXCLUSIVE, PREFERENTIAL,
OR COOPERATIVE WORKING ARRANGEMENT.  THE TERM 'AGREEMENT' IN THIS

"THE BOARD (COMMISSION) MAY BY ORDER DISAPPROVE, CANCEL, OR MODIFY
ANY AGREEMENT, OR ANY MODIFICATION OR CANCELLATION THEREOF, WHETHER OR
NOT PREVIOUSLY APPROVED BY IT, THAT IT FINDS TO BE UNJUSTLY
DISCRIMINATORY OR UNFAIR AS BETWEEN CARRIERS, SHIPPERS, EXPORTERS,
IMPORTERS, OR PORTS, OR BETWEEN EXPORTERS FROM THE UNITED STATES AND
THEIR FOREIGN COMPETITORS, OR TO OPERATE TO THE DETRIMENT OF THE
COMMERCE OF THE UNITED STATES, OR TO BE IN VIOLATION OF THIS ACT, AND
SHALL APPROVE ALL OTHER AGREEMENTS, MODIFICATIONS, OR CANCELLATIONS. 

"AGREEMENTS EXISTING AT THE TIME OF THE ORGANIZATION OF THE BOARD
(COMMISSION) SHALL BE LAWFUL UNTIL DISAPPROVED BY THE BOARD
(COMMISSION).  IT SHALL BE UNLAWFUL TO CARRY OUT ANY AGREEMENT OR ANY
PORTION THEREOF DISAPPROVED BY THE BOARD (COMMISSION). 

"ALL AGREEMENTS, MODIFICATIONS, OR CANCELLATIONS MADE AFTER THE
ORGANIZATION OF THE BOARD (COMMISSION) SHALL BE LAWFUL ONLY WHEN AND AS
LONG AS APPROVED BY THE BOARD (COMMISSION), AND BEFORE APPROVAL OR
AFTER DISAPPROVAL IT SHALL BE UNLAWFUL TO CARRY OUT IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, ANY SUCH AGREEMENT, MODIFICATION, OR
CANCELLATION. 

"EVERY AGREEMENT, MODIFICATION, OR CANCELLATION LAWFUL UNDER THIS
SECOND, EIGHTEEN HUNDRED AND NINETY, ENTITLED 'AN ACT TO PROTECT TRADE
AND COMMERCE AGAINST UNLAWFUL RESTRAINTS AND MONOPOLIES,' AND
AMENDMENTS AND ACTS SUPPLEMENTARY THERETO, AND THE PROVISIONS OF
APPROVED AUGUST TWENTY-SEVENTH, EIGHTEEN HUNDRED AND NINETY-FOUR,
ENTITLED 'AN ACT TO REDUCE TAXATION, TO PROVIDE REVENUE FOR THE
GOVERNMENT, AND FOR OTHER PURPOSES,' AND AMENDMENTS AND ACTS
SUPPLEMENTARY THERETO. 

"WHOEVER VIOLATES ANY PROVISION OF THIS SECTION SHALL BE LIABLE TO A
PENALTY OF $1,000 FOR EACH DAY SUCH VIOLATION CONTINUES, TO BE
RECOVERED BY THE UNITED STATES IN A CIVIL ACTION."  39 STAT. 733; 46
U.S.C. SEC. 814. 

FN8  SEE THE LANGUAGE OF THE STATUTE, NOTE 7 SUPRA; AND SEE CURRENT
LEGISLATION, 17 COL. L. REV. 357, 358.  IT SHOULD NOT BE NECESSARY TO
EMPHASIZE, IN VIEW OF THE STATUTE'S PLAIN LANGUAGE, THAT, AS IS
INDICATED, THE EXEMPTION ARISES NOT UPON THE MERE FILING OF THE
AGREEMENT, BUT ONLY AFTER APPROVAL BY THE COMMISSION. 

FN9  "THAT IT SHALL BE UNLAWFUL FOR ANY SHIPPER, CONSIGNOR,
CONSIGNEE, FORWARDER, BROKER, OR OTHER PERSON, OR ANY OFFICER, AGENT,
OR EMPLOYEE THEREOF, KNOWINGLY AND WILLFULLY, DIRECTLY OR INDIRECTLY,
BY MEANS OF FALSE BILLING, FALSE CLASSIFICATION, FALSE WEIGHING, FALSE
REPORT OF WEIGHT, OR BY ANY OTHER UNJUST OR UNFAIR DEVICE OR MEANS TO
OBTAIN OR ATTEMPT TO OBTAIN TRANSPORTATION BY WATER FOR PROPERTY AT
LESS THAN THE RATES OR CHARGES WHICH WOULD OTHERWISE BE APPLICABLE. 

"THAT IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY WATER, OR OTHER
PERSON SUBJECT TO THIS ACT, EITHER ALONE OR IN CONJUNCTION WITH ANY
OTHER PERSON, DIRECTLY OR INDIRECTLY - 

"FIRST.  TO MAKE OR GIVE ANY UNDUE OR UNREASONABLE PREFERENCE OR
ADVANTAGE TO ANY PARTICULAR PERSON, LOCALITY, OR DESCRIPTION OF TRAFFIC
IN ANY RESPECT WHATSOEVER, OR TO SUBJECT ANY PARTICULAR PERSON,
LOCALITY, OR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER. 

"SECOND.  TO ALLOW ANY PERSON TO OBTAIN TRANSPORTATION FOR PROPERTY
AT LESS THAN THE REGULAR RATES OR CHARGES THEN ESTABLISHED AND ENFORCED
ON THE LINE OF SUCH CARRIER BY MEANS OF FALSE BILLING, FALSE
CLASSIFICATION, FALSE WEIGHING, FALSE REPORT OF WEIGHT, OR BY ANY OTHER
UNJUST OR UNFAIR DEVICE OR MEANS. 

"THIRD.  TO INDUCE, PERSUADE, OR OTHERWISE INFLUENCE ANY MARINE
INSURANCE COMPANY OR UNDERWRITER, OR AGENT THEREOF, NOT TO GIVE A
COMPETING CARRIER BY WATER AS FAVORABLE A RATE OF INSURANCE ON VESSEL
OR CARGO, HAVING DUE REGARD TO THE CLASS OF VESSEL OR CARGO, AS IS
GRANTED TO SUCH CARRIER OR OTHER PERSON SUBJECT TO THIS ACT. 

"WHOEVER VIOLATES ANY PROVISION OF THIS SECTION SHALL BE GUILTY OF A
MISDEMEANOR PUNISHABLE BY A FINE OF NOT MORE THAN $5,000 FOR EACH
OFFENSE."  39 STAT. 734, AS AMENDED BY 49 STAT. 1518; 46 U.S.C. SEC.
815. 

FN10  "...  EVERY SUCH CARRIER AND EVERY OTHER PERSON SUBJECT TO THIS
ACT SHALL ESTABLISH, OBSERVE, AND ENFORCE JUST AND REASONABLE
REGULATIONS AND PRACTICES RELATING TO OR CONNECTED WITH THE RECEIVING,
HANDLING, STORING, OR DELIVERING OF PROPERTY.  WHENEVER THE BOARD
(COMMISSION) FINDS THAT ANY SUCH REGULATION OR PRACTICE IS UNJUST OR
UNREASONABLE IT MAY DETERMINE, PRESCRIBE, AND ORDER ENFORCED A JUST AND
REASONABLE REGULATION OR PRACTICE."  39 STAT. 734; 46 U.S.C. SEC. 816. 

FN11  "THAT IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY WATER OR
OTHER PERSON SUBJECT TO THIS ACT, OR ANY OFFICER, RECEIVER, TRUSTEE,
LESSEE, AGENT, OR EMPLOYEE OF SUCH CARRIER OR PERSON, OR FOR ANY OTHER
PERSON AUTHORIZED BY SUCH CARRIER OR PERSON TO RECEIVE INFORMATION,
KNOWINGLY TO DISCLOSE TO OR PERMIT TO BE ACQUIRED BY ANY PERSON OTHER
THAN THE SHIPPER OR CONSIGNEE, WITHOUT THE CONSENT OF SUCH SHIPPER OR
CONSIGNEE, ANY INFORMATION CONCERNING THE NATURE, KIND, QUANTITY,
DESTINATION, CONSIGNEE, OR ROUTING OF ANY PROPERTY TENDERED OR
DELIVERED TO SUCH COMMON CARRIER OR OTHER PERSON SUBJECT TO THIS ACT
FOR TRANSPORTATION IN INTERSTATE OR FOREIGN COMMERCE, WHICH INFORMATION
MAY BE USED TO THE DETRIMENT OR PREJUDICE OF SUCH SHIPPER OR CONSIGNEE,
OR WHICH MAY IMPROPERLY DISCLOSE HIS BUSINESS TRANSACTIONS TO A
COMPETITOR, OR WHICH MAY BE USED TO THE DETRIMENT OR PREJUDICE OF ANY
CARRIER; AND IT SHALL ALSO BE UNLAWFUL FOR ANY PERSON TO SOLICIT OR
KNOWINGLY RECEIVE ANY SUCH INFORMATION WHICH MAY BE SO USED."  39 STAT.
735; 46 U.S.C. SEC. 819.  EXCEPTIONS ARE MADE FOR DISCLOSURE IN
RESPONSE TO LEGAL PROCESS, ETC. 

FN12  SECTION 15(11) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
15(11), DOES NOT CONTAIN THE "OTHER PERSON" PROVISION.  THE COVERAGE OF
THE TWO SECTIONS, HOWEVER, IS SO BROAD THAT IT PROBABLY WOULD INCLUDE
FORWARDERS EVEN THOUGH THEY WERE NOT WITHIN THE COVERAGE OF OTHER

FN13  REPRESENTATIVE ALEXANDER, THEN CHAIRMAN OF THE COMMITTEE ON THE
MERCHANT MARINE AND FISHERIES. 

FN14  H. REP. NO. 659, 64TH CONG., 1ST SESS., 32.  IT IS TRUE THAT NO
COMPARABLE EXPLICIT STATEMENT APPEARS CONCERNING FORWARDING OR TERMINAL
ACTIVITIES.  BUT IN THE ABSENCE OF DISTINGUISHING LANGUAGE, THE
ORIGINAL COVERAGE OF "FERRYING, TOWING  ...  TRANSFER, LIGHTERAGE"
HARDLY CAN BE TAKEN TO HAVE BEEN BROADER, AS RESPECTS AFFILIATION, THAN
"FORWARDING OR FURNISHING WHARFAGE, DOCK, WAREHOUSE, OR OTHER TERMINAL
FACILITIES  ..."; AND THE ELIMINATION OF THE FORMER CANNOT BE SAID TO
HAVE RESTRICTED THE LATTER IN THIS RESPECT OR, IN VIEW OF THE DECISION
IN THE CALIFORNIA AND OAKLAND CASES, TO HAVE SINGLED OUT FORWARDING
ALONE FOR SUCH RESTRICTION. 

FN15  HEARINGS ON H.R. 14337 BEFORE THE HOUSE COMMITTEE ON THE
MERCHANT MARINE AND FISHERIES, 64TH CONG., 1ST SESS.; HEARINGS ON H.R.
15455 BEFORE THE SENATE SUBCOMMITTEE ON COMMERCE, 64TH CONG., 1ST
SESS.; H. REP. NO. 659, 64TH CONG., 1ST SESS.; S. REP. NO. 689, 64TH
CONG., 1ST SESS. 

FN16  SEE NOTE 5. 

FN17  THE DISTRICT COURT'S OPINION, 55 F.SUPP.  682, WAS FILED
NOVEMBER 30, 1943, AND REFERS TO THE CALIFORNIA CASE, BUT IT MAKES NO
REFERENCE TO THE OAKLAND CASE, ALTHOUGH BOTH WERE THEN PENDING HERE. 
THE COURT'S FURTHER OPINION, FILED MARCH 8, 1944, UPON THE MOTION FOR
REARGUMENT, MAKES NO REFERENCE TO EITHER OF THESE CASES.  THE FINDINGS
OF FACT AND CONCLUSIONS OF LAW WERE FILED NOVEMBER 30, 1944, AND
JUDGMENT WAS ENTERED THE SAME DAY, NEARLY ELEVEN MONTHS AFTER OUR
DECISION IN THE CALIFORNIA AND OAKLAND CASES HAD BEEN ANNOUNCED ON
JANUARY 3, 1944.  AS HAS BEEN STATED, SEE NOTE 5, IN THE OAKLAND CASE,
EXCEPT IN ONE INSTANCE, THERE WAS NO SHOWING OF AFFILIATION WITH A
CARRIER, WHETHER BY CONTINUING AGREEMENT OR OTHERWISE. 

FN18  IT IS POINTED OUT THAT UNTIL THE PRESENT PROCEEDING NEITHER THE
UNITED STATES MARITIME COMMISSION NOR ITS PREDECESSOR, THE UNITED
STATES SHIPPING BOARD, ATTEMPTED TO EXERCISE JURISDICTION OVER
FORWARDERS SUCH AS THE APPELLEES.  SEE, HOWEVER, FIFTH ANNUAL REPORT OF
THE UNITED STATES SHIPPING BOARD, P. 75; SEVENTEENTH ANNUAL REPORT OF
THE UNITED STATES SHIPPING BOARD, P. 10.  IT IS NOT TO BE INFERRED
HOWEVER THAT EITHER OF THOSE BODIES HELD THE VIEW THAT THEY WERE
WITHOUT SUCH JURISDICTION OR THAT, IF EITHER DID, THAT FACT WOULD BE
CONCLUSIVE.  AN ADMINISTRATIVE AGENCY IS NOT ORDINARILY UNDER AN
OBLIGATION IMMEDIATELY TO TEST THE LIMITS OF ITS JURISDICTION.  IT MAY
AWAIT AN APPROPRIATE OPPORTUNITY OR CLEAR NEED FOR DOING SO.  IT MAY
ALSO BE MISTAKEN AS TO THE SCOPE OF ITS AUTHORITY.  CF. SOCIAL SECURITY
BOARD V. NIEROTKO, 327 U.S. 358. 

ALTHOUGH FAILURE TO EXERCISE POWER MAY BE SIGNIFICANT AS A FACTOR
SHEDDING LIGHT ON WHETHER IT HAS BEEN CONFERRED, SEE FEDERAL TRADE
COMMISSION V. BUNTE BROS., 312 U.S. 349, THAT FACT ALONE NEITHER
EXTINGUISHES POWER GRANTED NOR ESTABLISHES THAT THE AGENCY TO WHICH IT
IS GIVEN REGARDS ITSELF AS IMPOTENT.  THE PRESENT CASE, BY VIRTUE OF
DIFFERENCES FROM THAT OF BUNTE BROS. RELATING TO THE CLARITY AND
DEFINITENESS OF THE STATUTE'S TERMS, THE POLICY OF THE ACT, AND THE
LEGISLATIVE HISTORY, IS ONE WHICH FALLS WITHIN THE PRONOUNCEMENT:
"AUTHORITY ACTUALLY GRANTED BY CONGRESS OF COURSE CANNOT EVAPORATE
THROUGH LACK OF ADMINISTRATIVE EXERCISE."  312 U.S. AT 352. 

FN19  APPELLEES STRONGLY URGE THAT THIS CASE IS GOVERNED BY THE
CONSTRUCTION OF THE PHRASE "IN CONNECTION WITH TRANSPORTATION" IN THE
INTERSTATE COMMERCE ACT, CITED AND DISCUSSED IN THE TEXT ABOVE (SEE
LEHIGH VALLEY R. CO. V. UNITED STATES, 243 U.S. 444), AND FOR THIS VIEW
RELY UPON UNITED STATES NAVIGATION CO. V. CUNARD S.S. CO., 284 U.S.
474, 481, WHICH HELD THAT THE SHIPPING ACT AND THE INTERSTATE COMMERCE
ACT, "EACH IN ITS OWN FIELD, SHOULD HAVE LIKE INTERPRETATION,
APPLICATION AND EFFECT."  AS WE HAVE STATED, THE PHRASE "CONNECTED WITH
TRANSPORTATION," IN THE ENTIRELY DIFFERENT SETTING OF THE INTERSTATE
COMMERCE ACT, IS SO DISSIMILAR IN TERMS AND SETTING TO THE PHRASE "IN
CONNECTION WITH A COMMON CARRIER BY WATER" AS USED IN THE SHIPPING ACT
THAT THE INTERPRETATION OF THE FORMER CANNOT BE CONTROLLING IN
DETERMINING THE MEANING OF THE LATTER. 

FN20  APPELLEES' CONTENTIONS THAT THERE WAS NO EVIDENCE TO SUPPORT A
FINDING BY THE COMMISSION THAT THEY WERE ENGAGED IN THE BUSINESS OF
FORWARDING "IN CONNECTION WITH" A COMMON CARRIER BY WATER AND THAT THE
DISTRICT COURT ERRONEOUSLY REFUSED TO SET ASIDE THE ORDER OF AUGUST 21,
1942, ARE FOUNDED IN THEIR VIEW THAT THE ACT REQUIRES AFFILIATION.  FOR
THIS AND OTHER REASONS IT IS NOT NECESSARY TO CONSIDER THEM FURTHER. 

FN21  SEE NOTES 7, 9, 10, AND DISCUSSION IN THE TEXT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER DISSENTING, WITH WHOM MR. JUSTICE BLACK AND
MR. JUSTICE DOUGLAS CONCUR. 

IT IS IMPORTANT TO KEEP IN MIND WHAT THIS CASE IS NOT.  IT DOES NOT
INVOLVE THE POWER OF THE MARITIME COMMISSION TO OBTAIN FROM A FORWARDER
ALL INFORMATION RELEVANT TO ANY INQUIRY BY THE COMMISSION, BASED ON
COMPLAINTS OF VIOLATIONS OF THE SHIPPING ACT OR ON ITS OWN MOTION. 
SUBJECTS EVERY PERSON, FORWARDER OR NOT, TO TESTIMONIAL COMPULSION.  39
STAT. 728, 737, 46 U.S.C. SEC. 826.  NOR DOES THE CASE INVOLVE THE
ATTEMPT OF A CARRIER TO USE A FORWARDER AS A MEANS OF EVADING THE
REGULATIONS BY WHICH WATER CARRIERS ARE CONTROLLED.  BY NO SUCH
INDIRECTION CAN A CARRIER IMMUNIZE ITSELF AGAINST THE ACT'S PENALTIES. 
COMPARE LEHIGH VALLEY R. CO. V. UNITED STATES, 243 U.S. 444.    THE
CASE IS THIS.  THE BUSINESS OF THESE APPELLEES IS TO NEGOTIATE ON
BEHALF OF SHIPPERS FOR SHIPPING SPACE AND TO MAKE THE NECESSARY
ADMINISTRATIVE ARRANGEMENTS FOR THE CARRIAGE OF GOODS.  THEY HAVE NO
PART IN THE PHYSICAL PROCESS OF MOVING GOODS.  THEY HAVE NO CORPORATE,
PHYSICAL, OR FINANCIAL TIE WITH THE CARRIERS.  THE SOLE QUESTION HERE
IS WHETHER SUCH BUSINESS HAS BEEN BROUGHT UNDER THE REGULATORY SCHEME
OF THE ACT.  THE COMMISSION CONTENDS THAT THEY ARE "PERSONS SUBJECT TO
THE ACT."  IF THE COMMISSION IS CORRECT, THESE FORWARDERS WOULD HAVE TO
SUBMIT ALL SORTS OF AGREEMENTS WITH CARRIERS AND WITH OTHER FORWARDERS
TO THE COMMISSION FOR APPROVAL (39 STAT. 733, 46 U.S.C. SEC. 814),
WHEREUPON SUCH AGREEMENTS MAY BE FREED FROM THE RESTRICTIONS OF THE
SHERMAN LAW; THEY WOULD BE REQUIRED TO MAINTAIN UNIFORM RATES (39 STAT.
734, 46 U.S.C. SEC. 815); THEY WOULD BE SUBJECT TO THE COMMISSION'S
SUPERVISION INSOFAR AS THEIR ACTIVITIES INVOLVED PRACTICES PERTAINING
TO THE HANDLING AND CARE OF SHIPMENTS (39 STAT. 734, 46 U.S.C. SEC.
816); THEY WOULD HAVE TO FILE REPORTS AND BUSINESS RECORDS CALLED FOR
BY THE COMMISSION (39 STAT. 736, 46 U.S.C. SEC. 820); THEY WOULD BE
SUBJECT TO THE COMMISSION'S POWER TO AWARD REPARATIONS FOR VIOLATIONS
OF THE ACT (39 STAT. 736, 46 U.S.C. SEC. 821); AND THEY WOULD BE LIABLE
TO HEAVY PENALTIES (39 STAT. 734, 736, 738, 40 STAT. 900, 902, 46
U.S.C. SECS. 815, 820, 831, 839). 

THE SHIPPING ACT HAS BEEN ON THE STATUTE BOOKS SINCE 1916.  YET NOT
UNTIL 1942 DID THE AGENCY CHARGED WITH THE DUTY OF ENFORCING THE ACT
DEEM FORWARDERS OF THIS TYPE TO BE COVERED BY IT.  THE SCOPE OF ITS
LEGISLATION IS, OF COURSE, FOR CONGRESS TO DETERMINE AND NOT FOR THE
ENFORCING AGENCY.  INACTION, NO MATTER HOW CONSISTENT AND LONG
CONTINUED, CANNOT CONTRACT THE REACH OF A STATUTE.  BUT MUCH HAS
PROPERLY BEEN SAID ABOUT THE IMPORTANT SIGNIFICANCE WHICH ATTACHES TO
THE MEANING GIVEN A STATUTE BY THOSE WHOSE DUTY IT IS TO ENFORCE IT AND
WHO ARE DEEMED ESPECIALLY EQUIPPED TO BREATHE LIFE INTO INERT
LANGUAGE.  JUST AS ASSUMPTION OF JURISDICTION BY AN ADMINISTRATIVE
AGENCY FOR A LONG PERIOD OF TIME GOES A LONG WAY TO PROVE THAT POWERS
EXERCISED WERE IMPLIEDLY GIVEN, SEE UNITED STATES V. MIDWEST OIL CO.,
236 U.S. 459, A CONSISTENT AND UNEXPLAINED FAILURE TO EXERCISE POWER
NOT OBVIOUSLY CONFERRED BY LEGISLATION MAY BE EQUALLY PERSUASIVE THAT
THE POWER CLAIMED WAS NEVER CONFERRED.  IT IS NOT TO BE PRESUMED THAT
FOR DECADES OFFICIALS WERE EITHER IGNORANT OF THE DUTIES WITH WHICH
CONGRESS CHARGED THEM OR DERELICT IN THEIR ENFORCEMENT. 

A CONSIDERATION OF THE LANGUAGE OF THE LEGISLATION IN ITS PROPER
SETTING MAKES IT ABUNDANTLY CLEAR THAT THE FAILURE OF THE COMMISSION
AND ITS PREDECESSOR FOR MORE THAN TWENTY-FIVE YEARS TO EXERCISE THE
AUTHORITY WHICH IT NOW CLAIMS WAS DUE NEITHER TO IGNORANCE NOR TO
INDIFFERENCE.  THE EXPLANATION THAT WOULD SPONTANEOUSLY OCCUR TO ONE
FOR SUCH ADMINISTRATIVE PRACTICE IS, I BELIEVE, THE RIGHT ONE:  THE
POWER WAS NOT EXERCISED BECAUSE CONGRESS DID NOT GRANT IT. 

IT IS A FAIR GENERALIZATION THAT CONGRESS HAS NEVER SUPPLANTED THE
FORCES OF COMPETITION BY ADMINISTRATIVE REGULATION UNTIL A REAL EVIL
HAD, IN THE OPINION OF CONGRESS, MANIFESTED THE NEED FOR IT.  ONE TURNS
IN VAIN TO THE CONGRESSIONAL INVESTIGATION WHICH LED TO THE SHIPPING
ACT, TO THE HEARINGS ON THE BILLS WHICH BECAME THAT ACT, TO THE REPORTS
ON WHICH IT WAS BASED, TO THE EXPERIENCE UNDER THE ACT SINCE ITS
INCEPTION, AS REFLECTED IN THE REPORTS OF THE MARITIME COMMISSION AND
ITS PREDECESSOR THE SHIPPING BOARD, FOR ANY INDICATION THAT THE
BUSINESS OF INDEPENDENT FORWARDERS, LIKE THOSE IN THIS CASE, WAS SO
CONDUCTED AS TO MAKE THEIR REGULATION APPROPRIATE EITHER TO CURB
PRACTICES THEMSELVES INIMICAL TO THE PUBLIC INTEREST OR TO RENDER
EFFECTIVE THE REGULATION OF WATER CARRIERS. 

THE COMMISSION'S CLAIM OF JURISDICTION MUST REST ON CONSTRUCTION OF
THE PHRASE "BUSINESS OF FORWARDING  ...  IN CONNECTION WITH A COMMON
CARRIER BY WATER."  39 STAT. 728, 46 U.S.C. SEC. 801.  WHATEVER THE
"BUSINESS OF FORWARDING" MAY HERE MEAN, EFFECT MUST BE GIVEN TO THE
QUALIFYING PHRASE "IN CONNECTION WITH A COMMON CARRIER BY WATER."  IF
IT IS LEFT WITHOUT ANY APPROPRIATE FUNCTION UNLESS THESE INDEPENDENT
FORWARDERS ARE COVERED, IT MUST BE APPLIED TO THEM.  BUT IF AMPLE SCOPE
CAN BE GIVEN TO THE PHRASE WITHOUT ATTRIBUTING TO CONGRESS SUCH A
SUDDEN ASSUMPTION OF AUTHORITY OVER INDEPENDENT FORWARDERS ALTHOUGH NO
NEED FOR TAKING SUCH CONTROL HAD BEEN REVEALED, WE SHOULD AVOID UNDUE
EXTENSION OF LANGUAGE AS PART OF OUR DUTY TO GIVE FAIR MEANING TO WHAT
CONGRESS HAS SAID. 

ABSTRACTLY IT MAY BE ARGUED THAT "FORWARDING" WAS INTENDED TO COVER
ONLY THOSE ACTIVITIES WHICH INCLUDED THE PHYSICAL TRANSPORTATION OR
MOVEMENT OF GOODS FROM ONE PLACE TO ANOTHER.  CF. E.G., H.R. 9089,
9090, 9888, 76TH CONG., 3D SESS. (1940); S. 3665, 3666, 4096, 76TH
CONG., 3D SESS. (1940).  SUPPORT FOR SUCH A RESTRICTIVE MEANING MIGHT
BE DRAWN FROM THE FACT THAT THE "OTHER PERSONS" SUBJECT TO THE ACT WERE
THOSE CONCERNED WITH THE PHYSICAL HANDLING OF THE GOODS.  BUT SUCH A
CONSTRUCTION WOULD DISREGARD THE PURPOSE OF THE STATUTE.  AGAIN, THE
TERM MAY BE SAID TO COVER ONLY THOSE BUSINESSES IN WHICH THE FORWARDER
ASSUMES THE LIABILITY FOR SAFE SHIPMENT OF THE GOODS FROM POINT OF
SHIPMENT TO THEIR DESTINATION.  CF. 56 STAT. 284, 49 U.S.C. SUPP. V,
SEC. 1002 (A)(5)(B).  SUCH A CONSTRUCTION LIKEWISE DOES NOT HARMONIZE
WITH THE AIMS OF THE STATUTE.  THE MOST NATURAL MEANING OF "FORWARDING"
INCLUDES THE BUSINESS IN WHICH THESE APPELLEES ENGAGE, NAMELY, THE
RENDERING OF ADMINISTRATIVE AND BROKERAGE SERVICES.  CF. H.R. REP. NO.
1682, 77TH CONG., 2D SESS. (1942). 

BUT CONGRESS DID NOT REGULATE "FORWARDERS"; IT REGULATED THE
"BUSINESS OF FORWARDING  ...  IN CONNECTION WITH A COMMON CARRIER BY
WATER."  WHEN, THEN, IS FORWARDING "IN CONNECTION WITH A COMMON CARRIER
BY WATER"?  THAT TERM MAY MEAN A BUSINESS OR FINANCIAL CONNECTION; IT
MAY MEAN A PHYSICAL CONNECTION, I.E., THE MUTUAL HANDLING OF GOODS; IT
MAY MEAN BOTH.  OR IT MAY MEAN ANY SHARE IN THE PROCESS OF OFFERING OF
GOODS FOR WATER SHIPMENT.  THIS LAST CONSTRUCTION WOULD MEAN THAT THE
RESTRICTION COULD HAVE BEEN INCLUDED ONLY FOR THE PURPOSE OF EXCLUDING
FORWARDERS LIKE THESE BUT CONCERNED WITH SHIPMENT BY RAIL.  SUCH IS THE
COMMISSION'S ESSENTIAL ARGUMENT, THAT THE PHRASE IS MERELY A SAVING
CLAUSE AGAINST ITS APPLICATION TO FORWARDERS DEALING WITH LAND
CARRIERS.  TO SUGGEST THAT SUCH A ROUNDABOUT METHOD WAS USED FOR THE
PURPOSE OF SAYING THAT THIS STATUTE WAS NOT IMPLIEDLY INTENDED AS AN
AMENDMENT TO THE FAMILIAR INTERSTATE COMMERCE ACT, 24 STAT. 379, 49
U.S.C. SEC. 1, AMENDMENTS TO WHICH HAVE ALWAYS BEEN DESIGNATED AS SUCH,
THE ADMINISTRATION OF WHICH WAS VESTED WITH A DIFFERENT COMMISSION, THE
INTERSTATE COMMERCE COMMISSION, AND THE SUBJECT MATTER OF WHICH WAS
COMPLETELY DISTINGUISHABLE IN THE VERY TITLES OF THE STATUTES, IS TO
ATTRIBUTE A FANCIFUL ABUNDANCE OF CAUTION, AND LESS THAN COMMON SENSE
TO THE DRAUGHTSMAN.  IF EVERY FORWARDER DEALING WITH WATER CARRIERS WAS
TO BE COVERED BY THE ACT, THE OBVIOUS WAY OF COVERING THEM WOULD HAVE
BEEN SIMPLY TO SAY "FORWARDERS" WITHOUT QUALIFICATION.  THE COMMISSION
REALLY ASKS US TO DISREGARD THE DUTY OF COURTS TO GIVE EFFECT TO EVERY
PHRASE USED BY CONGRESS.  THE CONSTRUCTION WHICH IS NOW ACCEPTED MEANS
THAT "IN CONNECTION WITH A COMMON CARRIER BY WATER" ARE PERFECTLY
SUPERFLUOUS WORDS AND ARE TO BE DELETED. 

SIGNIFICANCE MUST BE GIVEN TO THE QUALIFICATION.  WHAT MORE
REASONABLE THAN TO HOLD THAT THIS PHRASE MEANS THOSE FORWARDERS WHO ARE
SO CLOSELY TIED TO THE BUSINESS OF THE WATER CARRIER, BY CORPORATE,
FINANCIAL, OR PHYSICAL UNION, AS TO MAKE REGULATION OF THEM APPROPRIATE
IN ORDER TO CONTROL EFFECTIVELY THE CARRIERS WITH WHICH THEY ARE
AFFILIATED?  SUCH A FORWARDER IS REALLY A PART OF THE PROCESS OF
CARRYING.  HERE THE FORWARDERS ARE CLOSELY CONNECTED NOT WITH THE
CARRIER BUT WITH THE SHIPPER. 

THAT SUCH CONSTRUCTION RESPECTS CONGRESSIONAL PURPOSE IS REINFORCED
BY CONGRESSIONAL ACTION REGARDING FORWARDERS DEALING WITH LAND
CARRIERS.  WHEN CONGRESS, IN 1942, FIRST REGULATED SUCH LAND-CARRIER
FORWARDERS, 56 STAT. 284, 49 U.S.C., SUPP. V, SEC. 1001, FORWARDERS,
HAVING THE SAME FUNCTIONS IN RELATION TO LAND TRAFFIC AS THESE
APPELLEES DO IN RELATION TO WATER-BORNE TRAFFIC, WERE NOT INCLUDED. 
AND YET IT IS ARGUED THAT CONGRESS THIRTY YEARS AGO ASSERTED CONTROL
OVER SUCH FORWARDERS CONCERNED WITH WATER-BORNE TRAFFIC AND FORBADE
ORDINARY COMPETITION AMONG THEM, THOUGH NO BASIS IN EXPERIENCE CAN
ACCOUNT FOR SUCH ACTION BY CONGRESS. 

CALIFORNIA V. UNITED STATES, 320 U.S. 577, INVOLVED A TOTALLY
DIFFERENT SITUATION.  THAT CASE WAS CONCERNED WITH WHARVES - FACILITIES
PHYSICALLY CONNECTED WITH WATER CARRIERS.  THESE WERE JUST AS MUCH THE
AGENTS OF THE CARRIER AS OF THE SHIPPER; THEY FORMED AN INTEGRAL PART
OF THE CARRIER'S BUSINESS.  AS A MATTER OF PHYSICAL FACT, THE
"CONNECTION" OF THESE FORWARDERS TO A CARRIER IS VERY DIFFERENT FROM
THE "CONNECTION" OF WHARF FACILITIES TO THE CARRIER.  AWARENESS OF THAT
FACT WAS DEMONSTRATED BY THE SPECIFIC OMISSION, IN THE CALIFORNIA
OPINION, OF THE TERM "FORWARDER" IN CONSIDERING WHETHER PORT FACILITIES
WERE "CONNECTED" WITH WATER CARRIERS.  SEE CALIFORNIA V. UNITED STATES,
SUPRA, AT 586.  THE DIFFERENCE IN FACT AND IN BUSINESS RELATION BETWEEN
THE FORWARDERS'"CONNECTION" IN THIS CASE, CONSTITUTING MERELY AN ASPECT
OF THE SHIPPER-CARRIER RELATIONSHIP, AND THE "CONNECTION" IN THE
CALIFORNIA CASE, WHICH NORMALLY INVOLVES A CLOSE BUSINESS TIE WITH THE
CARRIER, IS VITAL AND SHOULD BE OBSERVED IN APPLYING A SECTION IN WHICH
CONGRESS DEALT COMPENDIOUSLY WITH VARIOUS ENTERPRISES OUTSIDE OF, BUT
RELATED TO, THE REGULATED FUNCTIONS OF WATER CARRIERS. 
..END :












BOUTELL V. WALLING, 327 U.S. 463 


NO. 73.  ARGUED OCTOBER 9, 1945.  - DECIDED FEBRUARY 25, 1946.  - 148
F.2D 329, AFFIRMED. 


1.  EMPLOYEES OF A GARAGE WHO ARE ENGAGED EXCLUSIVELY IN REPAIRING AND
MAINTAINING VEHICLES OF A SINGLE INTERSTATE MOTOR CARRIER COME WITHIN
THE COVERAGE OF THE FAIR LABOR STANDARDS ACT.  P. 466. 

2.  THEY ARE NOT ENGAGED IN A "SERVICE ESTABLISHMENT THE GREATER PART
OF WHOSE  ...  SERVICING IS IN INTRASTATE COMMERCE" WITHIN THE
EXEMPTION PROVIDED BY SEC. 13(A)(2) OF THE FAIR LABOR STANDARDS ACT. 
P. 467. 

3.  NOR DO THEY COME WITHIN SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS
ACT EXEMPTING "ANY EMPLOYEE WITH RESPECT TO WHOM THE INTERSTATE
COMMERCE COMMISSION HAS POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE PURSUANT TO THE PROVISIONS OF SECTION 204 OF THE MOTOR
CARRIER ACT, 1935," SINCE THEIR EMPLOYER IS NOT A CARRIER.  P. 467. 

4.  THE POWER OF THE INTERSTATE COMMERCE COMMISSION TO ESTABLISH
MAXIMUM HOURS OF SERVICE PURSUANT TO THE PROVISIONS OF SEC. 204 OF THE
MOTOR CARRIER ACT (PART II OF THE INTERSTATE COMMERCE ACT) IS LIMITED
TO EMPLOYEES OF "CARRIERS."  P. 467. 

5.  ADMINISTRATIVE INTERPRETATIONS OF THE FAIR LABOR STANDARDS ACT BY
THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF
LABOR AND THE INTERSTATE COMMERCE ACT BY THE INTERSTATE COMMERCE
COMMISSION ARE ENTITLED TO GREAT WEIGHT.  P. 471. 

BOUTELL ET AL., DOING BUSINESS AS F.J. BOUTELL SERVICE CO., V.
WALLING, WAGE AND HOUR ADMINISTRATOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

IN A SUIT BROUGHT BY THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION
OF THE DEPARTMENT OF LABOR, THE DISTRICT COURT ENJOINED PETITIONERS
FROM VIOLATING THE MAXIMUM HOURS PROVISIONS OF SEC. 7 OF THE FAIR LABOR
STANDARDS ACT.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  148 F.2D 329. 
THIS COURT GRANTED CERTIORARI.  325 U.S. 849.  AFFIRMED, P. 472. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT IN THE DISTRICT COURT OF THE UNITED STATES FOR
THE EASTERN DISTRICT OF MICHIGAN, BY THE ADMINISTRATOR OF THE WAGE AND
HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, TO ENJOIN PETITIONERS
FROM VIOLATING THE MAXIMUM HOURS PROVISIONS  FN1  OF THE FAIR LABOR
STANDARDS ACT OF 1938.  52 STAT. 1060, 29 U.S.C. SEC. 201, ET SEQ. 

PETITIONERS ARE TWO OF FOUR PARTNERS DOING BUSINESS AS F.J. BOUTELL
SERVICE COMPANY, THE OTHER TWO NOT BEING SUBJECT TO THE JURISDICTION OF
THE DISTRICT COURT.  THE FOUR PARTNERS ARE THE SOLE STOCKHOLDERS OF THE
F.J. BOUTELL DRIVE-AWAY COMPANY, A MICHIGAN CORPORATION, ENGAGED IN THE
TRANSPORTATION OF AUTOMOBILES AND ARMY EQUIPMENT IN INTERSTATE
COMMERCE. 

THE EMPLOYEES OF THE SERVICE COMPANY INVOLVED IN THIS SUIT ARE
MECHANICS ENGAGED IN GREASING, REPAIRING, SERVICING AND MAINTAINING THE
TRANSPORTATION EQUIPMENT OWNED AND OPERATED BY THE DRIVE-AWAY COMPANY. 
THE PARTIES HAVE STIPULATED AND THE TRIAL COURT HAS FOUND THAT THE
SERVICE COMPANY IS ENGAGED EXCLUSIVELY IN RENDERING SUCH SERVICE TO THE
DRIVE-AWAY COMPANY AND SUCH CORPORATION "IS AN ENTITY SEPARATE AND
DISTINCT FROM" THE SERVICE COMPANY. 

THE CASE PRESENTS TWO QUESTIONS:  (1) WHETHER THE EMPLOYEES OF THE
SERVICE COMPANY ARE "ENGAGED IN ANY RETAIL OR SERVICE ESTABLISHMENT THE
GREATER PART OF WHOSE SELLING OR SERVICING IS IN INTRASTATE COMMERCE"
WITHIN THE MEANING OF THE EXEMPTION CLAUSE, SEC. 13(A)(2); FN2  AND (2)
WHETHER THEY COME WITHIN THE EXEMPTION CLAUSE, SEC. 13(B)(1), WHICH
EXEMPTS FROM SEC. 7  FN3  OF THE ACT "ANY EMPLOYEE WITH RESPECT TO WHOM
THE INTERSTATE COMMERCE COMMISSION HAS POWER TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT TO THE PROVISIONS
OF SECTION 204 FN4  OF THE MOTOR CARRIER ACT, 1935."  52 STAT. 1068, 29
U.S.C. SEC. 213(B)(1).  THE DISTRICT COURT RULED AGAINST PETITIONERS ON
BOTH QUESTIONS AND GRANTED THE INJUNCTION SOUGHT BY THE ADMINISTRATOR. 
THE CIRCUIT COURT OF APPEALS AFFIRMED ON BOTH GROUNDS.  148 F.2D 329. 
WE AGREE WITH THOSE CONCLUSIONS. 

THE AMENDED FINDINGS OF FACT AGREED TO BY THE PARTIES INCLUDE THE
STATEMENT THAT THE PETITIONERS' EMPLOYEES "INVOLVED IN THIS PROCEEDING
ARE MECHANICS ENGAGED IN GREASING, REPAIRING, SERVICING AND MAINTAINING
THE TRANSPORTATION EQUIPMENT OWNED AND OPERATED BY THE F.J. BOUTELL
DRIVE-AWAY COMPANY  ..."  NO CLAIM IS MADE THAT THESE EMPLOYEES ARE NOT
ENGAGED IN INTERSTATE COMMERCE WITHIN THE MEANING OF SEC. 7 OF THE FAIR
LABOR STANDARDS ACT.  THEY ARE WELL WITHIN THE REQUIREMENT THAT THEY BE
"ACTUALLY IN OR SO CLOSELY RELATED TO THE MOVEMENT OF THE COMMERCE AS
TO BE A PART OF IT."  MCLEOD V. THRELKELD, 319 U.S. 491, 497.  FN5 

IN ANSWER TO THE FIRST QUESTION, THE RECORD SHOWS THAT THESE
EMPLOYEES DO NOT COME WITHIN THE EXEMPTION STATED IN SEC. 13(A)(2). 
THIS IS SO BECAUSE THEIR EMPLOYER, THE SERVICE COMPANY, SUPPLIES ITS
SERVICES, INCLUDING THEIR SERVICES, EXCLUSIVELY TO THE DRIVE-AWAY
COMPANY WHICH IN TURN USES THOSE SERVICES IN INTERSTATE COMMERCE.  THE
DRIVE-AWAY COMPANY DOES NOT USE THEIR SERVICES FOR ITS OWN PURPOSES AS
AN ULTIMATE CONSUMER, BEYOND THE END OF THE FLOW OF GOODS IN INTERSTATE
COMMERCE.  ACCORDINGLY, THE EMPLOYEES OF THE SERVICE COMPANY ARE NOT
ENGAGED IN A RETAIL OR SERVICE ESTABLISHMENT WITHIN THE MEANING OF SEC.
13(A)(2) AS INTERPRETED IN ROLAND ELECTRICAL CO. V. WALLING, 326 U.S.
657, AND MARTINO V. MICHIGAN WINDOW CLEANING CO., 327 U.S. 173. 
FURTHERMORE, SUBSTANTIALLY ALL OF THE SERVICING DONE BY THE SERVICE
COMPANY IS THUS DONE IN INTERSTATE COMMERCE, WHEREAS SEC. 13(A)(2)
REQUIRES THE GREATER PART OF IT TO BE DONE IN INTRASTATE COMMERCE IF
THE EMPLOYEES RENDERING IT ARE TO BE EXEMPTED UNDER THAT PROVISION. 

THE QUESTION WHETHER THE EMPLOYEES OF THE SERVICE COMPANY ARE TO BE
EXEMPTED BY VIRTUE OF SEC. 13(B)(1) TURNS UPON WHETHER THE INTERSTATE
COMMERCE COMMISSION HAS THE "POWER TO ESTABLISH" MAXIMUM HOURS OF
SERVICE FOR THEM UNDER SEC. 204(A)(1), (2) OR (3) OF THE MOTOR CARRIER
ACT, 1935, FN6  NOW OFFICIALLY CITED AS PART II OF THE INTERSTATE
COMMERCE ACT, 54 STAT. 919, 49 U.S.C. SEC. 301, ET SEQ. WHATEVER MAY BE
THE PRECISE SCOPE OF THE COMMISSION'S "POWER TO ESTABLISH" HOURS OF
SERVICE, WE HOLD THAT THE COMMISSION DOES NOT HAVE THAT POWER OVER THE
MEN HERE CONCERNED BECAUSE THE COMMISSION'S JURISDICTION IS LIMITED TO
EMPLOYEES OF "CARRIERS" AND THE RECORD HERE SHOWS THAT THE MEN IN
QUESTION ARE EMPLOYEES OF THE SERVICE COMPANY, WHICH IS NOT A CARRIER,
RATHER THAN OF THE DRIVE-AWAY COMPANY, WHICH IS A CARRIER.  THIS IS
TRUE ALTHOUGH THE WORK THESE EMPLOYEES DO IS ALL SUPPLIED TO THE DRIVE
AWAY COMPANY THROUGH THE SERVICE COMPANY. 

THE WAGE AND HOUR DIVISION HAS FOUND TO ITS SATISFACTION THE FACTS
NECESSARY TO PLACE THESE EMPLOYEES OF THE SERVICE COMPANY UNDER ITS
JURISDICTION FOR THE PURPOSES OF THE FAIR LABOR STANDARDS ACT.  THE
RECORD CONTAINS NO SUGGESTION THAT THE INTERSTATE COMMERCE COMMISSION
OR ANY OTHER ADMINISTRATIVE BODY HAS FOUND THAT THESE EMPLOYEES OF THE
SERVICE COMPANY ARE OR SHOULD BE TREATED AS EMPLOYEES OF THE DRIVE-AWAY
COMPANY FOR THE PURPOSES OF THE INTERSTATE COMMERCE ACT.  THIS CASE,
THEREFORE, IS DECIDED UPON THE BASIS THAT THE PARTIES HAVE STIPULATED
AND THE TRIAL COURT HAS FOUND THAT THESE EMPLOYEES ARE EMPLOYEES OF THE
PARTNERSHIP, THE SERVICE COMPANY, WHICH IS THE RELATIONSHIP ESTABLISHED
FOR THEM BY THE PETITIONERS AS THEIR EMPLOYERS.  SEE SCHENLEY
DISTILLERS CORP. V. UNITED STATES, 326 U.S. 432, FOR A CASE GIVING
EFFECT TO CERTAIN OTHER CONSEQUENCES UNDER THE MOTOR CARRIER ACT OF A
CORPORATE ARRANGEMENT CHOSEN BY THE PERSONS CONCERNED AS A MEANS OF
CARRYING ON THEIR BUSINESS.  SEE ALSO HIGGINS V. SMITH, 308 U.S. 473,
477, FOR A DIFFERENT RESULT UNDER OTHER CIRCUMSTANCES. 

IN THE ABSENCE OF POWER IN THE INTERSTATE COMMERCE COMMISSION TO
ESTABLISH THE MAXIMUM HOURS OF SERVICE OF THESE EMPLOYEES, THE
PROVISIONS OF THE FAIR LABOR STANDARDS ACT AS TO THEIR MAXIMUM HOURS OF
EMPLOYMENT REMAIN APPLICABLE TO THEM. 

IT APPEARS FROM THE FACE OF THE MOTOR CARRIER ACT THAT SEC. 204
REFERS ONLY TO THE REGULATION OF "CARRIERS."  MOREOVER, SECTION 226 OF
THE ACT (FORMERLY NUMBERED 225, 54 STAT. 929, 49 U.S.C. SEC. 325),
WHICH AUTHORIZES INVESTIGATIONS BY THE COMMISSION AS A BASIS FOR THE
REGULATION OF THE MAXIMUM HOURS OF SERVICE OF EMPLOYEES UNDER SEC. 204,
REFERS ONLY TO INVESTIGATIONS OF THE "MAXIMUM HOURS OF SERVICE OF
EMPLOYEES OF ALL MOTOR CARRIERS AND PRIVATE CARRIERS OF PROPERTY BY
MOTOR VEHICLE  ..."  FN7  THE LEGISLATIVE HISTORY OF THE SECTION IS
REVIEWED IN UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534,
544-550. 

THE INTERSTATE COMMERCE COMMISSION HAS WRITTEN MANY DECISIONS
DEFINING THE LIMITS OF ITS AUTHORITY TO PRESCRIBE QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE FOR EMPLOYEES OF MOTOR CARRIERS UNDER SEC.
204(A)(1), (2) AND (3), BUT THROUGHOUT THESE DECISIONS IT APPARENTLY
HAS ASSUMED THAT ITS JURISDICTION IS LIMITED TO EMPLOYEES OF "CARRIERS"
WHICH IN TURN ARE UNDER THE JURISDICTION OF THE COMMISSION.  IT HAS,
FOR EXAMPLE, RECOGNIZED ITS POWER TO ESTABLISH MAXIMUM HOURS OF SERVICE
FOR AUTOMOBILE MAINTENANCE MECHANICS OF "CARRIERS"  FN8  BUT AT THE
SAME TIME HAS SAID - 

"BY FAR THE LARGER PROPORTION OF THE CARRIERS SUBJECT TO OUR
JURISDICTION OPERATE LESS THAN 10 VEHICLES AND DO NOT EMPLOY MECHANICS
TO REPAIR THEIR VEHICLES, BUT ON THE CONTRARY HAVE SUCH WORK DONE IN
COMMERCIAL GARAGES.  WE HAVE, OF COURSE, NO JURISDICTION OVER EMPLOYEES
WORKING IN COMMERCIAL GARAGES."  EX PARTE NO. MC-2, IN THE MATTER OF
MAXIMUM HOURS OF SERVICE OF MOTOR CARRIER EMPLOYEES, 28 M.C.C. 125,
132. 

THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF
LABOR HAS INTERPRETED SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT
CONSISTENTLY WITH THE INTERPRETATION GIVEN TO IT BY THE INTERSTATE
COMMERCE COMMISSION.  FN9  THE INTERPRETATION OF THIS ACT BY EACH OF
THESE AGENCIES IS ENTITLED TO GREAT WEIGHT.  UNITED STATES V. AMERICAN
TRUCKING ASSNS., 310 U.S. 534, 549. 

THROUGHOUT THE DISCUSSION OF THESE SECTIONS BY THIS COURT IN UNITED
STATES V. AMERICAN TRUCKING ASSNS., SUPRA, AND IN SOUTHLAND GASOLINE
CO. V. BAYLEY, 319 U.S. 44, IT IS ASSUMED THAT THEY REFER TO EMPLOYEES
OF "CARRIERS" AND OF "MOTOR VEHICLE OPERATORS" WHICH ARE THEMSELVES
UNDER THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION, AND THERE
IS NOTHING IN EITHER CASE TO INDICATE AN INTERPRETATION BY THIS COURT
THAT THE EXEMPTION PRESCRIBED IN SEC. 13(B)(1) EXTENDS TO WORKERS WHOSE
SERVICES AFFECT THE SAFETY OF OPERATIONS OF MOTOR VEHICLE CARRIERS BUT
WHO ARE NOT THEMSELVES EMPLOYEES OF A CARRIER. 

IN THIS VIEW OF THIS CASE, IT IS NOT NECESSARY TO DETERMINE WHAT KIND
OF A CARRIER THE DRIVE-AWAY COMPANY IS OR EVEN WHETHER IT IS A CARRIER
WITHIN THE MEANING OF THE MOTOR CARRIER ACT BECAUSE THE EMPLOYEES
INVOLVED IN THIS CASE ARE NOT ITS EMPLOYEES.  SIMILARLY, IT IS NOT
NECESSARY TO DETERMINE WHICH OF THE EMPLOYEES OF THE SERVICE COMPANY DO
WORK WHICH AFFECTS THE SAFETY OF THE OPERATION OF MOTOR VEHICLES
BECAUSE THAT CLASSIFICATION APPLIES TO EMPLOYEES WHOSE HOURS ARE
REGULATED BY THE INTERSTATE COMMERCE COMMISSION AND NOT TO THOSE WHOSE
HOURS ARE REGULATED BY THE FAIR LABOR STANDARDS ACT. 

FOR THESE REASONS WE FIND THAT PETITIONERS' EMPLOYEES COME WITHIN THE
COVERAGE OF THE FAIR LABOR STANDARDS ACT OF 1938 AND NOT WITHIN THE
EXEMPTIONS STATED IN EITHER SEC. 13(A)(2) OR SEC. 13(B)(1) OF THAT ACT,
AND THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS, THEREFORE, IS
AFFIRMED. 

FN1  "SEC.  7.  (A) NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED
IN THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE
OR IN THE PRODUCTION OF GOODS FOR COMMERCE - 

(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION, 

(2)  FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND
YEAR FROM SUCH DATE, OR 

(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED
AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT
WHICH HE IS EMPLOYED."  52 STAT. 1063, 29 U.S.C. SEC. 207(A). 

FN2  "SEC.  13.  (A) THE PROVISIONS OF SECTIONS 6 AND 7 SHALL NOT
APPLY WITH RESPECT TO  ...  (2) ANY EMPLOYEE ENGAGED IN ANY RETAIL OR
SERVICE ESTABLISHMENT THE GREATER PART OF WHOSE SELLING OR SERVICING IS
IN INTRASTATE COMMERCE; ..."  52 STAT. 1067, 29 U.S.C. SEC. 213(A)(2). 

FN3  SEE NOTE 1 SUPRA. 

FN4  "SEC.  204(A) IT SHALL BE THE DUTY OF THE COMMISSION - 

"(1)  TO REGULATE COMMON CARRIERS BY MOTOR VEHICLE AS PROVIDED IN
THIS PART, AND TO THAT END THE COMMISSION MAY ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO CONTINUOUS AND ADEQUATE SERVICE,
TRANSPORTATION OF BAGGAGE AND EXPRESS, UNIFORM SYSTEMS OF ACCOUNTS,
RECORDS, AND REPORTS, PRESERVATION OF RECORDS, QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND
EQUIPMENT. 

"(2)  TO REGULATE CONTRACT CARRIERS BY MOTOR VEHICLE AS PROVIDED IN
THIS PART, AND TO THAT END THE COMMISSION MAY ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO UNIFORM SYSTEMS OF ACCOUNTS, RECORDS, AND
REPORTS, PRESERVATION OF RECORDS, QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND EQUIPMENT. 

"(3)  TO ESTABLISH FOR PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE,
IF NEED THEREFOR IS FOUND, REASONABLE REQUIREMENTS TO PROMOTE SAFETY OF
OPERATION, AND TO THAT END PRESCRIBE QUALIFICATIONS AND MAXIMUM HOURS
OF SERVICE OF EMPLOYEES, AND STANDARDS OF EQUIPMENT...."  49 STAT. 546,
49 U.S.C. SEC. 304(A)(1)(2)(3). 

FN5  OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125, 130; OVERNIGHT
MOTOR CO. V. MISSEL, 316 U.S. 572, 574.  SEE ALSO UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, NEW YORK CENTRAL R. CO. V. MARCONE, 281 U.S.
345, 349; PEDERSEN V. DELAWARE, L. & W.R. CO., 229 U.S. 146, 150; NEW
YORK, N.H. & H.R. CO. V. WALSH, 223 U.S. 1, 6.  COMPARE SHANKS V.
DELAWARE, L. & W.R. CO., 239 U.S. 556, 560. 

FN6  SEE NOTE 4 SUPRA. 

FN7  "SEC.  225.  THE COMMISSION IS HEREBY AUTHORIZED TO INVESTIGATE
AND REPORT ON THE NEED FOR FEDERAL REGULATION OF THE SIZES AND WEIGHT
OF MOTOR VEHICLES AND COMBINATIONS OF MOTOR VEHICLES AND OF THE
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES OF ALL MOTOR
CARRIERS AND PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE; AND IN SUCH
INVESTIGATION THE COMMISSION SHALL AVAIL ITSELF OF THE ASSISTANCE OF
ALL DEPARTMENTS OR BUREAUS OF THE GOVERNMENT AND OF ANY ORGANIZATION OF
MOTOR CARRIERS HAVING SPECIAL KNOWLEDGE OF ANY SUCH MATTER."  49 STAT.
566, 49 U.S.C. SEC. 325, RENUMBERED AS SEC. 226 BY 54 STAT. 929.    IN
DISCUSSING SEC. 204(A)(1), (2) AND (3) AND SEC. 225 SENATOR WHEELER,
SPONSOR OF THE BILL, SAID IN EXPLANATION OF IT - 

"...  THE COMMITTEE AMENDED PARAGRAPHS (1) AND (2) TO CONFER POWER ON
THE COMMISSION TO ESTABLISH REASONABLE REQUIREMENTS WITH RESPECT TO THE
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES OF COMMON AND
CONTRACT CARRIERS, THUS RESTORING PROVISIONS THAT WERE IN THE RAYBURN
BILL, INTRODUCED IN THE SEVENTY-THIRD CONGRESS....    "IN ORDER TO MAKE
THE HIGHWAYS MORE SAFE, AND SO THAT COMMON AND CONTRACT CARRIERS MAY
NOT BE UNDULY PREJUDICED IN THEIR COMPETITION WITH PEDDLER TRUCKS AND
OTHER PRIVATE OPERATORS OF MOTOR TRUCKS, A PROVISION WAS ADDED IN
SUBPARAGRAPH 3 GIVING THE COMMISSION AUTHORITY TO ESTABLISH SIMILAR
REQUIREMENTS WITH RESPECT TO THE QUALIFICATIONS AND HOURS OF SERVICE OF
THE EMPLOYEES OF SUCH OPERATORS.  THE EXERCISE OF THIS POWER WITH
RESPECT TO THE THREE CLASSES OF CARRIERS IS INTENDED TO BE CONTINGENT
UPON THE RESULTS OF THE COMPREHENSIVE INVESTIGATION OF THE NEED FOR
REGULATION OF THIS KIND PROVIDED FOR IN SECTION 225  ...."  79 CONG.
REC. 5652.  SEE ALSO, P. 5660. 

IN THE HOUSE OF REPRESENTATIVES, REPRESENTATIVE PETTENGILL READ THE
FOLLOWING OBSERVATION MADE BY JOSEPH B. EASTMAN OF THE INTERSTATE
COMMERCE COMMISSION - 

"THE BILL  ...  GIVES THE COMMISSION AUTHORITY TO PRESCRIBE MAXIMUM
HOURS OF SERVICE FOR THE EMPLOYEES OF COMMON CARRIERS, CONTRACT
CARRIERS, AND PRIVATE CARRIERS OF PROPERTY  ...."  79 CONG. REC.
12,229.  SEE ALSO, S. REP. NO. 482, 74TH CONG., 1ST SESS. (1935) P. 1. 

FN8  "OUR FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE AS FOLLOWS: 

"FINDINGS OF FACT.  - 1.  THAT MECHANICS EMPLOYED BY COMMON AND
CONTRACT CARRIERS AND PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE,
SUBJECT TO PART II OF THE INTERSTATE COMMERCE ACT, DEVOTE A LARGE PART
OF THEIR TIME TO ACTIVITIES WHICH DIRECTLY AFFECT THE SAFETY OF
OPERATION OF MOTOR VEHICLES IN INTERSTATE OR FOREIGN COMMERCE.... 

"CONCLUSIONS OF LAW.  -  ... 

"3.  THAT WE HAVE POWER, UNDER SECTION 204(A) OF SAID PART II, TO
ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR THE CLASSES
OF EMPLOYEES COVERED BY FINDINGS OF FACT NUMBERED 1, 2, AND 3 ABOVE,
(MECHANICS, LOADERS AND HELPERS EMPLOYED BY CARRIERS) AND THAT WE HAVE
NO SUCH POWER OVER ANY OTHER CLASSES OF EMPLOYEES, EXCEPT DRIVERS."  EX
PARTE NO. MC-2, 28 M.C.C. 125, 138-139.  SEE ALSO EX PARTE NO. MC-2, 3
M.C.C. 665, 667; 6 M.C.C. 557; 11 M.C.C. 203; EX PARTE NO. MC-28,
JURISDICTION OVER EMPLOYEES OF MOTOR CARRIERS, 13 M.C.C. 481, 488; EX
PARTE NO. MC-3, MOTOR CARRIER SAFETY REGULATIONS - PRIVATE CARRIERS, 23
M.C.C. 1, 8. 

FN9  SEE INTERPRETATIVE BULLETIN NO. 9, WAGE AND HOUR DIVISION,
OFFICE OF THE ADMINISTRATOR, ORIGINALLY ISSUED MARCH, 1939, 5TH REV.,
OCTOBER, 1943.  2 C.C.H. LABOR LAW SERVICE, P32,109.  WHERE MOTOR
VEHICLE DRIVERS OR MECHANICS ARE EMPLOYED BY COMPANIES ENGAGED IN
CERTAIN TYPES OF INTERSTATE TRANSPORTATION OVER WHICH THE INTERSTATE
COMMERCE COMMISSION DISCLAIMS JURISDICTION, THEY ARE HELD TO BE COVERED
BY THE FAIR LABOR STANDARDS ACT.  FOR EXAMPLE, IF SUCH EMPLOYEES ARE
ENGAGED IN THE TRANSPORTATION IN INTERSTATE COMMERCE OF CONSUMABLE
GOODS, SUCH AS FOOD, COAL AND ICE, TO RAILROADS AND DOCKS FOR USE IN
TRAINS AND STEAMSHIPS, JURISDICTION OVER THEM IS DISCLAIMED BY THE
COMMISSION BUT IS ACCEPTED BY THE WAGE AND HOUR DIVISION AS COVERED BY
THE FAIR LABOR STANDARDS ACT.  INTERPRETATIVE BULLETIN NO. 9, SUPRA,
PAR. 6(B).  THE WAGE AND HOUR DIVISION ALSO ACCEPTS JURISDICTION OVER
EMPLOYEES ENGAGED IN THE TRANSPORTATION OF MAIL IN INTERSTATE COMMERCE
WHO ARE EMPLOYED, NOT BY THE CARRIER, BUT BY A CONTRACTOR DEALING
DIRECTLY WITH THE POST OFFICE DEPARTMENT.  ID., PAR. 7(B). 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I AGREE THAT THESE EMPLOYEES WOULD BE COVERED BY THE FAIR LABOR
STANDARDS ACT BUT FOR THE EXEMPTION CONTAINED IN SEC. 13(B)(1).  THAT
SUBSECTION EXEMPTS FROM SEC. 7 OF THE ACT "ANY EMPLOYEE WITH RESPECT TO
WHOM THE INTERSTATE COMMERCE COMMISSION HAS POWER TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT TO THE PROVISIONS
OF SECTION 204 OF THE MOTOR CARRIER ACT, 1935  ..." 

THERE IS NO DOUBT THAT THE INTERSTATE COMMERCE COMMISSION HAS THE
POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS FOR EMPLOYEES OF A
CARRIER WHO ARE MECHANICS ENGAGED IN GREASING, REPAIRING, SERVICING,
AND MAINTAINING ITS TRANSPORTATION EQUIPMENT.  IN THE MATTER OF MAXIMUM
HOURS OF SERVICE OF MOTOR CARRIER EMPLOYEES, 28 M.C.C. 125.  I THINK
THAT POWER WOULD STILL EXIST IF THE CARRIER SEPARATELY INCORPORATED ITS
GARAGE.  THIS AFFILIATED GARAGE IS NOT LIKE AN INDEPENDENT COMMERCIAL
GARAGE.  IT IS STILL A PART OF THE CARRIER'S BUSINESS - NO MORE
SEPARATE OR DISTINCT THAN ANY OTHER DEPARTMENT.  THE SAME PEOPLE OWN
IT, OPERATE IT, AND MANAGE IT.  IF THE INTERSTATE COMMERCE COMMISSION,
ACTING UNDER SEC. 204 OF THE MOTOR CARRIER ACT OF 1935, HAD UNDERTAKEN
TO ESTABLISH THE QUALIFICATIONS AND MAXIMUM HOURS FOR THESE MECHANICS,
I CANNOT BELIEVE THAT WE WOULD ALLOW ITS JURISDICTION TO BE DEFEATED BY
THAT DEVICE, WHATEVER MAY HAVE BEEN THE REASON FOR THE SEPARATE
INCORPORATION OF THE GARAGE.  FOR THESE MECHANICS WERE, IN THE
PRACTICAL SENSE, EMPLOYEES OF THE CARRIER AFTER, AS WELL AS BEFORE,
INCORPORATION.  AND THE EXEMPTION CONTAINED IN SEC. 13(B)(1) OF THE
FAIR LABOR STANDARDS ACT IS DEPENDENT, NOT ON THE EXERCISE BY THE
INTERSTATE COMMERCE COMMISSION OF ITS POWER, BUT ON THE EXISTENCE OF
THAT POWER.  FN1  THE POWER WHICH CONGRESS GRANTED THE INTERSTATE
COMMERCE COMMISSION TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS FOR
MECHANICS SHOULD NOT BE ALLOWED TO BE DEFEATED BY ARRANGEMENTS BETWEEN
PARTIES WHICH, FOR CERTAIN PURPOSES, MAY ESTOP THEM FROM ASSERTING THAT
TWO CORPORATIONS IN FORM ARE ONE IN SUBSTANCE. 

THIS PARTICULAR EXEMPTION MAY NOT BE A WISE ONE.  BUT WE MUST TAKE
THE LAW AS IT IS WRITTEN.  THE POLICY BEHIND THE EXEMPTION IS DEFEATED,
IF MERE LEGAL FORMS ARE ALLOWED TO NULLIFY THE POWER OF THE INTERSTATE
COMMERCE COMMISSION TO DEAL WITH THE PROBLEM OF SAFETY.  AS THE
COMMISSION SAID, "...  THE CAREFULLY SUPERVISED WORK OF SKILLED
MECHANICS IS A MOST IMPORTANT FACTOR IN THE PREVENTION OF ACCIDENTS,
AND THEREFORE IN THE PROMOTION OF HIGHWAY SAFETY."  IN THE MATTER OF
MAXIMUM HOURS OF SERVICE OF MOTOR CARRIER EMPLOYEES, SUPRA, P. 133.  WE
SHOULD REFUSE TO WHITTLE DOWN THAT JURISDICTION, EVEN THOUGH WE THOUGHT
THAT THE PUBLIC INTEREST WOULD BE BETTER SERVED BY BROADENING THE
COVERAGE OF THE FAIR LABOR STANDARDS ACT. 

FN1  TO DATE THE COMMISSION HAS PRESCRIBED QUALIFICATIONS AND MAXIMUM
HOURS ONLY FOR DRIVERS.  SEE 49 CODE FED. REG., CUM. SUPP. (1944) PARTS
191, 192. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE RUTLEDGE JOIN IN THIS
DISSENT. 
..END :
















MABEE V. WHITE PLAINS PUB. CO., 327 U.S. 178 


NO. 57.  ARGUED DECEMBER 5, 1945.  - DECIDED FEBRUARY 11, 1946.  - 294
N.Y. 701, 60 N.E.2D 848, REVERSED. 


1.  THE PUBLISHER OF A DAILY NEWSPAPER WITH A CIRCULATION RANGING FROM
9,000 TO 11,000 COPIES, OF WHICH ABOUT ONE-HALF OF ONE PER CENT
REGULARLY GOES OUT OF THE STATE, IS ENGAGED IN THE PRODUCTION OF GOODS
FOR INTERSTATE COMMERCE WITHIN THE MEANING OF THE FAIR LABOR STANDARDS
ACT OF 1938.  PP. 180, 184. 

(A)  THE MAXIM DE MINIMIS HAS NO APPLICATION HERE, BECAUSE CONGRESS
MADE NO DISTINCTION ON THE BASIS OF VOLUME OF BUSINESS, BUT, BY SEC.
15(A)(1) OF THE ACT, OUTLAWED THE SHIPMENT IN INTERSTATE COMMERCE OF
"ANY GOODS IN THE PRODUCTION OF WHICH ANY EMPLOYEE WAS EMPLOYED IN
VIOLATION OF" THE OVERTIME AND MINIMUM WAGE REQUIREMENTS OF THE ACT. 
P. 181. 

(B)  THOUGH IT BE ASSUMED THAT SPORADIC OR OCCASIONAL SHIPMENTS OF
INSUBSTANTIAL AMOUNTS OF GOODS WERE NOT INTENDED TO BE INCLUDED IN THAT
PROHIBITION, THERE IS NO WARRANT FOR ASSUMING THAT REGULAR SHIPMENTS
ARE TO BE INCLUDED OR EXCLUDED DEPENDENT ON THEIR SIZE.  P. 181. 

(C)  THESE VIEWS ARE BORNE OUT BY THE LEGISLATIVE HISTORY OF THE ACT,
BY THE EXPRESS EXEMPTION BY SEC. 13(A)(8) OF ANY EMPLOYEE OF ANY WEEKLY
OR SEMIWEEKLY NEWSPAPER WITH A CIRCULATION OF LESS THAN 3,000, THE
MAJOR PART OF WHICH IS WITHIN THE COUNTY OF PUBLICATION, AND BY THE
LACK OF ANY EXEMPTION FOR DAILY NEWSPAPERS OR ON THE BASIS OF VOLUME OF
OUT-OF-STATE CIRCULATION.  P. 182. 

2.  THE PRINCIPLES ANNOUNCED IN GROSJEAN V. AMERICAN PRESS CO., 297
U.S. 233, HOLDING A STATE LICENSE TAX ON NEWSPAPERS GRADUATED IN
ACCORDANCE WITH THE VOLUME OF CIRCULATION UNCONSTITUTIONAL, ARE NOT
APPLICABLE HERE, NOTWITHSTANDING THE EXEMPTION OF SMALL WEEKLY AND
SEMIWEEKLY NEWSPAPERS BY SEC. 13(A)(8) OF THE FAIR LABOR STANDARDS
ACT.  P. 184. 

(A)  THE ACT DOES NOT LAY A DIRECT BURDEN ON THE PRESS IN VIOLATION
OF THE FIRST AMENDMENT, SINCE THE PRESS HAS NO SPECIAL IMMUNITY FROM
LAWS APPLICABLE TO BUSINESS IN GENERAL.  P. 184. 

(B)  THE EXEMPTION OF SMALL WEEKLIES AND SEMIWEEKLIES IS NOT A
"DELIBERATE AND CALCULATED DEVICE" TO PENALIZE A CERTAIN GROUP OF
NEWSPAPERS BUT WAS INSERTED TO PUT THOSE PAPERS MORE ON A PARITY WITH
OTHER SMALL TOWN ENTERPRISES.  P. 184. 

(C)  THE FIFTH AMENDMENT DOES NOT REQUIRE FULL AND UNIFORM EXERCISE
OF THE COMMERCE POWER.  CONGRESS MAY WEIGH RELATIVE NEEDS AND RESTRICT
THE APPLICATION OF A LEGISLATIVE POLICY TO LESS THAN THE ENTIRE FIELD. 
P. 184. 

3.  THE FACT THAT THE PUBLISHER OF SUCH A NEWSPAPER IS ENGAGED IN THE
PRODUCTION OF GOODS FOR INTERSTATE COMMERCE DOES NOT NECESSARILY MEAN
THAT HIS EMPLOYEES ARE COVERED BY THE FAIR LABOR STANDARDS ACT OF 1938,
SINCE THAT IS DEPENDENT ON THE CHARACTER OF THEIR WORK.  KIRSCHBAUM CO.
V. WALLING, 316 U.S. 517, 524; WALLING V. JACKSONVILLE PAPER CO., 317
U.S. 564.  P. 184. 

4.  NO OPINION IS EXPRESSED ON THAT PHASE OF THE CASE, SINCE THE
STATE APPELLATE COURTS DID NOT PASS ON IT.  P. 185. 

MABEE ET AL. V. WHITE PLAINS PUBLISHING CO. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

PETITIONERS SUED IN THE NEW YORK COURTS FOR OVERTIME COMPENSATION
UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT.  THE TRIAL COURT
OVERRULED A MOTION TO DISMISS THE COMPLAINT, 179 MISC. 832, 38 N.Y.S.2D
231, AND GAVE JUDGMENT FOR PETITIONERS.  180 MISC. 8, 41 N.Y.S.2D 534. 
THE APPELLATE DIVISION REVERSED.  267 APP. DIV. 284, 45 N.Y.S.2D 479. 
THE COURT OF APPEALS AFFIRMED.  293 N.Y. 781, 58 N.E.2D 520.  IT LATER
AMENDED THE REMITTITUR.  294 N.Y. 701, 60 N.E.2D 848.  THIS COURT
GRANTED CERTIORARI.  325 U.S. 845.  REVERSED, P. 185. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT PUBLISHES A DAILY NEWSPAPER AT WHITE PLAINS, NEW YORK. 
DURING THE PERIOD RELEVANT HERE, ITS DAILY CIRCULATION RANGED FROM
9,000 TO 11,000 COPIES.  IT HAD NO DESIRE FOR AND MADE NO EFFORT TO
SECURE OUT-OF-STATE CIRCULATION.  PRACTICALLY ALL OF ITS CIRCULATION
WAS LOCAL.  BUT ABOUT ONE-HALF OF 1 PER CENT WAS REGULARLY OUT-OF
STATE.  FN1  PETITIONERS ARE SOME OF RESPONDENT'S EMPLOYEES.  THEY
BROUGHT THIS SUIT IN THE NEW YORK COURTS TO RECOVER OVERTIME
COMPENSATION, LIQUIDATED DAMAGES AND COUNSEL FEES PURSUANT TO SEC.
16(B) OF THE FAIR LABOR STANDARDS ACT OF 1938.  52 STAT. 1069, 29
U.S.C. SEC. 216(B).  THE SUPREME COURT GAVE JUDGMENT FOR THE
PETITIONERS.  179 MISC. 832, 38 N.Y.S.2D 231; 180 MISC. 8, 41 N.Y.S.2D
534.  THE APPELLATE DIVISION REVERSED AND ORDERED THE COMPLAINT TO BE
DISMISSED.  267 APP. DIV. 284, 45 N.Y.S.2D 479.  THAT JUDGMENT WAS
AFFIRMED BY THE COURT OF APPEALS WITHOUT OPINION.  293 N.Y. 781, 58
N.E.2D 520; 294 N.Y. 701, 60 N.E.2D 848.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
PROBABLE CONFLICT BETWEEN THE DECISION BELOW AND THOSE FROM THE FEDERAL
COURTS.  FN2 

THE APPELLATE DIVISION APPLIED THE MAXIM DE MINIMIS TO EXCLUDE
RESPONDENT FROM THE PROVISIONS OF THE ACT.  WE THINK THAT WAS ERROR. 
THE COURT INDICATED IN LABOR BOARD V. FAINBLATT, 306 U.S. 601, 607,
THAT THE OPERATION OF THE NATIONAL LABOR RELATIONS ACT (49 STAT. 449,
29 U.S.C. SEC. 151) WAS NOT DEPENDENT ON "ANY PARTICULAR VOLUME OF
COMMERCE AFFECTED MORE THAN THAT TO WHICH COURTS WOULD APPLY THE MAXIM
DE MINIMIS."  THAT ACT,  FN3  UNLIKE THE PRESENT ONE (WALLING V.
JACKSONVILLE PAPER CO., 317 U.S. 564, 570-571), REGULATES LABOR
DISPUTES "AFFECTING" COMMERCE.  49 STAT. 450, 29 U.S.C. SEC. 152.  WE
NEED NOT STOP TO CONSIDER WHAT DIFFERENT SCOPE, IF ANY, THE MAXIM DE
MINIMIS MIGHT HAVE IN CASES ARISING THEREUNDER.  HERE CONGRESS HAS MADE
NO DISTINCTION ON THE BASIS OF VOLUME OF BUSINESS.  BY SEC. 15(A)(1) IT
HAS MADE UNLAWFUL THE SHIPMENT IN COMMERCE OF "ANY GOODS IN THE
PRODUCTION OF WHICH ANY EMPLOYEE WAS EMPLOYED IN VIOLATION OF" THE
OVERTIME AND MINIMUM WAGE REQUIREMENTS OF THE ACT.  THOUGH WE ASSUME
THAT SPORADIC OR OCCASIONAL SHIPMENTS OF INSUBSTANTIAL AMOUNTS OF GOODS
WERE NOT INTENDED TO BE INCLUDED IN THAT PROHIBITION, THERE IS NO
WARRANT FOR ASSUMING THAT REGULAR SHIPMENTS IN COMMERCE ARE TO BE
INCLUDED OR EXCLUDED DEPENDENT ON THEIR SIZE.  THAT HAS BEEN THE
CONSISTENT POSITION OF THE ADMINISTRATOR.  INTERPRETATIVE BULL.  NO. 5,
PAR. 9(1939), 1944-45 WAGE HOUR MAN.  21.  HIS RULINGS AND
INTERPRETATIONS, "WHILE NOT CONTROLLING UPON THE COURTS BY REASON OF
THEIR AUTHORITY, DO CONSTITUTE A BODY OF EXPERIENCE AND INFORMED
JUDGMENT TO WHICH COURTS AND LITIGANTS MAY PROPERLY RESORT FOR
GUIDANCE."  SKIDMORE V. SWIFT & CO., 323 U.S. 134, 140. 

WE STATED IN UNITED STATES V. DARBY, 312 U.S. 100, 123, "CONGRESS, TO
ATTAIN ITS OBJECTIVE IN THE SUPPRESSION OF NATIONWIDE COMPETITION IN
INTERSTATE COMMERCE BY GOODS PRODUCED UNDER SUBSTANDARD LABOR
CONDITIONS, HAS MADE NO DISTINCTION AS TO THE VOLUME OR AMOUNT OF
SHIPMENTS IN THE COMMERCE OR OF PRODUCTION FOR COMMERCE BY ANY
PARTICULAR SHIPPER OR PRODUCER.  IT RECOGNIZED THAT IN PRESENT-DAY
INDUSTRY, COMPETITION BY A SMALL PART MAY AFFECT THE WHOLE AND THAT THE
TOTAL EFFECT OF THE COMPETITION OF MANY SMALL PRODUCERS MAY BE GREAT." 
AND SEE WARREN-BRADSHAW CO. V. HALL, 317 U.S. 88, 91.  THAT VIEW IS
BORNE OUT BY THE LEGISLATIVE HISTORY OF THE ACT.  EARLIER DRAFTS HAD
EMBODIED THE "SUBSTANTIAL" STANDARD.  FN4  THESE WERE OMITTED FROM THE
COVERAGE PROVISIONS OF THE ONE WHICH BECAME THE LAW.  MOREOVER, ONE OF
THE EXEMPTIONS WRITTEN INTO THE ACT EXTENDS TO "ANY EMPLOYEE EMPLOYED
IN CONNECTION WITH THE PUBLICATION OF ANY WEEKLY OR SEMIWEEKLY
NEWSPAPER WITH A CIRCULATION OF LESS THAN THREE THOUSAND THE MAJOR PART
OF WHICH CIRCULATION IS WITHIN THE COUNTY WHERE PRINTED AND PUBLISHED
..."  SEC. 13(A)(8).  REPRESENTATIVE CREAL OF KENTUCKY PROPOSED THIS
EXEMPTION.  HE STATED THAT "UNDER THIS BILL, BECAUSE 1 OR 2 PERCENT OF
A PAPER'S CIRCULATION GOES OUTSIDE TO PEOPLE WHO WANT TO GET THE HOME
TOWN PAPER TO SEE WHETHER OR NOT LUCY GOT MARRIED, OR WHETHER SALLY'S
BABY HAS BEEN BORN YET, BECAUSE THAT INFINITESIMAL BIT OF THEIR
BUSINESS IS WITH PEOPLE OUTSIDE THE COUNTY, THESE PUBLISHERS FALL UNDER
THE PROVISIONS OF THIS BILL, WHEN ON EACH SIDE OF THIS LITTLE PRINTSHOP
ARE THE BUTCHER AND THE BAKER, WHO ARE EXEMPT AND WHO ARE FINANCIALLY
BETTER FIXED THAN HE IS."  83 CONG. REC. P. 7445.  NO SUCH EXEMPTION
FOR DAILY NEWSPAPERS WAS GRANTED.  FN5  NO EXEMPTION ON THE BASIS OF
VOLUME OF OUT-OF-STATE CIRCULATION WAS WRITTEN INTO THE ACT.  RATHER
THE EXEMPTION OF THE SMALL WEEKLIES OR SEMI-WEEKLIES SEEMS TO HAVE BEEN
ADOPTED ON THE ASSUMPTION THAT WITHOUT IT A NEWSPAPER WITH A REGULAR
OUT-OF-STATE CIRCULATION, NO MATTER HOW SMALL, WOULD BE UNDER THE ACT. 
THE CHOICE CONGRESS MADE WAS NOT THE EXEMPTION OF NEWSPAPERS WITH SMALL
OUT-OF-STATE CIRCULATIONS BUT THE EXEMPTION OF CERTAIN TYPES OF SMALL
NEWSPAPERS.  WE WOULD CHANGE THE NATURE OF THE EXEMPTION WHICH CONGRESS
SAW FIT TO GRANT, IF WE APPLIED THE MAXIM DE MINIMIS TO THIS TYPE OF
CASE.  WE WOULD ALSO DISREGARD THE PLAIN LANGUAGE OF SEC. 15(A)(1)
PROHIBITING THE SHIPMENT IN COMMERCE OF "ANY GOODS" IN THE PRODUCTION
OF WHICH "ANY EMPLOYEE" WAS EMPLOYED IN VIOLATION OF THE OVERTIME AND
MINIMUM WAGE REQUIREMENTS OF THE ACT. 

RESPONDENT ARGUES THAT TO BRING IT UNDER THE ACT, WHILE THE SMALL
WEEKLIES OR SEMI-WEEKLIES ARE EXEMPT BY REASON OF SEC. 13(A)(8), IS TO
SANCTION A DISCRIMINATION AGAINST THE DAILY PAPERS IN VIOLATION OF THE
PRINCIPLES ANNOUNCED IN GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233. 
VOLUME OF CIRCULATION, FREQUENCY OF ISSUE, AND AREA OF DISTRIBUTION ARE
SAID TO BE AN IMPROPER BASIS OF CLASSIFICATION.  MOREOVER, IT IS SAID
THAT THE ACT LAYS A DIRECT BURDEN ON THE PRESS IN VIOLATION OF THE
FIRST AMENDMENT.  THE GROSJEAN CASE IS NOT IN POINT HERE.  THERE THE
PRESS WAS SINGLED OUT FOR SPECIAL TAXATION AND THE TAX WAS GRADUATED IN
ACCORDANCE WITH VOLUME OF CIRCULATION.  NO SUCH VICE INHERES IN THIS
LEGISLATION.  AS THE PRESS HAS BUSINESS ASPECTS, IT HAS NO SPECIAL
IMMUNITY FROM LAWS APPLICABLE TO BUSINESS IN GENERAL.  ASSOCIATED PRESS
V. LABOR BOARD, 301 U.S. 103, 132-133.  AND THE EXEMPTION OF SMALL
WEEKLIES AND SEMI-WEEKLIES IS NOT A "DELIBERATE AND CALCULATED DEVICE"
TO PENALIZE A CERTAIN GROUP OF NEWSPAPERS.  GROSJEAN V. AMERICAN PRESS
CO., SUPRA, P. 250.  AS WE HAVE SEEN, IT WAS INSERTED TO PUT THOSE
PAPERS MORE ON A PARITY WITH OTHER SMALL TOWN ENTERPRISES.  83 CONG.
REC. 7445.  THE FIFTH AMENDMENT DOES NOT REQUIRE FULL AND UNIFORM
EXERCISE OF THE COMMERCE POWER.  CONGRESS MAY WEIGH RELATIVE NEEDS AND
RESTRICT THE APPLICATION OF A LEGISLATIVE POLICY TO LESS THAN THE
ENTIRE FIELD.  STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548; CURRIN V.
WALLACE, 306 U.S. 1, 13-14. 

WE HOLD THAT RESPONDENT IS ENGAGED IN THE PRODUCTION OF GOODS FOR
COMMERCE.  THAT, OF COURSE, DOES NOT MEAN THAT THESE PETITIONERS, ITS
EMPLOYEES, ARE COVERED BY THE ACT.  THE APPLICABILITY OF THE ACT TO
THEM IS DEPENDENT ON THE CHARACTER OF THEIR WORK.  KIRSCHBAUM CO. V.
WALLING, 316 U.S. 517, 524; WALLING V. JACKSONVILLE PAPER CO., SUPRA,
PP. 571-572.  WE EXPRESS NO OPINION ON THAT PHASE OF THE CASE, AS THE
NEW YORK APPELLATE COURTS DID NOT PASS ON IT.  SINCE THE JUDGMENT BELOW
MUST BE REVERSED, THE QUESTION WHETHER THE ACT IS APPLICABLE TO THESE
EMPLOYEES WILL BE OPEN ON THE REMAND OF THE CAUSE.  REVERSED. 

FN1  ABOUT 45 COPIES DAILY.  THERE APPEARS TO HAVE BEEN AN OUT-OF
STATE CIRCULATION OF 43, 46, AND 40 FOR THE YEARS ENDING MARCH 31,
1939, 1940, AND 1941 RESPECTIVELY. 

FN2  CF. DAVIS V. GOODMAN LUMBER CO., 133 F.2D 52, 53; SUN PUBLISHING
CO. V. WALLING, 140 F.2D 445, 448; NEW MEXICO PUBLIC SERVICE CO. V.
ENGEL, 145 F.2D 636, 640. 

FN3  SEC. 1 OF THAT ACT IS A STATEMENT OF THE POLICY OF CONGRESS.  IT
STATES THAT THE DENIAL BY EMPLOYERS OF THE RIGHT OF THE EMPLOYEES TO
BARGAIN COLLECTIVELY HAS THE INTENT OR EFFECT OF BURDENING OR
OBSTRUCTING COMMERCE BY "MATERIALLY AFFECTING" THE FLOW OF GOODS FROM
OR INTO THE CHANNELS OF COMMERCE OR BY "CAUSING DIMINUTION OF
EMPLOYMENT AND WAGES IN SUCH VOLUME AS SUBSTANTIALLY TO IMPAIR OR
DISRUPT" THE MARKET FOR SUCH GOODS. 

FN4  SEE, FOR EXAMPLE, H.R. 7200, 75TH CONG., 1ST SESS., INTRODUCED
MAY 24, 1937.  IT PROVIDED FOR A LABOR STANDARDS BOARD TO ADMINISTER
THE ACT.  THE BOARD WAS TO BE GIVEN THE POWER TO ESTABLISH MINIMUM
WAGES WHEN IT FOUND, INTER ALIA, THAT WAGES LOWER THAN A MINIMUM FAIR
WAGE WERE PAID TO EMPLOYEES "ENGAGED IN THE PRODUCTION OF GOODS WHICH
ARE SOLD OR SHIPPED TO A SUBSTANTIAL EXTENT IN INTERSTATE COMMERCE
..."  SEC. 5(A). 

THE CONFIDENTIAL COMMITTEE PRINT OF APRIL 13, 1938, CONTAINING A
PROPOSED AMENDMENT TO S. 2475, 75TH CONG., 3D SESS., AND EMBODIED IN
THE COMMITTEE PRINT OF APRIL 15, 1938, S. 2475, 75TH CONG., 3D SESS.,
WOULD HAVE LIMITED THE APPLICABILITY OF THE ACT TO EMPLOYERS "ENGAGED
IN COMMERCE IN ANY INDUSTRY AFFECTING COMMERCE  ..."  SECS. 4, 5.  IT
WAS FURTHER PROVIDED BY SEC. 6 OF THE DRAFT THAT THE SECRETARY OF LABOR
SHOULD, AFTER NOTICE AND HEARING, DETERMINE THE RELATION OF THE VARIOUS
INDUSTRIES TO COMMERCE.  ONLY IF THE SECRETARY FOUND THAT THE INDUSTRY
WAS (A) "DEPENDENT FOR ITS EXISTENCE UPON SUBSTANTIAL PURCHASES OR
SALES OF GOODS IN COMMERCE AND UPON TRANSPORTATION IN COMMERCE," OR (B)
"NATION-WIDE IN  ...  SCOPE," OR (C) RELATED TO COMMERCE "IN OTHER
RESPECTS CLOSE AND SUBSTANTIAL," COULD THE SECRETARY ISSUE AN ORDER
DECLARING THE INDUSTRY TO BE ONE AFFECTING COMMERCE AND THUS WITHIN THE
PURVIEW OF THE ACT. 

FN5  A NUMBER OF BILLS HAVE BEEN INTRODUCED SINCE THE PASSAGE OF THE
ACT TO SECURE A SIMILAR EXEMPTION FOR DAILY NEWSPAPERS, BUT NONE OF
THEM HAS PASSED.  SEE H.R. 7340, 76TH CONG., 1ST SESS.; S. 4385, 76TH
CONG., 3D SESS.; H.R. 64, H.R. 4208, S. 1310, S. 284, 77TH CONG., 1ST
SESS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MURPHY, DISSENTING. 

I AGREE THAT TO PRINT APPROXIMATELY 10,000 NEWSPAPERS A DAY AND
REGULARLY TO SEND 45 OF THEM, OR 1/2 OF 1%, OUT OF THE STATE IS TO
PRODUCE GOODS FOR INTERSTATE COMMERCE.  BUT I CANNOT AGREE THAT
CONGRESS MEANT TO INCLUDE A BUSINESS OF THAT NATURE WITHIN THE AMBIT OF
THE FAIR LABOR STANDARDS ACT OF 1938. 

THIS COURT, IN LABOR BOARD V. FAINBLATT, 306 U.S. 601, 606, STATED
THAT "THE AMOUNT OF THE COMMERCE REGULATED IS OF SPECIAL SIGNIFICANCE
ONLY TO THE EXTENT THAT CONGRESS MAY BE TAKEN TO HAVE EXCLUDED COMMERCE
OF SMALL VOLUME FROM THE OPERATION OF ITS REGULATORY MEASURE BY EXPRESS
PROVISION OR FAIR IMPLICATION."  CONCEDEDLY, CONGRESS HAS NOT EXCLUDED
COMMERCE OF SMALL VOLUME FROM THE COVERAGE OF THE FAIR LABOR STANDARDS
ACT BY "EXPRESS PROVISION."  BUT CERTAINLY THE "FAIR IMPLICATION" IS
ONE OF EXCLUSION.  ON NUMEROUS OCCASIONS WE HAVE POINTED OUT THAT
CONGRESS IN THIS ACT DID NOT EXERCISE THE FULL SCOPE OF ITS COMMERCE
POWER, KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 522-523, AND THAT
CONGRESS PLAINLY INDICATED ITS PURPOSE TO LEAVE LOCAL BUSINESS TO THE
PROTECTION OF THE STATES SO FAR AS WAGE AND HOUR PROBLEMS WERE
CONCERNED, WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564, 570;
PHILLIPS CO. V. WALLING, 324 U.S. 490, 497. 

IN MY OPINION, A COMPANY THAT PRODUCES 99 1/2% OF ITS PRODUCTS FOR
LOCAL COMMERCE IS ESSENTIALLY AND REALISTICALLY A LOCAL BUSINESS. 
TRUE, 1/2 OF 1% OF ITS PRODUCTION IS FOR INTERSTATE COMMERCE, THUS
SUBJECTING IT TO THE CONSTITUTIONAL POWER OF CONGRESS WHEN AND IF
EXERCISED.  BUT THAT FACT DOES NOT MAKE IT ANY LESS A LOCAL BUSINESS,
WHICH WE HAVE SAID CONGRESS PLAINLY EXCLUDED FROM THIS ACT. 

I WOULD THEREFORE AFFIRM THE JUDGMENT BELOW IN THIS RESPECT. 
..END :





















OKLA. PRESS PUB. CO. V. WALLING, 327 U.S. 186 


ARGUED OCTOBER 17, 18, 1945.  - DECIDED FEBRUARY 11, 1946.  - 147 F.2D
658 - 148 F.2D 57, AFFIRMED. 


1.  THE FAIR LABOR STANDARDS ACT, AS APPLIED TO THE BUSINESS OF
PUBLISHING AND DISTRIBUTING NEWSPAPERS, DOES NOT VIOLATE THE FIRST OR
FIFTH AMENDMENT OR EXCEED THE POWER OF CONGRESS UNDER THE COMMERCE
CLAUSE.  P. 192. 

2.  THE PROVISIONS OF SEC. 11(A) OF THE FAIR LABOR STANDARDS ACT,
AUTHORIZING THE ADMINISTRATOR TO INVESTIGATE CONDITIONS AND PRACTICES
OF EMPLOYMENT IN ANY INDUSTRY SUBJECT TO THE ACT, AND OF SEC. 9,
INCORPORATING THE PROVISIONS OF SEC. 9 OF THE FEDERAL TRADE COMMISSION
ACT AUTHORIZING THE ISSUANCE AND JUDICIAL ENFORCEMENT OF SUBPOENAS, DO
NOT VIOLATE THE PROHIBITIONS OF THE FOURTH AMENDMENT AGAINST
UNREASONABLE SEARCHES AND SEIZURES OR ANY OTHER PROVISION OF THE
CONSTITUTION.  PP. 194, 208, 214. 

3.  A REVIEW OF THE CASES APPLICABLE TO THE PRODUCTION OF CORPORATE
RECORDS AND PAPERS IN RESPONSE TO A SUBPOENA OR ORDER AUTHORIZED BY LAW
AND SAFEGUARDED BY JUDICIAL SANCTION DISCLOSES THAT THEY HOLD, IN
EFFECT, THAT: 

(A)  THE FIFTH AMENDMENT AFFORDS NO PROTECTION BY VIRTUE OF THE SELF
INCRIMINATION PROVISION, WHETHER FOR THE CORPORATION OR FOR ITS
OFFICERS.  P. 208. 

(B)  THE FOURTH AMENDMENT, IF APPLICABLE, GUARDS AGAINST ABUSE ONLY
BY WAY OF TOO MUCH INDEFINITENESS OR BREADTH IN THE THINGS REQUIRED TO
BE "PARTICULARLY DESCRIBED," IF THE INQUIRY IS ONE THE DEMANDING AGENCY
IS AUTHORIZED BY LAW TO MAKE AND THE MATERIALS SPECIFIED ARE RELEVANT,
THE GIST OF THE PROTECTION BEING THE REQUIREMENT THAT THE DISCLOSURE
SOUGHT SHALL NOT BE UNREASONABLE.  P. 208. 

(C)  THE REQUIREMENT OF "PROBABLE CAUSE, SUPPORTED BY OATH OR
AFFIRMATION," LITERALLY APPLICABLE IN THE CASE OF A WARRANT, IS
SATISFIED, IN THE CASE OF AN ORDER FOR PRODUCTION, BY THE COURT'S
DETERMINATION THAT THE INVESTIGATION IS AUTHORIZED BY CONGRESS AND IS
FOR A PURPOSE CONGRESS CAN ORDER AND THAT THE DOCUMENTS SOUGHT ARE
RELEVANT TO THE INQUIRY.  P. 209. 

(D)  BEYOND THIS, THE REQUIREMENT OF REASONABLENESS, INCLUDING
PARTICULARITY IN "DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS
TO BE SEIZED," ALSO LITERALLY APPLICABLE TO WARRANTS, COMES DOWN TO
SPECIFICATION OF THE DOCUMENTS TO BE PRODUCED, ADEQUATE BUT NOT
EXCESSIVE, FOR THE PURPOSES OF THE RELEVANT INQUIRY.  P. 209. 

4.  THERE WAS NO VIOLATION OF PETITIONERS' RIGHTS IN THESE CASES,
SINCE BOTH PETITIONERS WERE CORPORATIONS; THE ONLY RECORDS OR DOCUMENTS
SOUGHT WERE CORPORATE ONES; NO ELEMENT OF SELF-INCRIMINATION WAS
PRESENTED OR CLAIMED; ALL THE RECORDS SOUGHT WERE RELEVANT TO AN
INQUIRY FOR THE PURPOSE OF DETERMINING WHETHER PETITIONERS WERE SUBJECT
TO THE ACT AND, IF SO, WHETHER THEY WERE VIOLATING IT; AND SUCH AN
INQUIRY WAS AUTHORIZED BY SEC. 11(A) OF THE FAIR LABOR STANDARDS ACT. 
P. 209. 

5.  THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT
OF LABOR IS ENTITLED TO JUDICIAL ENFORCEMENT OF A SUBPOENA DUCES TECUM
ISSUED BY HIM PURSUANT TO SEC. 9 OF THE FAIR LABOR STANDARDS ACT IN THE
COURSE OF AN INVESTIGATION CONDUCTED PURSUANT TO SEC. 11(A) OF THE ACT,
WITHOUT A PRIOR ADJUDICATION THAT THE INDUSTRY OR ACTIVITY SOUGHT TO BE
INVESTIGATED IS COVERED BY THE PROVISIONS OF THE ACT.  PP. 209, 214. 

(A)  CONGRESS HAS AUTHORIZED THE ADMINISTRATOR, RATHER THAN THE
DISTRICT COURTS IN THE FIRST INSTANCE, TO DETERMINE THE QUESTION OF
COVERAGE IN THE PRELIMINARY INVESTIGATION OF POSSIBLE VIOLATIONS OF THE
FAIR LABOR STANDARDS ACT; IN DOING SO TO EXERCISE HIS SUBPOENA POWER
FOR SECURING EVIDENCE UPON THAT QUESTION BY OBTAINING THE PRODUCTION OF
RELEVANT BOOKS, RECORDS AND PAPERS; AND, IN CASE OF REFUSAL TO OBEY HIS
SUBPOENA, TO HAVE THE AID OF THE DISTRICT COURTS IN ENFORCING IT.  P.
214. 

(B)  THE EXPLICIT LANGUAGE OF SECS. 9 AND 11(A) OF THE ACT LEAVES NO
ROOM TO DOUBT THAT THE INTENT OF CONGRESS, IN AUTHORIZING
INVESTIGATIONS SUPPORTED BY SUBPOENAS AND ENFORCEMENT ORDERS, WAS TO
ENABLE THE ADMINISTRATOR TO DISCOVER AND PROCURE EVIDENCE, NOT TO PROVE
A PENDING CHARGE OR COMPLAINT, BUT TO ENABLE HIM TO MAKE ONE IF, IN HIS
JUDGMENT, THE FACTS THUS DISCOVERED SHOULD JUSTIFY DOING SO.  PP. 194,
197, 201, 214. 

(C)  SINCE THERE HAS BEEN NO CHANGE IN THE LANGUAGE OF THE STATUTE,
EXPRESSIONS IN COMMITTEE REPORTS ON SUBSEQUENT APPROPRIATIONS, COMING
LARGELY FROM ONE HOUSE OF CONGRESS, CAN NOT BE HELD TO CHANGE OR
QUALIFY THE PLAIN AND UNAMBIGUOUS WORDING OF THE STATUTE.  P. 197, N.
20. 

6.  IN SEC. 9 OF THE FEDERAL TRADE COMMISSION ACT (INCORPORATED IN
SEC. 9 OF THE FAIR LABOR STANDARDS ACT), WHICH AUTHORIZES THE
ADMINISTRATOR TO INVOKE THE AID OF THE COURT "IN CASE OF DISOBEDIENCE
OF THE SUBPOENA" AND AUTHORIZES THE COURT TO GIVE ASSISTANCE "IN CASE
OF CONTUMACY OR REFUSAL TO OBEY A SUBPOENA," CONGRESS MADE NO EXPRESS
REQUIREMENT OF ANY SHOWING OF "PROBABLE CAUSE"; AND ANY POSSIBLE
CONSTITUTIONAL REQUIREMENT OF THAT SORT WAS SATISFIED WHEN THE
ADMINISTRATOR, IN INVOKING THE AID OF A COURT TO ENFORCE A SUBPOENA
AGAINST A CORPORATION, SET FORTH THAT IT WAS A NEWSPAPER PUBLISHER,
THAT THE ADMINISTRATOR HAD REASON TO BELIEVE IT WAS VIOLATING THE ACT,
THAT IT WAS "ENGAGED IN COMMERCE AND IN THE PRODUCTION OF GOODS FOR
COMMERCE," THAT HE WAS PROCEEDING WITH HIS INVESTIGATION IN ACCORDANCE
WITH THE MANDATE OF CONGRESS, AND THAT THE SPECIFIED RECORDS SOUGHT
WERE RELEVANT FOR THAT PURPOSE.  P. 215. 

7.  THE ADMINISTRATOR'S INVESTIGATIVE FUNCTION, IN SEARCHING OUT
VIOLATIONS WITH A VIEW TO ENFORCING THE ACT, IS ESSENTIALLY THE SAME AS
THE GRAND JURY'S OR THE COURT'S IN ISSUING OTHER PRETRIAL ORDERS FOR
THE DISCOVERY OF EVIDENCE, AND IS GOVERNED BY THE SAME LIMITATIONS -
THAT HE SHALL NOT ACT ARBITRARILY OR IN EXCESS OF HIS STATUTORY
AUTHORITY.  P. 216. 

OKLAHOMA PRESS PUBLISHING CO. V. WALLING, WAGE AND HOUR
ADMINISTRATOR. 

NO. 61.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT* . 

*TOGETHER WITH NO. 63, NEWS PRINTING CO., INC. V. WALLING, WAGE AND
HOUR ADMINISTRATOR, ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE THIRD CIRCUIT.  ARGUED AND DECIDED ON THE SAME DATES. 

NO. 61.  UPON APPLICATION OF THE ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION OF THE DEPARTMENT OF LABOR, A DISTRICT COURT ISSUED AN ORDER
DIRECTING THAT HE BE GIVEN ACCESS TO CERTAIN DOCUMENTS AND RECORDS OF A
NEWSPAPER PUBLISHING CORPORATION, PURSUANT TO SECS. 9 AND 11(A) OF THE
FAIR LABOR STANDARDS ACT.  7 WAGE HOUR REP. 656.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  147 F.2D 658.  THIS COURT GRANTED CERTIORARI.  325
U.S. 845.  AFFIRMED, P. 218. 

NO. 63.  A DISTRICT COURT DENIED AN APPLICATION OF THE ADMINISTRATOR
OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR FOR AN ORDER
TO ENFORCE A SUBPOENA DUCES TECUM ISSUED BY HIM PURSUANT TO SEC. 9 OF
THE FAIR LABOR STANDARDS ACT REQUIRING THE PRODUCTION OF CERTAIN BOOKS,
RECORDS AND DOCUMENTS OF A NEWSPAPER PUBLISHING CORPORATION.  49
F.SUPP.  659.  THE CIRCUIT COURT OF APPEALS REVERSED.  148 F.2D 57. 
THIS COURT GRANTED CERTIORARI.  325 U.S. 845.  AFFIRMED, P. 218. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THESE CASES BRING FOR DECISION IMPORTANT QUESTIONS CONCERNING THE
ADMINISTRATOR'S RIGHT TO JUDICIAL ENFORCEMENT OF SUBPOENAS DUCES TECUM
ISSUED BY HIM IN THE COURSE OF INVESTIGATIONS CONDUCTED PURSUANT TO
SEC. 11(A) OF THE FAIR LABOR STANDARDS ACT.  52 STAT. 1060.  HIS CLAIM
IS FOUNDED DIRECTLY UPON SEC. 9, WHICH INCORPORATES THE ENFORCEMENT
PROVISIONS OF SECS. 9 AND 10 OF THE FEDERAL TRADE COMMISSION ACT, 38
STAT. 717.  FN1  THE SUBPOENAS SOUGHT THE PRODUCTION OF SPECIFIED
RECORDS TO DETERMINE WHETHER PETITIONERS WERE VIOLATING THE FAIR LABOR
STANDARDS ACT, INCLUDING RECORDS RELATING TO COVERAGE.  PETITIONERS,
NEWSPAPER PUBLISHING CORPORATIONS, MAINTAIN THAT THE ACT IS NOT
APPLICABLE TO THEM, FOR CONSTITUTIONAL AND OTHER REASONS, AND INSIST
THAT THE QUESTION OF COVERAGE MUST BE ADJUDICATED BEFORE THE SUBPOENAS
MAY BE ENFORCED. 

IN NO. 61, INVOLVING THE OKLAHOMA PRESS PUBLISHING COMPANY, THE
CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT HAS REJECTED THIS VIEW,
HOLDING THAT THE ADMINISTRATOR WAS ENTITLED TO ENFORCEMENT UPON SHOWING
OF "PROBABLE CAUSE," WHICH IT FOUND HAD BEEN MADE.  147 F.2D 658. 
ACCORDINGLY IT AFFIRMED THE DISTRICT COURT'S ORDER DIRECTING THAT THE
ADMINISTRATOR BE GIVEN ACCESS TO THE RECORDS AND DOCUMENTS SPECIFIED. 
FN2 

IN NO. 63, THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT
LIKEWISE REJECTED THE COMPANY'S POSITION, ONE JUDGE DISSENTING ON THE
GROUND THAT PROBABLE CAUSE HAD NOT BEEN SHOWN.  148 F.2D 57.  IT
ACCORDINGLY REVERSED THE DISTRICT COURT'S ORDER OF DISMISSAL IN THE
PROCEEDING TO SHOW CAUSE, WHICH IN EFFECT DENIED ENFORCEMENT FOR WANT
OF A SHOWING OF COVERAGE.  49 F.SUPP.  659.  FN3 THE COURT OF APPEALS
THOUGHT THAT REQUIRING THE ADMINISTRATOR "TO MAKE PROOF OF COVERAGE
WOULD BE TO TURN THE PROCEEDING INTO A SUIT TO DECIDE A QUESTION WHICH
MUST BE DETERMINED BY THE ADMINISTRATOR IN THE COURSE OF HIS
INVESTIGATION" AND RELIED UPON ENDICOTT JOHNSON CORP. V. PERKINS, 317
U.S. 501, AS BEING PERSUASIVE THAT THIS COULD NOT BE DONE.  REGARDING
THE SUBPOENA AS CONTAINING NO UNREASONABLE DEMAND, IT CONCEIVED THE
RETURN AND AFFIDAVITS FILED BY THE COMPANY, TOGETHER WITH THE
ADMINISTRATOR'S ALLEGATIONS OF COVERAGE,  FN4  AS A SHOWING SUFFICIENT
TO REQUIRE ENFORCEMENT.  HENCE IT DIRECTED THAT THE DISTRICT COURT'S
DISCRETION BE EXERCISED WITH THAT EFFECT. 

BECAUSE OF THE IMPORTANCE OF THE ISSUES FOR ADMINISTRATION OF THE ACT
AND ALSO ON ACCOUNT OF THE DIFFERENCES IN THE GROUNDS FOR THE TWO
DECISIONS, AS WELL AS BETWEEN THEM AND DECISIONS FROM OTHER CIRCUITS,
FN5  CERTIORARI WAS GRANTED IN BOTH CASES.  325 U.S. 845. 

THE ISSUES HAVE TAKEN WIDE RANGE.  THEY ARE SUBSTANTIALLY THE SAME IN
THE TWO CAUSES, EXCEPT IN ONE RESPECT TO BE NOTED.  FN6  IN ADDITION TO
AN ARGUMENT FROM CONGRESS' INTENT, RELIANCE FALLS UPON VARIOUS
CONSTITUTIONAL PROVISIONS, INCLUDING THE FIRST, FOURTH AND FIFTH
AMENDMENTS, AS WELL AS THE LIMITED REACH OF THE COMMERCE CLAUSE, TO
SHOW THAT THE ADMINISTRATOR'S CONDUCT AND THE RELIEF HE SEEKS ARE
FORBIDDEN. 

I. 

COLORING ALMOST ALL OF PETITIONERS' POSITION, AS WE UNDERSTAND THEM,
IS A PRIMARY MISCONCEPTION THAT THE FIRST AMENDMENT KNOCKS OUT ANY
POSSIBLE APPLICATION OF THE FAIR LABOR STANDARDS ACT TO THE BUSINESS OF
PUBLISHING AND DISTRIBUTING NEWSPAPERS.  THE ARGUMENT HAS TWO PRONGS. 

THE BROADSIDE ASSERTION THAT PETITIONERS "COULD NOT BE COVERED BY THE
ACT," FOR THE REASON THAT "APPLICATION OF THIS ACT TO ITS NEWSPAPER
PUBLISHING BUSINESS WOULD VIOLATE ITS RIGHTS AS GUARANTEED BY THE FIRST
AMENDMENT," IS WITHOUT MERIT.  ASSOCIATED PRESS V. LABOR BOARD, 301
U.S. 103, AND ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1; MABEE V.
WHITE PLAINS PUBLISHING CO., 327 U.S. 178.  FN7  IF CONGRESS CAN REMOVE
OBSTRUCTIONS TO COMMERCE BY REQUIRING PUBLISHERS TO BARGAIN
COLLECTIVELY WITH EMPLOYEES AND REFRAIN FROM INTERFERING WITH THEIR
RIGHTS OF SELF-ORGANIZATION, MATTERS CLOSELY RELATED TO ELIMINATING LOW
WAGES AND LONG HOURS, CONGRESS LIKEWISE MAY STRIKE DIRECTLY AT THOSE
EVILS WHEN THEY ADVERSELY AFFECT COMMERCE.  UNITED STATES V. DARBY, 312
U.S. 100, 116, 117.  THE AMENDMENT DOES NOT FORBID THIS OR OTHER
REGULATION WHICH ENDS IN NO RESTRAINT UPON EXPRESSION OR IN ANY OTHER
EVIL OUTLAWED BY ITS TERMS AND PURPOSES.  FN8 

PETITIONERS' NARROWER ARGUMENT, OF ALLEGEDLY INVALID CLASSIFICATION,
FN9  ARISES FROM THE STATUTORY EXEMPTIONS AND MAY BE SHORTLY
DISMISSED.  THE INTIMATION THAT THE ACT FALLS BY REASON OF THE
EXCLUSION OF SEAMEN, FARM WORKERS AND OTHERS BY SEC. 13(A) IS HARDLY
MORE THAN A SUGGESTION AND IS DISMISSED ACCORDINGLY.  CF. BUCK V. BELL,
274 U.S. 200, 208.  THE CONTENTION DRAWN FROM THE EXEMPTION OF
EMPLOYEES OF SMALL NEWSPAPERS BY SEC. 13(A)(8) DESERVES ONLY SLIGHTLY
MORE ATTENTION.  FN10  IT SEEMS TO BE TWOFOLD, THAT THE AMENDMENT
FORBIDS CONGRESS TO "REGULATE THE PRESS BY CLASSIFYING IT" AT ALL AND
IN ANY EVENT THAT IT CANNOT USE VOLUME OF CIRCULATION OR SIZE AS A
FACTOR IN THE CLASSIFICATION.  FN11 

RELIANCE UPON GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, TO
SUPPORT THESE CLAIMS IS MISPLACED.  THERE THE STATE STATUTE SINGLED OUT
NEWSPAPERS FOR SPECIAL TAXATION AND WAS HELD IN EFFECT TO GRADUATE THE
TAX IN ACCORDANCE WITH VOLUME OF CIRCULATION.  HERE THERE WAS NO
SINGLING OUT OF THE PRESS FOR TREATMENT DIFFERENT FROM THAT ACCORDED
OTHER BUSINESS IN GENERAL.  RATHER THE ACT'S PURPOSE WAS TO PLACE
PUBLISHERS OF NEWSPAPERS UPON THE SAME PLANE WITH OTHER BUSINESSES AND
THE EXEMPTION FOR SMALL NEWSPAPERS HAD THE SAME OBJECT.  83 CONG. REC.
7445.  NOTHING IN THE GROSJEAN CASE FORBIDS CONGRESS TO EXEMPT SOME
PUBLISHERS BECAUSE OF SIZE FROM EITHER A TAX OR A REGULATION WHICH
WOULD BE VALID IF APPLIED TO ALL. 

WHAT HAS BEEN SAID ALSO DISPOSES OF THE CONTENTION DRAWN FROM THE
SCOPE OF THE COMMERCE POWER AND ITS APPLICABILITY TO THE PUBLISHING
BUSINESS CONSIDERED INDEPENDENTLY OF THE AMENDMENT'S INFLUENCE. 
ASSOCIATED PRESS V. LABOR BOARD, SUPRA; ASSOCIATED PRESS V. UNITED
STATES, SUPRA.

                      II. 

OTHER QUESTIONS PERTAIN TO WHETHER ENFORCEMENT OF THE SUBPOENAS AS
DIRECTED BY THE CIRCUIT COURTS OF APPEALS WILL VIOLATE ANY OF
PETITIONERS' RIGHTS SECURED BY THE FOURTH AMENDMENT AND RELATED ISSUES
CONCERNING CONGRESS' INTENT.  IT IS CLAIMED THAT ENFORCEMENT WOULD
PERMIT THE ADMINISTRATOR TO CONDUCT GENERAL FISHING EXPEDITIONS INTO
PETITIONERS' BOOKS, RECORDS AND PAPERS, IN ORDER TO SECURE EVIDENCE
THAT THEY HAVE VIOLATED THE ACT, WITHOUT A PRIOR CHARGE OR COMPLAINT
AND SIMPLY TO SECURE INFORMATION UPON WHICH TO BASE ONE, ALL ALLEGEDLY
IN VIOLATION OF THE AMENDMENT'S SEARCH AND SEIZURE PROVISIONS. 
SUPPORTING THIS IS AN ARGUMENT THAT CONGRESS DID NOT INTEND SUCH USE TO
BE MADE OF THE DELEGATED POWER, WHICH RESTS IN PART UPON ASSERTED
CONSTITUTIONAL IMPLICATIONS, BUT PRIMARILY UPON THE REPORTS OF
LEGISLATIVE COMMITTEES, PARTICULARLY IN THE HOUSE OF REPRESENTATIVES,
MADE IN PASSING UPON APPROPRIATIONS FOR YEARS SUBSEQUENT TO THE ACT'S
EFFECTIVE DATE.  FN12 

THE SHORT ANSWER TO THE FOURTH AMENDMENT OBJECTIONS IS THAT THE
RECORDS IN THESE CASES PRESENT NO QUESTION OF ACTUAL SEARCH AND
SEIZURE, BUT RAISE ONLY THE QUESTION WHETHER ORDERS OF COURT FOR THE
PRODUCTION OF SPECIFIED RECORDS HAVE BEEN VALIDLY MADE; AND NO
SUFFICIENT SHOWING APPEARS TO JUSTIFY SETTING THEM ASIDE.  FN13  NO
OFFICER OR OTHER PERSON HAS SOUGHT TO ENTER PETITIONERS' PREMISES
AGAINST THEIR WILL, TO SEARCH THEM, OR TO SEIZE OR EXAMINE THEIR BOOKS,
RECORDS OR PAPERS WITHOUT THEIR ASSENT, OTHERWISE THAN PURSUANT TO
ORDERS OF COURT AUTHORIZED BY LAW AND MADE AFTER ADEQUATE OPPORTUNITY
TO PRESENT OBJECTIONS, WHICH IN FACT WERE MADE.  FN14  NOR HAS ANY
OBJECTION BEEN TAKEN TO THE BREADTH OF THE SUBPOENAS OR TO ANY OTHER
SPECIFIC DEFECT WHICH WOULD INVALIDATE THEM.  FN15 

WHAT PETITIONERS SEEK IS NOT TO PREVENT AN UNLAWFUL SEARCH AND
SEIZURE.  IT IS RATHER A TOTAL IMMUNITY TO THE ACT'S PROVISIONS,
APPLICABLE TO ALL OTHERS SIMILARLY SITUATED, REQUIRING THEM TO SUBMIT
THEIR PERTINENT RECORDS FOR THE ADMINISTRATOR'S INSPECTION UNDER EVERY
JUDICIAL SAFEGUARD, AFTER AND ONLY AFTER AN ORDER OF COURT MADE
PURSUANT TO AND IN EXACT COMPLIANCE WITH AUTHORITY GRANTED BY
CONGRESS.  THIS BROAD CLAIM OF IMMUNITY NO DOUBT IS INDUCED BY
PETITIONERS' FIRST AMENDMENT CONTENTIONS.  BUT BEYOND THEM IT IS RESTED
ALSO UPON CONCEPTIONS OF THE FOURTH AMENDMENT EQUALLY LACKING IN
MERIT. 

PETITIONERS' PLEA THAT THE FOURTH AMENDMENT PLACES THEM SO FAR ABOVE
THE LAW THAT THEY ARE BEYOND THE REACH OF CONGRESSIONAL AND JUDICIAL
POWER AS THOSE POWERS HAVE BEEN EXERTED HERE ONLY RAISES THE GHOST OF
CONTROVERSY LONG SINCE SETTLED ADVERSELY TO THEIR CLAIM.  FN16  THEY
HAVE ADVANCED NO CLAIM FOUNDED ON THE FIFTH AMENDMENT'S SOMEWHAT
RELATED GUARANTY AGAINST SELF-INCRIMINATION, WHETHER OR NOT FOR THE
SUFFICIENT REASON AMONG OTHERS THAT THIS PRIVILEGE GIVES NO PROTECTION
TO CORPORATIONS OR THEIR OFFICERS AGAINST THE PRODUCTION OF CORPORATE
RECORDS PURSUANT TO LAWFUL JUDICIAL ORDER, WHICH IS ALL THESE CASES
INVOLVE.  FN17 

THE CITED AUTHORITIES WOULD BE SUFFICIENT TO DISPOSE OF THE FOURTH
AMENDMENT ARGUMENT, AND MORE RECENT DECISIONS CONFIRM THEIR RULING. 
FN18  PETITIONERS HOWEVER ARE INSISTENT IN THEIR CONTRARY VIEWS, BOTH
UPON THE CONSTITUTIONAL PHASES AND IN THEIR ASSERTED BEARING UPON THE
INTENTION OF CONGRESS.  WHILE WE THINK THOSE VIEWS REFLECT A CONFUSION
NOT JUSTIFIED BY THE ACTUAL STATE OF THE DECISIONS, THE CONFUSION HAS
ACQUIRED SOME CURRENCY, AS THE DIVIDED STATE OF OPINION AMONG THE
CIRCUITS SHOWS.  FN19  SINCE THE MATTER IS OF SOME IMPORTANCE, IN ORDER
TO REMOVE ANY POSSIBLE BASIS FOR LIKE MISUNDERSTANDING IN THE FUTURE,
WE GIVE MORE DETAILED CONSIDERATION TO THE VIEWS ADVANCED AND TO THE
AUTHORITIES THAN WOULD OTHERWISE BE NECESSARY. 

THERE ARE TWO DIFFICULTIES WITH PETITIONERS' THEORY CONCERNING THE
INTENT OF CONGRESS.  ONE IS THAT THE ARGUMENT FROM THE SO-CALLED
LEGISLATIVE HISTORY FLIES IN THE FACE OF THE POWERS EXPRESSLY GRANTED
TO THE ADMINISTRATOR AND THE COURTS BY SECS. 9 AND 11(A), SO FLATLY
THAT TO ACCEPT PETITIONERS' VIEW WOULD LARGELY NULLIFY THEM.  FN20
FURTHERMORE THE EXCERPTED HISTORY FROM THE LATER APPROPRIATION MATTERS
DOES NOT GIVE THE FULL STORY AND WHEN THAT IS CONSIDERED THE CLAIMED
INTERPRETATION IS NOT MADE OUT, REGARDLESS OF ITS RETROSPECTIVE
ASPECT.  FN21  MOREOVER, THE STATUTE'S LANGUAGE LEAVES NO ROOM TO DOUBT
THAT CONGRESS INTENDED TO AUTHORIZE JUST WHAT THE ADMINISTRATOR DID AND
SOUGHT TO HAVE THE COURTS DO.  FN22  SECTION 11(A) EXPRESSLY AUTHORIZES
THE ADMINISTRATOR TO "ENTER AND INSPECT SUCH PLACES AND SUCH RECORDS
(AND MAKE SUCH TRANSCRIPTIONS THEREOF), QUESTION SUCH EMPLOYEES, AND
INVESTIGATE SUCH FACTS, CONDITIONS, PRACTICES, OR MATTERS AS HE MAY
DEEM NECESSARY OR APPROPRIATE TO DETERMINE WHETHER ANY PERSON HAS
VIOLATED ANY PROVISION OF THIS ACT, OR WHICH MAY AID IN THE ENFORCEMENT
OF THE PROVISIONS OF THIS ACT."  FN23  THE SUBPOENA POWER CONFERRED BY
SEC. 9(THROUGH ADOPTION OF SEC. 9 OF THE FEDERAL TRADE COMMISSION ACT)
IS GIVEN IN AID OF THIS INVESTIGATION AND, IN CASE OF DISOBEDIENCE, THE
DISTRICT COURTS ARE CALLED UPON TO ENFORCE THE SUBPOENA THROUGH THEIR
CONTEMPT POWERS,  FN24  WITHOUT EXPRESS CONDITION REQUIRING SHOWING OF
COVERAGE.  FN25 

IN VIEW OF THESE PROVISIONS, WITH WHICH THE ADMINISTRATOR'S ACTION
WAS IN EXACT COMPLIANCE, THIS CASE PRESENTS AN INSTANCE OF "THE MOST
EXPLICIT LANGUAGE"  FN26  WHICH LEAVES NO ROOM FOR QUESTIONING
CONGRESS' INTENT.  THE VERY PURPOSE OF THE SUBPOENA AND OF THE ORDER,
AS OF THE AUTHORIZED INVESTIGATION, IS TO DISCOVER AND PROCURE
EVIDENCE, NOT TO PROVE A PENDING CHARGE OR COMPLAINT, BUT UPON WHICH TO
MAKE ONE IF, IN THE ADMINISTRATOR'S JUDGMENT, THE FACTS THUS DISCOVERED
SHOULD JUSTIFY DOING SO.    ACCORDINGLY, IF SECS. 9 AND 11(A) ARE NOT
TO BE CONSTRUED AS AUTHORIZING ENFORCEMENT OF THE ORDERS, IT MUST BE,
AS PETITIONERS SAY, BECAUSE THIS CONSTRUCTION WOULD MAKE THEM SO
DUBIOUS CONSTITUTIONALLY AS TO COMPEL RESORT TO AN INTERPRETATION WHICH
SAVES RATHER THAN TO ONE WHICH DESTROYS OR IS LIKELY TO DO SO. THE
COURT HAS ADOPTED THIS COURSE AT LEAST ONCE IN THIS TYPE OF CASE.  FN27
BUT IF THE SAME COURSE IS FOLLOWED HERE, THE JUDGMENTS MUST BE
REVERSED WITH THE EFFECT OF CUTTING SQUARELY INTO THE POWER OF
CONGRESS.  FOR TO DENY THE VALIDITY OF THE ORDERS WOULD BE IN EFFECT TO
DENY NOT ONLY CONGRESS' POWER TO ENACT THE PROVISIONS SUSTAINING THEM,
BUT ALSO ITS AUTHORITY TO DELEGATE EFFECTIVE POWER TO INVESTIGATE
VIOLATIONS OF ITS OWN LAWS, IF NOT PERHAPS ALSO ITS OWN POWER TO MAKE
SUCH INVESTIGATIONS. 

                                 III. 

THE PRIMARY SOURCE OF MISCONCEPTION CONCERNING THE FOURTH AMENDMENT'S
FUNCTION LIES PERHAPS IN THE IDENTIFICATION OF CASES INVOLVING SO
CALLED "FIGURATIVE" OR "CONSTRUCTIVE" SEARCH WITH CASES OF ACTUAL
SEARCH AND SEIZURE.  FN28  ONLY IN THIS ANALOGICAL SENSE CAN ANY
QUESTION RELATED TO SEARCH AND SEIZURE BE THOUGHT TO ARISE IN
SITUATIONS WHICH, LIKE THE PRESENT ONES, INVOLVE ONLY THE VALIDITY OF
AUTHORIZED JUDICIAL ORDERS. 

THE CONFUSION IS DUE IN PART TO THE FACT THAT THIS IS THE VERY KIND
OF SITUATION IN WHICH THE DECISIONS HAVE MOVED WITH VARIANT DIRECTION,
ALTHOUGH WITHOUT ACTUAL CONFLICT WHEN ALL OF THE FACTS IN EACH CASE ARE
TAKEN INTO ACCOUNT.  NOTWITHSTANDING THIS, EMPHASIS AND TONE AT TIMES
ARE HIGHLY CONTRASTING, WITH CONSEQUENT OVERTONES OF DOUBT AND
CONFUSION FOR VALIDITY OF THE STATUTE OR ITS APPLICATION.  THE SUBJECT
MATTER PERHAPS TOO OFTEN HAS BEEN GENERATIVE OF HEAT RATHER THAN LIGHT,
FOR THE BORDER ALONG WHICH THE CASES LIE IS ONE WHERE GOVERNMENT
INTRUDES UPON DIFFERENT AREAS OF PRIVACY AND THE HISTORY OF SUCH
INTRUSIONS HAS BROUGHT FORTH SOME OF THE STOUTEST AND MOST EFFECTIVE
INSTANCES OF RESISTANCE TO EXCESS OF GOVERNMENTAL AUTHORITY.  FN29 

THE MATTER OF REQUIRING THE PRODUCTION OF BOOKS AND RECORDS TO SECURE
EVIDENCE IS NOT AS ONE-SIDED, IN THIS KIND OF SITUATION, AS THE MOST
EXTREME EXPRESSIONS OF EITHER EMPHASIS WOULD INDICATE.  WITH SOME
OBVIOUS EXCEPTIONS, THERE HAS ALWAYS BEEN A REAL PROBLEM OF BALANCING
THE PUBLIC INTEREST AGAINST PRIVATE SECURITY.  THE CASES FOR PROTECTION
OF THE OPPOSING INTERESTS ARE STATED AS CLEARLY AS ANYWHERE PERHAPS IN
THE SUMMATIONS, QUOTED IN THE MARGIN,  FN30  OF TWO FORMER MEMBERS OF
THIS COURT, EACH OF WHOM WAS FULLY ALIVE TO THE DUAL NECESSITY OF
SAFEGUARDING ADEQUATELY THE PUBLIC AND THE PRIVATE INTEREST.  BUT
EMPHASIS HAS NOT ALWAYS BEEN SO APTLY PLACED. 

THE CONFUSION OBSCURING THE BASIC DISTINCTION BETWEEN ACTUAL AND SO
CALLED "CONSTRUCTIVE" SEARCH HAS BEEN ACCENTUATED WHERE THE RECORDS AND
PAPERS SOUGHT ARE OF CORPORATE CHARACTER, AS IN THESE CASES. 
HISTORICALLY PRIVATE CORPORATIONS HAVE BEEN SUBJECT TO BROAD VISITORIAL
POWER, BOTH IN ENGLAND AND IN THIS COUNTRY.  AND IT LONG HAS BEEN
ESTABLISHED THAT CONGRESS MAY EXERCISE WIDE INVESTIGATIVE POWER OVER
THEM, ANALOGOUS TO THE VISITORIAL POWER OF THE INCORPORATING STATE,
FN31 WHEN THEIR ACTIVITIES TAKE PLACE WITHIN OR AFFECT INTERSTATE
COMMERCE.  FN32  CORRESPONDINGLY IT HAS BEEN SETTLED THAT CORPORATIONS
ARE NOT ENTITLED TO ALL OF THE CONSTITUTIONAL PROTECTIONS WHICH PRIVATE
INDIVIDUALS HAVE IN THESE AND RELATED MATTERS.  AS HAS BEEN NOTED, THEY
ARE NOT AT ALL WITHIN THE PRIVILEGE AGAINST SELF-INCRIMINATION,
ALTHOUGH THIS COURT MORE THAN ONCE HAS SAID THAT THE PRIVILEGE RUNS
VERY CLOSELY WITH THE FOURTH AMENDMENT'S SEARCH AND SEIZURE
PROVISIONS.  FN33 IT IS ALSO SETTLED THAT AN OFFICER OF THE COMPANY
CANNOT REFUSE TO PRODUCE ITS RECORDS IN HIS POSSESSION, UPON THE PLEA
THAT THEY EITHER WILL INCRIMINATE HIM OR MAY INCRIMINATE IT.  FN34
AND, ALTHOUGH THE FOURTH AMENDMENT HAS BEEN HELD APPLICABLE TO
CORPORATIONS  FN35  NOTWITHSTANDING THEIR EXCLUSION FROM THE PRIVILEGE
AGAINST SELF-INCRIMINATION, THE SAME LEADING CASE OF WILSON V. UNITED
STATES, 221 U.S. 361, DISTINGUISHING THE EARLIER QUITE DIFFERENT ONE OF
BOYD V. UNITED STATES, 116 U.S. 616,  FN36  HELD THE PROCESS NOT
INVALID UNDER THE FOURTH AMENDMENT, ALTHOUGH IT BROADLY REQUIRED THE
PRODUCTION OF COPIES OF LETTERS AND TELEGRAMS "SIGNED OR PURPORTING TO
BE SIGNED BY THE PRESIDENT OF SAID COMPANY DURING THE (MONTHS) OF MAY
AND JUNE, 1909; IN REGARD TO AN ALLEGED VIOLATION OF THE STATUTES OF
THE UNITED STATES BY C.C. WILSON."  221 U.S. AT 368, 375. 

THE WILSON CASE HAS SET THE PATTERN OF LATER DECISIONS AND HAS BEEN
FOLLOWED WITHOUT QUALIFICATION OF ITS RULING.  FN37  CONTRARY
SUGGESTIONS OR IMPLICATIONS MAY BE EXPLAINED AS DICTA; FN38  OR BY
VIRTUE OF THE PRESENCE OF AN ACTUAL ILLEGAL SEARCH AND SEIZURE, THE
EFFECTS OF WHICH THE GOVERNMENT SOUGHT LATER TO OVERCOME BY APPLYING
THE MORE LIBERAL DOCTRINE DEVELOPED IN RELATION TO "CONSTRUCTIVE
SEARCH"; FN39 OR BY THE SCOPE OF THE SUBPOENA IN CALLING FOR DOCUMENTS
SO BROADLY OR INDEFINITELY THAT IT WAS THOUGHT TO APPROACH IN THIS
RESPECT THE CHARACTER OF A GENERAL WARRANT OR WRIT OF ASSISTANCE,
ODIOUS IN BOTH ENGLISH AND AMERICAN HISTORY N40.  BUT NO CASE HAS BEEN
CITED OR FOUND IN WHICH, UPON SIMILAR FACTS, THE WILSON DOCTRINE HAS
NOT BEEN FOLLOWED.  NOR IN ANY HAS CONGRESS BEEN ADJUDGED TO HAVE
EXCEEDED ITS AUTHORITY, WITH THE SINGLE EXCEPTION OF BOYD V. UNITED
STATES, SUPRA, WHICH DIFFERED FROM BOTH THE WILSON CASE AND THE PRESENT
ONES IN PROVIDING A DRASTICALLY INCRIMINATING METHOD OF ENFORCEMENT
FN41  WHICH WAS APPLIED TO THE PRODUCTION OF PARTNERS' BUSINESS
RECORDS.  WHATEVER LIMITS THERE MAY BE TO CONGRESSIONAL POWER TO
PROVIDE FOR THE PRODUCTION OF CORPORATE OR OTHER BUSINESS RECORDS,
THEREFORE, THEY ARE NOT TO BE FOUND, IN VIEW OF THE COURSE OF PRIOR
DECISIONS, IN ANY SUCH ABSOLUTE OR UNIVERSAL IMMUNITY AS PETITIONERS
SEEK. 

WITHOUT ATTEMPT TO SUMMARIZE OR ACCURATELY DISTINGUISH ALL OF THE
CASES, THE FAIR DISTILLATION, IN SO FAR AS THEY APPLY MERELY TO THE
PRODUCTION OF CORPORATE RECORDS AND PAPERS IN RESPONSE TO A SUBPOENA OR
ORDER AUTHORIZED BY LAW AND SAFEGUARDED BY JUDICIAL SANCTION, SEEMS TO
BE THAT THE FIFTH AMENDMENT AFFORDS NO PROTECTION BY VIRTUE OF THE SELF
INCRIMINATION PROVISION, WHETHER FOR THE CORPORATION OR FOR ITS
OFFICERS; AND THE FOURTH, IF APPLICABLE, AT THE MOST GUARDS AGAINST
ABUSE ONLY BY WAY OF TOO MUCH INDEFINITENESS OR BREADTH IN THE THINGS
REQUIRED TO BE "PARTICULARLY DESCRIBED," IF ALSO THE INQUIRY IS ONE THE
DEMANDING AGENCY IS AUTHORIZED BY LAW TO MAKE AND THE MATERIALS
SPECIFIED ARE RELEVANT.  THE GIST OF THE PROTECTION IS IN THE
REQUIREMENT, EXPRESSED IN TERMS, THAT THE DISCLOSURE SOUGHT SHALL NOT
BE UNREASONABLE. 

AS THIS HAS TAKEN FORM IN THE DECISIONS, THE FOLLOWING SPECIFIC
RESULTS HAVE BEEN WORKED OUT.  IT IS NOT NECESSARY, AS IN THE CASE OF A
WARRANT, THAT A SPECIFIC CHARGE OR COMPLAINT OF VIOLATION OF LAW BE
PENDING OR THAT THE ORDER BE MADE PURSUANT TO ONE.  IT IS ENOUGH THAT
THE INVESTIGATION BE FOR A LAWFULLY AUTHORIZED PURPOSE, WITHIN THE
POWER OF CONGRESS TO COMMAND.  THIS HAS BEEN RULED MOST OFTEN PERHAPS
IN RELATION TO GRAND JURY INVESTIGATIONS,  FN42  BUT ALSO FREQUENTLY IN
RESPECT TO GENERAL OR STATISTICAL INVESTIGATIONS AUTHORIZED BY
CONGRESS.  FN43  THE REQUIREMENT OF "PROBABLE CAUSE, SUPPORTED BY OATH
OR AFFIRMATION," LITERALLY APPLICABLE IN THE CASE OF A WARRANT, IS
SATISFIED IN THAT OF AN ORDER FOR PRODUCTION BY THE COURT'S
DETERMINATION THAT THE INVESTIGATION IS AUTHORIZED BY CONGRESS, IS FOR
A PURPOSE CONGRESS CAN ORDER, AND THE DOCUMENTS SOUGHT ARE RELEVANT TO
THE INQUIRY.  FN44  BEYOND THIS THE REQUIREMENT OF REASONABLENESS,
INCLUDING PARTICULARITY IN "DESCRIBING THE PLACE TO BE SEARCHED, AND
THE PERSONS OR THINGS TO BE SEIZED," ALSO LITERALLY APPLICABLE TO
WARRANTS, COMES DOWN TO SPECIFICATION OF THE DOCUMENTS TO BE PRODUCED
ADEQUATE, BUT NOT EXCESSIVE, FOR THE PURPOSES OF THE RELEVANT INQUIRY. 
NECESSARILY, AS HAS BEEN SAID, THIS CANNOT BE REDUCED TO FORMULA; FOR
RELEVANCY AND ADEQUACY OR EXCESS IN THE BREADTH OF THE SUBPOENA ARE
MATTERS VARIABLE IN RELATION TO THE NATURE, PURPOSES AND SCOPE OF THE
INQUIRY.  FN45 

WHEN THESE PRINCIPLES ARE APPLIED TO THE FACTS OF THE PRESENT CASES,
IT IS IMPOSSIBLE TO CONCEIVE HOW A VIOLATION OF PETITIONERS' RIGHTS
COULD HAVE BEEN INVOLVED.  BOTH WERE CORPORATIONS.  THE ONLY RECORDS OR
DOCUMENTS SOUGHT WERE CORPORATE ONES.  NO POSSIBLE ELEMENT OF SELF
INCRIMINATION WAS THEREFORE PRESENTED OR IN FACT CLAIMED.  ALL THE
RECORDS SOUGHT WERE RELEVANT TO THE AUTHORIZED INQUIRY N46, THE PURPOSE
OF WHICH WAS TO DETERMINE TWO ISSUES, WHETHER PETITIONERS WERE SUBJECT
TO THE ACT AND, IF SO, WHETHER THEY WERE VIOLATING IT.  THESE WERE
SUBJECTS OF INVESTIGATION AUTHORIZED BY SEC. 11(A), THE LATTER
EXPRESSLY, THE FORMER BY NECESSARY IMPLICATION.  FN47  IT IS NOT TO BE
DOUBTED THAT CONGRESS COULD AUTHORIZE INVESTIGATION OF THESE MATTERS. 
IN ALL THESE RESPECTS,  FN48  THE SPECIFICATIONS MORE THAN MEET THE
REQUIREMENTS LONG ESTABLISHED BY MANY PRECEDENTS. 

MORE RECENT CONFIRMATION OF THOSE RULINGS MAY BE FOUND IN ENDICOTT
JOHNSON CORP. V. PERKINS, SUPRA, AND MYERS V. BETHLEHEM CORP., 303 U.S.
41.  IT IS TRUE THAT THESE CASES INVOLVED DIFFERENT STATUTES
SUBSTANTIALLY AND PROCEDURALLY.  BUT, NOTWITHSTANDING THE POSSIBLE
INFLUENCE OF THE DOCTRINE OF GOVERNMENTAL IMMUNITY TO SUIT IN THE
ENDICOTT JOHNSON CASE, IT WOULD BE ANOMALOUS TO HOLD THAT UNDER THE
WALSH-HEALEY ACT, 49 STAT. 2036, THE DISTRICT COURT WAS NOT AUTHORIZED
TO DECIDE THE QUESTION OF COVERAGE OR, ON THE BASIS OF ITS ADVERSE
DECISION, TO DENY ENFORCEMENT TO THE SECRETARY'S SUBPOENA SEEKING
RELEVANT EVIDENCE ON THAT QUESTION, BECAUSE CONGRESS HAD COMMITTED ITS
INITIAL DETERMINATION TO HIM; AND AT THE SAME TIME TO RULE THAT
CONGRESS COULD NOT CONFER THE SAME POWER UPON THE ADMINISTRATOR WITH
REFERENCE TO VIOLATIONS OF THE FAIR LABOR STANDARDS ACT.  FN49  THE
QUESTION AT ISSUE IS NOT IN EITHER CASE THE NATURE OF THE LEGAL
OBLIGATION, VIOLATION OF WHICH THE EVIDENCE IS SOUGHT TO SHOW.  IT IS
RATHER WHETHER EVIDENCE RELEVANT TO THE VIOLATION, WHATEVER THE
OBLIGATION'S CHARACTER, CAN BE DRAWN FORTH BY THE EXERCISE OF THE
SUBPOENA POWER. 

THE MYERS CASE DID NOT INVOLVE A SUBPOENA DUCES TECUM, BUT WAS A SUIT
TO ENJOIN THE NATIONAL LABOR RELATIONS BOARD FROM HOLDING A HEARING
UPON A COMPLAINT AGAINST AN EMPLOYER ALLEGED TO BE ENGAGED IN UNFAIR
LABOR PRACTICES FORBIDDEN BY THE WAGNER ACT, 49 STAT. 449.  THE HEARING
REQUIRED AN INVESTIGATION AND DETERMINATION OF COVERAGE, INVOLVING AS
IN THIS CASE THE QUESTION WHETHER THE COMPANY WAS ENGAGED IN COMMERCE. 
IT DENIED THIS UPON ALLEGATIONS THOUGHT TO SUSTAIN THE DENIAL, AS WELL
AS THE FUTILITY, EXPENSIVENESS AND VEXATIOUS CHARACTER OF THE HEARING
TO ITSELF.  FN50 THIS COURT HELD THAT THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO ENJOIN THE HEARING.  REGARDING AS APPROPRIATE THE
PROCEDURE BEFORE THE BOARD AND AS ADEQUATE THE PROVISIONS FOR JUDICIAL
REVIEW OF ITS ACTION, INCLUDING ITS DETERMINATION OF COVERAGE, THE
COURT SUSTAINED THE EXCLUSIVE JURISDICTION OF THE BOARD, AND OF THE
COURT OF APPEALS UPON REVIEW, TO DETERMINE THAT QUESTION, WITH OTHERS
COMMITTED TO THEIR JUDGMENT, IN THE STATUTORY PROCEEDING FOR
DETERMINING WHETHER VIOLATIONS OF THE ACT EXIST.  THE OPINION REFERRED
TO THE BOARD'S SUBPOENA POWER, ALSO TO ITS AUTHORITY TO APPLY TO A
DISTRICT COURT FOR ENFORCEMENT, AND STATED THAT "TO SUCH AN APPLICATION
APPROPRIATE DEFENCE MAY BE MADE."  BUT THE DECISION'S NECESSARY EFFECT
WAS TO RULE THAT IT WAS NOT "AN APPROPRIATE DEFENCE" THAT COVERAGE HAD
NOT BEEN DETERMINED PRIOR TO THE HEARING OR, IT WOULD SEEM NECESSARILY
TO FOLLOW, PRIOR TO THE BOARD'S PRELIMINARY INVESTIGATION OF
VIOLATION.  IF THIS IS TRUE IN THE CASE OF THE BOARD, IT WOULD SEEM TO
BE EQUALLY TRUE IN THAT OF THE ADMINISTRATOR.  FN51 

IN THESE RESULTS UNDER THE LATER AS WELL AS THE EARLIER DECISIONS,
THE BASIC COMPROMISE HAS BEEN WORKED OUT IN A MANNER TO SECURE THE
PUBLIC INTEREST AND AT THE SAME TIME TO GUARD THE PRIVATE ONES AFFECTED
AGAINST THE ONLY ABUSES FROM WHICH PROTECTION RIGHTFULLY MAY BE
CLAIMED.  THE LATTER ARE NOT IDENTICAL WITH THOSE PROTECTED AGAINST
INVASION BY ACTUAL SEARCH AND SEIZURE, NOR ARE THE THREATENED ABUSES
THE SAME.  THEY ARE RATHER THE INTERESTS OF MEN TO BE FREE FROM
OFFICIOUS INTERMEDDLING, WHETHER BECAUSE IRRELEVANT TO ANY LAWFUL
PURPOSE OR BECAUSE UNAUTHORIZED BY LAW, CONCERNING MATTERS WHICH ON
PROPER OCCASION AND WITHIN LAWFULLY CONFERRED AUTHORITY OF BROAD LIMITS
ARE SUBJECT TO PUBLIC EXAMINATION IN THE PUBLIC INTEREST.  OFFICIOUS
EXAMINATION CAN BE EXPENSIVE, SO MUCH SO THAT IT EATS UP MEN'S
SUBSTANCE.  IT CAN BE TIME CONSUMING, CLOGGING THE PROCESSES OF
BUSINESS.  IT CAN BECOME PERSECUTION WHEN CARRIED BEYOND REASON. 

ON THE OTHER HAND, PETITIONERS' VIEW, IF ACCEPTED, WOULD STOP MUCH IF
NOT ALL OF INVESTIGATION IN THE PUBLIC INTEREST AT THE THRESHOLD OF
INQUIRY AND, IN THE CASE OF THE ADMINISTRATOR, IS DESIGNED AVOWEDLY TO
DO SO.  THIS WOULD RENDER SUBSTANTIALLY IMPOSSIBLE HIS EFFECTIVE
DISCHARGE OF THE DUTIES OF INVESTIGATION AND ENFORCEMENT WHICH CONGRESS
HAS PLACED UPON HIM.  AND IF HIS FUNCTIONS COULD BE THUS BLOCKED, SO
MIGHT MANY OTHERS OF EQUAL IMPORTANCE. 

WE THINK, THEREFORE, THAT THE COURTS OF APPEALS WERE CORRECT IN THE
VIEW THAT CONGRESS HAS AUTHORIZED THE ADMINISTRATOR, RATHER THAN THE
DISTRICT COURTS IN THE FIRST INSTANCE, TO DETERMINE THE QUESTION OF
COVERAGE IN THE PRELIMINARY INVESTIGATION OF POSSIBLY EXISTING
VIOLATIONS; IN DOING SO TO EXERCISE HIS SUBPOENA POWER FOR SECURING
EVIDENCE UPON THAT QUESTION, BY SEEKING THE PRODUCTION OF PETITIONERS'
RELEVANT BOOKS, RECORDS AND PAPERS; AND, IN CASE OF REFUSAL TO OBEY HIS
SUBPOENA, ISSUED ACCORDING TO THE STATUTE'S AUTHORIZATION, TO HAVE THE
AID OF THE DISTRICT COURT IN ENFORCING IT.  NO CONSTITUTIONAL PROVISION
FORBIDS CONGRESS TO DO THIS.  ON THE CONTRARY, ITS AUTHORITY WOULD SEEM
CLEARLY TO BE COMPREHENDED IN THE "NECESSARY AND PROPER" CLAUSE, AS
INCIDENTAL TO BOTH ITS GENERAL LEGISLATIVE AND ITS INVESTIGATIVE
POWERS.                                       IV. 

WHAT HAS BEEN SAID DISPOSES OF PETITIONERS' PRINCIPAL CONTENTION UPON
THE SUFFICIENCY OF THE SHOWING.  OTHER ASSIGNMENTS, HOWEVER, PRESENT
THE FURTHER QUESTIONS WHETHER ANY SHOWING IS REQUIRED BEYOND THE
ADMINISTRATOR'S ALLEGATIONS OF COVERAGE AND RELEVANCE OF THE REQUIRED
MATERIALS TO THAT QUESTION; AND, IF SO, OF WHAT CHARACTER.  STATED
OTHERWISE, THEY ARE WHETHER THE COURT MAY ORDER ENFORCEMENT ONLY UPON A
FINDING OF "PROBABLE CAUSE," THAT IS, PROBABILITY IN FACT, OF COVERAGE,
AS WAS HELD BY THE COURT OF APPEALS FOR THE TENTH CIRCUIT IN NO. 61,
FOLLOWING THE LEAD OF THE EIGHTH CIRCUIT IN WALLING V. BENSON, 137 F.2D
501, OR MAY DO SO UPON THE NARROWER BASIS ACCEPTED BY THE THIRD CIRCUIT
IN NO. 63. 

THE SHOWING IN NO. 61 WAS CLEARLY SUFFICIENT TO CONSTITUTE "PROBABLE
CAUSE" IN THIS SENSE UNDER CONCEPTIONS OF COVERAGE PREVAILING AT THE
TIME OF THE HEARING,  FN52  WHETHER OR NOT THAT SHOWING WAS NECESSARY. 
ACCORDINGLY THE JUDGMENT IN THAT CASE MUST BE AFFIRMED. 

IN NO. 63 THE SHOWING WAS LESS EXTENSIVE, AND IT IS DOUBTFUL THAT IT
WOULD CONSTITUTE "PROBABLE CAUSE" OF COVERAGE AS THAT TERM WAS USED IN
THE DECISIONS FROM THE TENTH AND EIGHTH CIRCUITS.  FN53  THE COURT OF
APPEALS FOR THE THIRD CIRCUIT DID NOT SO LABEL IT, BUT HELD THE SHOWING
SUFFICIENT. 

CONGRESS HAS MADE NO REQUIREMENT IN TERMS OF ANY SHOWING OF "PROBABLE
CAUSE"; FN54  AND, IN VIEW OF WHAT HAS ALREADY BEEN SAID, ANY POSSIBLE
CONSTITUTIONAL REQUIREMENT OF THAT SORT WAS SATISFIED BY THE
ADMINISTRATOR'S SHOWING IN THIS CASE, INCLUDING NOT ONLY THE
ALLEGATIONS CONCERNING COVERAGE, BUT ALSO THAT HE WAS PROCEEDING WITH
HIS INVESTIGATION IN ACCORDANCE WITH THE MANDATE OF CONGRESS AND THAT
THE RECORDS SOUGHT WERE RELEVANT TO THAT PURPOSE.  ACTUALLY, IN VIEW OF
TODAY'S RULING IN MABEE V. WHITE PLAINS PUBLISHING CO., SUPRA, THE
SHOWING HERE, INCLUDING THE FACTS SUPPLIED BY THE RESPONSE, WAS
SUFFICIENT TO ESTABLISH COVERAGE ITSELF, THOUGH THAT WAS NOT REQUIRED. 

THE RESULT THEREFORE SUSTAINS THE ADMINISTRATOR'S POSITION THAT HIS
INVESTIGATIVE FUNCTION, IN SEARCHING OUT VIOLATIONS WITH A VIEW TO
SECURING ENFORCEMENT OF THE ACT, IS ESSENTIALLY THE SAME AS THE GRAND
JURY'S, OR THE COURT'S IN ISSUING OTHER PRETRIAL ORDERS FOR THE
DISCOVERY OF EVIDENCE,  FN55  AND IS GOVERNED BY THE SAME LIMITATIONS. 
THESE ARE THAT HE SHALL NOT ACT ARBITRARILY OR IN EXCESS OF HIS
STATUTORY AUTHORITY, BUT THIS DOES NOT MEAN THAT HIS INQUIRY MUST BE
"LIMITED  ...  BY FORECASTS OF THE PROBABLE RESULT OF THE INVESTIGATION
..."  BLAIR V. UNITED STATES, 250 U.S. 273, 282; CF. HALE V. HENKEL,
201 U.S. 43.  NOR IS THE JUDICIAL FUNCTION EITHER ABUSED OR ABASED, AS
HAS BEEN SUGGESTED,  FN56  BY LEAVING TO IT THE DETERMINATION OF THE
IMPORTANT QUESTIONS WHICH THE ADMINISTRATOR'S POSITION CONCEDES THE
COURTS MAY DECIDE.  FN57 

PETITIONERS STRESS THAT ENFORCEMENT WILL SUBJECT THEM TO
INCONVENIENCE, EXPENSE AND HARASSMENT.  THAT ARGUMENT IS ANSWERED FULLY
BY WHAT WAS SAID IN MYERS V. BETHLEHEM CORP. FN58  THERE IS NO
HARASSMENT WHEN THE SUBPOENA IS ISSUED AND ENFORCED ACCORDING TO LAW. 
THE ADMINISTRATOR IS AUTHORIZED TO ENTER AND INSPECT, BUT THE ACT MAKES
HIS RIGHT TO DO SO SUBJECT IN ALL CASES TO JUDICIAL SUPERVISION. 
PERSONS FROM WHOM HE SEEKS RELEVANT INFORMATION ARE NOT REQUIRED TO
SUBMIT TO HIS DEMAND, IF IN ANY RESPECT IT IS UNREASONABLE OR
OVERREACHES THE AUTHORITY CONGRESS HAS GIVEN.  TO IT THEY MAY MAKE
"APPROPRIATE DEFENCE" SURROUNDED BY EVERY SAFEGUARD OF JUDICIAL
RESTRAINT.  IN VIEW OF THESE SAFEGUARDS, THE EXPRESSED FEARS OF
UNWARRANTED INTRUSIONS UPON PERSONAL LIBERTY ARE EFFECTIVE ONLY TO
RECALL MR. JUSTICE CARDOZO'S REPLY TO THE SAME EXAGGERATED FOREBODINGS
IN JONES V. SECURITIES & EXCHANGE COMMISSION:  "HISTORIANS MAY FIND
HYPERBOLE IN THE SANGUINARY SIMILE."  FN59 

NOR IS THERE ROOM FOR INTIMATION THAT THE ADMINISTRATOR HAS PROCEEDED
IN THESE CASES IN ANY MANNER CONTRARY TO PETITIONERS' FUNDAMENTAL
RIGHTS OR OTHERWISE THAN STRICTLY ACCORDING TO LAW.  IT IS TO BE
REMEMBERED THAT PETITIONERS' ARE NOT THE ONLY RIGHTS WHICH MAY BE
INVOLVED OR THREATENED WITH POSSIBLE INFRINGEMENT.  THEIR EMPLOYEES'
RIGHTS AND THE PUBLIC INTEREST UNDER THE DECLARED POLICY OF CONGRESS
ALSO WOULD BE AFFECTED IF PETITIONERS SHOULD ENJOY THE PRACTICALLY
COMPLETE IMMUNITY THEY SEEK. 

NO SUFFICIENT REASON WAS SET FORTH IN THE RETURNS OR THE ACCOMPANYING
AFFIDAVITS FOR NOT ENFORCING THE SUBPOENAS, A BURDEN PETITIONERS WERE
REQUIRED TO ASSUME IN ORDER TO MAKE "APPROPRIATE DEFENCE." 

ACCORDINGLY THE JUDGMENTS IN BOTH CAUSES, NO. 61 AND NO. 63, ARE
AFFIRMED. 

FN1  THE PERTINENT PORTIONS OF THESE VARIOUS STATUTORY PROVISIONS ARE
SET FORTH IN NOTES 23 AND 24. 

FN2  UPON FILING OF THE APPLICATION, AN ORDER TO SHOW CAUSE WHY
ENFORCEMENT SHOULD NOT BE HAD WAS ISSUED.  THEREAFTER THE MATTER WAS
HEARD UPON THE PLEADINGS, INCLUDING THE APPLICATION AND THE
RESPONDENT'S RETURN, TOGETHER WITH AFFIDAVITS FILED BY THE PARTIES. 
SEE NOTE 4; ALSO NOTE 52 INFRA.  THE DISTRICT COURT MADE FINDINGS OF
FACT AND CONCLUSIONS OF LAW, SEE 7 WAGE HOUR REP. AT 656, WHICH AMONG
OTHER THINGS DETERMINED "THAT THE COMPANY HEREIN IS SUBJECT TO THE WAGE
AND HOUR ACT"; AND ISSUED ITS ORDER FOR INSPECTION ACCORDINGLY.  AS TO
THIS FINDING AND CONCLUSION THE COURT OF APPEALS SAID:  "WHEN THE
MATTER WAS SUBMITTED TO THE TRIAL COURT ON THE RULE TO SHOW CAUSE, IT
CONCLUDED COVERAGE, BUT IT DID NOT HAVE TO GO THAT FAR."  147 F.2D 658,
662. 

FN3  IN NO. 63, AS IN NO. 61, AN ORDER TO SHOW CAUSE ISSUED ON FILING
OF THE APPLICATION.  UPON RETURN MADE, WHICH INCLUDED AFFIDAVITS
ATTACHED AS EXHIBITS, THE COURT RENDERED ITS OPINION AND ENTERED ITS
ORDER DISMISSING THE PROCEEDINGS, STATING HOWEVER THAT SINCE THE
ADMINISTRATOR "HAS NOT HAD OPPORTUNITY SUFFICIENTLY TO ARGUE THE
QUESTION OF COVERAGE, THAT MATTER IS LEFT TO SUCH FURTHER PROCEEDINGS
AS MAY BE APPROPRIATE...."  49 F.SUPP.  659, 661.  THE OPINION, NOTING
THAT TO DENY ENFORCEMENT "WOULD BE TO DIVIDE PROCEEDINGS INTO TWO
DISTINCT STAGES - ONE CONCERNING THE PRESENCE OF 'COMMERCE,' AND THE
OTHER TO DETERMINE OTHER ELEMENTS OF VIOLATION," WENT ON TO SAY: "THERE
WOULD SEEM TO BE NO COMPELLING REASON WHY SUCH SHOULD NOT BE THE CASE,
FOR IF THE ACT DOES NOT APPLY TO A CERTAIN BUSINESS OR PART OF AN
INDUSTRY, IT WOULD SEEM TO FOLLOW THAT THE PROVISIONS OF THE ACT SHOULD
NOT BE APPLIED THERETO...."  49 F.SUPP.  AT 660. 

FN4  SEE NOTE 53.  THE ALLEGATIONS OF COVERAGE IN BOTH APPLICATIONS
WERE MADE UPON INFORMATION AND BELIEF AND WERE GENERAL RATHER THAN
SPECIFIC OR EVIDENTIARY IN CHARACTER.  EACH APPLICATION SET FORTH THAT
THE RESPONDENT WAS ENGAGED IN THE BUSINESS OF PUBLISHING A NEWSPAPER OR
NEWSPAPERS AND BY VIRTUE OF THAT ACTIVITY WAS ENGAGED IN INTERSTATE
COMMERCE OR IN THE PRODUCTION OF GOODS FOR SUCH COMMERCE WITHIN THE
MEANING OF THE ACT. 

IN NO. 61 THE FURTHER ALLEGATIONS APPEARED THAT IN THE COURSE OF ITS
BUSINESS THE COMPANY "RECEIVES AND SENDS DAILY NEWS, INTELLIGENCE, AND
COMMUNICATIONS IN INTERSTATE COMMERCE, AND TRANSPORTS, SHIPS AND
DELIVERS GOODS PRODUCED BY IT FROM POINTS WITHIN" TO POINTS OUTSIDE
OKLAHOMA; AND THAT THE ADMINISTRATOR "HAVING REASONABLE GROUNDS TO
BELIEVE THAT THE COMPANY" WAS VIOLATING SPECIFIED SECTIONS OF THE ACT,
ENTERED TO MAKE AN INVESTIGATION AS PROVIDED IN SEC. 11(A), WAS REFUSED
PERMISSION TO INSPECT RECORDS, ETC. 

APART FROM ONE AFFIDAVIT FILED BY THE ADMINISTRATOR IN NO. 61 SETTING
FORTH THE CIRCUMSTANCES OF THE COMPANY'S FAILURE TO APPEAR IN RESPONSE
TO THE SUBPOENA, NO OTHER FACTS, BEYOND THE ALLEGATIONS OF THE
APPLICATION, WERE SUBMITTED BY HIM IN EITHER CASE.  THE COMPANIES
HOWEVER FILED AFFIDAVITS IN BOTH PROCEEDINGS, WHICH SUPPLIED ADDITIONAL
FACTS, AS WELL AS THE AFFIANTS' CONCLUSIONS, CONCERNING COVERAGE.  SEE
TEXT, PART IV, AT NOTES 52, 53. 

FN5  SPECIFICALLY, GENERAL TOBACCO & GROCERY CO. V. FLEMING, 125 F.2D
596(C.C.A. 6), MODIFIED IN WALLING V. LA BELLE STEAMSHIP CO., 148 F.2D
198, FOLLOWING THE DECISION IN ENDICOTT JOHNSON CORP. V. PERKINS, 317
U.S. 501, AS TO WHICH SEE NOTE 49 INFRA AND TEXT.  THE DECISIONS IN
OTHER CIRCUITS WHICH HAVE PASSED ON THE MATTER ARE SUBSTANTIALLY IN
ACCORD WITH THE RESULTS IN NO. 61.  SEE MARTIN TYPEWRITER CO. V.
WALLING, 135 F.2D 918(C.C.A. 1); WALLING V. STANDARD DREDGING CORP.,
132 F.2D 322(C.C.A. 2); WALLING V. AMERICAN ROLBAL CORP., 135 F.2D
1003(C.C.A. 2); CUDAHY PACKING CO. V. FLEMING, 119 F.2D 209(C.C.A. 5),
REV'D ON OTHER GROUNDS, 315 U.S. 357; CUDAHY PACKING CO. V. FLEMING,
122 F.2D 1005(C.C.A. 8), REV'D ON OTHER GROUNDS, 315 U.S. 785;
MISSISSIPPI ROAD SUPPLY CO. V. WALLING, 136 F.2D 391(C.C.A. 5); FLEMING
V. MONTGOMERY WARD & CO., 114 F.2D 384(C.C.A. 7); WALLING V. BENSON,
137 F.2D 501(C.C.A. 8). 

FN6  SEE PART IV. 

FN7  SEE ALSO SUN PUBLISHING CO. V. WALLING, 140 F.2D 445; FLEMING V.
LOWELL SUN CO., 36 F.SUPP.  320, REV'D ON OTHER GROUNDS, 120 F.2D 213,
AFFIRMED, 315 U.S. 784. 

FN8  NO QUESTION IS PRESENTED WHETHER CONGRESS COULD ENFORCE ITS
MANDATE BY EXCLUDING FROM COMMERCE THE CIRCULATION OF A PUBLISHER
REFUSING TO CONFORM.  CF. SUN PUBLISHING CO. V. WALLING, 140 F.2D 445,
449. 

FN9  SINCE THE FIFTH AMENDMENT, UNLIKE THE FOURTEENTH, CONTAINS NO
"EQUAL PROTECTION" CLAUSE, PETITIONERS BURDEN DUE PROCESS WITH THIS
DUTY HERE. 

FN10  THE PROVISION IS AS FOLLOWS:  "SEC.  13.  (A) THE PROVISIONS OF
EMPLOYED IN CONNECTION WITH THE PUBLICATION OF ANY WEEKLY OR SEMIWEEKLY
NEWSPAPER WITH A CIRCULATION OF LESS THAN THREE THOUSAND THE MAJOR PART
OF WHICH CIRCULATION IS WITHIN THE COUNTY WHERE PRINTED AND PUBLISHED
..." 

THE EXEMPTION SHOWS CONCLUSIVELY THAT CONGRESS INTENDED THE ACT TO
APPLY TO EMPLOYEES OF PUBLISHERS NOT WITHIN THE TERMS OF THE
EXEMPTION. 

FN11  TO SUPPORT THESE VIEWS, PETITIONERS GIVE INTERESTING STATISTICS
CONCERNING THE TOTAL NUMBER OF PAPERS IN THE COUNTRY, THE NUMBER
PUBLISHED DAILY, DAILY AND SUNDAY, WEEKLY, SEMIWEEKLY AND TRIWEEKLY,
AND THE NUMBER IN EACH GROUP HAVING MORE OR LESS THAN 3,000
CIRCULATION. 

FN12  SEE NOTE 21.  THE ACT BECAME EFFECTIVE JUNE 25, 1938. 

FN13  AS TO THE SUFFICIENCY OF THE SHOWING, SEE PART IV. 

FN14  CF. NOTES 2, 3, 4.  THE FACTS IN BOTH CASES SHOW THAT
PETITIONERS, WHEN SERVED WITH THE SUBPOENAS, DECLINED TO HONOR THEM
UPON THE ADVICE OF COUNSEL, AND THEREAFTER THE ADMINISTRATOR APPLIED TO
THE COURT FOR ENFORCEMENT IN EACH CASE. 

FN15  CF. TEXT INFRA AT NOTES 42-47; SEE ALSO NOTE 40. 

FN16  SEE THE AUTHORITIES CITED IN NOTES 31 AND 32. 

FN17  HALE V. HENKEL, 201 U.S. 43; WILSON V. UNITED STATES, 221 U.S.
361; ESSGEE CO. V. UNITED STATES, 262 U.S. 151; UNITED STATES V. BAUSCH
& LOMB OPTICAL CO., 321 U.S. 707, 726; CF. UNITED STATES V. WHITE, 322
U.S. 694. 

FN18  ENDICOTT JOHNSON CORP. V. PERKINS, 317 U.S. 501; MYERS V.
BETHLEHEM CORP., 303 U.S. 41, DISCUSSED INFRA, PART III, AT NOTES 49
51. 

FN19  CF. NOTE 5 AND TEXT. 

FN20  IN SUCH A SITUATION, WITHOUT AN ACCOMPANYING CHANGE IN THE
STATUTE'S LANGUAGE, AN EXPRESSION IN COMMITTEE REPORTS ON SUBSEQUENT
APPROPRIATIONS, COMING LARGELY FROM ONE HOUSE, HARDLY CAN BE HELD TO
CHANGE OR QUALIFY THE PLAIN AND UNAMBIGUOUS WORDING OF THE STATUTE. 
SUCH A RESULT WOULD AMOUNT TO RETROACTIVE AMENDMENT BY COMMITTEE
REPORT, A STEP IN CONSTRUCTION BY REFERENCE TO "PROSPECTIVE LEGISLATIVE
HISTORY" NOT HERETOFORE TAKEN. 

FN21  THE CONTROVERSY AS TO APPROPRIATIONS AROSE OVER THE
ADMINISTRATOR'S REQUEST FOR SUFFICIENT FUNDS TO ALLOW A PERIODIC
ROUTINE INSPECTION OF EVERY PLANT THAT MIGHT BE COVERED BY THE ACT. 
SEE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS
OF THE HOUSE OF REPRESENTATIVES ON THE DEPARTMENT OF LABOR - FEDERAL
SECURITY AGENCY APPROPRIATION BILL FOR 1942, 77TH CONG., 1ST SESS., PT.
1, 347-350.  THE SENATE HAD ACCEDED TO THIS REQUEST.  BUT THE HOUSE
APPROPRIATIONS COMMITTEE THOUGHT THE COST UNJUSTIFIABLE AND THEREFORE
RECOMMENDED THAT ONLY ENOUGH FUNDS BE MADE AVAILABLE TO PERMIT THE
ADMINISTRATOR TO MAKE "SPOT INSPECTIONS" OF TWENTY-FIVE PER CENT OF THE
PLANTS AND ALSO TO PERMIT HIM TO INSPECT ALL PLANTS AGAINST WHICH
COMPLAINTS HAD ACTUALLY BEEN REGISTERED.  H. REP. NO. 688, 77TH CONG.,
1ST SESS., 13-14; SEE ALSO 87 CONG. REC. 4629, 5682-5683.  AFTER THE
CONFEREES HAD BEEN UNABLE TO COME TO AN AGREEMENT AND THE HOUSE HAD
INSTRUCTED ITS CONFEREES TO INSIST ON THE SMALLER APPROPRIATION, 87
CONG. REC. 5682-5686, THE SENATE ACCEPTED THE HOUSE VERSION OF THE
APPROPRIATION BILL.  87 CONG. REC. 5703. 

IN THE FOLLOWING YEAR, 1942, THE HOUSE APPROPRIATIONS COMMITTEE NOTED
WITH DISAPPROVAL THAT "THE SPOT-CHECKING SYSTEM APPROVED BY THE
CONGRESS" HAD NOT BEEN ADOPTED AND REITERATED ITS DESIRE THAT THE
RECOMMENDED PROCEDURE BE FOLLOWED.  H. REP. NO. 2200, 77TH CONG., 2D
SESS., 8.  SEE ALSO HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE
ON APPROPRIATIONS OF THE HOUSE OF REPRESENTATIVES ON THE DEPARTMENT OF
LABOR - FEDERAL SECURITY AGENCY APPROPRIATION BILL FOR 1943, 77TH
CONG., 2D SESS., PT. 1, 281-284; CF. HEARINGS BEFORE THE SUBCOMMITTEE
OF THE COMMITTEE ON APPROPRIATIONS OF THE HOUSE OF REPRESENTATIVES ON
THE DEPARTMENT OF LABOR - FEDERAL SECURITY AGENCY APPROPRIATION BILL
FOR 1945, 78TH CONG., 2D SESS., PT. 1, 403-405. 

THIS HISTORY FALLS FAR SHORT OF SUSTAINING THE VIEW THAT CONGRESS HAD
NO INTENT, EITHER WHEN THE STATUTE WAS ENACTED OR LATER, THAT THE
ADMINISTRATOR SHOULD HAVE THE POWERS OF INVESTIGATION EXPRESSLY AND
CLEARLY CONFERRED UPON HIM.    FN22  THE SPARSE LEGISLATIVE HISTORY
BEARING ON THE QUESTION CONTAINS NOTHING TO THE CONTRARY.  THE BILLS
ORIGINALLY INTRODUCED DID NOT INCORPORATE SECS. 9 AND 10 OF THE FEDERAL
TRADE COMMISSION ACT BUT CONTAINED SUBSTANTIALLY SIMILAR PROVISIONS. 
S. 2475, 75TH CONG., 1ST SESS., SEC. 15, 81 CONG. REC. 4961; H.R. 7200,
75TH CONG., 1ST SESS., SEC. 15, 81 CONG. REC. 4998.  THE HOUSE
COMMITTEE ON LABOR REPORTED OF THIS SECTION (THEN SEC. 12) THAT IT
"CONTAINS THE USUAL ADMINISTRATIVE PROVISIONS AUTHORIZING THE BOARD TO
CONDUCT INVESTIGATIONS, SUBPENA WITNESSES, AND COMPEL TESTIMONY."  H.
REP. NO. 1452, 75TH CONG., 1ST SESS., 18, ALSO PAGE 10.  THE SENATE
COMMITTEE USED THE SAME LANGUAGE.  S. REP. NO. 884, 75TH CONG., 1ST
SESS., 8.  THE HOUSE BILL HAVING BEEN RECOMMITTED TO THE COMMITTEE, 82
CONG. REC. 1834-1835, IT DRAFTED THE SUBPOENA SECTION (THEN SEC. 7)
INTO ESSENTIALLY ITS PRESENT FORM.  SEE H. REP. NO. 2182, 75TH CONG.,
2D SESS., 3, 11.  THE ONLY SUBSTANTIAL DIFFERENCE WAS THAT THE SUBPOENA
POWER WAS GIVEN FOR THE PURPOSE OF ANY "HEARING" BUT NOT FOR THE
PURPOSE OF ANY "INVESTIGATION."  HOWEVER, SEC. 15(B) OF THE BILLS
INTRODUCED IN BOTH HOUSES, SUPRA, GRANTED THE SUBPOENA POWER "FOR THE
PURPOSE OF ANY INVESTIGATION OR ANY OTHER PROCEEDING UNDER THIS
ACT...."  AND COMPARE SEC. 15(A).  THE DIFFERENCE WAS REMEDIED BY THE
SENATE AND HOUSE CONFEREES; FOR OUT OF CONFERENCE CAME SEC. 9 AS IT IS
NOW WRITTEN.  83 CONG. REC. 9160; 83 CONG. REC. 9248, 9254.  SEE ALSO
CUDAHY PACKING CO. V. HOLLAND, 315 U.S. 357, 362, N. 3. 

NOTHING IN THE REPORTS OR THE DISCUSSION SUGGESTS THAT THE POWER WAS
NOT TO BE EXERCISED, OR THAT SUBPOENAS ISSUED IN COMPLIANCE WITH THE
TERMS OF THE STATUTE WERE NOT TO BE ENFORCED, EXACTLY IN ACCORDANCE
WITH THE AUTHORITY GIVEN. 

FN23  SECTION 11(A) IS AS FOLLOWS:  "THE ADMINISTRATOR OR HIS
DESIGNATED REPRESENTATIVES MAY INVESTIGATE AND GATHER DATA REGARDING
THE WAGES, HOURS, AND OTHER CONDITIONS AND PRACTICES OF EMPLOYMENT IN
ANY INDUSTRY SUBJECT TO THIS ACT, AND MAY ENTER AND INSPECT SUCH PLACES
AND SUCH RECORDS (AND MAKE SUCH TRANSCRIPTIONS THEREOF), QUESTION SUCH
EMPLOYEES, AND INVESTIGATE SUCH FACTS, CONDITIONS, PRACTICES, OR
MATTERS AS HE MAY DEEM NECESSARY OR APPROPRIATE TO DETERMINE WHETHER
ANY PERSON HAS VIOLATED ANY PROVISION OF THIS ACT, OR WHICH MAY AID IN
THE ENFORCEMENT OF THE PROVISIONS OF THIS ACT.  EXCEPT AS PROVIDED IN
SHALL UTILIZE THE BUREAUS AND DIVISIONS OF THE DEPARTMENT OF LABOR FOR
ALL THE INVESTIGATIONS AND INSPECTIONS NECESSARY UNDER THIS SECTION. 
EXCEPT AS PROVIDED IN SECTION 12, THE ADMINISTRATOR SHALL BRING ALL
ACTIONS UNDER SECTION 17 TO RESTRAIN VIOLATIONS OF THIS ACT." 

THE SECTION THUS AUTHORIZES BOTH GENERAL AND SPECIFIC INVESTIGATIONS,
ONE FOR GATHERING STATISTICAL INFORMATION CONCERNING ENTIRE INDUSTRIES,
CF. WALLING V. AMERICAN ROLBAL CORP., 135 F.2D 1003, THE OTHER TO
DISCOVER SPECIFIC VIOLATIONS.  THE PATTERN HAS BECOME COMMON SINCE ITS
INTRODUCTION INTO FEDERAL LAW BY THE INTERSTATE COMMERCE COMMISSION
LEGISLATION.  SEE THE SUMMARY GIVEN AS TO BOTH FEDERAL AND STATE
INSTANCES IN HANDLER, THE CONSTITUTIONALITY OF INVESTIGATIONS BY THE
FEDERAL TRADE COMMISSION (1928) 28 COL. L. REV. 708, 905, AT 905-909;
SEE ALSO 925-929. 

FN24  SECTION 9 OF THE FAIR LABOR STANDARDS ACT READS:  "FOR THE
PURPOSE OF ANY HEARING OR INVESTIGATION PROVIDED FOR IN THIS ACT, THE
PROVISIONS OF SECTIONS 9 AND 10(RELATING TO THE ATTENDANCE OF WITNESSES
AND THE PRODUCTION OF BOOKS, PAPERS, AND DOCUMENTS) OF THE FEDERAL
TRADE COMMISSION ACT OF SEPTEMBER 16, 1914, AS AMENDED (U.S.C., 1934
EDITION, TITLE 15, SECS. 49 AND 50), ARE HEREBY MADE APPLICABLE TO THE
JURISDICTION, POWERS, AND DUTIES OF THE ADMINISTRATOR, THE CHIEF OF THE
CHILDREN'S BUREAU, AND THE INDUSTRY COMMITTEES." 

THAT, FOR THE PURPOSES OF THE AUTHORIZED INVESTIGATIONS, THE COMMISSION
OR ITS AGENTS SHALL HAVE ACCESS TO AND THE RIGHT TO COPY "ANY
DOCUMENTARY EVIDENCE OF ANY CORPORATION BEING INVESTIGATED OR PROCEEDED
AGAINST," WITH THE POWER TO REQUIRE BY SUBPOENA "THE ATTENDANCE AND
TESTIMONY OF WITNESSES AND THE PRODUCTION OF ALL SUCH DOCUMENTARY
EVIDENCE RELATING TO ANY MATTER UNDER INVESTIGATION." 

THE SECTION THEN PROCEEDS:  "...  IN CASE OF DISOBEDIENCE TO A
SUBPOENA THE COMMISSION MAY INVOKE THE AID OF ANY COURT OF THE UNITED
STATES IN REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES AND THE
PRODUCTION OF DOCUMENTARY EVIDENCE. 

"ANY OF THE DISTRICT COURTS OF THE UNITED STATES WITHIN THE
JURISDICTION OF WHICH SUCH INQUIRY IS CARRIED ON MAY, IN CASE OF
CONTUMACY OR REFUSAL TO OBEY A SUBPOENA ISSUED TO ANY CORPORATION OR
OTHER PERSON, ISSUE AN ORDER REQUIRING SUCH CORPORATION OR OTHER PERSON
TO APPEAR BEFORE THE COMMISSION, OR TO PRODUCE DOCUMENTARY EVIDENCE IF
SO ORDERED, OR TO GIVE EVIDENCE TOUCHING THE MATTER IN QUESTION; AND
ANY FAILURE TO OBEY SUCH ORDER OF THE COURT MAY BE PUNISHED BY SUCH
COURT AS A CONTEMPT THEREOF." 

PROSECUTION, PENALTY OR FORFEITURE ON ACCOUNT OF TESTIMONY OR EVIDENCE
PRODUCED IN RESPONSE TO THE SUBPOENA. 

NEGLECT OR REFUSE TO ATTEND AND TESTIFY, OR TO ANSWER ANY LAWFUL
INQUIRY, OR TO PRODUCE DOCUMENTARY EVIDENCE, IF IN HIS POWER TO DO SO,
IN OBEDIENCE TO THE SUBPOENA OR LAWFUL REQUIREMENT OF THE COMMISSION
..."  NO QUESTION IS PRESENTED IN THESE CASES CONCERNING THIS
PROVISION. 

FN25  SEE PART IV, AT NOTE 54; ALSO NOTE 24. 

FN26  SEE NOTE 27. 

FN27  SEE FEDERAL TRADE COMMISSION V. AMERICAN TOBACCO CO., 264 U.S.
298, 305-306, IN WHICH MR. JUSTICE HOLMES SPEAKING FOR THE COURT SAID:
"ANYONE WHO RESPECTS THE SPIRIT AS WELL AS THE LETTER OF THE FOURTH
AMENDMENT WOULD BE LOATH TO BELIEVE THAT CONGRESS INTENDED TO AUTHORIZE
ONE OF ITS SUBORDINATE AGENCIES TO SWEEP ALL OUR TRADITIONS INTO THE
FIRE (INTERSTATE COMMERCE COMMISSION V. BRIMSON, 154 U.S. 447, 479),
AND TO DIRECT FISHING EXPEDITIONS INTO PRIVATE PAPERS ON THE
POSSIBILITY THAT THEY MAY DISCLOSE EVIDENCE OF CRIME.  WE DO NOT
DISCUSS THE QUESTION WHETHER IT COULD DO SO IF IT TRIED, AS NOTHING
SHORT OF THE MOST EXPLICIT LANGUAGE WOULD INDUCE US TO ATTRIBUTE TO
CONGRESS THAT INTENT."  SEE ALSO NOTE 40.  CF. BOYD V. UNITED STATES,
116 U.S. 616; HALE V. HENKEL, 201 U.S. 43; HARRIMAN V. INTERSTATE
COMMERCE COMMISSION, 211 U.S. 407. 

FN28  "IN OTHER WORDS, THE SUBPOENA IS EQUIVALENT TO A SEARCH AND
SEIZURE AND TO BE CONSTITUTIONAL IT MUST BE A REASONABLE EXERCISE OF
THE POWER."  LASSON, DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED
STATES CONSTITUTION, 137, CITING INTERSTATE COMMERCE COMMISSION V.
BRIMSON, 154 U.S. 447; HALE V. HENKEL, 201 U.S. 43, 76.  CF. BOYD V.
UNITED STATES, 116 U.S. AT 634-635(AS TO WHICH SEE ALSO NOTES 33 AND
36):  "...  WE ARE FURTHER OF OPINION THAT A COMPULSORY PRODUCTION OF
THE PRIVATE BOOKS AND PAPERS OF THE OWNER OF GOODS SOUGHT TO BE
FORFEITED  ...  IS THE EQUIVALENT OF A SEARCH AND SEIZURE - AND AN
UNREASONABLE SEARCH AND SEIZURE - WITHIN THE MEANING OF THE FOURTH
AMENDMENT." 

SEE ALSO HANDLER, CONSTITUTIONALITY OF INVESTIGATIONS OF THE FEDERAL
TRADE COMMISSION (1928) 28 COL. L. REV. 708, 905, AT 909 FF., AND
AUTHORITIES CITED, CHARACTERIZING THE IDENTIFICATION OF AN ORDER FOR
PRODUCTION WITH AN ACTUAL SEARCH OR SEIZURE AS "THE FIGURATIVE
INTERPRETATION."  P. 917, N. 56. 

FN29  SEE, IN ADDITION TO THE BETTER KNOWN ACCOUNTS OF WRITS OF
ASSISTANCE CITED IN GOLDMAN V. UNITED STATES, DISSENTING OPINION, 316
U.S. AT 139, N. 5, LASSON, DEVELOPMENT OF THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION (1937). 

FN30  THE CASE FOR PROTECTION OF THE PUBLIC INTEREST WAS STATED AS
FOLLOWS:  "THE OPINION OF THE COURT REMINDS US OF THE DANGERS THAT WAIT
UPON THE ABUSE OF POWER BY OFFICIALDOM UNCHAINED.  THE WARNING IS SO
FRAUGHT WITH TRUTH THAT IT CAN NEVER BE UNTIMELY.  BUT TIMELY TOO IS
THE REMINDER, AS A HOST OF IMPOVERISHED INVESTORS WILL BE READY TO
ATTEST, THAT THERE ARE DANGERS IN UNTRUTHS AND HALF TRUTHS WHEN
CERTIFICATES MASQUERADING AS SECURITIES PASS CURRENT IN THE MARKET. 
THERE ARE DANGERS IN SPREADING A BELIEF THAT UNTRUTHS AND HALF TRUTHS,
DESIGNED TO BE PASSED ON FOR THE GUIDANCE OF CONFIDING BUYERS, ARE TO
BE RANKED AS PECCADILLOS, OR EVEN PERHAPS AS PART OF THE AMENITIES OF
BUSINESS....  A COMMISSION WHICH IS WITHOUT COERCIVE POWERS, WHICH
CANNOT ARREST OR AMERCE OR IMPRISON THOUGH A CRIME HAS BEEN UNCOVERED,
OR EVEN PUNISH FOR CONTEMPT, BUT CAN ONLY INQUIRE AND REPORT, THE
PROPRIETY OF EVERY QUESTION IN THE COURSE OF THE INQUIRY BEING SUBJECT
TO THE SUPERVISION OF THE ORDINARY COURTS OF JUSTICE, IS LIKENED WITH
DENUNCIATORY FERVOR TO THE STAR CHAMBER OF THE STUARTS.  HISTORIANS MAY
FIND HYPERBOLE IN THE SANGUINARY SIMILE."  MR. JUSTICE CARDOZO, WITH
WHOM JOINED THE PRESENT CHIEF JUSTICE AND MR. JUSTICE BRANDEIS,
DISSENTING IN JONES V. SECURITIES & EXCHANGE COMMISSION, 298 U.S. 1, 32
33.  SEE ALSO HANDLER, CONSTITUTIONALITY OF INVESTIGATIONS OF THE
FEDERAL TRADE COMMISSION (1928) 28 COL. L. REV. 708, 905, PARTICULARLY
AT 933 FF. 

ON THE OTHER HAND, THE CASE FOR PROTECTED PRIVACY WAS PUT BY MR.
JUSTICE BRANDEIS, DISSENTING, IN OLMSTEAD V. UNITED STATES, 277 U.S.
438, 478-479:  "THE MAKERS OF OUR CONSTITUTION UNDERTOOK TO SECURE
CONDITIONS FAVORABLE TO THE PURSUIT OF HAPPINESS.  THEY RECOGNIZED THE
SIGNIFICANCE OF MAN'S SPIRITUAL NATURE, OF HIS FEELINGS AND OF HIS
INTELLECT.  THEY KNEW THAT ONLY A PART OF THE PAIN, PLEASURE AND
SATISFACTIONS OF LIFE ARE TO BE FOUND IN MATERIAL THINGS.  THEY SOUGHT
TO PROTECT AMERICANS IN THEIR BELIEFS, THEIR THOUGHTS, THEIR EMOTIONS
AND THEIR SENSATIONS.  THEY CONFERRED, AS AGAINST THE GOVERNMENT, THE
RIGHT TO BE LET ALONE - THE MOST COMPREHENSIVE OF RIGHTS AND THE RIGHT
MOST VALUED BY CIVILIZED MEN.  TO PROTECT THAT RIGHT, EVERY
UNJUSTIFIABLE INTRUSION BY THE GOVERNMENT UPON THE PRIVACY OF THE
INDIVIDUAL, WHATEVER THE MEANS EMPLOYED, MUST BE DEEMED A VIOLATION OF
THE FOURTH AMENDMENT.  AND THE USE, AS EVIDENCE IN A CRIMINAL
PROCEEDING, OF FACTS ASCERTAINED BY SUCH INTRUSION MUST BE DEEMED A
VIOLATION OF THE FIFTH." 

FN31  WILSON V. UNITED STATES, 221 U.S. 361, 382; HALE V. HENKEL, 201
U.S. 43, 74-75; THE FOURTH AND FIFTH AMENDMENTS AND THE VISITORIAL
POWER OF CONGRESS OVER STATE CORPORATIONS, NOTE (1930) 30 COL. L. REV.
103. 

FN32  IBID.; INTERSTATE COMMERCE COMMISSION V. BRIMSON, 154 U.S. 447;
INTERSTATE COMMERCE COMMISSION V. BAIRD, 194 U.S. 25; BALTIMORE & OHIO
R. CO. V. INTERSTATE COMMERCE COMMISSION, 221 U.S. 612; INTERSTATE
COMMERCE COMMISSION V. GOODRICH TRANSIT CO., 224 U.S. 194; UNITED
STATES V. LOUISVILLE & N.R. CO., 236 U.S. 318; SMITH V. INTERSTATE
COMMERCE COMMISSION, 245 U.S. 33; UNITED STATES V. NEW YORK CENTRAL R.
CO., 272 U.S. 457; CF., HOWEVER, HARRIMAN V. INTERSTATE COMMERCE
COMMISSION, 211 U.S. 407; FEDERAL TRADE COMMISSION V. CLAIRE FURNACE
CO., 274 U.S. 160.  AND SEE HANDLER, CONSTITUTIONALITY OF
INVESTIGATIONS BY THE FEDERAL TRADE COMMISSION (1928) 28 COL. L. REV.
708, 903. 

THE POWER IS NOT LIMITED TO INQUIRING CONCERNING MATTERS WHICH
CONGRESS MAY REGULATE OTHERWISE THAN BY REQUIRING THE PRODUCTION OF
INFORMATION, AT ANY RATE WHEN IT IS MADE TO APPEAR THAT SOME PHASE OF
THE ACTIVITY IS IN COMMERCE OR AFFECTS IT.  SEE UNITED STATES V. NEW
YORK CENTRAL R. CO., 272 U.S. 457, 464, AND AUTHORITIES CITED; FEDERAL
TRADE COMMISSION V. CLAIRE FURNACE CO., 274 U.S. 160.  NOR MUST THE
"JURISDICTIONAL" LINE BE DRAWN IN SUCH CASES BEFORE THE INFORMATION IS
CALLED FOR.  CF. MYERS V. BETHLEHEM CORP., 303 U.S. 41; HANDLER, OP.
CIT. SUPRA, AT 918 FF., AND AUTHORITIES CITED. 

FN33  IN THE LEADING CASE OF BOYD V. UNITED STATES, 116 U.S. 616,
630, MR. JUSTICE BRADLEY, SPEAKING FOR THE COURT IN RELATION TO THE
COMPELLED PRODUCTION OF "A MAN'S OWN TESTIMONY OR OF HIS PRIVATE PAPERS
(SPECIFICALLY A BUSINESS INVOICE) TO BE USED AS EVIDENCE TO CONVICT HIM
OF CRIME OR TO FORFEIT HIS GOODS," SAID IN A MUCH QUOTED STATEMENT:
"IN THIS REGARD THE FOURTH AND FIFTH AMENDMENTS RUN ALMOST INTO EACH
OTHER."  THE OPINION, QUOTING AT LENGTH FROM LORD CAMDEN'S DISCUSSION
IN THE HISTORIC CASE OF ENTICK V. CARRINGTON, 19 HOWELL'S STATE TRIALS
1029, RELIES STRONGLY IN THIS PHASE UPON HIS CONJUNCTION OF THE RIGHT
TO FREEDOM FROM SEARCH AND SEIZURE "WHERE THE LAW FORCETH EVIDENCE OUT
OF THE OWNER'S CUSTODY BY PROCESS" AND THE PRIVILEGE AGAINST SELF
INCRIMINATION.  116 U.S. AT 629.  CF. ALSO THE STATEMENT OF MR. JUSTICE
BRANDEIS, QUOTED SUPRA NOTE 30. 

FN34  WILSON V. UNITED STATES, 221 U.S. 361; HALE V. HENKEL, 201 U.S.
43; INTERSTATE COMMERCE COMMISSION V. BAIRD, 194 U.S. 25. 

FN35  SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385; HALE V.
HENKEL, 201 U.S. 43; INTERSTATE COMMERCE COMMISSION V. BRIMSON, 154
U.S. 447, 448 FF.  SEE ALSO CONSOLIDATED RENDERING CO. V. VERMONT, 207
U.S. 541. 

FN36  SEE NOTE 33.  THE RULING WAS LIMITED, IN VIEW OF THE FACTS, TO
CRIMINAL PROCEEDINGS AND PROCEEDINGS FOR FORFEITURE OF PROPERTY.  ONLY
A SINGLE DOCUMENT WAS CALLED FOR.  THE VITIATING ELEMENT LAY IN THE
INCRIMINATING CHARACTER OF THE UNUSUAL PROVISION FOR ENFORCEMENT.  THE
STATUTE PROVIDED THAT FAILURE TO PRODUCE MIGHT BE TAKEN AS A CONFESSION
OF WHATEVER MIGHT BE ALLEGED IN THE MOTION FOR PRODUCTION. 

FN37  SEE NOTES 31, 32, 40.  THUS FAR CONGRESS HAS NOT SEEN FIT TO
LEAVE TO ADMINISTRATIVE OFFICIALS AUTHORITY TO ENFORCE SUBPOENAS.  THE
PATTERN ADOPTED IN SECS. 9 AND 10 OF THE FEDERAL TRADE COMMISSION ACT,
OF REFERRING ENFORCEMENT TO THE COURTS, HAS BECOME ACCEPTED, WHETHER BY
VIRTUE OF REFLECTIONS OF THE OPINION IN INTERSTATE COMMERCE COMMISSION
V. BRIMSON, 154 U.S. 447, OR FOR OTHER REASONS.  THE EXTENT TO WHICH
THE PATTERN HAS BEEN ADOPTED IS SUMMARIZED, PARTIALLY AT LEAST, IN
HANDLER, OP. CIT. SUPRA, AT 925 FF.    FN38  SEE, FOR EXAMPLE, ESSGEE
CO. V. UNITED STATES, 262 U.S. 151. 

FN39  E.G., IN SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S.
385, GOVERNMENT OFFICERS, AFTER ARRESTING CORPORATE OFFICIALS AT THEIR
HOMES, "WITHOUT A SHADOW OF AUTHORITY WENT TO THE OFFICE OF THEIR
COMPANY AND MADE A CLEAN SWEEP OF ALL THE BOOKS, PAPERS AND DOCUMENTS
FOUND THERE," TAKING THEM TO THE DISTRICT ATTORNEY'S OFFICE, WHERE THEY
WERE PHOTOGRAPHED.  AFTER AN ORDER OF COURT TO RETURN THE ORIGINALS,
BUT IMPOUNDING THE COPIES, SUBPOENAS TO PRODUCE THE ORIGINALS WERE
ENFORCED BY AN ORDER, THE REFUSAL TO OBEY WHICH WAS HELD A CONTEMPT. 
THE COURT'S STRONG LANGUAGE IN REVERSING THIS DECISION UNDOUBTEDLY WAS
CALLED FORTH BY THE GOVERNMENT'S EFFORT, NOT TO SAY SUBTERFUGE, THUS TO
AVOID THE EFFECTS OF ITS INITIAL WRONG.  CF. WEEKS V. UNITED STATES,
232 U.S. 383; GOULED V. UNITED STATES, 255 U.S. 298. 

FN40  THUS, THE AGGRAVATING CIRCUMSTANCE IN FEDERAL TRADE COMMISSION
V. AMERICAN TOBACCO CO., 264 U.S. 298, CF. NOTE 27, SEEMS TO HAVE BEEN
THE COMMISSION'S CLAIM OF "AN UNLIMITED RIGHT OF ACCESS TO THE
RESPONDENTS' PAPERS WITH REFERENCE TO THE POSSIBLE EXISTENCE OF
PRACTICES IN VIOLATION OF SEC. 5."  264 U.S. AT 305.  THE COURT SAID:
"IT IS CONTRARY TO THE FIRST PRINCIPLES OF JUSTICE TO ALLOW A SEARCH
THROUGH ALL THE RESPONDENTS' RECORDS, RELEVANT OR IRRELEVANT, IN THE
HOPE THAT SOMETHING WILL TURN UP."  P. 306.  CF. SILVERTHORNE LUMBER
CO. V. UNITED STATES, SUPRA, NOTE 39. 

HOWEVER IN WHEELER V. UNITED STATES, 226 U.S. 478, WHERE NO ELEMENT
OF ACTUAL SEARCH AND SEIZURE WAS PRESENT, A SUBPOENA WAS ENFORCED WHICH
CALLED FOR COPIES OF ALL LETTERS AND TELEGRAMS, ALL CASH BOOKS,
LEDGERS, JOURNALS AND OTHER ACCOUNT BOOKS OF THE CORPORATION COVERING A
PERIOD OF FIFTEEN MONTHS; CF. INTERSTATE COMMERCE COMMISSION V.
BRIMSON, 154 U.S. 447.  AND IN BROWN V. UNITED STATES, 276 U.S. 134,
THE SUBPOENA CALLED FOR ALL LETTERS, TELEGRAMS OR COPIES THEREOF
PASSING BETWEEN A NATIONAL TRADE ASSOCIATION AND ITS MEMBERS, INCLUDING
THEIR OFFICERS AND AGENTS, OVER A PERIOD OF TWO AND ONE-HALF YEARS,
WITH REFERENCE TO EIGHTEEN DIFFERENT ITEMS.  THE COURT, BY MR. JUSTICE
SUTHERLAND, SAID:  "THE SUBPOENA  ...  SPECIFIES A REASONABLE PERIOD OF
TIME AND, WITH REASONABLE PARTICULARITY, THE SUBJECTS TO WHICH THE
DOCUMENTS CALLED FOR RELATE.  THE QUESTION IS RULED, NOT BY HALE V.
HENKEL, BUT BY CONSOLIDATED RENDERING CO. V. VERMONT, 207 U.S. 541, 553
554, AND WHEELER V. UNITED STATES," SUPRA. 

WITH REFERENCE TO THE BREADTH OF THE SUBPOENA OR ORDER FOR PRODUCTION
IN THE SCOPE OF WHAT IS CALLED FOR, IN ADDITION TO THE AUTHORITIES
CITED IN THIS NOTE AND NOTE 45, SEE HAMMOND PACKING CO. V. ARKANSAS,
212 U.S. 322; UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707;
HANDLER, OP. CIT. SUPRA, AT 913 FF. 

FN41  SEE NOTE 36. 

FN42  E.G., HALE V. HENKEL, 201 U.S. 43; WILSON V. UNITED STATES, 221
U.S. 361, 372. 

FN43  SMITH V. INTERSTATE COMMERCE COMMISSION, 245 U.S. 33; BALTIMORE
& OHIO R. CO. V. INTERSTATE COMMERCE COMMISSION, 221 U.S. 612; CF.
INTERSTATE COMMERCE COMMISSION V. GOODRICH TRANSIT CO., 224 U.S. 194;
HARRIMAN V. INTERSTATE COMMERCE COMMISSION, 211 U.S. 407, 419.  AND SEE
HANDLER, OP. CIT. SUPRA, 918 FF. 

FN44  CF. THE AUTHORITIES CITED IN NOTES 42 AND 43. 

FN45  CF. GO-BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344, 357;
BOYD V. UNITED STATES, 116 U.S. AT 630, AND NOTE 40 SUPRA. 

FN46  THE SUBPOENA IN NO. 61 CALLED FOR PRODUCTION OF: 

"ALL OF YOUR BOOKS, PAPERS AND DOCUMENTS SHOWING THE HOURS WORKED BY
AND WAGES PAID TO EACH OF YOUR EMPLOYEES BETWEEN OCTOBER 28, 1938, AND
THE DATE HEREOF, INCLUDING ALL PAYROLL LEDGERS, TIME SHEETS, TIME CARDS
AND TIME CLOCK RECORDS, AND ALL YOUR BOOKS, PAPERS AND DOCUMENTS
SHOWING THE DISTRIBUTION OF PAPERS OUTSIDE THE STATE OF OKLAHOMA, THE
DISSEMINATION OF NEWS OUTSIDE THE STATE OF OKLAHOMA, THE SOURCE AND
RECEIPT OF NEWS FROM OUTSIDE THE STATE OF OKLAHOMA, AND THE SOURCE AND
RECEIPT OF ADVERTISEMENTS OF NATIONALLY ADVERTISED GOODS." 

THE SPECIFICATION IN NO. 63 WAS SUBSTANTIALLY IDENTICAL EXCEPT FOR
THE PERIOD OF TIME COVERED BY THE DEMAND. 

FN47  SEE THE LANGUAGE OF THE SECTION, NOTE 24 SUPRA.  OF COURSE
VIOLATION COULD BE FOUND ONLY IN SITUATIONS WHERE COVERAGE WOULD
EXIST.  AUTHORITY TO INVESTIGATE THE EXISTENCE OF VIOLATIONS
ACCORDINGLY INCLUDED AUTHORITY TO INVESTIGATE COVERAGE.  CF. ENDICOTT
JOHNSON CORP. V. PERKINS, 317 U.S. 501; MYERS V. BETHLEHEM CORP., 303
U.S. 41, DISCUSSED IN THE TEXT HEREIN AT NOTES 49-51; AND AUTHORITIES
CITED IN NOTE 32 SUPRA. 

FN48  THE DESCRIPTION WAS MADE WITH ALL OF THE PARTICULARITY THE
NATURE OF THE INQUIRY AND THE ADMINISTRATOR'S SITUATION WOULD PERMIT. 
SEE NOTE 46.  THE SUBPOENAS WERE LIMITED TO THE BOOKS, PAPERS AND
DOCUMENTS OF THE RESPECTIVE CORPORATIONS, TO WHICH ALONE THEY WERE
ADDRESSED.  THEY REQUIRED PRODUCTION AT SPECIFIED TIMES AND PLACES IN
THE CITIES OF PUBLICATION AND STATED THE PURPOSE OF THE INVESTIGATION
TO BE ONE AFFECTING THE RESPONDENT, PURSUANT TO THE PROVISIONS OF SECS.
9 AND 11(C), "REGARDING COMPLAINTS OF VIOLATIONS BY SAID COMPANY OF
THE AUTHORITIES CITED IN NOTES 32 AND 45. 

FN49  THIS COURT, IN GRANTING CERTIORARI IN THE ENDICOTT JOHNSON
CASE, DID SO, AMONG OTHER REASONS, "BECAUSE OF PROBABLE CONFLICT WITH"
GENERAL TOBACCO & GROCERY CO. V. FLEMING, 125 F.2D 596, A CASE ARISING
UNDER THE FAIR LABOR STANDARDS ACT.  317 U.S. AT 502. 

FN50  TO THE ARGUMENT OF "IRREPARABLE DAMAGE," THE COURT SAID:  "THE
CONTENTION IS AT WAR WITH THE LONG SETTLED RULE OF JUDICIAL
ADMINISTRATION THAT NO ONE IS ENTITLED TO JUDICIAL RELIEF FOR A
SUPPOSED OR THREATENED INJURY UNTIL THE PRESCRIBED ADMINISTRATIVE
REMEDY HAS BEEN EXHAUSTED.... OBVIOUSLY, THE RULE  ...  CANNOT BE
CIRCUMVENTED BY ASSERTING THAT THE CHARGE ON WHICH THE COMPLAINT RESTS
IS GROUNDLESS AND THAT THE MERE HOLDING OF THE PRESCRIBED
ADMINISTRATIVE HEARING WOULD RESULT IN IRREPARABLE DAMAGE.  LAWSUITS
ALSO OFTEN PROVE TO HAVE BEEN GROUNDLESS; BUT NO WAY HAS BEEN
DISCOVERED OF RELIEVING A DEFENDANT FROM THE NECESSITY OF A TRIAL TO
ESTABLISH THE FACT."  303 U.S. AT 50. 

FN51  IT IS TRUE THAT IN THE MYERS SITUATION THE BOARD'S
DETERMINATION IS QUASI-JUDICIAL, IS GIVEN FINALITY AS TO THE FACTS IF
THERE IS EVIDENCE TO SUSTAIN ITS FINDINGS, NATIONAL LABOR RELATIONS
ACT, SEC. 10(E)(49 STAT. 454), AND IS EXPRESSLY MADE EXCLUSIVE, IBID.,
SEC. 10(A), WHEREAS IN THE SITUATIONS NOW PRESENTED THE ADMINISTRATOR'S
INVESTIGATION IS ONLY PRELIMINARY TO INSTITUTING PROCEEDINGS IN COURT
AND THUS HAS NONE OF THE FINALITY OR QUASI-JUDICIAL CHARACTER GIVEN TO
THE BOARD'S DETERMINATION.  BUT, AS THE COURT NOTED, THE BOARD ALSO HAS
PRELIMINARY INVESTIGATIVE AUTHORITY, INCIDENTAL TO PREPARATION FOR THE
HEARING, TO WHICH ITS SUBPOENA POWER APPLIES, NATIONAL LABOR RELATIONS
ACT, SEC. 11(49 STAT. 455, 456); AND, AS WE HAVE SAID, IF THE COURTS
ARE FORBIDDEN TO DETERMINE COVERAGE PRIOR TO THE BOARD'S QUASI-JUDICIAL
PROCEEDING FOR DECIDING THAT QUESTION, IT WOULD SEEM NECESSARILY TO
FOLLOW THAT THEY ARE FORBIDDEN ALSO TO DECIDE IT PRIOR TO THE BOARD'S
PRELIMINARY INVESTIGATION TO DETERMINE WHETHER THE PROCEEDING SHALL BE
INSTITUTED. 

THE MERE FACT THAT THE FIRST STAGE OF FORMAL ADJUDICATION IS
ADMINISTRATIVE IN THE ONE CASE AND JUDICIAL IN THE OTHER WOULD SEEM TO
MAKE NO DIFFERENCE WITH THE POWER OF CONGRESS TO AUTHORIZE EITHER THE
PRELIMINARY INVESTIGATION OR THE USE OF THE SUBPOENA POWER IN AID OF
IT. 

FN52  THE EVIDENCE THAT THE COMPANY OR ITS EMPLOYEES WERE ENGAGED IN
COMMERCE, ETC., WAS SUPPLIED LARGELY BY IT IN THE RETURN TO THE RULE TO
SHOW CAUSE AND THE SUPPORTING AFFIDAVITS, CONSISTING OF ADMISSIONS AND
STATEMENTS OF FACT CONCERNING ITS MODES OF DOING BUSINESS.  THE
ADMISSIONS OBVIOUSLY WERE MADE UPON PETITIONER'S BROAD THEORY THAT THE
PUBLISHING BUSINESS IS NOT SUBJECT TO THE ACT OR TO THE COMMERCE
POWER.  BUT THOSE CONCLUSIONS DO NOT NULLIFY THE FACTUAL CHARACTER OF
THE ADMISSIONS AND, SO TAKEN, THEY ADEQUATELY SUSTAIN THE APPELLATE
COURT'S CONCLUSION OF "PROBABLE CAUSE" OF COVERAGE. 

FN53  SEE NOTES 3, 4.  THE ADMINISTRATOR'S ALLEGATIONS, MORE GENERAL
THAN IN NO. 61, MERELY SET FORTH THAT THE COMPANY WAS A NEWSPAPER
PUBLISHER, THAT THE ADMINISTRATOR HAD REASON TO BELIEVE IT WAS
VIOLATING THE ACT, AND THAT IT WAS "ENGAGED IN COMMERCE AND IN THE
PRODUCTION OF GOODS FOR COMMERCE."  THIS CONCLUSION WAS DENIED.  THE
ADMISSIONS OF THE RETURN, INCLUDING THE AFFIDAVITS, SUPPLIED ONLY THE
PERTINENT FACTS IN RELATION TO COVERAGE THAT THE RESPONDENT, NEWS
PRINTING CO., WAS ENGAGED IN THE BUSINESS OF PUBLISHING AND
DISTRIBUTING THE "PATERSON EVENING NEWS," A DAILY PAPER, THAT LESS THAN
ONE PER CENT OF ITS CIRCULATION OF MORE THAN 23,000 COPIES, OR A DAILY
AVERAGE OF 278 COPIES, WAS DISTRIBUTED OUTSIDE NEW JERSEY, WHERE THE
PAPER WAS PUBLISHED, AND THAT THE BUSINESS WAS CONDUCTED IN THE SAME
MANNER AS OTHER "LOCAL" PAPERS ACCORDING TO THE METHODS SHOWN BY THE
AFFIDAVITS.  THESE DISCLOSED NOTHING MATERIAL CONCERNING INTERSTATE
PHASES OF SUCH BUSINESSES GENERALLY, EXCEPT AS MIGHT BE INFERRED FROM
STATEMENTS THAT THEY PUBLISH NATIONAL AND INTERNATIONAL AS WELL AS
LOCAL NEWS, AND MUST DO SO AS QUICKLY AS POSSIBLE AFTER THE EVENTS
OCCUR. 

FN54  SECTION 9 OF THE FEDERAL TRADE COMMISSION ACT AUTHORIZES THE
ADMINISTRATOR TO INVOKE THE AID OF THE COURT "IN CASE OF DISOBEDIENCE
TO A SUBPOENA" AND THE COURT IS AUTHORIZED TO GIVE ASSISTANCE "IN CASE
OF CONTUMACY OR REFUSAL TO OBEY A SUBPOENA ISSUED TO ANY CORPORATION OR
OTHER PERSON  ..."  CF. NOTE 24. 

FN55  THE BILL OF DISCOVERY IN EQUITY WOULD SEEM TO FURNISH AN
INSTANCE.  CF. SINCLAIR REFINING CO. V. JENKINS PETROLEUM CO., 289 U.S.
689, 696-697.  SEE ALSO THE PROVISIONS FOR PRETRIAL EXAMINATION AND THE
TAKING OF DEPOSITIONS, FEDERAL RULES OF CIVIL PROCEDURE, RULES 26(B),
30(D), 45; UNION CENTRAL LIFE INS. CO. V. BURGER, 27 F.SUPP.  556;
BLOOMER V. SIRIAN LAMP CO., 4 F.R.D. 167, 8 F.R.S. 26B.31, CASE 3;
LEWIS V. UNITED AIR LINES TRANSPORT CORP., 27 F.SUPP.  946, 947.  THE
POWER OF CONGRESS ITSELF TO CALL FOR INFORMATION PRESENTS A RELATED
ILLUSTRATION.  MCGRAIN V. DAUGHERTY, 273 U.S. 135, 156-158. 

FN56  IN GENERAL TOBACCO & GROCERY CO. V. FLEMING, 125 F.2D 596, 599,
THE COURT SAID:  "IN THE EXERCISE OF THE JUDICIAL POWER TO REVIEW
QUESTIONS OF LAW, AS CONFERRED BY AN ACT OF CONGRESS, THE SEAL OF A
UNITED STATES COURT SHOULD NOT BECOME A MERE RUBBER STAMP FOR THE
APPROVAL OF ARBITRARY ACTION BY AN ADMINISTRATIVE AGENCY."  IN THIS
CASE, NO. 63, THE DISTRICT COURT SAID:  "...  THE FUNCTIONS OF THE
COURTS REMAIN, AND THOSE FUNCTIONS ARE NOT MERELY TO ACT AS AN ADJUNCT
OF ADMINISTRATIVE BODIES...."  49 F.SUPP.  659, 661. 

FN57  THE ISSUES OF AUTHORITY TO CONDUCT THE INVESTIGATION, RELEVANCY
OF THE MATERIALS SOUGHT, AND BREADTH OF THE DEMAND ARE NEITHER MINOR
NOR MINISTERIAL MATTERS.  NOR WOULD THERE BE ANY FAILURE TO SATISFY
FULLY THE DISCRETIONARY POWER IMPLIED IN THE STATUTE'S USE OF THE WORD
"MAY," RATHER THAN "SHALL," SEE NOTE 24, IN AUTHORIZING THE COURT TO
ENFORCE THE SUBPOENAS.  IT WOULD BE GOING FAR TO SAY THAT CONGRESS
COULD NOT PROCEED UPON THIS BASIS, BUT COULD GO FORWARD ONLY BY
REQUIRING A SHOWING OF PROBABLE CAUSE OF COVERAGE IN THE SENSE OF
PROBABILITY IN FACT OF COVERAGE.  CF. NOTE 44 AND TEXT.  COVERAGE IS
BUT ONE ELEMENT IN VIOLATION AND IF PROBABLE CAUSE, IN THAT SENSE, MUST
BE SHOWN CONCERNING IT, IT IS DIFFICULT TO UNDERSTAND WHY PROBABLE
CAUSE MUST NOT BE SHOWN ALSO CONCERNING EXEMPTIONS, SEE MARTIN
TYPEWRITER CO. V. WALLING, 135 F.2D 918; WALLING V. LA BELLE S.S. CO.,
148 F.2D 198, OR ANY OTHER ESSENTIAL ELEMENT IN VIOLATION. 

FN58  SEE NOTE 50 SUPRA. 

FN59  SEE NOTE 30. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE MURPHY, DISSENTING. 

IT IS NOT WITHOUT DIFFICULTY THAT I DISSENT FROM A PROCEDURE THE
CONSTITUTIONALITY OF WHICH HAS BEEN ESTABLISHED FOR MANY YEARS.  BUT I
AM UNABLE TO APPROVE THE USE OF NON-JUDICIAL SUBPOENAS ISSUED BY
ADMINISTRATIVE AGENTS. 

ADMINISTRATIVE LAW HAS INCREASED GREATLY IN THE PAST FEW YEARS AND
SEEMS DESTINED TO BE AUGMENTED EVEN FURTHER IN THE FUTURE.  BUT
ATTENDING THIS GROWTH SHOULD BE A NEW AND BROADER SENSE OF
RESPONSIBILITY ON THE PART OF ADMINISTRATIVE AGENCIES AND OFFICIALS. 
EXCESSIVE USE OR ABUSE OF AUTHORITY CAN NOT ONLY DESTROY MAN'S INSTINCT
FOR LIBERTY BUT WILL EVENTUALLY UNDO THE ADMINISTRATIVE PROCESSES
THEMSELVES.  OUR HISTORY IS NOT WITHOUT A PRECEDENT OF A SUCCESSFUL
REVOLT AGAINST A RULER WHO "SENT HITHER SWARMS OF OFFICERS TO HARASS
OUR PEOPLE." 

PERHAPS WE ARE TOO FAR REMOVED FROM THE EXPERIENCES OF THE PAST TO
APPRECIATE FULLY THE CONSEQUENCES THAT MAY RESULT FROM AN IRRESPONSIBLE
THOUGH WELL-MEANING USE OF THE SUBPOENA POWER.  TO ALLOW A NON-JUDICIAL
OFFICER, UNARMED WITH JUDICIAL PROCESS, TO DEMAND THE BOOKS AND PAPERS
OF AN INDIVIDUAL IS AN OPEN INVITATION TO ABUSE OF THAT POWER.  IT IS
NO ANSWER THAT THE INDIVIDUAL MAY REFUSE TO PRODUCE THE MATERIAL
DEMANDED.  MANY PERSONS HAVE YIELDED SOLELY BECAUSE OF THE AIR OF
AUTHORITY WITH WHICH THE DEMAND IS MADE, A DEMAND THAT CANNOT BE
ENFORCED FORCED WITHOUT SUBSEQUENT JUDICIAL AID.  MANY INVASIONS OF
PRIVATE RIGHTS THUS OCCUR WITHOUT THE RESTRAINING HAND OF THE JUDICIARY
EVER INTERVENING. 

ONLY BY CONFINING THE SUBPOENA POWER EXCLUSIVELY TO THE JUDICIARY CAN
THERE BE ANY INSURANCE AGAINST THIS CORROSION OF LIBERTY.  STATUTORY
ENFORCEMENT WOULD NOT THEREBY BE MADE IMPOSSIBLE.  INDEED, IT WOULD BE
MADE EASIER.  A PEOPLE'S DESIRE TO COOPERATE WITH THE ENFORCEMENT OF A
STATUTE IS IN DIRECT PROPORTION TO THE RESPECT FOR INDIVIDUAL RIGHTS
SHOWN IN THE ENFORCEMENT PROCESS.  LIBERTY IS TOO PRICELESS TO BE
FORFEITED THROUGH THE ZEAL OF AN ADMINISTRATIVE AGENT. 
..END :



IN RE YAMASHITA, 327 U.S. 1 


ARGUED JANUARY 7, 8, 1946.  - DECIDED FEBRUARY 4, 1946.  - LEAVE AND
PETITION DENIED. 


PRIOR TO SEPTEMBER 3, 1945, PETITIONER WAS THE COMMANDING GENERAL OF
THE FOURTEENTH ARMY GROUP OF THE IMPERIAL JAPANESE ARMY IN THE
PHILIPPINE ISLANDS.  ON THAT DAY, HE SURRENDERED TO THE UNITED STATES
ARMY AND BECAME A PRISONER OF WAR.  RESPONDENT WAS THE COMMANDING
GENERAL OF THE UNITED STATES ARMY FORCES, WESTERN PACIFIC, WHOSE
COMMAND EMBRACED THE PHILIPPINE ISLANDS.  RESPONDENT APPOINTED A
MILITARY COMMISSION TO TRY THE PETITIONER ON A CHARGE OF VIOLATION OF
THE LAW OF WAR.  THE GIST OF THE CHARGE WAS THAT PETITIONER HAD FAILED
IN HIS DUTY AS AN ARMY COMMANDER TO CONTROL THE OPERATIONS OF HIS
TROOPS, "PERMITTING THEM TO COMMIT" SPECIFIED ATROCITIES AGAINST THE
CIVILIAN POPULATION AND PRISONERS OF WAR.  PETITIONER WAS FOUND GUILTY
AND SENTENCED TO DEATH.  HELD: 

1.  THE MILITARY COMMISSION APPOINTED TO TRY THE PETITIONER WAS
LAWFULLY CREATED.  P. 9. 

(A)  NATURE OF THE AUTHORITY TO CREATE MILITARY COMMISSIONS FOR THE
TRIAL OF ENEMY COMBATANTS FOR OFFENSES AGAINST THE LAW OF WAR, AND
PRINCIPLES GOVERNING THE EXERCISE OF JURISDICTION BY SUCH COMMISSIONS,
CONSIDERED.  CITING EX PARTE QUIRIN, 317 U.S. 1, AND OTHER CASES.  PP.
7-9. 

(B)  A MILITARY COMMISSION MAY BE APPOINTED BY ANY FIELD COMMANDER,
OR BY ANY COMMANDER COMPETENT TO APPOINT A GENERAL COURT MARTIAL, AS
WAS RESPONDENT BY ORDER OF THE PRESIDENT.  P. 10. 

(C)  THE ORDER CREATING THE MILITARY COMMISSION WAS IN CONFORMITY
WITH THE ACT OF CONGRESS (10 U.S.C. SECS. 1471-1593) SANCTIONING THE
CREATION OF SUCH TRIBUNALS FOR THE TRIAL OF OFFENSES AGAINST THE LAW OF
WAR COMMITTED BY ENEMY COMBATANTS.  P. 11. 

2.  TRIAL OF THE PETITIONER BY THE MILITARY COMMISSION WAS LAWFUL,
ALTHOUGH HOSTILITIES HAD CEASED.  P. 12. 

(A)  A VIOLATION OF THE LAW OF WAR, COMMITTED BEFORE THE CESSATION OF
HOSTILITIES, MAY LAWFULLY BE TRIED BY A MILITARY COMMISSION AFTER
HOSTILITIES HAVE CEASED, AT LEAST UNTIL PEACE HAS BEEN OFFICIALLY
RECOGNIZED BY TREATY OR PROCLAMATION BY THE POLITICAL BRANCH OF THE
GOVERNMENT.  P. 12. 

(B)  TRIAL OF THE PETITIONER BY THE MILITARY COMMISSION WAS
AUTHORIZED BY THE POLITICAL BRANCH OF THE GOVERNMENT, BY MILITARY
COMMAND, BY INTERNATIONAL LAW AND USAGE, AND BY THE TERMS OF THE
SURRENDER OF THE JAPANESE GOVERNMENT.  P. 13. 

3.  THE CHARGE PREFERRED AGAINST THE PETITIONER WAS OF A VIOLATION OF
THE LAW OF WAR.  P. 13. 

(A)  THE LAW OF WAR IMPOSES ON AN ARMY COMMANDER A DUTY TO TAKE SUCH
APPROPRIATE MEASURES AS ARE WITHIN HIS POWER TO CONTROL THE TROOPS
UNDER HIS COMMAND FOR THE PREVENTION OF ACTS WHICH ARE VIOLATIONS OF
THE LAW OF WAR AND WHICH ARE LIKELY TO ATTEND THE OCCUPATION OF HOSTILE
TERRITORY BY AN UNCONTROLLED SOLDIERY; AND HE MAY BE CHARGED WITH
PERSONAL RESPONSIBILITY FOR HIS FAILURE TO TAKE SUCH MEASURES WHEN
VIOLATIONS RESULT.  PP. 14, 16. 

(B)  WHAT MEASURES, IF ANY, PETITIONER TOOK TO PREVENT THE ALLEGED
VIOLATIONS OF THE LAW OF WAR, AND WHETHER SUCH MEASURES AS HE MAY HAVE
TAKEN WERE APPROPRIATE AND SUFFICIENT TO DISCHARGE THE DUTY IMPOSED
UPON HIM, WERE QUESTIONS WITHIN THE PECULIAR COMPETENCE OF THE MILITARY
OFFICERS COMPOSING THE COMMISSION AND WERE FOR IT TO DECIDE.  P. 16. 

(C)  CHARGES OF VIOLATIONS OF THE LAW OF WAR TRIABLE BEFORE A
MILITARY TRIBUNAL NEED NOT BE STATED WITH THE PRECISION OF A COMMON LAW
INDICTMENT.  P. 17. 

(D)  THE ALLEGATIONS OF THE CHARGE HERE, TESTED BY ANY REASONABLE
STANDARD, SUFFICIENTLY SET FORTH A VIOLATION OF THE LAW OF WAR; AND THE
MILITARY COMMISSION HAD AUTHORITY TO TRY AND TO DECIDE THE ISSUE WHICH
IT RAISED.  P. 17. 

4.  IN ADMITTING ON BEHALF OF THE PROSECUTION A DEPOSITION AND
HEARSAY AND OPINION EVIDENCE, THE MILITARY COMMISSION DID NOT VIOLATE
ANY ACT OF CONGRESS, TREATY OR MILITARY COMMAND DEFINING THE
COMMISSION'S AUTHORITY.  PP. 18, 23. 

(A)  THE ARTICLES OF WAR, INCLUDING ARTICLES 25 AND 38, ARE NOT
APPLICABLE TO THE TRIAL OF AN ENEMY COMBATANT BY A MILITARY COMMISSION
FOR VIOLATIONS OF THE LAW OF WAR, AND IMPOSED NO RESTRICTIONS UPON THE
PROCEDURE TO BE FOLLOWED IN SUCH TRIAL.  PP. 19, 20. 

(B)  ARTICLE 63 OF THE GENEVA CONVENTION OF 1929, WHICH PROVIDES THAT
"SENTENCE MAY BE PRONOUNCED AGAINST A PRISONER OF WAR ONLY BY THE SAME
COURTS AND ACCORDING TO THE SAME PROCEDURE AS IN THE CASE OF PERSONS
BELONGING TO THE ARMED FORCES OF THE DETAINING POWER," DOES NOT REQUIRE
THAT ARTICLES 25 AND 38 OF THE ARTICLES OF WAR BE APPLIED IN THE TRIAL
OF THE PETITIONER.  ARTICLE 63 REFERS TO SENTENCE "PRONOUNCED AGAINST A
PRISONER OF WAR" FOR AN OFFENSE COMMITTED WHILE A PRISONER OF WAR, AND
NOT FOR A VIOLATION OF THE LAW OF WAR COMMITTED WHILE A COMBATANT.  P.
20. 

(C)  THE COURT EXPRESSES NO OPINION ON THE QUESTION OF THE WISDOM OF
CONSIDERING SUCH EVIDENCE AS WAS RECEIVED IN THIS PROCEEDING, NOR ON
THE QUESTION WHETHER THE ACTION OF A MILITARY TRIBUNAL IN ADMITTING
EVIDENCE WHICH CONGRESS OR CONTROLLING MILITARY COMMAND HAS DIRECTED TO
BE EXCLUDED MAY BE DRAWN IN QUESTION BY PETITION FOR HABEAS CORPUS OR
PROHIBITION.  P. 23. 

5.  ON AN APPLICATION FOR HABEAS CORPUS, THE COURT IS NOT CONCERNED
WITH THE GUILT OR INNOCENCE OF THE PETITIONER.  P. 8. 

6.  BY SANCTIONING TRIALS OF ENEMY ALIENS BY MILITARY COMMISSION FOR
OFFENSES AGAINST THE LAW OF WAR, CONGRESS RECOGNIZED THE RIGHT OF THE
ACCUSED TO MAKE A DEFENSE, AND DID NOT FORECLOSE THEIR RIGHT TO CONTEND
THAT THE CONSTITUTION OR LAWS OF THE UNITED STATES WITHHOLD AUTHORITY
TO PROCEED WITH THE TRIAL.  P. 9. 

7.  THE COURT DOES NOT APPRAISE THE EVIDENCE ON WHICH THE PETITIONER
HERE WAS CONVICTED.  P. 17. 

8.  THE MILITARY COMMISSION'S RULINGS ON EVIDENCE AND ON THE MODE OF
CONDUCTING THE PROCEEDINGS AGAINST THE PETITIONER ARE NOT REVIEWABLE BY
THE COURTS, BUT ONLY BY THE REVIEWING MILITARY AUTHORITIES.  FROM THIS
VIEWPOINT IT IS UNNECESSARY TO CONSIDER WHAT, IN OTHER SITUATIONS, THE
FIFTH AMENDMENT MIGHT REQUIRE.  PP. 8, 23. 

9.  ARTICLE 60 OF THE GENEVA CONVENTION OF 1929, WHICH PROVIDES THAT
"AT THE OPENING OF A JUDICIAL PROCEEDING DIRECTED AGAINST A PRISONER OF
WAR, THE DETAINING POWER SHALL ADVISE THE REPRESENTATIVE OF THE
PROTECTING POWER THEREOF AS SOON AS POSSIBLE, AND ALWAYS BEFORE THE
DATE SET FOR THE OPENING OF THE TRIAL," APPLIES ONLY TO PERSONS WHO ARE
SUBJECTED TO JUDICIAL PROCEEDINGS FOR OFFENSES COMMITTED WHILE
PRISONERS OF WAR.  P. 23. 

10.  THE DETENTION OF THE PETITIONER FOR TRIAL AND HIS DETENTION UPON
HIS CONVICTION, SUBJECT TO THE PRESCRIBED REVIEW BY THE MILITARY
AUTHORITIES, WERE LAWFUL.  P. 25. 

IN RE YAMASHITA. 

NO. 61, MISC. APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF
HABEAS CORPUS AND WRIT OF PROHIBITION* . 

*TOGETHER WITH NO. 672, YAMASHITA V. STYER, COMMANDING GENERAL, ON
PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE
COMMONWEALTH OF THE PHILIPPINES.  FOR EARLIER ORDERS IN THESE CASES SEE
326 U.S. 693, 694. 

NO. 61, MISC.  APPLICATION FOR LEAVE TO FILE A PETITION FOR WRITS OF
HABEAS CORPUS AND PROHIBITION IN THIS COURT CHALLENGING THE
JURISDICTION AND LEGAL AUTHORITY OF A MILITARY COMMISSION WHICH
CONVICTED APPLICANT OF A VIOLATION OF THE LAW OF WAR AND SENTENCED HIM
TO BE HANGED.  DENIED. 

NO. 672.  PETITION FOR CERTIORARI TO REVIEW AN ORDER OF THE SUPREME
COURT OF THE COMMONWEALTH OF THE PHILIPPINES, 42 OFF.  GAZ.  664,
DENYING AN APPLICATION FOR WRITS OF HABEAS CORPUS AND PROHIBITION
LIKEWISE CHALLENGING THE JURISDICTION AND LEGAL AUTHORITY OF THE
MILITARY COMMISSION WHICH TRIED AND CONVICTED PETITIONER.  DENIED. 

COLONEL HARRY E. CLARKE, PRO HAC VICE, CAPTAIN A. FRANK REEL AND
CAPTAIN MILTON SANDBERG ARGUED THE CAUSE FOR PETITIONER.  WITH THEM ON
THE BRIEF WERE LT. COL. WALTER C. HENDRIX, LT. COL. JAMES G. FELDHAUS
AND MAJOR GEORGE F. GUY. 

SOLICITOR GENERAL MCGRATH AND ASSISTANT SOLICITOR GENERAL JUDSON
ARGUED THE CAUSE FOR RESPONDENT.  WITH THEM ON THE BRIEF WERE THE JUDGE
ADVOCATE GENERAL OF THE ARMY, FREDERICK BERNAYS WIENER, GEORGE THOMAS
WASHINGTON, DAVID REICH, IRVING HILL, COLONEL WILLIAM J. HUGHES, JR.
AND CAPTAIN D. C. HILL. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

NO. 61 MISCELLANEOUS IS AN APPLICATION FOR LEAVE TO FILE A PETITION
FOR WRITS OF HABEAS CORPUS AND PROHIBITION IN THIS COURT.  NO. 672 IS A
PETITION FOR CERTIORARI TO REVIEW AN ORDER OF THE SUPREME COURT OF THE
COMMONWEALTH OF THE PHILIPPINES (28 U.S.C. SEC. 349), DENYING
PETITIONER'S APPLICATION TO THAT COURT FOR WRITS OF HABEAS CORPUS AND
PROHIBITION.  AS BOTH APPLICATIONS RAISE SUBSTANTIALLY LIKE QUESTIONS,
AND BECAUSE OF THE IMPORTANCE AND NOVELTY OF SOME OF THOSE PRESENTED,
WE SET THE TWO APPLICATIONS DOWN FOR ORAL ARGUMENT AS ONE CASE. 

FROM THE PETITIONS AND SUPPORTING PAPERS IT APPEARS THAT PRIOR TO
SEPTEMBER 3, 1945, PETITIONER WAS THE COMMANDING GENERAL OF THE
FOURTEENTH ARMY GROUP OF THE IMPERIAL JAPANESE ARMY IN THE PHILIPPINE
ISLANDS.  ON THAT DATE HE SURRENDERED TO AND BECAME A PRISONER OF WAR
OF THE UNITED STATES ARMY FORCES IN BAGUIO, PHILIPPINE ISLANDS.  ON
SEPTEMBER 25TH, BY ORDER OF RESPONDENT, LIEUTENANT GENERAL WILHELM D.
STYER, COMMANDING GENERAL OF THE UNITED STATES ARMY FORCES, WESTERN
PACIFIC, WHICH COMMAND EMBRACES THE PHILIPPINE ISLANDS, PETITIONER WAS
SERVED WITH A CHARGE PREPARED BY THE JUDGE ADVOCATE GENERAL'S
DEPARTMENT OF THE ARMY, PURPORTING TO CHARGE PETITIONER WITH A
VIOLATION OF THE LAW OF WAR.  ON OCTOBER 8, 1945, PETITIONER, AFTER
PLEADING NOT GUILTY TO THE CHARGE, WAS HELD FOR TRIAL BEFORE A MILITARY
COMMISSION OF FIVE ARMY OFFICERS APPOINTED BY ORDER OF GENERAL STYER. 
THE ORDER APPOINTED SIX ARMY OFFICERS, ALL LAWYERS, AS DEFENSE
COUNSEL.  THROUGHOUT THE PROCEEDINGS WHICH FOLLOWED, INCLUDING THOSE
BEFORE THIS COURT, DEFENSE COUNSEL HAVE DEMONSTRATED THEIR PROFESSIONAL
SKILL AND RESOURCEFULNESS AND THEIR PROPER ZEAL FOR THE DEFENSE WITH
WHICH THEY WERE CHARGED. 

ON THE SAME DATE A BILL OF PARTICULARS WAS FILED BY THE PROSECUTION,
AND THE COMMISSION HEARD A MOTION MADE IN PETITIONER'S BEHALF TO
DISMISS THE CHARGE ON THE GROUND THAT IT FAILED TO STATE A VIOLATION OF
THE LAW OF WAR.  ON OCTOBER 29TH THE COMMISSION WAS RECONVENED, A
SUPPLEMENTAL BILL OF PARTICULARS WAS FILED, AND THE MOTION TO DISMISS
WAS DENIED.  THE TRIAL THEN PROCEEDED UNTIL ITS CONCLUSION ON DECEMBER
7, 1945, THE COMMISSION HEARING TWO HUNDRED AND EIGHTY-SIX WITNESSES,
WHO GAVE OVER THREE THOUSAND PAGES OF TESTIMONY.  ON THAT DATE
PETITIONER WAS FOUND GUILTY OF THE OFFENSE AS CHARGED AND SENTENCED TO
DEATH BY HANGING. 

THE PETITIONS FOR HABEAS CORPUS SET UP THAT THE DETENTION OF
PETITIONER FOR THE PURPOSE OF THE TRIAL WAS UNLAWFUL FOR REASONS WHICH
ARE NOW URGED AS SHOWING THAT THE MILITARY COMMISSION WAS WITHOUT
LAWFUL AUTHORITY OR JURISDICTION TO PLACE PETITIONER ON TRIAL, AS
FOLLOWS: 

(A)  THAT THE MILITARY COMMISSION WHICH TRIED AND CONVICTED
PETITIONER WAS NOT LAWFULLY CREATED, AND THAT NO MILITARY COMMISSION TO
TRY PETITIONER FOR VIOLATIONS OF THE LAW OF WAR COULD LAWFULLY BE
CONVENED AFTER THE CESSATION OF HOSTILITIES BETWEEN THE ARMED FORCES OF
THE UNITED STATES AND JAPAN; 

(B)  THAT THE CHARGE PREFERRED AGAINST PETITIONER FAILS TO CHARGE HIM
WITH A VIOLATION OF THE LAW OF WAR; 

(C)  THAT THE COMMISSION WAS WITHOUT AUTHORITY AND JURISDICTION TO
TRY AND CONVICT PETITIONER BECAUSE THE ORDER GOVERNING THE PROCEDURE OF
THE COMMISSION PERMITTED THE ADMISSION IN EVIDENCE OF DEPOSITIONS,
AFFIDAVITS AND HEARSAY AND OPINION EVIDENCE, AND BECAUSE THE
COMMISSION'S RULINGS ADMITTING SUCH EVIDENCE WERE IN VIOLATION OF THE
25TH AND 38TH ARTICLES OF WAR (10 U.S.C. SECS. 1496, 1509) AND THE
GENEVA CONVENTION (47 STAT. 2021), AND DEPRIVED PETITIONER OF A FAIR
TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT; 

(D)  THAT THE COMMISSION WAS WITHOUT AUTHORITY AND JURISDICTION IN
THE PREMISES BECAUSE OF THE FAILURE TO GIVE ADVANCE NOTICE OF
PETITIONER'S TRIAL TO THE NEUTRAL POWER REPRESENTING THE INTERESTS OF
JAPAN AS A BELLIGERENT AS REQUIRED BY ARTICLE 60 OF THE GENEVA
CONVENTION, 47 STAT. 2021, 2051. 

ON THE SAME GROUNDS THE PETITIONS FOR WRITS OF PROHIBITION SET UP
THAT THE COMMISSION IS WITHOUT AUTHORITY TO PROCEED WITH THE TRIAL. 

THE SUPREME COURT OF THE PHILIPPINE ISLANDS, AFTER HEARING ARGUMENT,
DENIED THE PETITION FOR HABEAS CORPUS PRESENTED TO IT, ON THE GROUND,
AMONG OTHERS, THAT ITS JURISDICTION WAS LIMITED TO AN INQUIRY AS TO THE
JURISDICTION OF THE COMMISSION TO PLACE PETITIONER ON TRIAL FOR THE
OFFENSE CHARGED, AND THAT THE COMMISSION, BEING VALIDLY CONSTITUTED BY
THE ORDER OF GENERAL STYER, HAD JURISDICTION OVER THE PERSON OF
PETITIONER AND OVER THE TRIAL FOR THE OFFENSE CHARGED. 

IN EX PARTE QUIRIN, 317 U.S. 1, WE HAD OCCASION TO CONSIDER AT LENGTH
THE SOURCES AND NATURE OF THE AUTHORITY TO CREATE MILITARY COMMISSIONS
FOR THE TRIAL OF ENEMY COMBATANTS FOR OFFENSES AGAINST THE LAW OF WAR. 
WE THERE POINTED OUT THAT CONGRESS, IN THE EXERCISE OF THE POWER
CONFERRED UPON IT BY ARTICLE I, SEC. 8, CL. 10 OF THE CONSTITUTION TO
"DEFINE AND PUNISH  ... OFFENCES AGAINST THE LAW OF NATIONS  ...," OF
WHICH THE LAW OF WAR IS A PART, HAD BY THE ARTICLES OF WAR (10 U.S.C.
SECS. 1471-1593) RECOGNIZED THE "MILITARY COMMISSION" APPOINTED BY
MILITARY COMMAND, AS IT HAD PREVIOUSLY EXISTED IN UNITED STATES ARMY
PRACTICE, AS AN APPROPRIATE TRIBUNAL FOR THE TRIAL AND PUNISHMENT OF
OFFENSES AGAINST THE LAW OF WAR.  ARTICLE 15 DECLARES THAT THE
"PROVISIONS OF THESE ARTICLES CONFERRING JURISDICTION UPON COURTS
MARTIAL SHALL NOT BE CONSTRUED AS DEPRIVING MILITARY COMMISSIONS  ...
OR OTHER MILITARY TRIBUNALS OF CONCURRENT JURISDICTION IN RESPECT OF
OFFENDERS OR OFFENSES THAT BY STATUTE OR BY THE LAW OF WAR MAY BE
TRIABLE BY SUCH MILITARY COMMISSIONS  ...  OR OTHER MILITARY
TRIBUNALS."  SEE A SIMILAR PROVISION OF THE ESPIONAGE ACT OF 1917, 50
U.S.C. SEC. 38.  ARTICLE 2 INCLUDES AMONG THOSE PERSONS SUBJECT TO THE
ARTICLES OF WAR THE PERSONNEL OF OUR OWN MILITARY ESTABLISHMENT.  BUT
THIS, AS ARTICLE 12 INDICATES, DOES NOT EXCLUDE FROM THE CLASS OF
PERSONS SUBJECT TO TRIAL BY MILITARY COMMISSIONS "ANY OTHER PERSON WHO
BY THE LAW OF WAR IS SUBJECT TO TRIAL BY MILITARY TRIBUNALS," AND WHO,
UNDER ARTICLE 12, MAY BE TRIED BY COURT-MARTIAL, OR UNDER ARTICLE 15 BY
MILITARY COMMISSION. 

WE FURTHER POINTED OUT THAT CONGRESS, BY SANCTIONING TRIAL OF ENEMY
COMBATANTS FOR VIOLATIONS OF THE LAW OF WAR BY MILITARY COMMISSION, HAD
NOT ATTEMPTED TO CODIFY THE LAW OF WAR OR TO MARK ITS PRECISE
BOUNDARIES.  INSTEAD, BY ARTICLE 15 IT HAD INCORPORATED, BY REFERENCE,
AS WITHIN THE PREEXISTING JURISDICTION OF MILITARY COMMISSIONS CREATED
BY APPROPRIATE MILITARY COMMAND, ALL OFFENSES WHICH ARE DEFINED AS SUCH
BY THE LAW OF WAR, AND WHICH MAY CONSTITUTIONALLY BE INCLUDED WITHIN
THAT JURISDICTION.  IT THUS ADOPTED THE SYSTEM OF MILITARY COMMON LAW
APPLIED BY MILITARY TRIBUNALS SO FAR AS IT SHOULD BE RECOGNIZED AND
DEEMED APPLICABLE BY THE COURTS, AND AS FURTHER DEFINED AND
SUPPLEMENTED BY THE HAGUE CONVENTION, TO WHICH THE UNITED STATES AND
THE AXIS POWERS WERE PARTIES. 

WE ALSO EMPHASIZED IN EX PARTE QUIRIN, AS WE DO HERE, THAT ON
APPLICATION FOR HABEAS CORPUS WE ARE NOT CONCERNED WITH THE GUILT OR
INNOCENCE OF THE PETITIONERS.  WE CONSIDER HERE ONLY THE LAWFUL POWER
OF THE COMMISSION TO TRY THE PETITIONER FOR THE OFFENSE CHARGED.  IN
THE PRESENT CASES IT MUST BE RECOGNIZED THROUGHOUT THAT THE MILITARY
TRIBUNALS WHICH CONGRESS HAS SANCTIONED BY THE ARTICLES OF WAR ARE NOT
COURTS WHOSE RULINGS AND JUDGMENTS ARE MADE SUBJECT TO REVIEW BY THIS
COURT.  SEE EX PARTE VALLANDIGHAM, 1 WALL.  243; IN RE VIDAL, 179 U.S.
126; CF. EX PARTE QUIRIN, SUPRA, 39.  THEY ARE TRIBUNALS WHOSE
DETERMINATIONS ARE REVIEWABLE BY THE MILITARY AUTHORITIES EITHER AS
PROVIDED IN THE MILITARY ORDERS CONSTITUTING SUCH TRIBUNALS OR AS
PROVIDED BY THE ARTICLES OF WAR.  CONGRESS CONFERRED ON THE COURTS NO
POWER TO REVIEW THEIR DETERMINATIONS SAVE ONLY AS IT HAS GRANTED
JUDICIAL POWER "TO GRANT WRITS OF HABEAS CORPUS FOR THE PURPOSE OF AN
INQUIRY INTO THE CAUSE OF RESTRAINT OF LIBERTY."  28 U.S.C. SECS. 451,
452.  THE COURTS MAY INQUIRE WHETHER THE DETENTION COMPLAINED OF IS
WITHIN THE AUTHORITY OF THOSE DETAINING THE PETITIONER.  IF THE
MILITARY TRIBUNALS HAVE LAWFUL AUTHORITY TO HEAR, DECIDE AND CONDEMN,
THEIR ACTION IS NOT SUBJECT TO JUDICIAL REVIEW MERELY BECAUSE THEY HAVE
MADE A WRONG DECISION ON DISPUTED FACTS.  CORRECTION OF THEIR ERRORS OF
DECISION IS NOT FOR THE COURTS BUT FOR THE MILITARY AUTHORITIES WHICH
ARE ALONE AUTHORIZED TO REVIEW THEIR DECISIONS.  SEE DYNES V. HOOVER,
20 HOW.  65, 81; RUNKLE V. UNITED STATES, 122 U.S. 543, 555-556; CARTER
V. MCCLAUGHRY, 183 U.S. 365; COLLINS V. MCDONALD, 258 U.S. 416.  CF.
MATTER OF MORAN, 203 U.S. 96, 105. 

FINALLY, WE HELD IN EX PARTE QUIRIN, SUPRA, 24, 25, AS WE HOLD NOW,
THAT CONGRESS BY SANCTIONING TRIALS OF ENEMY ALIENS BY MILITARY
COMMISSION FOR OFFENSES AGAINST THE LAW OF WAR HAD RECOGNIZED THE RIGHT
OF THE ACCUSED TO MAKE A DEFENSE.  CF. EX PARTE KAWATO, 317 U.S. 69. 
IT HAS NOT FORECLOSED THEIR RIGHT TO CONTEND THAT THE CONSTITUTION OR
LAWS OF THE UNITED STATES WITHHOLD AUTHORITY TO PROCEED WITH THE
TRIAL.  IT HAS NOT WITHDRAWN, AND THE EXECUTIVE BRANCH OF THE
GOVERNMENT COULD NOT, UNLESS THERE WAS SUSPENSION OF THE WRIT, WITHDRAW
FROM THE COURTS THE DUTY AND POWER TO MAKE SUCH INQUIRY INTO THE
AUTHORITY OF THE COMMISSION AS MAY BE MADE BY HABEAS CORPUS. 

WITH THESE GOVERNING PRINCIPLES IN MIND WE TURN TO THE CONSIDERATION
OF THE SEVERAL CONTENTIONS URGED TO ESTABLISH WANT OF AUTHORITY IN THE
COMMISSION.  WE ARE NOT HERE CONCERNED WITH THE POWER OF MILITARY
COMMISSIONS TO TRY CIVILIANS.  SEE EX PARTE MILLIGAN, 4 WALL.  2, 132;
STERLING V. CONSTANTIN, 287 U.S. 378; EX PARTE QUIRIN, SUPRA, 45.  THE
GOVERNMENT'S CONTENTION IS THAT GENERAL STYER'S ORDER CREATING THE
COMMISSION CONFERRED AUTHORITY ON IT ONLY TO TRY THE PURPORTED CHARGE
OF VIOLATION OF THE LAW OF WAR COMMITTED BY PETITIONER, AN ENEMY
BELLIGERENT, WHILE IN COMMAND OF A HOSTILE ARMY OCCUPYING UNITED STATES
TERRITORY DURING TIME OF WAR.  OUR FIRST INQUIRY MUST THEREFORE BE
WHETHER THE PRESENT COMMISSION WAS CREATED BY LAWFUL MILITARY COMMAND
AND, IF SO, WHETHER AUTHORITY COULD THUS BE CONFERRED ON THE COMMISSION
TO PLACE PETITIONER ON TRIAL AFTER THE CESSATION OF HOSTILITIES BETWEEN
THE ARMED FORCES OF THE UNITED STATES AND JAPAN. 

THE AUTHORITY TO CREATE THE COMMISSION.  GENERAL STYER'S ORDER FOR
THE APPOINTMENT OF THE COMMISSION WAS MADE BY HIM AS COMMANDER OF THE
UNITED STATES ARMY FORCES, WESTERN PACIFIC.  HIS COMMAND INCLUDES, AS
PART OF A VASTLY GREATER AREA, THE PHILIPPINE ISLANDS, WHERE THE
ALLEGED OFFENSES WERE COMMITTED, WHERE PETITIONER SURRENDERED AS A
PRISONER OF WAR, AND WHERE, AT THE TIME OF THE ORDER CONVENING THE
COMMISSION, HE WAS DETAINED AS A PRISONER IN CUSTODY OF THE UNITED
STATES ARMY.  THE CONGRESSIONAL RECOGNITION OF MILITARY COMMISSIONS AND
ITS SANCTION OF THEIR USE IN TRYING OFFENSES AGAINST THE LAW OF WAR TO
WHICH WE HAVE REFERRED, SANCTIONED THEIR CREATION BY MILITARY COMMAND
IN CONFORMITY TO LONG-ESTABLISHED AMERICAN PRECEDENTS.  SUCH A
COMMISSION MAY BE APPOINTED BY ANY FIELD COMMANDER, OR BY ANY COMMANDER
COMPETENT TO APPOINT A GENERAL COURT-MARTIAL, AS WAS GENERAL STYER, WHO
HAD BEEN VESTED WITH THAT POWER BY ORDER OF THE PRESIDENT.  2 WINTHROP,
MILITARY LAW AND PRECEDENTS, 2D ED.,*  1302; CF. ARTICLE OF WAR 8. 

HERE THE COMMISSION WAS NOT ONLY CREATED BY A COMMANDER COMPETENT TO
APPOINT IT, BUT HIS ORDER CONFORMED TO THE ESTABLISHED POLICY OF THE
GOVERNMENT AND TO HIGHER MILITARY COMMANDS AUTHORIZING HIS ACTION.  IN
A PROCLAMATION OF JULY 2, 1942(56 STAT. 1964), THE PRESIDENT PROCLAIMED
THAT ENEMY BELLIGERENTS WHO, DURING TIME OF WAR, ENTER THE UNITED
STATES, OR ANY TERRITORY OR POSSESSION THEREOF, AND WHO VIOLATE THE LAW
OF WAR, SHOULD BE SUBJECT TO THE LAW OF WAR AND TO THE JURISDICTION OF
MILITARY TRIBUNALS.  PARAGRAPH 10 OF THE DECLARATION OF POTSDAM OF JULY
26, 1945, DECLARED THAT "...  STERN JUSTICE SHALL BE METED OUT TO ALL
WAR CRIMINALS, INCLUDING THOSE WHO HAVE VISITED CRUELTIES UPON OUR
PRISONERS."  U.S. DEPT. OF STATE BULL., VOL. XIII, NO. 318, PP. 137
138.  THIS DECLARATION WAS ACCEPTED BY THE JAPANESE GOVERNMENT BY ITS
NOTE OF AUGUST 10, 1945.  U.S. DEPT. OF STATE BULL., VOL. XIII, NO.
320, P. 205.    BY DIRECTION OF THE PRESIDENT, THE JOINT CHIEFS OF
STAFF OF THE AMERICAN MILITARY FORCES, ON SEPTEMBER 12, 1945,
INSTRUCTED GENERAL MACARTHUR, COMMANDER IN CHIEF, UNITED STATES ARMY
FORCES, PACIFIC, TO PROCEED WITH THE TRIAL, BEFORE APPROPRIATE MILITARY
TRIBUNALS, OF SUCH JAPANESE WAR CRIMINALS "AS HAVE BEEN OR MAY BE
APPREHENDED."  BY ORDER OF GENERAL MACARTHUR OF SEPTEMBER 24, 1945,
GENERAL STYER WAS SPECIFICALLY DIRECTED TO PROCEED WITH THE TRIAL OF
PETITIONER UPON THE CHARGE HERE INVOLVED.  THIS ORDER WAS ACCOMPANIED
BY DETAILED RULES AND REGULATIONS WHICH GENERAL MACARTHUR PRESCRIBED
FOR THE TRIAL OF WAR CRIMINALS.  THESE REGULATIONS DIRECTED, AMONG
OTHER THINGS, THAT REVIEW OF THE SENTENCE IMPOSED BY THE COMMISSION
SHOULD BE BY THE OFFICER CONVENING IT, WITH "AUTHORITY TO APPROVE,
MITIGATE, REMIT, COMMUTE, SUSPEND, REDUCE OR OTHERWISE ALTER THE
SENTENCE IMPOSED," AND DIRECTED THAT NO SENTENCE OF DEATH SHOULD BE
CARRIED INTO EFFECT UNTIL CONFIRMED BY THE COMMANDER IN CHIEF, UNITED
STATES ARMY FORCES, PACIFIC. 

IT THUS APPEARS THAT THE ORDER CREATING THE COMMISSION FOR THE TRIAL
OF PETITIONER WAS AUTHORIZED BY MILITARY COMMAND, AND WAS IN COMPLETE
CONFORMITY TO THE ACT OF CONGRESS SANCTIONING THE CREATION OF SUCH
TRIBUNALS FOR THE TRIAL OF OFFENSES AGAINST THE LAW OF WAR COMMITTED BY
ENEMY COMBATANTS.  AND WE TURN TO THE QUESTION WHETHER THE AUTHORITY TO
CREATE THE COMMISSION AND DIRECT THE TRIAL BY MILITARY ORDER CONTINUED
AFTER THE CESSATION OF HOSTILITIES. 

AN IMPORTANT INCIDENT TO THE CONDUCT OF WAR IS THE ADOPTION OF
MEASURES BY THE MILITARY COMMANDER, NOT ONLY TO REPEL AND DEFEAT THE
ENEMY, BUT TO SEIZE AND SUBJECT TO DISCIPLINARY MEASURES THOSE ENEMIES
WHO, IN THEIR ATTEMPT TO THWART OR IMPEDE OUR MILITARY EFFORT, HAVE
VIOLATED THE LAW OF WAR.  EX PARTE QUIRIN, SUPRA, 28.  THE TRIAL AND
PUNISHMENT OF ENEMY COMBATANTS WHO HAVE COMMITTED VIOLATIONS OF THE LAW
OF WAR IS THUS NOT ONLY A PART OF THE CONDUCT OF WAR OPERATING AS A
PREVENTIVE MEASURE AGAINST SUCH VIOLATIONS, BUT IS AN EXERCISE OF THE
AUTHORITY SANCTIONED BY CONGRESS TO ADMINISTER THE SYSTEM OF MILITARY
JUSTICE RECOGNIZED BY THE LAW OF WAR.  THAT SANCTION IS WITHOUT
QUALIFICATION AS TO THE EXERCISE OF THIS AUTHORITY SO LONG AS A STATE
OF WAR EXISTS - FROM ITS DECLARATION UNTIL PEACE IS PROCLAIMED.  SEE
UNITED STATES V. ANDERSON, 9 WALL.  56, 70; THE PROTECTOR, 12 WALL. 
700, 702; MCELRATH V. UNITED STATES, 102 U.S. 426, 438; KAHN V.
ANDERSON, 255 U.S. 1, 9-10.  THE WAR POWER, FROM WHICH THE COMMISSION
DERIVES ITS EXISTENCE, IS NOT LIMITED TO VICTORIES IN THE FIELD, BUT
CARRIES WITH IT THE INHERENT POWER TO GUARD AGAINST THE IMMEDIATE
RENEWAL OF THE CONFLICT, AND TO REMEDY, AT LEAST IN WAYS CONGRESS HAS
RECOGNIZED, THE EVILS WHICH THE MILITARY OPERATIONS HAVE PRODUCED.  SEE
STEWART V. KAHN, 11 WALL.  493, 507. 

WE CANNOT SAY THAT THERE IS NO AUTHORITY TO CONVENE A COMMISSION
AFTER HOSTILITIES HAVE ENDED TO TRY VIOLATIONS OF THE LAW OF WAR
COMMITTED BEFORE THEIR CESSATION, AT LEAST UNTIL PEACE HAS BEEN
OFFICIALLY RECOGNIZED BY TREATY OR PROCLAMATION OF THE POLITICAL BRANCH
OF THE GOVERNMENT.  IN FACT, IN MOST INSTANCES THE PRACTICAL
ADMINISTRATION OF THE SYSTEM OF MILITARY JUSTICE UNDER THE LAW OF WAR
WOULD FAIL IF SUCH AUTHORITY WERE THOUGHT TO END WITH THE CESSATION OF
HOSTILITIES.  FOR ONLY AFTER THEIR CESSATION COULD THE GREATER NUMBER
OF OFFENDERS AND THE PRINCIPAL ONES BE APPREHENDED AND SUBJECTED TO
TRIAL. 

NO WRITER ON INTERNATIONAL LAW APPEARS TO HAVE REGARDED THE POWER OF
MILITARY TRIBUNALS, OTHERWISE COMPETENT TO TRY VIOLATIONS OF THE LAW OF
WAR, AS TERMINATING BEFORE THE FORMAL STATE OF WAR HAS ENDED.  FN1  IN
OUR OWN MILITARY HISTORY THERE HAVE BEEN NUMEROUS INSTANCES IN WHICH
OFFENDERS WERE TRIED BY MILITARY COMMISSION AFTER THE CESSATION OF
HOSTILITIES AND BEFORE THE PROCLAMATION OF PEACE, FOR OFFENSES AGAINST
THE LAW OF WAR COMMITTED BEFORE THE CESSATION OF HOSTILITIES.  FN2 

THE EXTENT TO WHICH THE POWER TO PROSECUTE VIOLATIONS OF THE LAW OF
WAR SHALL BE EXERCISED BEFORE PEACE IS DECLARED RESTS, NOT WITH THE
COURTS, BUT WITH THE POLITICAL BRANCH OF THE GOVERNMENT, AND MAY ITSELF
BE GOVERNED BY THE TERMS OF AN ARMISTICE OR THE TREATY OF PEACE.  HERE,
PEACE HAS NOT BEEN AGREED UPON OR PROCLAIMED.  JAPAN, BY HER ACCEPTANCE
OF THE POTSDAM DECLARATION AND HER SURRENDER, HAS ACQUIESCED IN THE
TRIALS OF THOSE GUILTY OF VIOLATIONS OF THE LAW OF WAR.  THE CONDUCT OF
THE TRIAL BY THE MILITARY COMMISSION HAS BEEN AUTHORIZED BY THE
POLITICAL BRANCH OF THE GOVERNMENT, BY MILITARY COMMAND, BY
INTERNATIONAL LAW AND USAGE, AND BY THE TERMS OF THE SURRENDER OF THE
JAPANESE GOVERNMENT. 

THE CHARGE.  NEITHER CONGRESSIONAL ACTION NOR THE MILITARY ORDERS
CONSTITUTING THE COMMISSION AUTHORIZED IT TO PLACE PETITIONER ON TRIAL
UNLESS THE CHARGE PREFERRED AGAINST HIM IS OF A VIOLATION OF THE LAW OF
WAR.  THE CHARGE, SO FAR AS NOW RELEVANT, IS THAT PETITIONER, BETWEEN
OCTOBER 9, 1944 AND SEPTEMBER 2, 1945, IN THE PHILIPPINE ISLANDS,
"WHILE COMMANDER OF ARMED FORCES OF JAPAN AT WAR WITH THE UNITED STATES
OF AMERICA AND ITS ALLIES, UNLAWFULLY DISREGARDED AND FAILED TO
DISCHARGE HIS DUTY AS COMMANDER TO CONTROL THE OPERATIONS OF THE
MEMBERS OF HIS COMMAND, PERMITTING THEM TO COMMIT BRUTAL ATROCITIES AND
OTHER HIGH CRIMES AGAINST PEOPLE OF THE UNITED STATES AND OF ITS ALLIES
AND DEPENDENCIES, PARTICULARLY THE PHILIPPINES; AND HE  ...  THEREBY
VIOLATED THE LAWS OF WAR." 

BILLS OF PARTICULARS, FILED BY THE PROSECUTION BY ORDER OF THE
COMMISSION, ALLEGE A SERIES OF ACTS, ONE HUNDRED AND TWENTY-THREE IN
NUMBER, COMMITTED BY MEMBERS OF THE FORCES UNDER PETITIONER'S COMMAND
DURING THE PERIOD MENTIONED.  THE FIRST ITEM SPECIFIES THE EXECUTION OF
"A DELIBERATE PLAN AND PURPOSE TO MASSACRE AND EXTERMINATE A LARGE PART
OF THE CIVILIAN POPULATION OF BATANGAS PROVINCE, AND TO DEVASTATE AND
DESTROY PUBLIC, PRIVATE AND RELIGIOUS PROPERTY THEREIN, AS A RESULT OF
WHICH MORE THAN 25,000 MEN, WOMEN AND CHILDREN, ALL UNARMED
NONCOMBATANT CIVILIANS, WERE BRUTALLY MISTREATED AND KILLED, WITHOUT
CAUSE OR TRIAL, AND ENTIRE SETTLEMENTS WERE DEVASTATED AND DESTROYED
WANTONLY AND WITHOUT MILITARY NECESSITY."  OTHER ITEMS SPECIFY ACTS OF
VIOLENCE, CRUELTY AND HOMICIDE INFLICTED UPON THE CIVILIAN POPULATION
AND PRISONERS OF WAR, ACTS OF WHOLESALE PILLAGE AND THE WANTON
DESTRUCTION OF RELIGIOUS MONUMENTS. 

IT IS NOT DENIED THAT SUCH ACTS DIRECTED AGAINST THE CIVILIAN
POPULATION OF AN OCCUPIED COUNTRY AND AGAINST PRISONERS OF WAR ARE
RECOGNIZED IN INTERNATIONAL LAW AS VIOLATIONS OF THE LAW OF WAR. 
ARTICLES 4, 28, 46, AND 47, ANNEX TO THE FOURTH HAGUE CONVENTION, 1907,
36 STAT. 2277, 2296, 2303, 2306-7.  BUT IT IS URGED THAT THE CHARGE
DOES NOT ALLEGE THAT PETITIONER HAS EITHER COMMITTED OR DIRECTED THE
COMMISSION OF SUCH ACTS, AND CONSEQUENTLY THAT NO VIOLATION IS CHARGED
AS AGAINST HIM.  BUT THIS OVERLOOKS THE FACT THAT THE GIST OF THE
CHARGE IS AN UNLAWFUL BREACH OF DUTY BY PETITIONER AS AN ARMY COMMANDER
TO CONTROL THE OPERATIONS OF THE MEMBERS OF HIS COMMAND BY "PERMITTING
THEM TO COMMIT" THE EXTENSIVE AND WIDESPREAD ATROCITIES SPECIFIED.  THE
QUESTION THEN IS WHETHER THE LAW OF WAR IMPOSES ON AN ARMY COMMANDER A
DUTY TO TAKE SUCH APPROPRIATE MEASURES AS ARE WITHIN HIS POWER TO
CONTROL THE TROOPS UNDER HIS COMMAND FOR THE PREVENTION OF THE
SPECIFIED ACTS WHICH ARE VIOLATIONS OF THE LAW OF WAR AND WHICH ARE
LIKELY TO ATTEND THE OCCUPATION OF HOSTILE TERRITORY BY AN UNCONTROLLED
SOLDIERY, AND WHETHER HE MAY BE CHARGED WITH PERSONAL RESPONSIBILITY
FOR HIS FAILURE TO TAKE SUCH MEASURES WHEN VIOLATIONS RESULT.  THAT
THIS WAS THE PRECISE ISSUE TO BE TRIED WAS MADE CLEAR BY THE STATEMENT
OF THE PROSECUTION AT THE OPENING OF THE TRIAL. 

IT IS EVIDENT THAT THE CONDUCT OF MILITARY OPERATIONS BY TROOPS WHOSE
EXCESSES ARE UNRESTRAINED BY THE ORDERS OR EFFORTS OF THEIR COMMANDER
WOULD ALMOST CERTAINLY RESULT IN VIOLATIONS WHICH IT IS THE PURPOSE OF
THE LAW OF WAR TO PREVENT.  ITS PURPOSE TO PROTECT CIVILIAN POPULATIONS
AND PRISONERS OF WAR FROM BRUTALITY WOULD LARGELY BE DEFEATED IF THE
COMMANDER OF AN INVADING ARMY COULD WITH IMPUNITY NEGLECT TO TAKE
REASONABLE MEASURES FOR THEIR PROTECTION.  HENCE THE LAW OF WAR
PRESUPPOSES THAT ITS VIOLATION IS TO BE AVOIDED THROUGH THE CONTROL OF
THE OPERATIONS OF WAR BY COMMANDERS WHO ARE TO SOME EXTENT RESPONSIBLE
FOR THEIR SUBORDINATES. 

THIS IS RECOGNIZED BY THE ANNEX TO THE FOURTH HAGUE CONVENTION OF
1907, RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND.  ARTICLE 1 LAYS
DOWN AS A CONDITION WHICH AN ARMED FORCE MUST FULFILL IN ORDER TO BE
ACCORDED THE RIGHTS OF LAWFUL BELLIGERENTS, THAT IT MUST BE "COMMANDED
BY A PERSON RESPONSIBLE FOR HIS SUBORDINATES."  36 STAT. 2295. 
SIMILARLY ARTICLE 19 OF THE TENTH HAGUE CONVENTION, RELATING TO
BOMBARDMENT BY NAVAL VESSELS, PROVIDES THAT COMMANDERS IN CHIEF OF THE
BELLIGERENT VESSELS "MUST SEE THAT THE ABOVE ARTICLES ARE PROPERLY
CARRIED OUT."  36 STAT. 2389.  AND ARTICLE 26 OF THE GENEVA RED CROSS
CONVENTION OF 1929, 47 STAT. 2074, 2092, FOR THE AMELIORATION OF THE
CONDITION OF THE WOUNDED AND SICK IN ARMIES IN THE FIELD, MAKES IT "THE
DUTY OF THE COMMANDERS-IN-CHIEF OF THE BELLIGERENT ARMIES TO PROVIDE
FOR THE DETAILS OF EXECUTION OF THE FOREGOING ARTICLES, (OF THE
CONVENTION) AS WELL AS FOR UNFORESEEN CASES  ..."  AND, FINALLY,
ARTICLE 43 OF THE ANNEX OF THE FOURTH HAGUE CONVENTION, 36 STAT. 2306,
REQUIRES THAT THE COMMANDER OF A FORCE OCCUPYING ENEMY TERRITORY, AS
WAS PETITIONER, "SHALL TAKE ALL THE MEASURES IN HIS POWER TO RESTORE,
AND ENSURE, AS FAR AS POSSIBLE, PUBLIC ORDER AND SAFETY, WHILE
RESPECTING, UNLESS ABSOLUTELY PREVENTED, THE LAWS IN FORCE IN THE
COUNTRY." 

THESE PROVISIONS PLAINLY IMPOSED ON PETITIONER, WHO AT THE TIME
SPECIFIED WAS MILITARY GOVERNOR OF THE PHILIPPINES, AS WELL AS
COMMANDER OF THE JAPANESE FORCES, AN AFFIRMATIVE DUTY TO TAKE SUCH
MEASURES AS WERE WITHIN HIS POWER AND APPROPRIATE IN THE CIRCUMSTANCES
TO PROTECT PRISONERS OF WAR AND THE CIVILIAN POPULATION.  THIS DUTY OF
A COMMANDING OFFICER HAS HERETOFORE BEEN RECOGNIZED, AND ITS BREACH
PENALIZED BY OUR OWN MILITARY TRIBUNALS.  FN3  A LIKE PRINCIPLE HAS
BEEN APPLIED SO AS TO IMPOSE LIABILITY ON THE UNITED STATES IN
INTERNATIONAL ARBITRATIONS.  CASE OF JEANNAUD, 3 MOORE, INTERNATIONAL
ARBITRATIONS, 3000; CASE OF THE ZAFIRO, 5 HACKWORTH, DIGEST OF
INTERNATIONAL LAW, 707. 

WE DO NOT MAKE THE LAWS OF WAR BUT WE RESPECT THEM SO FAR AS THEY DO
NOT CONFLICT WITH THE COMMANDS OF CONGRESS OR THE CONSTITUTION.  THERE
IS NO CONTENTION THAT THE PRESENT CHARGE, THUS READ, IS WITHOUT THE
SUPPORT OF EVIDENCE, OR THAT THE COMMISSION HELD PETITIONER RESPONSIBLE
FOR FAILING TO TAKE MEASURES WHICH WERE BEYOND HIS CONTROL OR
INAPPROPRIATE FOR A COMMANDING OFFICER TO TAKE IN THE CIRCUMSTANCES
N4.  WE DO NOT HERE APPRAISE THE EVIDENCE ON WHICH PETITIONER WAS
CONVICTED.  WE DO NOT CONSIDER WHAT MEASURES, IF ANY, PETITIONER TOOK
TO PREVENT THE COMMISSION, BY THE TROOPS UNDER HIS COMMAND, OF THE
PLAIN VIOLATIONS OF THE LAW OF WAR DETAILED IN THE BILL OF PARTICULARS,
OR WHETHER SUCH MEASURES AS HE MAY HAVE TAKEN WERE APPROPRIATE AND
SUFFICIENT TO DISCHARGE THE DUTY IMPOSED UPON HIM.  THESE ARE QUESTIONS
WITHIN THE PECULIAR COMPETENCE OF THE MILITARY OFFICERS COMPOSING THE
COMMISSION AND WERE FOR IT TO DECIDE.  SEE SMITH V. WHITNEY, 116 U.S.
167, 178.  IT IS PLAIN THAT THE CHARGE ON WHICH PETITIONER WAS TRIED
CHARGED HIM WITH A BREACH OF HIS DUTY TO CONTROL THE OPERATIONS OF THE
MEMBERS OF HIS COMMAND, BY PERMITTING THEM TO COMMIT THE SPECIFIED
ATROCITIES.  THIS WAS ENOUGH TO REQUIRE THE COMMISSION TO HEAR EVIDENCE
TENDING TO ESTABLISH THE CULPABLE FAILURE OF PETITIONER TO PERFORM THE
DUTY IMPOSED ON HIM BY THE LAW OF WAR AND TO PASS UPON ITS SUFFICIENCY
TO ESTABLISH GUILT. 

OBVIOUSLY CHARGES OF VIOLATIONS OF THE LAW OF WAR TRIABLE BEFORE A
MILITARY TRIBUNAL NEED NOT BE STATED WITH THE PRECISION OF A COMMON LAW
INDICTMENT.  CF. COLLINS V. MCDONALD, SUPRA, 420.  BUT WE CONCLUDE THAT
THE ALLEGATIONS OF THE CHARGE, TESTED BY ANY REASONABLE STANDARD,
ADEQUATELY ALLEGE A VIOLATION OF THE LAW OF WAR AND THAT THE COMMISSION
HAD AUTHORITY TO TRY AND DECIDE THE ISSUE WHICH IT RAISED.  CF. DEALY
V. UNITED STATES, 152 U.S. 539; WILLIAMSON V. UNITED STATES, 207 U.S.
425, 447; GLASSER V. UNITED STATES, 315 U.S. 60, 66, AND CASES CITED. 

THE PROCEEDINGS BEFORE THE COMMISSION.  THE REGULATIONS PRESCRIBED BY
GENERAL MACARTHUR GOVERNING THE PROCEDURE FOR THE TRIAL OF PETITIONER
BY THE COMMISSION DIRECTED THAT THE COMMISSION SHOULD ADMIT SUCH
EVIDENCE "AS IN ITS OPINION WOULD BE OF ASSISTANCE IN PROVING OR
DISPROVING THE CHARGE, OR SUCH AS IN THE COMMISSION'S OPINION WOULD
HAVE PROBATIVE VALUE IN THE MIND OF A REASONABLE MAN," AND THAT IN
PARTICULAR IT MIGHT ADMIT AFFIDAVITS, DEPOSITIONS OR OTHER STATEMENTS
TAKEN BY OFFICERS DETAILED FOR THAT PURPOSE BY MILITARY AUTHORITY.  THE
PETITIONS IN THIS CASE CHARGED THAT IN THE COURSE OF THE TRIAL THE
COMMISSION RECEIVED, OVER OBJECTION BY PETITIONER'S COUNSEL, THE
DEPOSITION OF A WITNESS TAKEN PURSUANT TO MILITARY AUTHORITY BY A
UNITED STATES ARMY CAPTAIN.  IT ALSO, OVER LIKE OBJECTION, ADMITTED
HEARSAY AND OPINION EVIDENCE TENDERED BY THE PROSECUTION.  PETITIONER
ARGUES, AS GROUND FOR THE WRIT OF HABEAS CORPUS, THAT ARTICLE 25  FN5
OF THE ARTICLES OF WAR PROHIBITED THE RECEPTION IN EVIDENCE BY THE
COMMISSION OF DEPOSITIONS ON BEHALF OF THE PROSECUTION IN A CAPITAL
CASE, AND THAT ARTICLE 38  FN6  PROHIBITED THE RECEPTION OF HEARSAY AND
OF OPINION EVIDENCE.    WE THINK THAT NEITHER ARTICLE 25 NOR ARTICLE 38
IS APPLICABLE TO THE TRIAL OF AN ENEMY COMBATANT BY A MILITARY
COMMISSION FOR VIOLATIONS OF THE LAW OF WAR.  ARTICLE 2 OF THE ARTICLES
OF WAR ENUMERATES "THE PERSONS  ...  SUBJECT TO THESE ARTICLES," WHO
ARE DENOMINATED, FOR PURPOSES OF THE ARTICLES, AS "PERSONS SUBJECT TO
MILITARY LAW."  IN GENERAL, THE PERSONS SO ENUMERATED ARE MEMBERS OF
OUR OWN ARMY AND OF THE PERSONNEL ACCOMPANYING THE ARMY.  ENEMY
COMBATANTS ARE NOT INCLUDED AMONG THEM.  ARTICLES 12, 13 AND 14, BEFORE
THE ADOPTION OF ARTICLE 15 IN 1916, MADE ALL "PERSONS SUBJECT TO
MILITARY LAW" AMENABLE TO TRIAL BY COURTS-MARTIAL FOR ANY OFFENSE MADE
PUNISHABLE BY THE ARTICLES OF WAR.  ARTICLE 12 MAKES TRIABLE BY GENERAL
COURT-MARTIAL "ANY OTHER PERSON WHO BY THE LAW OF WAR IS SUBJECT TO
TRIAL BY MILITARY TRIBUNALS."  SINCE ARTICLE 2, IN ITS 1916 FORM,
INCLUDES SOME PERSONS WHO, BY THE LAW OF WAR, WERE, PRIOR TO 1916,
TRIABLE BY MILITARY COMMISSION, IT WAS FEARED BY THE PROPONENTS OF THE
1916 LEGISLATION THAT IN THE ABSENCE OF A SAVING PROVISION, THE
AUTHORITY GIVEN BY ARTICLES 12, 13 AND 14 TO TRY SUCH PERSONS BEFORE
COURTS-MARTIAL MIGHT BE CONSTRUED TO DEPRIVE THE NON-STATUTORY MILITARY
COMMISSION OF A PORTION OF WHAT WAS CONSIDERED TO BE ITS TRADITIONAL
JURISDICTION.  TO AVOID THIS, AND TO PRESERVE THAT JURISDICTION INTACT,
ARTICLE 15 WAS ADDED TO THE ARTICLES N7.  IT DECLARED THAT "THE
PROVISIONS OF THESE ARTICLES CONFERRING JURISDICTION UPON COURTS
MARTIAL SHALL NOT BE CONSTRUED AS DEPRIVING MILITARY COMMISSIONS  ...
OF CONCURRENT JURISDICTION IN RESPECT OF OFFENDERS OR OFFENSES THAT
...  BY THE LAW OF WAR MAY BE TRIABLE BY SUCH MILITARY COMMISSIONS." 

BY THUS RECOGNIZING MILITARY COMMISSIONS IN ORDER TO PRESERVE THEIR
TRADITIONAL JURISDICTION OVER ENEMY COMBATANTS UNIMPAIRED BY THE
ARTICLES, CONGRESS GAVE SANCTION, AS WE HELD IN EX PARTE QUIRIN, TO ANY
USE OF THE MILITARY COMMISSION CONTEMPLATED BY THE COMMON LAW OF WAR. 
BUT IT DID NOT THEREBY MAKE SUBJECT TO THE ARTICLES OF WAR PERSONS
OTHER THAN THOSE DEFINED BY ARTICLE 2 AS BEING SUBJECT TO THE ARTICLES,
NOR DID IT CONFER THE BENEFITS OF THE ARTICLES UPON SUCH PERSONS.  THE
ARTICLES RECOGNIZED BUT ONE KIND OF MILITARY COMMISSION, NOT TWO.  BUT
THEY SANCTIONED THE USE OF THAT ONE FOR THE TRIAL OF TWO CLASSES OF
PERSONS, TO ONE OF WHICH THE ARTICLES DO, AND TO THE OTHER OF WHICH
THEY DO NOT, APPLY IN SUCH TRIALS.  BEING OF THIS LATTER CLASS,
PETITIONER CANNOT CLAIM THE BENEFITS OF THE ARTICLES, WHICH ARE
APPLICABLE ONLY TO THE MEMBERS OF THE OTHER CLASS.  PETITIONER, AN
ENEMY COMBATANT, IS THEREFORE NOT A PERSON MADE SUBJECT TO THE ARTICLES
OF WAR BY ARTICLE 2, AND THE MILITARY COMMISSION BEFORE WHICH HE WAS
TRIED, THOUGH SANCTIONED, AND ITS JURISDICTION SAVED, BY ARTICLE 15,
WAS NOT CONVENED BY VIRTUE OF THE ARTICLES OF WAR, BUT PURSUANT TO THE
COMMON LAW OF WAR.  IT FOLLOWS THAT THE ARTICLES OF WAR, INCLUDING
ARTICLES 25 AND 38, WERE NOT APPLICABLE TO PETITIONER'S TRIAL AND
IMPOSED NO RESTRICTIONS UPON THE PROCEDURE TO BE FOLLOWED.  THE
ARTICLES LEFT THE CONTROL OVER THE PROCEDURE IN SUCH A CASE WHERE IT
HAD PREVIOUSLY BEEN, WITH THE MILITARY COMMAND. 

PETITIONER FURTHER URGES THAT BY VIRTUE OF ARTICLE 63 OF THE GENEVA
CONVENTION OF 1929, 47 STAT. 2052, HE IS ENTITLED TO THE BENEFITS
AFFORDED BY THE 25TH AND 38TH ARTICLES OF WAR TO MEMBERS OF OUR OWN
FORCES.  ARTICLE 63 PROVIDES:  "SENTENCE MAY BE PRONOUNCED AGAINST A
PRISONER OF WAR ONLY BY THE SAME COURTS AND ACCORDING TO THE SAME
PROCEDURE AS IN THE CASE OF PERSONS BELONGING TO THE ARMED FORCES OF
THE DETAINING POWER."  SINCE PETITIONER IS A PRISONER OF WAR, AND AS
THE 25TH AND 38TH ARTICLES OF WAR APPLY TO THE TRIAL OF ANY PERSON IN
OUR OWN ARMED FORCES, IT IS SAID THAT ARTICLE 63 REQUIRES THEM TO BE
APPLIED IN THE TRIAL OF PETITIONER.  BUT WE THINK EXAMINATION OF
ARTICLE 63 IN ITS SETTING IN THE CONVENTION PLAINLY SHOWS THAT IT
REFERS TO SENTENCE "PRONOUNCED AGAINST A PRISONER OF WAR" FOR AN
OFFENSE COMMITTED WHILE A PRISONER OF WAR, AND NOT FOR A VIOLATION OF
THE LAW OF WAR COMMITTED WHILE A COMBATANT. 

ARTICLE 63 OF THE CONVENTION APPEARS IN PART 3, ENTITLED "JUDICIAL
SUITS," OF CHAPTER 3, "PENALTIES APPLICABLE TO PRISONERS OF WAR," OF
SEC. V, "PRISONERS' RELATIONS WITH THE AUTHORITIES," ONE OF THE
THE CONDUCT AND CONTROL OF PRISONERS OF WAR WHILE IN CAPTIVITY AS
SUCH.  CHAPTER 1 OF SEC. V, ARTICLE 42 DEALS WITH COMPLAINTS OF
PRISONERS OF WAR BECAUSE OF THE CONDITIONS OF CAPTIVITY.  CHAPTER 2,
ARTICLES 43 AND 44, RELATES TO THOSE OF THEIR NUMBER CHOSEN BY
PRISONERS OF WAR TO REPRESENT THEM. 

CHAPTER 3 OF SEC. V, ARTICLES 45 THROUGH 67, IS ENTITLED "PENALTIES
APPLICABLE TO PRISONERS OF WAR."  PART 1 OF THAT CHAPTER, ARTICLES 45
THROUGH 53, INDICATE WHAT ACTS OF PRISONERS OF WAR, COMMITTED WHILE
PRISONERS, SHALL BE CONSIDERED OFFENSES, AND DEFINES TO SOME EXTENT THE
PUNISHMENT WHICH THE DETAINING POWER MAY IMPOSE ON ACCOUNT OF SUCH
OFFENSES.  FN8  PUNISHMENT IS OF TWO KINDS - "DISCIPLINARY" AND
"JUDICIAL," THE LATTER BEING THE MORE SEVERE.  ARTICLE 52 REQUIRES THAT
LENIENCY BE EXERCISED IN DECIDING WHETHER AN OFFENSE REQUIRES
DISCIPLINARY OR JUDICIAL PUNISHMENT.  PART 2 OF CHAPTER 3 IS ENTITLED
"DISCIPLINARY PUNISHMENTS," AND FURTHER DEFINES THE EXTENT OF SUCH
PUNISHMENT, AND THE MODE IN WHICH IT MAY BE IMPOSED.  PART 3, ENTITLED
"JUDICIAL SUITS," IN WHICH ARTICLE 63 IS FOUND, DESCRIBES THE PROCEDURE
BY WHICH "JUDICIAL" PUNISHMENT MAY BE IMPOSED.  THE THREE PARTS OF
CHAPTER 3, TAKEN TOGETHER, ARE THUS A COMPREHENSIVE DESCRIPTION OF THE
SUBSTANTIVE OFFENSES WHICH PRISONERS OF WAR MAY COMMIT DURING THEIR
IMPRISONMENT, OF THE PENALTIES WHICH MAY BE IMPOSED ON ACCOUNT OF SUCH
OFFENSES, AND OF THE PROCEDURE BY WHICH GUILT MAY BE ADJUDGED AND
SENTENCE PRONOUNCED. 

WE THINK IT CLEAR, FROM THE CONTEXT OF THESE RECITED PROVISIONS, THAT
PART 3, AND ARTICLE 63, WHICH IT CONTAINS, APPLY ONLY TO JUDICIAL
PROCEEDINGS DIRECTED AGAINST A PRISONER OF WAR FOR OFFENSES COMMITTED
WHILE A PRISONER OF WAR.  SECTION V GIVES NO INDICATION THAT THIS PART
WAS DESIGNED TO DEAL WITH OFFENSES OTHER THAN THOSE REFERRED TO IN
PARTS 1 AND 2 OF CHAPTER 3. 

WE CANNOT SAY THAT THE COMMISSION, IN ADMITTING EVIDENCE TO WHICH
OBJECTION IS NOW MADE, VIOLATED ANY ACT OF CONGRESS, TREATY OR MILITARY
COMMAND DEFINING THE COMMISSION'S AUTHORITY.  FOR REASONS ALREADY
STATED WE HOLD THAT THE COMMISSION'S RULINGS ON EVIDENCE AND ON THE
MODE OF CONDUCTING THESE PROCEEDINGS AGAINST PETITIONER ARE NOT
REVIEWABLE BY THE COURTS, BUT ONLY BY THE REVIEWING MILITARY
AUTHORITIES.  FROM THIS VIEWPOINT IT IS UNNECESSARY TO CONSIDER WHAT,
IN OTHER SITUATIONS, THE FIFTH AMENDMENT MIGHT REQUIRE, AND AS TO THAT
NO INTIMATION ONE WAY OR THE OTHER IS TO BE IMPLIED.  NOTHING WE HAVE
SAID IS TO BE TAKEN AS INDICATING ANY OPINION ON THE QUESTION OF THE
WISDOM OF CONSIDERING SUCH EVIDENCE, OR WHETHER THE ACTION OF A
MILITARY TRIBUNAL IN ADMITTING EVIDENCE, WHICH CONGRESS OR CONTROLLING
MILITARY COMMAND HAS DIRECTED TO BE EXCLUDED, MAY BE DRAWN IN QUESTION
BY PETITION FOR HABEAS CORPUS OR PROHIBITION. 

EFFECT OF FAILURE TO GIVE NOTICE OF THE TRIAL TO THE PROTECTING
POWER.  ARTICLE 60 OF THE GENEVA CONVENTION OF JULY 27, 1929, 47 STAT.
2051, TO WHICH THE UNITED STATES AND JAPAN WERE SIGNATORIES, PROVIDES
THAT "AT THE OPENING OF A JUDICIAL PROCEEDING DIRECTED AGAINST A
PRISONER OF WAR, THE DETAINING POWER SHALL ADVISE THE REPRESENTATIVE OF
THE PROTECTING POWER THEREOF AS SOON AS POSSIBLE, AND ALWAYS BEFORE THE
DATE SET FOR THE OPENING OF THE TRIAL."  PETITIONER RELIES ON THE
FAILURE TO GIVE THE PRESCRIBED NOTICE TO THE PROTECTING POWER  FN9  TO
ESTABLISH WANT OF AUTHORITY IN THE COMMISSION TO PROCEED WITH THE
TRIAL. 

FOR REASONS ALREADY STATED WE CONCLUDE THAT ARTICLE 60 OF THE GENEVA
CONVENTION, WHICH APPEARS IN PART 3, CHAPTER 3, SEC. V, TITLE III OF
THE GENEVA CONVENTION, APPLIES ONLY TO PERSONS WHO ARE SUBJECTED TO
JUDICIAL PROCEEDINGS FOR OFFENSES COMMITTED WHILE PRISONERS OF WAR. 
FN10 

IT THUS APPEARS THAT THE ORDER CONVENING THE COMMISSION WAS A LAWFUL
ORDER, THAT THE COMMISSION WAS LAWFULLY CONSTITUTED, THAT PETITIONER
WAS CHARGED WITH VIOLATION OF THE LAW OF WAR, AND THAT THE COMMISSION
HAD AUTHORITY TO PROCEED WITH THE TRIAL, AND IN DOING SO DID NOT
VIOLATE ANY MILITARY, STATUTORY OR CONSTITUTIONAL COMMAND.  WE HAVE
CONSIDERED, BUT FIND IT UNNECESSARY TO DISCUSS, OTHER CONTENTIONS WHICH
WE FIND TO BE WITHOUT MERIT.  WE THEREFORE CONCLUDE THAT THE DETENTION
OF PETITIONER FOR TRIAL AND HIS DETENTION UPON HIS CONVICTION, SUBJECT
TO THE PRESCRIBED REVIEW BY THE MILITARY AUTHORITIES, WERE LAWFUL, AND
THAT THE PETITION FOR CERTIORARI, AND LEAVE TO FILE IN THIS COURT
PETITIONS FOR WRITS OF HABEAS CORPUS AND PROHIBITION SHOULD BE, AND
THEY ARE DENIED. 

FN1 THE COMMISSION ON THE RESPONSIBILITY OF THE AUTHORS OF THE WAR
AND ON THE ENFORCEMENT OF PENALTIES OF THE VERSAILLES PEACE CONFERENCE,
WHICH MET AFTER CESSATION OF HOSTILITIES IN THE FIRST WORLD WAR, WERE
OF THE VIEW THAT VIOLATORS OF THE LAW OF WAR COULD BE TRIED BY MILITARY
TRIBUNALS.  SEE REPORT OF THE COMMISSION, MARCH 9, 1919, 14 AM. J. INT.
L. 95, 121.  SEE ALSO MEMORANDUM OF AMERICAN COMMISSIONERS CONCURRING
ON THIS POINT, ID., AT P. 141.  THE TREATIES OF PEACE CONCLUDED AFTER
WORLD WAR I RECOGNIZED THE RIGHT OF THE ALLIES AND OF THE UNITED STATES
TO TRY SUCH OFFENDERS BEFORE MILITARY TRIBUNALS.  SEE ART. 228 OF
TREATY OF VERSAILLES, JUNE 28, 1919; ART. 173 OF TREATY OF ST. GERMAIN,
SEPT. 10, 1919; ART. 157 OF TREATY OF TRIANON, JUNE 4, 1920. 

THE TERMS OF THE AGREEMENT WHICH ENDED HOSTILITIES IN THE BOER WAR
RESERVED THE RIGHT TO TRY, BEFORE MILITARY TRIBUNALS, ENEMY COMBATANTS
WHO HAD VIOLATED THE LAW OF WAR.  95 BRITISH AND FOREIGN STATE PAPERS
(1901-1902) 160.  SEE ALSO TRIALS CITED IN COLBY, WAR CRIMES, 23
MICHIGAN LAW REV. 482, 496-7. 

FN2  SEE CASES MENTIONED IN EX PARTE QUIRIN, SUPRA, P. 32, NOTE 10,
AND IN 2 WINTHROP, SUPRA,* 1310-1311, N. 5; 14 OP. A.G. 249(MODOC
INDIAN PRISONERS). 

FN3  FAILURE OF AN OFFICER TO TAKE MEASURES TO PREVENT MURDER OF AN
INHABITANT OF AN OCCUPIED COUNTRY COMMITTED IN HIS PRESENCE.  GEN.
ORDERS NO. 221, HQ. DIV. OF THE PHILIPPINES, AUGUST 17, 1901.  AND IN
GEN. ORDERS NO. 264, HQ. DIV. OF THE PHILIPPINES, SEPTEMBER 9, 1901, IT
WAS HELD THAT AN OFFICER COULD NOT BE FOUND GUILTY FOR FAILURE TO
PREVENT A MURDER UNLESS IT APPEARED THAT THE ACCUSED HAD "THE POWER TO
PREVENT" IT. 

FN4  IN ITS FINDINGS THE COMMISSION TOOK ACCOUNT OF THE DIFFICULTIES
"FACED BY THE ACCUSED WITH RESPECT NOT ONLY TO THE SWIFT AND
OVERPOWERING ADVANCE OF AMERICAN FORCES, BUT ALSO TO THE ERRORS OF HIS
PREDECESSORS, WEAKNESSES IN ORGANIZATION, EQUIPMENT, SUPPLY  ...,
TRAINING, COMMUNICATION, DISCIPLINE AND MORALE OF HIS TROOPS," AND THE
"TACTICAL SITUATION, THE CHARACTER, TRAINING AND CAPACITY OF STAFF
OFFICERS AND SUBORDINATE COMMANDERS AS WELL AS THE TRAITS OF CHARACTER
...  OF HIS TROOPS."  IT NONETHELESS FOUND THAT PETITIONER HAD NOT
TAKEN SUCH MEASURES TO CONTROL HIS TROOPS AS WERE "REQUIRED BY THE
CIRCUMSTANCES."  WE DO NOT WEIGH THE EVIDENCE.  WE MERELY HOLD THAT THE
CHARGE SUFFICIENTLY STATES A VIOLATION AGAINST THE LAW OF WAR, AND THAT
THE COMMISSION, UPON THE FACTS FOUND, COULD PROPERLY FIND PETITIONER
GUILTY OF SUCH A VIOLATION. 

FN5 ARTICLE 25 PROVIDES:  "A DULY AUTHENTICATED DEPOSITION TAKEN UPON
REASONABLE NOTICE TO THE OPPOSITE PARTY MAY BE READ IN EVIDENCE BEFORE
ANY MILITARY COURT OR COMMISSION IN ANY CASE NOT CAPITAL, OR IN ANY
PROCEEDING BEFORE A COURT OF INQUIRY OR A MILITARY BOARD,  ...
PROVIDED, THAT TESTIMONY BY DEPOSITION MAY BE ADDUCED FOR THE DEFENSE
IN CAPITAL CASES." 

FN6  ARTICLE 38 PROVIDES:  "THE PRESIDENT MAY, BY REGULATIONS, WHICH
HE MAY MODIFY FROM TIME TO TIME, PRESCRIBE THE PROCEDURE, INCLUDING
MODES OF PROOF, IN CASES BEFORE COURTS-MARTIAL, COURTS OF INQUIRY,
MILITARY COMMISSIONS, AND OTHER MILITARY TRIBUNALS, WHICH REGULATIONS
SHALL INSOFAR AS HE SHALL DEEM PRACTICABLE, APPLY THE RULES OF EVIDENCE
GENERALLY RECOGNIZED IN THE TRIAL OF CRIMINAL CASES IN THE DISTRICT
COURTS OF THE UNITED STATES:  PROVIDED, THAT NOTHING CONTRARY TO OR
INCONSISTENT WITH THESE ARTICLES SHALL BE SO PRESCRIBED:..." 

FN7  GENERAL CROWDER, THE JUDGE ADVOCATE GENERAL, WHO APPEARED BEFORE
CONGRESS AS SPONSOR FOR THE ADOPTION OF ARTICLE 15 AND THE ACCOMPANYING
AMENDMENT OF ARTICLE 25, IN EXPLAINING THE PURPOSE OF ARTICLE 15,
SAID: 

"ARTICLE 15 IS NEW.  WE HAVE INCLUDED IN ARTICLE 2 AS SUBJECT TO
MILITARY LAW A NUMBER OF PERSONS WHO ARE ALSO SUBJECT TO TRIAL BY
MILITARY COMMISSION.  A MILITARY COMMISSION IS OUR COMMON-LAW WAR
COURT.  IT HAS NO STATUTORY EXISTENCE, THOUGH IT IS RECOGNIZED BY
STATUTE LAW.  AS LONG AS THE ARTICLES EMBRACED THEM IN THE DESIGNATION
'PERSONS SUBJECT TO MILITARY LAW,' AND PROVIDED THAT THEY MIGHT BE
TRIED BY COURT-MARTIAL, I WAS AFRAID THAT, HAVING MADE A SPECIAL
PROVISION FOR THEIR TRIAL BY COURT-MARTIAL, (ARTS. 12, 13, AND 14) IT
MIGHT BE HELD THAT THE PROVISION OPERATED TO EXCLUDE TRIALS BY MILITARY
COMMISSION AND OTHER WAR COURTS; SO THIS NEW ARTICLE WAS
INTRODUCED:..."  (SEN. R. 130, 64TH CONG., 1ST SESS., P. 40.) 

FN8  PART 1 OF CHAPTER 3, "GENERAL PROVISIONS," PROVIDES IN ARTICLES
45 AND 46 THAT PRISONERS OF WAR ARE SUBJECT TO THE REGULATIONS IN FORCE
IN THE ARMIES OF THE DETAINING POWER, THAT PUNISHMENTS OTHER THAN THOSE
PROVIDED "FOR THE SAME ACTS FOR SOLDIERS OF THE NATIONAL ARMIES" MAY
NOT BE IMPOSED ON PRISONERS OF WAR, AND THAT "COLLECTIVE PUNISHMENT FOR
INDIVIDUAL ACTS" IS FORBIDDEN.  ARTICLE 47 PROVIDES THAT "ACTS
CONSTITUTING AN OFFENSE AGAINST DISCIPLINE, AND PARTICULARLY ATTEMPTED
ESCAPE, SHALL BE VERIFIED IMMEDIATELY; FOR ALL PRISONERS OF WAR,
COMMISSIONED OR NOT, PREVENTIVE ARREST SHALL BE REDUCED TO THE ABSOLUTE
MINIMUM.  JUDICIAL PROCEEDINGS AGAINST PRISONERS OF WAR SHALL BE
CONDUCTED AS RAPIDLY AS THE CIRCUMSTANCES PERMIT  ...  IN ALL CASES,
THE DURATION OF PREVENTIVE IMPRISONMENT SHALL BE DEDUCTED FROM THE
DISCIPLINARY OR JUDICIAL PUNISHMENT INFLICTED  ..."    ARTICLE 48
PROVIDES THAT PRISONERS OF WAR, AFTER HAVING SUFFERED "THE JUDICIAL OR
DISCIPLINARY PUNISHMENT WHICH HAS BEEN IMPOSED ON THEM," ARE NOT TO BE
TREATED DIFFERENTLY FROM OTHER PRISONERS, BUT PROVIDES THAT "PRISONERS
PUNISHED AS A RESULT OF ATTEMPTED ESCAPE MAY BE SUBJECTED TO SPECIAL
SURVEILLANCE."  ARTICLE 49 RECITES THAT PRISONERS "GIVEN DISCIPLINARY
PUNISHMENT MAY NOT BE DEPRIVED OF THE PREROGATIVES ATTACHED TO THEIR
RANK."  ARTICLES 50 AND 51 DEAL WITH ESCAPED PRISONERS WHO HAVE BEEN
RETAKEN OR PRISONERS WHO HAVE ATTEMPTED TO ESCAPE.  ARTICLE 52
PROVIDES: "BELLIGERENTS SHALL SEE THAT THE COMPETENT AUTHORITIES
EXERCISE THE GREATEST LENIENCY IN DECIDING THE QUESTION OF WHETHER AN
INFRACTION COMMITTED BY A PRISONER OF WAR SHOULD BE PUNISHED BY
DISCIPLINARY OR JUDICIAL MEASURES.  THIS SHALL BE THE CASE ESPECIALLY
WHEN IT IS A QUESTION OF DECIDING ON ACTS IN CONNECTION WITH ESCAPE OR
ATTEMPTED ESCAPE....  A PRISONER MAY NOT BE PUNISHED MORE THAN ONCE
BECAUSE OF THE SAME ACT OR THE SAME COUNT." 

FN9  SWITZERLAND, AT THE TIME OF THE TRIAL, WAS THE POWER DESIGNATED
BY JAPAN FOR THE PROTECTION OF JAPANESE PRISONERS OF WAR DETAINED BY
THE UNITED STATES, EXCEPT IN HAWAII.  U.S. DEPT. OF STATE BULL., VOL.
XIII, NO. 317, P. 125. 

FN10  ONE OF THE ITEMS OF THE BILL OF PARTICULARS, IN SUPPORT OF THE
CHARGE AGAINST PETITIONER, SPECIFIES THAT HE PERMITTED MEMBERS OF THE
ARMED FORCES UNDER HIS COMMAND TO TRY AND EXECUTE THREE NAMED AND OTHER
PRISONERS OF WAR, "SUBJECTING TO TRIAL WITHOUT PRIOR NOTICE TO A
REPRESENTATIVE OF THE PROTECTING POWER, WITHOUT OPPORTUNITY TO DEFEND,
AND WITHOUT COUNSEL; DENYING OPPORTUNITY TO APPEAL FROM THE SENTENCE
RENDERED; FAILING TO NOTIFY THE PROTECTING POWER OF THE SENTENCE
PRONOUNCED; AND EXECUTING A DEATH SENTENCE WITHOUT COMMUNICATING TO THE
REPRESENTATIVE OF THE PROTECTING POWER THE NATURE AND CIRCUMSTANCES OF
THE OFFENSE CHARGED."  IT MIGHT BE SUGGESTED THAT IF ARTICLE 60 IS
INAPPLICABLE TO PETITIONER IT IS INAPPLICABLE IN THE CASES SPECIFIED,
AND THAT HENCE HE COULD NOT BE LAWFULLY HELD OR CONVICTED ON A CHARGE
OF FAILING TO REQUIRE THE NOTICE, PROVIDED FOR IN ARTICLE 60, TO BE
GIVEN. 

AS THE GOVERNMENT INSISTS, IT DOES NOT APPEAR FROM THE CHARGE AND
SPECIFICATIONS THAT THE PRISONERS IN QUESTION WERE NOT CHARGED WITH
OFFENSES COMMITTED BY THEM AS PRISONERS RATHER THAN WITH OFFENSES
AGAINST THE LAW OF WAR COMMITTED BY THEM AS ENEMY COMBATANTS.  BUT
APART FROM THIS CONSIDERATION, INDEPENDENTLY OF THE NOTICE REQUIREMENTS
OF THE GENEVA CONVENTION, IT IS A VIOLATION OF THE LAW OF WAR, ON WHICH
THERE COULD BE A CONVICTION IF SUPPORTED BY EVIDENCE, TO INFLICT
CAPITAL PUNISHMENT ON PRISONERS OF WAR WITHOUT AFFORDING TO THEM
OPPORTUNITY TO MAKE A DEFENSE.  2 WINTHROP, SUPRA,*  434-435, 1241;
ARTICLE 84, OXFORD MANUAL, LAWS AND CUSTOMS OF WAR ON LAND; U.S. WAR
DEPT., BASIC FIELD MANUAL, RULES OF LAND WARFARE (1940) PAR. 356;
LIEBER'S CODE, G.O. NO. 100(1863) INSTRUCTIONS FOR THE GOVERNMENT OF
ARMIES OF THE UNITED STATES IN THE FIELD, PAR. 12; SPAIGHT, WAR RIGHTS
ON LAND, 462, N. 

FURTHER, THE COMMISSION, IN MAKING ITS FINDINGS, SUMMARIZED AS
FOLLOWS THE CHARGES, ON WHICH IT ACTED, IN THREE CLASSES, ANY ONE OF
WHICH, INDEPENDENTLY OF THE OTHERS IF SUPPORTED BY EVIDENCE, WOULD BE
SUFFICIENT TO SUPPORT THE CONVICTION:  (1) EXECUTION OR MASSACRE
WITHOUT TRIAL AND MALADMINISTRATION GENERALLY OF CIVILIAN INTERNEES AND
PRISONERS OF WAR; (2) BRUTALITIES COMMITTED UPON THE CIVILIAN
POPULATION, AND (3) BURNING AND DEMOLITION, WITHOUT ADEQUATE MILITARY
NECESSITY, OF A LARGE NUMBER OF HOMES, PLACES OF BUSINESS, PLACES OF
RELIGIOUS WORSHIP, HOSPITALS, PUBLIC BUILDINGS AND EDUCATIONAL
INSTITUTIONS. 

THE COMMISSION CONCLUDED:  "(1) THAT A SERIES OF ATROCITIES AND OTHER
HIGH CRIMES HAVE BEEN COMMITTED BY MEMBERS OF THE JAPANESE ARMED
FORCES" UNDER COMMAND OF PETITIONER "AGAINST PEOPLE OF THE UNITED
STATES, THEIR ALLIES AND DEPENDENCIES  ...; THAT THEY WERE NOT SPORADIC
IN NATURE BUT IN MANY CASES WERE METHODICALLY SUPERVISED BY JAPANESE
OFFICERS AND NONCOMMISSIONED OFFICERS"; (2) THAT DURING THE PERIOD IN
QUESTION PETITIONER "FAILED TO PROVIDE EFFECTIVE CONTROL OF  ...  (HIS)
TROOPS, AS WAS REQUIRED BY THE CIRCUMSTANCES."  THE COMMISSION SAID:
"...  WHERE MURDER AND RAPE AND VICIOUS, REVENGEFUL ACTIONS ARE
WIDESPREAD OFFENSES, AND THERE IS NO EFFECTIVE ATTEMPT BY A COMMANDER
TO DISCOVER AND CONTROL THE CRIMINAL ACTS, SUCH A COMMANDER MAY BE HELD
RESPONSIBLE, EVEN CRIMINALLY LIABLE, FOR THE LAWLESS ACTS OF HIS
TROOPS, DEPENDING UPON THEIR NATURE AND THE CIRCUMSTANCES SURROUNDING
THEM." 

THE COMMISSION MADE NO FINDING OF NON-COMPLIANCE WITH THE GENEVA
CONVENTION.  NOTHING HAS BEEN BROUGHT TO OUR ATTENTION FROM WHICH WE
COULD CONCLUDE THAT THE ALLEGED NON-COMPLIANCE WITH ARTICLE 60 OF THE
GENEVA CONVENTION HAD ANY RELATION TO THE COMMISSION'S FINDING OF A
SERIES OF ATROCITIES COMMITTED BY MEMBERS OF THE FORCES UNDER
PETITIONER'S COMMAND, AND THAT HE FAILED TO PROVIDE EFFECTIVE CONTROL
OF HIS TROOPS, AS WAS REQUIRED BY THE CIRCUMSTANCES; OR WHICH COULD
SUPPORT THE PETITIONS FOR HABEAS CORPUS ON THE GROUND THAT PETITIONER
HAD BEEN CHARGED WITH OR CONVICTED FOR FAILURE TO REQUIRE THE NOTICE
PRESCRIBED BY ARTICLE 60 TO BE GIVEN. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE MURPHY, DISSENTING. 

THE SIGNIFICANCE OF THE ISSUE FACING THE COURT TODAY CANNOT BE
OVEREMPHASIZED.  AN AMERICAN MILITARY COMMISSION HAS BEEN ESTABLISHED
TO TRY A FALLEN MILITARY COMMANDER OF A CONQUERED NATION FOR AN ALLEGED
WAR CRIME.  THE AUTHORITY FOR SUCH ACTION GROWS OUT OF THE EXERCISE OF
THE POWER CONFERRED UPON CONGRESS BY ARTICLE I, SEC. 8, CL. 10 OF THE
CONSTITUTION TO "DEFINE AND PUNISH ...  OFFENCES AGAINST THE LAW OF
NATIONS  ..."  THE GRAVE ISSUE RAISED BY THIS CASE IS WHETHER A
MILITARY COMMISSION SO ESTABLISHED AND SO AUTHORIZED MAY DISREGARD THE
PROCEDURAL RIGHTS OF AN ACCUSED PERSON AS GUARANTEED BY THE
CONSTITUTION, ESPECIALLY BY THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

THE ANSWER IS PLAIN.  THE FIFTH AMENDMENT GUARANTEE OF DUE PROCESS OF
LAW APPLIES TO "ANY PERSON" WHO IS ACCUSED OF A CRIME BY THE FEDERAL
GOVERNMENT OR ANY OF ITS AGENCIES.  NO EXCEPTION IS MADE AS TO THOSE
WHO ARE ACCUSED OF WAR CRIMES OR AS TO THOSE WHO POSSESS THE STATUS OF
AN ENEMY BELLIGERENT.  INDEED, SUCH AN EXCEPTION WOULD BE CONTRARY TO
THE WHOLE PHILOSOPHY OF HUMAN RIGHTS WHICH MAKES THE CONSTITUTION THE
GREAT LIVING DOCUMENT THAT IT IS.  THE IMMUTABLE RIGHTS OF THE
INDIVIDUAL, INCLUDING THOSE SECURED BY THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT, BELONG NOT ALONE TO THE MEMBERS OF THOSE NATIONS THAT
EXCEL ON THE BATTLEFIELD OR THAT SUBSCRIBE TO THE DEMOCRATIC IDEOLOGY. 
THEY BELONG TO EVERY PERSON IN THE WORLD, VICTOR OR VANQUISHED,
WHATEVER MAY BE HIS RACE, COLOR OR BELIEFS.  THEY RISE ABOVE ANY STATUS
OF BELLIGERENCY OR OUTLAWRY.  THEY SURVIVE ANY POPULAR PASSION OR
FRENZY OF THE MOMENT.  NO COURT OR LEGISLATURE OR EXECUTIVE, NOT EVEN
THE MIGHTIEST ARMY IN THE WORLD, CAN EVER DESTROY THEM.  SUCH IS THE
UNIVERSAL AND INDESTRUCTIBLE NATURE OF THE RIGHTS WHICH THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT RECOGNIZES AND PROTECTS WHEN LIFE OR
LIBERTY IS THREATENED BY VIRTUE OF THE AUTHORITY OF THE UNITED STATES. 

THE EXISTENCE OF THESE RIGHTS, UNFORTUNATELY, IS NOT ALWAYS
RESPECTED.  THEY ARE OFTEN TRAMPLED UNDER BY THOSE WHO ARE MOTIVATED BY
HATRED, AGGRESSION OR FEAR.  BUT IN THIS NATION INDIVIDUAL RIGHTS ARE
RECOGNIZED AND PROTECTED, AT LEAST IN REGARD TO GOVERNMENTAL ACTION. 
THEY CANNOT BE IGNORED BY ANY BRANCH OF THE GOVERNMENT, EVEN THE
MILITARY, EXCEPT UNDER THE MOST EXTREME AND URGENT CIRCUMSTANCES. 

THE FAILURE OF THE MILITARY COMMISSION TO OBEY THE DICTATES OF THE
DUE PROCESS REQUIREMENTS OF THE FIFTH AMENDMENT IS APPARENT IN THIS
CASE.  THE PETITIONER WAS THE COMMANDER OF AN ARMY TOTALLY DESTROYED BY
THE SUPERIOR POWER OF THIS NATION.  WHILE UNDER HEAVY AND DESTRUCTIVE
ATTACK BY OUR FORCES, HIS TROOPS COMMITTED MANY BRUTAL ATROCITIES AND
OTHER HIGH CRIMES.  HOSTILITIES CEASED AND HE VOLUNTARILY SURRENDERED. 
AT THAT POINT HE WAS ENTITLED, AS AN INDIVIDUAL PROTECTED BY THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT, TO BE TREATED FAIRLY AND JUSTLY
ACCORDING TO THE ACCEPTED RULES OF LAW AND PROCEDURE.  HE WAS ALSO
ENTITLED TO A FAIR TRIAL AS TO ANY ALLEGED CRIMES AND TO BE FREE FROM
CHARGES OF LEGALLY UNRECOGNIZED CRIMES THAT WOULD SERVE ONLY TO PERMIT
HIS ACCUSERS TO SATISFY THEIR DESIRES FOR REVENGE. 

A MILITARY COMMISSION WAS APPOINTED TO TRY THE PETITIONER FOR AN
ALLEGED WAR CRIME.  THE TRIAL WAS ORDERED TO BE HELD IN TERRITORY OVER
WHICH THE UNITED STATES HAS COMPLETE SOVEREIGNTY.  NO MILITARY
NECESSITY OR OTHER EMERGENCY DEMANDED THE SUSPENSION OF THE SAFEGUARDS
OF DUE PROCESS.  YET PETITIONER WAS RUSHED TO TRIAL UNDER AN IMPROPER
CHARGE, GIVEN INSUFFICIENT TIME TO PREPARE AN ADEQUATE DEFENSE,
DEPRIVED OF THE BENEFITS OF SOME OF THE MOST ELEMENTARY RULES OF
EVIDENCE AND SUMMARILY SENTENCED TO BE HANGED.  IN ALL THIS NEEDLESS
AND UNSEEMLY HASTE THERE WAS NO SERIOUS ATTEMPT TO CHARGE OR TO PROVE
THAT HE COMMITTED A RECOGNIZED VIOLATION OF THE LAWS OF WAR.  HE WAS
NOT CHARGED WITH PERSONALLY PARTICIPATING IN THE ACTS OF ATROCITY OR
WITH ORDERING OR CONDONING THEIR COMMISSION.  NOT EVEN KNOWLEDGE OF
THESE CRIMES WAS ATTRIBUTED TO HIM.  IT WAS SIMPLY ALLEGED THAT HE
UNLAWFULLY DISREGARDED AND FAILED TO DISCHARGE HIS DUTY AS COMMANDER TO
CONTROL THE OPERATIONS OF THE MEMBERS OF HIS COMMAND, PERMITTING THEM
TO COMMIT THE ACTS OF ATROCITY.  THE RECORDED ANNALS OF WARFARE AND THE
ESTABLISHED PRINCIPLES OF INTERNATIONAL LAW AFFORD NOT THE SLIGHTEST
PRECEDENT FOR SUCH A CHARGE.  THIS INDICTMENT IN EFFECT PERMITTED THE
MILITARY COMMISSION TO MAKE THE CRIME WHATEVER IT WILLED, DEPENDENT
UPON ITS BIASED VIEW AS TO PETITIONER'S DUTIES AND HIS DISREGARD
THEREOF, A PRACTICE REMINISCENT OF THAT PURSUED IN CERTAIN LESS
RESPECTED NATIONS IN RECENT YEARS. 

IN MY OPINION, SUCH A PROCEDURE IS UNWORTHY OF THE TRADITIONS OF OUR
PEOPLE OR OF THE IMMENSE SACRIFICES THAT THEY HAVE MADE TO ADVANCE THE
COMMON IDEALS OF MANKIND.  THE HIGH FEELINGS OF THE MOMENT DOUBTLESS
WILL BE SATISFIED.  BUT IN THE SOBER AFTERGLOW WILL COME THE
REALIZATION OF THE BOUNDLESS AND DANGEROUS IMPLICATIONS OF THE
PROCEDURE SANCTIONED TODAY.  NO ONE IN A POSITION OF COMMAND IN AN
ARMY, FROM SERGEANT TO GENERAL, CAN ESCAPE THOSE IMPLICATIONS.  INDEED,
THE FATE OF SOME FUTURE PRESIDENT OF THE UNITED STATES AND HIS CHIEFS
OF STAFF AND MILITARY ADVISERS MAY WELL HAVE BEEN SEALED BY THIS
DECISION.  BUT EVEN MORE SIGNIFICANT WILL BE THE HATRED AND ILL-WILL
GROWING OUT OF THE APPLICATION OF THIS UNPRECEDENTED PROCEDURE.  THAT
HAS BEEN THE INEVITABLE EFFECT OF EVERY METHOD OF PUNISHMENT
DISREGARDING THE ELEMENT OF PERSONAL CULPABILITY.  THE EFFECT IN THIS
INSTANCE, UNFORTUNATELY, WILL BE MAGNIFIED INFINITELY, FOR HERE WE ARE
DEALING WITH THE RIGHTS OF MAN ON AN INTERNATIONAL LEVEL.  TO SUBJECT
AN ENEMY BELLIGERENT TO AN UNFAIR TRIAL, TO CHARGE HIM WITH AN
UNRECOGNIZED CRIME, OR TO VENT ON HIM OUR RETRIBUTIVE EMOTIONS ONLY
ANTAGONIZES THE ENEMY NATION AND HINDERS THE RECONCILIATION NECESSARY
TO A PEACEFUL WORLD. 

THAT THERE WERE BRUTAL ATROCITIES INFLICTED UPON THE HELPLESS
FILIPINO PEOPLE, TO WHOM TYRANNY IS NO STRANGER, BY JAPANESE ARMED
FORCES UNDER THE PETITIONER'S COMMAND IS UNDENIABLE.  STARVATION,
EXECUTION OR MASSACRE WITHOUT TRIAL, TORTURE, RAPE, MURDER AND WANTON
DESTRUCTION OF PROPERTY WERE FOREMOST AMONG THE OUTRIGHT VIOLATIONS OF
THE LAWS OF WAR AND OF THE CONSCIENCE OF A CIVILIZED WORLD.  THAT JUST
PUNISHMENT SHOULD BE METED OUT TO ALL THOSE RESPONSIBLE FOR CRIMINAL
ACTS OF THIS NATURE IS ALSO BEYOND DISPUTE.  BUT THESE FACTORS DO NOT
ANSWER THE PROBLEM IN THIS CASE.  THEY DO NOT JUSTIFY THE ABANDONMENT
OF OUR DEVOTION TO JUSTICE IN DEALING WITH A FALLEN ENEMY COMMANDER. 
TO CONCLUDE OTHERWISE IS TO ADMIT THAT THE ENEMY HAS LOST THE BATTLE
BUT HAS DESTROYED OUR IDEALS. 

WAR BREEDS ATROCITIES.  FROM THE EARLIEST CONFLICTS OF RECORDED
HISTORY TO THE GLOBAL STRUGGLES OF MODERN TIMES INHUMANITIES, LUST AND
PILLAGE HAVE BEEN THE INEVITABLE BY-PRODUCTS OF MAN'S RESORT TO FORCE
AND ARMS.  UNFORTUNATELY, SUCH DESPICABLE ACTS HAVE A DANGEROUS
TENDENCY TO CALL FORTH PRIMITIVE IMPULSES OF VENGEANCE AND RETALIATION
AMONG THE VICTIMIZED PEOPLES.  THE SATISFACTION OF SUCH IMPULSES IN
TURN BREEDS RESENTMENT AND FRESH TENSION.  THUS DOES THE SPIRAL OF
CRUELTY AND HATRED GROW. 

IF WE ARE EVER TO DEVELOP AN ORDERLY INTERNATIONAL COMMUNITY BASED
UPON A RECOGNITION OF HUMAN DIGNITY IT IS OF THE UTMOST IMPORTANCE THAT
THE NECESSARY PUNISHMENT OF THOSE GUILTY OF ATROCITIES BE AS FREE AS
POSSIBLE FROM THE UGLY STIGMA OF REVENGE AND VINDICTIVENESS.  JUSTICE
MUST BE TEMPERED BY COMPASSION RATHER THAN BY VENGEANCE.  IN THIS, THE
FIRST CASE INVOLVING THIS MOMENTOUS PROBLEM EVER TO REACH THIS COURT,
OUR RESPONSIBILITY IS BOTH LOFTY AND DIFFICULT.  WE MUST INSIST, WITHIN
THE CONFINES OF OUR PROPER JURISDICTION, THAT THE HIGHEST STANDARDS OF
JUSTICE BE APPLIED IN THIS TRIAL OF AN ENEMY COMMANDER CONDUCTED UNDER
THE AUTHORITY OF THE UNITED STATES.  OTHERWISE STARK RETRIBUTION WILL
BE FREE TO MASQUERADE IN A CLOAK OF FALSE LEGALISM.  AND THE HATRED AND
CYNICISM ENGENDERED BY THAT RETRIBUTION WILL SUPPLANT THE GREAT IDEALS
TO WHICH THIS NATION IS DEDICATED.    THIS COURT FORTUNATELY HAS TAKEN
THE FIRST AND MOST IMPORTANT STEP TOWARD INSURING THE SUPREMACY OF LAW
AND JUSTICE IN THE TREATMENT OF AN ENEMY BELLIGERENT ACCUSED OF
VIOLATING THE LAWS OF WAR.  JURISDICTION PROPERLY HAS BEEN ASSERTED TO
INQUIRE "INTO THE CAUSE OF RESTRAINT OF LIBERTY" OF SUCH A PERSON.  28
U.S.C. SEC. 452.  THUS THE OBNOXIOUS DOCTRINE ASSERTED BY THE
GOVERNMENT IN THIS CASE, TO THE EFFECT THAT RESTRAINTS OF LIBERTY
RESULTING FROM MILITARY TRIALS OF WAR CRIMINALS ARE POLITICAL MATTERS
COMPLETELY OUTSIDE THE ARENA OF JUDICIAL REVIEW, HAS BEEN REJECTED
FULLY AND UNQUESTIONABLY.  THIS DOES NOT MEAN, OF COURSE, THAT THE
FOREIGN AFFAIRS AND POLICIES OF THE NATION ARE PROPER SUBJECTS OF
JUDICIAL INQUIRY.  BUT WHEN THE LIBERTY OF ANY PERSON IS RESTRAINED BY
REASON OF THE AUTHORITY OF THE UNITED STATES THE WRIT OF HABEAS CORPUS
IS AVAILABLE TO TEST THE LEGALITY OF THAT RESTRAINT, EVEN THOUGH DIRECT
COURT REVIEW OF THE RESTRAINT IS PROHIBITED.  THE CONCLUSIVE
PRESUMPTION MUST BE MADE, IN THIS COUNTRY AT LEAST, THAT ILLEGAL
RESTRAINTS ARE UNAUTHORIZED AND UNJUSTIFIED BY ANY FOREIGN POLICY OF
THE GOVERNMENT AND THAT COMMONLY ACCEPTED JURIDICAL STANDARDS ARE TO BE
RECOGNIZED AND ENFORCED.  ON THAT BASIS JUDICIAL INQUIRY INTO THESE
MATTERS MAY PROCEED WITHIN ITS PROPER SPHERE. 

THE DETERMINATION OF THE EXTENT OF REVIEW OF WAR TRIALS CALLS FOR
JUDICIAL STATESMANSHIP OF THE HIGHEST ORDER.  THE ULTIMATE NATURE AND
SCOPE OF THE WRIT OF HABEAS CORPUS ARE WITHIN THE DISCRETION OF THE
JUDICIARY UNLESS VALIDLY CIRCUMSCRIBED BY CONGRESS.  HERE WE ARE
CONFRONTED WITH A USE OF THE WRIT UNDER CIRCUMSTANCES NOVEL IN THE
HISTORY OF THE COURT.  FOR MY OWN PART, I DO NOT FEEL THAT WE SHOULD BE
CONFINED BY THE TRADITIONAL LINES OF REVIEW DRAWN IN CONNECTION WITH
THE USE OF THE WRIT BY ORDINARY CRIMINALS WHO HAVE DIRECT ACCESS TO THE
JUDICIARY IN THE FIRST INSTANCE.  THOSE HELD BY THE MILITARY LACK ANY
SUCH ACCESS; CONSEQUENTLY THE JUDICIAL REVIEW AVAILABLE BY HABEAS
CORPUS MUST BE WIDER THAN USUAL IN ORDER THAT PROPER STANDARDS OF
JUSTICE MAY BE ENFORCEABLE. 

BUT FOR THE PURPOSES OF THIS CASE I ACCEPT THE SCOPE OF REVIEW
RECOGNIZED BY THE COURT AT THIS TIME.  AS I UNDERSTAND IT, THE
FOLLOWING ISSUES IN CONNECTION WITH WAR CRIMINAL TRIALS ARE REVIEWABLE
THROUGH THE USE OF THE WRIT OF HABEAS CORPUS:  (1) WHETHER THE MILITARY
COMMISSION WAS LAWFULLY CREATED AND HAD AUTHORITY TO TRY AND TO CONVICT
THE ACCUSED OF A WAR CRIME; (2) WHETHER THE CHARGE AGAINST THE ACCUSED
STATED A VIOLATION OF THE LAWS OF WAR; (3) WHETHER THE COMMISSION, IN
ADMITTING CERTAIN EVIDENCE, VIOLATED ANY LAW OR MILITARY COMMAND
DEFINING THE COMMISSION'S AUTHORITY IN THAT RESPECT; AND (4) WHETHER
THE COMMISSION LACKED JURISDICTION BECAUSE OF A FAILURE TO GIVE ADVANCE
NOTICE TO THE PROTECTING POWER AS REQUIRED BY TREATY OR CONVENTION. 

THE COURT, IN MY JUDGMENT, DEMONSTRATES CONCLUSIVELY THAT THE
MILITARY COMMISSION WAS LAWFULLY CREATED IN THIS INSTANCE AND THAT
PETITIONER COULD NOT OBJECT TO ITS POWER TO TRY HIM FOR A RECOGNIZED
WAR CRIME.  WITHOUT PAUSING HERE TO DISCUSS THE THIRD AND FOURTH
ISSUES, HOWEVER, I FIND IT IMPOSSIBLE TO AGREE THAT THE CHARGE AGAINST
THE PETITIONER STATED A RECOGNIZED VIOLATION OF THE LAWS OF WAR. 

IT IS IMPORTANT, IN THE FIRST PLACE, TO APPRECIATE THE BACKGROUND OF
EVENTS PRECEDING THIS TRIAL.  FROM OCTOBER 9, 1944, TO SEPTEMBER 2,
1945, THE PETITIONER WAS THE COMMANDING GENERAL OF THE 14TH ARMY GROUP
OF THE IMPERIAL JAPANESE ARMY, WITH HEADQUARTERS IN THE PHILIPPINES. 
THE RECONQUEST OF THE PHILIPPINES BY THE ARMED FORCES OF THE UNITED
STATES BEGAN APPROXIMATELY AT THE TIME WHEN THE PETITIONER ASSUMED THIS
COMMAND.  COMBINED WITH A GREAT AND DECISIVE SEA BATTLE, AN INVASION
WAS MADE ON THE ISLAND OF LEYTE ON OCTOBER 20, 1944.  "IN THE SIX DAYS
OF THE GREAT NAVAL ACTION THE JAPANESE POSITION IN THE PHILIPPINES HAD
BECOME EXTREMELY CRITICAL.  MOST OF THE SERVICEABLE ELEMENTS OF THE
JAPANESE NAVY HAD BEEN COMMITTED TO THE BATTLE WITH DISASTROUS
RESULTS.  THE STRIKE HAD MISCARRIED, AND GENERAL MACARTHUR'S LAND WEDGE
WAS FIRMLY IMPLANTED IN THE VULNERABLE FLANK OF THE ENEMY  ...  THERE
WERE 260,000 JAPANESE TROOPS SCATTERED OVER THE PHILIPPINES BUT MOST OF
THEM MIGHT AS WELL HAVE BEEN ON THE OTHER SIDE OF THE WORLD SO FAR AS
THE ENEMY'S ABILITY TO SHIFT THEM TO MEET THE AMERICAN THRUSTS WAS
CONCERNED.  IF GENERAL MACARTHUR SUCCEEDED IN ESTABLISHING HIMSELF IN
THE VISAYAS WHERE HE COULD STAGE, EXPLOIT, AND SPREAD UNDER COVER OF
OVERWHELMING NAVAL AND AIR SUPERIORITY, NOTHING COULD PREVENT HIM FROM
OVERRUNNING THE PHILIPPINES."  BIENNIAL REPORT OF THE CHIEF OF STAFF OF
THE UNITED STATES ARMY, JULY 1, 1943, TO JUNE 30, 1945, TO THE
SECRETARY OF WAR, P. 74. 

BY THE END OF 1944 THE ISLAND OF LEYTE WAS LARGELY IN AMERICAN
HANDS.  AND ON JANUARY 9, 1945, THE ISLAND OF LUZON WAS INVADED. 
"YAMASHITA'S INABILITY TO COPE WITH GENERAL MACARTHUR'S SWIFT MOVES,
HIS DESIRED REACTION TO THE DECEPTION MEASURES, THE GUERRILLAS, AND
GENERAL KENNEY'S AIRCRAFT COMBINED TO PLACE THE JAPANESE IN AN
IMPOSSIBLE SITUATION.  THE ENEMY WAS FORCED INTO A PIECEMEAL COMMITMENT
OF HIS TROOPS."  IBID., P. 78.  IT WAS AT THIS TIME AND PLACE THAT MOST
OF THE ALLEGED ATROCITIES TOOK PLACE.  ORGANIZED RESISTANCE AROUND
MANILA CEASED ON FEBRUARY 23.  REPEATED LAND AND AIR ASSAULTS
PULVERIZED THE ENEMY AND WITHIN A FEW MONTHS THERE WAS LITTLE LEFT OF
PETITIONER'S COMMAND EXCEPT A FEW REMNANTS WHICH HAD GATHERED FOR A
LAST STAND AMONG THE PRECIPITOUS MOUNTAINS. 

AS THE MILITARY COMMISSION HERE NOTED, "THE DEFENSE ESTABLISHED THE
DIFFICULTIES FACED BY THE ACCUSED WITH RESPECT NOT ONLY TO THE SWIFT
AND OVERPOWERING ADVANCE OF AMERICAN FORCES, BUT ALSO TO THE ERRORS OF
HIS PREDECESSORS, WEAKNESSES IN ORGANIZATION, EQUIPMENT, SUPPLY WITH
ESPECIAL REFERENCE TO FOOD AND GASOLINE, TRAINING, COMMUNICATION,
DISCIPLINE AND MORALE OF HIS TROOPS.  IT WAS ALLEGED THAT THE SUDDEN
ASSIGNMENT OF NAVAL AND AIR FORCES TO HIS TACTICAL COMMAND PRESENTED
ALMOST INSURMOUNTABLE DIFFICULTIES.  THIS SITUATION WAS FOLLOWED, THE
DEFENSE CONTENDED, BY FAILURE TO OBEY HIS ORDERS TO WITHDRAW TROOPS
FROM MANILA, AND THE SUBSEQUENT MASSACRE OF UNARMED CIVILIANS,
PARTICULARLY BY NAVAL FORCES.  PRIOR TO THE LUZON CAMPAIGN, NAVAL
FORCES HAD REPORTED TO A SEPARATE MINISTRY IN THE JAPANESE GOVERNMENT
AND NAVAL COMMANDERS MAY NOT HAVE BEEN RECEPTIVE OR EXPERIENCED IN THIS
INSTANCE WITH RESPECT TO A JOINT LAND OPERATION UNDER A SINGLE
COMMANDER WHO WAS DESIGNATED FROM THE ARMY SERVICE." 

THE DAY OF FINAL RECKONING FOR THE ENEMY ARRIVED IN AUGUST, 1945.  ON
SEPTEMBER 3, THE PETITIONER SURRENDERED TO THE UNITED STATES ARMY AT
BAGUIO, LUZON.  HE IMMEDIATELY BECAME A PRISONER OF WAR AND WAS
INTERNED IN PRISON IN CONFORMITY WITH THE RULES OF INTERNATIONAL LAW. 
ON SEPTEMBER 25, APPROXIMATELY THREE WEEKS AFTER SURRENDERING, HE WAS
SERVED WITH THE CHARGE IN ISSUE IN THIS CASE.  UPON SERVICE OF THE
CHARGE HE WAS REMOVED FROM THE STATUS OF A PRISONER OF WAR AND PLACED
IN CONFINEMENT AS AN ACCUSED WAR CRIMINAL.  ARRAIGNMENT FOLLOWED ON
OCTOBER 8 BEFORE A MILITARY COMMISSION SPECIALLY APPOINTED FOR THE
CASE.  PETITIONER PLEADED NOT GUILTY.  HE WAS ALSO SERVED ON THAT DAY
WITH A BILL OF PARTICULARS ALLEGING 64 CRIMES BY TROOPS UNDER HIS
COMMAND.  A SUPPLEMENTAL BILL ALLEGING 59 MORE CRIMES BY HIS TROOPS WAS
FILED ON OCTOBER 29, THE SAME DAY THAT THE TRIAL BEGAN.  NO CONTINUANCE
WAS ALLOWED FOR PREPARATION OF A DEFENSE AS TO THE SUPPLEMENTAL BILL. 
THE TRIAL CONTINUED UNINTERRUPTED UNTIL DECEMBER 5, 1945.  ON DECEMBER
7 PETITIONER WAS FOUND GUILTY AS CHARGED AND WAS SENTENCED TO BE
HANGED. 

THE PETITIONER WAS ACCUSED OF HAVING "UNLAWFULLY DISREGARDED AND
FAILED TO DISCHARGE HIS DUTY AS COMMANDER TO CONTROL THE OPERATIONS OF
THE MEMBERS OF HIS COMMAND, PERMITTING THEM TO COMMIT BRUTAL ATROCITIES
AND OTHER HIGH CRIMES."  THE BILLS OF PARTICULARS FURTHER ALLEGED THAT
SPECIFIC ACTS OF ATROCITY WERE COMMITTED BY "MEMBERS OF THE ARMED
FORCES OF JAPAN UNDER THE COMMAND OF THE ACCUSED."  NOWHERE WAS IT
ALLEGED THAT THE PETITIONER PERSONALLY COMMITTED ANY OF THE ATROCITIES,
OR THAT HE ORDERED THEIR COMMISSION, OR THAT HE HAD ANY KNOWLEDGE OF
THE COMMISSION THEREOF BY MEMBERS OF HIS COMMAND. 

THE FINDINGS OF THE MILITARY COMMISSION BEAR OUT THIS ABSENCE OF ANY
DIRECT PERSONAL CHARGE AGAINST THE PETITIONER.  THE COMMISSION MERELY
FOUND THAT ATROCITIES AND OTHER HIGH CRIMES "HAVE BEEN COMMITTED BY
MEMBERS OF THE JAPANESE ARMED FORCES UNDER YOUR COMMAND  ...  THAT THEY
WERE NOT SPORADIC IN NATURE BUT IN MANY CASES WERE METHODICALLY
SUPERVISED BY JAPANESE OFFICERS AND NONCOMMISSIONED OFFICERS; ...  THAT
DURING THE PERIOD IN QUESTION YOU FAILED TO PROVIDE EFFECTIVE CONTROL
OF YOUR TROOPS AS WAS REQUIRED BY THE CIRCUMSTANCES." 

IN OTHER WORDS, READ AGAINST THE BACKGROUND OF MILITARY EVENTS IN THE
PHILIPPINES SUBSEQUENT TO OCTOBER 9, 1944, THESE CHARGES AMOUNT TO
THIS:  "WE, THE VICTORIOUS AMERICAN FORCES, HAVE DONE EVERYTHING
POSSIBLE TO DESTROY AND DISORGANIZE YOUR LINES OF COMMUNICATION, YOUR
EFFECTIVE CONTROL OF YOUR PERSONNEL, YOUR ABILITY TO WAGE WAR.  IN
THOSE RESPECTS WE HAVE SUCCEEDED.  WE HAVE DEFEATED AND CRUSHED YOUR
FORCES.  AND NOW WE CHARGE AND CONDEMN YOU FOR HAVING BEEN INEFFICIENT
IN MAINTAINING CONTROL OF YOUR TROOPS DURING THE PERIOD WHEN WE WERE SO
EFFECTIVELY BESIEGING AND ELIMINATING YOUR FORCES AND BLOCKING YOUR
ABILITY TO MAINTAIN EFFECTIVE CONTROL.  MANY TERRIBLE ATROCITIES WERE
COMMITTED BY YOUR DISORGANIZED TROOPS.  BECAUSE THESE ATROCITIES WERE
SO WIDESPREAD WE WILL NOT BOTHER TO CHARGE OR PROVE THAT YOU COMMITTED,
ORDERED OR CONDONED ANY OF THEM.  WE WILL ASSUME THAT THEY MUST HAVE
RESULTED FROM YOUR INEFFICIENCY AND NEGLIGENCE AS A COMMANDER.  IN
SHORT, WE CHARGE YOU WITH THE CRIME OF INEFFICIENCY IN CONTROLLING YOUR
TROOPS.  WE WILL JUDGE THE DISCHARGE OF YOUR DUTIES BY THE
DISORGANIZATION WHICH WE OURSELVES CREATED IN LARGE PART.  OUR
STANDARDS OF JUDGMENT ARE WHATEVER WE WISH TO MAKE THEM." 

NOTHING IN ALL HISTORY OR IN INTERNATIONAL LAW, AT LEAST AS FAR AS I
AM AWARE, JUSTIFIES SUCH A CHARGE AGAINST A FALLEN COMMANDER OF A
DEFEATED FORCE.  TO USE THE VERY INEFFICIENCY AND DISORGANIZATION
CREATED BY THE VICTORIOUS FORCES AS THE PRIMARY BASIS FOR CONDEMNING
OFFICERS OF THE DEFEATED ARMIES BEARS NO RESEMBLANCE TO JUSTICE OR TO
MILITARY REALITY. 

INTERNATIONAL LAW MAKES NO ATTEMPT TO DEFINE THE DUTIES OF A
COMMANDER OF AN ARMY UNDER CONSTANT AND OVERWHELMING ASSAULT; NOR DOES
IT IMPOSE LIABILITY UNDER SUCH CIRCUMSTANCES FOR FAILURE TO MEET THE
ORDINARY RESPONSIBILITIES OF COMMAND.  THE OMISSION IS UNDERSTANDABLE. 
DUTIES, AS WELL AS ABILITY TO CONTROL TROOPS, VARY ACCORDING TO THE
NATURE AND INTENSITY OF THE PARTICULAR BATTLE.  TO FIND AN UNLAWFUL
DEVIATION FROM DUTY UNDER BATTLE CONDITIONS REQUIRES DIFFICULT AND
SPECULATIVE CALCULATIONS.  SUCH CALCULATIONS BECOME HIGHLY
UNTRUSTWORTHY WHEN THEY ARE MADE BY THE VICTOR IN RELATION TO THE
ACTIONS OF A VANQUISHED COMMANDER.  OBJECTIVE AND REALISTIC NORMS OF
CONDUCT ARE THEN EXTREMELY UNLIKELY TO BE USED IN FORMING A JUDGMENT AS
TO DEVIATIONS FROM DUTY.  THE PROBABILITY THAT VENGEANCE WILL FORM THE
MAJOR PART OF THE VICTOR'S JUDGMENT IS AN UNFORTUNATE BUT INESCAPABLE
FACT.  SO GREAT IS THAT PROBABILITY THAT INTERNATIONAL LAW REFUSES TO
RECOGNIZE SUCH A JUDGMENT AS A BASIS FOR A WAR CRIME, HOWEVER FAIR THE
JUDGMENT MAY BE IN A PARTICULAR INSTANCE.  IT IS THIS CONSIDERATION
THAT UNDERMINES THE CHARGE AGAINST THE PETITIONER IN THIS CASE.  THE
INDICTMENT PERMITS, INDEED COMPELS, THE MILITARY COMMISSION OF A
VICTORIOUS NATION TO SIT IN JUDGMENT UPON THE MILITARY STRATEGY AND
ACTIONS OF THE DEFEATED ENEMY AND TO USE ITS CONCLUSIONS TO DETERMINE
THE CRIMINAL LIABILITY OF AN ENEMY COMMANDER.  LIFE AND LIBERTY ARE
MADE TO DEPEND UPON THE BIASED WILL OF THE VICTOR RATHER THAN UPON
OBJECTIVE STANDARDS OF CONDUCT. 

THE COURT'S RELIANCE UPON VAGUE AND INDEFINITE REFERENCES IN CERTAIN
OF THE HAGUE CONVENTIONS AND THE GENEVA RED CROSS CONVENTION IS
MISPLACED.  THUS THE STATEMENT IN ARTICLE 1 OF THE ANNEX TO HAGUE
CONVENTION NO. IV OF OCTOBER 18, 1907, 36 STAT. 2277, 2295, TO THE
EFFECT THAT THE LAWS, RIGHTS AND DUTIES OF WAR APPLY TO MILITARY AND
VOLUNTEER CORPS ONLY IF THEY ARE "COMMANDED BY A PERSON RESPONSIBLE FOR
HIS SUBORDINATES," HAS NO BEARING UPON THE PROBLEM IN THIS CASE.  EVEN
IF IT HAS, THE CLAUSE "RESPONSIBLE FOR HIS SUBORDINATES" FAILS TO STATE
TO WHOM THE RESPONSIBILITY IS OWED OR TO INDICATE THE TYPE OF
RESPONSIBILITY CONTEMPLATED.  THE PHRASE HAS RECEIVED DIFFERING
INTERPRETATIONS BY AUTHORITIES ON INTERNATIONAL LAW.  IN OPPENHEIM,
INTERNATIONAL LAW (6TH ED., REV. BY LAUTERPACHT, 1940, VOL. 2, P. 204,
FN. 3) IT IS STATED THAT "THE MEANING OF THE WORD 'RESPONSIBLE'...  IS
NOT CLEAR.  IT PROBABLY MEANS 'RESPONSIBLE TO SOME HIGHER AUTHORITY,'
WHETHER THE PERSON IS APPOINTED FROM ABOVE OR ELECTED FROM BELOW; ..." 
ANOTHER AUTHORITY HAS STATED THAT THE WORD "RESPONSIBLE" IN THIS
PARTICULAR CONTEXT MEANS "PRESUMABLY TO A HIGHER AUTHORITY," OR
"POSSIBLY IT MERELY MEANS ONE WHO CONTROLS HIS SUBORDINATES AND WHO
THEREFORE CAN BE CALLED TO ACCOUNT FOR THEIR ACTS."  WHEATON,
INTERNATIONAL LAW (7TH ED., BY KEITH, LONDON, 1944, P. 172, FN. 30). 
STILL ANOTHER AUTHORITY, WESTLAKE, INTERNATIONAL LAW (1907, PART II, P.
61), STATES THAT "PROBABLY THE RESPONSIBILITY INTENDED IS NOTHING MORE
THAN A CAPACITY OF EXERCISING EFFECTIVE CONTROL."  FINALLY, EDMONDS AND
OPPENHEIM, LAND WARFARE (1912, P. 19, PAR. 22) STATE THAT IT IS ENOUGH
"IF THE COMMANDER OF THE CORPS IS REGULARLY OR TEMPORARILY COMMISSIONED
AS AN OFFICER OR IS A PERSON OF POSITION AND AUTHORITY  ..."  IT SEEMS
APPARENT BEYOND DISPUTE THAT THE WORD "RESPONSIBLE" WAS NOT USED IN
THIS PARTICULAR HAGUE CONVENTION TO HOLD THE COMMANDER OF A DEFEATED
ARMY TO ANY HIGH STANDARD OF EFFICIENCY WHEN HE IS UNDER DESTRUCTIVE
ATTACK; NOR WAS IT USED TO IMPUTE TO HIM ANY CRIMINAL RESPONSIBILITY
FOR WAR CRIMES COMMITTED BY TROOPS UNDER HIS COMMAND UNDER SUCH
CIRCUMSTANCES.    THE PROVISIONS OF THE OTHER CONVENTIONS REFERRED TO
BY THE COURT ARE ON THEIR FACE EQUALLY DEVOID OF RELEVANCE OR
SIGNIFICANCE TO THE SITUATION HERE IN ISSUE.  NEITHER ARTICLE 19 OF
HAGUE CONVENTION NO. X, 36 STAT. 2371, 2389, NOR ARTICLE 26 OF THE
GENEVA RED CROSS CONVENTION OF 1929, 47 STAT. 2074, 2092, REFERS TO
CIRCUMSTANCES WHERE THE TROOPS OF A COMMANDER COMMIT ATROCITIES WHILE
UNDER HEAVILY ADVERSE BATTLE CONDITIONS.  REFERENCE IS ALSO MADE TO THE
REQUIREMENT OF ARTICLE 43 OF THE ANNEX TO HAGUE CONVENTION NO. IV, 36
STAT. 2295, 2306, THAT THE COMMANDER OF A FORCE OCCUPYING ENEMY
TERRITORY "SHALL TAKE ALL THE MEASURES IN HIS POWER TO RESTORE, AND
ENSURE, AS FAR AS POSSIBLE, PUBLIC ORDER AND SAFETY, WHILE RESPECTING,
UNLESS ABSOLUTELY PREVENTED, THE LAWS IN FORCE IN THE COUNTRY."  BUT
THE PETITIONER WAS MORE THAN A COMMANDER OF A FORCE OCCUPYING ENEMY
TERRITORY.  HE WAS THE LEADER OF AN ARMY UNDER CONSTANT AND DEVASTATING
ATTACKS BY A SUPERIOR RE-INVADING FORCE.  THIS PROVISION IS SILENT AS
TO THE RESPONSIBILITIES OF A COMMANDER UNDER SUCH CONDITIONS AS THAT. 

EVEN THE LAWS OF WAR HERETOFORE RECOGNIZED BY THIS NATION FAIL TO
IMPUTE RESPONSIBILITY TO A FALLEN COMMANDER FOR EXCESSES COMMITTED BY
HIS DISORGANIZED TROOPS WHILE UNDER ATTACK.  PARAGRAPH 347 OF THE WAR
DEPARTMENT PUBLICATION, BASIC FIELD MANUAL, RULES OF LAND WARFARE, FM
27-10(1940), STATES THE PRINCIPAL OFFENSES UNDER THE LAWS OF WAR
RECOGNIZED BY THE UNITED STATES.  THIS INCLUDES ALL OF THE ATROCITIES
WHICH THE JAPANESE TROOPS WERE ALLEGED TO HAVE COMMITTED IN THIS
INSTANCE.  ORIGINALLY THIS PARAGRAPH CONCLUDED WITH THE STATEMENT THAT
"THE COMMANDERS ORDERING THE COMMISSION OF SUCH ACTS, OR UNDER WHOSE
AUTHORITY THEY ARE COMMITTED BY THEIR TROOPS, MAY BE PUNISHED BY THE
BELLIGERENT INTO WHOSE HANDS THEY MAY FALL."  THE MEANING OF THE PHRASE
"UNDER WHOSE AUTHORITY THEY ARE COMMITTED" WAS NOT CLEAR.  ON NOVEMBER
15, 1944, HOWEVER, THIS SENTENCE WAS DELETED AND A NEW PARAGRAPH WAS
ADDED RELATING TO THE PERSONAL LIABILITY OF THOSE WHO VIOLATE THE LAWS
OF WAR.  CHANGE 1, FM 27-10.  THE NEW PARAGRAPH 345.1 STATES THAT
"INDIVIDUALS AND ORGANIZATIONS WHO VIOLATE THE ACCEPTED LAWS AND
CUSTOMS OF WAR MAY BE PUNISHED THEREFOR.  HOWEVER, THE FACT THAT THE
ACTS COMPLAINED OF WERE DONE PURSUANT TO ORDER OF A SUPERIOR OR
GOVERNMENT SANCTION MAY BE TAKEN INTO CONSIDERATION IN DETERMINING
CULPABILITY, EITHER BY WAY OF DEFENSE OR IN MITIGATION OF PUNISHMENT. 
THE PERSON GIVING SUCH ORDERS MAY ALSO BE PUNISHED."  FROM THIS THE
CONCLUSION SEEMS INESCAPABLE THAT THE UNITED STATES RECOGNIZES
INDIVIDUAL CRIMINAL RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR
ONLY AS TO THOSE WHO COMMIT THE OFFENSES OR WHO ORDER OR DIRECT THEIR
COMMISSION.  SUCH WAS NOT THE ALLEGATION HERE.  CF. ARTICLE 67 OF THE
ARTICLES OF WAR, 10 U.S.C. SEC. 1539. 

THERE ARE NUMEROUS INSTANCES, ESPECIALLY WITH REFERENCE TO THE
PHILIPPINE INSURRECTION IN 1900 AND 1901, WHERE COMMANDING OFFICERS
WERE FOUND TO HAVE VIOLATED THE LAWS OF WAR BY SPECIFICALLY ORDERING
MEMBERS OF THEIR COMMAND TO COMMIT ATROCITIES AND OTHER WAR CRIMES. 
FRANCISCO FRANI, G.O. 143, DEC. 13, 1900, HQ. DIV. PHIL.; EUGENIO
FERNANDEZ AND JUAN SORIANO, G.O. 28, FEB. 6, 1901, HQ. DIV. PHIL.;
CIRIACO CABUNGAL, G.O. 188, JUL. 22, 1901, HQ. DIV. PHIL.; NATALIO
VALENCIA, G.O. 221, AUG. 17, 1901, HQ. DIV. PHIL.; ANICETA ANGELES,
G.O. 246, SEPT. 2, 1901, HQ. DIV. PHIL.; FRANCISCO BRAGANZA, G.O. 291,
SEPT. 26, 1901, HQ. DIV. PHIL.; LORENZO ANDAYA, G.O. 328, OCT. 25,
1901, HQ. DIV. PHIL.  AND IN OTHER CASES OFFICERS HAVE BEEN HELD LIABLE
WHERE THEY KNEW THAT A CRIME WAS TO BE COMMITTED, HAD THE POWER TO
PREVENT IT AND FAILED TO EXERCISE THAT POWER.  PEDRO ABAD SANTOS, G.O.
130, JUNE 19, 1901, HQ. DIV. PHIL.  CF. PEDRO A. CRUZ, G.O. 264, SEPT.
9, 1901, HQ. DIV. PHIL.  IN NO RECORDED INSTANCE, HOWEVER, HAS THE MERE
INABILITY TO CONTROL TROOPS UNDER FIRE OR ATTACK BY SUPERIOR FORCES
BEEN MADE THE BASIS OF A CHARGE OF VIOLATING THE LAWS OF WAR. 

THE GOVERNMENT CLAIMS THAT THE PRINCIPLE THAT COMMANDERS IN THE FIELD
ARE BOUND TO CONTROL THEIR TROOPS HAS BEEN APPLIED SO AS TO IMPOSE
LIABILITY ON THE UNITED STATES IN INTERNATIONAL ARBITRATIONS.  CASE OF
JEANNAUD (1880), 3 MOORE, INTERNATIONAL ARBITRATIONS (1898) 3000; CASE
OF THE ZAFIRO (1910), 5 HACKWORTH, DIGEST OF INTERNATIONAL LAW (1943)
707.  THE DIFFERENCE BETWEEN ARBITRATING PROPERTY RIGHTS AND CHARGING
AN INDIVIDUAL WITH A CRIME AGAINST THE LAWS OF WAR IS TOO OBVIOUS TO
REQUIRE ELABORATION.  BUT EVEN MORE SIGNIFICANT IS THE FACT THAT EVEN
THESE ARBITRATION CASES FAIL TO ESTABLISH ANY PRINCIPLE OF LIABILITY
WHERE TROOPS ARE UNDER CONSTANT ASSAULT AND DEMORALIZING INFLUENCES BY
ATTACKING FORCES.  THE SAME OBSERVATION APPLIES TO THE COMMON LAW AND
STATUTORY DOCTRINE, REFERRED TO BY THE GOVERNMENT, THAT ONE WHO IS
UNDER A LEGAL DUTY TO TAKE PROTECTIVE OR PREVENTIVE ACTION IS GUILTY OF
CRIMINAL HOMICIDE IF HE WILLFULLY OR NEGLIGENTLY OMITS TO ACT AND DEATH
IS PROXIMATELY CAUSED.  STATE V. HARRISON, 107 N.J.L. 213, 152 A. 867;
STATE V. IRVINE, 126 LA. 434, 52 SO. 567; HOLMES, THE COMMON LAW, P.
278.  NO ONE DENIES THAT INACTION OR NEGLIGENCE MAY GIVE RISE TO
LIABILITY, CIVIL OR CRIMINAL.  BUT IT IS QUITE ANOTHER THING TO SAY
THAT THE INABILITY TO CONTROL TROOPS UNDER HIGHLY COMPETITIVE AND
DISASTROUS BATTLE CONDITIONS RENDERS ONE GUILTY OF A WAR CRIME IN THE
ABSENCE OF PERSONAL CULPABILITY.  HAD THERE BEEN SOME ELEMENT OF
KNOWLEDGE OR DIRECT CONNECTION WITH THE ATROCITIES THE PROBLEM WOULD BE
ENTIRELY DIFFERENT.  MOREOVER, IT MUST BE REMEMBERED THAT WE ARE NOT
DEALING HERE WITH AN ORDINARY TORT OR CRIMINAL ACTION; PRECEDENTS IN
THOSE FIELDS ARE OF LITTLE IF ANY VALUE.  RATHER WE ARE CONCERNED WITH
A PROCEEDING INVOLVING AN INTERNATIONAL CRIME, THE TREATMENT OF WHICH
MAY HAVE UNTOLD EFFECTS UPON THE FUTURE PEACE OF THE WORLD.  THAT FACT
MUST BE KEPT UPPERMOST IN OUR SEARCH FOR PRECEDENT. 

THE ONLY CONCLUSION I CAN DRAW IS THAT THE CHARGE MADE AGAINST THE
PETITIONER IS CLEARLY WITHOUT PRECEDENT IN INTERNATIONAL LAW OR IN THE
ANNALS OF RECORDED MILITARY HISTORY.  THIS IS NOT TO SAY THAT ENEMY
COMMANDERS MAY ESCAPE PUNISHMENT FOR CLEAR AND UNLAWFUL FAILURES TO
PREVENT ATROCITIES.  BUT THAT PUNISHMENT SHOULD BE BASED UPON CHARGES
FAIRLY DRAWN IN LIGHT OF ESTABLISHED RULES OF INTERNATIONAL LAW AND
RECOGNIZED CONCEPTS OF JUSTICE. 

BUT THE CHARGE IN THIS CASE, AS PREVIOUSLY NOTED, WAS SPEEDILY DRAWN
AND FILED BUT THREE WEEKS AFTER THE PETITIONER SURRENDERED.  THE TRIAL
PROCEEDED WITH GREAT DISPATCH WITHOUT ALLOWING THE DEFENSE TIME TO
PREPARE AN ADEQUATE CASE.  PETITIONER'S RIGHTS UNDER THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT WERE GROSSLY AND OPENLY VIOLATED WITHOUT
ANY JUSTIFICATION.  ALL OF THIS WAS DONE WITHOUT ANY THOROUGH
INVESTIGATION AND PROSECUTION OF THOSE IMMEDIATELY RESPONSIBLE FOR THE
ATROCITIES, OUT OF WHICH MIGHT HAVE COME SOME PROOF OR INDICATION OF
PERSONAL CULPABILITY ON PETITIONER'S PART.  INSTEAD THE LOOSE CHARGE
WAS MADE THAT GREAT NUMBERS OF ATROCITIES HAD BEEN COMMITTED AND THAT
PETITIONER WAS THE COMMANDING OFFICER; HENCE HE MUST HAVE BEEN GUILTY
OF DISREGARD OF DUTY.  UNDER THAT CHARGE THE COMMISSION WAS FREE TO
ESTABLISH WHATEVER STANDARD OF DUTY ON PETITIONER'S PART THAT IT
DESIRED.  BY THIS FLEXIBLE METHOD A VICTORIOUS NATION MAY CONVICT AND
EXECUTE ANY OR ALL LEADERS OF A VANQUISHED FOE, DEPENDING UPON THE
PREVAILING DEGREE OF VENGEANCE AND THE ABSENCE OF ANY OBJECTIVE
JUDICIAL REVIEW. 

AT A TIME LIKE THIS WHEN EMOTIONS ARE UNDERSTANDABLY HIGH IT IS
DIFFICULT TO ADOPT A DISPASSIONATE ATTITUDE TOWARD A CASE OF THIS
NATURE.  YET NOW IS PRECISELY THE TIME WHEN THAT ATTITUDE IS MOST
ESSENTIAL.  WHILE PEOPLES IN OTHER LANDS MAY NOT SHARE OUR BELIEFS AS
TO DUE PROCESS AND THE DIGNITY OF THE INDIVIDUAL, WE ARE NOT FREE TO
GIVE EFFECT TO OUR EMOTIONS IN RECKLESS DISREGARD OF THE RIGHTS OF
OTHERS.  WE LIVE UNDER THE CONSTITUTION, WHICH IS THE EMBODIMENT OF ALL
THE HIGH HOPES AND ASPIRATIONS OF THE NEW WORLD.  AND IT IS APPLICABLE
IN BOTH WAR AND PEACE.  WE MUST ACT ACCORDINGLY.  INDEED, AN UNCURBED
SPIRIT OF REVENGE AND RETRIBUTION, MASKED IN FORMAL LEGAL PROCEDURE FOR
PURPOSES OF DEALING WITH A FALLEN ENEMY COMMANDER, CAN DO MORE LASTING
HARM THAN ALL OF THE ATROCITIES GIVING RISE TO THAT SPIRIT.  THE
PEOPLE'S FAITH IN THE FAIRNESS AND OBJECTIVENESS OF THE LAW CAN BE
SERIOUSLY UNDERCUT BY THAT SPIRIT.  THE FIRES OF NATIONALISM CAN BE
FURTHER KINDLED.  AND THE HEARTS OF ALL MANKIND CAN BE EMBITTERED AND
FILLED WITH HATRED, LEAVING FORLORN AND IMPOVERISHED THE NOBLE IDEAL OF
MALICE TOWARD NONE AND CHARITY TO ALL.  THESE ARE THE REASONS THAT LEAD
ME TO DISSENT IN THESE TERMS. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

NOT WITH EASE DOES ONE FIND HIS VIEWS AT ODDS WITH THE COURT'S IN A
MATTER OF THIS CHARACTER AND GRAVITY.  ONLY THE MOST DEEPLY FELT
CONVICTIONS COULD FORCE ONE TO DIFFER.  THAT REASON ALONE LEADS ME TO
DO SO NOW, AGAINST STRONG CONSIDERATIONS FOR WITHHOLDING DISSENT. 

MORE IS AT STAKE THAN GENERAL YAMASHITA'S FATE.  THERE COULD BE NO
POSSIBLE SYMPATHY FOR HIM IF HE IS GUILTY OF THE ATROCITIES FOR WHICH
HIS DEATH IS SOUGHT.  BUT THERE CAN BE AND SHOULD BE JUSTICE
ADMINISTERED ACCORDING TO LAW.  IN THIS STAGE OF WAR'S AFTERMATH IT IS
TOO EARLY FOR LINCOLN'S GREAT SPIRIT, BEST LIGHTED IN THE SECOND
INAUGURAL, TO HAVE WIDE HOLD FOR THE TREATMENT OF FOES.  IT IS NOT TOO
EARLY, IT IS NEVER TOO EARLY, FOR THE NATION STEADFASTLY TO FOLLOW ITS
GREAT CONSTITUTIONAL TRADITIONS, NONE OLDER OR MORE UNIVERSALLY
PROTECTIVE AGAINST UNBRIDLED POWER THAN DUE PROCESS OF LAW IN THE TRIAL
AND PUNISHMENT OF MEN, THAT IS, OF ALL MEN, WHETHER CITIZENS, ALIENS,
ALIEN ENEMIES OR ENEMY BELLIGERENTS.  IT CAN BECOME TOO LATE. 

THIS LONG-HELD ATTACHMENT MARKS THE GREAT DIVIDE BETWEEN OUR ENEMIES
AND OURSELVES.  THEIRS WAS A PHILOSOPHY OF UNIVERSAL FORCE.  OURS IS
ONE OF UNIVERSAL LAW, ALBEIT IMPERFECTLY MADE FLESH OF OUR SYSTEM AND
SO DWELLING AMONG US.  EVERY DEPARTURE WEAKENS THE TRADITION, WHETHER
IT TOUCHES THE HIGH OR THE LOW, THE POWERFUL OR THE WEAK, THE
TRIUMPHANT OR THE CONQUERED.  IF WE NEED NOT OR CANNOT BE MAGNANIMOUS,
WE CAN KEEP OUR OWN LAW ON THE PLANE FROM WHICH IT HAS NOT DESCENDED
HITHERTO AND TO WHICH THE DEFEATED FOES' NEVER ROSE. 

WITH ALL DEFERENCE TO THE OPPOSING VIEWS OF MY BRETHREN, WHOSE
ATTACHMENT TO THAT TRADITION NEEDLESS TO SAY IS NO LESS THAN MY OWN, I
CANNOT BELIEVE IN THE FACE OF THIS RECORD THAT THE PETITIONER HAS HAD
THE FAIR TRIAL OUR CONSTITUTION AND LAWS COMMAND.  BECAUSE I CANNOT
RECONCILE WHAT HAS OCCURRED WITH THEIR MEASURE, I AM FORCED TO SPEAK. 
AT BOTTOM MY CONCERN IS THAT WE SHALL NOT FORSAKE IN ANY CASE, WHETHER
YAMASHITA'S OR ANOTHER'S, THE BASIC STANDARDS OF TRIAL WHICH, AMONG
OTHER GUARANTIES, THE NATION FOUGHT TO KEEP; THAT OUR SYSTEM OF
MILITARY JUSTICE SHALL NOT ALONE AMONG ALL OUR FORMS OF JUDGING BE
ABOVE OR BEYOND THE FUNDAMENTAL LAW OR THE CONTROL OF CONGRESS WITHIN
ITS ORBIT OF AUTHORITY; AND THAT THIS COURT SHALL NOT FAIL IN ITS PART
UNDER THE CONSTITUTION TO SEE THAT THESE THINGS DO NOT HAPPEN. 

THIS TRIAL IS UNPRECEDENTED IN OUR HISTORY.  NEVER BEFORE HAVE WE
TRIED AND CONVICTED AN ENEMY GENERAL FOR ACTION TAKEN DURING
HOSTILITIES OR OTHERWISE IN THE COURSE OF MILITARY OPERATIONS OR DUTY. 
MUCH LESS HAVE WE CONDEMNED ONE FOR FAILING TO TAKE ACTION.  THE
NOVELTY IS NOT LESSENED BY THE TRIAL'S HAVING TAKEN PLACE AFTER
HOSTILITIES ENDED AND THE ENEMY, INCLUDING THE ACCUSED, HAD
SURRENDERED.  MOREOVER, SO FAR AS THE TIME PERMITTED FOR OUR
CONSIDERATION HAS GIVEN OPPORTUNITY, I HAVE NOT BEEN ABLE TO FIND
PRECEDENT FOR THE PROCEEDING IN THE SYSTEM OF ANY NATION FOUNDED IN THE
BASIC PRINCIPLES OF OUR CONSTITUTIONAL DEMOCRACY, IN THE LAWS OF WAR OR
IN OTHER INTERNATIONALLY BINDING AUTHORITY OR USAGE. 

THE NOVELTY IS LEGAL AS WELL AS HISTORICAL.  WE ARE ON STRANGE
GROUND.  PRECEDENT IS NOT ALL-CONTROLLING IN LAW.  THERE MUST BE ROOM
FOR GROWTH, SINCE EVERY PRECEDENT HAS AN ORIGIN.  BUT IT IS THE ESSENCE
OF OUR TRADITION FOR JUDGES, WHEN THEY STAND AT THE END OF THE MARKED
WAY, TO GO FORWARD WITH CAUTION KEEPING SIGHT, SO FAR AS THEY ARE ABLE,
UPON THE GREAT LANDMARKS LEFT BEHIND AND THE DIRECTION THEY POINT
AHEAD.  IF, AS MAY BE HOPED, WE ARE NOW TO ENTER UPON A NEW ERA OF LAW
IN THE WORLD, IT BECOMES MORE IMPORTANT THAN EVER BEFORE FOR THE
NATIONS CREATING THAT SYSTEM TO OBSERVE THEIR GREATEST TRADITIONS OF
ADMINISTERING JUSTICE, INCLUDING THIS ONE, BOTH IN THEIR OWN JUDGING
AND IN THEIR NEW CREATION.  THE PROCEEDINGS IN THIS CASE VEER SO FAR
FROM SOME OF OUR TIME-TESTED ROAD SIGNS THAT I CANNOT TAKE THE LARGE
STRIDES VALIDATING THEM WOULD DEMAND. 

      I. 

IT IS NOT IN OUR TRADITION FOR ANYONE TO BE CHARGED WITH CRIME WHICH
IS DEFINED AFTER HIS CONDUCT, ALLEGED TO BE CRIMINAL, HAS TAKEN PLACE;
FN1  OR IN LANGUAGE NOT SUFFICIENT TO INFORM HIM OF THE NATURE OF THE
OFFENSE OR TO ENABLE HIM TO MAKE DEFENSE.  FN2  MASS GUILT WE DO NOT
IMPUTE TO INDIVIDUALS, PERHAPS IN ANY CASE BUT CERTAINLY IN NONE WHERE
THE PERSON IS NOT CHARGED OR SHOWN ACTIVELY TO HAVE PARTICIPATED IN OR
KNOWINGLY TO HAVE FAILED IN TAKING ACTION TO PREVENT THE WRONGS DONE BY
OTHERS, HAVING BOTH THE DUTY AND THE POWER TO DO SO. 

IT IS OUTSIDE OUR BASIC SCHEME TO CONDEMN MEN WITHOUT GIVING
REASONABLE OPPORTUNITY FOR PREPARING DEFENSE; FN3  IN CAPITAL OR OTHER
SERIOUS CRIMES TO CONVICT ON "OFFICIAL DOCUMENTS ...; AFFIDAVITS; ...
DOCUMENTS OR TRANSLATIONS THEREOF; DIARIES  ..., PHOTOGRAPHS, MOTION
PICTURE FILMS, AND  ...  NEWSPAPERS"  FN4  OR ON HEARSAY, ONCE, TWICE
OR THRICE REMOVED,  FN5 MORE PARTICULARLY WHEN THE DOCUMENTARY EVIDENCE
OR SOME OF IT IS PREPARED EX PARTE BY THE PROSECUTING AUTHORITY AND
INCLUDES NOT ONLY OPINION BUT CONCLUSIONS OF GUILT.  NOR IN SUCH CASES
DO WE DENY THE RIGHTS OF CONFRONTATION OF WITNESSES AND CROSS
EXAMINATION.  FN6    OUR TRADITION DOES NOT ALLOW CONVICTION BY
TRIBUNALS BOTH AUTHORIZED AND BOUND  FN7  BY THE INSTRUMENT OF THEIR
CREATION TO RECEIVE AND CONSIDER EVIDENCE WHICH IS EXPRESSLY EXCLUDED
BY ACT OF CONGRESS OR BY TREATY OBLIGATION; NOR IS IT IN ACCORD WITH
OUR BASIC CONCEPTS TO MAKE THE TRIBUNAL, SPECIALLY CONSTITUTED FOR THE
PARTICULAR TRIAL, REGARDLESS OF THOSE PROHIBITIONS THE SOLE AND
EXCLUSIVE JUDGE OF THE CREDIBILITY, PROBATIVE VALUE AND ADMISSIBILITY
OF WHATEVER MAY BE TENDERED AS EVIDENCE. 

THE MATTER IS NOT ONE MERELY OF THE CHARACTER AND ADMISSIBILITY OF
EVIDENCE.  IT GOES TO THE VERY COMPETENCY OF THE TRIBUNAL TO TRY AND
PUNISH CONSISTENTLY WITH THE CONSTITUTION, THE LAWS OF THE UNITED
STATES MADE IN PURSUANCE THEREOF, AND TREATIES MADE UNDER THE NATION'S
AUTHORITY. 

ALL THESE DEVIATIONS FROM THE FUNDAMENTAL LAW, AND OTHERS, OCCURRED
IN THE COURSE OF CONSTITUTING THE COMMISSION, THE PREPARATION FOR TRIAL
AND DEFENSE, THE TRIAL ITSELF, AND THEREFORE, IN EFFECT, IN THE
SENTENCE IMPOSED.  WHETHER TAKEN SINGLY IN SOME INSTANCES AS DEPARTURES
FROM SPECIFIC CONSTITUTIONAL MANDATES OR IN TOTALITY AS IN VIOLATION OF
THE FIFTH AMENDMENT'S COMMAND THAT NO PERSON SHALL BE DEPRIVED OF LIFE,
LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW, A TRIAL SO VITIATED
CANNOT WITHSTAND CONSTITUTIONAL SCRUTINY. 

ONE BASIC PROTECTION OF OUR SYSTEM AND ONE ONLY, PETITIONER HAS HAD. 
HE HAS BEEN REPRESENTED BY ABLE COUNSEL, OFFICERS OF THE ARMY HE
FOUGHT.  THEIR DIFFICULT ASSIGNMENT HAS BEEN DONE WITH EXTRAORDINARY
FIDELITY, NOT ONLY TO THE ACCUSED, BUT TO THEIR HIGH CONCEPTION OF
MILITARY JUSTICE, ALWAYS TO BE ADMINISTERED IN SUBORDINATION TO THE
CONSTITUTION AND CONSISTENT ACTS OF CONGRESS AND TREATIES.  BUT, AS
WILL APPEAR, EVEN THIS CONCEDED SHIELD WAS TAKEN AWAY IN MUCH OF ITS
VALUE, BY DENIAL OF REASONABLE OPPORTUNITY FOR THEM TO PERFORM THEIR
FUNCTION. 

ON THIS DENIAL AND THE COMMISSION'S INVALID CONSTITUTION
SPECIFICALLY, BUT ALSO MORE GENERALLY UPON THE TOTALITY OF DEPARTURES
FROM CONSTITUTIONAL NORMS INHERENT IN THE IDEA OF A FAIR TRIAL, I REST
MY JUDGMENT THAT THE COMMISSION WAS WITHOUT JURISDICTION FROM THE
BEGINNING TO TRY OR PUNISH THE PETITIONER AND THAT, IF IT HAD ACQUIRED
JURISDICTION THEN, ITS POWER TO PROCEED WAS LOST IN THE COURSE OF WHAT
WAS DONE BEFORE AND DURING TRIAL. 

ONLY ON ONE VIEW, IN MY OPINION, COULD EITHER OF THESE CONCLUSIONS BE
AVOIDED.  THIS WOULD BE THAT AN ENEMY BELLIGERENT IN PETITIONER'S
POSITION IS ALTOGETHER BEYOND THE PALE OF CONSTITUTIONAL PROTECTION,
REGARDLESS OF THE FACT THAT HOSTILITIES HAD ENDED AND HE HAD
SURRENDERED WITH HIS COUNTRY.  THE GOVERNMENT HAS SO ARGUED, URGING
THAT WE ARE STILL AT WAR WITH JAPAN AND ALL THE POWER OF THE MILITARY
EFFECTIVE DURING ACTIVE HOSTILITIES IN THEATRES OF COMBAT CONTINUES IN
FULL FORCE UNAFFECTED BY THE EVENTS OF AUGUST 14, 1945, AND AFTER. 

IN THIS VIEW THE ACTION TAKEN HERE IS ONE OF MILITARY NECESSITY,
EXCLUSIVELY WITHIN THE AUTHORITY OF THE PRESIDENT AS COMMANDER-IN-CHIEF
AND HIS MILITARY SUBORDINATES TO TAKE IN WARDING OFF MILITARY DANGER
AND SUBJECT TO NO JUDICIAL RESTRAINT ON ANY ACCOUNT, ALTHOUGH SOMEWHAT
INCONSISTENTLY IT IS SAID THIS COURT MAY "EXAMINE" THE PROCEEDINGS
GENERALLY. 

AS I UNDERSTAND THE COURT, THIS IS IN SUBSTANCE THE EFFECT OF WHAT
HAS BEEN DONE.  FOR I CANNOT CONCEIVE ANY INSTANCE OF DEPARTURE FROM
OUR BASIC CONCEPTS OF FAIR TRIAL, IF THE FAILURES HERE ARE NOT
SUFFICIENT TO PRODUCE THAT EFFECT. 

WE ARE TECHNICALLY STILL AT WAR, BECAUSE PEACE HAS NOT BEEN
NEGOTIATED FINALLY OR DECLARED.  BUT THERE IS NO LONGER THE DANGER
WHICH ALWAYS EXISTS BEFORE SURRENDER AND ARMISTICE.  MILITARY NECESSITY
DOES NOT DEMAND THE SAME MEASURES.  THE NATION MAY BE MORE SECURE NOW
THAN AT ANY TIME AFTER PEACE IS OFFICIALLY CONCLUDED.  IN THESE FACTS
IS ONE GREAT DIFFERENCE FROM EX PARTE QUIRIN, 317 U.S. 1.  PUNITIVE
ACTION TAKEN NOW CAN BE EFFECTIVE ONLY FOR THE NEXT WAR, FOR PURPOSES
OF MILITARY SECURITY.  AND ENEMY ALIENS, INCLUDING BELLIGERENTS, NEED
THE ATTENUATED PROTECTIONS OUR SYSTEM EXTENDS TO THEM MORE NOW THAN
BEFORE HOSTILITIES CEASED OR THAN THEY MAY AFTER A TREATY OF PEACE IS
SIGNED.  AMPLE POWER THERE IS TO PUNISH THEM OR OTHERS FOR CRIMES,
WHETHER UNDER THE LAWS OF WAR DURING ITS COURSE OR LATER DURING
OCCUPATION.  THERE CAN BE NO QUESTION OF THAT.  THE ONLY QUESTION IS
HOW IT SHALL BE DONE, CONSISTENTLY WITH UNIVERSAL CONSTITUTIONAL
COMMANDS OR OUTSIDE THEIR RESTRICTING EFFECTS.  IN THIS SENSE I THINK
THE CONSTITUTION FOLLOWS THE FLAG. 

THE OTHER THING TO BE MENTIONED IN ORDER TO BE PUT ASIDE IS THAT WE
HAVE NO QUESTION HERE OF WHAT THE MILITARY MIGHT HAVE DONE IN A FIELD
OF COMBAT.  THERE THE MAXIM ABOUT THE LAW BECOMING SILENT IN THE NOISE
OF ARMS APPLIES.  THE PURPOSE OF BATTLE IS TO KILL.  BUT IT DOES NOT
FOLLOW THAT THIS WOULD JUSTIFY KILLING BY TRIAL AFTER CAPTURE OR
SURRENDER, WITHOUT COMPLIANCE WITH LAWS OR TREATIES MADE TO APPLY IN
SUCH CASES, WHETHER TRIAL IS BEFORE OR AFTER HOSTILITIES END. 

I TURN NOW TO DISCUSS SOME OF THE DETAILS OF WHAT HAS TAKEN PLACE. 
MY BASIC DIFFERENCE IS WITH THE COURT'S VIEW THAT PROVISIONS OF THE
ARTICLES OF WAR AND OF TREATIES ARE NOT MADE APPLICABLE TO THIS
PROCEEDING AND WITH ITS RULING THAT, ABSENT SUCH APPLICABLE PROVISIONS,
NONE OF THE THINGS DONE SO VITIATED THE TRIAL AND SENTENCE AS TO
DEPRIVE THE COMMISSION OF JURISDICTION. 

MY BROTHER MURPHY HAS DISCUSSED THE CHARGE WITH RESPECT TO THE
SUBSTANCE OF THE CRIME.  WITH HIS CONCLUSIONS IN THIS RESPECT I AGREE. 
MY OWN PRIMARY CONCERN WILL BE WITH THE CONSTITUTION OF THE COMMISSION
AND OTHER MATTERS TAKING PLACE IN THE COURSE OF THE PROCEEDINGS,
RELATING CHIEFLY TO THE DENIAL OF REASONABLE OPPORTUNITY TO PREPARE
PETITIONER'S DEFENSE AND THE SUFFICIENCY OF THE EVIDENCE, TOGETHER WITH
SERIOUS QUESTIONS OF ADMISSIBILITY, TO PROVE AN OFFENSE, ALL GOING AS I
THINK TO THE COMMISSION'S JURISDICTION. 

NECESSARILY ONLY A SHORT SKETCH CAN BE GIVEN CONCERNING EACH MATTER. 
AND IT MAY BE STATED AT THE START THAT, ALTHOUGH IT WAS RULED IN EX
PARTE QUIRIN, SUPRA, THAT THIS COURT HAD NO FUNCTION TO REVIEW THE
EVIDENCE, IT WAS NOT THERE OR ELSEWHERE DETERMINED THAT IT COULD NOT
ASCERTAIN WHETHER CONVICTION IS FOUNDED UPON EVIDENCE EXPRESSLY
EXCLUDED BY CONGRESS OR TREATY; NOR DOES THE COURT PURPORT TO DO SO
NOW. 

II.

             INVALIDITY OF THE COMMISSION'S CONSTITUTION. 

THE FOUNTAINHEAD OF THE COMMISSION'S AUTHORITY WAS GENERAL
MACARTHUR'S DIRECTIVE BY WHICH GENERAL STYER WAS ORDERED TO AND
PURSUANT TO WHICH HE DID PROCEED WITH CONSTITUTING THE COMMISSION.  FN8
THE DIRECTIVE WAS ACCOMPANIED BY ELABORATE AND DETAILED RULES AND
REGULATIONS PRESCRIBING THE PROCEDURE AND RULES OF EVIDENCE TO BE
FOLLOWED, OF WHICH FOR PRESENT PURPOSES SEC. 16, SET FORTH BELOW,  FN9
IS CRUCIAL. 

REPORTS, AFFIDAVITS, DEPOSITIONS, DIARIES, LETTERS, COPIES OF DOCUMENTS
OR OTHER SECONDARY EVIDENCE OF THEIR CONTENTS, HEARSAY, OPINION
EVIDENCE AND CONCLUSIONS, IN FACT OF ANYTHING WHICH IN THE COMMISSION'S
OPINION "WOULD BE OF ASSISTANCE IN PROVING OR DISPROVING THE CHARGE,"
WITHOUT ANY OF THE USUAL MODES OF AUTHENTICATION. 

A MORE COMPLETE ABROGATION OF CUSTOMARY SAFEGUARDS RELATING TO THE
PROOF, WHETHER IN THE USUAL RULES OF EVIDENCE OR ANY REASONABLE
SUBSTITUTE AND WHETHER FOR USE IN THE TRIAL OF CRIME IN THE CIVIL
COURTS OR MILITARY TRIBUNALS, HARDLY COULD HAVE BEEN MADE.  SO FAR AS
THE ADMISSIBILITY AND PROBATIVE VALUE OF EVIDENCE WAS CONCERNED, THE
DIRECTIVE MADE THE COMMISSION A LAW UNTO ITSELF. 

IT ACTED ACCORDINGLY.  AS AGAINST INSISTENT AND PERSISTENT OBJECTION
TO THE RECEPTION OF ALL KINDS OF "EVIDENCE," ORAL, DOCUMENTARY AND
PHOTOGRAPHIC, FOR NEARLY EVERY KIND OF DEFECT UNDER ANY OF THE USUAL
PREVAILING STANDARDS FOR ADMISSIBILITY AND PROBATIVE VALUE, THE
COMMISSION NOT ONLY CONSISTENTLY RULED AGAINST THE DEFENSE, BUT
REPEATEDLY STATED IT WAS BOUND BY THE DIRECTIVE TO RECEIVE THE KINDS OF
EVIDENCE IT SPECIFIED,  FN10  REPRIMANDED COUNSEL FOR CONTINUING TO
MAKE OBJECTION, DECLINED TO HEAR FURTHER OBJECTIONS, AND IN MORE THAN
ONE INSTANCE DURING THE COURSE OF THE PROCEEDINGS REVERSED ITS RULINGS
FAVORABLE TO THE DEFENSE, WHERE INITIALLY IT HAD DECLINED TO RECEIVE
WHAT THE PROSECUTION OFFERED.  EVERY CONCEIVABLE KIND OF STATEMENT,
RUMOR, REPORT, AT FIRST, SECOND, THIRD OR FURTHER HAND, WRITTEN,
PRINTED OR ORAL, AND ONE "PROPAGANDA" FILM WERE ALLOWED TO COME IN,
MOST OF THIS RELATING TO ATROCITIES COMMITTED BY TROOPS UNDER
PETITIONER'S COMMAND THROUGHOUT THE SEVERAL THOUSAND ISLANDS OF THE
PHILIPPINE ARCHIPELAGO DURING THE PERIOD OF ACTIVE HOSTILITIES COVERED
BY THE AMERICAN FORCES' RETURN TO AND RECAPTURE OF THE PHILIPPINES. 
FN11 

THE FINDINGS REFLECT THE CHARACTER OF THE PROOF AND THE CHARGE.  THE
STATEMENT QUOTED ABOVE FN12  GIVES ONLY A NUMERICAL IDEA OF THE
INSTANCES IN WHICH ORDINARY SAFEGUARDS IN RECEPTION OF WRITTEN EVIDENCE
WERE IGNORED.  IN ADDITION TO THESE 423 "EXHIBITS," THE FINDINGS STATE
THE COMMISSION "HAS HEARD 286 PERSONS DURING THE COURSE OF THIS TRIAL,
MOST OF WHOM HAVE GIVEN EYE-WITNESS ACCOUNTS OF WHAT THEY ENDURED OR
WHAT THEY SAW." 

BUT THERE IS NOT A SUGGESTION IN THE FINDINGS THAT PETITIONER
PERSONALLY PARTICIPATED IN, WAS PRESENT AT THE OCCURRENCE OF, OR
ORDERED ANY OF THESE INCIDENTS, WITH THE EXCEPTION OF THE WHOLLY
INFERENTIAL SUGGESTION NOTED BELOW.  NOR IS THERE ANY EXPRESS FINDING
THAT HE KNEW OF ANY ONE OF THE INCIDENTS IN PARTICULAR OR OF ALL TAKEN
TOGETHER.  THE ONLY INFERENTIAL FINDINGS THAT HE HAD KNOWLEDGE, OR THAT
THE COMMISSION SO FOUND, ARE IN THE STATEMENT THAT THE "CRIMES ALLEGED
TO HAVE BEEN PERMITTED BY THE ACCUSED IN VIOLATION OF THE LAWS OF WAR
MAY BE GROUPED INTO THREE CATEGORIES" SET OUT BELOW,  FN13  IN THE
FURTHER STATEMENT THAT "THE PROSECUTION PRESENTED EVIDENCE TO SHOW THAT
THE CRIMES WERE SO EXTENSIVE AND WIDESPREAD, BOTH AS TO TIME AND AREA,
FN14 THAT THEY MUST EITHER HAVE BEEN WILFULLY PERMITTED BY THE ACCUSED,
OR SECRETLY ORDERED BY" HIM; AND IN THE CONCLUSION OF GUILT AND THE
SENTENCE.  FN15  INDEED THE COMMISSION'S ULTIMATE FINDINGS FN16  DRAW
NO EXPRESS CONCLUSION OF KNOWLEDGE, BUT STATE ONLY TWO THINGS:  (1) THE
FACT OF WIDESPREAD ATROCITIES AND CRIMES; (2) THAT PETITIONER "FAILED
TO PROVIDE EFFECTIVE CONTROL  ... AS WAS REQUIRED BY THE
CIRCUMSTANCES." 

THIS VAGUENESS, IF NOT VACUITY, IN THE FINDINGS RUNS THROUGHOUT THE
PROCEEDINGS, FROM THE CHARGE ITSELF THROUGH THE PROOF AND THE FINDINGS,
TO THE CONCLUSION.  IT AFFECTS THE VERY GIST OF THE OFFENSE, WHETHER
THAT WAS WILFUL, INFORMED AND INTENTIONAL OMISSION TO RESTRAIN AND
CONTROL TROOPS KNOWN BY PETITIONER TO BE COMMITTING CRIMES OR WAS ONLY
A NEGLIGENT FAILURE ON HIS PART TO DISCOVER THIS AND TAKE WHATEVER
MEASURES HE THEN COULD TO STOP THE CONDUCT. 

ALTHOUGH IT IS IMPOSSIBLE TO DETERMINE FROM WHAT IS BEFORE US WHETHER
PETITIONER IN FACT HAS BEEN CONVICTED OF ONE OR THE OTHER OR OF BOTH
THESE THINGS,  FN17  THE CASE HAS BEEN PRESENTED ON THE FORMER BASIS
AND, UNLESS AS IS NOTED BELOW THERE IS FATAL DUPLICITY, IT MUST BE
TAKEN THAT THE CRIME CHARGED AND SOUGHT TO BE PROVED WAS ONLY THE
FAILURE, WITH KNOWLEDGE, TO PERFORM THE COMMANDER'S FUNCTION OF
CONTROL, ALTHOUGH THE COURT'S OPINION NOWHERE EXPRESSLY DECLARES THAT
KNOWLEDGE WAS ESSENTIAL TO GUILT OR NECESSARY TO BE SET FORTH IN THE
CHARGE. 

IT IS IN RESPECT TO THIS FEATURE ESPECIALLY, QUITE APART FROM THE
RECEPTION OF UNVERIFIED RUMOR, REPORT, ETC., THAT PERHAPS THE GREATEST
PREJUDICE AROSE FROM THE ADMISSION OF UNTRUSTWORTHY, UNVERIFIED,
UNAUTHENTICATED EVIDENCE WHICH COULD NOT BE PROBED BY CROSS-EXAMINATION
OR OTHER MEANS OF TESTING CREDIBILITY, PROBATIVE VALUE OR
AUTHENTICITY. 

COUNSEL FOR THE DEFENSE HAVE INFORMED US IN THE BRIEF AND AT THE
ARGUMENT THAT THE SOLE PROOF OF KNOWLEDGE INTRODUCED AT THE TRIAL WAS
IN THE FORM OF EX PARTE AFFIDAVITS AND DEPOSITIONS.  APART FROM WHAT
HAS BEEN EXCERPTED FROM THE RECORD IN THE APPLICATIONS AND THE BRIEFS,
AND SUCH PORTIONS OF THE RECORD AS I HAVE BEEN ABLE TO EXAMINE, IT HAS
BEEN IMPOSSIBLE FOR ME FULLY TO VERIFY COUNSEL'S STATEMENT IN THIS
RESPECT.  BUT THE GOVERNMENT HAS NOT DISPUTED IT; AND IT HAS MAINTAINED
THAT WE HAVE NO RIGHT TO EXAMINE THE RECORD UPON ANY QUESTION "OF
EVIDENCE."  ACCORDINGLY, WITHOUT CONCESSION TO THAT VIEW, THE STATEMENT
OF COUNSEL IS TAKEN FOR THE FACT.  AND IN THAT STATE OF THINGS
PETITIONER HAS BEEN CONVICTED OF A CRIME IN WHICH KNOWLEDGE IS AN
ESSENTIAL ELEMENT, WITH NO PROOF OF KNOWLEDGE OTHER THAN WHAT WOULD BE
INADMISSIBLE IN ANY OTHER CAPITAL CASE OR PROCEEDING UNDER OUR SYSTEM,
CIVIL OR MILITARY, AND WHICH FURTHERMORE CONGRESS HAS EXPRESSLY
COMMANDED SHALL NOT BE RECEIVED IN SUCH CASES TRIED BY MILITARY
COMMISSIONS AND OTHER MILITARY TRIBUNALS.  FN18 

MOREOVER COUNSEL ASSERT IN THE BRIEF, AND THIS ALSO IS NOT DENIED,
THAT THE SOLE PROOF MADE OF CERTAIN OF THE SPECIFICATIONS IN THE BILLS
OF PARTICULARS WAS BY EX PARTE AFFIDAVITS.  IT WAS IN RELATION TO THIS
ALSO VITAL PHASE OF THE PROOF THAT THERE OCCURRED ONE OF THE
COMMISSION'S REVERSALS OF ITS EARLIER RULINGS IN FAVOR OF THE DEFENSE,
FN19  A FACT IN ITSELF CONCLUSIVE DEMONSTRATION OF THE NECESSITY TO THE
PROSECUTION'S CASE OF THE PROHIBITED TYPE OF EVIDENCE AND OF ITS
PREJUDICIAL EFFECTS UPON THE DEFENSE.    THESE TWO BASIC ELEMENTS IN
THE PROOF, NAMELY, PROOF OF KNOWLEDGE OF THE CRIMES AND PROOF OF THE
SPECIFICATIONS IN THE BILLS, THAT IS, OF THE ATROCITIES THEMSELVES,
CONSTITUTE THE MOST IMPORTANT INSTANCES PERHAPS, IF NOT THE MOST
FLAGRANT OF DEPARTURE NOT ONLY FROM THE EXPRESS COMMAND OF CONGRESS
AGAINST RECEIVING SUCH PROOF BUT FROM THE WHOLE BRITISH-AMERICAN
TRADITION OF THE COMMON LAW AND THE CONSTITUTION.  MANY OTHERS
OCCURRED, WHICH THERE IS NEITHER TIME NOR SPACE TO MENTION.  FN21 

PETITIONER ASSERTS, AND THERE CAN BE NO REASON TO DOUBT, THAT BY THE
USE OF ALL THIS FORBIDDEN EVIDENCE HE WAS DEPRIVED OF THE RIGHT OF
CROSS-EXAMINATION AND OTHER MEANS TO ESTABLISH THE CREDIBILITY OF THE
DEPONENTS OR AFFIANTS, NOT TO SPEAK OF THE AUTHORS OF REPORTS, LETTERS,
DOCUMENTS AND NEWSPAPER ARTICLES; OF OPPORTUNITY TO DETERMINE WHETHER
THE MULTITUDINOUS CRIMES SPECIFIED IN THE BILLS WERE COMMITTED IN FACT
BY TROOPS UNDER HIS COMMAND OR BY NAVAL OR AIR FORCE TROOPS NOT UNDER
HIS COMMAND AT THE TIME ALLEGED; TO ASCERTAIN WHETHER THE CRIMES
ATTESTED WERE ISOLATED ACTS OF INDIVIDUAL SOLDIERS OR WERE MILITARY
ACTS COMMITTED BY TROOP UNITS ACTING UNDER SUPERVISION OF OFFICERS;
AND, FINALLY, WHETHER "IN SHORT, THERE WAS SUCH A 'PATTERN' OF" CONDUCT
AS THE PROSECUTION ALLEGED AND ITS WHOLE THEORY OF THE CRIME AND THE
EVIDENCE REQUIRED TO BE MADE OUT. 

HE POINTS OUT IN THIS CONNECTION THAT THE COMMISSION BASED ITS
DECISION ON A FINDING AS TO THE EXTENT AND NUMBER OF THE ATROCITIES AND
THAT THIS OF ITSELF ESTABLISHES THE PREJUDICIAL EFFECT OF THE
AFFIDAVITS, ETC., AND OF THE DENIAL RESULTING FROM THEIR RECEPTION OF
ANY MEANS OF PROBING THE EVIDENCE THEY CONTAINED, INCLUDING ALL
OPPORTUNITY FOR CROSS-EXAMINATION.  YET IT IS SAID THERE IS NO
SUFFICIENT SHOWING OF PREJUDICE.  THE EFFECT COULD NOT HAVE BEEN OTHER
THAN HIGHLY PREJUDICIAL.  THE MATTER IS NOT ONE MERELY OF "RULES OF
EVIDENCE."  IT GOES, AS WILL APPEAR MORE FULLY LATER, TO THE BASIC
RIGHT OF DEFENSE, INCLUDING SOME FAIR OPPORTUNITY TO TEST PROBATIVE
VALUE. 

INSUFFICIENT AS THIS RECITAL IS TO GIVE A FAIR IMPRESSION OF WHAT WAS
DONE, IT IS ENOUGH TO SHOW THAT THIS WAS NO TRIAL IN THE TRADITIONS OF
THE COMMON LAW AND THE CONSTITUTION.  IF THE TRIBUNAL ITSELF WAS NOT
STRANGE TO THEM OTHERWISE, IT WAS IN ITS FORMS AND MODES OF PROCEDURE,
IN THE CHARACTER AND SUBSTANCE OF THE EVIDENCE IT RECEIVED, IN THE
DENIAL OF ALL MEANS TO THE ACCUSED AND HIS COUNSEL FOR TESTING THE
EVIDENCE, IN THE BREVITY AND AMBIGUITY OF ITS FINDINGS MADE UPON SUCH A
MASS OF MATERIAL AND, AS WILL APPEAR, IN THE DENIAL OF ANY REASONABLE
OPPORTUNITY FOR PREPARATION OF THE DEFENSE.  BECAUSE THIS LAST
DEPRIVATION NOT ONLY IS IMPORTANT IN ITSELF, BUT IS CLOSELY RELATED TO
THE DEPARTURES FROM ALL LIMITATIONS UPON THE CHARACTER OF AND MODES OF
MAKING THE PROOF, IT WILL BE CONSIDERED BEFORE TURNING TO THE IMPORTANT
LEGAL QUESTIONS RELATING TO WHETHER ALL THESE VIOLATIONS OF OUR
TRADITIONS CAN BE BRUSHED ASIDE AS NOT FORBIDDEN BY THE VALID ACTS OF
CONGRESS, TREATIES AND THE CONSTITUTION, IN THAT ORDER.  IF ALL THESE
TRADITIONS CAN BE SO PUT AWAY, THEN INDEED WILL WE HAVE ENTERED UPON A
NEW BUT FOREBODING ERA OF LAW. 

         III. 

              DENIAL OF OPPORTUNITY TO PREPARE DEFENSE. 

PETITIONER SURRENDERED SEPTEMBER 3, 1945, AND WAS INTERNED AS A
PRISONER OF WAR IN CONFORMITY WITH ARTICLE 9 OF THE GENEVA CONVENTION
OF JULY 27, 1929.  FN22  HE WAS SERVED WITH THE CHARGE ON SEPTEMBER 25
AND PUT IN CONFINEMENT AS AN ACCUSED WAR CRIMINAL.  ON OCTOBER 8 HE WAS
ARRAIGNED AND PLEADED NOT GUILTY.  ON OCTOBER 29 THE TRIAL BEGAN AND IT
CONTINUED UNTIL DECEMBER 7, WHEN SENTENCE WAS PRONOUNCED, EXACTLY FOUR
YEARS ALMOST TO THE HOUR FROM THE ATTACK ON PEARL HARBOR. 

ON THE DAY OF ARRAIGNMENT, OCTOBER 8, THREE WEEKS BEFORE THE TRIAL
BEGAN, PETITIONER WAS SERVED WITH A BILL OF PARTICULARS SPECIFYING 64
ITEMS SETTING FORTH A VAST NUMBER OF ATROCITIES AND CRIMES ALLEGEDLY
COMMITTED BY TROOPS UNDER HIS COMMAND.  FN23  THE SIX OFFICERS
APPOINTED AS DEFENSE COUNSEL THUS HAD THREE WEEKS, IT IS TRUE AT THE
PROSECUTION'S SUGGESTION A WEEK LONGER THAN THEY SOUGHT AT FIRST, TO
INVESTIGATE AND PREPARE TO MEET ALL THESE ITEMS AND THE LARGE NUMBER OF
INCIDENTS THEY EMBODIED, MANY OF WHICH HAD OCCURRED IN DISTANT ISLANDS
OF THE ARCHIPELAGO.  THERE IS SOME QUESTION WHETHER THEY THEN
ANTICIPATED THE FULL SCOPE AND CHARACTER OF THE CHARGE OR THE EVIDENCE
THEY WOULD HAVE TO MEET.  BUT, AS WILL APPEAR, THEY WORKED NIGHT AND
DAY AT THE TASK.  EVEN SO IT WOULD HAVE BEEN IMPOSSIBLE TO DO
THOROUGHLY, HAD NOTHING MORE OCCURRED. 

BUT THERE WAS MORE.  ON THE FIRST DAY OF THE TRIAL, OCTOBER 29, THE
PROSECUTION FILED A SUPPLEMENTAL BILL OF PARTICULARS, CONTAINING 59
MORE SPECIFICATIONS OF THE SAME GENERAL CHARACTER, INVOLVING PERHAPS AS
MANY INCIDENTS OCCURRING OVER AN EQUALLY WIDE AREA.  FN24  A COPY HAD
BEEN GIVEN THE DEFENSE THREE DAYS EARLIER.  ONE ITEM, NO. 89, CHARGED
THAT AMERICAN SOLDIERS, PRISONERS OF WAR, HAD BEEN TRIED AND EXECUTED
WITHOUT NOTICE HAVING BEEN GIVEN TO THE PROTECTING POWER OF THE UNITED
STATES IN ACCORDANCE WITH THE REQUIREMENTS OF THE GENEVA CONVENTION,
WHICH IT IS NOW ARGUED, STRANGELY, THE UNITED STATES WAS NOT REQUIRED
TO OBSERVE AS TO PETITIONER'S TRIAL.  FN25 

BUT WHAT IS MORE IMPORTANT IS THAT DEFENSE COUNSEL, AS THEY FELT WAS
THEIR DUTY, AT ONCE MOVED FOR A CONTINUANCE.  FN26  THE APPLICATION WAS
DENIED.  HOWEVER THE COMMISSION INDICATED THAT IF, AT THE END OF THE
PROSECUTION'S PRESENTATION CONCERNING THE ORIGINAL BILL, COUNSEL SHOULD
"BELIEVE THEY REQUIRE ADDITIONAL TIME  ..., THE COMMISSION WILL
CONSIDER SUCH A MOTION AT THAT TIME," BEFORE TAKING UP THE ITEMS OF THE
SUPPLEMENTAL BILL.  COUNSEL AGAIN INDICATED, WITHOUT OTHER RESULT, THAT
TIME WAS DESIRED AT ONCE "AS MUCH, IF NOT MORE" TO PREPARE FOR CROSS
EXAMINATION "AS THE PROSECUTION'S CASE GOES IN" AS TO PREPARE
AFFIRMATIVE DEFENSE. 

ON THE NEXT DAY, OCTOBER 30, THE COMMISSION INTERRUPTED THE
PROSECUTOR TO SAY IT WOULD NOT THEN LISTEN TO TESTIMONY OR DISCUSSION
UPON THE SUPPLEMENTAL BILL.  AFTER COLLOQUY IT ADHERED TO ITS PRIOR
RULING AND, IN RESPONSE TO INQUIRY FROM THE PROSECUTION, THE DEFENSE
INDICATED IT WOULD REQUIRE TWO WEEKS BEFORE IT COULD PROCEED ON THE
SUPPLEMENTAL BILL.  ON NOVEMBER 1 THE COMMISSION RULED IT WOULD NOT
RECEIVE AFFIDAVITS WITHOUT CORROBORATION BY WITNESSES ON ANY
SPECIFICATION, A RULING REVERSED FOUR DAYS LATER. 

ON NOVEMBER 2, AFTER THE COMMISSION HAD RECEIVED AN AFFIRMATIVE
ANSWER TO ITS INQUIRY WHETHER THE DEFENSE WAS PREPARED TO PROCEED WITH
AN ITEM IN THE SUPPLEMENTAL BILL WHICH THE PROSECUTION PROPOSED TO
PROVE, IT ANNOUNCED:  "HEREAFTER, THEN, UNLESS THERE IS NO OBJECTION BY
THE DEFENSE, THE COMMISSION WILL ASSUME THAT YOU ARE PREPARED TO
PROCEED WITH ANY ITEMS IN THE SUPPLEMENTAL BILL."  ON NOVEMBER 8, THE
QUESTION AROSE AGAIN UPON THE PROSECUTION'S INQUIRY AS TO WHEN THE
DEFENSE WOULD BE READY TO PROCEED ON THE SUPPLEMENTAL BILL, THE
PROSECUTOR ADDING:  "FRANKLY, SIR, IT TOOK THE WAR CRIMES COMMISSION
SOME THREE MONTHS TO INVESTIGATE THESE MATTERS AND I CANNOT CONCEIVE OF
THE DEFENSE UNDERTAKING A SIMILAR INVESTIGATION WITH ANY LESS PERIOD OF
TIME."  STATING IT REALIZED "THE TREMENDOUS TASK WHICH WE PLACED UPON
THE DEFENSE" AND ITS "DETERMINATION TO GIVE THEM THE TIME THEY
REQUIRE," THE COMMISSION AGAIN ADHERED TO ITS RULING OF OCTOBER 29. 

FOUR DAYS LATER THE COMMISSION ANNOUNCED IT WOULD GRANT A CONTINUANCE
"ONLY FOR THE MOST URGENT AND UNAVOIDABLE REASONS."  FN27 

ON NOVEMBER 20, WHEN THE PROSECUTION RESTED, SENIOR DEFENSE COUNSEL
MOVED FOR A REASONABLE CONTINUANCE, RECALLING THE COMMISSION'S
INDICATION THAT IT WOULD THEN CONSIDER SUCH A MOTION AND STATING THAT
SINCE OCTOBER 29 THE DEFENSE HAD BEEN "WORKING DAY AND NIGHT," WITH "NO
TIME WHATSOEVER TO PREPARE ANY AFFIRMATIVE DEFENSE," SINCE COUNSEL HAD
BEEN FULLY OCCUPIED TRYING "TO KEEP UP WITH THAT NEW BILL OF
PARTICULARS." 

THE COMMISSION THEREUPON RETIRED FOR DELIBERATION AND, ON RESUMING
ITS SESSIONS SHORTLY, DENIED THE MOTION.  COUNSEL THEN ASKED FOR "A
SHORT RECESS OF A DAY."  THE COMMISSION SUGGESTED A RECESS UNTIL 1:30
IN THE AFTERNOON.  COUNSEL RESPONDED THIS WOULD NOT SUFFICE.  THE
COMMISSION STATED IT FELT "THAT THE DEFENSE SHOULD BE PREPARED AT LEAST
ON ITS OPENING STATEMENT," TO WHICH SENIOR COUNSEL ANSWERED:  "WE
HAVEN'T HAD TIME TO DO THAT, SIR."  THE COMMISSION THEN RECESSED UNTIL
8:30 THE FOLLOWING MORNING. 

FURTHER COMMENT IS HARDLY REQUIRED.  OBVIOUSLY THE BURDEN PLACED UPON
THE DEFENSE, IN THE SHORT TIME ALLOWED FOR PREPARATION ON THE ORIGINAL
BILL, WAS NOT ONLY "TREMENDOUS."  IN VIEW OF ALL THE FACTS, IT WAS AN
IMPOSSIBLE ONE, EVEN THOUGH THE TIME ALLOWED WAS A WEEK LONGER THAN
ASKED.  BUT THE GROSSER VICE WAS LATER WHEN THE BURDEN WAS MORE THAN
DOUBLED BY SERVICE OF THE SUPPLEMENTAL BILL ON THE EVE OF TRIAL, A
PROCEDURE WHICH, TAKEN IN CONNECTION WITH THE CONSISTENT DENIALS OF
CONTINUANCE AND THE COMMISSION'S LATER REVERSAL OF ITS RULINGS
FAVORABLE TO THE DEFENSE, WAS WHOLLY ARBITRARY, CUTTING OFF THE LAST
VESTIGE OF ADEQUATE CHANCE TO PREPARE DEFENSE AND IMPOSING A BURDEN THE
MOST ABLE COUNSEL COULD NOT BEAR.  THIS SORT OF THING HAS NO PLACE IN
OUR SYSTEM OF JUSTICE, CIVIL OR MILITARY.  WITHOUT MORE, THIS WIDE
DEPARTURE FROM THE MOST ELEMENTARY PRINCIPLES OF FAIRNESS VITIATED THE
PROCEEDING.  WHEN ADDED TO THE OTHER DENIALS OF FUNDAMENTAL RIGHT
SKETCHED ABOVE, IT DEPRIVED THE PROCEEDING OF ANY SEMBLANCE OF TRIAL AS
WE KNOW THAT INSTITUTION. 

                  IV.

                APPLICABILITY OF THE ARTICLES OF WAR. 

THE COURT'S OPINION PUTS THE PROCEEDING AND THE PETITIONER, IN SO FAR
AS ANY RIGHTS RELATING TO HIS TRIAL AND CONVICTION ARE CONCERNED,
WHOLLY OUTSIDE THE ARTICLES OF WAR.  IN VIEW OF WHAT HAS TAKEN PLACE, I
THINK THE DECISION'S NECESSARY EFFECT IS ALSO TO PLACE THEM ENTIRELY
BEYOND LIMITATION AND PROTECTION, RESPECTIVELY, BY THE CONSTITUTION.  I
DISAGREE AS TO BOTH CONCLUSIONS OR EFFECTS. 

THE COURT RULES THAT CONGRESS HAS NOT MADE ARTICLES 25 AND 38
APPLICABLE TO THIS PROCEEDING.  I THINK IT HAS MADE THEM APPLICABLE TO
THIS AND ALL OTHER MILITARY COMMISSIONS OR TRIBUNALS.  IF SO, THE
COMMISSION NOT ONLY LOST ALL POWER TO PUNISH PETITIONER BY WHAT
OCCURRED IN THE PROCEEDINGS.  IT NEVER ACQUIRED JURISDICTION TO TRY
HIM.  FOR THE DIRECTIVE BY WHICH IT WAS CONSTITUTED, IN THE PROVISIONS
OF SEC. 16,  FN28  WAS SQUARELY IN CONFLICT WITH ARTICLES 25 AND 38 OF
THE ARTICLES OF WAR  FN29  AND THEREFORE WAS VOID. 

ARTICLE 25 ALLOWS READING OF DEPOSITIONS IN EVIDENCE, UNDER
PRESCRIBED CONDITIONS, IN THE PLAINEST TERMS "BEFORE ANY MILITARY COURT
OR COMMISSION IN ANY CASE NOT CAPITAL," PROVIDING, HOWEVER, THAT
"TESTIMONY BY DEPOSITION MAY BE ADDUCED FOR THE DEFENSE IN CAPITAL
CASES."  THIS LANGUAGE CLEARLY AND BROADLY COVERS EVERY KIND OF
MILITARY TRIBUNAL, WHETHER "COURT" OR "COMMISSION."  IT COVERS ALL
CAPITAL CASES.  IT MAKES NO EXCEPTION OR DISTINCTION FOR ANY ACCUSED. 

ARTICLE 38 AUTHORIZES THE PRESIDENT BY REGULATIONS TO PRESCRIBE
PROCEDURE, INCLUDING MODES OF PROOF, EVEN MORE ALL-INCLUSIVELY IF
POSSIBLE, "IN CASES BEFORE COURTS-MARTIAL, COURTS OF INQUIRY, MILITARY
COMMISSIONS, AND OTHER MILITARY TRIBUNALS."  LANGUAGE COULD NOT BE MORE
BROADLY INCLUSIVE.  NO EXCEPTIONS ARE MENTIONED OR SUGGESTED, WHETHER
OF TRIBUNALS OR OF ACCUSED PERSONS.  EVERY KIND OF MILITARY BODY FOR
PERFORMING THE FUNCTION OF TRIAL IS COVERED.  THAT IS CLEAR FROM THE
FACE OF THE ARTICLE. 

ARTICLE 38 MOREOVER LIMITS THE PRESIDENT'S POWER.  HE IS SO FAR AS
PRACTICABLE TO PRESCRIBE "THE RULES OF EVIDENCE GENERALLY RECOGNIZED IN
THE TRIAL OF CRIMINAL CASES IN THE DISTRICT COURTS OF THE UNITED
STATES," A CLEAR MANDATE THAT CONGRESS INTENDED ALL MILITARY TRIALS TO
CONFORM AS CLOSELY AS POSSIBLE TO OUR CUSTOMARY PROCEDURAL AND
EVIDENTIARY PROTECTIONS, CONSTITUTIONAL AND STATUTORY, FOR ACCUSED
PERSONS.  BUT THERE ARE ALSO TWO UNQUALIFIED LIMITATIONS, ONE "THAT
NOTHING CONTRARY TO OR INCONSISTENT WITH THESE ARTICLES (SPECIFICALLY
HERE ARTICLE 25) SHALL BE SO PRESCRIBED"; THE OTHER "THAT ALL RULES
MADE IN PURSUANCE OF THIS ARTICLE SHALL BE LAID BEFORE THE CONGRESS
ANNUALLY." 

NOTWITHSTANDING THESE BROAD TERMS THE COURT, RESTING CHIEFLY ON
ARTICLE 2, CONCLUDES THE PETITIONER WAS NOT AMONG THE PERSONS THERE
DECLARED TO BE SUBJECT TO THE ARTICLES OF WAR AND THEREFORE THE
COMMISSION WHICH TRIES HIM IS NOT SUBJECT TO THEM.  THAT ARTICLE DOES
NOT COVER PRISONERS OF WAR OR WAR CRIMINALS.  NEITHER DOES IT COVER
CIVILIANS IN OCCUPIED TERRITORIES, THEATRES OF MILITARY OPERATIONS OR
OTHER PLACES UNDER MILITARY JURISDICTION WITHIN OR WITHOUT THE UNITED
STATES OR TERRITORY SUBJECT TO ITS SOVEREIGNTY, WHETHER THEY BE
NEUTRALS OR ENEMY ALIENS, EVEN CITIZENS OF THE UNITED STATES, UNLESS
THEY ARE CONNECTED IN THE MANNER ARTICLE 2 PRESCRIBES WITH OUR ARMED
FORCES, EXCLUSIVE OF THE NAVY. 

THE LOGIC WHICH EXCLUDES PETITIONER ON THE BASIS THAT PRISONERS OF
WAR ARE NOT MENTIONED IN ARTICLE 2 WOULD EXCLUDE ALL THESE.  I STRONGLY
DOUBT THE COURT WOULD GO SO FAR, IF PRESENTED WITH A TRIAL LIKE THIS IN
SUCH INSTANCES.  NOR DOES IT FOLLOW NECESSARILY THAT, BECAUSE SOME
PERSONS MAY NOT BE MENTIONED IN ARTICLE 2, THEY CAN BE TRIED WITHOUT
REGARD TO ANY OF THE LIMITATIONS PLACED BY ANY OF THE OTHER ARTICLES
UPON MILITARY TRIBUNALS. 

ARTICLE 2 IN DEFINING PERSONS "SUBJECT TO THE ARTICLES OF WAR" WAS, I
THINK, SPECIFYING THOSE TO WHOM THE ARTICLES IN GENERAL WERE
APPLICABLE.  AND THERE IS NO DISPUTE THAT MOST OF THE ARTICLES ARE NOT
APPLICABLE TO THE PETITIONER.  IT DOES NOT FOLLOW, HOWEVER, AND ARTICLE
2 DOES NOT PROVIDE, THAT THERE MAY NOT BE IN THE ARTICLES SPECIFIC
PROVISIONS COVERING PERSONS OTHER THAN THOSE SPECIFIED IN ARTICLE 2. 
HAD IT SO PROVIDED, ARTICLE 2 WOULD HAVE BEEN CONTRADICTORY NOT ONLY OF
ARTICLES 25 AND 38 BUT ALSO OF ARTICLE 15 AMONG OTHERS.    IN 1916,
WHEN THE LAST GENERAL REVISION OF THE ARTICLES OF WAR TOOK PLACE,  FN30
FOR THE FIRST TIME CERTAIN OF THE ARTICLES WERE SPECIFICALLY MADE
APPLICABLE TO MILITARY COMMISSIONS.  UNTIL THEN THEY HAD APPLIED ONLY
TO COURTS-MARTIAL.  THERE WERE TWO PURPOSES, THE FIRST TO GIVE
STATUTORY RECOGNITION TO THE MILITARY COMMISSION WITHOUT LOSS OF PRIOR
JURISDICTION AND THE SECOND TO GIVE THOSE TRIED BEFORE MILITARY
COMMISSIONS SOME OF THE MORE IMPORTANT PROTECTIONS AFFORDED PERSONS
TRIED BY COURTS-MARTIAL. 

IN ORDER TO EFFECTUATE THE FIRST PURPOSE, THE ARMY PROPOSED ARTICLE
15.  FN31  TO EFFECTUATE THE SECOND PURPOSE, ARTICLES 25 AND 38 AND
SEVERAL OTHERS WERE PROPOSED.  FN32  BUT AS THE COURT NOW CONSTRUES THE
ARTICLES OF WAR, THEY HAVE NO APPLICATION TO MILITARY COMMISSIONS
BEFORE WHICH ALLEGED OFFENDERS AGAINST THE LAWS OF WAR ARE TRIED.  WHAT
THE COURT HOLDS IN EFFECT IS THAT THERE ARE TWO TYPES OF MILITARY
COMMISSION, ONE TO TRY OFFENSES WHICH MIGHT BE COGNIZABLE BY A COURT
MARTIAL, THE OTHER TO TRY WAR CRIMES, AND THAT CONGRESS INTENDED THE
ARTICLES OF WAR REFERRING IN TERMS TO MILITARY COMMISSIONS WITHOUT
EXCEPTION TO BE APPLICABLE ONLY TO THE FIRST TYPE. 

THIS MISCONCEIVES BOTH THE HISTORY OF MILITARY COMMISSIONS AND THE
LEGISLATIVE HISTORY OF THE ARTICLES OF WAR.  THERE IS ONLY ONE KIND OF
MILITARY COMMISSION.  IT IS TRUE, AS THE HISTORY NOTED SHOWS, THAT WHAT
IS NOW CALLED "THE MILITARY COMMISSION" AROSE FROM TWO SEPARATE
MILITARY COURTS INSTITUTED DURING THE MEXICAN WAR.  THE FIRST MILITARY
COURT, CALLED BY GENERAL SCOTT A "MILITARY COMMISSION," WAS GIVEN
JURISDICTION IN MEXICO OVER CRIMINAL OFFENSES OF THE CLASS COGNIZABLE
BY CIVIL COURTS IN TIME OF PEACE.  THE OTHER MILITARY COURT, CALLED A
"COUNCIL OF WAR," WAS GIVEN JURISDICTION OVER OFFENSES AGAINST THE LAWS
OF WAR.  WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED., REPRINTED
1920)*  1298-1299.  DURING THE CIVIL WAR "THE TWO JURISDICTIONS OF THE
EARLIER COMMISSION AND COUNCIL RESPECTIVELY  ...  (WERE) UNITED IN THE
...  WAR-COURT, FOR WHICH THE GENERAL DESIGNATION OF 'MILITARY
COMMISSION' WAS RETAINED AS THE PREFERABLE ONE."  WINTHROP, SUPRA, AT*
1299.  SINCE THAT TIME THERE HAS BEEN ONLY ONE TYPE OF MILITARY
TRIBUNAL CALLED THE MILITARY COMMISSION, THOUGH IT MAY EXERCISE
DIFFERENT KINDS OF JURISDICTION,  FN33  ACCORDING TO THE CIRCUMSTANCES
UNDER WHICH AND PURPOSES FOR WHICH IT IS CONVENED. 

THE TESTIMONY OF GENERAL CROWDER IS PERHAPS THE MOST AUTHORITATIVE
EVIDENCE OF WHAT WAS INTENDED BY THE LEGISLATION, FOR HE WAS ITS MOST
ACTIVE OFFICIAL SPONSOR, SPENDING YEARS IN SECURING ITS ADOPTION AND
REVISION.  ARTICLES 15, 25 AND 38 PARTICULARLY ARE TRACEABLE TO HIS
EFFORTS.  HIS CONCERN TO SECURE STATUTORY RECOGNITION FOR MILITARY
COMMISSIONS WAS EQUALLED BY HIS CONCERN THAT THE STATUTORY PROVISIONS
GIVING THIS SHOULD NOT RESTRICT THEIR PREEXISTING JURISDICTION.  HE DID
NOT WISH BY SECURING ADDITIONAL JURISDICTION, OVERLAPPING PARTIALLY
THAT OF THE COURT-MARTIAL, TO SURRENDER OTHER.  HENCE ARTICLE 15.  THAT
ARTICLE HAD ONE PURPOSE AND ONE ONLY.  IT WAS TO MAKE SURE THAT THE
ACQUISITION OF PARTIALLY CONCURRENT JURISDICTION WITH COURTS-MARTIAL
SHOULD NOT CAUSE LOSS OF ANY OTHER.  AND IT WAS JURISDICTION, NOT
PROCEDURE, WHICH WAS COVERED BY OTHER ARTICLES, WITH WHICH HE AND
CONGRESS WERE CONCERNED IN THAT ARTICLE.  IT DISCLOSES NO PURPOSE TO
DEAL IN ANY WAY WITH PROCEDURE OR TO QUALIFY ARTICLES 25 AND 38.  AND
IT IS CLEAR THAT GENERAL CROWDER AT ALL TIMES REGARDED ALL MILITARY
COMMISSIONS AS BEING GOVERNED BY THE IDENTICAL PROCEDURE.  IN FACT, SO
FAR AS ARTICLES 25 AND 38 ARE CONCERNED, THIS SEEMS OBVIOUS FOR ALL
TYPES OF MILITARY TRIBUNALS.  THE SAME WOULD APPEAR TO BE TRUE OF OTHER
ARTICLES ALSO, E.G., 24(PROHIBITING COMPULSORY SELF-INCRIMINATION), 26,
27, 32(CONTEMPTS), ALL EXCEPT THE LAST DEALING WITH PROCEDURAL
MATTERS. 

ARTICLE 12 IS ESPECIALLY SIGNIFICANT.  IT EMPOWERS GENERAL COURTS
MARTIAL TO TRY TWO CLASSES OF OFFENDERS:  (1) "ANY PERSON SUBJECT TO
MILITARY LAW," UNDER THE DEFINITION OF ARTICLE 2, FOR ANY OFFENSE "MADE
PUNISHABLE BY THESE ARTICLES"; (2) "AND ANY OTHER PERSON WHO BY THE LAW
OF WAR IS SUBJECT TO TRIAL BY MILITARY TRIBUNALS," NOT COVERED BY THE
TERMS OF ARTICLE 2. 

ARTICLE 12 THUS, IN CONFORMITY WITH ARTICLE 15, GIVES THE GENERAL
COURT-MARTIAL CONCURRENT JURISDICTION OF WAR CRIMES AND WAR CRIMINALS
WITH MILITARY COMMISSIONS.  NEITHER IT NOR ANY OTHER ARTICLE STATES OR
INDICATES THERE ARE TO BE TWO KINDS OF GENERAL COURTS-MARTIAL FOR
TRYING WAR CRIMES; YET THIS IS THE NECESSARY RESULT OF THE COURT'S
DECISION, UNLESS IN THE ALTERNATIVE THAT WOULD BE TO IMPLY THAT IN
EXERCISING SUCH JURISDICTION THERE IS ONLY ONE KIND OF GENERAL COURT
MARTIAL, BUT THERE ARE TWO OR MORE KINDS OF MILITARY COMMISSION, WITH
WHOLLY DIFFERENT PROCEDURES AND WITH THE RESULT THAT "THE COMMANDER IN
THE FIELD" WILL NOT BE FREE TO DETERMINE WHETHER GENERAL COURT-MARTIAL
OR MILITARY COMMISSION SHALL BE USED AS THE CIRCUMSTANCES MAY DICTATE,
BUT MUST GOVERN HIS CHOICE BY THE KIND OF PROCEDURE HE WISHES TO HAVE
EMPLOYED. 

THE ONLY REASONABLE AND, I THINK, POSSIBLE CONCLUSION TO DRAW FROM
THE ARTICLES IS THAT THE ARTICLES WHICH ARE IN TERMS APPLICABLE TO
MILITARY COMMISSIONS ARE SO UNIFORMLY AND THOSE APPLICABLE TO BOTH SUCH
COMMISSIONS AND TO COURTS-MARTIAL WHEN EXERCISING JURISDICTION OVER
OFFENDERS AGAINST THE LAWS OF WAR LIKEWISE ARE UNIFORMLY APPLICABLE. 
AND NOT DIVERSELY ACCORDING TO THE PERSON OR OFFENSE BEING TRIED. 

NOT ONLY THE FACE OF THE ARTICLES, BUT SPECIFIC STATEMENTS IN GENERAL
CROWDER'S TESTIMONY SUPPORT THIS VIEW.  THUS IN THE PORTION QUOTED
ABOVE  FN34  FROM HIS 1916 STATEMENT, AFTER STATING EXPRESSLY THE
PURPOSE OF ARTICLE 15 TO PRESERVE UNIMPAIRED THE MILITARY COMMISSION'S
JURISDICTION, AND TO MAKE IT CONCURRENT WITH THAT OF COURTS-MARTIAL IN
SO FAR AS THE TWO WOULD OVERLAP, "SO THAT THE MILITARY COMMANDER IN THE
FIELD IN TIME OF WAR WILL BE AT LIBERTY TO EMPLOY EITHER FORM OF COURT
THAT HAPPENS TO BE CONVENIENT," HE WENT ON TO SAY:  "BOTH CLASSES OF
COURTS HAVE THE SAME PROCEDURE," A STATEMENT SO UNEQUIVOCAL AS TO LEAVE
NO ROOM FOR QUESTION.  AND HIS QUOTATION FROM WINTHROP SUPPORTS HIS
STATEMENT, NAMELY:  "ITS (I.E., THE MILITARY COMMISSION'S) COMPOSITION,
CONSTITUTION AND PROCEDURE FOLLOW THE ANALOGY OF COURTS-MARTIAL." 

AT NO POINT IN THE TESTIMONY IS THERE SUGGESTION THAT THERE ARE TWO
TYPES OF MILITARY COMMISSION, ONE BOUND BY THE PROCEDURAL PROVISIONS OF
THE ARTICLES, THE OTHER WHOLLY FREE FROM THEIR RESTRAINTS OR, AS THE
COURT STRANGELY PUTS THE MATTER, THAT THERE IS ONLY ONE KIND OF
COMMISSION, BUT THAT IT IS BOUND OR NOT BOUND BY THE ARTICLES
APPLICABLE IN TERMS, DEPENDING UPON WHO IS BEING TRIED AND FOR WHAT
OFFENSE; FOR THAT VERY DIFFERENCE MAKES THE DIFFERENCE BETWEEN ONE AND
TWO.  THE HISTORY AND THE DISCUSSION SHOW CONCLUSIVELY THAT GENERAL
CROWDER WISHED TO SECURE AND CONGRESS INTENDED TO GIVE STATUTORY
RECOGNITION TO ALL FORMS OF MILITARY TRIBUNALS; TO ENABLE COMMANDING
OFFICERS IN THE FIELD TO USE EITHER COURT-MARTIAL OR MILITARY
COMMISSION AS CONVENIENCE MIGHT DICTATE, THUS BROADENING TO THIS EXTENT
THE LATTER'S JURISDICTION AND UTILITY; BUT AT THE SAME TIME TO PRESERVE
ITS FULL PREEXISTING JURISDICTION; AND ALSO TO LAY DOWN IDENTICAL
PROVISIONS FOR GOVERNING OR PROVIDING FOR THE GOVERNMENT OF THE
PROCEDURE AND RULES OF EVIDENCE OF EVERY TYPE OF MILITARY TRIBUNAL,
WHEREVER AND HOWEVER CONSTITUTED.  FN35 

FINALLY, UNLESS CONGRESS WAS LEGISLATING WITH REGARD TO ALL MILITARY
COMMISSIONS, ARTICLE 38, WHICH GIVES THE PRESIDENT THE POWER TO
"PRESCRIBE THE PROCEDURE, INCLUDING MODES OF PROOF, IN CASES BEFORE
COURTS-MARTIAL, COURTS OF INQUIRY, MILITARY COMMISSIONS, AND OTHER
MILITARY TRIBUNALS," TAKES ON A RATHER SENSELESS MEANING; FOR THE
PRESIDENT WOULD HAVE SUCH POWER ONLY WITH RESPECT TO THOSE MILITARY
COMMISSIONS EXERCISING CONCURRENT JURISDICTION WITH COURTS-MARTIAL. 

ALL THIS SEEMS SO OBVIOUS, UPON A MERE READING OF THE ARTICLES
THEMSELVES AND THE LEGISLATIVE HISTORY, AS NOT TO REQUIRE
DEMONSTRATION.  AND ALL THIS CONGRESS KNEW, AS THAT HISTORY SHOWS.  IN
THE FACE OF THAT SHOWING I CANNOT ACCEPT THE COURT'S HIGHLY STRAINED
CONSTRUCTION, FIRST, BECAUSE I THINK IT IS IN PLAIN CONTRADICTION OF
THE FACTS DISCLOSED BY THE HISTORY OF ARTICLES 15, 25 AND 38 AS WELL AS
THEIR LANGUAGE; AND ALSO BECAUSE THAT CONSTRUCTION DEFEATS AT LEAST TWO
OF THE ENDS GENERAL CROWDER HAD IN MIND, NAMELY, TO SECURE STATUTORY
RECOGNITION FOR EVERY FORM OF MILITARY TRIBUNAL AND TO PROVIDE FOR THEM
A BASIC UNIFORM MODE OF PROCEDURE OR METHOD OF PROVIDING FOR THEIR
PROCEDURE. 

ACCORDINGLY, I THINK ARTICLES 25 AND 38 ARE APPLICABLE TO THIS
PROCEEDING; THAT THE PROVISIONS OF THE GOVERNING DIRECTIVE IN SEC. 16
ARE IN DIRECT CONFLICT WITH THOSE ARTICLES; AND FOR THAT REASON THE
COMMISSION WAS INVALIDLY CONSTITUTED, WAS WITHOUT JURISDICTION, AND ITS
SENTENCE IS THEREFORE VOID. 

                     V.

                    THE GENEVA CONVENTION OF 1929. 

IF THE PROVISIONS OF ARTICLES 25 AND 38 WERE NOT APPLICABLE TO THE
PROCEEDING BY THEIR OWN FORCE AS ACTS OF CONGRESS, I THINK THEY WOULD
STILL BE MADE APPLICABLE BY VIRTUE OF THE TERMS OF THE GENEVA
CONVENTION OF 1929, IN PARTICULAR ARTICLE 63.  AND IN OTHER RESPECTS,
IN MY OPINION, THE PETITIONER'S TRIAL WAS NOT IN ACCORD WITH THAT
TREATY, NAMELY, WITH ARTICLE 60. 

THE COURT DOES NOT HOLD THAT THE GENEVA CONVENTION IS NOT BINDING
UPON THE UNITED STATES AND NO SUCH CONTENTION HAS BEEN MADE IN THIS
CASE.  FN36  IT RELIES ON OTHER ARGUMENTS TO SHOW THAT ARTICLE 60,
WHICH PROVIDES THAT THE PROTECTING POWER SHALL BE NOTIFIED IN ADVANCE
OF A JUDICIAL PROCEEDING DIRECTED AGAINST A PRISONER OF WAR, AND
ARTICLE 63, WHICH PROVIDES THAT A PRISONER OF WAR MAY BE TRIED ONLY BY
THE SAME COURTS AND ACCORDING TO THE SAME PROCEDURE AS IN THE CASE OF
PERSONS BELONGING TO THE ARMED FORCES OF THE DETAINING POWER, ARE NOT
PROPERLY INVOKED BY THE PETITIONER.  BEFORE CONSIDERING THE COURT'S
VIEW THAT THESE ARTICLES ARE NOT APPLICABLE TO THIS PROCEEDING BY THEIR
TERMS, IT MAY BE NOTED THAT ON HIS SURRENDER PETITIONER WAS INTERNED IN
CONFORMITY WITH ARTICLE 9 OF THIS CONVENTION. 

THE CHIEF ARGUMENT IS THAT ARTICLES 60 AND 63 HAVE REFERENCE ONLY TO
OFFENSES COMMITTED BY A PRISONER OF WAR WHILE A PRISONER OF WAR AND NOT
TO VIOLATIONS OF THE LAWS OF WAR COMMITTED WHILE A COMBATANT.  THIS
CONCLUSION IS DERIVED FROM THE SETTING IN WHICH THESE ARTICLES ARE
PLACED.  I DO NOT AGREE THAT THE CONTEXT GIVES ANY SUPPORT TO THIS
ARGUMENT.  THE ARGUMENT IS IN ESSENCE OF THE SAME TYPE AS THE ARGUMENT
THE COURT EMPLOYS TO NULLIFY THE APPLICATION OF ARTICLES 25 AND 38 OF
THE ARTICLES OF WAR BY RESTRICTING THEIR OWN BROADER COVERAGE BY
REFERENCE TO ARTICLE 2.  FOR REASONS SET FORTH IN THE MARGIN,  FN37  I
THINK IT EQUALLY INVALID HERE. 

NEITHER ARTICLE 60 NOR ARTICLE 63 CONTAINS SUCH A RESTRICTION OF
MEANING AS THE COURT READS INTO THEM.  FN38  IN THE ABSENCE OF ANY SUCH
LIMITATION, IT WOULD SEEM THAT THEY WERE INTENDED TO COVER ALL JUDICIAL
PROCEEDINGS, WHETHER INSTITUTED FOR CRIMES ALLEGEDLY COMMITTED BEFORE
CAPTURE OR LATER.  POLICY SUPPORTS THIS VIEW.  FOR SUCH A CONSTRUCTION
IS REQUIRED FOR THE SECURITY OF OUR OWN SOLDIERS, TAKEN PRISONER, AS
MUCH AS FOR THAT OF PRISONERS WE TAKE.  AND THE OPPOSITE ONE LEAVES
PRISONERS OF WAR OPEN TO ANY FORM OF TRIAL AND PUNISHMENT FOR OFFENSES
AGAINST THE LAWS OF WAR THEIR CAPTORS MAY WISH TO USE, WHILE
SAFEGUARDING THEM, TO THE EXTENT OF THE TREATY LIMITATIONS, IN CASES OF
DISCIPLINARY OFFENSE.  THIS, IN MANY INSTANCES, WOULD BE TO MAKE THE
TREATY STRAIN AT A GNAT AND SWALLOW THE CAMEL. 

THE UNITED STATES HAS COMPLIED WITH NEITHER OF THESE ARTICLES.  IT
DID NOT NOTIFY THE PROTECTING POWER OF JAPAN IN ADVANCE OF TRIAL AS
ARTICLE 60 REQUIRES IT TO DO, ALTHOUGH THE SUPPLEMENTAL BILL CHARGES
THE SAME FAILURE TO PETITIONER IN ITEM 89.  FN39  IT IS SAID THAT,
ALTHOUGH THIS MAY BE TRUE, THE PROCEEDING IS NOT THEREBY INVALIDATED. 
THE ARGUMENT IS THAT OUR NONCOMPLIANCE MERELY GIVES JAPAN A RIGHT OF
INDEMNITY AGAINST US AND THAT ARTICLE 60 WAS NOT INTENDED TO GIVE
YAMASHITA ANY PERSONAL RIGHTS.  I CANNOT AGREE.  THE TREATIES MADE BY
THE UNITED STATES ARE BY THE CONSTITUTION MADE THE SUPREME LAW OF THE
LAND.  IN THE ABSENCE OF SOMETHING IN THE TREATY INDICATING THAT ITS
PROVISIONS WERE NOT INTENDED TO BE ENFORCED, UPON BREACH, BY MORE THAN
SUBSEQUENT INDEMNIFICATION, IT IS, AS I CONCEIVE IT, THE DUTY OF THE
COURTS OF THIS COUNTRY TO INSURE THE NATION'S COMPLIANCE WITH SUCH
TREATIES, EXCEPT IN THE CASE OF POLITICAL QUESTIONS.  THIS IS
ESPECIALLY TRUE WHERE THE TREATY HAS PROVISIONS - SUCH AS ARTICLE 60 -
FOR THE PROTECTION OF A MAN BEING TRIED FOR AN OFFENSE THE PUNISHMENT
FOR WHICH IS DEATH; FOR TO SAY THAT IT WAS INTENDED TO PROVIDE FOR
ENFORCEMENT OF SUCH PROVISIONS SOLELY BY CLAIM, AFTER BREACH, OF
INDEMNITY WOULD BE IN MANY INSTANCES, ESPECIALLY THOSE INVOLVING TRIAL
OF NATIONALS OF A DEFEATED NATION BY A CONQUERING ONE, TO DEPRIVE THE
ARTICLES OF ALL FORCE.  EXECUTED MEN ARE NOT MUCH AIDED BY POSTWAR
CLAIMS FOR INDEMNITY.  I DO NOT THINK THE ADHERING POWERS' PURPOSE WAS
TO PROVIDE ONLY FOR SUCH INEFFECTIVE RELIEF. 

FINALLY, THE GOVERNMENT HAS ARGUED THAT ARTICLE 60 HAS NO APPLICATION
AFTER THE ACTUAL CESSATION OF HOSTILITIES, AS THERE IS NO LONGER ANY
NEED FOR AN INTERVENING POWER BETWEEN THE TWO BELLIGERENTS.  THE
PREMISE IS THAT JAPAN NO LONGER NEEDS SWITZERLAND TO INTERVENE WITH THE
UNITED STATES TO PROTECT THE RIGHTS OF JAPANESE NATIONALS, SINCE JAPAN
IS NOW IN DIRECT COMMUNICATION WITH THIS GOVERNMENT.  THIS OF COURSE IS
IN CONTRADICTION OF THE GOVERNMENT'S THEORY, IN OTHER CONNECTIONS, THAT
THE WAR IS NOT OVER AND MILITARY NECESSITY STILL REQUIRES USE OF ALL
THE POWER NECESSARY FOR ACTUAL COMBAT.    FURTHERMORE THE PREMISE
OVERLOOKS ALL THE REALITIES OF THE SITUATION.  JAPAN IS A DEFEATED
POWER, HAVING SURRENDERED, IF NOT UNCONDITIONALLY THEN UNDER THE MOST
SEVERE CONDITIONS.  HER TERRITORY IS OCCUPIED BY AMERICAN MILITARY
FORCES.  SHE IS SCARCELY IN A POSITION TO BARGAIN WITH US OR TO ASSERT
HER RIGHTS.  NOR CAN HER NATIONALS.  SHE NO LONGER HOLDS AMERICAN
PRISONERS OF WAR.  FN40  CERTAINLY, IF THERE WAS THE NEED OF AN
INDEPENDENT NEUTRAL TO PROTECT HER NATIONALS DURING THE WAR, THERE IS
MORE NOW.  IN MY OPINION THE FAILURE TO GIVE THE NOTICE REQUIRED BY
ARTICLE 60 IS ONLY ANOTHER INSTANCE OF THE COMMISSION'S FAILURE TO
OBSERVE THE OBLIGATIONS OF OUR LAW. 

WHAT IS MORE IMPORTANT, THERE WAS NO COMPLIANCE WITH ARTICLE 63 OF
THE SAME CONVENTION.  YAMASHITA WAS NOT TRIED "ACCORDING TO THE SAME
PROCEDURE AS IN THE CASE OF PERSONS BELONGING TO THE ARMED FORCES OF
THE DETAINING POWER."  HAD ONE OF OUR SOLDIERS OR OFFICERS BEEN TRIED
FOR ALLEGED WAR CRIMES, HE WOULD HAVE BEEN ENTITLED TO THE BENEFITS OF
THE ARTICLES OF WAR.  I THINK THAT YAMASHITA WAS EQUALLY ENTITLED TO
THE SAME PROTECTION.  IN ANY EVENT, HE WAS ENTITLED TO THEIR BENEFITS
UNDER THE PROVISIONS OF ARTICLE 63 OF THE GENEVA CONVENTION.  THOSE
BENEFITS HE DID NOT RECEIVE.  ACCORDINGLY, HIS TRIAL WAS IN VIOLATION
OF THE CONVENTION. 

                               VI.

  THE FIFTH AMENDMENT. 

WHOLLY APART FROM THE VIOLATION OF THE ARTICLES OF WAR AND OF THE
GENEVA CONVENTION, I AM COMPLETELY UNABLE TO ACCEPT OR TO UNDERSTAND
THE COURT'S RULING CONCERNING THE APPLICABILITY OF THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT TO THIS CASE.  NOT HERETOFORE HAS IT BEEN
HELD THAT ANY HUMAN BEING IS BEYOND ITS UNIVERSALLY PROTECTING SPREAD
IN THE GUARANTY OF A FAIR TRIAL IN THE MOST FUNDAMENTAL SENSE.  THAT
DOOR IS DANGEROUS TO OPEN.  I WILL HAVE NO PART IN OPENING IT.  FOR
ONCE IT IS AJAR, EVEN FOR ENEMY BELLIGERENTS, IT CAN BE PUSHED BACK
WIDER FOR OTHERS, PERHAPS ULTIMATELY FOR ALL. 

THE COURT DOES NOT DECLARE EXPRESSLY THAT PETITIONER AS AN ENEMY
BELLIGERENT HAS NO CONSTITUTIONAL RIGHTS, A RULING I COULD UNDERSTAND
BUT NOT ACCEPT.  NEITHER DOES IT AFFIRM THAT HE HAS SOME, IF BUT
LITTLE, CONSTITUTIONAL PROTECTION.  NOR DOES THE COURT DEFEND WHAT WAS
DONE.  I THINK THE EFFECT OF WHAT IT DOES IS IN SUBSTANCE TO DENY HIM
ALL SUCH SAFEGUARDS.  AND THIS IS THE GREAT ISSUE IN THE CAUSE. 

FOR IT IS EXACTLY HERE WE ENTER WHOLLY UNTRODDEN GROUND.  THE SAFE
SIGNPOSTS TO THE REAR ARE NOT IN THE SUM OF PROTECTIONS SURROUNDING
JURY TRIALS OR ANY OTHER PROCEEDING KNOWN TO OUR LAW.  NOR IS THE
ESSENCE OF THE FIFTH AMENDMENT'S ELEMENTARY PROTECTION COMPREHENDED IN
ANY SINGLE ONE OF OUR TIME-HONORED SPECIFIC CONSTITUTIONAL SAFEGUARDS
IN TRIAL, THOUGH THERE ARE SOME WITHOUT WHICH THE WORDS "FAIR TRIAL"
AND ALL THEY CONNOTE BECOME A MOCKERY. 

APART FROM A TRIBUNAL CONCERNED THAT THE LAW AS APPLIED SHALL BE AN
INSTRUMENT OF JUSTICE, ALBEIT STERN IN MEASURE TO THE GUILT
ESTABLISHED, THE HEART OF THE SECURITY LIES IN TWO THINGS.  ONE IS THAT
CONVICTION SHALL NOT REST IN ANY ESSENTIAL PART UPON UNCHECKED RUMOR,
REPORT, OR THE RESULTS OF THE PROSECUTION'S EX PARTE INVESTIGATIONS,
BUT SHALL STAND ON PROVEN FACT; THE OTHER, CORRELATIVE, LIES IN A FAIR
CHANCE TO DEFEND.  THIS EMBRACES AT THE LEAST THE RIGHTS TO KNOW WITH
REASONABLE CLARITY IN ADVANCE OF THE TRIAL THE EXACT NATURE OF THE
OFFENSE WITH WHICH ONE IS TO BE CHARGED; TO HAVE REASONABLE TIME FOR
PREPARING TO MEET THE CHARGE AND TO HAVE THE AID OF COUNSEL IN DOING
SO, AS ALSO IN THE TRIAL ITSELF; AND IF, DURING ITS COURSE, ONE IS
TAKEN BY SURPRISE, THROUGH THE INJECTION OF NEW CHARGES OR REVERSAL OF
RULINGS WHICH BRINGS FORTH NEW MASSES OF EVIDENCE, THEN TO HAVE FURTHER
REASONABLE TIME FOR MEETING THE UNEXPECTED SHIFT. 

SO FAR AS I KNOW, IT HAS NOT YET BEEN HELD THAT ANY TRIBUNAL IN OUR
SYSTEM, OF WHATEVER CHARACTER, IS FREE TO RECEIVE SUCH EVIDENCE "AS IN
ITS OPINION WOULD BE OF ASSISTANCE IN PROVING OR DISPROVING THE
CHARGE," OR, AGAIN AS IN ITS OPINION, "WOULD HAVE PROBATIVE VALUE IN
THE MIND OF A REASONABLE MAN"; AND, HAVING RECEIVED WHAT IN ITS
UNLIMITED DISCRETION IT REGARDS AS SUFFICIENT, IS ALSO FREE TO
DETERMINE WHAT WEIGHT MAY BE GIVEN TO THE EVIDENCE RECEIVED WITHOUT
RESTRAINT.  FN41 

WHEN TO THIS FATAL DEFECT IN THE DIRECTIVE, HOWEVER INNOCENTLY MADE,
ARE ADDED THE BROAD DEPARTURES FROM THE FUNDAMENTALS OF FAIR PLAY IN
THE PROOF AND IN THE RIGHT TO DEFEND WHICH OCCURRED THROUGHOUT THE
PROCEEDING, THERE CAN BE NO ACCOMMODATION WITH THE DUE PROCESS OF LAW
WHICH THE FIFTH AMENDMENT DEMANDS. 

ALL THIS THE COURT PUTS TO ONE SIDE WITH THE SHORT ASSERTION THAT NO
QUESTION OF DUE PROCESS UNDER THE FIFTH AMENDMENT OR JURISDICTION
REVIEWABLE HERE IS PRESENTED.  I DO NOT THINK THIS MEETS THE ISSUE,
STANDING ALONE OR IN CONJUNCTION WITH THE SUGGESTION WHICH FOLLOWS THAT
THE COURT GIVES NO INTIMATION ONE WAY OR THE OTHER CONCERNING WHAT
FIFTH AMENDMENT DUE PROCESS MIGHT REQUIRE IN OTHER SITUATIONS. 

IT MAY BE APPROPRIATE TO ADD HERE THAT, ALTHOUGH WITHOUT DOUBT THE
DIRECTIVE WAS DRAWN IN GOOD FAITH IN THE BELIEF THAT IT WOULD EXPEDITE
THE TRIAL AND THAT ENEMY BELLIGERENTS IN PETITIONER'S POSITION WERE NOT
ENTITLED TO MORE, THAT STATE OF MIND AND PURPOSE CANNOT CURE THE
NULLIFICATION OF BASIC CONSTITUTIONAL STANDARDS WHICH HAS TAKEN PLACE. 

IT IS NOT NECESSARY TO RECAPITULATE.  THE DIFFERENCE BETWEEN THE
COURT'S VIEW OF THIS PROCEEDING AND MY OWN COMES DOWN IN THE END TO THE
VIEW, ON THE ONE HAND, THAT THERE IS NO LAW RESTRICTIVE UPON THESE
PROCEEDINGS OTHER THAN WHATEVER RULES AND REGULATIONS MAY BE PRESCRIBED
FOR THEIR GOVERNMENT BY THE EXECUTIVE AUTHORITY OR THE MILITARY AND, ON
THE OTHER HAND, THAT THE PROVISIONS OF THE ARTICLES OF WAR, OF THE
GENEVA CONVENTION AND THE FIFTH AMENDMENT APPLY. 

I CANNOT ACCEPT THE VIEW THAT ANYWHERE IN OUR SYSTEM RESIDES OR LURKS
A POWER SO UNRESTRAINED TO DEAL WITH ANY HUMAN BEING THROUGH ANY
PROCESS OF TRIAL.  WHAT MILITARY AGENCIES OR AUTHORITIES MAY DO WITH
OUR ENEMIES IN BATTLE OR INVASION, APART FROM PROCEEDINGS IN THE NATURE
OF TRIAL AND SOME SEMBLANCE OF JUDICIAL ACTION, IS BESIDE THE POINT. 
NOR HAS ANY HUMAN BEING HERETOFORE BEEN HELD TO BE WHOLLY BEYOND
ELEMENTARY PROCEDURAL PROTECTION BY THE FIFTH AMENDMENT.  I CANNOT
CONSENT TO EVEN IMPLIED DEPARTURE FROM THAT GREAT ABSOLUTE. 

IT WAS A GREAT PATRIOT WHO SAID: 

"HE THAT WOULD MAKE HIS OWN LIBERTY SECURE MUST GUARD EVEN HIS ENEMY
FROM OPPRESSION; FOR IF HE VIOLATES THIS DUTY HE ESTABLISHES A
PRECEDENT THAT WILL REACH TO HIMSELF."  FN42 

FN1  CUMMINGS V. MISSOURI, 4 WALL.  277; KRING V. MISSOURI, 107 U.S.
221. 

FN2  ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, 83-84; UNITED
STATES V. COHEN GROCERY CO., 255 U.S. 81; CF. SCREWS V. UNITED STATES,
325 U.S. 91.  SEE NOTE 17 AND TEXT. 

FN3  HAWK V. OLSON, 326 U.S. 271; SNYDER V. MASSACHUSETTS, 291 U.S.
97, 105:  "WHAT MAY NOT BE TAKEN AWAY IS NOTICE OF THE CHARGE AND AN
ADEQUATE OPPORTUNITY TO BE HEARD IN DEFENSE OF IT."  SEE PART III. 

FN4  THE COMMISSION'S FINDINGS STATE:  "WE HAVE RECEIVED FOR ANALYSIS
AND EVALUATION 423 EXHIBITS CONSISTING OF OFFICIAL DOCUMENTS OF THE
UNITED STATES ARMY, THE UNITED STATES STATE DEPARTMENT, AND THE
COMMONWEALTH OF THE PHILIPPINES; AFFIDAVITS; CAPTURED ENEMY DOCUMENTS
OR TRANSLATIONS THEREOF; DIARIES TAKEN FROM JAPANESE PERSONNEL,
PHOTOGRAPHS, MOTION PICTURE FILMS, AND MANILA NEWSPAPERS."  SEE NOTES
19 AND 20. 

CONCERNING THE SPECIFIC NATURE OF THESE ELEMENTS IN THE PROOF, THE
ISSUES TO WHICH THEY WERE DIRECTED, AND THEIR PREJUDICIAL EFFECTS, SEE
TEXT INFRA AND NOTES IN PART II. 

FN5  QUEEN V. HEPBURN, 7 CRANCH 290; DONNELLY V. UNITED STATES, 228
U.S. 243, 273.  SEE PART II; NOTE 21. 

FN6  MOTES V. UNITED STATES, 178 U.S. 458; PAONI V. UNITED STATES,
281 F. 801.  SEE PARTS II AND III. 

FN7  SEE PART II AT NOTES 10, 19; PART III. 

FN8  THE LINE OF AUTHORIZATION WITHIN THE MILITARY HIERARCHY EXTENDED
FROM THE PRESIDENT, THROUGH THE JOINT CHIEFS OF STAFF AND GENERAL
MACARTHUR, TO GENERAL STYER, WHOSE ORDER OF SEPTEMBER 25TH AND OTHERS
WERE MADE PURSUANT TO AND IN CONFORMITY WITH GENERAL MACARTHUR'S
DIRECTIVE.  THE CHARGE WAS PREPARED BY THE JUDGE ADVOCATE GENERAL'S
DEPARTMENT OF THE ARMY.  THERE IS NO DISPUTE CONCERNING THESE FACTS OR
THAT THE DIRECTIVE WAS BINDING ON GENERAL STYER AND THE COMMISSION,
THOUGH IT IS ARGUED HIS OWN AUTHORITY AS AREA COMMANDING GENERAL WAS
INDEPENDENTLY SUFFICIENT TO SUSTAIN WHAT WAS DONE. 

FN9  "16.  EVIDENCE.  - A. THE COMMISSION SHALL ADMIT SUCH EVIDENCE
AS IN ITS OPINION WOULD BE OF ASSISTANCE IN PROVING OR DISPROVING THE
CHARGE, OR SUCH AS IN THE COMMISSION'S OPINION WOULD HAVE PROBATIVE
VALUE IN THE MIND OF A REASONABLE MAN.  IN PARTICULAR, AND WITHOUT
LIMITING IN ANY WAY THE SCOPE OF THE FOREGOING GENERAL RULES, THE
FOLLOWING EVIDENCE MAY BE ADMITTED: 

(1)  ANY DOCUMENT WHICH APPEARS TO THE COMMISSION TO HAVE BEEN SIGNED
OR ISSUED OFFICIALLY BY ANY OFFICER, DEPARTMENT, AGENCY, OR MEMBER OF
THE ARMED FORCES OF ANY GOVERNMENT, WITHOUT PROOF OF THE SIGNATURE OR
OF THE ISSUANCE OF THE DOCUMENT. 

(2)  ANY REPORT WHICH APPEARS TO THE COMMISSION TO HAVE BEEN SIGNED
OR ISSUED BY THE INTERNATIONAL RED CROSS OR A MEMBER THEREOF, OR BY A
MEDICAL DOCTOR OR ANY MEDICAL SERVICE PERSONNEL, OR BY AN INVESTIGATOR
OR INTELLIGENCE OFFICER, OR BY ANY OTHER PERSON WHOM THE COMMISSION
FINDS TO HAVE BEEN ACTING IN THE COURSE OF HIS DUTY WHEN MAKING THE
REPORT. 

(3)  AFFIDAVITS, DEPOSITIONS, OR OTHER STATEMENTS TAKEN BY AN OFFICER
DETAILED FOR THAT PURPOSE BY MILITARY AUTHORITY. 

(4)  ANY DIARY, LETTER OR OTHER DOCUMENT APPEARING TO THE COMMISSION
TO CONTAIN INFORMATION RELATING TO THE CHARGE. 

(5)  A COPY OF ANY DOCUMENT OR OTHER SECONDARY EVIDENCE OF ITS
CONTENTS, IF THE COMMISSION BELIEVES THAT THE ORIGINAL IS NOT AVAILABLE
OR CANNOT BE PRODUCED WITHOUT UNDUE DELAY...." 

FN10  IN ONE INSTANCE THE PRESIDENT OF THE COMMISSION SAID: "THE
RULES AND REGULATIONS WHICH GUIDE THIS COMMISSION ARE BINDING UPON THE
COMMISSION AND AGENCIES PROVIDED TO ASSIST THE COMMISSION....  WE HAVE
BEEN AUTHORIZED TO RECEIVE AND WEIGH SUCH EVIDENCE AS WE CAN CONSIDER
TO HAVE PROBATIVE VALUE, AND FURTHER COMMENTS BY THE DEFENSE ON THE
RIGHT WHICH WE HAVE TO ACCEPT THIS EVIDENCE IS DECIDEDLY OUT OF
ORDER."  BUT SEE NOTE 19. 

FN11  CF. TEXT INFRA AT NOTE 19 CONCERNING THE PREJUDICIAL CHARACTER
OF THE EVIDENCE. 

FN12  NOTE 4. 

FN13  NAMELY, "(1) STARVATION, EXECUTION OR MASSACRE WITHOUT TRIAL
AND MALADMINISTRATION GENERALLY OF CIVILIAN INTERNEES AND PRISONERS OF
WAR; (2) TORTURE, RAPE, MURDER AND MASS EXECUTION OF VERY LARGE NUMBERS
OF RESIDENTS OF THE PHILIPPINES, INCLUDING WOMEN AND CHILDREN AND
MEMBERS OF RELIGIOUS ORDERS, BY STARVATION, BEHEADING, BAYONETING,
CLUBBING, HANGING, BURNING ALIVE, AND DESTRUCTION BY EXPLOSIVES; (3)
BURNING AND DEMOLITION WITHOUT ADEQUATE MILITARY NECESSITY OF LARGE
NUMBERS OF HOMES, PLACES OF BUSINESS, PLACES OF RELIGIOUS WORSHIP,
HOSPITALS, PUBLIC BUILDINGS, AND EDUCATIONAL INSTITUTIONS.  IN POINT OF
TIME, THE OFFENSES EXTENDED THROUGHOUT THE PERIOD THE ACCUSED WAS IN
COMMAND OF JAPANESE TROOPS IN THE PHILIPPINES.  IN POINT OF AREA, THE
CRIMES EXTENDED THROUGHOUT THE PHILIPPINE ARCHIPELAGO, ALTHOUGH BY FAR
THE MOST OF THE INCREDIBLE ACTS OCCURRED ON LUZON." 

FN14  CF. NOTE 13. 

FN15  IN ADDITION THE FINDINGS SET FORTH THAT CAPTURED ORDERS OF
SUBORDINATE OFFICERS GAVE PROOF THAT "THEY, AT LEAST," ORDERED ACTS
"LEADING DIRECTLY TO" ATROCITIES; THAT "THE PROOF OFFERED TO THE
COMMISSION ALLEGED CRIMINAL NEGLECT  ...  AS WELL AS COMPLETE FAILURE
BY THE HIGHER ECHELONS OF COMMAND TO DETECT AND PREVENT CREUL AND
INHUMAN TREATMENT ACCORDED BY LOCAL COMMANDERS AND GUARDS"; AND THAT,
ALTHOUGH THE "DEFENSE ESTABLISHED THE DIFFICULTIES FACED BY THE
ACCUSED" WITH SPECIAL REFERENCE AMONG OTHER THINGS TO THE DISCIPLINE
AND MORALE OF HIS TROOPS UNDER THE "SWIFT AND OVERPOWERING ADVANCE OF
AMERICAN FORCES," AND NOTWITHSTANDING HE HAD STOUTLY MAINTAINED HIS
COMPLETE IGNORANCE OF THE CRIMES, STILL HE WAS AN OFFICER OF LONG
EXPERIENCE; HIS ASSIGNMENT WAS ONE OF BROAD RESPONSIBILITY; IT WAS HIS
DUTY "TO DISCOVER AND CONTROL" CRIMES BY HIS TROOPS, IF WIDESPREAD, AND
THEREFORE 

"THE COMMISSION CONCLUDES:  (1) THAT A SERIES OF ATROCITIES AND OTHER
HIGH CRIMES HAVE BEEN COMMITTED BY MEMBERS OF THE JAPANESE ARMED FORCES
UNDER YOUR COMMAND AGAINST PEOPLE OF THE UNITED STATES, THEIR ALLIES
AND DEPENDENCIES THROUGHOUT THE PHILIPPINE ISLANDS; THAT THEY WERE NOT
SPORADIC IN NATURE BUT IN MANY CASES WERE METHODICALLY SUPERVISED BY
JAPANESE OFFICERS AND NONCOMMISSIONED OFFICERS; (2) THAT DURING THE
PERIOD IN QUESTION YOU FAILED TO PROVIDE EFFECTIVE CONTROL OF YOUR
TROOPS AS WAS REQUIRED BY THE CIRCUMSTANCES. 

"ACCORDINGLY UPON SECRET WRITTEN BALLOT, TWO-THIRDS OR MORE OF THE
MEMBERS CONCURRING, THE COMMISSION FINDS YOU GUILTY AS CHARGED AND
SENTENCES YOU TO DEATH BY HANGING." 

FN16  SEE NOTE 15. 

FN17  THE CHARGE, SET FORTH AT THE END OF THIS NOTE, IS CONSISTENT
WITH EITHER THEORY - OR BOTH - AND THUS AMBIGUOUS, AS WERE THE
FINDINGS.  SEE NOTE 15.  THE ONLY WORD IMPLYING KNOWLEDGE WAS
"PERMITTING."  IF "WILFULLY" IS ESSENTIAL TO CONSTITUTE A CRIME OR
CHARGE OF ONE, OTHERWISE SUBJECT TO THE OBJECTION OF "VAGUENESS," CF.
SCREWS V. UNITED STATES, 325 U.S. 91, IT WOULD SEEM THAT "PERMITTING"
ALONE WOULD HARDLY BE SUFFICIENT TO CHARGE "WILFUL AND INTENTIONAL"
ACTION OR OMISSION; AND, IF TAKEN TO BE SUFFICIENT TO CHARGE KNOWLEDGE,
IT WOULD FOLLOW NECESSARILY THAT THE CHARGE ITSELF WAS NOT DRAWN TO
STATE AND WAS INSUFFICIENT TO SUPPORT A FINDING OF MERE FAILURE TO
DETECT OR DISCOVER THE CRIMINAL CONDUCT OF OTHERS.    AT THE MOST,
"PERMITTING" COULD CHARGE KNOWLEDGE ONLY BY INFERENCE OR IMPLICATION. 
AND REASONABLY THE WORD COULD BE TAKEN IN THE CONTEXT OF THE CHARGE TO
MEAN "ALLOWING" OR "NOT PREVENTING," A MEANING CONSISTENT WITH ABSENCE
OF KNOWLEDGE AND MERE FAILURE TO DISCOVER.  IN CAPITAL CASES SUCH
AMBIGUITY IS WHOLLY OUT OF PLACE.  THE PROOF WAS EQUALLY AMBIGUOUS IN
THE SAME RESPECT, SO FAR AS WE HAVE BEEN INFORMED, AND SO, TO REPEAT,
WERE THE FINDINGS.  THE USE OF "WILFULLY," EVEN QUALIFIED BY A "MUST
HAVE," ONE TIME ONLY IN THE FINDINGS HARDLY CAN SUPPLY THE ABSENCE OF
THAT OR AN EQUIVALENT WORD OR LANGUAGE IN THE CHARGE OR IN THE PROOF TO
SUPPORT THAT ESSENTIAL ELEMENT IN THE CRIME. 

THE CHARGE WAS AS FOLLOWS:  "TOMOYUKI YAMASHITA, GENERAL IMPERIAL
JAPANESE ARMY, BETWEEN 9 OCTOBER 1944 AND 2 SEPTEMBER 1945, AT MANILA
AND AT OTHER PLACES IN THE PHILIPPINE ISLANDS, WHILE COMMANDER OF ARMED
FORCES OF JAPAN AT WAR WITH THE UNITED STATES OF AMERICA AND ITS
ALLIES, UNLAWFULLY DISREGARDED AND FAILED TO DISCHARGE HIS DUTY AS
COMMANDER TO CONTROL THE OPERATIONS OF THE MEMBERS OF HIS COMMAND,
PERMITTING THEM TO COMMIT BRUTAL ATROCITIES AND OTHER HIGH CRIMES
AGAINST PEOPLE OF THE UNITED STATES AND OF ITS ALLIES AND DEPENDENCIES,
PARTICULARLY THE PHILIPPINES; AND HE, GENERAL TOMOYUKI YAMASHITA,
THEREBY VIOLATED THE LAWS OF WAR." 

FN18  CF. TEXT INFRA PART IV. 

FN19  ON NOVEMBER 1, EARLY IN THE TRIAL, THE PRESIDENT OF THE
COMMISSION STATED:  "I THINK THE PROSECUTION SHOULD CONSIDER THE
DESIRABILITY OF STRIKING CERTAIN ITEMS.  THE COMMISSION FEELS THAT
THERE MUST BE WITNESSES INTRODUCED ON EACH OF THE SPECIFICATIONS OR
ITEMS.  IT HAS NO OBJECTION TO CONSIDERING AFFIDAVITS, BUT IT IS
UNWILLING TO FORM AN OPINION OF A PARTICULAR ITEM BASED SOLELY ON AN
AFFIDAVIT.  THEREFORE, UNTIL EVIDENCE IS INTRODUCED, THESE PARTICULAR
EXHIBITS ARE REJECTED." 

LATER EVIDENCE OF THE EXCLUDED TYPE WAS OFFERED, TO INTRODUCTION OF
WHICH THE DEFENSE OBJECTED ON VARIOUS GROUNDS INCLUDING THE PRIOR
RULING.  AT THE PROSECUTION'S URGING THE COMMISSION WITHDREW TO
DELIBERATE.  LATER IT ANNOUNCED THAT "AFTER FURTHER CONSIDERATION, THE
COMMISSION REVERSES THAT RULING (OF NOVEMBER 1) AND AFFIRMS ITS
PREROGATIVE OF RECEIVING AND CONSIDERING AFFIDAVITS OR DEPOSITIONS, IF
IT CHOOSES TO DO SO, FOR WHATEVER PROBATIVE VALUE THE COMMISSION
BELIEVES THEY MAY HAVE, WITHOUT REGARD TO THE PRESENTATION OF SOME
PARTIALLY CORROBORATIVE ORAL TESTIMONY."  IT THEN ADDED:  "THE
COMMISSION DIRECTS THE PROSECUTION AGAIN TO INTRODUCE THE AFFIDAVITS OR
DEPOSITIONS THEN IN QUESTION, AND OTHER DOCUMENTS OF A SIMILAR NATURE
WHICH THE PROSECUTION STATED HAD BEEN PREPARED FOR INTRODUCTION." 

THEREAFTER THIS TYPE OF EVIDENCE WAS CONSISTENTLY RECEIVED AND AGAIN,
BY THE UNDISPUTED STATEMENT OF COUNSEL, AS THE SOLE PROOF OF MANY OF
THE SPECIFICATIONS OF THE BILLS, A PROCEDURE WHICH THEY CHARACTERIZE
CORRECTLY IN MY VIEW AS HAVING "IN EFFECT, STRIPPED THE PROCEEDING OF
ALL SEMBLANCE OF A TRIAL AND CONVERTED IT INTO AN EX PARTE
INVESTIGATION." 

FN20  THIS PERHAPS CONSISTED IN THE SHOWING OF THE SO-CALLED
"PROPAGANDA" FILM, "ORDERS FROM TOKYO," PORTRAYING SCENES OF BATTLE
DESTRUCTION IN MANILA, WHICH COUNSEL SAY "WAS NOT IN ITSELF SERIOUSLY
OBJECTIONABLE."  HIGHLY OBJECTIONABLE, INFLAMMATORY AND PREJUDICIAL,
HOWEVER, WAS THE ACCOMPANYING SOUND TRACK WITH COMMENT THAT THE FILM
WAS "EVIDENCE WHICH WILL CONVICT," MENTIONING PETITIONER SPECIFICALLY
BY NAME. 

FN21  INNUMERABLE INSTANCES OF HEARSAY, ONCE OR SEVERAL TIMES
REMOVED, RELATING TO ALL MANNER OF INCIDENTS, RUMORS, REPORTS, ETC.,
WERE AMONG THESE.  MANY INSTANCES, TOO, ARE SHOWN OF THE USE OF OPINION
EVIDENCE AND CONCLUSIONS OF GUILT, INCLUDING REPORTS MADE AFTER EX
PARTE INVESTIGATIONS BY THE WAR CRIMES BRANCH OF THE JUDGE ADVOCATE
GENERAL'S DEPARTMENT, WHICH IT WAS AND IS URGED HAD THE EFFECT OF
"PUTTING THE PROSECUTION ON THE WITNESS STAND" AND OF USURPING THE
COMMISSION'S FUNCTION AS JUDGE OF THE LAW AND THE FACTS.  IT IS SAID
ALSO THAT SOME OF THE REPORTS WERE RECEIVED AS THE SOLE PROOF OF SOME
OF THE SPECIFICATIONS. 

FN22  ALSO WITH PARAGRAPH 82 OF THE RULES OF LAND WARFARE. 

FN23  TYPICAL OF THE ITEMS ARE ALLEGATIONS THAT MEMBERS OF THE ARMED
FORCES OF JAPAN UNDER THE COMMAND OF THE ACCUSED COMMITTED THE ACTS
"DURING THE MONTHS OF OCTOBER, NOVEMBER AND DECEMBER 1944(OF) BRUTALLY
MISTREATING AND TORTURING NUMEROUS UNARMED NONCOMBATANT CIVILIANS AT
THE JAPANESE MILITARY POLICE HEADQUARTERS LOCATED AT CORTABITARTE AND
MABINI STREETS, MANILA" AND "ON ABOUT 19 FEBRUARY 1945, IN THE TOWN OF
CUENCA, BATANGAS PROVINCE, BRUTALLY MISTREATING, MASSACRING AND KILLING
JOSE M. LAGUO, ESTEBAN MAGSAMDOL, JOSE LANBO, FELISA APUNTAR, ELFIDIO
LUNAR, VICTORIANA RAMO, AND 978 OTHER PERSONS, ALL UNARMED NONCOMBATANT
CIVILIANS, PILLAGING AND UNNECESSARY, DELIBERATELY AND WANTONLY
DEVASTATING, BURNING AND DESTROYING LARGE AREAS OF THAT TOWN." 

FN24  THE SUPPLEMENTAL BILL CONTAINS ALLEGATIONS SIMILAR TO THOSE SET
OUT IN THE ORIGINAL BILL.  SEE NOTE 23.  FOR EXAMPLE, IT CHARGED THAT
MEMBERS OF THE ARMED FORCES OF JAPAN UNDER THE COMMAND OF THE ACCUSED
"DURING THE PERIOD FROM 9 OCTOBER 1944 TO ABOUT 1 FEBRUARY 1945, AT
CAVITE CITY, IMUS, AND ELSEWHERE IN CAVITE PROVINCE," WERE PERMITTED TO
COMMIT THE ACTS OF "BRUTALLY MISTREATING, TORTURING, AND KILLING OR
ATTEMPTING TO KILL, WITHOUT CAUSE OR TRIAL, UNARMED NONCOMBATANT
CIVILIANS." 

FN25  SEE NOTE 39 AND TEXT, PART V. 

FN26  IN SUPPORT OF THE MOTION COUNSEL INDICATED SURPRISE BY SAYING
THAT, THOUGH IT WAS ASSUMED TWO OR THREE NEW SPECIFICATIONS MIGHT BE
ADDED, THERE HAD BEEN NO EXPECTATION OF 59 "ABOUT ENTIRELY DIFFERENT
PERSONS AND TIMES."  THE STATEMENT CONTINUED: 

"WE HAVE WORKED EARNESTLY SEVEN DAYS A WEEK IN ORDER TO PREPARE THE
DEFENSE ON 64 SPECIFICATIONS.  AND WHEN I SAY 'PREPARE THE DEFENSE,'
SIR, I DO NOT MEAN MERELY AN AFFIRMATIVE DEFENSE, BUT TO ACQUAINT
OURSELVES WITH THE FACTS SO THAT WE COULD PROPERLY CROSS EXAMINE THE
PROSECUTION'S WITNESSES. 

"...  'IN ADVANCE OF TRIAL' MEANS:  SUFFICIENT TIME TO ALLOW THE
DEFENSE A CHANCE TO PREPARE ITS DEFENSE. 

"WE EARNESTLY STATE THAT WE MUST HAVE THIS TIME IN ORDER TO
ADEQUATELY PREPARE A DEFENSE.  I MIGHT ADD, SIR, WE THINK THAT THIS IS
IMPORTANT TO THE ACCUSED, BUT FAR MORE IMPORTANT THAN ANY RIGHTS OF
THIS ACCUSED, WE BELIEVE, IS THE PROPOSITION THAT THIS COMMISSION
SHOULD NOT DEVIATE FROM A FUNDAMENTAL AMERICAN CONCEPT OF FAIRNESS
..." 

FN27  THE COMMISSION WENT ON TO QUESTION THE NEED FOR ALL OF THE SIX
OFFICERS REPRESENTING THE DEFENSE TO BE PRESENT DURING PRESENTATION OF
ALL THE CASE, SUGGESTED ONE OR TWO WOULD BE ADEQUATE AND OTHERS "SHOULD
BE OUT OF THE COURTROOM" ENGAGED IN OTHER MATTERS AND STRONGLY
SUGGESTED BRINGING IN ADDITIONAL COUNSEL IN THE MIDST OF THE TRIAL, ALL
TO THE END THAT "NEED TO REQUEST A CONTINUANCE MAY NOT ARISE." 

FN28  SEE NOTE 9. 

FN29  ARTICLE 25 IS AS FOLLOWS:  "A DULY AUTHENTICATED DEPOSITION
TAKEN UPON REASONABLE NOTICE TO THE OPPOSITE PARTY MAY BE READ IN
EVIDENCE BEFORE ANY MILITARY COURT OR COMMISSION IN ANY CASE NOT
CAPITAL, OR IN ANY PROCEEDING BEFORE A COURT OF INQUIRY OR A MILITARY
BOARD, IF SUCH DEPOSITION BE TAKEN WHEN THE WITNESS RESIDES, IS FOUND,
OR IS ABOUT TO GO BEYOND THE STATE, TERRITORY, OR DISTRICT IN WHICH THE
COURT, COMMISSION, OR BOARD IS ORDERED TO SIT, OR BEYOND THE DISTANCE
OF ONE HUNDRED MILES FROM THE PLACE OF TRIAL OR HEARING, OR WHEN IT
APPEARS TO THE SATISFACTION OF THE COURT, COMMISSION, BOARD, OR
APPOINTING AUTHORITY THAT THE WITNESS, BY REASON OF AGE, SICKNESS,
BODILY INFIRMITY, IMPRISONMENT, OR OTHER REASONABLE CAUSE, IS UNABLE TO
APPEAR AND TESTIFY IN PERSON AT THE PLACE OF TRIAL OR HEARING:
PROVIDED, THAT TESTIMONY BY DEPOSITION MAY BE ADDUCED FOR THE DEFENSE
IN CAPITAL CASES."  U.S.C. SEC. 1496. 

ARTICLE 38 READS:  "THE PRESIDENT MAY, BY REGULATIONS, WHICH HE MAY
MODIFY FROM TIME TO TIME, PRESCRIBE THE PROCEDURE, INCLUDING MODES OF
PROOF, IN CASES BEFORE COURTS-MARTIAL, COURTS OF INQUIRY, MILITARY
COMMISSIONS, AND OTHER MILITARY TRIBUNALS, WHICH REGULATIONS SHALL
INSOFAR AS HE SHALL DEEM PRACTICABLE, APPLY THE RULES OF EVIDENCE
GENERALLY RECOGNIZED IN THE TRIAL OF CRIMINAL CASES IN THE DISTRICT
COURTS OF THE UNITED STATES:  PROVIDED, THAT NOTHING CONTRARY TO OR
INCONSISTENT WITH THESE ARTICLES SHALL BE SO PRESCRIBED:  PROVIDED
FURTHER, THAT ALL RULES MADE IN PURSUANCE OF THIS ARTICLE SHALL BE LAID
BEFORE THE CONGRESS ANNUALLY."  10 U.S.C. SEC. 1509. 

FN30  ANOTHER REVISION OF THE ARTICLES OF WAR TOOK PLACE IN 1920.  AT
THIS TIME ARTICLE 15 WAS SLIGHTLY AMENDED. 

IN 1916 ARTICLE 15 WAS ENACTED TO READ:  "THE PROVISIONS OF THESE
ARTICLES CONFERRING JURISDICTION UPON COURTS-MARTIAL SHALL NOT BE
CONSTRUED AS DEPRIVING MILITARY COMMISSIONS, PROVOST COURTS, OR OTHER
MILITARY TRIBUNALS OF CONCURRENT JURISDICTION IN RESPECT OF OFFENDERS
OR OFFENSES THAT BY THE LAW OF WAR MAY BE LAWFULLY TRIABLE BY SUCH
MILITARY COMMISSIONS, PROVOST COURTS, OR OTHER MILITARY TRIBUNALS." 

THE 1920 AMENDMENT PUT IN THE WORDS "BY STATUTE OR" BEFORE THE WORDS
"BY THE LAW OF WAR" AND OMITTED THE WORD "LAWFULLY." 

FN31  SPEAKING AT THE HEARINGS BEFORE THE COMMITTEE ON MILITARY
AFFAIRS, HOUSE OF REPRESENTATIVES, 62D CONG., 2D SESS., PRINTED AS AN
APPENDIX TO S. REP. 229, 63D CONG., 2D SESS., GENERAL CROWDER SAID: 

"THE NEXT ARTICLE, NO. 15, IS ENTIRELY NEW, AND THE REASONS FOR ITS
INSERTION IN THE CODE ARE THESE:  IN OUR WAR WITH MEXICO TWO WAR COURTS
WERE BROUGHT INTO EXISTENCE BY ORDERS OF GEN. SCOTT, VIZ, THE MILITARY
COMMISSION AND THE COUNCIL OF WAR.  BY THE MILITARY COMMISSION GEN.
SCOTT TRIED CASES COGNIZABLE IN TIME OF PEACE BY CIVIL COURTS, AND BY
THE COUNCIL OF WAR HE TRIED OFFENSES AGAINST THE LAWS OF WAR.  THE
COUNCIL OF WAR DID NOT SURVIVE THE MEXICAN WAR PERIOD, AND IN OUR
SUBSEQUENT WARS ITS JURISDICTION HAS BEEN TAKEN OVER BY THE MILITARY
COMMISSION, WHICH DURING THE CIVIL WAR PERIOD TRIED MORE THAN 2,000
CASES.  WHILE THE MILITARY COMMISSION HAS NOT BEEN FORMALLY AUTHORIZED
BY STATUTE, ITS JURISDICTION AS A WAR COURT HAS BEEN UPHELD BY THE
SUPREME COURT OF THE UNITED STATES.  IT IS AN INSTITUTION OF THE
GREATEST IMPORTANCE IN A PERIOD OF WAR AND SHOULD BE PRESERVED.  IN THE
NEW CODE THE JURISDICTION OF COURTS-MARTIAL HAS BEEN SOMEWHAT AMPLIFIED
BY THE INTRODUCTION OF THE PHRASE 'PERSONS SUBJECT TO MILITARY LAW.' 
THERE WILL BE MORE INSTANCES IN THE FUTURE THAN IN THE PAST WHEN THE
JURISDICTION OF COURTS-MARTIAL WILL OVERLAP THAT OF THE WAR COURTS, AND
THE QUESTION WOULD ARISE WHETHER CONGRESS HAVING VESTED JURISDICTION BY
STATUTE THE COMMON LAW OF WAR JURISDICTION WAS NOT OUSTED.  I WISH TO
MAKE IT PERFECTLY PLAIN BY THE NEW ARTICLE THAT IN SUCH CASES THE
JURISDICTION OF THE WAR COURT IS CONCURRENT."  S. REP. NO. 229, 63D
CONG., 2D SESS., P. 53. 

AND LATER, IN 1916, SPEAKING BEFORE THE SUBCOMMITTEE ON MILITARY
AFFAIRS OF THE SENATE AT THEIR HEARINGS ON S. 3191, A PROJECT FOR THE
REVISION OF THE ARTICLES OF WAR, 64TH CONG., 1ST SESS., PRINTED AS AN
APPENDIX TO S. REP. 130, 64TH CONG., 1ST SESS., GENERAL CROWDER
EXPLAINED AT GREATER LENGTH: 

"ARTICLE 15 IS NEW.  WE HAVE INCLUDED IN ARTICLE 2 AS SUBJECT TO
MILITARY LAW A NUMBER OF PERSONS WHO ARE ALSO SUBJECT TO TRIAL BY
MILITARY COMMISSION.  A MILITARY COMMISSION IS OUR COMMON-LAW WAR
COURT.  IT HAS NO STATUTORY EXISTENCE, THOUGH IT IS RECOGNIZED BY
STATUTE LAW.  AS LONG AS THE ARTICLES EMBRACED THEM IN THE DESIGNATION
'PERSONS SUBJECT TO MILITARY LAW,' AND PROVIDED THAT THEY MIGHT BE
TRIED BY COURT-MARTIAL, I WAS AFRAID THAT, HAVING MADE A SPECIAL
PROVISION FOR THEIR TRIAL BY COURT-MARTIAL, IT MIGHT BE HELD THAT THE
PROVISION OPERATED TO EXCLUDE TRIALS BY MILITARY COMMISSION AND OTHER
WAR COURTS; SO THIS NEW ARTICLE WAS INTRODUCED ... 

"IT JUST SAVES TO THESE WAR COURTS THE JURISDICTION THEY NOW HAVE AND
MAKES IT A CONCURRENT JURISDICTION WITH COURTS-MARTIAL, SO THAT THE
MILITARY COMMANDER IN THE FIELD IN TIME OF WAR WILL BE AT LIBERTY TO
EMPLOY EITHER FORM OF COURT THAT HAPPENS TO BE CONVENIENT.  BOTH
CLASSES OF COURTS HAVE THE SAME PROCEDURE.  FOR THE INFORMATION OF THE
COMMITTEE AND IN EXPLANATION OF THESE WAR COURTS TO WHICH I HAVE
REFERRED I INSERT HERE AN EXPLANATION FROM WINTHROP'S MILITARY LAW AND
PRECEDENTS - 

"'THE MILITARY COMMISSION - A WAR COURT - HAD ITS ORIGIN IN G.O. 20,
HEADQUARTERS OF THE ARMY AT TAMPICO, FEBRUARY 19, 1847(GEN.  SCOTT). 
ITS JURISDICTION WAS CONFINED MAINLY TO CRIMINAL OFFENSES OF THE CLASS
COGNIZABLE BY CIVIL COURTS IN TIME OF PEACE COMMITTED BY INHABITANTS OF
THE THEATER OF HOSTILITIES.  A FURTHER WAR COURT WAS ORIGINATED BY GEN.
SCOTT AT THE SAME TIME, CALLED "COUNCIL OF WAR," WITH JURISDICTION TO
TRY THE SAME CLASSES OF PERSONS FOR VIOLATIONS OF THE LAWS OF WAR,
MAINLY GUERRILLAS.  THESE TWO JURISDICTIONS WERE UNITED IN THE LATER
WAR COURT OF THE CIVIL WAR AND SPANISH WAR PERIODS, FOR WHICH THE
GENERAL DESIGNATION OF "MILITARY COMMISSION" WAS RETAINED.  THE
MILITARY COMMISSION WAS GIVEN STATUTORY RECOGNITION IN SECTION 30, ACT
OF MARCH 3, 1863, AND IN VARIOUS OTHER STATUTES OF THAT PERIOD.  THE
UNITED STATES SUPREME COURT HAS ACKNOWLEDGED THE VALIDITY OF ITS
JUDGMENTS (EX PARTE VALLANDIGHAM, 1 WALL., 243, AND COLEMAN V.
TENNESSEE, 97 U.S., 509).  IT TRIED MORE THAN 2,000 CASES DURING THE
CIVIL WAR AND RECONSTRUCTION PERIOD.  ITS COMPOSITION, CONSTITUTION,
AND PROCEDURE FOLLOWS THE ANALOGY OF COURTS-MARTIAL.  ANOTHER WAR COURT
IS THE PROVOST COURT, AN INFERIOR COURT WITH JURISDICTION ASSIMILATED
TO THAT OF JUSTICES OF THE PEACE AND POLICE COURTS; AND OTHER WAR
COURTS VARIOUSLY DESIGNATED "COURTS OF CONCILIATION," "ARBITRATORS,"
"MILITARY TRIBUNALS," HAVE BEEN CONVENED BY MILITARY COMMANDERS IN THE
EXERCISE OF THE WAR POWER AS OCCASION AND NECESSITY DICTATED.'    "YET,
AS I HAVE SAID, THESE WAR COURTS NEVER HAVE BEEN FORMALLY AUTHORIZED BY
STATUTE. 

"SENATOR COLT.  THEY GREW OUT OF USAGE AND NECESSITY? 

"GEN. CROWDER.  OUT OF USAGE AND NECESSITY.  I THOUGHT IT WAS JUST AS
WELL, AS INQUIRIES WOULD ARISE, TO PUT THIS INFORMATION IN THE
RECORD."  S. REP. NO. 130, 64TH CONG., 1ST SESS. (1916) P. 40. 

ARTICLE 15 WAS ALSO EXPLAINED IN THE "REPORT OF A COMMITTEE ON THE
PROPOSED REVISION OF THE ARTICLES OF WAR, PURSUANT TO INSTRUCTIONS OF
THE CHIEF OF STAFF, MARCH 10, 1915," INCLUDED IN REVISION OF THE
ARTICLES OF WAR, COMPARATIVE PRINTS, ETC., 1904-1920, J.A.G.O., AS
FOLLOWS: 

"A NUMBER OF ARTICLES  ...  OF THE REVISION HAVE THE EFFECT OF GIVING
COURTS-MARTIAL JURISDICTION OVER CERTAIN OFFENDERS AND OFFENSES WHICH,
UNDER THE LAW OF WAR OR BY STATUTE, ARE ALSO TRIABLE BY MILITARY
COMMISSIONS, PROVOST COURTS, ETC.  ARTICLE 15 IS INTRODUCED FOR THE
PURPOSE OF MAKING CLEAR THAT IN SUCH CASES A COURT-MARTIAL HAS ONLY A
CONCURRENT JURISDICTION WITH SUCH WAR TRIBUNALS." 

FN32  OF COURSE, ARTICLES 25 AND 38, AT THE SAME TIME THAT THEY GAVE
PROTECTION TO DEFENDANTS BEFORE MILITARY COMMISSIONS, ALSO PROVIDED FOR
THE APPLICATION BY SUCH TRIBUNALS OF MODERN RULES OF PROCEDURE AND
EVIDENCE. 

FN33  WINTHROP, SPEAKING OF MILITARY COMMISSIONS AT THE TIME HE WAS
WRITING, 1896, SAYS:  "THE OFFENCES COGNIZABLE BY MILITARY COMMISSIONS
MAY THUS BE CLASSED AS FOLLOWS:  (1) CRIMES AND STATUTORY OFFENCES
COGNIZABLE BY STATE OR U.S. COURTS, AND WHICH WOULD PROPERLY BE TRIED
BY SUCH COURTS IF OPEN AND ACTING; (2) VIOLATIONS OF THE LAWS AND
USAGES OF WAR COGNIZABLE BY MILITARY TRIBUNALS ONLY; (3) BREACHES OF
MILITARY ORDERS OR REGULATIONS FOR WHICH OFFENDERS ARE NOT LEGALLY
TRIABLE BY COURT-MARTIAL UNDER THE ARTICLES OF WAR."  WINTHROP, AT*
1309.  AND CF. FAIRMAN, THE LAW OF MARTIAL RULE (2D ED. 1943):
"MILITARY COMMISSIONS TAKE COGNIZANCE OF THREE CATEGORIES OF CRIMINAL
CASES:  OFFENSES AGAINST THE LAWS OF WAR, BREACHES OF MILITARY
REGULATIONS, AND CIVIL CRIMES WHICH, WHERE THE ORDINARY COURTS HAVE
CEASED TO FUNCTION, CANNOT BE TRIED NORMALLY."  FAIRMAN, 265-266.  SEE
ALSO DAVIS, A TREATISE ON THE MILITARY LAW OF THE UNITED STATES (1915)
309-310. 

FN34  NOTE 31. 

FN35  IN ADDITION TO THE STATEMENTS OF GENERAL CROWDER WITH RELATION
TO ARTICLE 15, SET OUT IN NOTE 31 SUPRA, SEE THE FOLLOWING STATEMENTS
MADE WITH REFERENCE TO ARTICLE 25, IN 1912 AT A HEARING BEFORE THE
COMMITTEE ON MILITARY AFFAIRS OF THE HOUSE:  "WE COME NOW TO ARTICLE
25, WHICH RELATES TO THE ADMISSIBILITY OF DEPOSITIONS....  IT WILL BE
NOTED FURTHER THAT THE APPLICATION OF THE OLD ARTICLE HAS BEEN
BROADENED TO INCLUDE MILITARY COMMISSIONS, COURTS OF INQUIRY, AND
MILITARY BOARDS. 

"MR. SWEET.  PLEASE EXPLAIN WHAT YOU MEAN BY MILITARY COMMISSION. 

"GEN. CROWDER.  THAT IS OUR COMMON LAW OF WAR COURT, AND WAS REFERRED
TO BY ME IN A PRIOR HEARING.  (THE REFERENCE IS TO THE DISCUSSION OF
ARTICLE 15.)  THIS WAR COURT CAME INTO EXISTENCE DURING THE MEXICAN
WAR, AND WAS CREATED BY ORDERS OF GEN. SCOTT.  IT HAD JURISDICTION TO
TRY ALL CASES USUALLY COGNIZABLE IN TIME OF PEACE BY CIVIL COURTS. 
GEN. SCOTT CREATED ANOTHER WAR COURT, CALLED THE 'COUNCIL OF WAR,' WITH
JURISDICTION TO TRY OFFENSES AGAINST THE LAWS OF WAR.  THE
CONSTITUTION, COMPOSITION, AND JURISDICTION OF THESE COURTS HAVE NEVER
BEEN REGULATED BY STATUTE.  THE COUNCIL OF WAR DID NOT SURVIVE THE
MEXICAN WAR PERIOD, SINCE WHICH ITS JURISDICTION HAS BEEN TAKEN OVER BY
THE MILITARY COMMISSION.  THE MILITARY COMMISSION RECEIVED EXPRESS
RECOGNITION IN THE RECONSTRUCTION ACTS, AND ITS JURISDICTION HAS BEEN
AFFIRMED AND SUPPORTED BY ALL OUR COURTS.  IT WAS EXTENSIVELY EMPLOYED
DURING THE CIVIL WAR PERIOD AND ALSO DURING THE SPANISH-AMERICAN WAR. 
IT IS HIGHLY DESIRABLE THAT THIS IMPORTANT WAR COURT SHOULD BE
CONTINUED TO BE GOVERNED AS HERETOFORE, BY THE LAWS OF WAR RATHER THAN
BY STATUTE."  S. REP. NO. 229, 63D CONG., 2D SESS., 59; CF. S. REP.
130, 64TH CONG., 1ST SESS., 54-55.  SEE ALSO HEARINGS BEFORE THE
SUBCOMMITTEE OF THE COMMITTEE ON MILITARY AFFAIRS OF THE SENATE ON
ESTABLISHMENT OF MILITARY JUSTICE, 66TH CONG., 1ST SESS., 1182-1183. 

FURTHER EVIDENCE THAT PROCEDURAL PROVISIONS OF THE ARTICLES WERE
INTENDED TO APPLY TO ALL FORMS OF MILITARY TRIBUNAL IS GIVEN BY ARTICLE
24, 10 U.S.C. SEC. 1495, WHICH PROVIDES AGAINST COMPULSORY SELF
INCRIMINATION "BEFORE A MILITARY COURT, COMMISSION, COURT OF INQUIRY,
OR BOARD, OR BEFORE AN OFFICER CONDUCTING AN INVESTIGATION."  THIS
ARTICLE WAS DRAFTED SO THAT "THE PROHIBITION SHOULD REACH ALL
WITNESSES, IRRESPECTIVE OF THE CLASS OF MILITARY TRIBUNAL BEFORE WHICH
THEY APPEAR  ..."  COMPARATIVE PRINT SHOWING S. 3191 WITH THE PRESENT
ARTICLES OF WAR AND OTHER RELATED STATUTES, AND EXPLANATORY NOTES,
PRINTED FOR USE OF THE SENATE COMMITTEE ON MILITARY AFFAIRS, 64TH
CONG., 1ST SESS., 17, INCLUDED IN REVISION OF THE ARTICLES OF WAR,
COMPARATIVE PRINTS, ETC., 1904-1920, J.A.G.O. 

FN36  WE ARE INFORMED THAT JAPAN HAS NOT RATIFIED THE GENEVA
CONVENTION.  SEE DISCUSSION OF ARTICLE 82 IN THE PARAGRAPHS BELOW.  WE
ARE ALSO INFORMED, HOWEVER - AND THE RECORD SHOWS THIS AT LEAST AS TO
JAPAN - THAT AT THE BEGINNING OF THE WAR BOTH THE UNITED STATES AND
JAPAN ANNOUNCED THEIR INTENTION TO ADHERE TO THE PROVISIONS OF THAT
TREATY.  THE FORCE OF THAT UNDERSTANDING CONTINUES, PERHAPS WITH
GREATER REASON IF NOT EFFECT, DESPITE THE END OF HOSTILITIES.  SEE NOTE
40 AND TEXT. 

ARTICLE 82 PROVIDES: 

"THE PROVISIONS OF THE PRESENT CONVENTION MUST BE RESPECTED BY THE
HIGH CONTRACTING PARTIES UNDER ALL CIRCUMSTANCES. 

"IN CASE, IN TIME OF WAR, ONE OF THE BELLIGERENTS IS NOT A PARTY TO
THE CONVENTION, ITS PROVISIONS SHALL NEVERTHELESS REMAIN IN FORCE AS
BETWEEN THE BELLIGERENTS WHO ARE PARTIES THERETO." 

IT IS NOT CLEAR WHETHER THE ARTICLE MEANS THAT DURING A WAR, WHEN ONE
OF THE BELLIGERENTS IS NOT A PARTY TO THE CONVENTION, THE PROVISIONS
MUST NEVERTHELESS BE APPLIED BY ALL THE OTHER BELLIGERENTS TO THE
PRISONERS OF WAR NOT ONLY OF ONE ANOTHER BUT ALSO OF THE POWER THAT WAS
NOT A PARTY THERETO OR WHETHER IT MEANS THAT THEY NEED NOT BE APPLIED
TO SOLDIERS OF THE NONPARTICIPATING PARTY WHO HAVE BEEN CAPTURED.  IF
THE LATTER MEANING IS ACCEPTED, THE FIRST PARAGRAPH WOULD SEEM TO
CONTRADICT THE SECOND. 

"LEGISLATIVE HISTORY" HERE IS OF SOME, IF LITTLE, AID.  A SUGGESTED
DRAFT OF A CONVENTION ON WAR PRISONERS DRAWN UP IN ADVANCE OF THE
GENEVA MEETING BY THE INTERNATIONAL COMMITTEE OF THE RED CROSS (ACTES
DE LA CONFERENCE DIPLOMATIQUE DE GENEVE, EDITED BY DES GOUTTES, PP. 21
34) PROVIDED IN ARTICLE 92 THAT THE PROVISIONS OF THE CONVENTION "NE
CESSERONT D'ETRE OBLIGATORIES QU'AU CAS OU L'UN DES ETATS BELLIGERENTS
PARTICIPANT A LA CONVENTION SE TROUVE AVOIR A COMBATTRE LES FORCES
ARMEES D'UN AUTRE ETAT QUE N'Y SERAIT PAR PARTIE ET A L'EGARD DE CET
ETAT SEULEMENT."  SEE RASMUSSEN, CODE DES PRISONNIERS DE GUERRE (1931)
70.  THE FACT THAT THIS SUGGESTED ARTICLE WAS NOT INCLUDED IN THE
GENEVA CONVENTION WOULD INDICATE THAT THE NATIONS IN ATTENDANCE WERE
AVOIDING A DECISION ON THIS PROBLEM.  BUT I THINK IT SHOWS MORE, THAT
IS, IT MANIFESTS AN INTENTION NOT TO FORECLOSE A FUTURE HOLDING THAT
UNDER THE TERMS OF THE CONVENTION A STATE IS BOUND TO APPLY THE
PROVISIONS TO PRISONERS OF WAR OF NONPARTICIPATING STATES.  AND NOT TO
FORECLOSE SUCH A HOLDING IS TO INVITE ONE.  WE SHOULD, IN MY OPINION,
SO HOLD, FOR REASONS OF SECURITY TO MEMBERS OF OUR OWN ARMED FORCES
TAKEN PRISONER, IF FOR NO OTHERS. 

MOREOVER, IF THIS VIEW IS WRONG AND THE GENEVA CONVENTION IS NOT
STRICTLY BINDING UPON THE UNITED STATES AS A TREATY, IT IS STRONG
EVIDENCE OF AND SHOULD BE HELD BINDING AS REPRESENTING WHAT HAVE BECOME
THE CIVILIZED RULES OF INTERNATIONAL WARFARE.  YAMASHITA IS AS MUCH
ENTITLED TO THE BENEFIT OF SUCH RULES AS TO THE BENEFIT OF A BINDING
TREATY WHICH CODIFIES THEM.  SEE U.S. WAR DEPT., BASIC FIELD MANUAL,
RULES OF LAND WARFARE (1940), PAR. 5-B. 

FN37  TITLE III OF THE CONVENTION, WHICH COMPRISES ARTICLES 7 TO 67,
IS CALLED "CAPTIVITY."  IT CONTAINS SEC. I, "EVACUATION OF PRISONERS OF
WAR" (ARTICLES 7-8); SEC. II, "PRISONERS-OF-WAR CAMPS" (ARTICLES 9-26);
SEC. III, "LABOR OF PRISONERS OF WAR" (ARTICLES 27-34); SEC. IV,
"EXTERNAL RELATIONS OF PRISONERS OF WAR" (ARTICLES 35-41); AND SEC. V,
"PRISONERS' RELATIONS WITH THE AUTHORITIES" (ARTICLES 42-67).  THUS
TITLE III REGULATES ALL THE VARIOUS INCIDENTS OF A PRISONER OF WAR'S
LIFE WHILE IN CAPTIVITY. 

THREE CHAPTERS.  CHAPTER 1(ARTICLE 42) GIVES A PRISONER OF WAR THE
RIGHT TO COMPLAIN OF HIS CONDITION OF CAPTIVITY.  CHAPTER 2(ARTICLES 43
44) GIVES PRISONERS OF WAR THE RIGHT TO APPOINT AGENTS TO REPRESENT
THEM.  CHAPTER 3 IS DIVIDED INTO THREE SUBSECTIONS AND IS TERMED
"PENALTIES APPLICABLE TO PRISONERS OF WAR."  SUBSECTION 1(ARTICLES 45
53) CONTAINS VARIOUS MISCELLANEOUS ARTICLES TO BE CONSIDERED IN DETAIL
LATER.  SUBSECTION 2(ARTICLES 54-59) CONTAINS PROVISIONS WITH RESPECT
TO DISCIPLINARY PUNISHMENTS.  AND SUBSECTION 3(ARTICLES 60-67), WHICH
IS TERMED "JUDICIAL SUITS," CONTAINS VARIOUS PROVISIONS FOR PROTECTION
OF A PRISONER'S RIGHTS IN JUDICIAL PROCEEDINGS INSTITUTED AGAINST HIM. 

THUS, SUBSECTION 3, WHICH CONTAINS ARTICLES 60 AND 63, AS OPPOSED TO
SUBSECTION 2, OF CHAPTER 3, IS CONCERNED NOT WITH MERE PROBLEMS OF
DISCIPLINE, AS IS THE LATTER, BUT WITH THE MORE SERIOUS MATTERS OF
TRIAL LEADING TO IMPRISONMENT OR POSSIBLE SENTENCE OF DEATH; CF.
BRERETON, THE ADMINISTRATION OF JUSTICE AMONG PRISONERS OF WAR BY
MILITARY COURTS (1935) 1 PROC. AUSTRALIAN & NEW ZEALAND SOCIETY OF
INTERNATIONAL LAW 143, 153.  THE COURT, HOWEVER, WOULD HAVE THE
DISTINCTION BETWEEN SUBSECTION 2 AND SUBSECTION 3 ONE BETWEEN MINOR
DISCIPLINARY ACTION AGAINST A PRISONER OF WAR FOR ACTS COMMITTED WHILE
A PRISONER AND MAJOR JUDICIAL ACTION AGAINST A PRISONER OF WAR FOR ACTS
COMMITTED WHILE A PRISONER.  THIS NARROW VIEW NOT ONLY IS HIGHLY
STRAINED, CONFUSING THE DIFFERENT SITUATIONS AND PROBLEMS TREATED BY
THE TWO SUBDIVISIONS.  IT DEFEATS THE MOST IMPORTANT PROTECTIONS
SUBSECTION 3 WAS INTENDED TO SECURE, FOR OUR OWN AS WELL AS FOR ENEMY
CAPTIVE MILITARY PERSONNEL. 

AT THE MOST, THERE WOULD BE LOGIC IN THE COURT'S CONSTRUCTION IF IT
COULD BE SAID THAT ALL OF CHAPTER 3 DEALS WITH ACTS COMMITTED WHILE A
PRISONER OF WAR.  OF COURSE, SUBSECTION 2 DOES, BECAUSE OF THE VERY
NATURE OF ITS SUBJECT-MATTER.  DISCIPLINARY ACTION WILL BE TAKEN BY A
CAPTOR POWER AGAINST PRISONERS OF WAR ONLY FOR ACTS COMMITTED BY
PRISONERS AFTER CAPTURE. 

BUT IT IS SAID THAT SUBSECTION 1 DEALS EXCLUSIVELY WITH ACTS
COMMITTED BY A PRISONER OF WAR AFTER HAVING BECOME A PRISONER, AND THIS
INDICATES SUBSECTION 3 IS LIMITED SIMILARLY.  THIS IGNORES THE FACT
THAT SOME OF THE ARTICLES IN SUBSECTION 1 APPEAR, ON THEIR FACE, TO
APPLY TO ALL JUDICIAL PROCEEDINGS FOR WHATEVER PURPOSE INSTITUTED. 
ARTICLE 46, FOR EXAMPLE, PROVIDES IN PART: 

"PUNISHMENTS OTHER THAN THOSE PROVIDED FOR THE SAME ACTS FOR SOLDIERS
OF THE NATIONAL ARMIES MAY NOT BE IMPOSED UPON PRISONERS OF WAR BY THE
MILITARY AUTHORITIES AND COURTS OF THE DETAINING POWER." 

THIS SEEMS TO REFER TO WAR CRIMES AS WELL AS TO OTHER OFFENSES; FOR
SURELY A COUNTRY CANNOT PUNISH SOLDIERS OF ANOTHER ARMY FOR OFFENSES
AGAINST THE LAWS OF WAR, WHEN IT WOULD NOT PUNISH ITS OWN SOLDIERS FOR
THE SAME OFFENSES.  SIMILARLY, ARTICLE 47 IN SUBSECTION 1 APPEARS TO
REFER TO WAR CRIMES AS WELL AS TO CRIMES COMMITTED BY A PRISONER AFTER
HIS CAPTURE.  IT READS IN PART: 

"JUDICIAL PROCEEDINGS AGAINST PRISONERS OF WAR SHALL BE CONDUCTED AS
RAPIDLY AS THE CIRCUMSTANCES PERMIT; PREVENTIVE IMPRISONMENT SHALL BE
LIMITED AS MUCH AS POSSIBLE." 

THUS, AT THE MOST, SUBSECTION 1 CONTAINS, IN SOME OF ITS ARTICLES,
THE SAME AMBIGUITIES AND IS OPEN TO THE SAME PROBLEM THAT WE ARE FACED
WITH IN CONSTRUING ARTICLES 60 AND 63.  IT CANNOT BE SAID, THEREFORE,
THAT ALL OF CHAPTER 3, AND ESPECIALLY SUBSECTION 3, RELATE ONLY TO ACTS
COMMITTED BY PRISONERS OF WAR AFTER CAPTURE, FOR THE MEANING OF
SUBSECTION 3, IN THIS ARGUMENT, IS RELATED TO THE MEANING OF SUBSECTION
1; AND SUBSECTION 1 IS NO MORE CLEARLY RESTRICTED TO PUNISHMENTS AND
PROCEEDINGS IN DISCIPLINARY MATTERS THAN IS SUBSECTION 3. 

FN38  ARTICLE 60 PERTINENTLY IS AS FOLLOWS:  "AT THE OPENING OF A
JUDICIAL PROCEEDING DIRECTED AGAINST A PRISONER OF WAR, THE DETAINING
POWER SHALL ADVISE THE REPRESENTATIVE OF THE PROTECTING POWER THEREOF
AS SOON AS POSSIBLE, AND ALWAYS BEFORE THE DATE SET FOR THE OPENING OF
THE TRIAL. 

"THIS ADVICE SHALL CONTAIN THE FOLLOWING INFORMATION: 

"A)  CIVIL STATE AND RANK OF PRISONER; 

"B)  PLACE OF SOJOURN OR IMPRISONMENT; 

"C) SPECIFICATION OF THE (COUNT) OR COUNTS OF THE INDICTMENT, GIVING
THE LEGAL PROVISIONS APPLICABLE. 

"IF IT IS NOT POSSIBLE TO MENTION IN THAT ADVICE THE COURT WHICH WILL
PASS UPON THE MATTER, THE DATE OF OPENING THE TRIAL AND THE PLACE WHERE
IT WILL TAKE PLACE, THIS INFORMATION MUST BE FURNISHED TO THE
REPRESENTATIVE OF THE PROTECTING POWER LATER, AS SOON AS POSSIBLE, AND
AT ALL EVENTS, AT LEAST THREE WEEKS BEFORE THE OPENING OF THE TRIAL." 

ARTICLE 63 READS:  "SENTENCE MAY BE PRONOUNCED AGAINST A PRISONER OF
WAR ONLY BY THE SAME COURTS AND ACCORDING TO THE SAME PROCEDURE AS IN
THE CASE OF PERSONS BELONGING TO THE ARMED FORCES OF THE DETAINING
POWER." 

FN39  ITEM 89 CHARGED THE ARMED FORCES OF JAPAN WITH SUBJECTING TO
TRIAL CERTAIN NAMED AND OTHER PRISONERS OF WAR "WITHOUT PRIOR NOTICE TO
A REPRESENTATIVE OF THE PROTECTING POWER, WITHOUT OPPORTUNITY TO
DEFEND, AND WITHOUT COUNSEL; DENYING OPPORTUNITY TO APPEAL FROM THE
SENTENCE RENDERED; FAILING TO NOTIFY THE PROTECTING POWER OF THE
SENTENCE PRONOUNCED; AND EXECUTING A DEATH SENTENCE WITHOUT
COMMUNICATING TO THE REPRESENTATIVE OF THE PROTECTING POWER THE NATURE
AND CIRCUMSTANCES OF THE OFFENSE CHARGED."    FN40  NATIONS ADHERE TO
INTERNATIONAL TREATIES REGULATING THE CONDUCT OF WAR AT LEAST IN PART
BECAUSE OF THE FEAR OF RETALIATION.  JAPAN NO LONGER HAS THE MEANS OF
RETALIATING. 

FN41 THERE CAN BE NO LIMIT EITHER TO THE ADMISSIBILITY OR THE USE OF
EVIDENCE IF THE ONLY TEST TO BE APPLIED CONCERNS PROBATIVE VALUE AND
THE ONLY TEST OF PROBATIVE VALUE, AS THE DIRECTIVE COMMANDED AND THE
COMMISSION FOLLOWED OUT, LIES "IN THE COMMISSION'S OPINION," WHETHER
THAT BE CONCERNING THE ASSISTANCE THE "EVIDENCE" TENDERED WOULD GIVE IN
PROVING OR DISPROVING THE CHARGE OR AS IT MIGHT THINK WOULD "HAVE VALUE
IN THE MIND OF A REASONABLE MAN."  NOR IS IT ENOUGH TO ESTABLISH THE
SEMBLANCE OF A CONSTITUTIONAL RIGHT THAT THE COMMISSION DECLARES, IN
RECEIVING THE EVIDENCE, THAT IT COMES IN AS HAVING ONLY SUCH PROBATIVE
VALUE, IF ANY, AS THE COMMISSION DECIDES TO AWARD IT AND THIS IS
ACCEPTED AS CONCLUSIVE. 

FN42  2 THE COMPLETE WRITINGS OF THOMAS PAINE (EDITED BY FONER, 1945)
588. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 
..END :



















CANIZIO V. NEW YORK, 327 U.S. 82 


NO. 152.  ARGUED JANUARY 4, 1946.  - DECIDED FEBRUARY 4, 1946.  -
AFFIRMED. 


PETITIONER, BEING UNDER A STATE COURT SENTENCE OF IMPRISONMENT FOR 15
TO 30 YEARS ON A PLEA OF GUILTY TO A CHARGE OF ROBBERY AND HAVING
SERVED ALMOST 14 YEARS, INSTITUTED PROCEEDINGS IN A COUNTY COURT BY A
MOTION CORAM NOBIS PRAYING THAT THE SENTENCE BE VACATED AND SET ASIDE. 
HE ALLEGED UNDER OATH THAT, AT THE TIME OF HIS ARRAIGNMENT, GUILTY PLEA
AND SENTENCE, HE WAS 19 YEARS OLD AND UNFAMILIAR WITH LEGAL
PROCEEDINGS, THAT HE WAS NOT REPRESENTED BY COUNSEL, THAT THE COURT
NEITHER ASKED HIM IF HE DESIRED COUNSEL NOR ADVISED HIM OF HIS RIGHT TO
COUNSEL, AND THAT THE ACCEPTANCE OF HIS GUILTY PLEA AND THE SENTENCING
UNDER THESE CIRCUMSTANCES DEPRIVED HIM OF LIBERTY WITHOUT DUE PROCESS
OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  IN OPPOSITION TO THE
MOTION, THE DISTRICT ATTORNEY FILED AN AFFIDAVIT ADMITTING THAT THE
COURT RECORDS FAILED TO SHOW THAT PETITIONER HAD BEEN REPRESENTED BY
COUNSEL WHEN HE WAS ARRAIGNED AND WHEN HE PLEADED GUILTY, BUT DENYING
THAT HE WAS NOT REPRESENTED BY COUNSEL WHEN SENTENCED AND ALLEGING THAT
NOTICE OF APPEARANCE OF COUNSEL ON BEHALF OF PETITIONER WAS FILED TWO
DAYS BEFORE SENTENCE WAS IMPOSED.  PETITIONER FILED NO DENIAL.  THE
RECORD OF THE ORIGINAL PROCEEDINGS IN WHICH PETITIONER WAS SENTENCED
SHOWED THAT HE WAS ACTIVELY REPRESENTED BY COUNSEL IN LONG HEARINGS
DURING THE DAY OF SENTENCE.  THE COURT DENIED PETITIONER'S MOTION ON
THE BASIS OF THE AFOREMENTIONED PAPERS, INCLUDING THE RECORD OF THE
ORIGINAL PROCEEDINGS, WITHOUT PERMITTING PETITIONER TO INTRODUCE ANY
EVIDENCE.  HELD: 

1.  THE MOTION CORAM NOBIS BEING A PROPER PROCEDURE TO RAISE THE
FEDERAL QUESTION UNDER THE STATE PRACTICE AND THE COUNTY COURT'S DENIAL
OF THE MOTION NOT BEING APPEALABLE TO ANY HIGHER STATE COURT, THIS
COURT HAS JURISDICTION TO CONSIDER THE CASE.  P. 85. 

2.  HAD THERE BEEN NOTHING TO CONTRADICT PETITIONER'S ALLEGATION THAT
HE WAS NOT REPRESENTED BY COUNSEL IN THE INTERIM BETWEEN HIS PLEA OF
GUILTY AND THE TIME HE WAS SENTENCED, HIS CHARGES WOULD HAVE BEEN SUCH
AS TO HAVE REQUIRED THE COURT TO HOLD A HEARING ON HIS MOTION.  P. 85. 

3.  THE NEW FACTS DISCLOSED BY THE DISTRICT ATTORNEY'S AFFIDAVIT
BEING UNDENIED AND THE RECORD OF THE ORIGINAL PROCEEDINGS SHOWING THAT
PETITIONER WAS ACTIVELY REPRESENTED BY COUNSEL IN LONG HEARINGS DURING
THE DAY OF SENTENCE, SO FAR REFUTED PETITIONER'S ENTIRE CONSTITUTIONAL
CLAIM AS TO JUSTIFY THE COUNTY COURT'S HOLDING THAT A HEARING ON HIS
MOTION WAS UNNECESSARY.  P. 85. 

4.  SINCE COUNSEL WHO REPRESENTED PETITIONER ON THE DAY OF SENTENCE
COULD HAVE MOVED TO WITHDRAW THE PLEA OF GUILTY AND LET HIM STAND TRIAL
AND PETITIONER HAD COUNSEL IN AMPLE TIME TO TAKE ADVANTAGE OF EVERY
DEFENSE WHICH WOULD HAVE BEEN AVAILABLE TO HIM ORIGINALLY, IT CAN NOT
BE SAID THAT THE COURT DENIED PETITIONER THE RIGHT TO HAVE A TRIAL WITH
THE BENEFIT OF COUNSEL.  P. 85. 

CANIZIO V. NEW YORK. 

CERTIORARI TO THE COUNTY COURT OF KINGS COUNTY, NEW YORK. 

PETITIONER INSTITUTED A CORAM NOBIS PROCEEDING IN THE COUNTY COURT OF
KINGS COUNTY, NEW YORK, PRAYING THAT A SENTENCE WHICH HAD BEEN IMPOSED
ON HIM ON A PLEA OF GUILTY BE VACATED ON THE GROUND, INTER ALIA, THAT
HE HAD BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  THE MOTION HAVING BEEN DENIED
AND THERE BEING NO APPEAL TO A HIGHER STATE COURT, THIS COURT GRANTED
CERTIORARI.  326 U.S. 705.  AFFIRMED, P. 87. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ON JUNE 1, 1931 IN THE COUNTY COURT OF KINGS COUNTY, NEW YORK, THE
PETITIONER PLEADED GUILTY TO THE CRIME OF ROBBERY IN THE FIRST DEGREE. 
ON JUNE 19, 1931 THAT COURT SENTENCED HIM TO SERVE A TERM OF FROM 15 TO
30 YEARS IN STATE PRISON.  AFTER THE PETITIONER HAD SERVED ALMOST 14
YEARS OF THIS SENTENCE HE INSTITUTED THIS PROCEEDING BY A MOTION, CORAM
NOBIS, IN THE KINGS COUNTY COURT, PRAYING THAT THE JUNE 19, 1931
SENTENCE BE VACATED AND SET ASIDE.  HIS MOTION, VERIFIED BY OATH,
ALLEGED THAT AT THE TIME OF HIS ARRAIGNMENT, GUILTY PLEA, AND SENTENCE,
PETITIONER WAS 19 YEARS OLD AND UNFAMILIAR WITH LEGAL PROCEEDINGS; THAT
HE WAS NOT REPRESENTED BY COUNSEL; AND THAT THE COURT NEITHER ASKED HIM
WHETHER HE DESIRED COUNSEL TO BE ASSIGNED, NOR ADVISED HIM OF HIS RIGHT
TO COUNSEL.  PETITIONER'S MOTION CHARGED THAT THE ACCEPTANCE OF HIS
GUILTY PLEA AND THE SENTENCING UNDER THESE CIRCUMSTANCES VIOLATED
ARTICLE 1, SEC. 6 OF THE NEW YORK STATE CONSTITUTION AND SEC. 308 OF
THE NEW YORK CODE OF CRIMINAL PROCEDURE, AND DEPRIVED HIM OF HIS
LIBERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION. 

THE DISTRICT ATTORNEY FILED AN AFFIDAVIT OPPOSING THE MOTION.  THIS
AFFIDAVIT, BASED ON INFORMATION OBTAINED FROM COURT RECORDS, ADMITTED
THAT THESE FAILED TO SHOW THAT PETITIONER HAD BEEN REPRESENTED BY
COUNSEL WHEN HE WAS ARRAIGNED AND WHEN HE PLEADED GUILTY ON JUNE 1,
1931.  TO OVERCOME THIS APPARENT DEFECT OF THE RECORD THE AFFIDAVIT
URGED THE PRESUMPTION OF REGULARITY OF JUDICIAL PROCEEDINGS TO SUPPORT
THE CONCLUSION, IN THE ABSENCE OF A CLEAR SHOWING TO THE CONTRARY, THAT
THE JUDGE MUST HAVE PERFORMED HIS DUTY UNDER NEW YORK'S LAWS TO ADVISE
PETITIONER OF HIS RIGHT TO COUNSEL.  THE DISTRICT ATTORNEY CONTENDED
THAT PETITIONER'S MOTION THOUGH VERIFIED WAS NOT SUFFICIENT TO OVERCOME
THIS PRESUMPTION, ESPECIALLY SINCE PETITIONER'S CONVICTION OCCURRED 14
YEARS AGO.  MOREOVER, THE AFFIDAVIT DENIED THAT PETITIONER WAS NOT
REPRESENTED BY COUNSEL AT THE TIME OF SENTENCING, AND ALLEGED THAT ON
JUNE 17, 1931, TWO DAYS BEFORE THE SENTENCE WAS IMPOSED, THERE WAS
FILED A NOTICE OF APPEARANCE OF COUNSEL ON BEHALF OF THE PETITIONER. 
THUS, ACCORDING TO THE AFFIDAVIT PETITIONER WAS REPRESENTED BY COUNSEL
FROM JUNE 17TH TO JUNE 19TH, 1931.  PETITIONER FILED NO DENIAL TO THIS
AFFIDAVIT. 

THE COURT DENIED PETITIONER'S MOTION ON THE BASIS OF THE
AFOREMENTIONED PAPERS INCLUDING THE RECORD OF THE ORIGINAL PROCEEDING,
AND WITHOUT PERMITTING PETITIONER TO INTRODUCE ANY EVIDENCE.  UNDER NEW
YORK PRACTICE PETITIONER'S MOTION WAS THE PROPER PROCEDURE TO RAISE THE
FEDERAL QUESTION.  LYONS V. GOLDSTEIN, 290 N.Y. 19, 47 N.E.2D 425. 
SINCE THE COURT'S DENIAL OF THE MOTION CANNOT BE APPEALED TO ANY HIGHER
NEW YORK COURT, PEOPLE V. GERSEWITZ, 294 N.Y. 163, 61 N.E.2D 427, WE
HAVE JURISDICTION TO CONSIDER THE CASE.  BETTS V. BRADY, 316 U.S. 455,
461.  WE GRANTED CERTIORARI BECAUSE THE CASE PRESENTS AN IMPORTANT
QUESTION INVOLVING THE RIGHT TO COUNSEL UNDER THE CONSTITUTION OF THE
UNITED STATES. 

BEFORE WE CONSIDER THIS QUESTION WE SHALL ASSUME THAT PETITIONER WAS
WITHOUT COUNSEL WHEN ARRAIGNED AND WHEN HE PLEADED GUILTY AND THAT
ALTHOUGH HE WAS UNFAMILIAR WITH HIS LEGAL RIGHTS THE COURT FAILED TO
INFORM HIM OF HIS RIGHT TO COUNSEL.  CONSEQUENTLY, HAD THERE BEEN
NOTHING TO CONTRADICT PETITIONER'S GENERAL ALLEGATION THAT HE WAS NOT
REPRESENTED BY COUNSEL IN THE INTERIM BETWEEN HIS PLEA OF GUILTY AND
THE TIME HE WAS SENTENCED, HIS CHARGES WOULD HAVE BEEN SUCH AS TO HAVE
REQUIRED THE COURT TO HOLD A HEARING ON HIS MOTION.  RICE V. OLSON, 324
U.S. 786.  BUT THE DISTRICT ATTORNEY'S AFFIDAVIT AND THE RECORD AND
STENOGRAPHIC TRANSCRIPTS OF THE ORIGINAL PROCEEDINGS IN WHICH
PETITIONER WAS SENTENCED SHOW THAT PETITIONER WAS ACTIVELY REPRESENTED
BY COUNSEL IN LONG HEARINGS DURING THE DAY OF SENTENCE.  IN OUR
OPINION, THESE NEW FACTS, UNDENIED, SO FAR REFUTED PETITIONER'S ENTIRE
CONSTITUTIONAL CLAIM AS TO JUSTIFY THE COURT'S HOLDING THAT A HEARING
ON PETITIONER'S MOTION WAS UNNECESSARY. 

THESE PAPERS BEFORE THE TRIAL COURT SHOWED THAT PETITIONER ALONG WITH
TWO OTHERS WERE ORIGINALLY CHARGED UNDER THREE COUNTS.  PETITIONER
PLEADED GUILTY ON ONE CHARGE ON CONDITION THAT HE WOULD NOT BE
PROSECUTED ON THE OTHER TWO.  THEREAFTER, AS WE HAVE INDICATED, AN
ATTORNEY APPEARED ON HIS BEHALF IN AN EFFORT TO SECURE A LOW SENTENCE. 
THE ATTORNEY COULD HAVE MOVED TO WITHDRAW THE PLEA OF GUILTY AND THE
COUNTY COURT OF KINGS COUNTY WOULD HAVE HAD THE POWER TO SET ASIDE THE
PLEA AND LET THE PETITIONER STAND TRIAL.  NEW YORK CODE OF CRIMINAL
PROCEDURE, SEC. 337; PEOPLE V. GOWASKY, 244 N.Y. 451, 155 N.E. 737. 
PETITIONER'S COUNSEL PROBABLY THOUGHT IT UNDESIRABLE TO DO SO, BECAUSE
THIS MOVE MIGHT HAVE JEOPARDIZED HIS CHANCES FOR SECURING A LOW
SENTENCE.  THE PLEA WAS TO ROBBERY IN THE FIRST DEGREE, UNARMED.  THE
RECORD CLEARLY SHOWS THAT PETITIONER WAS HEAVILY ARMED.  HAD HE BEEN
CONVICTED OF FIRST DEGREE ROBBERY WHILE ARMED HE WOULD IN ALL
LIKELIHOOD HAVE GOTTEN A HIGHER SENTENCE.  CF. PEOPLE EX REL. O'BERST
V. MURPHY, 256 APP. DIV. 58, 8 N.Y.S.2D 965; PEOPLE EX REL. PILO V.
MARTIN, 262 APP. DIV. 1056, 30 N.Y.S.2D 290.  AT ANY RATE, WHATEVER THE
REASON, PETITIONER'S COUNSEL DID NOT MOVE TO WITHDRAW THE GUILTY PLEA. 
FN1  ALL OF THIS DEMONSTRATED TO THE SATISFACTION OF THE COURT BELOW
THAT EVEN THOUGH PETITIONER MAY NOT HAVE HAD COUNSEL AT THE BEGINNING,
HE HAD COUNSEL IN AMPLE TIME TO TAKE ADVANTAGE OF EVERY DEFENSE WHICH
WOULD HAVE BEEN AVAILABLE TO HIM ORIGINALLY.  WE THINK THE RECORD SHOWS
THAT PETITIONER ACTUALLY HAD THE BENEFIT OF COUNSEL.  WHEN THAT COUNSEL
TOOK OVER PETITIONER'S DEFENSE HE COULD HAVE RAISED THE QUESTION OF A
DEFECT IN THE EARLIER PART OF THE PROCEEDINGS.  FN2  FAILING TO DO SO
WHEN THE STATUTE AFFORDED HIM THE OPPORTUNITY, WE CANNOT SAY THAT THE
COURT DENIED PETITIONER THE RIGHT TO HAVE A TRIAL WITH THE BENEFIT OF
COUNSEL. 

PETITIONER'S MOTION WAS, THEREFORE, PROPERLY DENIED.  AFFIRMED. 

FN1  THE ASSUMPTION CANNOT BE MADE THAT HAD PETITIONER'S COUNSEL DONE
SO IT WOULD NOT HAVE BEEN GRANTED.  IF THE MOTION HAD IN FACT BEEN
DENIED, PETITIONER'S COUNSEL COULD HAVE APPEALED AND THUS HAVE BROUGHT
UP THE DENIAL OF THE MOTION.  CODE OF CRIM. PROC. SEC. 517; PEOPLE V.
JOYCE, 41 HUN 641.  IF THE CASE HAD THEN EVENTUALLY REACHED US OUR
PREVIOUS DECISIONS WOULD HAVE COMPELLED US TO HOLD THE DENIAL OF THE
MOTION IMPROPER.  SEE E.G. RICE V. OLSON, SUPRA.  BUT THE QUESTION IS
NOT BEFORE US IN THIS PROCEEDING. 

FN2  IT IS SUGGESTED THAT THE NEW YORK CASE OF PEOPLE V. STEINMETZ,
240 N.Y. 411, 148 N.E. 597, WHICH ALLOWS A WITHDRAWN GUILTY PLEA UNDER
SOME CIRCUMSTANCES TO BE ADMITTED AT TRIAL AS EVIDENCE IN THE NATURE OF
A CONFESSION, MIGHT HAVE COMPELLED COUNSEL TO REFRAIN FROM MAKING A
MOTION TO WITHDRAW THE PLEA BECAUSE IN VIEW OF THE STEINMETZ RULE
LITTLE WOULD THEREBY BE ACCOMPLISHED IN A PRACTICAL WAY.  IN THE
STEINMETZ CASE DEFENDANT HAD BEEN REPRESENTED BY COUNSEL AT THE TIME OF
THE GUILTY PLEA.  THE OPINION, READ AS A WHOLE, SEEMS TO INDICATE THAT
A GUILTY PLEA WOULD BE INADMISSIBLE AS EVIDENCE AT A TRIAL, WHERE IT
WAS LATER WITHDRAWN BECAUSE DEFENDANT, IGNORANT OF HIS RIGHT TO
COUNSEL, HAD AT THE TIME OF PLEADING GUILTY NOT BEEN INFORMED OF HIS
RIGHT.  WE HAVE HELD THAT IN A FEDERAL COURT A WITHDRAWN GUILTY PLEA IS
NOT ADMISSIBLE IN EVIDENCE.  KERCHEVAL V. UNITED STATES, 274 U.S. 220,
223, 225.  SEE ALSO PEOPLE V. ARIANO, 264 APP. DIV. 426, 35 N.Y.S.2D
818.  IF A GUILTY PLEA WITHOUT COUNSEL SHOULD BE HELD ADMISSIBLE IN NEW
YORK, THE PROPER CASE IN WHICH TO RAISE THE ISSUE OF THE PROPRIETY OF
ITS ADMISSION IS ON APPEAL TO THIS COURT ON CONVICTION AFTER TRIAL. 
OTHERWISE, IF SUCH AN ADMISSION IS PROPER AT ALL IT WOULD ALSO BE
PROPER IF A TRIAL IS HAD AFTER WE REVERSED THIS CASE.  CONSEQUENTLY
NOTHING WOULD BE GAINED BY A REVERSAL ON THAT GROUND. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MURPHY, DISSENTING. 

THE COMPLETE TRAVESTY OF JUSTICE REVEALED BY THE RECORD IN THIS CASE
FORCES ME TO DISSENT. 

THE CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL IS A VERY NECESSARY
AND PRACTICAL ONE.  THE ORDINARY PERSON ACCUSED OF CRIME HAS LITTLE IF
ANY KNOWLEDGE OF LAW OR EXPERIENCE IN ITS APPLICATION.  HE IS ILL
PREPARED TO COMBAT THE ARSENAL OF STATUTES, DECISIONS, RULES OF
PROCEDURE, TECHNICALITIES OF PLEADING AND OTHER LEGAL WEAPONS AT THE
READY DISPOSAL OF THE PROSECUTOR.  WITHOUT COUNSEL, MANY OF HIS
ELEMENTARY PROCEDURAL AND SUBSTANTIVE RIGHTS MAY BE LOST IRRETRIEVABLY
IN THE INTRICATE LEGAL MAZE OF A CRIMINAL PROCEEDING.  ESPECIALLY IS
THIS TRUE OF THE IGNORANT, THE INDIGENT, THE ILLITERATE AND THE
IMMATURE DEFENDANT.  POWELL V. ALABAMA, 287 U.S. 45, 69; WILLIAMS V.
KAISER, 323 U.S. 471, 474-476.  COURTS MUST THEREFORE BE UNYIELDING IN
THEIR INSISTENCE THAT THIS BASIC CANON OF JUSTICE, THIS RIGHT TO
COUNSEL, BE RESPECTED AT ALL TIMES. 

TODAY, HOWEVER, A SERIOUS QUALIFICATION IS ADDED TO THIS
CONSTITUTIONAL RIGHT TO WHICH I AM UNABLE TO ASSENT.  PETITIONER AND
TWO OTHERS WERE INDICTED ON MAY 25, 1931, FOR THREE OFFENSES: (1)
ROBBERY IN THE FIRST DEGREE; (2) GRAND LARCENY IN THE SECOND DEGREE;
AND (3) ASSAULT IN THE SECOND DEGREE.  THEY WERE ARRAIGNED ON THE SAME
DAY AND PLEADED NOT GUILTY.  PETITIONER AT THIS TIME WAS BUT 19 YEARS
OLD, INDIGENT, POORLY EDUCATED, ORPHANED AND IGNORANT OF HIS RIGHT TO
COUNSEL.  THE COURT DID NOT INFORM HIM OF HIS RIGHT TO COUNSEL AT THIS
TIME AND IT DOES NOT APPEAR THAT HE COMPETENTLY AND INTELLIGENTLY
WAIVED HIS CONSTITUTIONAL RIGHT.  SEVERAL DAYS LATER, ON JUNE 1,
PETITIONER AGAIN APPEARED WITHOUT COUNSEL AND WITHOUT BEING INFORMED OF
HIS RIGHT IN THAT RESPECT.  THIS TIME HE WITHDREW HIS PLEA OF NOT
GUILTY AND ENTERED A PLEA OF GUILTY TO THE CRIME OF FIRST DEGREE
ROBBERY.  THE PROSECUTOR AGREED TO WITHDRAW THE OTHER CHARGES.  ON JUNE
17, A NOTICE OF APPEARANCE OF COUNSEL ON BEHALF OF PETITIONER WAS
FILED.  AND ON JUNE 19, IN THE PRESENCE OF THIS COUNSEL, PETITIONER WAS
SENTENCED TO SERVE FROM 15 TO 30 YEARS IN PRISON.  ON THE BASIS OF
THESE FACTS, THE COURT NOW HOLDS THAT PETITIONER WAS ADEQUATELY
REPRESENTED BY COUNSEL.  THE ERROR MANIFEST IN THE DENIAL OF THE RIGHT
OF COUNSEL DURING THE ARRAIGNMENT AND THE PLEA OF GUILTY IS HELD CURED
BY THE MERE PRESENCE OF COUNSEL ON THE DAY OF THE IMPOSITION OF THE
SENTENCE. 

IT IS SAID THAT, AT LEAST UNDER NEW YORK PRACTICE, THE ATTORNEY ON
THE DAY OF THE SENTENCING COULD HAVE MOVED TO WITHDRAW PETITIONER'S
PLEA OF GUILTY; THE JUDGE WOULD THEN HAVE HAD POWER TO SET ASIDE THE
PLEA AND LET THE PETITIONER STAND TRIAL.  ON THE ASSUMPTION THAT THE
JUDGE WOULD HAVE GRANTED SUCH A MOTION HAD IT BEEN MADE, THE ARGUMENT
IS ADVANCED THAT PETITIONER HAD COUNSEL IN AMPLE TIME TO TAKE ADVANTAGE
OF EVERY DEFENSE ORIGINALLY AVAILABLE.  THUS THE CONCLUSION IS REACHED
THAT THIS DENIAL OF THE RIGHT TO COUNSEL PRIOR TO THE IMPOSITION OF
SENTENCE IS IN COMPLIANCE WITH THE CONSTITUTION. 

IN MY OPINION, HOWEVER, THE RIGHT TO COUNSEL MEANS NOTHING UNLESS IT
MEANS THE RIGHT TO COUNSEL AT EACH AND EVERY STEP IN A CRIMINAL
PROCEEDING.  THE FAILURE AT ANY PARTICULAR POINT TO HAVE REPRESENTATION
OR TO BE AWARE OF ONE'S RIGHT TO COUNSEL MAY HAVE AN INDELIBLE AND
IMPONDERABLE EFFECT UPON THE ENTIRE PROCEEDING, AN EFFECT WHICH MAY NOT
BE ERASABLE ON THE DAY OF IMPOSING THE SENTENCE.  AS WAS SAID IN
GLASSER V. UNITED STATES, 315 U.S. 60, 76, "THE RIGHT TO HAVE THE
ASSISTANCE OF COUNSEL IS TOO FUNDAMENTAL AND ABSOLUTE TO ALLOW COURTS
TO INDULGE IN NICE CALCULATIONS AS TO THE AMOUNT OF PREJUDICE ARISING
FROM ITS DENIAL."  SO HERE WE CANNOT ASSUME OR DETERMINE THAT THE
DENIAL OF COUNSEL AT THE TIME OF THE ARRAIGNMENT AND PLEA WAS
HARMLESS.  NOR CAN WE SAY WITH CERTAINTY THAT THE PRESENCE OF COUNSEL
AT THE FINAL STAGE OF THE PROCEEDING WAS SUFFICIENT TO COUNTERACT THE
PREJUDICE INHERENT IN THE PRIOR DENIAL OF COUNSEL.  UNLESS ALL THE
EFFECTS OF SUCH A CONSTITUTIONAL INFIRMITY ARE COMPLETELY AND
UNQUESTIONABLY ELIMINATED, A CONVICTION CANNOT STAND.  AN ELIMINATION
OF THAT NATURE ORDINARILY, AND PARTICULARLY IN THIS CASE, MEANS A NEW
PROCEEDING IN WHICH THE RIGHT TO COUNSEL IS FULLY PROTECTED AT ALL
TIMES. 

IT IS FURTHER SIGNIFICANT THAT THE FAILURE OF THE TRIAL COURT TO
INFORM THE PETITIONER OF HIS RIGHT TO COUNSEL WAS IN VIOLATION NOT ONLY
OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BUT ALSO OF
ARTICLE 1, SEC. 6, OF THE NEW YORK CONSTITUTION AND OF SECS. 8, 188,
308 AND 309 OF THE NEW YORK CODE OF CRIMINAL PROCEDURE.  THE
ARRAIGNMENT AND THE PLEA OF GUILTY WERE THEREBY VITIATED, FROM WHICH IT
FOLLOWS THAT THE CONVICTION WAS INCONSISTENT WITH DUE PROCESS OF LAW. 
SEE JOHNSON V. ZERBST, 304 U.S. 458, 468; WALEY V. JOHNSTON, 316 U.S.
101, 104.   THE LACK OF DUE PROCESS IN THE CONVICTION WAS UNAFFECTED BY
THE POSSIBILITY THAT THE COUNSEL WHICH PETITIONER EVENTUALLY OBTAINED
MIGHT HAVE SUCCESSFULLY MOVED TO VACATE THE VOID PLEA OF GUILTY. 
CONSTITUTIONAL RIGHTS AS WELL AS DUE PROCESS REQUIREMENTS REST UPON
SOMETHING MORE SUBSTANTIAL THAN WHAT MIGHT HAVE BEEN BUT WAS NOT DONE. 
THE INESCAPABLE FACTS CONFRONTING US ARE THAT PETITIONER WAS DENIED THE
RIGHT TO COUNSEL AND THAT THE COURT'S JUDGMENT WAS BASED UPON AN
ILLEGAL ARRAIGNMENT AND PLEA.  COUNSEL'S NEGLIGENCE IN FAILING TO MOVE
TO SET ASIDE THAT PLEA SHOULD NOT BLIND US TO THOSE FACTS; NOR CAN IT
INVEST THE PROCEEDING WITH THE DUE PROCESS WHICH IT OTHERWISE LACKED. 

MOREOVER, EVEN HAD PETITIONER'S COUNSEL BEEN SUCCESSFUL IN MAKING
SUCH A MOTION, THE EFFECT OF THE ILLEGAL PLEA MIGHT NOT HAVE BEEN
DISSIPATED.  UNDER NEW YORK LAW, A PLEA OF GUILTY WHICH IS WITHDRAWN
MAY SUBSEQUENTLY BE ADMITTED IN EVIDENCE AT THE TRIAL.  PEOPLE V.
STEINMETZ, 240 N.Y. 411, 148 N.E. 597.  AND EVEN THOUGH SUCH A PRACTICE
MIGHT BE OF DOUBTFUL CONSTITUTIONALITY UNDER THESE CIRCUMSTANCES, THE
POSSIBILITY OF ITS OCCURRENCE MAY HAVE EFFECTIVELY AND UNDERSTANDABLY
DETERRED COUNSEL FROM SEEKING TO SET ASIDE THE PLEA AND SUBJECTING
PETITIONER TO THE RISK OF A GREATER SENTENCE. 

THE DENIAL OF THE PETITIONER'S CONSTITUTIONAL RIGHTS WAS A SERIOUS
MATTER.  UNAIDED BY COUNSEL, HE WAS FACED WITH CHARGES OF THREE
CRIMES.  EACH OF THESE CRIMES INVOLVED DIFFERENT DEGREES.  PETITIONER
WAS NOT COMPETENT TO DECIDE WHETHER HE WAS PROPERLY CHARGED WITH THE
CORRECT DEGREE OF EACH CRIME.  NOR WAS HE COMPETENT TO DETERMINE
WHETHER TO PLEAD GUILTY TO ANY OR ALL OF THE OFFENSES.  THOSE WERE
COMPLEX LEGAL PROBLEMS AS TO WHICH PETITIONER DESERVED LEGAL AID.  YET
THAT NECESSARY AID WAS DENIED HIM.  NOTHING HAPPENED ON THE DAY OF
SENTENCING, MOREOVER, TO NEGATIVE THAT FACT.  TO SUSTAIN HIS CONVICTION
THEREFORE FAILS TO GIVE PETITIONER THE HIGH DEGREE OF PROTECTION WHICH
HIS CONSTITUTIONAL RIGHT TO COUNSEL DESERVES. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I AGREE WITH MY BROTHER MURPHY THAT THE JUDGMENT SHOULD BE REVERSED
AND JOIN SUBSTANTIALLY IN HIS OPINION. 

MY CONCLUSION RESTS SQUARELY UPON THE FACT, AS I UNDERSTAND THE
RECORD AND THE LAW OF NEW YORK, THAT UNDER THAT LAW A WITHDRAWN PLEA OF
GUILTY IS ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED AT HIS LATER
TRIAL.  PEOPLE V. STEINMETZ, 240 N.Y. 411, 148 N.E. 597.  I HAVE
HERETOFORE EXPRESSED MY REASONS FOR THINKING THAT SUCH A PROCEDURE
INVOLVES A SPECIES OF SELF-INCRIMINATION.  WOOD V. UNITED STATES, 75
U.S. APP. D.C. 274, 128 F.2D 265.  THAT QUESTION HOWEVER HAS NOT BEEN
DETERMINED HERE, ALTHOUGH IT HAS BEEN HELD ON NONCONSTITUTIONAL GROUNDS
THAT IN A FEDERAL COURT A WITHDRAWN PLEA OF GUILTY IS NOT ADMISSIBLE. 
KERCHEVAL V. UNITED STATES, 274 U.S. 220.  NOR HAS THIS COURT DECIDED
WHETHER SUCH A PROCEDURE FOLLOWED IN A STATE COURT WOULD BE IN
VIOLATION OF ANY CONSTITUTIONAL PROVISION. 

IN THE SETTING OF THE FACTS IN THIS CASE THE SIGNIFICANCE OF THE NEW
YORK RULE IS THAT THE RULE ITSELF MADE IT IMPOSSIBLE FOR THE FULL
EFFECTS OF PETITIONER'S INVALID PLEA OF GUILTY TO BE WIPED OUT EVEN
THROUGH A SUCCESSFUL MOTION FOR WITHDRAWAL, HAD ONE BEEN MADE BY
PETITIONER'S ATTORNEY AFTER HIS APPEARANCE IN THE CAUSE FOLLOWING THE
PLEA AND SHORTLY BEFORE SENTENCE. 

IT IS NOT AT ALL CERTAIN THAT THE MOTION WOULD HAVE BEEN SUCCESSFUL. 
HAD IT BEEN MADE AND GRANTED, PETITIONER BY THE STATE'S LAW WOULD HAVE
BEEN CONFRONTED WITH THE NECESSITY OF OVERCOMING BY PROOF THE
INCRIMINATING EFFECT OF HIS PRIOR PLEA.  HIS BURDEN OF DEFENSE THUS
INCREASED NOT ONLY WOULD HAVE BEEN GREATER THAN IF THE INVALID PLEA HAD
NOT BEEN MADE.  IT WOULD HAVE GONE FAR TO DESTROY THE PRESUMPTION OF
INNOCENCE TO WHICH HE WAS ENTITLED UNTIL OTHERWISE AND LAWFULLY PROVED
GUILTY.  FINALLY HIS LAWYER PRESUMABLY WOULD HAVE BEEN COGNIZANT OF
THESE FACTS.  IMAGINATION NEED NOT BE STRETCHED TO BELIEVE THAT EVEN
THE MOST COMPETENT ATTORNEY, CONFRONTED WITH SUCH A SITUATION, MIGHT
HAVE CHOSEN TO ADVISE AGAINST MOVING TO WITHDRAW THE PLEA RATHER THAN
UNDERTAKING THE HEAVY BURDEN OF MEETING IT BY PROOF AT THE TRIAL. 

IN MY OPINION THE DAMAGE DONE BY THE ORIGINAL INVALID PLEA WAS NOT
REMOVED BY THE ATTORNEY'S ELEVENTH-HOUR ENTRY NOR COULD IT HAVE BEEN AT
THAT TIME, FULLY AND EFFECTIVELY, IN VIEW OF THE EXISTING STATE OF THE
LAW AND THE FACTS.  ACCORDINGLY, I THINK THERE WAS NO EFFECTIVE WAIVER
THROUGH THE LATE ENTRANCE OF COUNSEL AND HIS HAMPERED ADVICE, WHICH AS
I UNDERSTAND IS THE ONLY BASIS FOR THE COURT'S DECISION.  THERE WAS NO
CHOICE BUT HOBSON'S.
..END :





CASE V. BOWLES, 327 U.S. 92 


NO. 261.  ARGUED JANUARY 10, 1946.  - DECIDED FEBRUARY 4, 1946.  - 149
F.2D 777, AFFIRMED. 


1.  THE EMERGENCY PRICE CONTROL ACT APPLIES TO THE SALE BY THE STATE
OF WASHINGTON OF TIMBER GROWING ON LANDS GRANTED BY CONGRESS TO THE
STATE "FOR THE SUPPORT OF COMMON SCHOOLS," NOTWITHSTANDING A PROVISION
IN THE ENABLING ACT PROVIDING THAT THESE LANDS SHALL "BE DISPOSED OF
ONLY AT PUBLIC SALE, AND AT A PRICE NOT LESS THAN" $10 PER ACRE AND A
PROVISION OF THE STATE CONSTITUTION THAT THESE LANDS SHALL NOT BE SOLD
EXCEPT "AT PUBLIC AUCTION TO THE HIGHEST BIDDER" AT A PRICE NOT LESS
THAN THE FULL MARKET VALUE FOUND AFTER APPRAISAL OR "THE PRICE
PRESCRIBED IN THE GRANT" OF THESE LANDS.  P. 98. 

2.  THE EMERGENCY PRICE CONTROL ACT APPLIES GENERALLY TO SALES OF
COMMODITIES BY THE STATES.  P. 98. 

(A)  THE DEFINITION IN SEC. 302(H) MAKING THE ACT APPLICABLE TO THE
UNITED STATES "OR ANY OTHER GOVERNMENT, OR ANY OF ITS POLITICAL
SUBDIVISIONS, OR ANY AGENCY OF THE FOREGOING," CLEARLY IS BROAD ENOUGH
TO INCLUDE THE STATES.  P. 98. 

(B)  IT WOULD FRUSTRATE THE PURPOSES OF THE ACT FOR THE COURTS TO
READ EXEMPTIONS INTO IT WHICH CONGRESS DID NOT SEE FIT TO PUT IN THE
LANGUAGE, SINCE EXCESSIVE PRICES FOR RENTS OR COMMODITIES CHARGED BY A
STATE WOULD PRODUCE EXACTLY THE SAME CONDITIONS AS WOULD BE PRODUCED
WERE THESE PRICES CHARGED BY OTHERS.  P. 99. 

3.  A SPECIAL EXEMPTION CAN NOT BE READ INTO THE ACT IN ORDER TO
PERMIT STATES HOLDING LAND GRANTED FOR SCHOOL PURPOSES TO CHARGE MORE
THAN THE CEILING PRICE SET FOR TIMBER.  P. 100. 

WHILE CONGRESSIONAL GRANTS OF LAND TO THE STATES FOR SCHOOL PURPOSES
TRANSFERRED EXCLUSIVE OWNERSHIP AND CONTROL OVER THOSE LANDS TO THE
STATES, NO PART OF ALL THE HISTORY CONCERNING THESE GRANTS INDICATES A
PURPOSE ON THE PART OF CONGRESS TO ENTER INTO A PERMANENT AGREEMENT
WITH THE STATES UNDER WHICH THEY WOULD BE FREE TO USE THE LANDS IN A
MANNER WHICH WOULD CONFLICT WITH VALID LEGISLATION ENACTED BY CONGRESS
IN THE NATIONAL INTEREST.  P. 100. 

4.  AS THUS CONSTRUED, THE ACT IS CONSTITUTIONAL.  P. 100. 

(A)  WHILE THE STATE DOES HAVE POWER TO OWN AND CONTROL THE SCHOOL
LANDS HERE INVOLVED AND TO SELL THE LANDS OR THE TIMBER GROWING ON
THEM, THIS POWER IS SUBORDINATE TO THE POWER OF CONGRESS TO FIX MAXIMUM
PRICES IN ORDER TO CARRY ON WAR.  P. 101. 

(B)  TO HOLD OTHERWISE WOULD IMPAIR THE CONSTITUTIONAL GRANT OF POWER
TO MAKE WAR, WHICH WAS A PRIME PURPOSE OF THE FEDERAL GOVERNMENT'S
ESTABLISHMENT.  P. 102. 

(C)  THE TENTH AMENDMENT DOES NOT OPERATE AS A LIMITATION UPON THE
POWERS, EXPRESS OR IMPLIED, DELEGATED TO THE NATIONAL GOVERNMENT.  P.
102. 

5.  SECTION 201(A) OF THE EMERGENCY PRICE CONTROL ACT SPECIFICALLY
EMPOWERS THE PRICE ADMINISTRATOR TO COMMENCE SUITS TO ENJOIN VIOLATIONS
OF THAT ACT AND AUTHORIZES ATTORNEYS EMPLOYED BY HIM TO REPRESENT HIM
IN SUCH SUITS.  THEREFORE, 28 U.S.C. SEC. 485, MAKING IT THE DUTY OF
DISTRICT ATTORNEYS TO PROSECUTE MOST CIVIL ACTIONS TO WHICH THE UNITED
STATES IS A PARTY, IS NOT APPLICABLE TO SUCH PROCEEDINGS.  P. 96. 

6.  WHERE THE COMPLAINT IN A SUIT AGAINST A STATE OFFICER TO ENJOIN
VIOLATIONS OF THE EMERGENCY PRICE CONTROL ACT DOES NOT CHALLENGE THE
CONSTITUTIONALITY OF THE STATE STATUTE BUT MERELY ALLEGES THAT ITS
ENFORCEMENT WOULD VIOLATE THE EMERGENCY PRICE CONTROL ACT, SEC. 266 OF
THE JUDICIAL CODE DOES NOT REQUIRE THAT THE CASE BE TRIED BY A THREE
JUDGE COURT.  P. 97. 

7.  NEITHER ART. III, SEC. 2, CL. 2, OF THE CONSTITUTION, GIVING THIS
COURT ORIGINAL JURISDICTION OF ALL CASES IN WHICH A STATE IS A PARTY,
NOR SEC. 233 OF THE JUDICIAL CODE, GIVING THIS COURT EXCLUSIVE
JURISDICTION TO TRY CASES BETWEEN A STATE AND THE UNITED STATES,
PREVENTS A DISTRICT COURT FROM HAVING JURISDICTION TO TRY SUITS TO
ENJOIN STATE OFFICERS FROM VIOLATING THE EMERGENCY PRICE CONTROL ACT. 
P. 97. 

(A)  CONSISTENTLY WITH ART. III OF THE CONSTITUTION, CONGRESS CAN
GIVE THE DISTRICT COURTS JURISDICTION TO TRY CONTROVERSIES BETWEEN A
STATE AND THE UNITED STATES.  P. 97. 

(B)  SECTION 205(C) OF THE EMERGENCY PRICE CONTROL ACT SPECIFICALLY
GIVES THE DISTRICT COURTS JURISDICTION OVER ALL ENFORCEMENT SUITS AND
SUPERSEDES SEC. 233 OF THE JUDICIAL CODE TO THAT EXTENT.  P. 97. 

8.  WHILE THE EMERGENCY PRICE CONTROL ACT DENIES A DEFENDANT IN AN
ENFORCEMENT PROCEEDING THE RIGHT TO CHALLENGE THE VALIDITY OF THE
REGULATION SOUGHT TO BE ENFORCED (SINCE EXCLUSIVE INITIAL JURISDICTION
TO DETERMINE THIS QUESTION IS VESTED IN THE EMERGENCY COURT OF
APPEALS), IT DOES NOT DENY HIM THE RIGHT TO ATTACK THE ACT ITSELF ON
CONSTITUTIONAL GROUNDS.  P. 98. 

9.  IN REVIEWING A JUDGMENT IN AN ENFORCEMENT PROCEEDING, THIS COURT
ORDINARILY WOULD NOT PASS ON THE STATUTORY AUTHORITY OF THE PRICE
ADMINISTRATOR TO PROMULGATE A REGULATION, SINCE CONGRESS HAS GRANTED
EXCLUSIVE INITIAL JURISDICTION TO DETERMINE THAT QUESTION TO THE
EMERGENCY COURT OF APPEALS.  P. 98. 

10.  IT WILL DO SO, HOWEVER, WHERE THE RIGHT OF CONGRESS TO REGULATE
CERTAIN PRICES IS CHALLENGED ON CONSTITUTIONAL GROUNDS, IF IT IS NOT A
DEVICE TO ATTACK THE REGULATIONS INDIRECTLY.  P. 98. 

CASE, COMMISSIONER OF PUBLIC LANDS OF THE STATE OF WASHINGTON, V.
BOWLES, PRICE ADMINISTRATOR, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

AFTER LITIGATION INSTITUTED IN A STATE COURT BY THE BIDDERS FOR
CERTAIN TIMBER ON SCHOOL LANDS OF THE STATE OF WASHINGTON HAD RESULTED
IN A HOLDING BY THE STATE SUPREME COURT THAT THE EMERGENCY PRICE
CONTROL ACT DID NOT BAR THE SALE OF SCHOOL-LAND TIMBER AT A PRICE ABOVE
THE CEILING FIXED PURSUANT TO THAT ACT, SOUNDVIEW PULP CO. V. TAYLOR,
21 WASH.2D 261, THE PRICE ADMINISTRATOR INSTITUTED SUIT IN A FEDERAL
DISTRICT COURT TO ENJOIN THE STATE COMMISSIONER OF PUBLIC LANDS AND THE
SUCCESSFUL BIDDER AT A PUBLIC AUCTION FROM COMPLETING A SALE OF SCHOOL
LAND TIMBER AT A PRICE ABOVE THE CEILING FIXED BY MAXIMUM PRICE
REGULATION NO. 460, 8 FED. REG. 11850, AS AMENDED, 8 FED. REG. 13023. 
THE DISTRICT COURT DENIED THE INJUNCTION AND DISMISSED THE COMPLAINT. 
THE CIRCUIT COURT OF APPEALS REVERSED.  149 F.2D 777.  THIS COURT
GRANTED CERTIORARI.  326 U.S. 706.  AFFIRMED, P. 103. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE CONGRESSIONAL ENABLING ACT PROVIDING FOR THE STATE OF
WASHINGTON'S ADMISSION TO THE UNION GRANTED CERTAIN LANDS TO THAT STATE
"FOR THE SUPPORT OF COMMON SCHOOLS."  25 STAT. 676, 679.  SECTION 11 OF
THE ENABLING ACT PROVIDED THAT THESE LANDS SHOULD "BE DISPOSED OF ONLY
AT PUBLIC SALE, AND AT A PRICE NOT LESS THAN TEN DOLLARS PER ACRE
..."  THE STATE CONSTITUTION PROVIDES THAT THESE LANDS SHALL NOT BE
SOLD EXCEPT "AT PUBLIC AUCTION TO THE HIGHEST BIDDER" AT A PRICE WHICH
MAY NOT BE BELOW BOTH THE FULL MARKET VALUE FOUND AFTER APPRAISAL AND
"THE PRICE PRESCRIBED IN THE GRANT" OF THESE LANDS.  IN 1943 THE STATE
COMMISSIONER OF PUBLIC LANDS HELD A PUBLIC AUCTION FOR THE SALE OF
TIMBER ON SCHOOL LANDS.  AT THAT AUCTION THE SOUNDVIEW PULP COMPANY,
ONE OF THE RESPONDENTS, BID $86,335.39 FOR SOME OF THE TIMBER.  THIS
AMOUNT EXCEEDED BY APPROXIMATELY $9,000.00 THE CEILING PRICE FIXED BY
MAXIMUM PRICE REGULATION NO. 460.  FN1  THE PRICE ADMINISTRATOR ADVISED
SOUNDVIEW THAT CONSUMMATION OF THE SALE AT THE BID PRICE WOULD
CONSTITUTE A VIOLATION OF THE REGULATION AND OF THE EMERGENCY PRICE
CONTROL ACT.  FN2  THEREAFTER SOUNDVIEW AND THE UNSUCCESSFUL BIDDER,
COOS BAY PULP CORPORATION, COMMENCED ACTIONS IN THE STATE COURTS,
SEEKING AN ADJUDICATION AS TO THE LEGALITY OF SOUNDVIEW'S BID AND OF
THE PROPOSED TRANSFER OF TIMBER TO SOUNDVIEW.  THIS RESULTED IN A
HOLDING BY THE STATE SUPREME COURT THAT THE EMERGENCY PRICE CONTROL ACT
DID NOT BAR THE SALE OF SCHOOL-LAND TIMBER AT PRICES ABOVE THE
CEILING.  SOUNDVIEW PULP CO. V. TAYLOR, 21 WASH.2D 261, 150 P.2D 839. 
WHEN, AFTER THIS JUDGMENT WAS RENDERED, THE PARTIES WERE ABOUT TO
COMPLETE THE SALE, THE PRICE ADMINISTRATOR COMMENCED THIS ACTION IN THE
FEDERAL DISTRICT COURT TO ENJOIN THE STATE COMMISSIONER OF PUBLIC LANDS
AND SOUNDVIEW FROM COMPLETING THE TIMBER TRANSACTION AT A PRICE ABOVE
THE CEILING FIXED BY THE REGULATION.  THE DISTRICT COURT HELD THAT THE
EMERGENCY PRICE CONTROL ACT DID NOT GRANT THE PRICE ADMINISTRATOR
AUTHORITY TO SET MAXIMUM PRICES FOR SCHOOL-LAND TIMBER SOLD BY THE
STATE.  THE CIRCUIT COURT OF APPEALS REVERSED.  149 F.2D 777.  BECAUSE
THE CIRCUIT COURT'S DECISION CONFLICTED WITH THAT OF THE SUPREME COURT
OF IDAHO IN TWIN FALLS COUNTY V. HULBERT, 66 IDAHO - , 156 P.2D 319, WE
GRANTED CERTIORARI IN BOTH CASES. 

BEFORE CONSIDERING THE PRINCIPAL QUESTIONS RAISED BY THE STATE, WE
SHALL AT THE OUTSET BRIEFLY DISPOSE OF CERTAIN PROCEDURAL CONTENTIONS. 
THE STATE URGES THAT THE COMPLAINT SHOULD HAVE BEEN DISMISSED BECAUSE
IT WAS SIGNED BY ATTORNEYS EMPLOYED BY THE PRICE ADMINISTRATOR AND NOT
BY THE DISTRICT ATTORNEY OR MEMBERS OF THE DEPARTMENT OF JUSTICE. 
TRUE, 28 U.S.C. 485 MAKES IT THE DUTY OF EVERY DISTRICT ATTORNEY TO
PROSECUTE MOST CIVIL ACTIONS TO WHICH THE UNITED STATES IS A PARTY. 
BUT THIS SECTION DOES NOT PRESCRIBE THE PROCEDURE UNDER THE EMERGENCY
PRICE CONTROL ACT, FOR THAT ACT SPECIFICALLY EMPOWERS THE ADMINISTRATOR
TO COMMENCE ACTIONS SUCH AS THIS ONE AND AUTHORIZES ATTORNEYS EMPLOYED
BY HIM TO REPRESENT HIM IN SUCH ACTIONS.  SEC. 201(A).  THE STATE
CONTENDS FURTHER THAT THIS CASE SHOULD HAVE BEEN TRIED BY A DISTRICT
COURT COMPOSED OF THREE JUDGES BECAUSE SEC. 266 OF THE JUDICIAL CODE
REQUIRES SUCH A PROCEEDING WHENEVER ENFORCEMENT OF A STATE STATUTE IS
SOUGHT TO BE ENJOINED ON THE GROUND THAT THE STATUTE IS
UNCONSTITUTIONAL.  BUT HERE THE COMPLAINT DID NOT CHALLENGE THE
CONSTITUTIONALITY OF THE STATE STATUTE BUT ALLEGED MERELY THAT ITS
ENFORCEMENT WOULD VIOLATE THE EMERGENCY PRICE CONTROL ACT. 
CONSEQUENTLY A THREE-JUDGE COURT IS NOT REQUIRED.  EX PARTE BRANSFORD,
310 U.S. 354, 358-359; QUERY V. UNITED STATES, 316 U.S. 486, 488-489. 
ANOTHER PROCEDURAL POINT URGED BY THE STATE IS THAT SINCE THIS IS IN
EFFECT A CONTROVERSY BETWEEN THE UNITED STATES AND THE STATE OF
WASHINGTON, THE UNITED STATES SUPREME COURT HAS EXCLUSIVE JURISDICTION
UNDER ARTICLE III, SEC. 2, CLAUSE 2, OF THE UNITED STATES CONSTITUTION
AND THE DISTRICT COURT LACKED POWER TO TRY THE CASE.  BUT IT IS WELL
SETTLED THAT DESPITE ARTICLE III, CONGRESS CAN GIVE THE DISTRICT COURTS
JURISDICTION TO TRY CONTROVERSIES BETWEEN A STATE AND THE UNITED
STATES.  FN3  CONGRESS HAS GIVEN THE DISTRICT COURT POWER TO TRY CASES
SUCH AS THIS ONE.  WHILE SEC. 233 OF THE JUDICIAL CODE DOES GIVE THIS
COURT EXCLUSIVE JURISDICTION TO TRY CASES BETWEEN A STATE AND THE
UNITED STATES, SEC. 205(C) OF THE EMERGENCY PRICE CONTROL ACT
SPECIFICALLY PROVIDES THAT THE DISTRICT COURT SHALL HAVE JURISDICTION
OVER ALL ENFORCEMENT SUITS.  TO THAT EXTENT SEC. 205(C) OF THE PRICE
CONTROL ACT SUPERSEDES SEC. 233 OF THE JUDICIAL CODE.  UNITED STATES V.
CALIFORNIA, 297 U.S. 175, 186. 

THE STATE'S PRINCIPAL CONTENTION IS THAT SALES BY A STATE, SUCH AS
THE ONE HERE INVOLVED, ARE NOT AND CANNOT BE MADE SUBJECT TO PRICE
CONTROL.  MAXIMUM PRICE REGULATION NO. 460, WHICH THE STATE'S SALE OF
TIMBER ALLEGEDLY VIOLATED, SPECIFICALLY PROVIDES THAT IT IS APPLICABLE
TO SALES BY STATES.  THE STATE MAKES THE FOLLOWING CONTENTIONS:  (1)
INSOFAR AS THE REGULATION APPLIES TO STATE SALES IT IS UNAUTHORIZED BY
THE EMERGENCY PRICE CONTROL ACT, SINCE CONGRESS DID NOT INTEND THAT ACT
TO APPLY TO STATES.  (2) EVEN IF THE ACT WAS INTENDED TO APPLY TO STATE
SALES, THE ACT SHOULD NOT BE CONSTRUED AS AUTHORIZING THE PRICE
ADMINISTRATOR TO FIX A MAXIMUM PRICE AT WHICH TIMBER ON SCHOOL-LAND
GRANTS CAN BE SOLD BY STATES.  (3) IF THE ACT IS SO CONSTRUED, IT
VIOLATES THE FIFTH AND TENTH AMENDMENTS TO THE CONSTITUTION. 

WE ORDINARILY WOULD NOT PASS ON THE STATUTORY AUTHORITY OF THE
ADMINISTRATOR TO PROMULGATE THE REGULATION IN A PROCEEDING SUCH AS THIS
ONE.  FOR CONGRESS HAS GRANTED EXCLUSIVE INITIAL JURISDICTION TO
DETERMINE THIS QUESTION TO THE EMERGENCY COURT OF APPEALS.  LOCKERTY V.
PHILLIPS, 319 U.S. 182.  BUT WHILE THE ACT THUS DENIES A DEFENDANT IN
AN ENFORCEMENT PROCEEDING THE RIGHT TO CHALLENGE THE VALIDITY OF THE
REGULATION, IT DOES NOT DENY HIM THE RIGHT TO ATTACK THE EMERGENCY
PRICE CONTROL ACT ITSELF ON CONSTITUTIONAL GROUNDS.  YAKUS V. UNITED
STATES, 321 U.S. 414, 430.  OF COURSE, THIS RIGHT MAY NOT BE UTILIZED
AS A MEANS OF INDIRECTLY ATTACKING THE REGULATIONS THEMSELVES INSTEAD
OF THE STATUTE.  BUT HERE PETITIONER'S THIRD CONTENTION THAT CONGRESS
LACKS AUTHORITY TO REGULATE THE PRICES OF STATE SCHOOL-LAND TIMBER
EXTENDS BEYOND THE IMPLEMENTING REGULATION AND STRIKES AT THE ACT
ITSELF.  IN ORDER TO REACH THIS CONSTITUTIONAL QUESTION, WE FIRST HAVE
TO DECIDE WHETHER THE ACT, PROPERLY INTERPRETED, IS APPLICABLE TO SALES
BY STATES, INCLUDING SALES OF TIMBER ON SCHOOL-GRANT LANDS. 

THE EMERGENCY PRICE CONTROL ACT GRANTS TO THE PRICE ADMINISTRATOR
BROAD POWERS TO SET MAXIMUM PRICES FOR COMMODITIES AND RENTS AND MAKES
IT UNLAWFUL FOR "ANY PERSON" TO VIOLATE THESE MAXIMUM PRICE
REGULATIONS.  SECTION 302(H) DEFINES A "PERSON" AS INCLUDING "AN
INDIVIDUAL, CORPORATION, PARTNERSHIP, ASSOCIATION, OR ANY OTHER
ORGANIZED GROUP OF PERSONS, OR LEGAL SUCCESSOR OR REPRESENTATIVE OF ANY
OF THE FOREGOING, AND INCLUDES THE UNITED STATES OR ANY AGENCY THEREOF,
OR ANY OTHER GOVERNMENT, OR ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY
AGENCY OF ANY OF THE FOREGOING."  THIS LANGUAGE ON ITS FACE, AND GIVEN
ITS ORDINARY MEANING, WOULD APPEAR TO BE BROAD ENOUGH TO INCLUDE ANY
PERSON, NATURAL OR ARTIFICIAL, OR ANY GROUP OR AGENCY, PUBLIC OR
PRIVATE, WHICH SELLS COMMODITIES  FN4  OR CHARGES RENTS.  THE ARGUMENT
THAT THE ACT SHOULD NOT BE CONSTRUED SO AS TO INCLUDE A STATE WITHIN
THE ENUMERATED LIST MADE SUBJECT TO PRICE REGULATION, RESTS LARGELY ON
THE PREMISE THAT CONGRESS DOES NOT ORDINARILY ATTEMPT TO REGULATE STATE
ACTIVITIES AND THAT WE SHOULD NOT INFER SUCH AN INTENTION IN THE
ABSENCE OF PLAIN AND UNEQUIVOCAL LANGUAGE.  PETITIONER PRESSES THIS
CONTENTION SO FAR AS TO URGE US TO ACCEPT AS A GENERAL PRINCIPLE THAT
UNLESS CONGRESS ACTUALLY USES THE WORD "STATE," COURTS SHOULD NOT
CONSTRUE REGULATORY ENACTMENTS AS APPLICABLE TO THE STATES.  THIS COURT
HAS PREVIOUSLY REJECTED SIMILAR ARGUMENTS,  FN5  AND WE CANNOT ACCEPT
SUCH AN ARGUMENT NOW. 

WE THINK IT TOO PLAIN, TO CALL FOR EXTENDED DISCUSSION, THAT CONGRESS
MEANT TO INCLUDE STATES AND THEIR POLITICAL SUBDIVISIONS WHEN IT
EXPRESSLY MADE THE ACT APPLICABLE TO THE UNITED STATES "OR ANY OTHER
GOVERNMENT, OR ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY AGENCY OF ANY
OF THE FOREGOING  ..."  CONGRESS CLEARLY INTENDED TO CONTROL ALL
COMMODITY PRICES AND ALL RENTS WITH CERTAIN SPECIFIC EXCEPTIONS WHICH
IT DECLARED.  IT WOULD FRUSTRATE THIS PURPOSE FOR COURTS TO READ
EXEMPTIONS INTO THE ACT WHICH CONGRESS DID NOT SEE FIT TO PUT IN THE
LANGUAGE.  EXCESSIVE PRICES FOR RENTS OR COMMODITIES CHARGED BY A STATE
OR ITS AGENCIES WOULD PRODUCE EXACTLY THE SAME CONDITIONS AS WOULD BE
PRODUCED WERE THESE PRICES CHARGED BY OTHER PERSONS.  WE, THEREFORE,
HAVE NO DOUBT THAT CONGRESS INTENDED THE ACT TO APPLY GENERALLY TO
SALES OF COMMODITIES BY STATES.  FN6 

NOR CAN WE ACCEPT THE CONTENTION THAT A SPECIAL EXEMPTION COULD BE
READ INTO THE ACT IN ORDER TO PERMIT STATES HOLDING LAND GRANTED FOR
SCHOOL PURPOSES TO CHARGE MORE THAN THE CEILING PRICE SET FOR TIMBER. 
IN REACHING THIS CONCLUSION WE ARE NOT UNAWARE OF THE DIFFICULTIES
WHICH CONFRONTED THE COMMISSIONER OF PUBLIC LANDS OF THE STATE OF
WASHINGTON, NOR OF THE IMPORTANCE OF PROTECTING THE PUBLIC INTEREST IN
THOSE SCHOOL LANDS.  BOTH THE ACT OF CONGRESS, WHICH GRANTED THE LAND
TO WASHINGTON, AND THE CONSTITUTION OF THE STATE, HAD PROVIDED FOR
SAFEGUARDS IN CONNECTION WITH THE DISPOSITION OF SCHOOL LANDS.  WE DO
NOT QUESTION THE WISDOM OF THESE PRECAUTIONS.  WE ARE MINDFUL ALSO OF
THE FACT THAT THIS COURT HAS DECLARED THAT GRANTS OF LAND TO THE STATE,
LIKE THOSE HERE INVOLVED, TRANSFERRED EXCLUSIVE OWNERSHIP AND CONTROL
OVER THOSE LANDS TO THE STATE.  COOPER V. ROBERTS, 18 HOW.  173.  NO
PART OF ALL THE HISTORY CONCERNING THESE GRANTS, HOWEVER, INDICATES A
PURPOSE ON THE PART OF CONGRESS TO ENTER INTO A PERMANENT AGREEMENT
WITH THE STATES UNDER WHICH STATES WOULD BE FREE TO USE THE LANDS IN A
MANNER WHICH WOULD CONFLICT WITH VALID LEGISLATION ENACTED BY CONGRESS
IN THE NATIONAL INTEREST.  HERE AGAIN, THE SALE OF SCHOOL-LAND TIMBER
AT ABOVE-CEILING PRICES COULD BE JUST AS DISTURBING TO THE NATIONAL
INFLATION-CONTROL PROGRAM AS THE CHARGING OF EXCESS PRICES FOR TIMBER
LOCATED ON ANY OTHER LANDS. 

WE NOW TURN TO PETITIONER'S CONSTITUTIONAL CONTENTION.  THOUGH AS WE
HAVE POINTED OUT PETITIONERS HAVE ALLEGED THAT THE ACT APPLIED TO
SETTING A MAXIMUM PRICE FOR SCHOOL-LAND TIMBER VIOLATES THE FIFTH AND
TENTH AMENDMENTS, THE ARGUMENT HERE SEEMS TO SPRING FROM IMPLICATIONS
OF THE TENTH AMENDMENT ONLY.  THE CONTENTION RESTS ON THE PREMISE THAT
THERE IS A DOCTRINE IMPLIED IN THE FEDERAL CONSTITUTION THAT "THE TWO
GOVERNMENTS, NATIONAL AND STATE, ARE EACH TO EXERCISE ITS POWERS SO AS
NOT TO INTERFERE WITH THE FREE AND FULL EXERCISE OF THE POWERS OF THE
OTHER."  IT IS NOT CONTENDED, AND COULD NOT BE UNDER OUR PRIOR
DECISIONS, THAT THE CEILING PRICE FIXED BY THE ADMINISTRATOR IS
CONSTITUTIONALLY INVALID AS APPLIED TO PRIVATELY OWNED TIMBER.  YAKUS
V. UNITED STATES, 321 U.S. 414; BOWLES V. WILLINGHAM, 321 U.S. 503. 
NOR IS IT DENIED THAT THE ADMINISTRATOR COULD HAVE FIXED CEILING PRICES
IF THE STATE HAD ENGAGED IN A SALES BUSINESS "HAVING THE INCIDENTS OF
SIMILAR ENTERPRISES USUALLY PROSECUTED FOR PRIVATE GAIN."  ALLEN V.
REGENTS, 304 U.S. 439, 452.  BUT IT IS ARGUED THAT THE ACT CANNOT BE
APPLIED TO THIS SALE BECAUSE IT WAS "FOR THE PURPOSE OF GAINING REVENUE
TO CARRY OUT AN ESSENTIAL GOVERNMENTAL FUNCTION - THE EDUCATION OF ITS
CITIZENS."  SINCE THE EMERGENCY PRICE CONTROL ACT HAS BEEN SUSTAINED AS
A CONGRESSIONAL EXERCISE OF THE WAR POWER, THE PETITIONER'S ARGUMENT IS
THAT THE EXTENT OF THAT POWER AS APPLIED TO STATE FUNCTIONS DEPENDS ON
WHETHER THESE ARE "ESSENTIAL" TO THE STATE GOVERNMENT.  THE USE OF THE
SAME CRITERION IN MEASURING THE CONSTITUTIONAL POWER OF CONGRESS TO TAX
HAS PROVED TO BE UNWORKABLE, FN7  AND WE REJECT IT AS A GUIDE IN THE
FIELD HERE INVOLVED.  CF. UNITED STATES V. CALIFORNIA, SUPRA, 297 U.S.
AT 183-185.    THE STATE OF WASHINGTON DOES HAVE POWER TO OWN AND
CONTROL THE SCHOOL LANDS HERE INVOLVED AND TO SELL THE LANDS OR THE
TIMBER GROWING ON THEM, SUBJECT TO THE LIMITATIONS SET OUT IN THE
ENABLING ACT.  AND OUR ONLY QUESTION IS WHETHER THE STATE'S POWER TO
MAKE THE SALES MUST BE IN SUBORDINATION TO THE POWER OF CONGRESS TO FIX
MAXIMUM PRICES IN ORDER TO CARRY ON WAR.  FOR REASONS TO WHICH WE HAVE
ALREADY ADVERTED, AN ABSENCE OF FEDERAL POWER TO FIX MAXIMUM PRICES FOR
STATE SALES OR TO CONTROL RENTS CHARGED BY A STATE MIGHT RESULT IN
DEPRIVING CONGRESS OF ABILITY EFFECTIVELY TO PREVENT THE EVIL OF
INFLATION AT WHICH THE ACT WAS AIMED.  THE RESULT WOULD BE THAT THE
CONSTITUTIONAL GRANT OF THE POWER TO MAKE WAR WOULD BE INADEQUATE TO
ACCOMPLISH ITS FULL PURPOSE.  AND THIS RESULT WOULD IMPAIR A PRIME
PURPOSE OF THE FEDERAL GOVERNMENT'S ESTABLISHMENT. 

TO CONSTRUE THE CONSTITUTION AS PREVENTING THIS WOULD BE TO READ IT
AS A SELF-DEFEATING CHARTER.  IT HAS NEVER BEEN SO INTERPRETED.  SINCE
THE DECISION IN MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 420, IT HAS
SELDOM IF EVER BEEN DOUBTED THAT CONGRESS HAS POWER IN ORDER TO ATTAIN
A LEGITIMATE END - THAT IS, TO ACCOMPLISH THE FULL PURPOSE OF A GRANTED
AUTHORITY - TO USE ALL APPROPRIATE MEANS PLAINLY ADAPTED TO THAT END,
UNLESS INCONSISTENT WITH OTHER PARTS OF THE CONSTITUTION.  AND WE HAVE
SAID, THAT THE TENTH AMENDMENT "DOES NOT OPERATE AS A LIMITATION UPON
THE POWERS, EXPRESS OR IMPLIED, DELEGATED TO THE NATIONAL GOVERNMENT." 
FN8 

WHERE, AS HERE, CONGRESS HAS ENACTED LEGISLATION AUTHORIZED BY ITS
GRANTED POWERS, AND WHERE AT THE SAME TIME, A STATE HAS A CONFLICTING
LAW WHICH BUT FOR THE CONGRESSIONAL ACT WOULD BE VALID, THE
CONSTITUTION MARKS THE COURSE FOR COURTS TO FOLLOW.  ARTICLE VI
PROVIDES THAT "THE CONSTITUTION AND THE LAWS OF THE UNITED STATES  ...
MADE IN PURSUANCE THEREOF  ...  SHALL BE THE SUPREME LAW OF THE LAND
..."  FN9  AFFIRMED. 

FN1  8 FED. REG. 11850, AS AMENDED, 8 FED. REG. 13023. 

FN2  56 STAT. 23, 58 STAT. 640; C. 214, 59 STAT. 306. 

FN3  AMES V. KANSAS, 111 U.S. 449; UNITED STATES V. LOUISIANA, 123
U.S. 32; UNITED STATES V. CALIFORNIA, 297 U.S. 175. 

FN4  SECTION 302 OF THE ACT DEFINES "COMMODITY" AS INCLUDING
"SERVICES RENDERED OTHERWISE THAN AS AN EMPLOYEE IN CONNECTION WITH THE
PROCESSING, DISTRIBUTION, STORAGE, INSTALLATION, REPAIR, OR NEGOTIATION
OF PURCHASES OR SALES OF A COMMODITY, OR IN CONNECTION WITH THE
OPERATION OF ANY SERVICE ESTABLISHMENT FOR THE SERVICING OF A
COMMODITY." 

FN5  OHIO V. HELVERING, 292 U.S. 360, 370; UNITED STATES V.
CALIFORNIA, 297 U.S. 175, 186; CALIFORNIA V. UNITED STATES, 320 U.S.
577, 585. 

FN6  THE EMERGENCY COURT OF APPEALS RECENTLY CONSIDERED THE SAME
QUESTION AND REACHED THE SAME CONCLUSION.  DALLAS V. BOWLES, 152 F.2D
464. 

FN7  SEE THE SEVERAL OPINIONS IN NEW YORK V. UNITED STATES, 326 U.S.
572. 

FN8  FERNANDEZ V. WIENER, 326 U.S. 340, 362.  UNITED STATES V. DARBY,
312 U.S. 100, 124; CALIFORNIA V. UNITED STATES, SUPRA; UNITED STATES V.
CALIFORNIA, SUPRA; OKLAHOMA V. ATKINSON CO., 313 U.S. 508, 534-535. 

FN9  FOR APPLICATION OF THIS PRINCIPLE SEE HINES V. DAVIDOVITZ, 312
U.S. 52, 68; STEWART & CO. V. SADRAKULA, 309 U.S. 94, 104. 

MR. JUSTICE DOUGLAS WOULD REVERSE THE JUDGMENT FOR THE REASONS SET
FORTH IN HIS DISSENTING OPINION IN HULBERT V. TWIN FALLS COUNTY, 327
U.S. 105. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :























HULBERT V. TWIN FALLS COUNTY, 327 U.S. 103 


NO. 238.  ARGUED JANUARY 10, 1946.  - DECIDED FEBRUARY 4, 1946.  - 66
IDAHO - , 156 P.2D 319, REVERSED. 


MAXIMUM PRICE REGULATION NO. 133, PROMULGATED BY THE OFFICE OF PRICE
ADMINISTRATION PURSUANT TO THE EMERGENCY PRICE CONTROL ACT, APPLIES TO
A SALE OF A TRACTOR BY A COUNTY.  CASE V. BOWLES, ANTE, P. 92.  P.
104. 

HULBERT ET AL. V. TWIN FALLS COUNTY. 

CERTIORARI TO THE SUPREME COURT OF IDAHO. 

AN IDAHO DISTRICT COURT HELD THE SALE OF A FARM TRACTOR BY A COUNTY
TO BE SUBJECT TO THE EMERGENCY PRICE CONTROL ACT AND MAXIMUM PRICE
REGULATION NO. 133 PROMULGATED PURSUANT THERETO.  THE SUPREME COURT OF
IDAHO REVERSED.  66 IDAHO - , 156 P.2D 319.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 707.  REVERSED, P. 105. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER HULBERT BID $1,050 FOR A USED FARM-TYPE GASOLINE
TRACTOR WHICH TWIN FALLS COUNTY, IDAHO, OFFERED FOR SALE AT AN
AUCTION.  HIS WAS THE HIGHEST BID.  UPON BEING INFORMED BY THE OFFICE
OF PRICE ADMINISTRATION THAT THE AMOUNT BID WAS ABOVE THE CEILING PRICE
OF $723.56, PETITIONER REFUSED TO PAY THE FULL AMOUNT.  HE TENDERED
$723.56 WHICH THE COUNTY REFUSED TO ACCEPT.  THEREUPON THE COUNTY SUED
THE PETITIONER IN THE STATE DISTRICT COURT FOR $1,050.  PETITIONER
TENDERED $1,050 TO BE DISPOSED OF ACCORDING TO THE OUTCOME OF THE
CASE.  HE DEFENDED ON THE GROUND THAT HE HAD BEEN ADVISED BY THE OFFICE
OF PRICE ADMINISTRATION THAT THE REGULATION SETTING A CEILING PRICE WAS
APPLICABLE AND STATED THAT HE WAS WILLING TO PAY ANY SUM UP TO $1,050
WHICH WAS NOT PROHIBITED BY THIS REGULATION.  THE ADMINISTRATOR
INTERVENED, ALLEGING THAT THE BID PRICE EXCEEDED THE CEILING PRICE
FIXED BY MAXIMUM PRICE REGULATION 133  FN1  AND THAT THE REGULATION WAS
APPLICABLE TO THE SALE OF A TRACTOR BY THE COUNTY.  THE COUNTY STATED
THAT PRIOR TO THE SALE IT HAD BEEN ADVISED BY THE COUNTY PROSECUTING
ATTORNEY THAT THE SALE WOULD BE CONTROLLED BY SEC. 30-708 OF THE IDAHO
CODE, ANN., AND THAT THE OFFICE OF PRICE ADMINISTRATION REGULATIONS
WERE INAPPLICABLE.  THE IDAHO DISTRICT COURT HELD THE SALE SUBJECT TO
THE EMERGENCY PRICE CONTROL ACT AND TO REGULATION NO. 133.  THE COURT
GAVE JUDGMENT FOR THE COUNTY FOR THE CEILING PRICE OF $723.56, HOLDING
THAT THE SALE AS TO THE AMOUNT ABOVE THAT CEILING PRICE WAS VOID.  THE
SUPREME COURT OF IDAHO REVERSED.  66 IDAHO - , 156 P.2D 319.  WE
GRANTED CERTIORARI BECAUSE THE SUPREME COURT'S DECISION CONFLICTED WITH
THAT OF THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT IN BOWLES V.
CASE, 149 F.2D 777. 

THE ONLY QUESTION PROPERLY BEFORE US IS WHETHER MAXIMUM PRICE
REGULATION NO. 133 APPLIES TO SALES OF TRACTORS BY A COUNTY.  IN
DEFINING THE TERM "PERSON" THE REGULATION USES THE SAME LANGUAGE AS
SEC. 302(H) OF THE EMERGENCY PRICE CONTROL ACT.  IN CASE V. BOWLES, 327
U.S. 92, WE HELD THAT THAT LANGUAGE MAKES THE ACT APPLICABLE TO SALES
BY STATES AND THEIR SUBDIVISIONS SUCH AS THIS ONE.  FOR THE REASONS SET
OUT IN THAT OPINION, THIS LANGUAGE AS EMPLOYED IN REGULATION NO. 133
MAKES THAT REGULATION APPLICABLE TO THE SALE OF THE TRACTOR BY THE
COUNTY.  REVERSED. 

FN1  7 F.R. 3185, 6936, 7599; 8 F.R. 234. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I THINK JUDGE GIVENS, WRITING FOR THE SUPREME COURT OF IDAHO (66
IDAHO - , 156 P.2D 319), HAS SHOWN THAT IT IS AT LEAST DOUBTFUL IF
CONGRESS MEANT TO INCLUDE THE STATES AS SELLERS UNDER THIS ACT.  FN1  I
THINK THERE IS LITTLE TO ADD TO HIS ANALYSIS EXCEPT TO SAY THAT THE
DOUBT FOR ME IS INCREASED WHEN THE WHOLE SCHEME OF REGULATION IS
CONSIDERED.  WHILE SEC. 302(H) WOULD RELIEVE THE STATES FROM THE
CRIMINAL SANCTIONS OF THE ACT,  FN2  THEY WOULD BE SUBJECT TO THE
TREBLE DAMAGE PROVISIONS OF SEC. 205(E), WHICH ARE REMEDIAL, NOT
PUNITIVE, IN NATURE.  BOWLES V. AMERICAN STORES, 139 F.2D 377, 379. 
AND THE ADMINISTRATOR WOULD HAVE THE POWER UNDER SEC. 205(F)(1) TO
REQUIRE A STATE TO GET A LICENSE FROM HIM IN ORDER TO SELL ITS
COMMODITIES - A LICENSE WHICH WOULD BE SUBJECT TO SUSPENSION.  SEC.
205(F)(2).  THESE ARE SUBSTANTIAL INTRUSIONS ON THE SOVEREIGNTY OF THE
STATES, INVOLVING MATTERS OF GREAT DELICACY.  AND THEY RAISE FOR ME
SERIOUS CONSTITUTIONAL QUESTIONS.  CF. NEW YORK V. UNITED STATES, 326
U.S. 572, 590, DISSENTING OPINION.  SINCE THE ACT IS AT BEST AMBIGUOUS,
I WOULD CHOOSE THE CONSTRUCTION  FN3  WHICH AVOIDED THE CONSTITUTIONAL
ISSUE.  ONLY IN THE EVENT THAT THE LANGUAGE OF THE ACT WAS EXPLICIT
WOULD I ASSUME THAT CONGRESS INTENDED EVEN IN DAYS OF WAR TO INTERFERE
WITH THE TRADITIONAL SOVEREIGNTY OF THE STATES TO THE EXTENT
INDICATED. 

FN1  SEC. 302(H) DEFINES THE TERM "PERSON" AS INCLUDING "AN
INDIVIDUAL, CORPORATION, PARTNERSHIP, ASSOCIATION, OR ANY OTHER
ORGANIZED GROUP OF PERSONS, OR LEGAL SUCCESSOR OR REPRESENTATIVE OF ANY
OF THE FOREGOING, AND INCLUDES THE UNITED STATES OR ANY AGENCY THEREOF,
OR ANY OTHER GOVERNMENT, OR ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY
AGENCY OF ANY OF THE FOREGOING: PROVIDED, THAT NO PUNISHMENT PROVIDED
BY THIS ACT SHALL APPLY TO THE UNITED STATES, OR TO ANY SUCH
GOVERNMENT, POLITICAL SUBDIVISION, OR AGENCY." 

FN2  SEE NOTE 1, SUPRA. 

FN3  A PERMISSIBLE CONSTRUCTION IS THAT THE PHRASE "THE UNITED STATES
...  OR ANY OTHER GOVERNMENT" MEANS THE UNITED STATES OR OTHER
COMPARABLE NATIONAL SOVEREIGNTIES, I.E., FOREIGN GOVERNMENTS. 
..END :















UNITED STATES V. JOHNSON, 327 U.S. 106 


ARGUED JANUARY 2, 1946.  - DECIDED FEBRUARY 4, 1946.  - 149 F.2D 31,
REVERSED. 


1.  WHERE, ON AN APPEAL FROM A DENIAL OF A MOTION FOR A NEW TRIAL ON
THE GROUND OF NEWLY DISCOVERED EVIDENCE UNDER RULE II(3) OF THE
CRIMINAL APPEALS RULES, IT APPEARS THAT THE ONLY OBJECTION IS TO THE
TRIAL COURT'S FINDINGS ON CONFLICTING EVIDENCE AND THAT THERE WAS
EVIDENCE TO SUPPORT ITS FINDINGS, THE APPEAL DOES NOT PRESENT A
REVIEWABLE ISSUE OF LAW; AND THE CIRCUIT COURT OF APPEALS SHOULD, ON
ITS OWN MOTION, DISMISS THE APPEAL AS FRIVOLOUS UNDER RULE IV, WHICH
GIVES THE CIRCUIT COURTS OF APPEALS POWER TO SUPERVISE AND CONTROL ALL
PROCEEDINGS ON APPEAL.  P. 113. 

2.  IT IS IMPORTANT FOR THE ORDERLY ADMINISTRATION OF CRIMINAL
JUSTICE THAT FINDINGS ON CONFLICTING EVIDENCE BY TRIAL COURTS ON
MOTIONS FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE REMAIN
UNDISTURBED, EXCEPT IN MOST EXTRAORDINARY CIRCUMSTANCES.  P. 111. 

3.  IT IS NOT THE PROVINCE OF THIS COURT OR THE CIRCUIT COURTS OF
APPEALS TO REVIEW ORDERS GRANTING OR DENYING MOTIONS FOR A NEW TRIAL
WHEN SUCH REVIEW IS SOUGHT ON THE GROUND THAT THE TRIAL COURT MADE
ERRONEOUS FINDINGS OF FACT AND IT DOES NOT CLEARLY APPEAR THAT THE
FINDINGS ARE NOT SUPPORTED BY ANY EVIDENCE.  P. 111. 

4.  WHILE A DEFENDANT SHOULD BE AFFORDED THE FULL BENEFIT OF A MOTION
FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE UNDER RULE
II(3) OF THE CRIMINAL APPEALS RULES, COURTS SHOULD BE ON THE ALERT TO
SEE THAT THE PRIVILEGE IS NOT ABUSED; AND ONE OF THE MOST EFFECTIVE
METHODS OF PREVENTING ABUSE IS TO REFRAIN FROM REVIEWING FINDINGS OF
FACT WHICH HAVE EVIDENCE TO SUPPORT THEM.  P. 113. 

UNITED STATES V. JOHNSON. 

NO. 115.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.* 

*TOGETHER WITH NO. 116, UNITED STATES V. SOMMERS ET AL., ON
CERTIORARI TO THE SAME COURT.  ARGUED AND DECIDED ON THE SAME DATES. 

RESPONDENTS IN BOTH CASES WERE CONVICTED OF VIOLATIONS OF PENAL
PROVISIONS OF THE REVENUE ACTS AND FOR CONSPIRACY.  THE CIRCUIT COURT
OF APPEALS REVERSED.  123 F.2D 111, 142.  AFTER GRANTING CERTIORARI,
315 U.S. 790, THIS COURT REVERSED AND REMANDED THE CASE TO THE CIRCUIT
COURT OF APPEALS.  319 U.S. 503.  THAT COURT REMANDED THE CASE TO THE
DISTRICT COURT TO PERMIT A MOTION FOR A NEW TRIAL ON THE GROUND OF
NEWLY DISCOVERED EVIDENCE.  THAT MOTION WAS MADE AND DENIED.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  142 F.2D 588.  RESPONDENTS
PETITIONED THIS COURT FOR CERTIORARI, BUT THE PETITION WAS DISMISSED ON
MOTION OF THEIR COUNSEL.  323 U.S. 806.  AFTER OBTAINING A SECOND
REMAND FROM THE CIRCUIT COURT OF APPEALS ON THE GROUND OF STILL FURTHER
NEWLY DISCOVERED EVIDENCE, RESPONDENTS FILED IN THE DISTRICT COURT AN
AMENDED MOTION FOR A NEW TRIAL.  THAT MOTION WAS DENIED.  THE CIRCUIT
COURT OF APPEALS REVERSED.  149 F.2D 31.  THIS COURT GRANTED
CERTIORARI.  326 U.S. 702.  REVERSED AND REMANDED TO THE DISTRICT COURT
TO ENFORCE THE JUDGMENT.  P. 113. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ON OCTOBER 12, 1940, AFTER A FEDERAL DISTRICT COURT TRIAL LASTING
MORE THAN SIX WEEKS, A JURY FOUND RESPONDENT JOHNSON GUILTY OF WILFULLY
ATTEMPTING TO DEFEAT AND EVADE A LARGE PART OF HIS INCOME TAXES FOR THE
CALENDAR YEARS 1936-1939 AND OF CONSPIRING TO DO SO; THE OTHER
RESPONDENTS WERE CONVICTED AND SENTENCED FOR CONSPIRING WITH AND AIDING
AND ABETTING HIM.  FN1  FROM THE TIME OF THESE CONVICTIONS UNTIL NOW,
ENFORCEMENT OF THE SENTENCES WAS DELAYED BY PERSISTENT EFFORTS TO
OBTAIN A NEW TRIAL.  THOUGH THERE HAS BEEN NO SECOND TRIAL THE CASE IS
HERE FOR THE THIRD TIME. 

SEPTEMBER 21, 1941, WAS THE DATE WHEN THE CIRCUIT COURT OF APPEALS
FIRST REVERSED THE CONVICTION, ONE JUDGE DISSENTING.  123 F.2D 111. 
JUNE 7, 1943, WE REVERSED AND REMANDED THE CASE TO THE CIRCUIT COURT OF
APPEALS, 319 U.S. 503.  RESPONDENTS THEN ASKED THAT COURT TO REMAND THE
CASE TO THE TRIAL COURT TO PERMIT A MOTION FOR A NEW TRIAL ON THE
GROUND OF NEWLY DISCOVERED EVIDENCE.  FN2  THE CIRCUIT COURT ACTING
PURSUANT TO RULE II(3) OF THE CRIMINAL APPEALS RULES  FN3 REMANDED THE
CASE AND ON OCTOBER 29, 1943, RESPONDENTS, WITH LEAVE OF THE TRIAL
COURT, FILED A MOTION FOR A NEW TRIAL.  THE RESPONDENTS ALLEGED THAT
THE NEWLY DISCOVERED EVIDENCE PROVED THAT GOLDSTEIN, A GOVERNMENT
WITNESS AT THE TRIAL, WAS UNWORTHY OF BELIEF AND HAD COMMITTED PERJURY
IN TESTIFYING THAT CERTAIN PROPERTIES WERE PURCHASED BY HIM ON BEHALF
OF JOHNSON AND WITH MONEY SUPPLIED BY JOHNSON.  TO SUPPORT THEIR
CHARGES AGAINST GOLDSTEIN RESPONDENTS OFFERED NUMEROUS AFFIDAVITS.  THE
GOVERNMENT FILED AN ANSWER TO THE MOTION AND A NUMBER OF COUNTER
AFFIDAVITS.  AND AMONG THE PAPERS BEFORE THE COURT WERE AFFIDAVITS BY
GOLDSTEIN REAFFIRMING HIS TESTIMONY AT THE TRIAL.  THE TRIAL JUDGE, IN
A CAREFULLY PREPARED OPINION COVERING FIFTY-SIX PAGES OF THE RECORD,
GAVE THOUGHTFUL CONSIDERATION TO EACH AFFIDAVIT, REACHED THE CONCLUSION
THAT NONE OF THEM SHOWED THAT GOLDSTEIN HAD PERJURED HIMSELF, AND FOUND
BOTH FROM THE NEW AFFIDAVITS AND HIS OWN KNOWLEDGE OF THE ORIGINAL SIX
WEEKS TRIAL, THAT GOLDSTEIN'S TESTIMONY WAS TRUE.  THE MOTION FOR A NEW
TRIAL WAS CONSEQUENTLY DENIED. 

THE CIRCUIT COURT OF APPEALS AFFIRMED.  142 F.2D 588.  IT UNANIMOUSLY
HELD THAT IT COULD NOT SUBSTITUTE ITS JUDGMENT ON THE FACTS FOR THAT OF
THE TRIAL JUDGE; THAT IT DID NOT HAVE POWER TO TRY THESE FACTS DE NOVO;
THAT IT COULD REVIEW THE RECORD FOR ERRORS OF LAW, TO DETERMINE, AMONG
OTHER THINGS, WHETHER THE TRIAL JUDGE HAD ABUSED HIS DISCRETION; THAT A
REVIEW OF THE NEW EVIDENCE IN THE RECORD DID NOT INEVITABLY LEAD TO THE
CONCLUSION THAT GOLDSTEIN HAD TESTIFIED FALSELY; THAT THE TRIAL JUDGE
HAD NOT REACHED HIS CONCLUSION "ARBITRARILY, CAPRICIOUSLY, OR IN THE
MISAPPLICATION OF ANY RULE OF LAW" AND HENCE HAD NOT ABUSED HIS
DISCRETION.  THE RESPONDENTS THEREUPON FILED A SECOND PETITION FOR
CERTIORARI IN THIS COURT.  WHILE THIS PETITION WAS PENDING, RESPONDENTS
PRESENTED PAPERS INFORMING US THAT THEY HAD DISCOVERED STILL MORE NEW
EVIDENCE TENDING TO DISCREDIT GOLDSTEIN'S ORIGINAL TESTIMONY.  WE
DEFERRED CONSIDERATION OF THEIR CASE, WHICH WE LATER DISMISSED, 323
U.S. 806, AND THEY, AFTER OBTAINING A SECOND REMAND FROM THE CIRCUIT
COURT OF APPEALS, FILED AN AMENDED MOTION FOR NEW TRIAL IN THE DISTRICT
COURT.  THE TRIAL COURT AGAIN WROTE AN OPINION ANALYZING EACH NEW
AFFIDAVIT IN DETAIL.  THESE ADDITIONAL AFFIDAVITS CONTAINED STATEMENTS
WHICH, HAD THEY BEEN OFFERED AS TESTIMONY AT THE ORIGINAL TRIAL, WOULD
HAVE BEEN ADMISSIBLE AND RELEVANT TO DISCREDIT GOLDSTEIN'S AND BUTTRESS
JOHNSON'S TESTIMONY.  AT LEAST SOME OF THE FACTS SET OUT IN THE
AFFIDAVITS HAD NOT BEEN DISCOVERED UNTIL SHORTLY BEFORE THE AMENDED
MOTION WAS MADE.  BUT THE TRIAL COURT CONCLUDED THAT THE NEW AFFIDAVITS
FAILED TO PROVE THAT GOLDSTEIN HAD COMMITTED PERJURY, AND THAT
CONSEQUENTLY THE BASIC GROUND FOR THE MOTION - THAT THERE WAS NEW
EVIDENCE SHOWING THAT GOLDSTEIN HAD PERJURED HIMSELF - WAS WITHOUT
FOUNDATION.  FN4 THAT COURT FOUND AGAIN THAT THE NEW AND OLD EVIDENCE
TAKEN TOGETHER AFFIRMATIVELY SHOWED THAT GOLDSTEIN HAD BEEN A TRUTHFUL
WITNESS.  THIS TIME, HOWEVER, THE CIRCUIT COURT OF APPEALS REVERSED
WITH ONE JUDGE DISSENTING.  149 F.2D 31.  THE REVERSAL RESTED BASICALLY
ON THE COURT'S BELIEF THAT THE TRIAL JUDGE HAD ERRONEOUSLY FOUND THAT
GOLDSTEIN DID NOT COMMIT PERJURY.  THE MAJORITY OF THE COURT REVIEWED
PARTS OF THE AFFIDAVITS AND CONCLUDED FROM THEM THAT THE TRIAL JUDGE'S
FINDING THAT GOLDSTEIN DID NOT COMMIT PERJURY WAS ILLOGICAL AND
UNREASONABLE.  THE MAJORITY SUBSTITUTED ITS OWN FINDING THAT
GOLDSTEIN'S ORIGINAL TESTIMONY WAS "UNERRINGLY FALSE" AND HELD THAT THE
TRIAL JUDGE'S CONTRARY CONCLUSION AMOUNTED TO AN ABUSE OF DISCRETION. 
SINCE WE THINK IT IMPORTANT FOR THE ORDERLY ADMINISTRATION OF CRIMINAL
JUSTICE THAT FINDINGS ON CONFLICTING EVIDENCE BY TRIAL COURTS ON
MOTIONS FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE REMAIN
UNDISTURBED EXCEPT FOR MOST EXTRAORDINARY CIRCUMSTANCES, WE GRANTED
CERTIORARI. 

IN OUR OPINION THE CIRCUIT COURT OF APPEALS ERRED.  THE APPEAL TO
THAT COURT WAS SO DEVOID OF MERIT THAT IT SHOULD HAVE BEEN DISMISSED. 
THE CRUCIAL QUESTION BEFORE THE TRIAL COURT WAS ONE OF FACT:  DID THE
NEW EVIDENCE SHOW THAT GOLDSTEIN'S ORIGINAL TESTIMONY WAS FALSE?  FN5
THE TRIAL JUDGE, AFTER CAREFULLY STUDYING ALL THE EVIDENCE, FOUND THAT
THERE WAS NOTHING TO SHOW PERJURY ON THE PART OF GOLDSTEIN, THAT
GOLDSTEIN HAD IN FACT TOLD THE TRUTH, AND CONCLUDED THAT A NEW TRIAL
WAS NOT WARRANTED.  THE TRIAL COURT THUS ANSWERED THE ABOVE QUESTION IN
THE NEGATIVE.  TWO JUDGES OF THE CIRCUIT COURT OF APPEALS THOUGHT THAT
THE EVIDENCE COMPELLED AN AFFIRMATIVE ANSWER.  BUT IT IS NOT THE
PROVINCE OF THIS COURT OR THE CIRCUIT COURT OF APPEALS TO REVIEW ORDERS
GRANTING OR DENYING MOTIONS FOR A NEW TRIAL WHEN SUCH REVIEW IS SOUGHT
ON THE ALLEGED GROUND THAT THE TRIAL COURT MADE ERRONEOUS FINDINGS OF
FACT.  HOLMGREN V. UNITED STATES, 217 U.S. 509; HOLT V. UNITED STATES,
218 U.S. 245; FAIRMOUNT GLASS WORKS V. CUB FORK COAL CO., 287 U.S. 474,
481.  WHILE THE APPELLATE COURT MIGHT INTERVENE WHEN THE FINDINGS OF
FACT ARE WHOLLY UNSUPPORTED BY EVIDENCE, CF. UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S. 150, 247; GLASSER V. UNITED STATES, 315 U.S.
60, 87, IT SHOULD NEVER DO SO WHERE IT DOES NOT CLEARLY APPEAR THAT THE
FINDINGS ARE NOT SUPPORTED BY ANY EVIDENCE. 

THE TRIAL JUDGE'S FINDINGS WERE SUPPORTED BY EVIDENCE.  HE HAD
CONDUCTED THE ORIGINAL TRIAL AND HAD WATCHED THE CASE AGAINST JOHNSON
AND THE OTHER RESPONDENTS UNFOLD FROM DAY TO DAY.  CONSEQUENTLY THE
TRIAL JUDGE WAS EXCEPTIONALLY QUALIFIED TO PASS ON THE AFFIDAVITS.  THE
RECORD OF BOTH THE ORIGINAL TRIAL AND THE PROCEEDINGS ON THE MOTIONS
FOR A NEW TRIAL SHOWS CLEARLY THAT THE TRIAL JUDGE GAVE THE NUMEROUS
ELEMENTS OF THE CONTROVERSY CAREFUL AND HONEST CONSIDERATION.  WE THINK
THAT EVEN A CASUAL PERUSAL OF THIS RECORD SHOULD HAVE REVEALED TO THE
CIRCUIT COURT OF APPEALS THAT HERE NOTHING MORE WAS INVOLVED THAN AN
EFFORT TO UPSET A TRIAL COURT'S FINDINGS OF FACT. 

DETERMINATION OF GUILT OR INNOCENCE AS A RESULT OF A FAIR TRIAL, AND
PROMPT ENFORCEMENT OF SENTENCES IN THE EVENT OF CONVICTION, ARE
OBJECTIVES OF CRIMINAL LAW.  IN THE INTEREST OF PROMPTNESS, RULE II(2)
OF THE CRIMINAL APPEALS RULES REQUIRES THAT MOTIONS FOR NEW TRIAL
GENERALLY MUST BE MADE WITHIN THREE DAYS AFTER VERDICT OR FINDING OF
GUILT, AND RULE III REQUIRES APPEALS TO BE TAKEN WITHIN FIVE DAYS.  BUT
MOTIONS FOR NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE HAVE
BEEN MORE LIBERALLY TREATED.  THEY CAN, UNDER RULE II(3), BE MADE AT
ANY TIME WITHIN SIXTY DAYS AFTER JUDGMENT, AND IN THE EVENT OF AN
APPEAL, AT ANY TIME BEFORE FINAL DISPOSITION BY THE APPELLATE COURT. 
THIS EXTRAORDINARY LENGTH OF TIME WITHIN WHICH THIS TYPE OF MOTION CAN
BE MADE IS DESIGNED TO AFFORD RELIEF WHERE, DESPITE THE FAIR CONDUCT OF
THE TRIAL, IT LATER CLEARLY APPEARS TO THE TRIAL JUDGE THAT, BECAUSE OF
FACTS UNKNOWN AT THE TIME OF TRIAL, SUBSTANTIAL JUSTICE WAS NOT DONE. 
IT IS OBVIOUS, HOWEVER, THAT THIS PRIVILEGE MIGHT LEND ITSELF FOR USE
AS A METHOD OF DELAYING ENFORCEMENT OF JUST SENTENCES.  ESPECIALLY IS
THIS TRUE WHERE DELAY IS EXTENDED BY APPEALS LACKING IN MERIT.  THIS
CASE WELL ILLUSTRATES THIS POSSIBILITY.  WHILE A DEFENDANT SHOULD BE
AFFORDED THE FULL BENEFIT OF THIS TYPE OF RECTIFYING MOTION, COURTS
SHOULD BE ON THE ALERT TO SEE THAT THE PRIVILEGE OF ITS USE IS NOT
ABUSED.  ONE OF THE MOST EFFECTIVE METHODS OF PREVENTING THIS ABUSE IS
FOR APPELLATE COURTS TO REFRAIN FROM REVIEWING FINDINGS OF FACT WHICH
HAVE EVIDENCE TO SUPPORT THEM.  THE CIRCUIT COURT OF APPEALS WAS RIGHT
IN THE FIRST INSTANCE, WHEN IT DECLARED THAT IT DID NOT SIT TO TRY DE
NOVO MOTIONS FOR A NEW TRIAL.  IT WAS WRONG IN THE SECOND INSTANCE WHEN
IT DID REVIEW THE FACTS DE NOVO AND ORDER THE JUDGMENT SET ASIDE. 

THE APPEAL TO THE CIRCUIT COURT OF APPEALS WAS INSTITUTED BY NOTICE
OF APPEAL UNDER RULE III OF THE CRIMINAL APPEALS RULES.  RULE IV GIVES
THE CIRCUIT COURT OF APPEALS POWER TO SUPERVISE AND CONTROL ALL
PROCEEDINGS ON THE APPEAL AND TO EXPEDITE SUCH PROCEEDINGS BY, AMONG
OTHER THINGS, ENTERTAINING MOTIONS TO DISMISS.  RAY V. UNITED STATES,
301 U.S. 158, 164; MORTENSEN V. UNITED STATES, 322 U.S. 369.  UNDER
THAT RULE THE CIRCUIT COURT OF APPEALS HERE, AFTER STUDYING THE ISSUES
RAISED, AND UPON DETERMINING THAT THE ONLY OBJECTION WAS TO THE TRIAL
COURT'S FINDINGS ON CONFLICTING EVIDENCE, SHOULD HAVE DECIDED THAT THIS
DOES NOT PRESENT A REVIEWABLE ISSUE OF LAW AND ON ITS OWN MOTION HAVE
DISMISSED THE APPEAL AS FRIVOLOUS.  FN6 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED, AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT TO ENFORCE THE JUDGMENTS
AGAINST THE PETITIONERS.  IT IS SO ORDERED. 

FN1  THE RESPONDENT BROWN WAS FOUND GUILTY ONLY ON THE CONSPIRACY
COUNT AND COUNTS 3 AND 4, THE SUBSTANTIVE COUNTS FOR 1938-1939. 

FN2  PREVIOUSLY RESPONDENTS HAD APPLIED TO MR. JUSTICE FRANKFURTER
FOR A STAY OF MANDATE PENDING PETITION FOR REHEARING.  MR. JUSTICE
FRANKFURTER'S DENIAL OF THE MOTION SPECIFICALLY STATED THAT IT WAS TO
BE "WITHOUT PREJUDICE, HOWEVER, TO THE CONSIDERATION AND DISPOSITION BY
THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT OF
ANY MOTION FILED UNDER RULE 2(3) OF THE CRIMINAL APPEALS RULES  ..." 

FN3  "II.  MOTIONS. 

     .   .         .         .         . 

"(3)  EXCEPT IN CAPITAL CASES A MOTION FOR A NEW TRIAL SOLELY UPON
THE GROUND OF NEWLY-DISCOVERED EVIDENCE MAY BE MADE WITHIN SIXTY (60)
DAYS AFTER FINAL JUDGMENT, WITHOUT REGARD TO THE EXPIRATION OF THE TERM
AT WHICH JUDGMENT WAS RENDERED, UNLESS AN APPEAL HAS BEEN TAKEN AND IN
THAT EVENT THE TRIAL COURT MAY ENTERTAIN THE MOTION ONLY ON REMAND OF
THE CASE BY THE APPELLATE COURT FOR THAT PURPOSE, AND SUCH REMAND MAY
BE MADE AT ANY TIME BEFORE FINAL JUDGMENT  ..." 

FN4  AN ALTERNATIVE GROUND FOR THE COURT'S DENIAL OF THE MOTION NEED
NOT BE CONSIDERED HERE.  FOR AS WILL BE SEEN WE THINK THAT THE TRIAL
COURT'S FINDINGS THAT THE SO-CALLED NEW EVIDENCE FAILED TO SHOW
GOLDSTEIN'S PERJURY SHOULD NOT HAVE BEEN UPSET.  THE ALTERNATIVE GROUND
WAS THAT ALL THE SO-CALLED NEWLY DISCOVERED EVIDENCE WAS EITHER NOT
NEWLY DISCOVERED, OR MERELY CUMULATIVE OR IMPEACHING, AND IN ANY EVENT
WOULD PROBABLY NOT PRODUCE A DIFFERENT RESULT.  IN THIS ASPECT OF THE
CASE, THE TRIAL COURT, AS DID THE CIRCUIT COURT OF APPEALS IN ITS FIRST
OPINION, RELIED ON THE FREQUENTLY QUOTED AND FOLLOWED RULE ANNOUNCED IN
BERRY V. GEORGIA, 10 GA. 511. 

FN5  IN ADDITION TO QUESTIONS INVOLVING THE MERELY IMPEACHING OR
CUMULATIVE EFFECT OF THE EVIDENCE, WHICH WE HAVE ALREADY INDICATED NEED
NOT BE CONSIDERED HERE, SEE NOTE 2, SUPRA, WE ALSO NEED NOT CONSIDER
WHAT CRITERIA SHOULD HAVE GUIDED THE COURT IN PASSING ON THE MOTION,
HAD RESPONDENTS ACTUALLY SHOWN THAT GOLDSTEIN RECANTED HIS TESTIMONY OR
THAT HE COMMITTED PERJURY.  COMPARE LARRISON V. UNITED STATES, 24 F.2D
82, WITH BERRY V. GEORGIA, SUPRA, NOTE 2.  FOR AS LATER APPEARS WE
CONSIDER THE DISTRICT COURT'S FINDING, THAT GOLDSTEIN'S TESTIMONY WAS
NOT SHOWN TO HAVE BEEN FALSE, NOT REVIEWABLE.  THAT WAS SUFFICIENT TO
WARRANT A DENIAL OF THE MOTION.    FN6  ALBERTS V. UNITED STATES, 21
F.2D 968; CORRIGAN V. BUCKLEY, 271 U.S. 323, 329; AVENT V. UNITED
STATES, 266 U.S. 127, 131; SUGARMAN V. UNITED STATES, 249 U.S. 182,
184; ZUCHT V. KING, 260 U.S. 174, 176; CAMPBELL V. OLNEY, 262 U.S. 352;
SEABOARD AIR LINE R. CO. V. WATSON, 287 U.S. 86, 90, 92; SALINGER V.
UNITED STATES, 272 U.S. 542, 544; KRYDER V. INDIANA, 305 U.S. 570; CADY
V. GEORGIA, 323 U.S. 676. 

MR. JUSTICE JACKSON AND MR. JUSTICE MURPHY TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :







ESTEP V. UNITED STATES, 327 U.S. 114 


ARGUED NOVEMBER 7, 1945.  - DECIDED FEBRUARY 4, 1946.  - 150 F.2D 768,
148 F.2D 288, REVERSED. 


1.  IN A CRIMINAL PROSECUTION UNDER THE SELECTIVE TRAINING AND SERVICE
ACT OF 1940 FOR WILFULLY FAILING AND REFUSING TO SUBMIT TO INDUCTION, A
REGISTRANT WHO APPEARED AT THE INDUCTION CENTER AND WAS FINALLY
ACCEPTED, BUT WHO REFUSED TO SUBMIT TO INDUCTION - HAVING PURSUED HIS
ADMINISTRATIVE REMEDY TO THE END - MAY INTERPOSE THE DEFENSE THAT THE
ACTION OF HIS LOCAL BOARD IN REJECTING HIS CLAIM OF EXEMPTION AS A
MINISTER OF RELIGION AND CLASSIFYING HIM AS AVAILABLE FOR MILITARY
SERVICE WAS BEYOND ITS JURISDICTION.  FALBO V. UNITED STATES, 320 U.S.
549, DISTINGUISHED.  P. 121. 

2.  ACTION OF A LOCAL BOARD WHICH IS CONTRARY TO THE ACT OR THE
REGULATIONS PRESCRIBED PURSUANT THERETO IS BEYOND THE JURISDICTION OF
THE BOARD.  PP. 120, 121. 

3.  THE FACT THAT THE SELECTIVE TRAINING AND SERVICE ACT MAKES NO
PROVISION FOR JUDICIAL REVIEW OF THE ACTION OF LOCAL BOARDS OR THE
APPEAL AGENCIES IS NOT NECESSARILY TO BE CONSTRUED AS A DENIAL OF THE
POWER OF THE FEDERAL COURTS TO GRANT RELIEF IN THE EXERCISE OF THE
GENERAL JURISDICTION WHICH CONGRESS HAS CONFERRED UPON THEM.  P. 119. 

4.  APART FROM CONSTITUTIONAL REQUIREMENTS, THE QUESTION WHETHER
JUDICIAL REVIEW WILL BE PROVIDED WHERE CONGRESS IS SILENT DEPENDS ON
THE WHOLE SETTING OF THE PARTICULAR STATUTE AND THE SCHEME OF
REGULATION WHICH IS ADOPTED.  P. 120. 

5.  EXCEPT WHEN THE CONSTITUTION REQUIRES IT, JUDICIAL REVIEW OF
ADMINISTRATIVE ACTION MAY BE GRANTED OR WITHHELD AS CONGRESS CHOOSES. 
P. 120. 

6.  SECTION 11 OF THE SELECTIVE TRAINING AND SERVICE ACT IS NOT TO BE
READ AS REQUIRING COURTS TO SANCTION ORDERS WHICH FLAGRANTLY VIOLATE
THE RULES AND REGULATIONS DEFINING THE JURISDICTION OF THE LOCAL
BOARDS.  P. 121. 

7.  THE PROVISION OF THE ACT MAKING DECISIONS OF THE LOCAL BOARDS
"FINAL" MEANS THAT CONGRESS CHOSE NOT TO GIVE ADMINISTRATIVE ACTION
UNDER THE ACT THE CUSTOMARY SCOPE OF JUDICIAL REVIEW WHICH OBTAINS
UNDER OTHER STATUTES; THAT THE COURTS ARE NOT TO WEIGH THE EVIDENCE TO
DETERMINE WHETHER THE CLASSIFICATION MADE BY THE LOCAL BOARD WAS
JUSTIFIED; AND THAT DECISIONS OF THE LOCAL BOARDS MADE IN CONFORMITY
WITH THE REGULATIONS ARE CONCLUSIVE EVEN THOUGH THEY MAY BE ERRONEOUS. 
P. 122. 

8.  ON JUDICIAL REVIEW THE QUESTION OF THE JURISDICTION OF THE LOCAL
BOARD IS REACHED ONLY IF THERE IS NO BASIS IN FACT FOR THE
CLASSIFICATION GIVEN THE REGISTRANT.  P. 122. 

ESTEP V. UNITED STATES. 

NO. 292.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT* . 

*TOGETHER WITH NO. 66, SMITH V. UNITED STATES, ON CERTIORARI TO THE
CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.  ARGUED AND DECIDED ON
THE SAME DATES. 

NO. 292.  PETITIONER WAS CONVICTED OF A VIOLATION OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  150 F.2D 768.  THIS COURT GRANTED CERTIORARI.  326 U.S.
703.  REVERSED, P. 125. 

NO. 66.  PETITIONER WAS CONVICTED OF A VIOLATION OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  148 F.2D 288.  THIS COURT GRANTED CERTIORARI.  325 U.S.
846.  REVERSED, P. 125. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN FALBO V. UNITED STATES, 320 U.S. 549, WE HELD THAT IN A CRIMINAL
PROSECUTION UNDER SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE ACT OF
1940(54 STAT. 894, 50 U.S.C. APP. SEC. 311) A REGISTRANT COULD NOT
DEFEND ON THE GROUND THAT HE WAS WRONGFULLY CLASSIFIED AND WAS ENTITLED
TO A STATUTORY EXEMPTION, WHERE THE OFFENSE WAS A FAILURE TO REPORT FOR
INDUCTION INTO THE ARMED FORCES OR FOR WORK OF NATIONAL IMPORTANCE. 
FN1  WE FOUND NO PROVISION FOR JUDICIAL REVIEW OF A REGISTRANT'S
CLASSIFICATION PRIOR TO THE TIME WHEN HE HAD TAKEN ALL THE STEPS IN THE
SELECTIVE PROCESS AND HAD BEEN FINALLY ACCEPTED BY THE ARMED SERVICES. 
THE QUESTION IN THESE CASES IS WHETHER THERE MAY BE JUDICIAL REVIEW OF
HIS CLASSIFICATION IN A PROSECUTION UNDER SEC. 11 WHERE HE REPORTED FOR
INDUCTION, WAS FINALLY ACCEPTED, BUT REFUSED TO SUBMIT TO INDUCTION. 

ESTEP'S LOCAL BOARD CLASSIFIED HIM AS I-A, I.E., AS AVAILABLE FOR
MILITARY SERVICE.  FN2 SEC. 5(D) OF THE ACT EXEMPTS FROM TRAINING AND
SERVICE (BUT NOT FROM REGISTRATION) "REGULAR OR DULY ORDAINED MINISTERS
OF RELIGION  ..."  UNDER THE REGULATIONS THOSE IN THAT CATEGORY ARE
CLASSIFIED AS IV-D.  FN3  ESTEP, A MEMBER OF JEHOVAH'S WITNESSES,
CLAIMED THAT HE WAS ENTITLED TO THAT CLASSIFICATION.  THE LOCAL BOARD
RULED AGAINST HIM.  HE TOOK HIS CASE TO THE APPEAL BOARD WHICH
CLASSIFIED HIM AS I-A.  FN4  HE THEN ASKED THE STATE AND NATIONAL
DIRECTORS OF SELECTIVE SERVICE TO APPEAL TO THE PRESIDENT FOR HIM.  FN5
HIS REQUEST WAS REFUSED.  THE LOCAL BOARD THEREUPON ORDERED HIM TO
REPORT FOR INDUCTION.  HE REPORTED AT THE TIME AND PLACE INDICATED.  HE
WAS ACCEPTED BY THE NAVY.  BUT HE REFUSED TO BE INDUCTED, CLAIMING THAT
HE WAS EXEMPT FROM SERVICE BECAUSE HE WAS AN ORDAINED MINISTER OF THE
GOSPEL. 

HE WAS INDICTED UNDER SEC. 11 OF THE ACT FOR WILFULLY FAILING AND
REFUSING TO SUBMIT TO INDUCTION.  FN6  HE SOUGHT TO DEFEND ON THE
GROUND THAT AS A JEHOVAH'S WITNESS HE WAS A MINISTER OF RELIGION AND
THAT HE HAD BEEN IMPROPERLY DENIED EXEMPTION FROM SERVICE, BECAUSE THE
CLASSIFYING AGENCIES ACTED ARBITRARILY AND CAPRICIOUSLY IN REFUSING TO
CLASSIFY HIM AS IV-D.  HE ALSO CLAIMED THAT HIS RIGHT TO AN EFFECTIVE
APPEAL HAD BEEN DENIED BECAUSE THE LOCAL BOARD UNLAWFULLY WITHHELD
CERTAIN RELEVANT DOCUMENTS FROM THE APPEAL BOARD AND INCLUDED IMPROPER
MATERIAL IN THE RECORD ON APPEAL.  THE DISTRICT COURT REJECTED THESE
DEFENSES AND DID NOT PERMIT THE INTRODUCTION OF EVIDENCE TO SUSTAIN
ESTEP'S CONTENTION.  THE JURY FOUND HIM GUILTY AND HE WAS SENTENCED TO
IMPRISONMENT FOR A TERM OF FIVE YEARS.  ON APPEAL THE CIRCUIT COURT OF
APPEALS AFFIRMED, ON A DIVIDED VOTE.  150 F.2D 768. 

SMITH, LIKE ESTEP, IS A MEMBER OF JEHOVAH'S WITNESSES.  HE CLAIMED
EXEMPTION FROM ALL SERVICE ON THE GROUND THAT HE WAS A MINISTER OF
RELIGION.  HIS LOCAL BOARD PLACED HIM IN CLASS I-A, AS AVAILABLE FOR
MILITARY SERVICE.  HIS CLASSIFICATION WAS AFFIRMED BY THE APPEAL
BOARD.  ON APPEAL TO THE PRESIDENT HIS CLASSIFICATION WAS AGAIN
AFFIRMED.  THE LOCAL BOARD THEN ORDERED HIM TO REPORT FOR INDUCTION. 
HE REPORTED TO THE INDUCTION STATION, WAS ACCEPTED BY THE MILITARY, BUT
REFUSED TO BE INDUCTED, CLAIMING HE WAS EXEMPT FROM SERVICE BECAUSE HE
WAS A MINISTER.  HE WAS INDUCTED AGAINST HIS WILL AND LATER WAS HELD
FOR TRIAL BY A GENERAL COURT-MARTIAL FOR DISOBEDIENCE OF MILITARY
ORDERS.  HE FILED A PETITION FOR A WRIT OF HABEAS CORPUS WHICH WAS
DENIED.  SMITH V. RICHART, 53 F.SUPP.  582.  WHILE HIS APPEAL WAS
PENDING, WE DECIDED BILLINGS V. TRUESDELL, 321 U.S. 542.  HE WAS
THEREUPON RELEASED FROM MILITARY CUSTODY AND INDICTED FOR VIOLATION OF
SEC. 11 OF THE ACT.  AT THE TRIAL HE SOUGHT TO ATTACK THE
CLASSIFICATION GIVEN HIM BY HIS LOCAL BOARD, CLAIMING, AMONG OTHER
THINGS, THAT IT ACTED WITHOUT ANY FOUNDATION OF FACT, DISCRIMINATED
AGAINST HIM BECAUSE HE WAS A JEHOVAH'S WITNESS, AND DENIED HIM THE
RIGHT TO MAKE FULL PROOF OF HIS CLAIM THAT HE WAS A MINISTER OF
RELIGION.  THE COURT RULED THAT NO SUCH DEFENSE COULD BE TENDERED. 
SMITH WAS FOUND GUILTY BY THE JURY AND A SENTENCE OF THREE AND ONE-HALF
YEARS WAS IMPOSED.  THE JUDGMENT OF CONVICTION WAS AFFIRMED ON APPEAL. 
148 F.2D 288. 

THE CASES ARE HERE ON PETITIONS FOR WRITS OF CERTIORARI WHICH WE
GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED. 

CONGRESS ENTRUSTED THE ADMINISTRATION OF THE SELECTIVE SERVICE SYSTEM
TO CIVILIAN AGENCIES, NOT TO THE MILITARY.  IT AUTHORIZED THE PRESIDENT
TO CREATE AND ESTABLISH A SELECTIVE SERVICE SYSTEM AND TO ESTABLISH
CIVILIAN LOCAL BOARDS AND APPEAL BOARDS TO ADMINISTER IT.  SEC.
10(A)(2).  THE SELECTIVE SERVICE SYSTEM WAS DESIGNED TO "PROVIDE FOR
THE CLASSIFICATION OF REGISTRANTS AND OF PERSONS WHO VOLUNTEER FOR
INDUCTION UNDER THIS ACT ON THE BASIS OF AVAILABILITY FOR TRAINING AND
SERVICE  ..."  ID.  CONGRESS SPECIFIED CERTAIN RESTRICTED CLASSES FOR
DEFERMENT  FN7  OR EXEMPTION FROM SERVICE, INCLUDING IN THE LATTER, AS
WE HAVE SAID, "REGULAR OR DULY ORDAINED MINISTERS OF RELIGION  ..." 
SEC. 5.  THE PRESIDENT WAS AUTHORIZED TO PROVIDE FOR THE DEFERMENT OF
OTHER CLASSES BY RULES AND REGULATIONS.  FN8  SEC. 5(E).  AND THE LOCAL
BOARDS "UNDER RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT" WERE
GRANTED THE "POWER WITHIN THEIR RESPECTIVE JURISDICTIONS TO HEAR AND
DETERMINE, SUBJECT TO THE RIGHT OF APPEAL TO THE APPEAL BOARDS HEREIN
AUTHORIZED, ALL QUESTIONS OR CLAIMS WITH RESPECT TO INCLUSION FOR, OR
EXEMPTION OR DEFERMENT FROM, TRAINING AND SERVICE UNDER THIS ACT OF ALL
INDIVIDUALS WITHIN THE JURISDICTION OF SUCH LOCAL BOARDS."  SEC.
10(A)(2).  THE ACT MAKES NO PROVISION IN TERMS FOR JUDICIAL REVIEW OF
THE ACTIONS OF THE LOCAL BOARDS OR THE APPEAL BOARDS.  FOR SEC.
10(A)(2) STATES THAT THE "DECISIONS OF SUCH LOCAL BOARDS SHALL BE FINAL
EXCEPT WHERE AN APPEAL IS AUTHORIZED IN ACCORDANCE WITH SUCH RULES AND
REGULATIONS AS THE PRESIDENT MAY PRESCRIBE."  FN9 

BY THE TERMS OF THE ACT CONGRESS ENLISTED THE AID OF THE FEDERAL
COURTS ONLY FOR ENFORCEMENT PURPOSES.  SEC. 11 MAKES CRIMINAL A WILFUL
FAILURE TO PERFORM ANY DUTY REQUIRED OF A REGISTRANT BY THE ACT OR THE
RULES OR REGULATIONS MADE UNDER IT.  AN ORDER TO REPORT FOR INDUCTION
IS SUCH A DUTY; AND IT INCLUDES THE DUTY TO SUBMIT TO INDUCTION. 
BILLINGS V. TRUESDELL, SUPRA, P. 557.  SEC. 11 CONFERS JURISDICTION ON
THE DISTRICT COURTS TO TRY ONE CHARGED WITH SUCH OFFENSE.  BUT SEC. 11
IS SILENT WHEN IT COMES TO THE DEFENSES, IF ANY, WHICH MAY BE
INTERPOSED. 

THUS WE START WITH A STATUTE WHICH MAKES NO PROVISION FOR JUDICIAL
REVIEW OF THE ACTIONS OF THE LOCAL BOARDS OR THE APPEAL AGENCIES.  THAT
ALONE, OF COURSE, IS NOT DECISIVE.  FOR THE SILENCE OF CONGRESS AS TO
JUDICIAL REVIEW IS NOT NECESSARILY TO BE CONSTRUED AS A DENIAL OF THE
POWER OF THE FEDERAL COURTS TO GRANT RELIEF IN THE EXERCISE OF THE
GENERAL JURISDICTION WHICH CONGRESS HAS CONFERRED UPON THEM.  AMERICAN
SCHOOL OF HEALING V. MCANNULTY, 187 U.S. 94; GEGIOW V. UHL, 239 U.S. 3;
STARK V. WICKARD, 321 U.S. 288.  JUDICIAL REVIEW MAY INDEED BE REQUIRED
BY THE CONSTITUTION.  NG FUNG HO V. WHITE, 259 U.S. 276.  APART FROM
CONSTITUTIONAL REQUIREMENTS, THE QUESTION WHETHER JUDICIAL REVIEW WILL
BE PROVIDED WHERE CONGRESS IS SILENT DEPENDS ON THE WHOLE SETTING OF
THE PARTICULAR STATUTE AND THE SCHEME OF REGULATION WHICH IS ADOPTED. 
SWITCHMEN'S UNION V. MEDIATION BOARD, 320 U.S. 297, 301.  AND EXCEPT
WHEN THE CONSTITUTION REQUIRES IT, JUDICIAL REVIEW OF ADMINISTRATIVE
ACTION MAY BE GRANTED OR WITHHELD AS CONGRESS CHOOSES. 

THE AUTHORITY OF THE LOCAL BOARDS WHOSE ORDERS ARE THE BASIS OF THESE
CRIMINAL PROSECUTIONS IS CIRCUMSCRIBED BOTH BY THE ACT AND BY THE
REGULATIONS.  THEIR AUTHORITY TO HEAR AND DETERMINE ALL QUESTIONS OF
DEFERMENT OR EXEMPTION IS, AS STATED IN SEC. 10(A)(2), LIMITED TO
ACTION "WITHIN THEIR RESPECTIVE JURISDICTIONS."  IT IS ONLY ORDERS
"WITHIN THEIR RESPECTIVE JURISDICTIONS" THAT ARE MADE FINAL.  IT WOULD
SEEM, THEREFORE, THAT IF A PENNSYLVANIA BOARD ORDERED A CITIZEN AND
RESIDENT OF OREGON TO REPORT FOR INDUCTION, THE DEFENSE THAT IT ACTED
BEYOND ITS JURISDICTION COULD BE INTERPOSED IN A PROSECUTION UNDER SEC.
11.  THAT CASE WOULD BE COMPARABLE TO TUNG V. UNITED STATES, 142 F.2D
919, WHERE THE LOCAL BOARD ORDERED A REGISTRANT TO REPORT FOR INDUCTION
WITHOUT ALLOWING HIM THE APPEAL TO WHICH HE WAS ENTITLED UNDER THE
REGULATIONS.  SINCE SEC. 10(A)(2) MAKES THE DECISIONS OF THE LOCAL
BOARDS FINAL "EXCEPT WHERE AN APPEAL IS AUTHORIZED" UNDER THE
REGULATIONS, THE DEFENSE WAS ALLOWED IN THE CRIMINAL TRIAL. 

ANY OTHER CASE WHERE A LOCAL BOARD ACTS SO CONTRARY TO ITS GRANTED
AUTHORITY AS TO EXCEED ITS JURISDICTION  FN10  DOES NOT STAND ON A
DIFFERENT FOOTING.  BY SEC. 10(A)(2) THE LOCAL BOARDS, IN HEARING AND
DETERMINING CLAIMS FOR DEFERMENT OR EXEMPTION, MUST ACT "UNDER RULES
AND REGULATIONS PRESCRIBED BY THE PRESIDENT  ..."  THOSE RULES LIMIT,
AS WELL AS DEFINE, THEIR JURISDICTION.  ONE OF THOSE REGULATIONS
FORBIDS THE LOCAL BOARDS FROM BASING THEIR CLASSIFICATION OF A
REGISTRANT ON A DISCRIMINATION "FOR OR AGAINST HIM BECAUSE OF HIS RACE,
CREED, OR COLOR, OR BECAUSE OF HIS MEMBERSHIP OR ACTIVITY IN ANY LABOR,
POLITICAL, RELIGIOUS, OR OTHER ORGANIZATION."  623.1.  ANOTHER
PROVIDES, IN ACCORDANCE WITH THE MANDATE CONTAINED IN SEC. 5(C)(1) OF
THE ACT, FOR THE DEFERMENT OF GOVERNORS OF STATES AND MEMBERS OF
CONGRESS WHILE THEY HOLD THEIR OFFICES.  FN11 622.42.  ANOTHER PROVIDES
THAT THE LOCAL BOARD "SHALL REOPEN AND CONSIDER ANEW THE CLASSIFICATION
OF A REGISTRANT" ON THE WRITTEN REQUEST OF THE STATE DIRECTOR OR THE
DIRECTOR AND UPON RECEIPT OF THE REQUEST "SHALL IMMEDIATELY CANCEL" ANY
ORDER TO REPORT FOR INDUCTION OR FOR WORK OF NATIONAL IMPORTANCE. 
626.2-1.  IF A LOCAL BOARD ORDERED A MEMBER OF CONGRESS TO REPORT FOR
INDUCTION, OR IF IT CLASSIFIED A REGISTRANT AS AVAILABLE FOR MILITARY
SERVICE BECAUSE HE WAS A JEW, OR A GERMAN, OR A NEGRO, IT WOULD ACT IN
DEFIANCE OF THE LAW.  IF A LOCAL BOARD REFUSED TO REOPEN ON THE WRITTEN
REQUEST OF THE STATE DIRECTOR A REGISTRANT'S CLASSIFICATION AND REFUSED
TO CANCEL ITS ORDER TO REPORT FOR INDUCTION, IT WOULD BE ACTING IN THE
TEETH OF THE REGULATIONS.  IN ALL SUCH CASES ITS ACTION WOULD BE
LAWLESS AND BEYOND ITS JURISDICTION. 

WE CANNOT READ SEC. 11 AS REQUIRING THE COURTS TO INFLICT PUNISHMENT
ON REGISTRANTS FOR VIOLATING WHATEVER ORDERS THE LOCAL BOARDS MIGHT
ISSUE.  WE CANNOT BELIEVE THAT CONGRESS INTENDED THAT CRIMINAL
SANCTIONS WERE TO BE APPLIED TO ORDERS ISSUED BY LOCAL BOARDS NO MATTER
HOW FLAGRANTLY THEY VIOLATED THE RULES AND REGULATIONS WHICH DEFINE
THEIR JURISDICTION.  WE ARE DEALING HERE WITH A QUESTION OF PERSONAL
LIBERTY.  A REGISTRANT WHO VIOLATES THE ACT COMMITS A FELONY.  FN12  A
FELON CUSTOMARILY SUFFERS THE LOSS OF SUBSTANTIAL RIGHTS.  FN13  SEC.
11, BEING SILENT ON THE MATTER, LEAVES THE QUESTION OF AVAILABLE
DEFENSES IN DOUBT.  BUT WE ARE LOATH TO RESOLVE THOSE DOUBTS AGAINST
THE ACCUSED.  WE CANNOT READILY INFER THAT CONGRESS DEPARTED SO FAR
FROM THE TRADITIONAL CONCEPTS OF A FAIR TRIAL WHEN IT MADE THE ACTIONS
OF THE LOCAL BOARDS "FINAL" AS TO PROVIDE THAT A CITIZEN OF THIS
COUNTRY SHOULD GO TO JAIL FOR NOT OBEYING AN UNLAWFUL ORDER OF AN
ADMINISTRATIVE AGENCY.  WE ARE LOATH TO BELIEVE THAT CONGRESS REDUCED
CRIMINAL TRIALS UNDER THE ACT TO PROCEEDINGS SO BARREN OF THE CUSTOMARY
SAFEGUARDS WHICH THE LAW HAS DESIGNED FOR THE PROTECTION OF THE
ACCUSED.  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.  FN14  SEE GOFF V. UNITED STATES, 135 F.2D 610, 612. 

FALBO V. UNITED STATES, SUPRA, DOES NOT PRECLUDE SUCH A DEFENSE IN
THE PRESENT CASES.  IN THE FALBO CASE THE DEFENDANT CHALLENGED THE
ORDER OF HIS LOCAL BOARD BEFORE HE HAD EXHAUSTED HIS ADMINISTRATIVE
REMEDIES.  HERE THESE REGISTRANTS HAD PURSUED THEIR ADMINISTRATIVE
REMEDIES TO THE END.  ALL HAD BEEN DONE WHICH COULD BE DONE. 
SUBMISSION TO INDUCTION WOULD BE SATISFACTION OF THE ORDERS OF THE
LOCAL BOARDS, NOT A FURTHER STEP TO OBTAIN RELIEF FROM THEM.  FN15 
IF SEC. 11 WERE NOT CONSTRUED TO PERMIT THE ACCUSED TO DEFEND ON THE
GROUND THAT HIS LOCAL BOARD ACTED BEYOND ITS JURISDICTION, A CURIOUS
RESULT WOULD FOLLOW.  THE REMEDY OF HABEAS CORPUS EXTENDS TO A CASE
WHERE A PERSON "IS IN CUSTODY IN VIOLATION OF THE CONSTITUTION OR OF A
LAW  ...  OF THE UNITED STATES  ..."  R.S. SEC. 753, 28 U.S.C. SEC.
453.  IT HAS BEEN ASSUMED THAT HABEAS CORPUS IS AVAILABLE ONLY AFTER A
REGISTRANT HAS BEEN INDUCTED INTO THE ARMED SERVICES.  FN16  BUT IF WE
NOW HOLD THAT A REGISTRANT COULD NOT DEFEND AT HIS TRIAL ON THE GROUND
THAT THE LOCAL BOARD HAD NO JURISDICTION IN THE PREMISES, IT WOULD SEEM
THAT THE WAY WOULD THEN BE OPEN TO HIM TO CHALLENGE THE JURISDICTION OF
THE LOCAL BOARD AFTER CONVICTION BY HABEAS CORPUS.  FN17  THE COURT
WOULD THEN BE SENDING MEN TO JAIL TODAY WHEN IT WAS APPARENT THAT THEY
WOULD HAVE TO BE RELEASED TOMORROW. 

WE DO NOT SUGGEST THAT BECAUSE CONGRESS HAS PROVIDED ONE JUDICIAL
REMEDY ANOTHER SHOULD BE IMPLIED.  WE MAY ASSUME THAT WHERE ONLY ONE
JUDICIAL REMEDY IS PROVIDED, IT NORMALLY WOULD BE DEEMED EXCLUSIVE. 
BUT THE FACT THAT HABEAS CORPUS AFTER CONVICTION IS AVAILABLE IN THESE
CASES GIVES ADDED SUPPORT TO OUR READING OF SEC. 11.  IT SUPPORTS A
REJECTION OF A CONSTRUCTION OF THE ACT THAT REQUIRES THE COURTS TO
MARCH UP THE HILL WHEN IT IS APPARENT FROM THE BEGINNING THAT THEY WILL
HAVE TO MARCH DOWN AGAIN. 

WE EXPRESS NO OPINION ON THE MERITS OF THE DEFENSES WHICH WERE
TENDERED.  SINCE THE PETITIONERS WERE DENIED THE OPPORTUNITY TO SHOW
THAT THEIR LOCAL BOARDS EXCEEDED THEIR JURISDICTION, A NEW TRIAL MUST
BE HAD IN EACH CASE.  REVERSED. 

FN1 SEC. 5(G) OF THE ACT PROVIDES THAT A REGISTRANT SHALL "BE
ASSIGNED TO WORK OF NATIONAL IMPORTANCE UNDER CIVILIAN DIRECTION" IF HE
IS CONSCIENTIOUSLY OPPOSED TO INDUCTION INTO THE ARMED SERVICES EVEN
FOR NONCOMBATANT SERVICE.  SEE SELECTIVE SERVICE REGULATIONS, 652.1
652.14, 653.1-653.16. 

FN2  SELECTIVE SERVICE REGULATIONS, 622.11. 

FN3  ID., 622.44. 

FN4  BY SEC. 10(A)(2) OF THE ACT THE PRESIDENT WAS AUTHORIZED TO
ESTABLISH "CIVILIAN LOCAL BOARDS AND SUCH OTHER CIVILIAN AGENCIES,
INCLUDING APPEAL BOARDS AND AGENCIES OF APPEAL, AS MAY BE NECESSARY TO
CARRY OUT THE PROVISIONS OF THIS ACT."  THE PROVISIONS GOVERNING
APPEALS TO THE BOARDS OF APPEAL ARE CONTAINED IN 627.1-627.61 OF THE
REGULATIONS.  THE ACT PROVIDES A SPECIAL APPEAL PROCEDURE FOR
CONSCIENTIOUS OBJECTORS.  SEE SEC. 5(G). 

FN5  EITHER OF THEM MAY TAKE SUCH AN APPEAL AT ANY TIME WHEN HE
"DEEMS IT TO BE IN THE NATIONAL INTEREST OR NECESSARY TO AVOID AN
INJUSTICE  ..."  SELECTIVE SERVICE REGULATIONS, 628.1.  A REGISTRANT
MAY APPEAL TO THE PRESIDENT WHEN HE IS CLASSIFIED AS I-A PROVIDED ONE
OR MORE OF THE BOARD OF APPEAL DISSENTED FROM SUCH CLASSIFICATION. 
ID., 628.2.  IN ESTEP'S CASE THE BOARD OF APPEAL WAS UNANIMOUS IN
CLASSIFYING HIM IN I-A. 

FN6  SEC. 11 SO FAR AS MATERIAL HERE PROVIDES:  "ANY PERSON WHO  ...
SHALL KNOWINGLY FAIL OR NEGLECT TO PERFORM ANY DUTY REQUIRED OF HIM
UNDER OR IN THE EXECUTION OF THIS ACT, OR RULES OR REGULATIONS MADE
PURSUANT TO THIS ACT,  ...  SHALL, UPON CONVICTION IN THE DISTRICT
COURT OF THE UNITED STATES HAVING JURISDICTION THEREOF, 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  ..." 

FN7  THUS BY SEC. 5(C)(1) SPECIFIED CLASSES OF PUBLIC OFFICIALS WERE
DEFERRED FROM TRAINING AND SERVICE WHILE HOLDING THEIR OFFICES. 

FN8  THE REGULATIONS PLACED IN DEFERRED CLASSIFICATIONS THOSE WHOSE
EMPLOYMENT IN INDUSTRY, AGRICULTURE, OR OTHER OCCUPATIONS OR WHOSE
ACTIVITY WAS FOUND TO BE NECESSARY TO THE MAINTENANCE OF THE NATIONAL
HEALTH, SAFETY, OR INTEREST; THOSE WHO HAD PERSONS DEPENDENT ON THEM
FOR SUPPORT; THOSE FOUND TO BE PHYSICALLY, MENTALLY, OR MORALLY
DEFICIENT OR DEFECTIVE.  SEE SELECTIVE SERVICE REGULATIONS 622.21,
622.25-1, 622.32, 622.61, 622.62. 

FN9  THE PART OF SEC. 10(A)(2) RELEVANT HERE PROVIDES:  "SUCH LOCAL
BOARDS, UNDER RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT, SHALL
HAVE POWER WITHIN THEIR RESPECTIVE JURISDICTIONS TO HEAR AND DETERMINE,
SUBJECT TO THE RIGHT OF APPEAL TO THE APPEAL BOARDS HEREIN AUTHORIZED,
ALL QUESTIONS OR CLAIMS WITH RESPECT TO INCLUSION FOR, OR EXEMPTION OR
DEFERMENT FROM, TRAINING AND SERVICE UNDER THIS ACT OF ALL INDIVIDUALS
WITHIN THE JURISDICTION OF SUCH LOCAL BOARDS.  THE DECISIONS OF SUCH
LOCAL BOARDS SHALL BE FINAL EXCEPT WHERE AN APPEAL IS AUTHORIZED IN
ACCORDANCE WITH SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY
PRESCRIBE." 

FN10  SEE CASES CITED IN NOTE 14, INFRA. 

FN11  622.42 PROVIDES, "IN CLASS IV-B SHALL BE PLACED ANY REGISTRANT"
WHO HOLDS SPECIFIED OFFICES. 

FN12  "ALL OFFENSES WHICH MAY BE PUNISHED BY DEATH OR IMPRISONMENT
FOR A TERM EXCEEDING ONE YEAR SHALL BE DEEMED FELONIES."  CRIMINAL CODE
SEC. 335, 18 U.S.C. SEC. 541. 

FN13  CALIFORNIA:  SEC. 2600 OF THE PENAL CODE PROVIDES THAT A
SENTENCE OF IMPRISONMENT FOR LESS THAN LIFE SUSPENDS ALL CIVIL RIGHTS
AND FORFEITS ALL PUBLIC OFFICES AND PRIVATE TRUSTS, AUTHORITY, OR POWER
DURING THE IMPRISONMENT. 

NEW YORK:  FOR A SIMILAR PROVISION SEE SEC. 510 OF THE PENAL LAW. 

MISSOURI:  SEC. 4561 REV. STAT. ANN. RENDERS ANY PERSON SENTENCED TO
A PENITENTIARY OR CONVICTED OF A FELONY FOR ANY CRIME INCOMPETENT TO
SERVE AS A JUROR, AND FOREVER DISQUALIFIES HIM FROM VOTING OR HOLDING
OFFICE, UNLESS PARDONED. 

FN14  THAT IS THE SCOPE OF JUDICIAL INQUIRY IN DEPORTATION CASES
WHERE CONGRESS HAS MADE THE ORDERS OF DEPORTATION "FINAL."  CHIN YOW V.
UNITED STATES, 208 U.S. 8; NG FUNG HO V. WHITE, SUPRA; MAHLER V. EBY,
264 U.S. 32; U.S. EX REL. VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273
U.S. 103; BRIDGES V. WIXON, 326 U.S. 135.  THAT IS ALSO THE SCOPE OF
JUDICIAL INQUIRY WHEN A REGISTRANT AFTER INDUCTION SEEKS RELEASE FROM
THE MILITARY BY HABEAS CORPUS.  SEE UNITED STATES V. CAIN, 144 F.2D
944. 

FN15  IT IS SAID THAT OUR CONCLUSION RUNS COUNTER TO AN UNBROKEN LINE
OF CASES HOLDING THAT A REGISTRANT MAY NOT CHALLENGE HIS CLASSIFICATION
IN A PROSECUTION UNDER SEC. 11.  BUT MOST OF THOSE CASES ON THEIR FACTS
INVOLVED ONLY THE ISSUE PRESENTED BY THE FALBO CASE.  IN ONLY A FEW OF
THEM WAS THE ISSUE PRESENTED HERE NECESSARY FOR DECISION.  THE QUESTION
WAS RESERVED IN UNITED STATES V. PITT, 144 F.2D 169, 173(C.C.A. 3D,
1944).  IN THE FOLLOWING CASES, THE QUESTION WAS NECESSARY FOR
DECISION, AND IT WAS HELD THAT THE DEFENSE WAS NOT AVAILABLE:  FLETCHER
V. UNITED STATES, 129 F.2D 262(C.C.A.5TH, 1942); UNITED STATES V.
RINKO, 147 F.2D 1(C.C.A.7TH, 1945); GIBSON V. UNITED STATES, 149 F.2D
751(C.C.A.8TH, 1945); KOCH V. UNITED STATES, 150 F.2D 762(C.C.A.4TH,
1945). 

FN16  SEE UNITED STATES V. GRIEME, 128 F.2D 811; UNITED STATES V.
KAUTEN, 133 F.2D 703; UNITED STATES V. MROZ, 136 F.2D 221; BIRON V.
COLLINS, 145 F.2D 758; FUJII V. UNITED STATES, 148 F.2D 298; GIBSON V.
UNITED STATES, 149 F.2D 751.  SEE CONNOR AND CLARKE, JUDICIAL
INVESTIGATION OF SELECTIVE SERVICE ACTION, 19 TULANE L. REV. 344;
ELLIFF, JEHOVAH'S WITNESSES AND THE SELECTIVE SERVICE ACT, 31 VA. L.
REV. 811. 

FN17  THE COURTS WHICH HAVE SAID THAT HABEAS CORPUS WAS AVAILABLE
ONLY AFTER INDUCTION (SEE NOTE 16, SUPRA) APPEAR TO HAVE BEEN
INFLUENCED BY THE DECISIONS ARISING UNDER THE 1917 ACT, 40 STAT. 76, 50
U.S.C. APP. SEC. 201.  THUS IN UNITED STATES V. GRIEME, SUPRA, NOTE 16,
P. 814, THE COURT IN RULING THAT THE FINDINGS OF THE LOCAL BOARDS WERE
NOT REVIEWABLE BY THE COURTS SAID, "HERE AGAIN THE RULE IS SIMILAR TO
THE CONSTRUCTION PLACED UPON THE SELECTIVE DRAFT ACT OF 1917.  SEE EX
PARTE HUTFLIS 245 F. 798, 799."  THE LATTER CASE INVOLVED A PETITION
FOR A WRIT OF HABEAS CORPUS AFTER INDUCTION, WHICH WAS THE ACCEPTED WAY
OF CHALLENGING THE JURISDICTION OF THE DRAFT BOARDS UNDER THE 1917
ACT.  BUT AS WE POINTED OUT IN BILLINGS V. TRUESDELL, SUPRA, P. 546, A
REGISTRANT UNDER THE 1917 ACT WAS SUBJECT TO MILITARY LAW FROM THE TIME
HE WAS ORDERED TO PRESENT HIMSELF FOR INDUCTION.  DEFIANCE OF THE ORDER
WAS HELD TO CONSTITUTE DESERTION EVEN THOUGH THE DRAFTEE HAD NOT BEEN
AFFORDED A FAIR HEARING BY THE BOARD.  EX PARTE ROMANO, 251 F. 762; EX
PARTE TINKOFF, 254 F. 912.  IT WAS SAID IN EX PARTE ROMANO, SUPRA, P.
764:  "ALTHOUGH BASED ON IRREGULAR PROCEEDINGS, IT WAS NOT VOID.  UNTIL
VACATED, IT WAS BINDING ON THE PETITIONER." 

BUT AS BILLINGS V. TRUESDELL, SUPRA, MAKES PLAIN, THE PRESENT ACT AND
THE REGULATIONS PROMULGATED UNDER IT ARE DIFFERENT.  A REGISTRANT IS
NOT SUBJECT TO MILITARY LAW FROM THE TIME HE IS ORDERED TO REPORT FOR
INDUCTION, BUT ONLY AFTER HE HAS SUBMITTED TO INDUCTION.  THUS THE
DECISIONS UNDER THE 1917 ACT, HOLDING THAT HIS REMEDY AGAINST UNLAWFUL
ACTION OF THE LOCAL BOARD IS BY WAY OF HABEAS CORPUS AFTER INDUCTION,
ARE NO GUIDE TO DECISION UNDER THE PRESENT ACT. 

IT IS TRUE THAT AFTER THE CONVICTION OF THE DEFENDANT IN THE FALBO
CASE, HIS PETITION FOR A WRIT OF HABEAS CORPUS WAS DENIED.  141 F.2D
689.  AND IN A LIKE SITUATION HABEAS CORPUS WAS DENIED IN ADVANCE OF
THE TRIAL.  ALBERT V. GOGUEN, 141 F.2D 302.  BUT IN THOSE CASES
ADDITIONAL STEPS IN THE SELECTIVE SERVICE PROCEDURE REMAINED TO BE
TAKEN.  DENIAL OF HABEAS CORPUS FOLLOWED BY ANALOGY TO THE FAMILIAR
SITUATIONS WHERE OTHER CORRECTIVE PROCEDURES HAD BEEN AVAILABLE WHICH
MIGHT HAVE AFFORDED RELIEF FROM THE ORDERS COMPLAINED OF.  SEE BOWEN V.
JOHNSTON, 306 U.S. 19; EX PARTE WILLIAMS, 317 U.S. 604; EX PARTE HAWK,
321 U.S. 114.  BUT IN THE PRESENT CASES THE REGISTRANTS, AS WE HAVE
SAID, HAD PURSUED THEIR ADMINISTRATIVE REMEDIES TO THE END. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE MURPHY, CONCURRING. 

TO SUSTAIN THE CONVICTIONS OF THE TWO PETITIONERS IN THESE CASES
WOULD REQUIRE ADHERENCE TO THE PROPOSITION THAT A PERSON MAY BE
CRIMINALLY PUNISHED WITHOUT EVER BEING ACCORDED THE OPPORTUNITY TO
PROVE THAT THE PROSECUTION IS BASED UPON AN INVALID ADMINISTRATIVE
ORDER.  THAT IS A PROPOSITION TO WHICH I CANNOT SUBSCRIBE.  IT VIOLATES
THE MOST ELEMENTARY AND FUNDAMENTAL CONCEPTS OF DUE PROCESS OF LAW.  IT
CONDEMNS A MAN WITHOUT A FULL HEARING AND A CONSIDERATION OF ALL OF HIS
ALLEGED DEFENSES.  TO SANCTION SUCH A PROPOSITION IS TO PLACE AN
INDELIBLE "BLOT UPON OUR JURISPRUDENCE AND CIVILIZATION," MCVEIGH V.
UNITED STATES, 11 WALL.  259, 267, WHICH CANNOT BE JUSTIFIED BY ANY
APPEAL TO PATRIOTISM OR WARTIME EXIGENCIES. 

THE TWO COURTS BELOW CONDEMNED THE PETITIONERS TO PRISON FOR FAILING
TO OBEY ORDERS TO REPORT FOR INDUCTION INTO THE ARMED SERVICES, WHICH
HAD PREVIOUSLY FOUND THEM PHYSICALLY FIT.  PETITIONERS DO NOT DENY THAT
THEY DISOBEYED THESE ORDERS.  THEY DO CLAIM, HOWEVER, THAT THERE WAS A
SINGULAR LACK OF PROCEDURAL DUE PROCESS IN THE ISSUANCE OF THE
INDUCTION ORDERS AND THAT THE ORDERS WERE THEREFORE INVALID - CLAIMS
THAT MUST BE ASSUMED TO BE TRUE FOR PURPOSES OF THE CASES BEFORE US.
BUT THE COURTS BELOW, RELYING UPON FALBO V. UNITED STATES, 320 U.S.
549, FORBADE THEM FROM RAISING SUCH CLAIMS.  UNDER THAT VIEW, IT IS
IRRELEVANT THAT THE PETITIONERS HAD NEVER HAD A PRIOR OPPORTUNITY AND
WILL NEVER HAVE A FUTURE CHANCE TO TEST THESE CLAIMS; IT IS LIKEWISE
IMMATERIAL THAT THE CLAIMS, IF PROVED, MIGHT COMPLETELY ABSOLVE THEM
FROM LIABILITY.  THUS THE STIGMA AND PENALTIES OF CRIMINALITY ATTACH TO
ONE WHO WILFULLY DISOBEYS AN INDUCTION ORDER WHICH MAY BE
CONSTITUTIONALLY INVALID, OR UNAUTHORIZED BY STATUTE OR REGULATION, OR
ISSUED BY MISTAKE, OR ISSUED SOLELY AS THE RESULT OF BIAS AND
PREJUDICE.  THE MERE STATEMENT OF SUCH A RESULT IS ENOUGH TO CONDEMN
IT. 

THE REASONS ADVANCED FOR THUS DEPRIVING THE PETITIONERS OF THEIR
LIBERTY WITHOUT DUE PROCESS OF LAW ARE UNMERITORIOUS. 

FIRST.  IT IS SAID THAT CONGRESS SO DESIGNED THE SELECTIVE TRAINING
AND SERVICE ACT OF 1940 AS TO PRECLUDE COURTS FROM INQUIRING INTO THE
VALIDITY OF AN INDUCTION ORDER DURING THE COURSE OF A PROSECUTION UNDER
SEC. 11 FOR A WILFUL FAILURE TO OBEY SUCH AN ORDER.  BUT IF THAT IS
TRUE, THE ACT IS UNCONSTITUTIONAL IN THIS RESPECT.  BEFORE A PERSON MAY
BE PUNISHED FOR VIOLATING AN ADMINISTRATIVE ORDER DUE PROCESS OF LAW
REQUIRES THAT THE ORDER BE WITHIN THE AUTHORITY OF THE ADMINISTRATIVE
AGENCY AND THAT IT NOT BE ISSUED IN SUCH A WAY AS TO DEPRIVE THE PERSON
OF HIS CONSTITUTIONAL RIGHTS.  A COURT HAVING JURISDICTION TO TRY SUCH
A CASE HAS A CLEAR, INHERENT DUTY TO INQUIRE INTO THESE MATTERS SO THAT
CONSTITUTIONAL RIGHTS ARE NOT IMPAIRED OR DESTROYED.  CONGRESS LACKS
ANY AUTHORITY TO NEGATIVE THIS DUTY OR TO COMMAND A COURT TO EXERCISE
CRIMINAL JURISDICTION WITHOUT REGARD TO DUE PROCESS OF LAW OR OTHER
INDIVIDUAL RIGHTS.  TO HOLD OTHERWISE IS TO SUBSTITUTE ILLEGAL
ADMINISTRATIVE DISCRETION FOR CONSTITUTIONAL SAFEGUARDS.  AS THIS COURT
HAS PREVIOUSLY SAID, "UNDER OUR SYSTEM THERE IS NO WARRANT FOR THE VIEW
THAT THE JUDICIAL POWER OF A COMPETENT COURT CAN BE CIRCUMSCRIBED BY
ANY LEGISLATIVE ARRANGEMENT DESIGNED TO GIVE EFFECT TO ADMINISTRATIVE
ACTION GOING BEYOND THE LIMITS OF CONSTITUTIONAL AUTHORITY."  ST.
JOSEPH STOCK YARDS CO. V. UNITED STATES, 29 U.S. 38, 52.  THIS
PRINCIPLE HAS BEEN APPLIED MANY TIMES IN THE PAST FOR THE BENEFIT OF
CORPORATIONS.  OHIO VALLEY WATER CO. V. BEN AVON BOROUGH, 253 U.S. 287,
289; DAYTON-GOOSE CREEK R. CO. V. UNITED STATES, 263 U.S. 456, 486;
PANAMA REFINING CO. V. RYAN, 293 U.S. 388, 432; PRENTIS V. ATLANTIC
COAST LINE CO., 211 U.S. 210.  I ASSUME THAT AN INDIVIDUAL IS ENTITLED
TO NO LESS RESPECT. 

BUT THE ACT NEED NOT BE CONSTRUED SO AS TO REACH THIS
UNCONSTITUTIONAL RESULT.  NOTHING IN THE STATUTE COMMANDS COURTS TO
SHUT THEIR EYES TO THE CONSTITUTION OR TO DENY A FULL AND FAIR HEARING
WHEN PERFORMING THEIR FUNCTIONS UNDER SEC. 11, AND WE SHOULD BE
UNWILLING TO IMPLY SUCH A PROHIBITION.  ONCE THE JUDICIAL POWER IS
PROPERLY INVOKED UNDER SEC. 11, A COURT HAS UNQUESTIONED AUTHORITY
UNDER THE CONSTITUTION AND THE JUDICIAL CODE TO ACCORD A DEFENDANT DUE
PROCESS OF LAW AND TO INQUIRE INTO ALLEGED DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS DESPITE THE ABSENCE OF ANY SPECIFIC AUTHORITY
UNDER THE ACT TO THAT EFFECT.  A CONTRARY RESULT CERTAINLY IS NOT
DICTATED BY THE FACT THAT THE ACT MAKES LOCAL BOARD DECISIONS "FINAL,"
SUBJECT TO THE ADMINISTRATIVE APPEAL PROVISIONS.  THIS MERELY
DETERMINES THE POINT OF ADMINISTRATIVE FINALITY, LEAVING TO THE COURTS
THE ULTIMATE AND HISTORICAL DUTY OF JUDGING THE VALIDITY OF THE "FINAL"
ADMINISTRATIVE ORDERS WHICH THEY ARE CALLED UPON TO ENFORCE WITH
CRIMINAL SANCTIONS, AT LEAST WHERE NO OTHER METHOD OF JUDICIAL REVIEW
IS PREVIOUSLY AVAILABLE.    A CONSTRUCTION OF THE ACT SO AS TO INSURE
DUE PROCESS OF LAW AND THE PROTECTION OF CONSTITUTIONAL LIBERTIES IS
NOT AN AMENDMENT TO THE ACT.  IT IS SIMPLY A RECOGNIZED USE OF THE
INTERPRETATIVE PROCESS TO ACHIEVE A JUST AND CONSTITUTIONAL RESULT,
COUPLED WITH A REFUSAL TO ASCRIBE TO CONGRESS AN UNSTATED INTENTION TO
CAUSE DEPRIVATIONS OF DUE PROCESS. 

SECOND.  IT IS URGED THAT THE PURPOSE AND SCHEME OF THE LEGISLATIVE
PROGRAM NECESSITATE THE FORECLOSURE OF A FULL HEARING IN A CRIMINAL
PROCEEDING UNDER SEC. 11.  THE URGENT NEED OF MOBILIZING THE MANPOWER
OF THE NATION FOR EMERGENCY PURPOSES AND THE DIRE CONSEQUENCES OF DELAY
IN THAT PROCESS ARE EMPHASIZED.  FROM THIS PREMISE IT IS ARGUED THAT NO
"LITIGIOUS INTERRUPTION" IN THE SELECTIVE PROCESS CAN BE TOLERATED AND
THAT JUDICIAL INQUIRY INTO THE VALIDITY OF AN INDUCTION ORDER DURING
THE COURSE OF A CRIMINAL PROCEEDING IS A PRIME EXAMPLE OF A "LITIGIOUS
INTERRUPTION." 

THIS ARGUMENT, WHICH WAS PRESSED SO URGENTLY AND SUCCESSFULLY IN THE
FALBO CASE, CONVENIENTLY IGNORES THE REALITIES OF THE SITUATION.  THE
SELECTIVE PROCESS, IN RELATION TO THE PETITIONERS, WAS FINALLY AND
COMPLETELY INTERRUPTED AT THE TIME WHEN THEY DISOBEYED THE INDUCTION
ORDERS AND SUBJECTED THEMSELVES TO POSSIBLE CRIMINAL LIABILITY.  ANY
SUBSEQUENT JUDICIAL REVIEW OF THE INDUCTION ORDERS COULD HAVE NO
POSSIBLE EFFECT UPON THE CONTINUANCE OF THE SELECTIVE PROCESS AND COULD
BEAR NO EARMARKS OF A "LITIGIOUS INTERRUPTION."  THUS AT THE TIME OF
PETITIONERS' TRIALS THE COURTS WERE CONFRONTED WITH ACCOMPLISHED
INTERRUPTIONS RATHER THAN WITH A THEORY.  A DECISION AT THAT POINT TO
GRANT PETITIONERS FULL HEARINGS AND TO PROTECT THEIR CONSTITUTIONAL
RIGHTS WOULD SIMPLY BE A RECOGNITION OF THE FACT THAT THE CONSTITUTION
PROTECTS THE PETITIONERS WHENEVER THEIR LIBERTY IS AT STAKE, WHATEVER
MAY HAVE BEEN THEIR MOTIVES IN DISOBEYING THE ORDERS. 

IT IS ALLEGED, OF COURSE, THAT TO ALLOW A FULL HEARING IN A CRIMINAL
PROCEEDING UNDER THIS ACT WOULD BE TO EXTEND AN OPEN INVITATION TO ALL
INDUCTEES TO DISOBEY THEIR INDUCTION ORDERS AND LITIGATE THE VALIDITY
OF THE ORDERS IN THE SUBSEQUENT TRIALS.  THIS IS AT BEST A POOR EXCUSE
FOR STRIPPING PETITIONERS OF THEIR RIGHTS TO DUE PROCESS OF LAW. 
MOREOVER, THE DEGREE TO WHICH JUDICIAL REVIEW AT THIS STAGE WOULD
ENCOURAGE DISOBEDIENCE OF INDUCTION ORDERS LIES IN THE REALM OF
CONJECTURE AND CANNOT BE DEMONSTRATED ONE WAY OR THE OTHER BY PROOF. 
BUT COMMON SENSE WOULD INDICATE THAT THE NUMBER OF THOSE WILLING TO
UNDERGO THE RISK OF CRIMINAL PUNISHMENT IN ORDER TO TEST THE VALIDITY
OF THEIR INDUCTION ORDERS, WITH THE ATTENDANT DIFFICULTIES OF PROOF,
WOULD BE EXTREMELY SMALL.  ADHERENCE TO DUE PROCESS OF LAW IN CRIMINAL
TRIALS IS UNLIKELY TO IMPEDE THE WAR EFFORT UNDULY.  AND SHOULD
PERCHANCE THE OPPOSITE BE TRUE THERE ARE UNDOUBTEDLY LEGISLATIVE MEANS
OF COMBATING THE PROBLEM. 

THIRD.  THE FURTHER SUGGESTION IS MADE THAT THE ONLY JUDICIAL REVIEW
OF INDUCTION ORDERS AVAILABLE IS BY MEANS OF HABEAS CORPUS PROCEEDINGS
BROUGHT SUBSEQUENT TO INDUCTION AND THAT THIS REMEDY SATISFIES WHATEVER
JUDICIAL REVIEW MAY BE REQUIRED BY THE CONSTITUTION.  I FULLY CONCUR IN
THE DESIRABILITY AND NECESSITY OF SUCH A PROCEEDING FOR THOSE WHO HAVE
BEEN INDUCTED AND WHO WISH TO TEST THE VALIDITY OF THEIR INDUCTION
ORDERS. 

IT SHOULD BE NOTED IN PASSING, HOWEVER, THAT THIS REMEDY MAY BE QUITE
ILLUSORY IN MANY INSTANCES.  IT REQUIRES ONE FIRST TO ENTER THE ARMED
FORCES AND DROP EVERY VESTIGE OF CIVIL RIGHTS.  MILITARY ORDERS BECOME
THE LAW OF LIFE AND VIOLATIONS ARE MET WITH SUMMARY COURT-MARTIAL
PROCEDURE.  NO MORE DRASTIC CONDITION PRECEDENT TO JUDICIAL REVIEW HAS
EVER BEEN FRAMED.  MANY PERSONS WITH RELIGIOUS OR CONSCIENTIOUS
SCRUPLES ARE UNABLE TO MEET SUCH A CONDITION.  BUT EVEN IF A PERSON IS
INDUCTED AND A QUEST IS MADE FOR A WRIT OF HABEAS CORPUS, THE OUTLOOK
IS OFTEN BLEAK.  THE PROCEEDING MUST BE BROUGHT IN THE JURISDICTION IN
WHICH THE PERSON IS THEN DETAINED BY THE MILITARY, WHICH MAY BE
THOUSANDS OF MILES REMOVED FROM HIS HOME, HIS FRIENDS, HIS COUNSEL, HIS
LOCAL BOARD AND THE WITNESSES WHO CAN TESTIFY IN HIS BEHALF.  SHOULD HE
OVERCOME ALL THESE OBSTACLES AND POSSESS ENOUGH MONEY TO PROCEED
FURTHER, HE STILL FACES THE POSSIBILITY OF BEING SHIFTED BY THE
MILITARY AT A MOMENT'S NOTICE INTO ANOTHER JURISDICTION, THUS MAKING
THE PROCEEDING MOOT.  THERE IS LITTLE ASSURANCE, MOREOVER, THAT THE
MILITARY WILL TREAT HIS EFFORTS TO OBTAIN THE WRIT WITH SYMPATHETIC
UNDERSTANDING.  THESE PRACTICAL DIFFICULTIES MAY THUS DESTROY WHATEVER
EFFICACY THE REMEDY MIGHT OTHERWISE HAVE AND CAST CONSIDERABLE DOUBT ON
THE ASSUMPTION THAT HABEAS CORPUS PROCEEDINGS NECESSARILY GUARANTEE DUE
PROCESS OF LAW TO INDUCTEES. 

BUT THE AVAILABILITY OF JUDICIAL REVIEW THROUGH HABEAS CORPUS
PROCEEDINGS MISSES THE ISSUE IN THIS CASE.  SUCH A PROCEEDING MAY OR
MAY NOT PROVIDE AN ADEQUATE REMEDY FOR THE PERSON WHO HAS BEEN
INDUCTED.  WE ARE DEALING HERE, HOWEVER, WITH TWO PERSONS WHO HAVE NOT
BEEN INDUCTED AND WHO NEVER WILL BE INDUCTED BY FORCE OF THE ORDERS
UNDER ATTACK.  THE WRIT OF HABEAS CORPUS FOLLOWING INDUCTION IS THUS A
COMPLETELY NON-EXISTENT REMEDY SO FAR AS THESE PETITIONERS ARE
CONCERNED.  IT NEITHER ADDS TO NOR DETRACTS FROM THE REASONS FOR
GRANTING JUDICIAL REVIEW IN THESE CRIMINAL PROCEEDINGS. 

IF, AS I BELIEVE, JUDICIAL REVIEW OF SOME SORT AND AT SOME TIME IS
REQUIRED BY THE CONSTITUTION, THEN WHEN AND WHERE CAN THESE PETITIONERS
SECURE THAT REVIEW?  THEY HAVE NOT HAD A PRIOR CHANCE TO OBTAIN REVIEW
OF THE INDUCTION ORDERS; NOR WILL THEY SUBSEQUENTLY BE ACCORDED THE
OPPORTUNITY TO TEST THEIR CONTENTIONS IN COURT.  IT IS NO ANSWER THAT
THEY SHOULD HAVE PURSUED DIFFERENT COURSES OF ACTION AND SECURED WRITS
OF HABEAS CORPUS AFTER INDUCTION.  DUE PROCESS OF LAW IS NOT DISPENSED
ON THE BASIS OF WHAT PEOPLE MIGHT HAVE OR SHOULD HAVE DONE.  THE SOLE
ISSUE HERE IS WHETHER DUE PROCESS OF LAW IS TO BE GRANTED NOW OR
NEVER.  THE CHOICE SEEMS OBVIOUS. 

BY DENYING JUDICIAL REVIEW IN THIS CRIMINAL PROCEEDING, THE COURTS
BELOW IN EFFECT SAID TO EACH PETITIONER:  YOU HAVE DISOBEYED AN
ALLEGEDLY ILLEGAL ORDER FOR WHICH YOU MUST BE PUNISHED WITHOUT THE
BENEFIT OF THE JUDICIAL REVIEW REQUIRED BY THE CONSTITUTION, ALTHOUGH
IF YOU HAD OBEYED THE ORDER YOU WOULD HAVE HAD ALL THE JUDICIAL REVIEW
NECESSARY.  I AM AT A LOSS TO APPRECIATE THE LOGIC OR JUSTICE OF THAT
POSITION.  IT DENIES DUE PROCESS OF LAW TO ONE WHO IS CHARGED WITH A
CRIME AND GRANTS IT TO ONE WHO IS OBEDIENT.  IT CLOSES THE DOOR OF THE
CONSTITUTION TO A PERSON WHOSE LIBERTY IS AT STAKE AND WHOSE NEED FOR
DUE PROCESS OF LAW IS MOST ACUTE.  IN SHORT, IT CONDEMNS A MAN WITHOUT
A FAIR HEARING. 

THERE IS SOMETHING BASICALLY WRONG AND UNJUST ABOUT A JURIDICAL
SYSTEM THAT SANCTIONS THE IMPRISONMENT OF A MAN WITHOUT EVER ACCORDING
HIM THE OPPORTUNITY TO CLAIM THAT THE CHARGE MADE AGAINST HIM IS
ILLEGAL.  I AM NOT YET WILLING TO CONCLUDE THAT WE HAVE SUCH A SYSTEM
IN THIS NATION.  EVERY FIBER OF THE CONSTITUTION AND EVERY LEGAL
PRINCIPLE OF JUSTICE AND FAIRNESS INDICATE OTHERWISE.  THE REPORTS ARE
FILLED WITH DECISIONS AFFIRMING THE RIGHT TO A FAIR AND FULL HEARING,
THE OPPORTUNITY TO PRESENT EVERY POSSIBLE DEFENSE TO A CRIMINAL CHARGE
AND THE CHANCE AT SOME POINT TO CHALLENGE AN ADMINISTRATIVE ORDER
BEFORE PUNISHMENT.  THOSE RUDIMENTARY CONCEPTS ARE INGRAINED IN OUR
LEGAL FRAMEWORK AND STAND READY FOR USE WHENEVER LIFE OR LIBERTY IS IN
PERIL.  THE NEED FOR THEIR APPLICATION IN THIS INSTANCE SEEMS BEYOND
DISPUTE. 

WE MUST BE COGNIZANT OF THE FACT THAT WE ARE DEALING HERE WITH A
LEGISLATIVE MEASURE BORN OF THE CATACLYSM OF WAR, WHICH NECESSITATES
MANY TEMPORARY RESTRICTIONS ON PERSONAL LIBERTY AND FREEDOM.  BUT THE
WAR POWER IS NOT A BLANK CHECK TO BE USED IN BLIND DISREGARD OF ALL THE
INDIVIDUAL RIGHTS WHICH WE HAVE STRUGGLED SO LONG TO RECOGNIZE AND
PRESERVE.  IT MUST BE USED WITH DISCRETION AND WITH A SENSE OF
PROPORTIONATE VALUES.  IN THIS INSTANCE IT SEEMS HIGHLY IMPROBABLE THAT
THE WAR EFFORT NECESSITATES THE DESTRUCTION OF THE RIGHT OF A PERSON
CHARGED WITH A CRIME TO OBTAIN A COMPLETE REVIEW AND CONSIDERATION OF
HIS DEFENSE.  AS LONG AS COURTS ARE OPEN AND FUNCTIONING, JUDICIAL
REVIEW IS NOT EXPENDABLE. 

ALL OF THE MOBILIZATION AND ALL OF THE WAR EFFORT WILL HAVE BEEN IN
VAIN IF, WHEN ALL IS FINISHED, WE DISCOVER THAT IN THE PROCESS WE HAVE
DESTROYED THE VERY FREEDOMS FOR WHICH WE FOUGHT.  THESE CASES REPRESENT
A SMALL BUT SIGNIFICANT REFLECTION OF THAT FACT.  THE REVERSAL OF THE
JUDGMENTS BELOW IS THEREFORE IN LINE WITH THE HIGHEST TRADITIONS OF THE
COURT. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I JOIN IN THE RESULT IN EACH CASE AND IN THE COURT'S OPINION FOR THE
REASONS IT SETS FORTH.  A FURTHER REASON WOULD FORCE ME TO THIS
RESULT.  IN MY JUDGMENT A CONTRARY CONSTRUCTION WOULD INVALIDATE THE
STATUTE.  I HAVE NO DOUBT THAT CONGRESS COULD MAKE ADMINISTRATIVE OR
EXECUTIVE ACTION FINAL IN SUCH MATTERS AS THESE IN THE SENSE OF
EXCLUDING ALL JUDICIAL REVIEW, EXCEPTING ONLY WHAT MAY BE REQUIRED BY
THE CONSTITUTION IN THE ABSENCE OF SUSPENSION OF THE WRIT OF HABEAS
CORPUS.  FN1  CF. EX PARTE MCCARDLE, 6 WALL.  318; LOCKERTY V.
PHILLIPS, 319 U.S. 182; NG FUNG HO V. WHITE, 259 U.S. 276. 

BUT AS I DO NOT THINK CONGRESS CAN MAKE IT A CRIME PUNISHABLE BY THE
FEDERAL JUDICIAL POWER TO VIOLATE AN ADMINISTRATIVE ORDER WITHOUT
AFFORDING AN ADEQUATE OPPORTUNITY TO SHOW ITS CONSTITUTIONAL
INVALIDITY, CF. YAKUS V. UNITED STATES, 321 U.S. 414, 460, DISSENTING
OPINION,  FN2 SO EVEN MORE DO I NOT THINK CONGRESS CAN MAKE CRIMINAL
THE DISOBEDIENCE TO SUCH AN ORDER ALLOWING NO OPPORTUNITY WHATEVER FOR
SHOWING ITS UNCONSTITUTIONALITY.  IT IS ONE THING TO DENY JURISDICTION
OF THE COURTS ALTOGETHER, SAVE IN SO FAR AS THE CONSTITUTION OF ITS OWN
FORCE MAY PRESERVE THE JURISDICTION.  IT IS ALTOGETHER DIFFERENT TO
CONFER JURISDICTION FOR ENFORCEMENT PURPOSES, BUT IN DOING SO TO CUT
OFF ALL RIGHT OF DEFENSE ON CONSTITUTIONAL GROUNDS. 

TO SUSTAIN SUCH A VIEW NOT ONLY WOULD HAVE THE COURTS MARCHING UP THE
HILL IN THE CRIMINAL CASE AND DOWN AGAIN IN HABEAS CORPUS.  FN3  IT
WOULD MAKE THE JUDICIAL FUNCTION A RUBBER STAMP IN CRIMINAL CASES FOR
ADMINISTRATIVE OR EXECUTIVE ACTION.  AND IT WOULD CLOSE THE TRAP WHICH,
IN BILLINGS V. TRUESDELL, 321 U.S. 542, 558, WE SAID WOULD BE SET IF
FALBO V. UNITED STATES, 320 U.S. 549, WERE CONSTRUED TO PERMIT WHAT IT
IS NOW SOUGHT TO HAVE DONE TO THE PETITIONERS. 

FN1  UNDER THE SELECTIVE DRAFT ACT OF 1917, THE CIVIL COURTS WERE NOT
CALLED UPON TO ENFORCE INDUCTION ORDERS BY CRIMINAL PROCEEDINGS; FOR
THE RECEIPT OF SUCH AN ORDER AUTOMATICALLY SUBJECTED A DRAFTEE TO
MILITARY LAW AND FOR DISOBEDIENCE THEREOF HE WAS TRIABLE BY A COURT
MARTIAL FOR DESERTION.  SEE UNITED STATES V. MCINTYRE, 4 F.2D 823;
BILLINGS V. TRUESDELL, 321 U.S. 542, 545-546; CF. THE SELECTIVE DRAFT
LAW CASES, 245 U.S. 366. 

FN2  AND SEE THE AUTHORITIES CITED IN THE COURT'S OPINION, 321 U.S.
AT 433, 435.  APART FROM THE QUESTION OF THE VALIDITY OF SPLITTING A
CRIMINAL TRIAL INTO CIVIL AND HIGHLY ATTENUATED CRIMINAL PARTS, THE
ISSUE IN THE YAKUS CASE RELATED TO THE ADEQUACY OF THE OPPORTUNITY
ALLOWED FOR CHALLENGING THE ORDER'S VALIDITY IN THE EMERGENCY COURT OF
APPEALS.  THE RULING DID NOT COMPREHEND A SITUATION WHERE NO
OPPORTUNITY IS AFFORDED PRIOR TO OR DURING THE TRIAL. 

FN3  IT IS NOT NECESSARY IN THESE CASES TO DETERMINE WHETHER CONGRESS
COULD CONFINE THE SCOPE OF REVIEW IN THE CRIMINAL CAUSE, ON
CONSTITUTIONAL GROUNDS, TO THOSE WHICH MIGHT BE ASSERTED IN HABEAS
CORPUS AFTER CONVICTION.  THE VERY FACT THAT ORDINARILY THE PERMISSIBLE
SCOPE OF SUCH OBJECTIONS IN THE LATTER TYPE OF PROCEEDING IS
CONSIDERABLY MORE RESTRICTED THAN IN THE FORMER IS ADDITIONAL REASON
FOR NOT ACCEPTING THE GOVERNMENT'S VIEW THAT CONGRESS INTENDED TO ALLOW
REVIEW BY HABEAS CORPUS BUT NOT BY DEFENSE IN THE CRIMINAL TRIAL. 

THAT VIEW, OF COURSE, REJECTS THE IDEA THAT "FINAL" IN THE STATUTE
"MEANS FINAL," THAT IS, BEYOND JUDICIAL REACH IN ANY MANNER, AS IT
LIKEWISE IMPLICITLY BUT NECESSARILY DENIES THAT "WITHIN THE
JURISDICTION" - OF THE LOCAL BOARDS - IS WHOLLY GEOGRAPHICAL. 

MR. JUSTICE FRANKFURTER, CONCURRING IN RESULT. 

ALTHOUGH CONGRESS, IN 1940, AND BY REENACTMENT SINCE, PROVIDED THAT
WHEN A DRAFT BOARD DETERMINES WHETHER A REGISTRANT IS ENTITLED TO
EXEMPTION OR DEFERMENT THE BOARD'S DECISION IS "FINAL," THE COURT NOW
CONCLUDES THAT SUCH A DECISION IS NOT FINAL BUT MAY BE REVIEWED WHEN
THE REGISTRANT IS TRIED BEFORE A JURY FOR WILFUL DISOBEDIENCE OF A
BOARD'S ORDER.  NOT ONLY IS SUCH A RESULT OPPOSED TO THE EXPRESSED WILL
OF CONGRESS.  IT RUNS COUNTER TO THE ACHIEVEMENT OF THE GREAT OBJECT
AVOWED BY CONGRESS IN ENACTING THIS LEGISLATION; IT CONTRADICTS THE
SETTLED PRACTICE UNDER THE SELECTIVE SERVICE ACT THROUGHOUT THE WAR
YEARS, RECOGNIZED AS SUCH BY AUTHORITATIVE CONGRESSIONAL OPINION; IT
REVERSES ALL THE CIRCUIT COURTS OF APPEALS BEFORE WHOM THE MATTER HAS
COME, CONSTITUTING AN IMPRESSIVE BODY OF DECISIONS AND EXPRESSING THE
VIEWS OF MORE THAN FORTY JUDGES.    THE CASE IS THIS.  ESTEP WAS A
JEHOVAH'S WITNESS.  BY VIRTUE OF THAT FACT HE CLAIMED THE PROTECTION OF
SEC. 5(D) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940(54 STAT.
885, 888; 50 U.S.C. APP. SEC. 305(D)), WHICH EXEMPTS FROM SERVICE
"REGULAR OR DULY ORDAINED MINISTERS OF RELIGION  ..."  HIS LOCAL BOARD
RULED AGAINST THIS CLAIM AND CLASSIFIED ESTEP AS I-A, THAT IS,
AVAILABLE FOR MILITARY SERVICE, AND ORDERED HIM TO REPORT FOR
INDUCTION.  HE REPORTED AND WAS ACCEPTED BY THE NAVY BUT REFUSED TO
SUBMIT TO INDUCTION.  SEE BILLINGS V. TRUESDELL, 321 U.S. 542.  THIS
PROSECUTION WAS THEN COMMENCED UNDER SEC. 11 OF THE ACT (54 STAT. 885,
894; 50 U.S.C. APP. SEC. 311).  THAT SECTION MAKES IT AN OFFENSE FOR
ANY PERSON WILFULLY TO DISOBEY "ANY OF THE PROVISIONS OF THIS ACT, OR
THE RULES OR REGULATIONS MADE OR DIRECTIONS GIVEN THEREUNDER ..." 
CONCEDEDLY ESTEP FAILED TO CARRY OUT THE ORDER OF THE BOARD TO SUBMIT
TO INDUCTION.  ESTEP SOUGHT TO DEFEND DISOBEDIENCE ON THE GROUND THAT
THE LOCAL BOARD HAD IMPROPERLY DENIED HIS CLAIM OF EXEMPTION FROM
SERVICE IN THAT THEY REFUSED TO CLASSIFY HIM AS A "REGULAR OR DULY
ORDAINED MINISTER OF RELIGION  ..."  HE ALSO OFFERED IN DEFENSE PROOF
OF ALLEGED MISCONDUCT BY THE BOARD BEARING ON HIS RIGHT OF APPEAL FROM
THE BOARD'S DECISION.  DISALLOWANCE OF THESE DEFENSES BY THE DISTRICT
COURT, WHICH AFTER CONVICTION WERE SUSTAINED BY THE CIRCUIT COURT OF
APPEALS, PRESENTS TWO ISSUES FOR OUR CONSIDERATION:  I. IS THE DECISION
OF A LOCAL BOARD DENYING A CLAIM OF EXEMPTION SUBJECT TO
RECONSIDERATION IN A CRIMINAL PROSECUTION FOR KNOWINGLY FAILING TO
DISCHARGE THE DUTIES REQUIRED BY THE ACT AS A RESULT OF SUCH
CLASSIFICATION?  II.  IS ACTION BY THE LOCAL BOARD WHEREBY A REGISTRANT
IS CUT OFF FROM THE OPPORTUNITIES OF A REVIEW WITHIN THE SELECTIVE
SERVICE PROCESS AS AUTHORIZED BY THE ACT AVAILABLE AS A DEFENSE IN SUCH
PROSECUTION FOR DISOBEDIENCE OF THE LOCAL BOARD'S ORDER?  THESE ARE
QUESTIONS OF SUCH MOMENT IN THE ENFORCEMENT OF THE SELECTIVE SERVICE
ACT AS TO CALL FOR AN ADEQUATE STATEMENT OF THE REASONS THAT IMPEL
DISAGREEMENT WITH THE MAJOR CONCLUSION OF THE COURT. 

                       I. 

DID CONGRESS PLACE WITHIN THE SELECTIVE SERVICE SYSTEM THE AUTHORITY
FOR DETERMINING WHO SHALL AND WHO SHALL NOT SERVE IN THE ARMED
SERVICES, WHO SHALL AND WHO SHALL NOT ENJOY THE EXEMPTIONS AND
DEFERMENTS BY WHICH CONGRESS HAS QUALIFIED THE DUTY OF ALL TO SERVE? 
OR, DID IT LEAVE SUCH DETERMINATION FOR RECONSIDERATION IN TRIALS
BEFORE JURIES OF PERSONS CHARGED WITH WILFUL DISOBEDIENCE OF DUTIES
DEFINED BY THE ACT?  THIS IS THE CRUCIAL ISSUE IN THE CASE AND TOUCHES
THE VERY NERVE-CENTER OF THE SELECTIVE SERVICE ACT. 

ONE WOULD SUPPOSE THAT CONGRESS EXPRESSED ITS WILL WITH THE UTMOST
CLARITY, PRECLUDING THE NEED OF LABORED ARGUMENTATION AS TO ITS
PURPOSE.  SECTION 10(A)(2) GIVES THE ANSWER. 

"SUCH LOCAL BOARDS, UNDER RULES AND REGULATIONS PRESCRIBED BY THE
PRESIDENT, SHALL HAVE POWER WITHIN THEIR RESPECTIVE JURISDICTIONS TO
HEAR AND DETERMINE, SUBJECT TO THE RIGHT OF APPEAL TO THE APPEAL BOARDS
HEREIN AUTHORIZED, ALL QUESTIONS OR CLAIMS WITH RESPECT TO INCLUSION
FOR, OR EXEMPTION OR DEFERMENT FROM, TRAINING AND SERVICE UNDER THIS
ACT OF ALL INDIVIDUALS WITHIN THE JURISDICTION OF SUCH LOCAL BOARDS. 
THE DECISIONS OF SUCH LOCAL BOARDS SHALL BE FINAL EXCEPT WHERE AN
APPEAL IS AUTHORIZED IN ACCORDANCE WITH SUCH RULES AND REGULATIONS AS
THE PRESIDENT MAY PRESCRIBE."  54 STAT. 885, 893; 50 U.S.C. APP. SEC.
310(A)(2). 

THESE WORDS CAN ONLY MEAN WHAT THEY APPEAR TO MEAN IF THEY ARE READ
AS ORDINARY WORDS SHOULD BE READ.  ORDINARY WORDS SHOULD BE READ WITH
THEIR COMMON, EVERYDAY MEANING WHEN THEY SERVE AS DIRECTIONS FOR
ORDINARY PEOPLE.  IF LEGISLATION WAS EVER DESIGNED TO DEFINE THE RIGHTS
AND DUTIES OF THE VAST BODY OF ORDINARY PEOPLE, IT IS THE SELECTIVE
SERVICE ACT.  ONE NEED NOT ITALICIZE "FINAL" TO MAKE FINAL MEAN FINAL,
WHEN NOWHERE IN THE ACT IS THERE ANY DEROGATION OF THIS CONGRESSIONAL
COMMAND OF FINALITY TO "THE DECISIONS OF SUCH LOCAL BOARDS," SUBJECT
ONLY TO REVIEWABILITY WITHIN THE SELECTIVE SERVICE SYSTEM. 

BUT IF ONE GOES BEYOND THE MEANING THAT THE TEXT SPONTANEOUSLY
YIELDS, ALL OTHER RELEVANT CONSIDERATIONS ONLY CONFIRM WHAT THE TEXT
EXPRESSES.  TO ALLOW JUDICIAL REVIEW OF A BOARD'S DECISION ON
CLASSIFICATION IS NOT TO RESPECT THE CONTEXT OF PURPOSE INTO WHICH A
SPECIFIC PROVISION OF A LAW IS PROPERLY PLACED.  TO DO SO DISREGARDS
THAT PURPOSE.  AND CONGRESS DID NOT RELY ON THE PUBLIC UNDERSTANDING OF
THE PURPOSE THAT MOVED IT IN PASSING THE SELECTIVE SERVICE ACT, AS WELL
IT MIGHT HAVE, CONSIDERING THAT THE ACT WAS PASSED IN SEPTEMBER, 1940. 
IT WAS EXPLICIT:  "THE CONGRESS HEREBY DECLARES THAT IT IS IMPERATIVE
TO INCREASE AND TRAIN THE PERSONNEL OF THE ARMED FORCES OF THE UNITED
STATES."  SEC. 1(A), 54 STAT. 885; 50 U.S.C. APP. SEC. 301(A). 

THERE CANNOT HAVE BEEN MANY INSTANCES IN OUR NATIONAL LIFE WHEN
CONGRESS STAMPED ITS LEGISLATION AS "IMPERATIVE."  AND HISTORY HAS
AMPLY UNDERSCORED THE DESPERATE URGENCY.  CONGRESS DEEMED IT IMPERATIVE
TO SECURE A VAST CITIZEN ARMY WITH THE UTMOST EXPEDITION.  IT DID SO
WITH DUE REGARD FOR THE INDIVIDUAL INTERESTS BY GIVING AMPLE
OPPORTUNITIES, WITHIN THE ELABORATE SYSTEM WHICH IT ESTABLISHED, FOR
SUPERVISION OF THE DECISIONS OF THE MULTITUDINOUS DRAFT BOARDS ON THE
SELECTION OF INDIVIDUALS FOR SERVICE.  AS TO SUCH LEGISLATION, EVEN
WERE THE LANGUAGE NOT EXPLICIT, EVERY PROVISION OF THE ACT SHOULD BE
CONSTRUED TO PROMOTE FULFILLMENT OF THE IMPERATIVE NEED WHICH INSPIRED
IT.  SURELY IT WOULD HAMPER THE AIM OF CONGRESS TO SUBJECT THE
DECISIONS OF THE SELECTIVE PROCESS IN DETERMINING WHO IS AMENABLE TO
SERVICE TO RECONSIDERATION BY THE CUMBERSOME PROCESS OF TRIAL BY JURY,
ADMIRABLY SUITED AS THAT IS FOR THE FAMILIAR CONTROVERSIES WHEN THE
NATION'S LIFE IS NOT AT STAKE.  TO AVOID SUCH A PALPABLE INROAD UPON
CONGRESSIONAL PURPOSE, WE NEED NOT DRAW ON IMPLICATIONS.  WE MUST
MERELY RESIST UNWARRANTED IMPLICATIONS THAT STERILIZE WHAT CONGRESS HAS
EXPRESSLY REQUIRED. 

IN CONSTRUING THE ACT, THIS COURT HAS HERETOFORE APPLIED THE REASONS
WHICH LED CONGRESS TO RELY WHOLLY ON THE SELECTIVE SERVICE SYSTEM IN
DETERMINING THE RIGHTS OF INDIVIDUALS.  THIS IS WHAT WE SAID TWO YEARS
AGO: 

"TO MEET THE NEED WHICH IT FELT FOR MOBILIZING NATIONAL MANPOWER IN
THE SHORTEST PRACTICABLE PERIOD, CONGRESS ESTABLISHED A MACHINERY WHICH
IT DEEMED EFFICIENT FOR INDUCTING GREAT NUMBERS OF MEN INTO THE ARMED
FORCES.  CAREFUL PROVISION WAS MADE FOR FAIR ADMINISTRATION OF THE
ACT'S POLICIES WITHIN THE FRAMEWORK OF THE SELECTIVE SERVICE PROCESS." 

WE SO RULED IN FALBO V. UNITED STATES, 320 U.S. 549, 554.  THAT WAS A
CASE IN WHICH WE HELD THAT A CHALLENGE TO A LOCAL BOARD'S
CLASSIFICATION CANNOT BE RAISED UPON A TRIAL LIKE THE PRESENT FOR
VIOLATION OF THE COURT'S ORDER, WHERE THE REGISTRANT DISOBEYS THE ORDER
BEFORE HE IS ACCEPTED FOR NATIONAL SERVICE.  BUT THE CONGRESS MADE THE
DECISIONS OF THE BOARD "FINAL" WITHOUT REGARD TO THE STAGE AT WHICH THE
REGISTRANT DISOBEYS IT.  THE COMMAND OF CONGRESS MAKES THE DECISION OF
THE BOARD NO LESS FINAL AFTER THE REGISTRANT HAS SUBMITTED TO THE PRE
INDUCTION EXAMINATION THAN BEFORE SUCH SUBMISSION.  THE FINALITY OF THE
BOARD IS NEITHER DIMINISHED, NOR THE AUTHORITY OF THE COURTS TO REVIEW
SUCH DECISION ENLARGED, BECAUSE A REGISTRANT FLOUTS THE SELECTIVE
SERVICE PROCESS AT AN EARLY OR AT A LATE STAGE.  THE LANGUAGE OF THE
STATUTE IS UNQUALIFIED AND ALL-INCLUSIVE: "THE DECISIONS OF SUCH LOCAL
BOARDS SHALL BE FINAL EXCEPT WHERE AN APPEAL IS AUTHORIZED IN
ACCORDANCE WITH SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY
PRESCRIBE." 

SUCH HAS BEEN THE CONSTRUCTION OF MORE THAN FORTY JUDGES IN THE
CIRCUIT COURTS OF APPEALS.  FN1 THE QUESTION RAISED BY THE FACTS OF
THIS CASE HAS COME BEFORE THE CIRCUIT COURTS OF APPEALS FOR THE FIRST,
THE SECOND, THE THIRD, THE FOURTH, THE FIFTH, THE SIXTH, THE SEVENTH
AND THE EIGHTH CIRCUITS.  ALL, EIGHT OF THEM, HAVE RULED THAT JUDICIAL
REVIEW OF A DRAFT BOARD CLASSIFICATION IS NOT AVAILABLE, IN A CRIMINAL
PROSECUTION, EVEN THOUGH THE REGISTRANT HAS SUBMITTED TO THE PRE
INDUCTION PHYSICAL EXAMINATION.  SIRSKI V. UNITED STATES, 145 F.2D
749(C.C.A. 1ST, 1944); UNITED STATES V. FLAKOWICZ, 146 F.2D
874(C.C.A.2D, 1945); UNITED STATES V. ESTEP, 150 F.2D 768(C.C.A. 3D,
1945); SMITH V. UNITED STATES, 148 F.2D 288(C.C.A.4TH, 1945); KOCH V.
UNITED STATES, 150 F.2D 762(C.C.A.4TH, 1945); FLETCHER V. UNITED
STATES, 129 F.2D 262(C.C.A.5TH, 1942); KLOPP V. UNITED STATES, 148 F.2D
659(C.C.A.6TH, 1945); UNITED STATES V. RINKO, 147 F.2D 1(C.C.A.7TH,
1945); GIBSON V. UNITED STATES, 149 F.2D 751(C.C.A.8TH, 1945).  FN2
SUCH WAS THE IMPACT OF THIS COURT'S REASONING IN THE FALBO CASE THAT IT
GREATLY INFLUENCED THE RULING OF THE CIRCUIT COURTS OF APPEALS AS TO
THE FINALITY OF LOCAL BOARD ORDERS AND PRACTICALLY SILENCED WHATEVER
DOUBTS MAY THERETOFORE HAVE BEEN HELD BY A FEW OF THE JUDGES. 

THAT IT WAS DURING THE CRUCIAL WAR YEARS THAT THE ACT WAS THUS
INTERPRETED AND ENFORCED, WHEREBY THE RAISING OF THE ARMED FORCES WAS
SAVED FROM OBSTRUCTION BY NOT SUBJECTING THE SELECTIVE PROCESS TO
JUDICIAL REVIEW WHEN CONGRESS FORBADE IT, IS OF COURSE NO REASON FOR
MISCONSTRUING IT NOW AND RELAXING THE MODE OF ADMINISTRATION WHICH
CONGRESS DEEMED NECESSARY FOR ITS EFFECTIVENESS. 

CONGRESS NOT ONLY SO WILLED BUT THOSE ESPECIALLY ENTRUSTED WITH
FORMULATING THIS LEGISLATION WERE FULLY AWARE OF THE JUDICIAL
CONSEQUENCES OF WHAT IT PRESCRIBED.  THIS IS SHOWN BY AN AUTHORITATIVE
REPORT OF THE HOUSE COMMITTEE ON MILITARY AFFAIRS WHEN THAT COMMITTEE,
THE ORIGINATOR OF THE ACT, WAS CONSIDERING AMENDMENTS ON RENEWAL OF THE
ACT.  IN ITS REPORT IN JANUARY, 1945, MORE THAN FOUR YEARS AFTER THE
ACT HAD BEEN IN OPERATION, THE COMMITTEE THUS STATED WITH ACCURACY AND
ACQUIESCENCE THE UNANIMITY OF JUDICIAL DECISIONS IN SUPPORT OF THE
RESPECT BY THE JUDICIARY OF FINALITY OF THE DECISIONS OF THE DRAFT
BOARD: 

"UNDER THE ACT AS IT IS NOW WRITTEN, REGISTRANTS WHO ARE ORDERED TO
SUBMIT TO INDUCTION INTO THE ARMED FORCES MAY NOT REFUSE AND DEFEND
SUCH REFUSALS IN A CRIMINAL PROSECUTION ON THE GROUND THAT THEIR
CLASSIFICATIONS WERE NOT GIVEN FAIR CONSIDERATION BY THEIR BOARDS.  IN
ORDER TO OBTAIN A JUDICIAL DETERMINATION OF SUCH ISSUES SUCH
REGISTRANTS MUST FIRST SUBMIT TO INDUCTION AND RAISE THE ISSUE BY
HABEAS CORPUS."  H.R. REP. NO. 36, 79TH CONG., 1ST SESS. (1945) 4-5. 

CONGRESS WANTED MEN TO GET INTO THE ARMY, NOT TO LITIGATE ABOUT
GETTING IN.  AND SO IT LEGISLATED ON THE ASSUMPTION THAT ITS CAREFULLY
DEVISED SCHEME FOR DETERMINING WITHIN THE SELECTIVE SERVICE SYSTEM, WHO
WAS UNDER DUTY TO SERVE IN THE ARMY WOULD GO AWRY TOO SELDOM TO JUSTIFY
ALLOWANCE OF REVIEW BY THE COURTS.  IF CHALLENGES TO SUCH DETERMINATION
BY THE SELECTIVE SERVICE SYSTEM WERE FOUND BASELESS, AS THEY WERE SO
FOUND AS A MATTER OF EXPERIENCE IN ALL BUT A NEGLIGIBLE NUMBER OF
INSTANCES, THE MEN HAVING SUBMITTED TO INDUCTION WOULD BE IN THE ARMY,
AVAILABLE AS SUCH, AND NOT IN PRISON FOR DISOBEDIENCE.  ACCORDINGLY,
CONGRESS LEGISLATED TO DISCOURAGE OBSTRUCTION AND DELAY THROUGH
DILATORY COURT PROCEEDINGS THAT WOULD HAVE BEEN INEVITABLE IF JUDICIAL
REVIEW OF CLASSIFICATION HAD BEEN AFFORDED DURING THE WAR YEARS. 

THE COURT FINDS SUPPORT FOR ITS READING THAT "FINAL" DOES NOT MEAN
FINAL IN THE FACT THAT NOT EVEN AT A TIME OF OUR GREATEST NATIONAL
EMERGENCY WAS THE WRIT OF HABEAS CORPUS WITHDRAWN AS THE ULTIMATE
SAFEGUARD OF PERSONAL LIBERTY.  SEE U.S. CONSTITUTION, ART. I, SEC. 9,
CL. 2; 1 STAT. 81, AS AMENDED, 28 U.S.C. SEC. 451.  BUT THIS GENERAL
RIGHT TO QUESTION THE ENTIRE WANT OF A LEGAL FOUNDATION FOR A RESTRAINT
IS NO MEASURE OF THE ISSUES THAT CONGRESS LEFT OPEN FOR DETERMINATION
IN A JURY TRIAL FOR DISOBEDIENCE OF ORDERS OF THE LOCAL DRAFT BOARDS
MADE "FINAL" BY SEC. 10(A)(2).  STILL LESS CAN IT JUSTIFY NULLIFICATION
OF AN EXPLICIT DIRECTION BY CONGRESS THAT SUCH ORDERS SHALL FINALLY BE
DETERMINED WITHIN THE FRAMEWORK OF THE SELECTIVE SERVICE SYSTEM.  THE
ISSUES IN A HABEAS CORPUS PROCEEDING ARE QUICKLY JOINED, STRICTLY
LIMITED AND SWIFTLY DISPOSED OF BY A SINGLE JUDGE.  SEE 14 STAT. 385;
28 U.S.C. SEC. 465.  HABEAS CORPUS PROCEEDINGS ARE FREED FROM THE
CUMBERSOMENESS WHICH IS A PROPER PRICE TO PAY FOR THE COUNTERVAILING
ADVANTAGES OF JURY TRIALS IN APPROPRIATE SITUATIONS.  HABEAS CORPUS
"COMES IN FROM THE OUTSIDE," AFTER REGULAR PROCEEDINGS FORMALLY DEFINED
BY LAW HAVE ENDED, "NOT IN SUBORDINATION TO THE PROCEEDINGS, AND
ALTHOUGH EVERY FORM MAY HAVE BEEN PRESERVED OPENS THE INQUIRY WHETHER
THEY HAVE BEEN MORE THAN AN EMPTY SHELL."  HOLMES, J., DISSENTING IN
FRANK V. MANGUM, 237 U.S. 309, 346.  HABEAS CORPUS, AFTER CONVICTION,
COULD NOT, OF COURSE, SERVE AS A REVISORY PROCESS OF THE DETERMINATION
OF CLASSIFICATION WHICH CONGRESS LODGED WITH FINALITY IN THE DRAFT
BOARDS.  IT COULD ONLY BE USED IN THOSE HARDLY CONCEIVABLE SITUATIONS
IN WHICH THE PROCEEDINGS BEFORE THE DRAFT BOARD WERE A MERE SHAM,
"NOTHING BUT AN EMPTY FORM."  IBID.  THE AVAILABILITY IN SUCH A REMOTE
CONTINGENCY OF HABEAS CORPUS EVEN AFTER CONVICTION IS CERTAINLY NO
REASON FOR DEFLECTING AND CONFUSING A TRIAL FOR THE SIMPLE ISSUE
DEFINED BY SEC. 11, NAMELY, WHETHER THERE WAS A WILFUL DISREGARD OF AN
ORDER MADE BY THE SELECTIVE SERVICE SYSTEM, A SYSTEM RANGING FROM THE
LOCAL BOARD TO THE PRESIDENT.  IT IS ONE THING FOR THE WRIT OF HABEAS
CORPUS TO BE AVAILABLE EVEN THOUGH AN ADMINISTRATIVE ACTION MAY
OTHERWISE BE "FINAL."  SEE E.G., NG FUNG HO V. WHITE, 259 U.S. 276.  IT
IS QUITE ANOTHER TO INTERPOLATE JUDICIAL REVIEW AND THEREBY TO DISRUPT
A WHOLE SCHEME OF LEGISLATION UNDER WHICH MILLIONS OF ORDERS NEED
PROMPTLY TO BE MADE AND PROMPTLY TO BE RESPECTED AND WERE THEREFORE
ENDOWED WITH FINALITY WHEN SANCTIONS FOR DISOBEDIENCE ARE SOUGHT. 
ANOTHER GROUND FOR DENYING THE EVIDENT PURPOSE OF CONGRESS AND
DISREGARDING THE TERMS IN WHICH IT EXPRESSED THAT PURPOSE, IS THE
SUGGESTION THAT THE VALIDITY OF A CLASSIFICATION GOES TO THE
"JURISDICTION OF THE BOARD" TO ISSUE AN ORDER TO REPORT FOR INDUCTION. 
BUT CONGRESS DID NOT SAY THAT "THE DECISION OF SUCH LOCAL BOARDS WHEN
PROPERLY ACTING UNDER THEIR AUTHORITY SHALL BE FINAL."  IT SAID SIMPLY
AND UNQUALIFIEDLY "THE DECISIONS OF SUCH LOCAL BOARDS SHALL BE FINAL
..."  TO BE SURE LOCAL BOARDS ARE GIVEN POWER TO ACT "WITHIN THEIR
RESPECTIVE JURISDICTIONS."  BUT ALL AGENCIES UPON WHICH CONGRESS
CONFERS AUTHORITY HAVE SUCH AUTHORITY IMPLIEDLY ONLY "WITHIN THEIR
RESPECTIVE JURISDICTIONS."  IF THAT INHERENT LIMITATION OPENED THE DOOR
TO REVIEW OF THEIR ACTION IN EVERY ENFORCEMENT PROCEEDING DESPITE
PROVISIONS FOR FINALITY, A PROVISION OF FINALITY IS MEANINGLESS. 

THIS ARGUMENT REVIVES, IF INDEED IT DOES NOT MULTIPLY, ALL THE
CASUISTIC DIFFICULTIES SPAWNED BY THE DOCTRINE OF "JURISDICTIONAL
FACT."  IN VIEW OF THE CRITICISM WHICH THAT DOCTRINE, AS SPONSORED BY
CROWELL V. BENSON, 285 U.S. 22, BROUGHT FORTH AND OF THE ATTRITIONS OF
THAT CASE THROUGH LATER DECISIONS, ONE HAD SUPPOSED THAT THE DOCTRINE
HAD EARNED A DESERVED REPOSE.  IN WITHHOLDING JUDICIAL REVIEW IN THE
SITUATIONS WITH WHICH WE ARE CONCERNED, CONGRESS WAS ACTING UPON THE
CONVICTION THAT IT WAS DEALING WITH MATTERS WHICH WERE MORE FITTINGLY
LODGED IN THE EXCLUSIVE DISCRETION OF THE SELECTIVE SERVICE SYSTEM. 
EVEN IN CASES OF FAR LESS EXIGENCY, CONGRESS HAS CHOSEN TO ACT ON SUCH
A VIEW.  SEE, E.G., GRAY V. POWELL, 314 U.S. 402; FINAL REPORT OF THE
ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE (1941) 86. 
BUT THE SHORT ANSWER TO ANY CLAIM OF REVIEWABILITY DRAWN FROM THE
CONFINEMENT OF THE LOCAL BOARDS TO ACTION "WITHIN THEIR RESPECTIVE
JURISDICTIONS" IS THAT CONGRESS WAS CONCERNED WITH GEOGRAPHY AND NOT
WITH LAW.  THROUGHOUT THIS ACT, THE TERM "JURISDICTION" HAS THIS
GEOGRAPHIC CONNOTATION.  IS IT REASONABLE TO BELIEVE THAT CONGRESS,
BENT ON CREATING A VAST ARMED FORCE AS QUICKLY AS POSSIBLE, WOULD IN
EFFECT AUTHORIZE EVERY ORDER OF THE SELECTIVE SERVICE SYSTEM TO BE
RECONSIDERED UPON TRIALS FOR DISREGARD OF SUCH ORDERS?  THE ACT DOES
NOT DIFFERENTIATE BETWEEN THE POWER OF THE BOARD TO ALLOW EXEMPTIONS
AND ITS POWER TO GRANT DEFERMENTS.  THE BOARDS WERE INVESTED WITH FINAL
AUTHORITY TO DETERMINE SUCH MATTERS SUBJECT ONLY TO SUCH REVIEW AS THE
ACT AUTHORIZES.  WHEN CONGRESS TALKED ABOUT A BOARD ACTING WITHIN ITS
JURISDICTION IT MEANT THAT A REGISTRANT HAD SUBMITTED HIS PAPERS TO A
BOARD EITHER BECAUSE HE RESIDED WITHIN ITS AREA OR FOR SOME OTHER
RELEVANT REASON HAD REGISTERED WITH IT. 

FOR FIVE YEARS THE CIRCUIT COURTS OF APPEALS HAVE CONSTRUED SEC.
10(A)(2) TO MEAN THAT CONGRESS ESTABLISHED A SYSTEM FOR ORGANIZING A
VAST CITIZEN'S ARMY, THE SELECTION OF WHICH SHALL BE IN CIVILIAN BOARDS
WITH SUCH CONTROL OVER THEM AS THE PRESIDENT MAY FORMULATE.  DESIGNED
OBSTRUCTION OF THIS MEANS OF MEETING THE GREAT EMERGENCY WAS MADE AN
OFFENSE.  THAT THE CONGRESS HAD THE CONSTITUTIONAL POWER TO DO SO NEEDS
NO ARGUMENT AT THIS LATE DATE.  SEE SELECTIVE DRAFT LAW CASES, 245 U.S.
366; HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 93.  AND YET THE COURT
TODAY HOLDS THAT EIGHT CIRCUIT COURTS OF APPEALS WERE WRONG IN READING
THE LANGUAGE OF CONGRESS AS CONGRESS WROTE IT, EVEN THOUGH IN DOING SO
THESE COURTS WERE RESPECTFUL OF THE CONSIDERATIONS THAT MOVED CONGRESS
TO WRITE THE ACT AS IT DID IN ORDER TO RAISE THAT ARMY.  IF THIS BE SO,
NOT ONLY WERE THEY WRONG, BUT PROBABLY HUNDREDS OF CONVICTIONS FOR
DISOBEDIENCE OF LOCAL BOARD ORDERS BASED ON SUCH REGARD FOR WHAT
CONGRESS HAD WRITTEN, WERE INVALID. 

                                 II. 

SINCE CONGRESS HAS MADE FINAL THE DECISION OF A LOCAL BOARD ON A
CLAIM OF EXEMPTION, ITS DECISION AS TO EXEMPTION CANNOT BE REOPENED
UPON A TRIAL FOR DISOBEDIENCE OF THE BOARD'S ORDER.  BUT CONGRESS ALSO
AUTHORIZED AN APPEAL FROM THE LOCAL BOARD TO AN APPEAL BOARD AND
ULTIMATELY TO THE PRESIDENT.  CONGRESS HAS NOT GIVEN TO THE LOCAL BOARD
AUTHORITY TO DECIDE WHEN SUCH STATUTORY RIGHTS OF APPEAL MAY BE AVAILED
OF, NOR TO MAKE "FINAL" UNWARRANTED ACTION BY A BOARD WHEREBY SUCH
APPEAL IS FRUSTRATED.  CF. TUNG V. UNITED STATES, 142 F.2D 919(C.C.A.
1ST, 1944).  ACCORDINGLY, IF A REGISTRANT DOES NOT OBEY AN ORDER OF
INDUCTION BECAUSE THE BOARD HAS CUT OFF THE OPPORTUNITY WHICH THE
STATUTE GIVES HIM TO APPEAL TO HIGHER AUTHORITY, HIS OBLIGATION OF
OBEDIENCE HAS NOT YET MATURED.  THEREFORE HE HAS NOT FAILED TO
DISCHARGE HIS OBLIGATION UNDER THE ACT.  THE DUTY TO OBEY IS NOT MERELY
A DUTY TO OBEY AN ORDER OF THE DRAFT BOARD, BUT TO OBEY SUCH AN ORDER
AFTER IT IS NO LONGER SUBJECT TO REVIEW WITHIN THE SELECTIVE SERVICE
SYSTEM.  "THE DECISIONS OF SUCH LOCAL BOARDS SHALL BE FINAL EXCEPT
WHERE AN APPEAL IS AUTHORIZED IN ACCORDANCE WITH SUCH RULES AND
REGULATIONS AS THE PRESIDENT MAY PRESCRIBE."  ESTEP MADE THE CLAIM THAT
HE WAS EFFECTIVELY DENIED THE RIGHT TO APPEAL IN ADDITION TO HIS
INADMISSIBLE DEFENSE THAT THE LOCAL BOARD CLASSIFIED HIM IMPROPERLY. 
HE OFFERED TO PROVE THAT FOR ALL PRACTICAL PURPOSES THE LOCAL BOARD
FRUSTRATED HIS RIGHT TO HAVE HIS CASE GO TO THE APPEAL BOARD, IN
VIOLATION OF THE BOARD'S DUTY UNDER THE ACT AND THE REGULATIONS.  ESTEP
SHOULD HAVE BEEN ALLOWED TO MAKE PROOF OF THIS CLAIM BY APPROPRIATE
MOTION TO BE DISPOSED OF BY THE COURT.  AS IN SITUATIONS OF COMPARABLE
LEGAL SIGNIFICANCE, A TRIAL COURT MAY, OF COURSE, LEAVE CONTROVERTED
ISSUES OF FACT TO THE JURY. 

ANOTHER ISSUE IS PRESENTED BY THE PETITIONER IN NO. 66.  THE
INDICTMENT ALLEGES A FAILURE TO REPORT FOR INDUCTION.  WHILE THE
PETITIONER DID NOT REPORT AT THE LOCAL BOARD AS HE WAS ORDERED TO DO,
HE WAS FORCIBLY TAKEN TO THE INDUCTION CENTER AND WENT THROUGH THE PRE
INDUCTION PHYSICAL EXAMINATION BUT SUBSEQUENTLY REFUSED TO SUBMIT TO
INDUCTION.  AN ORDER TO REPORT FOR INDUCTION, AS WE SAID IN BILLINGS V.
TRUESDELL, "INCLUDES A COMMAND TO SUBMIT TO INDUCTION."  321 U.S., AT
557; UNITED STATES V. COLLURA, 139 F.2D 345(C.C.A.2D, 1943).  THERE IS,
HOWEVER, BASIS FOR THE PETITIONER'S CONTENTION THAT THE CASE WAS TRIED
AND SUBMITTED TO THE JURY ON THE THEORY THAT HE FAILED TO SHOW UP AT
HIS LOCAL BOARD.  HE SUBSTANTIALLY COMPLIED WITH THAT REQUEST BY BEING
AT THE INDUCTION CENTER FOR EXAMINATION.  THE TRIAL COURT'S CHARGE IS
AT BEST AMBIGUOUS.  THE COURT MORE THAN ONCE APPARENTLY CHARGED NOT
THAT HE DID NOT SUBMIT TO INDUCTION, BUT THAT HE FAILED TO APPEAR
VOLUNTARILY AT THE INDUCTION POINTS.  "A CONVICTION OUGHT NOT TO REST
ON AN EQUIVOCAL DIRECTION TO THE JURY ON A BASIC ISSUE."  BOLLENBACH V.
UNITED STATES, 326 U.S. 607.  ON THIS GROUND THE CONVICTION IS PROPERLY
REVERSED. 

FN1  THIS IS A LIST OF THE JUDGES: 

FIRST CIRCUIT:  MAHONEY, WOODBURY, PETERS. 

SECOND CIRCUIT:  LEARNED HAND, SWAN, AUGUSTUS N. HAND, CHASE, CLARK,
FRANK, SIMONS, HUTCHESON (THE LAST TWO SITTING AS DESIGNATED JUDGES). 

THIRD CIRCUIT:  JONES, MARIS, GOODRICH, MCLAUGHLIN, PARKER (THE LAST
SITTING AS A DESIGNATED JUDGE). 

FOURTH CIRCUIT:  PARKER, SOPER, DOBIE, NORTHCOTT. 

FIFTH CIRCUIT:  SIBLEY, HUTCHESON, HOLMES, MCCORD, WALLER, LEE,
STRUM. 

SIXTH CIRCUIT:  HICKS, SIMONS, HAMILTON, MARTIN. 

SEVENTH CIRCUIT:  EVANS, SPARKS, MAJOR, KERNER, MINTON, LINDLEY,
BRIGGLE. 

EIGHTH CIRCUIT:  SANBORN, WOODROUGH, THOMAS, JOHNSEN, RIDDICK. 

SINCE FALBO, THE ONLY CONTRARY VIEWS HAVE BEEN EXPRESSED BY JUDGES
BIGGS AND LEAHY IN THE COURT BELOW IN NO. 292. 

FN2  SEE, ALSO, UNITED STATES V. KAUTEN, 133 F.2D 703(C.C.A.2D,
1943); UNITED STATES V. NELSON, 143 F.2D 584(C.C.A.2D, 1944); UNITED
STATES V. GRIEME, 128 F.2D 811(C.C.A. 3D, 1942); UNITED STATES V.
BOWLES, 131 F.2D 818(C.C.A. 3D, 1942), AFF'D ON OTHER GROUNDS, 319 U.S.
33; GOODRICH V. UNITED STATES, 146 F.2D 265(C.C.A.5TH, 1944); UNITED
STATES V. MROZ, 136 F.2D 221(C.C.A.7TH, 1943); UNITED STATES V.
MESSERSMITH, 138 F.2D 599(C.C.A.7TH, 1943); UNITED STATES V. DAILY, 139
F.2D 7(C.C.A.7TH, 1943); UNITED STATES V. SAULER, 139 F.2D
173(C.C.A.7TH, 1944); UNITED STATES V. VAN DEN BERG, 139 F.2D
654(C.C.A.7TH, 1944); UNITED STATES V. FRATRICK, 140 F.2D 5(C.C.A.7TH,
1944); UNITED STATES V. BAXTER, 141 F.2D 359(C.C.A.7TH, 1944); UNITED
STATES V. DOMRES, 142 F.2D 477(C.C.A.7TH, 1944); BRONEMANN V. UNITED
STATES, 138 F.2D 333(C.C.A.8TH, 1943); VAN BIBBER V. UNITED STATES, 151
F.2D 444(C.C.A.8TH, 1945). 

MR. JUSTICE BURTON, WITH WHOM MR. CHIEF JUSTICE STONE CONCURS,
DISSENTING. 

THE CHIEF JUSTICE AND I THINK THAT THE JUDGMENT OF CONVICTION IN
THESE CASES SHOULD BE AFFIRMED FOR REASONS STATED IN PART I OF MR.
JUSTICE FRANKFURTER'S OPINION. 

WE THINK THAT UNDER SEC. 10(A)(2) OF THE SELECTIVE SERVICE ACT,
RIGHTLY CONSTRUED, THE REGISTRANT IS REQUIRED, ON PAIN OF CRIMINAL
PENALTIES, TO OBEY THE LOCAL BOARD'S ORDER TO REPORT FOR INDUCTION INTO
THE ARMED FORCES, EVEN THOUGH THE BOARD'S ORDER OR THE ACTION OF THE
APPEAL BOARD ON WHICH IT IS BASED, IS ERRONEOUS.  "IN ORDER TO OBTAIN A
JUDICIAL DETERMINATION OF SUCH ISSUES SUCH REGISTRANTS MUST FIRST
SUBMIT TO INDUCTION AND RAISE THE ISSUE BY HABEAS CORPUS."  H. REP. NO.
36, 79TH CONG., 1ST SESS. (1945) 5.  IT FOLLOWS THAT IF THE REGISTRANT
IS INDICTED FOR DISOBEDIENCE OF THE BOARD'S ORDER HE CANNOT DEFEND ON
THE GROUND THAT THE DRAFT PROCEDURE HAS NOT BEEN COMPLIED WITH OR, IF
CONVICTED, SECURE HIS RELEASE ON THAT GROUND BY RESORT TO HABEAS
CORPUS.  THE RESULT IS THAT SUCH RELIEF IS OPEN TO HIM ONLY IF HE OBEYS
THE ORDER AND SUBMITS TO INDUCTION, WHEN HE IS FREE TO SEEK HABEAS
CORPUS. 

WE DO NOT FIND IN THE RECORD OF EITHER CASE SUFFICIENT BASIS FOR
REVERSAL THEREOF ON THE GROUNDS SUGGESTED IN PART II OF MR. JUSTICE
FRANKFURTER'S OPINION. 
..END :










HANNEGAN V. ESQUIRE, INC., 327 U.S. 146 


NO. 399.  ARGUED JANUARY 11, 1946.  - DECIDED FEBRUARY 4, 1946.  - 151
F.2D 49, AFFIRMED. 


1.  SECTION 14 OF THE CLASSIFICATION ACT OF 1879 PROVIDES THAT, IN
ORDER TO BE ADMITTED AS SECOND-CLASS MAIL, A PUBLICATION "MUST BE
ORIGINATED AND PUBLISHED FOR THE DISSEMINATION OF INFORMATION OF A
PUBLIC CHARACTER, OR DEVOTED TO LITERATURE, THE SCIENCES, ARTS  ..." 
HELD THAT, UNDER THIS PROVISION, THE POSTMASTER GENERAL IS WITHOUT
POWER TO PRESCRIBE STANDARDS FOR THE LITERATURE OR THE ART WHICH A
MAILABLE PERIODICAL (NOT OBSCENE) DISSEMINATES, OR TO DETERMINE WHETHER
THE CONTENTS OF THE PERIODICAL MEET SOME STANDARD OF THE PUBLIC GOOD OR
WELFARE.  PP. 148, 158. 

2.  A PURPOSE ON THE PART OF CONGRESS TO GRANT THE POSTMASTER GENERAL
A POWER OF CENSORSHIP - A POWER SO ABHORRENT TO OUR TRADITIONS - IS NOT
LIGHTLY TO BE INFERRED.  P. 151. 

3.  WHEN READ IN THE CONTEXT OF THE POSTAL LAWS OF WHICH IT IS AN
INTEGRAL PART, THE PROVISIONS OF SEC. 14 MUST BE TAKEN AS ESTABLISHING
STANDARDS WHICH RELATE TO THE FORMAT OF THE PUBLICATION AND TO THE
NATURE OF ITS CONTENTS, BUT NOT TO THEIR QUALITY, WORTH, OR VALUE.  P.
152. 

IN THAT VIEW, "LITERATURE" AND THE "ARTS" MEAN NO MORE THAN
PRODUCTIONS WHICH CONVEY IDEAS BY WORDS, PICTURES, OR DRAWINGS.  P.
153. 

HANNEGAN, POSTMASTER GENERAL, V. ESQUIRE, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

IN A SUIT BY THE RESPONDENT TO ENJOIN THE POSTMASTER GENERAL FROM
CARRYING INTO EFFECT AN ORDER REVOKING RESPONDENT'S SECOND-CLASS-MAIL
PERMIT, THE DISTRICT COURT DENIED THE INJUNCTION AND DISMISSED THE
COMPLAINT.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
REVERSED.  151 F.2D 49.  THIS COURT GRANTED CERTIORARI.  326 U.S. 708. 
AFFIRMED, P. 159. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

CONGRESS HAS MADE OBSCENE MATERIAL NONMAILABLE (35 STAT. 1129, 18
U.S.C. SEC. 334), AND HAS APPLIED CRIMINAL SANCTIONS FOR THE
ENFORCEMENT OF THAT POLICY.  IT HAS DIVIDED MAILABLE MATTER INTO FOUR
CLASSES, PERIODICAL PUBLICATIONS CONSTITUTING THE SECOND-CLASS.  FN1
SEC. 7 OF THE CLASSIFICATION ACT OF 1879, 20 STAT. 358, 43 STAT. 1067,
39 U.S.C. SEC. 221.  AND IT HAS SPECIFIED FOUR CONDITIONS UPON WHICH A
PUBLICATION SHALL BE ADMITTED TO THE SECOND-CLASS.  SEC. 14 OF THE
CLASSIFICATION ACT OF 1879, 20 STAT. 359, 48 STAT. 928, 39 U.S.C. SEC.
226.  THE FOURTH CONDITION, WHICH IS THE ONLY ONE RELEVANT HERE,  FN2
PROVIDES: 

"EXCEPT AS OTHERWISE PROVIDED BY LAW, THE CONDITIONS UPON WHICH A
PUBLICATION SHALL BE ADMITTED TO THE SECOND CLASS ARE AS FOLLOWS  ...
FOURTH.  IT MUST BE ORIGINATED AND PUBLISHED FOR THE DISSEMINATION OF
INFORMATION OF A PUBLIC CHARACTER, OR DEVOTED TO LITERATURE, THE
SCIENCES, ARTS, OR SOME SPECIAL INDUSTRY, AND HAVING A LEGITIMATE LIST
OF SUBSCRIBERS.  NOTHING HEREIN CONTAINED SHALL BE SO CONSTRUED AS TO
ADMIT TO THE SECOND-CLASS RATE REGULAR PUBLICATIONS DESIGNED PRIMARILY
FOR ADVERTISING PURPOSES, OR FOR FREE CIRCULATION, OR FOR CIRCULATION
AT NOMINAL RATES." 

RESPONDENT IS THE PUBLISHER OF ESQUIRE MAGAZINE, A MONTHLY PERIODICAL
WHICH WAS GRANTED A SECOND-CLASS PERMIT IN 1933.  IN 1943, PURSUANT TO
THE ACT OF MARCH 3, 1901, 31 STAT. 1107, 39 U.S.C. SEC. 232, A CITATION
WAS ISSUED TO RESPONDENT BY THE THEN POSTMASTER GENERAL (FOR WHOM THE
PRESENT POSTMASTER GENERAL HAS NOW BEEN SUBSTITUTED AS PETITIONER) TO
SHOW CAUSE WHY THAT PERMIT SHOULD NOT BE SUSPENDED OR REVOKED.  FN3  A
HEARING WAS HELD BEFORE A BOARD DESIGNATED BY THE THEN POSTMASTER
GENERAL.  FN4  THE BOARD RECOMMENDED THAT THE PERMIT NOT BE REVOKED. 
PETITIONER'S PREDECESSOR TOOK A DIFFERENT VIEW.  HE DID NOT FIND THAT
ESQUIRE MAGAZINE CONTAINED OBSCENE MATERIAL AND THEREFORE WAS
NONMAILABLE.  HE REVOKED ITS SECOND-CLASS PERMIT BECAUSE HE FOUND THAT
IT DID NOT COMPLY WITH THE FOURTH CONDITION.  THE GIST OF HIS HOLDING
IS CONTAINED IN THE FOLLOWING EXCERPT FROM HIS OPINION: 

"THE PLAIN LANGUAGE OF THIS STATUTE DOES NOT ASSUME THAT A
PUBLICATION MUST IN FACT BE 'OBSCENE' WITHIN THE INTENDMENT OF THE
POSTAL OBSCENITY STATUTES BEFORE IT CAN BE FOUND NOT TO BE 'ORIGINATED
AND PUBLISHED FOR THE DISSEMINATION OF INFORMATION OF A PUBLIC
CHARACTER, OR DEVOTED TO LITERATURE, THE SCIENCES, ARTS, OR SOME
SPECIAL INDUSTRY.' 

"WRITINGS AND PICTURES MAY BE INDECENT, VULGAR, AND RISQUE AND STILL
NOT BE OBSCENE IN A TECHNICAL SENSE.  SUCH WRITINGS AND PICTURES MAY BE
IN THAT OBSCURE AND TREACHEROUS BORDERLAND ZONE WHERE THE AVERAGE
PERSON HESITATES TO FIND THEM TECHNICALLY OBSCENE, BUT STILL MAY SEE
AMPLE PROOF THAT THEY ARE MORALLY IMPROPER AND NOT FOR THE PUBLIC
WELFARE AND THE PUBLIC GOOD.  WHEN SUCH WRITINGS OR PICTURES OCCUR IN
ISOLATED INSTANCES THEIR DANGEROUS TENDENCIES AND MALIGNANT QUALITIES
MAY BE CONSIDERED OF LESSER IMPORTANCE. 

"WHEN, HOWEVER, THEY BECOME A DOMINANT AND SYSTEMATIC FEATURE THEY
MOST CERTAINLY CANNOT BE SAID TO BE FOR THE PUBLIC GOOD, AND A
PUBLICATION WHICH USES THEM IN THAT MANNER IS NOT MAKING THE 'SPECIAL
CONTRIBUTION TO THE PUBLIC WELFARE' WHICH CONGRESS INTENDED BY THE
FOURTH CONDITION. 

"A PUBLICATION TO ENJOY THESE UNIQUE MAIL PRIVILEGES AND SPECIAL
PREFERENCES IS BOUND TO DO MORE THAN REFRAIN FROM DISSEMINATING
MATERIAL WHICH IS OBSCENE OR BORDERING ON THE OBSCENE.  IT IS UNDER A
POSITIVE DUTY TO CONTRIBUTE TO THE PUBLIC GOOD AND THE PUBLIC
WELFARE." 

RESPONDENT THEREUPON SUED IN THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA TO ENJOIN THE REVOCATION ORDER.  THE PARTIES STIPULATED AT A
PRE-TRIAL CONFERENCE THAT THE SUIT WOULD NOT BE DEFENDED ON THE GROUND
THAT ESQUIRE MAGAZINE WAS OBSCENE OR WAS FOR ANY OTHER REASON
NONMAILABLE N5.  THE DISTRICT COURT DENIED THE INJUNCTION AND DISMISSED
THE COMPLAINT.  55 F.SUPP.  1015.  THE COURT OF APPEALS REVERSED.  151
F.2D 49.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH
WE GRANTED BECAUSE OF THE IMPORTANCE OF THE PROBLEM IN THE
ADMINISTRATION OF THE POSTAL LAWS. 

THE ISSUES OF ESQUIRE MAGAZINE UNDER ATTACK ARE THOSE FOR JANUARY TO
NOVEMBER, INCLUSIVE, OF 1943.  THE MATERIAL COMPLAINED OF EMBRACES IN
BULK ONLY A SMALL PERCENTAGE OF THOSE ISSUES.  FN6 REGULAR FEATURES OF
THE MAGAZINE (CALLED "THE MAGAZINE FOR MEN") INCLUDE ARTICLES ON TOPICS
OF CURRENT INTEREST, SHORT STORIES, SPORTS ARTICLES OR STORIES, SHORT
ARTICLES BY MEN PROMINENT IN VARIOUS FIELDS OF ACTIVITIES, ARTICLES
ABOUT MEN PROMINENT IN THE NEWS, A BOOK REVIEW DEPARTMENT HEADED BY THE
LATE WILLIAM LYON PHELPS, A THEATRICAL DEPARTMENT HEADED BY GEORGE JEAN
NATHAN, A DEPARTMENT ON THE LIVELY ARTS BY GILBERT SELDES, A DEPARTMENT
DEVOTED TO MEN'S CLOTHING, AND PICTORIAL FEATURES, INCLUDING WAR ACTION
PAINTINGS, COLOR PHOTOGRAPHS OF DOGS AND WATER COLORS OR ETCHINGS OF
GAME BIRDS AND REPRODUCTIONS OF FAMOUS PAINTINGS, PRINTS AND DRAWINGS. 
THERE WAS VERY LITTLE IN THESE FEATURES WHICH WAS CHALLENGED.  BUT
PETITIONER'S PREDECESSOR FOUND THAT THE OBJECTIONABLE ITEMS, THOUGH A
SMALL PERCENTAGE OF THE TOTAL BULK, WERE REGULAR RECURRENT FEATURES
WHICH GAVE THE MAGAZINE ITS DOMINANT TONE OR CHARACTERISTIC.  THESE
INCLUDE JOKES, CARTOONS, PICTURES, ARTICLES, AND POEMS.  THEY WERE SAID
TO REFLECT THE SMOKING-ROOM TYPE OF HUMOR, FEATURING, IN THE MAIN,
SEX.  SOME WITNESSES FOUND THE CHALLENGED ITEMS HIGHLY OBJECTIONABLE,
CALLING THEM SALACIOUS AND INDECENT.  OTHERS THOUGHT THEY WERE ONLY
RACY AND RISQUE.  SOME CONDEMNED THEM AS BEING MERELY IN POOR TASTE. 
OTHER WITNESSES COULD FIND NO OBJECTION TO THEM. 

AN EXAMINATION OF THE ITEMS MAKES PLAIN, WE THINK, THAT THE
CONTROVERSY IS NOT WHETHER THE MAGAZINE PUBLISHES "INFORMATION OF A
PUBLIC CHARACTER" OR IS DEVOTED TO "LITERATURE" OR TO THE "ARTS."  IT
IS WHETHER THE CONTENTS ARE "GOOD" OR "BAD."  TO UPHOLD THE ORDER OF
REVOCATION WOULD, THEREFORE, GRANT THE POSTMASTER GENERAL A POWER OF
CENSORSHIP.  SUCH A POWER IS SO ABHORRENT TO OUR TRADITIONS THAT A
PURPOSE TO GRANT IT SHOULD NOT BE EASILY INFERRED. 

THE SECOND-CLASS PRIVILEGE IS A FORM OF SUBSIDY.  FN7  FROM THE
BEGINNING CONGRESS HAS ALLOWED SPECIAL RATES TO CERTAIN CLASSES OF
PUBLICATIONS.  THE ACT OF FEBRUARY 20, 1792, 1 STAT. 232, 238, GRANTED
NEWSPAPERS A MORE FAVORABLE RATE.  THESE WERE EXTENDED TO MAGAZINES AND
PAMPHLETS BY THE ACT OF MAY 8, 1794, 1 STAT. 354, 362.  PRIOR TO THE
CLASSIFICATION ACT OF 1879, PERIODICALS WERE PUT INTO THE SECOND-CLASS,
FN8  WHICH BY THE ACT OF MARCH 3, 1863, 12 STAT. 701, 705, INCLUDED
"ALL MAILABLE MATTER EXCLUSIVELY IN PRINT, AND REGULARLY ISSUED AT
STATED PERIODS, WITHOUT ADDITION BY WRITING, MARK, OR SIGN."  THAT ACT
PLAINLY ADOPTED A STRICTLY OBJECTIVE TEST AND LEFT NO DISCRETION TO THE
POSTAL AUTHORITIES TO WITHHOLD THE SECOND-CLASS PRIVILEGE FROM A
MAILABLE NEWSPAPER OR PERIODICAL BECAUSE IT FAILED TO MEET SOME
STANDARD OF WORTH OR VALUE OR PROPRIETY.  THERE IS NOTHING IN THE
LANGUAGE OR HISTORY OF THE CLASSIFICATION ACT OF 1879 WHICH SUGGESTS
THAT CONGRESS IN THAT LAW MADE ANY BASIC CHANGE IN ITS TREATMENT OF
SECOND-CLASS MAIL, LET ALONE SUCH AN ABRUPT AND RADICAL CHANGE AS WOULD
BE ENTAILED BY THE INAUGURATION OF EVEN A LIMITED FORM OF CENSORSHIP. 

THE POSTAL LAWS MAKE A CLEAR-CUT DIVISION BETWEEN MAILABLE AND
NONMAILABLE MATERIAL.  THE FOUR CLASSES OF MAILABLE MATTER ARE
GENERALLY DESCRIBED BY OBJECTIVE STANDARDS WHICH REFER IN PART TO THEIR
CONTENTS, BUT NOT TO THE QUALITY OF THEIR CONTENTS.  FN9  THE MORE
PARTICULAR DESCRIPTIONS OF THE FIRST,  FN10  THIRD,  FN11  AND FOURTH
FN12  CLASSES FOLLOW THE SAME PATTERN, AS DO THE FIRST THREE CONDITIONS
SPECIFIED FOR SECOND-CLASS MATTER.  FN13  IF, THEREFORE, THE FOURTH
CONDITION IS READ IN THE CONTEXT OF THE POSTAL LAWS OF WHICH IT IS AN
INTEGRAL PART, IT, TOO, MUST BE TAKEN TO SUPPLY STANDARDS WHICH RELATE
TO THE FORMAT OF THE PUBLICATION AND TO THE NATURE OF ITS CONTENTS, BUT
NOT TO THEIR QUALITY, WORTH, OR VALUE.  IN THAT VIEW, "LITERATURE" OR
THE "ARTS" MEAN NO MORE THAN PRODUCTIONS WHICH CONVEY IDEAS BY WORDS,
PICTURES, OR DRAWINGS. 

IF THE FOURTH CONDITION IS READ IN THAT WAY, IT IS PLAIN THAT
CONGRESS MADE NO RADICAL OR BASIC CHANGE IN THE TYPE OF REGULATION
WHICH IT ADOPTED FOR SECOND-CLASS MAIL IN 1879.  THE INAUGURATION OF
EVEN A LIMITED TYPE OF CENSORSHIP WOULD HAVE BEEN SUCH A STARTLING
CHANGE AS TO HAVE LEFT SOME TRACES IN THE LEGISLATIVE HISTORY.  BUT WE
FIND NONE.  CONGRESSMAN MONEY, A MEMBER OF THE POSTAL COMMITTEE WHO
DEFENDED THE BILL ON THE FLOOR OF THE HOUSE, STATED THAT IT WAS
"NOTHING BUT A SIMPLIFICATION OF THE POSTAL CODE.  THERE ARE NO NEW
POWERS GRANTED TO THE DEPARTMENT BY THIS BILL, NONE WHATEVER."  8 CONG.
REC. 2134.  THE BILL CONTAINED REGISTRATION PROVISIONS WHICH WERE
OPPOSED ON THE GROUND THAT THEY MIGHT BE THE INCEPTION OF A CENSORSHIP
OF THE PRESS.  ID., P. 2137.  THESE WERE DELETED.  ID., PP. 2137,
2138.  IT IS DIFFICULT TO IMAGINE THAT THE CONGRESS, HAVING DELETED
THEM FOR FEAR OF CENSORSHIP, GAVE THE POSTMASTER GENERAL BY THE FOURTH
CONDITION DISCRETION TO DENY PERIODICALS THE SECOND-CLASS RATE, IF IN
HIS VIEW THEY DID NOT CONTRIBUTE TO THE PUBLIC GOOD.  CONGRESSMAN MONEY
INDEED REFERRED TO "THE DAILY NEWSPAPERS, WITH THEIR LOAD OF GOSSIP AND
SCANDAL AND EVERY-DAY TOPICS THAT ARE FLOATING THROUGH THE PRESS" AS
BEING ENTITLED WITHOUT QUESTION TO THE SECOND-CLASS PRIVILEGE.  ID., P.
2135.  TO THE CHARGE THAT THE BILL IMPOSED A CENSORSHIP, HE POINTED OUT
THAT IT ONLY WITHHELD THE PRIVILEGED RATE FROM PUBLICATIONS "MADE UP
SIMPLY OF ADVERTISING CONCERNS NOT INTENDED FOR PUBLIC EDUCATION"; AND
ADDED: 

"WE KNOW THE REASON FOR WHICH PAPERS ARE ALLOWED TO GO AT A LOW RATE
OF POSTAGE, AMOUNTING ALMOST TO THE FRANKING PRIVILEGE, IS BECAUSE THEY
ARE THE MOST EFFICIENT EDUCATORS OF OUR PEOPLE.  IT IS BECAUSE THEY GO
INTO GENERAL CIRCULATION AND ARE INTENDED FOR THE DISSEMINATION OF
USEFUL KNOWLEDGE SUCH AS WILL PROMOTE THE PROSPERITY AND THE BEST
INTERESTS OF THE PEOPLE ALL OVER THE COUNTRY.  THEN ALL THIS VAST MASS
OF MATTER IS EXCLUDED FROM THAT LOW RATE OF POSTAGE.  I SAY, INSTEAD OF
BEING A CENSORSHIP UPON THE PRESS, IT IS FOR THE PROTECTION OF THE
LEGITIMATE JOURNALS OF THE COUNTRY."  ID., P. 2135. 

THE POLICY OF CONGRESS HAS BEEN CLEAR.  IT HAS BEEN TO ENCOURAGE THE
DISTRIBUTION OF PERIODICALS WHICH DISSEMINATED "INFORMATION OF A PUBLIC
CHARACTER" OR WHICH WERE DEVOTED TO "LITERATURE, THE SCIENCES, ARTS, OR
SOME SPECIAL INDUSTRY," BECAUSE IT WAS THOUGHT THAT THOSE PUBLICATIONS
AS A CLASS CONTRIBUTED TO THE PUBLIC GOOD.  FN14  THE STANDARDS
PRESCRIBED IN THE FOURTH CONDITION HAVE BEEN CRITICIZED, BUT NOT ON THE
GROUND THAT THEY PROVIDE FOR CENSORSHIP.  FN15  AS STATED BY THE POSTAL
COMMISSION OF 1911, H. DOC. 559, 62D CONG., 2D SESS., P. 142: 

"THE ORIGINAL OBJECT IN PLACING ON SECOND-CLASS MATTER A RATE FAR
BELOW THAT ON ANY OTHER CLASS OF MAIL WAS TO ENCOURAGE THE
DISSEMINATION OF NEWS AND OF CURRENT LITERATURE OF EDUCATIONAL VALUE. 
THIS OBJECT HAS BEEN ONLY IN PART ATTAINED.  THE LOW RATE HAS HELPED TO
STIMULATE AN ENORMOUS MASS OF PERIODICALS, MANY OF WHICH ARE OF LITTLE
UTILITY FOR THE CAUSE OF POPULAR EDUCATION.  OTHERS ARE OF EXCELLENT
QUALITY, BUT THE EXPERIENCE OF THE POST OFFICE HAS SHOWN THE
IMPOSSIBILITY OF MAKING A SATISFACTORY TEST BASED UPON LITERARY OR
EDUCATIONAL VALUES.  TO ATTEMPT TO DO SO WOULD BE TO SET UP A
CENSORSHIP OF THE PRESS.  OF NECESSITY THE WORDS OF THE STATUTE -
'DEVOTED TO LITERATURE, THE SCIENCES, ARTS, OR SOME SPECIAL INDUSTRY' -
MUST HAVE A BROAD INTERPRETATION." 

WE MAY ASSUME THAT CONGRESS HAS A BROAD POWER OF CLASSIFICATION AND
NEED NOT OPEN SECOND-CLASS MAIL TO PUBLICATIONS OF ALL TYPES.  THE
CATEGORIES OF PUBLICATIONS ENTITLED TO THAT CLASSIFICATION HAVE INDEED
VARIED THROUGH THE YEARS.  FN16  AND THE COURT HELD IN EX PARTE
JACKSON, 96 U.S. 727, THAT CONGRESS COULD CONSTITUTIONALLY MAKE IT A
CRIME TO SEND FRAUDULENT OR OBSCENE MATERIAL THROUGH THE MAILS.  BUT
GRAVE CONSTITUTIONAL QUESTIONS ARE IMMEDIATELY RAISED ONCE IT IS SAID
THAT THE USE OF THE MAILS IS A PRIVILEGE WHICH MAY BE EXTENDED OR
WITHHELD ON ANY GROUNDS WHATSOEVER.  SEE THE DISSENTS OF MR. JUSTICE
BRANDEIS AND MR. JUSTICE HOLMES IN MILWAUKEE PUBLISHING CO. V.
BURLESON, 255 U.S. 407, 421-423, 430-432, 437-438.  UNDER THAT VIEW THE
SECOND-CLASS RATE COULD BE GRANTED ON CONDITION THAT CERTAIN ECONOMIC
OR POLITICAL IDEAS NOT BE DISSEMINATED.  THE PROVISIONS OF THE FOURTH
CONDITION WOULD HAVE TO BE FAR MORE EXPLICIT FOR US TO ASSUME THAT
CONGRESS MADE SUCH A RADICAL DEPARTURE FROM OUR TRADITIONS  FN17  AND
UNDERTOOK TO CLOTHE THE POSTMASTER GENERAL WITH THE POWER TO SUPERVISE
THE TASTES OF THE READING PUBLIC OF THE COUNTRY.  FN18    IT IS PLAIN,
AS WE HAVE SAID, THAT THE FAVORABLE SECOND-CLASS RATES WERE GRANTED
PERIODICALS MEETING THE REQUIREMENTS OF THE FOURTH CONDITION, SO THAT
THE PUBLIC GOOD MIGHT BE SERVED THROUGH A DISSEMINATION OF THE CLASS OF
PERIODICALS DESCRIBED.  BUT THAT IS A FAR CRY FROM ASSUMING THAT
CONGRESS HAD ANY IDEA THAT EACH APPLICANT FOR THE SECOND-CLASS RATE
MUST CONVINCE THE POSTMASTER GENERAL THAT HIS PUBLICATION POSITIVELY
CONTRIBUTES TO THE PUBLIC GOOD OR PUBLIC WELFARE.  UNDER OUR SYSTEM OF
GOVERNMENT THERE IS AN ACCOMMODATION FOR THE WIDEST VARIETIES OF TASTES
AND IDEAS.  FN19  WHAT IS GOOD LITERATURE, WHAT HAS EDUCATIONAL VALUE,
WHAT IS REFINED PUBLIC INFORMATION, WHAT IS GOOD ART, VARIES WITH
INDIVIDUALS AS IT DOES FROM ONE GENERATION TO ANOTHER.  THERE DOUBTLESS
WOULD BE A CONTRARIETY OF VIEWS  FN20  CONCERNING CERVANTES' DON
QUIXOTE, SHAKESPEARE'S VENUS AND ADONIS, OR ZOLA'S NANA.  BUT A
REQUIREMENT THAT LITERATURE OR ART CONFORM TO SOME NORM PRESCRIBED BY
AN OFFICIAL SMACKS OF AN IDEOLOGY FOREIGN TO OUR SYSTEM.  THE BASIC
VALUES IMPLICIT IN THE REQUIREMENTS OF THE FOURTH CONDITION CAN BE
SERVED ONLY BY UNCENSORED DISTRIBUTION OF LITERATURE.  FROM THE
MULTITUDE OF COMPETING OFFERINGS THE PUBLIC WILL PICK AND CHOOSE.  WHAT
SEEMS TO ONE TO BE TRASH MAY HAVE FOR OTHERS FLEETING OR EVEN ENDURING
VALUES.  BUT TO WITHDRAW THE SECOND-CLASS RATE FROM THIS PUBLICATION
TODAY BECAUSE ITS CONTENTS SEEMED TO ONE OFFICIAL NOT GOOD FOR THE
PUBLIC WOULD SANCTION WITHDRAWAL OF THE SECOND-CLASS RATE TOMORROW FROM
ANOTHER PERIODICAL WHOSE SOCIAL OR ECONOMIC VIEWS SEEMED HARMFUL TO
ANOTHER OFFICIAL.  THE VALIDITY OF THE OBSCENITY LAWS IS RECOGNITION
THAT THE MAILS MAY NOT BE USED TO SATISFY ALL TASTES, NO MATTER HOW
PERVERTED.  BUT CONGRESS HAS LEFT THE POSTMASTER GENERAL WITH NO POWER
TO PRESCRIBE STANDARDS FOR THE LITERATURE OR THE ART WHICH A MAILABLE
PERIODICAL DISSEMINATES. 

THIS IS NOT TO SAY THAT THERE IS NOTHING LEFT TO THE POSTMASTER
GENERAL UNDER THE FOURTH CONDITION.  IT IS HIS DUTY TO "EXECUTE ALL
LAWS RELATIVE TO THE POSTAL SERVICE."  REV. STAT. SEC. 396, 5 U.S.C.
SEC. 369.  FOR EXAMPLE, QUESTIONS WILL ARISE AS THEY DID IN HOUGHTON V.
PAYNE, 194 U.S. 88; BATES & GUILD CO. V. PAYNE, 194 U.S. 106, AND SMITH
V. HITCHCOCK, 226 U.S. 53, WHETHER THE PUBLICATION WHICH SEEKS THE
FAVORABLE SECOND-CLASS RATE IS A PERIODICAL AS DEFINED IN THE FOURTH
CONDITION OR A BOOK OR OTHER TYPE OF PUBLICATION.  AND IT MAY APPEAR
THAT THE INFORMATION CONTAINED IN A PERIODICAL MAY NOT BE OF A "PUBLIC
CHARACTER."  BUT THE POWER TO DETERMINE WHETHER A PERIODICAL (WHICH IS
MAILABLE) CONTAINS INFORMATION OF A PUBLIC CHARACTER, LITERATURE OR ART
DOES NOT INCLUDE THE FURTHER POWER TO DETERMINE WHETHER THE CONTENTS
MEET SOME STANDARD OF THE PUBLIC GOOD OR WELFARE.  AFFIRMED. 

FN1  "THAT MAILABLE MATTER OF THE SECOND CLASS SHALL EMBRACE ALL
NEWSPAPERS AND OTHER PERIODICAL PUBLICATIONS WHICH ARE ISSUED AT STATED
INTERVALS, AND AS FREQUENTLY AS FOUR TIMES A YEAR AND ARE WITHIN THE
CONDITIONS NAMED IN SECTIONS TWELVE AND FOURTEEN."  SEC. 10 OF THE
CLASSIFICATION ACT OF 1879, 20 STAT. 359, 39 U.S.C. SEC. 224.  FOR
OTHER PERIODICAL PUBLICATIONS WHICH ARE INCLUDED IN SECOND-CLASS
MATTER, SEE 37 STAT. 550, 39 U.S.C. SEC. 229; 31 STAT. 660, 39 U.S.C.
SEC. 230. 

FN2  THE FIRST THREE CONDITIONS ARE: 

"FIRST.  IT MUST REGULARLY BE ISSUED AT STATED INTERVALS, AS
FREQUENTLY AS FOUR TIMES A YEAR, AND BEAR A DATE OF ISSUE, AND BE
NUMBERED CONSECUTIVELY.  SECOND.  IT MUST BE ISSUED FROM A KNOWN OFFICE
OF PUBLICATION.  THIRD.  IT MUST BE FORMED OF PRINTED PAPER SHEETS,
WITHOUT BOARD, CLOTH, LEATHER, OR OTHER SUBSTANTIAL BINDING, SUCH AS
DISTINGUISH PRINTED BOOKS FOR PRESERVATION FROM PERIODICAL
PUBLICATIONS:  PROVIDED, THAT PUBLICATIONS PRODUCED BY THE STENCIL,
MIMEOGRAPH, OR HECTOGRAPH PROCESS OR IN IMITATION OF TYPEWRITING SHALL
NOT BE REGARDED AS PRINTED WITHIN THE MEANING OF THIS CLAUSE." 

FN3  SEC. 1 OF THAT ACT PROVIDES: 

"WHEN ANY PUBLICATION HAS BEEN ACCORDED SECOND-CLASS MAIL PRIVILEGES,
THE SAME SHALL NOT BE SUSPENDED OR ANNULLED UNTIL A HEARING SHALL HAVE
BEEN GRANTED TO THE PARTIES INTERESTED." 

FN4  SEE 7 FED. REG. 3001. 

FN5  IT WAS NOT CONTENDED THAT ESQUIRE MAGAZINE DOES NOT COMPLY WITH
THE FIRST THREE CONDITIONS OF 39 U.S.C. SEC. 226, SET FORTH IN NOTE 2,
SUPRA. 

FN6  ITEMS TAKING UP A PART OR ALL OF 86 PAGES OUT OF A TOTAL OF
1,972 PAGES. 

FN7  IT WAS FOUND TO BE WORTH $500,000 A YEAR TO ESQUIRE MAGAZINE. 
"A NEWSPAPER EDITOR FEARS BEING PUT OUT OF BUSINESS BY THE
ADMINISTRATIVE DENIAL OF THE SECOND-CLASS MAILING PRIVILEGE MUCH MORE
THAN THE PROSPECT OF PRISON SUBJECT TO A JURY TRIAL."  CHAFEE, FREEDOM
OF SPEECH (1920), P. 199. 

FN8  RATES ON PERIODICALS, DESIGNED PRIMARILY FOR ADVERTISING
PURPOSES OR FOR FREE CIRCULATION, WERE INCREASED BY THE ACT OF JULY 12,
1876, 19 STAT. 78, 82. 

FN9  SEC. 7 OF THE CLASSIFICATION ACT OF 1879, AS AMENDED, 39 U.S.C.
SEC. 221, PROVIDES: 

"MAILABLE MATTER SHALL BE DIVIDED INTO FOUR CLASSES: 

"FIRST, WRITTEN MATTER; 

"SECOND, PERIODICAL PUBLICATIONS; 

"THIRD, MISCELLANEOUS PRINTED MATTER AND OTHER MAILABLE MATTER NOT IN
THE FIRST, SECOND, OR FOURTH CLASSES; 

"FOURTH, MERCHANDISE AND OTHER MAILABLE MATTER WEIGHING NOT LESS THAN
EIGHT OUNCES AND NOT IN ANY OTHER CLASS." 

FN10  FIRST CLASS.  "MAILABLE MATTER OF THE FIRST CLASS SHALL EMBRACE
LETTERS, POSTAL CARDS, AND ALL MATTERS WHOLLY OR PARTLY IN WRITING
..."  39 U.S.C. SEC. 222. 

FN11  THIRD CLASS.  "MAIL MATTER OF THE THIRD CLASS SHALL INCLUDE
BOOKS, CIRCULARS, AND OTHER MATTER WHOLLY IN PRINT (EXCEPT NEWSPAPERS
AND OTHER PERIODICALS ENTERED AS SECOND-CLASS MATTER), PROOF SHEETS,
CORRECTED PROOF SHEETS, AND MANUSCRIPT COPY ACCOMPANYING SAME,
MERCHANDISE (INCLUDING FARM AND FACTORY PRODUCTS) AND ALL OTHER
MAILABLE MATTER NOT INCLUDED IN THE FIRST OR SECOND CLASS, OR IN THE
FOURTH CLASS  ..."  39 U.S.C. SEC. 235. 

FN12  FOURTH CLASS.  "MAIL MATTER OF THE FOURTH CLASS SHALL WEIGH IN
EXCESS OF EIGHT OUNCES, AND SHALL INCLUDE BOOKS, CIRCULARS, AND OTHER
MATTER WHOLLY IN PRINT (EXCEPT NEWSPAPERS AND OTHER PERIODICALS ENTERED
AS SECOND-CLASS MATTER), PROOF SHEETS, CORRECTED PROOF SHEETS AND
MANUSCRIPT COPY ACCOMPANYING SAME, MERCHANDISE (INCLUDING FARM AND
FACTORY PRODUCTS), AND ALL OTHER MAILABLE MATTER NOT INCLUDED IN THE
FIRST OR SECOND CLASS, OR IN THE THIRD CLASS AS DEFINED IN SECTION 235
OF THIS TITLE, NOT EXCEEDING ELEVEN POUNDS IN WEIGHT, NOR GREATER IN
SIZE THAN SEVENTY-TWO INCHES IN LENGTH AND GIRTH COMBINED, NOR IN FORM
OR KIND LIKELY TO INJURE THE PERSON OF ANY POSTAL EMPLOYEE OR DAMAGE
THE MAIL EQUIPMENT OR OTHER MAIL MATTER AND NOT OF A CHARACTER
PERISHABLE WITHIN A PERIOD REASONABLY REQUIRED FOR TRANSPORTATION AND
DELIVERY."  39 U.S.C. SEC. 240. 

FN13 SEE NOTE 2, SUPRA. 

FN14  SEE LEWIS PUBLISHING CO. V. MORGAN, 229 U.S. 288, 301; ANNUAL
REPORT OF POSTMASTER GENERAL (1892), P. 71. 

FN15  SEE REPORT OF THE POSTAL COMMISSION OF 1906, H. DOC. 608, 59TH
CONG., 2D SESS., PP. XXXVI-XXXVII: 

"BUT IN WHAT WAY CAN IT BE SAID THAT A REQUIREMENT THAT A CERTAIN
PRINTED MATTER SHOULD BE 'DEVOTED TO LITERATURE' SERVES TO MARK IT OFF
FROM ANYTHING ELSE THAT CAN BE PUT INTO PRINT.  THERE IS PRACTICALLY NO
FORM OF EXPRESSION OF THE HUMAN MIND THAT CAN NOT BE BROUGHT WITHIN THE
SCOPE OF 'PUBLIC INFORMATION,' 'LITERATURE, THE SCIENCES, ART, OR SOME
SPECIAL INDUSTRY.'  IT WOULD HAVE BEEN JUST AS EFFECTIVE AND JUST AS
REASONABLE FOR THE STATUTE TO HAVE SAID, 'DEVOTED TO THE INTERESTS OF
HUMANITY,' OR 'DEVOTED TO THE DEVELOPMENT OF CIVILIZATION,' OR 'DEVOTED
TO HUMAN INTELLECTUAL ACTIVITY.' 

"THE PRIME DEFECT IN THE STATUTE IS, THEN, THAT IT DEFINES NOT BY
QUALITIES BUT BY PURPOSES, AND THE PURPOSE DESCRIBED IS SO BROAD AS TO
INCLUDE EVERYTHING AND EXCLUDE NOTHING. 

"WITH THE EXCEPTION OF A FEW INSTANCES WHERE THE PUBLICATION HAS BEEN
EXCLUDED BECAUSE THE INFORMATION WAS DEEMED NOT TO BE PUBLIC, NO
PERIODICAL HAS EVER BEEN CLASSIFIED BY THE APPLICATION OF TESTS OF THIS
KIND.  ANY ATTEMPT TO APPLY THEM GENERALLY WOULD SIMPLY END IN A PRESS
CENSORSHIP." 

FN16  AS WE HAVE SEEN, THE FOURTH CONDITION BARS ADMISSION TO SECOND
CLASS PRIVILEGES OF PUBLICATIONS "DESIGNED PRIMARILY FOR ADVERTISING
PURPOSES, OR FOR FREE CIRCULATION, OR FOR CIRCULATION AT NOMINAL
RATES."  PUBLICATIONS OF STATE DEPARTMENTS OF AGRICULTURE WERE NOT
GRANTED THE SPECIAL RATE UNTIL THE ACT OF JUNE 6, 1900, 31 STAT. 660,
39 U.S.C. SEC. 230.  AND THAT WAS NOT DONE FOR PUBLICATIONS OF
BENEVOLENT AND FRATERNAL SOCIETIES, OF INSTITUTIONS OF LEARNING, TRADE
UNIONS, STRICTLY PROFESSIONAL, LITERARY, HISTORICAL AND SCIENTIFIC
SOCIETIES UNTIL THE ACT OF AUGUST 24, 1912, 37 STAT. 550, 39 U.S.C.
SEC. 229. 

FN17  SEE DEUTSCH, FREEDOM OF THE PRESS AND OF THE MAILS, 36 MICH. L.
REV. 703, 715-727. 

FN18  WHEN CONGRESS HAS BEEN CONCERNED WITH THE CONTENT OF MATTER
PASSING THROUGH THE MAILS, IT HAS ENACTED CRIMINAL STATUTES MAKING, FOR
EXAMPLE, OBSCENE MATERIAL (35 STAT. 1129, 18 U.S.C. SEC. 334),
FRAUDULENT MATERIAL (35 STAT. 1130, 18 U.S.C. SEC. 338), AND SEDITIOUS
LITERATURE (40 STAT. 230, 18 U.S.C. SEC. 344) NONMAILABLE IN ANY
CLASS.  AND IT HAS GRANTED THE POSTMASTER GENERAL POWER TO REFUSE TO
DELIVER MAIL FOR ANY PERSON WHOM HE FINDS TO BE USING THE MAILS IN
CONDUCTING LOTTERIES OR FRAUDULENT SCHEMES.  REV. STAT. 3929, 39 U.S.C.
SEC. 259. 

BUT THAT POWER HAS BEEN ZEALOUSLY WATCHED AND STRICTLY CONFINED. 
SEE, FOR EXAMPLE, S. DOC. 118, 24TH CONG., 1ST SESS., REPORTING
ADVERSELY ON THE RECOMMENDATION OF PRESIDENT JACKSON THAT A LAW BE
PASSED PROHIBITING THE USE OF THE MAILS FOR THE TRANSMISSION OF
PUBLICATIONS INTENDED TO INSTIGATE THE SLAVES TO INSURRECTION.  IT WAS
SAID, P. 3: 

"BUT TO UNDERSTAND MORE FULLY THE EXTENT OF THE CONTROL WHICH THE
RIGHT OF PROHIBITING CIRCULATION THROUGH THE MAIL WOULD GIVE TO THE
GOVERNMENT OVER THE PRESS, IT MUST BE BORNE IN MIND, THAT THE POWER OF
CONGRESS OVER THE POST OFFICE AND THE MAIL IS AN EXCLUSIVE POWER.  IT
MUST ALSO BE REMEMBERED THAT CONGRESS, IN THE EXERCISE OF THIS POWER,
MAY DECLARE ANY ROAD OR NAVIGABLE WATER TO BE A POST ROAD; AND THAT, BY
THE ACT OF 1825, IT IS PROVIDED 'THAT NO STAGE, OR OTHER VEHICLE WHICH
REGULARLY PERFORMS TRIPS ON A POST ROAD, OR ON A ROAD PARALLEL TO IT,
SHALL CARRY LETTERS.'  THE SAME PROVISION EXTENDS TO PACKETS, BOATS, OR
OTHER VESSELS, ON NAVIGABLE WATERS.  LIKE PROVISION MAY BE EXTENDED TO
NEWSPAPERS AND PAMPHLETS; WHICH, IF IT BE ADMITTED THAT CONGRESS HAS
THE RIGHT TO DISCRIMINATE IN REFERENCE TO THEIR CHARACTER, WHAT PAPERS
SHALL OR WHAT SHALL NOT BE TRANSMITTED BY THE MAIL, WOULD SUBJECT THE
FREEDOM OF THE PRESS, ON ALL SUBJECTS, POLITICAL, MORAL, AND RELIGIOUS,
COMPLETELY TO ITS WILL AND PLEASURE.  IT WOULD, IN FACT, IN SOME
RESPECTS, MORE EFFECTUALLY CONTROL THE FREEDOM OF THE PRESS THAN ANY
SEDITION LAW, HOWEVER SEVERE ITS PENALTIES.  THE MANDATE OF THE
GOVERNMENT ALONE WOULD BE SUFFICIENT TO CLOSE THE DOOR AGAINST
CIRCULATION THROUGH THE MAIL, AND THUS, AT ITS SOLE WILL AND PLEASURE,
MIGHT INTERCEPT ALL COMMUNICATION BETWEEN THE PRESS AND THE PEOPLE
..." 

FN19  "THE FOOLISH JUDGMENTS OF LORD ELDON ABOUT ONE HUNDRED YEARS
AGO, PROSCRIBING THE WORKS OF BYRON AND SOUTHEY, AND THE FINDING BY THE
JURY UNDER A CHARGE BY LORD DENMAN THAT THE PUBLICATION OF SHELLEY'S
'QUEEN MAB' WAS AN INDICTABLE OFFENSE ARE A WARNING TO ALL WHO HAVE TO
DETERMINE THE LIMITS OF THE FIELD WITHIN WHICH AUTHORS MAY EXERCISE
THEMSELVES."  UNITED STATES V. ONE BOOK ENTITLED ULYSSES, 72 F.2D 705,
708. 

FN20  IN THE PRESENT CASE PETITIONER'S PREDECESSOR SAID IN HIS
REPORT: 

"WHEN THE POLLS OF PUBLIC OPINION SUBMITTED BY THE PUBLICATION ARE
EXAMINED, IT IS FOUND THAT THESE PICTURES WERE CHARACTERIZED AS OBSCENE
OR INDECENT BY 19 TO 22% OF THE PERSONS INTERVIEWED, AND THAT 20 TO 26%
OF THE PERSONS POLLED WOULD OBJECT TO HAVING THEM IN THEIR HOMES." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE CASE LIES WITHIN VERY NARROW CONFINES.  THE PUBLICATION UNDER
SCRUTINY IS A PERIODICAL.  IT IS THEREFORE ENTITLED TO THE SPECIAL
RATES ACCORDED BY CONGRESS PROVIDED IT IS PUBLISHED "FOR THE
DISSEMINATION OF INFORMATION OF A PUBLIC CHARACTER, OR DEVOTED TO
LITERATURE, THE SCIENCES, ARTS ..."  IF IT BE DEVOTED TO "LITERATURE"
IT BECOMES UNNECESSARY TO CONSIDER HOW SMALL AN INFUSION OF
"INFORMATION OF A PUBLIC CHARACTER" ENTITLES A PERIODICAL TO THE SECOND
CLASS MAIL RATES WHEN THE BULK OF ITS CONTENTS WOULD NOT OTHERWISE
SATISFY THE CONGRESSIONAL CONDITIONS. 

CONGRESS HAS NEITHER DEFINED ITS CONCEPTION OF "LITERATURE" NOR HAS
IT AUTHORIZED THE POSTMASTER GENERAL TO DO SO.  BUT IT HAS PLACED A
LIMITATION UPON WHAT IS TO BE DEEMED "LITERATURE" FOR A PRIVILEGE WHICH
THE COURT RIGHTLY CALLS A FORM OF SUBSIDY.  MATTERS THAT ARE DECLARED
NONMAILABLE (CRIMINAL CODE SEC. 211; 35 STAT. 1129, 36 STAT. 1339; 18
U.S.C. SEC. 334) ARE OF COURSE NOT "LITERATURE" WITHIN THE SCOPE OF THE
SECOND-CLASS PRIVILEGE.  BUT THE POSTMASTER GENERAL DOES NOT CONTEND
THAT THE PERIODICAL WITH WHICH WE ARE CONCERNED WAS NONMAILABLE.  HE
MERELY CONTENDS THAT IT WAS NOT DEVOTED TO THE KIND OF "LITERATURE" OR
"ART" WHICH MAY CLAIM THE SUBSIDY OF SECOND-CLASS MATTER.  BUT SINCE
CONGRESS HAS SEEN FIT TO ALLOW "LITERATURE" CONVEYED BY PERIODICALS TO
HAVE THE SECOND-CLASS PRIVILEGE WITHOUT MAKING ANY ALLOWABLE
CLASSIFICATION OF "LITERATURE," EXCEPT ONLY THAT NONMAILABLE MATTER AS
DEFINED BY SEC. 211 OF THE CRIMINAL CODE IS EXCLUDED, THE AREA OF
"LITERATURE, THE SCIENCES, ARTS" INCLUDES ALL COMPOSITION OF WORDS,
PICTORIAL REPRESENTATION, OR NOTATIONS THAT ARE INTELLIGIBLE TO ANY
PORTION OF THE POPULATION, NO MATTER WHETHER THEIR APPEAL IS EXTENSIVE
OR ESOTERIC.  SINCE THE POSTMASTER GENERAL DISAVOWS THE NONMAILABILITY
OF THE ISSUES OF THE PERIODICAL HE HAD BEFORE HIM AND SINCE CONGRESS
DID NOT QUALIFY "LITERATURE, THE SCIENCES, ARTS" BY ANY STANDARDS OF
TASTE OR EDIFICATION OR PUBLIC ELEVATION, THE POSTMASTER GENERAL
EXCEEDED HIS POWERS IN DENYING THIS PERIODICAL A SECOND-CLASS PERMIT. 
IT SEEMS TO ME IMPORTANT STRICTLY TO CONFINE DISCUSSION IN THIS CASE
BECAUSE ITS RADIATIONS TOUCH, ON THE ONE HAND, THE VERY BASIS OF A FREE
SOCIETY, THAT OF THE RIGHT OF EXPRESSION BEYOND THE CONVENTIONS OF THE
DAY, AND, ON THE OTHER HAND, THE FREEDOM OF SOCIETY FROM CONSTITUTIONAL
COMPULSION TO SUBSIDIZE ENTERPRISE, WHETHER IN THE WORLD OF MATTER OR
OF MIND.  WHILE ONE MAY ENTIRELY AGREE WITH MR. JUSTICE HOLMES, IN
LEACH V. CARLILE, 258 U.S. 138, 140, AS TO THE EXTENT TO WHICH THE
FIRST AMENDMENT FORBIDS CONTROL OF THE POST SO FAR AS SEALED LETTERS
ARE CONCERNED, ONE CONFRONTS AN ENTIRELY DIFFERENT SET OF QUESTIONS IN
CONSIDERING THE BASIS ON WHICH THE GOVERNMENT MAY GRANT OR WITHHOLD
SUBSIDIES THROUGH LOW POSTAL RATES, AND HUGE SUBSIDIES, IF ONE IS TO
JUDGE BY THE GLIMPSE AFFORDED BY THE PRESENT CASE.  IT WILL BE TIME
ENOUGH TO CONSIDER SUCH QUESTIONS WHEN THE COURT CANNOT ESCAPE DECISION
UPON THEM. 
..END :





MEYER V. FLEMING, 327 U.S. 161 


NO. 392.  ARGUED JANUARY 4, 1946.  - DECIDED FEBRUARY 4, 1946.  - 149
F.2D 529, REVERSED. 


1.  PETITIONER, OWNER OF A SUBSTANTIAL NUMBER OF SHARES OF STOCK IN A
CORPORATION, FILED ON BEHALF OF THE CORPORATION A CLAIM (IN THE NATURE
OF A DERIVATIVE SUIT) AGAINST A DEBTOR IN REORGANIZATION PROCEEDINGS
UNDER SEC. 77 OF THE BANKRUPTCY ACT.  SUBSEQUENTLY A PETITION OF THE
CORPORATION FOR REORGANIZATION UNDER SEC. 77 WAS FILED AND APPROVED,
AND A TRUSTEE WAS APPOINTED.  HELD: 

(A)  THE BANKRUPTCY COURT SHOULD ALLOW THE CLAIM TO BE AMENDED BY
JOINING THE CORPORATION OR ITS TRUSTEE.  P. 172. 

(B)  IF PROSECUTION OF THE CLAIM WILL BE INCONSISTENT WITH THE PLAN
OF REORGANIZATION OF THE CORPORATION OR THE ADMINISTRATION OF ITS
AFFAIRS, THE CLAIM SHOULD BE DISALLOWED; IF NOT, THEN THE CLAIM SHOULD
BE CONSIDERED ON ITS MERITS.  P. 172. 

2.  THE "EXCLUSIVE JURISDICTION" GRANTED THE REORGANIZATION COURT BY
SEC. 77(A) IS THAT WHICH BANKRUPTCY COURTS HAVE CUSTOMARILY POSSESSED;
AND THE TITLE AND POWERS OF THE TRUSTEE ARE BY SEC. 77(C)(2)
ASSIMILATED TO THOSE OF TRUSTEES IN ORDINARY BANKRUPTCY PROCEEDINGS. 
P. 164. 

3.  SO FAR AS ENFORCEMENT OF CLAIMS IS CONCERNED, THERE IS NO
INDICATION THAT CONGRESS ADOPTED A DIFFERENT RULE IN PROCEEDINGS UNDER
SEC. 77 THAN HAD LONG OBTAINED IN ORDINARY BANKRUPTCY PROCEEDINGS.  P.
164. 

4.  LITIGATION COMMENCED BY OR ON BEHALF OF A CORPORATION MAY NOT BE
DEFEATED BY SUPERVENING PROCEEDINGS FOR REORGANIZATION OF THE
CORPORATION UNDER SEC. 77 OF THE BANKRUPTCY ACT.  P. 165. 

5. THE TRUSTEE, BEING IN A POSITION TO TAKE CONTROL OF THE LITIGATION
BY REASON OF THE FACT THAT THE CAUSE OF ACTION HAS BECOME A PART OF THE
ESTATE, SHOULD HAVE THE OPPORTUNITY TO MAKE THE CHOICE - OF PERMITTING
THE SUIT TO CONTINUE WITHOUT INTERFERENCE; OF INTERVENING IN IT; OF
STARTING A NEW SUIT; OR OF CAUSING THE SUIT TO BE ABATED - WHICH IS
MOST ADVANTAGEOUS TO THE ESTATE.  P. 167. 

6.  SINCE THE CLAIM IN THIS CASE WAS FILED BEFORE THE PETITION OF THE
CORPORATION FOR REORGANIZATION UNDER SEC. 77 WAS APPROVED, THAT EVENT
SHOULD HAVE NO DIFFERENT EFFECT ON THE CLAIM THAN IT WOULD HAVE HAD ON
A SUIT WHICH HAD BEEN PREVIOUSLY INSTITUTED BY OR ON BEHALF OF THE
CORPORATION.  P. 169. 

7.  WHERE A CLAIM ON BEHALF OF A CORPORATION IS FILED IN A
REORGANIZATION PROCEEDING, THE NECESSARY AND PROPER PROCEDURE IS FOR
THE REORGANIZATION COURT TO SUMMON IN THE CORPORATION OR ITS TRUSTEE,
SO THAT ALL PARTIES WILL BE BOUND BY ANY ORDER WHICH IS ENTERED ON THE
MERITS.  P. 170. 

8.  CONTINUATION OF THE PROSECUTION OF THE CLAIM BY THE PETITIONER
MIGHT BE WHOLLY COMPATIBLE WITH THE DISPOSITION OF THE CLAIM BY THE
REORGANIZATION COURT OR WITH THE ADMINISTRATION OF THE ESTATE.  PP.
171, 172. 

MEYER V. FLEMING ET AL., TRUSTEES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

IN A REORGANIZATION PROCEEDING UNDER SEC. 77 OF THE BANKRUPTCY ACT, A
CLAIM OF THE PETITIONER WAS DISALLOWED.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  149 F.2D 529.  THIS COURT GRANTED CERTIORARI.  326 U.S.
707.  REVERSED AND REMANDED, P. 172. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS THE OWNER OF A SUBSTANTIAL NUMBER OF SHARES OF STOCK OF
THE ST. LOUIS SOUTHWESTERN RAILWAY COMPANY.  IN APRIL 1934 HE FILED A
CLAIM FOR THE BENEFIT OF ST. LOUIS SOUTHWESTERN IN THE BANKRUPTCY
PROCEEDINGS WHICH PREVIOUSLY HAD BEEN INSTITUTED UNDER SEC. 77 OF THE
BANKRUPTCY ACT (49 STAT. 911, 11 U.S.C. SEC. 205) FOR THE
REORGANIZATION OF THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO. THE
CLAIM FILED WAS A CLAIM FOR A CAUSE OF ACTION WHICH ST. LOUIS
SOUTHWESTERN ALLEGEDLY HAD AGAINST THE ROCK ISLAND.  IT AMOUNTED TO
MANY MILLIONS OF DOLLARS AND AROSE OUT OF AN ALLEGED CONSPIRACY BETWEEN
THE ROCK ISLAND AND OTHERS TO CONTROL THE ST. LOUIS SOUTHWESTERN TO
THEIR OWN INTEREST, IN BREACH OF THEIR FIDUCIARY RELATIONSHIP TO ST.
LOUIS SOUTHWESTERN, AND IN VIOLATION OF THE ANTITRUST LAWS.  IT WAS
STATED IN THE CLAIM THAT A DEMAND ON THE BOARD OF DIRECTORS OF ST.
LOUIS SOUTHWESTERN TO FILE THE CLAIM WAS NOT MADE BECAUSE IT WOULD BE
FUTILE, THE DOMINANT STOCKHOLDER AND THE DIRECTORS OF ST. LOUIS
SOUTHWESTERN BEING PARTIES TO THE CONSPIRACY.  IN MAY 1935 THE TRUSTEES
OF ROCK ISLAND OBJECTED TO THE CLAIM BY GENERAL DENIAL.  IN DECEMBER
1935 - ABOUT A YEAR AND A HALF AFTER THE CLAIM HAD BEEN FILED - ST.
LOUIS SOUTHWESTERN FILED A PETITION FOR REORGANIZATION UNDER SEC. 77 OF
THE BANKRUPTCY ACT.  SHORTLY THEREAFTER THE PETITION WAS APPROVED AND A
TRUSTEE WAS APPOINTED.  THEREUPON THE TRUSTEES OF ROCK ISLAND FURTHER
OBJECTED TO THE CLAIM FILED BY PETITIONER ON THE GROUND THAT ALL CAUSES
OF ACTION BELONGING TO ST. LOUIS SOUTHWESTERN HAD BECOME VESTED IN ITS
BANKRUPTCY TRUSTEE AND COULD NO LONGER BE ASSERTED IN THE ROCK ISLAND
PROCEEDING BY PETITIONER.  THE CLAIM WAS REFERRED TO A SPECIAL MASTER
WHO, IN FEBRUARY 1942, FILED HIS REPORT, CONCLUDING THAT PETITIONER
SHOULD NOT BE ALLOWED TO PROSECUTE THE CLAIM.  TWO YEARS LATER THE
DISTRICT COURT APPROVED THE SPECIAL MASTER'S REPORT AND DISALLOWED THE
CLAIM.  ON APPEAL THE CIRCUIT COURT OF APPEALS AFFIRMED.  149 F.2D
529.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE THE PROBLEM PRESENTED IS AN IMPORTANT ONE IN BANKRUPTCY
LAW. 

THE CIRCUIT COURT OF APPEALS HELD THAT A STOCKHOLDERS' DERIVATIVE
SUIT COMMENCED BEFORE THE CORPORATION'S PETITION UNDER SEC. 77 HAD BEEN
APPROVED COULD NOT BE CONTINUED THEREAFTER WITHOUT PERMISSION OF THE
REORGANIZATION COURT.  IT RELIED ON THE PROVISIONS OF SEC. 77 WHICH
GAVE THE REORGANIZING COURT EXCLUSIVE JURISDICTION OF THE DEBTOR AND
ITS PROPERTY  FN1  AND WHICH GIVE A TRUSTEE APPOINTED IN THOSE
PROCEEDINGS THE TITLE AND POWERS OF OTHER BANKRUPTCY TRUSTEES.  FN2 BUT
THE EXCLUSIVE JURISDICTION GRANTED THE REORGANIZATION COURT BY SEC.
77(A) IS THAT WHICH BANKRUPTCY COURTS HAVE CUSTOMARILY POSSESSED.  FN3
AND THE TITLE AND POWERS OF THE TRUSTEE ARE BY SEC. 77(C)(2)
ASSIMILATED TO THOSE OF TRUSTEES IN ORDINARY BANKRUPTCY PROCEEDINGS. 
CERTAINLY, SO FAR AS THE ENFORCEMENT OF CLAIMS IS CONCERNED, THERE IS
NO INDICATION THAT CONGRESS ADOPTED A DIFFERENT RULE IN PROCEEDINGS
UNDER SEC. 77 THAN HAD LONG OBTAINED IN ORDINARY BANKRUPTCY
PROCEEDINGS.  YET, IF THE VIEW OF THE CIRCUIT COURT OF APPEALS WERE
FOLLOWED, ANY SUIT WHICH HAD BEEN BROUGHT BY THE CORPORATION BEFORE ITS
PETITION UNDER SEC. 77 HAD BEEN APPROVED WOULD BE DEFEATED WHEN THAT
EVENT HAPPENED.  THAT IS NOT THE RULE IN ORDINARY BANKRUPTCY
PROCEEDINGS.  AND IT WOULD BE A RADICAL CHANGE IN THE LAW TO WRITE THAT
RULE INTO SEC. 77. 

LITIGATION INSTITUTED BY A CREDITOR MAY NOT BE DEFEATED MERELY BY
REASON OF THE FACT THAT HE HAS BECOME A BANKRUPT.  THATCHER V.
ROCKWELL, 105 U.S. 467, 469-470.  TITLE TO THE CLAIM VESTS, OF COURSE,
IN THE BANKRUPTCY TRUSTEE.  FN4  HE IS IN POSITION TO TAKE CONTROL OF
THE LITIGATION.  HE MAY, AS INDICATED IN JOHNSON V. COLLIER, 222 U.S.
538, 540, START A NEW SUIT  FN5  AND CAUSE THE OLD ONE TO BE ABATED, OR
INTERVENE IN THE OLD ONE  FN6  AND OBTAIN SUCH BENEFITS AS IT AFFORDS. 
FN7  THE CHOICE MAY INDEED BE A VALUABLE ONE.  RIGHTS MIGHT BE LOST IF
THE EARLIER SUIT WERE ABATED.  AND THE SPECULATIVE NATURE OF THE
LITIGATION OR THE EXPENSE INVOLVED MIGHT INDICATE TO THE TRUSTEE THAT
IT WAS MORE PROVIDENT FOR HIM NOT TO INTERVENE IN THE EXISTING SUIT,
NOR TO INSTITUTE A NEW ONE, BUT TO LET THE ONE WHICH HAD BEEN STARTED
RUN ITS COURSE.  FN8  AS STATED IN JOHNSON V. COLLIER, SUPRA, P. 540, 

"IF, BECAUSE OF THE DISPROPORTIONATE EXPENSE, OR UNCERTAINTY AS TO
THE RESULT, THE TRUSTEE NEITHER SUES NOR INTERVENES, THERE IS NO REASON
WHY THE BANKRUPT HIMSELF SHOULD NOT CONTINUE THE LITIGATION.  HE HAS AN
INTEREST IN MAKING THE DIVIDEND FOR CREDITORS AS LARGE AS POSSIBLE, AND
IN SOME STATES THE MORE DIRECT INTEREST OF CREATING A FUND WHICH MAY BE
SET APART TO HIM AS AN EXEMPTION.  IF THE TRUSTEE WILL NOT SUE AND THE
BANKRUPT CANNOT SUE, IT MIGHT RESULT IN THE BANKRUPT'S DEBTOR BEING
DISCHARGED OF AN ACTUAL LIABILITY.  THE STATUTE INDICATES NO SUCH
PURPOSE, AND IF MONEY OR PROPERTY IS FINALLY RECOVERED, IT WILL BE FOR
THE BENEFIT OF THE ESTATE.  NOR IS THERE ANY MERIT IN THE SUGGESTION
THAT THIS MIGHT INVOLVE A LIABILITY TO PAY BOTH THE BANKRUPT AND THE
TRUSTEE.  THE DEFENDANT IN ANY SUCH SUIT CAN, BY ORDER OF THE BANKRUPT
COURT, BE AMPLY PROTECTED AGAINST ANY DANGER OF BEING MADE TO PAY
TWICE."  FN9  THE SAME RULE OBTAINS IN EQUITY RECEIVERSHIPS.  FN10 

WE SEE NO REASON WHY THERE SHOULD BE A DIFFERENT RULE IN THE CASE OF
STOCKHOLDERS' DERIVATIVE SUITS.  THEY ARE LIKEWISE SUITS TO ENFORCE A
CORPORATE CLAIM.  THEY ARE ONE OF THE REMEDIES WHICH EQUITY DESIGNED
FOR THOSE SITUATIONS WHERE THE MANAGEMENT THROUGH FRAUD, NEGLECT OF
DUTY OR OTHER CAUSE DECLINES TO TAKE THE PROPER AND NECESSARY STEPS TO
ASSERT THE RIGHTS WHICH THE CORPORATION HAS.  FN11  THE STOCKHOLDERS
ARE THEN ALLOWED TO TAKE THE INITIATIVE AND INSTITUTE THE SUIT WHICH
THE MANAGEMENT SHOULD HAVE STARTED HAD IT PERFORMED ITS DUTY.  THE
CORPORATION IS A NECESSARY PARTY.  DAVENPORT V. DOWS, 18 WALL.  626. 
HENCE, IT IS JOINED AS A DEFENDANT.  BUT IT IS ONLY NOMINALLY A
DEFENDANT, SINCE ANY JUDGMENT OBTAINED AGAINST THE REAL DEFENDANT RUNS
IN ITS FAVOR.  THE REASONS OF POLICY FOR HOLDING THAT ORDINARY SUITS TO
ENFORCE A CORPORATE CLAIM ARE NOT ABATED WHEN THE CORPORATION IS
ADJUDGED A BANKRUPT OR WHEN A RECEIVER IS APPOINTED ARE EQUALLY
APPLICABLE HERE.  THE CLAIM SOUGHT TO BE ENFORCED IN A DERIVATIVE SUIT
MAY BE AN IMPORTANT ASSET OF THE ESTATE.  IT MIGHT BE LOST TO THE
ESTATE THROUGH THE OPERATION OF STATUTES OF LIMITATIONS, IF THE TRUSTEE
OR RECEIVER WERE REQUIRED TO START ANEW.  AS IN CASE OF ORDINARY SUITS
TO ENFORCE CORPORATE CLAIMS, HE SHOULD BE ALLOWED A CHOICE TO LET THE
SUIT CONTINUE UNDER THE STOCKHOLDERS' AUSPICES; FN12  TO INTERVENE IN
IT; FN13  TO START A NEW SUIT; OR, IN CASE HE DEEMS IT MORE PROVIDENT
FROM THE POINT OF VIEW OF THE ESTATE TO MAKE A SETTLEMENT OF THE CLAIM
OR TO RESERVE IT FOR THE REORGANIZED COMPANY, TO CAUSE IT TO BE
ABATED.  FN14  HE MIGHT CONCLUDE THAT THE MORE PROVIDENT COURSE WAS TO
LET THE SUIT CONTINUE WITHOUT INTERFERENCE.  FN15  THAT DECISION MIGHT
BE DICTATED BY THE SPECULATIVE NATURE OF THE SUIT AND THE EXPENSE
INVOLVED, AS JOHNSON V. COLLIER, SUPRA, INDICATES.  IF THE TRUSTEE WILL
NOT SUE AND THE STOCKHOLDER CANNOT CONTINUE WITH THE LITIGATION, WHAT
MIGHT TURN OUT TO BE A VALUABLE CLAIM MIGHT BE LOST TO THE ESTATE, NOT
ONLY THROUGH THE OPERATION OF STATUTES OF LIMITATIONS, BUT IN CASES
LIKE THE PRESENT THROUGH A DISCHARGE OF THE DEBTOR.  FN16  THE POINT IS
THAT THE TRUSTEE OR RECEIVER, BEING IN A POSITION TO TAKE CONTROL OF
THE LITIGATION BY REASON OF THE FACT THAT THE CAUSE OF ACTION HAS
BECOME A PART OF THE ESTATE, SHOULD HAVE THE OPPORTUNITY TO MAKE THE
CHOICE WHICH IS MOST ADVANTAGEOUS TO THE ESTATE.  CF. THOMPSON V.
MAGNOLIA PETROLEUM CO., 309 U.S. 478, 483.  THE FACT THAT THE
CORPORATION IS NOMINALLY A DEFENDANT SHOULD NOT LEAD TO ANY DIFFERENT
RESULT.  FN17  THAT GIVES THE SUIT ONLY A DIFFERENCE IN FORM, NOT A
DIFFERENCE IN SUBSTANCE. 

WE HAVE IN THE PRESENT CASE NOT A STOCKHOLDERS' DERIVATIVE SUIT FILED
BEFORE THE BANKRUPTCY OF HIS CORPORATION, BUT A CLAIM FILED IN THE
BANKRUPTCY PROCEEDINGS OF THE ALLEGED DEBTOR (ROCK ISLAND) BY A
STOCKHOLDER ON BEHALF OF HIS CORPORATION, ST. LOUIS SOUTHWESTERN.  IF
THE CLAIM WERE TO BE FILED AFTER THE PETITION FOR THE REORGANIZATION OF
ST. LOUIS SOUTHWESTERN HAD BEEN APPROVED, IT COULD BE DONE ONLY WITH
THE CONSENT OF THE BANKRUPTCY COURT.  FOR IT HAS EXCLUSIVE AUTHORITY TO
DETERMINE HOW CAUSES OF ACTION WHICH HAVE BECOME A PART OF THE
BANKRUPTCY ESTATE SHALL BE ENFORCED.  SEE PORTER V. SABIN, 149 U.S.
473; KLEIN V. PETER, 284 F. 797.  BUT SINCE THE CLAIM WAS FILED BEFORE
THE PETITION OF ST. LOUIS SOUTHWESTERN UNDER SEC. 77 HAD BEEN APPROVED,
NO REASON IS APPARENT WHY THAT EVENT SHOULD HAVE A DIFFERENT EFFECT ON
THE CLAIM THAN IT WOULD HAVE HAD ON A SUIT WHICH HAD BEEN PREVIOUSLY
INSTITUTED BY OR ON BEHALF OF THE CORPORATION.  INDEED, THE FACTS OF
THIS CASE EMPHASIZE THE REASON FOR GIVING THE TRUSTEE AN OPPORTUNITY TO
CHOOSE WHAT COURSE TO TAKE.  THE CLAIM WAS FILED IN APRIL 1934, A YEAR
AND A HALF PRIOR TO THE TIME WHEN THE PETITION OF ST. LOUIS
SOUTHWESTERN UNDER SEC. 77 HAD BEEN APPROVED.  WE ARE TOLD THAT THE
TIME FOR FILING OF CLAIMS AGAINST THE ROCK ISLAND EXPIRED OVER ELEVEN
YEARS AGO.  IF THE CLAIM WERE NOW DISALLOWED, THE TRUSTEE OF ST. LOUIS
SOUTHWESTERN, IF HE DESIRED TO ASSERT IT, WOULD BE FACED WITH THE TASK
OF OBTAINING LEAVE TO FILE OUT OF TIME.  FN18  THERE IS, THEREFORE, THE
SAME REASON FOR ALLOWING THE ESTATE TO OBTAIN THE BENEFITS OF THE CLAIM
WHICH HAS BEEN FILED, AS THERE WOULD BE FOR ALLOWING THE TRUSTEE THE
OPPORTUNITY TO TAKE OVER A STOCKHOLDERS' DERIVATIVE SUIT PREVIOUSLY
INSTITUTED. 

IT IS SAID, HOWEVER, THAT THE CLAIM WAS PROPERLY DISALLOWED BECAUSE
THE CORPORATION ON WHOSE BEHALF THE CLAIM WAS FILED WAS NOT BEFORE THE
COURT.  AS WE HAVE SAID, THE CORPORATION IS A NECESSARY PARTY IN A
STOCKHOLDERS' DERIVATIVE SUIT.  DAVENPORT V. DOWS, SUPRA.  IT CAN BE
JOINED AS A PARTY AND BROUGHT IN BY SUMMONS IN THE USUAL WAY.  BUT THE
FILING OF A CLAIM IN BANKRUPTCY IS NOT THE INSTITUTION OF A PLENARY
SUIT.  IT IS A CLAIM AGAINST ASSETS IN THE HANDS OF THE BANKRUPTCY
COURT, NOT AN ACTION IN PERSONAM.  THE ABSENCE OF THE CORPORATION IS A
PROPER BASIS FOR AN OBJECTION TO THE CLAIM.  BUT THERE IS NO WAY
AVAILABLE TO THE STOCKHOLDER TO JOIN IT IN THE CLAIM OTHER THAN BY
MOVING THE BANKRUPTCY COURT TO BRING IT IN.  THE BANKRUPTCY COURT HAS
THAT POWER.  FN19  THE OBJECTIONS TO THE PRESENT CLAIM, HOWEVER, WERE
NOT BASED ON THE ABSENCE BEFORE THE COURT OF ST. LOUIS SOUTHWESTERN OR
ITS TRUSTEE.  FN20  BUT WHETHER SUCH AN OBJECTION WAS MADE OR NOT, THE
PROPER AND NECESSARY PROCEDURE FOR THE BANKRUPTCY COURT IS TO SUMMON IN
THE CORPORATION OR ITS TRUSTEE SO THAT ALL PARTIES WILL BE BOUND BY ANY
ORDER WHICH IS ENTERED ON THE MERITS.  FN21 

IT IS SAID, HOWEVER, THAT BY REASON OF EVENTS WHICH HAVE TRANSPIRED
SINCE ST. LOUIS SOUTHWESTERN FILED ITS PETITION FOR REORGANIZATION
UNDER SEC. 77, THE CLAIM WHICH MEYER FILED IN THE ROCK ISLAND
REORGANIZATION PROCEEDINGS WAS PROPERLY DISALLOWED.  IN THE FIRST
PLACE, IT APPEARS THAT A REORGANIZATION PLAN FOR THE ST. LOUIS
SOUTHWESTERN HAS BEEN APPROVED BY THE DISTRICT COURT.  IN RE ST. LOUIS
SOUTHWESTERN R. CO., 53 F.SUPP.  914.  THE INTERSTATE COMMERCE
COMMISSION, IN PREPARING THE PLAN, INVESTIGATED MEYER'S CHARGES AND
CONCLUDED THAT THEY HAD NO SUBSTANTIAL SUPPORT.  ST. LOUIS SOUTHWESTERN
R. CO. REORGANIZATION, 249 I.C.C. 5, 46-149; 252 I.C.C. 325, 330-337. 
IT REFUSED TO RECOMMEND THAT THE CAUSE OF ACTION BE RESERVED IN THE
PLAN OF REORGANIZATION.  252 I.C.C., PP. 334-335.  THE DISTRICT COURT
CONCURRED IN THAT RECOMMENDATION (53 F.SUPP., P. 925), SAYING THAT THE
TRUSTEE HAD INVESTIGATED THE CHARGES, FOUND NO BASIS FOR INSTITUTING
LEGAL PROCEEDINGS ON BEHALF OF ST. LOUIS SOUTHWESTERN, AND THAT THERE
WAS NO CHARGE THAT THE TRUSTEE HAD ACTED IN BAD FAITH OR HAD SHOWN A
LACK OF DILIGENCE.  53 F.SUPP.  926.  MOREOVER, WE WERE ADVISED ON ORAL
ARGUMENT, ALTHOUGH THE MATTER DOES NOT APPEAR OF RECORD, THAT A MOTION
OF MEYER IN THE ST. LOUIS SOUTHWESTERN PROCEEDINGS FOR AN ORDER
DIRECTED TO THE TRUSTEE TO SHOW CAUSE WHY MEYER SHOULD NOT BE PERMITTED
TO PROSECUTE THE CLAIM FILED BY HIM IN THE ROCK ISLAND PROCEEDINGS WAS
DENIED IN FEBRUARY 1944.  THE GROUNDS OF THIS DENIAL DO NOT APPEAR.  WE
CAN INFER, ON THE BASIS OF THE OPINION OF THE DISTRICT COURT CONFIRMING
THE PLAN, THAT THE MOTION WAS DENIED BECAUSE THE COURT WAS OF THE VIEW
THAT THE CLAIM HAD NO SUBSTANCE.  BUT A DECISION OF THE COURT NOT TO
DIRECT OR AUTHORIZE ITS TRUSTEE TO UNDERTAKE THE PROSECUTION OF A CLAIM
IS ONE THING; THE PROBLEM PRESENTED HERE IS QUITE A DIFFERENT ONE. 
WHILE THE COURT MIGHT NOT DEEM IT PROVIDENT TO HAVE THE ESTATE ASSUME
THAT BURDEN, THE CONTINUATION OF THE PROSECUTION OF THE CLAIM BY MEYER
MIGHT BE WHOLLY COMPATIBLE WITH THE DISPOSITION OF THE CLAIM BY THE
REORGANIZATION COURT OR WITH THE ADMINISTRATION OF THE ESTATE.  IT IS
NOT APPARENT IN THIS CASE THAT THERE WOULD BE ANY SUCH INCONSISTENCY IN
VIEW OF THE FACT THAT THE PLAN MAKES NO PROVISION FOR THE CLAIM.  AS
STATED IN JOHNSON V. COLLIER, SUPRA, P. 540, "IF THE TRUSTEE WILL NOT
SUE AND THE BANKRUPT CANNOT SUE, IT MIGHT RESULT IN THE BANKRUPT'S
DEBTOR BEING DISCHARGED OF AN ACTUAL LIABILITY."    THE ORDER
DISALLOWING THE CLAIM WILL BE REVERSED.  ON REMAND OF THE CAUSE THE
DISTRICT COURT WILL ALLOW THE CLAIM TO BE AMENDED BY JOINING ST. LOUIS
SOUTHWESTERN OR ITS TRUSTEE.  IF IT IS ESTABLISHED THAT THE CONTINUED
PROSECUTION OF THE CLAIM WILL BE INCONSISTENT WITH THE PLAN OF
REORGANIZATION OF ST. LOUIS SOUTHWESTERN OR THE ADMINISTRATION OF ITS
AFFAIRS, THE CLAIM SHOULD BE DISALLOWED.  IF IT IS NOT SO ESTABLISHED,
THE CLAIM SHOULD THEN BE CONSIDERED ON ITS MERITS.  SO ORDERED. 

FN1  SEC. 77(A) PROVIDES IN PART: 

"IF THE PETITION IS SO APPROVED, THE COURT IN WHICH SUCH ORDER IS
ENTERED SHALL, DURING THE PENDENCY OF THE PROCEEDINGS UNDER THIS
THE DEBTOR AND ITS PROPERTY WHEREVER LOCATED, AND SHALL HAVE AND MAY
EXERCISE IN ADDITION TO THE POWERS CONFERRED BY THIS SECTION ALL THE
POWERS, NOT INCONSISTENT WITH THIS SECTION, WHICH A FEDERAL COURT WOULD
HAVE HAD IF IT HAD APPOINTED A RECEIVER IN EQUITY OF THE PROPERTY OF
THE DEBTOR FOR ANY PURPOSE.  PROCESS OF THE COURT SHALL EXTEND TO AND
BE VALID WHEN SERVED IN ANY JUDICIAL DISTRICT." 

SEC. 77(L) PROVIDES: 

"IN PROCEEDINGS UNDER THIS SECTION AND CONSISTENT WITH THE PROVISIONS
THEREOF, THE JURISDICTION AND POWERS OF THE COURT, THE DUTIES OF THE
DEBTOR AND THE RIGHTS AND LIABILITIES OF CREDITORS, AND OF ALL PERSONS
WITH RESPECT TO THE DEBTOR AND ITS PROPERTY, SHALL BE THE SAME AS IF A
VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN FILED AND A DECREE OF
ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE DEBTOR'S PETITION WAS
FILED." 

FN2  SEC. 77(C)(2) PROVIDES IN PART: 

"THE TRUSTEE OR TRUSTEES SO APPOINTED, UPON FILING SUCH BOND, SHALL
HAVE ALL THE TITLE AND SHALL EXERCISE, SUBJECT TO THE CONTROL OF THE
JUDGE AND CONSISTENTLY WITH THE PROVISIONS OF THIS SECTION, ALL OF THE
POWERS OF A TRUSTEE APPOINTED PURSUANT TO SECTION 44 OF THIS ACT OR ANY
OTHER SECTION OF THIS ACT, AND, TO THE EXTENT NOT INCONSISTENT WITH
THIS SECTION, IF AUTHORIZED BY THE JUDGE, THE POWERS OF A RECEIVER IN
AN EQUITY PROCEEDING  ..." 

FN3  ISAACS V. HOBBS TIE CO., 282 U.S. 734, 737-738; EX PARTE BALDWIN,
291 U.S. 610, 615; CONTINENTAL ILLINOIS NATIONAL BANK V. CHICAGO, R.I.
& P.R. CO., 294 U.S. 648, 682-684; THOMPSON V. MAGNOLIA PETROLEUM CO.,
309 U.S. 478, 483.  AND SEE THOMPSON V. TERMINAL SHARES, 104 F.2D 1. 
CF. IN RE STANDARD GAS & ELECTRIC CO., 119 F.2D 658, 661, ARISING UNDER
SEC. 77B. 

FN4  SEC. 70 OF THE BANKRUPTCY ACT, 52 STAT. 879, 11 U.S.C. SEC.
110.  THE SAME IS TRUE UNDER SEC. 77 BY REASON OF THE PROVISION IN SEC.
77(C)(2), SUPRA NOTE 2. 

FN5  SEC. 11(E) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 29(E),
AUTHORIZES A RECEIVER OR TRUSTEE, WITHIN TWO YEARS SUBSEQUENT TO THE
ADJUDICATION OR WITHIN SUCH FURTHER PERIOD OF TIME AS FEDERAL OR STATE
LAW PERMITS, TO INSTITUTE PROCEEDINGS IN BEHALF OF THE ESTATE UPON ANY
CLAIM AGAINST WHICH THE STATUTE OF LIMITATIONS HAD NOT EXPIRED AT THE
TIME OF THE FILING OF THE PETITION IN BANKRUPTCY. 

THIS PROVISION IS APPLICABLE TO PROCEEDINGS UNDER SEC. 77 BY REASON
OF SEC. 77(1), SET FORTH IN SUPRA NOTE 1. 

FN6  SEC. 11(C) OF THE BANKRUPTCY ACT, 52 STAT. 849, 11 U.S.C. SEC.
29(C), PROVIDES THAT "A RECEIVER OR TRUSTEE MAY, WITH THE APPROVAL OF
THE COURT, BE PERMITTED TO PROSECUTE AS RECEIVER OR TRUSTEE ANY SUIT
COMMENCED BY THE BANKRUPT PRIOR TO THE ADJUDICATION, WITH LIKE FORCE
AND EFFECT AS THOUGH IT HAD BEEN COMMENCED BY HIM."  THIS PROVISION IS
LIKEWISE APPLICABLE TO PROCEEDINGS UNDER SEC. 77(1), SUPRA NOTE 1. 

FN7  AND SEE DANCIGER V. SMITH, 276 U.S. 542; BLUEGRASS CANNING CO.
V. STEWARD, 175 F. 537, 543-544; PARADISE V. VOGTLANDISCHE
MASCHINENFABRIK, 99 F.2D 53, 55; BENNETT V. ASSOCIATED THEATERS, 247
MICH. 493, 496, 226 N.W. 239; GRIFFIN V. MUTUAL LIFE INS. CO., 119 GA.
664, 46 S.E. 870. 

FN8  IF THE SUIT IS CONTINUED BY THE BANKRUPT, THE TRUSTEE IS
CONCLUDED BY THE JUDGMENT.  EYSTER V. GAFF, 91 U.S. 521, 524-525;
PARADISE V. VOGTLANDISCHE MASCHINEN-FABRIK, SUPRA NOTE 7, P. 55. 

FN9 AS STATED IN VAN DER STEGEN V. NEUSS, HESSLEIN & CO., 270 N.Y.
55, 59-60, 200 N.E. 577: 

"AGAIN, THE TRUSTEE IN BANKRUPTCY IS NOT OBLIGED TO MAINTAIN OR
CONTINUE EVERY CAUSE OF ACTION WHICH THE BANKRUPT MAY HAVE.  HE IS NOT
BOUND TO ACCEPT BURDENSOME PROPERTY NOR UNPROFITABLE CONTRACTS
(ATCHISON, T. & S.F. RY. CO. V. HURLEY, 153 FED. REP. 503; AFFD., 213
U.S. 126), NOR IS HE OBLIGED TO INTERVENE IN ANY ACTION PENDING BY OR
AGAINST THE BANKRUPT.  (KESSLER V. HERKLOTZ, 132 APP. DIV. 278; FLEMING
V. COURTENAY, 98 ME. 401.)  IF A TRUSTEE DOES NOT TAKE UP THE
PROSECUTION OF A SUIT THE DEFENDANT IS NOT RELEASED EVEN WHERE THE
RIGHT OF ACTION IS ONE THAT MIGHT HAVE PASSED TO THE TRUSTEE.  THE
BANKRUPT MAY CONTINUE THE PROSECUTION OF THE ACTION.  (GRIFFIN V.
MUTUAL LIFE INS. CO., 119 GA. 664.)  THE RELATIONSHIP, THEREFORE,
BETWEEN THE BANKRUPT AND HIS TRUSTEE IS FOR ONE AND THE SAME PURPOSE -
TO GET OUT OF THE BANKRUPT'S PROPERTY AND CLAIMS ENOUGH MONEY TO PAY
HIS DEBTS AND TO RELIEVE THE BANKRUPT, THROUGH HIS DISCHARGE, FROM
FURTHER RESPONSIBILITY." 

FN10  SEE MISSOURI, K. & T. TRUST CO. V. GERMAN NATIONAL BANK, 77 F.
117, 122-123; BOSTON ELEVATED R. CO. V. PAUL BOYNTON CO., 211 F. 812,
822-823; HARTFORD ACCIDENT & INDEMNITY CO. V. FEDERAL BOND & MORTGAGE
CO., 59 F.2D 950, 956.  SEE 1 CLARK ON RECEIVERS (2D ED., 1929) SECS.
614, 615. 

FN11  GLENN, THE STOCKHOLDER'S SUIT, 33 YALE L. JOURN.  580. 

FN12  CF. AMERICAN STEEL FOUNDRIES V. CHICAGO, R.I. & P.R. CO., 231
F. 1003; SEAGRIST V. REID, 171 APP. DIV. 755, 759, 157 N.Y.S. 979.  AND
SEE 4 COOK ON CORPORATIONS (8TH ED., 1923) SEC. 748. 

FN13  MEYER V. PAGE, 112 APP. DIV. 625, 627, 98 N.Y.S. 739; FLOYD V.
LAYTON, 172 N.C. 64, 89 S.E. 998. 

FN14  MOREOVER, THE STOCKHOLDER'S SUIT MIGHT SO INTIMATELY AFFECT THE
ADMINISTRATION OF THE BANKRUPTCY OR RECEIVERSHIP ESTATE AS TO REQUIRE
THAT IT BE CONTINUED ONLY UNDER THE AUSPICES OF THE TRUSTEE OR
RECEIVER.  SEE ADLER V. SEAMAN, 266 F. 828, 835-837; SEAMAN V.
MCCULLOCH, 8 F.2D 820, 825-826. 

FN15  IN RE NATIONAL REPUBLIC CO., 109 F.2D 167, 171; MCANARNEY V.
LEMBECK, 97 N.J. EQ. 361, 127 A. 197. 

FN16  SEC. 77(F) PROVIDES FOR THE DISCHARGE OF THE DEBTOR "FROM ITS
DEBTS AND LIABILITIES, EXCEPT SUCH AS MAY CONSISTENTLY WITH THE
PROVISIONS OF THE PLAN BE RESERVED  ..." 

FN17  BUT SEE COYLE V. SKIRVIN, 124 F.2D 934, 937-938(RECEIVERSHIP). 
THE PROVISION IN SEC. 77(J) EMPOWERING THE COURT TO "ENJOIN OR STAY THE
COMMENCEMENT OR CONTINUATION OF SUITS AGAINST THE DEBTOR UNTIL AFTER
FINAL DECREE" OBVIOUSLY RELATES TO SUITS WHERE CLAIMS ARE ASSERTED
AGAINST THE DEBTOR, NOT WHERE THE DEBTOR IS MADE A NOMINAL DEFENDANT
FOR THE PURPOSE OF OBTAINING A JUDGMENT IN ITS FAVOR. 

FN18  SEC. 77(C)(7) PROVIDES THAT THE JUDGE "SHALL PROMPTLY DETERMINE
AND FIX A REASONABLE TIME WITHIN WHICH THE CLAIMS OF CREDITORS MAY BE
FILED OR EVIDENCED AND AFTER WHICH NO CLAIM NOT SO FILED OR EVIDENCED
MAY PARTICIPATE EXCEPT ON ORDER FOR CAUSE SHOWN  ..."  THIS IS THE
EQUITY RULE (5 COLLIER ON BANKRUPTCY (1944) P. 537) WHICH PERMITS THE
FILING OF CLAIMS OUT OF TIME PROVIDED THE CLAIM IS EQUITABLE, THE
CLAIMANT IS NOT CHARGEABLE WITH LACHES, AND THE ASSETS HAVE NOT BEEN
DISTRIBUTED (SEE CONKLIN V. UNITED STATES SHIPBUILDING CO., 136 F.
1006, 1009-1010; PENNSYLVANIA STEEL CO. V. NEW YORK CITY R. CO., 198 F.
721, 740-742); AND PROVIDED FURTHER THAT THE LATE FILING DOES NOT
UNDULY DELAY THE PROCEEDINGS.  GUARANTY TRUST CO. V. HENWOOD, 86 F.2D
347, 353. 

FN19  SEC. 2(A)(6) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 11(A)(6)
GRANTS THE COURT POWER TO "BRING IN AND SUBSTITUTE ADDITIONAL PERSONS
OR PARTIES IN PROCEEDINGS UNDER THIS TITLE WHEN NECESSARY FOR THE
COMPLETE DETERMINATION OF A MATTER IN CONTROVERSY."  SEE 1 COLLIER ON
BANKRUPTCY (14 ED., 1940), PP. 214-218. 

FN20  ONE OF THE GROUNDS ON WHICH THE SPECIAL MASTER BASED HIS
RECOMMENDATION FOR DISALLOWANCE OF THE CLAIM WAS THAT THE CLAIM WAS
IMPROPERLY FILED IN THE FIRST INSTANCE, SINCE THE CORPORATION WAS NOT
MADE A PARTY.  BUT THE DISTRICT COURT, LIKE THE CIRCUIT COURT OF
APPEALS, PROCEEDED ON THE GROUND THAT THE CLAIM COULD NO LONGER BE
PROSECUTED AFTER APPROVAL OF THE PETITION FOR THE REORGANIZATION OF ST.
LOUIS SOUTHWESTERN UNLESS THE BANKRUPTCY COURT IN THAT PROCEEDING
EXPRESSLY AUTHORIZED IT. 

FN21  CF. 14 BOSTON UNIV.  L. REV. 802, 808. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :









MARTINO V. MICH. WINDOW CLEANING CO., 327 U.S. 173 


NO. 21.  ARGUED OCTOBER 8, 9, 1945.  - DECIDED FEBRUARY 4, 1946.  - 145
F.2D 163, REVERSED. 


RESPONDENT CORPORATION WAS ENGAGED IN WASHING WINDOWS WITHIN THE STATE
OF ITS INCORPORATION UNDER CONTRACTS WITH ITS CUSTOMERS.  THE GREATER
PART OF THE WORK WAS DONE ON PREMISES USED BY ITS CUSTOMERS IN THE
PRODUCTION OF GOODS FOR INTERSTATE COMMERCE.  ITS EMPLOYEES WERE
REQUIRED TO WORK OVERTIME AND WERE NOT PAID TIME AND A HALF EXCEPT FOR
HOURS WORKED IN EXCESS OF 44 HOURS PER WEEK.  THIS WAS IN ACCORDANCE
WITH BONA FIDE AGREEMENTS ENTERED INTO WITH THE LABOR UNION OF WHICH
ITS EMPLOYEES WERE MEMBERS.  IN A SUIT TO ENJOIN VIOLATIONS OF SEC.
15(A) OF THE FAIR LABOR STANDARDS ACT AND TO RECOVER FOR UNPAID
OVERTIME COMPENSATION UNDER SEC. 16(B) OF THE ACT, HELD: 

1.  RESPONDENT'S EMPLOYEES ARE ENGAGED "IN THE PRODUCTION OF GOODS
FOR (INTERSTATE) COMMERCE" SO AS TO BRING THEM WITHIN THE COVERAGE OF
THE FAIR LABOR STANDARDS ACT.  ROLAND ELECTRICAL CO. V. WALLING, 326
U.S. 657.  P. 176. 

2.  THEY ARE NOT EXEMPT AS EMPLOYEES OF A "RETAIL OR SERVICE
ESTABLISHMENT" WITHIN THE MEANING OF SEC. 13(A)(2) OF THE ACT.  ROLAND
ELECTRICAL CO. V. WALLING, SUPRA.  P. 177. 

3.  THE EXISTENCE AND OBSERVANCE OF WRITTEN AGREEMENTS ENTERED INTO
IN GOOD FAITH WITH THE LABOR UNION OF WHICH THE EMPLOYEES WERE MEMBERS,
PROVIDING FOR OVERTIME PAY FOR FEWER HOURS THAN REQUIRED BY THE ACT,
CONSTITUTE NO BAR TO THE RIGHT OF THE EMPLOYEES TO RECOVER UNDER SEC.
16(B) OF THE ACT.  P. 177. 

MARTINO V. MICHIGAN WINDOW CLEANING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

PETITIONER SUED TO ENJOIN VIOLATION OF SEC. 15(A) OF THE FAIR LABOR
STANDARDS ACT AND TO RECOVER UNDER SEC. 16(B) FOR UNPAID OVERTIME
COMPENSATION.  THE DISTRICT COURT DISMISSED THE COMPLAINT.  51 F.SUPP. 
505.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  145 F.2D 163.  THIS COURT
GRANTED CERTIORARI.  325 U.S. 849.  REVERSED, P. 178. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS HERE ARE THE SAME AS THOSE IN ROLAND ELECTRICAL CO. V.
WALLING, 326 U.S. 657.  THEY ARE (1) WHETHER RESPONDENT'S EMPLOYEES,
UNDER THE FACTS OF THIS CASE, ARE ENGAGED "IN THE PRODUCTION OF GOODS
FOR COMMERCE" WITHIN THE MEANING OF SECS. 6 AND 7 OF THE FAIR LABOR
STANDARDS ACT OF 1938(52 STAT. 1060, 1062-1063, 29 U.S.C. SECS. 206 AND
207), AND (2) WHETHER, IF SO ENGAGED, THEY NEVERTHELESS ARE EXEMPTED
FROM THE ACT BECAUSE THEY ARE ENGAGED IN A "RETAIL OR SERVICE
ESTABLISHMENT THE GREATER PART OF WHOSE SELLING OR SERVICING IS IN
INTRASTATE COMMERCE" WITHIN THE MEANING OF SEC. 13(A)(2).  29 U.S.C.
SEC. 213(A)(2).  AS IN THE ROLAND ELECTRICAL CO. CASE, WE ANSWER THE
FIRST QUESTION IN THE AFFIRMATIVE AND THE SECOND IN THE NEGATIVE.  THE
RESPONDENT ALSO URGES AS A DEFENSE THE WRITTEN AGREEMENTS WHICH IT HAD
RENEWED FROM YEAR TO YEAR WITH ITS EMPLOYEES FOR A HIGHER NUMBER OF
HOURS OF WORK PER WEEK, BEFORE PAYING OVERTIME, THAN IS PRESCRIBED IN
THE ACT. 

THE PETITIONER SUED THE RESPONDENT IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.  HE SUED FOR
HIMSELF AS A FORMER EMPLOYEE OF THE RESPONDENT AND ALSO IN A
REPRESENTATIVE CAPACITY FOR ITS OTHER EMPLOYEES SIMILARLY SITUATED.  HE
SOUGHT TO ENJOIN THE RESPONDENT FROM VIOLATION OF SEC. 15(A)(1), (2)
AND (3), 29 U.S.C. SEC. 215(A)(1), (2) AND (3), OF THE FAIR LABOR
STANDARDS ACT OF 1938, AND TO RECOVER UNDER SEC. 16(B) OF THE ACT  FN1
UNPAID OVERTIME COMPENSATION TOGETHER WITH A LIKE SUM AS LIQUIDATED
DAMAGES, A REASONABLE ATTORNEY'S FEE AND COSTS. 

THE DISTRICT COURT HEARD THE CASE ON THE PLEADINGS, STIPULATIONS OF
FACT AND THE PETITIONER'S MOTION FOR SUMMARY JUDGMENT, MADE SEVERAL
FINDINGS OF LAW, ORDERED THAT THE PETITIONERS RECOVER NOTHING AND
DISMISSED THE COMPLAINT.  51 F.SUPP.  505.  THE CIRCUIT COURT OF
APPEALS AFFIRMED THE DISMISSAL.  145 F.2D 163.  THIS COURT HAS GRANTED
A WRIT OF CERTIORARI, 325 U.S. 849, BECAUSE OF DIVERGENCE OF OPINIONS
AMONG THE CIRCUIT COURTS OF APPEALS AS TO THE INTERPRETATION OF SEC.
13(A)(2), AND NOW DECIDES THIS CASE IN FAVOR OF PETITIONERS, UPON
PRINCIPLES STATED IN ROLAND ELECTRICAL CO. V. WALLING, SUPRA. 

THE RESPONDENT, A MICHIGAN CORPORATION WITH ITS PRINCIPAL PLACE OF
BUSINESS IN DETROIT, WAS ENGAGED IN WASHING WINDOWS, PAINTING AND
SIMILAR MAINTENANCE WORK.  THE EMPLOYEES OF THE RESPONDENT WERE
REQUIRED IN SOME INSTANCES TO WORK LONGER THAN 42 HOURS PER WEEK
SUBSEQUENT TO OCTOBER 24, 1939, AND LONGER THAN 40 HOURS PER WEEK
SUBSEQUENT TO OCTOBER 24, 1940, BUT WERE NOT PAID TIME AND A HALF
EXCEPT FOR HOURS WORKED IN EXCESS OF 44 HOURS PER WEEK.  FN2 

THE WORK OF THE RESPONDENT AND OF ITS EMPLOYEES WAS DONE WITHIN THE
STATE OF MICHIGAN AND, FOR THE MOST PART, ON THE PREMISES OF THE
RESPONDENT'S CUSTOMERS.  IT CONSISTED PRIMARILY OF CLEANING THE WINDOWS
FOR THOSE CUSTOMERS, ALWAYS UNDER CONTRACTS BETWEEN THEM AND THE
RESPONDENT.  THE GREATER PART OF THIS WORK WAS DONE ON WINDOWS ON
PREMISES USED BY RESPONDENT'S CUSTOMERS IN THE PRODUCTION OF GOODS FOR
INTERSTATE COMMERCE.  FN3  UNDER THE CIRCUMSTANCES OF THIS CASE THE
CLEANING OF THE WINDOWS OF INDUSTRIAL PLANTS BY THE EMPLOYEES OF THE
RESPONDENT IS AN OCCUPATION NECESSARY TO THE PRODUCTION OF THE GOODS
PRODUCED IN THOSE PLANTS.  FN4  IF THE SERVICES RENDERED IN THIS CASE
HAD BEEN RENDERED BY EMPLOYEES OF RESPONDENT'S CUSTOMERS ENGAGED IN THE
PRODUCTION OF GOODS FOR INTERSTATE COMMERCE, THOSE EMPLOYEES WOULD HAVE
COME UNDER THE ACT.  RESPONDENT'S EMPLOYEES ARE NOT TO BE EXCLUDED FROM
SUCH COVERAGE MERELY BECAUSE THEIR EMPLOYMENT TO DO THE SAME WORK WAS
UNDER INDEPENDENT CONTRACTS.  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517,
524; WARREN-BRADSHAW CO. V. HALL, 317 U.S. 88, 90. 

THE RESPONDENT WAS ENGAGED ALMOST EXCLUSIVELY IN SERVICING CUSTOMERS
FOR WHOM SUCH SERVICES WERE NECESSARY IN THEIR PRODUCTION OF GOODS FOR
INTERSTATE COMMERCE.  THIS TOOK PLACE IN THE MIDST OF PRODUCING "THE
FLOW OF GOODS IN COMMERCE" INTENDED TO BE COVERED BY THE ACT. 
ACCORDINGLY, THE RESPONDENT CANNOT BE CLASSIFIED AS A "RETAIL OR
SERVICE ESTABLISHMENT" WITHIN THE MEANING OF SEC. 13(A)(2), WHICH
CONTEMPLATES AN ESTABLISHMENT SERVING ULTIMATE CONSUMERS BEYOND THE END
OF SUCH "FLOW OF GOODS IN COMMERCE."  ROLAND ELECTRICAL CO. V. WALLING,
SUPRA. 

THROUGHOUT THIS CASE, THE RESPONDENT HAS URGED AS A DEFENSE THAT, IN
GOOD FAITH AND FROM YEAR TO YEAR, SINCE BEFORE 1939, IT HAS ENTERED
INTO AND RENEWED WRITTEN AGREEMENTS WITH THE LABOR UNION OF WHICH
PETITIONER AND THOSE FOR WHOM THIS SUIT IS BROUGHT WERE MEMBERS.  SOME
OF THESE AGREEMENTS, RENEWED SINCE THE ACT BECAME EFFECTIVE, APPLIED TO
THE PERIODS HERE IN QUESTION AND REQUIRED THE RESPONDENT TO PAY
OVERTIME FOR WORK DONE IN EXCESS OF 44 HOURS A WEEK.  THIS REQUIREMENT
WAS FULLY OBSERVED.  THE DISTRICT COURT MADE A FINDING THAT THE
EXISTENCE AND OBSERVANCE OF SUCH AGREEMENTS CONSTITUTED NO BAR TO THE
RIGHT OF THE EMPLOYEES TO RECOVER UNDER SEC. 16(B) IF THE FAIR LABOR
STANDARDS ACT APPLIED TO THE CASE AND REQUIRED OVERTIME PAY FOR WORK
DONE IN EXCESS OF A LESSER NUMBER OF HOURS PER WEEK THAN WERE
STIPULATED IN THE AGREEMENTS.  IT WAS NOT NECESSARY FOR THE CIRCUIT
COURT OF APPEALS TO CONSIDER THE EFFECT OF THIS AGREEMENT BECAUSE, IN
ITS VIEW, THE ACT DID NOT APPLY TO THE RESPONDENT'S EMPLOYEES. 
HOWEVER, UNDER THE VIEW WHICH WE TAKE, THE RESPONDENT IS ENTITLED TO A
DECISION ON THIS FURTHER DEFENSE.  WE AGREE WITH THE DISTRICT COURT
THAT THE AGREEMENTS CANNOT SUPERSEDE THE ACT AND ARE NOT A BAR TO THIS
ACTION.  CF. BROOKLYN BANK V. O'NEIL, 324 U.S. 697, 707, ET SEQ. 

FOR THESE REASONS, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS
REVERSED AND THIS CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.  REVERSED. 

FN1  "SEC.  16.... 

"(B)  ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 6 OR
AFFECTED IN THE AMOUNT OF THEIR UNPAID MINIMUM WAGES, OR THEIR UNPAID
OVERTIME COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL EQUAL
AMOUNT AS LIQUIDATED DAMAGES.  ACTION TO RECOVER SUCH LIABILITY MAY BE
MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE OR MORE
EMPLOYEES FOR AND IN BEHALF OF HIMSELF OR THEMSELVES AND OTHER
EMPLOYEES SIMILARLY SITUATED, OR SUCH EMPLOYEE OR EMPLOYEES MAY
DESIGNATE AN AGENT OR REPRESENTATIVE TO MAINTAIN SUCH ACTION FOR AND IN
BEHALF OF ALL EMPLOYEES SIMILARLY SITUATED.  THE COURT IN SUCH ACTION
SHALL, IN ADDITION TO ANY JUDGMENT AWARDED TO THE PLAINTIFF OR
PLAINTIFFS, ALLOW A REASONABLE ATTORNEY'S FEE TO BE PAID BY THE
DEFENDANT, AND COSTS OF THE ACTION."  52 STAT. 1069, 29 U.S.C. SEC.
216(B). 

FN2  "SEC.  7.  (A) NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED
IN THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE
OR IN THE PRODUCTION OF GOODS FOR COMMERCE - 

(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION, 

(2)  FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND
YEAR FROM SUCH DATE, OR 

(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, 

UNLESS SUCH EMPLOYEE RECEIVES COMPENSATION FOR HIS EMPLOYMENT IN
EXCESS OF THE HOURS ABOVE SPECIFIED AT A RATE NOT LESS THAN ONE AND ONE
HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED."  52 STAT. 1063,
29 U.S.C. SEC. 207(A). 

THE FAIR LABOR STANDARDS ACT OF 1938 WAS APPROVED JUNE 25, 1938, AND
THIS SECTION BECAME EFFECTIVE OCTOBER 24, 1938.  29 U.S.C. SEC.
207(D). 

FN3  MANY OF THE CUSTOMERS WERE ENGAGED ALSO IN INTERSTATE COMMERCE
ON THOSE PREMISES. 

FN4  "...  AN EMPLOYEE SHALL BE DEEMED TO HAVE BEEN ENGAGED IN THE
PRODUCTION OF GOODS IF SUCH EMPLOYEE WAS EMPLOYED  ...  IN ANY PROCESS
OR OCCUPATION NECESSARY TO THE PRODUCTION THEREOF, IN ANY STATE."  29
U.S.C. SEC. 203(J). 

SEE 100 FACTORY MANAGEMENT AND MAINTENANCE, MARCH 1942, P. 101; 74
ARCHITECTURAL FORUM, MAY 1941, PP. 333, 335; 41 NATIONAL SAFETY NEWS,
MARCH 1940, P. 88; BALDERSTON, KARABASZ AND BRECHT, MANAGEMENT OF AN
ENTERPRISE (1935) P. 145; CONOVER, CLEAN WINDOWS FOR SAFETY, 74 SAFETY
ENGINEERING, SEPT. 1937, PP. 13-14; 63 THE FOUNDRY, AUG. 1935, P. 89;
RANDALL AND MARTIN, MAKING YOUR WINDOWS DELIVER MORE DAYLIGHT, 22
TRANSACTIONS OF THE ILLUMINATING ENGINEERING SOCIETY, MARCH 1927, PP.
239-257. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









KIRBY PETROLEUM CO. V. COMM'R, 326 U.S. 599 


ARGUED NOVEMBER 6, 1945.  - DECIDED JANUARY 28, 1946.  - 148 F.2D 80,
REVERSED - 148 F.2D 776, AFFIRMED. 


A TAXPAYER OWNING FEE SIMPLE TITLE TO CERTAIN LANDS LEASED THE LANDS
FOR THE PRODUCTION OF OIL, GAS AND OTHER MINERALS FOR A CASH BONUS, A
ROYALTY IN THE USUAL FORM AND A SHARE OF THE NET PROFITS REALIZED BY
THE LESSEES FROM THEIR OPERATIONS UNDER THE LEASE.  HELD: 

1.  THE TAXPAYER IS ENTITLED TO DEDUCT THE DEPLETION ALLOWANCE
PERMITTED UNDER SECS. 23(M) AND 114(B)(3) OF THE INTERNAL REVENUE CODE
FROM HIS SHARE OF THE NET PROFITS FROM THE OIL EXTRACTED FROM THE
LEASED LANDS, AS WELL AS FROM THE INCOME DERIVED FROM BONUSES AND
ROYALTIES.  PP. 600, 607. 

2.  SINCE THE "NET PROFIT" PAYMENTS FLOW DIRECTLY FROM THE LESSOR'S
ECONOMIC INTEREST IN THE OIL AND PARTAKE OF THE QUALITY OF RENT RATHER
THAN OF A SALE PRICE, THE CAPITAL INVESTMENT OF THE LESSOR IS REDUCED
BY THE EXTRACTION OF THE OIL AND THE LESSOR IS ENTITLED TO DEPLETION. 
HELVERING V. O'DONNELL, 303 U.S. 370; HELVERING V. ELBE OIL LAND
DEVELOPMENT CO., 303 U.S. 372, AND ANDERSON V. HELVERING, 310 U.S. 404,
DIFFERENTIATED.  PP. 605, 606. 

3.  THE LESSOR'S ECONOMIC INTEREST IN THE OIL IS NO LESS WHEN HIS
RIGHT IS TO SHARE A NET PROFIT FROM ITS SALE THAN WHEN IT IS TO SHARE
THE GROSS RECEIPTS.  P. 604. 

KIRBY PETROLEUM CO. V. COMMISSIONER OF INTERNAL REVENUE. 

NO. 56.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH
CIRCUIT.* 

*TOGETHER WITH NO. 197, COMMISSIONER OF INTERNAL REVENUE V. CRAWFORD,
ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT,
ARGUED NOVEMBER 6, 7, 1945. 

NO. 56.  CERTIORARI, 325 U.S. 845, TO REVIEW A JUDGMENT REVERSING A
DECISION OF THE TAX COURT, 2 T.C. 1258. 

NO. 197.  CERTIORARI, POST, P. 703, TO REVIEW A JUDGMENT AFFIRMING A
DECISION OF THE TAX COURT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE WRIT OF CERTIORARI IN KIRBY PETROLEUM CO. V. COMMISSIONER BRINGS
HERE FOR REVIEW THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS FOR THE
FIFTH CIRCUIT, 148 F.2D 80, REVERSING THE DECISION OF THE TAX COURT, 2
T.C. 1258, WHICH HAD SUSTAINED THE TAXPAYER'S POSITION.  THE NARROW
ISSUE IS THE DEDUCTIBILITY UNDER SECTIONS 23(M) AND 114(B)(3)  FN1  OF
THE INTERNAL REVENUE CODE OF THE DEPLETION ALLOWANCE OF 27 1/2 PER
CENTUM OF GROSS INCOME FROM THE PROPERTY DURING THE TAXABLE YEAR,
PERMITTED BY THOSE SECTIONS FROM THE TAXPAYER'S GROSS INCOME FOR 1940
FROM CERTAIN OIL LEASES. 

THE TAXPAYER OWNED THE FEE SIMPLE TITLE TO CERTAIN TEXAS LANDS,
EXCEPT FOR A MINOR MINERAL INTEREST WHICH IS NOT HERE INVOLVED.  IT
LEASED THE LANDS TO TWO COMPANIES FOR THE PRODUCTION OF OIL, GAS AND
OTHER MINERALS FOR A CASH BONUS, A ROYALTY IN THE USUAL FORM AND AN
AGREEMENT, EXECUTED CONTEMPORANEOUSLY WITH THE LEASE AND AS PART
CONSIDERATION THEREFOR, THAT THE TAXPAYER SHOULD RECEIVE TWENTY PER
CENT OF THE NET MONEY PROFITS REALIZED BY THE LESSEES FROM THEIR
OPERATIONS UNDER THE LEASE. 

THE SAME NARROW ISSUE IS IN COMMISSIONER V. CRAWFORD.  IN THIS LATTER
CASE, THE TAXPAYER OWNED AN INTEREST IN FEE IN CERTAIN REAL ESTATE IN
CALIFORNIA.  SHE, TOGETHER WITH HER CO-OWNERS, ENTERED INTO SEVERAL
LEASES FOR PORTIONS OF THE PROPERTY FOR THE PRODUCTION OF OIL, GAS AND
OTHER MINERALS.  FOR AN UNDERSTANDING OF THE ISSUES HERE PRESENTED, IT
IS UNNECESSARY TO ANALYZE THE LEASES FURTHER THAN TO SAY THAT THEY WERE
GIVEN IN CONSIDERATION OF BONUSES, ROYALTIES IN THE USUAL FORM AND
ADDITIONAL PAYMENTS FROM THE NET PROFITS OF THE OPERATION.  FN2  THE
COMMISSIONER ASSESSED A DEFICIENCY BECAUSE OF THE DENIAL OF A CLAIMED
DEPLETION ALLOWANCE FOR 1938, 1939 AND 1940.  THE TAX COURT SUPPORTED
THE TAXPAYER'S POSITION.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  148
F.2D 776. 

IN BOTH CASES, THE COMMISSIONER CONCEDES THAT THE DEPLETION ALLOWANCE
OF SECS. 23(M) AND 114(B)(3) IS APPLICABLE TO THE BONUSES AND
ROYALTIES.  FN3  THE STATUTORY PROVISIONS ARE IDENTICAL FOR ALL YEARS. 
THE 27 1/2 PER CENTUM ALLOWED BY SEC. 114(B)(3) WAS THEREFORE PROPERLY
DEDUCTED BY THE TAXPAYERS FROM THESE BONUSES AND ROYALTIES.  IN EACH OF
THESE YEARS THERE WAS ALSO INCOME TO THESE TAXPAYERS FROM THE LEASE
PROVISIONS FOR THE LESSORS TO SHARE IN THE NET PROFITS FROM THE OIL
EXTRACTED FROM THE LEASED LANDS.  THE TAXPAYERS CLAIM THE RIGHT TO
DEDUCT THE 27 1/2 PER CENT DEPLETION FROM THESE RECEIPTS ALSO.  THESE
ARE THE DEDUCTIONS WHICH THE COMMISSIONER DISALLOWED.  ON ACCOUNT OF
THE CONFLICTING DECISIONS OF THE CIRCUITS IN THESE CASES ON THE POINT,
CERTIORARI WAS GRANTED BY US.  325 U.S. 845; 326 U.S. 703. 

THE PRESENT PROVISIONS FOR DEPLETION ALLOWANCES HAVE BEEN WORKED OUT
SO AS TO GIVE THE HOLDER OF AN ECONOMIC INTEREST IN THE OIL OR OTHER
NATURAL RESOURCE AN ALLOWANCE FOR DEPLETION.  FN4  WHILE THERE ARE
INCOME INCIDENTS TO THE UTILIZATION OF NATURAL RESOURCES, THERE IS ALSO
AN OBVIOUS EXHAUSTION OF THE CAPITAL USED TO PRODUCE THE INCOME.  IN
THEORY THE AGGREGATE SUM ALLOWED FOR DEPLETION WOULD EQUAL THE VALUE OF
THE NATURAL RESOURCE AT THE TIME OF ITS ACQUISITION BY THE TAXPAYER, SO
THAT AT THE EXHAUSTION OF THE RESOURCE THE TAXPAYER WOULD HAVE
RECOVERED THROUGH DEPLETION EXACTLY HIS INVESTMENT.  THE ADMINISTRATIVE
DIFFICULTIES IN TAXATION OF OIL AND GAS PRODUCTION IN VIEW OF THE
UNCERTAINTIES OF QUANTITIES AND TIME OF ACQUISITION, THAT IS AT THE
PURCHASE OF THE PROPERTY OR AT THE DISCOVERY OF OIL OR GAS, FINALLY
HAVE BROUGHT CONGRESS TO THE ARBITRARY ALLOWANCE OF 27 1/2 PER CENT NOW
EMBODIED IN SEC. 114(B)(3).  FN5  THUS, THE 27 1/2 PER CENT IS
APPROPRIATED BY THE STATUTE TO THE RESTORATION OF THE TAXPAYER'S
CAPITAL AND THE REST OF THE PROCEEDS OF THE NATURAL ASSET BECOMES GROSS
INCOME.  ANDERSON V. HELVERING, 310 U.S. 404, 407-8.  IT FOLLOWS FROM
THIS THEORY THAT ONLY A TAXPAYER WITH AN ECONOMIC INTEREST IN THE
ASSET, HERE THE OIL, IS ENTITLED TO THE DEPLETION.  PALMER V. BENDER,
287 U.S. 551, 557; THOMAS V. PERKINS, 301 U.S. 655, 659.  BY THIS IS
MEANT ONLY THAT UNDER HIS CONTRACT HE MUST LOOK TO THE OIL IN PLACE AS
THE SOURCE OF THE RETURN OF HIS CAPITAL INVESTMENT.  THE TECHNICAL
TITLE TO THE OIL IN PLACE IS NOT IMPORTANT.  TITLE IN A CASE OF A LEASE
MAY DEPEND UPON THE LAW OF THE STATE IN WHICH THE DEPOSIT LIES.  BURNET
V. HARMEL, 287 U.S. 103, 109-10.  THE TEST OF THE RIGHT TO DEPLETION IS
WHETHER THE TAXPAYER HAS A CAPITAL INVESTMENT IN THE OIL IN PLACE WHICH
IS NECESSARILY REDUCED AS THE OIL IS EXTRACTED.  SEE ANDERSON V.
HELVERING, 310 U.S. 404, 407. 

THE TAXPAYERS HERE INVOLVED WERE LESSORS.  UNDER THE LEASES AND OUR
PREVIOUS DECISIONS, THESE TAXPAYERS HAD AN ECONOMIC INTEREST, A CAPITAL
INVESTMENT, IN SO MUCH OF THE EXTRACTED OIL AS WAS USED BY THE LESSEE
TO PAY TO THE TAXPAYERS THE ROYALTIES AND BONUSES.  SEE NOTE 3, SUPRA.
THE TAXPAYER LESSORS WERE ENTITLED TO THE DEPLETION ALLOWANCE ON THESE
ROYALTIES AND BONUSES WHETHER THEY WERE PAID TO THEM IN OIL OR CASH,
THE PROCEEDS OF THE OIL.  HELVERING V. TWIN BELL OIL SYNDICATE, 293
U.S. 312, 321. 

IF THE ADDITIONAL PAYMENT IN THESE LEASES HAD BEEN A PORTION OF THE
GROSS RECEIPTS FROM THE SALE OF THE OIL EXTRACTED BY THE LESSEES
INSTEAD OF A PORTION OF THE NET PROFITS, THERE WOULD HAVE BEEN NO DOUBT
AS TO THE ECONOMIC INTEREST OF THE LESSORS IN SUCH OIL.  THIS WOULD BE
AN OIL ROYALTY.  THE LESSORS' ECONOMIC INTEREST IN THE OIL IS NO LESS
WHEN THEIR RIGHT IS TO SHARE A NET PROFIT.  AS IN THOMAS V. PERKINS,
301 U.S. 655, THEIR ONLY SOURCE OF PAYMENT IS FROM THE NET PROFIT WHICH
THE OIL PRODUCES.  IN BOTH SITUATIONS THE LESSORS' POSSIBILITY OF
RETURN DEPENDS UPON OIL EXTRACTION AND ENDS WITH THE EXHAUSTION OF THE
SUPPLY.  ECONOMIC INTEREST DOES NOT MEAN TITLE TO THE OIL IN PLACE BUT
THE POSSIBILITY OF PROFIT FROM THAT ECONOMIC INTEREST DEPENDENT SOLELY
UPON THE EXTRACTION AND SALE OF THE OIL.  FN6 

THE DEPLETION ALLOWANCE, IN THE AGGREGATE, IS ALWAYS THE SAME AMOUNT,
27 1/2 PER CENTUM OF THE "GROSS INCOME FROM THE PROPERTY."  FN7  IN THE
CASE OF LEASES THE DEDUCTIONS SHALL BE EQUITABLY APPORTIONED BETWEEN
THE LESSOR AND LESSEE."  SEC. 23(M).  AN EQUITABLE APPORTIONMENT IS
OBTAINED BY EXCLUDING FROM THE LESSEE'S GROSS INCOME FROM OIL OR GAS
PRODUCED FROM THE PROPERTY, HELVERING V. TWIN BELL OIL SYNDICATE,
SUPRA, 321, "AN AMOUNT EQUAL TO ANY RENTS OR ROYALTIES PAID OR INCURRED
BY THE TAXPAYER IN RESPECT OF THE PROPERTY."  SEC. 114(B)(3).  FN8
SUCH DEDUCTIONS BECOME THE GROSS INCOME OF THE LESSOR.  WE THINK THESE
TAXPAYERS HAD AN ECONOMIC INTEREST IN THE OIL, SUFFICIENT TO SUPPORT
DEPLETION ON THE SUMS RECEIVED AS NET PROFIT. 

IF WE ASSUME THAT THE ONLY PAYMENT FOR THE PRIVILEGE OF OIL
EXTRACTION MADE TO THE TAXPAYER LESSORS BY THE LESSEES WAS THE PORTION
OF "NET INCOME" PAID UNDER THE LEASES, IT WOULD BE CLEAR THAT SUCH
PAYMENT OF "NET INCOME" WOULD TAXWISE BE RENT OR ROYALTY PAID BY THE
LESSEES FOR THE PRIVILEGE OF EXTRACTION.  SINCE SEC. 114(B)(3) WOULD
REQUIRE THE LESSEES TO DEDUCT THIS RENT OR ROYALTY FROM THEIR GROSS
INCOMES FROM THE SALE OF OIL FROM THE PROPERTY BEFORE TAKING THE
LESSEES' DEPLETION, A GROSS RECEIPT FROM OIL SOLD, EQUAL TO THE AMOUNT
OF THE "NET INCOME" PAID TO THE TAXPAYER LESSORS, WOULD NOT BE SUBJECT
TO DEPLETION, UNLESS THE TAXPAYER LESSORS ARE PERMITTED TO APPLY
DEPLETION TO THIS PAYMENT.  THIS WOULD BE CONTRARY TO THE PURPOSE OF
THE DEPLETION STATUTE, WHICH IS TO ALLOW TO THE LESSOR AND LESSEE
TOGETHER A DEPLETION OF 27 1/2 PER CENT OF THE GROSS SALE PRICE OF THE
OIL.  ON THE OTHER HAND IF DEPLETION ON THE "NET INCOME" PAYMENTS IS
ALLOWED TO THE LESSORS, THE LESSEES ARE ALLOWED DEPLETION ON THE GROSS
INCOME FROM OIL SALES LESS THE NET INCOME PAYMENT AND THE ENTIRE
ALLOWABLE DEPLETION IS ALLOCATED BETWEEN THE LESSORS AND LESSEES. 

REFERENCE IS MADE TO A SENTENCE IN ANDERSON V. HELVERING, 310 U.S.
404, 409, AS INDICATING THAT THIS COURT HAD DETERMINED THAT "NET
PROFIT" PAYMENTS WERE NOT SUBJECT TO DEPLETION.  IT READS AS FOLLOWS: 

"A SHARE IN THE NET PROFITS DERIVED FROM DEVELOPMENT AND OPERATION,
ON THE CONTRARY, DOES NOT ENTITLE THE HOLDER OF SUCH INTEREST TO A
DEPLETION ALLOWANCE EVEN THOUGH CONTINUED PRODUCTION IS ESSENTIAL TO
THE REALIZATION OF SUCH PROFITS." 

THE ANDERSON CASE INVOLVED THE TAXABILITY TO THE OIL OPERATOR OF THE
GROSS PROCEEDS OF THE OIL, WHICH HIS CONTRACT FOR THE PURCHASE OF THE
OIL PROPERTY REQUIRED HIM TO TURN OVER TO THE SELLER AS A MEANS OF
SATISFYING A DEFERRED PAYMENT FOR THE PROPERTY.  AS THE DEFERRED
PAYMENT ALSO HAD TO BE SATISFIED OUT OF ANY SALE OF THE FEE SIMPLE
TITLE TO THE LAND, WE HELD THE OPERATOR LIABLE AS A PURCHASER BECAUSE
THE SELLER WAS NOT "ENTIRELY DEPENDENT" UPON THE OIL PRODUCTION FOR HIS
PURCHASE PRICE.  THIS GAVE THE OPERATOR THE BENEFIT OF THE APPLICABLE
DEPLETION.  PAGE 413.  ONLY THE RESERVATION OF AN INTEREST IN THE FEE
DIFFERENTIATED THE ANDERSON CASE FROM THOMAS V. PERKINS, 301 U.S. 655,
WHERE DEFERRED PAYMENT IN OIL OR ITS PROCEEDS, PAYABLE ONLY FROM
PRODUCTION, WAS HELD SUBJECT TO DEPLETION WHEN PAID TO THE ASSIGNORS. 

THE PART JUST QUOTED FROM THE ANDERSON CASE OCCURS IN SETTING OUT THE
SERIES OF CASES DEALING WITH DEPLETION.  NO NET INCOME WAS INVOLVED IN
THE ANDERSON CASE.  THE STATEMENT WAS SUPPORTED BY THE CITATION OF
HELVERING V. O'DONNELL, 303 U.S. 370, AND HELVERING V. ELBE OIL LAND
CO., 303 U.S. 372.  IN THE O'DONNELL CASE, THE TAXPAYER, WHO RECEIVED
THE "NET INCOME" FROM AN OIL OPERATION, WAS A STRANGER TO THE LEASE,
WHO HAD CONTRACTED FOR A SHARE OF ITS NET PROFITS AS CONSIDERATION FOR
HIS STOCK IN A CORPORATION WHICH WAS THE OWNER OF THE LEASE.  "THE
QUESTION IS WHETHER RESPONDENT HAD AN INTEREST, THAT IS, A CAPITAL
INVESTMENT, IN THE OIL AND GAS IN PLACE ....  AS A MERE OWNER OF SHARES
IN THE SAN GABRIEL COMPANY, RESPONDENT HAD NO SUCH INTEREST."  PAGE
371.  IN THE ELBE OIL LAND CASE, THERE WAS A SPECIFIC PROVISION THAT
CONSIDERATION OTHER THAN THE "NET PROFIT" PAYMENT SHOULD RESULT IN
"FULL OWNERSHIP" TO THE BUYER.  THE TRANSACTION WHICH INCLUDED THE
CLAUSE FOR "NET PROFIT" WAS A SALE OF ALL THE RIGHT, TITLE AND INTEREST
IN THE PROPERTY, WHICH CONSISTED OF TANGIBLE PERSONALTY AND DRILLING
PERMITS, AGREEMENTS, AND LEASES.  THIS COURT SAID THE ADDITIONAL
PAYMENT OF A SHARE OF NET PROFITS DID NOT QUALIFY "IN ANY WAY THE
EFFECT OF THE TRANSACTION AS AN ABSOLUTE SALE."  PAGE 375.  THUS THE
ANDERSON CASE CORRECTLY STATED THAT A SHARE IN "NET PROFITS,"
DISASSOCIATED FROM AN ECONOMIC INTEREST, DOES NOT ENTITLE THE HOLDER TO
A DEPLETION ALLOWANCE.  THE FACTS OF EACH TRANSACTION MUST BE APPRAISED
TO DETERMINE WHETHER THE TRANSFEROR HAS MADE AN ABSOLUTE SALE OR HAS
RETAINED AN ECONOMIC INTEREST - A CAPITAL INVESTMENT. 

IN OUR VIEW, THE "NET PROFIT" PAYMENTS IN THESE CASES FLOW DIRECTLY
FROM THE TAXPAYERS' ECONOMIC INTEREST IN THE OIL AND PARTAKE OF THE
QUALITY OF RENT RATHER THAN OF A SALE PRICE.  THEREFORE, THE CAPITAL
INVESTMENT OF THE LESSORS IS REDUCED BY THE EXTRACTION OF THE OIL AND
THE LESSORS SHOULD HAVE DEPLETION.  NO. 56 IS REVERSED.  NO. 197 IS
AFFIRMED. 

FN1  INTERNAL REVENUE CODE: 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     .         .         .   .         . 

"(M)  DEPLETION.  - IN THE CASE OF MINES, OIL AND GAS WELLS, OTHER
NATURAL DEPOSITS, AND TIMBER, A REASONABLE ALLOWANCE FOR DEPLETION AND
FOR DEPRECIATION OF IMPROVEMENTS, ACCORDING TO THE PECULIAR CONDITIONS
IN EACH CASE; SUCH REASONABLE ALLOWANCE IN ALL CASES TO BE MADE UNDER
RULES AND REGULATIONS TO BE PRESCRIBED BY THE COMMISSIONER, WITH THE
APPROVAL OF THE SECRETARY  ....  IN THE CASE OF LEASES THE DEDUCTIONS
SHALL BE EQUITABLY APPORTIONED BETWEEN THE LESSOR AND LESSEE ...." 

"SEC. 114.  BASIS FOR DEPRECIATION AND DEPLETION. 

.         .         .         .         . 

"(B)  BASIS FOR DEPLETION.  - 

     .         .         .         .   . 

"(3)  PERCENTAGE DEPLETION FOR OIL AND GAS WELLS.  - IN THE CASE OF
OIL AND GAS WELLS THE ALLOWANCE FOR DEPLETION UNDER SECTION 23(M) SHALL
BE 27 1/2 PER CENTUM OF THE GROSS INCOME FROM THE PROPERTY DURING THE
TAXABLE YEAR, EXCLUDING FROM SUCH GROSS INCOME AN AMOUNT EQUAL TO ANY
RENTS OR ROYALTIES PAID OR INCURRED BY THE TAXPAYER IN RESPECT OF THE
PROPERTY  ...." 

FN2  THE FOLLOWING CLAUSE OF ONE LEASE WILL ILLUSTRATE THE TYPE OF
ARRANGEMENT WHICH PRODUCED THE ADDITIONAL PAYMENTS:    "WHEN, AND AS
SOON AS THE 'INCOME CREDITS' OF SAID ACCOUNT SHALL EXCEED THE
'OPERATING CHARGES' OF THE LESSEE, THE LESSOR SHALL BE ENTITLED TO A
SECONDARY AND ADDITIONAL ROYALTY, THE AMOUNT THEREOF TO BE ONE-HALF OF
SUCH DIFFERENCE BETWEEN THE 'OPERATING CHARGES' AND 'INCOME CREDITS' OF
SAID ACCOUNT."  THE LEASES DEFINED METHODS OF COMPUTATION. 

FN3  BURNET V. HARMEL, 287 U.S. 103, 111; PALMER V. BENDER, 287 U.S.
551, 557.  SEE ANDERSON V. HELVERING, 310 U.S. 404, 409. 

FN4  TREASURY REGULATIONS 103, SEC. 19.23(M)-1, AS AMENDED BY T.D.
5413, 1944 CUM. BULL.  124, 129:    "UNDER SUCH PROVISIONS, THE OWNER
OF AN ECONOMIC INTEREST IN MINERAL DEPOSITS OR STANDING TIMBER IS
ALLOWED ANNUAL DEPLETION DEDUCTIONS.  AN ECONOMIC INTEREST IS POSSESSED
IN EVERY CASE IN WHICH THE TAXPAYER HAS ACQUIRED, BY INVESTMENT, ANY
INTEREST IN MINERAL IN PLACE OR STANDING TIMBER AND SECURES, BY ANY
FORM OF LEGAL RELATIONSHIP, INCOME DERIVED FROM THE SEVERANCE AND SALE
OF THE MINERAL OR TIMBER, TO WHICH HE MUST LOOK FOR A RETURN OF HIS
CAPITAL.  BUT A PERSON WHO HAS NO CAPITAL INVESTMENT IN THE MINERAL
DEPOSIT OR STANDING TIMBER DOES NOT POSSESS AN ECONOMIC INTEREST MERELY
BECAUSE, THROUGH A CONTRACTUAL RELATION TO THE OWNER, HE POSSESSES A
MERE ECONOMIC ADVANTAGE DERIVED FROM PRODUCTION.  THUS, AN AGREEMENT
BETWEEN THE OWNER OF AN ECONOMIC INTEREST AND ANOTHER ENTITLING THE
LATTER TO PURCHASE THE PRODUCT UPON PRODUCTION OR TO SHARE IN THE NET
INCOME DERIVED FROM THE INTEREST OF SUCH OWNER DOES NOT CONVEY A
DEPLETABLE ECONOMIC INTEREST." 

FN5  FOR THE BACKGROUND OF THE PRESENT PROVISIONS, SEE HELVERING V.
TWIN BELL OIL SYNDICATE, 293 U.S. 312. 

FN6  WHILE THE RESERVATION OF ROYALTIES SHOWS AN ECONOMIC INTEREST IN
THE OIL NECESSARY FOR THE SATISFACTION OF THE ROYALTIES, SUCH
RESERVATION WOULD NOT SHOW AN ECONOMIC INTEREST IN OIL NOT NECESSARY
FOR THE PAYMENT OF THE ROYALTIES.  BUT SEE ESTATE OF JAPHET, 3 T.C.
86. 

FN7  SEC. 114(B)(3).  THE GROSS INCOME REFERS ONLY TO OIL AND GAS. 
HELVERING V. TWIN BELL OIL SYNDICATE, 293 U.S. 312, 320-21; ANDERSON V.
HELVERING, 310 U.S. 404, 408. 

FN8  SEE HELVERING V. TWIN BELL OIL SYNDICATE, 293 U.S. 312, 322. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :












BOLLENBACH V. UNITED STATES, 326 U.S. 607 


NO. 41.  ARGUED OCTOBER 12, 15, 1945.  - DECIDED JANUARY 28, 1946.  -
147 F.2D 199, REVERSED. 


1.  IN A PROSECUTION FOR CONSPIRACY TO COMMIT AN OFFENSE UNDER THE
NATIONAL STOLEN PROPERTY ACT, AN INSTRUCTION TO THE JURY THAT THE
POSSESSION OF PROPERTY SHORTLY AFTER IT HAD BEEN STOLEN IN ANOTHER
STATE CREATED A PRESUMPTION THAT THE POSSESSOR HAD TRANSPORTED THE
PROPERTY IN INTERSTATE COMMERCE CONSTITUTED REVERSIBLE ERROR.  PP. 609,
611, 613. 

2.  THE MANIFEST MISDIRECTION IN THE CIRCUMSTANCES OF THIS CASE CAN
NOT BE TREATED AS A "TECHNICAL ERROR" NOT AFFECTING THE DEFENDANT'S
SUBSTANTIAL RIGHTS.  P. 614. 

3.  UNDER THE CRIMINAL CODE, ONE WHO AIDS OR ABETS THE COMMISSION OF
A FEDERAL OFFENSE IS PUNISHABLE AS A PRINCIPAL; THE OFFENSE OF AN
ACCESSORY AFTER THE FACT IS DISTINCT AND DIFFERENTLY PUNISHABLE.  P.
611. 

4.  A CONVICTION OUGHT NOT TO REST ON AN EQUIVOCAL DIRECTION TO THE
JURY ON A BASIC ISSUE.  P. 613. 

5.  UPON REVIEW OF A CONVICTION IN THE FEDERAL COURTS, THE QUESTION
IS NOT WHETHER GUILT MAY BE SPELT OUT OF THE RECORD, BUT WHETHER GUILT
HAS BEEN FOUND BY THE JURY ACCORDING TO THE PROCEDURE AND STANDARDS
APPROPRIATE FOR CRIMINAL TRIALS IN THE FEDERAL COURTS.  P. 614. 

6.  IN VIEW OF THE IMPORTANT PLACE OF TRIAL BY JURY IN THE BILL OF
RIGHTS, CONGRESS WILL NOT BE DEEMED TO HAVE INTENDED TO SUBSTITUTE THE
BELIEF OF APPELLATE JUDGES IN THE GUILT OF AN ACCUSED, HOWEVER
JUSTIFIABLY ENGENDERED BY THE RECORD, FOR ASCERTAINMENT OF GUILT BY A
JURY UNDER APPROPRIATE JUDICIAL GUIDANCE, HOWEVER CUMBERSOME THAT
PROCESS MAY BE.  P. 615. 

BOLLENBACH V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 324 U.S. 837, TO REVIEW THE AFFIRMANCE OF A CONVICTION OF
CONSPIRACY TO COMMIT AN OFFENSE UNDER THE NATIONAL STOLEN PROPERTY
ACT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED OF CONSPIRING TO VIOLATE THE NATIONAL
STOLEN PROPERTY ACT.  THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT SUSTAINED THE CONVICTION.  147 F.2D 199.  WE BROUGHT THE CASE
HERE, 324 U.S. 837, BECAUSE IT WAS SUBMITTED TO THE JURY IN A WAY THAT
RAISED AN IMPORTANT QUESTION IN THE ADMINISTRATION OF FEDERAL CRIMINAL
JUSTICE. 

THE RELEVANT FACTS UPON WHICH DECISION MUST TURN ARE THESE. 
BOLLENBACH, THE PETITIONER, AND OTHERS WERE INDICTED UPON TWO COUNTS:
FOR TRANSPORTING SECURITIES IN INTERSTATE COMMERCE KNOWING THEM TO HAVE
BEEN STOLEN (48 STAT. 794, 18 U.S.C. SEC. 415; 35 STAT. 1152, 18 U.S.C.
SEC. 550) AND FOR CONSPIRING TO COMMIT THAT OFFENSE (35 STAT. 1096, 18
U.S.C. SEC. 88).  HAVING BEEN GRANTED A SEVERANCE, BOLLENBACH WAS TRIED
SEPARATELY.  NO DOUBT THE SECURITIES HAD BEEN STOLEN IN MINNEAPOLIS AND
WERE TRANSPORTED TO NEW YORK.  AND IT IS NOT CONTROVERTED THAT
BOLLENBACH HELPED TO DISPOSE OF THEM IN NEW YORK. 

THE QUESTION IS WHETHER HE WAS PROPERLY CONVICTED UNDER THE
INDICTMENT.  THE TRIAL LASTED SEVEN DAYS.  AFTER THE JURY HAD BEEN OUT
SEVEN HOURS THEY RETURNED TO THE COURT TO REPORT THAT THEY WERE
"HOPELESSLY DEADLOCKED."  INTERCHANGES THEN ENSUED BETWEEN COURT AND
JURY AND BETWEEN COURT AND COUNSEL.  ONE OF THE JURORS ASKED "CAN ANY
ACT OF CONSPIRACY BE PERFORMED AFTER THE CRIME IS COMMITTED?"  THE
TRIAL JUDGE MADE SOME UNRESPONSIVE COMMENTS BUT FAILED TO ANSWER THE
QUESTION.  NO EXCEPTION WAS NOTED IMMEDIATELY.  IN A FEW MINUTES THE
JURY LEFT, BUT AFTER TWENTY MINUTES AGAIN RETURNED FOR FURTHER
INSTRUCTIONS.  BOLLENBACH'S COUNSEL THEN INDICATED THAT THE COURT HAD
LEFT THE BENCH TOO HURRIEDLY TO ENABLE HIM TO EXCEPT TO THE JUDGE'S
FAILURE TO ANSWER THE QUESTION.  AFTER AN EXCEPTION WAS THEN TAKEN AND
ALLOWED, THE JUDGE "MISTAKENLY REPLIED," AS THE LOWER COURT NOTED,
"THAT HE HAD ALREADY TOLD THEM THAT THERE COULD BE NO CONSPIRACY AFTER
THE OBJECT OF THE CONSPIRACY HAD BEEN ATTAINED." 

AFTER INDULGING IN FURTHER COLLOQUY WITH COUNSEL, NOT HERE PERTINENT,
THE JUDGE STATED THAT HE HAD THIS NOTE OF INQUIRY FROM THE JURY:  "IF
THE DEFENDANT WERE AWARE THAT THE BONDS WHICH HE AIDED IN DISPOSING OF
WERE STOLEN DOES THAT KNOWLEDGE MAKE HIM GUILTY ON THE SECOND COUNT." 
IN ANSWER THE JUDGE INSTRUCTED THE JURY AS FOLLOWS:  "OF COURSE IF IT
OCCURRED AFTERWARDS IT WOULD NOT MAKE HIM GUILTY, BUT IN THAT
CONNECTION I SAY TO YOU THAT IF THE POSSESSION WAS SHORTLY AFTER THE
BONDS WERE STOLEN, AFTER THE THEFT, IT IS SUFFICIENT TO JUSTIFY THE
CONCLUSION BY YOU JURORS OF KNOWLEDGE BY THE POSSESSOR THAT THE
PROPERTY WAS STOLEN.  AND, JUST A MOMENT - I FURTHER CHARGE YOU THAT
POSSESSION OF STOLEN PROPERTY IN ANOTHER STATE THAN THAT IN WHICH IT
WAS STOLEN SHORTLY AFTER THE THEFT RAISES A PRESUMPTION THAT THE
POSSESSOR WAS THE THIEF AND TRANSPORTED STOLEN PROPERTY IN INTERSTATE
COMMERCE, BUT THAT SUCH PRESUMPTION IS SUBJECT TO EXPLANATION AND MUST
BE CONSIDERED WITH ALL THE TESTIMONY IN THE CASE."  COUNSEL FOR THE
ACCUSED EXCEPTED TO THIS CHARGE, BUT THE JUDGE CUT SHORT AN ATTEMPTED
REQUEST BY COUNSEL WITH THE REMARK, "YOU MAY EXCEPT TO THE CHARGE, BUT
I WILL NOT TAKE ANY REQUESTS."  THE JURY FILED OUT AND RETURNED FIVE
MINUTES LATER WITH A VERDICT OF GUILTY ON THE SECOND - THE CONSPIRACY -
COUNT.  A SENTENCE OF TWO YEARS AND A FINE OF $10,000 WERE IMPOSED. 
THE CIRCUIT COURT OF APPEALS REVERSED THE JUDGMENT AND ORDERED A NEW
TRIAL.  IT FOUND ERROR IN THE CHARGE JUST QUOTED.  "CERTAINLY IT IS
UNTENABLE TO SAY," WAS THE CRUX OF ITS HOLDING, "THAT THE POSSESSION OF
STOLEN GOODS RAISES ANY PRESUMPTION THAT THEY HAVE IN FACT BEEN
TRANSPORTED IN INTERSTATE COMMERCE."  147 F.2D 199, 202.  AND IT HELD
THAT IT COULD NOT DISREGARD THE ERROR BECAUSE OF THE QUESTIONABLE
EVIDENCE AS TO WHETHER THE ACCUSED KNEW THAT THE BONDS HAD COME FROM
ANOTHER STATE.  BUT ON REHEARING THE COURT'S ATTENTION WAS CALLED TO
THE FACT THAT, AFTER HIS ARREST, THE ACCUSED ADMITTED THAT HE KNEW THAT
THE BONDS HAD COME FROM THE WEST AND THAT HE MAY HAVE HAD THAT
KNOWLEDGE BEFORE HE DISPOSED OF THEM.  ON FURTHER CONSIDERATION OF THE
BEARING OF THIS EVIDENCE UPON THE DEFENDANT'S KNOWLEDGE OF THE PLACE OF
THE THEFT, THE CIRCUIT COURT OF APPEALS CHANGED ITS VIEW AND HELD THAT
"IT WOULD BE ALTOGETHER UNWARRANTED TO REVERSE THE JUDGMENT BECAUSE OF
THE MISTAKE IN THE CHARGE."  147 F.2D AT 202. 

THAT COURT EVIDENTLY FELT FREE TO DISREGARD "THE MISTAKE IN THE
CHARGE" ONLY ON ITS ASSUMPTION THAT BOLLENBACH COULD BE CONVICTED UNDER
THIS INDICTMENT AS AN ACCESSORY AFTER THE FACT.  BUT BOLLENBACH WAS
NEITHER CHARGED NOR TRIED NOR CONVICTED AS AN ACCESSORY AFTER THE
FACT.  THE GOVERNMENT DID NOT INVOKE THAT THEORY IN THE TWO LOWER
COURTS AND DISAVOWS IT HERE.  AND RIGHTLY SO.  THE RECEIPT OF STOLEN
SECURITIES AFTER THEIR TRANSPORTATION ACROSS STATE LINES WAS NOT A
FEDERAL CRIME AT THE TIME OF THE TRANSACTIONS IN QUESTION, AND WE NEED
NOT CONSIDER THE SCOPE OF A LATER AMENDMENT MAKING IT SO.  SEE ACT OF
AUGUST 3, 1939, 53 STAT. 1178, 18 U.S.C. SEC. 416; H.R. REP. 422, 76TH
CONG., 1ST SESS. (1939); AND S. REP. 674, 76TH CONG., 1ST SESS.
(1939).  BOLLENBACH COULD NOT PROPERLY BE CONVICTED FOR THE OFFENSE FOR
WHICH HE WAS CHARGED AND FOR WHICH HE WAS CONVICTED, NAMELY, FOR HAVING
CONSPIRED TO TRANSPORT SECURITIES ACROSS STATE LINES MERELY ON PROOF
THAT HE WAS A "FENCE," I.E., HELPED TO DISPOSE OF THE STOLEN SECURITIES
AFTER THE INTERSTATE TRANSPORTATION WAS CONCLUDED.  WHILE SEC. 332 OF
THE CRIMINAL CODE, SUPRA, MADE AIDERS AND ABETTORS OF AN OFFENSE
PRINCIPALS, CONGRESS HAS NOT MADE ACCESSORIES AFTER THE FACT
PRINCIPALS.  THEIR OFFENSE IS DISTINCT AND IS DIFFERENTLY PUNISHED. 
(SEC. 333 OF THE CRIMINAL CODE, 35 STAT. 1152, 18 U.S.C. SEC. 551.) 

WE ARE THEREFORE THROWN BACK UPON AN APPRAISAL OF WHAT THE CIRCUIT
COURT OF APPEALS DEEMED A MISTAKEN CHARGE IN THE PROPER SETTING OF THIS
CASE. 

THE GOVERNMENT DOES NOT DEFEND THE "PRESUMPTION" AS A FAIR SUMMARY OF
EXPERIENCE.  IT OFFENDS REASON, SO THE GOVERNMENT ADMITS, AS MUCH AS
DID THE PRESUMPTION WHICH WAS FOUND UNSUPPORTABLE IN TOT V. UNITED
STATES, 319 U.S. 463, EVEN THOUGH THAT WAS EMBODIED IN AN ACT OF
CONGRESS.  INSTEAD, THE GOVERNMENT IN EFFECT ASKS US TO PAY NO
ATTENTION TO THIS PALPABLY ERRONEOUS ANSWER BY THE JUDGE TO THE JURY'S
INQUIRY AS TO GUILT ON THE CHARGE OF CONSPIRACY TO TRANSPORT STOLEN
SECURITIES "IF THE DEFENDANT WERE AWARE THAT THE BONDS WHICH HE AIDED
IN DISPOSING OF WERE STOLEN."  WE CAN PAY NO ATTENTION TO THIS
MISDIRECTION ONLY BY ASSUMING THAT THE JURY PAID NO ATTENTION TO IT AND
THAT THE CASE IS BEFORE US AS THOUGH NO MISDIRECTION HAD BEEN GIVEN. 
TO DO SO IS TO DISREGARD THE SIGNIFICANCE OF THE COURSE OF EVENTS, AS
REVEALED BY THE RECORD, AFTER THE CASE WENT TO THE JURY. 

THE GOVERNMENT SUGGESTS THAT THE JUDGE'S MISCONCEIVED "PRESUMPTION"
WAS "JUST WHAT IT APPEARS TO BE - A QUITE CURSORY, LAST MINUTE,
INSTRUCTION ON THE QUESTION OF THE NECESSITY OF KNOWLEDGE AS TO THE
STOLEN CHARACTER OF THE NOTES - AND NOTHING MORE."  BUT PRECISELY
BECAUSE IT WAS A "LAST MINUTE INSTRUCTION" THE DUTY OF SPECIAL CARE WAS
INDICATED IN REPLYING TO A WRITTEN REQUEST FOR FURTHER LIGHT ON A VITAL
ISSUE BY A JURY WHOSE FOREMAN REPORTED THAT THEY WERE "HOPELESSLY
DEADLOCKED" AFTER THEY HAD BEEN OUT SEVEN HOURS.  "IN A TRIAL BY JURY
IN A FEDERAL COURT, THE JUDGE IS NOT A MERE MODERATOR, BUT IS THE
GOVERNOR OF THE TRIAL FOR THE PURPOSE OF ASSURING ITS PROPER CONDUCT
AND OF DETERMINING QUESTIONS OF LAW."  QUERCIA V. UNITED STATES, 289
U.S. 466, 469.  "THE INFLUENCE OF THE TRIAL JUDGE ON THE JURY IS
NECESSARILY AND PROPERLY OF GREAT WEIGHT," STARR V. UNITED STATES, 153
U.S. 614, 626, AND JURORS ARE EVER WATCHFUL OF THE WORDS THAT FALL FROM
HIM.  PARTICULARLY IN A CRIMINAL TRIAL, THE JUDGE'S LAST WORD IS APT TO
BE THE DECISIVE WORD.  IF IT IS A SPECIFIC RULING ON A VITAL ISSUE AND
MISLEADING, THE ERROR IS NOT CURED BY A PRIOR UNEXCEPTIONABLE AND
UNILLUMINATING ABSTRACT CHARGE. 

AN EXPERIENCED TRIAL JUDGE SHOULD HAVE REALIZED THAT SUCH A LONG
WRANGLE IN THE JURY ROOM AS OCCURRED IN THIS CASE WOULD LEAVE THE JURY
IN A STATE OF FRAYED NERVES AND FATIGUED ATTENTION, WITH THE DESIRE TO
GO HOME AND ESCAPE OVERNIGHT DETENTION, PARTICULARLY IN VIEW OF A PLAIN
HINT FROM THE JUDGE THAT A VERDICT OUGHT TO BE FORTHCOMING.  THE JURY
WAS OBVIOUSLY IN DOUBT AS TO BOLLENBACH'S PARTICIPATION IN THE THEFT OF
THE SECURITIES IN MINNEAPOLIS AND THEIR TRANSPORTATION TO NEW YORK. 
THE JURY'S QUESTIONS, AND PARTICULARLY THE LAST WRITTEN INQUIRY IN
REPLY TO WHICH THE UNTENABLE "PRESUMPTION" WAS GIVEN, CLEARLY INDICATED
THAT THE JURORS WERE CONFUSED CONCERNING THE RELATION OF KNOWINGLY
DISPOSING OF STOLEN SECURITIES AFTER THEIR INTERSTATE JOURNEY HAD ENDED
TO THE CHARGE OF CONSPIRING TO TRANSPORT SUCH SECURITIES.  DISCHARGE OF
THE JURY'S RESPONSIBILITY FOR DRAWING APPROPRIATE CONCLUSIONS FROM THE
TESTIMONY DEPENDED ON DISCHARGE OF THE JUDGE'S RESPONSIBILITY TO GIVE
THE JURY THE REQUIRED GUIDANCE BY A LUCID STATEMENT OF THE RELEVANT
LEGAL CRITERIA.  WHEN A JURY MAKES EXPLICIT ITS DIFFICULTIES A TRIAL
JUDGE SHOULD CLEAR THEM AWAY WITH CONCRETE ACCURACY.  IN ANY EVENT,
THEREFORE, THE TRIAL JUDGE HAD NO BUSINESS TO BE "QUITE CURSORY" IN THE
CIRCUMSTANCES IN WHICH THE JURY HERE ASKED FOR SUPPLEMENTAL
INSTRUCTION.  BUT HE WAS NOT EVEN "CURSORILY" ACCURATE.  HE WAS SIMPLY
WRONG. 

THE CIRCUIT COURT OF APPEALS READ THE JUDGE'S CHARGE TO MEAN THAT THE
JURY WAS PERMITTED TO FIND BOLLENBACH "GUILTY OF A CONSPIRACY TO
TRANSPORT STOLEN NOTES IF HE JOINED IN THEIR DISPOSAL AFTER THE
TRANSPORTATION HAD ENDED."  WE SO READ IT.  THAT COURT, AS WE HAVE
SEEN, PROPERLY REJECTED THE PROPRIETY OF LEAVING THE CASE TO THE JURY
AS THE TRIAL JUDGE HAD LEFT IT, BUT SUSTAINED THE CONVICTION ON ITS OWN
ACCESSORY-AFTER-THE-FACT THEORY.  COMPELLED TO REPUDIATE THIS THEORY,
THE GOVERNMENT NOW SEEKS TO SUSTAIN THE CONVICTION ON THE AFTERTHOUGHT
THAT THE CHARGE DID NOT MEAN WHAT IT SAID, AND THAT, WHILE THE JURY
ASKED ONE QUESTION, THE TRIAL JUDGE REPLIED TO ANOTHER.  HERE THEN ARE
THREE DIFFERENT AND CONFLICTING THEORIES REGARDING A CHARGE DESIGNED TO
GUIDE THE JURY IN DETERMINING GUILT, AND YET WE ARE ASKED TO SUSTAIN
THE CONVICTION ON THE ASSUMPTION THAT THE JURY WAS PROPERLY GUIDED. 
THE GOVERNMENT CONTENDS THAT THE COURT BELOW FAILED TO APPRECIATE
SEVERAL FACTORS IN REGARD TO THE CRITICIZED CHARGE.  WHAT REASON IS
THERE FOR ASSUMING THAT THE JURY DID NOT ALSO FAIL TO APPRECIATE THESE
FACTORS WHICH THE GOVERNMENT, IN AN ELABORATE ARGUMENT, EXPLAINS AS
REQUISITE FOR A PROPER UNDERSTANDING OF THAT WHICH AT BEST WAS
DUBIOUSLY EXPRESSED?  A CONVICTION OUGHT NOT TO REST ON AN EQUIVOCAL
DIRECTION TO THE JURY ON A BASIC ISSUE.  AND A CHARGE DEEMED ERRONEOUS
BY THREE CIRCUIT JUDGES OF LONG EXPERIENCE AND WHO HAVE A STURDY VIEW
OF CRIMINAL JUSTICE IS CERTAINLY NOT BETTER THAN EQUIVOCAL.  THE
GOVERNMENT'S SUGGESTION REALLY IMPLIES THAT, ALTHOUGH IT IS THE JUDGE'S
SPECIAL BUSINESS TO GUIDE THE JURY BY APPROPRIATE LEGAL CRITERIA
THROUGH THE MAZE OF FACTS BEFORE IT, WE CAN SAY THAT THE LAY JURY WILL
KNOW ENOUGH TO DISREGARD THE JUDGE'S BAD LAW IF IN FACT HE MISGUIDES
THEM.  TO DO SO WOULD TRANSFER TO THE JURY THE JUDGE'S FUNCTION IN
GIVING THE LAW AND TRANSFER TO THE APPELLATE COURT THE JURY'S FUNCTION
OF MEASURING THE EVIDENCE BY APPROPRIATE LEGAL YARDSTICKS. 

THE GOVERNMENT ARGUES THAT THE STING OF ERROR IS EXTRACTED BECAUSE
THERE WAS PROOF, OTHER THAN THE ERRONEOUS "PRESUMPTION," ON THE ISSUE
OF BOLLENBACH'S PARTICIPATION IN THE WRONGDOING BEFORE THE
TRANSPORTATION OF THE STOLEN SECURITIES HAD ENDED.  THIS IS TO
DISREGARD THE VITAL FACT THAT FOR SEVEN HOURS THE JURY WAS UNABLE TO
FIND GUILT IN THE LIGHT OF THE MAIN CHARGE, BUT REACHED A VERDICT OF
GUILTY UNDER THE CONSPIRACY COUNT FIVE MINUTES AFTER THEIR INQUIRY WAS
ANSWERED BY AN UNTENABLE LEGAL PROPOSITION.  IT WOULD INDEED BE A LONG
JUMP AT GUESSING TO BE CONFIDENT THAT THE JURY DID NOT RELY ON THE
ERRONEOUS "PRESUMPTION" GIVEN THEM AS A GUIDE.  A CHARGE SHOULD NOT BE
MISLEADING.  SEE AGNEW V. UNITED STATES, 165 U.S. 36, 52.  LEGAL
PRESUMPTIONS INVOLVE SUBTLE CONCEPTIONS TO WHICH NOT EVEN JUDGES ALWAYS
BRING CLEAR UNDERSTANDING.  SEE THAYER, PRELIMINARY TREATISE ON
EVIDENCE (1898) CHAPS.  8 AND 9; WIGMORE, EVIDENCE (3D ED., 1940) SECS.
2490-2540; MORGAN, SOME OBSERVATIONS CONCERNING PRESUMPTIONS (1931) 44
HARV. L. REV. 906; DENNING, PRESUMPTIONS AND BURDENS (1945) 61 L.Q.
REV. 379.  IN VIEW OF THE GOVERNMENT'S INSISTENCE THAT THERE IS
ABUNDANT EVIDENCE TO INDICATE THAT BOLLENBACH WAS IMPLICATED IN THE
CRIMINAL ENTERPRISE FROM THE BEGINNING, IT MAY NOT BE AMISS TO REMIND
THAT THE QUESTION IS NOT WHETHER GUILT MAY BE SPELT OUT OF A RECORD,
BUT WHETHER GUILT HAS BEEN FOUND BY A JURY ACCORDING TO THE PROCEDURE
AND STANDARDS APPROPRIATE FOR CRIMINAL TRIALS IN THE FEDERAL COURTS. 
ACCORDINGLY, WE CANNOT TREAT THE MANIFEST MISDIRECTION IN THE
CIRCUMSTANCES OF THIS CASE AS ONE OF THOSE "TECHNICAL ERRORS" WHICH "DO
NOT AFFECT THE SUBSTANTIAL RIGHTS OF THE PARTIES" AND MUST THEREFORE BE
DISREGARDED.  40 STAT. 1181, 28 U.S.C. SEC. 391.  ALL LAW IS TECHNICAL
IF VIEWED SOLELY FROM CONCERN FOR PUNISHING CRIME WITHOUT HEEDING THE
MODE BY WHICH IT IS ACCOMPLISHED.  THE "TECHNICAL ERRORS" AGAINST WHICH
CONGRESS PROTECTED JURY VERDICTS ARE OF THE KIND WHICH LED SOME JUDGES
TO TRIVIALIZE LAW BY GIVING ALL LEGAL PRESCRIPTIONS EQUAL POTENCY.  SEE
TAFT, ADMINISTRATION OF CRIMINAL LAW (1905) 15 YALE L.J. 1, 15. 
DEVIATIONS FROM FORMAL CORRECTNESS DO NOT TOUCH THE SUBSTANCE OF THE
STANDARDS BY WHICH GUILT IS DETERMINED IN OUR COURTS, AND IT IS THESE
THAT CONGRESS RENDERED HARMLESS.  BRUNO V. UNITED STATES, 308 U.S. 287,
293-94; WEILER V. UNITED STATES, 323 U.S. 606, 611.  FN1  FROM
PRESUMING TOO OFTEN ALL ERRORS TO BE "PREJUDICIAL," THE JUDICIAL
PENDULUM NEED NOT SWING TO PRESUMING ALL ERRORS TO BE "HARMLESS" IF
ONLY THE APPELLATE COURT IS LEFT WITHOUT DOUBT THAT ONE WHO CLAIMS ITS
CORRECTIVE PROCESS IS, AFTER ALL, GUILTY.  IN VIEW OF THE PLACE OF
IMPORTANCE THAT TRIAL BY JURY HAS IN OUR BILL OF RIGHTS, IT IS NOT TO
BE SUPPOSED THAT CONGRESS INTENDED TO SUBSTITUTE THE BELIEF OF
APPELLATE JUDGES IN THE GUILT OF AN ACCUSED, HOWEVER JUSTIFIABLY
ENGENDERED BY THE DEAD RECORD, FOR ASCERTAINMENT OF GUILT BY A JURY
UNDER APPROPRIATE JUDICIAL GUIDANCE, HOWEVER CUMBERSOME THAT PROCESS
MAY BE.  JUDGMENT REVERSED. 

FN1  COMPARE THE APPLICATIONS BY THE ENGLISH COURTS OF A SIMILAR
PROVISION IN THE CRIMINAL APPEAL ACT, 1907:  MAXWELL V. DIRECTOR OF
PUBLIC PROSECUTIONS, (1935) A.C. 309; REX V. LECKEY, (1944) 1 K.B. 80;
REX V. SLENDER, 26 CRIM. APP. REP. 155(1938); REX V. REDD, (1923) 1
K.B. 104; REX V. WATSON, (1916) 2 K.B. 385; REX V. AHLERS, (1915) 1
K.B. 616; REX V. THOMPSON, (1914) 2 K.B. 99; REX V. EDWARDS, (1913) 1
K.B. 287; REX V. RODLEY, (1913) 3 K.B. 468; REX V. ELLIS, (1910) 2 K.B.
746; REX V. DYSON, (1908) 2 K.B. 454; CF. BRAY V. FORD, (1896) A.C.
44.  AND SEE MAKIN V. ATTORNEY GENERAL, (1894) A.C. 57, CONSTRUING A
SIMILAR PROVISION IN THE CRIMINAL LAW (AMENDMENT) ACT, 1883. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

TOT V. UNITED STATES, 319 U.S. 463, HELD THAT THE MERE POSSESSION OF
A PISTOL COUPLED WITH CONVICTION FOR A PRIOR CRIME WAS NOT EVIDENCE
PROVING THAT THE PISTOL HAD BEEN SHIPPED OR TRANSPORTED IN INTERSTATE
COMMERCE.  I AGREE WITH THE GOVERNMENT'S CONTENTION THAT THE TRIAL
COURT'S CHARGE IN THIS CASE DOES NOT CONFLICT WITH THE TOT HOLDING. 
FOR THE TRIAL COURT DID NOT CHARGE THE JURY THAT INTERSTATE
TRANSPORTATION OF THE STOLEN SECURITIES COULD BE INFERRED FROM THEIR
MERE POSSESSION IN NEW YORK.  IN FACT, THE UNDISPUTED EVIDENCE SHOWED
THAT THE SECURITIES, STOLEN IN MINNESOTA, TURNED UP IN THE PETITIONER'S
POSSESSION IN NEW YORK VERY SHORTLY AFTER THE THEFT.  NO EVIDENCE WAS
OFFERED TO EXPLAIN THIS POSSESSION OF THE STOLEN GOODS.  UNDER THESE
CIRCUMSTANCES THE TRIAL JUDGE RIGHTLY CHARGED THE JURY THAT THE
UNEXPLAINED POSSESSION OF STOLEN PROPERTY SHORTLY AFTER THE THEFT WAS
SUFFICIENT TO JUSTIFY A FINDING THAT THE PETITIONER NOT ONLY KNEW THAT
THE BONDS WERE STOLEN BUT THAT HE WAS THE THIEF.  SUCH SEEMS TO HAVE
BEEN THE ESTABLISHED RULE OF LAW SINCE TIME IMMEMORIAL.  FN1 

NEVER UNTIL TODAY HAS THIS COURT CAST ANY DOUBT ON THE EXISTENCE OR
SOUNDNESS OF THE RULE.  IN FACT IT HAS RECOGNIZED OR EXPRESSLY APPROVED
IT AS PROPER IN CASES INVOLVING LARCENY, DUNLOP V. UNITED STATES, 165
U.S. 486, 502; BURGLARY, MCNAMARA V. HENKEL, 226 U.S. 520, 524-525;
ARSON, WILSON V. UNITED STATES, 162 U.S. 613, 617, 619, 620; AND EVEN
MURDER, IBID.  AND IN THE WILSON CASE, SUPRA, THIS COURT APPROVED A
CHARGE BY THE TRIAL COURT USING SUBSTANTIALLY THE SAME LANGUAGE AS TO
"PRESUMPTION," WHICH THE TRIAL COURT HERE USED.  FN2  THERE IS NO
REASON WHICH I CAN CONCEIVE, AND THE COURT OFFERS NONE, WHY THE
SENSIBLE AND LONG-ESTABLISHED RULE SHOULD BE APPROPRIATE IN ALL KINDS
OF CASES EXCEPT THE ONE BEFORE US. CERTAINLY EVIDENCE OF THE THEFT OF
THE BONDS AND THEIR TRANSPORT IN INTERSTATE COMMERCE WITH KNOWLEDGE OF
THE THEFT, WAS RELEVANT ON BOTH COUNTS OF THE INDICTMENT, THE FIRST
CHARGING THE THEFT AND TRANSPORTATION, AND THE SECOND CHARGING
CONSPIRACY TO COMMIT THE CRIME.  AND THESE RELEVANT FACTS WERE CAPABLE
OF PROOF BY CIRCUMSTANTIAL EVIDENCE TO THE SAME EXTENT AS TO EACH
COUNT.  THE "UNEXPLAINED POSSESSION" RULE IS IN SUBSTANCE A
CIRCUMSTANTIAL EVIDENCE RULE.  THE EXPERIENCE OF AGES HAS JUSTLY GIVEN
THIS PARTICULAR TYPE OF CIRCUMSTANTIAL EVIDENCE A HIGH VALUE.  IN MY
OPINION THE TRIAL COURT'S CHARGE INSOFAR AS IT STATED THAT UNEXPLAINED
POSSESSION OF THE STOLEN BONDS RAISED A "PRESUMPTION" THAT PETITIONER
WAS THE THIEF, WAS A CORRECT STATEMENT OF LAW UNDER OUR FORMER
DECISIONS.  THE COURT'S OPINION DOES NOT EXPLICITLY REPUDIATE THIS PART
OF THE TRIAL JUDGE'S INSTRUCTION BUT IT SEEMS TO ME THAT SUCH
REPUDIATION IS IMPLICIT IN THE COURT'S REASONING. 

THERE IS SOME INDICATION IN THE COURT'S OPINION THAT IT THOUGHT THE
ENTIRE ANSWER TO THE JURY'S QUESTION ERRONEOUS BECAUSE IT WAS
MISLEADING.  THE ONLY REASON, I CAN IMAGINE, WHY THE COURT'S ANSWER,
STATING THIS WELL-ESTABLISHED RULE, COULD BE THOUGHT MISLEADING, IS
THAT THE ANSWER WAS IN RESPONSE TO A QUESTION ON THE CONSPIRACY COUNT. 
THUS THE COURT MAY BE SAYING THAT THE JURY MIGHT HAVE BELIEVED FROM THE
TRIAL COURT'S INSTRUCTIONS THAT UNEXPLAINED POSSESSION IS NOT ONLY
PROOF THAT PETITIONER WAS THE THIEF BUT ALSO IS IN AND OF ITSELF PROOF
THAT HE WAS A CONSPIRATOR.  IN VIEW OF THE FACT THAT THE JUDGE
PREVIOUSLY FULLY INSTRUCTED THE JURY ON CONSPIRACY, I DO NOT THINK IT
EITHER POSSIBLE OR PROBABLE THAT THE JURY WAS MISLED IN THE WAY
INDICATED.  BUT MY OBJECTION IS CHIEFLY TO THE COURT'S REPUDIATION,
EITHER PARTIAL, OR COMPLETE, OF A RULE WHICH PERMITS COURTS AND JURIES
TO DRAW PERFECTLY JUSTIFIABLE INFERENCES FROM PROVEN FACTS. 

NOR DO I THINK THE TRIAL JUDGE WAS WRONG IN INSTRUCTING THE JURY THAT
THE UNEXPLAINED POSSESSION IN NEW YORK OF THE SECURITIES RECENTLY
STOLEN IN MINNESOTA JUSTIFIED AN INFERENCE THAT THE PETITIONER HAD
TRANSPORTED THEM IN INTERSTATE COMMERCE.  IF THIS POSSESSION IN NEW
YORK JUSTIFIED AN INFERENCE THAT HE HAD STOLEN THE SECURITIES IN
MINNESOTA, I FAIL TO SEE WHY IT DOES NOT ALSO JUSTIFY THE INFERENCE
THAT HE CARRIED THEM TO NEW YORK.  CAN IT BE SAID THAT THERE IS A
PRESUMPTION THAT HE STOLE THEM IN MINNESOTA AND THEN PASSED OUT OF THE
PICTURE WHILE THE STOLEN GOODS WERE CARRIED TO NEW YORK, AND THAT THE
JURY WAS COMPELLED TO ATTRIBUTE HIS POSSESSION IN NEW YORK TO SOMETHING
AS INDEFINITE AS AN "ACT OF GOD OR THE PUBLIC ENEMY"?  THE VERY
PRESUMPTION OF THEFT HAS TO CARRY WITH IT THE PRESUMPTION OF
TRANSPORTATION.  THIEVES DO NOT REMAIN AT THE SCENE OF THEIR CRIME. 
THE CLASSICAL DEFINITION OF LARCENY CONTAINS THE PHRASE "A FELONIOUS
TAKING AND CARRYING AWAY." 

THE BILL OF RIGHTS IS IMPROPERLY INVOKED TO SUPPORT THE COURT'S
HOLDING IN THIS CASE.  IT CONTEMPLATES THAT A DEFENDANT SHALL HAVE A
FAIR TRIAL, BUT IT DOES NOT COMMAND THAT JURIES SHALL BE DENIED THE
RIGHT TO DRAW THE KIND OF INFERENCES FROM ADMITTED FACTS THAT ALL
PEOPLE OF REASONABLE UNDERSTANDING WOULD DRAW.  I ASSUME THAT IF THESE
BONDS HAD BEEN STOLEN IN MINNEAPOLIS, MINNESOTA, AT 6 A.M., AND THIS
PETITIONER HAD TURNED UP WITH THEM JUST OUTSIDE THE NEW YORK AIRPORT AT
12 O'CLOCK NOON OF THE SAME DAY, A REASONABLE PERSON COULD NOT ONLY
INFER THAT HE HAD STOLEN THEM, BUT ALSO THAT HE HAD TRANSPORTED THEM. 
THE ONLY DIFFERENCE BETWEEN DRAWING AN INFERENCE OF TRANSPORTATION IN
THAT CASE AND THE ONE BEFORE US IS THAT THE INFERENCE OF TRANSPORTATION
HERE MIGHT NOT BE QUITE SO OVERPOWERING.  BUT IT IS NONE THE LESS A
REASONABLE ONE. 

THE TRIAL JUDGE'S ORAL CHARGE TO THE JURY WAS CLEAR, FAIR, CORRECT,
AND UNCHALLENGED.  I DISAGREE WITH THE COURT'S CENSURE OF HIS
ADDITIONAL INSTRUCTIONS.  FN3  THE JURY'S VERDICT, GIVEN AFTER A FAIR
TRIAL, WAS SUPPORTED, IF NOT COMPELLED, BY THE EVIDENCE.  IT IS, IN MY
JUDGMENT, A DISSERVICE TO THE ADMINISTRATION OF CRIMINAL LAW TO REVERSE
THIS CASE. 

FN1  SEE THE CASES COLLECTED IN NOTES ON HUNT V. COMMONWEALTH, 70 AM.
DEC. 443, 447-452; STATE V. DREW, 101 AM. ST. REP. 474, 481-524. 

FN2  THE COURT'S CHARGE HERE CONDEMNED WAS THAT UNEXPLAINED
POSSESSION "RAISED A PRESUMPTION."  IT MAY BE, ALTHOUGH I AM NOT SURE,
THAT THE CONDEMNATION RESTS ON THE USE OF THE WORD "PRESUMPTION"
INSTEAD OF "INFERENCE."  AND IT IS TRUE THAT FINE-SPUN REFINEMENTS HAVE
BEEN INVENTED IN EFFORTS TO DISTINGUISH "PRESUMPTIONS" FROM
"INFERENCES," CF. NEW YORK LIFE INS. CO. V. GAMER, 303 U.S. 161, 175
177.  BUT I AM SURE THAT THIS JURY WAS NOT FAMILIAR WITH THE DIALECTICS
WHICH SOUGHT WITHOUT SUCCESS TO DELIVER THESE METAPHYSICAL DISTINCTIONS
FROM FOETAL DARKNESS.  AND THE NOTES ALREADY CITED, AS WELL AS MANY
CASES, HAVE SHOWN THAT NO SUCH PRACTICAL DISTINCTION EXISTS.  SEE E.G.
UNITED STATES V. DI CARLO, 64 F.2D 15, 17; UNITED STATES V. SEEMAN, 115
F.2D 371, 374.  THAT THE TRIAL JUDGE TREATED A "PRESUMPTION" AS AN
INFERENCE, JUST AS ANY JUROR WOULD, IS SHOWN BY AN EARLIER PART OF HIS
CHARGE AS FOLLOWS:  "IT IS THE LAW THAT THE UNEXPLAINED POSSESSION OF
STOLEN PROPERTY SHORTLY AFTER THE THEFT IS SUFFICIENT TO JUSTIFY THE
CONCLUSION BY A JURY OF KNOWLEDGE BY THE POSSESSOR THAT THE PROPERTY
WAS STOLEN."  AND IT IS INTERESTING TO NOTE THAT THIS COURT SAID IN THE
WILSON CASE, SUPRA, AT 619-620, THAT "IN RICKMAN'S CASE, 2 EAST P.C.
1035, CITED, IT WAS HELD THAT ON AN INDICTMENT FOR ARSON, PROOF THAT
PROPERTY WAS IN THE HOUSE AT THE TIME IT WAS BURNED, AND WAS SOON
AFTERWARDS FOUND IN THE POSSESSION OF THE PRISONER, RAISES A PROBABLE
PRESUMPTION THAT HE WAS PRESENT AND CONCERNED IN THE OFFENCE; AND IN
REX V. DIGGLES, (WILLS CIR. EV.*  53,) THAT THERE IS A LIKE PRESUMPTION
IN THE CASE OF MURDER ACCOMPANIED BY ROBBERY.  PROOF THAT DEFENDANT HAD
IN HIS POSSESSION, SOON AFTER, ARTICLES APPARENTLY TAKEN FROM THE
DECEASED AT THE TIME OF HIS DEATH IS ALWAYS ADMISSIBLE, AND THE FACT,
WITH ITS LEGITIMATE INFERENCE, IS TO BE CONSIDERED BY THE JURY ALONG
WITH THE OTHER FACTS IN THE CASE IN ARRIVING AT THEIR VERDICT." 

FN3  THIS COURT READS THE TRIAL JUDGE'S CHARGE TO MEAN THAT
BOLLENBACH WAS "GUILTY OF A CONSPIRACY TO TRANSPORT STOLEN NOTES IF HE
JOINED IN THEIR DISPOSAL AFTER THE TRANSPORTATION HAD ENDED."  THE
TRIAL JUDGE ACTUALLY CHARGED THE JURY THUS:  "IF THE PARTICIPATION OF
THIS DEFENDANT IN THIS WAS SUBSEQUENT, THAT IS, THAT HE DID NOT KNOW
THAT THEY WERE TRANSPORTED, THAT IS, IF HE DID NOT TRANSPORT THEM OR
CAUSE THEM TO BE TRANSPORTED HIMSELF, OF COURSE THERE WOULD BE NO
OFFENSE.  THAT IS, IF THE BONDS ARRIVED IN NEW YORK AND HE HAD NOTHING
TO DO WITH TRANSPORTING OR CAUSING THEM TO BE TRANSPORTED THERE WOULD
BE NO OFFENSE."  LATER THE JURY ASKED THE JUDGE THIS QUESTION:  "IF THE
DEFENDANT WERE AWARE THAT THE BONDS WHICH HE AIDED IN DISPOSING OF WERE
STOLEN DOES THAT KNOWLEDGE MAKE HIM GUILTY ON THE SECOND COUNT?"  THE
JUDGE'S REPLY SO FAR AS RELEVANT TO THIS PARTICULAR QUESTION WAS:  "OF
COURSE IF IT OCCURRED AFTERWARDS IT WOULD NOT MAKE HIM GUILTY ..."  NOT
ONE WORD AND NOT ONE INTIMATION HAVE I BEEN ABLE TO DISCOVER IN THE
INSTRUCTIONS TO THE JURY TO THE EFFECT THAT BOLLENBACH COULD BE
CONVICTED IF HE HAD DONE NO MORE THAN JOIN IN DISPOSAL OF THE BONDS
AFTER THEIR TRANSPORTATION HAD ENDED. 
..END :















HILLSBOROUGH V. CROMWELL, 326 U.S. 620 


NO. 305.  ARGUED DECEMBER 13, 14, 1945.  - DECIDED JANUARY 28, 1946.  -
149 F.2D 617, AFFIRMED. 


1.  UNDER THE DECLARATORY JUDGMENT ACT, JUDICIAL CODE SEC. 274(D), A
FEDERAL DISTRICT COURT HAS JURISDICTION TO ENTERTAIN A SUIT FOR THE
PURPOSE OF DETERMINING THE VALIDITY OF A STATE TAX ASSESSMENT UNDER THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT,
WHERE THE CONSTITUTIONAL RIGHTS OF THE COMPLAINANT CAN NOT BE PROTECTED
ADEQUATELY BY PROCEEDINGS IN THE STATE COURTS.  GREAT LAKES DREDGE &
DOCK CO. V. HUFFMAN, 319 U.S. 293, DIFFERENTIATED.  PP. 622-624. 

2.  WHERE A TAXPAYER WHO HAS BEEN SINGLED OUT FOR DISCRIMINATORY
TAXATION MAY NOT OBTAIN EQUALIZATION UNDER THE STATE LAW BY REDUCTION
OF HIS OWN ASSESSMENT BUT IS RESTRICTED TO PROCEEDINGS AGAINST OTHER
MEMBERS OF HIS CLASS FOR THE PURPOSE OF HAVING THEIR TAXES INCREASED,
THE STATE REMEDY IS NOT ADEQUATE TO PROTECT HIS RIGHTS UNDER THE
FOURTEENTH AMENDMENT.  P. 623. 

3.  A TAXPAYER BROUGHT SUIT IN A FEDERAL DISTRICT COURT FOR A
DECLARATORY JUDGMENT TO DETERMINE THE VALIDITY OF A STATE TAX
ASSESSMENT UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT.  THERE WAS UNCERTAINTY CONCERNING THE MEANING OF
THE LOCAL LAW.  HE COULD HAVE APPEALED ORIGINALLY TO THE STATE BOARD OF
TAX APPEALS, BUT THAT BOARD HAD NO RIGHT TO PASS ON CONSTITUTIONAL
QUESTIONS.  ITS JUDGMENTS COULD BE REVIEWED BY THE STATE SUPREME COURT
BY CERTIORARI, BUT THE ALLOWANCE OF SUCH A WRIT WAS DISCRETIONARY.  THE
REFUSAL OF A WRIT OF CERTIORARI BY THE STATE SUPREME COURT COULD NOT BE
JUDICIALLY REVIEWED BY THE STATE COURT OF ERRORS AND APPEALS.  WHEN THE
DISTRICT COURT RULED ON A MOTION TO DISMISS, THE TIME FOR APPEAL TO THE
STATE BOARD OF TAX APPEALS HAD EXPIRED.  WHEN THE DISTRICT COURT
RENDERED JUDGMENT, THERE HAD BEEN A RECENT AUTHORITATIVE INTERPRETATION
OF THE LOCAL LAW BY THE STATE COURT.  HELD: 

(A)  THERE WAS SUCH UNCERTAINTY SURROUNDING THE ADEQUACY OF THE STATE
REMEDY AS TO JUSTIFY THE FEDERAL DISTRICT COURT IN RETAINING
JURISDICTION OF THE CAUSE.  P. 625. 

(B)  IT WAS PROPER FOR THE FEDERAL DISTRICT COURT TO PROCEED TO
DECIDE THE CASE ON ITS MERITS, EVEN THOUGH THE DECISION WAS NOT ON
FEDERAL GROUNDS BUT ON THE GROUND THAT THE ASSESSMENT WAS NOT IN
CONFORMITY WITH THE STATE STATUTE.  SPECTOR MOTOR CO. V. MCLAUGHLIN,
323 U.S. 101, DIFFERENTIATED.  PP. 626-629. 

4.  THIS COURT IS UNABLE TO SAY THAT THE DISTRICT COURT AND THE
CIRCUIT COURT OF APPEALS ERRED IN APPLYING TO THIS CASE THE RULE OF
DUKE POWER CO. V. STATE BOARD, 129 N.J.L. 449, 131 N.J.L. 275, WHICH
INVOLVED CLOSELY ANALOGOUS FACTS.  P. 629. 

TOWNSHIP OF HILLSBOROUGH ET AL. V. CROMWELL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 704, TO REVIEW AFFIRMANCE OF A JUDGMENT OF A
DISTRICT COURT, 56 F.SUPP.  41, DENYING A MOTION TO DISMISS AND
DECLARING CERTAIN STATE TAX ASSESSMENTS TO BE NULL AND VOID. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT BY RESPONDENT UNDER THE DECLARATORY JUDGMENT
ACT, JUDICIAL CODE, SEC. 274(D), 28 U.S.C. SEC. 400, TO HAVE DECLARED
NULL AND VOID CERTAIN ASSESSMENTS ON INTANGIBLE PERSONAL PROPERTY
ENTERED FOR THE YEARS 1940 AND 1941 BY THE COLLECTOR OF HILLSBOROUGH
TOWNSHIP, SOMERSET COUNTY, NEW JERSEY.  FN1  THE JURISDICTION OF THE
FEDERAL COURT IN NEW JERSEY WAS INVOKED BY REASON OF DIVERSITY OF
CITIZENSHIP AND THE ALLEGATION THAT THE TAXING AUTHORITIES HAD
CONSISTENTLY, SYSTEMATICALLY AND INTENTIONALLY SINGLED OUT RESPONDENT
FOR DISCRIMINATORY TREATMENT IN THE ASSESSMENT OF TAXES FOR WHICH SHE
WAS WITHOUT REMEDY UNDER THE LAWS AND DECISIONS OF NEW JERSEY.  IT WAS
PRAYED THAT THE ASSESSMENTS BE DECLARED INVALID AS IN CONTRAVENTION OF
THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT AND OF THE PROVISIONS OF APPLICABLE NEW JERSEY STATUTES TO
WHICH WE WILL LATER REFER.  THE DISTRICT COURT DENIED A MOTION TO
DISMISS AND GAVE JUDGMENT FOR RESPONDENT.  56 F.SUPP.  41.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  149 F.2D 617.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE THE ASSERTED
CONFLICT OF THAT DECISION WITH GREAT LAKES DREDGE & DOCK CO. V.
HUFFMAN, 319 U.S. 293, RAISED AN IMPORTANT PROBLEM CONCERNING THE
RELATIONSHIP BETWEEN THE FEDERAL COURTS AND STATE TAXING AUTHORITIES. 

SEC. 267 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 384, PROVIDES THAT
SUITS IN EQUITY SHALL NOT BE SUSTAINED IN THE FEDERAL COURTS "IN ANY
CASE WHERE A PLAIN, ADEQUATE, AND COMPLETE REMEDY MAY BE HAD AT LAW." 
THAT PRINCIPLE HAS LONG BEEN RECOGNIZED AS HAVING "PECULIAR FORCE" IN
CASES WHERE THE FEDERAL COURTS WERE ASKED TO ENJOIN THE COLLECTION OF A
STATE TAX.  MATTHEWS V. RODGERS, 284 U.S. 521, 525, AND CASES CITED. 
"THE SCRUPULOUS REGARD FOR THE RIGHTFUL INDEPENDENCE OF STATE
GOVERNMENTS WHICH SHOULD AT ALL TIMES ACTUATE THE FEDERAL COURTS, AND A
PROPER RELUCTANCE TO INTERFERE BY INJUNCTION WITH THEIR FISCAL
OPERATIONS, REQUIRE THAT SUCH RELIEF SHOULD BE DENIED IN EVERY CASE
WHERE THE ASSERTED FEDERAL RIGHT MAY BE PRESERVED WITHOUT IT."  ID., P.
525.  WHERE THE REMEDY AT LAW IS "PLAIN, ADEQUATE, AND COMPLETE," IT IS
THE ONE WHICH MUST BE PURSUED EVEN FOR THE PROTECTION OF ANY FEDERAL
RIGHT.  THAT PRACTICE OF THE FEDERAL EQUITY COURTS WAS GIVEN FURTHER
RECOGNITION AND SANCTION BY CONGRESS IN THE JOHNSON ACT, 48 STAT. 775,
AS AMENDED, 50 STAT. 738, SEC. 24(1) OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 41(1), WHICH PROVIDES THAT "NO DISTRICT COURT SHALL HAVE
JURISDICTION OF ANY SUIT TO ENJOIN, SUSPEND, OR RESTRAIN THE
ASSESSMENT, LEVY, OR COLLECTION OF ANY TAX IMPOSED BY OR PURSUANT TO
THE LAWS OF ANY STATE WHERE A PLAIN, SPEEDY, AND EFFICIENT REMEDY MAY
BE HAD AT LAW OR IN EQUITY IN THE COURTS OF SUCH STATE."  IT WAS
AGAINST THAT BACKGROUND THAT WE HELD IN GREAT LAKES DREDGE & DOCK CO.
V. HUFFMAN, SUPRA, THAT THE POLICY WHICH LED FEDERAL COURTS OF EQUITY
TO REFRAIN FROM ENJOINING THE COLLECTION OF ALLEGEDLY UNLAWFUL STATE
TAXES SHOULD LIKEWISE GOVERN THE EXERCISE OF THEIR DISCRETION IN
WITHHOLDING RELIEF UNDER THE DECLARATORY JUDGMENT ACT. 

THE CIRCUIT COURT OF APPEALS FULLY RECOGNIZED THE PRINCIPLE OF THE
HUFFMAN CASE, BUT CONCLUDED THAT THE STATE PROCEDURE WAS NOT "SPEEDY,
EFFICIENT OR ADEQUATE" TO PROTECT THE FEDERAL RIGHT AGAINST
DISCRIMINATORY STATE TAXATION.  IT IS AROUND THAT CONCLUSION THAT THE
FIRST PHASE OF THIS CONTROVERSY TURNS. 

THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT PROTECTS THE
INDIVIDUAL FROM STATE ACTION WHICH SELECTS HIM OUT FOR DISCRIMINATORY
TREATMENT BY SUBJECTING HIM TO TAXES NOT IMPOSED ON OTHERS OF THE SAME
CLASS.  THE RIGHT IS THE RIGHT TO EQUAL TREATMENT.  HE MAY NOT COMPLAIN
IF EQUALITY IS ACHIEVED BY INCREASING THE SAME TAXES OF OTHER MEMBERS
OF THE CLASS TO THE LEVEL OF HIS OWN.  THE CONSTITUTIONAL REQUIREMENT,
HOWEVER, IS NOT SATISFIED IF A STATE DOES NOT ITSELF REMOVE THE
DISCRIMINATION, BUT IMPOSES ON HIM AGAINST WHOM THE DISCRIMINATION HAS
BEEN DIRECTED THE BURDEN OF SEEKING AN UPWARD REVISION OF THE TAXES OF
OTHER MEMBERS OF THE CLASS.  SIOUX CITY BRIDGE CO. V. DAKOTA COUNTY,
260 U.S. 441, 445-447; IOWA-DES MOINES NATIONAL BANK V. BENNETT, 284
U.S. 239, 247; CUMBERLAND COAL CO. V. BOARD OF REVISION, 284 U.S. 23,
28-29.  THE COURTS OF NEW JERSEY IN A LONG LINE OF DECISIONS N2 HAVE
HELD THAT A TAXPAYER WHO HAS BEEN SINGLED OUT FOR DISCRIMINATORY
TAXATION MAY NOT OBTAIN EQUALIZATION BY REDUCTION OF HIS OWN
ASSESSMENT.  HIS REMEDY IS RESTRICTED TO PROCEEDINGS AGAINST OTHER
MEMBERS OF HIS CLASS FOR THE PURPOSE OF HAVING THEIR TAXES INCREASED. 
THE RULE WAS STATED IN ROYAL MFG. CO. V. BOARD OF EQUALIZATION, 76
N.J.L. 402, 70 A. 978, AFF'D 78 N.J.L. 337, 74 A. 525, AS FOLLOWS:
"...  THE COUNTY BOARDS ARE REQUIRED TO SECURE TAXATION OF ALL PROPERTY
AT ITS TRUE VALUE; SO THAT THE FACT THAT THE PROPERTY OF A IS ASSESSED
AT ITS TRUE VALUE AND THE PROPERTY OF OTHER TAXPAYERS WITHIN THE SAME
DISTRICT IS ASSESSED BELOW ITS TRUE VALUE, AFFORDS A NO GROUND FOR
DEMANDING A REDUCTION OF HIS VALUATION, THOUGH IT DOES ENTITLE HIM TO
APPLY FOR AN INCREASE IN THE VALUATION OF THE OTHERS."  76 N.J.L. PP.
404-405.  ON THE BASIS OF THAT RULE IT IS PLAIN THAT THE STATE REMEDY
IS NOT ADEQUATE TO PROTECT RESPONDENT'S RIGHTS UNDER THE FEDERAL
CONSTITUTION. 

IT IS ARGUED, HOWEVER, THAT IN 1933 THE NEW JERSEY COURTS ADOPTED A
DIFFERENT RULE WHEN CENTRAL R. CO. V. STATE TAX DEPT. (THAYER-MARTIN),
112 N.J.L. 5, 169 A. 489, WAS DECIDED BY THE COURT OF ERRORS AND
APPEALS.  IN THAT CASE THE COURT DID ENTERTAIN AN OBJECTION THAT THE
PARTICULAR TAX ASSESSMENT VIOLATED THE RULE OF SIOUX CITY BRIDGE CO. V.
DAKOTA COUNTY, SUPRA.  IT FOUND THAT THE COMPLAINING TAXPAYER HAD NOT
SHOWN THAT A DISCRIMINATION WITHIN THE MEANING OF OUR CASES EXISTED. 
SO IT IS ARGUED THAT AS THE HIGHEST COURT IN NEW JERSEY RECOGNIZED THE
FEDERAL RULE, THE FEDERAL DISTRICT COURT SHOULD HAVE REMITTED
RESPONDENT TO HER REMEDY IN THE NEW JERSEY COURTS.  THERE IS, HOWEVER,
A TWO-FOLD DIFFICULTY WITH THAT POSITION. 

IN THE FIRST PLACE, THE SAME JUDGE WHO WROTE THE OPINION FOR THE
COURT OF ERRORS AND APPEALS IN THE THAYER-MARTIN CASE WROTE THE OPINION
FOR THE SUPREME COURT OF NEW JERSEY A YEAR LATER IN LEHIGH VALLEY R.
CO. V. STATE BOARD, 12 N.J. MISC. 673, 174 A. 359.  THE TAXPAYER
CONTENDED THAT THE STATE BOARD OF TAX APPEALS ERRED IN REFUSING TO
ADMIT EVIDENCE OF DISCRIMINATION.  THE ARGUMENT WAS THAT THE RULE OF
SIOUX CITY BRIDGE CO. V. DAKOTA COUNTY, SUPRA, SHOULD BE FOLLOWED AND
THE HOLDING OF ROYAL MFG. CO. V. BOARD OF EQUALIZATION, SUPRA, SHOULD
BE DISAPPROVED.  THE SUPREME COURT OF NEW JERSEY DECLINED TO ALLOW A
WRIT OF CERTIORARI TO REVIEW THE JUDGMENTS OF THE STATE BOARD OF TAX
APPEALS.  IT DID NOT MENTION THE THAYER-MARTIN CASE, BUT FOLLOWED ROYAL
MFG. CO. V. BOARD OF EQUALIZATION, SUPRA, SAYING THAT THE NEW JERSEY
LAW ON THE POINT WAS "SETTLED AND CONTROLLING."  12 N.J. MISC. P. 675. 
IT, THEREFORE, MAY WELL BE TRUE, AS RESPONDENT SAYS, THAT THE COURT IN
THE THAYER-MARTIN CASE SIMPLY DECIDED THAT THE POINT RAISED BY THE
TAXPAYER WAS NOT SUPPORTED BY FACTS AND FOUND IT UNNECESSARY TO
CONSIDER WHETHER, IF SYSTEMATIC DISCRIMINATION HAD BEEN SHOWN, NEW
JERSEY WOULD HAVE AFFORDED AN ADEQUATE REMEDY.  IN ANY EVENT, THERE IS
SUCH UNCERTAINTY CONCERNING THE NEW JERSEY REMEDY AS TO MAKE IT
SPECULATIVE (WALLACE V. HINES, 253 U.S. 66, 68) WHETHER THE STATE
AFFORDS FULL PROTECTION TO THE FEDERAL RIGHTS.  IN THE SECOND PLACE,
THE STATE BOARD OF TAX APPEALS TO WHICH RESPONDENT MIGHT HAVE APPEALED
CONCEDEDLY HAS NO RIGHT TO PASS ON CONSTITUTIONAL QUESTIONS.  FN3  ITS
JUDGMENTS MAY BE REVIEWED BY THE NEW JERSEY SUPREME COURT BY
CERTIORARI.  THE ALLOWANCE OF THAT WRIT, HOWEVER, IS NOT A MATTER OF
RIGHT, BUT PURELY DISCRETIONARY.  FN4  AND THE REFUSAL OF A WRIT OF
CERTIORARI BY THE SUPREME COURT MAY NOT BE JUDICIALLY REVIEWED BY THE
COURT OF ERRORS AND APPEALS.  FN5  ACCORDINGLY WE CONCLUDE THAT THERE
WAS SUCH UNCERTAINTY SURROUNDING THE ADEQUACY OF THE STATE REMEDY AS TO
JUSTIFY THE DISTRICT COURT IN RETAINING JURISDICTION OF THE CAUSE. 
WHILE THE CHARGES OF DISCRIMINATION IN THE COMPLAINT WERE DENIED, THE
JURISDICTION OF THE DISTRICT COURT IS DETERMINED BY THE ALLEGATIONS OF
THE BILL (HART V. B.F. KEITH VAUDEVILLE EXCHANGE, 262 U.S. 271) WHICH
HERE WERE SUBSTANTIAL. 

THIS BRINGS US TO THE SECOND PHASE OF THE CONTROVERSY.  NEITHER THE
DISTRICT COURT NOR THE CIRCUIT COURT OF APPEALS DECIDED THE CASE ON
FEDERAL GROUNDS.  THEY HELD IN RELIANCE ON DUKE POWER CO. V. STATE
BOARD, 129 N.J.L. 449, 30 A.2D 416, 131 N.J.L. 275, 36 A.2D 201, THAT
THE ASSESSMENTS WERE INVALID UNDER THE NEW JERSEY STATUTES.  IN THAT
CASE, AS IN THE PRESENT ONE, PROPERTY "OMITTED IN THE ASSESSMENT" WAS
ATTEMPTED TO BE ASSESSED BY THE COUNTY BOARD AGAINST THE TAXPAYER AFTER
APRIL 1ST OF EACH OF THE TAX YEARS INVOLVED WITHOUT NOTICE AND
HEARING.  FN6  THE ASSESSMENT WAS SET ASIDE AS NOT BEING IN CONFORMITY
WITH THE STATUTE.  AND IT WAS HELD THAT THE REMEDIAL STATUTES,  FN7
DESIGNED TO CURE IRREGULARITIES IN ASSESSING OR LEVYING TAXES, "DO NOT
APPLY WHERE THE STATUTE FOR THE ADDITION OF PROPERTY OMITTED FROM THE
ASSESSMENT IS NOT COMPLIED WITH."  129 N.J.L. P. 457. 

PETITIONER ARGUES THAT IT IS CLEAR FROM DUKE POWER CO. V. STATE
BOARD, SUPRA, THAT RESPONDENT HAD A REMEDY IN THE STATE TRIBUNALS FOR
FAILURE OF PETITIONER TO FOLLOW THE PROCEDURE REQUIRED BY THE NEW
JERSEY STATUTES AND THAT THE FEDERAL COURT SHOULD HAVE REQUIRED HER TO
PURSUE IT.  WE HAVE HELD THAT WHERE A FEDERAL CONSTITUTIONAL QUESTION
TURNS ON THE INTERPRETATION OF LOCAL LAW AND THE LOCAL LAW IS IN DOUBT,
THE PROPER PROCEDURE IS FOR THE FEDERAL COURT TO HOLD THE CASE UNTIL A
DEFINITE DETERMINATION OF THE LOCAL LAW CAN BE MADE BY THE STATE
COURTS.  RAILROAD COMMISSION V. PULLMAN CO., 312 U.S. 496; CHICAGO V.
FIELDCREST DAIRIES, 316 U.S. 168; SPECTOR MOTOR CO. V. MCLAUGHLIN, 323
U.S. 101.  THE LATTER CASE INVOLVED A SUIT IN WHICH THE
CONSTITUTIONALITY OF A CONNECTICUT TAX WAS CHALLENGED.  THERE WAS
UNCERTAINTY CONCERNING THE MEANING OF THE LOCAL LAW.  UNDER ONE
CONSTRUCTION THE CONSTITUTIONAL ISSUES WOULD FALL; AND IN ANY EVENT A
DECISION BY THE STATE COURTS WOULD CAUSE THE CONSTITUTIONAL ISSUES TO
BE FORMULATED IN AN AUTHORITATIVE RATHER THAN A SPECULATIVE WAY.  BUT
IT WAS CLEAR THAT THERE WAS AVAILABLE A STATE REMEDY TO WHICH THE
COMPLAINANT COULD RESORT ON THE REMAND OF THE CAUSE.  IN THE PRESENT
CASE IT APPEARS THAT RESPONDENT'S OPPORTUNITY TO APPEAL TO THE STATE
BOARD OF TAX APPEALS  FN8  HAD EXPIRED EVEN BEFORE THE DISTRICT COURT
RULED ON THE MOTION TO DISMISS N9.  AND IT IS NOT CLEAR THAT TODAY
RESPONDENT HAS OPEN ANY ADEQUATE REMEDY IN THE NEW JERSEY COURTS FOR
CHALLENGING THE ASSESSMENTS ON LOCAL LAW GROUNDS.  FN10  MOREOVER, DUKE
POWER CO. V. STATE BOARD, SUPRA, DECIDED SHORTLY BEFORE THE DISTRICT
COURT RENDERED JUDGMENT,  FN11  GAVE AN AUTHORITATIVE INTERPRETATION OF
THE LOCAL LAW.  HENCE, THE REASON FOR HOLDING THE CASE IN SPECTOR MOTOR
CO. V. MCLAUGHLIN, SUPRA, AND REMITTING THE COMPLAINANT TO THE STATE
COURTS FOR DETERMINATION OF THE LOCAL LAW QUESTION NO LONGER WAS
EXISTENT HERE. 

IT FOLLOWS A FORTIORI THAT THE BILL SHOULD NOT HAVE BEEN DISMISSED. 
AS STATED IN GREENE V. LOUISVILLE & I.R. CO., 244 U.S. 499, 520, "A
REMEDY AT LAW CANNOT BE CONSIDERED ADEQUATE, SO AS TO PREVENT EQUITABLE
RELIEF, UNLESS IT COVERS THE ENTIRE CASE MADE BY THE BILL IN EQUITY." 
THOUGH THE AVAILABILITY OF A STATE REMEDY ON THE LOCAL LAW QUESTION BE
ASSUMED TO EXIST, SO MUCH UNCERTAINTY SURROUNDS THE NEW JERSEY REMEDY
TO PROTECT THE TAXPAYER'S FEDERAL RIGHT THAT A REFUSAL TO DISMISS THE
BILL WAS A PROPER EXERCISE OF DISCRETION.  THUS, HOWEVER THE CASE MAY
BE VIEWED, THE EXCEPTIONAL CIRCUMSTANCES WHICH WE HAVE NOTED TAKE IT
OUT OF THE GENERAL RULE OF GREAT LAKES DREDGE & DOCK CO. V. HUFFMAN,
SUPRA.  THE DISTRICT COURT, THEREFORE, PROPERLY PROCEEDED TO DECIDE THE
CASE ON THE MERITS.  THAT IT PLACED ITS DECISION ON LOCAL LAW GROUNDS
IS NOT OBJECTIONABLE.  FOR IT IS WELL SETTLED THAT WHERE THE FEDERAL
COURT HAS JURISDICTION, IT MAY PASS ON THE WHOLE CASE AND AGREEABLY
WITH THE DESIRED PRACTICE DECIDE IT ON LOCAL LAW QUESTIONS, WITHOUT
REACHING THE CONSTITUTIONAL ISSUES.  SILER V. LOUISVILLE & N.R. CO.,
213 U.S. 175, 191, 193; GREENE V. LOUISVILLE & I.R. CO., SUPRA, P. 508;
CHICAGO G.W.R. CO. V. KENDALL, 266 U.S. 94, 97-98; RISTY V. CHICAGO,
R.I. & P.R. CO., 270 U.S. 378, 387; WAGGONER ESTATE V. WICHITA COUNTY,
273 U.S. 113, 116; HURN V. OURSLER, 289 U.S. 238, 243-248. 

PETITIONER MAKES AN EXTENDED ARGUMENT TO THE EFFECT THAT DUKE POWER
CO. V. STATE BOARD, SUPRA, IS NOT A CONTROLLING PRECEDENT ON THE LOCAL
LAW QUESTION ON WHICH THE DECISION BELOW TURNED.  ON SUCH QUESTIONS WE
PAY GREAT DEFERENCE TO THE VIEWS OF THE JUDGES OF THOSE COURTS "WHO ARE
FAMILIAR WITH THE INTRICACIES AND TRENDS OF LOCAL LAW AND PRACTICE." 
HUDDLESTON V. DWYER, 322 U.S. 232, 237.  WE ARE UNABLE TO SAY THAT THE
DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS ERRED IN APPLYING TO
THIS CASE THE RULE OF DUKE POWER CO. V. STATE BOARD, WHICH INVOLVED
CLOSELY ANALOGOUS FACTS.  AFFIRMED.    FN1  THE ASSESSMENTS CALL FOR
TAX PAYMENTS OF NEARLY $7,000,000 FOR EACH YEAR AS COMPARED WITH THE
TOWNSHIP'S BUDGET OF SOMETHING LIKE $97,000 ANNUALLY.  PRIOR TO THESE
ASSESSMENTS THE NET ASSESSED VALUATION FOR TAXATION OF ALL PROPERTY
ASSESSED, BOTH REAL AND PERSONAL, IN THE TOWNSHIP AMOUNTED TO
$3,117,863 FOR 1940 AND $3,139,020 FOR 1941.  THE RESULTING TAX RATE
WAS 3.12 PER CENT FOR 1940 AND 3.10 PER CENT FOR 1941.  THE ADDITIONAL
ASSESSMENTS AGAINST RESPONDENT APPARENTLY WOULD HAVE INCREASED THE
VALUATION OF THE TOWNSHIP TAX RATABLES BY $221,940,438 FOR EACH OF THE
TWO TAX YEARS, THOUGH IT WOULD NOT HAVE AFFECTED THE TAX RATES FOR
THOSE YEARS. 

FN2  STATE V. RANDOLPH, 25 N.J.L. 427, 431; STATE V. TAYLOR, 35
N.J.L. 184, 189; STATE V. KOSTER, 38 N.J.L. 308; STATE V. SEGOINE, 53
N.J.L. 339, 340, 21 A. 852, AFF'D 54 N.J.L. 212, 25 A. 963; CENTRAL R.
CO. V. STATE BOARD, 74 N.J.L. 1, 65 A. 244; ROYAL MFG. CO. V. BOARD OF
EQUALIZATION, 76 N.J.L. 402, 78 N.J.L. 337; PENNSYLVANIA COAL CO. V.
SADDLE RIVER, 96 N.J.L. 40, 43, 114 A. 157. 

FN3  DUKE POWER CO. V. HILLSBOROUGH TOWNSHIP, 20 N.J. MISC. 240, 243,
26 A.2D 713(REVERSED ON ANOTHER POINT, 129 N.J.L. 449, 30 A.2D 416);
SCHWARTZ V. ESSEX COUNTY BOARD, 129 N.J.L. 129, 132, 28 A.2D 482, AFF'D
130 N.J.L. 177, 32 A.2D 354. 

FN4  STAUBACH V. CITIES SERVICE OIL CO., 130 N.J.L. 157, 31 A.2D
804. 

FN5  POST V. ANDERSON, 111 N.J.L. 303, 168 A. 622; STAUBACH V. CITIES
SERVICE OIL CO., SUPRA NOTE 4. 

FN6  N.J. REV. STAT. SEC. 54: 3-20 PROVIDES IN PART, "ON THE WRITTEN
COMPLAINT OF THE COLLECTOR, OR ANY TAXPAYER OF THE TAXING DISTRICT OR
OF THE GOVERNING BODY THEREOF, THAT PROPERTY SPECIFIED HAS BEEN OMITTED
IN THE ASSESSMENT, THE COUNTY BOARD, ON FIVE DAYS' NOTICE IN WRITING TO
THE OWNER BY THE PARTY COMPLAINING, AND AFTER DUE EXAMINATION AND
HEARING, MAY ENTER THE OMITTED PROPERTY ON THE DUPLICATE BY JUDGMENT
RENDERED WITHIN TEN DAYS AFTER THE HEARING, A TRANSCRIPT WHEREOF SHALL
BE FURNISHED BY THE BOARD TO THE COLLECTOR, WHO SHALL AMEND HIS
DUPLICATE ACCORDINGLY." 

A DIFFERENT PROCEDURE IS PROVIDED BY SEC. 54: 3-20 FOR INCLUSION OF
PROPERTY "OMITTED BY THE ASSESSOR."  FOR A DISCUSSION OF THE DIFFERENCE
BETWEEN THE TWO TYPES OF ASSESSMENTS SEE DUKE POWER CO. V. STATE BOARD,
SUPRA, 129 N.J.L. PP. 452-455.  AT P. 455, THE COURT SAID:  "IF
PROPERTY IN A TAXING DISTRICT IS OMITTED BY THE ASSESSOR IT MUST BE
ADDED TO THE ASSESSMENT BEFORE APRIL 1ST.  ITS ADDITION DECREASES THE
AMOUNT OF TAXES TO BE RAISED SINCE THE RATABLES ARE THEREBY INCREASED. 
THE TAXPAYER IS NOT EMBARRASSED.  HE KNOWS HE WILL HAVE A TAX TO PAY
AND IS LIABLE ANYWAY EVEN IF THE PROPERTY WAS NOT INCLUDED IN THE
ASSESSMENT.  HOWEVER, IF PROPERTY IS ADDED TO THE ASSESSMENT AFTER THE
RATE HAS BEEN FIXED IT GIVES RISE TO A MUNICIPAL WINDFALL.  THERE IS NO
HARM IN THIS IF THERE WERE DUE NOTICE AND A FAIR HEARING BY THE COUNTY
BOARD AND A JUDICIAL DETERMINATION BY IT." 

FN7  SEC. 54: 4-58 PROVIDES: 

"NO TAX, ASSESSMENT OR WATER RATE IMPOSED OR LEVIED IN THIS STATE
SHALL BE SET ASIDE OR REVERSED IN ANY ACTION, SUIT OR PROCEEDING FOR
ANY IRREGULARITY OR DEFECT IN FORM, OR ILLEGALITY IN ASSESSING, LAYING
OR LEVYING ANY SUCH TAX, ASSESSMENT OR WATER RATE, OR IN THE PROCEEDING
FOR ITS COLLECTION IF THE PERSON AGAINST WHOM OR THE PROPERTY UPON
WHICH IT IS ASSESSED OR LAID IS, IN FACT, LIABLE TO TAXATION,
ASSESSMENT OR IMPOSITION OF THE WATER RATE, IN RESPECT TO THE PURPOSES
FOR WHICH THE TAX, ASSESSMENT OR RATE IS LEVIED, ASSESSED OR LAID." 

SEC. 54: 4-59 PROVIDES: 

"THE COURT IN WHICH ANY ACTION, SUIT OR PROCEEDING IS OR SHALL BE
PENDING TO REVIEW ANY SUCH TAX, ASSESSMENT OR WATER RATE SHALL AMEND
ALL IRREGULARITIES, ERRORS OR DEFECTS, AND MAY IF NECESSARY ASCERTAIN
AND DETERMINE THE SUM FOR WHICH THE PERSON OR PROPERTY WAS LEGALLY
LIABLE AND BY ORDER OR DECREE FIX THE AMOUNT THEREOF.  THE SUM SO FIXED
SHALL BE THE AMOUNT OF TAX, ASSESSMENT OR WATER RATE FOR WHICH THE
PERSON OR PROPERTY SHALL BE LIABLE." 

THE COURT IN DUKE POWER CO. V. STATE BOARD, SUPRA, 129 N.J.L. P. 457,
STATED THAT "THE REMEDIAL STATUTES WE DO NOT FIND TO HAVE BEEN A
SUBSTITUTE FOR PROPER ASSESSMENT.  THEIR APPLICATION HAS BEEN ONLY IN
INSTANCES WHERE PROPERTY HAS BEEN OMITTED BY THE ASSESSOR OR HAS BEEN
ASSESSED IN THE NAME OF ONE OTHER THAN THE TRUE OWNER." 

FN8  NINETY DAYS ARE ALLOWED.  STATE BOARD OF TAX APPEALS, RULE V
(C), CCH.  CORP.  TAX SERV. PAR. 89-505.  THE RESOLUTIONS OF THE COUNTY
BOARD ATTEMPTING TO MAKE THE ASSESSMENTS WERE ENTERED JUNE 26, 1941. 

FN9  THE PRESENT BILL WAS FILED IN JULY, 1941, THE ANSWER IN
SEPTEMBER, 1941, AND THE MOTION TO DISMISS IN NOVEMBER, 1941.  THE
ORDER DENYING THE MOTION TO DISMISS WAS MADE IN AUGUST, 1942. 

FN10  IT SEEMS THAT UNDER CERTAIN CIRCUMSTANCES CERTIORARI TO THE
SUPREME COURT MAY BE HAD IN LIEU OF AN APPEAL TO THE STATE BOARD OF TAX
APPEALS.  IT WAS HELD IN SCHWARTZ V. ESSEX COUNTY BOARD, SUPRA NOTE 3,
THAT LACK OF JURISDICTION OF THE COUNTY BOARD OR IRREGULARITY IN ITS
PROCEEDINGS MAY BE TESTED BY CERTIORARI.  130 N.J.L. P. 178.  AND SEE
STATE V. CLOTHIER, 30 N.J.L. 351.  BUT AS WE HAVE SEEN, NOTE 4 SUPRA,
IT IS A DISCRETIONARY WRIT. 

FN11  THAT CASE WAS DECIDED BY THE COURT OF ERRORS AND APPEALS ON
MARCH 9, 1944.  THE PRESENT CASE WAS DECIDED BY THE DISTRICT COURT ON
JULY 14, 1944. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :















ALLEN V. TRUST CO., 326 U.S. 630 


NO. 289.  ARGUED JANUARY 3, 4, 1946.  - DECIDED JANUARY 28, 1946.  - 149
F.2D 120, AFFIRMED. 


IN 1925, DECEDENT ESTABLISHED TWO SPENDTHRIFT TRUSTS FOR HIS CHILDREN,
TRANSFERRING SECURITIES TO EACH TRUST AND RESERVING THE POWER TO AMEND
WITH THE CONSENT OF THE TRUSTEE AND BENEFICIARY.  IN 1934 HE ADDED
SECURITIES TO EACH TRUST.  HE PAID GIFT TAXES ON THESE TRANSFERS. 
LEARNING IN 1937 THAT, UNDER A RECENT DECISION OF THIS COURT, THE
RESERVATION OF THE POWER TO AMEND BROUGHT THE CORPUS OF THE TRUST INTO
THE SETTLOR'S ESTATE FOR ESTATE TAX PURPOSES, HE RENOUNCED THE POWER TO
AMEND. HE DIED IN 1938 AT THE AGE OF 82.  THE COMMISSIONER OF INTERNAL
REVENUE INCLUDED THE CORPUS OF EACH TRUST IN HIS ESTATE AND COLLECTED
THE ESTATE TAX ON IT.  THE EXECUTORS SUED FOR A REFUND.  BOTH THE
DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS FOUND THAT DECEDENT
ESTABLISHED THE TRUSTS TO MEET THE NECESSITIES OF HIS CHILDREN BY
GIVING THEM PROPERTY FREED OF ALL CLAIMS, TAX OR OTHERWISE, AND THAT HE
RENOUNCED THE POWER TO AMEND IN ORDER TO ACCOMPLISH THE PURPOSE WHICH
HE ORIGINALLY HAD BUT WHICH HE LATER DISCOVERED HAD NOT BEEN ACHIEVED. 
HELD: 

1.  THOSE FINDINGS ARE SUFFICIENT TO OVERCOME THE STATUTORY
PRESUMPTION THAT THE RENOUNCEMENT OF THE POWER TO AMEND, BEING MADE
WITHIN TWO YEARS OF DECEDENT'S DEATH, WAS MADE IN CONTEMPLATION OF
DEATH WITHIN THE MEANING OF SEC. 302(D) OF THE REVENUE ACT OF 1926.  P.
635. 

2.  THE QUESTION WHETHER A DONOR'S DOMINANT MOTIVE IS ASSOCIATED WITH
LIFE, RATHER THAN WITH THE DISTRIBUTION OF PROPERTY IN CONTEMPLATION OF
DEATH, IS A QUESTION OF FACT IN EACH CASE.  P. 636. 

3.  WHERE THE QUESTION ARISES OUT OF A SERIES OF TRANSACTIONS ALL
RELATED TO THE SAME PURPOSE, IT IS NOT PROPER TO ISOLATE ONE
TRANSACTION FROM ALL THE OTHERS AND TREAT IT AS A WHOLLY INDEPENDENT
TRANSACTION.  P. 636. 

4.  WHERE THE DOMINANT PURPOSE OF A SERIES OF TRANSACTIONS IS TO
PROVIDE FOR THE DONOR'S CHILDREN, THE FACT THAT THE PURPOSE OF THE LAST
TRANSACTION IS TO RECTIFY AN ERROR WHICH WOULD HAVE SUBJECTED THE
CORPUS OF THE TRUST TO AN ESTATE TAX DOES NOT LEAD TO THE CONCLUSION
THAT IT WAS A TRANSACTION IN CONTEMPLATION OF DEATH WITHIN THE MEANING
OF SEC. 302(D) OF THE REVENUE ACT OF 1926.  P. 636. 

ALLEN, COLLECTOR OF INTERNAL REVENUE, V. TRUST COMPANY OF GEORGIA ET
AL., EXECUTORS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 700, TO REVIEW AFFIRMANCE OF A JUDGMENT, 55
F.SUPP.  269, AGAINST A COLLECTOR OF INTERNAL REVENUE FOR A REFUND OF
AN OVERPAYMENT OF AN ESTATE TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE DECEDENT, JACK J. SPALDING, DIED DECEMBER 8, 1938, AT THE AGE OF
82.  IN 1925 HE ESTABLISHED TWO SPENDTHRIFT TRUSTS - ONE FOR HIS
DAUGHTER SUZANNE AND ONE FOR HIS SON JACK - AND TRANSFERRED TO EACH
TRUST SECURITIES OF THE VALUE OF $50,000.  IN 1934 HE ADDED SECURITIES
TO EACH TRUST.  HE PAID GIFT TAXES ON THESE TRANSFERS.  WHEN HE DIED,
THE COMMISSIONER INCLUDED THE CORPUS OF EACH TRUST IN HIS ESTATE AND
COLLECTED THE ESTATE TAX ON IT.  THE EXECUTORS BROUGHT THIS SUIT FOR A
REFUND.  THE DISTRICT COURT FOUND THAT THE TRUSTS WERE ESTABLISHED
UNDER THE FOLLOWING CIRCUMSTANCES. 

SUZANNE AND HER HUSBAND, BEFORE 1925, HAD ENGAGED IN A BUSINESS
VENTURE WHICH HAD ENDED IN DISASTER.  BOTH HAD LOST ALL THEIR PROPERTY
AND WERE HEAVILY INDEBTED.  SUZANNE'S HUSBAND WAS WITHOUT MEANS TO
SUPPORT HER AND THEIR FIVE CHILDREN.  JACK LIKEWISE HAD ENGAGED IN AN
UNSUCCESSFUL BUSINESS VENTURE.  HE WAS NOT EARNING ENOUGH TO SUPPORT
HIS FAMILY.  THE GIFTS WERE MADE BY THE DECEDENT TO RELIEVE THE NEEDS
AND TO MAKE SECURE THE MAINTENANCE OF HIS CHILDREN AND THE EDUCATION
AND SUPPORT OF HIS GRANDCHILDREN.  THE GIFTS WERE PLACED IN TRUST
BECAUSE SUZANNE AND JACK HAD LOST PRIOR GIFTS IN UNSUCCESSFUL
PROJECTS.  THE DECEDENT DESIRED TO PROTECT THEM AGAINST THEIR OWN
BUSINESS MISADVENTURES AND NOT TO RETAIN ANY BENEFIT, DIRECTLY OR
INDIRECTLY, TO HIMSELF.  HE MADE THE GIFTS TO MEET THEIR NECESSITIES
AND DESIRED TO SET ASIDE THE TRUST PROPERTY, FREED FROM ALL CLAIMS, TAX
OR OTHERWISE.  THE DECEDENT, HOWEVER, RETAINED UNDER THE TRUSTS A POWER
TO AMENDED WITH THE CONSENT OF THE TRUSTEE AND BENEFICIARY.  FN1  AT
THE TIME THE TRUSTS WERE ESTABLISHED IN 1925 AND ENLARGED IN 1934 HE
BELIEVED THAT THE GIFTS WERE COMPLETE AND ABSOLUTE AND INTENDED THEM TO
BE SUCH.  HE WAS A LAWYER AND BELIEVED THAT UNDER THE FEDERAL LAW THE
RESERVATION OF SUCH A POWER TO AMEND WOULD NOT REQUIRE THE INCLUSION IN
HIS GROSS ESTATE AT HIS DEATH OF THE VALUE OF THE CORPUS OF EACH
TRUST.  BUT IN 1935 HELVERING V. CITY BANK FARMERS TRUST CO., 296 U.S.
85, WAS DECIDED, HOLDING THAT THE RESERVATION OF A POWER TO AMEND
BROUGHT THE CORPUS OF THE TRUST INTO THE SETTLOR'S ESTATE, EVEN THOUGH
THE POWER COULD NOT BE EXERCISED BY THE SETTLOR ALONE.  UPON BEING
ADVISED IN 1937 THAT THE GIFTS REMAINED A PART OF HIS ESTATE FOR ESTATE
TAX PURPOSES, DECEDENT EXECUTED AN INSTRUMENT RENOUNCING THE POWER TO
AMEND THE TRUSTS.  THIS WAS DONE SO THAT THE TRUSTS WOULD NOT BE A PART
OF HIS ESTATE FOR ESTATE TAX PURPOSES.  AT THAT TIME, AS WELL AS IN
1925 AND 1934, THE DECEDENT WAS IN AVERAGE GOOD HEALTH FOR A MAN OF HIS
AGE.  HE RELEASED THE POWER TO AMEND SO AS TO PUT THE TRUSTS IN THE
CONDITION HE HAD THOUGHT THEY WERE IN WHEN HE MADE THEM.  THE RELEASE
WAS DESIGNED TO CARRY OUT HIS ORIGINAL PURPOSE IN SETTING ASIDE THE
PROPERTY FREED FROM ALL CLAIMS, TAX OR OTHERWISE.  IN 1925, 1934, AND
1937, HE DID NOT ENTERTAIN THOUGHTS OF DEATH EXCEPT THE GENERAL
EXPECTATION OF DEATH THAT ALL ENTERTAIN. 

THE DISTRICT COURT CONCLUDED THAT NEITHER THE ESTABLISHMENT OR THE
ENLARGEMENT OF THE TRUSTS, NOR THE RELEASE OF THE POWER TO AMEND WAS
MADE IN CONTEMPLATION OF DEATH.  ACCORDINGLY, IT RENDERED JUDGMENT FOR
RESPONDENTS.  55 F.SUPP.  269.  THE CIRCUIT COURT OF APPEALS SUSTAINED
THE FINDINGS OF THE DISTRICT COURT AND AFFIRMED THE JUDGMENT.  149 F.2D
120.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE OF AN APPARENT CONFLICT BETWEEN THAT DECISION AND CASES
FROM OTHER CIRCUITS.  FN2 

IT IS CLEAR THAT THE CORPUS OF EACH TRUST WAS PROPERLY INCLUDED IN
DECEDENT'S GROSS ESTATE IF HE RELEASED THE POWER TO AMEND IN
CONTEMPLATION OF HIS DEATH.  FN3  AND THERE IS A PRESUMPTION THAT HE
DID SO BECAUSE THE RELEASE WAS MADE LESS THAN TWO YEARS BEFORE HIS
DEATH.  FN4 

IT WAS SAID IN UNITED STATES V. WELLS, 283 U.S. 102, 117, THAT A GIFT
IS MADE IN CONTEMPLATION OF DEATH WITHIN THE MEANING OF THE ESTATE TAX
LAW IF "THE MOTIVE WHICH INDUCES" IT IS "OF THE SORT WHICH LEADS TO
TESTAMENTARY DISPOSITION."  PETITIONER'S ARGUMENT IS THAT A PURPOSE TO
AVOID THE ESTATE TAX IS SUCH A MOTIVE.  IT IS A MOTIVE WHICH WOULD
CAUSE A DECEDENT TO MAKE AN INTER VIVOS TRANSFER RATHER THAN A WILL. 
SINCE THE PURPOSE OF THE CONTEMPLATION OF DEATH PROVISION WAS TO REACH
SUBSTITUTES FOR TESTAMENTARY DISPOSITIONS IN ORDER TO PREVENT EVASIONS
OF THE TAX (UNITED STATES V. WELLS, SUPRA, PP. 116-117), THE STATUTE IS
SATISFIED, IT IS SAID, WHERE FOR ANY REASON THE DECEDENT BECOMES
CONCERNED ABOUT WHAT WILL HAPPEN TO HIS PROPERTY AT HIS DEATH AND AS A
RESULT TAKES ACTION TO CONTROL OR IN SOME MANNER AFFECT ITS
DEVOLUTION. 

THAT IS A CORRECT STATEMENT OF THE GOVERNING PRINCIPLE FOR IT
PRESUMES THE EXISTENCE OF THE REQUISITE MOTIVE.  THE TRANSFER IS MADE
IN CONTEMPLATION OF DEATH IF THE THOUGHT OF DEATH IS THE "IMPELLING
CAUSE OF THE TRANSFER."  CITY BANK FARMERS TRUST CO. V. MCGOWAN, 323
U.S. 594, 599.  THE TRANSFER MAY BE SO MOTIVATED, EVEN THOUGH THE
DECEDENT HAD NO IDEA THAT HE WAS ABOUT TO DIE.  UNITED STATES V. WELLS,
SUPRA, PP. 117-118.  ON THE OTHER HAND, EVERY MAN MAKING A GIFT KNOWS
THAT WHAT HE GIVES AWAY TODAY WILL NOT BE INCLUDED IN HIS ESTATE WHEN
HE DIES.  ALL SUCH GIFTS PLAINLY ARE NOT MADE IN CONTEMPLATION OF DEATH
IN THE STATUTORY SENSE.  MANY GIFTS, EVEN TO THOSE WHO ARE THE NATURAL
AND APPROPRIATE OBJECTS OF THE DONOR'S BOUNTY, ARE MOTIVATED BY
"PURPOSES ASSOCIATED WITH LIFE, RATHER THAN WITH THE DISTRIBUTION OF
PROPERTY IN ANTICIPATION OF DEATH."  UNITED STATES V. WELLS, SUPRA, P.
118.  THOSE MOTIVES COVER A WIDE RANGE.  SEE 1 PAUL, FEDERAL ESTATE &
GIFT TAXATION (1942) SECS. 6.09 ET SEQ. "THERE MAY BE THE DESIRE TO
RECOGNIZE SPECIAL NEEDS OR EXIGENCIES OR TO DISCHARGE MORAL
OBLIGATIONS.  THE GRATIFICATION OF SUCH DESIRES MAY BE A MORE
COMPELLING MOTIVE THAN ANY THOUGHT OF DEATH."  UNITED STATES V. WELLS,
SUPRA, P. 119.  WHETHER SUCH A DESIRE WAS THE DOMINANT, CONTROLLING OR
IMPELLING MOTIVE IS A QUESTION OF FACT IN EACH CASE.  WE DO NOT HAVE
HERE THE TYPE OF PROBLEM PRESENTED IN MCCAUGHN V. REAL ESTATE LAND CO.,
297 U.S. 606, WHERE THE APPELLATE COURT UNDERTOOK TO REVERSE THE TRIAL
COURT ON A REVIEW OF THE EVIDENCE.  HERE TWO COURTS HAVE RESOLVED THAT
QUESTION OF FACT IN FAVOR OF RESPONDENTS.  THEY HAVE FOUND, AS WE HAVE
SAID, THAT MR. SPALDING ESTABLISHED THE TRUSTS TO MEET THE NECESSITIES
OF HIS CHILDREN BY GIVING THEM PROPERTY, FREED OF ALL CLAIMS, TAX OR
OTHERWISE; AND THAT IN 1937 HE RELEASED THE POWER TO AMEND TO
ACCOMPLISH THE PURPOSE WHICH HE ORIGINALLY HAD, BUT WHICH HE LATER
DISCOVERED HAD NOT BEEN ACHIEVED.  THOSE FINDINGS ARE SUFFICIENT TO
OVERCOME THE STATUTORY PRESUMPTION THAT THE GIFTS, BEING MADE WITHIN
TWO YEARS OF MR. SPALDING'S DEATH, WERE MADE IN CONTEMPLATION OF
DEATH.  THOSE FINDINGS, BEING CONCURRENT FINDINGS OF THE TWO LOWER
COURTS, WILL BE ACCEPTED HERE WITHOUT REEXAMINATION OF THE EVIDENCE. 
SEE UNITED STATES V. O'DONNELL, 303 U.S. 501, 508, AND CASES CITED. 

IT IS SAID, HOWEVER, THAT THOSE FINDINGS REST ON A MISCONCEPTION OF
THE LAW, SINCE ADMITTEDLY THE DECEDENT IN 1937 RELEASED THE POWER TO
AMEND SO AS TO AVOID PAYING AN ESTATE TAX ON THE PROPERTY INCLUDED
UNDER THE TRUSTS.  BUT THAT IS TO ISOLATE THE RELEASE FROM ALL THAT
PRECEDED AND TO TREAT IT AS A WHOLLY INDEPENDENT TRANSACTION.  THIS IS
NOT A CASE WHERE A SETTLOR, HAVING MADE ONE PLAN FOR THE DISPOSITION OF
HIS PROPERTY, LATER MAKES A DIFFERENT ONE TO AVOID DEATH TAXES.  MR.
SPALDING, IN MAKING THE RELEASE, DID WHAT HE ORIGINALLY INTENDED TO DO
TO MAKE COMPLETE AND ABSOLUTE GIFTS TO HIS CHILDREN, FREED OF ALL
CLAIMS, INCLUDING TAXES.  RETENTION OF THE POWER TO AMEND WOULD HAVE
BROUGHT THE TRUST PROPERTY INTO MR. SPALDING'S ESTATE AND SUBJECTED IT
TO THE ESTATE TAX LIEN.  FN5  HIS PURPOSE TO TAKE CARE OF HIS CHILDREN,
COME WHAT MAY, MIGHT THUS HAVE BEEN THWARTED OR IMPAIRED.  HE GUESSED
WRONG ON THE LAW, WHEN HE RETAINED THE POWER TO AMEND. WHEN HE
RECTIFIED THE ERROR, HE WAS IN GOOD FAITH, ENDEAVORING TO COMPLETE HIS
ORIGINAL PROJECT, NOT TO GIVE HIS CHILDREN MORE THAN HE AT FIRST
INTENDED IN ORDER TO SAVE TAXES.  WHAT HE DID IN 1937 WAS MERELY TO
ACCOMPLISH BY AN ADDITIONAL STEP WHAT HE ASSUMED HE HAD ALREADY DONE. 
THE FINDINGS MAKE PLAIN THAT THE ESTABLISHMENT OF THE TRUSTS IN 1925,
THEIR ENLARGEMENT IN 1934, AND THE RELEASE OF THE POWER TO AMEND IN
1937 WERE PARTS OF ONE INTEGRATED TRANSACTION.  THAT IS A FINDING OF
FACT WHICH WE ARE NOT AT LIBERTY TO DISTURB ON THIS RECORD.  ON THESE
FACTS, HIS DESIRE TO AVOID DEATH TAXES DOES NO MORE THAN ESTABLISH THAT
HE DID NOT WANT HIS PLAN TO UNDERWRITE THE NECESSITIES OF HIS CHILDREN
AND GRANDCHILDREN JEOPARDIZED.  HIS DESIRE TO MAKE ADEQUATE PROVISION
FOR THEM REMAINED THE DOMINANT MOTIVE, OR SO THE TRIERS OF FACT COULD
PROPERLY FIND.  AFFIRMED. 

FN1  "DURING MY LIFE, BY THE UNANIMOUS CONSENT OF THE SAID TRUSTEE,
MY SAID DAUGHTER (SON) AND OF MYSELF, THE TERMS OF THIS AGREEMENT MAY
BE AMENDED, CHANGED, ENLARGED OR LIMITED, BUT IN NO EVENT SHALL THE
CONVEYANCE OF SAID STOCK TO THE PARTY OF THE SECOND PART BE REVOKED." 

FN2  CF. FARMERS' LOAN & TRUST CO. V. BOWERS, 68 F.2D 916; FARMERS'
LOAN & TRUST CO. V. BOWERS, 98 F.2D 794; FIRST TRUST & DEPOSIT CO. V.
SHAUGHNESSY, 134 F.2D 940; COMMONWEALTH TRUST CO. V. DRISCOLL, 50
F.SUPP.  949, AFF'D 137 F.2D 653.  AND SEE PAVENSTEDT, TAXATION OF
TRANSFERS IN CONTEMPLATION OF DEATH, 54 YALE L. JOURN.  70; HARRISS,
GIFT TAXATION IN THE UNITED STATES (1940) CH. II. 

FN3  SEC. 302(D)(1) OF THE REVENUE ACT OF 1926, 44 STAT. 9, AS
AMENDED BY SEC. 401 OF THE REVENUE ACT OF 1934, 48 STAT. 680, READS AS
FOLLOWS: 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR
PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED - 

     .      .         .         .         . 

"(D)(1)  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT
HAS AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, WHERE THE
ENJOYMENT THEREOF WAS SUBJECT AT THE DATE OF HIS DEATH TO ANY CHANGE
THROUGH THE EXERCISE OF A POWER, EITHER BY THE DECEDENT ALONE OR IN
CONJUNCTION WITH ANY PERSON, TO ALTER, AMEND, OR REVOKE, OR WHERE THE
DECEDENT RELINQUISHED ANY SUCH POWER IN CONTEMPLATION OF HIS DEATH,
EXCEPT IN CASE OF A BONA FIDE SALE FOR AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH." 

ARTICLE 16 OF TREASURY REGULATIONS 80(1937 ED.)  AS AMENDED BY T.D.
4966, 1940-1 CUM. BULL.  220, PROVIDES IN PART: 

"THE PHRASE 'CONTEMPLATION OF DEATH,' AS USED IN THE STATUTE, DOES
NOT MEAN, ON THE ONE HAND, THAT GENERAL EXPECTATION OF DEATH SUCH AS
ALL PERSONS ENTERTAIN, NOR, ON THE OTHER, IS ITS MEANING RESTRICTED TO
AN APPREHENSION THAT DEATH IS IMMINENT OR NEAR.  A TRANSFER IN
CONTEMPLATION OF DEATH IS A DISPOSITION OF PROPERTY PROMPTED BY THE
THOUGHT OF DEATH (THOUGH IT NEED NOT BE SOLELY SO PROMPTED).  A
TRANSFER IS PROMPTED BY THE THOUGHT OF DEATH IF IT IS MADE WITH THE
PURPOSE OF AVOIDING THE TAX, OR AS A SUBSTITUTE FOR A TESTAMENTARY
DISPOSITION OF THE PROPERTY, OR FOR ANY OTHER MOTIVE ASSOCIATED WITH
DEATH.  THE BODILY AND MENTAL CONDITION OF THE DECEDENT AND ALL OTHER
ATTENDANT FACTS AND CIRCUMSTANCES ARE TO BE SCRUTINIZED TO DETERMINE
WHETHER OR NOT SUCH THOUGHT PROMPTED THE DISPOSITION." 

FN4  SEC. 302(D)(3) PROVIDES: 

"THE RELINQUISHMENT OF ANY SUCH POWER, NOT ADMITTED OR SHOWN TO HAVE
BEEN IN CONTEMPLATION OF THE DECEDENT'S DEATH, MADE WITHIN TWO YEARS
PRIOR TO HIS DEATH WITHOUT SUCH A CONSIDERATION AND AFFECTING THE
INTEREST OR INTERESTS (WHETHER ARISING FROM ONE OR MORE TRANSFERS OR
THE CREATION OF ONE OR MORE TRUSTS) OF ANY ONE BENEFICIARY OF A VALUE
OR AGGREGATE VALUE, AT THE TIME OF SUCH DEATH, IN EXCESS OF $5,000,
THEN, TO THE EXTENT OF SUCH EXCESS, SUCH RELINQUISHMENT OR
RELINQUISHMENTS SHALL, UNLESS SHOWN TO THE CONTRARY, BE DEEMED TO HAVE
BEEN MADE IN CONTEMPLATION OF DEATH WITHIN THE MEANING OF THIS TITLE." 

FN5  SEE INT. REV. CODE SEC. 827, 53 STAT. 128, 26 U.S.C. SEC. 827. 
IT WAS HELD IN HIGLEY V. COMMISSIONER, 69 F.2D 160, THAT THE PERSONAL
LIABILITY OF TRANSFEREES DID NOT EXTEND TO THE BENEFICIARIES UNDER A
TRUST. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












U.S. V. NEW YORK TEL. CO., 326 U.S. 638 


NO. 55.  ARGUED NOVEMBER 13, 14, 1945.  - DECIDED JANUARY 28, 1946.  -
56 F.SUPP.  932, REVERSED. 


PROPERTY SOLD TO THE APPELLEE TELEPHONE COMPANY BY ITS PARENT
CORPORATION WAS ENTERED ON APPELLEE'S BOOKS AT "STRUCTURAL VALUE," AN
AMOUNT CONSIDERABLY IN EXCESS OF THE "ORIGINAL COST" OF THE PROPERTY TO
THE PARENT.  THEREAFTER, THE APPELLEE DID NOT APPLY SPECIAL
DEPRECIATION RATES TO THIS PROPERTY ALTHOUGH AT THE TIME OF THE SALE IT
HAD A RELATIVELY SHORT REMAINING LIFE.  AT THE TIME OF THE ORIGINAL
ENTRIES, APPELLEE WAS SUBJECT TO THE ACCOUNTING REGULATIONS OF THE
INTERSTATE COMMERCE COMMISSION.  SUBSEQUENTLY THE FEDERAL
COMMUNICATIONS COMMISSION, UNDER THE COMMUNICATIONS ACT, ORDERED THE
APPELLEE TO CHARGE TO SURPLUS THE DIFFERENCE BETWEEN THE "STRUCTURAL
VALUE" AND THE "ORIGINAL COST" OF THE PROPERTY, LESS RELATED
DEPRECIATION, AND TO MAKE APPROPRIATE CONCURRENT ENTRIES IN OTHER
ACCOUNTS.  AT THE TIME OF THIS ORDER, SOME OF THE PROPERTY IN QUESTION
HAD BEEN RETIRED.  HELD: 

1.  IT IS UNNECESSARY TO DETERMINE WHETHER THE ORIGINAL ENTRIES IN
APPELLEE'S BOOKS WERE IN CONFORMITY WITH THE SYSTEM OF ACCOUNTS
PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION, SINCE THE PRINCIPAL
FOUNDATION OF THE ORDER WAS THAT THE APPELLEE WAS SUBJECT UNDER THE
COMMUNICATIONS ACT TO THE REQUIREMENT OF RESTATING ITS ACCOUNTS ON THE
BASIS OF ORIGINAL COST.  P. 647. 

2.  IT WAS WITHIN THE POWER OF THE COMMUNICATIONS COMMISSION TO ORDER
A RECLASSIFICATION OF THE ENTRIES AS TO THAT PART OF THE PROPERTY WHICH
HAD BEEN RETIRED AS WELL AS TO THAT WHICH HAD NOT.  P. 648. 

3.  RATES ESTABLISHED UNDER THE "GROUP METHOD" OF DEPRECIATION ARE
NOT PROPERLY APPLIED TO PROPERTY WHICH IS KNOWN NOT TO HAVE AS LONG AN
EXPECTED SERVICEABLE LIFE AS PROPERTY OF THE SAME SORT PURCHASED NEW. 
P. 650. 

4.  TO SHOW SEPARATELY THE AMOUNT BY WHICH THE PRICE PAID BY THE
ACCOUNTING COMPANY FOR PROPERTY NOW IN SERVICE EXCEEDED THE ORIGINAL
COST OF THAT PROPERTY IS NOT THE SOLE PURPOSE OF ORIGINALCOST
ACCOUNTING.  UNDER THAT SYSTEM THE INFLATION IN ACCOUNTS MAY BE NOT
ONLY SEGREGATED BUT ALSO WRITTEN OFF.  P. 651. 

5.  THE ORDER OF THE COMMISSION DOES NOT CONTRAVENE THE STIPULATION
IN AMERICAN TELEPHONE & TELEGRAPH CO. V. UNITED STATES, 299 U.S. 232. 
P. 652. 

A FINDING BY THE COMMUNICATIONS COMMISSION, AFTER A FULL HEARING AND
ON EVIDENCE WHICH SUSTAINS THE FINDING, THAT PART OF THE COST ON THE
BOOKS OF A COMPANY IS DUE TO A PROFIT MADE BY A PARENT CORPORATION UPON
A SALE OF PROPERTY TO THE COMPANY, CONSTITUTES A DETERMINATION "AFTER A
FAIR CONSIDERATION OF ALL THE CIRCUMSTANCES" THAT THERE HAS BEEN NO
TRUE INVESTMENT BUT ONLY A "FICTITIOUS OR PAPER INCREMENT."  P. 653. 

6.  THE COMMUNICATIONS ACT IMPOSES UPON THE COMPANY, AND NOT UPON THE
COMMISSION, THE BURDEN OF JUSTIFYING ACCOUNTING ENTRIES.  P. 654. 

7.  AN ACCOUNTING ORDER OF THE COMMUNICATIONS COMMISSION MAY NOT BE
SET ASIDE ON JUDICIAL REVIEW UNLESS IT IS SO ENTIRELY AT ODDS WITH
FUNDAMENTAL PRINCIPLES OF CORRECT ACCOUNTING AS TO BE THE EXPRESSION OF
A WHIM RATHER THAN AN EXERCISE OF JUDGMENT.  P. 655. 

UNITED STATES ET AL. V. NEW YORK TELEPHONE CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A JUDGMENT OF A DISTRICT COURT OF THREE JUDGES, WHICH
ENJOINED THE ENFORCEMENT OF AN ORDER OF THE FEDERAL COMMUNICATIONS
COMMISSION. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS NEW QUESTIONS OF "ORIGINAL COST" ACCOUNTING, WHICH
ARISE FROM AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION REQUIRING
READJUSTMENTS IN APPELLEE'S ACCOUNTS.  A DETAILED STATEMENT OF THE
FACTS IS NECESSARY TO AN UNDERSTANDING OF THE ISSUES.  BUT THE SHORT
EFFECT OF THE CONTROVERSY IS THAT THE COMMISSION HAS REQUIRED THE
APPELLEE, NEW YORK TELEPHONE COMPANY, TO MAKE CHARGES OF SOME
$4,166,000 TO SURPLUS, WITH CORRESPONDING CREDITS TO OTHER ACCOUNTS;
THE ULTIMATE EFFECT BEING SUBSTANTIALLY TO COMPEL THE ELIMINATION OF SO
CALLED WRITE-UPS FROM THE COMPANY'S ACCOUNTS IN ORDER TO BRING THEM, TO
THIS EXTENT, INTO CONFORMITY WITH THE COMMISSION'S UNIFORM SYSTEM OF
ACCOUNTS, WHICH IS BASED UPON "ORIGINAL COST."  THE ATTACKED ENTRIES
WERE MADE IN 1925, 1926, 1927 AND 1928, PRIOR TO ENACTMENT OF THE
FEDERAL COMMUNICATIONS ACT, UPON ACQUISITION BY APPELLEE OF BUSINESS
AND PROPERTY FROM ITS AFFILIATE, AMERICAN TELEPHONE AND TELEGRAPH
COMPANY.  THE CASE EMBODIES A RATHER LONG DELAYED CHAPTER OF THE BROAD
CONTROVERSY PRESENTED IN AMERICAN TELEPHONE & TELEGRAPH CO. V. UNITED
STATES, 299 U.S. 232, TO BE DISCUSSED LATER. 

FOR PRELIMINARY PURPOSES IT IS ENOUGH TO SAY THAT THE APPELLEE
QUESTIONS THE COMMISSION'S POWER TO MAKE THE ORDER IN ISSUE AND A
DISTRICT COURT, COMPOSED OF THREE JUDGES, HAS PERMANENTLY ENJOINED ITS
EXECUTION.  56 F.SUPP.  932.  FROM THAT JUDGMENT THIS APPEAL HAS
FOLLOWED. 

WE TURN TO THE FACTS BEFORE UNDERTAKING TO STATE THE ISSUES MORE
PRECISELY.  APPELLEE, THE NEW YORK TELEPHONE COMPANY, IS A SUBSIDIARY
OF THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY, WHICH OWNS ALL ITS
COMMON STOCK.  SINCE ITS INCORPORATION IN 1896 APPELLEE HAS ENGAGED IN
THE BUSINESS OF FURNISHING INTRASTATE AND INTERSTATE TELEPHONE SERVICE
TO THE PUBLIC IN THE STATES OF NEW YORK AND CONNECTICUT.  PRIOR TO
1925, FOR HISTORICAL REASONS, AMERICAN ALSO HAD FURNISHED INTRASTATE
TOLL SERVICE BETWEEN CERTAIN POINTS IN NEW YORK STATE; BUT IN THAT
YEAR, AS PART OF ITS PLAN TO WITHDRAW FROM ALL SUCH BUSINESS, AMERICAN
TRANSFERRED ITS INTRASTATE TOLL BUSINESS IN NEW YORK STATE TO THE
APPELLEE. 

IN CONNECTION WITH THIS TRANSACTION OCCURRED THE FOUR TRANSFERS OF
PROPERTY, THE ACCOUNTING FOR WHICH NOW CONCERNS US.  IN NOVEMBER, 1925,
SEPTEMBER, 1926, AND DECEMBER, 1928, APPELLEE PURCHASED FROM AMERICAN
CERTAIN TOLL PLANT CONSISTING OF PROPERTY SUCH AS POLES, CROSSARMS,
GUYS AND ANCHORS, AERIAL WIRE AND CABLE, UNDERGROUND CABLE, LOADING
COILS, CONDUIT, AND RIGHT OF WAY.  THIS PROPERTY WAS NEEDED TO HANDLE
THE ADDITIONAL INTRASTATE BUSINESS WHICH HAD BEEN TRANSFERRED TO IT.
MUCH OF THE PROPERTY SO ACQUIRED WAS IN THE FORM OF AN ADDITIONAL
INTEREST IN TOLL PLANT WHICH, PRIOR TO THESE TRANSFERS, HAD BEEN
JOINTLY OWNED BY AMERICAN AND NEW YORK. 

THE FOURTH SALE TOOK PLACE IN 1927.  BEFORE THAT TIME AMERICAN HAD
RETAINED OWNERSHIP OF THREE ESSENTIAL PARTS, COLLECTIVELY CALLED "THE
INSTRUMENTS" - THE TRANSMITTER, RECEIVER AND INDUCTION COIL - OF THE
TELEPHONE STATIONS USED BY SUBSCRIBERS.  AMERICAN HAD FURNISHED AND
MAINTAINED THESE INSTRUMENTS UNDER A CONTRACT BETWEEN IT AND NEW YORK
UNDER WHICH NEW YORK PAID IT A SPECIFIED PERCENTAGE OF ITS GROSS
REVENUES.  IN DECEMBER, 1927, AMERICAN SOLD TO NEW YORK THE INSTRUMENTS
THEN IN THE SERVICE OR SUPPLIES OF NEW YORK. 

NONE OF THESE TRANSFERS OF PROPERTY CHANGED THE PHYSICAL CHARACTER OF
THE PLANT OR THE SERVICE RENDERED TO THE PUBLIC.  THE SOLE EFFECTS WERE
TO SHIFT CERTAIN OPERATING COSTS OF AMERICAN AND CERTAIN FIXED CHARGES
AND TAXES CONNECTED WITH THE OWNERSHIP OF THE PROPERTY TO NEW YORK AND
TO ELIMINATE NEW YORK'S OBLIGATION TO MAKE PAYMENTS TO AMERICAN FOR USE
OF "THE INSTRUMENTS"; FOR THE REST, AS THE NEW YORK PUBLIC SERVICE
COMMISSION DESCRIBED THE TRANSFER, IT WAS "A BOOKKEEPING TRANSACTION,
WITH NO CHANGE IN ULTIMATE OWNERSHIP, IN LOCATION, OR IN USE OF THE
...  PROPERTY, BUT REFLECTING ONLY A REVISED BUSINESS RELATIONSHIP
BETWEEN AFFILIATED CORPORATIONS."  FN1 

AMERICAN AND NEW YORK AGREED THAT THE PURCHASE PRICE OF THE TOLL
PLANT WAS TO BE AN AMOUNT EQUAL TO ITS "STRUCTURAL VALUE."  AS DEFINED
BY THE UNIFORM SYSTEM OF ACCOUNTS FOR TELEPHONE COMPANIES (INSTRUCTION
13) OF THE INTERSTATE COMMERCE COMMISSION, THIS WAS "THE ESTIMATED COST
OF REPLACEMENT OR REPRODUCTION LESS DETERIORATION TO THE THEN EXISTING
CONDITIONS THROUGH WEAR AND TEAR, OBSOLESCENCE, AND INADEQUACY."  A
FIELD INSPECTION AND AN APPRAISAL OF THE PROPERTY WERE MADE BY
ENGINEERS, AND APPELLEE PAID TO AMERICAN A TOTAL OF $5,973,441.47 FOR
THE TOLL PLANT.  THE PURCHASE PRICE OF THE INSTRUMENTS TRANSFERRED IN
1927 WAS $6,661,238.91.  THIS WAS BASED ON THE AVERAGE PRICE CHARGED
AMERICAN BY THE WESTERN ELECTRIC COMPANY, THE MANUFACTURER AND ALSO A
SUBSIDIARY OF AMERICAN, DURING THE FIRST NINE MONTHS OF 1927, LESS A
TWENTY PER CENT ALLOWANCE TO REFLECT THE THEN EXISTING CONDITION OF THE
INSTRUMENTS. 

THE TABLES SET OUT IN THE MARGIN SHOW THE ACCOUNTING TREATMENT OF
THESE TRANSFERS AT THE TIME THEY OCCURRED.  FN2  AS THE TABLES
DISCLOSE, THE "PROFIT" TO AMERICAN, THAT IS, THE DIFFERENCE BETWEEN THE
NET BOOK COST TO IT AND THE RECORD BOOK COST TO NEW YORK, WAS
$4,166,510.57.  THIS AMOUNT AMERICAN CREDITED TO SURPLUS ACCOUNTS AS
PROFIT ON THE TRANSACTIONS. 

THIS "PROFIT," OF COURSE, ARISES FROM THE FACT THAT NEW YORK IN
MAKING ITS ACCOUNTING ENTRIES IGNORED THE ORIGINAL COST TO AMERICAN AND
THE DEPRECIATION WHICH HAD ACCRUED ON THE BOOKS OF AMERICAN UP TO THE
TIME OF TRANSFER, AND ENTERED SOLELY THE ACTUAL PRICE PAID BY IT FOR
THE PROPERTIES.  IT DID NOT, SO TO SPEAK, "FOLD IN" THE NET BOOK COST
TO AMERICAN. 

HAVING SET DOWN THESE PROPERTIES ON ITS BOOKS AT THE PRICE IT PAID TO
THE PARENT CORPORATION FOR THEM, NEW YORK THEN APPLIED WHAT IT CALLS
THE "GROUP METHOD" OF DEPRECIATION.  FN3  UNDER THIS METHOD SPECIAL
DEPRECIATION RATES WERE NOT APPLIED TO THE PROPERTY IN QUESTION,
DESPITE THE FACT THAT IT HAD A RELATIVELY SHORT REMAINING LIFE. 
INSTEAD THE CURRENT DEPRECIATION RATES APPLICABLE TO SIMILAR CLASSES OF
PLANT WERE APPLIED AS LONG AS THE PROPERTY REMAINED IN SERVICE.  AS
PORTIONS OF THE PROPERTY WERE RETIRED, THEY WERE WRITTEN OUT OF THE
PLANT ACCOUNT AT THE AMOUNTS AT WHICH THEY HAD BEEN RECORDED THEREIN,
THAT IS, AT THE STRUCTURAL VALUE; AND DEBITS OF CORRESPONDING AMOUNTS,
LESS ALLOWANCE FOR SALVAGE, WERE CHARGED CONCURRENTLY TO THE
DEPRECIATION OR AMORTIZATION RESERVE. 

ON JANUARY 1, 1937, THE UNIFORM SYSTEM OF ACCOUNTS OF THE FEDERAL
COMMUNICATIONS COMMISSION  FN4 FOR CLASS A AND CLASS B TELEPHONE
COMPANIES BECAME EFFECTIVE  FN5  AND APPLICABLE TO NEW YORK.  UNDER
THIS SYSTEM TELEPHONE COMPANIES WERE OBLIGED TO ESTABLISH OR RECLASSIFY
THEIR INVESTMENT ACCOUNTS ON THE BASIS OF "ORIGINAL COST."  FN6 

IN RECLASSIFYING ITS ACCOUNTS AS OF JANUARY 1, 1937, NEW YORK
ESTIMATED THE AMOUNTS ATTRIBUTABLE TO THE SURVIVING TOLL PLANT RECEIVED
FROM AMERICAN, WHICH IT ORIGINALLY HAD INCLUDED IN ITS BOOKS ON THE
BASIS OF STRUCTURAL VALUE.  NEW YORK THEN DETERMINED THE DIFFERENCE
BETWEEN THOSE ESTIMATES AND WHAT IT ESTIMATED WAS THE ORIGINAL COST OF
SUCH SURVIVING PLANT TO AMERICAN.  THE DIFFERENCE WAS PLACED IN ACCOUNT
100.4, TELEPHONE PLANT ACQUISITION ADJUSTMENT.  ACCOUNT 100.4 INCLUDES
AMOUNTS "REPRESENTING THE DIFFERENCE BETWEEN (1) THE AMOUNT OF MONEY
ACTUALLY PAID (OR THE CURRENT MONEY VALUE OF ANY CONSIDERATION OTHER
THAN MONEY EXCHANGED) FOR TELEPHONE PLANT ACQUIRED, PLUS PRELIMINARY
EXPENSES INCURRED IN CONNECTION WITH THE ACQUISITION; AND (2) THE
ORIGINAL COST OF SUCH PLANT, GOVERNMENTAL FRANCHISES AND SIMILAR RIGHTS
ACQUIRED, LESS THE AMOUNTS OF RESERVE REQUIREMENTS FOR DEPRECIATION AND
AMORTIZATION OF THE PROPERTY ACQUIRED."  FN7 

IN 1938 NEW YORK BEGAN AMORTIZING THIS SUM BY CHARGES AND CREDITS TO
ITS OPERATING EXPENSE ACCOUNT 614, AMORTIZATION OF TELEPHONE PLANT
ACQUISITION ADJUSTMENT, WITH CONCURRENT ENTRIES TO ACCOUNT 172,
AMORTIZATION RESERVE.  AS PORTIONS OF THE ACQUIRED PLANT WERE RETIRED,
AMOUNTS IN ACCOUNT 100.4 WERE WRITTEN OUT OF THAT ACCOUNT AND
CONCURRENT ENTRIES WERE MADE IN ACCOUNT 172. 

ON JUNE 16, 1942, THE FEDERAL COMMUNICATIONS COMMISSION INSTITUTED
THE PRESENT PROCEEDING BY ORDERING A GENERAL INVESTIGATION INTO THE
ACCOUNTING PERFORMED BY APPELLEE AT THE TIME OF AND SUBSEQUENT TO THE
FOUR TRANSFERS OF PROPERTY INVOLVED IN THIS SUIT.  THE ORDER REQUIRED
NEW YORK TO SHOW CAUSE WHY $4,166,510.57(THE DIFFERENCE BETWEEN BOOK
COST TO AMERICAN, LESS RELATED DEPRECIATION, AND THE STRUCTURAL VALUE
OF THE PROPERTY AS RECORDED ON THE BOOKS OF NEW YORK) SHOULD NOT BE
CHARGED TO ITS ACCOUNT 413, MISCELLANEOUS DEBITS TO SURPLUS, WITH
CONCURRENT ENTRIES TO SUCH ACCOUNTS AS MIGHT BE APPROPRIATE.  THE ORDER
ALSO SUSPENDED ALL CHARGES TO OPERATING EXPENSE ACCOUNTS MADE BY NEW
YORK ON OR AFTER JANUARY 1, 1943, FOR THE PURPOSE OF OR IN CONJUNCTION
WITH AMORTIZING OR OTHERWISE DISPOSING OF AMOUNTS INCLUDED IN ACCOUNT
100.4, PENDING SUBMISSION OF PROOF BY RESPONDENT OF THE PROPRIETY AND
REASONABLENESS OF SUCH CHARGES.  FN8 

A JOINT HEARING WAS THEN HELD WITH THE NEW YORK PUBLIC SERVICE
COMMISSION, AND IN JUNE, 1943, THE FEDERAL COMMUNICATIONS COMMISSION
ISSUED ITS PROPOSED REPORT.  AFTER ORAL ARGUMENT BEFORE THE COMMISSION
SITTING EN BANC, A FINAL REPORT AND ORDER WERE ISSUED ON DECEMBER 14,
1943.  52 P.U.R. (N.S.)  101.  THE ORDER DIRECTED NEW YORK TO CHARGE
$4,166,510.57 TO ITS ACCOUNT 413, MISCELLANEOUS DEBITS TO SURPLUS, AND
TO MAKE APPROPRIATE CONCURRENT ENTRIES TO OTHER ACCOUNTS.  FN9 

NEW YORK THEN BROUGHT THIS SUIT BEFORE A DISTRICT COURT OF THREE
JUDGES TO ENJOIN THE COMMISSION'S ORDER.  FN10  APPELLANTS' MOTION FOR
SUMMARY JUDGMENT WAS DENIED AND ON JANUARY 2, 1945, AS HAS BEEN SAID,
THE DISTRICT COURT ENTERED ITS JUDGMENT PERMANENTLY ENJOINING THE
ORDER.  56 F.SUPP.  932.  THE COURT HELD THAT THE ACCOUNTING ENTRIES
WERE LEGAL WHEN MADE, SINCE THEY WERE IN ACCORDANCE WITH THE ACCOUNTING
SYSTEM THEN PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION; AND THAT,
CONSEQUENTLY, THE COMMISSION COULD "NOT APPLY RETROACTIVELY A NEW
SYSTEM TO WRITE DOWN THE PLAINTIFF'S SURPLUS."  THE COURT ALSO HELD
THAT THE COMMISSION'S ORDER WAS CONTRARY TO THIS COURT'S DECISION IN
AMERICAN TELEPHONE & TELEGRAPH CO. V. UNITED STATES, 299 U.S. 232, AND
TO A "STIPULATION" FILED IN THAT CAUSE BY THE SOLICITOR GENERAL.  THE
PRESENT APPEAL FOLLOWED. 

APPELLEE'S FIRST ARGUMENT IN SUPPORT OF THE DISTRICT COURT'S DECISION
IS A SIMPLE ONE.  IT IS, SHORTLY, THAT THE COMMISSION'S ORDER WAS
PREMISED UPON THE CONCLUSION THAT THE ORIGINAL ACCOUNTING ENTRIES WERE
ILLEGAL WHEN MADE.  APPELLEE DISPUTES THIS, MAINTAINING THAT THE
ACCOUNTING ENTRIES MADE PRIOR TO JANUARY 1, 1937, WERE IN FULL
ACCORDANCE WITH THE SYSTEM OF ACCOUNTS PRESCRIBED BY THE INTERSTATE
COMMERCE COMMISSION.  THAT SYSTEM, BY THE ARGUMENT, WAS BASED NOT UPON
ORIGINAL COST BUT UPON ACTUAL COST "WITHOUT DISTINCTION BETWEEN
ACQUISITIONS FROM AFFILIATED COMPANIES AND ACQUISITIONS FROM OTHERS
THAN AFFILIATES."  FN11 

THE ANSWER TO THIS CONTENTION IS EQUALLY SIMPLE.  IT IS NOT NECESSARY
TO DECIDE WHETHER THE ACCOUNTING ENTRIES, WHEN MADE, WERE LEGAL UNDER
THE SYSTEM PROMULGATED BY THE INTERSTATE COMMERCE COMMISSION; FOR WE
THINK THE ORDER IN REVIEW WAS NOT BASED EXCLUSIVELY UPON THAT PREMISE. 
IT IS TRUE THAT LANGUAGE IN THE COMMISSION'S REPORT, WHEN READ OUT OF
CONTEXT, MIGHT BE TAKEN TO LEND SUPPORT TO APPELLEE'S POSITION.  BUT
THE REPORT, READ AS A WHOLE, SHOWS THAT THE COMMISSION'S ORDER FOR THE
READJUSTMENT OF THE ACCOUNTS WENT ON THE VIEW THAT THE INFLATION WAS
NOT JUSTIFIABLE IN THE LIGHT OF ITS OWN ORIGINAL COST SYSTEM OF
ACCOUNTS.  THE COMMISSION MAY HAVE THOUGHT, AS AN ALTERNATIVE GROUND
FOR ITS DECISION, THAT THE ACCOUNTS WERE ILLEGAL WHEN MADE; FN12  BUT
THE PRINCIPAL FOUNDATION OF THE ORDER WAS THAT APPELLEE WAS LEGALLY
SUBJECT TO THE REQUIREMENT OF RESTATING ITS ACCOUNTS ON THE BASIS OF
ORIGINAL COST; FN13  AND CONSEQUENTLY ANY EXCESS ON ITS BOOKS OVER
AMERICAN'S NET BOOK COST MUST BE ELIMINATED. 

WE TURN THEREFORE TO NEW YORK'S FURTHER ARGUMENT, WHICH BEGINS WITH A
CONCESSION.  THE BRIEF ADMITS THAT THE COMMISSION "COULD REQUIRE THE
BALANCES REMAINING IN APPELLEE'S PROPERTY ACCOUNTS TO BE
RECLASSIFIED."  BUT IT IS URGED THAT THE COMMISSION PROPERLY CAN GO NO
FURTHER.  SINCE PORTIONS OF THE PROPERTY HAVE BEEN RETIRED AND WRITTEN
OUT OF THE PLANT ACCOUNT AT THE AMOUNT AT WHICH THEY WERE RECORDED
ORIGINALLY AND SINCE CORRESPONDING CHARGES HAVE BEEN MADE CONCURRENTLY
TO THE DEPRECIATION RESERVE,  FN14  APPELLEE SAYS THE COMMISSION IS
WITHOUT POWER, PERHAPS UNDER THE TERMS OF THE COMMUNICATIONS ACT, BUT
AT ANY RATE UNDER ITS OWN SYSTEM OF ACCOUNTS, TO ORDER A
RECLASSIFICATION OF THE ENTRIES FOR PLANT WHICH HAS NOW BEEN RETIRED. 
THE GOVERNMENT ANSWERS THAT THE EFFECT OF THE WRITE-UP CAUSED
ORIGINALLY BY NEW YORK'S RECORDING THE PROPERTY AT STRUCTURAL VALUE
RATHER THAN AT AMERICAN'S NET BOOK COST HAS NEVER BEEN ERADICATED.  IT
POINTS TO THE FACT THAT NEW YORK DID NOT APPLY A SPECIAL DEPRECIATION
RATE TO THE PROPERTY IN QUESTION ALTHOUGH IT WAS NOT NEW AND ITS PRICE
PURPORTED TO REFLECT EXISTING DEPRECIATION.  THUS, THE GOVERNMENT IN
EFFECT ASSERTS THAT THERE HAS BEEN AN UNDERDEPRECIATION N15.  NEW YORK
DENIES THIS.  IT SAYS THAT THE GROUP METHOD,  FN16  UNDER WHICH THE
PROPERTY WAS DEPRECIATED AT RATES SIMILAR TO THOSE APPLYING TO LIKE
PROPERTY, TAKES INTO ACCOUNT THE FACT THAT SOME PROPERTY MAY REMAIN IN
SERVICE FOR A SHORTER TIME THAN IS EXPECTED AND THAT SOME PROPERTY MAY
REMAIN SERVICEABLE FOR A LONG TIME.  UNDER THE GROUP METHOD, IT
INSISTS, SUCH INEQUALITIES ARE AVERAGED OUT IN THE RATE FIXED FOR THE
GROUP AS A WHOLE. 

THE EFFECT OF APPELLEE'S ARGUMENT WOULD BE TO RENDER THE COMMISSION
POWERLESS TO WRITE OFF MUCH OF THE INFLATION CAUSED BY THE ORIGINAL
ACCOUNTING IN THIS CASE.  FOR, AS HAS BEEN POINTED OUT, THE INFLATION
IS NOT "REMOVED AS PROPERTY IS RETIRED....  WHEN PROPERTY IS RETIRED
ITS COST IS CREDITED TO THE PROPER ASSET ACCOUNT AND (NEGLECTING THE
EFFECT OF SALVAGE) THE SAME COST IS DEBITED TO DEPRECIATION RESERVE,
AND THE RESULTANT CHANGE IN BOOK VALUE IS ZERO.  THUS THE EFFECT OF
RETIRING AN INFLATIONARY ASSET ITEM IS TO CREATE A DEFICIENCY IN
DEPRECIATION RESERVE EQUAL TO THE INFLATION FORMERLY EXISTING IN THE
ASSET ACCOUNT."  FN17 

MOREOVER, IT WOULD SEEM CLEAR THAT RATES ESTABLISHED UNDER THE GROUP
METHOD OF DEPRECIATION ARE NOT PROPERLY APPLIED TO PROPERTY PURCHASED
WHICH IS KNOWN NOT TO HAVE AS LONG AN EXPECTED SERVICEABLE LIFE AS
PROPERTY OF THE SAME SORT PURCHASED WHEN NEW.  IT IS TRUE THAT
TESTIMONY APPEARS IN THE RECORD THAT AT THE TIME OF THE PURCHASE OF THE
PROPERTY "THE QUESTION OF THE EFFECT OF THIS PURCHASE ON THE
DEPRECIATION RATES, AND WHETHER OR NOT THE DEPRECIATION RATES SHOULD BE
INCREASED (SO AS) TO ALLOW FOR THE FACT THAT THE PROPERTY PURCHASED WAS
NOT NEW AND, THEREFORE, HAD LESS THAN THE FULL LIFE REMAINING" AROSE
AND WAS CONSIDERED.  TRUE ALSO, TESTIMONY SHOWED IT WAS DECIDED AT THE
TIME "THAT WITHOUT ANY INCREASE IN THE RATES THE RATES THAT WERE
ALREADY IN EFFECT WOULD BE AMPLE TO PROVIDE FOR RETIREMENT OF THE
PROPERTY PURCHASED."  NEVERTHELESS THE COMMISSION APPARENTLY FOUND THAT
SUCH WAS NOT THE CASE. 

WE CANNOT SAY THAT SUCH A CONCLUSION WAS ERRONEOUS.  FN18  AND IT MAY
BE ADDED, IN SUPPORT OF THE COMMISSION'S DESIRE TO PUT NEW YORK'S
ACCOUNTS ON AN ORIGINAL COST BASIS, THAT ONE OF THE EFFECTS OF ORIGINAL
COST ACCOUNTING WILL BE NOT TO REQUIRE NEW YORK IN THE FUTURE TO DO
WHAT IT SHOULD HAVE DONE IN THE PAST, AT LEAST UNDER THE FEDERAL
COMMUNICATIONS COMMISSION SYSTEM OF ACCOUNTS.  "...  THE DEPRECIATION
RATE APPLICABLE TO A SPECIFIC CLASS OF PLANT CAN BE BASED ON AN
ESTIMATE OF TOTAL SERVICE LIFE.  THERE IS NO NECESSITY TO DEPRECIATE
PART OF THE ACCOUNT (CONSTRUCTED PLANT) ON A TOTAL SERVICE-LIFE BASIS
AND ANOTHER PART (ACQUIRED PROPERTIES) ON A REMAINDER-LIFE BASIS." 
FN19 

APPELLEE FURTHER URGES THAT SO MUCH OF THE COMMISSION'S ORDER AS
AFFECTS PROPERTY ALREADY RETIRED IS IMPROPER, BECAUSE THE SOLE PURPOSE
OF ORIGINAL COST ACCOUNTING IS TO SHOW SEPARATELY THE AMOUNT BY WHICH
THE PRICE PAID BY THE ACCOUNTING COMPANY FOR PROPERTY NOW IN SERVICE
EXCEEDED THE ORIGINAL COST OF THAT PROPERTY.  BUT THE PURPOSES OF AN
ORIGINAL COST SYSTEM OF ACCOUNTING ARE BROADER.  UNDER SUCH A SYSTEM
THE INFLATION IN ACCOUNTS NOT ONLY MAY BE SEGREGATED BUT MAY ALSO BE
WRITTEN OFF.  FN20  NORTHWESTERN ELECTRIC CO. V. FEDERAL POWER
COMMISSION, 321 U.S. 119, 123-124; CALIFORNIA OREGON CO. V. FEDERAL
POWER COMMISSION, 150 F.2D 25, 27-28. 

THE FINAL QUESTION IS WHETHER THE ORDER FALLS WITHIN THE DECISION IN
AMERICAN TELEPHONE & TELEGRAPH CO. V. UNITED STATES, 299 U.S. 232. 
THAT CASE INVOLVED AN ATTEMPT TO SET ASIDE AN ORDER OF THE FEDERAL
COMMUNICATIONS COMMISSION PRESCRIBING A UNIFORM SYSTEM OF ACCOUNTS FOR
TELEPHONE COMPANIES.  THE COMPANIES OBJECTED TO THE ORDER'S "ORIGINAL
COST" PROVISIONS AS PREVENTING THEM "'FROM RECORDING THEIR ACTUAL
INVESTMENT IN THEIR ACCOUNTS' WITH THE RESULT THAT THE ACCOUNTS DO NOT
FAIRLY EXHIBIT THEIR FINANCIAL SITUATION TO SHAREHOLDERS, INVESTORS,
TAX COLLECTORS AND OTHERS."  THE COURT REPLIED THAT SUCH A CONSEQUENCE
WOULD NOT BE ENTAILED, BUT THAT UNDER THE ORDER ONLY SUCH AN AMOUNT
WOULD BE WRITTEN OFF "AS APPEARS  ...  TO BE A FICTITIOUS OR PAPER
INCREMENT."  299 U.S. AT 240.  HOWEVER, TO AVOID POSSIBLE
MISUNDERSTANDING AND TO GIVE ASSURANCE TO THE COMPANIES, THE COURT
REQUESTED THE ASSISTANT ATTORNEY GENERAL APPEARING FOR THE GOVERNMENT
TO REDUCE TO WRITING HIS STATEMENT IN THAT REGARD IN BEHALF OF THE
COMMISSION.  THIS HE DID, INFORMING THE COURT THAT "THE FEDERAL
COMMUNICATIONS COMMISSION CONSTRUES THE PROVISIONS OF TELEPHONE
DIVISION ORDER NO. 7-C, ISSUED JUNE 19, 1935, PERTAINING TO ACCOUNT
100.4" AS MEANING "THAT AMOUNTS INCLUDED IN ACCOUNT 100.4 THAT ARE
DEEMED, AFTER A FAIR CONSIDERATION OF ALL THE CIRCUMSTANCES, TO
REPRESENT AN INVESTMENT WHICH THE ACCOUNTING COMPANY HAS MADE IN ASSETS
OF CONTINUING VALUE WILL BE RETAINED IN THAT ACCOUNT UNTIL SUCH ASSETS
CEASE TO EXIST OR ARE RETIRED; AND, IN ACCORDANCE WITH PARAGRAPH (C) OF
ACCOUNT 100.4, PROVISION WILL BE MADE FOR THEIR AMORTIZATION."  THIS
STATEMENT THE COURT ACCEPTED "AS AN ADMINISTRATIVE CONSTRUCTION BINDING
UPON THE COMMISSION IN ITS FUTURE DEALINGS WITH THE COMPANIES."  THE
COURT ALSO NOTED THAT THE CASE WAS TO BE DISTINGUISHED FROM NEW YORK
EDISON CO. V. MALTBIE, 244 APP. DIV. 685, 281 N.Y.S. 223, AFF'D, 271
N.Y. 103, 2 N.E.2D 277, "WHERE UNDER RULES PRESCRIBED BY THE PUBLIC
SERVICE COMMISSION OF NEW YORK, THERE WAS AN INFLEXIBLE REQUIREMENT
THAT AN ACCOUNT SIMILAR IN SOME ASPECTS TO 100.4 BE WRITTEN OFF IN ITS
ENTIRETY OUT OF SURPLUS, WHETHER THE VALUE THERE RECORDED WAS GENUINE
OR FALSE." 

THE DISTRICT COURT THOUGHT THE ORDER IN THE INSTANT CASE WAS
ERRONEOUS "IN VIEW OF THE STIPULATION OF THESE SAME DEFENDANTS MADE IN
AMERICAN T. & T. CO. V. UNITED STATES, SUPRA; CERTAINLY IN THE ABSENCE
OF PROOF THAT THE EXCESS OF PRICE OVER THE SELLER'S NET BOOK COST WAS
NOT A 'TRUE INCREMENT OF VALUE.'  THERE HAS NOT BEEN ANY DETERMINATION
BASED UPON A FAIR CONSIDERATION OF ALL THE CIRCUMSTANCES IN ACCORDANCE
WITH THE STIPULATION MENTIONED, NOR UPON THE EVIDENTIARY CIRCUMSTANCES
REFERRED TO IN THE OPINION OF THE SUPREME COURT."  56 F.SUPP.  AT 938. 

WE THINK THIS MISCONCEIVES THE "STIPULATION'S" PURPORT AND EFFECT. 
WHEN THE FEDERAL COMMUNICATIONS COMMISSION FINDS, AFTER FULL HEARING
AND ON EVIDENCE WHICH SUSTAINS THE FINDING, THAT PART OF THE COST ON
THE BOOKS OF A COMPANY IS DUE TO A PROFIT MADE BY AN AFFILIATE OR A
PARENT AT THE TIME WHEN THE AFFILIATE OR PARENT HAS TRANSFERRED
PROPERTY TO IT, THE COMMISSION HAS DETERMINED, "AFTER A FAIR
CONSIDERATION OF ALL THE CIRCUMSTANCES" IN FULL COMPLIANCE WITH THE
"STIPULATION'S" RESERVATION, THAT THERE HAS BEEN NO TRUE INVESTMENT BUT
ONLY A "FICTITIOUS OR PAPER INCREMENT" WITHIN THE MEANING OF THE
AMERICAN TELEPHONE & TELEGRAPH COMPANY CASE.  FN21  THE STIPULATION DID
NOT FORECLOSE, RATHER IT IN TERMS RESERVED THIS INQUIRY.  "FOR AN
INTERCORPORATE PROFIT WHICH UPON A CONSOLIDATED INCOME STATEMENT OF THE
AFFILIATED GROUP WOULD DISAPPEAR ENTIRELY IS TOO LACKING IN SUBSTANCE
TO BE TREATED AS AN ACTUAL COST."  PENNSYLVANIA POWER & LIGHT CO. V.
FEDERAL POWER COMMISSION, 139 F.2D 445, 450.  INDEED THE OPINION IN THE
AMERICAN TELEPHONE & TELEGRAPH COMPANY CASE SAID:  "THERE IS WIDESPREAD
BELIEF THAT TRANSFERS BETWEEN AFFILIATES OR SUBSIDIARIES COMPLICATE THE
TASK OF RATE-MAKING FOR REGULATORY COMMISSIONS AND IMPEDE THE SEARCH
FOR TRUTH.  BUYER AND SELLER IN SUCH CIRCUMSTANCES MAY NOT BE DEALING
AT ARM'S LENGTH, AND THE PRICE AGREED UPON BETWEEN THEM MAY BE A POOR
CRITERION OF VALUE."  299 U.S. AT 239. 

IT IS ARGUED, HOWEVER, THAT THE USE OF THE WORD "MAY" WAS INTENDED TO
PUT THE BURDEN ON THE COMMISSION TO FIND THAT IN SUCH INTER-AFFILIATE
OR PARENT-SUBSIDIARY TRANSACTIONS THE PRICE ACTUALLY WAS A POOR
CRITERION OF VALUE.  THAT IS NOT OUR UNDERSTANDING.  IN THE FIRST
PLACE, THE ACT IMPOSES UPON THE COMPANY, NOT ON THE COMMISSION, THE
BURDEN OF PROOF TO JUSTIFY ACCOUNTING ENTRIES.  NEITHER THE COURT NOR
THE COMMISSION, IN ACTION TAKEN WITH RELATION TO THE "STIPULATION," CAN
BE THOUGHT TO HAVE UNDERTAKEN TO SHIFT THIS BURDEN IN THE TEETH OF THE
STATUTORY PROVISION, AS THE FULL TERMS OF THE "STIPULATION," SET FORTH
BELOW,  FN22  DISCLOSE.  WE THINK THAT THE USE OF THE CONDITIONAL WAS
MEANT TO INDICATE NO MORE THAN THAT THIS COURT WAS NOT TAKING SIDES IN
THE DEBATE IN ACCOUNTING CIRCLES AS TO WHETHER THE PRICE AGREED UPON
BETWEEN AFFILIATES WAS OR WAS NOT IN FACT A POOR CRITERION OF VALUE. 
TO RESOLVE THAT DISCUSSION WAS AND IS FOR THE REGULATORY COMMISSIONS
AND NOT FOR THE COURTS.  WE REPEAT THAT FOR A COURT TO UPSET AN
ACCOUNTING ORDER IT MUST BE "'SO ENTIRELY AT ODDS WITH FUNDAMENTAL
PRINCIPLES OF CORRECT ACCOUNTING'...  AS TO BE THE EXPRESSION OF A WHIM
RATHER THAN AN EXERCISE OF JUDGMENT."  299 U.S. AT 236-237.  THE ORDER
IN THIS CASE IS NOT OF THAT CHARACTER.  FN23 

THE JUDGMENT IS REVERSED. 

FN1  OPINION OF THE NEW YORK PUBLIC SERVICE COMMISSION, CASE 9436,
ADOPTED DECEMBER 14, 1943, 1 REPORT OF THE PUBLIC SERVICE COMMISSION
(1943) 569, 571. 

FN2  (CHART OMITTED) 

FN3  THE FEDERAL COMMUNICATIONS COMMISSION DEFINES "'GROUP PLAN,' AS
APPLIED TO DEPRECIATION ACCOUNTING" AS "THE PLAN UNDER WHICH
DEPRECIATION CHARGES ARE ACCRUED UPON THE BASIS OF THE ORIGINAL COST
...  OF ALL PROPERTY INCLUDED IN EACH DEPRECIABLE PLANT ACCOUNT, USING
THE AVERAGE SERVICE LIFE THEREOF PROPERLY WEIGHTED, AND UPON THE
RETIREMENT OF ANY DEPRECIABLE PROPERTY ITS FULL SERVICE VALUE IS
CHARGED TO THE DEPRECIATION RESERVE WHETHER OR NOT THE PARTICULAR ITEM
HAS ATTAINED THE AVERAGE SERVICE LIFE."  47 CODE FED. REG. 31.01-3(P). 

FN4  THE COMMUNICATIONS ACT OF 1934(48 STAT. 1064) PROVIDES: 

"SEC. 220(A).  THE COMMISSION MAY, IN ITS DISCRETION, PRESCRIBE THE
FORMS OF ANY AND ALL ACCOUNTS, RECORDS, AND MEMORANDA TO BE KEPT BY
CARRIERS SUBJECT TO THIS ACT, INCLUDING THE ACCOUNTS, RECORDS, AND
MEMORANDA OF THE MOVEMENT OF TRAFFIC, AS WELL AS OF THE RECEIPTS AND
EXPENDITURES OF MONEYS." 

"SEC. 220(C).  THE COMMISSION SHALL AT ALL TIMES HAVE ACCESS TO AND
THE RIGHT OF INSPECTION AND EXAMINATION OF ALL ACCOUNTS, RECORDS, AND
MEMORANDA, INCLUDING ALL DOCUMENTS, PAPERS, AND CORRESPONDENCE NOW OR
HEREAFTER EXISTING, AND KEPT OR REQUIRED TO BE KEPT BY SUCH CARRIERS,
AND THE PROVISIONS OF THIS SECTION RESPECTING THE PRESERVATION AND
DESTRUCTION OF BOOKS, PAPERS, AND DOCUMENTS SHALL APPLY THERETO.  THE
BURDEN OF PROOF TO JUSTIFY EVERY ACCOUNTING ENTRY QUESTIONED BY THE
COMMISSION SHALL BE ON THE PERSON MAKING, AUTHORIZING, OR REQUIRING
SUCH ENTRY AND THE COMMISSION MAY SUSPEND A CHARGE OR CREDIT PENDING
SUBMISSION OF PROOF BY SUCH PERSON...." 

"SEC. 220(G).  AFTER THE COMMISSION HAS PRESCRIBED THE FORMS AND
MANNER OF KEEPING OF ACCOUNTS, RECORDS, AND MEMORANDA TO BE KEPT BY ANY
PERSON AS HEREIN PROVIDED, IT SHALL BE UNLAWFUL FOR SUCH PERSON TO KEEP
ANY OTHER ACCOUNTS, RECORDS, OR MEMORANDA THAN THOSE SO PRESCRIBED OR
SUCH AS MAY BE APPROVED BY THE COMMISSION OR TO KEEP THE ACCOUNTS IN
ANY OTHER MANNER THAN THAT PRESCRIBED OR APPROVED BY THE COMMISSION. 
NOTICE OF ALTERATIONS BY THE COMMISSION IN THE REQUIRED MANNER OR FORM
OF KEEPING ACCOUNTS SHALL BE GIVEN TO SUCH PERSONS BY THE COMMISSION AT
LEAST SIX MONTHS BEFORE THE SAME ARE TO TAKE EFFECT." 

PRIOR TO PASSAGE OF THE COMMUNICATIONS ACT THE POWER TO PRESCRIBE
ACCOUNTS FOR TELEPHONE COMPANIES HAD BEEN LODGED WITH THE INTERSTATE
COMMERCE COMMISSION.  INTERSTATE COMMERCE ACT SEC. 20(5), 41 STAT. 493,
SUBSEQUENTLY AMENDED, 54 STAT. 917.  SEE AMERICAN TELEPHONE & TELEGRAPH
CO. V. UNITED STATES, 299 U.S. 232, 235-236. 

FN5  THE ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION PRESCRIBING A
UNIFORM SYSTEM OF ACCOUNTS FOR TELEPHONE COMPANIES HAVING AVERAGE
ANNUAL OPERATING REVENUES EXCEEDING $50,000, WAS ADOPTED ON JUNE 19,
1935, 1 F.C.C. 45, AND WAS ORIGINALLY TO BE EFFECTIVE JANUARY 1, 1936. 
THIS ORDER WAS STAYED BECAUSE OF THE PROCEEDING IN THE AMERICAN
TELEPHONE & TELEGRAPH CO. CASE, SUPRA NOTE 4, AND DID NOT BECOME
EFFECTIVE, AS AMENDED, UNTIL JANUARY 1, 1937.  3 F.C.C. 9. 

FN6  THE RULES AND REGULATIONS OF THE FEDERAL COMMUNICATIONS
COMMISSION PROVIDE THAT "'ORIGINAL COST' OR 'COST,' AS APPLIED TO
TELEPHONE PLANT, FRANCHISE, PATENT RIGHTS, AND RIGHT-OF-WAY, MEANS THE
ACTUAL MONEY COST OF (OR THE CURRENT MONEY VALUE OF ANY CONSIDERATION
OTHER THAN MONEY EXCHANGED FOR) PROPERTY AT THE TIME WHEN IT WAS FIRST
DEDICATED TO THE PUBLIC USE, WHETHER BY THE ACCOUNTING COMPANY OR BY
PREDECESSORS."  47 CODE FED. REG. 31.01-3(X). 

FN7  AT THE SAME TIME APPELLEE TRANSFERRED FROM ITS ACCOUNT 171,
DEPRECIATION RESERVE, TO ITS ACCOUNT 172, AMORTIZATION RESERVE, AN
AMOUNT WHICH, WHEN SUPPLEMENTED BY FUTURE ACCRUALS OVER THE ESTIMATED
REMAINING LIFE OF THE PLANT AT THE THEN CURRENT DEPRECIATION RATES,
WOULD PROVIDE A RESERVE EQUIVALENT TO THE AMOUNT IN QUESTION IN ACCOUNT
100.4 AT THE TERMINATION OF THE LIFE OF THE PROPERTY INVOLVED. 

FN8  THE COMMISSION'S ORDER WAS GROUNDED UPON THE PROVISIONS OF SEC.
220(C) OF THE COMMUNICATIONS ACT.  SEE NOTE 4. 

FN9  ON THE SAME DATE THE NEW YORK PUBLIC SERVICE COMMISSION ALSO
ADOPTED ITS FINAL REPORT AND REACHED THE SAME CONCLUSION.  SEE NOTE 1. 
WE ARE INFORMED BY A BRIEF AMICUS CURIAE FILED BY THE NEW YORK PUBLIC
SERVICE COMMISSION THAT "A PROCEEDING FOR THE REVIEW OF THE ORDER OF
THE NEW YORK COMMISSION HAS BEEN BROUGHT IN THE APPELLATE DIVISION OF
THE SUPREME COURT OF THE STATE OF NEW YORK BUT THE ARGUMENT THEREOF HAS
BEEN DEFERRED, PENDING THE DECISION BY THIS COURT IN THE PRESENT
CASE."    FN10  SECTION 402(A) OF THE COMMUNICATIONS ACT MAKES
APPLICABLE TO ORDERS OF THE FEDERAL COMMUNICATIONS COMMISSION, WITH
CERTAIN EXCEPTIONS, THE URGENT DEFICIENCIES ACT.  38 STAT. 219, 220. 

FN11  THE DISTRICT COURT APPARENTLY ACCEPTED THIS ARGUMENT, FOR IT
SAID:  "THE ORDER UNDER REVIEW PROCEEDS UPON THE THEORY THAT
PLAINTIFF'S ACCOUNTING IN QUESTION WAS IMPROPER WHEN MADE AND SHOULD BE
CORRECTED."  56 F.SUPP.  AT 938.    FN12  CF. OPINION OF THE PUBLIC
SERVICE COMMISSION OF NEW YORK HOLDING, IN PART, THAT THE INTERSTATE
COMMERCE COMMISSION ACCOUNTING REQUIREMENTS DID NOT OBLIGE NEW YORK "TO
WRITE UP THE BOOK VALUE OF SYSTEM PROPERTY OR TO INFLATE SURPLUS BY
INTRA-SYSTEM PROFITS.  BUT THE ADROIT COMPANIES FOUND IT A CONVENIENT
EXCUSE FOR INFLATING BOOK VALUES."  1 REPORT OF THE PUBLIC SERVICE
COMMISSION (1943) 569, 587. 

FN13  SEE AMERICAN TELEPHONE & TELEGRAPH CO. V. UNITED STATES, 299
U.S. 232, 242:  "WE ARE NOT IMPRESSED BY THE ARGUMENT THAT THE
CLASSIFICATION IS TO BE VIEWED AS ARBITRARY BECAUSE THE FATE OF ANY
ITEM, ITS ULTIMATE DISPOSITION, REMAINS IN SOME DEGREE UNCERTAIN UNTIL
THE COMMISSION HAS GIVEN PARTICULAR DIRECTIONS WITH REFERENCE THERETO. 
BY BEING INCLUDED IN THE ADJUSTMENT ACCOUNT, IT IS CLASSIFIED AS
PROVISIONALLY A TRUE INVESTMENT, SUBJECT TO BE TAKEN OUT OF THAT
ACCOUNT AND GIVEN A DIFFERENT CHARACTER IF INVESTIGATION BY THE
COMMISSION SHOWS IT TO BE DESERVING OF THAT TREATMENT." 

FN14  SEE TEXT AT NOTE 3. 

FN15  THE BRIEF AMICUS CURIAE OF THE NEW YORK PUBLIC SERVICE
COMMISSION STATES:  "A WRITE-UP OR INFLATION OF THE BOOK COST MAY BE
BROUGHT ABOUT EITHER BY AN INFLATION OF THE BOOK COST FIGURE ON THE
ASSET SIDE OR BY A REDUCTION OF THE RELATED DEPRECIATION FIGURE ON THE
LIABILITY SIDE. 

"IN THIS CASE, THE INFLATION WAS ACCOMPLISHED PRINCIPALLY BY AN
UNDERSTATEMENT OF THE RELATED DEPRECIATION." 

FN16  SEE TEXT AT NOTE 3. 

FN17  OPINION OF THE NEW YORK PUBLIC SERVICE COMMISSION, 1 REPORT OF
THE PUBLIC SERVICE COMMISSION (1943) 569, 590. 

FN18  THE COMMISSION STATED:  "NEW YORK ATTEMPTED TO COUNTER THESE
CONCLUSIONS WITH THE CONTENTION THAT ITS DEPRECIATION RESERVE AS A
WHOLE IS NOW IN EXCESS OF REQUIREMENTS AND CONSEQUENTLY THE INFLATION
INTRODUCED THROUGH THE ACCOUNTING FOR THE TRANSACTIONS IN QUESTION HAS
BEEN OFFSET BY AN EXCESS IN THE RESERVE RESULTING FROM OTHER CAUSES;
AND THAT, FURTHER, UNLESS THE COMMISSION CAN SHOW THAT THE RESERVE AS A
WHOLE IS DEFICIENT NO CORRECTING ENTRY WHICH WOULD INCREASE THE RESERVE
CAN BE REQUIRED.  BUT THE QUESTION AS TO WHETHER THE DEPRECIATION
RESERVE, TAKEN AS A WHOLE, IS ADEQUATE IS IRRELEVANT TO THE ISSUES
HEREIN.  NO CHALLENGE IS HERE BEING MADE TO THE ADEQUACY OF THE
DEPRECIATION RESERVE AS A WHOLE.  THIS LINE OF ARGUMENT REPRESENTS AN
ATTEMPT TO OFFSET ONE ERROR BY ANOTHER.  IF NEW YORK'S DEPRECIATION
RESERVE IS IN EXCESS OF REQUIREMENTS, IT MEANS THAT NEW YORK HAS BEEN
MAKING EXCESSIVE CHARGES TO OPERATING EXPENSES FOR DEPRECIATION."  52
P.U.R. (N.S.)  101, 116-117. 

IT HAS BEEN URGED THAT, EVEN IF THE FEDERAL COMMUNICATIONS COMMISSION
WAS CORRECT IN ORDERING THE INFLATION IN THE ACCOUNTS OF NEW YORK
WRITTEN OFF THE BOOKS, THAT INFLATION HAS BEEN REDUCED BY SOME FRACTION
OF THE DEPRECIATION PREVIOUSLY TAKEN, THAT IS, PRIOR TO ELIMINATION OF
THE INFLATION, EVEN THOUGH THE GROUP METHOD OF DEPRECIATION WAS
EMPLOYED.  THAT POINT, WHATEVER ITS MERITS, WAS NOT MADE UNTIL THE CASE
REACHED THIS COURT.  ACCORDINGLY WE DO NOT CONSIDER IT. 

FN19  COLBERT, ADVANTAGES OF ORIGINAL COST CLASSIFICATION OF PLANT
(1945) 35 PUBLIC UTILITIES FORTNIGHTLY 333, 343. 

FN20  FOR OBVIOUS REASONS, THE UTILITY COMPANIES HAVE NOT OBJECTED SO
MUCH TO THE SEGREGATING OF THE DIFFERENCE BETWEEN THE COST TO THE
ACCOUNTING COMPANY OF PROPERTY ACQUIRED AND ORIGINAL COST LESS
DEPRECIATION AS THEY HAVE TO REMOVING THIS DIFFERENCE FROM THE BOOKS. 
SEE KRIPKE, A CASE STUDY IN THE RELATIONSHIP OF LAW AND ACCOUNTING:
UNIFORM ACCOUNTS 100.5 AND 107(1944) 57 HARV. L. REV. 433, 438 FF.,
ESPECIALLY AT 445. 

FN21  ALL RELEVANT FACTS PERTAINING TO THE TRANSACTION WERE BEFORE
THE COMMISSION.  THE COMMISSION FOUND THAT THERE WAS NO REAL INCREMENT
OF VALUE TO THE ASSETS AS A RESULT OF THE TRANSFER AND THAT THE
INCLUSION OF ANY WRITE-UP WOULD INTRODUCE "INFLATIONARY ELEMENTS" INTO
THE PLANT ACCOUNTS WHICH IN TIME WOULD BE "IMPROPERLY REFLECTED IN THE
DEPRECIATION EXPENSE ACCOUNT AS AN ALLEGED OPERATING COST."  NO OTHER
FINDINGS WERE NECESSARY.  AND THE REJECTION BY THE COMMISSION OF THE
COMPANY'S CONTENTION THAT REPRODUCTION COST LESS DEPRECIATION WAS THE
TRUE CRITERION OF "VALUE" WAS PLAINLY NO ERROR OF LAW. 

FN22  THE ENTIRE STATEMENT (SOMETIMES CALLED "STIPULATION") OF THE
GOVERNMENT IN THE AMERICAN TELEPHONE & TELEGRAPH COMPANY CASE (EXHIBIT
C IN THE INSTANT CASE) READS AS FOLLOWS: 

"THE FEDERAL COMMUNICATIONS COMMISSION CONSTRUES THE PROVISIONS OF
TELEPHONE DIVISION ORDER NO. 7-C, ISSUED JUNE 19, 1935, PERTAINING TO
ACCOUNT 100.4, AS FOLLOWS: 

"(1)  THAT AMOUNTS INCLUDED IN ACCOUNT 100.4 THAT ARE DEEMED, AFTER A
FAIR CONSIDERATION OF ALL THE CIRCUMSTANCES, TO REPRESENT AN INVESTMENT
WHICH THE ACCOUNTING COMPANY HAS MADE IN ASSETS OF CONTINUING VALUE
WILL BE RETAINED IN THAT ACCOUNT UNTIL SUCH ASSETS CEASE TO EXIST OR
ARE RETIRED; AND, IN ACCORDANCE WITH PARAGRAPH (C) OF ACCOUNT 100.4,
PROVISION WILL BE MADE FOR THEIR AMORTIZATION. 

"(2)  THAT WHEN AMOUNTS INCLUDED IN ACCOUNT 100.4 ARE DEEMED, AFTER A
FAIR CONSIDERATION OF ALL THE CIRCUMSTANCES, TO BE DEFINITELY
ATTRIBUTABLE TO DEPRECIABLE TELEPHONE PLANT, PROVISION WILL BE MADE FOR
AMORTIZATION OF SUCH AMOUNTS THROUGH OPERATING EXPENSES, THROUGH THE
MEDIUM OF EITHER ACCOUNT 613(R. 186) OR ACCOUNT 675(R. 205). 

"THE COMMISSION BELIEVES THAT THE FOREGOING CONSTRUCTION OF ITS ORDER
IS THAT WHICH IT PRESENTED TO THE DISTRICT COURT THROUGH THE AFFIDAVITS
OF ITS WITNESSES." 

FN23  THE FEDERAL POWER COMMISSION, THE SECURITIES AND EXCHANGE
COMMISSION, AND SOME STATE COMMISSIONS (SEE THE OPINION OF THE NEW YORK
PUBLIC SERVICE COMMISSION IN THE INSTANT CASE) HAVE TAKEN THE SAME
POSITION CONCERNING INTERAFFILIATE TRANSACTIONS AS HAS THE FEDERAL
COMMUNICATIONS COMMISSION.  SEE KRIPKE, A CASE STUDY IN THE
RELATIONSHIP OF LAW AND ACCOUNTING:  UNIFORM ACCOUNTS 100.5 AND
107(1944) 57 HARV. L. REV. 693, 705-708. 

MR. CHIEF JUSTICE STONE IS OF OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED ON THE GROUND, AS THE COURT BELOW HELD, THAT APPELLANT, THE
FEDERAL COMMUNICATIONS COMMISSION, IS BOUND BY AND HAS NOT COMPLIED
WITH THE STIPULATION TO WHICH IT WAS A PARTY AND WHICH THIS COURT
APPROVED IN AMERICAN TEL. & TEL. CO. V. UNITED STATES, 299 U.S. 232,
240, 241.  IN THAT CASE IT WAS CONTENDED THAT THE FEDERAL
COMMUNICATIONS COMMISSION'S UNIFORM SYSTEM OF ACCOUNTS FOR TELEPHONE
COMPANIES WOULD REQUIRE THAT ALL AMOUNTS REPRESENTING EXCESS OF
PURCHASE PRICE PAID BY THE TELEPHONE COMPANY TO ITS PARENT COMPANY OVER
THE SELLER'S ORIGINAL COST BE WRITTEN OFF. 

THE COURT HELD THAT UNDER THAT SYSTEM, APPLIED TO THE ACCOUNT HERE IN
QUESTION, WHICH HAD BEEN LAWFULLY ESTABLISHED UNDER INTERSTATE COMMERCE
COMMISSION REGULATIONS, ONLY SUCH AMOUNT COULD BE WRITTEN OFF AS
APPEARED "TO BE A FICTITIOUS OR PAPER INCREMENT," AND NOT "A TRUE
INCREMENT OF VALUE."  TO AVOID "THE CHANCE OF MISUNDERSTANDING AND TO
GIVE ADEQUATE ASSURANCE TO THE COMPANIES (INCLUDING APPELLEE HERE) AS
TO THE PRACTICE TO BE FOLLOWED," THE COURT REQUESTED THE ASSISTANT
ATTORNEY GENERAL TO REDUCE HIS STATEMENTS TO THAT EFFECT TO WRITING IN
BEHALF OF THE COMMISSION.  HE DID THIS AND INFORMED THE COURT "THAT
'THE FEDERAL COMMUNICATIONS COMMISSION CONSTRUES THE PROVISIONS OF
TELEPHONE DIVISION ORDER NO. 7-C, ISSUED JUNE 19, 1935, PERTAINING TO
ACCOUNT 100.4' AS MEANING 'THAT AMOUNTS INCLUDED IN ACCOUNT 100.4 THAT
ARE DEEMED, AFTER A FAIR CONSIDERATION OF ALL THE CIRCUMSTANCES, TO
REPRESENT AN INVESTMENT WHICH THE ACCOUNTING COMPANY HAS MADE IN ASSETS
OF CONTINUING VALUE WILL BE RETAINED IN THAT ACCOUNT UNTIL SUCH ASSETS
CEASE TO EXIST OR ARE RETIRED; AND, IN ACCORDANCE WITH PARAGRAPH (C) OF
ACCOUNT 100.4, PROVISION WILL BE MADE FOR THEIR AMORTIZATION.'" 

BEFORE THE COMMISSION COULD RIGHTLY DIRECT THAT THE ASSETS IN THAT
ACCOUNT, WHICH HAVE NOT BEEN RETIRED, BE WRITTEN OFF, THE STIPULATION
REQUIRED IT TO FIND, AFTER A "FAIR CONSIDERATION OF ALL THE
CIRCUMSTANCES," THAT THE DIFFERENCE BETWEEN THE ORIGINAL COST AND THE
PRICE CLAIMED TO HAVE BEEN PAID IS NOT "A TRUE INCREMENT OF VALUE." 
THIS THE COMMISSION HAS NOT DONE.  IN THE FACE OF ITS STIPULATION IT
MAY NOT ASSUME, WITHOUT A FINDING BASED UPON EVIDENCE, THAT THERE IS NO
"TRUE INCREMENT OF VALUE" TO THE ASSETS WHICH APPELLEE PURCHASED OVER
THE COST TO THE SELLER, MERELY BECAUSE APPELLEE PURCHASED THE ASSETS
FROM ITS PARENT CORPORATION. 

THE JUDGMENT SHOULD BE AFFIRMED. 

MR. JUSTICE BLACK, MR. JUSTICE REED AND MR. JUSTICE JACKSON TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :








ROLAND CO. V. WALLING, 326 U.S. 657 


NO. 45.  ARGUED OCTOBER 8, 1945.  - DECIDED JANUARY 28, 1946.  - 146
F.2D 745, AFFIRMED. 


PETITIONER, A MARYLAND CORPORATION HAVING ITS PRINCIPAL OFFICE, PLACE
OF BUSINESS AND A MANUFACTURING PLANT IN BALTIMORE, IS ENGAGED THERE IN
COMMERCIAL AND INDUSTRIAL WIRING, ELECTRICAL CONTRACTING, AND DEALING
IN ELECTRICAL MOTORS AND GENERATORS FOR PRIVATE, COMMERCIAL AND
INDUSTRIAL USES.  IT HAD APPROXIMATELY 1,000 ACTIVE ACCOUNTS, 99% OF
WHICH WERE COMMERCIAL OR INDUSTRIAL FIRMS.  OF ITS 33 LARGER AND MOST
ACTIVE ACCOUNTS, ONE WAS A TELEPHONE COMPANY ENGAGED IN INTERSTATE
COMMERCE, FOUR WERE ENGAGED IN THE REPAIR OF SHIPS, TUGS, BARGES AND
OTHER BOATS INTENDED FOR MOVEMENT IN INTERSTATE COMMERCE, AND (WITH ONE
EXCEPTION) THE REMAINDER WERE ENGAGED IN THE PRODUCTION OF GOODS FOR
COMMERCE AS DEFINED IN SEC. 3 OF THE FAIR LABOR STANDARDS ACT, SHIPPING
AT LEAST A SUBSTANTIAL PORTION OF THEIR TOTAL PRODUCTION OUT OF
MARYLAND.  ALL OF PETITIONER'S MECHANICS WORKED, IN PRACTICALLY EVERY
WORK WEEK, FOR SOME OF THESE 33 CUSTOMERS, EITHER IN THE REPAIR OF
THEIR MOTORS OR GENERATORS, THE RECONSTRUCTION OF USED MOTORS SOLD TO
THEM, OR IN PERFORMING ELECTRICAL WORK AT THEIR RESPECTIVE
ESTABLISHMENTS.  THE WAGE AND HOUR ADMINISTRATOR BROUGHT SUIT TO ENJOIN
PETITIONER FROM VIOLATING THE MINIMUM WAGE, MAXIMUM HOUR, AND
REPORTMAKING PROVISIONS OF THE FAIR LABOR STANDARDS ACT.  HELD: 

1.  PETITIONER'S EMPLOYEES ARE ENGAGED "IN THE PRODUCTION OF GOODS
FOR (INTERSTATE) COMMERCE" SO AS TO BRING THEM WITHIN THE COVERAGE OF
SECS. 6 AND 7 OF THE FAIR LABOR STANDARDS ACT.  P. 662. 

2.  THEY ARE NOT EXEMPTED FROM THE ACT ON THE GROUND THAT PETITIONER
IS A "SERVICE ESTABLISHMENT" WITHIN THE MEANING OF SEC. 13(A)(2).  P.
666. 

3.  SECTION 6(A) OF THE ACT, WHEN READ WITH THE DEFINITIONS OF
"COMMERCE," "GOODS," AND "PRODUCED" IN SEC. 3(B), (I), AND (J),
REQUIRES EVERY EMPLOYER TO PAY NOT LESS THAN THE REQUIRED MINIMUM WAGES
TO EACH OF HIS EMPLOYEES WHO IS EMPLOYED IN ANY PROCESS OR OCCUPATION
NECESSARY TO THE PRODUCTION, IN ANY STATE, OF ANY PART OR INGREDIENT OF
ANY ARTICLES OR SUBJECTS OF TRADE, COMMERCE OR TRANSPORTATION, OF ANY
CHARACTER, FOR TRADE, COMMERCE OR TRANSPORTATION AMONG THE SEVERAL
STATES.  P. 663. 

(A)  THIS DOES NOT REQUIRE THE EMPLOYEE TO BE DIRECTLY "ENGAGED IN
COMMERCE" AMONG THE SEVERAL STATES.  P. 663. 

(B)  IT DOES NOT REQUIRE THE EMPLOYEE TO BE EMPLOYED IN THE
PRODUCTION OF AN ARTICLE WHICH ITSELF BECOMES A SUBJECT OF COMMERCE OR
TRANSPORTATION AMONG THE SEVERAL STATES.  P. 663. 

(C)  IT IS ENOUGH THAT THE EMPLOYEE BE EMPLOYED, FOR EXAMPLE, IN AN
OCCUPATION WHICH IS NECESSARY TO THE PRODUCTION OF A PART OF ANY OTHER
"ARTICLES OR SUBJECTS OF COMMERCE OF ANY CHARACTER" WHICH ARE PRODUCED
FOR TRADE, COMMERCE OR TRANSPORTATION AMONG THE SEVERAL STATES.  P.
663. 

(D)  IT DOES NOT REQUIRE AN EMPLOYEE TO BE EMPLOYED EXCLUSIVELY IN
THE SPECIFIED OCCUPATION.  P. 664. 

(E)  IT DOES NOT REQUIRE THE OCCUPATION IN WHICH HE IS EMPLOYED TO BE
INDISPENSABLE TO THE PRODUCTION UNDER CONSIDERATION.  P. 664. 

(F)  IT IS ENOUGH THAT HIS OCCUPATION BE "NECESSARY TO THE
PRODUCTION."  P. 664. 

(G)  EVEN THOUGH THERE MAY BE ALTERNATIVE OCCUPATIONS THAT COULD BE
SUBSTITUTED FOR IT, IT IS ENOUGH THAT THE ONE AT ISSUE IS NEEDED IN
SUCH PRODUCTION AND WOULD, IF OMITTED, HANDICAP THE PRODUCTION.  P.
664. 

4.  THE WORK OF PETITIONER'S EMPLOYEES HAS SUCH A CLOSE AND IMMEDIATE
TIE WITH THE PROCESS OF PRODUCTION FOR COMMERCE, AND WAS SUCH AN
ESSENTIAL PART OF IT, THAT THE EMPLOYEES ARE TO BE REGARDED AS ENGAGED
IN AN OCCUPATION "NECESSARY TO THE PRODUCTION OF GOODS FOR COMMERCE." 
KIRSCHBAUM CO. V. WALLING, 316 U.S. 517.  P. 665. 

5.  WHEN READ IN THE LIGHT OF THE DECLARED PURPOSE OF THE ACT, ITS
LEGISLATIVE HISTORY, AND ITS ADMINISTRATIVE INTERPRETATION, SEC.
13(A)(2), EXEMPTING EMPLOYEES "ENGAGED IN ANY RETAIL OR SERVICE
ESTABLISHMENT THE GREATER PART OF WHOSE SELLING OR SERVICING IS IN
INTRASTATE COMMERCE," DOES NOT EXEMPT EMPLOYEES "ENGAGED IN THE
PRODUCTION OF GOODS FOR (INTERSTATE) COMMERCE."  P. 666. 

(A)  WHEN SO READ, IT EXEMPTS EMPLOYEES OF ONLY SUCH RETAIL OR
SERVICE ESTABLISHMENTS AS ARE COMPARABLE TO LOCAL MERCHANTS, CORNER
GROCERS OR FILLING STATION OPERATORS WHO SELL TO OR SERVE ULTIMATE
CONSUMERS.  P. 666. 

(B)  ITS ORIGIN HAS NOTHING TO DO WITH ESTABLISHMENTS "PRODUCING
GOODS FOR (INTERSTATE) COMMERCE."  P. 667. 

6.  TO THE EXTENT THAT SALES OR SERVICES ARE NECESSARY FOR THE
PRODUCTION OF GOODS FOR INTERSTATE COMMERCE, THEY GENERALLY ARE NOT
SALES OR SERVICES TO AN ULTIMATE CONSUMER FOR HIS PERSONAL USE AND,
ACCORDINGLY, ARE NEITHER RETAIL SALES NOR SERVICES OF A COMPARABLE
CHARACTER WITHIN THE MEANING OF SEC. 13(A)(2).  P. 667. 

7.  TO FAIL TO COVER IN THIS ACT THE MULTITUDE OF EMPLOYEES WHO ARE
ENGAGED IN ESTABLISHMENTS WHICH SUPPLY THE MATERIALS AND SERVICES
CURRENTLY NEEDED FOR THE MAINTENANCE OF PRODUCTIVE MACHINERY USED BY
THOSE WHO PRODUCE GOODS FOR INTERSTATE COMMERCE WOULD TAKE THE HEART
OUT OF THE ACT.  P. 668. 

8.  ITS PRIMARY PURPOSE IS NOT SO MUCH TO REGULATE INTERSTATE
COMMERCE AS SUCH, AS IT IS TO PROHIBIT THE SHIPMENT IN INTERSTATE
COMMERCE OF GOODS PRODUCED UNDER SUBSTANDARD LABOR CONDITIONS AND THUS
TO RAISE LIVING STANDARDS.  P. 669. 

9.  THIS PURPOSE WILL FAIL OF REALIZATION UNLESS THE ACT HAS
SUFFICIENTLY BROAD COVERAGE TO ELIMINATE IN LARGE MEASURE FROM
INTERSTATE COMMERCE THE COMPETITIVE ADVANTAGE ACCRUING FROM SAVINGS IN
COSTS BASED UPON SUBSTANDARD LABOR CONDITIONS.  P. 670. 

10.  IN THE LEGISLATIVE HISTORY OF THE ACT, THERE NEVER WAS AN INTENT
EXPRESSED TO EXEMPT RETAILERS OTHER THAN LOCAL MERCHANTS OF THE TYPE
DEALING WITH THE ULTIMATE CONSUMER.  P. 671. 

11.  THE DEBATES IN CONGRESS SHOW AN INTENT TO RESTRICT THE WORD
"RETAIL" TO SUCH TRANSACTIONS WITH ULTIMATE CONSUMERS AS ARE COMMONLY
CARRIED ON AT LOCAL DRY GOODS, BUTCHERING OR GROCERY STORES.  P. 672. 

12.  THIS IS CONFIRMED BY THE GENERAL USAGE OF THE WORD "RETAIL,"
WHICH MAKES A DISTINCTION, NOT MERELY BETWEEN THE SIZE AND VOLUME OF
SALES BUT ALSO BETWEEN TYPES OF PURCHASERS.  IT RELATES TO SALES TO
ULTIMATE CONSUMERS, AS DISTINGUISHED FROM THOSE WHO BUY TO RESELL OR TO
USE FOR BUSINESS NEEDS.  P. 673. 

13.  GOVERNMENT USAGE MAKES THE SAME DISTINCTION ON THE BASIS OF THE
USE FOR WHICH THE GOODS ARE PURCHASED.  P. 674. 

14.  THE WORD "SERVICE" IS ASSOCIATED WITH THE WORD "RETAIL" IN THIS
ACT SO AS TO RESTRICT ITS MEANING SIMILARLY TO SERVICES TO ULTIMATE
USERS OF THEM FOR PERSONAL RATHER THAN COMMERCIAL PURPOSES.  P. 675. 

15. THIS INTERPRETATION OF THE TERM "RETAIL AND SERVICE
ESTABLISHMENTS" IS REINFORCED BY THE ADMINISTRATIVE INTERPRETATIONS OF
THE WAGE AND HOUR ADMINISTRATOR, WHICH ARE ENTITLED TO GREAT WEIGHT. 
P. 676. 

16.  ALTHOUGH THE MOTORS SOLD BY PETITIONER WERE NOT PURCHASED BY ITS
CUSTOMERS FOR RESALE OR TO BE PROCESSED FOR RESALE, AND ALTHOUGH THEY
WERE TO BE USED AND PROBABLY ULTIMATELY "CONSUMED" IN THE HANDS OF
PETITIONER'S CUSTOMERS, THEY REMAINED ACTIVELY IN USE IN THE GREAT
FIELD OF THE PRODUCTION OF GOODS FOR INTERSTATE COMMERCE TO WHICH THE
ACT IS DIRECTED.  P. 678. 

17.  THE RECORD ESTABLISHES THE CHARACTER OF PETITIONER'S CUSTOMERS
AS "COMMERCIAL AND INDUSTRIAL" AND NOT "RETAIL" CUSTOMERS IN THE SAME
SENSE AS IS THE CUSTOMER OF THE LOCAL MERCHANT, GROCER OR FILLING
STATION OPERATOR WHO BUYS FOR HIS OWN PERSONAL CONSUMPTION.  P. 678. 

18.  THE ACT IS CONCERNED WITH GOODS IN THE STREAM OF COMMERCE BUT
NOT WITH THOSE IN "THE ACTUAL PHYSICAL POSSESSION OF THE ULTIMATE
CONSUMER THEREOF OTHER THAN A PRODUCER, MANUFACTURER, OR PROCESSOR
THEREOF."  P. 678. 

ROLAND ELECTRICAL CO. V. WALLING, WAGE AND HOUR ADMINISTRATOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 325 U.S. 849, TO REVIEW REVERSAL OF AN ORDER, 54 F.SUPP. 
733, DISMISSING A COMPLAINT OF THE ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION OF THE DEPARTMENT OF LABOR SEEKING TO ENJOIN VIOLATIONS OF THE
FAIR LABOR STANDARDS ACT OF 1938. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS PRESENTED ARE (1) WHETHER PETITIONER'S EMPLOYEES ARE
ENGAGED "IN THE PRODUCTION OF GOODS FOR COMMERCE" SO AS TO BRING THEM
WITHIN THE COVERAGE OF SECS. 6 AND 7 OF THE FAIR LABOR STANDARDS ACT OF
1938(52 STAT. 1060, 1062-3, 29 U.S.C. SECS. 206 AND 207), AND (2), IF
SO, WHETHER THEY ARE EXEMPTED FROM THE ACT BECAUSE "ENGAGED IN ANY
RETAIL OR SERVICE ESTABLISHMENT THE GREATER PART OF WHOSE SELLING OR
SERVICING IS IN INTRASTATE COMMERCE" WITHIN THE MEANING OF SEC.
13(A)(2).  29 U.S.C. SEC. 213(A)(2). 

RESPONDENT SOUGHT A PERMANENT INJUNCTION IN THE UNITED STATES
DISTRICT COURT RESTRAINING PETITIONER FROM CONTINUED VIOLATION OF THE
MINIMUM WAGE, MAXIMUM HOUR AND REPORT-MAKING PROVISIONS OF THE ACT.  29
U.S.C. SECS. 206, 207, 211(C).  AS TO THE COVERAGE BY THE ACT, THE
DISTRICT COURT SAID THAT "THE VIEW OF THE ADMINISTRATOR SHOULD NOT BE
ACCEPTED," BUT IT RESTED ITS DISMISSAL OF THE COMPLAINT UPON THE GROUND
THAT THE PETITIONER WAS EXEMPTED UNDER SEC. 13(A)(2).  54 F.SUPP.  733,
736.  THE CIRCUIT COURT OF APPEALS, ON THE OTHER HAND, HELD THAT
PETITIONER'S EMPLOYEES "WERE ENGAGED IN THE PRODUCTION OF GOODS FOR
COMMERCE" AND THAT THE PETITIONER WAS NOT A "RETAIL OR SERVICE
ESTABLISHMENT" WITHIN THE EXEMPTION PRESCRIBED IN SEC. 13(A)(2).  IT
ACCORDINGLY REVERSED THE ORDER OF DISMISSAL AND REMANDED THE CAUSE FOR
FURTHER PROCEEDINGS IN ACCORDANCE WITH ITS OPINION.  146 F.2D 745.  WE
GRANTED CERTIORARI ESPECIALLY BECAUSE OF THE DIVERGENCE OF OPINIONS
AMONG THE CIRCUIT COURTS OF APPEALS AS TO THE INTERPRETATION OF SEC.
13(A)(2).  FN1 

MOST OF THE RELEVANT FACTS WERE STIPULATED.  PETITIONER IS A MARYLAND
CORPORATION "HAVING ITS PRINCIPAL OFFICE, PLACE OF BUSINESS AND A
MANUFACTURING PLANT" IN BALTIMORE.  IT IS THERE ENGAGED IN "COMMERCIAL
AND INDUSTRIAL WIRING, ELECTRICAL CONTRACTING, AND DEALING IN
ELECTRICAL MOTORS AND GENERATORS, FOR PRIVATE, COMMERCIAL, AND
INDUSTRIAL USES." 

PETITIONER HAD "APPROXIMATELY 1,000 ACTIVE ACCOUNTS  ...  99 PERCENT
OF WHICH ARE COMMERCIAL OR INDUSTRIAL FIRMS."  ITS "LARGER AND MOST
ACTIVE ACCOUNTS" WERE 33 IN NUMBER.  OF SUCH 33 CUSTOMERS, ONE WAS A
TELEPHONE COMPANY "ENGAGED IN INTERSTATE COMMERCE"; FOUR WERE "ENGAGED
IN THE REPAIR OF SHIPS, TUGS, BARGES, AND OTHER BOATS WHICH WERE
INTENDED FOR MOVEMENT IN INTERSTATE COMMERCE"; AND "THE REMAINING
COMPANIES ON SAID LIST, WITH THE EXCLUSION OF THE AMERICAN ICE COMPANY
(A SMALL ACCOUNT IN THE PERIOD STIPULATED TO BE REPRESENTATIVE), WERE
ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE AS DEFINED IN SECTION 3
OF THE FAIR LABOR STANDARDS ACT OF 1938, SHIPPING AT LEAST A
SUBSTANTIAL PORTION OF THEIR TOTAL PRODUCTION TO POINTS OUTSIDE THE
STATE OF MARYLAND."  DURING THE PERIOD STIPULATED, "EVERY MECHANIC OF
THE DEFENDANT (PETITIONER) WORKED, IN PRACTICALLY EVERY WORKWEEK, FOR
SOME OF THE SAID (33) CUSTOMERS EITHER IN THE REPAIR OF THEIR MOTORS,
GENERATORS, THE RECONSTRUCTION OF USED MOTORS SOLD TO THEM, OR IN
PERFORMING ELECTRICAL WORK AT THEIR RESPECTIVE ESTABLISHMENTS."  TO
CARRY ON ITS ENTIRE BUSINESS, THE PETITIONER HAD 36 EMPLOYEES,
CONSISTING OF A FOREMAN, 4 TROUBLE SHOOTERS, 14 MECHANICS, 11 HELPERS
AND 6 OFFICE EMPLOYEES.  NO CLAIM OF COVERAGE IS MADE ON THE GROUND
THAT ANY OF THE PETITIONER'S EMPLOYEES WERE ENGAGED "IN (INTERSTATE)
COMMERCE," BUT ONLY THAT THEY WERE ENGAGED "IN PRODUCTION OF GOODS FOR
(INTERSTATE) COMMERCE." 

                        I 

AS TO COVERAGE, THE ACT IS UNAMBIGUOUS AND THE PETITIONER'S EMPLOYEES
COME SQUARELY WITHIN IT AS EMPLOYEES "ENGAGED IN THE PRODUCTION OF
GOODS FOR COMMERCE."  THIS TURNS ON SECS. 6(A), 7(A), 3(B), 3(I) AND
3(J).  SECTION 6(A) PROVIDES:  "EVERY EMPLOYER SHALL PAY TO EACH OF HIS
EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE WAGES AT THE FOLLOWING RATES 

..."  SECTION 7(A) LIKEWISE PROVIDES:  "NO EMPLOYER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE" AT
WAGES LESS THAN 1 1/2 TIMES THE REGULAR RATE, WHERE AN EMPLOYEE IS
EMPLOYED FOR MORE THAN THE MAXIMUM NUMBER OF HOURS PRESCRIBED. 


"(B)  'COMMERCE' MEANS TRADE, COMMERCE, TRANSPORTATION, TRANSMISSION,
OR COMMUNICATION AMONG THE SEVERAL STATES OR FROM ANY STATE TO ANY
PLACE OUTSIDE THEREOF. 

     .         .         .         .       . 

"(I)  'GOODS' MEANS GOODS (INCLUDING SHIPS AND MARINE EQUIPMENT),
WARES, PRODUCTS, COMMODITIES, MERCHANDISE, OR ARTICLES OR SUBJECTS OF
COMMERCE OF ANY CHARACTER, OR ANY PART OR INGREDIENT THEREOF, BUT DOES
NOT INCLUDE GOODS AFTER THEIR DELIVERY INTO THE ACTUAL PHYSICAL
POSSESSION OF THE ULTIMATE CONSUMER THEREOF OTHER THAN A PRODUCER,
MANUFACTURER, OR PROCESSOR THEREOF. 

"(J)  'PRODUCED' MEANS PRODUCED, MANUFACTURED, MINED, HANDLED, OR IN
ANY OTHER MANNER WORKED ON IN ANY STATE; AND FOR THE PURPOSES OF THIS
ACT AN EMPLOYEE SHALL BE DEEMED TO HAVE BEEN ENGAGED IN THE PRODUCTION
OF GOODS IF SUCH EMPLOYEE WAS EMPLOYED IN PRODUCING, MANUFACTURING,
MINING, HANDLING, TRANSPORTING, OR IN ANY OTHER MANNER WORKING ON SUCH
GOODS, OR IN ANY PROCESS OR OCCUPATION NECESSARY TO THE PRODUCTION
THEREOF, IN ANY STATE." 

PUTTING THESE DEFINITIONS TOGETHER IN THEIR OWN TERMS, SEC. 6(A), AS
APPLIED TO THE FACTS OF THIS CASE, PROVIDES IN EFFECT THAT "EVERY
EMPLOYER SHALL PAY (NOT LESS THAN THE REQUIRED MINIMUM WAGES) TO EACH
OF HIS EMPLOYEES WHO IS EMPLOYED IN ANY PROCESS OR OCCUPATION NECESSARY
TO THE PRODUCTION, IN ANY STATE, OF ANY PART OR INGREDIENT OF ANY
ARTICLES OR SUBJECTS OF TRADE, COMMERCE OR TRANSPORTATION, OF ANY
CHARACTER, FOR TRADE, COMMERCE OR TRANSPORTATION AMONG THE SEVERAL
STATES."  THIS DOES NOT REQUIRE THE EMPLOYEE TO BE DIRECTLY "ENGAGED IN
COMMERCE" AMONG THE SEVERAL STATES.  THIS DOES NOT REQUIRE THE EMPLOYEE
TO BE EMPLOYED EVEN IN THE PRODUCTION OF AN ARTICLE WHICH ITSELF
BECOMES THE SUBJECT OF COMMERCE OR TRANSPORTATION AMONG THE SEVERAL
STATES.  IT IS ENOUGH THAT THE EMPLOYEE BE EMPLOYED, FOR EXAMPLE, IN AN
OCCUPATION WHICH IS NECESSARY TO THE PRODUCTION OF A PART OF ANY OTHER
"ARTICLES OR SUBJECTS OF COMMERCE OF ANY CHARACTER" WHICH ARE PRODUCED
FOR TRADE, COMMERCE OR TRANSPORTATION AMONG THE SEVERAL STATES.  THIS
DOES NOT REQUIRE AN EMPLOYEE TO BE EMPLOYED EXCLUSIVELY IN THE
SPECIFIED OCCUPATION.  THIS DOES NOT REQUIRE THAT THE OCCUPATION IN
WHICH HE IS EMPLOYED BE INDISPENSABLE TO THE PRODUCTION UNDER
CONSIDERATION.  IT IS ENOUGH THAT HIS OCCUPATION BE "NECESSARY TO THE
PRODUCTION."  THERE MAY BE ALTERNATIVE OCCUPATIONS THAT COULD BE
SUBSTITUTED FOR IT BUT IT IS ENOUGH THAT THE ONE AT ISSUE IS NEEDED IN
SUCH PRODUCTION AND WOULD, IF OMITTED, HANDICAP THE PRODUCTION. 

THE NECESSITY TO THE PETITIONER'S CUSTOMERS, IN THEIR PRODUCTIVE
WORK, OF THE SALES MADE AND THE SERVICES SUPPLIED TO THEM BY THE
PETITIONER'S EMPLOYEES IS THE FOUNDATION OF PETITIONER'S BUSINESS.  THE
ESSENTIAL NEED FOR MOTORS AND WIRING IN THE CONDUCT OF ELECTRICALLY
OPERATED PRODUCTIVE PROCESSES OF MANUFACTURE IS BEYOND QUESTION.  WHEN
COMMERCIAL OR INDUSTRIAL PRODUCERS, SUCH AS THE PETITIONER'S CUSTOMERS,
USE ELECTRIC MOTORS IN THE PRODUCTION OF GOODS FOR INTERSTATE COMMERCE,
SERVICES SUCH AS THOSE OF PETITIONER'S EMPLOYEES ARE NECESSARY TO THE
CONTINUITY OF SUCH PRODUCTION.  SUCH SALES AND SERVICES MUST BE
IMMEDIATELY AVAILABLE TO PETITIONER'S CUSTOMERS OR THEIR PRODUCTION
WILL STOP.  IF NOT SUPPLIED TO THE CUSTOMERS BY EMPLOYEES OF THE
PETITIONER, SUCH CUSTOMERS WOULD HAVE TO EMPLOY COMPARABLE EMPLOYEES OF
THEIR OWN OR OF OTHER CONTRACTORS.  FN2 

THE WORK OF PETITIONER'S EMPLOYEES HAS "SUCH A CLOSE AND IMMEDIATE
TIE WITH THE PROCESS OF PRODUCTION FOR COMMERCE, AND WAS THEREFORE SO
MUCH AN ESSENTIAL PART OF IT, THAT THE EMPLOYEES ARE TO BE REGARDED AS
ENGAGED IN AN OCCUPATION 'NECESSARY TO THE PRODUCTION OF GOODS FOR
COMMERCE.'"  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 525-526.  THE
RELATION OF PETITIONER'S EMPLOYEES TO THE PRODUCTION OF GOODS FOR
INTERSTATE COMMERCE BY PETITIONER'S CUSTOMERS IS FULLY AS CLOSE AND
"NECESSARY" AS WAS THAT OF THE LOFT BUILDING WATCHMEN AND PORTERS TO
THE PETITIONER'S TENANTS IN KIRSCHBAUM CO. V. WALLING, SUPRA; THE
MANUFACTURING PLANT WATCHMAN OF THE RESPONDENT IN WALTON V. SOUTHERN
PACKAGE CORP., 320 U.S. 540; OR THE FIREGUARDS SUBJECT TO CALL IN
ARMOUR & CO. V. WANTOCK, 323 U.S. 126.  IN THE LATTER CASE THIS COURT
SAID (P. 130): 

"...  NO HARD AND FAST RULE MAY BE TRANSPOSED FROM ONE INDUSTRY TO
ANOTHER TO SAY WHAT IS NECESSARY IN 'THE PRODUCTION OF GOODS.'  WHAT IS
PRACTICALLY NECESSARY TO IT WILL DEPEND ON ITS ENVIRONMENT AND
POSITION....  WHAT IS REQUIRED IS A PRACTICAL JUDGMENT AS TO WHETHER
THE PARTICULAR EMPLOYER ACTUALLY OPERATES THE WORK AS PART OF AN
INTEGRATED EFFORT FOR THE PRODUCTION OF GOODS." 

THE FOREGOING CONCLUSIONS FOLLOW SO CLEARLY FROM THE LANGUAGE OF THE
STATUTE AS TO MAKE UNNECESSARY A DISCUSSION OF THE DECLARED PURPOSE OR
THE LEGISLATIVE HISTORY OF THE ACT TO SUPPORT THEM.  FN3

 II 

THE SECOND QUESTION IS WHETHER OR NOT PETITIONER'S EMPLOYEES ARE
EXEMPTED FROM THE ACT ON THE GROUND THAT PETITIONER IS A "SERVICE
ESTABLISHMENT" WITHIN THE MEANING OF SEC. 13(A)(2).  FN4  THE LANGUAGE
OF THAT CLAUSE IS CAPABLE OF TWO INTERPRETATIONS.  IF READ IN A
DETACHED AND BROAD SENSE, IT CAN BE MADE TO EXEMPT FROM THE ACT THE
EMPLOYEES OF THE PETITIONER TOGETHER WITH HUNDREDS OF THOUSANDS OF
OTHER EMPLOYEES LIKE THEM, TO THE SERIOUS DETRIMENT OF THE
EFFECTIVENESS OF THE ACT.  HOWEVER, IF READ IN CONNECTION WITH THE
DECLARED PURPOSE OF THE ACT AND IN THE LIGHT OF ITS LEGISLATIVE HISTORY
AND ADMINISTRATIVE INTERPRETATION, THE CLAUSE DOES NOT REACH EMPLOYEES
"ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE" AS WERE THOSE IN THIS
CASE.  WHEN SO READ, THE EXEMPTION REACHES EMPLOYEES OF ONLY SUCH
RETAIL OR SERVICE ESTABLISHMENTS AS ARE COMPARABLE TO THE LOCAL
MERCHANT, CORNER GROCER OR FILLING STATION OPERATOR WHO SELLS TO OR
SERVES ULTIMATE CONSUMERS WHO ARE AT THE END OF, OR BEYOND, THAT "FLOW
OF GOODS IN COMMERCE" WHICH IT IS THE PURPOSE OF THE ACT TO REACH.  SEE
SEC. 2, INFRA.  WITHOUT THIS CLAUSE SUCH LOCAL ESTABLISHMENTS MIGHT
FIND THEMSELVES TECHNICALLY COVERED BY THE ACT, NOT BECAUSE THEY WERE
"PRODUCING GOODS FOR (INTERSTATE) COMMERCE," BUT BECAUSE, FOR EXAMPLE,
THEY WERE RETAILING MILK NEAR A STATE LINE AND, THEREFORE, MIGHT BE
REGARDED AS ACTUALLY IN INTERSTATE COMMERCE WHEN DELIVERING RETAIL
SALES OF MILK TO LOCAL CUSTOMERS, ALL OF WHOM WERE ULTIMATE CONSUMERS
OF IT FOR THEIR PERSONAL USE, BUT A SMALL PROPORTION OF WHOM LIVED
ACROSS THE STATE LINE FROM THE MILK DEALER.  WALLING V. JACKSONVILLE
PAPER CO., 317 U.S. 564, 571; PHILLIPS CO. V. WALLING, 324 U.S. 490,
497.  SIMILARLY, IT WAS FELT THAT WITHOUT THIS EXEMPTION CLAUSE, THE
EMPLOYEES OF A LOCAL MERCHANT WHO PURCHASED HIS GOODS FROM OUTSIDE HIS
STATE BUT RETAILED THEM ALL WITHIN HIS STATE TO ULTIMATE CONSUMERS
ACROSS HIS COUNTER, MIGHT, NEVERTHELESS, TECHNICALLY BE COVERED BY THE
ACT AS BEING ACTUALLY "IN (INTERSTATE) COMMERCE" BECAUSE OF HIS
PURCHASES, ALTHOUGH HIS SALES ALL MIGHT BE AT "RETAIL" AND BEYOND THE
END OF THE "FLOW OF GOODS IN COMMERCE."  83 CONG. REC. 7393-7394, 7436
7438.  THE ORIGIN OF THIS CLAUSE, SEC. 13(A)(2), HAD NOTHING TO DO WITH
ESTABLISHMENTS "PRODUCING GOODS FOR (INTERSTATE) COMMERCE." 

IT IS RARE, IF NOT IMPOSSIBLE, FOR AN EMPLOYEE WHO IS ENGAGED IN AN
OCCUPATION NECESSARY TO THE PRODUCTION OF GOODS FOR INTERSTATE COMMERCE
TO BE SAID TO BE AT THE SAME TIME AN EMPLOYEE ENGAGED IN A RETAIL OR
SERVICE ESTABLISHMENT WHOSE SELLING AND SERVICING IS CONFINED TO
ULTIMATE CONSUMERS.  THESE EMPLOYMENTS ARE LARGELY MUTUALLY EXCLUSIVE. 
TO THE EXTENT THAT SALES OR SERVICES ARE NECESSARY FOR THE PRODUCTION
OF GOODS FOR INTERSTATE COMMERCE THEY GENERALLY ARE BY THAT HYPOTHESIS
NOT SALES OR SERVICES TO AN ULTIMATE CONSUMER FOR HIS PERSONAL USE AND,
ACCORDINGLY, ARE NEITHER "RETAIL" SALES NOR SERVICES OF A COMPARABLE
CHARACTER, WITHIN THE MEANING OF SEC. 13(A)(2). 

THE LOGIC OF THIS RESULT IS AS CLEAR AS THE DECLARED PURPOSE,
LEGISLATIVE HISTORY AND ADMINISTRATIVE PRACTICE WHICH COMBINE TO
PRODUCE IT. 

THE PURPOSES OF THE ACT ARE DECLARED AS FOLLOWS IN SEC. 2: 

"(A)  THE CONGRESS HEREBY FINDS THAT THE EXISTENCE, IN INDUSTRIES
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE, OF
LABOR CONDITIONS DETRIMENTAL TO THE MAINTENANCE OF THE MINIMUM STANDARD
OF LIVING NECESSARY FOR HEALTH, EFFICIENCY, AND GENERAL WELL-BEING OF
WORKERS (1) CAUSES COMMERCE AND THE CHANNELS AND INSTRUMENTALITIES OF
COMMERCE TO BE USED TO SPREAD AND PERPETUATE SUCH LABOR CONDITIONS
AMONG THE WORKERS OF THE SEVERAL STATES; (2) BURDENS COMMERCE AND THE
FREE FLOW OF GOODS IN COMMERCE; (3) CONSTITUTES AN UNFAIR METHOD OF
COMPETITION IN COMMERCE; (4) LEADS TO LABOR DISPUTES BURDENING AND
OBSTRUCTING COMMERCE AND THE FREE FLOW OF GOODS IN COMMERCE; AND (5)
INTERFERES WITH THE ORDERLY AND FAIR MARKETING OF GOODS IN COMMERCE. 
"(B)  IT IS HEREBY DECLARED TO BE THE POLICY OF THIS ACT, THROUGH THE
EXERCISE BY CONGRESS OF ITS POWER TO REGULATE COMMERCE AMONG THE
SEVERAL STATES, TO CORRECT AND AS RAPIDLY AS PRACTICABLE TO ELIMINATE
THE CONDITIONS ABOVE REFERRED TO IN SUCH INDUSTRIES WITHOUT
SUBSTANTIALLY CURTAILING EMPLOYMENT OR EARNING POWER."  52 STAT. 1060,
29 U.S.C. SEC. 202.    TO FAIL TO COVER IN THIS ACT THE MULTITUDE OF
EMPLOYEES WHO ARE ENGAGED IN ESTABLISHMENTS LIKE THAT OF THE PETITIONER
AND WHICH SUPPLY THE MATERIALS AND SERVICES CURRENTLY NEEDED FOR THE
MAINTENANCE OF PRODUCTIVE MACHINERY USED BY THOSE WHO PRODUCE GOODS FOR
INTERSTATE COMMERCE WOULD TAKE THE HEART OUT OF THIS ACT.  SAVINGS
RESULTING FROM SUBSTANDARD LABOR CONDITIONS WOULD BE REFLECTED DIRECTLY
INTO COMPETITIVE COSTS.  THIS WOULD WEAKEN THE GOVERNMENTAL MECHANISM
FOR SUSTAINING "THE MINIMUM STANDARD OF LIVING NECESSARY FOR THE
HEALTH, EFFICIENCY, AND GENERAL WELL-BEING OF WORKERS" REFERRED TO AS
THE PURPOSE OF THE ACT.  FN5 

THE PRIMARY PURPOSE OF THE ACT IS NOT SO MUCH TO REGULATE INTERSTATE
COMMERCE AS SUCH, AS IT IS, THROUGH THE EXERCISE OF LEGISLATIVE POWER,
TO PROHIBIT THE SHIPMENT OF GOODS IN INTERSTATE COMMERCE IF THEY ARE
PRODUCED UNDER SUBSTANDARD LABOR CONDITIONS.  SUCH A PROHIBITION IS AN
APPROPRIATE EXERCISE OF THE POWER OF CONGRESS OVER INTERSTATE
COMMERCE.  UNITED STATES V. DARBY, 312 U.S. 100, 115; UNITED STATES V.
CAROLENE PRODUCTS CO., 304 U.S. 144, 147.  THIS ACT SEEKS TO ELIMINATE
SUBSTANDARD LABOR CONDITIONS, INCLUDING CHILD LABOR, ON A WIDE SCALE
THROUGHOUT THE NATION.  THE PURPOSE IS TO RAISE LIVING STANDARDS.  THIS
PURPOSE WILL FAIL OF REALIZATION UNLESS THE ACT HAS SUFFICIENTLY BROAD
COVERAGE TO ELIMINATE IN LARGE MEASURE FROM INTERSTATE COMMERCE THE
COMPETITIVE ADVANTAGE ACCRUING FROM SAVINGS IN COSTS BASED UPON
SUBSTANDARD LABOR CONDITIONS.  OTHERWISE THE ACT WILL BE INEFFECTIVE,
AND WILL PENALIZE THOSE WHO PRACTICE FAIR LABOR STANDARDS AS AGAINST
THOSE WHO DO NOT. 

THE ORIGINAL BILL PROVIDED FOR A LABOR STANDARDS BOARD WHICH WAS
GIVEN BROAD AUTHORITY TO ISSUE REGULATIONS AND ORDERS TO CARRY OUT THE
PROVISIONS OF THE ACT INCLUDING AUTHORITY TO DETERMINE SOME QUESTIONS
OF COVERAGE.  IT LISTED NO SPECIFIC EXEMPTIONS SUCH AS ARE NOW
CONTAINED IN SEC. 13.  IN THE JOINT HEARINGS ON THIS BILL (JOINT
HEARINGS, 75TH CONG., 1ST SESS., ON S. 2475 AND H.R. 7200, PP. 1-89,
SEE ESPECIALLY PP. 24-25, 24-29, 35 ET SEQ.), THE CHAIRMAN OF THE
SENATE COMMITTEE ON EDUCATION AND LABOR ASKED THE ASSISTANT ATTORNEY
GENERAL (P. 35) - 

"WOULD YOU EXPLAIN UNDER JUST WHAT CIRCUMSTANCES AND UNDER WHAT
CIRCUMSTANCES ONLY, IT WOULD BE POSSIBLE FOR THE REGULATION OF RETAIL
ESTABLISHMENTS AND SMALL BUSINESS ENTERPRISES TO COME UNDER THIS
BILL?"  TO WHICH HE REPLIED - 

"IT WAS NOT INTENDED BY THIS BILL TO APPLY GENERALLY TO RETAILERS OR
TO APPLY TO THE SERVICE TRADES, SUCH AS THE FILLING-STATION ATTENDANT,
AND THE PANTS PRESSER AND SMALL BUSINESS GENERALLY. 

     .         .         .         .         . 

"PRACTICALLY, THE SITUATION IN WHICH A LOCAL MERCHANT MIGHT BE
AFFECTED WOULD BE IF HE WERE MOVING HIS GOODS IN THE COURSE OF DELIVERY
ACROSS THE STATE LINE TO A SUBSTANTIAL EXTENT SO THAT HE WERE ENGAGING
IN INTERSTATE COMMERCE; BUT GENERALLY SPEAKING, THE POLICY OF THE BILL
IS NOT TO INCLUDE THE SERVICE TRADES AND SMALL BUSINESSES AND THE
RETAILING ENTERPRISES." 

ANY EMPLOYER EMPLOYING LESS THAN A FIXED MINIMUM NUMBER OF EMPLOYEES
EXCEPT IN THOSE CIRCUMSTANCES WHERE THE LABOR STANDARDS BOARD FOUND
THAT THE MAINTENANCE OF APPROPRIATE FAIR LABOR STANDARDS BY EVEN SUCH A
CLASS OF EMPLOYERS WAS NECESSARY OR APPROPRIATE IN ORDER TO CARRY OUT
THE PURPOSES, OR PREVENT THE CIRCUMVENTION, OF ANY PROVISION OF THE
ACT.  THE REQUIREMENT OF A MINIMUM SIZE FOR AN INCLUDED ESTABLISHMENT,
AND THE PROVISIONS FOR THE BOARD AND ITS DISCRETIONARY POWER WERE LATER
ELIMINATED BUT THE PURPOSE OF ALL OF THESE PROVISIONS IS SERVED TO A
SUBSTANTIAL DEGREE BY THE INSERTION OF SEC. 13 IN THEIR PLACE. 

WHILE ITS LANGUAGE AND COVERAGE WERE CHANGED IN DETAILS, THE BILL DID
NOT DEPART SUBSTANTIALLY FROM ITS ORIGINAL PURPOSE.  THIS PURPOSE
REMAINS THE KEY TO THE MEANING OF THE WORDS DEFINING ITS COVERAGE AND
ALSO TO THOSE DEFINING EXEMPTION FROM ITS COVERAGE.  THERE NEVER WAS AN
INTENT EXPRESSED TO EXEMPT RETAILERS OTHER THAN THE LOCAL MERCHANTS OF
THE TYPE DEALING WITH THE ULTIMATE CONSUMER.  SECTION 13(A)(2)
CLARIFIED THE EXEMPTION OF SUCH OF THESE AS WERE NEAR STATE LINES AND
OF LOCAL MERCHANTS WHOSE PURCHASES MIGHT BE INTERSTATE ALTHOUGH THE
GREATER PART OF THEIR SALES WERE INTRASTATE.  FN6 

IN THE BILL AS REPORTED TO THE HOUSE OF REPRESENTATIVES, APRIL 21,
1938, THE DECLARATION OF PURPOSES REFERRED TO "SUBSTANDARD LABOR
CONDITIONS IN OCCUPATIONS IN COMMERCE, IN THE PRODUCTION OF GOODS FOR
COMMERCE, OR OTHERWISE AFFECTING COMMERCE."  FN7  THE BREADTH OF THE
PHRASE "AFFECTING COMMERCE" WAS SO UNCERTAIN AND DIFFICULT OF
DEFINITION THAT IT WAS AT FIRST PROPOSED IN THE BILL TO GRANT TO A
LABOR STANDARDS BOARD, AND LATER TO THE SECRETARY OF LABOR, AUTHORITY
TO DETERMINE WHAT SHOULD BE CONSIDERED AS ACTUALLY "AFFECTING COMMERCE"
WITHIN THE MEANING OF THE ACT.  THIS PROPOSAL PROVED UNSATISFACTORY AND
CONGRESS FINALLY CHOSE TO FOREGO THE EXERCISE OF ITS FULL
CONSTITUTIONAL POWER AND ELIMINATED FROM THE ACT THE CLAUSE "AFFECTING
COMMERCE."  THE REMAINING COVERAGE RELATES ONLY TO EMPLOYEES (1) "IN
(INTERSTATE) COMMERCE,"  - FROM WHOM SEC. 13(A)(2) EXEMPTS EMPLOYEES OF
RETAIL AND SERVICE ESTABLISHMENTS THE GREATER PART OF WHOSE SELLING OR
SERVICING IS IN INTRASTATE COMMERCE - AND TO THOSE (2) "IN PRODUCTION
OF GOODS FOR (INTERSTATE) COMMERCE."  THE DEBATES IN CONGRESS SHOW AN
INTENT TO RESTRICT THE WORD "RETAIL" TO SUCH TRANSACTIONS WITH ULTIMATE
CONSUMERS AS ARE COMMONLY CARRIED ON AT LOCAL DRY GOODS, BUTCHERING, OR
GROCERY STORES.  THE WORDS "SERVICE ESTABLISHMENTS" AND "SERVICING,"
HOWEVER, WERE INTRODUCED IN THE FINAL CONFERENCE REPORT AND WERE NOT
DISCUSSED ON THE FLOOR.  FN8  83 CONG. REC. 9161, 9249. 

RETURNING TO THE TEXT OF THE ACT AND TO ITS AUTHORITATIVE
ADMINISTRATIVE INTERPRETATION, FURTHER CONFIRMATION IS APPARENT.  IN
GENERAL USAGE THE NOUN "RETAIL" MEANS "THE SALE OF COMMODITIES IN SMALL
QUANTITIES OR PARCELS; - OPPOSED TO WHOLESALE."  THE VERB "RETAIL"
MEANS "TO SELL IN SMALL QUANTITIES, AS BY THE SINGLE YARD, POUND,
GALLON, ETC.; TO SELL DIRECTLY TO THE CONSUMER; AS, TO RETAIL CLOTH OR
GROCERIES."  WEBSTER'S NEW INTERNATIONAL DICTIONARY, UNABRIDGED (2D
ED., 1938). 

IN THE SUGGESTED USE OF THE WORD "RETAIL" AS OPPOSED TO THE WORD
"WHOLESALE," A DISTINCTION APPEARS NOT MERELY BETWEEN THE SIZE AND
VOLUME OF THE SALES BUT BETWEEN TYPES OF PURCHASERS.  FOR EXAMPLE - 

"WHOLESALING INCLUDES ALL MARKETING TRANSACTIONS IN WHICH THE
PURCHASER IS ACTUATED SOLELY BY A PROFIT OR BUSINESS MOTIVE IN MAKING
THE PURCHASE. 

"RETAILING INCLUDES ALL MARKETING TRANSACTIONS IN WHICH THE PURCHASER
IS ACTUATED SOLELY BY A DESIRE TO SATISFY HIS OWN PERSONAL WANTS OR
THOSE OF HIS FAMILY OR FRIENDS THROUGH THE PERSONAL USE OF THE
COMMODITY OR SERVICE PURCHASED."  (BECKMAN AND ENGLE IN WHOLESALING
PRINCIPLES AND PRACTICE (1937) P. 25.) 

SIMILARLY THE ENCYCLOPEDIA OF SOCIAL SCIENCES STATES THAT "THE
DISTINGUISHING FEATURE OF THE RETAIL TRADE  ...  CONSISTS IN SELLING
MERCHANDISE TO ULTIMATE CONSUMERS," (VOL. 13, P. 346), WHEREAS
WHOLESALING IS SAID TO COVER SALES "TO A RETAILER, A WHOLESALER OR AN
INDUSTRIAL CONSUMER SO LONG AS THE PURPOSE OF THE CUSTOMER IN BUYING
SUCH GOODS IS TO RESELL THEM IN ONE FORM OR ANOTHER OR TO USE THEM FOR
BUSINESS NEEDS AS SUPPLIES OR EQUIPMENT."  (VOL. 15, P. 411.) 

GOVERNMENTAL USAGE MAKES THE SAME DISTINCTION ON THE BASIS OF THE USE
FOR WHICH THE GOODS ARE PURCHASED.  THE BUREAU OF THE CENSUS STATES IN
ITS DEFINITION OF "WHOLESALE" THAT "IN GENERAL, THE DISTINGUISHING
CHARACTERISTIC IS THAT GOODS SOLD AT WHOLESALE ARE TO BE USED FOR
BUSINESS PURPOSES (SUCH AS MATERIALS FOR FURTHER PROCESSING AND
FABRICATION, MERCHANDISE FOR RESALE UNCHANGED, ETC.), RATHER THAN FOR
PERSONAL OR HOUSEHOLD CONSUMPTION."  U.S. CENSUS OF BUSINESS, 1939,
INSTRUCTIONS TO ENUMERATORS FOR BUSINESS AND MANUFACTURERS, P. 18; ALSO
VOL. I, RETAIL TRADE, P. 1; VOL. II, WHOLESALE TRADE, P. 1.  IT
CLASSIFIES AS "WHOLESALE SALES," SALES OF GOODS OR MERCHANDISE "TO
TRADING ESTABLISHMENTS OF ALL KINDS, TO INSTITUTIONS, INDUSTRIAL,
COMMERCIAL, AND PROFESSIONAL USERS, AND SALES TO GOVERNMENTAL BODIES." 
(IBID.) THE BUREAU OF THE BUDGET, IN ITS STANDARD INDUSTRIAL
CLASSIFICATION MANUAL, LIKEWISE CLASSIFIES "WHOLESALE TRADE" TO INCLUDE
"ALL ESTABLISHMENTS OR PLACES OF BUSINESS ENGAGED PRIMARILY IN SELLING
MERCHANDISE TO RETAILERS, TO INDUSTRIAL OR COMMERCIAL USERS, OR TO
OTHER WHOLESALERS  ..."  VOL. II - NONMANUFACTURING INDUSTRIES, 1942,
P. 35.  IT DEFINES "RETAIL TRADE" TO INCLUDE "ESTABLISHMENTS ENGAGED IN
SELLING MERCHANDISE FOR PERSONAL OR HOUSEHOLD CONSUMPTION AND RENDERING
SERVICES INCIDENTAL TO THE SALES OF GOODS."  (IBID.) SIMILARLY THE
SOCIAL SECURITY BOARD, IN ITS INDUSTRIAL CLASSIFICATION CODE, VOL. I,
DESCRIPTION OF INDUSTRIES, 1942, PP. 99-100, PREPARED FOR USE OF THE
BOARD AND STATE AGENCIES ADMINISTERING EMPLOYMENT SECURITY LEGISLATION,
DISTINGUISHES BETWEEN WHOLESALE AND RETAIL ESTABLISHMENTS ON THE BASIS
OF WHETHER THE GOODS THEY SELL ARE TO BE USED FOR BUSINESS PURPOSES OR
FOR PERSONAL OR HOUSEHOLD PURPOSES. 

THE WORD "RETAIL" BECAUSE OF ITS READY CONTRAST WITH "WHOLESALE" IS
GENERALLY MORE RESTRICTIVE THAN THE WORD "SERVICE."  THE TWO, HOWEVER,
ARE USED SO CLOSELY TOGETHER IN THIS STATUTE AS TO REQUIRE THEM TO BE
INTERPRETED SIMILARLY.  THIS MAKES IT APPROPRIATE TO RESTRICT THE
BROADER MEANING OF "SERVICE" TO A MEANING COMPARABLE TO THAT GIVEN THE
NARROWER TERM "RETAIL."  THE WORDS ARE PUT ON A LIKE LEVEL ESPECIALLY
BY THEIR USE IN THE ALTERNATIVE WITH THE SINGLE WORD "ESTABLISHMENT" IN
THE PHRASE "ANY RETAIL OR SERVICE ESTABLISHMENT THE GREATER PART OF
WHOSE SELLING OR SERVICING IS IN INTRASTATE COMMERCE."  ACCORDINGLY, IN
PROPORTION AS THE MEANING OF THE WORD "RETAIL" IS RESTRICTED TO SALES
MADE IN SMALL QUANTITIES TO ULTIMATE CONSUMERS TO MEET PERSONAL RATHER
THAN COMMERCIAL AND INDUSTRIAL USES OF THOSE ARTICLES, SO IT IS
CORRESPONDINGLY APPROPRIATE TO RESTRICT THE WORD "SERVICE" TO SERVICES
TO ULTIMATE USERS OF THEM FOR PERSONAL RATHER THAN COMMERCIAL
PURPOSES.  THIS IS SUPPORTED BY JUDICIAL INTERPRETATION OF THE CLAUSE. 
FN9 

THE ADMINISTRATIVE INTERPRETATION BY THE ADMINISTRATOR OF THE WAGE
AND HOUR DIVISION OF THE TERMS "RETAIL AND SERVICE ESTABLISHMENTS,"
"RETAIL SALES" AND "SERVICES" AS USED IN THIS CONNECTION REINFORCES THE
INTERPRETATIONS ABOVE STATED,  FN10  AND THIS COURT, IN SPEAKING OF
INTERPRETATIONS OF THIS ACT BY THE WAGE AND HOUR DIVISION, HAS SAID:
"IN ANY CASE SUCH INTERPRETATIONS ARE ENTITLED TO GREAT WEIGHT." 
UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 549.  SEE
ALSO, SKIDMORE V. SWIFT & CO., 323 U.S. 134, 140.  THE ADMINISTRATOR
CLASSIFIES AS "NON-RETAIL" MANY TYPES OF SALES CLOSELY COMPARABLE TO
THOSE MADE BY THE PETITIONER IN THIS CASE, OF MOTORS, GENERATORS AND
SIMILAR EQUIPMENT TO COMMERCIAL AND INDUSTRIAL CUSTOMERS FOR THEIR USE
IN PRODUCING GOODS FOR INTERSTATE COMMERCE.  FN11 

ALTHOUGH IN THIS CASE THE MOTORS SOLD BY THE PETITIONER WERE NOT
PURCHASED BY ITS CUSTOMERS FOR RESALE OR TO BE PROCESSED FOR RESALE,
AND ALTHOUGH THEY WERE TO BE USED AND PROBABLY ULTIMATELY TO BE
"CONSUMED" IN THE HANDS OF THE PETITIONER'S CUSTOMERS, THESE MOTORS
REMAINED ACTIVELY IN USE IN THE PRODUCTION OF THE "FLOW OF GOODS IN
COMMERCE."  IT IS TO THIS GREAT FIELD OF THE PRODUCTION OF GOODS FOR
INTERSTATE COMMERCE THAT THE ACT IS DIRECTED. 

THE RECORD ESTABLISHES THE "COMMERCIAL AND INDUSTRIAL" CHARACTER OF
THE PETITIONER'S CUSTOMERS.  THE PETITIONER'S CIRCULAR ADVERTISES ITS
BUSINESS AS THAT OF "ELECTRICAL ENGINEERS, MOTOR DEALERS, COMMERCIAL
AND INDUSTRIAL WIRING."  THE CIRCULAR OFFERS "SERVICE FOR ALL TYPES OF
COMMERCIAL AND INDUSTRIAL WIRING."  THE STIPULATION FILED BY THE
PETITIONER SHOWS THAT 99% OF ITS "ACTIVE ACCOUNTS AS REFLECTED IN ITS
ACCOUNTS RECEIVABLE LEDGER  ...  ARE COMMERCIAL OR INDUSTRIAL FIRMS." 
THESE ARE NOT "RETAIL" CUSTOMERS IN THE SAME SENSE AS IS THE CUSTOMER
OF THE LOCAL MERCHANT, LOCAL GROCER OR FILLING STATION OPERATOR WHO
BUYS FOR HIS OWN PERSONAL CONSUMPTION.  THE FAIR LABOR STANDARDS ACT IS
CONCERNED WITH GOODS IN THE STREAM OF COMMERCE BUT NOT WITH THOSE IN
"THE ACTUAL PHYSICAL POSSESSION OF THE ULTIMATE CONSUMER THEREOF OTHER
THAN A PRODUCER, MANUFACTURER, OR PROCESSOR THEREOF."  SEE SEC. 3(I),
SUPRA. 

FOR THESE REASONS THE EMPLOYEES OF THE PETITIONER WERE PROPERLY HELD
TO BE ENGAGED IN THE PRODUCTION OF GOODS FOR INTERSTATE COMMERCE UNDER
THE COVERAGE OF THE FAIR LABOR STANDARDS ACT AND WERE NOT TAKEN OUT OF
THAT COVERAGE BY THE EXEMPTION STATED IN SEC. 13(A)(2).  THE JUDGMENT
OF THE CIRCUIT COURT OF APPEALS ACCORDINGLY IS AFFIRMED. 

FN1  COMPARE FLEMING V. A.B. KIRSCHBAUM CO., 124 F.2D 567, 572, AND
FLEMING V. ARSENAL BLDG. CORP., 125 F.2D 278, 280, BOTH AFFIRMED SUB
NOM. KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, WITHOUT DISPOSING OF THE
QUESTION NOW PRESENTED; GUESS V. MONTAGUE, 140 F.2D 500; BRACEY V.
LURAY, 138 F.2D 8; WITH LONAS V. NATIONAL LINEN CORP., 136 F.2D 433,
CERT. DENIED, 320 U.S. 785; MARTINO V. MICHIGAN WINDOW CLEANING CO.,
145 F.2D 163, CERT. GRANTED, 325 U.S. 849.    FN2  THE DEPENDENCE OF
THE COMMERCIAL AND INDUSTRIAL CUSTOMERS OF THE PETITIONER UPON SUCH
SALES AND SERVICES IS WELL PRESENTED IN THE PETITIONER'S ADVERTISING
CIRCULAR: 

"IT COSTS MORE TO OPERATE A FAULTY MOTOR THAN TO BUY A NEW ONE.  BUT
IT ISN'T NECESSARY TO BUY A NEW MOTOR.  WE'LL RECONDITION YOUR PRESENT
MOTORS TO GIVE YOU THE SAME SERVICE AND SATISFACTION AS NEW ONES.  AND
WE'LL SAVE YOU 25% TO 50% ON NEW MOTOR COSTS.... 

"WHEN A MOTOR SUDDENLY GOES DEAD OR LAGS, WHEN TROUBLE IN ELECTRICAL
EQUIPMENT ARISES, YOU NEED SERVICE AND YOU NEED IT QUICK.  EVERY SECOND
OF DELAY MEANS MORE DOLLARS LOST.  HOW WELL DO WE APPRECIATE WHAT SPEED
MEANS TO OUR PATRONS, AS WELL AS DEPENDABLE WORKMANSHIP.... 

"NO JOB IS TOO SMALL OR TOO LARGE TO HANDLE PROMPTLY.  TEMPORARY
REPLACEMENTS CAN BE MADE IMMEDIATELY FROM OUR STOCKS.  NO CHARGE IS
MADE FOR EQUIPMENT THAT IS LOANED WHILE REPAIRS ARE BEING MADE." 

FN3  THE DECISION DOES NOT REST ON THE SMALL QUANTITIES OF SCRAP
ANNUALLY SOLD, MELTED DOWN AND SHIPPED IN INTERSTATE COMMERCE, NOR ON
THE SMALL AMOUNT OF WORK PERFORMED BY THE PETITIONER IN MARYLAND
DIRECTLY FOR CUSTOMERS OUTSIDE OF THE STATE, NOR UPON THE SMALL NUMBERS
OF SALES OF REBUILT MOTORS TO CUSTOMERS OUTSIDE OF THE STATE.  THE
RESULT REACHED MAKES IT UNNECESSARY TO CONSIDER WHETHER ANY OR ALL OF
THE PETITIONER'S EMPLOYEES WERE ENGAGED "IN (INTERSTATE) COMMERCE" AS
DISTINGUISHED FROM THE "PRODUCTION OF GOODS FOR (INTERSTATE)
COMMERCE." 

FN4  "SEC.  13.  (A) THE PROVISIONS OF SECTIONS 6 AND 7 SHALL NOT
APPLY WITH RESPECT TO  ...  (2) ANY EMPLOYEE ENGAGED IN ANY RETAIL OR
SERVICE ESTABLISHMENT THE GREATER PART OF WHOSE SELLING OR SERVICING IS
IN INTRASTATE COMMERCE; ..."  52 STAT. 1060, 1067, 29 U.S.C. SEC.
213(2). 

FN5  PHILLIPS CO. V. WALLING, 324 U.S. 490, 493.  THE BILL WAS
INTRODUCED MAY 24, 1937, AS S. 2475 AND H.R. 7200, ACCOMPANIED BY A
PRESIDENTIAL MESSAGE.  THE SPONSOR OF THE BILL AGREED THAT THE BILL WAS
"INTENDED TO CARRY OUT THE SUGGESTIONS MADE BY THE PRESIDENT IN HIS
MESSAGE."  81 CONG. REC. 4960, 4961.  THE PRESIDENT SAID "TO PROTECT
THE FUNDAMENTAL INTERESTS OF FREE LABOR AND A FREE PEOPLE WE PROPOSE
THAT ONLY GOODS WHICH HAVE BEEN PRODUCED UNDER CONDITIONS WHICH MEET
THE MINIMUM STANDARDS OF FREE LABOR SHALL BE ADMITTED TO INTERSTATE
COMMERCE.  GOODS PRODUCED UNDER CONDITIONS WHICH DO NOT MEET
RUDIMENTARY STANDARDS OF DECENCY SHOULD BE REGARDED AS CONTRABAND AND
OUGHT NOT TO BE ALLOWED TO POLLUTE THE CHANNELS OF INTERSTATE TRADE." 
ID. AT 4961.  THE PRESIDENT EMPHASIZED HIS PURPOSE TO FOLLOW THE
REASONING OF MR. JUSTICE HOLMES' DISSENTING OPINION IN THE 5 TO 4
DECISION IN HAMMER V. DAGENHART, 247 U.S. 251, 277.  THIS COURT HAS NOW
OVERRULED THAT DECISION AND UNANIMOUSLY UPHELD THE CONSTITUTIONALITY OF
THE FAIR LABOR STANDARDS ACT OF 1938.  UNITED STATES V. DARBY, 312 U.S.
100, 115-117.  THE BILL BECAME KNOWN AS THE "WAGE AND HOUR BILL." 
LATER IT RECEIVED ITS OFFICIAL TITLE OF THE "FAIR LABOR STANDARDS ACT
OF 1938."  THE RESPECTIVE BILLS WERE REFERRED TO THE COMMITTEE ON
EDUCATION AND LABOR IN THE SENATE AND THE COMMITTEE ON LABOR IN THE
HOUSE.  JOINT HEARINGS WERE HAD BEFORE THESE COMMITTEES JUNE 2-5, 7-15,
21 AND 22, 1937.  HEARINGS ON S. 2475 AND H.R. 7200, 75TH CONG., 1ST
SESS.  IT WAS REPORTED TO THE SENATE JULY 8, 1937 WITH AMENDMENTS. 
SEN. REP. NO. 884, 75TH CONG., 1ST SESS.  AFTER FULL DISCUSSION IT WAS
PASSED BY THE SENATE JULY 31, 1937, WITH AMENDMENTS.  81 CONG. REC.
7957.  IN THAT FORM IT WAS REFERRED TO THE COMMITTEE ON LABOR OF THE
HOUSE, AND WAS REPORTED OUT AUGUST 6, 1937(H. REP. NO. 1452, 75TH
CONG., 1ST SESS.), WITHOUT SIGNIFICANT CHANGES AS TO COVERAGE OR
EXEMPTIONS.  AFTER DEBATE, IT WAS RECOMMITTED TO THE COMMITTEE ON LABOR
DECEMBER 17, 1937(82 CONG. REC. 1835), INCLUDING PARTICULARLY THE
SUBSTITUTION OF A SINGLE ADMINISTRATOR IN PLACE OF THE FAIR LABOR
STANDARDS BOARD PROPOSED IN THE ORIGINAL BILL.  IT WAS AGAIN REPORTED
FAVORABLY BY THE HOUSE COMMITTEE ON LABOR APRIL 21, 1938, WITH
AMENDMENTS.  H. REP. NO. 2182, 75TH CONG., 3D SESS.  AFTER DEBATE, IT
WAS PASSED BY THE HOUSE MAY 24, 1938.  83 CONG. REC. 7449.  IT WENT TO
CONFERENCE BETWEEN THE TWO HOUSES AND WAS REPORTED OUT OF CONFERENCE
WITH SEVERAL AMENDMENTS IN SUBSTANTIALLY ITS PRESENT FORM AND THE
CONFERENCE REPORTS WERE ADOPTED IN BOTH HOUSES JUNE 14, 1938.  83 CONG.
REC. 9158, 9246.  IT WAS APPROVED BY THE PRESIDENT JUNE 25, 1938.  THE
QUESTIONS OF COVERAGE AND EXEMPTION ARE CLOSELY RELATED TO EACH OTHER
IN THE DISCUSSION IN CONGRESS AND IN THE AMENDMENTS ADOPTED. 

FN6  THE ORIGINAL SENATE COMMITTEE REPORT SAID (SEN. REP. NO. 884,
75TH CONG., 1ST SESS., P. 5): 

"THE BILL CAREFULLY EXCLUDES FROM ITS SCOPE BUSINESS IN THE SEVERAL
STATES THAT IS OF A PURELY LOCAL NATURE.  IT APPLIES ONLY TO THE
INDUSTRIAL AND BUSINESS ACTIVITIES OF THE NATION INSOFAR AS THEY
UTILIZE THE CHANNELS OF INTERSTATE COMMERCE, OR SERIOUSLY AND
SUBSTANTIALLY BURDEN OR HARASS SUCH COMMERCE.  IT LEAVES TO STATE AND
LOCAL COMMUNITIES THEIR OWN RESPONSIBILITIES CONCERNING THOSE LOCAL
SERVICE AND OTHER BUSINESS TRADES THAT DO NOT SUBSTANTIALLY INFLUENCE
THE STREAM OF INTERSTATE COMMERCE.  FOR EXAMPLE, THE POLICY IN THIS
REGARD IS SUCH THAT IT IS NOT EVEN INTENDED TO INCLUDE IN ITS SCOPE
THOSE PURELY LOCAL AND SMALL BUSINESS ESTABLISHMENTS THAT HAPPEN TO LIE
NEAR STATE LINES, AND SOLELY ON ACCOUNT OF SUCH LOCATION, ACTUALLY
SERVE A WHOLLY LOCAL COMMUNITY TRADE WITHIN TWO STATES." 

SEE ALSO, NOTE 8, INFRA; WALLING V. JACKSONVILLE PAPER CO., 317 U.S.
564, 571, AND PHILLIPS CO. V. WALLING, 324 U.S. 490, 497. 

FN7  SECTION 2(A), S. 2475 ACCOMPANYING REPORT NO. 2182 ON UNION
CALENDAR NO. 804 IN THE HOUSE OF REPRESENTATIVES, 75TH CONG., 3D SESS. 

FN8  SEE, DEBATES IN HOUSE OF REPRESENTATIVES, 83 CONG. REC. 7393
7394, 7436-7438.  IT IS HERE THAT SEC. 13(A)(2) HAD ITS ORIGIN IN AN
AMENDMENT PRESENTED BY REPRESENTATIVE CELLER AND ACCEPTED BY CHAIRMAN
NORTON OF THE HOUSE COMMITTEE ON LABOR.  IT PROVIDED FOR THE INSERTION
OF THE WORDS "BUT NO SUCH ORDER SHALL BE APPLICABLE TO ANY RETAIL
INDUSTRY, THE GREATER PART OF WHOSE SALES IS IN INTRASTATE COMMERCE." 

IT WAS INTENDED "TO ELIMINATE RETAILING" AND TO PREVENT THE
CLASSIFICATION OF EMPLOYEES OF RETAIL ESTABLISHMENTS AS EMPLOYEES
ENGAGED IN INTERSTATE COMMERCE BECAUSE OF EITHER PURCHASES OR SALES
MADE BY SUCH EMPLOYERS ACROSS STATE LINES.  REPRESENTATIVE CELLER SAID
(83 CONG. REC. 7438): 

"THE COURTS WILL LOOK TO THE DEBATES IN THIS HOUSE FOR WHAT IS MEANT
BY THESE WORDS....  IF YOU WANT TO ELIMINATE RETAILING, YOU SHOULD SAY
SO IN CLEAR-CUT LANGUAGE, AND THIS AMENDMENT WHICH I OFFER INDICATES IN
THE CLEAREST WAY THAT RETAILING IS EXEMPTED....  ACCEPT IT AND THEN
RETAIL DRY GOODS, RETAIL BUTCHERING, GROCERS, RETAIL CLOTHING STORES,
DEPARTMENT STORES WILL ALL BE EXEMPT." 

REPRESENTATIVE NORTON REPLIED:  "...  IN VIEW OF THE GREAT
MISUNDERSTANDING THERE MUST BE ABOUT THIS RETAILING FEATURE OF THE
BILL, THE COMMITTEE WILL ACCEPT THE AMENDMENT.  THERE HAS BEEN A GREAT
DEAL OF DOUBT AS TO THE UNDERSTANDING OF THAT PARTICULAR SECTION, AND I
THINK THIS AMENDMENT WILL NOT WEAKEN OUR BILL, BUT WILL IN FACT
STRENGTHEN IT." 

THE AMENDMENT THEREUPON WAS AGREED TO.  (AYES, 145 - NOES, 56.) 

REPRESENTATIVE JOHNSON OF OKLAHOMA, IN WITHDRAWING AN AMENDMENT WHICH
WOULD HAVE EXPRESSLY STRICKEN OUT INTERSTATE PURCHASES AS A BASIS FOR
BRINGING WITHIN THE ACT EMPLOYEES OF AN INDUSTRY MAKING SUCH PURCHASES,
THEN SAID: 

"...  THE AMENDMENT  ...  OFFERED BY THE GENTLEMAN FROM NEW YORK (MR.
CELLER), WHICH AMENDMENT HAS BEEN APPROVED BY THIS BODY, IS TO PROTECT
THE LITTLE CORNER STORE, FILLING STATION, AND OTHER RETAILERS WHO
PURCHASE A SUBSTANTIAL PART OF THEIR GOODS ACROSS THE STATE LINE." 

FN9  GUESS V. MONTAGUE, 140 F.2D 500, 503; CF. FLEMING V. ARSENAL
BLDG. CORP., 125 F.2D 278, 280, AFFIRMED SUB NOM., KIRSCHBAUM CO. V.
WALLING, 316 U.S. 517, 526. 

FN10  INTERPRETATIVE BULLETIN NO. 6 OF THE WAGE AND HOUR DIVISION OF
THE UNITED STATES DEPARTMENT OF LABOR AND UNDER THE TITLE OF "RETAIL
AND SERVICE ESTABLISHMENT - THE SCOPE AND APPLICABILITY OF THE
EXEMPTION PROVIDED BY SECTION 13(A)(2) OF THE FAIR LABOR STANDARDS ACT
OF 1938" ORIGINALLY ISSUED DECEMBER, 1938, AND REVISED JUNE, 1941, 2
C.C.H. LABOR LAW SERVICE, P32,106. 

SOME OF THESE INTERPRETATIONS ARE AS FOLLOWS: 

"SECTION 13(A)(2), WAS INTENDED TO APPLY TYPICALLY TO THE GROCERY
STORE, BUTCHER SHOP, HABERDASHERY, CLOTHING STORE, FILLING STATION,
BEAUTY PARLOR, HOTEL, AND SIMILAR COMMONLY RECOGNIZED RETAIL AND
SERVICE ESTABLISHMENTS."  PAR. 3. 

"A RETAIL SALE IS A SALE OF GOODS FOR DIRECT CONSUMPTION AND NOT FOR
PURPOSES OF RESALE OR REDISTRIBUTION IN ANY FORM."  PAR. 12. 

"A RETAIL ESTABLISHMENT SELLS GOODS TO PRIVATE INDIVIDUALS FOR
PERSONAL OR FAMILY CONSUMPTION."  PAR. 14. 

"THE TERM 'SERVICE ESTABLISHMENT' AS USED IN SECTION 13(A)(2) MAY BE
CONSIDERED TO INCLUDE GENERALLY THAT LARGE MISCELLANEOUS ASSORTMENT OF
BUSINESS ENTERPRISES WHICH ARE SIMILAR IN CHARACTER TO RETAIL
ESTABLISHMENTS, BUT WHICH MAY NOT BE ACCURATELY CLASSIFIED AS SUCH. 
SUCH AN INTERPRETATION IS SUGGESTED BY THE MANNER IN WHICH SECTION
13(A)(2) IS DRAFTED.  SERVICE AND RETAIL ESTABLISHMENTS ARE CONSIDERED
IN THE SAME SENTENCE AND THE SAME CRITERION OF INTRASTATE COMMERCE IS
MADE APPLICABLE TO BOTH."  PAR. 22.  SEE ALSO, PARS. 23-29. 

"AS ALREADY INDICATED, ESTABLISHMENTS WHICH PERFORM A SUBSTANTIAL
AMOUNT OF WORK FOR INDUSTRIAL OR BUSINESS USERS, GOVERNMENT AGENCIES,
INSTITUTIONS, AND SIMILAR CUSTOMERS MAY NOT BE CONSIDERED SERVICE
ESTABLISHMENTS.  A SERVICE ESTABLISHMENT IS ONE WHICH PERFORMS SERVICE
FOR PRIVATE INDIVIDUALS FOR PERSONAL OR FAMILY USE."  PAR. 27. 

IN PARAGRAPH 29, THE ADMINISTRATOR LISTS MANY EXAMPLES OF
"ESTABLISHMENTS NOT CONSIDERED SERVICE ESTABLISHMENTS UNDER EXEMPTION"
AND SAYS OF THEM - 

"ALTHOUGH WE RECOGNIZE THAT THE FOREGOING COMPANIES PERFORM SERVICE,
IT IS NEVERTHELESS OUR OPINION THAT ESTABLISHMENTS ENGAGED IN SUCH
BUSINESSES ARE NOT IN THE ORDINARY CASE SUFFICIENTLY SIMILAR IN
CHARACTER TO RETAIL ESTABLISHMENTS TO BE CONSIDERED SERVICE
ESTABLISHMENTS WITHIN THE MEANING OF SECTION 13(A)(2)." 

AMONG THE COMPANIES SO LISTED IN PARAGRAPH 29, AND TO WHICH THE ABOVE
QUOTATION REFERS, ARE THE FOLLOWING WHICH HAVE SPECIAL SIGNIFICANCE IN
CONNECTION WITH THIS CASE:  ENGINEERING FIRMS, MACHINE SHOPS AND
FOUNDRIES, ESTABLISHMENTS ENGAGED IN SHARPENING AND RECONDITIONING
INDUSTRIAL TOOLS, IN RESISTANCE WELDING, IN ARMATURE REWINDING, OR IN
MAKING ELECTRIC SIGNS, COMPANIES ENGAGED IN THE REPAIR OF BUSINESS
MACHINES OR IN REPAIRING ELEVATORS. 

FN11  "THUS, MANY ESTABLISHMENTS ARE ENGAGED IN SELLING GOODS WHICH
HAVE ONLY AN INDUSTRIAL OR BUSINESS MARKET, E.G., ESTABLISHMENTS
ENGAGED IN SELLING PRODUCTION MACHINERY, FREIGHT TRAILERS, OIL-WELL
DRILLING MACHINERY AND EQUIPMENT, ETC.  THESE ESTABLISHMENTS ARE NOT
RETAIL ESTABLISHMENTS WITHIN THE MEANING OF SECTION 13(A)(2) SINCE THEY
DO NOT SELL REGULARLY TO THE GENERAL CONSUMING PUBLIC."  INTERPRETATIVE
BULLETIN NO. 6, PAR. 11, 2 C.C.H. LABOR LAW SERVICE, P32,106.  A
FOOTNOTE TO PARAGRAPH 11 IN THE SAME BULLETIN CONTAINS THE FOLLOWING
STATEMENT: "ORDINARILY THE FOLLOWING TYPES OF GOODS HAVE ONLY AN
INDUSTRIAL OR BUSINESS MARKET AND ARE NOT SOLD TO THE GENERAL CONSUMING
PUBLIC.  ACCORDINGLY, SALES OF SUCH GOODS, IN THE ORDINARY CASE, ARE
NOT RETAIL.  IT SHOULD BE NOTED THAT THE TYPES OF GOODS LISTED BELOW
ARE MERELY EXAMPLES AND DO NOT COMPRISE AN EXHAUSTIVE ENUMERATION." 
THE NOTE THEN LISTS MANY ILLUSTRATIONS SOME OF WHICH ARE CLOSELY
COMPARABLE TO THE TYPES OF GOODS SOLD AND SERVICED IN THIS CASE.  AMONG
THE ILLUSTRATIONS ARE BUTCHERS' EQUIPMENT, FILLING STATION EQUIPMENT,
CONSTRUCTION EQUIPMENT, MACHINE TOOLS, MECHANICAL RUBBER GOODS (SUCH AS
BELTING, PACKING, GASKETS, AND RECOIL PADS), POWER ENGINES, POWERHOUSE
EQUIPMENT, WELDING EQUIPMENT, HOSPITAL EQUIPMENT (SUCH AS X-RAY
MACHINES), PLUMBERS' EQUIPMENT, SHOE REPAIRERS' EQUIPMENT, COMMERCIAL
AIRCRAFT EQUIPMENT, RAILROAD EQUIPMENT AND COMMERCIAL SHIP EQUIPMENT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











ORDER OF CONDUCTORS V. PITNEY, 326 U.S. 561 


NO. 37.  ARGUED NOVEMBER 9, 1945.  - DECIDED JANUARY 14, 1946.  - 145
F.2D 351, MODIFIED. 


WHILE A PROCEEDING FOR REORGANIZATION OF A RAILROAD UNDER SEC. 77 OF
THE BANKRUPTCY ACT WAS PENDING IN THE DISTRICT COURT, THE TRUSTEES
AGREED WITH THE BARGAINING REPRESENTATIVE OF "YARD CONDUCTORS" THAT
CERTAIN TRAINS WHICH HAD BEEN MANNED BY "ROAD CONDUCTORS" SHOULD BE
MANNED BY "YARD CONDUCTORS."  RELYING ON EARLIER AGREEMENTS, THE
BARGAINING REPRESENTATIVE OF THE ROAD CONDUCTORS PETITIONED THE COURT
TO INSTRUCT THE TRUSTEES NOT TO DISPLACE THE ROAD CONDUCTORS AND TO
ENJOIN SUCH ACTION AS LONG AS THE EARLIER AGREEMENTS WERE NOT ALTERED
IN ACCORDANCE WITH THE RAILWAY LABOR ACT.  THE COURT DETERMINED THAT
THE YARD CONDUCTORS WERE ENTITLED TO MAN THE TRAINS IN QUESTION, AND
DISMISSED THE PETITION.  HELD: 

1.  SO FAR AS THE ORDER CONSTITUTED INSTRUCTIONS TO THE TRUSTEES, IT
WAS WITHIN THE SUPERVISORY POWER OF THE DISTRICT COURT AS A BANKRUPTCY
COURT AND IS AFFIRMED.  PP. 562, 567. 

2.  THE DISTRICT COURT SHOULD NOT HAVE INTERPRETED THE AGREEMENTS FOR
PURPOSES OF FINALLY ADJUDICATING THE DISPUTE BETWEEN THE UNIONS AND THE
RAILROAD, BUT SHOULD STAY DISMISSAL OF THE CAUSE SO AS TO AFFORD
OPPORTUNITY FOR APPLICATION TO THE ADJUSTMENT BOARD FOR AN
INTERPRETATION OF THE AGREEMENTS PURSUANT TO THE RAILWAY LABOR ACT.  P.
567. 

3.  CONGRESS HAVING CREATED BY THE RAILWAY LABOR ACT AN AGENCY
ESPECIALLY COMPETENT AND SPECIFICALLY DESIGNATED TO SETTLE SUCH A LABOR
DISPUTE AS IS HERE INVOLVED, THE COURT SHOULD EXERCISE EQUITABLE
DISCRETION TO GIVE THAT AGENCY THE FIRST OPPORTUNITY TO PASS ON THE
ISSUE.  THE EXTRAORDINARY RELIEF OF AN INJUNCTION SHOULD BE WITHHELD AT
LEAST UNTIL THEN.  P. 567. 

4.  ANY RIGHTS CLEARLY REVEALED BY AN INTERPRETATION OF THE
AGREEMENTS BY THE ADJUSTMENT BOARD MIGHT THEN, IF THE SITUATION
WARRANTS, BE PROTECTED IN THIS PROCEEDING.  P. 568. 

ORDER OF RAILWAY CONDUCTORS OF AMERICA ET AL. V. PITNEY ET AL.,
TRUSTEES OF CENTRAL RAILROAD CO. OF NEW JERSEY, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 325 U.S. 849, TO REVIEW A JUDGMENT WHICH, UPON APPEAL
FROM AN ORDER OF THE BANKRUPTCY COURT, REMANDED THE CAUSE FOR DISMISSAL
WITHOUT PREJUDICE TO ANY ACTION OR PROCEEDING NOT IN CONFLICT WITH THE
RAILWAY LABOR ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US TO CONSIDER TO WHAT EXTENT A FEDERAL DISTRICT
COURT HAVING CHARGE OF A RAILROAD REORGANIZATION HAS POWER TO
ADJUDICATE A JURISDICTIONAL DISPUTE INVOLVING THE RAILROAD AND TWO
EMPLOYEE ACCREDITED BARGAINING AGENTS IN VIEW OF THE PROVISIONS IN THE
RAILWAY LABOR ACT, 45 U.S.C. SEC. 151 ET SEQ., GIVING SUCH POWER TO THE
ADMINISTRATIVE AGENCIES ESTABLISHED THEREUNDER.  EACH UNION CLAIMS THAT
ITS RESPECTIVE COLLECTIVE BARGAINING AGREEMENT ENTITLES IT TO SUPPLY
CONDUCTORS FOR FIVE DAILY FREIGHT TRAINS OPERATED WITHIN THE
ELIZABETHPORT, NEW JERSEY, YARDS OF THE RAILROAD AND BOTH PRESSED THEIR
CONTENTIONS ON THE REORGANIZATION TRUSTEES APPOINTED UNDER THE
PROVISIONS OF SEC. 77 OF THE BANKRUPTCY ACT.  11 U.S.C. SEC. 205.  THE
TWO UNIONS ARE THE ORDER OF RAILWAY CONDUCTORS (O.R.C.), WHICH
REPRESENTS ROAD CONDUCTORS WHO ORDINARILY OPERATE TRAINS OUTSIDE THE
YARDS, AND THE BROTHERHOOD OF RAILROAD TRAINMEN (B.R.T.), WHICH
REPRESENTS YARD CONDUCTORS WHO ORDINARILY OPERATE TRAINS INSIDE THE
YARDS.  BUT HERE, THE PRACTICE OVER A PERIOD OF YEARS HAD BEEN THAT AT
TIMES YARD CONDUCTORS MANNED SOME TRAINS OUTSIDE THE YARD AND ROAD
CONDUCTORS MANNED SOME TRAINS WITHIN THE YARD, INCLUDING THE FIVE
FREIGHT TRAINS HERE INVOLVED.  IN 1940 THE RAILROAD IN RESPONSE TO
PRESSURE BY THE O.R.C. AGREED THAT THEREAFTER ONLY ROAD CONDUCTORS
WOULD MAN THE OUTSIDE TRAINS.  HOWEVER, O.R.C. CONDUCTORS CONTINUED TO
OPERATE THE FIVE DAILY FREIGHT TRAINS WITHIN THE YARD.  IN 1943 THE
RAILROAD WAS PREVAILED UPON BY THE B.R.T. TO AGREE TO SUBSTITUTE B.R.T.
YARD CONDUCTORS FOR THE O.R.C. CONDUCTORS OPERATING THESE FIVE TRAINS. 

THEREUPON O.R.C. BROUGHT THIS SUIT IN THE REORGANIZATION COURT.  IT
ALLEGED THAT ITS MEMBERS HAD FOR THE PAST 35 YEARS OPERATED THE TRAINS
IN ISSUE AS A RESULT OF NEGOTIATIONS AS TO RULES, RATES OF PAY AND
WORKING CONDITIONS BETWEEN IT AND THE RAILROAD AND THAT THE 1940
CONTRACT SPECIFICALLY PROVIDED THAT THIS SITUATION WOULD NOT BE CHANGED
WITHOUT FURTHER AGREEMENT.  THUS, THE PROPOSED DISPLACEMENT OF O.R.C.
CONDUCTORS WOULD VIOLATE SEC. 6 OF THE RAILWAY LABOR ACT WHICH MAKES IT
UNLAWFUL FOR A CARRIER OR EMPLOYEE REPRESENTATIVES TO CHANGE "PAY,
RULES, OR WORKING CONDITIONS," UNLESS 30 DAYS WRITTEN NOTICE OF THE
INTENDED CHANGE SHALL HAVE BEEN GIVEN AND THE CONTROVERSY HAS BEEN
FINALLY ACTED UPON BY THE MEDIATION BOARD.  FN1  THE O.R.C. ASKED THE
COURT TO INSTRUCT ITS TRUSTEES NOT TO DISPLACE ROAD CONDUCTORS AND TO
ENJOIN THEM PERMANENTLY FROM TAKING SUCH ACTION SO LONG AS O.R.C.'S
CONTRACTS WITH THE ROAD WERE NOT ALTERED IN ACCORDANCE WITH THE
PROVISIONS OF THE RAILWAY LABOR ACT. 

ANSWERS WERE FILED BY THE TRUSTEES AND THE B.R.T. AS INTERVENOR.  THE
CASE WAS REFERRED TO A MASTER WHO, AFTER A HEARING, FOUND THAT O.R.C.'S
COLLECTIVE BARGAINING CONTRACTS DID NOT PROVIDE THAT ITS CONDUCTORS
WERE TO OPERATE THE FIVE FREIGHT TRAINS AND THAT THE B.R.T. CONTRACT
ALLOTTED THESE LINES TO ITS MEMBERS.  THE DISTRICT COURT SUSTAINED
THESE FINDINGS AND ACCORDINGLY DISMISSED THE PETITION ON THE MERITS. 
THE CIRCUIT COURT OF APPEALS HELD THAT THE PETITION SHOULD BE DISMISSED
ON JURISDICTIONAL GROUNDS BECAUSE IT THOUGHT THAT THE REMEDIES OF THE
RAILWAY LABOR ACT FOR THE SETTLEMENT OF DISPUTES SUCH AS HERE INVOLVED
ARE EXCLUSIVE.  145 F.2D 351.  IT FURTHER STATED THAT IF IT SHOULD BE
MISTAKEN ON THE JURISDICTIONAL QUESTION, THEN IT AGREED WITH THE
DISTRICT COURT THAT THE ROAD CONDUCTORS MUST LOSE ON THE MERITS. 

TRUSTEE ACTING UNDER THIS ACT SHALL CHANGE THE WAGES OR WORKING
CONDITIONS OF RAILROAD EMPLOYEES, EXCEPT IN THE MANNER PRESCRIBED IN
THE RAILWAY LABOR ACT  ..."  49 STAT. 923.  SECTION 1 OF THE RAILWAY
LABOR ACT DEFINES A CARRIER, SUBJECT TO IT, AS INCLUDING "ANY RECEIVER,
TRUSTEE, OR OTHER INDIVIDUAL OR BODY, JUDICIAL OR OTHERWISE, WHEN IN
THE POSSESSION OF THE BUSINESS OF ANY SUCH 'CARRIER'..."  AND SEC. 2,
SEVENTH, OF THE ACT PROVIDES THAT "NO CARRIER, ITS OFFICERS OR AGENTS
SHALL CHANGE THE RATES OF PAY, RULES, OR WORKING CONDITIONS OF ITS
EMPLOYEES, AS A CLASS AS EMBODIED IN AGREEMENTS EXCEPT IN THE MANNER
PRESCRIBED IN SUCH AGREEMENTS OR IN SECTION 6 OF THIS ACT."  SECTION 6,
AS WE HAVE SEEN, PROHIBITS SUCH CHANGES UNLESS NOTICE IS FIRST GIVEN
AND ITS REQUIREMENTS ARE OTHERWISE COMPLIED WITH.  SECTION 2, TENTH, OF
THE ACT MAKES IT A MISDEMEANOR, PUNISHABLE BY BOTH FINE AND
IMPRISONMENT, FOR A CARRIER WILFULLY TO VIOLATE SEC. 6. 

THESE SECTIONS MAKE IT CLEAR THAT THE ONLY CONDUCT WHICH WOULD
VIOLATE SEC. 6 IS A CHANGE OF THOSE WORKING CONDITIONS WHICH ARE
"EMBODIED" IN AGREEMENTS.  BUT THE ANSWERS HERE SPECIFICALLY DENIED
THAT THE O.R.C. AGREEMENTS PROVIDED THAT ROAD CONDUCTORS OPERATE THE
FIVE TRAINS IN QUESTION.  THIS PUT IN ISSUE THE MEANING OF THE
CONTRACTS THAT ALLEGEDLY EMBODIED THE WORKING CONDITIONS WHICH THE
TRUSTEES WERE ABOUT TO CHANGE.  THE COURT, THEREFORE, HAD TO INTERPRET
THESE CONTRACTS BEFORE IT COULD FIND THAT SEC. 6 HAD BEEN VIOLATED. 

IN INTERPRETING THE CONTRACTS THE COURT MIGHT ACT IN TWO DISTINCT
CAPACITIES.  FIRST, IT MIGHT DO SO IN THE CAPACITY OF A "JUDICIAL"
"BODY" IN THE "POSSESSION OF THE BUSINESS," OR A "CARRIER" WITHIN THE
MEANING OF SEC. 1 OF THE RAILWAY LABOR ACT.  AS SUCH IT WOULD HAVE TO
INTERPRET THE CONTRACTS IN ORDER TO EXERCISE THE JURISDICTION CONFERRED
BY THE BANKRUPTCY ACT  FN2  TO CONTROL ITS TRUSTEES SO AS TO INSURE THE
PRESERVATION AND PROPER ADMINISTRATION OF THE DEBTOR'S ESTATE.  BUT
SUCH INSTRUCTIONS, WHILE BINDING ON THE TRUSTEES AND, JUST AS ANY OTHER
ORDER, SUBJECT TO APPELLATE REVIEW, AMOUNT TO NO MORE THAN THE DECISION
ANY OTHER CARRIER WOULD SOONER OR LATER MAKE ABOUT THE COURSE IT MUST
FOLLOW AND, THEREFORE, CAN NOT FINALLY SETTLE THE DISPUTE BETWEEN UNION
AND EMPLOYER. 

FINALLY, TO SETTLE THAT DISPUTE THE REORGANIZATION COURT WOULD HAVE
TO ACT IN THE FURTHER CAPACITY OF A TRIBUNAL EMPOWERED TO GRANT THE
EQUITABLE RELIEF SOUGHT, EVEN THOUGH GRANTING THAT RELIEF REQUIRES
INTERPRETATION OF THESE CONTRACTS.  BUT CONGRESS HAS SPECIFICALLY
PROVIDED FOR A TRIBUNAL TO INTERPRET CONTRACTS SUCH AS THESE IN ORDER
FINALLY TO SETTLE A LABOR DISPUTE.  SECTION 3 FIRST (I) OF THE RAILWAY
LABOR ACT PROVIDES THAT DISPUTES BETWEEN A CARRIER AND ITS EMPLOYEES
"GROWING OUT OF  ...  THE INTERPRETATION OR APPLICATION OF AGREEMENTS
CONCERNING RATES OF PAY, RULES, OR WORKING CONDITIONS  ...  MAY BE
REFERRED  ...  BY EITHER PARTY TO THE  ...  ADJUSTMENT BOARD."  THE
BOARD CAN NOT ONLY ORDER REINSTATEMENT OF THE EMPLOYEES, SHOULD THEY
ACTUALLY BE DISCHARGED, BUT IT CAN ALSO UNDER SEC. 3, FIRST (O) AND (P)
GRANT A MONEY AWARD SUBJECT TO JUDICIAL REVIEW WITH AN ALLOWANCE FOR
ATTORNEY'S FEES SHOULD THE AWARD BE SUSTAINED.  NOT ONLY HAS CONGRESS
THUS DESIGNATED AN AGENCY PECULIARLY COMPETENT TO HANDLE THE BASIC
QUESTION HERE INVOLVED, BUT AS WE HAVE INDICATED IN SEVERAL RECENT
CASES IN WHICH WE HAD OCCASION TO DISCUSS THE HISTORY AND PURPOSE OF
THE RAILWAY LABOR ACT, IT ALSO INTENDED TO LEAVE A MINIMUM
RESPONSIBILITY TO THE COURTS.  FN3 

OF COURSE, WHERE THE STATUTE IS SO OBVIOUSLY VIOLATED THAT "A
SACRIFICE OR OBLITERATION OF A RIGHT WHICH CONGRESS  ...  CREATED"  FN4
TO PROTECT THE INTEREST OF INDIVIDUALS OR THE PUBLIC IS CLEARLY SHOWN,
A COURT OF EQUITY COULD, IN A PROPER CASE, INTERVENE.  TEXAS & N.O.R.
CO. V. BROTHERHOOD OF CLERKS, 281 U.S. 548; VIRGINIAN R. CO. V. SYSTEM
FEDERATION, 300 U.S. 515.  BUT HERE IT DOES NOT CLEARLY APPEAR WHETHER
THE STATUTE HAS BEEN VIOLATED OR COMPLIED WITH OR THAT THE THREATENED
ACTION "WOULD BE PREJUDICIAL TO THE PUBLIC INTEREST."  PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176, 185.  WE HAVE SEEN THAT IN ORDER TO REACH A
FINAL DECISION ON THAT QUESTION THE COURT FIRST HAD TO INTERPRET THE
TERMS OF O.R.C.'S COLLECTIVE BARGAINING AGREEMENTS.  THE RECORD SHOWS,
HOWEVER, THAT INTERPRETATION OF THESE CONTRACTS INVOLVES MORE THAN THE
MERE CONSTRUCTION OF A "DOCUMENT" IN TERMS OF THE ORDINARY MEANING OF
WORDS AND THEIR POSITION.  SEE BROWN LUMBER CO. V. L. & N.R. CO., 299
U.S. 393, 396.  GREAT NORTHERN R. CO. V. MERCHANTS ELEVATOR CO., 259
U.S. 285, 291.  FOR O.R.C.'S AGREEMENTS WITH THE RAILROAD MUST BE READ
IN THE LIGHT OF OTHERS BETWEEN THE RAILROAD AND B.R.T.  AND SINCE ALL
PARTIES SEEK TO SUPPORT THEIR PARTICULAR INTERPRETATION OF THESE
AGREEMENTS BY EVIDENCE AS TO USAGE, PRACTICE AND CUSTOM, THAT TOO MUST
BE TAKEN INTO ACCOUNT AND PROPERLY UNDERSTOOD.  THE FACTUAL QUESTION IS
INTRICATE AND TECHNICAL.  AN AGENCY ESPECIALLY COMPETENT AND
SPECIFICALLY DESIGNATED TO DEAL WITH IT HAS BEEN CREATED BY CONGRESS. 
UNDER THESE CIRCUMSTANCES THE COURT SHOULD EXERCISE EQUITABLE
DISCRETION TO GIVE THAT AGENCY THE FIRST OPPORTUNITY TO PASS ON THE
ISSUE.  CERTAINLY THE EXTRAORDINARY RELIEF OF AN INJUNCTION SHOULD BE
WITHHELD, AT LEAST, UNTIL THEN.  SEE THOMPSON V. MAGNOLIA PETROLEUM
CO., 309 U.S. 478, 483-484; BURFORD V. SUN OIL CO., 319 U.S. 315.  ONLY
AFTER THE ADJUSTMENT BOARD ACTS, BUT NOT UNTIL THEN, CAN IT PLAINLY
APPEAR THAT SUCH RELIEF IS NECESSARY TO INSURE COMPLIANCE WITH THE
STATUTE.  UNTIL SUCH TIME, O.R.C. CAN NOT SHOW IRREPARABLE LOSS AND
INADEQUACY OF THE LEGAL REMEDY.  THE COURT OF EQUITY SHOULD, THEREFORE,
IN THE EXERCISE OF ITS DISCRETION STAY ITS HAND.  LAWRENCE V. ST. LOUIS
SAN FRANCISCO R. CO., 274 U.S. 588, 592-3 AND OTHER CASES CITED IN
MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, 51, N. 9; NATURAL
GAS CO. V. SLATTERY, 302 U.S. 300. 

WE HOLD THAT THE DISTRICT COURT HAD SUPERVISORY POWER TO INSTRUCT ITS
TRUSTEES AS IT DID.  AND A REVIEW OF THE EVIDENCE PERSUADES US THAT THE
COURT'S FINDINGS ON WHICH SUCH INSTRUCTIONS WERE BASED ARE NOT CLEARLY
ERRONEOUS.  TO THE EXTENT THAT ITS ORDER CONSTITUTES INSTRUCTIONS TO
ITS TRUSTEES, IT IS AFFIRMED.  OF COURSE, IN THIS RESPECT IT IS NO MORE
BINDING ON THE ADJUSTMENT BOARD THAN THE ACTION OF ANY OTHER CARRIER. 
BUT THE COURT SHOULD NOT HAVE INTERPRETED THE CONTRACTS FOR PURPOSES OF
FINALLY ADJUDICATING THE DISPUTE BETWEEN THE UNIONS AND THE RAILROAD. 
THE DISMISSAL OF THE CAUSE SHOULD THEREFORE BE STAYED BY THE DISTRICT
COURT, SO AS TO GIVE AN OPPORTUNITY FOR APPLICATION TO THE ADJUSTMENT
BOARD FOR AN INTERPRETATION OF THE AGREEMENTS.  ANY RIGHTS CLEARLY
REVEALED BY SUCH AN INTERPRETATION MIGHT THEN, IF THE SITUATION
WARRANTS, BE PROTECTED IN THIS PROCEEDING.  FN5  IT IS SO ORDERED. 

FN1  "SEC.  6.  CARRIERS AND REPRESENTATIVES OF THE EMPLOYEES SHALL
GIVE AT LEAST THIRTY DAYS' WRITTEN NOTICE OF AN INTENDED CHANGE IN
AGREEMENTS AFFECTING RATES OF PAY, RULES, OR WORKING CONDITIONS, AND
THE TIME AND PLACE FOR THE BEGINNING OF CONFERENCE BETWEEN THE
REPRESENTATIVES OF THE PARTIES INTERESTED IN SUCH INTENDED CHANGES
SHALL BE AGREED UPON WITHIN TEN DAYS AFTER THE RECEIPT OF SAID NOTICE,
AND SAID TIME SHALL BE WITHIN THE THIRTY DAYS PROVIDED IN THE NOTICE. 
IN EVERY CASE WHERE SUCH NOTICE OF INTENDED CHANGE HAS BEEN GIVEN, OR
CONFERENCES ARE BEING HELD WITH REFERENCE THERETO, OR THE SERVICES OF
THE MEDIATION BOARD HAVE BEEN REQUESTED BY EITHER PARTY, OR SAID BOARD
HAS PROFFERED ITS SERVICES, RATES OF PAY, RULES, OR WORKING CONDITIONS
SHALL NOT BE ALTERED BY THE CARRIER UNTIL THE CONTROVERSY HAS BEEN
FINALLY ACTED UPON AS REQUIRED BY SECTION 5 OF THIS ACT, BY THE
MEDIATION BOARD, UNLESS A PERIOD OF TEN DAYS HAS ELAPSED AFTER
TERMINATION OF CONFERENCES WITHOUT REQUEST FOR OR PROFFER OF THE
SERVICES OF THE MEDIATION BOARD." 

FN2  SEE ESPECIALLY SUBDIVISION (C) OF SEC. 77 OF THE ACT, WHICH
PROVIDES THAT ACTION OF TRUSTEES IN ADMINISTERING AN ESTATE SHALL BE
"SUBJECT TO THE CONTROL OF THE JUDGE." 

FN3  GENERAL COMMITTEE V. M.-K.-T. R. CO., 320 U.S. 323; SWITCHMEN'S
UNION V. BOARD, 320 U.S. 297; TRAINMEN V. TOLEDO, P. & W.R. CO., 321
U.S. 50; TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, 321 U.S. 342. 

FN4  SWITCHMEN'S UNION V. BOARD, SUPRA, 300. 

FN5  MITCHELL COAL CO. V. PENNSYLVANIA R. CO., 230 U.S. 247, 267. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, DISSENTING IN PART. 

I AGREE THAT THE DISTRICT COURT SHOULD RETAIN JURISDICTION OF THE
CAUSE PENDING INTERPRETATION OF THE AGREEMENTS IN THE PROCEDURE
PROVIDED BY THE RAILWAY LABOR ACT FOR SUBMITTING SUCH QUESTIONS TO THE
ADJUSTMENT BOARD.  SECTION 77(N) OF THE BANKRUPTCY ACT WAS NOT
INTENDED, I THINK, TO GIVE THE DISTRICT COURT JURISDICTION TO DETERMINE
WHETHER A "CHANGE IN AGREEMENTS AFFECTING RATES OF PAY, RULES, OR
WORKING CONDITIONS" WITHIN THE MEANING OF SEC. 6 HAS, IN FACT, TAKEN
PLACE.  ITS SOLE EFFECT IS TO REQUIRE A BANKRUPTCY COURT TO FOLLOW THE
PROCEDURE SET UP BY THE RAILWAY LABOR ACT.    IN MY OPINION, HOWEVER,
PETITIONERS ARE ENTITLED TO IMMEDIATE TEMPORARY RELIEF, PENDING THE
DETERMINATION OF THE ADJUSTMENT BOARD, IN ORDER TO ASSURE COMPLIANCE
WITH SEC. 6, IF THE BOARD SHOULD DECIDE IN THEIR FAVOR. 

AND EMPLOYEES, A DUTY WHICH IS JUDICIALLY ENFORCEABLE, SINCE NO OTHER
REMEDY IS PROVIDED.  FN1  THE OPINION OF THE COURT SO RULES, AS I
UNDERSTAND IT, FOR OTHERWISE THERE WOULD BE NO REASON FOR HOLDING THE
CAUSE.  BUT IF, PENDING THE BOARD'S DETERMINATION,  FN2  THE CHANGE
FORBIDDEN BY SEC. 6 TAKES PLACE AND THE BOARD'S DECISION TURNS OUT TO
BE IN FAVOR OF THE PETITIONERS, THE VERY PURPOSE OF SEC. 6 WILL HAVE
BEEN DEFEATED.  ITS OBJECT IS TO MAINTAIN THE STATUS QUO, PENDING THE
EXPIRATION OF THE PERIOD PROVIDED BY THE SECTION FOR ALLOWING THE
PROCESSES OF NEGOTIATION, MEDIATION AND CONCILIATION TO HAVE PLAY.  IT
IS TO PREVENT CHANGES BEING MADE UNTIL THESE PROCESSES HAVE BEEN
EXHAUSTED OR THE PRESCRIBED WAITING PERIOD HAS EXPIRED WITHOUT BRINGING
THEM INTO EFFECT.  SEE TRAINMEN V. TOLEDO, P. & W.R. CO., 321 U.S. 50;
CF. ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711. 

THE DECISION OF THE BOARD WILL NOT RESTORE THIS RIGHTFUL STATUS QUO
FOR THE PERIOD REQUIRED FOR MAKING ITS DETERMINATION, INCLUDING THE
TIME NOW GONE BY, OR IN FACT FOR ANY LATER PERIOD.  THE ONLY RELIEF THE
BOARD CAN GIVE IS EITHER "AN ADMINISTRATIVE DECLARATORY DETERMINATION"
OR AN AWARD OF MONEY DAMAGES, SUBJECT TO THE SPECIAL PROVISION FOR
JUDICIAL REVIEW.  ALTHOUGH THE LATTER REMEDY WOULD AFFORD PARTIAL
VINDICATION OF PRIVATE RIGHTS, IT DOES NOT SAFEGUARD THE PUBLIC
INTEREST, IN ACCORDANCE WITH THE PRIMARY DESIGN OF SEC. 6.  FN3  AND IN
MANY CASES IT MAY BE IMPOSSIBLE FOR A COURT TO EFFECTUATE THE BOARD'S
DECISION FOR THE FUTURE WITH ADEQUATE RESTORATIVE MEASURES.  FN4 

ACCORDINGLY I THINK THE DISTRICT COURT SHOULD GRANT TEMPORARY RELIEF
TO O.R.C., AS WAS DONE AT THE BEGINNING OF THIS CAUSE,  FN5  UNTIL THE
RIGHTS OF THE PARTIES HAVE BEEN ASCERTAINED AND PERMANENT RELIEF IS
GIVEN OR DENIED.  PETITIONERS HAVE MADE A PRIMA FACIE CASE,  FN6  NOT
ONLY FOR HOLDING THE CAUSE PENDING THE OUTCOME OF THE PROCEEDINGS
BEFORE THE ADJUSTMENT BOARD BUT ALSO FOR TEMPORARY INJUNCTIVE RELIEF
PENDING THAT DECISION.  WITHOUT SUCH RELIEF THE PUBLIC INTEREST WILL
NOT BE ADEQUATELY PROTECTED NOR WILL THE COURT'S JURISDICTION BE
PRESERVED, IN THE SENSE OF POWER TO AFFORD THE FULL RELIEF REQUIRED BY
THE POLICY OF THE ACT. 

FN1  TEXAS & N.O.R. CO. V. BROTHERHOOD OF CLERKS, 281 U.S. 548;
VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515; SWITCHMEN'S UNION
V. NATIONAL MEDITATION BOARD, 320 U.S. 297; GENERAL COMMITTEE V.
MISSOURI-KANSAS-TEXAS R. CO., 320 U.S. 323, 331. 

SEE TEXT INFRA AS TO ADEQUACY OF THE REMEDY BEFORE THE ADJUSTMENT
BOARD. 

FN2  THE SITUATION IN THIS CASE IS UNUSUAL BECAUSE RESORT MUST BE HAD
TO THE ADJUSTMENT BOARD BEFORE IT CAN BE DETERMINED WHETHER THE
FORBIDDEN CHANGE HAS BEEN PROPOSED OR HAS TAKEN PLACE IN FACT. 

WHETHER THE RELIEF SOUGHT SHOULD BE GRANTED DEPENDS ON WHETHER THE
ADJUSTMENT BOARD FINDS THAT THE 1943 CONTRACT WITH B.R.T., OR ACTION
TAKEN THEREUNDER, CONSTITUTES A "CHANGE IN AGREEMENTS AFFECTING RATES
OF PAY, RULES, OR WORKING CONDITIONS" WITHIN THE MEANING OF SEC. 6 OR
ONE IN "THE RATES OF PAY, RULES, OR WORKING CONDITIONS OF ITS
EMPLOYEES, AS A CLASS AS EMBODIED IN AGREEMENTS," EXCEPT AS PROVIDED IN
SEC. 6, WITHIN THE MEANING OF SEC. 2, SEVENTH.  CF. ALSO SEC. 77(N) OF
THE BANKRUPTCY ACT.  THIS IN TURN WILL DEPEND UPON THE EFFECT WHICH THE
BOARD FINDS SHOULD BE GIVEN TO THE PRIOR AGREEMENTS, INCLUDING NOT ONLY
THE 1940 CONTRACT WITH O.R.C., BUT THE BASIC AGREEMENTS OF 1927 AND
1928 WITH O.R.C. AND B.R.T., RESPECTIVELY, AS AFFECTED BY THE
ESTABLISHMENT OF SWITCHING LIMITS IN 1929 AND OTHER MATTERS BEARING
UPON THE INTERPRETATION OF THE WRITTEN CONTRACTS AND THE RIGHTS OF THE
PARTIES. 

ONLY AFTER THE ADJUSTMENT BOARD HAS ACTED CAN IT BE KNOWN WHETHER A
CHANGE IN VIOLATION OF SEC. 6 WAS PROPOSED OR BROUGHT ABOUT THROUGH THE
1943 AGREEMENT.  IF PETITIONERS ARE CORRECT IN THEIR VIEW OF THEIR
RIGHTS ON THE MERITS, AND THE ADJUSTMENT BOARD SO FINDS, THE 1943
CONTRACT AND THE ACTION TAKEN UNDER IT WERE IN VIOLATION OF SEC. 6.  IF
RESPONDENTS ARE RIGHT AS TO THE EFFECT OF THE AGREEMENTS MADE PRIOR TO
1943, AND THE BOARD SO FINDS, NO "CHANGE" IN VIOLATION OF SEC. 6 WAS
BROUGHT ABOUT BY THE 1943 CONTRACT, WHICH IN THAT EVENT BECOMES MERELY
DECLARATORY OF PREEXISTING RIGHTS.  THE CRUCIAL ISSUE IS WHETHER THE
1943 AGREEMENT "CHANGED," THAT IS, ALTERED THE TERMS OF PREEXISTING
CONTRACTUAL RIGHTS OR MERELY DECLARED THEM, A QUESTION WHICH ONLY THE
ADJUSTMENT BOARD CAN DECIDE, INITIALLY AT ANY RATE, SINCE IT REQUIRES
INTERPRETATION OF EXISTING COLLECTIVE AGREEMENTS, NOT THE MAKING OF NEW
OR DIFFERENT ONES.  CF. ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711. 

FN3  IN PROVIDING A WAITING PERIOD BEFORE FINAL RUPTURE, WITH LEEWAY
FOR MEDIATION AND CONCILIATION TO WORK, SEC. 6 HAS THE OBVIOUS PURPOSE
NOT ONLY TO PREVENT INFRINGEMENT OF PRIVATE RIGHTS BUT MORE ESPECIALLY
TO SAVE THE PUBLIC FROM POSSIBLE DISRUPTION OF SERVICE.  SEE NOTE 4. 

FN4  ALTHOUGH ONLY FIVE JOBS ARE INVOLVED IN THIS JURISDICTIONAL
DISPUTE, ANOTHER MAY INVOLVE 500 OR 5000.  ORDERING THE REINSTATEMENT
OF ANY CONSIDERABLE NUMBER OF MEN, ONCE THEY HAVE BEEN WRONGFULLY
THROWN OUT, TO DISPLACE OTHERS WHO HAVE TAKEN THEIR PLACES ITSELF
INVOLVES THE VERY KIND OF DISRUPTION, OR POSSIBILITY FOR IT, WHICH
CONGRESS SOUGHT TO WARD OFF BY THE PROVISIONS OF SEC. 6.  AND IT IS
COMMON KNOWLEDGE THAT STRIKES INVOLVING LARGE NUMBERS MAY ARISE FROM AN
EMPLOYER'S ADVERSE ACTION AFFECTING DIRECTLY ONLY A FEW EMPLOYEES OR
EVEN ONE. 

FN5  THE COURT GRANTED A STAY ORDER UPON FILING OF THE PETITION WHICH
REMAINED IN EFFECT UNTIL APRIL 5, 1943, WHEN THE ORDER OF REFERENCE TO
THE MASTER WAS MADE.  THEREAFTER THE TRUSTEES MADE EFFECTIVE THE 1943
CONTRACT WITH B.R.T. AND, IN MY OPINION, BY THIS ACTION VIOLATED SEC.
6. 

FN6  THE DECISION OF THE COURT IMPLIES THAT THE PETITIONERS' CASE IS
NOT FRIVOLOUS.  THAT IT IS NOT IS BORNE OUT BY THE FOLLOWING FACTS,
AMONG OTHERS: 

THE TRUSTEES AND B.R.T. DO NOT DENY THAT O.R.C. MEMBERS HAD PERFORMED
THE WORK IN QUESTION CONTINUOUSLY FOR MORE THAN THIRTY-FIVE YEARS OR
EXCLUSIVELY UNTIL THE CONTRACT OF 1943 WITH B.R.T. WAS MADE AND PUT
INTO EFFECT.  THEY ALLEGE NO PROTEST AGAINST THIS ARRANGEMENT UNTIL
SHORTLY AFTER THE 1940 AGREEMENT WITH O.R.C. 

IN 1929 THE CARRIER ESTABLISHED SWITCHING LIMIT BOUNDARIES. 
RESPONDENTS SAY THE EFFECT OF ESTABLISHING THESE LIMITS WAS GENERALLY
THAT YARDMEN, REPRESENTED BY B.R.T., SHOULD NOT PERFORM WORK OUTSIDE OF
THEM AND THAT ROADMEN, REPRESENTED BY O.R.C., SHOULD NOT PERFORM WORK
WITHIN THEM.  THE FIVE DRILLS IN QUESTION LIE WITHIN THE SWITCHING
LIMITS.  O.R.C. CONTENDS THAT THE FIXING OF SWITCHING LIMITS WAS NOT
INTENDED TO CHANGE THE PREVIOUS PRACTICE UNDER WHICH ROAD CONDUCTORS
HAD CUSTOMARILY MANNED THE FIVE DRILLS.  IT POINTS TO THE FACT THAT
ROAD CONDUCTORS CONTINUED TO WORK ON THE FIVE DRILLS AFTER THE
ESTABLISHMENT OF SWITCHING LIMITS AND TO THE FURTHER FACT THAT, BY THE
AGREEMENT MADE IN 1940 BETWEEN O.R.C. AND THE CARRIER, THE LATTER
AGREED NOT TO CHANGE THE THEN PRESENT METHOD OF ASSIGNING CONDUCTORS. 
O.R.C. ALSO MAINTAINS THAT THE BASIC AGREEMENTS, TAKEN IN CONJUNCTION
WITH THE 1929 ESTABLISHMENT OF SWITCHING LIMITS, DID NOT PRESCRIBE
TERRITORIAL PRIORITIES, BUT MERELY PROVIDED FOR RATES OF PAY TO BE
APPLICABLE WITHIN AND WITHOUT THE LIMITS ESTABLISHED. 
..END :

















NEW YORK V. UNITED STATES, 326 U.S. 572 


NO. 5.  ARGUED DECEMBER 7, 8, 1944.  REARGUED DECEMBER 4, 1945.  -
DECIDED JANUARY 14, 1946.  - 140 F.2D 608, AFFIRMED. 


THE STATE OF NEW YORK, IN THE SALE OF MINERAL WATERS TAKEN FROM
SARATOGA SPRINGS, OWNED AND OPERATED BY THE STATE, IS NOT IMMUNE UNDER
THE FEDERAL CONSTITUTION FROM THE TAX IMPOSED ON MINERAL WATERS BY SEC.
615 OF THE REVENUE ACT OF 1932.  PP. 573-574, 584. 

NEW YORK ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 322 U.S. 724, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE UNITED STATES, 48 F.SUPP.  15, IN A SUIT TO RECOVER TAXES ASSESSED
AGAINST THE STATE ON THE SALE OF MINERAL WATER. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE JUDGMENT OF THE COURT AND
DELIVERED AN OPINION IN WHICH MR. JUSTICE RUTLEDGE JOINED. 

A TAX ON MINERAL WATERS.  FN1  THE UNITED STATES BROUGHT THIS SUIT TO
RECOVER TAXES ASSESSED AGAINST THE STATE OF NEW YORK ON THE SALE OF
MINERAL WATERS TAKEN FROM SARATOGA SPRINGS, NEW YORK.  FN2  THE STATE
CLAIMS IMMUNITY FROM THIS TAX ON THE GROUND THAT "IN THE BOTTLING AND
SALE OF THE SAID WATERS THE DEFENDANT STATE OF NEW YORK WAS ENGAGED IN
THE EXERCISE OF A USUAL, TRADITIONAL AND ESSENTIAL GOVERNMENTAL
FUNCTION."  THE CLAIM WAS REJECTED BY THE DISTRICT COURT AND JUDGMENT
WENT FOR THE UNITED STATES.  48 F.SUPP.  15.  THE JUDGMENT WAS AFFIRMED
BY THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.  140 F.2D 608. 
THE STRONG URGING OF NEW YORK FOR FURTHER CLARIFICATION OF THE
AMENABILITY OF STATES TO THE TAXING POWER OF THE UNITED STATES LED US
TO GRANT CERTIORARI.  322 U.S. 724.  AFTER THE CASE WAS ARGUED AT THE
1944 TERM, REARGUMENT WAS ORDERED. 

ON THE BASIS OF AUTHORITY THE CASE IS QUICKLY DISPOSED OF.  WHEN
STATES SOUGHT TO CONTROL THE LIQUOR TRAFFIC BY GOING INTO THE LIQUOR
BUSINESS, THEY WERE DENIED IMMUNITY FROM FEDERAL TAXES UPON THE LIQUOR
BUSINESS.  SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437; OHIO V.
HELVERING, 292 U.S. 360.  AND IN REJECTING A CLAIM OF IMMUNITY FROM
FEDERAL TAXATION WHEN MASSACHUSETTS TOOK OVER THE STREET RAILWAYS OF
BOSTON, THIS COURT A DECADE AGO SAID:  "WE SEE NO REASON FOR PUTTING
THE OPERATION OF A STREET RAILWAY (BY A STATE) IN A DIFFERENT CATEGORY
FROM THE SALE OF LIQUORS."  HELVERING V. POWERS, 293 U.S. 214, 227.  WE
CERTAINLY SEE NO REASON FOR PUTTING SOFT DRINKS IN A DIFFERENT
CONSTITUTIONAL CATEGORY FROM HARD DRINKS.  SEE ALSO ALLEN V. REGENTS,
304 U.S. 439. 

ONE OF THE GREATEST SOURCES OF STRENGTH OF OUR LAW IS THAT IT
ADJUDICATES CONCRETE CASES AND DOES NOT PRONOUNCE PRINCIPLES IN THE
ABSTRACT.  BUT THERE COMES A TIME WHEN EVEN THE PROCESS OF EMPIRIC
ADJUDICATION CALLS FOR A MORE RATIONAL DISPOSITION THAN THAT THE
IMMEDIATE CASE IS NOT DIFFERENT FROM PRECEDING CASES.  THE ARGUMENT
PRESSED BY NEW YORK AND THE FORTY-FIVE OTHER STATES WHO, AS AMICI
CURIAE, HAVE JOINED HER DESERVES AN ANSWER. 

ENACTMENTS LEVYING TAXES MADE IN PURSUANCE OF THE CONSTITUTION ARE,
AS OTHER LAWS ARE, "THE SUPREME LAW OF THE LAND."  ART. VI,
CONSTITUTION OF THE UNITED STATES; FLINT V. STONE TRACY CO., 220 U.S.
107, 153.  THE FIRST OF THE POWERS CONFERRED UPON CONGRESS IS THE POWER
"TO LAY AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES  ..."  ART. I,
SEC. 8.  BY ITS TERMS THE CONSTITUTION HAS PLACED ONLY ONE LIMITATION
UPON THIS POWER, OTHER THAN LIMITATIONS UPON METHODS OF LAYING TAXES
NOT HERE RELEVANT:  CONGRESS CAN LAY NO TAX "ON ARTICLES EXPORTED FROM
ANY STATE."  ART. I, SEC. 9.  BARRING ONLY EXPORTS, THE POWER OF
CONGRESS TO TAX "REACHES EVERY SUBJECT."  LICENSE TAX CASES, 5 WALL. 
462, 471.  BUT THE FACT THAT OURS IS A FEDERAL CONSTITUTIONAL SYSTEM,
AS EXPRESSLY RECOGNIZED IN THE TENTH AMENDMENT, CARRIES WITH IT
IMPLICATIONS REGARDING THE TAXING POWER AS IN OTHER ASPECTS OF
GOVERNMENT.  SEE, E.G., HOPKINS SAVINGS ASSN. V. CLEARY, 296 U.S. 315. 
THUS, FOR CONGRESS TO TAX STATE ACTIVITIES WHILE LEAVING UNTAXED THE
SAME ACTIVITIES PURSUED BY PRIVATE PERSONS WOULD DO VIOLENCE TO THE
PRESUPPOSITIONS DERIVED FROM THE FACT THAT WE ARE A NATION COMPOSED OF
STATES. 

BUT THE FEAR THAT ONE GOVERNMENT MAY CRIPPLE OR OBSTRUCT THE
OPERATIONS OF THE OTHER EARLY LED TO THE ASSUMPTION THAT THERE WAS A
RECIPROCAL IMMUNITY OF THE INSTRUMENTALITIES OF EACH FROM TAXATION BY
THE OTHER.  IT WAS ASSUMED THAT THERE WAS AN EQUIVALENCE IN THE
IMPLICATIONS OF TAXATION BY A STATE OF THE GOVERNMENTAL ACTIVITIES OF
THE NATIONAL GOVERNMENT AND THE TAXATION BY THE NATIONAL GOVERNMENT OF
STATE INSTRUMENTALITIES.  THIS ASSUMED EQUIVALENCE WAS NOURISHED BY THE
PHRASE OF CHIEF JUSTICE MARSHALL THAT "THE POWER TO TAX INVOLVES THE
POWER TO DESTROY."  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 431.  TO BE
SURE, IT WAS UTTERED IN CONNECTION WITH A TAX OF MARYLAND WHICH PLAINLY
DISCRIMINATED AGAINST THE USE BY THE UNITED STATES OF THE BANK OF THE
UNITED STATES AS ONE OF ITS INSTRUMENTS.  WHAT HE SAID MAY NOT HAVE
BEEN IRRELEVANT IN ITS SETTING.  BUT CHIEF JUSTICE MARSHALL SPOKE AT A
TIME WHEN SOCIAL COMPLEXITIES DID NOT SO CLEARLY REVEAL AS NOW THE
PRACTICAL LIMITATIONS OF A RHETORICAL ABSOLUTE.  SEE HOLMES, J., IN
LONG V. ROCKWOOD, 277 U.S. 142, 148, AND IN PANHANDLE OIL CO. V.
MISSISSIPPI, 277 U.S. 218, 223.  THE PHRASE WAS SEIZED UPON AS THE
BASIS OF A BROAD DOCTRINE OF INTERGOVERNMENTAL IMMUNITY, WHILE AT THE
SAME TIME AN EXPANSIVE SCOPE WAS GIVEN TO WHAT WERE DEEMED TO BE
"INSTRUMENTALITIES OF GOVERNMENT" FOR PURPOSES OF TAX IMMUNITY.  AS A
RESULT, IMMUNITY WAS UNTIL RECENTLY ACCORDED TO ALL OFFICERS OF ONE
GOVERNMENT FROM TAXATION BY THE OTHER, AND IT WAS FURTHER ASSUMED THAT
THE ECONOMIC BURDEN OF A TAX ON ANY INTEREST DERIVED FROM A GOVERNMENT
IMPOSES A BURDEN ON THAT GOVERNMENT SO AS TO INVOLVE AN INTERFERENCE BY
THE TAXING GOVERNMENT WITH THE FUNCTIONING OF THE OTHER GOVERNMENT. 
SEE METCALF & EDDY V. MITCHELL, 269 U.S. 514; HELVERING V. PRODUCERS
CORP., 303 U.S. 376; GRAVES V. N.Y. EX REL. O'KEEFE, 306 U.S. 466, 480
81. 

TO PRESS A JURISTIC PRINCIPLE DESIGNED FOR THE PRACTICAL AFFAIRS OF
GOVERNMENT TO ABSTRACT EXTREMES IS NEITHER SOUND LOGIC NOR GOOD SENSE. 
AND THIS COURT IS UNDER NO DUTY TO MAKE LAW LESS THAN SOUND LOGIC AND
GOOD SENSE.  WHEN THIS COURT FOR THE FIRST TIME RELIEVED STATE OFFICERS
FROM A NON-DISCRIMINATORY CONGRESSIONAL TAX, NOT BECAUSE OF ANYTHING
SAID IN THE CONSTITUTION BUT BECAUSE OF THE SUPPOSED IMPLICATIONS OF
OUR FEDERAL SYSTEM, MR. JUSTICE BRADLEY POINTED OUT THE INVALIDITY OF
THE NOTION OF RECIPROCAL INTERGOVERNMENTAL IMMUNITY.  THE
CONSIDERATIONS BEARING UPON TAXATION BY THE STATES OF ACTIVITIES OR
AGENCIES OF THE FEDERAL GOVERNMENT ARE NOT CORRELATIVE WITH THE
CONSIDERATIONS BEARING UPON FEDERAL TAXATION OF STATE AGENCIES OR
ACTIVITIES.  THE FEDERAL GOVERNMENT IS THE GOVERNMENT OF ALL THE
STATES, AND ALL THE STATES SHARE IN THE LEGISLATIVE PROCESS BY WHICH A
TAX OF GENERAL APPLICABILITY IS LAID.  "THE TAXATION BY THE STATE
GOVERNMENTS OF THE INSTRUMENTS EMPLOYED BY THE GENERAL GOVERNMENT IN
THE EXERCISE OF ITS POWERS," SAID MR. JUSTICE BRADLEY, "IS A VERY
DIFFERENT THING.  SUCH TAXATION INVOLVES AN INTERFERENCE WITH THE
POWERS OF A GOVERNMENT IN WHICH OTHER STATES AND THEIR CITIZENS ARE
EQUALLY INTERESTED WITH THE STATE WHICH IMPOSES THE TAXATION."  FN3
SINCE THEN WE HAVE MOVED AWAY FROM THE THEORETICAL ASSUMPTION THAT THE
NATIONAL GOVERNMENT IS BURDENED IF ITS FUNCTIONARIES, LIKE OTHER
CITIZENS, PAY FOR THE UPKEEP OF THEIR STATE GOVERNMENTS, AND WE HAVE
DENIED THE IMPLIED CONSTITUTIONAL IMMUNITY OF FEDERAL OFFICIALS FROM
STATE TAXES.  GRAVES V. N.Y. EX REL. O'KEEFE, SUPRA.  SEE GILLESPIE V.
OKLAHOMA, 257 U.S. 501, CRITICIZED IN BURNET V. CORONADO OIL & GAS CO.,
285 U.S. 393, 401, AND EXPLICITLY OVERRULED IN HELVERING V. PRODUCERS
CORP., 303 U.S. 376; LONG V. ROCKWOOD, 277 U.S. 142, OVERRULED IN FOX
FILM CORP. V. DOYAL, 286 U.S. 123; COLLECTOR V. DAY, 11 WALL.  113, AND
NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S. 401, OVERRULED IN GRAVES V.
N.Y. EX REL. O'KEEFE, SUPRA. 

IN THE MEANTIME, CASES CAME HERE, AS WE HAVE ALREADY NOTED, IN WHICH
STATES CLAIMED IMMUNITY FROM A FEDERAL TAX IMPOSED GENERALLY ON
ENTERPRISES IN WHICH THE STATE ITSELF WAS ALSO ENGAGED.  THIS PROBLEM
DID NOT ARISE BEFORE THE PRESENT CENTURY, PARTLY BECAUSE STATE TRADING
DID NOT ACTIVELY EMERGE UNTIL RELATIVELY RECENTLY, AND PARTLY BECAUSE
OF THE NARROW SCOPE OF FEDERAL TAXATION.  IN SOUTH CAROLINA V. UNITED
STATES, 199 U.S. 437, IMMUNITY FROM A FEDERAL TAX ON A DISPENSARY
SYSTEM, WHEREBY SOUTH CAROLINA MONOPOLIZED THE SALE OF INTOXICATING
LIQUORS, WAS DENIED BY DRAWING A LINE BETWEEN TAXATION OF THE
HISTORICALLY RECOGNIZED GOVERNMENTAL FUNCTIONS OF A STATE, AND BUSINESS
ENGAGED IN BY A STATE OF A KIND WHICH THERETOFORE HAD BEEN PURSUED BY
PRIVATE ENTERPRISE.  THE POWER OF THE FEDERAL GOVERNMENT THUS TO TAX A
LIQUOR BUSINESS CONDUCTED BY THE STATE WAS DERIVED FROM AN APPEAL TO
THE CONSTITUTION "IN THE LIGHT OF CONDITIONS SURROUNDING AT THE TIME OF
ITS ADOPTION."  SOUTH CAROLINA V. UNITED STATES, SUPRA, AT 457.  THAT
THERE IS A CONSTITUTIONAL LINE BETWEEN THE STATE AS GOVERNMENT AND THE
STATE AS TRADER, WAS STILL MORE RECENTLY MADE THE BASIS OF A DECISION
SUSTAINING A LIQUOR TAX AGAINST OHIO.  "IF A STATE CHOOSES TO GO INTO
THE BUSINESS OF BUYING AND SELLING COMMODITIES, ITS RIGHT TO DO SO MAY
BE CONCEDED SO FAR AS THE FEDERAL CONSTITUTION IS CONCERNED; BUT THE
EXERCISE OF THE RIGHT IS NOT THE PERFORMANCE OF A GOVERNMENTAL FUNCTION
...  WHEN A STATE ENTERS THE MARKET PLACE SEEKING CUSTOMERS IT DIVESTS
ITSELF OF ITS QUASI SOVEREIGNTY PRO TANTO, AND TAKES ON THE CHARACTER
OF A TRADER, SO FAR, AT LEAST, AS THE TAXING POWER OF THE FEDERAL
GOVERNMENT IS CONCERNED."  OHIO V. HELVERING, SUPRA, AT 369.  WHEN THE
OHIO CASE WAS DECIDED IT WAS TOO LATE IN THE DAY NOT TO RECOGNIZE THE
VAST EXTENSION OF THE SPHERE OF GOVERNMENT, BOTH STATE AND NATIONAL,
COMPARED WITH THAT WITH WHICH THE FATHERS WERE FAMILIAR.  IT COULD
HARDLY REMAIN A SATISFACTORY CONSTITUTIONAL DOCTRINE THAT ONLY SUCH
STATE ACTIVITIES ARE IMMUNE FROM FEDERAL TAXATION AS WERE ENGAGED IN BY
THE STATES IN 1787.  SUCH A STATIC CONCEPT OF GOVERNMENT DENIES ITS
ESSENTIAL NATURE.  "THE SCIENCE OF GOVERNMENT IS THE MOST ABSTRUSE OF
ALL SCIENCES; IF, INDEED, THAT CAN BE CALLED A SCIENCE WHICH HAS BUT
FEW FIXED PRINCIPLES, AND PRACTICALLY CONSISTS IN LITTLE MORE THAN THE
EXERCISE OF A SOUND DISCRETION, APPLIED TO THE EXIGENCIES OF THE STATE
AS THEY ARISE.  IT IS THE SCIENCE OF EXPERIMENT."  ANDERSON V. DUNN, 6
WHEAT.  204, 226. 

WHEN THIS COURT CAME TO SUSTAIN THE FEDERAL TAXING POWER UPON A
TRANSPORTATION SYSTEM OPERATED BY A STATE, IT DID SO IN WAYS FAMILIAR
IN DEVELOPING THE LAW FROM PRECEDENT TO PRECEDENT.  IT EDGED AWAY FROM
RELIANCE ON A SHARP DISTINCTION BETWEEN THE "GOVERNMENTAL" AND THE
"TRADING" ACTIVITIES OF A STATE, BY DENYING IMMUNITY FROM FEDERAL
TAXATION TO A STATE WHEN IT "IS UNDERTAKING A BUSINESS ENTERPRISE OF A
SORT THAT IS NORMALLY WITHIN THE REACH OF THE FEDERAL TAXING POWER AND
IS DISTINCT FROM THE USUAL GOVERNMENTAL FUNCTIONS THAT ARE IMMUNE FROM
FEDERAL TAXATION IN ORDER TO SAFEGUARD THE NECESSARY INDEPENDENCE OF
THE STATE."  HELVERING V. POWERS, SUPRA, AT 227.  BUT THIS LIKEWISE
DOES NOT FURNISH A SATISFACTORY GUIDE FOR DEALING WITH SUCH A PRACTICAL
PROBLEM AS THE CONSTITUTIONAL POWER OF THE UNITED STATES OVER STATE
ACTIVITIES.  TO REST THE FEDERAL TAXING POWER ON WHAT IS "NORMALLY"
CONDUCTED BY PRIVATE ENTERPRISE IN CONTRADICTION TO THE "USUAL"
GOVERNMENTAL FUNCTIONS IS TOO SHIFTING A BASIS FOR DETERMINING
CONSTITUTIONAL POWER AND TOO ENTANGLED IN EXPEDIENCY TO SERVE AS A
DEPENDABLE LEGAL CRITERION.  THE ESSENTIAL NATURE OF THE PROBLEM CANNOT
BE HIDDEN BY AN ATTEMPT TO SEPARATE MANIFESTATIONS OF INDIVISIBLE
GOVERNMENTAL POWERS.  SEE WAMBAUGH, PRESENT SCOPE OF GOVERNMENT (1897)
20 A.B.A. REP. 307; FRANKFURTER, THE PUBLIC AND ITS GOVERNMENT (1930). 

THE PRESENT CASE ILLUSTRATES THE STERILITY OF SUCH AN ATTEMPT.  FN4
NEW YORK URGES THAT IN THE USE IT IS MAKING OF SARATOGA SPRINGS IT IS
ENGAGED IN THE DISPOSITION OF ITS NATURAL RESOURCES.  AND SO IT IS.
BUT IN DOING SO IT IS ENGAGED IN AN ENTERPRISE IN WHICH THE STATE SELLS
MINERAL WATERS IN COMPETITION WITH PRIVATE WATERS, THE SALE OF WHICH
CONGRESS HAS FOUND NECESSARY TO TAP AS A SOURCE OF REVENUE FOR CARRYING
ON THE NATIONAL GOVERNMENT.  TO SAY THAT THE STATES CANNOT BE TAXED FOR
ENTERPRISES GENERALLY PURSUED, LIKE THE SALE OF MINERAL WATER, BECAUSE
IT IS SOMEWHAT CONNECTED WITH A STATE'S CONSERVATION POLICY, IS TO
INVOKE AN IRRELEVANCE TO THE FEDERAL TAXING POWER.  LIQUOR CONTROL BY A
STATE CERTAINLY CONCERNS THE MOST IMPORTANT OF A STATE'S NATURAL
RESOURCES - THE HEALTH AND WELL-BEING OF ITS PEOPLE.  SEE MUGLER V.
KANSAS, 123 U.S. 623, 662; CRANE V. CAMPBELL, 245 U.S. 304, 307.  IF IN
ITS WISDOM A STATE ENGAGES IN THE LIQUOR BUSINESS AND MAY BE TAXED BY
CONGRESS AS OTHERS ENGAGED IN THE LIQUOR BUSINESS ARE TAXED, SO ALSO
CONGRESS MAY TAX THE STATES WHEN THEY GO INTO THE BUSINESS OF BOTTLING
WATER AS OTHERS IN THE MINERAL WATER BUSINESS ARE TAXED EVEN THOUGH A
STATE'S SALE OF ITS MINERAL WATERS HAS RELATION TO ITS CONSERVATION
POLICY. 

IN THE OLDER CASES, THE EMPHASIS WAS ON IMMUNITY FROM TAXATION.  THE
WHOLE TENDENCY OF RECENT CASES REVEALS A SHIFT IN EMPHASIS TO THAT OF
LIMITATION UPON IMMUNITY.  THEY ALSO INDICATE AN AWARENESS OF THE
LIMITED ROLE OF COURTS IN ASSESSING THE RELATIVE WEIGHT OF THE FACTORS
UPON WHICH IMMUNITY IS BASED.  ANY IMPLIED LIMITATION UPON THE
SUPREMACY OF THE FEDERAL POWER TO LEVY A TAX LIKE THAT NOW BEFORE US,
IN THE ABSENCE OF DISCRIMINATION AGAINST STATE ACTIVITIES, BRINGS
FISCAL AND POLITICAL FACTORS INTO PLAY.  THE PROBLEM CANNOT ESCAPE
ISSUES THAT DO NOT LEND THEMSELVES TO JUDGMENT BY CRITERIA AND METHODS
OF REASONING THAT ARE WITHIN THE PROFESSIONAL TRAINING AND SPECIAL
COMPETENCE OF JUDGES.  INDEED THE CLAIM OF IMPLIED IMMUNITY BY STATES
FROM FEDERAL TAXATION RAISES QUESTIONS NOT WHOLLY UNLIKE PROVISIONS OF
THE CONSTITUTION, SUCH AS THAT OF ART. IV, SEC. 4, GUARANTEEING STATES
A REPUBLICAN FORM OF GOVERNMENT, SEE PACIFIC STATES TEL. & TEL. CO. V.
OREGON, 223 U.S. 118, WHICH THIS COURT HAS DEEMED NOT WITHIN ITS DUTY
TO ADJUDICATE.    WE HAVE ALREADY HELD THAT BY ENGAGING IN THE RAILROAD
BUSINESS A STATE CANNOT WITHDRAW THE RAILROAD FROM THE POWER OF THE
FEDERAL GOVERNMENT TO REGULATE COMMERCE.  UNITED STATES V. CALIFORNIA,
297 U.S. 175.  SEE ALSO UNIVERSITY OF ILLINOIS V. UNITED STATES, 289
U.S. 48.  SURELY THE POWER OF CONGRESS TO LAY TAXES HAS IMPLIEDLY NO
LESS A REACH THAN THE POWER OF CONGRESS TO REGULATE COMMERCE.  THERE
ARE, OF COURSE, STATE ACTIVITIES AND STATE-OWNED PROPERTY THAT PARTAKE
OF UNIQUENESS FROM THE POINT OF VIEW OF INTERGOVERNMENTAL RELATIONS. 
THESE INHERENTLY CONSTITUTE A CLASS BY THEMSELVES.  ONLY A STATE CAN
OWN A STATEHOUSE; ONLY A STATE CAN GET INCOME BY TAXING.  THESE COULD
NOT BE INCLUDED FOR PURPOSES OF FEDERAL TAXATION IN ANY ABSTRACT
CATEGORY OF TAXPAYERS WITHOUT TAXING THE STATE AS A STATE.  BUT SO LONG
AS CONGRESS GENERALLY TAPS A SOURCE OF REVENUE BY WHOMSOEVER EARNED AND
NOT UNIQUELY CAPABLE OF BEING EARNED ONLY BY A STATE, THE CONSTITUTION
OF THE UNITED STATES DOES NOT FORBID IT MERELY BECAUSE ITS INCIDENCE
FALLS ALSO ON A STATE.  IF CONGRESS DESIRES, IT MAY OF COURSE LEAVE
UNTAXED ENTERPRISES PURSUED BY STATES FOR THE PUBLIC GOOD WHILE IT
TAXES LIKE ENTERPRISES ORGANIZED FOR PRIVATE ENDS.  CF. SPRINGFIELD GAS
CO. V. SPRINGFIELD, 257 U.S. 66; UNIVERSITY OF ILLINOIS V. UNITED
STATES, SUPRA, AT 57; PUGET SOUND CO. V. SEATTLE, 291 U.S. 619.  IF
CONGRESS MAKES NO SUCH DIFFERENTIATION AND, AS IN THIS CASE, TAXES ALL
VENDORS OF MINERAL WATER ALIKE, WHETHER STATE VENDORS OR PRIVATE
VENDORS, IT SIMPLY SAYS, IN EFFECT, TO A STATE:  "YOU MAY CARRY OUT
YOUR OWN NOTIONS OF SOCIAL POLICY IN ENGAGING IN WHAT IS CALLED
BUSINESS, BUT YOU MUST PAY YOUR SHARE IN HAVING A NATION WHICH ENABLES
YOU TO PURSUE YOUR POLICY."  AFTER ALL, THE REPRESENTATIVES OF ALL THE
STATES, HAVING, AS THE APPEARANCE OF THE ATTORNEYS GENERAL OF FORTY-SIX
STATES AT THE BAR OF THIS COURT SHOWS, COMMON INTERESTS, ALONE CAN PASS
SUCH A TAXING MEASURE AND THEY ALONE IN THEIR WISDOM CAN GRANT OR
WITHHOLD IMMUNITY FROM FEDERAL TAXATION OF SUCH STATE ACTIVITIES. 

THE PROCESS OF CONSTITUTIONAL ADJUDICATION DOES NOT THRIVE ON
CONJURING UP HORRIBLE POSSIBILITIES THAT NEVER HAPPEN IN THE REAL WORLD
AND DEVISING DOCTRINES SUFFICIENTLY COMPREHENSIVE IN DETAIL TO COVER
THE REMOTEST CONTINGENCY.  NOR NEED WE GO BEYOND WHAT IS REQUIRED FOR A
REASONED DISPOSITION OF THE KIND OF CONTROVERSY NOW BEFORE THE COURT. 
THE RESTRICTION UPON STATES NOT TO MAKE LAWS THAT DISCRIMINATE AGAINST
INTERSTATE COMMERCE IS A VITAL CONSTITUTIONAL PRINCIPLE, EVEN THOUGH
"DISCRIMINATION" IS NOT A CODE OF SPECIFICS BUT A CONTINUOUS PROCESS OF
APPLICATION.  SO WE DECIDE ENOUGH WHEN WE REJECT LIMITATIONS UPON THE
TAXING POWER OF CONGRESS DERIVED FROM SUCH UNTENABLE CRITERIA AS
"PROPRIETARY" AGAINST "GOVERNMENTAL" ACTIVITIES OF THE STATES, OR
HISTORICALLY SANCTIONED ACTIVITIES OF GOVERNMENT, OR ACTIVITIES
CONDUCTED MERELY FOR PROFIT,  FN5  AND FIND NO RESTRICTION UPON
CONGRESS TO INCLUDE THE STATES IN LEVYING A TAX EXACTED EQUALLY FROM
PRIVATE PERSONS UPON THE SAME SUBJECT MATTER.  JUDGMENT AFFIRMED. 

FN1  "SEC.  615.  TAX ON SOFT DRINKS. 

"(A)  THERE IS HEREBY IMPOSED -  ... 

"(5)  UPON ALL NATURAL OR ARTIFICIAL MINERAL WATERS OR TABLE WATERS,
WHETHER CARBONATED OR NOT, AND ALL IMITATIONS THEREOF, SOLD BY THE
PRODUCER, BOTTLER, OR IMPORTER THEREOF, IN BOTTLES OR OTHER CLOSED
CONTAINERS, AT OVER 12 1/2 CENTS PER GALLON, A TAX OF 2 CENTS PER
GALLON." 

FN2  THE HISTORY OF NEW YORK'S RELATIONS TO THE SPRINGS AT SARATOGA
MAY BE BRIEFLY SUMMARIZED.  UNDER PREVIOUS PRIVATE OPERATION THE FLOW
OF THE SPRINGS HAD BEEN SUBSTANTIALLY DIMINISHED BY EXCESSIVE PUMPING. 
IN 1911 THE STATE OF NEW YORK BEGAN TO ACQUIRE TITLE TO ALL THE LANDS
ON WHICH THE MINERAL SPRINGS WERE LOCATED AT SARATOGA SPRINGS.  IN
ORDER TO CONSERVE THE SPRINGS FOR BENEFICIAL OPERATION, THE STATE TOOK
VARIOUS MEASURES UNTIL, IN 1930, CONTROL OVER THE SPRINGS IN THE STATE
RESERVATION WAS GIVEN TO THE NEWLY CREATED SARATOGA SPRINGS
COMMISSION.  IN 1933, THE COMMISSION LEASED THE SPRINGS' FACILITIES AND
DELEGATED THEIR MANAGEMENT TO THE SARATOGA SPRINGS AUTHORITY, A PUBLIC
BENEFIT CORPORATION OF NEW YORK. 

DURING THE YEARS 1932 TO 1934, FOR WHICH THE TAX IS ASSERTED, THE
COMMISSION AND THE AUTHORITY OPERATED THE RESERVATION AS A HEALTH
RESORT AND SPA.  THERE ARE RECREATION FACILITIES, BATH HOUSES, DRINK
HALLS, A RESEARCH LABORATORY, AND OTHER BUILDINGS ON THE GROUNDS.  SOME
OF THE MINERAL WATERS OF THE SPRINGS THAT HAVE A MEDICINAL VALUE ARE
BOTTLED AND SOLD TO DISTRIBUTORS, RETAILERS, AND DIRECTLY TO
CONSUMERS.  THE SALES ARE PROMOTED BY ADVERTISING AND CUSTOMARILY YIELD
A PROFIT WHICH IS APPLIED TO MEETING IN PART THE EXPENSES OF OPERATING
THE OTHER FACILITIES.  THE REMAINDER OF THOSE EXPENSES IS MET BY ANNUAL
LEGISLATIVE APPROPRIATIONS. 

FN3  THE VIEWS OF MR. JUSTICE BRADLEY HAVE BEEN SO VINDICATED BY TIME
AND EXPERIENCE THAT HIS WHOLE COMPACT OPINION DESERVES TO BE RECALLED: 

"I DISSENT FROM THE OPINION OF THE COURT IN THIS CASE, BECAUSE, IT
SEEMS TO ME THAT THE GENERAL GOVERNMENT HAS THE SAME POWER OF TAXING
THE INCOME OF OFFICERS OF THE STATE GOVERNMENTS AS IT HAS OF TAXING
THAT OF ITS OWN OFFICERS.  IT IS THE COMMON GOVERNMENT OF ALL ALIKE;
AND EVERY CITIZEN IS PRESUMED TO TRUST HIS OWN GOVERNMENT IN THE MATTER
OF TAXATION.  NO MAN CEASES TO BE A CITIZEN OF THE UNITED STATES BY
BEING AN OFFICER UNDER THE STATE GOVERNMENT.  I CANNOT ACCEDE TO THE
DOCTRINE THAT THE GENERAL GOVERNMENT IS TO BE REGARDED AS IN ANY SENSE
FOREIGN OR ANTAGONISTIC TO THE STATE GOVERNMENTS, THEIR OFFICERS, OR
PEOPLE; NOR CAN I AGREE THAT A PRESUMPTION CAN BE ADMITTED THAT THE
GENERAL GOVERNMENT WILL ACT IN A MANNER HOSTILE TO THE EXISTENCE OR
FUNCTIONS OF THE STATE GOVERNMENTS, WHICH ARE CONSTITUENT PARTS OF THE
SYSTEM OR BODY POLITIC FORMING THE BASIS ON WHICH THE GENERAL
GOVERNMENT IS FOUNDED.  THE TAXATION BY THE STATE GOVERNMENTS OF THE
INSTRUMENTS EMPLOYED BY THE GENERAL GOVERNMENT IN THE EXERCISE OF ITS
POWERS, IS A VERY DIFFERENT THING.  SUCH TAXATION INVOLVES AN
INTERFERENCE WITH THE POWERS OF A GOVERNMENT IN WHICH OTHER STATES AND
THEIR CITIZENS ARE EQUALLY INTERESTED WITH THE STATE WHICH IMPOSES THE
TAXATION.  IN MY JUDGMENT, THE LIMITATION OF THE POWER OF TAXATION IN
THE GENERAL GOVERNMENT, WHICH THE PRESENT DECISION ESTABLISHES, WILL BE
FOUND VERY DIFFICULT OF CONTROL.  WHERE ARE WE TO STOP IN ENUMERATING
THE FUNCTIONS OF THE STATE GOVERNMENTS WHICH WILL BE INTERFERED WITH BY
FEDERAL TAXATION?  IF A STATE INCORPORATES A RAILROAD TO CARRY OUT ITS
PURPOSES OF INTERNAL IMPROVEMENT, OR A BANK TO AID ITS FINANCIAL
ARRANGEMENTS, RESERVING, PERHAPS, A PERCENTAGE ON THE STOCK OR PROFITS,
FOR THE SUPPLY OF ITS OWN TREASURY, WILL THE BONDS OR STOCK OF SUCH AN
INSTITUTION BE FREE FROM FEDERAL TAXATION?  HOW CAN WE NOW TELL WHAT
THE EFFECT OF THIS DECISION WILL BE? I CANNOT BUT REGARD IT AS FOUNDED
ON A FALLACY, AND THAT IT WILL LEAD TO MISCHIEVOUS CONSEQUENCES.  I AM
AS MUCH OPPOSED AS ANY ONE CAN BE TO ANY INTERFERENCE BY THE GENERAL
GOVERNMENT WITH THE JUST POWERS OF THE STATE GOVERNMENTS.  BUT NO
CONCESSION OF ANY OF THE JUST POWERS OF THE GENERAL GOVERNMENT CAN
EASILY BE RECALLED.  I, THEREFORE, CONSIDER IT MY DUTY TO AT LEAST
RECORD MY DISSENT WHEN SUCH CONCESSION APPEARS TO BE MADE.  AN EXTENDED
DISCUSSION OF THE SUBJECT WOULD ANSWER NO USEFUL PURPOSE."  COLLECTOR
V. DAY, 11 WALL.  113, 128-29. 

FN4  THIS METHOD OF SOLVING A PROBLEM INHERENT IN A FEDERAL
CONSTITUTIONAL SYSTEM HAS BEEN FOUND EQUALLY INCONCLUSIVE IN LATIN
AMERICA.  SEE AMADEO, ARGENTINE CONSTITUTIONAL LAW (1943) 97-103. 

FN5  ATTEMPTS ALONG SIMILAR LINES TO SOLVE KINDRED PROBLEMS ARISING
UNDER THE CANADIAN AND AUSTRALIAN CONSTITUTIONS HAVE ALSO PROVED A
BARREN PROCESS.  SEE AUSTRALIA CONSTITUTION ACT, 1900, SEC. 114, IN
EGERTON, FEDERATIONS AND UNIONS IN THE BRITISH EMPIRE (2D ED., 1924)
225; POND, INTERGOVERNMENTAL IMMUNITY:  A COMPARATIVE STUDY OF THE
FEDERAL SYSTEM (1941) 26 IOWA L. REV. 272; KENNEDY & WELLS, THE LAW OF
THE TAXING POWER IN CANADA (1931) 35-37. 

EVEN WHERE THE CONSTITUTION OF A FEDERAL SYSTEM EXPLICITLY DEALS WITH
THE PROBLEM OF INTERGOVERNMENTAL TAXATION, AS IN BRAZIL, LITIGATION IS
NOT ESCAPED AND NICE DISTINCTIONS HAVE TO BE MADE.  SEE CASES ARISING
UNDER ARTICLE 10 OF THE CONSTITUTION OF 1891 AND UNDER ARTICLE 32 OF
THE CONSTITUTION OF 1937:  APPELLACAO CIVEL, NO. 2.884, 13 REVISTA DO
SUPREMO TRIBUNAL 203(1917); APPELLACAO CIVEL, NO. 2.900, 14 REVISTA DO
SUPREMO TRIBUNAL 44(1918); APPELLACAO CIVEL, NO. 2.536, 19 REVISTA DO
SUPREMO TRIBUNAL 76(1919); RECURSO DE MANDADO DE SEGURANCA NO. 617, 56
ARCHIVO JUDICIARIO 1(1940); AGRAVO DE PETICAO, NO. 8.024, 59 ARCHIVO
JUDICIARIO 85(1941).  ARTICLE 32 OF THE CONSTITUTION OF 1937, THE
PRESENT BRAZILIAN CONSTITUTION, PROVIDES:  "THE UNION, THE STATES AND
THE MUNICIPALITIES ARE FORBIDDEN:...  C) TO TAX GOODS, INCOME OR
SERVICES OF EACH OTHER."  SPEAKING OF THE EARLIER CONSTITUTION, A
COMMENTATOR NOTES:  "THESE LIMITATIONS ON THE FEDERAL TAXING POWER ARE
ALL TAKEN FROM OUR OWN JURISPRUDENCE, EITHER BY DIRECT TRANSCRIPTION
FROM THE CONSTITUTION OF THE UNITED STATES OR BY THE INCORPORATION OF
PRINCIPLES LAID DOWN IN DECISIONS OF OUR (THE UNITED STATES) SUPREME
COURT, AS IS THE CASE WITH THE LAST-NAMED PROHIBITION" - "THE
PROHIBITION AGAINST TAXING THE PROPERTY, REVENUES, OR SERVICES OF THE
STATES."  JAMES, FEDERAL BASIS OF THE BRAZILIAN SYSTEM (1923) 45. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

I JOIN IN THE OPINION OF MR. JUSTICE FRANKFURTER AND IN THE RESULT. 
I HAVE NO DOUBT UPON THE QUESTION OF POWER.  THE SHIFT FROM IMMUNITY TO
TAXABILITY HAS GONE TOO FAR, AND WITH TOO MUCH REASON TO SUSTAIN IT, AS
RESPECTS BOTH STATE FUNCTIONARIES AND STATE FUNCTIONS, FOR BACKTRACKING
TO DOCTRINES FOUNDED IN PHILOSOPHIES OF SOVEREIGNTY MORE CURRENT AND
PERHAPS MORE REALISTIC IN AN EARLIER DAY.  TOO MUCH IS, OR MAY BE, AT
STAKE FOR THE NATION TO PERMIT RELIEVING THE STATES OF THEIR DUTY TO
SUPPORT IT, FINANCIALLY AS OTHERWISE, WHEN THEY TAKE OVER INCREASINGLY
THE THINGS MEN HAVE BEEN ACCUSTOMED TO CARRY ON AS PRIVATE, AND
THEREFORE TAXABLE, ENTERPRISE.  COMPETITIVE CONSIDERATIONS UNITE WITH
THE NECESSITY FOR SECURING THE FEDERAL REVENUE, IN A TIME WHEN THE
FEDERAL BURDEN GROWS HEAVIER PROPORTIONATELY THAN THAT OF THE STATES,
TO FORBID THAT THEY BE FREE TO UNDERMINE RATHER THAN OBLIGATED TO
SUSTAIN THE NATION'S FINANCIAL REQUIREMENTS. 

ALL AGREE THAT NOT ALL OF THE FORMER IMMUNITY IS GONE.  FOR THE
PRESENT I ASSENT TO THE LIMITATION AGAINST DISCRIMINATION, WHICH I TAKE
TO MEAN THAT STATE FUNCTIONS MAY NOT BE SINGLED OUT FOR TAXATION WHEN
OTHERS PERFORMING THEM ARE NOT TAXED OR FOR SPECIAL BURDENS WHEN THEY
ARE.  WHAT WOULD HAPPEN IF THE STATE SHOULD TAKE OVER A MONOPOLY OF
TRADITIONALLY PRIVATE, INCOME-PRODUCING BUSINESS MAY BE LEFT FOR THE
FUTURE, IN SO FAR AS THIS HAS NOT BEEN SETTLED BY SOUTH CAROLINA V.
UNITED STATES, 199 U.S. 437.  PERHAPS THERE ARE OTHER LIMITATIONS ALSO,
APART FROM THE PRACTICAL ONE IMPOSED BY THE STATE'S REPRESENTATION IN
CONGRESS.  IF THE WAY WERE OPEN, I WOULD ADD A FURTHER RESTRICTING
FACTOR, NOT OF CONSTITUTIONAL IMPORT, BUT OF CONSTRUCTION. 

WITH THE PASSING OF THE FORMER BROAD IMMUNITY, I SHOULD THINK TWO
CONSIDERATIONS WELL MIGHT BE TAKEN TO REQUIRE THAT, BEFORE A FEDERAL
TAX CAN BE APPLIED TO ACTIVITIES CARRIED ON DIRECTLY BY THE STATES, THE
INTENTION OF CONGRESS TO TAX THEM SHOULD BE STATED EXPRESSLY AND NOT
DRAWN MERELY FROM GENERAL WORDING OF THE STATUTE APPLICABLE ORDINARILY
TO PRIVATE SOURCES OF REVENUE.  ONE OF THESE IS SIMPLY A REFLECTION OF
THE OLD IMMUNITY, IN THE PRESENCE OF WHICH, OF COURSE, IT WOULD BE
INCONCEIVABLE THAT GENERAL WORDING, SUCH AS THE STATUTE NOW IN QUESTION
CONTAINS, COULD BE TAKEN AS INTENDED TO APPLY TO THE STATES.  FN1  THE
OTHER IS THAT, QUITE APART FROM REFLECTIONS OF THAT IMMUNITY, I SHOULD
EXPECT THAT CONGRESS WOULD SAY SO EXPLICITLY, WERE ITS PURPOSE ACTUALLY
TO INCLUDE STATE FUNCTIONS, WHERE THE LEGAL INCIDENCE OF THE TAX FALLS
UPON THE STATE.  FN2  AND THE CONCURRING OPINION OF MR. JUSTICE BRADLEY
IN UNITED STATES V. RAILROAD CO., 17 WALL.  322, 333, INDICATES THAT HE
MAY HAVE BEEN OF THIS GENERAL VIEW. 

NEVERTHELESS, SINCE SOUTH CAROLINA V. UNITED STATES, SUPRA, SUCH A
RULE OF CONSTRUCTION SEEMS NOT TO HAVE BEEN THOUGHT REQUIRED.  FN3
ACCORDINGLY, ALTHOUGH I GRAVELY DOUBT THAT WHEN CONGRESS TAXED EVERY
"PERSON" IT INTENDED ALSO TO TAX EVERY STATE, THE RULING HAS BEEN MADE
FN4  AND I THEREFORE ACQUIESCE IN THIS CASE. 

FN1  TO GIVE REMOVAL OF THE IMMUNITY THE EFFECT OF INVERTING THE
INTENTION OF CONGRESS, IN ITS LATER USE OF THE SAME FORMULA, IS A LEAP
IN CONSTRUCTION LONGER THAN SEEMS REASONABLE TO MAKE. 

FN2  CF. 26 U.S.C. SEC. 22(A) WHERE CONGRESS HAS SPECIFICALLY
PROVIDED THAT COMPENSATION FOR PERSONAL SERVICE, INCLUDIBLE IN GROSS
INCOME, INCLUDES COMPENSATION FOR PERSONAL SERVICE AS AN OFFICER OR
EMPLOYEE OF A STATE, OR ANY POLITICAL SUBDIVISION THEREOF, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY ONE OR MORE OF THE FOREGOING.    FN3
UNIVERSITY OF ILLINOIS V. UNITED STATES, 289 U.S. 48; OHIO V.
HELVERING, 292 U.S. 360.  SEE MANHATTAN CO. V. BLAKE, 148 U.S. 412.  IN
GRAVES V. N.Y. EX REL. O'KEEFE, 306 U.S. 466, 479, 480, THE COURT SAID,
IN ANOTHER CONNECTION:  "IT IS TRUE THAT THE SILENCE OF CONGRESS, WHEN
IT HAS AUTHORITY TO SPEAK, MAY SOMETIMES GIVE RISE TO AN IMPLICATION AS
TO THE CONGRESSIONAL PURPOSE ....  BUT THERE IS LITTLE SCOPE FOR THE
APPLICATION OF THAT DOCTRINE TO THE TAX IMMUNITY OF GOVERNMENTAL
INSTRUMENTALITIES." 

FN4  SEE OHIO V. HELVERING, SUPRA.    MR. CHIEF JUSTICE STONE
CONCURRING. 

MR. JUSTICE REED, MR. JUSTICE MURPHY, MR. JUSTICE BURTON AND I CONCUR
IN THE RESULT.  WE ARE OF THE OPINION THAT THE TAX HERE INVOLVED SHOULD
BE SUSTAINED AND THE JUDGMENT BELOW AFFIRMED. 

IN VIEW OF OUR DECISIONS IN SOUTH CAROLINA V. UNITED STATES, 199 U.S.
437; OHIO V. HELVERING, 292 U.S. 360; HELVERING V. POWERS, 293 U.S.
214; AND ALLEN V. REGENTS, 304 U.S. 439, WE WOULD FIND IT DIFFICULT NOT
TO SUSTAIN THE TAX IN THIS CASE, EVEN THOUGH WE REGARD AS UNTENABLE THE
DISTINCTION BETWEEN "GOVERNMENTAL" AND "PROPRIETARY" INTERESTS ON WHICH
THOSE CASES REST TO SOME EXTENT.  BUT WE ARE NOT PREPARED TO SAY THAT
THE NATIONAL GOVERNMENT MAY CONSTITUTIONALLY LAY A NON-DISCRIMINATORY
TAX ON EVERY CLASS OF PROPERTY AND ACTIVITIES OF STATES AND INDIVIDUALS
ALIKE. 

CONCEDEDLY A FEDERAL TAX DISCRIMINATING AGAINST A STATE WOULD BE AN
UNCONSTITUTIONAL EXERTION OF POWER OVER A COEXISTING SOVEREIGNTY WITHIN
THE SAME FRAMEWORK OF GOVERNMENT.  BUT OUR DIFFICULTY WITH THE FORMULA,
NOW FIRST SUGGESTED AS OFFERING A NEW SOLUTION FOR AN OLD PROBLEM, IS
THAT A FEDERAL TAX WHICH IS NOT DISCRIMINATORY AS TO THE SUBJECT MATTER
MAY NEVERTHELESS SO AFFECT THE STATE, MERELY BECAUSE IT IS A STATE THAT
IS BEING TAXED, AS TO INTERFERE UNDULY WITH THE STATE'S PERFORMANCE OF
ITS SOVEREIGN FUNCTIONS OF GOVERNMENT.  THE COUNTERPART OF SUCH UNDUE
INTERFERENCE HAS BEEN RECOGNIZED SINCE MARSHALL'S DAY AS THE IMPLIED
IMMUNITY OF EACH OF THE DUAL SOVEREIGNTIES OF OUR CONSTITUTIONAL SYSTEM
FROM TAXATION BY THE OTHER.  MCCULLOCH V. MARYLAND, 4 WHEAT.  316.  WE
ADD NOTHING TO THIS FORMULA BY SAYING, IN A NEW FORM OF WORDS, THAT A
TAX WHICH CONGRESS APPLIES GENERALLY TO THE PROPERTY AND ACTIVITIES OF
PRIVATE CITIZENS MAY NOT BE IN SOME INSTANCES CONSTITUTIONALLY EXTENDED
TO THE STATES, MERELY BECAUSE THE STATES ARE INCLUDED AMONG THOSE WHO
PAY TAXES ON A LIKE SUBJECT OF TAXATION. 

IF THE PHRASE "NON-DISCRIMINATORY TAX" IS TO BE TAKEN IN ITS LONG
ACCEPTED MEANING AS REFERRING TO A TAX LAID ON A LIKE SUBJECT MATTER,
WITHOUT REGARD TO THE PERSONALITY OF THE TAXPAYER, WHETHER A STATE, A
CORPORATION OR A PRIVATE INDIVIDUAL, IT IS PLAIN THAT THERE MAY BE NON
DISCRIMINATORY TAXES WHICH, WHEN LAID ON A STATE, WOULD NEVERTHELESS
IMPAIR THE SOVEREIGN STATUS OF THE STATE QUITE AS MUCH AS A LIKE TAX
IMPOSED BY A STATE ON PROPERTY OR ACTIVITIES OF THE NATIONAL
GOVERNMENT.  MAYO V. UNITED STATES, 319 U.S. 441, 447-448.  THIS IS NOT
BECAUSE THE TAX CAN BE REGARDED AS DISCRIMINATORY BUT BECAUSE A
SOVEREIGN GOVERNMENT IS THE TAXPAYER, AND THE TAX, EVEN THOUGH NON
DISCRIMINATORY, MAY BE REGARDED AS INFRINGING ITS SOVEREIGNTY. 

A STATE MAY, LIKE A PRIVATE INDIVIDUAL, OWN REAL PROPERTY AND RECEIVE
INCOME.  BUT IN VIEW OF OUR FORMER DECISIONS WE COULD HARDLY SAY THAT A
GENERAL NON-DISCRIMINATORY REAL ESTATE TAX (APPORTIONED), OR AN INCOME
TAX LAID UPON CITIZENS AND STATES ALIKE COULD BE CONSTITUTIONALLY
APPLIED TO THE STATE'S CAPITOL, ITS STATE-HOUSE, ITS PUBLIC SCHOOL
HOUSES, PUBLIC PARKS, OR ITS REVENUES FROM TAXES OR SCHOOL LANDS, EVEN
THOUGH ALL REAL PROPERTY AND ALL INCOME OF THE CITIZEN IS TAXED.  IF IT
BE SAID THAT PRIVATE CITIZENS DO NOT OWN STATE-HOUSES OR PUBLIC SCHOOL
BUILDINGS OR RECEIVE TAX REVENUES, IT MAY EQUALLY BE SAID THAT PRIVATE
CITIZENS DO NOT CONDUCT A STATE-OWNED LIQUOR BUSINESS OR DERIVE REVENUE
FROM A STATE-OWNED ATHLETIC FIELD.  OBVIOUSLY CONGRESS, IN TAXING
PROPERTY OR INCOME GENERALLY, IS NOT TAXING A STATE "AS A STATE"
BECAUSE THE STATE HAPPENS TO OWN REAL ESTATE OR RECEIVE INCOME. 
WHETHER A STATE OR AN INDIVIDUAL IS TAXED, IN EACH INSTANCE THE TAXABLE
OCCASION IS THE SAME.  THE TAX REACHES THE STATE BECAUSE OF THE
CONGRESSIONAL PURPOSE TO LAY THE TAX ON THE SUBJECT MATTER CHOSEN,
REGARDLESS OF WHO PAYS IT.  TO SAY THAT THE TAX FAILS BECAUSE THE STATE
HAPPENS TO BE THE TAXPAYER IS ONLY TO SAY THAT THE STATE, TO SOME
EXTENT UNDEFINED, IS CONSTITUTIONALLY IMMUNE FROM FEDERAL TAXATION. 
ONLY WHEN AND BECAUSE THE SUBJECT OF TAXATION IS STATE PROPERTY OR A
STATE ACTIVITY MUST WE CONSIDER WHETHER SUCH A NON-DISCRIMINATORY TAX
UNDULY INTERFERES WITH THE PERFORMANCE OF THE STATE'S FUNCTIONS OF
GOVERNMENT.  IF IT DOES, THEN THE FACT THAT THE TAX IS NON
DISCRIMINATORY DOES NOT SAVE IT.  IF WE ARE TO TREAT AS INVALID,
BECAUSE DISCRIMINATORY, A TAX ON "STATE ACTIVITIES AND STATE-OWNED
PROPERTY THAT PARTAKE OF UNIQUENESS FROM THE POINT OF VIEW OF
INTERGOVERNMENTAL RELATIONS," IT IS PLAIN THAT THE INVALIDITY IS DUE
WHOLLY TO THE FACT THAT IT IS A STATE WHICH IS BEING TAXED SO AS UNDULY
TO INFRINGE, IN SOME MANNER, THE PERFORMANCE OF ITS FUNCTIONS AS A
GOVERNMENT WHICH THE CONSTITUTION RECOGNIZES AS SOVEREIGN. 

IT IS ENOUGH FOR PRESENT PURPOSES THAT THE IMMUNITY OF THE STATE FROM
FEDERAL TAXATION WOULD, IN THIS CASE, ACCOMPLISH A WITHDRAWAL FROM THE
TAXING POWER OF THE NATION A SUBJECT OF TAXATION OF A NATURE WHICH HAS
BEEN TRADITIONALLY WITHIN THAT POWER FROM THE BEGINNING.  ITS EXERCISE
NOW, BY A NON-DISCRIMINATORY TAX, DOES NOT CURTAIL THE BUSINESS OF THE
STATE GOVERNMENT MORE THAN IT DOES THE LIKE BUSINESS OF THE CITIZEN. 
IT GIVES MERELY AN ACCUSTOMED AND REASONABLE SCOPE TO THE FEDERAL
TAXING POWER.  SUCH A WITHDRAWAL FROM A NON-DISCRIMINATORY FEDERAL TAX,
AND ONE WHICH DOES NOT BEAR ON THE STATE ANY DIFFERENTLY THAN ON THE
CITIZEN, IS ITSELF AN IMPAIRMENT OF THE TAXING POWER OF THE NATIONAL
GOVERNMENT, AND THE ACTIVITY TAXED IS SUCH THAT ITS TAXATION DOES NOT
UNDULY IMPAIR THE STATE'S FUNCTIONS OF GOVERNMENT.  THE NATURE OF THE
TAX IMMUNITY REQUIRES THAT IT BE SO CONSTRUED AS TO ALLOW TO EACH
GOVERNMENT REASONABLE SCOPE FOR ITS TAXING POWER, METCALF & EDDY V.
MITCHELL, 269 U.S. 514, 524.  THE NATIONAL TAXING POWER WOULD BE UNDULY
CURTAILED IF THE STATE, BY EXTENDING ITS ACTIVITIES, COULD WITHDRAW
FROM IT SUBJECTS OF TAXATION TRADITIONALLY WITHIN IT. HELVERING V.
POWERS, SUPRA, 225; OHIO V. HELVERING, SUPRA; SOUTH CAROLINA V. UNITED
STATES, SUPRA, AND SEE MURRAY V. WILSON DISTILLING CO., 213 U.S. 151,
173, EXPLAINING SOUTH CAROLINA V. UNITED STATES, SUPRA. 

THE PROBLEM IS NOT ONE TO BE SOLVED BY A FORMULA, BUT WE MAY LOOK TO
THE STRUCTURE OF THE CONSTITUTION AS OUR GUIDE TO DECISION.  "IN A
BROAD SENSE, THE TAXING POWER OF EITHER GOVERNMENT, EVEN WHEN EXERCISED
IN A MANNER ADMITTEDLY NECESSARY AND PROPER, UNAVOIDABLY HAS SOME
EFFECT UPON THE OTHER.  THE BURDEN OF FEDERAL TAXATION NECESSARILY SETS
AN ECONOMIC LIMIT TO THE PRACTICAL OPERATION OF THE TAXING POWER OF THE
STATES, AND VICE VERSA.  TAXATION BY EITHER THE STATE OR THE FEDERAL
GOVERNMENT AFFECTS IN SOME MEASURE THE COST OF OPERATION OF THE OTHER. 

"BUT NEITHER GOVERNMENT MAY DESTROY THE OTHER NOR CURTAIL IN ANY
SUBSTANTIAL MANNER THE EXERCISE OF ITS POWERS.  HENCE THE LIMITATION
UPON THE TAXING POWER OF EACH, SO FAR AS IT AFFECTS THE OTHER, MUST
RECEIVE A PRACTICAL CONSTRUCTION WHICH PERMITS BOTH TO FUNCTION WITH
THE MINIMUM OF INTERFERENCE EACH WITH THE OTHER; AND THAT LIMITATION
CANNOT BE SO VARIED OR EXTENDED AS SERIOUSLY TO IMPAIR EITHER THE
TAXING POWER OF THE GOVERNMENT IMPOSING THE TAX  ...  OR THE
APPROPRIATE EXERCISE OF THE FUNCTIONS OF THE GOVERNMENT AFFECTED BY
IT."  METCALF & EDDY V. MITCHELL, SUPRA, 523-524. 

SINCE ALL TAXES MUST BE LAID BY GENERAL, THAT IS, WORKABLE, RULES,
THE EFFECT OF THE IMMUNITY ON THE NATIONAL TAXING POWER IS TO BE
DETERMINED NOT QUANTITATIVELY BUT BY ITS OPERATION AND TENDENCY IN
WITHDRAWING TAXABLE PROPERTY OR ACTIVITIES FROM THE REACH OF FEDERAL
TAXATION.  NOT THE EXTENT TO WHICH A PARTICULAR STATE ENGAGES IN THE
ACTIVITY, BUT THE NATURE AND EXTENT OF THE ACTIVITY BY WHOMSOEVER
PERFORMED IS THE RELEVANT CONSIDERATION. 

REGARDED IN THIS LIGHT WE CANNOT SAY THAT THE CONSTITUTION EITHER
REQUIRES IMMUNITY OF THE STATE'S MINERAL WATER BUSINESS FROM FEDERAL
TAXATION, OR DENIES TO THE FEDERAL GOVERNMENT POWER TO LAY THE TAX. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

                                  I 

IF SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437, IS TO STAND, THE
PRESENT JUDGMENT WOULD HAVE TO BE AFFIRMED.  FOR I AGREE THAT THERE IS
NO ESSENTIAL DIFFERENCE BETWEEN A FEDERAL TAX ON SOUTH CAROLINA'S
LIQUOR BUSINESS AND A FEDERAL TAX ON NEW YORK'S MINERAL WATER
BUSINESS.  WHETHER SOUTH CAROLINA V. UNITED STATES REACHES THE RIGHT
RESULT IS ANOTHER MATTER. 

MR. JUSTICE BRANDEIS STATED THAT "STARE DECISIS IS USUALLY THE WISE
POLICY, BECAUSE IN MOST MATTERS IT IS MORE IMPORTANT THAT THE
APPLICABLE RULE OF LAW BE SETTLED THAN THAT IT BE SETTLED RIGHT." 
BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393, 406.  BUT THROUGHOUT
THE HISTORY OF THE COURT STARE DECISIS HAS HAD ONLY A LIMITED
APPLICATION IN THE FIELD OF CONSTITUTIONAL LAW.  AND IT IS A WISE
POLICY WHICH LARGELY RESTRICTS IT TO THOSE AREAS OF THE LAW WHERE
CORRECTION CAN BE HAD BY LEGISLATION.  OTHERWISE THE CONSTITUTION LOSES
THE FLEXIBILITY NECESSARY IF IT IS TO SERVE THE NEEDS OF SUCCESSIVE
GENERATIONS. 

I DO NOT BELIEVE SOUTH CAROLINA V. UNITED STATES STATES THE CORRECT
RULE.  A STATE'S PROJECT IS AS MUCH A LEGITIMATE GOVERNMENTAL ACTIVITY
WHETHER IT IS TRADITIONAL, OR AKIN TO PRIVATE ENTERPRISE, OR CONDUCTED
FOR PROFIT.  CF. HELVERING V. GERHARDT, 304 U.S. 405, 426-427.  A STATE
MAY DEEM IT AS ESSENTIAL TO ITS ECONOMY THAT IT OWN AND OPERATE A
RAILROAD, A MILL, OR AN IRRIGATION SYSTEM AS IT DOES TO OWN AND OPERATE
BRIDGES, STREET LIGHTS, OR A SEWAGE DISPOSAL PLANT.  WHAT MIGHT HAVE
BEEN VIEWED IN AN EARLIER DAY AS AN IMPROVIDENT OR EVEN DANGEROUS
EXTENSION OF STATE ACTIVITIES MAY TODAY BE DEEMED INDISPENSABLE.  BUT
AS MR. JUSTICE WHITE SAID IN HIS DISSENT IN SOUTH CAROLINA V. UNITED
STATES, ANY ACTIVITY IN WHICH A STATE ENGAGES WITHIN THE LIMITS OF ITS
POLICE POWER IS A LEGITIMATE GOVERNMENTAL ACTIVITY.  HERE A STATE IS
DISPOSING OF SOME OF ITS NATURAL RESOURCES.  TOMORROW IT MAY ISSUE
SECURITIES, SELL POWER FROM ITS PUBLIC POWER PROJECT, OR MANUFACTURE
FERTILIZER.  EACH IS AN EXERCISE OF ITS POWER OF SOVEREIGNTY.  MUST IT
PAY THE FEDERAL GOVERNMENT FOR THE PRIVILEGE OF EXERCISING THAT
INHERENT POWER?  IF THE CONSTITUTION GRANTS IT IMMUNITY FROM A TAX ON
THE ISSUANCE OF SECURITIES, ON WHAT GROUNDS CAN IT BE FORCED TO PAY A
TAX WHEN IT SELLS POWER OR DISPOSES OF OTHER NATURAL RESOURCES? 

                                  II 

ONE VIEW, JUST ANNOUNCED, PURPORTS TO REJECT THE DISTINCTION WHICH
SOUTH CAROLINA V. UNITED STATES DREW BETWEEN THOSE ACTIVITIES OF A
STATE WHICH ARE AND THOSE WHICH ARE NOT STRICTLY GOVERNMENTAL, USUAL,
OR TRADITIONAL.  BUT IT IS SAID THAT A FEDERAL TAX ON A STATE WILL BE
SUSTAINED SO LONG AS CONGRESS "DOES NOT ATTEMPT TO TAX A STATE BECAUSE
IT IS A STATE."  YET IF THAT MEANS THAT A FEDERAL REAL ESTATE TAX OF
GENERAL APPLICATION (APPORTIONED) WOULD BE VALID IF APPLIED TO A POWER
DAM OWNED BY A STATE BUT INVALID IF APPLIED TO A STATE-HOUSE, THE OLD
DOCTRINE HAS MERELY BEEN POURED INTO A NEW CONTAINER.  IF, ON THE OTHER
HAND, ANY FEDERAL TAX ON ANY STATE ACTIVITY WERE SUSTAINED UNLESS IT
DISCRIMINATED AGAINST THE STATE, THEN A CONSTITUTIONAL RULE WOULD BE
FASHIONED WHICH WOULD UNDERMINE THE SOVEREIGNTY OF THE STATES AS IT HAS
BEEN UNDERSTOOD THROUGHOUT OUR HISTORY.  ANY SUCH CHANGE SHOULD BE
ACCOMPLISHED ONLY BY CONSTITUTIONAL AMENDMENT.  THE DOCTRINE OF STATE
IMMUNITY IS TOO INTRICATELY INVOLVED IN PROJECTS WHICH HAVE BEEN
LAUNCHED TO BE WHITTLED DOWN BY JUDICIAL FIAT. 

                                 III 

WOODROW WILSON STATED THE STARTING POINT FOR ME WHEN HE SAID  FN1
THAT 

"THE STATES OF COURSE POSSESS EVERY POWER THAT GOVERNMENT HAS EVER
ANYWHERE EXERCISED, EXCEPT ONLY THOSE POWERS WHICH THEIR OWN
CONSTITUTIONS OR THE CONSTITUTION OF THE UNITED STATES EXPLICITLY OR BY
PLAIN INFERENCE WITHHOLD.  THEY ARE THE ORDINARY GOVERNMENTS OF THE
COUNTRY; THE FEDERAL GOVERNMENT IS ITS INSTRUMENT ONLY FOR PARTICULAR
PURPOSES." 

THE SUPREMACY CLAUSE, ARTICLE VI, CLAUSE 2, APPLIES TO FEDERAL LAWS
WITHIN THE POWERS DELEGATED TO CONGRESS BY THE STATES.  BUT IT IS
ANTAGONISTIC TO THE VERY IMPLICATIONS OF OUR FEDERAL SYSTEM TO SAY THAT
THE POWER OF CONGRESS TO LAY AND COLLECT TAXES, ARTICLE I, SEC. 8,
INCLUDES THE POWER TO TAX ANY STATE ACTIVITY OR FUNCTION SO LONG AS THE
TAX DOES NOT DISCRIMINATE AGAINST THE STATES.  FN2  AS STATED IN UNITED
STATES V. RAILROAD CO., 17 WALL.  322, 327-328, 

"THE RIGHT OF THE STATES TO ADMINISTER THEIR OWN AFFAIRS THROUGH
THEIR LEGISLATIVE, EXECUTIVE, AND JUDICIAL DEPARTMENTS, IN THEIR OWN
MANNER THROUGH THEIR OWN AGENCIES, IS CONCEDED BY THE UNIFORM DECISIONS
OF THIS COURT AND BY THE PRACTICE OF THE FEDERAL GOVERNMENT FROM ITS
ORGANIZATION.  THIS CARRIES WITH IT AN EXEMPTION OF THOSE AGENCIES AND
INSTRUMENTS, FROM THE TAXING POWER OF THE FEDERAL GOVERNMENT.  IF THEY
MAY BE TAXED LIGHTLY, THEY MAY BE TAXED HEAVILY; IF JUSTLY,
OPPRESSIVELY.  THEIR OPERATION MAY BE IMPEDED AND MAY BE DESTROYED, IF
ANY INTERFERENCE IS PERMITTED." 

CAN IT BE THAT A GENERAL FEDERAL TAX ON THE ISSUANCE OF SECURITIES
WOULD BE CONSTITUTIONAL IF APPLIED TO THE ISSUANCE OF MUNICIPAL
SECURITIES OR OF STATE BONDS OR OF THE SECURITIES OF PUBLIC UTILITY
DISTRICTS ORGANIZED BY THE STATES?  COULD THE STATES BE CLASSIFIED WITH
FARMERS, BUSINESS MEN, INDUSTRIAL WORKERS, JUDGES, AND OTHER ORDINARY
CITIZENS AND REQUIRED TO PAY AN INCOME TAX TO THE FEDERAL GOVERNMENT? 
IT IS SAID THAT A FEDERAL INCOME TAX ON THE TAX REVENUES OF A STATE
WOULD NOT BE SUSTAINED BECAUSE SUCH A TAX WOULD INTERFERE WITH A
SOVEREIGN FUNCTION OF THE STATE.  BUT CAN IT BE THAT A FEDERAL INCOME
TAX ON STATE REVENUES DERIVED NOT FROM TAXES BUT FROM THE SALE OF
MINERAL WATER, LIQUOR, LUMBER AND THE LIKE, WOULD BE SUSTAINED?    A
TAX IS A POWERFUL, REGULATORY INSTRUMENT.  LOCAL GOVERNMENT IN THIS
FREE LAND DOES NOT EXIST FOR ITSELF.  THE FACT THAT LOCAL GOVERNMENT
MAY ENTER THE DOMAIN OF PRIVATE ENTERPRISE AND OPERATE A PROJECT FOR
PROFIT DOES NOT PUT IT IN THE CLASS OF PRIVATE BUSINESS ENTERPRISE FOR
TAX PURPOSES.  LOCAL GOVERNMENT EXISTS TO PROVIDE FOR THE WELFARE OF
ITS PEOPLE, NOT FOR A LIMITED GROUP OF STOCKHOLDERS.  IF THE FEDERAL
GOVERNMENT CAN PLACE THE LOCAL GOVERNMENTS ON ITS TAX COLLECTOR'S LIST,
THEIR CAPACITY TO SERVE THE NEEDS OF THEIR CITIZENS IS AT ONCE HAMPERED
OR CURTAILED.  THE FIELD OF FEDERAL EXCISE TAXATION ALONE IS
PRACTICALLY WITHOUT LIMITS.  MANY STATE ACTIVITIES ARE IN MARGINAL
ENTERPRISES WHERE PRIVATE CAPITAL REFUSES TO VENTURE.  ADD TO THE COST
OF THESE PROJECTS A FEDERAL TAX AND THE SOCIAL PROGRAM MAY BE DESTROYED
BEFORE IT CAN BE LAUNCHED.  IN ANY CASE, THE REPERCUSSIONS OF SUCH A
FUNDAMENTAL CHANGE ON THE CREDIT OF THE STATES AND ON THEIR PROGRAMS TO
TAKE CARE OF THE NEEDY AND TO BUILD FOR THE FUTURE WOULD BE
CONSIDERABLE.  TO SAY THE PRESENT TAX WILL BE SUSTAINED BECAUSE IT DOES
NOT IMPAIR THE STATE'S FUNCTIONS OF GOVERNMENT IS TO CONCLUDE EITHER
THAT THE SALE BY THE STATE OF ITS MINERAL WATER IS NOT A FUNCTION OF
GOVERNMENT OR THAT THE PRESENT TAX IS SO LIGHT AS TO BE NO BURDEN.  THE
FORMER OBVIOUSLY IS NOT TRUE.  THE LATTER OVERLOOKS THE FACT THAT THE
POWER TO TAX LIGHTLY IS THE POWER TO TAX SEVERELY.  THE POWER TO TAX IS
INDEED ONE OF THE MOST EFFECTIVE FORMS OF REGULATION.  AND NO MORE
POWERFUL INSTRUMENT FOR CENTRALIZATION OF GOVERNMENT COULD BE DEVISED. 
FOR WITH THE FEDERAL GOVERNMENT IMMUNE AND THE STATES SUBJECT TO TAX,
THE ECONOMIC ABILITY OF THE FEDERAL GOVERNMENT TO EXPAND ITS ACTIVITIES
AT THE EXPENSE OF THE STATES IS AT ONCE APPARENT.  THAT IS THE RESULT
WHETHER THE RULE OF SOUTH CAROLINA V. UNITED STATES BE PERPETUATED OR A
NEW RULE OF DISCRIMINATION BE ADOPTED. 

THE NOTION THAT THE SOVEREIGN POSITION OF THE STATES MUST FIND ITS
PROTECTION IN THE WILL OF A TRANSIENT MAJORITY OF CONGRESS IS FOREIGN
TO AND A NEGATION OF OUR CONSTITUTIONAL SYSTEM.  THERE WILL OFTEN BE
VITAL REGIONAL INTERESTS REPRESENTED BY NO MAJORITY IN CONGRESS.  THE
CONSTITUTION WAS DESIGNED TO KEEP THE BALANCE BETWEEN THE STATES AND
THE NATION OUTSIDE THE FIELD OF LEGISLATIVE CONTROVERSY. 

THE IMMUNITY OF THE STATES FROM FEDERAL TAXATION IS NO LESS CLEAR
BECAUSE IT IS IMPLIED.  THE STATES ON ENTERING THE UNION SURRENDERED
SOME OF THEIR SOVEREIGNTY.  IT WAS FURTHER CURTAILED AS VARIOUS
AMENDMENTS WERE ADOPTED.  BUT THE TENTH AMENDMENT PROVIDES THAT "THE
POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION, NOR
PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES
RESPECTIVELY, OR TO THE PEOPLE."  THE CONSTITUTION IS A COMPACT BETWEEN
SOVEREIGNS.  THE POWER OF ONE SOVEREIGN TO TAX ANOTHER IS AN INNOVATION
SO STARTLING AS TO REQUIRE EXPLICIT AUTHORITY IF IT IS TO BE ALLOWED. 
IF THE POWER OF THE FEDERAL GOVERNMENT TO TAX THE STATES IS CONCEDED,
THE RESERVED POWER OF THE STATES GUARANTEED BY THE TENTH AMENDMENT DOES
NOT GIVE THEM THE INDEPENDENCE WHICH THEY HAVE ALWAYS BEEN ASSUMED TO
HAVE.  THEY ARE RELEGATED TO A MORE SERVILE STATUS.  THEY BECOME
SUBJECT TO INTERFERENCE AND CONTROL BOTH IN THE FUNCTIONS WHICH THEY
EXERCISE AND THE METHODS WHICH THEY EMPLOY.  THEY MUST PAY THE FEDERAL
GOVERNMENT FOR THE PRIVILEGE OF EXERCISING THE POWERS OF SOVEREIGNTY
GUARANTEED THEM BY THE CONSTITUTION,  FN3 WHETHER, AS HERE, THEY ARE
DISPOSING OF THEIR NATURAL RESOURCES, OR TOMORROW THEY ISSUE SECURITIES
OR PERFORM ANY OTHER ACTS WITHIN THE SCOPE OF THEIR POLICE POWER. 

OF COURSE, THE LEVYING OF THE PRESENT TAX DOES NOT CURTAIL THE
BUSINESS OF THE STATE GOVERNMENT MORE THAN IT DOES THE LIKE BUSINESS OF
THE CITIZEN.  BUT THE SAME MIGHT BE TRUE IN THE CASE OF MANY STATE
ACTIVITIES WHICH HAVE LONG BEEN ASSUMED TO BE IMMUNE FROM FEDERAL
TAXATION.  WHEN A MUNICIPALITY ACQUIRES A WATER SYSTEM OR AN ELECTRIC
POWER PLANT AND TRANSMISSION FACILITIES, IT WITHDRAWS PROJECTS FROM THE
FIELD OF PRIVATE ENTERPRISE.  IS THE TAX IMMUNITY TO BE DENIED BECAUSE
A TAX ON THE MUNICIPALITY WOULD NOT CURTAIL THE MUNICIPALITY MORE THAN
IT WOULD THE PRIOR PRIVATE OWNER?  IS THE MUNICIPALITY TO BE TAXED
WHENEVER IT ENGAGES IN AN ACTIVITY WHICH ONCE WAS IN THE FIELD OF
PRIVATE ENTERPRISE AND THEREFORE WAS ONCE TAXABLE?  EVERY EXPANSION OF
STATE ACTIVITY SINCE THE ADOPTION OF THE CONSTITUTION LIMITS THE REACH
OF FEDERAL TAXATION IF STATE IMMUNITY IS RECOGNIZED.  YET NONE WOULD
CONCEDE THAT THE SOVEREIGN POWERS OF THE STATES WERE LIMITED TO THOSE
WHICH THEY EXERCISED IN 1787.  NOR CAN IT BE SAID THAT IF THE PRESENT
TAX IS NOT SUSTAINED THERE WILL BE WITHDRAWN FROM THE TAXING POWER OF
THE FEDERAL GOVERNMENT A SUBJECT OF TAXATION WHICH HAS BEEN
TRADITIONALLY WITHIN THAT POWER FROM THE BEGINNING.  NOT UNTIL SOUTH
CAROLINA V. UNITED STATES WAS IT HELD THAT SO-CALLED BUSINESS
ACTIVITIES OF A STATE WERE SUBJECT TO FEDERAL TAXATION.  THAT WAS AFTER
THE TURN OF THE PRESENT CENTURY.  THUS THE MAJOR OBJECTION TO THE
SUGGESTED TEST IS THAT IT DISREGARDS THE TENTH AMENDMENT, PLACES THE
SOVEREIGN STATES ON THE SAME PLANE AS PRIVATE CITIZENS, AND MAKES THE
SOVEREIGN STATES PAY THE FEDERAL GOVERNMENT FOR THE PRIVILEGE OF
EXERCISING THE POWERS OF SOVEREIGNTY GUARANTEED THEM BY THE
CONSTITUTION. 

THAT THIS IDEA IS HOSTILE TO THE VIEW OF THE FRAMERS OF THE
CONSTITUTION IS EVIDENT FROM HAMILTON'S DISCUSSION OF THE TAXING POWER
OF THE FEDERAL GOVERNMENT IN THE FEDERALIST, NOS. 30
36(SESQUICENTENNIAL ED. 1937) PP. 183-224.  HE REPEATEDLY STATED THAT
THE TAXING POWERS OF THE STATES AND OF THE FEDERAL GOVERNMENT WERE TO
BE "CONCURRENT" - "THE ONLY ADMISSIBLE SUBSTITUTE FOR AN ENTIRE
SUBORDINATION, IN RESPECT TO THIS BRANCH OF POWER, OF THE STATE
AUTHORITY TO THAT OF THE UNION."  PP. 202-203.  HE ALSO STATED, "THE
CONVENTION THOUGHT THE CONCURRENT JURISDICTION PREFERABLE TO THAT
SUBORDINATION; AND IT IS EVIDENT THAT IT HAS AT LEAST THE MERIT OF
RECONCILING AN INDEFINITE CONSTITUTIONAL POWER OF TAXATION IN THE
FEDERAL GOVERNMENT WITH AN ADEQUATE AND INDEPENDENT POWER IN THE STATES
TO PROVIDE FOR THEIR OWN NECESSITIES."  P. 209.  ON SUCH ASSURANCES
COULD IT POSSIBLY BE THOUGHT THAT THE STATES WERE SO SUBORDINATE THAT
THEIR ACTIVITIES COULD BE TAXED BY THE FEDERAL GOVERNMENT? 

IN M'CULLOCH V. MARYLAND, 4 WHEAT.  316, THE COURT HELD
UNCONSTITUTIONAL A STATE TAX ON NOTES OF THE BANK OF THE UNITED
STATES.  THE STATEMENT OF CHIEF JUSTICE MARSHALL (PP. 429-430) IS
ADEQUATE TO SUSTAIN THE CASE FOR THE RECIPROCAL IMMUNITY OF THE STATE
AND FEDERAL GOVERNMENTS: 

"IF WE MEASURE THE POWER OF TAXATION RESIDING IN A STATE, BY THE
EXTENT OF SOVEREIGNTY WHICH THE PEOPLE OF A SINGLE STATE POSSESS, AND
CAN CONFER ON ITS GOVERNMENT, WE HAVE AN INTELLIGIBLE STANDARD,
APPLICABLE TO EVERY CASE TO WHICH THE POWER MAY BE APPLIED.  WE HAVE A
PRINCIPLE WHICH LEAVES THE POWER OF TAXING THE PEOPLE AND PROPERTY OF A
STATE UNIMPAIRED; WHICH LEAVES TO A STATE THE COMMAND OF ALL ITS
RESOURCES, AND WHICH PLACES BEYOND ITS REACH, ALL THOSE POWERS WHICH
ARE CONFERRED BY THE PEOPLE OF THE UNITED STATES ON THE GOVERNMENT OF
THE UNION, AND ALL THOSE MEANS WHICH ARE GIVEN FOR THE PURPOSE OF
CARRYING THOSE POWERS INTO EXECUTION.  WE HAVE A PRINCIPLE WHICH IS
SAFE FOR THE STATES, AND SAFE FOR THE UNION.  WE ARE RELIEVED, AS WE
OUGHT TO BE, FROM CLASHING SOVEREIGNTY; FROM INTERFERING POWERS; FROM A
REPUGNANCY BETWEEN A RIGHT IN ONE GOVERNMENT TO PULL DOWN WHAT THERE IS
AN ACKNOWLEDGED RIGHT IN ANOTHER TO BUILD UP; FROM THE INCOMPATIBILITY
OF A RIGHT IN ONE GOVERNMENT TO DESTROY WHAT THERE IS A RIGHT IN
ANOTHER TO PRESERVE.  WE ARE NOT DRIVEN TO THE PERPLEXING INQUIRY, SO
UNFIT FOR THE JUDICIAL DEPARTMENT, WHAT DEGREE OF TAXATION IS THE
LEGITIMATE USE, AND WHAT DEGREE MAY AMOUNT TO THE ABUSE OF THE POWER." 

                              IV 

THOSE WHO AGREED WITH SOUTH CAROLINA V. UNITED STATES HAD THE FEAR
THAT AN EXPANDING PROGRAM OF STATE ACTIVITY WOULD DRY UP SOURCES OF
FEDERAL REVENUES AND THUS CRIPPLE THE NATIONAL GOVERNMENT.  199 U.S.
PP. 454-455.  THAT WAS IN 1905.  FN4  THAT FEAR IS EXPRESSED AGAIN
TODAY WHEN WE HAVE THE FEDERAL INCOME TAX, FROM WHICH EMPLOYEES OF THE
STATES MAY NOT CLAIM EXEMPTION ON CONSTITUTIONAL GROUNDS.  HELVERING V.
GERHARDT, SUPRA.  THE FEAR OF DEPRIVING THE NATIONAL GOVERNMENT OF
REVENUE IF THE TAX IMMUNITY OF THE STATES IS SUSTAINED HAS NO MORE
PLACE IN THE PRESENT DECISION THAN THE SPECTRE OF SOCIALISM, THE FEAR
OF WHICH, SAID HOLMES, "WAS TRANSLATED INTO DOCTRINES THAT HAD NO
PROPER PLACE IN THE CONSTITUTION OR THE COMMON LAW."  FN5 

THERE IS NO SHOWING WHATSOEVER THAT AN EXPANDING FIELD OF STATE
ACTIVITY EVEN FAINTLY PROMISES TO CRIPPLE THE FEDERAL GOVERNMENT IN ITS
SEARCH FOR NEEDED REVENUES.  IF THE TRUTH WERE KNOWN, I SUSPECT IT
WOULD SHOW THAT THE ACTIVITY OF THE STATES IN THE FIELDS OF HOUSING,
PUBLIC POWER AND THE LIKE HAVE INCREASED THE LEVEL OF INCOME OF THE
PEOPLE AND HAVE RAISED THE STANDARDS OF MARGINAL OR SUB-MARGINAL
GROUPS.  SUCH CONDITIONS AFFECT FAVORABLY, NOT ADVERSELY, THE TAX
POTENTIAL OF THE FEDERAL GOVERNMENT. 

FN1  CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES (1908), PP. 183
184. 

FN2  AS STATED IN UNITED STATES V. CALIFORNIA, 297 U.S. 175, 184,
185, THE IMMUNITY OF STATE INSTRUMENTALITIES FROM FEDERAL TAXATION "IS
IMPLIED FROM THE NATURE OF OUR FEDERAL SYSTEM AND THE RELATIONSHIP
WITHIN IT OF STATE AND NATIONAL GOVERNMENTS, AND IS EQUALLY A
RESTRICTION ON TAXATION BY EITHER OF THE INSTRUMENTALITIES OF THE
OTHER."  IT WENT ON TO SAY IN JUSTIFICATION OF MAKING STATE ACTIVITIES
SUBJECT TO THE EXERCISE BY CONGRESS OF THE COMMERCE POWER, "BUT THERE
IS NO SUCH LIMITATION UPON THE PLENARY POWER TO REGULATE COMMERCE.  THE
STATE CAN NO MORE DENY THE POWER IF ITS EXERCISE HAS BEEN AUTHORIZED BY
CONGRESS THAN CAN AN INDIVIDUAL." 

FN3  THAT FACT DISTINGUISHES THOSE CASES WHERE A CITIZEN SEEKS TAX
IMMUNITY BECAUSE HIS INCOME WAS DERIVED FROM A STATE OR THE FEDERAL
GOVERNMENT.  RECOGNITION OF SUCH A CLAIM WOULD CREATE A "PRIVILEGED
CLASS OF TAXPAYERS" (HELVERING V. GERHARDT, SUPRA, P. 416) AND EXTEND
THE TAX IMMUNITY OF THE STATES OR THE FEDERAL GOVERNMENT TO PRIVATE
CITIZENS.  IT WAS IN PROTEST TO THE RECOGNITION OF SUCH A DERIVATIVE
IMMUNITY THAT MR. JUSTICE BRADLEY DISSENTED IN COLLECTOR V. DAY, 11
WALL.  113, 128, WHERE THE COURT HELD UNCONSTITUTIONAL A FEDERAL TAX ON
THE SALARY OF A JUDICIAL OFFICER OF A STATE.  AS MR. JUSTICE BRADLEY
STATED, "NO MAN CEASES TO BE A CITIZEN OF THE UNITED STATES BY BEING AN
OFFICER UNDER THE STATE GOVERNMENT."  11 WALL.  P. 128.  AND SEE GRAVES
V. O'KEEFE, 306 U.S. 466, HOLDING THAT SALARIES OF FEDERAL EMPLOYEES
MAY BE CONSTITUTIONALLY INCLUDED IN A NON-DISCRIMINATORY STATE INCOME
TAX. 

FN4  AS THE SOLICITOR GENERAL OF NEW YORK POINTS OUT, IN THE YEAR
WHEN SOUTH CAROLINA V. UNITED STATES WAS DECIDED OVER ONE-FOURTH OF THE
ENTIRE ANNUAL INCOME OF THE FEDERAL GOVERNMENT WAS DERIVED FROM TAXES
ON SPIRITS AND FERMENTED LIQUORS.  SEE ANNUAL REPORT, SECRETARY OF THE
TREASURY (1905), PP. 7, 26. 

FN5  HOLMES, COLLECTED LEGAL PAPERS (1921) P. 295. 
..END :

















MARKHAM V. ALLEN, 326 U.S. 490 


NO. 60.  ARGUED DECEMBER 5, 1945.  - DECIDED JANUARY 7, 1946.  - 147
F.2D 136, REVERSED. 


1.  A FEDERAL DISTRICT COURT HAS JURISDICTION OF A SUIT BY THE ALIEN
PROPERTY CUSTODIAN AGAINST AN EXECUTOR AND RESIDENT HEIRS TO DETERMINE
THE CUSTODIAN'S ASSERTED RIGHT TO SHARE IN THE DECEDENT'S ESTATE WHICH
IS IN COURSE OF PROBATE ADMINISTRATION IN A STATE COURT.  PP. 491,
496. 

2.  WHILE A FEDERAL COURT HAS NO JURISDICTION TO PROBATE A WILL OR
ADMINISTER AN ESTATE, IT DOES HAVE JURISDICTION TO ENTERTAIN SUITS TO
ESTABLISH CLAIMS AGAINST A DECEDENT'S ESTATE, SO LONG AS IT DOES NOT
INTERFERE WITH THE PROBATE PROCEEDINGS OR ASSUME GENERAL JURISDICTION
OF THE PROBATE OR CONTROL OF THE PROPERTY IN THE CUSTODY OF THE STATE
COURT.  P. 494. 

3.  WHILE A FEDERAL COURT MAY NOT DISTURB OR AFFECT THE POSSESSION OF
PROPERTY IN THE CUSTODY OF A STATE COURT, IT MAY ADJUDICATE RIGHTS IN
SUCH PROPERTY WHEN THE FINAL JUDGMENT DOES NOT INTERFERE WITH THE STATE
COURT'S POSSESSION SAVE TO THE EXTENT THAT THE STATE COURT IS BOUND BY
THE JUDGMENT TO RECOGNIZE THE RIGHT ADJUDICATED BY THE FEDERAL COURT. 
P. 494. 

4.  WHERE THE EFFECT OF A JUDGMENT OF A FEDERAL COURT IS TO LEAVE
UNDISTURBED THE ORDERLY ADMINISTRATION OF A DECEDENT'S ESTATE IN A
STATE PROBATE COURT BUT TO DECREE A RIGHT IN PROPERTY TO BE DISTRIBUTED
AFTER ADMINISTRATION, THIS IS NOT AN EXERCISE OF PROBATE JURISDICTION
OR AN INTERFERENCE WITH PROPERTY IN THE POSSESSION OR CUSTODY OF A
STATE COURT.  P. 495. 

5.  A FEDERAL DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION IN
ENTERTAINING A SUIT BY THE ALIEN PROPERTY CUSTODIAN TO DETERMINE HIS
RIGHT TO SHARE IN A DECEDENT'S ESTATE IN COURSE OF PROBATE
ADMINISTRATION IN A STATE COURT, EVEN THOUGH THE SUIT INVOLVED ISSUES
OF STATE LAW; BECAUSE SEC. 17 OF THE TRADING WITH THE ENEMY ACT
SPECIALLY CONFERS ON THE FEDERAL COURTS JURISDICTION TO ENTER ALL SUCH
ORDERS AND DECREES AS MAY BE NECESSARY AND PROPER TO ENFORCE THE
PROVISIONS OF THE ACT AND THIS INDICATES THAT CONGRESS HAS ADOPTED THE
POLICY OF PERMITTING THE CUSTODIAN TO PROCEED IN THE FEDERAL COURTS TO
ENFORCE HIS RIGHTS, WHETHER THEY DEPEND ON STATE OR FEDERAL LAW.  P.
495. 

MARKHAM, ALIEN PROPERTY CUSTODIAN, V. ALLEN ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 325 U.S. 846, TO REVIEW REVERSAL OF A JUDGMENT OF A
DISTRICT COURT (52 F.SUPP.  850) ALLOWING A CLAIM OF THE ALIEN PROPERTY
CUSTODIAN AGAINST A DECEDENT'S ESTATE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER A DISTRICT COURT OF THE UNITED STATES HAS
JURISDICTION OF A SUIT BROUGHT BY THE ALIEN PROPERTY CUSTODIAN AGAINST
AN EXECUTOR AND RESIDENT HEIRS TO DETERMINE THE CUSTODIAN'S ASSERTED
RIGHT TO SHARE IN DECEDENT'S ESTATE WHICH IS IN COURSE OF PROBATE
ADMINISTRATION IN A STATE COURT. 

ON JANUARY 23, 1943, PETITIONER, THE ALIEN PROPERTY CUSTODIAN, ACTING
UNDER SEC. 5(B)(1)(B) OF THE TRADING WITH THE ENEMY ACT, 55 STAT. 839,
50 U.S.C. APP., SUPP. IV, SEC. 616, AND EXECUTIVE ORDER NO. 9095, AS
AMENDED BY EXECUTIVE ORDER 9193, 3 CODE FED. REG. (CUM. SUPP.) 1174,
ISSUED VESTING ORDER NO. 762, BY WHICH HE PURPORTED TO VEST IN HIMSELF
AS CUSTODIAN ALL RIGHT, TITLE AND INTEREST OF GERMAN LEGATEES IN THE
ESTATE OF ALVINA WAGNER, WHO DIED TESTATE, A RESIDENT OF CALIFORNIA,
WHOSE WILL WAS ADMITTED TO PROBATE AND WHOSE ESTATE IS BEING
ADMINISTERED IN THE SUPERIOR COURT OF CALIFORNIA.  PREVIOUSLY, ON
DECEMBER 30, 1942, SIX OF THE OTHER HEIRS-AT-LAW OF DECEDENT, RESIDING
IN THE UNITED STATES, FILED A PETITION IN THE SUPERIOR COURT OF
CALIFORNIA FOR DETERMINATION OF HEIRSHIP, ASSERTING THAT UNDER THE
PROVISIONS OF CALIFORNIA STATUTES, 1941, CHAP. 895, SEC. 1* , THE
GERMAN LEGATEES WERE INELIGIBLE AS BENEFICIARIES, AND THAT THE AMERICAN
HEIRS WERE THEREFORE ENTITLED TO INHERIT DECEDENT'S ESTATE.  THIS
PROCEEDING IS STILL PENDING. 

*THIS STATUTE PURPORTS TO LIMIT INHERITANCE BY NON-RESIDENT ALIENS TO
NATIONALS OF COUNTRIES WHICH GRANT RECIPROCAL RIGHTS OF INHERITANCE TO
AMERICAN CITIZENS. 

ON APRIL 6, 1943, THE CUSTODIAN BROUGHT THE PRESENT SUIT IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AGAINST THE
EXECUTOR AND THE SIX CALIFORNIA CLAIMANTS, SEEKING A JUDGMENT
DETERMINING THAT THE RESIDENT CLAIMANTS HAVE NO INTEREST IN THE ESTATE,
AND THAT THE CUSTODIAN, BY VIRTUE OF HIS VESTING ORDER, IS ENTITLED TO
THE ENTIRE NET ESTATE OF THE DECEDENT AFTER PAYMENT OF EXPENSES OF
ADMINISTRATION, DEBTS, AND TAXES, AND IS THE OWNER OF SPECIFIED REAL
ESTATE OF DECEDENT PASSING UNDER THE WILL.  THE COMPLAINT PRAYED THAT
THE EXECUTOR BE ORDERED TO PAY THE ENTIRE NET ESTATE TO THE CUSTODIAN
UPON THE ALLOWANCE BY THE STATE COURT OF THE EXECUTOR'S FINAL ACCOUNT. 
ON MOTION OF RESPONDENTS TO STRIKE THE COMPLAINT, AND ON PETITIONER'S
MOTION FOR JUDGMENT ON THE PLEADINGS, THE DISTRICT COURT GAVE JUDGMENT
FOR PETITIONER, 52 F.SUPP.  850.  THE COURT HELD THAT IT HAD
JURISDICTION TO ENFORCE THE VESTING ORDER OF PETITIONER; THAT ITS
JURISDICTION IS DERIVED FROM THE CONSTITUTION AND LAWS OF THE UNITED
STATES AND IS NOT SUBJECT TO RESTRICTION OR OUSTER BY STATE
LEGISLATION; AND THAT CALIFORNIA STATUTES, 1941, CHAP. 895, SEC. 1, IS
INVALID.  THE JUDGMENT DECLARED THAT PETITIONER HAD ACQUIRED THE
INTERESTS OF THE GERMAN NATIONALS IN THE ESTATE OF DECEDENT; THAT NONE
OF RESPONDENTS HAVE ANY RIGHT, TITLE OR INTEREST IN THE ESTATE; AND
THAT PETITIONER IS ENTITLED TO RECEIVE THE NET ESTATE IN DISTRIBUTION
AFTER PAYMENT OF EXPENSES OF ADMINISTRATION, DEBTS AND TAXES. 

WITHOUT PASSING UPON THE MERITS, THE COURT OF APPEALS FOR THE NINTH
CIRCUIT REVERSED AND ORDERED THE CAUSE DISMISSED, UPON THE GROUND THAT
THE DISTRICT COURT WAS WITHOUT JURISDICTION OF THE SUBJECT MATTER OF
THE ACTION.  147 F.2D 136.  THE COURT THOUGHT THAT SINCE "THE MATTER IS
WITHIN PROBATE JURISDICTION AND THAT COURT IS IN POSSESSION OF THE
PROPERTY, ITS RIGHT TO PROCEED TO DETERMINE HEIRSHIP CANNOT BE
INTERFERED WITH BY THE FEDERAL COURT." 

IT IS NOT DENIED THAT THE PRESENT SUIT IS A SUIT "OF A CIVIL NATURE
...  IN EQUITY," BROUGHT BY AN OFFICER OF THE UNITED STATES, AUTHORIZED
TO SUE, OF WHICH DISTRICT COURTS ARE GIVEN JURISDICTION BY SEC. 24(1),
28 U.S.C. SEC. 41(1), OF THE JUDICIAL CODE.  BUT RESPONDENTS ARGUE, AS
THE CIRCUIT COURT OF APPEALS HELD, THAT AS THE DISTRICT COURTS OF THE
UNITED STATES ARE WITHOUT JURISDICTION OVER PROBATE MATTERS, SEE
BRODERICK'S WILL, 21 WALL.  503, 517; BYERS V. MCAULEY, 149 U.S. 608,
615, WHICH THE COURT OF APPEALS THOUGHT ARE NOT "CASES OR CONTROVERSIES
WITHIN THE MEANING OF ART. III OF THE CONSTITUTION," AND SINCE THE
PRESENT SUIT TO DETERMINE HEIRSHIP OF PROPERTY BEING ADMINISTERED IN A
STATE PROBATE COURT IS AN EXERCISE OF PROBATE JURISDICTION, THE
DISTRICT COURT IS WITHOUT JURISDICTION. 

IT IS TRUE THAT A FEDERAL COURT HAS NO JURISDICTION TO PROBATE A WILL
OR ADMINISTER AN ESTATE, THE REASON BEING THAT THE EQUITY JURISDICTION
CONFERRED BY THE JUDICIARY ACT OF 1789 AND SEC. 24(1) OF THE JUDICIAL
CODE, WHICH IS THAT OF THE ENGLISH COURT OF CHANCERY IN 1789, DID NOT
EXTEND TO PROBATE MATTERS.  KERRICH V. BRANSBY, 7 BROWN P.C. 437;
BARNESLEY V. POWEL, 1 VES.  SEN.  284; ALLEN V. MACPHERSON, 1 PHILLIPS
133, 1 HOUSE OF LORDS CASES 191; BRODERICK'S WILL, SUPRA; FARRELL V.
O'BRIEN, 199 U.S. 89; SUTTON V. ENGLISH, 246 U.S. 199, 205.  BUT IT HAS
BEEN ESTABLISHED BY A LONG SERIES OF DECISIONS OF THIS COURT THAT
FEDERAL COURTS OF EQUITY HAVE JURISDICTION TO ENTERTAIN SUITS "IN FAVOR
OF CREDITORS, LEGATEES AND HEIRS" AND OTHER CLAIMANTS AGAINST A
DECEDENT'S ESTATE "TO ESTABLISH THEIR CLAIMS" SO LONG AS THE FEDERAL
COURT DOES NOT INTERFERE WITH THE PROBATE PROCEEDINGS OR ASSUME GENERAL
JURISDICTION OF THE PROBATE OR CONTROL OF THE PROPERTY IN THE CUSTODY
OF THE STATE COURT.  WATERMAN V. CANAL-LOUISIANA BANK CO., 215 U.S. 33,
43, AND CASES CITED.  SEE SUTTON V. ENGLISH, SUPRA, 205; UNITED STATES
V. BANK OF NEW YORK CO., 296 U.S. 463, 477; COMMONWEALTH TRUST CO. V.
BRADFORD, 297 U.S. 613, 619; UNITED STATES V. KLEIN, 303 U.S. 276;
PRINCESS LIDA V. THOMPSON, 305 U.S. 456, 466. 

SIMILARLY WHILE A FEDERAL COURT MAY NOT EXERCISE ITS JURISDICTION TO
DISTURB OR AFFECT THE POSSESSION OF PROPERTY IN THE CUSTODY OF A STATE
COURT, PENN CO. V. PENNSYLVANIA, 294 U.S. 189, 195-196 AND CASES CITED;
UNITED STATES V. BANK OF NEW YORK CO., SUPRA, 477-478 AND CASES CITED,
IT MAY EXERCISE ITS JURISDICTION TO ADJUDICATE RIGHTS IN SUCH PROPERTY
WHERE THE FINAL JUDGMENT DOES NOT UNDERTAKE TO INTERFERE WITH THE STATE
COURT'S POSSESSION SAVE TO THE EXTENT THAT THE STATE COURT IS BOUND BY
THE JUDGMENT TO RECOGNIZE THE RIGHT ADJUDICATED BY THE FEDERAL COURT. 
COMMONWEALTH TRUST CO. V. BRADFORD, SUPRA, 619; UNITED STATES V. KLEIN,
SUPRA, 281 AND CASES CITED. 

ALTHOUGH IN THIS CASE PETITIONER SOUGHT A JUDGMENT IN THE DISTRICT
COURT ORDERING DEFENDANT EXECUTOR TO PAY OVER THE ENTIRE NET ESTATE TO
THE PETITIONER UPON AN ALLOWANCE OF THE EXECUTOR'S FINAL ACCOUNT, THE
JUDGMENT DECLARED ONLY THAT PETITIONER "IS ENTITLED TO RECEIVE THE NET
ESTATE OF THE LATE ALVINA WAGNER IN DISTRIBUTION, AFTER THE PAYMENT OF
EXPENSES OF ADMINISTRATION, DEBTS, AND TAXES."  THE EFFECT OF THE
JUDGMENT WAS TO LEAVE UNDISTURBED THE ORDERLY ADMINISTRATION OF
DECEDENT'S ESTATE IN THE STATE PROBATE COURT AND TO DECREE PETITIONER'S
RIGHT IN THE PROPERTY TO BE DISTRIBUTED AFTER ITS ADMINISTRATION. 
THIS, AS OUR AUTHORITIES DEMONSTRATE, IS NOT AN EXERCISE OF PROBATE
JURISDICTION OR AN INTERFERENCE WITH PROPERTY IN THE POSSESSION OR
CUSTODY OF A STATE COURT. 

THERE REMAINS THE QUESTION WHETHER THE DISTRICT COURT HAVING
JURISDICTION SHOULD, IN THE EXERCISE OF ITS DISCRETION, HAVE DECLINED
TO ENTERTAIN THE SUIT WHICH INVOLVES ISSUES OF STATE LAW AND HAVE
REMITTED THE PETITIONER TO HIS REMEDY IN THE STATE PROBATE PROCEEDING. 
SEE THOMPSON V. MAGNOLIA CO., 309 U.S. 478, 483; RAILROAD COMMISSION V.
PULLMAN CO., 312 U.S. 496; CHICAGO V. FIELDCREST DAIRIES, 316 U.S. 168;
COMPARE PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, 182-186; GORDON V.
OMINSKY, 294 U.S. 186; GORDON V. WASHINGTON, 295 U.S. 30, 39; UNITED
STATES V. BANK OF NEW YORK CO., SUPRA, 480.  THE MERE FACT THAT THE
DISTRICT COURT, IN THE EXERCISE OF THE JURISDICTION WHICH CONGRESS HAS
CONFERRED UPON IT, IS REQUIRED TO INTERPRET STATE LAW IS NOT IN ITSELF
A SUFFICIENT REASON FOR WITHHOLDING RELIEF TO PETITIONER.  MEREDITH V.
WINTER HAVEN, 320 U.S. 228.  THIS IS THE MORE SO IN THIS CASE BECAUSE
SEC. 17 OF THE TRADING WITH THE ENEMY ACT, 50 U.S.C. APP. SEC. 17,
SPECIALLY CONFERS ON THE DISTRICT COURT, INDEPENDENTLY OF THE STATUTES
GOVERNING GENERALLY JURISDICTION OF FEDERAL COURTS, JURISDICTION TO
ENTER "ALL SUCH ORDERS AND DECREES  ...  AS MAY BE NECESSARY AND PROPER
IN THE PREMISES TO ENFORCE THE PROVISIONS" OF THE ACT.  ALTHOUGH THE
DISTRICT COURT HAS JURISDICTION OF THE PRESENT CASE UNDER SEC. 24(1) OF
THE JUDICIAL CODE, IRRESPECTIVE OF SEC. 17, THE LATTER SECTION PLAINLY
INDICATES THAT CONGRESS HAS ADOPTED THE POLICY OF PERMITTING THE
CUSTODIAN TO PROCEED IN THE DISTRICT COURTS TO ENFORCE HIS RIGHTS UNDER
THE ACT, WHETHER THEY DEPEND ON STATE OR FEDERAL LAW.  THE CAUSE WAS
THEREFORE WITHIN THE JURISDICTION OF THE DISTRICT COURT, WHICH COULD
APPROPRIATELY PROCEED WITH THE CASE, AND THE COURT OF APPEALS
ERRONEOUSLY ORDERED ITS DISMISSAL. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE CIRCUIT COURT
OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS OPINION. 
REVERSED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE IS OF THE OPINION THAT THE CAUSE SHOULD BE
REMANDED TO THE DISTRICT COURT AND JURISDICTION SHOULD BE RETAINED BY
IT PENDING THE STATE COURT'S DECISION AS TO THE PERSONS ENTITLED TO
RECEIVE THE NET ESTATE. 
..END :




















N.Y. EX REL. RAY V. MARTIN, 326 U.S. 496 


NO. 158.  ARGUED DECEMBER 13, 1945.  - DECIDED JANUARY 7, 1946.  - 294
N.Y. 61, 60 N.E.2D 541, AFFIRMED. 


1.  A STATE COURT OF NEW YORK HAS JURISDICTION TO TRY A NON-INDIAN FOR
THE MURDER OF ANOTHER NON-INDIAN COMMITTED ON THE ALLEGANY RESERVATION
OF THE SENECA INDIANS WITHIN THAT STATE.  UNITED STATES V. MCBRATNEY,
104 U.S. 621, FOLLOWED.  P. 498. 

2.  SECTION 2145 OF THE REVISED STATUTES DOES NOT OPERATE TO DEPRIVE
STATES OF JURISDICTION OF CRIMES COMMITTED ON INDIAN RESERVATIONS BY
ONE NON-INDIAN AGAINST ANOTHER.  P. 499. 

3.  EXERCISE OF JURISDICTION BY A STATE COURT OF NEW YORK OVER CRIMES
INVOLVING ONLY NON-INDIANS AND COMMITTED ON THE ALLEGANY RESERVATION OF
THE SENECA INDIANS WITHIN THAT STATE DOES NOT VIOLATE THE TREATY OF
1794.  P. 500. 

NEW YORK EX REL. RAY V. MARTIN, WARDEN. 

CERTIORARI TO THE COUNTY COURT OF WYOMING COUNTY, NEW YORK. 

CERTIORARI, POST, P. 685, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A WRIT OF HABEAS CORPUS.  SEE 268 APP. DIV. 218, 52 N.Y.S.2D
496; 181 MISC. 925, 47 N.Y.S.2D 883. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN UNITED STATES V. MCBRATNEY, 104 U.S. 621, THIS COURT HELD THAT THE
STATE COURTS OF COLORADO, NOT THE FEDERAL COURTS, HAD JURISDICTION TO
PROSECUTE A MURDER OF ONE NON-INDIAN BY ANOTHER COMMITTED ON AN INDIAN
RESERVATION LOCATED WITHIN THAT STATE.  THE HOLDING IN THAT CASE WAS
THAT THE ACT OF CONGRESS ADMITTING COLORADO INTO THE UNION OVERRULED
ALL PRIOR INCONSISTENT STATUTES AND TREATIES AND PLACED IT "UPON AN
EQUAL FOOTING WITH THE ORIGINAL STATES  ..."; THAT THIS MEANT THAT
COLORADO HAD "CRIMINAL JURISDICTION OVER ITS OWN CITIZENS AND OTHER
WHITE PERSONS THROUGHOUT THE WHOLE OF THE TERRITORY WITHIN ITS LIMITS,
INCLUDING THE UTE RESERVATION"; AND THAT CONSEQUENTLY, THE UNITED
STATES NO LONGER HAD "SOLE AND EXCLUSIVE JURISDICTION" OVER THE
RESERVATION, EXCEPT TO THE EXTENT NECESSARY TO CARRY OUT SUCH TREATY
PROVISIONS WHICH REMAINED IN FORCE.  THAT CASE HAS SINCE BEEN FOLLOWED
BY THIS COURT  FN1  AND ITS HOLDING HAS NOT BEEN MODIFIED BY ANY ACT OF
CONGRESS.  THE QUESTION THIS CASE PRESENTS IS WHETHER NEW YORK, WHICH
IS ONE OF THE ORIGINAL STATES, HAS JURISDICTION TO PUNISH A MURDER OF
ONE NON-INDIAN COMMITTED BY ANOTHER NON-INDIAN UPON THE ALLEGANY
RESERVATION OF THE SENECA INDIANS LOCATED WITHIN THE STATE OF NEW
YORK. 

IN 1939, THE PETITIONER WAS SENTENCED TO LIFE IMPRISONMENT IN A NEW
YORK STATE COURT FOR THE MURDER OF A MAN IN THE CITY OF SALAMANCA,
WHICH IS WITHIN THE ALLEGANY RESERVATION BUT HAS ONLY 8 INDIAN FAMILIES
LIVING AMONG ITS 9,000 INHABITANTS.  HE LATER BROUGHT THIS HABEAS
CORPUS PROCEEDING IN A COUNTY COURT OF THE STATE.  FN2  HE ALLEGED THAT
SINCE THE INDIAN RESERVATION WAS UNDER THE EXCLUSIVE JURISDICTION OF
THE UNITED STATES, THE STATE COURTS LACKED JURISDICTION TO TRY AND
CONVICT HIM.  THE COUNTY COURT OF WYOMING COUNTY HEARD THE CASE AND
ORDERED THE WRIT DISMISSED.  181 MISC. 925, 47 N.Y.S.2D 883.  BOTH THE
APPELLATE DIVISION OF THE SUPREME COURT, 268 APP. DIV. 218, 52 N.Y.S.2D
496, AND THE COURT OF APPEALS, 294 N.Y. 61, 60 N.E.2D 541, AFFIRMED THE
DISMISSAL.  FN3  WE GRANTED CERTIORARI BECAUSE OF THE FEDERAL QUESTIONS
RAISED. 

WE THINK THE RULE ANNOUNCED IN THE MCBRATNEY CASE CONTROLLING AND
THAT THE NEW YORK COURT THEREFORE PROPERLY EXERCISED ITS JURISDICTION. 
FOR THAT CASE AND OTHERS WHICH FOLLOWED IT ALL HELD THAT IN THE ABSENCE
OF A LIMITING TREATY OBLIGATION OR CONGRESSIONAL ENACTMENT EACH STATE
HAD A RIGHT TO EXERCISE JURISDICTION OVER INDIAN RESERVATIONS WITHIN
ITS BOUNDARIES.  FN4  PETITIONER CLAIMS THAT THE MCBRATNEY CASE DIFFERS
FROM THIS PROCEEDING IN SEVERAL RESPECTS.  FIRST, HE CONTENDS THAT
COLORADO COULD EXERCISE GREATER POWERS OVER ITS INDIAN RESERVATIONS
THAN NEW YORK CAN BY VIRTUE OF THE ENABLING ACT WHICH ADMITTED COLORADO
INTO THE UNION, A SIMILAR ENACTMENT BEING LACKING HERE SINCE NEW YORK
IS ONE OF THE ORIGINAL STATES.  AS WE HAVE SEEN, THE COLORADO ENABLING
ACT WAS HELD IN THE MCBRATNEY CASE TO PUT COLORADO "UPON AN EQUAL
FOOTING WITH THE ORIGINAL STATES," AND TO REPEAL EARLIER LEGISLATION
AND TREATIES INCONSISTENT WITH THE ENABLING ACT.  THE FACT THAT
COLORADO WAS PUT ON AN EQUAL FOOTING WITH THE ORIGINAL STATES OBVIOUSLY
DID NOT GIVE IT ANY GREATER POWER THAN NEW YORK.  AND NO GREATER POWER
CAN BE INFERRED FROM THE REPEALING FUNCTION OF THE ENABLING ACT, SINCE,
AS WE SHALL POINT OUT, THE STATUTES AND TREATIES WHICH PETITIONER
CLAIMS DEPRIVE NEW YORK OF JURISDICTION DO NOT IN FACT DO SO. 

THIS BRINGS US TO PETITIONER'S FURTHER CONTENTION THAT CERTAIN
FEDERAL STATUTES SPECIFICALLY GRANT THE UNITED STATES EXCLUSIVE
JURISDICTION OVER THE SENECA RESERVATION.  HE POINTS OUT THAT THE LAWS
OF THE UNITED STATES MAKE MURDER A CRIME "IF COMMITTED IN ANY PLACE
WITHIN THE SOLE AND EXCLUSIVE JURISDICTION OF THE UNITED STATES  ...";
18 U.S.C. 452; THAT SEC. 2145 OF THE REVISED STATUTES, 25 U.S.C. 217,
MAKES THIS MURDER STATUTE APPLICABLE TO "INDIAN COUNTRY"; AND CONTENDS
THAT THE SENECA RESERVATION IS INDIAN COUNTRY, AND THAT CONSEQUENTLY
NEW YORK HAS NO JURISDICTION TO PUNISH A MURDER COMMITTED ON THAT
RESERVATION.  THE CASES FOLLOWING THE MCBRATNEY CASE ADEQUATELY ANSWER
PETITIONER'S CONTENTIONS CONCERNING SEC. 2145, EVEN IF WE ASSUME, WHAT
WE NEED NOT DECIDE, THAT THE SENECA RESERVATION IS INDIAN COUNTRY
WITHIN THE MEANING OF THE STATUTE.  WHILE SEC. 2145 OF THE REVISED
STATUTES HAS BEEN HELD APPLICABLE IN TERRITORIES TO CRIMES BETWEEN
WHITES AND WHITES WHICH DO NOT AFFECT INDIANS,  FN5  THE MCBRATNEY LINE
OF DECISIONS STANDS FOR THE PROPOSITION THAT STATES, BY VIRTUE OF THEIR
STATEHOOD, HAVE JURISDICTION OVER SUCH CRIMES NOTWITHSTANDING SEC.
2145.  FN6  SEE ALSO NEW YORK V. DIBBLE, 21 HOW.  366. 

PETITIONER FURTHER CONTENDS THAT THE MCBRATNEY RULE IS NOT APPLICABLE
HERE BECAUSE EXERCISE OF STATE JURISDICTION OVER NON-INDIANS AT
SALAMANCA WOULD VIOLATE THE TREATY OF 1794, 7 STAT. 44.  WE CAN FIND NO
LANGUAGE IN THAT TREATY THAT LENDS ITSELF TO SUCH INTERPRETATION.  THE
TREATY WAS ONE OF PEACE AND FRIENDSHIP BETWEEN THE UNITED STATES AND
THE INDIANS.  IT PROVIDED AGAINST PRIVATE REVENGE OR RETALIATION ON
ACCOUNT OF INJURIES DONE BY INDIVIDUALS ON EITHER SIDE.  SUCH INJURIES
WERE TO BE REPORTED BY EACH NATION TO THE OTHER WITH A VIEW OF HAVING
THE NATION TO WHICH THE INDIVIDUAL OFFENDER BELONGED TAKE "SUCH PRUDENT
MEASURES  ...  AS SHALL BE NECESSARY TO PRESERVE ...  PEACE AND
FRIENDSHIP UNBROKEN."  THIS PROCEDURE WAS TO BE FOLLOWED UNTIL CONGRESS
MADE "OTHER EQUITABLE PROVISION FOR THE PURPOSE."  THIS LATTER
LANGUAGE, UPON WHICH THE PETITIONER MOST STRONGLY RELIES AS IMPOSING A
DUTY UPON THE UNITED STATES TO EXERCISE JURISDICTION OVER THE WHOLE
RESERVATION TO THE EXCLUSION OF THE STATE, EVEN AS TO OFFENSES
COMMITTED BY WHITES AGAINST WHITES, CANNOT PROPERLY BE INTERPRETED AS
THE PETITIONER ASKS.  THE ENTIRE EMPHASIS IN TREATIES AND CONGRESSIONAL
ENACTMENTS DEALING WITH INDIAN AFFAIRS HAS ALWAYS BEEN FOCUSED UPON THE
TREATMENT OF THE INDIANS THEMSELVES AND THEIR PROPERTY.  GENERALLY NO
EMPHASIS HAS BEEN PLACED ON WHETHER STATE OR UNITED STATES COURTS
SHOULD TRY WHITE OFFENDERS FOR CONDUCT WHICH HAPPENED TO TAKE PLACE
UPON AN INDIAN RESERVATION, BUT WHICH DID NOT DIRECTLY AFFECT THE
INDIANS.  NEITHER THE 1794 TREATY NOR ANY OTHER REQUIRES A HOLDING THAT
OFFENSES BY NON-INDIANS AGAINST NON-INDIANS DISTURBING THE PEACE AND
ORDER OF SALAMANCA ARE BEYOND NEW YORK'S POWER TO PUNISH.  AFFIRMED. 

FN1  DRAPER V. UNITED STATES, 164 U.S. 240.  SEE ALSO UNITED STATES
V. RAMSEY, 271 U.S. 467, 469; DONNELLY V. UNITED STATES, 228 U.S. 243,
271; UNITED STATES V. KAGAMA, 118 U.S. 375, 383. 

FN2  A PREVIOUS PETITION IN THE FEDERAL COURTS HAD BEEN DENIED
BECAUSE RELIEF HAD NOT FIRST BEEN SOUGHT IN THE NEW YORK STATE COURTS. 
54 F.SUPP.  218; 141 F.2D 300. 

FN3  THE NEW YORK COURT OF APPEALS HELD, AND THE STATE URGES HERE,
THAT THE STATE COURT HAD JURISDICTION BY VIRTUE OF SEC. 7 OF THE ACT OF
CONGRESS PASSED IN 1875, 18 STAT. 330, AUTHORIZING CERTAIN PARTS OF THE
ALLEGANY RESERVATION TO BE SURVEYED FOR ESTABLISHMENT OF A NUMBER OF
VILLAGES INCLUDING SALAMANCA.  SECTION 8 PROVIDED AMONG OTHER THINGS
THAT "ALL THE MUNICIPAL LAWS AND REGULATIONS OF SAID STATE (NEW YORK)
MAY EXTEND OVER AND BE ENFORCED WITHIN SAID VILLAGES."  ACTING UNDER
WHAT IT CONCEIVED TO BE THE AUTHORITY GRANTED BY THIS SECTION, NEW YORK
PASSED A LAW, CHAP. 188 OF NEW YORK LAWS OF 1881, EXTENDING ITS
"GENERAL LAW" SO AS TO APPLY TO SALAMANCA.  SINCE WE THINK THE RULE IN
THE MCBRATNEY CASE CONTROLLING, WE FIND IT UNNECESSARY IN THIS CASE TO
PASS ON THE SCOPE AND VALIDITY OF THIS ACT. 

FN4  THIS HOLDING WAS IN HARMONY WITH GENERAL PRINCIPLES GOVERNING
THIS SUBJECT.  SURPLUS TRADING CO. V. COOK, 281 U.S. 647, 651;
HALLOWELL V. UNITED STATES, 221 U.S. 317, 320; UNITED STATES V.
MCGOWAN, 302 U.S. 535, 539. 

FN5  IN RE WILSON, 140 U.S. 575; PICKETT V. UNITED STATES, 216 U.S.
456, 458. 

FN6  IN DONNELLY V. UNITED STATES, SUPRA, 228 U.S. AT P. 270, THIS
COURT POINTED OUT THAT THE PROVISIONS CONTAINED IN SEC. 2145 OF THE
REVISED STATUTES WERE FIRST ENACTED AS SEC. 25 OF THE INDIAN
INTERCOURSE ACT OF JUNE 30, 1834, 4 STAT. 729, 733.  THIS MEANS THAT
THE STATUTE WAS IN EFFECT AT THE TIME OF THE MCBRATNEY DECISION.  YET,
SIGNIFICANTLY, THE COURT DID NOT EVEN FIND IT NECESSARY TO MENTION IT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :

















MARSH V. ALABAMA, 326 U.S. 501 


NO. 114.  ARGUED DECEMBER 6, 1945.  - DECIDED JANUARY 7, 1946.  - 21
SO.2D 558, REVERSED. 


1.  A STATE CAN NOT, CONSISTENTLY WITH THE FREEDOM OF RELIGION AND THE
PRESS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS, IMPOSE
CRIMINAL PUNISHMENT ON A PERSON FOR DISTRIBUTING RELIGIOUS LITERATURE
ON THE SIDEWALK OF A COMPANY-OWNED TOWN CONTRARY TO REGULATIONS OF THE
TOWN'S MANAGEMENT, WHERE THE TOWN AND ITS SHOPPING DISTRICT ARE FREELY
ACCESSIBLE TO AND FREELY USED BY THE PUBLIC IN GENERAL, EVEN THOUGH THE
PUNISHMENT IS ATTEMPTED UNDER A STATE STATUTE MAKING IT A CRIME FOR
ANYONE TO ENTER OR REMAIN ON THE PREMISES OF ANOTHER AFTER HAVING BEEN
WARNED NOT TO DO SO.  PP. 502, 505. 

2.  WHETHER A CORPORATION OR A MUNICIPALITY OWNS OR POSSESSES A TOWN,
THE PUBLIC IN EITHER CASE HAS AN IDENTICAL INTEREST IN THE FUNCTIONING
OF THE COMMUNITY IN SUCH MANNER THAT THE CHANNELS OF COMMUNICATION
REMAIN FREE.  P. 507. 

3.  PEOPLE LIVING IN COMPANY-OWNED TOWNS ARE FREE CITIZENS OF THEIR
STATE AND COUNTRY, JUST AS RESIDENTS OF MUNICIPALITIES; AND THERE IS NO
MORE REASON FOR DEPRIVING THEM OF THE LIBERTIES GUARANTEED BY THE FIRST
AND FOURTEENTH AMENDMENTS THAN THERE IS FOR CURTAILING THESE FREEDOMS
WITH RESPECT TO ANY OTHER CITIZEN.  P. 508. 

MARSH V. ALABAMA. 

APPEAL FROM THE COURT OF APPEALS OF ALABAMA. 

APPEAL FROM THE AFFIRMANCE OF A CONVICTION FOR VIOLATION OF A STATE
STATUTE CHALLENGED AS INVALID UNDER THE FEDERAL CONSTITUTION.  THE
STATE SUPREME COURT DENIED CERTIORARI, 246 ALA. 539, 21 SO.2D 564. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE ASKED TO DECIDE WHETHER A STATE, CONSISTENTLY
WITH THE FIRST AND FOURTEENTH AMENDMENTS, CAN IMPOSE CRIMINAL
PUNISHMENT ON A PERSON WHO UNDERTAKES TO DISTRIBUTE RELIGIOUS
LITERATURE ON THE PREMISES OF A COMPANY-OWNED TOWN CONTRARY TO THE
WISHES OF THE TOWN'S MANAGEMENT.  THE TOWN, A SUBURB OF MOBILE,
ALABAMA, KNOWN AS CHICKASAW, IS OWNED BY THE GULF SHIPBUILDING
CORPORATION.  EXCEPT FOR THAT IT HAS ALL THE CHARACTERISTICS OF ANY
OTHER AMERICAN TOWN.  THE PROPERTY CONSISTS OF RESIDENTIAL BUILDINGS,
STREETS, A SYSTEM OF SEWERS, A SEWAGE DISPOSAL PLANT AND A "BUSINESS
BLOCK" ON WHICH BUSINESS PLACES ARE SITUATED.  A DEPUTY OF THE MOBILE
COUNTY SHERIFF, PAID BY THE COMPANY, SERVES AS THE TOWN'S POLICEMAN. 
MERCHANTS AND SERVICE ESTABLISHMENTS HAVE RENTED THE STORES AND
BUSINESS PLACES ON THE BUSINESS BLOCK AND THE UNITED STATES USES ONE OF
THE PLACES AS A POST OFFICE FROM WHICH SIX CARRIERS DELIVER MAIL TO THE
PEOPLE OF CHICKASAW AND THE ADJACENT AREA.  THE TOWN AND THE
SURROUNDING NEIGHBORHOOD, WHICH CAN NOT BE DISTINGUISHED FROM THE GULF
PROPERTY BY ANYONE NOT FAMILIAR WITH THE PROPERTY LINES, ARE THICKLY
SETTLED, AND ACCORDING TO ALL INDICATIONS THE RESIDENTS USE THE
BUSINESS BLOCK AS THEIR REGULAR SHOPPING CENTER.  TO DO SO, THEY NOW,
AS THEY HAVE FOR MANY YEARS, MAKE USE OF A COMPANY-OWNED PAVED STREET
AND SIDEWALK LOCATED ALONGSIDE THE STORE FRONTS IN ORDER TO ENTER AND
LEAVE THE STORES AND THE POST OFFICE.  INTERSECTING COMPANY-OWNED ROADS
AT EACH END OF THE BUSINESS BLOCK LEAD INTO A FOUR-LANE PUBLIC HIGHWAY
WHICH RUNS PARALLEL TO THE BUSINESS BLOCK AT A DISTANCE OF THIRTY
FEET.  THERE IS NOTHING TO STOP HIGHWAY TRAFFIC FROM COMING ONTO THE
BUSINESS BLOCK AND UPON ARRIVAL A TRAVELER MAY MAKE FREE USE OF THE
FACILITIES AVAILABLE THERE.  IN SHORT THE TOWN AND ITS SHOPPING
DISTRICT ARE ACCESSIBLE TO AND FREELY USED BY THE PUBLIC IN GENERAL AND
THERE IS NOTHING TO DISTINGUISH THEM FROM ANY OTHER TOWN AND SHOPPING
CENTER EXCEPT THE FACT THAT THE TITLE TO THE PROPERTY BELONGS TO A
PRIVATE CORPORATION. 

APPELLANT, A JEHOVAH'S WITNESS, CAME ONTO THE SIDEWALK WE HAVE JUST
DESCRIBED, STOOD NEAR THE POST OFFICE AND UNDERTOOK TO DISTRIBUTE
RELIGIOUS LITERATURE.  IN THE STORES THE CORPORATION HAD POSTED A
NOTICE WHICH READ AS FOLLOWS:  "THIS IS PRIVATE PROPERTY, AND WITHOUT
WRITTEN PERMISSION, NO STREET, OR HOUSE VENDOR, AGENT OR SOLICITATION
OF ANY KIND WILL BE PERMITTED."  APPELLANT WAS WARNED THAT SHE COULD
NOT DISTRIBUTE THE LITERATURE WITHOUT A PERMIT AND TOLD THAT NO PERMIT
WOULD BE ISSUED TO HER.  SHE PROTESTED THAT THE COMPANY RULE COULD NOT
BE CONSTITUTIONALLY APPLIED SO AS TO PROHIBIT HER FROM DISTRIBUTING
RELIGIOUS WRITINGS.  WHEN SHE WAS ASKED TO LEAVE THE SIDEWALK AND
CHICKASAW SHE DECLINED.  THE DEPUTY SHERIFF ARRESTED HER AND SHE WAS
CHARGED IN THE STATE COURT WITH VIOLATING TITLE 14, SEC. 426 OF THE
1940 ALABAMA CODE WHICH MAKES IT A CRIME TO ENTER OR REMAIN ON THE
PREMISES OF ANOTHER AFTER HAVING BEEN WARNED NOT TO DO SO.  APPELLANT
CONTENDED THAT TO CONSTRUE THE STATE STATUTE AS APPLICABLE TO HER
ACTIVITIES WOULD ABRIDGE HER RIGHT TO FREEDOM OF PRESS AND RELIGION
CONTRARY TO THE FIRST AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION. 
THIS CONTENTION WAS REJECTED AND SHE WAS CONVICTED.  THE ALABAMA COURT
OF APPEALS AFFIRMED THE CONVICTION, HOLDING THAT THE STATUTE AS APPLIED
WAS CONSTITUTIONAL BECAUSE THE TITLE TO THE SIDEWALK WAS IN THE
CORPORATION AND BECAUSE THE PUBLIC USE OF THE SIDEWALK HAD NOT BEEN
SUCH AS TO GIVE RISE TO A PRESUMPTION UNDER ALABAMA LAW OF ITS
IRREVOCABLE DEDICATION TO THE PUBLIC.  21 SO.2D 558.  THE STATE SUPREME
COURT DENIED CERTIORARI, 246 ALA. 539, 21 SO.2D 564, AND THE CASE IS
HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC.
344(A). 

HAD THE TITLE TO CHICKASAW BELONGED NOT TO A PRIVATE BUT TO A
MUNICIPAL CORPORATION AND HAD APPELLANT BEEN ARRESTED FOR VIOLATING A
MUNICIPAL ORDINANCE RATHER THAN A RULING BY THOSE APPOINTED BY THE
CORPORATION TO MANAGE A COMPANY TOWN IT WOULD HAVE BEEN CLEAR THAT
APPELLANT'S CONVICTION MUST BE REVERSED.  UNDER OUR DECISION IN LOVELL
V. GRIFFIN, 303 U.S. 444 AND OTHERS WHICH HAVE FOLLOWED THAT CASE,  FN1
NEITHER A STATE NOR A MUNICIPALITY CAN COMPLETELY BAR THE DISTRIBUTION
OF LITERATURE CONTAINING RELIGIOUS OR POLITICAL IDEAS ON ITS STREETS,
SIDEWALKS AND PUBLIC PLACES OR MAKE THE RIGHT TO DISTRIBUTE DEPENDENT
ON A FLAT LICENSE TAX OR PERMIT TO BE ISSUED BY AN OFFICIAL WHO COULD
DENY IT AT WILL.  WE HAVE ALSO HELD THAT AN ORDINANCE COMPLETELY
PROHIBITING THE DISSEMINATION OF IDEAS ON THE CITY STREETS CANNOT BE
JUSTIFIED ON THE GROUND THAT THE MUNICIPALITY HOLDS LEGAL TITLE TO
THEM.  JAMISON V. TEXAS, 318 U.S. 413.  AND WE HAVE RECOGNIZED THAT THE
PRESERVATION OF A FREE SOCIETY IS SO FAR DEPENDENT UPON THE RIGHT OF
EACH INDIVIDUAL CITIZEN TO RECEIVE SUCH LITERATURE AS HE HIMSELF MIGHT
DESIRE THAT A MUNICIPALITY COULD NOT, WITHOUT JEOPARDIZING THAT VITAL
INDIVIDUAL FREEDOM, PROHIBIT DOOR TO DOOR DISTRIBUTION OF LITERATURE. 
MARTIN V. STRUTHERS, 319 U.S. 141, 146, 147.  FROM THESE DECISIONS IT
IS CLEAR THAT HAD THE PEOPLE OF CHICKASAW OWNED ALL THE HOMES, AND ALL
THE STORES, AND ALL THE STREETS, AND ALL THE SIDEWALKS, ALL THOSE
OWNERS TOGETHER COULD NOT HAVE SET UP A MUNICIPAL GOVERNMENT WITH
SUFFICIENT POWER TO PASS AN ORDINANCE COMPLETELY BARRING THE
DISTRIBUTION OF RELIGIOUS LITERATURE.  OUR QUESTION THEN NARROWS DOWN
TO THIS:  CAN THOSE PEOPLE WHO LIVE IN OR COME TO CHICKASAW BE DENIED
FREEDOM OF PRESS AND RELIGION SIMPLY BECAUSE A SINGLE COMPANY HAS LEGAL
TITLE TO ALL THE TOWN?  FOR IT IS THE STATE'S CONTENTION THAT THE MERE
FACT THAT ALL THE PROPERTY INTERESTS IN THE TOWN ARE HELD BY A SINGLE
COMPANY IS ENOUGH TO GIVE THAT COMPANY POWER, ENFORCEABLE BY A STATE
STATUTE, TO ABRIDGE THESE FREEDOMS. 

WE DO NOT AGREE THAT THE CORPORATION'S PROPERTY INTERESTS SETTLE THE
QUESTION.  FN2  THE STATE URGES IN EFFECT THAT THE CORPORATION'S RIGHT
TO CONTROL THE INHABITANTS OF CHICKASAW IS COEXTENSIVE WITH THE RIGHT
OF A HOMEOWNER TO REGULATE THE CONDUCT OF HIS GUESTS.  WE CANNOT ACCEPT
THAT CONTENTION.  OWNERSHIP DOES NOT ALWAYS MEAN ABSOLUTE DOMINION. 
THE MORE AN OWNER, FOR HIS ADVANTAGE, OPENS UP HIS PROPERTY FOR USE BY
THE PUBLIC IN GENERAL, THE MORE DO HIS RIGHTS BECOME CIRCUMSCRIBED BY
THE STATUTORY AND CONSTITUTIONAL RIGHTS OF THOSE WHO USE IT.  CF.
REPUBLIC AVIATION CORP. V. LABOR BOARD, 324 U.S. 793, 798, 802, N. 8. 
THUS, THE OWNERS OF PRIVATELY HELD BRIDGES, FERRIES, TURNPIKES AND
RAILROADS MAY NOT OPERATE THEM AS FREELY AS A FARMER DOES HIS FARM. 
SINCE THESE FACILITIES ARE BUILT AND OPERATED PRIMARILY TO BENEFIT THE
PUBLIC AND SINCE THEIR OPERATION IS ESSENTIALLY A PUBLIC FUNCTION, IT
IS SUBJECT TO STATE REGULATION.  FN3  AND, THOUGH THE ISSUE IS NOT
DIRECTLY ANALOGOUS TO THE ONE BEFORE US, WE DO WANT TO POINT OUT BY WAY
OF ILLUSTRATION THAT SUCH REGULATION MAY NOT RESULT IN AN OPERATION OF
THESE FACILITIES, EVEN BY PRIVATELY OWNED COMPANIES, WHICH
UNCONSTITUTIONALLY INTERFERES WITH AND DISCRIMINATES AGAINST INTERSTATE
COMMERCE.  PORT RICHMOND FERRY V. HUDSON COUNTY, SUPRA, 234 U.S. AT 326
AND CASES CITED, PP. 328-329; CF. SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177.  HAD THE CORPORATION HERE OWNED THE
SEGMENT OF THE FOUR-LANE HIGHWAY WHICH RUNS PARALLEL TO THE "BUSINESS
BLOCK" AND OPERATED THE SAME UNDER A STATE FRANCHISE, DOUBTLESS NO ONE
WOULD HAVE SERIOUSLY CONTENDED THAT THE CORPORATION'S PROPERTY INTEREST
IN THE HIGHWAY GAVE IT POWER TO OBSTRUCT THROUGH TRAFFIC OR TO
DISCRIMINATE AGAINST INTERSTATE COMMERCE.  SEE COUNTY COMMISSIONERS V.
CHANDLER, 96 U.S. 205, 208; DONOVAN V. PENNSYLVANIA CO., SUPRA, 199
U.S. AT 294; COVINGTON DRAWBRIDGE CO. V. SHEPHERD, 21 HOW.  112, 125. 
AND EVEN HAD THERE BEEN NO EXPRESS FRANCHISE BUT MERE ACQUIESCENCE BY
THE STATE IN THE CORPORATION'S USE OF ITS PROPERTY AS A SEGMENT OF THE
FOUR-LANE HIGHWAY, OPERATION OF ALL THE HIGHWAY, INCLUDING THE SEGMENT
OWNED BY THE CORPORATION, WOULD STILL HAVE BEEN PERFORMANCE OF A PUBLIC
FUNCTION AND DISCRIMINATION WOULD CERTAINLY HAVE BEEN ILLEGAL.  FN4 

WE DO NOT THINK IT MAKES ANY SIGNIFICANT CONSTITUTIONAL DIFFERENCE AS
TO THE RELATIONSHIP BETWEEN THE RIGHTS OF THE OWNER AND THOSE OF THE
PUBLIC THAT HERE THE STATE, INSTEAD OF PERMITTING THE CORPORATION TO
OPERATE A HIGHWAY, PERMITTED IT TO USE ITS PROPERTY AS A TOWN, OPERATE
A "BUSINESS BLOCK" IN THE TOWN AND A STREET AND SIDEWALK ON THAT
BUSINESS BLOCK.  CF. BARNEY V. KEOKUK, 94 U.S. 324, 340.  WHETHER A
CORPORATION OR A MUNICIPALITY OWNS OR POSSESSES THE TOWN THE PUBLIC IN
EITHER CASE HAS AN IDENTICAL INTEREST IN THE FUNCTIONING OF THE
COMMUNITY IN SUCH MANNER THAT THE CHANNELS OF COMMUNICATION REMAIN
FREE.  AS WE HAVE HERETOFORE STATED, THE TOWN OF CHICKASAW DOES NOT
FUNCTION DIFFERENTLY FROM ANY OTHER TOWN.  THE "BUSINESS BLOCK" SERVES
AS THE COMMUNITY SHOPPING CENTER AND IS FREELY ACCESSIBLE AND OPEN TO
THE PEOPLE IN THE AREA AND THOSE PASSING THROUGH.  THE MANAGERS
APPOINTED BY THE CORPORATION CANNOT CURTAIL THE LIBERTY OF PRESS AND
RELIGION OF THESE PEOPLE CONSISTENTLY WITH THE PURPOSES OF THE
CONSTITUTIONAL GUARANTEES, AND A STATE STATUTE, AS THE ONE HERE
INVOLVED, WHICH ENFORCES SUCH ACTION BY CRIMINALLY PUNISHING THOSE WHO
ATTEMPT TO DISTRIBUTE RELIGIOUS LITERATURE CLEARLY VIOLATES THE FIRST
AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION. 

MANY PEOPLE IN THE UNITED STATES LIVE IN COMPANY-OWNED TOWNS.  FN5
THESE PEOPLE, JUST AS RESIDENTS OF MUNICIPALITIES, ARE FREE CITIZENS OF
THEIR STATE AND COUNTRY.  JUST AS ALL OTHER CITIZENS THEY MUST MAKE
DECISIONS WHICH AFFECT THE WELFARE OF COMMUNITY AND NATION.  TO ACT AS
GOOD CITIZENS THEY MUST BE INFORMED.  IN ORDER TO ENABLE THEM TO BE
PROPERLY INFORMED THEIR INFORMATION MUST BE UNCENSORED.  THERE IS NO
MORE REASON FOR DEPRIVING THESE PEOPLE OF THE LIBERTIES GUARANTEED BY
THE FIRST AND FOURTEENTH AMENDMENTS THAN THERE IS FOR CURTAILING THESE
FREEDOMS WITH RESPECT TO ANY OTHER CITIZEN.  FN6 

WHEN WE BALANCE THE CONSTITUTIONAL RIGHTS OF OWNERS OF PROPERTY
AGAINST THOSE OF THE PEOPLE TO ENJOY FREEDOM OF PRESS AND RELIGION, AS
WE MUST HERE, WE REMAIN MINDFUL OF THE FACT THAT THE LATTER OCCUPY A
PREFERRED POSITION.  FN7  AS WE HAVE STATED BEFORE, THE RIGHT TO
EXERCISE THE LIBERTIES SAFEGUARDED BY THE FIRST AMENDMENT "LIES AT THE
FOUNDATION OF FREE GOVERNMENT BY FREE MEN" AND WE MUST IN ALL CASES
"WEIGH THE CIRCUMSTANCES AND  ...  APPRAISE THE  ...  REASONS  ... IN
SUPPORT OF THE REGULATION  ...  OF THE RIGHTS."  SCHNEIDER V. STATE,
308 U.S. 147, 161.  IN OUR VIEW THE CIRCUMSTANCE THAT THE PROPERTY
RIGHTS TO THE PREMISES WHERE THE DEPRIVATION OF LIBERTY, HERE INVOLVED,
TOOK PLACE, WERE HELD BY OTHERS THAN THE PUBLIC, IS NOT SUFFICIENT TO
JUSTIFY THE STATE'S PERMITTING A CORPORATION TO GOVERN A COMMUNITY OF
CITIZENS SO AS TO RESTRICT THEIR FUNDAMENTAL LIBERTIES AND THE
ENFORCEMENT OF SUCH RESTRAINT BY THE APPLICATION OF A STATE STATUTE. 
INSOFAR AS THE STATE HAS ATTEMPTED TO IMPOSE CRIMINAL PUNISHMENT ON
APPELLANT FOR UNDERTAKING TO DISTRIBUTE RELIGIOUS LITERATURE IN A
COMPANY TOWN, ITS ACTION CANNOT STAND.  THE CASE IS REVERSED AND THE
CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  HAGUE V. C.I.O., 307 U.S. 496; SCHNEIDER V. STATE, 308 U.S. 147;
THORNHILL V. ALABAMA, 310 U.S. 88; CANTWELL V. CONNECTICUT, 310 U.S.
296; DISSENT OF CHIEF JUSTICE STONE IN JONES V. OPELIKA, 316 U.S. 584,
600, ADOPTED AS THE OPINION OF THE COURT, 319 U.S. 103; LARGENT V.
TEXAS, 318 U.S. 418; MURDOCK V. PENNSYLVANIA, 319 U.S. 105; FOLLETT V.
MCCORMICK, 321 U.S. 573. 

FN2  WE DO NOT QUESTION THE STATE COURT'S DETERMINATION OF THE ISSUE
OF "DEDICATION."  THAT DETERMINATION MEANS THAT THE CORPORATION COULD,
IF IT SO DESIRED, ENTIRELY CLOSE THE SIDEWALK AND THE TOWN TO THE
PUBLIC AND IS DECISIVE OF ALL QUESTIONS OF STATE LAW WHICH DEPEND ON
THE OWNER'S BEING ESTOPPED TO RECLAIM POSSESSION OF, AND THE PUBLIC'S
HOLDING THE TITLE TO, OR HAVING RECEIVED AN IRREVOCABLE EASEMENT IN,
THE PREMISES.  DEMOPOLIS V. WEBB, 87 ALA. 659, 6 SO. 408; HAMILTON V.
TOWN OF WARRIOR, 215 ALA. 670, 112 SO. 136; TOWN OF LEEDS V. SHARP, 218
ALA. 403, 405, 118 SO. 572; FORNEY V. CALHOUN COUNTY, 84 ALA. 215, 4
SO. 153; CLOVERDALE HOMES V. CLOVERDALE, 182 ALA. 419, 62 SO. 712.  THE
"DEDICATION" OF A ROAD TO THE PUBLIC MAY ALSO BE DECISIVE OF WHETHER,
UNDER ALABAMA LAW, OBSTRUCTING THE ROAD CONSTITUTES A CRIME, BEVERLY V.
STATE, 28 ALA. APP. 451, 185 SO. 768, AND WHETHER CERTAIN ACTION ON OR
NEAR THE ROAD AMOUNTS TO A TORT.  THRASHER V. BURR, 202 ALA. 307, 80
SO. 372.  BUT DETERMINATION OF THE ISSUE OF "DEDICATION" DOES NOT
DECIDE THE QUESTION UNDER THE FEDERAL CONSTITUTION HERE INVOLVED. 
FN3  CLARK'S FERRY BRIDGE CO. V. PUBLIC SERVICE COMMISSION, 291 U.S.
227; AMERICAN TOLL BRIDGE CO. V. RAILROAD COMMISSION, 307 U.S. 486;
MILLS V. ST. CLAIR COUNTY, 8 HOW.  569, 581; PORT RICHMOND FERRY V.
HUDSON COUNTY, 234 U.S. 317, 327, 331-332; COVINGTON & L. TURNPIKE ROAD
CO. V. SANDFORD, 164 U.S. 578; NORFOLK & S. TURNPIKE CO. V. VIRGINIA,
225 U.S. 264; DONOVAN V. PENNSYLVANIA CO., 199 U.S. 279, AND CASES
CITED ON PP. 293-295. 

FN4  AND CERTAINLY THE CORPORATION CAN NO MORE DEPRIVE PEOPLE OF
FREEDOM OF PRESS AND RELIGION THAN IT CAN DISCRIMINATE AGAINST
COMMERCE.  IN HIS DISSENTING OPINION IN JONES V. OPELIKA, 316 U.S. 584,
600, WHICH LATER WAS ADOPTED AS THE OPINION OF THE COURT, 319 U.S. 103,
104, MR. CHIEF JUSTICE STONE MADE THE FOLLOWING PERTINENT STATEMENT:
"FREEDOM OF PRESS AND RELIGION, EXPLICITLY GUARANTEED BY THE
CONSTITUTION, MUST AT LEAST BE ENTITLED TO THE SAME FREEDOM FROM
BURDENSOME TAXATION WHICH IT HAS BEEN THOUGHT THAT THE MORE GENERAL
PHRASEOLOGY OF THE COMMERCE CLAUSE HAS EXTENDED TO INTERSTATE
COMMERCE.  WHATEVER DOUBTS MAY BE ENTERTAINED AS TO THIS COURT'S
FUNCTION TO RELIEVE, UNAIDED BY CONGRESSIONAL LEGISLATION, FROM
BURDENSOME TAXATION UNDER THE COMMERCE CLAUSE, SEE GWIN, WHITE & PRINCE
V. HENNEFORD, 305 U.S. 434, 441, 446-55; MCCARROLL V. DIXIE LINES, 309
U.S. 176, 184-85, IT CANNOT BE THOUGHT THAT THAT FUNCTION IS WANTING
UNDER THE EXPLICIT GUARANTIES OF FREEDOM OF SPEECH, PRESS AND
RELIGION."  316 U.S. AT 610-11. 

FN5  IN THE BITUMINOUS COAL INDUSTRY ALONE, APPROXIMATELY ONE-HALF OF
THE MINERS IN THE UNITED STATES LIVED IN COMPANY-OWNED HOUSES IN THE
PERIOD FROM 1922-23.  THE PERCENTAGE VARIED FROM 9 PER CENT IN ILLINOIS
AND INDIANA AND 64 PER CENT IN KENTUCKY, TO ALMOST 80 PER CENT IN WEST
VIRGINIA.  U.S. COAL COMMISSION, REPORT, 1925, PART III, PP. 1467, 1469
SUMMARIZED IN MORRIS, THE PLIGHT OF THE COAL MINER, PHILADELPHIA 1934,
CH. VI, P. 86.  THE MOST RECENT STATISTICS WE FOUND AVAILABLE ARE IN
MAGNUSSON, HOUSING BY EMPLOYERS IN THE UNITED STATES, BUREAU OF LABOR
STATISTICS BULLETIN NO. 263(MISC.  SER.)  P. 11.  SEE ALSO UNITED
STATES DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION, DATA ON PAY ROLL
DEDUCTIONS, UNION MANUFACTURING COMPANY, UNION POINT, GEORGIA, JUNE
1941; RHYNE, SOME SOUTHERN COTTON MILL WORKERS AND THEIR VILLAGES,
CHAPEL HILL, 1930(STUDY COMPLETED UNDER THE DIRECTION OF THE INSTITUTE
FOR RESEARCH IN SOCIAL SCIENCE AT THE UNIVERSITY OF NORTH CAROLINA);
COMMENT, URBAN REDEVELOPMENT, 54 YALE L.J. 116. 

FN6  AS TO THE SUPPRESSION OF CIVIL LIBERTIES IN COMPANY TOWNS AND
THE NEED OF THOSE WHO LIVE THERE FOR CONSTITUTIONAL PROTECTION, SEE THE
SUMMARY OF FACTS AIRED BEFORE THE SENATE COMMITTEE ON EDUCATION AND
LABOR, VIOLATIONS OF FREE SPEECH AND RIGHTS OF LABOR, HEARINGS PURSUANT
TO S. RES. 266, 74TH CONG., 2D SESS., 1937, SUMMARIZED IN BOWDEN,
FREEDOM FOR WAGE EARNERS, ANNALS OF THE AMERICAN ACADEMY OF POLITICAL
AND SOCIAL SCIENCE, NOV. 1938, P. 185; Z. CHAFEE, THE INQUIRING MIND
(NEW YORK, 1928), PP. 173-74; PAMPHLET PUBLISHED IN 1923 BY THE
BITUMINOUS OPERATORS' SPECIAL COMMITTEE UNDER THE TITLE THE COMPANY
TOWN; U.S. COAL COMMISSION, REPORT, SUPRA, PART III, P. 1331. 

FN7  JONES V. OPELIKA, SUPRA, 316 U.S. AT 608; MURDOCK V.
PENNSYLVANIA, SUPRA, 319 U.S. AT 115; FOLLETT V. MCCORMICK, SUPRA, 321
U.S. AT 577. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

SO LONG AS THE VIEWS WHICH PREVAILED IN JONES V. OPELIKA, 319 U.S.
103, IN CONNECTION WITH 316 U.S. 584, 600; MURDOCK V. PENNSYLVANIA, 319
U.S. 105; MARTIN V. STRUTHERS, 319 U.S. 141, EXPRESS THE LAW OF THE
CONSTITUTION, I AM UNABLE TO FIND LEGAL SIGNIFICANCE IN THE FACT THAT A
TOWN IN WHICH THE CONSTITUTIONAL FREEDOMS OF RELIGION AND SPEECH ARE
INVOKED HAPPENS TO BE COMPANY-OWNED.  THESE DECISIONS ACCORDED THE
PURVEYORS OF IDEAS, RELIGIOUS OR OTHERWISE, "A PREFERRED POSITION,"
MURDOCK V. PENNSYLVANIA, SUPRA AT 115, EVEN TO THE EXTENT OF RELIEVING
THEM FROM AN UNHAMPERING AND NON-DISCRIMINATORY DUTY OF BEARING THEIR
SHARE OF THE COST OF MAINTAINING THE PEACE AND THE OTHER AMENITIES OF A
CIVILIZED SOCIETY.  CONSTITUTIONAL PRIVILEGES HAVING SUCH A REACH OUGHT
NOT TO DEPEND UPON A STATE COURT'S NOTION OF THE EXTENT OF "DEDICATION"
OF PRIVATE PROPERTY TO PUBLIC PURPOSES.  LOCAL DETERMINATIONS OF SUCH
TECHNICAL MATTERS GOVERN CONTROVERSIES AFFECTING PROPERTY.  BUT WHEN
DECISIONS BY STATE COURTS INVOLVING LOCAL MATTERS ARE SO INTERWOVEN
WITH THE DECISION OF THE QUESTION OF CONSTITUTIONAL RIGHTS THAT ONE
NECESSARILY INVOLVES THE OTHER, STATE DETERMINATION OF LOCAL QUESTIONS
CANNOT CONTROL THE FEDERAL CONSTITUTIONAL RIGHT. 

A COMPANY-OWNED TOWN GIVES RISE TO A NET-WORK OF PROPERTY RELATIONS. 
AS TO THESE, THE JUDICIAL ORGAN OF A STATE HAS THE FINAL SAY.  BUT A
COMPANY-OWNED TOWN IS A TOWN.  IN ITS COMMUNITY ASPECTS IT DOES NOT
DIFFER FROM OTHER TOWNS.  THESE COMMUNITY ASPECTS ARE DECISIVE IN
ADJUSTING THE RELATIONS NOW BEFORE US, AND MORE PARTICULARLY IN
ADJUDICATING THE CLASH OF FREEDOMS WHICH THE BILL OF RIGHTS WAS
DESIGNED TO RESOLVE - THE FREEDOM OF THE COMMUNITY TO REGULATE ITS LIFE
AND THE FREEDOM OF THE INDIVIDUAL TO EXERCISE HIS RELIGION AND TO
DISSEMINATE HIS IDEAS.  TITLE TO PROPERTY AS DEFINED BY STATE LAW
CONTROLS PROPERTY RELATIONS; IT CANNOT CONTROL ISSUES OF CIVIL
LIBERTIES WHICH ARISE PRECISELY BECAUSE A COMPANY TOWN IS A TOWN AS
WELL AS A CONGERIES OF PROPERTY RELATIONS.  AND SIMILARLY THE TECHNICAL
DISTINCTIONS ON WHICH A FINDING OF "TRESPASS" SO OFTEN DEPENDS ARE TOO
TENUOUS TO CONTROL DECISION REGARDING THE SCOPE OF THE VITAL LIBERTIES
GUARANTEED BY THE CONSTITUTION. 

ACCORDINGLY, AS I HAVE ALREADY INDICATED, SO LONG AS THE SCOPE OF THE
GUARANTEES OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY
ABSORPTION OF THE FIRST REMAINS THAT WHICH THE COURT GAVE TO IT IN THE
SERIES OF CASES IN THE OCTOBER TERM, 1942, THE CIRCUMSTANCES OF THE
PRESENT CASE SEEM TO ME CLEARLY TO FALL WITHIN IT.  AND SO I AGREE WITH
THE OPINION OF THE COURT, EXCEPT THAT PORTION OF IT WHICH RELIES ON
ARGUMENTS DRAWN FROM THE RESTRICTIONS WHICH THE COMMERCE CLAUSE IMPOSES
ON STATE REGULATION OF COMMERCE.  IT DOES NOT SEEM TO ME TO FURTHER
CONSTITUTIONAL ANALYSIS TO SEEK HELP FOR THE SOLUTION OF THE DELICATE
PROBLEMS ARISING UNDER THE FIRST AMENDMENT FROM THE VERY DIFFERENT
ORDER OF PROBLEMS WHICH THE COMMERCE CLAUSE PRESENTS.  THE LATTER
INVOLVES AN ACCOMMODATION BETWEEN NATIONAL AND STATE POWERS OPERATING
IN THE SAME FIELD.  WHERE THE FIRST AMENDMENT APPLIES, IT IS A DENIAL
OF ALL GOVERNMENTAL POWER IN OUR FEDERAL SYSTEM. 

MR. JUSTICE REED, DISSENTING. 

FORMER DECISIONS OF THIS COURT HAVE INTERPRETED GENEROUSLY THE
CONSTITUTIONAL RIGHTS OF PEOPLE IN THIS LAND TO EXERCISE FREEDOM OF
RELIGION, OF SPEECH AND OF THE PRESS.  FN1  IT HAS NEVER BEEN HELD AND
IS NOT NOW BY THIS OPINION OF THE COURT THAT THESE RIGHTS ARE ABSOLUTE
AND UNLIMITED EITHER IN RESPECT TO THE MANNER OR THE PLACE OF THEIR
EXERCISE N2.  WHAT THE PRESENT DECISION ESTABLISHES AS A PRINCIPLE IS
THAT ONE MAY REMAIN ON PRIVATE PROPERTY AGAINST THE WILL OF THE OWNER
AND CONTRARY TO THE LAW OF THE STATE SO LONG AS THE ONLY OBJECTION TO
HIS PRESENCE IS THAT HE IS EXERCISING AN ASSERTED RIGHT TO SPREAD THERE
HIS RELIGIOUS VIEWS.  SEE MARRONE V. WASHINGTON JOCKEY CLUB, 227 U.S.
633.  THIS IS THE FIRST CASE TO EXTEND BY LAW THE PRIVILEGE OF
RELIGIOUS EXERCISES BEYOND PUBLIC PLACES OR TO PRIVATE PLACES WITHOUT
THE ASSENT OF THE OWNER.  COMPARE MARTIN V. STRUTHERS, 319 U.S. 141. 

AS THE RULE NOW ANNOUNCED PERMITS THIS INTRUSION, WITHOUT POSSIBILITY
OF PROTECTION OF THE PROPERTY BY LAW, AND APPARENTLY IS EQUALLY
APPLICABLE TO THE FREEDOM OF SPEECH AND THE PRESS, IT SEEMS APPROPRIATE
TO EXPRESS A DISSENT TO THIS, TO US, NOVEL CONSTITUTIONAL DOCTRINE.  OF
COURSE, SUCH PRINCIPLE MAY SUBSEQUENTLY BE RESTRICTED BY THIS COURT TO
THE PRECISE FACTS OF THIS CASE - THAT IS TO PRIVATE PROPERTY IN A
COMPANY TOWN WHERE THE OWNER FOR HIS OWN ADVANTAGE HAS PERMITTED A
RESTRICTED PUBLIC USE BY HIS LICENSEES AND INVITEES.  SUCH DISTINCTIONS
ARE OF DEGREE AND REQUIRE NEW ARBITRARY LINES, JUDICIALLY DRAWN,
INSTEAD OF THOSE HITHERTO ESTABLISHED BY LEGISLATION AND PRECEDENT. 
WHILE THE POWER OF THIS COURT, AS THE INTERPRETER OF THE CONSTITUTION
TO DETERMINE WHAT USE OF REAL PROPERTY BY THE OWNER MAKES THAT PROPERTY
SUBJECT, AT WILL, TO THE REASONABLE PRACTICE OF RELIGIOUS EXERCISES BY
STRANGERS, CANNOT BE DOUBTED, WE FIND NOTHING IN THE PRINCIPLES OF THE
FIRST AMENDMENT, ADOPTED NOW INTO THE FOURTEENTH, WHICH JUSTIFIES THEIR
APPLICATION TO THE FACTS OF THIS CASE.  FN3 

BOTH FEDERAL AND ALABAMA LAW PERMIT, SO FAR AS WE ARE AWARE, COMPANY
TOWNS.  BY THAT WE MEAN AN AREA OCCUPIED BY NUMEROUS HOUSES, CONNECTED
BY PASSWAYS, FENCED OR NOT, AS THE OWNERS MAY CHOOSE.  THESE
COMMUNITIES MAY BE ESSENTIAL TO FURNISH PROPER AND CONVENIENT LIVING
CONDITIONS FOR EMPLOYEES ON ISOLATED OPERATIONS IN LUMBERING, MINING,
PRODUCTION OF HIGH EXPLOSIVES AND LARGE-SCALE FARMING.  THE
RESTRICTIONS IMPOSED BY THE OWNERS UPON THE OCCUPANTS ARE SOMETIMES
GALLING TO THE EMPLOYEES AND MAY APPEAR UNREASONABLE TO OUTSIDERS. 
UNLESS THEY FALL UNDER THE PROHIBITION OF SOME LEGAL RULE, HOWEVER,
THEY ARE A MATTER FOR ADJUSTMENT BETWEEN OWNER AND LICENSEE, OR BY
APPROPRIATE LEGISLATION.  COMPARE WESTERN TURF ASSN. V. GREENBERG, 204
U.S. 359. 

ALABAMA HAS A STATUTE GENERALLY APPLICABLE TO ALL PRIVATELY OWNED
PREMISES.  IT IS TITLE 14, SEC. 426, ALABAMA CODE 1940 WHICH SO FAR AS
PERTINENT READS AS FOLLOWS: 

"TRESPASS AFTER WARNING.  - ANY PERSON WHO, WITHOUT LEGAL CAUSE OR
GOOD EXCUSE, ENTERS INTO THE DWELLING HOUSE OR ON THE PREMISES OF
ANOTHER, AFTER HAVING BEEN WARNED, WITHIN SIX MONTHS PRECEDING, NOT TO
DO SO; OR ANY PERSON, WHO, HAVING ENTERED INTO THE DWELLING HOUSE OR ON
THE PREMISES OF ANOTHER WITHOUT HAVING BEEN WARNED WITHIN SIX MONTHS
NOT TO DO SO, AND FAILS OR REFUSES, WITHOUT LEGAL CAUSE OR GOOD EXCUSE,
TO LEAVE IMMEDIATELY ON BEING ORDERED OR REQUESTED TO DO SO BY THE
PERSON IN POSSESSION, HIS AGENT OR REPRESENTATIVE, SHALL, ON
CONVICTION, BE FINED NOT MORE THAN ONE HUNDRED DOLLARS, AND MAY ALSO BE
IMPRISONED IN THE COUNTY JAIL, OR SENTENCED TO HARD LABOR FOR THE
COUNTY, FOR NOT MORE THAN THREE MONTHS."  APPELLANT WAS DISTRIBUTING
RELIGIOUS PAMPHLETS ON A PRIVATELY OWNED PASSWAY OR SIDEWALK THIRTY
FEET REMOVED FROM A PUBLIC HIGHWAY OF THE STATE OF ALABAMA AND REMAINED
ON THESE PRIVATE PREMISES AFTER AN AUTHORIZED ORDER TO GET OFF.  WE DO
NOT UNDERSTAND FROM THE RECORD THAT THERE WAS OBJECTION TO APPELLANT'S
USE OF THE NEARBY PUBLIC HIGHWAY AND UNDER OUR DECISIONS SHE COULD
RIGHTFULLY HAVE CONTINUED HER ACTIVITIES A FEW FEET FROM THE SPOT SHE
INSISTED UPON USING.  AN OWNER OF PROPERTY MAY VERY WELL HAVE BEEN
WILLING FOR THE PUBLIC TO USE THE PRIVATE PASSWAY FOR BUSINESS PURPOSES
AND YET HAVE BEEN UNWILLING TO FURNISH SPACE FOR STREET TRADES OR A
LOCATION FOR THE PRACTICE OF RELIGIOUS EXHORTATIONS BY ITINERANTS.  THE
PASSWAY HERE IN QUESTION WAS NOT PUT TO ANY DIFFERENT USE THAN OTHER
PRIVATE PASSWAYS THAT LEAD TO PRIVATELY OWNED AREAS, AMUSEMENT PLACES,
RESORT HOTELS OR OTHER BUSINESSES.  THERE HAD BEEN NO DEDICATION OF THE
SIDEWALK TO THE PUBLIC USE, EXPRESS OR IMPLIED.  ALABAMA SO DECIDED AND
WE UNDERSTAND THAT THIS COURT ACCEPTS THAT CONCLUSION.  ALABAMA, ALSO,
DECIDED THAT APPELLANT VIOLATED BY HER ACTIVITIES THE ABOVE-QUOTED
STATE STATUTE. 

THE COURT CALLS ATTENTION TO THE FACT THAT THE OWNERS OF PUBLIC
UTILITIES, BRIDGES, FERRIES, TURNPIKES AND RAILROADS ARE SUBJECT TO
STATE REGULATION OF RATES AND ARE FORBIDDEN TO DISCRIMINATE AGAINST
INTERSTATE COMMERCE.  THIS IS QUITE TRUE BUT WE DOUBT IF THE COURT
MEANS TO IMPLY THAT THE PROPERTY OF THESE UTILITIES MAY BE UTILIZED,
AGAINST THE COMPANIES' WISHES, FOR RELIGIOUS EXERCISES OF THE KIND IN
QUESTION. 

A STATE DOES HAVE THE MORAL DUTY OF FURNISHING THE OPPORTUNITY FOR
INFORMATION, EDUCATION AND RELIGIOUS ENLIGHTENMENT TO ITS INHABITANTS,
INCLUDING THOSE WHO LIVE IN COMPANY TOWNS, BUT IT HAS NOT HERETOFORE
BEEN ADJUDGED THAT IT MUST COMMANDEER, WITHOUT COMPENSATION, THE
PRIVATE PROPERTY OF OTHER CITIZENS TO CARRY OUT THAT OBLIGATION. 
HERETOFORE THIS COURT HAS SUSTAINED THE RIGHT OF EMPLOYEES, UNDER AN
APPROPRIATE STATUTE, PROTECTING FULL FREEDOM OF EMPLOYEE ORGANIZATION,
TO SOLICIT UNION MEMBERSHIP IN NONWORKING TIME ON THE PROPERTY OF AN
EMPLOYER AND AGAINST HIS EXPRESS PROHIBITION.  THIS IS BECAUSE THE
PROHIBITION IS AN IMPEDIMENT TO THE RIGHT OF ORGANIZATION WHICH IS
PROTECTED BY A STATUTE WHICH GOVERNS A RELATION BETWEEN EMPLOYERS AND
EMPLOYEES IF AND WHEN THE LATTER ARE ADMITTED TO THE EMPLOYERS'
PREMISES AS LICENSEES.  IT WAS RECOGNIZED IN THE OPINION THAT THE
FREEDOM OF SOLICITATION WAS THE RESULT OF A REGULATORY STATUTE AND WAS
NOT A CONSTITUTIONAL RIGHT.  REPUBLIC AVIATION CORP. V. LABOR BOARD,
324 U.S. 793, 803.  IN THE AREA WHICH IS COVERED BY THE GUARANTEES OF
THE FIRST AMENDMENT, THIS COURT HAS BEEN CAREFUL TO POINT OUT THAT THE
OWNER OF PROPERTY MAY PROTECT HIMSELF AGAINST THE INTRUSION OF
STRANGERS.  ALTHOUGH IN MARTIN V. STRUTHERS, 319 U.S. 141, AN ORDINANCE
FORBIDDING THE SUMMONSING OF THE OCCUPANTS OF A DWELLING TO RECEIVE
HANDBILLS WAS HELD INVALID BECAUSE IN CONFLICT WITH THE FREEDOM OF
SPEECH AND PRESS, THIS COURT POINTED OUT AT PAGE 147 THAT, AFTER
WARNING, THE PROPERTY OWNER WOULD BE PROTECTED FROM ANNOYANCE.  FN4
THE VERY ALABAMA STATUTE WHICH IS NOW HELD POWERLESS TO PROTECT THE
PROPERTY OF THE GULF SHIPBUILDING CORPORATION, AFTER NOTICE, FROM THIS
TRESPASS WAS THERE CITED, NOTE 10, TO SHOW THAT IT WOULD PROTECT THE
HOUSEHOLDER, AFTER NOTICE.  THE RIGHT TO COMMUNICATE IDEAS WAS
EXPRESSED BY US IN JAMISON V. TEXAS, 318 U.S. 413, 416, AS FOLLOWS:
"BUT ONE WHO IS RIGHTFULLY ON A STREET WHICH THE STATE HAS LEFT OPEN TO
THE PUBLIC CARRIES WITH HIM THERE AS ELSEWHERE THE CONSTITUTIONAL RIGHT
TO EXPRESS HIS VIEWS IN AN ORDERLY FASHION."    OUR CONSTITUTION
GUARANTEES TO EVERY MAN THE RIGHT TO EXPRESS HIS VIEWS IN AN ORDERLY
FASHION.  AN ESSENTIAL ELEMENT OF "ORDERLY" IS THAT THE MAN SHALL ALSO
HAVE A RIGHT TO USE THE PLACE HE CHOOSES FOR HIS EXPOSITION.  THE
RIGHTS OF THE OWNER, WHICH THE CONSTITUTION PROTECTS AS WELL AS THE
RIGHT OF FREE SPEECH, ARE NOT OUTWEIGHED BY THE INTERESTS OF THE
TRESPASSER, EVEN THOUGH HE TRESPASSES IN BEHALF OF RELIGION OR FREE
SPEECH.  WE CANNOT SAY THAT JEHOVAH'S WITNESSES CAN CLAIM THE PRIVILEGE
OF A LICENSE, WHICH HAS NEVER BEEN GRANTED, TO HOLD THEIR MEETINGS IN
OTHER PRIVATE PLACES, MERELY BECAUSE THE OWNER HAS ADMITTED THE PUBLIC
TO THEM FOR OTHER LIMITED PURPOSES.  EVEN THOUGH WE HAVE REACHED THE
POINT WHERE THIS COURT IS REQUIRED TO FORCE PRIVATE OWNERS TO OPEN
THEIR PROPERTY FOR THE PRACTICE THERE OF RELIGIOUS ACTIVITIES OR
PROPAGANDA DISTASTEFUL TO THE OWNER, BECAUSE OF THE PUBLIC INTEREST IN
FREEDOM OF SPEECH AND RELIGION, THERE IS NO NEED FOR THE APPLICATION OF
SUCH A DOCTRINE HERE.  APPELLANT, AS WE HAVE SAID, WAS FREE TO ENGAGE
IN SUCH PRACTICES ON THE PUBLIC HIGHWAYS, WITHOUT BECOMING A TRESPASSER
ON THE COMPANY'S PROPERTY. 

FN1  LOVELL V. GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O., 307 U.S. 496;
SCHNEIDER V. STATE, 308 U.S. 147; THORNHILL V. ALABAMA, 310 U.S. 88;
CANTWELL V. CONNECTICUT, 310 U.S. 296; DISSENT OF CHIEF JUSTICE STONE
IN JONES V. OPELIKA, 316 U.S. 584, 600, ADOPTED AS THE OPINION OF THE
COURT, 319 U.S. 103; JAMISON V. TEXAS, 318 U.S. 413; LARGENT V. TEXAS,
318 U.S. 418; MURDOCK V. PENNSYLVANIA, 319 U.S. 105; MARTIN V.
STRUTHERS, 319 U.S. 141; FOLLETT V. MCCORMICK, 321 U.S. 573. 

FN2 SCHENCK V. UNITED STATES, 249 U.S. 47; GITLOW V. NEW YORK, 268
U.S. 652; NEAR V. MINNESOTA, 283 U.S. 697; CANTWELL V. CONNECTICUT, 310
U.S. 296; CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568; PRINCE V.
MASSACHUSETTS, 321 U.S. 158. 

FN3  "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."  FIRST AMENDMENT TO THE CONSTITUTION. 

FN4  "THE DANGERS OF DISTRIBUTION CAN SO EASILY BE CONTROLLED BY
TRADITIONAL LEGAL METHODS, LEAVING TO EACH HOUSEHOLDER THE FULL RIGHT
TO DECIDE WHETHER HE WILL RECEIVE STRANGERS AS VISITORS, THAT STRINGENT
PROHIBITION CAN SERVE NO PURPOSE BUT THAT FORBIDDEN BY THE
CONSTITUTION, THE NAKED RESTRICTION OF THE DISSEMINATION OF IDEAS. 

"TRADITIONALLY THE AMERICAN LAW PUNISHES PERSONS WHO ENTER ONTO THE
PROPERTY OF ANOTHER AFTER HAVING BEEN WARNED BY THE OWNER TO KEEP OFF. 
GENERAL TRESPASS AFTER WARNING STATUTES EXIST IN AT LEAST TWENTY
STATES, WHILE SIMILAR STATUTES OF NARROWER SCOPE ARE ON THE BOOKS OF AT
LEAST TWELVE STATES MORE.  WE KNOW OF NO STATE WHICH, AS DOES THE
STRUTHERS ORDINANCE IN EFFECT, MAKES A PERSON A CRIMINAL TRESPASSER IF
HE ENTERS THE PROPERTY OF ANOTHER FOR AN INNOCENT PURPOSE WITHOUT AN
EXPLICIT COMMAND FROM THE OWNERS TO STAY AWAY.  THE NATIONAL INSTITUTE
OF MUNICIPAL LAW OFFICERS HAS PROPOSED A FORM OF REGULATION TO ITS
MEMBER CITIES WHICH WOULD MAKE IT AN OFFENSE FOR ANY PERSON TO RING THE
BELL OF A HOUSEHOLDER WHO HAS APPROPRIATELY INDICATED THAT HE IS
UNWILLING TO BE DISTURBED.  THIS OR ANY SIMILAR REGULATION LEAVES THE
DECISION AS TO WHETHER DISTRIBUTERS OF LITERATURE MAY LAWFULLY CALL AT
A HOME WHERE IT BELONGS - WITH THE HOMEOWNER HIMSELF."  MARTIN V.
STRUTHERS, 319 U.S. 141, 147-48. 

THE CHIEF JUSTICE AND MR. JUSTICE BURTON JOIN IN THIS DISSENT. 
..END :













TUCKER V. TEXAS, 326 U.S. 517 


NO. 87.  ARGUED DECEMBER 6, 1945.  - DECIDED JANUARY 7, 1946.  -
REVERSED. 


1.  A STATE CAN NOT, CONSISTENTLY WITH THE FREEDOM OF RELIGION AND THE
PRESS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS, IMPOSE
CRIMINAL PUNISHMENT UPON A PERSON ENGAGED IN RELIGIOUS ACTIVITIES AND
DISTRIBUTING RELIGIOUS LITERATURE IN A VILLAGE OWNED BY THE UNITED
STATES UNDER A CONGRESSIONAL PROGRAM DESIGNED TO PROVIDE HOUSING FOR
WORKERS ENGAGED IN NATIONAL DEFENSE ACTIVITIES, WHERE THE VILLAGE IS
FREELY ACCESSIBLE AND OPEN TO THE PUBLIC AND HAS ALL THE
CHARACTERISTICS OF A TYPICAL AMERICAN TOWN, EVEN THOUGH THE PUNISHMENT
IS ATTEMPTED UNDER A STATE STATUTE MAKING IT UNLAWFUL FOR ANY "PEDDLER
OR HAWKER OF GOODS OR MERCHANDISE" WILLFULLY TO REFUSE TO LEAVE THE
PREMISES AFTER HAVING BEEN NOTIFIED TO DO SO BY THE OWNER OR POSSESSOR
THEREOF.  P. 519. 

2.  NEITHER THE FEDERAL HOUSING ACT NOR THE HOUSING AUTHORITY
REGULATIONS INDICATE A PURPOSE TO RESTRICT FREEDOM OF RELIGION AND OF
THE PRESS WITHIN VILLAGES SUCH AS THE ONE HERE INVOLVED.  P. 520. 

3.  A JUDGMENT OF AN INTERMEDIATE STATE COURT SUSTAINING A STATE
STATUTE CHALLENGED AS REPUGNANT TO THE FEDERAL CONSTITUTION IS
REVIEWABLE HERE UNDER SEC. 237(A) OF THE JUDICIAL CODE, WHERE SUCH
INTERMEDIATE COURT IS THE HIGHEST COURT OF THE STATE IN WHICH A
DECISION IN THE CASE COULD BE HAD.  P. 518. 

TUCKER V. TEXAS. 

APPEAL FROM THE COUNTY COURT OF MEDINA COUNTY, TEXAS. 

APPEAL FROM A JUDGMENT SUSTAINING A CONVICTION FOR VIOLATION OF A
STATE STATUTE CHALLENGED AS INVALID UNDER THE FEDERAL CONSTITUTION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT WAS CHARGED IN THE JUSTICE COURT OF MEDINA COUNTY,
TEXAS, WITH VIOLATING ARTICLE 479, CHAP. 3 OF THE TEXAS PENAL CODE
WHICH MAKES IT AN OFFENSE FOR ANY "PEDDLER OR HAWKER OF GOODS OR
MERCHANDISE" WILFULLY TO REFUSE TO LEAVE PREMISES AFTER HAVING BEEN
NOTIFIED TO DO SO BY THE OWNER OR POSSESSOR THEREOF.  THE APPELLANT
URGED IN HIS DEFENSE THAT HE WAS NOT A PEDDLER OR HAWKER OF
MERCHANDISE, BUT A MINISTER OF THE GOSPEL ENGAGED IN THE DISTRIBUTION
OF RELIGIOUS LITERATURE TO WILLING RECIPIENTS.  HE CONTENDED THAT TO
CONSTRUE THE TEXAS STATUTE AS APPLICABLE TO HIS ACTIVITIES WOULD, TO
THAT EXTENT, BRING IT INTO CONFLICT WITH THE CONSTITUTIONAL GUARANTEES
OF FREEDOM OF PRESS AND RELIGION.  HIS CONTENTION WAS REJECTED AND HE
WAS CONVICTED.  ON APPEAL TO THE MEDINA COUNTY COURT, HIS
CONSTITUTIONAL CONTENTION WAS AGAIN OVERRULED.  SINCE HE COULD NOT
APPEAL TO A HIGHER STATE COURT THIS APPEAL UNDER SEC. 237(A) OF THE
JUDICIAL CODE, 28 U.S.C. 344(A) IS PROPERLY BEFORE US.  LARGENT V.
TEXAS, 318 U.S. 418. 

THE FACTS SHOWN BY THE RECORD NEED BE BUT BRIEFLY STATED.  APPELLANT
IS AN ORDAINED MINISTER OF THE GROUP KNOWN AS JEHOVAH'S WITNESSES.  IN
ACCORDANCE WITH THE PRACTICES OF THIS GROUP HE CALLS ON PEOPLE FROM
DOOR TO DOOR, PRESENTS HIS RELIGIOUS VIEWS TO THOSE WILLING TO LISTEN,
AND DISTRIBUTES RELIGIOUS LITERATURE TO THOSE WILLING TO RECEIVE IT.
IN THE COURSE OF HIS WORK, HE WENT TO THE HONDO NAVIGATION VILLAGE
LOCATED IN MEDINA COUNTY, TEXAS.  THE VILLAGE IS OWNED BY THE UNITED
STATES UNDER A CONGRESSIONAL PROGRAM WHICH WAS DESIGNED TO PROVIDE
HOUSING FOR PERSONS ENGAGED IN NATIONAL DEFENSE ACTIVITIES.  42 U.S.C.,
SECS. 1521-1553.  ACCORDING TO ALL INDICATIONS THE VILLAGE WAS FREELY
ACCESSIBLE AND OPEN TO THE PUBLIC AND HAD THE CHARACTERISTICS OF A
TYPICAL AMERICAN TOWN.  THE FEDERAL PUBLIC HOUSING AUTHORITY HAD PLACED
THE BUILDINGS IN CHARGE OF A MANAGER WHOSE DUTY IT WAS TO RENT THE
HOUSES, COLLECT THE RENTS, AND GENERALLY TO SUPERVISE OPERATIONS,
SUBJECT TO OVER-ALL CONTROL BY THE AUTHORITY.  HE ORDERED APPELLANT TO
DISCONTINUE ALL RELIGIOUS ACTIVITIES IN THE VILLAGE.  APPELLANT
REFUSED.  LATER THE MANAGER ORDERED APPELLANT TO LEAVE THE VILLAGE. 
INSISTING THAT THE MANAGER HAD NO RIGHT TO SUPPRESS RELIGIOUS
ACTIVITIES, APPELLANT DECLINED TO LEAVE, AND HIS ARREST FOLLOWED.  AT
THE TRIAL THE MANAGER TESTIFIED THAT THE CONTROLLING FEDERAL AGENCY HAD
GIVEN HIM FULL AUTHORITY TO REGULATE THE CONDUCT OF THOSE LIVING IN THE
VILLAGE, AND THAT HE DID NOT ALLOW PREACHING BY MINISTERS OF ANY
DENOMINATION WITHOUT A PERMIT ISSUED BY HIM IN HIS DISCRETION.  HE
THOUGHT THIS BROAD AUTHORITY WAS ENTRUSTED TO HIM, AT LEAST IN PART, BY
A REGULATION, WHICH THE AUTHORITY'S WASHINGTON OFFICE HAD ALLEGEDLY
PROMULGATED.  HE TESTIFIED THAT THIS REGULATION PROVIDED THAT NO
PEDDLERS OR HAWKERS COULD COME INTO OR REMAIN IN THE VILLAGE WITHOUT
GETTING PERMISSION FROM THE MANAGER.  FN1  SINCE THE TEXAS COURT HAS
DEEMED THIS EVIDENCE OF AUTHORITY OF THE MANAGER TO SUPPRESS
APPELLANT'S ACTIVITIES SUFFICIENT TO SUPPORT A CONVICTION UNDER THE
STATE STATUTE, WE ACCEPT THEIR HOLDING IN THIS RESPECT FOR THE PURPOSES
OF THIS APPEAL. 

THE FOREGOING STATEMENT OF FACTS SHOWS THEIR CLOSE SIMILARITY TO THE
FACTS WHICH LED US THIS DAY TO DECIDE IN MARSH V. ALABAMA, ANTE, P.
501, THAT MANAGERS OF A COMPANY-OWNED TOWN COULD NOT BAR ALL
DISTRIBUTION OF RELIGIOUS LITERATURE WITHIN THE TOWN, OR CONDITION
DISTRIBUTION UPON A PERMIT ISSUED AT THE DISCRETION OF ITS MANAGEMENT. 
THE ONLY DIFFERENCE BETWEEN THIS CASE AND MARSH V. ALABAMA IS THAT HERE
INSTEAD OF A PRIVATE CORPORATION, THE FEDERAL GOVERNMENT OWNS AND
OPERATES THE VILLAGE.  THIS DIFFERENCE DOES NOT AFFECT THE RESULT. 
CERTAINLY NEITHER CONGRESS NOR FEDERAL AGENCIES ACTING PURSUANT TO
CONGRESSIONAL AUTHORIZATION MAY ABRIDGE THE FREEDOM OF PRESS AND
RELIGION SAFEGUARDED BY THE FIRST AMENDMENT.  TRUE, UNDER CERTAIN
CIRCUMSTANCES IT MIGHT BE PROPER FOR SECURITY REASONS TO ISOLATE THE
INHABITANTS OF A SETTLEMENT, SUCH AS HONDO VILLAGE, WHICH HOUSES
WORKERS ENGAGED IN PRODUCING WAR MATERIALS.  BUT NO SUCH NECESSITY AND
NO SUCH INTENTION ON THE PART OF CONGRESS OR THE PUBLIC HOUSING
AUTHORITY ARE SHOWN HERE. 

IT FOLLOWS FROM WHAT WE HAVE SAID THAT TO THE EXTENT THAT THE TEXAS
STATUTE WAS HELD TO AUTHORIZE APPELLANT'S PUNISHMENT FOR REFUSING TO
REFRAIN FROM RELIGIOUS ACTIVITIES IN HONDO VILLAGE IT IS AN INVALID
ABRIDGEMENT OF THE FREEDOM OF PRESS AND RELIGION. 

WE THINK IT ONLY PROPER TO ADD THAT NEITHER THE HOUSING ACT PASSED BY
CONGRESS NOR THE HOUSING AUTHORITY REGULATIONS CONTAIN LANGUAGE
INDICATING A PURPOSE TO BAR FREEDOM OF PRESS AND RELIGION WITHIN
VILLAGES SUCH AS THE ONE HERE INVOLVED.  THE CASE IS REVERSED AND THE
CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED. 

FN1  THE AVAILABLE REGULATIONS OF THE AUTHORITY, OF WHICH WE CAN TAKE
JUDICIAL NOTICE, BOWLES V. UNITED STATES, 319 U.S. 33, 35, DO NOT SHOW
A REGULATION OF THIS KIND. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IT WILL BE TIME ENOUGH TO CONSIDER THE CONSTITUTIONALITY OF AN ACT OF
CONGRESS THAT IS CLAIMED TO BE IN DEFIANCE OF THE FIRST AMENDMENT WHEN
SUCH LEGISLATION BY CONGRESS CONFRONTS US WITH THE PROBLEM.  THE
PRESENT CASE DOES NOT PRESENT SUCH A SITUATION.  SUBJECT TO THIS
RESERVATION, I AGREE WITH THE OPINION OF THE COURT FOR THE REASONS
BRIEFLY STATED IN MARSH V. ALABAMA, ANTE, P. 510.  IN THE CASE OF
COMMUNITIES ESTABLISHED UNDER THE SPONSORSHIP OF THE UNITED STATES BY
VIRTUE OF ITS SPENDING POWER, IT WOULD, I SHOULD THINK, BE EVEN LESS
DESIRABLE THAN IN THE CASE OF COMPANY TOWNS TO MAKE THE CONSTITUTIONAL
FREEDOMS OF RELIGION AND SPEECH TURN ON GOSSAMER DISTINCTIONS ABOUT THE
EXTENT TO WHICH LAND HAS BEEN "DEDICATED" TO PUBLIC USES. 

THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON,
DISSENTING. 

THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON CONSTRUE
THE RECORD IN THIS CASE AS SHOWING A CONVICTION FOR REFUSING, AT THE
REQUEST OF ITS AUTHORIZED AGENT, TO LEAVE PREMISES WHICH ARE OWNED BY
THE UNITED STATES AND WHICH HAVE NOT BEEN SHOWN TO BE DEDICATED TO
GENERAL USE BY THE PUBLIC.  WE, THEREFORE, WOULD AFFIRM THE CONVICTION
FOR THE REASONS GIVEN IN THE DISSENT IN MARSH V. ALABAMA, ANTE, P.
511. 
..END :














JOHN KELLEY CO. V. COMM'R, 326 U.S. 521 


ARGUED OCTOBER 11, 1945.  - DECIDED JANUARY 7, 1946.  - 146 F.2D 466,
REVERSED - 146 F.2D 809, AFFIRMED. 


1.  TWO TAX CASES TURNED UPON THE QUESTION WHETHER PAYMENTS MADE UNDER
CERTAIN CORPORATE OBLIGATIONS WERE INTEREST OR DIVIDENDS.  ALTHOUGH THE
FACTS WERE QUITE SIMILAR, THE CHARACTERISTICS OF THE OBLIGATIONS IN
QUESTION AND THE SURROUNDING CIRCUMSTANCES WERE OF SUCH A NATURE THAT
IT WAS REASONABLY POSSIBLE TO REACH THE CONCLUSION THAT THE PAYMENTS
WERE INTEREST TO CREDITORS IN ONE CASE AND DIVIDENDS TO STOCKHOLDERS IN
THE OTHER CASE; AND THE TAX COURT SO DECIDED.  HELD THE CONCLUSIONS OF
THE TAX COURT IN SUCH CASES SHOULD BE ACCEPTED.  PP. 526-529. 

2.  SECTION 1141(C)(1) OF THE INTERNAL REVENUE CODE, WHICH AUTHORIZES
THE CIRCUIT COURT OF APPEALS, UPON REVIEWING A DECISION OF THE TAX
COURT, TO AFFIRM IT OR, IF THE DECISION OF THE TAX COURT "IS NOT IN
ACCORDANCE WITH LAW," TO MODIFY OR REVERSE IT, LEAVES TO THE FINAL
DETERMINATION OF THE TAX COURT ALL ISSUES WHICH ARE NOT CLEAR-CUT
QUESTIONS OF LAW.  DOBSON V. COMMISSIONER, 320 U.S. 489, FOLLOWED.  P.
526. 

3.  THE WORDS "INTEREST" AND "DIVIDENDS," AS USED IN THE TAX
STATUTES, ARE WELL UNDERSTOOD AND NEED NO FURTHER DEFINITION.  P. 530. 

JOHN KELLEY CO. V. COMMISSIONER OF INTERNAL REVENUE. 

NO. 36.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.* 

*TOGETHER WITH NO. 47, TALBOT MILLS V. COMMISSIONER OF INTERNAL
REVENUE, ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

NO. 36.  CERTIORARI, 325 U.S. 843, TO REVIEW REVERSAL OF A DECISION
OF THE TAX COURT, 1 T.C. 457, HOLDING CERTAIN PAYMENTS BY THE
PETITIONER TO BE INTEREST ON INDEBTEDNESS AND DEDUCTIBLE UNDER SEC.
23(B) OF THE INTERNAL REVENUE CODE. 

NO. 47.  CERTIORARI, 325 U.S. 844, TO REVIEW AFFIRMANCE OF A DECISION
OF THE TAX COURT, 3 T.C. 95, HOLDING CERTAIN PAYMENTS BY THE PETITIONER
TO BE DIVIDENDS ON STOCK AND NOT DEDUCTIBLE AS INTEREST UNDER SEC.
23(B) OF THE INTERNAL REVENUE CODE. 

OPINION OF THE COURT BY MR. JUSTICE REED, ANNOUNCED BY MR. JUSTICE
FRANKFURTER. 

THESE WRITS OF CERTIORARI WERE GRANTED TO EXAMINE THE DEDUCTIBILITY
AS INTEREST OF CERTAIN PAYMENTS WHICH THE TAXPAYER CORPORATIONS MADE TO
HOLDERS OF THEIR CORPORATE OBLIGATIONS.  ALTHOUGH THE OBLIGATIONS OF
THE TWO TAXPAYERS HAD ONLY ONE STRIKING DIFFERENCE, THE NONCUMULATIVE
IN ONE AND THE CUMULATIVE QUALITY IN THE OTHER OF THE PAYMENTS RESERVED
UNDER THE CHARACTERIZATION OF INTEREST, THE TAX COURT (FORMERLY THE
BOARD OF TAX APPEALS, 56 STAT. 957; ONLY ITS PRESENT NAME WILL BE USED
HEREIN) HELD THAT THE PAYMENTS UNDER THE FORMER, THE KELLEY COMPANY
CASE, WERE INTEREST AND UNDER THE TALBOT MILLS WERE DIVIDENDS.  THE
CIRCUIT COURT OF APPEALS REVERSED THE TAX COURT IN THE KELLEY CASE AND
ANOTHER CIRCUIT AFFIRMED THE TALBOT MILLS DECISION.  FN1  ON ACCOUNT OF
THE DIVERSITY OF APPROACH IN THE TAX COURT AND THE REVIEWING COURTS, WE
GRANTED CERTIORARI. 

IN THE KELLEY CASE, A CORPORATION, ALL OF WHOSE COMMON AND PREFERRED
STOCK WAS OWNED DIRECTLY OR AS TRUSTEE BY MEMBERS OF A FAMILY GROUP,
WAS REORGANIZED BY AUTHORIZING THE ISSUE OF $250,000 INCOME DEBENTURE
BEARER BONDS, ISSUED UNDER A TRUST INDENTURE, CALLING FOR 8% INTEREST,
NONCUMULATIVE.  THEY WERE OFFERED ONLY TO SHAREHOLDERS OF THE TAXPAYER
BUT WERE ASSIGNABLE.  THE DEBENTURES WERE PAYABLE IN TWENTY YEARS,
DECEMBER 31, 1956, WITH PAYMENT OF GENERAL INTEREST CONDITIONED UPON
THE SUFFICIENCY OF THE NET INCOME TO MEET THE OBLIGATION.  THE
DEBENTURE HOLDERS HAD PRIORITY OF PAYMENT OVER STOCKHOLDERS BUT WERE
SUBORDINATED TO ALL OTHER CREDITORS.  THE DEBENTURES WERE REDEEMABLE AT
THE TAXPAYER'S OPTION AND CARRIED THE USUAL ACCELERATION PROVISIONS FOR
SPECIFIC DEFAULTS.  THE DEBENTURE HOLDERS HAD NO RIGHT TO PARTICIPATE
IN MANAGEMENT.  OTHER CHANGES NOT MATERIAL HERE WERE MADE IN THE
CORPORATE STRUCTURE.  DEBENTURES WERE ISSUED TO THE AMOUNT OF $150,000
FACE VALUE.  THE GREATER PART, $114,648, WAS ISSUED IN EXCHANGE FOR THE
ORIGINAL PREFERRED, WITH SIX PER CENT CUMULATIVE GUARANTEED DIVIDENDS,
AT ITS RETIREMENT PRICE AND THE BALANCE SOLD TO STOCKHOLDERS AT PAR,
WHICH WAS EVENTUALLY PAID WITH SUMS OBTAINED BY THE PURCHASERS FROM
COMMON STOCK DIVIDENDS.  COMMON STOCK WAS OWNED IN THE SAME PROPORTIONS
BY THE SAME STOCKHOLDERS BEFORE AND AFTER THE REORGANIZATION. 

IN THE TALBOT MILLS CASE THE TAXPAYER WAS A CORPORATION WHICH, PRIOR
TO ITS RECAPITALIZATION, HAD A CAPITAL STOCK OF FIVE THOUSAND SHARES OF
THE PAR VALUE OF $100 OR $500,000.  ALL OF THE STOCK WITH THE EXCEPTION
OF SOME QUALIFYING SHARES WAS HELD BY MEMBERS, THROUGH BLOOD OR
MARRIAGE, OF THE TALBOT FAMILY.  IN AN EFFORT TO ADJUST THE CAPITAL
STRUCTURE TO THE ADVANTAGE OF THE TAXPAYER, THE COMPANY WAS
RECAPITALIZED JUST PRIOR TO THE BEGINNING OF THE FISCAL YEAR IN
QUESTION, BY EACH STOCKHOLDER SURRENDERING FOUR-FIFTHS OF HIS STOCK AND
TAKING IN LIEU THEREOF REGISTERED NOTES IN AGGREGATE FACE VALUE EQUAL
TO THE AGGREGATE PAR VALUE OF THE STOCK RETIRED.  THIS AMOUNTED TO AN
ISSUE OF $400,000 IN NOTES TO THE THEN STOCKHOLDERS.  THESE NOTES WERE
DATED OCTOBER 2, 1939, AND WERE PAYABLE TO A SPECIFIC PAYEE OR HIS
ASSIGNEES ON DECEMBER 1, 1964.  THEY BORE ANNUAL INTEREST AT A RATE NOT
TO EXCEED 10% NOR LESS THAN 2%, SUBJECT TO A COMPUTATION THAT TOOK INTO
CONSIDERATION THE NET EARNINGS OF THE CORPORATION FOR THE FISCAL YEAR
ENDED LAST PREVIOUS TO THE ANNUAL INTEREST PAYING DATE.  THERE WAS,
THEREFORE, A MINIMUM AMOUNT OF 2% AND A MAXIMUM OF 10% DUE ANNUALLY AND
BETWEEN THESE LIMITS THE INTEREST PAYABLE VARIED IN ACCORDANCE WITH
COMPANY EARNINGS.  THE NOTES WERE TRANSFERABLE ONLY BY THE OWNER'S
ENDORSEMENT AND THE NOTATION OF THE TRANSFER BY THE COMPANY.  THE
INTEREST WAS CUMULATIVE AND PAYMENT MIGHT BE DEFERRED UNTIL THE NOTE'S
MATURITY WHEN "NECESSARY BY REASON OF THE CONDITION OF THE
CORPORATION."  DIVIDENDS COULD NOT BE PAID UNTIL ALL THEN DUE INTEREST
ON THE NOTES WAS SATISFIED.  THE NOTES LIMITED THE CORPORATION'S RIGHT
TO MORTGAGE ITS REAL ASSETS.  THE NOTES COULD BE SUBORDINATED BY ACTION
OF THE BOARD OF DIRECTORS TO ANY OBLIGATION MATURING NOT LATER THAN THE
MATURITY OF THE NOTES.  FOR THE FISCAL YEAR IN QUESTION THE MAXIMUM
PAYMENT OF 10% WAS MADE ON THE NOTES. 

THE PAYMENTS IN QUESTION ON CORPORATE OBLIGATIONS WERE FOR THE YEARS
IN THE KELLEY CASE, 1937, 1938 AND 1939; IN THE TALBOT MILLS CASE FOR
THE YEAR 1940.  BOTH CORPORATIONS DEDUCTED THE PAYMENTS AS INTEREST
FROM THEIR REPORTS OF GROSS INCOME UNDER STATUTORY SECTIONS AND
REGULATIONS SET OUT IN THE FOOTNOTE.  FN2  THE APPLICABLE STATUTES AND
REGULATIONS WERE IDENTICAL FOR ALL PERIODS.  THE COMMISSIONER ASSERTED
DEFICIENCIES BECAUSE THE PAYMENTS WERE CONSIDERED DIVIDENDS AND NOT
INTEREST. 

THERE IS NOT PRESENT IN EITHER SITUATION THE WHOLLY USELESS TEMPORARY
COMPLIANCE WITH STATUTORY LITERALNESS WHICH THIS COURT CONDEMNED AS
FUTILE, AS A MATTER OF LAW, IN GREGORY V. HELVERING, 293 U.S. 465.  THE
DEMONSTRATED POSSIBILITY OF SALES BY THE HOLDERS OF THE OBLIGATIONS TO
PERSONS OTHER THAN STOCKHOLDERS ALONE PROVES THE DIFFERENTIATION.  AS
MATERIAL AMOUNTS OF CAPITAL WERE INVESTED IN STOCK, WE NEED NOT
CONSIDER THE EFFECT OF EXTREME SITUATIONS SUCH AS NOMINAL STOCK
INVESTMENTS AND AN OBVIOUSLY EXCESSIVE DEBT STRUCTURE. 

FROM THE FOREGOING STATEMENTS OF FACTS, IT APPEARS THAT THE
CHARACTERISTICS OF ALL THE OBLIGATIONS IN QUESTION AND THE SURROUNDING
CIRCUMSTANCES WERE OF SUCH A NATURE THAT IT IS REASONABLY POSSIBLE FOR
DETERMINERS TO REACH THE CONCLUSION THAT THE SECURED ANNUAL PAYMENTS
WERE INTEREST TO CREDITORS IN ONE CASE AND DIVIDENDS TO STOCKHOLDERS IN
THE OTHER CASE.  IN THE KELLEY CASE THERE WERE SALES OF THE DEBENTURES
AS WELL AS EXCHANGES OF PREFERRED STOCK FOR DEBENTURES, A PROMISE TO
PAY A CERTAIN ANNUAL AMOUNT, IF EARNED, A PRIORITY FOR THE DEBENTURES
OVER COMMON STOCK, THE DEBENTURES WERE ASSIGNABLE WITHOUT REGARD TO ANY
TRANSFER OF STOCK, AND A DEFINITE MATURITY DATE IN THE REASONABLE
FUTURE.  THESE INDICIA OF INDEBTEDNESS SUPPORT THE TAX COURT CONCLUSION
THAT THE ANNUAL PAYMENTS WERE INTEREST ON INDEBTEDNESS.  ON THE OTHER
HAND, IN THE TALBOT MILLS CASE, THE TAX COURT FOUND THE FACTORS THERE
PRESENT OF FLUCTUATING ANNUAL PAYMENTS WITH A TWO PER CENT MINIMUM, THE
LIMITATION OF THE ISSUE OF NOTES TO STOCKHOLDERS IN EXCHANGE ONLY FOR
STOCK, TO BE CHARACTERISTICS WHICH DISTINGUISH THE TALBOT MILLS NOTES
FROM THE KELLEY COMPANY DEBENTURES.  UPON AN APPRAISAL OF ALL THE
FACTS, THE TAX COURT REACHED THE CONCLUSION THAT THE ANNUAL PAYMENTS BY
TALBOT MILLS WERE IN REALITY DIVIDENDS AND NOT INTEREST. 

WE THINK THESE CONCLUSIONS SHOULD BE ACCEPTED BY THE CIRCUIT COURTS
OF APPEALS AND BY OURSELVES.  JUDICIAL REVIEW OF TAX COURT DECISIONS
DEPENDS UPON THE INTERNAL REVENUE CODE, SEC. 1141(C) POWERS (1).  IT
READS: 

"TO AFFIRM, MODIFY, OR REVERSE.  - UPON SUCH REVIEW, SUCH COURTS
SHALL HAVE POWER TO AFFIRM OR, IF THE DECISION OF THE BOARD IS NOT IN
ACCORDANCE WITH LAW, TO MODIFY OR TO REVERSE THE DECISION OF THE BOARD,
WITH OR WITHOUT REMANDING THE CASE FOR A REHEARING, AS JUSTICE MAY
REQUIRE." 

IT IS ONLY RECENTLY THAT WE GAVE CAREFUL CONSIDERATION TO THE
PROBLEMS OF REVIEW OF TAX COURT DECISIONS.  DOBSON V. COMMISSIONER, 320
U.S. 489.  THAT OPINION EMPHASIZED THAT OUR INTERPRETATION OF
CONGRESSIONAL PURPOSE, IN ENACTING THE STATUTE, JUST QUOTED, FOR
JUDICIAL REVIEW OF TAX COURT DECISIONS, WAS THAT CONGRESS INTENDED TO
LEAVE TO THE FINAL DETERMINATION OF THE TAX COURT ALL ISSUES WHICH WERE
NOT CLEAR-CUT QUESTIONS OF LAW. 

THE PROVISIONS FOR REVIEW ARE THE SAME NOW AS THEY WERE WHEN ENACTED
IN 1926.  CONGRESS, AND ALL OTHERS INTERESTED, WERE THEN WELL AWARE OF
THE DIFFICULTIES IN DRAWING A LINE BETWEEN QUESTIONS OF FACT AND
QUESTIONS OF LAW.  FN3  THE LEGISLATION WAS UPON A SUBJECT, THE
COLLECTION OF THE REVENUE, IN WHICH FEDERAL ADMINISTRATIVE FINALITY HAD
BEEN GIVEN WIDE SCOPE.  FN4  THE TAX COURT WAS ORIGINALLY ESTABLISHED
TO "SECURE AN IMPARTIAL AND DISINTERESTED DETERMINATION OF THE ISSUES
INVOLVED,"  FN5  SO THAT THE TAXPAYER AND THE GOVERNMENT WOULD HAVE AN
INDEPENDENT REVIEW OF THE POSITION OF EITHER ON TAX DEMANDS BEFORE
PAYMENT OF THE TAX OR FORECLOSURE OF AN ASSERTED DEFICIENCY.  TWO YEARS
LATER ITS SUCCESS WAS RECOGNIZED BY COMMITTEE COMMENDATION AND THE
ENLARGEMENT OF THE FINALITY OF ITS DECISIONS FROM "PRIMA FACIE EVIDENCE
OF THE FACTS CONTAINED THEREIN" TO REVIEWABILITY ONLY "IF THE DECISION
OF THE BOARD IS NOT IN ACCORDANCE WITH LAW."  FN6 AS TO THE MISCHIEF
WHICH THE LIMITATION OF THE SCOPE OF JUDICIAL REVIEW WAS TO CURE, WE
FIND ONLY THE WORDS OF THE COMMITTEE REPORTS.  FN7  WITHOUT A CLEARER
DESCRIPTION BY CONGRESS OF THE INTENDED LINE TO SEPARATE REVIEWABILITY
OF THE TAX COURT DECISIONS FROM NON-REVIEWABILITY, COURTS MUST
INTERPRET THE REVIEW STATUTE, AS BEST THEY CAN, TO ACCOMPLISH THE
DECLARED CONGRESSIONAL PURPOSE OF ADEQUATE CONTROL OF ADMINISTRATIVE
ACTION WITHOUT SUBSTITUTING JUDICIAL OPINION FOR THAT OF THE TAX COURT
UPON THE EVIDENCE.  NOTE 7, SUPRA. 

THE ILLUSTRATIONS IN THE REPORT, NOTE 7, SUPRA, ARE LEGAL QUESTIONS
WITHOUT DOUBT, EXCEPT THE POSSIBILITY THAT THE WORDS "APPLICATION OF
THE STATUTE OR ANY REGULATION HAVING THE FORCE OF LAW" MAY BE THOUGHT
TO GIVE A REVIEWING COURT POWER TO PASS UPON THE TAX COURT'S CONCLUSION
FROM THE PRIMARY OR EVIDENTIAL FACTS.  SO THAT, IN THE PRESENT CASES,
IT MIGHT BE SAID TO BE A QUESTION OF LAW AS TO WHETHER THE PRIMARY
FACTS ADDUCED MADE THE PAYMENTS UNDER CONSIDERATION DIVIDENDS OR
INTEREST.  BUT WE THINK SUCH CONCLUSION GIVES INADEQUATE WEIGHT TO THE
PURPOSE OF THE TAX COURT.  THE FINALITY OF THE TAX COURT'S RULINGS WAS
BEING ENLARGED BY THE 1926 ACT.  THE THEN BOARD WAS SPOKEN OF AS AN
IMPARTIAL AND INDEPENDENT TRIBUNAL OF EXPERTS "FOR THE DETERMINATION OF
TAX LIABILITIES AS BETWEEN THE GOVERNMENT AND THE TAXPAYER."  H. REP.
NO. 1, 69TH CONG., 1ST SESS., P. 17.  THERE WOULD HARDLY NEED TO BE
EXPERTS IN TAX AFFAIRS TO DECIDE QUESTIONS OF DATES OR AMOUNTS OR
VALUES OR TO CALCULATE RATES.  THEIR USEFULNESS LIES PRIMARILY IN THEIR
ABILITY TO EXAMINE RELEVANT FACTS OF BUSINESS TO DETERMINE WHETHER OR
NOT THEY COME UNDER STATUTORY LANGUAGE.  ADEQUATE REASON FOR THE USE OF
THE WORD "APPLICATION" OF COURSE EXISTS IN SITUATIONS WHERE TRUE LEGAL
QUESTIONS ARISE, AS IN WHETHER AN ACT APPLIES TO TRANSFERS ANTECEDENT
TO ITS ENACTMENT OR TO INCOME OR ESTATE TAXES FROM TRUSTS OR TO
SITUATIONS WHICH INVOLVE CONFLICTS OF LAW.  THERE IS NOTHING IN THE
CONTEXT IN WHICH THE WORD "APPLICATION" IS USED WHICH SUGGESTS TO US
THAT IT SHOULD BE GIVEN ITS WIDEST CONNOTATION. 

THESE CASES NOW UNDER CONSIDERATION DEAL WITH WELL UNDERSTOOD WORDS
AS USED IN THE TAX STATUTES - "INTEREST" AND "DIVIDENDS."  THEY NEED NO
FURTHER DEFINITION.  EQUITABLE LIFE ASSURANCE SOCIETY V. COMMISSIONER,
321 U.S. 560; DEPUTY V. DUPONT, 308 U.S. 488, 498.  THE TAX COURT IS
FITTED TO DECIDE WHETHER THE ANNUAL PAYMENTS UNDER THESE CORPORATE
OBLIGATIONS ARE TO BE CLASSIFIED AS INTEREST OR DIVIDENDS.  THE TAX
COURT DECISIONS MERELY DECLARE THAT THE UNDISPUTED FACTS DO OR DO NOT
BRING THE PAYMENTS UNDER THE DEFINITION OF INTEREST OR DIVIDENDS.  FN8
THE DOCUMENTS UNDER CONSIDERATION EMBODY ELEMENTS OF OBLIGATIONS AND
ELEMENTS OF STOCK.  THERE IS NO ONE CHARACTERISTIC, NOT EVEN EXCLUSION
FROM MANAGEMENT, WHICH CAN BE SAID TO BE DECISIVE IN THE DETERMINATION
OF WHETHER THE OBLIGATIONS ARE RISK INVESTMENTS IN THE CORPORATIONS OR
DEBTS.  SO-CALLED STOCK CERTIFICATES MAY BE AUTHORIZED BY CORPORATIONS
WHICH ARE REALLY DEBTS, AND PROMISES TO PAY MAY BE EXECUTED WHICH HAVE
INCIDENTS OF STOCK.  SUCH SITUATIONS SEEM TO US TO FALL WITHIN THE
DOBSON RULE.  FN9 

THIS LEADS US TO AFFIRM THE TALBOT MILLS DECREE AND TO REVERSE THE
KELLEY JUDGMENT.  IT IS SO ORDERED. 

FN1  1 T.C. 457; 146 F.2D 466; CERT. GRANTED, 325 U.S. 843; JUDICIAL
CODE SEC. 240(A).  3 T.C. 95; 146 F.2D 809; CERT. GRANTED, 325 U.S.
844; JUDICIAL CODE SEC. 240(A). 

FN2  INTERNAL REVENUE CODE: 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME.  IN COMPUTING NET INCOME
THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     .         .         .         .         . 

"(B)  INTEREST.  - ALL INTEREST PAID OR ACCRUED WITHIN THE TAXABLE
YEAR ON INDEBTEDNESS  ..." 

"SEC. 115.  DISTRIBUTIONS BY CORPORATIONS.  (A)  DEFINITION OF
DIVIDEND.  - THE TERM 'DIVIDEND' WHEN USED IN THIS CHAPTER (EXCEPT IN
COMPANIES) MEANS ANY DISTRIBUTION MADE BY A CORPORATION TO ITS
SHAREHOLDERS, WHETHER IN MONEY OR IN OTHER PROPERTY, (1) OUT OF ITS
EARNINGS OR PROFITS ACCUMULATED AFTER FEBRUARY 28, 1913, OR (2) OUT OF
THE EARNINGS OR PROFITS OF THE TAXABLE YEAR  ..."    TREASURY
REGULATIONS 103: 

"SEC. 19.23(B)-1.  INTEREST.  - INTEREST PAID OR ACCRUED WITHIN THE
YEAR ON INDEBTEDNESS MAY BE DEDUCTED FROM GROSS INCOME  ... 

     .         .   .         .         .    "SO-CALLED INTEREST ON
PREFERRED STOCK, WHICH IS IN REALITY A DIVIDEND THEREON, CANNOT BE
DEDUCTED IN COMPUTING NET INCOME  ...." 

SEE REVENUE ACTS OF 1936 AND 1938, 49 STAT. 1648, 1659, 52 STAT. 447,
460, AND TREASURY REGULATIONS 94, ART. 23(B)-1, AND 101, ART. 23(B)-1. 

FN3  COMPARE THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON
LAW, CH. V, WITH HOLMES, THE COMMON LAW, PP. 123-129.  1 HOLDSWORTH,
HISTORY OF ENGLISH LAW, 298, 312; DICKINSON, ADMINISTRATIVE JUSTICE, C.
III, P. 55: 

"IN TRUTH, THE DISTINCTION BETWEEN 'QUESTIONS OF LAW' AND 'QUESTIONS
OF FACT' REALLY GIVES LITTLE HELP IN DETERMINING HOW FAR THE COURTS
WILL REVIEW; AND FOR THE GOOD REASON THAT THERE IS NO FIXED
DISTINCTION.  THEY ARE NOT TWO MUTUALLY EXCLUSIVE KINDS OF QUESTIONS,
BASED UPON A DIFFERENCE OF SUBJECT-MATTER.  MATTERS OF LAW GROW
DOWNWARD INTO ROOTS OF FACT, AND MATTERS OF FACT REACH UPWARD, WITHOUT
A BREAK, INTO MATTERS OF LAW.  THE KNIFE OF POLICY ALONE EFFECTS AN
ARTIFICIAL CLEAVAGE AT THE POINT WHERE THE COURT CHOOSES TO DRAW THE
LINE BETWEEN PUBLIC INTEREST AND PRIVATE RIGHT." 

FN4  R.S. SEC. 3224; 26 U.S.C. SEC. 3653; HEINER V. DIAMOND ALKALI
CO., 288 U.S. 502; CARY V. CURTIS, 3 HOW.  236. 

FN5  S. REP. NO. 398, 68TH CONG., 1ST SESS., P. 9. 

FN6  H. REP. NO. 179, 68TH CONG., 1ST SESS., P. 8; 44 STAT. 110, SEC.
1003(B); H. REP. NO. 1, 69TH CONG., 1ST SESS., P. 17; S. REP. NO. 52,
69TH CONG., 1ST SESS., P. 34. 

WHILE ESTABLISHING A COMPLETE SYSTEM OF REVIEW, IT HAS ALL ALONG BEEN
RECOGNIZED THAT THE TAXPAYER COULD SECURE A JURY TRIAL OF FACT ISSUES,
IF HE CHOSE TO PAY AND SUE FOR RECOVERY.  S. REP. NO. 52, 69TH CONG.,
1ST SESS., P. 37.  DOBSON V. COMMISSIONER, 320 U.S. 489, 495. 

FN7  H. REP. NO. 1, 69TH CONG., 1ST SESS., P. 19-20: 

"COURT REVIEW - QUESTIONS OF FACT AND LAW.  - THE PROCEDURE IS MADE
TO CONFORM AS NEARLY AS MAY BE TO THE PROCEDURE IN THE CASE OF AN
ORIGINAL ACTION IN A FEDERAL DISTRICT COURT.  INASMUCH AS THE
COMPLICATED AND TECHNICAL FACTS GOVERNING TAX LIABILITY REQUIRE A
DETERMINATION BY A BODY OF EXPERTS, THE REVIEW IS TAKEN DIRECTLY TO AN
APPELLATE COURT, JUST AS, FOR INSTANCE, IN THE CASE OF ORDERS OF THE
FEDERAL TRADE COMMISSION, AND ORDERS OF THE SECRETARY OF AGRICULTURE
UNDER THE PACKERS AND STOCKYARDS ACT.  IN VIEW OF THE GRANT OF
EXCLUSIVE POWER TO THE BOARD FINALLY TO DETERMINE THE FACTS UPON WHICH
TAX LIABILITY IS BASED, SUBDIVISION (B) OF SECTION 914 LIMITS THE
REVIEW ON APPEAL TO WHAT ARE COMMONLY KNOWN AS QUESTIONS OF LAW.  THE
COURT UPON REVIEW MAY CONSIDER, FOR EXAMPLE, QUESTIONS AS TO THE
CONSTITUTIONALITY OF THE SUBSTANTIVE LAW APPLIED, THE CONSTITUTIONALITY
OF THE PROCEDURE USED, FAILURE TO OBSERVE THE PROCEDURE REQUIRED BY
LAW, THE PROPER INTERPRETATION AND APPLICATION OF THE STATUTE OR ANY
REGULATION HAVING THE FORCE OF LAW, THE EXISTENCE OF AT LEAST SOME
EVIDENCE TO SUPPORT THE FINDINGS OF FACT, AND THE VALIDITY OF ANY
RULING UPON THE ADMISSIBILITY OF EVIDENCE (SEE SUBDIVISION (A) OF
ACT AS PASSED.)  THE COURT, THEREFORE, MAY ADEQUATELY CONTROL THE
ACTION OF THE ADMINISTRATIVE OFFICER OR AGENCY, BUT WILL NOT BE
BURDENED WITH THE DUTY OF SUBSTITUTING ITS OPINION FOR THAT OF THE
BOARD UPON THE EVIDENCE." 

THE REFERENCE TO THE FEDERAL TRADE COMMISSION AND TO THE PACKERS AND
STOCKYARDS ACT WAS TO SHOW THE CHOICE OF A CIRCUIT COURT OF APPEALS FOR
JUDICIAL REVIEW AND WAS NOT INTENDED TO SUGGEST THE ADOPTION FOR THE
TAX COURT REVIEW OF ANY STANDARD OF SCOPE OF REVIEW. 

FN8 DICKINSON, ADMINISTRATIVE JUSTICE, 312; PAUL, DOBSON V.
COMMISSIONER:  THE STRANGE WAYS OF LAW AND FACT, 57 HARV. L.R. 753,
826, 832, 840; BROWN, FACT AND LAW IN JUDICIAL REVIEW, 56 HARV. L.R.
899, 904. 

FN9  COMPARE HELVERING V. F. & R. LAZARUS CO., 308 U.S. 252, 255;
WILMINGTON TRUST CO. V. HELVERING, 316 U.S. 164, 167; HELVERING V.
STOCK YARDS CO., 318 U.S. 693, 700, 702; EQUITABLE SOCIETY V.
COMMISSIONER, 321 U.S. 560, 563; COMMISSIONER V. SCOTTISH AMERICAN CO.,
323 U.S. 119. 

MR. JUSTICE BLACK CONCURS IN THE RESULT IN NO. 47.  HE IS OF THE
OPINION THAT NO. 36 SHOULD BE AFFIRMED FOR THE REASONS GIVEN BY THE
CIRCUIT COURT OF APPEALS, 146 F.2D 466. 

MR. JUSTICE BURTON CONCURS IN THE RESULT IN THE KELLEY CASE BUT
DISSENTS FROM THE RESULT IN THE TALBOT MILLS CASE ON THE GROUNDS STATED
IN THE DISSENTING OPINION OF MAGRUDER, J., IN THE CIRCUIT COURT OF
APPEALS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE RUTLEDGE. 

I THINK THE JUDGMENTS IN BOTH CASES SHOULD BE AFFIRMED.  ON THE
RECORDS PRESENTED, I CAN SEE NO SATISFACTORY BASIS FOR DECIDING ONE
CASE ONE WAY AND THE OTHER DIFFERENTLY.  AND I AGREE WITH THE COURTS OF
APPEALS THAT, ON THE SUBSTANTIALLY IDENTICAL FACTS, THE PAYMENTS WERE
DIVIDENDS AND NOT INTEREST. 

IN THE FIRST PLACE, I DO NOT BELIEVE THAT CONGRESS HAS AUTHORIZED THE
TAX COURT TO MAKE OR THE REVIEWING COURTS TO SUSTAIN DIRECTLY
CONFLICTING DETERMINATIONS OF TAX LIABILITY IN IDENTICAL FACT
SITUATIONS.  NOR, IN MY OPINION, WAS THIS THE PURPOSE OR EFFECT OF THE
DOBSON DECISIONS, 320 U.S. 489.  SO TO REGARD THEM OR THE STATUTE
NULLIFIES THE RIGHT TO REVIEW EXPRESSLY GIVEN BY CONGRESS.  MOREOVER
THAT VIEW DESTROYS THE VERY UNIFORMITY WHICH DOBSON SOUGHT,
TRANSFERRING THE CONFLICT OF DECISION FROM THE COURTS OF APPEALS BACK
TO THE TAX COURT, BY MAKING THE CONFLICTING DECISIONS OF ITS SIXTEEN
DIVISIONS FINAL.  FN1  THIS AFFORDS RELIEF TO THE TAXPAYER FROM
JUDICIAL REVIEW AND TO THE COURTS FROM JUDICIALLY REVIEWING.  BUT IT
DEFIES CONGRESS' MANDATE FOR REVIEW AND, WHAT IS MORE, PERPETUATES
CHAOS IN THE LAW. 

ALL THIS PRESUPPOSES, OF COURSE, THAT THE RECORDS NOW HERE PRESENT
FACT SITUATIONS IDENTICAL IN ALL MATERIAL RESPECTS.  THAT IS TRUE IN MY
JUDGMENT.  IT IS HARDLY NECESSARY TO ATTEMPT DEMONSTRATION.  BUT,
BESIDES REFERRING TO THE OPINIONS OF THE COURTS OF APPEALS FOR THE
SMALL DETAILS OF THE FACTS AND THEIR MINUTE DIFFERENCES,  FN2  IT MAY
BE NOTED THAT THERE WAS NO QUESTION OF CREDIBILITY.  SUBSTANTIALLY ALL
OF THE EVIDENTIARY FACTS WERE STIPULATED IN BOTH CASES.  NOR IS THERE
ANY FINDING IN EITHER CASE THAT THE ARRANGEMENTS WERE A SHAM.  CF.
GREGORY V. HELVERING, 293 U.S. 465.  APART FROM SUCH CONSIDERATIONS,
THE MATERIAL FACTS IN MY OPINION WERE NOT SUBSTANTIALLY DIFFERENT IN
ANY RESPECT SUFFICIENT TO SUPPORT ONE ULTIMATE CONCLUSION, WHETHER
LABELLED OF "LAW," OF "FACT," OR "MIXED," FOR ONE CASE AND THE OPPOSITE
CONCLUSION FOR THE OTHER. 

THAT IS TRUE WHETHER THE FINAL CONCLUSION OF "INTEREST" OR "DIVIDEND"
IS TO BE DRAWN FROM A MINUTE COMPARISON OF, AND EFFORT TO
DIFFERENTIATE, THE MULTITUDINOUS MICROSCOPIC DETAILS BY WHICH IN BOTH
CASES IT WAS SOUGHT TO CONVERT STOCK INTO "DEBENTURES" OR "REGISTERED
NOTES," WITHOUT LOSING ANY OF THE STOCK'S SUBSTANTIAL ADVANTAGES; OR,
ON THE OTHER HAND, THE FINAL PLUNGE OF JUDGMENT IS TO BE MADE FROM
WHOLESALE WEIGHING OF THE EVIDENTIARY FACTS.  NEITHER APPROACH
DISCLOSES FACTORS OF SUBSTANTIAL DIFFERENCE IN WHAT WAS DONE SUFFICIENT
TO SUSTAIN CONTRARY JUDGMENTS. 

THERE WERE SOME HIGHLY TECHNICAL DIFFERENCES IN THE TWO TYPES OF
"SECURITY" WHICH WERE DEVISED TO REPLACE THE PRE-EXISTING PREFERRED
STOCK ISSUES.  BUT IN BOTH INSTANCES THE ORIGINAL STOCK AND THE
REPLACING SECURITY WERE CLOSELY HELD.  THERE WAS NO SUBSTANTIAL CHANGE
IN THE DISTRIBUTION AFTER THE "REORGANIZATION."  THE DIFFERENCE BETWEEN
THE STOCK AND THE SUBSTITUTED SECURITY WAS SO SMALL, IN ITS EFFECT UPON
THE HOLDERS' SUBSTANTIAL RIGHTS, THAT FOR ALL PRACTICAL PURPOSES IT WAS
NEGLIGIBLE.  FOR EXAMPLE, A REMOTE RIGHT TO SUE TO ENFORCE THE
OBLIGATION, DEFERRED IN ONE CASE FOR 25 YEARS, TOOK THE PLACE OF THE
HOLDER'S RIGHT TO SHARE IN THE CORPORATION'S ASSETS ON DISSOLUTION OR
WINDING UP.  MEANWHILE "INTEREST" WAS HOOKED IN LARGE PART TO NET
ANNUAL EARNINGS AND WAS MADE ENTIRELY SUBJECT TO THE DIRECTORS' POWER
TO SUSPEND PAYMENT UNTIL THE ULTIMATE MATURITY DATE.  THE SHORTENED
STORY IS THAT THE PREFERRED SHAREHOLDERS WHO WENT INTO THE WASH CAME
OUT SUBSTANTIALLY, FOR ALL PURPOSES MATERIAL TO ANY TAX DETERMINATION
AND IT MAY BE FOR PRACTICALLY ALL OTHERS, JUST ABOUT WHAT THEY WERE
WHEN THEY WENT IN. 

THE COURT INDEED DOES NOT ATTEMPT TO FIND A SUBSTANTIAL
DIFFERENTIATING FACTOR OTHER THAN IN THE TAX COURT'S "APPRAISAL OF ALL
THE FACTS," IN OTHER WORDS ITS ULTIMATE CONCLUSION.  THAT IS TRUE AS
BETWEEN THE TWO CASES AND ALSO AS AFFECTS THE POSITIONS OF THE
RESPECTIVE SHAREHOLDERS BEFORE AND AFTER THE WASH.  RATHER THE OPINION
CONCEDES THAT IN EACH CASE THE CIRCUMSTANCES WERE SUCH THAT DETERMINERS
REASONABLY COULD CONCLUDE THAT THE SO-CALLED ANNUAL PAYMENTS WERE
EITHER INTEREST OR DIVIDENDS.  HENCE, IT SEEMS TO FOLLOW, THE
CONCLUSION MAY BE DRAWN IN SQUARELY CONFLICTING WAYS, IF THE TAX COURT
SEES FIT SO TO DRAW IT; AND IT IS IMMATERIAL THAT NO FACTOR OF
SUBSTANTIAL DIFFERENCE IS OR CAN BE POINTED OUT. 

ONE MIGHT ENTERTAIN THE VIEW THAT IN A CLOSE SITUATION THE TAX
COURT'S JUDGMENT SHOULD BE ACCEPTED WHATEVER WAY THE DIE WERE CAST,
ALTHOUGH REVIEWING COURTS MIGHT DIFFER ON THE DIRECTION.  BUT IT WOULD
NOT FOLLOW, AND IN MY JUDGMENT SHOULD NOT, THAT THEY ARE POWERLESS WHEN
THE THROW IS IN OPPOSITE DIRECTIONS AT THE SAME TIME.  WHEN THIS
OCCURS, IN MY OPINION A "CLEAR-CUT" QUESTION OF LAW IS PRESENTED,
RISING ABOVE THE RUBRIC OF "EXPERT ADMINISTRATIVE DETERMINATION."  THE
MORE APT CHARACTERIZATION WOULD BE "EXPERT ADMINISTRATIVE FOG." 

I THINK THE COURTS OF APPEALS AND WE ARE BOUND TO REVIEW SUCH CASES;
THEY BY PLAIN MANDATE OF SEC. 1141(C)(1) OF THE CODE, WE BY THAT
PROVISION OF OUR RULES MAKING CONFLICT BETWEEN CIRCUITS "SPECIAL AND
IMPORTANT REASON" FOR GRANTING CERTIORARI.  RULE 38-5(B).  CONFLICT IS
NOT REMOVED SIMPLY BECAUSE JUDGMENTS OF THE COURTS OF APPEALS
JUDICIALLY FORMALIZE THE CONTRARY ULTIMATE, BUT NEVERTHELESS
ADMINISTRATIVE, CONCLUSIONS OF THE TAX COURT.  WHEN NO FACTS CAN BE
POINTED TO WHICH ARE SUFFICIENT TO DISTINGUISH TAX COURT DECISIONS IN
LEGAL EFFECT, EXCEPT THAT THE TAX COURT HAS DECIDED DIFFERENTLY IN TWO
CASES, THE COURTS OF APPEALS AND WE ARE BOUND BY LAW AND BY OUR DUTY TO
EXERCISE A SOUND DISCRETION IN REVIEW TO RESOLVE THE CONFLICT. 

ANOTHER REASON CONVINCES ME THAT BOTH JUDGMENTS SHOULD BE AFFIRMED. 
WHAT HAS BEEN SAID APPLIES TO CONFLICTING DETERMINATIONS OF THE TAX
COURT, WHATEVER THE PARTICULAR LINE WHICH IS TO BE DRAWN AND REGARDLESS
OF ITS GENERAL LOCATION.  BUT IN THESE CASES I THINK THAT AS A MATTER
OF LAW THE LINE SHOULD NOT BE LOCATED WHERE THE TAX COURT HAS PLACED
IT. 

TAX LIABILITY SHOULD DEPEND UPON THE SUBTLE REFINEMENTS OF CORPORATE
FINANCE NO MORE THAN IT DOES UPON THE NICETIES OF CONVEYANCING.  FN3
SHEER TECHNICALITIES SHOULD HAVE NO MORE WEIGHT TO CONTROL FEDERAL TAX
CONSEQUENCES IN ONE INSTANCE THAN IN THE OTHER.  THE TAXING STATUTE
DRAWS THE LINE BROADLY BETWEEN "INTEREST" AND "DIVIDEND."  THIS
REQUIRES ONE WHO WOULD CLAIM THE INTEREST DEDUCTION TO BRING HIMSELF
CLEARLY WITHIN THE CLASS FOR WHICH IT WAS INTENDED.  FN4  THAT IS NOT
DONE WHEN THE USUAL SIGNPOSTS BETWEEN BONDS AND STOCK ARE SO
OBLITERATED THAT THEY BECOME INVISIBLE OR POINT EQUALLY IN BOTH
DIRECTIONS AT THE SAME TIME. 

"DIVIDEND" AND "INTEREST," "STOCK" AND "BOND," "DEBENTURE" OR "NOTE,"
ARE CORRELATIVE AND CLEARLY IDENTIFIABLE CONCEPTIONS IN THEIR SIMPLER
AND MORE TRADITIONAL EXEMPLIFICATIONS.  BUT THEIR DISTINGUISHING
FEATURES VANISH WHEN ASTUTE MANIPULATION OF THE BROAD PERMISSIONS OF
MODERN INCORPORATION ACTS RESULTS IN A "SECURITY DEVICE" WHICH IS IN
TRUTH NEITHER STOCK NOR BOND, BUT THE HALF-BREED OFFSPRING OF BOTH.  AT
TIMES ONLY THE LABEL ENABLES ONE TO ASCERTAIN WHAT THE MANIPULATOR
INTENDED TO BRING FORTH.  BUT INTENTION CLARIFIED BY LABEL ALONE IS NOT
ALWAYS LEGALLY EFFECTIVE FOR THE PURPOSE IN MIND.  FN5  AND THERE IS
SCARCELY ANY LIMIT TO THE EXTENT OR VARIETY TO WHICH THIS KIND OF
INTERMINGLING OF THE TRADITIONAL FEATURES OF STOCK AND BONDS OR OTHER
FORMS OF DEBT MAY GO, AS THE BOOKS ABUNDANTLY TESTIFY.  FN6  THE
TAXPAYER SHOULD SHOW MORE THAN A LABEL OR A HYBRID SECURITY TO ESCAPE
HIS LIABILITY.  HE SHOULD SHOW AT THE LEAST A SUBSTANTIAL PREPONDERANCE
OF FACTS POINTING TO "INTEREST" RATHER THAN "DIVIDENDS." 

SOMETHING MORE IS AT STAKE IN THESE CASES THAN NICE DISTINCTIONS
BETWEEN "STOCK" AND "BONDS," ON THE ONE HAND, OR BETWEEN ULTIMATE
CONCLUSIONS OF "FACT" AND "LAW" OR "MIXED FACT AND LAW," ON THE OTHER,
JUST AS WAS TRUE IN THE CONVEYANCING CASES.  THE BORDER CUTTING ACROSS
ONE SET OF NORMALLY OPPOSING CONCEPTIONS MAY BE DELIBERATELY OBSCURED
AND MADE INTO A NO MAN'S LAND AS READILY AS THAT INVOLVED IN THE
OTHER.  WHEN THIS HAPPENS, THE FINAL LINK IN THE CHAIN OF JUDGMENT IS
DECISIVE, WHATEVER ITS LABEL.  FN7  IF THE ULTIMATE CONCLUSION OF THE
TAX COURT OR ITS DIVISIONS CAN BE MADE IN EXACTLY OPPOSING WAYS, AND
MUST BE LEFT UNDISTURBED, WITHOUT SUBSTANTIAL DIFFERENTIATING FACTS, OR
WHEN HYBRID ARRANGEMENTS BEAR TAX INDICIA EQUALLY WITH MARKS OF NON
TAXABILITY, NOT ONLY IS THE STATUTORY REVIEW NULLIFIED.  THE RIGHT OF
TAXPAYERS TO BE TREATED WITH EQUAL JUSTICE BEFORE THE LAW IS DENIED. 
FN1  THE INTERNAL REVENUE CODE PROVIDES THAT THE CHAIRMAN (NOW
PRESIDING JUDGE OF THE TAX COURT, SEC. 1100) MAY "FROM TIME TO TIME
DIVIDE THE BOARD INTO DIVISIONS OF ONE OR MORE MEMBERS" AND "A MAJORITY
OF THE MEMBERS OF THE BOARD OR OF ANY DIVISION THEREOF SHALL CONSTITUTE
A QUORUM FOR THE TRANSACTION OF THE BUSINESS OF THE BOARD OR OF THE
DIVISION, RESPECTIVELY."  SECS. 1103(C), (D).  BY SECS. 1118(B) THE
REPORT OF A DIVISION BECOMES THE REPORT OF THE BOARD WITHIN 30 DAYS
UNLESS THE CHAIRMAN DIRECTS THAT IT BE REVIEWED BY THE BOARD.    EACH
OF THE TWO CASES BEFORE US WAS DECIDED BY ONLY ONE TAX COURT JUDGE, A
DIFFERENT JUDGE IN EACH CASE.  SEE GRISWOLD, THE NEED FOR A COURT OF
TAX APPEALS (1944) 57 HARV. L. REV. 1153, 1170-1172. 

FN2  146 F.2D 466; 146 F.2D 809. 

FN3  HELVERING V. HALLOCK, 309 U.S. 106, 117-118; SMITH V.
SHAUGHNESSY, 318 U.S. 176, 180. 

FN4  INTERSTATE TRANSIT LINES V. COMMISSIONER, 319 U.S. 590, 593; SEE
ALSO NEW COLONIAL CO. V. HELVERING, 292 U.S. 435, 440; DEPUTY V. DU
PONT, 308 U.S. 488, 493; MCDONALD V. COMMISSIONER, 323 U.S. 57, 60. 

FN5  IN RE FECHHEIMER FISHEL CO., 212 F. 357, 360; MATTER OF COLLIER,
112 MISC. 70, 182 N.Y.S. 555; CASS V. REALTY SECURITIES CO., 148 APP.
DIV. 96, 100, 132 N.Y.S. 1074, AFFIRMED, 206 N.Y. 649, 99 N.E. 1105;
SEE COMMISSIONER V. SCHMOLL FILS ASSOCIATED, INC., 110 F.2D 611. 

FN6  SEE HANSEN, HYBRID SECURITIES:  A STUDY OF SECURITIES WHICH
COMBINE CHARACTERISTICS OF BOTH STOCKS AND BONDS (1936) 13 N.Y.U.L.Q.
407; UHLMAN, THE LAW OF HYBRID SECURITIES (1938) 23 WASH. U.L.Q. 182;
JEWEL TEA CO. V. UNITED STATES, 90 F.2D 451, 452-453. 

FN7  THE LEGAL ELEMENT IS NOT ELIMINATED MERELY BECAUSE IT APPEARS IN
"A MOLECULAR COMBINATION OF FACT AND LAW WHICH DEFIES SEPARATION." 
BERRY V. IRVING PLACE CORP., 52 F.SUPP.  875, 881.  IT MAY BE THE
DOMINANT ELEMENT IN THE COMBINATION.  WHEN IT IS, MINUTIAE OF FACTUAL
DIFFERENCE SHOULD NOT GOVERN RESULT OR SUSTAIN CONFLICTING OUTCOMES. 
..END :



MASON V. PARADISE DISTRICT, 326 U.S. 536 


NO. 306.  SUBMITTED DECEMBER 4, 1945.  - DECIDED JANUARY 7, 1946.  - 149
F.2D 334, AFFIRMED. 


1.  A PLAN FOR COMPOSITION OF DEBTS OF AN IRRIGATION DISTRICT UNDER
CHAPTER IX OF THE BANKRUPTCY ACT PROVIDED THAT THE HOLDERS OF
OUTSTANDING BONDS WERE TO BE PAID IN CASH 52.521 CENTS ON EACH DOLLAR
OF PRINCIPAL, EXCLUSIVE OF INTEREST, THE CASH TO BE SUPPLIED THROUGH A
LOAN FROM THE RECONSTRUCTION FINANCE CORPORATION, WHICH WAS TO RECEIVE
NEW OR REFUNDING 4 PER CENT BONDS IN THE PRINCIPAL AMOUNT OF ITS LOAN. 
CREDITORS OWNING NOT LESS THAN 92 PER CENT IN AMOUNT OF THE BONDS
ACCEPTED THE PLAN, CONSENTED TO THE FILING OF THE PETITION, AND
DEPOSITED THEIR BONDS UNDER THE PLAN.  THE R.F.C. DID NOT ADVANCE THE
FUNDS TO THE IRRIGATION DISTRICT BUT PURCHASED THE BONDS AT THE
COMPOSITION FIGURE AND REGISTERED THEM IN ITS NAME.  THE OLD BONDS SO
ACQUIRED REMAINED OBLIGATIONS OF THE IRRIGATION DISTRICT, WERE HELD BY
THE R.F.C. AS SECURITY FOR ITS ADVANCES, AND WERE TO BE EXCHANGED UNDER
THE PLAN FOR 4 PER CENT REFUNDING BONDS IN THE FULL AMOUNT OF ITS CASH
ADVANCES.  THE R.F.C., AS HOLDER OF ABOUT 92 PER CENT OF THE BONDS,
APPROVED THE PLAN PRIOR TO THE FILING OF THE PETITION.  THERE WAS FULL
DISCLOSURE TO THE SECURITY HOLDERS AND TO THE COURT.  THE BANKRUPTCY
COURT, FINDING THAT ALL OF THE OUTSTANDING BONDS WERE OF ONE CLASS,
THAT THE REQUISITE PERCENTAGE OF BONDHOLDERS HAD APPROVED THE PLAN,
THAT THE IRRIGATION DISTRICT WAS UNABLE TO MEET ITS DEBTS AS THEY
MATURED, THAT THE PLAN WAS FAIR, EQUITABLE AND FOR THE BEST INTERESTS
OF CREDITORS, AND THAT IT DID NOT DISCRIMINATE UNFAIRLY IN FAVOR OF ANY
CREDITOR, APPROVED THE PLAN.  MASON, WHO OWNED SOME OF THE OLD BONDS
AND HAD OPPOSED THE PLAN, APPEALED, CONTENDING THAT, SINCE HE AND THE
R.F.C. WERE PUT IN THE SAME CLASS, THEY SHOULD BE TREATED ALIKE AND HE
SHOULD RECEIVE 4 PER CENT REFUNDING BONDS, INSTEAD OF 52.521 CENTS IN
CASH ON EACH DOLLAR OF PRINCIPAL.  THERE WAS NO SHOWING THAT THE FULL
VALUE OF HIS CLAIM WAS MORE THAN 52.521 CENTS ON THE DOLLAR.  HELD THAT
THIS COURT IS UNABLE TO SAY THAT THE BANKRUPTCY COURT WAS NOT WARRANTED
IN FINDING THAT THE CASH OFFER WAS FAIR AND EQUITABLE.  P. 546. 

2.  THE MERE FACT THAT THE R.F.C. HOLDS THE VAST MAJORITY OF ALL THE
BONDS AND IS IN A DOMINANT POSITION IN THE REORGANIZATION DOES NOT MEAN
THAT IT IS ENTITLED TO PREFERRED TREATMENT.  P. 541. 

3.  HOWEVER, THOSE WHO PUT NEW MONEY INTO A DISTRESSED ENTERPRISE MAY
BE GIVEN PREFERRED TREATMENT.  PP. 541, 543. 

4.  CONGRESS INTENDED THE R.F.C. TO BE TREATED IN SUCH SITUATIONS AS
A CREDITOR.  P. 542. 

5.  THE SECURITIES ACQUIRED BY THE R.F.C. PURSUANT TO THE PLAN OF
COMPOSITION ARE NOT EXTINGUISHED AND MAY BE COMPUTED IN DETERMINING THE
PERCENTAGE OF CONSENTING CREDITORS NECESSARY FOR THE FILING OF A
PETITION UNDER CHAPTER IX.  P. 542. 

6.  SINCE THERE WAS NO SHOWING THAT 52.521 CENTS IN CASH WAS NOT AS
ADVANTAGEOUS AS 52.521 CENTS IN REFUNDING BONDS, IT IS IMPOSSIBLE FOR
THIS COURT TO SAY THAT, ALTHOUGH A DIFFERENCE IN TREATMENT WAS
WARRANTED, ANY DISCRIMINATION IN FAVOR OF THE R.F.C. WAS SO GREAT AS TO
BE UNFAIR.  P. 543. 

7.  WHILE THE PROVISION OF 11 U.S.C. SEC. 403(B) TO THE EFFECT THAT
HOLDERS OF ALL CLAIMS PAYABLE WITHOUT PREFERENCE FROM THE SAME SOURCE
SHALL BE PUT IN ONE CLASS STATES THE GENERAL RULE, THE BANKRUPTCY COURT
HAS THE POWER TO MAKE A DIFFERENT CLASSIFICATION WHERE INEQUITABLE
RESULTS WOULD OTHERWISE OBTAIN.  P. 544. 

8.  UNDER SEC. 403(J) THE SECURITIES ACQUIRED BY THE R.F.C. MAY BE
INCLUDED IN THE PERCENTAGE OF CONSENTING SECURITIES NECESSARY FOR THE
FILING OF A PETITION UNDER CHAPTER IX. P. 544. 

9.  SECTION 403(D), REQUIRING APPROVAL BY CREDITORS "HOLDING AT LEAST
TWO-THIRDS OF THE AGGREGATE AMOUNT OF CLAIMS OF ALL CLASSES," IS
CONSTRUED TO MEAN TWO-THIRDS OF THE TOTAL AMOUNT OF ALL CLAIMS IN ALL
CLASSES AND NOT TWO-THIRDS OF EACH CLASS.  P. 544. 

10.  THE PURPOSE OF THIS LEGISLATION TO GIVE TAXING AGENCIES A
WORKABLE AND PRACTICAL METHOD OF OBTAINING RELIEF FROM OPPRESSIVE DEBT
BURDENS WOULD BE THWARTED OR IMPEDED IF CHAPTER IX WERE GIVEN A
CONSTRUCTION WHICH PLACED THE FATE OF COMPOSITION PLANS IN THE HANDS OF
MINORITY, NON-CONSENTING BONDHOLDERS.  P. 545. 

11.  PROVISION "FOR THE PROTECTION" OF THE CLAIMS OF NON-ASSENTING
CREDITORS, AS PROVIDED IN SEC. 403(D), COULD BE MADE BY LEAVING THEM
UNDISTURBED; BUT, IF THE NON-ASSENTING CREDITORS HAD THE OPTION TO COME
IN UNDER THE PLAN OR TO RETAIN THEIR OLD SECURITIES, THE DEBTOR WOULD
BE UNABLE TO GET THE RELIEF WHICH CHAPTER IX AFFORDS OR COULD DO SO
ONLY ON SUCH TERMS AS A MINORITY DICTATED.  P. 545. 

12.  ASSUMING THAT PROVISION "FOR THE PROTECTION" OF THE CLAIMS OF
NON-ASSENTING CREDITORS COULD BE MADE UNDER SEC. 403(D) IN WAYS OTHER
THAN BY LEAVING THE CLAIMS UNDISTURBED, THERE WOULD SEEM TO BE NO
REASON WHY PAYMENT IN CASH OF THE FULL VALUE OF THEIR CLAIMS WOULD NOT
BE ADEQUATE.  P. 546. 

MASON V. PARADISE IRRIGATION DISTRICT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 704, TO REVIEW AFFIRMANCE OF A DECREE APPROVING
A PLAN OF COMPOSITION OF THE DEBTS OF AN IRRIGATION DISTRICT UNDER
CHAPTER IX OF THE BANKRUPTCY ACT - LIMITED TO THE QUESTION WHETHER IT
WAS PROPER TO APPROVE A PLAN WHICH TREATED PETITIONER DIFFERENTLY FROM
THE RECONSTRUCTION FINANCE CORPORATION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT IS ORGANIZED UNDER THE LAWS OF THE STATE OF CALIFORNIA AND
LOCATED IN THE COUNTY OF BUTTE OF THAT STATE.  IT EXPERIENCED FINANCIAL
DIFFICULTIES IN THE 1930'S.  IT HAD OUTSTANDING $476,000 PRINCIPAL
AMOUNT OF BONDS BEARING INTEREST AT THE RATE OF 6 PER CENT.  BEING
UNABLE TO COLLECT TAXES SUFFICIENT TO SERVICE THE BONDS, IT TRIED TO
WORK OUT A DEBT READJUSTMENT PROGRAM.  IT APPLIED FOR A LOAN FROM THE
RECONSTRUCTION FINANCE CORPORATION.  A LOAN OF $252,500 WAS ARRANGED,
PROVIDED ALL THE HOLDERS OF THE OUTSTANDING BONDS AGREED TO THE
REFINANCING PROGRAM.  THE OFFER TO THE BONDHOLDERS WAS THAT THEY
SURRENDER THEIR BONDS FOR 52.521 CENTS ON EACH DOLLAR OF PRINCIPAL,
EXCLUSIVE OF INTEREST - AN AMOUNT WHICH RESPONDENT DEEMED FAIR TO THE
BONDHOLDERS AND TO THE OWNERS OF THE LAND IN THE DISTRICT.  THE HOLDERS
OF ABOUT 92 PER CENT OF THE PRINCIPAL AMOUNT OF THE OUTSTANDING BONDS
AGREED.  RESPONDENT, BEING UNABLE TO OBTAIN THE ASSENT OF THE HOLDERS
OF THE REMAINING BONDS, FILED ITS PETITION UNDER CH. IX OF THE
BANKRUPTCY ACT LATE IN 1937.  50 STAT. 653, 52 STAT. 939, 54 STAT. 667,
11 U.S.C. SEC. 401.  IT SUBMITTED WITH ITS PETITION ITS PLAN OF
COMPOSITION OR DEBT READJUSTMENT AND PRAYED, INTER ALIA, THAT THE PLAN
BE APPROVED.  THE PLAN PROVIDED THAT THE HOLDERS OF THE OUTSTANDING
BONDS BE PAID IN CASH 52.521 CENTS ON EACH DOLLAR OF PRINCIPAL,
EXCLUSIVE OF INTEREST; THAT THE CASH WAS TO BE SUPPLIED FROM THE
PROCEEDS OF A LOAN OF $252,500 FROM THE RECONSTRUCTION FINANCE
CORPORATION; THAT THE RECONSTRUCTION FINANCE CORPORATION WAS TO RECEIVE
NEW OR REFUNDING 4 PER CENT BONDS IN THE PRINCIPAL AMOUNT OF ITS LOAN,
AND 4 PER CENT ON ALL DISBURSEMENTS FROM THE DATE THEREOF UNTIL THE NEW
OR REFUNDING BONDS WERE ISSUED TO IT.  THE PETITION RECITED THAT THE
CREDITORS OWNING NOT LESS THAN 92 PER CENT IN AMOUNT OF THE BONDS HAD
ACCEPTED THE PLAN AND CONSENTED TO THE FILING OF THE PETITION.  FN1  IT
APPEARS THAT THE CONSENTING BONDHOLDERS HAD DEPOSITED THEIR BONDS UNDER
THE PLAN; THAT THE RECONSTRUCTION FINANCE CORPORATION DID NOT ADVANCE
THE FUNDS TO RESPONDENT BUT, ACTING THROUGH A BANK, PURCHASED THE BONDS
AT THE COMPOSITION FIGURE AND REGISTERED THE BONDS IN ITS NAME; THAT IN
ACCORDANCE WITH THE TERMS OF THE CONTRACT BETWEEN RESPONDENT AND THE
RECONSTRUCTION FINANCE CORPORATION, THE OLD BONDS SO ACQUIRED REMAINED
OBLIGATIONS OF RESPONDENT, WERE HELD BY THE RECONSTRUCTION FINANCE
CORPORATION AS SECURITY FOR ITS ADVANCES AND ARE TO BE EXCHANGED UNDER
THE PLAN FOR 4 PER CENT REFUNDING BONDS.  THE RECONSTRUCTION FINANCE
CORPORATION, AS HOLDER OF ABOUT 92 PER CENT OF THE BONDS, APPROVED THE
PLAN PRIOR TO THE FILING OF THE PETITION UNDER CH. IX. 

THE DISTRICT COURT FOUND THAT ALL OF THE OUTSTANDING BONDS WERE OF
ONE AND THE SAME CLASS,  FN2 THAT THE REQUISITE PERCENTAGE OF
BONDHOLDERS HAD APPROVED THE PLAN,  FN3  THAT RESPONDENT WAS UNABLE TO
MEETS ITS DEBTS AS THEY MATURED,  FN4  AND HELD THAT THE PLAN WAS FAIR,
EQUITABLE AND FOR THE BEST INTERESTS OF ITS CREDITORS AND DID NOT
UNFAIRLY DISCRIMINATE IN FAVOR OF ANY CREDITOR.  FN5  IT ACCORDINGLY
APPROVED THE PLAN.  FN6 

PETITIONER IS THE OWNER OF $29,000 PRINCIPAL AMOUNT OF THE OLD BONDS
WHO OPPOSED THE PLAN OF COMPOSITION.  HIS OBJECTIONS WERE NOT SUSTAINED
IN THE DISTRICT COURT.  THE CIRCUIT COURT OF APPEALS LIKEWISE OVERRULED
THEM.  149 F.2D 334.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI WHICH WE GRANTED BECAUSE OF A CONFLICT AMONG THE CIRCUIT
COURTS OF APPEALS,  FN7 LIMITED TO THE QUESTION WHETHER IT WAS PROPER
TO APPROVE A PLAN WHICH TREATED PETITIONER DIFFERENTLY FROM THE
RECONSTRUCTION FINANCE CORPORATION. 

PETITIONER ARGUES THAT SINCE HE AND THE RECONSTRUCTION FINANCE
CORPORATION WERE PUT IN THE SAME CLASS, THE RULE OF "EQUALITY BETWEEN
CREDITORS" APPLICABLE IN BANKRUPTCY PROCEEDINGS (CLARKE V. ROGERS, 228
U.S. 534, 548) REQUIRED THAT THEY BE TREATED ALIKE.  IN OTHER WORDS, HE
CONTENDS THAT INSTEAD OF BEING REQUIRED TO TAKE 52.521 CENTS IN CASH ON
EACH DOLLAR OF PRINCIPAL, HE SHOULD RECEIVE 4 PER CENT REFUNDING
BONDS. 

WE HELD IN AMERICAN UNITED INS. CO. V. AVON PARK, 311 U.S. 138, 147,
THAT THE PRINCIPLE OF EQUALITY BETWEEN CREDITORS GOVERNED COMPOSITIONS
UNDER CH. IX AS IT DID COMPOSITIONS UNDER THE OLD SEC. 12.  THE FACT
THAT THE RECONSTRUCTION FINANCE CORPORATION HOLDS THE VAST MAJORITY OF
ALL THE BONDS AND THEREFORE IS IN A DOMINANT POSITION IN THE
REORGANIZATION DOES NOT MEAN THAT IT IS ENTITLED TO PREFERRED
TREATMENT.  IT IS CLEAR THAT IT IS NOT.  AMERICAN UNITED INS. CO. V.
AVON PARK, SUPRA, P. 148.  THE RECONSTRUCTION FINANCE CORPORATION HAS
NOT BY PURCHASING BONDS IN THE MARKET ACQUIRED MERELY A SPECULATIVE
POSITION IN THE PLAN OF COMPOSITION.  NOR IS IT MERELY IN THE POSITION
OF A HOLDER OF A MAJORITY OF THE BONDS.  BY CONTRACT WITH THE DEBTOR IT
HAS UNDERWRITTEN THE WHOLE REFINANCING PROGRAM.  IT HAS VENTURED THE
CAPITAL NECESSARY TO EFFECTUATE THE PLAN OF COMPOSITION.  IT HAS LONG
BEEN RECOGNIZED IN REORGANIZATION LAW THAT THOSE WHO PUT NEW MONEY INTO
THE DISTRESSED ENTERPRISE MAY BE GIVEN A PARTICIPATION IN THE
REORGANIZATION PLAN REASONABLY EQUIVALENT TO THEIR CONTRIBUTION.  CASE
V. LOS ANGELES LUMBER PRODUCTS CO., 308 U.S. 106, 117, 121-122 AND
CASES CITED; ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448, 486-487. 
THAT RULE IS BASED ON PRACTICAL NECESSITIES.  WITHOUT THE INDUCEMENT
NEW MONEY COULD NOT BE OBTAINED. 

IT IS SAID, HOWEVER, THAT THE RECONSTRUCTION FINANCE CORPORATION WHEN
IT BECOMES THE HOLDER OF BONDS MUST BE TREATED ON THE BASIS THAT IT IS
A CREDITOR AND NOT AN OUTSIDE LENDER OF MONEY.  IT IS CLEAR THAT
CONGRESS INTENDED THE RECONSTRUCTION FINANCE CORPORATION TO BE TREATED
IN SITUATIONS LIKE THE PRESENT AS A CREDITOR.  SEC. 402 OF THE ACT
PROVIDES THAT "ANY AGENCY OF THE UNITED STATES HOLDING SECURITIES
ACQUIRED PURSUANT TO CONTRACT WITH ANY PETITIONER UNDER THIS CHAPTER
SHALL BE DEEMED A CREDITOR IN THE AMOUNT OF THE FULL FACE VALUE
THEREOF."  THE RECONSTRUCTION FINANCE CORPORATION IS SUCH AN AGENCY. 
SEC. 403(J) GIVES SECURITIES ACQUIRED, AS HERE, PURSUANT TO A PLAN OF
COMPOSITION PRIOR TO THE FILING OF A PETITION THE SAME RECOGNITION AS
ANY OTHER SECURITIES.  FN8  IT IS THUS APPARENT THAT SECURITIES
ACQUIRED BY THE RECONSTRUCTION FINANCE CORPORATION, PURSUANT TO A PLAN
OF COMPOSITION, ARE NOT EXTINGUISHED, REMAIN SECURITIES "AFFECTED BY
THE PLAN,"  FN9  AND MAY BE COMPUTED IN DETERMINING THE PERCENTAGE OF
CONSENTING CREDITORS NECESSARY FOR THE FILING OF A PETITION UNDER CH.
IX.  FN10  IF THE ACT WERE CONSTRUED AS REQUIRING THE RECONSTRUCTION
FINANCE CORPORATION IN SITUATIONS LIKE THE PRESENT TO BE TREATED AS
EVERY OTHER CREDITOR OF THE SAME CLASS, THE FACT THAT IT HAD
UNDERWRITTEN THE WHOLE REFINANCING PROGRAM WOULD BE CONSIDERED
IRRELEVANT.  BUT AS WE HAVE SEEN, HE WHO FURNISHES NEW CAPITAL TO A
DISTRESSED ENTERPRISE HAS LONG BEEN ACCORDED PREFERRED TREATMENT.  THE
RECONSTRUCTION FINANCE CORPORATION CONTRIBUTES SOMETHING THAT MASON
DOES NOT.  IT FURNISHES THE UNDERWRITING WHICH MAKES THE REFINANCING
POSSIBLE.  IT GIVES SOMETHING OF VALUE FOR THE PREFERRED TREATMENT
WHICH IT RECEIVES.  THE OTHER SECURITY HOLDERS OF THE SAME CLASS GIVE
NOTHING NEW.  THAT DIFFERENCE WARRANTS A DIFFERENCE IN TREATMENT.  CASE
V. LOS ANGELES LUMBER PRODUCTS CO., SUPRA; ECKER V. WESTERN PACIFIC R.
CORP., SUPRA.  THE PLAN, OF COURSE, MUST BE FAIR AND EQUITABLE AND IT
MUST "NOT DISCRIMINATE UNFAIRLY" IN FAVOR OF ANY CREDITOR.  SEC.
403(E).  A SECRET ADVANTAGE WOULD NOT MEET THAT TEST.  AMERICAN UNITED
INS. CO. V. AVON PARK, SUPRA.  BUT HERE THERE WAS FULL DISCLOSURE TO
THE SECURITY HOLDERS AND TO THE COURT.  PETITIONER RECEIVES 52.521
CENTS ON EACH DOLLAR OF PRINCIPAL AMOUNT OF HIS BONDS.  THE
RECONSTRUCTION FINANCE CORPORATION RECEIVES NEW AND REFUNDING BONDS IN
THE FACE AMOUNT OF ITS CASH ADVANCES.  IT IS, OF COURSE, POSSIBLE THAT
52.521 CENTS IN CASH MAY NOT BE AS ADVANTAGEOUS AN OFFER AS 52.521
CENTS IN NEW AND REFUNDING BONDS.  BUT THERE IS NO SHOWING THAT IT IS
NOT.  HENCE IT IS IMPOSSIBLE FOR US TO SAY THAT, ALTHOUGH A DIFFERENCE
IN TREATMENT WAS WARRANTED, ANY DISCRIMINATION IN FAVOR OF THE
RECONSTRUCTION FINANCE CORPORATION WAS SO GREAT AS TO BE UNFAIR. 

A DIFFERENT QUESTION ARISES WHEN WE COME TO THE CLASSIFICATION OF
CREDITORS FOR VOTING ON A PLAN OF COMPOSITION.  SEC. 403(B) PROVIDES
THAT THERE SHALL BE PUT IN ONE CLASS HOLDERS OF ALL CLAIMS PAYABLE
WITHOUT PREFERENCE FROM THE SAME SOURCE.  FN11  WHILE THIS PROVISION
STATES THE GENERAL RULE, WE SAID IN AMERICAN UNITED INS. CO. V. AVON
PARK, SUPRA, P. 146, THAT THE BANKRUPTCY COURT HAS THE POWER TO MAKE A
DIFFERENT CLASSIFICATION WHERE INEQUITABLE RESULTS WOULD OTHERWISE
OBTAIN.  WE ASSUME THAT A MAJORITY BONDHOLDER WHO WAS RECEIVING
PREFERRED TREATMENT UNDER A PLAN BY REASON OF HIS UNDERWRITING OR
OTHERWISE WOULD NORMALLY HAVE TO BE PUT IN A DIFFERENT CLASS WHEN IT
CAME TO VOTING ON THE PLAN.  BUT WE SEE NO REASON WHY CONGRESS COULD
NOT PROVIDE OTHERWISE.  AS WE HAVE SEEN, SEC. 402 ALLOWS THE
RECONSTRUCTION FINANCE CORPORATION TO BE TREATED AS A CREDITOR IN THE
AMOUNT OF THE FULL FACE VALUE OF THE SECURITIES IT ACQUIRED.  BY REASON
OF SEC. 403(J) THOSE SECURITIES MAY BE INCLUDED IN THE PERCENTAGE OF
CONSENTING SECURITIES NECESSARY FOR THE FILING OF A PETITION UNDER
CHAPTER IX.  THOSE PROVISIONS WERE INSERTED TO MAKE THESE REFINANCING
PROGRAMS POSSIBLE AND PRACTICAL.  THEY GIVE STATUTORY SANCTION TO THIS
PARTICULAR METHOD OF REFINANCING.  SEC. 403(D) REQUIRES APPROVAL BY
CREDITORS "HOLDING AT LEAST TWO-THIRDS OF THE AGGREGATE AMOUNT OF
CLAIMS OF ALL CLASSES" AFFECTED BY THE PLAN.  FN12  IF THAT IS
CONSTRUED TO MEAN NOT TWO-THIRDS OF EACH CLASS BUT TWO-THIRDS OF THE
TOTAL AMOUNT OF ALL CLAIMS IN ALL CLASSES, THE SEPARATE CLASSIFICATION
OF THE RECONSTRUCTION FINANCE CORPORATION WOULD MAKE NO DIFFERENCE IN
RESULT IN THE PRESENT CASE.  FOR ALL OF THE BONDS HELD BY IT ARE MORE
THAN TWO-THIRDS OF THE AGGREGATE AMOUNT OF ALL CLAIMS AFFECTED BY THE
PLAN.  ONLY IF THE ACT WERE CONSTRUED TO MEAN THAT TWO-THIRDS OF EACH
CLASS IS NECESSARY FOR APPROVAL OF A PLAN WOULD THE SEPARATE
CLASSIFICATION OF THE RECONSTRUCTION FINANCE CORPORATION PRODUCE A
DIFFERENT RESULT IN THIS CASE.  SUCH A CONSTRUCTION, HOWEVER, WOULD
PLACE THE SUCCESS OF THESE REFINANCING PROGRAMS AT THE MERCY OF THE
MINORITY INTERESTS.  IF IT WERE NECESSARY IN THIS TYPE OF CASE TO PUT
NON-ASSENTING BONDHOLDERS IN A SEPARATE CLASS, THEY COULD BLOCK THE
REFINANCING PROGRAM EVEN THOUGH IT WERE FAIR AND EQUITABLE AND THE ONLY
FEASIBLE ONE WHICH THE DEBTOR COULD WORK OUT.  IN DESIGNING THIS
LEGISLATION CONGRESS WAS SOLICITOUS NOT ONLY TO PROTECT THE POSITION OF
THE RECONSTRUCTION FINANCE CORPORATION IN THESE REFINANCING PROGRAMS
FN13  BUT ALSO TO GIVE THIS CLASS OF DEBTORS A WORKABLE AND PRACTICAL
METHOD OF OBTAINING RELIEF FROM OPPRESSIVE DEBT BURDENS.  THAT PURPOSE
WOULD BE THWARTED OR IMPEDED IF WE GAVE CH. IX A CONSTRUCTION WHICH
PLACED THE FATE OF THESE PLANS IN THE HANDS OF MINORITY, NON-CONSENTING
BONDHOLDERS.  THE AIM TO PROVIDE A METHOD OF FORCING "RECALCITRANT
MINORITY CREDITORS INTO AGREEMENT" (H. REP. NO. 517, 75TH CONG., 1ST
SESS., P. 3) WOULD BE DEFEATED.  FOR ONCE SUCH A RULE WERE ANNOUNCED
MINORITY BONDHOLDERS WOULD HAVE A GREAT NUISANCE VALUE, MAKING IT
WORTHWHILE FOR THEM TO LIE BACK UNTIL THEY GOT THEIR PRICE.  FN14 

IT IS SUGGESTED THAT THE PLAN MIGHT BE APPROVED WITHOUT THE CONSENT
OF THE MINORITY IF, AS PROVIDED IN SEC. 403(D), "PROVISION IS MADE IN
THE PLAN FOR THE PROTECTION OF THE INTERESTS, CLAIMS, OR LIEN OF SUCH
CREDITORS OR CLASS OF CREDITORS."  PROVISION "FOR THE PROTECTION" OF
THE CLAIMS OF NON-ASSENTING CREDITORS COULD BE MADE BY LEAVING THEM
UNDISTURBED.  BUT THE PURPOSE OF CH. IX IS TO PROVIDE TAXING AGENCIES
WITH A METHOD OF SCALING DOWN THEIR DEBT STRUCTURES AND REDUCING THEIR
DEBT SERVICE REQUIREMENTS WHEN THE NEED FOR RELIEF IS SHOWN.  IF THE
NON-ASSENTING CREDITORS HAD THE OPTION TO COME IN UNDER THE PLAN OR TO
RETAIN THEIR OLD SECURITIES, THE DEBTOR WOULD BE UNABLE TO GET THE
RELIEF WHICH CH. IX AFFORDS, OR COULD DO SO ONLY ON SUCH TERMS AS THE
MINORITY DICTATED.  THE OTHER ALTERNATIVE WOULD BE TO ABANDON THIS TYPE
OF REFINANCING.  BUT AS WE HAVE SEEN, IT HAS STATUTORY SANCTION.  IT IS
SAID, HOWEVER, THAT PROVISION "FOR THE PROTECTION" OF THE CLAIMS OF NON
ASSENTING CREDITORS COULD BE MADE IN WAYS OTHER THAN LEAVING THE CLAIMS
UNDISTURBED.  IF, ARGUENDO, WE ASSUME THAT IS TRUE, WE SEE NO REASON
WHY PAYMENT IN CASH OF THE FULL VALUE OF THE CLAIMS WOULD NOT BE
ADEQUATE.  THAT IS PERMISSIBLE IN CONNECTION WITH REORGANIZATIONS UNDER
CH. IX.  52 STAT. 840, 11 U.S.C. SEC. 616(7).  IT IS INDEED THE
HISTORIC METHOD OF DEALING WITH DISSENTERS UNDER PLANS OF
REORGANIZATION.  CASE V. LOS ANGELES LUMBER PRODUCTS CO., SUPRA, P.
121, NOTE 15.  NO REASON IS APPARENT WHY, UNDER OUR ASSUMPTION, THE
SAME COULD NOT BE DONE UNDER CH. IX.  YET, EVEN IN THAT VIEW, THE
PRESENT PLAN WAS PROPERLY CONFIRMED.  FOR THERE IS NO SHOWING
WHATSOEVER THAT THE FULL VALUE OF MASON'S CLAIMS IS MORE THAN 52.521
CENTS ON THE DOLLAR WHICH HE RECEIVES IN CASH.  THE DISTRICT COURT,
INDEED, FOUND THAT THE CASH OFFER WAS FAIR AND EQUITABLE AND WE ARE
UNABLE TO SAY THAT THAT FINDING WAS NOT WARRANTED.  AFFIRMED.    FN1
SEC. 403(A) REQUIRES THE PETITION TO STATE, INTER ALIA, THAT "CREDITORS
OF THE PETITIONER OWNING NOT LESS THAN 51 PER CENTUM IN AMOUNT OF THE
SECURITIES AFFECTED BY THE PLAN (EXCLUDING, HOWEVER, ANY SUCH
SECURITIES OWNED, HELD, OR CONTROLLED BY THE PETITIONER), HAVE ACCEPTED
IT IN WRITING." 

FN2  SEC. 403(B) PROVIDES THAT "THE HOLDERS OF ALL CLAIMS, REGARDLESS
OF THE MANNER IN WHICH THEY ARE EVIDENCED, WHICH ARE PAYABLE WITHOUT
PREFERENCE OUT OF FUNDS DERIVED FROM THE SAME SOURCE OR SOURCES SHALL
BE OF ONE CLASS.  THE HOLDERS OF CLAIMS FOR THE PAYMENT OF WHICH
SPECIFIC PROPERTY OR REVENUES ARE PLEDGED, OR WHICH ARE OTHERWISE GIVEN
PREFERENCE AS PROVIDED BY LAW, SHALL ACCORDINGLY CONSTITUTE A SEPARATE
CLASS OR CLASSES OF CREDITORS." 

FN3  SEC. 403(D) PROVIDES THAT A PLAN OF COMPOSITION SHALL NOT BE
CONFIRMED, WITH EXCEPTIONS NOT MATERIAL HERE, "UNTIL IT HAS BEEN
ACCEPTED IN WRITING, BY OR ON BEHALF OF CREDITORS HOLDING AT LEAST TWO
THIRDS OF THE AGGREGATE AMOUNT OF CLAIMS OF ALL CLASSES AFFECTED" BY
THE PLAN, EXCLUDING "CLAIMS OWNED, HELD, OR CONTROLLED BY THE
PETITIONER." 

FN4  SEC. 403(A) REQUIRES THE PETITION TO STATE THAT THE PETITIONER
IS "INSOLVENT OR UNABLE TO MEET ITS DEBTS AS THEY MATURE."  AMONG THE
FINDINGS REQUIRED BY SEC. 403(E) FOR CONFIRMATION OF A PLAN IS THAT IT
"COMPLIES WITH THE PROVISIONS OF THIS CHAPTER." 

FN5  THAT FINDING IS REQUIRED BY SEC. 403(E). 

FN6  NOVEMBER, 1943. 

FN7  TEXAS V. TABASCO SCHOOL DIST., 132 F.2D 62, 133 F.2D 196,
DECIDED BY THE FIFTH CIRCUIT COURT OF APPEALS, IS TO BE CONTRASTED TO
THE DECISION BELOW AND TO WEST COAST LIFE INS. CO. V. MERCED IRRIGATION
DIST., 114 F.2D 654, DECIDED BY THE NINTH CIRCUIT COURT OF APPEALS AND
ALSO TO LUEHRMANN V. DRAINAGE DIST., 104 F.2D 696, DECIDED BY THE
EIGHTH CIRCUIT COURT OF APPEALS. 

FN8  SEC. 403(J) READS AS FOLLOWS:  "THE PARTIAL COMPLETION OR
EXECUTION OF ANY PLAN OF COMPOSITION AS OUTLINED IN ANY PETITION FILED
UNDER THE TERMS OF THIS TITLE BY THE EXCHANGE OF NEW EVIDENCES OF
INDEBTEDNESS UNDER THE PLAN FOR EVIDENCES OF INDEBTEDNESS COVERED BY
THE PLAN, WHETHER SUCH PARTIAL COMPLETION OR EXECUTION OF SUCH PLAN OF
COMPOSITION OCCURRED BEFORE OR AFTER THE FILING OF SAID PETITION, SHALL
NOT BE CONSTRUED AS LIMITING OR PROHIBITING THE EFFECT OF THIS TITLE,
AND THE WRITTEN CONSENT OF THE HOLDERS OF ANY SECURITIES OUTSTANDING AS
THE RESULT OF ANY SUCH PARTIAL COMPLETION OR EXECUTION OF ANY PLAN OF
COMPOSITION SHALL BE INCLUDED AS CONSENTING CREDITORS TO SUCH PLAN OF
COMPOSITION IN DETERMINING THE PERCENTAGE OF SECURITIES AFFECTED BY
SUCH PLAN OF COMPOSITION." 

FN9  FOR A DISCUSSION OF THE HISTORY OF SEC. 403(J) SEE WEST COAST
LIFE INS. CO. V. MERCED IRRIGATION DIST., SUPRA NOTE 7, PP. 667-668. 

FN10  SEE NOTE 1, SUPRA. 

FN11  SEE NOTE 2, SUPRA. 

FN12  SEE NOTE 3, SUPRA. 

FN13  THAT THE RECONSTRUCTION FINANCE CORPORATION WOULD PLAY AN
IMPORTANT ROLE IN THESE REFINANCING PROGRAMS WAS IN THE FOREFRONT WHEN
THIS LEGISLATION WAS BEFORE CONGRESS.  SEE H. REP. NO. 517, SUPRA, P.
4; 81 CONG. REC. 6322. 

FN14  CONGRESSMAN SUMNERS, CHAIRMAN OF THE HOUSE JUDICIARY COMMITTEE,
STATED DURING THE DEBATE: "THE FORCE OF THE BILL IS DIRECTED AGAINST
THAT MINORITY PRESENT IN EVERY EFFORT OF DEBTORS AND CREDITORS TO BRING
THE TOTAL OF AMOUNTS PAYABLE WITHIN THE ABILITY OF THE DEBTOR TO PAY. 
IT IS THE MINORITY WHO TRY TO TAKE ADVANTAGE OF THE GENERAL DESIRE TO
SETTLE TO COMPEL AN ADVANTAGE TO THEMSELVES IN ORDER TO REMOVE THEIR
SELFISHLY INTERPOSED OBSTRUCTION.  THEY ARE HOLD-UP MEN OPERATING
WITHIN THE LAW."  81 CONG. REC. 6313.  THE SAME VIEW WAS EXPRESSED BY
SENATOR PEPPER WHO MANAGED THE LEGISLATION ON THE FLOOR OF THE SENATE. 
81 CONG. REC. 8543. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE COURT HOLDS THAT THE RECONSTRUCTION FINANCE CORPORATION IS NOT TO
BE TREATED AS AN ORDINARY BONDHOLDERCREDITOR BUT IS ENTITLED TO
PREFERRED TREATMENT BECAUSE IT ACQUIRED THE BONDS OF THE DEBTOR AS PART
OF AN ARRANGEMENT WHICH MADE POSSIBLE FINANCING OF THE PLAN OF
COMPOSITION.  WITH THIS I AGREE.  BUT I FIND NOTHING IN CHAPTER IX
WHICH, WHILE PERMITTING THE R.F.C. TO BE CONSIDERED A PREFERRED
CREDITOR FOR PURPOSES OF DISTRIBUTION, ALLOWS IT TO BE CLASSIFIED AMONG
ORDINARY CREDITORS FOR PURPOSES OF VOTING.  NOR DO CONSIDERATIONS OF
POLICY REQUIRE THAT THE R.F.C. BE GIVEN SUCH A TWO-FACED CHARACTER.  IT
IS SUGGESTED THAT IF THE VOTES OF A PREFERRED CREDITOR IN THE POSITION
OF THE R.F.C. COULD NOT BE COUNTED WITH THE VOTES OF THE ORDINARY
CREDITORS THAT CLASS MIGHT NOT FURNISH THE NECESSARY TWO-THIRDS OF THE
AGGREGATE AMOUNT OF CLAIMS OF THAT CLASS.  IT MUST BE REMEMBERED,
HOWEVER, THAT THE MERE FAILURE OF A CLASS LIKE THAT OF ORDINARY
CREDITORS, E.G., THOSE HAVING NO PREFERRED POSITION IN THE SCHEME FOR
DISTRIBUTION, TO ACCEPT A PLAN OF COMPOSITION DOES NOT PROVE THAT ITS
RESISTANCE IS IMPROPERLY OR UNFAIRLY RECALCITRANT.  CF. AMERICAN UNITED
INS. CO. V. AVON PARK, 311 U.S. 138, 148.  AND RECOGNITION THAT
BONDHOLDERS MAY EXERCISE THEIR STATUTORY RIGHTS AS COMMON CREDITORS NOT
TO ASSENT DOES NOT, OF COURSE, MAKE OF THEM A SEPARATE CLASS OF NON
ASSENTING BONDHOLDERS WITH A VETO POWER OVER THE PLAN.  BUT IF THE
RECALCITRANCY DOES REPRESENT A DOG-IN-THE-MANGER ATTITUDE, CHAPTER IX
WOULD SEEM TO HAVE PROVIDED FOR THE CONTINGENCY.  ACCORDING TO SEC.
83(D) OF THE ACT, 50 STAT. 653, 657, 11 U.S.C. SEC. 403(D), A PLAN
MIGHT BE APPROVED WITHOUT THE OTHERWISE NECESSARY VOTE, NOT ONLY WHERE
THE CLAIMS OF THE CREDITORS "ARE NOT AFFECTED BY THE PLAN," BUT ALSO
WHERE "PROVISION IS MADE IN THE PLAN FOR THE PROTECTION OF THE
INTERESTS, CLAIMS, OR LIEN OF SUCH CREDITORS OR CLASS OF CREDITORS." 
BUT, THOUGH THE BANKRUPTCY COURT HAS THE POWER OF DISPENSING WITH THE
NEED OF AN APPROVING VOTE BY A CLASS OF CREDITORS, BY PROTECTING THAT
CLASS' INTERESTS, IT IS NOT AVAILABLE WHERE THE COURT HAS NOT IN FACT
DETERMINED, AS IT HAS NOT IN THIS CASE, THAT THE DISSENT OF THAT CLASS
WAS AN ABUSIVE EXERCISE OF THEIR RIGHT TO VETO A PLAN. 

TO GIVE SUCH FLEXIBLE SCOPE TO SEC. 83(D),  FN1  THOUGH, LIKE OTHER
PROVISIONS OF CHAPTER IX, IT IS NOT FREE FROM AMBIGUITY, IS THE MORE
PERTINENT IF, AS SUGGESTED, CHAPTER IX REQUIRES APPROVAL OF TWO-THIRDS
NOT OF EACH CLASS OF CLAIMS BUT OF THE TOTAL AMOUNT OF ALL CLAIMS.  SEE
REMINGTON, BANKRUPTCY (1939) SEC. 4364.  ON THE OTHER HAND, IF APPROVAL
OF THE PLAN BY TWO-THIRDS OF EACH CLASS IS REQUIRED, SUCH A REQUIREMENT
CAN ONLY MEAN THAT A GROUP OF MORE THAN ONE-THIRD OF ANY CLASS IS
CAPABLE OF EXERCISING THE VETO POWER, EXCEPT WHEN SEC. 83(D) CAN BE
INVOKED.  IN ESTABLISHING THESE CLASSES, CREDITORS ARE NOT PROPERLY
GROUPED WHO, ON THE FACE-VALUE OF THE SAME BONDS, GET DIFFERENT
EQUIVALENTS, AND ARE, AS TO THE ONLY THING THAT MATTERS, NOT BOUND
TOGETHER BY THE SAME TIES BUT SEPARATED BY ANTAGONISTIC INTERESTS.  TO
PUT THESE GROUPS WITH SUCH ANTAGONISTIC INTERESTS INTO THE SAME CLASS
IS TO CONTRADICT THE VERY NOTION OF A CLASS.  REASON REJECTS SUCH
CLASSIFICATION AND NOTHING IN THE STATUTE INDICATES THAT CONGRESS
INTENDED TO DEFINE A CLASS AS A GROUP WITH INCONSISTENT INTERESTS. 

FN1  THAT THIS IS A REASONABLE INTERPRETATION OF SEC. 83(D) IS
INDICATED BY THE CUMBERSOME BUT MORE DETAILED FORM IN WHICH THE PURPOSE
OF SEC. 83(D) IS EXPLAINED IN AN EARLIER DRAFT OF THE ACT: 

"...  (3) SHALL, WITH RESPECT TO CREDITORS WHOSE ACCEPTANCE IS NOT
REQUIRED UNDER THE PROVISIONS OF SUBDIVISION (E) OF THIS SECTION IF
THEIR INTERESTS, CLAIMS, OR LIENS ARE PROTECTED IN THE MANNER PROVIDED
IN THIS CLAUSE (3), PROVIDE ADEQUATE PROTECTION FOR THE REALIZATION BY
THEM OF THE VALUE OF THEIR INTERESTS, CLAIMS, OR LIENS, IF THE PROPERTY
OR REVENUE AFFECTED BY SUCH INTERESTS, CLAIMS, OR LIENS IS DEALT WITH
BY THE PLAN, EITHER AS PROVIDED IN THE PLAN, (A) BY THE TRANSFER OR
SALE OF SUCH PROPERTY SUBJECT TO SUCH INTERESTS, CLAIMS, OR LIENS, OR
SUCH PROPERTY SHALL CONTINUE TO BE HELD BY THE TAXING DISTRICT SUBJECT
TO SUCH INTERESTS, CLAIMS, OR LIENS, OR (B) BY A SALE FREE OF SUCH
INTERESTS, CLAIMS, OR LIENS AT NOT LESS THAN A FAIR UPSET PRICE AND THE
TRANSFER OF SUCH INTERESTS, CLAIMS, OR LIENS TO THE PROCEEDS OF SUCH
SALE, OR (C) BY APPRAISAL AND PAYMENT IN CASH OF THE VALUE OF SUCH
INTERESTS, CLAIMS, OR LIENS, OR, AT THE OBJECTING CREDITORS' ELECTION,
OF THE SECURITIES ALLOTTED TO SUCH INTERESTS, CLAIMS, OR LIENS UNDER
THE PLAN, IF ANY SHALL BE SO ALLOTTED, OR (D) BY SUCH METHOD AS WILL IN
THE OPINION OF THE JUDGE, UNDER AND CONSISTENT WITH THE CIRCUMSTANCES
OF THE PARTICULAR CASE, EQUITABLY AND FAIRLY PROVIDE SUCH PROTECTION:
PROVIDED, THAT IF PROVISION THEREFOR IS MADE IN THE PLAN, THE JUDGE MAY
REQUIRE OBJECTING CREDITORS TO ACCEPT, IN LIEU OF ANY CASH PAYMENT
UNDER THIS SUBDIVISION, SUCH SECURITIES, OF ANY KIND, IN PAYMENT OF
THEIR INTERESTS, CLAIMS, OR LIENS AS SHALL, IN THE OPINION OF THE
JUDGE, UPON THE CONSUMMATION OF THE PLAN, REPRESENT THE FAIR AND
EQUITABLE SHARES OF SUCH CREDITORS IN THE PROPERTY AND REVENUES OF THE
TAXING DISTRICT, AVAILABLE FOR THE PAYMENT OF ITS DEBTS  ..."  H.R.
5267, 73D CONG., 1ST SESS. (1933) SEC. 81(B)(3), AS IT APPEARS IN THE
HEARINGS ON THAT BILL, AT PAGE 17. 
..END :























WILLIAMS V. GREEN BAY & W.R. CO., 326 U.S. 549 


NO. 100.  ARGUED DECEMBER 10, 1945.  - DECIDED JANUARY 7, 1946.  - 147
F.2D 777, REVERSED. 


PETITIONERS, RESIDENTS OF NEW YORK AND HOLDERS OF CLASS B DEBENTURES
ISSUED BY RESPONDENT, A WISCONSIN CORPORATION, BROUGHT SUIT IN A NEW
YORK COURT TO RECOVER AMOUNTS DUE AND PAYABLE UNDER THE DEBENTURES OUT
OF EARNINGS IN LIEU OF INTEREST.  UNDER THE COVENANT IN THE CLASS B
DEBENTURES, THE HOLDERS THEREOF WERE ENTITLED TO ALL OF THE REMAINING
NET EARNINGS EACH YEAR AFTER HOLDERS OF CLASS A DEBENTURES HAD RECEIVED
5% ON THE FACE VALUE THEREOF AND STOCKHOLDERS HAD RECEIVED 5% ON THE
PAR VALUE OF THE STOCK, THE AMOUNTS PAYABLE TO THE CLASS B DEBENTURE
HOLDERS TO "BE FIXED AND DECLARED BY THE BOARD OF DIRECTORS." 
RESPONDENT'S RAILROAD LINES WERE WHOLLY IN WISCONSIN AND ITS PRESIDENT
AND GENERAL AUDITOR WERE THERE.  HOWEVER, IT DID BUSINESS IN NEW YORK;
ITS CLASS B DEBENTURES WERE PAYABLE, LISTED AND TRADED IN THERE; IT
MAINTAINED ITS FINANCIAL OFFICE, A TRAFFIC OFFICE AND A BANK ACCOUNT
THERE; FIVE OF ITS SIX DIRECTORS (INCLUDING ALL OF THE EXECUTIVE AND
FISCAL OFFICERS EXCEPT THE PRESIDENT AND GENERAL AUDITOR) AND TWO OF
THE THREE MEMBERS OF ITS EXECUTIVE COMMITTEE WERE THERE; DIRECTORS'
MEETINGS WERE CUSTOMARILY HELD THERE; AND ITS FINANCIAL RECORDS,
TRANSFER BOOKS, MINUTE BOOKS AND THE LIKE WERE KEPT THERE.  AFTER
REMOVING THE CASE TO A FEDERAL DISTRICT COURT IN NEW YORK ON THE
GROUNDS OF DIVERSITY, RESPONDENT MOVED TO DISMISS ON THE GROUND THAT
THE SUIT CONCERNED THE INTERNAL AFFAIRS OF A FOREIGN CORPORATION AND
COULD MORE CONVENIENTLY BE TRIED IN THE STATE OF ITS INCORPORATION. 
THE DISTRICT COURT GRANTED THE MOTION.  HELD: 

1.  IT WAS IMPROPER TO DISMISS THE SUIT ON THE GROUND OF FORUM NON
CONVENIENS.  PP. 552, 560. 

2.  THIS RULE WAS DESIGNED AS AN INSTRUMENT OF JUSTICE TO PREVENT A
CASE FROM BEING TRIED IN ONE COURT WHEN IN FAIRNESS IT SHOULD BE TRIED
IN ANOTHER.  (ILLUSTRATIONS GIVEN.)  P. 554. 

3.  WHEN IT IS INVOKED, EACH CASE TURNS ON ITS FACTS.  P. 557. 

4.  THE RELIEF SOUGHT, A MONEY JUDGMENT, WAS NOT OF SUCH A CHARACTER
THAT A FEDERAL COURT IN NEW YORK WOULD BE SO HANDICAPPED THAT IT SHOULD
REMIT THE PARTIES TO WISCONSIN.  P. 558. 

5.  NOR SHOULD THE CASE HAVE BEEN REMITTED TO WISCONSIN ON THE THEORY
THAT A CONSTRUCTION OF THE COVENANT WOULD PRIMARILY AFFECT THE
INTERESTS OF THE PUBLIC IN THAT STATE.  P. 558. 

6.  SINCE THE SUIT SOUGHT ONLY A MONEY JUDGMENT, IT DID NOT INVOLVE
SUFFICIENT INTERFERENCE IN THE INTERNAL AFFAIRS OF THE FOREIGN
CORPORATION TO JUSTIFY DISMISSAL ON FORUM NON CONVENIENS.  P. 559. 

7.  UNDER THE FACTS IN THIS CASE, IT WOULD NOT BE VEXATIOUS OR
OPPRESSIVE TO ENTERTAIN THE SUIT IN NEW YORK, WHETHER THE AVAILABILITY
OF WITNESSES OR ANY OTHER ASPECT OF A TRIAL BE CONSIDERED.  P. 559. 

WILLIAMS ET AL. V. GREEN BAY & WESTERN RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 699, TO REVIEW AFFIRMANCE OF A JUDGMENT, 59
F.SUPP.  98, DISMISSING A SUIT UNDER THE RULE OF FORUM NON CONVENIENS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, RESIDENTS OF THE CITY OF NEW YORK, ARE HOLDERS OF CLASS
B DEBENTURES ISSUED BY RESPONDENT RAILROAD COMPANY, A WISCONSIN
CORPORATION.  THEY BROUGHT THIS SUIT IN THE NEW YORK COURTS TO RECOVER
AMOUNTS ALLEGED TO BE DUE AND PAYABLE UNDER THE DEBENTURES OUT OF
EARNINGS IN LIEU OF INTEREST.  ON PETITION OF RESPONDENT THE ACTION WAS
REMOVED TO THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK ON THE GROUNDS OF DIVERSITY.  RESPONDENT THEREUPON MOVED (1) TO
SET ASIDE THE SERVICE BECAUSE RESPONDENT WAS NOT DOING BUSINESS IN NEW
YORK AND (2) TO DISMISS BECAUSE THE SUBJECT MATTER WAS CONCERNED WITH
THE INTERNAL AFFAIRS OF A FOREIGN CORPORATION.  THE DISTRICT COURT
DENIED THE FIRST MOTION, BUT GRANTED THE SECOND.  59 F.SUPP.  98.  ON
APPEAL THE CIRCUIT COURT OF APPEALS AFFIRMED BY A DIVIDED VOTE, HOLDING
THAT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN BASING ITS
DISMISSAL ON FORUM NON CONVENIENS.  147 F.2D 777.  WE GRANTED
CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED. 

THE CLASS B DEBENTURES, ISSUED IN 1896, HAVE NO MATURITY DATE.  THEIR
PRINCIPAL IS PAYABLE "ONLY IN THE EVENT OF A SALE OR REORGANIZATION" OF
THE COMPANY AND "THEN ONLY OUT OF ANY NET PROCEEDS" REMAINING AFTER
SPECIFIED PAYMENTS TO THE CLASS A DEBENTURES AND TO THE STOCK.  THE
COVENANT IN THE CLASS B DEBENTURES OUT OF WHICH THIS LITIGATION ARISES
IS SET FORTH BELOW.  FN1  THE CIRCUIT COURT OF APPEALS WAS DIVIDED AS
TO ITS MEANING.  THE MAJORITY CONCLUDED THAT EVEN THOUGH THERE WERE NET
EARNINGS AFTER THE PAYMENTS TO THE CLASS A DEBENTURES AND TO THE STOCK,
THE DIRECTORS HAD DISCRETION TO DETERMINE WHETHER OR NOT THAT SUM
SHOULD BE PAID TO THE CLASS B DEBENTURES.  THE COURT THEREUPON HELD, IN
RELIANCE ON ROGERS V. GUARANTY TRUST CO., 288 U.S. 123; COHN V.
MISHKOFF COSTELLO CO., 256 N.Y. 102, 175 N.E. 529; COHEN V. AMERICAN
WINDOW GLASS CO., 126 F.2D 111, THAT THE SUIT CONCERNED THE INTERNAL
AFFAIRS OF RESPONDENT AND COULD BETTER BE TRIED IN WISCONSIN, THE STATE
OF ITS INCORPORATION.  THE MINORITY THOUGHT THAT THE AMOUNT OF NET
EARNINGS REMAINING AFTER DEDUCTING THE PAYMENTS MADE TO THE CLASS A
DEBENTURES AND TO THE STOCK WAS TO BE PAID TO THE CLASS B DEBENTURES,
THAT THE DIRECTORS HAD NO DISCRETION TO WITHHOLD SUCH AMOUNTS, AND THAT
THEIR PAYMENT INVOLVED NOTHING MORE THAN A MINISTERIAL ACT.  FN2  IN
THAT VIEW THE SUIT WAS SUBSTANTIALLY THE SAME AS ONE FOR A LIQUIDATED
SUM AND WOULD ENTAIL NO INTERFERENCE WITH THE INTERNAL AFFAIRS OF A
FOREIGN CORPORATION. 

WE LEAVE OPEN THE QUESTION OF THE PROPER CONSTRUCTION OF THE "NET
EARNINGS" COVENANT IN THE CLASS B DEBENTURES.  ALTHOUGH WE ASSUME THAT
THE MAJORITY OF THE COURT BELOW WAS RIGHT IN ITS INTERPRETATION OF THE
COVENANT, WE THINK IT WAS IMPROPER TO DISMISS THE CASE ON THE GROUNDS
OF FORUM NON CONVENIENS. 

ROGERS V. GUARANTY TRUST CO., SUPRA, IS THE ONLY DECISION OF THIS
COURT HOLDING THAT A FEDERAL COURT SHOULD DECLINE TO HEAR A CASE
BECAUSE IT CONCERNS THE INTERNAL AFFAIRS OF A CORPORATION FOREIGN TO
THE STATE WHERE THE FEDERAL COURT SITS.  A CORPORATION CHARTERED BY ONE
STATE COMMONLY DOES BUSINESS IN THE FARTHEST REACHES OF THE NATION. 
ITS BUSINESS ENGAGEMENTS - THE ISSUANCE OF SECURITIES, MORTGAGING OF
ASSETS, CONTRACTUAL UNDERTAKINGS - FREQUENTLY RAISE QUESTIONS
CONCERNING THE CONSTRUCTION OF ITS CHARTER, BY-LAWS AND THE LIKE, OR
THE SCOPE OF AUTHORITY OF ITS OFFICERS OR DIRECTORS, OR THE
RESPONSIBILITY OF ONE GROUP IN THE CORPORATE FAMILY TO ANOTHER GROUP. 
ALL SUCH QUESTIONS INVOLVE IN A SENSE THE INTERNAL AFFAIRS OF A
CORPORATION - WHETHER IN A SUIT ON A CONTRACT THE CORPORATION
INTERPOSES THE DEFENSE OF ULTRA VIRES, OR A BONDHOLDER SUES ON HIS BOND
OR A STOCKHOLDER ASSERTS RIGHTS UNDER HIS STOCK CERTIFICATE.  BUT A
FEDERAL COURT WHICH UNDERTAKES TO DECIDE SUCH A QUESTION DOES NOT
TRESPASS ON A FORBIDDEN DOMAIN.  SEE WILLIAMSON V. MISSOURI-KANSAS PIPE
LINE CO., 56 F.2D 503, 510.  UNDER THE RULE OF ERIE R. CO. V. TOMPKINS,
304 U.S. 64, A FEDERAL COURT IN A DIVERSITY CASE APPLIES LOCAL LAW.  IN
CONFLICT OF LAWS CASES THAT MAY MEAN ASCERTAINING AND APPLYING THE LAW
OF A STATE OTHER THAN THAT IN WHICH THE FEDERAL COURT IS LOCATED. 
KLAXON CO. V. STENTOR ELECTRIC MFG. CO., 313 U.S. 487.  THE FACT THAT
THE CORPORATION LAW OF ANOTHER STATE IS INVOLVED DOES NOT SET THE CASE
APART FOR SPECIAL TREATMENT.  THE PROBLEM OF ASCERTAINING THE STATE LAW
MAY OFTEN BE DIFFICULT.  BUT THAT IS NOT A SUFFICIENT GROUND FOR A
FEDERAL COURT TO DECLINE TO EXERCISE ITS JURISDICTION TO DECIDE A CASE
PROPERLY BEFORE IT.  AS WE SAID IN MEREDITH V. WINTER HAVEN, 320 U.S.
228, 234, "THE DIVERSITY JURISDICTION WAS NOT CONFERRED FOR THE BENEFIT
OF THE FEDERAL COURTS OR TO SERVE THEIR CONVENIENCE.  ITS PURPOSE WAS
GENERALLY TO AFFORD TO SUITORS AN OPPORTUNITY IN SUCH CASES, AT THEIR
OPTION, TO ASSERT THEIR RIGHTS IN THE FEDERAL RATHER THAN IN THE STATE
COURTS."  SO LONG AS DIVERSITY JURISDICTION REMAINS, THE PARTIES MAY
NOT BE REMITTED TO A STATE COURT MERELY BECAUSE OF THE DIFFICULTY OF
MAKING A DECISION IN THE FEDERAL COURT.  MEREDITH V. WINTER HAVEN,
SUPRA.  IF THE DISTRICT COURT WERE SUSTAINED IN DECLINING TO EXERCISE
ITS JURISDICTION IN THIS CASE, THERE COULD BE NO ASSURANCE THAT THE
LITIGATION WOULD BE TRANSFERRED TO THE WISCONSIN STATE COURTS.  IF
PETITIONERS SUED IN THE FEDERAL COURT IN WISCONSIN, AS THEY COULD BY
REASON OF DIVERSITY OF CITIZENSHIP, NO REASON IS APPARENT WHY THAT
COURT SHOULD NOT PROCEED TO DECISION.  THE FACT THAT THE FEDERAL COURT
IN WISCONSIN COULD PASS ON THIS INTERNAL AFFAIR OF THIS CORPORATION
DOES NOT, OF COURSE, MEAN THAT THE FEDERAL COURT IN NEW YORK NEED DO
SO.  THE NATURE OF THE PROBLEM PRESENTED AND THE RELIEF SOUGHT MIGHT BE
OF CONTROLLING SIGNIFICANCE IN INDUCING THE FEDERAL COURT IN NEW YORK
TO REMIT THE PARTIES TO WISCONSIN.  BUT AS WE SHALL SEE, NO SPECIAL
CIRCUMSTANCES OF THAT NATURE ARE PRESENT HERE. 

WE MENTION THIS PHASE OF THE MATTER TO PUT THE RULE OF FORUM NON
CONVENIENS IN PROPER PERSPECTIVE.  IT WAS DESIGNED AS AN "INSTRUMENT OF
JUSTICE."  FN3  MAINTENANCE OF A SUIT AWAY FROM THE DOMICILE OF THE
DEFENDANT - WHETHER HE BE A CORPORATION OR AN INDIVIDUAL - MIGHT BE
VEXATIOUS OR OPPRESSIVE.  FN4  AN ADVENTITIOUS CIRCUMSTANCE MIGHT LAND
A CASE IN ONE COURT WHEN IN FAIRNESS IT SHOULD BE TRIED IN ANOTHER. 
THE RELIEF SOUGHT AGAINST A FOREIGN CORPORATION MAY BE SO EXTENSIVE OR
CALL FOR SUCH DETAILED AND CONTINUING SUPERVISION THAT THE MATTER COULD
BE MORE EFFICIENTLY HANDLED NEARER HOME.  FN5  THE LIMITED TERRITORIAL
JURISDICTION OF THE FEDERAL COURT FN6  MIGHT INDEED MAKE IT DIFFICULT
FOR IT TO MAKE ITS DECREE EFFECTIVE.  FN7  BUT WHERE IN THIS TYPE OF
LITIGATION ONLY A MONEY JUDGMENT IS SOUGHT, THE CASE NORMALLY IS
DIFFERENT.  THE FACT THAT THE CLAIM INVOLVES COMPLICATED AFFAIRS OF A
FOREIGN CORPORATION IS NOT ALONE A SUFFICIENT REASON FOR A FEDERAL
COURT TO DECLINE TO DECIDE IT.  FN8  THE SAME MAY BE TRUE EVEN WHERE AN
INJUNCTION IS SOUGHT.  FN9  WE GIVE THESE MERELY AS ILLUSTRATIONS. 
EACH CASE TURNS ON ITS FACTS.  THERE ARE NO SPECIAL CIRCUMSTANCES HERE,
HOWEVER, WHICH SHOULD LEAD THE DISTRICT COURT IN NEW YORK TO DECLINE TO
EXERCISE THE JURISDICTION WHICH IT HAS. 

IF PETITIONERS' THEORY OF THE CASE IS RIGHT, THE COURT NEED GO NO
FURTHER THAN IT WOULD IN ENFORCING ANY CONTRACT TO PAY MONEY.  IF, AS
THE MAJORITY OF THE COURT BELOW THOUGHT, THE PAYMENT OF NET INCOME TO
THE CLASS B DEBENTURES RESTED IN THE DISCRETION OF THE DIRECTORS, THE
QUESTION UNDER THE APPLICABLE LOCAL LAW WOULD NORMALLY BE WHETHER THEIR
DISCRETION HAD BEEN ABUSED.  FN10 IN CASE IT WERE FOUND TO HAVE BEEN
ABUSED, THE CUSTOMARY REMEDY IS COMPARABLE TO THAT WHICH A COURT OF
EQUITY AFFORDS IN A SUIT FOR SPECIFIC PERFORMANCE.  FN11  THE POINT IS
THAT, HOWEVER THIS SUIT BE VIEWED, THE RELIEF SOUGHT IS NOT OF SUCH A
CHARACTER AS TO SUGGEST THAT THE FEDERAL COURT IN NEW YORK WOULD BE SO
HANDICAPPED THAT IT SHOULD REMIT THE PARTIES TO WISCONSIN.  THERE IS A
SUGGESTION THAT THE PARTIES SHOULD BE REMITTED TO WISCONSIN BECAUSE A
CONSTRUCTION OF THE COVENANT WILL PRIMARILY AFFECT THE INTERESTS OF THE
PUBLIC IN THAT STATE WHERE ALL OF RESPONDENT'S RAILROAD LINES ARE
LOCATED.  REFERENCE IS MADE TO NEW YORK, L.E. & W.R. CO. V. NICKALS,
119 U.S. 296, WHERE PREFERRED STOCKHOLDERS SUED FOR DIVIDENDS WHICH
THEY CLAIMED HAD BEEN EARNED ON THEIR STOCK AND WRONGFULLY WITHHELD. 
THE COURT CONSTRUED THE PARTICULAR CONTRACT AS VESTING DISCRETION IN
THE DIRECTORS.  IN HOLDING THAT THEIR DISCRETION IN WITHHOLDING A
DISTRIBUTION OF NET EARNINGS HAD NOT BEEN ABUSED, IT EMPHASIZED "THE
DUTY OF THE COMPANY TO MAINTAIN ITS TRACK AND CARS IN SUCH CONDITION AS
TO ACCOMMODATE THE PUBLIC AND PROVIDE FOR THE SAFE TRANSPORTATION OF
PASSENGERS AND FREIGHT."  P. 306.  BUT SUCH CONSIDERATIONS WILL
FREQUENTLY BE INVOLVED IN APPLYING THE RULE OF ERIE R. CO. V. TOMPKINS,
SUPRA.  THEY GO NO FURTHER THAN TO SUGGEST ONE ADDITIONAL PHASE OF
LOCAL LAW WHICH THE FEDERAL COURT, WHETHER IT SITS IN NEW YORK OR IN
WISCONSIN, MAY HAVE TO APPLY.  THEY FALL FAR SHORT OF THOSE INSTANCES,
REVIEWED IN MEREDITH V. WINTER HAVEN, SUPRA, P. 235, WHERE THE FEDERAL
COURT DECLINES TO ACT BECAUSE ITS ACTION MIGHT INTERFERE WITH STATE
PROCEEDINGS, OR STATE FUNCTIONS, OR THE FUNCTIONING OF STATE
ADMINISTRATIVE AGENCIES. 

IT WAS HELD IN WEISS V. ROUTH, 149 F.2D 193, THAT A FEDERAL COURT IN
A DIVERSITY CASE WAS REQUIRED BY ERIE R. CO. V. TOMPKINS, SUPRA, TO
APPLY THE LOCAL RULE OF FORUM NON CONVENIENS.  WE RESERVE DECISION ON
THAT QUESTION.  FOR EVEN IF WE ASSUME THE NEW YORK RULE TO BE
APPLICABLE HERE, WE WOULD REACH NO DIFFERENT RESULT.  COHN V. MISHKOFF
COSTELLO CO., SUPRA, ON WHICH THE COURT BELOW RELIED, WAS A SUIT
AGAINST A FOREIGN CORPORATION FOR THE REDEMPTION OF ITS SHARES OF STOCK
OR IN THE ALTERNATIVE FOR A DECLARATION OF A DIVIDEND.  BUT THAT
INVOLVED A DEGREE OF VISITATION NOT PRESENT HERE WHERE PETITIONERS SEEK
ONLY A MONEY JUDGMENT ON THEIR DEBENTURES.  NOR DO PETITIONERS
CHALLENGE AN ACT OF THE CORPORATION WHICH "OFFENDED SOLELY AGAINST THE
MAJESTY OF THE STATE TO WHICH IT OWED ITS LIFE."  ERNST V. RUTHERFORD
GAS CO., 38 APP. DIV. 388, 392, 56 N.Y.S. 403.  THE COURT OF APPEALS IN
THE COHN CASE STATED THAT "CONTRACTS BETWEEN A FOREIGN CORPORATION AND
ITS MEMBERS WILL USUALLY BE ENFORCED IN THE COURTS OF THIS STATE."  256
N.Y. P. 105.  CARDOZO, J., STATED THE NEW YORK RULE IN TRAVIS V. KNOX
TERPEZONE CO., 215 N.Y. 259, 264, 109 N.E. 250, AS FOLLOWS:  "TO TRACE
IN ADVANCE THE PRECISE LINE OF DEMARCATION BETWEEN THE CONTROVERSIES
AFFECTING A FOREIGN CORPORATION IN WHICH JURISDICTION WILL BE ASSUMED
AND THOSE IN WHICH JURISDICTION WILL BE DECLINED, WOULD BE A DIFFICULT
AND HAZARDOUS VENTURE.  A LITIGANT IS NOT, HOWEVER, TO BE EXCLUDED
BECAUSE HE IS A STOCKHOLDER, UNLESS CONSIDERATIONS OF CONVENIENCE OR OF
EFFICIENCY OR OF JUSTICE POINT TO THE COURTS OF THE DOMICILE OF THE
CORPORATION AS THE APPROPRIATE TRIBUNALS."  AND SEE THE NEW YORK
AUTHORITIES REVIEWED IN WEISS V. ROUTH, SUPRA.  IN THE TRAVIS CASE THE
COURT ENTERTAINED A SUIT BY A STOCKHOLDER OF A FOREIGN CORPORATION TO
COMPEL THE TRANSFER OF SHARES OR TO RECOVER THEIR VALUE.  WE PERCEIVE
IN THE PRESENT CASE NO GREATER INTERFERENCE IN THE INTERNAL AFFAIRS OF
THIS FOREIGN CORPORATION. 

NOR CAN WE CONCLUDE THAT THE MAINTENANCE OF THIS SUIT IN NEW YORK
WILL BE VEXATIOUS OR OPPRESSIVE.  PETITIONERS, AS WE HAVE SAID, RESIDE
THERE.  WHILE RESPONDENT'S RAILROAD LINES ARE WHOLLY IN WISCONSIN, IT
DOES BUSINESS IN NEW YORK.  THE CLASS B DEBENTURES ARE LISTED AND
TRADED IN ON THE NEW YORK STOCK EXCHANGE.  THE AMOUNTS PAYABLE ON THEM
IN LIEU OF INTEREST ARE PAYABLE IN NEW YORK.  RESPONDENT MAINTAINS ITS
FINANCIAL AS WELL AS A TRAFFIC OFFICE IN NEW YORK.  IT MAINTAINS A BANK
ACCOUNT IN NEW YORK, NOT ONLY TO TAKE CARE OF OBLIGATIONS UNDER ITS
SECURITIES, BUT ALSO TO HANDLE EXCESS OPERATING FUNDS NOT NEEDED IN
WISCONSIN.  FIVE OF RESPONDENT'S SIX DIRECTORS ARE TO BE FOUND IN NEW
YORK.  THESE FIVE DIRECTORS INCLUDE ALL THE EXECUTIVE AND FISCAL
OFFICERS, EXCEPT THE PRESIDENT WHO SUPERVISES OPERATIONS IN WISCONSIN
AND THE GENERAL AUDITOR WHO IS IN WISCONSIN.  DIRECTORS' MEETINGS ARE
CUSTOMARILY HELD IN NEW YORK.  TWO OF THE THREE MEMBERS OF THE
EXECUTIVE COMMITTEE, WHICH ACTS FOR THE BOARD BETWEEN MEETINGS, ARE TO
BE FOUND IN NEW YORK.  FINANCIAL RECORDS, TRANSFER BOOKS, MINUTE BOOKS
AND THE LIKE ARE KEPT IN NEW YORK.  THESE FACTS PLAINLY INDICATE TO US
THAT IT WOULD NOT BE VEXATIOUS OR OPPRESSIVE TO ENTERTAIN THIS SUIT IN
NEW YORK, WHETHER THE AVAILABILITY OF WITNESSES OR ANY OTHER ASPECT OF
A TRIAL BE CONSIDERED.  WE ACCORDINGLY CONCLUDE THAT, THE REQUIREMENTS
OF JURISDICTION AND VENUE BEING SATISFIED (JUDICIAL CODE, SECS. 24, 51,
28 U.S.C. SECS. 41(1), 112), THE DISTRICT COURT SHOULD NOT HAVE
DECLINED TO HEAR AND DECIDE THE CASE.  REVERSED.    FN1  "THE SAID
RAILROAD COMPANY HEREBY AGREES THAT UNTIL SUCH PAYMENT, THE HOLDERS OF
THIS SERIES OF DEBENTURES SHALL IN LIEU OF INTEREST THEREON PARTICIPATE
IN THE DISTRIBUTION OF ANNUAL NET INCOME TO THE FOLLOWING EXTENT, VIZ.:
- SO MUCH OF THE ANNUAL NET EARNINGS OF THE SAID COMPANY IN ANY YEAR AS
WOULD BE APPLICABLE TO THE PAYMENT OF DIVIDENDS ON STOCK SHALL BE
APPLIED AS FOLLOWS, VIZ.: - TO THE HOLDERS OF CLASS A DEBENTURES 2 1/2
PER CENT UPON THE FACE VALUE THEREOF, OR IF SUCH ANNUAL NET EARNINGS
ARE INSUFFICIENT FOR THE PAYMENT OF THE SAME, THEN ALL SUCH NET
EARNINGS SHALL BE DISTRIBUTED PRO RATA AMONG THE HOLDERS OF SAID CLASS
A DEBENTURES.  AFTER THE PAYMENT OF 2 1/2 PER CENT UPON THE FACE VALUE
OF CLASS A DEBENTURES, THE STOCKHOLDERS OF THE COMPANY ARE ENTITLED TO
RECEIVE THE BALANCE OF SUCH NET EARNINGS UNTIL 2 1/2 PER CENT SHALL
HAVE BEEN PAID OUT OF THE SAME UPON THE PAR VALUE OF THE SAID STOCK,
AND ALL SURPLUS NET EARNINGS THEN REMAINING SHALL BE PAID TO THE
HOLDERS OF CLASS A DEBENTURES AND OF THE STOCK PRO RATA UNTIL FIVE PER
CENT SHALL HAVE BEEN PAID UPON THE FACE VALUE OF SAID DEBENTURES AND
UPON THE PAR OF SAID STOCK FOR SUCH YEAR, AND ANY SURPLUS NET EARNINGS
ARISING IN SUCH YEAR WHICH MAY THEN REMAIN SHALL BE PAID TO AND
DISTRIBUTED AMONG THE HOLDERS OF CLASS B DEBENTURES PRO RATA.  NONE OF
SUCH PAYMENTS SHALL BE CUMULATIVE.  THE AMOUNTS, IF ANY, PAYABLE UPON
THIS SERIES OF DEBENTURES OUT OF THE NET EARNINGS IN ANY YEAR, WILL BE
FIXED AND DECLARED BY THE BOARD OF DIRECTORS ON OR BEFORE THE FIRST DAY
OF FEBRUARY, IN THE FOLLOWING YEAR  ..." 

FN2  PETITIONERS ALLEGED THAT, WITH THE EXCEPTION OF THREE YEARS,
RESPONDENT HAD SUBSTANTIAL NET EARNINGS IN EACH YEAR FROM 1924 TO 1943
INCLUSIVE, IN EXCESS OF THE AMOUNTS REQUIRED TO BE PAID AND ACTUALLY
PAID ON THE CLASS A DEBENTURES AND ON THE STOCK.  THE AGGREGATE AMOUNT
OF SUCH NET EARNINGS, AFTER DEDUCTING RESERVES FOR ADDITIONS AND
GENERAL IMPROVEMENTS AND DEPRECIATION, AND AFTER DEDUCTING THE PAYMENTS
ON THE CLASS A DEBENTURES AND THE STOCK WAS ALLEGED TO BE APPROXIMATELY
$1,650,000.  THE AMOUNTS ACTUALLY PAID ON THE CLASS B DEBENTURES DURING
THOSE YEARS WAS $840,000, LEAVING DUE, ACCORDING TO PETITIONERS, ABOUT
$810,000. 

FN3  MR. JUSTICE CARDOZO DISSENTING, ROGERS V. GUARANTY TRUST CO.,
SUPRA, P. 151. 

FN4  IN GIBB, INTERNATIONAL LAW OF JURISDICTION (1926), PP. 212-213,
THE LAW OF ENGLAND AND SCOTLAND IS STATED AS FOLLOWS:  "THE COURT WILL
NOT HOLD ITS HAND UNLESS THERE BE, IN THE CIRCUMSTANCES OF THE CASE,
SUCH HARDSHIP ON THE PARTY SETTING UP THE PLEA AS WOULD AMOUNT TO
VEXATIOUSNESS OR OPPRESSION IF THE COURT PERSISTED IN EXERCISING
JURISDICTION.  THE INCONVENIENCE, THEN, MUST AMOUNT TO ACTUAL HARDSHIP,
AND THIS MUST BE REGARDED AS A CONDITION SINE QUA NON OF SUCCESS IN
PUTTING FORWARD A DEFENCE OF FORUM NON CONVENIENS.  FOR THE GENERAL
RULE IS THAT A COURT POSSESSING JURISDICTION MUST EXERCISE IT UNLESS
THE REASONS TO THE CONTRARY ARE CLEAR AND COGENT." 

IN SOCIETE DU GAZ DE PARIS V. "LES ARMATEURS FRANCAIS", 1926 S.C.
(H.L.)  13, PERHAPS THE LEADING ENGLISH CASE ON THE SUBJECT, A FRENCH
MANUFACTURING COMPANY SUED A FIRM OF FRENCH SHIPOWNERS IN A SCOTTISH
COURT ON A CHARTER-PARTY.  IT PROVIDED THAT THE VESSEL WAS TO LOAD A
CARGO OF COAL IN ENGLAND AND PROCEED TO A FRENCH PORT.  THE VESSEL,
AFTER LOADING, SAILED AND FOUNDERED.  THE PLAINTIFF ATTACHED ANOTHER
VESSEL OF DEFENDANTS FOUND IN A SCOTTISH PORT AND CLAIMED DAMAGES BY
REASON OF THE UNSEAWORTHINESS OF THE VESSEL.  NEITHER PLAINTIFF NOR
DEFENDANT HAD A PLACE OF BUSINESS IN SCOTLAND.  THE BULK OF THE
EVIDENCE NECESSARY TO DETERMINE THE CONTROVERSY WAS FRENCH, NO
MACHINERY EXISTED FOR COMPELLING THE ATTENDANCE OF FRENCH WITNESSES IN
A SCOTTISH COURT, NO QUESTION OF SCOTS LAW WAS INVOLVED, AND A TRIAL IN
SCOTLAND WOULD DEPRIVE DEFENDANTS OF A DEFENSE OPEN UNDER FRENCH LAW. 
A JUDGMENT SUSTAINING THE PLEA OF FORUM NON CONVENIENS WAS SUSTAINED. 
LORD CHANCELLOR CAVE SUMMARIZED THE RULE AS FOLLOWS:  "...  IF IN ANY
CASE IT APPEARED TO THE COURT, AFTER GIVING CONSIDERATION TO THE
INTERESTS OF BOTH PARTIES AND TO THE REQUIREMENTS OF JUSTICE, THAT THE
CASE COULD NOT BE SUITABLY TRIED IN THE COURT IN WHICH IT WAS
INSTITUTED, AND FULL JUSTICE COULD NOT BE DONE THERE TO THE PARTIES,
BUT COULD BE DONE IN ANOTHER COURT, THEN THE FORMER COURT MIGHT GIVE
EFFECT TO THE PLEA BY DECLINING JURISDICTION AND PERMITTING THE ISSUES
TO BE FOUGHT OUT IN THE MORE APPROPRIATE COURT."  PP. 16-17.  LORD SHAW
OF DUNFERMLINE STATED:  "IF IN THE WHOLE CIRCUMSTANCES OF THE CASE IT
BE DISCOVERED THAT THERE IS A REAL UNFAIRNESS TO ONE OF THE SUITORS IN
PERMITTING THE CHOICE OF A FORUM WHICH IS NOT THE NATURAL OR PROPER
FORUM, EITHER ON THE GROUND OF CONVENIENCE OF TRIAL OR THE RESIDENCE OR
DOMICILE OF PARTIES, OR OF ITS BEING EITHER THE LOCUS CONTRACTUS, OR
THE LOCUS SOLUTIONIS, THEN THE DOCTRINE OF FORUM NON CONVENIENS IS
PROPERLY APPLIED."  P. 20. 

AND SEE CANADA MALTING CO. V. PATERSON STEAMSHIPS, 285 U.S. 413, 423,
WHERE MR. JUSTICE BRANDEIS SPEAKING FOR THE COURT SAID, "COURTS OF
EQUITY AND OF LAW ALSO OCCASIONALLY DECLINE, IN THE INTEREST OF
JUSTICE, TO EXERCISE JURISDICTION, WHERE THE SUIT IS BETWEEN ALIENS OR
NON-RESIDENTS OR WHERE FOR KINDRED REASONS THE LITIGATION CAN MORE
APPROPRIATELY BE CONDUCTED IN A FOREIGN TRIBUNAL."  FOR REVIEWS OF THE
CASES SEE BLAIR, THE DOCTRINE OF FORUM NON CONVENIENS IN ANGLO-AMERICAN
LAW, 29 COL. L. REV. 1; FOSTER, PLACE OF TRIAL IN CIVIL ACTIONS, 43
HARV. L. REV. 1217, 44 HARV. L. REV. 41; DAINOW, THE INAPPROPRIATE
FORUM, 29 ILL. L. REV. 867. 

FN5  SEE WALLACE V. MOTOR PRODUCTS CORP., 25 F.2D 655, WHERE A SUIT
WAS BROUGHT IN THE FEDERAL COURT IN MICHIGAN TO ANNUL THE
REORGANIZATION OF A NEW YORK CORPORATION AND TO RESTORE THE
STOCKHOLDERS OF THE OLD CORPORATION TO THE POSITION THEY HAD OCCUPIED
PRIOR TO THE REINCORPORATION; EBERHARD V. NORTHWESTERN LIFE INS. CO.,
210 F. 520, WHERE POLICY HOLDERS OF A WISCONSIN LIFE INSURANCE COMPANY
SUED IN THE FEDERAL COURT IN OHIO FOR AN ACCOUNTING OF DIVIDENDS
RECEIVED AND PAID AND FOR AN INJUNCTION AGAINST THE ELECTION OF
TRUSTEES, AND PRAYING THAT THE TRUSTEES WHO HAD COMMITTED ALLEGEDLY
WRONGFUL ACTS BE DECREED NOT TO BE OFFICERS OF THE COMPANY AND THAT A
RECEIVER OF THE COMPANY BE APPOINTED; BOYER V. TRAVELERS' PROTECTIVE
ASSN., 75 F.2D 440, WHERE SUIT WAS BROUGHT IN THE FEDERAL COURT IN
PENNSYLVANIA TO ENJOIN A MISSOURI CORPORATION FROM ENFORCING CERTAIN
AMENDMENTS TO ITS CONSTITUTION; COHEN V. AMERICAN WINDOW GLASS CO., 126
F.2D 111, WHERE STOCKHOLDERS OF A PENNSYLVANIA CORPORATION SUED IN THE
FEDERAL COURT IN NEW YORK TO ENJOIN A PROPOSED MERGER, TO HAVE DECLARED
ILLEGAL THE PAYMENT OF DIVIDENDS, AND TO HAVE A RECEIVER, RESIDENT IN
PENNSYLVANIA, APPOINTED. 

FN6  GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 467-468, AND CASES
CITED. 

FN7  THE SAME IS TRUE, OF COURSE, OF STATE COURTS.  SEE TAYLOR V.
MUTUAL RESERVE FUND LIFE ASSN., 97 VA. 60, 33 S.E. 385; HOWELL V.
CHICAGO & N.W.R. CO., 51 BARB.  378, 383.  CF. ALSO THE CASES WHERE THE
COURT IN WHICH SUIT IS BROUGHT CANNOT GIVE THE RELIEF NECESSARY TO
PRODUCE AN EQUITABLE RESULT (MARSHALL V. SHERMAN, 148 N.Y. 9, 42 N.E.
419; STATE V. DENTON, 229 MO. 187, 129 S.W. 709) OR WHERE THE RIGHT OF
RECOVERY IS INCAPABLE OF ENFORCEMENT BECAUSE IT IS SO DISSIMILAR TO ANY
WHICH THE COURT, WHOSE JURISDICTION IS INVOKED, RECOGNIZES.  SLATER V.
MEXICAN NATIONAL R. CO., 194 U.S. 120. 

FN8  AMERICAN SEATING CO. V. BULLARD, 290 F. 896, 901, WHERE
STOCKHOLDERS OF A NEW JERSEY CORPORATION, WHO DID NOT CONSENT TO THE
SALE OF ITS ASSETS PURSUANT TO A PLAN OF REORGANIZATION AND
REFINANCING, SUED IN THE FEDERAL COURT IN MICHIGAN TO RECOVER THE VALUE
OF THEIR STOCK; UNITED MILK PRODUCTS CORP. V. LOVELL, 75 F.2D
923(SEMBLE); NATIONAL LOCK CO. V. HOGLAND, 101 F.2D 576(SEMBLE);
OVERFIELD V. PENNROAD CORP., 113 F.2D 6, WHERE STOCKHOLDERS BROUGHT A
DERIVATIVE ACTION IN THE FEDERAL COURT IN PENNSYLVANIA TO RECOVER FOR
WRONGS DONE THEIR COMPANY, A DELAWARE CORPORATION, BY A PENNSYLVANIA
COMPANY; WILLIAMSON V. MISSOURI-KANSAS PIPE LINE CO., SUPRA, (SEMBLE). 
CF. KELLEY V. AMERICAN SUGAR REFINING CO., 139 F.2D 76. 

FN9  HARR V. PIONEER MECHANICAL CORP., 65 F.2D 332, WHERE
STOCKHOLDERS OF A DELAWARE CORPORATION SUED IN THE FEDERAL COURT IN NEW
YORK TO ENJOIN THE SALE OF STOCK ON THE REPRESENTATION THAT IT HAD
PRIORITY OVER THE SHARES HELD BY PLAINTIFFS; AMERICAN CREOSOTE WORKS V.
POWELL, 298 F. 417, WHERE STOCKHOLDERS OF A MARYLAND CORPORATION SUED
IN THE FEDERAL COURT IN LOUISIANA TO ANNUL AND CANCEL THE ISSUANCE OF
CERTAIN STOCK. 

FN10  THAT IS THE USUAL RULE IN SUITS TO COMPEL THE DECLARATION OF
DIVIDENDS.  DODGE V. FORD MOTOR CO., 204 MICH. 459, 170 N.W. 668; MOREY
V. FISH BROS. WAGON CO., 108 WIS. 520, 529, 84 N.W. 862; HISCOCK V.
LACY, 9 MISC. 578, 30 N.Y.S. 860; KASSEL V. EMPIRE TINWARE CO., 178
APP. DIV. 176, 164 N.Y.S. 1033. 

SEE SPELLMAN, CORPORATE DIRECTORS (1931) SEC. 141; WEINER, THEORY OF
ANGLO-AMERICAN DIVIDEND LAW, 29 COL. L. REV. 461; BALLANTINE & HILLS,
CORPORATE CAPITAL AND RESTRICTIONS UPON DIVIDENDS UNDER MODERN
CORPORATION LAWS, 23 CALIF. L. REV. 229. 

FN11  FOR THE DECREE ENTERED IN DODGE V. FORD MOTOR CO., SUPRA NOTE
9, SEE KALES V. WOODWORTH, 20 F.2D 395, 396.  AND SEE BOARDMAN V. LAKE
SHORE & M.S.R. CO., 84 N.Y. 157, 180; KASSEL V. EMPIRE TINWARE CO.,
SUPRA NOTE 10, P. 180. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






SCHENLEY CORP. V. UNITED STATES, 326 U.S. 432 


NO. 560.  DECIDED JANUARY 2, 1946.  - 61 F.SUPP.  981, AFFIRMED. 


IN ORDER TO OBTAIN A DETERMINATION AS TO WHETHER IT WAS A "CONTRACT
CARRIER BY MOTOR VEHICLE" AS DEFINED BY SEC. 203(A)(15) OF PART II OF
THE INTERSTATE COMMERCE ACT OR A "PRIVATE CARRIER OF PROPERTY BY MOTOR
VEHICLE" AS DEFINED BY SEC. 203(A)(17), ONE OF THE APPELLANTS APPLIED
TO THE INTERSTATE COMMERCE COMMISSION FOR A PERMIT UNDER SEC. 209(B) TO
OPERATE AS A "CONTRACT CARRIER."  IN THE PROCEEDINGS BEFORE THE
COMMISSION, IT MOVED TO DISMISS ITS OWN APPLICATION ON THE GROUND THAT
THE PROPOSED OPERATIONS WERE NOT SUCH AS TO MAKE IT A "CONTRACT
CARRIER," INTRODUCED NO EVIDENCE TO PROVE COMPLIANCE WITH SEC. 209(B),
AND SOUGHT A RULING BY THE COMMISSION THAT IT COULD CARRY ON ITS
OPERATIONS AS A "PRIVATE CARRIER" WITHOUT OBTAINING A PERMIT.  IT
CONTENDED THAT IT WAS A "PRIVATE CARRIER" BECAUSE ITS OPERATIONS WERE
TO BE PERFORMED FOR ITS PARENT CORPORATION (WHICH OWNED ALL OF
APPLICANT'S STOCK) AND FOR OTHER CORPORATIONS OWNED OR CONTROLLED BY
THE PARENT.  THE COMMISSION RULED IN ITS REPORT THAT APPLICANT WAS A
"CONTRACT CARRIER" AND NOT A "PRIVATE CARRIER" AND MADE THIS REPORT A
PART OF AN ORDER DENYING THE APPLICATION BECAUSE OF FAILURE TO SHOW
COMPLIANCE WITH SEC. 209(B).  APPLICANT AND ITS PARENT CORPORATION SUED
TO SET ASIDE THE COMMISSION'S ORDER.  HELD: 

1.  THE PARENT CORPORATION HAD NO STANDING TO SUE, SINCE IT DID NOT
APPLY FOR A PERMIT AND ITS SOLE INTEREST IN THE PERMIT SOUGHT BY THE
APPLICANT WAS THAT OF A STOCKHOLDER.  P. 435. 

2.  THE PARENT CORPORATION IS ADEQUATELY REPRESENTED FOR THE PURPOSES
OF SUCH A SUIT BY THE SUBSIDIARY, WHOSE CONDUCT OF THE LITIGATION IT
CONTROLS.  P. 435. 

3.  IT WAS APPROPRIATE FOR THE COMMISSION TO TREAT THE FILING OF AN
APPLICATION UNDER SEC. 209(B), WITH A REQUEST THAT IT BE DISMISSED ON
THE GROUND THAT IT IS NOT REQUIRED, AS A PROPER METHOD OF RAISING THE
ISSUE WHETHER THE APPLICANT IS SUBJECT TO THE ACT.  CORNELL STEAMBOAT
CO. V. UNITED STATES, 321 U.S. 634, 635, REAFFIRMED.  P. 436. 

4.  THE COMMISSION'S ORDER DETERMINING THAT APPLICANT IS SUBJECT TO
THE ACT IS A REVIEWABLE ORDER.  P. 436. 

5.  APPLICANT'S PROPOSED OPERATIONS WOULD CLEARLY CONSTITUTE IT A
"CONTRACT" RATHER THAN A "PRIVATE" CARRIER.  P. 436. 

6.  WHILE CORPORATE ENTITIES MAY BE DISREGARDED WHEN THEY ARE USED TO
AVOID A CLEAR LEGISLATIVE PURPOSE, THEY WILL NOT BE DISREGARDED WHERE
THOSE IN CONTROL HAVE DELIBERATELY ADOPTED THE CORPORATE FORM IN ORDER
TO SECURE ITS ADVANTAGES AND WHERE NO VIOLENCE TO THE LEGISLATIVE
PURPOSE IS DONE BY TREATING THE CORPORATION AS A SEPARATE LEGAL
PERSON.  P. 437. 

7.  THE FACT THAT SEVERAL CORPORATIONS ARE USED IN CARRYING ON ONE
BUSINESS DOES NOT RELIEVE THEM OF THEIR SEVERAL STATUTORY OBLIGATIONS. 
P. 437. 

SCHENLEY DISTILLERS CORP. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF DELAWARE. 

APPEAL FROM A JUDGMENT OF A DISTRICT COURT OF THREE JUDGES DISMISSING
A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

PER CURIAM. 

THIS IS AN APPEAL FROM A JUDGMENT OF A DISTRICT COURT, THREE JUDGES
SITTING, CONSTITUTED UNDER THE URGENT DEFICIENCIES ACT, 38 STAT. 220,
28 U.S.C. SEC. 47, DISMISSING APPELLANTS' PETITION TO SET ASIDE AN
ORDER OF THE INTERSTATE COMMERCE COMMISSION.  APPELLANT SCHENLEY
DISTILLERIES MOTOR DIVISION, INC., APPLIED TO THE COMMISSION FOR A
PERMIT, UNDER SEC. 209(B) OF PART II OF THE INTERSTATE COMMERCE ACT, 49
U.S.C. SEC. 309(B), AUTHORIZING OPERATION AS A "CONTRACT CARRIER BY
MOTOR VEHICLE" OF SPECIFIED COMMODITIES IN INTERSTATE COMMERCE BETWEEN
SPECIFIED POINTS.  AT THE OUTSET OF THE PROCEEDINGS BEFORE THE
COMMISSION, THE APPELLANT MOVED FOR DISMISSAL OF THE APPLICATION ON THE
GROUND THAT THE PROPOSED OPERATIONS WERE NOT SUCH AS TO CONSTITUTE
APPLICANT A "CONTRACT CARRIER BY MOTOR VEHICLE," DEFINED BY SEC.
203(A)(15) OF THE ACT, 49 U.S.C. SEC. 303(A)(15), AS "ANY PERSON WHICH,
UNDER INDIVIDUAL CONTRACTS OR AGREEMENTS, ENGAGES IN THE TRANSPORTATION
(OTHER THAN TRANSPORTATION REFERRED TO IN PARAGRAPH (14) AND THE
EXCEPTION THEREIN) BY MOTOR VEHICLE OF PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE FOR COMPENSATION." 

APPLICANT CONTENDED AT THE HEARING THAT IT WAS A "PRIVATE CARRIER OF
PROPERTY BY MOTOR VEHICLE," WHICH IS DEFINED BY SEC. 203(A)(17) AS "ANY
PERSON NOT INCLUDED IN THE TERMS 'COMMON CARRIER BY MOTOR VEHICLE' OR
'CONTRACT CARRIER BY MOTOR VEHICLE', WHO OR WHICH TRANSPORTS IN
INTERSTATE OR FOREIGN COMMERCE BY MOTOR VEHICLE PROPERTY OF WHICH SUCH
PERSON IS THE OWNER, LESSEE, OR BAILEE, WHEN SUCH TRANSPORTATION IS FOR
THE PURPOSE OF SALE, LEASE, RENT, OR BAILMENT, OR IN FURTHERANCE OF ANY
COMMERCIAL ENTERPRISE." 

APPLICANT INTRODUCED NO EVIDENCE TO PROVE COMPLIANCE WITH THE
REQUIREMENTS SET FORTH BY SEC. 209(B) FOR GRANTING A PERMIT AS A
"CONTRACT CARRIER" BUT SOUGHT A RULING BY THE COMMISSION THAT IT COULD
CARRY ON ITS OPERATIONS AS A "PRIVATE CARRIER" WITHOUT OBTAINING A
PERMIT.  STATING THAT "THE PRIMARY REASON FOR FILING THIS APPLICATION
WAS TO SECURE A DETERMINATION AS TO WHETHER THE INVOLVED OPERATIONS
WERE THOSE OF A CONTRACT CARRIER OF PROPERTY BY MOTOR VEHICLE OR OF A
PRIVATE CARRIER," DIVISION 5 OF THE COMMISSION IN ITS REPORT RULED THAT
THE APPLICANT WAS A "CONTRACT CARRIER" AND NOT A "PRIVATE CARRIER."  AS
NO EVIDENCE HAD BEEN INTRODUCED TO SHOW THAT THE PROPOSED OPERATIONS
WOULD COMPLY WITH SEC. 209(B), DIVISION 5 MADE ITS ORDER DENYING THE
APPLICATION, AND MADE THE REPORT A PART OF THE ORDER.  RECONSIDERATION
BY THE FULL COMMISSION WAS DENIED. 

THIS SUIT TO SET ASIDE THE COMMISSION'S ORDER WAS BROUGHT BY THE
APPLICANT, SCHENLEY DISTILLERIES MOTOR DIVISION, AND BY SCHENLEY
DISTILLERS CORPORATION, OWNER OF ALL THE STOCK OF THE FORMER.  THE
DISTRICT COURT HELD THAT IT HAD JURISDICTION TO REVIEW THE ORDER.  IT
DISMISSED THE SUIT AS TO THE PARENT CORPORATION ON THE GROUND THAT IT
HAD NO LEGAL INTEREST SUFFICIENT TO ENTITLE IT TO MAINTAIN SUIT.  THE
COURT HELD THAT THE COMMISSION PROPERLY RULED THAT THE APPLICANT WAS A
"CONTRACT CARRIER," AND ACCORDINGLY DISMISSED THE COMPLAINT. 

THE DISTRICT COURT RIGHTLY HELD THAT THE PARENT CORPORATION HAD NO
STANDING TO SUE.  IT DID NOT ASK THAT A PERMIT BE ISSUED TO IT, AND ITS
SOLE INTEREST IN THE PERMIT SOUGHT FOR ITS CO-APPELLANT WAS THAT OF A
STOCKHOLDER.  WE HAVE HELD THAT A MINORITY STOCKHOLDER OF A CARRIER
CORPORATION CANNOT BRING SUIT TO SET ASIDE A COMMISSION ORDER AGAINST
THE CORPORATION.  PITTSBURGH & W. VA. R. CO. V. UNITED STATES, 281 U.S.
479, 486-488.  A PARENT CORPORATION WHICH BY ITS STOCK OWNERSHIP
CONTROLS ITS SUBSIDIARY, AND WHICH AS A PARTY LITIGANT ASSERTS ONLY ITS
STOCKHOLDER'S DERIVATIVE RIGHTS TO HAVE ITS SUBSIDIARY SECURE THE
PERMIT, CF. AMERICAN POWER CO. V. S.E.C., 325 U.S. 385, 389, IS EVEN
LESS AGGRIEVED BY THE COMMISSION'S ORDER DENYING THE PERMIT THAN WOULD
BE A MINORITY STOCKHOLDER.  FOR THE PARENT IS ADEQUATELY REPRESENTED
FOR PURPOSES OF SUIT BY THE SUBSIDIARY WHOSE CONDUCT OF THE LITIGATION
IT CONTROLS.  WE CONCLUDE THAT THE CHARACTER OF A STOCKHOLDER'S
INTEREST IN THIS REGARD IS NOT SO ALTERED BY THE MERE FACTS THAT IT
OWNS ALL THE STOCK OF THE CORPORATION AGAINST WHICH THE COMMISSION'S
ORDER IS ENTERED AND THAT THE PARENT MANAGES AND CONTROLS ITS
SUBSIDIARY, AS TO GIVE THE STOCKHOLDER STANDING TO SUE TO SET ASIDE THE
COMMISSION'S ORDER. 

AS TO APPELLANT SCHENLEY DISTILLERIES MOTOR DIVISION, INC., THE
APPELLEE URGES THAT THE JUDGMENT SHOULD BE AFFIRMED ON THE GROUND THAT
THE APPELLANT MADE NO SHOWING SUFFICIENT TO REQUIRE THE ISSUANCE OF THE
PERMIT SOUGHT BY THE APPLICATION AND THAT THUS THE COMMISSION'S ORDER
RESTS ON A CONTROLLING GROUND, I.E., LACK OF EVIDENCE.  BUT THERE
REMAINS THE QUESTION WHETHER THE COMMISSION'S DETERMINATION THAT
APPELLANT WILL BE A "CONTRACT CARRIER" IS REVIEWABLE IN THE PRESENT
SUIT.  THE COMMISSION MADE ITS REPORT A PART OF ITS ORDER, AND THE
REPORT DENIED THE RELIEF WHICH APPELLANT SOUGHT, NAMELY, A
DETERMINATION THAT IT WAS A "PRIVATE CARRIER" ENTITLED TO CARRY ON ITS
OPERATIONS WITHOUT A PERMIT AND WITHOUT SUBJECTING ITSELF TO CRIMINAL
PROCEEDINGS.  THE COMMISSION HAS TREATED THE FILING OF AN APPLICATION
UNDER SEC. 209(B) WITH A REQUEST THAT THE APPLICATION BE DISMISSED ON
THE GROUND THAT IT IS NOT REQUIRED, AS A PROPER METHOD OF RAISING THE
ISSUE WHETHER THE APPLICANT IS SUBJECT TO THE ACT.  ANY OTHER
CONSTRUCTION OF THAT SECTION WOULD MAKE IT NECESSARY FOR A CARRIER TO
TAKE THE RISK OF OPERATING ILLEGALLY AND INCURRING CRIMINAL AND OTHER
PENALTIES IN ORDER TO SECURE A DETERMINATION WHETHER IT IS WITHIN THE
PERMIT REQUIREMENT.  WE HAVE ALREADY DECIDED THAT THE COURSE FOLLOWED
HERE WAS "APPROPRIATE," AND THAT AN ORDER DETERMINING THAT THE
APPELLANT IS WITHIN THE PERMIT REQUIREMENT IS A REVIEWABLE ORDER. 
CORNELL STEAMBOAT CO. V. UNITED STATES, 321 U.S. 634, 635.  WE REAFFIRM
THAT HOLDING. 

WE THINK THE DISTRICT COURT WAS PLAINLY RIGHT IN UPHOLDING THE
COMMISSION'S DECISION THAT APPELLANT'S PROPOSED OPERATIONS WOULD
CONSTITUTE IT A "CONTRACT" RATHER THAN A "PRIVATE" CARRIER. 
APPELLANT'S CONTENTION TO THE CONTRARY IS BASED ON THE FACT THAT ITS
OPERATIONS WERE TO BE PERFORMED FOR ITS PARENT AND FOR OTHER
CORPORATIONS OWNED OR CONTROLLED BY THE PARENT.  APPELLANT SAYS THAT
THE TRANSPORTATION WILL BE IN FURTHERANCE OF ONE "COMMERCIAL
ENTERPRISE" WITHIN THE MEANING OF SEC. 203(A)(17).  BUT THAT SECTION
APPLIES ONLY TO THE EXTENT TO WHICH SEC. 203(A)(15) DOES NOT, AND THE
EVIDENCE SUPPORTS THE COMMISSION'S FINDING THAT THE TRANSPORTATION WAS
TO BE "FOR COMPENSATION" FROM APPELLANT'S PARENT AND THE OTHER
CORPORATIONS CONTROLLED BY THE PARENT.  APPELLANT URGES THAT WE
DISREGARD THE SEPARATE CORPORATE ENTITIES WHICH ARE TO PAY COMPENSATION
TO APPELLANT FOR THE TRANSPORTATION AND TREAT THE CORPORATIONS
CONTROLLED BY APPELLANT'S PARENT AS ONE SINGLE COMMERCIAL ENTERPRISE. 
WHILE CORPORATE ENTITIES MAY BE DISREGARDED WHERE THEY ARE MADE THE
IMPLEMENT FOR AVOIDING A CLEAR LEGISLATIVE PURPOSE, THEY WILL NOT BE
DISREGARDED WHERE THOSE IN CONTROL HAVE DELIBERATELY ADOPTED THE
CORPORATE FORM IN ORDER TO SECURE ITS ADVANTAGES AND WHERE NO VIOLENCE
TO THE LEGISLATIVE PURPOSE IS DONE BY TREATING THE CORPORATE ENTITY AS
A SEPARATE LEGAL PERSON.  ONE WHO HAS CREATED A CORPORATE ARRANGEMENT,
CHOSEN AS A MEANS OF CARRYING OUT HIS BUSINESS PURPOSES, DOES NOT HAVE
THE CHOICE OF DISREGARDING THE CORPORATE ENTITY IN ORDER TO AVOID THE
OBLIGATIONS WHICH THE STATUTE LAYS UPON IT FOR THE PROTECTION OF THE
PUBLIC. 

THE FACT THAT SEVERAL CORPORATIONS ARE USED IN CARRYING ON ONE
BUSINESS DOES NOT RELIEVE THEM OF THEIR SEVERAL STATUTORY OBLIGATIONS
MORE THAN IT RELIEVES THEM OF THE TAXES SEVERALLY LAID UPON THEM.  "IF
THE ONE BUSINESS COULD NOT BE CARRIED ON WITHOUT TWO CORPORATIONS
TAKING PART IN IT, EACH MUST PAY, BY THE PLAIN WORDS OF THE ACT." 
EDWARDS V. CHILE COPPER CO., 270 U.S. 452, 456.  CF. GRAY V. POWELL,
314 U.S. 402, 414; MOLINE PROPERTIES V. COMMISSIONER, 319 U.S. 436. 
AFFIRMED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









MISSISSIPPI PUB. CORP. V. MURPHREE, 326 U.S. 438 


NO. 234.  ARGUED DECEMBER 12, 1945.  - DECIDED JANUARY 2, 1946.  - 149
F.2D 138, AFFIRMED. 


RESPONDENT, A RESIDENT OF THE NORTHERN DISTRICT OF MISSISSIPPI,
BROUGHT SUIT IN THE FEDERAL DISTRICT COURT FOR THAT DISTRICT AGAINST
PETITIONER, A DELAWARE CORPORATION HAVING AN OFFICE AND PLACE OF
BUSINESS IN THE SOUTHERN DISTRICT OF MISSISSIPPI, TO RECOVER DAMAGES IN
AN AMOUNT EXCEEDING $3,000 FOR LIBEL PUBLISHED IN THE SOUTHERN
DISTRICT.  THE SUIT WAS BEGUN BY SERVICE OF SUMMONS IN THE SOUTHERN
DISTRICT BY THE UNITED STATES MARSHAL UPON THE AGENT DESIGNATED BY
PETITIONER TO RECEIVE SERVICE OF PROCESS WITHIN THE STATE.  HELD: 

1.  THE CASE BEING OF A CIVIL NATURE, THE AMOUNT IN CONTROVERSY
EXCEEDING $3,000, AND THE PARTIES BEING OF DIVERSE CITIZENSHIP, THE
DISTRICT COURT HAD JURISDICTION OF THE SUBJECT MATTER.  P. 440. 

2.  SINCE THE SOLE GROUND OF FEDERAL JURISDICTION WAS DIVERSITY OF
CITIZENSHIP AND SUIT WAS BROUGHT IN THE DISTRICT OF THE PLAINTIFF'S
RESIDENCE, THERE WAS NO WANT OF VENUE UNDER SEC. 51 OF THE JUDICIAL
CODE.  P. 441. 

3.  PETITIONER WAS PROPERLY BROUGHT BEFORE THE DISTRICT COURT FOR THE
NORTHERN DISTRICT AND SUBJECTED TO ITS JUDGMENT IN THE SUIT BY SERVICE
OF SUMMONS ON PETITIONER'S AGENT IN THE SOUTHERN DISTRICT, SINCE THIS
WAS AUTHORIZED BY RULES 4(D)(3) AND 4(F) OF THE RULES OF CIVIL
PROCEDURE.  P. 443. 

4.  AS THUS APPLIED, RULE 4(F) OF THE RULES OF CIVIL PROCEDURE IS IN
HARMONY WITH THE ENABLING ACT UNDER WHICH IT WAS PROMULGATED AND WITH
THE STATUTES FIXING VENUE AND THE JURISDICTION OF THE DISTRICT COURTS. 
P. 445. 

5.  BY CONSENTING TO SERVICE OF PROCESS UPON ITS AGENT RESIDING IN
THE SOUTHERN DISTRICT, PETITIONER RENDERED ITSELF "PRESENT" THERE FOR
PURPOSES OF SERVICE.  P. 442. 

6.  BY APPOINTING AN AGENT TO RECEIVE SERVICE, PETITIONER CONSENTED
TO SUITS WITHIN THE STATE IN COURTS WHICH APPLY THE LAW OF THE STATE,
WHETHER THEY BE STATE OR FEDERAL COURTS.  P. 443. 

7.  THE FACT THAT THIS COURT PROMULGATED THE RULES OF CIVIL PROCEDURE
AS FORMULATED AND RECOMMENDED BY THE ADVISORY COMMITTEE DOES NOT
FORECLOSE CONSIDERATION OF THEIR VALIDITY, MEANING OR CONSTRUCTION; BUT
IN ASCERTAINING THEIR MEANING THE CONSTRUCTION GIVEN TO THEM BY THE
COMMITTEE IS OF WEIGHT.  P. 444. 

8.  RULE 4(F) WAS DEVISED TO PERMIT SERVICE OF PROCESS ANYWHERE
WITHIN A STATE IN WHICH THE DISTRICT COURT ISSUING THE PROCESS IS HELD
AND WHERE THE STATE EMBRACES TWO OR MORE DISTRICTS.  P. 444. 

9.  IT WAS ADOPTED WITH PARTICULAR REFERENCE TO SUITS AGAINST A
FOREIGN CORPORATION HAVING AN AGENT TO RECEIVE SERVICE OF PROCESS
RESIDENT IN A DISTRICT WITHIN THE STATE OTHER THAN THAT IN WHICH THE
SUIT IS BROUGHT.  P. 444. 

10.  RULE 4(F) DOES NOT CONFLICT WITH RULE 82 OR THE STATUTES FIXING
VENUE AND JURISDICTION OF THE DISTRICT COURTS, SINCE IT DOES NOT
ENLARGE OR DIMINISH THE VENUE OR JURISDICTION OF THE DISTRICT COURTS
BUT SERVES ONLY TO IMPLEMENT THE JURISDICTION OVER THE SUBJECT MATTER
WHICH CONGRESS HAS CONFERRED, BY PROVIDING A PROCEDURE BY WHICH THE
DEFENDANT MAY BE BROUGHT INTO COURT AT THE PLACE WHERE CONGRESS HAS
DECLARED THAT SUIT MAY BE MAINTAINED.  P. 444. 

11.  RULE 4(F) DOES NOT "ABRIDGE, ENLARGE, NOR MODIFY THE SUBSTANTIVE
RIGHTS OF ANY LITIGANT," SINCE IT IS A RULE OF PROCEDURE AND NOT OF
SUBSTANTIVE RIGHT.  P. 445. 

12.  THE PROHIBITION IN THE ENABLING ACT OF ANY ALTERATION OF
SUBSTANTIVE RIGHTS OF LITIGANTS OBVIOUSLY WAS NOT ADDRESSED TO SUCH
INCIDENTAL EFFECTS AS NECESSARILY ATTEND THE ADOPTION OF NEW RULES OF
PROCEDURE UPON THE RIGHTS OF LITIGANTS WHO, AGREEABLY TO RULES OF
PRACTICE AND PROCEDURE, HAVE BEEN BROUGHT BEFORE A COURT AUTHORIZED TO
DETERMINE THEIR RIGHTS.  P. 445. 

MISSISSIPPI PUBLISHING CORP. V. MURPHREE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST.  P. 702, TO REVIEW REVERSAL OF A JUDGMENT
DISMISSING A SUIT ON THE GROUND THAT THE VENUE WAS NOT PROPERLY LAID. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, A RESIDENT OF THE NORTHERN DISTRICT OF MISSISSIPPI,
BROUGHT THIS SUIT IN THE DISTRICT COURT FOR THAT DISTRICT AGAINST
PETITIONER, A DELAWARE CORPORATION HAVING AN OFFICE AND PLACE OF
BUSINESS IN THE SOUTHERN DISTRICT OF MISSISSIPPI, TO RECOVER DAMAGES
FOR LIBEL PUBLISHED IN THE SOUTHERN DISTRICT.  THE SUIT WAS BEGUN BY
SERVICE OF SUMMONS IN THE SOUTHERN DISTRICT BY THE UNITED STATES
MARSHAL UPON THE AGENT DESIGNATED BY PETITIONER TO RECEIVE SERVICE OF
PROCESS WITHIN THE STATE.  THE QUESTIONS FOR OUR DECISION ARE WHETHER
THE VENUE WAS PROPERLY LAID IN THE NORTHERN DISTRICT, AND WHETHER
PETITIONER COULD BE BROUGHT BEFORE THE COURT AND SUBJECTED TO ITS
JUDGMENT IN THE SUIT BY SERVICE OF SUMMONS ON PETITIONER'S AGENT IN THE
SOUTHERN DISTRICT. 

THE DISTRICT COURT GRANTED PETITIONER'S MOTION TO DISMISS THE SUIT ON
THE GROUND THAT THE VENUE WAS NOT PROPERLY LAID IN THE NORTHERN
DISTRICT.  THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED,
149 F.2D 138, HOLDING THAT AS THERE WAS DIVERSITY OF CITIZENSHIP AND AS
THE AMOUNT IN CONTROVERSY EXCEEDED $3,000, THE DISTRICT COURT FOR THE
NORTHERN DISTRICT HAD JURISDICTION, THAT THE VENUE WAS PROPERLY LAID
THERE UNDER THE PROVISIONS OF SEC. 51 OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 112, AND THAT SERVICE OF SUMMONS IN THE SOUTHERN DISTRICT WAS
AUTHORIZED BY RULE 4(F) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  WE
GRANTED CERTIORARI, 326 U.S. 702.  FN1 

THE PRESENT CASE BEING OF A CIVIL NATURE, THE AMOUNT IN CONTROVERSY
EXCEEDING $3,000, AND THE PARTIES BEING OF DIVERSE CITIZENSHIP, THE
DISTRICT COURT HAD JURISDICTION OF THE SUBJECT MATTER OF THE SUIT, THAT
IS, OF THE CLASS OF CASES OF WHICH THE PRESENT IS ONE.  28 U.S.C. SEC.
41(1).  THE COURT HAD JURISDICTION OVER THE PARTIES IF THE PETITIONER
WAS PROPERLY BROUGHT BEFORE THE COURT BY THE SERVICE OF PROCESS WITHIN
THE SOUTHERN DISTRICT.  AND IT COULD RIGHTLY EXERCISE ITS JURISDICTION,
NOTWITHSTANDING PETITIONER'S MOTION, UNLESS THERE WAS WANT OF VENUE. 
VENUE IN THE PRESENT CASE IS CONTROLLED BY SEC. 51 OF THE JUDICIAL
CODE, 28 U.S.C. 112, WHICH PROVIDES, WITH EXCEPTIONS NOT NOW MATERIAL,
THAT "WHERE THE JURISDICTION IS FOUNDED ONLY ON THE FACT THAT THE
ACTION IS BETWEEN CITIZENS OF DIFFERENT STATES, SUITS SHALL BE BROUGHT
ONLY IN THE DISTRICT OF THE RESIDENCE OF EITHER THE PLAINTIFF OR THE
DEFENDANT  ..." 

SINCE THERE WAS JURISDICTION OF THE PRESENT SUIT ON THE SOLE GROUND
OF DIVERSITY OF CITIZENSHIP AND SINCE THE SUIT WAS BROUGHT IN THE
DISTRICT OF THE PLAINTIFF'S RESIDENCE, AS FOUND BY BOTH COURTS BELOW,
THERE WAS, BY SEC. 51 OF THE JUDICIAL CODE, NO WANT OF VENUE AND THE
COURT WAS NOT WARRANTED IN DISMISSING THE SUIT IF THE SERVICE OF
SUMMONS WAS EFFECTIVE TO MAKE THE DEFENDANT A PARTY.  NEIRBO CO. V.
BETHLEHEM CORP., 308 U.S. 165, ON WHICH PETITIONER RELIES, SUPPORTS NO
DIFFERENT CONCLUSION.  THERE THE SOLE GROUND OF JURISDICTION WAS
DIVERSITY OF CITIZENSHIP OF THE PARTIES.  THE FOREIGN CORPORATION WAS
SUED IN THE DISTRICT COURT FOR SOUTHERN NEW YORK, IN WHICH NEITHER THE
PLAINTIFF NOR THE DEFENDANT WAS A CITIZEN OR RESIDENT,  FN2  BUT WHERE
THE DEFENDANT WAS DOING BUSINESS, MAINTAINED AN OFFICE, AND HAD
CONSENTED TO BE SUED BY APPOINTING A RESIDENT AGENT TO RECEIVE SERVICE
OF PROCESS.  RECOGNIZING THAT SEC. 51 OF THE JUDICIAL CODE, IN CASES
WHERE THE JURISDICTION IS FOUNDED ON DIVERSITY OF CITIZENSHIP,
ESTABLISHES VENUE AS THE PLACE WHERE THE SUIT MAY BE MAINTAINED FOR THE
CONVENIENCE OF THE PARTIES, AND THAT THE STATUTORY VENUE FOR A SUIT OF
WHICH THE COURT HAS JURISDICTION MAY BE WAIVED, WE HELD THAT THE
CORPORATION HAD WAIVED OBJECTIONS TO VENUE BY ITS CONSENT TO THE SUIT. 
BY DESIGNATING AN AGENT TO RECEIVE SERVICE OF PROCESS AND CONSENTING TO
BE SUED IN THE COURTS OF THE STATE, THE CORPORATION HAD CONSENTED TO
SUIT IN THE DISTRICT COURT, BEING A COURT SITTING FOR A DISTRICT WITHIN
THE STATE AND APPLYING THERE THE LAWS OF THE STATE, AND IT HAD THUS
WAIVED THE VENUE PROVISIONS OF SEC. 51 OF THE JUDICIAL CODE.  308 U.S.
AT 175.  CF. RAILROAD CO. V. HARRIS, 12 WALL.  65; LAFAYETTE INS. CO.
V. FRENCH, 18 HOW.  404; EX PARTE SCHOLLENBERGER, 96 U.S. 369.  IN THE
PRESENT SUIT THERE WAS NO OCCASION TO ESTABLISH WAIVER OF OBJECTIONS TO
VENUE IN THE NORTHERN DISTRICT OF MISSISSIPPI, SINCE THE STATUTE HAD
PROVIDED IN ADVANCE THAT THERE SHOULD BE VENUE IN THE DISTRICT COURT
FOR THE NORTHERN DISTRICT, WHERE RESPONDENT RESIDED. 

UNLIKE THE CONSENT TO SERVICE IN THE NEIRBO CASE THE CONSENT TO
SERVICE OF PROCESS ON PETITIONER'S AGENT THROUGHOUT THE STATE WAS NOT
SIGNIFICANT AS A WAIVER OF VENUE, BUT IT WAS AN ESSENTIAL STEP IN THE
PROCEDURE BY WHICH PETITIONER WAS BROUGHT BEFORE THE COURT AND RENDERED
AMENABLE TO ITS JUDGMENT IN THE NORTHERN DISTRICT.  BY CONSENTING TO
SERVICE OF PROCESS UPON ITS AGENT RESIDING IN THE SOUTHERN DISTRICT,
PETITIONER RENDERED ITSELF "PRESENT" THERE FOR PURPOSES OF SERVICE. 
SEE EX PARTE SCHOLLENBERGER, SUPRA, 377; CF. INTERNATIONAL SHOE CO. V.
WASHINGTON, 326 U.S. 310.  HAD CONGRESS SPECIFICALLY AUTHORIZED SERVICE
THERE FOR PURPOSES OF SUIT IN THE NORTHERN DISTRICT, PETITIONER WOULD
HAVE BEEN PROPERLY BROUGHT BEFORE THE DISTRICT COURT FOR THE PURPOSES
OF THE PRESENT SUIT, SINCE CONGRESS COULD PROVIDE FOR SERVICE OF
PROCESS ANYWHERE IN THE UNITED STATES.  TOLAND V. SPRAGUE, 12 PET. 300,
328; UNITED STATES V. UNION PACIFIC R. CO., 98 U.S. 569, 604; ROBERTSON
V. RAILROAD LABOR BOARD, 268 U.S. 619, 622. 

CONGRESS, HAVING OMITTED SO TO DIRECT, THE OMISSION WAS SUPPLIED BY
RULE 4(F) OF THE RULES OF CIVIL PROCEDURE, WHICH PROVIDES THAT "ALL
PROCESS OTHER THAN A SUBPOENA MAY BE SERVED ANYWHERE WITHIN THE
TERRITORIAL LIMITS OF THE STATE IN WHICH THE DISTRICT COURT IS HELD." 
IN THE PRESENT CASE THE SERVICE WAS MADE PURSUANT TO RULE 4(D)(3) BY
THE UNITED STATES MARSHAL, WHO DELIVERED THE SUMMONS TO THE AGENT OF
PETITIONER DESIGNATED TO RECEIVE THE SERVICE.  IF THE SERVICE OF THE
SUMMONS WAS VALID PETITIONER WAS PROPERLY BROUGHT BEFORE THE COURT IN
THE NORTHERN DISTRICT, WHICH HAD VENUE AND JURISDICTION OF THE SUBJECT
MATTER OF THE SUIT. 

IT IS SAID THAT PETITIONER, BY APPOINTING AN AGENT TO RECEIVE
SERVICE, HAS ONLY CONSENTED TO SERVICE OF PROCESS IN SUITS BROUGHT IN
THE STATE COURTS AND IN CONFORMITY TO STATE STATUTES REGULATING THE
VENUE, AND THAT IN ANY CASE RULE 4(F) WAS ADOPTED WITHOUT AUTHORITY
SINCE THE ACT OF JUNE 19, 1934, 48 STAT. 1064, 28 U.S.C. SEC. 723B,
WHICH AUTHORIZED THE PROMULGATION OF RULES OF PRACTICE FOR THE DISTRICT
COURTS, DIRECTED THAT THEY "SHALL NEITHER ABRIDGE, ENLARGE, NOR MODIFY
THE SUBSTANTIVE RIGHTS OF ANY LITIGANT," AND BECAUSE THE CONSTRUCTION
GIVEN TO RULE 4(F) BY THE COURT BELOW IS INCONSISTENT WITH RULE 82
WHICH PROVIDES THAT THE RULES "SHALL NOT BE CONSTRUED TO EXTEND OR
LIMIT THE JURISDICTION OF THE DISTRICT COURTS OF THE UNITED STATES OR
THE VENUE OF ACTIONS THEREIN." 

THE ANSWER TO THE SUGGESTION THAT THE CONSENT TO SUIT IN THE STATE IS
A CONSENT TO SUIT ONLY IN THE STATE COURTS AND SUBJECT TO STATE
STATUTES REGULATING VENUE IN THOSE COURTS IS PLAIN.  SUCH CONSENT HAS
BEEN UNIFORMLY CONSTRUED TO MEAN SUITS WITHIN THE STATE WHICH APPLY THE
LAW OF THE STATE, WHETHER THEY BE STATE OR FEDERAL COURTS.  SEE NEIRBO
CO. V. BETHLEHEM CORP., SUPRA, 171; CF. EX PARTE SCHOLLENBERGER, SUPRA,
377; MADISONVILLE TRACTION CO. V. MINING CO., 196 U.S. 239, 255-256;
LOUISVILLE & NASHVILLE R. CO. V. CHATTERS, 279 U.S. 320, 329.  AND
SINCE THE CONSENT IS TO SUITS IN THE FEDERAL COURTS, IT IS A CONSENT TO
SUITS BROUGHT IN CONFORMITY TO THE FEDERAL REGULATIONS GOVERNING THE
JURISDICTION, VENUE AND PROCEDURE OF THOSE COURTS.  EX PARTE
SCHOLLENBERGER, SUPRA, 377; NEIRBO CO. V. BETHLEHEM CORP., SUPRA, 175. 

THE QUESTION REMAINS WHETHER RULE 4(F) IS AN EFFECTIVE MEANS OF
BRINGING THE PETITIONER BEFORE THE DISTRICT COURT IN THE NORTHERN
DISTRICT WHERE THE SUIT WAS PROPERLY BROUGHT IN CONFORMITY TO SEC. 51
OF THE JUDICIAL CODE.  THE FACT THAT THIS COURT PROMULGATED THE RULES
AS FORMULATED AND RECOMMENDED BY THE ADVISORY COMMITTEE DOES NOT
FORECLOSE CONSIDERATION OF THEIR VALIDITY, MEANING OR CONSISTENCY.  BUT
IN ASCERTAINING THEIR MEANING THE CONSTRUCTION GIVEN TO THEM BY THE
COMMITTEE IS OF WEIGHT.  RULE 4(F), AS EXPLAINED BY THE AUTHORIZED
SPOKESMEN FOR THE ADVISORY COMMITTEE, SEE PROCEEDINGS OF WASHINGTON AND
NEW YORK INSTITUTE ON FEDERAL RULES, 291, 292; PROCEEDINGS OF THE
CLEVELAND INSTITUTE ON THE FEDERAL RULES, 205, 206, WAS DEVISED SO AS
TO PERMIT SERVICE OF PROCESS ANYWHERE WITHIN A STATE IN WHICH THE
DISTRICT COURT ISSUING THE PROCESS IS HELD AND WHERE THE STATE EMBRACES
TWO OR MORE DISTRICTS.  IT WAS ADOPTED WITH PARTICULAR REFERENCE TO
SUITS AGAINST A FOREIGN CORPORATION HAVING AN AGENT TO RECEIVE SERVICE
OF PROCESS RESIDENT IN A DISTRICT WITHIN THE STATE OTHER THAN THAT IN
WHICH THE SUIT IS BROUGHT.  IT WAS POINTED OUT THAT THE RULE DID NOT
AFFECT THE JURISDICTION OR VENUE OF THE DISTRICT COURT AS FIXED BY THE
STATUTE, BUT WAS INTENDED AMONG OTHER THINGS TO PROVIDE A PROCEDURAL
MEANS OF BRINGING THE CORPORATION DEFENDANT BEFORE THE COURT IN
CONFORMITY TO ITS CONSENT, BY SERVING THE AGENT WHEREVER HE MIGHT BE
FOUND WITHIN THE STATE.  SEE ALSO HUGHES, FEDERAL PRACTICE, VOL. 17,
SEC. 18993; MOORE, FEDERAL PRACTICE, VOL. 1, P. 360-361. 

IT IS TRUE THAT THE SERVICE OF SUMMONS IS THE PROCEDURE BY WHICH A
COURT HAVING VENUE AND JURISDICTION OF THE SUBJECT MATTER OF THE SUIT
ASSERTS JURISDICTION OVER THE PERSON OF THE PARTY SERVED.  BUT IT IS
EVIDENT THAT RULE 4(F) AND RULE 82 MUST BE CONSTRUED TOGETHER, AND THAT
THE ADVISORY COMMITTEE, IN DOING SO, HAS TREATED RULE 82 AS REFERRING
TO VENUE AND JURISDICTION OF THE SUBJECT MATTER OF THE DISTRICT COURTS
AS DEFINED BY THE STATUTES, SECS. 51 AND 52 OF THE JUDICIAL CODE IN
PARTICULAR, RATHER THAN THE MEANS OF BRINGING THE DEFENDANT BEFORE THE
COURT ALREADY HAVING VENUE AND JURISDICTION OF THE SUBJECT MATTER. 
RULE 4(F) DOES NOT ENLARGE OR DIMINISH THE VENUE OF THE DISTRICT COURT,
OR ITS POWER TO DECIDE THE ISSUES IN THE SUIT, WHICH IS JURISDICTION OF
THE SUBJECT MATTER, INDUSTRIAL ASSN. V. COMMISSIONER, 323 U.S. 310,
313, TO WHICH RULE 82 MUST BE TAKEN TO REFER.  RULE 4(F) SERVES ONLY TO
IMPLEMENT THE JURISDICTION OVER THE SUBJECT MATTER WHICH CONGRESS HAS
CONFERRED, BY PROVIDING A PROCEDURE BY WHICH THE DEFENDANT MAY BE
BROUGHT INTO COURT AT THE PLACE WHERE CONGRESS HAS DECLARED THAT THE
SUIT MAY BE MAINTAINED.  THUS CONSTRUED, THE RULES ARE CONSISTENT WITH
EACH OTHER AND DO NOT CONFLICT WITH THE STATUTE FIXING VENUE AND
JURISDICTION OF THE DISTRICT COURTS. 

WE THINK THAT RULE 4(F) IS IN HARMONY WITH THE ENABLING ACT WHICH, IN
AUTHORIZING THIS COURT TO PRESCRIBE GENERAL RULES FOR THE DISTRICT
COURTS GOVERNING PRACTICE AND PROCEDURE IN CIVIL SUITS IN LAW AND
EQUITY, DIRECTED THAT THE RULES "SHALL NEITHER ABRIDGE, ENLARGE, NOR
MODIFY THE SUBSTANTIVE RIGHTS OF ANY LITIGANT."  UNDOUBTEDLY MOST
ALTERATIONS OF THE RULES OF PRACTICE AND PROCEDURE MAY AND OFTEN DO
AFFECT THE RIGHTS OF LITIGANTS.  CONGRESS' PROHIBITION OF ANY
ALTERATION OF SUBSTANTIVE RIGHTS OF LITIGANTS WAS OBVIOUSLY NOT
ADDRESSED TO SUCH INCIDENTAL EFFECTS AS NECESSARILY ATTEND THE ADOPTION
OF THE PRESCRIBED NEW RULES OF PROCEDURE UPON THE RIGHTS OF LITIGANTS
WHO, AGREEABLY TO RULES OF PRACTICE AND PROCEDURE, HAVE BEEN BROUGHT
BEFORE A COURT AUTHORIZED TO DETERMINE THEIR RIGHTS.  SIBBACH V. WILSON
& CO., 312 U.S. 1, 11-14.  THE FACT THAT THE APPLICATION OF RULE 4(F)
WILL OPERATE TO SUBJECT PETITIONER'S RIGHTS TO ADJUDICATION BY THE
DISTRICT COURT FOR NORTHERN MISSISSIPPI WILL UNDOUBTEDLY AFFECT THOSE
RIGHTS.  BUT IT DOES NOT OPERATE TO ABRIDGE, ENLARGE OR MODIFY THE
RULES OF DECISION BY WHICH THAT COURT WILL ADJUDICATE ITS RIGHTS.  IT
RELATES MERELY TO "THE MANNER AND THE MEANS BY WHICH A RIGHT TO RECOVER
...  IS ENFORCED."  GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 109.  IN
THIS SENSE THE RULE IS A RULE OF PROCEDURE AND NOT OF SUBSTANTIVE
RIGHT, AND IS NOT SUBJECT TO THE PROHIBITION OF THE ENABLING ACT. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE LOWER COURTS HAVE NOT BEEN CONSISTENT IN THE APPLICATION OF
RULE 4(F).  COMPARE CONTRACTING DIVISION, A.C. HORN CORP. V. NEW YORK
LIFE INS. CO., 113 F.2D 864; GIBBS V. EMERSON ELECTRIC MFG. CO., 29
F.SUPP.  810; MELEKOV V. COLLINS, 30 F.SUPP.  159; CARBY V. GRECO, 31
F.SUPP.  251; RICHARD V. FRANKLIN COUNTY DISTILLING CO., 38 F.SUPP. 
513, WITH THE OPINION OF THE COURT OF APPEALS IN THE PRESENT CASE, 149
F.2D 138; DEVIER V. GEORGE COLE MOTOR CO., 27 F.SUPP.  978; ZWERLING V.
NEW YORK & CUBA MAIL S.S. CO., 33 F.SUPP.  721; WILLIAMS V. JAMES, 34
F.SUPP.  61; SALVATORI V. MILLER MUSIC, INC., 35 F.SUPP.  845; ANDRUS
V. YOUNGER BROS., 49 F.SUPP.  499, AND O'LEARY V. LOFTIN, 3 F.R.D. 36. 

FN2  FOR PURPOSES OF JURISDICTION A CORPORATION IS A CITIZEN OR
RESIDENT ONLY OF THE STATE OF ITS ORGANIZATION.  SHAW V. QUINCY MINING
CO., 145 U.S. 444, 451; IN RE KEASBEY & MATTISON CO., 160 U.S. 221,
229; MACON GROCERY CO. V. ATLANTIC COAST LINE, 215 U.S. 501, 509;
SEABOARD RICE CO. V. CHICAGO, R.I. & P.R. CO., 270 U.S. 363, 366. 
MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















RAILROAD BOARD V. DUQUESNE CO., 326 U.S. 446 


ARGUED NOVEMBER 14, 1945.  - DECIDED JANUARY 2, 1946.  - 148 F.2D 473,
REVERSED - 149 F.2D 507, AFFIRMED. 


WHERE A WAREHOUSE COMPANY WHOLLY OWNED BY A RAILROAD COMPANY LOADS AND
UNLOADS GOODS SHIPPED ON THE RAILROAD, IT PERFORMS SERVICES "IN
CONNECTION WITH THE TRANSPORTATION OF  ...  PROPERTY BY RAILROAD"; IT
IS AN "EMPLOYER" WITHIN THE MEANING OF SEC. 1(A) OF THE RAILROAD
RETIREMENT ACT OF 1937 AND SEC. 1(A) OF THE RAILROAD UNEMPLOYMENT
INSURANCE ACT OF 1938; AND ITS EMPLOYEES ARE ENTITLED TO THE BENEFITS
OF THOSE ACTS, EVEN THOUGH THE SERVICES ARE RENDERED TO, AND PAID FOR
BY, THE SHIPPERS.  P. 453. 

RAILROAD RETIREMENT BOARD ET AL. V. DUQUESNE WAREHOUSE CO. 

NO. 95.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT* . 

*TOGETHER WITH NO. 103, DUQUESNE WAREHOUSE CO. V. RAILROAD RETIREMENT
BOARD ET AL., ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA. 

NO. 95.  CERTIORARI, 325 U.S. 848, TO REVIEW AFFIRMANCE OF A
JUDGMENT, 56 F.SUPP.  87, SETTING ASIDE A DECISION OF THE RAILROAD
RETIREMENT BOARD HOLDING THAT RESPONDENT IS AN "EMPLOYER" WITHIN THE
MEANING OF SEC. 1(A) OF THE RAILROAD RETIREMENT ACT. 

NO. 103.  CERTIORARI, 325 U.S. 848, TO REVIEW REVERSAL OF A JUDGMENT
SETTING ASIDE A DECISION OF THE RAILROAD RETIREMENT BOARD HOLDING THAT
PETITIONER IS AN "EMPLOYER" WITHIN THE MEANING OF SEC. 1(A) OF THE
RAILROAD UNEMPLOYMENT INSURANCE ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE RAILROAD RETIREMENT ACT OF 1937, 50 STAT. 307, 45 U.S.C. SEC.
228A, ESTABLISHED A SYSTEM OF ANNUITY, PENSION, AND DEATH BENEFITS FOR
EMPLOYEES OF DESIGNATED CLASSES OF EMPLOYERS.  THE RAILROAD RETIREMENT
BOARD ADJUDICATES CLAIMS OF ELIGIBLE EMPLOYEES FOR THE VARIOUS TYPES OF
BENEFITS CREATED BY THE ACT.  SEC. 10(B).  THE ELIGIBILITY OF AN
EMPLOYEE FOR SUCH BENEFITS IS BASED ON SERVICE TO THOSE INCLUDED IN THE
ACT'S DEFINITION OF "EMPLOYER."  SEC. 1(A).  THE QUESTION AROSE WHETHER
THE DUQUESNE WAREHOUSE CO. WAS SUCH AN "EMPLOYER."  THE BOARD AFTER A
HEARING FOUND IN NO. 95 THAT IT WAS.  DUQUESNE, PURSUANT TO THE
PROVISIONS OF SEC. 11 OF THE ACT, BROUGHT SUIT IN A DISTRICT COURT TO
COMPEL THE BOARD TO SET ASIDE ITS ORDER.  FN1  THAT COURT RENDERED
JUDGMENT FOR DUQUESNE.  56 F.SUPP.  87.  THE CIRCUIT COURT OF APPEALS
AFFIRMED, BY A DIVIDED VOTE.  148 F.2D 473. 

THE RAILROAD UNEMPLOYMENT INSURANCE ACT OF 1938, 52 STAT. 1094, 45
U.S.C. SEC. 351, ESTABLISHED A SYSTEM OF UNEMPLOYMENT INSURANCE FOR
EMPLOYEES OF DESIGNATED CLASSES OF EMPLOYERS.  THE RAILROAD RETIREMENT
BOARD ADJUDICATES CLAIMS OF ELIGIBLE EMPLOYEES FOR UNEMPLOYMENT
INSURANCE PAYMENTS.  SEC. 5(B).  THE ELIGIBILITY OF AN EMPLOYEE FOR
SUCH PAYMENTS IS BASED ON SERVICE TO THOSE INCLUDED IN THE ACT'S
DEFINITION OF "EMPLOYER."  SEC. 1(A).  THE QUESTION AROSE WHETHER
DUQUESNE WAS SUCH AN "EMPLOYER."  THE BOARD AFTER A HEARING FOUND IN
NO. 103 THAT IT WAS.  THE FINDINGS WERE IDENTICAL TO THOSE WHICH THE
BOARD MADE IN NO. 95 AND WERE BASED ON THE SAME RECORD.  DUQUESNE,
PURSUANT TO SEC. 5(F), BROUGHT SUIT IN THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA TO SET ASIDE THAT ORDER.  THAT COURT GAVE JUDGMENT
FOR DUQUESNE.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
REVERSED.  149 F.2D 507.  SINCE THE DEFINITION OF "EMPLOYER" UNDER BOTH
ACTS WAS THE SAME, THERE WAS PRESENTED A CONFLICT IN DECISIONS WHICH
LED US TO GRANT THE PETITIONS FOR WRITS OF CERTIORARI. 

THE MATERIAL PART OF THE DEFINITION OF "EMPLOYER" CONTAINED IN EACH
ACT IS AS FOLLOWS: 

"THE TERM 'EMPLOYER' MEANS ANY CARRIER  ...  AND ANY COMPANY WHICH IS
DIRECTLY OR INDIRECTLY OWNED OR CONTROLLED BY ONE OR MORE SUCH CARRIERS
OR UNDER COMMON CONTROL THEREWITH, AND WHICH OPERATES ANY EQUIPMENT OR
FACILITY OR PERFORMS ANY SERVICE  ...  IN CONNECTION WITH THE
TRANSPORTATION OF PASSENGERS OR PROPERTY BY RAILROAD, OR THE RECEIPT,
DELIVERY, ELEVATION, TRANSFER IN TRANSIT, REFRIGERATION OR ICING,
STORAGE, OR HANDLING OF PROPERTY TRANSPORTED BY RAILROAD  ..." 

DUQUESNE MEETS THE REQUIREMENTS OF THE FIRST PART OF THE DEFINITION. 
FOR IT IS A CORPORATION, ALL OF WHOSE STOCK IS OWNED BY THE
PENNSYLVANIA RAILROAD COMPANY, A CARRIER BY RAILROAD.  THE QUESTION IS
WHETHER DUQUESNE "PERFORMS ANY SERVICE" (1) "IN CONNECTION WITH THE
TRANSPORTATION OF ...  PROPERTY BY RAILROAD" OR (2) "IN CONNECTION WITH
...  THE RECEIPT, DELIVERY  ...  STORAGE, OR HANDLING OF PROPERTY
TRANSPORTED BY RAILROAD." 

DUQUESNE OPERATES TWO WAREHOUSES OWNED AND LEASED TO IT BY THE
PENNSYLVANIA, ONE IN PITTSBURGH AND THE OTHER IN EAST LIBERTY, WITHIN
THE PITTSBURGH CITY LIMITS.  EACH WAREHOUSE IS ON A RAIL SIDING OF THE
PENNSYLVANIA.  AT EAST LIBERTY, DUQUESNE HANDLES AND STORES CARLOAD
SUGAR, ALL OF WHICH COMES IN AND GOES OUT OVER THE PENNSYLVANIA.  THE
SUGAR IS HANDLED BY DUQUESNE UNDER SO-CALLED STORAGE-IN-TRANSIT
PRIVILEGES COVERED BY TARIFFS FILED BY THE PENNSYLVANIA WITH THE
INTERSTATE COMMERCE COMMISSION.  FN2  DUQUESNE UNLOADS THE SUGAR FROM
THE PENNSYLVANIA'S CARS ON ARRIVAL AND RELOADS THE SUGAR INTO
PENNSYLVANIA'S CARS ON THEIR DEPARTURE.  BY THE TARIFF THE OWNERS ARE
REQUIRED TO DO THE LOADING AND UNLOADING.  THE WORK OF UNLOADING AND
LOADING IS PERFORMED FOR THE OWNER BY DUQUESNE, WHO BILLS THE OWNER FOR
THAT SERVICE AS WELL AS FOR STORAGE AND OTHER SERVICES RENDERED.  AT
ITS PITTSBURGH WAREHOUSE DUQUESNE HANDLES FREIGHT WHICH HAS COME IN, OR
IS DESTINED TO MOVEMENT, OVER THE PENNSYLVANIA, OR WHICH HAS BOTH COME
IN AND IS GOING OUT OVER THE PENNSYLVANIA.  THE COMMODITIES HANDLED AT
THAT PLACE ARE HAULED IN BOTH CARLOAD AND LESS-THAN-CARLOAD LOTS. 
DUQUESNE LOADS AND UNLOADS THE CARLOAD SHIPMENTS AS THEY ARRIVE AT AND
DEPART FROM ITS PLATFORM, STORES THE GOODS, AND PERFORMS OTHER HANDLING
SERVICES IN CONNECTION WITH THEIR RECEIPT AND DELIVERY.  DUQUESNE
CHARGES THE OWNER FOR THESE SERVICES.  IN THE CASE OF INCOMING LESS
THAN-CARLOAD SHIPMENTS THE FREIGHT IS UNLOADED BY THE PENNSYLVANIA FROM
THE CARS TO ITS PLATFORM AND IS DELIVERED TO AND RECEIVED BY DUQUESNE
THERE.  IN THE CASE OF OUTGOING LESS-THAN-CARLOAD SHIPMENTS, DUQUESNE
DELIVERS THE FREIGHT ON THE PENNSYLVANIA'S PLATFORM.  PENNSYLVANIA THEN
ISSUES ITS BILL OF LADING, LOADS THE FREIGHT INTO CARS, AND MOVES THEM
OUT.  DURING A PART OF THE PERIOD RELEVANT HERE,  FN3  DUQUESNE ALSO
PERFORMED UNLOADING, STORING AND RELOADING SERVICES AND CERTAIN OTHER
TRANSIT SERVICES AT ERIE, PENNSYLVANIA, IN CONNECTION WITH CARLOAD
SHIPMENTS OF NEWSPRINT PAPER WHICH WERE ENTITLED TO STORAGE-IN-TRANSIT
PRIVILEGES UNDER THE TARIFFS.  THESE SERVICES WERE SIMILAR TO THOSE
PERFORMED BY DUQUESNE AT EAST LIBERTY.  FN4 

OF THE TOTAL SPACE USED BY DUQUESNE AT ITS WAREHOUSES AT EAST LIBERTY
AND PITTSBURGH, ABOUT 30 PER CENT WAS DEVOTED TO THE HANDLING OF
FREIGHT ACCORDED STORAGE-IN-TRANSIT PRIVILEGES IN 1936; ABOUT 12.5 PER
CENT IN 1937; ABOUT 12.5 PER CENT IN 1938.  DURING THE PERIOD OF
OPERATION AT ERIE, ALL THE SPACE AT THAT POINT WAS USED FOR SUCH
FREIGHT. 

IT APPEARS THAT THE DEFINITION OF "EMPLOYER" IN THE PRESENT ACTS
DERIVES WITHOUT SUBSTANTIAL CHANGE FROM THE RAILWAY LABOR ACT, 48 STAT.
1185, 45 U.S.C. SEC. 151, FIRST.  FN5  WE ARE REFERRED TO THE
LEGISLATIVE HISTORY OF THE RAILWAY LABOR ACT WHICH WAS SPONSORED BY MR.
EASTMAN, FEDERAL CO-ORDINATOR OF TRANSPORTATION.  RELIANCE IS MADE ON
HIS TESTIMONY AT THE HEARINGS  FN6  AS INDICATING THAT THE WORDS IN THE
CARRIER DEFINITION IN THE RAILWAY LABOR ACT DESCRIPTIVE OF
TRANSPORTATION SERVICE WERE TAKEN FROM THE INTERSTATE COMMERCE ACT,
FN7  41 STAT. 474, 54 STAT. 899, 49 U.S.C. SEC. 1.  THE RAILROAD
RETIREMENT ACT OF 1937 WAS SPONSORED BY BOTH LABOR AND MANAGEMENT,
WHOSE VIEWS WERE PRESENTED AT THE HEARINGS BY GEORGE M. HARRISON.  FN8
REFERENCES ARE MADE TO HIS TESTIMONY THAT THE CARRIER AFFILIATES
EMBRACED WITHIN THE DEFINITION OF "EMPLOYER" ARE THOSE WHO ARE ENGAGED
IN SERVICE THAT IS PART OF RAILWAY TRANSPORTATION.  FN9  DUQUESNE
ARGUES ON THE BASIS OF THAT LEGISLATIVE HISTORY THAT ANY SERVICE "IN
CONNECTION WITH THE TRANSPORTATION" OF PROPERTY OR ANY SERVICE "IN
CONNECTION WITH" THE RECEIPT, ETC., OF "PROPERTY TRANSPORTED BY
RAILROAD," AS USED IN THE PRESENT ACTS, MEANS THAT KIND OF ACTIVITY
WHICH IS DEFINED BY THE INTERSTATE COMMERCE ACT AS FORMING A PART OF
TRANSPORTATION SERVICE.  ON THE OTHER HAND, THE BOARD ARGUES THAT THE
STATUTORY DEFINITION OF "EMPLOYER" IS NOT SO RESTRICTED.  IT STRESSES
THE BROAD SWEEP OF THE STATUTORY LANGUAGE AND THE PURPOSE TO BRING
UNDER THE ACT AFFILIATES WHICH CARRY OUT PORTIONS OF THE RAILROAD'S
BUSINESS.  FN10 

WE DO NOT FIND IT NECESSARY TO RESOLVE THAT CONTROVERSY.  AT THE VERY
LEAST THE PHRASES IN QUESTION EMBRACE ACTIVITIES WHICH FORM A PART OF
TRANSPORTATION SERVICE WITHIN THE MEANING OF THE INTERSTATE COMMERCE
ACT.  DUQUESNE REGULARLY PERFORMS SERVICE OF THAT CHARACTER.  IT IS,
THEREFORE, AN "EMPLOYER" WITHIN THE MEANING OF THE PRESENT ACTS. 

WE HAVE NOTED THE LOADING AND UNLOADING SERVICES RENDERED BY
DUQUESNE.  THE DUTY OF UNLOADING CARLOAD FREIGHT ORDINARILY RESTS WITH
THE SHIPPER OR CONSIGNEE.  PENNSYLVANIA R. CO. V. KITTANNING CO., 253
U.S. 319, 323.  BUT IT IS A TRANSPORTATION SERVICE WITHIN THE MEANING
OF THE INTERSTATE COMMERCE ACT.  ATCHISON, T. & S.F.R. CO. V. UNITED
STATES, 295 U.S. 193, 200; BARRINGER & CO. V. UNITED STATES, 319 U.S.
1, 6.  ITS COST MAY BE INCLUDED IN THE LINE-HAUL TARIFFS OR SEPARATELY
FIXED OR ALLOWED AS AN ADDITIONAL CHARGE.  ADAMS V. MILLS, 286 U.S.
397, 410-415; LOADING AND UNLOADING CARLOAD FREIGHT, 101 I.C.C. 394;
BERG INDUSTRIAL ALCOHOL CO. V. READING CO., 142 I.C.C. 161, 163-164;
LIVESTOCK LOADED AND UNLOADED AT CHICAGO, 213 I.C.C. 330, 336-337.  SEE
HABERMAN V. PENNSYLVANIA R. CO., 234 I.C.C. 167, DEALING WITH LESS-THAN
CARLOAD LOTS. 

DUQUESNE'S ANSWER IS THAT THE SERVICE OF LOADING AND UNLOADING IS
DONE BY IT FOR ITS CUSTOMERS, THAT THESE SERVICES ARE RENDERED BEFORE
RAILROAD TRANSPORTATION HAS BEGUN OR AFTER IT HAS ENDED, THAT THEY ARE
NOT AND CANNOT BE A PART OF RAILROAD TRANSPORTATION SINCE THE TARIFF OF
THE PENNSYLVANIA FORBIDS IT FROM PERFORMING THE SERVICES.  DUQUESNE'S
CONCLUSION IS THAT UNDER SUCH CIRCUMSTANCES LOADING AND UNLOADING ARE
NOT AND CANNOT BE A PART OF RAILROAD TRANSPORTATION.  THE QUESTION,
HOWEVER, IS NOT WHETHER IN THESE CASES THE SERVICE OF LOADING AND
UNLOADING IS BEING RENDERED BY THE PENNSYLVANIA AND IS, THEREFORE, IN
FACT A PART OF ITS TRANSPORTATION SERVICE.  IT IS NOT WHETHER THE
AFFILIATE WOULD ITSELF BE SUBJECT TO THE INTERSTATE COMMERCE ACT.  IT
IS WHETHER A CARRIER'S AFFILIATE IS PERFORMING A SERVICE THAT COULD BE
PERFORMED BY THE CARRIER AND CHARGED FOR UNDER THE LINE-HAUL TARIFFS. 
IF IT IS SUCH A SERVICE, IT IS A TRANSPORTATION SERVICE WITHIN THE
MEANING OF THE PRESENT ACTS.  SENATOR WAGNER, WHO WAS IN CHARGE OF THE
RETIREMENT BILL IN THE SENATE, STATED THAT ITS COVERAGE INCLUDED "NOT
ONLY THOSE DIRECTLY IN THE RAILROAD BUSINESS BUT THOSE ASSOCIATED WITH
IT."  FN11  AND GEORGE M. HARRISON, ON WHOSE TESTIMONY DUQUESNE HEAVILY
RELIES, STATED THAT AFFILIATES OF CARRIERS WERE INCLUDED "WHEN THOSE
COMPANIES ARE ENGAGED IN THE BUSINESS OF TRANSPORTING PASSENGERS OR
PROPERTY FOR THE RAILROAD, OR OTHER SERVICE THAT IS A PART OF RAILWAY
TRANSPORTATION."  FN12  IN OTHER WORDS IF A SERVICE IS INVOLVED WHICH
THE RAILROAD COULD PERFORM AS A PART OF ITS TRANSPORTATION SERVICE, IT
IS WITHIN THE PRESENT ACTS.  IT THEN MAKES NO DIFFERENCE THAT IT IS
PERFORMED BY A CARRIER AFFILIATE RATHER THAN BY THE CARRIER ITSELF.  WE
THINK IT PLAIN THAT THE DEFINITIONS IN QUESTION INCLUDE AT THE VERY
LEAST THOSE ACTIVITIES WHICH WOULD BE TRANSPORTATION SERVICES WHEN
PERFORMED BY A RAILROAD BUT WHICH IT CHOOSES TO HAVE PERFORMED BY ITS
AFFILIATE. 

WE DO NOT DECIDE WHETHER SERVICES OTHER THAN LOADING AND UNLOADING
WHICH ARE PERFORMED BY DUQUESNE ARE IN THE SAME CATEGORY NOR WHETHER
THE "EMPLOYER" DEFINITIONS MAY BE GIVEN A BROADER SCOPE.  IT IS
SUFFICIENT FOR THE DISPOSITION OF THESE CASES THAT THE LOADING AND
UNLOADING SERVICES PERFORMED BY DUQUESNE ARE SERVICES PERFORMED "IN
CONNECTION WITH THE TRANSPORTATION OF ...  PROPERTY BY RAILROAD." 

THE JUDGMENT IN NO. 95 IS REVERSED.  THE JUDGMENT IN NO. 103 IS
AFFIRMED.  IT IS SO ORDERED. 

FN1  THE BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT
HANDLERS, EXPRESS AND STATION EMPLOYEES AND ITS PRESIDENT, G.M.
HARRISON, WERE ALLOWED TO INTERVENE AS DEFENDANTS IN NO. 95.  THE
BROTHERHOOD INTERVENED IN NO. 103. 

FN2  INCOMING SHIPMENTS ARE CONSIGNED TO THE OWNER CARE OF DUQUESNE,
THE ROUTE BEING DESIGNATED "PENN RR - FOR STGE IN TRANSIT."  OUTGOING
SHIPMENTS ARE CONSIGNED TO THE OWNER; THEY HAVE A TRANSIT RECORD NUMBER
AND ARE MARKED "ACCORDED TRANSIT PRIVILEGE AT EAST LIBERTY, PA."  THAT
IS, SUGAR IN CARLOAD LOTS TRANSPORTED BY THE PENNSYLVANIA TO CONSIGNEES
AT EAST LIBERTY MAY BE DELIVERED THERE TO THE CONSIGNEES AT THE LOCAL
RATES.  WHEN IT IS SUBSEQUENTLY SHIPPED OUT VIA THE SAME ROAD IT IS
ENTITLED TO BE CHARGED THE THROUGH RATE FROM THE FIRST POINT OF
SHIPMENT TO THE ULTIMATE DESTINATION. 

FN3  BETWEEN AUGUST 1937 AND MAY 1938.  THE BOARD FOUND THAT DUQUESNE
IS NOW AND HAS BEEN AT LEAST SINCE AUGUST 28, 1935, AN EMPLOYER WITHIN
THE MEANING OF THE ACTS. 

FN4  DUQUESNE ALSO HAS "SALVAGE FREIGHT" AGREEMENTS WITH THE
PENNSYLVANIA UNDER WHICH THE PENNSYLVANIA TURNS OVER TO IT, FOR SALE OR
OTHER DISPOSITION, "OVER" AND DAMAGED FREIGHT WHICH HAS BEEN REFUSED OR
UNCLAIMED BY THE OWNER.  FOR THIS SERVICE DUQUESNE RETAINS 10 PER CENT
OF THE GROSS PLUS CERTAIN COSTS AND REMITS THE BALANCE TO THE
PENNSYLVANIA. 

FN5  THE CORRESPONDING PART OF THE DEFINITION OF "CARRIER" CONTAINED
IN SEC. 1 FIRST OF THE RAILWAY LABOR ACT READS AS FOLLOWS:  "ANY
COMPANY WHICH IS DIRECTLY OR INDIRECTLY OWNED OR CONTROLLED BY OR UNDER
COMMON CONTROL WITH ANY CARRIER BY RAILROAD AND WHICH OPERATES ANY
EQUIPMENT OR FACILITIES OR PERFORMS ANY SERVICE (OTHER THAN TRUCKING
SERVICE) IN CONNECTION WITH THE TRANSPORTATION, RECEIPT, DELIVERY,
ELEVATION, TRANSFER IN TRANSIT, REFRIGERATION OR ICING, STORAGE, AND
HANDLING OF PROPERTY TRANSPORTED BY RAILROAD  ..."    FN6  HEARINGS, S.
COMMITTEE ON INTERSTATE COMMERCE ON S. 3266, 73D CONG., 2D SESS., PP.
10-11, 145.  AT THE LATTER POINT HE TESTIFIED, "I AM INCLINED TO
BELIEVE THAT FOR THE PRESENT IT WOULD BE WELL NOT TO GO BEYOND CARRIERS
AND THEIR SUBSIDIARIES ENGAGED IN TRANSPORTATION."  AND SEE HEARINGS,
H. COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 7650, 73D
CONG., 2D SESS., PP. 17, 18. 

FN7  SEC. 1(3)(A) OF THE INTERSTATE COMMERCE ACT INCLUDES IN THE
DEFINITION OF TRANSPORTATION "ALL SERVICES IN CONNECTION WITH THE
RECEIPT, DELIVERY, ELEVATION, AND TRANSFER IN TRANSIT, VENTILATION,
REFRIGERATION OR ICING, STORAGE, AND HANDLING OF PROPERTY
TRANSPORTED." 

FN8  SEE HEARINGS, H. COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
ON H.R. 6956, 75TH CONG., 1ST SESS., PP. 10-11, 82. 

FN9  SEE HEARINGS, SUPRA, NOTE 8, PP. 16, 17.  HE TESTIFIED AT THE
LATTER POINT THAT CARRIER AFFILIATES WERE INCLUDED "WHEN THOSE
COMPANIES ARE ENGAGED IN THE BUSINESS OF TRANSPORTING PASSENGERS OR
PROPERTY FOR THE RAILROAD, OR OTHER SERVICE THAT IS A PART OF RAILWAY
TRANSPORTATION."  AND SEE HEARINGS, S. COMMITTEE ON INTERSTATE COMMERCE
ON S. 2395, 75TH CONG., 1ST SESS., P. 11. 

FN10  SENATOR WAGNER, WHO WAS IN CHARGE OF THE RETIREMENT BILL IN THE
SENATE, STATED:  "THE COVERAGE IS EXTENDED EXPRESSLY TO RAILROAD LABOR
ORGANIZATIONS, RAILROAD ASSOCIATIONS, TRAFFIC ASSOCIATIONS, AND IS MADE
MORE CLEARLY APPLICABLE TO SUBSIDIARIES OF RAILROAD COMPANIES SUCH AS
REFRIGERATOR STORAGE AND OTHER FACILITIES.  IN OTHER WORDS, IT COVERS A
GREATER NUMBER OF EMPLOYEES, NOT ONLY THOSE DIRECTLY IN THE RAILROAD
BUSINESS BUT THOSE ASSOCIATED WITH IT, AND IN THAT REGARD IT IS MORE
LIBERAL THAN THE PRESENT ACT."  81 CONG. REC. 6223. 

IN S. REP. NO. 697, 75TH CONG., 1ST SESS., P. 7, IT IS STATED, AFTER
NOTING THAT CASUAL SERVICE AND OPERATION IS EXCLUDED, "IN ADDITION TO
TRUCKING SERVICE, IT IS INTENDED TO EXCLUDE EMPLOYEES OF A CONTRACTOR
WHO MAY, FOR EXAMPLE, BE OCCASIONALLY EMPLOYED BY A 'CARRIER' TO REPAIR
A DEPOT OR BUILD A BRIDGE.  CONTRACTORS, OTHER THAN THOSE WHICH PERFORM
CASUAL SERVICE, WOULD NOT BE EXCLUDED, IRRESPECTIVE OF WHETHER CONTROL
BE LEGAL OR DE FACTO.  DE-FACTO CONTROL MAY BE EXERCISED NOT ONLY BY
DIRECT OWNERSHIP OF STOCK, BUT BY MEANS OF AGREEMENTS, LICENSES, AND
OTHER DEVICES WHICH INSURE THAT THE OPERATION OF THE COMPANY IS
CONDUCTED IN THE INTERESTS OF THE CARRIER. 

"BY THESE CHANGES THERE ARE BROUGHT WITHIN THE SCOPE OF THE ACT
SUBSTANTIALLY ALL THOSE ORGANIZATIONS WHICH ARE INTIMATELY RELATED TO
THE TRANSPORTATION OF PASSENGERS OR PROPERTY BY RAILROAD IN THE UNITED
STATES." 

IT IS ALSO POINTED OUT THAT VARIOUS RAILROAD ASSOCIATIONS ARE
INCLUDED IN THE ACTS AND THAT THEIR EXPRESS INCLUSION WAS TO MAKE CLEAR
WHAT HAD BEEN PREVIOUSLY IMPLIED.  ID., PP. 6-7.  IT IS THEREFORE
ARGUED THAT SINCE SOME OF THOSE ASSOCIATIONS ARE NOT ENGAGED IN
RAILROAD TRANSPORTATION, CONGRESS DID NOT INTEND THE COVERAGE OF THE
ACTS TO BE RESTRICTED TO ORGANIZATIONS ENGAGED IN TRANSPORTATION EITHER
IN THE ORDINARY SENSE OR IN THE SENSE IN WHICH THE INTERSTATE COMMERCE
ACT USES THE TERM. 

FN11  SEE NOTE 10, SUPRA. 

FN12  SEE NOTE 9, SUPRA. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :








CHATWIN V. UNITED STATES, 326 U.S. 455 


ARGUED OCTOBER 10, 1945.  - DECIDED JANUARY 2, 1946.  - 146 F.2D 730,
REVERSED. 


1.  IN A PROSECUTION FOR VIOLATION OF THE FEDERAL KIDNAPING ACT, THE
STIPULATED FACTS AS TO THE CIRCUMSTANCES IN WHICH A 15-YEAR-OLD GIRL
UNDERTOOK AND CONTINUED A "CELESTIAL" MARRIAGE RELATIONSHIP WITH A
CULTIST, FAILED TO ESTABLISH THAT SHE HAD BEEN "HELD" WITHIN THE
MEANING OF THE WORDS "HELD FOR RANSOM OR REWARD OR OTHERWISE" AS USED
IN THE ACT, AND THEREFORE CONVICTIONS OF THE PETITIONERS UNDER THE ACT
CAN NOT BE SUSTAINED.  P. 459. 

(A)  FOR AUGHT THAT APPEARS FROM THE STIPULATED FACTS, THE ALLEGED
VICTIM WAS FREE TO LEAVE THE PETITIONERS WHEN AND IF SHE DESIRED;
THEREFORE THERE WAS NO PROOF OF UNLAWFUL RESTRAINT.  P. 460. 

(B)  THERE WAS NO PROOF THAT ANY OF THE PETITIONERS WILLFULLY
INTENDED, BY FORCE, FEAR, OR DECEPTION, TO HOLD THE ALLEGED VICTIM
AGAINST HER WILL.  PETITIONERS' BELIEFS ARE NOT SHOWN TO INVOLVE
UNLAWFUL RESTRAINT OF CELESTIAL WIVES.  P. 460. 

(C)  THERE WAS NO COMPETENT OR SUBSTANTIAL PROOF THAT THE GIRL WAS OF
SUCH AN AGE OR MENTALITY AS NECESSARILY PRECLUDED HER FROM
UNDERSTANDING THE DOCTRINE OF CELESTIAL MARRIAGE AND FROM EXERCISING
HER OWN FREE WILL; THEREFORE THE CONSENT OF THE PARENTS OR GUARDIAN IS
NOT A FACTOR IN THE CASE.  P. 461. 

(D)  IN THE ABSENCE OF EVIDENCE OF THE METHOD OF TESTING THE GIRL'S
MENTAL AGE, AND OF PROOF AS TO THE WEIGHT AND SIGNIFICANCE TO BE
ATTACHED TO THE PARTICULAR MENTAL AGE, THE STIPULATED FACT THAT, A YEAR
BEFORE THE ALLEGED INVEIGLEMENT AND DETENTION, THE GIRL WAS OF THE
MENTAL AGE OF 7 CAN NOT BE SAID NECESSARILY TO HAVE PRECLUDED HER FROM
JUDGING THE PRINCIPLES OF CELESTIAL MARRIAGE AND FROM ACTING IN
ACCORDANCE WITH HER BELIEFS IN THE MATTER.  THERE MUST BE COMPETENT
PROOF BEYOND A REASONABLE DOUBT OF A VICTIM'S MENTAL INCAPACITY IN
RELATION TO THE VERY ACTS IN QUESTION BEFORE THE CONSENT OF THE
VICTIM'S PARENTS OR GUARDIAN CAN BECOME A FACTOR.  P. 462. 

2.  INVOLUNTARINESS OF THE VICTIM'S SEIZURE AND DETENTION IS OF THE
ESSENCE OF THE CRIME OF KIDNAPING; AND, IF THAT ESSENTIAL ELEMENT IS
ABSENT, THE ACT OF PARTICIPATING IN ILLICIT RELATIONS OR CONTRIBUTING
TO THE DELINQUENCY OF A MINOR OR ENTERING INTO A CELESTIAL MARRIAGE,
FOLLOWED BY INTERSTATE TRANSPORTATION, DOES NOT VIOLATE THE FEDERAL
KIDNAPING ACT.  P. 464. 

3.  THE PURPOSE OF THE FEDERAL KIDNAPING ACT WAS TO OUTLAW INTERSTATE
KIDNAPINGS RATHER THAN GENERAL TRANSGRESSIONS OF MORALITY INVOLVING THE
CROSSING OF STATE LINES; AND THE BROAD LANGUAGE OF THE ACT MUST BE
INTERPRETED AND APPLIED IN THE LIGHT OF THAT PURPOSE.  P. 464. 

CHATWIN V. UNITED STATES. 

NO. 31.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT* . 

*TOGETHER WITH NO. 32, ZITTING V. UNITED STATES, AND NO. 33,
CHRISTENSEN V. UNITED STATES, ALSO ON CERTIORARI TO THE CIRCUIT COURT
OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 324 U.S. 835, TO REVIEW THE AFFIRMANCE OF CONVICTIONS, 56
F.SUPP.  890, OF VIOLATIONS OF THE FEDERAL KIDNAPING ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL KIDNAPING ACT  FN1  PUNISHES ANY ONE WHO KNOWINGLY
TRANSPORTS OR AIDS IN TRANSPORTING IN INTERSTATE OR FOREIGN COMMERCE
"ANY PERSON WHO SHALL HAVE BEEN UNLAWFULLY SEIZED, CONFINED, INVEIGLED,
DECOYED, KIDNAPED, ABDUCTED, OR CARRIED AWAY BY ANY MEANS WHATSOEVER
AND HELD FOR RANSOM OR REWARD OR OTHERWISE, EXCEPT, IN THE CASE OF A
MINOR, BY A PARENT THEREOF."  THE SOLE ISSUE CONFRONTING US IN THESE
CASES IS WHETHER THE STIPULATED FACTS SUPPORT THE CONVICTIONS OF THE
THREE PETITIONERS UNDER THIS ACT, THE INDICTMENT HAVING CHARGED THAT
THEY UNLAWFULLY INVEIGLED, DECOYED AND CARRIED AWAY A MINOR CHILD OF
THE AGE OF 15, HELD HER FOR A STATED PERIOD, AND TRANSPORTED HER FROM
UTAH TO ARIZONA WITH KNOWLEDGE THAT SHE HAD BEEN SO INVEIGLED AND
HELD.  WE ARE NOT CALLED UPON TO DETERMINE OR CHARACTERIZE THE MORALITY
OF THEIR ACTIONS.  NOR ARE WE CONCERNED HERE WITH THEIR LIABILITY UNDER
ANY OTHER STATUTE, FEDERAL OR STATE. 

PETITIONERS ARE MEMBERS OF THE FUNDAMENTALIST CULT OF THE MORMON
FAITH, A CULT THAT SANCTIONS PLURAL OR "CELESTIAL" MARRIAGES.  IN
AUGUST, 1940, PETITIONER CHATWIN, WHO WAS THEN A 68-YEAR OLD WIDOWER,
EMPLOYED ONE DOROTHY WYLER AS A HOUSEKEEPER IN HIS HOME IN SANTAQUIN,
UTAH.  THIS GIRL WAS NEARLY 15 YEARS OLD AT THIS TIME ALTHOUGH THE
STIPULATION INDICATES THAT SHE HAD ONLY A MENTAL AGE OF 7.  FN2  HER
EMPLOYMENT BY CHATWIN WAS APPROVED BY HER PARENTS.  WHILE RESIDING AT
CHATWIN'S HOME, THE GIRL WAS CONTINUALLY TAUGHT BY CHATWIN AND ONE LULU
COOK, WHO ALSO RESIDED THERE, THAT PLURAL MARRIAGE WAS ESSENTIAL TO HER
SALVATION.  CHATWIN ALSO TOLD HER THAT IT WAS HER GRANDMOTHER'S DESIRE
THAT HE SHOULD TAKE HER IN CELESTIAL MARRIAGE AND THAT SUCH A MARRIAGE
WAS IN CONFORMITY WITH THE TRUE PRINCIPLES OF THE ORIGINAL MORMON
CHURCH.  AS A RESULT OF THESE TEACHINGS, THE GIRL WAS CONVERTED TO THE
PRINCIPLE OF CELESTIAL MARRIAGE AND ENTERED INTO A CULT MARRIAGE WITH
CHATWIN ON DECEMBER 19, 1940.  THEREAFTER SHE BECAME PREGNANT, WHICH
FACT WAS DISCOVERED BY HER PARENTS ON JULY 24, 1941.  THE PARENTS THEN
INFORMED THE JUVENILE AUTHORITIES OF THE STATE OF UTAH OF THE SITUATION
AND THEY TOOK THE GIRL INTO CUSTODY AS A DELINQUENT ON AUGUST 4, 1941,
MAKING HER A WARD OF THE JUVENILE COURT. 

ON AUGUST 10, 1941, THE GIRL ACCOMPANIED A JUVENILE PROBATION OFFICER
TO A MOTION PICTURE SHOW AT PROVO, UTAH.  THE OFFICER LEFT THE GIRL AT
THE SHOW AND RETURNED LATER TO CALL FOR HER.  THE GIRL ASKED TO BE
ALLOWED TO STAY ON FOR A SHORT TIME AND THE OFFICER CONSENTED. 
THEREAFTER, AND PRIOR TO THE SECOND RETURN OF THE OFFICER, THE GIRL
"LEFT THE PICTURE SHOW AND WENT OUT ONTO THE STREET IN PROVO."  THERE
SHE MET TWO MARRIED DAUGHTERS OF CHATWIN WHO GAVE HER SUFFICIENT MONEY
TO GO FROM PROVO TO SALT LAKE CITY.  SHORTLY AFTER ARRIVING THERE SHE
WAS TAKEN TO THE HOME OF PETITIONERS ZITTING AND CHRISTENSEN.  THEY,
TOGETHER WITH CHATWIN, CONVINCED HER THAT SHE SHOULD ABIDE, AS THEY PUT
IT, "BY THE LAW OF GOD RATHER THAN THE LAW OF MAN" AND THAT SHE WAS
PERFECTLY JUSTIFIED IN RUNNING AWAY FROM THE JUVENILE COURT IN ORDER TO
LIVE WITH CHATWIN.  THEY FURTHER CONVINCED HER THAT SHE SHOULD GO WITH
THEM TO MEXICO TO BE MARRIED LEGALLY TO CHATWIN AND THEN REMAIN IN
HIDING UNTIL SHE HAD REACHED HER MAJORITY UNDER UTAH LAW.  THEREAFTER,
ON OCTOBER 6, 1941, THE THREE PETITIONERS TRANSPORTED THE GIRL IN
ZITTING'S AUTOMOBILE FROM SALT LAKE CITY TO JUAREZ, MEXICO, WHERE SHE
WENT THROUGH A CIVIL MARRIAGE CEREMONY WITH CHATWIN ON OCTOBER 14.  SHE
WAS THEN BROUGHT BACK TO UTAH AND THENCE TO SHORT CREEK, ARIZONA. 
THERE SHE LIVED IN HIDING WITH CHATWIN UNDER ASSUMED NAMES UNTIL
DISCOVERED BY FEDERAL AUTHORITIES OVER TWO YEARS LATER, DECEMBER 9,
1943.  WHILE IN SHORT CREEK SHE GAVE BIRTH TO TWO CHILDREN BY CHATWIN. 
THE TRANSPORTATION OF THE GIRL FROM PROVO TO SALT LAKE CITY, THENCE TO
JUAREZ, MEXICO, AND FINALLY TO SHORT CREEK WAS WITHOUT THE CONSENT AND
AGAINST THE WISHES OF HER PARENTS AND WITHOUT AUTHORITY FROM THE
JUVENILE COURT OFFICIALS.  FN3 

HAVING WAIVED JURY TRIALS, THE THREE PETITIONERS WERE FOUND GUILTY AS
CHARGED AND WERE GIVEN JAIL SENTENCES.  56 F.SUPP.  890.  THE COURT
BELOW AFFIRMED THE CONVICTIONS.  146 F.2D 730.  WE GRANTED CERTIORARI,
324 U.S. 835, BECAUSE OF OUR DOUBTS AS TO THE CORRECTNESS OF THE
JUDGMENT THAT THE PETITIONERS WERE GUILTY UNDER THE FEDERAL KIDNAPING
ACT ON THE BASIS OF THE FOREGOING FACTS. 

THE ACT BY ITS OWN TERMS CONTEMPLATES THAT THE KIDNAPED VICTIM SHALL
HAVE BEEN (1) "UNLAWFULLY SEIZED, CONFINED, INVEIGLED, DECOYED,
KIDNAPED, ABDUCTED, OR CARRIED AWAY BY ANY MEANS WHATSOEVER" AND (2)
"HELD FOR RANSOM OR REWARD OR OTHERWISE."  THE GOVERNMENT CONTENDS THAT
BOTH ELEMENTS APPEAR FROM THE STIPULATED FACTS IN THIS CASE.  THE
PETITIONERS, IT IS ARGUED, UNLAWFULLY "INVEIGLED" OR "DECOYED" THE GIRL
AWAY FROM THE CUSTODY OF HER PARENTS AND THE JUVENILE COURT
AUTHORITIES, THE GIRL BEING "INCAPABLE OF UNDERSTANDING THE FULL
SIGNIFICANCE OF PETITIONERS' IMPORTUNITIES" BECAUSE OF HER TENDER YEARS
AND EXTREMELY LOW MENTALITY.  IT IS CLAIMED, MOREOVER, THAT THE GIRL
WAS "HELD" DURING THE TWO-MONTH PERIOD FROM AUGUST 10 TO OCTOBER 6,
1941, PRIOR TO THE LEGAL MARRIAGE, FOR THE PURPOSE OF ENABLING CHATWIN
TO COHABIT WITH HER AND THAT THIS PURPOSE, BEING OF "BENEFIT TO THE
TRANSGRESSOR," IS WITHIN THE STATUTORY TERM "OR OTHERWISE" AS DEFINED
IN GOOCH V. UNITED STATES, 297 U.S. 124, 128. 

WE ARE UNABLE TO APPROVE THE GOVERNMENT'S CONTENTION.  THE AGREED
STATEMENT THAT THE GIRL "LEFT THE PICTURE SHOW AND WENT OUT ONTO THE
STREET IN PROVO" WITHOUT ANY APPARENT MOTIVATING ACTIONS BY THE
PETITIONERS CASTS SERIOUS DOUBTS ON THE CLAIM THAT THEY "INVEIGLED" OR
"DECOYED" HER AWAY FROM THE CUSTODY OF THE JUVENILE COURT AUTHORITIES. 
BUT WE DO NOT PAUSE TO PURSUE THIS MATTER FOR IT IS OBVIOUS THAT THERE
HAS BEEN A COMPLETE LACK OF COMPETENT PROOF THAT THE GIRL WAS "HELD FOR
RANSOM OR REWARD OR OTHERWISE" AS THAT TERM IS USED IN THE FEDERAL
KIDNAPING ACT. 

THE ACT OF HOLDING A KIDNAPED PERSON FOR A PROSCRIBED PURPOSE
NECESSARILY IMPLIES AN UNLAWFUL PHYSICAL OR MENTAL RESTRAINT FOR AN
APPRECIABLE PERIOD AGAINST THE PERSON'S WILL AND WITH A WILLFUL INTENT
SO TO CONFINE THE VICTIM.  IF THE VICTIM IS OF SUCH AN AGE OR MENTAL
STATE AS TO BE INCAPABLE OF HAVING A RECOGNIZABLE WILL, THE CONFINEMENT
THEN MUST BE AGAINST THE WILL OF THE PARENTS OR LEGAL GUARDIAN OF THE
VICTIM.  IN THIS INSTANCE, HOWEVER, THE STIPULATED FACTS FAIL TO REVEAL
THE PRESENCE OF ANY OF THESE ESSENTIAL ELEMENTS. 

(1)  THERE IS NO PROOF THAT CHATWIN OR ANY OF THE OTHER PETITIONERS
IMPOSED AT ANY TIME AN UNLAWFUL PHYSICAL OR MENTAL RESTRAINT UPON THE
MOVEMENTS OF THE GIRL.  NOTHING INDICATES THAT SHE WAS DEPRIVED OF HER
LIBERTY, COMPELLED TO REMAIN WHERE SHE DID NOT WISH TO REMAIN, OR
COMPELLED TO GO WHERE SHE DID NOT WISH TO GO.  FOR AUGHT THAT APPEARS
FROM THE STIPULATION, SHE WAS PERFECTLY FREE TO LEAVE THE PETITIONERS
WHEN AND IF SHE SO DESIRED.  IN OTHER WORDS, THE GOVERNMENT HAS FAILED
TO PROVE AN ACT OF UNLAWFUL RESTRAINT. 

(2)  THERE IS NO PROOF THAT CHATWIN OR ANY OF THE OTHER PETITIONERS
WILLFULLY INTENDED THROUGH FORCE, FEAR OR DECEPTION TO CONFINE THE GIRL
AGAINST HER DESIRES.  WHILE BONA FIDE RELIGIOUS BELIEFS CANNOT ABSOLVE
ONE FROM LIABILITY UNDER THE FEDERAL KIDNAPING ACT, PETITIONERS'
BELIEFS ARE NOT SHOWN TO NECESSITATE UNLAWFUL RESTRAINTS OF CELESTIAL
WIVES AGAINST THEIR WILLS.  NOR DOES THE FACT THAT CHATWIN INTENDED TO
COHABIT WITH THE GIRL AND TO LIVE WITH HER AS HUSBAND AND WIFE SERVE AS
A SUBSTITUTE FOR AN INTENT TO RESTRAIN HER MOVEMENTS CONTRARY TO HER
WISHES, AS REQUIRED BY THE ACT. 

(3)  FINALLY, THERE IS NO COMPETENT OR SUBSTANTIAL PROOF THAT THE
GIRL WAS OF SUCH AN AGE OR MENTALITY AS NECESSARILY TO PRECLUDE HER
FROM UNDERSTANDING THE DOCTRINE OF CELESTIAL MARRIAGE AND FROM
EXERCISING HER OWN FREE WILL, THEREBY MAKING THE WILL OF HER PARENTS OR
THE JUVENILE COURT AUTHORITIES THE IMPORTANT FACTOR.  AT THE TIME OF
THE ALLEGED INVEIGLEMENT IN AUGUST, 1941, SHE WAS 15 YEARS AND 8 MONTHS
OF AGE AND THE ALLEGED HOLDING OCCURRED THEREAFTER.  THERE IS NO LEGAL
WARRANT FOR CONCLUDING THAT SUCH AN AGE IS IPSO FACTO PROOF OF MENTAL
INCAPACITY IN VIEW OF THE GENERAL RULE THAT INCAPACITY IS TO BE
PRESUMED ONLY WHERE A CHILD IS UNDER THE AGE OF 14.  9 WIGMORE ON
EVIDENCE (3RD ED.)  SEC.  2514.  FN4  NOR IS THERE ANY STATUTORY
WARRANT IN THIS INSTANCE FOR HOLDING THAT THE CONSENT OF A CHILD OF
THIS AGE IS IMMATERIAL.  CF. IN RE MORRISSEY, 137 U.S. 157; UNITED
STATES V. WILLIAMS, 302 U.S. 46; STATE V. RHOADES, 29 WASH. 61, 69 P.
389.  IN UTAH, PARENTHETICALLY, ANY ALLEGED VICTIM OVER THE AGE OF 12
IS CONSIDERED SUFFICIENTLY COMPETENT SO THAT HIS CONSENT MAY BE USED BY
AN ALLEGED KIDNAPER IN DEFENSE TO A CHARGE UNDER THE STATE KIDNAPING
STATUTE.  UTAH CODE ANN. (1943) SEC. 103-33-2.  AND A PERSON OVER THE
AGE OF 14 IN UTAH IS STATED TO BE CAPABLE OF COMMITTING A CRIME, THE
PRESUMPTION OF INCAPACITY APPLYING ONLY TO THOSE YOUNGER.  SEC. 103-1
40.  SADLEIR V. YOUNG, 97 UTAH 291, 85 P.2D 810; STATE V. TERRELL, 55
UTAH 314, 186 P. 108. 

GREAT STRESS IS PLACED BY THE GOVERNMENT, HOWEVER, UPON THE ADMITTED
FACT THAT THE GIRL POSSESSED A MENTAL AGE OF 7 IN 1940, ONE YEAR BEFORE
THE ALLEGED INVEIGLEMENT AND HOLDING.  IT IS UNNECESSARY HERE TO
DETERMINE THE VALIDITY, THE RELIABILITY OR THE PROPER USE OF MENTAL
TESTS, PARTICULARLY IN RELATION TO CRIMINAL TRIALS.  IT SUFFICES TO
NOTE THAT THE METHOD OF TESTING THE GIRL'S MENTAL AGE IS NOT REVEALED
AND THAT THERE IS A COMPLETE ABSENCE OF PROOF IN THE RECORD AS TO THE
PROPER WEIGHT AND SIGNIFICANCE TO BE ATTACHED TO THIS PARTICULAR MENTAL
AGE.  NOTHING APPEARS SAVE A BARE MATHEMATICAL APPROXIMATION
UNRESTRICTED IN TERMS TO THE NARROW LEGAL ISSUE IN THIS CASE.  UNDER
SUCH CIRCUMSTANCES A STIPULATED MENTAL AGE OF 7 CANNOT BE SAID
NECESSARILY TO PRECLUDE ONE FROM UNDERSTANDING AND JUDGING THE
PRINCIPLES OF CELESTIAL MARRIAGE AND FROM ACTING IN ACCORDANCE WITH
ONE'S BELIEFS IN THE MATTER.  THE SERIOUS CRIME OF KIDNAPING SHOULD
TURN ON SOMETHING MORE SUBSTANTIAL THAN SUCH AN UNEXPLAINED
MATHEMATICAL APPROXIMATION OF THE VICTIM'S MENTAL AGE.  THERE MUST BE
COMPETENT PROOF BEYOND A REASONABLE DOUBT OF A VICTIM'S MENTAL
INCAPACITY IN RELATION TO THE VERY ACTS IN QUESTION BEFORE CRIMINAL
LIABILITY CAN BE SANCTIONED IN A CASE OF THIS NATURE.  FN5 

THE STIPULATED FACTS OF THIS CASE REVEAL A SITUATION QUITE DIFFERENT
FROM THE GENERAL PROBLEM TO WHICH THE FRAMERS OF THE FEDERAL KIDNAPING
ACT ADDRESSED THEMSELVES.  THIS STATUTE WAS DRAWN IN 1932 AGAINST A
BACKGROUND OF ORGANIZED VIOLENCE.  75 CONG. REC. 13282-13304. 
KIDNAPING BY THAT TIME HAD BECOME AN EPIDEMIC IN THE UNITED STATES. 
RUTHLESS CRIMINAL BANDS UTILIZED EVERY KNOWN LEGAL AND SCIENTIFIC MEANS
TO ACHIEVE THEIR AIMS AND TO PROTECT THEMSELVES.  VICTIMS WERE SELECTED
FROM AMONG THE WEALTHY WITH GREAT CARE AND STUDY.  DETAILS OF THE
SEIZURES AND DETENTIONS WERE FULLY AND METICULOUSLY WORKED OUT IN
ADVANCE.  RANSOM WAS THE USUAL MOTIVE.  "LAW ENFORCEMENT AUTHORITIES,
LACKING COORDINATION, WITH NO UNIFORM SYSTEM OF INTERCOMMUNICATION AND
RESTRICTED IN AUTHORITY TO ACTIVITIES IN THEIR OWN JURISDICTION, FOUND
THEMSELVES LAUGHED AT BY CRIMINALS BOUND BY NO SUCH INHIBITIONS OR
RESTRICTIONS  ...  THE PROCEDURE WAS SIMPLE - A MAN WOULD BE KIDNAPPED
IN ONE STATE AND WHISKED INTO ANOTHER, AND STILL ANOTHER, HIS CAPTORS
KNOWING FULL WELL THAT THE POLICE IN THE JURISDICTION WHERE THE CRIME
WAS COMMITTED HAD NO AUTHORITY AS FAR AS THE STATE OF CONFINEMENT AND
CONCEALMENT WAS CONCERNED."  FISHER AND MCGUIRE, "KIDNAPPING AND THE SO
CALLED LINDBERGH LAW," 12 NEW YORK U.L.Q. REV. 646, 653.  SEE ALSO
HEARING BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY (72D CONG., 1ST
SESS.) ON H.R. 5657, SERIAL 4; FINLEY, "THE LINDBERGH LAW," 28
GEORGETOWN L.J. 908. 

IT WAS TO ASSIST THE STATES IN STAMPING OUT THIS GROWING AND SINISTER
MENACE OF KIDNAPING THAT THE FEDERAL KIDNAPING ACT WAS DESIGNED.  ITS
PROPONENTS RECOGNIZED THAT WHERE VICTIMS WERE TRANSPORTED ACROSS STATE
LINES ONLY THE FEDERAL GOVERNMENT HAD THE POWER TO DISREGARD SUCH
BARRIERS IN PURSUING THE CAPTORS.  H. REP. NO. 1493(72D CONG., 1ST
SESS.); S. REP. NO. 765(72D CONG., 1ST SESS.).  GIVEN ADDED IMPETUS BY
THE EMOTION WHICH GRIPPED THE NATION DUE TO THE FAMOUS LINDBERGH
KIDNAPING CASE, THE FEDERAL STATUTE WAS SPEEDILY ADOPTED.  SEE 75 CONG.
REC. 5075-5076, 13282-13304.  COMPREHENSIVE LANGUAGE WAS USED TO COVER
EVERY POSSIBLE VARIETY OF KIDNAPING FOLLOWED BY INTERSTATE
TRANSPORTATION.  ARMED WITH THIS LEGISLATIVE MANDATE, FEDERAL OFFICIALS
HAVE ACHIEVED A HIGH AND EFFECTIVE CONTROL OF THIS TYPE OF CRIME. 
BUT THE BROADNESS OF THE STATUTORY LANGUAGE DOES NOT PERMIT US TO TEAR
THE WORDS OUT OF THEIR CONTEXT, USING THE MAGIC OF LEXIGRAPHY TO APPLY
THEM TO UNATTRACTIVE OR IMMORAL SITUATIONS LACKING THE INVOLUNTARINESS
OF SEIZURE AND DETENTION WHICH IS THE VERY ESSENCE OF THE CRIME OF
KIDNAPING.  THUS, IF THIS ESSENTIAL ELEMENT IS MISSING, THE ACT OF
PARTICIPATING IN ILLICIT RELATIONS OR CONTRIBUTING TO THE DELINQUENCY
OF A MINOR OR ENTERING INTO A CELESTIAL MARRIAGE, FOLLOWED BY
INTERSTATE TRANSPORTATION, DOES NOT CONSTITUTE A CRIME UNDER THE
FEDERAL KIDNAPING ACT.  NO UNUSUAL OR NOTORIOUS SITUATION RELATING TO
THE INABILITY OF STATE AUTHORITIES TO CAPTURE AND PUNISH PARTICIPANTS
IN SUCH ACTIVITIES EVIDENCED ITSELF AT THE TIME THIS ACT WAS CREATED;
NO AUTHORITATIVE SPOKESMAN INDICATED THAT THE ACT WAS TO BE USED TO
ASSIST THE STATES IN THESE MATTERS, HOWEVER UNLAWFUL AND OBNOXIOUS THE
CHARACTER OF THESE ACTIVITIES MIGHT OTHERWISE BE.  NOR IS THERE ANY
INDICATION THAT CONGRESS DESIRED OR CONTEMPLATED THAT THE PUNISHMENT OF
DEATH OR LONG IMPRISONMENT, AS AUTHORIZED BY THE ACT, MIGHT BE APPLIED
TO THOSE GUILTY OF IMMORALITIES LACKING THE CHARACTERISTICS OF TRUE
KIDNAPINGS.  IN SHORT, THE PURPOSE OF THE ACT WAS TO OUTLAW INTERSTATE
KIDNAPINGS RATHER THAN GENERAL TRANSGRESSIONS OF MORALITY INVOLVING THE
CROSSING OF STATE LINES.  AND THE BROAD LANGUAGE OF THE STATUTE MUST BE
INTERPRETED AND APPLIED WITH THAT PLAIN FACT IN MIND.  SEE UNITED
STATES V. AMERICAN TRUCKING ASSOCIATIONS, 310 U.S. 534, 543-544. 

WERE WE TO SANCTION A CARELESS CONCEPT OF THE CRIME OF KIDNAPING OR
WERE WE TO DISREGARD THE BACKGROUND AND SETTING OF THE ACT THE
BOUNDARIES OF POTENTIAL LIABILITY WOULD BE LOST IN INFINITY.  A LOOSE
CONSTRUCTION OF THE STATUTORY LANGUAGE CONCEIVABLY COULD LEAD TO THE
PUNISHMENT OF ANYONE WHO INDUCED ANOTHER TO LEAVE HIS SURROUNDINGS AND
DO SOME INNOCENT OR ILLEGAL ACT OF BENEFIT TO THE FORMER, STATE LINES
SUBSEQUENTLY BEING TRAVERSED.  THE ABSURDITY OF SUCH A RESULT, WITH ITS
ATTENDANT LIKELIHOOD OF UNFAIR PUNISHMENT AND BLACKMAIL, IS SUFFICIENT
BY ITSELF TO FORECLOSE THAT CONSTRUCTION. 

THE JUDGMENT OF THE COURT BELOW AFFIRMING THE CONVICTIONS OF THE
PETITIONERS MUST THEREFORE BE REVERSED. 

FN1  47 STAT. 326; 48 STAT. 781; 18 U.S.C. SEC. 408A. 

FN2  AT THE TIME OF HER EMPLOYMENT BY CHATWIN, THE GIRL'S PHYSICAL
AGE WAS 14 YEARS AND 8 MONTHS; HER MENTAL AGE WAS 7 YEARS AND 2 MONTHS;
HER INTELLIGENCE QUOTIENT WAS 67.  AT THE TIME OF THE STIPULATION IN
MARCH, 1944, SHE WAS A "HIGH GRADE MORON" WITH A MENTAL AGE OF 9 YEARS
AND 8 MONTHS AND AN INTELLIGENCE QUOTIENT OF 64. 

FN3  IN CHATWIN V. TERRY, 107 UTAH 340, 153 P.2D 941(1944), THE UTAH
SUPREME COURT HELD THAT THE JUVENILE COURT HAD AUTHORITY TO HOLD THE
GIRL IN CUSTODY UNTIL SHE REACHED THE AGE OF 21, DESPITE HER LEGAL
MARRIAGE TO CHATWIN. 

FN4  SEE COMMONWEALTH V. NICKERSON, 87 MASS. 518(CHILD OF 9 HELD
INCOMPETENT TO ASSENT TO FORCIBLE TRANSFER OF CUSTODY); STATE V.
FARRAR, 41 N.H. 53(CHILD OF 4 HELD INCAPABLE OF CONSENTING TO FORCIBLE
SEIZURE AND ABDUCTION); HERRING V. BOYLE, 1 C.M. & R. 377(CHILD OF 10
COULD NOT RECOVER FOR FALSE IMPRISONMENT WITHOUT PROOF THAT HE KNEW OF
ALLEGED RESTRAINT UPON HIM); IN RE LLOYD, 3 MAN.  & GR. 547(CHILD
BETWEEN 11 AND 12 HELD COMPETENT TO DECIDE WHETHER TO LIVE WITH FATHER
OR MOTHER). 

FN5  SEE STATE V. KELSIE, 93 VT. 450, 108 A. 391; STATE V. SCHILLING,
95 N.J.L. 145, 112 A. 400; PEOPLE V. OXNAM, 170 CAL. 211, 149 P. 165;
STATE V. SCHAFER, 156 WASH. 240, 286 P. 833; COMMONWEALTH V. STEWART,
255 MASS. 9, 151 N.E. 74; COMMONWEALTH V. TRIPPI, 268 MASS. 227, 167
N.E. 354; WOODBRIDGE, "PHYSICAL AND MENTAL INFANCY IN THE CRIMINAL
LAW," 87 U. OF PA. L. REV. 426. 

MR. JUSTICE BURTON CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :
























COMMISSIONER V. FLOWERS, 326 U.S. 465 


NO. 145.  ARGUED DECEMBER 11, 12, 1945.  - DECIDED JANUARY 2, 1946.  -
148 F.2D 163, REVERSED. 


1.  UNDER SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE, AUTHORIZING
IN COMPUTING INCOME TAX THE DEDUCTION OF TRAVELING EXPENSES INCURRED IN
THE PURSUIT OF A TRADE OR BUSINESS, AS INTERPRETED BY SEC. 19.23(A)-2
OF TREASURY REGULATIONS 103, TRAVELING EXPENSES OF AN EMPLOYEE
RESULTING FROM THE FACT THAT HE CHOOSES FOR REASONS OF PERSONAL
CONVENIENCE TO MAINTAIN A RESIDENCE IN A CITY OTHER THAN THAT IN WHICH
HIS POST OF DUTY IS LOCATED ARE NOT DEDUCTIBLE AS TRAVEL EXPENSES IN
PURSUIT OF BUSINESS.  P. 473. 

2.  TRAVELING EXPENSES IN PURSUIT OF BUSINESS, WITHIN THE MEANING OF
SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE, CAN ARISE ONLY WHEN THE
EMPLOYER'S BUSINESS FORCES THE TAXPAYER TO TRAVEL AND LIVE TEMPORARILY
AT SOME PLACE OTHER THAN WHERE HIS BUSINESS HEADQUARTERS ARE LOCATED,
THEREBY ADVANCING THE INTERESTS OF THE EMPLOYER.  THE EXIGENCIES OF
BUSINESS RATHER THAN THE PERSONAL CONVENIENCES AND NECESSITIES OF THE
TRAVELER MUST BE THE MOTIVATING FACTOR.  P. 474. 

3.  THE INTERPRETATION GIVEN BY SEC. 19.23(A)-2 OF TREASURY
REGULATIONS 103 TO THE PROVISION OF SEC. 23(A)(1)(A) OF THE INTERNAL
REVENUE CODE, WHICH IS PRECISELY THE SAME AS THAT GIVEN TO IDENTICAL
PROVISIONS OF PRIOR AND SUBSEQUENT REVENUE ACTS, MUST BE DEEMED TO HAVE
LEGISLATIVE APPROVAL AND TO HAVE THE FORCE OF LAW.  P. 469. 

4.  WHETHER PARTICULAR EXPENSES ARE DEDUCTIBLE AS TRAVELING EXPENSES
UNDER SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE, AS INTERPRETED BY
SEC. 19.23(A)-2 OF TREASURY REGULATIONS 103, IS IN MOST INSTANCES
PURELY A QUESTION OF FACT, UPON WHICH THE TAX COURT'S INFERENCES AND
CONCLUSIONS SHOULD NOT BE DISTURBED BY AN APPELLATE COURT.  P. 470. 

COMMISSIONER OF INTERNAL REVENUE V. FLOWERS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 701, TO REVIEW THE REVERSAL OF A DECISION OF THE
TAX COURT WHICH SUSTAINED THE COMMISSIONER'S DISALLOWANCE OF CERTAIN
DEDUCTIONS IN COMPUTING THE TAXPAYER'S INCOME TAX. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A PROBLEM AS TO THE MEANING AND APPLICATION OF THE
PROVISION OF SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE FN1
ALLOWING A DEDUCTION FOR INCOME TAX PURPOSES OF "TRAVELING EXPENSES
(INCLUDING THE ENTIRE AMOUNT EXPENDED FOR MEALS AND LODGING) WHILE AWAY
FROM HOME IN THE PURSUIT OF A TRADE OR BUSINESS." 

THE TAXPAYER, A LAWYER, HAS RESIDED WITH HIS FAMILY IN JACKSON,
MISSISSIPPI, SINCE 1903.  THERE HE HAS PAID TAXES, VOTED, SCHOOLED HIS
CHILDREN AND ESTABLISHED SOCIAL AND RELIGIOUS CONNECTIONS.  HE BUILT A
HOUSE IN JACKSON NEARLY THIRTY YEARS AGO AND AT ALL TIMES HAS
MAINTAINED IT FOR HIMSELF AND HIS FAMILY.  HE HAS BEEN CONNECTED WITH
SEVERAL LAW FIRMS IN JACKSON, ONE OF WHICH HE FORMED AND WHICH HAS
BORNE HIS NAME SINCE 1922. 

IN 1906 THE TAXPAYER BEGAN TO REPRESENT THE PREDECESSOR OF THE GULF,
MOBILE & OHIO RAILROAD, HIS PRESENT EMPLOYER.  HE ACTED AS TRIAL
COUNSEL FOR THE RAILROAD THROUGHOUT MISSISSIPPI.  FROM 1918 UNTIL 1927
HE ACTED AS SPECIAL COUNSEL FOR THE RAILROAD IN MISSISSIPPI.  HE WAS
ELECTED GENERAL SOLICITOR IN 1927 AND CONTINUED TO BE ELECTED TO THAT
POSITION EACH YEAR UNTIL 1930, WHEN HE WAS ELECTED GENERAL COUNSEL. 
THEREAFTER HE WAS ANNUALLY ELECTED GENERAL COUNSEL UNTIL SEPTEMBER,
1940, WHEN THE PROPERTIES OF THE PREDECESSOR COMPANY AND ANOTHER
RAILROAD WERE MERGED AND HE WAS ELECTED VICE PRESIDENT AND GENERAL
COUNSEL OF THE NEWLY FORMED GULF, MOBILE & OHIO RAILROAD. 

THE MAIN OFFICE OF THE GULF, MOBILE & OHIO RAILROAD IS IN MOBILE,
ALABAMA, AS WAS ALSO THE MAIN OFFICE OF ITS PREDECESSOR.  WHEN OFFERED
THE POSITION OF GENERAL SOLICITOR IN 1927, THE TAXPAYER WAS UNWILLING
TO ACCEPT IT IF IT REQUIRED HIM TO MOVE FROM JACKSON TO MOBILE.  HE HAD
ESTABLISHED HIMSELF IN JACKSON BOTH PROFESSIONALLY AND PERSONALLY AND
WAS NOT DESIROUS OF MOVING AWAY.  AS A RESULT, AN ARRANGEMENT WAS MADE
BETWEEN HIM AND THE RAILROAD WHEREBY HE COULD ACCEPT THE POSITION AND
CONTINUE TO RESIDE IN JACKSON ON CONDITION THAT HE PAY HIS TRAVELING
EXPENSES BETWEEN MOBILE AND JACKSON AND PAY HIS LIVING EXPENSES IN BOTH
PLACES.  THIS ARRANGEMENT PERMITTED THE TAXPAYER TO DETERMINE FOR
HIMSELF THE AMOUNT OF TIME HE WOULD SPEND IN EACH OF THE TWO CITIES AND
WAS IN EFFECT DURING 1939 AND 1940, THE TAXABLE YEARS IN QUESTION. 

THE RAILROAD COMPANY PROVIDED AN OFFICE FOR THE TAXPAYER IN MOBILE
BUT NOT IN JACKSON.  WHEN HE WORKED IN JACKSON HIS LAW FIRM PROVIDED
HIM WITH OFFICE SPACE, ALTHOUGH HE NO LONGER PARTICIPATED IN THE FIRM'S
BUSINESS OR SHARED IN ITS PROFITS.  HE USED HIS OWN OFFICE FURNITURE
AND FIXTURES AT THIS OFFICE.  THE RAILROAD, HOWEVER, FURNISHED
TELEPHONE SERVICE AND A TYPEWRITER AND DESK FOR HIS SECRETARY.  IT ALSO
PAID THE SECRETARY'S EXPENSES WHILE IN JACKSON.  MOST OF THE LEGAL
BUSINESS OF THE RAILROAD WAS CENTERED IN OR CONDUCTED FROM JACKSON, BUT
THIS BUSINESS WAS HANDLED BY LOCAL COUNSEL FOR THE RAILROAD.  THE
TAXPAYER'S PARTICIPATION WAS ADVISORY ONLY AND WAS NO DIFFERENT FROM
HIS PARTICIPATION IN THE RAILROAD'S LEGAL BUSINESS IN OTHER AREAS. 

THE TAXPAYER'S PRINCIPAL POST OF BUSINESS WAS AT THE MAIN OFFICE IN
MOBILE.  HOWEVER, DURING THE TAXABLE YEARS OF 1939 AND 1940, HE DEVOTED
NEARLY ALL IF HIS TIME TO MATTERS RELATING TO THE MERGER OF THE
RAILROADS.  SINCE IT WAS LEFT TO HIM WHERE HE WOULD DO HIS WORK, HE
SPENT MOST OF HIS TIME IN JACKSON DURING THIS PERIOD.  IN CONNECTION
WITH THE MERGER, ONE OF THE COMPANIES WAS INVOLVED IN CERTAIN
LITIGATION IN THE FEDERAL COURT IN JACKSON AND THE TAXPAYER
PARTICIPATED IN THAT LITIGATION. 

DURING 1939 HE SPENT 203 DAYS IN JACKSON AND 66 IN MOBILE, MAKING 33
TRIPS BETWEEN THE TWO CITIES.  DURING 1940 HE SPENT 168 DAYS IN JACKSON
AND 102 IN MOBILE, MAKING 40 TRIPS BETWEEN THE TWO CITIES.  THE
RAILROAD PAID ALL OF HIS TRAVELING EXPENSES WHEN HE WENT ON BUSINESS
TRIPS TO POINTS OTHER THAN JACKSON OR MOBILE.  BUT IT PAID NONE OF HIS
EXPENSES IN TRAVELING BETWEEN THESE TWO POINTS OR WHILE HE WAS AT
EITHER OF THEM. 

THE TAXPAYER DEDUCTED $900 IN HIS 1939 INCOME TAX RETURN AND $1,620
IN HIS 1940 RETURN AS TRAVELING EXPENSES INCURRED IN MAKING TRIPS FROM
JACKSON TO MOBILE AND AS EXPENDITURES FOR MEALS AND HOTEL
ACCOMMODATIONS WHILE IN MOBILE.  FN2  THE COMMISSIONER DISALLOWED THE
DEDUCTIONS, WHICH ACTION WAS SUSTAINED BY THE TAX COURT.  BUT THE FIFTH
CIRCUIT COURT OF APPEALS REVERSED THE TAX COURT'S JUDGMENT, 148 F.2D
163, AND WE GRANTED CERTIORARI BECAUSE OF A CONFLICT BETWEEN THE
DECISION BELOW AND THAT REACHED BY THE FOURTH CIRCUIT COURT OF APPEALS
IN BARNHILL V. COMMISSIONER, 148 F.2D 913. 

THE PORTION OF SEC. 23(A)(1)(A) AUTHORIZING THE DEDUCTION OF
"TRAVELING EXPENSES (INCLUDING THE ENTIRE AMOUNT EXPENDED FOR MEALS AND
LODGING) WHILE AWAY FROM HOME IN THE PURSUIT OF A TRADE OR BUSINESS" IS
ONE OF THE SPECIFIC EXAMPLES GIVEN BY CONGRESS IN THAT SECTION OF
"ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE
YEAR IN CARRYING ON ANY TRADE OR BUSINESS."  IT IS TO BE CONTRASTED
WITH THE PROVISION OF SEC. 24(A)(1) OF THE INTERNAL REVENUE CODE
DISALLOWING ANY DEDUCTIONS FOR "PERSONAL, LIVING, OR FAMILY EXPENSES." 
AND IT IS TO BE READ IN LIGHT OF THE INTERPRETATION GIVEN IT BY SEC.
19.23(A)-2 OF TREASURY REGULATIONS 103, PROMULGATED UNDER THE INTERNAL
REVENUE CODE.  THIS INTERPRETATION, WHICH IS PRECISELY THE SAME AS THAT
GIVEN TO IDENTICAL TRAVELING EXPENSE DEDUCTIONS AUTHORIZED BY PRIOR AND
SUCCESSIVE REVENUE ACTS,  FN3 IS DEEMED TO POSSESS IMPLIED LEGISLATIVE
APPROVAL AND TO HAVE THE EFFECT OF LAW.  HELVERING V. WINMILL, 305 U.S.
79; BOEHM V. COMMISSIONER, 326 U.S. 287.  IN PERTINENT PART, THIS
INTERPRETATION STATES THAT "TRAVELING EXPENSES, AS ORDINARILY
UNDERSTOOD, INCLUDE RAILROAD FARES AND MEALS AND LODGING.  IF THE TRIP
IS UNDERTAKEN FOR OTHER THAN BUSINESS PURPOSES, THE RAILROAD FARES ARE
PERSONAL EXPENSES AND THE MEALS AND LODGING ARE LIVING EXPENSES.  IF
THE TRIP IS SOLELY ON BUSINESS, THE REASONABLE AND NECESSARY TRAVELING
EXPENSES, INCLUDING RAILROAD FARES, MEALS, AND LODGING, ARE BUSINESS
EXPENSES  ....  ONLY SUCH EXPENSES AS ARE REASONABLE AND NECESSARY IN
THE CONDUCT OF THE BUSINESS AND DIRECTLY ATTRIBUTABLE TO IT MAY BE
DEDUCTED  ....  COMMUTERS' FARES ARE NOT CONSIDERED AS BUSINESS
EXPENSES AND ARE NOT DEDUCTIBLE." 

THREE CONDITIONS MUST THUS BE SATISFIED BEFORE A TRAVELING EXPENSE
DEDUCTION MAY BE MADE UNDER SEC. 23(A)(1)(A): 

(1)  THE EXPENSE MUST BE A REASONABLE AND NECESSARY TRAVELING
EXPENSE, AS THAT TERM IS GENERALLY UNDERSTOOD.  THIS INCLUDES SUCH
ITEMS AS TRANSPORTATION FARES AND FOOD AND LODGING EXPENSES INCURRED
WHILE TRAVELING. 

(2)  THE EXPENSE MUST BE INCURRED "WHILE AWAY FROM HOME." 

(3)  THE EXPENSE MUST BE INCURRED IN PURSUIT OF BUSINESS.  THIS MEANS
THAT THERE MUST BE A DIRECT CONNECTION BETWEEN THE EXPENDITURE AND THE
CARRYING ON OF THE TRADE OR BUSINESS OF THE TAXPAYER OR OF HIS
EMPLOYER.  MOREOVER, SUCH AN EXPENDITURE MUST BE NECESSARY OR
APPROPRIATE TO THE DEVELOPMENT AND PURSUIT OF THE BUSINESS OR TRADE. 

WHETHER PARTICULAR EXPENDITURES FULFILL THESE THREE CONDITIONS SO AS
TO ENTITLE A TAXPAYER TO A DEDUCTION IS PURELY A QUESTION OF FACT IN
MOST INSTANCES.  SEE COMMISSIONER V. HEININGER, 320 U.S. 467, 475.  AND
THE TAX COURT'S INFERENCES AND CONCLUSIONS ON SUCH A FACTUAL MATTER,
UNDER ESTABLISHED PRINCIPLES, SHOULD NOT BE DISTURBED BY AN APPELLATE
COURT.  COMMISSIONER V. SCOTTISH AMERICAN CO., 323 U.S. 119; DOBSON V.
COMMISSIONER, 320 U.S. 489. 

IN THIS INSTANCE, THE TAX COURT WITHOUT DETAILED ELABORATION CONCLUDED
THAT "THE SITUATION PRESENTED IN THIS PROCEEDING IS, IN PRINCIPLE, NO
DIFFERENT FROM THAT IN WHICH A TAXPAYER'S PLACE OF EMPLOYMENT IS IN ONE
CITY AND FOR REASONS SATISFACTORY TO HIMSELF HE RESIDES IN ANOTHER." 
IT ACCORDINGLY DISALLOWED THE DEDUCTIONS ON THE GROUND THAT THEY
REPRESENT LIVING AND PERSONAL EXPENSES RATHER THAN TRAVELING EXPENSES
INCURRED WHILE AWAY FROM HOME IN THE PURSUIT OF BUSINESS.  THE COURT
BELOW ACCEPTED THE TAX COURT'S FINDINGS OF FACT BUT REVERSED ITS
JUDGMENT ON THE BASIS THAT IT HAD IMPROPERLY CONSTRUED THE WORD "HOME"
AS USED IN THE SECOND CONDITION PRECEDENT TO A TRAVELING EXPENSE
DEDUCTION UNDER SEC. 23(A)(1)(A).  THE TAX COURT, IT WAS SAID,
ERRONEOUSLY CONSTRUED THE WORD TO MEAN THE POST, STATION OR PLACE OF
BUSINESS WHERE THE TAXPAYER WAS EMPLOYED - IN THIS INSTANCE, MOBILE -
AND THUS ERRED IN CONCLUDING THAT THE EXPENDITURES IN ISSUE WERE NOT
INCURRED "WHILE AWAY FROM HOME."  THE COURT BELOW FELT THAT THE WORD
WAS TO BE GIVEN NO SUCH "UNUSUAL" OR "EXTRAORDINARY" MEANING IN THIS
STATUTE, THAT IT SIMPLY MEANT "THAT PLACE WHERE ONE IN FACT RESIDES" OR
"THE PRINCIPAL PLACE OF ABODE OF ONE WHO HAS THE INTENTION TO LIVE
THERE PERMANENTLY."  148 F.2D AT 164.  SINCE THE TAXPAYER HERE
ADMITTEDLY HAD HIS HOME, AS THUS DEFINED, IN JACKSON AND SINCE THE
EXPENSES WERE INCURRED WHILE HE WAS AWAY FROM JACKSON, THE COURT BELOW
HELD THAT THE DEDUCTION WAS PERMISSIBLE. 

THE MEANING OF THE WORD "HOME" IN SEC. 23(A)(1)(A) WITH REFERENCE TO
A TAXPAYER RESIDING IN ONE CITY AND WORKING IN ANOTHER HAS ENGENDERED
MUCH DIFFICULTY AND LITIGATION.  4 MERTENS, LAW OF FEDERAL INCOME
TAXATION (1942) SEC. 25.82.  THE TAX COURT  FN4  AND THE ADMINISTRATIVE
RULINGS FN5  HAVE CONSISTENTLY DEFINED IT AS THE EQUIVALENT OF THE
TAXPAYER'S PLACE OF BUSINESS.  SEE BARNHILL V. COMMISSIONER, SUPRA
(C.C.A.4).  ON THE OTHER HAND, THE DECISION BELOW AND WALLACE V.
COMMISSIONER, 144 F.2D 407(C.C.A. 9), HAVE FLATLY REJECTED THAT VIEW
AND HAVE CONFINED THE TERM TO THE TAXPAYER'S ACTUAL RESIDENCE.  SEE
ALSO COBURN V. COMMISSIONER, 138 F.2D 763(C.C.A.2). 

WE DEEM IT UNNECESSARY HERE TO ENTER INTO OR TO DECIDE THIS
CONFLICT.  THE TAX COURT'S OPINION, AS WE READ IT, WAS GROUNDED NEITHER
SOLELY NOR PRIMARILY UPON THAT AGENCY'S CONCEPTION OF THE WORD "HOME." 
ITS DISCUSSION WAS DIRECTED MAINLY TOWARD THE RELATION OF THE
EXPENDITURES TO THE RAILROAD'S BUSINESS, A RELATIONSHIP REQUIRED BY THE
THIRD CONDITION OF THE DEDUCTION.  THUS EVEN IF THE TAX COURT'S
DEFINITION OF THE WORD "HOME" WAS IMPLICIT IN ITS DECISION AND EVEN IF
THAT DEFINITION WAS ERRONEOUS, ITS JUDGMENT MUST BE SUSTAINED HERE IF
IT PROPERLY CONCLUDED THAT THE NECESSARY RELATIONSHIP BETWEEN THE
EXPENDITURES AND THE RAILROAD'S BUSINESS WAS LACKING.  FAILURE TO
SATISFY ANY ONE OF THE THREE CONDITIONS DESTROYS THE TRAVELING EXPENSE
DEDUCTION. 

TURNING OUR ATTENTION TO THE THIRD CONDITION, THIS CASE IS DISPOSED
OF QUICKLY.  THERE IS NO CLAIM THAT THE TAX COURT MISCONSTRUED THIS
CONDITION OR USED IMPROPER STANDARDS IN APPLYING IT. AND IT IS READILY
APPARENT FROM THE FACTS THAT ITS INFERENCES WERE SUPPORTED BY EVIDENCE
AND THAT ITS CONCLUSION THAT THE EXPENDITURES IN ISSUE WERE NON
DEDUCTIBLE LIVING AND PERSONAL EXPENSES WAS FULLY JUSTIFIED. 

THE FACTS DEMONSTRATE CLEARLY THAT THE EXPENSES WERE NOT INCURRED IN
THE PURSUIT OF THE BUSINESS OF THE TAXPAYER'S EMPLOYER, THE RAILROAD. 
JACKSON WAS HIS REGULAR HOME.  HAD HIS POST OF DUTY BEEN IN THAT CITY
THE COST OF MAINTAINING HIS HOME THERE AND OF COMMUTING OR DRIVING TO
WORK CONCEDEDLY WOULD BE NON-DEDUCTIBLE LIVING AND PERSONAL EXPENSES
LACKING THE NECESSARY DIRECT RELATION TO THE PROSECUTION OF THE
BUSINESS.  THE CHARACTER OF SUCH EXPENSES IS UNALTERED BY THE
CIRCUMSTANCE THAT THE TAXPAYER'S POST OF DUTY WAS IN MOBILE, THEREBY
INCREASING THE COSTS OF TRANSPORTATION, FOOD AND LODGING.  WHETHER HE
MAINTAINED ONE ABODE OR TWO, WHETHER HE TRAVELED THREE BLOCKS OR THREE
HUNDRED MILES TO WORK, THE NATURE OF THESE EXPENDITURES REMAINED THE
SAME. 

THE ADDED COSTS IN ISSUE, MOREOVER, WERE AS UNNECESSARY AND
INAPPROPRIATE TO THE DEVELOPMENT OF THE RAILROAD'S BUSINESS AS WERE HIS
PERSONAL AND LIVING COSTS IN JACKSON.  THEY WERE INCURRED SOLELY AS THE
RESULT OF THE TAXPAYER'S DESIRE TO MAINTAIN A HOME IN JACKSON WHILE
WORKING IN MOBILE, A FACTOR IRRELEVANT TO THE MAINTENANCE AND
PROSECUTION OF THE RAILROAD'S LEGAL BUSINESS.  THE RAILROAD DID NOT
REQUIRE HIM TO TRAVEL ON BUSINESS FROM JACKSON TO MOBILE OR TO MAINTAIN
LIVING QUARTERS IN BOTH CITIES.  NOR DID IT COMPEL HIM, SAVE IN ONE
INSTANCE, TO PERFORM TASKS FOR IT IN JACKSON.  IT SIMPLY ASKED HIM TO
BE AT HIS PRINCIPAL POST IN MOBILE AS BUSINESS DEMANDED AND AS HIS
PERSONAL CONVENIENCE WAS SERVED, ALLOWING HIM TO DIVIDE HIS BUSINESS
TIME BETWEEN MOBILE AND JACKSON AS HE SAW FIT.  EXCEPT FOR THE FEDERAL
COURT LITIGATION, ALL OF THE TAXPAYER'S WORK IN JACKSON WOULD NORMALLY
HAVE BEEN PERFORMED IN THE HEADQUARTERS AT MOBILE.  THE FACT THAT HE
TRAVELED FREQUENTLY BETWEEN THE TWO CITIES AND INCURRED EXTRA LIVING
EXPENSES IN MOBILE, WHILE DOING MUCH OF HIS WORK IN JACKSON, WAS
OCCASIONED SOLELY BY HIS PERSONAL PROPENSITIES.  THE RAILROAD GAINED
NOTHING FROM THIS ARRANGEMENT EXCEPT THE PERSONAL SATISFACTION OF THE
TAXPAYER.    TRAVEL EXPENSES IN PURSUIT OF BUSINESS WITHIN THE MEANING
OF SEC. 23(A)(1)(A) COULD ARISE ONLY WHEN THE RAILROAD'S BUSINESS
FORCED THE TAXPAYER TO TRAVEL AND TO LIVE TEMPORARILY AT SOME PLACE
OTHER THAN MOBILE, THEREBY ADVANCING THE INTERESTS OF THE RAILROAD. 
BUSINESS TRIPS ARE TO BE IDENTIFIED IN RELATION TO BUSINESS DEMANDS AND
THE TRAVELER'S BUSINESS HEADQUARTERS.  THE EXIGENCIES OF BUSINESS
RATHER THAN THE PERSONAL CONVENIENCES AND NECESSITIES OF THE TRAVELER
MUST BE THE MOTIVATING FACTORS.  SUCH WAS NOT THE CASE HERE. 

IT FOLLOWS THAT THE COURT BELOW ERRED IN REVERSING THE JUDGMENT OF
THE TAX COURT.  REVERSED. 

FN1  26 U.S.C. SEC. 23(A)(1)(A), AS AMENDED, 56 STAT. 819.    "SEC.
23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES.  - 

"(1)  TRADE OR BUSINESS EXPENSES.  - 

"(A)  IN GENERAL.  - ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS,
INCLUDING A REASONABLE ALLOWANCE FOR SALARIES OR OTHER COMPENSATION FOR
PERSONAL SERVICES ACTUALLY RENDERED; TRAVELING EXPENSES (INCLUDING THE
ENTIRE AMOUNT EXPENDED FOR MEALS AND LODGING) WHILE AWAY FROM HOME IN
THE PURSUIT OF A TRADE OR BUSINESS; AND RENTALS OR OTHER PAYMENTS
REQUIRED TO BE MADE AS A CONDITION TO THE CONTINUED USE OR POSSESSION,
FOR PURPOSES OF THE TRADE OR BUSINESS, OF PROPERTY TO WHICH THE
TAXPAYER HAS NOT TAKEN OR IS NOT TAKING TITLE OR IN WHICH HE HAS NO
EQUITY." 

FN2  NO CLAIM FOR DEDUCTION WAS MADE BY THE TAXPAYER FOR THE AMOUNTS
SPENT IN TRAVELING FROM MOBILE TO JACKSON.  HE ALSO TOOK TRIPS DURING
THE TAXABLE YEARS TO WASHINGTON, NEW YORK, NEW ORLEANS, BATON ROUGE,
MEMPHIS AND JACKSON (TENN.), WHICH WERE APPARENTLY IN THE NATURE OF
BUSINESS TRIPS FOR WHICH THE TAXPAYER PRESUMABLY WAS REIMBURSED BY THE
RAILROAD.  NO CLAIM WAS MADE IN REGARD TO THEM. 

FN3  ARTICLE 23(A)-2 OF REGULATIONS 101, 94, 86; ARTICLE 122 OF
REGULATIONS 77 AND 74; ARTICLE 102 OF REGULATIONS 69 AND 65; ARTICLE
101(A) OF REGULATIONS 62. 

FN4  BIXLER V. COMMISSIONER, 5 B.T.A. 1181; GRIESEMER V.
COMMISSIONER, 10 B.T.A. 386; BROWN V. COMMISSIONER, 13 B.T.A. 832;
DUNCAN V. COMMISSIONER, 17 B.T.A. 1088; PETERS V. COMMISSIONER, 19
B.T.A. 901; LINDSAY V. COMMISSIONER, 34 B.T.A. 840; POWELL V.
COMMISSIONER, 34 B.T.A. 655; TRACY V. COMMISSIONER, 39 B.T.A. 578;
PRIDDY V. COMMISSIONER, 43 B.T.A. 18; SCHURER V. COMMISSIONER, 3 T.C.
544; GUSTAFSON V. COMMISSIONER, 3 T.C. 998. 

FN5  SECTION 19.23(A)-2 OF TREASURY REGULATIONS 103 DOES NOT ATTEMPT
TO DEFINE THE WORD "HOME" ALTHOUGH THE COMMISSIONER ARGUES THAT THE
STATEMENT THEREIN CONTAINED TO THE EFFECT THAT COMMUTERS' FARES ARE NOT
BUSINESS EXPENSES AND ARE NOT DEDUCTIBLE "NECESSARILY RESTS ON THE
PREMISE THAT 'HOME' FOR TAX PURPOSES IS AT THE LOCALITY OF THE
TAXPAYER'S BUSINESS HEADQUARTERS."  OTHER ADMINISTRATIVE RULINGS HAVE
BEEN MORE EXPLICIT IN TREATING THE STATUTORY HOME AS THE ABODE AT THE
TAXPAYER'S REGULAR POST OF DUTY.  SEE, E.G., O.D. 1021, 5 CUM. BULL. 
174(1921); I.T. 1264, I-1 CUM. BULL.  122(1922); I.T. 3314, 1939-2 CUM.
BULL.  152; G.C.M. 23672, 1943 CUM. BULL.  66. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I THINK THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE AFFIRMED. 
WHEN CONGRESS USED THE WORD "HOME" IN SEC. 23 OF THE CODE, I DO NOT
BELIEVE IT MEANT "BUSINESS HEADQUARTERS."  AND IN MY OPINION THIS CASE
PRESENTS NO OTHER QUESTION. 

CONGRESS ALLOWED THE DEDUCTION FOR "TRAVELING EXPENSES (INCLUDING THE
ENTIRE AMOUNT EXPENDED FOR MEALS AND LODGING) WHILE AWAY FROM HOME IN
THE PURSUIT OF A TRADE OR BUSINESS."  TREASURY REGULATIONS 103, SEC.
19.23(A)-1, ARE TO THE SAME EFFECT, WITH THE WORD "SOLELY" ADDED AFTER
"HOME."  SECTION 19.23(A)-2 ALSO PROVIDES:  "COMMUTERS' FARES ARE NOT
CONSIDERED AS BUSINESS EXPENSES AND ARE NOT DEDUCTIBLE."  BY THIS
DECISION, THE LATTER REGULATION IS ALLOWED, IN EFFECT, TO SWALLOW UP
THE DEDUCTION FOR MANY SITUATIONS WHERE THE REGULATION HAS NO FIT
APPLICATION. 

RESPONDENT'S HOME WAS IN JACKSON, MISSISSIPPI, IN EVERY SENSE, UNLESS
FOR APPLYING SEC. 23.  THERE HE MAINTAINED HIS FAMILY, WITH HIS
PERSONAL, POLITICAL AND RELIGIOUS CONNECTIONS; SCHOOLED HIS CHILDREN;
PAID TAXES, VOTED, AND RESIDED OVER MANY YEARS.  THERE TOO HE KEPT HOLD
UPON HIS PLACE AS A LAWYER, THOUGH NOT SUBSTANTIALLY ACTIVE IN PRACTICE
OTHERWISE THAN TO PERFORM HIS WORK AS GENERAL COUNSEL FOR THE
RAILROAD.  THIS REQUIRED HIS PRESENCE IN MOBILE, ALABAMA, FOR ROUGHLY A
THIRD OF HIS TIME.  THE REMAINDER HE SPENT IN JACKSON AT THE SAME WORK,
EXCEPT FOR THE TIME HE WAS REQUIRED TO TRAVEL TO POINTS OTHER THAN
MOBILE. 

THE COMPANY'S PRINCIPAL OFFICES WERE THERE, INCLUDING ONE SET ASIDE
FOR RESPONDENT'S USE.  BUT THE BULK OF ITS TRACKAGE WAS IN MISSISSIPPI
AND MUCH OF ITS LEGAL WORK, WITH WHICH HE WAS CONCERNED, WAS DONE
THERE.  HIS CHOICE TO KEEP HIS HOME IN JACKSON MUST HAVE BEEN AFFECTED
BY THIS FACT, ALTHOUGH IT WAS MOTIVATED CHIEFLY BY MORE PURELY PERSONAL
CONSIDERATIONS.  IT IS DOUBTFUL INDEED, THOUGH PERHAPS NOT MATERIAL,
WHETHER BY NOT MOVING TO MOBILE HE DID NOT SAVE THE GOVERNMENT FROM
LARGER DEDUCTIONS ON ACCOUNT OF TRAVELING EXPENSE THAN THOSE HE
CLAIMED. 

THERE IS NO QUESTION THEREFORE BUT THAT RESPONDENT'S HOME WAS IN
JACKSON FOR EVERY PURPOSE, UNLESS FOR THE SINGLE ONE OF APPLYING SEC.
23.  NOR IS IT IN DOUBT THAT HE TRAVELED FROM JACKSON TO MOBILE AND
RETURN, AS HE CLAIMED, OR THAT HE SPENT THE SUMS DEDUCTED FOR THAT
PURPOSE, INCLUDING MEALS AND LODGING.  NEITHER IS IT DENIED, AS MATTER
OF FACT, THAT HIS SOLE REASON FOR GOING TO MOBILE WAS TO PERFORM HIS
WORK AS IT REQUIRED HIS PRESENCE OR THAT HE RETURNED TO HIS HOME IN
JACKSON PERIODICALLY WHEN HIS DUTIES NO LONGER REQUIRED HIM TO BE IN
MOBILE. 

I THINK THIS MAKES A CASE SQUARELY WITHIN THE STATUTE AND THE
REGULATIONS.  BUT THE TAX COURT RULED THAT THE CLAIMED DEDUCTIONS WERE
"PERSONAL, LIVING, OR FAMILY EXPENSES."  BECAUSE THE TAXPAYER ELECTED
TO KEEP HIS HOME IN JACKSON, RATHER THAN MOVE TO MOBILE, AND BECAUSE
HIS EMPLOYER DID NOT UNDERTAKE TO PAY THESE EXPENSES, IT VIEWED THE
CASE AS BEING THE SAME AS IF HE HAD MOVED TO MOBILE.  IN THAT EVENT, IT
SAID, HE WOULD HAVE BEEN REQUIRED TO BEAR THE EXPENSES OF HIS OWN MEALS
AND LODGING.  THIS IS OBVIOUS, EVEN THOUGH THE "AS IF" CONCLUSION DOES
NOT FOLLOW.  THE COURT WENT ON, HOWEVER, TO GIVE THE FURTHER REASON FOR
IT:  "THE SITUATION  ...  IS, IN PRINCIPLE, NO DIFFERENT FROM THAT IN
WHICH A TAXPAYER'S PLACE OF EMPLOYMENT IS IN ONE CITY AND FOR REASONS
SATISFACTORY TO HIMSELF HE RESIDES IN ANOTHER."  IT SEEMS QUESTIONABLE
WHETHER, IN SO RULING, THE TAX COURT HAS NOT CONFUSED THE TAXPAYER'S
PRINCIPAL PLACE OF EMPLOYMENT WITH HIS EMPLOYER'S.  FOR ON THE FACTS
JACKSON RATHER THAN MOBILE WOULD SEEM MORE APPROPRIATELY TO BE FOUND
HIS BUSINESS HEADQUARTERS.  BUT, REGARDLESS OF THAT, THE AUTHORITIES
CITED  FN1  AND THE GOVERNMENT'S SUPPORTING ARGUMENT SHOW THAT THE CASE
WAS REGARDED AS IN ESSENCE THE COMMUTER'S, EXCEPTED BY THE
REGULATIONS. 

APART FROM THIS RULING, THE TAX COURT MADE NO FINDING, OF FACT OR
LAW, THAT RESPONDENT WAS NOT ENGAGED "IN THE PURSUIT OF A TRADE OR
BUSINESS"; THAT HE WAS NOT "AWAY FROM HOME"; THAT THE EXPENSES WERE NOT
"BUSINESS EXPENSES" OR "BUSINESS TRAVELING EXPENSES"; OR THAT THEY WERE
NOT "ORDINARY AND NECESSARY."  YET BY A MERRY-GO-ROUND ARGUMENT,  FN2
WHICH ALWAYS COMES BACK TO REST ON THE IDEA THAT "HOME" MEANS "BUSINESS
HEADQUARTERS," THE GOVERNMENT SEEKS TO INJECT SUCH ISSUES AND FINDINGS,
INCLUDING A DOBSON (320 U.S. 489) CONTENTION, INTO THE TAX COURT'S
DETERMINATION.  I THINK THERE WAS ONLY ONE ISSUE, A QUESTION OF LAW
REQUIRING CONSTRUCTION OF THE STATUTE AS TO THE MEANING OF THE WORD
"HOME" AND, IF THAT IS RESOLVED AGAINST THE GOVERNMENT, THE TAX COURT'S
JUDGMENT HAS NO OTHER FOUNDATION ON WHICH TO STAND.  EVERY OTHER
CONTENTION FALLS WHEN THIS ONE DOES.  ALL STAND IF IT IS VALID. 

I AGREE WITH THE COURT OF APPEALS THAT IF CONGRESS HAD MEANT
"BUSINESS HEADQUARTERS," AND NOT "HOME," IT WOULD HAVE SAID "BUSINESS
HEADQUARTERS."  WHEN IT USED "HOME" INSTEAD, I THINK IT MEANT HOME IN
EVERYDAY PARLANCE, NOT IN SOME TWISTED SPECIAL MEANING OF "TAX HOME" OR
"TAX HEADQUARTERS."  FN3  I FIND NO PURPOSE STATED OR IMPLIED IN THE
ACT, THE REGULATIONS OR THE LEGISLATIVE HISTORY TO SUPPORT SUCH A
DISTORTION OR TO USE SEC. 23 AS A LEVER TO FORCE PEOPLE TO MOVE THEIR
HOMES TO THE LOCALITY WHERE THEIR EMPLOYER'S CHIEF BUSINESS
HEADQUARTERS MAY BE, ALTHOUGH THEIR OWN WORK MAY BE DONE AS WELL IN
MAJOR PART AT HOME.  THE ONLY STATED PURPOSE, AND IT IS CLEARLY STATED,
NOT IN WORDS OF ART, IS TO RELIEVE THE TAX BURDEN WHEN ONE IS AWAY FROM
HOME ON BUSINESS. 

THE GOVERNMENT RELIES ON ADMINISTRATIVE CONSTRUCTION, BY THE
COMMISSIONER AND THE TAX COURT, AND SAYS THAT UNLESS THIS IS ACCEPTED
THE ACT CREATES TAX INEQUALITY.  IF SO, IT IS INEQUALITY CREATED BY
CONGRESS, AND IT IS NOT FOR THE COMMISSIONER OR THE TAX COURT, BY
ADMINISTRATIVE RECONSTRUCTION, TO REWRITE WHAT CONGRESS HAS WRITTEN OR
TO CORRECT ITS VIEWS OF EQUALITY.  MOREOVER, IN MY OPINION, THE
INEQUITY, IF ANY, COMES NOT FROM THE STATUTE OR THE REGULATION BUT FROM
THE CONSTRUCTION WHICH IDENTIFIES PETITIONER WITH A COMMUTER. 

THAT WORD TOO HAS LIMITATIONS UNLESS IT ALSO IS MADE A TOOL FOR
REWRITING THE ACT.  THE ORDINARY, USUAL CONNOTATION, CF. 21 I.C.C. 428;
PENNSYLVANIA R. CO. V. TOWERS, 245 U.S. 6, 12, DOES NOT INCLUDE
IRREGULAR, ALTHOUGH FREQUENT JOURNEYS OF 350 MILES, REQUIRING PULLMAN
ACCOMMODATIONS AND SOME TWELVE TO FIFTEEN HOURS, ONE WAY. 

CONGRESS GAVE THE DEDUCTION FOR TRAVELING AWAY FROM HOME ON
BUSINESS.  THE COMMUTER'S CASE, RIGHTLY CONFINED, DOES NOT FALL IN THIS
CLASS.  ONE WHO LIVES IN AN ADJACENT SUBURB OR CITY AND BY USUAL MODES
OF COMMUTATION CAN WORK WITHIN A DISTANCE PERMITTING THE DAILY JOURNEY
AND RETURN, WITH TIME FOR THE DAY'S WORK AND A PERIOD AT HOME, CLEARLY
CAN BE EXCLUDED FROM THE DEDUCTION ON THE BASIS OF THE SECTION'S TERMS
EQUALLY WITH ITS OBVIOUS PURPOSE.  BUT THAT IS NOT TRUE IF "COMMUTER"
IS TO SWALLOW UP THE DEDUCTION BY THE SAME SORT OF CONSTRUCTION WHICH
MAKES "HOME" MEAN "BUSINESS HEADQUARTERS" OF ONE'S EMPLOYER.  IF THE
LINE MAY BE EXTENDED SOMEWHAT TO COVER DOUBTFUL CASES, IT NEED NOT BE
LENGTHENED TO INFINITY OR TO COVER CASES AS FAR REMOVED FROM THE
PREVAILING CONNOTATION OF COMMUTER AS THIS ONE.  INCLUDING IT PUSHES
"COMMUTING" TOO FAR, EVEN FOR THESE TIMES OF RAPID TRANSIT.  FN4 

ADMINISTRATIVE CONSTRUCTION SHOULD HAVE SOME BOUNDS.  IT EXCEEDS WHAT
ARE LEGITIMATE WHEN IT RECONSTRUCTS THE STATUTE TO NULLIFY OR
CONTRADICT THE PLAIN MEANING OF NONTECHNICAL TERMS NOT ARTFULLY
EMPLOYED.  MOREOVER, IN THIS CASE THE MATTER HAS BEEN HELD IN
SUSPENSION BY LITIGATION WITH VARYING RESULTS  FN5  AND APPARENT
QUALIFICATION BY THE TAX COURT CONSEQUENT UPON SOME OF THE DECISIONS. 
FN6 

BY CONSTRUING "HOME" AS "BUSINESS HEADQUARTERS"; BY READING
"TEMPORARILY" AS "VERY TEMPORARILY" INTO SEC. 23; BY BRINGING DOWN
"ORDINARY AND NECESSARY" FROM ITS FIRST SENTENCE INTO ITS SECOND; FN7
BY FINDING "INEQUITY" WHERE CONGRESS HAS SAID NONE EXISTS; BY
CONSTRUING "COMMUTER" TO COVER LONG-DISTANCE, IRREGULAR TRAVEL; AND BY
CONJURING FROM THE "STATUTORY SETTING" A MEANING AT ODDS WITH THE PLAIN
WORKING OF THE CLAUSE, THE GOVERNMENT MAKES OVER UNDERSTANDABLE
ORDINARY ENGLISH INTO HIGHLY TECHNICAL TAX JARGON.  THERE IS ENOUGH OF
THIS IN THE TAX LAWS INESCAPABLY, WITHOUT ADDING MORE IN THE ABSENCE OF
EITHER COMPULSION OR AUTHORITY.  THE ARM OF THE TAX-GATHERER REACHES
FAR.  IN MY JUDGMENT IT SHOULD NOT GO THE LENGTH OF THIS CASE. 
CONGRESS HAS REVISED SEC. 23 ONCE TO OVERCOME NIGGARDLY CONSTRUCTION. 
FN8  IT SHOULD NOT HAVE TO DO SO AGAIN. 

FN1  FRANK H. SULLIVAN, 1 B.T.A. 93; MORT L. BIXLER, 5 B.T.A. 1181;
JENNIE A. PETERS, 19 B.T.A. 901; WALTER M. PRIDDY, 43 B.T.A. 18. 

THE SULLIVAN CASE ILLUSTRATES THE TYPICAL COMMUTER SITUATION.  THE
PETERS CASE ILLUSTRATES THE EXTENSION OF THAT RULING TO GREATER
DISTANCES AND IRREGULAR TRAVEL. 

RECENT DECISIONS, HOWEVER, WHERE THE TRAVELING DISTANCE IS GREAT,
APPEAR TO GO ON THE THEORY, PRESENTED IN THE INSTANT CASE, THAT THE
WORD "HOME" WITHIN THE MEANING OF SEC. 23(A)(1) MEANS "PRINCIPAL PLACE
OF BUSINESS."  SEE TAX COURT MEMORANDUM OPINION, DEC. 13,853(M), 1
C.C.H. TAX SERV. 1945, P. 1268.  THUS, MERTENS SAYS THAT THE
DISALLOWANCE OF TRAVELING EXPENSES TO ONE'S PLACE OF BUSINESS "IS BASED
PRIMARILY ON THE REQUIREMENT THAT THE TRAVELING EXPENSES INCLUDE ONLY
AMOUNTS EXPENDED 'WHILE AWAY FROM HOME.'"  4 MERTENS, LAW OF FEDERAL
INCOME TAXATION, 478. 

FN2  THUS, THE ASSERTION THAT THE DEDUCTIONS WERE "NOT EVEN
'BUSINESS' EXPENSES" IS BROUGHT BACK TO THE MEANING OF "HOME" BY THE
GIVEN REASON THAT "THE MAINTENANCE OF MORE THAN ONE DWELLING PLACE
MANIFESTLY IS NOT ESSENTIAL TO THE PROSECUTION OF A BUSINESS."  AND
THIS, IN TURN, COMPLETES THE CIRCLE BY RESTING ON THE CONCLUSION THAT
THE TAXPAYER HAD TWO DWELLING PLACES, ONE IN MOBILE (PRESUMABLY THE
HOTEL OR HOTELS WHERE HE STOPPED) "WHERE HE RESIDED DURING THE PERIODS
THE LIVING EXPENSES IN QUESTION WERE INCURRED," THE OTHER IN JACKSON
"WHERE HE RESIDED DURING OTHER PERIODS."  LIKEWISE, THE CONCLUSION THAT
THE DEDUCTIONS WERE NOT "ORDINARY AND NECESSARY EXPENSES," SEE NOTE 8,
DEPENDS ON THE VIEW THAT JACKSON WAS NOT "HOME" BUT MOBILE WAS.  SO
WITH THE ASSERTION THAT THE "MOBILE LIVING EXPENSES" WERE NOT "BUSINESS
TRAVELING EXPENSES." 

FN3  CF. COX V. COLLECTOR, 12 WALL.  204; ADDISON V. HOLLY HILL CO.,
322 U.S. 607, 617-618. 

FN4  CONCEIVABLY MEN SOON MAY LIVE IN FLORIDA OR CALIFORNIA AND FLY
DAILY TO WORK IN NEW YORK AND BACK.  POSSIBLY THEY WILL BE REGARDED AS
COMMUTERS WHEN THAT DAY COMES.  BUT, IF SO, THAT IS NOT THIS CASE AND,
IN ANY EVENT, NEITHER SITUATION WAS COMPREHENDED BY CONGRESS WHEN SEC.
23 WAS ENACTED.    FN5  SEE WALLACE V. COMMISSIONER, 144 F.2D
407(C.C.A.9); COBURN V. COMMISSIONER, 138 F.2D 763(C.C.A.2); AND THE
DECISION NOW IN REVIEW, 148 F.2D 163(C.C.A.5), WITH WHICH COMPARE
BARNHILL V. COMMISSIONER AND WINBORNE V. COMMISSIONER, 148 F.2D
913(C.C.A.4). 

FN6  SEE HARRY F. SCHURER, 3 T.C. 544; CHARLES G. GUSTAFSON, 3 T.C.
998; MORTIMER M. MAHONY, C.C.H. TAX CT. SERV., DEC. 14,508(M), APRIL
10, 1945; CHARLES J. MCLENNAN, C.C.H. TAX CT. SERV., DEC. 14,644(M),
JUNE 25, 1945; ROBERT S. SHELLEY, C.C.H. TAX CT. SERV., DEC. 14,642(M),
JUNE 25, 1945. 

FN7  THE LANGUAGE IS:  "ALL THE ORDINARY AND NECESSARY EXPENSES PAID
OR INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR
BUSINESS, INCLUDING A REASONABLE ALLOWANCE FOR SALARIES OR OTHER
COMPENSATION FOR PERSONAL SERVICES ACTUALLY RENDERED; TRAVELING
EXPENSES (INCLUDING THE ENTIRE AMOUNT EXPENDED FOR MEALS AND LODGING)
WHILE AWAY FROM HOME IN THE PURSUIT OF A TRADE OR BUSINESS; ..."  SEC.
23(A)(1)(A), INTERNAL REVENUE CODE. 

FN8  THE TREASURY REGULATIONS IN FORCE IN 1920 ALLOWED DEDUCTION OF
ONLY THE EXCESS OF THE COST OF MEALS AND LODGING AWAY FROM HOME OVER
THE COST AT HOME; AND UNDER EARLIER REGULATIONS ONE OF THIS EXPENSE WAS
ALLOWED.  CONGRESS INSERTED THE WORDS "ALL" AND "ENTIRE" IN THE 1921
ACT TO OVERCOME THIS RULING. 
..END :





COMM'R V. ESTATE OF HOLMES, 326 U.S. 480 


NO. 203.  ARGUED DECEMBER 12, 1945.  - DECIDED JANUARY 2, 1946.  - 148
F.2D 740, REVERSED. 


1.  DECEDENT IN 1935 TRANSFERRED PROPERTY UPON TRUSTS FOR THE BENEFIT
OF THREE SONS, RETAINING NO POWER TO REVEST IN HIMSELF OR IN HIS ESTATE
ANY PART OF THE INCOME OR CORPUS.  DECEDENT WAS NAMED TRUSTEE AND ACTED
AS SUCH UNTIL HIS DEATH.  EACH TRUST WAS TO CONTINUE FOR 15 YEARS, OR
ON CERTAIN CONDITIONS LONGER; AND VARIOUS PROVISIONS WERE MADE FOR
DISPOSITION OVER UPON THE DEATH OF ANY BENEFICIARY.  THE TRUSTEE WAS
AUTHORIZED IN HIS DISCRETION EITHER TO DISTRIBUTE OR TO ACCUMULATE THE
INCOME, AND TO APPLY EACH BENEFICIARY'S SHARE OF THE CORPUS TO THE
WELFARE AND HAPPINESS OF SUCH BENEFICIARY.  DECEDENT RESERVED TO
HIMSELF THE POWER TO TERMINATE ANY OR ALL OF THE TRUSTS, AND TO
DISTRIBUTE THE PRINCIPAL AND ACCUMULATED INCOME TO THE BENEFICIARIES
THEN ENTITLED TO RECEIVE IT.  HELD THAT, UNDER SEC.811(D)(2) OF THE
INTERNAL REVENUE CODE, FOR THE PURPOSE OF THE FEDERAL ESTATE TAX, THE
VALUE OF THE PROPERTY SO TRANSFERRED BY THE DECEDENT WAS INCLUDIBLE IN
HIS GROSS ESTATE, AS AN INTEREST WHEREOF THE "ENJOYMENT" WAS SUBJECT,
AT THE DATE OF HIS DEATH, TO CHANGE THROUGH EXERCISE OF A POWER TO
"ALTER, AMEND, OR REVOKE."  P. 483. 

(A)  ONE WHO HAS THE POWER TO TERMINATE CONTINGENCIES UPON WHICH THE
RIGHT OF ENJOYMENT IS STAKED, SO AS TO MAKE CERTAIN THAT A BENEFICIARY
WILL HAVE IT WHO MAY NEVER COME INTO IT IF THE POWER IS NOT EXERCISED,
HAS NOT DIVESTED HIMSELF OF CONTROL TO THE EXTENT WHICH SEC. 811(D)(2)
REQUIRES IN ORDER TO AVOID THE TAX.  P. 487. 

(B)  DECEDENT'S FAILURE TO RESERVE FOR HIMSELF ANY BENEFICIAL
INTEREST OR POWER TO RECAPTURE ONE IS NOT CONTROLLING.  P. 489. 

(C)  NOR IS IT CONTROLLING THAT THE DECEDENT WAS WITHOUT POWER TO
DESIGNATE BENEFICIARIES OTHER THAN THOSE SPECIFIED IN THE INDENTURE,
AND WAS THEREFORE LIMITED TO CHANGING ENJOYMENT AMONG ONLY THAT GROUP. 
P. 489. 

(D)  UPON THE LANGUAGE OF THE TRUSTS, IT CAN NOT BE SAID THAT THE
DECEDENT RESERVED THE POWER OF TERMINATION TO HIMSELF MERELY AS TRUSTEE
RATHER THAN AS DONOR; AND IT IS THEREFORE UNNECESSARY TO DETERMINE THE
EFFECT OF THE VARIATION BETWEEN SECS. 811(D)(1) AND (2) IN THIS
RESPECT.  P. 489. 

2.  THE WORDS "ENJOYMENT" AND "ENJOY," AS USED IN SEC. 811 OF THE
INTERNAL REVENUE CODE AND SIMILAR STATUTES, ARE NOT TERMS OF ART, BUT
CONNOTE SUBSTANTIAL PRESENT ECONOMIC BENEFIT RATHER THAN TECHNICAL
VESTING OF TITLE OR ESTATES.  P. 486. 

3.  THE 1936 AMENDMENT OF SEC. 302(D) OF THE REVENUE ACT OF 1926,
WHEREBY AS TO TRANSFERS SUBSEQUENT TO JUNE 22, 1936, THE WORDS "OR
TERMINATE" WERE ADDED TO "ALTER, AMEND, OR REVOKE," WAS DECLARATORY OF
THE EXISTING LAW.  P. 488. 

COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF HOLMES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 702, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE TAX COURT, 3 T.C. 571, WHICH SET ASIDE THE COMMISSIONER'S
DETERMINATION OF A DEFICIENCY IN ESTATE TAX. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

IN WHITE V. POOR, 296 U.S. 98, THE QUESTION AROSE WHETHER THE POWER
"TO ALTER, AMEND, OR REVOKE" INCLUDED THE POWER OF A DECEDENT TO
TERMINATE A TRUST SO AS TO BRING THE TRUST ESTATE WITHIN HIS GROSS
ESTATE FOR PURPOSES OF THE TRANSFER TAX IMPOSED BY SEC. 302(D) OF THE
REVENUE ACT OF 1926, C. 27, 44 STAT. 9, 71.  THE COURT, FINDING IT
UNNECESSARY TO DETERMINE THAT QUESTION, DISPOSED OF THE CASE UPON
ANOTHER GROUND.  THE QUESTION IS HERE AGAIN, THIS TIME INESCAPABLY, BUT
WITH A FURTHER LEGISLATIVE HISTORY AND A SOMEWHAT DIFFERENT SETTING OF
FACT. 

IN 1936, IMMEDIATELY FOLLOWING THE WHITE DECISION, CONGRESS REVISED
SEC. 302(D) BY REWRITING IT INTO TWO SEPARATE PARAGRAPHS RELATING TO
"REVOCABLE TRANSFERS," ONE APPLYING TO TRANSFERS AFTER JUNE 22, 1936,
THE OTHER TO TRANSFERS ON OR PRIOR TO THAT DATE.  THESE ARE NOW SECS.
811(D)(1) AND (2) OF THE INTERNAL REVENUE CODE, WHICH ARE SET FORTH IN
THE MARGIN.  FN1  FOR PRESENT PURPOSES THE DIFFERENCE CLAIMED TO BE
IMPORTANT CONSISTED IN CHANGING THE PHRASE "TO ALTER, AMEND, OR REVOKE"
APPLYING TO TRANSFERS ON OR PRIOR TO JUNE 22, 1936, SO THAT IN SEC.
811(D)(1) IT READS "TO ALTER, AMEND, REVOKE, OR TERMINATE," AS TO
TRANSFERS AFTER THAT DATE. 

HOWEVER SEC. 811(D)(2) GOVERNS THE TRANSFER IN THIS CASE, SINCE IT
WAS MADE IN JANUARY, 1935, PRIOR TO THE DIVIDING DATE.  AND THE
QUESTION MOST MOOTED HAS BEEN WHETHER THE CHANGE WAS ONE OF SUBSTANCE
OR WAS ONLY A CLARIFYING AMENDMENT.  PUT DIFFERENTLY, THE PRINCIPAL
ISSUE IS WHETHER POWER TO "ALTER, AMEND, OR REVOKE" INCLUDED POWER
MERELY TO TERMINATE THE INTERESTS CREATED BY THE TRUST OR REQUIRED SOME
FURTHER CHANGE. 

THE TAX COURT AND THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT,
ONE JUDGE DISSENTING, HAVE RULED THAT THE CHANGE WAS SUBSTANTIAL, NOT
MERELY DECLARATORY.  3 T.C. 571; 148 F.2D 740.  ACCORDINGLY THEY HAVE
HELD THAT NO DEFICIENCY RESULTED FROM THE TAXPAYER'S FAILURE TO INCLUDE
THE VALUE OF THE TRUST ESTATE CREATED BY THE DECEDENT HOLMES IN HIS
GROSS ESTATE FOR ESTATE TAX PURPOSES.  THE COMMISSIONER MAINTAINS THE
CONTRARY VIEW.  BECAUSE OF ALLEGED CONFLICT WITH DECISIONS FROM OTHER
CIRCUITS,  FN2  CERTIORARI WAS GRANTED.  326 U.S. 702. 

WE THINK THE TAX COURT AND THE COURT OF APPEALS WERE IN ERROR IN
THEIR VIEW OF THE STATUTE'S EFFECT. 

THE FACTS WERE STIPULATED.  IN SO FAR AS NECESSARY TO STATE, THEY ARE
AS FOLLOWS.  ON JANUARY 20, 1935, BY A SINGLE TRUST INDENTURE HOLMES
CREATED THREE SEVERAL IRREVOCABLE TRUSTS, ONE FOR EACH OF THREE SONS
THEN AGED 22, 19 AND 14 YEARS RESPECTIVELY.  EACH WAS GIVEN THE
BENEFICIAL INTEREST IN ONE-THIRD OF A COMMON FUND CONSISTING OF
CORPORATE STOCK LATER CONVERTED INTO OTHER ASSETS.  FN3  THE THREE
TRUSTS WERE IDENTICAL IN TERMS.  HOLMES WAS NAMED AND ACTED AS TRUSTEE
UNTIL HIS DEATH OCTOBER 5, 1940. 

EACH TRUST WAS TO CONTINUE FOR A PERIOD OF FIFTEEN YEARS, UNLESS
EARLIER TERMINATED UNDER POWER RESERVED TO THE GRANTOR, OR FOR A LONGER
TERM ON SPECIFIED CONDITIONS SUMMARIZED BELOW.  BUT THE GRANTOR
RESERVED TO HIMSELF DURING HIS LIFETIME THE POWER TO TERMINATE ANY OR
ALL OF THE TRUSTS AND DISTRIBUTE THE PRINCIPAL, WITH ACCUMULATED
INCOME, TO THE BENEFICIARIES THEN ENTITLED TO RECEIVE IT.  FN4  HE
RETAINED NO POWER TO REVEST IN HIMSELF OR HIS ESTATE ANY PORTION OF THE
CORPUS OR INCOME. 

VARIOUS PROVISIONS FOR DISPOSITION OVER WERE MADE TO COVER
CONTINGENCIES CREATED BY THE DEATH OF BENEFICIARIES DURING CONTINUANCE
OF THE TRUST.  GENERALLY STATED, THE SCHEME WAS THAT THE SURVIVING
ISSUE OF EACH SON SHOULD TAKE HIS SHARE OF THE CORPUS, RECEIVING IT
SHARE AND SHARE ALIKE, UNCONDITIONALLY IF OVER 21; AS BENEFICIARIES
UNTIL ATTAINING THAT AGE, IF UNDER IT.  IF A SON SHOULD DIE WITHOUT
ISSUE, HIS "SHARE OR TRUST" WAS TO GO "PRO RATA" TO THE OTHER TWO SONS,
OR THEIR SURVIVING ISSUE PER STIRPES; IF EITHER OTHER SON SHOULD BE
DEAD WITHOUT ISSUE, THE SURVIVOR OR HIS ISSUE WAS TO TAKE THE WHOLE;
AND IF ALL THE SONS SHOULD BE DECEASED WITHOUT ISSUE, WHATEVER MIGHT
REMAIN IN THE TRUST ESTATE WAS GIVEN TO THE GRANTOR'S WIFE, IF LIVING;
IF NOT, TO HER HEIRS AT LAW.  THE TRUST WAS TO TERMINATE IN ANY EVENT
UPON THE DEATH OF THE LAST SURVIVOR OF THE THREE SONS AND THE
EXPIRATION OF TWENTY-ONE YEARS THEREAFTER. 

THE TRUSTEE WAS GIVEN BROAD DISCRETIONARY POWER TO APPLY EACH
BENEFICIARY'S SHARE OF THE CORPUS FOR HIS MAINTENANCE, WELFARE, COMFORT
OR HAPPINESS, WITH A PRECATORY SUGGESTION OF LIBERALITY. 

THE INCOME WAS SUBJECT TO SPENDTHRIFT PROVISIONS AND DISCRETIONARY
POWER OF ACCUMULATION.  IF NOT ACCUMULATED, IT WAS TO BE DISTRIBUTED TO
THE BENEFICIARY, PREFERABLY IN MONTHLY INSTALMENTS. 

THE PRINCIPAL CONTENTION IS THAT THE SUM OF THE VARIOUS PROVISIONS
WAS TO CREATE OR RESERVE TO THE DECEDENT ONLY A POWER TO ACCELERATE IN
TIME THE ENJOYMENT OF THE BENEFICIAL INTERESTS BROUGHT INTO BEING BY
THE TRUSTS; THAT THESE WERE VESTED INTERESTS; THAT NO POWER WAS
RESERVED TO REVEST THEM OR ANY OF THEM IN THE DONOR OR HIS ESTATE OR TO
CHANGE OR ALTER THEM, OR THE TERMS OF THE GIFTS, IN ANY MANNER OTHER
THAN BY MERE ACCELERATION OF ENJOYMENT; AND THAT THE POWERS THUS
RESERVED ARE NOT SUFFICIENT TO BRING THE TRUST ESTATE, OR ANY PART OF
IT, WITHIN THE COVERAGE OF SEC. 811(D)(2).  FN5 

THIS VIEW PRESUPPOSES TWO THINGS.  ONE IS THAT TERMINATION OF
CONTINGENCIES UPON WHICH ENJOYMENT IS DEPENDENT DOES NOT "CHANGE,
ALTER, OR REVOKE" ENJOYMENT; THE OTHER, THAT THE POWER "TO ALTER,
AMEND, OR REVOKE" SPECIFIED IN SEC. 811(D)(2) DOES NOT INCLUDE A POWER
TO TERMINATE CONTINGENCIES WHICH ACCELERATE ENJOYMENT, WITH THE EFFECT
OF MAKING CERTAIN THAT THE BENEFICIARY TAKING WILL HAVE IT RATHER THAN
OTHERS TO WHOM IT WOULD OR MIGHT INURE IF TERMINATION WERE LONGER
DEFERRED. 

ONE DIFFICULTY WITH RESPONDENT'S POSITION IS IN ITS CONCEPTION OF
"ENJOYMENT."  MORE THAN ONCE RECENTLY WE HAVE EMPHASIZED THAT
"ENJOYMENT" AND "ENJOY," AS USED IN THESE AND SIMILAR STATUTES, ARE NOT
TERMS OF ART, BUT CONNOTE SUBSTANTIAL PRESENT ECONOMIC BENEFIT RATHER
THAN TECHNICAL VESTING OF TITLE OR ESTATES.  CF. UNITED STATES V.
PELZER, 312 U.S. 399, 403; FONDREN V. COMMISSIONER, 324 U.S. 18, 20;
COMMISSIONER V. DISSTON, 325 U.S. 442.  FN6  IN THIS SENSE IT IS CLEAR
THAT NONE OF THE SONS HERE HAD A PRESENT RIGHT TO IMMEDIATE ENJOYMENT
OF EITHER INCOME OR PRINCIPAL, SEE COMMISSIONER V. DISSTON, SUPRA,
ALTHOUGH EACH MAY HAVE BEEN INVESTED WITH WHAT RESPONDENT REGARDS AS A
"FEE SIMPLE" IN AN EQUITABLE INTEREST, SUBJECT TO DIVESTMENT BY THE
CONTINGENCY OF THE BENEFICIARY'S DEATH DURING CONTINUANCE OF THE
TRUST.  SO LONG AS IT CONTINUED - AND IT MIGHT CONTINUE FOR THE LIFE OF
THE SURVIVOR OF THE THREE SONS AND 21 YEARS - IT COULD NOT BE SAID WITH
ASSURANCE THAT ANY OF THE SONS, OR HIS ISSUE, WOULD COME INTO PRESENT
ENJOYMENT OF HIS SHARE, OR ANY PART OF IT; FOR IN CONNECTION WITH THE
POSSIBLE OCCURRENCE OF MANY CONTINGENCIES, INCLUDING THE GRANTOR'S
DEATH AND HIS EARLIER EXERCISE OF THE POWER OF TERMINATION, IT IS TO BE
RECALLED THAT THE GRANTOR RESERVED TO HIMSELF, WHILE ACTING AS TRUSTEE,
THE POWER TO ACCUMULATE THE INCOME. 

IT SEEMS OBVIOUS THAT ONE WHO HAS THE POWER TO TERMINATE
CONTINGENCIES UPON WHICH THE RIGHT OF ENJOYMENT IS STAKED, SO AS TO
MAKE CERTAIN THAT A BENEFICIARY WILL HAVE IT WHO MAY NEVER COME INTO IT
IF THE POWER IS NOT EXERCISED, HAS POWER WHICH AFFECTS NOT ONLY THE
TIME OF ENJOYMENT BUT ALSO THE PERSON OR PERSONS WHO MAY ENJOY THE
DONATION.  MORE THEREFORE IS INVOLVED THAN MERE ACCELERATION OF THE
TIME OF ENJOYMENT.  THE VERY RIGHT OF ENJOYMENT IS AFFECTED, THE
DIFFERENCE DEPENDENT UPON THE GRANTOR'S POWER BEING BETWEEN PRESENT
SUBSTANTIAL BENEFIT AND THE MERE PROSPECT OR POSSIBILITY, EVEN THE
PROBABILITY, THAT ONE MAY HAVE IT AT SOME UNCERTAIN FUTURE TIME OR
PERHAPS NOT AT ALL.  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 SEC. 811(D)(2)
REQUIRES IN ORDER TO AVOID THE TAX. 

BUT THE RESPONDENT RELIES HEAVILY UPON THE LEGISLATIVE HISTORY AND
THE CONTINUED USE OF "ALTER, AMEND, OR REVOKE" IN THE 1936 REVISION,
WHICH AT THE SAME TIME INTRODUCED "OR TERMINATE" TO GOVERN FUTURE
TRANSACTIONS, AS EXPRESSIVE OF INTENTION TO DIFFERENTIATE THE TWO
CLASSES OF TRANSFERS.  THIS VIEW PUTS EMPHASIS ON THE MEANING OF
"REVOKE" RATHER THAN OF "ENJOYMENT," AND EXCLUDES FROM THAT TERM'S
SCOPE A POWER NOT AMOUNTING TO MORE THAN ONE OF TERMINATION. 

WE THINK THE HISTORY GIVES THE OPPOSITE STORY.  THE 1936 REVISION
RESULTED FROM THE WHITE DECISION, WHICH RAISED DOUBT WHETHER CONGRESS
HAD INCLUDED THE POWER TO TERMINATE IN THE WORDS "ALTER, AMEND, OR
REVOKE."  TO CLARIFY THE MATTER CONGRESS REMOVED ALL DOUBT FOR THE
FUTURE BY ENACTING SEC. 811(D)(1).  AT THE SAME TIME IT ADOPTED SEC.
811(D)(2), WHICH RETAINED THE EARLIER PHRASING.  THIS WAS FROM CONCERN
THAT RETROACTIVE APPLICATION OF SEC. 811(D)(1) SHOULD NOT IMPOSE TAXES
ON PRIOR TRANSFERS NOT COMPREHENDED BY THE PRIOR LAW, AS THE CONCLUDING
SENTENCE OF SEC. 811(D)(2) SHOWS.  FN7  NOTWITHSTANDING THIS AND THE
DOUBT CREATED BY WHITE V. POOR, SUPRA, THE REPORT OF THE COMMITTEE ON
WAYS AND MEANS OF THE HOUSE OF REPRESENTATIVES EXPRESSLY STATES THAT
THE ADDITION OF "OR TERMINATE" IN SEC. 811(D)(1) WAS "DECLARATORY OF
EXISTING LAW."  FN8 ADMINISTRATIVE INTERPRETATION, INCLUDING TREASURY
REGULATIONS, SUPPORT THIS VIEW,  FN9  WHICH ALSO IS EITHER FOLLOWED OR
INDICATED IN DECISIONS OF THE CIRCUIT COURTS OF APPEALS, EXCEPT THE ONE
NOW IN REVIEW.  FN10  AS WE HAVE POINTED OUT, THAT VIEW IS MORE
CONSONANT WITH THE STRUCTURE AND INTERPRETATION GIVEN CONCOMITANT
TAXING ACT PROVISIONS.  FOR ALL THESE REASONS, WE THINK IT MUST
PREVAIL. 

RESPONDENT'S OTHER CONTENTIONS REQUIRE ONLY BRIEF NOTICE.  THE
CONTINGENCIES HERE WERE TOO NUMEROUS AND TOO IMPORTANT IN THEIR EFFECTS
NOT ONLY UPON THE TIME BUT ALSO UPON THE RIGHT OF IMMEDIATE ENJOYMENT
FOR THEM TO BE REGARDED AS TRIVIAL OR INCONSEQUENTIAL, AS RESPONDENT
URGES.  DECEDENT'S FAILURE TO RESERVE FOR HIMSELF ANY BENEFICIAL
INTEREST OR POWER TO RECAPTURE ONE IS NOT CONTROLLING.  PORTER V.
COMMISSIONER, 288 U.S. 436.  NOR IS THE FACT THAT HE COULD NOT SELECT
NEW BENEFICIARIES OUTSIDE THOSE COMPREHENDED BY THE INDENTURE, AND WAS
THEREFORE LIMITED TO CHANGING ENJOYMENT AMONG THAT GROUP.  FN11 

IT SEEMS SUGGESTED THAT THE POWER OF TERMINATION WAS RESERVED TO THE
GRANTOR, NOT IN THE CAPACITY OF DONOR, BUT ONLY IN THAT OF TRUSTEE,
FROM WHICH THE CONCLUSION APPEARS TO BE DRAWN THAT NO POWER OF
TERMINATION WAS RESERVED WITHIN THE MEANING OF SEC. 811(D)(2).  AS WE
HAVE NOTED, FN12  THE ELEVENTH PARAGRAPH OF THE INDENTURE IS NOT WHOLLY
CLEAR CONCERNING THE PREMISE.  BUT IN TERMS THE RESERVATION IS TO THE
"GRANTOR, DURING HIS LIFETIME" AND GRAMMATICAL CONSTRUCTION OF THE
SECOND SENTENCE SEEMS TO INDICATE THE QUALIFYING CLAUSE "WHILE ACTING
AS TRUSTEE HEREUNDER" WAS INTENDED TO APPLY ONLY TO THE DECEDENT'S SON
OR SONS ACTING IN THAT CAPACITY.  FN13  IF THE QUESTION HAS BEEN SAVED,
WE CANNOT SAY UPON THIS LANGUAGE THAT THE GRANTOR DID NOT RESERVE THE
POWER OF TERMINATION TO HIMSELF AS DONOR RATHER THAN MERELY AS
TRUSTEE.  IT IS UNNECESSARY THEREFORE TO DETERMINE WHETHER, IF THE
RESERVATION WERE DIFFERENT, THE VARIATION IN WORDING BETWEEN SECS.
811(D)(1) AND (2) IN THIS RESPECT WOULD BE MATERIAL.  FN14  WE HAVE
CONSIDERED RESPONDENT'S REMAINING CONTENTIONS AND FIND THEM WITHOUT
MERIT. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
REVERSED AND REMANDED. 

FN1  "SEC.  811.  GROSS ESTATE.  THE VALUE OF THE GROSS ESTATE OF THE
DECEDENT SHALL BE DETERMINED BY INCLUDING THE VALUE AT THE TIME OF HIS
DEATH OF ALL PROPERTY, REAL OR PERSONAL, TANGIBLE OR INTANGIBLE,
WHEREEVER SITUATED, EXCEPT REAL PROPERTY SITUATED OUTSIDE OF THE UNITED
STATES - 

"(D)  REVOCABLE TRANSFERS.  - (1)  TRANSFERS AFTER JUNE 22, 1936.  -
TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS AT ANY
TIME MADE A TRANSFER (EXCEPT IN CASE OF A BONA-FIDE SALE FOR AN
ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH), BY TRUST OR
OTHERWISE, WHERE THE ENJOYMENT THEREOF WAS SUBJECT AT THE DATE OF HIS
DEATH TO ANY CHANGE THROUGH THE EXERCISE OF A POWER (IN WHATEVER
CAPACITY EXERCISABLE) BY THE DECEDENT ALONE OR BY THE DECEDENT IN
CONJUNCTION WITH ANY OTHER PERSON (WITHOUT REGARD TO WHEN OR FROM WHAT
SOURCE THE DECEDENT ACQUIRED SUCH POWER), TO ALTER, AMEND, REVOKE, OR
TERMINATE, OR WHERE ANY SUCH POWER IS RELINQUISHED IN CONTEMPLATION OF
DECEDENT'S DEATH; 

"(2)  TRANSFERS ON OR PRIOR TO JUNE 22, 1936.  - TO THE EXTENT OF ANY
INTEREST THEREIN OF WHICH THE DECEDENT HAS AT ANY TIME MADE A TRANSFER,
BY TRUST OR OTHERWISE, WHERE THE ENJOYMENT THEREOF WAS SUBJECT AT THE
DATE OF HIS DEATH TO ANY CHANGE THROUGH THE EXERCISE OF A POWER, EITHER
BY THE DECEDENT ALONE OR IN CONJUNCTION WITH ANY PERSON, TO ALTER,
AMEND, OR REVOKE, OR WHERE THE DECEDENT RELINQUISHED ANY SUCH POWER IN
CONTEMPLATION OF HIS DEATH, EXCEPT IN CASE OF A BONA FIDE SALE FOR AN
ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH.  EXCEPT IN
THE CASE OF TRANSFERS MADE AFTER JUNE 22, 1936, NO INTEREST OF THE
DECEDENT OF WHICH HE HAS MADE A TRANSFER SHALL BE INCLUDED IN THE GROSS
ESTATE UNDER PARAGRAPH (1) UNLESS IT IS INCLUDIBLE UNDER THIS
PARAGRAPH."  26 U.S.C. SEC. 811.    FN2  MELLON V. DRISCOLL, 117 F.2D
477(C.C.A.3); COMMISSIONER V. HOFHEIMER'S ESTATE, 149 F.2D
733(C.C.A.2).  SEE ALSO THE AUTHORITIES CITED IN NOTE 11 INFRA. 

FN3  THE CORPORATION WHICH HAD ISSUED THE STOCK WAS LIQUIDATED AND
THE CORPORATE ASSETS WERE TRANSFERRED TO THE TRUST TO REPLACE THE
STOCK. 

FN4  THE POWER OF TERMINATION WAS RESERVED BY PARAGRAPH ELEVEN OF THE
INDENTURE, AS FOLLOWS: 

"GRANTOR, DURING HIS LIFETIME, AND MY SON OR SONS HEREIN NAMED, WHILE
ACTING AS TRUSTEE HEREUNDER, MAY, IF DEEMED ADVISABLE BY THEM AS
TRUSTEE, DISTRIBUTE TO EITHER OF GRANTOR'S CHILDREN, THE WHOLE OR ANY
PART OF THE PRINCIPAL OF THEIR RESPECTIVE TRUSTS, AND THEIR INTERESTS
THEREUNDER.  AND GRANTOR MAY, DURING HIS LIFETIME, IF DEEMED ADVISABLE
BY HIM, AND MY SON OR SONS HEREIN NAMED, WHILE ACTING AS TRUSTEE
HEREUNDER, MAY, IF DEEMED ADVISABLE BY THEM AS TRUSTEE, TERMINATE
EITHER OR ALL OF SAID TRUSTS HEREIN CREATED FOR THE RESPECTIVE BENEFIT
OF MY SAID SONS, AND DISTRIBUTE THE PRINCIPAL OF THE TRUST TO THE
PERSONS ENTITLED TO RECEIVE THE SAME UNDER THE TERMS HEREOF ON THE DATE
OF SUCH TERMINATION." 

IT SEEMS QUESTIONABLE ON THE WORDING THAT THE GRANTOR'S POWER OF
TERMINATION, LIKE THAT OF HIS SONS, WAS LIMITED BY THE CLAUSE "WHILE
ACTING AS TRUSTEE HEREUNDER."  SEE NOTE 13 AND TEXT. 

FN5  THE TAXPAYER ASSERTS THAT EACH SON ACQUIRED, ON EXECUTION OF THE
INDENTURE, "A FEE SIMPLE TITLE TO ONE-THIRD OF THE TRUST CORPUS AND
INCOME," SUBJECT ONLY TO THE TRUSTEE'S POWER OF MANAGEMENT FOR 15 YEARS
AT THE MOST AND TO THE SON'S LIVING UNTIL THIS POWER SHOULD END.  THE
RESERVED POWER OF TERMINATION, IT IS SAID, APPLIES ONLY TO THE SEVERAL
CONTINGENCIES WHICH MIGHT AFFECT THE TIME OF ENJOYMENT, BUT NOT
ENJOYMENT ITSELF. 

FN6  IT IS TRUE THAT THIS CASE IS NOT ONE INVOLVING THE TAXABILITY OF
GIFTS OF "FUTURE INTERESTS IN PROPERTY" AS WAS TRUE OF THE CASES
CITED.  IT IS LIKEWISE TRUE THAT THE LAWS RELATING TO ESTATE TAXES AND
THOSE RELATING TO GIFT TAXES ARE NOT COMPLETELY RECIPROCAL.  ESTATE OF
SANFORD V. COMMISSIONER, 308 U.S. 39; SMITH V. SHAUGHNESSY, 318 U.S.
176.  BUT THERE CAN BE NO DIFFERENCE IN THE MEANING OF THE WORDS
"ENJOYMENT" AND "ENJOY" AS THEY ARE USED IN THE PERTINENT STATUTORY
PROVISIONS RESPECTIVELY. 

FN7  SEE NOTE 1. 

FN8  THE REPORT STATED:  "ANOTHER CHANGE MADE IN SUBSECTION (A) OF
WITH THE POWERS TO ALTER, AMEND, OR REVOKE.  IN THE CASE OF WHITE V.
POOR, SUPRA, THE SUPREME COURT DID NOT PASS ON THE QUESTION OF WHETHER
THE POWER TO TERMINATE WAS INCLUDED IN THE LANGUAGE RELATING TO A POWER
'TO ALTER, AMEND OR REVOKE.'  SINCE IN SUBSTANCE A POWER TO TERMINATE
IS THE EQUIVALENT OF A POWER TO REVOKE, THIS QUESTION SHOULD BE SET AT
REST.  EXPRESS PROVISION TO THAT EFFECT HAS BEEN MADE AND IT IS
BELIEVED THAT IT IS DECLARATORY OF EXISTING LAW."  H. REP. NO. 2818,
74TH CONG., 2D SESS., 10.  THE REPORT WAS ISSUED IN CONNECTION WITH
H.R. 12,793, OF THE SAME SESSION, OF WHICH SEC. 206 CONTAINED THE
CHANGES LATER ENACTED, WITHOUT PRESENTLY MATERIAL DIFFERENCE, AS SEC.
805 OF THE REVENUE ACT OF 1936, NOW SEC. 811(D) OF THE CODE. 

FN9  SEE TREASURY REGULATIONS 105, SEC. 81.20, STATING:  "SUCH
ADDITION IS CONSIDERED BUT DECLARATORY OF THE MEANING OF THE
SUBDIVISION PRIOR TO THE AMENDMENT.  A POWER TO TERMINATE CAPABLE OF
BEING SO EXERCISED AS TO REVEST IN THE DECEDENT THE OWNERSHIP OF THE
TRANSFERRED PROPERTY OR AN INTEREST THEREIN, OR AS OTHERWISE TO INURE
TO HIS BENEFIT OR THE BENEFIT OF HIS ESTATE, IS, TO THAT EXTENT, THE
EQUIVALENT OF A POWER TO 'REVOKE,' AND WHEN OTHERWISE SO EXERCISABLE AS
TO EFFECT A CHANGE IN THE ENJOYMENT, IS THE EQUIVALENT OF A POWER TO
'ALTER,'" 

FN10  CF. THE AUTHORITIES CITED IN NOTE 11. 

FN11  CHICKERING V. COMMISSIONER, 118 F.2D 254; COMMISSIONER V.
HOFHEIMER'S ESTATE, 149 F.2D 733; COMMISSIONER V. BRIDGEPORT CITY TRUST
CO., 124 F.2D 48; GUGGENHEIM V. HELVERING, 117 F.2D 469; COMMISSIONER
V. CHASE NATIONAL BANK, 82 F.2D 157; UNION TRUST CO. V. DRISCOLL, 138
F.2D 152; MILLARD V. MALONEY, 121 F.2D 257; MELLON V. DRISCOLL, 117
F.2D 477; HOLDERNESS V. COMMISSIONER, 86 F.2D 137. 

FN12  NOTE 4. 

FN13  IBID.  THE PARENTHETICAL PHASE "(IN WHATEVER CAPACITY
EXERCISABLE)" WAS ADDED TO SEC. 811(D)(1) AT THE SAME TIME AS "OR
TERMINATE," AND POSSIBLY ALSO AS A CONSEQUENCE OF THE DECISION IN WHITE
V. POOR.  ALTHOUGH THE LEGISLATIVE REPORTS ARE NOT CLEAR, SEE H. REP.
NO. 2818, 74TH CONG., 2D SESS., 9, THIS CHANGE ALSO HAS BEEN HELD TO
HAVE BEEN DECLARATORY OF EXISTING LAW.  WELCH V. TERHUNE, 126 F.2D 695;
UNION TRUST CO. V. DRISCOLL, 138 F.2D 152; SEE ALSO TREAS. REG. 105,
SEC. 81.20; ESTATE OF NETTLETON V. COMMISSIONER, 4 T.C. 987. 

FN14  SEE THE PRECEDING NOTE. 

MR. JUSTICE DOUGLAS DISSENTS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















HERCULES GASOLINE CO. V. COMM'R, 326 U.S. 425 


NO. 93.  ARGUED DECEMBER 6, 1945.  - DECIDED DECEMBER 17, 1945.  - 147
F.2D 972, AFFIRMED. 


1.  THE REVENUE ACT OF 1936 IMPOSED A TAX ON UNDISTRIBUTED PROFITS,
BUT SEC. 26(C)(1) ALLOWED CREDIT, IN THE COMPUTATION OF THE TAX, FOR
SUCH UNDISTRIBUTED EARNINGS AS THE CORPORATION COULD NOT DISTRIBUTE
"WITHOUT VIOLATING A PROVISION OF A WRITTEN CONTRACT EXECUTED BY THE
CORPORATION ...  WHICH PROVISION EXPRESSLY DEALS WITH THE PAYMENT OF
DIVIDENDS."  HELD THAT THE CREDIT WAS NOT ALLOWABLE WHERE RESTRICTIONS
ON THE PAYMENT OF DIVIDENDS WERE CONTAINED IN PROVISIONS OF PREFERRED
STOCK CERTIFICATES INCORPORATING BY REFERENCE TERMS OF THE
CORPORATION'S CHARTER.  P. 428. 

2.  SECTION 26(C)(1) OF THE REVENUE ACT OF 1936 IS LIMITED TO
CONTRACTS INVOLVING ORDINARY OBLIGATIONS TO CREDITORS (HELVERING V.
NORTHWEST STEEL MILLS, 311 U.S. 46), AND DOES NOT APPLY TO OBLIGATIONS
TO PREFERRED STOCKHOLDERS, SINCE THEY ARE NOT CREDITORS.  P. 428. 

HERCULES GASOLINE CO., INC. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 701, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE TAX COURT SUSTAINING THE COMMISSIONER'S ACTION IN REJECTING CLAIMS
FOR CERTAIN CREDITS UNDER SEC. 26(C)(1) OF THE REVENUE ACT OF 1936
AGAINST THE TAX ON UNDISTRIBUTED PROFITS IMPOSED BY THAT ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US TO CONSTRUE SEC. 26(C)  FN1  OF THE
UNDISTRIBUTED PROFITS TAX LAW, 49 STAT. 1648, ENACTED BY CONGRESS IN
1936.  THE UNDISTRIBUTED PROFITS TAX, WHICH WAS NOT CONTINUED BY
CONGRESS AFTER 1938, WAS A SURTAX AT GRADUATED RATES UPON CORPORATE
PROFITS NOT DISTRIBUTED DURING THE TAX YEAR BY WAY OF DIVIDENDS. 
PAYMENT OF DIVIDENDS IS PREVENTED BY CERTAIN CONTRACT PROVISIONS. 
SUBDIVISION (C)(1) OF THE SECTION ALLOWED SUCH A CREDIT WHERE A
DISTRIBUTION OF EARNINGS WOULD VIOLATE A "PROVISION OF A WRITTEN
CONTRACT EXECUTED BY THE CORPORATION  ...  WHICH PROVISION EXPRESSLY
DEALS WITH THE PAYMENT OF DIVIDENDS."  SUBDIVISION (C)(2) ALLOWED A
CREDIT WHERE "EARNINGS AND PROFITS OF THE TAXABLE YEAR  ...  (ARE)
REQUIRED (BY A PROVISION OF A WRITTEN CONTRACT EXECUTED BY THE
CORPORATION  ..., WHICH PROVISION EXPRESSLY DEALS WITH THE DISPOSITION
OF EARNINGS AND PROFITS OF THE TAXABLE YEAR) TO BE PAID WITHIN THE
TAXABLE YEAR IN DISCHARGE OF A DEBT, OR TO BE IRREVOCABLY SET ASIDE
WITHIN THE TAXABLE YEAR FOR THE DISCHARGE OF A DEBT."  PETITIONER
CLAIMED A CREDIT UNDER SEC. 26(C)(1), BUT IN ASSESSING THE DEFICIENCY
FOR 1937 THE COMMISSIONER REJECTED THIS CLAIM.  THE TAX COURT SUSTAINED
THE COMMISSIONER AND ITS JUDGMENT WAS AFFIRMED BY THE CIRCUIT COURT OF
APPEALS.  147 F.2D 972.  WE GRANTED CERTIORARI BECAUSE OF CONFLICTING
DETERMINATIONS BY THE CIRCUIT COURTS AS TO THE SCOPE OF THESE CREDIT
PROVISIONS.  FN2 

PETITIONER, A DELAWARE CORPORATION, ADMITS LIABILITY AS TRANSFEREE OF
THE ASSETS OF THE HERCULES GASOLINE COMPANY, INC., A LOUISIANA
CORPORATION, WHICH WAS DISSOLVED IN 1939.  ARTICLE V OF THE ORIGINAL
CHARTER OF THE TRANSFEROR AUTHORIZED THE ISSUANCE OF NON-PAR COMMON
STOCK AND OF PREFERRED STOCK AT $50 PAR VALUE.  THE PREFERRED STOCK WAS
ENTITLED "TO CUMULATIVE DIVIDENDS AT THE RATE OF 8% PER ANNUM  ...  IN
PREFERENCE AND PRIORITY TO ANY PAYMENT OF ANY DIVIDEND ON THE COMMON
STOCK FOR SUCH YEAR."  THE CHARTER FURTHER PROVIDED THAT "THERE SHALL
BE NO DIVIDEND ON THE COMMON STOCK UNTIL ALL OF THE PREFERRED STOCK HAS
BEEN RETIRED, REDEEMED AND DISCHARGED."  ALL CERTIFICATES OF PREFERRED
STOCK CONTAINED THE FOLLOWING PROVISION:  "FOR RIGHTS AND VOTING POWERS
OF PREFERRED STOCK SEE ARTICLE V OF CHARTER."  THE PETITIONER CONTENDS
THAT THESE PREFERRED STOCK CERTIFICATES CONSTITUTED CONTRACTS EXECUTED
BY THE CORPORATION WHICH EXPRESSLY PROHIBITED THE PAYMENT OF DIVIDENDS
WHILE THESE SHARES WERE OUTSTANDING AND THAT PETITIONER IS THEREFORE
ENTITLED TO THE CREDIT ALLOWED UNDER SUBDIVISION (C)(1). 

WE THINK THAT THE PREFERRED STOCK CERTIFICATES ARE NOT THE KIND OF
CONTRACTS WHICH ENTITLE A CORPORATION TO ALLOWANCE OF CREDIT UNDER
SUBDIVISION (C)(1).  IN OUR VIEW, THAT SUBDIVISION MUST BE READ IN THE
LIGHT OF SEC. 26(C) AND THE ACT AS A WHOLE AND, WHEN THUS READ, IS
CONFINED TO CONTRACTS MADE WITH CREDITORS AND DOES NOT EXTEND TO
RESTRICTIONS IMPOSED WITHIN THE BODY CORPORATE.  IN HELVERING V.
NORTHWEST STEEL MILLS, 311 U.S. 46, THE QUESTION BEFORE US WAS WHETHER
SEC. 26(C)(1) ALLOWS A CREDIT WHERE THE PAYMENT OF DIVIDENDS IS
PROHIBITED BY STATUTE.  IN CONSTRUING SEC. 26(C), WE STATED: 

"THAT THE LANGUAGE USED IN SEC. 26(C)(1) DOES NOT AUTHORIZE A CREDIT
FOR STATUTORILY PROHIBITED DIVIDENDS IS FURTHER SUPPORTED BY A
CONSIDERATION OF SEC. 26(C)(2).  BY THIS SECTION, A CREDIT IS ALLOWED
TO CORPORATIONS CONTRACTUALLY OBLIGATED TO SET EARNINGS ASIDE FOR THE
PAYMENT OF DEBTS.  THAT THIS SECTION REFERRED TO ROUTINE CONTRACTS
DEALING WITH ORDINARY DEBTS AND NOT TO STATUTORY OBLIGATIONS IS OBVIOUS
- YET THE WORDS USED TO INDICATE THAT THE SECTION HAD REFERENCE ONLY TO
A 'WRITTEN CONTRACT EXECUTED BY THE CORPORATION' ARE IDENTICAL WITH
THOSE USED IN SEC. 26(C)(1).  THERE IS NO REASON TO BELIEVE THAT
CONGRESS INTENDED THAT A BROADER MEANING BE ATTACHED TO THESE WORDS AS
USED IN SEC. 26(C)(1) THAN ATTACHED TO THEM UNDER THE NECESSARY
LIMITATIONS OF 26(C)(2)."  311 U.S. 46, AT 49-50. 

WE THUS HELD THAT SEC. 26(C)(1) IS LIMITED TO CONTRACTS INVOLVING
ORDINARY OBLIGATIONS TO CREDITORS AND SINCE PREFERRED STOCKHOLDERS ARE
NOT CREDITORS, WARREN V. KING, 108 U.S. 389, 399, SEC. 26(C)(1) DOES
NOT APPLY HERE. 

PETITIONER CONTENDS, HOWEVER, THAT OUR CONSTRUCTION OF SEC. 26(C)(1)
WAS ERRONEOUS BUT FOR REASONS GIVEN IN THE NORTHWEST STEEL CASE WE
THINK IT WAS CORRECT AND ADHERE TO IT.  OUR CONSTRUCTION FINDS FURTHER
SUPPORT IN SEC. 26(C)(3) WHICH, IN ORDER TO PREVENT "DOUBLE CREDIT,"
PROVIDES THAT IN THE EVENT BOTH SUBDIVISIONS (C)(1) AND (C)(2) APPLY,
"THE ONE OF SUCH PARAGRAPHS WHICH ALLOWS THE GREATER CREDIT SHALL BE
APPLIED; AND, IF THE CREDIT ALLOWABLE UNDER EACH PARAGRAPH IS THE SAME,
ONLY ONE OF SUCH PARAGRAPHS SHALL BE APPLIED."  CONGRESS HAVING THUS
MADE THE RELIEF OBTAINABLE UNDER (C)(1) AND (C)(2) MUTUALLY EXCLUSIVE
HAS INDICATED THAT IT CONSIDERED THE TWO SUBDIVISIONS AS
INTERDEPENDENT.  CONGRESS THEREFORE INTENDED TO COVER THE SAME TYPE OF
CONTRACT, NAMELY A CONTRACT WITH CREDITORS, IN BOTH SUBSECTIONS AND NOT
TO EXTEND SUBDIVISION (C)(1) TO INTRA-CORPORATE CONTRACTS WHILE
SUBDIVISION (C)(2) WAS TO COVER CONTRACTS WITH CREDITORS ONLY. 
MOREOVER, STATEMENTS MADE IN THE COURSE OF THE CONGRESSIONAL DEBATE
FN3  REFER TO SEC. 26(C) AS A WHOLE, AS PROVIDING FOR THE RELIEF OF
CORPORATIONS PREVENTED FROM PAYING DIVIDENDS BY CONTRACTS INVOLVING THE
PAYMENT OF DEBTS.  NO OTHER VIEW OF THE SECTION WOULD BE IN KEEPING
WITH THE POLICY BEHIND THE UNDISTRIBUTED PROFITS TAX.  THAT TAX WAS
DESIGNED TO REACH PROFITS HELD BY THE CORPORATION WHICH AS A
CONSEQUENCE COULD NOT BE TAXED AS DIVIDENDS IN THE HANDS OF
STOCKHOLDERS.  AN INTRA-CORPORATE AGREEMENT IS SIMPLY ONE WAY OF
KEEPING PROFITS IN THE CORPORATION'S TREASURY SO THAT THE TAX COLLECTOR
CANNOT REACH THEM.  FN4  TO HOLD THAT SUCH AN AGREEMENT ENTITLED THE
CORPORATION TO TAX CREDIT WOULD DEFEAT THE VERY PURPOSE OF THE
UNDISTRIBUTED PROFITS TAX.  FN5  THE REJECTION OF PETITIONER'S CLAIM
FOR TAX CREDIT WAS PROPER.  AFFIRMED. 

FN1  "SEC.  26.  CREDITS OF CORPORATIONS. 

IN THE CASE OF A CORPORATION THE FOLLOWING CREDITS SHALL BE ALLOWED
TO THE EXTENT PROVIDED IN THE VARIOUS SECTIONS IMPOSING TAX - 

     .         .         .         . . 

(C)  CONTRACTS RESTRICTING PAYMENT OF DIVIDENDS.  - 

(1)  PROHIBITION ON PAYMENT OF DIVIDENDS.  - AN AMOUNT EQUAL TO THE
EXCESS OF THE ADJUSTED NET INCOME OVER THE AGGREGATE OF THE AMOUNTS
WHICH CAN BE DISTRIBUTED WITHIN THE TAXABLE YEAR AS DIVIDENDS WITHOUT
VIOLATING A PROVISION OF A WRITTEN CONTRACT EXECUTED BY THE CORPORATION
PRIOR TO MAY 1, 1936, WHICH PROVISION EXPRESSLY DEALS WITH THE PAYMENT
OF DIVIDENDS.  IF A CORPORATION WOULD BE ENTITLED TO A CREDIT UNDER
THIS PARAGRAPH BECAUSE OF A CONTRACT PROVISION AND ALSO TO ONE OR MORE
CREDITS BECAUSE OF OTHER CONTRACT PROVISIONS, ONLY THE LARGEST OF SUCH
CREDITS SHALL BE ALLOWED, AND FOR SUCH PURPOSE IF TWO OR MORE CREDITS
ARE EQUAL IN AMOUNT ONLY ONE SHALL BE TAKEN INTO ACCOUNT. 

(2)  DISPOSITION OF PROFITS OF TAXABLE YEAR.  - AN AMOUNT EQUAL TO
THE PORTION OF THE EARNINGS AND PROFITS OF THE TAXABLE YEAR WHICH IS
REQUIRED (BY A PROVISION OF A WRITTEN CONTRACT EXECUTED BY THE
CORPORATION PRIOR TO MAY 1, 1936, WHICH PROVISION EXPRESSLY DEALS WITH
THE DISPOSITION OF EARNINGS AND PROFITS OF THE TAXABLE YEAR) TO BE PAID
WITHIN THE TAXABLE YEAR IN DISCHARGE OF A DEBT, OR TO BE IRREVOCABLY
SET ASIDE WITHIN THE TAXABLE YEAR FOR THE DISCHARGE OF A DEBT; TO THE
EXTENT THAT SUCH AMOUNT HAS BEEN SO PAID OR SET ASIDE.  FOR THE
PURPOSES OF THIS PARAGRAPH, A REQUIREMENT TO PAY OR SET ASIDE AN AMOUNT
EQUAL TO A PERCENTAGE OF EARNINGS AND PROFITS SHALL BE CONSIDERED A
REQUIREMENT TO PAY OR SET ASIDE SUCH PERCENTAGE OF EARNINGS AND
PROFITS.  AS USED IN THIS PARAGRAPH, THE WORD 'DEBT' DOES NOT INCLUDE A
DEBT INCURRED AFTER APRIL 30, 1936. 

(3)  DOUBLE CREDIT NOT ALLOWED.  - IF BOTH PARAGRAPH (1) AND
PARAGRAPH (2) APPLY, THE ONE OF SUCH PARAGRAPHS WHICH ALLOWS THE
GREATER CREDIT SHALL BE APPLIED; AND, IF THE CREDIT ALLOWABLE UNDER
EACH PARAGRAPH IS THE SAME, ONLY ONE OF SUCH PARAGRAPHS SHALL BE
APPLIED." 

FN2  LEHIGH STRUCTURAL STEEL CO. V. COMMISSIONER, 127 F.2D 67;
PHILADELPHIA RECORD CO. V. COMMISSIONER, 145 F.2D 613. 

FN3  SEE FOR ILLUSTRATION THE STATEMENT BY THE HON. SAMUEL B. HILL,
80 CONG. REC. 6004. 

FN4  SEE WARREN TELEPHONE CO. V. COMMISSIONER, 128 F.2D 503, 506. 
HERE THERE WAS NOTHING IN THE AGREEMENT THAT ABSOLUTELY PROHIBITED THE
PAYMENT OF DIVIDENDS.  DURING 1937 AND 1938 TRANSFEROR HAD OUTSTANDING
1,294 SHARES OF PREFERRED STOCK OF A TOTAL PAR VALUE OF $64,700.  THESE
SHARES WERE ALL RETIRED IN 1939.  HAD THEY BEEN REDEEMED IN 1937 THERE
WOULD HAVE BEEN NOTHING IN THE AGREEMENT PREVENTING THE DISTRIBUTION OF
EARNINGS.  CONSEQUENTLY IT DOES NOT CLEARLY APPEAR THAT THERE WAS ANY
PROVISION IN THE AGREEMENTS ABSOLUTELY PROHIBITING THE PAYMENT OF
DIVIDENDS.  CF. DR. PEPPER BOTTLING CO. V. COMMISSIONER, 45 B.T.A. 540;
STALEY MANUFACTURING CO. V. COMMISSIONER, 46 B.T.A. 199, 205. 

FN5  THE BOARD OF TAX APPEALS AND LATER THE TAX COURT HAVE
CONSISTENTLY HELD THAT SEC. 26(C)(1) DOES NOT COVER THE TYPE OF
AGREEMENT HERE INVOLVED.  THIBAUT & WALKER CO. V. COMMISSIONER, 42
B.T.A. 29; ELJER CO. V. COMMISSIONER, DECIDED DEC. 4, 1941, 1941 P-H
B.T.A. MEMORANDUM DECISIONS, PAR. 41,533; BUDD INTERNATIONAL CORP. V.
COMMISSIONER, 45 B.T.A. 737; BISHOP & BABCOCK MANUFACTURING CO. V.
COMMISSIONER, 45 B.T.A. 776; PHILADELPHIA RECORD CO. V. COMMISSIONER,
DECIDED JANUARY 23, 1943, 1943 P-H T.C. MEMORANDUM DECISIONS, PAR.
43,038. 

MR. JUSTICE BURTON DISSENTS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, DISSENTING. 

ACCEPTING HELVERING V. NORTHWEST STEEL MILLS, 311 U.S. 46,
COMPLETELY, I AM UNABLE TO AGREE THAT THIS CONTRACT WITH PREFERRED
STOCKHOLDERS WAS OTHER THAN A "ROUTINE CONTRACT DEALING WITH ORDINARY
DEBTS."  CERTAINLY THIS IS NOT AN INSTANCE OF A "STATUTORY OBLIGATION,"
WHICH ARE THE WORDS USED IN THE NORTHWEST CASE TO DESCRIBE THE
ANTITHESIS OF THE CONTRACT COVERED.  "ROUTINE" AND "ORDINARY," AS USED
IN NORTHWEST, DO NOT IMPLY TO ME ANYTHING MORE THAN AN EXPRESS
CONTRACT, EXECUTED IN ACCORDANCE WITH SEC. 26(C)(1). 

THE EXEMPTION PROVISIONS OF SEC. 26(C) MAKE NO EXCEPTIONS BECAUSE THE
DEBT OF THE CORPORATION IS OWNED BY A STOCKHOLDER.  IF SUCH AN
EXCEPTION IS TO BE DEDUCED FROM THE PURPOSE BEHIND THE WORDS OF THE
THESE BECAUSE THEIR INTEREST IS LIKE THAT OF A CREDITOR.  AS I BELIEVE
THE STATUTORY REQUIREMENTS ARE MET, I SHOULD REVERSE.  FN1 

FN1  SEE IN ACCORD, LEHIGH STRUCTURAL STEEL CO. V. COMMISSIONER, 127
F.2D 67; BUDD INTERNATIONAL CORP. V. COMMISSIONER, 143 F.2D 784;
PHILADELPHIA RECORD CO. V. COMMISSIONER, 145 F.2D 613; REX-HANOVER
MILLS CO. V. UNITED STATES, 53 F.SUPP.  235.  SEE ELJER CO. V.
COMMISSIONER, 134 F.2D 251, 255. 

THE CHIEF JUSTICE JOINS IN THIS DISSENT. 
..END :
























FERNANDEZ V. WIENER, 326 U.S. 340 


NO. 58.  ARGUED NOVEMBER 5, 1945.  - DECIDED DECEMBER 10, 1945.  - 60
F.SUPP.  169, REVERSED. 


1.  UPON THE TERMINATION OF A LOUISIANA MARITAL COMMUNITY BY THE DEATH
OF THE HUSBAND, A FEDERAL ESTATE TAX, MEASURED BY THE VALUE OF THE
ENTIRE COMMUNITY PROPERTY, WAS LEVIED PURSUANT TO SEC. 811(E)(2) OF THE
INTERNAL REVENUE CODE AS AMENDED BY SEC. 402 OF THE REVENUE ACT OF
1942.  HELD THAT THE TAX DOES NOT INFRINGE ANY PROVISION OF THE FEDERAL
CONSTITUTION.  PP. 342, 362. 

(1)  THE STATUTE IS A REVENUE MEASURE ENACTED BY CONGRESS IN THE
EXERCISE OF THE FEDERAL POWER TO LAY AND COLLECT AN EXCISE.  P. 351. 

(2)  THE TAX DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  PP. 346, 357. 

(A)  THE POWER OF CONGRESS TO IMPOSE DEATH TAXES IS NOT LIMITED TO
THE TAXATION OF TRANSFERS AT DEATH, BUT EXTENDS TO THE CREATION,
EXERCISE, ACQUISITION, OR RELINQUISHMENT OF ANY POWER OR LEGAL
PRIVILEGE WHICH IS INCIDENT TO THE OWNERSHIP OF PROPERTY, WHEN ANY OF
THESE IS OCCASIONED BY DEATH.  P. 352. 

(B)  UPON THE TERMINATION OF A LOUISIANA MARITAL COMMUNITY BY THE
DEATH OF EITHER THE HUSBAND OR WIFE, THERE OCCURS, BY VIRTUE OF STATE
LAW, A REDISTRIBUTION OF POWERS AND RESTRICTIONS UPON POWER WITH
RESPECT TO THE ENTIRE COMMUNITY PROPERTY WHICH AFFORDS AN APPROPRIATE
OCCASION FOR THE LEVY OF AN EXCISE TAX MEASURED BY THE VALUE OF THE
ENTIRE COMMUNITY PROPERTY, ALTHOUGH FROM THE MOMENT THE COMMUNITY WAS
ESTABLISHED THE RESPECTIVE RIGHTS OF THE SPOUSES IN THE COMMUNITY WERE
IN EVERY SENSE "VESTED," AND IT WAS CERTAIN THAT THE CHANGES IN LEGAL
AND ECONOMIC RELATIONSHIPS TO PROPERTY WHICH OCCASION THE TAX WOULD
OCCUR.  P. 355. 

(C)  THE STATUTE IS NOT INVALID AS ARBITRARY AND CAPRICIOUS ALTHOUGH
IT TAXES TRANSFERS AT DEATH AND ALSO THE SHIFTING AT DEATH OF
PARTICULAR INCIDENTS OF PROPERTY.  P. 358. 

(D)  THE STATUTE IS AN EXCISE TAX UPON THE SHIFTING AT DEATH OF THE
INCIDENTS OF PROPERTY, REGARDLESS OF THEIR ORIGIN, AND DOES NOT DEPEND
FOR ITS OPERATION UPON ANY PRESUMPTION THAT THE ENTIRE COMMUNITY
PROPERTY IS OWNED OR ECONOMICALLY ATTRIBUTABLE TO THE SPOUSE FIRST TO
DIE.  P. 358. 

(3)  THE STATUTE DOES NOT CONTRAVENE THE REQUIREMENT OF ARTICLE I,
SEC. 8 OF THE CONSTITUTION THAT "EXCISES SHALL BE UNIFORM THROUGHOUT
THE UNITED STATES."  P. 359. 

(A)  THE UNIFORMITY COMMANDED BY THE CONSTITUTION IS GEOGRAPHICAL
UNIFORMITY, NOT UNIFORMITY OF INTRINSIC EQUALITY AND OPERATION.  P.
359. 

(B)  THE TAX ON COMMUNITY PROPERTY INTERESTS IS NOT LACKING IN
GEOGRAPHICAL UNIFORMITY BY REASON OF THE FACT THAT IN SOME STATES SUCH
INTERESTS ARE NOT FOUND.  A TAXING STATUTE DOES NOT FALL SHORT OF THE
PRESCRIBED UNIFORMITY BECAUSE ITS OPERATION AND INCIDENCE MAY BE
AFFECTED BY DIFFERENCES IN STATE LAWS.  P. 359. 

(C)  THE STATUTE IS NOT LACKING IN UNIFORMITY, EVEN THOUGH IT APPLIES
TO COMMUNITY PROPERTY INTERESTS AND NOT TO INTERESTS IN TENANCIES IN
COMMON AND LIMITED PARTNERSHIPS.  P. 360. 

(4)  THE TAX IMPOSED BY THE STATUTE, LAID UPON THE SHIFTING AT DEATH
OF SOME OF THE INCIDENTS OF PROPERTY, IS NOT A DIRECT TAX WHICH THE
CONSTITUTION REQUIRES TO BE APPORTIONED.  P. 361. 

(5)  THE TAX DOES NOT INVADE THE POWERS RESERVED TO THE STATES BY THE
TENTH AMENDMENT.  P. 362. 

(A)  THE TENTH AMENDMENT DOES NOT RESTRICT THE POWER DELEGATED TO THE
NATIONAL GOVERNMENT TO LAY AN EXCISE TAX QUA TAX.  P. 362. 

(B)  THE INCIDENTAL REGULATORY EFFECT OF THE TAX IS EMBRACED WITHIN
THE POWER TO LAY IT. P. 362. 

(C)  IT IS NOT WITHIN THE PROVINCE OF THE COURTS TO INQUIRE INTO THE
UNEXPRESSED PURPOSES OR MOTIVES WHICH MAY HAVE MOVED CONGRESS TO
EXERCISE A POWER CONSTITUTIONALLY CONFERRED UPON IT. P. 362. 

2.  ALSO INCLUDED IN THE DECEDENT'S GROSS ESTATE, PURSUANT TO SEC.
811(G)(4) OF THE CODE AS AMENDED BY SEC. 404 OF THE ACT, WERE THE
ENTIRE PROCEEDS OF INSURANCE POLICIES ON THE LIFE OF THE DECEDENT, ON
ALL OF WHICH POLICIES THE WIFE WAS NAMED BENEFICIARY, THE RIGHT TO
CHANGE THE NAME OF THE BENEFICIARY WAS RESERVED TO THE INSURED, AND
PREMIUMS WERE PAID FROM COMMUNITY FUNDS.  HELD THAT THE TAX AS SO
APPLIED IS CONSTITUTIONAL.  PP. 362-363. 

THE DEATH OF THE INSURED, SINCE IT ENDED HIS CONTROL OVER THE
DISPOSITION OF THE PROCEEDS AND GAVE HIS WIFE THE PRESENT ENJOYMENT OF
THEM, MAY CONSTITUTIONALLY BE MADE THE OCCASION FOR THE IMPOSITION OF
AN INDIRECT TAX MEASURED BY THE PROCEEDS THEMSELVES.  P. 363. 

FERNANDEZ, COLLECTOR OF INTERNAL REVENUE, V. WIENER ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF LOUISIANA. 

APPEAL UNDER SEC. 2 OF THE ACT OF AUGUST 24, 1937, FROM A JUDGMENT
FOR THE PLAINTIFFS IN A SUIT AGAINST THE COLLECTOR OF INTERNAL REVENUE
TO RECOVER AN ALLEGED OVERPAYMENT OF FEDERAL ESTATE TAX, THE DECISION
BEING AGAINST THE CONSTITUTIONALITY OF THE FEDERAL ESTATE TAX STATUTE
AS APPLIED. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE COMMISSIONER OF INTERNAL REVENUE, PROCEEDING UNDER
SEC. 811(E)(2) OF THE INTERNAL REVENUE CODE, 26 U.S.C. SEC. 811(E)(2),
AS AMENDED BY SEC. 402 OF THE REVENUE ACT OF 1942, 56 STAT. 798, HAS
LEVIED AN ESTATE TAX ON THE TERMINATION OF THE MARITAL COMMUNITY BY THE
DEATH OF THE HUSBAND, A DOMICILED RESIDENT OF LOUISIANA, THE TAX BEING
MEASURED BY THE VALUE OF THE ENTIRE COMMUNITY PROPERTY.  AND, ON THE
AUTHORITY OF SEC. 811(G)(4) OF THE CODE, 26 U.S.C. SEC. 811(G)(4), AS
AMENDED BY SEC. 404 OF THE SAME STATUTE, HE ALSO INCLUDED IN DECEDENT'S
GROSS ESTATE THE ENTIRE PROCEEDS OF INSURANCE POLICIES ON THE
DECEDENT'S LIFE. 

THE PRINCIPAL QUESTIONS FOR DECISION ARE (1) WHETHER THE POWER
ASSERTED BY THE STATUTE, TO TAX THE ENTIRE COMMUNITY INTEREST, IS
WITHIN THE TAXING POWER OF THE UNITED STATES; (2) WHETHER THE TAX
INFRINGES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT; (3) WHETHER
THE TAXING STATUTE CONTRAVENES THE COMMAND OF ARTICLE I, SEC. 8 OF THE
CONSTITUTION THAT "EXCISES SHALL BE UNIFORM THROUGHOUT THE UNITED
STATES"; (4) WHETHER THE TAX SO FAR AS IT IS MEASURED BY THE SURVIVING
WIFE'S SHARE OF THE COMMUNITY PROPERTY, IS A DIRECT TAX, INVALID
BECAUSE NOT APPORTIONED AS REQUIRED BY ARTICLE I, SEC. 8 OF THE
CONSTITUTION; AND (5) WHETHER THE TAX INVADES THE POWERS RESERVED TO
THE STATES BY THE TENTH AMENDMENT. 

APPELLEES, THE CHILDREN AND SOLE HEIRS OF DECEDENT, BROUGHT THIS SUIT
IN THE DISTRICT COURT FOR EASTERN LOUISIANA, TO RECOVER FROM APPELLANT,
THE COLLECTOR, AS AN ALLEGED OVERPAYMENT, SO MUCH OF THE ESTATE TAX
PAID AS IS ATTRIBUTABLE TO THE INCLUSION IN DECEDENT'S GROSS ESTATE OF
HIS WIFE'S SHARE OF THE COMMUNITY PROPERTY, AND OF ALL, RATHER THAN
HALF, OF THE INSURANCE MONEY.  THE DISTRICT COURT GAVE JUDGMENT FOR
APPELLEES, 60 F.SUPP.  169, HOLDING THAT THE STATUTE AS APPLIED
VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  THE CASE COMES
HERE ON DIRECT APPEAL FROM THE JUDGMENT OF THE DISTRICT COURT UNDER
SEC. 2 OF THE ACT OF AUGUST 24, 1937, 50 STAT. 751, 28 U.S.C. SEC.
349A, APPELLANT ASSIGNING AS ERROR THE LOWER COURT'S RULING THAT THE
STATUTE DENIED DUE PROCESS, AND THE COURT'S FAILURE TO SUSTAIN THE LEVY
AS A CONSTITUTIONAL EXERCISE OF THE FEDERAL TAXING POWER. 

THE FACTS AS FOUND BY THE DISTRICT COURT ARE NOT IN DISPUTE.  IN
1907, DECEDENT, A RESIDENT OF LOUISIANA, MARRIED A LOUISIANA RESIDENT
WITH WHOM HE LIVED IN THAT STATE UNTIL HIS DEATH, HIS WIFE SURVIVING. 
DURING THE MARRIAGE HE CARRIED ON IN LOUISIANA VARIOUS KINDS OF
BUSINESS.  WITH THE EXCEPTION OF CERTAIN REAL ESTATE LOCATED IN
MISSISSIPPI, ALL THE PROPERTY OF DECEDENT AT THE TIME OF HIS DEATH WAS
HELD IN OWNERSHIP BY THE MARITAL COMMUNITY WHICH EXISTED BETWEEN HIM
AND HIS WIFE.  AT NO TIME DURING THE EXISTENCE OF THE COMMUNITY WAS THE
WIFE GAINFULLY EMPLOYED OUTSIDE THE HOUSEHOLD, NOR DID SHE RECEIVE FROM
ANY ONE ANY SALARY OR OTHER COMPENSATION FOR PERSONAL SERVICES, NOR WAS
ANY PART OF THE COMMUNITY PROPERTY DERIVED FROM ANY SEPARATE PROPERTY
OF HER OWN.  DECEDENT, HAVING BY HIS WILL CONSTITUTED APPELLEES HIS
SOLE HEIRS, AND HAVING NO DEBTS OF CONSEQUENCE, NO ADMINISTRATION WAS
HAD ON HIS ESTATE, AND APPELLEES WERE BY JUDGMENT OF THE PROBATE COURT
PLACED IN POSSESSION OF ALL DECEDENT'S PROPERTY. 

APPELLEES FILED THE FEDERAL ESTATE TAX RETURN, IN WHICH THEY REPORTED
ONLY ONE-HALF OF THE NET VALUE OF THE COMMUNITY PROPERTY AS SUBJECT TO
THE TAX.  INCLUDED IN THE COMMUNITY PROPERTY, AND ALSO REPORTED TO THE
EXTENT OF ONLY ONE-HALF, WERE THE PROCEEDS OF FIFTEEN POLICIES OF
INSURANCE ON THE LIFE OF DECEDENT, ALL OF WHICH WERE (A) EFFECTED BY
DECEDENT DURING THE MARRIAGE, (B) NAMED THE WIFE AS BENEFICIARY, AND
(C) RESERVED THE RIGHT TO THE INSURED OF CHANGING THE BENEFICIARY.  ALL
OF THE PREMIUMS ON THESE POLICIES HAD BEEN PAID FROM COMMUNITY FUNDS. 
THE COMMISSIONER ASSESSED A DEFICIENCY IN ESTATE TAX BASED UPON
APPELLEES' FAILURE TO INCLUDE IN THE GROSS ESTATE, SUBJECT TO TAX, THE
ENTIRE VALUE OF ALL THE COMMUNITY PROPERTY, AND THE PROCEEDS OF THE
FIFTEEN INSURANCE POLICIES.  APPELLEES PAID THE DEFICIENCY AND,
FOLLOWING REJECTION OF THEIR CLAIM FOR REFUND, BROUGHT THE PRESENT SUIT
TO RECOVER THE AMOUNT OF THE DEFICIENCY PAYMENT WHICH HAS RESULTED IN
THE JUDGMENT IN THEIR FAVOR. 

INTERNAL REVENUE CODE, 26 U.S.C. SEC. 811(E), SO AS TO INCLUDE IN THE
GROSS ESTATE OF DECEDENT, SUBJECT TO THE ESTATE TAX: 

"(2)  COMMUNITY INTERESTS.  - TO THE EXTENT OF THE INTEREST THEREIN
HELD AS COMMUNITY PROPERTY BY THE DECEDENT AND SURVIVING SPOUSE UNDER
THE LAW OF ANY STATE  ...  OF THE UNITED STATES,  ... EXCEPT SUCH PART
THEREOF AS MAY BE SHOWN TO HAVE BEEN RECEIVED AS COMPENSATION FOR
PERSONAL SERVICES ACTUALLY RENDERED BY THE SURVIVING SPOUSE OR DERIVED
ORIGINALLY FROM SUCH COMPENSATION OR FROM SEPARATE PROPERTY OF THE
SURVIVING SPOUSE.  IN NO CASE SHALL SUCH INTEREST INCLUDED IN THE GROSS
ESTATE OF THE DECEDENT BE LESS THAN THE VALUE OF SUCH PART OF THE
COMMUNITY PROPERTY AS WAS SUBJECT TO THE DECEDENT'S POWER OF
TESTAMENTARY DISPOSITION."  FN1 

THE REVENUE LAWS MAKE NO PROVISION FOR THE DISTRIBUTION OF THE BURDEN
OF THE TAX BEYOND PROVIDING THAT THE TAX SHALL BE A LIEN ON ALL OF THE
PROPERTY INCLUDED IN THE DECEDENT'S GROSS ESTATE.  SEC. 827(A) I.R.C.,
26 U.S.C. SEC. 827(A).  SEE DETROIT BANK V. UNITED STATES, 317 U.S.
329, 331-333.  SECTION 826(B) OF THE I.R.C. CONTEMPLATES THAT THE TAX
"BE PAID OUT OF THE TAXABLE ESTATE BEFORE ITS DISTRIBUTION," UNLESS
OTHERWISE DIRECTED BY DECEDENT'S WILL.  ALTHOUGH THE SHARE OF THE
SURVIVING SPOUSE IS SUBJECT TO THE LIEN AND THE TAX MUST BE PAID OUT OF
THE ESTATE AS A WHOLE, THE FEDERAL STATUTE LEAVES IT TO THE STATES TO
DETERMINE HOW THE TAX BURDEN SHALL BE DISTRIBUTED AMONG THOSE WHO SHARE
IN THE TAXED ESTATE.  SEE RIGGS V. DEL DRAGO, 317 U.S. 95. 

APPELLEES' ARGUMENT IS IN SUBSTANCE THAT THE NATURE OF COMMUNITY
PROPERTY IS SUCH THAT HUSBAND AND WIFE EACH HAS, BY VIRTUE OF THE
ESTABLISHMENT OF THEIR MARITAL COMMUNITY, AND FROM ITS BEGINNING, A
PRESENT HALF INTEREST IN SUCH PROPERTY; THAT THE DEATH OF EITHER
EFFECTS NO TRANSFER OR RELINQUISHMENT OF ANY INTEREST IN THE PROPERTY
OTHER THAN THAT OF THE HALF SHARE WHICH THE DECEDENT HAD BEFORE HIS
DEATH; AND THAT THE SURVIVOR IN CONSEQUENCE OF THE DEATH OF THE OTHER
SPOUSE ACQUIRES NO NEW OR DIFFERENT INTEREST IN THE PROPERTY, BUT ONLY
RETAINS THE HALF SHARE HE OR SHE HAD PRIOR TO THE DEATH OF THE OTHER
SPOUSE.  FROM THIS APPELLEES CONCLUDE THAT THE DEATH OF EITHER SPOUSE
IS NOT AN EVENT WHICH IN ANY CASE CAN BRING MORE THAN ONE-HALF OF THE
COMMUNITY PROPERTY WITHIN THE REACH OF THE POWER TO "LAY AND COLLECT
...  IMPOSTS AND EXCISES" CONFERRED ON CONGRESS BY ARTICLE I, SEC. 8 OF
THE CONSTITUTION, AND THAT THE PRESENT AMENDMENT TAXING THE ENTIRE
VALUE OF THE COMMUNITY PROPERTY ON THE DEATH OF EITHER SPOUSE IS A
DENIAL OF DUE PROCESS BECAUSE THE DEATH OF NEITHER OPERATES TO
TRANSFER, RELINQUISH OR ENLARGE ANY LEGAL OR ECONOMIC INTEREST IN THE
PROPERTY OF THE OTHER SPOUSE.  HENCE IT IS SAID THAT THE STATUTE
INFRINGES DUE PROCESS BY ADDING TO THE CONCEDEDLY VALID TAX ON THE
DECEDENT'S HALF SHARE A FURTHER TAX MEASURED BY THE ONE-HALF INTEREST
OF THE SURVIVING SPOUSE.  FURTHER, IT IS URGED IN SUPPORT OF THE DUE
PROCESS CONTENTION, THAT THE STATUTE ARBITRARILY AND CAPRICIOUSLY
INVENTS DIFFERENT RULES OF TAXATION WHOSE ALTERNATIVE APPLICATION IS
GOVERNED BY A SINGLE CONSIDERATION, NAMELY, WHICH WILL YIELD THE
GREATER TAX; AND THAT THE STATUTE CREATES A PRESUMPTION CONTRARY TO
STATE LAW, AND HAVING NO RATIONAL BASIS IN FACT, THAT THE ENTIRE
COMMUNITY IS OWNED OR ECONOMICALLY ATTRIBUTABLE TO THE SPOUSE FIRST TO
DIE.  IT IS ALSO ARGUED THAT EVEN IF CONGRESS COULD VALIDLY IMPOSE THE
TAX WHERE, AS HERE, THE HUSBAND IS FIRST TO DIE, THERE IS NO BASIS FOR
THE TAX WHERE THE WIFE DIES FIRST, AND THAT SINCE THE STATUTE PURPORTS
TO APPLY IN EITHER CASE, AND IS NOT SEPARABLE, IT CANNOT BE VALIDLY
APPLIED IN THIS. 

IT IS ALSO CONTENDED THAT THE TAX IS NOT UNIFORM AS REQUIRED BY
ARTICLE I, SEC. 8, CLAUSE 1 OF THE CONSTITUTION, BECAUSE THE JOINT
INTERESTS OF HUSBAND AND WIFE IN COMMUNITY PROPERTY STATES ARE TAXED
ACCORDING TO A DIFFERENT AND MORE ONEROUS STANDARD THAN IS APPLIED TO
COMPARABLE JOINT INTERESTS, AND SPECIFICALLY TO TENANCIES IN COMMON AND
LIMITED PARTNERSHIPS, CREATED UNDER THE LAWS OF OTHER STATES IN WHICH
THE PRESUMPTION IS NOT APPLIED; AND BECAUSE THE STATUTE DISREGARDS FOR
PURPOSES OF TAXATION THE PROPERTY LAWS OF THE COMMUNITY PROPERTY
STATES, WHILE RECOGNIZING THE PROPERTY LAWS OF OTHER STATES FOR THOSE
PURPOSES. 

IT IS SAID TOO THAT THE LEVY IS A DIRECT TAX, INVALID BECAUSE NOT
APPORTIONED (ARTICLE I, SEC. 9, CLAUSE 4 OF THE CONSTITUTION), INSOFAR
AS IT CONTEMPLATES COLLECTION OF PART OF THE TAX OUT OF THE WIFE'S HALF
OF THE COMMUNITY PROPERTY, SINCE, IT IS SAID, THERE IS NO EXCISABLE
EVENT TOUCHING HER PROPERTY ON HER HUSBAND'S DEATH AND THE TAX
COLLECTED BUT OF HER PROPERTY IS IN EFFECT A DIRECT TAX UPON IT.  AND
FINALLY THE TAX IS SAID TO INVADE THE POWERS RESERVED TO THE STATES BY
THE TENTH AMENDMENT, TO DETERMINE PROPERTY RELATIONSHIPS WITHIN THEIR
BORDERS. 

THE MERITS OF THESE CONTENTIONS CANNOT BE ACCURATELY APPRAISED
WITHOUT SOME INQUIRY AS TO THE NATURE OF RESPECTIVE SPOUSES' COMMUNITY
PROPERTY INTERESTS AS DEFINED BY LOUISIANA LAW.  WE HAVE HAD OCCASION
IN SEVERAL EARLIER CASES TO MAKE SOME EXAMINATION OF THE LAWS GOVERNING
THE INTERESTS OF THE SPOUSES IN COMMUNITY PROPERTY STATES.  SEE E.G.,
MOFFITT V. KELLY, 218 U.S. 400; POE V. SEABORN, 282 U.S. 101; BENDER V.
PFAFF, 282 U.S. 127; COMMISSIONER V. HARMON, 323 U.S. 44.  COUNSEL FOR
APPELLEES CONCEDE THAT THE OPINION IN BENDER V. PFAFF, SUPRA, SO FAR AS
IT GOES, CORRECTLY DEFINES THE SEVERAL INTERESTS OF THE SPOUSES IN
LOUISIANA COMMUNITY PROPERTY.  TO THAT WE NOW ADD A MORE DETAILED
STATEMENT SO FAR AS IT MAY BE RELEVANT TO THE DECISION OF THE PRESENT
CASE. 

BY THE LAW OF LOUISIANA, EVERY MARITAL STATUS SUBJECT TO THE LAWS OF
THE STATE SUPERINDUCES A PARTNERSHIP OR COMMUNITY OF THE SPOUSES WITH
RESPECT TO PROPERTY IN THE STATE ACQUIRED DURING THE LIFE OF THE
COMMUNITY, UNLESS THERE BE AT THE TIME OF THE MARRIAGE A STIPULATION TO
THE CONTRARY.  FN2  ALL EARNINGS AND ALL PROPERTY ACQUIRED BY THE
HUSBAND OR WIFE DURING THE LIFE OF THE COMMUNITY BECOME COMMUNITY
PROPERTY, WITH CERTAIN LIMITED EXCEPTIONS NOT HERE INVOLVED, AND WHICH
NEED NOT BE DETAILED FURTHER THAN TO SAY THAT THE SPOUSES CAN ACQUIRE
SOME SEPARATE PROPERTY DURING MARRIAGE.  FN3  IT IS SAID THAT ALL
PROPERTY ACQUIRED BY THE SPOUSES DURING THE MARRIAGE WHICH FALLS INTO
THE COMMUNITY IS "DUE TO THE JOINT OR COMMON EFFORTS, LABOR, INDUSTRY,
ECONOMY, AND SACRIFICES OF THE HUSBAND AND WIFE," AND THAT FOR THIS
REASON THE HUSBAND AND WIFE EACH HAS AT ALL TIMES AN EQUAL PRESENT
INTEREST IN AN UNDIVIDED HALF OF THE WHOLE COMMUNITY.  FN4  THE
MANAGEMENT OF THE COMMUNITY IS ENTRUSTED TO THE EXCLUSIVE CONTROL OF
THE HUSBAND,  FN5  AND HE MAY DEAL WITH AND DISPOSE OF COMMUNITY
PROPERTY WITH NO LIABILITY TO ACCOUNT TO THE WIFE SO LONG AS THE
COMMUNITY CONTINUES.  FN6  THE RULE IS, HOWEVER, THAT THE HUSBAND MAY
NOT GIVE AWAY ANY OF THE IMMOVABLES, NOR A QUOTA OF THE MOVABLES, NOR
MAY BE FRAUDULENTLY MAKE ANY ALIENATION OF PROPERTY "TO INJURE HIS
WIFE."  FN7 

SO LONG AS THE COMMUNITY CONTINUES, THE WIFE HAS NO CONTROL OVER
COMMUNITY PROPERTY.  SHE MAY NOT GIVE IT AWAY, NO SELL IT, AND IN
GENERAL, MAY NOT BIND IT FOR THE PAYMENT OF HER DEBTS.  FN8 BUT UPON
THE TERMINATION OF THE COMMUNITY,  FN9  SHE, HER HEIRS, OR OTHER
DESIGNEES RECEIVE IN FULL POSSESSION AND ENJOYMENT ONE-HALF IN VALUE OF
THE TOTAL COMMUNITY ASSETS SUBJECT TO THE PAYMENT OF COMMUNITY DEBTS. 
FN10  THIS RIGHT SO TO RECEIVE ONE-HALF IS INDEFEASIBLE, AND IF SHE DIE
FIRST, HER HEIRS OR LEGATEES TAKE HER HALF-SHARE TO THE EXCLUSION OF
THE HUSBAND; IF THE HUSBAND DIE FIRST, HIS HALF PASSES TO HIS HEIRS OR
AS HE HAD DIRECTED, AND THE OTHER HALF IS THE WIFE'S.  FN11 

EXAMINATION OF THE LEGISLATIVE HISTORY OF THE CHALLENGED STATUTE, AS
DISCLOSED BY THE COMMITTEE HEARINGS AND REPORTS AND THE CONGRESSIONAL
DEBATES, CAN LEAVE NO DOUBT THAT THE PURPOSE OF CONGRESS IN ENACTING IT
WAS THE ELIMINATION OF WHAT WAS BELIEVED TO BE AN UNEQUAL DISTRIBUTION
OF THE TAX BURDENS OF ESTATE TAXES WHICH LED CONGRESS TO APPLY TO
COMMUNITY PROPERTY THE PRINCIPLES OF DEATH TAXES WHICH IT HAD ALREADY
APPLIED TO OTHER FORMS OF JOINT OWNERSHIP, ON THE DEATH OF EITHER OF
THE JOINT OWNERS.  THE REPORT OF THE HOUSE COMMITTEE RECOMMENDING THE
ADOPTION OF THE AMENDMENT TO SEC. 811 OF THE INTERNAL REVENUE CODE
POINTED OUT THE PREFERENTIAL TREATMENT ACCORDED BY THE FEDERAL ESTATE
TAX LAWS TO COMMUNITY PROPERTY.  H. REP. NO. 2333, 77TH CONG., 2D
SESS., PP. 35 TO 37, 160.  FN12    THERE IS NO DISPUTE AS TO THE
CONSTRUCTION OR OPERATION OF THE PROVISIONS OF THE STATUTE.  APPELLEES
DO NOT DENY THAT THE COMMISSIONER CORRECTLY APPLIED THE STATUTE AND
CORRECTLY COMPUTED THE TAX IF THE STATUTE IS VALID.  HERE, AS WILL
PRESENTLY APPEAR, THERE IS NO BASIS FOR SAYING THAT THE STATUTE, EITHER
IN ITS PURPOSE OR IN ITS PRACTICAL EFFECT, OPERATES TO REGULATE MATTERS
WHOSE REGULATION THE CONSTITUTION RESERVED TO THE STATES.  IT IS A
REVENUE MEASURE ENACTED IN THE EXERCISE OF THE FEDERAL POWER TO LAY AND
COLLECT AN EXCISE.  CONGRESS HAS A WIDE LATITUDE IN THE SELECTION OF
OBJECTS OF TAXATION, BRUSHABER V. UNION PACIFIC R. CO., 240 U.S. 1, 12;
STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 581, AND EVEN UNDER THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, WHICH WAS NOT
INCLUDED IN THE FIFTH, THE STATES MAY DISTINGUISH, FOR PURPOSES OF
TRANSFER TAXES, BETWEEN PROPERTY WHICH HAS BORNE ITS FAIR SHARE OF THE
TAX BURDENS AND SIMILAR OR LIKE PROPERTY PASSING TO THE SAME CLASS OF
BENEFICIARIES WHICH HAS NOT.  WATSON V. STATE COMPTROLLER, 254 U.S.
122.  HENCE WE ARE CONCERNED ONLY WITH THE POWER OF CONGRESS TO ENACT
THE TAX. 

IT IS TRUE THAT THE ESTATE TAX AS ORIGINALLY DEVISED AND
CONSTITUTIONALLY SUPPORTED WAS A TAX UPON TRANSFERS.  KNOWLTON V.
MOORE, 178 U.S. 41; Y.M.C.A. V. DAVIS, 264 U.S. 47, 50.  BUT THE POWER
OF CONGRESS TO IMPOSE DEATH TAXES IS NOT LIMITED TO THE TAXATION OF
TRANSFERS AT DEATH.  IT EXTENDS TO THE CREATION, EXERCISE, ACQUISITION,
OR RELINQUISHMENT OF ANY POWER OR LEGAL PRIVILEGE WHICH IS INCIDENT TO
THE OWNERSHIP OF PROPERTY, AND WHEN ANY OF THESE IS OCCASIONED BY
DEATH, IT MAY AS READILY BE THE SUBJECT OF THE FEDERAL TAX AS THE
TRANSFER OF THE PROPERTY AT DEATH.  SEE BROMLEY V. MCCAUGHN, 280 U.S.
124, 135, ET SEQ. 

CONGRESS MAY TAX REAL ESTATE OR CHATTELS IF THE TAX IS APPORTIONED,
AND WITHOUT APPORTIONMENT IT MAY LAY AN EXCISE UPON A PARTICULAR USE OR
ENJOYMENT OF PROPERTY OR THE SHIFTING FROM ONE TO ANOTHER OF ANY POWER
OR PRIVILEGE INCIDENTAL TO THE OWNERSHIP OR ENJOYMENT OF PROPERTY. 
BROMLEY V. MCCAUGHN, SUPRA; BURNET V. WELLS, 289 U.S. 670, 678; CF.
NASHVILLE, C. & ST. L.R. CO. V. WALLACE, 288 U.S. 249, 267-8; HENNEFORD
V. SILAS MASON CO., 300 U.S. 577, 582.  THE POWER TO TAX THE WHOLE
NECESSARILY EMBRACES THE POWER TO TAX ANY OF ITS INCIDENTS OR THE USE
OR ENJOYMENT OF THEM.  IF THE PROPERTY ITSELF MAY CONSTITUTIONALLY BE
TAXED, OBVIOUSLY IT IS COMPETENT TO TAX THE USE OF IT, HYLTON V. UNITED
STATES, 3 DALL.  171; BILLINGS V. UNITED STATES, 232 U.S. 261, OR THE
SALE OF IT, NICOL V. AMES, 173 U.S. 509; THOMAS V. UNITED STATES, 192
U.S. 363, 370, OR THE GIFT OF IT, BROMLEY V. MCCAUGHN, SUPRA.  IT MAY
TAX THE EXERCISE, NON-EXERCISE, OR RELINQUISHMENT OF A POWER OF
DISPOSITION OF PROPERTY, WHERE OTHER IMPORTANT INDICIA OF OWNERSHIP ARE
LACKING.  SALTONSTALL V. SALTONSTALL, 276 U.S. 260; CHASE NATIONAL BANK
V. UNITED STATES, 278 U.S. 327; ESTATE OF ROGERS V. COMMISSIONER, 320
U.S. 410; CF. GRAVES V. SCHMIDLAPP, 315 U.S. 657 WITH SEC. 811(D)(F) OF
THE INTERNAL REVENUE CODE, 26 U.S.C. SEC. 811(D)(F). 

IF THE GIFT OF PROPERTY MAY BE TAXED, WE CANNOT SAY THAT THERE IS ANY
WANT OF CONSTITUTIONAL POWER TO TAX THE RECEIPT OF IT, WHETHER AS THE
RESULT OF INHERITANCE, STEBBINS V. RILEY, 268 U.S. 137, OR OTHERWISE,
WHATEVER NAME MAY BE GIVEN TO THE TAX, AND EVEN THOUGH THE RIGHT TO
RECEIVE IT, AS DISTINGUISHED FROM ITS ACTUAL RECEIPT AND POSSESSION AT
A FUTURE DATE, ANTEDATED THE STATUTE.  RECEIPT IN POSSESSION AND
ENJOYMENT IS AS MUCH A TAXABLE OCCASION WITHIN THE REACH OF THE FEDERAL
TAXING POWER AS THE ENJOYMENT OF ANY OTHER INCIDENT OF PROPERTY.  THE
TAKING OF POSSESSION OF INHERITED PROPERTY IS ONE OF THE MOST ANCIENT
SUBJECTS OF TAXATION KNOWN TO THE LAW.  SUCH TAXES EXISTED ON THE
EUROPEAN CONTINENT AND IN ENGLAND PRIOR TO THE ADOPTION OF OUR
CONSTITUTION.  FN13 

IT IS UPON THESE PRINCIPLES THAT THIS COURT HAS CONSISTENTLY
SUSTAINED THE APPLICATION OF ESTATE TAXES UPON THE DEATH OF ONE OF THE
JOINT OWNERS TO PROPERTY HELD IN JOINT OWNERSHIP, MEASURED BY THE FULL
VALUE OF THE PROPERTY SO HELD.  WE UPHELD A LIKE TAX WHEN APPLIED TO
TENANCIES BY THE ENTIRETY IN TYLER V. UNITED STATES, 281 U.S. 497;
THIRD NATIONAL BANK & TRUST CO. V. WHITE, 287 U.S. 577, AND TO PROPERTY
HELD IN JOINT TENANCY IN UNITED STATES V. JACOBS AND DIMOCK V. CORWIN
(COMPANION CASES), 306 U.S. 363. 

DECISION IN THESE CASES WAS NOT RESTED, AS APPELLEES ARGUE, ON THE
GROUND THAT THE TAX WAS IMPOSED ON A GIFT MADE BY THE HUSBAND, WHO HAD
CREATED THE TENANCY, VIEWED AS A SUBSTITUTE FOR A TESTAMENTARY
TRANSFER, OR ON ANY EVENT WHICH ANTEDATED THE DEATH OF ONE OF THE JOINT
OWNERS.  INSTEAD, AS WE SAID IN WHITNEY V. TAX COMMISSION, 309 U.S.
530, 539, "THE EMPHASIS IN THESE CASES WAS ON THE PRACTICAL EFFECT OF
DEATH IN BRINGING ABOUT A SHIFT IN ECONOMIC INTEREST, AND THE POWER OF
THE LEGISLATURE TO FASTEN ON THAT SHIFT AS THE OCCASION FOR A TAX."  WE
POINTED OUT IN TYLER V. UNITED STATES, SUPRA, 503, 504, THAT THE USE,
POSSESSION AND ENJOYMENT OF THE JOINT PROPERTY WHICH WAS JOINT BEFORE
THE DEATH WAS THEREBY MADE EXCLUSIVE IN THE SURVIVOR, AND THUS
CONSTITUTED A "DEFINITE ACCESSION TO THE PROPERTY RIGHTS" OF THE
SURVIVOR.  THESE CIRCUMSTANCES WERE THOUGHT SUFFICIENT TO MAKE VALID
THE INCLUSION OF THE PROPERTY IN THE GROSS ESTATE WHICH FORMS THE
PRIMARY BASIS FOR THE MEASUREMENT OF THE TAX.  AND IN UNITED STATES V.
JACOBS, SUPRA, THIS COURT SUSTAINED THE TAX, ASSAILED ON DUE PROCESS
GROUNDS, WHEN APPLIED TO A JOINT TENANCY CREATED BEFORE THE ENACTMENT
OF THE TAXING STATUTE.  WE SAID, 306 U.S. AT 371, THAT THE SUBJECT OF
THE TAX WAS NOT THE GIFT TO THE WIFE MADE BY THE HUSBAND'S CREATION OF
THE JOINT TENANCY FOR HIMSELF AND WIFE, BUT THE CHANGE IN POSSESSION
AND ENJOYMENT OF THE ENTIRE PROPERTY, OCCASIONED BY THE DEATH OF ONE OF
THE JOINT TENANTS, AND THAT THE TAX WAS APPROPRIATELY MEASURED BY THE
VALUE OF THE ENTIRE PROPERTY.  "UNDER THE STATUTE THE DEATH OF DECEDENT
IS THE EVENT IN RESPECT OF WHICH THE TAX IS LAID.  IT IS THE EXISTENCE
OF THE JOINT TENANCY AT THE TIME, AND NOT ITS CREATION AT THE EARLIER
DATE, WHICH FURNISHES THE BASIS FOR THE TAX."  GRISWOLD V. HELVERING,
290 U.S. 56, 58.  COMPARE SALTONSTALL V. SALTONSTALL, SUPRA, 271. 

SIMILARLY, A TAX UPON THE TERMINATION BY DEATH OF A POWER TO DISPOSE
OF PROPERTY, CREATED BEFORE THE ENACTMENT OF THE TAX STATUTE, DOES NOT
OFFEND DUE PROCESS, REINECKE V. NORTHERN TRUST CO., 278 U.S. 339, NOR
DOES A TAX UPON THE RECEIPT OF INCOME WHICH WAS EARNED AND DUE BEFORE
THE ENACTMENT OF THE TAXING STATUTE.  BRUSHABER V. UNION PACIFIC R.
CO., SUPRA, 20; LYNCH V. HORNBY, 247 U.S. 339, 343; TAFT V. BOWERS, 278
U.S. 470, 483, 484; COOPER V. UNITED STATES, 280 U.S. 409, 411.  IT IS
THE RECEIPT IN POSSESSION OR ENJOYMENT OF THE PROCEEDS OF A RIGHT
PREVIOUSLY ACQUIRED AND VESTED UPON WHICH THE TAX IS LAID.  SUCH WAS
DEEMED TO BE THE TAXABLE EVENT UNDER OUR EARLIER DEATH TAXES.  CLAPP V.
MASON, 94 U.S. 589; VANDERBILT V. EIDMAN, 196 U.S. 480.  AND SEE
MOFFITT V. KELLY, SUPRA. 

WITH THESE GENERAL PRINCIPLES IN MIND, WE TURN TO THEIR APPLICATION
TO FEDERAL DEATH TAXES LAID WITH RESPECT TO THE INTERESTS IN COMMUNITY
PROPERTY.  AS WE HAVE SEEN, THE DEATH OF THE HUSBAND OF THE LOUISIANA
MARITAL COMMUNITY NOT ONLY OPERATES TO TRANSFER HIS RIGHTS IN HIS SHARE
OF THE COMMUNITY TO HIS HEIRS OR THOSE TAKING UNDER HIS WILL.  IT
TERMINATES HIS EXPANSIVE AND SOMETIMES PROFITABLE CONTROL OVER THE
WIFE'S SHARE, AND FOR THE FIRST TIME BRINGS HER HALF OF THE PROPERTY
INTO HER FULL AND EXCLUSIVE POSSESSION, CONTROL AND ENJOYMENT.  THE
CESSATION OF THESE EXTENSIVE POWERS OF THE HUSBAND, EVEN THOUGH THEY
WERE POWERS OVER PROPERTY WHICH HE NEVER "OWNED," AND THE ESTABLISHMENT
IN THE WIFE OF NEW POWERS OF CONTROL OVER HER SHARE, THOUGH IT WAS
ALWAYS HERS, FURNISH APPROPRIATE OCCASIONS FOR THE IMPOSITION OF AN
EXCISE TAX. 

SIMILARLY, WITH THE DEATH OF THE WIFE, HER TITLE OR OWNERSHIP IN HER
SHARE OF THE COMMUNITY PROPERTY ENDS, AND PASSES TO HER HEIRS OR OTHER
APPOINTEES.  MORE THAN THIS, HER DEATH, BY ENDING THE MARITAL
COMMUNITY, LIBERATES HER HUSBAND'S SHARE FROM THE RESTRICTIONS WHICH
THE EXISTENCE OF THE COMMUNITY HAD PLACED UPON HIS CONTROL OF IT.  HE
ACQUIRES BY HER DEATH, THE RIGHT TO HAVE HIS SHARE OF THE COMMUNITY
SEPARATED FROM HERS BY PARTITION AND TO HOLD IF FREE OF ALL CONTROLS. 
HE OBTAINS, FOR THE FIRST TIME, THE RIGHT TO GIVE AWAY HIS IMMOVABLES,
AND THE RIGHT TO GIVE AWAY HIS MOVABLES AS A WHOLE OR BY A FRACTION OF
THE WHOLE.  HERE TOO, THE WIFE'S DEATH BRINGS INTO BEING A NEW SET OF
RELATIONSHIPS WITH RESPECT TO HIS SHARE OF THE COMMUNITY AS WELL AS
HERS, AMONG WHICH ARE NEW POWERS OF CONTROL AND DISPOSITION WHICH ARE
PROPER SUBJECTS OF AN EXCISE TAX MEASURED BY THE VALUE OF HIS SHARE. 
AND WHILE WE DO NOT REST DECISION ON THE POINT, IT IS OF SOME
SIGNIFICANCE THAT THIS SHIFT OF LEGAL RELATIONSHIPS EFFECTS A SHIFT IN
POINT OF ECONOMIC SUBSTANCE.  THE PRECEPT THAT THE WIFE IS EQUAL CO
OWNER WITH HER HUSBAND OF COMMUNITY PROPERTY UNDOUBTEDLY CALLS INTO
PLAY WITHIN THE MARITAL RELATIONSHIP PERSONAL AND PSYCHOLOGICAL FORCES
WHICH HAVE GREAT IMPORTANCE IN THE PRACTICAL DETERMINATION OF HOW
COMMUNITY PROPERTY SHALL BE MANAGED BY THE HUSBAND.  THOUGH IT MAY BE
IMPOSSIBLE FULLY TO TRANSLATE THESE IMPONDERABLES INTO LEGAL RULES, THE
DEATH OF THE WIFE UNDOUBTEDLY BRINGS, IN EVERY PRACTICAL ASPECT,
GREATER FREEDOM TO THE HUSBAND IN HIS DISPOSITION OF THAT SHARE OF
COMMUNITY PROPERTY WHICH IS TECHNICALLY HIS, THAN IS TO BE GATHERED
SOLELY FROM A READING OF STATUTES AND CASE LAW. 

THIS REDISTRIBUTION OF POWERS AND RESTRICTIONS UPON POWER IS BROUGHT
ABOUT BY DEATH NOTWITHSTANDING THAT THE RIGHTS IN THE PROPERTY SUBJECT
TO THESE POWERS AND RESTRICTIONS WERE IN EVERY SENSE "VESTED" FROM THE
MOMENT THE COMMUNITY BEGAN.  IT IS ENOUGH THAT DEATH BRINGS ABOUT
CHANGES IN THE LEGAL AND ECONOMIC RELATIONSHIPS TO THE PROPERTY TAXED,
AND THE EARLIER CERTAINTY THAT THOSE CHANGES WOULD OCCUR DOES NOT
IMPAIR THE LEGISLATIVE POWER TO RECOGNIZE THEM, AND TO LEVY A TAX ON
THE HAPPENING OF THE EVENT WHICH WAS THEIR GENERATING SOURCE. 

THE PRINCIPLES WHICH SUSTAIN THE PRESENT TAX AGAINST DUE PROCESS
OBJECTIONS ARE PRECISELY THOSE WHICH SUSTAINED THE CALIFORNIA TAX,
MEASURED BY THE ENTIRE VALUE OF COMMUNITY PROPERTY IN MOFFITT V. KELLY,
SUPRA.  THERE THE COURT RECOGNIZED THAT THE SURVIVING WIFE TOOK HER
SHARE OF THE PROPERTY ON HER HUSBAND'S DEATH, NOT AS AN HEIR, BUT AS AN
OWNER OF AN INTEREST, THE RIGHT TO WHICH SHE ACQUIRED BEFORE THE DEATH
AND BEFORE THE ENACTMENT OF THE TAXING ACT.  BUT THE LEVY UPON THE
ENTIRE VALUE OF THE COMMUNITY WAS SUSTAINED, NOT AS A TAX UPON PROPERTY
OR THE TRANSFER OF IT, BUT AS A TAX UPON THE "VESTING OF THE WIFE'S
RIGHT OF POSSESSION AND ENJOYMENT ARISING UPON THE DEATH OF HER
HUSBAND," WHICH THE COURT DEEMED AN APPROPRIATE SUBJECT OF TAXATION,
NOTWITHSTANDING THE CONTRACT, EQUAL PROTECTION AND DUE PROCESS CLAUSES
OF THE CONSTITUTION.  FN14  SO FAR AS COOLIDGE V. LONG, 282 U.S. 582,
IS INCONSISTENT WITH MOFFITT V. KELLY, SUPRA, AND THE CONTENTIONS NOW
URGED BY THE GOVERNMENT, THE APPLICATION OF THE REASONING OF THE
COOLIDGE CASE TO THE TAXATION OF JOINT OR COMMUNITY INTERESTS MUST BE
TAKEN TO HAVE BEEN LIMITED BY OUR DECISIONS IN TYLER V. UNITED STATES,
SUPRA, AND UNITED STATES V. JACOBS, SUPRA, AND THE CASES FOLLOWING
THEM. 

WHAT WE HAVE SAID OF THE NATURE AND INCIDENCE OF THE TAX ON COMMUNITY
PROPERTY IN LARGE MEASURE DISPOSES OF THE VARIOUS OTHER CONTENTIONS OF
APPELLEES.  SINCE THE LEVY IS AN EXCISE AND NOT A PROPERTY TAX, THE
CASE IS NOT ONE OF TAKING THE SURVIVOR'S PROPERTY TO PAY THE TAX ON
DECEDENT'S ESTATE.  AS THE TAX IS UPON THE SURRENDER OF OLD INCIDENTS
OF PROPERTY BY THE DECEDENT AND THE ACQUISITION OF NEW BY THE SURVIVOR,
IT IS APPROPRIATELY MEASURED BY THE VALUE OF THE PROPERTY TO WHICH
THESE INCIDENTS ATTACH.  THE TAX BURDEN THUS LAID IS NOT SO UNRELATED
TO THE PRIVILEGES ENJOYED BY THE TAXPAYERS WHO ARE OWNERS OF THE
PROPERTY AFFECTED THAT IT CAN BE SAID TO BE AN ARBITRARY EXERCISE OF
THE TAXING POWER.  MILLIKEN V. UNITED STATES, 283 U.S. 15; BURNET V.
WELLS, SUPRA, 678-9.  COMPARE SALTONSTALL V. SALTONSTALL, SUPRA.  WHILE
IT MAY GENERALLY BE TRUE, AS APPELLEES ARGUE, THAT NEITHER THE HUSBAND
NOR WIFE GAINS ANY OVER-ALL FINANCIAL ADVANTAGE WHEN THE OTHER DIES, IT
SUFFICES THAT THE DECEDENT LOSES AND THE SURVIVOR ACQUIRES, WITH
RESPECT TO THE PROPERTY TAXED, SUBSTANTIAL RIGHTS OF ENJOYMENT AND
CONTROL WHICH MAY BE OF VALUE.  LIABILITY TO THE TAX, IN ORDER TO AVOID
CONSTITUTIONAL OBJECTION, DOES NOT HAVE TO REST UPON THE ENJOYMENT BY
THE TAXPAYER OF ALL THE PRIVILEGES AND BENEFITS OF THE MOST FAVORED
OWNER AT A GIVEN TIME AND PLACE.  CORLISS V. BOWERS, 281 U.S. 376;
REINECKE V. SMITH, 289 U.S. 172; CF. BURNET V. GUGGENHEIM, 288 U.S.
280. 

WE FIND NO BASIS FOR THE CONTENTION THAT THE TAX IS ARBITRARY AND
CAPRICIOUS BECAUSE IT TAXES TRANSFERS AT DEATH AND ALSO THE SHIFTING AT
DEATH OF PARTICULAR INCIDENTS OF PROPERTY.  CONGRESS IS FREE TO TAX
EITHER OR BOTH, AND HERE IT HAS TAXED BOTH, AS IT MAY CONSTITUTIONALLY
DO, IN ORDER TO ACCOMPLISH "THE PURPOSES AND POLICY OF TAXATION" TO
PROTECT THE REVENUE AND AVOID AN UNEQUAL DISTRIBUTION OF THE TAX
BURDEN.  WATSON V. STATE COMPTROLLER, SUPRA. 

EVEN IF IT COULD BE THOUGHT TO AFFECT THE CONSTITUTIONALITY OF THE
TAXING STATUTE, IT IS PLAIN THAT THE STATUTE DOES NOT DEPEND FOR ITS
OPERATION UPON ANY PRESUMPTION THAT THE ENTIRE COMMUNITY PROPERTY IS
OWNED OR ECONOMICALLY ATTRIBUTABLE TO THE SPOUSE FIRST TO DIE.  SAVE AS
THE STATUTE ITSELF GRANTS AN EXEMPTION BY SUCH ATTRIBUTION, SO FAR AS
THE COMMUNITY PROPERTY "MAY BE SHOWN TO HAVE BEEN RECEIVED AS
COMPENSATION FOR PERSONAL SERVICES ACTUALLY RENDERED BY THE SURVIVING
SPOUSE OR DERIVED ORIGINALLY FROM SUCH COMPENSATION OR FROM SEPARATE
PROPERTY OF THE SURVIVING SPOUSE," THE TAX IS LAID WITHOUT REGARD TO
THE ECONOMIC SOURCE OF THE COMMUNITY PROPERTY.  APART FROM THE
EXEMPTION, IT IS, AS WE HAVE SEEN, THE SHIFTING AT DEATH OF THE
INCIDENTS OF THE PROPERTY, REGARDLESS OF ORIGIN, WHICH IS THE SUBJECT
OF THE TAX.    THE PRESENT STATUTE, WHICH WAS ENACTED IN ORDER TO
SECURE A MORE EQUITABLE DISTRIBUTION OF THE BURDEN OF FEDERAL DEATH
TAXES,  FN15  IS ASSAILED BECAUSE THE TAX IS LACKING IN UNIFORMITY. 
BUT THE UNIFORMITY IN EXCISE TAXES EXACTED BY THE CONSTITUTION IS
GEOGRAPHICAL UNIFORMITY, NOT UNIFORMITY OF INTRINSIC EQUALITY AND
OPERATION.  KNOWLTON V. MOORE, SUPRA, 83-109.  THE CONSTITUTION DOES
NOT COMMAND THAT A TAX "HAVE AN EQUAL EFFECT IN EACH STATE," ID. P.
104.  IT HAS LONG BEEN SETTLED THAT WITHIN THE MEANING OF THE
UNIFORMITY REQUIREMENT A "TAX IS UNIFORM WHEN IT OPERATES WITH THE SAME
FORCE AND EFFECT IN EVERY PLACE WHERE THE SUBJECT OF IT IS FOUND." 
HEAD MONEY CASES, 112 U.S. 580, 594.  SEE ALSO LABELLE IRON WORKS V.
UNITED STATES, 256 U.S. 377, 392-3; BROMLEY V. MCCAUGHN, SUPRA, 138;
STEWARD MACHINE CO. V. DAVIS, SUPRA, 583. 

THE AMENDMENT TAXING COMMUNITY PROPERTY INTERESTS IS APPLICABLE
THROUGHOUT THE TERRITORY OF THE UNITED STATES WHEREVER SUCH INTERESTS
MAY BE FOUND.  THERE IS NO LACK OF GEOGRAPHICAL UNIFORMITY BECAUSE IN
SOME STATES THEY ARE NOT FOUND.  FOR A TAXING STATUTE DOES NOT FALL
SHORT OF THE PRESCRIBED UNIFORMITY BECAUSE ITS OPERATION AND INCIDENCE
MAY BE AFFECTED BY DIFFERENCES IN STATE LAWS.  PHILLIPS V.
COMMISSIONER, 283 U.S. 589, 602; RIGGS V. DEL DRAGO, SUPRA, 102. 
"DIFFERENCES OF STATE LAW, WHICH MAY BRING A PERSON WITHIN OR WITHOUT
THE CATEGORY DESIGNATED BY CONGRESS AS TAXABLE, MAY NOT BE READ INTO
THE REVENUE ACT TO SPELL OUT A LACK OF UNIFORMITY" IN THE
CONSTITUTIONAL SENSE.  POE V. SEABORN, SUPRA, 117-8. 

APPELLEES SUGGEST THAT INTERESTS IN TENANCIES IN COMMON AND LIMITED
PARTNERSHIPS ARE VERY LIKE INTERESTS IN COMMUNITY PROPERTY, AND THAT IF
THE TAX IS TO BE UNIFORM, THE ONE CANNOT BE TAXED UNLESS THE OTHERS ARE
ALSO.  BUT EVEN IF IT BE AS APPELLEES ARGUE, THAT COMMON LAW FAMILY
PARTNERSHIP OR OTHER ARRANGEMENTS WITH DIFFERENT NAMES CAN BE SO
DEVISED THAT THE MARITAL RELATIONSHIP IS ATTENDED BY THE SAME POWERS
AND RESTRICTIONS AS THOSE DERIVED FROM THE LAWS OF THE COMMUNITY
PROPERTY STATES, AND THAT THEY ARE DIFFERENTLY OR MORE LIGHTLY TAXED
THAN COMMUNITY PROPERTY INTERESTS, WE FIND NO LACK OF UNIFORMITY IN THE
CONSTITUTIONAL SENSE.  THE PRESENT AMENDMENT IS GEOGRAPHICALLY UNIFORM
IN ITS APPLICATION TO THE ONLY SUBJECT OF WHICH IT TREATS, COMMUNITY
PROPERTY INTERESTS, AND IT LEVIES IN EVERY STATE AN IDENTICAL TAX UPON
THE SUBJECT MATTER INCLUDED WITHIN ITS TERMS - DEFINED PROPERTY
INTERESTS CREATED BY STATE LAW, HAVING A COMMON HISTORICAL ORIGIN, A
COMMON NAME, AND CONSTITUTING A UNIVERSALLY RECOGNIZED DISTINCT CLASS
OF PROPERTY INTERESTS. 

THERE CAN BE NO DOUBT THAT THE SELECTION OF SUCH A CLASS FOR TAXATION
WOULD NOT OFFEND AGAINST THE FIFTH AMENDMENT, OR EVEN THE FOURTEENTH,
MERELY BECAUSE IT DID NOT ATTEMPT TO REACH CASUAL ARRANGEMENTS
RESULTING FROM INDIVIDUAL AGREEMENTS.  TAXES MUST BE LAID BY GENERAL
RULES.  SEE STATE RAILROAD TAX CASES, 92 U.S. 575, 612; HEAD MONEY
CASES, SUPRA, 595; LABELLE IRON WORKS V. UNITED STATES, SUPRA, 392;
GREAT ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S. 412, 424. 
CONSIDERATIONS OF PRACTICAL ADMINISTRATIVE CONVENIENCE AND COST IN THE
ADMINISTRATION OF TAX LAWS AFFORD ADEQUATE GROUNDS FOR IMPOSING A TAX
ON A WELL RECOGNIZED AND DEFINED CLASS, WITHOUT ATTEMPTING TO EXTEND IT
SO AS TO EMBRACE A PENUMBRA OF SPECIAL AND MORE OR LESS CASUAL
INTERESTS WHICH IN EACH CASE MAY OR MAY NOT RESEMBLE THE TAXED CLASS. 
BURNET V. WELLS, SUPRA, 678; CARMICHAEL V. SOUTHERN COAL & COKE CO.,
301 U.S. 495, 511; RAPID TRANSIT CORP. V. NEW YORK, 303 U.S. 573, 582
3; MADISON AVENUE OFFICES V. BROWNE, APPEAL DISMISSED, 326 U.S. 682. 
SUCH INTERESTS WOULD BE BUT ISOLATED SPECIMENS OF THE ATTORNEY'S ART,
AND LIKELY TO RESIST EFFORTS TO IDENTIFY THEM WITH THE TAXABLE
SUBJECT. 

APPELLEES' CONTENTION THAT THE UNIFORMITY CLAUSE PRECLUDES SUCH
CLASSIFICATION WOULD IN EFFECT ADD TO THE CONSTITUTIONAL RESTRAINTS
UPON CONGRESS AN EQUAL PROTECTION CLAUSE MORE RESTRICTIVE THAN THAT OF
THE FOURTEENTH AMENDMENT, AND IS WITHOUT JUDICIAL OR HISTORICAL
SUPPORT.  THIS COURT IN LABELLE IRON WORKS V. UNITED STATES, SUPRA,
392, ET SEQ. RECOGNIZED THAT THE UNIFORMITY CLAUSE, BEYOND REQUIRING
GEOGRAPHICAL UNIFORMITY IN THE APPLICATION OF THE PARTICULAR TAX LAID
BY THE TAXING ACT, COULD NOT BE TAKEN TO IMPOSE GREATER RESTRICTIONS ON
CONGRESS' POWER TO TAX THAN THOSE WHICH THE EQUAL PROTECTION CLAUSE
PLACES UPON THE STATES.  WE REAFFIRM WHAT THIS COURT HAS MANY TIMES
HELD, THAT THE CONSTITUTIONAL COMMAND THAT "EXCISES SHALL BE UNIFORM
THROUGHOUT THE UNITED STATES" REFERS TO GEOGRAPHICAL UNIFORMITY IN THE
APPLICATION OF THE PARTICULAR EXCISE WHICH CONGRESS HAS PRESCRIBED.  WE
CONCLUDE THAT IT ADDS NOTHING TO RESTRICTIONS WHICH OTHER CLAUSES OF
THE CONSTITUTION MAY IMPOSE UPON THE POWER OF CONGRESS TO SELECT AND
CLASSIFY THE SUBJECTS OF TAXATION.  IT REQUIRES ONLY THAT WHAT CONGRESS
HAS PROPERLY SELECTED FOR TAXATION MUST BE IDENTICALLY TAXED IN EVERY
STATE WHERE IT IS FOUND. 

AN EXCISE TAX, WHICH THE CONSTITUTION REQUIRES TO BE UNIFORM, LAID
UPON THE SHIFTING AT DEATH OF SOME OF THE INCIDENTS OF PROPERTY, COULD
HARDLY BE THOUGHT TO BE A DIRECT TAX WHICH MUST BE APPORTIONED.  SEE
BROMLEY V. MCCAUGHN, SUPRA, 138.  THE CONTENTION THAT SUCH A TAX IS
DIRECT BECAUSE MEASURED BY THE PROPERTY WHOSE INCIDENTS ARE SHIFTED AT
DEATH, WAS REJECTED IN BROMLEY V. MCCAUGHN, SUPRA, AND IN TYLER V.
UNITED STATES, SUPRA, 501-4, AND PHILLIPS V. DIME TRUST CO., 284 U.S.
160, 165.  A TAX IMPOSED UPON THE EXERCISE OF SOME OF THE NUMEROUS
RIGHTS OF PROPERTY IS CLEARLY DISTINGUISHABLE FROM A DIRECT TAX, WHICH
FALLS UPON THE OWNER MERELY BECAUSE HE IS OWNER, REGARDLESS OF HIS USE
OR DISPOSITION OF THE PROPERTY.  "THE PERSISTENCE OF THIS DISTINCTION
AND THE JUSTIFICATION FOR IT REST UPON THE HISTORIC FACT THAT (EXCISE)
TAXES OF THIS TYPE WERE NOT UNDERSTOOD TO BE DIRECT TAXES WHEN THE
CONSTITUTION WAS ADOPTED AND, AS WELL, UPON THE RELUCTANCE OF THIS
COURT TO ENLARGE, BY CONSTRUCTION, LIMITATIONS UPON THE SOVEREIGN POWER
OF TAXATION BY ARTICLE I, SEC. 8, SO VITAL TO THE MAINTENANCE OF THE
NATIONAL GOVERNMENT."  BROMLEY V. MCCAUGHN, SUPRA, 137. 

THE TENTH AMENDMENT DOES NOT OPERATE AS A LIMITATION UPON THE POWERS,
EXPRESS OR IMPLIED, DELEGATED TO THE NATIONAL GOVERNMENT.  UNITED
STATES V. DARBY, 312 U.S. 100, 123-4.  THE AMENDMENT HAS CLEARLY PLACED
NO RESTRICTION UPON THE POWER DELEGATED TO THE NATIONAL GOVERNMENT TO
LAY AN EXCISE TAX QUA TAX.  UNDOUBTEDLY EVERY TAX WHICH LAYS ITS BURDEN
ON SOME AND NOT OTHERS MAY HAVE AN INCIDENTAL REGULATORY EFFECT.  BUT
SINCE THAT IS AN INSEPARABLE CONCOMITANT OF THE POWER TO TAX, THE
INCIDENTAL REGULATORY EFFECT OF THE TAX IS EMBRACED WITHIN THE POWER TO
LAY IT. IT HAS LONG BEEN SETTLED THAT AN ACT OF CONGRESS WHICH ON ITS
FACE PURPORTS TO BE AN EXERCISE OF THE TAXING POWER, IS NOT ANY THE
LESS SO BECAUSE THE TAX IS BURDENSOME OR TENDS TO RESTRICT OR SUPPRESS
THE THING TAXED.  IN SUCH A CASE IT IS NOT WITHIN THE PROVINCE OF
COURTS TO INQUIRE INTO THE UNEXPRESSED PURPOSES OR MOTIVES WHICH MAY
HAVE MOVED CONGRESS TO EXERCISE A POWER CONSTITUTIONALLY CONFERRED UPON
IT.  SONZINSKY V. UNITED STATES, 300 U.S. 506, 513-514, AND CASES
CITED. 

WE CONCLUDE THAT THE TAX HERE LAID WITH RESPECT TO THE COMMUNITY
PROPERTY INFRINGES NO CONSTITUTIONAL PROVISION. 

THE INCLUSION OF ALL THE PROCEEDS OF DECEDENT'S LIFE INSURANCE
POLICIES WITHIN HIS GROSS ESTATE FOR PURPOSES OF ESTATE TAXATION
REQUIRES NO EXTENDED DISCUSSION.  THERE IS NO CONTENTION THAT THE
PROCEEDS OF THE POLICIES ARE NOT MADE TAXABLE BY THE TERMS OF SEC.
811(G) OF THE INTERNAL REVENUE CODE AS AMENDED BY SEC. 404 OF THE
REVENUE ACT OF 1942.  FN16  THE AMENDMENT INDICATES ON ITS FACE THE
PURPOSE TO BRING THE PROVISIONS FOR THE TAXATION OF THE PROCEEDS OF
INSURANCE POLICIES PAYABLE AT DEATH INTO HARMONY WITH THE AMENDMENT
TAXING COMMUNITY INTERESTS, AND THE COURT BELOW SEEMS TO HAVE REGARDED,
AS DO THE PARTIES HERE, THE DISPOSITION OF THE QUESTIONS AFFECTING THE
TAX ON COMMUNITY INTERESTS AS DETERMINATIVE OF THE VALIDITY OF THE TAX
ON THE PROCEEDS OF THE POLICIES.  BUT IT IS SUFFICIENT FOR PRESENT
PURPOSES THAT THE TAX IS LAID UPON THE AMOUNT RECEIVABLE BY THE WIFE AS
A BENEFICIARY OF THE POLICIES ON THE DEATH OF HER HUSBAND, AND THAT THE
HUSBAND POSSESSED AT HIS DEATH AN INCIDENT OF OWNERSHIP, THE POWER TO
CHANGE THE BENEFICIARIES. 

FOR REASONS WHICH WE HAVE ALREADY FULLY DEVELOPED IN THIS OPINION,
THE DEATH OF THE INSURED, SINCE IT ENDED HIS CONTROL OVER THE
DISPOSITION OF THE PROCEEDS AND GAVE HIS WIFE THE PRESENT ENJOYMENT OF
THEM, MAY BE CONSTITUTIONALLY MADE THE OCCASION FOR THE IMPOSITION OF
AN INDIRECT TAX MEASURED BY THE PROCEEDS THEMSELVES.  STEBBINS V.
RILEY, SUPRA, 141; CHASE NATIONAL BANK V. UNITED STATES, SUPRA.
REVERSED. 

FN1  SECTION 811 OF THE INTERNAL REVENUE CODE (26 U.S.C. SEC. 811) AS
AMENDED BY SEC. 404 OF THE ACT OF 1942, PROVIDES THAT THE TAXABLE VALUE
OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY INCLUDING
THE VALUE AT THE TIME OF HIS DEATH OF 

"(G)  PROCEEDS OF LIFE INSURANCE 

"(1)  ...  TO THE EXTENT OF THE AMOUNT RECEIVABLE BY THE EXECUTOR
... 

"(2)  ...  TO THE EXTENT OF THE AMOUNT RECEIVABLE BY ALL OTHER
BENEFICIARIES AS INSURANCE UNDER POLICIES UPON THE LIFE OF THE DECEDENT
(A) PURCHASED WITH PREMIUMS, OR OTHER CONSIDERATION, PAID ...  BY THE
DECEDENT,  ...  OR (B) WITH RESPECT TO WHICH THE DECEDENT POSSESSED AT
HIS DEATH ANY OF THE INCIDENTS OF OWNERSHIP  ... 

"(4)  ...  FOR THE PURPOSES OF THIS SUBSECTION, PREMIUMS  ...  PAID
WITH PROPERTY HELD AS COMMUNITY PROPERTY BY THE INSURED AND SURVIVING
SPOUSE UNDER THE LAW OF ANY STATE,  ...  SHALL BE CONSIDERED TO HAVE
BEEN PAID BY THE INSURED, EXCEPT SUCH PART THEREOF AS MAY BE SHOWN TO
HAVE BEEN RECEIVED AS COMPENSATION FOR PERSONAL SERVICES ACTUALLY
RENDERED BY THE SURVIVING SPOUSE OR DERIVED ORIGINALLY FROM SUCH
COMPENSATION OR FROM SEPARATE PROPERTY OF THE SURVIVING SPOUSE; AND THE
TERM 'INCIDENTS OF OWNERSHIP' INCLUDES INCIDENTS OF OWNERSHIP POSSESSED
BY THE DECEDENT AT HIS DEATH AS MANAGER OF THE COMMUNITY." 

FN2  DART'S LOUISIANA CIVIL CODE (1945) ARTICLE 2399. 

FN3  ID., ARTICLE 2402; SEE TROXLER V. COLLEY, 33 LA. ANN. 425.  THE
INCOME FROM THE SEPARATE PROPERTY OF THE HUSBAND, AND OF SUCH OF THE
WIFE'S SEPARATE PROPERTY AS IS GIVEN OVER TO THE HUSBAND'S MANAGEMENT
ALSO FALLS INTO THE COMMUNITY BY ARTICLE 2402, SUPRA; SEE ALSO HELLBERG
V. HYLAND, 168 LA. 493, 122 SO. 593. 

FN4  SUCCESSION OF WIENER, 203 LA. 649, 14 SO.2D 475; SEE ALSO
PHILLIPS V. PHILLIPS, 160 LA. 813, 825 ET SEQ., 107 SO. 584. 

FN5  DART'S LOUISIANA CIVIL CODE (1945) ARTICLE 2404. 

FN6  MCCAFFREY V. BENSON, 40 LA. ANN. 10, 3 SO. 393; FRIERSON V.
FRIERSON, 164 LA. 687, 114 SO. 594. 

FN7  DART'S LOUISIANA CIVIL CODE (1945) ART. 2404.  THE RIGHTS
SECURED TO THE WIFE BY THIS INHIBITION ON GIFTS APPARENTLY MAY NOT BE
ENFORCED AGAINST THE HUSBAND OR THOSE TAKING UNDER HIM EITHER DURING
THE LIFE OF THE COMMUNITY OR AFTER ITS TERMINATION.  THE SOLE REMEDY IS
A SUIT AGAINST THE DONEE TO RECOVER THE PROPERTY IN HIS HANDS, BISTER
V. MENGE, 21 LA. ANN. 216; FRIERSON V. FRIERSON, SUPRA, AND EVEN SUCH A
SUIT APPARENTLY MAY NOT BE MAINTAINED UNTIL AFTER THE TERMINATION OF
THE COMMUNITY.  DAGGETT, THE COMMUNITY PROPERTY SYSTEM OF LOUISIANA
(1931) 24.  WHERE THE HUSBAND HAS ALIENED SOME PART OF THE COMMUNITY IN
FRAUD OF HIS WIFE'S RIGHTS, SHE OR THOSE REPRESENTING HER HAVE AN
ACTION FOR REIMBURSEMENT AGAINST THE HUSBAND OR HIS REPRESENTATIVES
UPON THE TERMINATION OF THE COMMUNITY, BUT NOT BEFORE.  GUICE V.
LAWRENCE, 2 LA. ANN. 226, 228.  THE FRAUD REQUIRED FOR AN ACTION OF
THIS KIND SEEMINGLY MUST BE INTENTIONAL AND THE MOTIVE FOR THE
TRANSFER.  SEE ART. 2404, SUPRA; SUCCESSION OF PACKWOOD, 12 ROB. 
(LA.)  334, 364-5; EXPOSITO V. LAPEYROUSE, 195 SO. 814(LA. APP.). 

FN8  BYWATER V. ENDERLE, 175 LA. 1098, 145 SO. 118; D.H. HOLMES CO.
V. MORRIS, 188 LA. 431, 177 SO. 417. 

FN9  DART'S LOUISIANA CIVIL CODE (1945) ARTICLES 2406, 2425.  AT THE
DISSOLUTION OF THE COMMUNITY, THE SHARE OF EACH SPOUSE IN THE
PARTNERSHIP'S ASSETS IS CREDITED WITH ONE-HALF OF THE AMOUNT BY WHICH
THE OTHER SPOUSE'S SEPARATE PROPERTY HAS BEEN ENHANCED IN VALUE BY THE
APPLICATION THERETO OF COMMUNITY FUNDS OR OF COMMON LABOR, ID., ARTICLE
2408; DILLON V. DILLON, 35 LA. ANN. 92.  THE WIFE'S SHARE MUST ALSO BE
CREDITED WITH ONE-HALF OF THE AMOUNT OF COMMUNITY FUNDS EXPENDED TO PAY
THE HUSBAND'S SEPARATE DEBTS, GLENN V. ELAM, 3 LA. ANN. 611, ALTHOUGH
THOSE DEBTS MAY BE SATISFIED DURING THE COMMUNITY BY LEVY UPON
COMMUNITY PROPERTY.  DAVIS V. COMPTON, 13 LA. ANN. 396. 

THE COMMUNITY RELATIONSHIP ENDS UPON THE DEATH OF ONE SPOUSE,
DIVORCE, SEPARATION FROM BED AND BOARD, OR, IN THE ABSENCE OF THESE,
UPON A JUDGMENT OF JUDICIAL SEPARATION OF PROPERTY.  SEE DART'S
LOUISIANA CIVIL CODE (1945), ARTICLES 2425, 2427, 2430.  ONLY THE WIFE
MAY REQUEST SUCH A SEPARATION, AND THE SEPARATION IS NOT A MERE MATTER
OF CONSENT BETWEEN THE SPOUSES.  DRISCOLL V. PIERCE, 115 LA. 156, 38
SO. 949.  SHE MUST SHOW THAT HER DOWRY RIGHTS OR OTHER SEPARATE
PROPERTY ENTRUSTED TO THE HUSBAND ARE IN DANGER OWING TO HER HUSBAND'S
MISMANAGEMENT OR FINANCIAL EMBARRASSMENT, OR THAT LIKE CONDITIONS
RENDER IT DOUBTFUL THAT SHE OR THE CHILDREN OF THE MARRIAGE WILL HAVE
THE BENEFIT OF HER OWN EARNINGS, OR OF HER FUTURE ACQUISITIONS OF
SPEARATE PROPERTY.  DAVOCK V. DARCY, 6 ROB.  (LA.)  342; WEBB V. BELL,
24 LA. ANN. 75; MEYER V. SMITH & CO., 24 LA. ANN. 153; JONES V. JONES,
119 LA. 677, 44 SO. 429.    FN10  DART'S LOUISIANA CIVIL CODE (1945)
ARTICLES 2406, 2409, 2430. 

FN11  SEE SUCCESSION OF WIENER, SUPRA. 

FN12  THE REPORT STATED: 

"FOR THE PURPOSE OF FEDERAL ESTATE TAXATION, HUSBAND AND WIFE LIVING
IN COMMUNITY-PROPERTY STATES ENJOY A PREFERENTIAL TREATMENT OVER THOSE
LIVING IN NON-COMMUNITY-PROPERTY STATES.  THIS IS DUE TO THE FACT THAT
ALL OF THE PROPERTY ACQUIRED BY THE HUSBAND AFTER MARRIAGE, THROUGH HIS
OWN EFFORTS, IN A COMMUNITY-PROPERTY STATE IS TREATED AS IF ONE-HALF
BELONGED TO THE WIFE.  IN NON-COMMUNITY-PROPERTY STATES, ALL SUCH
PROPERTY IS REGARDED AS BELONGING ENTIRELY TO THE HUSBAND.  THE
DIFFERENCE IN THE AMOUNT OF THE FEDERAL ESTATE TAX IS ENORMOUS AS SHOWN
BY THE FOLLOWING TABLES:..." 

THE TABLES SHOW THE GREAT DISPARITY BETWEEN THE ESTATE TAX LEVIED ON
COMMUNITY PROPERTY UPON THE DEATH OF THE HUSBAND WHO HAD ACCUMULATED IT
AND THE DEATH OF THE HUSBAND IN LIKE CIRCUMSTANCES IN NON-COMMUNITY
STATES.  THE TAX UPON AN ESTATE OF $100,000 BEING $500 IN A COMMUNITY
PROPERTY STATE AND $9,500 IN NON-COMMUNITY PROPERTY STATES.  IN THE
CASE OF A $5,000,000 ESTATE THE TAX SAVING IN A COMMUNITY PROPERTY
STATE WOULD AMOUNT TO AS MUCH AS $485,800, THE SAVING ON A $10,000,000
ESTATE IN A COMMUNITY PROPERTY STATE AMOUNTING TO AS MUCH AS
$1,171,800. 

THE PROPOSED AMENDMENT, IT WAS SAID, "ELIMINATES SPECIAL ESTATE TAX
PRIVILEGES ENJOYED BY DECEDENTS OF COMMUNITY PROPERTY ESTATES."  TO THE
SAME EFFECT IS S. REP. NO. 1631, 77TH CONG., 2D SESS., P. 231.  THE
INEQUITY INHERENT IN ALLOWING SPOUSES IN COMMUNITY PROPERTY STATES TO
BEAR A LIGHTER TAX BURDEN THAN THEIR COUNTERPARTS IN OTHER STATES HAD
BEEN BROUGHT TO CONGRESSIONAL ATTENTION ON OTHER OCCASIONS.  SEE E.G.,
PRESIDENT ROOSEVELT'S MESSAGE TO CONGRESS JUNE 1, 1937, H. DOC. NO.
260, 75TH CONG., 1ST SESS., P. 5; ALSO REPORTS TO THE JOINT COMMITTEE
ON INTERNAL REVENUE TAXATION, VOL. 2, PART II (1933), PP. 15, 118-121,
139-140. 

FN13  NIELSEN V. JOHNSON, 279 U.S. 47, 54, ET SEQ.; GLEASON & OTIS,
"INHERITANCE TAXATION" (4TH ED.), P. 243 ET SEQ. FEUDAL "RELIEF" WAS A
PAYMENT EXACTED OF THE HEIR FOR THE PRIVILEGE OF ADMISSION TO
POSSESSION OF THE LAND OF HIS ANCESTOR.  DIGBY, "HISTORY OF THE LAW OF
REAL PROPERTY" (5TH ED.), P. 40. 

FN14  THE FORCE OF MOFFITT V. KELLY, SUPRA, AS AN AUTHORITY
CONTROLLING THE TAXATION OF COMMUNITY PROPERTY IN LOUISIANA, WHERE THE
WIFE'S INTEREST IS VESTED BEFORE THE DEATH OF THE HUSBAND, IS NOT
IMPAIRED BY THE FACT THAT THE CALIFORNIA COURTS LATER HELD THAT THE
WIFE'S INTEREST IN COMMUNITY PROPERTY IN THAT STATE IS NOT SO VESTED. 
CF. UNITED STATES V. ROBBINS, 269 U.S. 315 WITH UNITED STATES V.
MALCOLM, 282 U.S. 792.  THE MOFFITT CASE WAS DECIDED UPON THE
ASSUMPTION THAT THE WIFE'S INTEREST WAS "VESTED." 

FN15  SEE FOOTNOTE 12, ANTE. 

FN16  FOOTNOTE 1, ANTE. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

PRIOR TO THE REVENUE ACT OF 1942 THERE WAS A GREAT LACK OF UNIFORMITY
AMONG THE STATES IN THE INCIDENCE OF THE FEDERAL ESTATE TAX.  IN MOST
OF THE STATES THE ACCUMULATIONS OF THE HUSBAND (WHO TYPICALLY IS THE
BREAD-WINNER) WERE TAXED IN THEIR ENTIRETY ON HIS DEATH.  IN THE
COMMUNITY PROPERTY STATES THE TAX GENERALLY REACHED ONLY HALF OF THE
ACCUMULATIONS BECAUSE OF THE THEORY THAT THEY WERE THE PRODUCT OF THE
WIFE'S AS WELL AS OF THE HUSBAND'S ACTIVITIES.  IT WAS THIS DISPARITY
WHICH CONGRESS SOUGHT TO ELIMINATE.  AS STATED IN THE HOUSE REPORT (H.
REP. NO. 2333, 77TH CONG., 2D SESS., PP. 35-37), 

"FOR THE PURPOSE OF FEDERAL ESTATE TAXATION, HUSBAND AND WIFE LIVING
IN COMMUNITY-PROPERTY STATES ENJOY A PREFERENTIAL TREATMENT OVER THOSE
LIVING IN NON-COMMUNITY-PROPERTY STATES.  THIS IS DUE TO THE FACT THAT
ALL OF THE PROPERTY ACQUIRED BY THE HUSBAND AFTER MARRIAGE, THROUGH HIS
OWN EFFORTS, IN A COMMUNITY-PROPERTY STATE IS TREATED AS IF ONE-HALF
BELONGED TO THE WIFE.  IN NON-COMMUNITY-PROPERTY STATES, ALL SUCH
PROPERTY IS REGARDED AS BELONGING ENTIRELY TO THE HUSBAND." 

THERE ARE CONTAINED IN THE REPORT TABLES SHOWING THE DIFFERENCE IN
THE AMOUNT OF THE FEDERAL ESTATE TAX IN THE COMMUNITY PROPERTY STATES
AND IN THE OTHER STATES, AFTER WHICH THE COMMITTEE MAKES THE FOLLOWING
COMMENT, 

"...  IN SOME INSTANCES THERE IS AN ENTIRE EXEMPTION FROM THE FEDERAL
ESTATE TAX FOR THE REASON THAT THE OMISSION OF ONE-HALF OF THE
COMMUNITY PROPERTY REDUCES THE HUSBAND'S NET ESTATE BELOW THE MINIMUM
EXEMPTION OF $40,000.  MOREOVER, THIS HALVING OF COMMUNITY PROPERTY
GREATLY REDUCES THE ESTATE TAX BECAUSE OF THE PROGRESSIVE RATES.  FOR
EXAMPLE, UNDER THE PRESENT LAW, A NET ESTATE OF $50,000 WILL PAY AN
ESTATE TAX OF $500 IN A NON-COMMUNITY-PROPERTY STATE AND NO TAX IN
COMMUNITY-PROPERTY STATE.  AN ESTATE OF $100,000 WILL PAY A TAX OF
$9,500 ON THE DEATH OF THE HUSBAND IN A NON-COMMUNITY-PROPERTY STATE
AND A TAX OF $500 ON THE DEATH OF THE HUSBAND IN A COMMUNITY-PROPERTY
STATE. 

"IF THE WIFE DIES WITHIN 5 YEARS OF HER HUSBAND, THE REMAINING
$50,000 UPON WHICH THE HUSBAND PAID NO ESTATE TAX WILL BE SUBJECT TO AN
ESTATE TAX OF $500.  THUS, THE TOTAL TAX PAID ON THIS $100,000 ESTATE
IN THE COMMUNITY-PROPERTY STATE WILL BE $1,000 AS COMPARED WITH $9,500
IN THE NON-COMMUNITY-PROPERTY STATE OR A TAX SAVING OF $8,500.  IN THE
CASE OF A $5,000,000 ESTATE, THE TAX SAVING IN A COMMUNITY-PROPERTY
STATE WILL AMOUNT TO AS MUCH AS $485,800 AND IN THE CASE OF A
$10,000,000 ESTATE, THE TAX SAVING IN A COMMUNITY-PROPERTY STATE WILL
AMOUNT TO AS MUCH AS $1,171,800."  AND SEE S. REP. NO. 1631, 77TH
CONG., 2D SESS., P. 231. 

MUCH MAY BE SAID FOR THE COMMUNITY PROPERTY THEORY THAT THE
ACCUMULATIONS OF PROPERTY DURING MARRIAGE ARE AS MUCH THE PRODUCT OF
THE ACTIVITIES OF THE WIFE AS THOSE OF THE TITULAR BREAD-WINNER.  BUT I
CAN SEE NO CONSTITUTIONAL REASON WHY CONGRESS MAY NOT CREDIT THEM ALL
TO THE HUSBAND FOR ESTATE TAX PURPOSES.  THE CHARACTER AND EXTENT OF
PROPERTY INTERESTS UNDER LOCAL LAW OFTEN DETERMINE THE REACH OF FEDERAL
TAX STATUTES.  HELVERING V. STUART, 317 U.S. 154, 161-162, AND CASES
CITED.  AND SEE CAHN, LOCAL LAW IN FEDERAL TAXATION, 52 YALE L. JOURN. 
799.  YET THAT IS NOT ALWAYS SO.  UNITED STATES V. PELZER, 312 U.S.
399.  TAXATION IS EMINENTLY A PRACTICAL MATTER.  CONGRESS NEED NOT BE
CIRCUMSCRIBED BY WHATEVER LINES ARE DRAWN BY LOCAL LAW.  IT MAY RELY,
AS TYLER V. UNITED STATES, 281 U.S. 497, 502-503, HELD, ON MORE
REALISTIC CONSIDERATIONS AND BASE CLASSIFICATIONS FOR ESTATE TAX
PURPOSES ON ECONOMIC ACTUALITIES.  IT WAS HELD, TO BE SURE, IN HOEPER
V. TAX COMMISSION, 284 U.S. 206, THAT A STATE COULD NOT ASSESS AGAINST
THE HUSBAND AN INCOME TAX COMPUTED ON THE COMBINED TOTAL OF HIS AND HIS
WIFE'S INCOME.  BUT I CAN SEE NO REASON WHY THAT WHICH IS IN FACT AN
ECONOMIC UNIT MAY NOT BE TREATED AS ONE IN LAW.  FOR AS MR. JUSTICE
HOLMES POINTED OUT IN HIS DISSENT, THERE IS A COMMUNITY OF INTEREST
"WHEN TWO SPOUSES LIVE TOGETHER AND WHEN USUALLY EACH WOULD GET THE
BENEFIT OF THE INCOME OF EACH WITHOUT INQUIRY INTO THE SOURCE."  AND HE
WENT ON TO SAY "TAXATION MAY CONSIDER NOT ONLY COMMAND OVER, BUT ACTUAL
ENJOYMENT OF, THE PROPERTY TAXED."  284 U.S. PP. 219-220.  CF.
HELVERING V. CLIFFORD, 309 U.S. 331, 335-337. 

THE CONGRESS HAS NOT GONE THE FULL DISTANCE HERE.  IT HAS NOT
INCLUDED IN ONE ESTATE ALL THE PROPERTY OWNED BY HUSBAND AND WIFE.  SO
FAR AS THIS CASE IS CONCERNED, IT HAS ONLY INCLUDED IN THE ESTATE OF
THE HUSBAND THE ACCUMULATIONS WHICH UNDER THE COMMUNITY PROPERTY SYSTEM
ARE DEEMED TO HAVE BEEN PRODUCED BY THE JOINT EFFORTS OF HIM AND HIS
WIFE.  I CAN SEE NO OBSTACLE TO THAT COURSE UNLESS IT BE THE UNIFORMITY
CLAUSE OF THE CONSTITUTION.  ART. I, SEC. 8, CL. 1.  BUT THERE CAN BE
NO OBJECTION ON THAT SCORE.  ON THE FACTS OF THIS CASE THE LAW GOES NO
FURTHER THAN TO ELIMINATE THE ESTATE TAX ADVANTAGE WHICH A MARRIED
RANCHER, BUSINESS MAN, ETC., IN LOUISIANA HAS OVER THOSE SIMILARLY
SITUATED IN THE COMMON LAW STATES.  CONGRESS, TO BE SURE, HAS
DISREGARDED THE MANNER IN WHICH LOUISIANA DIVIDED "OWNERSHIP" OF
PROPERTY BETWEEN HUSBAND AND WIFE.  BUT AS BETWEEN HUSBAND AND WIFE,
NOTIONS OF "VESTED INTERESTS," "OWNERSHIP," AND THE LIKE, ESTABLISHED
BY LOCAL LAW, ARE NO SURE GUIDE TO WHAT "BELONGS" TO ONE OR THE OTHER
IN ANY PRACTICAL SENSE.  WE WOULD BE BLIND TO THE USUAL IMPLICATIONS OF
THE INTIMATE RELATIONSHIP OF MARRIAGE IF WE FORCED CONGRESS TO TREAT
SUCH DIVISIONS OF "OWNERSHIP" THE SAME WAY IT DOES DIVISIONS OF
"OWNERSHIP" AMONG STRANGERS.  I FIND NO SUCH COMPULSION IN THE
CONSTITUTION. 

MR. JUSTICE BLACK JOINS IN THIS OPINION. 
..END :








UNITED STATES V. ROMPEL, 326 U.S. 367 


NO. 59.  ARGUED NOVEMBER 5, 6, 1945.  - DECIDED DECEMBER 10, 1945.  - 59
F.SUPP.  483, REVERSED. 


A FEDERAL ESTATE TAX, PURSUANT TO SEC. 811(E)(2) OF THE INTERNAL
REVENUE CODE AS AMENDED BY SEC. 402 OF THE REVENUE ACT OF 1942, ON THE
TERMINATION OF A TEXAS MARITAL COMMUNITY BY THE DEATH OF THE HUSBAND,
THE TAX BEING MEASURED BY THE VALUE OF THE ENTIRE COMMUNITY PROPERTY,
HELD VALID UNDER THE FEDERAL CONSTITUTION.  FERNANDEZ V. WIENER, ANTE,
P. 340.  P. 370. 

UNITED STATES V. ROMPEL, ADMINISTRATOR. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF TEXAS. 

APPEAL UNDER SEC. 2 OF THE ACT OF AUGUST 24, 1937, FROM A JUDGMENT
FOR THE PLAINTIFF IN A SUIT AGAINST THE UNITED STATES TO RECOVER AN
ALLEGED OVERPAYMENT OF FEDERAL ESTATE TAX, THE DECISION BEING AGAINST
THE CONSTITUTIONALITY OF THE FEDERAL ESTATE TAX STATUTE AS APPLIED. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO FERNANDEZ V. WIENER, ANTE, P. 340.  THE
COMMISSIONER OF INTERNAL REVENUE, PROCEEDING UNDER SEC. 811(E)(2) OF
THE INTERNAL REVENUE CODE, 26 U.S.C. SEC. 811(E)(2), AS AMENDED BY SEC.
402 OF THE REVENUE ACT OF 1942, 56 STAT. 798, HAS LEVIED, AND APPELLEE
HAS PAID, AN ESTATE TAX ON THE TERMINATION OF A TEXAS MARITAL COMMUNITY
BY THE DEATH OF THE HUSBAND, A DOMICILED RESIDENT OF TEXAS, THE TAX
BEING MEASURED BY THE VALUE OF THE ENTIRE COMMUNITY PROPERTY.  ALL OF
THE CONSTITUTIONAL QUESTIONS RAISED HERE WERE PRESENTED AND DECIDED IN
FERNANDEZ V. WIENER. 

APPELLEE, DECEDENT'S ADMINISTRATOR, BROUGHT THIS SUIT UNDER THE
TUCKER ACT, 28 U.S.C. SECS. 761-765, TO RECOVER AS AN ALLEGED
OVERPAYMENT SO MUCH OF THE ESTATE TAX PAID AS IS ATTRIBUTABLE TO THE
INCLUSION IN DECEDENT'S GROSS ESTATE OF THE VALUE OF THE WIFE'S SHARE
OF THE COMMUNITY PROPERTY. 

THE FACTS FOUND BY THE DISTRICT COURT WERE STIPULATED AND ARE NOT IN
DISPUTE.  DECEDENT, A RESIDENT OF TEXAS, WAS MARRIED FEBRUARY 12, 1901,
AND DIED ON NOVEMBER 17, 1943, LEAVING HIM SURVIVING HIS WIFE, THEIR
CHILD, AND GRANDCHILDREN.  FROM THE DATE OF THE MARRIAGE UNTIL 1934
DECEDENT'S PRINCIPAL ACTIVITY WAS THAT OF RAISING LIVESTOCK ON A RANCH
IN TEXAS, ACQUIRED LARGELY ON CREDIT, AND PAID FOR OUT OF SAVINGS FROM
THE RANCHING BUSINESS.  OTHER SAVINGS FROM THE BUSINESS WERE INVESTED
FROM TIME TO TIME.  AFTER 1934 HE RECEIVED RENT FROM THE RANCH PROPERTY
AND INCOME FROM LOANS AND INVESTMENTS ACCUMULATED OUT OF SAVINGS. 
DURING THE MARRIAGE NEITHER DECEDENT NOR HIS WIFE WAS EVER EMPLOYED BY
ANY ONE AT A WAGE OR SALARY, AND NEITHER RECEIVED ANY COMMISSIONS, FEES
OR SIMILAR COMPENSATION FOR PERSONAL SERVICES RENDERED.  AT THE TIME OF
DECEDENT'S DEATH THE COMMUNITY PROPERTY CONSISTED OF THE ORIGINAL RANCH
PROPERTY, INVESTMENTS ACQUIRED FROM SAVINGS FROM THE RANCH BUSINESS,
RENTALS AND OTHER INCOME FROM INVESTMENTS. 

IN THE ESTATE TAX RETURN FOR DECEDENT'S ESTATE ONLY ONE-HALF OF THE
VALUE OF THE COMMUNITY PROPERTY WAS REPORTED.  THE COMMISSIONER
INCLUDED THE FULL VALUE OF THE COMMUNITY PROPERTY IN THE DECEDENT'S
GROSS ESTATE, AND ASSESSED A DEFICIENCY ACCORDINGLY, WHICH APPELLEE
PAID.  IN THIS SUIT WHICH FOLLOWED, THE DISTRICT COURT GAVE JUDGMENT
FOR APPELLEE, 59 F.SUPP.  483, HOLDING THAT THE TAX VIOLATED THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT AND THE COMMAND OF ARTICLE I,
SEC. 8 THAT "ALL DUTIES, IMPOSTS AND EXCISES SHALL BE UNIFORM
THROUGHOUT THE UNITED STATES."  THE COURT FOUND IT UNNECESSARY TO PASS
ON OTHER CONSTITUTIONAL CONTENTIONS PRESENTED. 

THE CASE COMES HERE ON DIRECT APPEAL UNDER SEC. 2 OF THE ACT OF
AUGUST 24, 1937, 50 STAT. 751, 28 U.S.C. SEC. 349A, APPELLANT ASSIGNING
AS ERROR THE DISTRICT COURT'S RULING THAT THE TAX VIOLATES THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT AND THE UNIFORMITY CLAUSE OF
ARTICLE I, SEC. 8 OF THE CONSTITUTION, AND THE DISTRICT COURT'S FAILURE
TO HOLD THAT THE TAX IS CONSTITUTIONAL. 

COMMUNITY PROPERTY HAS BEEN RECOGNIZED AND DEFINED BY THE LAWS OF
TEXAS THROUGHOUT ITS HISTORY.* ITS LAWS GOVERNING COMMUNITY PROPERTY
INTERESTS ARE SIMILAR IN MOST RESPECTS TO THOSE OF LOUISIANA DESCRIBED
IN OUR OPINION IN THE WIENER CASE, SUPRA.  ON THE DEATH OF THE HUSBAND,
IN TEXAS, AS IN LOUISIANA, THE WIFE'S SHARE OF THE COMMUNITY IS FREED
FROM THE RESTRICTIONS OF HIS EXCLUSIVE MANAGEMENT AND CONTROL, AND THE
WIFE ACQUIRES EXCLUSIVE POSSESSION AND ENJOYMENT OF THE PROPERTY
CONSTITUTING HER SHARE, AS WELL AS IMPORTANT NEW POWERS OF CONTROL AND
DISPOSITION OVER IT.  ON THE DEATH OF THE WIFE, HER SHARE PASSES TO HER
HEIRS, AND HIS SHARE IS FREED FROM THE LIMITATIONS WHICH THE EXISTENCE
OF THE COMMUNITY PLACES ON HIS CONTROL OF COMMUNITY PROPERTY.  WHILE
TEXAS DOES NOT HAVE THE STATUTORY RESTRICTIONS ON GIFTS WHICH ARE TO BE
FOUND IN THE LOUISIANA CIVIL CODE, TEXAS DOES PLACE SOME LIMITATIONS ON
THE HUSBAND'S POWER TO MAKE GIFTS OF COMMUNITY PROPERTY.  AS WE SAID OF
TEXAS COMMUNITY PROPERTY IN HOPKINS V. BACON, 282 U.S. 122, 126, THE
AUTHORITIES HOLD "THAT IF THE HUSBAND, AS AGENT OF THE COMMUNITY, ACTS
IN FRAUD OF THE WIFE'S RIGHTS, SHE IS NOT WITHOUT REMEDY IN THE
COURTS.  (STRAMLER V. COE, 15 TEX. 211; MARTIN V. MORAN, 32 S.W. 904;
WATSON V. HARRIS, 130 S.W. 237; DAVIS V. DAVIS, 186 S.W. 775.)" 
APPELLEE ALSO CONCEDES THAT "EXCESSIVE AND CAPRICIOUS DONATIONS ARE
VOID," AND THAT MALICIOUS OR FRAUDULENT INTENT NEED NOT BE ESTABLISHED
IN ORDER THAT THE WIFE SHALL HAVE THE REMEDIES REFERRED TO. APPELLEE
DOES NOT QUESTION THAT THESE ARE THE RULES GENERALLY APPLICABLE TO
COMMUNITY PROPERTY IN TEXAS. 

*SPEER, LAW OF MARITAL RIGHTS IN TEXAS (1929) P. 409 ET SEQ. 

THE DEATH OF EITHER THE HUSBAND OR THE WIFE OF THE TEXAS COMMUNITY
THUS EFFECTS SUFFICIENT ALTERATION IN THE SPOUSES' POSSESSION AND
ENJOYMENT AND RECIPROCAL POWERS OF CONTROL AND DISPOSITION OF THE
COMMUNITY PROPERTY AS TO WARRANT THE IMPOSITION OF AN EXCISE TAX
MEASURED BY THE VALUE OF THE ENTIRE COMMUNITY. 

FOR THE REASONS FULLY STATED IN OUR OPINION IN THE WIENER CASE, WE
CONCLUDE THAT THE TAX AMENDMENT OF SEC. 811 OF THE INTERNAL REVENUE
CODE AUTHORIZING THE TAX AS APPLIED IN THIS CASE IS NOT OPEN TO ANY OF
THE CONSTITUTIONAL OBJECTIONS WHICH HAVE BEEN RAISED AGAINST IT EITHER
HERE OR BELOW.  THE JUDGMENT IS ACCORDINGLY REVERSED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT FOR
THE REASONS STATED IN THE CONCURRING OPINION OF MR. JUSTICE DOUGLAS IN
FERNANDEZ V. WIENER, ANTE, P. 363. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















MINE SAFETY CO. V. FORRESTAL, 326 U.S. 371 


NO. 71.  ARGUED NOVEMBER 9, 13, 1945.  - DECIDED DECEMBER 10, 1945.  -
59 F.SUPP.  733, AFFIRMED. 


1.  IN A SUIT BROUGHT BY A GOVERNMENT CONTRACTOR IN THE FORM OF A SUIT
AGAINST THE UNDER SECRETARY OF THE NAVY AS AN INDIVIDUAL AND NOT AS AN
OFFICER OF THE GOVERNMENT, BUT THE SOLE PURPOSE OF WHICH IS TO PREVENT
HIM FROM TAKING ACTION UNDER THE RENEGOTIATION ACT TO STOP PAYMENT OF
MONEY BY THE GOVERNMENT TO SATISFY THE GOVERNMENT'S AND NOT THE UNDER
SECRETARY'S DEBT, THE UNITED STATES IS AN INDISPENSABLE PARTY.  P.
373. 

2.  SUCH A SUIT WAS PROPERLY DISMISSED, EVEN THOUGH IT CHALLENGED THE
CONSTITUTIONALITY OF THE RENEGOTIATION ACT; BECAUSE IT WAS A SUIT
AGAINST THE UNITED STATES TO WHICH THE SOVEREIGN HAD NOT CONSENTED. 

MINE SAFETY APPLIANCES CO. V. FORRESTAL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

APPEAL FROM AN ORDER OF A THREE-JUDGE DISTRICT COURT DISMISSING, AS A
SUIT AGAINST THE UNITED STATES TO WHICH THE SOVEREIGN HAD NOT
CONSENTED, A COMPLAINT AGAINST THE UNDER SECRETARY OF THE NAVY SEEKING
AN INJUNCTION AND A DECLARATORY JUDGMENT HOLDING THE RENEGOTIATION ACT
UNCONSTITUTIONAL. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AFTER AN INVESTIGATION IN WHICH APPELLANT APPEARED, APPELLEE JAMES V.
FORRESTAL, WHILE UNDER SECRETARY OF THE NAVY, DETERMINED THAT THE
APPELLANT HAD RECEIVED A LARGE AMOUNT OF EXCESSIVE PROFITS ON
GOVERNMENT WAR CONTRACTS WITHIN THE MEANING OF THE RENEGOTIATION ACT. 
FN1  PURSUANT TO THE POWERS GIVEN HIM BY THAT ACT THE APPELLEE NOTIFIED
APPELLANT THAT UNLESS APPELLANT TOOK ACTION TO ELIMINATE THESE PROFITS
THE UNDER SECRETARY WOULD DIRECT GOVERNMENT DISBURSING OFFICERS TO
WITHHOLD PAYMENTS DUE APPELLANT ON OTHER CONTRACTS, SUFFICIENT IN
AMOUNT TO OFFSET THE GOVERNMENT'S LOSS DUE TO THE EXCESSIVE PROFITS. 
FN2  SECTION 403(E) OF THE RENEGOTIATION ACT PROVIDES THAT ANY
CONTRACTOR AGGRIEVED BY THE SECRETARY'S DETERMINATION MAY WITHIN NINETY
DAYS APPLY TO THE TAX COURT FOR A DE NOVO TRIAL AND ADJUDICATION OF THE
ISSUE.  THE SECTION PROVIDES THAT THE TAX COURT "SHALL HAVE EXCLUSIVE
JURISDICTION  ...  TO FINALLY DETERMINE THE AMOUNT  ... AND SUCH
DETERMINATION SHALL NOT BE REVIEWED OR REDETERMINED BY ANY COURT OR
AGENCY."  58 STAT. 86.  THE APPELLANT, WITHOUT FOLLOWING THE PROCEDURE
PROVIDED FOR IN SEC. 403(E), FILED THIS COMPLAINT IN THE DISTRICT
COURT.  THE COMPLAINT SEEKS AN INJUNCTION AND DECLARATORY JUDGMENT.  IT
ALLEGES, AMONG OTHER THINGS, THAT THE ACT IS UNCONSTITUTIONAL ON MANY
GROUNDS; THAT WITHHOLDING PAYMENT OF THE SUMS FOUND TO REPRESENT
EXCESSIVE PROFITS WOULD SERIOUSLY INTERFERE WITH APPELLANT'S OPERATIONS
AND WITH PRODUCTION OF CRITICAL MATERIALS FOR THE GOVERNMENT; THAT, DUE
TO STATUTES AND EXECUTIVE ORDERS WHICH MAKE MANY OF THE APPELLANT'S
CONTRACTS CONFIDENTIAL AND SECRET, IT WILL BE IMPOSSIBLE FOR IT TO
CARRY ON PROCEEDINGS TO ENFORCE ITS CONTRACT RIGHTS UNTIL THESE
RESTRICTIONS ARE LIFTED; AND THAT IT IS WITHOUT A PLAIN, ADEQUATE AND
COMPLETE REMEDY AT LAW.  FN3  THE DISTRICT COURT COMPOSED OF THREE
JUDGES DISMISSED THE COMPLAINT AS A SUIT AGAINST THE UNITED STATES TO
WHICH THE SOVEREIGN HAD NOT CONSENTED, 59 F.SUPP.  733, AND THE CASE
COMES BEFORE US ON DIRECT APPEAL.  28 U.S.C. SEC. 380A.  HERE
GOVERNMENT COUNSEL, APPEARING FOR THE SECRETARY, ADVANCE THE DISTRICT
COURT'S GROUNDS AND CONTEND FURTHER THAT THE JUDGMENT BELOW BE AFFIRMED
BECAUSE APPELLANT FAILED TO EXHAUST ITS ADMINISTRATIVE REMEDY AND TO
FOLLOW THE STATUTORY PROCEDURE IN NOT FIRST GOING BEFORE THE TAX COURT
TO WHICH CONGRESS HAS GRANTED "EXCLUSIVE" JURISDICTION, AND BECAUSE IT
DOES NOT APPEAR THAT APPELLANT IS WITHOUT AN ADEQUATE LEGAL REMEDY. 

WE THINK THE GOVERNMENT IS AN INDISPENSABLE PARTY IN THIS CASE, AND
SINCE IT HAS NOT CONSENTED TO BE SUED IN THE DISTRICT COURT IN THIS
TYPE OF PROCEEDING, THE COMPLAINT WAS PROPERLY DISMISSED AGAINST THE
GOVERNMENT OFFICER.  MINNESOTA V. UNITED STATES, 305 U.S. 382; STANLEY
V. SCHWALBY, 162 U.S. 255.  APPELLANT CONTENDS THAT THE ACTION SEEKS TO
PREVENT A TORT BY THE SECRETARY, ACTING AS AN INDIVIDUAL AND NOT AS AN
OFFICER OF THE GOVERNMENT, CONSISTING OF A TRESPASS AGAINST APPELLANT'S
PROPERTY, AND THAT EQUITABLE RELIEF IS NECESSARY BECAUSE APPELLANT HAS
NO ADEQUATE REMEDY AT LAW AND SINCE IT WOULD OTHERWISE SUFFER
IRREPARABLE LOSS.  UNDER OUR FORMER DECISIONS, HAD THE FACTUAL
ALLEGATIONS SUPPORTED THESE CONTENTIONS, THE COMPLAINT AS FILED WOULD,
IN THE ABSENCE OF ANY FURTHER PROCEEDINGS, HAVE PROVIDED A BASIS FOR
THE EQUITABLE RELIEF SOUGHT.  SEE E.G., PHILADELPHIA COMPANY V.
STIMSON, 223 U.S. 605, 619-620.  FOR ACCORDING TO THESE CASES, IF WE
ASSUME, AS WE MUST FOR THE PURPOSE OF DISPOSING OF THE JURISDICTIONAL
ISSUE, THAT APPELLANT'S ALLEGATIONS INCLUDING THE ONE THAT THE
RENEGOTIATION ACT IS UNCONSTITUTIONAL ARE TRUE, THE FACT THAT THE
SECRETARY HAD ACTED PURSUANT TO THE COMMAND OF THAT STATUTE WOULD HAVE
MADE NO DIFFERENCE.  THESE CASES HOLD THAT A PUBLIC OFFICER CAN NOT
JUSTIFY A TRESPASS AGAINST A PERSON'S PROPERTY BY INVOKING THE COMMAND
OF AN UNCONSTITUTIONAL STATUTE.  UNDER SUCH CIRCUMSTANCES, THE TORT
BECOMES THE OFFICER'S INDIVIDUAL RESPONSIBILITY, AND THE GOVERNMENT IS
NOT HELD TO HAVE SUFFICIENT INTEREST IN THE CONTROVERSY TO BE
CONSIDERED AN INDISPENSABLE PARTY.  BUT THE GOVERNMENT DOES NOT LACK
SUCH INTEREST IN ALL CASES WHERE THE SUIT IS NOMINALLY AGAINST THE
OFFICER AS AN INDIVIDUAL.  THE GOVERNMENT'S INTEREST MUST BE DETERMINED
IN EACH CASE "BY THE ESSENTIAL NATURE AND EFFECT OF THE PROCEEDING, AS
IT APPEARS FROM THE ENTIRE RECORD."  EX PARTE NEW YORK, 256 U.S. 490,
500. 

HERE, THE ESSENTIAL ALLEGATIONS AND THE RELIEF SOUGHT DO NOT MAKE OUT
A THREATENED TRESPASS AGAINST ANY PROPERTY IN THE POSSESSION OF OR
BELONGING TO THE APPELLANT.  NOR DOES THE RECORD PRESENT ANY OTHER
CIRCUMSTANCES THAT WOULD MAKE THE SECRETARY SUABLE AS AN INDIVIDUAL IN
THIS PROCEEDING.  CERTAINLY THE ACTION WHICH THE SECRETARY PROPOSED TO
TAKE IS NOT A VIOLATION OF ANY EXPRESS COMMAND OF CONGRESS.  CF.
ROLSTON V. MISSOURI FUND COMM'RS, 120 U.S. 390, 411; HOUSTON V. ORMES,
252 U.S. 469; SMITH V. JACKSON, 246 U.S. 388.  THE SOLE PURPOSE OF THIS
PROCEEDING IS TO PREVENT THE SECRETARY FROM TAKING CERTAIN ACTION WHICH
WOULD STOP PAYMENT BY THE GOVERNMENT OF MONEY LAWFULLY IN THE UNITED
STATES TREASURY TO SATISFY THE GOVERNMENT'S AND NOT THE SECRETARY'S
DEBT TO THE APPELLANT.  THE ASSUMPTION UNDERLYING THIS ACTION IS THAT
IF THE RELIEF PRAYED FOR IS GRANTED, THE GOVERNMENT WILL PAY AND THUS
RELINQUISH OWNERSHIP AND POSSESSION OF THE MONEY.  IN EFFECT,
THEREFORE, THIS IS AN INDIRECT EFFORT TO COLLECT A DEBT ALLEGEDLY OWED
BY THE GOVERNMENT IN A PROCEEDING TO WHICH THE GOVERNMENT HAS NOT
CONSENTED.  THE UNDERLYING BASIS FOR THE RELIEF ASKED IS THE ALLEGED
UNCONSTITUTIONALITY OF THE RENEGOTIATION ACT  FN4  AND THE SOLE PURPOSE
OF THE PROCEEDING IS TO FIX THE GOVERNMENT'S AND NOT THE SECRETARY'S
LIABILITY.  THUS, THOUGH APPELLANT DENIES IT, THE CONCLUSION IS
INESCAPABLE THAT THE SUIT IS ESSENTIALLY ONE DESIGNED TO REACH MONEY
WHICH THE GOVERNMENT OWNS.  UNDER THESE CIRCUMSTANCES THE GOVERNMENT IS
AN INDISPENSABLE PARTY, MINNESOTA V. UNITED STATES, 305 U.S. 382, 388,
EVEN THOUGH THE RENEGOTIATION ACT UNDER WHICH THE SECRETARY PROPOSED TO
ACT MIGHT BE HELD UNCONSTITUTIONAL.  LOUISIANA V. JUMEL, 107 U.S. 711;
CUNNINGHAM V. MACON & BRUNSWICK R. CO., 109 U.S. 446; HAGOOD V.
SOUTHERN, 117 U.S. 52, 67, 68; IN RE AYERS, 123 U.S. 443, 496, 497, 505
507; PENNOYER V. MCCONNAUGHY, 140 U.S. 1, 9; WELLS V. ROPER, 246 U.S.
335, 337; SEE ALSO N.Y. GUARANTY & INDEMNITY CO. V. STEEL, 134 U.S.
230.  IN SHORT THE GOVERNMENT'S LIABILITY CAN NOT BE TRIED "BEHIND ITS
BACK."  LOUISIANA V. GARFIELD, 211 U.S. 70, 78.  AFFIRMED. 

FN1  56 STAT. 226, 245; 56 STAT. 798, 982; 57 STAT. 347; 57 STAT.
564; 58 STAT. 21, 78. 

FN2  SECTION 403(C)(2) OF THE RENEGOTIATION ACT AUTHORIZES AND
DIRECTS THE SECRETARY TO ELIMINATE EXCESSIVE PROFITS BY, AMONG OTHER
THINGS, "WITHHOLDING FROM AMOUNTS OTHERWISE DUE TO THE CONTRACTOR ANY
AMOUNT OF SUCH EXCESSIVE PROFITS." 

FN3  APPELLANT ALSO ALLEGED BELOW THAT THE SECRETARY HAD THREATENED
TO INSTRUCT OTHER CONTRACTORS TO WITHHOLD ANY MONEYS DUE TO APPELLANT. 
A STIPULATION AND AFFIDAVIT BY THE PARTIES REVEAL, HOWEVER, THAT THIS
ACTION WILL IN FACT NOT BE TAKEN.  ANY CONTROVERSY THAT MIGHT HAVE BEEN
BEFORE THE COURT BY VIRTUE OF THIS ALLEGATION HAS, THUS, BECOME MOOT. 
IT CAN THEREFORE NOT SERVE AS THE BASIS FOR THE COURT'S CONSIDERATION
OF THE CONSTITUTIONAL AND OTHER QUESTIONS HERE IN ISSUE.  UNITED STATES
V. ALASKA STEAMSHIP CO., 253 U.S. 113; COMMERCIAL CABLE CO. V.
BURLESON, 250 U.S. 360; MONTGOMERY WARD & CO. V. UNITED STATES, 326
U.S. 690.  CF. COFFMAN V. BREEZE CORPORATIONS, 323 U.S. 316. 

FN4  THIS IS SEEN FROM THE PRAYER FOR A DECLARATORY JUDGMENT, WHICH
ASKS ONLY THAT THE RENEGOTIATION ACT BE HELD UNCONSTITUTIONAL. 

MR. JUSTICE REED CONCURS IN THE RESULT FOR THE REASON THAT HE THINKS
NO ADEQUATE GROUND IS ALLEGED FOR AN INJUNCTION.  IN HIS VIEW A LEGAL
REMEDY EXISTS IN THE COURT OF CLAIMS SINCE OBJECTION TO THE AMOUNT OF
EXCESS PROFITS IS WAIVED AND THE STIPULATION, REFERRED TO IN THE
OPINION, REMOVES MULTIPLICITY OF ACTIONS FOR RELIEF AS A POSSIBLE
GROUND. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















MAY STORES CO. V. LABOR BOARD, 326 U.S. 376 


NO. 39.  ARGUED OCTOBER 12, 1945.  - DECIDED DECEMBER 10, 1945.  - 146
F.2D 66, MODIFIED AND AFFIRMED. 


1.  THE CONCLUSION OF THE NATIONAL LABOR RELATIONS BOARD THAT ALL NON
SUPERVISORY EMPLOYEES IN THE MEN'S BUSHELING ROOMS OF A DEPARTMENT
STORE, THOUGH NUMBERING ONLY 30 TO 40 OF THE STORE'S 5,000 EMPLOYEES,
CONSTITUTED AN APPROPRIATE UNIT FOR COLLECTIVE BARGAINING UNDER SEC.
9(B) OF THE ACT, SINCE THESE EMPLOYEES HAD A DEGREE OF SELF
ORGANIZATION AND A SPECIAL TRADE WHICH SUFFICIENTLY DIFFERENTIATED THEM
FROM OTHER EMPLOYEES, WAS AMPLY SUPPORTED BY THE EVIDENCE.  P. 380. 

2.  IN THE CIRCUMSTANCES OF THE ELECTION OF A JOINT COUNCIL AS
BARGAINING REPRESENTATIVE IN THIS CASE - THE BOARD HAVING DIRECTED THE
PLACING OF THE NAME OF THE JOINT COUNCIL ON THE BALLOT, ALTHOUGH THE
EMPLOYEES IN THE UNIT WERE MEMBERS OF A LOCAL UNION WHICH THE JOINT
COUNCIL REPRESENTED - THERE IS NO BASIS FOR THE EMPLOYER'S OBJECTION TO
THE CERTIFICATION ON THE GROUND OF POSSIBLE CONFUSION OF THE
EMPLOYEES.  P. 381. 

3.  UNDER THE NATIONAL LABOR RELATIONS ACT, IT IS THE DUTY OF THE
EMPLOYER TO BARGAIN COLLECTIVELY ONLY WITH THE DULY RECOGNIZED OR
ACCREDITED REPRESENTATIVE OF THE EMPLOYEES; AND DISREGARD OF THIS DUTY
IS A VIOLATION OF SEC. 8(1) OF THE ACT.  P. 383. 

4.  THE NATIONAL LABOR RELATIONS BOARD WAS JUSTIFIED IN FINDING THAT
THE EMPLOYER, IN SEEKING THE WAR LABOR BOARD'S APPROVAL OF WAGE
INCREASES FOR ITS EMPLOYEES, INCLUDING EMPLOYEES IN THE UNIT HERE
INVOLVED, WITHOUT BARGAINING COLLECTIVELY WITH THE CERTIFIED
REPRESENTATIVE IN RESPECT OF THE WAGES, WAS GUILTY OF AN UNFAIR LABOR
PRACTICE IN VIOLATION OF SEC. 8(1) OF THE ACT.  P. 384. 

5.  THE ADMISSION IN EVIDENCE AND CONSIDERATION BY THE BOARD OF
ANNOUNCEMENTS MADE OVER THE STORE'S PUBLIC ADDRESS SYSTEM AND IN THE
HOUSE ORGAN, CONCERNING THE APPLICATION FOR WAR LABOR BOARD APPROVAL OF
WAGE INCREASES FOR ITS EMPLOYEES, DID NOT DENY THE EMPLOYER'S FREEDOM
OF SPEECH UNDER THE FIRST AMENDMENT OF THE FEDERAL CONSTITUTION.  P.
386. 

6.  IN THE CIRCUMSTANCES OF THIS CASE, THE INJUNCTION AGAINST THE
EMPLOYER WILL BE MODIFIED SO AS NOT TO APPLY GENERALLY TO ALL
VIOLATIONS OF THE RIGHTS OF THE EMPLOYEES IN THE BARGAINING UNIT HERE
INVOLVED, BUT ONLY TO OTHER INTERFERENCES, IN VIOLATION OF SEC. 8(1) OR
OTHERWISE, WITH THE CERTIFIED AGENT'S REPRESENTATION OF THESE
EMPLOYEES.  P. 392. 

MAY DEPARTMENT STORES CO., DOING BUSINESS AS FAMOUS-BARR CO., V.
NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 324 U.S. 838, TO REVIEW A DECREE ORDERING ENFORCEMENT OF
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 53 N.L.R.B. 1366. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT OF CERTIORARI BRINGS HERE FOR REVIEW THE DECREE OF THE
CIRCUIT COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD WHICH WAS ENTERED AFTER THE BOARD FOUND UPON HEARINGS
THAT PETITIONER HAD VIOLATED SECTIONS 8(1) AND 8(5) OF THE NATIONAL
LABOR RELATIONS ACT.  FN1  THE PETITION FOR THE WRIT PRESENTED ISSUES
(1) AS TO WHETHER TWO SMALL RELATED DEPARTMENTS WITH THIRTY TO FORTY
EMPLOYEES MAY BE AN APPROPRIATE BARGAINING UNIT WHEN THE DEPARTMENT
STORE OF WHICH THEY ARE A PART HAS AROUND THREE HUNDRED AND FIFTY
DEPARTMENTS AND APPROXIMATELY FIVE THOUSAND EMPLOYEES; (2) AS TO
WHETHER THE BOARD COULD PROPERLY PLACE THE NAME OF A JOINT LABOR
COUNCIL ON THE BALLOT FOR THE EMPLOYEES' BARGAINING REPRESENTATIVE WHEN
NONE OF THE EMPLOYEES WERE MEMBERS OF THE COUNCIL BUT ONLY OF A LOCAL
UNION WHICH WAS ASSOCIATED WITH OTHERS IN THE COUNCIL; (3) AS TO
WHETHER SEEKING AUTHORITY BY THE EMPLOYER FROM THE NATIONAL WAR LABOR
BOARD TO INCREASE WAGES WITHOUT TAKING UP THE INCREASE WITH A CERTIFIED
BARGAINING AGENT MAY BE AN UNFAIR LABOR PRACTICE UNDER SEC. 8(1) OF THE
LABOR ACT; AND (4) AS TO THE PROPRIETY OF A BOARD ORDER TO CEASE AND
DESIST GENERALLY FROM UNFAIR LABOR PRACTICES INSTEAD OF AN ORDER TO
CEASE AND DESIST ONLY FROM THE TYPE OR TYPES OF UNFAIR PRACTICES WHICH
THE BOARD FOUND THE EMPLOYER COMMITTED.  AS THESE ISSUES PRESENTED
IMPORTANT PROBLEMS IN THE ADMINISTRATION OF THE NATIONAL LABOR
RELATIONS ACT, CERTIORARI WAS GRANTED.  324 U.S. 838. 

APPROPRIATE UNIT.  AFTER A HEARING IN WHICH THE EMPLOYER, THE
PETITIONER HERE, THE MAY DEPARTMENT STORES COMPANY, DOING BUSINESS AS
FAMOUS-BARR COMPANY, A ST. LOUIS DEPARTMENT STORE, TOOK PART, THE LABOR
RELATIONS BOARD, ON JUNE 16, 1943, FOUND THAT ALL NON-SUPERVISORY
EMPLOYEES OF THE COMPANY, THEN 28 IN NUMBER, WORKING IN THE MAIN AND
BASEMENT MEN'S BUSHELING ROOMS, CONSTITUTED AN APPROPRIATE UNIT FOR
COLLECTIVE BARGAINING WITHIN THE MEANING OF SEC. 9(B)  FN2  OF THE
LABOR RELATIONS ACT.  AN ELECTION WAS ORDERED.  IT RESULTED IN THE
CHOICE AND DESIGNATION OF THE ST. LOUIS JOINT COUNCIL, UNITED RETAIL,
WHOLESALE & DEPARTMENT STORE EMPLOYEES OF AMERICA, C.I.O., AS THE
REPRESENTATIVE FOR COLLECTIVE BARGAINING OF THE EMPLOYEES OF THE UNIT. 

THE COMPANY CONTENDED THAT A STORE-WIDE UNIT OF ITS FIVE THOUSAND
EMPLOYEES WAS THE MOST APPROPRIATE AND AT ANY RATE THAT EMPLOYEES IN
THE WOMEN'S ALTERATION AND THE FUR ALTERATION DEPARTMENTS SHOULD BE
ADDED TO THE EMPLOYEES IN THE MEN'S BUSHELING ROOMS TO FORM THE UNIT. 
AS THERE IS NO PROVISION FOR DIRECT REVIEW OF THE DETERMINATION AND
CERTIFICATION OF THE BARGAINING REPRESENTATIVE, THE COMPANY, IN ORDER
TO SECURE JUDICIAL REVIEW OF THE FINDING AS TO THE UNIT, AWAITED THIS
PROCEEDING WHICH SOUGHT A DECREE DIRECTING IT TO BARGAIN COLLECTIVELY
WITH THE REPRESENTATIVE.  SEE INLAND EMPIRE COUNCIL V. MILLIS, 325 U.S.
697. 

A FEW MONTHS BEFORE THIS PROCEEDING A DETERMINATION THAT ALL
EMPLOYEES OF THE COMPANY SUBJECT TO STATED EXCEPTIONS WERE THE
APPROPRIATE UNIT FOR COLLECTIVE BARGAINING HAD BEEN SOUGHT BY THE
C.I.O.  THE COMPANY OBJECTED BECAUSE NO SUFFICIENT SHOWING OF
REPRESENTATION WAS MADE AND BECAUSE IT TOOK EXCEPTION TO THE EXCLUSION
OF CERTAIN EMPLOYEES FROM THE PROPOSED UNIT.  THIS PETITION WAS
DISMISSED FOR FAILURE OF THE C.I.O. TO MAKE A SUBSTANTIAL SHOWING OF
MEMBERSHIP IN THE SUGGESTED STOREWIDE UNIT.  46 N.L.R.B. 305.  THAT
PRIOR APPLICATION IS NOT A BAR TO THIS.  THE BOARD WAS CAREFUL TO NOTE
IN THIS PROCEEDING THAT A LARGER UNIT MIGHT BE FIXED AS APPROPRIATE IF
SELF-ORGANIZATION DEVELOPED.  OTHER DEPARTMENTS OF THE STORE HAD
MEMBERS OF THIS AND OTHER UNIONS AS EMPLOYEES.  THIS PRESENCE OF UNION
MEMBERS THROUGHOUT THE ENTERPRISE WAS A MATTER OF CONSIDERATION IN
DECIDING UPON THE APPROPRIATE UNIT BUT WAS NOT DECISIVE.  COMPARE
PITTSBURGH PLATE GLASS CO. V. LABOR BOARD, 313 U.S. 146, 156.  NO LABOR
ORGANIZATION CLAIMED TO REPRESENT THE ENTIRE BODY OF EMPLOYEES. 
THEREFORE THE BOARD DETERMINED TO APPROVE THIS UNIT AS APPROPRIATE SO
THAT COLLECTIVE BARGAINING MIGHT START FOR THESE EMPLOYEES WITHOUT
WAITING UNTIL MORE EMPLOYEES MIGHT BE ORGANIZED INTO A LARGER UNIT. 
COMPARE LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111, 134. 

UNDER SEC. 9(B) THE BOARD IS DELEGATED THE AUTHORITY TO DETERMINE THE
UNIT.  THE JUDICIAL REVIEW AFFORDED IS NOT FOR THE PURPOSE OF WEIGHING
THE EVIDENCE UPON WHICH THE BOARD ACTED AND PERHAPS TO OVERRULE THE
EXERCISE OF ITS DISCRETION BUT TO "GUARANTEE AGAINST ARBITRARY ACTION
BY THE BOARD."  FN3  THE BOARD HAD BEFORE IT THE BUSINESS OF THE
COMPANY, THE NUMBERS OF EMPLOYEES, THE TREATMENT OF ALL EMPLOYEES AS A
UNIT BY MANAGEMENT WITH REFERENCE TO SICK LEAVE, HOSPITALIZATION,
EMPLOYEE PRIVILEGES, VACATIONS, ET CETERA.  EVIDENCE WAS PRESENTED THAT
A LARGE PROPORTION OF EMPLOYEES IN THE PROPOSED UNIT WERE MEMBERS OF
THE SAME UNION.  IT HAD TESTIMONY AS TO SIMILARITY AND DISSIMILARITY IN
TAILORING AND ALTERING BETWEEN THE MEN'S AND WOMEN'S ALTERATION ROOMS. 
THERE WAS EVIDENCE THAT THOSE WHO WORK ON MEN'S CLOTHING, SPEAKING
GENERALLY, BELONG TO A DIFFERENT UNION ORGANIZATION THAN THOSE WHO WORK
ON WOMEN'S CLOTHES.  THE BOARD CONSIDERED THE INTERCHANGE OF WORKERS
BETWEEN THE TWO GROUPS.  WE THINK THAT THERE WAS AMPLE TESTIMONY TO
SUPPORT THE BOARD'S CONCLUSION THAT THE EMPLOYEES OF THE TWO BUSHELING
ROOMS WERE AN APPROPRIATE UNIT, SINCE THESE EMPLOYEES HAD A DEGREE OF
SELF-ORGANIZATION AND A SPECIAL TRADE WHICH SUFFICIENTLY DIFFERENTIATED
THEM FROM OTHER EMPLOYEES. 

FORM OF BALLOT.  PETITIONER OBJECTS TO THE CERTIFICATION BECAUSE THE
BALLOT CONTAINED THE NAME OF THE ST. LOUIS JOINT COUNCIL, UNITED
RETAIL, WHOLESALE & DEPARTMENT STORE EMPLOYEES, AS A CANDIDATE FOR
BARGAINING REPRESENTATIVE FROM THE UNIT.  THIS WAS THE ORGANIZATION
WHICH WAS CERTIFIED.  IT HAD FILED THE PETITION FOR DETERMINATION OF
THE REPRESENTATIVE.  THE COUNCIL CLAIMED THAT MORE THAN 51% OF THE
EMPLOYEES IN THE SUGGESTED UNIT HAD DESIGNATED IT AS THEIR COLLECTIVE
BARGAINING REPRESENTATIVE.  THE BOARD DIRECTS WHAT NAMES GO ON THE
BALLOT.  UNLESS THERE IS A SHOWING OF A SUBSTANTIAL NUMBER OF EMPLOYEES
IN THE PROPOSED UNIT WHO HAVE BECOME MEMBERS OF AND SELECTED THE
PETITIONER AS THEIR BARGAINING REPRESENTATIVE, THE BOARD DOES NOT
ORDINARILY ORDER AN ELECTION.  FN4  THIS IS AN ADMINISTRATIVE POLICY OF
THE BOARD.  IN THIS CASE, ON THE JOINT COUNCIL'S PETITION FOR
CERTIFICATION, THE BOARD FOUND THAT THE COUNCIL HAD A MAJORITY OF THE
EMPLOYEES.  AS A MATTER OF FACT IT WAS A LOCAL UNION WHICH THE
EMPLOYEES HAD SELECTED AND JOINED.  THE BOARD POINTED OUT IN ITS
FINDING OF FACTS ON THE PETITION FOR AN ELECTION THAT THE JOINT COUNCIL
REPRESENTED THIS LOCAL AND SIMILAR LOCALS IN OTHER STORES. 

THE COMPANY SAYS THAT SOME EMPLOYEES MAY HAVE BEEN MISLED BY THE
BALLOT INTO THINKING THAT THE JOINT COUNCIL HAD A SUBSTANTIAL NUMBER OF
THE UNIT'S EMPLOYEES AS MEMBERS, BECAUSE ELECTIONS ARE NOT ORDINARILY
CALLED UNLESS THAT SITUATION EXISTS.  THE LOCAL WAS REPRESENTED BY THE
JOINT COUNCIL.  CF. LABOR BOARD V. FRANKS BROS. CO., 137 F.2D 989, 992,
AFFIRMED ON OTHER GROUNDS, FRANKS BROS. CO. V. LABOR BOARD, 321 U.S.
702.  THE JOINT COUNCIL WAS CHOSEN BY A MAJORITY OF THE EMPLOYEES OF
THE UNIT AND CERTIFIED.  IN THE CIRCUMSTANCES OF THIS ELECTION, WE SEE
NO BASIS FOR THE COMPANY'S OBJECTION TO THE CERTIFIED REPRESENTATIVE ON
THE GROUND OF POSSIBLE CONFUSION OF THE EMPLOYEES. 

ACTION ON WAGES.  THE BOARD FOUND THAT THE COMPANY INTERFERED WITH,
RESTRAINED AND COERCED ITS EMPLOYEES IN THE EXERCISE OF THE RIGHTS
GUARANTEED BY SEC. 7 OF THE ACT, UNDER THE CIRCUMSTANCES HEREIN
DETAILED, IN SEEKING THE NECESSARY APPROVAL (56 STAT. 765; EXECUTIVE
ORDER 9250, 7 FED. REG. 7871) ON AUGUST 30, 1943, OF THE NATIONAL WAR
LABOR BOARD FOR AN UPWARD WAGE ADJUSTMENT FOR A LARGE PROPORTION OF ITS
EMPLOYEES, INCLUDING THE EMPLOYEES OF THE UNIT HERE INVOLVED, WITHOUT
BARGAINING COLLECTIVELY ON THE SUBJECT OF THE WAGES WITH THE CERTIFIED
UNION.  A LETTER ACCOMPANIED THE REQUEST TO THE WAR LABOR BOARD WHICH
EXPLAINED THAT CERTAIN CRAFT EMPLOYEES, NOT HERE INVOLVED, WERE
EXCLUDED FROM THE APPLICATION FOR AUTHORITY TO INCREASE WAGES BECAUSE
THEY WERE COVERED BY COLLECTIVE BARGAINING AGREEMENTS.  THE LETTER WENT
ON TO SAY: 

"THE ST. LOUIS JOINT COUNCIL, UNITED RETAIL, WHOLESALE AND DEPARTMENT
STORE EMPLOYEES OF AMERICA, C.I.O.,  ...  HAS BEEN CERTIFIED BY THE
NATIONAL LABOR RELATIONS BOARD, BUT WE DO NOT REGARD THIS AS AN
APPROPRIATE UNIT AND HAVE CONSISTENTLY TAKEN THAT POSITION AND HAVE SO
NOTIFIED ALL PARTIES CONCERNED.  IT IS OUR INTENTION TO SUBMIT THAT
QUESTION TO THE COURTS, IF AND WHEN THE OCCASION ARISES.  WE HAVE NOT
RECOGNIZED THIS UNION AND HAVE NOT BARGAINED WITH IT FOR THE EMPLOYEES
IN DEPARTMENTS 280 OR 281 AND NO NEGOTIATIONS WITH THAT UNION ARE
PENDING.  IT IS INTENDED, HOWEVER, THAT THE EMPLOYEES IN DEPARTMENTS
280 AND 281 SHALL BE INCLUDED IN THIS APPLICATION. 

"WE DO NOT BELIEVE THAT ANY OF THE ORGANIZATIONS NAMED IN THE
APPLICATION, NOR THE ORGANIZATION NAMED ABOVE, HAVE ANY INTEREST
WHATEVER IN THE ENCLOSED APPLICATION.  HOWEVER, IF THE ORGANIZATION
NAMED ABOVE SHOULD OBJECT TO THE INCLUSION OF THE EMPLOYEES OF
DEPARTMENTS 280 AND 281 IN THE APPLICATION, YOU ARE ADVISED THAT SAID
APPLICATION MAY BE CONSIDERED AS HAVING BEEN AMENDED SO AS TO EXCLUDE
THOSE EMPLOYEES FROM THE APPLICATION."  THE NEXT MORNING THE EMPLOYEES
WERE TOLD OVER THE STORE ADDRESS SYSTEM OF THE APPLICATION FOR A WAGE
INCREASE FOR ALL EMPLOYEES, EXCEPT HIGHER PAID EXECUTIVES AND THOSE
EMPLOYEES "WHOSE SALARIES HAVE BEEN FIXED BY CLOSED SHOP AGREEMENTS." 
A SHORT TIME LATER ANOTHER REFERENCE TO THE APPLICATION WAS MADE OVER
THE ADDRESS SYSTEM.  A SIMILAR ANNOUNCEMENT APPEARED IN THE SEPTEMBER 3
ISSUE OF THE STORE PAPER.  THE CONDITIONAL OFFER TO EXCLUDE THE
EMPLOYEES OF THE UNIT WAS NOT REFERRED TO IN THE ANNOUNCEMENTS.  UPON
THESE FACTS THE BOARD FOUND A VIOLATION OF SEC. 8(1). 

THE COMPANY URGES THAT ITS REQUEST FOR AUTHORITY, WITHOUT NEGOTIATION
WITH THE CERTIFIED UNION AS TO THE APPLICATION TO THE WAR LABOR BOARD,
WAS NOT AN UNFAIR PRACTICE UNDER SEC. 8(1) BUT ONLY A NECESSARY RESULT
OF ITS POSITION ON NON-RECOGNITION OF THE CERTIFIED REPRESENTATIVE
BECAUSE THE COMPANY DID NOT AGREE WITH THE BOARD'S DETERMINATION OF THE
APPROPRIATE UNIT FOR THE SELECTION OF REPRESENTATIVES.  THE COMPANY
SAYS IT COULD NOT GIVE RECOGNITION TO THE CERTIFIED AGENT AND MAINTAIN
THIS POSITION. 

WE HAVE IN A PRECEDING DIVISION OF THIS OPINION STATED OUR CONCLUSION
THAT THE JOINT COUNCIL WAS A PROPERLY CERTIFIED BARGAINING
REPRESENTATIVE.  THEREFORE AT THE TIME OF THE REQUEST TO THE WAR LABOR
BOARD FOR AUTHORITY TO INCREASE WAGES, THE JOINT COUNCIL MUST BE
CONSIDERED AS A PROPERLY CERTIFIED BARGAINING AGENT.  COMPANY ACTION IN
REGARD TO IT MUST BE JUDGED IN THAT LIGHT EVEN THOUGH ITS ATTITUDE
TOWARD THE CERTIFICATION MADE ITS CHOICE DIFFICULT. 

THE JOINT COUNCIL WAS CERTIFIED ON JULY 12, 1943.  AFTER THE
ELECTION, THE COUNCIL HAD REQUESTED A CONFERENCE WITH THE COMPANY FOR
NEGOTIATING A CONTRACT TO COVER WAGES, HOURS AND WORKING CONDITIONS. 
THIS REQUEST WAS DECLINED ON JULY 19TH WITH THE STATEMENT THAT THE
COMPANY DID NOT AGREE WITH THE DECISION OF THE BOARD AND DESIRED TO
PRESERVE ITS FULL RIGHTS TO QUESTION THE RESULT AS IT "MAY SEE FIT." 
THE APPLICATION TO THE WAR LABOR BOARD FOLLOWED ON AUGUST 30TH. 

IT IS SETTLED LAW THAT THE LABOR RELATIONS ACT MAKES IT AN EMPLOYER'S
DUTY TO BARGAIN COLLECTIVELY ONLY WITH THE DULY RECOGNIZED OR
ACCREDITED REPRESENTATIVE OF THE EMPLOYEES.  DISREGARD OF THIS DUTY
VIOLATES SEC. 8(1) OF THE ACT.  SEC. 9(A).  MEDO CORP. V. LABOR BOARD,
321 U.S. 678, 683-84.  ANY OTHER CONCLUSION WOULD INFRINGE AN ESSENTIAL
PRINCIPLE OF COLLECTIVE BARGAINING.  SEE J.I. CASE CO. V. LABOR BOARD,
321 U.S. 332, 338.  EMPLOYER ACTION TO BRING ABOUT CHANGES IN WAGE
SCALES WITHOUT CONSULTATION AND NEGOTIATION WITH THE CERTIFIED
REPRESENTATIVE OF ITS EMPLOYEES CANNOT, WE THINK, LOGICALLY OR
REALISTICALLY, BE DISTINGUISHED FROM BARGAINING WITH INDIVIDUALS OR
MINORITIES.  THE FACT THAT THE APPLICATION TO THE WAR LABOR BOARD WAS
NOT THE ACTUAL INCREASE OF WAGES BUT A NECESSARY PRELIMINARY DOES NOT
MAKE UNILATERAL ACTION, ACCOMPANIED BY PUBLICATION OF THE STEP TAKEN TO
THE EMPLOYEES, ANY THE LESS OBJECTIONABLE.  THE APPLICATION TO THE WAR
LABOR BOARD MARKED A UNILATERAL DETERMINATION BY THE COMPANY THAT THE
EMPLOYEES OF THIS UNIT SHOULD HAVE THE SPECIFIC INCREASE DEEMED DUE
THEM BY THE COMPANY OR NONE AT ALL, IF THE BARGAINING AGENT SHOULD
OBJECT IN ACCORDANCE WITH THE LETTER QUOTED ABOVE.  THE EMPLOYER WAS
NOT GETTING INTO POSITION TO NEGOTIATE WITH THE AGENT.  HE DECLARED THE
CONTRARY AND PROPOSED THAT HE, AS EMPLOYER, WOULD MAKE THE INCREASE IF
PERMISSION WERE GRANTED.    TWO NATIONAL LABOR GROUPS HAD EACH
SEPARATELY SOUGHT FOR MONTHS TO ORGANIZE THE COMPANY.  ONE EFFORT TO
SECURE THE DESIGNATION OF A UNIT HAD FAILED.  THE PRESENT DESIGNATION
WAS MADE OVER THE PROTESTS OF THE COMPANY.  IT HAD URGED IN ITS MOTION
FOR RECONSIDERATION OF THE ORDER OF ELECTION: 

"THERE ARE TWO COMPETING LABOR ORGANIZATIONS SEEKING TO ORGANIZE THE
EMPLOYEES IN THIS STORE.  BY THIS DECISION ONE OF THEM IS GRANTED AN
ELECTION IN THE UNIT COMPOSED OF TWO DEPARTMENTS.  THERE ARE SOME 350
DEPARTMENTS IN THIS STORE AND IF THIS EMPLOYER IS TO BE CONFRONTED WITH
ELECTIONS AND SEPARATE BARGAINING FOR EACH ONE OR TWO DEPARTMENTS IT
WILL BE AN ENDLESS AND INTOLERABLE INTERFERENCE WITH STORE OPERATIONS,
WHICH SHOULD NOT BE PERMITTED."  BY GOING AHEAD WITH WAGE ADJUSTMENTS
WITHOUT NEGOTIATION WITH THE BARGAINING AGENT, IT TOOK A STEP WHICH
JUSTIFIED THE CONCLUSION OF THE BOARD AS TO THE VIOLATION OF SEC.
8(1).  SUCH UNILATERAL ACTION MINIMIZES THE INFLUENCE OF ORGANIZED
BARGAINING.  IT INTERFERES WITH THE RIGHT OF SELF-ORGANIZATION BY
EMPHASIZING TO THE EMPLOYEES THAT THERE IS NO NECESSITY FOR A
COLLECTIVE BARGAINING AGENT.  IF SUCCESSFUL IN SECURING APPROVAL FOR
THE PROPOSED INCREASE OF WAGES, IT MIGHT WELL, AS THE BOARD POINTS OUT,
BLOCK THE BARGAINING REPRESENTATIVE IN SECURING FURTHER WAGE
ADJUSTMENTS. 

IT MAY BE THAT THE COMPANY SOUGHT ONLY TO PRESERVE ITS OPPORTUNITY TO
CONTEST THE CERTIFICATION OF THE UNIT.  IT IS POINTED OUT THAT THE
INCREASES FOR WHICH APPROVAL WAS SOUGHT COVERED SEVERAL THOUSAND
EMPLOYEES AND THAT IT IS HARDLY CONCEIVABLE THAT A GENERAL INCREASE FOR
SO MANY WOULD BE SOUGHT TO INJURE SO FEW.  BUT THE BOARD'S CONTENTION
IS NOT THAT THE APPLICATION, AS A WHOLE, WAS FOR THE PURPOSE OF
UNDERMINING THE COUNCIL.  ITS CONCLUSION WAS THAT THE MANNER OF
PRESENTING AND PUBLICIZING THE APPLICATION HAD THE EFFECT OF COERCING
THE EMPLOYEES.  INSTEAD OF TAKING UP THE INCREASE OF THIS UNIT'S WAGES
WITH THE COUNCIL, FILING A JOINT APPLICATION, WITH RESERVATION OF THE
COMPANY'S LEGAL RIGHT TO CHALLENGE THE CERTIFICATION OF THE BARGAINING
AGENT WHEN ANY COMPLAINT MIGHT BE FILED FOR REFUSAL TO BARGAIN
COLLECTIVELY, OR, OMITTING THE EMPLOYEES OF THE QUESTIONED UNIT, IF THE
COUNCIL WOULD NOT JOIN IN SUCH AN APPLICATION, THE COMPANY CHOSE TO
IGNORE THE PROPERLY CERTIFIED AGENT.  NOR CAN WE AGREE THAT IF, UNDER
THE PROCEDURE SUGGESTED, THE EMPLOYEES IN THIS UNIT HAD BEEN OMITTED
FROM THE EMPLOYEES WHO RECEIVED INCREASES, THERE WOULD HAVE BEEN DANGER
THAT THE NATIONAL LABOR RELATIONS BOARD WOULD HAVE CONSIDERED SUCH
OMISSION AN UNFAIR LABOR PRACTICE.  WHATEVER WEIGHT AN OMISSION MIGHT
HAVE UNDER OTHER CIRCUMSTANCES, UNDER THESE IT WOULD HAVE FOLLOWED AN
EFFORT TO AVOID INJURY TO THE EMPLOYEES AND COULD NOT PROPERLY BE HELD
AN INTERFERENCE WITH THEIR RIGHTS. 

WE FIND NO BASIS FOR ELIMINATING THE ANNOUNCEMENTS OR THE PUBLICATION
FROM CONSIDERATION ON THE GROUND THAT THEY WERE AN EXERCISE OF THE
RIGHT OF FREE EXPRESSION, SECURED BY THE FIRST AMENDMENT.  THEY ARE A
PART OF THE TOTALITY OF COMPANY ACTIVITIES AND WERE PROPERLY RECEIVED
BY THE BOARD AS EVIDENCE OF THE UNILATERAL ACTION OF THE EMPLOYER. 
LABOR BOARD V. VIRGINIA POWER CO., 314 U.S. 469, 477. 

BREADTH OF ORDER.  PETITIONER COMPLAINS HERE OF THE REFUSAL OF THE
COURT TO MODIFY PARAGRAPH 1(B) OF THE BOARD'S ORDER TO THE EXTENT WHICH
PETITIONER EXPLICITLY ASKED FOR BELOW IN ITS PETITION FOR REHEARING. 
FN5  THAT PARAGRAPH, TOGETHER WITH ANOTHER WHICH ENJOINS REFUSAL TO
BARGAIN, IS SET OUT BELOW.  FN6  PETITIONER ARGUES THAT THE BROAD,
BLANKET PROVISIONS OF 1(B) ARE INVALID, EVEN THOUGH, OF COURSE,
RESTRICTED TO THE FEW EMPLOYEES IN THE AFFECTED UNIT.  THE LANGUAGE OF
THE PROHIBITION COVERS INTERFERENCES WITH ALL THE RIGHTS OF THESE
EMPLOYEES WHICH ARE SECURED BY SEC. 7 OF THE LABOR ACT, WHILE AT THE
MOST, PETITIONER URGES, THE BOARD HAS FOUND AND THE CIRCUIT COURT
SUSTAINED ONLY TWO UNFAIR LABOR PRACTICES BY PETITIONER, "(1) REFUSAL
TO BARGAIN AND (2) THE STOREWIDE SALARY INCREASE."  BOTH OF THESE, IT
IS ASSERTED, ARE BUT INCIDENTS IN PETITIONER'S EFFORT TO OBTAIN
JUDICIAL REVIEW OF THE BOARD'S CERTIFICATION.  AS THE BOARD'S SELECTION
OF AN APPROPRIATE UNIT TO CHOOSE THE EMPLOYEES' BARGAINING
REPRESENTATIVE AND THE BOARD'S SUBSEQUENT CERTIFICATION OF THE
REPRESENTATIVE CHOSEN, SEC. 9, ARE NOT JUDICIALLY REVIEWABLE DIRECTLY,
PETITIONER TAKES THE POSITION THAT IT COMMITTED THE UNFAIR LABOR
PRACTICE OF REFUSING TO BARGAIN WITH AN ACCREDITED UNION MERELY TO OPEN
THE WAY FOR JUDICIAL REVIEW OF THE CERTIFICATION.  FN7  CONSEQUENTLY
PETITIONER URGES THE CASE AND DESIST ORDER SHOULD BE NO BROADER THAN
THE REFUSAL TO BARGAIN WHICH IS COVERED BY PARAGRAPH 1(A), NOTE 6
SUPRA, WITH THE ADDITION OF "OR FROM ANY OTHER ACTS IN ANY MANNER
INTERFERING WITH THE REPRESENTATIVE'S EFFORTS TO NEGOTIATE."  THE
SUGGESTED ADDITION IS TAKEN FROM THE EXPRESS PUBLISHING COMPANY CASE,
312 U.S. AT 438.  THUS THE BREADTH OF PARAGRAPH 1(B) OF THE BOARD'S
ORDER IS SHARPLY CHALLENGED AS BEING BEYOND THE POWER OF THE BOARD IN
VIEW OF THE EVIDENCE AND FINDINGS IN THIS CASE. 

THE SCOPE OF INJUNCTIONS WHICH FOLLOW NATIONAL LABOR RELATIONS BOARD
DETERMINATIONS IS IMPORTANT TO EMPLOYER AND EMPLOYEE.  WHILE CONTEMPT
PROCEEDINGS CAN BE INSTITUTED ONLY BY THE BOARD AND IN THE PUBLIC
INTEREST,  FN8  THE POSSIBILITY OF CONTEMPT PENALTIES BY THE COURT FOR
FUTURE LABOR ACT VIOLATIONS ADDS SUFFICIENT ADDITIONAL SANCTIONS TO
MAKE MATERIAL THE DIFFERENCE BETWEEN ENJOINED AND NON-ENJOINED EMPLOYER
ACTIVITIES.  FN9  THE DECISION IN THE EXPRESS PUBLISHING COMPANY CASE
EMPHASIZED THIS ISSUE.  FN10  THE PARAGRAPH UNDER ATTACK IN THAT CASE
WAS SUBSTANTIALLY LIKE THE PARAGRAPH HERE ATTACKED. 

THE TEST OF THE PROPER SCOPE OF A CEASE AND DESIST ORDER IS WHETHER
THE BOARD MIGHT HAVE REASONABLY CONCLUDED FROM THE EVIDENCE THAT SUCH
AN ORDER WAS NECESSARY TO PREVENT THE EMPLOYER BEFORE IT "FROM ENGAGING
IN ANY UNFAIR LABOR PRACTICE AFFECTING COMMERCE."  SEC. 10(A).  FN11
EQUITY HAS LONG BEEN ACCUSTOMED IN OTHER FIELDS TO REACH CONCLUSIONS AS
TO THE SCOPE OF ORDERS WHICH ARE NECESSARY TO PREVENT INTERFERENCES
WITH THE RIGHTS OF THOSE WHO SEEK THE COURTS' PROTECTION.  FN12
INJUNCTIONS IN BROAD TERMS ARE GRANTED EVEN IN ACTS OF THE WIDEST
CONTENT, WHEN THE COURT DEEMS THEM ESSENTIAL TO ACCOMPLISH THE PURPOSES
OF THE ACT.  FN13  WE THINK THAT THE BOARD HAS THE SAME POWER TO
DETERMINE THE NEEDED SCOPE OF CEASE AND DESIST ORDERS UNDER THE
NATIONAL LABOR RELATIONS ACT THAT COURTS HAVE, WHEN AUTHORIZED TO ISSUE
INJUNCTIONS, IN OTHER LITIGATION. 

THAT POWER OF THE BOARD IS SUBJECT TO REVIEW UNDER SEC. 10.  WHILE
THE BOARD HAS BEEN DELEGATED INITIALLY THE EXCLUSIVE AUTHORITY TO
PREVENT UNFAIR LABOR PRACTICES,  FN14  COURTS, WHICH ARE CALLED UPON TO
ENFORCE SUCH ORDERS BY THEIR OWN DECREES, MAY EXAMINE ITS SCOPE TO SEE
WHETHER, ON THE EVIDENCE, THEY GO SO BEYOND THE AUTHORITY OF THE BOARD
AS TO REQUIRE MODIFICATION AS A MATTER OF LAW BEFORE ENFORCEMENT.  SEC.
10(A) AND (E).  THE EXPRESS PUBLISHING COMPANY CASE DECLARED: "TO
JUSTIFY AN ORDER RESTRAINING OTHER VIOLATIONS IT MUST APPEAR THAT THEY
BEAR SOME RESEMBLANCE TO THAT WHICH THE EMPLOYER HAS COMMITTED OR THAT
DANGER OF THEIR COMMISSION IN THE FUTURE IS TO BE ANTICIPATED FROM THE
COURSE OF HIS CONDUCT IN THE PAST."  P. 437.  WE THINK THAT, IN THE
CIRCUMSTANCES OF THIS PROCEEDING, ALTHOUGH THERE IS A VIOLATION OF SEC.
8(1) AS WELL AS 8(5), THE VIOLATION OF 8(1) IS SO INTERTWINED WITH THE
REFUSAL TO BARGAIN WITH A UNIT ASSERTED TO BE CERTIFIED IMPROPERLY
THAT, WITHOUT A CLEAR DETERMINATION BY THE BOARD OF AN ATTITUDE OF
OPPOSITION TO THE PURPOSES OF THE ACT TO PROTECT THE RIGHTS OF
EMPLOYEES GENERALLY, THE DECREE NEED NOT ENJOIN COMPANY ACTIONS WHICH
ARE NOT DETERMINED BY THE BOARD TO BE SO MOTIVATED. 

THIS CONCLUSION REQUIRES A MODIFICATION OF THE DECREE SO THAT THE
INJUNCTION WILL NOT APPLY GENERALLY TO ALL VIOLATIONS UNDER THE ACT OF
THE RIGHTS OF THE EMPLOYEES IN DEPARTMENTS 280 AND 281, BUT WILL APPLY
TO OTHER INTERFERENCES, IN VIOLATION OF SEC. 8(1) OR OTHERWISE, WITH
THE COUNCIL'S REPRESENTATION OF THESE EMPLOYEES.  THERE SHOULD BE ADDED
TO PARAGRAPH 1(A) OF THE DECREE, NOTE 6 SUPRA, THE FOLLOWING CLAUSE,
"OR FROM ANY OTHER ACTS IN ANY MANNER INTERFERING WITH THE
REPRESENTATIVE'S EFFORTS TO NEGOTIATE FOR OR REPRESENT THE ABOVE NAMED
EMPLOYEES AS BARGAINING AGENT."  PARAGRAPH 1(B) SHOULD BE STRICKEN. 
TEXTUAL CORRECTIONS SHOULD BE MADE TO CONFORM TO THESE CHANGES.  AS
THUS MODIFIED, THE DECREE IS AFFIRMED. 

FN1  49 STAT. 452-53.  "SEC.  7.  EMPLOYEES SHALL HAVE THE RIGHT TO
SELFORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, TO
BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, AND
TO ENGAGE IN CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION. 

"SEC. 8.  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 7. 

     .         .         .         .         . 

"(5)  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A)." 

OPINION OF THE C.C.A., LABOR BOARD V. MAY DEPARTMENT STORES CO., 146
F.2D 66; DETERMINATION OF NATIONAL LABOR RELATIONS BOARD, 53 N.L.R.B.
1366. 

FN2  49 STAT. 453, SEC. 9.  "(B) THE BOARD SHALL DECIDE IN EACH CASE
WHETHER, IN ORDER TO INSURE TO EMPLOYEES THE FULL BENEFIT OF THEIR
RIGHT TO SELF-ORGANIZATION AND TO COLLECTIVE BARGAINING, AND OTHERWISE
TO EFFECTUATE THE POLICIES OF THIS ACT, THE UNIT APPROPRIATE FOR THE
PURPOSES OF COLLECTIVE BARGAINING SHALL BE THE EMPLOYER UNIT, CRAFT
UNIT, PLANT UNIT, OR SUBDIVISION THEREOF." 

FN3  S. REP. NO. 573, 74TH CONG., 1ST SESS., P. 14. 

FN4 IN RE HOUSTON SHIPBUILDING CORP., 41 N.L.R.B. 638; IN RE AMERICAN
MANUFACTURING CO., 41 N.L.R.B. 995. 

FN5  SECTION 10(E) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 454,
PRECLUDES THE CONSIDERATION BY THE CIRCUIT COURT OF ANY OBJECTION NOT
RAISED BEFORE THE BOARD, UNLESS SUCH FAILURE IS EXCUSABLE BECAUSE OF
"EXTRAORDINARY CIRCUMSTANCES."  THIS COURT THEREFORE IS AUTHORIZED, SUA
SPONTE, TO APPRAISE THE RECORD TO DETERMINE THE POWER OF THE CIRCUIT
COURT TO REVIEW PARAGRAPH 1(B) OF THE BOARD'S ORDER.  LABOR BOARD V.
BRADFORD DYEING ASSN., 310 U.S. 318, 341. 

IN THIS PROCEEDING THE PARAGRAPH FIRST APPEARED IN THE INTERMEDIATE
REPORT OF THE BOARD'S EXAMINER.  THE PETITIONER EXCEPTED SPECIFICALLY
TO PARAGRAPH 1(B) OF THE PROPOSED ORDER AS "NOT SUPPORTED OR JUSTIFIED
BY THE RECORD."  THIS WAS THE ONLY OBJECTION MADE TO THE PARAGRAPH IN
QUESTION IN THE RECORD OF THE PROCEEDINGS BEFORE THE BOARD.  THE
EXAMINER'S RECOMMENDATION WAS ADOPTED BY THE BOARD IN ITS ORDER. 
UNLESS THIS OBJECTION WAS SUFFICIENTLY SPECIFIC TO APPRISE THE BOARD OF
THE QUESTION NOW PRESENTED, THE CIRCUIT COURT HAD NO POWER TO CONSIDER
IT.  MARSHALL FIELD & CO. V. LABOR BOARD, 318 U.S. 253.  IN THE
MARSHALL FIELD CASE WE DECLINED TO CONSIDER AN ISSUE AS TO THE POWER OF
THE BOARD TO GRANT A BACK PAY ORDER WHICH WAS CONSTRUED AS BARRING THE
DEDUCTION OF UNEMPLOYMENT COMPENSATION FROM THE AWARD, ALTHOUGH THE
QUESTION WAS RAISED BY ANSWER AND DECIDED BY THE CIRCUIT COURT OF
APPEALS, LABOR BOARD V. MARSHALL FIELD & CO., 129 F.2D 169.  OUR REASON
FOR REFUSING REVIEW WAS THAT THE ONLY OBJECTION TO THE BOARD'S POWER
WAS ERROR BY THE EXAMINER "IN MAKING EACH AND EVERY RECOMMENDATION." 
THE REMEDY RECOMMENDED BY THE EXAMINER WAS THE USUAL BACK PAY LESS
EARNINGS WITHOUT ANY WORD IN THE REPORT AS TO THE UNEMPLOYMENT
COMPENSATION.  THIS WAS TOO GENERAL TO APPRISE THE BOARD OF AN
INTENTION TO BRING UP THE QUESTION OF THE DEDUCTIBILITY OF THE
COMPENSATION AND OF THE NECESSITY FOR FINDINGS. 

ALTHOUGH IT FALLS SHORT OF DESIRABLE SPECIFICITY, WE THINK THE
OBJECTION WAS SUFFICIENT IN THE PRESENT CASE.  NO FURTHER FINDINGS ARE
NEEDED.  THE PARAGRAPH IN ISSUE IS A STANDARD FORM OF ORDER FREQUENTLY
USED BY THE BOARD; THE SAME QUESTION WITH RESPECT TO AN ALMOST
IDENTICAL ORDER WAS CONSIDERED BY THIS COURT IN LABOR BOARD V. EXPRESS
PUB. CO., 312 U.S. 426, AND HAS BEEN A FREQUENT SUBJECT OF DISPUTE IN
THE CIRCUIT COURTS (SEE N. 10 INFRA).  THESE CIRCUMSTANCES COUPLED WITH
AN OBJECTION THAT THE ORDER WAS "NOT SUPPORTED OR JUSTIFIED BY THE
RECORD" PUT THE BOARD ON NOTICE OF THE ISSUE NOW PRESENTED. 

FN6  DECREED THAT MAY DEPARTMENT STORES COMPANY, ETC., SHALL:  "1. 
CEASE AND DESIST FROM:  (A) REFUSING TO BARGAIN COLLECTIVELY WITH ST.
LOUIS JOINT COUNCIL, UNITED RETAIL & DEPARTMENT STORE EMPLOYEES OF
AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS, AS
THE EXCLUSIVE REPRESENTATIVE OF ALL ITS EMPLOYEES AT ITS ST. LOUIS
STORE ENGAGED IN THE BUSHELING ROOM, SECOND FLOOR, DEPARTMENT 280, AND
IN THE BUSHELING ROOM, BASEMENT, DEPARTMENT 281, INCLUDING REGULAR
EXTRA EMPLOYEES IN THESE DEPARTMENTS, BUT EXCLUDING THE TWO FOREMEN AND
ALL OTHER EMPLOYEES OF THE RESPONDENT; 

"(B)  IN ANY OTHER MANNER INTERFERING WITH, RESTRAINING, OR COERCING
ITS EMPLOYEES WHO ARE REFERRED TO IN PARAGRAPH 1(A) IN THE EXERCISE OF
THEIR RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR
ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR
OWN CHOOSING, AND TO ENGAGE IN CONCERTED ACTIVITIES, FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION, AS GUARANTEED
IN SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT." 

FN7  SEE AMERICAN FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. 401;
PITTSBURGH PLATE GLASS CO. V. LABOR BOARD, 313 U.S. 146; INLAND EMPIRE
COUNCIL V. MILLIS, 325 U.S. 697. 

FN8  AMALGAMATED WORKERS V. EDISON CO., 309 U.S. 261, 269. 

FN9  SEE FOR BUSINESS OPERATIONS UNDER CONTEMPT ORDERS 41 COLUMBIA L.
REV. AT 913. 

FN10  THE PROBLEM OF THE SCOPE OF INJUNCTION DEALT WITH IN LABOR
BOARD V. EXPRESS PUBLISHING CO., 312 U.S. 426, HAS RECENTLY RECEIVED
CAREFUL CONSIDERATION BY JUDGES AND WRITERS.  41 COLUMBIA L. REV. 911;
29 GEORGETOWN L.J. 1026; 53 HARVARD L. REV. 472; 23 BOSTON UNIVERSITY
L. REV. 447; 54 YALE L.J. 141.    ILLUSTRATIVE OF THE DECISIONS IN THE
CIRCUIT COURTS ARE THE FOLLOWING CASES: 

1.  NATIONAL LABOR RELATIONS BOARD 

(A)  UPHOLDING A GENERAL SEC. 8(1) ORDER ON THE BASIS OF A SINGLE
UNFAIR LABOR PRACTICE (THE NATURE OF THE UNFAIR PRACTICES IS GIVEN IN
BRACKETS).  - LABOR BOARD V. HIGHLAND PARK MFG. CO., 110 F.2D
632(C.C.A. 4)(SEC.  8(5)); ART METALS CONST. CO. V. BOARD, 110 F.2D
148(C.C.A. 2)(SEC.  8(5)); WILSON & CO. V. BOARD, 124 F.2D 845(C.C.A.
7)(SEC.  8(3)); LABOR BOARD V. SUNBEAM ELECTRIC MFG. CO., 133 F.2D
856(C.C.A. 7)(SEC.  8(1)); LABOR BOARD V. STANDARD OIL CO., 138 F.2D
885(C.C.A. 2)(SEC.  8(2)). 

(B) UPHOLDING A GENERAL SEC. 8(1) ORDER WHERE THERE WAS MORE THAN ONE
UNFAIR LABOR PRACTICE.  - LABOR BOARD V. BOSS MFG. CO., 107 F.2D
574(C.C.A. 7)(SECS.  8(1), 8(3), 8(5)); LABOR BOARD V. REED & PRINCE
MFG. CO., 118 F.2D 874(C.C.A. 1)(SECS.  8(1), 8(3), 8(5)); F.W.
WOOLWORTH CO. V. BOARD, 121 F.2D 658(C.C.A. 2)(SECS.  8(1), 8(3));
BOARD V. ALGOMA NET CO., 124 F.2D 730(C.C.A. 7)(SECS.  8(1), 8(3));
LABOR BOARD V. BALDWIN LOCOMOTIVE WORKS, 128 F.2D 39(C.C.A. 3)(SECS. 
8(1), 8(2), 8(3), 8(4)); LABOR BOARD V. BREZNER TANNING CO., 141 F.2D
62(C.C.A. 1)(SECS.  8(1), 8(3)); IDAHO POTATO GROWERS V. BOARD, 144
F.2D 295(C.C.A. 9)(SECS.  8(3), 8(5)). 

(C)  LIMITING A SEC. 8(1) ORDER BASED ON A SINGLE UNFAIR LABOR
PRACTICE TO ACTS SPECIFICALLY CONDEMNED.  - GLOBE COTTON MILLS V.
BOARD, 103 F.2D 2D 91(C.C.A. 5)(SEC.  8(5)); LABOR BOARD V. SWIFT &
CO., 108 F.2D 988(C.C.A. 7)(SEC.  8(2)); MCQUAY-NORRIS MFG. CO. V.
BOARD, 119 F.2D 1009(C.C.A. 7)(SEC.  8(5)); LABOR BOARD V. NEWARK
MORNING LEDGER CO., 120 F.2D 262(C.C.A. 3)(SEC.  8(3)); LABOR BOARD V.
BURRY BISCUIT CORP., 123 F.2D 540(C.C.A. 7)(SEC.  8(2)); LABOR BOARD V.
STONE, 125 F.2D 752(C.C.A. 7)(SEC.  8(1)); COMMONWEALTH EDISON CO. V.
BOARD, 135 F.2D 891(C.C.A. 7)(SEC.  8(2)); CONSOLIDATED AIRCRAFT CORP.
V. BOARD, 141 F.2D 785(C.C.A. 9)(SEC.  8(1)); LABOR BOARD V. WALT
DISNEY PRODUCTIONS, 146 F.2D 44(C.C.A. 9)(SEC.  8(3)); LABOR BOARD V.
LIPSHUTZ, 149 F.2D 141(C.C.A. 5)(SEC.  8(1)). 

(D)  LIMITING A SEC. 8(1) ORDER WHERE THERE WAS MORE THAN ONE UNFAIR
LABOR PRACTICE.  - PRESS CO. V. BOARD, 73 APP. D.C. 103, 118 F.2D
937(SECS.  8(1), 8(3)); LABOR BOARD V. GROWER-SHIPPER VEGETABLE ASSN.,
122 F.2D 368(C.C.A. 9)(SECS.  8(1), 8(3)); WILSON & CO. V. BOARD, 123
F.2D 411(C.C.A. 8)(SECS.  8(1), 8(2), 8(3)); LABOR BOARD V. SERVEL,
INC., 149 F.2D 542(C.C.A. 7)(SECS.  8(1), 8(3)). 

2.  OFFICE OF PRICE ADMINISTRATION 

A SIMILAR SITUATION PREVAILS WITH RESPECT TO THE USE OF INJUNCTIONS
TO RESTRAIN VIOLATIONS OF REGULATIONS ISSUED UNDER THE EMERGENCY PRICE
CONTROL ACT, 56 STAT. 23. 

(A)  SUSTAINING GENERAL INJUNCTIONS ON THE BASIS OF PARTICULAR
VIOLATIONS OF A REGULATION.  - BOWLES V. MONTGOMERY WARD & CO., 143
F.2D 2D 38(C.C.A. 7)(PRELIMINARY INJUNCTION AGAINST VIOLATION OF ANY
PRICE REGULATION FOR VIOLATION OF SEVERAL PROVISIONS OF ONE REGULATION
SUSTAINED). 

(B)  SUSTAINING LIMITED INJUNCTIONS.  - BOWLES V. TOWN HALL GRILL,
145 F.2D 680(C.C.A. 1)(VIOLATION OF RESTAURANT CEILING PRICES ON
POULTRY, LOBSTER, GIN ITEMS; INJUNCTION LIMITED TO SUCH ITEMS
SUSTAINED); BOWLES V. SACHER, 146 F.2D 186(C.C.A. 2)(SUSTAINING
PRELIMINARY INJUNCTION LIMITED TO PARTICULAR TYPE OF VIOLATION
PROVED). 

3.  FEDERAL TRADE COMMISSION 

(A)  ENFORCING OR AFFIRMING ORDER BROADER THAN SPECIFIC ACTS
COMPLAINED OF. - OSTLER CANDY CO. V. F.T.C., 106 F.2D 962(C.C.A. 10);
HERSHEY CHOCOLATE CORP. V. F.T.C., 121 F.2D 968(C.C.A. 3); EUGENE
DIETZGEN CO. V. F.T.C., 142 F.2D 321(C.C.A. 7). 

(B)  LIMITING ORDERS TO SPECIFIC ACTS.  - F.T.C. V. BEECHNUT PACKING
CO., 257 U.S. 441; F.T.C. V. A. MCLEAN & SON, 84 F.2D 910(C.C.A. 7);
HELEN ARDELLE, INC. V. F.T.C., 101 F.2D 718(C.C.A. 9). 

FN11  ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 461; UNION
PACIFIC R. CO. V. UNITED STATES, 313 U.S. 450, 470; UNITED STATES V.
BAUSCH & LOMB CO., 321 U.S. 707, 724. 

FN12  HECHT CO. V. BOWLES, 321 U.S. 321, 328; WYOMING V. COLORADO,
286 U.S. 494, 508. 

FN13  SHERMAN ACT - STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1,
77: 

"IT MAY BE CONCEDED THAT ORDINARILY WHERE IT WAS FOUND THAT ACTS HAD
BEEN DONE IN VIOLATION OF THE STATUTE, ADEQUATE MEASURE OF RELIEF WOULD
RESULT FROM RESTRAINING THE DOING OF SUCH ACTS IN THE FUTURE.  SWIFT V.
UNITED STATES, 196 U.S. 375.  BUT IN A CASE LIKE THIS, WHERE THE
CONDITION WHICH HAS BEEN BROUGHT ABOUT IN VIOLATION OF THE STATUTE, IN
AND OF ITSELF, IS NOT ONLY A CONTINUED ATTEMPT TO MONOPOLIZE, BUT ALSO
A MONOPOLIZATION, THE DUTY TO ENFORCE THE STATUTE REQUIRES THE
APPLICATION OF BROADER AND MORE CONTROLLING REMEDIES."  "SO FAR AS THE
OWNERS OF THE STOCK OF THE SUBSIDIARY CORPORATIONS AND THE CORPORATIONS
THEMSELVES WERE CONCERNED AFTER THE STOCK HAD BEEN TRANSFERRED, SEC. 6
OF THE DECREE ENJOINED THEM FROM IN ANY WAY CONSPIRING OR COMBINING TO
VIOLATE THE ACT OR TO MONOPOLIZE OR ATTEMPT TO MONOPOLIZE IN VIRTUE OF
THEIR OWNERSHIP OF THE STOCK TRANSFERRED TO THEM, AND PROHIBITED ALL
AGREEMENTS BETWEEN THE SUBSIDIARY CORPORATIONS OR OTHER STOCKHOLDERS IN
THE FUTURE, TENDING TO PRODUCE OR BRING ABOUT FURTHER VIOLATIONS OF THE
ACT."  P. 79. 

"WE SO THINK, SINCE WE CONSTRUE THE SIXTH PARAGRAPH OF THE DECREE,
NOT AS DEPRIVING THE STOCKHOLDERS OR THE CORPORATIONS, AFTER THE
DISSOLUTION OF THE COMBINATION, OF THE POWER TO MAKE NORMAL AND LAWFUL
CONTRACTS OR AGREEMENTS, BUT AS RESTRAINING THEM FROM, BY ANY DEVICE
WHATEVER, RECREATING DIRECTLY OR INDIRECTLY THE ILLEGAL COMBINATION
WHICH THE DECREE DISSOLVED."  P. 81. 

LOCAL 167 V. UNITED STATES, 291 U.S. 293, 299: 

"APPELLANTS SEEK ELIMINATION OF THE PROVISION OF THE DECREE THAT
ENJOINS THEM FROM USING ANY OF THE OFFICES OR POSITIONS IN LOCAL 167 OR
THE SHOCHTIM UNION 'FOR THE PURPOSE OF COERCING MARKETMEN TO BUY
POULTRY, POULTRY FEED, OR OTHER COMMODITIES NECESSARY TO THE POULTRY
BUSINESS FROM PARTICULAR SELLERS THEREOF.'  THE UNITED STATES IS
ENTITLED TO EFFECTIVE RELIEF.  TO THAT END THE DECREE SHOULD ENJOIN
ACTS OF THE SORT THAT ARE SHOWN BY THE EVIDENCE TO HAVE BEEN DONE OR
THREATENED IN FURTHERANCE OF THE CONSPIRACY.  IT SHOULD BE BROAD ENOUGH
TO PREVENT EVASION.  IN FRAMING ITS PROVISIONS DOUBTS SHOULD BE
RESOLVED IN FAVOR OF THE GOVERNMENT AND AGAINST THE CONSPIRATORS. 
WARNER & CO. V. LILLY & CO., 265 U.S. 526, 532....  WHEN REGARD IS HAD
TO THE EVIDENCE DISCLOSING THE NUMEROUS PURPOSES OF THE CONSPIRACY AND
THE ACTS OF COERCION CUSTOMARILY EMPLOYED BY DEFENDANTS, IT IS PLAIN
THAT THE CLAUSE REFERRED TO CANNOT BE CONDEMNED AS UNNECESSARY OR
WITHOUT WARRANT." 

SEE AMERICAN FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S. 184, 194. 

FN14  S. REP. NO. 573, 74TH CONG., 1ST SESS., P. 15; H. REP. NO.
1147, 74TH CONG., 1ST SESS., P. 23. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, CONCURRING IN PART. 

I CANNOT AGREE, AS THE COURT SEEMS TO SAY AND THE LABOR BOARD FOUND,
FN1  THAT THERE WERE TWO UNFAIR PRACTICES IN THIS CASE, (1) REFUSAL TO
BARGAIN, CONTRARY TO SEC. 8(5); AND (2) INTERFERENCE, RESTRAINT AND
COERCION OF EMPLOYEES IN VIOLATION OF SEC. 8(1).  I THINK ONLY ONE
UNFAIR LABOR PRACTICE WAS SHOWN, NAMELY, REFUSAL TO BARGAIN; AND FOR
THAT REASON I THINK THE BOARD'S ORDER MUST BE MODIFIED TO ELIMINATE THE
RESTRAINTS BASED ON ITS FINDING OF VIOLATION OF SEC. 8(1), AS THE
EXPRESS PUBLISHING COMPANY CASE, 312 U.S. 426, REQUIRES IN SUCH A
SITUATION. 

I AM UNABLE TO UNDERSTAND THE MAJORITY'S APPLICATION OF THAT CASE TO
A SITUATION IN WHICH THE BOARD HAS FOUND THERE WERE TWO DIFFERENT AND
SUBSTANTIAL VIOLATIONS OF THE ACT.  THE COURT DOES NOT HOLD TO THE
CONTRARY OR RULE THAT EITHER FINDING WAS UNSUPPORTED BY THE EVIDENCE. 
RATHER IT SEEMS TO APPROVE AND SUSTAIN BOTH.  YET IT MODIFIES, AS I
THINK AMBIGUOUSLY,  FN2  THE RELIEF WHICH THE BOARD FOUND APPROPRIATE
TO PREVENT A REPETITION OF THE INTERFERENCE, COERCION AND RESTRAINT IT
DETERMINED HAD BEEN INFLICTED UPON THE EMPLOYEES, IN ADDITION TO THE
REFUSAL TO BARGAIN.  THE EXPRESS PUBLISHING CASE COVERS NO SUCH
SITUATION.  IT WAS LIMITED TO ONE WHERE THE BOARD HAD IMPOSED BOTH
TYPES OF RESTRAINT UPON A FINDING ONLY OF REFUSAL TO BARGAIN.  FN3 

IT IS APPOSITE TO INQUIRE, THEREFORE, WHETHER THAT CASE HAS NOW BEEN
EXPANDED TO FORBID THE BOARD TO IMPOSE BOTH TYPES OF RESTRAINT WHERE IT
HAS FOUND BOTH KINDS OF VIOLATION AND NEITHER FINDING IS OVERTURNED. 
IF SO, I THINK THE RESULT SQUARELY CONFLICTS WITH REPEATED DECISIONS,
REFLECTED IN THE LANGUAGE OF THE OPINION IN THE EXPRESS PUBLISHING CASE
ITSELF, THAT "HAVING FOUND THE ACTS WHICH CONSTITUTE THE UNFAIR LABOR
PRACTICE THE BOARD IS FREE TO RESTRAIN THE PRACTICE AND OTHER LIKE OR
RELATED UNLAWFUL ACTS."  312 U.S. 426, 436.  FN4 

IT IS IMPORTANT FOR THE ADMINISTRATION OF THE ACT TO KNOW WHETHER THE
BOARD IS TO BE FREE TO ADAPT THE REMEDY TO FIT THE EVIL IT HAS FOUND TO
EXIST, AS THE STATUTE COMMANDS, SEC. 10(C); OR, ON THE CONTRARY, ITS
REMEDY THUS ADAPTED MAY BE STRICKEN DOWN OR MODIFIED ALTHOUGH THE
FINDING WHICH JUSTIFIES IT IS APPROVED.  THAT, IN MY JUDGMENT, GOES
BEYOND CORRECTION OF ABUSE OF THE BOARD'S DISCRETION AND SUBSTITUTES
THE COURT'S JUDGMENT FOR THE BOARD'S IN DEVISING THE APPROPRIATE
REMEDY. 

FOR THIS REASON IT BECOMES IMPORTANT TO STATE THE DIFFERENT REASONS
WHY I THINK THE ORDER SHOULD BE MODIFIED TO ELIMINATE ANY RESTRAINT
BASED UPON THE FINDING OF VIOLATION OF SEC. 8(1).  IT IS NOT BECAUSE
THIS COURT HAS POWER OR DISCRETION, WHEN THERE ARE TWO SUBSTANTIAL AND
DIFFERENT UNFAIR PRACTICES, TO MODIFY THE BOARD'S ORDER BY RESTRICTING
THE RELIEF TO WHAT IS APPROPRIATE TO PREVENT REPEATING ONLY ONE OR BY
OTHER MODIFICATION TO ELIMINATE RELIEF APPROPRIATELY DESIGNED BY THE
BOARD TO PREVENT REPETITION OF UNFAIR PRACTICES IT HAS FOUND TO EXIST. 
IT IS BECAUSE, IN MY OPINION, THERE WAS ONLY ONE UNFAIR PRACTICE AND
THAT WAS THE REFUSAL TO BARGAIN.  HENCE I THINK THE EXPRESS PUBLISHING
CASE EXACTLY APPLIES, AND DOES SO WITHOUT NECESSITY FOR EXTENDING THE
SCOPE OF ITS RULING AS THE COURT'S APPLICATION APPEARS TO DO. 

IN MY JUDGMENT, AN EMPLOYER DOES NOT COMMIT AN UNFAIR LABOR PRACTICE
WHEN HE DOES NO MORE THAN EXERCISE RIGHTS SECURED BY THE FEDERAL
CONSTITUTION AND LAWS, INCLUDING THE WAGNER ACT.  FN5  THAT ACT DOES
NOT PUT HIM TO THE CHOICE OF GIVING UP HIS RIGHTS OR EXERCISING THEM ON
PAIN OF BEING FOUND GUILTY OF UNFAIR PRACTICE.  APART FROM THE EVIDENCE
RELATING TO REFUSAL TO BARGAIN UNDER SEC. 8(5), THERE WAS NOTHING, IN
MY OPINION, WHICH WENT BEYOND WHAT WAS NECESSARY TO EXERCISE OR
PRESERVE THE EMPLOYER'S RIGHTS SECURED BY LAW.  THE APPLICATION TO THE
WAR LABOR BOARD FOR APPROVAL OF THE PROPOSED WEEKLY INCREASE OF $2.00
FOR ALL THE ST. LOUIS EMPLOYEES, EXCEPT THOSE REPRESENTED BY RECOGNIZED
UNIONS, WAS MADE AUGUST 31, 1943, SHORTLY AFTER THE COMPANY HAD
DECLINED TO BARGAIN WITH THE UNION IN ORDER TO PRESERVE ITS RIGHT TO
CONTEST APPROPRIATENESS OF THE UNIT.  ANNOUNCEMENTS OF THIS ACTION OVER
THE PUBLIC ADDRESS SYSTEM FOLLOWED ON SEPTEMBER 1 AND 11, WITH ONE ALSO
IN "STORE CHAT" ON SEPTEMBER 3. 

IN THE BACKGROUND OF THE FACTS, I DO NOT THINK THESE ACTS AMOUNTED TO
MORE THAN THE EXERCISE OF LEGAL RIGHTS SECURED TO THE EMPLOYER BY THE
WAGNER ACT, THE STABILIZATION ACT AND THE FIRST AMENDMENT.  THEY
CONSTITUTED NEITHER A WAGE INCREASE NOR AN OFFER OF ONE.  THERE WAS NO
MORE THAN TAKING STEPS TO SECURE OFFICIAL APPROVAL, REQUIRED IN ADVANCE
BY THE STABILIZATION ACT, TO MAKE AN INCREASE, OR TENDER ONE, AT SOME
UNCERTAIN FUTURE DATE, POSSIBLY NEVER TO ARRIVE.  THE APPLICATION WAS
MERELY A NECESSARY PRELIMINARY STEP TO LATER ACTION, WHICH MIGHT OR
MIGHT NOT MATERIALIZE, IN THE NATURE OF DEALING WITH EMPLOYEES OR
OFFERING TO DO SO, WHETHER DIRECTLY OR THROUGH THEIR BARGAINING
REPRESENTATIVES. 

THE CASE THEREFORE IS NOT MEDO,  FN6  IN SPITE OF THE BOARD'S
REPEATED AND INSISTENT ARGUMENT TO THE CONTRARY.  THERE THE EMPLOYER
ACTUALLY DEALT WITH THE EMPLOYEES, NOT ONLY NEGOTIATING BUT CONTRACTING
WITH THEM.  SO IN J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332.  HERE
THERE WAS NEITHER NEGOTIATION NOR CONTRACTING.  THERE WAS NOTHING THE
EMPLOYER COULD OFFER AT THAT TIME OR THE EMPLOYEES THEN COULD ACCEPT. 
THERE WAS ONLY PREPARATORY ACTION LOOKING TO THE POSSIBILITY OF LATER
NEGOTIATIONS, AND ANNOUNCEMENT OF THIS ACTION TO THE EMPLOYEES. 

IF THE EMPLOYER HAD THE RIGHT TO PUT ITSELF LEGALLY IN POSITION TO
NEGOTIATE, EITHER WITH THE EMPLOYEES OR WITH THE UNION, IT ALSO HAD THE
RIGHT TO STATE WHAT IT HAD DONE.  THE EFFECT OF THE BOARD'S DECISION,
AND NOW APPARENTLY OF THE COURT'S, IS TO RULE THAT THE WAGNER ACT SO
CIRCUMSCRIBES AN EMPLOYER THAT HE CANNOT TAKE THE NECESSARY PRELIMINARY
STEPS, IN THIS CASE REQUIRED BY LAW, TO PLACE HIMSELF IN POSITION TO
UNDERTAKE BARGAINING WITH HIS EMPLOYEES, WHETHER DIRECTLY OR THROUGH
THEIR SELECTED REPRESENTATIVES.  IT IS FURTHER TO HOLD THAT IF HE TAKES
SUCH STEPS, WITHOUT HAVING FIRST SECURED THE UNION'S PERMISSION, HE
MUST KEEP THE FACT TO HIMSELF AND DARE NOT DISCLOSE TO HIS EMPLOYEES
WHAT IS TO ALL OTHERS A MATTER OF PUBLIC RECORD.  THIS GOES BEYOND
PROTECTING THE RIGHTS OF EMPLOYEES.  IT GIVES TO THE UNION A VETO ON
MANAGEMENT, NOT ONLY AS RESPECTS NEGOTIATIONS FOR TERMS OF EMPLOYMENT
BUT FOR PUTTING THE EMPLOYER IN POSITION TO NEGOTIATE.  NO CASE HERE
HAS GONE SO FAR AND, IN MY JUDGMENT, THE WAGNER ACT DOES NOT
CONTEMPLATE THAT ANY SHOULD DO SO. 

OTHER FACTS BEAR OUT THIS CONCLUSION.  ONE IS THAT THE BOARD MADE NO
FINDING THAT THE EMPLOYER'S ACTION WAS TAKEN WITH INTENT TO INTERFERE
WITH, RESTRAIN OR COERCE THE EMPLOYEES IN RESPECT TO THEIR RIGHTS. 
NATURALLY ENOUGH THERE WAS NO SUCH FINDING.  THE APPLICATION AFFECTED
SOME 4,500 EMPLOYEES.  THE UNIT INVOLVED ONLY ABOUT 30.  IT IS HARDLY
CONCEIVABLE THAT THE EMPLOYER WOULD HAVE TAKEN THIS STEP IN RELATION TO
SO MANY FOR THE PURPOSE OF COERCING, INTERFERING WITH OR RESTRAINING
30.  THERE IS LACKING, THEREFORE, ANY SHOWING OR FINDING OF INTENT, A
FACTOR THE COURTS HAVE CONSIDERED IMPORTANT IN CONCLUDING FROM
OTHERWISE INNOCENT OR EQUIVOCAL FACTS THAT UNFAIR PRACTICE MAY EXIST;
FN7  AND ONE WHICH IN THIS CASE THE COURT APPEARENTLY MAKES CRUCIAL TO
DETERMINE WHETHER RELIEF RELEVANT TO A FINDING OF UNFAIR PRACTICE MAY
BE SUSTAINED.  THE BOARD FOUND ONLY THAT THE EMPLOYER'S "UNILATERAL
ACTION," IN MAKING THE APPLICATION TO THE WAR LABOR BOARD AND IN
ANNOUNCING THIS FACT, "HAD THE EFFECT OF DEPRIVING THE UNION OF CREDIT
WHICH NORMALLY WOULD ACCRUE TO IT, AND OF NULLIFYING ITS EFFICACY AS A
BARGAINING AGENT." 

EVEN WERE THIS TRUE, IT HAS NOT HERETOFORE BEEN HELD THAT THE WAGNER
ACT FORBIDS AN EMPLOYER TO TAKE ANY PRELIMINARY STEP WHATEVER LOOKING
TOWARD DEALING WITH HIS EMPLOYEES IN THE FUTURE WHICH, THOUGH NOT
INTENDED TO DISCREDIT THE UNION, MAY HAVE THE EFFECT TO PREVENT IT FROM
OBTAINING SOME CREDIT FOR PROPOSING POSSIBLE FUTURE ACTION WHICH IN
FACT THE EMPLOYER HAS PROPOSED.  NOTHING IN THE ACT REQUIRES AN
EMPLOYER TO MAINTAIN A UNION'S PRESTIGE OR TO GIVE IT CREDIT FOR
ORIGINATING ALL PROPOSALS WHICH MAY HAVE SOME FUTURE EFFECT UPON HIS
RELATIONS WITH HIS EMPLOYEES.  SECTION 8(1) FORBIDS INTERFERENCE,
COERCION AND RESTRAINT UPON EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS,
NOT THE MERE FAILURE OF THE EMPLOYER TO MAGNIFY THE UNION'S INFLUENCE. 

MOREOVER THE BOARD MADE NO FINDING, PRESUMABLY BECAUSE THERE IS NO
EVIDENCE TO SUSTAIN ONE, OF PARTICULAR AND CONCRETE FACTS SHOWING THAT
THE EMPLOYER'S SO-CALLED "UNILATERAL ACTION" ADVERSELY AFFECTED THE
UNION'S STATUS AMONG ITS MEMBERS OR OTHER EMPLOYEES.  FN8  IT ONLY
CONCLUDED THAT THE ACTION "REASONABLY (MAY) BE SAID TO HAVE UNDERMINED
THE UNION  ...  AND TO HAVE DISCOURAGED EMPLOYEES GENERALLY IN THEIR
UNION AFFILIATION."  PRESUMABLY, SINCE NO SUCH EFFECTS WERE PROVED OR
FOUND SPECIFICALLY, THE BASIS FOR THIS CONCLUSION WAS THE BOARD'S
"EXPERIENCE," THOUGH THIS WAS NOT REFERRED TO IN THE ORDER OR THE
REPORT ON WHICH IT WAS FOUNDED.  THAT FOUNDATION WAS NOT SUFFICIENT, IN
MY JUDGMENT, IN THE ABSENCE OF PROOF OF MORE UNEQUIVOCAL ACTS OF UNFAIR
PRACTICE, OF ANY FINDING OF INTENT TO INTERFERE, RESTRAIN OR COERCE,
AND OF ANY SHOWING WHATEVER OF SPECIFIC DISCOURAGING OR UNDERMINING
EFFECTS.  SOMETHING MORE THAN SUPPOSITION SHOULD UNDERLIE A CONCLUSION
WHICH SUPPORTS A FINDING OF UNFAIR PRACTICE. 

NOR DID THE EMPLOYER IGNORE THE UNION'S POSSIBLY LEGITIMATE STATUS OR
ITS RIGHT TO HAVE A VOICE IN THE MATTER OF THE INCREASE, IF APPROVAL BY
THE WAR LABOR BOARD SHOULD MATERIALIZE.  THE APPLICATION SET FORTH THE
ESSENTIAL FACTS WITH REFERENCE TO THE EXISTING DISPUTE CONCERNING
APPROPRIATENESS OF THE UNIT, THE EMPLOYER'S INTENTION TO LITIGATE THE
QUESTION WHENEVER IT MIGHT, ITS NONRECOGNITION OF THE UNION PENDING THE
OBTAINING OF A DECISION, AND ITS PURPOSE FOR THESE REASONS TO INCLUDE
THE AFFECTED EMPLOYEES IN THE APPLICATION.  BUT THE APPLICATION WENT ON
TO SAY THAT IF THE UNION SHOULD OBJECT TO THE INCREASE, FOR DEPARTMENTS
280 AND 281, THE BOARD SHOULD CONSIDER IT AS AMENDED TO EXCLUDE THOSE
EMPLOYEES.  FN9 

THIS HARDLY FURNISHES GROUND FOR CONCLUDING THAT THE EMPLOYER WAS
ATTEMPTING TO "SHORT-CIRCUIT" THE UNION, UNDERMINE IT, OR DISCREDIT IT
WITH THE EMPLOYEES.  IT EXPLICITLY RECOGNIZED THAT THE UNION, IF
RIGHTLY DESIGNATED AND CERTIFIED, WAS ENTITLED TO SAY WHETHER OR NOT
THE PROPOSED CHANGE IN PAY SHOULD BECOME EFFECTIVE.  ACTUALLY, THAT
RIGHT WAS CONCEDED, REGARDLESS OF THE ULTIMATE OUTCOME OF THE ISSUE ON
VALIDITY OF THE CERTIFICATION.  FN10  CLEARLY, IN VIEW OF THIS
CONCESSION, THERE WAS NO EFFORT EITHER TO CONTRACT WITH THE EMPLOYEES
DIRECTLY OR TO DEAL WITH THEM, OVER THE UNION'S HEAD, ABOUT THE
INCREASE.  WHETHER OR NOT IT SHOULD BECOME EFFECTIVE AS TO THEM WAS
LEFT, NOT TO THE EMPLOYEES THEMSELVES, BUT TO THE SOLE AND EXCLUSIVE
JUDGMENT OF THE UNION.  THERE WAS THEREFORE NO SEMBLANCE OF THE SHORT
CIRCUITING OR DIRECT DEALING WITH EMPLOYEES WHICH WAS PRESENT IN BOTH
THE MEDO AND THE J.I. CASE DECISIONS. 

POSSIBLY FOR THIS REASON THE BOARD IS DRIVEN BACK TO ITS
"UNDERMINING" CONTENTION.  THE COMPANY, IT SAYS, BY INCLUDING THESE
EMPLOYEES, "PUT THE UNION ON THE SPOT," SO THAT IT HAD NO REAL CHOICE. 
THE ARGUMENT SHOWS CONCERN FOR THE UNION'S "SPOT," BUT GIVES NO
RECOGNITION TO THE EMPLOYER'S.  THE BOARD DOES NOT URGE THAT THE
COMPANY SHOULD HAVE EXCLUDED THESE EMPLOYEES FROM THE GENERAL
APPLICATION, WITH GOOD REASON.  HAD THIS BEEN DONE, OBVIOUSLY THE
COMPANY WOULD HAVE LAID ITSELF OPEN TO A CHARGE AND A FINDING OF UNFAIR
PRACTICE UNDER SEC. 8(1).  THE BOARD IS UNWILLING, APPARENTLY, TO PUT
THE EMPLOYER IN THAT DILEMMA.  CF. MEDO PHOTO SUPPLY CORP. V. LABOR
BOARD, 321 U.S. 678, 699.  IT DOES NOT SAY, THOUGH THE COURT DOES BY
WAY OF DICTUM, THAT EXCLUDING THESE EMPLOYEES FROM THE APPLICATION
WOULD NOT HAVE BEEN AN UNFAIR PRACTICE.  THE BOARD SAYS THE EMPLOYER'S
ONLY WAY OUT WAS TO CONSULT THE UNION BEFORE MAKING THE APPLICATION. 

THIS CAN ONLY MEAN THAT THE EMPLOYER WAS COMPELLED TO ASK THE UNION'S
PERMISSION TO INCLUDE THESE EMPLOYEES; IN SHORT, THAT THE UNION HAD THE
RIGHT UNDER THE WAGNER ACT TO VETO ANY ACTION TAKEN BY THE EMPLOYER TO
OBTAIN THE NECESSARY LEGAL AUTHORITY TO PROPOSE ANY INCREASE FOR THEM,
WHETHER DIRECTLY OR THROUGH THE UNION.  I DO NOT THINK THE WAGNER ACT
CONFERS SUCH A POWER ON THE UNION.  NOR DID THE STABILIZATION ACT OR
THE REGULATIONS IN EFFECT PURSUANT TO ITS PROVISIONS DO SO.  FN11
MOREOVER, THE EMPLOYER ASSERTS THAT IT COULD NOT REFER THE MATTER TO
THE UNION WITHOUT SURRENDERING THE VERY RIGHTS IT WAS SEEKING TO
PRESERVE.  THIS, IT SAYS, WOULD HAVE AMOUNTED TO RECOGNITION AND WOULD
HAVE FORECLOSED IT LATER FROM SECURING REVIEW UNDER THE TERMS OF SEC.
10 UPON THE QUESTION WHETHER THE UNIT WAS APPROPRIATE. 

WHETHER OR NOT THAT IS TRUE, THERE WAS CERTAINLY GOOD REASON TO
BELIEVE IT SO.  THE RIGHT TO REVIEW IS GIVEN IN TERMS ONLY AS AN
INCIDENT OF AN UNFAIR PRACTICE PROCEEDING.  SEC. 10; CF. AMERICAN
FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. 401; INLAND EMPIRE COUNCIL
V. MILLIS, 325 U.S. 697.  IN THIS STATE OF THE LAW, THE COMPANY'S ONLY
CERTAIN REMEDY WAS TO WITHHOLD RECOGNITION UNTIL THE MATTER COULD BE
DETERMINED.  HAD IT RECOGNIZED THE UNION, BY SEEKING ITS PERMISSION TO
INCLUDE THE AFFECTED EMPLOYEES, THERE WOULD HAVE BEEN NO FACTUAL OR
LEGAL BASIS FOR THE ONLY PROCEEDINGS BY WHICH REVIEW WAS ASSURED; AND,
IN ORDER TO SECURE IT, THE COMPANY THEN WOULD HAVE BEEN FORCED TO
COMMIT SOME OTHER ACT OF UNFAIR PRACTICE OR TO TAKE ITS CHANCE UPON
SOME OTHER DOUBTFUL REMEDY.  IN EITHER EVENT, IT WOULD HAVE BEEN
CONFRONTED WITH ITS PRIOR ACTION OF DEALING WITH THE UNION AND THE
POSSIBILITIES THIS WOULD PRESENT EITHER FOR APPLYING THE BROAD DOCTRINE
OF ESTOPPEL OR FOR OCCUPYING THE INCONSISTENT, NOT TO SAY INDEFENSIBLE,
POSITION OF HAVING RECOGNIZED THE UNION AND THEN HAVING DELIBERATELY
REPUDIATED THE RECOGNITION. 

I DO NOT THINK THE WAGNER ACT WAS INTENDED TO PUT THE EMPLOYER IN
SUCH A DILEMMA.  IT HAS BEEN SETTLED THAT HE TAKES THE RISK OF HIS
ERROR WHEN HE MISTAKENLY JUDGES THAT THE UNIT IS NOT APPROPRIATE OR FOR
OTHER REASON THAT THE DULY SELECTED OR CERTIFIED UNION IS NOT ENTITLED
TO RECOGNITION N12.  AS TO THAT, THE EMPLOYER'S CHOICE WAS HARD, MADE
SO BY THE VERY STATE OF THE LAW.  HAD THE LAW BEEN THAT CERTIFICATION
WAS NONE OF THE COMPANY'S BUSINESS AND THAT THE COMPANY HAD NO RIGHT OF
REVIEW, IT WOULD HAVE KNOWN ITS RIGHTS AND ITS LIABILITIES.  THAT WAS
NOT AND IS NOT THE LAW.  THE COMPANY WAS TOLD EXPRESSLY THAT IT HAD A
RIGHT OF REVIEW, BUT ONLY IN AN UNFAIR PRACTICE PROCEEDING.  FN13  IT
WAS THEREFORE PUT TO THE CHOICE, BY THE STATUTE'S TERMS, OF FOREGOING
REVIEW OR HAVING IT BY AN ACT OF UNFAIR PRACTICE.  HENCE THE FINDING OF
UNFAIR PRACTICE BY REFUSAL TO BARGAIN MUST BE SUSTAINED.  BUT, IN
TAKING THIS RISK, THE EMPLOYER DID NO MORE THAN IT WAS COMPELLED BY LAW
TO DO TO SAVE ITS RIGHTS UNDER THE WAGNER ACT AND TO AVOID BEING FOUND
GUILTY, BY VIRTUE OF SOME ALTERNATIVE COURSE OF CONDUCT RELATING TO THE
APPLICATION, OF FURTHER UNFAIR PRACTICES. 

I DO NOT AGREE, THEREFORE, THAT THIS NECESSITOUS ACTION AMOUNTED TO
AN ADDITIONAL UNFAIR PRACTICE, IN THE NATURE OF INTERFERENCE, COERCION
OR RESTRAINT OF EMPLOYEES' RIGHTS, WHETHER OR NOT THE FINDING THAT IT
WAS IS SUFFICIENT TO SUSTAIN AN INDEPENDENT PROVISION FOR RELIEF. 

A WORD REMAINS TO BE SAID CONCERNING THE ANNOUNCEMENTS.  AS HAS BEEN
STATED, IF THE COMPANY HAD THE RIGHT TO MAKE THE APPLICATION AS IT DID,
IT ALSO HAD THE RIGHT TO ANNOUNCE THAT FACT TO THE PUBLIC AND TO THE
EMPLOYEES, SO LONG AS IN DOING THIS IT DID NOT DO SO WITH INTENT OR IN
A MANNER TO VIOLATE THE ACT.  I FIND NOTHING IN THE ANNOUNCEMENTS TO
JUSTIFY A FINDING THEY WERE MADE WITH THIS PURPOSE OR EFFECT, AND THERE
IS NO FINDING TO THE CONTRARY N14.  THEY WERE, IN MY JUDGMENT, NO MORE
THAN AN EXERCISE OF THE EMPLOYER'S RIGHTS OF FREE SPEECH AND A FREE
PRESS, SECURED BY THE FIRST AMENDMENT.  CF. LABOR BOARD V. VIRGINIA
ELECTRIC & POWER CO., 314 U.S. 469; LABOR BOARD V. FORD MOTOR CO., 114
F.2D 905; LABOR BOARD V. AMERICAN TUBE BENDING CO., 134 F.2D 993;
COMPARE TEXAS & N.O.R. CO. V. BROTHERHOOD, 281 U.S. 548, 568. 

IT FOLLOWS FROM MY VIEW OF THE CASE THAT THE BOARD'S ORDER SHOULD BE
MODIFIED BY STRIKING FROM IT PARAGRAPH 1(B) TOGETHER WITH THE WORDS
"AND (B)" FROM PARAGRAPH 2(B), AND AS SO MODIFIED ENFORCED. 
ACCORDINGLY, I THINK THE JUDGMENT OF THE COURT OF APPEALS, ENFORCING
THE BOARD'S ORDER, SHOULD BE MODIFIED IN THESE RESPECTS AND, AS THUS
MODIFIED, AFFIRMED. 

FN1  THE BOARD ADOPTED THE TRIAL EXAMINER'S INTERMEDIATE REPORT
WITHOUT CHANGE, THE EMPLOYER NOT HAVING APPLIED FOR ORAL ARGUMENT.  53
N.L.R.B. 1366.  AFTER REVIEWING THE EVIDENCE UNDER THE SEPARATE
HEADINGS OF "A.  THE REFUSAL TO BARGAIN" AND "B.  INTERFERENCE,
RESTRAINT AND COERCION," THE REPORT FOUND AS TO THE FORMER THAT "ON
JULY 19, 1943, AND AT ALL TIMES THEREAFTER" THE COMPANY HAD REFUSED TO
BARGAIN COLLECTIVELY WITH THE UNION; AS TO THE LATTER "THAT, BY ITS
UNILATERAL ACTION IN SEEKING APPROVAL OF ITS PROPOSED WAGE
ADJUSTMENTS," AND BY LATER PUBLICIZING THIS ACTION, IT HAD "INTERFERED
WITH, RESTRAINED, AND COERCED ITS EMPLOYEES" IN THE EXERCISE OF THE
RIGHTS GUARANTEED IN SEC. 7.  THERE WERE SEPARATE AND INDEPENDENT
CONCLUSIONS OF LAW BASED ON THESE FINDINGS, TO WHICH THE SEPARATE
PROVISIONS OF THE ORDER RELATED. 

FN2  THE MODIFICATION DIRECTED BY THE COURT, IF IT IS MORE THAN A
CHANGE IN THE FORM OF WORDS USED IN PARAGRAPH 1(B) OF THE BOARD'S
ORDER, NECESSARILY CUTS DOWN THE SUBSTANCE OF THE ORDER.  BUT SINCE THE
INJUNCTION WILL APPLY "TO OTHER INTERFERENCES, IN VIOLATION OF SEC.
8(1) OR OTHERWISE, WITH THE COUNCIL'S REPRESENTATION" OF EMPLOYEES IN
DEPARTMENTS 280 AND 281, AND SINCE VIOLATION OF SEC. 8(1) INCLUDES
INTERFERENCE, RESTRAINT OR COERCION OF EMPLOYEES' RIGHTS AS GUARANTEED
BY SEC. 7, IT IS DIFFICULT TO UNDERSTAND IN JUST WHAT PARTICULARS THE
ORDER HAS BEEN MODIFIED.  IN THE ABSENCE OF MORE DEFINITE SPECIFICATION
WE MUST ACCEPT THE COURT'S MODIFICATION AS MEANING THAT SOME
SUBSTANTIAL CHANGE FROM THE ORDER'S TERMS IS INTENDED. 

FN3  UNDER THE RULING THE BOARD IS NOT FREE TO UTILIZE SEC. 8(1) AS A
DEVICE FOR MULTIPLYING AN UNFAIR PRACTICE UNDER SEC. 8(5), SO THAT THE
SINGLE ACT OF REFUSING TO BARGAIN MAY BE MADE TO JUSTIFY AN ORDER
FORBIDDING NOT ONLY THAT CONDUCT BUT ALSO THE NUMEROUS TYPES OF UNFAIR
PRACTICE PROHIBITED BY THE BROAD LANGUAGE OF SEC. 8(1).  THE GIST OF
THE DECISION WAS THAT THE BOARD CANNOT THUS PILE UNFAIR PRACTICE ON
UNFAIR PRACTICE, LIKE PRESUMPTION ON PRESUMPTION, FOR PURPOSES OF
ENFORCEABLE RELIEF, NOTWITHSTANDING THE ACT OF MERELY REFUSING TO
BARGAIN MAY BE HELD TECHNICALLY TO VIOLATE BOTH SECTIONS IN VIEW OF THE
LANGUAGE OF SEC. 7.  LABOR BOARD V. EXPRESS PUBLISHING CO., 312 U.S.
426, 433. 

FN4  THIS COURT HAS, IN VARIOUS CONTEXTS, DECLARED THAT THE
PARTICULAR MEANS BY WHICH THE EFFECTS OF UNFAIR LABOR PRACTICES ARE TO
BE EXPUNGED IS FOR THE BOARD AND NOT FOR THE COURTS TO DETERMINE. 
VIRGINIA ELECTRIC & POWER CO. V. LABOR BOARD, 319 U.S. 533, 539; LABOR
BOARD V. LINK-BELT CO., 311 U.S. 584, 600; INTERNATIONAL ASSOCIATION OF
MACHINISTS V. LABOR BOARD, 311 U.S. 72, 82.  SEE LABOR BOARD V.
BRADFORD DYEING ASSOCIATION, 310 U.S. 318, 342-343.  AND THE COURT HAS
SAID THAT "THE RELATION OF REMEDY TO POLICY IS PECULIARLY A MATTER FOR
ADMINISTRATIVE COMPETENCE" AND THAT "COURTS MUST NOT ENTER THE
ALLOWABLE AREA OF THE BOARD'S DISCRETION...."  PHELPS DODGE CORP. V.
LABOR BOARD, 313 U.S. 177, 194.  SEE ALSO REGAL KNITWEAR CO. V. LABOR
BOARD, 324 U.S. 9, 13. 

FN5  THE WAGNER ACT, DESIGNED TO PROMOTE THE PUBLIC INTEREST BY
SECURING EMPLOYEES' RIGHTS, DOES SO BY APPROPRIATE REMEDIES WHICH ALSO
AFFORD PROTECTIONS FOR THE EMPLOYER.  SEE TEXT AT NOTE 13. 

FN6  MEDO PHOTO SUPPLY CORP. V. LABOR BOARD, 321 U.S. 678. 

FN7  SEE MONTGOMERY WARD & CO. V. LABOR BOARD, 107 F.2D 555, 559;
LABOR BOARD V. WHITTIER MILLS CO., 111 F.2D 474, 478-479; LABOR BOARD
V. ELKLAND LEATHER CO., 114 F.2D 221, 224; LABOR BOARD V. CHICAGO
APPARATUS CO., 116 F.2D 753, 756-757; PETER J. SCHWEITZER, INC. V.
LABOR BOARD, 79 U.S. APP. D.C. 178, 144 F.2D 520, 522. 

FN8  THE GENERAL "FINDING" THAT THE COMPANY'S ACTION IN MAKING THE
APPLICATION AND PUBLICIZING IT "INTERFERED WITH, RESTRAINED, AND
COERCED ITS EMPLOYEES," 53 N.L.R.B. AT 1371, RESTED ON NO MORE THAN THE
BOARD'S ASSERTION THAT "IT LOGICALLY FOLLOWS" THAT THESE ACTS "HAD THE
EFFECT" OF DEPRIVING THE UNION OF CREDIT AND "MAY  ...  BE SAID TO HAVE
UNDERMINED" IT.    FN9  THE BOARD'S BRIEF STATES THAT THE UNION
OBJECTED AND THE WAR LABOR BOARD ACCORDINGLY ELIMINATED THE BUSHELMEN
FROM THE APPLICATION, CITING IN RE MAY DEPT. STORES CO., N.W.L.B. CASE
NO. 7-6585(UNREPORTED). 

FN10  SEE NOTE 11. 

FN11  THE REGULATIONS REQUIRED THAT THE APPLICATION BE SIGNED "EITHER
(A) JOINTLY BY THE EMPLOYER AND A DULY RECOGNIZED COLLECTIVE BARGAINING
AGENCY  ..., OR (B) BY THE EMPLOYER ALONE."  4 WAR LABOR REP. XXXI,
XXXIII-XXXIV, SEC. III, 3.  IT WAS FURTHER REQUIRED, IN EITHER CASE,
THAT THE APPLICATION STATE WHETHER OR NOT THERE WAS "A DULY RECOGNIZED
COLLECTIVE BARGAINING AGENCY ...  WHICH HAS NOT JOINED WITH THE
EMPLOYER IN THE APPLICATION."  IF SO, PROVISION WAS MADE FOR THE WAGE
AND HOUR DIVISION TO NOTIFY THE ORGANIZATION AND REQUEST IT TO INFORM
THE OFFICE OF OBJECTIONS, IF ANY, TO ACTION ON THE APPLICATION.  CF.
NOTE 9.  IF NONE WERE MADE, THE APPLICATION WOULD BE ACTED ON.  IF
MADE, THE MATTER WAS TO BE TREATED AS A DISPUTE AND REFERRED TO THE
CONCILIATION SERVICE OF THE DEPARTMENT OF LABOR. 

IT WAS APPARENTLY IN COMPLIANCE WITH THIS REGULATION THAT THE
APPLICATION IN THIS CASE SET FORTH THE REPRESENTATIONS CONCERNING THE
NONRECOGNITION OF THE UNION, THE DISPUTE, ETC.  THE REGULATIONS WERE
AMENDED LATER TO INCLUDE EITHER A RECOGNIZED OR A CERTIFIED UNION.  9
WAR LABOR REP. XXXIII; 8 FED. REG. 16678. 

FN12  SEE, E.G., LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111;
FRANKS BROS. CO. V. LABOR BOARD, 321 U.S. 702; MEDO PHOTO SUPPLY CORP.
V. LABOR BOARD, 321 U.S. 678; J.I. CASE CO. V. LABOR BOARD, 321 U.S.
332; PITTSBURGH PLATE GLASS CO. V. LABOR BOARD, 313 U.S. 146; LABOR
BOARD V. BRADFORD DYEING ASSN., 310 U.S. 318; NATIONAL LICORICE CO. V.
LABOR BOARD, 309 U.S. 350; CF. H.J. HEINZ CO. V. LABOR BOARD, 311 U.S.
514, 523(EMPLOYER BARGAINED BUT REFUSED TO SIGN WRITTEN CONTRACT). 

FN13  THE ATTENUATED CHARACTER OF THE RIGHT MAKES ALL THE MORE
ESSENTIAL THAT IT NOT BE WHITTLED AWAY OR NULLIFIED BY RULINGS WHICH
MAKE ITS EXERCISE MORE PRECARIOUS THAN IT IS BY THE VERY CONDITIONS OF
ITS EXISTENCE. 

FN14  THE MERE FACT THAT THE ANNOUNCEMENTS OMITTED SPECIFIC REFERENCE
TO DEPARTMENTS 280 AND 281 DOES NOT SUPPLY THIS ELEMENT.  SUCH A
REFERENCE, IF MADE, MIGHT HAVE BEEN CONSTRUED, BY ITS SINGLING OUT OF
THIS UNIT FOR SPECIAL TREATMENT AND THEREBY FOR INVIDIOUS IMPLICATION,
AS FURNISHING THE VERY EVIDENCE OF WRONGFUL SPECIFIC INTENT AND EFFECT
WHICH THE BOARD HAS FAILED TO FIND. 

THE CHIEF JUSTICE AND MR. JUSTICE FRANKFURTER JOIN IN THIS OPINION. 
..END :




















MARKHAM V. CABELL, 326 U.S. 404 


NO. 76.  ARGUED OCTOBER 19, 1945.  - DECIDED DECEMBER 10, 1945.  - 148
F.2D 737, AFFIRMED. 


1.  SECTION 9(A) OF THE TRADING WITH THE ENEMY ACT ALLOWS "ANY PERSON
NOT AN ENEMY OR ALLY OF ENEMY  ...  TO WHOM ANY DEBT MAY BE OWING FROM
AN ENEMY OR ALLY OF ENEMY WHOSE PROPERTY OR ANY PART THEREOF SHALL HAVE
BEEN CONVEYED, TRANSFERRED, ASSIGNED, DELIVERED, OR PAID TO THE ALIEN
PROPERTY CUSTODIAN" TO SUE THE CUSTODIAN OR THE TREASURER OF THE UNITED
STATES IN THE FEDERAL COURTS.  SECTION 9(E) PROVIDES THAT NO DEBT SHALL
BE ALLOWED UNDER SEC. 9 "UNLESS IT WAS OWING TO AND OWNED BY THE
CLAIMANT PRIOR TO OCTOBER 6, 1917" NOR "UNLESS NOTICE OF THE CLAIM HAS
BEEN FILED, OR APPLICATION THEREFOR HAS BEEN MADE, PRIOR TO THE DATE OF
THE ENACTMENT OF THE SETTLEMENT OF WAR CLAIMS ACT OF 1928."  HELD: 

(A)  THE TRADING WITH THE ENEMY ACT BECAME EFFECTIVE AGAIN
AUTOMATICALLY AT THE OUTBREAK OF WORLD WAR II.  P. 407. 

THE ACT WAS DESIGNED TO OPERATE NOT ONLY IN WORLD WAR I BUT ALSO,
UNLESS REPEALED OR SUPERSEDED, IN ANY FUTURE WAR.  P. 409. 

(B)  THE RIGHT TO SUE ON A DEBT, GRANTED BY SEC. 9(A), HAS NOT BEEN
WHOLLY WITHDRAWN.  P. 412. 

(C)  THE TIME LIMITATIONS IN SEC. 9(E) RELATE TO CLAIMS AGAINST
PROPERTY SEIZED DURING WORLD WAR I.  P. 412. 

(D)  ALLOWANCE OF SUIT ON A DEBT AS PRESCRIBED BY SEC. 9(A) IS NOT
INCONSISTENT WITH THE POWER GRANTED THE EXECUTIVE BY THE 1941 AMENDMENT
OF SEC. 5(B) TO VEST THE PROPERTY OF ANY FOREIGN COUNTRY OR NATIONAL
THEREOF AND TO MAKE OF SEIZED PROPERTY ANY USE WHICH THE NATIONAL
INTEREST IN WARTIME MIGHT REQUIRE.  P. 412. 

2.  RESORT TO THE POLICY OF A LAW MAY BE HAD TO AMELIORATE ITS
SEEMING HARSHNESS OR TO QUALIFY ITS APPARENT ABSOLUTES.  HOLY TRINITY
CHURCH V. UNITED STATES, 143 U.S. 457.  P. 409. 

3.  A LESS LITERAL READING WHICH EFFECTUATES A STATUTE IS PREFERRED
TO A STRICT READING WHICH WOULD RENDER IT INEFFECTUAL.  P. 409. 

4.  WHERE CONGRESS AMENDS ONLY ONE SECTION OF A LAW, LEAVING ANOTHER
UNTOUCHED, THE NORMAL ASSUMPTION IS THAT THE TWO WERE DESIGNED TO
FUNCTION AS AN INTEGRATED WHOLE.  P. 411. 

MARKHAM, ALIEN PROPERTY CUSTODIAN, ET AL. V. CABELL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 325 U.S. 847, TO REVIEW THE REVERSAL OF A JUDGMENT
DISMISSING THE COMPLAINT IN A SUIT UNDER THE TRADING WITH THE ENEMY
ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, AN AMERICAN CITIZEN, BROUGHT THIS SUIT AGAINST THE ALIEN
PROPERTY CUSTODIAN AND THE TREASURER OF THE UNITED STATES TO RECOVER
FROM THE ASSETS OF THE ASSICURAZIONI GENERALI DI TRIESTE E VENEZIA, AN
ITALIAN INSURANCE COMPANY, THE UNPAID PORTION OF A CLAIM FOR LEGAL
SERVICES RENDERED THAT COMPANY.  THE ASSETS OF THE COMPANY HAD VESTED
IN THE ALIEN PROPERTY CUSTODIAN IN 1942  FN1 AND THE VESTED ASSETS HAD
BEEN DELIVERED TO HIM.  THE SUIT WAS SOUGHT TO BE MAINTAINED UNDER SEC.
9(A) OF THE TRADING WITH THE ENEMY ACT (40 STAT. 411, AS AMENDED 41
STAT. 977, 50 U.S.C. APP. SEC. 9(A)) WHICH ALLOWS "ANY PERSON NOT AN
ENEMY OR ALLY OF ENEMY  ...  TO WHOM ANY DEBT MAY BE OWING FROM AN
ENEMY OR ALLY OF ENEMY WHOSE PROPERTY OR ANY PART THEREOF SHALL HAVE
BEEN CONVEYED, TRANSFERRED, ASSIGNED, DELIVERED, OR PAID TO THE ALIEN
PROPERTY CUSTODIAN" TO SUE THE CUSTODIAN OR THE TREASURER OF THE UNITED
STATES IN THE FEDERAL COURTS.  PETITIONERS MOVED TO DISMISS ON THE
GROUND THAT THE CLAIM DID NOT QUALIFY UNDER SEC. 9(E) OF THE ACT.  SEC.
9(E), WHICH WAS ADDED TO THE ACT IN 1920(41 STAT. 980) AND AMENDED IN
1928(45 STAT. 271), PROVIDES THAT NO DEBT SHALL BE ALLOWED UNDER SEC. 9
"UNLESS IT WAS OWING TO AND OWNED BY THE CLAIMANT PRIOR TO OCTOBER 6,
1917" NOR "UNLESS NOTICE OF THE CLAIM HAS BEEN FILED, OR APPLICATION
THEREFOR HAS BEEN MADE, PRIOR TO THE DATE OF THE ENACTMENT OF THE
SETTLEMENT OF WAR CLAIMS ACT OF 1928."  IN VIEW OF THOSE PROVISIONS OF
SEC. 9(E) THE DISTRICT COURT DISMISSED THE COMPLAINT.  THE CIRCUIT
COURT OF APPEALS REVERSED.  148 F.2D 737.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
PUBLIC IMPORTANCE OF THE QUESTION PRESENTED. 

IF SEC. 9(E) IS APPLICABLE HERE, THE SUIT MAY NOT BE MAINTAINED SINCE
THE DEBT WAS NOT IN EXISTENCE ON OCTOBER 6, 1917, NOR HAD NOTICE OF THE
CLAIM BEEN FILED OR APPLICATION THEREFOR BEEN MADE PRIOR TO THE DATE OF
THE ENACTMENT OF THE SETTLEMENT OF WAR CLAIMS ACT OF 1928.  WE WOULD
HAVE QUITE A DIFFERENT CASE IF SEC. 9(A) AND (E) HAD BEEN ENACTED AFTER
THE OUTBREAK OF THE RECENT WAR.  FOR WE MAY ASSUME THAT CONGRESS COULD
SET UP SUCH BARRIERS AS IT CHOSE TO THE ENFORCEMENT OF THE CLAIMS OF AN
ALIEN'S CREDITORS AGAINST THE SEIZED PROPERTY.  BUT THE DOUBT AS TO THE
APPLICABILITY OF SEC. 9(E) TO THE PRESENT SITUATION ARISES BECAUSE THAT
PROVISION WAS PART OF THE LEGISLATION ENACTED AFTER THE OUTBREAK OF
WORLD WAR I TO DEAL WITH THE CLAIMS AGAINST PROPERTY SEIZED DURING THAT
PERIOD.  THAT LEGISLATION WAS NOT REENACTED WHEN THE RECENT WAR BROKE
OUT.  IT AUTOMATICALLY WENT INTO EFFECT AGAIN AT THAT TIME.  FN2  HENCE
THE ARGUMENT THAT THESE PROVISIONS OF SEC. 9(E) ARE LIMITED TO CLAIMS
AGAINST PROPERTY SEIZED DURING WORLD WAR I. OUR CONCLUSION IS THAT THEY
ARE SO LIMITED. 

IN THE FIRST PLACE, SEC. 9(E) DISALLOWS RECOVERY "TO ANY PERSON WHO
IS A CITIZEN OR SUBJECT OF ANY NATION WHICH WAS ASSOCIATED WITH THE
UNITED STATES IN THE PROSECUTION OF THE WAR, UNLESS SUCH NATION IN LIKE
CASE EXTENDS RECIPROCAL RIGHTS TO CITIZENS OF THE UNITED STATES."  WHEN
IT IS RECALLED THAT SEC. 9(E) WAS FIRST ADDED TO THE ACT IN 1920, IT
SEEMS TOLERABLY CLEAR THAT THE WORDS "WAS ASSOCIATED WITH THE UNITED
STATES IN THE PROSECUTION OF THE WAR" REFER TO WORLD WAR I. THE USE NOT
ONLY OF THE PAST TENSE BUT ALSO OF THE CONCEPT OF "ASSOCIATE" IS
SIGNIFICANT.  AS JUDGE LEARNED HAND SPEAKING FOR THE COURT BELOW SAID,
THE WORD "ASSOCIATE" WAS USED DURING WORLD WAR I "IN SEDULOUS AVOIDANCE
OF ANY IMPLICATION" THAT WE HAD "ALLIES."  IN THE SECOND PLACE, THE
TIME LIMITATIONS CONTAINED IN SEC. 9(E) POINT THE SAME WAY.  AS THE
UNITED STATES SAYS, SOME SECTIONS OF THE ACT WERE EXPLICITLY RESTRICTED
TO SITUATIONS GROWING OUT OF WORLD WAR I, AS, FOR EXAMPLE, SEC. 3(D). 
BUT IT SEEMS TO US THAT THE PROVISIONS OF SEC. 9(E) WITH WHICH WE ARE
NOW CONCERNED CARRY ALMOST AS PLAIN A HALLMARK.  FOR THE RESTRICTION OF
SUITS TO DEBTS WHICH WERE OWING TO AND OWNED BY THE CLAIMANT PRIOR TO
OCTOBER 6, 1917 AND AS RESPECTS WHICH A NOTICE OF CLAIM HAD BEEN FILED
PRIOR TO THE DATE OF THE ENACTMENT OF THE SETTLEMENT OF WAR CLAIMS ACT
OF 1928 STRONGLY SUGGESTS THAT CONGRESS WAS DEALING EXCLUSIVELY WITH
WORLD WAR I CLAIMS, NOT WITH CLAIMS WHICH MIGHT ARISE IN SOME FUTURE
WAR.  AS OF 1920 AND 1928 THE TIME LIMITATIONS WRITTEN INTO SEC. 9(E)
HAD NO OTHER RELEVANCY.  THE COMMITTEE REPORTS,  FN3  ACCOMPANYING THE
LEGISLATION BY WHICH SEC. 9(E) WAS ADDED TO THE LAW, WHILE NOT EXPLICIT
ON THE PRECISE POINT, SHOW THAT CONGRESS WAS CONCERNED SOLELY WITH THE
HANDLING OF CLAIMS WHICH THEN EXISTED.  THERE IS NOT THE SLIGHTEST
SUGGESTION THAT CONGRESS WAS DRAFTING A STATUTE OF LIMITATIONS LIKEWISE
APPLICABLE TO CLAIMS WHICH MIGHT BE ASSERTED IN CASE THE UNITED STATES
AT SOME FUTURE TIME AGAIN WENT TO WAR.  THESE CONSIDERATIONS INDICATE
TO US THAT IT WOULD BE A DISTORTION TO READ SEC. 9(E) AS IF CONGRESS IN
DECEMBER 1941 DECIDED THAT THE STATUTE OF LIMITATIONS APPLICABLE TO
WORLD WAR I CLAIMS SHOULD LIKEWISE BE APPLICABLE TO WORLD WAR II
CLAIMS.  IF WE GAVE SEC. 9(E) THAT BROAD INTERPRETATION, WE WOULD, IN
THE THIRD PLACE, DEPRIVE SEC. 9(A) OF ALL MEANING SO FAR AS WORLD WAR
II CLAIMS WERE CONCERNED.  THAT WE HESITATE TO DO, FOR THE ACT WAS NOT
ONLY DESIGNED TO OPERATE IN THE FIRST WORLD WAR; IT WAS ALSO TO BECOME
EFFECTIVE AT THE TIME OF ANY FUTURE WAR UNLESS REPEALED OR SUPERSEDED. 
YET THE REMEDY AFFORDED BY SEC. 9(A) WOULD BE QUITE ILLUSORY AND
INEFFECTIVE SO FAR AS IT APPLIES TO WORLD WAR II CLAIMS IF SEC. 9(E)
WERE READ LITERALLY WITHOUT REGARD TO ITS HISTORY.  IT WAS FOR THIS
REASON PARTICULARLY THAT THE COURT BELOW REFUSED "TO MAKE A FORTRESS
OUT OF THE DICTIONARY" AND TO READ SEC. 9(E) STRICTLY AND LITERALLY. 
THE POLICY AS WELL AS THE LETTER OF THE LAW IS A GUIDE TO DECISION. 
RESORT TO THE POLICY OF A LAW MAY BE HAD TO AMELIORATE ITS SEEMING
HARSHNESS OR TO QUALIFY ITS APPARENT ABSOLUTES AS HOLY TRINITY CHURCH
V. UNITED STATES, 143 U.S. 457 ILLUSTRATES.  THE PROCESS OF
INTERPRETATION ALSO MISSES ITS HIGH FUNCTION IF A STRICT READING OF A
LAW RESULTS IN THE EMASCULATION OR DELETION OF A PROVISION WHICH A LESS
LITERAL READING WOULD PRESERVE. 

THE UNITED STATES, HOWEVER, CONTENDS THAT SUCH A CONSTRUCTION OF SEC.
9(E) WOULD GRAVELY INTERFERE WITH THE EFFICIENT ADMINISTRATION OF ALIEN
PROPERTY CONTROLS IN ACCORDANCE WITH POLICIES ADOPTED BY CONGRESS IN
RELATION TO WORLD WAR II.  IT POINTS OUT THAT BY VIRTUE OF AMENDMENTS
TO SEC. 5(B) OF THE TRADING WITH THE ENEMY ACT WHICH WERE MADE ON
DECEMBER 18, 1941 BY THE FIRST WAR POWERS ACT (55 STAT. 839, 50 U.S.C.
APP., SUPP. IV, SEC. 616), THE EXECUTIVE IS NOW ARMED WITH FAR MORE
COMPREHENSIVE POWER OVER ALIEN PROPERTY AND THE PROPERTY OF OTHER
FOREIGN INTERESTS THAN IN WORLD WAR I. NOW THERE IS THE "FREEZING" OR
"BLOCKING" OF FOREIGN FUNDS AIMED AT THE IMMOBILIZATION OF FOREIGN
ASSETS IN THE UNITED STATES BY PROHIBITING, WITHOUT A LICENSE, ANY
TRANSACTIONS INVOLVING THEM - A PROGRAM INITIATED AFTER THE INVASION BY
GERMANY OF DENMARK AND NORWAY AND ADMINISTERED BY THE TREASURY.  FN4
IF THE TREASURY REFUSES A LICENSE PERMITTING PAYMENT OF CREDITORS OUT
OF BLOCKED FUNDS, NEITHER THE CREDITOR NOR THE OWNER HAS ANY REMEDY AS
A MATTER OF RIGHT UNDER THE ACT.  IT IS SAID THAT TO ALLOW CREDITORS OF
CERTAIN ALIENS WHOSE PROPERTY HAS BEEN VESTED IN THE ALIEN PROPERTY
CUSTODIAN TO MAINTAIN SUITS BUT TO DISALLOW SUITS BY CREDITORS OF
ALIENS WHOSE FUNDS ARE MERELY FROZEN IS TO DESTROY CONSISTENCY IN THE
POSITION OF CREDITORS UNDER THE TRADING WITH THE ENEMY ACT.  MOREOVER,
SEC. 9(A) PERMITS SUITS ON DEBT CLAIMS ONLY IF THE DEBT IS ONE "OWING
FROM AN ENEMY OR ALLY OF ENEMY" WHOSE PROPERTY HAS BEEN TAKEN.  BY THE
1941 AMENDMENT TO SEC. 5(B) THE VESTING POWER HAS NOT BEEN SO LIMITED
BUT EXTENDS TO "ANY PROPERTY OR INTEREST OF ANY FOREIGN COUNTRY OR
NATIONAL."  THE ARGUMENT IS THAT TO CONSTRUE SEC. 9(E) SO AS TO PERMIT
CREDITORS OF AN ENEMY TO SUE IS TO DISCRIMINATE WITHOUT WARRANT AGAINST
CREDITORS OF NON-ENEMY FOREIGN NATIONALS WHO ARE GIVEN NO SUCH REMEDY. 
MOREOVER, IT IS SAID THAT IF SEC. 9(E) IS NOT A BARRIER TO SUITS, A
RACE OF DILIGENCE WOULD BE STARTED WITH NO GUARANTEE OF ANY EQUITABLY
ORDERED PRIORITY IN THE PAYMENT OF THE CLAIMS OUT OF THE SEIZED
PROPERTY.  IT IS ALSO ARGUED THAT IF THESE SUITS ARE ALLOWED THE
OPERATIONS OF THE CUSTODIAN WOULD BE BURDENED WITH LITIGATION. 

WE HAVE CONCLUDED THAT HOWEVER MERITORIOUS THESE CONSIDERATIONS ARE,
THEY RAISE QUESTIONS OF POLICY FOR CONGRESS.  WE ARE CONCERNED ONLY
WITH THE RIGHT TO SUE ON A DEBT UNDER SEC. 9.  CONGRESS GRANTED THAT
RIGHT TO SOME CLAIMANTS AND WITHHELD IT FROM OTHERS.  WHETHER ITS
CHOICE WAS WISE OR NOT IS NOT FOR US TO SAY.  THE RIGHT TO SUE,
EXPLICITLY GRANTED BY SEC. 9(A), SHOULD NOT BE READ OUT OF THE LAW
UNLESS IT IS CLEAR THAT CONGRESS BY WHAT IT LATER DID WITHDREW ITS
EARLIER PERMISSION.  WE CAN FIND NO INDICATION IN THE 1941 LEGISLATION
THAT CONGRESS BY AMENDING SEC. 5(B) DESIRED TO DELETE OR WHOLLY NULLIFY
SEC. 9(A).  ON THE CONTRARY, THE NORMAL ASSUMPTION IS THAT WHERE
CONGRESS AMENDS ONLY ONE SECTION OF A LAW, LEAVING ANOTHER UNTOUCHED,
THE TWO WERE DESIGNED TO FUNCTION AS PARTS OF AN INTEGRATED WHOLE.  WE
SHOULD GIVE EACH AS FULL A PLAY AS POSSIBLE.  MOREOVER, WE ARE ABLE TO
FIND IN THE AMENDMENT TO SEC. 5(B) NO SUGGESTION OR INDICATION THAT
CONGRESS WAS WRITING A DIFFERENT STATUTE OF LIMITATIONS THAN WAS THEN
CONTAINED IN SEC. 9(E).  THE 1941 AMENDMENT IS AS SILENT ON THAT SCORE
AS IT IS ON THE RIGHT TO SUE AFFORDED BY SEC. 9(A). 

IT IS TRUE THAT SEC. 5(B) GAVE A BROADER GRANT OF AUTHORITY TO THE
EXECUTIVE THAN HAD EXISTED UNDER THE ORIGINAL ACT.  FN5  AS RESPECTS
THE SEIZURE OF PROPERTY IT PROVIDES:  "ANY PROPERTY OR INTEREST OF ANY
FOREIGN COUNTRY OR NATIONAL THEREOF SHALL VEST, WHEN, AS, AND UPON THE
TERMS, DIRECTED BY THE PRESIDENT, IN SUCH AGENCY OR PERSON AS MAY BE
DESIGNATED FROM TIME TO TIME BY THE PRESIDENT, AND UPON SUCH TERMS AND
CONDITIONS AS THE PRESIDENT MAY PRESCRIBE SUCH INTEREST OR PROPERTY
SHALL BE HELD, USED, ADMINISTERED, LIQUIDATED, SOLD, OR OTHERWISE DEALT
WITH IN THE INTEREST OF AND FOR THE BENEFIT OF THE UNITED STATES, AND
SUCH DESIGNATED AGENCY OR PERSON MAY PERFORM ANY AND ALL ACTS INCIDENT
TO THE ACCOMPLISHMENT OR FURTHERANCE OF THESE PURPOSES." 

IT IS SAID THAT THE SURVIVAL OF THE PRIVILEGE OF SATISFYING DEBT
CLAIMS AS A MATTER OF RIGHT OUT OF VESTED PROPERTY IS INCONSISTENT WITH
THE NEW POWER GRANTED THE EXECUTIVE BY SEC. 5(B) TO MAKE ANY
AFFIRMATIVE USE OF THE PROPERTY THAT THE NATIONAL INTEREST IN TIME OF
WAR MIGHT REQUIRE.  BUT WE ARE HERE CONCERNED SOLELY WITH THE RIGHT TO
SUE ON A DEBT, NOT WITH THE RIGHT TO SUE TO RECLAIM PROPERTY NOR WITH
ANY QUESTION CONCERNING THE SATISFACTION OF ANY JUDGMENT WHICH MAY BE
OBTAINED.  WE ONLY HOLD THAT THE RIGHT TO SUE ON A DEBT GRANTED BY SEC.
9(A) HAS NOT BEEN WHOLLY WITHDRAWN AND THAT SEC. 9(E) IS NOT APPLICABLE
TO THIS CLASS OF CLAIMS.  WE CANNOT SEE THAT THE ALLOWANCE OF A SUIT ON
A DEBT AS PRESCRIBED BY SEC. 9(A) COLLIDES WITH THE POLICY OF SEC.
5(B).  THAT DOES NOT IN ANY WAY CAUSE INTERFERENCE WITH THE
ADMINISTRATION OF THE VESTED PROPERTY PURSUANT TO SEC. 5(B).  SEC.
9(A), TO BE SURE, CONTAINS A PROVISION WHICH PRESCRIBES HOW ANY
JUDGMENT OBTAINED IN THE SUIT AGAINST THE CUSTODIAN OR TREASURER SHALL
BE SATISFIED; FN6  AND ALSO ALLOWS SUITS TO RECLAIM PROPERTY.  FN7
WHETHER THOSE PROVISIONS HAVE BEEN SUPERSEDED BY SEC. 5(B) OR WHETHER
SEC. 5(B) CONTAINS A GRANT OF AUTHORITY WHICH MAY BE SO EXERCISED AS TO
PREVENT THE RECLAMATION OF PROPERTY OR THE PAYMENT OF THE JUDGMENT OR
TO ALTER THE PROCEDURE FOR RECLAMATION OR PAYMENT AS PRESCRIBED IN SEC.
9(A) ARE DISTINCT QUESTIONS.  HERE WE ARE DEALING SOLELY WITH THE RIGHT
TO MAINTAIN A SUIT ON A DEBT, A RIGHT WHICH IS NOT SHOWN TO COLLIDE
WITH SEC. 5(B).  WE RESERVE DECISION ON THE OTHER QUESTIONS. 
AFFIRMED. 

FN1  SEE VESTING ORDER 218, DATED OCTOBER 7, 1942, 7 FED. REG. 9466;
VESTING ORDER 468, DATED DECEMBER 9, 1942, 8 FED. REG. 1038.  FOR THE
ESTABLISHMENT OF THE OFFICE OF ALIEN PROPERTY CUSTODIAN AND THE
DEFINITION OF HIS FUNCTIONS AS RESPECTS THE VESTING OF ALIEN PROPERTY,
SEE EXECUTIVE ORDER 9193, DATED JULY 6, 1942, 7 FED. REG. 5205,
AMENDING EXECUTIVE ORDER 9095, DATED MARCH 11, 1942, 7 FED. REG. 1971. 

FN2  AS THE CIRCUIT COURT OF APPEALS POINTED OUT, THAT FOLLOWED FROM
SEVERAL CIRCUMSTANCES:  (A) SEC. 2(C) DEFINED "THE BEGINNING OF THE
WAR" TO MEAN "MIDNIGHT ENDING THE DAY ON WHICH CONGRESS HAS DECLARED OR
SHALL DECLARE WAR OR THE EXISTENCE OF A STATE OF WAR"; (B) SEC. 302 OF
THE FIRST WAR POWERS ACT, APPROVED DECEMBER 18, 1941(55 STAT. 838, 840)
ASSUMED THAT THE TRADING WITH THE ENEMY ACT HAD NOT BEEN IN FORCE
BEFORE DECEMBER 8, 1941, AND THAT IT WENT INTO EFFECT AGAIN AT THAT
TIME; AND (C) SEC. 5(B) OF THE TRADING WITH THE ENEMY ACT WAS AMENDED
DECEMBER 18, 1941, BY THE FIRST WAR POWERS ACT WITHOUT ANY MENTION OF
THE OTHER PARTS OF THE EARLIER ACT.  55 STAT. 839.    FN3  SEE H. REP.
NO. 1089, 66TH CONG., 2D SESS.; S. REP. NO. 273, 70TH CONG., 1ST SESS.,
P. 29; H. REP. NO. 17, 70TH CONG., 1ST SESS., P. 20.  IN S. REP. NO.
273, SUPRA, IT WAS STATED:  "UNDER THE EXISTING LAW A CREDITOR OF A
PERSON WHOSE PROPERTY WAS SEIZED BY THE ALIEN PROPERTY CUSTODIAN MAY
FILE A CLAIM AND INSTITUTE PROCEEDINGS FOR THE PAYMENT OF THE DEBT,
UNDER CERTAIN CONDITIONS.  INASMUCH AS THESE CLAIMANTS HAVE HAD MORE
THAN 10 YEARS IN WHICH TO FILE THEIR CLAIMS, THIS PROVISION IS AMENDED
BY SUBSECTION (B) OF SECTION 12 OF THE PROPOSED BILL SO AS TO PERMIT
PAYMENT ONLY WHERE THE CLAIM WAS FILED PRIOR TO THE DATE OF THE
ENACTMENT OF THE BILL." 

FN4  THIS PROGRAM, INITIATED BY EXECUTIVE ORDER 8389, DATED APRIL 10,
1940, 5 FED. REG. 1400, WAS RATIFIED BY CONGRESS ON MAY 7, 1940, BY
JOINT RESOLUTION.  54 STAT. 179. 

FN5  AS STATED IN H. REP. NO. 1507, 77TH CONG., 1ST SESS., PP. 2-3: 

"SECTION 5(B) OF THE TRADING WITH THE ENEMY ACT HAS BEEN CONTINUED
DOWN TO THE PRESENT TIME.  THE EXISTING SYSTEM OF FOREIGN PROPERTY
CONTROL (COMMONLY KNOWN AS FREEZING CONTROL) IS BASED ON THAT
SUBDIVISION AS LAST AMENDED ON MAY 7, 1940.  THAT SUBDIVISION OF
POWERS TO TAKE, ADMINISTER, CONTROL, USE, LIQUIDATE, ETC., SUCH
FOREIGNOWNED PROPERTY THAT WOULD BE GIVEN BY SECTION 301 OF THE BILL. 

"AT PRESENT THE GOVERNMENT EXERCISES SUPERVISION OVER TRANSACTIONS IN
FOREIGN PROPERTY, EITHER BY PROHIBITING SUCH TRANSACTIONS OR BY
PERMITTING THEM ON CONDITION AND UNDER LICENSE.  IT IS, THEREFORE, A
SYSTEM WHICH CAN PREVENT TRANSACTIONS IN FOREIGN PROPERTY PREJUDICIAL
TO THE BEST INTERESTS OF THE UNITED STATES, BUT IT IS NOT A SYSTEM
WHICH CAN AFFIRMATIVELY COMPEL THE USE AND APPLICATION OF FOREIGN
PROPERTY IN THOSE INTERESTS. 

"SECTION 301 REMEDIES THAT SITUATION BY ADDING TO THE EXISTING
FREEZING CONTROL, IN SUBSTANCE, THE POWERS CONTAINED IN THE TRADING
WITH THE ENEMY ACT WITH RESPECT TO ALIEN PROPERTY, EXTENDING THOSE
POWERS, AND ADDING A FLEXIBILITY OF CONTROL WHICH EXPERIENCE UNDER THE
ORIGINAL ACT AND THE RECENT EXPERIENCE UNDER FREEZING CONTROL HAVE
DEMONSTRATED TO BE ADVISABLE.  THE PROVISIONS OF SECTION 301 WOULD
PERMIT THE ESTABLISHMENT OF A COMPLETE SYSTEM OF ALIEN PROPERTY
TREATMENT.  IT VESTS FLEXIBLE POWERS IN THE PRESIDENT, OPERATING
THROUGH SUCH AGENCY OR AGENCIES AS HE MIGHT CHOOSE, TO DEAL WITH THE
PROBLEMS THAT SURROUND ALIEN PROPERTY OR ITS OWNERSHIP OR CONTROL IN
THE MANNER DEEMED MOST EFFECTIVE IN EACH PARTICULAR CASE.  IN THIS
RESPECT THE BILL AVOIDS THE RIGIDITY AND INFLEXIBILITY WHICH
CHARACTERIZED THE ALIEN PROPERTY CUSTODIAN LAW ENACTED DURING THE LAST
WAR.  THE NECESSITY FOR FLEXIBILITY IN LEGISLATION ON THIS SUBJECT IS
ACCENTUATED BY THE VASTNESS OF THE ALIEN PROPERTY PROBLEM CONFRONTING
THE GOVERNMENT TODAY.  AT THE PEAK OF HIS ACTIVITY, THE ALIEN PROPERTY
CUSTODIAN OF THE LAST WAR ADMINISTERED PROPERTY VALUED AT SOMETHING
OVER $500,000,000.  TODAY THERE IS OVER $7,000,000,000 WORTH OF
PROPERTY ALREADY SUBJECT TO THE EXISTING CONTROL." 

AND SEE S. REP. NO. 911, 77TH CONG., 1ST SESS., P. 2. 

FN6  "IF SUIT SHALL BE SO INSTITUTED, THEN SUCH MONEY OR PROPERTY
SHALL BE RETAINED IN THE CUSTODY OF THE ALIEN PROPERTY CUSTODIAN, OR IN
THE TREASURY OF THE UNITED STATES, AS PROVIDED IN THIS ACT, AND UNTIL
ANY FINAL JUDGMENT OR DECREE WHICH SHALL BE ENTERED IN FAVOR OF THE
CLAIMANT SHALL BE FULLY SATISFIED BY PAYMENT OR CONVEYANCE, TRANSFER,
ASSIGNMENT, OR DELIVERY BY THE DEFENDANT, OR BY THE ALIEN PROPERTY
CUSTODIAN, OR TREASURER OF THE UNITED STATES ON ORDER OF THE COURT, OR
UNTIL FINAL JUDGMENT OR DECREE SHALL BE ENTERED AGAINST THE CLAIMANT OR
SUIT OTHERWISE TERMINATED." 

FN7  SEC. 9(A) ALLOWS SUITS BY "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," AS
WELL AS SUITS BY ANY SUCH PERSON TO WHOM A DEBT MAY BE OWING FROM ANY
ENEMY OR ALLY OF ENEMY WHOSE PROPERTY HAS BEEN SEIZED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BURTON, CONCURRING. 

A REVIEW OF THE DEVELOPMENT OF THE TRADING WITH THE ENEMY ACT FROM
ITS INCEPTION IN 1917, EARLY IN WORLD WAR I, FURTHER DISCLOSES ITS DUAL
PURPOSES IN A WAY THAT THROWS NEEDED LIGHT UPON ITS MEANING AT THE TIME
OF THIS PROCEEDING IN 1944, LATE IN WORLD WAR II. 

IT ORIGINATED AS H.R. 4960, JUNE 11, 1917, DRAFTED IN THE FORM OF
PERMANENT LEGISLATION.  ITS PURPOSES WERE EXPLAINED BY HOUSE AND SENATE
COMMITTEES IN TERMS SUITED TO PERMANENT LEGISLATION.  FN1  BEFORE ITS
PASSAGE, SEVERAL AMENDMENTS WERE INSERTED WHICH LIMITED SPECIFIC
LIMITED SEC. 9 OR THE ACT AS A WHOLE.  OTHER SECTIONS WERE LIMITED BY
REFERENCES MADE TO SPECIFIC NATIONS AND STILL OTHERS BY REFERENCES TO
SPECIFIC DATES.  LATER AMENDMENTS ADDED OTHER PROVISIONS CONFINED TO
WORLD WAR I. HOWEVER, NO GENERAL LIMITATION EVER HAS CONFINED THE ACT
AS A WHOLE OR ITS MAIN STRUCTURAL PROVISIONS TO A SPECIFIC WAR,
SPECIFIC NATIONS OR SPECIFIC DATES.  IN THIS WAY THE ACT HAS MET THE
IMMEDIATE NEEDS OF ITS TIME AND ALSO HAS STOOD READY TO MEET ADDITIONAL
WARS AND ADDITIONAL ENEMIES.  THE BEGINNING OF WORLD WAR II IN 1941
ACCORDINGLY FOUND MANY PROVISIONS OF THE ACT, SUCH AS SEC. 9(E),
LIMITED BY REFERENCES TO WORLD WAR I, AND OTHERS, SUCH AS SEC. 9(A),
NOT SO LIMITED. 

BY ITS TERMS, ITS NATURE AND ITS HISTORY, SEC. 9(E)  FN3  FROM ITS
INCEPTION HAS RELATED SOLELY TO WORLD WAR I. ITS RELATION TO WORLD WAR
I IS APPARENT ON ITS FACE.  ITS FIRST CLAUSE REFERS TO A RESTRICTION ON
THE ALLOWANCE OF A DEBT "TO ANY PERSON WHO IS A CITIZEN OR A SUBJECT OF
ANY NATION WHICH WAS ASSOCIATED WITH THE UNITED STATES IN THE
PROSECUTION OF THE WAR."  THESE WORDS, ENACTED IN 1920(41 STAT. 977,
980) AND REENACTED IN 1923(42 STAT. 1511, 1514), REFER TO ANY NATION
"ASSOCIATED" WITH US IN WORLD WAR I. "ASSOCIATED" WAS THEN A WORD OF
ART. ITS SECOND CLAUSE READS, "NOR IN ANY EVENT SHALL A DEBT BE ALLOWED
UNDER THIS SECTION UNLESS IT WAS OWING TO AND OWNED BY THE CLAIMANT
PRIOR TO OCTOBER 6, 1917."  THIS REFERS TO THE EFFECTIVE DATE OF THE
ORIGINAL TRADING WITH THE ENEMY ACT.  THIS DATE PROVIDES A REASONABLE
TEST FOR DEBTS TO BE ALLOWED AGAINST PROPERTY SEIZED BY THE ALIEN
PROPERTY CUSTODIAN IN CONNECTION WITH WORLD WAR I. IT HAS NO REASONABLE
RELATION TO A WAR BEGINNING IN 1941.  TO REQUIRE CLAIMS TO BE MORE THAN
24 YEARS OLD IN ORDER TO BE ACCEPTABLE IS BEYOND REASON.  THE LAST
CLAUSE READS, "NOR SHALL A DEBT BE ALLOWED UNDER THIS SECTION UNLESS
NOTICE OF THE CLAIM HAS BEEN FILED, OR APPLICATION THEREFOR HAS BEEN
MADE, PRIOR TO THE DATE OF THE ENACTMENT OF THE SETTLEMENT OF WAR
CLAIMS ACT OF 1928."  THIS CLAUSE MEANS NOTHING WHEN APPLIED TO A CLAIM
LIKE THE PRESENT ONE WHICH WAS NOT EARNED UNTIL 1935. 

CLAIMS TO BE ALLOWED AGAINST ENEMY PROPERTY SEIZED IN WORLD WAR I. AS
SUCH IT IS REASONABLE.  IT IS NOT POSSIBLE, HOWEVER, THAT CONGRESS
INTENTIONALLY CHOSE THIS INDIRECT WAY OF SAYING THAT AMERICAN CREDITORS
MAY ASSERT JUST CLAIMS AGAINST ASSETS OF DEBTORS WHOSE PROPERTIES WERE
SEIZED IN WORLD WAR I, BUT NOT AGAINST ASSETS OF DEBTORS WHOSE
PROPERTIES MIGHT BE HELD IN CUSTODY BY THE ALIEN PROPERTY CUSTODIAN AS
A RESULT OF FUTURE WARS. 

THE LEGISLATIVE HISTORY EMPHASIZES THIS.  THE ORIGINAL TRADING WITH
THE ENEMY ACT, WHEN ENACTED, OCTOBER 6, 1917(40 STAT. 411), CONTAINED
TWO KINDS OF PROVISIONS.  THE GENERAL STRUCTURE OF THE ACT WAS IN TERMS
OF PERMANENT LEGISLATION.  SECTION 2 IN DEFINING TERMS REFRAINED FROM
REFERENCE TO THE WAR THEN IN PROGRESS OR TO SPECIFIC NATIONS OR FIXED
DATES.  FOR EXAMPLE, IT PROVIDED THAT: 

"THE WORDS 'THE BEGINNING OF THE WAR,' AS USED HEREIN, SHALL BE
DEEMED TO MEAN MIDNIGHT ENDING THE DAY ON WHICH CONGRESS HAS DECLARED
OR SHALL DECLARE WAR OR THE EXISTENCE OF A STATE OF WAR. 

"THE WORDS 'END OF THE WAR,' AS USED HEREIN, SHALL BE DEEMED TO MEAN
THE DATE OF PROCLAMATION OF EXCHANGE OF RATIFICATIONS OF THE TREATY OF
PEACE, UNLESS THE PRESIDENT SHALL, BY PROCLAMATION, DECLARE A PRIOR
DATE, IN WHICH CASE THE DATE SO PROCLAIMED SHALL BE DEEMED TO BE THE
'END OF THE WAR' WITHIN THE MEANING OF THIS ACT."  (50 U.S.C. APP.,
SEC. 2(C).) 

FOR TRADING UNDER PRESIDENTIAL LICENSE IN TIME OF WAR.  SECTION 5(B)
DEALT WITH THE REGULATION OF FOREIGN EXCHANGE, COIN EXPORT, TRANSFERS
OF CREDIT, ETC. SECTION 6 AUTHORIZED THE PRESIDENT TO APPOINT AN
OFFICIAL TO BE KNOWN AS THE ALIEN PROPERTY CUSTODIAN.  SECTION 9
PROVIDED FOR THE ASSERTION OF PROPERTY CLAIMS AND DEBT CLAIMS ON BEHALF
OF ANY PERSON NOT AN ENEMY OR ALLY OF ENEMY AGAINST CERTAIN ASSETS IN
THE POSSESSION OF THE CUSTODIAN. 

ON THE OTHER HAND, CERTAIN OTHER PROVISIONS WERE, FROM THE BEGINNING,
EARMARKED AS TEMPORARY PROVISIONS.  FOR EXAMPLE, SEC. 3(D) REFERRED TO
CERTAIN CENSORSHIP TO BE ESTABLISHED "DURING THE PRESENT WAR."  SECTION
4(A) REFERRED TO CERTAIN GERMAN INSURANCE COMPANIES.  SECTION 4(B)
REFERRED TO "THE PRESENT WAR."  SIMILAR REFERENCES TO "THE PRESENT WAR"
OCCURRED IN SECS. 11, 13 AND 14. 

PERMANENT NATURE.  IT HAS BEEN AMENDED NINE TIMES.  ITS FIRST PARAGRAPH
HAS BEEN PRESERVED, WITH SLIGHT CHANGES, AS SEC. 9(A) IN THE FORM OF
PERMANENT LEGISLATION.  ON THE OTHER HAND, MANY NEW SUBSECTIONS OF SEC.
9, INCLUDING SEC. 9(E), CONTAIN PROVISIONS SUITED ONLY TO TRANSACTIONS
GROWING OUT OF WORLD WAR I. THE FIRST AMENDMENT TO SEC. 9 WAS THAT OF
JULY 11, 1919(41 STAT. 35).  THIS THREATENED TO CONFUSE THE SITUATION. 
IT INSERTED IN THE FIRST PARAGRAPH A PROVISO REFERRING TO (41 STAT. 36)
"ALL PROPERTY HERETOFORE DETERMINED BY THE PRESIDENT TO HAVE BEEN HELD
...  FOR THE BENEFIT OF A PERSON WHO WAS AN ENEMY OR ALLY OF ENEMY" AND
TO "TERRITORY OF ANY NATION ASSOCIATED WITH THE UNITED STATES IN THE
PROSECUTION OF THE WAR WHICH WAS OCCUPIED BY THE MILITARY OR NAVAL
FORCES OF GERMANY OR AUSTRIA-HUNGARY, OR THEIR ALLIES."  ON JUNE 5,
1920, HOWEVER, THE SECOND AMENDMENT (41 STAT. 977) CORRECTED THIS AND
SET THE PATTERN WHICH HAS SINCE BEEN FOLLOWED.  IT REENACTED THE WHOLE
OF SEC. 9 AND, IN DOING SO, REMOVED FROM ITS FIRST PARAGRAPH THE 1919
PROVISO.  IT RESTORED THAT PARAGRAPH TO GENERAL TERMS AND GAVE IT THE
DESIGNATION OF SEC. 9(A) WHICH IT HAS RETAINED.  CONGRESS, AT THE SAME
TIME, ADDED SEVERAL SUBSECTIONS MOST OF WHICH CONTAINED EXPRESS
REFERENCES TO GERMANY AND AUSTRIA-HUNGARY.  SECTION 9(E) FIRST APPEARED
AT THAT TIME.  FROM THE BEGINNING, SEC. 9(E) CONTAINED ITS PRESENT
REFERENCES TO "ANY NATION WHICH WAS ASSOCIATED WITH THE UNITED STATES
IN THE PROSECUTION OF THE WAR" AND TO THE REQUIREMENT THAT A DEBT IN
ORDER TO BE ALLOWED UNDER THE SECTION MUST HAVE BEEN "OWING TO AND
OWNED BY THE CLAIMANT PRIOR TO OCTOBER 6, 1917."  LATER AMENDMENTS
EMPHASIZED THIS RESTRICTION OF SEC. 9(E) TO WORLD WAR I, WHILE
PRESERVING THE GENERAL AND PERMANENT CHARACTER OF SEC. 9(A).  FN4
DISTORTION OF THE MEANING OF STATUTORY LANGUAGE WOULD RESULT NOT FROM
LIMITING SEC. 9(E) TO WORLD WAR I BUT FROM APPLYING IT TO WORLD WAR
II. 

IT IS ARGUED THAT TO EXCLUDE THE DEFENSE WHICH IS CLAIMED TO BE
SUPPLIED BY SEC. 9(E) AGAINST DEBTS PAYABLE OUT OF PROPERTY VESTED IN
THE CUSTODIAN DURING WORLD WAR II, UNDER SEC. 5(B), AS AMENDED BY THE
FIRST WAR POWERS ACT, DECEMBER 18, 1941(55 STAT. 839), WILL RESULT IN
INEQUITIES.  FOR EXAMPLE, IT IS URGED THAT SEC. 5(B) WAS AMENDED IN
1941 TO PERMIT VESTING IN THE CUSTODIAN OF PROPERTY OF "ANY FOREIGN
COUNTRY OR NATIONAL THEREOF."  HOWEVER, SEC. 9(A) HAS NOT BEEN AMENDED
CORRESPONDINGLY TO PERMIT THE ASSERTION OF CLAIMS TO THE PAYMENT OF
DEBTS OUT OF THE PROPERTY OF A FOREIGN NATIONAL AS DISTINGUISHED FROM
THAT OF AN "ENEMY OR ALLY OF ENEMY."  FROM THIS IT IS ARGUED THAT
CONGRESS SHOULD NOT BE REGARDED AS HAVING INTENDED TO CREATE SUCH
INEQUITIES, IF THERE BE SUCH, BETWEEN CREDITORS OF "ENEMIES" AND THOSE
OF OTHER "FOREIGN NATIONALS," THROUGH THE PASSAGE OF THE FIRST WAR
POWERS ACT; AND THAT, THEREFORE, CONGRESS MUST BE REGARDED AS HAVING
INTENDED THAT SEC. 9(E) ELIMINATE ALL CREDITORS' CLAIMS UNDER SEC. 9(A)
AGAINST PROPERTY OF ENEMIES AND OF ALLIES OF ENEMIES, UNLESS FILED OR
CLAIMED BEFORE MARCH 10, 1928. 

THIS AMOUNTS TO AN ARGUMENT THAT BECAUSE SUBSEQUENT LEGISLATION HAS
PRODUCED INEQUITABLE RESULTS, THEREFORE PRE-EXISTING LEGISLATION SHOULD
BE REINTERPRETED SO AS TO ELIMINATE THESE SUBSEQUENTLY CREATED
INEQUITIES.  IF THE MEANING OF SEC. 9(E) WAS RESTRICTED TO WORLD WAR I
PRIOR TO THE ENACTMENT OF THE FIRST WAR POWERS ACT, THE FIRST WAR
POWERS ACT CANNOT CHANGE THE MEANING OF SEC. 9(E) WITHOUT AMENDING IT,
AND IT DOES NOT AMEND IT.  A SUGGESTION THAT AMENDATORY LEGISLATION
MIGHT NOW BE HELPFUL IS FOUND IN BILLS RECENTLY INTRODUCED IN CONGRESS
WITH THE SUPPORT OF THE ALIEN PROPERTY CUSTODIAN.  THE HEARINGS
EMPHASIZE THAT NEED.  FN5 

FURTHERMORE, THE INTERPRETATION NOW URGED TO OFFSET INEQUITIES WOULD
CREATE OTHER INEQUITIES.  FOR EXAMPLE, THE PROPOSED INTERPRETATION
WOULD RESULT IN AN INEQUITY TO THE RESPONDENT IN THE PRESENT CASE.  HE
IS AN AMERICAN CITIZEN WITH AN ADMITTEDLY GOOD CLAIM FOR ABOUT $7,000
EARNED IN 1935, AGAINST AN ENEMY CORPORATION, ASSETS OF WHICH IN THE
HANDS OF THE ALIEN PROPERTY CUSTODIAN ARE AMPLE TO PAY THE CLAIM.  THE
CLAIMANT FILED HIS CLAIM WITHIN THE ONE YEAR PRESCRIBED IN THE ORDER
VESTING THE ASSETS OF THE ENEMY COMPANY IN THE CUSTODIAN.  FN6  THE
CLAIMANT IS NOW MET WITH A DEFENSE THAT HE CANNOT RECOVER BECAUSE HE
FAILED TO FILE HIS CLAIM BEFORE MARCH 10, 1928, WHICH WAS SEVEN YEARS
BEFORE IT WAS EARNED AND FOURTEEN YEARS BEFORE THE ASSETS HAD BEEN
VESTED IN THE CUSTODIAN WITH WHOM HE IS ASKED TO FILE HIS NOTICE.  THE
DECISION AS TO THE EXISTENCE OF INEQUITIES UNDER THE 1941 AMENDMENT AND
AS TO THE BEST WAY TO DEAL WITH THEM LAY WITH CONGRESS IN 1941 AND
STILL LIES THERE.    THE ACT NEVER HAS HAD A TERMINATION CLAUSE AND WAS
EXPRESSLY EXCLUDED FROM THE JOINT RESOLUTION OF MARCH 3, 1921(41 STAT.
1359), WHICH DECLARED THAT CERTAIN ACTS OF CONGRESS SHOULD BE CONSTRUED
AS IF THE WAR HAD ENDED AND THE PRESENT OR THEN EXISTING EMERGENCY HAD
EXPIRED.  THE SETTLEMENT OF WAR CLAIMS ACT OF 1928  FN7  WAS ENGRAFTED
UPON THE TRADING WITH THE ENEMY ACT WITHOUT AFFECTING ITS GENERAL
STRUCTURE OR ITS LIFE.  IN THE NATURAL COURSE OF EVENTS WORLD WAR I
CLAIMS ULTIMATELY WOULD HAVE BEEN DISPOSED OF AND YET THE MAIN
STRUCTURE OF THE ACT WOULD HAVE REMAINED ON THE BOOKS READY FOR LATER
USE.  THAT THIS WAS CONTEMPLATED IS EVIDENCED BY EXECUTIVE ORDER 6694,
MAY 1, 1934.  FN8  THIS WAS ISSUED UNDER AUTHORITY OF THE
REORGANIZATION ACT OF MARCH 3, 1933(47 STAT. 1489, 1517).  SECTION 1
EXPRESSLY ABOLISHED THE OFFICE OF THE ALIEN PROPERTY CUSTODIAN AND
TRANSFERRED THE "AUTHORITY, RIGHTS, PRIVILEGES, POWERS, AND DUTIES
CONFERRED AND IMPOSED ON THE ALIEN PROPERTY CUSTODIAN BY LAW AND/OR
EXECUTIVE ORDER  ...  TO THE DEPARTMENT OF JUSTICE, TO BE ADMINISTERED
UNDER THE SUPERVISION OF THE ATTORNEY GENERAL."  THIS INCORPORATED THE
OFFICE OF THE ALIEN PROPERTY CUSTODIAN INTO THE PERMANENT STRUCTURE OF
THE GOVERNMENT.  WITHIN THE DEPARTMENT OF JUSTICE THE RIGHTS,
PRIVILEGES, POWERS AND DUTIES CONFERRED UPON THE ALIEN PROPERTY
CUSTODIAN WERE PLACED UNDER THE ATTORNEY GENERAL AND WERE LATER
EXERCISED LARGELY THROUGH HIM OR THE ASSISTANT ATTORNEY GENERAL IN
CHARGE OF THE CLAIMS DIVISION IN THE DEPARTMENT OF JUSTICE.  ON MAY 15,
1939, BY EXECUTIVE ORDER 8136, 4 FED. REG. 2044, ALL POWER AND
AUTHORITY CONFERRED UPON THE PRESIDENT BY SECS. 9, 12, 20 AND 21 OF THE
TRADING WITH THE ENEMY ACT AND ALL POWER AND AUTHORITY WHICH THE
PRESIDENT UNDER THAT ACT HAD THERETOFORE ORDERED TO BE EXERCISED
THROUGH THE ALIEN PROPERTY CUSTODIAN WERE VESTED IN AND REQUIRED TO BE
EXERCISED THROUGH THE ATTORNEY GENERAL OR THE ASSISTANT ATTORNEY
GENERAL IN CHARGE OF THE CLAIMS DIVISION IN THE DEPARTMENT OF JUSTICE. 

IN THIS STATUS SEC. 9(A) AND OTHER PERMANENT PORTIONS OF THE TRADING
WITH THE ENEMY ACT AWAITED THE NEXT WAR.  IF LEFT IN THAT FORM THERE
WOULD HAVE BEEN NO INEQUITIES OTHER THAN THOSE WHICH HAD EXISTED IN
WORLD WAR I. THE ACT WOULD HAVE BEEN ADMINISTERED MUCH AS IT WAS IN
WORLD WAR I EXCEPT THAT IT WOULD HAVE BEEN ADMINISTERED THROUGH THE
ATTORNEY GENERAL AND THE DEPARTMENT OF JUSTICE INSTEAD OF THROUGH AN
INDEPENDENT AGENCY.  IN 1940, AT THE APPROACH OF WORLD WAR II, THE ACT
HAD MUCH THE SAME STRUCTURE IN SECS. 9(A), 9(E) AND 5(B) AS IT HAD IN
1928.  THE INEQUITIES DISCUSSED IN THIS PROCEEDING AROSE LATER FROM THE
SUBSTANTIAL EXPANSION OF SEC. 5(B).  FN9 

ON DECEMBER 18, 1941 CAME THE FIRST WAR POWERS ACT.  55 STAT. 839. 
NO STATUTORY OR EXECUTIVE ACTION WAS NEEDED TO MAKE THE MACHINERY OF
THE TRADING WITH THE ENEMY ACT AVAILABLE.  IT WAS ALREADY IN EFFECT
WITH THE FULL STATUTORY POWERS OF THE ALIEN PROPERTY CUSTODIAN VESTED
IN THE ATTORNEY GENERAL.  TITLE III OF THE FIRST WAR POWERS ACT
EXPRESSLY RECOGNIZED THE TRADING WITH THE ENEMY ACT BY AMENDING ONLY
SEC. 5(B) OF IT.  CONGRESS ALSO CONFIRMED ALL ACTIONS ALREADY TAKEN
"UNDER THE TRADING WITH THE ENEMY ACT" WHICH WOULD HAVE BEEN AUTHORIZED
"IF THE PROVISIONS OF THIS ACT (FIRST WAR POWERS ACT) AND THE
AMENDMENTS MADE BY IT HAD BEEN IN EFFECT." 

ON MARCH 11, 1942, THE PRESIDENT ISSUED EXECUTIVE ORDER 9095, 7 FED.
REG. 1971, ESTABLISHING IN THE OFFICE FOR EMERGENCY MANAGEMENT OF THE
EXECUTIVE OFFICE OF THE PRESIDENT, THE OFFICE OF ALIEN PROPERTY
CUSTODIAN, AT THE HEAD OF WHICH THERE AGAIN WOULD BE AN ALIEN PROPERTY
CUSTODIAN APPOINTED BY THE PRESIDENT.  BY EXECUTIVE ORDER 9142, APRIL
21, 1942, 7 FED. REG. 2985, EXPRESSLY ACTING UNDER THE CONSTITUTION AND
LAWS OF THE UNITED STATES, AND IN PARTICULAR UNDER TITLE I OF THE FIRST
WAR POWERS ACT, THE PRESIDENT TRANSFERRED "FOR THE CONTINUANCE OF THE
PRESENT WAR AND FOR SIX MONTHS AFTER THE TERMINATION THEREOF" TO "THE
ALIEN PROPERTY CUSTODIAN PROVIDED FOR BY EXECUTIVE ORDER NO. 9095,"
EVERYTHING THAT HAD BEEN TRANSFERRED TO THE ATTORNEY GENERAL BY
EXECUTIVE ORDER 6694 OF MAY 1, 1934, OR TO THE ASSISTANT ATTORNEY
GENERAL IN CHARGE OF THE CLAIMS DIVISION OF THE DEPARTMENT OF JUSTICE
UNDER EXECUTIVE ORDER 8136, MAY 15, 1939, 4 FED. REG. 2044. 

ON JULY 6, 1942, EXECUTIVE ORDER 9095 WAS AMENDED BY EXECUTIVE ORDER
9193, 7 FED. REG. 5205.  THE ALIEN PROPERTY CUSTODIAN "PROVIDED FOR BY
EXECUTIVE ORDER NO. 9095," AS AMENDED BY EXECUTIVE ORDER 9193, WAS THUS
GIVEN THE POWERS OF THE TRADING WITH THE ENEMY ACT AS FULLY AS IN WORLD
WAR I AND ALSO ADDITIONAL POWERS PROVIDED THROUGH AMENDMENTS INCLUDING
THE EXPANSION OF POWERS UNDER SEC. 5(B).  THESE AUTHORIZATIONS CARRIED
POWER TO ISSUE REGULATIONS PARTICULARLY IN CONNECTION WITH THE VESTING
OF PROPERTY AS WAS DONE BY THE VESTING ORDERS IN THIS CASE.  FN10  THE
ALIEN PROPERTY CUSTODIAN, IN TAKING OVER THE ADMINISTRATION OF THE
TRADING WITH THE ENEMY ACT, IS ENTITLED TO THE FULL SCOPE OF ITS
PERMANENT PROVISIONS WHETHER FOUND IN SEC. 5(B) OR SEC. 9(A) OR
ELSEWHERE. 

FOR THESE REASONS, SEC. 9(E) DOES NOT PRESENT A GROUND FOR DISMISSAL
OF THE COMPLAINT WHICH DEPENDS UPON SEC. 9(A) AND THE DECISION OF THE
CIRCUIT COURT OF APPEALS SHOULD BE AFFIRMED. 

FN1  "THE CHIEF OBJECTS OF THIS BILL ARE (1) TO RECOGNIZE AND APPLY
CONCRETELY, SUBJECT TO DEFINITE MODIFICATIONS, THE PRINCIPLE AND
PRACTICE OF INTERNATIONAL LAW INTERDICTING TRADE IN TIME OF WAR, AND
(2) TO CONSERVE AND UTILIZE UPON A BASIS OF PRACTICAL JUSTICE ENEMY
PROPERTY FOUND WITHIN THE JURISDICTION OF THE UNITED STATES....
ACCORDING TO AMERICAN LAW ONE OF THE IMMEDIATE CONSEQUENCES OF WAR IS
TO PUT AN END TO ALL COMMERCIAL RELATIONS BETWEEN CITIZENS OR SUBJECTS
OF BELLIGERENT NATIONS."  H.R. REP. NO. 85, 65TH CONG., 1ST SESS., 1,
JUNE 21, 1917.  "TO SUMMARIZE THE PURPOSE OF THE BILL IS NOT TO CREATE
NEW INTERNATIONAL RULES OR PRACTICES, BUT TO DEFINE AND MITIGATE
THEM."  H.R. REP. NO. 85, SUPRA, P. 2.  "THE PURPOSE OF THIS BILL IS TO
MITIGATE THE RULES OF LAW WHICH PROHIBIT ALL INTERCOURSE BETWEEN THE
CITIZENS OF WARRING NATIONS, AND TO PERMIT, UNDER CAREFUL SAFEGUARDS
AND RESTRICTIONS, CERTAIN KINDS OF BUSINESS TO BE CARRIED ON.  IT ALSO
PROVIDES FOR THE CARE AND ADMINISTRATION OF THE PROPERTY AND PROPERTY
RIGHTS OF ENEMIES AND THEIR ALLIES IN THIS COUNTRY PENDING THE WAR." 
SEN. REP. NO. 113, 65TH CONG., 1ST SESS., 1, AUG. 31, 1917. 

FN2  THE CONFERENCE REPORT INSERTED FIVE SUCH REFERENCES.  H.R. REP.
NO. 155, 65TH CONG., 1ST SESS., 3, 6, SEPTEMBER 21, 1917. 

FN3  SECTION 9(E) OF THE TRADING WITH THE ENEMY ACT, AS LAST AMENDED,
AUGUST 24, 1937(50 U.S.C. APP., SEC. 9(E)), IS AS FOLLOWS: 

"NO MONEY OR OTHER PROPERTY SHALL BE RETURNED NOR ANY DEBT ALLOWED
UNDER THIS SECTION TO ANY PERSON WHO IS A CITIZEN OR SUBJECT OF ANY
NATION WHICH WAS ASSOCIATED WITH THE UNITED STATES IN THE PROSECUTION
OF THE WAR, UNLESS SUCH NATION IN LIKE CASE EXTENDS RECIPROCAL RIGHTS
TO CITIZENS OF THE UNITED STATES:  PROVIDED, THAT ANY ARRANGEMENT MADE
BY A FOREIGN NATION FOR THE RELEASE OF MONEY AND OTHER PROPERTY OF
AMERICAN CITIZENS AND CERTIFIED BY THE SECRETARY OF STATE TO THE
ATTORNEY GENERAL AS FAIR AND THE MOST ADVANTAGEOUS ARRANGEMENT
OBTAINABLE SHALL BE REGARDED AS MEETING THIS REQUIREMENT; NOR IN ANY
EVENT SHALL A DEBT BE ALLOWED UNDER THIS SECTION UNLESS IT WAS OWING TO
AND OWNED BY THE CLAIMANT PRIOR TO OCTOBER 6, 1917, AND AS TO CLAIMANTS
OTHER THAN CITIZENS OF THE UNITED STATES UNLESS IT AROSE WITH REFERENCE
TO THE MONEY OR OTHER PROPERTY HELD BY THE ALIEN PROPERTY CUSTODIAN OR
TREASURER OF THE UNITED STATES HEREUNDER; NOR SHALL A DEBT BE ALLOWED
UNDER THIS SECTION UNLESS NOTICE OF THE CLAIM HAS BEEN FILED, OR
APPLICATION THEREFOR HAS BEEN MADE, PRIOR TO THE DATE OF THE ENACTMENT
OF THE SETTLEMENT OF WAR CLAIMS ACT OF 1928(ACT MARCH 10, 1928, CH.
167)." 

FN4  THE LATER AMENDMENTS WERE THOSE OF FEBRUARY 27, 1921(41 STAT.
1147), APPLYING SECS. 9(B)(2) AND (3) TO SITUATIONS WHERE A WOMAN
"PRIOR TO APRIL 6, 1917, INTERMARRIED WITH A SUBJECT OR CITIZEN OF
GERMANY OR AUSTRIA-HUNGARY"; 

DECEMBER 21, 1921(42 STAT. 351), AMENDING SEC. 9(A) TO PERMIT SUITS
TO BE BROUGHT EIGHTEEN MONTHS INSTEAD OF SIX MONTHS AFTER THE "END OF
THE WAR."  THE AMENDMENT DID NOT INSERT ANY CALENDAR DATE RELATING TO
WORLD WAR I ALTHOUGH PEACE HAD BEEN DECLARED JULY 2, 1921.  THE WORDS
"END OF THE WAR" MUST, THEREFORE, BE GIVEN THEIR GENERAL MEANING
APPLICABLE TO ALL WARS AS PROVIDED IN THE DEFINITIONS IN SEC. 2,
SUPRA; 

DECEMBER 27, 1922(42 STAT. 1065), AMENDING SEC. 9(A) TO PERMIT SUITS
TO BE BROUGHT 30 MONTHS INSTEAD OF 18 MONTHS AFTER THE "END OF THE
WAR"; 

MARCH 4, 1923(42 STAT. 1511), REENACTING THE WHOLE SEC. 9.  IN SEC.
9(A) IT OMITTED ALL LIMITATION ON THE TIME WITHIN WHICH SUITS MIGHT BE
BROUGHT.  IT ADDED NEW SUBSECTIONS ESPECIALLY ADAPTED TO WORLD WAR I
CLAIMS SUCH AS A RESTRICTION AGAINST CLAIMS ON BEHALF OF CITIZENS OF
THE UNITED STATES NATURALIZED SINCE NOVEMBER 11, 1918; 

MAY 7, 1926(44 STAT. 406), ADDING SECS. 9(B)(3A) AND (3B) AS TO
CITIZENS OF GERMANY, AUSTRIA, HUNGARY OR AUSTRIA-HUNGARY; 

MARCH 10, 1928(45 STAT. 254-279).  THIS WAS THE "SETTLEMENT OF WAR
CLAIMS ACT OF 1928."  IT DEALT EXPRESSLY WITH WORLD WAR I. IT WAS
CONCERNED WITH SUCH SUBJECTS AS THE "MIXED CLAIMS COMMISSION" AND "THE
TRIPARTITE CLAIMS COMMISSION."  IT AMENDED THE TRADING WITH THE ENEMY
ACT IN MANY DETAILS AS TO WORLD WAR I CLAIMS AND ADDED MANY NEW
PROVISIONS AS TO THOSE CLAIMS.  IT ADDED SUBSECTIONS TO SEC. 9.  IN
SEC. 9(E) IT INSERTED THE CLAUSE WHICH REQUIRED THAT NOTICES OF CLAIMS
MUST HAVE BEEN FILED OR APPLICATIONS FOR CLAIMS MUST HAVE BEEN MADE
BEFORE THE ENACTMENT OF THE SETTLEMENT OF WAR CLAIMS ACT OF 1928; 

AUGUST 24, 1937(50 STAT. 748), AMENDING SEC. 9(E) BY INSERTING THE
PROVISO AS TO ARRANGEMENTS WHICH WILL BE REGARDED AS MEETING THE
REQUIREMENTS OF RECIPROCAL RIGHTS. 

FN5  S. 1940, H.R. 4840 AND H.R. 5031 WERE INTRODUCED IN THE 78TH
CONGRESS.  H.R. 1530 WAS INTRODUCED IN THE 79TH CONGRESS, JANUARY 16,
1945.  SEE HEARINGS ON H.R. 4840 BEFORE SUBCOMMITTEE NO. 1 OF THE
COMMITTEE ON THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES, 78TH CONG.,
2D SESS., SERIAL NO. 18, JUNE 9-15, 1944. 

FN6  SEE NOTE 10 INFRA. 

FN7  SEE NOTE 4 SUPRA. 

FN8  28 C.F.R. SEC. 4.1. 

FN9  THE DEVELOPMENT OF THE LAW ESPECIALLY AFFECTING SEC. 5(B) WHICH
TOOK PLACE DURING THE NATIONAL EMERGENCY PRIOR TO WORLD WAR II, DID NOT
CHANGE THE SITUATION ALTHOUGH IT DID EMPHASIZE THE CONNECTION OF THE
TRADING WITH THE ENEMY ACT WITH THE PERMANENT STRUCTURE OF THE FEDERAL
GOVERNMENT. 

FOR EXAMPLE, ON MARCH 9, 1933(48 STAT. 1), SEC. 5(B), RELATING TO
FOREIGN EXCHANGE, EXPORT OR HOARDING OF COIN, ETC., WAS AMENDED AS A
PART OF THE LEGISLATIVE PROGRAM TO MEET THE NATIONAL EMERGENCY IN
BANKING.  THE AMENDMENT THUS APPLIED THE POWER OF THE PRESIDENT UNDER
THIS ACT TO THE INTERNAL CONDITIONS OF THE COUNTRY RATHER THAN TO ITS
INTERNATIONAL RELATIONS.  THIS WAS SUPPLEMENTED BY EXECUTIVE ORDER
6560, JANUARY 15, 1934, 31 C.F.R. SEC. 127.0. 

FOLLOWING THE TRANSFER OF THE OFFICE OF THE ALIEN PROPERTY CUSTODIAN
TO THE DEPARTMENT OF JUSTICE, SEC. 9(E) RECEIVED A SLIGHT AMENDMENT ON
AUGUST 24, 1937.  (50 STAT. 748.)  SEE NOTE 4 SUPRA.  ADDITIONAL
RESPONSIBILITY UNDER THE ACT WAS PLACED UPON THE ATTORNEY GENERAL OR
THE ASSISTANT ATTORNEY GENERAL IN CHARGE OF CLAIMS ON MAY 15, 1939. 
EXECUTIVE ORDER 8136, 4 FED. REG. 2044.  ON APRIL 10, 1940, THE
PRESIDENT ISSUED EXECUTIVE ORDER 8389, 5 FED. REG. 1400, WHICH, UNDER
AUTHORITY OF SEC. 5(B), EXTENDED CONTROL OVER PROPERTY IN WHICH NORWAY
OR DENMARK OR ANY NATIONAL THEREOF HAD AN INTEREST.  THIS ACTION WAS
CONFIRMED AND FURTHER SUPPLEMENTED BY THE ACT OF MAY 7, 1940(54 STAT.
179).  THIS WAS SUBSTANTIALLY EXTENDED TO MANY OTHER NATIONS BY
EXECUTIVE ORDER 8785, JUNE 14, 1941, 6 FED. REG. 2897; PROCLAMATION NO.
2497, JULY 17, 1941, 6 FED. REG. 3555; EXECUTIVE ORDER 8832, JULY 26,
1941, 6 FED. REG. 3715; EXECUTIVE ORDER 8839, JULY 30, 1941, 6 FED.
REG. 3823; EXECUTIVE ORDER 8900, SEPTEMBER 15, 1941, 6 FED. REG. 4795;
EXECUTIVE ORDER 8963, DECEMBER 9, 1941, 6 FED. REG. 6348. 

FN10  "WITHOUT LIMITATION AS TO ANY OTHER POWERS OR AUTHORITY OF THE
SECRETARY OF THE TREASURY OR THE ALIEN PROPERTY CUSTODIAN UNDER ANY
OTHER PROVISION OF THIS EXECUTIVE ORDER, THE SECRETARY OF THE TREASURY
AND THE ALIEN PROPERTY CUSTODIAN ARE AUTHORIZED AND EMPOWERED, EITHER
JOINTLY OR SEVERALLY, TO PRESCRIBE FROM TIME TO TIME, REGULATIONS,
RULINGS, AND INSTRUCTIONS TO CARRY OUT THE PURPOSES OF THIS EXECUTIVE
ORDER."  SEC. 4, EXECUTIVE ORDER 9193, JULY 6, 1942, 7 FED. REG. 5205. 
SEE ALSO, PROVISIONS OF THE VESTING ORDERS AS TO NOTICE OF CLAIMS
AGAINST THE PROPERTY INVOLVED IN THIS PROCEEDING. 

EACH OF THE VESTING ORDERS CITED IN THE COURT'S OPINION PROVIDES:
"ANY PERSON, EXCEPT A NATIONAL OF A DESIGNATED ENEMY COUNTRY, ASSERTING
ANY CLAIM ARISING AS A RESULT OF THIS ORDER MAY FILE WITH THE ALIEN
PROPERTY CUSTODIAN A NOTICE OF HIS CLAIM, TOGETHER WITH A REQUEST FOR A
HEARING THEREON, ON FORM APC-1, WITHIN ONE YEAR FROM THE DATE HEREOF,
OR WITHIN SUCH FURTHER TIME AS MAY BE ALLOWED BY THE ALIEN PROPERTY
CUSTODIAN.  NOTHING HEREIN CONTAINED SHALL BE DEEMED TO CONSTITUTE AN
ADMISSION OF THE EXISTENCE, VALIDITY OR RIGHT TO ALLOWANCE OF ANY SUCH
CLAIM."  THE AMENDED COMPLAINT IN THIS CASE ALLEGES, "A NOTICE OF THIS
CLAIM DATED AND VERIFIED JANUARY 19TH, 1943, WAS FILED WITH THE ALIEN
PROPERTY CUSTODIAN ON OR ABOUT THAT DATE AND BY HIM ASSIGNED THE NUMBER
F-38-98-1.  AN AMENDED AND SUPPLEMENTAL NOTICE OF THE CLAIM DATED AND
VERIFIED MAY 1ST, 1944, HAS, AT THE SUGGESTION OF THE ALIEN PROPERTY
CUSTODIAN, BEEN EXECUTED AND FILED AND A NEW NUMBER, TO WIT, 280 HAS
BEEN ASSIGNED THERETO."    MR. JUSTICE FRANKFURTER, HAVING CONCURRED IN
THE COURT'S OPINION, ALSO JOINS IN THESE VIEWS. 
..END :




INTERNAT. SHOE CO. V. WASHINGTON, 326 U.S. 310 


NO. 107.  ARGUED NOVEMBER 14, 1945.  - DECIDED DECEMBER 3, 1945.  - 22
WASH.2D 146, 154 P.2D 801, AFFIRMED. 


ACTIVITIES WITHIN A STATE OF SALESMEN IN THE EMPLOY OF A FOREIGN
CORPORATION, EXHIBITING SAMPLES OF MERCHANDISE AND SOLICITING ORDERS
FROM PROSPECTIVE BUYERS TO BE ACCEPTED OR REJECTED BY THE CORPORATION
AT A POINT OUTSIDE THE STATE, WERE SYSTEMATIC AND CONTINUOUS, AND
RESULTED IN A LARGE VOLUME OF INTERSTATE BUSINESS.  A STATUTE OF THE
STATE REQUIRES EMPLOYERS TO PAY INTO THE STATE UNEMPLOYMENT
COMPENSATION FUND A SPECIFIED PERCENTAGE OF THE WAGES PAID FOR THE
SERVICES OF EMPLOYEES WITHIN THE STATE.  HELD: 

1.  IN VIEW OF 26 U.S.C. SEC. 1606(A), PROVIDING THAT NO PERSON SHALL
BE RELIEVED FROM COMPLIANCE WITH A STATE LAW REQUIRING PAYMENTS TO AN
UNEMPLOYMENT FUND ON THE GROUND THAT HE IS ENGAGED IN INTERSTATE
COMMERCE, THE FACT THAT THE CORPORATION IS ENGAGED IN INTERSTATE
COMMERCE DOES NOT RELIEVE IT FROM LIABILITY FOR PAYMENTS TO THE STATE
UNEMPLOYMENT COMPENSATION FUND.  P. 315. 

2.  THE ACTIVITIES IN BEHALF OF THE CORPORATION RENDER IT AMENABLE TO
SUIT IN COURTS OF THE STATE TO RECOVER PAYMENTS DUE TO THE STATE
UNEMPLOYMENT COMPENSATION FUND.  P. 320. 

(A)  THE ACTIVITIES IN QUESTION ESTABLISHED BETWEEN THE STATE AND THE
CORPORATION SUFFICIENT CONTACTS OR TIES TO MAKE IT REASONABLE AND JUST,
AND IN CONFORMITY TO THE DUE PROCESS REQUIREMENTS OF THE FOURTEENTH
AMENDMENT, FOR THE STATE TO ENFORCE AGAINST THE CORPORATION AN
OBLIGATION ARISING OUT OF SUCH ACTIVITIES.  P. 320. 

(B)  IN SUCH A SUIT TO RECOVER PAYMENTS DUE TO THE UNEMPLOYMENT
COMPENSATION FUND, SERVICE OF PROCESS UPON ONE OF THE CORPORATION'S
SALESMEN WITHIN THE STATE, AND NOTICE SENT BY REGISTERED MAIL TO THE
CORPORATION AT ITS HOME OFFICE, SATISFIES THE REQUIREMENTS OF DUE
PROCESS.  P. 320. 

3.  THE TAX IMPOSED BY THE STATE UNEMPLOYMENT COMPENSATION STATUTE -
CONSTRUED BY THE STATE COURT, IN ITS APPLICATION TO THE CORPORATION, AS
A TAX ON THE PRIVILEGE OF EMPLOYING SALESMEN WITHIN THE STATE - DOES
NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  P.
321. 

INTERNATIONAL SHOE CO. V. STATE OF WASHINGTON ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

APPEAL FROM A JUDGMENT UPHOLDING THE CONSTITUTIONALITY OF A STATE
UNEMPLOYMENT COMPENSATION STATUTE AS APPLIED TO THE APPELLANT
CORPORATION. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS FOR DECISION ARE (1) WHETHER, WITHIN THE LIMITATIONS OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, APPELLANT, A
DELAWARE CORPORATION, HAS BY ITS ACTIVITIES IN THE STATE OF WASHINGTON
RENDERED ITSELF AMENABLE TO PROCEEDINGS IN THE COURTS OF THAT STATE TO
RECOVER UNPAID CONTRIBUTIONS TO THE STATE UNEMPLOYMENT COMPENSATION
FUND EXACTED BY STATE STATUTES, WASHINGTON UNEMPLOYMENT COMPENSATION
ACT, WASHINGTON REVISED STATUTES, SEC. 9998-103A THROUGH SEC. 9998
123A, 1941 SUPP., AND (2) WHETHER THE STATE CAN EXACT THOSE
CONTRIBUTIONS CONSISTENTLY WITH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT. 

THE STATUTES IN QUESTION SET UP A COMPREHENSIVE SCHEME OF
UNEMPLOYMENT COMPENSATION, THE COSTS OF WHICH ARE DEFRAYED BY
CONTRIBUTIONS REQUIRED TO BE MADE BY EMPLOYERS TO A STATE UNEMPLOYMENT
COMPENSATION FUND.  THE CONTRIBUTIONS ARE A SPECIFIED PERCENTAGE OF THE
WAGES PAYABLE ANNUALLY BY EACH EMPLOYER FOR HIS EMPLOYEES' SERVICES IN
THE STATE.  THE ASSESSMENT AND COLLECTION OF THE CONTRIBUTIONS AND THE
FUND ARE ADMINISTERED BY APPELLEES.  SECTION 14(C) OF THE ACT (WASH.
REV. STAT., 1941 SUPP., SEC. 9998-114C) AUTHORIZES APPELLEE
COMMISSIONER TO ISSUE AN ORDER AND NOTICE OF ASSESSMENT OF DELINQUENT
CONTRIBUTIONS UPON PRESCRIBED PERSONAL SERVICE OF THE NOTICE UPON THE
EMPLOYER IF FOUND WITHIN THE STATE, OR, IF NOT SO FOUND, BY MAILING THE
NOTICE TO THE EMPLOYER BY REGISTERED MAIL AT HIS LAST KNOWN ADDRESS. 
THAT SECTION ALSO AUTHORIZES THE COMMISSIONER TO COLLECT THE ASSESSMENT
BY DISTRAINT IF IT IS NOT PAID WITHIN TEN DAYS AFTER SERVICE OF THE
NOTICE.  BY SECS. 14E AND 6B THE ORDER OF ASSESSMENT MAY BE
ADMINISTRATIVELY REVIEWED BY AN APPEAL TRIBUNAL WITHIN THE OFFICE OF
UNEMPLOYMENT UPON PETITION OF THE EMPLOYER, AND THIS DETERMINATION IS
BY SEC. 6I MADE SUBJECT TO JUDICIAL REVIEW ON QUESTIONS OF LAW BY THE
STATE SUPERIOR COURT, WITH FURTHER RIGHT OF APPEAL IN THE STATE SUPREME
COURT AS IN OTHER CIVIL CASES. 

IN THIS CASE NOTICE OF ASSESSMENT FOR THE YEARS IN QUESTION WAS
PERSONALLY SERVED UPON A SALES SOLICITOR EMPLOYED BY APPELLANT IN THE
STATE OF WASHINGTON, AND A COPY OF THE NOTICE WAS MAILED BY REGISTERED
MAIL TO APPELLANT AT ITS ADDRESS IN ST. LOUIS, MISSOURI.  APPELLANT
APPEARED SPECIALLY BEFORE THE OFFICE OF UNEMPLOYMENT AND MOVED TO SET
ASIDE THE ORDER AND NOTICE OF ASSESSMENT ON THE GROUND THAT THE SERVICE
UPON APPELLANT'S SALESMAN WAS NOT PROPER SERVICE UPON APPELLANT; THAT
APPELLANT WAS NOT A CORPORATION OF THE STATE OF WASHINGTON AND WAS NOT
DOING BUSINESS WITHIN THE STATE; THAT IT HAD NO AGENT WITHIN THE STATE
UPON WHOM SERVICE COULD BE MADE; AND THAT APPELLANT IS NOT AN EMPLOYER
AND DOES NOT FURNISH EMPLOYMENT WITHIN THE MEANING OF THE STATUTE. 

THE MOTION WAS HEARD ON EVIDENCE AND A STIPULATION OF FACTS BY THE
APPEAL TRIBUNAL WHICH DENIED THE MOTION AND RULED THAT APPELLEE
COMMISSIONER WAS ENTITLED TO RECOVER THE UNPAID CONTRIBUTIONS.  THAT
ACTION WAS AFFIRMED BY THE COMMISSIONER; BOTH THE SUPERIOR COURT AND
THE SUPREME COURT AFFIRMED.  22 WASH.2D 146, 154 P.2D 801.  APPELLANT
IN EACH OF THESE COURTS ASSAILED THE STATUTE AS APPLIED, AS A VIOLATION
OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, AND AS IMPOSING
A CONSTITUTIONALLY PROHIBITED BURDEN ON INTERSTATE COMMERCE.  THE CAUSE
COMES HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 344(A), APPELLANT ASSIGNING AS ERROR THAT THE CHALLENGED STATUTES
AS APPLIED INFRINGE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
AND THE COMMERCE CLAUSE. 

THE FACTS AS FOUND BY THE APPEAL TRIBUNAL AND ACCEPTED BY THE STATE
SUPERIOR COURT AND SUPREME COURT, ARE NOT IN DISPUTE.  APPELLANT IS A
DELAWARE CORPORATION, HAVING ITS PRINCIPAL PLACE OF BUSINESS IN ST.
LOUIS, MISSOURI, AND IS ENGAGED IN THE MANUFACTURE AND SALE OF SHOES
AND OTHER FOOTWEAR.  IT MAINTAINS PLACES OF BUSINESS IN SEVERAL STATES,
OTHER THAN WASHINGTON, AT WHICH ITS MANUFACTURING IS CARRIED ON AND
FROM WHICH ITS MERCHANDISE IS DISTRIBUTED INTERSTATE THROUGH SEVERAL
SALES UNITS OR BRANCHES LOCATED OUTSIDE THE STATE OF WASHINGTON. 

APPELLANT HAS NO OFFICE IN WASHINGTON AND MAKES NO CONTRACTS EITHER
FOR SALE OR PURCHASE OF MERCHANDISE THERE.  IT MAINTAINS NO STOCK OF
MERCHANDISE IN THAT STATE AND MAKES THERE NO DELIVERIES OF GOODS IN
INTRASTATE COMMERCE.  DURING THE YEARS FROM 1937 TO 1940, NOW IN
QUESTION, APPELLANT EMPLOYED ELEVEN TO THIRTEEN SALESMEN UNDER DIRECT
SUPERVISION AND CONTROL OF SALES MANAGERS LOCATED IN ST. LOUIS.  THESE
SALESMEN RESIDED IN WASHINGTON; THEIR PRINCIPAL ACTIVITIES WERE
CONFINED TO THAT STATE; AND THEY WERE COMPENSATED BY COMMISSIONS BASED
UPON THE AMOUNT OF THEIR SALES.  THE COMMISSIONS FOR EACH YEAR TOTALED
MORE THAN $31,000.  APPELLANT SUPPLIES ITS SALESMEN WITH A LINE OF
SAMPLES, EACH CONSISTING OF ONE SHOE OF A PAIR, WHICH THEY DISPLAY TO
PROSPECTIVE PURCHASERS.  ON OCCASION THEY RENT PERMANENT SAMPLE ROOMS,
FOR EXHIBITING SAMPLES, IN BUSINESS BUILDINGS, OR RENT ROOMS IN HOTELS
OR BUSINESS BUILDINGS TEMPORARILY FOR THAT PURPOSE.  THE COST OF SUCH
RENTALS IS REIMBURSED BY APPELLANT. 

THE AUTHORITY OF THE SALESMEN IS LIMITED TO EXHIBITING THEIR SAMPLES
AND SOLICITING ORDERS FROM PROSPECTIVE BUYERS, AT PRICES AND ON TERMS
FIXED BY APPELLANT.  THE SALESMEN TRANSMIT THE ORDERS TO APPELLANT'S
OFFICE IN ST. LOUIS FOR ACCEPTANCE OR REJECTION, AND WHEN ACCEPTED THE
MERCHANDISE FOR FILLING THE ORDERS IS SHIPPED F.O.B. FROM POINTS
OUTSIDE WASHINGTON TO THE PURCHASERS WITHIN THE STATE.  ALL THE
MERCHANDISE SHIPPED INTO WASHINGTON IS INVOICED AT THE PLACE OF
SHIPMENT FROM WHICH COLLECTIONS ARE MADE.  NO SALESMAN HAS AUTHORITY TO
ENTER INTO CONTRACTS OR TO MAKE COLLECTIONS. 

THE SUPREME COURT OF WASHINGTON WAS OF OPINION THAT THE REGULAR AND
SYSTEMATIC SOLICITATION OF ORDERS IN THE STATE BY APPELLANT'S SALESMEN,
RESULTING IN A CONTINUOUS FLOW OF APPELLANT'S PRODUCT INTO THE STATE,
WAS SUFFICIENT TO CONSTITUTE DOING BUSINESS IN THE STATE SO AS TO MAKE
APPELLANT AMENABLE TO SUIT IN ITS COURTS.  BUT IT WAS ALSO OF OPINION
THAT THERE WERE SUFFICIENT ADDITIONAL ACTIVITIES SHOWN TO BRING THE
CASE WITHIN THE RULE FREQUENTLY STATED, THAT SOLICITATION WITHIN A
STATE BY THE AGENTS OF A FOREIGN CORPORATION PLUS SOME ADDITIONAL
ACTIVITIES THERE ARE SUFFICIENT TO RENDER THE CORPORATION AMENABLE TO
SUIT BROUGHT IN THE COURTS OF THE STATE TO ENFORCE AN OBLIGATION
ARISING OUT OF ITS ACTIVITIES THERE.  INTERNATIONAL HARVESTER CO. V.
KENTUCKY, 234 U.S. 579, 587; PEOPLE'S TOBACCO CO. V. AMERICAN TOBACCO
CO., 246 U.S. 79, 87; FRENE V. LOUISVILLE CEMENT CO., 77 U.S. APP. D.C.
129, 134 F.2D 511, 516.  THE COURT FOUND SUCH ADDITIONAL ACTIVITIES IN
THE SALESMEN'S DISPLAY OF SAMPLES SOMETIMES IN PERMANENT DISPLAY ROOMS,
AND THE SALESMEN'S RESIDENCE WITHIN THE STATE, CONTINUED OVER A PERIOD
OF YEARS, ALL RESULTING IN A SUBSTANTIAL VOLUME OF MERCHANDISE
REGULARLY SHIPPED BY APPELLANT TO PURCHASERS WITHIN THE STATE.  THE
COURT ALSO HELD THAT THE STATUTE AS APPLIED DID NOT INVADE THE
CONSTITUTIONAL POWER OF CONGRESS TO REGULATE INTERSTATE COMMERCE AND
DID NOT IMPOSE A PROHIBITED BURDEN ON SUCH COMMERCE. 

APPELLANT'S ARGUMENT, RENEWED HERE, THAT THE STATUTE IMPOSES AN
UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE NEED NOT DETAIN US.  FOR
53 STAT. 1391, 26 U.S.C. SEC. 1606(A) PROVIDES THAT "NO PERSON REQUIRED
UNDER A STATE LAW TO MAKE PAYMENTS TO AN UNEMPLOYMENT FUND SHALL BE
RELIEVED FROM COMPLIANCE THEREWITH ON THE GROUND THAT HE IS ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE, OR THAT THE STATE LAW DOES NOT
DISTINGUISH BETWEEN EMPLOYEES ENGAGED IN INTERSTATE OR FOREIGN COMMERCE
AND THOSE ENGAGED IN INTRASTATE COMMERCE."  IT IS NO LONGER DEBATABLE
THAT CONGRESS, IN THE EXERCISE OF THE COMMERCE POWER, MAY AUTHORIZE THE
STATES, IN SPECIFIED WAYS, TO REGULATE INTERSTATE COMMERCE OR IMPOSE
BURDENS UPON IT.  KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENTRAL R.
CO., 299 U.S. 334; PERKINS V. PENNSYLVANIA, 314 U.S. 586; STANDARD
DREDGING CORP. V. MURPHY, 319 U.S. 306, 308; HOOVEN & ALLISON CO. V.
EVATT, 324 U.S. 652, 679; SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S.
761, 769. 

APPELLANT ALSO INSISTS THAT ITS ACTIVITIES WITHIN THE STATE WERE NOT
SUFFICIENT TO MANIFEST ITS "PRESENCE" THERE AND THAT IN ITS ABSENCE THE
STATE COURTS WERE WITHOUT JURISDICTION, THAT CONSEQUENTLY IT WAS A
DENIAL OF DUE PROCESS FOR THE STATE TO SUBJECT APPELLANT TO SUIT.  IT
REFERS TO THOSE CASES IN WHICH IT WAS SAID THAT THE MERE SOLICITATION
OF ORDERS FOR THE PURCHASE OF GOODS WITHIN A STATE, TO BE ACCEPTED
WITHOUT THE STATE AND FILLED BY SHIPMENT OF THE PURCHASED GOODS
INTERSTATE, DOES NOT RENDER THE CORPORATION SELLER AMENABLE TO SUIT
WITHIN THE STATE.  SEE GREEN V. CHICAGO, B. & Q.R. CO., 205 U.S. 530,
533; INTERNATIONAL HARVESTER CO. V. KENTUCKY, SUPRA, 586-587;
PHILADELPHIA & READING R. CO. V. MCKIBBIN, 243 U.S. 264, 268; PEOPLE'S
TOBACCO CO. V. AMERICAN TOBACCO CO., SUPRA, 87.  AND APPELLANT FURTHER
ARGUES THAT SINCE IT WAS NOT PRESENT WITHIN THE STATE, IT IS A DENIAL
OF DUE PROCESS TO SUBJECT IT TO TAXATION OR OTHER MONEY EXACTION.  IT
THUS DENIES THE POWER OF THE STATE TO LAY THE TAX OR TO SUBJECT
APPELLANT TO A SUIT FOR ITS COLLECTION. 

HISTORICALLY THE JURISDICTION OF COURTS TO RENDER JUDGMENT IN
PERSONAM IS GROUNDED ON THEIR DE FACTO POWER OVER THE DEFENDANT'S
PERSON.  HENCE HIS PRESENCE WITHIN THE TERRITORIAL JURISDICTION OF A
COURT WAS PREREQUISITE TO ITS RENDITION OF A JUDGMENT PERSONALLY
BINDING HIM.  PENNOYER V. NEFF, 95 U.S. 714, 733.  BUT NOW THAT THE
CAPIAS AD RESPONDENDUM HAS GIVEN WAY TO PERSONAL SERVICE OF SUMMONS OR
OTHER FORM OF NOTICE, DUE PROCESS REQUIRES ONLY THAT IN ORDER TO
SUBJECT A DEFENDANT TO A JUDGMENT IN PERSONAM, IF HE BE NOT PRESENT
WITHIN THE TERRITORY OF THE FORUM, HE HAVE CERTAIN MINIMUM CONTACTS
WITH IT SUCH THAT THE MAINTENANCE OF THE SUIT DOES NOT OFFEND
"TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE."  MILLIKEN
V. MEYER, 311 U.S. 457, 463.  SEE HOLMES, J., IN MCDONALD V. MABEE, 243
U.S. 90, 91.  COMPARE HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313,
316, 319.  SEE BLACKMER V. UNITED STATES, 284 U.S. 421; HESS V.
PAWLOSKI, 274 U.S. 352; YOUNG V. MASCI, 289 U.S. 253. 

SINCE THE CORPORATE PERSONALITY IS A FICTION, ALTHOUGH A FICTION
INTENDED TO BE ACTED UPON AS THOUGH IT WERE A FACT, KLEIN V. BOARD OF
SUPERVISORS, 282 U.S. 19, 24, IT IS CLEAR THAT UNLIKE AN INDIVIDUAL ITS
"PRESENCE" WITHOUT, AS WELL AS WITHIN, THE STATE OF ITS ORIGIN CAN BE
MANIFESTED ONLY BY ACTIVITIES CARRIED ON IN ITS BEHALF BY THOSE WHO ARE
AUTHORIZED TO ACT FOR IT.  TO SAY THAT THE CORPORATION IS SO FAR
"PRESENT" THERE AS TO SATISFY DUE PROCESS REQUIREMENTS, FOR PURPOSES OF
TAXATION OR THE MAINTENANCE OF SUITS AGAINST IT IN THE COURTS OF THE
STATE, IS TO BEG THE QUESTION TO BE DECIDED.  FOR THE TERMS "PRESENT"
OR "PRESENCE" ARE USED MERELY TO SYMBOLIZE THOSE ACTIVITIES OF THE
CORPORATION'S AGENT WITHIN THE STATE WHICH COURTS WILL DEEM TO BE
SUFFICIENT TO SATISFY THE DEMANDS OF DUE PROCESS.  L. HAND, J., IN
HUTCHINSON V. CHASE & GILBERT, 45 F.2D 139, 141.  THOSE DEMANDS MAY BE
MET BY SUCH CONTACTS OF THE CORPORATION WITH THE STATE OF THE FORUM AS
MAKE IT REASONABLE, IN THE CONTEXT OF OUR FEDERAL SYSTEM OF GOVERNMENT,
TO REQUIRE THE CORPORATION TO DEFEND THE PARTICULAR SUIT WHICH IS
BROUGHT THERE.  AN "ESTIMATE OF THE INCONVENIENCES" WHICH WOULD RESULT
TO THE CORPORATION FROM A TRIAL AWAY FROM ITS "HOME" OR PRINCIPAL PLACE
OF BUSINESS IS RELEVANT IN THIS CONNECTION.  HUTCHINSON V. CHASE &
GILBERT, SUPRA, 141. 

"PRESENCE" IN THE STATE IN THIS SENSE HAS NEVER BEEN DOUBTED WHEN THE
ACTIVITIES OF THE CORPORATION THERE HAVE NOT ONLY BEEN CONTINUOUS AND
SYSTEMATIC, BUT ALSO GIVE RISE TO THE LIABILITIES SUED ON, EVEN THOUGH
NO CONSENT TO BE SUED OR AUTHORIZATION TO AN AGENT TO ACCEPT SERVICE OF
PROCESS HAS BEEN GIVEN.  ST. CLAIR V. COX, 106 U.S. 350, 355;
CONNECTICUT MUTUAL CO. V. SPRATLEY, 172 U.S. 602, 610-611; PENNSYLVANIA
LUMBERMEN'S INS. CO. V. MEYER, 197 U.S. 407, 414-415; COMMERCIAL MUTUAL
CO. V. DAVIS, 213 U.S. 245, 255-256; INTERNATIONAL HARVESTER CO. V.
KENTUCKY, SUPRA; CF. ST. LOUIS S.W.R. CO. V. ALEXANDER, 227 U.S. 218. 
CONVERSELY IT HAS BEEN GENERALLY RECOGNIZED THAT THE CASUAL PRESENCE OF
THE CORPORATE AGENT OR EVEN HIS CONDUCT OF SINGLE OR ISOLATED ITEMS OF
ACTIVITIES IN A STATE IN THE CORPORATION'S BEHALF ARE NOT ENOUGH TO
SUBJECT IT TO SUIT ON CAUSES OF ACTION UNCONNECTED WITH THE ACTIVITIES
THERE.  ST. CLAIR V. COX, SUPRA, 359, 360; OLD WAYNE LIFE ASSN. V.
MCDONOUGH, 204 U.S. 8, 21; FRENE V. LOUISVILLE CEMENT CO., SUPRA, 515,
AND CASES CITED.  TO REQUIRE THE CORPORATION IN SUCH CIRCUMSTANCES TO
DEFEND THE SUIT AWAY FROM ITS HOME OR OTHER JURISDICTION WHERE IT
CARRIES ON MORE SUBSTANTIAL ACTIVITIES HAS BEEN THOUGHT TO LAY TOO
GREAT AND UNREASONABLE A BURDEN ON THE CORPORATION TO COMPORT WITH DUE
PROCESS.    WHILE IT HAS BEEN HELD, IN CASES ON WHICH APPELLANT RELIES,
THAT CONTINUOUS ACTIVITY OF SOME SORTS WITHIN A STATE IS NOT ENOUGH TO
SUPPORT THE DEMAND THAT THE CORPORATION BE AMENABLE TO SUITS UNRELATED
TO THAT ACTIVITY, OLD WAYNE LIFE ASSN. V. MCDONOUGH, SUPRA; GREEN V.
CHICAGO, B. & Q.R. CO., SUPRA; SIMON V. SOUTHERN R. CO., 236 U.S. 115;
PEOPLE'S TOBACCO CO. V. AMERICAN TOBACCO CO., SUPRA; CF. DAVIS V.
FARMERS CO-OPERATIVE CO., 262 U.S. 312, 317, THERE HAVE BEEN INSTANCES
IN WHICH THE CONTINUOUS CORPORATE OPERATIONS WITHIN A STATE WERE
THOUGHT SO SUBSTANTIAL AND OF SUCH A NATURE AS TO JUSTIFY SUIT AGAINST
IT ON CAUSES OF ACTION ARISING FROM DEALINGS ENTIRELY DISTINCT FROM
THOSE ACTIVITIES.  SEE MISSOURI, K. & T.R. CO. V. REYNOLDS, 255 U.S.
565; TAUZA V. SUSQUEHANNA COAL CO., 220 N.Y. 259, 115 N.E. 915; CF. ST.
LOUIS S.W.R. CO. V. ALEXANDER, SUPRA. 

FINALLY, ALTHOUGH THE COMMISSION OF SOME SINGLE OR OCCASIONAL ACTS OF
THE CORPORATE AGENT IN A STATE SUFFICIENT TO IMPOSE AN OBLIGATION OR
LIABILITY ON THE CORPORATION HAS NOT BEEN THOUGHT TO CONFER UPON THE
STATE AUTHORITY TO ENFORCE IT, ROSENBERG BROS. & CO. V. CURTIS BROWN
CO., 260 U.S. 516, OTHER SUCH ACTS, BECAUSE OF THEIR NATURE AND QUALITY
AND THE CIRCUMSTANCES OF THEIR COMMISSION, MAY BE DEEMED SUFFICIENT TO
RENDER THE CORPORATION LIABLE TO SUIT.  CF. KANE V. NEW JERSEY, 242
U.S. 160; HESS V. PAWLOSKI, SUPRA; YOUNG V. MASCI, SUPRA.  TRUE, SOME
OF THE DECISIONS HOLDING THE CORPORATION AMENABLE TO SUIT HAVE BEEN
SUPPORTED BY RESORT TO THE LEGAL FICTION THAT IT HAS GIVEN ITS CONSENT
TO SERVICE AND SUIT, CONSENT BEING IMPLIED FROM ITS PRESENCE IN THE
STATE THROUGH THE ACTS OF ITS AUTHORIZED AGENTS.  LAFAYETTE INSURANCE
CO. V. FRENCH, 18 HOW.  404, 407; ST. CLAIR V. COX, SUPRA, 356;
COMMERCIAL MUTUAL CO. V. DAVIS, SUPRA, 254; WASHINGTON V. SUPERIOR
COURT, 289 U.S. 361, 364-365.  BUT MORE REALISTICALLY IT MAY BE SAID
THAT THOSE AUTHORIZED ACTS WERE OF SUCH A NATURE AS TO JUSTIFY THE
FICTION.  SMOLIK V. PHILADELPHIA & READING CO., 222 F. 148, 151. 
HENDERSON, THE POSITION OF FOREIGN CORPORATIONS IN AMERICAN
CONSTITUTIONAL LAW, 94-95. 

IT IS EVIDENT THAT THE CRITERIA BY WHICH WE MARK THE BOUNDARY LINE
BETWEEN THOSE ACTIVITIES WHICH JUSTIFY THE SUBJECTION OF A CORPORATION
TO SUIT, AND THOSE WHICH DO NOT, CANNOT BE SIMPLY MECHANICAL OR
QUANTITATIVE.  THE TEST IS NOT MERELY, AS HAS SOMETIMES BEEN SUGGESTED,
WHETHER THE ACTIVITY, WHICH THE CORPORATION HAS SEEN FIT TO PROCURE
THROUGH ITS AGENTS IN ANOTHER STATE, IS A LITTLE MORE OR A LITTLE
LESS.  ST. LOUIS S.W.R. CO. V. ALEXANDER, SUPRA, 228; INTERNATIONAL
HARVESTER CO. V. KENTUCKY, SUPRA, 587.  WHETHER DUE PROCESS IS
SATISFIED MUST DEPEND RATHER UPON THE QUALITY AND NATURE OF THE
ACTIVITY IN RELATION TO THE FAIR AND ORDERLY ADMINISTRATION OF THE LAWS
WHICH IT WAS THE PURPOSE OF THE DUE PROCESS CLAUSE TO INSURE.  THAT
CLAUSE DOES NOT CONTEMPLATE THAT A STATE MAY MAKE BINDING A JUDGMENT IN
PERSONAM AGAINST AN INDIVIDUAL OR CORPORATE DEFENDANT WITH WHICH THE
STATE HAS NO CONTACTS, TIES, OR RELATIONS.  CF. PENNOYER V. NEFF,
SUPRA; MINNESOTA COMMERCIAL ASSN. V. BENN, 261 U.S. 140. 

BUT TO THE EXTENT THAT A CORPORATION EXERCISES THE PRIVILEGE OF
CONDUCTING ACTIVITIES WITHIN A STATE, IT ENJOYS THE BENEFITS AND
PROTECTION OF THE LAWS OF THAT STATE.  THE EXERCISE OF THAT PRIVILEGE
MAY GIVE RISE TO OBLIGATIONS, AND, SO FAR AS THOSE OBLIGATIONS ARISE
OUT OF OR ARE CONNECTED WITH THE ACTIVITIES WITHIN THE STATE, A
PROCEDURE WHICH REQUIRES THE CORPORATION TO RESPOND TO A SUIT BROUGHT
TO ENFORCE THEM CAN, IN MOST INSTANCES, HARDLY BE SAID TO BE UNDUE. 
COMPARE INTERNATIONAL HARVESTER CO. V. KENTUCKY, SUPRA, WITH GREEN V.
CHICAGO, B. & Q.R. CO., SUPRA, AND PEOPLE'S TOBACCO CO. V. AMERICAN
TOBACCO CO., SUPRA.  COMPARE CONNECTICUT MUTUAL CO. V. SPRATLEY, SUPRA,
619, 620 AND COMMERCIAL MUTUAL CO. V. DAVIS, SUPRA, WITH OLD WAYNE LIFE
ASSN. V. MCDONOUGH, SUPRA.  SEE 29 COLUMBIA LAW REVIEW, 187-195. 

APPLYING THESE STANDARDS, THE ACTIVITIES CARRIED ON IN BEHALF OF
APPELLANT IN THE STATE OF WASHINGTON WERE NEITHER IRREGULAR NOR
CASUAL.  THEY WERE SYSTEMATIC AND CONTINUOUS THROUGHOUT THE YEARS IN
QUESTION.  THEY RESULTED IN A LARGE VOLUME OF INTERSTATE BUSINESS, IN
THE COURSE OF WHICH APPELLANT RECEIVED THE BENEFITS AND PROTECTION OF
THE LAWS OF THE STATE, INCLUDING THE RIGHT TO RESORT TO THE COURTS FOR
THE ENFORCEMENT OF ITS RIGHTS.  THE OBLIGATION WHICH IS HERE SUED UPON
AROSE OUT OF THOSE VERY ACTIVITIES.  IT IS EVIDENT THAT THESE
OPERATIONS ESTABLISH SUFFICIENT CONTACTS OR TIES WITH THE STATE OF THE
FORUM TO MAKE IT REASONABLE AND JUST, ACCORDING TO OUR TRADITIONAL
CONCEPTION OF FAIR PLAY AND SUBSTANTIAL JUSTICE, TO PERMIT THE STATE TO
ENFORCE THE OBLIGATIONS WHICH APPELLANT HAS INCURRED THERE.  HENCE WE
CANNOT SAY THAT THE MAINTENANCE OF THE PRESENT SUIT IN THE STATE OF
WASHINGTON INVOLVES AN UNREASONABLE OR UNDUE PROCEDURE. 

WE ARE LIKEWISE UNABLE TO CONCLUDE THAT THE SERVICE OF THE PROCESS
WITHIN THE STATE UPON AN AGENT WHOSE ACTIVITIES ESTABLISH APPELLANT'S
"PRESENCE" THERE WAS NOT SUFFICIENT NOTICE OF THE SUIT, OR THAT THE
SUIT WAS SO UNRELATED TO THOSE ACTIVITIES AS TO MAKE THE AGENT AN
INAPPROPRIATE VEHICLE FOR COMMUNICATING THE NOTICE.  IT IS ENOUGH THAT
APPELLANT HAS ESTABLISHED SUCH CONTACTS WITH THE STATE THAT THE
PARTICULAR FORM OF SUBSTITUTED SERVICE ADOPTED THERE GIVES REASONABLE
ASSURANCE THAT THE NOTICE WILL BE ACTUAL.  CONNECTICUT MUTUAL CO. V.
SPRATLEY, SUPRA, 618, 619; BOARD OF TRADE V. HAMMOND ELEVATOR CO., 198
U.S. 424, 437-438; COMMERCIAL MUTUAL CO. V. DAVIS, SUPRA, 254-255.  CF.
RIVERSIDE MILLS V. MENEFEE, 237 U.S. 189, 194, 195; SEE KNOWLES V.
GASLIGHT & COKE CO., 19 WALL.  58, 61; MCDONALD V. MABEE, SUPRA;
MILLIKEN V. MEYER, SUPRA.  NOR CAN WE SAY THAT THE MAILING OF THE
NOTICE OF SUIT TO APPELLANT BY REGISTERED MAIL AT ITS HOME OFFICE WAS
NOT REASONABLY CALCULATED TO APPRISE APPELLANT OF THE SUIT.  COMPARE
HESS V. PAWLOSKI, SUPRA, WITH MCDONALD V. MABEE, SUPRA, 92, AND WUCHTER
V. PIZZUTTI, 276 U.S. 13, 19, 24; CF. BECQUET V. MACCARTHY, 2 B. & AD.
951; MAUBOURQUET V. WYSE, 1 IR. REP. C.L. 471.  SEE WASHINGTON V.
SUPERIOR COURT, SUPRA, 365. 

ONLY A WORD NEED BE SAID OF APPELLANT'S LIABILITY FOR THE DEMANDED
CONTRIBUTIONS TO THE STATE UNEMPLOYMENT FUND.  THE SUPREME COURT OF
WASHINGTON, CONSTRUING AND APPLYING THE STATUTE, HAS HELD THAT IT
IMPOSES A TAX ON THE PRIVILEGE OF EMPLOYING APPELLANT'S SALESMEN WITHIN
THE STATE MEASURED BY A PERCENTAGE OF THE WAGES, HERE THE COMMISSIONS
PAYABLE TO THE SALESMEN.  THIS CONSTRUCTION WE ACCEPT FOR PURPOSES OF
DETERMINING THE CONSTITUTIONAL VALIDITY OF THE STATUTE.  THE RIGHT TO
EMPLOY LABOR HAS BEEN DEEMED AN APPROPRIATE SUBJECT OF TAXATION IN THIS
COUNTRY AND ENGLAND, BOTH BEFORE AND SINCE THE ADOPTION OF THE
CONSTITUTION.  STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 579, ET SEQ.
AND SUCH A TAX IMPOSED UPON THE EMPLOYER FOR UNEMPLOYMENT BENEFITS IS
WITHIN THE CONSTITUTIONAL POWER OF THE STATES.  CARMICHAEL V. SOUTHERN
COAL CO., 301 U.S. 495, 508, ET SEQ. 

APPELLANT HAVING RENDERED ITSELF AMENABLE TO SUIT UPON OBLIGATIONS
ARISING OUT OF THE ACTIVITIES OF ITS SALESMEN IN WASHINGTON, THE STATE
MAY MAINTAIN THE PRESENT SUIT IN PERSONAM TO COLLECT THE TAX LAID UPON
THE EXERCISE OF THE PRIVILEGE OF EMPLOYING APPELLANT'S SALESMEN WITHIN
THE STATE.  FOR WASHINGTON HAS MADE ONE OF THOSE ACTIVITIES, WHICH
TAKEN TOGETHER ESTABLISH APPELLANT'S "PRESENCE" THERE FOR PURPOSES OF
SUIT, THE TAXABLE EVENT BY WHICH THE STATE BRINGS APPELLANT WITHIN THE
REACH OF ITS TAXING POWER.  THE STATE THUS HAS CONSTITUTIONAL POWER TO
LAY THE TAX AND TO SUBJECT APPELLANT TO A SUIT TO RECOVER IT.  THE
ACTIVITIES WHICH ESTABLISH ITS "PRESENCE" SUBJECT IT ALIKE TO TAXATION
BY THE STATE AND TO SUIT TO RECOVER THE TAX.  EQUITABLE LIFE SOCIETY V.
PENNSYLVANIA, 238 U.S. 143, 146; CF. INTERNATIONAL HARVESTER CO. V.
DEPARTMENT OF TAXATION, 322 U.S. 435, 442, ET SEQ.; HOOPESTON CANNING
CO. V. CULLEN, SUPRA, 316-319; SEE GENERAL TRADING CO. V. TAX COMM'N,
322 U.S. 335.  AFFIRMED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK DELIVERED THE FOLLOWING OPINION. 

CONGRESS, PURSUANT TO ITS CONSTITUTIONAL POWER TO REGULATE COMMERCE,
HAS EXPRESSLY PROVIDED THAT A STATE SHALL NOT BE PROHIBITED FROM
LEVYING THE KIND OF UNEMPLOYMENT COMPENSATION TAX HERE CHALLENGED.  26
U.S.C. 1600.  WE HAVE TWICE DECIDED THAT THIS CONGRESSIONAL CONSENT IS
AN ADEQUATE ANSWER TO A CLAIM THAT IMPOSITION OF THE TAX VIOLATES THE
COMMERCE CLAUSE.  PERKINS V. PENNSYLVANIA, 314 U.S. 586, AFFIRMING 342
PA. 529; STANDARD DREDGING CORP. V. MURPHY, 319 U.S. 306, 308.  TWO
DETERMINATIONS BY THIS COURT OF AN ISSUE SO PALPABLY WITHOUT MERIT ARE
SUFFICIENT.  CONSEQUENTLY THAT PART OF THIS APPEAL WHICH AGAIN SEEKS TO
RAISE THE QUESTION SEEMS SO PATENTLY FRIVOLOUS AS TO MAKE THE CASE A
FIT CANDIDATE FOR DISMISSAL.  FAY V. CROZER, 217 U.S. 455.  NOR IS THE
FURTHER GROUND ADVANCED ON THIS APPEAL, THAT THE STATE OF WASHINGTON
HAS DENIED APPELLANT DUE PROCESS OF LAW, ANY LESS DEVOID OF SUBSTANCE. 
IT IS MY VIEW, THEREFORE, THAT WE SHOULD DISMISS THE APPEAL AS
UNSUBSTANTIAL,  FN1  SEABOARD AIR LINE R. CO. V. WATSON, 287 U.S. 86,
90, 92, AND DECLINE THE INVITATION TO FORMULATE BROAD RULES AS TO THE
MEANING OF DUE PROCESS, WHICH HERE WOULD AMOUNT TO DECIDING A
CONSTITUTIONAL QUESTION "IN ADVANCE OF THE NECESSITY FOR ITS
DECISION."  FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 461. 

CERTAINLY APPELLANT CANNOT IN THE LIGHT OF OUR PAST DECISIONS
MERITORIOUSLY CLAIM THAT NOTICE BY REGISTERED MAIL AND BY PERSONAL
SERVICE ON ITS SALES SOLICITORS IN WASHINGTON DID NOT MEET THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS.  AND THE DUE PROCESS CLAUSE IS
NOT BROUGHT IN ISSUE ANY MORE BY APPELLANT'S FURTHER CONCEPTUALISTIC
CONTENTION THAT WASHINGTON COULD NOT LEVY A TAX OR BRING SUIT AGAINST
THE CORPORATION BECAUSE IT DID NOT HONOR THAT STATE WITH ITS MYSTICAL
"PRESENCE."  FOR IT IS UNTHINKABLE THAT THE VAGUE DUE PROCESS CLAUSE
WAS EVER INTENDED TO PROHIBIT A STATE FROM REGULATING OR TAXING A
BUSINESS CARRIED ON WITHIN ITS BOUNDARIES SIMPLY BECAUSE THIS IS DONE
BY AGENTS OF A CORPORATION ORGANIZED AND HAVING ITS HEADQUARTERS
ELSEWHERE.  TO READ THIS INTO THE DUE PROCESS CLAUSE WOULD IN FACT
RESULT IN DEPRIVING A STATE'S CITIZENS OF DUE PROCESS BY TAKING FROM
THE STATE THE POWER TO PROTECT THEM IN THEIR BUSINESS DEALINGS WITHIN
ITS BOUNDARIES WITH REPRESENTATIVES OF A FOREIGN CORPORATION.  NOTHING
COULD BE MORE IRRATIONAL OR MORE DESIGNED TO DEFEAT THE FUNCTION OF OUR
FEDERATIVE SYSTEM OF GOVERNMENT.  CERTAINLY A STATE, AT THE VERY LEAST,
HAS POWER TO TAX AND SUE THOSE DEALING WITH ITS CITIZENS WITHIN ITS
BOUNDARIES, AS WE HAVE HELD BEFORE.  HOOPESTON CANNING CO. V. CULLEN,
318 U.S. 313.  WERE THE COURT TO FOLLOW THIS PRINCIPLE, IT WOULD
PROVIDE A WORKABLE STANDARD FOR CASES WHERE, AS HERE, NO OTHER
QUESTIONS ARE INVOLVED.  THE COURT HAS NOT CHOSEN TO DO SO, BUT INSTEAD
HAS ENGAGED IN AN UNNECESSARY DISCUSSION IN THE COURSE OF WHICH IT HAS
ANNOUNCED VAGUE CONSTITUTIONAL CRITERIA APPLIED FOR THE FIRST TIME TO
THE ISSUE BEFORE US.  IT HAS THUS INTRODUCED UNCERTAIN ELEMENTS
CONFUSING THE SIMPLE PATTERN AND TENDING TO CURTAIL THE EXERCISE OF
STATE POWERS TO AN EXTENT NOT JUSTIFIED BY THE CONSTITUTION. 

THE CRITERIA ADOPTED INSOFAR AS THEY CAN BE IDENTIFIED READ AS
FOLLOWS:  DUE PROCESS DOES PERMIT STATE COURTS TO "ENFORCE THE
OBLIGATIONS WHICH APPELLANT HAS INCURRED" IF IT BE FOUND "REASONABLE
AND JUST ACCORDING TO OUR TRADITIONAL CONCEPTION OF FAIR PLAY AND
SUBSTANTIAL JUSTICE."  AND THIS IN TURN MEANS THAT WE WILL "PERMIT" THE
STATE TO ACT IF UPON "AN 'ESTIMATE OF THE INCONVENIENCES' WHICH WOULD
RESULT TO THE CORPORATION FROM A TRIAL AWAY FROM ITS 'HOME' OR
PRINCIPAL PLACE OF BUSINESS," WE CONCLUDE THAT IT IS "REASONABLE" TO
SUBJECT IT TO SUIT IN A STATE WHERE IT IS DOING BUSINESS. 

IT IS TRUE THAT THIS COURT DID USE THE TERMS "FAIR PLAY" AND
"SUBSTANTIAL JUSTICE" IN EXPLAINING THE PHILOSOPHY UNDERLYING THE
HOLDING THAT IT COULD NOT BE "DUE PROCESS OF LAW" TO RENDER A PERSONAL
JUDGMENT AGAINST A DEFENDANT WITHOUT NOTICE AND AN OPPORTUNITY TO BE
HEARD.  MILLIKEN V. MEYER, 311 U.S. 457.  IN MCDONALD V. MABEE, 243
U.S. 90, 91, CITED IN THE MILLIKEN CASE, MR. JUSTICE HOLMES, SPEAKING
FOR THE COURT, WARNED AGAINST JUDICIAL CURTAILMENT OF THIS OPPORTUNITY
TO BE HEARD AND REFERRED TO SUCH A CURTAILMENT AS A DENIAL OF "FAIR
PLAY," WHICH EVEN THE COMMON LAW WOULD HAVE DEEMED "CONTRARY TO NATURAL
JUSTICE."  AND PREVIOUS CASES HAD INDICATED THAT THE ANCIENT RULE
AGAINST JUDGMENTS WITHOUT NOTICE HAD STEMMED FROM "NATURAL JUSTICE"
CONCEPTS.  THESE CASES, WHILE GIVING ADDITIONAL REASONS WHY NOTICE
UNDER PARTICULAR CIRCUMSTANCES IS INADEQUATE, DID NOT MEAN THEREBY THAT
ALL LEGISLATIVE ENACTMENTS WHICH THIS COURT MIGHT DEEM TO BE CONTRARY
TO NATURAL JUSTICE OUGHT TO BE HELD INVALID UNDER THE DUE PROCESS
CLAUSE.  NONE OF THE CASES PURPORT TO SUPPORT OR COULD SUPPORT A
HOLDING THAT A STATE CAN TAX AND SUE CORPORATIONS ONLY IF ITS ACTION
COMPORTS WITH THIS COURT'S NOTIONS OF "NATURAL JUSTICE."  I SHOULD HAVE
THOUGHT THE TENTH AMENDMENT SETTLED THAT. 

I BELIEVE THAT THE FEDERAL CONSTITUTION LEAVES TO EACH STATE, WITHOUT
ANY "IFS" OR "BUTS," A POWER TO TAX AND TO OPEN THE DOORS OF ITS COURTS
FOR ITS CITIZENS TO SUE CORPORATIONS WHOSE AGENTS DO BUSINESS IN THOSE
STATES.  BELIEVING THAT THE CONSTITUTION GAVE THE STATES THAT POWER, I
THINK IT A JUDICIAL DEPRIVATION TO CONDITION ITS EXERCISE UPON THIS
COURT'S NOTION OF "FAIR PLAY," HOWEVER APPEALING THAT TERM MAY BE.  NOR
CAN I STRETCH THE MEANING OF DUE PROCESS SO FAR AS TO AUTHORIZE THIS
COURT TO DEPRIVE A STATE OF THE RIGHT TO AFFORD JUDICIAL PROTECTION TO
ITS CITIZENS ON THE GROUND THAT IT WOULD BE MORE "CONVENIENT" FOR THE
CORPORATION TO BE SUED SOMEWHERE ELSE.    THERE IS A STRONG EMOTIONAL
APPEAL IN THE WORDS "FAIR PLAY," "JUSTICE," AND "REASONABLENESS."  BUT
THEY WERE NOT CHOSEN BY THOSE WHO WROTE THE ORIGINAL CONSTITUTION OR
THE FOURTEENTH AMENDMENT AS A MEASURING ROD FOR THIS COURT TO USE IN
INVALIDATING STATE OR FEDERAL LAWS PASSED BY ELECTED LEGISLATIVE
REPRESENTATIVES.  NO ONE, NOT EVEN THOSE WHO MOST FEARED A DEMOCRATIC
GOVERNMENT, EVER FORMALLY PROPOSED THAT COURTS SHOULD BE GIVEN POWER TO
INVALIDATE LEGISLATION UNDER ANY SUCH ELASTIC STANDARDS.  EXPRESS
PROHIBITIONS AGAINST CERTAIN TYPES OF LEGISLATION ARE FOUND IN THE
CONSTITUTION, AND UNDER THE LONG-SETTLED PRACTICE, COURTS INVALIDATE
LAWS FOUND TO CONFLICT WITH THEM.  THIS REQUIRES INTERPRETATION, AND
INTERPRETATION, IT IS TRUE, MAY RESULT IN EXTENSION OF THE
CONSTITUTION'S PURPOSE.  BUT THAT IS NO REASON FOR READING THE DUE
PROCESS CLAUSE SO AS TO RESTRICT A STATE'S POWER TO TAX AND SUE THOSE
WHOSE ACTIVITIES AFFECT PERSONS AND BUSINESSES WITHIN THE STATE,
PROVIDED PROPER SERVICE CAN BE HAD.  SUPERIMPOSING THE NATURAL JUSTICE
CONCEPT ON THE CONSTITUTION'S SPECIFIC PROHIBITIONS COULD OPERATE AS A
DRASTIC ABRIDGMENT OF DEMOCRATIC SAFEGUARDS THEY EMBODY, SUCH AS
FREEDOM OF SPEECH, PRESS AND RELIGION,  FN2  AND THE RIGHT TO COUNSEL. 
THIS HAS ALREADY HAPPENED.  BETTS V. BRADY, 316 U.S. 455.  COMPARE
FELDMAN V. UNITED STATES, 322 U.S. 487, 494-503.  FOR APPLICATION OF
THIS NATURAL LAW CONCEPT, WHETHER UNDER THE TERMS "REASONABLENESS,"
"JUSTICE," OR "FAIR PLAY," MAKES JUDGES THE SUPREME ARBITERS OF THE
COUNTRY'S LAWS AND PRACTICES.  POLK CO. V. GLOVER, 305 U.S. 5, 17-18;
FEDERAL POWER COMMISSION V. NATURAL GAS PIPELINE CO., 315 U.S. 575,
600, N. 4.  THIS RESULT, I BELIEVE, ALTERS THE FORM OF GOVERNMENT OUR
CONSTITUTION PROVIDES.  I CANNOT AGREE. 

TRUE, THE STATE'S POWER IS HERE UPHELD.  BUT THE RULE ANNOUNCED MEANS
THAT TOMORROW'S JUDGMENT MAY STRIKE DOWN A STATE OR FEDERAL ENACTMENT
ON THE GROUND THAT IT DOES NOT CONFORM TO THIS COURT'S IDEA OF NATURAL
JUSTICE.  I THEREFORE FIND MYSELF MOVED BY THE SAME FEARS THAT CAUSED
MR. JUSTICE HOLMES TO SAY IN 1930: 

"I HAVE NOT YET ADEQUATELY EXPRESSED THE MORE THAN ANXIETY THAT I
FEEL AT THE EVER INCREASING SCOPE GIVEN TO THE FOURTEENTH AMENDMENT IN
CUTTING DOWN WHAT I BELIEVE TO BE THE CONSTITUTIONAL RIGHTS OF THE
STATES.  AS THE DECISIONS NOW STAND, I SEE HARDLY ANY LIMIT BUT THE SKY
TO THE INVALIDATING OF THOSE RIGHTS IF THEY HAPPEN TO STRIKE A MAJORITY
OF THIS COURT AS FOR ANY REASON UNDESIRABLE."  BALDWIN V. MISSOURI, 281
U.S. 586, 595. 

FN1  THIS COURT HAS ON SEVERAL OCCASIONS POINTED OUT THE UNDESIRABLE
CONSEQUENCES OF A FAILURE TO DISMISS FRIVOLOUS APPEALS.  SALINGER V.
UNITED STATES, 272 U.S. 542, 544; UNITED SURETY CO. V. AMERICAN FRUIT
PRODUCT CO., 238 U.S. 140; DE BEARN V. SAFE DEPOSIT & TRUST CO., 233
U.S. 24, 33-34. 

FN2  THESE FIRST AMENDMENT LIBERTIES - FREEDOM OF SPEECH, PRESS AND
RELIGION - PROVIDE A GRAPHIC ILLUSTRATION OF THE POTENTIAL RESTRICTIVE
CAPACITY OF A RULE UNDER WHICH THEY ARE PROTECTED AT A PARTICULAR TIME
ONLY BECAUSE THE COURT, AS THEN CONSTITUTED, BELIEVES THEM TO BE A
REQUIREMENT OF FUNDAMENTAL JUSTICE.  CONSEQUENTLY, UNDER THE SAME RULE,
ANOTHER COURT, WITH A DIFFERENT BELIEF AS TO FUNDAMENTAL JUSTICE,
COULD, AT LEAST AS AGAINST STATE ACTION, COMPLETELY OR PARTIALLY
WITHDRAW CONSTITUTIONAL PROTECTION FROM THESE BASIC FREEDOMS, JUST AS
THOUGH THE FIRST AMENDMENT HAD NEVER BEEN WRITTEN. 
..END :
























ASHBACKER RADIO CO. V. F.C.C., 326 U.S. 327 


NO. 65.  ARGUED NOVEMBER 13, 1945.  - DECIDED DECEMBER 3, 1945.  -
REVERSED. 


1.  WHERE TWO APPLICATIONS PERTAINING TO BROADCASTING STATION LICENSES
UNDER THE FEDERAL COMMUNICATIONS ACT ARE MUTUALLY EXCLUSIVE, THE GRANT
OF ONE WITHOUT HEARINGS ON BOTH DEPRIVES THE LOSER OF THE OPPORTUNITY
FOR A HEARING TO WHICH HE IS ENTITLED UNDER SEC. 309(A) OF THE ACT,
EVEN THOUGH HIS APPLICATION IS SET FOR A HEARING AT A LATER DATE.  PP.
327, 329, 333. 

2.  IN SUCH A CASE, THE APPLICANT WHOSE APPLICATION WAS NOT ACTED
UPON IS PLACED IN THE SAME POSITION AS A NEWCOMER WHO SEEKS TO DISPLACE
AN ESTABLISHED BROADCASTER AND THUS IS PLACED UNDER A GREATER BURDEN
THAN IF A HEARING ON HIS APPLICATION HAD PRECEDED THE GRANT OF THE
OTHER APPLICATION.  P. 332. 

3.  WHILE HIS STATUTORY RIGHT TO A HEARING HAS BEEN PRESERVED IN
FORM, IT HAS BEEN SUBSTANTIALLY NULLIFIED AS A PRACTICAL MATTER BY THE
GRANT OF THE OTHER APPLICATION.  P. 334. 

ASHBACKER RADIO CORP. V. FEDERAL COMMUNICATIONS COMMISSION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 325 U.S. 846, TO REVIEW DISMISSAL OF AN APPEAL FROM AN
ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION DISMISSING A PETITION
FOR A HEARING, REHEARING AND OTHER RELIEF. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE PRIMARY QUESTION IN THIS CASE IS WHETHER AN APPLICANT FOR A
CONSTRUCTION PERMIT UNDER THE FEDERAL COMMUNICATIONS ACT (48 STAT.
1064, 47 U.S.C. SEC. 151) IS GRANTED THE HEARING TO WHICH HE IS
ENTITLED BY SEC. 309(A) OF THE ACT,  FN1  WHERE THE COMMISSION, HAVING
BEFORE IT TWO APPLICATIONS WHICH ARE MUTUALLY EXCLUSIVE, GRANTS ONE
WITHOUT A HEARING AND SETS THE OTHER FOR HEARING. 

IN MARCH 1944 THE FETZER BROADCASTING COMPANY FILED WITH THE
COMMISSION AN APPLICATION FOR AUTHORITY TO CONSTRUCT A NEW BROADCASTING
STATION AT GRAND RAPIDS, MICHIGAN, TO OPERATE ON 1230 KC WITH 250 WATTS
POWER, UNLIMITED TIME.  IN MAY 1944, BEFORE THE FETZER APPLICATION HAD
BEEN ACTED UPON, PETITIONER FILED AN APPLICATION FOR AUTHORITY TO
CHANGE THE OPERATING FREQUENCY OF ITS STATION WKBZ OF MUSKEGON,
MICHIGAN, FROM 1490 KC WITH 250 WATTS POWER, UNLIMITED TIME, TO 1230
KC. THE COMMISSION, AFTER STATING THAT THE SIMULTANEOUS OPERATION ON
1230 KC AT GRAND RAPIDS AND MUSKEGON "WOULD RESULT IN INTOLERABLE
INTERFERENCE TO BOTH APPLICANTS," DECLARED THAT THE TWO APPLICATIONS
WERE "ACTUALLY EXCLUSIVE."  THE COMMISSION, UPON AN EXAMINATION OF THE
FETZER APPLICATION AND SUPPORTING DATA, GRANTED IT IN JUNE 1944 WITHOUT
A HEARING.  ON THE SAME DAY THE COMMISSION DESIGNATED PETITIONER'S
APPLICATION FOR HEARING.  PETITIONER THEREUPON FILED A PETITION FOR
HEARING, REHEARING AND OTHER RELIEF DIRECTED AGAINST THE GRANT OF THE
FETZER APPLICATION.  THE COMMISSION DENIED THIS PETITION, STATING, 

"THE COMMISSION HAS NOT DENIED PETITIONER'S APPLICATION.  IT HAS
DESIGNATED THE APPLICATION FOR HEARING AS REQUIRED BY SECTION 309(A) OF
THE ACT.  AT THIS HEARING, PETITIONER WILL HAVE AMPLE OPPORTUNITY TO
SHOW THAT ITS OPERATION AS PROPOSED WILL BETTER SERVE THE PUBLIC
INTEREST THAN WILL THE GRANT OF THE FETZER APPLICATION AS AUTHORIZED
JUNE 27, 1944.  SUCH GRANT DOES NOT PRECLUDE THE COMMISSION, AT A LATER
DATE FROM TAKING ANY ACTION WHICH IT MAY FIND WILL SERVE THE PUBLIC
INTEREST.  IN RE:  BERKS BROADCASTING COMPANY (WEEU), READING,
PENNSYLVANIA, 8 FCC 427(1941); IN RE:  THE EVENING NEWS ASSOCIATION
(WWJ), DETROIT, MICHIGAN, 8 FCC 552(1941); IN RE:  MERCED BROADCASTING
COMPANY (KYOS), MERCED, CALIFORNIA, 9 FCC 118, 120(1942)."  PETITIONER
FILED A NOTICE OF APPEAL FROM THE GRANT OF THE FETZER CONSTRUCTION
PERMIT IN THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, ASSERTING
THAT IT WAS A "PERSON AGGRIEVED OR WHOSE INTERESTS ARE ADVERSELY
AFFECTED" BY THE ACTION OF THE COMMISSION WITHIN THE MEANING OF SEC.
402(B)(2) OF THE ACT.  FN2 THE COMMISSION FILED A MOTION TO DISMISS THE
APPEAL FOR WANT OF JURISDICTION ON THE PART OF THE COURT TO ENTERTAIN
IT.  THIS MOTION WAS GRANTED WITHOUT OPINION.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
IMPORTANCE OF THE QUESTION PRESENTED. 

OUR CHIEF PROBLEM IS TO RECONCILE TWO PROVISIONS OF SEC. 309(A) WHERE
THE COMMISSION HAS BEFORE IT MUTUALLY EXCLUSIVE APPLICATIONS.  THE
FIRST AUTHORIZES THE COMMISSION "UPON EXAMINATION" OF AN APPLICATION
FOR A STATION LICENSE TO GRANT IT IF THE COMMISSION DETERMINES THAT
"PUBLIC INTEREST, CONVENIENCE, OR NECESSITY WOULD BE SERVED" BY THE
GRANT.  FN3  THE SECOND PROVISION OF SEC. 309(A) SAYS THAT IF, UPON
EXAMINATION OF SUCH AN APPLICATION, THE COMMISSION DOES NOT REACH SUCH
A DECISION, "IT SHALL NOTIFY THE APPLICANT THEREOF, SHALL FIX AND GIVE
NOTICE OF A TIME AND PLACE FOR HEARING THEREON, AND SHALL AFFORD SUCH
APPLICANT AN OPPORTUNITY TO BE HEARD UNDER SUCH RULES AND REGULATIONS
AS IT MAY PRESCRIBE."  FN4  IT IS THUS PLAIN THAT SEC. 309(A) NOT ONLY
GIVES THE COMMISSION AUTHORITY TO GRANT LICENSES WITHOUT A HEARING, BUT
ALSO GIVES APPLICANTS A RIGHT TO A HEARING BEFORE THEIR APPLICATIONS
ARE DENIED.  WE DO NOT THINK IT IS ENOUGH TO SAY THAT THE POWER OF THE
COMMISSION TO ISSUE A LICENSE ON A FINDING OF PUBLIC INTEREST,
CONVENIENCE OR NECESSITY SUPPORTS ITS GRANT OF ONE OF TWO MUTUALLY
EXCLUSIVE APPLICATIONS WITHOUT A HEARING OF THE OTHER.  FOR IF THE
GRANT OF ONE EFFECTIVELY PRECLUDES THE OTHER, THE STATUTORY RIGHT TO A
HEARING WHICH CONGRESS HAS ACCORDED APPLICANTS BEFORE DENIAL OF THEIR
APPLICATIONS BECOMES AN EMPTY THING.  WE THINK THAT IS THE CASE HERE. 

THE COMMISSION IN ITS NOTICE OF HEARING ON PETITIONER'S APPLICATION
STATED THAT THE APPLICATION "WILL NOT BE GRANTED BY THE COMMISSION
UNLESS THE ISSUES LISTED ABOVE ARE DETERMINED IN FAVOR OF THE APPLICANT
ON THE BASIS OF A RECORD DULY AND PROPERLY MADE BY MEANS OF A FORMAL
HEARING."  ONE OF THE ISSUES LISTED WAS THE DETERMINATION OF "THE
EXTENT OF ANY INTERFERENCE WHICH WOULD RESULT FROM THE SIMULTANEOUS
OPERATION" OF PETITIONER'S PROPOSED STATION AND FETZER'S STATION. 
SINCE THE COMMISSION ITSELF STATED THAT SIMULTANEOUS OPERATION OF THE
TWO STATIONS WOULD RESULT IN "INTOLERABLE INTERFERENCE" TO BOTH, IT IS
APPARENT THAT PETITIONER CARRIES A BURDEN WHICH CANNOT BE MET.  TO
PLACE THAT BURDEN ON IT IS IN EFFECT TO MAKE ITS HEARING A REHEARING ON
THE GRANT OF THE COMPETITOR'S LICENSE RATHER THAN A HEARING ON THE
MERITS OF ITS OWN APPLICATION.  THAT MAY SATISFY THE STRICT LETTER OF
THE LAW BUT CERTAINLY NOT ITS SPIRIT OR INTENT.  FN5 

THE FETZER APPLICATION WAS NOT CONDITIONALLY GRANTED PENDING
CONSIDERATION OF PETITIONER'S APPLICATION.  INDEED A STAY OF IT PENDING
THE OUTCOME OF THIS LITIGATION WAS DENIED.  OF COURSE THE FETZER
LICENSE, LIKE ANY OTHER LICENSE GRANTED BY THE COMMISSION, WAS SUBJECT
TO CERTAIN CONDITIONS WHICH THE ACT IMPOSES AS A MATTER OF LAW.  WE
FULLY RECOGNIZE THAT THE COMMISSION, AS IT SAID, IS NOT PRECLUDED "AT A
LATER DATE FROM TAKING ANY ACTION WHICH IT MAY FIND WILL SERVE THE
PUBLIC INTEREST."  NO LICENSEE OBTAINS ANY VESTED INTEREST IN ANY
FREQUENCY.  FN6  THE COMMISSION FOR SPECIFIED REASONS MAY REVOKE ANY
STATION LICENSE PURSUANT TO THE PROCEDURE PRESCRIBED BY SEC. 312(A) AND
MAY SUSPEND THE LICENSE OF ANY OPERATOR ON THE GROUNDS AND IN THE
MANNER SPECIFIED BY SEC. 303(M).  IT MAY ALSO MODIFY A STATION LICENSE
IF IN ITS JUDGMENT "SUCH ACTION WILL PROMOTE THE PUBLIC INTEREST,
CONVENIENCE, AND NECESSITY, OR THE PROVISIONS OF THIS CHAPTER  ...
WILL BE MORE FULLY COMPLIED WITH."  SEC. 312(B).  AND LICENSES FOR
BROADCASTING STATIONS ARE LIMITED TO THREE YEARS, THE RENEWALS BEING
SUBJECT TO THE SAME CONSIDERATIONS AND PRACTICE WHICH AFFECT THE
GRANTING OF ORIGINAL APPLICATIONS.  SEC. 307(D).  BUT IN ALL THOSE
INSTANCES THE LICENSEE IS GIVEN AN OPPORTUNITY TO BE HEARD BEFORE FINAL
ACTION CAN BE TAKEN.  FN7  WHAT THE COMMISSION CAN DO TO FETZER IT CAN
DO TO ANY LICENSEE.  AS THE FETZER APPLICATION HAS BEEN GRANTED,
PETITIONER, THEREFORE, IS PRESENTLY IN THE SAME POSITION AS A NEWCOMER
WHO SEEKS TO DISPLACE AN ESTABLISHED BROADCASTER.  BY THE GRANT OF THE
FETZER APPLICATION PETITIONER HAS BEEN PLACED UNDER A GREATER BURDEN
THAN IF ITS HEARING HAD BEEN EARLIER.  LEGAL THEORY IS ONE THING.  BUT
THE PRACTICALITIES ARE DIFFERENT.  FOR WE ARE TOLD HOW DIFFICULT IT IS
FOR A NEWCOMER TO MAKE THE COMPARATIVE SHOWING NECESSARY TO DISPLACE AN
ESTABLISHED LICENSEE.  PEORIA BROADCASTING CO. AND ILLINOIS
BROADCASTING CO., 1 F.C.C. 167.  NO SUGGESTION IS MADE HERE AS IN
MATHESON RADIO CO., 8 F.C.C. 427 OR THE EVENING NEWS ASSOCIATION, 8
F.C.C. 552, THAT IT MAY BE POSSIBLE TO MAKE WORKABLE ADJUSTMENTS SO
THAT BOTH APPLICATIONS CAN BE GRANTED.  THE COMMISSION CONCEDES THAT
"THESE APPLICATIONS ARE ACTUALLY EXCLUSIVE."  THE APPLICATIONS ARE FOR
A FACILITY WHICH CAN BE GRANTED TO ONLY ONE.  SINCE THE FACILITY HAS
BEEN GRANTED TO FETZER, THE HEARING ACCORDED PETITIONER CONCERNS A
LICENSE FACILITY NO LONGER AVAILABLE FOR A GRANT UNLESS THE EARLIER
GRANT IS RECALLED.  A HEARING DESIGNED AS ONE FOR AN AVAILABLE
FREQUENCY BECOMES BY THE COMMISSION'S ACTION IN SUBSTANCE ONE FOR THE
REVOCATION OR MODIFICATION OF AN OUTSTANDING LICENSE.  SO IT WOULD SEEM
THAT PETITIONER WOULD CARRY AS A MATTER OF LAW THE SAME BURDEN
REGARDLESS OF THE PRECISE PROVISIONS OF THE NOTICE OF HEARING. 

IT IS SUGGESTED THAT THE COMMISSION, BY GRANTING THE FETZER
APPLICATION FIRST, CONCLUDED THAT THE PUBLIC INTEREST WOULD BE
FURTHERED BY MAKING FETZER'S SERVICE AVAILABLE AT THE EARLIEST POSSIBLE
DATE.  IF SO, THAT CONCLUSION IS ONLY AN INFERENCE FROM WHAT THE
COMMISSION DID.  THERE IS NO SUGGESTION, LET ALONE A FINDING, BY THE
COMMISSION THAT THE DEMANDS OF THE PUBLIC INTEREST WERE SO URGENT AS TO
PRECLUDE THE DELAY WHICH WOULD BE OCCASIONED BY A HEARING. 

THE PUBLIC, NOT SOME PRIVATE, INTEREST, CONVENIENCE, OR NECESSITY
GOVERNS THE ISSUANCE OF LICENSES UNDER THE ACT.  BUT WE ARE NOT
CONCERNED HERE WITH THE MERITS.  FN8  THIS INVOLVES ONLY A MATTER OF
PROCEDURE.  CONGRESS HAS GRANTED APPLICANTS A RIGHT TO A HEARING ON
THEIR APPLICATIONS FOR STATION LICENSES.  FN9 WHETHER THAT IS WISE
POLICY OR WHETHER THE PROCEDURE ADOPTED BY THE COMMISSION IN THIS CASE
IS PREFERABLE IS NOT FOR US TO DECIDE.  WE ONLY HOLD THAT WHERE TWO
BONA FIDE APPLICATIONS ARE MUTUALLY EXCLUSIVE THE GRANT OF ONE WITHOUT
A HEARING TO BOTH DEPRIVES THE LOSER OF THE OPPORTUNITY WHICH CONGRESS
CHOSE TO GIVE HIM. 

IN FEDERAL COMMUNICATIONS COMMISSION V. SANDERS RADIO STATION, 309
U.S. 470, 476-477, WE HELD THAT A RIVAL STATION WHICH WOULD SUFFER
ECONOMIC INJURY BY THE GRANT OF A LICENSE TO ANOTHER STATION HAD
STANDING TO APPEAL UNDER SEC. 402(B)(2) OF THE ACT.  IN FEDERAL
COMMUNICATIONS COMMISSION V. NATIONAL BROADCASTING CO., 319 U.S. 239,
WE REACHED THE SAME CONCLUSION WHERE AN APPLICATION HAD BEEN GRANTED
WHICH WOULD CREATE SUCH INTERFERENCE ON THE CHANNEL GIVEN AN EXISTING
LICENSEE AS IN EFFECT TO MODIFY THE EARLIER LICENSE.  PETITIONER IS AT
LEAST AS ADVERSELY AFFECTED BY THE ACTION OF THE COMMISSION IN THIS
CASE AS WERE THE PROTESTANTS IN THOSE CASES.  WHILE THE STATUTORY RIGHT
OF PETITIONER TO A HEARING ON ITS APPLICATION HAS IN FORM BEEN
PRESERVED, IT HAS AS A PRACTICAL MATTER BEEN SUBSTANTIALLY NULLIFIED BY
THE GRANT OF THE FETZER APPLICATION.  FN10 REVERSED. 

FN1  SEC. 319 RELATES TO APPLICATIONS FOR CONSTRUCTION PERMITS.  BUT
SINCE SUCH APPLICATIONS ARE IN SUBSTANCE APPLICATIONS FOR STATION
LICENSES (GOSS V. FEDERAL RADIO COMMISSION, 62 APP. D.C. 301, 67 F.2D
507, 508) THE COMMISSION IN SUCH CASES UNIFORMLY FOLLOWS THE PROCEDURE
PRESCRIBED IN SEC. 309(A) FOR STATION LICENSES. 

FN2  THE RELEVANT PROVISIONS OF SEC. 402(B) READ AS FOLLOWS: 

"AN APPEAL MAY BE TAKEN, IN THE MANNER HEREINAFTER PROVIDED, FROM
DECISIONS OF THE COMMISSION TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA IN ANY OF THE FOLLOWING CASES: 

     .         .         .         .         . 

"(2)  BY ANY OTHER PERSON AGGRIEVED OR WHOSE INTERESTS ARE ADVERSELY
AFFECTED BY ANY DECISION OF THE COMMISSION GRANTING OR REFUSING ANY
SUCH APPLICATION." 

FN3  SEC. 307(A) PROVIDES:  "THE COMMISSION, IF PUBLIC CONVENIENCE,
INTEREST, OR NECESSITY WILL BE SERVED THEREBY, SUBJECT TO THE
LIMITATIONS OF THIS CHAPTER, SHALL GRANT TO ANY APPLICANT THEREFOR A
STATION LICENSE PROVIDED FOR BY THIS CHAPTER." 

FN4  SEC. 309(A) READS AS FOLLOWS: 

"IF UPON EXAMINATION OF ANY APPLICATION FOR A STATION LICENSE OR FOR
THE RENEWAL OR MODIFICATION OF A STATION LICENSE THE COMMISSION SHALL
DETERMINE THAT PUBLIC INTEREST, CONVENIENCE, OR NECESSITY WOULD BE
SERVED BY THE GRANTING THEREOF, IT SHALL AUTHORIZE THE ISSUANCE,
RENEWAL, OR MODIFICATION THEREOF IN ACCORDANCE WITH SAID FINDING.  IN
THE EVENT THE COMMISSION UPON EXAMINATION OF ANY SUCH APPLICATION DOES
NOT REACH SUCH DECISION WITH RESPECT THERETO, IT SHALL NOTIFY THE
APPLICANT THEREOF, SHALL FIX AND GIVE NOTICE OF A TIME AND PLACE FOR
HEARING THEREON, AND SHALL AFFORD SUCH APPLICANT AN OPPORTUNITY TO BE
HEARD UNDER SUCH RULES AND REGULATIONS AS IT MAY PRESCRIBE." 

FN5  THE COMMISSION RECOGNIZES IN ITS REGULATIONS THE DESIRABILITY OF
HEARING SUCH RELATED MATTERS AT THE SAME TIME OR IN CONSOLIDATED
CASES.  BY SEC. 1.193, 47 CODE FED. REG. CUM. SUPP. IT IS PROVIDED: 

"IN FIXING DATES FOR HEARINGS THE COMMISSION WILL, SO FAR AS
PRACTICABLE, ENDEAVOR TO FIX THE SAME DATE FOR SEPARATE HEARINGS (A) ON
ALL RELATED MATTERS WHICH INVOLVE THE SAME APPLICANT, OR ARISE OUT OF
THE SAME COMPLAINT OR CAUSE; AND (B) FOR SEPARATE HEARINGS ON ALL
APPLICATIONS WHICH BY REASON OF THE PRIVILEGES, TERMS, OR CONDITIONS
REQUESTED PRESENT CONFLICTING CLAIMS OF THE SAME NATURE." 

AND BY SEC. 1.194, 47 CODE FED. REG. CUM. SUPP. IT IS PROVIDED: 

"THE COMMISSION, UPON MOTION, OR UPON ITS OWN MOTION, WILL, WHERE
SUCH ACTION WILL BEST CONDUCE TO THE PROPER DISPATCH OF BUSINESS AND TO
THE ENDS OF JUSTICE, CONSOLIDATE FOR HEARING (A) ANY CASES WHICH
INVOLVE THE SAME APPLICANT OR ARISE FROM THE SAME COMPLAINT OR CAUSE,
OR (B) ANY APPLICATIONS WHICH BY REASON OF THE PRIVILEGES, TERMS, OR
CONDITIONS REQUESTED PRESENT CONFLICTING CLAIMS OF THE SAME NATURE." 
FN6  SEE SECS. 301, 304, 307(D), 309(B)(1) OF THE ACT.  "THE POLICY OF
THE ACT IS CLEAR THAT NO PERSON IS TO HAVE ANYTHING IN THE NATURE OF A
PROPERTY RIGHT AS A RESULT OF THE GRANTING OF A LICENSE."  FEDERAL
COMMUNICATIONS COMMISSION V. SANDERS RADIO STATION, 309 U.S. 470, 475. 

FN7  FOR THE REGULATIONS OF THE COMMISSION GOVERNING THESE PROCEDURES
SEE 47 CODE FED. REG. CUM. SUPP. SEC. 1.401(REVOCATION), SEC. 1.359 AND
SEC. 1.402(MODIFICATION), SEC. 1.411 AND SEC. 1.412(SUSPENSION), SEC.
1.360(RENEWAL). 

FN8  SEE FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE BROADCASTING
CO., 309 U.S. 134, 145-146. 

FN9  APPARENTLY NO REGULATION EXISTS WHICH, FOR ORDERLY
ADMINISTRATION, REQUIRES AN APPLICATION FOR A FREQUENCY, PREVIOUSLY
APPLIED FOR, TO BE FILED WITHIN A CERTAIN DATE.  NOR IS THERE ANY
SUGGESTION THAT PETITIONER'S APPLICATION, WHICH WAS FILED SHORTLY AFTER
FETZER'S, WAS NOT FILED IN GOOD FAITH. 

FN10  A LICENSE TO OPERATE A STATION IS REQUIRED IN ADDITION TO A
PERMIT TO CONSTRUCT ONE.  AS RESPECTS AN OPERATING LICENSE, SEC. 319(B)
PROVIDES:  "UPON THE COMPLETION OF ANY STATION FOR THE CONSTRUCTION OR
CONTINUED CONSTRUCTION OF WHICH A PERMIT HAS BEEN GRANTED, AND UPON IT
BEING MADE TO APPEAR TO THE COMMISSION THAT ALL THE TERMS, CONDITIONS,
AND OBLIGATIONS SET FORTH IN THE APPLICATION AND PERMIT HAVE BEEN FULLY
MET, AND THAT NO CAUSE OR CIRCUMSTANCE ARISING OR FIRST COMING TO THE
KNOWLEDGE OF THE COMMISSION SINCE THE GRANTING OF THE PERMIT WOULD, IN
THE JUDGMENT OF THE COMMISSION, MAKE THE OPERATION OF SUCH STATION
AGAINST THE PUBLIC INTEREST, THE COMMISSION SHALL ISSUE A LICENSE TO
THE LAWFUL HOLDER OF SAID PERMIT FOR THE OPERATION OF SAID STATION. 
SAID LICENSE SHALL CONFORM GENERALLY TO THE TERMS OF SAID PERMIT."  FOR
THE REGULATIONS OF THE COMMISSION GOVERNING SUCH APPLICATIONS SEE 47
CODE FED. REG. CUM. SUPP. SEC. 1.357.  IT WAS CONCEDED ON ORAL ARGUMENT
THAT IN THAT PROCEEDING PETITIONER WOULD NOT BE ENTITLED TO INTERVENE
TO CHALLENGE THE PROPRIETY OF THE GRANT OF THE CONSTRUCTION PERMIT TO
FETZER WITHOUT A HEARING ON PETITIONER'S APPLICATION. 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE EXTENT TO WHICH ADMINISTRATIVE AGENCIES ARE TO BE ENTRUSTED WITH
THE ENFORCEMENT OF FEDERAL LEGISLATION IS FOR CONGRESS TO DETERMINE. 
INSOFAR AS THE ACTIONS OF THESE AGENCIES COME UNDER THE SCRUTINY OF
JUDICIAL REVIEW, IT IS THE BUSINESS OF THE COURTS TO RESPECT THE
DISTRIBUTION OF AUTHORITY THAT CONGRESS MAKES AS BETWEEN ADMINISTRATIVE
AND JUDICIAL TRIBUNALS.  OF COURSE COURTS MUST HOLD THE ADMINISTRATIVE
AGENCIES WITHIN THE CONFINES OF THEIR CONGRESSIONAL AUTHORITY.  BUT IN
DOING SO THEY SHOULD NOT EVEN UNWITTINGLY ASSUME THAT THE FAMILIAR IS
THE NECESSARY AND DEMAND OF THE ADMINISTRATIVE PROCESS OBSERVANCE OF
CONVENTIONAL JUDICIAL PROCEDURES WHEN CONGRESS HAS MADE NO SUCH
EXACTION.  SINCE THESE AGENCIES DEAL LARGELY WITH THE VINDICATION OF
PUBLIC INTEREST AND NOT THE ENFORCEMENT OF PRIVATE RIGHTS, THIS COURT
OUGHT NOT TO IMPLY HAMPERING RESTRICTIONS, NOT IMPOSED BY CONGRESS,
UPON THE EFFECTIVENESS OF THE ADMINISTRATIVE PROCESS.  ONE REASON FOR
THE EXPANSION OF ADMINISTRATIVE AGENCIES HAS BEEN THE RECOGNITION THAT
PROCEDURES APPROPRIATE FOR THE ADJUDICATION OF PRIVATE RIGHTS IN THE
COURTS MAY BE INAPPROPRIATE FOR THE KIND OF DETERMINATIONS WHICH
ADMINISTRATIVE AGENCIES ARE CALLED UPON TO MAKE. 

THE DISPOSITION OF THE PRESENT CASE SEEMS TO ME TO DISREGARD THESE
CONTROLLING CONSIDERATIONS, IF THE COURT NOW HOLDS, AS I UNDERSTAND IT
SO TO DO, THAT WHENEVER CONFLICTING APPLICATIONS ARE MADE FOR A RADIO
LICENSE THE COMMUNICATIONS COMMISSION MUST HEAR ALL THE APPLICATIONS
TOGETHER. 

IN THE REGULATION OF BROADCASTING, CONGRESS MOVED OUTSIDE THE
FRAMEWORK OF PROTECTED PROPERTY RIGHTS.  SEE COMMISSION V. SANDERS
RADIO STATION, 309 U.S. 470.  CONGRESS COULD HAVE RETAINED FOR ITSELF
THE GRANTING OR DENIAL OF THE USE OF THE AIR FOR BROADCASTING PURPOSES,
AND IT COULD HAVE GRANTED INDIVIDUAL LICENSES BY INDIVIDUAL ENACTMENTS
AS IN THE PAST IT GAVE RIVER AND HARBOR RIGHTS TO INDIVIDUALS.  INSTEAD
OF MAKING SUCH A CRUDE USE OF ITS CONSTITUTIONAL POWERS, CONGRESS, BY
THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1064, 47 U.S.C. SEC. 151,
FORMULATED AN ELABORATE LICENSING SCHEME AND ESTABLISHED THE FEDERAL
COMMUNICATIONS COMMISSION AS ITS AGENCY FOR ENFORCEMENT.  OUR TASK IS
TO GIVE EFFECT TO THIS LEGISLATION AND TO THE AUTHORITY WHICH CONGRESS
HAS SEEN FIT TO REPOSE IN THE COMMUNICATIONS COMMISSION. 

TO COME TO THE IMMEDIATE ISSUE, WHAT HAS THE COMMISSION DONE THAT IS
HERE CHALLENGED AND WHAT AUTHORITY FROM CONGRESS DOES IT AVOUCH FOR
WHAT IT HAS DONE? 

THE COMMISSION HAD BEFORE IT AT LEAST TWO APPLICATIONS FOR THE USE OF
THE SAME RADIO WAVE LENGTH IN THE WESTERN MICHIGAN AREA (MUSKEGON-GRAND
RAPIDS) - THAT OF THE PETITIONER AND FETZER'S.  THE PROBLEM BEFORE THE
COMMISSION WAS THE PROCEDURE APPROPRIATE IN ACTING UPON THESE TWO
APPLICATIONS.  CONGRESS HAS AUTHORIZED THE COMMISSION TO GRANT AN
APPLICATION WITHOUT RESORT TO A PUBLIC HEARING, 47 U.S.C. SECS. 309(A),
319(A), BUT A PUBLIC HEARING MAY BE DEMANDED WHEN THE COMMISSION DENIES
AN APPLICATION, 47 U.S.C. SEC. 309(A).  THE COURT IN EFFECT RULES THAT
IN THE CASE OF MULTIPLE APPLICATIONS THE COMMISSION CAN DECIDE ONLY
AFTER A PUBLIC HEARING ON ALL OF THEM.  THIS REQUIREMENT IS APPARENTLY
DERIVED FROM THE ASSUMPTION THAT IN THIS CASE THE COMMISSION, HAVING
RECEIVED TWO CONFLICTING APPLICATIONS, SHUT OFF, OUT OF HAND AND QUITE
ARBITRARILY, PETITIONER'S RIGHT TO HAVE ITS APPLICATION CONSIDERED, AS
OF COURSE THE COMMISSION IS IN DUTY BOUND TO CONSIDER IT, BY GRANTING
FETZER'S.  BUT THAT IS NOT WHAT HAPPENED.  THE COMMISSION IS CHARGED
WITH THE ASCERTAINMENT OF THE PUBLIC INTEREST.  WE MUST ASSUME THAT AN
AGENCY WHICH CONGRESS HAS TRUSTED DISCHARGES ITS TRUST.  ON THE RECORD
BEFORE US IT MUST BE ACCEPTED THAT THE COMMISSION, BEFORE HAVING TAKEN
ACTION, CAREFULLY TESTED, ACCORDING TO ITS ESTABLISHED PRACTICE, THE
CLAIMS BOTH OF FETZER AND OF PETITIONER BY THE TOUCHSTONE OF PUBLIC
INTEREST.  SEE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE
PROCEDURE, MONOGRAPH NO. 3, THE FEDERAL COMMUNICATIONS COMMISSION
(1940) 8 ET SEQ. ON THE BASIS OF SUCH INQUIRY, IT FOUND THAT THE FETZER
APPLICATION WAS CLEARLY IN THE PUBLIC INTEREST; IT FOUND THAT THE
ASHBACKER APPLICATION DID NOT MAKE A SUFFICIENT SHOWING EVEN TO STAY
THE COMMISSION'S HAND IN WITHHOLDING THE FETZER GRANT LONG ENOUGH TO
ENABLE ASHBACKER TO SUPPORT ITS APPLICATION MORE PERSUASIVELY.  ON THE
CONTRARY, IT THOUGHT THE PUBLIC INTEREST WOULD BE FURTHERED BY MAKING
FETZER'S SERVICE AVAILABLE AT THE EARLIEST POSSIBLE DATE.  THERE IS
NOTHING IN THE COMMUNICATIONS ACT THAT RESTRICTS THE COMMISSION IN
TRANSLATING ITS DUTY TO FURTHER THE PUBLIC INTEREST AS IT DID IN THE
PARTICULAR SITUATION BEFORE IT.  IN GRANTING FETZER'S APPLICATION AND
SETTING THE DENIAL OF THE PETITIONER'S DOWN FOR A HEARING AFTER FULLY
CANVASSING THE SITUATION, THE COMMISSION BROUGHT ITSELF WITHIN THE
EXPLICIT PROVISIONS OF THE COMMUNICATIONS ACT AND APPLIED THEM WITH
THAT FLEXIBILITY OF PROCEDURE WHICH CONGRESS HAS PUT INTO THE
COMMISSION'S OWN KEEPING.  FEDERAL COMMUNICATIONS COMMISSION V.
POTTSVILLE BROADCASTING CO., 309 U.S. 134, 138. 

BUT IT IS SUGGESTED THAT THE RIGHT TO A HEARING UPON DENIAL OF AN
APPLICATION IS NOT SATISFIED BY A HEARING BOUND TO BE BARREN.  IN ORDER
TO APPRECIATE THE FUNCTION OF A HEARING UNDER THE STATUTE IN A
SITUATION LIKE THAT BEFORE US, HOWEVER, IT IS VITAL TO REMEMBER THAT
THE TWO APPLICATIONS OF PETITIONER'S AND FETZER'S ARE VERY DIFFERENT
FROM AN ORDINARY LITIGATION BETWEEN FETZER AND PETITIONER IN A COURT OF
LAW.  EACH OF THEM WAS BEFORE THE COMMISSION AS THE REPRESENTATIVE OF
THE PUBLIC INTEREST, THE ASCERTAINMENT OF WHICH IS THE EXPERT FUNCTION
OF THE COMMUNICATIONS COMMISSION.  IT BEARS REPEATING THAT THE
APPLICATION OF BOTH PRESUMABLY RECEIVED CAREFUL SCRUTINY BY THE
COMMISSION BEFORE ACTION WAS TAKEN.  ADMINISTRATIVE PRACTICE INDICATES
THAT WHERE THERE ARE CONFLICTING APPLICATIONS, THE COMMISSION HAS
GRANTED SOME WITHOUT HEARING WHERE IT THOUGHT THE PUBLIC INTEREST BEST
SERVED BY THAT PROCEDURE, WHILE SETTING OTHERS FOR HEARING WHERE THE
PUBLIC INTEREST SO DEMANDED.  FN1  FETZER MADE A CLEAR SHOWING TO THE
AGENCY DESIGNATED FOR THE PURPOSE BY CONGRESS THAT THE PUBLIC INTEREST
WOULD BE SERVED BY THE GRANT OF ITS APPLICATION.  THE SAME AGENCY FOUND
NO BASIS IN PUBLIC INTEREST FOR ASHBACKER'S APPLICATION.  CERTAINLY IT
IS WHOLLY CONSONANT WITH THE SCHEME OF THE LEGISLATION AND THE POWERS
GIVEN TO THE COMMISSION THAT, UPON DENIAL OF THE ASHBACKER APPLICATION
AFTER A FINDING THAT IT WOULD NOT AND FETZER WOULD SERVE THE PUBLIC
INTEREST, THE BURDEN BE CAST ON ASHBACKER TO SHOW THAT IT WOULD SERVE
THE PUBLIC INTEREST BETTER THAN WOULD FETZER.  THE COMMISSION IS
AUTHORIZED BY STATUTE TO MODIFY A CONSTRUCTION PERMIT OR ANY LICENSE
GRANTED BY IT.  FN2  THIS GIVES CONSIDERABLE SCOPE FOR ADJUSTING THE
PRIOR GRANT TO FETZER SO AS TO GIVE TO THE PUBLIC THE BENEFITS OF
RECONCILING BOTH THE FETZER AND THE ASHBACKER APPLICATIONS, IF THE
HEARING SHOULD DEVELOP CONSIDERATIONS NOT DISCLOSED BY THE PRIOR
SCRUTINY OF THE COMMISSION.  NOT ONLY THAT, BUT THE COMMISSION, IN ITS
OPINION ON HEARING THE ASHBACKER COMPLAINT, CONSTRUED ITS OWN ACTION IN
GRANTING THE FETZER APPLICATION TO BE CONDITIONAL, SO AS TO HAVE ROOM
FOR ANY ACTION WHICH IT MAY FIND WILL SERVE THE PUBLIC INTEREST AFTER
THE HEARING ON THE ASHBACKER APPLICATION.  SUCH A PRACTICE OF
CONDITIONAL GRANT BY THE COMMISSION OUGHT NOT TO BE DEEMED OUTSIDE THE
RANGE OF THE PROCEDURAL DISCRETION ALLOWED TO IT BY CONGRESS.  FN3 

IN THIS CASE, HOWEVER, THE RESTRICTIONS OF THE HEARING GRANTED TO
ASHBACKER DO MAKE OF IT A MERE FORMALITY, FOR THE COMMISSION PUT UPON
ASHBACKER THE BURDEN OF ESTABLISHING THAT THE GRANT OF A LICENSE TO IT
WOULD NOT INTERFERE WITH THE SIMULTANEOUS OPERATIONS OF THE PROPOSED
FETZER STATION.  BUT SINCE THE COMMISSION HAD APPARENTLY ALREADY
CONCLUDED THAT THE SIMULTANEOUS OPERATION OF THE TWO STATIONS WOULD
RESULT IN "INTOLERABLE INTERFERENCE," ITS ORDER FOR A HEARING SEEMS TO
FORECLOSE THE OPPORTUNITY THAT SHOULD STILL BE OPEN TO ASHBACKER.  IT
IS ENTITLED TO SHOW THE SUPERIORITY OF ITS CLAIM OVER THAT OF FETZER,
EVEN THOUGH THE COMMISSION, ON THE BASIS OF ITS ADMINISTRATIVE INQUIRY,
WAS ENTITLED TO GRANT FETZER THE LICENSE IN THE QUALIFIED WAY IN WHICH
THE STATUTE AUTHORIZED, AND THE COMMISSION MADE, THE GRANT.  IN MY
VIEW, THEREFORE, THE PROPER DISPOSITION OF THE CASE IS TO RETURN IT TO
THE COMMISSION WITH DIRECTION THAT IT MODIFY ITS ORDER SO AS TO ASSURE
AN APPROPRIATE HEARING OF THE ASHBACKER APPLICATION.  IT MAY BE WISE
POLICY TO REQUIRE THAT THE COMMUNICATIONS COMMISSION SHOULD GIVE A
PUBLIC HEARING FOR ALL MULTIPLE APPLICATIONS BEFORE GRANTING ANY.  BUT
TO MY READING OF THE COMMUNICATIONS ACT, CONGRESS HAS NOT EXPRESSED
THIS POLICY. 

FN1                                  CONFLICTING APPLICATIONS

           TOTAL NO. OF              NO. GRANTED    NO. GRANTED 

FISCAL          APPLICATIONS                WITHOUT      AFTER 

YEAR             CONSIDERED     NUMBER      HEARING        HEARING 

1941  .........     159           49       14              2 

1942 ..........     142           52           1              2 

1943  .........      23      5           0              1 

1944  .........      39          14           2              1 

1945  ......... 114           69           5              8 

FN2  SEC. 312(B):  "ANY STATION LICENSE HEREAFTER GRANTED UNDER THE
PROVISIONS OF THIS ACT OR THE CONSTRUCTION PERMIT REQUIRED HEREBY AND
HEREAFTER ISSUED, MAY BE MODIFIED BY THE COMMISSION EITHER FOR A
LIMITED TIME OR FOR THE DURATION OF THE TERM THEREOF, IF IN THE
JUDGMENT OF THE COMMISSION SUCH ACTION WILL PROMOTE THE PUBLIC
INTEREST, CONVENIENCE, AND NECESSITY, OR THE PROVISIONS OF THIS ACT OR
OF ANY TREATY RATIFIED BY THE UNITED STATES WILL BE MORE FULLY COMPLIED
WITH  ..."  CF. 47 CODE FED. REG. SEC. 1.402. 

FN3  CF. BERKS BROADCASTING CO. (WEEU), READING, PENNSYLVANIA, 8
F.C.C. 427; THE EVENING NEWS ASSOCIATION (WWJ), DETROIT, MICHIGAN, 8
F.C.C. 552; MERCED BROADCASTING CO. (KYOS), MERCED, CALIFORNIA, 9
F.C.C. 118, 120. 

MR. JUSTICE RUTLEDGE JOINS IN THIS OPINION. 
..END :













SCOTT PAPER CO. V. MARCALUS CO., 326 U.S. 249 


NO. 54.  ARGUED OCTOBER 17, 1945.  - DECIDED NOVEMBER 13, 1945.  - 147
F.2D 608, AFFIRMED. 


1.  THE NATURE AND EXTENT OF THE LEGAL CONSEQUENCES OF THE EXPIRATION
OF A PATENT ARE FEDERAL QUESTIONS, THE ANSWERS TO WHICH ARE TO BE
DERIVED FROM THE PATENT LAWS AND THE POLICIES WHICH THEY ADOPT.  P.
255. 

2.  AN ASSIGNOR OF A PATENT IS NOT ESTOPPED BY VIRTUE OF HIS
ASSIGNMENT TO DEFEND A SUIT FOR INFRINGEMENT OF THE ASSIGNED PATENT ON
THE GROUND THAT THE ALLEGED INFRINGING DEVICE IS THAT OF A PRIOR-ART
EXPIRED PATENT.  WESTINGHOUSE CO. V. FORMICA CO., 266 U.S. 342,
DISTINGUISHED.  PP. 250, 257. 

3.  THE APPLICATION OF THE DOCTRINE OF ESTOPPEL SO AS TO FORECLOSE
THE ASSIGNOR OF A PATENT FROM ASSERTING THE RIGHT TO MAKE USE OF THE
PRIOR-ART INVENTION OF AN EXPIRED PATENT, WHICH ANTICIPATES THAT OF THE
ASSIGNED PATENT, IS INCONSISTENT WITH THE PATENT LAWS WHICH DEDICATE TO
PUBLIC USE THE INVENTION OF AN EXPIRED PATENT.  P. 257. 

4.  THE PATENT LAWS DO NOT CONTEMPLATE THAT ANYONE BY CONTRACT OR ANY
FORM OF PRIVATE ARRANGEMENT MAY WITHHOLD FROM THE PUBLIC THE USE OF THE
INVENTION OF AN EXPIRED PATENT, THE PUBLIC RIGHT TO THE ENJOYMENT OF
WHICH HAS BEEN SECURED BY THE GRANT OF A MONOPOLY IN THE PATENTED
INVENTION FOR A LIMITED TIME.  P. 256. 

SCOTT PAPER CO. V. MARCALUS MANUFACTURING CO., INC. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 325 U.S. 843, TO REVIEW A JUDGMENT WHICH REVERSED A
JUDGMENT FOR THE PLAINTIFF, 54 F.SUPP.  105, IN A SUIT FOR INFRINGEMENT
OF A PATENT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN THIS PATENT INFRINGEMENT SUIT THE QUESTION IS WHETHER THE ASSIGNOR
OF A PATENT IS ESTOPPED BY VIRTUE OF HIS ASSIGNMENT TO DEFEND A SUIT
FOR INFRINGEMENT OF THE ASSIGNED PATENT ON THE GROUND THAT THE ALLEGED
INFRINGING DEVICE IS THAT OF A PRIOR ART, EXPIRED PATENT. 

AUTOMATIC PAPER MACHINERY COMPANY, INC., PETITIONER'S ASSIGNOR,
ACQUIRED BY ASSIGNMENT, FROM RESPONDENT MARCALUS, PATENT NO. 1,843,429
OF FEBRUARY 2, 1932, ISSUED ON THE APPLICATION OF MARCALUS FOR "A
METHOD AND MACHINE FOR MOUNTING A CUTTING STRIP OF A HARD NON-METALLIC
SUBSTANCE ON AN EDGE OF A BOX BLANK."  THE PATENT DESCRIBES AND CLAIMS
A METHOD, AND A MACHINE FOR EMPLOYING IT, WHEREBY, IN SUBSTANTIALLY ONE
OPERATION, INDURATED PAPER IS DRAWN FROM A ROLL AND BROUGHT INTO
OVERLAPPING RELATIONSHIP WITH THE EDGE OF A BOX BLANK, WHEN A STRIP OF
THE PAPER IS AUTOMATICALLY CUT OFF AND GLUED TO THE BOX BLANK IN SUCH
POSITION THAT ITS LONGITUDINAL EDGE PROJECTS BEYOND THE EDGE OF THE BOX
BLANK.  THE BOX THUS EQUIPPED WITH THE CUTTING EDGE OF THE STRIP IS
USEFUL AS A DISPENSING CONTAINER FOR ROLLED WAX PAPER WHICH, AS DRAWN
FROM THE ROLL, MAY BE CUT IN ANY DESIRED LENGTHS BY DRAWING IT ACROSS
THE CUTTING EDGE AT AN ANGLE WITH THE PLANE OF THE CUTTER.  MARCALUS,
WHILE AN OFFICER AND EMPLOYEE OF PETITIONER, MADE THE PATENTED
INVENTION AND ASSIGNED HIS PATENT APPLICATION TO PETITIONER FOR A
VALUABLE CONSIDERATION.  THE PATENT ISSUED ON THE APPLICATION AS FILED,
WITHOUT AMENDMENT, AFTER WHICH MARCALUS SEVERED HIS CONNECTION WITH
PETITIONER AND ORGANIZED RESPONDENT COMPANY, WHICH HE CONTROLS, AND
WHICH, LIKE PETITIONER, IS ENGAGED IN PRODUCING AND SELLING BOX BLANKS
HAVING A CUTTING EDGE. 

IN THE PRESENT SUIT, BROUGHT BY PETITIONER FOR INFRINGEMENT OF THE
ASSIGNED PATENT, RESPONDENTS DEFENDED ON THE GROUND THAT THEIR ACCUSED
MACHINE IS A COPY OF THAT OF THE EXPIRED, PRIOR ART PATENT ISSUED TO
INMAN IN 1912.  THE DISTRICT COURT GAVE JUDGMENT FOR PETITIONER, 54
F.SUPP.  105, HOLDING THAT INASMUCH AS RESPONDENTS WERE ESTOPPED BY
MARCALUS' ASSIGNMENT OF THE PATENT TO SHOW ITS INVALIDITY, THEY COULD
NOT, BY RECOURSE TO THE PRIOR ART TO SHOW NONINFRINGEMENT, ACCOMPLISH
THE SAME RESULT BY INDIRECTION.  THE COURT OF APPEALS REVERSED, 147
F.2D 608, HOLDING THAT THE PRIOR ART MAY BE RESORTED TO BY THE ASSIGNOR
TO MEASURE THE EXTENT OF ANTICIPATION FOR THE PURPOSE OF LIMITING THE
CLAIMS OF THE ASSIGNED PATENT, AND THUS AVOID INFRINGEMENT.  BECAUSE OF
THE IDENTITY PATENTWISE OF THE INMAN PATENT WITH THE ASSIGNED PATENT
AND WITH THE ACCUSED DEVICE, THE COURT HELD THAT THE CLAIMS OF THE
ASSIGNED PATENT WERE LIMITED TO NAUGHT, AND HENCE THAT THERE COULD BE
NO INFRINGEMENT. 

TO SUSTAIN ITS RIGHT TO ENJOIN INFRINGEMENT BY THE ASSIGNOR OF A
PATENTED INVENTION ANTICIPATED BY A PRIOR ART PATENT, PETITIONER RELIES
ON THE DOCTRINE OF ESTOPPEL AS APPLIED TO THE ASSIGNOR OF A PATENT FOR
VALUE.  ITS BASIC PRINCIPLE IS SAID TO BE ONE OF GOOD FAITH, THAT ONE
WHO HAS SOLD HIS INVENTION MAY NOT, TO THE DETRIMENT OF THE PURCHASER,
DENY THE EXISTENCE OF THAT WHICH HE HAS SOLD.  SEE WESTINGHOUSE CO. V.
FORMICA CO., 288 F. 330, 333.  THE RULE, AS STATED BY THIS COURT IN
WESTINGHOUSE CO. V. FORMICA CO., 266 U.S. 342, 349, IS "THAT AN
ASSIGNOR OF A PATENT RIGHT IS ESTOPPED TO ATTACK THE UTILITY, NOVELTY
OR VALIDITY OF A PATENTED INVENTION WHICH HE HAS ASSIGNED OR GRANTED AS
AGAINST ANY ONE CLAIMING THE RIGHT UNDER HIS ASSIGNMENT OR GRANT.  AS
TO THE REST OF THE WORLD, THE PATENT MAY HAVE NO EFFICACY AND CREATE NO
RIGHT OF MONOPOLY; BUT THE ASSIGNOR CAN NOT BE HEARD TO QUESTION THE
RIGHT OF HIS ASSIGNEE TO EXCLUDE HIM FROM ITS USE.  CURRAN V. BURDSALL,
20 FED. 835; BALL & SOCKET FASTENER CO. V. BALL GLOVE FASTENING CO., 58
FED. 818; WOODWARD V. BOSTON LASTING MACHINE CO., 60 FED. 283, 284;
BABCOCK V. CLARKSON, 63 FED. 607; NOONAN V. CHESTER PARK ATHLETIC CO.,
99 FED. 90, 91." 

RESPONDENTS, DENYING THAT THE DOCTRINE OF ESTOPPEL CAN RIGHTLY BE
APPLIED TO PATENT ASSIGNMENTS, ALSO INSIST THAT THE PRESENT CASE IS NOT
WITHIN THE SCOPE OF THE DOCTRINE.  COMPARE BUCKINGHAM PRODUCTS CO. V.
MCALEER MFG. CO., 108 F.2D 192 WITH CASCO PRODUCTS CORP. V. SINKO TOOL
& MFG. CO., 116 F.2D 119.  BOTH PARTIES RELY ON THE DECISION OF THIS
COURT IN THE FORMICA CASE, SUPRA, WHICH, ALTHOUGH STATING THAT THE
ASSIGNOR CANNOT DENY THE NOVELTY AND VALIDITY OF THE ASSIGNED PATENTED
INVENTION, NEVERTHELESS HELD THAT THE CLAIMS OF A PATENT MAY BE
NARROWED BY REFERENCE TO THE PRIOR ART SO AS TO RESTRICT THEM TO SO
MUCH OF THE INVENTION DESCRIBED BY THE SPECIFICATIONS AS IS NOT
EXHIBITED BY THE PRIOR ART. KLEIN V. RUSSELL, 19 WALL.  433, 466, 467;
GARNEAU V. DOZIER, 102 U.S. 230; WOLLENSAK V. REIHER, 115 U.S. 87;
BEIDLER V. UNITED STATES, 253 U.S. 447; MACKAY CO. V. RADIO CORP., 306
U.S. 86, 94.  CF. HOCKING & CO. V. HOCKING, 4 R.P.C. 255, 434, 6 R.P.C.
69; CLARK V. ADIE, 2 APP. CAS. 423; CROSTHWAITE V. STEEL, 6 R.P.C.
190. 

THIS COURT IN THE FORMICA CASE, PASSING THE QUESTION, NOT PRESENT
HERE, WHETHER THE ESTOPPEL OF THE ASSIGNOR EXTENDS TO CLAIMS ADDED BY
THE ASSIGNEE TO THE APPLICATION IN THE PATENT OFFICE, HELD THAT THE
ESTOPPEL DID NOT, IN ANY EVENT, PRECLUDE THE ASSIGNOR CHARGED AS AN
INFRINGER FROM NARROWING OR QUALIFYING THEIR CONSTRUCTION BY REFERENCE
TO THE PRIOR ART, SAYING, 266 U.S. AT 351: "THE DISTINCTION MAY BE A
NICE ONE BUT SEEMS TO BE WORKABLE."  IT ACCORDINGLY, BY REFERENCE TO
THE PRIOR ART, INTERPRETED THE CLAIMS, BY NARROWING THEM TO A TWO-STEP
PROCESS, SHOWN BY THE SPECIFICATIONS, WHICH THE COURT FOUND TO BE THE
ASSIGNOR'S ADVANCE OVER THE PRIOR ART, BUT WHICH WAS NOT IN TERMS
EMBODIED IN THE CLAIMS.  THE COURT THUS SUSTAINED THE DEFENSE OF
NONINFRINGEMENT BY RESTRICTING THE CLAIMS BY REFERENCE TO THE PRIOR
ART, AND BY HOLDING IN EFFECT THAT THE INVENTION ASSIGNED WAS NOT AS
BROAD IN SCOPE AS THE CLAIMS WOULD OTHERWISE ON THEIR FACE DEFINE IT TO
BE. 

PETITIONER, POINTING TO THE LOGICAL EMBARRASSMENT IN APPLYING A
DOCTRINE WHICH FORBIDS THE ASSIGNOR TO DENY VALIDITY OF THE PATENTED
INVENTION FOR WANT OF NOVELTY, BUT NEVERTHELESS ALLOWS HIM TO NARROW
ITS SCOPE BY REFERENCE TO THE PRIOR ART IN ORDER TO SAVE HIS ACCUSED
DEVICE FROM INFRINGEMENT, INSISTS THAT THE COURT BELOW HAS RESORTED TO
THE PRIOR ART, NOT FOR THE PURPOSE OF NARROWING THE CLAIMS AND
DISTINGUISHING FROM THE PRIOR ART SOMETHING WHICH THE ASSIGNOR
INVENTED, BUT FOR THE PURPOSE OF DESTROYING THE CLAIMS BECAUSE
ANTICIPATED.  THIS IS SAID TO BE PRECISELY THE SAME IN PURPOSE AND
EFFECT AS TO DENY INVENTION FOR WANT OF NOVELTY.  IT IS URGED THAT THE
PERMISSION THUS GIVEN TO RESPONDENT ASSIGNOR TO SHOW WANT OF NOVELTY
WHICH HE IS ESTOPPED TO DENY, IS TO DISREGARD THE ESTOPPEL BY WHICH, BY
HYPOTHESIS, HE IS BOUND. 

RESPONDENTS, ON THE OTHER HAND, INSIST THAT A LITERAL APPLICATION OF
THE RULE OF THE FORMICA CASE LIMITS THE CLAIMS OF THE ASSIGNED PATENT
TO A STRUCTURE HAVING CERTAIN MINOR MECHANICAL ADDITIONS MADE BY
MARCALUS TO THE MACHINE OF THE INMAN PATENT WHICH RESPONDENTS COPIED BY
THEIR ACCUSED DEVICE.  THESE ADDITIONS, IT IS CONCEDED, MAY NOT INVOLVE
INVENTION, BUT IF SO, IT IS SAID, RESPONDENTS ARE ESTOPPED TO ASSERT
IT.  AND APPLYING THE RULE OF THE FORMICA CASE THEY URGE THAT THE
CLAIMS OF THE PATENT MAY NEVERTHELESS BE NARROWED TO A MACHINE
EMBODYING THE ADDITIONAL, MINOR FEATURES NOT FOUND IN THE INMAN
MACHINE, AND INFRINGEMENT MAY THUS BE AVOIDED. 

BUT IN THE CIRCUMSTANCES OF THIS CASE WE FIND IT UNNECESSARY TO
PURSUE THESE LOGICAL REFINEMENTS, OR TO DETERMINE WHETHER, AS
RESPONDENT ASKS, THE DOCTRINE OF ESTOPPEL BY PATENT ASSIGNMENT AS
STATED BY THE FORMICA CASE SHOULD BE REJECTED.  TO WHATEVER EXTENT THAT
DOCTRINE MAY BE DEEMED TO HAVE SURVIVED THE FORMICA DECISION OR TO BE
RESTRICTED BY IT, WE THINK THAT CASE IS NOT CONTROLLING HERE.  FOR
OTHER CONSIDERATIONS ARE DISPOSITIVE OF THIS CASE, IN WHICH, UNLIKE
FORMICA, THE ACCUSED MACHINE IS PRECISELY THAT OF AN EXPIRED PATENT. 
NEITHER IN THAT CASE NOR IN ANY OTHER, SO FAR AS WE ARE ADVISED, WAS
THE DOCTRINE OF ESTOPPEL APPLIED SO AS TO PENALIZE THE USE OF THE
INVENTION OF AN EXPIRED PATENT.  THAT WE THINK IS FORECLOSED BY THE
PATENT LAWS THEMSELVES. 

REVISED STATUTES, SECS. 4886, 4884 AS AMENDED, 35 U.S.C. SECS. 31,
40, PROVIDE FOR THE GRANT OF A PATENT FOR A TERM OF SEVENTEEN YEARS TO
ANY PERSON WHO HAS INVENTED A "NEW AND USEFUL ART, MACHINE,
MANUFACTURE, OR COMPOSITION OF MATTER."  THE GRANT IS CONDITIONED UPON
THE FILING OF AN APPLICATION IN THE PATENT OFFICE DESCRIBING THE
INVENTION AND THE MANNER OF MAKING AND USING IT. R.S. SEC. 4888 AS
AMENDED, 35 U.S.C. SEC. 33.  REVISED STATUTES, SECS. 4895, 4898, 35
U.S.C. SECS. 44, 47, AUTHORIZE THE ASSIGNMENT OF AN INVENTION WHILE THE
APPLICATION FOR A PATENT IS PENDING AND OF THE PATENT RIGHTS TO THE
INVENTION AFTER THE PATENT HAS ISSUED.  SECTION 24(7) OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 41(7), CONFERS ON DISTRICT COURTS OF THE UNITED
STATES JURISDICTION OF CASES ARISING UNDER THE PATENT LAWS, AND R.S.
SEC. 4921 AS AMENDED, 35 U.S.C. SEC. 70, GIVES THE DISTRICT COURTS
AUTHORITY TO ENTERTAIN SUITS TO RESTRAIN INFRINGEMENT AND FOR RECOVERY
OF ANY RESULTING DAMAGE FROM THE INFRINGEMENT OF ANY RIGHT SECURED BY
THE PATENT GRANT. 

THE ENACTMENT OF THESE PROVISIONS IS THE MODE BY WHICH CONGRESS HAS
CHOSEN TO CARRY INTO EFFECT THE POLICY SANCTIONED BY THE CONSTITUTION,
ARTICLE I, SEC. 8, CL. 8 "TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL
ARTS, BY SECURING FOR LIMITED TIMES TO  ...  INVENTORS THE EXCLUSIVE
RIGHT TO THEIR  ...  DISCOVERIES."  THE NATURE AND EXTENT OF THE LEGAL
CONSEQUENCES OF THE EXPIRATION OF A PATENT ARE FEDERAL QUESTIONS, THE
ANSWERS TO WHICH ARE TO BE DERIVED FROM THE PATENT LAWS AND THE
POLICIES WHICH THEY ADOPT.  CF. SOLA ELECTRIC CO. V. JEFFERSON CO., 317
U.S. 173, 176; STEELE V. L. & N.R. CO., 323 U.S. 192, 204, AND CASES
CITED.  BY THE PATENT LAWS CONGRESS HAS GIVEN TO THE INVENTOR
OPPORTUNITY TO SECURE THE MATERIAL REWARDS FOR HIS INVENTION FOR A
LIMITED TIME, ON CONDITION THAT HE MAKE FULL DISCLOSURE FOR THE BENEFIT
OF THE PUBLIC OF THE MANNER OF MAKING AND USING THE INVENTION, AND THAT
UPON THE EXPIRATION OF THE PATENT THE PUBLIC BE LEFT FREE TO USE THE
INVENTION.  SEE SPECIAL EQUIPMENT CO. V. COE, 324 U.S. 370, 378.  AS
HAS BEEN MANY TIMES POINTED OUT, THE MEANS ADOPTED BY CONGRESS OF
PROMOTING THE PROGRESS OF SCIENCE AND THE ARTS IS THE LIMITED GRANT OF
THE PATENT MONOPOLY IN RETURN FOR THE FULL DISCLOSURE OF THE PATENTED
INVENTION AND ITS DEDICATION TO THE PUBLIC ON THE EXPIRATION OF THE
PATENT.  GRANT V. RAYMOND, 6 PET. 218, 241-242; GILL V. WELLS, 22
WALL.  1; BAUER V. O'DONNELL, 229 U.S. 1; MOTION PICTURE CO. V.
UNIVERSAL FILM CO., 243 U.S. 502, 510-511, AND CASES CITED. 

THE AIM OF THE PATENT LAWS IS NOT ONLY THAT MEMBERS OF THE PUBLIC
SHALL BE FREE TO MANUFACTURE THE PRODUCT OR EMPLOY THE PROCESS
DISCLOSED BY THE EXPIRED PATENT, BUT ALSO THAT THE CONSUMING PUBLIC AT
LARGE SHALL RECEIVE THE BENEFITS OF THE UNRESTRICTED EXPLOITATION, BY
OTHERS, OF ITS DISCLOSURES.  KELLOGG CO. V. NATIONAL BISCUIT CO., 305
U.S. 111, 117-120.  IF A MANUFACTURER OR USER COULD RESTRICT HIMSELF,
BY EXPRESS CONTRACT, OR BY ANY ACTION WHICH WOULD GIVE RISE TO AN
"ESTOPPEL," FROM USING THE INVENTION OF AN EXPIRED PATENT, HE WOULD
DEPRIVE HIMSELF AND THE CONSUMING PUBLIC OF THE ADVANTAGE TO BE DERIVED
FROM HIS FREE USE OF THE DISCLOSURES.  THE PUBLIC HAS INVESTED IN SUCH
FREE USE BY THE GRANT OF A MONOPOLY TO THE PATENTEE FOR A LIMITED
TIME.  HENCE ANY ATTEMPTED RESERVATION OR CONTINUATION IN THE PATENTEE
OR THOSE CLAIMING UNDER HIM OF THE PATENT MONOPOLY, AFTER THE PATENT
EXPIRES, WHATEVER THE LEGAL DEVICE EMPLOYED, RUNS COUNTER TO THE POLICY
AND PURPOSE OF THE PATENT LAWS.  AND FOR THE SAME REASON A STRANGER,
SUCH AS RESPONDENT MARCALUS, CANNOT, BY SECURING AND ASSIGNING A PATENT
ON THE INVENTION OF THE EXPIRED INMAN PATENT, CONFER ON PETITIONER ANY
RIGHT TO DEPRIVE THE PUBLIC OF THE BENEFITS OF THE FREE USE OF THE
INVENTION FOR WHICH THE PUBLIC HAS PAID BY THE GRANT OF A LIMITED
MONOPOLY. 

BY THE FORCE OF THE PATENT LAWS NOT ONLY IS THE INVENTION OF A PATENT
DEDICATED TO THE PUBLIC UPON ITS EXPIRATION, BUT THE PUBLIC THEREBY
BECOMES ENTITLED TO SHARE IN THE GOOD WILL WHICH THE PATENTEE HAS BUILT
UP IN THE PATENTED ARTICLE OR PRODUCT THROUGH THE ENJOYMENT OF HIS
PATENT MONOPOLY.  HENCE WE HAVE HELD THAT THE PATENTEE MAY NOT EXCLUDE
THE PUBLIC FROM PARTICIPATING IN THAT GOOD WILL OR SECURE, TO ANY
EXTENT, A CONTINUATION OF HIS MONOPOLY BY RESORTING TO THE TRADEMARK
LAW AND REGISTERING AS A TRADEMARK ANY PARTICULAR DESCRIPTIVE MATTER
APPEARING IN THE SPECIFICATIONS, DRAWINGS OR CLAIMS OF THE EXPIRED
PATENT, WHETHER OR NOT SUCH MATTER DESCRIBES ESSENTIAL ELEMENTS OF THE
INVENTION OR CLAIMS.  KELLOGG CO. V. NATIONAL BISCUIT CO., SUPRA, 117
120; SINGER MANUFACTURING CO. V. JUNE MANUFACTURING CO., 163 U.S. 169,
185.    IT IS THUS APPARENT THAT THE PATENT LAWS PRECLUDE THE PATENTEE
OF AN EXPIRED PATENT AND ALL OTHERS INCLUDING PETITIONER FROM
RECAPTURING ANY PART OF THE FORMER PATENT MONOPOLY; FOR THOSE LAWS
DEDICATE TO ALL THE PUBLIC THE IDEAS AND INVENTIONS EMBODIED IN AN
EXPIRED PATENT.  THEY DO NOT CONTEMPLATE THAT ANYONE BY CONTRACT OR ANY
FORM OF PRIVATE ARRANGEMENT MAY WITHHOLD FROM THE PUBLIC THE USE OF AN
INVENTION FOR WHICH THE PUBLIC HAS PAID BY ITS GRANT OF A MONOPOLY AND
WHICH HAS BEEN APPROPRIATED TO THE USE OF ALL.  THE RIGHTS IN THE
INVENTION ARE THEN NO LONGER SUBJECT TO PRIVATE BARTER, SALE, OR
WAIVER.  CF. PHILLIPS CO. V. GRAND TRUNK R. CO., 236 U.S. 662; MIDSTATE
HORTICULTURAL CO. V. PENNSYLVANIA R. CO., 320 U.S. 356, 361; BROOKLYN
BANK V. O'NEIL, 324 U.S. 697, 704.  IT FOLLOWS THAT THE PATENT LAWS
PRECLUDE THE PETITIONER ASSIGNEE FROM INVOKING THE DOCTRINE OF
ESTOPPEL, AS A MEANS OF CONTINUING AS AGAINST RESPONDENT, HIS ASSIGNOR,
THE BENEFIT OF AN EXPIRED MONOPOLY, AND THEY PRECLUDE THE ASSIGNOR FROM
ESTOPPING HIMSELF FROM ENJOYING RIGHTS WHICH IT IS THE POLICY OF THE
PATENT LAWS TO FREE FROM ALL RESTRICTIONS.  FOR NO MORE THAN PRIVATE
CONTRACT CAN ESTOPPEL BE THE MEANS OF SUCCESSFULLY AVOIDING THE
REQUIREMENTS OF LEGISLATION ENACTED FOR THE PROTECTION OF A PUBLIC
INTEREST.  COMPARE PITTSBURGH, C., C. & ST. L.R. CO. V. FINK, 250 U.S.
577, 583 WITH LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY, 219 U.S. 467,
476-477; NEW YORK CENTRAL & H.R.R. CO. V. GRAY, 239 U.S. 583, 586-587;
NORMAN V. B. & O.R. CO., 294 U.S. 240, 304-305, 309-310, AND CASES
CITED.  THE INTEREST IN PRIVATE GOOD FAITH IS NOT A UNIVERSAL
TOUCHSTONE WHICH CAN BE MADE THE MEANS OF SACRIFICING A PUBLIC INTEREST
SECURED BY AN APPROPRIATE EXERCISE OF THE LEGISLATIVE POWER.  THE
PATENT LAWS PRECLUDE US FROM SAYING THAT THE PATENT ASSIGNMENT, WHICH
THEY AUTHORIZE, OPERATES TO ESTOP THE ASSIGNOR FROM ASSERTING THAT
WHICH THE PATENT LAWS PRESCRIBE, NAMELY, THAT THE INVENTION OF AN
EXPIRED PATENT IS DEDICATED TO THE PUBLIC, OF WHICH THE ASSIGNOR IS A
MEMBER. 

THE JUDGMENT IS AFFIRMED FOR THE REASON THAT WE FIND THAT THE
APPLICATION OF THE DOCTRINE OF ESTOPPEL SO AS TO FORECLOSE THE ASSIGNOR
OF A PATENT FROM ASSERTING THE RIGHT TO MAKE USE OF THE PRIOR ART
INVENTION OF AN EXPIRED PATENT, WHICH ANTICIPATES THAT OF THE ASSIGNED
PATENT, IS INCONSISTENT WITH THE PATENT LAWS WHICH DEDICATE TO PUBLIC
USE THE INVENTION OF AN EXPIRED PATENT.  THE ASSIGNOR HAS A COMPLETE
DEFENSE TO AN ACTION FOR INFRINGEMENT WHERE THE ALLEGED INFRINGING
DEVICE IS THAT OF AN EXPIRED PATENT. 

WE HAVE NO OCCASION TO CONSIDER THE QUESTION DISCUSSED IN BRIEFS AND
ARGUMENTS OF COUNSEL, WHETHER THE ESTOPPEL BY PATENT ASSIGNMENT
VIOLATES EITHER THE TERMS OR POLICY OF THE LAWS AGAINST RESTRAINTS OF
TRADE AND COMPETITION* . 

*THIS QUESTION WAS NOT RAISED OR ARGUED IN WESTINGHOUSE CO. V.
FORMICA CO., SUPRA, NOR, SO FAR AS APPEARS, IN ANY OF THE CASES CITED
IN THAT OPINION OR THE ENGLISH CASES WHICH PRECEDED IT. 

BY SEC. 515 OF THE RESTATEMENT OF CONTRACTS, A RESTRAINT OF TRADE IS
UNREASONABLE AND HENCE UNLAWFUL IF IT "IS BASED ON A PROMISE TO REFRAIN
FROM COMPETITION AND IS NOT ANCILLARY EITHER TO A CONTRACT FOR THE
TRANSFER OF GOOD WILL OR OTHER SUBJECT OF PROPERTY  ..."  SEE GENERALLY
AS TO THE VALIDITY OF CONTRACTS NOT TO COMPETE 76 PA. L. REV. 244, 257
FF.; HANDLER, CASES AND MATERIALS ON TRADE REGULATION, 102-150. 
AFFIRMED. 

MR. JUSTICE REED CONSIDERS THAT THE DOMINANT RULE OF WESTINGHOUSE CO.
V. FORMICA CO., 266 U.S. 342, 349, IS "THAT AN ASSIGNOR OF A PATENT
RIGHT IS ESTOPPED TO ATTACK THE UTILITY, NOVELTY OR VALIDITY OF A
PATENTED INVENTION WHICH HE HAS ASSIGNED OR GRANTED AS AGAINST ANY ONE
CLAIMING THE RIGHT UNDER HIS ASSIGNMENT OR GRANT."  THE FACT THAT THE
PRIOR ART IS EVIDENCED BY AN EXPIRED PATENT DOES NOT SEEM SIGNIFICANT
TO HIM.  CONSEQUENTLY HE WOULD REVERSE. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

WHEN BY A FAIR AND FREE BARGAIN A MAN SELLS SOMETHING TO ANOTHER, IT
HARDLY LIES IN HIS MOUTH TO SAY, "I HAVE SOLD YOU NOTHING."  IT
CERTAINLY OFFENDS THE RUDIMENTARY SENSE OF JUSTICE FOR COURTS TO
SUPPORT ONE WHO PURPORTS TO SELL SOMETHING TO ANOTHER IN SAYING "WHAT I
HAVE SOLD YOU IS WORTHLESS," EVEN THOUGH HE DID NOT EXPRESSLY PROMISE
THAT WHAT HE SOLD HAD WORTH.  THE OBVIOUS IMPLICATIONS OF FAIR DEALING
IN COMMERCIAL TRANSACTIONS HAVE BEEN PART OF OUR LAW FOR AT LEAST A
HUNDRED YEARS.  AND IT WOULD BE SURPRISING INDEED IF THE LAW MADE A
DIFFERENCE WHETHER WHAT WAS PURPORTED TO BE SOLD WAS A DIAMOND, OR A
SECRET PROCESS FOR MANUFACTURING A COMMODITY, OR A PATENTED MACHINE. 

IT HAS NEVER BEEN QUESTIONED THAT COURTS WILL NOT MAKE THEMSELVES
INSTRUMENTS OF UNFAIR DEALING WHEN WHAT IS SOLD IS A PATENT.  IN
TECHNICAL LANGUAGE, THE SALE OF A PATENT MEANS ITS ASSIGNMENT. 
CONGRESS MIGHT HAVE CONFINED THE RIGHT TO EXPLOIT A PATENT SOLELY TO
THE PATENTEE.  CONGRESS HAS ACTED ON THE CONTRARY POLICY.  EVER SINCE
THE ACT OF FEBRUARY 21, 1793, 1 STAT. 318, CONGRESS HAS SANCTIONED THE
RIGHT TO ASSIGN PATENTS, REQUIRING ONLY FULFILLMENT OF CERTAIN
FORMALITIES.  TO BE SURE, CONGRESS HAS NOT SAID IN SO MANY WORDS THAT
THE SELLER OF A PATENT - AN ASSIGNOR - IS SUBJECT LIKE OTHER SELLERS TO
THE OBLIGATIONS OF FAIR DEALING.  IT HAS NOT SAID THAT HE CANNOT TURN
AROUND ON THE MORROW AND RENDER FUTILE THAT WHICH HE HAS SOLD BY
CLAIMING THAT WHAT HE PURPORTED TO SELL AS A PATENT WAS IN TRUTH NOT A
PATENT, AND, SINCE IT WAS NOT A PATENT, HE, THE SELLER, COULD NOT BE
CHARGED WITH IMPAIRING THE WORTH OF THE PATENT BY PRACTISING IT
HIMSELF.  UNTIL THIS DAY SUCH A SOPHISTICAL ARGUMENT TO ACCOMPLISH
OVERREACHING IN A BUSINESS TRANSACTION HAS UNIFORMLY BEEN REJECTED BY
THE COURTS, AND IT HAS BEEN REJECTED BY THIS COURT ON BASIC
CONSIDERATIONS OF "FAIR DEALING."  WESTINGHOUSE CO. V. FORMICA CO., 266
U.S. 342, 350.  IT IS RELEVANT TO RECALL THAT INSISTENCE ON THIS
DOCTRINE WAS UNANIMOUSLY MADE IN THE FORMICA CASE BY A COURT WHICH
INCLUDED MR. JUSTICE BRANDEIS, THAN WHOM NO ONE WAS MORE ZEALOUSLY
ALERT AGAINST THE SLIGHTEST INROADS UPON THE PUBLIC INTEREST THROUGH
UNDUE EXTENSION OF PATENT RIGHTS.  IT IS IMPORTANT TO EMPHASIZE THAT
THE PRINCIPLE OF GOOD FAITH WHICH THE CONSCIENCE OF EQUITY HAS THUS
ENFORCED BINDS ONLY AN ASSIGNOR WHO SEEKS TO USE THE COURTS TO DEFEAT
THAT WHICH HE PURPORTED TO SELL.  IT MERELY RESTRICTS ONE PERSON, THE
ASSIGNOR, FROM DENYING THAT HE SOLD A PATENT WHEN HE PURPORTED TO SELL
IT, LEAVING THE WHOLE REST OF THE WORLD FREE TO ASSAIL THE VALIDITY OR
NOVELTY OF THE PATENT. 

TO BE SURE, THE PATENT LEGISLATION DOES NOT IN SO MANY WORDS
FORMULATE THIS DOCTRINE OF FAIR DEALING BETWEEN ASSIGNOR AND ASSIGNEE. 
BUT PATENT LEGISLATION, LIKE OTHER LEGISLATION AND INDEED LIKE ALL
COMPOSITIONS, IMPLIEDLY CONTAINS PRESUPPOSITIONS WHICH NEED NOT BE
SPELLED OUT PRECISELY BECAUSE THEY ARE TAKEN FOR GRANTED.  THE FAIR
INTENDMENT OF A PATENT ASSIGNMENT AUTHORIZED BY CONGRESS IS AS MUCH TO
BE RESPECTED AS THE SAME MEANING EXPLICITLY STATED.  PATENT LEGISLATION
IS PART OF THE GREAT BODY OF LAW.  FAMILIAR EQUITABLE DOCTRINES,
APPLICABLE TO THE WHOLE DOMAIN OF LAW AND UNQUESTIONED AS PART OF THE
JUDICIAL PROCESS, ARE INFUSED INTO SPECIFIC ENACTMENTS DEALING ONLY
WITH THE SPECIFIC PROBLEMS THAT CALL FOR SPECIFIC FORMULATION.  IF
WARRANT IN THE LANGUAGE OF CONGRESS HAD TO BE FOUND FOR ALL
ADJUDICATIONS MADE BY THIS COURT IN LITIGATION INVOLVING PATENTS, NO
INCONSIDERABLE VOLUME OF DECISIONS DRAWN FROM GENERAL EQUITABLE
PRINCIPLES OUGHT NEVER TO HAVE BEEN MADE AND SHOULD BE UNDONE. 

THE PRINCIPLE OF FAIR DEALING AS BETWEEN ASSIGNOR AND ASSIGNEE OF A
PATENT WHEREBY THE ASSIGNOR WILL NOT BE ALLOWED TO SAY THAT WHAT HE
SOLD AS A PATENT WAS NOT A PATENT HAS BEEN PART OF THE FABRIC OF OUR
LAW THROUGHOUT THE LIFE OF THIS NATION.  IT HAS BEEN UNDEVIATINGLY
ENFORCED BY ENGLISH-SPEAKING COURTS IN THIS COUNTRY, IN ENGLAND, IN
CANADA, AND AUSTRALIA.  SEE, E.G., OLDHAM V. LANGMEAD, CITED IN HAYNE
V. MALTBY, 3 T.R. 438, 439, 441(1789); INDIANA MFG. CO. V. SMITH, 10
CAN.  EXCH.  17(1905); SHEPHERD V. PATENT COMPOSITION PAVEMENT CO., 5
AUST.  JUR.  27(1874).  IF THERE ARE REASONS OF PUBLIC POLICY AGAINST
THE CONTINUED APPLICATION OF THIS EQUITABLE DOCTRINE IN THE CASE OF A
PATENT, CONGRESS HAS READY MEANS OF UNDOING THAT WHICH HAS ALWAYS BEEN
PART OF THE PATENT LAW, AS IS TRUE OF OTHER PROVISIONS WHICH IN ITS
WISDOM MAY CALL FOR CHANGE.  THIS DOCTRINE, VOLUMINOUSLY APPLIED IN THE
LAW REPORTS, HAS NEVER BEEN QUESTIONED BY CONGRESS IN THE SUCCESSIVE
ENACTMENTS AMENDING THE PATENT LAW.  ONLY VERY RECENTLY BILLS DEALING
WITH THIS SUBJECT HAVE BEEN INTRODUCED BUT HAVE NOT YET BEEN ACTED
UPON.  SEE, E.G., H.R. 97 AND H.R. 3462, 79TH CONG., 1ST SESS. (1945);
H.R. 3874, 78TH CONG., 1ST SESS. (1943).  THE PLACE FOR RECONSIDERING
THE POLICY WHICH THIS COURT MORE THAN TWENTY YEARS AGO CHARACTERIZED AS
"A RULE WELL SETTLED BY FORTY-FIVE YEARS OF JUDICIAL CONSIDERATION,"
WESTINGHOUSE CO. V. FORMICA CO., SUPRA, AT 349, IS THE CONGRESS.  THAT
FORUM IS NOT CONFRONTED WITH THE STARK ALTERNATIVES OF EITHER ADHERING
TO THE RULE OR WIPING IT OUT, BUT HAS THE WIDE RANGE OF LEGISLATIVE
DISCRETION IN CONSIDERING WHAT IS GOOD AND WHAT IS BAD IN THE RULE AND
FASHIONING LEGISLATION APPROPRIATE TO THE DIVERSIFIED ASPECTS OF THE
PROBLEM. 

THE COURT PROFESSES NEITHER TO REJECT, NOR TO ADHERE TO, THE
EQUITABLE PRINCIPLE OF FAIR DEALING REAFFIRMED BY THE FORMICA CASE.  IT
FINDS GROUND FOR AVOIDING WHAT SEEM TO ME TO BE INESCAPABLE
ALTERNATIVES BY THE CLAIM THAT THE ASSIGNOR HERE PURPORTED TO ASSIGN A
PATENT WHICH TURNS OUT TO BE INVALID BECAUSE IT NOW APPEARS THAT IT WAS
BASED ON AN EARLIER EXPIRED PATENT.  SINCE AN EXPIRED PATENT MAKES IT
PART OF THE PUBLIC DOMAIN, THE ASSIGNOR, ALTHOUGH HE HAD SOLD WHAT NEED
NOT HAVE BEEN BOUGHT, COULD ENTER THE DOMAIN LIKE THE REST OF THE
PUBLIC.  SO GOES THE ARGUMENT.  BUT THIS, I SUBMIT WITH ALL RESPECT, IS
TO THROW OUT THE BABY WITH THE BATH.  FOR IT AMOUNTS TO SAYING THAT THE
ASSIGNOR IN RAISING INVALIDITY IN A SUIT FOR INFRINGEMENT IS JUST A
PART OF THE GENERAL PUBLIC AND CAN ASK THE COURT TO ENFORCE EVERY
DEFENSE OPEN TO THE REST OF THE PUBLIC.  THE ESSENCE OF THE PRINCIPLE
OF FAIR DEALING WHICH BINDS THE ASSIGNOR OF A PATENT IN A SUIT BY THE
ASSIGNEE, EVEN THOUGH IT TURNS OUT THAT THE PATENT IS INVALID OR LACKS
NOVELTY, IS THAT IN THIS RELATION THE ASSIGNOR IS NOT PART OF THE
GENERAL PUBLIC BUT IS APART FROM THE GENERAL PUBLIC.  THE ISOLATED,
INDIVIDUAL RELATION BETWEEN ASSIGNOR AND ASSIGNEE, DUE TO THE SALE BY
THE ASSIGNOR OF SOMETHING WHICH HE AFTERWARDS SHOULD NOT BE ALLOWED TO
SAY WAS NOTHING, IS THE BASIS OF THE DOCTRINE OF FAIR DEALING WHICH
OPERATES AGAINST HIM AND AGAINST NOBODY ELSE.  THAT DOCTRINE IS WHOLLY
CONSISTENT WITH THE RIGHT OF THE GENERAL PUBLIC TO THE FREE AND
UNFETTERED USE OF A PATENT AFTER ITS TIME HAS EXPIRED.  IT IS
SUGGESTED, ALSO, THAT THE PUBLIC IS HARMED BY REMOVING THE ASSIGNOR
FROM THE RANKS OF ACTUAL OR POTENTIAL MANUFACTURERS OF WHAT IS COVERED
BY THE PATENT.  BUT THAT IS TRUE OF EVERY CASE IN WHICH THE ASSIGNOR IS
BARRED FROM QUESTIONING THE VALIDITY OF HIS ASSIGNMENT.  AS AGAINST THE
LOSS TO THE PUBLIC OF ONE POSSIBLE MANUFACTURER IS PUT THE PUBLIC
POLICY OF FAIR DEALING BETWEEN MAN AND MAN.  THAT IS THE MEANING OF THE
FORMICA DOCTRINE.  FN1 

A MACHINE THAT IS NOT PATENTABLE BECAUSE IT IS NOT NOVEL IS JUST AS
MUCH PART OF THE PUBLIC DOMAIN AS A MACHINE ON WHICH THE PATENT HAS
EXPIRED.  IF PUBLIC POLICY DOES NOT PRECLUDE AN INDIVIDUAL FROM BEING
HELD TO A FAIR BARGAIN WITH ANOTHER WHEN HE PURPORTED TO SELL AS A
PATENT WHAT IN FACT WAS NEVER PATENTABLE, WHAT IS THERE IN REASON - FOR
THERE IS NOTHING IN WHAT CONGRESS HAS SAID - THAT SHOULD PRECLUDE
ENFORCEMENT OF A FAIR BARGAIN WHEREBY AN INDIVIDUAL AGREED, IN EFFECT,
NOT TO COMPETE WITH ANOTHER REGARDING A MACHINE WHICH TURNS OUT NOT TO
HAVE BEEN PATENTABLE BECAUSE IT REPRESENTED AN EXPIRED PATENT OPEN TO
ALL THE REST OF THE WORLD?  OF COURSE, PARTIES CANNOT BY AGREEMENT
DEFEAT AN EXPLICIT PROVISION OR PURPOSE OF LEGISLATION.  ONE SHIPPER
CANNOT, FOR INSTANCE, SECURE THE PRIVATE ADVANTAGE OF A LOWER RATE WHEN
THE INTERSTATE COMMERCE ACT PROVIDES FOR EQUALITY OF RATES AMONG
SHIPPERS, PITTSBURGH, C., C. & ST. L.R. CO. V. FINK, 250 U.S. 577; NOR
CAN AN EMPLOYER DEFEAT THE PROTECTIVE PURPOSE OF THE FAIR LABOR
STANDARDS ACT SETTING MINIMUM WAGE LIMITS, BY AN AGREEMENT BASED ON THE
INEQUALITY OF BARGAINING POWER BETWEEN EMPLOYERS AND INDIVIDUAL
EMPLOYEES, BROOKLYN SAVINGS BANK V. O'NEIL, 324 U.S. 697, 706.  THERE
IS NOTHING COMPARABLE TO SUCH SITUATIONS IN THE LANGUAGE OR PURPOSE OF
THE PATENT LAWS REGARDING ASSIGNMENT OF PATENTS.  ON THE CONTRARY, AS
WE HAVE SEEN, THE PRINCIPLE WHEREBY AN ASSIGNOR IS HELD TO HIS BARGAIN
WITH THE ASSIGNEE HAS BEEN PART OF THE TEXTURE OF OUR PATENT LAW
THROUGHOUT ITS HISTORY.  CONGRESS IN ITS SUCCESSIVE ENACTMENTS
MODIFYING THE PATENT LAW HAS RESPECTED THIS PRINCIPLE AND LEFT IT
UNTOUCHED.  FN2 

HAPPILY LAW IS NOT SO DIVORCED FROM ETHICAL STANDARDS THAT A HITHERTO
UNQUESTIONED PRINCIPLE OF FAIR DEALING SHOULD BE DEEMED HOSTILE TO ANY
BRANCH OF THE LAW.  BUT IF THE PRINCIPLE OF FAIR DEALING AS BETWEEN THE
ASSIGNOR AND THE ASSIGNEE OF A PATENT THAT HAS FOR SO LONG BEEN PART OF
THE PATENT LAW IS TO BE REPUDIATED JUDICIALLY, IT IS BETTER TO DO SO
EXPLICITLY, NOT BY CIRCUMLOCUTION. 

FN1  THE COMPLICATED FACTS IN THE FORMICA CASE HAVE SOMEWHAT OBSCURED
THE TRUE SCOPE AND MEANING OF THAT DECISION.  WHAT WAS DECIDED IS
PERHAPS BEST DISCLOSED IN THE LOWER COURT'S OPINION WHICH WAS HERE
AFFIRMED.  THAT OPINION WAS BY JUDGE DENISON WHO SPOKE WITH SPECIAL
AUTHORITY ON PATENT LAW:  "IT MAY BE GRANTED THAT THESE TWO CLAIMS (IN
CONTROVERSY) WERE PROPERLY READABLE UPON THE SPECIFICATION AND DRAWINGS
OF THE APPLICATION SIGNED BY O'CONNOR (THE ASSIGNOR) - THAT IS TO SAY,
IN THE LANGUAGE OF THE PATENT OFFICE, THAT HE HAD THE RIGHT TO MAKE
THESE CLAIMS.  NEVERTHELESS THEY EXPRESSED A CONCEPTION OF THE
INVENTION, WHICH RESTED SOLELY ON THE 'NONPLANIFORM' SHAPE OF THE
ARTICLE AND WAS IN THIS RESPECT BROADER THAN ANY CLAIM WHICH O'CONNOR
HAD DRAFTED, AND IF THE PRIOR BAEKELAND PATENT HAD BEEN KNOWN TO
O'CONNOR, AS IT BECAME KNOWN TO HIS ASSIGNEES WHEN IT LATER COMPELLED
THEM TO ABANDON THE ORIGINAL BROAD CLAIMS, HE PROBABLY NEVER WOULD HAVE
CLAIMED AS HIS THE INVENTION THUS FORMULATED.  THE RECORD DOES NOT
SUPPORT THE INFERENCE THAT O'CONNOR EITHER EXPRESSLY OR IMPLIEDLY
REPRESENTED TO THE WESTINGHOUSE COMPANY (THE ASSIGNEE) THAT HE WAS THE
INVENTOR OF THE PROCESS DEFINED IN THESE TWO CLAIMS, AND HENCE THE
CLAIM OF ESTOPPEL MUST FAIL."  288 F. 330, 334. 

FN2  NOR CAN THE ASSIGNOR OF AN EXPIRED PATENT, WHEN THE ASSIGNEE
SEEKS TO HOLD HIM TO HIS BARGAIN, INVOKE THE LAW CONDEMNING CONTRACTS
IN RESTRAINT OF TRADE.  SO FAR AS THE HITHERTO RECOGNIZED PRINCIPLE OF
FAIR DEALING BETWEEN AN ASSIGNOR AND HIS ASSIGNEE UNDULY RESTRAINS THE
FREEDOM OF ACTION OF THE ASSIGNOR, IT MERELY RESTRAINS IN THE MANNER
THAT EVERY CONTRACT IS A RESTRAINT OF TRADE.  SEE CHICAGO BOARD OF
TRADE V. UNITED STATES, 246 U.S. 231, 238.  AND IT RESTRAINS EQUALLY
WHETHER WHAT IS ASSIGNED IS AN EXPIRED PATENT OR SOMETHING THAT NEVER
WAS A PATENT.  IN FACT, HOWEVER, THE DOCTRINE OF SUCH FAIR DEALING DOES
NOT RUN COUNTER TO THE CONSIDERATIONS BY WHICH THE LAW OUTLAWS
RESTRAINTS WHICH PERSONS MAY IMPOSE ON THEMSELVES BY CONTRACT.  FOR
SUCH AN IMPLIED RESTRAINT AS IS FOUND IN THE ASSIGNMENT OF A PATENT,
PURPORTEDLY VALID BUT IN FACT INVALID, LIKE ALL REASONABLE RESTRAINTS,
DOES NOT OFFEND THE OBJECTIONS TO UNREASONABLE RESTRAINTS.  THE
UNDERLYING RATIONALE OF THE LAW AGAINST UNREASONABLE RESTRAINTS IS
TWOFOLD.  THE FIRST OF THESE REASONS IS THAT THE LAW WILL NOT LEND ITS
AID IN THE ENFORCEMENT OF A CONTRACT BY MEANS OF WHICH A MAN MAY
DEPRIVE HIMSELF OF THE POSSIBILITY OF EARNING A LIVELIHOOD AND DEPRIVE
THE PUBLIC OF THE "BENEFIT OF HIS LABOR."  THE SECOND, "THAT SUCH
RESTRAINTS TENDED TO GIVE  ...  THE BENEFICIARY OF SUCH RESTRAINTS, A
MONOPOLY OF THE TRADE, FROM WHICH HE HAD THUS EXCLUDED ONE COMPETITOR,
AND BY THE SAME MEANS MIGHT EXCLUDE OTHERS."  TAFT, J., IN UNITED
STATES V. ADDYSTON PIPE & STEEL CO., 85 F. 271, 279, MODIFIED, 175 U.S.
211.  NEITHER CONSIDERATION IS PERTINENT HERE. 
..END :






GLASS CITY BANK V. U.S., 326 U.S. 265 


NO. 50.  ARGUED OCTOBER 15, 16, 1945.  - DECIDED NOVEMBER 13, 1945.  -
146 F.2D 831, AFFIRMED. 


1.  SECTION 3670 OF THE INTERNAL REVENUE CODE, WHICH PROVIDES THAT THE
AMOUNT OF TAXES OWED THE UNITED STATES GOVERNMENT BY A TAXPAYER "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," AND SEC.
3671 CREATE A CONTINUING TAX LIEN COVERING ALL PROPERTY OR RIGHTS TO
PROPERTY OWNED BY A TAX DELINQUENT AT ANY TIME DURING THE LIFE OF THE
LIEN, INCLUDING PROPERTY ACQUIRED AFTER THE LIEN AROSE.  P. 267. 

2.  SECTION 3678 SHOWS A PLAIN INTENT TO SUBJECT TO THE TAX LIEN
"PROPERTY OWNED BY THE DELINQUENT" WHEN SUIT TO ENFORCE THE LIEN IS
FILED, RATHER THAN ONLY THAT OWNED WHEN THE LIEN AROSE.  P. 267. 

GLASS CITY BANK V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 325 U.S. 844, TO REVIEW AFFIRMANCE OF AN ORDER GRANTING
PRIORITY TO THE UNITED STATES OVER A JUDGMENT CREDITOR WHOSE JUDGMENT
WAS OBTAINED AFTER THE TAX LIEN AROSE BUT BEFORE THE PROPERTY IN
QUESTION WAS ACQUIRED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1941 THE PETITIONER BANK OBTAINED A JUDGMENT IN A PENNSYLVANIA
STATE COURT AGAINST ONE FRANK A. MADDAS, FOR ABOUT $19,000.00.  THE
UNITED STATES HAD UNPAID, JUDICIALLY ESTABLISHED, INCOME TAX CLAIMS
AGAINST MADDAS FOR THE YEARS 1920, 1921, AND 1922,  FN1  WHICH EXCEED
$1,000,000.00.  40 B.T.A. 572; 114 F.2D 548.  BECAUSE OF MADDAS' PAST
SERVICES AS A STATE COURT RECEIVER OF A BREWING COMPANY, THE TRUSTEE OF
THAT COMPANY, NOW IN BANKRUPTCY, OWES MADDAS $3,228.53.  THE ISSUE HERE
IS WHETHER THE BANK OR THE GOVERNMENT MAY RECOVER ON THE DEBT OWED TO
MADDAS.  THE BANK CLAIMS UNDER A LIEN ALLEGED TO HAVE BEEN CREATED BY
AN ATTACHMENT-EXECUTION ISSUED ON ITS STATE COURT JUDGMENT AND SERVED
ON THE TRUSTEE IN BANKRUPTCY FEBRUARY 21, 1941.  THE UNITED STATES
CLAIMED PRIORITY, BY VIRTUE OF A TAX LIEN UNDER 26 U.S.C., SECS. 3670,
3671,  FN2  WHICH BOTH PARTIES ADMIT AROSE IN 1935, FIVE YEARS PRIOR TO
THE TAXPAYER'S SERVICES AS RECEIVER.  THE CONTENTION OF THE BANK IN THE
DISTRICT COURT  FN3  WAS THAT THE STATUTORY TAX LIEN, WHICH BECAME
EFFECTIVE IN 1935, DID NOT COVER MADDAS' CLAIM SINCE IT DID NOT EXIST
WHEN THE LIEN AROSE BUT ONLY THEREAFTER, AND THAT THE GOVERNMENT,
THEREFORE, COULD REACH THE DEBT ONLY BY GARNISHMENT OR DISTRAINT AS
PROVIDED BY OTHER SECTIONS OF THE INTERNAL REVENUE CODE.  THE CIRCUIT
COURT OF APPEALS CONCLUDED THAT THE STATUTORY TAX LIEN DID COVER AFTER
ACQUIRED PROPERTY AND ACCORDINGLY AFFIRMED THE DISTRICT COURT'S
JUDGMENT FOR THE UNITED STATES.  146 F.2D 831.  WE GRANTED CERTIORARI
BECAUSE OF STATEMENTS MADE IN THE OPINIONS OF OTHER COURTS WHICH SEEMED
TO CONFLICT WITH THE CONCLUSION BELOW.  UNITED STATES V. LONG ISLAND
DRUG CO., 115 F.2D 983; UNITED STATES V. PACIFIC RAILROAD, 1 F. 97. 

BY SEC. 3670, 26 U.S.C., CONGRESS IMPRESSED A LIEN UPON "ALL PROPERTY
AND RIGHTS TO PROPERTY, WHETHER REAL OR PERSONAL, BELONGING" TO A TAX
DELINQUENT.  STRONGER LANGUAGE COULD HARDLY HAVE BEEN SELECTED TO
REVEAL A PURPOSE TO ASSURE THE COLLECTION OF TAXES.  NOT CONTENT WITH
THIS LANGUAGE, HOWEVER, CONGRESS ALSO PROVIDED THAT THE LIEN SHOULD
"CONTINUE UNTIL THE LIABILITY FOR SUCH AMOUNT IS SATISFIED OR BECOMES
UNENFORCEABLE BY REASON OF LAPSE OF TIME."  26 U.S.C., SEC. 3671. 
THESE TWO SECTIONS READ TOGETHER INDICATE THAT A CONTINUING LIEN COVERS
PROPERTY OR RIGHTS TO PROPERTY IN THE DELINQUENT'S HANDS AT ANY TIME
PRIOR TO EXPIRATION.  THIS IS CONFIRMED BY SEC. 3678, WHICH PROVIDES
THAT "WHETHER DISTRAINT PROCEEDINGS HAVE BEEN COMMENCED OR NOT," ACTION
TO ENFORCE THE LIEN MAY BE INSTITUTED AGAINST "ANY PROPERTY AND RIGHTS
TO PROPERTY, WHETHER REAL OR PERSONAL, OR TO SUBJECT ANY SUCH PROPERTY
AND RIGHTS TO PROPERTY OWNED BY THE DELINQUENT, OR IN WHICH HE HAS ANY
RIGHT, TITLE, OR INTEREST, TO THE PAYMENT OF SUCH TAX."  FOR HERE IS A
PLAIN INTENT TO SUBJECT TO THE LIEN "PROPERTY OWNED BY THE DELINQUENT"
WHEN SUIT IS FILED, RATHER THAN ONLY THAT OWNED WHEN THE LIEN AROSE. 
INDEED, THE MEANING OF THESE SECTIONS IS SO PLAIN AS TO RENDER
SUPERFLUOUS A DETAILED DISCUSSION OF THE LEGISLATIVE HISTORY WHICH IS
CONSISTENT WITH OUR INTERPRETATION.  FN4 

FURTHERMORE THE AGENCIES ADMINISTERING THE STATUTE HAVE CONSTRUED IT
IN THE SAME WAY.  THUS, IN 1928 GENERAL COUNSEL MEMORANDUM NO. 4715,
VII-2 CUM. BUL.  94, DECLARED THAT "A DELINQUENT TAXPAYER MAY AT ANY
TIME PRIOR TO THE EXPIRATION OF THE STATUTORY PERIOD OF LIMITATION
BECOME POSSESSED OF PROPERTY AGAINST WHICH THE LIEN MAY ATTACH, THUS
MAKING THE TAX LIABILITY ENFORCEABLE THROUGH THE LIEN."  AGAIN IN
TREASURY DECISION 4275, VIII-2 CUM. BUL.  167, COLLECTORS WERE
ADMONISHED TO KEEP ON THE ALERT WHERE NOTICE OF LIENS HAD BEEN FILED,
SO AS TO EXTEND THE PERIOD OF THEIR EFFECTIVENESS "WHENEVER IT IS
REASONABLY POSSIBLE THAT THE TAXPAYER MAY, IN THE FUTURE, ACQUIRE
PROPERTY OR PROPERTY RIGHTS FROM WHICH THE TAX LIABILITY MAY BE
SATISFIED."  AND IN GRAVES V. COMMISSIONER, 12 B.T.A. 124, 133, THE TAX
BOARD SAID THAT THE LIEN APPLIED, "OF COURSE, TO ALL THE PROPERTY THAT
THE TAX DEBTOR SUBSEQUENTLY ACQUIRES." 

THE BANK'S ARGUMENTS ON BEHALF OF A STATUTORY CONSTRUCTION SUPPORTING
ITS CLAIMS ARE WITHOUT MERIT.  WE ARE TOLD THAT TO INCREASE UNDULY THE
SCOPE OF THE GOVERNMENT'S LIEN IS UNWISE.  BUT MOST OF THE OBJECTIONS
RAISED WOULD APPLY NOT MERELY TO LIENS THAT COVER AFTER-ACQUIRED
PROPERTY, BUT ALSO WITH EQUAL FORCE TO MOST OTHER TYPES OF LIENS.  AT
ANY RATE THE WISDOM OF LEGISLATION IS A QUESTION FOR CONGRESS.  WE ARE
FURTHER TOLD THAT THE TAX LIEN CANNOT ATTACH TO MADDAS' CLAIM BECAUSE
THE LAW OF PENNSYLVANIA, WHERE THIS OBLIGATION AROSE, DOES NOT TREAT
"FUTURE EARNING CAPACITY" AS "PROPERTY OR RIGHTS TO PROPERTY."  BUT THE
QUESTION OF WHETHER THE TAX LIEN COVERS FUTURE EARNING CAPACITY IS NOT
BEFORE US.  FOR THE GOVERNMENT HERE SEEKS TO REACH AN ALREADY EXISTING
OBLIGATION FOR SERVICES RENDERED, WHICH CLEARLY FALLS WITHIN THE
STATUTORY LANGUAGE.  CF. MATTER OF ROSENBERG, 269 N.Y. 247, 199 N.E.
206.  MOREOVER, THE CONGRESSIONAL MEANING IS NOT TO BE DETERMINED BY
RESORTING TO THE LOCAL LAW OF PENNSYLVANIA.  UNITED STATES V. SNYDER,
149 U.S. 210; HELVERING V. STUART, 317 U.S. 154, 161-162. 

OUR CONCLUSION IS THAT THE LIEN APPLIES TO PROPERTY OWNED BY THE
DELINQUENT AT ANY TIME DURING THE LIFE OF THE LIEN.  THIS IS IN ACCORD
WITH ALL THE CASES THAT HAVE DIRECTLY PASSED UPON THIS QUESTION.  FN5
AS PREVIOUSLY NOTED, THERE ARE TWO CASES WHICH CONTAIN LANGUAGE WHICH
MIGHT LEAD TO ANOTHER CONCLUSION.  BUT NOTHING THERE SAID OFFERS ANY
PERSUASIVE REASON FOR RESTRICTING THE SCOPE OF THE LIEN.  AFFIRMED. 

FN1  THERE IS ALSO A CLAIM FOR 1936 TAXES WHICH RAISES DIFFERENT
QUESTIONS THAT NEED NOT BE CONSIDERED HERE. 

FN2  "SEC.  3670.  PROPERTY SUBJECT TO LIEN. 

"IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY THE
SAME AFTER DEMAND, THE AMOUNT (INCLUDING ANY INTEREST, PENALTY,
ADDITIONAL AMOUNT, OR ADDITION TO SUCH TAX, TOGETHER WITH ANY COSTS
THAT MAY ACCRUE IN ADDITION THERETO) SHALL BE A LIEN IN FAVOR OF THE
UNITED STATES UPON ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR
PERSONAL, BELONGING TO SUCH PERSON. 

"SEC. 3671.  PERIOD OF LIEN. 

"UNLESS ANOTHER DATE IS SPECIFICALLY FIXED BY LAW, THE LIEN SHALL
ARISE AT THE TIME THE ASSESSMENT LIST WAS RECEIVED BY THE COLLECTOR AND
SHALL CONTINUE UNTIL THE LIABILITY FOR SUCH AMOUNT IS SATISFIED OR
BECOMES UNENFORCEABLE BY REASON OF LAPSE OF TIME." 

MORTGAGEE, PLEDGEE, PURCHASER, OR JUDGMENT CREDITOR UNTIL NOTICE IS
FILED IN AN OFFICE DESIGNATED BY STATE LAW OR IN THE OFFICE OF THE
CLERK OF THE UNITED STATES DISTRICT COURT.  HERE SUCH NOTICE WAS DULY
FILED. 

FN3  THE DISTRICT COURT ACQUIRED JURISDICTION BECAUSE THE
INDEBTEDNESS TO MADDAS WAS DUE FROM THE TRUSTEE.  THE PROCEDURE BY
WHICH THAT JURISDICTION WAS ACQUIRED IS SUFFICIENTLY SET FORTH IN THE
OPINIONS BELOW AND NEED NOT BE REPEATED HERE.  54 F.SUPP.  11; 146 F.2D
831. 

FN4  14 STAT. 98, 107; 15 STAT. 125, 167; 37 STAT. 1016; 45 STAT.
791, 875. 

FN5  CITIZENS NATIONAL BANK V. UNITED STATES, 135 F.2D 527(C.C.A.9);
NELSON V. UNITED STATES, 139 F.2D 162(C.C.A.9); INVESTMENT & SECURITIES
CO. V. UNITED STATES, 140 F.2D 894(C.C.A.9); UNITED STATES V. WORLEY,
64 F.SUPP.  271(S.D. IND.); MINNESOTA MUTUAL LIFE INS. CO. V. UNITED
STATES, 47 F.2D 942, 944(N.D. TEX.).  SEE ALSO UNITED STATES V. WARREN
R. CO., 127 F.2D 134; MATTER OF ROSENBERG, SUPRA. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I AM UNABLE TO FIND IN THE APPLICABLE STATUTES THE CLEAR EXPRESSIONN
OF CONGRESSIONAL INTENT WHICH I THINK IS REQUIRED TO EXTEND THE TAX
LIEN TO AFTER-ACQUIRED PROPERTY.  UNDER SEC. 3670 THE LIEN IS IMPOSED
AS TO TAXPAYERS DELINQUENT AFTER DEMAND "UPON ALL PROPERTY AND RIGHTS
TO PROPERTY, WHETHER REAL OR PERSONAL, BELONGING TO SUCH PERSON."  BY
SEC. 3671 THE LIEN ARISES, UNLESS ANOTHER DATE IS SPECIFICALLY FIXED BY
LAW, "AT THE TIME THE ASSESSMENT LIST WAS RECEIVED BY THE COLLECTOR"
AND CONTINUES "UNTIL THE LIABILITY FOR SUCH AMOUNT IS SATISFIED OR
BECOMES UNENFORCEABLE BY REASON OF LAPSE OF TIME."  NOTHING IN THESE
AFTER-ACQUIRED PROPERTY.  THE LANGUAGE USED, WHETHER IN SEC. 3670 OR IN
SEC. 3671, IS FULLY SATISFIED IF THE LIEN IS HELD TO ATTACH TO PROPERTY
BELONGING TO THE TAXPAYER AS OF THE TIME THE LIEN ARISES.  FN1  HAD
CONGRESS INTENDED TO REACH NOT ONLY EVERY DESCRIPTION OF PROPERTY THEN
OWNED BY THE TAXPAYER, BUT ALSO EVERY SPECIES WHICH MIGHT LATER COME
INTO HIS HANDS, CLEARER WORDS THAN "ALL PROPERTY" AND "BELONGING TO"
WERE READILY AVAILABLE TO EXPRESS THIS PURPOSE.  THE HARSHNESS OF THE
CONSEQUENCES, NOT ONLY FOR THE TAXPAYER BUT FOR OTHERS DEALING WITH
HIM, WHICH THIS CASE DRAMATICALLY EXEMPLIFIES, GIVES REASON BEYOND THE
AMBIGUITY OF THE LANGUAGE USED FOR THINKING THERE WAS NO SUCH INTENT. 

NOR IS SUCH AN INTENT SUPPLIED BY USE OF THE PRESENT TENSE OF THE
VERB "HAS" IN THE FINAL CLAUSE OF SEC. 3678(A).  FN2  THAT SECTION
MERELY PROVIDES FOR THE MANNER IN WHICH THE LIEN DEFINED BY SECS. 3670
AND 3671 SHALL BE ENFORCED.  SECTION 3678(A), IN MY OPINION, WAS NOT
INTENDED TO ADD TO THE SCOPE OF THE LIEN OR EXTEND ITS DEFINITION
BEYOND THE LIMITS DEFINED BY THOSE SECTIONS.  IF THE LIEN WAS DESIGNED
TO REACH AFTER-ACQUIRED PROPERTY, THE ALTERNATIVE METHOD SPECIFIED IN
SEC. 3678(A) FOR REACHING THE PROPERTY THEN OWNED BY THE DEBTOR WOULD
SEEM TO BE REDUNDANT. 

I FIND NOTHING IN THE LEGISLATIVE HISTORY WHICH DISCLOSES ANY
INTENTION, MORE CLEARLY THAN THE WORDS OF THE STATUTE THEMSELVES, TO
INCLUDE AFTER-ACQUIRED PROPERTY WITHIN THE COVERAGE OF THE LIEN.  IN
THE ABSENCE OF CLEARER STATUTORY FOUNDATION, THE COMPARATIVELY RECENT
ADMINISTRATIVE CONSTRUCTION CANNOT SUPPLY THE REQUIRED CONGRESSIONAL
INTENT; AND THE SCANTY EVIDENCE OF ESTABLISHED AND ACCEPTED PRACTICE IS
NEITHER SO WHOLLY CONSISTENT NOR SO CONVINCING AS TO FURNISH THIS
NECESSARY ELEMENT. 

ACCORDINGLY I WOULD REVERSE THE JUDGMENT AND REMAND THE CAUSE TO THE
CIRCUIT COURT OF APPEALS FOR THE CONSIDERATION AND DISPOSITION OF THE
ISSUES PRESENTED TO BUT NOT DETERMINED BY IT IN VIEW OF ITS DISPOSITION
UPON THE MATTERS NOW DETERMINED HERE. 

FN1  ALTHOUGH BY SEC. 3671 THE LIEN "ARISES" AS OF THE TIME THE
ASSESSMENT LIST IS RECEIVED BY THE COLLECTOR, IT RELATES BACK TO THE
TIME OF NOTICE AND DEMAND, SEC. 3670, AS AGAINST THE TAXPAYER, THOUGH
BY VIRTUE OF SEC. 3672(A) IT IS NOT VALID AS AGAINST ANY MORTGAGEE,
PLEDGEE, PURCHASER, OR JUDGMENT CREDITOR "UNTIL NOTICE THEREOF HAS BEEN
FILED BY THE COLLECTOR" AS PROVIDED. 

FN2  "SEC.  3678.  CIVIL ACTION TO ENFORCE LIEN ON PROPERTY. 

"(A)  FILING.  - IN ANY CASE WHERE THERE HAS BEEN A REFUSAL OR
NEGLECT TO PAY ANY TAX, AND IT HAS BECOME NECESSARY TO SEIZE AND SELL
PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR PERSONAL, TO SATISFY
THE SAME, WHETHER DISTRAINT PROCEEDINGS HAVE BEEN COMMENCED OR NOT, THE
ATTORNEY GENERAL AT THE REQUEST OF THE COMMISSIONER MAY DIRECT A CIVIL
ACTION TO BE FILED, IN A DISTRICT COURT OF THE UNITED STATES, TO
ENFORCE THE LIEN OF THE UNITED STATES FOR TAX UPON ANY PROPERTY AND
RIGHTS TO PROPERTY, WHETHER REAL OR PERSONAL, OR TO SUBJECT ANY SUCH
PROPERTY AND RIGHTS TO PROPERTY OWNED BY THE DELINQUENT, OR IN WHICH HE
HAS ANY RIGHT, TITLE, OR INTEREST, TO THE PAYMENT OF SUCH TAX." 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS JOIN IN THIS
OPINION. 
..END :






















HAWK V. OLSON, 326 U.S. 271 


NO. 17.  ARGUED OCTOBER 8, 1945.  - DECIDED NOVEMBER 13, 1945.  - 145
NEB. 306, 16 N.W.2D 181, REVERSED. 


1.  UPON REVIEW OF A STATE COURT JUDGMENT DISMISSING A PETITION FOR
HABEAS CORPUS FOR FAILURE TO STATE A CAUSE OF ACTION, THIS COURT
DETERMINES FOR ITSELF WHETHER THE ALLEGATIONS OF THE PETITION ENTITLE
THE PETITIONER TO A HEARING ON HIS CLAIM THAT IN HIS CONVICTION OF
MURDER HE WAS DENIED DUE PROCESS IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  P. 273. 

2.  THE PETITION TO A STATE COURT OF NEBRASKA FOR HABEAS CORPUS, BY
ONE UNDER SENTENCE OF A COURT OF THAT STATE UPON A CONVICTION OF MURDER
IN THE FIRST DEGREE, SUFFICIENTLY ALLEGED THAT AT HIS TRIAL THE
PETITIONER WAS DENIED OPPORTUNITY TO CONSULT WITH COUNSEL IN THE
CRITICAL PERIOD BETWEEN HIS ARRAIGNMENT AND THE IMPANELING OF THE JURY
A DENIAL OF DUE PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT - AND
HE WAS ENTITLED TO A HEARING UPON THE PETITION.  PP. 276-278. 

DENIAL OF OPPORTUNITY TO CONSULT WITH COUNSEL ON ANY MATERIAL STEP
AFTER INDICTMENT OR SIMILAR CHARGE AND ARRAIGNMENT VIOLATES THE
FOURTEENTH AMENDMENT.  P. 278. 

3.  PETITIONER WILL HAVE AN OPPORTUNITY ON THE NEW HEARING TO FURNISH
SUCH FURTHER SPECIFICATION AS THE STATE PRACTICE MAY REQUIRE IN SUPPORT
OF HIS CLAIM THAT HIS CONVICTION WAS PROCURED BY THE USE OF TESTIMONY
KNOWN BY THE PROSECUTOR AND THE TRIAL COURT TO HAVE BEEN PERJURED.  P.
273. 

4.  ON THE ISSUES OF THE SUFFICIENCY OF THE EVIDENCE AND THE
INTERFERENCE WITH THE RIGHT OF APPEAL, THIS COURT ACCEPTS THE DECISION
OF THE STATE COURT THAT THE FIRST CAN NOT BE RAISED BY HABEAS CORPUS
AND THAT THE SECOND IS NOT SUPPORTED BY THE FACTS STATED BY THE
PETITIONER.  P. 273. 

HAWK V. OLSON, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

CERTIORARI, 324 U.S. 839, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
WHICH DISMISSED A PETITION FOR HABEAS CORPUS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT OF CERTIORARI BRINGS BEFORE US THE JUDGMENT OF THE SUPREME
COURT OF NEBRASKA WHICH AFFIRMED A JUDGMENT OF A DISTRICT COURT
DISMISSING A PETITION FOR HABEAS CORPUS TO INQUIRE INTO PETITIONER'S
DETENTION FOR WANT OF MERIT AND FAILURE TO STATE A CAUSE OF ACTION. 
HAWK V. OLSON, 145 NEB. 306, 16 N.W.2D 181.  FN1  PETITIONER WAS IN THE
PENITENTIARY AFTER CONVICTION FOR MURDER.  THE WRIT WAS GRANTED BECAUSE
A SUBSTANTIAL FEDERAL QUESTION AS TO RESTRAINT WITHOUT DUE PROCESS OF
LAW UNDER THE FOURTEENTH AMENDMENT SEEMED TO BE PRESENTED BY THE
PETITION FOR CERTIORARI AND THE RESPONSE.  324 U.S. 839. 

AS NO RESPONSE WAS FILED OR EVIDENCE RECEIVED IN THE DISTRICT COURT,
WE ACCEPT AS TRUE ALL WELL-PLEADED ALLEGATIONS OF THE PETITION AND, IN
THE EXERCISE OF THE DUTY WHICH LIES ON US AS WELL AS THE NEBRASKA
COURTS TO SAFEGUARD THE FEDERAL CONSTITUTIONAL RIGHTS OF PETITIONER,
EXAMINE FOR OURSELVES WHETHER UNDER THE FACTS STATED THE PETITIONER IS
NOW ENTITLED TO A HEARING ON THE CLAIMED VIOLATIONS OF THE DUE PROCESS
CLAUSE IN HIS CONVICTION FOR MURDER IN THE FIRST DEGREE.  LISENBA V.
CALIFORNIA, 314 U.S. 219, 237; WHITE V. RAGEN, 324 U.S. 760. 

IN ITS OPINION THE SUPREME COURT OF NEBRASKA CAREFULLY CONSIDERS A
NUMBER OF CLAIMS OF DENIAL OF DUE PROCESS.  IT IS SAID THAT SOME OF THE
GROUNDS FOR RELEASE ARE PLEADED IN THE FORM OF CONCLUSIONS AND THAT
NEBRASKA PROCEDURE REQUIRES IN HABEAS CORPUS PROCEEDINGS THAT THE
APPLICANT MUST SET FORTH THE FACTS FROM WHICH IT MUST APPEAR THAT HE
WILL BE ENTITLED TO DISCHARGE.  HAWK V. OLSON, 16 N.W.2D 181, 183, 1. 
C. WE ASSUME, SINCE SUCH GROUNDS APPEAR IN THE PETITION, THAT ONE OF
THESE PRETERMITTED GROUNDS IS THAT "CONVICTION WAS OBTAINED BY THE USE
OF PERJURED TESTIMONY KNOWINGLY USED BY THE PROSECUTING OFFICIALS AND
THE TRIAL COURT."  SEE EX PARTE HAWK, 321 U.S. 114, 116.  WHATEVER
NEBRASKA MAY REQUIRE IN THE WAY OF FURTHER SPECIFICATION MAY BE
FURNISHED, IF AVAILABLE, AND PERMISSIBLE UNDER THE LAW OF NEBRASKA (SEE
HAWK V. OLSON, SUPRA, 183, R.C.), BY PETITIONER ON A NEW HEARING.  CF.
TOMKINS V. MISSOURI, 323 U.S. 485, 487.  ON THE ISSUES OF THE
SUFFICIENCY OF THE EVIDENCE AND THE INTERFERENCE WITH THE RIGHT OF
APPEAL, WE ACCEPT THE DECISION OF NEBRASKA THAT THE FIRST CANNOT BE
RAISED BY HABEAS CORPUS (HAWK V. OLSON, 16 N.W.2D 181, 183) AND THAT
THE SECOND IS NOT SUPPORTED BY THE FACTS STATED BY PETITIONER.  FN2
OTHER OBJECTIONS TO THE JUDGMENT HAVE BEEN MADE WHICH ARE NOT DISCUSSED
HEREIN BUT WHICH WE HAVE LOOKED INTO AND WHICH WE DO NOT CONSIDER MERIT
FURTHER ATTENTION. 

PETITIONER CONTENDS THAT HIS CONVICTION VIOLATES THE FOURTEENTH
AMENDMENT BECAUSE OF DENIAL AT HIS TRIAL OF AN OPPORTUNITY TO EXAMINE
THE CHARGE, SUBPOENA WITNESSES, CONSULT COUNSEL AND PREPARE A DEFENSE. 
DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL DOES VIOLATE DUE PROCESS. 
POWELL V. ALABAMA, 287 U.S. 45, 58; HOUSE V. MAYO, 324 U.S. 42, 46;
COMPARE WHITE V. RAGEN, 324 U.S. 760, 764. 

SINCE FRANK V. MANGUM, 237 U.S. 309, 331, THIS COURT HAS RECOGNIZED
THAT HABEAS CORPUS IN THE FEDERAL COURTS BY ONE CONVICTED OF A CRIMINAL
OFFENSE IS A PROPER PROCEDURE "TO SAFEGUARD THE LIBERTY OF ALL PERSONS
WITHIN THE JURISDICTION OF THE UNITED STATES AGAINST INFRINGEMENT
THROUGH ANY VIOLATION OF THE CONSTITUTION," EVEN THOUGH THE EVENTS
WHICH WERE ALLEGED TO INFRINGE DID NOT APPEAR UPON THE FACE OF THE
RECORD OF HIS CONVICTION.  THIS OPPORTUNITY FOR AN EXAMINATION INTO THE
"VERY TRUTH AND SUBSTANCE OF THE CAUSES OF HIS DETENTION" WAS SAID IN
THE FRANK CASE TO HAVE COME FROM THE ADOPTION IN 1867 OF A STATUTE
WHICH EMPOWERED FEDERAL COURTS TO EXAMINE INTO RESTRAINTS OF LIBERTY IN
VIOLATION OF THE CONSTITUTION OF THE UNITED STATES.  14 STAT. 385, C.
28.  FN3  THE LEGISLATION ENLARGED FOR THE FEDERAL COURTS THE "BARE
LEGAL REVIEW" OF THE AUTHORITY UNDER WHICH A PETITIONER WAS HELD WHICH
HAD BEEN PREVIOUSLY AFFORDED BY HABEAS CORPUS.  FN4  JOHNSON V. ZERBST,
304 U.S. 458, 465-67.  SEE ALSO IN RE NEAGLE, 135 U.S. 1, 69-76;
MCNALLY V. HILL, 293 U.S. 131. 

THIS LIBERALIZATION OF HABEAS CORPUS REQUIRED FEDERAL COURTS, WHEN
THE ISSUE WAS PRESENTED, TO EXAMINE WHETHER A CONVICTION OCCURRED UNDER
SUCH INFLUENCE BY MOB SPIRIT AS TO DENY DUE PROCESS.  FRANK V. MANGUM,
SUPRA, 331, 335, DISSENT 347.  THE POWER WAS CALLED INTO PLAY A FEW
YEARS LATER TO EXAMINE A STATE CONVICTION UNDER ALLEGED COMMUNITY
COERCION; AND THIS COURT SAID THAT, IF THE FACTS SET OUT WERE TRUE, THE
TRIAL WOULD NOT SUPPORT A CONVICTION.  MOORE V. DEMPSEY, 261 U.S. 86. 
IN MOONEY V. HOLOHAN, 294 U.S. 103, 112, IT WAS DECLARED THAT THE
KNOWING USE OF MATERIAL PERJURED TESTIMONY BY A STATE PROSECUTOR WOULD
MAKE A TRIAL UNFAIR WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT. 

WHEN THE ABSENCE OF COUNSEL AT A TRIAL WAS URGED AS A GROUND FOR A
FEDERAL WRIT OF HABEAS CORPUS, WE HELD THAT IN FEDERAL COURTS A FELONY
CONVICTION WITHOUT BENEFIT OF COUNSEL IS SUBJECT TO COLLATERAL ATTACK
BECAUSE A VIOLATION OF THE ACCUSED'S CONSTITUTIONAL RIGHT TO THE
SERVICES OF AN ATTORNEY UNLESS HE HAS INTELLIGENTLY WAIVED THAT
PRIVILEGE.  JOHNSON V. ZERBST, SUPRA, 467-68; WALKER V. JOHNSTON, 312
U.S. 275, 286.  THE SAME IS TRUE IN INSTANCES OF COERCION.  WALEY V.
JOHNSTON, 316 U.S. 101, 104. 

IN STATE PROSECUTIONS A CONVICTION ON A PLEA OF GUILTY, OBTAINED BY A
TRICK, SMITH V. O'GRADY, 312 U.S. 329, 334, OR, AFTER REFUSAL OF A
PROPER REQUEST FOR COUNSEL, BECAUSE OF THE ACCUSED'S INCAPACITY
ADEQUATELY TO DEFEND HIMSELF, WILLIAMS V. KAISER, 323 U.S. 471, WILL
NOT SUPPORT IMPRISONMENT.  SUCH PROCEDURE VIOLATES THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION.  SEE TOMKINS V. MISSOURI, 323 U.S. 485;
COCHRAN V. KANSAS, 316 U.S. 255.  THAT AMENDMENT IS VIOLATED ALSO WHEN
A DEFENDANT IS FORCED BY A STATE TO TRIAL IN SUCH A WAY AS TO DEPRIVE
HIM OF THE EFFECTIVE ASSISTANCE OF COUNSEL.  POWELL V. ALABAMA, SUPRA,
52, 58; HOUSE V. MAYO, 324 U.S. 42.  COMPARE EX PARTE HAWK, 321 U.S.
114; GLASSER V. UNITED STATES, 315 U.S. 60, 69-70.  WHEN THE STATE DOES
NOT PROVIDE CORRECTIVE JUDICIAL PROCESS, THE FEDERAL COURTS WILL
ENTERTAIN HABEAS CORPUS TO REDRESS THE VIOLATION OF THE FEDERAL
CONSTITUTIONAL RIGHT.  WHITE V. RAGEN, 324 U.S. 760.  WHEN THE
CORRECTIVE PROCESS IS PROVIDED BY THE STATE BUT ERROR, IN RELATION TO
THE FEDERAL QUESTION OF CONSTITUTIONAL VIOLATION, CREEPS INTO THE
RECORD, WE HAVE THE RESPONSIBILITY TO REVIEW THE STATE PROCEEDINGS. 
WILLIAMS V. KAISER, 323 U.S. 471; TOMKINS V. MISSOURI, SUPRA. 

PETITIONER, A LAYMAN, SET OUT THE FOLLOWING ALLEGATIONS IN HIS
PETITION.  ON MARCH 16, 1936, AT 4:15 P.M., THE PETITIONER, WHO HAD
PREVIOUSLY HAD A PRELIMINARY HEARING, WAS BROUGHT TO OMAHA FROM THE
FEDERAL PENITENTIARY AT LEAVENWORTH, KANSAS.  HE WAS HELD INCOMMUNICADO
IN THE OMAHA JAIL EXCEPT FOR A VISIT OF FIFTEEN MINUTES THAT EVENING,
11 TO 11:15 P.M., BY THE PUBLIC DEFENDER AND HIS ASSISTANT.  THESE
OFFICIALS TRIED TO INTIMIDATE THE PETITIONER TO PLEAD GUILTY.  THIS
PETITIONER REFUSED TO DO, "...  AT WHICH TIME THE TWO PUBLIC OFFICIALS
LEFT YOUR PETITIONER AND AT THE TIME SAID THEY WOULD HAVE NOTHING TO DO
WITH PETITIONER'S TRIAL SCHEDULED FOR TRIAL THE FOLLOWING MORNING." 
THE NEXT DAY PETITIONER WAS ARRAIGNED AND WAS READ AN INFORMATION
CHARGING THE MURDER TO WHICH HE PLEADED "NOT GUILTY,"  FN5  AND
"FORTHWITH MOVED THE TRIAL COURT ORALLY FOR A CONTINUANCE OF TWENTY
FOUR (24) HOURS FOR THE PURPOSE OF CONSULTING COUNSEL, EXAMINE THE
CHARGE, SUBPOENA WITNESSES AND PREPARE A DEFENSE, AND FORTHWITH THE
TRIAL COURT OVERRULED THE MOTION FOR A CONTINUANCE AND ORDERED THE
TRIAL TO PROCEED AT WHICH TIME THE CLERK OF THE COURT BEGAN TO IMPANEL
THE TRIAL JURY AND HAD CALLED TWO OR THREE JURYMEN, WHEN JOSEPH M.
LOVELY, A PUBLIC OFFICIAL (PUBLIC DEFENDER) AND JOHN N. BALDWIN, HIS
ASSISTANT STEPPED FORWARD AND ENTERED THE CASE, WITHOUT EVER HAVING
CONSULTED YOUR PETITIONER, AND WITHOUT EVER HAVING BEEN ASSIGNED BY THE
TRIAL COURT TO REPRESENT YOUR PETITIONER. 

"YOUR PETITIONER HAD NO CONSULTATION WHATSOEVER WITH EITHER OF THE
AFORESAID PUBLIC OFFICIALS REGARDING HIS DEFENSE, THEY PICKED THE JURY
AND TESTIMONY WAS ADDUCED AND A CONTINUANCE OR RECESS TAKEN UNTIL THE
FOLLOWING MORNING MARCH 18(WEDNESDAY), 1936."  PETITIONER CLAIMED THE
PROTECTION OF THE FOURTEENTH AMENDMENT.  THE RECORD IS EITHER SILENT ON
OR NOT INCONSISTENT WITH ANYTHING MATERIAL IN THESE ALLEGATIONS.  CF.
TOMKINS V. MISSOURI, 323 U.S. 485, 487.  THERE IS NO ALLEGATION OR
SUGGESTION OF IGNORANCE OF OR UNFAMILIARITY WITH PROCEDURAL OR
SUBSTANTIVE LAW OR SUB-NORMAL MENTALITY. 

THESE FACTS, IF TRUE, WE THINK, SET OUT A VIOLATION OF THE FOURTEENTH
AMENDMENT.  THEY ARE NOT CONCLUSIONS OF LAW.  THEY ARE NOT TOO VAGUE. 
THE CHARGE UPON WHICH PETITIONER WAS CONVICTED WAS MURDER IN THE FIRST
DEGREE.  HE HAD NO ADVICE OF COUNSEL PRIOR TO THE CALLING OF THE JURY. 
HIS MOTION FOR CONTINUANCE TO EXAMINE THE CHARGE AND CONSULT COUNSEL
WAS MADE WITHOUT ASSISTANCE.  HOMICIDE HAS DEGREES IN NEBRASKA.  COMP.
STAT. NEB. 1929, SEC. 28-401 TO SEC. 28-403.  THERE ARE DIFFICULTIES IN
THE APPLICATION OF THE RULES.  IN RE APPLICATION OF COLE, 103 NEB. 802,
805, 174 N.W. 509; BOURNE V. STATE, 116 NEB. 141, 216 N.W. 173.  THE
DEFENDANT NEEDS COUNSEL AND COUNSEL NEEDS TIME.  CF. TOMKINS V.
MISSOURI, 323 U.S. 485, 488. 

AS THE SUPREME COURT OF NEBRASKA CONSIDERED THE MOTION FOR
CONTINUANCE ON THE MERITS,  FN6  NO QUESTION OF STATE PROCEDURE FOR THE
REEXAMINATION OF CRIMINAL CONVICTIONS ARISES.  AS TO THE ISSUE ON THE
MOTION FOR CONTINUANCE, OUR DUTY REQUIRES US TO DETERMINE ONLY WHETHER
OR NOT THE DENIAL UNDER THE FACTS ALLEGED VIOLATES DUE PROCESS.  WE
THINK THERE WAS AN ALLEGATION THAT NO EFFECTIVE ASSISTANCE OF COUNSEL
WAS FURNISHED IN THE CRITICAL TIME BETWEEN THE PLEA OF NOT GUILTY AND
THE CALLING OF THE JURY.  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.  WE HOLD THAT DENIAL OF OPPORTUNITY TO
CONSULT WITH COUNSEL ON ANY MATERIAL STEP AFTER INDICTMENT OR SIMILAR
CHARGE AND ARRAIGNMENT VIOLATES THE FOURTEENTH AMENDMENT. 

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.  THIS, OF COURSE,
DOES NOT MEAN THAT UNCONTRADICTED EVIDENCE OF A WITNESS MUST BE
ACCEPTED AS TRUE ON THE HEARING.  CREDIBILITY IS FOR THE TRIER OF
FACTS.  THE EVIDENCE MAY SHOW THAT THE CHARGE WAS SERVED UPON
PETITIONER WELL IN ADVANCE OF THE TRIAL (SEE NOTE 5, SUPRA) AND THAT HE
HAD AMPLE OPPORTUNITY TO CONSULT WITH COUNSEL AND SECURE ANY NEEDED
WITNESSES.  HE MAY HAVE INTELLIGENTLY WAIVED HIS CONSTITUTIONAL
RIGHTS.  ADAMS V. U.S. EX REL. MCCANN, 317 U.S. 269, 275. 

PETITIONER CARRIES THE BURDEN IN A COLLATERAL ATTACK ON A JUDGMENT. 
FN7  HE MUST PROVE HIS ALLEGATIONS BUT HE IS ENTITLED TO AN
OPPORTUNITY.  REVERSED AND REMANDED. 

FN1  THE OPINION OF THE SUPREME COURT OF NEBRASKA DOES NOT DEAL WITH
AN ALTERNATE GROUND OF THE DISTRICT COURT JUDGMENT.  THIS WAS THAT
PREVIOUS PETITIONS FOR HABEAS CORPUS HAD "FULLY AND FINALLY
ADJUDICATED" THE PRESENT ISSUES.  COMPARE SALINGER V. LOISEL, 265 U.S.
224, 230; EX PARTE HAWK, 321 U.S. 114, 118.  WE DO NOT CONSIDER THIS
ISSUE. 

THE FOLLOWING REPORTED CASES SHOW THE EFFORTS OF PETITIONER TO SECURE
RELEASE.  THERE ARE OTHER PROCEEDINGS NOT REPORTED.  HAWK V. O'GRADY,
137 NEB. 639, 290 N.W. 911(APPEAL FROM DENIAL OF WRIT IN STATE DISTRICT
COURT), CERT. DEN.  311 U.S. 645; HAWK V. OLSON, 130 F.2D 910(APPEAL
FROM DENIAL OF WRIT IN DISTRICT COURT), CERT. DEN.  317 U.S. 697; 318
U.S. 746(ORIGINAL); 321 U.S. 114(ORIGINAL). 

FN2  LACK OF COUNSEL AND WRONGFUL WITHHOLDING BY JUDICIAL OFFICERS OF
THE NECESSARY RECORD FORM THE SUBSTANCE OF THIS CLAIM.  THE OPINION OF
THE SUPREME COURT OF NEBRASKA DISPOSES OF THIS BY POINTING OUT THAT
PETITIONER NEVER ALLEGED A REQUEST TO THE PUBLIC DEFENDER FOR
ASSISTANCE ON APPEAL AND THAT A MANDAMUS (FOR THE RECORD) WAS DENIED. 
WE ASSUME THE DENIAL WAS PROPER AS PETITIONER MAKES NO COMPLAINT AS TO
IT.  ON THE PRESENT RECORD THE FAILURE TO SEEK REVIEW FROM THE
CONVICTION WAS WITHOUT EXCUSE.  16 N.W.2D 181, 184. 

FN3  THIS STATUTE WAS REENACTED AS R.S. SECS. 752-761.  THE PROVISION
NOW APPEARS IN 28 U.S.C. SEC. 453: 

"THE WRIT OF HABEAS CORPUS SHALL IN NO CASE EXTEND TO A PRISONER IN
JAIL UNLESS WHERE HE IS ...  IN CUSTODY IN VIOLATION OF THE
CONSTITUTION OR OF A LAW OR TREATY OF THE UNITED STATES  ..." 

THE SECTION HAD ITS ORIGIN IN A BILL (NO. 605) REPORTED BY THE
JUDICIARY COMMITTEE OF THE HOUSE IN RESPONSE TO A RESOLUTION DIRECTING
THAT COMMITTEE TO INQUIRE AND REPORT TO THE HOUSE BY BILL OR OTHERWISE
"WHAT LEGISLATION IS NECESSARY TO ENABLE THE COURTS OF THE UNITED
STATES  ...  TO ENFORCE THE LIBERTY OF ALL PERSONS UNDER THE OPERATION
OF THE CONSTITUTIONAL AMENDMENT ABOLISHING SLAVERY."  SEE CONG. GLOBE,
39TH CONG., 1ST SESS., 87, 4151.  THE DEBATES ON THE BILL IN THE HOUSE
AND SENATE, WHILE MOSTLY CONCERNED WITH INCIDENTAL MATTERS, INDICATED
THAT JURISDICTION TO ISSUE THE WRIT OF HABEAS CORPUS WAS NOT INTENDED
TO BE LIMITED MERELY TO VIOLATIONS OF THE THIRTEENTH AMENDMENT.  SEE
CONG. GLOBE, 39TH CONG., 1ST SESS., 4150, 4151, 4229; CONG. GLOBE, 39TH
CONG., 2D SESS., 730, 790.    FN4  SEE EX PARTE WATKINS, 3 PET. 193,
202, CITED IN THE FRANK CASE, AND 4 BACON'S ABRIDGEMENT 563, ET SEQ.,
JOHNSON EDITION 1856; XIV VINER'S ABRIDGMENT, (2D ED.), 212(D) AND
217(F)(2).    FN5  PETITIONER DOES NOT ALLEGE WHETHER OR NOT HE HAD
PREVIOUSLY RECEIVED A COPY OF THE CHARGE IN CONFORMITY WITH THE
REQUIREMENT OF REVISED STATUTES OF NEBRASKA SEC. 29-1802 WHICH PROVIDES
THAT, "WITHIN TWENTY-FOUR HOURS AFTER THE FILING OF AN INDICTMENT FOR
FELONY, AND IN EVERY OTHER CASE ON REQUEST, THE CLERK SHALL MAKE AND
DELIVER TO THE SHERIFF, THE DEFENDANT OR HIS COUNSEL A COPY OF THE
INDICTMENT, AND THE SHERIFF ON RECEIVING SUCH COPY SHALL SERVE THE SAME
UPON THE DEFENDANT.  NO ONE SHALL BE, WITHOUT HIS ASSENT, ARRAIGNED OR
CALLED ON TO ANSWER TO ANY INDICTMENT UNTIL ONE DAY SHALL HAVE ELAPSED,
AFTER RECEIVING IN PERSON OR BY COUNSEL, OR HAVING AN OPPORTUNITY TO
RECEIVE A COPY OF SUCH INDICTMENT AS AFORESAID."  SECTION 29-1604 MAKES
THIS SECTION APPLICABLE TO AN INFORMATION. 

FN6  HAWK V. OLSON, 16 N.W.2D 181, 184. 

FN7  JOHNSON V. ZERBST, 304 U.S. 458, 468; WALKER V. JOHNSTON, 312
U.S. 275, 286; WILLIAMS V. KAISER, 323 U.S. 471, 474. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





BETTER BUSINESS BUREAU V. U.S., 326 U.S. 279 


NO. 52.  ARGUED OCTOBER 19, 1945.  - DECIDED NOVEMBER 13, 1945.  - 79
U.S. APP. D.C. 380, 148 F.2D 14, AFFIRMED. 


1.  A BETTER BUSINESS BUREAU, AN IMPORTANT IF NOT THE PRIMARY OBJECT
OF WHICH IS TO PROMOTE NOT ONLY AN ETHICAL BUT ALSO A PROFITABLE
BUSINESS COMMUNITY, HELD NOT EXEMPT FROM SOCIAL SECURITY TAXES AS A
CORPORATION "ORGANIZED AND OPERATED EXCLUSIVELY FOR SCIENTIFIC OR
EDUCATIONAL PURPOSES," WITHIN THE MEANING OF SEC. 811(B)(8) OF THE
SOCIAL SECURITY ACT.  P. 282. 

THIS CONCLUSION IS SUPPORTED BY THE LEGISLATIVE HISTORY OF SEC.
811(B)(8) OF THE SOCIAL SECURITY ACT AND BY APPLICABLE ADMINISTRATIVE
REGULATIONS. 

2.  LIBERAL CONSTRUCTION OF A STATUTE DOES NOT MEAN THAT WORDS AND
PHRASES MAY BE GIVEN UNUSUAL OR TORTURED MEANINGS UNJUSTIFIED BY
LEGISLATIVE INTENT, OR THAT EXPRESS LIMITATIONS ON EXEMPTIONS MAY BE
IGNORED.  P. 283. 

BETTER BUSINESS BUREAU OF WASHINGTON, D.C., INC. V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 325 U.S. 844, TO REVIEW A JUDGMENT WHICH AFFIRMED A
SUMMARY JUDGMENT FOR THE UNITED STATES IN A SUIT FOR A REFUND OF SOCIAL
SECURITY TAXES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

HERE OUR CONSIDERATION IS DIRECTED TO THE QUESTION OF WHETHER THE
PETITIONER, THE BETTER BUSINESS BUREAU OF WASHINGTON, D.C., INC., IS
EXEMPT FROM SOCIAL SECURITY TAXES AS A CORPORATION ORGANIZED AND
OPERATED EXCLUSIVELY FOR SCIENTIFIC OR EDUCATIONAL PURPOSES WITHIN THE
MEANING OF SECTION 811(B)(8) OF THE SOCIAL SECURITY ACT.  FN1 

FROM THE STIPULATED STATEMENT OF FACTS IT APPEARS THAT PETITIONER WAS
ORGANIZED IN 1920 AS A NON-PROFIT CORPORATION UNDER THE LAWS OF THE
DISTRICT OF COLUMBIA.  IT HAS NO SHARES OF STOCK AND NO PART OF ITS
EARNINGS INURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER OR
INDIVIDUAL.  ITS OFFICERS ARE ELECTED ANNUALLY FROM ITS MEMBERSHIP;
THEY HAVE MERELY NOMINAL DUTIES AND ARE PAID NO SALARY.  ONLY THE
MANAGING DIRECTOR AND A SMALL NUMBER OF EMPLOYEES ARE PAID.  MEMBERSHIP
IS OPEN TO "ANY PERSON, FIRM, CORPORATION OR ASSOCIATION INTERESTED IN
BETTER BUSINESS ETHICS" AS MAY BE ELECTED BY THE BOARD OF TRUSTEES AND
PAY "VOLUNTARY SUBSCRIPTIONS" OR DUES. 

THE CHARTER OF PETITIONER STATES THAT "THE OBJECT FOR WHICH IT IS
FORMED IS FOR THE MUTUAL WELFARE, PROTECTION AND IMPROVEMENT OF
BUSINESS METHODS AMONG MERCHANTS AND OTHER PERSONS ENGAGED IN ANY AND
ALL BUSINESS OR PROFESSIONS AND OCCUPATIONS OF EVERY DESCRIPTION
WHATSOEVER THAT DEAL DIRECTLY OR INDIRECTLY WITH THE PUBLIC AT LARGE,
AND FOR THE EDUCATIONAL AND SCIENTIFIC ADVANCEMENTS OF BUSINESS METHODS
AMONG PERSONS, CORPORATIONS OR ASSOCIATIONS ENGAGED IN BUSINESS IN THE
DISTRICT OF COLUMBIA SO THAT THE PUBLIC CAN OBTAIN A PROPER, CLEAN,
HONEST AND FAIR TREATMENT IN ITS DEALINGS OR TRANSACTIONS WITH SUCH
MERCHANTS, TRADESMEN, CORPORATIONS, ASSOCIATIONS OR PERSONS FOLLOWING A
PROFESSION AND AT THE SAME TIME PROTECTING THE INTEREST OF THE LATTER
CLASSES OF BUSINESSES TO ENABLE SUCH AS ARE ENGAGED IN THE SAME TO
SUCCESSFULLY AND PROFITABLY CONDUCT THEIR BUSINESS AND FOR THE FURTHER
PURPOSES OF ENDEAVORING TO OBTAIN THE PROPER, JUST, FAIR AND EFFECTIVE
ENFORCEMENT OF THE ACT OF CONGRESS APPROVED MAY 29TH, 1916, OTHERWISE
KNOWN AS 'AN ACT TO PREVENT FRAUDULENT ADVERTISING IN THE DISTRICT OF
COLUMBIA.'" 

IN CARRYING OUT ITS CHARTER PROVISIONS, PETITIONER DIVIDES ITS WORK
ROUGHLY INTO FIVE SUBDIVISIONS: 

(1)  PREVENTION OF FRAUD BY INFORMING AND WARNING MEMBERS AND THE
GENERAL PUBLIC OF THE PLANS AND SCHEMES OF VARIOUS TYPES OF SWINDLERS. 

(2)  FIGHTING FRAUD BY BRINGING GENERAL AND ABSTRACT FRAUDULENT
PRACTICES TO THE ATTENTION OF THE PUBLIC. 

(3)  ELEVATION OF BUSINESS STANDARDS BY SHOWING AND CONVINCING
MERCHANTS THAT THE APPLICATION OF "THE DOCTRINE OF CAVEAT EMPTOR IS NOT
GOOD BUSINESS" AND BY SHOWING AND CONVINCING THEM THAT MISLEADING
ADVERTISING, EXTRAVAGANT CLAIMS AND PRICE COMPARISONS ARE NOT GOOD
BUSINESS. 

(4)  EDUCATION OF CONSUMERS TO BE INTELLIGENT BUYERS. 

(5)  COOPERATION WITH VARIOUS GOVERNMENTAL AGENCIES INTERESTED IN LAW
ENFORCEMENT. 

INFORMATION WHICH THE PETITIONER COMPILES IS AVAILABLE TO ANYONE
WITHOUT CHARGE AND IS COMMUNICATED TO THE MEMBERS AND THE PUBLIC BY
MEANS OF THE RADIO, NEWSPAPERS, BULLETINS, MEETINGS AND INTERVIEWS. 
THIS INFORMATION IS ALSO EXCHANGED WITH THE APPROXIMATELY EIGHTY-FIVE
OTHER BETTER BUSINESS BUREAUS IN THE UNITED STATES. 

AFTER PAYING THE SOCIAL SECURITY TAXES FOR THE CALENDAR YEARS 1937 TO
1941, INCLUSIVE, PETITIONER FILED CLAIMS FOR REFUNDS, WHICH WERE
DISALLOWED.  THIS SUIT TO RECOVER THE TAXES PAID WAS THEN FILED BY
PETITIONER IN THE DISTRICT COURT, WHICH GRANTED A MOTION FOR SUMMARY
JUDGMENT FOR THE UNITED STATES.  THE COURT BELOW AFFIRMED THE JUDGMENT,
79 U.S. APP. D.C. 380, 148 F.2D 14, AND WE GRANTED CERTIORARI, THE
TENTH CIRCUIT COURT OF APPEALS HAVING REACHED A CONTRARY RESULT IN
JONES V. BETTER BUSINESS BUREAU OF OKLAHOMA CITY, 123 F.2D 767. 

PETITIONER CLAIMS THAT IT QUALIFIES AS A CORPORATION "ORGANIZED AND
OPERATED EXCLUSIVELY FOR ...  SCIENTIFIC  ...  OR EDUCATIONAL PURPOSES
...  NO PART OF THE NET EARNINGS OF WHICH INURES TO THE BENEFIT OF ANY
PRIVATE SHAREHOLDER OR INDIVIDUAL" WITHIN THE MEANING OF SEC. 811(B)(8)
OF THE SOCIAL SECURITY ACT AND HENCE IS EXEMPT FROM PAYMENT OF SOCIAL
SECURITY TAXES.  NO SERIOUS ASSERTION IS MADE, HOWEVER, THAT PETITIONER
IS DEVOTED EXCLUSIVELY TO SCIENTIFIC PURPOSES.  THE BASIC CONTENTION IS
THAT ALL OF ITS PURPOSES AND ACTIVITIES ARE DIRECTED TOWARD THE
EDUCATION OF BUSINESS MEN AND THE GENERAL PUBLIC.  MERCHANTS ARE TAUGHT
TO CONDUCT THEIR BUSINESSES HONESTLY, WHILE CONSUMERS ARE TAUGHT TO
AVOID BEING VICTIMIZED AND TO PURCHASE GOODS INTELLIGENTLY.  WE JOIN
WITH THE COURTS BELOW IN REJECTING THIS CONTENTION. 

IT HAS BEEN URGED THAT A LIBERAL CONSTRUCTION SHOULD BE APPLIED TO
THIS EXEMPTION FROM TAXATION UNDER THE SOCIAL SECURITY ACT IN FAVOR OF
RELIGIOUS, CHARITABLE AND EDUCATIONAL INSTITUTIONS.  CF. TRINIDAD V.
SAGRADA ORDEN, 263 U.S. 578; HELVERING V. BLISS, 293 U.S. 144.  BUT IT
IS UNNECESSARY TO DECIDE THAT ISSUE HERE.  CF. HASSETT V. ASSOCIATED
HOSPITAL SERVICE CORP., 125 F.2D 611(C.C.A. 1).  EVEN THE MOST LIBERAL
OF CONSTRUCTIONS DOES NOT MEAN THAT STATUTORY WORDS AND PHRASES ARE TO
BE GIVEN UNUSUAL OR TORTURED MEANINGS UNJUSTIFIED BY LEGISLATIVE INTENT
OR THAT EXPRESS LIMITATIONS ON SUCH AN EXEMPTION ARE TO BE IGNORED. 
PETITIONER'S CONTENTION, HOWEVER, DEMANDS PRECISELY THAT TYPE OF
STATUTORY TREATMENT.  HENCE IT CANNOT PREVAIL. 

IN THIS INSTANCE, IN ORDER TO FALL WITHIN THE CLAIMED EXEMPTION, AN
ORGANIZATION MUST BE DEVOTED TO EDUCATIONAL PURPOSES EXCLUSIVELY.  THIS
PLAINLY MEANS THAT THE PRESENCE OF A SINGLE NONEDUCATIONAL PURPOSE, IF
SUBSTANTIAL IN NATURE, WILL DESTROY THE EXEMPTION REGARDLESS OF THE
NUMBER OR IMPORTANCE OF TRULY EDUCATIONAL PURPOSES.  IT THUS BECOMES
UNNECESSARY TO DETERMINE THE CORRECTNESS OF THE EDUCATIONAL
CHARACTERIZATION OF PETITIONER'S OPERATIONS, IT BEING APPARENT BEYOND
DISPUTE THAT AN IMPORTANT, IF NOT THE PRIMARY, PURSUIT OF PETITIONER'S
ORGANIZATION IS TO PROMOTE NOT ONLY AN ETHICAL BUT ALSO A PROFITABLE
BUSINESS COMMUNITY.  THE EXEMPTION IS THEREFORE UNAVAILABLE TO
PETITIONER. 

THE COMMERCIAL HUE PERMEATING PETITIONER'S ORGANIZATION IS REFLECTED
IN ITS CORPORATE TITLE AND IN THE CHARTER PROVISIONS DEDICATING
PETITIONER TO THE PROMOTION OF THE "MUTUAL WELFARE, PROTECTION AND
IMPROVEMENT OF BUSINESS METHODS AMONG MERCHANTS" AND OTHERS AND TO THE
SECURING OF THE "EDUCATIONAL AND SCIENTIFIC ADVANCEMENTS OF BUSINESS
METHODS" SO THAT MERCHANTS MIGHT "SUCCESSFULLY AND PROFITABLY CONDUCT
THEIR BUSINESS."  PETITIONER'S ACTIVITIES ARE LARGELY ANIMATED BY THIS
COMMERCIAL PURPOSE.  UNETHICAL BUSINESS PRACTICES AND FRAUDULENT
MERCHANDISING SCHEMES ARE INVESTIGATED, EXPOSED AND DESTROYED.  SUCH
EFFORTS TO CLEANSE THE BUSINESS SYSTEM OF DISHONEST PRACTICES ARE
HIGHLY COMMENDABLE AND MAY EVEN SERVE INCIDENTALLY TO EDUCATE CERTAIN
PERSONS.  BUT THEY ARE DIRECTED FUNDAMENTALLY TO ENDS OTHER THAN THAT
OF EDUCATION.  ANY CLAIM THAT EDUCATION IS THE SOLE AIM OF PETITIONER'S
ORGANIZATION IS THEREBY DESTROYED.  SEE BETTER BUSINESS BUREAU V.
DISTRICT UNEMPLOYMENT COMPENSATION BOARD, 34 A.2D 614(D.C. MUN. 
APP.). 

THE LEGISLATIVE HISTORY OF SEC. 811(B)(8) OF THE SOCIAL SECURITY ACT
CONFIRMS THE CONCLUSION THAT PETITIONER IS NOT EXEMPT UNDER THAT
THE INTERNAL REVENUE CODE, DEALING WITH EXEMPTIONS FOR INCOME
TAXATION.  AND CONGRESS HAS MADE IT CLEAR, FROM ITS COMMITTEE REPORTS,
THAT IT MEANT TO INCLUDE WITH SEC. 811(B)(8) ONLY THOSE ORGANIZATIONS
EXEMPT FROM THE INCOME TAX UNDER SEC. 101(6).  FN2 SIGNIFICANTLY,
HOWEVER, CONGRESS DID NOT WRITE INTO THE SOCIAL SECURITY ACT CERTAIN
OTHER EXEMPTIONS EMBODIED IN THE INCOME TAX PROVISIONS, ESPECIALLY THE
EXEMPTION IN SEC. 101(7) OF "BUSINESS LEAGUES, CHAMBERS OF COMMERCE,
REAL-ESTATE BOARDS, OR BOARDS OF TRADE."  PETITIONER CLOSELY RESEMBLES
SUCH ORGANIZATIONS AND HAS, INDEED, SECURED AN EXEMPTION FROM THE
INCOME TAX UNDER SEC. 101(7) AS A "BUSINESS LEAGUE."  FN3  THUS
CONGRESS HAS MADE, FOR INCOME TAX EXEMPTION PURPOSES, AN UNMISTAKABLE
DEMARCATION BETWEEN CORPORATIONS ORGANIZED AND OPERATED EXCLUSIVELY FOR
EDUCATIONAL PURPOSES AND THOSE ORGANIZATIONS IN THE NATURE OF BUSINESS
LEAGUES AND THE LIKE.  ITS MANIFEST DESIRE TO INCLUDE ONLY THE FORMER
WITHIN THE MEANING OF SEC. 811(B)(8) OF THE SOCIAL SECURITY ACT
PREVENTS US FROM CONSTRUING THE LANGUAGE OF THAT SECTION TO INCLUDE AN
ORGANIZATION LIKE PETITIONER. 

MOREOVER, IN AMENDING THE SOCIAL SECURITY ACT IN 1939, CONGRESS
CREATED CERTAIN NEW EXEMPTIONS BY PROVIDING, INTER ALIA, THAT AN
ORGANIZATION EXEMPT FROM INCOME TAXES UNDER ANY OF THE SUBDIVISIONS OF
SEC. 101 OF THE INTERNAL REVENUE CODE WAS ALSO EXEMPT FROM SOCIAL
SECURITY TAXES AS TO THOSE EMPLOYEES RECEIVING NO MORE THAN $45 IN A
CALENDAR QUARTER.  FN4  THE CONGRESSIONAL COMMITTEE REPORTS REFERRED
SPECIFICALLY TO "BUSINESS LEAGUES, CHAMBERS OF COMMERCE, REAL ESTATE
BOARDS, AND BOARDS OF TRADE" AS BEING INCLUDED AMONG THOSE
ORGANIZATIONS EXEMPT FROM INCOME TAXES AND AFFECTED BY THIS NEW PARTIAL
EXEMPTION FROM SOCIAL SECURITY TAXES.  FN5  THE INESCAPABLE INFERENCE
FROM THIS IS THAT SUCH ORGANIZATIONS, OF WHICH PETITIONER IS AN
EXAMPLE, REMAIN SUBJECT TO SOCIAL SECURITY TAXES AS TO HIGHER PAID
EMPLOYEES.  NO CONTENTION HAS BEEN MADE THAT ANY OF PETITIONER'S
EMPLOYEES ARE WITHIN THE LOW-PAID CATEGORY. 

FINALLY, A TREASURY REGULATION  FN6  DEFINING AN EDUCATIONAL
ORGANIZATION AS "ONE DESIGNED PRIMARILY FOR THE IMPROVEMENT OR
DEVELOPMENT OF THE CAPABILITIES OF THE INDIVIDUAL" FOR PURPOSES OF SEC.
101(6) OF THE INTERNAL REVENUE CODE WAS IN EFFECT AT THE TIME WHEN
CONGRESS USED THAT SECTION IN FRAMING SEC. 811(B)(8) OF THE SOCIAL
SECURITY ACT.  AN IDENTICAL DEFINITION HAS BEEN PROMULGATED UNDER SEC.
811(B)(8) AND PETITIONER ADMITTEDLY DOES NOT MEET ITS TERMS.  FN7
UNDER THE CIRCUMSTANCES THE ADMINISTRATIVE DEFINITION IS "HIGHLY
RELEVANT AND MATERIAL EVIDENCE OF THE PROBABLE GENERAL UNDERSTANDING OF
THE TIMES AND OF THE OPINIONS OF MEN WHO PROBABLY WERE ACTIVE IN THE
DRAFTING OF THE STATUTE."  WHITE V. WINCHESTER CLUB, 315 U.S. 32, 41. 
IT LENDS PERSUASIVE WEIGHT TO THE CONCLUSION WE HAVE REACHED. 

FOR THE FOREGOING REASONS THE JUDGMENT OF THE COURT BELOW IS
AFFIRMED. 

FN1  49 STAT. 620, 639, 42 U.S.C. SEC. 1011(B):  "THE TERM
'EMPLOYMENT' MEANS ANY SERVICE, OF WHATEVER NATURE, PERFORMED WITHIN
THE UNITED STATES BY AN EMPLOYEE FOR HIS EMPLOYER, EXCEPT - 

     .         .         .         .         . 

"(8)  SERVICE PERFORMED IN THE EMPLOY OF A CORPORATION, COMMUNITY
CHEST, FUND, OR FOUNDATION, ORGANIZED AND OPERATED EXCLUSIVELY FOR
RELIGIOUS, CHARITABLE, SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES,
OR FOR THE PREVENTION OF CRUELTY TO CHILDREN OR ANIMALS, NO PART OF THE
NET EARNINGS OF WHICH INURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER
OR INDIVIDUAL." 

AN AMENDMENT TO THIS DEFINITION, NOT HERE RELEVANT, WAS ADDED IN
1939.  THE ENTIRE DEFINITION HAS BEEN INCORPORATED INTO SEC. 1426(B)(8)
OF THE INTERNAL REVENUE CODE. 

FN2  "THE ORGANIZATIONS WHICH WILL BE EXEMPT FROM SUCH (SOCIAL
SECURITY) TAXES ARE CHURCHES, SCHOOLS, COLLEGES, AND OTHER EDUCATIONAL
INSTITUTIONS NOT OPERATED FOR PRIVATE PROFIT, THE Y.M.C.A., THE
Y.W.C.A., THE Y.M.H.A., THE SALVATION ARMY, AND OTHER ORGANIZATIONS
WHICH ARE EXEMPT FROM INCOME TAX UNDER SECTION 101(6) OF THE REVENUE
ACT OF 1932."  H. REP. NO. 615(74TH CONG., 1ST SESS.) P. 33; S. REP.
NO. 628(74TH CONG., 1ST SESS.) P. 45. 

FN3  PETITIONER STATES THAT IT WAS INCORPORATED UNDER THE PROVISION
OF THE DISTRICT OF COLUMBIA CODE RELATING TO EDUCATIONAL AND SCIENTIFIC
INSTITUTIONS AND IT ASSERTS THAT IF IT WERE ANOTHER TYPE OF INSTITUTION
IT WOULD HAVE BEEN REQUIRED TO INCORPORATE UNDER SOME OTHER CODE
PROVISION.  BUT PETITIONER'S CLASSIFICATION FOR INCORPORATION PURPOSES
HAS NO MORE RELEVANCE FOR PURPOSES OF EXEMPTION FROM SOCIAL SECURITY
TAXES THAN IT HAS FOR PURPOSES OF INCOME TAX EXEMPTION, AS TO WHICH
PETITIONER HAS BEEN CLASSIFIED AS A BUSINESS LEAGUE RATHER THAN AS AN
EDUCATIONAL OR SCIENTIFIC INSTITUTION. 

FN4  53 STAT. 1360, 1374, 1384; 42 U.S.C. SEC. 409(B)(10), 26 U.S.C.
SEC. 1426(B)(10). 

FN5  H. REP. NO. 728(76TH CONG., 1ST SESS.) PP. 47-48; S. REP. NO.
734(76TH CONG., 1ST SESS.) P. 57.  EDUCATIONAL INSTITUTIONS OF THE TYPE
ALREADY EXEMPT UNDER SEC. 811(B)(8) WERE NOT MENTIONED IN THIS
RESPECT. 

FN6  ARTICLE 101(6)-1 OF TREASURY REGULATIONS 86. 

FN7  ARTICLE 12 OF TREASURY REGULATIONS 91; SEC. 402.215 OF TREASURY
REGULATIONS 106.  THE DEFINITION FURTHER STATES THAT "UNDER EXCEPTIONAL
CIRCUMSTANCES" AN EDUCATIONAL ORGANIZATION "MAY INCLUDE AN ASSOCIATION
WHOSE SOLE PURPOSE IS THE INSTRUCTION OF THE PUBLIC, OR AN ASSOCIATION
WHOSE PRIMARY PURPOSE IS TO GIVE LECTURES ON SUBJECTS USEFUL TO THE
INDIVIDUAL AND BENEFICIAL TO THE COMMUNITY, EVEN THOUGH AN ASSOCIATION
OF EITHER CLASS HAS INCIDENTAL AMUSEMENT FEATURES."  NO "EXCEPTIONAL
CIRCUMSTANCES" ARE APPARENT IN PETITIONER'S CASE AND, MOREOVER, NEITHER
EXCEPTIONAL CATEGORY FITS THE PETITIONER.    MR. JUSTICE JACKSON TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :








BOEHM V. COMMISSIONER, 326 U.S. 287 


NO. 69.  ARGUED OCTOBER 19, 1945.  - DECIDED NOVEMBER 13, 1945.  - 146
F.2D 553, AFFIRMED. 


1.  TREASURY REGULATIONS LONG CONTINUED WITHOUT SUBSTANTIAL CHANGE,
APPLYING TO UNAMENDED OR SUBSTANTIALLY REENACTED STATUTES, ARE DEEMED
TO HAVE RECEIVED CONGRESSIONAL APPROVAL AND HAVE THE EFFECT OF LAW.  P.
291. 

2.  TO BE DEDUCTIBLE IN COMPUTING INCOME TAX UNDER SEC. 23(E) OF THE
REVENUE ACT OF 1936, A LOSS MUST HAVE BEEN SUSTAINED IN FACT DURING THE
TAXABLE YEAR.  P. 292. 

3.  THE DETERMINATION OF WHETHER UNDER SEC. 23(E) A LOSS WAS
SUSTAINED IN A PARTICULAR TAX YEAR REQUIRES CONSIDERATION OF ALL
PERTINENT FACTS AND CIRCUMSTANCES, REGARDLESS OF THEIR OBJECTIVE OR
SUBJECTIVE NATURE.  P. 292. 

THE TAXPAYER'S ATTITUDE AND CONDUCT, THOUGH NOT TO BE IGNORED, ARE
NOT DECISIVE.  P. 293. 

4.  WHETHER, WITHIN THE MEANING OF SEC. 23(E), PARTICULAR CORPORATE
STOCK BECAME WORTHLESS DURING A GIVEN TAXABLE YEAR IS PURELY A QUESTION
OF FACT TO BE DETERMINED IN THE FIRST INSTANCE BY THE TAX COURT; AND
THE CIRCUMSTANCE THAT THE FACTS MAY BE STIPULATED OR UNDISPUTED DOES
NOT MAKE THIS ISSUE ANY THE LESS FACTUAL IN NATURE.  P. 293. 

5.  A DECISION OF THE TAX COURT WHICH IS "IN ACCORDANCE WITH LAW" MAY
NOT BE SET ASIDE ON REVIEW, EVEN THOUGH DIFFERENT INFERENCES AND
CONCLUSIONS MIGHT FAIRLY HAVE BEEN DRAWN FROM THE UNDISPUTED FACTS.  P.
293. 

6.  THE TAXPAYER HAS THE BURDEN OF ESTABLISHING THAT A CLAIMED
DEDUCTIBLE LOSS WAS SUSTAINED IN THE TAXABLE YEAR.  P. 294. 

7.  UPON THE STIPULATED FACTS OF THIS CASE, THE TAX COURT'S
CONCLUSION THAT THE CORPORATE STOCK IN QUESTION DID NOT BECOME
WORTHLESS IN 1937, AND THAT THE TAXPAYER THEREFORE SUSTAINED NO
DEDUCTIBLE LOSS IN THAT YEAR, IS SUSTAINED.  P. 294. 

8.  REMEDYING HARSHNESS IN THE OPERATION OF A REVENUE ACT IS FOR
CONGRESS, NOT THE COURTS.  P. 295. 

BOEHM V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 325 U.S. 847, TO REVIEW A JUDGMENT AFFIRMING IN PART A
DECISION OF THE TAX COURT WHICH SUSTAINED THE COMMISSIONER'S
DETERMINATION OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE MET HERE WITH THE PROBLEM OF WHETHER THE TAX COURT PROPERLY
FOUND THAT CERTAIN CORPORATE STOCK DID NOT BECOME WORTHLESS IN 1937,
THEREBY PRECLUDING THE PETITIONING TAXPAYER FROM CLAIMING A DEDUCTIBLE
LOSS IN THAT YEAR UNDER SEC. 23(E) OF THE REVENUE ACT OF 1936.  FN1 

THE FACTS, WHICH ARE STIPULATED, SHOW THAT THE TAXPAYER IN 1929
BOUGHT 1,100 SHARES OF CLASS A STOCK OF THE HARTMAN CORPORATION FOR
$32,440.  THIS CORPORATION HAD BEEN FORMED TO ACQUIRE THE CAPITAL STOCK
OF AN ILLINOIS CORPORATION, AND ITS AFFILIATES, ENGAGED IN THE BUSINESS
OF SELLING FURNITURE, CARPETS AND HOUSEHOLD GOODS. 

IN APRIL, 1932, THE HARTMAN CORPORATION SENT ITS STOCKHOLDERS A
LETTER REPORTING THAT THE CURRENT BUSINESS DEPRESSION HAD CAUSED
SHRINKAGE OF SALES, DECLINE IN WORTH OF ASSETS  FN2  AND UNPRECEDENTED
CREDIT AND CORPORATE LOSSES.  ANOTHER LETTER SENT THE FOLLOWING MONTH
INFORMED THEM THAT BUSINESS HAD NOT SHOWN ANY IMPROVEMENT ALTHOUGH
COUNTERACTING MEASURES WERE BEING TAKEN.  THEN ON JUNE 16, 1932, A
FEDERAL COURT IN ILLINOIS APPOINTED EQUITY RECEIVERS UPON THE
ALLEGATIONS OF A CREDITOR, WHICH WERE ADMITTED TO BE TRUE BY THE
HARTMAN CORPORATION, THAT THE COMPANY HAD SUSTAINED LARGE LIQUIDATING
AND OPERATING LOSSES FROM 1930 TO 1932.  FN3 

SUBSEQUENTLY, ON DECEMBER 16, 1932, A STOCKHOLDERS' DERIVATIVE
ACTION, THE SO-CALLED GRAHAM SUIT, WAS INSTITUTED IN A NEW YORK COURT
AGAINST THE HARTMAN CORPORATION AND NINE MEMBERS OF ITS BOARD OF
DIRECTORS, SOME OF WHOM WERE ALSO OFFICERS.  THIS SUIT WAS BROUGHT BY
THE TAXPAYER AND EIGHT OTHERS ON BEHALF OF THEMSELVES AS STOCKHOLDERS
FN4  AND ON BEHALF OF THE CORPORATION AND ALL OTHER STOCKHOLDERS WHO
MIGHT JOIN WITH THEM IN THE SUIT.  THE DEFENDANTS WERE CHARGED WITH
WASTE, EXTRAVAGANCE, MISMANAGEMENT, NEGLECT AND FRAUDULENT VIOLATION OF
THEIR DUTIES AS OFFICERS AND DIRECTORS, "TO THE GREAT DAMAGE, LOSS AND
PREJUDICE OF THE CORPORATION AND ITS STOCKHOLDERS."  THE PLAINTIFFS
SOUGHT (1) TO COMPEL THE DEFENDANTS TO ACCOUNT TO THE CORPORATION FOR
THEIR OFFICIAL CONDUCT, (2) TO COMPEL THE DEFENDANTS TO PAY TO THE
CORPORATION'S TREASURY THE AMOUNT OF LOSS RESULTING FROM THEIR ALLEGED
WRONGFUL ACTS, (3) TO SECURE FROM THE CORPORATION SUITABLE ALLOWANCE
FOR COUNSEL FEES AND OTHER COSTS INCURRED IN THE SUIT AND (4) TO SECURE
SUCH OTHER RELIEF AS MIGHT BE JUST, EQUITABLE AND PROPER. 

THE HARTMAN CORPORATION CEASED OPERATIONS UNDER THE RECEIVERS ON MAY
26, 1933, WHEN A NEW COMPANY, HARTMAN'S INC., BOUGHT AT A BANKRUPTCY
SALE ALL OF THE ASSETS OF HARTMAN CORPORATION'S SUBSIDIARY COMPANY FOR
$501,000.  THE STOCK OF THE NEW COMPANY WAS ISSUED TO THE SUBSIDIARY'S
CREDITORS.  STOCKHOLDERS OF HARTMAN CORPORATION WERE ALSO GIVEN THE
RIGHT TO SUBSCRIBE TO THE STOCK AND DEBENTURES OF THE NEW COMPANY, BUT
THE TAXPAYER DID NOT EXERCISE THAT RIGHT. 

THE RECEIVERS FILED THEIR FIRST REPORT IN THE FEDERAL COURT ON AUGUST
10, 1934, IN WHICH IT APPEARED THAT HARTMAN CORPORATION HAD OUTSTANDING
CLAIMS OF $707,430.67 AND ASSETS OF ONLY $30,593.13 IN CASH AND THE
PENDING GRAHAM SUIT.  IT DOES NOT APPEAR WHETHER THE SUIT WAS LISTED AS
HAVING ANY VALUE.  THE IDENTICAL SITUATION WAS APPARENT IN THE SECOND
REPORT, FILED ON JULY 11, 1935, EXCEPT THAT THE CASH ASSETS HAD FALLEN
TO $27,192.51.  A 4% DIVIDEND TO CREDITORS WAS ALSO APPROVED AT THAT
TIME.  ON SEPTEMBER 30, 1937, THE FINAL REPORT WAS MADE.  OUTSTANDING
CLAIMS OF $630,574.57 WERE THEN REPORTED; THE SOLE ASSET WAS CASH IN
THE AMOUNT OF $1,909.94, WHICH WAS THEN DISTRIBUTED TO CREDITORS AFTER
DEDUCTION OF RECEIVERSHIP COSTS. 

IN THE MEANTIME THE GRAHAM SUIT WAS SLOWLY PROGRESSING.  FROM 1933 TO
1936, INCLUSIVE, EXTENSIVE EXAMINATIONS WERE MADE OF CERTAIN
DEFENDANTS, THE PLAINTIFFS EXPENDING SOME $2,800 IN CONNECTION
THEREWITH EXCLUSIVE OF COUNSEL FEES.  BUT THE CASE NEVER REACHED
TRIAL.  ON FEBRUARY 27, 1937, A SETTLEMENT WAS CONSUMMATED WHEREBY THE
DEFENDANTS PAID THE TAXPAYER AND HER EIGHT CO-PLAINTIFFS THE SUM OF
$50,000 IN FULL SETTLEMENT AND DISCHARGE OF THEIR CLAIMS AND THE CAUSE
OF ACTION.  THE TAXPAYER'S SHARE OF THE SETTLEMENT, AFTER PAYMENT OF
EXPENSES, AMOUNTED TO $12,500. 

THE TAXPAYER HAD TRIED UNSUCCESSFULLY IN HER 1934 INCOME TAX RETURN
TO CLAIM A DEDUCTION FROM GROSS INCOME IN THE AMOUNT OF $32,302 AS A
LOSS DUE TO THE WORTHLESSNESS OF HER 1,100 SHARES OF STOCK.  THE
COMMISSIONER DENIED THE DEDUCTION ON THE GROUND THAT THE STOCK HAD NOT
BECOME WORTHLESS DURING 1934; APPARENTLY NO APPEAL WAS TAKEN FROM THIS
DETERMINATION.  THEN IN 1937 THE TAXPAYER CLAIMED A DEDUCTION FROM
GROSS INCOME IN THE AMOUNT OF $19,940, BEING THE DIFFERENCE BETWEEN THE
$32,440 PURCHASE PRICE OF THE STOCK AND THE $12,500 RECEIVED PURSUANT
TO THE SETTLEMENT.  THE COMMISSIONER AGAIN DENIED THE DEDUCTION, THIS
TIME ON THE GROUND THAT THE STOCK HAD NOT BECOME WORTHLESS DURING
1937.  THE TAX COURT SUSTAINED HIS ACTION AND THE COURT BELOW AFFIRMED
AS TO THIS POINT.  FN5  146 F.2D 553.  WE GRANTED CERTIORARI BECAUSE OF
AN ALLEGED INCONSISTENCY WITH SMITH V. HELVERING, 78 U.S. APP. D.C.
342, 141 F.2D 529, AS TO THE PROPER TEST TO BE USED IN DETERMINING THE
YEAR IN WHICH A DEDUCTIBLE LOSS IS SUSTAINED. 

COUNTERPARTS IN MANY PRECEDING REVENUE ACTS, PROVIDES THAT IN COMPUTING
NET INCOME FOR INCOME TAX PURPOSES THERE SHALL BE ALLOWED AS DEDUCTIONS
"LOSSES SUSTAINED DURING THE TAXABLE YEAR AND NOT COMPENSATED FOR BY
INSURANCE OR OTHERWISE."  TREASURY REGULATIONS, IN EFFECT PRIOR TO AND
AT THE TIME OF THE ADOPTION OF THE 1936 ACT AND REPEATED THEREAFTER,
HAVE CONSISTENTLY INTERPRETED SEC. 23(E) TO MEAN THAT DEDUCTIBLE LOSSES
"MUST BE EVIDENCED BY CLOSED AND COMPLETED TRANSACTIONS, FIXED BY
IDENTIFIABLE EVENTS, BONA FIDE AND ACTUALLY SUSTAINED DURING THE
TAXABLE PERIOD FOR WHICH ALLOWED."  FN6  SUCH REGULATIONS, BEING "LONG
CONTINUED WITHOUT SUBSTANTIAL CHANGE, APPLYING TO UNAMENDED OR
SUBSTANTIALLY REENACTED STATUTES, ARE DEEMED TO HAVE RECEIVED
CONGRESSIONAL APPROVAL AND HAVE THE EFFECT OF LAW."  HELVERING V.
WINMILL, 305 U.S. 79, 83. 

FIRST.  THE TAXPAYER CLAIMS THAT A SUBJECTIVE RATHER THAN AN
OBJECTIVE TEST IS TO BE EMPLOYED IN DETERMINING WHETHER CORPORATE STOCK
BECAME WORTHLESS DURING A PARTICULAR YEAR WITHIN THE MEANING OF SEC.
23(E).  THIS SUBJECTIVE TEST IS SAID TO DEPEND UPON THE TAXPAYER'S
REASONABLE AND HONEST BELIEF AS TO WORTHLESSNESS, SUPPORTED BY THE
TAXPAYER'S OVERT ACTS AND CONDUCT IN CONNECTION THEREWITH. 

BUT THE PLAIN LANGUAGE OF THE STATUTE AND OF THE TREASURY
INTERPRETATIONS HAVING THE FORCE OF LAW REPELS THE USE OF SUCH A
SUBJECTIVE FACTOR AS THE CONTROLLING OR SOLE CRITERION.  SECTION 23(E)
ITSELF SPEAKS OF LOSSES "SUSTAINED DURING THE TAXABLE YEAR."  THE
REGULATIONS IN TURN REFER TO LOSSES "ACTUALLY SUSTAINED DURING THE
TAXABLE PERIOD," AS FIXED BY "IDENTIFIABLE EVENTS."  FN7 SUCH
UNMISTAKABLE PHRASEOLOGY COMPELS THE CONCLUSION THAT A LOSS, TO BE
DEDUCTIBLE UNDER SEC. 23(E), MUST HAVE BEEN SUSTAINED IN FACT DURING
THE TAXABLE YEAR.  AND A DETERMINATION OF WHETHER A LOSS WAS IN FACT
SUSTAINED IN A PARTICULAR YEAR CANNOT FAIRLY BE MADE BY CONFINING THE
TRIER OF FACTS TO AN EXAMINATION OF THE TAXPAYER'S BELIEFS AND
ACTIONS.  SUCH AN ISSUE OF NECESSITY REQUIRES A PRACTICAL APPROACH, ALL
PERTINENT FACTS AND CIRCUMSTANCES BEING OPEN TO INSPECTION AND
CONSIDERATION REGARDLESS OF THEIR OBJECTIVE OR SUBJECTIVE NATURE.  AS
THIS COURT SAID IN LUCAS V. AMERICAN CODE CO., 280 U.S. 445, 449, "NO
DEFINITE LEGAL TEST IS PROVIDED BY THE STATUTE FOR THE DETERMINATION OF
THE YEAR IN WHICH THE LOSS IS TO BE DEDUCTED.  THE GENERAL REQUIREMENT
THAT LOSSES BE DEDUCTED IN THE YEAR IN WHICH THEY ARE SUSTAINED CALLS
FOR A PRACTICAL, NOT A LEGAL TEST." 

THE STANDARD FOR DETERMINING THE YEAR FOR DEDUCTION OF A LOSS IS THUS
A FLEXIBLE, PRACTICAL ONE, VARYING ACCORDING TO THE CIRCUMSTANCES OF
EACH CASE.  THE TAXPAYER'S ATTITUDE AND CONDUCT ARE NOT TO BE IGNORED,
BUT TO CODIFY THEM AS THE DECISIVE FACTOR IN EVERY CASE IS TO SURROUND
THE CLEAR LANGUAGE OF SEC. 23(E) AND THE TREASURY INTERPRETATIONS WITH
AN ATMOSPHERE OF UNREALITY AND TO IMPOSE GRAVE OBSTACLES TO EFFICIENT
TAX ADMINISTRATION. 

SECOND.  THE TAXPAYER CONTENDS THAT EVEN UNDER THE PRACTICAL,
REALISTIC TEST THE STIPULATED FACTS DEMONSTRATE AS A MATTER OF LAW THAT
THE STOCK OF THE HARTMAN CORPORATION DID NOT BECOME WORTHLESS UNTIL
1937, WHEN THE STOCKHOLDERS' SUIT WAS SETTLED.  HENCE IT IS CLAIMED
THAT THE TAX COURT ERRED IN CONCLUDING THAT THERE WAS NOT A DEDUCTIBLE
LOSS IN 1937 WITHIN THE MEANING OF SEC. 23(E). 

BUT THE QUESTION OF WHETHER PARTICULAR CORPORATE STOCK DID OR DID NOT
BECOME WORTHLESS DURING A GIVEN TAXABLE YEAR IS PURELY A QUESTION OF
FACT TO BE DETERMINED IN THE FIRST INSTANCE BY THE TAX COURT, THE BASIC
FACT-FINDING AND INFERENCE-MAKING BODY.  THE CIRCUMSTANCE THAT THE
FACTS IN A PARTICULAR CASE MAY BE STIPULATED OR UNDISPUTED DOES NOT
MAKE THIS ISSUE ANY LESS FACTUAL IN NATURE.  THE TAX COURT IS ENTITLED
TO DRAW WHATEVER INFERENCES AND CONCLUSIONS IT DEEMS REASONABLE FROM
SUCH FACTS.  AND AN APPELLATE COURT IS LIMITED, UNDER FAMILIAR
DOCTRINES, TO A CONSIDERATION OF WHETHER THE DECISION OF THE TAX COURT
IS "IN ACCORDANCE WITH LAW."  26 U.S.C. SEC. 1141(C)(1).  IF IT IS IN
ACCORDANCE, IT IS IMMATERIAL THAT DIFFERENT INFERENCES AND CONCLUSIONS
MIGHT FAIRLY BE DRAWN FROM THE UNDISPUTED FACTS.  COMMISSIONER V.
SCOTTISH AMERICAN CO., 323 U.S. 119. 

HERE IT WAS THE BURDEN OF THE TAXPAYER TO ESTABLISH THE FACT THAT
THERE WAS A DEDUCTIBLE LOSS IN 1937.  BURNET V. HOUSTON, 283 U.S. 223,
227.  THIS BURDEN WAS SOUGHT TO BE CARRIED BY MEANS OF THE STIPULATION
OF FACTS.  BUT THE TAX COURT, USING THE PRACTICAL TEST PREVIOUSLY
DISCUSSED, FOUND THE STIPULATED FACTS "INSUFFICIENT TO ESTABLISH THAT
THE STOCK HAD ANY VALUE AT THE BEGINNING OF 1937 AND BECAME WORTHLESS
DURING THAT YEAR."  IT FELT THAT SUCH EVIDENCE "CLEARLY SHOWS THAT THE
STOCK WAS WORTHLESS PRIOR TO THAT YEAR." 

WE ARE UNABLE TO SAY THAT THE TAX COURT'S INFERENCES AND CONCLUSIONS
ON THIS FACTUAL MATTER ARE SO UNREASONABLE FROM AN EVIDENTIARY
STANDPOINT AS TO REQUIRE A REVERSAL OF ITS JUDGMENT.  THE STIPULATION
SHOWS A SUCCESSION OF "IDENTIFIABLE EVENTS," OCCURRING LONG BEFORE
1937, TO JUSTIFY THE CONCLUSION THAT THE STOCK WAS WORTHLESS PRIOR TO
THE TAXABLE YEAR.  THE SERIOUS LOSSES OVER A PERIOD OF YEARS, THE
RECEIVERSHIP, THE RECEIVERS' REPORTS, THE EXCESS OF LIABILITIES OVER
ASSETS, THE TERMINATION OF OPERATIONS AND THE BANKRUPTCY SALE OF THE
ASSETS OF THE PRINCIPAL SUBSIDIARY ALL LEND CREDENCE TO THE TAX COURT'S
JUDGMENT.  FN8  WHILE THE STOCKHOLDERS' SUIT WAS PROSECUTED AGAINST
DEFENDANTS OF ADMITTED "FINANCIAL RESPONSIBILITY" AND CONSTITUTED AN
ASSET OF THE CORPORATION UNTIL SETTLED IN 1937, THE TAX COURT FELT THAT
NO SUBSTANTIAL VALUE TO THE SUIT HAD BEEN SHOWN.  THERE WAS NO EVIDENCE
IN THE STIPULATION OF THE MERITS OF THE SUIT, THE PROBABILITY OF
RECOVERY OR ANY ASSURANCE OF COLLECTION OF AN AMOUNT SUFFICIENT TO PAY
THE CREDITORS' CLAIMS OF MORE THAN $630,000 AND TO PROVIDE A SUFFICIENT
SURPLUS FOR STOCKHOLDERS SO AS TO GIVE ANY REAL VALUE TO THEIR STOCK. 
THE MERE FACT THAT THE DEFENDANTS WERE FINANCIALLY RESPONSIBLE DOES NOT
NECESSARILY INJECT ANY RECOGNIZABLE VALUE INTO THE SUIT FROM THE
STOCKHOLDERS' VIEWPOINT.  HENCE IT WAS REASONABLE TO CONCLUDE THAT ALL
VALUE HAD DEPARTED FROM THE STOCK PRIOR TO 1937 AND THAT THERE WAS
NOTHING LEFT EXCEPT A CLAIM FOR DAMAGES AGAINST THIRD PARTIES FOR
DESTRUCTION OF THAT VALUE. 

THE TAXPAYER POINTS TO THE CONSEQUENCES OF ERROR AND OTHER
DIFFICULTIES CONFRONTING ONE WHO IN GOOD FAITH TRIES TO CHOOSE THE
PROPER YEAR IN WHICH TO CLAIM A DEDUCTION.  BUT THESE DIFFICULTIES ARE
INHERENT UNDER THE STATUTE AS NOW FRAMED.  ANY DESIRED REMEDY FOR SUCH
A SITUATION, OF COURSE, LIES WITH CONGRESS RATHER THAN WITH THE
COURTS.  IT IS BEYOND THE JUDICIAL POWER TO DISTORT FACTS OR TO
DISREGARD LEGISLATIVE INTENT IN ORDER TO PROVIDE EQUITABLE RELIEF IN A
PARTICULAR SITUATION.  AFFIRMED. 

FN1  49 STAT. 1648, 1659; 26 U.S.C. SEC. 23(E). 

FN2  THE BALANCE SHEET AS OF DECEMBER 31, 1931, WHICH ACCOMPANIED
THIS LETTER, SHOWED ASSETS AND LIABILITIES OF $15,401,097.97 AND A
TOTAL NET WORTH OF $9,410,659.50. 

FN3  THE CREDITOR'S BILL OF COMPLAINT STATED THAT HARTMAN CORPORATION
AND ITS SUBSIDIARIES IN 1931 SUSTAINED LOSSES OF $761,648 FROM CLOSING
STORES AND LOSSES OF $15,150,000 FROM NECESSARY LIQUIDATION.  IT WAS
FURTHER ALLEGED THAT THE CORPORATION SUSTAINED OPERATING LOSSES IN 1930
IN THE AMOUNT OF $1,830,000; IN 1931, $2,076,266[ FROM JANUARY, 1932,
TO JUNE 16, 1932, $400,000.  AFTER STATING THAT THE COMPANY WAS BEING
OPERATED AT A GREAT FINANCIAL LOSS AND THAT IT WAS UNABLE TO MEET AND
PAY ITS OBLIGATIONS, THE BILL CONCLUDED BY ALLEGING THAT THE ASSETS AND
PROPERTIES WERE OF GREAT VALUE AND THAT IF THEY WERE ADMINISTERED
THROUGH A RECEIVERSHIP THEY WOULD BE SUFFICIENT TO PAY ALL OF THE
CORPORATION'S LIABILITIES, LEAVING A SURPLUS FOR THE STOCKHOLDERS. 
FN4  THESE NINE PLAINTIFFS REPRESENTED 4,407 OF THE APPROXIMATELY
60,000 CLASS A SHARES OUTSTANDING AND 115 1/5 OF THE MORE THAN 335,000
CLASS B SHARES OUTSTANDING. 

FN5  THE COMMISSIONER ALSO INCLUDED IN THE TAXPAYER'S 1937 GROSS
INCOME THE $12,500 RECEIVED IN THE SETTLEMENT AND THE TAX COURT
SUSTAINED HIS ACTION.  BUT THE COURT BELOW REVERSED, HOLDING THAT THE
$12,500 MUST BE REGARDED AS A CAPITAL ITEM IN REDUCTION OF LOSS RATHER
THAN AS INCOME.  THIS POINT IS NOT NOW BEFORE US.    FN6  TREASURY
REGULATIONS 94, ART. 23(E)-1, UNDER THE REVENUE ACT OF 1936.  IDENTICAL
LANGUAGE IS CONTAINED IN REGULATIONS 86, ART. 23(E)-1, UNDER THE
REVENUE ACT OF 1934; REGULATIONS 101, ART. 23(E)-1, UNDER THE REVENUE
ACT OF 1938; REGULATIONS 103, SEC. 19.23(E)-1, UNDER THE INTERNAL
REVENUE CODE; AND REGULATIONS 111, SEC. 29.23(E)-1, UNDER THE INTERNAL
REVENUE CODE. 

FN7  TREASURY REGULATIONS 94, ART. 23(E)-4, FURTHER MAKES CLEAR THAT
ONLY LOSSES IN FACT ARE DEDUCTIBLE.  LOSSES ON STOCK DUE TO SHRINKAGE
OF VALUE ARE ALLOWABLE ONLY TO THE EXTENT "ACTUALLY SUFFERED WHEN THE
STOCK IS DISPOSED OF."  AND IF, BEFORE BEING DISPOSED OF, THE STOCK
BECOMES WORTHLESS, ITS COST OR OTHER BASIS "IS DEDUCTIBLE BY THE OWNER
FOR THE TAXABLE YEAR IN WHICH THE STOCK BECAME WORTHLESS, PROVIDED A
SATISFACTORY SHOWING IS MADE OF ITS WORTHLESSNESS." 

FN8  SEE, IN GENERAL, 5 MERTENS, LAW OF FEDERAL INCOME TAXATION,
SECS. 28.65 TO 28.69; LYNCH, "LOSSES RESULTING FROM STOCK BECOMING
WORTHLESS - DEDUCTIBILITY UNDER FEDERAL INCOME TAX LAWS," 8 FORDHAM L.
REV. 199. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















GANGE LUMBER CO. V. ROWLEY, 326 U.S. 295 


NO. 53.  ARGUED OCTOBER 16, 17, 1945.  - DECIDED NOVEMBER 13, 1945.  -
22 WASH.2D 250, 155 P.2D 802, APPEAL DISMISSED. 


PRIOR TO THE 1941 AMENDMENT OF THE WASHINGTON INDUSTRIAL INSURANCE
ACT, THERE WAS A 3-YEAR LIMITATION ON THE FILING BY A WORKMAN OF A
CLAIM FOR READJUSTMENT OF COMPENSATION ON ACCOUNT OF AGGRAVATION OF
INJURY.  THE 1941 AMENDMENT AUTHORIZED THE FILING OF SUCH A CLAIM
WITHIN FIVE YEARS FROM ITS EFFECTIVE DATE.  THERE WAS NO LIMITATION,
HOWEVER, BEFORE OR AFTER THE AMENDMENT, ON THE REOPENING OF A CLAIM AND
THE AWARDING OF ADDITIONAL COMPENSATION BY THE DEPARTMENT ON ITS OWN
MOTION.  A WORKMAN, AGAINST WHOM THE 3-YEAR LIMITATION OF THE
PREEXISTING LAW HAD RUN, FILED PURSUANT TO THE 1941 AMENDMENT A CLAIM
FOR READJUSTMENT AND WAS AWARDED ADDITIONAL COMPENSATION. 

HELD THAT, UPON THE RECORD IN THIS CASE, THE APPELLANT EMPLOYER -
HAVING SHOWN NEITHER A PROBABILITY THAT ITS FUTURE PREMIUM RATE WOULD
BE INCREASED BY ALLOWANCE OF THE ADDITIONAL AWARD NOR THAT UNDER THE
PREEXISTING LAW THE LIABILITY FOR AN ADDITIONAL AWARD HAD BEEN
EXTINGUISHED - FAILED TO MAKE A SHOWING OF SUCH SUBSTANTIAL INJURY,
ACTUAL OR IMPENDING, TO ANY LEGALLY PROTECTED INTEREST AS WOULD ENTITLE
IT TO QUESTION THE VALIDITY OF THE STATUTE UNDER THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  PP. 297, 307. 

GANGE LUMBER CO. V. ROWLEY AND DEPARTMENT OF LABOR & INDUSTRIES OF THE
STATE OF WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

APPEAL FROM A JUDGMENT WHICH SUSTAINED THE CONSTITUTIONALITY OF A
STATE STATUTE AS APPLIED TO THE APPELLANT. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL IS FROM A JUDGMENT OF THE SUPREME COURT OF WASHINGTON
RENDERED AFTER THE CASE JOURNEYED TWICE THROUGH THE STATE'S APPROPRIATE
ADMINISTRATIVE AND JUDICIAL TRIBUNALS.  21 WASH.2D 420, 22 WASH.2D
250.  FN1  THE JUDGMENT SUSTAINED AN AWARD MADE BY THE APPELLEE,
DEPARTMENT OF LABOR AND INDUSTRIES, IN FAVOR OF ROWLEY, THE INDIVIDUAL
APPELLEE.  THE AWARD WAS FOR COMPENSATION ON ACCOUNT OF THE
AGGRAVATION, BY 1943, OF INJURIES ORIGINALLY SUSTAINED BY ROWLEY IN
1937 IN THE COURSE OF HIS EMPLOYMENT BY APPELLANT.  A PRIOR AWARD FOR
THE ORIGINAL INJURY, MADE IN 1938, BECAME "FINAL"  FN2  WITHOUT APPEAL
AND IS ONLY INDIRECTLY IN ISSUE.  BOTH AWARDS WERE MADE PURSUANT TO THE
STATE'S STATUTORY PROVISIONS FOR INDUSTRIAL INSURANCE AND WERE PAYABLE
FROM A PUBLICLY ADMINISTERED FUND MAINTAINED, AS THE STATUTE REQUIRED,
BY "PREMIUMS" OR CONTRIBUTIONS OF EMPLOYERS.  FN3  APPELLANT CLAIMS
THAT THE STATUTE HAS BEEN APPLIED, IN RESPECT TO ITS LIABILITY FOR THE
PAYMENT OF PREMIUMS, IN A MANNER TO DEPRIVE IT OF PROPERTY WITHOUT DUE
PROCESS OF LAW, CONTRARY TO THE PROHIBITION OF THE FOURTEENTH
AMENDMENT. 

THE CONTROVERSY RESULTS FROM A 1941 AMENDMENT OF THE WASHINGTON
INDUSTRIAL INSURANCE ACT,  FN4 BY WHICH THE TIME ALLOWED FOR THE
BENEFICIARY OF AN AWARD TO APPLY FOR ADDITIONAL COMPENSATION ON ACCOUNT
OF AGGRAVATION OF HIS INJURY WAS EXTENDED FROM THREE TO FIVE YEARS
AFTER THE ESTABLISHMENT (OR TERMINATION) OF COMPENSATION OR, BY VIRTUE
OF A PROVISO, TO FIVE YEARS FROM THE AMENDMENT'S EFFECTIVE DATE.  FN5
SINCE ROWLEY'S APPLICATION PRESENTLY INVOLVED WAS MADE IN TIME ONLY BY
VIRTUE OF THE PROVISO,  FN6  APPELLANT ASSERTS THAT THE AMENDMENT HAS
BEEN APPLIED RETROACTIVELY TO REVIVE A CLAIM BARRED BY THE PREEXISTING
LAW, TO ITS SUBSTANTIAL DETRIMENT; AND THEREBY, UNDER THIS COURT'S
DECISION IN DANZER & CO. V. GULF & SHIP ISLAND R. CO., 268 U.S. 633,
THE CLAIMED UNCONSTITUTIONAL CONSEQUENCES HAVE BEEN CREATED. 

APPELLEES HAVE RESPONDED BY RELYING UPON CAMPBELL V. HOLT, 115 U.S.
620, AND CHASE SECURITIES CORP. V. DONALDSON, 325 U.S. 304.  THEY HAVE
URGED THAT AS APPLIED THE STATUTE HAS PRODUCED NO UNCONSTITUTIONAL
INJURY OR DETRIMENT TO ANY SUBSTANTIVE INTEREST OF APPELLANT; AND THAT
THE ONLY EFFECT HAS BEEN TO MODIFY ITS PROCEDURAL RIGHTS, IN PARTICULAR
BY SUPPLYING JUDICIAL REVIEW OF AWARDS FOR AGGRAVATION WHERE PREVIOUSLY
ONLY AN ADMINISTRATIVE REMEDY WAS AVAILABLE TO THE EMPLOYEE.  FN7  AS
ALL OF THESE CONTENTIONS ARE SOMEWHAT INTERRELATED, PRECISE
CONSIDERATION REQUIRES MORE EXPLICIT STATEMENT OF THE STATUTORY SCHEME
IN ITS APPLICATION TO THE FACTS. 

WASHINGTON'S PLAN OF INDUSTRIAL INSURANCE IS MUCH LIKE THAT OF OHIO,
BRIEFLY DESCRIBED IN COPPERWELD STEEL CO. V. INDUSTRIAL COMMISSION, 324
U.S. 780; CF. MATTSON V. DEPARTMENT OF LABOR, 293 U.S. 151.  THE STATE
SUPREME COURT HAS CHARACTERIZED THE SYSTEM AS NEITHER AN EMPLOYERS'
LIABILITY ACT NOR AN ORDINARY WORKMEN'S COMPENSATION ACT, BUT RATHER AS
AN INDUSTRIAL INSURANCE STATUTE HAVING ALL THE FEATURES OF AN INSURANCE
ACT.  STERTZ V. INDUSTRIAL INSURANCE COMMISSION, 91 WASH. 588, 594-595,
158 P. 256.  SALIENT CHARACTERISTICS, FOR PRESENT PURPOSES, INCLUDE THE
MAINTENANCE AND ADMINISTRATION BY THE STATE OF AN ACCIDENT FUND, WHICH
IS PAID INTO THE STATE TREASURY BY EMPLOYERS PURSUANT TO ANNUAL
ASSESSMENTS MADE BY THE DIRECTOR OF LABOR AND INDUSTRIES, THROUGH THE
SUPERVISOR OF INDUSTRIAL INSURANCE.  EXCEPT IN SITUATIONS NOT PRESENTLY
MATERIAL,  FN8 INJURED EMPLOYEES ARE DEPRIVED OF COMMON-LAW CAUSES OF
ACTION AGAINST THEIR EMPLOYERS AND ARE RESTRICTED TO RECOVERY FROM THIS
FUND AS REPARATION FOR INJURIES SUSTAINED AT WORK. 

THE DIRECTOR IS EMPOWERED TO PROMULGATE, CHANGE AND REVISE RATES TO
BE PAID BY EMPLOYER CONTRIBUTORS.  THE SCHEME FOR DETERMINING THE RATES
IS SOMEWHAT COMPLICATED, REQUIRING CLASSIFICATION OF CONTRIBUTORS AND
THEIR WORK ACCORDING TO ITS HAZARD; AND ADJUSTMENT OF PREMIUMS TO TAKE
ACCOUNT OF THE COST EXPERIENCE NOT ONLY OF EACH CLASS BUT ALSO OF EACH
EMPLOYER, AS WELL AS THE CONDITION OF THE FUND.  REM.  REV. STAT.
WASH., SEC. 7676.  A BASIC PREMIUM RATE, TO APPLY FOR THE ENSUING
CALENDAR YEAR, IS FIXED ANNUALLY FOR EACH CLASS, WHICH TAKES ACCOUNT OF
ITS COST EXPERIENCE OVER A TWO-YEAR PERIOD AND OF THE CONDITION OF THE
CLASS FUND.  AT THE SAME TIME A PREMIUM RATE OF EACH EMPLOYER IS FIXED
WITH RELATION TO EACH CLASS, ALSO TO APPLY FOR THE ENSUING YEAR, WHICH
TAKES INTO CONSIDERATION THE EMPLOYER'S AVERAGE COST EXPERIENCE "FOR
EACH WORKMAN HOUR REPORTED BY HIM DURING EACH FISCAL YEAR  ...  OVER
THE FIVE YEAR PERIOD" IMMEDIATELY PRECEDING THE DETERMINATION.  THE
ACTUAL PREMIUM RATE THE EMPLOYER IS REQUIRED TO PAY CONSISTS OF 40 PER
CENT OF THE BASIC RATE PLUS 60 PER CENT OF HIS COST RATE AS THUS
DETERMINED; BUT IN NO EVENT IS THE TOTAL RATE TO EXCEED 160 PER CENT OF
THE BASIC RATE. 

PREMIUMS WHEN PAID ARE PLACED TO THE CREDIT OF THE EMPLOYER IN THE
APPROPRIATE FUND, BUT BECOME THE EXCLUSIVE PROPERTY OF THE STATE,
EARMARKED AND APPROPRIATED FOR THE SPECIFIC USES PROVIDED BY THE
STATUTE.  REM.  REV. STAT. WASH., SEC. 7676.  SEE STATE EX REL.
TRENHOLM V. YELLE, 174 WASH. 547, 550.  NO PROVISION IS MADE FOR
REPAYMENT OR RECOVERY OF ANY EMPLOYER'S CONTRIBUTION ONCE IT IS PAID
IN, REGARDLESS OF WHETHER THE FULL AMOUNT IS REQUIRED TO COMPENSATE HIS
OR OTHERS' EMPLOYEES FOR INJURIES SUSTAINED; AND NO SUCH REPAYMENTS ARE
CONTEMPLATED.  AWARDS ARE PAYABLE SOLELY FROM THE APPROPRIATE FUND THUS
ACCUMULATED AND PAYMENT IS IN NO WISE DEPENDENT UPON THE EMPLOYER'S
CONTINUED EXISTENCE, OPERATION OR CONTRIBUTION TO THE FUND.  NOR, UNDER
THE PLAN, CAN PAYMENT AFFECT THE RATE OF PREMIUM FOR THE YEAR IN WHICH
THE AWARD IS ALLOWED. 

IN VIEW OF THESE PROVISIONS AND EFFECTS, THE STATE SUPREME COURT HAS
DECLARED THAT NEITHER THE EMPLOYER NOR THE EMPLOYEE HAS A VESTED RIGHT
OR INTEREST IN THE FUND; THE MONEYS WHEN COLLECTED ARE PUBLIC MONEYS,
HELD AND ADMINISTERED BY THE STATE, ALBEIT PURSUANT TO THE STATUTORY
PURPOSE THEY CONSTITUTE A "TRUST FUND" FOR THE BENEFIT OF INJURED
WORKMEN AND THEIR DEPENDENTS.  FN9  THE FUND IS THEREFORE IN NO SENSE
THE PRIVATE PROPERTY OF THE EMPLOYER.  CONSEQUENTLY THE PAYMENT OF
AWARDS OUT OF THE FUND IN ITSELF COULD NOT AMOUNT TO A DEPRIVATION OF
THE EMPLOYER'S PROPERTY.  INDEED, APPELLANT DOES NOT URGE THAT THE
APPLICATION OF MONEYS PREVIOUSLY PAID IN TO THE PAYMENT OF AN AWARD OF
ITSELF WORKS THE CLAIMED UNCONSTITUTIONAL RESULT.  RATHER THIS IS SAID
TO ARISE FROM THE EFFECT THE AWARD AND ITS PAYMENT MAY HAVE, BY VIRTUE
OF THE STATUTE'S PROVISIONS RELATING TO COST EXPERIENCE IN THE FIXING
OF RATES, UPON APPELLANT'S LIABILITY FOR THE PAYMENT OF PREMIUMS IN THE
FUTURE.  IT IS ANTICIPATED, NOT PRESENTLY REALIZED OR IMMEDIATE,
FINANCIAL INJURY OF WHICH COMPLAINT IS MADE. 

AS HAS BEEN NOTED, IN COMPUTING THE RATE OF PREMIUM THE DIRECTOR IS
REQUIRED TO TAKE INTO ACCOUNT NOT ONLY THE COST EXPERIENCE OF EACH
CLASS OVER A PREVIOUS TWO-YEAR PERIOD, BUT ALSO THE AVERAGE COST
EXPERIENCE OF EACH EMPLOYER OVER THE IMMEDIATELY PRECEDING FIVE-YEAR
PERIOD, IN ADDITION TO "THE THEN CONDITION OF EACH CLASS AND/OR SUB
CLASS ACCOUNT."  THE QUOTED REFERENCE RELATES TO THE REQUIREMENTS FOR
THE KEEPING OF CLASS ACCOUNTS, IN THE ADMINISTRATION OF THE FUND, FOR
CREDITING OF THE PAYMENTS MADE BY EACH EMPLOYER TO THE APPROPRIATE
ACCOUNTS, AND FOR THE CHARGING OF AWARDS MADE TO OR ON ACCOUNT OF
INJURIES TO HIS EMPLOYEES AGAINST HIS EXPERIENCE.  REM.  REV. STAT.
WASH., SEC. 7676.  IT IS THIS CHARGE OF WHICH APPELLANT COMPLAINS, IN
THE VIEW APPARENTLY THAT IT NECESSARILY WILL ENTAIL THE PAYMENT OF A
HIGHER PREMIUM IN YEARS FOLLOWING THE ONE IN WHICH THE AWARD IS MADE,
WHEN THE RATE COMPUTED AS THE STATUTE REQUIRES WILL REFLECT INCLUSION
OF THE AWARD IN ITS COST EXPERIENCE.  ACCORDINGLY, SINCE IT DETERMINES
THAT THE CHARGE WILL BE MADE, THE ALLOWANCE OF AN AWARD IS SAID TO BE A
MATTER VITALLY AFFECTING THE EMPLOYER'S SUBSTANTIVE LIABILITY AND
CONSTITUTES A FINAL ADJUDICATION OF THAT LIABILITY TO THE EXTENT THAT
THE CHARGE MAY AFFECT THE FUTURE RATE. 

MOREOVER, THE STATUTE PROVIDES IN ITS PROCEDURAL PHASES FOR THE
EMPLOYER TO HAVE NOTICE AND THE RIGHT TO PARTICIPATE FULLY IN THE
DETERMINATION.  FN10  IT MUST BE TAKEN THAT THIS RIGHT IS CONFERRED FOR
THE EMPLOYER'S PROTECTION IN THE FIXING OF RATES AS THEY MAY BE
AFFECTED BY THE ALLOWANCE OF AWARDS THROUGH THE INCLUSION OF HIS COST
EXPERIENCE AS A FACTOR IN RATE COMPUTATION.  ESPECIALLY IN VIEW OF
THESE PROCEDURAL PROTECTIONS, APPELLANT URGES THAT ITS SUBSTANTIVE
LIABILITY, ONCE IT IS TERMINATED THROUGH BARRING OF A CLAIMANT'S RIGHT
TO PROCEED BY LAPSE OF TIME, BECOMES AN ADJUDICATED MATTER,
SUBSTANTIVE, NOT MERELY PROCEDURAL OR REMEDIAL IN CHARACTER; AND CANNOT
THEREFORE BE REVIVED CONSISTENTLY WITH THE DECISION IN THE DANZER
CASE. 

WERE THIS ALL, AND WERE THE STATE OF THE RECORD PLAIN THAT THE
ALLOWANCE OF THE AWARD NECESSARILY WOULD RESULT IN A LATER INCREASE OF
THE PREMIUM, WE WOULD BE CONFRONTED WITH THE NECESSITY OF DETERMINING
WHETHER SUCH AN INCREASE WOULD CONSTITUTE THE KIND OF INJURY OR
DETRIMENT FORBIDDEN BY THE DUE PROCESS CLAUSE.  A MERE INCREASE IN
PREMIUM, UNDER A COMPULSORY AND PUBLICLY ADMINISTERED ACCIDENT
INSURANCE PLAN, DESIGNED TO OPERATE AT COST BASED UPON GENERAL AND
INDIVIDUAL EXPERIENCE RATHER THAN AT AN ARBITRARY FIGURE,  FN11  AND
SURROUNDED WITH ADEQUATE PROCEDURAL SAFEGUARDS AGAINST ARBITRARY
ACTION, WOULD NOT SEEM TO BE SO OBVIOUSLY HARSH OR ARBITRARY IN ITS
EFFECT UPON EMPLOYERS GENERALLY THAT IT COULD BE SAID WITHOUT QUESTION
TO BE BEYOND THE SCOPE OF THE STATE'S REGULATORY POWER OR IN VIOLATION
OF THE DUE PROCESS PROHIBITION OF THE FEDERAL CONSTITUTION. 

BUT WE ARE NOT FACED WITH THE NECESSITY FOR DECIDING THAT QUESTION. 
ALTHOUGH APPELLANT'S BRIEF STATES THAT "THE AWARD WILL BE PAID IN LARGE
MEASURE" BY ITSELF, IT IS NOT ASSERTED THAT THIS BURDEN WILL RESULT
FROM ANY INCREASE IN APPELLANT'S RATE OR IN FACT THAT ANY INCREASE
NECESSARILY WILL FOLLOW FROM ALLOWANCE AND PAYMENT OF THE AWARD.  ON
THE CONTRARY, THE STATEMENT SEEMS OBVIOUSLY IRRELEVANT, OR ERRONEOUS IN
SO FAR AS IT MAY BE TAKEN TO IMPLY THAT EITHER OF THESE CONSEQUENCES
WILL FOLLOW, SINCE IN NO EVENT CAN THE AWARD BE PAID OUT OF THE FUNDS
COLLECTED FROM AN INCREASE PRODUCED WHOLLY OR IN PART BY ITS
ALLOWANCE.  IT IS NOT UNTIL AFTER THE AWARD HAS BEEN ALLOWED THAT IT
CAN BE CHARGED TO THE EMPLOYER'S EXPERIENCE OR AFFECT HIS RATE OF
CONTRIBUTION. 

MOREOVER, IF APPELLANT IS TAKEN TO ARGUE THAT AN INCREASE WILL RESULT
FOR THE YEAR OR YEARS FOLLOWING THE AWARD'S ALLOWANCE, THE RECORD
NEITHER DEMONSTRATES THIS NOR FURNISHES SUPPORT FOR AN INFERENCE THAT
SUCH A RESULT NECESSARILY OR EVEN PROBABLY WILL FOLLOW.  AS THE
DEPARTMENT POINTS OUT, THE PAYMENT WHEN MADE MAY BE ONE FACTOR IN
DETERMINING APPELLANT'S FUTURE RATE.  BUT THE RECORD DOES NOT DISCLOSE
WHAT RATE APPELLANT HAS BEEN PAYING.  FOR ALL THAT APPEARS, THIS MAY BE
THE MAXIMUM PERMITTED BY THE STATUTE, IN WHICH EVENT NO INJURY, PRESENT
OR FUTURE, COULD RESULT FROM ALLOWANCE AND PAYMENT OF THE AWARD.  FN12
MOREOVER, IF IT WERE ASSUMED THAT THE RATE WAS LESS THAN THE MAXIMUM,
WHETHER OR NOT AN INCREASE WOULD RESULT OR, IF SO, WHETHER IT WOULD BE
SUBSTANTIAL, ARE QUESTIONS WHOLLY SPECULATIVE. 

A VARIETY OF CONSIDERATIONS MAKES THEM SO.  APPELLANT'S EXPERIENCE IS
BUT ONE FACTOR IN THE COMPUTATION.  IT AFFECTS ONLY 60 PER CENT OF THE
ACTUAL RATE.  A SINGLE AWARD IS REFLECTED IN THIS FRACTION ONLY AS IT
AFFECTS THE FIVE-YEAR INDIVIDUAL AVERAGE.  WHEN SO REFLECTED THE AMOUNT
OF RESULTING INCREASE IN THAT AVERAGE AND IN THE FRACTION MAY BE
INFINITESIMAL OR INSUBSTANTIAL.  THE ULTIMATE EFFECT UPON THE ACTUAL
RATE WILL BE WATERED DOWN NEARLY BY HALF THROUGH INCLUSION OF THE 40
PER CENT FACTOR FOR CLASS EXPERIENCE.  SINCE THE CONDITION OF THE FUND
ALSO MUST BE CONSIDERED, THIS TOO MAY MINIMIZE FURTHER THE EFFECT OR,
SO FAR AS APPEARS, MAKE AN INCREASE ENTIRELY UNNECESSARY.  THE RECORD
FURNISHES NO EVIDENCE CONCERNING THE CONDITION OF THE FUND, THE CLASS
EXPERIENCE OVER THE REQUIRED PERIOD OR THE APPELLANT'S INDIVIDUAL
EXPERIENCE OVER THE SPECIFIED FIVE YEARS.  THE AMOUNT OF THE AWARD IS
SMALL, $460.50. 

IN SUM, ALL THAT THE RECORD DISCLOSES IS THAT THIS AMOUNT WILL BE
CHARGED AGAINST THE APPELLANT'S EXPERIENCE AND TAKEN INTO ACCOUNT WITH
OTHER FACTORS, AS THE STATUTE REQUIRES, IN THE COMPUTATION FOR SOME
FUTURE PERIOD, WITH POSSIBLY SOME INCREASE RESULTING IN THE RATE.  BUT,
IN THE ABSENCE OF ALL EVIDENCE SHOWING THE FACTS CONCERNING THE OTHER
FACTORS, IT IS ENTIRELY PROBLEMATICAL WHETHER AN INCREASE WILL FOLLOW
OR, IF SO, WHETHER IT WILL BE WHOLLY MATHEMATICAL AND INFINITESIMAL OR
SUBSTANTIAL IN ITS ULTIMATE EFFECT UPON APPELLANT.  THIS BEING SO,
APPELLANT'S COMPLAINT COMES DOWN, ON THE RECORD, TO NOTHING MORE THAN
THE BARE POSSIBILITY OF SOME INJURY IN THE FUTURE.    THE FOURTEENTH
AMENDMENT, THROUGH THE DUE PROCESS CLAUSE, DOES NOT ASSURE PROTECTION
FROM THE STATES' REGULATORY POWERS AGAINST INJURIES SO REMOTE,
CONTINGENT AND SPECULATIVE.  FN13  SOME SUBSTANTIAL AND MORE IMMEDIATE
HARM MUST BE SHOWN TO PRESENT A JUSTICIABLE QUESTION CONCERNING THE
STATE'S POWER.  THE INJURY, AS IT APPEARS FROM THIS RECORD, IS NEITHER
SO CERTAIN NOR SO SUBSTANTIAL AS TO JUSTIFY A FINDING, UPON THAT
SHOWING, THAT APPELLANT'S SUBSTANTIAL RIGHTS HAVE BEEN OR WILL BE
INVADED BY ALLOWANCE AND PAYMENT OF THE AWARD. 

MOREOVER, UNDER THE ACT'S PROCEDURAL PROVISIONS, APPELLANT HAS AT NO
TIME BEEN FREE FROM THIS CONTINGENT LIABILITY, WHETHER BEFORE OR AFTER
THE 1941 AMENDMENT.  FOR, ALTHOUGH THE 1927 AMENDMENT PRECLUDED THE
EMPLOYEE FROM FILING CLAIM AS OF RIGHT AFTER THE THREE-YEAR PERIOD, IT
FOLLOWED THE ORIGINAL ACT IN PLACING NO LIMIT UPON THE TIME WITHIN
WHICH THE DEPARTMENT, OF ITS OWN MOTION, MIGHT REOPEN THE CLAIM AND
INCREASE, REDUCE OR TERMINATE THE COMPENSATION.  FN14 APPELLANT
THEREFORE WAS AT ALL TIMES SUBSTANTIVELY LIABLE TO HAVE ITS PREMIUM
RATE INCREASED BY THE ALLOWANCE OF AN AWARD FOR AGGRAVATION; AND THE
INITIAL AWARD, IN CONSEQUENCE, WAS IN NO SENSE RES JUDICATA AGAINST
LATER IMPOSITION OF THIS LIABILITY.  FN15  APPELLANT'S CONTRARY
ARGUMENT ERRONEOUSLY CORRELATES ITS OWN LIABILITY TO PAY PREMIUMS, FOR
PURPOSES OF APPLYING THE STATUTE'S BAR, WITH THE EMPLOYEE'S RIGHT
FORMALLY TO INSTITUTE THE PROCEEDINGS (AND TO HAVE JUDICIAL REVIEW) FOR
SECURING AN AWARD, AND ASSUMES THAT THIS LIABILITY WAS TERMINATED. 
FN16 

IT IS TRUE THAT THE RESTORATION, BY THE 1941 AMENDMENT, OF THE
EMPLOYEE'S RIGHT OF TAKING THE INITIATIVE MAY HAVE HAD PRACTICAL
EFFECTS TOWARD INCREASING THE RATES OF PREMIUM, ALTHOUGH NONE ARE SHOWN
BY THIS RECORD WITH ANY CERTAINTY.  BUT APPELLANT IS SEEKING TO HAVE A
STATE STATUTE VOIDED ON THE GROUND THAT IT WORKS A SUBSTANTIAL INJURY
TO ITS SUBSTANTIVE RIGHTS BY CREATING OR RECREATING A LIABILITY WHICH
HAD BEEN EXTINGUISHED BY PREVIOUSLY APPLICABLE LAW.  IT THEREBY HAS
UNDERTAKEN TO DEMONSTRATE NOT ONLY THE INJURY AND ITS SUBSTANTIAL
CHARACTER, BUT AS PART OF THAT BURDEN THE EXTINCTION OF THE PREEXISTING
SUBSTANTIVE LIABILITY.  THIS IT HAS NOT DONE AND COULD NOT DO, IN VIEW
OF THE DEPARTMENT'S POWER TO REOPEN THE CLAIM.  IT HAS SUCCEEDED ONLY
IN SHOWING THAT ONE MODE PROVIDED BY THE PREEXISTING LAW FOR BRINGING
THE LIABILITY INTO PLAY HAD BEEN TERMINATED.  IT WAS THIS AND ONLY THIS
WHICH THE 1941 AMENDMENT REVIVED.  AT THE MOST, THEREFORE, APPELLANT'S
INJURY, IF IT WERE OTHERWISE MORE SUBSTANTIAL, WOULD CONSIST IN THE
RESTORATION OF AN ALTERNATIVE, IF ALSO POSSIBLY A MORE EFFECTIVE,
METHOD FOR PUTTING IN MOTION THE MACHINERY PROVIDED FOR MAKING AN
AWARD. 

IN OUR VIEW APPELLANT HAS NOT MADE THE SHOWING OF SUBSTANTIAL HARM,
ACTUAL OR IMPENDING, TO ANY LEGALLY PROTECTED INTEREST WHICH IS
NECESSARY TO CALL IN QUESTION THE STATUTE'S VALIDITY.  FN17
ACCORDINGLY, THE APPEAL MUST BE AND HEREBY IS DISMISSED.  FN18 

FN1  THE PROCEDURE FOR MAKING CLAIMS BEFORE THE DEPARTMENT OF LABOR
AND INDUSTRIES AND FOR OBTAINING JUDICIAL REVIEW IS SKETCHED BELOW IN
NOTE 10.  ON THE FIRST JOURNEY OF THE CAUSE TO THE SUPREME COURT, THE
DEPARTMENT AND THE SUPERIOR COURT HELD THAT THE CLAIM WAS OUT OF TIME
AND THAT IT SHOULD BE DISMISSED.  AFTER REVERSAL OF THESE RULINGS, THE
CASE WAS RETURNED TO THE DEPARTMENT FOR THE MAKING OF AN AWARD, AND ITS
ORDER ACCOMPLISHING THIS WAS AFFIRMED BY THE SUPERIOR AND SUPREME
COURTS, AS AGAINST APPELLANT'S CONSTITUTIONAL OBJECTIONS URGED HERE AND
OTHERS. 

FN2  THE AWARD BECAME FINAL, FOR PURPOSES OF REVIEW, IN SO FAR AS THE
AMOUNT OF COMPENSATION ALLOWABLE FOR THE ORIGINAL INJURY AS PROVED IN
THAT PROCEEDING WAS CONCERNED.  BUT IT WAS AT ALL TIMES SUBJECT TO
BEING REOPENED FOR THE ALLOWANCE OF ADDITIONAL COMPENSATION ON ACCOUNT
OF AGGRAVATION OF THE ORIGINAL INJURY TAKING PLACE AFTER THE ORIGINAL
AWARD.  SEE NOTE 5; ALSO NOTES 14, 15 AND TEXT. 

FN3  WASHINGTON'S ORIGINAL WORKMEN'S COMPENSATION (OR MORE PROPERLY
INDUSTRIAL INSURANCE) ACT WAS ADOPTED IN 1911, LAWS OF WASH., 1911, C.
74(REMINGTON'S REVISED STATUTES OF WASHINGTON, SECS. 7673 ET SEQ.).
FOR PURPOSES MATERIAL TO THE DISPOSITION OF THIS CAUSE, THE ACT WAS
AMENDED IN 1927, BY PLACING A LIMIT OF THREE YEARS FROM SPECIFIED DATES
UPON THE FILING OF CLAIMS BY INJURED WORKMEN FOR AGGRAVATION OF
INJURIES (LAWS OF WASH., 1927, C. 310, P. 844; REM.  REV.  STAT. WASH.,
1932, SEC. 7679(H), AMENDING LAWS OF 1911, C. 74, SEC. 5(H)  AND IN
1941(EFFECTIVE DECEMBER 3, 1942) BY EXTENDING THE THREE-YEAR PERIOD TO
FIVE YEARS.  LAWS OF WASH., 1941, C. 209, SEC. 1; REM.  REV.  STAT.
WASH., 1941 SUPP., SEC. 7679, AMENDING SUBSECTION (H) OF THE 1927
AMENDMENT. 

FN4  SEE NOTE 3. 

FN5  THE PROVISION, AS AMENDED IN 1941, WAS AS FOLLOWS:  "IF
AGGRAVATION, DIMINUTION, OR TERMINATION OF DISABILITY TAKES PLACE OR BE
DISCOVERED AFTER THE RATE OF COMPENSATION SHALL HAVE BEEN ESTABLISHED
OR COMPENSATION TERMINATED, IN ANY CASE THE DIRECTOR OF LABOR AND
INDUSTRIES, THROUGH AND BY MEANS OF THE DIVISION OF INDUSTRIAL
INSURANCE, MAY, UPON THE APPLICATION OF THE BENEFICIARY, MADE WITHIN
FIVE YEARS AFTER THE ESTABLISHMENT OR TERMINATION OF SUCH COMPENSATION,
OR UPON HIS OWN MOTION, READJUST FOR FURTHER APPLICATION THE RATE OF
COMPENSATION IN ACCORDANCE WITH THE RULES IN THIS SECTION PROVIDED FOR
THE SAME, OR IN A PROPER CASE TERMINATE THE PAYMENT: PROVIDED, ANY SUCH
APPLICANT WHOSE COMPENSATION HAS HERETOFORE BEEN ESTABLISHED OR
TERMINATED SHALL HAVE FIVE YEARS FROM THE TAKING EFFECT OF THIS ACT
WITHIN WHICH TO APPLY FOR SUCH READJUSTMENT."  LAWS OF WASH., 1941, C.
209, SEC. 1; REM.  REV.  STAT. WASH., 1941 SUPP., SEC. 7679(H). 

THE 1927 AMENDMENT, SEE NOTE 3, WAS IDENTICAL EXCEPT FOR USE OF THE
WORD "THREE" WHERE "FIVE" IS EMPLOYED.  THE ORIGINAL PROVISION, IN
FORCE FROM 1911 TO 1927, WAS AS FOLLOWS:  "IF AGGRAVATION, DIMINUTION,
OR TERMINATION OF DISABILITY TAKES PLACE OR BE DISCOVERED AFTER THE
RATE OF COMPENSATION SHALL HAVE BEEN ESTABLISHED OR COMPENSATION
TERMINATED IN ANY CASE THE DEPARTMENT MAY, UPON THE APPLICATION OF THE
BENEFICIARY OR UPON ITS OWN MOTION, READJUST FOR FUTURE APPLICATION THE
RATE OF COMPENSATION IN ACCORDANCE WITH THE RULES IN THIS SECTION
PROVIDED FOR THE SAME, OR IN A PROPER CASE TERMINATE THE PAYMENTS." 
LAWS OF WASH., 1911, C. 74, SEC. 5(H). 

FN6  THE ORIGINAL INJURY WAS INCURRED JULY 13, 1937.  THE ORIGINAL
AWARD, OF $307.50, FOR PERMANENT PARTIAL DISABILITY OF THE RIGHT HAND,
BECAME "FINAL," CF. NOTE 2, MARCH 9, 1938.  THE 1927 AMENDMENT, SEE
NOTES 3 AND 5, WAS IN FORCE AT THAT TIME AND UNTIL DECEMBER 3, 1942,
WHEN THE 1941 AMENDMENT BECAME EFFECTIVE.  ROWLEY'S CLAIM FOR
AGGRAVATION WAS NOT FILED UNTIL MARCH 19, 1943, MORE THAN FIVE YEARS
FROM THE TIME THE ORIGINAL AWARD WAS "CLOSED," BUT LESS THAN FIVE YEARS
FROM THE DATE THE 1941 AMENDMENT, WITH THE PROVISO, BECAME EFFECTIVE. 

FN7  CF. NOTE 18. 

FN8  E.G., THE ACT PROVIDES THAT AN EMPLOYER, DEFAULTING IN HIS
PAYMENT OF PREMIUMS, SHALL BE LIABLE TO SUIT BY THE INJURED WORKMAN, AS
PRIOR TO 1911, BUT WITHOUT SPECIFIED DEFENSES THEN AVAILABLE.  REM. 
REV. STAT. WASH., SEC. 7676. 

FN9  SEE THE OPINION OF THE COURT UPON THE FIRST APPEAL IN THIS
CAUSE, 21 WASH.2D 420, 427-429; MATTSON V. DEPARTMENT OF LABOR, 176
WASH. 345, 347-348, 29 P.2D 675, AFFIRMED, 293 U.S. 151, HOLDING THAT
THE 1927 AMENDMENT PUTTING A LIMIT OF THREE YEARS TO THE EMPLOYEE'S
RIGHT TO CLAIM COMPENSATION AS OF RIGHT IMPAIRED NO VESTED RIGHT OF THE
EMPLOYEE, WHETHER OF PROPERTY OR EQUAL PROTECTION UNDER THE FOURTEENTH
AMENDMENT, OR OF CONTRACT UNDER ARTICLE I, SEC. 10, OF THE FEDERAL
CONSTITUTION, AND AUTHORITIES CITED. 

FN10  REPORT OF ACCIDENT AND CLAIM FOR COMPENSATION MUST BE FILED
WITH THE APPELLEE DEPARTMENT OF LABOR AND INDUSTRIES.  IF EITHER THE
CLAIMANT OR THE EMPLOYER IS AGGRIEVED BY ANY ORDER, DECISION OR AWARD,
HE MAY PETITION FOR REHEARING BEFORE THE JOINT BOARD OF THE
DEPARTMENT.  IF REHEARING IS GRANTED, THE BOARD MAY RECEIVE TESTIMONY. 
APPEAL LIES FROM THE BOARD'S ORDER TO THE SUPERIOR COURT, WHERE THE
MATTER IS TRIABLE DE NOVO, BUT UPON THE RECORD MADE BEFORE THE BOARD,
AND FROM THE SUPERIOR COURT'S JUDGMENT TO THE SUPREME COURT.  REM. 
REV. STAT. WASH., SEC. 7686; (1943 SUPP.) SEC. 7697. 

NO COMPLAINT IS MADE THAT APPELLANT DID NOT HAVE FULL BENEFIT OF THE
ACT'S PROCEDURAL PROTECTIONS. 

ALTHOUGH THE ACT DOES NOT PROVIDE SPECIFICALLY FOR THE EMPLOYER TO
CONTEST THE VALIDITY OF AN AWARD AT THE TIME THE DEPARTMENT IS FIXING
THE RATE FOR THE ENSUING YEAR OR WHEN HE IS CALLED UPON TO PAY THAT
PREMIUM, IT DOES NOT APPEAR AFFIRMATIVELY THAT HE MAY NOT HAVE REMEDY
THEN UNDER THE GENERAL LAW OF THE STATE.  CF. COPPERWELD STEEL CO. V.
INDUSTRIAL COMMISSION, 324 U.S. 780. 

FN11  THE ORIGINAL ACT, AS ADOPTED IN 1911, PROVIDED FOR A UNIFORM
RATE OF PREMIUM TO BE COLLECTED FROM ALL EMPLOYERS.  LAWS OF WASH.,
1911, C. 74, SEC. 4.  THE COST FEATURE BASED UPON EXPERIENCE WAS
INTRODUCED IN 1931.  LAWS OF WASH., 1931, C. 104, SEC. 1. 

THE ORIGINAL ACT WITH ITS FEATURE OF "UNIFORM PAYMENT" WAS HELD
CONSTITUTIONAL BY THIS COURT IN MOUNTAIN TIMBER CO. V. WASHINGTON, 243
U.S. 219, AFFIRMING STATE V. MOUNTAIN TIMBER CO., 75 WASH. 581, 135 P.
645.  SEE ALSO STATE EX REL. DAVIS-SMITH CO. V. CLAUSEN, 65 WASH. 156,
117 P. 1101.  THE "COST EXPERIENCE" AMENDMENT WAS SAID TO BE VALID IN
STATE EX REL. CRABB V. OLINGER, 196 WASH. 308, 82 P.2D 865, OVERRULED
ON ANOTHER POINT IN ST. PAUL & TACOMA LUMBER CO. V. DEPARTMENT OF
LABOR, 19 WASH.2D 639, 649, 144 P.2D 250. 

FN12  EXCEPT POSSIBLY UPON THE CONTINGENCY, EQUALLY SPECULATIVE UPON
THE RECORD, THAT THE MAXIMUM RATE MIGHT BE REDUCED IN CASE THE CHARGE
RESULTING FROM THE AWARD WERE NOT MADE. 

FN13  CF. MALLINCKRODT CHEMICAL WORKS V. MISSOURI EX REL. JONES, 238
U.S. 41, 54; PLYMOUTH COAL CO. V. PENNSYLVANIA, 232 U.S. 531, 544-545,
AND AUTHORITIES CITED.  CF. ALSO CASTILLO V. MCCONNICO, 168 U.S. 674,
680; TYLER V. JUDGES OF THE COURT OF REGISTRATION, 179 U.S. 405;
FROTHINGHAM V. MELLON, 262 U.S. 447, 488. 

FN14  SEE THE TERMS OF SUBSECTION (H) IN ITS ORIGINAL AND AMENDED
FORMS AS SET FORTH IN NOTE 5; SMITH V. DEPARTMENT OF LABOR, 8 WASH.2D
587, 113 P.2D 57; CF. NOTE 15. 

FN15  IT WAS EXACTLY TO PREVENT SUCH RIGID FINALITY THAT THE STATUTE
PRESERVED BOTH THE DEPARTMENT'S UNLIMITED POWER TO REOPEN THE CASE AND
THE EMPLOYEE'S POWER TO HAVE IT REOPENED AS A MATTER OF RIGHT DURING
THE LIMITED PERIOD.  FROM THE BEGINNING THE ACT SEEMS TO HAVE BEEN
DRAWN TO AVOID THE CRYSTALLIZING EFFECTS OF THE DOCTRINE OF RES
JUDICATA IN RELATION TO AWARDS, WHETHER AS AGAINST THE EMPLOYER OR THE
EMPLOYEE.  THE IDEA APPARENTLY WAS THAT THE INITIAL AWARD FOR AN INJURY
WOULD AFFORD COMPENSATION FOR HARMS THEN APPARENT AND PROVED.  BUT IT
WAS RECOGNIZED, ON THE ONE HAND, THAT ALL HARMFUL CONSEQUENCES MIGHT
NOT HAVE BECOME APPARENT AT THAT TIME AND, ON THE OTHER, THAT HARMS
THEN SHOWN TO EXIST MIGHT LATER BE TERMINATED OR MINIMIZED.  CF.
CHOCTAW PORTLAND CEMENT CO. V. LAMB, 79 OKLA. 109, 110, 189 P. 750. 
THE PURPOSE OF THE PROVISIONS FOR REOPENING, WHETHER AT THE INSTANCE OF
THE EMPLOYER, THE EMPLOYEE, OR THE DEPARTMENT, CF. NOTES 5 AND 14,
OBVIOUSLY WAS TO PREVENT THE INITIAL AWARD FROM FINALLY CUTTING OFF
POWER TO TAKE ACCOUNT OF THESE LATER FREQUENT DEVELOPMENTS.  IT WAS TO
MAINTAIN A MOBILE SYSTEM, CAPABLE OF ADAPTING THE AMOUNT OF
COMPENSATION FROM TIME TO TIME IN ACCORDANCE WITH THE FACTS RELATING TO
THE INJURIOUS CONSEQUENCES FOR DISABILITY AS THEY ACTUALLY DEVELOP, NOT
TO CUT OFF RIGIDLY THE POWER EITHER TO INCREASE OR TO DECREASE THE
COMPENSATION ONCE AN AWARD HAD BECOME "FINAL" FOR PURPOSES OF APPEAL. 

FN16  OBVIOUSLY THE LIABILITY AND THE RIGHT WERE NOT COEXTENSIVE IN
DURATION, SINCE THE ONE CONTINUED AFTER THE OTHER HAD BEEN CUT OFF. 
THEY WERE LACKING ALSO IN CORRELATION OF OBLIGATION, SINCE THE EMPLOYER
WAS BOUND TO PAY THE FUND, NOT THE EMPLOYEE; AND THE LATTER RECOVERED
FROM THE FUND, NOT THE EMPLOYER.  RIGHT AND LIABILITY ARE USUALLY
CORRELATIVE IN A LEGAL RELATION.  BUT IN THIS INSTANCE THE CORRELATION,
AS APPELLANT POSES IT, IS LACKING; FOR TWO LEGAL RELATIONS ARE
INVOLVED, FROM EACH OF WHICH IT SEEKS TO EXTRACT A CORRELATIVE. 

FN17  CF. MATTSON V. DEPARTMENT OF LABOR, 293 U.S. 151. 

FN18  APPELLEES HAVE URGED THAT THE 1941 AMENDMENT DID NO MORE THAN
RESTORE THE RIGHT OF JUDICIAL REVIEW, AS TO CLAIMS FILED AFTER THE
THREE-YEAR PERIOD, WHICH PRIOR TO 1927 HAD EXISTED WITH REFERENCE TO
ALL CLAIMS FOR AGGRAVATION WITHOUT LIMITATION AS TO TIME; AND THEREFORE
THE AMENDMENT COULD BE TAKEN IN NO WAY TO VIOLATE ANY PROVISION OF THE
CONSTITUTION.  IT IS TRUE THAT THE 1941 AMENDMENT RESTORED THE
EMPLOYEE'S RIGHT OF JUDICIAL REVIEW WHERE PREVIOUSLY NONE HAD EXISTED. 
BUT IT ACCOMPLISHED MORE.  IT INVESTED THE EMPLOYEE WITH THE RIGHT TO
REQUIRE THE DEPARTMENT ITSELF TO PROCEED, WHERE PREVIOUSLY NO SUCH
RIGHT EXISTED.  WHETHER OR NOT THIS WOULD GIVE CAUSE FOR COMPLAINT, IF
THE RIGHT WERE COUPLED WITH A MORE SUBSTANTIAL AND LESS CONTINGENT
INJURY THAN IS SHOWN TO EXIST IN THIS CASE AND WITH A PREVIOUS TOTAL
EXTINCTION OF THE EMPLOYER'S LIABILITY, NEED NOT BE DETERMINED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE ONLY PRACTICAL EFFECT OF
THE CHALLENGED STATE STATUTE WAS TO GIVE TO AN INJURED EMPLOYEE A RIGHT
TO JUDICIAL REVIEW OF AN ADMINISTRATIVE ACTION; THAT A CONTENTION THAT
SUCH A STATUTE VIOLATES THE FEDERAL CONSTITUTION IS FRIVOLOUS; AND THAT
THE APPEAL SHOULD BE DISMISSED FOR THAT REASON. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BURTON CONCURS.    WE
CANNOT AGREE THAT THE INJURY TO APPELLANT IS SO REMOTE AND SPECULATIVE
AS TO PRECLUDE IT FROM ATTACKING ON CONSTITUTIONAL GROUNDS THE AWARD IN
QUESTION.  THE AWARD, WHETHER SMALL OR GREAT, ENTERS INTO THE
EMPLOYER'S COST EXPERIENCE; AND THE FUTURE PREMIUM PAYABLE BY THE
EMPLOYER REFLECTS IN PART ANY INCREASE OR DECREASE IN HIS COST
EXPERIENCE.  IF THE EMPLOYER IS NOT PAYING THE MAXIMUM RATE, AN
INCREASE IN HIS COST EXPERIENCE WILL INEVITABLY MAKE HIM PAY A RATE
WHICH WOULD BE LOWER BUT FOR THE INCREASE IN HIS COST EXPERIENCE.  AND
IF, PERCHANCE, HE IS ALREADY PAYING THE MAXIMUM RATE, AN INCREASE IN
HIS COST EXPERIENCE WILL INEVITABLY HOLD HIM THERE LONGER OR LESSEN ANY
REDUCTION TO WHICH HE OTHERWISE WOULD BE ENTITLED.  THE PRECISE EFFECT
ON FUTURE RATES CANNOT, OF COURSE, BE PRESENTLY ASCERTAINED.  NOR COULD
IT BE SHOWN IN ANY CASE, WHETHER THE AWARD WAS $460 OR $46,000.  FOR
THE RATES ARE FIXED ANNUALLY AND AT THE TIME OF ANY ONE AWARD ALL OF
THE ELEMENTS ENTERING INTO THE FUTURE COMPUTATION WILL NOT BE KNOWN. 
SO IF THIS EMPLOYER IS BARRED HERE BECAUSE HE CAN SHOW NO INJURY, HE
AND ALL OTHER EMPLOYERS WILL BE BARRED IN EVERY CASE.  FN1  YET WE KNOW
FROM THE OPERATION OF THE SYSTEM THAT THE COST EXPERIENCE OF EACH
EMPLOYER DETERMINES 60 PER CENT OF HIS FUTURE RATE.  THEIR RESPECTIVE
COSTS ALSO AFFECT TO A LESSER DEGREE THE BASIC PREMIUM RATE APPLICABLE
TO EACH EMPLOYER'S CLASS, AND 40 PER CENT OF THAT BASIC RATE IS
REFLECTED IN THE ACTUAL PREMIUM RATE PAID BY EACH EMPLOYER IN THAT
CLASS.  WE MIGHT AS WELL SAY THAT NO EMPLOYER COULD EVER CHALLENGE THE
CONSTITUTIONALITY OF AN AWARD UNDER THIS SYSTEM BECAUSE BANKRUPTCY,
FIRE OR SOME CATACLYSM MIGHT PUT HIM OUT OF BUSINESS BEFORE A NEW RATE
IS FIXED. 

ON THE MERITS WE THINK CAMPBELL V. HOLT, 115 U.S. 620, AND CHASE
SECURITIES CORP. V. DONALDSON, 325 U.S. 304, GOVERN THIS CASE.  AT NO
TIME WAS THE EMPLOYEE'S CLAIM FOR AGGRAVATION EXTINGUISHED.  AT ALL
TIMES THE DEPARTMENT COULD HAVE REOPENED THE CLAIM AND MADE AN
ADDITIONAL AWARD.  WE THEREFORE DO NOT REACH THE QUESTION OF THE
CONSTITUTIONALITY OF AN ACT WHICH MAKES IT POSSIBLE TO ENLARGE AN AWARD
WHERE PREVIOUSLY THERE HAD BEEN A FINAL ADJUDICATION OF THE CLAIM.  CF.
DANZER & CO. V. GULF & SHIP ISLAND R. CO., 268 U.S. 633. 

WE WOULD AFFIRM THE JUDGMENT. 

FN1  WE ARE NOT ADVISED THAT THE EMPLOYER CAN CONTEST THE VALIDITY OF
A PRIOR AWARD AT THE TIME THE DEPARTMENT OF LABOR AND INDUSTRIES IS
FIXING THE PREMIUM RATE TO BE PAID INTO THE FUND FOR THE ENSUING YEAR. 
THE PERTINENT STATUTE (REM.  REV.  STAT. SEC. 7676) DOES NOT PRESCRIBE
SUCH A REMEDY AND THE DECISION OF THE WASHINGTON SUPREME COURT IN MUD
BAY LOGGING CO. V. DEPARTMENT OF LABOR, 189 WASH. 285, 286, 64 P.2D
1054, WOULD SEEM TO INDICATE THAT IT IS NOT CONTEMPLATED. 
..END :











BAILEY V. ANDERSON, 326 U.S. 203 


NO. 49.  ARGUED OCTOBER 15, 1945.  - DECIDED NOVEMBER 5, 1945.  -
DISMISSED. 


1.  SECTION 1969J OF THE VIRGINIA CODE OF 1942 DOES NOT DENY THE DUE
PROCESS GUARANTEED BY THE FOURTEENTH AMENDMENT, AS APPLIED TO A
LANDOWNER UPON WHOSE LAND THE STATE HIGHWAY COMMISSIONER ENTERED AND
CONSTRUCTED A HIGHWAY IN ADVANCE OF THE APPOINTMENT OF COMMISSIONERS
AND BEFORE THEY COULD VIEW THE LAND FOR THE PURPOSE OF FIXING ITS FAIR
VALUE UPON CONDEMNATION, SINCE THE LANDOWNER HAD FULL OPPORTUNITY FOR A
HEARING BEFORE THE COMMISSIONERS, AND THEIR AWARD WAS SUBJECT TO A
JUDICIAL REVIEW UPON WHICH THE AWARD COULD BE SET ASIDE IF PLAINLY
WRONG OR UNSUPPORTED BY THE EVIDENCE.  P. 205. 

2.  THE QUESTION OF THE CONSTITUTIONALITY OF A CLAIMED DENIAL TO THE
LANDOWNER OF INTEREST ON THE VALUE OF THE PROPERTY FROM THE TIME OF THE
TAKING IS NOT PROPERLY PRESENTED UPON THE RECORD IN THIS CASE, SINCE IT
DOES NOT AFFIRMATIVELY APPEAR THAT APPELLANT RAISED THAT QUESTION ON
THE RECORD OR THAT THE STATE SUPREME COURT PASSED ON IT.  P. 206. 

BAILEY V. ANDERSON, STATE HIGHWAY COMMISSIONER. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

APPEAL FROM A JUDGMENT DENYING A PETITION FOR A WRIT OF ERROR TO
REVIEW A DECREE WHICH CONFIRMED AN AWARD OF COMPENSATION IN A
CONDEMNATION PROCEEDING. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

APPELLEE, STATE HIGHWAY COMMISSIONER OF VIRGINIA, BROUGHT THIS
PROCEEDING IN CONFORMITY TO SECS. 1969J (1)-1969J (6) OF THE VIRGINIA
CODE OF 1942, TO CONDEMN APPELLANT'S LAND FOR USE AS A PUBLIC HIGHWAY. 
ACTING UNDER SEC. 1969J (4), APPELLEE ENTERED ON THE LAND AND
CONSTRUCTED THE HIGHWAY IN ADVANCE OF ITS CONDEMNATION.  IN THE
CONDEMNATION PROCEEDING, BEGUN IN THE CIRCUIT COURT WITHIN SIXTY DAYS
AFTER THE COMPLETION OF THE HIGHWAY, THE COMMISSIONERS, APPOINTED AND
ACTING PURSUANT TO SEC. 1969J (2), AFTER VIEWING THE LAND, AND HEARING
EVIDENCE, MADE AN AWARD OF $1,500 FOR THE LAND OCCUPIED BY THE HIGHWAY,
AND OF $6,500 FOR DAMAGES "RESULTING TO THE ADJACENT OR OTHER PROPERTY
OF THE OWNER." 

THE VIRGINIA CIRCUIT COURT CONFIRMED THE COMMISSIONERS' REPORT, AND
BY ITS DECREE DIRECTED THAT INTEREST BE PAID ON THE AMOUNT OF THE AWARD
FROM THE DATE OF THE DECREE.  THE SUPREME COURT OF APPEALS OF VIRGINIA,
WITHOUT OPINION, DENIED APPELLANT'S PETITION FOR A WRIT OF ERROR.  THE
CASE COMES HERE ON APPEAL, SEC. 237(A) JUDICIAL CODE, 28 U.S.C. SEC.
344(A), APPELLANT ASSIGNING AS ERROR THAT SECS. 1969J (4) AND 1969J
(6), AS APPLIED TO APPELLANT, DENY TO HIM THE DUE PROCESS GUARANTEED BY
THE FOURTEENTH AMENDMENT.  ON EXAMINATION OF APPELLANT'S JURISDICTIONAL
STATEMENT WE POSTPONED THE QUESTION OF OUR JURISDICTION TO THE ARGUMENT
ON THE MERITS. 

APPELLANT CONTENDS HERE, AS HE DID IN THE STATE COURTS, THAT SEC.
1969J (4) INFRINGES THE ASSERTED CONSTITUTIONAL IMMUNITY BY SANCTIONING
APPELLEE'S ENTRY UPON THE LAND AND THE ALTERATION OF ITS PHYSICAL
CONDITION, IN ADVANCE OF THE APPOINTMENT OF THE COMMISSIONERS AND
BEFORE THEY COULD VIEW THE LAND FOR THE PURPOSE OF FIXING ITS FAIR
VALUE UPON CONDEMNATION.  BUT IT HAS LONG BEEN SETTLED THAT DUE PROCESS
DOES NOT REQUIRE THE CONDEMNATION OF LAND TO BE IN ADVANCE OF ITS
OCCUPATION BY THE CONDEMNING AUTHORITY, PROVIDED ONLY THAT THE OWNER
HAVE OPPORTUNITY, IN THE COURSE OF THE CONDEMNATION PROCEEDINGS, TO BE
HEARD AND TO OFFER EVIDENCE AS TO THE VALUE OF THE LAND TAKEN.  BRAGG
V. WEAVER, 251 U.S. 57, 62, AND CASES CITED; JOSLIN CO. V. PROVIDENCE,
262 U.S. 668, 677; GEORGIA V. CHATTANOOGA, 264 U.S. 472, 483.  ITS
VALUE MAY BE FIXED BY VIEWERS WITHOUT A HEARING, AFTER ENTRY UPON THE
LAND, IF THEIR AWARD IS SUBJECT TO A REVIEW IN WHICH A TRIAL UPON
EVIDENCE MAY BE HAD.  PEARSON V. YEWDALL, 95 U.S. 294, 296; BACKUS V.
FORT STREET UNION DEPOT CO., 169 U.S. 557, 569; BRAGG V. WEAVER, SUPRA,
59, AND CASES CITED; NORTH LARAMIE LAND CO. V. HOFFMAN, 268 U.S. 276,
284-285. 

HERE APPELLANT WAS GIVEN FULL OPPORTUNITY TO BE HEARD AND TO
INTRODUCE EVIDENCE BEFORE THE COMMISSIONERS.  THEY COULD, UPON THE
EVIDENCE SUBMITTED, TAKE INTO ACCOUNT THE ALTERATIONS OF THE PROPERTY
AFTER THE TAKING AND BEFORE THE VIEW; SUCH WAS THEIR DUTY UNDER THE
STATUTE.  THEIR AWARD IS MADE SUBJECT TO JUDICIAL REVIEW BY SEC. 1969J
(2), AND UPON SUCH REVIEW MAY BE SET ASIDE IF PLAINLY WRONG OR WITHOUT
SUPPORT IN THE EVIDENCE.  BARNES V. TIDEWATER R. CO., 107 VA. 263, 266
268, 58 S.E. 594; DUNCAN V. STATE HIGHWAY COMMISSION, 142 VA. 135, 146
148, 128 S.E. 546.  IN THIS WE FIND NO DENIAL OF DUE PROCESS, AND
APPELLANT'S CONTENTION PRESENTS NO SUBSTANTIAL CONSTITUTIONAL QUESTION,
AS THE AUTHORITIES CITED SHOW. 

APPELLANT ALSO INSISTS THAT THE STATE COURT JUDGMENT FAILED TO
INCLUDE IN THE AWARD INTEREST FROM THE DATE OF THE OCCUPATION OF HIS
LAND BY APPELLEE; THAT THE AWARD THUS DENIED TO HIM JUST COMPENSATION
FOR THE LAND TAKEN, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  SEE DELAWARE, L. & W.R. CO. V. MORRISTOWN, 276
U.S. 182.  APPELLANT'S PETITION IN THE CIRCUIT COURT ASKED THAT THE
AWARD INCLUDE INTEREST FROM THE DATE OF TAKING.  THE CIRCUIT COURT,
WITHOUT EXPLANATION, REJECTED HIS CLAIM FOR INTEREST.  BUT THROUGHOUT
THE PROCEEDINGS IN THE CIRCUIT COURT APPELLANT MADE NO CLAIM TO
INTEREST ON CONSTITUTIONAL GROUNDS, AND MADE NO ATTACK ON THE
CONSTITUTIONALITY OF THE AWARD OR THE COURT'S DECREE BECAUSE OF THE
ASSERTED DENIAL OF INTEREST.  FURTHER, NOTHING APPEARS IN THE RECORD TO
INDICATE THAT THE COMMISSIONERS' AWARD OF DAMAGES DID NOT INCLUDE THE
INTEREST CLAIMED.  APPELLEE ARGUES THAT THE APPLICABLE STATUTES
CONTEMPLATE THAT THE AWARD SHALL INCLUDE INTEREST AS COMPENSATION "FOR
THE DAMAGE AND DELAY" FROM THE TIME OF THE OCCUPATION OF THE PREMISES
TO THE DATE OF THE COMMISSIONERS' REPORT AND FOR SUCH FURTHER TIME
WITHIN WHICH APPLICATION MAY BE MADE FOR JUDICIAL REVIEW, SEE CITY OF
RICHMOND V. GOODWYN, 132 VA. 442, 452-454, 112 S.E. 787; EXPORT LEAF
TOBACCO CO. V. RICHMOND, 163 VA. 145, 155-156, 175 S.E. 753.  NOTHING
APPEARS TO THE CONTRARY. 

APPELLANT, FOR THE FIRST TIME, ASSAILED ON CONSTITUTIONAL GROUNDS THE
ASSERTED DENIAL OF INTEREST BY HIS ASSIGNMENTS OF ERROR IN THE STATE
SUPREME COURT OF APPEALS.  THE ASSIGNMENTS RELATING TO INTEREST FAILED
TO DRAW IN QUESTION THE CONSTITUTIONAL VALIDITY OF ANY STATUTE AS IS
REQUIRED BY SEC. 237(A) OF THE JUDICIAL CODE.  THE STATE SUPREME COURT
BY ITS ORDER REFUSING THE WRIT OF ERROR DECLARED THAT UPON
CONSIDERATION OF THE RECORD IT WAS OF OPINION THAT THE JUDGMENT BELOW
WAS "PLAINLY RIGHT." 

INSPECTION OF THE RECORD DOES NOT SHOW THAT, IN DENYING THE WRIT OF
ERROR, THE STATE COURT PASSED UPON ANY CONSTITUTIONAL QUESTION NOT
RAISED OR PASSED UPON IN THE COURSE OF THE PROCEEDINGS BELOW.  SUCH
APPEARS NOT TO BE ITS PRACTICE.  RULE 22 OF THE RULES OF THE SUPREME
COURT OF APPEALS, 181 VA. LXXV; CF. WARD CO. V. HENDERSON-WHITE CO.,
107 VA. 626, 628-629, 59 S.E. 476; BLISS V. SPENCER, 125 VA. 36, 50, 99
S.E. 593; REYNOLDS V. ADAMS, 125 VA. 295, 314, 99 S.E. 695.  ON THIS
RECORD WE CANNOT SAY THAT THE INTEREST CLAIMED WAS NOT INCLUDED IN THE
AWARD, OR, IF IT WAS NOT, THAT THE SUPREME COURT OF APPEALS OF
VIRGINIA, BY DENYING WRIT OF ERROR, PASSED UPON ANY QUESTION OF THE
CONSTITUTIONALITY OF SUCH DENIAL OF INTEREST, NOT RAISED ON THE RECORD
OR PASSED UPON BELOW.  UNLESS THIS AFFIRMATIVELY APPEARS UPON THE
RECORD BROUGHT HERE FOR REVIEW ON APPEAL, THIS COURT IS WITHOUT
JURISDICTION OF THE APPEAL.  JACOBI V. ALABAMA, 187 U.S. 133, 135-136;
MUTUAL LIFE INS. CO. V. MCGREW, 188 U.S. 291, 309; CHICAGO, I. & L.R.
CO. V. MCGUIRE, 196 U.S. 128, 131; SEE FLOURNOY V. WIENER, 321 U.S.
253, 262-263, AND CASES CITED. 

THE APPEAL MUST BE DISMISSED FOR WANT OF ANY PROPERLY PRESENTED
SUBSTANTIAL FEDERAL QUESTION.  DISMISSED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















ASBURY HOSPITAL V. CASS COUNTY, 326 U.S. 207 


NO. 35.  ARGUED OCTOBER 10, 11, 1945.  - DECIDED NOVEMBER 5, 1945.  - 73
N.D. 469, 16 N.W.2D 523, AFFIRMED IN PART. 


A STATUTE OF NORTH DAKOTA REQUIRES CORPORATIONS OWNING FARM LAND,
EXCEPT SUCH AS IS REASONABLY NECESSARY IN THE CONDUCT OF THEIR
BUSINESS, TO DISPOSE OF IT WITHIN 10 YEARS FROM THE EFFECTIVE DATE OF
THE ACT.  FARM LAND OWNED BY ANY CORPORATION IN VIOLATION OF THE ACT IS
SUBJECT TO ESCHEAT TO THE COUNTY WHEREIN SUCH LAND IS LOCATED, TO BE
EFFECTED BY A JUDICIAL PROCEEDING TO WHICH THE CORPORATION MUST BE A
PARTY.  THE COUNTY IS REQUIRED TO DISPOSE OF THE LAND AT PUBLIC SALE
WITHIN ONE YEAR AFTER ESCHEAT AND TO PAY THE PROCEEDS TO THE
CORPORATION.  APPELLANT, A FOREIGN CORPORATION OWNING FARM LAND IN
NORTH DAKOTA WHICH IT HAD ACQUIRED PRIOR TO THE EFFECTIVE DATE OF THE
ACT, SOUGHT IN THE STATE COURTS A DECLARATORY JUDGMENT OF
UNCONSTITUTIONALITY OF THE ACT AS APPLIED TO IT.  HELD: 

1.  A CORPORATION IS NOT A "CITIZEN" WITHIN THE PROTECTION OF THE
PRIVILEGES AND IMMUNITIES CLAUSES OF ARTICLE IV, SEC. 2 AND THE
FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION.  P. 210. 

2.  APPELLANT BY THE MERE ACQUISITION OF LAND WITHIN THE STATE,
BEFORE THE ENACTMENT OF THE STATUTE, DID NOT ACQUIRE CONTRACT RIGHTS
WHICH IT COULD ASSERT AGAINST THE STATE.  P. 211. 

3.  THE STATUTE DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  P. 211. 

(A)  DUE PROCESS DOES NOT PREVENT A STATE FROM EXCLUDING A FOREIGN
CORPORATION WHICH HAS THERETOFORE LAWFULLY ENTERED THE STATE AND
ACQUIRED IMMOVABLE PROPERTY THERE, THOUGH THE CORPORATION WILL THEREBY
BE COMPELLED TO SELL THE PROPERTY.  P. 211. 

(B)  THE POWER OF A STATE TO EXCLUDE A FOREIGN CORPORATION INCLUDES
THE POWER TO COMPEL THE CORPORATION TO SELL ITS IMMOVABLE PROPERTY
WITHIN THE STATE, WITHOUT ALSO REQUIRING IT TO END ALL ITS ACTIVITIES
THERE.  P. 212. 

(C)  A STATE STATUTE, OTHERWISE VALID, REQUIRING A FOREIGN
CORPORATION TO SELL PROPERTY WITHIN THE STATE, DOES NOT DENY DUE
PROCESS NOTWITHSTANDING THAT, DUE TO ECONOMIC CONDITIONS PREVAILING
SINCE ENACTMENT OF THE STATUTE, THE CORPORATION WILL NOT RECOUP ITS
ORIGINAL INVESTMENT IN THE PROPERTY.  IT IS ENOUGH THAT HERE THE
CORPORATION, IN COMPLYING WITH THE LAWFUL COMMAND OF THE STATE TO PART
WITH OWNERSHIP, IS AFFORDED A FAIR OPPORTUNITY TO REALIZE THE VALUE OF
THE LAND, AND THAT THE SALE, WHEN REQUIRED, IS TO BE UNDER CONDITIONS
REASONABLY CALCULATED TO REALIZE ITS VALUE AT THE TIME OF THE SALE.  P.
212. 

4.  THE STATUTE'S EXEMPTION OF LANDS OF CORPORATIONS WHOSE BUSINESS
IS DEALING IN FARM LANDS, AND OF LANDS OF COOPERATIVE CORPORATIONS 75%
OF WHOSE MEMBERS OR STOCKHOLDERS ARE FARMERS, DID NOT DENY TO APPELLANT
THE EQUAL PROTECTION OF THE LAWS.  P. 214. 

5.  THE QUESTIONS OF THE CONSTITUTIONALITY OF THE STATUTE BECAUSE OF
ITS (1) ALLEGED FAILURE TO REQUIRE AN ACCOUNTING OF RENTS AND PROFITS
FOR THE PERIOD BETWEEN THE JUDGMENT OF ESCHEAT AND THE SALE, AND (2)
ALLEGED EXEMPTION OF FARM LANDS ACQUIRED BY CORPORATIONS BY DEED OR
GRANT SUBSEQUENT TO THE DATE OF THE STATUTE,  - INVOLVE THE
CONSTRUCTION AND APPLICATION OF PROVISIONS OF THE STATUTE WHICH HAVE
NOT BEEN AUTHORITATIVELY CONSTRUED AND APPLIED BY THE STATE COURTS, AND
THEREFORE MAY NOT APPROPRIATELY BE DECIDED BY THIS COURT.  PP. 213,
215. 

ASBURY HOSPITAL V. CASS COUNTY ET AL. 

APPEAL FROM THE SUPREME COURT OF NORTH DAKOTA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT IN A DECLARATORY JUDGMENT
PROCEEDING, WHEREIN THE CONSTITUTIONALITY OF A STATE STATUTE, AS
APPLIED TO THE APPELLANT, WAS SUSTAINED. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

APPELLANT, A MINNESOTA NON-PROFIT CORPORATION, SOUGHT, IN THE STATE
DISTRICT COURT OF NORTH DAKOTA, A DECLARATORY JUDGMENT THAT THE SO
CALLED INITIATIVE MEASURE OF 1932, NORTH DAKOTA LAWS, 1933, PP. 494,
495, AS AMENDED BY CHAP. 89, LAWS 1933, AND CHAP. 111, LAWS 1935, IS
UNCONSTITUTIONAL AS APPLIED TO APPELLANT'S NORTH DAKOTA FARMING LANDS. 

THE CHALLENGED STATUTE DECLARES, SECS. 2, 3, THAT CORPORATIONS, BOTH
DOMESTIC AND FOREIGN, WHICH "NOW OWN OR HOLD RURAL REAL ESTATE, USED OR
USABLE, FOR FARMING OR AGRICULTURE, EXCEPT SUCH AS IS REASONABLY
NECESSARY IN THE CONDUCT OF THEIR BUSINESS, SHALL DISPOSE OF THE SAME
WITHIN TEN YEARS FROM THE DATE THAT THIS ACT TAKES EFFECT  ...," AND
THAT "THE TEN YEAR LIMITATION PROVIDED BY THIS SECTION SHALL BE DEEMED
A COVENANT, RUNNING WITH THE TITLE TO THE LAND AGAINST ANY GRANTEE,
SUCCESSOR OF (OR) ASSIGNEE OF SUCH CORPORATION, WHICH IS ALSO A
CORPORATION."  FARMING LAND IN THE STATE OWNED BY ANY CORPORATION IN
VIOLATION OF THE STATUTE IS, BY SEC. 5, MADE SUBJECT TO ESCHEAT TO THE
COUNTY IN WHICH IT IS LOCATED, BY SUIT INSTITUTED BY THE COUNTY
ATTORNEY.  THE COUNTY IS REQUIRED TO DISPOSE OF THE LAND AT PUBLIC
AUCTION TO THE HIGHEST BIDDER WITHIN ONE YEAR AFTER ESCHEAT, AND TO PAY
THE PROCEEDS, LESS THE EXPENSES OF SALE, TO THE FORMER CORPORATE
OWNER. 

APPELLANT ALLEGES IN ITS AMENDED COMPLAINT THAT PRIOR TO THE
ENACTMENT OF THE STATUTE IT HAD ACQUIRED A TRACT OF LAND WITHIN CASS
COUNTY, NORTH DAKOTA, IN SATISFACTION OF A MORTGAGE INDEBTEDNESS, AND
THAT IT HAS SINCE LEASED THE PROPERTY OUT TO FARMERS WHO HAVE USED IT
AS FARM LAND.  THE AMENDED COMPLAINT FURTHER ALLEGES THAT SINCE THE
ENACTMENT OF THE STATUTE APPELLANT HAS CONSTANTLY ATTEMPTED TO SELL
THIS TRACT, AND THAT IT HAS BEEN AND WILL BE UNABLE TO SELL IT FOR AN
AMOUNT EQUAL TO THE ORIGINAL MORTGAGE DEBT BEFORE THE EXPIRATION OF THE
STATUTORY TEN-YEAR PERIOD; THAT ANY SALE WHICH THE COUNTY, PROCEEDING
UNDER THE STATUTE, MIGHT BE ABLE TO MAKE, WOULD BE FOR SUBSTANTIALLY
LESS THAN THE AMOUNT APPELLANT HAS INVESTED IN THE LAND AND THE COSTS
OF SALE.  THE AMENDED COMPLAINT SETS UP THAT THE STATUTE, AS APPLIED TO
APPELLANT'S TRACT, VIOLATES THE PRIVILEGES AND IMMUNITIES CLAUSES OF
ARTICLE IV, SEC. 2 AND THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION, THE CONTRACT CLAUSE, ARTICLE I, SEC. 10, AND THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT, AND
PRAYS FOR A JUDGMENT THAT THE STATUTE IS UNCONSTITUTIONAL AND VOID AS
APPLIED TO APPELLANT AND FOR AN INJUNCTION RESTRAINING APPELLEE COUNTY
FROM ENFORCING THE STATUTE. 

THE SUPREME COURT OF NORTH DAKOTA SUSTAINED AN ORDER OF THE TRIAL
COURT OVERRULING APPELLEES' DEMURRER TO THE AMENDED COMPLAINT, 72 N.D.
359, 7 N.W.2D 438.  UPON REMAND OF THE CASE FOR FURTHER PROCEEDINGS,
THE TRIAL COURT FOUND THE ALLEGATIONS OF FACT SET OUT IN THE AMENDED
COMPLAINT TO BE TRUE, CONSTRUED THE STATUTE AS APPLICABLE TO
APPELLANT'S LAND, WHICH WAS HELD NOT TO BE NECESSARY TO THE CONDUCT OF
APPELLANT'S BUSINESS, AND SUSTAINED THE CONSTITUTIONALITY OF THE
STATUTE IN ALL RESPECTS.  THE SUPREME COURT OF NORTH DAKOTA AFFIRMED. 
73 N.D. 469, 16 N.W.2D 523.  THE CASE COMES HERE ON APPEAL UNDER SEC.
237(A) OF THE JUDICIAL CODE, 28 U.S.C. 344(A), APPELLANT REPEATING IN
ITS ASSIGNMENTS OF ERROR THE ATTACK MADE ON THE STATUTE BY ITS
COMPLAINT. 

APPELLANT DOES NOT INVOKE THE COMMERCE CLAUSE, AND IS NEITHER A
CITIZEN OF A STATE NOR OF THE UNITED STATES WITHIN THE PROTECTION OF
THE PRIVILEGES AND IMMUNITIES CLAUSES OF ARTICLE IV, SEC. 2 OF THE
CONSTITUTION AND THE FOURTEENTH AMENDMENT.  PAUL V. VIRGINIA, 8 WALL. 
168, 177; PEMBINA MINING CO. V. PENNSYLVANIA, 125 U.S. 181, 187;
SELOVER, BATES & CO. V. WALSH, 226 U.S. 112, 126.  THE STATE OF NORTH
DAKOTA HAS GRANTED NO CHARTER OR CERTIFICATE OF INCORPORATION TO
APPELLANT, AND HAS ISSUED TO IT NO PERMIT TO DO BUSINESS OR OWN
PROPERTY WITHIN THE STATE WHICH COULD GIVE RISE TO CONTRACT RIGHTS
WHICH APPELLANT COULD ASSERT AGAINST THE STATE.  NONE ARE TO BE IMPLIED
FROM APPELLANT'S MERE ACQUISITION OF LAND IN THE STATE EITHER BEFORE OR
AFTER THE ENACTMENT OF THE STATUTE.  ERIE R. CO. V. PENNSYLVANIA, 21
WALL.  492; CONNECTICUT MUTUAL LIFE INS. CO. V. SPRATLEY, 172 U.S. 602,
620-622; HAMMOND PACKING CO. V. ARKANSAS, 212 U.S. 322, 344-5. 

THE FOURTEENTH AMENDMENT DOES NOT DENY TO THE STATE POWER TO EXCLUDE
A FOREIGN CORPORATION FROM DOING BUSINESS OR ACQUIRING OR HOLDING
PROPERTY WITHIN IT.  HORN SILVER MINING CO. V. NEW YORK, 143 U.S. 305,
312-315; HOOPER V. CALIFORNIA, 155 U.S. 648, 652; MUNDAY V. WISCONSIN
TRUST CO., 252 U.S. 499; CRESCENT OIL CO. V. MISSISSIPPI, 257 U.S. 129,
137.  WHILE RECOGNIZING THE UNQUALIFIED POWER OF THE STATE TO PRECLUDE
ITS ENTRY INTO THE STATE FOR THESE PURPOSES, APPELLANT POINTS OUT THAT
THE STATE HAS PERMITTED IT TO ENTER AND TO INVEST ITS MONEY IN
OBLIGATIONS SECURED BY MORTGAGE ON LAND WITHIN THE STATE, IN
CONSEQUENCE OF WHICH IT LAWFULLY ACQUIRED THE LAND FREE OF
RESTRICTIONS.  APPELLANT ARGUES THAT THE STATE MAY NOT, BY LATER
LEGISLATION, FORCE A SALE OF THE LAND THUS INNOCENTLY ACQUIRED, UNDER
CONDITIONS WHICH DO NOT ALLOW RECOVERY OF THE ORIGINAL INVESTMENT.  BUT
A STATE'S POWER TO EXCLUDE A FOREIGN CORPORATION, OR TO LIMIT THE
NATURE OF THE BUSINESS IT MAY CONDUCT WITHIN THE STATE, DOES NOT END AS
SOON AS THE CORPORATION HAS LAWFULLY ENTERED THE STATE AND THERE
ACQUIRED IMMOVABLE PROPERTY.  SUBSEQUENT LEGISLATION EXCLUDING SUCH A
CORPORATION FROM CONTINUING IN THE STATE HAS BEEN SUSTAINED AS AN
EXERCISE OF THE GENERAL POWER TO EXCLUDE FOREIGN CORPORATIONS WHICH
DOES NOT OFFEND DUE PROCESS.  HAMMOND PACKING CO. V. ARKANSAS, SUPRA,
342-3; SEE ALSO BALTIC MINING CO. V. MASSACHUSETTS, 231 U.S. 68, 83. 
SIMILARLY, THIS COURT HAS UPHELD LEGISLATION IMPOSING BURDENS GREATER
THAN THOSE TO WHICH SUCH CORPORATIONS WERE SUBJECT AT THE TIME OF THEIR
ENTRY ON THE GROUND THAT THE STATE MIGHT EXCLUDE THEM ALTOGETHER AT A
LATER DATE.  PHILADELPHIA FIRE ASSOCIATION V. NEW YORK, 119 U.S. 110;
HORN SILVER MINING CO. V. NEW YORK, SUPRA; SEE ALSO CRESCENT OIL CO. V.
MISSISSIPPI, SUPRA; LINCOLN NATIONAL LIFE INS. CO. V. READ, 325 U.S.
673.  APPELLANT, EVEN IF ITS ACTIVITIES IN NORTH DAKOTA ARE NOW
RESTRICTED TO THE OWNERSHIP OF FARM LAND WITHIN THE STATE, STANDS IN NO
BETTER POSITION TO INVOKE THE PROTECTION OF THE FOURTEENTH AMENDMENT. 
THE TOTAL EXCLUSION OF A CORPORATION OWNING FIXED PROPERTY WITHIN A
STATE REQUIRES IT TO SELL OR OTHERWISE DISPOSE OF SUCH PROPERTY. 
APPELLANT MUST DO NO MORE.  WHILE APPELLANT IS NOT COMPELLED BY THE
PRESENT STATUTE TO CEASE ALL ACTIVITIES IN NORTH DAKOTA, THE GREATER
POWER INCLUDES THE LESS. 

SINCE THE STATE MAY VALIDLY REQUIRE APPELLANT TO SELL ITS FARM LAND,
THE CONTENTION THAT THE STATUTE IS WANTING IN DUE PROCESS BECAUSE
CONDITIONS HAVE BEEN SUCH SINCE ITS ENACTMENT THAT APPELLANT HAS BEEN
AND WILL BE UNABLE TO SALVAGE AN INVESTMENT MADE MORE THAN TEN YEARS
BEFORE RAISES NO SUBSTANTIAL CONSTITUTIONAL QUESTION.  THE DUE PROCESS
CLAUSE DOES NOT GUARANTEE THAT A FOREIGN CORPORATION WHEN LAWFULLY
EXCLUDED AS SUCH FROM OWNERSHIP OF LAND IN THE STATE SHALL RECAPTURE
ITS COST.  IT IS ENOUGH THAT THE CORPORATION, IN COMPLYING WITH THE
LAWFUL COMMAND OF THE STATE TO PART WITH OWNERSHIP, IS AFFORDED A FAIR
OPPORTUNITY TO REALIZE THE VALUE OF THE LAND, AND THAT THE SALE, WHEN
REQUIRED, IS TO BE UNDER CONDITIONS REASONABLY CALCULATED TO REALIZE
ITS VALUE AT THE TIME OF SALE.  NO REASON IS ADVANCED FOR SAYING, AND
WE CANNOT SAY, THAT THE PERIOD OF TEN YEARS ALLOWED TO APPELLANT TO
DISPOSE OF THE PROPERTY, OR ITS SALE AFTER TEN YEARS AT PUBLIC AUCTION
HELD UNDER DIRECTION OF THE COURT AND COMPARABLE GENERALLY TO A
MORTGAGE FORECLOSURE SALE, FAILS TO SATISFY EITHER OF THESE
CONDITIONS.  AS THE NORTH DAKOTA SUPREME COURT POINTED OUT IN ITS
OPINION, THE STATUTORY ESCHEAT OF APPELLANT'S LAND IS EFFECTED BY SUIT
TO WHICH THE CORPORATION MUST BE A PARTY, WITH FULL OPPORTUNITY TO BE
HEARD IN ADVANCE.  THE JUDGMENT OF SALE IN CONFORMITY TO THE STATUTE IS
ENTERED BY THE COURT WHICH "HAS THE POWER TO PROTECT THE RIGHTS OF THE
CORPORATION AS TO THE NOTICE AND CONDUCT OF THE SALE BY APPROPRIATE
PROVISIONS IN ITS JUDGMENT." 

APPELLANT MAKES THE FURTHER OBJECTION THAT THE STATUTE DENIES DUE
PROCESS BECAUSE IT DEPRIVES IT OF THE POSSESSION OF THE PROPERTY DURING
THE PERIOD FROM THE TIME OF ESCHEAT TO THE DATE OF PUBLIC SALE, AND
MAKES NO PROVISION FOR ANY ACCOUNTING FOR THE RENTS AND PROFITS OF THE
LAND DURING THAT PERIOD.  THE STATE'S ATTORNEY GENERAL ARGUES THAT IN
THE ESCHEAT PROCEEDING THE COURT HAS POWER TO REQUIRE AND WILL REQUIRE
SUCH AN ACCOUNTING.  THE RECORD DOES NOT DISCLOSE THAT THIS OBJECTION
WAS RAISED OR CONSIDERED BY ANY COURT IN THE COURSE OF THE PRESENT
SUIT, OR THAT ANY STATE COURT HAS CONSTRUED THE STATUTE SO AS TO
DETERMINE WHETHER A CORPORATION WHOSE LAND HAS BEEN ESCHEATED WILL BE
DEPRIVED OF THE RENTS AND PROFITS PENDING THE SALE. 

WE ARE THUS ASKED TO PASS ON THE CONSTITUTIONALITY OF A POSSIBLE
APPLICATION OF THE STATE STATUTE IN ADVANCE OF ITS APPLICATION TO
APPELLANT, AND OF ITS AUTHORITATIVE CONSTRUCTION BY THE STATE COURTS. 
LACKING SUCH CONSTRUCTION, WITHOUT WHICH NO CONSTITUTIONAL QUESTION CAN
ARISE, THE ISSUE IS NOT AN APPROPRIATE ONE FOR ADJUDICATION BY THE
DECLARATORY JUDGMENT PROCEDURE.  THIS COURT IS WITHOUT POWER TO GIVE
ADVISORY OPINIONS.  IT WILL NOT DECIDE CONSTITUTIONAL ISSUES WHICH ARE
HYPOTHETICAL, OR IN ADVANCE OF THE NECESSITY FOR DECIDING THEM, OR
WITHOUT REFERENCE TO THE MANNER IN WHICH THE STATUTE, WHOSE
CONSTITUTIONAL VALIDITY IS DRAWN IN QUESTION, IS TO BE APPLIED. 
FEDERATION OF LABOR V. MCADORY, 325 U.S. 450, 459-463, AND CASES
CITED. 

ONLY TWO OF THE EQUAL PROTECTION CONTENTIONS WHICH APPELLANT PRESSES
HERE APPEAR TO HAVE BEEN PRESENTED TO OR CONSIDERED BY THE STATE
COURTS.  THE NORTH DAKOTA SUPREME COURT HELD THAT THE STATUTE'S
EXCEPTION FROM ITS OPERATION, OF LANDS OWNED AND HELD BY CORPORATIONS
WHOSE BUSINESS IS DEALING IN FARM LANDS, (SEC. 2), AND OF THE LANDS
BELONGING TO COOPERATIVE CORPORATIONS, SEVENTY-FIVE PERCENT OF WHOSE
MEMBERS OR STOCKHOLDERS ARE FARMERS RESIDING ON FARMS, OR DEPENDING
PRINCIPALLY ON FARMING FOR THEIR LIVELIHOOD, (SEC. 4), DID NOT DENY THE
EQUAL PROTECTION CLAIMED.  WE AGREE. 

THE LEGISLATURE IS FREE TO MAKE CLASSIFICATIONS IN THE APPLICATION OF
A STATUTE WHICH ARE RELEVANT TO THE LEGISLATIVE PURPOSE.  THE ULTIMATE
TEST OF VALIDITY IS NOT WHETHER THE CLASSES DIFFER BUT WHETHER THE
DIFFERENCES BETWEEN THEM ARE PERTINENT TO THE SUBJECT WITH RESPECT TO
WHICH THE CLASSIFICATION IS MADE.  METROPOLITAN CASUALTY CO. V.
BROWNELL, 294 U.S. 580, 583, AND CASES CITED.  WE CANNOT SAY THAT THERE
ARE NO DIFFERENCES BETWEEN CORPORATIONS GENERALLY AND THOSE FALLING
INTO THE EXCEPTED CLASSES WHICH MAY APPROPRIATELY RECEIVE RECOGNITION
IN THE LEGISLATIVE APPLICATION OF A STATE POLICY AGAINST THE
CONCENTRATION OF FARMING LANDS IN CORPORATE OWNERSHIP. 

THE NORTH DAKOTA LEGISLATURE MAY HAVE THOUGHT THAT ITS POLICY WITH
REFERENCE TO CORPORATE-OWNED AGRICULTURAL LANDS WOULD BE ADVANCED BY
PERMITTING CORPORATIONS ENGAGED IN THE BUSINESS OF DEALING IN FARM
LANDS TO ACQUIRE AND SELL WITHOUT RESTRICTION LANDS FORCED UPON THE
MARKET BY THE STATUTE.  IT COULD HAVE THOUGHT THAT ITS POLICY WOULD BE
IN PART DEFEATED BY WITHHOLDING AUTHORITY FROM FARM COOPERATIVES TO
ACQUIRE AND USE FARM LANDS FOR AGRICULTURAL PURPOSES.  CF. UNITED
STATES V. ROCK ROYAL CO-OP., 307 U.S. 533, 562-564.  STATUTORY
DISCRIMINATION BETWEEN CLASSES WHICH ARE IN FACT DIFFERENT MUST BE
PRESUMED TO BE RELEVANT TO A PERMISSIBLE LEGISLATIVE PURPOSE, AND WILL
NOT BE DEEMED TO BE A DENIAL OF EQUAL PROTECTION IF ANY STATE OF FACTS
COULD BE CONCEIVED WHICH WOULD SUPPORT IT.  RAST V. VAN DEMAN & LEWIS
CO., 240 U.S. 342, 357; CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495,
509, AND CASES CITED. 

APPELLANT ALSO ASSERTS THAT THE STATUTE IMPOSES AN UNCONSTITUTIONAL
DISCRIMINATION BECAUSE SECS. 2, 3 PROVIDE THAT ANY CORPORATION WHICH
ACQUIRED FARM LAND IN ANY MANNER PRIOR TO 1932, THE EFFECTIVE DATE OF
THE ACT, OR BY JUDICIAL PROCESS OR OPERATION OF LAW THEREAFTER, IS
REQUIRED TO DISPOSE OF IT WITHIN THE TEN-YEAR PERIOD, WHILE A
CORPORATION WHICH ACQUIRED LAND BY DEED OR GRANT AFTER 1932 MAY HOLD IT
WITHOUT RESTRICTION.  BUT SEC. 4 OF CHAPTER 89 OF THE NORTH DAKOTA LAWS
OF 1933 PROVIDES:  "THAT THE TITLE AND OWNERSHIP OF ANY REAL ESTATE
ACQUIRED, IN ANY MANNER, BY ANY DOMESTIC OR FOREIGN CORPORATION, SINCE
THE APPROVAL AND ADOPTION OF THE AFORESAID INITIATED LAW, IS HEREBY
DECLARED TO BE LEGAL AND VALID FOR ALL PURPOSES, NOTWITHSTANDING ANY
PROVISIONS IN SAID INITIATED LAW CONTAINED, BUT SUBJECT HOWEVER, TO ALL
OF THE PROVISIONS NOW CONTAINED IN SAID INITIATED LAW AS HEREBY AMENDED
AND REENACTED."    THIS SECTION WAS NOT CONSTRUED BY ANY STATE COURT IN
THE PRESENT LITIGATION AND WE ARE NOT ADVISED WHY FARMING LANDS
ACQUIRED IN CONFORMITY TO SEC. 4 ARE NOT, AS THE SECTION DECLARES, MADE
"SUBJECT  ...  TO ALL OF THE PROVISIONS NOW CONTAINED" IN THE ACT AS
AMENDED, INCLUDING THOSE RELATING TO THE ESCHEAT AND SALE OF FARMING
LANDS.  NOR DOES IT APPEAR THAT ANY SUCH DISCRIMINATION IS IN FACT MADE
IN THE ENFORCEMENT OF THE STATUTE.  AS WE HAVE ALREADY POINTED OUT IN
THIS OPINION, A CONSTITUTIONAL QUESTION WHICH TURNS ON THE CONSTRUCTION
AND APPLICATION OF A STATUTE WHICH HAS NEITHER BEEN AUTHORITATIVELY
CONSTRUED NOR APPLIED BY THE STATE COURTS MAY NOT APPROPRIATELY BE
DECIDED BY THIS COURT.  FEDERATION OF LABOR V. MCADORY, SUPRA, AND
CASES CITED.    THE NORTH DAKOTA SUPREME COURT, IN ITS OPINION, AND
COUNSEL, IN BRIEF AND ARGUMENT HERE, CONFINED THEIR DISCUSSION TO THE
QUESTION WHETHER THE STATE'S POWERS OVER A FOREIGN CORPORATION AS SUCH
JUSTIFY THE COMPULSORY DISPOSITION OF ITS FARM LAND WITHIN THE STATE. 
WE NEED NOT, FOR PRESENT PURPOSES, HAVE RECOURSE TO OTHER POSSIBLE
SOURCES OF STATE POWER TO CONTROL THE OWNERSHIP AND DISPOSITION OF
PROPERTY LYING WITHIN ITS BORDERS.  WE HAVE CONSIDERED BUT FIND IT
UNNECESSARY TO DISCUSS OTHER ARGUMENTS OF LESSER MOMENT. 

WE DISMISS THE APPEAL INSOFAR AS IT DRAWS IN QUESTION THE
CONSTITUTIONALITY OF THE ACT FOR ITS ALLEGED FAILURE TO REQUIRE AN
ACCOUNTING FOR RENTS AND PROFITS OF THE LAND IN THE INTERVAL BETWEEN
THE JUDGMENT OF ESCHEAT AND THE SALE OF THE LAND, AND INSOFAR AS NORTH
DAKOTA FARMING LANDS ACQUIRED BY CORPORATIONS BY DEED OR GRANT
SUBSEQUENT TO 1932 ARE SAID TO BE EXEMPTED FROM THE OPERATION OF THE
STATUTE.  IN ALL OTHER RESPECTS THE JUDGMENT IS AFFIRMED.  SO ORDERED. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE APPEAL SHOULD BE
DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



CHICKASAW NATION V. U.S., 326 U.S. 217 


NO. 170.  DECIDED NOVEMBER 5, 1945.  - 103 CT. CLS. 1, REVERSED. 


IN A SUIT IN THE COURT OF CLAIMS BY AN INDIAN TRIBE AGAINST THE
GOVERNMENT, ITEMS OF THE GOVERNMENT'S GRATUITOUS EXPENDITURES FOR THE
BENEFIT OF THE INDIAN TRIBE WHICH, PURSUANT TO THE ACT OF AUGUST 12,
1935, ARE USED TO OFFSET THE GOVERNMENT'S LIABILITY, SHOULD BE
SPECIFICALLY DESIGNATED IN THE JUDGMENT.  P. 218. 

CHICKASAW NATION V. UNITED STATES. 

PETITION FOR CERTIORARI TO THE COURT OF CLAIMS. 

PETITION FOR A WRIT OF CERTIORARI, HEREIN GRANTED, TO REVIEW A
JUDGMENT DISMISSING A SUIT IN THE COURT OF CLAIMS. 

PER CURIAM. 

THE CHICKASAW NATION ASKS CERTIORARI TO REVIEW A JUDGMENT OF THE
COURT OF CLAIMS, 103 CT. CLS. 1, DISMISSING ITS SUIT FOR MONEYS
ALLEGEDLY OWING TO IT BY THE UNITED STATES.  SOME OF PETITIONER'S
CLAIMS WERE DENIED BELOW, BUT OTHERS, TOTALLING $22,858.78, WERE
ALLOWED.  AGAINST THIS AMOUNT THE COURT BELOW, APPLYING SEC. 2 OF THE
ACT OF AUGUST 12, 1935, 49 STAT. 571, 596, OFFSET A LIKE AMOUNT WHICH
THE COURT FOUND TO HAVE BEEN GRATUITOUSLY EXPENDED BY THE UNITED STATES
FOR THE BENEFIT OF THE NATION.  THE FINDINGS LISTED VARIOUS ITEMS OF
GRATUITY EXPENDITURES TOTALLING $69,920.39.  BUT THE JUDGMENT DID NOT
SPECIFY WHICH OF THESE ITEMS WERE BEING APPLIED AS OFFSETS TO THE
CLAIMS ALLOWED.  INSTEAD, ALL OF THE OFFSET ITEMS WERE TREATED AS
COMMINGLED IN A SINGLE GRATUITY FUND UPON WHICH THE GOVERNMENT MIGHT
DRAW FOR THE DISCHARGE OF ITS OBLIGATIONS, AS UPON A BANK ACCOUNT. 

IN SEMINOLE NATION V. UNITED STATES, 316 U.S. 286, 308, WE POINTED
OUT THAT THE GRATUITY ITEMS WHICH HAVE BEEN USED AS STATUTORY OFFSETS
TO INDIAN CLAIMS AGAINST THE GOVERNMENT SHOULD BE SPECIFICALLY
DESIGNATED IN THE JUDGMENT.  WHEN THAT COURSE IS NOT FOLLOWED, INDIAN
CLAIMANTS DESIROUS OF CHALLENGING THE ALLOWED OFFSETS ON APPEAL MUST BE
PREPARED TO ATTACK ALL THE ITEMS WHICH MAKE UP THE FUND, HOWEVER MUCH
IT MAY EXCEED THEIR CLAIMS.  MOREOVER, SUCH A JUDGMENT, BY LEAVING
UNIDENTIFIED THE PARTICULAR GRATUITIES WHICH HAVE BEEN APPLIED AS
OFFSETS, NECESSARILY ADJUDICATES THE VALIDITY FOR THAT PURPOSE OF ALL,
SINCE IT MAKES ALL PROPORTIONATELY APPLICABLE AS OFFSETS.  THERE IS NO
REASON WHY INDIAN CLAIMANTS SHOULD BE REQUIRED IN SOME SUBSEQUENT SUIT
TO MEET THE DEFENSE THAT GRATUITY ITEMS WHOSE OFFSET WAS NOT NECESSARY
TO THE RESULT IN AN EARLIER CASE HAVE NEVERTHELESS BEEN THERE FINALLY
ADJUDICATED TO BE VALID OFFSETS, OR WHY THIS COURT, IN REVIEWING THE
EARLIER JUDGMENT, SHOULD BE REQUIRED TO PASS ON THE VALIDITY OF SUCH
ITEMS AS OFFSETS.  WHEN SPECIFIED ITEMS OF GRATUITY ARE ALLOCATED AS
OFFSETS, OTHER ITEMS, INCLUDED IN THE FINDINGS BUT NOT APPLIED AS
OFFSETS, DO NOT AFFECT THE JUDGMENT, THEIR VALIDITY AS OFFSETS NEED NOT
BE REVIEWED ON APPEAL, AND THEY CREATE NO ESTOPPEL FOR FUTURE CASES. 

THE GRATUITY ITEMS INCLUDED AMONG THE FINDINGS BELOW AS AVAILABLE FOR
OFFSET ARE THERE DESCRIBED AS "INCORPORATED BY REFERENCE" FROM FINDINGS
IN A "COMPANION CASE" DECIDED BY THE COURT OF CLAIMS ON THE SAME DAY
(CHICKASAW NATION V. UNITED STATES, 103 CT. CLS. 45, CERTIORARI DENIED,
326 U.S. 751), IN WHICH NONE OF THE GRATUITIES FOUND WERE USED, NOTHING
HAVING BEEN FOUND DUE FROM THE UNITED STATES ON THE CLAIMS THERE
ADVANCED.  THE PETITION BEFORE US MAKES NO OBJECTION TO THIS PROCEDURE,
AND IN VIEW OF THE FAILURE TO APPLY SUCH ITEMS AS OFFSETS IN THE
COMPANION CASE, WE ASSUME THAT THEIR VALIDITY AS SUCH WAS OPEN TO
OBJECTION IN THE PRESENT SUIT.  WE ONLY CONCLUDE THAT THE JUDGMENT HERE
SHOULD BE IN SUCH FORM AS NOT TO COMPEL UNNECESSARY ADJUDICATION OF
SUCH OBJECTIONS ON APPEAL, OR UNNECESSARILY TO FORECLOSE CONSIDERATION
OF SUCH OBJECTIONS TO THE USE OF THESE ITEMS AS OFFSETS IN SOME FUTURE
LITIGATION. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, LIMITED TO THE
QUESTION WHETHER THE PARTICULAR GRATUITY ITEMS NECESSARILY USED AS
OFFSETS SHOULD BE DESIGNATED BY THE JUDGMENT.  THE JUDGMENT IS REVERSED
AND THE CAUSE REMANDED TO THE COURT OF CLAIMS FOR FURTHER PROCEEDINGS
IN CONFORMITY TO THIS OPINION.  SO ORDERED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















LEVERS V. ANDERSON, 326 U.S. 219 


NO. 51.  ARGUED OCTOBER 16, 1945.  - DECIDED NOVEMBER 5, 1945.  - 147
F.2D 547, REVERSED. 


1.  AN APPLICATION FOR A REHEARING BEFORE A DISTRICT SUPERVISOR OF THE
ALCOHOL TAX UNIT OF THE BUREAU OF INTERNAL REVENUE, WHO HAD ENTERED
ORDERS ANNULLING A PERMIT TO OPERATE A WHOLESALE LIQUOR BUSINESS AND
DENYING APPLICATIONS FOR IMPORTER'S AND WHOLESALER'S PERMITS, IS NOT A
PREREQUISITE TO THE JUDICIAL REVIEW SPECIFICALLY PROVIDED BY SEC. 4(H)
OF THE FEDERAL ALCOHOL ADMINISTRATION ACT.  PP. 220, 224. 

2.  HEARINGS WERE HELD AND EVIDENCE WAS TAKEN BEFORE A HEARING
COMMISSIONER, PETITIONER BEING REPRESENTED BY COUNSEL.  THE HEARING
COMMISSIONER MADE FINDINGS OF FACT WHICH WERE APPROVED BY THE DISTRICT
SUPERVISOR WITHOUT AFFORDING PETITIONER AN OPPORTUNITY TO EXCEPT TO
THEM.  ON THE BASIS OF THESE FINDINGS, THE DISTRICT SUPERVISOR ENTERED
ORDERS ANNULLING AN EXISTING PERMIT AND DENYING APPLICATIONS FOR
OTHERS, WITHOUT AFFORDING PETITIONER AN OPPORTUNITY TO ARGUE ORALLY
BEFORE HIM.  THE TREASURY REGULATIONS AUTHORIZE, BUT DO NOT REQUIRE,
THE DISTRICT SUPERVISOR TO GRANT A REHEARING.  NOR DO THEY REQUIRE HIM
TO AFFORD PETITIONER AN OPPORTUNITY, ON REHEARING, TO ARGUE ORALLY
BEFORE HIM.  NOR WAS THERE SATISFACTORY PROOF OF A PUBLICLY ESTABLISHED
PRACTICE ASSURING THAT SUCH OPPORTUNITIES WOULD BE AFFORDED.  HELD THAT
PETITIONER NEED NOT APPLY FOR SUCH AN ADMINISTRATIVE REHEARING BEFORE
SEEKING THE JUDICIAL REVIEW SPECIFICALLY PROVIDED BY THE STATUTE.  P.
223. 

LEVERS, ADMINISTRATOR, V. ANDERSON, DISTRICT SUPERVISOR, ALCOHOL TAX
UNIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 325 U.S. 844, TO REVIEW A JUDGMENT DISMISSING AN APPEAL
FROM AN ORDER OF THE DISTRICT SUPERVISOR OF THE ALCOHOL TAX UNIT OF THE
BUREAU OF INTERNAL REVENUE ANNULLING AN EXISTING PERMIT AND DENYING
OTHER PERMITS UNDER THE FEDERAL ALCOHOL ADMINISTRATION ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER'S PERMIT TO OPERATE A WHOLESALE LIQUOR BUSINESS UNDER
THE FEDERAL ALCOHOL ADMINISTRATION ACT, 49 STAT. 977, WAS ANNULLED BY
AN ORDER OF THE DISTRICT SUPERVISOR OF THE ALCOHOL TAX UNIT OF THE
BUREAU OF INTERNAL REVENUE OF THE UNITED STATES.  AT THE SAME TIME, THE
SUPERVISOR DENIED PETITIONER'S APPLICATIONS FOR AN IMPORTER'S AND A NEW
WHOLESALER'S PERMIT.  THE SUPERVISOR WAS DULY AUTHORIZED TO ACT IN
THESE MATTERS.  FN1  SECTION 4(H) OF THE ACT AUTHORIZES AN APPLICANT OR
PERMITTEE TO APPEAL TO THE CIRCUIT COURT OF APPEALS WITHIN SIXTY DAYS
AFTER THE ENTRY OF ORDERS DENYING OR ANNULLING THE PERMITS.  A PETITION
FOR APPEAL WAS FILED WITHIN SIXTY DAYS.  THE CIRCUIT COURT OF APPEALS
DISMISSED THE APPEAL, 147 F.2D 547, ON THE GROUND THAT PETITIONER HAD
FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES, SINCE HE HAD NOT FIRST
FILED A MOTION FOR RECONSIDERATION OF THE SUPERVISOR'S ORDER AS
PERMITTED BY TREASURY REGULATIONS, 26 C.F.R. CUM. SUPP. 182.255,
READING IN PART AS FOLLOWS.  FN2 

"(A)  ...  WITHIN 20 DAYS AFTER AN ORDER IS MADE BY THE COMMISSIONER
OR DISTRICT SUPERVISOR REVOKING A BASIC PERMIT, THE PERMITTEE MAY FILE
AN APPLICATION WITH SUCH COMMISSIONER OR DISTRICT SUPERVISOR, FOR A
RECONSIDERATION OF SUCH ORDER, ON ONE OR MORE OF THE FOLLOWING
GROUNDS: 

"(1)  THE ORDER IS CONTRARY TO LAW, OR 

"(2)  IS NOT SUPPORTED BY THE EVIDENCE, OR 

"(3)  BECAUSE OF NEWLY DISCOVERED EVIDENCE WHICH THE PERMITTEE, WITH
DUE DILIGENCE, WAS UNABLE TO PRODUCE AT THE HEARING." 

WE THOUGHT THE QUESTION INVOLVED IMPORTANT AND GRANTED CERTIORARI. 

WHATEVER MIGHT BE THE CASE IN OTHER CIRCUMSTANCES, IT IS CLEAR THAT
WHERE, AS HERE, JUDICIAL REVIEW IS PROVIDED IN THE ACT ITSELF, THE
PETITIONER'S RIGHT OF APPEAL TO THE COURTS IS TO BE DETERMINED BY
LOOKING TO THE STATUTE, THE VALID REGULATIONS PROMULGATED PURSUANT TO
IT AND PROVEN ADMINISTRATIVE PRACTICE THROWING LIGHT UPON THEIR
MEANING.  IN CONSTRUING THE ACT, HOWEVER, WE MUST BE MINDFUL OF THE
"LONG-SETTLED RULE OF JUDICIAL ADMINISTRATION THAT NO ONE IS ENTITLED
TO JUDICIAL RELIEF FOR A SUPPOSED OR THREATENED INJURY UNTIL THE
PRESCRIBED ADMINISTRATIVE REMEDY HAS BEEN EXHAUSTED."  MYERS V.
BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41, 50-51.  BUT THIS RULE DOES
NOT AUTOMATICALLY REQUIRE THAT JUDICIAL REVIEW MUST ALWAYS BE DENIED
WHERE REHEARING IS AUTHORIZED BUT NOT SOUGHT.  THIS IS SHOWN BY OUR
PAST DECISIONS,  FN3  FROM WHICH WE SEE NO REASON TO DEPART. 
GOVERNMENT COUNSEL, APPEARING FOR RESPONDENT, DO NOT DEFEND THE
DISMISSAL OF PETITIONER'S APPEAL ON SUCH A SWEEPING ASSUMPTION.  ON THE
CONTRARY, THEY ASSERT THAT MOTIONS FOR REHEARING BEFORE THE SAME
TRIBUNAL THAT ENTERS AN ORDER ARE UNDER NORMAL CIRCUMSTANCES MERE
FORMALITIES WHICH WASTE THE TIME OF LITIGANTS AND TRIBUNALS, TEND
UNNECESSARILY TO PROLONG THE ADMINISTRATIVE PROCESS, AND DELAY OR
EMBARRASS ENFORCEMENT OF ORDERS WHICH HAVE ALL THE CHARACTERISTICS OF
FINALITY ESSENTIAL TO APPEALABLE ORDERS. 

BUT GOVERNMENT COUNSEL INSIST THAT THE REHEARING HERE INVOLVED IS FAR
MORE THAN A FORMALITY, AND THAT WE SHOULD THEREFORE READ THE ACT AND
REGULATIONS AS IF THESE BARRED JUDICIAL REVIEW PRIOR TO AN APPLICATION
FOR A REHEARING.  FN4  OF COURSE WE RECOGNIZE THAT IN A PARTICULAR
ADMINISTRATIVE PATTERN NEW OPPORTUNITIES TO CHALLENGE AFFORDED BY THE
MOTION FOR REHEARING MAY SUBJECT AN ORDER TO SUCH CRITICAL
ADMINISTRATIVE REVIEW AS TO REDUCE IT TO THE LEVEL OF A "MERE
PRELIMINARY OR PROCEDURAL" STATUS, THEREBY DIVESTING IT OF THOSE
QUALITIES OF ADMINISTRATIVE FINALITY ESSENTIAL TO INVOCATION OF
JUDICIAL REVIEW.  FEDERAL POWER COMMISSION V. METROPOLITAN EDISON CO.,
304 U.S. 375, 384-385.  BUT WE DO NOT THINK THAT IS THE CASE HERE. 

THE ORDERS HERE CHALLENGED WERE ENTERED AFTER A HEARING AND THEY WERE
"OF A DEFINITIVE CHARACTER DEALING WITH THE MERITS OF A PROCEEDING." 
FEDERAL POWER COMMISSION V. METROPOLITAN EDISON CO., SUPRA, 384.  THE
EVIDENCE WAS TAKEN BEFORE, AND THE FINDINGS OF FACT WERE MADE BY, A
HEARING COMMISSIONER BEFORE WHOM PETITIONER WAS REPRESENTED BY
COUNSEL.  THESE FINDINGS WERE THEN APPROVED BY THE DISTRICT SUPERVISOR
WHO ENTERED THE ORDERS.  TRUE THE FINDINGS WERE APPROVED AND THE ORDERS
WERE MADE BY THE DISTRICT SUPERVISOR WITHOUT AN OPPORTUNITY TO
PETITIONER TO EXCEPT TO HIS ADVERSE FINDINGS OF FACT OR TO PRESENT ORAL
ARGUMENT TO HIM.  AND A REHEARING IF GRANTED WOULD HAVE AFFORDED
PETITIONER FOR THE FIRST TIME AN OPPORTUNITY TO SEE AND EXCEPT TO
ADVERSE FINDINGS OF FACT AND MIGHT ALSO HAVE GIVEN HIM A CHANCE TO
PRESENT ORAL ARGUMENT TO THE OFFICER WHO MADE THE ORDERS.  BUT THE
REGULATIONS ONLY PROVIDE THAT THE SUPERVISOR "MAY HEAR THE APPLICATION"
FOR A REHEARING.  FN5  NO OTHER LANGUAGE OF THE REGULATIONS, AND NO
SATISFACTORY PROOF OF PUBLICLY ESTABLISHED PRACTICE UNDER THEM,
PERSUADES US THAT THE "MAY" MEANS MUST, OR THAT THE SUPERVISORS WERE
REQUIRED TO HEAR ORAL ARGUMENT.  THUS, DESPITE THE FACT THAT THE
REGULATIONS PERMIT A STAY PENDING THE MOTION, THERE IS NO ASSURANCE
THAT A REHEARING WILL BE GRANTED, SO AS TO AFFORD AN OPPORTUNITY TO
EXCEPT TO FACT FINDINGS OR ARGUE ORALLY BEFORE THE SUPERVISOR. 
CONSEQUENTLY, WHATEVER WEIGHT SUCH FACTORS MIGHT BE ACCORDED IN
DETERMINING ADMINISTRATIVE FINALITY OF THE ORDERS IS ABSENT HERE. 

OUR CONCLUSION IS THAT THE MOTION IS IN ITS EFFECT SO MUCH LIKE THE
NORMAL, FORMAL TYPE OF MOTION FOR REHEARING THAT WE CANNOT READ INTO
THE ACT AN INTENTION TO MAKE IT A PREREQUISITE TO THE JUDICIAL REVIEW
SPECIFICALLY PROVIDED BY CONGRESS.  WHETHER THE CIRCUIT COURT OF
APPEALS WAS POSSESSED OF POWER TO EXERCISE A DISCRETION TO STAY ITS
REVIEW UNTIL AN APPLICATION WAS MADE TO THE SUPERVISOR TO GRANT A
REHEARING IS A QUESTION WHICH WAS NOT DECIDED AND UPON WHICH WE EXPRESS
NO OPINION.  SEE UNITED STATES V. ABILENE & SOUTHERN R. CO., SUPRA,
282.  REVERSED. 

FN1  53 STAT. 561; 54 STAT. 1231; 54 STAT. 230, 231; TREASURY ORDER
NO. 30, 26 C.F.R. CUM. SUPP. 171.4A, 5 FED. REG. 2212; TREAS. DECISION
4982, 26 C.F.R. CUM. SUPP. 171.4C, 5 FED. REG. 2549. 

FN2  THE CIRCUIT COURT OF APPEALS ALSO REFERRED TO THE PETITIONER'S
FAILURE TO TAKE AN APPEAL TO THE DEPUTY COMMISSIONER OF INTERNAL
REVENUE, AS ALLOWED BY AMENDED TREASURY REGULATION 182.257.  THAT
REGULATION PROVIDES THAT:  "APPEAL TO THE COMMISSIONER IS NOT
REQUIRED.  HOWEVER, THE COMMISSIONER MAY, IN HIS DISCRETION, IN ORDER
TO INSURE UNIFORMITY OF ADMINISTRATIVE ACTION, ENTERTAIN AN APPEAL,
AFTER REVIEW AND RECONSIDERATION AS PROVIDED IN SEC. 182.255, FROM AN
ORDER OF REVOCATION OF A BASIC PERMIT BY A DISTRICT SUPERVISOR, IF
FILED WITH THE COMMISSIONER WITHIN 10 DAYS OF THE DATE OF THE FINAL
ORDER."  THE GOVERNMENT CONCEDES THAT THE FIRST SENTENCE OF THIS
REGULATION, "APPEAL TO THE COMMISSIONER IS NOT REQUIRED" WAS ADDED TO
THE REGULATION AS IT ORIGINALLY STOOD FOR "THE DELIBERATE OBJECT OF
MAKING IT UNNECESSARY FOR A PARTY TO APPEAL TO THE COMMISSIONER BEFORE
GOING TO COURT."  UNDER THESE CIRCUMSTANCES WE DO NOT DISCUSS IT
FURTHER.  CF. PEORIA BRAUMEISTER CO. V. YELLOWLEY, 123 F.2D 637;
LEEBERN V. UNITED STATES, 124 F.2D 505, BOTH DECIDED BEFORE THE FIRST
SENTENCE WAS ADDED. 

FN3  UNITED STATES V. ABILENE & SOUTHERN R. CO., 265 U.S. 274, 280
282; PRENDERGAST V. NEW YORK TEL. CO., 262 U.S. 43, 48-49. 

FN4  THIS HAS BEEN EXPRESSLY DONE IN SEVERAL STATUTES.  SEE FOR
EXAMPLE 49 STAT. 860; 52 STAT. 831.  OF COURSE THE MERE FACT THAT THE
REGULATIONS MIGHT BAR JUDICIAL REVIEW IS NOT CONCLUSIVE, FOR THE COURT
WILL CONSIDER WHETHER THESE ARE CONSISTENT WITH THE LEGISLATIVE
INTENT. 

FN5  THE ONLY RELEVANT PROVISION, 26 C.F.R. CUM. SUPP. 182.255,
READS: 

"(B)  ...  THE COMMISSIONER OR DISTRICT SUPERVISOR, WITH WHOM SUCH
APPLICATION IS FILED, MAY HEAR THE APPLICATION ON A DATE AND AT A PLACE
TO BE FIXED BY HIM.  THE COMMISSIONER OR DISTRICT SUPERVISOR, AS THE
CASE MAY BE, AFTER HEARING SUCH APPLICATION, MAY EITHER AFFIRM THE
ORDER OF REVOCATION PREVIOUSLY MADE, OR MAY VACATE AND SET ASIDE SUCH
ORDER AND DISMISS THE PROCEEDINGS OR ORDER A NEW HEARING OF THE
EVIDENCE BEFORE A DESIGNATED HEARING OFFICER." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















IN RE MICHAEL, 326 U.S. 224 


NO. 38.  ARGUED OCTOBER 11, 12, 1945.  - DECIDED NOVEMBER 5, 1945.  -
146 F.2D 627, REVERSED. 


1.  A WITNESS MAY NOT BE PUNISHED FOR CONTEMPT UNDER SEC. 268 OF THE
JUDICIAL CODE FOR PERJURY ALONE.  CLARK V. UNITED STATES, 289 U.S. 1,
DISTINGUISHED.  P. 228. 

2.  NOR MAY A TRUSTEE IN BANKRUPTCY BE ADJUDGED GUILTY OF CONTEMPT
UNDER SEC. 268 OF THE JUDICIAL CODE FOR MISBEHAVIOR AS AN OFFICER OF
THE COURT IN AN OFFICIAL TRANSACTION, SOLELY ON THE GROUND THAT HE
TESTIFIED FALSELY BEFORE A GRAND JURY IN THE COURSE OF A GENERAL
INVESTIGATION OF FRAUDS AGAINST THE UNITED STATES; SINCE SUCH TESTIMONY
IS NOT AN "OFFICIAL TRANSACTION" AS TRUSTEE.  P. 229. 

IN THE MATTER OF MICHAEL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 324 U.S. 837, TO REVIEW THE AFFIRMANCE OF AN ORDER UPON
AN ADJUDICATION OF CONTEMPT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A FEDERAL DISTRICT COURT, AFTER A HEARING, ADJUDGED THAT THE
PETITIONER WAS GUILTY OF CONTEMPT ON FINDINGS THAT HE HAD GIVEN "FALSE
AND EVASIVE" TESTIMONY BEFORE A GRAND JURY WHICH "OBSTRUCTED THE SAID
GRAND JURY IN ITS INQUIRY AND THE DUE ADMINISTRATION OF JUSTICE."  A
SENTENCE OF SIX MONTHS IMPRISONMENT WAS IMPOSED.  THE CIRCUIT COURT OF
APPEALS REVIEWED THE EVIDENCE, FOUND THAT THE PETITIONER HAD NOT BEEN
"CONTUMACIOUS OR OBSTREPEROUS," HAD NOT REFUSED TO ANSWER QUESTIONS,
AND THAT HIS TESTIMONY COULD NOT "FAIRLY BE CHARACTERIZED AS
UNRESPONSIVE IN FAILING TO GIVE DIRECT ANSWERS TO THE QUESTIONS ASKED
HIM."  BUT IT ACCEPTED THE DISTRICT COURT'S FINDING THAT THE
PETITIONER'S TESTIMONY AS TO RELEVANT FACTS WAS FALSE, AND CONCLUDED
THAT IT WAS OF A TYPE TENDING TO BLOCK THE INQUIRY AND CONSEQUENTLY "AN
OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE" WITHIN THE MEANING OF
SEC. 268 OF THE JUDICIAL CODE  FN1  SO AS TO SUBJECT PETITIONER TO THE
DISTRICT COURT'S POWER TO PUNISH FOR CONTEMPT.  146 F.2D 627.  WE
GRANTED CERTIORARI TO REVIEW THIS QUESTION, IN VIEW OF THE CLOSE
SIMILARITY OF THE ISSUES HERE TO THOSE DECIDED IN EX PARTE HUDGINGS,
249 U.S. 378, A CASE IN WHICH THE DISTRICT COURT WAS HELD TO HAVE
EXCEEDED ITS CONTEMPT POWER. 

A BRIEF SUMMARY OF CIRCUMSTANCES LEADING TO THE PETITIONER'S
CONVICTION WILL HELP TO FOCUS THE ISSUES.  THE GRAND JURY UNDERTOOK A
GENERAL INVESTIGATION OF FRAUDS AGAINST THE UNITED STATES WHICH LED TO
AN INQUIRY CONCERNING ADMINISTRATION OF THE REORGANIZATION OF THE
CENTRAL FORGING COMPANY UNDER SEC. 77(B) OF THE BANKRUPTCY ACT.  THE
PETITIONER, BY APPOINTMENT OF A DISTRICT JUDGE, HAD BEEN SERVING AS
THAT COMPANY'S TRUSTEE.  WHILE BEFORE THE GRAND JURY HE WAS REPEATEDLY
INTERROGATED CONCERNING PAYMENTS OF VARIOUS AMOUNTS MADE FROM THE
BANKRUPT'S ASSETS.  HE WAS ASKED TO EXPLAIN THE PURPOSES FOR WHICH
NUMEROUS CHECKS HAD BEEN DRAWN.  AFTER WEEKS OF INQUIRY IN WHICH HE AND
OTHERS WERE INTERROGATED ABOUT THESE MATTERS, THE COURT, ON PETITION OF
THE PROSECUTION BEFORE THE GRAND JURY, ISSUED A RULE TO PETITIONER TO
SHOW CAUSE WHY AN ORDER SHOULD NOT BE MADE ADJUDGING HIM IN CONTEMPT OF
COURT FOR OBSTRUCTING THE INVESTIGATION.  UPON TRIAL BY THE COURT THE
TRANSCRIPT OF PETITIONER'S GRAND JURY TESTIMONY WAS OFFERED IN
EVIDENCE.  THE COURT THEN HEARD OTHER WITNESSES ON BEHALF OF THE
PROSECUTION WHO TESTIFIED TO FACTS WHICH DIRECTLY CONFLICTED WITH THE
PETITIONER'S EXPLANATIONS BEFORE THE GRAND JURY.  THE DISTRICT COURT,
DISBELIEVING PETITIONER AND BELIEVING THE OTHER WITNESSES, MADE ITS
FINDING THAT PETITIONER'S GRAND JURY TESTIMONY HAD BEEN FALSE.  NO
WITNESS WAS OFFERED TO INDICATE THAT THE PETITIONER IN THE GRAND JURY
ROOM HAD BEEN GUILTY OF MISCONDUCT OF ANY KIND OTHER THAN FALSE
SWEARING.  AND A READING OF THE EVIDENCE PERSUADES US THAT THE CIRCUIT
COURT OF APPEALS CORRECTLY FOUND THAT HE HAD DIRECTLY RESPONDED WITH
UNEQUIVOCAL ANSWERS.  FN2  THESE UNEQUIVOCAL ANSWERS WERE CLEAR ENOUGH
SO THAT IF THEY ARE SHOWN TO BE FALSE PETITIONER WOULD CLEARLY BE
GUILTY OF PERJURY.  BUT HE COULD HAVE BEEN INDICTED FOR THAT OFFENSE,
IN WHICH EVENT A JURY WOULD HAVE BEEN THE PROPER TRIBUNAL TO SAY
WHETHER HE OR OTHER WITNESSES TOLD THE TRUTH.  OUR QUESTION IS WHETHER
IT WAS PROPER FOR THE DISTRICT COURT TO MAKE ITS FINDING ON THAT ISSUE
THE CRUCIAL ELEMENT IN DETERMINING ITS POWER TO TRY AND CONVICT
PETITIONER FOR CONTEMPT. 

NOT VERY LONG AGO WE HAD OCCASION TO POINT OUT THAT THE ACT OF 1831,
4 STAT. 487, FROM WHICH SEC. 268 OF THE JUDICIAL CODE DERIVES,
REPRESENTED A DELIBERATE CONGRESSIONAL PURPOSE DRASTICALLY TO CURTAIL
THE RANGE OF CONDUCT WHICH COURTS COULD PUNISH AS CONTEMPT.  NYE V.
UNITED STATES, 313 U.S. 33, 44-48.  FN3  TRUE, THE ACT OF 1831 CARRIES
UPON ITS FACE THE PURPOSE TO LEAVE THE COURTS AMPLE POWER TO PROTECT
THE ADMINISTRATION OF JUSTICE AGAINST IMMEDIATE INTERRUPTION OF ITS
BUSINESS.  BUT THE REFERENCES TO THAT ACT'S HISTORY IN THE NYE CASE,
SUPRA, REVEAL A CONGRESSIONAL INTENT TO SAFEGUARD CONSTITUTIONAL
PROCEDURES BY LIMITING COURTS, AS CONGRESS IS LIMITED IN CONTEMPT
CASES, TO "THE LEAST POSSIBLE POWER ADEQUATE TO THE END PROPOSED." 
ANDERSON V. DUNN, 6 WHEAT.  204, 231.  THE EXERCISE BY FEDERAL COURTS
OF ANY BROADER CONTEMPT POWER THAN THIS WOULD PERMIT TOO GREAT INROADS
ON THE PROCEDURAL SAFEGUARDS OF THE BILL OF RIGHTS, SINCE CONTEMPTS ARE
SUMMARY IN THEIR NATURE, AND LEAVE DETERMINATION OF GUILT TO A JUDGE
RATHER THAN A JURY.  IT IS IN THIS CONSTITUTIONAL SETTING THAT WE MUST
RESOLVE THE ISSUES HERE RAISED. 

ALL PERJURED RELEVANT TESTIMONY IS AT WAR WITH JUSTICE, SINCE IT MAY
PRODUCE A JUDGMENT NOT RESTING ON TRUTH.  THEREFORE IT CANNOT BE DENIED
THAT IT TENDS TO DEFEAT THE SOLE ULTIMATE OBJECTIVE OF A TRIAL.  IT
NEED NOT NECESSARILY, HOWEVER, OBSTRUCT OR HALT THE JUDICIAL PROCESS. 
FOR THE FUNCTION OF TRIAL IS TO SIFT THE TRUTH FROM A MASS OF
CONTRADICTORY EVIDENCE, AND TO DO SO THE FACT-FINDING TRIBUNAL MUST
HEAR BOTH TRUTHFUL AND FALSE WITNESSES.  IT IS IN THIS SENSE,
DOUBTLESS, THAT THIS COURT SPOKE WHEN IT DECIDED THAT PERJURY ALONE
DOES NOT CONSTITUTE AN "OBSTRUCTION" WHICH JUSTIFIES EXERTION OF THE
CONTEMPT POWER AND THAT THERE "MUST BE ADDED TO THE ESSENTIAL ELEMENTS
OF PERJURY UNDER THE GENERAL LAW THE FURTHER ELEMENT OF OBSTRUCTION TO
THE COURT IN THE PERFORMANCE OF ITS DUTY."  EX PARTE HUDGINGS, SUPRA,
382, 383, 384.  AND THE COURT ADDED, "THE PRESENCE OF THAT ELEMENT
(OBSTRUCTION) MUST CLEARLY BE SHOWN IN EVERY CASE WHERE THE POWER TO
PUNISH FOR CONTEMPT IS EXERTED." 

CLARK V. UNITED STATES, 289 U.S. 1, IS A CASE IN WHICH THE COURT
FOUND THAT ELEMENT "CLEARLY SHOWN."  IN THAT CASE, THE COURT FOUND THAT
A PROSPECTIVE JUROR HAD TESTIFIED FALSELY IN ORDER TO QUALIFY DESPITE
THE FACT THAT SHE WAS A PARTISAN WHO WOULD VOTE FOR A VERDICT OF NOT
GUILTY REGARDLESS OF EVIDENCE OF GUILT.  IT IS DIFFICULT TO CONCEIVE OF
A MORE EFFECTIVE OBSTRUCTION TO THE JUDICIAL PROCESS THAN A JUROR WHO
HAS PREJUDGED THE CASE.  FOR THIS PREVENTS THE VERY FORMATION OF A
PROPER JUDICIAL TRIBUNAL.  AS THE COURT SAID IN THE CLARK CASE, "THE
DOOM OF MERE STERILITY WAS ON THE TRIAL FROM THE BEGINNING."  P. 11. 
PERJURY WAS NOT EVEN THE BASIS OF THE CONVICTION.  THE COURT'S OPINION
MAKES IT CLEAR THAT THE OBSTRUCTION WOULD HAVE BEEN THE SAME HAD THE
PARTISAN PLAN TO THWART JUSTICE BEEN CARRIED OUT WITHOUT ANY SWEARING
AT ALL.  OF COURSE THE MERE FACT THAT FALSE SWEARING IS AN INCIDENT TO
THE OBSTRUCTION CHARGED DOES NOT IMMUNIZE THE CULPRIT FROM CONTEMPT
PROCEEDINGS.  CERTAINLY THAT POSITION OFFERS NO SUPPORT FOR THE PRESENT
CONVICTION. 

HERE THERE WAS, AT BEST, NO ELEMENT EXCEPT PERJURY "CLEARLY SHOWN." 
NOR NEED WE CONSIDER CASES LIKE UNITED STATES V. APPEL, 211 F. 495,
496, PRESSED UPON US BY THE GOVERNMENT.  FOR THERE THE COURT THOUGHT
THAT THE TESTIMONY OF APPEL WAS "ON ITS MERE FACE, AND WITHOUT INQUIRY
COLLATERALLY, ...  NOT A BONA FIDE EFFORT TO ANSWER THE QUESTIONS AT
ALL."  IN THE INSTANT CASE THERE WAS COLLATERAL INQUIRY; THE TESTIMONY
OF OTHER WITNESSES WAS INVOKED TO CONVINCE THE TRIAL JUDGE THAT
PETITIONER WAS A PERJURER.  ONLY AFTER DETERMINING FROM THEIR TESTIMONY
THAT PETITIONER HAD WILFULLY SWORN FALSELY, DID THE COURT CONCLUDE THAT
PETITIONER WAS "BLOCKING THE INQUIRY JUST AS EFFECTIVELY BY GIVING A
FALSE ANSWER AS REFUSING TO GIVE ANY AT ALL."  THIS WAS THE EQUIVALENT
OF SAYING THAT FOR PERJURY ALONE A WITNESS MAY BE PUNISHED FOR
CONTEMPT.  SEC. 268 IS NOT AN ATTEMPT TO GRANT SUCH POWER. 

NOR CAN THE CONVICTION BE UPHELD UNDER THAT PART OF SEC. 268 WHICH
AUTHORIZES PUNISHMENT FOR CONTEMPTS WHICH CONSIST OF "THE MISBEHAVIOR
OF ANY OF THE OFFICERS OF SAID COURTS IN THEIR OFFICIAL TRANSACTIONS." 
WHILE THE PETITIONER WAS A TRUSTEE, AND WE MAY ASSUME AN OFFICER OF THE
COURT WITHIN THE STATUTORY MEANING, HE WAS NOT ENGAGED IN AN "OFFICIAL
TRANSACTION" AS TRUSTEE WHEN HE TESTIFIED BEFORE THE GRAND JURY IN THE
COURSE OF A GENERAL INQUIRY.  WHETHER HE COULD BE PUNISHED FOR CONTEMPT
FOR GIVING PERJURED TESTIMONY IN THE COURSE OF PROCEEDINGS DIRECTLY
INVOLVING ADMINISTRATION OF THE ESTATE IS ANOTHER MATTER NOT NOW BEFORE
US. 

THE JUDGMENTS OF THE CIRCUIT COURT OF APPEALS AND THE DISTRICT COURT
ARE REVERSED. 

FN1  SECTION 268 PROVIDES IN PART THAT THE "POWER TO PUNISH CONTEMPTS
SHALL NOT BE CONSTRUED TO EXTEND TO ANY CASES EXCEPT THE MISBEHAVIOR OF
ANY PERSON IN THEIR PRESENCE, OR SO NEAR THERETO AS TO OBSTRUCT THE
ADMINISTRATION OF JUSTICE,  ...  AND THE DISOBEDIENCE OR RESISTANCE BY
ANY  ... WITNESS, OR OTHER PERSON TO ANY LAWFUL WRIT, PROCESS, ORDER,
RULE, DECREE, OR COMMAND OF THE SAID COURTS." 

FN2  IT IS TRUE THAT WHEN PETITIONER WAS FIRST ASKED WHETHER HE DREW
CERTAIN CHECKS ON SPECIFIED DATES HE ANSWERED THAT HE COULD NOT BE SURE
IN VIEW OF THE NUMBER OF CHECKS HE DREW.  WHEN THE PARTICULAR CHECKS
WERE MORE SPECIFICALLY POINTED OUT PETITIONER DID OFFER EXPLANATIONS,
WHICH THOUGH THEY MIGHT HAVE BEEN FALSE, NEVERTHELESS CONSTITUTED
CLEARCUT ANSWERS. 

FN3  SEE ALSO AS TO THIS HISTORICAL PURPOSE, NELLES AND KING,
CONTEMPT BY PUBLICATION IN THE UNITED STATES, 28 COL. L. REV. 401 ET
SEQ.; 525 ET SEQ.; FOX, THE HISTORY OF CONTEMPT OF COURT (1927). 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






EAST NEW YORK BANK V. HAHN, 326 U.S. 230 


NO. 62.  ARGUED OCTOBER 18, 1945.  - DECIDED NOVEMBER 5, 1945.  - 293
N.Y. 622, 59 N.E.2D 625, AFFIRMED. 


1.  CHAPTER 93 OF THE LAWS OF NEW YORK OF 1943, WHICH EXTENDED FOR A
FURTHER PERIOD OF ONE YEAR MORATORY LEGISLATION FIRST ENACTED IN 1933,
WHEREBY AS TO MORTGAGES EXECUTED PRIOR TO JULY 1, 1932 THE RIGHT OF
FORECLOSURE FOR DEFAULT IN THE PAYMENT OF PRINCIPAL WAS SUSPENDED, HELD
NOT REPUGNANT TO THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION.  PP.
231, 234. 

2.  THE INCIDENCE OF MORTGAGE MORATORIUM LEGISLATION ON AN ISOLATED
CONTRACT MUST BE CONSIDERED IN THE LIGHT OF THE RIGHT OF THE STATE TO
SAFEGUARD THE INTERESTS OF ITS PEOPLE.  P. 232. 

3.  HOME BLDG. ASSN. V. BLAISDELL, 290 U.S. 398, AND LATER CASES,
FOLLOWED; CHASTLETON CORP. V. SINCLAIR, 264 U.S. 543, DIFFERENTIATED. 
PP. 231, 235. 

EAST NEW YORK SAVINGS BANK V. HAHN ET UX. 

APPEAL FROM THE SUPREME COURT OF NEW YORK, COUNTY OF KINGS. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT (182 MISC. 863) WHICH, IN AN
ACTION TO FORECLOSE A MORTGAGE FOR NONPAYMENT OF PRINCIPAL, SUSTAINED
THE CONSTITUTIONALITY OF A STATE STATUTE SUSPENDING THE RIGHT OF
FORECLOSURE. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS WAS AN ACTION BEGUN IN 1944 TO FORECLOSE A MORTGAGE ON REAL
PROPERTY IN THE CITY OF NEW YORK FOR NONPAYMENT OF PRINCIPAL THAT HAD
BECOME DUE IN 1924.  THE TRIAL COURT HELD THAT THE FORECLOSURE
PROCEEDING WAS BARRED BY THE APPLICABLE NEW YORK MORATORIUM LAW.  182
MISC. 863, 51 N.Y.S.2D 496.  THIS LAW, CHAPTER 93 OF THE LAWS OF NEW
YORK OF 1943, EXTENDED FOR ANOTHER YEAR LEGISLATION FIRST ENACTED IN
1933, WHEREBY THE RIGHT OF FORECLOSURE FOR DEFAULT IN THE PAYMENT OF
PRINCIPAL WAS SUSPENDED FOR A YEAR AS TO MORTGAGES EXECUTED PRIOR TO
JULY 1, 1932.  FN1  YEAR BY YEAR (EXCEPT IN 1941 WHEN AN EXTENSION FOR
TWO YEARS WAS MADE), THE 1933 STATUTE WAS RENEWED FOR ANOTHER YEAR. 
THE NEW YORK COURT OF APPEALS, ONE JUDGE DISSENTING, AFFIRMED THE TRIAL
COURT'S JUDGMENT.  293 N.Y. 622, 59 N.E.2D 625.  UPON CLAIM DULY MADE
BELOW THAT THE MORATORIUM LAW OF 1943 WAS REPUGNANT TO THE CONTRACT
CLAUSE OF THE CONSTITUTION OF THE UNITED STATES, ART. I, SEC. 10, THE
CASE IS HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE, 28
U.S.C. SEC. 344(A).  THE VALIDITY OF THE STATUTE IS LIKEWISE CHALLENGED
UNDER THE FOURTEENTH AMENDMENT BUT TOO FEEBLY TO MERIT CONSIDERATION. 

SINCE HOME BLDG. & L. ASSN. V. BLAISDELL, 290 U.S. 398, THERE ARE
LEFT HARDLY ANY OPEN SPACES OF CONTROVERSY CONCERNING THE
CONSTITUTIONAL RESTRICTIONS OF THE CONTRACT CLAUSE UPON MORATORY
LEGISLATION REFERABLE TO THE DEPRESSION.  THE COMPREHENSIVE OPINION OF
MR. CHIEF JUSTICE HUGHES IN THAT CASE CUT BENEATH THE SKIN OF WORDS TO
THE CORE OF MEANING.  AFTER A FULL REVIEW OF THE WHOLE COURSE OF
DECISIONS EXPOUNDING THE CONTRACT CLAUSE - COVERING ALMOST THE LIFE OF
THIS COURT - THE CHIEF JUSTICE, DRAWING ON THE EARLY INSIGHT OF MR.
JUSTICE JOHNSON  FN2  IN OGDEN V. SAUNDERS, 12 WHEAT.  213, 286, AS
REINFORCED BY LATER DECISIONS CAST IN MORE MODERN TERMS, E.G.,
MANIGAULT V. SPRINGS, 199 U.S. 473, 480; MARCUS BROWN CO. V. FELDMAN,
256 U.S. 170, 198, PUT THE CLAUSE IN ITS PROPER PERSPECTIVE IN OUR
CONSTITUTIONAL FRAMEWORK.  THE BLAISDELL CASE AND DECISIONS RENDERED
SINCE (E.G., HONEYMAN V. JACOBS, 306 U.S. 539; VEIX V. SIXTH WARD
ASSN., 310 U.S. 32; GELFERT V. NATIONAL CITY BANK, 313 U.S. 221;
FAITOUTE CO. V. ASBURY PARK, 316 U.S. 502), YIELD THIS GOVERNING
CONSTITUTIONAL PRINCIPLE:  WHEN A WIDELY DIFFUSED PUBLIC INTEREST HAS
BECOME ENMESHED IN A NETWORK OF MULTITUDINOUS PRIVATE ARRANGEMENTS, THE
AUTHORITY OF THE STATE "TO SAFEGUARD THE VITAL INTERESTS OF ITS
PEOPLE," 290 U.S. AT 434, IS NOT TO BE GAINSAID BY ABSTRACTING ONE SUCH
ARRANGEMENT FROM ITS PUBLIC CONTEXT AND TREATING IT AS THOUGH IT WERE
AN ISOLATED PRIVATE CONTRACT CONSTITUTIONALLY IMMUNE FROM IMPAIRMENT. 

THE FORMAL MODE OF REASONING BY MEANS OF WHICH THIS "PROTECTIVE POWER
OF THE STATE," 290 U.S. AT 440, IS ACKNOWLEDGED IS OF LITTLE MOMENT. 
IT MAY BE TREATED AS AN IMPLIED CONDITION OF EVERY CONTRACT AND, AS
SUCH, AS MUCH PART OF THE CONTRACT AS THOUGH IT WERE WRITTEN INTO IT,
WHEREBY THE STATE'S EXERCISE OF ITS POWER ENFORCES, AND DOES NOT
IMPAIR, A CONTRACT.  A MORE CANDID STATEMENT IS TO RECOGNIZE, AS WAS
SAID IN MANIGAULT V. SPRINGS, SUPRA, THAT THE POWER "WHICH IN ITS
VARIOUS RAMIFICATIONS IS KNOWN AS THE POLICE POWER, IS AN EXERCISE OF
THE SOVEREIGN RIGHT OF THE GOVERNMENT TO PROTECT THE  ...  GENERAL
WELFARE OF THE PEOPLE, AND IS PARAMOUNT TO ANY RIGHTS UNDER CONTRACTS
BETWEEN INDIVIDUALS."  199 U.S. AT 480.  ONCE WE ARE IN THIS DOMAIN OF
THE RESERVE POWER OF A STATE WE MUST RESPECT THE "WIDE DISCRETION ON
THE PART OF THE LEGISLATURE IN DETERMINING WHAT IS AND WHAT IS NOT
NECESSARY."  IBID.  SO FAR AS THE CONSTITUTIONAL ISSUE IS CONCERNED,
"THE POWER OF THE STATE WHEN OTHERWISE JUSTIFIED," MARCUS BROWN CO. V.
FELDMAN, 256 U.S. 170, 198, IS NOT DIMINISHED BECAUSE A PRIVATE
CONTRACT MAY BE AFFECTED. 

APPLYING THESE CONSIDERATIONS TO THE IMMEDIATE SITUATION BRINGS US TO
A QUICK CONCLUSION.  IN 1933, NEW YORK BEGAN A SERIES OF MORATORY
ENACTMENTS TO COUNTERACT THE VIRULENT EFFECTS OF THE DEPRESSION UPON
NEW YORK REALTY WHICH HAVE BEEN SPREAD TOO OFTEN UPON THE RECORDS OF
THIS COURT TO REQUIRE EVEN A SUMMARY.  CHAPTER 793 OF THE LAWS OF 1933
GAVE A YEAR'S GRACE AGAINST FORECLOSURES OF MORTGAGES, BUT IT OBLIGATED
THE MORTGAGOR TO PAY TAXES, INSURANCE, AND INTEREST.  THE VALIDITY OF
THE STATUTE WAS SUSTAINED IN KLINKE V. SAMUELS, 264 N.Y. 144, 190 N.E.
324.  THE MORATORIUM HAS BEEN EXTENDED FROM YEAR TO YEAR.  WHEN THE
1937 REENACTMENT WAS QUESTIONED, THE NEW YORK COURT OF APPEALS AGAIN
UPHELD THE LEGISLATION.  MAGUIRE & CO. V. LENT & LENT, INC., 277 N.Y.
694, 14 N.E.2D 629.  THIS DECISION WAS RENDERED AFTER A JOINT
LEGISLATIVE COMMITTEE HAD MADE A THOROUGH STUDY AND RECOMMENDED
CONTINUANCE OF THE MORATORIUM.  NEW YORK LEGISLATIVE DOCUMENT (1938)
NO. 58.  IN 1941, THE LEGISLATURE REFLECTED SOME CHANGES IN ECONOMIC
CONDITIONS BY REQUIRING AMORTIZATION OF THE PRINCIPAL AT THE RATE OF 1%
PER ANNUM, BEGINNING WITH JULY 1, 1942.  THE SAME LEGISLATURE
ESTABLISHED ANOTHER JOINT LEGISLATIVE COMMITTEE TO REVIEW ONCE MORE THE
NEW YORK MORTGAGE SITUATION.  "AFTER A MOST EXHAUSTIVE STUDY OF THE
MORATORIUM," A REPORT WAS SUBMITTED RECOMMENDING ITS EXTENSION FOR
ANOTHER YEAR.  NEW YORK LEGISLATIVE DOCUMENT (1942) NO. 45.  THE
GOVERNOR OF NEW YORK URGED SUCH LEGISLATION (NEW YORK LEGISLATIVE
DOCUMENT (1943) NO. 1, P. 9) AND THE LAW NOW UNDER ATTACK WAS ENACTED. 
IT IS RELEVANT TO NOTE THAT THE NEW YORK LEGISLATURE IN SUBSEQUENT
EXTENSIONS OF THE MORATORIUM AGAIN TOOK NOTE OF CHANGED ECONOMIC
CONDITIONS BY INCREASING THE AMORTIZATION RATE TO 2% IN 1944(L. 1944,
C. 562) AND TO 3% IN 1945(L. 1945, C. 378). 

APPELLANT ASKS US TO REJECT THE JUDGMENT OF THE JOINT LEGISLATIVE
COMMITTEE, OF THE GOVERNOR, AND OF THE LEGISLATURE, THAT THE PUBLIC
WELFARE, IN THE CIRCUMSTANCES OF NEW YORK CONDITIONS, REQUIRES THE
SUSPENSION OF MORTGAGE FORECLOSURES FOR ANOTHER YEAR.  ON THE BASIS OF
EXPERT OPINION, DOCUMENTARY EVIDENCE, AND ECONOMIC ARGUMENTS OF WHICH
WE ARE TO TAKE JUDICIAL NOTICE, IT URGES SUCH A CHANGE IN ECONOMIC AND
FINANCIAL AFFAIRS IN NEW YORK AS TO DEPRIVE OF ALL JUSTIFICATION THE
DETERMINATION OF NEW YORK'S LEGISLATURE OF WHAT NEW YORK'S WELFARE
REQUIRES.  WE ARE INVITED TO ASSESS NOT ONLY THE RANGE AND INCIDENCE OF
WHAT ARE CLAIMED TO BE DETERMINING ECONOMIC CONDITIONS INSOFAR AS THEY
AFFECT THE MORTGAGE MARKET - BANK DEPOSITS AND WAR SAVINGS BONDS;
INCREASED PAYROLLS AND STORE SALES; AVAILABLE MORTGAGE MONEY AND RISE
IN REAL ESTATE VALUES - BUT ALSO TO RESOLVE CONTROVERSY AS TO THE
CAUSES AND CONTINUITY OF SUCH IMPROVEMENTS, NAMELY THE EFFECT OF THE
WAR AND OF ITS TERMINATION, AND SIMILAR MATTERS.  MERELY TO ENUMERATE
THE ELEMENTS THAT HAVE TO BE CONSIDERED SHOWS THAT THE PLACE FOR
DETERMINING THEIR WEIGHT AND THEIR SIGNIFICANCE IS THE LEGISLATURE NOT
THE JUDICIARY.  UNLIKE WORTHEN CO. V. KAVANAUGH, 295 U.S. 56, 60, HERE
THERE WAS NO "STUDIED INDIFFERENCE TO THE INTERESTS OF THE MORTGAGEE OR
TO HIS APPROPRIATE PROTECTION."  HERE THE LEGISLATURE WAS NOT EVEN
ACTING MERELY UPON THE POOLED GENERAL KNOWLEDGE OF ITS MEMBERS.  THE
WHOLE COURSE OF THE NEW YORK MORATORIUM LEGISLATION SHOWS THE EMPIRIC
PROCESS OF LEGISLATION AT ITS FAIREST:  FREQUENT RECONSIDERATION,
INTENSIVE STUDY OF THE CONSEQUENCES OF WHAT HAS BEEN DONE, READJUSTMENT
TO CHANGING CONDITIONS, AND SAFEGUARDING THE FUTURE ON THE BASIS OF
RESPONSIBLE FORECASTS.  THE NEW YORK LEGISLATURE WAS ADVISED BY THOSE
HAVING SPECIAL RESPONSIBILITY TO INFORM IT THAT "THE SUDDEN TERMINATION
OF THE LEGISLATION WHICH HAS DAMMED UP NORMAL LIQUIDATION OF THESE
MORTGAGES FOR MORE THAN EIGHT YEARS MIGHT WELL RESULT IN AN EMERGENCY
MORE ACUTE THAN THAT WHICH THE ORIGINAL LEGISLATION WAS INTENDED TO
ALLEVIATE."  NEW YORK LEGISLATIVE DOCUMENT (1942) NO. 45, P. 25.  IT
WOULD INDEED BE STRANGE IF THERE WERE ANYTHING IN THE CONSTITUTION OF
THE UNITED STATES WHICH DENIED THE STATE THE POWER TO SAFEGUARD ITS
PEOPLE AGAINST SUCH DANGERS.  THERE IS NOTHING.  JUSTIFICATION FOR THE
1943 ENACTMENT IS NOT NEGATIVED BECAUSE THE FACTORS THAT INDUCED AND
CONSTITUTIONALLY SUPPORTED ITS ENACTMENT WERE DIFFERENT FROM THOSE
WHICH INDUCED AND SUPPORTED THE MORATORIUM STATUTE OF 1933. 

IT ONLY REMAINS TO SAY THAT IN CHASTLETON CORP. V. SINCLAIR, 264 U.S.
543, WHICH WAS STRONGLY PRESSED ON US, THE COURT DEALT WITH QUITE A
DIFFERENT SITUATION.  THE DIFFERENTIATING FACTORS ARE TOO GLARING TO
REQUIRE EXPOSITION.  JUDGMENT AFFIRMED. 

FN1  THE 1943 MORATORIUM LAW MADE THE PAYMENT OF INTEREST, TAXES,
INSURANCE, AND AMORTIZATION CHARGES A PREREQUISITE TO SUSPENSION OF
FORECLOSURE.  THESE CONDITIONS CONCEDEDLY WERE MET AND THE ONLY DEFAULT
HERE WAS IN UNPAID PRINCIPAL. 

FN2  FOR MR. JUSTICE JOHNSON'S CONSTITUTIONAL VIEWS REGARDING THE
SCOPE AND LIMITS OF THE CONTRACT CLAUSE, SEE MORGAN, MR. JUSTICE
WILLIAM JOHNSON AND THE CONSTITUTION (1944) 57 HARV. L. REV. 328, 352
ET SEQ., AND HALE, THE SUPREME COURT AND THE CONTRACT CLAUSE:  III
(1944) 57 HARV. L. REV. 852, 872 ET SEQ. SEE ALSO LEVIN, MR. JUSTICE
WILLIAM JOHNSON AND THE UNENVIABLE DILEMMA (1944) 42 MICH. L. REV. 803;
MR. JUSTICE WILLIAM JOHNSON, CREATIVE DISSENTER (1944) 43 MICH. L. REV.
497; MR. JUSTICE WILLIAM JOHNSON AND THE COMMON INCIDENTS OF LIFE
(1945) 44 MICH. L. REV. 59. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



U.S. V. DETROIT NAVIGATION CO., 326 U.S. 236 


NO. 22.  ARGUED OCTOBER 9, 10, 1945.  - DECIDED NOVEMBER 5, 1945.  - 57
F.SUPP.  81, REVERSED. 


APPLICATION WAS MADE TO THE INTERSTATE COMMERCE COMMISSION UNDER SEC.
309(C) OF PART III OF THE INTERSTATE COMMERCE ACT FOR A CERTIFICATE OF
CONVENIENCE AND NECESSITY TO OPERATE AS COMMON CARRIERS OF MOTOR
VEHICLES BY WATER ON THE GREAT LAKES.  IT WAS OPPOSED BY APPELLEES, WHO
HAD BEEN ENGAGED IN SUCH SERVICE BEFORE THE WAR.  THE GOVERNMENT HAD
REQUISITIONED MANY VESSELS OF THE APPELLEES, LEAVING TWO OF THEM WITH
NO AUTOMOBILE CARRIERS AND THE THIRD WITH ONLY NINE VESSELS, FIVE OF
WHICH WERE OWNED BY AND OPERATED FOR THE GOVERNMENT.  APPLICANTS OWNED
FREE OF ENCUMBRANCE THREE VESSELS WHICH HAD BEEN USED EXTENSIVELY
BEFORE THE WAR AS AUTOMOBILE CARRIERS, MOSTLY UNDER CHARTER TO ONE OF
THE APPELLEES.  THEY HAD BEEN CONVERTED FOR CARRYING BULK TRAFFIC BUT
COULD READILY BE RECONVERTED TO HANDLE AUTOMOBILE TRAFFIC.  THE
COMMISSION FOUND THAT BEFORE THE WAR THERE WERE INSUFFICIENT FACILITIES
FOR THIS PURPOSE DURING PEAK PERIODS, THAT THERE HAD BEEN A DEFINITE
NEED FOR THE CARRYING CAPACITY OF APPLICANTS' VESSELS, THAT THERE WAS A
REASONABLE CERTAINTY THAT A LIKE NEED WOULD ARISE WHEN PRODUCTION OF
AUTOMOBILES FOR CIVILIANS WAS RESUMED, THAT THERE WAS CONSIDERABLE
UNCERTAINTY AS TO THE TIME IT WOULD TAKE FOR APPELLEES TO PROCURE
ADDITIONAL VESSELS AND PLACE THEM IN OPERATION, AND THAT THE PUBLIC
INTEREST WOULD BE ADVERSELY AFFECTED IF APPELLEES WERE DELAYED IN
ACQUIRING THE ADDITIONAL FACILITIES NEEDED.  IT HELD THAT THE PROPOSED
SERVICE WOULD BE REQUIRED BY FUTURE PUBLIC CONVENIENCE AND NECESSITY
AND GRANTED THE CERTIFICATE.  ITS ACTION WAS CHALLENGED BY APPELLEES. 
HELD: 

1.  THE COMMISSION ACTED WITHIN ITS STATUTORY AUTHORITY AND
ADMINISTRATIVE DISCRETION IN GRANTING THE CERTIFICATE.  P. 241. 

2.  A POSITIVE FINDING BY THE COMMISSION OF AN ACTUAL INABILITY OF
EXISTING CARRIERS TO ACQUIRE THE NECESSARY FACILITIES TO MEET FUTURE
TRANSPORTATION NEEDS IS NOT A PREREQUISITE TO THE GRANTING OF SUCH A
CERTIFICATE.  P. 240. 

3.  THE COMMISSION HAS BEEN ENTRUSTED WITH A WIDE RANGE OF
DISCRETIONARY AUTHORITY IN DETERMINING WHETHER TO GRANT SUCH
CERTIFICATES.  P. 241. 

4.  ITS FUNCTION IS NOT ONLY TO APPRAISE THE FACTS AND DRAW
INFERENCES FROM THEM BUT ALSO TO EXERCISE AN EXPERT JUDGMENT AND TO
DETERMINE FROM ITS ANALYSIS OF THE TOTAL SITUATION ON WHICH SIDE OF THE
CONTROVERSY THE PUBLIC INTEREST LIES.  P. 241. 

5.  IT IS ENTITLED TO CONSIDER THE MARGIN OF SAFETY WHICH THE PUBLIC
INTEREST REQUIRES FOR THE RESUMPTION OF AN INTERRUPTED SERVICE; AND IT
HAS DISCRETION TO CONCLUDE THAT FUTURE SHIPPING NEEDS SHOULD BE ASSURED
RATHER THAN LEFT UNCERTAIN.  PP. 240, 241. 

UNITED STATES ET AL. V. DETROIT & CLEVELAND NAVIGATION CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF MICHIGAN. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES SETTING
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION GRANTING A
CERTIFICATE OF CONVENIENCE AND NECESSITY TO OPERATE AS COMMON CARRIERS
OF MOTOR VEHICLES BY WATER ON THE GREAT LAKES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE INTERSTATE COMMERCE COMMISSION PURSUANT TO SEC. 309(C) OF PART
III OF THE INTERSTATE COMMERCE ACT (54 STAT. 941, 49 U.S.C. SEC.
909(C)) GRANTED TO T.J. MCCARTHY STEAMSHIP CO. AND AUTOMOTIVE TRADES
STEAMSHIP CO. (WHOM WE WILL CALL THE APPLICANTS) A CERTIFICATE OF
CONVENIENCE AND NECESSITY TO OPERATE AS COMMON CARRIERS IN THE
TRANSPORTATION BY WATER OF MOTOR VEHICLES FROM DETROIT, MICHIGAN TO
PORTS ON LAKE ERIE AND LAKE SUPERIOR.  FN1  260 I.C.C. 175.  THE
APPELLEES, WHO WERE PROTESTANTS IN THE PROCEEDING BEFORE THE COMMISSION
AND WHO ARE COMMON CARRIERS OF MOTOR VEHICLES BY VESSELS ON THE GREAT
LAKES, CHALLENGED THAT ORDER BEFORE A DISTRICT COURT OF THREE JUDGES. 
THAT COURT SET ASIDE THE COMMISSION'S ORDER.  57 F.SUPP.  81.  THE CASE
IS HERE ON APPEAL.  FN2 

WORLD WAR II CAUSED THE CESSATION OF THE PRODUCTION OF MOTOR VEHICLES
FOR CIVILIAN USE.  PRIOR TO THAT TIME APPELLEES AS COMMON CARRIERS HAD
TRANSPORTED MOTOR VEHICLES BY VESSELS FROM DETROIT TO VARIOUS PORTS ON
THE GREAT LAKES.  THE APPLICANTS OWNED THREE VESSELS EQUIPPED AS
AUTOMOBILE CARRIERS.  THESE VESSELS WERE USED EXTENSIVELY PRIOR TO THE
WAR IN TRANSPORTING AUTOMOBILES FROM DETROIT TO LAKE ERIE PORTS.  THEY
WERE FOR THE MOST PART UNDER CHARTER TO ONE OF THE APPELLEES FROM 1936
THROUGH 1941.  WITH THE ADVENT OF THE WAR THE UNITED STATES
REQUISITIONED MANY OF THE VESSELS OF THE APPELLEES, USING SOME OF THEM
FOR CARRYING BULK COMMODITIES ON THE GREAT LAKES AND REMOVING OTHERS TO
THE SALT WATER.  AS A RESULT, TWO OF THE APPELLEES AT THE TIME OF THE
HEARING FN3  IN JUNE, 1943, HAD NO AUTOMOBILE CARRIERS AND WERE NOT
OPERATING; THE THIRD WAS OPERATING NINE VESSELS, OF WHICH FIVE WERE
OWNED BY AND OPERATED FOR THE UNITED STATES.  IN CONTRAST, THE
APPLICANTS OWNED THEIR THREE VESSELS FREE AND CLEAR OF ANY INCUMBRANCE;
AND WHILE THOSE VESSELS HAD BEEN CONVERTED FOR CARRYING BULK TRAFFIC,
ALL OF THE EQUIPMENT NECESSARY FOR RECONVERSION INTO AUTOMOBILE
CARRIERS HAD BEEN PRESERVED.  THE COMMISSION FOUND THAT PRIOR TO THE
WAR THERE WERE INSUFFICIENT FACILITIES FOR THE MOVEMENT OF AUTOMOBILES
ON THE GREAT LAKES DURING CERTAIN PEAK PERIODS EVEN WITH THE CARRYING
CAPACITY OF APPLICANTS' VESSELS INCLUDED.  THERE WAS TESTIMONY OF
AUTOMOBILE MANUFACTURERS AND OF MOTOR COMMON CARRIERS THAT THE CARRYING
CAPACITY OF APPLICANTS' VESSELS WOULD BE NEEDED WHEN THE MANUFACTURE OF
AUTOMOBILES WAS RESUMED.  THE COMMISSION FOUND THAT PRIOR TO THE WAR
THERE WAS A DEFINITE NEED FOR THE CARRYING CAPACITY OF APPLICANTS'
VESSELS IN THIS TRANSPORTATION AND THAT THERE WAS A REASONABLE
CERTAINTY THAT A LIKE NEED FOR THAT CAPACITY WOULD ARISE WHEN THE
PRODUCTION OF AUTOMOBILES FOR CIVILIAN USE WAS RESUMED.  IT FOUND THAT
WHILE THE APPLICANTS COULD READILY RECONVERT THEIR VESSELS TO HANDLE
AUTOMOBILE TRAFFIC, THERE WAS CONSIDERABLE UNCERTAINTY AS TO THE LENGTH
OF TIME IT WOULD TAKE THE APPELLEES TO PROCURE AND PLACE IN OPERATION
THE ADDITIONAL VESSELS WHICH WOULD BE NEEDED WHEN PRODUCTION OF
AUTOMOBILES FOR CIVILIAN USE WAS RESUMED.  IT CONCLUDED THAT THE PUBLIC
INTEREST WOULD BE ADVERSELY AFFECTED IF, AFTER PRODUCTION WAS RESUMED,
APPELLEES WERE DELAYED IN ACQUIRING THE ADDITIONAL FACILITIES NEEDED TO
MEET THE TRANSPORTATION DEMANDS.  ON THAT BASIS IT HELD THAT THE
PROPOSED SERVICE WOULD BE REQUIRED BY FUTURE PUBLIC CONVENIENCE AND
NECESSITY. 

THE DISTRICT COURT HELD THAT THE COMMISSION'S ORDER COULD NOT BE
SUSTAINED IN ABSENCE OF EVIDENCE THAT APPLICANTS' VESSELS WERE THE ONLY
VESSELS AVAILABLE TO APPELLEES TO MEET THE PROSPECTIVE TRANSPORTATION
DEMANDS BEYOND THAT FURNISHED BY THEIR OWN VESSELS.  IT CONCLUDED THAT
NOT ONLY WAS THERE NO FINDING THAT IF APPLICANTS' VESSELS WERE NOT
CHARTERED THERE WAS NO OTHER CARRYING CAPACITY WHICH COULD HAVE BEEN
ACQUIRED BUT THAT THE RECORD ESTABLISHED THE CONTRARY. 

THE CASE, HOWEVER, IS NOT ONE WHERE THERE IS A SERVICE PRESENTLY
BEING RENDERED AND A NEWCOMER SEEKS ENTRY INTO THE FIELD.  WHETHER IN
THAT EVENT THE RULING OF THE DISTRICT COURT WOULD BE CORRECT IS A
QUESTION WE DO NOT REACH.  WHILE THE AUTHORITY OF APPELLEES TO SERVE AS
CARRIERS HAS NOT BEEN TERMINATED, THE SERVICE FORMERLY RENDERED BY THEM
HAS BEEN INTERRUPTED BY THE WAR.  THE APPLICATIONS CONCERN A PROPOSED
ADDITIONAL SERVICE TO BE RENDERED IN THE FUTURE.  SEC. 309(C)
AUTHORIZES THE COMMISSION TO PERMIT THE PROPOSED SERVICE TO BE RENDERED
IF IT "IS OR WILL BE REQUIRED BY THE PRESENT OR FUTURE PUBLIC
CONVENIENCE AND NECESSITY."  THAT ENTAILS A PROPHECY SO FAR AS FUTURE
REQUIREMENTS ARE CONCERNED.  THE COMMISSION MADE THAT PROPHECY ON THE
BASIS OF (1) THE EARLIER SERVICE WHICH HAD BEEN DISCONTINUED DURING THE
WAR, (2) THE LIKELY REQUIREMENTS FOR THE FUTURE, AND (3) THE ABILITY OF
THE EXISTING CARRIERS TO EFFECT AN EXPEDITIOUS RESUMPTION OF SERVICE AT
THE WAR'S END.  THE ABILITY OF THE APPLICANTS PROMPTLY TO RENDER THE
SERVICE AT THAT TIME IS ADEQUATELY ESTABLISHED.  WHETHER THE APPELLEES
COULD OR WOULD MOVE WITH LIKE DISPATCH IS LESS CERTAIN.  MANY OF THE
VESSELS WHICH THEY PREVIOUSLY OWNED HAD BEEN TAKEN BY THE UNITED
STATES.  AND THE COMMISSION HAD DOUBT AS TO WHETHER THEY WOULD OR COULD
OBTAIN THE NECESSARY ADDITIONAL TRANSPORTATION FACILITIES IN TIME TO
MEET THE FORESEEABLE FUTURE DEMANDS WHICH WOULD ARISE WHEN AUTOMOBILE
MANUFACTURE WAS RESUMED.  WE DO NOT HAVE HERE A CASE WHERE THERE WAS A
SURPLUS OF FACILITIES IN THE PRIOR SERVICE WHICH THE WAR INTERRUPTED. 
THE COMMISSION INDEED FOUND THAT THE PRIOR SERVICE HAD NOT BEEN
ADEQUATE, A FINDING WHICH WE THINK IS SUPPORTED BY EVIDENCE.  IT TOOK
THAT FACT INTO CONSIDERATION IN DETERMINING THE MARGIN OF SAFETY WHICH
THE PUBLIC INTEREST REQUIRED FOR THE RESUMPTION OF THE INTERRUPTED
SERVICE.  WE THINK THE INADEQUACY OF THE PRIOR SERVICE WAS RELEVANT TO
THAT DETERMINATION.  IT NOT ONLY BORE UPON THE FUTURE SHIPPING NEEDS
WHICH WERE LIKELY BUT ALSO UNDERSCORED THE DANGER OF DELAYS IN RESUMING
THE SERVICE IF THE FIELD WERE LEFT EXCLUSIVELY TO EXISTING CARRIERS. 

IF THE COMMISSION WERE REQUIRED TO DENY THESE APPLICATIONS UNLESS IT
FOUND AN ACTUAL INABILITY ON THE PART OF EXISTING CARRIERS TO ACQUIRE
THE FACILITIES NECESSARY FOR FUTURE TRANSPORTATION NEEDS, A LIMITATION
WOULD BE IMPOSED ON THE POWER OF THE COMMISSION WHICH IS NOT FOUND IN
THE ACT.  THE COMMISSION IS THE GUARDIAN OF THE PUBLIC INTEREST IN
DETERMINING WHETHER CERTIFICATES OF CONVENIENCE AND NECESSITY SHALL BE
GRANTED.  FOR THE PERFORMANCE OF THAT FUNCTION THE COMMISSION HAS BEEN
ENTRUSTED WITH A WIDE RANGE OF DISCRETIONARY AUTHORITY.  INTERSTATE
COMMERCE COMMISSION V. PARKER, 326 U.S. 60.  ITS FUNCTION IS NOT ONLY
TO APPRAISE THE FACTS AND TO DRAW INFERENCES FROM THEM BUT ALSO TO
BRING TO BEAR UPON THE PROBLEM AN EXPERT JUDGMENT AND TO DETERMINE FROM
ITS ANALYSIS OF THE TOTAL SITUATION ON WHICH SIDE OF THE CONTROVERSY
THE PUBLIC INTEREST LIES.  ITS DOUBT THAT THE PUBLIC INTEREST WILL BE
ADEQUATELY SERVED IF RESUMPTION OF SERVICE IS LEFT TO EXISTING CARRIERS
IS ENTITLED TO THE SAME RESPECT AS ITS EXPERT JUDGMENT ON OTHER
COMPLICATED TRANSPORTATION PROBLEMS.  SEE CHESAPEAKE & OHIO R. CO. V.
UNITED STATES, 283 U.S. 35, 42; ALTON R. CO. V. UNITED STATES, 315 U.S.
15, 23.  FORECASTS AS TO THE FUTURE ARE NECESSARY TO THE DECISION.  BUT
NEITHER UNCERTAINTIES AS TO THE FUTURE NOR THE INABILITY OR FAILURE OF
EXISTING CARRIERS TO SHOW THE SUFFICIENCY OF THEIR PLANS TO MEET FUTURE
TRAFFIC DEMANDS NEED PARALYZE THE COMMISSION INTO INACTION.  IT MAY BE
THAT THE PUBLIC INTEREST REQUIRES THAT FUTURE SHIPPING NEEDS BE ASSURED
RATHER THAN LEFT UNCERTAIN.  THE COMMISSION HAS THE DISCRETION SO TO
DECIDE.  IT WENT NO FURTHER HERE.  REVERSED. 

FN1  THE COMPANIES ARE BOTH CONTROLLED BY T.J. MCCARTHY.  THE
CERTIFICATE RUNS TO T.J. MCCARTHY STEAMSHIP CO., FOR ITSELF AND AS
MANAGING AGENT OF AUTOMOTIVE TRADES STEAMSHIP CO. 

FN2  SEC. 210(28 U.S.C. SEC. 47A) AND SEC. 238 OF THE JUDICIAL CODE
AS AMENDED, 28 U.S.C. SEC. 345. 

FN3  THE COMMISSION RENDERED ITS DECISION ON MARCH 7, 1944. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













GENERAL ELECTRIC CO. V. JEWEL CO., 326 U.S. 242 


NO. 46.  ARGUED OCTOBER 18, 19, 1945.  - DECIDED NOVEMBER 5, 1945.  -
146 F.2D 414, AFFIRMED. 


1.  PIPKIN PATENT NO. 1,687,510 FOR A FROSTED GLASS ELECTRIC LAMP
BULB, CHARACTERIZED BY THE PRESENCE ON THE INTERIOR OF ROUNDED INSTEAD
OF SHARP, ANGULAR CREVICES SO AS TO STRENGTHEN RESISTANCE AGAINST
BREAKAGE BY IMPACT, HELD INVALID FOR WANT OF INVENTION.  PP. 243, 248. 

2.  IT DID NOT APPEAR THAT, PRIOR TO THE PATENT IN QUESTION, ELECTRIC
BULBS HAD BEEN FROSTED ON THE INTERIOR WITH ROUNDED RATHER THAN SHARP,
ANGULAR CREVICES.  BUT AN EARLIER PATENT, AS WELL AS THE ART WHICH
PRECEDED IT, SHOWED HOW TO PRODUCE SUCH A SURFACE ON THE EXTERIOR OF
ELECTRIC BULBS; AND ANOTHER EARLIER PATENT SHOWED HOW TO FROST THE
INSIDE OF AN ELECTRIC BULB.  HELD THAT, IN VIEW OF THESE DISCLOSURES,
THERE COULD BE NO INVENTION IN FROSTING EITHER THE OUTSIDE OR INSIDE OF
AN ELECTRIC BULB SO AS TO PRODUCE ROUNDED RATHER THAN SHARP, ANGULAR
CREVICES.  PRINCIPLE OF ANSONIA BRASS & COPPER CO. V. ELECTRIC SUPPLY
CO., 144 U.S. 11, APPLIED.  PP. 247-249. 

3.  WHERE THE METHOD OF THE MANUFACTURE OF AN ARTICLE IS KNOWN, MORE
THAN A NEW ADVANTAGE OF THE PRODUCT MUST BE DISCOVERED IN ORDER TO
CLAIM INVENTION.  P. 249. 

GENERAL ELECTRIC CO. V. JEWEL INCANDESCENT LAMP CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 324 U.S. 838, TO REVIEW AFFIRMANCE OF AN ORDER, 47
F.SUPP.  818, DISMISSING A SUIT FOR INFRINGEMENT OF A PATENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR INFRINGEMENT OF PIPKIN PATENT NO. 1,687,510 ISSUED
TO PETITIONER, ASSIGNEE OF MARVIN PIPKIN, ON OCTOBER 16, 1928.  THE
DISTRICT COURT FOUND THE PATENT TO BE INVALID AND ALSO THAT THE ACCUSED
STRUCTURE DID NOT INFRINGE.  IT ACCORDINGLY DISMISSED THE BILL.  47
F.SUPP.  818.  THE CIRCUIT COURT OF APPEALS AFFIRMED, HOLDING THE
PATENT INVALID.  146 F.2D 414.  THE CASE IS HERE ON A PETITION FOR WRIT
OF CERTIORARI WHICH WE GRANTED BECAUSE OF A CONFLICT OF DECISION AMONG
THE CIRCUIT COURTS OF APPEALS.  FN1 

THE PATENT RELATES TO A FROSTED GLASS BULB FOR ELECTRIC LAMPS.  IT IS
DEFENDED HERE AS A PRODUCT NOT A PROCESS PATENT.  THE PRODUCT IS
DESCRIBED IN THE FIRST CLAIM AS FOLLOWS: 

"A GLASS ELECTRIC LAMP BULB HAVING ITS INTERIOR SURFACE FROSTED BY
ETCHING SO THAT THE MAXIMUM BRIGHTNESS OF AN ORDINARY INCANDESCENT LAMP
COMPRISING SUCH A BULB WILL BE LESS THAN TWENTY-FIVE PER CENT OF THAT
OF SAID LAMP WITH A CLEAR BULB, SAID INTERIOR BULB SURFACE BEING
CHARACTERIZED BY THE PRESENCE OF ROUNDED AS DISTINGUISHED FROM SHARP
ANGULAR CREVICES TO SUCH AN EXTENT THAT THE STRENGTH TO RESIST BREAKAGE
BY IMPACT IS GREATER THAN TWENTY PER CENT OF THAT OF THE CLEAR BULB." 

MANY YEARS PRIOR TO THE PIPKIN PATENT, EFFORTS HAD BEEN MADE TO
REDUCE THE GLARE PRODUCED BY THE BRILLIANT FILAMENT OF AN INCANDESCENT
LAMP HAVING A CLEAR BULB.  THE MOST COMMON METHOD OF REDUCING THE GLARE
WAS TO FROST THE OUTSIDE SURFACE WITH AN ACID FROSTING SOLUTION.  WHILE
BULBS SO TREATED REDUCED THE GLARE, THE ROUGH OUTSIDE SURFACE COLLECTED
DIRT AND WAS DIFFICULT TO CLEAN, WITH THE RESULT THAT THE LIGHT OUTPUT
WAS FURTHER REDUCED.  TWENTY-FIVE YEARS BEFORE PIPKIN, KENNEDY (PATENT
NO. 733,972 ISSUED JULY 21, 1903) HAD SHOWED AN INSIDE FROSTED BULB. 
BUT A DIFFICULTY APPEARED.  WHEN THE OUTSIDE SURFACE OF A BULB WAS
FROSTED THE STRENGTH OF THE BULB WAS NOT MATERIALLY AFFECTED.  WHEN THE
INSIDE SURFACE, HOWEVER, WAS FROSTED, THE STRENGTH OF THE BULB WAS
SUBSTANTIALLY REDUCED, MAKING IT UNFIT FOR PRACTICAL USE.  PIPKIN
RECITED THESE FACTS IN HIS SPECIFICATIONS AND STATED, "THE OBJECT OF MY
INVENTION IS TO PRODUCE AN INSIDE FROSTED GLASS BULB WHICH WILL BE MUCH
STRONGER THAN THOSE HERETOFORE PRODUCED."  HE WENT ON TO STATE THAT THE
PREFERRED METHOD OF FROSTING WAS BY USE OF A CHEMICAL MEDIUM WHICH,
WHEN APPLIED SO AS TO PRODUCE THE PROPER LIGHT DIFFUSION, MADE THE BULB
EXTREMELY FRAGILE.  AND HE ADDED:  "I HAVE FOUND, HOWEVER, THAT IF THE
BULB IS GIVEN A FURTHER TREATMENT, WHICH I TERM A STRENGTHENING
TREATMENT, IN WHICH IT IS SUBJECTED TO AN ETCHING OR FROSTING TREATMENT
OF LOWER DEGREE THAN THAT TO WHICH IT WAS FIRST SUBJECTED, IT BECOMES
QUITE STRONG.  INDEED, IT MAY BE MADE PRACTICALLY AS STRONG AS THE
ORIGINAL CLEAR GLASS BULB."  HE GAVE AS THE PROBABLE EXPLANATION THE
FACT THAT THE FIRST TREATMENT PRODUCED SHARP, ANGULAR CREVICES OR PITS
IN THE GLASS, WHILE THE SECOND OR STRENGTHENING TREATMENT ATE AWAY
ADDITIONAL GLASS AND ROUNDED OUT THE ANGULAR CREVICES INTO SAUCER
SHAPED PITS.  FN2  THE FACT THAT THE BULB WAS STRENGTHENED WHEN
ADDITIONAL GLASS WAS DISSOLVED WAS REFERRED TO BY THE COURT BELOW AS
"PIPKIN'S PARADOX."  THE PATENT CONTAINS CHARTS SHOWING THE RELATIVE
EXTENT TO WHICH THE STRENGTH OF THE BULB IS WEAKENED BY THE FIRST
FROSTING TREATMENT AND ITS STRENGTH RESTORED BY THE SECOND TREATMENT. 
THE PATENT ALSO SHOWS THAT WHILE THE BULB OF THE PATENT MATERIALLY
REDUCED THE GLARE OBTAINED IN A CLEAR BULB, THE LIGHTING EFFICIENCY OF
THE TWO IS SUBSTANTIALLY THE SAME FOR ANY GIVEN WATTAGE. 

AS THE FIRST CLAIM OF THE PATENT INDICATES, THE CHARACTERISTIC
FEATURE OF THE PATENTED BULB IS THE FACT THAT THE INTERIOR SURFACE IS
"CHARACTERIZED BY THE PRESENCE OF ROUNDED AS DISTINGUISHED FROM SHARP
ANGULAR CREVICES."  IT IS THAT FEATURE WHICH IS RESPONSIBLE FOR THE
BULB'S STRENGTH.  NOW, AN ELECTRIC BULB FROSTED ON THE INSIDE WAS OLD
IN THE ART. KENNEDY HAD DISCLOSED SUCH A PRODUCT TWENTY-FIVE YEARS
EARLIER.  MOREOVER, IT HAD LONG BEEN KNOWN IN THE ART THAT SUCCESSIVE
ACID TREATMENTS OF GLASS ROUNDED OUT THE SHARP ANGULAR CREVICES
PRODUCED BY THE FIRST ETCHING.  THAT WAS SHOWN IN PARTICULARITY BY
REINITZER  FN3  IN 1887 AND BY TILLOTSON  FN4  IN 1917.  AND IT WAS
SHOWN IN SPRECHSAAL OF 1907(A GERMAN TRADE PAPER) THAT IF HOLLOW GLASS
WAS SUBJECTED TO A SECOND ETCHING, THE SURFACE WOULD HAVE A SILK-LIKE
APPEARANCE, THE FINISH BEING CALLED SATIN ETCHING OR SILK MAT.  FN5  IT
IS TRUE THAT THESE PRIOR PUBLICATIONS WERE CONCERNED WITH FROSTING FOR
THE PURPOSE OF OBTAINING A DECORATIVE FINISH IN GLASS WARE OR DESIRED
OPTICAL EFFECTS IN FOCUSING SCREENS FOR CAMERAS AND THE LIKE.  BUT
SPRECHSAAL IN 1912 SPECIFICALLY DESCRIBED THE APPLICATION OF SUCCESSIVE
ETCHINGS TO ELECTRIC BULBS.  AND THAT PUBLICATION RECOMMENDED, AS
PIPKIN DID YEARS LATER, THAT A WEAKER OR DILUTED ETCHING SOLUTION BE
USED FOR THE SECOND ETCHING.  MOREOVER, WOOD (PATENT NO. 1,240,398
ISSUED SEPTEMBER 18, 1917) OBSERVED THAT SUCCESSIVE ACID TREATMENTS OF
GLASS ROUNDED OUT THE SHARP ANGULAR CREVICES PRODUCED BY THE FIRST
ETCHING, AND HE APPLIED THAT IDEA TO ELECTRIC BULBS AS WELL AS TO OTHER
GLASS ARTICLES.  HIS PATENT COVERED THE MAKING OF LIGHT-DIFFUSING
SCREENS.  HE NOTED THAT IF GLASS WAS ETCHED ONCE, THE SURFACE WAS CUT
INTO IRREGULAR CREVICES, PITS AND GROOVES, WITH THE RESULT THAT ONLY A
PORTION OF THE LIGHT WAS TRANSMITTED.  BUT IF AFTER THE FIRST ETCHING
(WHICH HE ACCOMPLISHED BY A BLAST OF AIR CHARGED WITH A FINE DUST OF
FLOUR EMERY OR CARBORUNDUM) THE SURFACE WAS FLOWED WITH ACID, THE
CREVICES AND PITS WERE ENLARGED AND SMOOTHED OUT INTO MINUTE CONCAVE
LENSES.  THESE MICROSCOPICAL LENSES DIFFUSED THE LIGHT PERFECTLY AND
TRANSMITTED PRACTICALLY ALL OF IT.  HE NOTED THAT HIS PROCESS WAS
ESPECIALLY VALUABLE IN THE CASE OF CERTAIN TYPES OF CAMERAS.  BUT HE
ADDED, "SUCH A SCREEN IS ALSO USEFUL FOR RENDERING THE BULBS OF
INCANDESCENT LAMPS DIFFUSING WITHOUT AT THE SAME TIME CAUSING THE VERY
MARKED LOSS IN THE EFFICIENCY OF THE LAMP, WHICH RESULTS FROM FROSTING
THE BULBS IN THE USUAL MANNER."  WOOD, TO BE SURE, DID NOT DESCRIBE
FROSTING THE INSIDE OF THE BULB.  KENNEDY, HOWEVER, HAD SHOWN THAT. 
MOREOVER, PRIOR TO WOOD IT WAS WELL KNOWN IN THE ART, AS WE HAVE NOTED,
THAT SUCCESSIVE ACID TREATMENTS OF GLASS PRODUCED A SURFACE
CHARACTERIZED BY THE PRESENCE OF ROUNDED AS DISTINGUISHED FROM SHARP
ANGULAR CREVICES OR PITS.  IF THERE WAS NOVELTY IN APPLYING THAT
PROCESS TO ELECTRIC BULBS, WOOD ACHIEVED IT.  AT LEAST SINCE KENNEDY,
IT WAS KNOWN THAT INSIDE-FROSTED ELECTRIC BULBS WERE PREFERABLE TO
OUTSIDE-FROSTED BULBS. 

WOOD, OF COURSE, WAS CONCERNED ONLY WITH LIGHT DIFFUSION AND
TRANSMISSION PRIMARILY OF SCREENS, SECONDARILY OF ELECTRIC BULBS. 
NEITHER HE NOR ANY OTHER BEFORE PIPKIN APPEARS TO HAVE GIVEN ANY
INDICATION THAT THE SECOND TREATMENT RESULTED IN ANY STRENGTHENING OF
THE GLASS.  BUT STRENGTHENING WAS INHERENT IN THE METHOD HE PROPOSED. 
AND IT APPEARS THAT AN ELECTRIC BULB, WHICH HAD BEEN FROSTED INSIDE
PURSUANT TO HIS METHOD, WOULD HAVE INEVITABLY OBTAINED THE ROUNDED PITS
AND HENCE THE ATTENDANT STRENGTH CHARACTERISTIC OF THE PIPKIN BULB. 

IF A WITHOUT MENTIONING THE ELEMENT OF STRENGTH PATENTED A BULB WHICH
WAS EXTRA STRONG, B COULD NOT OBTAIN A PATENT ON THE BULB BECAUSE OF
ITS STRENGTH, THOUGH HE WAS THE FIRST TO RECOGNIZE THAT FEATURE OF IT.
THAT IS THE IMPORT OF ANSONIA BRASS & COPPER CO. V. ELECTRICAL SUPPLY
CO., 144 U.S. 11.  THAT CASE INVOLVED THE QUESTION OF THE VALIDITY OF A
PATENT FOR AN INSULATED ELECTRIC CONDUCTOR.  THE PRIOR ART DISCLOSED A
SIMILAR METHOD OF INSULATION WHICH WAS USED IN CONNECTION WITH THE
WIRING OF BURGLAR ALARMS.  SUCH USE INVOLVED NO PROBLEM OF
COMBUSTIBILITY OF THE INSULATING MATERIAL WHICH EMERGED ON THE
INTRODUCTION OF ELECTRIC LIGHTING.  THE INSULATOR DISCLOSED BY THE
PRIOR ART WAS NOT INTENDED TO BE, AND PERHAPS WAS NOT KNOWN TO BE
INCOMBUSTIBLE.  BUT IN FACT THE EARLIER INSULATOR HAD APPROXIMATELY THE
SAME DEGREE OF INCOMBUSTIBILITY AS THAT DESCRIBED IN THE PATENT.  THE
COURT RULED THAT "THE APPLICATION OF AN OLD PROCESS TO A NEW AND
ANALOGOUS PURPOSE DOES NOT INVOLVE INVENTION, EVEN IF THE NEW RESULT
HAD NOT BEFORE BEEN CONTEMPLATED."  144 U.S. P. 18.  SINCE THE TWO
INSULATORS WERE PRACTICALLY THE SAME IN THEIR METHOD OF CONSTRUCTION,
THE PATENTEE WAS NOT ALLOWED TO CLAIM THE FEATURE OF INCOMBUSTIBILITY
AS HIS INVENTION.  THE BENEFITS OF THE "POTENCIES AND VALUES MORE
IMPORTANT THAN THE USES THAT WERE IMMEDIATELY APPARENT" BELONG TO HIM
WHO ESTABLISHES PRIORITY OF DISCOVERY.  RADIO CORPORATION OF AMERICA V.
RADIO ENGINEERING LABORATORIES, 293 U.S. 1, 14. 

PETITIONER, HOWEVER, INSISTS THAT THIS IS NOT A CASE WHERE THE
PATENTEE MERELY OBSERVED THE ADVANTAGEOUS PROPERTIES OF AN OLD ARTICLE
OF MANUFACTURE.  IT SAYS THAT PIPKIN CREATED A NEW ARTICLE OF
MANUFACTURE, AN INSIDE-FROSTED BULB HAVING AN ETCHED INNER SURFACE
CHARACTERIZED BY ROUNDED RATHER THAN SHARP ANGULAR CREVICES - AN
ARTICLE THAT NEVER EXISTED BEFORE.  IT POINTS OUT THAT PRIOR TO PIPKIN
NO ONE KNEW WHY INSIDE FROSTED BULBS WERE WEAK NOR KNEW HOW TO REMEDY
THE WEAKNESS.  PIPKIN INDEED SEEMS TO BE THE FIRST TO HAVE RECOGNIZED
THAT THE FORM OF THE PITTING HAD AN EFFECT ON THE STRENGTH OF THE
GLASS.  THE PRIOR ART APPEARS TO HAVE MADE NO SUCH DISCLOSURE.  AND IT
IS TRUE THAT THE PIPKIN BULB MET WITH COMMERCIAL SUCCESS.  THE QUESTION
REMAINS, HOWEVER, WHETHER THE PIPKIN PATENT WAS INVALID BECAUSE OF
ANTICIPATION. 

IT IS TRUE THAT THERE IS A DIFFERENCE BETWEEN THE ANSONIA CASE AND
THE PRESENT ONE.  THERE A PRIOR PRODUCT HAD BEEN CREATED HAVING
QUALITIES WHICH WERE UNRECOGNIZED AT THE TIME AND WHICH LATER WERE
SOUGHT TO BE PATENTED.  ON THE OTHER HAND, IT DOES NOT APPEAR IN THE
PRESENT CASE THAT PRIOR TO PIPKIN ELECTRIC BULBS HAD BEEN FROSTED ON
THE INTERIOR WITH ROUNDED RATHER THAN SHARP ANGULAR CREVICES OR PITS. 
BUT WOOD, AS WELL AS THE ART WHICH PRECEDED HIM, SHOWED HOW TO PRODUCE
SUCH A SURFACE ON ELECTRIC BULBS AS WELL AS ON OTHER ARTICLES OF
GLASS.  KENNEDY SHOWED HOW TO FROST THE INSIDE OF AN ELECTRIC BULB.  IN
VIEW OF THESE DISCLOSURES IT IS DIFFICULT TO SEE HOW THERE COULD BE
INVENTION IN FROSTING EITHER THE OUTSIDE OR INSIDE OF AN ELECTRIC BULB
SO AS TO PRODUCE SAUCER-SHAPED RATHER THAN SHARP, ANGULAR CREVICES OR
PITS.  A PRODUCT CLAIM DESCRIBES AN ARTICLE, NEW AND USEFUL.  THE
PRINCIPLE OF THE ANSONIA CASE PLAINLY WOULD DENY VALIDITY TO THE PIPKIN
PATENT IF THE PRIOR ART DISCLOSED AN ELECTRIC BULB SO FROSTED ON THE
INSIDE AS TO ROUND OUT THE ANGULAR CREVICES PRODUCED BY THE FIRST
ETCHING, WHETHER THE FULL UTILITY OF THE BULB HAD BEEN PREVIOUSLY
RECOGNIZED OR NOT.  THE SAME RESULT IS INDICATED WHERE, AS IN THE
PRESENT CASE, THE PRIOR ART DISCLOSES THE METHOD OF MAKING AN ARTICLE
HAVING THE CHARACTERISTICS OF THE PATENTED PRODUCT, THOUGH ALL THE
ADVANTAGEOUS PROPERTIES OF THE PRODUCT HAD NOT BEEN FULLY APPRECIATED. 
LOVELL MFG. CO. V. CARY, 147 U.S. 623.  PIPKIN FOUND LATENT QUALITIES
IN AN OLD DISCOVERY AND ADAPTED IT TO A USEFUL END.  BUT THAT DID NOT
ADVANCE THE FRONTIERS OF SCIENCE IN THIS NARROW FIELD SO AS TO SATISFY
THE EXACTING STANDARDS OF OUR PATENT SYSTEM.  WHERE THERE HAS BEEN USE
OF AN ARTICLE OR WHERE THE METHOD OF ITS MANUFACTURE IS KNOWN, MORE
THAN A NEW ADVANTAGE OF THE PRODUCT MUST BE DISCOVERED IN ORDER TO
CLAIM INVENTION.  SEE DEFOREST RADIO CO. V. GENERAL ELECTRIC CO., 283
U.S. 664, 682.  IT IS NOT INVENTION TO PERCEIVE THAT THE PRODUCT WHICH
OTHERS HAD DISCOVERED HAD QUALITIES THEY FAILED TO DETECT.  SEE CORONA
CORD TIRE CO. V. DOVAN CHEMICAL CORP., 276 U.S. 358, 369.  AFFIRMED. 

FN1  THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT IN GENERAL
ELECTRIC CO. V. SAVE SALES CO., 82 F.2D 100, AND THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT IN GENERAL ELECTRIC CO. V. WABASH
APPLIANCE CORP., 93 F.2D 671, HELD THE PATENT VALID.  THE CORRESPONDING
CANADIAN PIPKIN PATENT NO. 289,379 WAS HELD INVALID BY THE SUPREME
COURT OF CANADA.  FUSO ELECTRIC WORKS V. CANADIAN GENERAL ELECTRIC CO.,
1940 CAN.  L. REP. 371.  THE BRITISH PIPKIN PATENT, NO. 228,907, WAS
HELD INVALID BY THE HIGH COURT OF JUSTICE.  BRITISH THOMSON-HOUSTON
CO., LTD. V. TUNGSTALITE, LTD., 57 PAT.  JOURN.  271(1940). 

FN2  ONE OF THE EXPERTS, WHEN ASKED FOR THE EXPLANATION OF THIS
PHENOMENON, TESTIFIED:  "BECAUSE IN THE INSTANCE WHERE WE HAVE SHARP
ANGULAR CREVICES ON THE INSIDE SURFACE AND THE BULB IS SUBJECTED TO
IMPACT ON ITS OUTER SURFACE, THE INNER SURFACE TENDS TO BE EXTENDED AND
THEREFORE IT IS PUT INTO TENSION AND THE SHARP ANGULAR CREVICES ARE THE
STARTING POINT FOR CRACKS, WHEREAS IN THE CASE  ...  WHERE THE CREVICE
HAS BEEN ROUNDED OUT THE IMPACT AGAINST A BULB HAVING ON ITS INNER
SURFACE THIS TYPE OF FROSTING, IS SUCH THAT THE TESTING EFFORT IS
SPREAD OVER A VERY MUCH LARGER AREA AND THE BULB IS ALMOST AS STRONG AS
IT WAS BEFORE FROSTING."    FN3  DIE GLASHUTTE OF 1887, CONTRIBUTIONS
TO THE KNOWLEDGE OF GLASS ETCHING. 

FN4  JOURNAL OF INDUSTRIAL AND ENGINEERING CHEMISTRY, OCTOBER 1917. 

FN5  IT WAS LARGELY ON THE BASIS OF THIS PRIOR DISCLOSURE THAT THE
BRITISH PATENT WAS HELD INVALID.  SEE BRITISH THOMSON-HOUSTON CO., LTD.
V. TUNGSTALITE, LTD., SUPRA NOTE 1, PP. 288-289. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





SOUTHERN PACIFIC CO. V. ARIZONA, 325 U.S. 761 


NO. 56.  ARGUED MARCH 26, 27, 1945.  - DECIDED JUNE 18, 1945.  - 61
ARIZ. 66, 145 P.2D 530, REVERSED. 


1.  STATE POWER TO REGULATE THE LENGTH OF RAILROAD TRAINS IS NOT
CURTAILED OR SUPERSEDED BY SEC. 1 OF THE INTERSTATE COMMERCE ACT
(PARAGRAPHS 10-17) OF ITSELF, AND IN THE ABSENCE OF ADMINISTRATIVE
IMPLEMENTATION BY THE INTERSTATE COMMERCE COMMISSION; NOR BY PROVISIONS
OF THE SAFETY APPLIANCE ACT FOR BRAKES ON TRAINS; NOR BY THE PROVISION
OF SEC. 25 OF PART I OF THE INTERSTATE COMMERCE ACT PERMITTING THE
COMMISSION TO ORDER THE INSTALLATION OF TRAIN STOP AND CONTROL
DEVICES.  PP. 765-766. 

IN ENACTING LEGISLATION WITHIN ITS CONSTITUTIONAL AUTHORITY OVER
INTERSTATE COMMERCE, CONGRESS WILL NOT BE DEEMED TO HAVE INTENDED TO
STRIKE DOWN A STATE STATUTE DESIGNED TO PROTECT THE HEALTH AND SAFETY
OF THE PUBLIC UNLESS ITS PURPOSE TO DO SO IS CLEARLY MANIFESTED; OR
UNLESS THE STATE LAW, IN TERMS OR IN ITS PRACTICAL ADMINISTRATION,
CONFLICTS WITH THE ACT OF CONGRESS OR PLAINLY AND PALPABLY INFRINGES
ITS POLICY.  P. 766. 

2.  THE ARIZONA TRAIN LIMIT LAW (ARIZONA CODE ANN., 1939, SEC. 69
119), MAKING IT UNLAWFUL TO OPERATE WITHIN THE STATE A PASSENGER TRAIN
OF MORE THAN FOURTEEN CARS OR A FREIGHT TRAIN OF MORE THAN SEVENTY
CARS, HELD, AS APPLIED TO INTERSTATE TRAINS, INVALID AS CONTRAVENING
THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 763, 781. 

3.  THE COMMERCE CLAUSE, EVEN WITHOUT THE AID OF CONGRESSIONAL
LEGISLATION, PROTECTS AGAINST STATE LEGISLATION WHICH IS INIMICAL TO
THE NATIONAL COMMERCE; AND IN SUCH CASES, WHERE CONGRESS HAS NOT ACTED,
THIS COURT, AND NOT THE STATE LEGISLATURE, IS THE FINAL ARBITER OF THE
COMPETING DEMANDS OF STATE AND NATIONAL INTERESTS.  P. 769. 

4.  ALTHOUGH THIS COURT, UPON REVIEW OF A DECISION OF A STATE COURT,
MAY DETERMINE FOR ITSELF THE FACTS UPON WHICH AN ASSERTED FEDERAL RIGHT
DEPENDS, THE CRUCIAL FINDINGS OF THE STATE COURT HERE ARE NOT
CHALLENGED IN MATERIAL PARTICULARS, ARE SUPPORTED BY EVIDENCE, AND
SUPPLY AN ADEQUATE BASIS FOR DECISION OF THE CONSTITUTIONAL ISSUE
PRESENTED.  P. 771. 

5.  THE STATE REGULATION HERE INVOLVED, ADMITTEDLY OBSTRUCTIVE TO
INTERSTATE TRAIN OPERATION, AND HAVING A SERIOUSLY ADVERSE EFFECT ON
TRANSPORTATION EFFICIENCY AND ECONOMY, PASSES BEYOND WHAT IS PLAINLY
ESSENTIAL FOR SAFETY, SINCE IT DOES NOT APPEAR THAT IT WILL LESSEN
RATHER THAN INCREASE THE DANGER OF ACCIDENT.  EXAMINATION OF ALL
RELEVANT FACTORS MAKES IT PLAIN THAT THE STATE INTEREST HERE ASSERTED
IS OUTWEIGHED BY THE INTEREST OF THE NATION IN AN ADEQUATE, ECONOMICAL
AND EFFICIENT RAILWAY TRANSPORTATION SERVICE.  P. 781. 

6.  THE RELATIVE WEIGHTS OF THE STATE AND NATIONAL INTERESTS INVOLVED
ARE NOT SUCH AS TO MAKE INAPPLICABLE THE RULE, GENERALLY OBSERVED, THAT
THE FREE FLOW OF INTERSTATE COMMERCE AND ITS FREEDOM FROM LOCAL
RESTRAINTS IN MATTERS REQUIRING UNIFORMITY OF REGULATION ARE INTERESTS
SAFEGUARDED BY THE COMMERCE CLAUSE FROM STATE INTERFERENCE.  PP. 770,
781. 

7.  THE FULL-TRAIN-CREW CASES AND SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177, DISTINGUISHED.  P. 782. 

SOUTHERN PACIFIC CO. V. ARIZONA EX REL. SULLIVAN, ATTORNEY GENERAL. 

APPEAL FROM THE SUPREME COURT OF ARIZONA. 

APPEAL FROM A JUDGMENT UPHOLDING THE CONSTITUTIONALITY OF THE ARIZONA
TRAIN LIMIT LAW. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE ARIZONA TRAIN LIMIT LAW OF MAY 16, 1912, ARIZONA CODE ANN., 1939,
SEC. 69-119, MAKES IT UNLAWFUL FOR ANY PERSON OR CORPORATION TO OPERATE
WITHIN THE STATE A RAILROAD TRAIN OF MORE THAN FOURTEEN PASSENGER OR
SEVENTY FREIGHT CARS, AND AUTHORIZES THE STATE TO RECOVER A MONEY
PENALTY FOR EACH VIOLATION OF THE ACT.  THE QUESTIONS FOR DECISION ARE
WHETHER CONGRESS HAS, BY LEGISLATIVE ENACTMENT, RESTRICTED THE POWER OF
THE STATES TO REGULATE THE LENGTH OF INTERSTATE TRAINS AS A SAFETY
MEASURE AND, IF NOT, WHETHER THE STATUTE CONTRAVENES THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION. 

IN 1940 THE STATE OF ARIZONA BROUGHT SUIT IN THE ARIZONA SUPERIOR
COURT AGAINST APPELLANT, THE SOUTHERN PACIFIC COMPANY, TO RECOVER THE
STATUTORY PENALTIES FOR OPERATING WITHIN THE STATE TWO INTERSTATE
TRAINS, ONE A PASSENGER TRAIN OF MORE THAN FOURTEEN CARS, AND ONE A
FREIGHT TRAIN OF MORE THAN SEVENTY CARS.  APPELLANT ANSWERED, ADMITTING
THE TRAIN OPERATIONS, BUT DEFENDED ON THE GROUND THAT THE STATUTE
OFFENDS AGAINST THE COMMERCE CLAUSE AND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT AND CONFLICTS WITH FEDERAL LEGISLATION.  AFTER AN
EXTENDED TRIAL, WITHOUT A JURY, THE COURT MADE DETAILED FINDINGS OF
FACT ON THE BASIS OF WHICH IT GAVE JUDGMENT FOR THE RAILROAD COMPANY. 
THE SUPREME COURT OF ARIZONA REVERSED AND DIRECTED JUDGMENT FOR THE
STATE.  61 ARIZ. 66, 145 P.2D 530.  THE CASE COMES HERE ON APPEAL UNDER
SEC. 237(A) OF THE JUDICIAL CODE, APPELLANT RAISING BY ITS ASSIGNMENTS
OF ERROR THE QUESTIONS PRESENTED HERE FOR DECISION. 

THE SUPREME COURT LEFT UNDISTURBED THE FINDINGS OF THE TRIAL COURT
AND MADE NO NEW FINDINGS.  IT HELD THAT THE POWER OF THE STATE TO
REGULATE THE LENGTH OF INTERSTATE TRAINS HAD NOT BEEN RESTRICTED BY
CONGRESSIONAL ACTION.  IT SUSTAINED THE ACT AS A SAFETY MEASURE TO
REDUCE THE NUMBER OF ACCIDENTS ATTRIBUTED TO THE OPERATION OF TRAINS OF
MORE THAN THE STATUTORY MAXIMUM LENGTH, ENACTED BY THE STATE
LEGISLATURE IN THE EXERCISE OF ITS "POLICE POWER."  THIS POWER THE
COURT HELD EXTENDED TO THE REGULATION OF THE OPERATIONS OF INTERSTATE
COMMERCE IN THE INTERESTS OF LOCAL HEALTH, SAFETY AND WELL-BEING.  IT
THOUGHT THAT A STATE STATUTE, ENACTED IN THE EXERCISE OF THE POLICE
POWER, AND BEARING SOME REASONABLE RELATION TO THE HEALTH, SAFETY AND
WELL-BEING OF THE PEOPLE OF THE STATE, OF WHICH THE STATE LEGISLATURE
IS THE JUDGE, WAS NOT TO BE JUDICIALLY OVERTURNED, NOTWITHSTANDING ITS
ADMITTEDLY ADVERSE EFFECT ON THE OPERATION OF INTERSTATE TRAINS. 

PURPORTING TO ACT UNDER SEC. 1, PARAGRAPHS 10-17 OF THE INTERSTATE
COMMERCE ACT, 24 STAT. 379 AS AMENDED (49 U.S.C. SEC. 1 ET SEQ.), THE
INTERSTATE COMMERCE COMMISSION, AS OF SEPTEMBER 15, 1942, PROMULGATED
AS AN EMERGENCY MEASURE SERVICE ORDER NO. 85, 7 FED. REG. 7258,
SUSPENDING THE OPERATION OF STATE TRAIN LIMIT LAWS FOR THE DURATION OF
THE WAR, AND DENIED AN APPLICATION TO SET ASIDE THE ORDER.  IN THE
MATTER OF SERVICE ORDER NO. 85, 256 I.C.C. 523.  PARAGRAPH 15 OF SEC. 1
OF THE INTERSTATE COMMERCE ACT EMPOWERS THE COMMISSION, WHEN IT IS "OF
OPINION THAT SHORTAGE OF EQUIPMENT, CONGESTION OF TRAFFIC, OR OTHER
EMERGENCY REQUIRING IMMEDIATE ACTION EXISTS IN ANY SECTION OF THE
COUNTRY," TO MAKE OR SUSPEND RULES AND PRACTICES "WITH RESPECT TO CAR
SERVICE," WHICH INCLUDES BY PARAGRAPH 10 OF SEC. 1 "THE USE, CONTROL,
SUPPLY, MOVEMENT, DISTRIBUTION, EXCHANGE, INTERCHANGE, AND RETURN" OF
LOCOMOTIVES AND CARS, AND THE "SUPPLY OF TRAINS."  PARAGRAPH 16 OF SEC.
1 PROVIDES THAT WHEN A CARRIER IS UNABLE PROPERLY TO TRANSPORT THE
TRAFFIC OFFERED, THE COMMISSION MAY MAKE REASONABLE DIRECTIONS "WITH
RESPECT TO THE HANDLING, ROUTING, AND MOVEMENT OF THE TRAFFIC OF SUCH
CARRIER AND ITS DISTRIBUTION OVER OTHER LINES OF ROADS."  THE AUTHORITY
OF THE COMMISSION TO MAKE ORDER NO. 85 IS CURRENTLY UNDER ATTACK IN
JOHNSTON V. UNITED STATES, CIVIL ACTION NO. 1408, PENDING IN THE
WESTERN DISTRICT OF OKLAHOMA. 

THE COMMISSION'S ORDER WAS NOT IN EFFECT IN 1940 WHEN THE PRESENT
SUIT WAS BROUGHT FOR VIOLATIONS OF THE STATE LAW IN THAT YEAR, AND THE
COMMISSION'S ORDER IS INAPPLICABLE TO THE TRAIN OPERATIONS HERE CHARGED
AS VIOLATIONS.  HENCE THE QUESTION HERE IS NOT OF THE EFFECT OF THE
COMMISSION'S ORDER, WHICH WE ASSUME FOR PURPOSES OF DECISION TO BE
VALID, BUT WHETHER THE GRANT OF POWER TO THE COMMISSION OPERATED TO
SUPERSEDE THE STATE ACT BEFORE THE COMMISSION'S ORDER.  WE ARE OF
OPINION THAT, IN THE ABSENCE OF ADMINISTRATIVE IMPLEMENTATION BY THE
COMMISSION, SEC. 1 DOES NOT OF ITSELF CURTAIL STATE POWER TO REGULATE
TRAIN LENGTHS.  THE PROVISIONS UNDER WHICH THE COMMISSION PURPORTED TO
ACT, PHRASED IN BROAD AND GENERAL LANGUAGE, DO NOT IN TERMS DEAL WITH
THAT SUBJECT.  WE DO NOT GAIN EITHER FROM THEIR WORDS OR FROM THE
LEGISLATIVE HISTORY ANY HINT THAT CONGRESS IN ENACTING THEM INTENDED,
APART FROM COMMISSION ACTION, TO SUPERSEDE STATE LAWS REGULATING TRAIN
LENGTHS.  WE CAN HARDLY SUPPOSE THAT CONGRESS, MERELY BY CONFERRING
AUTHORITY ON THE COMMISSION TO REGULATE CAR SERVICE IN AN "EMERGENCY,"
INTENDED TO RESTRICT THE EXERCISE, OTHERWISE LAWFUL, OF STATE POWER TO
REGULATE TRAIN LENGTHS BEFORE THE COMMISSION FINDS AN "EMERGENCY" TO
EXIST. 

CONGRESS, IN ENACTING LEGISLATION WITHIN ITS CONSTITUTIONAL AUTHORITY
OVER INTERSTATE COMMERCE, WILL NOT BE DEEMED TO HAVE INTENDED TO STRIKE
DOWN A STATE STATUTE DESIGNED TO PROTECT THE HEALTH AND SAFETY OF THE
PUBLIC UNLESS ITS PURPOSE TO DO SO IS CLEARLY MANIFESTED, REID V.
COLORADO, 187 U.S. 137, 148; MISSOURI PACIFIC R. CO. V. LARABEE MILLS,
211 U.S. 612, 621, ET SEQ.; MISSOURI, K. & T.R. CO. V. HARRIS, 234 U.S.
412, 418-419; WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79, 85; ALLEN
BRADLEY LOCAL V. BOARD, 315 U.S. 740, 749, OR UNLESS THE STATE LAW, IN
TERMS OR IN ITS PRACTICAL ADMINISTRATION, CONFLICTS WITH THE ACT OF
CONGRESS, OR PLAINLY AND PALPABLY INFRINGES ITS POLICY.  SINNOT V.
DAVENPORT, 22 HOW.  227, 243; MISSOURI, K. & T.R. CO. V. HABER, 169
U.S. 613, 623; SAVAGE V. JONES, 225 U.S. 501, 533; CAREY V. SOUTH
DAKOTA, 250 U.S. 118, 122; ATCHISON, T. & S.F.R. CO. V. RAILROAD
COMM'N, 283 U.S. 380, 391; TOWNSEND V. YEOMANS, 301 U.S. 441, 454. 

THE CONTENTION, FAINTLY URGED, THAT THE PROVISIONS OF THE SAFETY
APPLIANCE ACT, 45 U.S.C. SECS. 1 AND 9, PROVIDING FOR BRAKES ON TRAINS,
AND OF SEC. 25 OF PART I OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
26(B), PERMITTING THE COMMISSION TO ORDER THE INSTALLATION OF TRAIN
STOP AND CONTROL DEVICES, OPERATE OF THEIR OWN FORCE TO EXCLUDE STATE
REGULATION OF TRAIN LENGTHS, HAS EVEN LESS SUPPORT.  CONGRESS, ALTHOUGH
ASKED TO DO SO,  FN1  HAS DECLINED TO PASS LEGISLATION SPECIFICALLY
LIMITING TRAINS TO SEVENTY CARS.  WE ARE THEREFORE BROUGHT TO
APPELLANT'S PRINCIPAL CONTENTION, THAT THE STATE STATUTE CONTRAVENES
THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION. 

ALTHOUGH THE COMMERCE CLAUSE CONFERRED ON THE NATIONAL GOVERNMENT
POWER TO REGULATE COMMERCE, ITS POSSESSION OF THE POWER DOES NOT
EXCLUDE ALL STATE POWER OF REGULATION.  EVER SINCE WILLSON V. BLACK
BIRD CREEK MARSH CO., 2 PET. 245, AND COOLEY V. BOARD OF WARDENS, 12
HOW.  299, IT HAS BEEN RECOGNIZED THAT, IN THE ABSENCE OF CONFLICTING
LEGISLATION BY CONGRESS, THERE IS A RESIDUUM OF POWER IN THE STATE TO
MAKE LAWS GOVERNING MATTERS OF LOCAL CONCERN WHICH NEVERTHELESS IN SOME
MEASURE AFFECT INTERSTATE COMMERCE OR EVEN, TO SOME EXTENT, REGULATE
IT.  MINNESOTA RATE CASES, 230 U.S. 352, 399-400; SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177, 187, ET SEQ.; CALIFORNIA
V. THOMPSON, 313 U.S. 109, 113-14 AND CASES CITED; PARKER V. BROWN, 317
U.S. 341, 359-60.  THUS THE STATES MAY REGULATE MATTERS WHICH, BECAUSE
OF THEIR NUMBER AND DIVERSITY, MAY NEVER BE ADEQUATELY DEALT WITH BY
CONGRESS.  COOLEY V. BOARD OF WARDENS, SUPRA, 319; SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, 185; CALIFORNIA V. THOMPSON,
SUPRA, 113; DUCKWORTH V. ARKANSAS, 314 U.S. 390, 394; PARKER V. BROWN,
SUPRA, 362, 363.  WHEN THE REGULATION OF MATTERS OF LOCAL CONCERN IS
LOCAL IN CHARACTER AND EFFECT, AND ITS IMPACT ON THE NATIONAL COMMERCE
DOES NOT SERIOUSLY INTERFERE WITH ITS OPERATION, AND THE CONSEQUENT
INCENTIVE TO DEAL WITH THEM NATIONALLY IS SLIGHT, SUCH REGULATION HAS
BEEN GENERALLY HELD TO BE WITHIN STATE AUTHORITY.  SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, 188 AND CASES CITED; LONE STAR
GAS CO. V. TEXAS, 304 U.S. 224, 238; MILK BOARD V. EISENBERG CO., 306
U.S. 346, 351; MAURER V. HAMILTON, 309 U.S. 598, 603; CALIFORNIA V.
THOMPSON, SUPRA, 113-14 AND CASES CITED. 

BUT EVER SINCE GIBBONS V. OGDEN, 9 WHEAT.  1, THE STATES HAVE NOT
BEEN DEEMED TO HAVE AUTHORITY TO IMPEDE SUBSTANTIALLY THE FREE FLOW OF
COMMERCE FROM STATE TO STATE, OR TO REGULATE THOSE PHASES OF THE
NATIONAL COMMERCE WHICH, BECAUSE OF THE NEED OF NATIONAL UNIFORMITY,
DEMAND THAT THEIR REGULATION, IF ANY, BE PRESCRIBED BY A SINGLE
AUTHORITY N2.  COOLEY V. BOARD OF WARDENS, SUPRA, 319; LEISY V. HARDIN,
135 U.S. 100, 108, 109; MINNESOTA RATE CASES, SUPRA, 399-400; EDWARDS
V. CALIFORNIA, 314 U.S. 160, 176.  WHETHER OR NOT THIS LONG-RECOGNIZED
DISTRIBUTION OF POWER BETWEEN THE NATIONAL AND THE STATE GOVERNMENTS IS
PREDICATED UPON THE IMPLICATIONS OF THE COMMERCE CLAUSE ITSELF, BROWN
V. MARYLAND, 12 WHEAT.  419, 447; MINNESOTA RATE CASES, SUPRA, 399,
400; PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553, 596; BALDWIN V.
SEELIG, 294 U.S. 511, 522; SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL
BROS., SUPRA, 185, OR UPON THE PRESUMED INTENTION OF CONGRESS, WHERE
CONGRESS HAS NOT SPOKEN, WELTON V. MISSOURI, 91 U.S. 275, 282; HALL V.
DECUIR, 95 U.S. 485, 490; BROWN V. HOUSTON, 114 U.S. 622, 631; BOWMAN
V. CHICAGO & N.W.R. CO., 125 U.S. 465, 481-2; LEISY V. HARDIN, SUPRA,
109; IN RE RAHRER, 140 U.S. 545, 559-60; BRENNAN V. TITUSVILLE, 153
U.S. 289, 302; COVINGTON & C. BRIDGE CO. V. KENTUCKY, 154 U.S. 204,
212; GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466, 479, N.,
DOWLING, INTERSTATE COMMERCE AND STATE POWER, 27 VA. LAW REV. 1, THE
RESULT IS THE SAME. 

IN THE APPLICATION OF THESE PRINCIPLES SOME ENACTMENTS MAY BE FOUND
TO BE PLAINLY WITHIN AND OTHERS PLAINLY WITHOUT STATE POWER.  BUT
BETWEEN THESE EXTREMES LIES THE INFINITE VARIETY OF CASES, IN WHICH
REGULATION OF LOCAL MATTERS MAY ALSO OPERATE AS A REGULATION OF
COMMERCE, IN WHICH RECONCILIATION OF THE CONFLICTING CLAIMS OF STATE
AND NATIONAL POWER IS TO BE ATTAINED ONLY BY SOME APPRAISAL AND
ACCOMMODATION OF THE COMPETING DEMANDS OF THE STATE AND NATIONAL
INTERESTS INVOLVED.  PARKER V. BROWN, SUPRA, 362; TERMINAL RAILROAD
ASSN. V. BROTHERHOOD, 318 U.S. 1, 8; SEE DISANTO V. PENNSYLVANIA, 273
U.S. 34, 44(AND COMPARE CALIFORNIA V. THOMPSON, SUPRA); ILLINOIS GAS
CO. V. PUBLIC SERVICE CO., 314 U.S. 498, 504-5. 

FOR A HUNDRED YEARS IT HAS BEEN ACCEPTED CONSTITUTIONAL DOCTRINE THAT
THE COMMERCE CLAUSE, WITHOUT THE AID OF CONGRESSIONAL LEGISLATION, THUS
AFFORDS SOME PROTECTION FROM STATE LEGISLATION INIMICAL TO THE NATIONAL
COMMERCE, AND THAT IN SUCH CASES, WHERE CONGRESS HAS NOT ACTED, THIS
COURT, AND NOT THE STATE LEGISLATURE, IS UNDER THE COMMERCE CLAUSE THE
FINAL ARBITER OF THE COMPETING DEMANDS OF STATE AND NATIONAL
INTERESTS.  COOLEY V. BOARD OF WARDENS, SUPRA; KANSAS CITY SOUTHERN R.
CO. V. KAW VALLEY DISTRICT, 233 U.S. 75, 79; SOUTH COVINGTON R. CO. V.
COVINGTON, 235 U.S. 537, 546; MISSOURI, K. & T.R. CO. V. TEXAS, 245
U.S. 484, 488; ST. LOUIS & S.F.R. CO. V. PUBLIC SERVICE COMM'N, 254
U.S. 535, 537; FOSTER-FOUNTAIN PACKING CO. V. HAYDEL, 278 U.S. 1, 10;
GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S. 434, 441; MCCARROLL V.
DIXIE LINES, 309 U.S. 176. 

CONGRESS HAS UNDOUBTED POWER TO REDEFINE THE DISTRIBUTION OF POWER
OVER INTERSTATE COMMERCE.  IT MAY EITHER PERMIT THE STATES TO REGULATE
THE COMMERCE IN A MANNER WHICH WOULD OTHERWISE NOT BE PERMISSIBLE, IN
RE RAHRER, SUPRA, 561-62; ADAMS EXPRESS CO. V. KENTUCKY, 238 U.S. 190,
198; ROSENBERGER V. PACIFIC EXPRESS CO., 241 U.S. 48, 50, 51; CLARK
DISTILLING CO. V. WESTERN MARYLAND R. CO., 242 U.S. 311, 325-6;
WHITFIELD V. OHIO, 297 U.S. 431, 438-40; KENTUCKY WHIP & COLLAR CO. V.
ILLINOIS CENTRAL R. CO., 299 U.S. 334, 350-51; HOOVEN & ALLISON CO. V.
EVATT, 324 U.S. 652, 679, OR EXCLUDE STATE REGULATION EVEN OF MATTERS
OF PECULIARLY LOCAL CONCERN WHICH NEVERTHELESS AFFECT INTERSTATE
COMMERCE.  ADDYSTON PIPE & STEEL CO. V. UNITED STATES, 175 U.S. 211,
230; LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY, 219 U.S. 467; HOUSTON,
E. & W.T.R. CO. V. UNITED STATES, 234 U.S. 342; AMERICAN EXPRESS CO. V.
CALDWELL, 244 U.S. 617, 626; ILLINOIS CENTRAL R. CO. V. PUBLIC
UTILITIES COMM'N, 245 U.S. 493, 506; NEW YORK V. UNITED STATES, 257
U.S. 591, 601; LOUISIANA PUBLIC SERVICE COMM'N V. TEXAS & N.O.R. CO.,
284 U.S. 125, 130; PENNSYLVANIA R. CO. V. ILLINOIS BRICK CO., 297 U.S.
447, 459. 

BUT IN GENERAL CONGRESS HAS LEFT IT TO THE COURTS TO FORMULATE THE
RULES THUS INTERPRETING THE COMMERCE CLAUSE IN ITS APPLICATION,
DOUBTLESS BECAUSE IT HAS APPRECIATED THE DESTRUCTIVE CONSEQUENCES TO
THE COMMERCE OF THE NATION IF THEIR PROTECTION WERE WITHDRAWN, GWIN,
WHITE & PRINCE V. HENNEFORD, SUPRA, 441, AND HAS BEEN AWARE THAT IN
THEIR APPLICATION STATE LAWS WILL NOT BE INVALIDATED WITHOUT THE
SUPPORT OF RELEVANT FACTUAL MATERIAL WHICH WILL "AFFORD A SURE BASIS"
FOR AN INFORMED JUDGMENT.  TERMINAL RAILROAD ASSN. V. BROTHERHOOD,
SUPRA, 8; SOUTHERN R. CO. V. KING, 217 U.S. 524.  MEANWHILE, CONGRESS
HAS ACCOMMODATED ITS LEGISLATION, AS HAVE THE STATES, TO THESE RULES AS
AN ESTABLISHED FEATURE OF OUR CONSTITUTIONAL SYSTEM.  THERE HAS THUS
BEEN LEFT TO THE STATES WIDE SCOPE FOR THE REGULATION OF MATTERS OF
LOCAL STATE CONCERN, EVEN THOUGH IT IN SOME MEASURE AFFECTS THE
COMMERCE, PROVIDED IT DOES NOT MATERIALLY RESTRICT THE FREE FLOW OF
COMMERCE ACROSS STATE LINES, OR INTERFERE WITH IT IN MATTERS WITH
RESPECT TO WHICH UNIFORMITY OF REGULATION IS OF PREDOMINANT NATIONAL
CONCERN. 

HENCE THE MATTERS FOR ULTIMATE DETERMINATION HERE ARE THE NATURE AND
EXTENT OF THE BURDEN WHICH THE STATE REGULATION OF INTERSTATE TRAINS,
ADOPTED AS A SAFETY MEASURE, IMPOSES ON INTERSTATE COMMERCE, AND
WHETHER THE RELATIVE WEIGHTS OF THE STATE AND NATIONAL INTERESTS
INVOLVED ARE SUCH AS TO MAKE INAPPLICABLE THE RULE, GENERALLY OBSERVED,
THAT THE FREE FLOW OF INTERSTATE COMMERCE AND ITS FREEDOM FROM LOCAL
RESTRAINTS IN MATTERS REQUIRING UNIFORMITY OF REGULATION ARE INTERESTS
SAFEGUARDED BY THE COMMERCE CLAUSE FROM STATE INTERFERENCE. 

WHILE THIS COURT IS NOT BOUND BY THE FINDINGS OF THE STATE COURT, AND
MAY DETERMINE FOR ITSELF THE FACTS OF A CASE UPON WHICH AN ASSERTED
FEDERAL RIGHT DEPENDS, HOOVEN & ALLISON CO. V. EVATT, SUPRA, P. 659,
AND CASES CITED, THE FACTS FOUND BY THE STATE TRIAL COURT SHOWING THE
NATURE OF THE INTERSTATE COMMERCE INVOLVED, AND THE EFFECT UPON IT OF
THE TRAIN LIMIT LAW, ARE NOT SERIOUSLY QUESTIONED.  ITS FINDINGS WITH
RESPECT TO THE NEED FOR AND EFFECT OF THE STATUTE AS A SAFETY MEASURE,
ALTHOUGH CHALLENGED IN SOME PARTICULARS WHICH WE DO NOT REGARD AS
MATERIAL TO OUR DECISION, ARE LIKEWISE SUPPORTED BY EVIDENCE.  TAKEN
TOGETHER THE FINDINGS SUPPLY AN ADEQUATE BASIS FOR DECISION OF THE
CONSTITUTIONAL ISSUE. 

THE FINDINGS SHOW THAT THE OPERATION OF LONG TRAINS, THAT IS TRAINS
OF MORE THAN FOURTEEN PASSENGER AND MORE THAN SEVENTY FREIGHT CARS, IS
STANDARD PRACTICE OVER THE MAIN LINES OF THE RAILROADS OF THE UNITED
STATES, AND THAT, IF THE LENGTH OF TRAINS IS TO BE REGULATED AT ALL,
NATIONAL UNIFORMITY IN THE REGULATION ADOPTED, SUCH AS ONLY CONGRESS
CAN PRESCRIBE, IS PRACTICALLY INDISPENSABLE TO THE OPERATION OF AN
EFFICIENT AND ECONOMICAL NATIONAL RAILWAY SYSTEM.  ON MANY RAILROADS
PASSENGER TRAINS OF MORE THAN FOURTEEN CARS AND FREIGHT TRAINS OF MORE
THAN SEVENTY CARS ARE OPERATED, AND ON SOME SYSTEMS FREIGHT TRAINS ARE
RUN RANGING FROM ONE HUNDRED AND TWENTY-FIVE TO ONE HUNDRED AND SIXTY
CARS IN LENGTH.  OUTSIDE OF ARIZONA, WHERE THE LENGTH OF TRAINS IS NOT
RESTRICTED, APPELLANT RUNS A SUBSTANTIAL PROPORTION OF LONG TRAINS.  IN
1939 ON ITS COMPARABLE ROUTE FOR THROUGH TRAFFIC THROUGH UTAH AND
NEVADA FROM 66 TO 85% OF ITS FREIGHT TRAINS WERE OVER SEVENTY CARS IN
LENGTH AND OVER 43% OF ITS PASSENGER TRAINS INCLUDED MORE THAN FOURTEEN
PASSENGER CARS. 

IN ARIZONA, APPROXIMATELY 93% OF THE FREIGHT TRAFFIC AND 95% OF THE
PASSENGER TRAFFIC IS INTERSTATE.  BECAUSE OF THE TRAIN LIMIT LAW
APPELLANT IS REQUIRED TO HAUL OVER 30% MORE TRAINS IN ARIZONA THAN
WOULD OTHERWISE HAVE BEEN NECESSARY.  THE RECORD SHOWS A DEFINITE
RELATIONSHIP BETWEEN OPERATING COSTS AND THE LENGTH OF TRAINS, THE
INCREASE IN LENGTH RESULTING IN A REDUCTION OF OPERATING COSTS PER
CAR.  THE ADDITIONAL COST OF OPERATION OF TRAINS COMPLYING WITH THE
TRAIN LIMIT LAW IN ARIZONA AMOUNTS FOR THE TWO RAILROADS TRAVERSING
THAT STATE TO ABOUT $1,000,000 A YEAR.  THE REDUCTION IN TRAIN LENGTHS
ALSO IMPEDES EFFICIENT OPERATION.  MORE LOCOMOTIVES AND MORE MANPOWER
ARE REQUIRED; THE NECESSARY CONVERSION AND RECONVERSION OF TRAIN
LENGTHS AT TERMINALS AND THE DELAY CAUSED BY BREAKING UP AND REMAKING
LONG TRAINS UPON ENTERING AND LEAVING THE STATE IN ORDER TO COMPLY WITH
THE LAW, DELAYS THE TRAFFIC AND DIMINISHES ITS VOLUME MOVED IN A GIVEN
TIME, ESPECIALLY WHEN TRAFFIC IS HEAVY. 

TO RELIEVE THE RAILROADS OF THESE BURDENS, DURING THE WAR EMERGENCY
ONLY, THE INTERSTATE COMMERCE COMMISSION, ACTING UNDER SEC. 1 OF THE
INTERSTATE COMMERCE ACT, SUSPENDED THE OPERATION OF THE STATE LAW FOR
THE DURATION OF THE WAR BY ITS ORDER OF SEPTEMBER 15, 1942, TO WHICH WE
HAVE REFERRED.  IN SUPPORT OF THE ORDER THE COMMISSION DECLARED:  "IT
WAS DESIGNED TO SAVE MANPOWER, MOTIVE POWER, ENGINE-MILES AND TRAIN
MILES; TO AVOID DELAY IN THE MOVEMENT OF TRAINS; TO INCREASE THE
EFFICIENT USE OF LOCOMOTIVES AND CARS AND TO AUGMENT THE AVAILABLE
SUPPLY THEREOF; AND TO RELIEVE CONGESTION AT TERMINALS CAUSED BY
SETTING OUT AND PICKING UP CARS ON EACH SIDE OF THE TRAIN-LIMIT LAW
STATES."  IN THE MATTER OF SERVICE ORDER NO. 85, 256 I.C.C. 523, 524. 
APPELLANT, BECAUSE OF ITS PAST COMPLIANCE WITH THE ARIZONA TRAIN LIMIT
LAW, HAS BEEN UNABLE TO AVAIL ITSELF FULLY OF THE BENEFITS OF THE
SUSPENSION ORDER BECAUSE SOME OF ITS EQUIPMENT AND THE LENGTH OF ITS
SIDINGS IN ARIZONA ARE NOT SUITABLE FOR THE OPERATION OF LONG TRAINS. 
ENGINES CAPABLE OF HAULING LONG TRAINS WERE NOT IN SERVICE.  IT CAN
ENGAGE IN LONG TRAIN OPERATIONS TO THE BEST ADVANTAGE ONLY BY
REBUILDING ITS ROAD TO SOME EXTENT AND BY CHANGING OR ADDING TO ITS
MOTIVE POWER EQUIPMENT, WHICH IT DESIRES TO DO IN ORDER TO SECURE MORE
EFFICIENT AND ECONOMICAL OPERATION OF ITS TRAINS. 

THE UNCHALLENGED FINDINGS LEAVE NO DOUBT THAT THE ARIZONA TRAIN LIMIT
LAW IMPOSES A SERIOUS BURDEN ON THE INTERSTATE COMMERCE CONDUCTED BY
APPELLANT.  IT MATERIALLY IMPEDES THE MOVEMENT OF APPELLANT'S
INTERSTATE TRAINS THROUGH THAT STATE AND INTERPOSES A SUBSTANTIAL
OBSTRUCTION TO THE NATIONAL POLICY PROCLAIMED BY CONGRESS, TO PROMOTE
ADEQUATE, ECONOMICAL AND EFFICIENT RAILWAY TRANSPORTATION SERVICE. 
INTERSTATE COMMERCE ACT, PRECEDING SEC. 1, 54 STAT. 899.  ENFORCEMENT
OF THE LAW IN ARIZONA, WHILE TRAIN LENGTHS REMAIN UNREGULATED OR ARE
REGULATED BY VARYING STANDARDS IN OTHER STATES, MUST INEVITABLY RESULT
IN AN IMPAIRMENT OF UNIFORMITY OF EFFICIENT RAILROAD OPERATION BECAUSE
THE RAILROADS ARE SUBJECTED TO REGULATION WHICH IS NOT UNIFORM IN ITS
APPLICATION.  COMPLIANCE WITH A STATE STATUTE LIMITING TRAIN LENGTHS
REQUIRES INTERSTATE TRAINS OF A LENGTH LAWFUL IN OTHER STATES TO BE
BROKEN UP AND RECONSTITUTED AS THEY ENTER EACH STATE ACCORDING AS IT
MAY IMPOSE VARYING LIMITATIONS UPON TRAIN LENGTHS.  THE ALTERNATIVE IS
FOR THE CARRIER TO CONFORM TO THE LOWEST TRAIN LIMIT RESTRICTION OF ANY
OF THE STATES THROUGH WHICH ITS TRAINS PASS, WHOSE LAWS THUS CONTROL
THE CARRIERS' OPERATIONS BOTH WITHIN AND WITHOUT THE REGULATING STATE. 

ALTHOUGH THE SEVENTY CAR MAXIMUM FOR FREIGHT TRAINS IS THE LIMITATION
WHICH HAS BEEN MOST COMMONLY PROPOSED, VARIOUS BILLS INTRODUCED IN THE
STATE LEGISLATURES PROVIDED FOR MAXIMUM FREIGHT TRAIN LENGTHS OF FROM
FIFTY TO ONE HUNDRED AND TWENTY-FIVE CARS, AND MAXIMUM PASSENGER TRAIN
LENGTHS OF FROM TEN TO EIGHTEEN CARS.  FN3  WITH SUCH LAWS IN FORCE IN
STATES WHICH ARE INTERSPERSED WITH THOSE HAVING NO LIMIT ON TRAIN
LENGTHS, THE CONFUSION AND DIFFICULTY WITH WHICH INTERSTATE OPERATIONS
WOULD BE BURDENED UNDER THE VARIED SYSTEM OF STATE REGULATION AND THE
UNSATISFIED NEED FOR UNIFORMITY IN SUCH REGULATION, IF ANY, ARE
EVIDENT.  FN4 

AT PRESENT THE SEVENTY FREIGHT CAR LAWS ARE ENFORCED ONLY IN ARIZONA
AND OKLAHOMA, WITH A FOURTEEN CAR PASSENGER CAR LIMIT IN ARIZONA.  THE
RECORD HERE SHOWS THAT THE ENFORCEMENT OF THE ARIZONA STATUTE RESULTS
IN FREIGHT TRAINS BEING BROKEN UP AND REFORMED AT THE CALIFORNIA BORDER
AND IN NEW MEXICO, SOME DISTANCE FROM THE ARIZONA LINE.  FREQUENTLY IT
IS NOT FEASIBLE TO OPERATE A NEWLY ASSEMBLED TRAIN FROM THE NEW MEXICO
YARD NEAREST TO ARIZONA, WITH THE RESULT THAT THE ARIZONA LIMITATION
GOVERNS THE FLOW OF TRAFFIC AS FAR EAST AS EL PASO, TEXAS.  FOR SIMILAR
REASONS THE ARIZONA LAW OFTEN CONTROLS THE LENGTH OF PASSENGER TRAINS
ALL THE WAY FROM LOS ANGELES TO EL PASO.  FN5 

IF ONE STATE MAY REGULATE TRAIN LENGTHS, SO MAY ALL THE OTHERS, AND
THEY NEED NOT PRESCRIBE THE SAME MAXIMUM LIMITATION.  THE PRACTICAL
EFFECT OF SUCH REGULATION IS TO CONTROL TRAIN OPERATIONS BEYOND THE
BOUNDARIES OF THE STATE EXACTING IT BECAUSE OF THE NECESSITY OF
BREAKING UP AND REASSEMBLING LONG TRAINS AT THE NEAREST TERMINAL POINTS
BEFORE ENTERING AND AFTER LEAVING THE REGULATING STATE.  THE SERIOUS
IMPEDIMENT TO THE FREE FLOW OF COMMERCE BY THE LOCAL REGULATION OF
TRAIN LENGTHS AND THE PRACTICAL NECESSITY THAT SUCH REGULATION, IF ANY,
MUST BE PRESCRIBED BY A SINGLE BODY HAVING A NATION-WIDE AUTHORITY ARE
APPARENT. 

THE TRIAL COURT FOUND THAT THE ARIZONA LAW HAD NO REASONABLE RELATION
TO SAFETY, AND MADE TRAIN OPERATION MORE DANGEROUS.  EXAMINATION OF THE
EVIDENCE AND THE DETAILED FINDINGS MAKES IT CLEAR THAT THIS CONCLUSION
WAS RESTED ON FACTS FOUND WHICH INDICATE THAT SUCH INCREASED DANGER OF
ACCIDENT AND PERSONAL INJURY AS MAY RESULT FROM THE GREATER LENGTH OF
TRAINS IS MORE THAN OFFSET BY THE INCREASE IN THE NUMBER OF ACCIDENTS
RESULTING FROM THE LARGER NUMBER OF TRAINS WHEN TRAIN LENGTHS ARE
REDUCED.  IN CONSIDERING THE EFFECT OF THE STATUTE AS A SAFETY MEASURE,
THEREFORE, THE FACTOR OF CONTROLLING SIGNIFICANCE FOR PRESENT PURPOSES
IS NOT WHETHER THERE IS BASIS FOR THE CONCLUSION OF THE ARIZONA SUPREME
COURT THAT THE INCREASE IN LENGTH OF TRAINS BEYOND THE STATUTORY
MAXIMUM HAS AN ADVERSE EFFECT UPON SAFETY OF OPERATION.  THE DECISIVE
QUESTION IS WHETHER IN THE CIRCUMSTANCES THE TOTAL EFFECT OF THE LAW AS
A SAFETY MEASURE IN REDUCING ACCIDENTS AND CASUALTIES IS SO SLIGHT OR
PROBLEMATICAL AS NOT TO OUTWEIGH THE NATIONAL INTEREST IN KEEPING
INTERSTATE COMMERCE FREE FROM INTERFERENCES WHICH SERIOUSLY IMPEDE IT
AND SUBJECT IT TO LOCAL REGULATION WHICH DOES NOT HAVE A UNIFORM EFFECT
ON THE INTERSTATE TRAIN JOURNEY WHICH IT INTERRUPTS. 

THE PRINCIPAL SOURCE OF DANGER OF ACCIDENT FROM INCREASED LENGTH OF
TRAINS IS THE RESULTING INCREASE OF "SLACK ACTION" OF THE TRAIN.  SLACK
ACTION IS THE AMOUNT OF FREE MOVEMENT OF ONE CAR BEFORE IT TRANSMITS
ITS MOTION TO AN ADJOINING COUPLED CAR.  THIS FREE MOVEMENT RESULTS
FROM THE FACT THAT IN RAILROAD PRACTICE CARS ARE LOOSELY COUPLED, AND
THE COUPLING IS OFTEN COMBINED WITH A SHOCK-ABSORBING DEVICE, A "DRAFT
GEAR," WHICH, UNDER STRESS, SUBSTANTIALLY INCREASES THE FREE MOVEMENT
AS THE TRAIN IS STARTED OR STOPPED.  LOOSE COUPLING IS NECESSARY TO
ENABLE THE TRAIN TO PROCEED FREELY AROUND CURVES AND IS AN AID IN
STARTING HEAVY TRAINS, SINCE THE APPLICATION OF THE LOCOMOTIVE POWER TO
THE TRAIN OPERATES ON EACH CAR IN THE TRAIN SUCCESSIVELY, AND THE POWER
IS THUS UTILIZED TO START ONLY ONE CAR AT A TIME. 

THE SLACK ACTION BETWEEN CARS DUE TO LOOSE COUPLINGS VARIES FROM
SEVEN-EIGHTHS OF AN INCH TO ONE AND ONE-EIGHTH INCHES AND, WITH THE
ADDED FREE MOVEMENT DUE TO THE USE OF DRAFT GEARS, MAY BE AS HIGH AS
SIX OR SEVEN INCHES BETWEEN CARS.  THE LENGTH OF THE TRAIN INCREASES
THE SLACK SINCE THE SLACK ACTION OF A TRAIN IS THE TOTAL OF THE FREE
MOVEMENT BETWEEN ITS SEVERAL CARS.  THE AMOUNT OF SLACK ACTION HAS SOME
EFFECT ON THE SEVERITY OF THE SHOCK OF TRAIN MOVEMENTS, AND ON FREIGHT
TRAINS SOMETIMES RESULTS IN INJURIES TO OPERATIVES, WHICH MOST
FREQUENTLY OCCUR TO OCCUPANTS OF THE CABOOSE.  THE AMOUNT AND SEVERITY
OF SLACK ACTION, HOWEVER, ARE NOT WHOLLY DEPENDENT UPON THE LENGTH OF
TRAIN, AS THEY MAY BE AFFECTED BY THE MODE AND CONDITIONS OF OPERATION
AS TO GRADES, SPEED, AND LOAD.  AND ACCIDENTS DUE TO SLACK ACTION ALSO
OCCUR IN THE OPERATION OF SHORT TRAINS.  ON COMPARISON OF THE NUMBER OF
SLACK ACTION ACCIDENTS IN ARIZONA WITH THOSE IN NEVADA, WHERE THE
LENGTH OF TRAINS IS NOW UNREGULATED, THE TRIAL COURT FOUND THAT WITH
SUBSTANTIALLY THE SAME AMOUNT OF TRAFFIC IN EACH STATE THE NUMBER OF
ACCIDENTS WAS RELATIVELY THE SAME IN LONG AS IN SHORT TRAIN
OPERATIONS.  WHILE ACCIDENTS FROM SLACK ACTION DO OCCUR IN THE
OPERATION OF PASSENGER TRAINS, IT DOES NOT APPEAR THAT THEY ARE MORE
FREQUENT OR THE RESULTING SHOCKS MORE SEVERE ON LONG THAN ON SHORT
PASSENGER TRAINS.  NOR DOES IT APPEAR THAT SLACK ACTION ACCIDENTS
OCCURRING ON PASSENGER TRAINS, WHATEVER THEIR LENGTH, ARE OF SUFFICIENT
SEVERITY TO CAUSE SERIOUS INJURY OR DAMAGE. 

AS THE TRIAL COURT FOUND, REDUCTION OF THE LENGTH OF TRAINS ALSO
TENDS TO INCREASE THE NUMBER OF ACCIDENTS BECAUSE OF THE INCREASE IN
THE NUMBER OF TRAINS.  THE APPLICATION OF THE ARIZONA LAW COMPELLED
APPELLANT TO OPERATE 30.08%, OR 4,304, MORE FREIGHT TRAINS IN 1938 THAN
WOULD OTHERWISE HAVE BEEN NECESSARY.  AND THE RECORD AMPLY SUPPORTS THE
TRIAL COURT'S CONCLUSION THAT THE FREQUENCY OF ACCIDENTS IS CLOSELY
RELATED TO THE NUMBER OF TRAINS RUN.  THE NUMBER OF ACCIDENTS DUE TO
GRADE CROSSING COLLISIONS BETWEEN TRAINS AND MOTOR VEHICLES AND
PEDESTRIANS, AND TO COLLISIONS BETWEEN TRAINS, WHICH ARE USUALLY FAR
MORE SERIOUS THAN THOSE DUE TO SLACK ACTION, AND ACCIDENTS DUE TO
LOCOMOTIVE FAILURES, IN GENERAL VARY WITH THE NUMBER OF TRAINS.  FN6
INCREASE IN THE NUMBER OF TRAINS RESULTS IN MORE STARTS AND STOPS, MORE
"MEETS" AND "PASSES," AND MORE SWITCHING MOVEMENTS, ALL TENDING TO
INCREASE THE NUMBER OF ACCIDENTS NOT ONLY TO TRAIN OPERATIVES AND OTHER
RAILROAD EMPLOYEES, BUT TO PASSENGERS AND MEMBERS OF THE PUBLIC EXPOSED
TO DANGER BY TRAIN OPERATIONS. 

RAILROAD STATISTICS INTRODUCED INTO THE RECORD TEND TO SHOW THAT THIS
IS THE RESULT OF THE APPLICATION OF THE ARIZONA TRAIN LIMIT LAW TO
APPELLANT, BOTH WITH RESPECT TO ALL RAILROAD CASUALTIES WITHIN THE
STATE AND THOSE AFFECTING ONLY TRAINMEN WHOM THE TRAIN LIMIT LAW IS
SUPPOSED TO PROTECT.  THE ACCIDENT RATE IN ARIZONA IS MUCH HIGHER THAN
ON COMPARABLE LINES ELSEWHERE, WHERE THERE IS NO REGULATION OF LENGTH
OF TRAINS.  THE RECORD LENDS SUPPORT TO THE TRIAL COURT'S CONCLUSION
THAT THE TRAIN LENGTH LIMITATION INCREASED RATHER THAN DIMINISHED THE
NUMBER OF ACCIDENTS.  THIS IS SHOWN BY COMPARISON OF APPELLANTHS
OPERATIONS IN ARIZONA WITH THOSE IN NEVADA, FN7  AND BY COMPARISON OF
OPERATIONS OF APPELLANT AND OF THE SANTA FE RAILROAD IN ARIZONA WITH
THOSE OF THE SAME ROADS IN NEW MEXICO,  FN8  AND BY LIKE COMPARISON
BETWEEN APPELLANT'S OPERATIONS IN ARIZONA AND OPERATIONS THROUGHOUT THE
COUNTRY.  FN9    UPON AN EXAMINATION OF THE WHOLE CASE THE TRIAL COURT
FOUND THAT "IF SHORT-TRAIN OPERATION MAY OR SHOULD RESULT IN ANY
DECREASE IN THE NUMBER OR SEVERITY OF THE 'SLACK' OR 'SLACK-SURGE' TYPE
OF ACCIDENTS OR CASUALTIES, SUCH DECREASE IS SUBSTANTIALLY MORE THAN
OFFSET BY THE INCREASED NUMBER OF ACCIDENTS AND CASUALTIES FROM OTHER
CAUSES THAT FOLLOW THE ARBITRARY LIMITATION OF FREIGHT TRAINS TO 70
CARS  ...  AND PASSENGER TRAINS TO 14 CARS." 

WE THINK, AS THE TRIAL COURT FOUND, THAT THE ARIZONA TRAIN LIMIT LAW,
VIEWED AS A SAFETY MEASURE, AFFORDS AT MOST SLIGHT AND DUBIOUS
ADVANTAGE, IF ANY, OVER UNREGULATED TRAIN LENGTHS, BECAUSE IT RESULTS
IN AN INCREASE IN THE NUMBER OF TRAINS AND TRAIN OPERATIONS AND THE
CONSEQUENT INCREASE IN TRAIN ACCIDENTS OF A CHARACTER GENERALLY MORE
SEVERE THAN THOSE DUE TO SLACK ACTION.  ITS UNDOUBTED EFFECT ON THE
COMMERCE IS THE REGULATION, WITHOUT SECURING UNIFORMITY, OF THE LENGTH
OF TRAINS OPERATED IN INTERSTATE COMMERCE, WHICH LACK IS ITSELF A
PRIMARY CAUSE OF PREVENTING THE FREE FLOW OF COMMERCE BY DELAYING IT
AND BY SUBSTANTIALLY INCREASING ITS COST AND IMPAIRING ITS EFFICIENCY. 
IN THESE RESPECTS THE CASE DIFFERS FROM THOSE WHERE A STATE, BY
REGULATORY MEASURES AFFECTING THE COMMERCE, HAS REMOVED OR REDUCED
SAFETY HAZARDS WITHOUT SUBSTANTIAL INTERFERENCE WITH THE INTERSTATE
MOVEMENT OF TRAINS.  SUCH ARE MEASURES ABOLISHING THE CAR STOVE, NEW
YORK, N.H. & H.R. CO. V. NEW YORK, 165 U.S. 628; REQUIRING LOCOMOTIVES
TO BE SUPPLIED WITH ELECTRIC HEADLIGHTS, ATLANTIC COAST LINE R. CO. V.
GEORGIA, 234 U.S. 280; PROVIDING FOR FULL TRAIN CREWS, CHICAGO, R.I. &
P.R. CO. V. ARKANSAS, 219 U.S. 453; ST. LOUIS & I.M.R. CO. V. ARKANSAS,
240 U.S. 518; MISSOURI PACIFIC R. CO. V. NORWOOD, 283 U.S. 249; AND FOR
THE EQUIPMENT OF FREIGHT TRAINS WITH CABOOSES, TERMINAL RAILROAD ASSN.
V. BROTHERHOOD, SUPRA. 

THE PRINCIPLE THAT, WITHOUT CONTROLLING CONGRESSIONAL ACTION, A STATE
MAY NOT REGULATE INTERSTATE COMMERCE SO AS SUBSTANTIALLY TO AFFECT ITS
FLOW OR DEPRIVE IT OF NEEDED UNIFORMITY IN ITS REGULATION IS NOT TO BE
AVOIDED BY "SIMPLY INVOKING THE CONVENIENT APOLOGETICS OF THE POLICE
POWER," KANSAS CITY SOUTHERN R. CO. V. KAW VALLEY DISTRICT, SUPRA, 79;
BUCK V. KUYKENDALL, 267 U.S. 307, 315.  IN THE KAW VALLEY CASE THE
COURT HELD THAT THE STATE WAS WITHOUT CONSTITUTIONAL POWER TO ORDER A
RAILROAD TO REMOVE A RAILROAD BRIDGE OVER WHICH ITS INTERSTATE TRAINS
PASSED, AS A MEANS OF PREVENTING FLOODS IN THE DISTRICT AND OF
IMPROVING ITS DRAINAGE, BECAUSE IT WAS "NOT PRETENDED THAT LOCAL
WELFARE NEEDS THE REMOVAL OF THE DEFENDANTS' BRIDGES AT THE EXPENSE OF
THE DOMINANT REQUIREMENTS OF COMMERCE WITH OTHER STATES, BUT MERELY
THAT IT WOULD BE HELPED BY RAISING THEM."  AND IN SEABOARD AIR LINE R.
CO. V. BLACKWELL, 244 U.S. 310, IT WAS HELD THAT THE INTERFERENCE WITH
INTERSTATE RAIL TRANSPORTATION RESULTING FROM A STATE STATUTE REQUIRING
AS A SAFETY MEASURE THAT TRAINS COME ALMOST TO A STOP AT GRADE
CROSSINGS, OUTWEIGH THE LOCAL INTEREST IN SAFETY, WHEN IT APPEARED THAT
COMPLIANCE INCREASED THE SCHEDULED RUNNING TIME MORE THAN SIX HOURS IN
A DISTANCE OF ONE HUNDRED AND TWENTY-THREE MILES.  CF. SOUTHERN R. CO.
V. KING, SUPRA, WHERE THE CROSSINGS WERE LESS NUMEROUS AND THE BURDEN
TO INTERSTATE COMMERCE WAS NOT SHOWN TO BE HEAVY; AND SEE ERB V.
MORASCH, 177 U.S. 584. 

SIMILARLY THE COMMERCE CLAUSE HAS BEEN HELD TO INVALIDATE LOCAL
"POLICE POWER" ENACTMENTS FIXING THE NUMBER OF CARS IN AN INTERSTATE
TRAIN AND THE NUMBER OF PASSENGERS TO BE CARRIED IN EACH CAR, SOUTH
COVINGTON R. CO. V. COVINGTON, SUPRA, 547; REGULATING THE SEGREGATION
OF COLORED PASSENGERS IN INTERSTATE TRAINS, HALL V. DECUIR, SUPRA, 488
9; REQUIRING BURDENSOME INTRASTATE STOPS OF INTERSTATE TRAINS, ILLINOIS
CENTRAL R. CO. V. ILLINOIS, 163 U.S. 142; CLEVELAND, C., C. & ST. L.R.
CO. V. ILLINOIS, 177 U.S. 514; MISSISSIPPI RAILROAD COMM'N V. ILLINOIS
CENTRAL R. CO., 203 U.S. 335; HERNDON V. CHICAGO, R.I. & P.R. CO., 218
U.S. 135; ST. LOUIS-S.F.R. CO. V. PUBLIC SERVICE COMM'N, 261 U.S. 369;
REQUIRING AN INTERSTATE RAILROAD TO DETOUR ITS THROUGH PASSENGER TRAINS
FOR THE BENEFIT OF A SMALL CITY, ST. LOUIS & S.F.R. CO. V. PUBLIC
SERVICE COMM'N, SUPRA; INTERFERING WITH INTERSTATE COMMERCE BY
REQUIRING INTERSTATE TRAINS TO LEAVE ON TIME, MISSOURI, K. & T.R. CO.
V. TEXAS, 245 U.S. 484; REGULATING CAR DISTRIBUTION TO INTERSTATE
SHIPPERS, ST. LOUIS S.W.R. CO. V. ARKANSAS, 217 U.S. 136; OR
ESTABLISHING VENUE PROVISIONS REQUIRING RAILROADS TO DEFEND ACCIDENT
SUITS AT POINTS DISTANT FROM THE PLACE OF INJURY AND THE RESIDENCE AND
ACTIVITIES OF THE PARTIES, DAVIS V. FARMERS CO-OPERATIVE CO., 262 U.S.
312; MICHIGAN CENTRAL R. CO. V. MIX, 278 U.S. 492; CF. DENVER &
R.G.W.R. CO. V. TERTE, 284 U.S. 284; SEE ALSO BUCK V. KUYKENDALL,
SUPRA; FOSTER-FOUNTAIN PACKING CO. V. HAYDEL, SUPRA; BALDWIN V. SEELIG,
SUPRA, 524; SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, 184
5 N., AND CASES CITED. 

MORE RECENTLY IN KELLY V. WASHINGTON, 302 U.S. 1, 15, WE HAVE POINTED
OUT THAT WHEN A STATE GOES BEYOND SAFETY MEASURES WHICH ARE PERMISSIBLE
BECAUSE ONLY LOCAL IN THEIR EFFECT UPON INTERSTATE COMMERCE, AND
"ATTEMPTS TO IMPOSE PARTICULAR STANDARDS AS TO STRUCTURE, DESIGN,
EQUIPMENT AND OPERATION (OF VESSELS PLYING INTERSTATE) WHICH IN THE
JUDGMENT OF ITS AUTHORITIES MAY BE DESIRABLE BUT PASS BEYOND WHAT IS
PLAINLY ESSENTIAL TO SAFETY AND SEAWORTHINESS, THE STATE WILL ENCOUNTER
THE PRINCIPLE THAT SUCH REQUIREMENTS, IF IMPOSED AT ALL, MUST BE
THROUGH THE ACTION OF CONGRESS WHICH CAN ESTABLISH A UNIFORM RULE. 
WHETHER THE STATE IN A PARTICULAR MATTER GOES TOO FAR MUST BE LEFT TO
BE DETERMINED WHEN THE PRECISE QUESTION ARISES." 

HERE WE CONCLUDE THAT THE STATE DOES GO TOO FAR.  ITS REGULATION OF
TRAIN LENGTHS, ADMITTEDLY OBSTRUCTIVE TO INTERSTATE TRAIN OPERATION,
AND HAVING A SERIOUSLY ADVERSE EFFECT ON TRANSPORTATION EFFICIENCY AND
ECONOMY, PASSES BEYOND WHAT IS PLAINLY ESSENTIAL FOR SAFETY SINCE IT
DOES NOT APPEAR THAT IT WILL LESSEN RATHER THAN INCREASE THE DANGER OF
ACCIDENT.  ITS ATTEMPTED REGULATION OF THE OPERATION OF INTERSTATE
TRAINS CANNOT ESTABLISH NATION-WIDE CONTROL SUCH AS IS ESSENTIAL TO THE
MAINTENANCE OF AN EFFICIENT TRANSPORTATION SYSTEM, WHICH CONGRESS ALONE
CAN PRESCRIBE.  THE STATE INTEREST CANNOT BE PRESERVED AT THE EXPENSE
OF THE NATIONAL INTEREST BY AN ENACTMENT WHICH REGULATES INTERSTATE
TRAIN LENGTHS WITHOUT SECURING SUCH CONTROL, WHICH IS A MATTER OF
NATIONAL CONCERN.  TO THIS THE INTEREST OF THE STATE HERE ASSERTED IS
SUBORDINATE. 

APPELLEES ESPECIALLY RELY ON THE FULL TRAIN CREW CASES, CHICAGO, R.I.
& P.R. CO. V. ARKANSAS, SUPRA; ST. LOUIS & I.M.R. CO. V. ARKANSAS,
SUPRA; MISSOURI PACIFIC R. CO. V. NORWOOD, SUPRA, AND ALSO ON SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, AS SUPPORTING THE
STATE'S AUTHORITY TO REGULATE THE LENGTH OF INTERSTATE TRAINS.  WHILE
THE FULL TRAIN CREW LAWS UNDOUBTEDLY PLACED AN ADDED FINANCIAL BURDEN
ON THE RAILROADS IN ORDER TO SERVE A LOCAL INTEREST, THEY DID NOT
OBSTRUCT INTERSTATE TRANSPORTATION OR SERIOUSLY IMPEDE IT.  THEY HAD NO
EFFECTS OUTSIDE THE STATE BEYOND THOSE OF PICKING UP AND SETTING DOWN
THE EXTRA EMPLOYEES AT THE STATE BOUNDARIES; THEY INVOLVED NO WASTED
USE OF FACILITIES OR SERIOUS IMPAIRMENT OF TRANSPORTATION EFFICIENCY,
WHICH ARE AMONG THE FACTORS OF CONTROLLING WEIGHT HERE.  IN SUSTAINING
THOSE LAWS THE COURT CONSIDERED THE RESTRICTION A MINIMAL BURDEN ON THE
COMMERCE COMPARABLE TO THE LAW REQUIRING THE LICENSING OF ENGINEERS AS
A SAFEGUARD AGAINST THOSE OF RECKLESS AND INTEMPERATE HABITS, SUSTAINED
IN SMITH V. ALABAMA, 124 U.S. 465, OR THOSE AFFLICTED WITH COLOR
BLINDNESS, UPHELD IN NASHVILLE, C. & ST. L.R. CO. V. ALABAMA, 128 U.S.
96, AND OTHER SIMILAR REGULATIONS.  NEW YORK, N.H. & H.R. CO. V. NEW
YORK, SUPRA; ATLANTIC COAST LINE R. CO. V. GEORGIA, SUPRA; CF. COUNTY
OF MOBILE V. KIMBALL, 102 U.S. 691. 

SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, WAS CONCERNED
WITH THE POWER OF THE STATE TO REGULATE THE WEIGHT AND WIDTH OF MOTOR
CARS PASSING INTERSTATE OVER ITS HIGHWAYS, A LEGISLATIVE FIELD OVER
WHICH THE STATE HAS A FAR MORE EXTENSIVE CONTROL THAN OVER INTERSTATE
RAILROADS.  IN THAT CASE, AND IN MAURER V. HAMILTON, SUPRA, WE WERE AT
PAINS TO POINT OUT THAT THERE ARE FEW SUBJECTS OF STATE REGULATION
AFFECTING INTERSTATE COMMERCE WHICH ARE SO PECULIARLY OF LOCAL CONCERN
AS IS THE USE OF THE STATE'S HIGHWAYS.  UNLIKE THE RAILROADS LOCAL
HIGHWAYS ARE BUILT, OWNED AND MAINTAINED BY THE STATE OR ITS MUNICIPAL
SUBDIVISIONS.  THE STATE IS RESPONSIBLE FOR THEIR SAFE AND ECONOMICAL
ADMINISTRATION.  REGULATIONS AFFECTING THE SAFETY OF THEIR USE MUST BE
APPLIED ALIKE TO INTRASTATE AND INTERSTATE TRAFFIC.  THE FACT THAT THEY
AFFECT ALIKE SHIPPERS IN INTERSTATE AND INTRASTATE COMMERCE IN GREAT
NUMBERS, WITHIN AS WELL AS WITHOUT THE STATE, IS A SAFEGUARD AGAINST
REGULATORY ABUSES.  THEIR REGULATION IS AKIN TO QUARANTINE MEASURES,
GAME LAWS, AND LIKE LOCAL REGULATIONS OF RIVERS, HARBORS, PIERS, AND
DOCKS, WITH RESPECT TO WHICH THE STATE HAS EXCEPTIONAL SCOPE FOR THE
EXERCISE OF ITS REGULATORY POWER, AND WHICH, CONGRESS NOT ACTING, HAVE
BEEN SUSTAINED EVEN THOUGH THEY MATERIALLY INTERFERE WITH INTERSTATE
COMMERCE (303 U.S. AT 187-188 AND CASES CITED). 

THE CONTRAST BETWEEN THE PRESENT REGULATION AND THE FULL TRAIN CREW
LAWS IN POINT OF THEIR EFFECTS ON THE COMMERCE, AND THE LIKE CONTRAST
WITH THE HIGHWAY SAFETY REGULATIONS, IN POINT OF THE NATURE OF THE
SUBJECT OF REGULATION AND THE STATE'S INTEREST IN IT, ILLUSTRATE AND
EMPHASIZE THE CONSIDERATIONS WHICH ENTER INTO A DETERMINATION OF THE
RELATIVE WEIGHTS OF STATE AND NATIONAL INTERESTS WHERE STATE REGULATION
AFFECTING INTERSTATE COMMERCE IS ATTEMPTED.  HERE EXAMINATION OF ALL
THE RELEVANT FACTORS MAKES IT PLAIN THAT THE STATE INTEREST IS
OUTWEIGHED BY THE INTEREST OF THE NATION IN AN ADEQUATE, ECONOMICAL AND
EFFICIENT RAILWAY TRANSPORTATION SERVICE, WHICH MUST PREVAIL. 
REVERSED. 

FN1  SEE SENATE REPORT NO. 416, 75TH CONG., 1ST SESS.; 81 CONG. REC.
7596; AND HEARINGS BEFORE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, 75TH CONG., 3D SESS., S. 69, TRAIN LENGTHS. 

FN2  IN APPLYING THIS RULE THE COURT HAS OFTEN RECOGNIZED THAT TO THE
EXTENT THAT THE BURDEN OF STATE REGULATION FALLS ON INTERESTS OUTSIDE
THE STATE, IT IS UNLIKELY TO BE ALLEVIATED BY THE OPERATION OF THOSE
POLITICAL RESTRAINTS NORMALLY EXERTED WHEN INTERESTS WITHIN THE STATE
ARE AFFECTED.  COOLEY V. BOARD OF WARDENS, SUPRA, 315; GILMAN V.
PHILADELPHIA, 3 WALL.  713, 731; ESCANABA CO. V. CHICAGO, 107 U.S. 678,
683; ROBBINS V. SHELBY COUNTY TAXING DIST., 120 U.S. 489, 499; LAKE
SHORE & M.S.R. CO. V. OHIO, 173 U.S. 285, 294; SOUTH CAROLINA HIGHWAY
DEPT. V. BARNWELL BROS. SUPRA, 185, N.; MCGOLDRICK V. BERWIND-WHITE
CO., 309 U.S. 33, 46, N.; CF. MCCULLOCH V. MARYLAND, 4 WHEAT.  316,
428; POUND V. TURCK, 95 U.S. 459, 464; GLOUCESTER FERRY CO. V.
PENNSYLVANIA, 114 U.S. 196, 205; HELVERING V. GERHARDT, 304 U.S. 405,
412. 

FN3  ONE HUNDRED SIXTY-FOUR BILLS LIMITING TRAIN LENGTHS HAVE BEEN
INTRODUCED IN STATE LEGISLATURES SINCE 1920, OF WHICH ONLY THREE WERE
PASSED, IN NEVADA, LOUISIANA AND OKLAHOMA.  THE NEVADA AND LOUISIANA
LAWS WERE HELD UNCONSTITUTIONAL AND NEVER ENFORCED.  SOUTHERN PACIFIC
CO. V. MASHBURN, 18 F.SUPP.  393; TEXAS & N.O.R. CO. V. MARTIN (NO. 428
- EQUITY, E.D. OF LA. 1936), UNREPORTED.  THE ARIZONA LAW, PASSED IN
1912, WAS HELD UNCONSTITUTIONAL IN ATCHISON, T. & S.F.R. CO. V. LA
PRADE, 2 F.SUPP.  855, REVERSED ON OTHER GROUNDS, 289 U.S. 444. 

FN4  HAD THESE BILLS BEEN PASSED A FREIGHT TRAIN RUNNING OVER
ESTABLISHED ROUTES (FROM VIRGINIA TO MICHIGAN FOR EXAMPLE) WOULD
NORMALLY PROCEED THROUGH STATES WITH A SEVENTY-FIVE CAR MAXIMUM
(VIRGINIA), A ONE HUNDRED AND TWENTY-FIVE CAR MAXIMUM (WEST VIRGINIA),
A THREE THOUSAND FOOT MAXIMUM (OHIO), AND A SEVENTY CAR LIMIT
(MICHIGAN).  A TRAIN FROM ARKANSAS TO WISCONSIN MIGHT BE SUBJECTED TO A
FIFTY CAR MAXIMUM (ARKANSAS), ONE-HALF MILE (MISSISSIPPI), THREE
THOUSAND FEET (IOWA), ONE AND A HALF MILES (MINNESOTA), AND THIRTY
THREE HUNDRED FEET (WISCONSIN).  A TRAIN RUNNING FROM NEBRASKA TO
CALIFORNIA MIGHT BE SUBJECT TO A SIXTY, SEVENTY-FIVE OR EIGHTY-FIVE
MAXIMUM IN NEBRASKA, TO A LIMIT FIXED BY COMMISSION IN KANSAS, TO A
SIXTY-FIVE CAR LIMIT IN COLORADO, TO A SEVENTY-FIVE CAR LIMIT IN NEW
MEXICO, TO A SEVENTY CAR LIMIT IN ARIZONA, AND TO A SEVENTY-FOUR CAR
LIMIT IN CALIFORNIA.  A PASSENGER TRAIN MIGHT BE LIMITED TO FOURTEEN
CARS IN NEW JERSEY, TEN IN PENNSYLVANIA AND EIGHTEEN IN WEST VIRGINIA. 

FN5  IN OKLAHOMA THREE LINES RUNNING FROM CHICAGO OR KANSAS CITY WEST
PASS THROUGH OKLAHOMA FOR DISTANCES OF SIXTY, ONE HUNDRED AND SEVENTEEN
AND ONE HUNDRED AND FORTY-THREE MILES.  SINCE NO OTHER STATE THROUGH
WHICH THE TRAFFIC PASSES (EXCEPT ARIZONA) RESTRICTS TRAIN LENGTHS IN
ANY WAY, THE EFFECT OF THE OKLAHOMA LAW IS TO REQUIRE THROUGH TRAINS TO
BE BROKEN UP FOR THE SHORT DISTANCES THEY PASS THROUGH THAT STATE. 

FN6  THE RECORD SHOWS THAT IN 1939 THE NUMBER OF SLACK ACCIDENT
CASUALTIES IN THE UNITED STATES, 399, WAS ONLY 6% OF THE NUMBER OF
TRAIN AND TRAIN SERVICE CASUALTIES TO RAILROAD EMPLOYEES, 6,713.  IN
THAT YEAR THREE OF THE 399 SLACK ACCIDENT CASUALTIES WERE FATAL,
WHEREAS THE AVERAGE NUMBER OF GRADE CROSSING CASUALTIES PER YEAR FROM
1935 TO 1939 WAS 5,718.  AND IN 1939, 1,398 PERSONS WERE KILLED AND
3,999 WERE INJURED IN HIGHWAY, GRADE CROSSING ACCIDENTS.  I.C.C.,
BUREAU OF STATISTICS, ACCIDENT BULLETIN, NO. 108, PP. 22-23.    FN7
WITH PASSENGER TRAFFIC IN NEVADA 78% AS HEAVY AS IN ARIZONA, FROM 1923
TO 1938 TWO HUNDRED AND THIRTY-NINE CASUALTIES WERE CAUSED TO PERSONS
BY PASSENGER TRAINS IN ARIZONA AND ONE HUNDRED AND NINE IN NEVADA. 
BETWEEN 1923 AND 1939 FIVE PERSONS IN NEVADA AND FOURTEEN IN ARIZONA
WERE INJURED BY SUDDEN STOPS OR JERKS ON PASSENGER TRAINS. 

FN8  CASUALTIES TO EMPLOYEES, OCCURRING IN FREIGHT TRAIN OPERATIONS
IN NEW MEXICO, HAVE BEEN SUBSTANTIALLY LESS IN BOTH NUMBER AND
FREQUENCY THAN IN ARIZONA.  FROM 1930 TO 1940 THERE WERE ONE HUNDRED
AND TWENTY-NINE CASUALTIES TO ALL CLASSES OF EMPLOYEES IN NEW MEXICO AT
THE RATE OF 7.97 PER MILLION TRAIN MILES, 12.84 PER HUNDRED MILLION CAR
MILES.  IN ARIZONA THERE WERE TWO HUNDRED AND FIFTY-ONE CASUALTIES TO
EMPLOYEES, AT THE RATE OF 10.03 PER MILLION TRAIN MILES, AND 18.10 PER
HUNDRED MILLION CAR MILES. 

FN9  ON A NATIONAL BASIS THE FINDINGS SHOW THAT WHILE THE NATIONAL
ACCIDENT RATE PER HUNDRED MILLION CAR MILES FOR ALL RAILROAD EMPLOYEES
AND FOR TRAINMEN DECREASED 70% TO 66% RESPECTIVELY BETWEEN 1923-1928
AND 1935-1940, THE RATE FOR THE SOUTHERN PACIFIC IN ARIZONA DECLINED
52.3% AND 53.3%.  APPELLANT'S RATE IN NEVADA DECREASED 71.1% AND
69.1%. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE BLACK, DISSENTING. 

IN HENNINGTON V. GEORGIA, 163 U.S. 299, 304, A CASE WHICH INVOLVED
THE POWER OF A STATE TO REGULATE INTERSTATE TRAFFIC, THIS COURT SAID,
"THE WHOLE THEORY OF OUR GOVERNMENT, FEDERAL AND STATE, IS HOSTILE TO
THE IDEA THAT QUESTIONS OF LEGISLATIVE AUTHORITY MAY DEPEND  ...  UPON
OPINIONS OF JUDGES AS TO THE WISDOM OR WANT OF WISDOM IN THE ENACTMENT
OF LAWS UNDER POWERS CLEARLY CONFERRED UPON THE LEGISLATURE."  WHAT THE
COURT DECIDES TODAY IS THAT IT IS UNWISE GOVERNMENTAL POLICY TO
REGULATE THE LENGTH OF TRAINS.  I AM THEREFORE CONSTRAINED TO NOTE MY
DISSENT. 

FOR MORE THAN A QUARTER OF A CENTURY, RAILROADS AND THEIR EMPLOYEES
HAVE ENGAGED IN CONTROVERSIES OVER THE RELATIVE VIRTUES AND DANGERS OF
LONG TRAINS.  RAILROADS HAVE ARGUED THAT THEY COULD CARRY GODDS AND
PASSENGERS CHEAPER IN LONG TRAINS THAN IN SHORT TRAINS.  THEY HAVE ALSO
ARGUED THAT WHILE THE DANGER OF PERSONAL INJURY TO THEIR EMPLOYEES
MIGHT IN SOME RESPECTS BE GREATER ON ACCOUNT OF THE OPERATION OF LONG
TRAINS, THIS DANGER WAS MORE THAN OFFSET BY AN INCREASED NUMBER OF
ACCIDENTS FROM OTHER CAUSES BROUGHT ABOUT BY THE OPERATION OF A MUCH
LARGER NUMBER OF SHORT TRAINS.  THESE ARGUMENTS HAVE BEEN, AND ARE NOW,
VIGOROUSLY DENIED.  WHILE THERE ARE OTHERS, THE CHIEF CAUSES ASSIGNED
FOR THE BELIEF THAT LONG TRAINS UNNECESSARILY JEOPARDIZE THE LIVES AND
LIMBS OF RAILROAD EMPLOYEES RELATE TO "SLACK ACTION."  CARS COUPLED
TOGETHER RETAIN A CERTAIN FREE PLAY OF MOVEMENT, RANGING BETWEEN 1 1/2
INCHES AND 1 FOOT, AND THIS IS CALLED "SLACK ACTION."  TRAIN BRAKES DO
NOT ORDINARILY APPLY OR RELEASE SIMULTANEOUSLY ON ALL CARS.  THIS
FREQUENTLY RESULTS IN A SEVERE SHOCK OR JAR TO CARS, PARTICULARLY THOSE
IN THE REAR OF A TRAIN.  IT HAS ALWAYS BEEN THE POSITION OF THE
EMPLOYEES THAT THE DANGERS FROM "SLACK ACTION" CORRESPOND TO AND ARE
PROPORTIONATE WITH THE LENGTH OF THE TRAIN.  THE ARGUMENT THAT "SLACK
MOVEMENTS" ARE MORE DANGEROUS IN LONG TRAINS THAN IN SHORT TRAINS SEEMS
NEVER TO HAVE BEEN DENIED.  THE RAILROADS HAVE ANSWERED IT BY WHAT IS
IN EFFECT A PLEA OF CONFESSION AND AVOIDANCE.  THEY SAY THAT THE ADDED
COST OF RUNNING SHORT TRAINS PLACES AN UNCONSTITUTIONAL BURDEN ON
INTERSTATE COMMERCE.  THEIR SECOND ANSWER IS THAT THE OPERATION OF
SHORT TRAINS REQUIRES THE USE OF MORE SEPARATE TRAIN UNITS; THAT A
CERTAIN NUMBER OF ACCIDENTS RESULTING IN INJURY ARE INHERENT IN THE
OPERATION OF EACH UNIT, INJURIES WHICH MAY BE INFLICTED EITHER ON
EMPLOYEES OR ON THE PUBLIC; CONSEQUENTLY, THEY HAVE ASSERTED THAT IT IS
NOT IN THE PUBLIC INTEREST TO PROHIBIT THE OPERATION OF LONG TRAINS. 

IN 1912, THE YEAR ARIZONA BECAME A STATE, ITS LEGISLATURE ADOPTED AND
REFERRED TO THE PEOPLE SEVERAL SAFETY MEASURES CONCERNING THE OPERATION
OF RAILROADS.  ONE OF THESE REQUIRED RAILROADS TO INSTALL ELECTRIC
HEADLIGHTS, A POWER WHICH THE STATE HAD UNDER THIS COURT'S OPINION IN
ATLANTIC COAST LINE R. CO. V. GEORGIA, 234 U.S. 280.  ANOTHER ARIZONA
SAFETY STATUTE SUBMITTED AT THE SAME TIME REQUIRED CERTAIN TESTS AND
SERVICE BEFORE A PERSON COULD ACT AS AN ENGINEER OR TRAIN CONDUCTOR,
AND THEREBY EXERCISED A STATE POWER SIMILAR TO THAT WHICH THIS COURT
UPHELD IN NASHVILLE, C. & ST. L.R. CO. V. ALABAMA, 128 U.S. 96.  THE
THIRD SAFETY STATUTE WHICH THE ARIZONA LEGISLATURE SUBMITTED TO THE
ELECTORATE, AND WHICH WAS ADOPTED BY IT, IS THE TRAIN LIMITATION
STATUTE NOW UNDER CONSIDERATION.  BY ITS ENACTMENT THE LEGISLATURE AND
THE PEOPLE ADOPTED THE VIEWPOINT THAT LONG TRAINS WERE MORE DANGEROUS
THAN SHORT TRAINS, AND LIMITED THE OPERATION OF TRAIN UNITS TO 14 CARS
FOR PASSENGER AND 70 CARS FOR FREIGHT.  THIS SAME QUESTION WAS
CONSIDERED IN OTHER STATES, AND SOME OF THEM, OVER THE VIGOROUS
PROTESTS OF RAILROADS, ADOPTED LAWS SIMILAR TO THE ARIZONA STATUTE. 
FN1 

THIS CONTROVERSY BETWEEN THE RAILROADS AND THEIR EMPLOYEES, WHICH WAS
NATION-WIDE, WAS CARRIED TO CONGRESS.  EXTENSIVE HEARINGS TOOK PLACE. 
THE EMPLOYEES' POSITION WAS URGED BY MEMBERS OF THE VARIOUS
BROTHERHOODS.  THE RAILROADS' VIEWPOINT WAS PRESENTED THROUGH
REPRESENTATIVES OF THEIR NATIONAL ASSOCIATION.  IN 1937, THE SENATE
INTERSTATE COMMERCE COMMITTEE AFTER ITS OWN EXHAUSTIVE HEARINGS
UNANIMOUSLY RECOMMENDED THAT TRAINS BE LIMITED TO 70 CARS AS A SAFETY
MEASURE.  FN2  THE COMMITTEE IN ITS REPORT REVIEWED THE EVIDENCE AND
SPECIFICALLY REFERRED TO THE LARGE AND INCREASING NUMBER OF INJURIES
AND DEATHS SUFFERED BY RAILROAD EMPLOYEES; IT CONCLUDED THAT THE
ADMITTED DANGER FROM SLACK MOVEMENT WAS GREATLY INTENSIFIED BY THE
OPERATION OF LONG TRAINS; THAT SHORT TRAINS REDUCE THIS DANGER; THAT
THE ADDED COST OF SHORT TRAINS TO THE RAILROAD WAS NO JUSTIFICATION FOR
JEOPARDIZING THE SAFETY OF RAILROAD EMPLOYEES; AND THAT THE LEGISLATION
WOULD PROVIDE A GREATER DEGREE OF SAFETY FOR PERSONS AND PROPERTY,
INCREASE PROTECTION FOR RAILWAY EMPLOYEES AND THE PUBLIC, AND IMPROVE
TRANSPORTATION SERVICES FOR SHIPPERS AND CONSUMERS.  THE SENATE PASSED
THE BILL  FN3  BUT THE HOUSE COMMITTEE FAILED TO REPORT IT OUT. 

DURING THE HEARINGS ON THAT MEASURE, FREQUENT REFERENCES WERE MADE TO
THE ARIZONA STATUTE.  IT IS SIGNIFICANT, HOWEVER, THAT AMERICAN
RAILROADS NEVER ONCE ASKED CONGRESS TO EXERCISE ITS UNQUESTIONED POWER
TO ENACT UNIFORM LEGISLATION ON THAT SUBJECT, AND THEREBY INVALIDATE
THE ARIZONA LAW.  THAT WHICH FOR SOME UNEXPLAINED REASON THEY DID NOT
ASK CONGRESS TO DO WHEN IT HAD THE VERY SUBJECT OF TRAIN LENGTH
LIMITATIONS UNDER CONSIDERATION, THEY SHORTLY THEREAFTER ASKED AN
ARIZONA STATE COURT TO DO. 

IN THE STATE COURT A RATHER EXTRAORDINARY "TRIAL" TOOK PLACE. 
CHARGED WITH VIOLATING THE LAW, THE RAILROAD ADMITTED THE CHARGE.  IT
ALLEGED THAT THE LAW WAS UNCONSTITUTIONAL, HOWEVER, AND SOUGHT A TRIAL
OF FACTS ON THAT ISSUE.  THE ESSENCE OF ITS CHARGE OF
UNCONSTITUTIONALITY RESTED ON ONE OF THESE TWO GROUNDS:  (1) THE
LEGISLATURE AND PEOPLE OF ARIZONA ERRED IN 1912 IN DETERMINING THAT THE
RUNNING OF LONG TRAINS WAS DANGEROUS; OR (2) RAILROAD CONDITIONS HAD SO
IMPROVED SINCE 1912 THAT PREVIOUS DANGERS DID NOT EXIST TO THE SAME
EXTENT, AND THAT THE STATUTE SHOULD BE STRICKEN DOWN EITHER BECAUSE IT
CAST AN UNDUE BURDEN ON INTERSTATE COMMERCE BY REASON OF THE ADDED
COST, OR BECAUSE THE CHANGED CONDITIONS HAD RENDERED THE ACT "ARBITRARY
AND UNREASONABLE."  THUS, THE ISSUE WHICH THE COURT "TRIED" WAS NOT
WHETHER THE RAILROAD WAS GUILTY OF VIOLATING THE LAW, BUT WHETHER THE
LAW WAS UNCONSTITUTIONAL EITHER BECAUSE THE LEGISLATURE HAD BEEN GUILTY
OF MISJUDGING THE FACTS CONCERNING THE DEGREE OF THE DANGER OF LONG
TRAINS, OR BECAUSE THE 1912 CONDITIONS OF DANGER NO LONGER EXISTED. 

BEFORE THE STATE TRIAL COURT FINALLY DETERMINED THAT THE DANGERS
FOUND BY THE LEGISLATURE IN 1912 NO LONGER EXISTED, IT HEARD EVIDENCE
OVER A PERIOD OF 5 1/2 MONTHS WHICH APPEARS IN ABOUT 3,000 PAGES OF THE
PRINTED RECORD BEFORE US.  IT THEN ADOPTED FINDINGS OF FACT SUBMITTED
TO IT BY THE RAILROAD, WHICH COVER 148 PRINTED PAGES, AND CONCLUSIONS
OF LAW WHICH COVER 5 PAGES.  WE CAN BEST UNDERSTAND THE NATURE OF THIS
"TRIAL" BY ANALOGIZING THE SAME PROCEDURE TO A DEFENDANT CHARGED WITH
VIOLATING A STATE OR NATIONAL SAFETY APPLIANCE ACT, WHERE THE DEFENDANT
COMES INTO COURT AND ADMITS VIOLATION OF THE ACT.  IN SUCH CASES, THE
ORDINARY PROCEDURE WOULD BE FOR THE COURT TO PASS UPON THE
CONSTITUTIONALITY OF THE ACT, AND EITHER DISCHARGE OR CONVICT THE
DEFENDANTS.  THE PROCEDURE HERE, HOWEVER, WOULD JUSTIFY QUITE A
DIFFERENT TRIAL METHOD.  UNDER IT, A DEFENDANT IS PERMITTED TO OFFER
VOLUMINOUS EVIDENCE TO SHOW THAT A LEGISLATIVE BODY HAS ERRONEOUSLY
RESOLVED DISPUTED FACTS IN FINDING A DANGER GREAT ENOUGH TO JUSTIFY THE
PASSAGE OF THE LAW.  THIS NEW PATTERN OF TRIAL PROCEDURE MAKES IT
NECESSARY FOR A JUDGE TO HEAR ALL THE EVIDENCE OFFERED AS TO WHY A
LEGISLATURE PASSED A LAW AND TO MAKE FINDINGS OF FACT AS TO THE
VALIDITY OF THOSE REASONS.  IF UNDER TODAY'S RULING A COURT DOES MAKE
FINDINGS, AS TO A DANGER CONTRARY TO THE FINDINGS OF THE LEGISLATURE,
AND THE EVIDENCE HEARD "LENDS SUPPORT" TO THOSE FINDINGS, A COURT CAN
THEN INVALIDATE THE LAW.  IN THIS RESPECT, THE ARIZONA COUNTY COURT
ACTED AND THIS COURT TODAY IS ACTING, AS A "SUPER-LEGISLATURE."  FN4 

EVEN IF THIS METHOD OF INVALIDATING LEGISLATIVE ACTS IS A CORRECT
ONE, I STILL THINK THAT THE "FINDINGS" OF THE STATE COURT DO NOT
AUTHORIZE TODAY'S DECISION.  THAT COURT DID NOT FIND THAT THERE IS NO
UNUSUAL DANGER FROM SLACK MOVEMENTS IN LONG TRAINS.  IT DID DECIDE ON
DISPUTED EVIDENCE THAT THE LONG TRAIN "SLACK MOVEMENT" DANGERS WERE
MORE THAN OFFSET BY PROSPECTIVE DANGERS AS A RESULT OF RUNNING A LARGER
NUMBER OF SHORT TRAINS, SINCE MANY PEOPLE MIGHT BE HURT AT GRADE
CROSSINGS.  THERE WAS UNDOUBTEDLY SOME EVIDENCE BEFORE THE STATE COURT
FROM WHICH IT COULD HAVE REACHED SUCH A CONCLUSION.  THERE WAS
UNDOUBTEDLY AS MUCH EVIDENCE BEFORE IT WHICH WOULD HAVE JUSTIFIED A
DIFFERENT CONCLUSION. 

UNDER THOSE CIRCUMSTANCES, THE DETERMINATION OF WHETHER IT IS IN THE
INTEREST OF SOCIETY FOR THE LENGTH OF TRAINS TO BE GOVERNMENTALLY
REGULATED IS A MATTER OF PUBLIC POLICY.  SOMEONE MUST FIX THAT POLICY -
EITHER THE CONGRESS, OR THE STATE, OR THE COURTS.  A CENTURY AND A HALF
OF CONSTITUTIONAL HISTORY AND GOVERNMENT ADMONISHES THIS COURT TO LEAVE
THAT CHOICE TO THE ELECTED LEGISLATIVE REPRESENTATIVES OF THE PEOPLE
THEMSELVES, WHERE IT PROPERLY BELONGS BOTH ON DEMOCRATIC PRINCIPLES AND
THE REQUIREMENTS OF EFFICIENT GOVERNMENT. 

I THINK THAT LEGISLATURES, TO THE EXCLUSION OF COURTS, HAVE THE
CONSTITUTIONAL POWER TO ENACT LAWS LIMITING TRAIN LENGTHS, FOR THE
PURPOSE OF REDUCING INJURIES BROUGHT ABOUT BY "SLACK MOVEMENTS."  THEIR
POWER IS NOT LESS BECAUSE A REQUIREMENT OF SHORT TRAINS MIGHT INCREASE
GRADE CROSSING ACCIDENTS.  THIS LATTER FACT RAISES AN ENTIRELY
DIFFERENT ELEMENT OF DANGER WHICH IS ITSELF SUBJECT TO LEGISLATIVE
REGULATION.  FOR LEGISLATURES MAY, IF NECESSARY, REQUIRE RAILROADS TO
TAKE APPROPRIATE STEPS TO REDUCE THE LIKELIHOOD OF INJURIES AT GRADE
CROSSINGS.  DENVER & R.G.R. CO. V. DENVER, 250 U.S. 241.  AND THE FACT
THAT GRADE-CROSSING IMPROVEMENTS MAY BE EXPENSIVE IS NO SUFFICIENT
REASON TO SAY THAT AN UNCONSTITUTIONAL "BURDEN" IS PUT UPON A RAILROAD
EVEN THOUGH IT BE AN INTERSTATE ROAD.  ERIE R. CO. V. PUBLIC UTILITY
COMMISSIONERS, 254 U.S. 394, 408-411. 

THE SUPREME COURT OF ARIZONA DID NOT DISCUSS THE COUNTY COURT'S SO
CALLED FINDINGS OF FACT.  IT PROPERLY DESIGNATED THE ARIZONA STATUTE AS
A SAFETY MEASURE, AND FINDING THAT IT BORE A REASONABLE RELATION TO ITS
PURPOSE DECLINED TO REVIEW THE JUDGMENT OF THE LEGISLATURE AS TO THE
NECESSITY FOR THE PASSAGE OF THE ACT.  IN SO DOING IT WAS WELL
FORTIFIED BY A LONG LINE OF DECISIONS OF THIS COURT.  TODAY'S DECISION
MARKS AN ABRUPT DEPARTURE FROM THAT LINE OF CASES. 

THERE HAVE BEEN MANY SHARP DIVISIONS OF THIS COURT CONCERNING ITS
AUTHORITY, IN THE ABSENCE OF CONGRESSIONAL ENACTMENT, TO INVALIDATE
STATE LAWS AS VIOLATING THE COMMERCE CLAUSE.  SEE E.G., ADAMS
MANUFACTURING CO. V. STOREN, 304 U.S. 307; GWIN, WHITE & PRINCE V.
HENNEFORD, 305 U.S. 434; MCCARROLL V. DIXIE GREYHOUND LINES, 309 U.S.
176.  THAT DISCUSSION NEED NOT BE RENEWED HERE, BECAUSE EVEN THE
BROADEST EXPONENTS OF JUDICIAL POWER IN THIS FIELD HAVE NOT HERETOFORE
EXPRESSED DOUBT AS TO A STATE'S POWER, ABSENT A PARAMOUNT CONGRESSIONAL
DECLARATION, TO REGULATE INTERSTATE TRAINS IN THE INTEREST OF SAFETY. 
FOR AS EARLY AS 1913, THIS COURT, SPEAKING THROUGH MR. JUSTICE HUGHES,
LATER CHIEF JUSTICE, REFERRED TO "THE SETTLED PRINCIPLE THAT, IN THE
ABSENCE OF LEGISLATION BY CONGRESS, THE STATES ARE NOT DENIED THE
EXERCISE OF THEIR POWER TO SECURE SAFETY IN THE PHYSICAL OPERATION OF
RAILROAD TRAINS WITHIN THEIR TERRITORY, EVEN THOUGH SUCH TRAINS ARE
USED IN INTERSTATE COMMERCE.  THAT HAS BEEN THE LAW SINCE THE BEGINNING
OF RAILROAD TRANSPORTATION."  ATLANTIC COAST LINE R. CO. V. GEORGIA,
234 U.S. 280, 291.  UNTIL TODAY, THE OFT-REPEATED PRINCIPLES OF THAT
CASE HAVE NEVER BEEN REPUDIATED IN WHOLE OR IN PART. 

BUT, IT IS SAID TODAY, THE PRINCIPLE THERE ANNOUNCED DOES NOT APPLY
BECAUSE IF ONE STATE APPLIES A REGULATION OF ITS OWN TO INTERSTATE
TRAINS, "UNIFORMITY" IN REGULATION OR RATHER NON-REGULATION, IS
DESTROYED.  JUSTICE HUGHES SPEAKING FOR THE COURT IN THE ATLANTIC COAST
LINE CASE MADE SHORT SHRIFT OF THAT SAME ARGUMENT.  HE THERE REFERRED
TO THE CONTENTION THAT "IF STATE REQUIREMENTS CONFLICT, IT WILL BE
NECESSARY TO CARRY ADDITIONAL APPARATUS AND TO MAKE VARIOUS ADJUSTMENTS
AT STATE LINES WHICH WOULD DELAY AND INCONVENIENCE INTERSTATE
TRAFFIC."  IN ANSWER TO THIS ARGUMENT HE REITERATED A FORMER
DECLARATION OF THIS COURT IN NEW YORK, N.H. & H.R. CO. V. NEW YORK, 165
U.S. 628, ON THIS SUBJECT, AND ADDED THAT "IF THERE IS A CONFLICT IN
SUCH LOCAL REGULATIONS, BY WHICH INTERSTATE COMMERCE MAY BE
INCONVENIENCED - IF THERE APPEARS TO BE NEED OF STANDARDIZATION OF
SAFETY APPLIANCES AND OF PROVIDING RULES OF OPERATION WHICH WILL GOVERN
THE ENTIRE INTERSTATE ROAD IRRESPECTIVE OF STATE BOUNDARIES - THERE IS
A SIMPLE REMEDY; AND IT CANNOT BE ASSUMED THAT IT WILL NOT BE READILY
APPLIED IF THERE BE REAL OCCASION FOR IT.  THAT REMEDY DOES NOT REST IN
A DENIAL TO THE STATE, IN THE ABSENCE OF CONFLICTING FEDERAL ACTION, OF
ITS POWER TO PROTECT LIFE AND PROPERTY WITHIN ITS BORDERS, BUT IT DOES
LIE IN THE EXERCISE OF THE PARAMOUNT AUTHORITY OF CONGRESS IN ITS
CONTROL OF INTERSTATE COMMERCE TO ESTABLISH SUCH REGULATIONS AS IN ITS
JUDGMENT MAY BE DEEMED APPROPRIATE AND SUFFICIENT.  CONGRESS, WHEN IT
PLEASES, MAY GIVE THE RULE AND MAKE THE STANDARD TO BE OBSERVED ON THE
INTERSTATE HIGHWAY."  P. 292. 

THAT SAME STATEMENT HAS IN SUBSTANCE BEEN MADE IN MANY OTHER
DECISIONS OF THIS COURT, A NUMBER OF WHICH ARE CITED IN THE ATLANTIC
COAST LINE CASE, AND ALL OF THEM ARE TODAY SWEPT INTO THE DISCARD.  IN
NO ONE OF ALL THESE PREVIOUS CASES WAS IT MORE APPROPRIATE THAN HERE TO
CALL ATTENTION TO THE FACT THAT CONGRESS COULD WHEN IT PLEASED
ESTABLISH A UNIFORM RULE AS TO THE LENGTH OF TRAINS.  CONGRESS KNEW
ABOUT THE ARIZONA LAW.  IT IS COMMON KNOWLEDGE THAT THE INTERSTATE
COMMERCE COMMITTEES OF THE HOUSE AND THE SENATE KEEP IN CLOSE AND
INTIMATE TOUCH WITH THE AFFAIRS OF RAILROADS AND OTHER NATIONAL MEANS
OF TRANSPORTATION.  EVERY YEAR BRINGS FORTH NEW LEGISLATION WHICH GOES
THROUGH THOSE COMMITTEES, MUCH OF IT RELATING TO SAFETY.  THE ATTENTION
OF THE MEMBERS OF CONGRESS AND OF THE SENATE HAVE BEEN FOCUSED ON THE
PARTICULAR PROBLEM OF THE LENGTH OF RAILROAD TRAINS.  WE CANNOT ASSUME
THAT THEY WERE IGNORANT OF THE COMMONLY KNOWN FACT THAT A LONG TRAIN
MIGHT BE MORE DANGEROUS IN SOME TERRITORIES AND ON SOME PARTICULAR
TYPES OF RAILROAD.  THE HISTORY OF CONGRESSIONAL CONSIDERATION OF THIS
PROBLEM LEAVES LITTLE IF ANY ROOM TO DOUBT THAT THE CHOICE OF CONGRESS
TO LEAVE THE STATE FREE IN THIS FIELD WAS A DELIBERATE CHOICE, WHICH
WAS TAKEN WITH A FULL KNOWLEDGE OF THE COMPLEXITIES OF THE PROBLEMS AND
THE PROBABLE NEED FOR DIVERSE REGULATIONS IN DIFFERENT LOCALITIES.  I
AM THEREFORE COMPELLED TO REACH THE CONCLUSION THAT TODAY'S DECISION IS
THE RESULT OF THE BELIEF OF A MAJORITY OF THIS COURT THAT BOTH THE
LEGISLATURE OF ARIZONA AND THE CONGRESS MADE WRONG POLICY DECISIONS IN
PERMITTING A LAW TO STAND WHICH LIMITS THE LENGTH OF RAILROAD TRAINS. 
I SHOULD AT LEAST GIVE THE ARIZONA STATUTE THE BENEFIT OF THE SAME RULE
WHICH THIS COURT SAID SHOULD BE APPLIED IN CONNECTION WITH STATE
LEGISLATION UNDER ATTACK FOR VIOLATING THE FOURTEENTH AMENDMENT, THAT
IS, THAT LEGISLATIVE BODIES HAVE "A WIDE RANGE OF LEGISLATIVE
DISCRETION,  ...  AND THEIR CONCLUSIONS RESPECTING THE WISDOM OF THEIR
LEGISLATIVE ACTS ARE NOT REVIEWABLE BY THE COURTS."  ARIZONA EMPLOYERS'
LIABILITY CASES, 250 U.S. 400, 419. 

WHEN WE FINALLY GET DOWN TO THE GIST OF WHAT THE COURT TODAY ACTUALLY
DECIDES, IT IS THIS:  EVEN THOUGH MORE RAILROAD EMPLOYEES WILL BE
INJURED BY "SLACK ACTION" MOVEMENTS ON LONG TRAINS THAN ON SHORT
TRAINS, THERE MUST BE NO REGULATION OF THIS DANGER IN THE ABSENCE OF
"UNIFORM REGULATIONS."  THAT MEANS THAT NO ONE CAN LEGISLATE AGAINST
THIS DANGER EXCEPT THE CONGRESS; AND EVEN THOUGH THE CONGRESS IS
PERFECTLY CONTENT TO LEAVE THE MATTER TO THE DIFFERENT STATE
LEGISLATURES, THIS COURT, ON THE GROUND OF "LACK OF UNIFORMITY," WILL
REQUIRE IT TO MAKE AN EXPRESS AVOWAL OF THAT FACT BEFORE IT WILL PERMIT
A STATE TO GUARD AGAINST THAT ADMITTED DANGER. 

WE ARE NOT LEFT IN DOUBT AS TO WHY, AS AGAINST THE POTENTIAL PERIL OF
INJURIES TO EMPLOYEES, THE COURT TIPS THE SCALES ON THE SIDE OF
"UNIFORMITY."  FOR THE EVIL IT FINDS IN A LACK OF UNIFORMITY IS THAT IT
(1) DELAYS INTERSTATE COMMERCE, (2) INCREASES ITS COST AND (3) IMPAIRS
ITS EFFICIENCY.  ALL THREE OF THESE BOIL DOWN TO THE SAME THING, AND
THAT IS THAT RUNNING SHORTER TRAINS WOULD INCREASE THE COST OF RAILROAD
OPERATIONS.  THE "BURDEN" ON COMMERCE REDUCES ITSELF TO MERE COST
BECAUSE THERE WAS NO FINDING, AND NO EVIDENCE TO SUPPORT A FINDING,
THAT BY THE EXPENDITURE OF SUFFICIENT SUMS OF MONEY, THE RAILROADS
COULD NOT ENABLE THEMSELVES TO CARRY GOODS AND PASSENGERS JUST AS
QUICKLY AND EFFICIENTLY WITH SHORT TRAINS AS WITH LONG TRAINS.  THUS
THE CONCLUSION THAT A REQUIREMENT FOR LONG TRAINS WILL "BURDEN
INTERSTATE COMMERCE" IS A MERE EUPHEMISM FOR THE STATEMENT THAT A
REQUIREMENT FOR LONG TRAINS WILL INCREASE THE COST OF RAILROAD
OPERATIONS. 

IN THE REPORT OF THE SENATE COMMITTEE, SUPRA, ATTENTION WAS CALLED TO
THE FACT THAT IN 1935, 6,351 RAILROAD EMPLOYEES WERE INJURED WHILE ON
DUTY, WITH A RESULTING LOSS OF MORE THAN 200,000 WORKING DAYS, AND THAT
INJURIES TO TRAINMEN AND ENGINEMEN INCREASED MORE THAN 29% IN 1936. 
FN5 NEVERTHELESS, THE COURT'S ACTION IN REQUIRING THAT MONEY COSTS
OUTWEIGH HUMAN VALUES IS SOUGHT TO BE BUTTRESSED BY A REFERENCE TO THE
EXPRESS POLICY OF CONGRESS TO PROMOTE AN "ECONOMICAL NATIONAL RAILROAD
SYSTEM."  I CANNOT BELIEVE THAT IF CONGRESS HAD DEFINED WHAT IT MEANT
BY "ECONOMICAL," IT WOULD HAVE REQUIRED MONEY TO BE SAVED AT THE
EXPENSE OF THE PERSONAL SAFETY OF RAILWAY EMPLOYEES.  ITS WHOLE HISTORY
FOR THE PAST 25 YEARS BELIES SUCH AN INTERPRETATION OF ITS LANGUAGE. 
JUDICIAL OPINIONS RATHER THAN LEGISLATIVE ENACTMENTS HAVE TENDED TO
EMPHASIZE COSTS.  SEE TILLER V. ATLANTIC COAST LINE R. CO., SUPRA, 58
60.  A DIFFERENT CONGRESSIONAL ATTITUDE HAS BEEN SHOWN BY THE PASSAGE
OF NUMEROUS SAFETY APPLIANCE PROVISIONS, A FEDERAL EMPLOYEES'
COMPENSATION ACT, ABOLITION OF THE JUDICIALLY CREATED DOCTRINE OF
ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE, AND VARIOUS OTHER TYPES
OF LEGISLATION.  UNFORTUNATELY, THE RECORD SHOWS, AS POINTED OUT IN THE
TILLER CASE, THAT THE COURTS HAVE BY NARROW AND RESTRICTED
INTERPRETATION TOO FREQUENTLY REDUCED THE FULL SCOPE OF PROTECTION
WHICH CONGRESS INTENDED TO PROVIDE. 

THIS RECORD IN ITS ENTIRETY LEAVES ME WITH NO DOUBT WHATEVER THAT
MANY EMPLOYEES HAVE BEEN SERIOUSLY INJURED AND KILLED IN THE PAST, AND
THAT MANY MORE ARE LIKELY TO BE SO IN THE FUTURE, BECAUSE OF "SLACK
MOVEMENT" IN TRAINS.  EVERYDAY KNOWLEDGE AS WELL AS DIRECT EVIDENCE
PRESENTED AT THE VARIOUS HEARINGS, SUBSTANTIATES THE REPORT OF THE
SENATE COMMITTEE THAT THE DANGER FROM SLACK MOVEMENT IS GREATER IN LONG
TRAINS THAN IN SHORT TRAINS.  IT MAY BE THAT OFFSETTING DANGERS ARE
POSSIBLE IN THE OPERATION OF SHORT TRAINS.  THE BALANCING OF THESE
PROBABILITIES, HOWEVER, IS NOT IN MY JUDGMENT A MATTER FOR JUDICIAL
DETERMINATION, BUT ONE WHICH CALLS FOR LEGISLATIVE CONSIDERATION. 
REPRESENTATIVES ELECTED BY THE PEOPLE TO MAKE THEIR LAWS, RATHER THAN
JUDGES APPOINTED TO INTERPRET THOSE LAWS, CAN BEST DETERMINE THE
POLICIES WHICH GOVERN THE PEOPLE.  THAT AT LEAST IS THE BASIC PRINCIPLE
ON WHICH OUR DEMOCRATIC SOCIETY RESTS.  I WOULD AFFIRM THE JUDGMENT OF
THE SUPREME COURT OF ARIZONA. 

FN1  A RESUME OF THESE LAWS AND THEIR RECEPTION BY THE COURTS IS SET
OUT IN THE OPINION OF THE SUPREME COURT OF ARIZONA IN THIS CASE, 61
ARIZ. 66, 145 P.2D 530. 

FN2  SENATE REPORT NO. 416, 75TH CONG., 1ST SESS. 

FN3  81 CONG. REC. 7596.  THE RECORD DOES NOT SHOW ANY DISSENTING
VOTES CAST AGAINST THE BILL.  THE DEBATE ON THE MEASURE APPEARS AT PP.
7564-7595. 

FN4  THE COURT TODAY INVALIDATES THE ARIZONA LAW IN ACCORDANCE WITH
THE IDENTICAL "SUPER-LEGISLATURE" METHOD (SO DESIGNATED BY JUSTICES
BRANDEIS AND HOLMES) USED BY THE MAJORITY TO INVALIDATE A NEBRASKA
STATUTE REGULATING THE WEIGHTS OF LOAVES OF BREAD.  BURNS BAKING CO. V.
BRYAN, 264 U.S. 504, 534.  FOR HERE, AS THERE, THIS COURT HAS OVERRULED
A STATE LEGISLATURE'S FINDING THAT AN EVIL EXISTED, AND THAT THE STATE
LAW WOULD NOT IMPOSE AN UNCONSTITUTIONAL "BURDEN" UPON THOSE
REGULATED.  THE DISSENT IN THE BURNS CASE SAID: 

"TO DECIDE, AS A FACT, THAT THE PROHIBITION OF EXCESS WEIGHTS 'IS NOT
NECESSARY FOR THE PROTECTION OF THE PURCHASERS AGAINST IMPOSITION AND
FRAUD BY SHORT WEIGHTS'; THAT IT 'IS NOT CALCULATED TO EFFECTUATE THAT
PURPOSE'; AND THAT IT 'SUBJECTS BAKERS AND SELLERS OF BREAD' TO HEAVY
BURDENS, IS, IN MY OPINION, AN EXERCISE OF THE POWERS OF A SUPER
LEGISLATURE - NOT THE PERFORMANCE OF THE CONSTITUTIONAL FUNCTION OF
JUDICIAL REVIEW." 

THAT DECISION RESTED ON THE DUE PROCESS CLAUSE WHILE TODAY'S DECISION
RESTS ON THE COMMERCE CLAUSE.  BUT THAT DIFFERENCE DOES NOT MAKE
INAPPLICABLE HERE THE PRINCIPLES INVOKED BY THE DISSENTERS IN THE BURNS
CASE. 

THE USE OF THE "SUPER-LEGISLATURE" TECHNIQUE HAS BEEN REPEATED TO
STRIKE DOWN OTHER STATUTES.  SEE E.G., CHICAGO, M. & ST. P.R. CO. V.
WISCONSIN, 238 U.S. 491, 499; WEAVER V. PALMER BROS. CO., 270 U.S. 402,
DISSENT AT 415.  SEE ALSO DISSENTS IN SCHLESINGER V. WISCONSIN, 270
U.S. 230, 241, 242; NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262, 284
285.  FOR A CASE IN WHICH THIS COURT DECLINED TO REVIEW THAT "ECONOMICS
OR THE FACTS" BEHIND A LEGISLATIVE ENACTMENT, SEE CENTRAL LUMBER CO. V.
SOUTH DAKOTA, 226 U.S. 157, 161; CF. STANDARD OIL CO. V. MARYSVILLE,
279 U.S. 582, 586.  SEE ALSO POWELL V. PENNSYLVANIA, 127 U.S. 678, 686;
DISSENTING OPINION, POLK CO. V. GLOVER, 305 U.S. 5, 10-19. 

FN5  THESE FIGURES APPEAR TO BE CONSIDERABLY LESS THAN THOSE LATER
REPORTED.  SEE TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54, 59,
NOTE 4. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I HAVE EXPRESSED MY DOUBTS WHETHER THE COURTS SHOULD INTERVENE IN
SITUATIONS LIKE THE PRESENT AND STRIKE DOWN STATE LEGISLATION ON THE
GROUNDS THAT IT BURDENS INTERSTATE COMMERCE.  MCCARROLL V. DIXIE
GREYHOUND LINES, 309 U.S. 176, 183-189.  MY VIEW HAS BEEN THAT THE
COURTS SHOULD INTERVENE ONLY WHERE THE STATE LEGISLATION DISCRIMINATED
AGAINST INTERSTATE COMMERCE OR WAS OUT OF HARMONY WITH LAWS WHICH
CONGRESS HAD ENACTED.  P. 184.  IT SEEMS TO ME PARTICULARLY APPROPRIATE
THAT THAT COURSE BE FOLLOWED HERE.  FOR CONGRESS HAS GIVEN THE
INTERSTATE COMMERCE COMMISSION BROAD POWERS OF REGULATION OVER
INTERSTATE CARRIERS.  THE COMMISSION IS THE NATIONAL AGENCY WHICH HAS
BEEN ENTRUSTED WITH THE TASK OF PROMOTING A SAFE, ADEQUATE, EFFICIENT,
AND ECONOMICAL TRANSPORTATION SERVICE.  IT IS THE EXPERT ON THIS
SUBJECT.  IT IS IN A POSITION TO POLICE THE FIELD.  AND IF ITS POWERS
PROVE INADEQUATE FOR THE TASK, CONGRESS, WHICH HAS PARAMOUNT AUTHORITY
IN THIS FIELD, CAN IMPLEMENT THEM. 

BUT THE COURT HAS NOT TAKEN THAT VIEW.  AS A RESULT THE QUESTION
PRESENTED IS WHETHER THE TOTAL EFFECT OF ARIZONA'S TRAIN-LIMIT AS A
SAFETY MEASURE IS SO SLIGHT AS NOT TO OUTWEIGH THE NATIONAL INTEREST IN
KEEPING INTERSTATE COMMERCE FREE FROM INTERFERENCES WHICH SERIOUSLY
IMPEDE OR BURDEN IT.  THE VOLUMINOUS EVIDENCE HAS BEEN REVIEWED IN THE
OPINION OF THE COURT AND IN THE DISSENTING OPINION OF MR. JUSTICE
BLACK.  IF I SAT AS A MEMBER OF THE INTERSTATE COMMERCE COMMISSION OR
OF A LEGISLATIVE COMMITTEE TO DECIDE WHETHER ARIZONA'S TRAIN-LIMIT LAW
SHOULD BE SUPERSEDED BY A FEDERAL REGULATION, THE QUESTION WOULD NOT BE
FREE FROM DOUBT FOR ME.  IF WE HAD BEFORE US THE RULING OF THE
INTERSTATE COMMERCE COMMISSION (IN THE MATTER OF SERVICE ORDER NO. 85,
256 I.C.C. 523, 534) THAT ARIZONA'S TRAIN-LIMIT LAW INFRINGES "THE
NATIONAL INTEREST IN MAINTAINING THE FREE FLOW OF COMMERCE UNDER THE
PRESENT EMERGENCY WAR CONDITIONS," I WOULD ACCEPT ITS EXPERT APPRAISAL
OF THE FACTS, ASSUMING IT HAD THE AUTHORITY TO ACT.  BUT THAT ORDER IS
NOT BEFORE US. AND THE PRESENT CASE DEALS WITH A PERIOD OF TIME WHICH
ANTEDATES THE WAR EMERGENCY.  MOREOVER, WE ARE DEALING HERE WITH STATE
LEGISLATION IN THE FIELD OF SAFETY WHERE THE PROPRIETY OF LOCAL
REGULATION HAS LONG BEEN RECOGNIZED.  SEE ATLANTIC COAST LINE R. CO. V.
GEORGIA, 234 U.S. 280, 291, AND CASES COLLECTED IN CALIFORNIA V.
THOMPSON, 313 U.S. 109, 113-114.  WHETHER THE QUESTION ARISES UNDER THE
COMMERCE CLAUSE OR THE FOURTEENTH AMENDMENT, I THINK THE LEGISLATION IS
ENTITLED TO A PRESUMPTION OF VALIDITY.  IF A STATE PASSED A LAW
PROHIBITING THE HAULING OF MORE THAN ONE FREIGHT CAR AT A TIME, WE
WOULD HAVE A SITUATION COMPARABLE IN EFFECT TO A STATE LAW REQUIRING
ALL RAILROADS WITHIN ITS BORDERS TO OPERATE ON NARROW GAUGE TRACKS. 
THE QUESTION IS ONE OF DEGREE AND CALLS FOR A CLOSE APPRAISAL OF THE
FACTS.  FN1  I AM NOT PERSUADED THAT THE EVIDENCE ADDUCED BY THE
RAILROADS OVERCOMES THE PRESUMPTION OF VALIDITY TO WHICH THIS TRAIN
LIMIT LAW IS ENTITLED.  FOR THE REASONS STATED BY MR. JUSTICE BLACK,
ARIZONA'S TRAIN-LIMIT LAW SHOULD STAND AS AN ALLOWABLE REGULATION
ENACTED TO PROTECT THE LIVES AND LIMBS OF THE MEN WHO OPERATE THE
TRAINS. 

FN1  SEE BIKLE, JUDICIAL DETERMINATION OF QUESTIONS OF FACT AFFECTING
THE CONSTITUTIONAL VALIDITY OF LEGISLATIVE ACTION, 38 HARV. L. REV. 6. 

..END :















ALLEN BRADLEY CO. V. UNION, 325 U.S. 797 


NO. 702.  ARGUED MARCH 8, 9, 1945.  - DECIDED JUNE 18, 1945.  - 145 F.2D
215, REVERSED. 


1.  IT IS A VIOLATION OF THE SHERMAN ANTITRUST ACT FOR LABOR UNIONS
AND THEIR MEMBERS, THOUGH FURTHERING THEIR OWN INTERESTS AS WAGE
EARNERS, TO COMBINE WITH EMPLOYERS AND WITH MANUFACTURERS OF GOODS TO
RESTRAIN COMPETITION IN, AND TO MONOPOLIZE THE MARKETING OF, SUCH GOODS
IN INTERSTATE COMMERCE.  PP. 798, 810. 

2.  CONGRESS DID NOT INTEND BY THE CLAYTON ACT OR THE NORRIS
LAGUARDIA ACT THAT LABOR UNIONS COULD, CONSISTENTLY WITH THE SHERMAN
ACT, AID NON-LABOR GROUPS TO CREATE BUSINESS MONOPOLIES AND TO CONTROL
THE MARKETING OF GOODS AND SERVICES.  P. 808. 

3.  IN SEC. 6 OF THE CLAYTON ACT, WHICH PROVIDES THAT THE SHERMAN ACT
IS NOT TO BE SO CONSTRUED AS TO FORBID THE "EXISTENCE AND OPERATION OF
LABOR, AGRICULTURAL, OR HORTICULTURAL ORGANIZATIONS INSTITUTED FOR THE
PURPOSE OF MUTUAL HELP," "THE PURPOSE OF MUTUAL HELP" CAN NOT BE DEEMED
TO EXTEND TO ACTIVITIES FOR THE PURPOSE OF "EMPLOYER HELP" IN
CONTROLLING MARKETS AND PRICES.  P. 808. 

4.  WHETHER PARTICULAR LABOR UNION ACTIVITIES VIOLATE THE SHERMAN ACT
MAY DEPEND UPON WHETHER THE UNION ACTS ALONE OR IN COMBINATION WITH
BUSINESS GROUPS.  P. 810. 

5. IT WAS THE PURPOSE OF CONGRESS IN THE ANTITRUST LEGISLATION TO
OUTLAW BUSINESS MONOPOLIES; AND A BUSINESS MONOPOLY IS NO LESS SUCH
BECAUSE A UNION PARTICIPATES.  P. 811. 

6.  THE INJUNCTION AGAINST THE UNION AND ITS AGENTS IN THIS CASE MUST
BE LIMITED SO AS TO ENJOIN ONLY THOSE PROHIBITED ACTIVITIES WHICH WERE
ENGAGED IN IN COMBINATION WITH A NON-LABOR GROUP.  P. 812. 

ALLEN BRADLEY CO. ET AL. V. LOCAL UNION NO. 3, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 707, TO REVIEW A JUDGMENT WHICH REVERSED A
JUDGMENT FOR THE PLAINTIFFS, 51 F.SUPP.  36, IN A CIVIL SUIT TO ENJOIN
ALLEGED VIOLATIONS OF THE SHERMAN ACT AND ORDERED DISMISSAL OF THE
SUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER IT IS A VIOLATION OF THE SHERMAN
ANTI-TRUST ACT  FN1  FOR LABOR UNIONS AND THEIR MEMBERS, PROMPTED BY A
DESIRE TO GET AND HOLD JOBS FOR THEMSELVES AT GOOD WAGES AND UNDER HIGH
WORKING STANDARDS, TO COMBINE WITH EMPLOYERS AND WITH MANUFACTURERS OF
GOODS TO RESTRAIN COMPETITION IN, AND TO MONOPOLIZE THE MARKETING OF,
SUCH GOODS. 

UPON THE COMPLAINT OF PETITIONERS AND AFTER A LENGTHY HEARING THE
DISTRICT COURT HELD THAT SUCH A COMBINATION DID VIOLATE THE SHERMAN
ACT, ENTERED A DECLARATORY JUDGMENT TO THAT EFFECT, AND ENTERED AN
INJUNCTION RESTRAINING RESPONDENTS FROM ENGAGING IN A WIDE RANGE OF
SPECIFIED ACTIVITIES.  41 F.SUPP.  727, 51 F.SUPP.  36.  THE CIRCUIT
COURT OF APPEALS REVERSED THE DECISION AND DISMISSED THE CAUSE, HOLDING
THAT COMBINATIONS OF UNIONS AND BUSINESS MEN WHICH RESTRAINED TRADE AND
TENDED TO MONOPOLY WERE NOT IN VIOLATION OF THE ACT WHERE THE BONA FIDE
PURPOSE OF THE UNIONS WAS TO RAISE WAGES, PROVIDE BETTER WORKING
CONDITIONS, AND BRING ABOUT BETTER CONDITIONS OF EMPLOYMENT FOR THEIR
MEMBERS.  145 F.2D 215.  THE NINTH CIRCUIT COURT OF APPEALS HAVING
REACHED A CONTRARY CONCLUSION IN A SIMILAR CASE, 144 F.2D 546, WE
GRANTED CERTIORARI IN BOTH CASES. 

THE FACTS WERE SUFFICIENTLY SET OUT IN THE OPINIONS BELOW AND NEED
NOT BE DETAILED AGAIN.  THE FOLLOWING SUMMARY WILL SUFFICE FOR OUR
PURPOSES. 

PETITIONERS ARE MANUFACTURERS OF ELECTRICAL EQUIPMENT.  THEIR PLACES
OF MANUFACTURE ARE OUTSIDE OF NEW YORK CITY, AND MOST OF THEM ARE
OUTSIDE OF NEW YORK STATE AS WELL.  THEY HAVE BROUGHT THIS ACTION
BECAUSE OF THEIR DESIRE TO SELL THEIR PRODUCTS IN NEW YORK CITY, A
MARKET AREA THAT HAS BEEN CLOSED TO THEM THROUGH THE ACTIVITIES OF
RESPONDENTS AND OTHERS. 

RESPONDENTS ARE A LABOR UNION, ITS OFFICIALS AND ITS MEMBERS.  THE
UNION, LOCAL NO. 3 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, HAS JURISDICTION ONLY OVER THE METROPOLITAN AREA OF NEW YORK
CITY.  IT IS THEREFORE IMPOSSIBLE FOR THE UNION TO ENTER INTO A
COLLECTIVE BARGAINING AGREEMENT WITH PETITIONERS.  SOME OF PETITIONERS
DO HAVE COLLECTIVE BARGAINING AGREEMENTS WITH OTHER UNIONS, AND IN SOME
CASES EVEN WITH OTHER LOCALS OF THE I.B.E.W. 

SOME OF THE MEMBERS OF RESPONDENT UNION WORK FOR MANUFACTURERS WHO
PRODUCE ELECTRICAL EQUIPMENT SIMILAR TO THAT MADE BY PETITIONERS; OTHER
MEMBERS OF RESPONDENT UNION ARE EMPLOYED BY CONTRACTORS AND WORK ON THE
INSTALLATION OF ELECTRICAL EQUIPMENT, RATHER THAN IN ITS PRODUCTION. 

THE UNION'S CONSISTENT AIM FOR MANY YEARS HAS BEEN TO EXPAND ITS
MEMBERSHIP, TO OBTAIN SHORTER HOURS AND INCREASED WAGES, AND TO ENLARGE
EMPLOYMENT OPPORTUNITIES FOR ITS MEMBERS.  TO ACHIEVE THIS LATTER GOAL
THAT IS, TO MAKE MORE WORK FOR ITS OWN MEMBERS - THE UNION REALIZED
THAT LOCAL MANUFACTURERS, EMPLOYERS OF THE LOCAL MEMBERS, MUST HAVE THE
WIDEST POSSIBLE OUTLETS FOR THEIR PRODUCT.  THE UNION THEREFORE WAGED
AGGRESSIVE CAMPAIGNS TO OBTAIN CLOSED-SHOP AGREEMENTS WITH ALL LOCAL
ELECTRICAL EQUIPMENT MANUFACTURERS AND CONTRACTORS.  USING CONVENTIONAL
LABOR UNION METHODS, SUCH AS STRIKES AND BOYCOTTS, IT GRADUALLY
OBTAINED MORE AND MORE CLOSED-SHOP AGREEMENTS IN THE NEW YORK CITY
AREA.  UNDER THESE AGREEMENTS, CONTRACTORS WERE OBLIGATED TO PURCHASE
EQUIPMENT FROM NONE BUT LOCAL MANUFACTURERS WHO ALSO HAD CLOSED-SHOP
AGREEMENTS WITH LOCAL NO. 3; MANUFACTURERS OBLIGATED THEMSELVES TO
CONFINE THEIR NEW YORK CITY SALES TO CONTRACTORS EMPLOYING THE LOCAL'S
MEMBERS.  IN THE COURSE OF TIME, THIS TYPE OF INDIVIDUAL EMPLOYER
EMPLOYEE AGREEMENT EXPANDED INTO INDUSTRY-WIDE UNDERSTANDINGS, LOOKING
NOT MERELY TO TERMS AND CONDITIONS OF EMPLOYMENT BUT ALSO TO PRICE AND
MARKET CONTROL.  AGENCIES WERE SET UP COMPOSED OF REPRESENTATIVES OF
ALL THREE GROUPS TO BOYCOTT RECALCITRANT LOCAL CONTRACTORS AND
MANUFACTURERS AND TO BAR FROM THE AREA EQUIPMENT MANUFACTURED OUTSIDE
ITS BOUNDARIES.  THE COMBINATION AMONG THE THREE GROUPS, UNION,
CONTRACTORS, AND MANUFACTURERS, BECAME HIGHLY SUCCESSFUL FROM THE
STANDPOINT OF ALL OF THEM.  THE BUSINESS OF NEW YORK CITY MANUFACTURERS
HAD A PHENOMENAL GROWTH, THEREBY MULTIPLYING THE JOBS AVAILABLE FOR THE
LOCAL'S MEMBERS.  WAGES WENT UP, HOURS WERE SHORTENED, AND THE NEW YORK
ELECTRICAL EQUIPMENT PRICES SOARED, TO THE DECIDED FINANCIAL PROFIT OF
LOCAL CONTRACTORS AND MANUFACTURERS.  THE SUCCESS IS ILLUSTRATED BY THE
FACT THAT SOME NEW YORK MANUFACTURERS SOLD THEIR GOODS IN THE PROTECTED
CITY MARKET AT ONE PRICE AND SOLD IDENTICAL GOODS OUTSIDE OF NEW YORK
AT A FAR LOWER PRICE.  ALL OF THIS TOOK PLACE, AS THE CIRCUIT COURT OF
APPEALS DECLARED, "THROUGH THE STIFLING OF COMPETITION," AND BECAUSE
THE THREE GROUPS, IN COMBINATION AS "CO-PARTNERS," ACHIEVED "A COMPLETE
MONOPOLY WHICH THEY USED TO BOYCOTT THE EQUIPMENT MANUFACTURED BY THE
PLAINTIFFS."  INTERSTATE SALE OF VARIOUS TYPES OF ELECTRICAL EQUIPMENT
HAS, BY THIS POWERFUL COMBINATION, BEEN WHOLLY SUPPRESSED. 

QUITE OBVIOUSLY, THIS COMBINATION OF BUSINESS MEN HAS VIOLATED BOTH
SECS. 1 AND 2 OF THE SHERMAN ACT,  FN2  UNLESS ITS CONDUCT IS IMMUNIZED
BY THE PARTICIPATION OF THE UNION.  FOR IT INTENDED TO AND DID RESTRAIN
TRADE IN AND MONOPOLIZE THE SUPPLY OF ELECTRICAL EQUIPMENT IN THE NEW
YORK CITY AREA TO THE EXCLUSION OF EQUIPMENT MANUFACTURED IN AND
SHIPPED FROM OTHER STATES, AND DID ALSO CONTROL ITS PRICE AND
DISCRIMINATE BETWEEN ITS WOULD-BE CUSTOMERS.  APEX HOSIERY CO. V.
LEADER, 310 U.S. 469, 512-513.  OUR PROBLEM IN THIS CASE IS THEREFORE A
VERY NARROW ONE - DO LABOR UNIONS VIOLATE THE SHERMAN ACT WHEN, IN
ORDER TO FURTHER THEIR OWN INTERESTS AS WAGE EARNERS, THEY AID AND ABET
BUSINESS MEN TO DO THE PRECISE THINGS WHICH THAT ACT PROHIBITS? 

THE SHERMAN ACT AS ORIGINALLY PASSED CONTAINED NO LANGUAGE EXPRESSLY
EXEMPTING ANY LABOR UNION ACTIVITIES.  SHARP CONTROVERSY SOON AROSE AS
TO WHETHER THE ACT APPLIED TO UNIONS.  ONE VIEWPOINT WAS THAT THE ONLY
EVIL AT WHICH CONGRESS HAD AIMED WAS HIGH CONSUMER PRICES ACHIEVED
THROUGH COMBINATIONS LOOKING TO CONTROL OF MARKETS BY POWERFUL GROUPS;
THAT THOSE WHO WOULD HAVE A GREAT INCENTIVE FOR SUCH COMBINATIONS WOULD
BE THE BUSINESS MEN WHO WOULD BE THE DIRECT BENEFICIARIES OF THEM;
THEREFORE, THE ARGUMENT PROCEEDED, CONGRESS DRAFTED ITS LAW TO APPLY
ONLY TO BUSINESS COMBINATIONS, PARTICULARLY THE LARGE TRUSTS, AND NOT
TO LABOR UNIONS OR ANY OF THEIR ACTIVITIES AS SUCH.  INVOLVED IN THIS
VIEWPOINT WERE THE FOLLOWING CONTENTIONS:  THAT THE SHERMAN ACT IS A
LAW TO REGULATE TRADE, NOT LABOR, A LAW TO PRESCRIBE THE RULES
GOVERNING BARTER AND SALE, AND NOT THE PERSONAL RELATIONS OF EMPLOYERS
AND EMPLOYEES; THAT GOOD WAGES AND WORKING CONDITIONS HELPED AND DID
NOT HINDER TRADE, EVEN THOUGH INCREASED LABOR COSTS MIGHT BE REFLECTED
IN THE COST OF PRODUCTS; THAT LABOR WAS NOT A COMMODITY; THAT LABORERS
HAD AN INHERENT RIGHT TO ACCEPT OR TERMINATE EMPLOYMENT AT THEIR OWN
WILL, EITHER SEPARATELY OR IN CONCERT; THAT TO ENFORCE THEIR CLAIMS FOR
BETTER WAGES AND WORKING CONDITIONS, THEY HAD A RIGHT TO REFUSE TO BUY
GOODS FROM THEIR EMPLOYER OR ANYBODY ELSE; THAT WHAT THEY COULD DO TO
AID THEIR CAUSE, THEY HAD A RIGHT TO PERSUADE OTHERS TO DO; AND THAT
THE ANTI-TRUST LAWS DESIGNED TO REGULATE TRADING WERE UNSUITABLE TO
REGULATE EMPLOYER-EMPLOYEE RELATIONS AND CONTROVERSIES.  THE CLAIM WAS
THAT THE HISTORY OF THE LEGISLATION SUPPORTED THIS LINE OF ARGUMENT. 
FN3 

THE CONTRARY VIEWPOINT WAS THAT THE ACT COVERED ALL CLASSES OF PEOPLE
AND ALL TYPES OF COMBINATIONS, INCLUDING UNIONS, IF THEIR ACTIVITIES
EVEN PHYSICALLY INTERRUPTED THE FREE FLOW OF TRADE OR TENDED TO CREATE
BUSINESS MONOPOLIES, AND THAT A COMBINATION OF LABORERS TO OBTAIN A
RAISE IN WAGES WAS ITSELF A PROHIBITED MONOPOLY.  FEDERAL COURTS
ADOPTED THE LATTER VIEW AND SOON APPLIED THE LAW TO UNIONS IN A NUMBER
OF CASES.  FN4  INJUNCTIONS WERE USED TO ENFORCE THE ACT AGAINST
UNIONS.  AT THE SAME TIME, EMPLOYERS INVOKED INJUNCTIONS TO RESTRAIN
LABOR UNION ACTIVITIES EVEN WHERE NO VIOLATION OF THE SHERMAN ACT WAS
CHARGED. 

VIGOROUS PROTESTS AROSE FROM EMPLOYEE GROUPS.  THE UNIONS URGED
CONGRESSIONAL RELIEF FROM WHAT THEY CONSIDERED TO BE TWO SEPARATE, BUT
PARTIALLY OVERLAPPING EVILS - APPLICATION OF THE SHERMAN ACT TO UNIONS,
AND ISSUANCE OF INJUNCTIONS AGAINST STRIKES, BOYCOTTS AND OTHER LABOR
UNION WEAPONS.  NUMEROUS BILLS TO CURB INJUNCTIONS WERE OFFERED.  OTHER
PROPOSED LEGISLATION WAS INTENDED TO TAKE LABOR UNIONS WHOLLY OUTSIDE
ANY POSSIBLE APPLICATION OF THE SHERMAN ACT.  ALL OF THIS IS A PART OF
THE WELL KNOWN HISTORY OF THE ERA BETWEEN 1890 AND 1914.  FN5 

TO AMEND, SUPPLEMENT AND STRENGTHEN THE SHERMAN ACT AGAINST
MONOPOLISTIC BUSINESS PRACTICES, AND IN RESPONSE TO THE COMPLAINTS OF
THE UNIONS AGAINST INJUNCTIONS AND APPLICATION OF THE ACT TO THEM,
CONGRESS IN 1914 PASSED THE CLAYTON ACT.  FN6  ELIMINATION OF THOSE
"TRADE PRACTICES" WHICH INJURIOUSLY AFFECTED COMPETITION WAS ITS FIRST
OBJECTIVE N7.  EACH SECTION OF THE MEASURE PROHIBITING SUCH TRADE
PRACTICES CONTAINED LANGUAGE PECULIARLY APPROPRIATE TO COMMERCIAL
TRANSACTIONS AS DISTINGUISHED FROM LABOR UNION ACTIVITIES, BUT THERE IS
NO RECORD INDICATION IN ANYTHING THAT WAS SAID OR DONE IN ITS PASSAGE
WHICH INDICATES THAT THOSE ENGAGED IN BUSINESS COULD ESCAPE ITS OR THE
SHERMAN ACT'S PROHIBITIONS BY OBTAINING THE HELP OF LABOR UNIONS OR
OTHERS.  THAT THIS BILL WAS INTENDED TO MAKE IT ALL THE MORE CERTAIN
THAT COMPETITION SHOULD BE THE RULE IN ALL COMMERCIAL TRANSACTIONS IS
CLEAR FROM ITS LANGUAGE AND HISTORY. 

IN ITS TREATMENT OF LABOR UNIONS AND THEIR ACTIVITIES THE CLAYTON ACT
POINTED IN AN OPPOSITE DIRECTION.  CONGRESS IN THAT ACT RESPONDED TO
THE PROLONGED COMPLAINTS  FN8  CONCERNING APPLICATION OF THE SHERMAN
LAW TO LABOR GROUPS BY ADOPTING SEC. 6; FN9  FOR THIS PURPOSE, AND ALSO
DRASTICALLY TO RESTRICT THE GENERAL POWER OF FEDERAL COURTS TO ISSUE
LABOR INJUNCTIONS, SEC. 20  FN10  WAS ADOPTED.  SECTION 6 DECLARED THAT
LABOR WAS NEITHER A COMMODITY NOR AN ARTICLE OF COMMERCE, AND THAT THE
SHERMAN ACT SHOULD NOT BE "CONSTRUED TO FORBID THE EXISTENCE AND
OPERATION OF LABOR, AGRICULTURAL, OR HORTICULTURAL ORGANIZATIONS,
INSTITUTED FOR THE PURPOSES OF MUTUAL HELP  ..."  SECTION 20 LIMITED
THE POWER OF COURTS TO ISSUE INJUNCTIONS IN A CASE "INVOLVING OR
GROWING OUT OF A LABOR DISPUTE OVER TERMS OR CONDITIONS OF EMPLOYMENT
..."  IT DECLARED THAT NO RESTRAINING ORDER OR INJUNCTION SHOULD
PROHIBIT CERTAIN SPECIFIED ACTS, AND FURTHER DECLARED THAT NO ONE OF
THESE SPECIFIED ACTS SHOULD BE "HELD TO BE VIOLATIONS OF ANY LAW OF THE
UNITED STATES."  THIS ACT WAS BROADLY PROCLAIMED BY MANY AS LABOR'S
"MAGNA CARTA," WHOLLY EXEMPTING LABOR FROM ANY POSSIBLE INCLUSION IN
THE ANTI-TRUST LEGISLATION; OTHERS, HOWEVER, STRONGLY DENIED THIS. 

THIS COURT LATER DECLINED TO INTERPRET THE CLAYTON ACT AS MANIFESTING
A CONGRESSIONAL PURPOSE WHOLLY TO EXEMPT LABOR UNIONS FROM THE SHERMAN
ACT.  DUPLEX CO. V. DEERING, 254 U.S. 443; BEDFORD CUT STONE CO. V.
JOURNEYMEN STONE CUTTERS' ASSN., 274 U.S. 37.  IN THOSE CASES LABOR
UNIONS HAD ENGAGED IN A SECONDARY BOYCOTT; THEY HAD BOYCOTTED DEALERS,
BY WHOM THE UNION MEMBERS WERE NOT EMPLOYED, BECAUSE THOSE DEALERS
INSISTED ON SELLING GOODS PRODUCED BY THE EMPLOYERS WITH WHOM THE
UNIONS HAD AN EXISTING CONTROVERSY OVER TERMS AND CONDITIONS OF
EMPLOYMENT.  THIS COURT HELD THAT THE CLAYTON ACT EXEMPTED LABOR UNION
ACTIVITIES ONLY INSOFAR AS THOSE ACTIVITIES WERE DIRECTED AGAINST THE
EMPLOYEES' IMMEDIATE EMPLOYERS AND THAT CONTROVERSIES OVER THE SALE OF
GOODS BY OTHER DEALERS DID NOT CONSTITUTE "LABOR DISPUTES" WITHIN THE
MEANING OF THE CLAYTON ACT. 

AGAIN THE UNIONS WENT TO CONGRESS.  THEY PROTESTED AGAINST THIS
COURT'S INTERPRETATION, REPEATING THE ARGUMENTS THEY HAD MADE AGAINST
APPLICATION OF THE SHERMAN ACT TO THEM.  CONGRESS ADOPTED THEIR
VIEWPOINT, AT LEAST IN LARGE PART, AND IN ORDER TO ESCAPE THE EFFECT OF
THE DUPLEX AND BEDFORD DECISIONS,  FN11  PASSED THE NORRIS-LAGUARDIA
ACT, 47 STAT. 70.  THAT ACT GREATLY BROADENED THE MEANING THIS COURT
HAD ATTRIBUTED TO THE WORDS "LABOR DISPUTE," FURTHER RESTRICTED THE USE
OF INJUNCTIONS IN SUCH A DISPUTE, AND EMPHASIZED THE PUBLIC IMPORTANCE
UNDER MODERN ECONOMIC CONDITIONS OF PROTECTING THE RIGHTS OF EMPLOYEES
TO ORGANIZE INTO UNIONS AND TO ENGAGE IN "CONCERTED ACTIVITIES FOR THE
PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID AND PROTECTION." 
THIS CONGRESSIONAL PURPOSE FOUND FURTHER EXPRESSION IN THE WAGNER ACT,
49 STAT. 449. 

WE SAID IN APEX HOSIERY CO. V. LEADER, SUPRA, 488, THAT LABOR UNIONS
ARE STILL SUBJECT TO THE SHERMAN ACT TO "SOME EXTENT NOT DEFINED."  THE
OPINION IN THAT CASE, HOWEVER, WENT ON TO EXPLAIN THAT THE SHERMAN ACT
"WAS ENACTED IN THE ERA OF 'TRUSTS' AND OF 'COMBINATIONS' OF BUSINESSES
AND OF CAPITAL ORGANIZED AND DIRECTED TO CONTROL OF THE MARKET BY
SUPPRESSION OF COMPETITION IN THE MARKETING OF GOODS AND SERVICES, THE
MONOPOLISTIC TENDENCY OF WHICH HAD BECOME A MATTER OF PUBLIC CONCERN";
THAT ITS PURPOSE WAS TO PROTECT CONSUMERS FROM MONOPOLY PRICES, AND NOT
TO SERVE AS A COMPREHENSIVE CODE TO REGULATE AND POLICE ALL KINDS AND
TYPES OF INTERRUPTIONS AND OBSTRUCTIONS TO THE FLOW OF TRADE.  THIS WAS
A RECOGNITION OF THE FACT THAT CONGRESS HAD ACCEPTED THE ARGUMENTS MADE
CONTINUOUSLY SINCE 1890 BY GROUPS OPPOSING APPLICATION OF THE SHERMAN
ACT TO UNIONS.  IT WAS AN INTERPRETATION COMMANDED BY A FAIR
CONSIDERATION OF THE FULL HISTORY OF ANTI-TRUST AND LABOR LEGISLATION. 
UNITED STATES V. HUTCHESON, 312 U.S. 219, DECLARED THAT THE SHERMAN,
CLAYTON AND NORRIS-LAGUARDIA ACTS MUST BE JOINTLY CONSIDERED IN
ARRIVING AT A CONCLUSION AS TO WHETHER LABOR UNION ACTIVITIES RUN
COUNTER TO THE ANTI-TRUST LEGISLATION.  CONDUCT WHICH THEY PERMIT IS
NOT TO BE DECLARED A VIOLATION OF FEDERAL LAW.  THAT DECISION HELD THAT
THE DOCTRINE OF THE DUPLEX AND BEDFORD CASES WAS INCONSISTENT WITH THE
CONGRESSIONAL POLICY SET OUT IN THE THREE "INTERLACING STATUTES." 

THE RESULT OF ALL THIS IS THAT WE HAVE TWO DECLARED CONGRESSIONAL
POLICIES WHICH IT IS OUR RESPONSIBILITY TO TRY TO RECONCILE.  THE ONE
SEEKS TO PRESERVE A COMPETITIVE BUSINESS ECONOMY; THE OTHER TO PRESERVE
THE RIGHTS OF LABOR TO ORGANIZE TO BETTER ITS CONDITIONS THROUGH THE
AGENCY OF COLLECTIVE BARGAINING.  WE MUST DETERMINE HERE HOW FAR
CONGRESS INTENDED ACTIVITIES UNDER ONE OF THESE POLICIES TO NEUTRALIZE
THE RESULTS ENVISIONED BY THE OTHER. 

ASIDE FROM THE FACT THAT THE LABOR UNION HERE ACTED IN COMBINATION
WITH THE CONTRACTORS AND MANUFACTURERS, THE MEANS IT ADOPTED TO
CONTRIBUTE TO THE COMBINATION'S PURPOSE FALL SQUARELY WITHIN THE
"SPECIFIED ACTS" DECLARED BY SEC. 20 NOT TO BE VIOLATIONS OF FEDERAL
LAW.  FN12  FOR THE UNION'S CONTRIBUTION TO THE TRADE BOYCOTT WAS
ACCOMPLISHED THROUGH THREATS THAT UNLESS THEIR EMPLOYERS BOUGHT THEIR
GOODS FROM LOCAL MANUFACTURERS THE UNION LABORERS WOULD TERMINATE THE
"RELATION OF EMPLOYMENT" WITH THEM AND CEASE TO PERFORM "WORK OR LABOR"
FOR THEM; AND THROUGH THEIR "RECOMMENDING, ADVISING, OR PERSUADING
OTHERS BY PEACEFUL AND LAWFUL MEANS" NOT TO "PATRONIZE" SELLERS OF THE
BOYCOTTED ELECTRICAL EQUIPMENT.  CONSEQUENTLY, UNDER OUR HOLDINGS IN
THE HUTCHESON CASE AND OTHER CASES WHICH FOLLOWED IT,  FN13  HAD THERE
BEEN NO UNION-CONTRACTOR-MANUFACTURER COMBINATION THE UNION'S ACTIONS
HERE, COMING AS THEY DID WITHIN THE EXEMPTIONS OF THE CLAYTON AND
NORRIS-LAGUARDIA ACTS, WOULD NOT HAVE BEEN VIOLATIONS OF THE SHERMAN
ACT.  WE PASS TO THE QUESTION OF WHETHER UNIONS CAN WITH IMPUNITY AID
AND ABET BUSINESS MEN WHO ARE VIOLATING THE ACT. 

ON TWO OCCASIONS THIS COURT HAS HELD THAT THE SHERMAN ACT WAS
VIOLATED BY A COMBINATION OF LABOR UNIONS AND BUSINESS MEN TO RESTRAIN
TRADE.  FN14  IN NEITHER OF THEM WAS THE COURT'S ATTENTION SHARPLY
CALLED TO THE CRUCIAL QUESTIONS HERE PRESENTED.  FURTHERMORE, BOTH WERE
DECIDED BEFORE THE PASSAGE OF THE NORRIS-LAGUARDIA ACT AND PRIOR TO OUR
HOLDING IN THE HUTCHESON CASE.  IT IS CORRECTLY ARGUED BY RESPONDENTS
THAT THESE FACTORS GREATLY DETRACT FROM THE WEIGHT WHICH THE TWO CASES
MIGHT OTHERWISE HAVE IN THE INSTANT CASE.  SEE UNITED STATES V.
HUTCHESON, SUPRA, 236.  WITHOUT REGARD TO THESE CASES, HOWEVER, WE
THINK CONGRESS NEVER INTENDED THAT UNIONS COULD, CONSISTENTLY WITH THE
SHERMAN ACT, AID NON-LABOR GROUPS TO CREATE BUSINESS MONOPOLIES AND TO
CONTROL THE MARKETING OF GOODS AND SERVICES. 

BE SO CONSTRUED AS TO FORBID THE "EXISTENCE AND OPERATION OF LABOR,
AGRICULTURAL, OR HORTICULTURAL ORGANIZATIONS, INSTITUTED FOR THE
PURPOSES OF MUTUAL HELP  ..."  BUT "THE PURPOSE OF MUTUAL HELP" CAN
HARDLY BE THOUGHT TO COVER ACTIVITIES FOR THE PURPOSE OF "EMPLOYERHELP"
IN CONTROLLING MARKETS AND PRICES.  AND IN AN ANALOGOUS SITUATION WHERE
AN AGRICULTURAL ASSOCIATION JOINED WITH OTHER GROUPS TO CONTROL THE
AGRICULTURAL MARKET, WE SAID: 

"THE RIGHT OF THESE AGRICULTURAL PRODUCERS THUS TO UNITE IN PREPARING
FOR MARKET AND IN MARKETING THEIR PRODUCTS, AND TO MAKE THE CONTRACTS
WHICH ARE NECESSARY FOR THAT COLLABORATION, CANNOT BE DEEMED TO
AUTHORIZE ANY COMBINATION OR CONSPIRACY WITH OTHER PERSONS IN RESTRAINT
OF TRADE THAT THESE PRODUCERS MAY SEE FIT TO DEVISE."  UNITED STATES V.
BORDEN CO., 308 U.S. 188, 204-205. 

WE HAVE BEEN POINTED TO NO LANGUAGE IN ANY ACT OF CONGRESS OR IN ITS
REPORTS OR DEBATES, NOR HAVE WE FOUND ANY, WHICH INDICATES THAT IT WAS
EVER SUGGESTED, CONSIDERED, OR LEGISLATIVELY DETERMINED THAT LABOR
UNIONS SHOULD BE GRANTED AN IMMUNITY SUCH AS IS SOUGHT IN THE PRESENT
CASE.  IT HAS BEEN ARGUED THAT THIS IMMUNITY CAN BE INFERRED FROM A
UNION'S RIGHT TO MAKE BARGAINING AGREEMENTS WITH ITS EMPLOYER.  SINCE
UNION MEMBERS CAN WITHOUT VIOLATING THE SHERMAN ACT STRIKE TO ENFORCE A
UNION BOYCOTT OF GOODS, IT IS SAID THEY MAY SETTLE THE STRIKE BY
GETTING THEIR EMPLOYERS TO AGREE TO REFUSE TO BUY THE GOODS.  EMPLOYERS
AND THE UNION DID HERE MAKE BARGAINING AGREEMENTS IN WHICH THE
EMPLOYERS AGREED NOT TO BUY GOODS MANUFACTURED BY COMPANIES WHICH DID
NOT EMPLOY THE MEMBERS OF LOCAL NO. 3.  WE MAY ASSUME THAT SUCH AN
AGREEMENT STANDING ALONE WOULD NOT HAVE VIOLATED THE SHERMAN ACT.  BUT
IT DID NOT STAND ALONE.  IT WAS BUT ONE ELEMENT IN A FAR LARGER PROGRAM
IN WHICH CONTRACTORS AND MANUFACTURERS UNITED WITH ONE ANOTHER TO
MONOPOLIZE ALL THE BUSINESS IN NEW YORK CITY, TO BAR ALL OTHER BUSINESS
MEN FROM THAT AREA, AND TO CHARGE THE PUBLIC PRICES ABOVE A COMPETITIVE
LEVEL.  IT IS TRUE THAT VICTORY OF THE UNION IN ITS DISPUTES, EVEN HAD
THE UNION ACTED ALONE, MIGHT HAVE ADDED TO THE COST OF GOODS, OR MIGHT
HAVE RESULTED IN INDIVIDUAL REFUSALS OF ALL OF THEIR EMPLOYERS TO BUY
ELECTRICAL EQUIPMENT NOT MADE BY LOCAL NO. 3.  SO FAR AS THE UNION
MIGHT HAVE ACHIEVED THIS RESULT ACTING ALONE, IT WOULD HAVE BEEN THE
NATURAL CONSEQUENCE OF LABOR UNION ACTIVITIES EXEMPTED BY THE CLAYTON
ACT FROM THE COVERAGE OF THE SHERMAN ACT.  APEX HOSIERY CO. V. LEADER,
SUPRA, 503.  BUT WHEN THE UNIONS PARTICIPATED WITH A COMBINATION OF
BUSINESS MEN WHO HAD COMPLETE POWER TO ELIMINATE ALL COMPETITION AMONG
THEMSELVES AND TO PREVENT ALL COMPETITION FROM OTHERS, A SITUATION WAS
CREATED NOT INCLUDED WITHIN THE EXEMPTIONS OF THE CLAYTON AND NORRIS
LAGUARDIA ACTS. 

IT MUST BE REMEMBERED THAT THE EXEMPTIONS GRANTED THE UNIONS WERE
SPECIAL EXCEPTIONS TO A GENERAL LEGISLATIVE PLAN.  THE PRIMARY
OBJECTIVE OF ALL THE ANTI-TRUST LEGISLATION HAS BEEN TO PRESERVE
BUSINESS COMPETITION AND TO PROSCRIBE BUSINESS MONOPOLY.  IT WOULD BE A
SURPRISING THING IF CONGRESS, IN ORDER TO PREVENT A MISAPPLICATION OF
THAT LEGISLATION TO LABOR UNIONS, HAD BESTOWED UPON SUCH UNIONS
COMPLETE AND UNREVIEWABLE AUTHORITY TO AID BUSINESS GROUPS TO FRUSTRATE
ITS PRIMARY OBJECTIVE.  FOR IF BUSINESS GROUPS, BY COMBINING WITH LABOR
UNIONS, CAN FIX PRICES AND DIVIDE UP MARKETS, IT WAS LITTLE MORE THAN A
FUTILE GESTURE FOR CONGRESS TO PROHIBIT PRICE FIXING BY BUSINESS GROUPS
THEMSELVES.  SELDOM, IF EVER, HAS IT BEEN CLAIMED BEFORE, THAT BY
PERMITTING LABOR UNIONS TO CARRY ON THEIR OWN ACTIVITIES, CONGRESS
INTENDED COMPLETELY TO ABDICATE ITS CONSTITUTIONAL POWER TO REGULATE
INTERSTATE COMMERCE AND TO EMPOWER INTERESTED BUSINESS GROUPS TO SHIFT
OUR SOCIETY FROM A COMPETITIVE TO A MONOPOLISTIC ECONOMY.  FINDING NO
PURPOSE OF CONGRESS TO IMMUNIZE LABOR UNIONS WHO AID AND ABET
MANUFACTURERS AND TRADERS IN VIOLATING THE SHERMAN ACT, WE HOLD THAT
THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE RESPONDENTS HAD
VIOLATED THE ACT. 

OUR HOLDING MEANS THAT THE SAME LABOR UNION ACTIVITIES MAY OR MAY NOT
BE IN VIOLATION OF THE SHERMAN ACT, DEPENDENT UPON WHETHER THE UNION
ACTS ALONE OR IN COMBINATION WITH BUSINESS GROUPS.  THIS, IT IS ARGUED,
BRINGS ABOUT A WHOLLY UNDESIRABLE RESULT - ONE WHICH LEAVES LABOR
UNIONS FREE TO ENGAGE IN CONDUCT WHICH RESTRAINS TRADE.  BUT THE
DESIRABILITY OF SUCH AN EXEMPTION OF LABOR UNIONS IS A QUESTION FOR THE
DETERMINATION OF CONGRESS.  APEX HOSIERY CO. V. LEADER, SUPRA.  IT IS
TRUE THAT MANY LABOR UNION ACTIVITIES DO SUBSTANTIALLY INTERRUPT THE
COURSE OF TRADE AND THAT THESE ACTIVITIES, LIFTED OUT OF THE
PROHIBITIONS OF THE SHERMAN ACT, INCLUDE SUBSTANTIALLY ALL, IF NOT ALL,
OF THE NORMAL PEACEFUL ACTIVITIES OF LABOR UNIONS.  IT IS ALSO TRUE
THAT THE SHERMAN ACT "DRAWS NO DISTINCTION BETWEEN THE RESTRAINTS
EFFECTED BY VIOLENCE AND THOSE ACHIEVED BY PEACEFUL ...  MEANS," APEX
HOSIERY CO. V. LEADER, SUPRA, 513, AND THAT A UNION'S EXEMPTION FROM
THE SHERMAN ACT IS NOT TO BE DETERMINED BY A JUDICIAL "JUDGMENT
REGARDING THE WISDOM OR UNWISDOM, THE RIGHTNESS OR WRONGNESS, THE
SELFISHNESS OR UNSELFISHNESS OF THE END OF WHICH THE PARTICULAR UNION
ACTIVITIES ARE THE MEANS."  UNITED STATES V. HUTCHESON, SUPRA, 232. 
THUS, THESE CONGRESSIONALLY PERMITTED UNION ACTIVITIES MAY RESTRAIN
TRADE IN AND OF THEMSELVES.  THERE IS NO DENYING THE FACT THAT MANY OF
THEM DO SO, BOTH DIRECTLY AND INDIRECTLY.  CONGRESS EVIDENTLY
CONCLUDED, HOWEVER, THAT THE CHIEF OBJECTIVE OF ANTI-TRUST LEGISLATION,
PRESERVATION OF BUSINESS COMPETITION, COULD BE ACCOMPLISHED BY APPLYING
THE LEGISLATION PRIMARILY ONLY TO THOSE BUSINESS GROUPS WHICH ARE
DIRECTLY INTERESTED IN DESTROYING COMPETITION.  THE DIFFICULTY OF
DRAWING LEGISLATION PRIMARILY AIMED AT TRUSTS AND MONOPOLIES SO THAT IT
COULD ALSO BE APPLIED TO LABOR ORGANIZATIONS WITHOUT IMPAIRING THE
COLLECTIVE BARGAINING AND RELATED RIGHTS OF THOSE ORGANIZATIONS HAS
BEEN EMPHASIZED BOTH BY CONGRESSIONAL AND JUDICIAL ATTEMPTS TO DRAW
LINES BETWEEN PERMISSIBLE AND PROHIBITED UNION ACTIVITIES.  THERE IS,
HOWEVER, ONE LINE WHICH WE CAN DRAW WITH ASSURANCE THAT WE FOLLOW THE
CONGRESSIONAL PURPOSE.  WE KNOW THAT CONGRESS FEARED THE CONCENTRATED
POWER OF BUSINESS ORGANIZATIONS TO DOMINATE MARKETS AND PRICES.  IT
INTENDED TO OUTLAW BUSINESS MONOPOLIES.  A BUSINESS MONOPOLY IS NO LESS
SUCH BECAUSE A UNION PARTICIPATES, AND SUCH PARTICIPATION IS A
VIOLATION OF THE ACT. 

THIS BRINGS US TO A CONSIDERATION OF THE SCOPE OF THE DECLARATORY
JUDGMENT AND THE INJUNCTION GRANTED BY THE DISTRICT COURT.  WE CANNOT
SUSTAIN THE JUDGMENT OR THE INJUNCTION IN THE FORM IN WHICH THEY WERE
ENTERED.  THE JUDGMENT AND THE INJUNCTION APPLY ONLY TO THE UNION, ITS
MEMBERS, AND ITS AGENTS, SINCE THEY WERE THE ONLY PARTIES AGAINST WHOM
RELIEF WAS ASKED.  THE JUDGMENT DECLARED THAT "THE COMBINATION AND
CONSPIRACY AND THE ACTS DONE AND BEING DONE IN FURTHERANCE THEREOF ALL
AS SET FORTH IN THE FINDINGS OF FACT HEREIN ARE UNLAWFUL AND CONTRARY
TO THE  ... SHERMAN ANTI-TRUST LAW, AS AMENDED AND SUPPLEMENTED." 
THERE WERE 374 FINDINGS OF FACT WHICH COVER 111 PAGES OF THE PRINTED
RECORD.  THESE FINDINGS WERE MADE FROM 25,000 PAGES OF EVIDENCE.  THE
DECLARATORY JUDGMENT, WHICH WAS THE FOUNDATION FOR THE INJUNCTION, IS
THUS ALMOST THE EQUIVALENT OF A STATEMENT THAT EACH FACT "AS SET FORTH
IN THE 374 FINDINGS" CONSTITUTED A VIOLATION OF THE SHERMAN ACT.  AND
WHEN WE TURN TO THE SWEEPING COMMANDS OF THE INJUNCTION, WE FIND THAT
ITS TERMS, DIRECTED AGAINST THE UNION AND ITS AGENTS ALONE, RESTRAINED
THE UNION, EVEN THOUGH NOT ACTING IN CONCERT WITH THE MANUFACTURERS,
FROM DOING THE VERY THINGS THAT THE CLAYTON ACT SPECIFICALLY PERMITS
UNIONS TO DO.  WE AGREE WITH THE FOLLOWING STATEMENT OF THE CIRCUIT
COURT OF APPEALS: 

"INDEED, THE INJUNCTION IS SO FAR CONTRARY TO THE STATUTE THAT ITS
MANDATE MIGHT WELL HAVE BEEN STATED IN THE CONVERSE OF THE TERMS OF THE
CLAYTON ACT, SEC. 20, VIZ., AS RESTRAINING LOCAL 3 AND ITS OFFICERS
'FROM TERMINATING ANY RELATION OF EMPLOYMENT, OR FROM CEASING TO
PERFORM ANY WORK OR LABOR  ...  OR FROM CEASING TO PATRONIZE  ...  ANY
PARTY TO SUCH DISPUTE, OR FROM RECOMMENDING, ADVISING, OR PERSUADING
OTHERS BY PEACEFUL AND LAWFUL MEANS SO TO DO.'  29 U.S.C.A., SEC. 52,
SUPRA.  AND THE VAGUE SCOPE OF THE DECLARATORY JUDGMENT IS EVEN MORE
INDEFINITELY INCLUSIVE, IN TERMS REACHING ALL THE ACTIVITIES OF THE
DEFENDANT SET FORTH IN THE FINDINGS." 

RESPONDENTS OBJECTED TO THE FORM OF THE INJUNCTION AND SPECIFICALLY
REQUESTED THAT IT BE AMENDED SO AS TO ENJOIN ONLY THOSE PROHIBITED
ACTIVITIES IN WHICH THE UNION ENGAGED IN COMBINATION "WITH ANY PERSON,
FIRM OR CORPORATION WHICH IS A NON-LABOR GROUP  ..."  WITHOUT SUCH A
LIMITATION, THE INJUNCTION AS ISSUED RUNS DIRECTLY COUNTER TO THE
CLAYTON AND THE NORRIS-LAGUARDIA ACTS.  THE DISTRICT COURT'S REFUSAL SO
TO LIMIT IT WAS ERROR. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS ORDERING THE ACTION
DISMISSED IS ACCORDINGLY REVERSED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR MODIFICATION AND CLARIFICATION OF THE JUDGMENT AND
INJUNCTION, CONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  26 STAT. 209; 50 STAT. 693. 

FN2  SECTIONS 1 AND 2 PROVIDE IN PART AS FOLLOWS: 

"SEC. 1.  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 HEREBY DECLARED TO BE
ILLEGAL  ... 

"SEC. 2.  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  ..." 

FN3  FOR A COMPREHENSIVE DISCUSSION OF THE HISTORY OF THE SHERMAN
ACT, SEE 51 CONG. REC. 13661-13668, 63RD CONG., 2ND SESS.  AND SEE
IBID., 13969-13971, 14013-14016, 14020-14023.  SEE ALSO BERMAN, LABOR
AND THE SHERMAN ACT (1930), PP. 1-98; MASON, ORGANIZED LABOR AND THE
LAW, CHAPTERS 7 & 8; GOMPERS, "THE SHERMAN LAW.  AMEND IT OR END IT,"
AMERICAN FEDERATIONIST, VOL. 17, NO. 3, MARCH, 1910, PP. 197, 202.  FOR
PRIOR DISCUSSIONS IN THIS COURT OF THE DOMINANT CONCERN OF CONGRESS TO
PROTECT CONSUMERS FROM BUSINESS COMBINATIONS, SEE UNITED STATES V.
TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290; STANDARD OIL CO. V. UNITED
STATES, 221 U.S. 1; APEX HOSIERY CO. V. LEADER, 310 U.S. 469; UNITED
STATES V. UNDERWRITERS' ASSN., 322 U.S. 533.    FN4  SEE NOTE 3, SUPRA.
SEE ALSO 51 CONG. REC. 9068-9077; 9081-9091; UNITED STATES V.
AMALGAMATED COUNCIL, 54 F. 994(1893); WATERHOUSE V. COMER, 55 F.
149(1893); UNITED STATES V. DEBS, 64 F. 724(1894); LOEWE V. LAWLOR, 208
U.S. 274, 235 U.S. 522.  AND SEE APPENDIX TO BERMAN, OP. CIT., SUPRA. 
FN5  SEE AUTHORITIES CITED IN FOOTNOTES 3 AND 4, SUPRA.  AND SEE
FRANKFURTER AND GREENE, THE LABOR INJUNCTION (1930); BERMAN, OP. CIT.
SUPRA, PP. 99-117. 

FN6  38 STAT. 730. 

FN7  SENATE REPORT NO. 698, 63RD CONG., 2ND SESS. 

FN8  IBID., 10-12. 

FN9  SECTION 6 READS AS FOLLOWS:  "THAT THE LABOR OF A HUMAN BEING IS
NOT A COMMODITY OR ARTICLE OF COMMERCE.  NOTHING CONTAINED IN THE
ANTITRUST LAWS SHALL BE CONSTRUED TO FORBID THE EXISTENCE AND OPERATION
OF LABOR, AGRICULTURAL, OR HORTICULTURAL ORGANIZATIONS, INSTITUTED FOR
THE PURPOSES OF MUTUAL HELP, AND NOT HAVING CAPITAL STOCK OR CONDUCTED
FOR PROFIT, OR TO FORBID OR RESTRAIN INDIVIDUAL MEMBERS OF SUCH
ORGANIZATIONS FROM LAWFULLY CARRYING OUT THE LEGITIMATE OBJECTS
THEREOF; NOR SHALL SUCH ORGANIZATIONS, OR THE MEMBERS THEREOF, BE HELD
OR CONSTRUED TO BE ILLEGAL COMBINATIONS OR CONSPIRACIES IN RESTRAINT OF
TRADE, UNDER THE ANTITRUST LAWS." 

FN10  SECTION 20 READS IN PART AS FOLLOWS: "AND NO SUCH RESTRAINING
ORDER OR INJUNCTION SHALL PROHIBIT ANY PERSON OR PERSONS, WHETHER
SINGLY OR IN CONCERT, FROM TERMINATING ANY RELATION OF EMPLOYMENT, OR
FROM CEASING TO PERFORM ANY WORK OR LABOR, OR FROM RECOMMENDING,
ADVISING, OR PERSUADING OTHERS BY PEACEFUL MEANS SO TO DO; OR FROM
ATTENDING AT ANY PLACE WHERE ANY SUCH PERSON OR PERSONS MAY LAWFULLY
BE, FOR THE PURPOSE OF PEACEFULLY OBTAINING OR COMMUNICATING
INFORMATION, OR FROM PEACEFULLY PERSUADING ANY PERSON TO WORK OR TO
ABSTAIN FROM WORKING; OR FROM CEASING TO PATRONIZE OR TO EMPLOY ANY
PARTY TO SUCH DISPUTE, OR FROM RECOMMENDING, ADVISING, OR PERSUADING
OTHERS BY PEACEFUL AND LAWFUL MEANS SO TO DO; OR FROM PAYING OR GIVING
TO, OR WITHHOLDING FROM, ANY PERSON ENGAGED IN SUCH DISPUTE, ANY STRIKE
BENEFITS OR OTHER MONEYS OR THINGS OF VALUE; OR FROM PEACEABLY
ASSEMBLING IN A LAWFUL MANNER, AND FOR LAWFUL PURPOSES; OR FROM DOING
ANY ACT OR THING WHICH MIGHT LAWFULLY BE DONE IN THE ABSENCE OF SUCH
DISPUTE BY ANY PARTY THERETO; NOR SHALL ANY OF THE ACTS SPECIFIED IN
THIS PARAGRAPH BE CONSIDERED OR HELD TO BE VIOLATIONS OF ANY LAW OF THE
UNITED STATES." 

FN11  MILK WAGON DRIVERS' UNION V. LAKE VALLEY FARM PRODUCTS, 311 U.S.
91; NEW NEGRO ALLIANCE V. SANITARY GROCERY CO., 303 U.S. 552. 

FN12  IT HAS BEEN ARGUED THAT NO LABOR DISPUTES EXISTED.  THE
ARGUMENT IS UNTENABLE.  WE DO NOT HAVE HERE, AS WE DID IN COLUMBIA
RIVER PACKERS ASSN. V. HINTON, 315 U.S. 143, A DISPUTE BETWEEN GROUPS
OF BUSINESS MEN REVOLVING SOLELY AROUND THE PRICE AT WHICH ONE GROUP
WOULD SELL COMMODITIES TO ANOTHER GROUP.  ON THE CONTRARY, LOCAL NO. 3
IS A LABOR UNION AND ITS SPUR TO ACTION RELATED TO WAGES AND WORKING
CONDITIONS. 

FN13 UNITED STATES V. BUILDING TRADES COUNCIL, 313 U.S. 539; UNITED
STATES V. BROTHERHOOD OF CARPENTERS, 313 U.S. 539; UNITED STATES V. HOD
CARRIERS COUNCIL, 313 U.S. 539; UNITED STATES V. FEDERATION OF
MUSICIANS, 318 U.S. 741. 

FN14  UNITED STATES V. BRIMS, 272 U.S. 549; LOCAL 167 V. UNITED
STATES, 291 U.S. 293. 

MR. JUSTICE ROBERTS. 

WHILE I SHOULD REVERSE THE JUDGMENT, I AM UNABLE TO CONCUR IN THE
COURT'S OPINION.  I THINK IT CONVEYS AN INCORRECT IMPRESSION OF THE
GENESIS AND CHARACTER OF THE CONSPIRACY CHARGED IN THE COMPLAINT, AND
MISAPPLIES RECENT DECISIONS OF THE COURT. 

THERE IS NO DOUBT THAT THE PROGRAMME ADOPTED BY LOCAL NO. 3 ENVISAGED
THE EXCLUSION, FROM THE ENTIRE NEW YORK CITY AREA, OF ANY ELECTRICAL
WORKERS, WHETHER ENGAGED IN MANUFACTURING OR INSTALLING ELECTRICAL
DEVICES AND EQUIPMENT, EXCEPT MEMBERS OF THE LOCAL.  THE ORGANIZATION
FROM TIME TO TIME INCREASED THE CLASSES OF MEMBERS, SO AS TO ADD TO ITS
ORIGINAL MEMBERSHIP OF WORKERS ENGAGED IN FABRICATING AND INSTALLING
ELECTRICAL DEVICES, EQUIPMENT, AND APPARATUS THE ADDITIONAL CATEGORIES
OF SHOP EMPLOYES ENGAGED IN MANUFACTURING ELECTRICAL EQUIPMENT AND ALL
WORKERS EMPLOYED IN ALTERATIONS, ADDITIONS, AND REPAIRS INVOLVING
ELECTRICAL EQUIPMENT.  IT SUCCEEDED IN UNIONIZING AND IMPOSING CLOSED
SHOPS EMPLOYING ONLY MEMBERS OF LOCAL 3, NOT ONLY ON ALL BUILDING
CONTRACTORS, BUT ON ALL REPAIR CONTRACTORS AND THEIR ESTABLISHMENTS AND
ALL MANUFACTURERS OF ELECTRICAL EQUIPMENT.  MEMBERSHIP IN THE UNION WAS
CLOSELY RESTRICTED AND THE CAMPAIGN EVENTUATED IN A SITUATION WHERE NO
ELECTRICAL WORK COULD BE DONE BY PERSONS OTHER THAN MEMBERS OF THE
UNION, NO BUILDING CONSTRUCTION COULD BE DONE BY OTHER THAN UNION MEN,
NO MATTER WHAT THEIR TRADE, AND NO MANUFACTURED ELECTRICAL APPLIANCE OR
APPARATUS COULD BE INSTALLED IN THE NEW YORK AREA WITHOUT THE CONSENT
OF LOCAL NO. 3.  THAT CONSENT WAS GIVEN ONLY IF THE DEVICE, APPLIANCE
OR APPARATUS WAS MANUFACTURED, OR WORK DONE ON IT, BY MEMBERS OF THE
LOCAL.  COMPLICATED APPARATUS WHICH HAD TO BE MANUFACTURED OUTSIDE NEW
YORK CITY, BECAUSE NO ESTABLISHMENT MAKING IT EXISTED WITHIN THE CITY,
HAD TO BE DISMANTLED AND REBUILT BY MEMBERS OF THE LOCAL BEFORE IT
COULD BE USED IN THE NEW YORK AREA. 

IT IS TRUE THAT BEFORE LOCAL NO. 3 OBTAINED THIS COMPLETE CONTROL OF
THE INDUSTRY IN ITS AREA OF OPERATION CERTAIN ASSOCIATED BUILDING
CONTRACTORS DEALT JOINTLY AS AN ASSOCIATION WITH THE UNION.  AS
RESPECTS CERTAIN MANUFACTURERS WHICH CAME UNDER THE DOMINANCE OF THE
UNION THIS IS NOT TRUE.  NOR IS IT TRUE OF REPAIR BUSINESSES.  ON THE
CONTRARY, IT IS THE FACT THAT EACH ONE OF THESE WAS INDIVIDUALLY
COERCED BY THE UNION'S POWER TO AGREE TO ITS TERMS.  IT IS, THEREFORE,
INACCURATE TO SAY THAT THE EMPLOYERS USED THE UNION TO AID AND ABET
THEM TO RESTRAIN INTERSTATE COMMERCE.  SOME OF THE EMPLOYERS, NOTABLY
THE BUILDING CONTRACTORS, DID JOINTLY COOPERATE WITH THE UNION; OTHER
SORTS OF EMPLOYERS WERE FORCED INDIVIDUALLY TO COMPLY WITH THE UNION'S
DEMANDS, UNTIL ALL OF THEM HAD SUCCUMBED. 

THERE CAN BE NO QUESTION OF THE PURPOSE OF THE UNION.  IT WAS TO
EXCLUDE FROM USE IN THE CITY OF NEW YORK ARTICLES OF COMMERCE MADE
OUTSIDE THE CITY AND OFFERED FOR SALE TO USERS WITHIN THE CITY; IT WAS
COMPLETELY TO MONOPOLIZE THE MANUFACTURE AND SALE OF ALL ELECTRICAL
EQUIPMENT AND DEVICES WITHIN NEW YORK, AND TO EXCLUDE FROM USE IN THE
AREA EVERY SUCH ARTICLE MANUFACTURED OUTSIDE THE CITY, WHETHER IN A
CLOSED UNION SHOP OR NOT.  THE RESULTS OF THIS PROGRAMME ARE OBVIOUS. 
INTERSTATE COMMERCE BETWEEN NEW YORK CITY AND MANUFACTURERS HAVING
ESTABLISHMENTS OUTSIDE THE CITY WAS COMPLETELY BROKEN OFF, AND THE
MONOPOLY CREATED RAISED, STANDARDIZED AND FIXED THE PRICES OF
MERCHANDISE AND APPARATUS. 

AS I UNDERSTAND THE OPINION OF THE COURT, SUCH A PROGRAMME, AND SUCH
A RESULT, IS WHOLLY WITHIN THE LAW PROVIDED ONLY THAT EMPLOYERS DO NOT
JOINTLY AGREE TO COMPLY WITH THE UNION'S DEMANDS.  UNLESS I MISREAD THE
OPINION, THE UNION IS AT LIBERTY TO IMPOSE EVERY TERM AND CONDITION AS
SHOWN BY THE RECORD IN THIS CASE AND TO ENFORCE THOSE CONDITIONS AND
PROCURE AN AGREEMENT FROM EACH EMPLOYER TO SUCH CONDITIONS BY CALLING
STRIKES, BY LOCKOUT, AND BOYCOTT, PROVIDED ONLY SUCH EMPLOYER AGREES
FOR HIMSELF ALONE AND NOT IN CONCERT WITH ANY OTHER. 

I POINT OUT AGAIN, AS RESPECTS CERTAIN EMPLOYERS HERE CONCERNED, THAT
THAT IS THE SITUATION, WHEREAS, WITH RESPECT TO THE BUILDING
CONSTRUCTION EMPLOYERS, THERE WAS MUTUAL AGREEMENT WITH THE UNION.  BUT
THE OPINION TAKES NO NOTE OF THE DISTINCTION IN FACT.  IT SEEMS TO ME
THAT THE LAW AS ANNOUNCED BY THE COURT CREATES AN IMPOSSIBLE SITUATION
SUCH AS CONGRESS NEVER CONTEMPLATED AND LEAVES COMMERCE PARALYZED
BEYOND ESCAPE. 

UNTIL APEX HOSIERY CO. V. LEADER, 310 U.S. 469, WAS DECIDED I HAD
THOUGHT THAT A CONSPIRACY BY LABORERS TO INTERRUPT THE FREE FLOW OF
COMMERCE WAS A VIOLATION OF THE SHERMAN ACT.  THAT CASE, HOWEVER,
ANNOUNCED A NARROWER DOCTRINE.  ITS TEACHING IS THAT ONLY ACTIVITY OF
LABOR WHICH HARMS THE COMMERCIAL COMPETITIVE SYSTEM THROUGH RAISING
PRICES, RESTRICTING PRODUCTION, OR OTHERWISE CONTROLLING THE MARKET,
FALLS WITHIN THE PROSCRIPTION OF THE SHERMAN ACT.  IN THAT CASE IT WAS
SAID: 

"FURTHERMORE, SUCCESSFUL UNION ACTIVITY, AS FOR EXAMPLE CONSUMMATION
OF A WAGE AGREEMENT WITH EMPLOYERS, MAY HAVE SOME INFLUENCE ON PRICE
COMPETITION BY ELIMINATING THAT PART OF SUCH COMPETITION WHICH IS BASED
ON DIFFERENCES IN LABOR STANDARDS.  SINCE, IN ORDER TO RENDER A LABOR
COMBINATION EFFECTIVE IT MUST ELIMINATE THE COMPETITION FROM NON-UNION
MADE GOODS, SEE AMERICAN STEEL FOUNDRIES V. TRI-CITY CENTRAL TRADES
COUNCIL, 257 U.S. 184, 209, AN ELIMINATION OF PRICE COMPETITION BASED
ON DIFFERENCES IN LABOR STANDARDS IS THE OBJECTIVE OF ANY NATIONAL
LABOR ORGANIZATION.  BUT THIS EFFECT ON COMPETITION HAS NOT BEEN
CONSIDERED TO BE THE KIND OF CURTAILMENT OF PRICE COMPETITION
PROHIBITED BY THE SHERMAN ACT." 

IT WAS ADDED THAT THE RESTRAINT THERE UNDER EXAMINATION WAS NOT SHOWN
"TO HAVE ANY ACTUAL OR INTENDED EFFECT ON PRICE OR PRICE COMPETITION." 
THE DECISION INDICATED THAT, IN SOME UNDEFINED CIRCUMSTANCES, LABOR
ORGANIZATIONS MIGHT BE SUBJECT TO THE STATUTE. 

IN UNITED STATES V. HUTCHESON, 312 U.S. 219, SECONDARY BOYCOTTS BY
LABOR UNIONS TO KEEP OUT OF THE MARKET NON-UNION GOODS, OR GOODS WORKED
ON BY OTHER UNIONS, WERE HELD IMMUNE FROM LIABILITY, CIVIL OR CRIMINAL,
UNDER THE SHERMAN ACT.  IT WAS THERE SAID: 

"SO LONG AS A UNION ACTS IN ITS SELF-INTEREST AND DOES NOT COMBINE
WITH NON-LABOR GROUPS, THE LICIT AND THE ILLICIT UNDER SEC. 20 ARE NOT
TO BE DISTINGUISHED BY ANY JUDGMENT REGARDING THE WISDOM OR UNWISDOM,
THE RIGHTNESS OR WRONGNESS, THE SELFISHNESS OR UNSELFISHNESS OF THE END
OF WHICH THE PARTICULAR UNION ACTIVITIES ARE THE MEANS." 

THUS, ALTHOUGH A CONSPIRACY BETWEEN LABORERS IS DISTINGUISHED FROM
ONE BETWEEN THEM AND EMPLOYERS, IT IS INTIMATED, AS I THINK, THAT A
PURPOSE ON THE PART OF A LABOR GROUP TO HARM THE COMMERCIAL COMPETITIVE
SYSTEM, TO RAISE PRICES, TO RESTRICT PRODUCTION, OR OTHERWISE CONTROL
THE MARKET, WOULD NOT RENDER THE CONCERTED ACTION ILLEGAL, PROVIDED
ONLY THAT NO EMPLOYER PARTICIPATED.  THE RESERVATION MADE IN THE APEX
CASE WAS DISCARDED IN THE HUTCHESON CASE.  THIS ADVANCE IN THE LAW WAS
EMPHASIZED IN UNITED STATES V. BUILDING TRADES COUNCIL, 313 U.S. 539,
AND UNITED STATES V. BROTHERHOOD OF CARPENTERS, 313 U.S. 539, BUT THE
COURT WENT EVEN FARTHER, IN UNITED STATES V. FEDERATION OF MUSICIANS,
318 U.S. 741, AND, AS I THINK, RENDERED A DECISION CONTRARY TO THAT NOW
ANNOUNCED.  THERE A MOTION TO DISMISS A BILL OF COMPLAINT WAS GRANTED
AND THIS COURT SUSTAINED THAT ACTION.  THE COMPLAINT CHARGED A
CONSPIRACY BY THE AMERICAN FEDERATION OF MUSICIANS, A NATIONWIDE
ORGANIZATION, AND ITS OFFICERS, TO OBTAIN EMPLOYMENT FOR ITS MEMBERS BY
ELIMINATING ENTIRELY FROM INTERSTATE COMMERCE ALL PHONOGRAPH RECORDS
AND ELECTRICAL TRANSCRIPTIONS OF MUSIC AND ELIMINATING ALL COMPETITION
BETWEEN TRANSCRIBED MUSIC AND THAT PRODUCED BY LIVING MUSICIANS.  THE
CONSPIRACY CHARGED WAS ABSOLUTELY TO PREVENT MANUFACTURE OR SALE OF
PHONOGRAPH RECORDS AND ELECTRICAL TRANSCRIPTIONS; TO ELIMINATE FROM THE
MARKET ALL MANUFACTURERS, DISTRIBUTORS, JOBBERS OR RETAILERS OF THE
SAME, AND TO PREVENT THE USE OF THE ARTICLES, EITHER IN PUBLIC PLACES
OR PRIVATE HOMES, AND, OF COURSE, TO PREVENT THEIR SALE.  IN THE BILL
IT WAS CHARGED THAT THE CONSPIRACY DID NOT GROW OUT OF OR INVOLVE ANY
DISPUTE CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT; THAT THE PURPOSE
OF THE CONSPIRACY WAS TO ELIMINATE FROM THE MARKET, MANUFACTURE, SALE
AND USE OF MECHANICAL RECORDINGS AND RECORDS AND TRANSCRIPTIONS UNLESS
THE PERSONS ENGAGED IN THIS BUSINESS SHOULD ENTER INTO AGREEMENTS WITH
THE UNION, HIRING USELESS AND UNNECESSARY LABOR, AS THE UNION WOULD
DEMAND.  THE FURTHER PURPOSE OF THE CONSPIRACY CHARGED WAS TO EXCLUDE
FROM THE MARKET COMPETITION BY ANYONE WHO FAILED EXCLUSIVELY TO EMPLOY
MEMBERS OF THE UNION.  THE COMPLAINT FURTHER CHARGED THAT THE PURPOSE
AND EFFECT OF THE CONSPIRACY WAS UNLAWFULLY TO DESTROY ALL MANUFACTURE
AND SALE, IN INTERSTATE COMMERCE, OF PHONOGRAPH RECORDS AND ELECTRICAL
TRANSCRIPTIONS, ELIMINATE ALL COMPETITION BETWEEN MUSIC PRODUCED BY
MECHANICAL MEANS AND MUSIC PRODUCED BY LIVING MUSICIANS, TO DEPRIVE THE
PUBLIC OF AN INEXPENSIVE MEANS OF ENTERTAINMENT IN PUBLIC PLACES AND IN
THE HOME. 

THIS COURT'S AFFIRMANCE OF THE DISMISSAL OF THIS COMPLAINT CAN ONLY
MEAN THAT EVERY BUSINESSMAN WHO DESIRES TO STAY IN BUSINESS MUST, IF A
UNION SO DEMANDS, ENTER INTO AN AGREEMENT WITH THE UNION ELIMINATING
CERTAIN ARTICLES FROM HIS MANUFACTURE, FROM HIS SALES, OR FROM HIS
USE.  THE DECISION MUST NECESSARILY MEAN THAT IT WOULD NOT BE UNLAWFUL
TO ENTER INTO SUCH AN AGREEMENT WITH THE UNION, OTHERWISE WE SHOULD
HAVE THE ANOMALY THAT THE UNION'S DEMAND FOR SUCH AN AGREEMENT IS
IMPECCABLE BUT THE EMPLOYER'S ACQUIESCENCE IS UNLAWFUL.  AS SHOWN BY
THE OPINION OF THE DISTRICT COURT IN THAT CASE (47 F.SUPP.  304) THE
GOVERNMENT CONTENDED THAT THE UNION'S EFFORT REPRESENTED "AN ATTEMPT BY
THE UNION TO FORCE EMPLOYERS TO COMBINE WITH IT FOR THE PURPOSE OF
RESTRAINING INTERSTATE TRADE  ..."  THE DISTRICT COURT SHORTLY ANSWERED
THIS CONTENTION (P. 309) BY SAYING: "IN THE COURT'S OPINION, UNITED
STATES V. BRIMS, 272 U.S. 549,  ...  AND LIKE CASES, ARE NOT
PERTINENT."  THIS MUST MEAN THAT EACH EMPLOYER, IN THE INSTANT CASE, IS
AT LIBERTY TO AGREE WITH THE UNION ON ALL THE TERMS AND CONDITIONS
WHICH CREATE A COMPLETE MONOPOLY, A COMPLETE BOYCOTT, A COMPLETE
CLOSING OF THE MARKET, AND A SERIOUS PRICE FIXING AFFECTING COMPETITIVE
COMMERCIAL TRANSACTIONS.  THIS IS WHAT I UNDERSTAND THE COURT NOW
HOLDS.  THIS IS WHAT WAS ACCOMPLISHED WITH IMPUNITY BY THE FEDERATION
OF MUSICIANS.  BUT THE SITUATION CREATED BY SUCH A HOLDING IS UNREAL. 
AS I HAVE POINTED OUT, IN TWO BRANCHES OF THE INDUSTRY, THE
MANUFACTURERS AND EMPLOYERS, ONE BY ONE, SUCCUMBED TO UNION PRESSURE
AND ENTERED INTO AGREEMENTS.  WAS NOT SUCH AN ACTION, IN EACH INSTANCE,
A CONSPIRACY?  ARE MORE THAN TWO PARTIES REQUIRED TO CONSPIRE, AND DID
NOT EACH OF THOSE CONSPIRACIES, TO SOME EXTENT, HINDER AND RESTRAIN
INTERSTATE COMMERCE AND AFFECT THE MARKET AND THE COMPETITIVE PRICE
SITUATION?  AS EACH AGREEMENT WAS CONSUMMATED THE MARKET WAS, TO THAT
EXTENT, CLOSED AND THE BOYCOTT AGAINST OUT-OF-THE-CITY MANUFACTURES
TIGHTENED. 

BUT MORE.  THE UNION DID NOT CONDUCT ITS CAMPAIGN IN A CORNER. 
ALBEIT THE FINDINGS ARE THAT MANUFACTURERS AND REPAIRERS OF ELECTRICAL
APPLIANCES VIOLENTLY RESISTED THE UNIONIZATION OF THEIR BUSINESSES,
THEY, ONE BY ONE, SURRENDERED AND SIGNED.  IN DOING SO, MANY MUST HAVE
HAD KNOWLEDGE OF WHAT OTHERS WERE DOING OR HAD DONE.  AND, AS THE
COVERAGE BECAME COMPLETE, EACH ONE WAS ENABLED TO STIFLE OUT-OF-TOWN
COMPETITION AND TO RAISE PRICES.  IN ANY ACTION AGAINST THEM AND THE
UNION CHARGING CONSPIRACY, IT WOULD BE URGED THAT A CONSPIRACY NEED NOT
CONSIST OF A WRITTEN OR VERBAL AGREEMENT BUT MIGHT BE INFERRED FROM
SIMILARITY OF ACTION.  AND IT WOULD BE LITTLE PROTECTION TO THE
EMPLOYERS CONCERNED THAT, IN EACH INSTANCE, A SEPARATE AGREEMENT WAS
SIGNED BETWEEN UNION AND EMPLOYER. 

THE COURSE OF DECISION IN THIS COURT HAS NOW CREATED A SITUATION IN
WHICH, BY CONCERTED ACTION, UNIONS MAY SET UP A WALL AROUND A
MUNICIPALITY OF MILLIONS OF INHABITANTS AGAINST IMPORTATION OF ANY
GOODS IF THE UNION IS CAREFUL TO MAKE SEPARATE CONTRACTS WITH EACH
EMPLOYER, AND IF UNION AND EMPLOYERS ARE ABLE TO CONVINCE THE COURT
THAT, WHILE ALL EMPLOYERS HAVE SUCH AGREEMENTS, EACH ACTED
INDEPENDENTLY IN MAKING THEM,  - THIS NOTWITHSTANDING THE AVOWED
PURPOSE TO EXCLUDE GOODS NOT MADE IN THAT CITY BY THE MEMBERS OF THE
UNION; NOTWITHSTANDING THE FACT THAT THE PURPOSE AND INEVITABLE RESULT
IS THE STIFLING OF COMPETITION IN INTERSTATE TRADE AND THE CREATION OF
A MONOPOLY. 

THE ONLY ANSWER I FIND IN THE OPINION OF THE COURT IS THAT CONGRESS
HAS SO PROVIDED.  I THINK IT HAS NOT PROVIDED ANY SUCH THING AND THAT
THE FIGMENTARY DIFFERENCE BETWEEN EMPLOYERS NEGOTIATING JOINTLY WITH
THE ONLY UNION WITH WHICH THEY CAN DEAL,  - WHICH IMPOSES LIKE
CONDITIONS ON ALL EMPLOYERS - AND EACH EMPLOYER DEALING SEPARATELY WITH
THE SAME UNION IS UNREALISTIC AND UNWORKABLE.  AND THE LANGUAGE OF SEC.
20 OF THE CLAYTON ACT MAKES NO SUCH DISTINCTION. 

THIS COURT, AS A RESULT OF ITS PAST DECISIONS, IS IN THE PREDICAMENT
THAT WHATEVER IT DECIDES MUST ENTAIL DISASTROUS RESULTS.  I CAN
UNDERSTAND THAT THE CIRCUIT COURT OF APPEALS FELT CONSTRAINED BY THE
PRIOR DECISIONS OF THIS COURT TO ORDER THE JUDGMENT OF THE DISTRICT
COURT REVERSED AND THE ACTION DISMISSED.  IF THE PRESENT DECISION IS,
AS I THINK, A RETROGRESSION FROM EARLIER HOLDINGS, I WELCOME IT; IF IT
IS BUT A LIMITATION OF THEM I CONCUR IN THE PARTIAL ALLEVIATION OF AN
IMPOSSIBLE SITUATION.  BUT I WOULD NOT LIMIT THE INJUNCTION AS THE
OPINION DIRECTS. 

MR. JUSTICE MURPHY, DISSENTING. 

MY DISAGREEMENT WITH THE COURT RESTS NOT SO MUCH WITH THE LEGAL
PRINCIPLES ANNOUNCED AS WITH THE APPLICATION OF THOSE PRINCIPLES TO THE
FACTS OF THE CASE. 

IF THE UNION IN THIS INSTANCE HAD ACTED ALONE IN ITS SELF-INTEREST,
RESULTING IN A RESTRAINT OF INTERSTATE TRADE, THE SHERMAN ACT
CONCEDEDLY WOULD BE INAPPLICABLE.  BUT IF THE UNION HAD AIDED AND
ABETTED MANUFACTURERS OR TRADERS IN VIOLATING THE ACT, THE UNION'S
STATUTORY IMMUNITY WOULD DISAPPEAR.  I CANNOT AGREE, HOWEVER, THAT THE
CIRCUMSTANCES OF THIS CASE DEMAND THE INVOCATION OF THE LATTER RULE. 

THE UNION HERE HAS NOT IN ANY TRUE SENSE "AIDED" OR "ABETTED" A
PRIMARY VIOLATION OF THE ACT BY THE EMPLOYERS.  IN THE WORDS OF THE
UNION, IT HAS BEEN "THE DYNAMIC FORCE WHICH HAS DRIVEN THE EMPLOYER
GROUP TO ENTER INTO AGREEMENTS" WHEREBY TRADE HAS BEEN AFFECTED.  THE
FACT THAT THE UNION HAS EXPRESSED ITS SELF-INTEREST WITH THE AID OF
OTHERS RATHER THAN SOLELY BY ITS OWN ACTIVITIES SHOULD NOT BE DECISIVE
OF STATUTORY LIABILITY.  WHAT IS LEGAL IF DONE ALONE SHOULD NOT BECOME
ILLEGAL IF DONE WITH THE ASSISTANCE OF OTHERS AND WITH THE SAME PURPOSE
IN MIND.  OTHERWISE A PREMIUM OF UNLAWFULNESS IS PLACED ON COLLECTIVE
BARGAINING. 

HAD THE EMPLOYERS EMBARKED UPON A COURSE OF UNREASONABLE TRADE
RESTRAINTS AND HAD THEY SOUGHT TO IMMUNIZE THEMSELVES FROM THE SHERMAN
ACT BY USING THE UNION AS A SHIELD FOR THEIR NEFARIOUS PRACTICES, WE
WOULD HAVE QUITE A DIFFERENT CASE.  THE UNION THEN COULD NOT BE SAID TO
BE ACTING IN ITS SELF-INTEREST IN COMBINING WITH THE EMPLOYERS TO CARRY
OUT TRADE RESTRAINTS PRIMARILY FOR THE EMPLOYERS' INTERESTS, EVEN
THOUGH INCIDENTAL BENEFITS MIGHT ACCRUE TO THE UNION.  UNDER SUCH
CONDITIONS THE UNION FAIRLY COULD BE SAID TO BE AIDING AND ABETTING A
VIOLATION OF THE ACT AND ITS IMMUNITY WOULD BE LOST.  THE FACTS OF THIS
CASE, HOWEVER, DO NOT ALLOW SUCH CONCLUSIONS TO BE DRAWN. 

I WOULD THEREFORE AFFIRM THE JUDGMENT OF THE COURT BELOW. 
..END :
















HUNT V. CRUMBOCH, 325 U.S. 821 


NO. 570.  ARGUED MARCH 2, 1945.  - DECIDED JUNE 18, 1945.  - 143 F.2D
902, AFFIRMED. 


1.  REFUSAL OF A LABOR UNION TO ADMIT TO MEMBERSHIP THE EMPLOYEES OF
AN INTERSTATE MOTOR CARRIER, AND REFUSAL OF MEMBERS OF THE UNION TO
ACCEPT EMPLOYMENT BY THE CARRIER - EVEN THOUGH AS A RESULT IT WAS
IMPOSSIBLE FOR THE CARRIER TO CONTINUE IN BUSINESS - HELD NOT A
VIOLATION OF THE SHERMAN ANTITRUST ACT, AS AMENDED.  P. 823. 

2.  THAT THE REFUSAL OF MEMBERS OF THE UNION TO ACCEPT EMPLOYMENT BY
THE CARRIER STEMMED FROM PERSONAL ANTAGONISM TOWARD A PARTNER IN THE
CARRIER FIRM - ARISING OUT OF THE KILLING OF A UNION MAN, OF WHICH THE
PARTNER WAS ACQUITTED - DID NOT RENDER SUCH REFUSAL A VIOLATION OF THE
SHERMAN ACT.  P. 824. 

3.  THE FACT THAT THE REFUSAL OF THE UNION MEMBERS TO ACCEPT
EMPLOYMENT WAS RELATED TO THE BUSINESS OF AN INTERSTATE CARRIER DID NOT
MAKE SUCH REFUSAL A VIOLATION OF THE SHERMAN ACT.  P. 825. 

4.  A LABOR UNION'S BREACH OF DUTY TO EMPLOYEES IN A COLLECTIVE
BARGAINING GROUP IS NOT, OF ITSELF, A VIOLATION OF THE SHERMAN ACT.  P.
826. 

5.  THE SHERMAN ACT DOES NOT AFFORD A REMEDY FOR EVERY TORT COMMITTED
BY OR AGAINST PERSONS ENGAGED IN INTERSTATE COMMERCE.  P. 826. 

6.  THE QUESTION WHETHER THE CONDUCT OF THE UNION AND ITS MEMBERS IS
ACTIONABLE UNDER STATE LAW IS NOT HERE INVOLVED.  P. 826. 

HUNT ET AL., CO-PARTNERS TRADING AS HUNT'S MOTOR FREIGHT & FOOD
PRODUCTS TRANSPORT, V. CRUMBOCH ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 323 U.S. 704, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE DEFENDANTS, 47 F.SUPP.  571, IN A SUIT FOR AN INJUNCTION AND TREBLE
DAMAGES UNDER THE SHERMAN ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER AN ORGANIZATION OF LABORING MEN VIOLATED
THE SHERMAN ACT, AS AMENDED, 26 STAT. 209, 38 STAT. 730, BY REFUSING TO
ADMIT TO MEMBERSHIP PETITIONER'S EMPLOYEES, AND BY REFUSING TO SELL
THEIR SERVICES TO PETITIONER, THEREBY MAKING IT IMPOSSIBLE FOR
PETITIONER PROFITABLY TO CONTINUE IN BUSINESS. 

FOR ABOUT FOURTEEN YEARS PRIOR TO 1939, THE PETITIONER, A BUSINESS
PARTNERSHIP ENGAGED IN MOTOR TRUCKING, CARRIED FREIGHT UNDER A CONTRACT
WITH THE GREAT ATLANTIC & PACIFIC TEA CO. (A & P).  EIGHTY-FIVE PERCENT
OF THE MERCHANDISE THUS HAULED BY PETITIONER WAS INTERSTATE, FROM AND
TO PHILADELPHIA, PENNSYLVANIA.  THE RESPONDENT UNION, COMPOSED OF
DRIVERS AND HELPERS, WAS AFFILIATED WITH OTHER A.F. OF L. UNIONS WHOSE
MEMBERS WORKED AT LOADING AND HAULING OF FREIGHT BY MOTOR TRUCK.  IN
1937, THE RESPONDENT UNION CALLED A STRIKE OF THE TRUCKERS AND HAULERS
OF A & P IN PHILADELPHIA FOR THE PURPOSE OF ENFORCING A CLOSED SHOP. 
THE PETITIONER, REFUSING TO UNIONIZE ITS BUSINESS, ATTEMPTED TO OPERATE
DURING THE STRIKE.  MUCH VIOLENCE OCCURRED.  ONE OF THE UNION MEN WAS
KILLED NEAR UNION HEADQUARTERS, AND A MEMBER OF THE PETITIONER
PARTNERSHIP WAS TRIED FOR THE HOMICIDE AND ACQUITTED.  A & P AND THE
UNION ENTERED INTO A CLOSED-SHOP AGREEMENT, WHEREUPON ALL CONTRACT
HAULERS WORKING FOR A & P, INCLUDING THE PETITIONER, WERE NOTIFIED THAT
THEIR EMPLOYEES MUST JOIN AND BECOME MEMBERS OF THE UNION.  ALL OF THE
OTHER CONTRACTOR HAULERS EXCEPT PETITIONER EITHER JOINED THE UNION OR
MADE CLOSED-SHOP AGREEMENTS WITH IT.  THE UNION, HOWEVER, REFUSED TO
NEGOTIATE WITH THE PETITIONER, AND DECLINED TO ADMIT ANY OF ITS
EMPLOYEES TO MEMBERSHIP.  ALTHOUGH PETITIONER'S SERVICES HAD BEEN
SATISFACTORY, A & P, AT THE UNION'S INSTIGATION, CANCELLED ITS CONTRACT
WITH PETITIONER IN ACCORDANCE WITH THE OBLIGATIONS OF ITS CLOSEDSHOP
AGREEMENT WITH THE UNION.  LATER, THE PETITIONER OBTAINED A CONTRACT
WITH A DIFFERENT COMPANY, BUT AGAIN AT THE UNION'S INSTIGATION, AND
UPON THE CONSUMMATION OF A CLOSED-SHOP CONTRACT BY THAT COMPANY WITH
THE UNION, PETITIONER LOST THAT CONTRACT AND BUSINESS.  BECAUSE OF THE
UNION'S REFUSAL TO NEGOTIATE WITH THE PETITIONER AND TO ACCEPT
PETITIONER'S EMPLOYEES AS MEMBERS, THE PETITIONER WAS UNABLE TO OBTAIN
ANY FURTHER HAULING CONTRACTS IN PHILADELPHIA.  THE ELIMINATION OF THE
PETITIONER'S SERVICE DID NOT IN ANY MANNER AFFECT THE INTERSTATE
OPERATIONS OF A & P OR OTHER COMPANIES. 

THE PETITIONER THEN INSTITUTED THIS SUIT IN A FEDERAL DISTRICT COURT
AGAINST RESPONDENTS, THE UNION AND ITS REPRESENTATIVES, PRAYING FOR AN
INJUNCTION AND ASKING FOR TREBLE DAMAGES.  DEMURRERS TO THE COMPLAINT
WERE OVERRULED, THE CASE WAS TRIED, FINDINGS OF FACT WERE MADE, AND THE
DISTRICT COURT RENDERED A JUDGMENT FOR THE RESPONDENTS ON THE GROUND
THAT PETITIONER HAD FAILED TO PROVE A CAUSE OF ACTION UNDER THE ANTI
TRUST LAWS.  47 F.SUPP.  571.  THE CIRCUIT COURT OF APPEALS AFFIRMED,
HOLDING THAT THE FACT THAT RESPONDENTS' ACTIONS HAD CAUSED PETITIONER
TO GO OUT OF BUSINESS WAS NOT SUCH A RESTRAINT OF INTERSTATE COMMERCE
AS WOULD BE ACTIONABLE UNDER THE SHERMAN AND CLAYTON ACTS.  143 F.2D
902.  WE GRANTED CERTIORARI BECAUSE OF THE QUESTIONS INVOLVED
CONCERNING THE RESPONSIBILITY OF LABOR UNIONS UNDER THE ANTI-TRUST
LAWS. 

THE "DESTRUCTION" OF PETITIONER'S BUSINESS RESULTED FROM THE FACT
THAT THE UNION MEMBERS, ACTING IN CONCERT, REFUSED TO ACCEPT EMPLOYMENT
WITH THE PETITIONER, AND REFUSED TO ADMIT TO THEIR ASSOCIATION ANYONE
WHO WORKED FOR PETITIONER.  THE PETITIONER'S LOSS OF BUSINESS IS
THEREFORE ANALOGOUS TO THE CASE OF A MANUFACTURER SELLING GOODS IN
INTERSTATE COMMERCE WHO FAILS IN BUSINESS BECAUSE UNION MEMBERS REFUSE
TO WORK FOR HIM.  HAD A GROUP OF PETITIONER'S BUSINESS COMPETITORS
CONSPIRED AND COMBINED TO SUPPRESS PETITIONER'S BUSINESS BY REFUSING TO
SELL GOODS AND SERVICES TO IT, SUCH A COMBINATION WOULD HAVE VIOLATED
THE SHERMAN ACT.  BINDERUP V. PATHE EXCHANGE, 263 U.S. 291, 312;
FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMMISSION, 312 U.S. 457. 
A LABOR UNION WHICH AIDED AND ABETTED SUCH A GROUP WOULD HAVE BEEN
EQUALLY GUILTY.  ALLEN BRADLEY CO. V. LOCAL UNION NO. 3, ANTE, P. 797. 
THE ONLY COMBINATION HERE, HOWEVER, WAS ONE OF WORKERS ALONE AND WHAT
THEY REFUSED TO SELL PETITIONER WAS THEIR LABOR. 

IT IS NOT A VIOLATION OF THE SHERMAN ACT FOR LABORERS IN COMBINATION
TO REFUSE TO WORK.  THEY CAN SELL OR NOT SELL THEIR LABOR AS THEY
PLEASE, AND UPON SUCH TERMS AND CONDITIONS AS THEY CHOOSE, WITHOUT
INFRINGING THE ANTI-TRUST LAWS.  APEX HOSIERY CO. V. LEADER, 310 U.S.
469, 502-503.  A WORKER IS PRIVILEGED UNDER CONGRESSIONAL ENACTMENTS,
ACTING EITHER ALONE OR IN CONCERT WITH HIS FELLOW WORKERS, TO ASSOCIATE
OR TO DECLINE TO ASSOCIATE WITH OTHER WORKERS, TO ACCEPT, REFUSE TO
ACCEPT, OR TO TERMINATE A RELATIONSHIP OF EMPLOYMENT, AND HIS LABOR IS
NOT TO BE TREATED AS "A COMMODITY OR ARTICLE OF COMMERCE."  CLAYTON
ACT, 38 STAT. 730, 731; NORRIS-LAGUARDIA ACT, 47 STAT. 70; SEE ALSO
AMERICAN STEEL FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S. 184, 209.  IT
WAS THE EXERCISE OF THESE RIGHTS THAT CREATED THE SITUATION WHICH
CAUSED THE PETITIONER TO LOSE ITS HAULING CONTRACTS AND ITS BUSINESS. 

IT IS ARGUED THAT THEIR EXERCISE FALLS WITHIN THE CONDEMNATION OF THE
SHERMAN ACT, BECAUSE THE UNION MEMBERS' REFUSAL TO ACCEPT EMPLOYMENT
WAS DUE TO PERSONAL ANTAGONISM AGAINST THE PETITIONER ARISING OUT OF
THE KILLING OF A UNION MAN.  BUT CONGRESS IN THE SHERMAN ACT AND THE
LEGISLATION WHICH FOLLOWED IT MANIFESTED NO PURPOSE TO MAKE ANY KIND OF
REFUSAL TO ACCEPT PERSONAL EMPLOYMENT A VIOLATION OF THE ANTI-TRUST
LAWS.  SUCH AN APPLICATION OF THOSE LAWS WOULD BE A COMPLETE DEPARTURE
FROM THEIR SPIRIT AND PURPOSE.  CF. APEX HOSIERY CO. V. LEADER, SUPRA,
512; ALLEN BRADLEY V. LOCAL UNION NO. 3, SUPRA.  MOREOVER "SO LONG AS A
UNION ACTS IN ITS SELF-INTEREST AND DOES NOT COMBINE WITH NON-LABOR
GROUPS, THE LICIT AND THE ILLICIT UNDER SEC. 20 ARE NOT TO BE
DISTINGUISHED BY ANY JUDGMENT REGARDING THE WISDOM OR UNWISDOM, THE
RIGHTNESS OR WRONGNESS, THE SELFISHNESS OR UNSELFISHNESS OF THE END OF
WHICH THE PARTICULAR UNION ACTIVITIES ARE THE MEANS."  UNITED STATES V.
HUTCHESON, 312 U.S. 219, 232.  FN1 

IT IS FURTHER ARGUED THAT THE CONCERTED REFUSAL OF UNION MEMBERS TO
WORK FOR PETITIONER MUST BE HELD TO VIOLATE THE SHERMAN ACT BECAUSE
PETITIONER'S BUSINESS WAS "AN INSTRUMENTALITY OF INTERSTATE COMMERCE." 
SEE UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290, 312. 
ACCEPTANCE OF THIS CONTENTION WOULD IMPLY THAT WORKERS DO NOT POSSESS
THE SAME PRIVILEGES TO CHOOSE OR REJECT EMPLOYMENT WITH INTERSTATE
CARRIERS AS WITH OTHER BUSINESSES.  THE ENTIRE HISTORY OF CONGRESSIONAL
LEGISLATION, INCLUDING THE RAILWAY LABOR ACT, 48 STAT. 1185, BELIES
THIS ARGUMENT. 

FINALLY, IT IS FAINTLY SUGGESTED THAT OUR DECISIONS IN STEELE V. L. &
N.R. CO., 323 U.S. 192; TUNSTALL V. BROTHERHOOD, 323 U.S. 210, AND
WALLACE CORP. V. LABOR BOARD, 323 U.S. 248, REQUIRE THAT WE HOLD THAT
RESPONDENTS' CONDUCT VIOLATED THE SHERMAN ACT.  THOSE CASES STAND FOR
THE PRINCIPLE THAT A BARGAINING AGENT OWES A DUTY NOT TO DISCRIMINATE
UNFAIRLY AGAINST ANY OF THE GROUP IT PURPORTS TO REPRESENT.  BUT IF THE
RECORD SHOWED DISCRIMINATION AGAINST EMPLOYEES HERE, IT WOULD NOT EVEN
TEND TO SHOW A VIOLATION OF THE SHERMAN ACT.  CONGRESS HAS INDICATED NO
PURPOSE TO MAKE A UNION'S BREACH OF DUTY TO EMPLOYEES IN A COLLECTIVE
BARGAINING GROUP AN INFRACTION OF THE SHERMAN ACT. 

THE CONTROVERSY IN THE INSTANT CASE, BETWEEN A UNION AND AN EMPLOYER,
INVOLVES NOTHING MORE THAN A DISPUTE OVER EMPLOYMENT, AND THE
WITHHOLDING OF LABOR SERVICES.  IT CANNOT THEREFORE BE SAID TO VIOLATE
THE SHERMAN ACT, AS AMENDED.  THAT ACT DOES NOT PURPORT TO AFFORD
REMEDIES FOR ALL TORTS COMMITTED BY OR AGAINST PERSONS ENGAGED IN
INTERSTATE COMMERCE.  "THE MAINTENANCE IN OUR FEDERAL SYSTEM OF A
PROPER DISTRIBUTION BETWEEN STATE AND NATIONAL GOVERNMENTS OF POLICE
AUTHORITY AND OF REMEDIES PRIVATE AND PUBLIC FOR PUBLIC WRONGS IS OF
FAR-REACHING IMPORTANCE.  AN INTENTION TO DISTURB THE BALANCE IS NOT
LIGHTLY TO BE IMPUTED TO CONGRESS."  APEX HOSIERY CO. V. LEADER, 310
U.S. 469, 513.  WHETHER THE RESPONDENTS' CONDUCT AMOUNTS TO AN
ACTIONABLE WRONG SUBJECTING THEM TO LIABILITY FOR DAMAGES UNDER
PENNSYLVANIA LAW IS NOT OUR CONCERN.  AFFIRMED. 

FN1  DORCHY V. KANSAS, 272 U.S. 306, 311, CITED HERE IN DISSENT, HAS
NO RELEVANCY TO THE ISSUES BEFORE US.  IN THAT CASE DORCHY WAS
CONVICTED OF CALLING A STRIKE TO ENFORCE A STALE CLAIM CONTRARY TO
STATE LAW.  HE ATTACKED THE STATE LAW ON THE GROUND THAT THE RIGHT TO
STRIKE WAS GUARANTEED BY THE FOURTEENTH AMENDMENT.  THIS COURT REJECTED
DORCHY'S CONSTITUTIONAL CONTENTION WITH THE STATEMENT THAT "NEITHER THE
COMMON LAW, NOR THE FOURTEENTH AMENDMENT, CONFERS THE ABSOLUTE RIGHT TO
STRIKE."  THE COURT HAD NO REASON IN THE DORCHY CASE TO CONSIDER THE
CLAYTON ACT, WHICH AS WE DECIDED IN THE HUTCHESON CASE DOES RECOGNIZE
AN ABSOLUTE RIGHT OF EMPLOYEES TO WORK OR CEASE WORKING ACCORDING TO
THEIR OWN JUDGMENTS.  THAT WHICH CONGRESS HAS RECOGNIZED AS LAWFUL,
THIS COURT HAS NO CONSTITUTIONAL POWER TO DECLARE UNLAWFUL, BY ARGUING
THAT CONGRESS HAS ACCORDED TOO MUCH POWER TO LABOR ORGANIZATIONS. 

MR. JUSTICE ROBERTS. 

I THINK THE JUDGMENT SHOULD BE REVERSED. 

THE ISSUE PRESENTED IN THIS CASE, IN MY JUDGMENT, LIES WHOLLY OUTSIDE
AND BEYOND ANY PRECEDENT TO BE FOUND IN THE DECISIONS OF THIS COURT,
AND CERTAINLY SO AS TO APEX HOSIERY CO. V. LEADER, 310 U.S. 469, ON
WHICH THE COURT RELIES. 

THERE WAS A LABOR DISPUTE AS TO UNIONIZATION BETWEEN MOTOR CARRIERS
AND THE UNION REPRESENTING EMPLOYES.  THE RECORD DEMONSTRATES THAT THE
DISPUTE INVOLVED IN THIS CASE WAS NO PART OF THAT LABOR DISPUTE BUT AN
OFF-SHOOT OF IT; NOT INVOLVING WAGES, UNIONIZATION, CLOSED SHOP, HOURS
OR OTHER CONDITIONS OF WORK. 

THE UNION, IN AN EFFORT TO ORGANIZE THE EMPLOYES OF MOTOR CARRIERS,
RESORTED TO A STRIKE.  THE PETITIONERS RESISTED UNIONIZATION.  DURING
THE ENSUING DISORDER A MAN WAS SHOT.  THE UNION OFFICIALS ATTRIBUTED
THE KILLING TO ONE OF THE PETITIONERS.  IN FACT HE WAS ACQUITTED BY A
JURY.  THE RESPONDENTS DECIDED TO PUNISH HIM.  THE RESPONDENTS HAVING
SUCCEEDED IN UNIONIZING THE INDUSTRY IN PHILADELPHIA THE PETITIONERS
COULD CONTINUE IN THEIR BUSINESS OF INTERSTATE CARRIAGE ONLY BY HAVING
THEIR MEN JOIN THE UNION AND BY SIGNING A CLOSED-SHOP CONTRACT.  THE
UNION DETERMINED TO PUNISH PETITIONERS BY REFUSING TO SIGN A CONTRACT
WITH THEM AND BY FORBIDDING THE MEMBERS OF THE UNION TO WORK FOR THEM. 
THERE IS NO SUGGESTION IN THE RECORD THAT THEY DID SO BECAUSE OF ANY
LABOR CONDITIONS OR CONSIDERATIONS, OR THAT PETITIONERS' MEN WOULD NOT
JOIN THE UNION, OR THAT UNION MEN WOULD NOT WORK WITH THEM, IF THEY DID
JOIN.  IT IS HARDLY AN ACCURATE DESCRIPTION OF THEIR ATTITUDE TO SAY
THAT THE UNION MEN DECIDED NOT TO SELL THEIR LABOR TO THE PETITIONERS. 
THEY INTENDED TO DRIVE PETITIONERS OUT OF BUSINESS AS INTERSTATE MOTOR
CARRIERS, AND THEY SUCCEEDED IN SO DOING. 

THE PETITIONERS, FOR FOURTEEN YEARS, HAD BEEN CARRIERS OF MERCHANDISE
IN INTERSTATE COMMERCE.  THE UNION COMPELLED A. & P., THEIR PRINCIPAL
PATRON, TO BREAK ITS CONTRACT WITH THEM AND TO DISCHARGE THEM FROM
FURTHER SERVING IT.  THE UNION FRUSTRATED EFFORTS OF PETITIONERS TO
OBTAIN CONTRACTS WITH OTHER SHIPPERS. 

THE PETITIONERS HAD BEEN, AND WERE AT THE TIME, IN COMPETITION WITH
OTHER SIMILAR INTERSTATE CARRIERS.  THE SOLE PURPOSE OF THE RESPONDENTS
WAS TO DRIVE PETITIONERS OUT OF BUSINESS IN THAT FIELD.  THIS THEY
ACCOMPLISHED.  THUS THEY REDUCED COMPETITION BETWEEN INTERSTATE
CARRIERS BY ELIMINATING ONE COMPETITOR FROM THE FIELD.  THE CONSPIRACY,
THEREFORE, WAS CLEARLY WITHIN THE DENUNCIATION OF THE SHERMAN ACT, AS
ONE INTENDED, AND EFFECTIVE, TO LESSEN COMPETITION IN COMMERCE, AND NOT
WITHIN ANY IMMUNITY CONFERRED BY THE CLAYTON ACT. 

THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON
JOIN IN THIS OPINION. 

MR. JUSTICE JACKSON, DISSENTING. 

THE COURT CONCEDES THAT IF BUSINESS COMPETITORS ALONE OR IN
COMBINATION WITH LABOR HAD CONSPIRED TO DRIVE PETITIONERS OUT OF
BUSINESS BY REFUSING GOODS OR SERVICES, COMPETITORS AND LABOR
ORGANIZATION WOULD HAVE VIOLATED THE SHERMAN ACT.  THE ONLY QUESTION
THEN IS WHETHER RESPONDENT IS EXEMPTED FROM THE PROHIBITION OF THE
ACT.  IT IS HARD TO SEE HOW THIS UNION IS EXCUSED FROM THE TERMS OF THE
ACT WHEN IN THE ALLEN BRADLEY CASE WE HOLD THAT LABOR UNIONS EVEN
THOUGH FURTHERING THEIR MEMBERS' INTERESTS AS WAGE EARNERS VIOLATE THE
ACT WHEN THEY COMBINE WITH BUSINESS TO DO THE THINGS PROHIBITED BY THE
ACT.  THERE, TOO, LABOR PERFORMED ITS PART OF THE CONSPIRACY BY DENYING
OR THREATENING TO DENY LABOR TO EMPLOYERS.  BUT IN THAT CASE WE HOLD
THAT NO ABSOLUTE IMMUNITY IS GRANTED BY THE STATUTE, AND THAT BECAUSE
OF ITS PURPOSE AND ITS ASSOCIATION, THE LABOR UNION VIOLATED THE ACT. 
HERE TOO THE PURPOSE OF THE RESPONDENT UNION IS SUCH AS TO REMOVE THE
UNION'S ACTIVITIES FROM THE PROTECTION OF THE CLAYTON AND NORRIS
LAGUARDIA ACTS.    WE SAY IN THE ALLEN BRADLEY CASE THAT, SINCE A LABOR
DISPUTE EXISTED, THE REFUSAL OF THE UNION TO WORK WOULD NOT HAVE
VIOLATED THE SHERMAN ACT IF IT HAD ACTED ALONE.  IN THAT CASE, THE
COURT REVIEWS FULLY THE CONFLICTING POLICIES EXPRESSED IN THOSE ACTS
INTENDED TO PRESERVE COMPETITION AND IN THOSE WHICH PERMIT LABOR
ORGANIZATIONS TO PURSUE THEIR OBJECTIVES.  THOSE STATUTES WHICH
RESTRICTED THE APPLICATION OF THE SHERMAN ACT AGAINST UNIONS WERE
INTENDED ONLY TO SHIELD THE LEGITIMATE OBJECTIVES OF SUCH
ORGANIZATIONS, NOT TO GIVE THEM A SWORD TO USE WITH UNLIMITED
IMMUNITY.  THE SOCIAL INTEREST IN ALLOWING WORKERS TO BETTER THEIR
CONDITION BY THEIR COMBINED BARGAINING POWER WAS THOUGHT TO OUTWEIGH
THE OTHERWISE UNDESIRABLE RESTRICTION ON COMPETITION WHICH ALL
SUCCESSFUL UNION ACTIVITY NECESSARILY ENTAILS.  BUT THERE IS NO SOCIAL
INTEREST SERVED BY UNION ACTIVITIES WHICH ARE DIRECTED NOT TO THE
ADVANTAGE OF UNION MEMBERS BUT MERELY TO CAPRICIOUS AND RETALIATORY
MISUSE OF THE POWER WHICH UNIONS HAVE SIMPLY TO IMPOSE THEIR WILL ON AN
EMPLOYER. 

THE APEX CASE IS AUTHORITY ONLY FOR THE PRINCIPLE THAT A LABOR
ORGANIZATION WHICH EMPLOYS ITS POWER FOR RECOGNIZED PURPOSES DOES NOT
VIOLATE THE SHERMAN ACT, UNLESS ITS PURPOSE IS TO AFFECT AND IT DOES
AFFECT COMPETITION IN THE MARKETING OF GOODS AND SERVICES.  THAT CASE
SAYS NOTHING OF THE DIRECT DESTRUCTION OF COMPETITION IN INTERSTATE
COMMERCE, AS AN END IN ITSELF, WHICH THE RESPONDENT UNION HERE
EFFECTUATED.  IT EXPLICITLY DECLARES THAT TO SOME EXTENT LABOR UNIONS
ARE SUBJECT TO THE SHERMAN ACT.  APEX HOSIERY CO. V. LEADER, 310 U.S.
469, 489.  MUCH OF WHAT WE SAID IN AMERICAN MEDICAL ASSN. V. UNITED
STATES, 317 U.S. 519, IS APPLICABLE HERE, ALTHOUGH THAT CASE DID NOT
INVOLVE A LABOR UNION:  "THE PETITIONERS DID NOT REPRESENT PRESENT OR
PROSPECTIVE EMPLOYES.  THEIR PURPOSE WAS TO PREVENT ANYONE FROM TAKING
EMPLOYMENT UNDER GROUP HEALTH.  THEY WERE INTERESTED IN THE TERMS AND
CONDITIONS OF THE EMPLOYMENT ONLY IN THE SENSE THAT THEY DESIRED WHOLLY
TO PREVENT GROUP HEALTH FROM FUNCTIONING BY HAVING ANY EMPLOYES.  THEIR
OBJECTION WAS TO ITS METHOD OF DOING BUSINESS.  OBVIOUSLY THERE WAS NO
DISPUTE BETWEEN GROUP HEALTH AND THE DOCTORS IT EMPLOYED OR MIGHT
EMPLOY IN WHICH PETITIONERS WERE EITHER DIRECTLY OR INDIRECTLY
INTERESTED."  AND IN THAT CASE, WE HELD THE CLAYTON AND NORRIS
LAGUARDIA ACTS INAPPLICABLE AND SUSTAINED CONVICTIONS UNDER THE SHERMAN
ACT.  IT CAN HARDLY BE SAID THAT MERELY BECAUSE RESPONDENT IS A LABOR
UNION, FOR THAT REASON ALONE A LABOR DISPUTE IS INVOLVED IN THE PRESENT
CASE. 

RESPONDENTS CONTEND THAT, IN ANY EVENT, THEIR CONDUCT IS NOT
PROHIBITED BY THE SHERMAN ACT BECAUSE PRICES WITHIN THE FIELD WERE NOT
AFFECTED AND THE PUBLIC DID NOT SUFFER.  APPALACHIAN COALS V. UNITED
STATES, 288 U.S. 344, AND SIMILAR CASES REFUSING TO APPLY THE SHERMAN
ACT HELD THAT CERTAIN PRACTICES WERE PERMISSIBLE BECAUSE THEY DID NOT
RESTRAIN COMPETITION IN THE INDUSTRY AS A WHOLE, ALTHOUGH THEY DID
RESTRAIN COMPETITION AMONG THE PARTIES TO THE AGREEMENT.  BUT THERE IS
A DIFFERENCE BETWEEN BEING A PARTY TO CONSENSUAL RESTRICTION OF
COMPETITION WITHIN A SEGMENT OF AN INDUSTRY AND BEING FORCED OUT OF THE
INDUSTRY ENTIRELY.  COMPETITION WITHIN THE FIELD HAS BEEN LESSENED BY
THE ELIMINATION OF ONE OF THE COMPANIES ENGAGED THEREIN.  OF COURSE IT
CANNOT BE SAID ON THIS RECORD THAT THE DESTRUCTION OF PETITIONER'S
BUSINESS SUBSTANTIALLY AFFECTED MARKET CONDITIONS IN THE SERVICES WHICH
PETITIONER WAS ENGAGED IN RENDERING.  CF. APEX HOSIERY CO. V. LEADER,
SUPRA, AT 512.  BUT, EVEN ASSUMING THAT SUCH AN EFFECT IS NECESSARY,
THE COURT DOES NOT DISTINGUISH BETWEEN THE SITUATION PRESENTED IN THIS
CASE AND A CASE IN WHICH A UNION BY SIMILAR METHODS AND WITH SIMILAR
MOTIVES WOULD DRIVE OUT OF BUSINESS A COMPANY WHOSE DEMISE WOULD AFFECT
PRICES IN THE FIELD. 

WITH THIS DECISION, THE LABOR MOVEMENT HAS COME FULL CIRCLE.  THE
WORKING MAN HAS STRUGGLED LONG, THE FIGHT HAS BEEN FILLED WITH HATRED,
AND CONFLICT HAS BEEN DANGEROUS, BUT NOW WORKERS MAY NOT BE DEPRIVED OF
THEIR LIVELIHOOD MERELY BECAUSE THEIR EMPLOYERS OPPOSE AND THEY FAVOR
UNIONS.  LABOR HAS WON OTHER RIGHTS AS WELL, UNEMPLOYMENT COMPENSATION,
OLD-AGE BENEFITS AND, WHAT IS MOST IMPORTANT AND THE BASIS OF ALL ITS
GAINS, THE RECOGNITION THAT THE OPPORTUNITY TO EARN HIS SUPPORT IS NOT
ALONE THE CONCERN OF THE INDIVIDUAL BUT IS THE PROBLEM WHICH ALL
ORGANIZED SOCIETIES MUST CONTEND WITH AND CONQUER IF THEY ARE TO
SURVIVE.  THIS COURT NOW SUSTAINS THE CLAIM OF A UNION TO THE RIGHT TO
DENY PARTICIPATION IN THE ECONOMIC WORLD TO AN EMPLOYER SIMPLY BECAUSE
THE UNION DISLIKES HIM.  THIS COURT PERMITS TO EMPLOYEES THE SAME
ARBITRARY DOMINANCE OVER THE ECONOMIC SPHERE WHICH THEY CONTROL THAT
LABOR SO LONG, SO BITTERLY AND SO RIGHTLY ASSERTED SHOULD BELONG TO NO
MAN. 

STRIKES AIMED AT COMPELLING THE EMPLOYER TO YIELD TO UNION DEMANDS
ARE NOT WITHIN THE SHERMAN ACT.  HERE THE EMPLOYER HAS YIELDED, AND THE
UNION HAS ACHIEVED THE END TO WHICH ALL LEGITIMATE UNION PRESSURE IS
DIRECTED AND LIMITED.  THE UNION CANNOT CONSISTENTLY WITH THE SHERMAN
ACT REFUSE TO ENJOY THE FRUITS OF ITS VICTORY AND DENY PEACE TERMS TO
AN EMPLOYER WHO HAS UNCONDITIONALLY SURRENDERED. 

MR. JUSTICE BRANDEIS, FOR A UNANIMOUS COURT, HELD THAT A UNION CANNOT
LAWFULLY STRIKE FOR AN UNLAWFUL PURPOSE.  "THE RIGHT TO CARRY ON
BUSINESS - BE IT CALLED LIBERTY OR PROPERTY - HAS VALUE.  TO INTERFERE
WITH THIS RIGHT WITHOUT JUST CAUSE IS UNLAWFUL.  THE FACT THAT THE
INJURY WAS INFLICTED BY A STRIKE IS SOMETIMES A JUSTIFICATION.  BUT A
STRIKE MAY BE ILLEGAL BECAUSE OF ITS PURPOSE, HOWEVER ORDERLY THE
MANNER IN WHICH IT IS CONDUCTED.  TO COLLECT A STALE CLAIM DUE TO A
FELLOW MEMBER OF THE UNION WHO WAS FORMERLY EMPLOYED IN THE BUSINESS IS
NOT A PERMISSIBLE PURPOSE."  DORCHY V. KANSAS, 272 U.S. 306, 311.  NO
MORE PERMISSIBLE IS AN EXACTION OF PRIVATELY-DETERMINED PUNISHMENT FOR
ALLEGED MURDER.  AND BEING UNLAWFUL, UNION ACTIVITIES OF THIS KIND ARE
NOT PROTECTED BY THE CLAYTON AND NORRIS-LAGUARDIA ACTS. 

THE CHIEF JUSTICE AND MR. JUSTICE FRANKFURTER JOIN IN THIS OPINION. 
IN THIS OPINION. 
..END :
























ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1 


ARGUED DECEMBER 5, 6, 1944.  - DECIDED JUNE 18, 1945.  - 52 F.SUPP. 
362, AFFIRMED. 


BY-LAWS OF THE ASSOCIATED PRESS, A COOPERATIVE ASSOCIATION ENGAGED IN
GATHERING AND DISTRIBUTING NEWS IN INTERSTATE AND FOREIGN COMMERCE,
PROHIBITED SERVICE OF AP NEWS TO NON-MEMBERS, PROHIBITED MEMBERS FROM
FURNISHING SPONTANEOUS NEWS TO NON-MEMBERS, AND EMPOWERED MEMBERS TO
BLOCK MEMBERSHIP APPLICATIONS OF COMPETITORS.  A CONTRACT BETWEEN AP
AND A CANADIAN PRESS ASSOCIATION OBLIGATED BOTH TO FURNISH NEWS
EXCLUSIVELY TO EACH OTHER.  CHARGING INTER ALIA THAT THE BY-LAWS AND
THE CONTRACT VIOLATED THE SHERMAN ANTITRUST ACT, THE GOVERNMENT SOUGHT
AN INJUNCTION AGAINST AP AND MEMBER PUBLISHERS.  UPON THE GOVERNMENT'S
MOTION, THE DISTRICT COURT RENDERED SUMMARY JUDGMENT.  HELD: 

1.  THE BY-LAWS AND THE CONTRACT, TOGETHER WITH THE ADMITTED FACTS,
JUSTIFIED SUMMARY JUDGMENT.  RULE 56 OF THE RULES OF CIVIL PROCEDURE. 
P. 5. 

2.  PUBLISHERS CHARGED WITH VIOLATING THE SHERMAN ACT ARE SUBJECT, NO
LESS THAN OTHERS, TO THE SUMMARY JUDGMENT PROCEDURE.  P. 7. 

3.  THE BY-LAWS ON THEIR FACE CONSTITUTE RESTRAINTS OF TRADE AND
VIOLATE THE SHERMAN ACT.  P. 12. 

(A)  THAT AP HAD NOT ACHIEVED A COMPLETE MONOPOLY IS IRRELEVANT.  P.
12. 

(B)  TRADE IN NEWS CARRIED ON AMONG THE STATES IS INTERSTATE
COMMERCE.  P. 14. 

(C)  THE FACT THAT AP'S ACTIVITIES ARE COOPERATIVE DOES NOT RENDER
THE SHERMAN ACT INAPPLICABLE.  P. 14. 

(D)  ALTHOUGH TRUE IN A GENERAL SENSE THAT AN OWNER OF PROPERTY MAY
DISPOSE OF IT AS HE PLEASES, HE CAN NOT GO BEYOND THE EXERCISE OF THAT
RIGHT AND, BY CONTRACTS OR COMBINATIONS, EXPRESS OR IMPLIED, UNDULY
HINDER OR OBSTRUCT THE FREE FLOW OF INTERSTATE COMMERCE.  P. 15. 

(E)  THE FACT THAT THERE ARE OTHER NEWS AGENCIES WHICH SELL NEWS, AND
THAT AP'S REPORTS ARE NOT "INDISPENSABLE," CAN GIVE AP'S RESTRICTIVE BY
LAWS NO EXEMPTION UNDER THE SHERMAN ACT.  P. 17. 

(F)  THE RESULT HERE DOES NOT INVOLVE AN APPLICATION OF THE "PUBLIC
UTILITY" CONCEPT TO THE NEWSPAPER BUSINESS.  P. 19. 

(G)  ARRANGEMENTS OR COMBINATIONS DESIGNED TO STIFLE COMPETITION CAN
NOT BE IMMUNIZED THROUGH A MEMBERSHIP DEVICE WHICH WOULD ACCOMPLISH
THAT PURPOSE.  P. 19. 

(H)  APPLICATION OF THE SHERMAN ACT TO A COMBINATION OF PUBLISHERS TO
RESTRAIN TRADE IN NEWS DOES NOT ABRIDGE THE FREEDOM OF THE PRESS
GUARANTEED BY THE FIRST AMENDMENT.  PP. 19-20. 

4.  THE DECREE OF THE DISTRICT COURT, INTERPRETED AS MEANING THAT AP
NEWS IS TO BE FURNISHED TO COMPETITORS OF MEMBERS WITHOUT
DISCRIMINATION THROUGH BY-LAWS CONTROLLING MEMBERSHIP OR OTHERWISE, IS
NOT VAGUE AND INDEFINITE AND IS APPROVED.  P. 21. 

5.  THE DISTRICT COURT DID NOT ERR IN REFUSING TO HOLD AS A VIOLATION
OF THE SHERMAN ACT STANDING ALONE (1) THE BY-LAWS PROVISION FORBIDDING
SERVICE OF AP NEWS TO NON-MEMBERS, (2) THE BY-LAWS PROVISION FORBIDDING
AP MEMBERS FROM FURNISHING SPONTANEOUS NEWS TO NON-MEMBERS, OR (3) THE
CANADIAN PRESS CONTRACT; AND THE COURT WAS JUSTIFIED IN ENJOINING THEIR
OBSERVANCE TEMPORARILY, PENDING AP'S ABANDONMENT OF THE BY-LAWS
PROVISION EMPOWERING MEMBERS TO BLOCK MEMBERSHIP APPLICATIONS OF
COMPETITORS.  P. 21. 

6.  THE FASHIONING OF A DECREE IN AN ANTITRUST CASE, TO PREVENT
FUTURE VIOLATIONS AND ERADICATE EXISTING EVILS, RESTS LARGELY IN THE
DISCRETION OF THE TRIAL COURT.  P. 22. 

7.  THE CASE HAVING BEEN PRESENTED ON THE NARROW ISSUES ARISING OUT
OF UNDISPUTED FACTS, IT CAN NOT BE SAID THAT THE DISTRICT COURT'S
DECREE SHOULD HAVE BEEN BROADER; AND, IF THE DECREE IN ITS PRESENT FORM
SHOULD PROVE INADEQUATE TO PREVENT FURTHER DISCRIMINATORY TRADE
RESTRAINTS AGAINST NON-MEMBER NEWSPAPERS, THE DISTRICT COURT'S
RETENTION OF JURISDICTION OF THE CAUSE WILL ENABLE IT TO TAKE
APPROPRIATE ACTION.  P. 22. 

ASSOCIATED PRESS ET AL. V. UNITED STATES. 

NO. 57.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK* . 

*TOGETHER WITH NO. 58, TRIBUNE COMPANY ET AL. V. UNITED STATES, AND
NO. 59, UNITED STATES V. ASSOCIATED PRESS ET AL., ALSO ON APPEALS FROM
THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK. 

APPEALS FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES IN A SUIT
BY THE UNITED STATES TO ENJOIN ALLEGED VIOLATIONS OF THE SHERMAN ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT* . 

*IN NUMBER 59, ALL THE SITTING JUSTICES CONCUR.  IN NUMBERS 57 AND
58, MR. JUSTICE REED, MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE
CONCUR.  MR. JUSTICE FRANKFURTER CONCURS IN THAT PART OF THE OPINION
WHICH DISCUSSES THE DISTRICT COURT'S DECREE BUT CONCURS IN THE JUDGMENT
OF AFFIRMANCE IN A SEPARATE OPINION. 

THE PUBLISHERS OF MORE THAN 1,200 NEWSPAPERS ARE MEMBERS OF THE
ASSOCIATED PRESS (AP), A COOPERATIVE ASSOCIATION INCORPORATED UNDER THE
MEMBERSHIP CORPORATION LAW OF THE STATE OF NEW YORK.  ITS BUSINESS IS
THE COLLECTION, ASSEMBLY AND DISTRIBUTION OF NEWS.  THE NEWS IT
DISTRIBUTES IS ORIGINALLY OBTAINED BY DIRECT EMPLOYEES OF THE
ASSOCIATION, EMPLOYEES OF THE MEMBER NEWSPAPERS, AND THE EMPLOYEES OF
FOREIGN INDEPENDENT NEWS AGENCIES WITH WHICH AP HAS CONTRACTUAL
RELATIONS, SUCH AS THE CANADIAN PRESS.  DISTRIBUTION OF THE NEWS IS
MADE THROUGH INTERSTATE CHANNELS OF COMMUNICATION TO THE VARIOUS
NEWSPAPER MEMBERS OF THE ASSOCIATION, WHO PAY FOR IT UNDER AN
ASSESSMENT PLAN WHICH CONTEMPLATES NO PROFIT TO AP. 

THE UNITED STATES FILED A BILL IN A FEDERAL DISTRICT COURT FOR AN
INJUNCTION AGAINST AP AND OTHER DEFENDANTS CHARGING THAT THEY HAD
VIOLATED THE SHERMAN ANTI-TRUST ACT, 26 STAT. 209, IN THAT THEIR ACTS
AND CONDUCT CONSTITUTED (1) A COMBINATION AND CONSPIRACY IN RESTRAINT
OF TRADE AND COMMERCE IN NEWS AMONG THE STATES, AND (2) AN ATTEMPT TO
MONOPOLIZE A PART OF THAT TRADE. 

THE HEART OF THE GOVERNMENT'S CHARGE WAS THAT APPELLANTS HAD BY
CONCERTED ACTION SET UP A SYSTEM OF BY-LAWS WHICH PROHIBITED ALL AP
MEMBERS FROM SELLING NEWS TO NON-MEMBERS, AND WHICH GRANTED EACH MEMBER
POWERS TO BLOCK ITS NON-MEMBER COMPETITORS FROM MEMBERSHIP.  THESE BY
LAWS, TO WHICH ALL AP MEMBERS HAD ASSENTED, WERE, IN THE CONTEXT OF THE
ADMITTED FACTS, CHARGED TO BE IN VIOLATION OF THE SHERMAN ACT.  A
FURTHER CHARGE RELATED TO A CONTRACT BETWEEN AP AND CANADIAN PRESS (A
NEWS AGENCY OF CANADA, SIMILAR TO AP), UNDER WHICH THE CANADIAN AGENCY
AND AP OBLIGATED THEMSELVES TO FURNISH NEWS EXCLUSIVELY TO EACH OTHER. 
THE DISTRICT COURT, COMPOSED OF THREE JUDGES, HELD THAT THE BY-LAWS
UNLAWFULLY RESTRICTED ADMISSION TO AP MEMBERSHIP, AND VIOLATED THE
SHERMAN ACT INSOFAR AS THE BY-LAWS' PROVISIONS CLOTHED A MEMBER WITH
POWERS TO IMPOSE OR DISPENSE WITH CONDITIONS UPON THE ADMISSION OF HIS
BUSINESS COMPETITOR.  CONTINUED OBSERVANCE OF THESE BY-LAWS WAS
ENJOINED.  THE COURT FURTHER HELD THAT THE CANADIAN CONTRACT WAS AN
INTEGRAL PART OF THE RESTRICTIVE MEMBERSHIP CONDITIONS, AND ENJOINED
ITS OBSERVANCE PENDING ABANDONMENT OF THE MEMBERSHIP RESTRICTIONS.  THE
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT, UNDER RULE 56 OF THE RULES OF
CIVIL PROCEDURE,  FN1  WAS GRANTED AND ITS PRAYER FOR RELIEF WAS
GRANTED IN PART AND DENIED IN PART.  52 F.SUPP.  362.  BOTH SIDES HAVE
BROUGHT THE CASE TO US ON DIRECT APPEAL.  15 U.S.C., SEC. 29; 28
U.S.C., SEC. 345. 

AT THIS POINT, IT SEEMS ADVISABLE TO PASS UPON THE CONTENTION OF THE
APPELLANTS THAT THERE WERE GENUINE DISPUTES AS TO MATERIAL FACTS AND
THAT THE CASE THEREFORE SHOULD HAVE GONE TO TRIAL.  THE ONLY
ASSIGNMENTS OF ERROR MADE BY THE APPELLANTS IN NO. 57(ASSOCIATED PRESS
ET AL. V. UNITED STATES) RELATING TO THIS QUESTION ARE THAT THE COURT
ERRED "IN HOLDING THAT THERE WAS NO GENUINE ISSUE BETWEEN THE PARTIES
AS TO ANY MATERIAL FACT" AND "IN NOT ENTERING SUMMARY JUDGMENT AGAINST
THE PLAINTIFF."  THIS LATTER ASSIGNMENT IS BASED ON THE PREMISE THAT
SUMMARY PROCEEDINGS WERE PROPERLY UTILIZED IN THE CASE.  THE APPELLANTS
IN NO. 58(TRIBUNE COMPANY ET AL. V. UNITED STATES) HAVE ONE ASSIGNMENT
OF ERROR TO THE EFFECT THAT "THE DEFENDANTS ARE ENTITLED TO A TRIAL OF
GENUINE ISSUES OF FACT UNMENTIONED IN THE FINDINGS OF THE COURT BUT
WHICH IF FOUND FOR THE DEFENDANTS WOULD RENDER THIS HOLDING
UNWARRANTED."  NONE OF THE APPELLANTS HAS POINTED TO ANY DISPUTED FACTS
ESSENTIAL TO A DETERMINATION OF THE VALIDITY OR INVALIDITY OF THE BY
LAWS AND THE CONTRACT.  ADMITTING THE EXISTENCE OF BOTH THE BY-LAWS AND
THE CONTRACT, THEIR ANSWERS AND THEIR AFFIDAVITS IN THE SUMMARY
PROCEEDINGS DEFENDED THE LEGALITY OF THE RESTRICTIVE ARRANGEMENTS, BUT
DID NOT IN ANY INSTANCE DENY THAT NON-MEMBERS OF AP WERE DENIED ACCESS
TO NEWS OF AP AND OF ALL OF ITS MEMBER PUBLISHERS BY REASON OF THE
CONCERTED ARRANGEMENTS BETWEEN THE APPELLANTS.  NOR WAS IT DENIED THAT
THE BY-LAWS GRANTED AP MEMBERS POWERS TO IMPOSE RESTRICTIVE CONDITIONS
UPON ADMISSION TO MEMBERSHIP OF NON-MEMBER COMPETITORS.  THE COURT
BELOW IN MAKING FINDINGS AND ENTERING JUDGMENT CAREFULLY ABSTAINED FROM
THE CONSIDERATION OF ANY EVIDENCE WHICH MIGHT POSSIBLY BE IN DISPUTE. 
WE AGREE THAT RULE 56 SHOULD BE CAUTIOUSLY INVOKED TO THE END THAT
PARTIES MAY ALWAYS BE AFFORDED A TRIAL WHERE THERE IS A BONA FIDE
DISPUTE OF FACTS BETWEEN THEM.  SARTOR V. ARKANSAS NATURAL GAS CORP.,
321 U.S. 620.  THERE WAS NO INJURY TO ANY OF THE APPELLANTS AS A RESULT
OF THE SUMMARY PROCEEDINGS SINCE, FOR REASONS TO BE INDICATED, THE
RESTRICTIVE ARRANGEMENTS, WHICH APPELLANTS ADMITTED, WERE SUFFICIENT TO
JUSTIFY SUMMARY ACTION BY THE COURT AT THAT STAGE OF THE CASE.  IN
REACHING OUR CONCLUSION ON THE SUMMARY JUDGMENT QUESTION, WE ARE NOT
UNMINDFUL OF THE ARGUMENT THAT NEWSPAPER PUBLISHERS CHARGED WITH
COMBINING COOPERATIVELY TO VIOLATE THE SHERMAN ACT ARE ENTITLED TO HAVE
A DIFFERENT AND MORE FAVORABLE KIND OF TRIAL PROCEDURE THAN ALL OTHER
PERSONS COVERED BY THE ACT.  NO LANGUAGE IN THE SHERMAN ACT OR THE
SUMMARY JUDGMENT STATUTE LENDS SUPPORT TO THE SUGGESTION.  THERE IS NO
SINGLE ELEMENT IN OUR TRADITIONAL INSISTENCE UPON AN EQUALLY FAIR TRIAL
FOR EVERY PERSON FROM WHICH ANY SUCH DISCRIMINATORY TRIAL PRACTICE
COULD STEM.  FOR EQUAL - NOT UNEQUAL - JUSTICE UNDER LAW IS THE GOAL OF
OUR SOCIETY.  OUR LEGAL SYSTEM HAS NOT ESTABLISHED DIFFERENT MEASURES
OF PROOF FOR THE TRIAL OF CASES IN WHICH EQUALLY INTELLIGENT AND
RESPONSIBLE DEFENDANTS ARE CHARGED WITH VIOLATING THE SAME STATUTES. 
MEMBER PUBLISHERS OF AP ARE ENGAGED IN BUSINESS FOR PROFIT EXACTLY AS
ARE OTHER BUSINESS MEN WHO SELL FOOD, STEEL, ALUMINUM, OR ANYTHING ELSE
PEOPLE NEED OR WANT.  SEE INTERNATIONAL NEWS SERVICE V. ASSOCIATED
PRESS, 248 U.S. 215, 229, 230.  ALL ARE ALIKE COVERED BY THE SHERMAN
ACT.  THE FACT THAT THE PUBLISHER HANDLES NEWS WHILE OTHERS HANDLE FOOD
DOES NOT, AS WE SHALL LATER POINT OUT, AFFORD THE PUBLISHER A PECULIAR
CONSTITUTIONAL SANCTUARY IN WHICH HE CAN WITH IMPUNITY VIOLATE LAWS
REGULATING HIS BUSINESS PRACTICES. 

NOR IS A PUBLISHER WHO ENGAGES IN BUSINESS PRACTICES MADE UNLAWFUL BY
THE SHERMAN ACT ENTITLED TO A PARTIAL IMMUNITY BY REASON OF THE "CLEAR
AND PRESENT DANGER" DOCTRINE WHICH COURTS HAVE USED TO PROTECT FREEDOM
TO SPEAK, TO PRINT, AND TO WORSHIP.  THAT DOCTRINE, AS RELATED TO THIS
CASE, PROVIDES PROTECTION FOR UTTERANCES THEMSELVES, SO THAT THE
PRINTED OR SPOKEN WORD MAY NOT BE THE SUBJECT OF PREVIOUS RESTRAINT OR
PUNISHMENT, UNLESS THEIR EXPRESSION CREATES A CLEAR AND PRESENT DANGER
OF BRINGING ABOUT A SUBSTANTIAL EVIL WHICH THE GOVERNMENT HAS POWER TO
PROHIBIT.  BRIDGES V. CALIFORNIA, 314 U.S. 252, 261.  FORMULATED AS IT
WAS TO PROTECT LIBERTY OF THOUGHT AND OF EXPRESSION, IT WOULD DEGRADE
THE CLEAR AND PRESENT DANGER DOCTRINE TO FASHION FROM IT A SHIELD FOR
BUSINESS PUBLISHERS WHO ENGAGE IN BUSINESS PRACTICES CONDEMNED BY THE
SHERMAN ACT.  CONSEQUENTLY, WE HOLD THAT PUBLISHERS, LIKE ALL OTHERS
CHARGED WITH VIOLATING THE SHERMAN ACT, ARE SUBJECT TO THE PROVISIONS
OF THE SUMMARY JUDGMENT STATUTE.  AND THAT MEANS THAT SUCH JUDGMENTS
SHALL NOT BE RENDERED AGAINST PUBLISHERS OR OTHERS WHERE THERE ARE
GENUINE DISPUTES OF FACT ON MATERIAL ISSUES.  ACCORDINGLY, WE TREAT THE
CAUSE AS DID THE COURT BELOW, AND WILL CONSIDER THE VALIDITY OF THE BY
LAWS AND THE CONTRACT EXCLUSIVELY ON THE BASIS OF THEIR TERMS AND THE
BACKGROUND OF FACTS WHICH THE APPELLANTS ADMITTED. 

TO PUT THE ISSUE INTO PROPER FOCUS, IT BECOMES NECESSARY AT THIS
JUNCTURE TO EXAMINE THE BY-LAWS. 

ALL MEMBERS MUST CONSENT TO BE BOUND BY THEM.  THEY IMPOSE UPON
MEMBERS CERTAIN DUTIES AND RESTRICTIONS IN THE CONDUCT OF THEIR
SEPARATE BUSINESSES.  FOR A VIOLATION OF THE BY-LAWS SEVERE
DISCIPLINARY ACTION MAY BE TAKEN BY THE ASSOCIATION.  THE BOARD OF
DIRECTORS MAY IMPOSE A FINE OF $1,000.00 OR SUSPEND A MEMBER AND SUCH
"ACTION  ...  SHALL BE FINAL AND CONCLUSIVE.  NO MEMBER SHALL HAVE ANY
RIGHT TO QUESTION THE SAME."  FN2  THE OFFENDING MEMBER MAY ALSO BE
EXPELLED BY THE MEMBERS OF THE CORPORATION FOR ANY REASON "WHICH IN ITS
ABSOLUTE DISCRETION IT SHALL DEEM OF SUCH A CHARACTER AS TO BE
PREJUDICIAL TO THE INTERESTS AND WELFARE OF THE CORPORATION AND ITS
MEMBERS, OR TO JUSTIFY SUCH EXPULSION.  THE ACTION OF THE REGULAR
MEMBERS OF THE CORPORATION IN SUCH REGARD SHALL BE FINAL AND THERE
SHALL BE NO RIGHT OF APPEAL AGAINST OR REVIEW OF SUCH ACTION." 

THESE BY-LAWS, FOR A VIOLATION OF WHICH MEMBERS MAY BE THUS FINED,
SUSPENDED, OR EXPELLED, REQUIRE THAT EACH NEWSPAPER MEMBER PUBLISH THE
AP NEWS REGULARLY IN WHOLE OR IN PART, AND THAT EACH SHALL "PROMPTLY
FURNISH TO THE CORPORATION, THROUGH ITS AGENTS OR EMPLOYEES, ALL THE
NEWS OF SUCH MEMBER'S DISTRICT, THE AREA OF WHICH SHALL BE DETERMINED
BY THE BOARD OF DIRECTORS."  FN3 ALL MEMBERS ARE PROHIBITED FROM
SELLING OR FURNISHING THEIR SPONTANEOUS NEWS TO ANY AGENCY OR PUBLISHER
EXCEPT TO AP.  OTHER BY-LAWS REQUIRE EACH NEWSPAPER MEMBER TO CONDUCT
HIS OR ITS BUSINESS IN SUCH MANNER THAT THE NEWS FURNISHED BY THE
CORPORATION SHALL NOT BE MADE AVAILABLE TO ANY NON-MEMBER IN ADVANCE OF
PUBLICATION.  THE JOINT EFFECT OF THESE BY-LAWS IS TO BLOCK ALL
NEWSPAPER NON-MEMBERS FROM ANY OPPORTUNITY TO BUY NEWS FROM AP OR ANY
OF ITS PUBLISHER MEMBERS.  ADMISSION TO MEMBERSHIP IN AP THEREBY
BECOMES A PREREQUISITE TO OBTAINING AP NEWS OR BUYING NEWS FROM ANY ONE
OF ITS MORE THAN TWELVE HUNDRED PUBLISHERS.  THE ERECTION OF OBSTACLES
TO THE ACQUISITION OF MEMBERSHIP CONSEQUENTLY CAN MAKE IT DIFFICULT, IF
NOT IMPOSSIBLE, FOR NON-MEMBERS TO GET ANY OF THE NEWS FURNISHED BY AP
OR ANY OF THE INDIVIDUAL MEMBERS OF THIS COMBINATION OF AMERICAN
NEWSPAPER PUBLISHERS.  FN4 

THE BY-LAWS PROVIDE A VERY SIMPLE AND NON-BURDEN-SOME ROAD FOR
ADMISSION OF A NON-COMPETING APPLICANT.  THE BOARD OF DIRECTORS IN SUCH
CASE CAN ELECT THE APPLICANT WITHOUT PAYMENT OF MONEY OR THE IMPOSITION
OF ANY OTHER ONEROUS TERMS.  IN STRIKING CONTRAST ARE THE BY-LAWS WHICH
GOVERN ADMISSION OF NEW MEMBERS WHO DO COMPETE.  HISTORICALLY, AS WELL
AS PRESENTLY, APPLICANTS WHO WOULD OFFER COMPETITION TO OLD MEMBERS
HAVE A HARD ROAD TO TRAVEL.  THIS APPEARS FROM THE FOLLOWING FACTS
FOUND BY THE DISTRICT COURT. 

AP ORIGINALLY FUNCTIONED AS AN ILLINOIS CORPORATION, AND AT THAT TIME
AN EXISTING MEMBER OF THE ASSOCIATION HAD AN ABSOLUTE VETO POWER OVER
THE APPLICATIONS OF A PUBLISHER WHO WAS OR WOULD BE IN COMPETITION WITH
THE OLD MEMBER.  THE SUPREME COURT OF ILLINOIS HELD THAT AP, THUS
OPERATED, WAS IN RESTRAINT OF TRADE.  INTER-OCEAN PUBLISHING CO. V.
ASSOCIATED PRESS, 184 ILL. 438, 56 N.E. 822.  AS A RESULT OF THIS
DECISION, THE PRESENT ASSOCIATION WAS ORGANIZED IN NEW YORK.  UNDER THE
NEW BY-LAWS, THE UNQUALIFIED VETO POWER OF THE ILLINOIS AP MEMBERS WAS
CHANGED INTO A "RIGHT OF PROTEST" WHICH, WHEN EXERCISED, PREVENTED THE
AP DIRECTORS FROM ELECTING THE APPLICANTS AS IN OTHER CASES.  THE OLD
MEMBER'S PROTEST AGAINST HIS COMPETITOR'S APPLICATION COULD THEN BE
OVERRULED ONLY BY THE AFFIRMATIVE VOTE OF FOUR-FIFTHS OF ALL THE
MEMBERS OF AP. 

IN 1931, THE BY-LAWS WERE AMENDED SO AS TO EXTEND THE RIGHT OF
PROTEST TO ALL WHO HAD BEEN MEMBERS FOR MORE THAN 5 YEARS AND UPON WHOM
NO RIGHT OF PROTEST HAD BEEN CONFERRED BY THE 1900 BY-LAWS.  IN 1942,
AFTER COMPLAINTS TO THE DEPARTMENT OF JUSTICE HAD BROUGHT ABOUT AN
INVESTIGATION, THE BY-LAWS WERE AGAIN AMENDED.  THESE BY-LAWS,
PRESENTLY INVOLVED, LEAVE THE BOARD OF DIRECTORS FREE TO ELECT NEW
MEMBERS UNLESS THE APPLICANT WOULD COMPETE WITH OLD MEMBERS, AND IN
THAT EVENT THE BOARD CANNOT ACT AT ALL IN THE ABSENCE OF CONSENT BY THE
APPLICANT'S MEMBER COMPETITOR.  SHOULD THE OLD MEMBER OBJECT TO
ADMISSION OF HIS COMPETITOR, THE APPLICATION MUST BE REFERRED TO A
REGULAR OR SPECIAL MEETING OF THE ASSOCIATION.  AS A PREREQUISITE TO
ELECTION, HE MUST (A) PAY TO THE ASSOCIATION 10% OF THE TOTAL AMOUNT OF
THE REGULAR ASSESSMENTS RECEIVED BY IT FROM OLD MEMBERS IN THE SAME
COMPETITIVE FIELD DURING THE ENTIRE PERIOD FROM OCTOBER 1, 1900 TO THE
FIRST DAY OF THE MONTH PRECEDING THE DATE OF THE ELECTION OF THE
APPLICANT,  FN5  (B) RELINQUISH ANY EXCLUSIVE RIGHTS THE APPLICANT MAY
HAVE TO ANY NEWS OR NEWS PICTURE SERVICES AND, WHEN REQUESTED TO DO SO
BY HIS MEMBER COMPETITOR IN THAT FIELD, MUST "REQUIRE THE SAID NEWS OR
NEWS PICTURE SERVICES, OR ANY OF THEM, TO BE FURNISHED TO SUCH MEMBER
OR MEMBERS, UPON THE SAME TERMS AS THEY ARE MADE AVAILABLE TO THE
APPLICANT," AND (C) RECEIVE A MAJORITY VOTE OF THE REGULAR MEMBERS WHO
VOTE IN PERSON OR BY PROXY.  THESE OBSTACLES TO MEMBERSHIP, AND TO THE
PURCHASE OF AP NEWS, ONLY EXISTED WHERE THERE WAS A COMPETING OLD
MEMBER IN THE SAME FIELD.    THE DISTRICT COURT FOUND THAT THE BY-LAWS
IN AND OF THEMSELVES WERE CONTRACTS IN RESTRAINT OF COMMERCE  FN6  IN
THAT THEY CONTAINED PROVISIONS DESIGNED TO STIFLE COMPETITION IN THE
NEWSPAPER PUBLISHING FIELD.  FN7  THE COURT ALSO FOUND THAT AP'S
RESTRICTIVE BY-LAWS HAD HINDERED AND IMPEDED THE GROWTH OF COMPETING
NEWSPAPERS.  FN8  THIS LATTER FINDING, AS TO THE PAST EFFECT OF THE
RESTRICTIONS, IS CHALLENGED.  WE ARE INCLINED TO THINK THAT IT IS
SUPPORTED BY UNDISPUTED EVIDENCE, BUT WE DO NOT STOP TO LABOR THE
POINT.  FOR THE COURT BELOW FOUND, AND WE THINK CORRECTLY, THAT THE BY
LAWS ON THEIR FACE, AND WITHOUT REGARD TO THEIR PAST EFFECT, CONSTITUTE
RESTRAINTS OF TRADE.  COMBINATIONS ARE NO LESS UNLAWFUL BECAUSE THEY
HAVE NOT AS YET RESULTED IN RESTRAINT.  AN AGREEMENT OR COMBINATION TO
FOLLOW A COURSE OF CONDUCT WHICH WILL NECESSARILY RESTRAIN OR
MONOPOLIZE A PART OF TRADE OR COMMERCE MAY VIOLATE THE SHERMAN ACT,
WHETHER IT BE "WHOLLY NASCENT OR ABORTIVE ON THE ONE HAND, OR
SUCCESSFUL ON THE OTHER."  FN9  FOR THESE REASONS THE ARGUMENT,
REPEATED HERE IN VARIOUS FORMS, THAT AP HAD NOT YET ACHIEVED A COMPLETE
MONOPOLY IS WHOLLY IRRELEVANT.  UNDISPUTED EVIDENCE DID SHOW, HOWEVER,
THAT ITS BY-LAWS HAD TIED THE HANDS OF ALL OF ITS NUMEROUS PUBLISHERS,
TO THE EXTENT THAT THEY COULD NOT AND DID NOT SELL ANY PART OF THEIR
NEWS SO THAT IT COULD REACH ANY OF THEIR NON-MEMBER COMPETITORS.  IN
THIS RESPECT THE COURT DID FIND, AND THAT FINDING CANNOT POSSIBLY BE
CHALLENGED, THAT AP'S BY-LAWS HAD HINDERED AND RESTRAINED THE SALE OF
INTERSTATE NEWS TO NON-MEMBERS WHO COMPETED WITH MEMBERS. 

INABILITY TO BUY NEWS FROM THE LARGEST NEWS AGENCY, OR ANY ONE OF ITS
MULTITUDE OF MEMBERS, CAN HAVE MOST SERIOUS EFFECTS ON THE PUBLICATION
OF COMPETITIVE NEWSPAPERS, BOTH THOSE PRESENTLY PUBLISHED AND THOSE
WHICH, BUT FOR THESE RESTRICTIONS, MIGHT BE PUBLISHED IN THE FUTURE. 
FN10 THIS IS ILLUSTRATED BY THE DISTRICT COURT'S FINDING THAT, IN 26
CITIES OF THE UNITED STATES, EXISTING NEWSPAPERS ALREADY HAVE CONTRACTS
FOR AP NEWS AND THE SAME NEWSPAPERS HAVE CONTRACTS WITH UNITED PRESS
AND INTERNATIONAL NEWS SERVICE UNDER WHICH NEW NEWSPAPERS WOULD BE
REQUIRED TO PAY THE CONTRACT HOLDERS LARGE SUMS TO ENTER THE FIELD. 
FN11  THE NET EFFECT IS SERIOUSLY TO LIMIT THE OPPORTUNITY OF ANY NEW
PAPER TO ENTER THESE CITIES.  TRADE RESTRAINTS OF THIS CHARACTER, AIMED
AT THE DESTRUCTION OF COMPETITION, TEND TO BLOCK THE INITIATIVE WHICH
BRINGS NEWCOMERS INTO A FIELD OF BUSINESS AND TO FRUSTRATE THE FREE
ENTERPRISE SYSTEM WHICH IT WAS THE PURPOSE OF THE SHERMAN ACT TO
PROTECT.  FN12 

WE NEED NOT AGAIN PASS UPON THE CONTENTION THAT TRADE IN NEWS CARRIED
ON AMONG THE STATES IS NOT INTERSTATE COMMERCE, ASSOCIATED PRESS V.
LABOR BOARD, 301 U.S. 103, OR THAT BECAUSE AP'S ACTIVITIES ARE
COOPERATIVE, THEY FALL OUTSIDE THE SPHERE OF BUSINESS, AMERICAN MEDICAL
ASSN. V. UNITED STATES, 317 U.S. 519, 528.  IT IS SIGNIFICANT THAT WHEN
CONGRESS HAS DESIRED TO PERMIT COOPERATIVES TO INTERFERE WITH THE
COMPETITIVE SYSTEM OF BUSINESS, IT HAS DONE SO EXPRESSLY BY
LEGISLATION.  FN13 

NOR CAN WE TREAT THIS CASE AS THOUGH IT MERELY INVOLVED A REPORTER'S
CONTRACT TO DELIVER HIS NEWS REPORTS EXCLUSIVELY TO A SINGLE NEWSPAPER,
OR AN EXCLUSIVE AGREEMENT AS TO NEWS BETWEEN TWO NEWSPAPERS IN
DIFFERENT CITIES.  FOR SUCH TRADE RESTRAINTS MIGHT WELL BE
"REASONABLE," AND THEREFORE NOT IN VIOLATION OF THE SHERMAN ACT. 
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1.  BUT HOWEVER INNOCENT
SUCH AGREEMENTS MIGHT BE, STANDING ALONE, THEY WOULD ASSUME QUITE A
DIFFERENT ASPECT IF UTILIZED AS ESSENTIAL FEATURES OF A PROGRAM TO
HAMPER OR DESTROY COMPETITION.  IT IS IN THIS LIGHT THAT WE MUST VIEW
THIS CASE. 

IT HAS BEEN ARGUED THAT THE RESTRICTIVE BY-LAWS SHOULD BE TREATED AS
BEYOND THE PROHIBITIONS OF THE SHERMAN ACT, SINCE THE OWNER OF THE
PROPERTY CAN CHOOSE HIS ASSOCIATES AND CAN, AS TO THAT WHICH HE HAS
PRODUCED BY HIS OWN ENTERPRISE AND SAGACITY, EFFORTS OR INGENUITY,
DECIDE FOR HIMSELF WHETHER AND TO WHOM TO SELL OR NOT TO SELL.  WHILE
IT IS TRUE IN A VERY GENERAL SENSE THAT ONE CAN DISPOSE OF HIS PROPERTY
AS HE PLEASES, HE CANNOT "GO BEYOND THE EXERCISE OF THIS RIGHT, AND BY
CONTRACTS OR COMBINATIONS, EXPRESS OR IMPLIED, UNDULY HINDER OR
OBSTRUCT THE FREE AND NATURAL FLOW OF COMMERCE IN THE CHANNELS OF
INTERSTATE TRADE."  UNITED STATES V. BAUSCH & LOMB CO., 321 U.S. 707,
722.  THE SHERMAN ACT WAS SPECIFICALLY INTENDED TO PROHIBIT INDEPENDENT
BUSINESSES FROM BECOMING "ASSOCIATES" IN A COMMON PLAN WHICH IS BOUND
TO REDUCE THEIR COMPETITOR'S OPPORTUNITY TO BUY OR SELL THE THINGS IN
WHICH THE GROUPS COMPETE.  VICTORY OF A MEMBER OF SUCH A COMBINATION
OVER ITS BUSINESS RIVALS ACHIEVED BY SUCH COLLECTIVE MEANS CANNOT
CONSISTENTLY WITH THE SHERMAN ACT OR WITH PRACTICAL, EVERYDAY KNOWLEDGE
BE ATTRIBUTED TO INDIVIDUAL "ENTERPRISE AND SAGACITY"; SUCH HAMPERING
OF BUSINESS RIVALS CAN ONLY BE ATTRIBUTED TO THAT WHICH REALLY MAKES IT
POSSIBLE - THE COLLECTIVE POWER OF AN UNLAWFUL COMBINATION.  THAT THE
OBJECT OF SALE IS THE CREATION OR PRODUCT OF A MAN'S INGENUITY DOES NOT
ALTER THIS PRINCIPLE.  FASHION ORIGINATORS' GUILD V. FEDERAL TRADE
COMMISSION, 312 U.S. 457.  FN14  IT IS OBVIOUSLY FALLACIOUS TO VIEW THE
BY-LAWS HERE IN ISSUE AS INSTITUTING A PROGRAM TO ENCOURAGE AND PERMIT
FULL FREEDOM OF SALE AND DISPOSAL OF PROPERTY BY ITS OWNERS.  RATHER,
THESE PUBLISHERS HAVE, BY CONCERTED ARRANGEMENTS, POOLED THEIR POWER TO
ACQUIRE, TO PURCHASE, AND TO DISPOSE OF NEWS REPORTS THROUGH THE
CHANNELS OF COMMERCE.  THEY HAVE ALSO POOLED THEIR ECONOMIC AND NEWS
CONTROL POWER AND, IN EXERTING THAT POWER, HAVE ENTERED INTO AGREEMENTS
WHICH THE DISTRICT COURT FOUND TO BE "PLAINLY DESIGNED IN THE INTEREST
OF PREVENTING COMPETITION."  FN15 

IT IS FURTHER CONTENDED THAT SINCE THERE ARE OTHER NEWS AGENCIES
WHICH SELL NEWS, IT IS NOT A VIOLATION OF THE ACT FOR AN OVERWHELMING
MAJORITY OF AMERICAN PUBLISHERS TO COMBINE TO DECLINE TO SELL THEIR
NEWS TO THE MINORITY.  BUT THE FACT THAT AN AGREEMENT TO RESTRAIN TRADE
DOES NOT INHIBIT COMPETITION IN ALL OF THE OBJECTS OF THAT TRADE CANNOT
SAVE IT FROM THE CONDEMNATION OF THE SHERMAN ACT.  FN16  IT IS APPARENT
THAT THE EXCLUSIVE RIGHT TO PUBLISH NEWS IN A GIVEN FIELD, FURNISHED BY
AP AND ALL OF ITS MEMBERS, GIVES MANY NEWSPAPERS A COMPETITIVE
ADVANTAGE OVER THEIR RIVALS.  FN17  CONVERSELY, A NEWSPAPER WITHOUT AP
SERVICE IS MORE THAN LIKELY TO BE AT A COMPETITIVE DISADVANTAGE.  THE
DISTRICT COURT STATED THAT IT WAS TO SECURE THIS ADVANTAGE OVER RIVALS
THAT THE BY-LAWS EXISTED.  IT IS TRUE THAT THE RECORD SHOWS THAT SOME
COMPETING PAPERS HAVE GOTTEN ALONG WITHOUT AP NEWS, BUT MORNING
NEWSPAPERS, WHICH CONTROL 96% OF THE TOTAL CIRCULATION IN THE UNITED
STATES, HAVE AP NEWS SERVICE.  AND THE DISTRICT COURT'S UNCHALLENGED
FINDING WAS THAT "AP IS A VAST, INTRICATELY RETICULATED ORGANIZATION,
THE LARGEST OF ITS KIND, GATHERING NEWS FROM ALL OVER THE WORLD, THE
CHIEF SINGLE SOURCE OF NEWS FOR THE AMERICAN PRESS, UNIVERSALLY AGREED
TO BE OF GREAT CONSEQUENCE." 

NEVERTHELESS, WE ARE ASKED TO REVERSE THESE JUDGMEMTS ON THE GROUND
THAT THE EVIDENCE FAILED TO SHOW THAT AP REPORTS, WHICH MIGHT BE
ATTRIBUTABLE TO THEIR OWN "ENTERPRISE AND SAGACITY," ARE CLOTHED "IN
THE ROBES OF INDISPENSABILITY."  THE ABSENCE OF "INDISPENSABILITY" IS
SAID TO HAVE BEEN ESTABLISHED UNDER THE FOLLOWING CHAIN OF REASONING:
AP HAS MADE ITS NEWS GENERALLY AVAILABLE TO THE PEOPLE BY SUPPLYING IT
TO A LIMITED AND SELECT GROUP OF PUBLISHERS IN THE VARIOUS CITIES;
THEREFORE, IT IS SAID, AP AND ITS MEMBER PUBLISHERS HAVE NOT DEPRIVED
THE READING PUBLIC OF AP NEWS; ALL LOCAL READERS HAVE AN "ADEQUATE
ACCESS" TO AP NEWS, SINCE ALL THEY NEED DO IN ANY CITY TO GET IT IS TO
BUY, ON WHATEVER TERMS THEY CAN IN A PROTECTED MARKET, THE PARTICULAR
NEWSPAPER SELECTED FOR THE PUBLIC BY AP AND ITS MEMBERS.  WE REJECT
THESE CONTENTIONS.  THE PROPOSED "INDISPENSABILITY" TEST WOULD FLY IN
THE FACE OF THE LANGUAGE OF THE SHERMAN ACT AND ALL OF OUR PREVIOUS
INTERPRETATIONS OF IT.  MOREOVER, IT WOULD MAKE THAT LAW A DEAD LETTER
IN ALL FIELDS OF BUSINESS, A LAW WHICH CONGRESS HAS CONSISTENTLY
MAINTAINED TO BE AN ESSENTIAL SAFEGUARD TO THE KIND OF PRIVATE
COMPETITIVE BUSINESS ECONOMY THIS COUNTRY HAS SOUGHT TO MAINTAIN. 

THE RESTRAINTS ON TRADE IN NEWS HERE WERE NO LESS THAN THOSE HELD TO
FALL WITHIN THE BAN OF THE SHERMAN ACT WITH REFERENCE TO COMBINATIONS
TO RESTRAIN TRADE OUTLETS IN THE SALE OF TILES, MONTAGUE & CO. V.
LOWRY, 193 U.S. 38; OR ENAMELED IRONWARE, STANDARD SANITARY MFG. CO. V.
UNITED STATES, 226 U.S. 20, 48-49; OR LUMBER, EASTERN STATES LUMBER
DEALERS' ASSN. V. UNITED STATES, 234 U.S. 600, 611; OR WOMEN'S CLOTHES,
FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMMISSION, SUPRA; OR
MOTION PICTURES, UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S.
173.  HERE AS IN THE FASHION ORIGINATORS' GUILD CASE, SUPRA, 465, "THE
COMBINATION IS IN REALITY AN EXTRA-GOVERNMENTAL AGENCY, WHICH
PRESCRIBES RULES FOR THE REGULATION AND RESTRAINT OF INTERSTATE
COMMERCE, AND PROVIDES EXTRA-JUDICIAL TRIBUNALS FOR DETERMINATION AND
PUNISHMENT OF VIOLATIONS, AND THUS 'TRENCHES UPON THE POWER OF THE
NATIONAL LEGISLATURE AND VIOLATES THE STATUTE.'  ADDYSTON PIPE & STEEL
CO. V. UNITED STATES, 175 U.S. 211, 242."  BY THE RESTRICTIVE BY-LAWS
EACH OF THE PUBLISHERS IN THE COMBINATION HAS, IN EFFECT, "SURRENDERED
HIMSELF COMPLETELY TO THE CONTROL OF THE ASSOCIATION," ANDERSON V.
SHIPOWNERS ASSN., 272 U.S. 359, 362, IN RESPECT TO THE DISPOSITION OF
NEWS IN INTERSTATE COMMERCE.  THEREFORE THIS CONTRACTUAL RESTRAINT OF
INTERSTATE TRADE, "DESIGNED IN THE INTEREST OF PREVENTING COMPETITION,"
CANNOT BE ONE OF THE "NORMAL AND USUAL AGREEMENTS IN AID OF TRADE AND
COMMERCE WHICH MAY BE FOUND NOT TO BE WITHIN THE (SHERMAN) ACT  ..." 
EASTERN STATES LUMBER DEALERS' ASSN. V. UNITED STATES, SUPRA, 612,
613.  IT IS FURTHER SAID THAT WE REACH OUR CONCLUSION BY APPLICATION OF
THE "PUBLIC UTILITY" CONCEPT TO THE NEWSPAPER BUSINESS.  THIS IS NOT
CORRECT.  WE MERELY HOLD THAT ARRANGEMENTS OR COMBINATIONS DESIGNED TO
STIFLE COMPETITION CANNOT BE IMMUNIZED BY ADOPTING A MEMBERSHIP DEVICE
ACCOMPLISHING THAT PURPOSE. 

FINALLY, THE ARGUMENT IS MADE THAT TO APPLY THE SHERMAN ACT TO THIS
ASSOCIATION OF PUBLISHERS CONSTITUTES AN ABRIDGMENT OF THE FREEDOM OF
THE PRESS GUARANTEED BY THE FIRST AMENDMENT.  PERHAPS IT WOULD BE A
SUFFICIENT ANSWER TO THIS CONTENTION TO REFER TO THE DECISIONS OF THIS
COURT IN ASSOCIATED PRESS V. LABOR BOARD, SUPRA, AND INDIANA FARMER'S
GUIDE CO. V. PRAIRIE FARMER CO., 293 U.S. 268.  IT WOULD BE STRANGE
INDEED, HOWEVER, IF THE GRAVE CONCERN FOR FREEDOM OF THE PRESS WHICH
PROMPTED ADOPTION OF THE FIRST AMENDMENT SHOULD BE READ AS A COMMAND
THAT THE GOVERNMENT WAS WITHOUT POWER TO PROTECT THAT FREEDOM.  THE
FIRST AMENDMENT, FAR FROM PROVIDING AN ARGUMENT AGAINST APPLICATION OF
THE SHERMAN ACT, HERE PROVIDES POWERFUL REASONS TO THE CONTRARY.  THAT
AMENDMENT RESTS ON THE ASSUMPTION THAT THE WIDEST POSSIBLE
DISSEMINATION OF INFORMATION FROM DIVERSE AND ANTAGONISTIC SOURCES IS
ESSENTIAL TO THE WELFARE OF THE PUBLIC, THAT A FREE PRESS IS A
CONDITION OF A FREE SOCIETY.  SURELY A COMMAND THAT THE GOVERNMENT
ITSELF SHALL NOT IMPEDE THE FREE FLOW OF IDEAS DOES NOT AFFORD NON
GOVERNMENTAL COMBINATIONS A REFUGE IF THEY IMPOSE RESTRAINTS UPON THAT
CONSTITUTIONALLY GUARANTEED FREEDOM.  FREEDOM TO PUBLISH MEANS FREEDOM
FOR ALL AND NOT FOR SOME.  FREEDOM TO PUBLISH IS GUARANTEED BY THE
CONSTITUTION, BUT FREEDOM TO COMBINE TO KEEP OTHERS FROM PUBLISHING IS
NOT.  FREEDOM OF THE PRESS FROM GOVERNMENTAL INTERFERENCE UNDER THE
FIRST AMENDMENT DOES NOT SANCTION REPRESSION OF THAT FREEDOM BY PRIVATE
INTERESTS.  FN18  THE FIRST AMENDMENT AFFORDS NOT THE SLIGHTEST SUPPORT
FOR THE CONTENTION THAT A COMBINATION TO RESTRAIN TRADE IN NEWS AND
VIEWS HAS ANY CONSTITUTIONAL IMMUNITY. 

WE NOW TURN TO THE DECREE.  HAVING ADJUDGED THE BY-LAWS IMPOSING
RESTRICTIONS ON APPLICATIONS FOR MEMBERSHIP TO BE ILLEGAL, THE COURT
ENJOINED THE DEFENDANTS FROM OBSERVING THEM, OR AGREEING TO OBSERVE ANY
NEW OR AMENDED BY-LAW HAVING A LIKE PURPOSE OR EFFECT.  IT FURTHER
PROVIDED THAT NOTHING IN THE DECREE SHOULD PREVENT THE ADOPTION BY THE
ASSOCIATED PRESS OF NEW OR AMENDED BY-LAWS "WHICH WILL RESTRICT
ADMISSION, PROVIDED THAT MEMBERS IN THE SAME CITY AND IN THE SAME
'FIELD' (MORNING, EVENING OR SUNDAY), AS AN APPLICANT PUBLISHING A
NEWSPAPER IN THE UNITED STATES OF AMERICA OR ITS TERRITORIES, SHALL NOT
HAVE POWER TO IMPOSE, OR DISPENSE WITH, ANY CONDITIONS UPON HIS
ADMISSION AND THAT THE BY-LAWS SHALL AFFIRMATIVELY DECLARE THAT THE
EFFECT OF ADMISSION UPON THE ABILITY OF SUCH APPLICANT TO COMPETE WITH
MEMBERS IN THE SAME CITY AND 'FIELD' SHALL NOT BE TAKEN INTO
CONSIDERATION IN PASSING UPON HIS APPLICATION."  SOME OF APPELLANTS
ARGUE THAT THIS DECREE IS VAGUE AND INDEFINITE.  THEY ARGUE THAT IT
WILL BE IMPOSSIBLE FOR THE ASSOCIATION TO KNOW WHETHER OR NOT ITS
MEMBERS TOOK INTO CONSIDERATION THE COMPETITIVE SITUATION IN PASSING
UPON APPLICATIONS FOR MEMBERSHIP.  WE CANNOT AGREE THAT THE DECREE IS
AMBIGUOUS.  WE ASSUME, WITH THE COURT BELOW, THAT AP WILL FAITHFULLY
CARRY OUT ITS PURPOSE.  INTERPRETING THE DECREE TO MEAN THAT AP NEWS IS
TO BE FURNISHED TO COMPETITORS OF OLD MEMBERS WITHOUT DISCRIMINATION
THROUGH BY-LAWS CONTROLLING MEMBERSHIP, OR OTHERWISE, WE APPROVE IT. 
THE COURT ALSO HELD THAT, TAKEN IN CONNECTION WITH THE RESTRICTIVE
CLAUSES ON ADMISSIONS TO MEMBERSHIP, THOSE SECTIONS OF THE BY-LAWS
VIOLATED THE SHERMAN ACT WHICH PREVENTED SERVICE OF AP NEWS TO NON
MEMBERS AND PREVENTED AP MEMBERS FROM FURNISHING SPONTANEOUS NEWS TO
ANYONE NOT A MEMBER OF THE ASSOCIATION.  IT HELD THE AGREEMENT BETWEEN
AP AND THE CANADIAN PRESS, UNDER WHICH AP SECURED EXCLUSIVE RIGHT TO
RECEIVE THE NEWS REPORTS OF THE CANADIAN PRESS AND ITS MEMBERS, WAS
ALSO, WHEN TAKEN IN CONNECTION WITH THE RESTRICTIVE MEMBERSHIP
AGREEMENTS, IN VIOLATION OF THE SHERMAN ACT.  IT DECLINED TO HOLD THESE
BY-LAWS AND THE AGREEMENT WITH CANADIAN PRESS ILLEGAL STANDING BY
THEMSELVES.  IT CONSEQUENTLY ENJOINED THEIR OBSERVANCE TEMPORARILY,
PENDING AP'S OBEDIENCE TO THE DECREE ENJOINING THE RESTRICTIVE
MEMBERSHIP AGREEMENTS.  THE COURT'S FINDINGS JUSTIFIED THIS PHASE OF
ITS INJUNCTION.  UNITED STATES V. BAUSCH & LOMB CO., SUPRA, 724. 

THE GOVERNMENT HAS APPEALED FROM THE COURT'S REFUSAL TO HOLD EACH OF
THESE LAST-MENTIONED ITEMS A VIOLATION OF THE SHERMAN ACT STANDING
ALONE.  THE GOVERNMENT ALSO ASKS THAT THE DECREE OF THE DISTRICT COURT
BE BROADENED, SO AS PERMANENTLY TO ENJOIN OBSERVANCE OF THE CANADIAN
PRESS CONTRACT AND ALL THE CHALLENGED BY-LAWS.  IT ALSO SUGGESTS
CERTAIN SPECIFIC TERMS WHICH SHOULD BE ADDED TO THE DECREE TO ASSURE
THE COMPLETE ERADICATION OF AP'S DISCRIMINATION AGAINST COMPETITORS OF
ITS MEMBERS. 

THE FASHIONING OF A DECREE IN AN ANTITRUST CASE IN SUCH WAY AS TO
PREVENT FUTURE VIOLATIONS AND ERADICATE EXISTING EVILS, IS A MATTER
WHICH RESTS LARGELY IN THE DISCRETION OF THE COURT.  UNITED STATES V.
CRESCENT AMUSEMENT CO., SUPRA.  A FULL EXPLORATION OF FACTS IS USUALLY
NECESSARY IN ORDER PROPERLY TO DRAW SUCH A DECREE.  IN THIS CASE THE
GOVERNMENT CHOSE TO PRESENT ITS CASE ON THE NARROW ISSUES WHICH WERE
WITHIN THE REALM OF UNDISPUTED FACTS.  IN THE SITUATION THUS NARROWLY
PRESENTED WE ARE UNABLE TO SAY THAT THE COURT'S DECREE SHOULD HAVE GONE
FURTHER THAN IT DID.  FURTHERMORE, THE DISTRICT COURT RETAINED THE
CAUSE FOR SUCH FURTHER PROCEEDINGS AS MIGHT BECOME NECESSARY.  IF, AS
THE GOVERNMENT APPREHENDS, THE DECREE IN ITS PRESENT FORM SHOULD NOT
PROVE ADEQUATE TO PREVENT FURTHER DISCRIMINATORY TRADE RESTRAINTS
AGAINST NON-MEMBER NEWSPAPERS, THE COURT'S RETENTION OF THE CAUSE WILL
ENABLE IT TO TAKE THE NECESSARY MEASURES TO CAUSE THE DECREE TO BE
FULLY AND FAITHFULLY CARRIED OUT. 

THE JUDGMENT IN ALL THREE CASES IS AFFIRMED. 

FN1  RULE 56 PROVIDES, "A PARTY SEEKING TO RECOVER UPON A CLAIM,
COUNTERCLAIM, OR CROSS-CLAIM OR TO OBTAIN A DECLARATORY JUDGMENT MAY,
AT ANY TIME AFTER THE PLEADING IN ANSWER THERETO HAS BEEN SERVED, MOVE
WITH OR WITHOUT SUPPORTING AFFIDAVITS FOR A SUMMARY JUDGMENT IN HIS
FAVOR UPON ALL OR ANY PART THEREOF....  THE JUDGMENT SOUGHT SHALL BE
RENDERED FORTHWITH IF THE PLEADINGS, DEPOSITIONS, AND ADMISSIONS ON
FILE, TOGETHER WITH THE AFFIDAVITS, IF ANY, SHOW THAT, EXCEPT AS TO THE
AMOUNT OF DAMAGES, THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT
AND THAT THE MOVING PARTY IS ENTITLED TO A JUDGMENT AS A MATTER OF
LAW." 

FN2  THE DIRECTORS WHO HAVE THIS POWER TO PUNISH ARE ELECTED BY THE
MEMBERS BUT EACH MEMBER DOES NOT HAVE EQUAL VOTING PRIVILEGES IN THE
ELECTION.  THE BY-LAWS GRANT ONE ADDITIONAL VOTE FOR EACH $25.00 OF AP
BONDS HELD BY A MEMBER.  THIS MEANS THAT IN THE ELECTION OF DIRECTORS
THE OWNER OF A $1,000.00 BOND CAN CAST 40 MORE VOTES THAN A MEMBER WHO
OWNS NO BONDS.  ALL MEMBERS, HOWEVER, DO NOT AND CANNOT UNDER
RESTRICTIVE PROVISIONS OF THE BY-LAWS OWN AN EQUAL AMOUNT OF BONDS.  IN
1942, 99 OUT OF 1,247 MEMBERS OWNED BLOCKS OF BONDS OF THE FACE VALUE
OF $1,000.00 OR MORE, TOTALING MORE THAN 50% OF THE OUTSTANDING BONDS. 
THE COURT BELOW FOUND ON THE UNDISPUTED EVIDENCE THAT THE BONDHOLDER
VOTE RATHER THAN THE MEMBERSHIP VOTE CONTROLS THE SELECTION OF AP
DIRECTORS.  THE DIRECTORS HAVE POWER TO APPORTION AMONG THE MEMBERS THE
EXPENSES OF COLLECTING AND DISTRIBUTING NEWS, AND TO LEVY ASSESSMENTS
UPON THE MEMBERS.  AS TO THIS APPORTIONMENT AND LEVY THE BY-LAWS
PROVIDE THAT "THERE SHALL BE NO RIGHT TO QUESTION THE ACTION OF THE
BOARD OF DIRECTORS IN RESPECT TO SUCH APPORTIONMENT OR ASSESSMENTS,
EITHER BY APPEAL TO A MEETING OF MEMBERS, OR OTHERWISE, BUT THE ACTION
OF THE DIRECTORS, WHEN TAKEN, SHALL BE FINAL AND CONCLUSIVE." 

FN3  ANOTHER BY-LAW PROVIDES THAT "THE NEWS WHICH A MEMBER SHALL
FURNISH AS HEREIN REQUIRED SHALL BE ALL SUCH NEWS AS IS SPONTANEOUS IN
ITS ORIGIN, BUT SHALL NOT INCLUDE ANY NEWS THAT IS NOT SPONTANEOUS IN
ITS ORIGIN, OR WHICH HAS ORIGINATED THROUGH DELIBERATE AND INDIVIDUAL
ENTERPRISE ON THE PART OF SUCH MEMBER OF THE NEWSPAPER SPECIFIED IN
SUCH MEMBER'S CERTIFICATE OF MEMBERSHIP." 

FN4  THE COURT FOUND THAT OUT OF THE 1,803 DAILY ENGLISH LANGUAGE
NEWSPAPERS PUBLISHED IN THE UNITED STATES, WITH A TOTAL CIRCULATION OF
42,080,391, 1,179 OF THEM, WITH A CIRCULATION OF 34,762,120, WERE UNDER
JOINT CONTRACTUAL OBLIGATIONS NOT TO SUPPLY EITHER AP OR THEIR OWN
"SPONTANEOUS" NEWS TO ANY NON-MEMBER OF AP. 

FN5  UNDER THESE TERMS, A NEW APPLICANT COULD NOT HAVE ENTERED THE
MORNING FIELD IN NEW YORK WITHOUT PAYING $1,432,142.73, AND IN CHICAGO,
$416,631.90.  FOR ENTERING THE EVENING FIELD IN THE SAME CITIES IT
WOULD HAVE COST $1,095,003.21, AND $595,772.31, RESPECTIVELY. 

FN6  "THE BY-LAWS OF AP ARE IN EFFECT AGREEMENTS BETWEEN THE MEMBERS:
THAT ONE WHICH RESTRICTS AP TO THE TRANSMISSION OF NEWS TO MEMBERS, AND
THAT WHICH RESTRICTS ANY MEMBER TO TRANSMITTING 'SPONTANEOUS' NEWS TO
THE ASSOCIATION, ARE BOTH CONTRACTS IN RESTRAINT OF COMMERCE.  THEY
RESTRICT COMMERCE BECAUSE THEY LIMIT THE MEMBERS' FREEDOM TO RELAY ANY
NEWS TO OTHERS, EITHER THE NEWS THEY LEARN THEMSELVES, OR THAT WHICH
THEY LEARN COLLECTIVELY THROUGH AP AS THEIR AGENT."  UNITED STATES V.
ASSOCIATED PRESS, 52 F.SUPP.  362, 368. 

FN7  THE DISTRICT COURT FOUND THAT, AMONG ALL THE NEWS-GATHERING
AGENCIES IN THE UNITED STATES, AP RANKED "IN THE FOREFRONT IN PUBLIC
REPUTATION AND ESTEEM" AND THAT IT WAS "THE CHIEF SINGLE SOURCE OF NEWS
FOR THE AMERICAN PRESS, UNIVERSALLY AGREED TO BE OF GREAT CONSEQUENCE";
THAT THE COMBINATION OF AP OWNERS ACTED TOGETHER FOR THE PURPOSE OF
USING THE NEWS-GATHERING FACILITIES OF THE INDIVIDUAL PUBLISHERS AND OF
THE COMBINATION, WHICH NEWS WAS MADE AVAILABLE TO MEMBERS AND DENIED TO
OTHERS; AND THAT THE RESTRICTIVE BY-LAWS HAD BEEN OBSERVED, CARRIED
OUT, AND APPLIED IN PRACTICE.  THE COURT DECLARED THAT THE CONDITIONS
WHICH OLD MEMBERS COULD IMPOSE UPON NEW APPLICANTS FOR MEMBERSHIP WERE
"PLAINLY DESIGNED IN THE INTEREST OF PREVENTING COMPETITION," AND THAT
THE REQUIREMENT OF PAYMENTS FROM NEW MEMBERS TO COMPETING OLD MEMBERS
"WERE DESIGNED TO COMPENSATE COMPETITORS FOR THE LOSS IN VALUE OF THEIR
MEMBERSHIP, ARISING OUT OF THE APPLICANT'S IMPROVED POSITION AS A
COMPETITOR."  THE COURT POINTED OUT THAT THESE RESTRICTIVE PROVISIONS
WOULD "ACT AS A DETERRENT," AND MIGHT "PROVE A COMPLETE BAR TO THE
ADMISSION OF ANY APPLICANT." 

FN8  THAT FINDING IS AS FOLLOWS:  "THE GROWTH OF NEWS AGENCIES HAS
BEEN FOSTERED TO SOME EXTENT AS A RESULT OF THE RESTRICTIONS OF THE
ASSOCIATED PRESS' SERVICES TO ITS OWN MEMBERS, BUT OTHER RESTRICTIONS
IMPOSED BY THE ASSOCIATED PRESS HAVE HAMPERED AND IMPEDED THE GROWTH OF
COMPETING NEWS AGENCIES AND OF NEWSPAPERS COMPETITIVE WITH MEMBERS OF
THE ASSOCIATED PRESS." 

THE COURT'S OPINION, AND ITS FINDINGS AS A WHOLE, SHOW THAT THE
"OTHER RESTRICTIONS" FOUND TO HAVE HAMPERED COMPETITION WERE THOSE
RELATING TO ADMISSIONS TO MEMBERSHIP IN AP AND TO RESTRAINTS UPON A
MEMBER'S FREEDOM TO SELL HIS NEWS. 

FN9  UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 225.  SEE
ALSO UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392, 402; FASHION
ORIGINATORS' GUILD V. FEDERAL TRADE COMMISSION, 312 U.S. 457, 466;
UNITED STATES V. PATTEN, 226 U.S. 525, 543; PARAMOUNT FAMOUS CORP. V.
UNITED STATES, 282 U.S. 30, 41; STANDARD OIL CO. V. UNITED STATES, 221
U.S. 1, 65-66. 

FN10  THE DISTRICT COURT FOUND AS A FACT THAT "IT IS PRACTICALLY
IMPOSSIBLE FOR ANY ONE NEWSPAPER ALONE TO ESTABLISH OR MAINTAIN THE
ORGANIZATION REQUISITE FOR COLLECTING ALL OF THE NEWS OF THE WORLD, OR
ANY SUBSTANTIAL PART THEREOF; ASIDE FROM THE ADMINISTRATIVE AND
ORGANIZATION DIFFICULTIES THEREOF, THE FINANCIAL COST IS SO GREAT THAT
NO SINGLE NEWSPAPER ACTING ALONE COULD SUSTAIN IT." 

FN11  INS AND UP MAKE SO-CALLED "ASSET VALUE" CONTRACTS UNDER WHICH
IF ANOTHER NEWSPAPER WISHES TO OBTAIN THEIR PRESS SERVICES, THE
NEWCOMER SHALL PAY TO THE COMPETITOR HOLDING THE UP OR INS CONTRACT THE
STIPULATED "ASSET VALUE." 

FN12  PARAMOUNT FAMOUS CORP. V. UNITED STATES, SUPRA, 42, QUOTED
UNITED STATES V. COLGATE & CO., 250 U.S. 300, 307, TO THE FOLLOWING
EFFECT:  "'THE PURPOSE OF THE SHERMAN ACT IS TO PROHIBIT MONOPOLIES,
CONTRACTS AND COMBINATIONS WHICH PROBABLY WOULD UNDULY INTERFERE WITH
THE FREE EXERCISE OF THEIR RIGHTS BY THOSE ENGAGED, OR WHO WISH TO
ENGAGE, IN TRADE AND COMMERCE - IN A WORD TO PRESERVE THE RIGHT OF
FREEDOM TO TRADE.'" 

FN13  SEE E.G., 7 U.S.C. 291, 292, AS TO FARM COOPERATIVES; 15 U.S.C.
17, AS TO LABOR ORGANIZATIONS.  BUT SEE ALSO AS TO THE LATTER, APEX
HOSIERY CO. V. LEADER, 310 U.S. 469, 487-498. 

FN14  IT IS ARGUED THAT THE DECISION IN BOARD OF TRADE V. CHRISTIE
GRAIN & STOCK CO., 198 U.S. 236, REQUIRES A HOLDING THAT THESE
ARRANGEMENTS ARE CONSISTENT WITH THE SHERMAN ACT.  IN THAT CASE, THE
BOARD OF TRADE GATHERED "QUOTATIONS" OF THE PRICES ON SALES OF GRAIN
FOR FUTURE DELIVERY AND SOLD THE "INFORMATION" UNDER AGREEMENTS
FORBIDDING THE PURCHASERS TO REVEAL IT.  THE BOARD OF TRADE FILED SUIT
TO PREVENT ITS PURCHASERS FROM BREAKING THIS AGREEMENT BY TRANSMITTING
THE STATISTICS TO A "BUCKET SHOP OR PLACE WHERE THEY ARE USED AS A
BASIS FOR BETS OR ILLEGAL CONTRACTS," P. 246.  IT WAS SAID IN THE
OPINION THAT THE STATISTICS WERE IN THE NATURE OF A "TRADE SECRET." 
THE OPINION STATED THAT THE BOARD'S COLLECTION OF STATISTICAL
INFORMATION WAS ENTITLED TO THE PROTECTION OF THE LAWS; THAT IT HAD A
RIGHT TO KEEP IT TO ITSELF, AND THAT IT DID NOT "LOSE ITS RIGHTS BY
COMMUNICATING THE RESULT TO PERSONS, EVEN IF MANY, IN CONFIDENTIAL
RELATIONS TO ITSELF, UNDER A CONTRACT NOT TO MAKE IT PUBLIC, AND
STRANGERS TO THE TRUST WILL BE RESTRAINED FROM GETTING AT THE KNOWLEDGE
BY INDUCING A BREACH OF TRUST AND USING KNOWLEDGE OBTAINED BY SUCH A
BREACH."  OF COURSE, ONE WHO HAS CREATED OR ACQUIRED SOMETHING OF VALUE
HAS A GENERAL RIGHT TO USE IT ACCORDING TO THE DICTATES OF HIS OWN
DISCRETION, BUT THIS RIGHT OF OWNERSHIP IS MEASURED BY THE LIMITATIONS
OF LAW, AND THE SHERMAN ACT WHICH OBVIOUSLY RESTRICTS THE FREE AND
UNTRAMMELED USE OF PROPERTY, IN THE PUBLIC INTEREST, IS A CLEAR AND
POINTED INSTANCE OF THE NON-ABSOLUTE CHARACTER OF PROPERTY RIGHTS.  AN
ARGUMENT TO THE CONTRARY WAS EXPRESSLY REJECTED IN FASHION ORIGINATORS'
GUILD V. FEDERAL TRADE COMMISSION, SUPRA, 467, 478. 

FURTHERMORE, THE CONTRACTS INVOLVED IN THE CHRISTIE CASE WERE "NOT
RELIED ON AS A CAUSE OF ACTION."  THIS COURT FOUND THAT THOSE CONTRACTS
DID NOT SHOW A PURPOSE TO DENY SALE OF THE STATISTICS TO NON-MEMBERS OF
THE BOARD OF TRADE.  WHETHER SUCH A CONTRACTUAL RESTRICTION WOULD HAVE
VIOLATED THE SHERMAN ACT, THE COURT REFUSED TO DECIDE.  IN THE INSTANT
CASE, AS WE HAVE POINTED OUT, BOTH THE INDIVIDUAL PUBLISHERS AND AP
HAVE BOUND THEMSELVES TO FURNISH THEIR NEWS TO EACH OTHER AND TO DENY
IT TO ALL OTHERS.  TWO LATER CASES REPEATED THE STATEMENT AS TO THE
RIGHT OF ONE WHO GATHERED STATISTICS TO SELL THEM ON CONDITIONS. 
NEITHER OF THEM, HOWEVER, DECIDED THAT SUCH RESTRICTIVE ARRANGEMENTS AS
APPEAR IN THE INSTANT CASE WOULD NOT CONSTITUTE UNREASONABLE RESTRAINTS
OF TRADE.  MOORE V. N.Y. COTTON EXCHANGE, 270 U.S. 593; HUNT V. N.Y.
COTTON EXCHANGE, 205 U.S. 322. 

FN15  EVEN IF ADDITIONAL PURPOSES WERE INVOLVED, IT WOULD NOT JUSTIFY
THE COMBINATION, SINCE THE SHERMAN ACT CANNOT "BE EVADED BY GOOD
MOTIVES.  THE LAW IS ITS OWN MEASURE OF RIGHT AND WRONG, OF WHAT IT
PERMITS, OR FORBIDS, AND THE JUDGMENT OF THE COURTS CANNOT BE SET UP
AGAINST IT IN A SUPPOSED ACCOMMODATION OF ITS POLICY WITH THE GOOD
INTENTION OF PARTIES, AND IT MAY BE, OF SOME GOOD RESULTS."  STANDARD
SANITARY MFG. CO. V. UNITED STATES, 226 U.S. 20, 49. 

FN16  UNITED STATES V. SOCONY-VACUUM OIL CO., SUPRA, 221, 224. 

THIS COURT SAID IN PARAMOUNT FAMOUS CORP. V. UNITED STATES, SUPRA,
44, "IN ORDER TO ESTABLISH VIOLATION OF THE SHERMAN ACT IT IS NOT
NECESSARY TO SHOW THAT THE CHALLENGED ARRANGEMENT SUPPRESSES ALL
COMPETITION BETWEEN THE PARTIES OR THAT THE PARTIES THEMSELVES ARE
DISCONTENTED WITH THE ARRANGEMENT.  THE INTEREST OF THE PUBLIC IN THE
PRESERVATION OF COMPETITION IS THE PRIMARY CONSIDERATION."  AGAIN, IN
FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMMISSION, SUPRA, 466, WE
SAID, "NOR IS IT DETERMINATIVE IN CONSIDERING THE POLICY OF THE SHERMAN
ACT THAT PETITIONERS MAY NOT YET HAVE ACHIEVED A COMPLETE MONOPOLY. 
FOR 'IT IS SUFFICIENT IF IT REALLY TENDS TO THAT END AND TO DEPRIVE THE
PUBLIC OF THE ADVANTAGES WHICH FLOW FROM FREE COMPETITION.'  UNITED
STATES V. E.C. KNIGHT CO., 156 U.S. 1, 16; ADDYSTON PIPE & STEEL CO. V.
UNITED STATES, 175 U.S. 211, 237."  SEE ALSO APEX HOSIERY CO. V.
LEADER, 310 U.S. 469, 485. 

FN17  THE DISTRICT COURT POINTED OUT THAT, "MONOPOLY IS A RELATIVE
WORD.  IF ONE MEANS BY IT THE POSSESSION OF SOMETHING ABSOLUTELY
NECESSARY TO THE CONDUCT OF AN ACTIVITY, THERE ARE FEW EXCEPT THE
EXCLUSIVE POSSESSION OF SOME NATURAL RESOURCE WITHOUT WHICH THE
ACTIVITY IS IMPOSSIBLE.  MOST MONOPOLIES, LIKE MOST PATENTS, GIVE
CONTROL OVER ONLY SOME MEANS OF PRODUCTION FOR WHICH THERE IS A
SUBSTITUTE; THE POSSESSOR ENJOYS AN ADVANTAGE OVER HIS COMPETITORS, BUT
HE CAN SELDOM SHUT THEM OUT ALTOGETHER; HIS MONOPOLY IS MEASURED BY THE
HANDICAP HE CAN IMPOSE....  AND YET THAT ADVANTAGE ALONE MAY MAKE A
MONOPOLY UNLAWFUL.  IT WOULD BE POSSIBLE, FOR INSTANCE, TO CONDUCT SOME
KIND OF A NEWSPAPER WITHOUT ANY NEWS SERVICE WHATEVER; BUT NOBODY WILL
MAINTAIN THAT, IF AP WERE THE ONLY NEWS SERVICE IN EXISTENCE, THE
MEMBERS COULD KEEP IT WHOLLY TO THEMSELVES AND REDUCE ALL OTHER PAPERS
TO SUCH NEWS AS THEY COULD GATHER BY THEIR OWN EFFORTS."  UNITED STATES
V. ASSOCIATED PRESS, 52 F.SUPP.  362, 371.    FN18  IT IS ARGUED THAT
THE DECREE INTERFERES WITH FREEDOM "TO PRINT AS AND HOW ONE'S REASON OR
ONE'S INTEREST DICTATES."  THE DECREE DOES NOT COMPEL AP OR ITS MEMBERS
TO PERMIT PUBLICATION OF ANYTHING WHICH THEIR "REASON" TELLS THEM
SHOULD NOT BE PUBLISHED.  IT ONLY PROVIDES THAT AFTER THEIR "REASON"
HAS PERMITTED PUBLICATION OF NEWS, THEY SHALL NOT, FOR THEIR OWN
FINANCIAL ADVANTAGE, UNLAWFULLY COMBINE TO LIMIT ITS PUBLICATION.  THE
ONLY COMPULSION TO PRINT WHICH APPEARS IN THE RECORD IS FOUND IN THE BY
LAWS, PREVIOUSLY SET OUT, WHICH COMPEL MEMBERS OF THE ASSOCIATION TO
PRINT SOME AP NEWS OR SUBJECT THEMSELVES TO FINE OR EXPULSION FROM
MEMBERSHIP IN THE ASSOCIATION. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

I JOIN IN THE OPINION OF THE COURT.  BUT IN VIEW OF THE BROADER
ISSUES WHICH HAVE BEEN INJECTED INTO THE DISCUSSION OF THE CASE, I ADD
A FEW WORDS TO INDICATE WHAT I DEEM TO BE THE NARROW COMPASS OF THE
DECISION. 

EVERY EXCLUSIVE ARRANGEMENT IN THE BUSINESS OR COMMERCIAL FIELD MAY
PRODUCE A RESTRAINT OF TRADE.  A MANUFACTURER WHO HAS ONLY ONE RETAIL
OUTLET FOR HIS PRODUCT MAY BE SAID TO RESTRAIN TRADE IN THE SENSE THAT
OTHER RETAILERS ARE PREVENTED FROM DEALING IN THE COMMODITY.  AND TO A
DEGREE, THE SAME KIND OF RESTRAINT MAY BE FOUND WHEREVER A REPORTER IS
GATHERING NEWS EXCLUSIVELY FOR ONE NEWSPAPER.  BUT STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, CONSTRUED THE SHERMAN ACT TO INCLUDE NOT
EVERY RESTRAINT BUT ONLY THOSE WHICH WERE UNREASONABLE.  STARTING FROM
THAT PREMISE, I ASSUME THAT IT WOULD NOT BE A VIOLATION OF THE SHERMAN
ACT IF A NEWSPAPER IN SEATTLE AND ONE IN NEW YORK MADE AN AGENCY
AGREEMENT WHEREBY EACH WAS TO FURNISH EXCLUSIVELY TO THE OTHER NEWS
REPORTS FROM HIS LOCALITY. 

BUT SUCH AN EXCLUSIVE ARRANGEMENT, THOUGH INNOCENT STANDING ALONE,
MIGHT BE PART OF A SCHEME WHICH WOULD VIOLATE THE SHERMAN ACT IN ONE OF
TWO RESPECTS. 

(1)  IT MIGHT BE A PART OF THE MACHINERY UTILIZED TO EFFECT A
RESTRAINT OF TRADE IN VIOLATION OF SEC. 1 OF THE ACT.  CF. UNITED
STATES V. BAUSCH & LOMB CO., 321 U.S. 707.  I THINK THE EXCLUSIVE
ARRANGEMENT EMPLOYED BY THE ASSOCIATED PRESS HAD SUCH A NECESSARY
EFFECT.  AS DEVELOPED IN THE OPINION OF THE COURT, THE BY-LAWS OF THE
ASSOCIATED PRESS WERE AIMED AT THE COMPETITORS OF THE ASSOCIATED PRESS'
MEMBERS; THEIR NECESSARY EFFECT WAS TO HINDER OR IMPEDE COMPETITION
WITH MEMBERS OF THE COMBINATION.  THE DISTRICT COURT NOT ONLY ORDERED
THE BY-LAWS TO BE REVISED; IT ENJOINED CONTINUANCE OF THE EXCLUSIVE
ARRANGEMENT UNTIL THE RESTRAINT EFFECTED BY THE BY-LAWS HAD BEEN
ELIMINATED.  THAT WAS PLAINLY WITHIN ITS POWER.  FOR IT IS WELL SETTLED
THAT A FEATURE OF AN ILLEGAL RESTRAINT OF TRADE, WHICH IS INNOCENT BY
ITSELF AND WHICH MAY BE LAWFULLY USED IF INDEPENDENTLY ESTABLISHED, MAY
BE UPROOTED ALONG WITH THE OTHER PARTS OF AN ILLEGAL ARRANGEMENT. 
ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 461; UNITED STATES
V. UNIVIS LENS CO., 316 U.S. 241, 254.  WE CERTAINLY CANNOT SAY THAT
THE DISTRICT COURT ABUSED ITS DISCRETION IN ADOPTING THAT COURSE HERE
AS AN INTERIM MEASURE PENDING A REVISION OF THE BY-LAWS. 

(2)  SUCH AN EXCLUSIVE ARRANGEMENT AS WE HAVE HERE MIGHT RESULT IN
THE GROWTH OF A MONOPOLY IN THE FURNISHING OF NEWS, IN THE ACCESS TO
NEWS, OR IN THE GATHERING OR DISTRIBUTION OF NEWS.  THOSE ARE BUSINESS
ACTIVITIES SUBJECT TO THE SHERMAN ACT (INDIANA FARMER'S GUIDE CO. V.
PRAIRIE FARMER CO., 293 U.S. 268) AS WELL AS OTHER ACTS OF CONGRESS
REGULATING INTERSTATE COMMERCE.  ASSOCIATED PRESS V. LABOR BOARD, 301
U.S. 103.  THE DISTRICT COURT FOUND THAT IN ITS PRESENT STAGE OF
DEVELOPMENT THE ASSOCIATED PRESS HAD NO MONOPOLY OF THAT CHARACTER. 
THOSE FINDINGS ARE CHALLENGED HERE IN THE APPEAL TAKEN BY THE UNITED
STATES.  THEY ARE NOT REACHED IN THE PRESENT DECISION FOR THE REASON,
DISCUSSED IN THE OPINION OF THE COURT, THAT THEY CANNOT BE TRIED OUT ON
A MOTION FOR A SUMMARY JUDGMENT.  THE DECREE WHICH WE APPROVE DOES NOT
DIRECT ASSOCIATED PRESS TO SERVE ALL APPLICANTS.  IT GOES NO FURTHER
THAN TO PUT A BAN ON ASSOCIATED PRESS' PRACTICE OF DISCRIMINATING
AGAINST COMPETITORS OF ITS MEMBERS IN THE SAME FIELD OR TERRITORY. 
THAT ENTAILS NOT ONLY A DISCONTINUANCE OF THE PRACTICE FOR THE FUTURE
BUT AN UNDOING OF THE WRONG WHICH HAS BEEN DONE.  IF ASSOCIATED PRESS,
AFTER THE EFFECTS OF THAT DISCRIMINATION HAVE BEEN ELIMINATED, FREEZES
ITS MEMBERSHIP AT A GIVEN LEVEL, QUITE DIFFERENT PROBLEMS WOULD BE
PRESENTED.  WHETHER THAT WOULD RESULT IN A MONOPOLY IN VIOLATION OF
SEC. 1 OF THE ACT IS DISTINCT FROM THE ISSUE IN THIS CASE. 

ONLY IF A MONOPOLY WERE SHOWN TO EXIST WOULD WE BE FACED WITH THE
PUBLIC UTILITY THEORY WHICH HAS BEEN MUCH DISCUSSED IN CONNECTION WITH
THIS CASE AND ADOPTED BY MR. JUSTICE FRANKFURTER.  THE DECREES UNDER
THE SHERMAN ACT DIRECTED AT MONOPOLIES HAVE CUSTOMARILY BEEN DESIGNED
TO BREAK THEM UP OR DISSOLVE THEM.  SEE UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173.  THERE HAVE BEEN SOME EXCEPTIONS.  THUS IN
UNITED STATES V. TERMINAL RAILROAD ASSN., 224 U.S. 383, AN ACTION WAS
BROUGHT UNDER THE SHERMAN ACT TO DISSOLVE A COMBINATION AMONG CERTAIN
RAILROADS SERVING ST. LOUIS.  THE COMBINATION HAD ACQUIRED CONTROL OF
ALL AVAILABLE FACILITIES FOR CONNECTING RAILROADS ON THE EAST BANK OF
THE MISSISSIPPI WITH THOSE ON THE WEST BANK.  THE COURT HELD THAT AS AN
ALTERNATIVE TO DISSOLUTION A PLAN SHOULD BE SUBMITTED WHICH PROVIDED
FOR EQUALITY OF TREATMENT OF ALL RAILROADS.  AND SEE UNITED STATES V.
GREAT LAKES TOWING CO., 208 F. 733, 747, 217 F. 656, APPEAL DISMISSED,
245 U.S. 675.  UNITED STATES V. NEW ENGLAND FISH EXCHANGE, 258 F. 732. 
WHETHER THAT PROCEDURE WOULD BE APPROPRIATE IN THIS TYPE OF CASE OR
SHOULD AWAIT FURTHER LEGISLATIVE ACTION (CF. MR. JUSTICE BRANDEIS'
DISSENTING OPINION, INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS, 248
U.S. 215, 248, 262) IS A CONSIDERABLE QUESTION, THE DISCUSSION OF WHICH
SHOULD NOT CLOUD THE PRESENT DECISION.  WHAT WE DO TODAY HAS NO BEARING
WHATSOEVER ON IT. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE DISTRICT COURT PROPERLY APPLIED THE SHERMAN LAW IN ENJOINING THE
DEFENDANTS FROM CONTINUING TO ENFORCE THE EXISTING BY-LAWS RESTRICTING
MEMBERSHIP IN THE ASSOCIATED PRESS, AND FURTHER ENJOINING THE
ENFORCEMENT OF ANOTHER RESTRICTIVE BY-LAW FORBIDDING ASSOCIATED PRESS
MEMBERS TO COMMUNICATE "SPONTANEOUS" NEWS TO NON-MEMBERS.  I WOULD
SUSTAIN THE JUDGMENT SUBSTANTIALLY FOR THE REASONS GIVEN BELOW BY JUDGE
LEARNED HAND.  52 F.SUPP.  362. 

THE ASSOCIATED PRESS IS IN ESSENCE THE COMMON AGENT OF ABOUT 1,300
NEWSPAPERS IN THE VARIOUS CITIES THROUGHOUT THE COUNTRY FOR THE
INTERCHANGE OF NEWS WHICH EACH PAPER COLLECTS IN ITS OWN TERRITORY, AND
FOR THE GATHERING, EDITING, AND DISTRIBUTING OF NEWS WHICH THESE MEMBER
PAPERS CANNOT COLLECT SINGLE-HANDED, AND WHICH REQUIRES THEIR POOLED
RESOURCES.  THE HISTORIC DEVELOPMENT OF THIS AGENCY, ITS WORLD-WIDE
SCOPE, THE PERVASIVE INFLUENCE IT EXERTS IN OBTAINING AND DISSEMINATING
INFORMATION, THE COUNTRY'S DEPENDENCE UPON IT FOR NEWS OF THE WORLD -
ALL THESE ARE MATTERS OF COMMON KNOWLEDGE AND HAVE BEEN ABUNDANTLY
SPREAD UPON THE RECORDS OF THIS COURT.  INTERNATIONAL NEWS SERVICE V.
ASSOCIATED PRESS, 248 U.S. 215; ASSOCIATED PRESS V. LABOR BOARD, 301
U.S. 103.  SEE DESMOND, THE PRESS AND WORLD AFFAIRS (1937) CHAPTERS I,
II, III. 

THE BY-LAWS IN CONTROVERSY OPERATE IN SUBSTANCE AS A NETWORK OF
AGREEMENTS AMONG THE MEMBERS OF THE ASSOCIATED PRESS WHEREBY THEY
MOBILIZE THE INTEREST OF ALL AGAINST THE DANGER OF COMPETITION TO EACH
BY A PRESENT OR FUTURE RIVAL - TO THE EXTENT THAT INABILITY TO OBTAIN
AN ASSOCIATED PRESS "FRANCHISE" IS A SERIOUS FACTOR IN THE COMPETITION
BETWEEN PAPERS IN THE SAME CITY.  WHILE A MEMBER NEWSPAPER NO LONGER
HAS AN ABSOLUTE VETO POWER IN THE DENIAL OF FACILITIES OF THE
ASSOCIATED PRESS SERVICE TO A RIVAL PAPER APPLYING FOR MEMBERSHIP, FOR
PRACTICAL PURPOSES THERE REMAIN EFFECTIVE BARRIERS TO ADMISSION TO THE
ASSOCIATED PRESS BASED SOLELY ON GROUNDS OF BUSINESS COMPETITION.  AS
JUDGE LEARNED HAND HAS POINTED OUT, THE ABATEMENT IN THE BY-LAW FROM A
FORMER ABSOLUTE VETO TO A CONDITIONAL VETO AGAINST AN APPLICANT
COMPETING WITH AN EXISTING MEMBER "BY NO MEANS OPENED MEMBERSHIP TO ALL
THOSE WHO WOULD BE ENTITLED TO IT, IF THE PUBLIC HAS AN INTEREST IN ITS
BEING FREE FROM EXCLUSION FOR COMPETITIVE REASONS, AND IF THAT INTEREST
IS PARAMOUNT.  ALTHOUGH, AS WE HAVE SAID, ONLY A FEW MEMBERS WILL HAVE
ANY DIRECT PERSONAL INTEREST IN KEEPING OUT AN APPLICANT, THE REST WILL
NOT FEEL FREE TO JUDGE HIM REGARDLESS OF THE EFFECT OF HIS ADMISSION ON
HIS COMPETITORS.  EACH WILL KNOW THAT THE TIME MAY COME WHEN HE WILL
HIMSELF BE FACED WITH THE APPLICATION OF A COMPETITOR  ...  A BY-LAW
WHICH LEAVES IT OPEN TO MEMBERS TO VOTE SOLELY AS THEIR SELF-INTEREST
MAY DICTATE, DISREGARDS WHATEVER PUBLIC INTEREST MAY EXIST."  52
F.SUPP.  362, 370-371. 

INDUBITABLY, THEN, WE HAVE HERE ARRANGEMENTS WHEREBY MEMBERS OF THE
ASSOCIATED PRESS BIND ONE ANOTHER FROM SELLING LOCAL NEWS TO NON
MEMBERS AND EXERCISE POWER, WHICH RECIPROCAL SELF-INTEREST INVOKES, TO
HELP ONE ANOTHER IN KEEPING OUT COMPETITORS FROM MEMBERSHIP IN THE
ASSOCIATED PRESS, WITH ALL THE ADVANTAGES THAT IT BRINGS TO A
NEWSPAPER.  SINCE THE ASSOCIATED PRESS IS AN ENTERPRISE ENGAGED IN
INTERSTATE COMMERCE, ASSOCIATED PRESS V. LABOR BOARD, SUPRA, THESE
PLAINLY ARE AGREEMENTS IN RESTRAINT OF THAT COMMERCE.  BUT EVER SINCE
THE SHERMAN LAW WAS SAVED FROM STIFLING LITERALNESS BY "THE RULE OF
REASON," STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; UNITED STATES
V. AMERICAN TOBACCO CO., 221 U.S. 106; IT IS NOT SUFFICIENT TO FIND A
RESTRAINT.  THE DECISIVE QUESTION IS WHETHER IT IS AN UNREASONABLE
RESTRAINT.  THIS DEPENDS, IN ESSENCE, ON THE SIGNIFICANCE OF THE
RESTRAINT IN RELATION TO A PARTICULAR INDUSTRY.  COMPARE CHICAGO BOARD
OF TRADE V. UNITED STATES, 246 U.S. 231, 238. 

TO BE SURE, THE ASSOCIATED PRESS IS A COOPERATIVE ORGANIZATION OF
MEMBERS WHO ARE "ENGAGED IN A COMMERCIAL BUSINESS FOR PROFIT." 
ASSOCIATED PRESS V. LABOR BOARD, SUPRA, AT 128.  BUT IN ADDITION TO
BEING A COMMERCIAL ENTERPRISE, IT HAS A RELATION TO THE PUBLIC INTEREST
UNLIKE THAT OF ANY OTHER ENTERPRISE PURSUED FOR PROFIT.  A FREE PRESS
IS INDISPENSABLE TO THE WORKINGS OF OUR DEMOCRATIC SOCIETY.  THE
BUSINESS OF THE PRESS, AND THEREFORE THE BUSINESS OF THE ASSOCIATED
PRESS, IS THE PROMOTION OF TRUTH REGARDING PUBLIC MATTERS BY FURNISHING
THE BASIS FOR AN UNDERSTANDING OF THEM.  TRUTH AND UNDERSTANDING ARE
NOT WARES LIKE PEANUTS OR POTATOES.  AND SO, THE INCIDENCE OF
RESTRAINTS UPON THE PROMOTION OF TRUTH THROUGH DENIAL OF ACCESS TO THE
BASIS FOR UNDERSTANDING CALLS INTO PLAY CONSIDERATIONS VERY DIFFERENT
FROM COMPARABLE RESTRAINTS IN A COOPERATIVE ENTERPRISE HAVING MERELY A
COMMERCIAL ASPECT.  I FIND MYSELF ENTIRELY IN AGREEMENT WITH JUDGE
LEARNED HAND THAT "NEITHER EXCLUSIVELY, NOR EVEN PRIMARILY, ARE THE
INTERESTS OF THE NEWSPAPER INDUSTRY CONCLUSIVE; FOR THAT INDUSTRY
SERVES ONE OF THE MOST VITAL OF ALL GENERAL INTERESTS:  THE
DISSEMINATION OF NEWS FROM AS MANY 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."  52 F.SUPP.  362, 372. 

FROM THIS POINT OF VIEW IT IS WHOLLY IRRELEVANT THAT THE ASSOCIATED
PRESS ITSELF HAS RIVAL NEWS AGENCIES.  AS TO ORDINARY COMMODITIES,
AGREEMENTS TO CURTAIL THE SUPPLY AND TO FIX PRICES ARE IN VIOLATION OF
THE AREA OF FREE ENTERPRISE WHICH THE SHERMAN LAW WAS DESIGNED TO
PROTECT.  THE PRESS IN ITS COMMERCIAL ASPECTS IS ALSO SUBJECT TO THE
REGULATION OF THE SHERMAN LAW.  INDIANA FARMER'S GUIDE CO. V. PRAIRIE
FARMER CO., 293 U.S. 268.  BUT THE FREEDOM OF ENTERPRISE PROTECTED BY
THE SHERMAN LAW NECESSARILY HAS DIFFERENT ASPECTS IN RELATION TO THE
PRESS THAN IN THE CASE OF ORDINARY COMMERCIAL PURSUITS.  THE INTEREST
OF THE PUBLIC IS TO HAVE THE FLOW OF NEWS NOT TRAMMELED BY THE COMBINED
SELF-INTEREST OF THOSE WHO ENJOY A UNIQUE CONSTITUTIONAL POSITION
PRECISELY BECAUSE OF THE PUBLIC DEPENDENCE ON A FREE PRESS.  A PUBLIC
INTEREST SO ESSENTIAL TO THE VITALITY OF OUR DEMOCRATIC GOVERNMENT MAY
BE DEFEATED BY PRIVATE RESTRAINTS NO LESS THAN BY PUBLIC CENSORSHIP. 

EQUALLY IRRELEVANT IS THE OBJECTION THAT IT TURNS THE ASSOCIATED
PRESS INTO A "PUBLIC UTILITY" TO DENY TO A COMBINATION OF NEWSPAPERS
THE RIGHT TO TREAT ACCESS TO THEIR POOLED RESOURCES AS THOUGH THEY WERE
REGULATING MEMBERSHIP IN A SOCIAL CLUB.  THE RELATION OF SUCH
RESTRAINTS UPON ACCESS TO NEWS AND THE RELATION OF SUCH ACCESS TO THE
FUNCTION OF A FREE PRESS IN OUR DEMOCRATIC SOCIETY MUST NOT BE OBSCURED
BY THE SPECIALIZED NOTIONS THAT HAVE GATHERED AROUND THE LEGAL CONCEPT
OF "PUBLIC UTILITY." 

THE SHORT OF THE MATTER IS THAT THE BY-LAWS WHICH THE DISTRICT COURT
HAS STRUCK DOWN CLEARLY RESTRICT THE COMMERCE WHICH IS CONDUCTED BY THE
ASSOCIATED PRESS, AND THE RESTRICTIONS ARE UNREASONABLE BECAUSE THEY
OFFEND THE BASIC FUNCTIONS WHICH A CONSTITUTIONALLY GUARANTEED FREE
PRESS SERVES IN OUR NATION.    MR. JUSTICE ROBERTS. 

I THINK THE JUDGMENT SHOULD BE REVERSED.  IN RESPECT OF MOST OF THE
QUESTIONS INVOLVED I MIGHT REST ON THE DISCUSSION BY JUDGE SWAN IN HIS
DISSENTING OPINION IN THE DISTRICT COURT.  THE NOVELTY AND IMPORTANCE
OF THE QUESTIONS, AND THE SUMMARY DISPOSITION OF THEM IN THE COURT'S
OPINION, HAVE, HOWEVER, MOVED ME TO STATE MY VIEWS IN DETAIL. 

THIS CASE DEALS WITH "NEWS."  NEWS IS INFORMATION ABOUT MATTERS OF
GENERAL INTEREST.  THE TERM HAS BEEN DEFINED AS "A REPORT OF A RECENT
EVENT."  THE REPORT MAY BE MADE TO ONE MOVED BY CURIOSITY OR TO ONE WHO
WISHES TO MAKE SOME PRACTICAL USE OF IT.  NEWSPAPERS OBTAIN SUCH
REPORTS AND PUBLISH THEM AS A PART OF A BUSINESS CONDUCTED FOR PROFIT. 
THE PROPRIETOR OF A NEWSPAPER, WHEN HE EMPLOYS A PERSON TO INQUIRE AND
REPORT, ENGAGES PERSONAL SERVICE.  I SUPPOSE NO ONE WOULD DENY THAT HE
IS ENTITLED TO THE EXCLUSIVE USE OF THE REPORT RENDERED AS A RESULT OF
THE SERVICE FOR WHICH HE CONTRACTS AND PAYS.  I SUPPOSE THAT ONE
RENDERING SUCH SERVICE IS FREE TO CONTRACT WITH HIS EMPLOYER THAT THE
PRODUCT OF HIS INQUIRIES - THE NEWS HE FURNISHES HIS EMPLOYER - SHALL
BE USED SOLELY BY THE EMPLOYER AND NOT IMPARTED TO ANOTHER. 

AS I HAVE SAID, NEWS IS THE RESULT OF EFFORT IN THE INVESTIGATION OF
RECENT EVENTS.  EVERY NEWSPAPER IS INTERESTED IN PROCURING NEWS OF
HAPPENINGS IN ITS VICINITY, AND MAINTAINS A STAFF FOR THAT PURPOSE. 
SUCH NEWS MAY HAVE SOME VALUE TO NEWSPAPERS PUBLISHED IN CITIES OUTSIDE
THE LOCALITY OF THE OCCURRENCE.  I ASSUME THAT IF TWO PUBLISHERS AGREED
THAT EACH SHOULD SUPPLY A TRANSCRIPT OF ALL REPORTS HE RECEIVED TO THE
OTHER, AND CONDITIONED THEIR AGREEMENT THAT NEITHER WOULD ABUSE THE
PRIVILEGE ACCORDED, BY GIVING AWAY OR SELLING WHAT WAS FURNISHED UNDER
THE JOINT ARRANGEMENT, THERE COULD BE NO OBJECTION UNDER THE SHERMAN
ACT.  I HAD ASSUMED, ALTHOUGH THE OPINION APPEARS TO HOLD OTHERWISE,
THAT SUCH AN ARRANGEMENT WOULD NOT BE OBNOXIOUS TO THE SHERMAN ACT
BECAUSE MANY, RATHER THAN FEW, JOINED IN IT.  I THINK THAT THE
SITUATION WOULD BE NO DIFFERENT IF A MACHINERY WERE CREATED TO
FACILITATE THE EXCHANGE OF THE NEWS PROCURED BY EACH OF THE
PARTICIPANTS SUCH AS A PARTNERSHIP, AN UNINCORPORATED ASSOCIATION, OR A
NON-PROFIT CORPORATION. 

I ASSUME IT CANNOT BE QUESTIONED THAT TWO OR MORE PERSONS DESIROUS OF
OBTAINING NEWS MAY AGREE TO EMPLOY A SINGLE REPORTER, OR A STAFF OF
REPORTERS, TO FURNISH THEM NEWS, AND AGREE AMONGST THEMSELVES THAT, AS
THEY SHARE THE EXPENSE INVOLVED, THEY THEMSELVES WILL USE THE FRUIT OF
THE SERVICE AND WILL NOT GIVE IT AWAY OR SELL IT.  ALTHOUGH THE
PROCEDURE HAS OBVIOUS ADVANTAGES, AND IS IN ITSELF INNOCENT, I DO NOT
KNOW, FROM THE OPINION OF THE COURT, WHETHER IT WOULD BE HELD THAT THE
INEVITABLE OR NECESSARY OPERATION, OR NECESSARY CONSEQUENCE, OF SUCH AN
ARRANGEMENT IS TO RESTRAIN COMPETITION IN TRADE OR COMMERCE AND THAT IT
IS, CONSEQUENTLY, ILLEGAL.  FN1  MANY EXPRESSIONS IN THE OPINION SEEM
TO RECOGNIZE THAT ALL AP DOES IS TO KEEP FOR ITS MEMBERS THAT WHICH, AT
JOINT EXPENSE, ITS MEMBERS AND EMPLOYEES HAVE PRODUCED,  - ITS REPORTS
OF WORLD EVENTS.  THUS IT IS SAID THAT NONMEMBERS ARE DENIED ACCESS TO
AP NEWS, NOT, BE IT OBSERVED, TO NEWS.  AGAIN IT IS SAID THAT THE BY
LAWS "BLOCK ALL NEWSPAPER NONMEMBERS FROM ANY OPPORTUNITY TO BUY NEWS
FROM AP OR ANY OF ITS PUBLISHER MEMBERS"; AGAIN THAT "THE ERECTION OF
OBSTACLES TO THE ACQUISITION OF MEMBERSHIP  ...  CAN MAKE IT DIFFICULT,
IF NOT IMPOSSIBLE, FOR NONMEMBERS TO GET ANY OF THE NEWS FURNISHED BY
AP  ..."  IF THESE EXPRESSIONS STOOD ALONE AS THE FACTUAL BASIS OF
DECISION WE SHOULD KNOW THAT THE COURT IS CONDEMNING A JOINT ENTERPRISE
FOR THE PRODUCTION OF SOMETHING - HERE, NEWS COPY - WHICH THOSE WHO
PRODUCE IT INTEND TO USE FOR THEIR EXCLUSIVE BENEFIT.  BUT IT IS
IMPOSSIBLE TO DEDUCE FROM THE OPINION THAT THIS IS THE RATIO OF
DECISION. 

I DO NOT UNDERSTAND THAT THE COURT'S DECISION IS PITCHED ON THE FACT
THAT AP IS A MEMBERSHIP CORPORATION.  THE SAME RESULT COULD BE ATTAINED
BY RESORT TO A MULTI-PARTY CONTRACT, TO A PARTNERSHIP, OR TO AN
UNINCORPORATED ASSOCIATION.  THE CHOICE OF THE FORM OF THE COOPERATIVE
ENTERPRISE DOES NOT AFFECT THE NATURE OF THE PROBLEM PRESENTED.  FN2 

AP WAS CREATED TO ACCOMPLISH ON A MUTUAL, NONPROFIT, BASIS THE TWO
OBJECTS MENTIONED.  ITS PURPOSE IS STATED BY ITS CHARTER AS "THE
COLLECTION AND INTERCHANGE, WITH GREATER ECONOMY AND EFFICIENCY, OF
INFORMATION AND INTELLIGENCE FOR PUBLICATION IN THE NEWSPAPERS" OF ITS
MEMBERS.  THE ORGANIZATION STARTED ON A COMPARATIVELY MODEST BASIS, TO
FACILITATE EXCHANGE OF NEWS REPORTS AMONGST ITS MEMBERS.  IT HAS GROWN
INTO A COOPERATIVELY MAINTAINED NEWS REPORTING AGENCY HAVING, IN
ADDITION, ITS OWN REPORTERS AND AGENCIES FOR THE COLLECTION,
ARRANGEMENT, EDITING, AND TRANSMISSION TO ITS MEMBERS, OF NEWS,
GATHERED BY ITS EMPLOYEES, AND THOSE OF OTHERS WITH WHOM IT CONTRACTS. 

THE QUESTION IS WHETHER THE SHERMAN ACT PRECLUDES SUCH A COOPERATIVE
ARRANGEMENT AND RENDERS THOSE WHO PARTICIPATE LIABLE TO FURNISH NEWS
COPY, ON EQUAL TERMS, TO ALL NEWSPAPERS WHICH DESIRE IT, AS THE COURT
BELOW HAS HELD.  IF SO, IT MUST BE BECAUSE THE JOINT ARRANGEMENT
CONSTITUTES A CONTRACT, COMBINATION OR CONSPIRACY IN RESTRAINT OF
TRADE, OR A MONOPOLIZATION, OR AN ATTEMPT OR COMBINATION OR CONSPIRACY
TO MONOPOLIZE PART OR ALL OF SOME BRANCH OF INTERSTATE OR INTERNATIONAL
TRADE OR COMMERCE, OR IS A PUBLIC UTILITY SUBJECT TO REGULATION.  IF
AP'S ACTIVITIES FALL WITHIN THE DENUNCIATION OF THE STATUTE IT MUST BE
BECAUSE THE MEMBERS (1) HAVE COMBINED WITH THE PURPOSE TO RESTRAIN
TRADE BY DESTROYING COMPETITION; OR (2), EVEN THOUGH THEIR INTENT WAS
INNOCENT, HAVE SET UP A COMBINATION WHICH EITHER (A) TENDS UNREASONABLY
TO RESTRAIN, OR (B) HAS IN FACT RESULTED, IN UNDUE AND UNREASONABLE
RESTRAINT OF FREE COMPETITION IN TRADE OR COMMERCE; OR (3) INTENDED AND
ATTEMPTED TO MONOPOLIZE A PART OR ALL OF A BRANCH OF TRADE; OR (4) HAVE
CREATED AN ORGANIZATION OF SUCH PROPORTIONS THAT IN FACT IT HAS SUCH A
MONOPOLY; OR (5) HAVE CREATED AN AGENCY WHICH THE SHERMAN ACT RENDERS A
PUBLIC UTILITY SUBJECT TO REGULATION NOTWITHSTANDING THE GUARANTEES OF
THE FIRST AMENDMENT OF THE CONSTITUTION. 

I AM UNABLE TO DETERMINE ON WHICH OF SUCH POSSIBLE GROUNDS THE
JUDGMENT OF ILLEGALITY IS RESTED.  THE COURT'S OPINION BLENDS AND
MINGLES STATEMENTS OF FACT, INFERENCES AND CONCLUSIONS, AND QUOTATIONS
FROM PRIOR OPINIONS WRESTED FROM THEIR SETTING AND CONTEXT, IN SUCH
FASHION THAT I FIND IT IMPOSSIBLE TO DEDUCE MORE THAN THAT ORDERLY
ANALYSIS AND DISCUSSION OF FACTS RELEVANT TO ANY ONE OF THE POSSIBLE
METHODS OF VIOLATION OF THE SHERMAN ACT IS AVOIDED, IN THE VIEW THAT
SEPARATE CONSIDERATION WOULD DISCLOSE A LACK OF SUPPORT FOR ANY FINDING
OF SPECIFIC WRONGDOING.  BUT THE GENERAL PRINCIPLE THAT NOTHING ADDED
TO NOTHING WILL NOT ADD UP TO SOMETHING HOLDS TRUE IN THIS CASE.  IT IS
A TEDIOUS TASK TO SEPARATE THE GENERALITIES THUS MINGLED IN THE
OPINION, BUT I CAN ONLY ESSAY IT BY DISCUSSING ONE ASPECT OF THE CASE
AT A TIME. 

IN LIMINE, IT SHOULD BE REMEMBERED THAT NEWSPAPER PROPRIETORS WHO ARE
MEMBERS OF AP ARE NOT, AS PUBLISHERS, IN THE TRADE OF BUYING OR SELLING
NEWS.  THEIR BUSINESS IS THE PUBLISHING OF NEWSPAPERS.  IN THIS
BUSINESS THEY PRINT INTER ALIA NEWS, EDITORIAL COMMENT, SPECIAL
ARTICLES, PHOTOGRAPHS, AND ADVERTISEMENTS.  IT HAS BEEN HELD THAT A
JOINT EFFORT TO OBTAIN ADVERTISING TO BE PUBLISHED IN ALL THE PAPERS
PARTIES TO THE ARRANGEMENT, AT SPECIAL RATES, IS NOT A VIOLATION OF THE
SHERMAN ACT.  FN3  IT HAS BEEN REPEATEDLY HELD BY THIS COURT THAT THE
COLLECTION OF INFORMATION ON BEHALF OF THE MEMBERSHIP OF AN
UNINCORPORATED ASSOCIATION, AND THE FURNISHING OF THAT INFORMATION FOR
PAY TO SUCH PERSONS AS THE ASSOCIATION DECIDES SHALL SHARE IT, IS NOT A
VIOLATION OF THE SHERMAN ACT.  FN4  I THINK THIS IS NOT BECAUSE THE
EXCLUSIVE RIGHT TO USE INFORMATION OR NEWS COPY OBTAINED DIFFERS
SOMEWHAT FROM PROPERTY RIGHTS IN TILES OR LUMBER OR PIPE OR WOMEN'S
FASHIONS OR MOTION-PICTURE FILM.  I THINK IT IS BECAUSE INFORMATION
GATHERED AS THE RESULT OF EFFORT, OR OF COMPENSATION PAID THE GATHERER,
IS PROTECTED AS IS PROPERTY, UNTIL PUBLISHED; AND THAT UNAUTHORIZED
PUBLICATION BY ANOTHER IS A WRONG REDRESSIBLE IN THE SAME WAY AS
UNAUTHORIZED INTERFERENCE WITH ONE'S RIGHTS IN TANGIBLE PROPERTY.  IN
THE VERY CASE OF AP, THIS COURT HAS SO HELD,  FN5  AS HAS THE ATTORNEY
GENERAL OF THE UNITED STATES.  FN6  AS THE ATTORNEY GENERAL HAS POINTED
OUT, THIS PROPOSITION IS SUBJECT TO THE QUALIFICATION THAT THERE MUST
BE NO PURPOSE TO DESTROY COMPETITION OR TO MONOPOLIZE, BUT WITH THESE
MATTERS I SHALL DEAL HEREAFTER. 

FIRST.  ARE THE MEMBERS OF AP ACTING TOGETHER WITH THE PURPOSE OF
DESTROYING COMPETITION?  I HAVE NOT DISCOVERED ANY ALLEGATION IN THE
COMPLAINT TO THAT EFFECT.  THE COURT BELOW HAS NOT MADE ANY SUCH
FINDING.  THEY DENY ANY SUCH PURPOSE OR INTENT AND YET, AS I READ
PASSAGES IN THE COURT'S OPINION, IT IS NOW FOUND, ON THIS SUMMARY
JUDGMENT RECORD, WITHOUT A TRIAL, THAT THEY ARE, AND HAVE BEEN,
ACTUATED BY SUCH AN INTENT.  THE OPINION STATES:  "AN AGREEMENT OR
COMBINATION TO FOLLOW A COURSE OF CONDUCT WHICH WILL NECESSARILY
RESTRAIN OR MONOPOLIZE A PART OF TRADE OR COMMERCE MAY VIOLATE THE
SHERMAN ACT, WHETHER IT BE 'WHOLLY NASCENT OR ABORTIVE ON THE ONE HAND,
OR SUCCESSFUL ON THE OTHER.'"  I TAKE THIS STATEMENT AS SUGGESTING THE
PLEADINGS AND PROOF DISCLOSE, WITHOUT CONTRADICTION, THAT AP AND ITS
MEMBERS AGREED OR COMBINED TO RESTRAIN TRADE.  THERE IS NO SUCH
ALLEGATION IN THE COMPLAINT, AND THERE IS NOT, AND CANNOT BE, ANY
FINDING ON THIS RECORD TO SUPPORT THE CONCLUSION.  THE CASES CITED IN
THE OPINION OF AGREEMENTS TO BOYCOTT OR TO DRIVE COMPETITORS OUT OF
BUSINESS, OR TO COMPEL MERCHANTS TO DEAL ONLY WITH MEMBERS OF A GROUP,
ARE, AS WILL APPEAR, INAPPOSITE TO THE CASE AT BAR.  THE DEFENDANTS SAY
THAT THEY MERELY KEEP FOR THEIR OWN MEMBERS' USE THAT WHICH THEIR OWN
MEMBERS' ACTIVITY AND EXPENDITURE HAS PRODUCED.  WE MUST NOT CONFUSE
THE INTENT OF THE MEMBERS WITH THE SIZE OF THEIR ORGANIZATION.  THESE
TWO MATTERS SEEM TO BE INEXTRICABLY BLENDED IN THE COURT'S TREATMENT OF
THE CASE, BUT THEY DIFFER IN THEIR NATURE AND AS A BASIS FOR DECISION. 

BUT, IT MAY BE URGED, INTENT IS TO BE GATHERED FROM CONDUCT, AND
THOSE WHOSE ACTIONS HAVE IN FACT UNDULY RESTRAINED TRADE, WILL NOT BE
HEARD TO DENY THE PURPOSE TO ACCOMPLISH THE RESULT OF THEIR CONDUCT. 
THIS IS SOUND DOCTRINE, AND IT LEADS TO AN INQUIRY AS TO THE ACTUAL
IMPOSITION OF PROHIBITED RESTRAINTS. 

SECOND.  HAS THE PLAN, AND HAVE THE OPERATIONS OF AP, THE INEVITABLE
CONSEQUENCE OF RESTRAINING COMPETITION BETWEEN NEWS AGENCIES OR
NEWSPAPERS, OR HAVE THEY, AND DO THEY NOW, NECESSARILY TEND TO, OR IN
FACT, UNREASONABLY RESTRAIN SUCH COMPETITION?  ON THIS QUESTION THE
COURT BELOW MADE NO FINDINGS SAVE ONE OF DUBIOUS IMPORT. 

IT IS WORTH WHILE TO QUOTE THE FINDING TO WHICH THE OPINION OF THIS
COURT REFERS: 

"THE GROWTH OF NEWS AGENCIES HAS BEEN FOSTERED TO SOME EXTENT AS A
RESULT OF THE RESTRICTIONS OF THE ASSOCIATED PRESS' SERVICES TO ITS OWN
MEMBERS, BUT OTHER RESTRICTIONS IMPOSED BY THE ASSOCIATED PRESS HAVE
HAMPERED AND IMPEDED THE GROWTH OF COMPETING NEWS AGENCIES AND OF
NEWSPAPERS COMPETITIVE WITH MEMBERS OF THE ASSOCIATED PRESS." 

THE FINDING IS VAGUE FOR IT FAILS TO SPECIFY WHAT IS MEANT BY "OTHER
RESTRICTIONS."  THE PHRASE CANNOT MEAN THE MEMBERSHIP RESTRICTIONS OF
THE BY-LAWS FOR THOSE ARE MENTIONED IN THE PRECEDING CLAUSE.  NOR DOES
THIS COURT'S OPINION FURNISH ANY ADDITIONAL LIGHT. 

NOT ONLY IS THE FINDING ATTACKED, AS THE COURT'S OPINION ADMITS, BUT,
IN ADDITION, THE RECORD NEGATIVES THE SWEEPING ASSUMPTIONS THE COURT
INDULGES RESPECTING THE EFFECT OF AP'S ACTIVITIES. 

THE OPINION STATES THAT THE MEMBERS "HAVE, BY CONCERTED ARRANGEMENTS,
POOLED THEIR POWER TO ACQUIRE, TO PURCHASE, AND TO DISPOSE OF NEWS
REPORTS THROUGH THE CHANNELS OF COMMERCE," AND, IN ADDITION, HAVE
"POOLED THEIR ECONOMIC AND NEWS CONTROL POWER AND, IN EXERTING THAT
POWER, HAVE ENTERED INTO AGREEMENTS WHICH THE DISTRICT COURT FOUND TO
BE 'PLAINLY DESIGNED IN THE INTEREST OF PREVENTING COMPETITION.'"  THIS
SENTENCE IS CHARACTERISTIC OF THE OPINION.  IN THE FIRST PLACE, AS WILL
LATER APPEAR, THE RECORD PRESENTS NO QUESTION OF "PURCHASING POWER." 
ONE CANNOT PURCHASE THE EVENTS OF HISTORY; HE CAN EMPLOY SOMEONE TO
REPORT THEM TO HIM.  DOES THE SENTENCE MEAN THAT AP HAS "PURCHASED" ALL
OR MOST OF THE AVAILABLE REPORTERS IN THE NATION OR THE WORLD? 
SECONDLY, THE SENTENCE SEEMS TO ATTRIBUTE TO AP SOME SORT OF
MONOPOLIZATION OF THE NEWSPAPER PUBLISHING BUSINESS.  AND, FINALLY, IT
SEEMS TO ATTRIBUTE TO THE COURT BELOW A FINDING THAT AP HAS UNDULY OR
UNREASONABLY RESTRAINED TRADE.  AS WILL APPEAR, THE COURT BELOW MADE NO
SUCH FINDING AND, BECAUSE IT COULD NOT DO SO, SOUGHT ANOTHER GROUND ON
WHICH TO BASE ITS DECISION.  MOREOVER, THE FACTS ASSUMED ARE
SPECIFICALLY DENIED BY THE ANSWER, AND CONTRADICTED BY THE PROOFS. 

THE UNCONTRADICTED PROOFS TO WHICH I SHALL LATER REFER SHOW THAT
NONMEMBER PUBLISHERS NOT ONLY HAVE OBTAINED, AND NOW OBTAIN, COMPLETE
AND SATISFACTORY NEWS COVERAGE FROM OTHER AGENCIES, BUT HAVE PROSPERED
AND GROWN WITHOUT AP NEWS SERVICE. 

IT IS SAID IN THE OPINION THAT THE BY-LAWS, AS OBSTACLES TO
MEMBERSHIP, TEND TO MAKE IT DIFFICULT TO OBTAIN NEWS FURNISHED BY AP OR
ITS MEMBERS AND THAT IT IS APPARENT THAT THE EXCLUSIVE RIGHT WHICH AP
MEMBERS HAVE GIVES MANY NEWSPAPERS A COMPETITIVE ADVANTAGE OVER THEIR
RIVALS.  BUT THE EVENTS OF LIFE ARE OPEN TO ALL WHO INQUIRE.  THERE IS
NO DEARTH OF THOSE WILLING TO INQUIRE AND REPORT THOSE EVENTS, FOR
PROPER COMPENSATION.  THUS THE COURT MUST HERE BE HOLDING THAT IF A
CONCERN GATHERS FROM THE AIR, FROM THE SUNLIGHT, OR FROM THE WATERS OF
THE SEA, BY ITS EFFORT AND INGENUITY, SOMETHING THAT OTHERS HAVE NOT
GARNERED, IT MUST MAKE THE RESULTS OF ITS ACTIVITY OPEN TO ALL, FOR IF
IT SELLS TO SOME AND NOT TO OTHERS THE FORMER WILL HAVE A COMPETITIVE
ADVANTAGE.  THE EXCLUSIVE USE OF THAT WHICH IS THUS OBTAINED ALWAYS, IN
A SENSE, GIVES A COMPETITIVE ADVANTAGE OVER THOSE LESS ACTIVE AND
ENTERPRISING.  THE OPINION SEEMS TO MEAN THAT NO CONTRACT, HOWEVER
NARROW ITS EFFECT, HOWEVER INNOCENT ITS PURPOSE, WHICH IN THE LEAST
DEGREE RESTRICTS COMPETITION, FN7  CAN SURVIVE ATTACK UNDER THE SHERMAN
ACT; THAT NO SUCH CONCEPT AS A REASONABLE RESTRAINT, A RESTRAINT
LIMITED TO THE LEGITIMATE PROTECTION OF ONE'S PROPERTY OR BUSINESS, AND
LIMITED IN SPACE OR IN TIME, OR AFFECTING A FEW ONLY OF ALL THOSE
ENGAGED IN A GIVEN TRADE, IS FREE OF ILLEGALITY.  IS NOT THIS TO
REESTABLISH THE HARSH AND SWEEPING EFFECT ATTRIBUTED TO THE STATUTE IN
UNITED STATES V. TRANS-MISSOURI FREIGHT ASSOCIATION, 166 U.S. 290, AND
UNITED STATES V. JOINT TRAFFIC ASSOCIATION, 171 U.S. 505, WHICH WAS
ABANDONED MORE THAN THIRTY YEARS AGO, FOR THE VIEW, EVER SINCE
MAINTAINED, THAT THE STATUTE MERELY ADOPTED THE COMMON LAW CONCEPT OF
UNDUE AND UNREASONABLE RESTRAINTS OF TRADE.  FN8  IF THE COURT IS NOW
TO REVERT TO THE HARSH AND MECHANICAL APPLICATION OF THE ACT THAT EVERY
AGREEMENT WHICH IN ANY MEASURE RESTRAINS TRADE (NOTWITHSTANDING THE
TRUISM THAT "EVERY AGREEMENT CONCERNING TRADE  ...  RESTRAINS")  FN9
IS ILLEGAL, THE RULING SHOULD BE MADE EXPLICIT AND NOT LEFT IN THE
REALM OF SPECULATION. 

THE OPINION SAYS THAT THE DISTRICT COURT FOUND THAT THE BY-LAWS
"CONTAINED PROVISIONS DESIGNED TO STIFLE COMPETITION IN THE NEWSPAPER
PUBLISHING FIELD."  THE DISTRICT COURT MADE NO FINDING AND REACHED NO
CONCLUSION THAT AP IMPOSED ANY RESTRAINT WHICH WAS UNDUE OR
UNREASONABLE, AND THE MATTER QUOTED IN FOOTNOTES 6 AND 8 OF THE COURT'S
OPINION DOES NOT SUPPORT ANY SUCH GLOSS AS THIS COURT PLACES ON WHAT
THE DISTRICT COURT SAID IN ITS OPINIONS OR ITS FORMAL FINDINGS AND
CONCLUSIONS, AS A MERE READING WILL DEMONSTRATE. 

IF COLLATERAL RESTRAINTS IN AGREEMENTS FOR THE SALE OF A BUSINESS,
AND OTHERS OF LIKE SORT, PERMITTED AND ENFORCED AT COMMON LAW, AND
HERETOFORE UNDER THE SHERMAN ACT  FN10 AS WELL, ARE NOW TO FALL UNDER
CONDEMNATION, WE SHOULD KNOW THE FACT. 

THE OPINION ASSUMES THAT THE COMPETITORS OF AP SUFFER FROM AN
INABILITY TO BUY NEWS.  IT IS REPLETE WITH INTIMATIONS THAT THE
COOPERATIVE ACTIVITIES OF AP HAVE, IN FACT, SERIOUSLY IMPEDED THE
FOUNDING AND GROWTH OF OTHER NEWS-GATHERING AGENCIES THAN AP AND ITS
MEMBER NEWS-GATHERING AGENCIES AND OTHER NEWSPAPERS THAN AP'S MEMBER
NEWSPAPERS.  THEY ARE TOO MANY FOR ENUMERATION, BUT MAY BE ILLUSTRATED
BY THE COURT'S STATEMENT THAT "HISTORICALLY, AS WELL AS PRESENTLY,
APPLICANTS WHO WOULD OFFER COMPETITION TO OLD MEMBERS HAVE A HARD ROAD
TO TRAVEL," AND THAT "A NEWSPAPER WITHOUT AP SERVICE IS MORE THAN
LIKELY TO BE AT A COMPETITIVE DISADVANTAGE." 

THESE CONCLUSIONS ARE WITHOUT SUPPORT IN THE RECORD OR IN THE
FINDINGS OF THE COURT BELOW, AND ARE UNSUPPORTED BY ANY FINDING BY THIS
COURT BASED UPON THE FACTS OF RECORD.  THIS CAN BE DEMONSTRATED. 

THE FINDINGS OF THE DISTRICT COURT, WHICH THIS COURT HAS NOT
MODIFIED, CRITICISED, OR OVERRULED, ESTABLISHED BEYOND CAVIL THAT,
DESPITE THE FACT THAT AP WAS EARLY IN THE FIELD AND HAS GROWN TO GREAT
SIZE, MANY OTHER REPORTING AGENCIES HAVE BEEN ESTABLISHED AND GROWN IN
THE UNITED STATES, TWO OF WHICH, UP AND INS, ARE NOW COMPARABLE TO AP
"IN SIZE, SCOPE OF COVERAGE AND EFFICIENCY."  ADDITIONAL AGENCIES WHICH
FURNISH SUBSTANTIAL NEWS-REPORTING SERVICES IN THE NATION TOTAL BETWEEN
TWENTY AND THIRTY.  STATISTICS CONCERNING THEM ARE NOT INCLUDED IN THE
RECORD, BUT IT IS EVIDENT THAT SOME, SINGLY, FURNISH SUBSTANTIAL
SERVICE, AND ALL, TAKEN TOGETHER, AFFORD A BROAD COVERAGE IN
COMPETITION WITH AP, UP AND INS, WIDELY USED IN THE NEWSPAPER WORLD. 
THEIR PAST GROWTH, AND THEIR OPPORTUNITY FOR EXPANSION, CONTRADICT THE
ASSUMPTION THAT AP HAS UNREASONABLY, OR IN SUBSTANTIAL MEASURE,
RESTRAINED FREE COMPETITION.  RATHER, ITS SUCCESS HAS STIMULATED OTHERS
TO ENTER THE FIELD AND TO COMPETE WITH IT. 

THE DISTRICT COURT FOUND:  "AP DOES NOT PREVENT OR HINDER NONMEMBER
NEWSPAPERS FROM OBTAINING ACCESS TO DOMESTIC AND FOREIGN HAPPENINGS AND
EVENTS."  NEWSPAPER PUBLISHERS DIFFER AS TO THE COMPARATIVE VALUE OF AP
AND OTHER SERVICES; MANY CHOOSE ONE IN PREFERENCE TO THE OTHER; SOME
HAVE RELINQUISHED ONE SERVICE AND ACQUIRED THE OTHER.  VAST NEWSPAPER
ENTERPRISES HAVE GROWN UP WHICH DEPEND ON SERVICES OTHER THAN THOSE
FURNISHED BY AP.  THESE INCLUDE METROPOLITAN NEWSPAPERS WITH
CIRCULATIONS RUNNING FROM TWO HUNDRED THOUSAND TO OVER A MILLION.  SOME
WHICH HAVE NOT USED AP REPORTS HAVE OUTSTRIPPED COMPETITORS WHO WERE
MEMBERS OF AP. 

THE UNCONTRADICTED EVIDENCE AND THE FINDINGS OF THE DISTRICT COURT
DISCLOSE, AMONGST OTHERS, THE FOLLOWING SIGNIFICANT FACTS:  IN 1942 THE
TOTAL EXPENDITURES OF AP AND ITS SUBSIDIARIES WERE $12,986,000, THOSE
OF UP AND ITS AFFILIATES $8,628,000, AND THOSE OF INS AND ITS
AFFILIATES $9,434,000.  THUS TWO COMPETITORS, FOUND BY THE COURT BELOW
TO BE IN EVERY WAY COMPARABLE WITH AP, TOGETHER EXPENDED OVER
$5,000,000 MORE IN THAT YEAR THAN AP.  IN THE SAME YEAR AP HAD 1,247
DOMESTIC AND 5 FOREIGN MEMBERS, UP HAD 981 DOMESTIC AND 391 FOREIGN
SUBSCRIBERS TO ITS SERVICES, AND INS, IN 1941, 338 DOMESTIC NEWSPAPER
SUBSCRIBERS AND 3 SUCH FOREIGN SUBSCRIBERS.  HERE AGAIN THE TOTAL
SUBSCRIBERS OF ITS TWO MOST SUBSTANTIAL COMPETITORS OUTNUMBERED AP'S
MEMBERSHIP IN BOTH THE DOMESTIC AND THE FOREIGN FIELD.  IN THE MATTER
OF SUPPLYING FEATURES, NEWS PICTURES, AND NEWS TO RADIO STATIONS, UP
AND INS WOULD EACH APPEAR TO HAVE AT LEAST AS MANY USERS AS AP,
ALTHOUGH THE PROOFS AND THE FINDINGS DO NOT AFFORD AN ACCURATE MEASURE
OF COMPARISON. 

MANY OF THE OTHER AGENCIES, AS WELL AS UP AND INS, MAKE CONTRACTS
WITH THEIR SUBSCRIBERS FOR THE EXCLUSIVE USE OF THEIR MATERIAL IN THE
SUBSCRIBER'S AREA AND FIELD.  BOTH UP AND INS MAKE WHAT ARE KNOWN AS
"ASSET VALUE" CONTRACTS WITH THEIR SUBSCRIBERS, UNDER THE TERMS OF
WHICH ANY NEWSPAPER IN THE SAME AREA AND FIELD MUST PAY TO THE EXISTING
SUBSCRIBER THE ASSET VALUE OF THAT SUBSCRIBER'S CONTRACT IN ORDER TO
OBTAIN THE SERVICE.  THUS ALL THESE AGENCIES RECOGNIZE THAT THE
EXCLUSIVE RIGHT TO PUBLISH THE NEWS FURNISHED THEIR MEMBERS OR
SUBSCRIBERS IS VALUABLE.  NEITHER AS RESPECTS AP, NOR ANY OF THE OTHER
AGENCIES, IS THERE A FINDING OR EVIDENCE THAT SUCH PROVISIONS WORK ANY
HINDRANCE OR RESTRAINT OF COMPETITION AS BETWEEN AGENCIES OR
NEWSPAPERS. 

AS RESPECTS COMPETITION BETWEEN NEWSPAPERS WHICH ARE MEMBERS OF AP
AND OTHERS, IT IS FOUND THAT NEWSPAPERS OF LARGE CIRCULATION IN LARGE
MUNICIPALITIES, AS WELL AS THOSE OF MEDIUM AND SMALL CIRCULATION, HAVE
THRIVEN AND GROWN WITHOUT AP SERVICE.  THE COURT BELOW SAID:  "UPON
THIS MOTION WE MUST TAKE IT AS IN DISPUTE WHETHER THE GENERAL OPINION
IN THE CALLING IS THAT THE SERVICE OF UP IS BETTER THAN THAT OF AP, OR
VICE VERSA."  NEWSPAPERS HAVE GIVEN UP AP SERVICE FOR THAT OF ITS
COMPETITORS.  MANY, IN VARYING LOCALITIES AND FIELDS, NOT ONLY BELONG
TO AP BUT PATRONIZE ONE OR MORE OF THE OTHER SERVICES, INCLUDING UP AND
INS.  SOME OF THE LARGEST AND MOST POWERFUL NEWSPAPERS IN THE NATION
HAVE GROWN TO BE SUCH WITHOUT AP SERVICE; NOT AN INSTANCE IS CITED
WHERE A PROPOSED NEWSPAPER WAS UNABLE TO START, OR HAS BEEN COMPELLED
TO SUSPEND, PUBLICATION FOR LACK OF IT.  THE RECORD CONTRADICTS THE
ASSERTION IN THE COURT'S OPINION THAT THE PROOF DEMONSTRATES "THE NET
EFFECT IS SERIOUSLY TO LIMIT THE OPPORTUNITY OF ANY NEW PAPER TO ENTER
THESE CITIES."  NO FINDING IN THESE TERMS WAS MADE BY THE DISTRICT
COURT.  A GREAT BULK OF THE MATERIAL TENDERED BY THE DEFENDANTS RUNS
COUNTER TO THE CONCLUSION; AND CERTAINLY, IN A SUMMARY JUDGMENT
PROCEEDING, TO DRAW SUCH A CONCLUSION FROM THE AVERMENTS PRO AND CON OF
THE PLEADINGS AND AFFIDAVITS IS TO IGNORE WHAT THIS COURT HAS SAID IS
PERMISSIBLE IN SUCH A PROCEEDING. 

THE COURT BELOW HAS FOUND THAT, "AT THE PRESENT TIME, ACCESS TO THE
NEWS REPORTS OF ONE OR MORE OF AP, UP, OR INS IS ESSENTIAL TO THE
SUCCESSFUL CONDUCT OF ANY SUBSTANTIAL NEWSPAPER SERVING THE GENERAL
READING PUBLIC."  IT IS TRUE ALSO THAT THE DISTRICT COURT FOUND,
REFERRING TO THESE THREE AGENCIES, THAT "OF THE THREE NEWS AGENCIES
...  AP RANKS IN THE FOREFRONT IN PUBLIC REPUTATION AND ESTEEM,"
WHATEVER THIS MAY MEAN.  IF IT MEANS THAT IT IS THOUGHT THE BEST OF THE
THREE, THIS WOULD NOT SEEM TO ADVANCE THE ARGUMENT.  IF IT MEANS THAT
AP IS THE LARGEST OF THE THREE IN EXPENDITURES, THIS ALSO IS TRUE BUT
IRRELEVANT.  WHATEVER THE SIGNIFICANCE OF THE FINDING, IT CERTAINLY IS
NOT A FINDING THAT AP HAS RESTRICTED OR LIMITED COMPETITION EITHER
BETWEEN NEWS AGENCIES OR NEWSPAPERS. 

IN ANOTHER ASPECT OF THE ISSUE OF RESTRAINT, THE OPINION IGNORES
IMPORTANT FACTS.  WHILE IT CORRECTLY STATES THAT, IN THE DAILY MORNING
FIELD, AP EMBRACES 81% IN NUMBER AND 96% IN CIRCULATION, IT FAILS TO
STATE THAT UP SERVES SUCH NEWSPAPERS REPRESENTING 40% IN NUMBER AND 64%
IN CIRCULATION.  AGAIN, IN RESPECT OF THE DAILY EVENING FIELD, WHEREAS
AP MEMBERS REPRESENT 59% IN NUMBER AND 77% IN CIRCULATION, UP ACCOUNTS
FOR 45% IN NUMBER AND 65% IN CIRCULATION.  IT WILL BE SEEN THAT THERE
IS DUPLICATION BECAUSE MANY NEWSPAPERS TAKE MORE THAN ONE OF THE
EXISTING SERVICES.  THUS, AS OF 1941, OF THE 373 DOMESTIC MORNING
ENGLISH-LANGUAGE DAILIES,  - WITH A TOTAL CIRCULATION OF 15,849,132,  -
152, WITH A TOTAL CIRCULATION OF 10,701,498, WERE SUBSCRIBERS OF UP,
AND 55, WITH A TOTAL CIRCULATION OF 4,149,929, WERE SUBSCRIBERS OF INS;
AND, OF THE 1,480 DOMESTIC DAILY EVENING ENGLISH-LANGUAGE NEWSPAPERS,
WITH A TOTAL CIRCULATION OF 19,616,674,  - 664, WITH A TOTAL
CIRCULATION OF 16,781,020, WERE SUBSCRIBERS OF UP, AND 206, WITH A
TOTAL CIRCULATION OF 8,608,180, WERE SUBSCRIBERS OF INS. 

THE RECORD INDICATES THAT, IN THE LARGE, THE EVENTS REPORTED BY THE
LEADING AGENCIES ARE THE SAME; THE DIFFERENCES BETWEEN THE REPORTS
BEING IN THE WAY THEY ARE WRITTEN.  INABILITY TO PERUSE AN AP REPORT,
THEREFORE, DOES NOT MEAN THAT THE READER FAILS TO OBTAIN KNOWLEDGE OF
WHAT IS HAPPENING, BUT OF A PARTICULAR REPORTER'S ACCOUNT OF THE
EVENT. 

FINALLY, THE RECORD CONTAINS AFFIDAVITS WHICH MUST, ON THE MOTION FOR
SUMMARY JUDGMENT, BE TAKEN AS TRUE, OF TWENTY-THREE PERSONS WHO ARE IN
THE NEWSPAPER BUSINESS.  THESE ARE TOO LENGTHY TO QUOTE.  IN GENERAL
THE TESTIMONY WAS TO THIS EFFECT:  TEN SAID THE UP SERVICE WAS ADEQUATE
AND COMPLETE; THIRTEEN SAID THAT AP SERVICE WAS NOT NECESSARY TO THE
SUCCESS OF A NEWSPAPER; ONE SAID THAT A NEWSPAPER WAS AT NO COMPETITIVE
DISADVANTAGE THROUGH LACK OF AP SERVICE; AND FIVE TESTIFIED THEIR
PAPERS, TO WHICH AP MEMBERSHIP WAS OPEN, ELECTED TO USE COMPETING
SERVICES.  AS OF SEPTEMBER 1941 MORE THAN 600 DOMESTIC NEWSPAPERS WHICH
WERE SUBSCRIBERS OF UP WERE NOT MEMBERS OF AP.  THE FACT IS THAT AP
DOES NOT ATTEMPT TO RESTRAIN ITS MEMBERS FROM TAKING SERVICES FROM
OTHER AGENCIES.  IT IS LITTLE WONDER THAT THE DISTRICT COURT REFRAINED
FROM FINDING THAT AP HAD UNDULY OR UNREASONABLY RESTRAINED COMPETITION
BETWEEN NEWS AGENCIES OR NEWSPAPERS. 

I CONCLUDE, THEREFORE, THAT THERE IS NO JUSTIFICATION FOR A HOLDING
THAT THE OPERATIONS OF AP MUST INEVITABLY RESULT, OR THAT ITS
ACTIVITIES HAVE IN FACT RESULTED, IN ANY UNDUE AND UNREASONABLE
RESTRAINT OF FREE COMPETITION IN ANY BRANCH OF TRADE OR COMMERCE. 

THIRD.  HAVE AP AND ITS MEMBERS INTENDED, OR ATTEMPTED, TO MONOPOLIZE
A BRANCH OF TRADE?  AS I HAVE ALREADY POINTED OUT, THE EVENTS HAPPENING
IN THE WORLD ARE AS OPEN TO ALL MEN AS THE AIR OR THE SUNLIGHT.  THE
ONLY AGENCY REQUIRED TO REPORT THEM IS A HUMAN BEING WHO WILL INQUIRE. 
SURELY THE SUPPLY OF REPORTERS IS NOT LESS DIFFICULT TO MONOPOLIZE THAN
THE EVENTS TO BE REPORTED. 

THE COURT BELOW REACHED CONCLUSIONS AS TO MONOPOLY WHICH WERE
REQUIRED BY THE RECORD: 

"AP DOES NOT MONOPOLIZE OR DOMINATE THE FURNISHING OF NEWS REPORTS,
NEWS PICTURES, OR FEATURES TO NEWSPAPERS IN THE UNITED STATES. 

"AP DOES NOT MONOPOLIZE OR DOMINATE ACCESS TO THE ORIGINAL SOURCES OF
NEWS. 

"AP DOES NOT MONOPOLIZE OR DOMINATE TRANSMISSION FACILITIES FOR THE
GATHERING OR DISTRIBUTION OF NEWS REPORTS, NEWS PICTURES, OR
FEATURES." 

IF THE OPINION OF THIS COURT MEANS TO SUGGEST THAT WHILE THE NEWS CAN
BE GATHERED BY ANYONE, BECAUSE NO ONE HAS, OR CAN HAVE, A MONOPOLY OF
THE EVENTS OF HISTORY, AP MONOPOLIZES THE SERVICES OF THOSE WHO REPORT
NEWS WHICH ITS ENERGIES AND EFFORTS HAVE EMPLOYED AND TRAINED (WHICH IS
NOT SHOWN), THEN, I SUBMIT, WE HAVE A NEW CONCEPT OF MONOPOLIZATION,
NAMELY, THAT WHERE SOME PERSON, OUT OF MATERIALS OPEN TO ALL, CREATES
HIS OWN PRODUCT, BY HIRING PERSONS TO PRODUCE IT, THAT PERSON MAY NOT
DETERMINE TO WHOM HE WILL SELL AND FROM WHOM HE WILL WITHHOLD THE
PRODUCT.  SUCH A CONCEPT CAN ONLY BE JUSTIFIED ON THE PUBLIC UTILITY
THEORY UPON WHICH THE COURT BELOW PROCEEDED, OF WHICH I SHALL SAY
SOMETHING LATER. 

IN SPITE OF THE QUOTED CONCLUSIONS OF THE DISTRICT COURT (AND NO
FACTS ARE CITED IN THIS COURT'S OPINION WHICH NEGATIVE THEIR ACCURACY),
I MUST TAKE IT THAT THE COURT INTENDS TO HOLD THAT THE PLEADINGS AND
PROOFS DISCLOSE, WITHOUT QUESTION, AN INTENT OR ATTEMPT TO MONOPOLIZE. 

I HAVE QUOTED THE FINDING MADE BELOW THAT AP DOES NOT PREVENT OR
HINDER NONMEMBER NEWSPAPERS FROM OBTAINING ACCESS TO DOMESTIC OR
FOREIGN NEWS.  THE FACTS AND FIGURES I HAVE CITED ABOVE INDICATE NO
INTENT OR ATTEMPT TO ABSORB THE ENTIRE FIELD OF NEWS GATHERING AND
REPORTING, TO EXCLUDE ALL OTHERS FROM THE FIELD, OR TO TAKE OVER THE
ENTIRE FIELD, TO THE END THAT NO NEWSPAPER OR COMBINATION OF NEWSPAPERS
CAN OBTAIN REPORTS OF THE NEWS.  PARAGRAPH 3 OF THE COMPLAINT CHARGES
AN ATTEMPT TO MONOPOLIZE A PART OF TRADE AND COMMERCE AND A COMBINATION
AND CONSPIRACY TO MONOPOLIZE THE SAME.  THE ANSWER SPECIFICALLY DENIES
THE ALLEGATION.  THE AMAZING GROWTH OF COMPETING AGENCIES, AND THEIR
SIZE, WOULD SEEM TO INDICATE THAT ANY SUCH SUPPOSED INTENT OR ATTEMPT
HAD BEEN ILL SERVED BY THE OPERATIONS OF AP.  AT ALL EVENTS, THERE IS
NO ROOM IN A SUMMARY JUDGMENT PROCEEDING, BASED ON THE FACTS OF RECORD,
FOR ANY SUCH FINDING.    FOURTH.  HAVE THE DEFENDANTS CREATED AN
ORGANIZATION OF SUCH PROPORTIONS AS IN FACT TO MONOPOLIZE ANY PART OF
TRADE OR COMMERCE?  IN ANSWERING THE INQUIRY I NEED DO LITTLE MORE THAN
REFER TO THE FACTS ALREADY SUMMARIZED.  THE OPINION SEEKS SUPPORT FOR A
HOLDING OF MONOPOLIZATION, BY REFERRING TO A FINDING OF THE DISTRICT
COURT, IN THESE WORDS: 

"AP IS A VAST, INTRICATELY RETICULATED ORGANIZATION, THE LARGEST OF
ITS KIND, GATHERING NEWS FROM ALL OVER THE WORLD, THE CHIEF SINGLE
SOURCE OF NEWS FOR THE AMERICAN PRESS, UNIVERSALLY AGREED TO BE OF
GREAT CONSEQUENCE." 

IT MAY BE CONCEDED THAT THE DESCRIPTIVE ADJECTIVES ARE NOT ILL
CHOSEN, BUT THE RECORD WOULD SUPPORT A LIKE FINDING WITH REFERENCE TO
UP AND INS, SAVE FOR THE PHRASES "LARGEST OF ITS KIND" AND "CHIEF." 
AND, UPON A FULL TRIAL, IT MAY WELL BE THAT EVIDENCE PRODUCED WOULD
INDUCE SIGNIFICANT FINDINGS WITH RESPECT TO SIZE AND ORGANIZATION OF
OTHER EXISTING NEWS AGENCIES.  UNTIL NOW IT HAS BEEN UNQUESTIONED THAT
SIZE ALONE DOES NOT BRING A BUSINESS ORGANIZATION WITHIN THE
CONDEMNATION OF THE SHERMAN ACT.  FN11  AND ANY CONSIDERATION AS TO
SIZE WOULD EQUALLY HOLD TRUE WHETHER THE DEFENDANT IS A SINGLE
CORPORATION DEALING WITH MANY PERSONS IN TRADE OR COMMERCE OR AN
INSTRUMENTALITY SET UP BY A NUMBER OF BUSINESS ENTERPRISES TO SERVE
THEM ALL ON A COOPERATIVE BASIS.  THE ARGUMENT OF THE GOVERNMENT SEEMS
TO ASSUME THAT UP AND INS, INDEPENDENT CORPORATIONS, IN SPITE OF THEIR
SIZE, ARE NOT MONOPOLIES OR ATTEMPTS TO MONOPOLIZE BECAUSE THEY DEAL AT
ARM'S LENGTH WITH THEIR PATRONS WHEREAS THERE IS SOMETHING SINISTER
ABOUT AP BECAUSE IT DEALS ON THE SAME TERMS WITH ITS OWN MEMBERS.  I
CANNOT PERCEIVE HOW, IF AP FALLS WITHIN THE DENUNCIATION OF THE
STATUTE, UP AND INS DO NOT EQUALLY, AND BY THE SAME TEST.  NO
SIGNIFICANT FEATURE OF THE PRACTICES OF THE ONE IS ABSENT IN THOSE OF
THE OTHERS. 

FIFTH.  THE COURT'S OPINION, UNDER THE GUISE OF ENFORCING THE SHERMAN
ACT, IN FACT RENDERS AP A PUBLIC UTILITY SUBJECT TO THE DUTY TO SERVE
ALL ON EQUAL TERMS.  THIS MUST BE SO, DESPITE THE DISAVOWAL OF ANY SUCH
GROUND OF DECISION.  THE DISTRICT COURT MADE THIS PUBLIC UTILITY THEORY
THE SOLE BASIS OF DECISION, BECAUSE IT WAS UNABLE TO FIND SUPPORT FOR A
CONCLUSION THAT AP EITHER INTENDED OR ATTEMPTED TO, OR IN FACT DID,
UNREASONABLY RESTRAIN TRADE OR MONOPOLIZE OR ATTEMPT TO MONOPOLIZE ALL
OR ANY PART OF ANY BRANCH OF TRADE WITHIN THE DECISIONS OF THIS COURT
INTERPRETING AND APPLYING THE SHERMAN ACT.  REALIZING THE LACK OF
SUPPORT FOR ANY OTHER, THE GOVERNMENT URGES THAT THE DISTRICT COURT'S
GROUND OF DECISION IS SOUND AND THAT THIS COURT SHOULD ADOPT IT.  JUDGE
SWAN, IN HIS DISSENT BELOW, HAS SUFFICIENTLY DISPOSED OF THIS POINT,
FN12  AND I REFER TO HIS OPINION, IN WHICH I CONCUR, WITHOUT QUOTING OR
PARAPHRASING IT. 

SUFFICE IT TO SAY THAT IT IS A NOVEL APPLICATION OF THE SHERMAN ACT
TO TREAT IT AS LEGISLATION CONVERTING AN ORGANIZATION, WHICH NEITHER
RESTRAINS TRADE NOR MONOPOLIZES IT, NOR HOLDS ITSELF OUT TO SERVE THE
PUBLIC GENERALLY, INTO A PUBLIC UTILITY BECAUSE IT FURNISHES A NEW SORT
OF ILLUMINATION - LITERARY AS CONTRASTED WITH PHYSICAL - BY PRONOUNCING
A FIAT THAT THE INTEREST OF CONSUMERS - THE READING PUBLIC - NOT THAT
OF COMPETING NEWS AGENCIES OR NEWSPAPER PUBLISHERS - REQUIRES EQUAL
SERVICE TO ALL NEWSPAPERS ON THE PART OF AP AND THAT A COURT OF EQUITY,
IN THE GUISE OF AN INJUNCTION, SHALL WRITE THE REQUISITE REGULATORY
STATUTE.  THIS IS GOVERNMENT-BY-INJUNCTION WITH A VENGEANCE. 

MOREOVER IT IS TO MAKE A NEW STATUTE BY COURT DECISION.  THE SHERMAN
ACT DOES NOT DEAL WITH PUBLIC UTILITIES AS SUCH.  THEY MAY VIOLATE THE
ACT, AS MAY PERSONS ENGAGED IN PRIVATE BUSINESS.  BUT THAT ACT NEVER
WAS INTENDED AND HAS NEVER BEFORE BEEN THOUGHT TO REQUIRE A PRIVATE
CORPORATION, NOT HOLDING ITSELF OUT TO SERVE THE PUBLIC, WHOSE
OPERATIONS NEITHER WERE INTENDED TO NOR TENDED UNREASONABLY TO RESTRAIN
OR MONOPOLIZE TRADE, TO FULFILL THE DUTY INCIDENT TO A PUBLIC CALLING,
OF SERVING ALL APPLICANTS ON EQUAL TERMS. 

FOR MYSELF, I PREFER TO ENTRUST REGULATORY LEGISLATION OF COMMERCE TO
THE ELECTED REPRESENTATIVES OF THE PEOPLE, INSTEAD OF FREEZING IT IN
THE DECREES OF COURTS LESS RESPONSIVE TO THE PUBLIC WILL.  I STILL
BELIEVE THAT "THE COURTS ARE WITHOUT AUTHORITY EITHER TO DECLARE SUCH
POLICY, OR, WHEN IT IS DECLARED BY THE LEGISLATURE, TO OVERRIDE IT." 
FN13 

BUT MORE, THE COURTS ARE UNFIT INSTRUMENTS TO MAKE AND IMPLEMENT SUCH
POLICY.  A WISE JUDGE HAS SAID IN A CASE BROUGHT BY AP TO REDRESS THE
ALLEGED WRONG OF INS IN "PIRATING" AP'S NEWS:  FN14 

"COURTS ARE ILL-EQUIPPED TO MAKE THE INVESTIGATIONS WHICH SHOULD
PRECEDE A DETERMINATION OF THE LIMITATIONS WHICH SHOULD BE SET UPON ANY
PROPERTY RIGHT IN NEWS OR OF THE CIRCUMSTANCES UNDER WHICH NEWS
GATHERED BY A PRIVATE AGENCY SHOULD BE DEEMED AFFECTED WITH A PUBLIC
INTEREST.  COURTS WOULD BE POWERLESS TO PRESCRIBE THE DETAILED
REGULATIONS ESSENTIAL TO FULL ENJOYMENT OF THE RIGHTS CONFERRED OR TO
INTRODUCE THE MACHINERY REQUIRED FOR ENFORCEMENT OF SUCH REGULATIONS. 
CONSIDERATIONS SUCH AS THESE SHOULD LEAD US TO DECLINE TO ESTABLISH A
NEW RULE OF LAW IN THE EFFORT TO REDRESS A NEWLY-DISCLOSED WRONG,
ALTHOUGH THE PROPRIETY OF SOME REMEDY APPEARS TO BE CLEAR." 

THE CONSIDERATIONS WHICH LED TO THE CONCLUSION ARE PERSUASIVELY
STATED IN THE PRECEDING PAGES OF THE CITED OPINION. 

THE OPINION ASSERTS THAT, WHATEVER THE COURT BELOW HAS SAID, THIS
COURT DOES NOT ADOPT ITS REASONS FOR THE DECREE ENTERED, BUT SUSTAINS
ITS ACTION UPON THE BASIS OF RESTRAINT AND MONOPOLY VIOLATIVE OF A
PROHIBITORY LAW.  I THINK, HOWEVER, THIS IS TOO SUPERFICIAL A
CONCLUSION.  THE FACT REMAINS, AS THE COURT BELOW CONCEDES, THAT THE
ROLE ESSAYED "IS ORDINARILY 'LEGISLATIVE.'"  FN15 

FROM NOW ON, AP IS TO OPERATE UNDER THE TUTELAGE OF THE COURT.  IT IS
ORDERED TO SUBMIT FOR APPROVAL A REVISION OF ITS BY-LAWS, AND, UNLESS
THE COURT APPROVES THE CHANGES, IT IS TO BE RESTRAINED FROM CONTRACTING
WITH ITS MEMBERS THAT THEY SHALL NOT DISCLOSE THE NEWS IT FURNISHES,
AND FROM CONTINUING ITS EXISTING CONTRACT RELATIONS WITH A CANADIAN
NEWS AGENCY, BOTH OF WHICH ARE HELD, IN AND OF THEMSELVES AND APART
FROM THE ALLEGED ILLEGALITIES OF THE BY-LAWS, INNOCENT AND LEGAL. 
HOWEVER THE BY-LAWS MAY BE AMENDED, AND WHATEVER JUDICIAL BLESSING MAY
BE GIVEN THE NEW TEXT, IT IS CERTAIN THAT EVERY REFUSAL TO DEAL WITH
ANY NEWSPAPER WILL EVOKE A FRESH EXERCISE OF THE JUDICIAL
GUARDIANSHIP.  LAWFUL PRACTICES MAY BE THREATENED WITH INJUNCTION, AS
THEY ARE IN THE PRESENT DECREE, AS A LEVER TO COMPEL OBEDIENCE IN SOME
RESPECT THOUGHT IMPORTANT BY THE COURT. 

THE DECREE MAY WELL RESULT NOT IN FREER COMPETITION BUT IN A MONOPOLY
IN AP OR UP, OR IN SOME RESULTING AGENCY, AND THUS FORCE FULL AND
COMPLETE REGIMENTATION OF ALL NEWS SERVICE TO THE PEOPLE OF THE
NATION.  THE DECREE HERE APPROVED MAY WELL BE, AND I THINK THREATENS TO
BE, BUT A FIRST STEP IN THE SHACKLING OF THE PRESS, WHICH WILL SUBVERT
THE CONSTITUTIONAL FREEDOM TO PRINT OR TO WITHHOLD, TO PRINT AS AND HOW
ONE'S REASON OR ONE'S INTEREST DICTATES.  WHEN THAT TIME COMES, THE
STATE WILL BE SUPREME AND FREEDOM OF THE STATE WILL HAVE SUPERSEDED
FREEDOM OF THE INDIVIDUAL TO PRINT, BEING RESPONSIBLE BEFORE THE LAW
FOR ABUSE OF THE HIGH PRIVILEGE. 

IT IS NOT PROTECTING A FREEDOM, BUT CONFINING IT, TO PRESCRIBE WHERE
AND HOW AND UNDER WHAT CONDITIONS ONE MUST IMPART THE LITERARY PRODUCT
OF HIS THOUGHT AND RESEARCH.  THIS IS FETTERING THE PRESS, NOT STRIKING
OFF ITS CHAINS. 

THE EXISTING SITUATION WITH RESPECT TO RADIO POINTS THE MORAL OF WHAT
I HAVE SAID.  IN THAT FIELD CONGRESS HAS IMPOSED REGULATION BECAUSE, IN
CONTRAST TO THE PRESS, THE PHYSICAL CHANNELS OF COMMUNICATION ARE
LIMITED, AND CHAOS WOULD RESULT FROM UNRESTRAINED AND UNREGULATED USE
OF SUCH CHANNELS.  BUT IN IMPOSING REGULATION, CONGRESS HAS REFRAINED
FROM ANY RESTRAINT ON OWNERSHIP OF NEWS OR INFORMATION OR THE RIGHT TO
USE IT.  AND ANY REGULATION OF THIS MAJOR SOURCE OF INFORMATION, IN THE
LIGHT OF THE CONSTITUTIONAL GUARANTEE OF FREE SPEECH, SHOULD BE CLOSELY
AND JEALOUSLY EXAMINED BY THE COURTS. 

THE COURT GOES FAR AFIELD IN CITING ASSOCIATED PRESS V. LABOR BOARD,
301 U.S. 103, AND INDIANA FARMER'S GUIDE CO. V. PRAIRIE FARMER CO., 293
U.S. 268, AS JUSTIFYING THE DECREE.  APART FROM THE FACT THAT THE
POLICY AND THE IMPLEMENTING REGULATION INVOLVED IN THE ASSOCIATED PRESS
CASE WAS THAT DECLARED BY CONGRESS, NOT COURT-MADE, IT IS PLAIN FROM
THE OPINION THAT THE FREEDOM TO PUBLISH OR TO REFRAIN FROM PUBLISHING,
THE CONTROL OF ITS NEWS BY AP AND THE ENTIRE CONDUCT OF ITS BUSINESS,
SAVE ONLY ITS DUTY TO DEAL WITH EMPLOYEES AS A CLASS, WAS UNTOUCHED. 
FN16 IN THE FARMER'S GUIDE CASE ALL THAT WAS DECIDED WAS THAT THE
NEWSPAPERS THERE IN QUESTION WERE ENGAGING IN INTERSTATE COMMERCE AND
THAT NEWSPAPERS, LIKE OTHER BUSINESS ENTERPRISES, CAN VIOLATE THE
SHERMAN ACT BY UNREASONABLY RESTRAINING OR MONOPOLIZING COMMERCE IN
MORE THAN ONE STATE.  I SHOULD BE THE LAST TO DENY THE CORRECTNESS OF
THESE PROPOSITIONS.  BUT, AS I HAVE ALREADY SAID, WHEN THAT CASE CAME
TO BE RETRIED, IT WAS FOUND THAT THE CONCERT OF ACTION IN JOINT
SOLICITATION OF ADVERTISING AND GRANTING A REDUCED RATE FOR IT IF
PLACED IN ALL THE JOURNALS IN THE COMBINATION VIOLATED NONE OF THE
PROVISIONS OF THE ACT.  FN17 

FN1  THE ARGUMENT DRAWN FROM THE CONGRESSIONAL EXEMPTION OF FARMERS'
COOPERATIVES FROM THE SWEEP OF THE SHERMAN ACT FALLS SHORT, SINCE SUCH
COOPERATIVES OFTEN ARE NOT MERE JOINT PURCHASING AGENCIES OF THINGS
NEEDED AND USED BY THE MEMBERS, BUT ARE MARKETING AGENCIES WHICH MAY BE
THOUGHT TO RESTRAIN COMMERCE AND TEND TOWARD MONOPOLY.  IT WAS TO
SAFEGUARD THE LATTER SORT OF ACTIVITY THAT THE EXEMPTION WAS GRANTED. 

FN2  "A COOPERATIVE ENTERPRISE, OTHERWISE FREE FROM OBJECTION, WHICH
CARRIES WITH IT NO MONOPOLISTIC MENACE, IS NOT TO BE CONDEMNED AS AN
UNDUE RESTRAINT  ..."  APPALACHIAN COALS V. UNITED STATES, 288 U.S.
344, 373-4. 

FN3  PRAIRIE FARMER CO. V. INDIANA FARMER'S GUIDE CO., 88 F.2D 979,
CERT. DENIED 301 U.S. 696; REHEARING DENIED 302 U.S. 773. 

FN4  BOARD OF TRADE V. CHRISTIE GRAIN & STOCK CO., 198 U.S. 236, 251,
252; HUNT V. NEW YORK COTTON EXCHANGE, 205 U.S. 322, 333; UNITED STATES
V. NEW YORK COFFEE EXCHANGE, 263 U.S. 611, 619; MOORE V. NEW YORK
COTTON EXCHANGE, 270 U.S. 593, 604, 607. 

FN5  INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS, 248 U.S. 215. 

FN6  "...  IT IS NO VIOLATION OF THE ANTI-TRUST ACT FOR A GROUP OF
NEWSPAPERS TO FORM AN ASSOCIATION TO COLLECT AND DISTRIBUTE NEWS FOR
THEIR COMMON BENEFIT, AND TO THAT END TO AGREE TO FURNISH THE NEWS
COLLECTED BY THEM ONLY TO EACH OTHER OR TO THE ASSOCIATION; PROVIDED
THAT NO ATTEMPT IS MADE TO PREVENT THE MEMBERS FROM PURCHASING OR
OTHERWISE OBTAINING NEWS FROM RIVAL AGENCIES.  AND IF THAT IS TRUE THE
COROLLARY MUST BE TRUE, NAMELY, THAT NEWSPAPERS DESIRING TO FORM AND
MAINTAIN SUCH AN ORGANIZATION MAY DETERMINE WHO SHALL BE AND WHO SHALL
NOT BE THEIR ASSOCIATES."  (LETTER OF ATTORNEY GENERAL GREGORY OF MARCH
12, 1915.) 

FN7  IT WAS ONLY IN THIS LIMITED SENSE THAT THE COURT BELOW FOUND
THAT THE BY-LAWS LIMITED COMPETITION. 

FN8  STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 59-62; UNITED
STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 178-179; UNITED STATES V.
TERMINAL R. ASSN., 224 U.S. 383, 394-395; CHICAGO BOARD OF TRADE V.
UNITED STATES, 246 U.S. 231, 238-239; MAPLE FLOORING MFRS.  ASSN.  V.
UNITED STATES, 268 U.S. 563, 582; APPALACHIAN COALS V. UNITED STATES,
288 U.S. 344, 359-361, 375, 376-7; SUGAR INSTITUTE V. UNITED STATES,
297 U.S. 553, 597-600; INTERSTATE CIRCUIT V. UNITED STATES, 306 U.S.
208, 230-232. 

FN9  CHICAGO BOARD OF TRADE V. UNITED STATES, SUPRA, 238; APPALACHIAN
COALS V. UNITED STATES, SUPRA, 361. 

FN10  OREGON STEAM NAVIGATION CO. V. WINSOR, 20 WALL.  64; CINCINNATI
PACKET CO. V. BAY, 200 U.S. 179, 184, 185; UNITED STATES V. GENERAL
ELECTRIC CO., 272 U.S. 476; UNITED STATES V. BAUSCH & LOMB CO., 321
U.S. 707. 

FN11  UNITED STATES V. UNITED STATES STEEL CORP., 251 U.S. 417, 451;
UNITED STATES V. INTERNATIONAL HARVESTER CO., 274 U.S. 693, 707. 

FN12  52 F.SUPP.  375. 

FN13  NEBBIA V. NEW YORK, 291 U.S. 502, 537. 

FN14  INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS, 248 U.S. 215,
267. 

FN15  52 F.SUPP.  370. 

FN16  SEE 301 U.S. 132-3. 

FN17  SUPRA, NOTE 3. 

THE CHIEF JUSTICE JOINS IN THIS OPINION. 

MR. JUSTICE MURPHY, DISSENTING. 

               I 

IF IT WERE MADE CLEAR BY THE UNDISPUTED FACTS THAT, BY ADOPTING THEIR
BY-LAWS, THE MEMBERS OF THE ASSOCIATED PRESS WERE ENGAGED IN A PROGRAM
TO HAMPER OR DESTROY COMPETITION, I COULD ACCEPT THE DECISION REACHED
BY THE COURT.  BUT THE EVIDENCE INTRODUCED, IN MY OPINION, FALLS FAR
SHORT OF PROVING SUCH A PROGRAM AND HENCE THE DECISION HAS GRAVE
IMPLICATIONS RELATIVE TO GOVERNMENTAL RESTRAINTS ON A FREE PRESS. 

AS I VIEW THE SITUATION, THE MEMBERS OF THE ASSOCIATED PRESS WERE
ENTIRELY WITHIN THEIR LEGAL RIGHTS IN FORMING A COOPERATIVE
ORGANIZATION WITH FACILITIES FOR THE COLLECTION AND EXCHANGE OF NEWS
AND IN LIMITING THE MEMBERSHIP THEREIN.  MEMBERS OF AN INCORPORATED
SOCIETY, AS A GENERAL RULE, MAY EXTEND THE PRIVILEGE OF MEMBERSHIP OR
WITHHOLD IT ON SUCH TERMS AS THEY SEE FIT.  AND IF EXCLUSIVE ACCESS TO
THESE FACILITIES AND REPORTS GAVE THE MEMBERS OF THE ASSOCIATED PRESS A
COMPETITIVE ADVANTAGE OVER BUSINESS RIVALS WHO WERE NOT MEMBERS, THAT
ALONE WOULD NOT MAKE THE ADVANTAGE UNLAWFUL.  IN RESTRICTING THE
ADMISSION OF BUSINESS RIVALS THEY WERE MERELY TRYING TO PRESERVE FOR
THEMSELVES AN ADVANTAGE THAT HAD ACCRUED TO THEM FROM THE EXERCISE OF
BUSINESS SAGACITY AND FORESIGHT.  SUCH AN ADVANTAGE, AS I SEE IT, IS
NOT A VIOLATION OF THE SHERMAN ACT.  NOR DOES THIS ADVANTAGE REQUIRE
THE ASSOCIATED PRESS TO SHARE ITS PRODUCTS WITH COMPETITORS.  SUCH A
DOCTRINE WOULD DISCOURAGE COMPETITIVE ENTERPRISE AND WOULD CARRY THE
ANTI-TRUST LAWS TO ABSURD LENGTHS.  IN THE WORDS OF THE COURT BELOW, "A
COMBINATION MAY BE WITHIN ITS RIGHTS, ALTHOUGH IT OPERATES TO THE
PREJUDICE OF OUTSIDERS WHOM IT EXCLUDES."  52 F.SUPP.  362, 369. 
THUS FOR THE FIRST TIME THE COURT TODAY USES THE SHERMAN ACT TO OUTLAW
A REASONABLE COMPETITIVE ADVANTAGE GAINED WITHOUT THE BENEFIT OF ANY OF
THE EVILS THAT CONGRESS HAD IN MIND WHEN IT ENACTED THIS STATUTE.  ON
THE MAIN ISSUE BEFORE US, THE RECORD SHOWS A COMPLETE ABSENCE OF ANY
MONOPOLY, DOMINATION, PRICE FIXING, COERCION OR OTHER PREDATORY
PRACTICES BY WHICH COMPETITION IS ELIMINATED TO THE INJURY OF THE
PUBLIC INTEREST.  APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 491-501. 
AND THE DISTRICT COURT WAS UNABLE TO FIND OTHERWISE.  NOTHING APPEARS
SAVE A LARGE, SUCCESSFUL ORGANIZATION WHICH HAS ATTEMPTED TO PROTECT
THE FRUITS OF ITS OWN ENTERPRISE FROM USE BY COMPETITORS.  TO CONCLUDE
ON SUCH EVIDENCE THAT THE ASSOCIATED PRESS HAS VIOLATED THE SHERMAN ACT
IS TO IGNORE THE REPEATED HOLDINGS OF THIS COURT THAT THE PURPOSE OF
THE STATUTE IS TO MAINTAIN FREE COMPETITION IN INTERSTATE COMMERCE AND
TO ELIMINATE ONLY THOSE RESTRAINTS THAT UNREASONABLY INHIBIT SUCH
COMPETITION. 

              II 

TODAY IS ALSO THE FIRST TIME THAT THE SHERMAN ACT HAS BEEN USED AS A
VEHICLE FOR AFFIRMATIVE INTERVENTION BY THE GOVERNMENT IN THE REALM OF
DISSEMINATION OF INFORMATION.  AS THE GOVERNMENT STATES, THIS IS AN
ATTEMPT TO REMOVE "BARRIERS ERECTED BY PRIVATE COMBINATION AGAINST
ACCESS TO REPORTS OF WORLD NEWS."  THAT NEWSPAPERS AND NEWS AGENCIES
ARE ENGAGED IN BUSINESS FOR PROFIT IS BEYOND DISPUTE.  AND IT IS
UNDENIABLE THAT THE ASSOCIATED PRESS AND OTHER PRESS ASSOCIATIONS CAN
CLAIM NO IMMUNITY FROM THE APPLICATION OF THE GENERAL LAWS OR OF THE
SHERMAN ACT IN PARTICULAR.  ASSOCIATED PRESS V. LABOR BOARD, 301 U.S.
103, 132-133.  BUT AT THE SAME TIME IT IS CLEAR THAT THEY ARE ENGAGED
IN COLLECTING AND DISTRIBUTING NEWS AND INFORMATION RATHER THAN IN
MANUFACTURING AUTOMOBILES, ALUMINUM OR GASOLINE.  WE CANNOT AVOID THAT
FACT.  NOR CAN WE ESCAPE THE FACT THAT GOVERNMENTAL ACTION DIRECTLY
AIMED AT THE METHODS OR CONDITIONS OF SUCH COLLECTION OR DISTRIBUTION
IS AN INTERFERENCE WITH THE PRESS, HOWEVER DIFFERING IN DEGREE IT MAY
BE FROM GOVERNMENTAL RESTRAINTS ON WRITTEN OR SPOKEN UTTERANCES
THEMSELVES. 

THE TRAGIC HISTORY OF RECENT YEARS DEMONSTRATES FAR TOO WELL HOW
DESPOTIC GOVERNMENTS MAY INTERFERE WITH THE PRESS AND OTHER MEANS OF
COMMUNICATION IN THEIR EFFORTS TO CORRUPT PUBLIC OPINION AND TO DESTROY
INDIVIDUAL FREEDOM.  EXPERIENCE TEACHES US TO HESITATE BEFORE CREATING
A PRECEDENT IN WHICH MIGHT LURK EVEN THE SLIGHTEST JUSTIFICATION FOR
SUCH INTERFERENCE BY THE GOVERNMENT IN THESE MATTERS.  PROOF OF THE
JUSTIFICATION AND NEED FOR THE USE OF THE SHERMAN ACT TO LIBERATE AND
REMOVE UNREASONABLE IMPEDIMENTS FROM THE CHANNELS OF NEWS DISTRIBUTION
SHOULD THEREFORE BE CLEAR AND UNMISTAKABLE.  ONLY THEN CAN THE
PRECEDENT AVOID BEING A DANGEROUS ONE AUTHORIZING THE USE OF THE
SHERMAN ACT FOR UNJUSTIFIED GOVERNMENTAL INTERFERENCE WITH THE
DISTRIBUTION OF INFORMATION. 

THIS DOES NOT MEAN THAT THE ASSOCIATED PRESS IS ENTITLED TO ANY
PREFERENTIAL TREATMENT UNDER THE SHERMAN ACT OR THAT THE GOVERNMENT
MUST MEET ANY HIGHER DEGREE OF PROOF OF A STATUTORY VIOLATION WHEN
DEALING WITH THE PRESS THAN WHEN DEALING WITH ANY OTHER FIELD OF
COMMERCIAL ENDEAVOR.  CLEAR AND UNMISTAKABLE PROOF OF A SHERMAN ACT
VIOLATION, ESPECIALLY WHERE A SUMMARY JUDGMENT PROCEDURE IS FOLLOWED,
IS NECESSARY IN ANY CASE.  AND FAILURE TO INSIST UPON COMPLIANCE WITH
THAT STANDARD OF PROOF IS UNWISE UNDER ANY CIRCUMSTANCES.  BUT SUCH A
FAILURE HAS UNUSUALLY DANGEROUS IMPLICATIONS WHEN IT APPEARS WITH
REFERENCE TO AN ALLEGED VIOLATION OF THE ACT BY THOSE WHO COLLECT AND
DISTRIBUTE INFORMATION.  WE SHOULD THEREFORE BE PARTICULARLY VIGILANT
IN REVIEWING A CASE OF THIS NATURE, A VIGILANCE THAT APPARENTLY IS NOT
SHARED BY THE COURT TODAY. 

AS APPLIED TO THE SHERMAN ACT, THIS MEANS THAT AN ALLEGATION BY THE
GOVERNMENT THAT A MONOPOLY OR RESTRAINT OF TRADE EXISTS IN THE BUSINESS
OF COLLECTING AND DISTRIBUTING INFORMATION SHOULD BE PROVED BY CLEAR
EVIDENCE AFTER A FULL CANVASS OF ALL THE PERTINENT FACTS.  NOTHING
SHOULD BE LEFT TO SPECULATION, DOUBT OR SURMISE.  NOR CAN CONJECTURES
AS TO PROBABILITIES OR INEVITABLE CONSEQUENCES REPLACE PROOF OF THE
ACTUAL OR POTENTIAL EXISTENCE OF MONOPOLIES OR RESTRAINTS.  IN OTHER
WORDS, BEFORE THE GOVERNMENT IS ENTITLED TO ENJOIN A COMBINATION OR
CONSPIRACY ALLEGED TO BE IN RESTRAINT OF NEWS DISSEMINATION IT MUST BE
SHOWN BY COMPETENT EVIDENCE THAT SUCH COMBINATION OR CONSPIRACY HAS IN
FACT RESULTED IN RESTRAINTS OR WILL INEVITABLY PRODUCE ACTUAL
RESTRAINTS IN THE FUTURE.  FULL OPPORTUNITY SHOULD BE ACCORDED THE
PARTIES TO CROSS-EXAMINE AND REBUT ALL THE EVIDENCE ADDUCED ON BOTH
SIDES OF THE LITIGATION.  SUCH WOULD BE THE REQUIREMENTS IN ANY SUIT
UNDER THE SHERMAN ACT AGAINST THOSE WHO SELL FOOD, STEEL OR FURNITURE,
AND NO COGENT REASON IS APPARENT FOR APPLYING LESS STRINGENT
REQUIREMENTS WHEN DEALING WITH THE BUSINESS OF THE PRESS.  INDEED, THE
VERY NATURE OF THE NEWSPAPER BUSINESS IS A COMPELLING REASON FOR A
STRICT ADHERENCE TO THESE REQUIREMENTS.  ANY POSSIBLE USE OF THE
SHERMAN ACT AS A READY VEHICLE FOR UNJUSTIFIED GOVERNMENTAL
INTERFERENCE IN THE DISSEMINATION OF NEWS IS THUS AVOIDED BY INSISTENCE
UPON THESE ELEMENTAL STANDARDS OF PROOF AND FAIRNESS OF PROCEDURE.  THE
ACTUAL AND POTENTIAL DANGERS IN ANY SUCH INTERFERENCE GREATLY OUTWEIGH
ANY PUBLIC INTEREST IN DESTROYING AN ABANDONED, INEFFECTIVE OR ABORTIVE
SCHEME THAT APPEARS AT FIRST GLANCE TO RESTRAIN COMPETITION AMONG
NEWSPAPERS. 

ACCORDINGLY I AM UNABLE TO AGREE THAT THIS CASE SHOULD BE DISPOSED OF
IN FAVOR OF THE GOVERNMENT ON A MOTION FOR SUMMARY JUDGMENT.  THE
ISSUES ARE TOO GRAVE AND THE POSSIBLE CONSEQUENCES ARE TOO UNCERTAIN
NOT TO REQUIRE THE GOVERNMENT TO PROVE ITS CASE BY MORE PROBATIVE AND
CONVINCING EVIDENCE THAN IT HAS SUBMITTED SO FAR.  THE ADMITTED FACTS
ARE EITHER INCONCLUSIVE OR DEFINITELY LEAN IN FAVOR OF THE CONTENTIONS
OF THE ASSOCIATED PRESS.  THESE ADMITTED FACTS, IN MY ESTIMATION, DO
NOT CONSTITUTE SUCH CLEAR EVIDENCE OF AN ALLEGED RESTRAINT OF TRADE AS
TO JUSTIFY THE PROPOSED INTERFERENCE BY THE GOVERNMENT IN THE
ASSOCIATED PRESS MEMBERSHIP RULES WHICH UNDERLIE THE DISTRIBUTION OF
ASSOCIATED PRESS DISPATCHES.  THEY DO NOT JUSTIFY THE CONCLUSION THAT
THE ASSOCIATED PRESS BY-LAWS ON THEIR FACE, AND WITHOUT REGARD TO THEIR
PAST EFFECT, WILL "NECESSARILY" RESULT IN UNLAWFUL RESTRAINTS.  IT MAY
WELL BE THAT THESE BY-LAWS WILL RESTRAIN TRADE AND OUGHT TO BE ENJOINED
BUT I AM UNWILLING TO REACH THAT CONCLUSION WITHOUT REQUIRING THE
PARTIES AND THE COURT BELOW TO EXAMINE THE FACTS MORE THOROUGHLY,
HAVING IN MIND THE DANGEROUS IMPLICATIONS INHERENT IN THIS SITUATION
AND THE CLARITY OF PROOF THAT THE GOVERNMENT SHOULD PRESENT. 

                            III 

THE NUB OF THE COMPLAINT AGAINST THE ASSOCIATED PRESS IS THAT ITS BY
LAWS (1) ALLOW DISCRIMINATION IN THE CONDITION OF ADMISSION BASED UPON
THE FACTOR OF AN APPLICANT'S COMPETITION WITH A PRESENT MEMBER, AND (2)
ENFORCE SUCH DISCRIMINATORY EXCLUSION THROUGH A NON-TRADING AGREEMENT
AMONG MEMBERS, AN AGREEMENT WHICH THE COURT BELOW FOUND TO BE
REASONABLE WHEN CONSIDERED SEPARATELY.  IN OTHER WORDS, THESE BY-LAW
PROVISIONS ARE SAID TO CONSTITUTE A COMBINATION FOR THE PURPOSE OF
EXCLUDING COMPETITORS FROM THAT PART OF THE MARKET WITHIN THE SCOPE OF
THE AGREEMENT AND HENCE BE AN UNREASONABLE RESTRAINT OF TRADE WITHIN
THE WELL-SETTLED MEANING OF THE SHERMAN ACT. 

IT MAY BE CONCEDED THAT THESE BY-LAW PROVISIONS ON THEIR FACE ARE
RESTRICTIVE IN NATURE AND THAT THEIR NATURAL EFFECT IS TO EXCLUDE
OUTSIDE NEWSPAPERS FROM THE BENEFITS OF ASSOCIATED PRESS MEMBERSHIP. 
BUT THAT CONCESSION DOES NOT PROVE THAT THESE PROVISIONS ARE
NECESSARILY SO UNREASONABLE IN NATURE AS TO BE A RESTRAINT OF THE TYPE
CLEARLY CONDEMNED BY THE ACT.  THEY MAY BE REGARDED ON THIS RECORD AS
NOTHING MORE THAN THE EXERCISE OF A TRADER'S RIGHT ARBITRARILY TO
CHOOSE HIS OWN ASSOCIATES AND TO PROTECT THE FRUITS OF HIS OWN
ENTERPRISE FROM USE BY COMPETITORS.  UNITED STATES V. COLGATE & CO.,
250 U.S. 300, 307; INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS, 248
U.S. 215, 235.  ANY FRUSTRATION OF COMPETITION THAT MIGHT RESULT FROM
SUCH AN EXERCISE IS A NORMAL INCIDENT OF TRADE IN A COMPETITIVE
ECONOMY, A LAWFUL OBJECTIVE OF BUSINESS ENTERPRISE.  CERTAINLY THE
SHERMAN ACT WAS NOT DESIGNED TO DISCOURAGE MEN FROM COMBINING THEIR
TALENTS AND RESOURCES IN ORDER TO OUTDO THEIR RIVALS BY PRODUCING
BETTER GOODS AND SERVICES.  IT WAS MEANT TO FOSTER RATHER THAN TO
THWART OR PUNISH SUCCESSFUL COMPETITION.  COMPETITIVE PRACTICES EMERGE
AS UNREASONABLE RESTRAINTS OF TRADE ONLY IF THEY ARE INFUSED WITH AN
ADDITIONAL ELEMENT OF UNFAIRNESS, SUCH AS MONOPOLY, DOMINATION,
COERCION, PRICE FIXING OR AN UNREASONABLE STIFLING OF COMPETITION.  IF
THERE IS SUCH A FACTOR IN THIS INSTANCE, HOWEVER, IT LIES DEEP IN THE
UNFATHOMED SEA OF CONFLICTING OR UNPROVED FACTS. 

IF IT WERE TRUE THAT THE ASSOCIATED PRESS MONOPOLIZES OR DOMINATES
THE NEWSPAPER FIELD, THESE BY-LAW PROVISIONS MIGHT BE FOUND TO BE
UNREASONABLE RESTRAINTS OF TRADE.  THEN THE UNFAIRNESS OF EXCLUDING
OUTSIDE NEWSPAPERS BECAUSE OF THEIR COMPETITION WOULD BE MANIFEST.  SEE
UNITED STATES V. TERMINAL RAILROAD ASSN., 224 U.S. 383.  BUT THE
GOVERNMENT MAKES NO SUCH CLAIM.  IN FACT, THE DISTRICT COURT
SPECIFICALLY FOUND NO EVIDENCE OF MONOPOLY OR DOMINATION BY THE
ASSOCIATED PRESS IN THE COLLECTION OR DISTRIBUTION OF NEWS, THE MEANS
OF TRANSMITTING THE NEWS, OR THE ACCESS TO THE ORIGINAL SOURCES OF THE
NEWS.  A BRISK RIVALRY WITH THE UNITED PRESS AND THE INTERNATIONAL NEWS
SERVICE IS RECOGNIZED IN THESE MATTERS.  ASSOCIATED PRESS THUS HAS NO
POWER, THROUGH THE USE OF ITS BY-LAWS OR BECAUSE OF ITS SIZE, TO
EXCLUDE NON-MEMBERS FROM RECEIVING OR OBTAINING NEWS REPORTS.  IN THIS
RESPECT THERE IS NO BASIS FOR CONCLUDING THAT THE BY-LAWS WILL
"NECESSARILY" RESTRAIN TRADE. 

A POINT IS MADE OF THE FACT, HOWEVER, THAT THE ASSOCIATED PRESS IS
THE LARGEST OF THE NEWS AGENCIES, RANKING "IN THE FOREFRONT IN PUBLIC
REPUTATION AND ESTEEM" AND CONSTITUTING "THE CHIEF SINGLE SOURCE OF
NEWS FOR THE AMERICAN PRESS, UNIVERSALLY AGREED TO BE OF GREAT
CONSEQUENCE."  A UNIQUE VALUE IS SAID TO ATTACH TO ASSOCIATED PRESS
NEWS REPORTS, GROWING OUT OF THE FACT THAT THEY ARE FURNISHED BY AN
AGENCY COMPOSED OF AND CONTROLLED BY NEWSPAPERS REPRESENTING NEARLY
EVERY SHADE OF OPINION AND GEOGRAPHICAL SECTION OF THE NATION.  THESE
CHARACTERISTICS ARE CLAIMED TO FURNISH AN INVALUABLE GUARANTY THAT THE
NEWS WILL BE PRESENTED BY ASSOCIATED PRESS WITH A MINIMUM OF POLITICAL
AND SECTIONAL BIAS.  THE GREAT SIZE AND EXTENT OF THE ASSOCIATED PRESS
FACILITIES ARE ALSO SAID TO LEND A UNIQUENESS TO ITS REPORTS. 

BUT THERE IS NO EVIDENCE IN THE PRESENT STATE OF THE RECORD THAT
THESE FACTORS, IF THEY EXIST, MAKE THE ASSOCIATED PRESS REPORTS SO
SUPERIOR TO THOSE OF ITS RIVAL AGENCIES AS TO CLOTHE ASSOCIATED PRESS
REPORTS IN THE ROBES OF INDISPENSABILITY OR THAT COMPETITION BY NON
MEMBERS IS HINDERED OR RESTRAINED UNNECESSARILY.  PERHAPS THE
GOVERNMENT HAS EVIDENCE TO THAT EFFECT WHICH SHOULD BE INTRODUCED.  IN
THE ABSENCE OF SUCH EVIDENCE, HOWEVER, NEITHER THE POLICY NOR THE
LANGUAGE OF THE SHERMAN ACT PENALIZES THOSE WHO, BY THEIR ENTERPRISE
AND SAGACITY, HAVE FORMED A NEWS SERVICE OF THE FIRST RANK AND OF
UNIQUE VALUE IN THE EYES OF A CONSIDERABLE PORTION OF THE PUBLIC.  A
COOPERATIVE ORGANIZATION, UNTINGED WITH ANY MONOPOLISTIC OR OTHER
OBJECTIONABLE HUE, IS FREE TO EXCEED ITS COMPETITORS IN SIZE AND
EXCELLENCE WITHOUT LOSING ITS RIGHT TO CHOOSE ITS MEMBERS AND TO
PROTECT ITS OWN UNIQUE PRODUCTS FROM THE USE OF OTHERS. 

IF IT WERE SHOWN THAT THE ASSOCIATED PRESS, THROUGH ITS BY-LAWS, HAS
STIFLED OR IS INEVITABLY BOUND TO STIFLE COMPETITION BY NON-MEMBER
NEWSPAPERS IN AN UNREASONABLE MANNER, SO AS TO INJURE THE PUBLIC
INTEREST, A VIOLATION OF THE SHERMAN ACT WOULD BE BEYOND DISPUTE.  THIS
APPEARS TO BE THE PRIMARY BASIS FOR THE RESULT REACHED BY THE COURT
TODAY, FOR IT STATES THAT INABILITY TO BUY NEWS FROM THE ASSOCIATED
PRESS "CAN HAVE" MOST SERIOUS EFFECTS ON COMPETING NEWSPAPERS AND THAT
THEY ARE "MORE THAN LIKELY" TO BE AT A COMPETITIVE DISADVANTAGE.  BUT
EVEN IF COMPETITIVE DISADVANTAGE, UNDER SOME CIRCUMSTANCES, IS
SUFFICIENT TO PROVE AN UNREASONABLE STIFLING OF COMPETITION, THE
GOVERNMENT HAS AS YET PRODUCED NO EVIDENCE TO SUPPORT THE EXISTENCE OR
THE LIKELIHOOD OF SUCH A DISADVANTAGE. 

ON THE CONTRARY, THE EVIDENCE SUBMITTED BY THE ASSOCIATED PRESS AND
ACCEPTED AS TRUE BY THE DISTRICT COURT DEMONSTRATES THAT MANY
NEWSPAPERS HAVE FLOURISHED WITHOUT ASSOCIATED PRESS SERVICE AND HAVE
SUCCESSFULLY COMPETED WITH ASSOCIATED PRESS MEMBERS.  THESE PROOFS ALSO
INDICATE THAT NUMEROUS PAPERS ACTUALLY PREFER THE SERVICES OF OTHER
NEWS AGENCIES TO THAT OF ASSOCIATED PRESS; SEVERAL OF THEM HAVING
ACTUALLY DROPPED THEIR ASSOCIATED PRESS MEMBERSHIP AND BECOME MEMBERS
OF ONE OF THE OTHER NEWS ASSOCIATIONS.  MOREOVER, THERE IS A COMPLETE
LACK OF ANY RELEVANT PROOF JUSTIFYING THE CONCLUSION THAT THE
ASSOCIATED PRESS MEMBERSHIP POLICY HAS PREVENTED OR HINDERED THE BIRTH
OF A COMPETING NEWSPAPER, PREVENTED OR HINDERED THE SUCCESSFUL
OPERATION OF ONE, OR CAUSED ONE TO BE DISCONTINUED.    NOR DOES IT
APPEAR FROM THE RECORD THAT ANY APPRECIABLE SEGMENT OF THE PUBLIC HAS
BEEN UNDULY DEPRIVED OF ACCESS TO WORLD NEWS THROUGH INABILITY TO READ
ASSOCIATED PRESS DISPATCHES IN NON-MEMBER NEWSPAPERS.  INDEED, THE VERY
PRESENCE OF ASSOCIATED PRESS NEWSPAPERS IN CITIES WHERE THERE ARE
COMPETING NON-MEMBERS WOULD SEEM TO ASSURE THE PUBLIC OF ASSOCIATED
PRESS NEWS AT A SMALL COST.  THE WIDE-SPREAD SERVICE OF THE ASSOCIATED
PRESS, COVERING BOTH TOWNS WITH AND WITHOUT COMPETING SERVICES, IS TO
THAT EXTENT A GUARANTEE OF ADEQUATE ACCESS TO ITS DISPATCHES. 

IT IS CONCEIVABLE, OF COURSE, THAT THESE BY-LAWS "CAN HAVE" ADVERSE
EFFECTS UPON COMPETITION AND UPON THE PUBLIC.  BUT SOMETHING MORE THAN
A BARE POSSIBILITY SHOULD BE REQUIRED BEFORE WE ARE JUSTIFIED IN
SANCTIONING INTERFERENCE BY THE GOVERNMENT WITH THE PRIVATE
DISSEMINATION OF INFORMATION.  THERE SHOULD BE CLEAR PROOF HERE NOT
ONLY OF A COMPETITIVE ADVANTAGE BUT ALSO OF SOME UNFAIR USE OF ANY
COMPETITIVE ADVANTAGE THAT THE ASSOCIATED PRESS MAY POSSESS OR PROOF
THAT IT IS ACTING SO AS TO STIFLE COMPETITION UNREASONABLY.  EVIDENCE
OF THIS NATURE, MOREOVER, UNLESS IT IS UNDISPUTED, SHOULD BE THOROUGHLY
TESTED IN THE CRUCIBLE OF CROSS-EXAMINATION AND COUNTER-EVIDENCE.  AN
ISSUE OF THIS NATURE DESERVES MORE THAN A SUMMARY DISPOSITION. 

THUS IF IT WERE SHOWN THAT THE ASSOCIATED PRESS WAS USING ITS BY-LAWS
TO FIX PRICES FOR NEWS REPORTS OR TO COERCE NON-MEMBER NEWSPAPERS IN
SOME WAY, A CLEAR VIOLATION OF THE SHERMAN ACT WOULD BE PROVED.  UNDER
CERTAIN CIRCUMSTANCES THESE BY-LAWS CONCEIVABLY MIGHT BE EMPLOYED FOR
THE PURPOSE OF COERCING THE NON-MEMBERS TO JOIN THE ASSOCIATED PRESS,
TO REFRAIN FROM OBTAINING NEWS FROM OTHER SOURCES OR TO CEASE
OPERATIONS.  BUT NO ATTEMPT HAS BEEN MADE BY THE GOVERNMENT TO ALLEGE
OR PROVE SUCH FACTS AND THEIR EXISTENCE CANNOT BE ASSUMED ANY MORE THAN
WE CAN PRESUPPOSE UNFAIR DESTRUCTION OF COMPETITION IN ORDER TO JUSTIFY
THE DECREE OF THE COURT BELOW. 

AT THE SAME TIME, HOWEVER, MOST OF THE CASES CITED IN SUPPORT OF THE
RESULT REACHED BY THE COURT TODAY ARE RELEVANT ONLY TO A SITUATION
WHERE THERE IS SOME ELEMENT OF COERCION OR UNFAIRNESS PRESENT.  THUS
THE COMBINATION IN MONTAGUE & CO. V. LOWRY, 193 U.S. 38, WAS DESIGNED
TO FORCE NON-MEMBERS TO JOIN AS THE PRICE OF BEING ABLE "TO TRANSACT
THEIR BUSINESS AS THEY HAD THERETOFORE DONE."  IN STANDARD SANITARY
MFG. CO. V. UNITED STATES, 226 U.S. 20, A COMBINATION WAS FORMED TO
PROHIBIT SALES TO NON-MEMBER JOBBERS, THEREBY TENDING TO FORCE THEM TO
JOIN.  IN EASTERN STATES LUMBER DEALERS' ASSN. V. UNITED STATES, 234
U.S. 600, RETAILERS COMBINED AND REFUSED TO BUY FROM WHOLESALERS WHO
SOLD DIRECTLY TO CONSUMERS, AS A RESULT OF WHICH THE WHOLESALERS WERE
COMPELLED TO CEASE SELLING AT RETAIL.  THE COMBINATION IN FASHION
ORIGINATORS' GUILD V. FEDERAL TRADE COMMISSION, 312 U.S. 457, ORGANIZED
A BOYCOTT AGAINST THOSE WHO REFUSED TO COMPLY WITH ITS PROGRAM, THUS
NARROWING THE MARKET AND FORCING THEM TO CEASE PIRATING DESIGNS. 
FINALLY, THE COMBINATION IN UNITED STATES V. CRESCENT AMUSEMENT CO.,
323 U.S. 173, USED ITS BUYING POWER TO ELIMINATE COMPETITION WITH
EXHIBITORS AND TO ACQUIRE A MONOPOLY IN THE AREAS IN QUESTION. 

THERE IS THUS NO DIRECT OR AUTHORITATIVE PRECEDENT GUIDING OUR
DECISION IN THIS CASE.  NONE OF THE FOREGOING CASES OR ANY OTHER THAT
COULD BE CITED JUSTIFIES US IN SANCTIONING THE APPLICATION OF THE
SHERMAN ACT ON AN UNPROVED ASSUMPTION THAT A PARTICULAR COMBINATION
WILL "NECESSARILY" AND ILLEGALLY RESTRAIN COMPETITION IN THE FACE OF
OVERWHELMING EVIDENCE TO THE CONTRARY.  NOR ARE ANY OF THESE CASES
AUTHORITY FOR DECIDING A SHERMAN ACT CASE ON A MOTION FOR SUMMARY
JUDGMENT WHERE SERIOUS DOUBTS EXIST AS TO THE ALLEGED UNREASONABLENESS
OF THE RESTRAINT OF TRADE.  NO CASE, MOREOVER, BIDS US TO SANCTION AN
APPLICATION OF THE SHERMAN ACT TO THE BUSINESS OF GATHERING AND
DISTRIBUTING NEWS WITH OUR EYES CLOSED TO THE INEVITABLE IMPLICATIONS
AND HAZARDS. 

WE STAND AT THE THRESHOLD OF A PREVIOUSLY UNOPENED DOOR.  WE SHOULD
PAUSE LONG BEFORE OPENING IT, LEST THE PATH BE MADE CLEAR FOR DANGEROUS
GOVERNMENTAL INTERFERENCE IN THE FUTURE.  A DECREE OF THE TYPE PRESENT
IN THIS CASE IS NOT OF NECESSITY AN UNDUE INTERFERENCE BY THE
GOVERNMENT.  IF IT WERE SUPPORTED BY FACTS, IT WOULD BE A REASONABLE
AND JUSTIFIABLE METHOD OF LIBERATING NON-MEMBER NEWSPAPERS FROM THE
ALLEGED COERCIVE YOKE OF THE ASSOCIATED PRESS AND OF ASSURING THE
PUBLIC OF FULL ACCESS TO THE NEWS OF THE WORLD.  BUT THE DANGER LIES IN
APPROVING SUCH A DECREE WITHOUT INSISTING UPON MORE PROOF THAN YET
PRODUCED BY THE GOVERNMENT.  IF UNSUPPORTED ASSUMPTIONS AND CONJECTURES
AS TO THE PUBLIC INTEREST AND COMPETITION AMONG NEWSPAPERS ARE TO
WARRANT A RELATIVELY MILD DECREE SUCH AS THIS ONE, THEY WILL ALSO
SUSTAIN UNJUST AND MORE DRASTIC MEASURES.  THE BLUEPRINT WILL THEN HAVE
BEEN DRAWN FOR THE USE OF THE DESPOT OF TOMORROW. 

SINCE I AM OF THE OPINION THAT THE JUDGMENT SHOULD BE REVERSED AND
THE CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER CONSIDERATION IN
LIGHT OF THE PRINCIPLES I HAVE MENTIONED, I DO NOT DEEM IT NECESSARY TO
COMMENT IN DETAIL ON THE OTHER PARTS OF THE DECREE DISCUSSED BY THE
COURT.  AT THE SAME TIME, HOWEVER, IT SEEMS ONLY FAIR TO STATE THAT ON
THE FACTS PRESENTED IT IS DIFFICULT TO SEE ANY JUSTIFICATION FOR THE
AGREEMENT WHEREBY ASSOCIATED PRESS IS GIVEN THE EXCLUSIVE RIGHT TO
CANADIAN PRESS NEWS REPORTS IN THE UNITED STATES.  ASSOCIATED PRESS IS
THEREBY GIVEN AN OUTRIGHT MONOPOLY OF THE ONLY AVAILABLE COMPREHENSIVE
NEWS COVERAGE OF A GREAT NATION, NO COMPARABLE SUBSTITUTE BEING
AVAILABLE.  THE ONLY OTHER MATTER REMAINING IN DOUBT IS THE BY-LAW
RESTRICTION WHICH PREVENTS THE ASSOCIATED PRESS MEMBERS FROM MAKING
THEIR SPONTANEOUS LOCAL NEWS AVAILABLE TO NON-MEMBERS AND TO RIVAL NEWS
AGENCIES.  THE LOWER COURT APPEARS TO HAVE THOUGHT THIS PROVISION
REASONABLE WHEN CONSIDERED APART FROM THE MEMBERSHIP RESTRICTION.  ON
THE PRESENT STATE OF THE RECORD I AM NOT PREPARED TO DISAGREE ALTHOUGH
I AM INCLINED TO BELIEVE THAT THIS PROVISION MAY WELL BE SHOWN TO BE
UNREASONABLE. 
..END :








I.C.C. V. PARKER, 326 U.S. 60 


ARGUED MARCH 28, 1945.  - DECIDED JUNE 18, 1945.  - REVERSED. 


1.  UPON AN APPLICATION MADE UNDER SECS. 206 AND 207 OF PART II OF THE
INTERSTATE COMMERCE ACT BY AN APPLICANT WHICH WAS OWNED WHOLLY BY A
RAILROAD, THE INTERSTATE COMMERCE COMMISSION GRANTED A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY, AUTHORIZING OPERATIONS BY THE
APPLICANT AS A COMMON CARRIER BY MOTOR VEHICLE OVER SPECIFIED ROUTES
ALONG RAIL LINES OF THE RAILROAD, UPON CONDITIONS DESIGNED TO RESTRICT
THE APPLICANT'S OPERATIONS TO SERVICE AUXILIARY TO AND SUPPLEMENTAL OF
RAIL SERVICE.  THE COMMISSION FOUND, UPON ADEQUATE EVIDENCE, THAT THE
RESTRICTED OPERATIONS AUTHORIZED WERE OF A CHARACTER DIFFERENT FROM
EXISTING MOTOR CARRIER SERVICE AND NOT DIRECTLY COMPETITIVE OR UNDULY
PREJUDICIAL TO EXISTING MOTOR CARRIERS.  HELD THAT ISSUANCE OF THE
CERTIFICATE WAS WITHIN THE STATUTORY AUTHORITY AND ADMINISTRATIVE
DISCRETION OF THE COMMISSION.  PP. 62, 69. 

2.  IN DETERMINING WHETHER MOTOR CARRIER SERVICE BY A RAILROAD IS
REQUIRED BY PUBLIC CONVENIENCE AND NECESSITY, THE COMMISSION MUST WEIGH
THE ADVANTAGES OF IMPROVED RAILROAD SERVICE AGAINST ANY SERIOUS
IMPAIRMENT OF OVER-THE-ROAD MOTOR CARRIER SERVICE.  P. 68. 

3.  WHERE AN EXISTING RAIL SERVICE MAY BE IMPROVED BY A UNIFIED AND
LIMITED RAIL-TRUCK OPERATION, WHICH WOULD NOT BE UNDULY PREJUDICIAL TO
MOTOR CARRIER OPERATIONS, THE COMMISSION MAY AUTHORIZE SUCH OPERATION
BY THE RAILROAD, EVEN THOUGH EXISTING MOTOR CARRIERS MIGHT HAVE BEEN
UTILIZED.  P. 69. 

THE COMMISSION HERE WAS ENTITLED TO CONCLUDE THAT THE PUBLIC WILL BE
BETTER SERVED THROUGH UNIFIED OPERATION BY THE RAILROAD THAN BY USE OF
THE AVAILABLE MOTOR CARRIER FACILITIES.  P. 73. 

4.  IT IS THE DUTY OF THE COMMISSION, IN PURSUANCE OF THE NATIONAL
TRANSPORTATION POLICY, TO GUARD AGAINST TRANSPORTATION MONOPOLIES AND
TO PRESERVE THE INHERENT ADVANTAGES OF ALL MODES OF TRANSPORTATION.  P.
73. 

5.  THE COMMISSION DID NOT ABUSE ITS DISCRETION IN REFUSING TO REOPEN
THE PROCEEDING TO ADMIT EVIDENCE AS TO THE BIAS OF WITNESSES, IN THE
ABSENCE OF EXCUSE FOR FAILURE TO ADDUCE SUCH EVIDENCE PREVIOUSLY.  P.
73. 

6.  IN VIEW OF THE CONCLUSIONS HERE REACHED, REFUSAL UPON THE HEARING
TO REQUIRE PRODUCTION OF THE CONTRACT BETWEEN THE RAILROAD AND ITS
SUBSIDIARY WAS NOT MATERIAL ERROR.  P. 74. 

INTERSTATE COMMERCE COMMISSION ET AL. V. PARKER, DOING BUSINESS AS
PARKER MOTOR FREIGHT, ET AL. 

NO. 507.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF INDIANA* . 

*TOGETHER WITH NO. 508, UNITED STATES V. PARKER, DOING BUSINESS AS
PARKER MOTOR FREIGHT, ET AL., ALSO ON APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF INDIANA. 

APPEALS FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES ENJOINING
THE ENFORCEMENT OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.  SEE
42 M.C.C. 721. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS BRING HERE FOR REVIEW A FINAL JUDGMENT OF THE SPECIAL
DISTRICT COURT WHICH ENJOINED THE ENFORCEMENT OF AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION.  THE PROCEEDINGS BELOW AND THE APPEALS
HERE WERE BROUGHT UNDER 28 U.S.C. SEC. 41(28), SECS. 43-48 AND SEC.
345.  THE REPORT OF THE COMMISSION APPEARS UNDER THE TITLE WILLETT CO.
OF IND., INC., EXTENSION - FORT WAYNE-MACKINAW CITY, 42 M.C.C. 721. 
THE DISTRICT COURT DID NOT FILE AN OPINION. 

THE APPLICANT, THE WILLETT COMPANY, IS A WHOLLY OWNED, COMMON CARRIER
BY MOTOR, SUBSIDIARY OF THE PENNSYLVANIA RAILROAD COMPANY.  PREVIOUS TO
THIS APPLICATION IT HELD MOTOR CARRIER OPERATING RIGHTS FOR SOME TWENTY
FIVE ROUTES WHICH PARALLELED LINES OF THE PENNSYLVANIA RAILROAD AT
OTHER POINTS THAN THOSE COVERED BY THIS APPLICATION.  FORT WAYNE WAS
INCLUDED.  WILLETT SOUGHT TO SECURE FROM THE COMMISSION IN THIS CASE
CERTIFICATES OF CONVENIENCE AND NECESSITY FOR SEVEN ADDITIONAL ROUTES
EXTENDING ALONG THE LINES OF THE PENNSYLVANIA RAILROAD BETWEEN FORT
WAYNE, INDIANA, AND MACKINAW CITY, MICHIGAN. 

THE APPLICATIONS WERE GRANTED AFTER FINDINGS THAT WILLETT WOULD
RENDER SERVICE AUXILIARY TO AND SUPPLEMENTAL OF THE PENNSYLVANIA'S
SERVICE IN THE TRANSPORTATION OF LESS-THAN-CARLOAD FREIGHT.  THE
SERVICE IS TO BE RENDERED ON RAILROAD BILLINGS AND IS TO EMPLOY
RAILROAD FIXED AND CLERICAL FACILITIES.  THE COMMISSION FOUND THAT
WILLETT'S SERVICE WOULD BE COORDINATED WITH THE RAIL SERVICE AND UNDER
RAILROAD SUPERVISION.  42 M.C.C. 725; 21 M.C.C. AT 407.  IT ALSO FOUND
THAT THE PRESENT AND FUTURE PUBLIC CONVENIENCE AND NECESSITY REQUIRED
THOSE MOTOR CARRIER OPERATIONS. 

IN ACCORDANCE WITH THE POLICY OF THE COMMISSION IN GRANTING
CERTIFICATES TO RAILROAD MOTOR CARRIER AFFILIATES TO IMPROVE THE
SERVICE OF THE RAILROAD, THE COMMISSION LIMITED THE CARRIER TO SERVICE
WHICH IS AUXILIARY TO OR SUPPLEMENTAL OF THE RAIL SERVICE OF THE
PENNSYLVANIA.  IT FORBADE SERVICE TO "ANY POINT NOT A STATION ON A RAIL
LINE OF THE RAILROAD," AND TOOK STEPS TO KEEP THE COMMISSION INFORMED
OF THE CONTRACTUAL ARRANGEMENTS BETWEEN WILLETT AND THE PENNSYLVANIA. 

WHILE THE ROUTES PARALLELED THE LINES OF THE PENNSYLVANIA IN NORTHERN
INDIANA AND THE SOUTHERN PENINSULA OF MICHIGAN, THE AUTHORIZATION TO
WILLETT FORBADE THE TRANSPORTATION BY APPLICANT AS A COMMON CARRIER OF
ANY SHIPMENTS FROM FORT WAYNE, INDIANA, TO GRAND RAPIDS, MICHIGAN, OR
THROUGH OR TO OR FROM MORE THAN ONE OF SAID POINTS.  THE PURPOSE OF
THIS LIMITATION WAS TO RESTRICT WILLETT TO TRANSPORTATION TRULY
SUPPLEMENTAL OR AUXILIARY TO THE RAIL TRAFFIC.  THE TWO CITIES ARE
BREAK-BULK OR KEY POINTS.  LESS-THAN-CARLOAD FREIGHT COMES TO OR LEAVES
THEM IN CARLOAD LOTS.  WHEN A MIXED CARLOAD REACHES ONE OF THESE KEY
POINTS, THE CONTENTS ARE DISTRIBUTED TO THE SMALLER, INTERMEDIATE
POINTS OF DESTINATION AS WAY-FREIGHT BY "PEDDLER" CARS.  THE WILLETT
COMPANY SEEKS TO TAKE OVER THIS "PEDDLER" WORK AND NOT TO DO OVER-THE
ROAD TRUCKING.  SUCH MOTOR-RAIL COORDINATION HAS PROVEN SUCCESSFUL IN
IMPROVING SERVICE AND REDUCING CARRIER COSTS. 

AS A FURTHER ASSURANCE THAT WILLETT MIGHT NOT INADVERTENTLY HAVE
RECEIVED PRIVILEGES BEYOND THE COMMISSION'S INTENTION TO GRANT, A RIGHT
WAS RESERVED BY THE COMMISSION TO IMPOSE SUCH FURTHER SPECIFIC
CONDITIONS AS IT MIGHT FIND NECESSARY IN THE FUTURE TO RESTRICT
WILLETT'S OPERATION "TO SERVICE WHICH IS AUXILIARY TO, OR SUPPLEMENTAL
OF, RAIL SERVICE." 

THE OPERATION OF THE ORDER OF THE COMMISSION WAS ENJOINED BY THE
DISTRICT COURT BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE
ORDER OF THE COMMISSION THAT PUBLIC CONVENIENCE AND NECESSITY REQUIRED
THE ISSUANCE OF A CERTIFICATE TO WILLETT.  THE DISTRICT COURT SAID IN
THE FINDINGS OF FACT THAT THERE WAS NO PROOF THAT THE PRESENT HIGHWAY,
COMMON MOTOR CARRIER TRANSPORTATION SERVICE BY CERTIFICATED CARRIERS
WAS OR WOULD BE INADEQUATE TO SERVE THE PUBLIC NEED.  THE APPELLANTS,
OF COURSE, CONTEST HERE THE SOUNDNESS OF THE DISTRICT COURT JUDGMENT. 

THE INTERSTATE COMMERCE COMMISSION INSISTS THAT ITS ORDER AUTHORIZING
THE ISSUANCE TO WILLETT OF THE CERTIFICATES OF CONVENIENCE AND
NECESSITY FOR THE SPECIFIED ROUTES IS VALID.  IT BASES ITS CONTENTION
ON THE STATUTORY PROVISIONS WHICH AUTHORIZE THE COMMISSION TO ACT IN
REGULATION OF MOTOR CARRIERS AND ASSERTS ITS COMPLIANCE WITH THEM. 
UNDER THE INTERSTATE COMMERCE ACT, PART II, SEC. 206(A), 49 STAT. 551,
NO MOTOR VEHICLE SUBJECT TO THE ACT MAY OPERATE ON THE HIGHWAYS WITHOUT
A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY.  SECTION 207(A)
PROVIDES FOR ISSUANCE OF THE CERTIFICATE ON APPLICATION, IF THE
PROPOSED SERVICE "IS OR WILL BE REQUIRED BY THE PRESENT OR FUTURE
PUBLIC CONVENIENCE AND NECESSITY."  NO OTHER PROVISIONS ARE HERE
INVOLVED.  THE ENTIRE SUBSECTION APPEARS BELOW.  FN1  A FINDING OF
PUBLIC CONVENIENCE AND NECESSITY WAS MADE, 42 M.C.C. AT 726, BUT THAT
ULTIMATE FINDING MUST HAVE BEEN BASED ON THE PROPER STATUTORY CRITERIA
AND MUST HAVE HAD THE NECESSARY FACTUAL FINDINGS TO SUPPORT IT. 

PUBLIC CONVENIENCE AND NECESSITY IS NOT DEFINED BY THE STATUTE.  THE
NOUNS IN THE PHRASE POSSESS CONNOTATIONS WHICH HAVE EVOLVED FROM THE
HALF-CENTURY EXPERIENCE OF GOVERNMENT IN THE REGULATION OF
TRANSPORTATION.  WHEN CONGRESS IN 1935 AMENDED THE INTERSTATE COMMERCE
ACT BY ADDING THE MOTOR CARRIER ACT, IT CHOSE THE SAME WORDS TO STATE
THE CONDITION FOR NEW MOTOR LINES WHICH HAD BEEN EMPLOYED FOR SIMILAR
PURPOSES FOR RAILROADS IN THE SAME ACT SINCE THE TRANSPORTATION ACT OF
1920, SEC. 402(18) AND (20), 41 STAT. 477.  SUCH USE INDICATED A
CONTINUATION OF THE ADMINISTRATIVE AND JUDICIAL INTERPRETATION OF THE
LANGUAGE.  CF. CASE V. LOS ANGELES LUMBER CO., 308 U.S. 106, 115.  THE
COMMISSION HAD ASSUMED, AS ITS DUTY UNDER THESE EARLIER SUBSECTIONS,
THE FINDING OF FACTS AND THE EXERCISE OF ITS JUDGMENT TO DETERMINE
PUBLIC CONVENIENCE AND NECESSITY.  THIS COURT APPROVED THIS
CONSTRUCTION.  CHESAPEAKE & OHIO R. CO. V. UNITED STATES, 283 U.S. 35,
42.  CF. GRAY V. POWELL, 314 U.S. 402, 411-12.  THE PURPOSE OF CONGRESS
WAS TO LEAVE TO THE COMMISSION AUTHORITATIVELY TO DECIDE WHETHER
ADDITIONAL MOTOR SERVICE WOULD SERVE PUBLIC CONVENIENCE AND NECESSITY. 
CF. POWELL V. UNITED STATES, 300 U.S. 276, 287.  THIS, OF COURSE, GIVES
ADMINISTRATIVE DISCRETION TO THE COMMISSION, CF. MCLEAN TRUCKING CO. V.
UNITED STATES, 321 U.S. 67, 87-88, TO DRAW ITS CONCLUSION FROM THE
INFINITE VARIETY OF CIRCUMSTANCES WHICH MAY OCCUR IN SPECIFIC
INSTANCES.  THE DISPUTANTS, HERE, DO NOT CLASH OVER THE POWER OF THE
COMMISSION TO DETERMINE THE NEED FOR THE NEW SERVICE OR THAT IT WILL
SERVE THE PUBLIC CONVENIENCE AND NECESSITY.  THE EVIDENCE IS AMPLE AND
UNCONTRADICTED THAT DELIVERY BY MOTOR OF LESS-THAN-CARLOAD FREIGHT TO
WAY STATIONS IS A MORE ADEQUATE, EFFICIENT AND ECONOMICAL METHOD FOR
RAILROADS THAN BY "PEDDLER" CAR.  THEY JOIN ISSUE ON THE COMMISSION'S
DETERMINATION AS TO THE CARRIER WHICH WILL RENDER THAT SERVICE.  SHALL
IT BE BY THE RAILROAD THROUGH THE USE OF ITS TRUCKING SUBSIDIARY OR BY
THE EXISTING COMMON CARRIERS BY MOTOR? 

THE NATIONAL TRANSPORTATION POLICY HAS RECENTLY BEEN AUTHORITATIVELY
SUMMARIZED BY CONGRESS.  THAT DECLARATION REQUIRES ADMINISTRATION SO AS
TO PRESERVE THE INHERENT ADVANTAGES OF EACH METHOD OF TRANSPORTATION
AND TO PROMOTE "SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE." 
FN2  SUCH BROAD GENERALIZATIONS, WHILE WELL EXPRESSING THE
CONGRESSIONAL PURPOSE, MUST FREQUENTLY PRODUCE OVERLAPPING AIMS.  IN
SUCH SITUATIONS, THE SOLUTION LIES IN THE BALANCING BY THE COMMISSION
OF THE PUBLIC INTERESTS IN THE DIFFERENT TYPES OF CARRIERS WITH DUE
REGARD TO THE DECLARED PURPOSES OF CONGRESS.  CF. I.C.C. V. INLAND
WATERWAYS CORP., 319 U.S. 671, 691; UNITED STATES V. PENNSYLVANIA R.
CO., 323 U.S. 612, 615. 

WHEN CONGRESS DIRECTED THAT THE ACT SHOULD BE ADMINISTERED TO
PRESERVE THE INHERENT ADVANTAGES OF EACH MODE OF TRANSPORTATION, IT IS
ABUNDANTLY CLEAR THAT IT WAS NOT INTENDED TO BAR RAILROADS FROM THE
OPERATION OF OFF-THE-RAIL MOTOR VEHICLES.  IN 1938 WHEN COMMITTEE
HEARINGS WERE BEING HELD TO CONSIDER AMENDMENTS TO THE MOTOR CARRIER
ACT, 1935, MR. EASTMAN EXPLAINED THE DIFFERENCE IN OPINION AS TO
WHETHER OR NOT RAILROADS SHOULD ACQUIRE MOTOR CARRIERS.  FN3  SECTION
213(A) OF THE 1935 ACT SPECIFICALLY REGULATED ACQUISITION OF MOTOR
CARRIERS BY RAILROADS.  PROVISION FOR SUCH ACQUISITIONS APPEAR NOW IN
SEC. 5 OF THE INTERSTATE COMMERCE ACT, 54 STAT. 905.  SEE MCLEAN
TRUCKING CO. V. UNITED STATES, SUPRA.  SECTION 202(C)(1) OF THE 1940
INTERSTATE COMMERCE ACT, PART II, AS AMENDED, WITHDRAWS RAILROAD
OPERATION OF MOTOR CARRIERS IN TERMINAL AREAS FROM THE SCOPE OF MOTOR
CARRIER REGULATION AND LEAVES SUCH OPERATIONS UNDER PART I. FN4
RAILROADS MAY, THEREFORE, IN APPROPRIATE PLACES OPERATE TRUCKS. 
HOWEVER, SINCE THE PRESERVATION OF THE INHERENT ADVANTAGES OF MOTOR
CARRIERS IS OF EQUAL IMPORTANCE WITH EFFICIENCY UNDER THE NATIONAL
TRANSPORTATION POLICY, THE COMMISSION MUST WEIGH THE NEEDS OF THE
RAILROAD AGAINST DISADVANTAGES TO THE MOTOR CARRIERS TO FIND THE
BALANCE OF PUBLIC CONVENIENCE AND NECESSITY IN DETERMINING WHETHER TO
GRANT A RAILROAD APPLICATION FOR MOTOR OPERATION WHERE THESE
CERTIFICATES ARE REQUIRED.  CF. TEXAS V. UNITED STATES, 292 U.S. 522,
530. 

THIS THE COMMISSION DID IN ITS FINDINGS AND CONCLUSION.  IT SAID: 

"THE MOTOR-CARRIER SERVICE PROPOSED BY APPLICANT, OPERATED IN CLOSE
COORDINATION WITH THE RAILROAD'S SERVICE, WILL EFFECTUATE A REDUCTION
IN COST, AND WILL RESULT IN AN INCREASE IN EFFICIENCY IN THE
TRANSPORTATION OVER THE ROUTES HEREIN CONSIDERED, WHICH WILL INURE TO
THE BENEFIT OF THE GENERAL PUBLIC.  FURTHERMORE, IT DOES NOT APPEAR
THAT THE RESTRICTED SERVICE WOULD BE DIRECTLY COMPETITIVE OR UNDULY
PREJUDICIAL TO THE OPERATIONS OF ANY OTHER MOTOR CARRIER...."  42
M.C.C. AT 726. 

IN SUPPORT OF THIS STATEMENT THE EVIDENCE SHOWED THAT WILLETT SERVED,
SIMILARLY AND SATISFACTORILY, OTHER LOCALITIES ALONG THE PENNSYLVANIA
LINES IN OHIO, INDIANA AND ILLINOIS.  THE COORDINATION OF WILLETT'S
LINE-HAUL METHOD OF OPERATIONS WITH THE RAIL SERVICE HAS BEEN
EXPLAINED.  THE EXISTING SCHEDULES OF PROTESTANTS DO NOT FIT INTO THE
NEEDS OF THE PROJECTED SERVICE.  COMMON MANAGEMENT OF RAILROAD AND
TRUCKS GAVE PROMISE OF BETTER COOPERATION THAN WOULD BE OBTAINED BY
ARM'S-LENGTH CONTRACTS OR AGREEMENTS.  WHILE THE EVIDENCE SHOWS THAT
THERE WERE OPERATING TRUCK LINES IN THE AREA WHICH INDIVIDUALLY COULD
SERVE ALL THE WAY-STATIONS BY SECURING EXTENSIONS TO THEIR PRESENT
ROUTES, IT ALSO SHOWS THAT NO MOTOR CARRIER IS NOW IN A POSITION TO
RENDER THIS COMPLETE SERVICE.  CF. KANSAS CITY SOUTHERN TRANSPORT CO.,
COMMON CARRIER APPLICATION, 10 M.C.C. 221, 232.  THE COMMISSION ON THIS
EVIDENCE HAD A BASIS TO CONCLUDE THAT A RAILROAD SUBSIDIARY OFFERED THE
MOST SATISFACTORY FACILITIES FOR MAKING LESS-THAN-CARLOAD DELIVERIES TO
WAY-STATIONS. 

THE CONTENTION OF APPELLEES, PROTESTANT MOTOR CARRIERS, IS THAT SINCE
NO EVIDENCE WAS OFFERED AS TO THE INADEQUACY OF THE PRESENTLY DULY
CERTIFICATED MOTOR CARRIERS TO SERVE THE RAILROAD'S NEED, THERE WAS A
FAILURE OF PROOF AS TO CONVENIENCE OF AND NECESSITY FOR A NEW MOTOR
TRUCK OPERATION IN THE TERRITORY.  PUBLIC CONVENIENCE AND NECESSITY
SHOULD BE INTERPRETED SO AS TO SECURE FOR THE NATION THE BROAD AIMS OF
THE INTERSTATE COMMERCE ACT OF 1940.  CF. NEW ENGLAND DIVISIONS CASE,
261 U.S. 184, 189; I.C.C. V. RAILWAY LABOR ASSN., 315 U.S. 373, 376-77;
UNITED STATES V. LOWDEN, 308 U.S. 225, 230; TEXAS & N.O.R. CO. V.
NORTHSIDE BELT R. CO., 276 U.S. 475, 479.  IN PROTESTANTS' VIEW A
CERTIFICATE OF CONVENIENCE AND NECESSITY SHOULD NOT BE GRANTED TO
RAILROADS FOR MOTOR TRUCK OPERATION WHEN EXISTING MOTOR CARRIERS ARE
CAPABLE OF RENDERING THE SAME SERVICE.  APPELLANTS TAKE THE POSITION
THAT THIS PRECISE ISSUE NEED NOT BE DECIDED IN THIS CASE.  THEY LOOK
UPON THE APPLICATION AS ASKING FOR AUTHORITY TO IMPROVE "AN EXISTING
SERVICE."  WE THINK THAT IT WAS FOR A MOTOR SERVICE TO IMPROVE AN
EXISTING RAIL SERVICE.  CONSEQUENTLY, THE ISSUANCE OF THE CERTIFICATE
IS SUBJECT TO ALL THE REQUIREMENTS OF ANY OTHER APPLICATION FOR A
CERTIFICATE FOR OPERATION OF MOTOR LINES.  SINCE, HOWEVER, ON ADEQUATE
EVIDENCE THE COMMISSION FOUND THAT THE MOTOR SERVICE SOUGHT WAS OF A
DIFFERENT CHARACTER FROM THE EXISTING MOTOR SERVICE AND NOT DIRECTLY
COMPETITIVE OR UNDULY PREJUDICIAL TO THE ALREADY CERTIFICATED MOTOR
CARRIERS, 42 M.C.C. 725-26, WE HOLD THAT THE COMMISSION HAD STATUTORY
AUTHORITY AND ADMINISTRATIVE DISCRETION TO ORDER THE CERTIFICATE TO
ISSUE.  THE PUBLIC IS ENTITLED TO THE BENEFITS OF IMPROVED
TRANSPORTATION.  WHERE THAT IMPROVEMENT DEPENDS IN THE COMMISSION'S
JUDGMENT UPON A UNIFIED AND LIMITED RAIL-TRUCK OPERATION WHICH IS FOUND
NOT "UNDULY PREJUDICIAL" TO MOTOR CARRIER OPERATIONS, THE COMMISSION
MAY AUTHORIZE THE CERTIFICATE EVEN THOUGH THE EXISTING CARRIERS MIGHT
ARRANGE TO FURNISH SUCCESSFULLY THE PROJECTED SERVICE.    CERTIFICATES
OF THE GENERAL CHARACTER OF THE ONE PROPOSED BY THE COMMISSION FOR
WILLETT HAVE BEEN GRANTED HERETOFORE.  FN5 THE MOTOR SERVICE WAS NOT
THE NORMAL OVER-THE-ROAD TYPE BUT RESTRICTED TO SERVICES AUXILIARY OR
SUPPLEMENTAL TO THE RAIL SERVICE.  IN ORDER TO RESTRICT MOTOR CARRIERS
WHICH WERE OPERATED BY RAILROADS TO THIS COORDINATED SERVICE, THE
COMMISSION CUSTOMARILY INSERTED A PROVISION IN THE ORDER GRANTING THE
APPLICATION THAT THE MOTOR SHIPMENTS MUST HAVE PRIOR OR SUBSEQUENT
MOVEMENT BY RAIL.  E.G. KANSAS CITY SOUTHERN TRANSPORT CO., COMMON
CARRIER APPLICATION, 10 M.C.C. 221, 240.  THE RAIL CARRIERS POINTED
OUT, HOWEVER, THAT THIS RESTRICTION INTERFERED WITH THE EFFICIENCY OF
THEIR OPERATIONS, SINCE COMMODITIES MIGHT BE OFFERED THEM AT ONE WAY
STATION FOR TRANSPORTATION TO ANOTHER WAY-STATION WITHIN ORDINARY
MOTORING DISTANCE.  IN SUCH A CASE A WAY-FREIGHT TRAIN WOULD BE
REQUIRED.  IT WAS TO MEET THIS SITUATION THAT THE KEY-POINT OR BREAK
BULK RULE, WHICH IS EMPLOYED HERE, WAS DEVELOPED.  KANSAS CITY SOUTHERN
TRANSPORT CO., COMMON CARRIER APPLICATION, 28 M.C.C. 5, 9, 11, 22(PAR. 
3), 25(APP.  B). 

THIS KEY-POINT REQUIREMENT IS ONE FACTOR OF DIFFERENTIATION BETWEEN
THIS CERTIFICATE AND THE NORMAL OVER-THE-ROAD MOTOR CERTIFICATE OF
CONVENIENCE AND NECESSITY.  OTHER DIFFERENTIATIONS ARE FOUND IN THE
LIMITATION OF SERVICE TO RAIL STATION POINTS AND THE CONDITION THAT THE
COMMISSION RESERVED THE RIGHT TO IMPOSE SUCH OTHER REQUIREMENTS AS
MIGHT BE FOUND NECESSARY TO RESTRICT THE RAIL SUBSIDIARY TO COORDINATED
RAIL SERVICE INSTEAD OF PERMITTING GENERAL COMPETITION WITH MOTOR
CARRIERS IN OVER-THE-ROAD SERVICE. 

IT IS, OF COURSE, OBVIOUS THAT OPPORTUNITY EXISTS FOR LIMITED
ENCROACHMENT UPON THE OVER-THE-ROAD BUSINESS OF THE EXISTING MOTOR
CARRIERS.  A SHIPPER FROM ONE WAY-STATION TO ANOTHER STATION ON THE
SAME RAILROAD WITHIN THE PERMITTED KEY-POINT LIMITATION MAY USE THE
RAILROAD MOTOR CARRIER INSTEAD OF THE MOTOR CARRIER.  FREE PICKUP AND
DELIVERY SERVICE MAY EXTEND THE COMPETITION TO THE LIMITS OF THE
TERRITORIAL BOUNDARIES OF THE RAILROAD TERMINAL AREAS AND GIVE A
FURTHER ADVANTAGE TO THE RAILROAD WHERE THE MOTOR CARRIER DOES NOT
FURNISH THE SAME SERVICE.  FN6  IF THE COMMISSION LATER DETERMINES THAT
THE BALANCE OF PUBLIC CONVENIENCE AND NECESSITY SHIFTS THROUGH
COMPETITION OR OTHERWISE, SO THAT INJURY TO THE PUBLIC FROM INPAIRMENT
OF THE INHERENT ADVANTAGES OF MOTOR TRANSPORTATION EXCEEDS THE
ADVANTAGE TO THE PUBLIC OF EFFICIENT RAIL TRANSPORTATION, THE
COMMISSION MAY CORRECT THE TENDENCY BY RESTORATION OF THE RAIL MOVEMENT
REQUIREMENT OR OTHERWISE. 

ADMINISTRATIVE DISCRETION RESTS WITH THE COMMISSION TO FURTHER
IMPROVEMENTS IN TRANSPORTATION.  THE INTERSTATE COMMERCE ACT CONTAINS
NO PROVISION BY WHICH THE COMMISSION MAY COMPEL NON-RAIL MOTOR CARRIERS
TO COORDINATE THEIR ROAD SERVICE WITH RAIL SERVICE OR MAY COMPEL RAIL
CARRIERS TO COORDINATE THEIR SERVICE WITH MOTOR CARRIERS.  FN7  WHEN IN
RAILROAD APPLICATIONS FOR COORDINATED MOTOR SERVICE THE COMMISSION
FINDS PUBLIC CONVENIENCE AND NECESSITY FOR SUCH MOTOR SERVICE ON
EVIDENCE OF TRANSPORTATION ADVANTAGES TO SHIPPERS AND ECONOMY TO THE
RAIL CARRIERS, CF. TEXAS V. UNITED STATES, 292 U.S. 522, 530, IT IS IN
A POSITION TO DETERMINE BY ITS ADMINISTRATIVE DISCRETION WHETHER THE
PROJECTED SERVICE MAY BE BETTER RENDERED BY THE RAILROAD OR EXISTING
MOTOR CARRIERS.  IN THE ABSENCE OF POWER TO COMPEL COORDINATION BETWEEN
THE MODES OF TRANSPORTATION AND IN THE PRESENCE OF THE PROBABLE GAINS
IN OPERATIVE EFFICIENCY FROM UNIFIED MANAGEMENT, WE THINK THE
COMMISSION, IN VIEW OF THE LIMITATIONS ON THE RAILROAD'S MOTOR SERVICE,
IS ENTITLED TO CONCLUDE THAT THE PUBLIC WILL BE BETTER SERVED BY THE
RAIL OPERATION THAN BY USE OF THE AVAILABLE MOTOR CARRIER FACILITIES. 
THE ALTERNATIVE TO THE EXISTENCE OF THIS DISCRETION IS THAT THE
LANGUAGE OF THE INTERSTATE COMMERCE ACT, PART II, FORBIDS THE GRANTING
TO RAILROADS OF A CERTIFICATE OF CONVENIENCE AND NECESSITY FOR THE
OPERATION OF MOTOR TRUCKS, UNDER SPECIALLY LIMITED CERTIFICATES, WHEN
THERE ARE CERTIFICATED MOTOR CARRIERS, INDEPENDENT OF RAILROAD
AUTHORITY OR SUPERVISION, WITH WHOM ARRANGEMENTS FOR THE SERVICE MIGHT
BE MADE BY THE RAIL CARRIERS.  THERE IS NO SUCH PROHIBITION IN TERMS. 
ANY SUCH IMPLICATION IS NEGATED BY THE DISCRETION TO GRANT CERTIFICATES
CONFERRED ON THE COMMISSION BY THE ACT. 

PROTESTANTS, THE APPELLEE MOTOR CARRIERS, POINT OUT THAT UNDER THIS
INTERPRETATION IN EVERY CASE OF AN APPLICATION BY A RAIL CARRIER OR ITS
WHOLLY OWNED SUBSIDIARY, FOR A CERTIFICATE OF CONVENIENCE AND NECESSITY
TO OPERATE A MOTOR LINE TO RENDER SERVICE AT WAY-STATIONS, THE
COMMISSION WILL HAVE POWER, UNDER FACTS AND WITH LIMITATIONS IN THE
CERTIFICATE, PREVIOUSLY DESCRIBED, TO GRANT THE CERTIFICATE.  THIS IS
TRUE.  IT MUST BE EXPECTED, HOWEVER, THAT THE COMMISSION WILL BE AS
ALERT TO PERFORM ITS DUTY IN PROTECTING THE PUBLIC IN THE MAINTENANCE
OF AN EFFICIENT MOTOR TRANSPORTATION SYSTEM AS IT IS IN PROTECTING THAT
SAME PUBLIC IN THE SUCCESSFUL OPERATION OF ITS RAIL SYSTEM.  THE
COMMISSION IS TRUSTED BY CONGRESS TO GUARD AGAINST THE DANGER OF THE
DEVELOPMENT OF A TRANSPORTATION MONOPOLY.  49 U.S.C. SEC. 5(2)(A) AND
(B).  IT HAS THE DUTY TO PRESERVE THE INHERENT ADVANTAGES OF EACH MODE
OF TRANSPORTATION. 

APPELLEES RAISE HERE AN OBJECTION TO THE FAILURE OF THE COMMISSION TO
REOPEN THE CASE TO HEAR EVIDENCE ON THE BIAS OF THE RAILROAD
WITNESSES.  NO VALID REASON FOR FAILURE TO BRING OUT THE ALLEGED BIAS
AT THE TRIAL IS SUGGESTED. 

WE PASS ALSO WITHOUT FURTHER DISCUSSION THE APPELLEES' COMPLAINT OF
MATERIAL ERROR IN THE REFUSAL TO PRODUCE THE CONTRACT BETWEEN THE
PENNSYLVANIA AND WILLETT AT THE HEARING.  IT DOES NOT SEEM MATERIAL IN
VIEW OF OUR CONCLUSIONS.  THE JOINT BOARD DIRECTED THAT THE CONTRACT BE
FILED AS A "LATE EXHIBIT."  REVERSED. 

FN1  49 STAT. 551-52: 

"SEC. 207.  (A)  SUBJECT TO SECTION 210, A CERTIFICATE SHALL BE
ISSUED TO ANY QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE WHOLE OR
ANY PART OF THE OPERATIONS COVERED BY THE APPLICATION, IF IT IS FOUND
THAT THE APPLICANT IS FIT, WILLING, AND ABLE PROPERLY TO PERFORM THE
SERVICE PROPOSED AND TO CONFORM TO THE PROVISIONS OF THIS PART AND THE
REQUIREMENTS, RULES, AND REGULATIONS OF THE COMMISSION THEREUNDER, AND
THAT THE PROPOSED SERVICE, TO THE EXTENT TO BE AUTHORIZED BY THE
CERTIFICATE, IS OR WILL BE REQUIRED BY THE PRESENT OR FUTURE PUBLIC
CONVENIENCE AND NECESSITY; OTHERWISE SUCH APPLICATION SHALL BE DENIED:
PROVIDED, HOWEVER, THAT NO SUCH CERTIFICATE SHALL BE ISSUED TO ANY
COMMON CARRIER OF PASSENGERS BY MOTOR VEHICLE FOR OPERATIONS OVER OTHER
THAN A REGULAR ROUTE OR ROUTES, AND BETWEEN FIXED TERMINI, EXCEPT AS
SUCH CARRIERS MAY BE AUTHORIZED TO ENGAGE IN SPECIAL OR CHARTER
OPERATIONS." 

FN2  54 STAT. 899: 

"IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF
THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES
OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY." 

FN3  HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON INTERSTATE
COMMERCE, UNITED STATES SENATE, 75TH CONG., 3D SESS., ON S. 3606, P.
23: 

"THE REASON FOR THAT PROVISO WAS THAT AT THE TIME WHEN THIS ACT WAS
UNDER CONSIDERATION BY YOUR COMMITTEE, THERE WAS A FEELING ON THE PART
OF MANY THAT RAILROADS, FOR EXAMPLE, OUGHT NOT BE PERMITTED TO ACQUIRE
MOTOR CARRIERS AT ALL.  IT WAS POINTED OUT, IN OPPOSITION TO THAT VIEW,
THAT THERE WERE MANY CASES WHERE RAILROADS COULD USE MOTOR VEHICLES TO
GREAT ADVANTAGE IN THEIR OPERATIONS, IN SUBSTITUTION FOR RAIL SERVICE,
AS MANY OF THEM ARE NOW DOING.  MANY RAILROAD MEN, FOR EXAMPLE, FEEL
THAT THE OPERATION OF WAY TRAINS HAS BECOME OBSOLETE; THAT THE MOTOR
VEHICLE CAN HANDLE SUCH TRAFFIC BETWEEN SMALL STATIONS MUCH MORE
ECONOMICALLY AND CONVENIENTLY THAN CAN BE DONE BY A WAY TRAIN; AND THE
MOTOR VEHICLES ARE BEING USED IN THAT WAY BY MANY RAILROADS.  THE SAME
IS TRUE OF MANY TERMINAL OPERATIONS.  THE MOTOR VEHICLE IS A MUCH MORE
FLEXIBLE UNIT THAN A LOCOMOTIVE SWITCHING CARS, AND IT CAN BE USED TO
GREAT ADVANTAGE AND WITH GREAT ECONOMY IN MANY RAILROAD OPERATIONS. 

"FOR THAT REASON, SOMETHING OF A COMPROMISE WAS REACHED BETWEEN THOSE
TWO OPPOSING VIEWS, AND IT WAS PROVIDED THAT A RAILROAD COULD ACQUIRE A
MOTOR CARRIER IF IT COULD MAKE SPECIAL PROOF THAT THE TRANSACTION WAS
NOT ONLY CONSISTENT WITH THE PUBLIC INTEREST BUT WOULD PROMOTE THE
PUBLIC INTEREST AND WOULD ALSO PROMOTE THE PUBLIC INTEREST IN A SPECIAL
WAY, NAMELY, BY ENABLING SUCH CARRIER OTHER THAN A MOTOR CARRIER TO USE
SERVICE BY MOTOR VEHICLE TO PUBLIC ADVANTAGE IN ITS OPERATIONS.  AND A
FURTHER FINDING WAS REQUIRED, THAT THE ACQUISITION WILL NOT UNDULY
RESTRAIN COMPETITION." 

FN4  56 STAT. 300, SEC. 2: 

"(C)  NOTWITHSTANDING ANY PROVISION OF THIS SECTION OR OF SECTION
203, THE PROVISIONS OF THIS PART  ...  SHALL NOT APPLY - 

"(1)  TO TRANSPORTATION BY MOTOR VEHICLE BY A CARRIER BY RAILROAD
SUBJECT TO PART I, OR BY A WATER CARRIER SUBJECT TO PART III, OR BY A
FREIGHT FORWARDER SUBJECT TO PART IV, INCIDENTAL TO TRANSPORTATION OR
SERVICE SUBJECT TO SUCH PARTS, IN THE PERFORMANCE WITHIN TERMINAL AREAS
OF TRANSFER, COLLECTION, OR DELIVERY SERVICES; BUT SUCH TRANSPORTATION
SHALL BE CONSIDERED TO BE AND SHALL BE REGULATED AS TRANSPORTATION
SUBJECT TO PART I WHEN PERFORMED BY SUCH CARRIER BY RAILROAD, AS
TRANSPORTATION SUBJECT TO PART III WHEN PERFORMED BY SUCH WATER
CARRIER, AND AS TRANSPORTATION OR SERVICE SUBJECT TO PART IV WHEN
PERFORMED BY SUCH FREIGHT FORWARDER  ..." 

SEE CONFERENCE REPORT, H. REP. NO. 2832, 76TH CONG., 3D SESS., SEC.
17(B), P. 74. 

FN5  PENNSYLVANIA TRUCK LINES - CONTROL - BARKER, 1 M.C.C. 101, 113;
5 M.C.C. 9.  SIMILAR FINDING WAS MADE IN ILLINOIS CENTRAL R. CO.,
COMMON CARRIER APPLICATION, 12 M.C.C. 485; GULF, M. & N.R. CO., COMMON
CARRIER APPLICATION, 18 M.C.C. 721; MISSOURI PACIFIC R. CO., EXTENSION
OF OPERATIONS - ILLINOIS, 19 M.C.C. 605; WILLETT CO. OF IND., EXTENSION
- ILL., IND. AND KY., 21 M.C.C. 405; PACIFIC MOTOR TRUCKING CO., COMMON
CARRIER APPLICATION, 34 M.C.C. 249, 322, PAR. 4. 

THE COMMISSION'S BRIEF, APPENDIX B, LISTS 94 OPINIONS DEALING WITH
TRUCK MOVEMENT OF RAIL FREIGHT. 

FN6  I.C.C. LOCAL FREIGHT TARIFF, RULES, CHARGES AND ALLOWANCES FOR
THE PICK-UP AND DELIVERY SERVICE ON LESS THAN CARLOAD FREIGHT, ISSUED
JANUARY 2, 1942, EFFECTIVE FEBRUARY 6, 1942, P. 9: 

"ITEM NO. 30.  TERRITORIAL BOUNDARIES.  (A) EXCEPT AS OTHERWISE
SPECIFICALLY INDICATED IN SECTION 2, PICK-UP OR DELIVERY SERVICE WILL
BE CONFINED WITHIN THE CORPORATE LIMITS OF CITIES OR TOWNS; AT POINTS
NOT HAVING CORPORATE LIMITS, WITHIN A RADIUS OF ONE MILE OF CARRIER'S
FREIGHT STATION." 

SEE ALSO PICK-UP AND DELIVERY IN OFFICIAL TERRITORY, 218 I.C.C. 441,
445; DISSENT, 483-84; PICK-UP OF LIVESTOCK IN ILLINOIS, IOWA AND
WISCONSIN, 238 I.C.C. 671; 248 I.C.C. 385, 391, 397; 251 I.C.C. 549;
MORGAIN FORWARDING CO., PICK-UP AND STORAGE, 258 I.C.C. 547, 771;
EMPIRE CARPET CORP. V. BOSTON & M.R. CO., 258 I.C.C. 697.  ALSO SEE,
SEC. 202(C) OF PART II, INTERSTATE COMMERCE ACT, 54 STAT. 920, 56 STAT.
300. 

FN7  10 M.C.C. 235-36: 

"WE ARE WITHOUT JURISDICTION TO COMPEL COORDINATED SERVICE BETWEEN
CARRIERS BY RAIL AND CARRIERS BY MOTOR VEHICLE.  IT COULD ONLY BE
ACCOMPLISHED THROUGH THE MEDIUM OF THROUGH ROUTES AND JOINT RATES AND
WE HAVE NO POWER TO REQUIRE THEIR ESTABLISHMENT.  IT FOLLOWS THAT ANY
SUCH PLAN MUST BE DEPENDENT ON VOLUNTARY COOPERATION.  WHILE
PROTESTANTS SAY THAT THEY ARE WILLING TO ENTERTAIN PROPOSALS, THEY HAVE
NOT DEVELOPED A PLAN NOR DO THEY SUGGEST WHAT GENERAL FORM IT MIGHT
TAKE. 

  .         .         .         .         . 

"UPON THE EVIDENCE, THEREFORE, WE ARE PERSUADED THAT COORDINATED
SERVICE THROUGH THE VOLUNTARY COOPERATION OF ALL OR SOME OF THE
PROTESTING MOTOR CARRIERS IS NOT HERE PRACTICABLE, AND THAT THE 'USEFUL
PUBLIC PURPOSE' WHICH THE PROPOSED NEW OPERATION WILL SERVE CANNOT 'BE
SERVED AS WELL BY EXISTING LINES OR CARRIERS.'  IT REMAINS TO BE
DETERMINED WHETHER, IN ACCORDANCE WITH THE DEFINITION OF 'PUBLIC
CONVENIENCE AND NECESSITY' IN THE PAN-AMERICAN CASE, (1 M.C.C. 190),
'IT CAN BE SERVED BY APPLICANT WITH THE NEW OPERATION OR SERVICE
PROPOSED WITHOUT ENDANGERING OR IMPAIRING THE OPERATIONS OF EXISTING
CARRIERS CONTRARY TO THE PUBLIC INTEREST.'" 

MR. JUSTICE DOUGLAS, DISSENTING. 
I 

SEC. 207(A) OF THE INTERSTATE COMMERCE ACT AUTHORIZES THE ISSUANCE OF
A CERTIFICATE TO A COMMON CARRIER BY MOTOR VEHICLE IF THE PROPOSED
SERVICE "IS OR WILL BE REQUIRED BY THE PRESENT OR FUTURE PUBLIC
CONVENIENCE AND NECESSITY."  BUT THE PRESENT DECISION ALLOWS THE
COMMISSION TO CONSTRUE THE STATUTE AS IF "RAILROAD CONVENIENCE AND
NECESSITY" RATHER THAN "PUBLIC CONVENIENCE AND NECESSITY" WERE THE
STANDARD. 

I CAN FIND IN THE ACT NO INDICATION WHATSOEVER THAT RAILROAD
APPLICANTS FOR A MOTOR VEHICLE CERTIFICATE ARE TO BE CONSIDERED ANY
MORE FAVORABLY THAN ANY OTHER TYPE OF APPLICANT.  YET IT IS PLAIN THAT
THIS DECISION PERMITS JUST THAT.  FOR IF ANY APPLICANT OTHER THAN A
RAILROAD AFFILIATE WERE BEFORE THE COMMISSION WITH AN APPLICATION FOR A
CERTIFICATE TO SERVE THIS PRECISE TERRITORY, IT WOULD HAVE TO SHOW THAT
EXISTING TRANSPORTATION FACILITIES WERE INADEQUATE TO SERVE THE NEEDS
OF THE PUBLIC EFFICIENTLY.  FN1  NO SUCH SHOWING HAS BEEN MADE HERE. 
NONE HAS BEEN ATTEMPTED. 

THAT NECESSITY IS SOUGHT TO BE AVOIDED BY HOLDING THAT THE MOTOR
CARRIER SERVICE TO BE RENDERED IS "AUXILIARY TO OR SUPPLEMENTAL OF RAIL
SERVICE."  IF, AS THE COMMISSION AT FIRST REQUIRED (KANSAS CITY
SOUTHERN TRANSPORT CO., 10 M.C.C. 221), THIS MOTOR CARRIER SERVICE WAS
RESTRICTED TO GOODS WHICH HAD A PRIOR OR SUBSEQUENT RAIL HAUL, THE
SERVICE MIGHT PROPERLY BE DESIGNATED AS AN AUXILIARY OR SUPPLEMENTAL
ONE.  BUT THE COMMISSION CHANGED ITS POSITION AND WITHDREW THAT
CONDITION.  KANSAS CITY SOUTHERN TRANSPORT CO., 28 M.C.C. 5.  THE KEY
POINT CONDITION WAS SUBSTITUTED.  BETWEEN THOSE POINTS THE RAILROAD
WILL OPERATE LIKE ANY MOTOR CARRIER.  THE SERVICE WHICH IT SEEKS TO
RENDER IS NOT A COMBINED RAIL-AND-TRUCK SERVICE.  AS THE COMMISSION
STATES IN ITS REPORT IN THE PRESENT CASE, "THE RAILROAD, THROUGH ITS
SUBSIDIARY, MERELY SEEKS THE SUBSTITUTION OF A MORE EFFICIENT FOR A
LESS EFFICIENT MEANS OF SERVICE."  THIS "SUBSTITUTED" SERVICE DIFFERS
FROM THE ADEQUATE INDEPENDENT MOTOR CARRIER SERVICE ALREADY EXISTING
ONLY IN ITS BEING UNDER RAILROAD CONTROL.  IN THAT RESPECT AND IN THAT
RESPECT ALONE IS THE SERVICE OF A NEW AND DIFFERENT CHARACTER. 

THE COMMISSION JUSTIFIES THAT "SUBSTITUTION" OF SERVICE ON THE
GROUNDS OF THE OPERATING CONVENIENCE OF THE RAILROAD AND A REDUCTION IN
ITS COSTS.  THAT IS A STANDARD OF "RAILROAD" NOT "PUBLIC" CONVENIENCE. 
WOULD IT BE THOUGHT FOR A MOMENT THAT MOTOR CARRIERS COULD OBTAIN
AUTHORITY TO BUILD A NEW COMPETING RAILROAD BY ANY SUCH STANDARD OF
"MOTOR CARRIER" CONVENIENCE? 

WHETHER IT IS WISE POLICY FOR THE RAILROADS TO ENTER AND DOMINATE
THIS FIELD IS NEITHER FOR US NOR THE COMMISSION TO DECIDE.  IF THE
RAILROADS ARE TO BE GIVEN THIS PREFERRED TREATMENT WHEN THEY SEEK TO
SUBSTITUTE MOTOR CARRIER SERVICE FOR RAIL SERVICE, THE AUTHORITY SHOULD
COME FROM CONGRESS, NOT THIS COURT.  MEANWHILE, WE SHOULD BE ALERT TO
SEE TO IT THAT ADMINISTRATIVE DISCRETION DOES NOT BECOME THE VEHICLE
FOR RESHAPING THE LAWS WHICH CONGRESS WRITES. 

                                  II 

IF THE RAILROAD COMPANY WAS ACQUIRING AN EXISTING MOTOR CARRIER TO
RENDER THIS SERVICE, THE COMMISSION COULD APPROVE THE ACQUISITION ONLY
IF IT FOUND, AMONG OTHER THINGS, THAT THE ACQUISITION WOULD "NOT UNDULY
RESTRAIN COMPETITION."  49 U.S.C. SEC. 5(2)(B).  SEE MCLEAN TRUCKING
CO. V. UNITED STATES, 321 U.S. 67.  THIS PROVISION WAS INSERTED SO AS
TO PROTECT THE MOTOR CARRIER INDUSTRY FROM THE DOMINATION OF OTHER
TYPES OF CARRIERS WHICH "MIGHT USE THE CONTROL AS A MEANS TO STRANGLE,
CURTAIL, OR HINDER PROGRESS IN HIGHWAY TRANSPORTATION FOR THE BENEFIT
OF THE OTHER COMPETING TRANSPORTATION."  79 CONG. REC. 12206. 

THE SAME STANDARD SHOULD BE APPLIED WHETHER THE RAILROADS ENTER THE
MOTOR CARRIER FIELD BY ACQUISITION OF EXISTING FACILITIES OR BY
ESTABLISHMENT OF THEIR OWN MOTOR CARRIER AFFILIATES.  THE
POTENTIALITIES FOR ABUSE MAY BE AS GREAT IN ONE CASE AS IN THE OTHER. 
RAILROADS, LIKE OTHER BUSINESS ENTERPRISES, ARE SUBJECT TO THE ANTI
TRUST LAWS EXCEPT AS CONGRESS HAS CREATED EXEMPTIONS FOR THEM.  GEORGIA
V. PENNSYLVANIA R. CO., 324 U.S. 439.  AND THE ANTI-TRUST POLICY IS ONE
OF THE COMPONENTS OF THE PUBLIC INTEREST WHICH THE COMMISSION IS
SUPPOSED TO PROTECT IN THE TRANSPORTATION FIELD.  MCLEAN TRUCKING CO.
V. UNITED STATES, SUPRA. 

THE PRESERVATION OF HEALTHY COMPETITIVE CONDITIONS MUST THEREFORE BE
AN INGREDIENT OF "PUBLIC CONVENIENCE AND NECESSITY" WHICH THE
COMMISSION IS UNDER THE DUTY TO DETERMINE IN ISSUING CERTIFICATES UNDER
SEC. 207(A).  CERTAINLY THE EFFECT ON COMPETITION LOOMS LARGE WHEN ONE
TYPE OF CARRIER SEEKS TO ENTER ANOTHER FIELD OF TRANSPORTATION.  THE
COMMISSION PAID LIP-SERVICE TO THAT POLICY WHEN IT SAID IN THE PRESENT
CASE THAT THE RESTRICTED SERVICE TO BE RENDERED BY THIS RAILROAD
AFFILIATE WOULD NOT APPEAR TO BE "DIRECTLY COMPETITIVE OR UNDULY
PREJUDICIAL TO THE OPERATIONS OF ANY OTHER MOTOR CARRIER."  BUT WHERE
IS THE EVIDENCE TO SUPPORT THAT FINDING?  I DO NOT FIND IT.  IT IS
SUGGESTED THAT THERE CAN BE NO COMPETITION BECAUSE THE RAILROAD NOW HAS
THE BUSINESS.  BUT THE RAILROAD IS NOT RESTRICTED TO BUSINESS WHICH IT
NOW HAS.  BETWEEN THE KEY-POINTS IT IS ENTITLED TO ANY AND ALL BUSINESS
WHICH IT CAN GET.  EVERY FUTURE MOVEMENT OF FREIGHT WILL BE THE SUBJECT
OF COMPETITION.  IF, AS ASSUMED, THE PRESENT RAILROAD SERVICE IS POOR
AS COMPARED WITH THE PROPOSED NEW MOTOR CARRIER SERVICE, A NEW AND
IMPORTANT COMPETITIVE ELEMENT WILL CERTAINLY BE INTRODUCED.  THE
RAILROAD WANTS THIS BROAD CERTIFICATE SO IT CAN BETTER COMPETE WITH
EXISTING MOTOR CARRIERS.  IF THE RAILROAD REALLY WANTS A PURELY
AUXILIARY SERVICE, LET THE CERTIFICATE BE LIMITED TO COMMODITIES WHICH
HAVE A PRIOR OR SUBSEQUENT RAIL HAUL.  BUT IT IS NOT SO CONDITIONED. 
THE RAILROAD IS ENTERING THE MOTOR CARRIER FIELD AND RENDERING A PURE
MOTOR CARRIER SERVICE.  IF THE POLICY OF CONGRESS IS TO BE HONORED,
THERE MUST BE A FINDING SUPPORTED BY EVIDENCE THAT COMPETITION WILL NOT
BE UNDULY RESTRAINED.  ON THIS RECORD NO SUCH FINDING HAS BEEN OR CAN
BE MADE. 

FN1  NORTON, COMMON CARRIER APPLICATION, 1 M.C.C. 114; C & D OIL CO.,
CONTRACT CARRIER APPLICATION, 1 M.C.C. 329; CARR, CONTRACT CARRIER
APPLICATION, 2 M.C.C. 263, 269; IRVEN G. SAAR, COMMON CARRIER
APPLICATION, 2 M.C.C. 729; MERRILL & HAMEL, COMMON CARRIER APPLICATION,
8 M.C.C. 115, 117; BOYLES & LUTEN, COMMON CARRIER APPLICATION, 8 M.C.C.
593; WHITE CIRCLE LINE, COMMON CARRIER APPLICATION, 16 M.C.C. 516. 

MR. JUSTICE BLACK AND MR. JUSTICE RUTLEDGE JOIN IN THIS DISSENT. 
..END :





AMERICAN TRUCKING ASSNS. V. U.S., 326 U.S. 77 


NO. 558.  ARGUED MARCH 28, 29, 1945.  - DECIDED JUNE 18, 1945.  - 56
F.SUPP.  394, REVERSED. 


1.  UNDER SECS. 206(A) AND 207(A) OF PART II OF THE INTERSTATE
COMMERCE ACT, A RAILROAD FILED SEVERAL APPLICATIONS FOR CERTIFICATES
AUTHORIZING MOTOR CARRIER OPERATIONS AUXILIARY TO AND SUPPLEMENTAL OF
ITS RAIL SERVICE.  SOME OF THE ROUTES INVOLVED WERE WHOLLY WITHIN A
STATE, OTHERS CROSSED STATE LINES, AND MANY WERE CONTIGUOUS.  HELD
THAT, IN REFERRING EACH APPLICATION TO A JOINT BOARD COMPOSED OF ONE
MEMBER FROM EACH STATE IN WHICH THE APPLICATION SHOWED THAT OPERATIONS
WERE TO BE CONDUCTED, THE COMMISSION COMPLIED WITH SEC. 205(A).  P.
81. 

2.  IN THE LIGHT OF THE RULING OF THIS COURT ON THE ADMISSIBILITY OF
CERTAIN EVIDENCE, THE COMMISSION MAY DEEM IT DESIRABLE TO CONSOLIDATE
HEARINGS ON THE APPLICATIONS, BUT THAT IS A MATTER FOR ADMINISTRATIVE
DISCRETION.  P. 83. 

3.  IN PASSING UPON THE RAILROAD'S APPLICATIONS FOR CERTIFICATES
AUTHORIZING AUXILIARY MOTOR CARRIER OPERATIONS, THE JOINT BOARDS AND
THE COMMISSION SHOULD HAVE ADMITTED EVIDENCE OF THE FLOW OF TRAFFIC BY
TRUCK FROM POINTS COVERED IN ONE APPLICATION TO POINTS COVERED BY OTHER
APPLICATIONS AND EVIDENCE OF THE EFFECT OF THE RAILROAD'S MOTOR CARRIER
OPERATIONS, PRESENT AND PROSPECTIVE, ON OVER-THE-ROAD MOTOR CARRIERS. 
OTHER COMPETENT AND MATERIAL EVIDENCE WHICH PROTESTANTS MAY OFFER AS TO
THE ECONOMIC EFFECT ON THE NON-RAIL MOTOR CARRIERS SHOULD ALSO BE
RECEIVED.  THE RAILROAD SHOULD BE REQUIRED TO FURNISH NEEDED
STATISTICAL EVIDENCE WHICH IS REASONABLY AVAILABLE TO IT, AND MAY
SUBMIT EVIDENCE ON ITS OWN BEHALF.  THIS SPECIFICATION OF ADMISSIBLE
EVIDENCE IS WITHOUT PREJUDICE TO THE DISCRETION OF THE COMMISSION OR
THE JOINT BOARDS IN RECEIVING OTHER EVIDENCE DEEMED BY THEM OR EITHER
OF THEM MATERIAL TO THE SOLUTION OF THE ISSUES BETWEEN THE PARTIES.  P.
85. 

4.  IN DETERMINING WHETHER MOTOR CARRIER SERVICE BY A RAILROAD IS
REQUIRED BY PUBLIC CONVENIENCE AND NECESSITY, THE COMMISSION MUST WEIGH
THE ADVANTAGES OF IMPROVED RAILROAD SERVICE AGAINST ANY SERIOUS
IMPAIRMENT OF OVER-THE-ROAD MOTOR CARRIER SERVICE.  INTERSTATE COMMERCE
COMMISSION V. PARKER, ANTE, P. 60.  P. 86. 

5.  OBJECTIONS THAT THE RAILROAD AS A MOTOR CARRIER HAS BEEN
PERMITTED THROUGH OTHER PROCEEDINGS TO FILE TARIFFS VIOLATIVE OF SEC.
217 OF PART II OF THE INTERSTATE COMMERCE ACT, AND HAS BEEN IMPROPERLY
EXEMPTED BY THE COMMISSION FROM CERTAIN ACCOUNTING REQUIREMENTS OF SEC.
220, CAN NOT SUSTAIN A PROTEST AGAINST ISSUANCE OF A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY UNDER SECS. 206(A) AND 207(A).  P.
86. 

6.  UPON THE EVIDENCE, THE DEFENSE OF LACHES TO THE SUIT TO SET ASIDE
THE COMMISSION'S ORDERS GRANTING THE CERTIFICATES IN THIS CASE CAN NOT
BE SUSTAINED.  P. 87. 

7.  BECAUSE OF THE WAR EMERGENCY, AND THE FACT THAT SOME TRUCKS ARE
BEING OPERATED UNDER CERTIFICATES ISSUED ON THE APPLICATIONS, THE
MANDATE HEREIN IS STAYED UNTIL AUGUST 1, 1945, TO ALLOW OPPORTUNITY FOR
SUCH STEPS AS THE PARTIES MAY DEEM ADVISABLE.  P. 87. 

AMERICAN TRUCKING ASSOCIATIONS, INC. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF VIRGINIA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DISMISSING
THE COMPLAINT IN A SUIT TO SET ASIDE ORDERS OF THE INTERSTATE COMMERCE
COMMISSION. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL INVOLVES THE APPLICABILITY BY THE INTERSTATE COMMERCE
COMMISSION OF THE LEGAL CRITERIA FOR THE ISSUANCE OF CERTIFICATES OF
CONVENIENCE AND NECESSITY FOR MOTOR TRUCK OPERATION BY A RAILROAD WHICH
WERE DISCUSSED IN THE OPINION IN INTERSTATE COMMERCE COMMISSION V.
PARKER, ANTE, P. 60. 

IN THESE APPLICATIONS LEGH R. POWELL AND HENRY W. ANDERSON, RECEIVERS
OF THE SEABOARD AIR LINE RAILWAY COMPANY, SOUGHT CERTIFICATES OF
CONVENIENCE AND NECESSITY UNDER SECTIONS 206(A) AND 207(A), MOTOR
CARRIER ACT, 1935, 49 STAT. 551, AS AMENDED BY THE TRANSPORTATION ACT
OF 1940, INTERSTATE COMMERCE ACT, PART II, 54 STAT. 923, FOR THE
OPERATION OF MOTOR TRUCKS AS AUXILIARY TO AND SUPPLEMENTAL OF THE
RAILROAD OPERATION OF SEABOARD.  THESE MOTOR ROUTES WERE SOUGHT TO
IMPROVE THE DELIVERY OF LESS-THAN-CARLOAD FREIGHT TO WAY STATIONS OF
THE RAILROAD.  FOURTEEN APPLICATIONS ARE INVOLVED.  FN1  THE ROUTES IN
ISSUE PARALLELED THE MAIN LINE OF THE SEABOARD FOR THE GREATER PORTION
OF THE DISTANCE BETWEEN RICHMOND, VIRGINIA, AND JACKSONVILLE, FLORIDA. 
OTHER CONTROVERTED ROUTES SERVED SHORTER RAILWAY LINES IN NORTH
CAROLINA, SOUTH CAROLINA AND FLORIDA.  STILL OTHER SIMILAR MOTOR ROUTES
ARE OPERATED BY THE SEABOARD UNDER ORDERS OF THE COMMISSION WHICH ARE
NOT NOW IN CONTROVERSY.  WELL ABOVE A HUNDRED WAY STATIONS WILL BE
SERVED BY THE PROPOSED APPLICATIONS.  OBJECTIONS TO THE APPLICATIONS
WERE MADE BY EXISTING MOTOR CARRIERS ALONG THE ROUTES AND BY VARIOUS
TRUCKING ORGANIZATIONS. 

THE COMMISSION SET THE APPLICATIONS FOR HEARING BEFORE JOINT BOARDS
PURSUANT TO ITS INTERPRETATION OF SEC. 205(B), MOTOR CARRIER ACT OF
1935, AS AMENDED, SEC. 20(C), TRANSPORTATION ACT OF 1940.  DIVERSE
RECOMMENDED REPORTS AND ORDERS WERE ISSUED BY THE JOINT BOARDS.  A
NUMBER OF THE APPLICATIONS WERE CONSOLIDATED FOR ARGUMENT BEFORE THE
COMMISSION; OTHERS WERE DEALT WITH ON THE EXCEPTIONS TO THE JOINT BOARD
REPORTS OR BY INDIVIDUAL HEARING.  AS THE SEABOARD WAS THE ONLY
APPLICANT AND THE ISSUES WERE SIMILAR, THE APPLICATIONS WERE DISPOSED
OF AS A SINGLE PROCEEDING.  SEABOARD AIR LINE R. CO., MOTOR OPERATIONS
GASTON- GARNETT, S.C., 17 M.C.C. 413; 21 M.C.C. 773; 28 M.C.C. 5; 34
M.C.C. 441. 

THE COMMISSION GRANTED THE APPLICATIONS UPON A FINDING THAT THE
PROPOSED MOTOR OPERATIONS WERE A SPECIALIZED TYPE COORDINATED WITH RAIL
OPERATIONS.  SEE THOMSON V. UNITED STATES, 321 U.S. 19.  THE SPECIALLY
CONSTITUTED DISTRICT COURT AFFIRMED THE ORDER OF THE COMMISSION AGAINST
ATTACK BECAUSE THE CERTIFICATES WERE GRANTED WITHOUT REGARD TO THEIR
EFFECT ON EXISTING MOTOR CARRIERS - A GROUND CONSIDERED TODAY IN
INTERSTATE COMMERCE COMMISSION V. PARKER, SUPRA - AND OVER THE
ADDITIONAL OBJECTIONS THAT THE JOINT BOARDS WERE IMPROPERLY
CONSTITUTED, THAT MATERIAL EVIDENCE ON THE EFFECT OF THE PROPOSED
OPERATIONS ON THE EXISTING OR OVER-THE-ROAD MOTOR TRUCK SERVICE WAS
EXCLUDED BY THE JOINT BOARDS AND THE COMMISSION AND THAT THE SEABOARD
WAS EXEMPTED FROM THE TARIFF PROVISIONS OF SEC. 217 AND THE ACCOUNTS
AND RECORD PROVISION OF SEC. 220 AND THE REGULATIONS THEREUNDER.  THE
APPELLEES ASSERTED THAT LACHES BARRED THE COURT PROCEEDINGS TO ENJOIN
THE ORDER OF THE COMMISSION.  THE SAME ISSUES ARE HERE.  NOTHING MORE
NEED BE SAID AS TO THE CONTENTIONS WHICH WERE DISCUSSED IN THE PARKER
CASE.  THE DISTRICT COURT PROCEEDINGS AND THIS APPEAL ARE AUTHORIZED BY
28 U.S.C. SEC. 41(28) AND SECS. 43-48 AND SEC. 345.  FN2 

JOINT BOARDS.  FROM THE EARLIEST HEARING, OBJECTION WAS MADE TO THE
COMPOSITION OF THE JOINT BOARDS.  SECTION 205(A), SO FAR AS PERTINENT
HERE, PROVIDES: 

"THE COMMISSION SHALL, WHEN OPERATIONS OF MOTOR CARRIERS OR BROKERS
CONDUCTED OR PROPOSED TO BE CONDUCTED INVOLVE NOT MORE THAN THREE
STATES,  ...  REFER TO A JOINT BOARD FOR APPROPRIATE PROCEEDINGS
THEREON, ANY OF THE FOLLOWING MATTERS ARISING IN THE ADMINISTRATION OF
THIS PART WITH RESPECT TO SUCH OPERATIONS:  APPLICATIONS FOR
CERTIFICATES, PERMITS, OR LICENSES; ...  THE JOINT BOARD TO WHICH ANY
SUCH MATTER IS REFERRED SHALL BE COMPOSED SOLELY OF ONE MEMBER FROM
EACH STATE WITHIN WHICH THE MOTOR-CARRIER OR BROKERAGE OPERATIONS
INVOLVED IN SUCH MATTER ARE OR ARE PROPOSED TO BE CONDUCTED  ..." 

THE APPLICATIONS WERE FOR SHORT ROUTES OF VARYING LENGTHS UP TO
NEARLY TWO HUNDRED MILES.  MANY WERE CONTIGUOUS.  SOME CROSSED STATE
LINES.  OTHERS WERE WHOLLY WITHIN A STATE.  THE COMMISSION REFERRED
EACH APPLICATION TO A JOINT BOARD COMPOSED OF ONE MEMBER FROM THE STATE
OR STATES IN WHICH THE ROUTE INVOLVED IN THE PARTICULAR APPLICATION WAS
SITUATED. 

AS THE SERIES OF APPLICATIONS COVER CONTINUOUS MOTOR ROUTES FOR A
LARGE PORTION OF THE RAILROAD, APPELLANTS CONTEND THAT THE COMMISSION
SHOULD HAVE CONSOLIDATED THESE APPLICATIONS, CONSTITUTED A BOARD AND
MADE ITS REFERENCE AS THOUGH THERE WERE ONLY A SINGLE APPLICATION FOR
MOTOR CARRIER SERVICE WHICH WAS TO BE FULLY INTEGRATED WITH THE
SEABOARD SYSTEM IN THE SIX STATES WHICH THE RAILROAD TRAVERSES, OR AT
LEAST VIRGINIA, NORTH CAROLINA, SOUTH CAROLINA AND FLORIDA, IN WHICH
STATES ARE LOCATED ALL THE ROUTES FOR WHICH APPLICATIONS ARE MADE.  IF
THIS POSITION IS CORRECT THE JOINT BOARDS SHOULD HAVE HAD FOUR OR SIX
MEMBERS INSTEAD OF THE ONE OR TWO MEMBERS WHO ACTUALLY COMPOSED THEM. 
WE ARE OF THE OPINION THAT THE STATUTE DOES NOT SUPPORT APPELLANTS. 

IT WILL BE NOTED THAT SEC. 205(A) REQUIRES THAT APPLICATIONS FOR
CERTIFICATES BE REFERRED TO JOINT BOARDS COMPOSED SOLELY OF MEMBERS
FROM THE STATE WITHIN WHICH THE OPERATIONS ARE PROPOSED TO BE
CONDUCTED.  IN THESE APPLICATIONS THE PROPOSAL IS TO CONDUCT OPERATIONS
IN A SINGLE STATE OR IN SOME INSTANCES IN TWO STATES.  THE ONLY SOURCE
OF KNOWLEDGE FOR THE COMMISSION AS TO PROPOSED OPERATIONS WERE THE
APPLICATIONS.  IT SEEMS NECESSARY FOR IT, THEREFORE, TO RELY ON THE
REPRESENTATIONS IN THE APPLICATIONS IN DETERMINING THEIR SCOPE AND IN
DESIGNATING THE JOINT BOARDS TO HEAR THEM. 

THE COMMISSION HAS SO INTERPRETED THE ACT.  SEE ARGO & COLLIER TRUCK
LINES, COMMON CARRIER APPLICATION, 27 M.C.C. 563, 566; ATLANTIC COAST
LINE R. CO., EXTENSION OF OPERATION, 30 M.C.C. 490, 491-2.  THESE
APPLICATIONS DID NOT DISCLOSE OR PROPOSE ANY INTERCHANGE OR UNIFICATION
OF THE TRAFFIC AMONG THE RESPECTIVE ROUTES.  ANY ONE OF THEM, OR ALL
EXCEPT ONE, MIGHT HAVE BEEN REFUSED BY THE COMMISSION.  CONSEQUENTLY,
THE COMMISSION PROPERLY REFERRED EACH APPLICATION TO A BOARD HAVING A
MEMBER SOLELY FROM THE STATE OR STATES IN WHICH THE APPLICATION
PROPOSES TO CONDUCT OPERATIONS. 

BUT THE APPELLANT CONTENDS THAT THE GRANT OF APPELLEE'S APPLICATIONS
ALLOWS A UNIFIED SERVICE IN THREE STATES AND THAT APPELLEE MAY HAVE
INTENDED THIS RESULT WHEN IT FILED THE SEVERAL APPLICATIONS.  ASSUMING
THIS TO BE TRUE, IT DOES NOT MAKE THE COMMISSION'S ACTION IN THE
DESIGNATION OF SEPARATE BOARDS UNLAWFUL.  IT IS IMPOSSIBLE FOR THE
COMMISSION TO PREDICT ACCURATELY SUCH A RESULT OR DETERMINE THE
EXISTENCE OF SUCH AN INTENT AT THE TIME AN APPLICATION IS FILED - AT
WHICH TIME THE COMMISSION MUST DESIGNATE A BOARD FOR HEARINGS.  IN MOST
INSTANCES THE INTENT OR PURPOSE OF THE APPLICANT WOULD BECOME APPARENT
ONLY WHEN HEARINGS WERE HELD ON THE APPLICATIONS.  THUS THE APPELLANT'S
POSITION WOULD REQUIRE REASSIGNMENT OF CASES TO DIFFERENTLY CONSTITUTED
JOINT BOARDS AS THE SCOPE OF THE APPLICATION WAS NARROWED OR EXPANDED
BY THE TESTIMONY AND ARGUMENTS OF THE PARTIES OR CONCLUSION OF THE
JOINT BOARDS OR THE COMMISSION IN THE COURSE OF THE HEARING.  SEE
SEABOARD AIR LINE R. CO., MOTOR OPERATIONS - GASTON-GARNETT, S.C., 17
M.C.C. 413, 416-17.  IT MAY BE THAT IN THE LIGHT OF OUR RULING ON THE
ADMISSIBILITY OF CERTAIN EVIDENCE THE COMMISSION MAY WISH TO
CONSOLIDATE HEARINGS ON THE APPLICATIONS, BUT THAT IS A MATTER FOR
ADMINISTRATIVE DISCRETION. 

EXCLUDED EVIDENCE.  APPELLANTS THROUGHOUT THE PROCEEDINGS HAVE SOUGHT
TO INTRODUCE EVIDENCE BOTH BEFORE THE JOINT BOARDS AND THE COMMISSION
AS TO THE ECONOMIC EFFECT ON THE EXISTING MOTOR CARRIERS OF THE
PROPOSED RAILWAY OPERATION OF MOTOR TRUCKS AND HAVE PERSISTED IN THEIR
OBJECTIONS AT EACH STAGE OF THE PROCEEDINGS.  THE JOINT BOARDS REFUSED
TO PERMIT EVIDENCE AS TO CONDITIONS ON ANY ROUTE EXCEPT THAT COVERED BY
THE APPLICATION UNDER CONSIDERATION.  PROTESTANTS MADE REPEATED EFFORTS
BEFORE THE COMMISSION TO SECURE CONSOLIDATION OF THE JOINT BOARD
HEARINGS BUT WERE UNSUCCESSFUL.  AFTER THE GRANT OF THE CERTIFICATES
WITH THE LIMITATION OF OPERATIONS TO A PRIOR OR SUBSEQUENT MOVEMENT BY
RAIL ON JULY 11, 1939, 17 M.C.C. 413, AND FEBRUARY 17, 1940, 21 M.C.C.
773, THE PROCEEDINGS WERE REOPENED TO CONSIDER THE MODIFICATION OF THE
RAIL MOVEMENT REQUIREMENT IN PRIOR ORDERS.  FN3  SUBSTITUTION OF THE
KEY-POINT REQUIREMENT OR ITS EQUIVALENT FOR RAIL MOVEMENT WAS MADE ON
JANUARY 24, 1941, KANSAS CITY SOUTHERN TRANSPORT CO., COMMON CARRIER
APPLICATION, 28 M.C.C. 5.  ON OCTOBER 3, 1941, ALL APPLICATIONS WERE
REOPENED SOLELY FOR REEXAMINATION OF CONDITION 3, THE KEY-POINT
CONDITION, AS TO WHETHER IT "SHOULD BE MODIFIED AND, IF SO, THE EXTENT
OF SUCH MODIFICATION."  THIS HEARING WAS ON ALL APPLICATIONS AND BEFORE
AN EXAMINER OF THE COMMISSION ALONE.  AT THAT HEARING THE PROTESTANTS
PRESSED FOR THE INTRODUCTION AND ADMISSION OF FURTHER EVIDENCE AS SET
UP IN THEIR PETITION TO WHICH REFERENCE IS ABOUT TO BE MADE.  34 M.C.C.
441, 442.  THIS PETITION SOUGHT PERMISSION TO INTRODUCE EVIDENCE AS TO
THE ECONOMIC EFFECT ON THE INDEPENDENT TRUCKING INDUSTRY AND A
DIRECTION TO THE SEABOARD TO FURNISH STATISTICS AS TO THE TRAFFIC IT
PROPOSED TO HANDLE BY TRUCK.  FN4  THE PETITION WAS DENIED WITHOUT A
STATEMENT AS TO THE COMMISSION'S REASONS FOR THE DENIAL.  34 M.C.C.
441, 442.  THIS WE THINK WAS ERRONEOUS. 

THE BILL OF COMPLAINT SETS UP IN SECTIONS VIII AND XI NUMEROUS TYPES
OR ITEMS OF EVIDENCE WHICH IT ALLEGES WERE EXCLUDED BY THE JOINT BOARDS
OR THE EXAMINER.  SOME OF THESE ITEMS, SUCH AS "THE REFUSAL OF THE
RAILROAD TO ENTER INTO ARRANGEMENTS WITH THE INDEPENDENT MOTOR
CARRIERS" OR "USE OF RAILROAD FACILITIES AND EMPLOYEES," HARDLY REQUIRE
PROOF.  THEY ARE ADMITTED BY ALL PARTIES.  OTHER ITEMS HAVE HAD
CONSIDERABLE PROOF INTRODUCED AND MORE MAY BE DEEMED BY THE COMMISSION
CUMULATIVE OR UNNECESSARY.  "COST OF OPERATIONS" WOULD BE AN EXAMPLE. 
THERE IS CONSIDERABLE OVERLAPPING OF SOME CATEGORIES OF PROPOSED
EVIDENCE.  FOR INSTANCE ONE ITEM IS "THE ECONOMIC EFFECT ON EXISTING
MOTOR CARRIERS" AND "DESTRUCTIVE COMPETITION FLOWING FROM SUBSIDIZED
TRUCK OPERATIONS."  THEREFORE WE DO NOT DETERMINE THAT ALL THE ITEMS OF
EVIDENCE AS SET OUT BY APPELLANTS, EITHER IN THEIR BILL OF COMPLAINT OR
THE PETITION BEFORE THE COMMISSION, WERE IMPROPERLY EXCLUDED. 

WE THINK THAT IT IS SUFFICIENT TO SAY THAT THE JOINT BOARDS AND THE
COMMISSION SHOULD HAVE ADMITTED EVIDENCE OF THE FLOW OF TRAFFIC BY
TRUCK FROM POINTS COVERED IN ONE APPLICATION TO POINTS COVERED BY OTHER
APPLICATIONS AND EVIDENCE OF THE EFFECT OF THE MOTOR TRAFFIC, DEVELOPED
OR PROSPECTIVE ON ALL SEABOARD ROUTES FOR WHICH APPLICATIONS ARE
PENDING OR ALREADY GRANTED, ON THE OVER-THE-ROAD MOTOR CARRIERS. 
FURTHERMORE OTHER COMPETENT AND MATERIAL EVIDENCE WHICH THE PROTESTANTS
MAY PRODUCE AS TO THE ECONOMIC EFFECT ON THE NON-RAIL MOTOR CARRIERS
SHOULD BE RECEIVED.  THE APPLICANT WILL OF COURSE BE REQUIRED TO
FURNISH NEEDED STATISTICAL EVIDENCE WHICH IS REASONABLY AVAILABLE TO IT
AND WILL HAVE OPPORTUNITY TO SUBMIT EVIDENCE UPON ITS OWN PART.  THIS
SPECIFICATION OF ADMISSIBLE EVIDENCE SHALL NOT BE DEEMED TO RESTRICT
THE DISCRETION OF THE COMMISSION OR THE JOINT BOARDS IN RECEIVING OTHER
EVIDENCE DEEMED BY THEM OR EITHER OF THEM MATERIAL TO AID IN THE
SOLUTION OF THE ISSUES BETWEEN THE PARTIES. 

WHILE AS POINTED OUT BY THE BRIEF OF THE SEABOARD NONE OF THIS
EVIDENCE GOES "TO THE INHERENT NATURE OF AUXILIARY MOTOR SERVICE
PERFORMED BY RAIL CARRIERS," IT MAY BE DECISIVE IN THE COMMISSION'S
DETERMINATION OF WHETHER TO GRANT THE APPLICATIONS.  WE HAVE JUST SAID
IN THE PARKER CASE THAT THE COMMISSION MUST WEIGH THE ADVANTAGES OF
IMPROVED RAIL TRAFFIC AGAINST THE INJURY TO THE OVER-THE-ROAD MOTOR
CARRIERS TO DETERMINE WHERE PUBLIC CONVENIENCE AND NECESSITY LIES.  IT
IS A DIFFICULT TASK TO APPRAISE THESE CONFLICTING INTERESTS.  IT IS A
PROBLEM WHICH SHOULD BE SOLVED ONLY AFTER THE RECEIPT BY THE
COMMISSION, UNDER ITS USUAL RULES OF ADMISSIBILITY, OF ALL AVAILABLE
MATERIAL EVIDENCE AS TO THE PROBABLE EFFECT OF THE PROPOSALS ON THE
OPERATIONS BOTH OF THE PROPONENTS OF AND THE PROTESTANTS AGAINST THE
APPLICATIONS.  INTERSTATE COMMERCE COMMISSION V. LOUISVILLE & NASHVILLE
R. CO., 227 U.S. 88, 91; CHICAGO JUNCTION CASE, 264 U.S. 258, 264-65. 
IT IS NOT ENOUGH THAT THE RAILROAD'S MOTOR OPERATIONS ARE FOUND BY THE
COMMISSION TO BE OF A DIFFERENT CHARACTER FROM OVER-THE-ROAD MOTOR
OPERATIONS BECAUSE THEY ARE INTEGRATED WITH RAILROAD OPERATION.  THE
COMMISSION MUST ALSO CONSIDER THE DISADVANTAGE TO THE PUBLIC OF A
SERIOUS IMPAIRMENT OF THE NON-RAIL MOTOR CARRIERS.  THOSE AFFECTED ARE
ENTITLED TO FULLY DEVELOP THE BEARING OF THE PROPOSALS ON THE
TRANSPORTATION AGENCIES WHICH ARE INVOLVED.  THE DISCRETION OF THE
COMMISSION SHOULD BE EXERCISED AFTER CONSIDERATION OF ALL RELEVANT
INFORMATION.    APPELLANTS HAVE OTHER OBJECTIONS TO THE ORDER OF THE
COMMISSION WHICH HAVE BEEN CONSIDERED AND A FEW WORDS NEED TO BE SAID
ABOUT ONLY TWO OF THEM.  IT IS OBJECTED THAT THE RAILROAD AS A MOTOR
CARRIER HAS BEEN PERMITTED THROUGH OTHER PROCEEDINGS TO FILE ILLEGAL
TARIFFS, VIOLATIVE OF SEC. 217 OF PART II OF THE INTERSTATE COMMERCE
ACT, AND HAS BEEN IMPROPERLY EXEMPTED BY THE COMMISSION FROM CERTAIN
ACCOUNTING REQUIREMENTS OF SEC. 220 OF THE SAME PART TO WHICH THE OTHER
MOTOR CARRIERS ARE SUBJECT.  FN5  THESE ARE OBVIOUSLY NOT GROUNDS UPON
WHICH APPELLANTS CAN BASE AN ARGUMENT AGAINST THE GRANT OF A
CERTIFICATE OF CONVENIENCE AND NECESSITY. 

APPELLEES ON THEIR PART SUGGEST THAT THE COMMISSION'S GRANT OF THE
REQUESTED CERTIFICATES SHOULD BE SUSTAINED BECAUSE OF LACHES.  THE
FINAL CERTIFICATE WAS ISSUED ON NOVEMBER 30, 1942, AND THIS SUIT WAS
BROUGHT OCTOBER 21, 1943, ELEVEN MONTHS LATER.  THE APPELLEES' EVIDENCE
AS TO CHANGE OF POSITION IN RELIANCE UPON THE CERTIFICATE IS NOT
IMPRESSIVE.  THERE WAS NO SPECIFIC PROOF OF THE PURCHASE OF EQUIPMENT
IN RELIANCE ON THE CERTIFICATE OR OF FAILURE TO PURCHASE OTHER
EQUIPMENT, SUCH AS RAILROAD CARS, IN RELIANCE ON THE USE OF TRUCKS. 
THERE WAS SOME TESTIMONY OF MINOR ADJUSTMENTS IN METHODS OF OPERATION. 
A NUMBER OF THE ROUTES HAD NOT BEEN PUT IN OPERATION AND OTHERS WERE
ABANDONED.  THE QUESTION OF LACHES WAS NOT PASSED ON BY THE DISTRICT
COURT. 

IN VIEW OF THIS EVIDENCE, WE DO NOT FEEL THE DEFENSE OF LACHES SHOULD
BE SUSTAINED. 

AS SOME TRUCKS ARE BEING OPERATED UNDER CERTIFICATES WHICH WERE
ISSUED ON THESE APPLICATIONS, BECAUSE OF THE PRESENT WAR EMERGENCY WE
DIRECT THAT THE MANDATE HEREIN BE STAYED UNTIL AUGUST 1, 1945, TO ALLOW
OPPORTUNITY FOR SUCH STEPS AS THE RESPECTIVE PARTIES MAY DEEM
ADVISABLE.  SEE YONKERS V. UNITED STATES, 320 U.S. 685, 321 U.S. 745;
PUBLIC SERVICE COMMISSION V. UNITED STATES, 323 U.S. 675.  REVERSED. 

FN1  THE DETAILED SCOPE OF THIRTEEN OF THE APPLICATIONS IS SET OUT IN
THE APPENDICES TO THE REPORTS OF THE COMMISSION, 17 M.C.C. AT 433; 28
M.C.C. AT 25, AND THAT OF SUB-NO. 19 - TAMPA-SEBRING, FLORIDA, ROUTE,
IN 21 M.C.C. AT 776. 

FN2  THE UNITED STATES ANSWERED IN THE DISTRICT COURT AND CONFESSED
ERROR ON ALL POINTS.  THE INTERSTATE COMMERCE COMMISSION AND THE
SEABOARD SUPPORTED THE CHALLENGED ORDER.  THE GOVERNMENT IS REPRESENTED
HERE ONLY BY THE COMMISSION. 

FN3  SUB-NO. 19 WAS MODIFIED IN 34 M.C.C. 441. 

FN4  TWO PARAGRAPHS OF THE PETITION READ AS FOLLOWS: 

"(B)  TO DIRECT THE TAKING OF EVIDENCE FOR THE PURPOSE OF DEVELOPING
AND DETERMINING WHETHER THE PROPOSED AND EXISTING OPERATIONS BY
APPLICANT, CONSIDERED TOGETHER, AND IN CONNECTION WITH ITS
TRANSPORTATION POLICY AND THE TRANSPORTATION POLICY OF RAILROADS,
EXPRESS COMPANIES, WATER CARRIERS, AND RAILROAD ASSOCIATIONS WITH WHICH
IT IS ASSOCIATED, WILL UNDULY RESTRAIN COMPETITION; IMPAIR SOUND
ECONOMIC CONDITIONS IN THE INDEPENDENT TRUCKING INDUSTRY; RESULT IN
UNFAIR AND DESTRUCTIVE COMPETITIVE PRACTICES; DISCRIMINATE AGAINST
SHIPPERS; OR OTHERWISE BE INCONSISTENT WITH THE PROVISIONS OF, OR THE
TRANSPORTATION POLICY DECLARED IN, THE INTERSTATE COMMERCE ACT, AND
WITH THE ANTITRUST LAWS." 

"(F)  TO DIRECT THE SEABOARD AIR LINE RAILWAY TO FURNISH SUCH
STATISTICAL INFORMATION FOR THE RECORD AS MAY BE NECESSARY TO ENABLE
THE COMMISSION TO DETERMINE THE EXTENT, QUANTITY, KIND AND CHARACTER OF
TRAFFIC WHICH SEABOARD AIR LINE RAILWAY HANDLES SUBJECT TO RESTRICTIONS
AGAINST PARTICIPATION BY INDEPENDENT MOTOR CARRIERS, AND THE QUANTITY,
KIND AND CHARACTER OF TRAFFIC WHICH SEABOARD AIR LINE PROPOSES TO
HANDLE BY TRUCK AND UPON WHICH IT RELIES FOR SUPPORT OF ITS APPLICATION
FOR A CERTIFICATE OF CONVENIENCE AND NECESSITY." 

FN5  A METHOD OF OBJECTION TO IMPROPER PRACTICES, SUCH AS
UNREASONABLE TARIFFS OR IRREGULAR ACCOUNTING, BY MOTOR CARRIERS UNDER
INTERSTATE COMMERCE ACT, PART II, IS PROVIDED BY SEC. 204(C), AS
AMENDED. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE
CONCUR FOR THE REASONS STATED IN THE DISSENTING OPINION IN INTERSTATE
COMMERCE COMMISSION V. PAKER, ANTE, P. 74. 
..END :























RAILWAY MAIL ASSN. V. CORSI, 326 U.S. 88 


NO. 691.  ARGUED APRIL 3, 1945.  - DECIDED JUNE 18, 1945.  - 293 N.Y.
315, 56 N.E.2D 721, AFFIRMED. 


ORGANIZATION" TO DENY ANY PERSON MEMBERSHIP BY REASON OF HIS RACE,
COLOR OR CREED, OR TO DENY ANY MEMBER, BY REASON OF RACE, COLOR OR
CREED, EQUAL TREATMENT IN DESIGNATION FOR EMPLOYMENT, PROMOTION OR
DISMISSAL BY ANY EMPLOYER; OTHER SECTIONS PRESCRIBE PENALTIES AND
ENFORCEMENT PROCEDURE.  APPELLANT RAILWAY MAIL ASSOCIATION, AN
ORGANIZATION OF REGULAR AND SUBSTITUTE POSTAL CLERKS, LIMITS ITS
MEMBERSHIP TO PERSONS OF THE CAUCASIAN RACE AND NATIVE AMERICAN
INDIANS.  HELD: 

1.  AN APPEAL FROM A STATE COURT DECLARATORY JUDGMENT THAT SEC. 43
WAS APPLICABLE TO THE APPELLANT AND VALID AS SO APPLIED PRESENTS A
JUSTICIABLE "CASE OR CONTROVERSY" UNDER SECS. 1 AND 2 OF ARTICLE III OF
THE FEDERAL CONSTITUTION.  P. 93. 

2.  SECTION 43 IS NOT VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT AS AN INTERFERENCE WITH APPELLANT'S RIGHT OF
SELECTION OF MEMBERSHIP NOR AS AN ABRIDGMENT OF ITS PROPERTY RIGHTS AND
LIBERTY OF CONTRACT.  P. 93. 

3.  THE FACT THAT APPELLANT IS SUBJECT TO SEC. 43 AS A "LABOR
ORGANIZATION," ALTHOUGH EXCLUDED (AS AN ORGANIZATION OF GOVERNMENT
EMPLOYEES) FROM THE BENEFITS OF COLLECTIVE BARGAINING PROVISIONS OF THE
STATE LABOR LAW, INVOLVES NO DENIAL OF EQUAL PROTECTION OF THE LAWS
UNDER THE FOURTEENTH AMENDMENT.  P. 94. 

4.  AS APPLIED TO APPELLANT, SEC. 43 IS NOT REPUGNANT TO THE
PROVISION OF ART. I, SEC. 8, CL. 7 OF THE FEDERAL CONSTITUTION,
CONFERRING ON CONGRESS POWER OVER THE POSTAL SERVICE.  P. 95. 

5.  CONGRESS HAS NOT SO CLEARLY MANIFESTED AN INTENT TO OCCUPY THE
FIELD OF REGULATION OF ORGANIZATIONS OF FEDERAL EMPLOYEES AS TO EXCLUDE
THE STATE REGULATION HERE INVOLVED.  P. 97. 

RAILWAY MAIL ASSOCIATION V. CORSI, INDUSTRIAL COMMISSIONER OF THE
STATE OF NEW YORK, ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW YORK. 

APPEAL FROM A JUDGMENT UPHOLDING THE CONSTITUTIONALITY OF A STATE LAW
AS APPLIED TO THE APPELLANT ASSOCIATION. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, RAILWAY MAIL ASSOCIATION, QUESTIONED THE VALIDITY OF
RIGHTS LAW WHICH PROVIDE, UNDER PENALTY AGAINST ITS OFFICERS AND
MEMBERS, THAT NO LABOR ORGANIZATION SHALL DENY A PERSON MEMBERSHIP BY
REASON OF RACE, COLOR OR CREED, OR DENY TO ANY OF ITS MEMBERS, BY
REASON OF RACE, COLOR OR CREED, EQUAL TREATMENT IN THE DESIGNATION OF
ITS MEMBERS FOR EMPLOYMENT, PROMOTION OR DISMISSAL BY AN EMPLOYER.  FN1
APPELLANT CONTENDED THAT IT WAS NOT A "LABOR ORGANIZATION" SUBJECT TO
THESE SECTIONS, AND THAT IF THEY WERE HELD TO APPLY TO IT, THEY
VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT OF THE FEDERAL CONSTITUTION AND WERE IN CONFLICT WITH THE
FEDERAL POWER OVER POST OFFICES AND POST ROADS.  ARTICLE I, SEC. 8,
CLAUSE 7, OF THE FEDERAL CONSTITUTION.  THE NEW YORK COURT OF APPEALS
REJECTED THESE CONTENTIONS.  FN2  ON APPEAL TO THIS COURT,
CONSIDERATION OF THE QUESTION OF JURISDICTION WAS POSTPONED TO THE
HEARING ON THE MERITS FOR DETERMINATION OF WHETHER THE CASE PRESENTED A
"CASE OR CONTROVERSY" WITHIN THE MEANING OF THE FEDERAL CONSTITUTION. 
THE JURISDICTION OF THIS COURT RESTS ON SEC. 237(A) OF THE JUDICIAL
CODE. 

THE APPELLANT, RAILWAY MAIL ASSOCIATION, A NEW HAMPSHIRE CORPORATION,
IS AN ORGANIZATION WITH A MEMBERSHIP OF SOME 22,000 REGULAR AND
SUBSTITUTE POSTAL CLERKS OF THE UNITED STATES RAILWAY MAIL SERVICE.  IT
HAS DIVISION AND BRANCH ASSOCIATIONS, THIRTEEN OF SUCH BRANCH
ASSOCIATIONS BEING LOCATED IN DIFFERENT PARTS OF NEW YORK.  ARTICLE III
OF APPELLANT'S CONSTITUTION LIMITS MEMBERSHIP IN THE ASSOCIATION TO
ELIGIBLE POSTAL CLERKS WHO ARE OF THE CAUCASIAN RACE, OR NATIVE
AMERICAN INDIANS.  FN3  CERTAIN OFFICERS AND MEMBERS OF ONE OF
APPELLANT'S BRANCH ASSOCIATIONS RAISED THE QUESTION OF THE VALIDITY OF
ARTICLE III OF APPELLANT'S CONSTITUTION WITH THE APPELLEE, THE
INDUSTRIAL COMMISSIONER OF THE STATE OF NEW YORK, WHO WAS CHARGED WITH
ENFORCEMENT OF SEC. 43.  FACED WITH THE THREAT OF ENFORCEMENT OF THE
STATUTE AGAINST IT, THE APPELLANT FILED SUIT AGAINST THE INDUSTRIAL
COMMISSIONER IN A STATE COURT FOR A DECLARATORY JUDGMENT TO DETERMINE
THE VALIDITY OF SEC. 43, AND RELATED PROVISIONS, AND FOR AN INJUNCTION
RESTRAINING ITS ENFORCEMENT AGAINST THE APPELLANT.  A STATE SUPREME
COURT ENTERED JUDGMENT FOR THE APPELLANT, FINDING THAT IT WAS NOT A
"LABOR ORGANIZATION" AS DEFINED IN SEC. 43 OF THE STATE STATUTE.  FN4
ON APPEAL TO THE APPELLATE DIVISION, THIS JUDGMENT WAS REVERSED, THE
APPELLATE COURT FINDING THAT APPELLANT WAS COVERED BY SEC. 43 AND THAT
SEC. 43 AS APPLIED TO APPELLANT DID NOT VIOLATE THE FEDERAL
CONSTITUTION.  FN5 

ON APPEAL TO THE NEW YORK COURT OF APPEALS, THE JUDGMENT AGAINST THE
APPELLANT WAS AFFIRMED.  THE COURT OF APPEALS NOTED THAT APPELLANT'S
CONSTITUTION PROVIDED THAT ONE OF THE OBJECTS OF THE ASSOCIATION WAS TO
ENABLE RAILWAY POSTAL CLERKS "TO PERFECT ANY MOVEMENT THAT MAY BE FOR
THEIR BENEFIT AS A CLASS OR FOR THE BENEFIT OF THE RAILWAY MAIL SERVICE
..."; FN6  THAT THE INDUSTRIAL SECRETARY OF THE ASSOCIATION  FN7  WAS
TO ASSIST IN THE PRESENTATION OF GRIEVANCES PERTAINING TO SERVICE
CONDITIONS AND ENDEAVOR TO SECURE ADJUSTMENT OF SUCH THROUGH
ADMINISTRATIVE ACTION.  FN8 IT WAS POINTED OUT THAT APPELLANT WAS
AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR AND THAT THE APPELLANT
WAS DESIGNATED A "LABOR UNION" IN THE BULLETIN OF THE UNITED STATES
DEPARTMENT OF LABOR AS WELL AS IN VARIOUS TRADE UNION PUBLICATIONS AND
REPORTS.  APPELLANT'S OWN PUBLICATIONS CLAIMED CREDIT FOR BRINGING "TO
EVERY RAILWAY POSTAL CLERK MANY MATERIAL BENEFITS" AND "MANY ADDITIONAL
MILLIONS OF DOLLARS BROUGHT TO THE POCKETS OF RAILWAY POSTAL CLERKS
EACH YEAR BY THE EFFORTS OF THE ASSOCIATION," AND POINTED OUT THAT
"REFORMS ALWAYS COME AS A RESULT OF DEMANDS FROM THE WORKER.  IF BETTER
CONDITIONS ARE WORTH SECURING, THEY MUST COME AS THE RESULT OF
ORGANIZED EFFORT."  FN9  IN THE LIGHT OF THIS EVIDENCE, THE COURT OF
APPEALS HELD APPELLANT TO BE A "LABOR ORGANIZATION" AS DEFINED IN SEC.
43.  AS HERETOFORE STATED, IT REJECTED APPELLANT'S CONTENTIONS THAT THE
STATUTE, AS APPLIED TO IT, VIOLATED THE FEDERAL CONSTITUTION. 

PRIOR TO CONSIDERATION OF THE ISSUES, IT IS NECESSARY TO DETERMINE
WHETHER APPEAL FROM THIS STATE COURT DECLARATORY JUDGMENT PROCEEDING
PRESENTS A JUSTICIABLE "CASE OR CONTROVERSY" UNDER SECS. 1 AND 2 OF
ARTICLE III OF THE FEDERAL CONSTITUTION.  WE ARE OF THE OPINION THAT IT
DOES.  THE CONFLICTING CONTENTIONS OF THE PARTIES IN THIS CASE AS TO
THE VALIDITY OF THE STATE STATUTE PRESENT A REAL, SUBSTANTIAL
CONTROVERSY BETWEEN PARTIES HAVING ADVERSE LEGAL INTERESTS, A DISPUTE
DEFINITE AND CONCRETE, NOT HYPOTHETICAL OR ABSTRACT.  LEGAL RIGHTS
ASSERTED BY APPELLANT ARE THREATENED WITH IMMINENT INVASION BY
APPELLEES AND WILL BE DIRECTLY AFFECTED TO A SPECIFIC AND SUBSTANTIAL
DEGREE BY DECISION OF THE QUESTIONS OF LAW.  FN10  NASHVILLE, C. & ST.
L.R. CO. V. WALLACE, 288 U.S. 249, 261-62.  SEE AETNA LIFE INS. CO. V.
HAWORTH, 300 U.S. 227, 242; CURRIN V. WALLACE, 306 U.S. 1, 9; GIBBS V.
BUCK, 307 U.S. 66, 76-77; MARYLAND CASUALTY CO. V. PACIFIC COAL & OIL
CO., 312 U.S. 270, 272-73; TENNESSEE COAL CO. V. MUSCODA LOCAL, 321
U.S. 590, 592.  CF. PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510. 

APPELLANT FIRST CONTENDS THAT SEC. 43  FN11  AND RELATED SECS. 41 AND
45 OF THE NEW YORK CIVIL RIGHTS LAW, AS APPLIED TO APPELLANT, OFFENDS
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AS AN INTERFERENCE
WITH ITS RIGHT OF SELECTION TO MEMBERSHIP AND ABRIDGMENT OF ITS
PROPERTY RIGHTS AND LIBERTY OF CONTRACT.  WE HAVE HERE A PROHIBITION OF
DISCRIMINATION IN MEMBERSHIP OR UNION SERVICES ON ACCOUNT OF RACE,
CREED OR COLOR.  A JUDICIAL DETERMINATION THAT SUCH LEGISLATION
VIOLATED THE FOURTEENTH AMENDMENT WOULD BE A DISTORTION OF THE POLICY
MANIFESTED IN THAT AMENDMENT, WHICH WAS ADOPTED TO PREVENT STATE
LEGISLATION DESIGNED TO PERPETUATE DISCRIMINATION ON THE BASIS OF RACE
OR COLOR.  WE SEE NO CONSTITUTIONAL BASIS FOR THE CONTENTION THAT A
STATE CANNOT PROTECT WORKERS FROM EXCLUSION SOLELY ON THE BASIS OF
RACE, COLOR OR CREED BY AN ORGANIZATION, FUNCTIONING UNDER THE
PROTECTION OF THE STATE, WHICH HOLDS ITSELF OUT TO REPRESENT THE
GENERAL BUSINESS NEEDS OF EMPLOYEES.  FN12 

TO DENY A FELLOW-EMPLOYEE MEMBERSHIP BECAUSE OF RACE, COLOR OR CREED
MAY OPERATE TO PREVENT THAT EMPLOYEE FROM HAVING ANY PART IN THE
DETERMINATION OF LABOR POLICIES TO BE PROMOTED AND ADOPTED IN THE
INDUSTRY AND DEPRIVE HIM OF ALL MEANS OF PROTECTION FROM UNFAIR
TREATMENT ARISING OUT OF THE FACT THAT THE TERMS IMPOSED BY A DOMINANT
UNION APPLY TO ALL EMPLOYEES, WHETHER UNION MEMBERS OR NOT.  IN THEIR
VERY NATURE, RACIAL AND RELIGIOUS MINORITIES ARE LIKELY TO BE SO SMALL
IN NUMBER IN ANY PARTICULAR INDUSTRY AS TO BE UNABLE TO FORM AN
EFFECTIVE ORGANIZATION FOR SECURING SETTLEMENT OF THEIR GRIEVANCES AND
CONSIDERATION OF THEIR GROUP AIMS WITH RESPECT TO CONDITIONS OF
EMPLOYMENT.  THE FACT THAT THE EMPLOYER IS THE GOVERNMENT HAS NO
SIGNIFICANCE FROM THIS POINT OF VIEW.  FN13 

APPELLANT'S SECOND GROUND FOR ATTACK ON THE VALIDITY OF SEC. 43, AND
RELATED PROVISIONS, IS THAT EQUAL PROTECTION OF THE LAWS IS DENIED TO
IT BY THE SECTION.  APPELLANT RESTS ITS ARGUMENT ON THE FACT THAT
ARTICLE 20 OF THE NEW YORK LABOR LAW,  FN14  CONFERRING CERTAIN RIGHTS
ON EMPLOYEES AND LABOR ORGANIZATIONS WITH RESPECT TO ORGANIZATION AND
COLLECTIVE BARGAINING, EXCLUDES FROM THE OPERATIONS OF ITS PROVISIONS
LABOR ORGANIZATIONS, SUCH AS THE APPELLANT, WHOSE MEMBERS ARE
"EMPLOYEES OF THE STATE,"  FN15  WHILE SEC. 43 INCLUDES THE APPELLANT
IN THE DEFINITION OF "LABOR ORGANIZATIONS" SUBJECT TO ITS PROVISIONS. 
FN16  APPELLANT THUS CONTENDS THAT THE STATE COULD NOT CLASSIFY
APPELLANT SO AS TO BE SUBJECT TO SEC. 43 AND DENY IT THE BENEFITS OF
THE PROVISIONS OF ARTICLE 20; THAT THE STATE'S FAILURE TO EXTEND
ARTICLE 20 TO INCLUDE THE APPELLANT DENIES IT EQUAL PROTECTION.  A
STATE DOES NOT DENY EQUAL PROTECTION BECAUSE IT REGULATES THE
MEMBERSHIP OF APPELLANT BUT FAILS TO EXTEND TO ORGANIZATIONS OF
GOVERNMENT EMPLOYEES PROVISIONS RELATING TO COLLECTIVE BARGAINING. 
UNDER CUSTOMARY PRACTICES GOVERNMENT EMPLOYEES DO NOT BARGAIN
COLLECTIVELY WITH THEIR EMPLOYER.  THE STATE MAY WELL HAVE THOUGHT THAT
THE PROBLEMS ARISING IN CONNECTION WITH PRIVATE EMPLOYER-EMPLOYEE
RELATIONSHIP MADE COLLECTIVE BARGAINING LEGISLATION MORE URGENT AND
COMPELLING THAN FOR GOVERNMENT EMPLOYEES.  CF. LABOR BOARD V. JONES &
LAUGHLIN CORP., 301 U.S. 1, 46. 

THERE REMAINS TO BE CONSIDERED THE APPELLANT'S THIRD CONTENTION:
THAT SEC. 43, AND RELATED PROVISIONS, ARE REPUGNANT TO ARTICLE I, SEC.
8, CLAUSE 7, OF THE FEDERAL CONSTITUTION, WHICH CONFERS ON CONGRESS THE
AUTHORITY OVER POSTAL MATTERS; THAT SEC. 43 CONSTITUTES AN INVASION OF
THIS FIELD OVER WHICH CONGRESS HAS EXCLUSIVE JURISDICTION AND
CONSTITUTES AN ATTEMPT TO REGULATE A FEDERAL INSTRUMENTALITY. 
GOVERNMENT IMMUNITY FROM STATE TAX AND REGULATORY PROVISIONS DOES NOT
EXTEND BEYOND THE FEDERAL GOVERNMENT ITSELF AND ITS GOVERNMENTAL
FUNCTIONS.  IN THE REGULATION OF ITS INTERNAL AFFAIRS, THE STATE
INEVITABLY IMPOSES SOME BURDENS ON THOSE DEALING WITH THE NATIONAL
GOVERNMENT OF THE SAME KINDS AS THOSE IMPOSED ON OTHERS.  PENN DAIRIES
V. MILK CONTROL COMMISSION, 318 U.S. 261, 270.  SECTION 43 DOES NOT
IMPINGE ON THE FEDERAL MAIL SERVICE OR THE POWER OF THE GOVERNMENT TO
CONDUCT IT.  IT DOES NOT BURDEN THE GOVERNMENT IN ITS SELECTION OF ITS
EMPLOYEES OR IN ITS RELATIONS WITH THEM.  NOR DOES IT OPERATE TO DEFINE
THE TERMS OF THAT FEDERAL EMPLOYMENT OR RELATE TO ANY ASPECT OF IT.
ORGANIZATION DERIVING NO FINANCIAL OR OTHER STATUTORY SUPPORT OR
RECOGNITION FROM THE FEDERAL GOVERNMENT AND WHICH IN NO WAY ACTS AS AN
INSTRUMENTALITY OF THE FEDERAL GOVERNMENT IN PERFORMANCE OF ITS POSTAL
FUNCTIONS.  THE OPERATION OF THE MAILS IS NO MORE AFFECTED BY THIS
STATUTE THAN BY A STATE LAW REQUIRING ANNUAL MEETINGS, OR THE ELECTION
OF OFFICERS BY SECRET BALLOT, OR BY A STATE INSURANCE REGULATION
APPLICABLE TO APPELLANT'S FRATERNAL BENEFIT ACTIVITIES.  THE DECIDED
CASES WHICH INDICATE THE LIMITS OF STATE REGULATORY POWER IN RELATION
TO THE FEDERAL MAIL SERVICE INVOLVE SITUATIONS WHERE STATE REGULATION
INVOLVED A DIRECT, PHYSICAL INTERFERENCE WITH FEDERAL ACTIVITIES UNDER
THE POSTAL POWER OR SOME DIRECT, IMMEDIATE BURDEN ON THE PERFORMANCE OF
THE POSTAL FUNCTIONS.  JOHNSON V. MARYLAND, 254 U.S. 51, 57; PRICE V.
PENNSYLVANIA R. CO., 113 U.S. 218, 222; MARTIN V. PITTSBURG & LAKE ERIE
R. CO., 203 U.S. 284, 292-93.  SEE EX PARTE JACKSON, 96 U.S. 727, 732;
IN RE RAPIER, 143 U.S. 110, 133.  AND IN AT LEAST ONE INSTANCE THIS
COURT HAS SUSTAINED DIRECT STATE INTERFERENCE WITH TRANSMISSION OF THE
MAILS WHERE THE SLIGHT PUBLIC INCONVENIENCE ARISING THEREFROM WAS FELT
TO BE FAR OUTWEIGHED BY INCONVENIENCE TO A STATE IN THE ENFORCEMENT OF
ITS LAWS WHICH WOULD HAVE RESULTED FROM A CONTRARY HOLDING.  UNITED
STATES V. KIRBY, 7 WALL.  482, 486. 

APPELLANT ALSO ARGUES THAT THE VARIOUS FEDERAL STATUTES REGULATING
THE TERMS AND CONDITIONS OF EMPLOYMENT OF RAILWAY MAIL CLERKS INDICATE
AN INTENT ON THE PART OF CONGRESS TO COMPLETELY OCCUPY THE FIELD OF
REGULATION APPLICABLE TO FEDERAL POSTAL EMPLOYEES AND THEIR LABOR
ORGANIZATIONS N17.  ESPECIAL RELIANCE IS PLACED ON SEC. 652, TITLE 5,
U.S.C., 37 STAT. 555, WHICH PROVIDES THAT "MEMBERSHIP IN ANY  ...
ORGANIZATION OF POSTAL EMPLOYEES NOT AFFILIATED WITH ANY OUTSIDE
ORGANIZATION IMPOSING AN OBLIGATION OR DUTY UPON THEM TO ENGAGE IN ANY
STRIKE, OR PROPOSING TO ASSIST THEM IN ANY STRIKE, AGAINST THE UNITED
STATES, HAVING FOR ITS OBJECTS, AMONG OTHER THINGS, IMPROVEMENTS IN THE
CONDITION OF LABOR OF ITS MEMBERS, INCLUDING HOURS OF LABOR AND
COMPENSATION THEREFOR AND LEAVE OF ABSENCE  ...  OR THE PRESENTING BY
ANY SUCH PERSON OR GROUPS OF PERSONS OF ANY GRIEVANCE OR GRIEVANCES TO
THE CONGRESS  ...  SHALL NOT CONSTITUTE OR BE CAUSE FOR REDUCTION IN
RANK OR COMPENSATION OR REMOVAL  ...  FROM SAID SERVICE."  THE LANGUAGE
OF THIS PROVISION INDICATES THAT IT HAD THE NARROW PURPOSE OF
PROHIBITING DISCRIMINATION AGAINST A FEDERAL EMPLOYEE BECAUSE OF
MEMBERSHIP IN AN ORGANIZATION OF EMPLOYEES WHICH DID NOT IMPOSE AN
OBLIGATION TO STRIKE AGAINST THE GOVERNMENT.  THIS PROVISION CAN HARDLY
BE DEEMED TO INDICATE AN INTENT ON THE PART OF CONGRESS TO ENTER AND
COMPLETELY ABSORB THE FIELD OF REGULATION OF ORGANIZATIONS OF FEDERAL
EMPLOYEES.  CONGRESS MUST CLEARLY MANIFEST AN INTENTION TO REGULATE FOR
ITSELF ACTIVITIES OF ITS EMPLOYEES, WHICH ARE APART FROM THEIR
GOVERNMENTAL DUTIES, BEFORE THE POLICE POWER OF THE STATE IS
POWERLESS.  ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740, 749,
AND CASES CITED.  THERE IS NO SUCH CLEAR MANIFESTATION OF CONGRESSIONAL
INTENT TO EXCLUDE IN THIS CASE.  NOR ARE WE CALLED UPON TO CONSIDER
WHETHER CONGRESS, IN THE EXERCISE OF ITS POWER OVER THE POST OFFICES
AND POST ROADS, COULD REGULATE THE APPELLANT ORGANIZATION.  SUFFICE IT
TO SAY, THAT WE DO NOT FIND IT TO HAVE EXERCISED SUCH POWER SO FAR AND
THUS REGULATION BY THE STATES IS NOT PRECLUDED.    THE JUDGMENT IS
AFFIRMED. 

FN1  SECTION 43 OF THE NEW YORK CIVIL RIGHTS LAW, N.Y. CONSOL.  LAWS,
CH. 6, PROVIDES: 

"AS USED IN THIS SECTION, THE TERM 'LABOR ORGANIZATION' MEANS ANY
ORGANIZATION WHICH EXISTS AND IS CONSTITUTED FOR THE PURPOSE, IN WHOLE
OR IN PART, OF COLLECTIVE BARGAINING, OR OF DEALING WITH EMPLOYERS
CONCERNING GRIEVANCES, TERMS OR CONDITIONS OF EMPLOYMENT, OR OF OTHER
MUTUAL AID OR PROTECTION.  NO LABOR ORGANIZATION SHALL HEREAFTER,
DIRECTLY OR INDIRECTLY, BY RITUALISTIC PRACTICE, CONSTITUTIONAL OR BY
LAW PRESCRIPTION, BY TACIT AGREEMENT AMONG ITS MEMBERS, OR OTHERWISE,
DENY A PERSON OR PERSONS MEMBERSHIP IN ITS ORGANIZATION BY REASON OF
HIS RACE, COLOR OR CREED, OR BY REGULATIONS, PRACTICE OR OTHERWISE,
DENY TO ANY OF ITS MEMBERS, BY REASON OF RACE, COLOR OR CREED, EQUAL
TREATMENT WITH ALL OTHER MEMBERS IN ANY DESIGNATION OF MEMBERS TO ANY
EMPLOYER FOR EMPLOYMENT, PROMOTION OR DISMISSAL BY SUCH EMPLOYER." 

SEC. 43, PROVIDES: 

"...  ANY OFFICER OR MEMBER OF A LABOR ORGANIZATION, AS DEFINED BY
ORGANIZATION OR ACTING IN ITS BEHALF WHO SHALL VIOLATE ANY OF THE
PROVISIONS OF SECTION FORTY-THREE OF THIS CHAPTER OR WHO SHALL AID OR
INCITE THE VIOLATION OF ANY OF THE PROVISIONS OF SUCH SECTION SHALL FOR
EACH AND EVERY VIOLATION THEREOF BE LIABLE TO A PENALTY OF NOT LESS
THAN ONE HUNDRED DOLLARS NOR MORE THAN FIVE HUNDRED DOLLARS, TO BE
RECOVERED BY THE PERSON AGGRIEVED THEREBY  ...  AND SUCH OFFICER OR
MEMBER OF A LABOR ORGANIZATION OR PERSON ACTING IN HIS BEHALF, AS THE
CASE MAY BE SHALL, ALSO, FOR EVERY SUCH OFFENSE BE DEEMED GUILTY OF A
MISDEMEANOR, AND UPON CONVICTION THEREOF SHALL BE FINED NOT LESS THAN
ONE HUNDRED DOLLARS NOR MORE THAN FIVE HUNDRED DOLLARS, OR SHALL BE
IMPRISONED NOT LESS THAN THIRTY DAYS NOR MORE THAN NINETY DAYS, OR BOTH
SUCH FINE AND IMPRISONMENT." 


"THE INDUSTRIAL COMMISSIONER MAY ENFORCE THE PROVISIONS OF SECTIONS
...  FORTY-THREE  ...  OF THIS CHAPTER.  FOR THIS PURPOSE HE MAY USE
THE POWERS OF ADMINISTRATION, INVESTIGATION, INQUIRY, SUBPOENA, AND
HEARING VESTED IN HIM BY THE LABOR LAW; HE MAY REQUIRE SUBMISSION AT
REGULAR INTERVALS OR OTHERWISE OF INFORMATION, RECORDS AND REPORTS
PERTINENT TO DISCRIMINATORY PRACTICES IN INDUSTRIES." 

FN2  RAILWAY MAIL ASSOCIATION V. CORSI, 293 N.Y. 315, 56 N.E.2D 721. 

FN3  CONSTITUTION, RAILWAY MAIL ASSOCIATION, 1941-43, ARTICLE III,
PROVIDES: 

"ANY REGULAR MALE RAILWAY POSTAL CLERK OR MALE SUBSTITUTE RAILWAY
POSTAL CLERK OF THE UNITED STATES RAILWAY MAIL SERVICE, WHO IS OF THE
CAUCASIAN RACE, OR A NATIVE AMERICAN INDIAN, SHALL BE ELIGIBLE TO
MEMBERSHIP IN THE RAILWAY MAIL ASSOCIATION." 

FN4  RAILWAY MAIL ASSOCIATION V. MURPHY, 180 MISC. 868, 44 N.Y.S.2D
601. 

FN5  RAILWAY MAIL ASSOCIATION V. CORSI, 267 APP. DIV. 470, 47
N.Y.S.2D 404. 

FN6  CONSTITUTION, RAILWAY MAIL ASSOCIATION, 1941-43, ARTICLE II,
PROVIDES: 

"THE OBJECT OF THIS ASSOCIATION IS TO CONDUCT THE BUSINESS OF A
FRATERNAL BENEFICIARY ASSOCIATION FOR THE SOLE BENEFIT OF ITS MEMBERS
AND BENEFICIARIES, AND NOT FOR PROFIT; TO PROVIDE CLOSER SOCIAL
RELATIONS AMONG RAILWAY POSTAL CLERKS, TO ENABLE THEM TO PERFECT ANY
MOVEMENT THAT MAY BE FOR THEIR BENEFIT AS A CLASS OR FOR THE BENEFIT OF
THE RAILWAY MAIL SERVICE AND MAKE PROVISION FOR THE PAYMENT OF BENEFITS
TO ITS MEMBERS AND THEIR BENEFICIARIES IN CASE OF DEATH, TEMPORARY OR
PERMANENT PHYSICAL DISABILITY AS A RESULT OF ACCIDENTAL MEANS." 

FN7  THE INDUSTRIAL SECRETARY ALSO HAS A DUTY UNDER APPELLANT'S
CONSTITUTION, ARTICLE VII, SEC. 3(4), TO REPRESENT MEMBERS BEFORE THE
UNITED STATES EMPLOYEES' COMPENSATION COMMISSION. 

FN8  IBID., ARTICLE VII, SEC. 3(3). 

FN9  RAILWAY MAIL ASSOCIATION V. CORSI, 293 N.Y. 315, 320. 

FN10  ONE OF THE APPELLANT'S BRANCH ASSOCIATIONS ATTEMPTED TO ADMIT
INTO ITS MEMBERSHIP PERSONS NOT OF THE CAUCASIAN RACE.  APPELLANT
DENIED SUCH APPLICANT'S MEMBERSHIP, WHEREUPON STATE OFFICIALS CHARGED
WITH THE ENFORCEMENT OF SEC. 43, ON COMPLAINT BY CERTAIN INTERESTED
PARTIES, ASSERTED THE APPLICABILITY OF THAT LAW TO APPELLANT, THE
INVALIDITY OF ARTICLE III OF APPELLANT'S CONSTITUTION AND PREPARED TO
INVOKE SUBSTANTIAL STATUTORY PENALTIES FOR FAILURE TO COMPLY WITH SEC.
43.  APPELLANT ASSERTS THE INVALIDITY OF THE STATUTE AND IS FACED WITH
EITHER VIOLATING ITS OWN CONSTITUTION OR A STATE STATUTE. 

FN11  SEE NOTE 1, SUPRA. 

FN12  SEE STEELE V. LOUISVILLE & N.R. CO., 323 U.S. 192; TUNSTALL V.
BROTHERHOOD OF LOCOMOTIVE FIREMEN, 323 U.S. 210; THOMAS V. COLLINS, 323
U.S. 516, 532. 

FN13  SEE 5 U.S.C. SEC. 652, 37 STAT. 555, DISCUSSED INFRA, PP. 96
97. 

FN14  NEW YORK STATE LABOR RELATIONS ACT.  N.Y. CONSOL.  LAWS, CH.
31, ART. 20, SECS. 700-716.  THIS STATUTE CREATES A STATE LABOR
RELATIONS BOARD AND CONTAINS PROVISIONS IN AID OF EMPLOYEE'S RIGHTS TO
ORGANIZE AND BARGAIN COLLECTIVELY WITH THEIR EMPLOYERS. 

FN15  N.Y. CONSOL.  LAWS, CH. 31, SEC. 715. 

FN16  SEE NOTE 1, SUPRA. 

FN17  39 U.S.C. SECS. 601-640. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE RAILWAY MAIL ASSOCIATION IS A UNION OF RAILWAY CLERKS.  TO
OPERATE AS A UNION IN NEW YORK IT MUST OBEY THE NEW YORK CIVIL RIGHTS
LAW.  THAT LAW PROHIBITS SUCH AN ORGANIZATION FROM DENYING MEMBERSHIP
IN THE UNION BY REASON OF RACE, COLOR OR CREED, WITH ALL THE ECONOMIC
CONSEQUENCES THAT SUCH DENIAL ENTAILS. 

APART FROM OTHER OBJECTIONS, WHICH ARE TOO UNSUBSTANTIAL TO REQUIRE
CONSIDERATION, IT IS URGED THAT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT PRECLUDES THE STATE OF NEW YORK FROM PROHIBITING
RACIAL AND RELIGIOUS DISCRIMINATION AGAINST THOSE SEEKING EMPLOYMENT. 
ELABORATELY TO ARGUE AGAINST THIS CONTENTION IS TO DIGNIFY A CLAIM
DEVOID OF CONSTITUTIONAL SUBSTANCE.  OF COURSE A STATE MAY LEAVE
ABSTENTION FROM SUCH DISCRIMINATIONS TO THE CONSCIENCE OF INDIVIDUALS. 
ON THE OTHER HAND, A STATE MAY CHOOSE TO PUT ITS AUTHORITY BEHIND ONE
OF THE CHERISHED AIMS OF AMERICAN FEELING BY FORBIDDING INDULGENCE IN
RACIAL OR RELIGIOUS PREJUDICE TO ANOTHER'S HURT.  TO USE THE FOURTEENTH
AMENDMENT AS A SWORD AGAINST SUCH STATE POWER WOULD STULTIFY THAT
AMENDMENT.  CERTAINLY THE INSISTENCE BY INDIVIDUALS ON THEIR PRIVATE
PREJUDICES AS TO RACE, COLOR OR CREED, IN RELATIONS LIKE THOSE NOW
BEFORE US, OUGHT NOT TO HAVE A HIGHER CONSTITUTIONAL SANCTION THAN THE
DETERMINATION OF A STATE TO EXTEND THE AREA OF NONDISCRIMINATION BEYOND
THAT WHICH THE CONSTITUTION ITSELF EXACTS. 
..END :













GUARANTY TRUST CO. V. YORK, 326 U.S. 99 


NO. 264.  ARGUED JANUARY 3, 4, 1945.  - DECIDED JUNE 18, 1945.  - 143
F.2D 503, REVERSED. 


IN A SUIT IN EQUITY IN A FEDERAL COURT TO RECOVER UPON A STATE-CREATED
RIGHT, JURISDICTION BEING BASED SOLELY UPON DIVERSITY OF CITIZENSHIP OF
THE PARTIES, A RECOVERY CAN NOT BE HAD IF A STATE STATUTE OF
LIMITATIONS WOULD HAVE BARRED RECOVERY HAD THE SUIT BEEN BROUGHT IN A
COURT OF THE STATE.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64, FOLLOWED. 
P. 108. 

GUARANTY TRUST CO. V. YORK. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 693, TO REVIEW THE REVERSAL OF A SUMMARY
JUDGMENT FOR THE DEFENDANT (PETITIONER HERE) IN A SUIT OF WHICH THE
FEDERAL COURT HAD JURISDICTION SOLELY BECAUSE OF DIVERSITY OF
CITIZENSHIP OF THE PARTIES. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN RUSSELL V. TODD, 309 U.S. 280, 294, WE HAD "NO OCCASION TO
CONSIDER THE EXTENT TO WHICH FEDERAL COURTS, IN THE EXERCISE OF THE
AUTHORITY CONFERRED UPON THEM BY CONGRESS TO ADMINISTER EQUITABLE
REMEDIES, ARE BOUND TO FOLLOW STATE STATUTES AND DECISIONS AFFECTING
THOSE REMEDIES."  THE QUESTION THUS CAREFULLY LEFT OPEN IN RUSSELL V.
TODD IS NOW BEFORE US.  IT ARISES UNDER THE FOLLOWING CIRCUMSTANCES. 

IN MAY, 1930, VAN SWERINGEN CORPORATION ISSUED NOTES TO THE AMOUNT OF
$30,000,000.  UNDER AN INDENTURE OF THE SAME DATE, PETITIONER, GUARANTY
TRUST CO., WAS NAMED TRUSTEE WITH POWER AND OBLIGATIONS TO ENFORCE THE
RIGHTS OF THE NOTEHOLDERS IN THE ASSETS OF THE CORPORATION AND OF THE
VAN SWERINGEN BROTHERS.  IN OCTOBER, 1930, PETITIONER, WITH OTHER
BANKS, MADE LARGE ADVANCES TO COMPANIES AFFILIATED WITH THE CORPORATION
AND WHOLLY CONTROLLED BY THE VAN SWERINGENS.  IN OCTOBER, 1931, WHEN IT
WAS APPARENT THAT THE CORPORATION COULD NOT MEET ITS OBLIGATIONS,
GUARANTY COOPERATED IN A PLAN FOR THE PURCHASE OF THE OUTSTANDING NOTES
ON THE BASIS OF CASH FOR 50% OF THE FACE VALUE OF THE NOTES AND TWENTY
SHARES OF VAN SWERINGEN CORPORATION'S STOCK FOR EACH $1,000 NOTE.  THIS
EXCHANGE OFFER REMAINED OPEN UNTIL DECEMBER 15, 1931. 

RESPONDENT YORK RECEIVED $6,000 OF THE NOTES AS A GIFT IN 1934, HER
DONOR NOT HAVING ACCEPTED THE OFFER OF EXCHANGE.  IN APRIL, 1940, THREE
ACCEPTING NOTEHOLDERS BEGAN SUIT AGAINST PETITIONER, CHARGING FRAUD AND
MISREPRESENTATION.  RESPONDENT'S APPLICATION TO INTERVENE IN THAT SUIT
WAS DENIED, 117 F.2D 95, AND SUMMARY JUDGMENT IN FAVOR OF GUARANTY WAS
AFFIRMED.  HACKNER V. MORGAN, 130 F.2D 300.  AFTER HER DISMISSAL FROM
THE HACKNER LITIGATION, RESPONDENT, ON JANUARY 22, 1942, BEGAN THE
PRESENT PROCEEDINGS. 

THE SUIT, INSTITUTED AS A CLASS ACTION ON BEHALF OF NONACCEPTING
NOTEHOLDERS AND BROUGHT IN A FEDERAL COURT SOLELY BECAUSE OF DIVERSITY
OF CITIZENSHIP, IS BASED ON AN ALLEGED BREACH OF TRUST BY GUARANTY IN
THAT IT FAILED TO PROTECT THE INTERESTS OF THE NOTEHOLDERS IN ASSENTING
TO THE EXCHANGE OFFER AND FAILED TO DISCLOSE ITS SELF-INTEREST WHEN
SPONSORING THE OFFER.  PETITIONER MOVED FOR SUMMARY JUDGMENT, WHICH WAS
GRANTED, UPON THE AUTHORITY OF THE HACKNER CASE.  ON APPEAL, THE
CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING, FOUND THAT THE HACKNER
DECISION DID NOT FORECLOSE THIS SUIT, AND HELD THAT IN A SUIT BROUGHT
ON THE EQUITY SIDE OF A FEDERAL DISTRICT COURT THAT COURT IS NOT
REQUIRED TO APPLY THE STATE STATUTE OF LIMITATIONS THAT WOULD GOVERN
LIKE SUITS IN THE COURTS OF A STATE WHERE THE FEDERAL COURT IS SITTING
EVEN THOUGH THE EXCLUSIVE BASIS OF FEDERAL JURISDICTION IS DIVERSITY OF
CITIZENSHIP.  143 F.2D 503.  THE IMPORTANCE OF THE QUESTION FOR THE
DISPOSITION OF LITIGATION IN THE FEDERAL COURTS LED US TO BRING THE
CASE HERE.  323 U.S. 693. 

IN VIEW OF THE BASIS OF THE DECISION BELOW, IT IS NOT FOR US TO
CONSIDER WHETHER THE NEW YORK STATUTE WOULD ACTUALLY BAR THIS SUIT WERE
IT BROUGHT IN A STATE COURT.  OUR ONLY CONCERN IS WITH THE HOLDING THAT
THE FEDERAL COURTS IN A SUIT LIKE THIS ARE NOT BOUND BY LOCAL LAW. 

WE PUT TO ONE SIDE THE CONSIDERATIONS RELEVANT IN DISPOSING OF
QUESTIONS THAT ARISE WHEN A FEDERAL COURT IS ADJUDICATING A CLAIM BASED
ON A FEDERAL LAW.  SEE, FOR INSTANCE, BOARD OF COMM'RS V. UNITED
STATES, 308 U.S. 343; DEITRICK V. GREANEY, 309 U.S. 190; D'OENCH, DUHME
& CO. V. F.D.I.C., 315 U.S. 447; CLEARFIELD TRUST CO. V. UNITED STATES,
318 U.S. 363; O'BRIEN V. WESTERN UNION TELEGRAPH CO., 113 F.2D 539. 
OUR PROBLEM ONLY TOUCHES TRANSACTIONS FOR WHICH RIGHTS AND OBLIGATIONS
ARE CREATED BY ONE OF THE STATES, AND FOR THE ASSERTION OF WHICH, IN
CASE OF DIVERSITY OF THE CITIZENSHIP OF THE PARTIES, CONGRESS HAS MADE
A FEDERAL COURT ANOTHER AVAILABLE FORUM. 

OUR STARTING POINT MUST BE THE POLICY OF FEDERAL JURISDICTION WHICH
ERIE R. CO. V. TOMPKINS, 304 U.S. 64, EMBODIES.  IN OVERRULING SWIFT V.
TYSON, 16 PET. 1, ERIE R. CO. V. TOMPKINS DID NOT MERELY OVERRULE A
VENERABLE CASE.  IT OVERRULED A PARTICULAR WAY OF LOOKING AT LAW WHICH
DOMINATED THE JUDICIAL PROCESS LONG AFTER ITS INADEQUACIES HAD BEEN
LAID BARE.  SEE, E.G., FIELD, J., DISSENTING IN BALTIMORE & OHIO R. CO.
V. BAUGH, 149 U.S. 368, 391; HOLMES, J., DISSENTING IN KUHN V. FAIRMONT
COAL CO., 215 U.S. 349, 370, AND IN BLACK & WHITE TAXI.  CO. V. BROWN &
YELLOW TAXI.  CO., 276 U.S. 518, 532; ERIE R. CO. V. TOMPKINS, SUPRA AT
73, NOTE 6.  LAW WAS CONCEIVED AS A "BROODING OMNIPRESENCE" OF REASON,
OF WHICH DECISIONS WERE MERELY EVIDENCE AND NOT THEMSELVES THE
CONTROLLING FORMULATIONS.  ACCORDINGLY, FEDERAL COURTS DEEMED
THEMSELVES FREE TO ASCERTAIN WHAT REASON, AND THEREFORE LAW, REQUIRED
WHOLLY INDEPENDENT OF AUTHORITATIVELY DECLARED STATE LAW, EVEN IN CASES
WHERE A LEGAL RIGHT AS THE BASIS FOR RELIEF WAS CREATED BY STATE
AUTHORITY AND COULD NOT BE CREATED BY FEDERAL AUTHORITY AND THE CASE
GOT INTO A FEDERAL COURT MERELY BECAUSE IT WAS "BETWEEN CITIZENS OF
DIFFERENT STATES" UNDER ART. III, SEC. 2 OF THE CONSTITUTION OF THE
UNITED STATES. 

THIS IMPULSE TO FREEDOM FROM THE RULES THAT CONTROLLED STATE COURTS
REGARDING STATE-CREATED RIGHTS WAS SO STRONGLY ROOTED IN THE PREVAILING
VIEWS CONCERNING THE NATURE OF LAW, THAT THE FEDERAL COURTS ALMOST
IMPERCEPTIBLY WERE LED TO MUTILATING CONSTRUCTION EVEN OF THE EXPLICIT
COMMAND GIVEN TO THEM BY CONGRESS TO APPLY STATE LAW IN CASES
PURPORTING TO ENFORCE THE LAW OF A STATE.  SEE SEC. 34 OF THE JUDICIARY
ACT OF 1789, 1 STAT. 73, 92.  THE MATTER WAS FAIRLY SUMMARIZED BY THE
STATEMENT THAT "DURING THE PERIOD WHEN SWIFT V. TYSON (1842-1938) RULED
THE DECISIONS OF THE FEDERAL COURTS, ITS THEORY OF THEIR FREEDOM IN
MATTERS OF GENERAL LAW FROM THE AUTHORITY OF STATE COURTS PERVADED
OPINIONS OF THIS COURT INVOLVING EVEN STATE STATUTES OR LOCAL LAW." 
VANDENBARK V. OWENS-ILLINOIS CO., 311 U.S. 538, 540. 

IN RELATION TO THE PROBLEM NOW HERE, THE REAL SIGNIFICANCE OF SWIFT
V. TYSON LIES IN THE FACT THAT IT DID NOT ENUNCIATE NOVEL DOCTRINE. 
NOR WAS IT RESTRICTED TO ITS PARTICULAR SITUATION.  IT SUMMED UP PRIOR
ATTITUDES AND EXPRESSIONS IN CASES THAT HAD COME BEFORE THIS COURT AND
LOWER FEDERAL COURTS FOR AT LEAST THIRTY YEARS, AT LAW AS WELL AS IN
EQUITY.  FN1  THE SHORT OF IT IS THAT THE DOCTRINE WAS CONGENIAL TO THE
JURISPRUDENTIAL CLIMATE OF THE TIME.  ONCE ESTABLISHED, JUDICIAL
MOMENTUM KEPT IT GOING.  SINCE IT WAS CONCEIVED THAT THERE WAS "A
TRANSCENDENTAL BODY OF LAW OUTSIDE OF ANY PARTICULAR STATE BUT
OBLIGATORY WITHIN IT UNLESS AND UNTIL CHANGED BY STATUTE," 276 U.S.
518, 532, 533, STATE COURT DECISIONS WERE NOT "THE LAW" BUT MERELY
SOMEONE'S OPINION - TO BE SURE AN OPINION TO BE RESPECTED - CONCERNING
THE CONTENT OF THIS ALL-PERVADING LAW.  NOT UNNATURALLY, THE FEDERAL
COURTS ASSUMED POWER TO FIND FOR THEMSELVES THE CONTENT OF SUCH A BODY
OF LAW.  THE NOTION WAS STIMULATED BY THE ATTRACTIVE VISION OF A
UNIFORM BODY OF FEDERAL LAW.  TO SUCH SENTIMENTS FOR UNIFORMITY OF
DECISION AND FREEDOM FROM DIVERSITY IN STATE LAW THE FEDERAL COURTS
GAVE CURRENCY, PARTICULARLY IN CASES WHERE EQUITABLE REMEDIES WERE
SOUGHT, BECAUSE EQUITABLE DOCTRINES ARE SO OFTEN CAST IN TERMS OF
UNIVERSAL APPLICABILITY WHEN CLOSE ANALYSIS OF THE SOURCE OF LEGAL
ENFORCEABILITY IS NOT DEMANDED. 

IN EXERCISING THEIR JURISDICTION ON THE GROUND OF DIVERSITY OF
CITIZENSHIP, THE FEDERAL COURTS, IN THE LONG COURSE OF THEIR HISTORY,
HAVE NOT DIFFERENTIATED IN THEIR REGARD FOR STATE LAW BETWEEN ACTIONS
AT LAW AND SUITS IN EQUITY.  ALTHOUGH SEC. 34 OF THE JUDICIARY ACT OF
1789, 1 STAT. 73, 92, 28 U.S.C. SEC. 725, DIRECTED THAT THE "LAWS OF
THE SEVERAL STATES  ...  SHALL BE REGARDED AS RULES OF DECISION IN
TRIALS AT COMMON LAW  ...," THIS WAS DEEMED, CONSISTENTLY FOR OVER A
HUNDRED YEARS, TO BE MERELY DECLARATORY OF WHAT WOULD IN ANY EVENT HAVE
GOVERNED THE FEDERAL COURTS AND THEREFORE WAS EQUALLY APPLICABLE TO
EQUITY SUITS.  FN2  SEE HAWKINS V. BARNEY'S LESSEE, 5 PET. 457, 464;
MASON V. UNITED STATES, 260 U.S. 545, 559; ERIE R. CO. V. TOMPKINS,
SUPRA AT 72.  INDEED, IT MAY FAIRLY BE SAID THAT THE FEDERAL COURTS
GAVE GREATER RESPECT TO STATE-CREATED "SUBSTANTIVE RIGHTS," PUSEY &
JONES CO. V. HANSSEN, 261 U.S. 491, 498, IN EQUITY THAN THEY GAVE THEM
ON THE LAW SIDE, BECAUSE RIGHTS AT LAW WERE USUALLY DECLARED BY STATE
COURTS AND AS SUCH INCREASINGLY FLOUTED BY EXTENSION OF THE DOCTRINE OF
SWIFT V. TYSON, WHILE RIGHTS IN EQUITY WERE FREQUENTLY DEFINED BY
LEGISLATIVE ENACTMENT AND AS SUCH KNOWN AND RESPECTED BY THE FEDERAL
COURTS.  SEE, E.G., CLARK V. SMITH, 13 PET. 195; SCOTT V. NEELY, 140
U.S. 106; LOUISVILLE & NASHVILLE R. CO. V. WESTERN UNION CO., 234 U.S.
369, 374-76; PUSEY & JONES CO. V. HANSSEN, SUPRA AT 498. 

PARTLY BECAUSE THE STATES IN THE EARLY DAYS VARIED GREATLY IN THE
MANNER IN WHICH EQUITABLE RELIEF WAS AFFORDED AND IN THE EXTENT TO
WHICH IT WAS AVAILABLE, SEE, E.G., FISHER, THE ADMINISTRATION OF EQUITY
THROUGH COMMON LAW FORMS (1885) 1 L.Q. REV. 455; WOODRUFF, CHANCERY IN
MASSACHUSETTS (1889) 5 L.Q. REV. 370; LAUSSAT, ESSAY ON EQUITY IN
PENNSYLVANIA (1826), CONGRESS PROVIDED THAT "THE FORMS AND MODES OF
PROCEEDING IN SUITS  ... OF EQUITY" WOULD CONFORM TO THE SETTLED USES
OF COURTS OF EQUITY.  SEC. 2, 1 STAT. 275, 276, 28 U.S.C. SEC. 723. 
BUT THIS ENACTMENT GAVE THE FEDERAL COURTS NO POWER THAT THEY WOULD NOT
HAVE HAD IN ANY EVENT WHEN COURTS WERE GIVEN "COGNIZANCE," BY THE FIRST
JUDICIARY ACT, OF SUITS "IN EQUITY."  FROM THE BEGINNING THERE HAS BEEN
A GOOD DEAL OF TALK IN THE CASES THAT FEDERAL EQUITY IS A SEPARATE
LEGAL SYSTEM.  AND SO IT IS, PROPERLY UNDERSTOOD.  THE SUITS IN EQUITY
OF WHICH THE FEDERAL COURTS HAVE HAD "COGNIZANCE" EVER SINCE 1789
CONSTITUTED THE BODY OF LAW WHICH HAD BEEN TRANSPLANTED TO THIS COUNTRY
FROM THE ENGLISH COURT OF CHANCERY.  BUT THIS SYSTEM OF EQUITY "DERIVED
ITS DOCTRINES, AS WELL AS ITS POWERS, FROM ITS MODE OF GIVING RELIEF." 
LANGDELL, SUMMARY OF EQUITY PLEADING (1877) XXVII.  IN GIVING FEDERAL
COURTS "COGNIZANCE" OF EQUITY SUITS IN CASES OF DIVERSITY JURISDICTION,
CONGRESS NEVER GAVE, NOR DID THE FEDERAL COURTS EVER CLAIM, THE POWER
TO DENY SUBSTANTIVE RIGHTS CREATED BY STATE LAW OR TO CREATE
SUBSTANTIVE RIGHTS DENIED BY STATE LAW. 

THIS DOES NOT MEAN THAT WHATEVER EQUITABLE REMEDY IS AVAILABLE IN A
STATE COURT MUST BE AVAILABLE IN A DIVERSITY SUIT IN A FEDERAL COURT,
OR CONVERSELY, THAT A FEDERAL COURT MAY NOT AFFORD AN EQUITABLE REMEDY
NOT AVAILABLE IN A STATE COURT.  EQUITABLE RELIEF IN A FEDERAL COURT IS
OF COURSE SUBJECT TO RESTRICTIONS:  THE SUIT MUST BE WITHIN THE
TRADITIONAL SCOPE OF EQUITY AS HISTORICALLY EVOLVED IN THE ENGLISH
COURT OF CHANCERY, PAYNE V. HOOK, 7 WALL.  425, 430; ATLAS INS. CO. V.
SOUTHERN, INC., 306 U.S. 563, 568; SPRAGUE V. TICONIC BANK, 307 U.S.
161, 164-165; A PLAIN, ADEQUATE AND COMPLETE REMEDY AT LAW MUST BE
WANTING, SEC. 16, 1 STAT. 73, 82, 28 U.S.C. SEC. 384; EXPLICIT
CONGRESSIONAL CURTAILMENT OF EQUITY POWERS MUST BE RESPECTED, SEE,
E.G., NORRIS-LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C. SEC. 101 ET SEQ.;
THE CONSTITUTIONAL RIGHT TO TRIAL BY JURY CANNOT BE EVADED, WHITEHEAD
V. SHATTUCK, 138 U.S. 146.  THAT A STATE MAY AUTHORIZE ITS COURTS TO
GIVE EQUITABLE RELIEF UNHAMPERED BY ANY OR ALL SUCH RESTRICTIONS CANNOT
REMOVE THESE FETTERS FROM THE FEDERAL COURTS.  SEE CLARK V. SMITH,
SUPRA AT 203; BRODERICK'S WILL, 21 WALL.  503, 519-20; LOUISVILLE &
NASHVILLE R. CO. V. WESTERN UNION CO., SUPRA AT 376; HENRIETTA MILLS V.
RUTHERFORD CO., 281 U.S. 121, 127-28; ATLAS INS. CO. V. SOUTHERN, INC.,
SUPRA AT 568-70.  STATE LAW CANNOT DEFINE THE REMEDIES WHICH A FEDERAL
COURT MUST GIVE SIMPLY BECAUSE A FEDERAL COURT IN DIVERSITY
JURISDICTION IS AVAILABLE AS AN ALTERNATIVE TRIBUNAL TO THE STATE'S
COURTS.  FN3  CONTRARIWISE, A FEDERAL COURT MAY AFFORD AN EQUITABLE
REMEDY FOR A SUBSTANTIVE RIGHT RECOGNIZED BY A STATE EVEN THOUGH A
STATE COURT CANNOT GIVE IT.  WHATEVER CONTRADICTION OR CONFUSION MAY BE
PRODUCED BY A MEDLEY OF JUDICIAL PHRASES SEVERED FROM THEIR
ENVIRONMENT, THE BODY OF ADJUDICATIONS CONCERNING EQUITABLE RELIEF IN
DIVERSITY CASES LEAVES NO DOUBT THAT THE FEDERAL COURTS ENFORCED STATE
CREATED SUBSTANTIVE RIGHTS IF THE MODE OF PROCEEDING AND REMEDY WERE
CONSONANT WITH THE TRADITIONAL BODY OF EQUITABLE REMEDIES, PRACTICE AND
PROCEDURE, AND IN SO DOING THEY WERE ENFORCING RIGHTS CREATED BY THE
STATES AND NOT ARISING UNDER ANY INHERENT OR STATUTORY FEDERAL LAW. 
FN4 

INEVITABLY, THEREFORE, THE PRINCIPLE OF ERIE R. CO. V. TOMPKINS, AN
ACTION AT LAW, WAS PROMPTLY APPLIED TO A SUIT IN EQUITY.  RUHLIN V.
N.Y. LIFE INS. CO., 304 U.S. 202. 

AND SO THIS CASE REDUCES ITSELF TO THE NARROW QUESTION WHETHER, WHEN
NO RECOVERY COULD BE HAD IN A STATE COURT BECAUSE THE ACTION IS BARRED
BY THE STATUTE OF LIMITATIONS, A FEDERAL COURT IN EQUITY CAN TAKE
COGNIZANCE OF THE SUIT BECAUSE THERE IS DIVERSITY OF CITIZENSHIP
BETWEEN THE PARTIES.  IS THE OUTLAWRY, ACCORDING TO STATE LAW, OF A
CLAIM CREATED BY THE STATES A MATTER OF "SUBSTANTIVE RIGHTS" TO BE
RESPECTED BY A FEDERAL COURT OF EQUITY WHEN THAT COURT'S JURISDICTION
IS DEPENDENT ON THE FACT THAT THERE IS A STATE-CREATED RIGHT, OR IS
SUCH STATUTE OF "A MERE REMEDIAL CHARACTER," HENRIETTA MILLS V.
RUTHERFORD CO., SUPRA AT 128, WHICH A FEDERAL COURT MAY DISREGARD? 
MATTERS OF "SUBSTANCE" AND MATTERS OF "PROCEDURE" ARE MUCH TALKED ABOUT
IN THE BOOKS AS THOUGH THEY DEFINED A GREAT DIVIDE CUTTING ACROSS THE
WHOLE DOMAIN OF LAW.  BUT, OF COURSE, "SUBSTANCE" AND "PROCEDURE" ARE
THE SAME KEY-WORDS TO VERY DIFFERENT PROBLEMS.  NEITHER "SUBSTANCE" NOR
"PROCEDURE" REPRESENTS THE SAME INVARIANTS.  EACH IMPLIES DIFFERENT
VARIABLES DEPENDING UPON THE PARTICULAR PROBLEM FOR WHICH IT IS USED. 
SEE HOME INS. CO. V. DICK, 281 U.S. 397, 409.  AND THE DIFFERENT
PROBLEMS ARE ONLY DISTANTLY RELATED AT BEST, FOR THE TERMS ARE IN
COMMON USE IN CONNECTION WITH SITUATIONS TURNING ON SUCH DIFFERENT
CONSIDERATIONS AS THOSE THAT ARE RELEVANT TO QUESTIONS PERTAINING TO EX
POST FACTO LEGISLATION, THE IMPAIRMENT OF THE OBLIGATIONS OF CONTRACT,
THE ENFORCEMENT OF FEDERAL RIGHTS IN THE STATE COURTS AND THE
MULTITUDINOUS PHASES OF THE CONFLICT OF LAWS.  SEE, E.G., AMERICAN
RAILWAY EXPRESS CO. V. LEVEE, 263 U.S. 19, 21; DAVIS V. WECHSLER, 263
U.S. 22, 24-25; WORTHEN CO. V. KAVANAUGH, 295 U.S. 56, 60; GARRETT V.
MOORE-MCCORMACK CO., 317 U.S. 239, 248-49; AND SEE TUNKS,
CATEGORIZATION AND FEDERALISM:  "SUBSTANCE" AND "PROCEDURE" AFTER ERIE
RAILROAD V. TOMPKINS (1939) 34 ILL. L. REV. 271, 274-276; COOK, LOGICAL
AND LEGAL BASES OF CONFLICT OF LAWS (1942) 163-165. 

HERE WE ARE DEALING WITH A RIGHT TO RECOVER DERIVED NOT FROM THE
UNITED STATES BUT FROM ONE OF THE STATES.  WHEN, BECAUSE THE PLAINTIFF
HAPPENS TO BE A NON-RESIDENT, SUCH A RIGHT IS ENFORCEABLE IN A FEDERAL
AS WELL AS IN A STATE COURT, THE FORMS AND MODE OF ENFORCING THE RIGHT
MAY AT TIMES, NATURALLY ENOUGH, VARY BECAUSE THE TWO JUDICIAL SYSTEMS
ARE NOT IDENTIC.  BUT SINCE A FEDERAL COURT ADJUDICATING A STATE
CREATED RIGHT SOLELY BECAUSE OF THE DIVERSITY OF CITIZENSHIP OF THE
PARTIES IS FOR THAT PURPOSE, IN EFFECT, ONLY ANOTHER COURT OF THE
STATE, IT CANNOT AFFORD RECOVERY IF THE RIGHT TO RECOVER IS MADE
UNAVAILABLE BY THE STATE NOR CAN IT SUBSTANTIALLY AFFECT THE
ENFORCEMENT OF THE RIGHT AS GIVEN BY THE STATE. 

AND SO THE QUESTION IS NOT WHETHER A STATUTE OF LIMITATIONS IS DEEMED
A MATTER OF "PROCEDURE" IN SOME SENSE.  THE QUESTION IS WHETHER SUCH A
STATUTE CONCERNS MERELY THE MANNER AND THE MEANS BY WHICH A RIGHT TO
RECOVER, AS RECOGNIZED BY THE STATE, IS ENFORCED, OR WHETHER SUCH
STATUTORY LIMITATION IS A MATTER OF SUBSTANCE IN THE ASPECT THAT ALONE
IS RELEVANT TO OUR PROBLEM, NAMELY, DOES IT SIGNIFICANTLY AFFECT THE
RESULT OF A LITIGATION FOR A FEDERAL COURT TO DISREGARD A LAW OF A
STATE THAT WOULD BE CONTROLLING IN AN ACTION UPON THE SAME CLAIM BY THE
SAME PARTIES IN A STATE COURT? 

IT IS THEREFORE IMMATERIAL WHETHER STATUTES OF LIMITATION ARE
CHARACTERIZED EITHER AS "SUBSTANTIVE" OR "PROCEDURAL" IN STATE COURT
OPINIONS IN ANY USE OF THOSE TERMS UNRELATED TO THE SPECIFIC ISSUE
BEFORE US.  ERIE R. CO. V. TOMPKINS WAS NOT AN ENDEAVOR TO FORMULATE
SCIENTIFIC LEGAL TERMINOLOGY.  IT EXPRESSED A POLICY THAT TOUCHES
VITALLY THE PROPER DISTRIBUTION OF JUDICIAL POWER BETWEEN STATE AND
FEDERAL COURTS.  IN ESSENCE, THE INTENT OF THAT DECISION WAS TO INSURE
THAT, IN ALL CASES WHERE A FEDERAL COURT IS EXERCISING JURISDICTION
SOLELY BECAUSE OF THE DIVERSITY OF CITIZENSHIP OF THE PARTIES, THE
OUTCOME OF THE LITIGATION IN THE FEDERAL COURT SHOULD BE SUBSTANTIALLY
THE SAME, SO FAR AS LEGAL RULES DETERMINE THE OUTCOME OF A LITIGATION,
AS IT WOULD BE IF TRIED IN A STATE COURT.  THE NUB OF THE POLICY THAT
UNDERLIES ERIE R. CO. V. TOMPKINS IS THAT FOR THE SAME TRANSACTION THE
ACCIDENT OF A SUIT BY A NON-RESIDENT LITIGANT IN A FEDERAL COURT
INSTEAD OF IN A STATE COURT A BLOCK AWAY SHOULD NOT LEAD TO A
SUBSTANTIALLY DIFFERENT RESULT.  AND SO, PUTTING TO ONE SIDE
ABSTRACTIONS REGARDING "SUBSTANCE" AND "PROCEDURE," WE HAVE HELD THAT
IN DIVERSITY CASES THE FEDERAL COURTS MUST FOLLOW THE LAW OF THE STATE
AS TO BURDEN OF PROOF, CITIES SERVICE CO. V. DUNLAP, 308 U.S. 208, AS
TO CONFLICT OF LAWS, KLAXON CO. V. STENTOR CO., 313 U.S. 487, AS TO
CONTRIBUTORY NEGLIGENCE, PALMER V. HOFFMAN, 318 U.S. 109, 117.  AND SEE
SAMPSON V. CHANNELL, 110 F.2D 754.  ERIE R. CO. V. TOMPKINS HAS BEEN
APPLIED WITH AN EYE ALERT TO ESSENTIALS IN AVOIDING DISREGARD OF STATE
LAW IN DIVERSITY CASES IN THE FEDERAL COURTS.  A POLICY SO IMPORTANT TO
OUR FEDERALISM MUST BE KEPT FREE FROM ENTANGLEMENTS WITH ANALYTICAL OR
TERMINOLOGICAL NICETIES. 

PLAINLY ENOUGH, A STATUTE THAT WOULD COMPLETELY BAR RECOVERY IN A
SUIT IF BROUGHT IN A STATE COURT BEARS ON A STATE-CREATED RIGHT VITALLY
AND NOT MERELY FORMALLY OR NEGLIGIBLY.  AS TO CONSEQUENCES THAT SO
INTIMATELY AFFECT RECOVERY OR NON-RECOVERY A FEDERAL COURT IN A
DIVERSITY CASE SHOULD FOLLOW STATE LAW.  SEE MORGAN, CHOICE OF LAW
GOVERNING PROOF (1944) 58 HARV. L. REV. 153, 155-158.  THE FACT THAT
UNDER NEW YORK LAW A STATUTE OF LIMITATIONS MIGHT BE LENGTHENED OR
SHORTENED, THAT A SECURITY MAY BE FORECLOSED THOUGH THE DEBT BE BARRED,
THAT A BARRED DEBT MAY BE USED AS A SET-OFF, ARE ALL MATTERS OF LOCAL
LAW PROPERLY TO BE RESPECTED BY FEDERAL COURTS SITTING IN NEW YORK WHEN
THEIR INCIDENCE COMES INTO PLAY THERE.  FN5  SUCH PARTICULAR RULES OF
LOCAL LAW, HOWEVER, DO NOT IN THE SLIGHTEST CHANGE THE CRUCIAL
CONSIDERATION THAT IF A PLEA OF THE STATUTE OF LIMITATIONS WOULD BAR
RECOVERY IN A STATE COURT, A FEDERAL COURT OUGHT NOT TO AFFORD
RECOVERY. 

PRIOR TO ERIE R. CO. V. TOMPKINS IT WAS NOT NECESSARY, AS WE HAVE
INDICATED, TO MAKE THE CRITICAL ANALYSIS REQUIRED BY THE DOCTRINE OF
THAT CASE OF THE NATURE OF JURISDICTION OF THE FEDERAL COURTS IN
DIVERSITY CASES.  BUT EVEN BEFORE ERIE R. CO. V. TOMPKINS, FEDERAL
COURTS RELIED ON STATUTES OF LIMITATIONS OF THE STATES IN WHICH THEY
SAT.  IN SUITS AT LAW STATE LIMITATIONS STATUTES WERE HELD TO BE "RULES
OF DECISION" WITHIN SEC. 34 OF THE JUDICIARY ACT OF 1789 AND AS SUCH
APPLIED IN "TRIALS AT COMMON LAW."  M'CLUNY V. SULLIVAN, 3 PET. 270;
BANK OF ALABAMA V. DALTON, 9 HOW.  522; LEFFINGWELL V. WARREN, 2 BLACK
599; BAUSERMAN V. BLUNT, 147 U.S. 647.  WHILE THERE WAS TALK OF FREEDOM
OF EQUITY FROM SUCH STATE STATUTES OF LIMITATIONS, THE CASES GENERALLY
REFUSED RECOVERY WHERE SUIT WAS BARRED IN A LIKE SITUATION IN THE STATE
COURTS, EVEN IF ONLY BY WAY OF ANALOGY.  SEE, E.G., GODDEN V. KIMMELL,
99 U.S. 201; ALSOP V. RIKER, 155 U.S. 448; BENEDICT V. CITY OF NEW
YORK, 250 U.S. 321, 327-328.  HOWEVER IN KIRBY V. LAKE SHORE & M.S.R.
CO., 120 U.S. 130, THE COURT DISREGARDED A STATE STATUTE OF LIMITATIONS
WHERE THE COURT DEEMED IT INEQUITABLE TO APPLY IT. 

TO MAKE AN EXCEPTION TO ERIE R. CO. V. TOMPKINS ON THE EQUITY SIDE OF
A FEDERAL COURT IS TO REJECT THE CONSIDERATIONS OF POLICY WHICH, AFTER
LONG TRAVAIL, LED TO THAT DECISION.  JUDGE AUGUSTUS N. HAND THUS
SUMMARIZED BELOW THE FATAL OBJECTION TO SUCH INROAD UPON ERIE R. CO. V.
TOMPKINS: "IN MY OPINION IT WOULD BE A MISCHIEVOUS PRACTICE TO
DISREGARD STATE STATUTES OF LIMITATION WHENEVER FEDERAL COURTS THINK
THAT THE RESULT OF ADOPTING THEM MAY BE INEQUITABLE.  SUCH PROCEDURE
WOULD PROMOTE THE CHOICE OF UNITED STATES RATHER THAN OF STATE COURTS
IN ORDER TO GAIN THE ADVANTAGE OF DIFFERENT LAWS.  THE MAIN FOUNDATION
FOR THE CRITICISM OF SWIFT V. TYSON WAS THAT A LITIGANT IN CASES WHERE
FEDERAL JURISDICTION IS BASED ONLY ON DIVERSE CITIZENSHIP MAY OBTAIN A
MORE FAVORABLE DECISION BY SUING IN THE UNITED STATES COURTS."  143
F.2D 503, 529, 531. 

DIVERSITY JURISDICTION IS FOUNDED ON ASSURANCE TO NONRESIDENT
LITIGANTS OF COURTS FREE FROM SUSCEPTIBILITY TO POTENTIAL LOCAL BIAS. 
THE FRAMERS OF THE CONSTITUTION, ACCORDING TO MARSHALL, ENTERTAINED
"APPREHENSIONS" LEST DISTANT SUITORS BE SUBJECTED TO LOCAL BIAS IN
STATE COURTS, OR, AT LEAST, VIEWED WITH "INDULGENCE THE POSSIBLE FEARS
AND APPREHENSIONS" OF SUCH SUITORS.  BANK OF THE UNITED STATES V.
DEVEAUX, 5 CRANCH 61, 87.  AND SO CONGRESS AFFORDED OUT-OF-STATE
LITIGANTS ANOTHER TRIBUNAL, NOT ANOTHER BODY OF LAW.  THE OPERATION OF
A DOUBLE SYSTEM OF CONFLICTING LAWS IN THE SAME STATE IS PLAINLY
HOSTILE TO THE REIGN OF LAW.  CERTAINLY, THE FORTUITOUS CIRCUMSTANCE OF
RESIDENCE OUT OF A STATE OF ONE OF THE PARTIES TO A LITIGATION OUGHT
NOT TO GIVE RISE TO A DISCRIMINATION AGAINST OTHERS EQUALLY CONCERNED
BUT LOCALLY RESIDENT.  THE SOURCE OF SUBSTANTIVE RIGHTS ENFORCED BY A
FEDERAL COURT UNDER DIVERSITY JURISDICTION, IT CANNOT BE SAID TOO
OFTEN, IS THE LAW OF THE STATES.  WHENEVER THAT LAW IS AUTHORITATIVELY
DECLARED BY A STATE, WHETHER ITS VOICE BE THE LEGISLATURE OR ITS
HIGHEST COURT, SUCH LAW OUGHT TO GOVERN IN LITIGATION FOUNDED ON THAT
LAW, WHETHER THE FORUM OF APPLICATION IS A STATE OR A FEDERAL COURT AND
WHETHER THE REMEDIES BE SOUGHT AT LAW OR MAY BE HAD IN EQUITY. 

DICTA MAY BE CITED CHARACTERIZING EQUITY AS AN INDEPENDENT BODY OF
LAW.  TO THE EXTENT THAT WE HAVE INDICATED, IT IS.  BUT INSOFAR AS
THESE GENERAL OBSERVATIONS GO BEYOND THAT, THEY MERELY REFLECT NOTIONS
THAT HAVE BEEN REPLACED BY A SHARPER ANALYSIS OF WHAT FEDERAL COURTS DO
WHEN THEY ENFORCE RIGHTS THAT HAVE NO FEDERAL ORIGIN.  AND SO, BEFORE
THE TRUE SOURCE OF LAW THAT IS APPLIED BY THE FEDERAL COURTS UNDER
DIVERSITY JURISDICTION WAS FULLY EXPLORED, SOME THINGS WERE SAID THAT
WOULD NOT NOW BE SAID.  BUT NOTHING THAT WAS DECIDED, UNLESS IT BE THE
KIRBY CASE, NEEDS TO BE REJECTED. 

THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  SO ORDERED. 

FN1  IN RUSSELL V. SOUTHARD, 12 HOW.  139, 147, MR. JUSTICE CURTIS,
REFUSING TO BE BOUND BY KENTUCKY LAW BARRING THE RECEPTION OF ORAL
EVIDENCE TO SHOW THAT AN ABSOLUTE BILL OF SALE WAS IN REALITY A
MORTGAGE, DECLARED THAT "UPON THE PRINCIPLES OF GENERAL EQUITY
JURISPRUDENCE, THIS COURT MUST BE GOVERNED BY ITS OWN VIEWS OF THOSE
PRINCIPLES."  TO SUPPORT THIS STATEMENT, HE CITED, AMONG OTHERS,
ROBINSON V. CAMPBELL, 3 WHEAT.  212, BOYLE V. ZACHARIE AND TURNER, 6
PET. 648, AND SWIFT V. TYSON, SUPRA.  THIS COMMINGLING OF LAW AND
EQUITY CASES INDICATES THAT THE SAME VIEWS GOVERNED BOTH AND THAT SWIFT
V. TYSON WAS MERELY ANOTHER EXPRESSION OF THE IDEAS PUT FORTH IN THE
EQUITY CASES. 

FN2  IN BANK OF HAMILTON V. DUDLEY'S LESSEE, 2 PET. 492, 525, CHIEF
JUSTICE MARSHALL, IN DISCUSSING THE APPLICABILITY OF OHIO OCCUPANT LAW
AS "RULES OF DECISION" UNDER SEC. 34, SAID, "THE LAWS OF THE STATES,
AND THE OCCUPANT LAW, LIKE OTHERS, WOULD BE SO REGARDED, INDEPENDENT OF
THAT SPECIAL ENACTMENT...."  IT IS INTERESTING TO NOTE THAT THIS
JUDICIAL PRONOUNCEMENT CORRESPONDS TO THE VIEWS JOHN MARSHALL EXPRESSED
IN THE VIRGINIA CONVENTION CALLED TO RATIFY THE CONSTITUTION. 
RESPONDING TO GEORGE MASON'S QUESTION AS TO WHAT LAW WOULD APPLY IN THE
FEDERAL COURTS IN DIVERSITY CASES, MARSHALL DECLARED:  "BY THE LAWS OF
WHICH STATE WILL IT BE DETERMINED?  SAID HE. BY THE LAWS OF THE STATE
WHERE THE CONTRACT WAS MADE.  ACCORDING TO THOSE LAWS, AND THOSE ONLY,
CAN IT BE DECIDED.  IS THIS A NOVELTY?  NO; IT IS A PRINCIPLE IN THE
JURISPRUDENCE OF THIS COMMONWEALTH."  3 ELLIOTT'S DEBATES, 556. 

FN3  IN PUSEY & JONES CO. V. HANSSEN, SUPRA, THE COURT HAD TO DECIDE
WHETHER A DELAWARE STATUTE HAD CREATED A NEW RIGHT APPROPRIATE FOR
ENFORCEMENT IN ACCORDANCE WITH TRADITIONAL EQUITY PRACTICE OR WHETHER
THE STATUTE HAD MERELY GIVEN THE DELAWARE CHANCERY COURT A NEW KIND OF
REMEDY.  THE STATUTE AUTHORIZED THE CHANCELLOR TO APPOINT A RECEIVER
FOR AN INSOLVENT CORPORATION UPON THE APPLICATION OF AN UNSECURED
SIMPLE CONTRACT CREDITOR.  SUIT WAS BROUGHT IN A FEDERAL EQUITY COURT
UNDER DIVERSITY JURISDICTION.  ALTHOUGH TRADITIONAL EQUITY NOTIONS DO
NOT GIVE A SIMPLE CONTRACT CREDITOR AN INTEREST IN THE FUNDS OF AN
INSOLVENT DEBTOR, THE STATE MAY, AS THIS COURT RECOGNIZED, CREATE SUCH
AN INTEREST.  WHEN THE STATE HAS DONE THAT, WHATEVER REMEDIES ARE
CONSONANT WITH THE PRACTICE OF EQUITY COURTS IN EFFECTUATING CREDITOR'S
RIGHTS COME INTO PLAY.  PUSEY & JONES CO. V. HANSSEN, SUPRA, DID NOT
QUESTION THAT IN THE CASE OF DIVERSITY JURISDICTION THE STATES CREATE
THE OBLIGATION FOR WHICH RELIEF IS SOUGHT.  BUT THE COURT CONSTRUED THE
DELAWARE STATUTE MERELY TO EXTEND THE POWER TO AN EQUITY COURT TO
APPOINT A RECEIVER ON THE APPLICATION OF AN ORDINARY CONTRACT
CREDITOR.  BY CONFERRING NEW DISCRETIONARY AUTHORITY UPON ITS EQUITY
COURT, DELAWARE COULD NOT MODIFY THE TRADITIONAL EQUITY RULE IN THE
FEDERAL COURTS THAT ONLY SOMEONE WITH A DEFINED INTEREST IN THE ESTATE
OF AN INSOLVENT PERSON, E.G., A JUDGMENT CREDITOR, CAN PROTECT THAT
INTEREST THROUGH RECEIVERSHIP.  BUT THE COURT RECOGNIZED THAT IF THE
DELAWARE STATUTE HAD BEEN ONE NOT REGULATING THE POWERS OF THE CHANCERY
COURT OF DELAWARE BUT CREATING A NEW INTEREST IN A CONTRACT CREDITOR,
THE FEDERAL COURT WOULD HAVE HAD POWER TO GRANT A RECEIVERSHIP AT THE
BEHEST OF SUCH A SIMPLE CONTRACT CREDITOR, AS MUCH SO AS IN THE CASE OF
A SECURED CREDITOR.  SEE MACKENZIE OIL CO. V. OMAR OIL & GAS CO., 14
DEL. CH. 36, 45, 120 A. 852, FOR DELAWARE'S VIEW AS TO THE NATURE OF
THE DELAWARE STATUTE. 

FN4  "IT IS TRUE THAT WHERE A STATE STATUTE CREATES A NEW EQUITABLE
RIGHT OF A SUBSTANTIVE CHARACTER, WHICH CAN BE ENFORCED BY PROCEEDINGS
IN CONFORMITY WITH THE PLEADINGS AND PRACTICE APPROPRIATE TO A COURT OF
EQUITY, SUCH ENFORCEMENT MAY BE HAD IN A FEDERAL COURT PROVIDED A
GROUND EXISTS FOR INVOKING THE FEDERAL JURISDICTION....  BUT THE
ENFORCEMENT IN THE FEDERAL COURTS OF NEW EQUITABLE RIGHTS CREATED BY
STATES IS SUBJECT TO THE QUALIFICATION THAT SUCH ENFORCEMENT MUST NOT
IMPAIR ANY RIGHT CONFERRED, OR CONFLICT WITH ANY INHIBITION IMPOSED, BY
THE CONSTITUTION OR LAWS OF THE UNITED STATES....  WHATEVER UNCERTAINTY
MAY HAVE ARISEN BECAUSE OF EXPRESSIONS WHICH DID NOT FULLY ACCORD WITH
THE RULE AS THUS STATED, THE DISTINCTION, WITH RESPECT TO THE EFFECT OF
STATE LEGISLATION, HAS COME TO BE CLEARLY ESTABLISHED BETWEEN
SUBSTANTIVE AND REMEDIAL RIGHTS."  HENRIETTA MILLS V. RUTHERFORD CO.,
SUPRA AT 127-128.    FN5  SEE, E.G., HULBERT V. CLARK, 128 N.Y. 295, 28
N.E. 638; HOUSE V. CARR, 185 N.Y. 453, 78 N.E. 171; LIGHTFOOT V. DAVIS,
198 N.Y. 261, 91 N.E. 582; DAVIDSON V. WITTHAUS, 106 APP. DIV. 182, 94
N.Y.S. 428; MATTER OF EWALD, 174 MISC. 939, 22 N.Y.S.2D 299.  THE
STATUTE MAY BE WAIVED, PEOPLES TRUST CO. V. O'NEIL, 273 N.Y. 312, 316,
237 N.Y.S. 180, AND MUST BE PLEADED, DUNKUM V. MACECK BUILDING CORP.,
227 APP. DIV. 230, 7 N.E.2D 244. 

MR. JUSTICE ROBERTS AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE RUTLEDGE. 

I DISSENT.  IF THE POLICY OF JUDICIAL CONSERVATISM WERE TO BE
FOLLOWED IN THIS CASE, WHICH FORBIDS DECIDING CONSTITUTIONAL AND OTHER
IMPORTANT QUESTIONS HYPOTHETICALLY OR PREMATURELY, I WOULD FAVOR
REMANDING THE CAUSE TO THE COURT OF APPEALS FOR DETERMINATION OF THE
NARROW AND COMPARATIVELY MINOR QUESTION WHETHER, UNDER THE APPLICABLE
LOCAL LAW, THE CAUSE OF ACTION HAS BEEN BARRED BY LAPSE OF TIME.  THAT
QUESTION HAS NOT BEEN DECIDED,  FN1  MAY BE DETERMINED IN RESPONDENT'S
FAVOR, AND IN THAT EVENT THE IMPORTANT QUESTION AFFECTING FEDERAL
JUDICIAL POWER NOW RESOLVED, IN A MANNER CONTRARY TO ALL PRIOR DECISION
HERE, WILL HAVE BEEN DETERMINED WITHOUT SUBSTANTIAL ULTIMATE EFFECT
UPON THE LITIGATION.  FN2 

BUT THE COURT CONCEIVES ITSELF CONFRONTED WITH THE NECESSITY FOR
MAKING THAT DETERMINATION AND IN DOING SO OVERTURNS A RULE OF DECISION
WHICH HAS PREVAILED IN THE FEDERAL COURTS FROM ALMOST THE BEGINNING.  I
AM UNABLE TO ASSENT TO THAT DECISION, FOR REASONS STATED BY THE COURT
OF APPEALS FN3  AND OTHERS TO BE MENTIONED ONLY BRIEFLY.  ONE MAY GIVE
FULL ADHERENCE TO THE RULE OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64, AND
ITS EXTENSION TO CASES IN EQUITY IN SO FAR AS THEY AFFECT CLEARLY
SUBSTANTIVE RIGHTS, WITHOUT CONCEDING OR ASSUMING THAT THE LONG
TRADITION, BOTH FEDERAL AND STATE, WHICH REGARDS STATUTES OF
LIMITATIONS AS FALLING WITHIN THE CATEGORY OF REMEDIAL RATHER THAN
SUBSTANTIVE LAW, NECESSARILY MUST BE RULED IN THE SAME WAY; AND WITHOUT
CONCEDING FURTHER THAT ONLY A DIFFERENT JURISPRUDENTIAL CLIMATE OR A
KIND OF "BROODING OMNIPRESENCE IN THE SKY" HAS DICTATED THE HITHERTO
UNVARIED POLICY OF THE FEDERAL COURTS IN THEIR GENERAL ATTITUDE TOWARD
THE STRICT APPLICATION OF LOCAL STATUTES OF LIMITATIONS IN EQUITY
CAUSES. 

IF ANY CHARACTERISTIC OF EQUITY JURISPRUDENCE HAS DESCENDED
UNBROKENLY FROM AND WITHIN "THE TRADITIONAL SCOPE OF EQUITY AS
HISTORICALLY EVOLVED IN THE ENGLISH COURT OF CHANCERY," IT IS THAT
STATUTES OF LIMITATIONS, OFTEN IN TERMS APPLYING ONLY TO ACTIONS AT
LAW, HAVE NEVER BEEN DEEMED TO BE RIGIDLY APPLICABLE AS ABSOLUTE
BARRIERS TO SUITS IN EQUITY AS THEY ARE TO ACTIONS AT LAW.  FN4 THAT
TRADITION, IT WOULD SEEM, SHOULD BE REGARDED AS HAVING BEEN
INCORPORATED IN THE VARIOUS ACTS OF CONGRESS WHICH HAVE CONFERRED
EQUITY JURISDICTION UPON THE FEDERAL COURTS.  SO INCORPORATED, IT HAS
BEEN REAFFIRMED REPEATEDLY BY THE DECISIONS OF THIS AND OTHER COURTS. 
FN5  IT IS NOW EXCISED FROM THOSE ACTS.  IF THERE IS TO BE EXCISION,
CONGRESS, NOT THIS COURT, SHOULD MAKE IT. 

MOREOVER, THE DECISION OF TODAY DOES NOT IN SO MANY WORDS RULE THAT
CONGRESS COULD NOT AUTHORIZE THE FEDERAL COURTS TO ADMINISTER EQUITABLE
RELIEF IN ACCORDANCE WITH THE SUBSTANTIVE RIGHTS OF THE PARTIES,
NOTWITHSTANDING STATE COURTS HAD BEEN FORBIDDEN BY LOCAL STATUTES OF
LIMITATIONS TO DO SO.  NEVERTHELESS THE IMPLICATION TO THAT EFFECT
SEEMS STRONG, IN VIEW OF THE RELIANCE UPON ERIE R. CO. V. TOMPKINS. 
FN6  IN ANY EVENT, THE QUESTION LOOMS MORE LARGELY IN THE ISSUES THAN
THE COURT'S OPINION APPEARS TO MAKE IT.  FOR IF LEGISLATIVE
ACQUIESCENCE IN LONG-ESTABLISHED JUDICIAL CONSTRUCTION CAN MAKE IT PART
OF A STATUTE, IT HAS DONE SO IN THIS INSTANCE.  MORE IS AT STAKE IN THE
IMPLICATIONS OF THE DECISION, IF NOT IN THE WORDS OF THE OPINION, THAN
SIMPLY BRINGING FEDERAL AND LOCAL LAW INTO ACCORD UPON MATTERS CLEARLY
AND EXCLUSIVELY WITHIN THE CONSTITUTIONAL POWER OF THE STATE TO
DETERMINE.  IT IS ONE THING TO REQUIRE THAT KIND OF AN ACCORD IN
DIVERSITY CASES WHEN THE QUESTION IS MERELY WHETHER THE FEDERAL COURT
MUST FOLLOW THE LAW OF THE STATE AS TO BURDEN OF PROOF, CITIES SERVICE
CO. V. DUNLAP, 308 U.S. 208; CONTRIBUTORY NEGLIGENCE, PALMER V.
HOFFMAN, 318 U.S. 109, 117; OR PERHAPS IN APPLICATION OF THE SO-CALLED
PAROL EVIDENCE RULE.  THESE ORDINARILY INVOLVE MATTERS OF SUBSTANTIVE
LAW, THOUGH NOMINATED IN TERMS OF PROCEDURE.  BUT IN SOME INSTANCES
THEIR APPLICATION MAY LIE ALONG THE BORDER BETWEEN PROCEDURE OR REMEDY
AND SUBSTANCE, WHERE THE ONE MAY OR MAY NOT BE IN FACT BUT ANOTHER NAME
FOR THE OTHER.  IT IS EXACTLY IN THIS BORDERLAND, WHERE PROCEDURAL OR
REMEDIAL RIGHTS MAY OR MAY NOT HAVE THE EFFECT OF DETERMINING THE
SUBSTANTIVE ONES COMPLETELY, THAT CAUTION IS REQUIRED IN EXTENDING THE
RULE OF THE ERIE CASE BY THE VERY RULE ITSELF. 

THE WORDS "SUBSTANTIVE" AND "PROCEDURAL" OR "REMEDIAL" ARE NOT
TALISMANIC.  MERELY CALLING A LEGAL QUESTION BY ONE OR THE OTHER DOES
NOT RESOLVE IT OTHERWISE THAN AS A PURELY AUTHORITARIAN PERFORMANCE. 
BUT THEY HAVE COME TO DESIGNATE IN A BROAD WAY LARGE AND DISTINCTIVE
LEGAL DOMAINS WITHIN THE GREATER ONE OF THE LAW AND TO MARK, THOUGH
OFTEN INDISTINCTLY OR WITH OVERLAPPING LIMITS, MANY DIVIDES BETWEEN
SUCH REGIONS. 

ONE OF THESE HISTORICALLY HAS BEEN THE DIVIDE BETWEEN THE SUBSTANTIVE
LAW AND THE PROCEDURAL OR REMEDIAL LAW TO BE APPLIED BY THE FEDERAL
COURTS IN DIVERSITY CASES, A DIVISION SHARPENED BUT NOT WIPED OUT BY
ERIE R. CO. V. TOMPKINS AND SUBSEQUENT DECISIONS EXTENDING THE SCOPE OF
ITS RULING.  THE LARGE DIVISION BETWEEN ADJECTIVE LAW AND SUBSTANTIVE
LAW STILL REMAINS, TO DIVIDE THE POWER OF CONGRESS FROM THAT OF THE
STATES AND CONSEQUENTLY TO DETERMINE THE POWER OF THE FEDERAL COURTS TO
APPLY FEDERAL LAW OR STATE LAW IN DIVERSITY MATTERS. 

THIS DIVISION, LIKE OTHERS DRAWN BY THE BROAD ALLOCATION OF ADJECTIVE
OR REMEDIAL AND SUBSTANTIVE, HAS AREAS OF ADMIXTURE OF THESE TWO
ASPECTS OF THE LAW.  IN THESE AREAS WHETHER A PARTICULAR SITUATION OR
ISSUE PRESENTS ONE ASPECT OR THE OTHER DEPENDS UPON HOW ONE LOOKS AT
THE MATTER.  AS FORM CANNOT ALWAYS BE SEPARATED FROM SUBSTANCE IN A
WORK OF ART, SO ADJECTIVE OR REMEDIAL ASPECTS CANNOT BE PARTED ENTIRELY
FROM SUBSTANTIVE ONES IN THESE BORDERLAND REGIONS. 

WHENEVER THIS INTEGRATION OR ADMIXTURE PREVAILS IN A SUBSTANTIAL
MEASURE, SO THAT A CLEAN BREAK CANNOT BE MADE, THERE IS DANGER EITHER
OF NULLIFYING THE POWER OF CONGRESS TO CONTROL NOT ONLY HOW THE FEDERAL
COURTS MAY ACT, BUT WHAT THEY MAY DO BY WAY OF AFFORDING REMEDIES, OR
OF USURPING THAT FUNCTION, IF THE ERIE DOCTRINE IS TO BE EXPANDED
JUDICIALLY TO INCLUDE SUCH SITUATIONS TO THE UTMOST EXTENT. 

IT MAY BE TRUE THAT IF THE MATTER WERE WHOLLY FRESH THE BARRING OF
RIGHTS IN EQUITY BY STATUTES OF LIMITATION WOULD SEEM TO PARTAKE MORE
OF THE SUBSTANTIVE THAN OF THE REMEDIAL PHASE OF LAW.  BUT THE MATTER
IS NOT FRESH AND IT IS NOT WITHOUT ROOM FOR DEBATE.  A LONG TRADITION,
IN THE STATES AND HERE, AS WELL AS IN THE COMMON LAW WHICH ANTEDATED
BOTH STATE AND FEDERAL LAW, HAS EMPHASIZED THE REMEDIAL CHARACTER OF
STATUTES OF LIMITATIONS, MORE ESPECIALLY IN APPLICATION TO EQUITY
CAUSES, ON MANY KINDS OF ISSUES REQUIRING DIFFERENTIATION OF SUCH
MATTERS FROM MORE CLEARLY AND EXCLUSIVELY SUBSTANTIVE ONES.  WE HAVE
RECENTLY REAFFIRMED THE DISTINCTION IN RELATION TO THE POWER OF A STATE
TO CHANGE ITS LAWS WITH RETROACTIVE EFFECT, GIVING RENEWED VIGOR IF NOT
NEW LIFE TO CAMPBELL V. HOLT, 115 U.S. 620.  CHASE SECURITIES CORP. V.
DONALDSON, 325 U.S. 304.  SIMILAR, THOUGH OF COURSE NOT IDENTICAL,
ARGUMENTS WERE ADVANCED IN THAT CASE TO BRING ABOUT DEPARTURE FROM THE
LONG-ESTABLISHED RULE, BUT WITHOUT SUCCESS.  THE TRADITION NOW IN
QUESTION IS EQUALLY LONG AND UNVARIED.  I CANNOT SAY THE TRADITION IS
CLEARLY WRONG IN THIS CASE MORE THAN IN THAT.  NOR CAN I SAY, AS WAS
SAID IN THE ERIE CASE, THAT THE MATTER IS BEYOND THE POWER OF CONGRESS
TO CONTROL.  IF THAT BE CONCEDED, I THINK CONGRESS SHOULD MAKE THE
CHANGE IF IT IS TO BE MADE.  THE ERIE DECISION WAS RENDERED IN 1938. 
SEVEN YEARS HAVE PASSED WITHOUT ACTION BY CONGRESS TO EXTEND THE RULE
TO THESE MATTERS.  THAT IS LONG ENOUGH TO JUSTIFY THE CONCLUSION THAT
CONGRESS ALSO REGARDS THEM AS NOT GOVERNED BY ERIE AND AS WISHING TO
MAKE NO CHANGE.  THIS SHOULD BE REASON ENOUGH FOR LEAVING THE MATTER AT
REST UNTIL IT DECIDES TO ACT. 

FINALLY, THIS CASE ARISES FROM WHAT ARE IN FACT IF NOT IN LAW
INTERSTATE TRANSACTIONS.  FN7  IT INVOLVES THE RIGHTS OF SECURITY
HOLDERS IN RELATION TO SECURITIES WHICH WERE DISTRIBUTED NOT IN NEW
YORK OR OHIO ALONE BUT WIDELY THROUGHOUT THE COUNTRY.  THEY ARE THE
KIND OF RIGHTS WHICH CONGRESS ACTED TO SAFEGUARD WHEN IT ADOPTED THE
SECURITIES AND EXCHANGE LEGISLATION.  FN8 SPECIFIC PROVISIONS OF THAT
LEGISLATION ARE NOT INVOLVED IN THIS LITIGATION.  THE BROAD POLICIES
UNDERLYING IT MAY BE INVOLVED OR AFFECTED, NAMELY, BY THE EXISTENCE OF
ADEQUATE FEDERAL REMEDIES, WHETHER JUDICIAL OR LEGISLATIVE, FOR THE
PROTECTION OF SECURITY HOLDERS AGAINST THE MISCONDUCT OF ISSUERS OR
AGAINST THE BREACH OF RIGHTS BY TRUSTEES.  EVEN THOUGH THE BASIC RIGHTS
MAY BE CONTROLLED BY STATE LAW, IN SUCH SITUATIONS THE QUESTION IS
OFTEN A DIFFICULT ONE WHETHER THE LAW OF ONE STATE OR ANOTHER APPLIES;
AND THIS IS TRUE NOT ONLY OF RIGHTS CLEARLY SUBSTANTIVE BUT ALSO OF
THOSE VARIOUSLY CHARACTERIZED AS PROCEDURAL OR REMEDIAL AND SUBSTANTIVE
WHICH INVOLVE THE APPLICATION OF STATUTES OF LIMITATIONS. 

APPLICABLE STATUTES OF LIMITATIONS IN STATE TRIBUNALS ARE NOT ALWAYS
THE ONES WHICH WOULD APPLY IF SUIT WERE INSTITUTED IN THE COURTS OF THE
STATE WHICH CREATES THE SUBSTANTIVE RIGHTS FOR WHICH ENFORCEMENT IS
SOUGHT.  THE STATE OF THE FORUM IS FREE TO APPLY ITS OWN PERIOD OF
LIMITATIONS, REGARDLESS OF WHETHER THE STATE ORIGINATING THE RIGHT HAS
BARRED SUIT UPON IT.  FN9  WHETHER OR NOT THE ACTION WILL BE HELD TO BE
BARRED DEPENDS THEREFORE NOT UPON THE LAW OF THE STATE WHICH CREATES
THE SUBSTANTIVE RIGHT, BUT UPON THE LAW OF THE STATE WHERE SUIT MAY BE
BROUGHT.  THIS IN TURN WILL DEPEND UPON WHERE IT MAY BE POSSIBLE TO
SECURE SERVICE OF PROCESS, AND THUS JURISDICTION OF THE PERSON OF THE
DEFENDANT.  IT MAY BE THEREFORE THAT BECAUSE OF THE PLAINTIFF'S
INABILITY TO FIND THE DEFENDANT IN THE JURISDICTION WHICH CREATES HIS
SUBSTANTIVE RIGHT, HE WILL BE FORECLOSED OF REMEDY BY THE SHEER
NECESSITY OF GOING TO THE HAVEN OF REFUGE WITHIN WHICH THE DEFENDANT
CONFINES ITS "PRESENCE" FOR JURISDICTIONAL PURPOSES.  THE LAW OF THE
LATTER MAY BAR THE SUIT EVEN THOUGH SUIT STILL WOULD BE ALLOWED UNDER
THE LAW OF THE STATE CREATING THE SUBSTANTIVE RIGHT. 

IT IS NOT CLEAR WHETHER TODAY'S DECISION PUTS IT INTO THE POWER OF
CORPORATE TRUSTEES, BY CONFINING THEIR JURISDICTIONAL "PRESENCE" TO
STATES WHICH ALLOW THEIR COURTS TO GIVE EQUITABLE REMEDIES ONLY WITHIN
SHORT PERIODS OF TIME, TO DEFEAT THE PURPOSE AND INTENT OF THE LAW OF
THE STATE CREATING THE SUBSTANTIVE RIGHT.  IF SO, THE "RIGHT" REMAINS
ALIVE, WITH FULL-FLEDGED REMEDY, BY THE LAW OF ITS ORIGIN, AND BECAUSE
ENFORCEMENT MUST BE HAD IN ANOTHER STATE, WHICH AFFORDS REFUGE AGAINST
IT, THE REMEDY AND WITH IT THE RIGHT ARE NULLIFIED.  I DOUBT THAT THE
CONSTITUTION OF THE UNITED STATES REQUIRES THIS, OR THAT THE JUDICIARY
ACTS PERMIT IT.  A GOOD CASE CAN BE MADE, INDEED HAS BEEN MADE, THAT
THE DIVERSITY JURISDICTION WAS CREATED TO AFFORD PROTECTION AGAINST
EXACTLY THIS SORT OF NULLIFYING STATE LEGISLATION.  FN10 

IN MY JUDGMENT THIS FURNISHES ADDED REASON FOR LEAVING ANY CHANGE, IF
ONE IS TO BE MADE, TO THE JUDGMENT OF CONGRESS.  THE NEXT STEP MAY WELL
BE TO SAY THAT IN APPLYING THE DOCTRINE OF LACHES A FEDERAL COURT MUST
SURRENDER ITS OWN JUDGMENT AND ATTEMPT TO FIND OUT WHAT A STATE COURT
SITTING A BLOCK AWAY WOULD DO WITH THAT NOTORIOUSLY AMORPHOUS
DOCTRINE. 

FN1  THE COURT OF APPEALS ONLY ASSUMED ARGUENDO THAT THE LOCAL
STATUTE OF LIMITATIONS HAD TERMINATED THE RIGHT TO SUE.  143 F.2D 503. 

FN2  AN INFERIOR COURT, OF COURSE, IS FREE TO SELECT ONE OR MORE OF
SEVERAL AVAILABLE GROUNDS UPON WHICH TO REST ITS DECISION; AND
GENERALLY, ON REVIEW HERE, OUR FUNCTION SHOULD BE PERFORMED BY PASSING
UPON THE GROUNDS CHOSEN.  BUT THERE ARE CIRCUMSTANCES IN WHICH IT IS
PROPER TO VACATE THE JUDGMENT AND REMAND THE CAUSE FOR CONSIDERATION OF
OTHER ISSUES PRESENTED.  CF. E.G., THE RECENT INSTANCE OF HERB V.
PITCAIRN, 324 U.S. 117; 325 U.S. 77. 

FN3  143 F.2D 503.  THE COURT'S OPINION REVIEWS AT LENGTH THE
UNBROKEN COURSE OF DECISION NOW OVERTURNED. 

FN4  MICHOUD V. GIROD, 4 HOW.  503, 561; MEADER V. NORTON, 11 WALL. 
442; BAILEY V. GLOVER, 21 WALL.  342, 348; KIRBY V. LAKE SHORE & M.S.R.
CO., 120 U.S. 130. 

FN5  SEE THE AUTHORITIES CITED AND DISCUSSED, 143 F.2D 503, 522-524. 
SEE ALSO COMMITTEE FOR HOLDERS V. KENT, 143 F.2D 684, 687; OVERFIELD V.
PENNROAD CORP., 146 F.2D 889, 901, 921-923. 

FN6  IN THE ERIE CASE THE COURT SAID:  "IF ONLY A QUESTION OF
STATUTORY CONSTRUCTION WERE INVOLVED, WE SHOULD NOT BE PREPARED TO
ABANDON A DOCTRINE SO WIDELY APPLIED THROUGHOUT NEARLY A CENTURY.  BUT
THE UNCONSTITUTIONALITY OF THE COURSE PURSUED HAS NOW BEEN MADE CLEAR
AND COMPELS US TO DO SO."  304 U.S. 64, 77-78. 

FN7  REFERENCE IS MADE TO THE OPINION OF THE COURT OF APPEALS FOR A
DETAILED STATEMENT OF THE NATURE AND SCOPE OF THE INTRICATE AND
ELABORATE FINANCIAL TRANSACTIONS, INVOLVING THE DISTRIBUTION OF
$30,000,000 WORTH OF SECURITIES, APPARENTLY IN MANY STATES, INCLUDING
OHIO AND NEW YORK, AND RIGHTS GROWING OUT OF THE DISTRIBUTION.  143
F.2D AT 505 ET SEQ. SEE ALSO EASTMAN V. MORGAN, 43 F.SUPP.  637, AFF'D
SUB NOM. HACKNER V. MORGAN, 130 F.2D 300, CERT. DENIED, 317 U.S. 691. 
FN8  CF. S. REP. NO. 714, 77TH CONG., 1ST SESS., ADDITIONAL REPORT OF
COMMITTEE ON INTERSTATE COMMERCE PURSUANT TO S. RES. 71, 74TH CONG.,
PTS.  1-4.  SEE ALSO STOCK EXCHANGE PRACTICES, HEARINGS BEFORE
COMMITTEE ON BANKING AND CURRENCY ON S. RES. 84, 72D CONG. AND S. RES.
56 AND 97, 73D CONG. 

FN9  3 BEALE, CONFLICT OF LAWS (1935 ED.)  1620, 1621; GOODRICH,
CONFLICT OF LAWS (1938 ED.)  201, 202. 

FN10  FRANKFURTER, DISTRIBUTION OF JUDICIAL POWER BETWEEN UNITED
STATES AND STATE COURTS (1928) 13 CORN.  L.Q. 499, 520.  SEE CORWIN,
THE PROGRESS OF CONSTITUTIONAL THEORY (1925) 30 AM. HIST. REV. 511,
514.  SEE ALSO FRIENDLY, THE HISTORIC BASIS OF DIVERSITY JURISDICTION
(1928) 41 HARV. L. REV. 483, 495-497.  THAT THE MOTIVATING DESIRE WAS
OR MAY HAVE BEEN TO PROTECT CREDITORS WHO WERE MEN OF BUSINESS DOES NOT
MAKE THE POLICY LESS APPLICABLE WHEN THE CREDITOR IS A CUSTOMER OF SUCH
MEN. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 
..END :










RADIO STATION WOW V. JOHNSON, 326 U.S. 120 


NO. 593.  ARGUED MARCH 1, 1945.  - DECIDED JUNE 18, 1945.  - 144 NEB.
406, 14 N.W.2D 666, REMANDED. 


1.  A STATE COURT DECREE OTHERWISE "FINAL" FOR PURPOSES OF REVIEW BY
THIS COURT IS NONE THE LESS SO BECAUSE IT ORDERS ALSO AN ACCOUNTING OF
PROFITS, WHERE SUCH ACCOUNTING CAN NOT GIVE RISE TO A FEDERAL
QUESTION.  JUDICIAL CODE, SEC. 237.  P. 127. 

2.  THIS COURT WILL NOT REVIEW A STATE COURT DECISION RESTING ON AN
ADEQUATE AND INDEPENDENT NON-FEDERAL GROUND, EVEN THOUGH THE STATE
COURT MAY ALSO HAVE SUMMONED TO ITS SUPPORT AN ERRONEOUS VIEW OF
FEDERAL LAW.  P. 129. 

3.  IN A DECREE DIRECTING A TRANSFER OF THE FACILITIES OF A FEDERALLY
LICENSED RADIO STATION, THE STATE COURT EXCEEDED ITS POWER IN ORDERING
THE PARTIES "TO DO ALL THINGS NECESSARY" TO SECURE A TRANSFER OF THE
LICENSE, SINCE THIS INVOLVED RESTRICTIONS UPON THE LICENSING SYSTEM
WHICH CONGRESS HAS ESTABLISHED.  COMMUNICATIONS ACT, SEC. 307(A).  P.
130. 

4.  ALTHOUGH THE STATE HAS NOT BEEN DEPRIVED BY FEDERAL LEGISLATION
OF THE PRACTICAL POWER TO TERMINATE A BROADCASTING SERVICE BY A PROPER
ADJUDICATION SEPARATING THE PHYSICAL PROPERTY FROM THE LICENSE, THAT
POWER WILL BE AMPLY RESPECTED, IN THE INSTANT CASE, IF IT IS QUALIFIED
MERELY TO THE EXTENT OF REQUIRING THE STATE COURT TO WITHHOLD EXECUTION
OF THAT PORTION OF THE DECREE REQUIRING RETRANSFER OF THE PHYSICAL
PROPERTIES UNTIL STEPS ARE ORDERED TO BE TAKEN, WITH ALL DELIBERATE
SPEED, TO ENABLE THE COMMUNICATIONS COMMISSION TO DEAL WITH NEW
APPLICATIONS IN CONNECTION WITH THE STATION.  P. 132. 

5.  THE QUESTION OF FRAUD ADJUDICATED BY THE STATE COURT WILL NO
LONGER BE OPEN INSOFAR AS IT BEARS UPON THE RELIABILITY AS LICENSEE OF
ANY OF THE PARTIES.  P. 132. 

RADIO STATION WOW, INC. ET AL. V. JOHNSON. 

CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

CERTIORARI, 323 U.S. 705, TO REVIEW THE REVERSAL OF A DECREE
DISMISSING THE COMPLAINT IN A SUIT TO SET ASIDE A LEASE AND AN
ASSIGNMENT OF A LICENSE OF A RADIO STATION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE RELATION OF THE FEDERAL COMMUNICATIONS ACT, 48
STAT. 1064, 47 U.S.C. SEC. 151 ET SEQ., TO THE POWER OF A STATE TO
ADJUDICATE CONFLICTING CLAIMS TO THE PROPERTY USED BY A LICENSED RADIO
STATION.  AT THE OUTSET, HOWEVER, OUR RIGHT TO REVIEW THE DECISION
BELOW IS SERIOUSLY CHALLENGED. 

THE FACTS RELEVANT TO THE JURISDICTIONAL PROBLEM AS WELL AS TO THE
MAIN ISSUES ARE THESE, SUMMARIZED AS BRIEFLY AS ACCURACY PERMITS. 
PETITIONER, WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, A FRATERNAL
BENEFIT ASSOCIATION OF NEBRASKA, OWNS RADIO STATION WOW.  THE SOCIETY
LEASED THIS STATION FOR FIFTEEN YEARS TO PETITIONER, RADIO STATION WOW,
INC., A NEBRASKA CORPORATION FORMED TO OPERATE THE STATION AS LESSEE. 
AFTER THE SOCIETY AND THE LESSEE HAD JOINTLY APPLIED TO THE FEDERAL
COMMUNICATIONS COMMISSION FOR CONSENT TO TRANSFER THE STATION LICENSE,
JOHNSON, THE RESPONDENT, A MEMBER OF THE SOCIETY, FILED THIS SUIT TO
HAVE THE LEASE AND THE ASSIGNMENT OF THE LICENSE SET ASIDE FOR FRAUD. 
WHILE THIS SUIT WAS PENDING, THE FEDERAL COMMUNICATIONS COMMISSION
CONSENTED TO ASSIGNMENT OF THE LICENSE, AND THE SOCIETY TRANSFERRED
BOTH THE STATION PROPERTIES AND THE LICENSE TO THE LESSEE.  THEREAFTER
THE SOCIETY ANSWERED THAT "THE FEDERAL COMMUNICATIONS COMMISSION  ...
HAS AND CONCEDES THAT IT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF
PLAINTIFF'S ACTION, EXCEPT JURISDICTION TO DETERMINE THE TRANSFER OF
THE LICENSE TO OPERATE SAID RADIO STATION, WHICH JURISDICTION AFTER
FULL AND COMPLETE SHOWING AND NOTWITHSTANDING OBJECTIONS FILED THERETO,
WAS EXERCISED IN THE APPROVAL OF THE TRANSFER OF SAID LICENSE TO THE
DEFENDANT RADIO STATION WOW, INC. AND FURTHER ORDER TO THE SOCIETY TO
EXECUTE AND PERFORM THE PROVISIONS OF SAID LEASE BY VIRTUE OF WHICH THE
POSSESSION OF SAID LEASE PROPERTY HAS NOW BEEN DELIVERED TO THE LESSEE,
ALL AS MORE PARTICULARLY HEREIN FOUND."  RESPONDENT'S REPLY ADMITTED
"THAT THE FEDERAL COMMUNICATIONS COMMISSION HAS AND CONCEDES THAT IT
HAS NO JURISDICTION OVER THE SUBJECT MATTER OF PLAINTIFF'S ACTION
EXCEPT JURISDICTION TO DETERMINE THE TRANSFER OF THE LICENSE TO OPERATE
SAID RADIO STATION."  THE TRIAL COURT FOUND NO FRAUD AND DISMISSED THE
SUIT. 

THE SUPREME COURT OF NEBRASKA, THREE JUDGES DISSENTING, REVERSED AND
ENTERED JUDGMENT FOR RESPONDENT, DIRECTING THAT THE LEASE AND LICENSE
BE SET ASIDE AND THAT THE ORIGINAL POSITION OF THE PARTIES BE RESTORED
AS NEARLY AS POSSIBLE.  144 NEB. 406, 13 N.W.2D 556.  THE JUDGMENT
FURTHER ORDERED THAT AN ACCOUNTING BE HAD OF THE OPERATION OF THE
STATION BY THE LESSEE SINCE IT CAME INTO ITS POSSESSION AND THAT THE
INCOME LESS OPERATING EXPENSES BE RETURNED TO THE SOCIETY.  FN1  ON
MOTIONS FOR REHEARING, THE PETITIONERS ASSERTED THAT ONLY THE FEDERAL
COMMUNICATIONS COMMISSION AND THE FEDERAL COURTS HAD JURISDICTION OVER
THE SUBJECT MATTER, NOT THE NEBRASKA COURTS.  THESE MOTIONS WERE DENIED
IN AN OPINION IN WHICH THE NEBRASKA SUPREME COURT STATED, "WE CONCLUDE
AT THE OUTSET THAT THE POWER TO LICENSE A RADIO STATION, OR TO
TRANSFER, ASSIGN OR ANNUL SUCH A LICENSE, IS WITHIN THE EXCLUSIVE
JURISDICTION OF THE FEDERAL COMMUNICATIONS COMMISSION....  THE EFFECT
OF OUR FORMER OPINION WAS TO VACATE THE LEASE OF THE RADIO STATION AND
TO ORDER A RETURN OF THE PROPERTY TO ITS FORMER STATUS, THE QUESTION OF
THE FEDERAL LICENSE BEING A QUESTION SOLELY FOR THE FEDERAL
COMMUNICATIONS COMMISSION.  OUR FORMER OPINION SHOULD BE SO
CONSTRUED."  THE CLAIM THAT THE NEBRASKA COURTS HAD NO JURISDICTION
OVER THE SUBJECT MATTER OF THE ACTION WAS THUS DEALT WITH: "THE FACT
THAT THE PROPERTY INVOLVED WAS USED IN A LICENSED BUSINESS WAS AN
INCIDENT TO THE SUIT ONLY.  THE ANSWER OF THE DEFENDANTS, HERETOFORE
QUOTED, SQUARELY CONTRADICTS THE POSITION THEY NOW ENDEAVOR TO ASSUME. 
THEIR POSITION IS UNSOUND ON ITS MERITS AND, IN ADDITION THERETO, IT
WAS ELIMINATED FROM THE CASE BY THE PLEADINGS THEY FILED IN THEIR OWN
BEHALF."  144 NEB. 432, 14 N.W.2D 666.  BECAUSE OF THE IMPORTANCE OF
THE CONTENTION THAT THE STATE COURT'S DECISION HAD INVADED THE DOMAIN
OF THE FEDERAL COMMUNICATIONS COMMISSION, WE GRANTED CERTIORARI.  IN
THE ORDER ALLOWING CERTIORARI WE DIRECTED ATTENTION TO THE QUESTIONS
WHETHER THE JUDGMENT IS A FINAL ONE AND WHETHER THE FEDERAL QUESTIONS
RAISED BY THE PETITION FOR CERTIORARI ARE PROPERLY PRESENTED BY THE
RECORD.  323 U.S. 705. 

SINCE ITS ESTABLISHMENT, IT HAS BEEN A MARKED CHARACTERISTIC OF THE
FEDERAL JUDICIAL SYSTEM NOT TO PERMIT AN APPEAL UNTIL A LITIGATION HAS
BEEN CONCLUDED IN THE COURT OF FIRST INSTANCE.  SEE HEIKE V. UNITED
STATES, 217 U.S. 423; COBBLEDICK V. UNITED STATES, 309 U.S. 323; CATLIN
V. UNITED STATES, 324 U.S. 229.  THIS REQUIREMENT HAS THE SUPPORT OF
CONSIDERATIONS GENERALLY APPLICABLE TO GOOD JUDICIAL ADMINISTRATION. 
IT AVOIDS THE MISCHIEF OF ECONOMIC WASTE AND OF DELAYED JUSTICE.  ONLY
IN VERY FEW SITUATIONS, WHERE INTERMEDIATE RULINGS MAY CARRY SERIOUS
PUBLIC CONSEQUENCES, HAS THERE BEEN A DEPARTURE FROM THIS REQUIREMENT
OF FINALITY FOR FEDERAL APPELLATE JURISDICTION.  THIS PREREQUISITE TO
REVIEW DERIVES ADDED FORCE WHEN THE JURISDICTION OF THIS COURT IS
INVOKED TO UPSET THE DECISION OF A STATE COURT.  HERE WE ARE IN THE
REALM OF POTENTIAL CONFLICT BETWEEN THE COURTS OF TWO DIFFERENT
GOVERNMENTS.  AND SO, EVER SINCE 1789, CONGRESS HAS GRANTED THIS COURT
THE POWER TO INTERVENE IN STATE LITIGATION ONLY AFTER "THE HIGHEST
COURT OF A STATE IN WHICH A DECISION IN THE SUIT COULD BE HAD" HAS
RENDERED A "FINAL JUDGMENT OR DECREE."  SEC. 237 OF THE JUDICIAL CODE,
28 U.S.C. SEC. 344(A).  THIS REQUIREMENT IS NOT ONE OF THOSE
TECHNICALITIES TO BE EASILY SCORNED.  IT IS AN IMPORTANT FACTOR IN THE
SMOOTH WORKING OF OUR FEDERAL SYSTEM. 

BUT EVEN SO CIRCUMSCRIBED A LEGAL CONCEPT AS APPEALABLE FINALITY HAS
A PENUMBRAL AREA.  THE PROBLEM OF DETERMINING WHEN A LITIGATION IS
CONCLUDED SO AS TO BE "FINAL" TO PERMIT REVIEW HERE ARISES IN THIS CASE
BECAUSE, AS HAS BEEN INDICATED, THE NEBRASKA SUPREME COURT NOT ONLY
DIRECTED A TRANSFER OF PROPERTY, BUT ALSO ORDERED AN ACCOUNTING OF
PROFITS FROM SUCH PROPERTY.  CONSIDERATIONS OF ENGLISH USAGE AS WELL AS
THOSE OF JUDICIAL POLICY WOULD READILY JUSTIFY AN INTERPRETATION OF
"FINAL JUDGMENT" SO AS TO PRECLUDE REVIEWABILITY HERE WHERE ANYTHING
FURTHER REMAINS TO BE DETERMINED BY A STATE COURT, NO MATTER HOW
DISSOCIATED FROM THE ONLY FEDERAL ISSUE THAT HAS FINALLY BEEN
ADJUDICATED BY THE HIGHEST COURT OF THE STATE.  SPECIFICALLY, IT MIGHT
WELL BE HELD THAT, EVEN THOUGH DEFINITIVE RULINGS ON QUESTIONS
OTHERWISE REVIEWABLE HERE HAVE BEEN MADE BELOW, SUCH RULINGS CANNOT BE
BROUGHT HERE FOR REVIEW IF THE STATE COURT CALLS FOR THE ASCERTAINMENT
BY A MASTER OR A LOWER STATE COURT OF AN ACCOUNT UPON WHICH A FURTHER
DECREE IS TO BE ENTERED.  SEE CALIFORNIA NATIONAL BANK V. STATELER, 171
U.S. 447, 449; BOSKEY, FINALITY OF STATE COURT JUDGMENTS UNDER THE
FEDERAL JUDICIAL CODE (1943) 43 COL. L. REV. 1002, 1009; ROBERTSON AND
KIRKHAM, JURISDICTION OF THE SUPREME COURT (1936) P. 58. 

UNFORTUNATELY, HOWEVER, THE COURSE OF OUR JURISDICTIONAL HISTORY HAS
NOT RUN AS SMOOTHLY AS SUCH A MECHANICAL RULE WOULD MAKE IT.  TO
ENFORCE IT NOW, OR TO PRONOUNCE IT FOR THE FUTURE, WOULD INVOLVE
DISREGARD OF AT LEAST TWO CONTROLLING PRECEDENTS, BOTH OF THEM
EXPRESSING THE VIEWS OF UNANIMOUS COURTS AND ONE OF WHICH HAS STOOD ON
OUR BOOKS FOR NEARLY A HUNDRED YEARS IN AN OPINION CARRYING THE
AUTHORITY, ESPECIALLY WEIGHTY IN SUCH MATTERS, OF CHIEF JUSTICE TANEY. 
LEAVING TO A FOOTNOTE THE DETAILS OF A SOMEWHAT SINUOUS STORY,  FN2  IT
SUFFICES TO SAY THAT FORGAY V. CONRAD, 6 HOW.  201, AND CARONDELET
CANAL CO. V. LOUISIANA, 233 U.S. 362, FOUND THE REQUIREMENT OF FINALITY
TO BE SATISFIED BY JUDGMENTS THE CHARACTERISTICS OF WHICH CANNOT BE
DISTINGUISHED FROM THOSE PRESENTED BY THE NEBRASKA DECREE.  IN SHORT,
THE RATIONALE OF THOSE CASES IS THAT A JUDGMENT DIRECTING IMMEDIATE
DELIVERY OF PHYSICAL PROPERTY IS REVIEWABLE AND IS TO BE DEEMED
DISSOCIATED FROM A PROVISION FOR AN ACCOUNTING EVEN THOUGH THAT IS
DECREED IN THE SAME ORDER.  IN EFFECT, SUCH A CONTROVERSY IS A MULTIPLE
LITIGATION ALLOWING REVIEW OF THE ADJUDICATION WHICH IS CONCLUDED
BECAUSE IT IS INDEPENDENT OF, AND UNAFFECTED BY, ANOTHER LITIGATION
WITH WHICH IT HAPPENS TO BE ENTANGLED.  COMPARE CLARK V. WILLIARD, 292
U.S. 112, 117-119; AND SEE NOTE (1934) 48 HARV. L. REV. 302. 

THE PRESUPPOSITION IN ALLOWING SUCH REVIEW IS THAT THE FEDERAL
QUESTIONS THAT COULD COME HERE HAVE BEEN ADJUDICATED BY THE STATE
COURT, AND THAT THE ACCOUNTING WHICH REMAINS TO BE TAKEN COULD NOT
REMOTELY GIVE RISE TO A FEDERAL QUESTION.  OF COURSE, WHERE THE
REMAINING LITIGATION MAY RAISE OTHER FEDERAL QUESTIONS THAT MAY LATER
COME HERE, SUCH AS IS TRUE OF EMINENT DOMAIN CASES, SEE GRAYS HARBOR
CO. V. COATS-FORDNEY CO., 243 U.S. 251, TO ALLOW REVIEW OF AN
INTERMEDIATE ADJUDICATION WOULD OFFEND THE DECISIVE OBJECTION TO
FRAGMENTARY REVIEWS.  SINCE, BY AWARDING AN EXECUTION, THE NEBRASKA
SUPREME COURT DIRECTED IMMEDIATE POSSESSION OF THE PROPERTY TO BE
TRANSFERRED, THE CASE COMES SQUARELY WITHIN FORGAY V. CONRAD, SUPRA,
AND CARONDELET CANAL CO. V. LOUISIANA, SUPRA, AND THE CHALLENGE TO OUR
JURISDICTION CANNOT BE SUSTAINED. 

THIS BRINGS US TO CONSIDER WHAT FEDERAL QUESTIONS ARE HERE.  THE
COURT BELOW DECREED THE TRANSFER OF PROPERTY USED AS A RADIO STATION. 
IT CONCEDED THAT IT HAD NO JURISDICTION OVER THE TRANSFER OF THE
LICENSE UNDER WHICH WOW WAS OPERATING.  THAT IS A MATTER WHICH CONGRESS
HAS PUT IN THE KEEPING OF THE FEDERAL COMMUNICATIONS COMMISSION. 
PETITIONERS CLAIM THAT THE COURT'S DECREE IN EFFECT INVOLVES AN
EXERCISE OF THE VERY AUTHORITY WHICH THE COURT DISAVOWED.  THIS
PRESENTS A FEDERAL QUESTION WHICH WAS DULY MADE BELOW, AND WE MUST
CONSIDER IT. 

BUT IT IS NOT OPEN TO US TO CONSIDER INDEPENDENTLY THE CLAIM THAT THE
FEDERAL COMMUNICATIONS ACT HAS WITHDRAWN FROM THE STATE COURT
JURISDICTION OVER THE PHYSICAL PROPERTIES OF THE STATION AND GIVEN IT
TO THE FEDERAL COMMUNICATIONS COMMISSION.  THE SOCIETY'S ANSWER
ADMITTED THAT THIS CONTROVERSY WAS OUTSIDE THE JURISDICTION OF THE
COMMISSION EXCEPT AS IT RELATED TO THE TRANSFER OF THE LICENSE, AND
RESPONDENT JOINED IN THIS VIEW.  ONLY AFTER THE NEBRASKA SUPREME
COURT'S ORIGINAL OPINION DID PETITIONERS, BY MOTIONS TO DISMISS THE
SUIT AND FOR REHEARING, CLAIM THAT THE NEBRASKA COURTS WERE WHOLLY
WITHOUT JURISDICTION OVER THE CONTROVERSY.  IN ITS OPINION ON REHEARING
THE NEBRASKA SUPREME COURT REJECTED THIS CLAIM AS "CONTRARY TO THE
PLEADINGS FILED" IN THE TRIAL COURT, AND ALSO DENIED IT ON ITS MERITS. 
"THE ANSWER OF THE DEFENDANTS, HERETOFORE QUOTED," THAT COURT WROTE,
"SQUARELY CONTRADICTS THE POSITION THEY NOW ENDEAVOR TO ASSUME.  THEIR
POSITION IS UNSOUND ON ITS MERITS AND, IN ADDITION THERETO, IT WAS
ELIMINATED FROM THE CASE BY THE PLEADINGS THEY FILED IN THEIR OWN
BEHALF."  QUESTIONS FIRST PRESENTED TO THE HIGHEST STATE COURT ON A
PETITION FOR REHEARING COME TOO LATE FOR CONSIDERATION HERE, UNLESS THE
STATE COURT EXERTED ITS JURISDICTION IN SUCH A WAY THAT THE CASE COULD
HAVE BEEN BROUGHT HERE HAD THE QUESTIONS BEEN RAISED PRIOR TO THE
ORIGINAL DISPOSITION.  SIMMERMAN V. NEBRASKA, 116 U.S. 54; GODCHAUX CO.
V. ESTOPINAL, 251 U.S. 179; AMERICAN SURETY CO. V. BALDWIN, 287 U.S.
156.  HERE THE NEBRASKA SUPREME COURT HELD THAT THE FEDERAL QUESTION
HAD DROPPED OUT AS A MATTER OF PLEADING AND ALSO DENIED ITS MERITS. 

THIS BRINGS THE SITUATION CLEARLY WITHIN THE SETTLED RULE WHEREBY
THIS COURT WILL NOT REVIEW A STATE COURT DECISION RESTING ON AN
ADEQUATE AND INDEPENDENT NON-FEDERAL GROUND EVEN THOUGH THE STATE COURT
MAY HAVE ALSO SUMMONED TO ITS SUPPORT AN ERRONEOUS VIEW OF FEDERAL
LAW.  "WHERE THE JUDGMENT OF THE STATE COURT RESTS ON TWO GROUNDS, ONE
INVOLVING A FEDERAL QUESTION AND THE OTHER NOT  ...  AND THE GROUND
INDEPENDENT OF A FEDERAL QUESTION IS SUFFICIENT IN ITSELF TO SUSTAIN
IT, THIS COURT WILL NOT TAKE JURISDICTION."  LYNCH V. NEW YORK, 293
U.S. 52, 54-55.  ONE OF THE PETITIONERS, RADIO STATION WOW, INC., SEEKS
TO AVOID THE FORCE OF THIS RULE BY SUGGESTING THAT ITS ANSWER DID NOT
MAKE THE CONCESSION AS TO THE LIMITED JURISDICTION OF THE FEDERAL
COMMUNICATIONS COMMISSION UPON WHICH THE NEBRASKA COURT RELIED.  BUT IT
IS NOT FOR US TO CONSIDER THE CORRECTNESS OF THE NON-FEDERAL GROUND
UNLESS IT IS AN OBVIOUS SUBTERFUGE TO EVADE CONSIDERATION OF A FEDERAL
ISSUE.  SEE NEILSON V. LAGOW, 12 HOW.  98, 109-111.  IT MAY BE NEBRASKA
PRACTICE THAT THE ANSWER OF ONE DEFENDANT BINDS THE OTHERS, OR THAT
FAILURE TO RAISE A QUESTION IN THE PLEADINGS PRECLUDES ITS
CONSIDERATION ON REHEARING.  THESE ARE MATTERS OF STATE LAW AND NOT OUR
CONCERN.  CF. FAIR HAVEN R. CO. V. NEW HAVEN, 203 U.S. 379, 386.    THE
FEDERAL QUESTION THAT REMAINS IS WHETHER, ALTHOUGH THE NEBRASKA COURT
CLEARLY RECOGNIZED THAT THE POWER TO VACATE A LICENSE AND TO AUTHORIZE
ITS TRANSFER LIES EXCLUSIVELY WITH THE FEDERAL COMMUNICATIONS
COMMISSION, ITS DECREE IN EFFECT IS INCONSISTENT WITH SUCH
RECOGNITION.  THIS IS URGED ON TWO GROUNDS.  IT IS ASSERTED THAT THE
NEBRASKA SUPREME COURT, BY ORDERING THE TRANSFER OF THE LICENSED
FACILITIES FROM RADIO STATION WOW, INC. TO THE SOCIETY ALTHOUGH NOT
HAVING POWER TO DIRECT THE TRANSFER OF THE LICENSE, SEVERED THE
LICENSED FACILITIES FROM THE LICENSE AND THEREFORE NULLIFIED THE
LICENSE.  SECONDLY, IT IS URGED THAT BY ORDERING THE PARTIES "TO DO ALL
THINGS NECESSARY" TO SECURE A RETURN OF THE LICENSE TO THE DEFRAUDED
SOCIETY, THE STATE COURT INVADED THE COMMISSION'S FUNCTION. 

THE JUDGMENT, FOLLOWING THE ORIGINAL OPINION, ORDERED THAT "THE
TRANSFER OF THE LICENSE TO OPERATE THE STATION BE VACATED AND SET
ASIDE."  ON REHEARING, THE COURT MADE IT QUITE PLAIN THAT IT WAS WITHIN
THE EXCLUSIVE JURISDICTION OF THE COMMUNICATIONS COMMISSION TO VACATE
RADIO LICENSES AND DECLARED THAT ITS FORMER OPINION SHOULD BE SO
CONSTRUED.  WHILE IT DID NOT FORMALLY MODIFY ITS JUDGMENT, IT IS
REASONABLE TO ASSUME THAT THE VIEW WHICH IT UNAMBIGUOUSLY REJECTED IN
ITS OPINION IT DID NOT MEAN TO ASSERT THROUGH ITS JUDGMENT.  HOTEL
EMPLOYEES' LOCAL V. BOARD, 315 U.S. 437, 440-441; BURKE V. UNIQUE
PRINTING CO., 63 NEB. 264, 88 N.W. 488.  BUT IN MATTERS OF POTENTIAL
CONFLICT BETWEEN STATE AND FEDERAL AUTHORITIES, AVOIDANCE OF NEEDLESS
FRICTION NO LESS THAN GOOD DRAFTSMANSHIP COUNSELS EXPLICIT AND NOT
MERELY ARGUMENTATIVE RESTRICTION OF A STATE COURT'S JUDGMENT WITHIN ITS
POWERS. 

IN ANY EVENT, WE THINK THE COURT WENT OUTSIDE ITS BOUNDS WHEN IT
ORDERED THE PARTIES "TO DO ALL THINGS NECESSARY" TO SECURE A RETURN OF
THE LICENSE.  PLAINLY THAT REQUIRES THE SOCIETY TO ASK THE COMMISSION
FOR A RETRANSFER OF THE LICENSE TO IT AND REQUIRES WOW NOT TO OPPOSE
SUCH TRANSFER.  THE UNITED STATES, IN A BRIEF FILED AT OUR REQUEST,
SUGGESTS THAT THIS PROVISION OF THE DECREE WOULD PROBABLY ALSO
DISQUALIFY WOW FROM "APPLYING FOR A NEW LICENSE TO OPERATE A RADIO
STATION IN OMAHA ON THE SAME FREQUENCY, SHOULD IT BECOME EQUIPPED TO DO
SO."  TO BE SURE, THE COMMUNICATIONS COMMISSION'S POWER OF GRANTING,
REVOKING AND TRANSFERRING LICENSES INVOLVES PROPER APPLICATION OF THOSE
CRITERIA THAT DETERMINE "PUBLIC CONVENIENCE, INTEREST, OR NECESSITY." 
SEC. 307(A), 48 STAT. 1064, 1083, 47 U.S.C. SEC. 307(A).  BUT INSOFAR
AS THE NEBRASKA DECREE ORDERS THE PARTIES "TO DO ALL THINGS NECESSARY"
TO SECURE THE RETURN OF THE LICENSE, IT HAMPERS THE FREEDOM OF THE
SOCIETY NOT TO CONTINUE IN BROADCASTING AND TO RESTRICT ITSELF, AS IT
PROPERLY MAY, TO ITS INSURANCE BUSINESS.  EQUALLY DOES IT PREVENT WOW
FROM OPPOSING A RETURN TO THE SOCIETY, OR, AS THE UNITED STATES
SUGGESTS, FROM SEEKING ANOTHER LICENSE OF ITS OWN.  THESE ARE
RESTRICTIONS NOT MERELY UPON THE PRIVATE RIGHTS OF PARTIES AS TO WHOM A
STATE COURT MAY MAKE APPROPRIATE FINDINGS OF FRAUD.  THEY ARE
RESTRICTIONS UPON THE LICENSING SYSTEM WHICH CONGRESS ESTABLISHED.  IT
DISREGARDS PRACTICALITIES TO DENY THAT, BY CONTROLLING THE CONDUCT OF
PARTIES BEFORE THE COMMUNICATIONS COMMISSION, THE COURT BELOW REACHED
BEYOND THE IMMEDIATE CONTROVERSY AND INTO MATTERS THAT DO NOT BELONG TO
IT. 

THE MOST TROUBLESOME QUESTION RAISED BY THIS CASE REMAINS.  WHILE THE
DECREE OF THE STATE COURT CONCERNING THE TRANSFER OF THE LEASEHOLD IS,
IN VIEW OF THE PLEADINGS, NOT HERE AS AN INDEPENDENT QUESTION, DUE
CONSIDERATION OF THE FEDERAL QUESTION RELATING TO THE TRANSFER OF THE
LICENSE MAKES IT PROPER TO CONSIDER THE BEARING OF A DECREE ORDERING AN
IMMEDIATE TRANSFER OF THE LEASEHOLD UPON THE STATUS OF THE RADIO
LICENSE.  A PROPER REGARD FOR THE IMPLICATIONS OF THE POLICY THAT
PERMEATES THE COMMUNICATIONS ACT MAKES DISPOSITION OF LICENSED
FACILITIES PRIOR TO ACTION BY THE COMMUNICATIONS COMMISSION A
SUBSIDIARY ISSUE TO THE LICENSE QUESTION.  WE HAVE NO DOUBT OF THE
POWER OF THE NEBRASKA COURT TO ADJUDICATE, AND CONCLUSIVELY, THE CLAIM
OF FRAUD IN THE TRANSFER OF THE STATION BY THE SOCIETY TO WOW AND UPON
FINDING FRAUD TO DIRECT A RECONVEYANCE OF THE LEASE TO THE SOCIETY. 
AND THIS, EVEN THOUGH THE PROPERTY CONSISTS OF LICENSED FACILITIES AND
THE SOCIETY CHOOSES NOT TO APPLY FOR RETRANSFER OF THE RADIO LICENSE TO
IT, OR THE COMMISSION, UPON SUCH APPLICATION, REFUSES THE RETRANSFER. 
THE RESULT MAY WELL BE THE TERMINATION OF A BROADCASTING STATION.  THE
COMMUNICATIONS ACT DOES NOT EXPLICITLY DEAL WITH THIS PROBLEM, AND WE
FIND NOTHING IN ITS INTERSTICES THAT DISLODGES THE POWER OF THE STATES
TO DEAL WITH FRAUD MERELY BECAUSE LICENSED FACILITIES ARE INVOLVED. 
THE "PUBLIC INTEREST" WITH WHICH THE COMMISSION IS CHARGED IS THAT
INVOLVED IN GRANTING LICENSES.  SAFEGUARDING OF THAT INTEREST CAN
HARDLY IMPLY THAT THE INTEREST OF STATES IN ENFORCING THEIR LAWS
AGAINST FRAUD HAVE BEEN NULLIFIED INSOFAR AS LICENSED FACILITIES MAY BE
THE INSTRUMENTS OF FRAUD. 

ON THE OTHER HAND, IF THE STATE'S POWER OVER FRAUD CAN BE EFFECTIVELY
RESPECTED WHILE AT THE SAME TIME REASONABLE OPPORTUNITY IS AFFORDED FOR
THE PROTECTION OF THAT PUBLIC INTEREST WHICH LED TO THE GRANTING OF A
LICENSE, THE PRINCIPLE OF FAIR ACCOMMODATION BETWEEN STATE AND FEDERAL
AUTHORITY, WHERE THE POWERS OF THE TWO INTERSECT, SHOULD BE OBSERVED. 
SEVERANCE OF THE LICENSED FACILITIES FROM THE LICENSE SO PRECIPITOUSLY
THAT THE FEDERAL COMMUNICATIONS COMMISSION IS DEPRIVED OF THE
OPPORTUNITY OF ENABLING THE TWO TO BE KEPT TOGETHER NEEDLESSLY DISABLES
THE COMMISSION FROM PROTECTING THE PUBLIC INTEREST COMMITTED TO ITS
CHARGE.  THIS PRESENTS A PRACTICAL AND NOT A HYPOTHETICAL SITUATION. 
TO CARRY OUT ABRUPTLY A STATE DECREE SEPARATING LICENSED FACILITIES
FROM THE LICENSE DEPRIVES THE PUBLIC OF THOSE ADVANTAGES OF
BROADCASTING WHICH PRESUMABLY LED THE COMMISSION TO GRANT A LICENSE. 
TO BE SURE, SUCH A LICENSE IS MERELY A PERMIT TO SERVE THE PUBLIC AND
NOT A DUTY TO DO SO.  THEREFORE, AS WE HAVE CONCLUDED, THE STATE HAS
NOT BEEN DEPRIVED BY FEDERAL LEGISLATION OF THE PRACTICAL POWER TO
TERMINATE THE BROADCASTING SERVICE BY A PROPER ADJUDICATION SEPARATING
THE PHYSICAL PROPERTY FROM THE LICENSE.  WE THINK THAT STATE POWER IS
AMPLY RESPECTED IF IT IS QUALIFIED MERELY TO THE EXTENT OF REQUIRING IT
TO WITHHOLD EXECUTION OF THAT PORTION OF ITS DECREE REQUIRING
RETRANSFER OF THE PHYSICAL PROPERTIES UNTIL STEPS ARE ORDERED TO BE
TAKEN, WITH ALL DELIBERATE SPEED, TO ENABLE THE COMMISSION TO DEAL WITH
NEW APPLICATIONS IN CONNECTION WITH THE STATION.  OF COURSE, THE
QUESTION OF FRAUD ADJUDICATED BY THE STATE COURT WILL NO LONGER BE OPEN
INSOFAR AS IT BEARS UPON THE RELIABILITY AS LICENSEE OF ANY OF THE
PARTIES. 

NEW SITUATIONS CALL FOR NEW ADAPTATION OF JUDICIAL REMEDIES.  WE HAVE
HAD OCCASION TO LIMIT THE CONCEDED JURISDICTION OF THE FEDERAL COURTS
IN ORDER TO GIVE STATE COURTS OPPORTUNITY TO PASS AUTHORITATIVELY ON
STATE ISSUES INVOLVED IN FEDERAL LITIGATION.  SEE, E.G., SPECTOR MOTOR
CO. V. MCLAUGHLIN, 323 U.S. 101.  IT WILL GIVE FULL PLAY BOTH TO THE
POWERS THAT BELONG TO THE STATES AND TO THOSE THAT ARE ENTRUSTED TO THE
FEDERAL COMMUNICATIONS COMMISSION, WHERE THE TWO ARE INTERTWINED AS
THEY ARE HERE, TO ENFORCE THE ACCOMMODATION WE HAVE FORMULATED. 

ACCORDINGLY, THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 

FN1  THE JUDGMENT DIRECTED "THAT SAID JUDGMENT OF THE DISTRICT COURT
BE, AND HEREBY IS, REVERSED AND CAUSE IS REMANDED, WITH DIRECTIONS THAT
THE LEASE TO THE STATION, THE LEASE TO THE SPACE OCCUPIED BY THE
STATION AND THE TRANSFER OF THE LICENSE TO OPERATE THE STATION BE
VACATED AND SET ASIDE; THAT THE $25,000 OF ACCOUNTS TURNED OVER BY THE
SOCIETY TO LESSEE BE RETURNED; THAT IN ACCOUNTING BE HAD OF THE
OPERATION OF THE STATION BY LESSEE SINCE IT TOOK POSSESSION THEREOF ON
JANUARY 14, 1943, AND THAT THE INCOME THEREOF LESS OPERATING EXPENSES
BE RETURNED TO THE SOCIETY; THAT THE LICENSE TO OPERATE THE STATION BE
RETURNED AND THAT LESSEE BE DIRECTED TO DO ALL THINGS NECESSARY FOR
THAT PURPOSE; THAT GENERALLY EVERYTHING BE DONE TO RESTORE THE PARTIES
TO THEIR ORIGINAL POSITION PRIOR TO THE ENTERING INTO THE LEASE; THAT
ALL EXPENSES HAD BY THE SOCIETY IN CONNECTION WITH THE TRANSFER OF THE
STATION AND LICENSE TO THE LESSEE AND THE EXPENSE HAD IN CONNECTION
WITH RETURNING THE SAME TO THE SOCIETY PURSUANT HERETO ARE TO BE PAID
BY THE LESSEE.  IT IS FURTHER ORDERED AND ADJUDGED THAT ALL COSTS, BOTH
IN THIS COURT AND IN THE DISTRICT COURT SHALL BE PAID BY THE
DEFENDANTS, EXCEPT THE WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY,
COSTS IN THIS COURT BEING TAXED AT $  ....; FOR ALL OF WHICH EXECUTION
IS HEREBY AWARDED, AND THAT A MANDATE ISSUE ACCORDINGLY." 

FN2  MOST OF THE CASES CITED WHICH INVOLVE AN ACCOUNTING HAVE COME
FROM FEDERAL COURTS.  IN THIS CATEGORY ARE FORGAY V. CONRAD, 6 HOW. 
201; THOMSON V. DEAN, 7 WALL.  342; WINTHROP IRON CO. V. MEEKER, 109
U.S. 180; KEYSTONE IRON CO. V. MARTIN, 132 U.S. 91; MCGOURKEY V. TOLEDO
& OHIO R. CO., 146 U.S. 536; GULF REFINING CO. V. UNITED STATES, 269
U.S. 125. 

IN THE FORGAY CASE THE COURT BELOW SET ASIDE A CONVEYANCE OF LAND AND
SLAVES AND ORDERED A MASTER TO TAKE AN ACCOUNTING OF THE RENTS AND
PROFITS.  THIS COURT HELD THE DECREE TO BE APPEALABLE SINCE IMMEDIATE
DELIVERY OF THE PROPERTY WAS ORDERED ALTHOUGH THE DECREE WAS "NOT
FINAL, IN THE STRICT, TECHNICAL SENSE OF THAT TERM."  THE COURT SAID OF
THE LOWER COURT JUDGMENT THAT "THE BILL IS RETAINED MERELY FOR THE
PURPOSE OF ADJUSTING THE ACCOUNTS REFERRED TO THE MASTER.  IN ALL OTHER
RESPECTS, THE WHOLE OF THE MATTERS BROUGHT INTO CONTROVERSY BY THE BILL
ARE FINALLY DISPOSED OF AS TO ALL OF THE DEFENDANTS."  6 HOW.  201,
204.  IT WAS SUGGESTED THAT IF APPELLANTS HAD TO WAIT, THEY WOULD BE
SUBJECTED TO IRREMEDIABLE INJURY, FOR EXECUTION HAD BEEN AWARDED.  ALSO
HELD FINAL WAS THE DECREE IN THOMSON V. DEAN, SUPRA, WHERE THE COURT
ORDERED IMMEDIATE TRANSFER OF STOCK AND AN ACCOUNTING TO DETERMINE THE
AMOUNTS PAID AND TO BE PAID AND THE DIVIDENDS ACCRUED.  IN GULF
REFINING CO. V. UNITED STATES, SUPRA, A JUDGMENT WAS HELD TO BE FINAL
WHERE THE ORIGINAL DECREES ENJOINED DEFENDANTS FROM TAKING OIL FROM
GOVERNMENT PROPERTY AND CONFIRMED AN ACCOUNTING TO JANUARY 1, 1918,
ALTHOUGH THE DECREE APPEALED FROM ORDERED A FURTHER ACCOUNTING FOR OIL
EXTRACTED PENDENTE LITE.  THE COURT OBSERVED THAT THE DECREES WERE
FINAL FOR THE PURPOSE OF THE ORIGINAL APPEALS.  ALL OF THESE CASES RELY
ON THE FACT THAT THERE HAD BEEN A CONCLUSIVE ADJUDICATION OF THE RIGHTS
AND LIABILITIES OF THE PARTIES WITH IMMEDIATE DELIVERY OF POSSESSION OF
THE SUBJECT MATTER OF THE SUIT.  THIS CONSIDERATION WAS EMPHASIZED IN
GRANT V. PHOENIX INS. CO., 106 U.S. 429, 431-432, AND IN COLLINS V.
MILLER, 252 U.S. 364, 371. 

ANOTHER LINE OF CASES STARTS WITH WINTHROP IRON CO. V. MEEKER, SUPRA,
WHERE A DECREE WAS HELD FINAL, ALTHOUGH AN ACCOUNTING WAS ORDERED,
BECAUSE NO ACCOUNTING HAD BEEN PRAYED FOR IN THE BILL.  THIS
UNSUBSTANTIAL DISTINCTION WAS SEIZED UPON IN KEYSTONE IRON CO. V.
MARTIN, SUPRA, AND IN MCGOURKEY V. TOLEDO & OHIO R. CO., SUPRA, TO HOLD
NOT FINAL DECREES IN CASES WHERE AN ACCOUNTING HAD BEEN SOUGHT. 

THE CASES FROM STATE COURTS ARE LESS NUMEROUS.  CALIFORNIA NATIONAL
BANK V. STATELER, SUPRA, STATED BROADLY THAT A JUDGMENT REMANDING FOR
AN ACCOUNTING IS NOT FINAL.  IN THAT CASE, AN INTERVENING PARTY,
APPOINTED PURSUANT TO STATE LAW AS AGENT FOR BANK STOCKHOLDERS, SECURED
AN ORDER DIRECTING THAT MONEY BE TURNED OVER TO HIM LESS THE HOLDER'S
COSTS, DISBURSEMENTS AND ATTORNEY'S FEES.  IN ADDITION, IF IT SHOULD BE
FOUND THAT THE HOLDER HAD RECEIVED CERTAIN STOCK AS ALLEGED THEN THE
STOCK ALSO SHOULD BE TURNED OVER.  BUT THERE WAS NO IMMEDIATE DELIVERY
OF ANYTHING SINCE THE AMOUNT OF MONEY TO BE TURNED OVER REMAINED TO BE
ASCERTAINED AS DID THE EXISTENCE OF THE STOCK.  AND IN SAND SPRINGS
HOME V. NAHARKEY, 299 U.S. 588, THE COURT DENIED CERTIORARI "FOR THE
WANT OF A FINAL JUDGMENT" IN A CASE WHERE THE PLAINTIFF'S RIGHT TO AN
UNDIVIDED ONE-SIXTH INTEREST IN LAND WAS DECREED PLUS AN ACCOUNTING FOR
PROFITS FROM THE GAS TAKEN OUT OF THE LAND.  IN THE ABSENCE OF A
PARTITION, THERE COULD OF COURSE BE NO DELIVERY OF THE PROPERTY
ITSELF. 

OPPOSED TO THE GENERAL OBSERVATIONS IN THE STATELER CASE IS THE
SQUARE RULING IN CARONDELET CANAL CO. V. LOUISIANA, 233 U.S. 362.  THE
STATE SUPREME COURT ORDERED THAT JUDGMENT BE ENTERED REQUIRING DELIVERY
OF A CANAL TO LOUISIANA.  CERTAIN CLAIMS WITH RESPECT TO A SMALL
ADDITIONAL PLOT OF GROUND WERE RESERVED AND AN ACCOUNTING OF RECEIPTS
AND DISBURSEMENTS IN THE MANAGEMENT OF THE PROPERTY WAS ORDERED.  THIS
COURT DENIED A MOTION TO DISMISS FOR WANT OF A FINAL JUDGMENT.  IT
NOTED THAT THE DECREE REQUIRED IMMEDIATE DELIVERY OF THE PROPERTY TO
THE STATE SO THAT THE DECREE POSSESSED DEFINITENESS AS TO THE MATTER
DECIDED.  "IN THE CASE AT BAR THERE IS DISTINCT AND EXPLICIT FINALITY
AND THE FURTHER PROCEEDINGS ARE DIRECTED TO APPLY ONLY TO THE
'QUESTIONS RESERVED.'"  233 U.S. 362, 372.    MR. JUSTICE DOUGLAS
CONCURS IN THE RESULT. 

MR. JUSTICE ROBERTS IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON, DISSENTING. 

I AM UNABLE TO AGREE WITH THE COURT'S DISPOSITION OF THIS CASE AND
WILL INDICATE BRIEFLY THE REASON. 

PETITIONER IS INCORPORATED UNDER THE LAWS OF NEBRASKA AND OPERATES A
RADIO STATION OWNED BY THE WOODMEN OF THE WORLD, AN INSURANCE SOCIETY
ALSO ORGANIZED UNDER THE LAWS OF NEBRASKA.  IT IS CLEAR THAT THE STATE
OF NEBRASKA HAS PLENARY POWER OVER THE INTERNAL AFFAIRS OF BOTH OF
THESE CORPORATIONS. 

THE WOODMEN OF THE WORLD, IN ADDITION TO ITS INSURANCE BUSINESS, WENT
INTO THE RADIO BUSINESS THROUGH RADIO STATION WOW.  IT BECAME INVOLVED
IN CONTROVERSIES AND EVENTUALLY DECIDED THAT IT OUGHT TO GET OUT OF THE
RADIO OPERATION. 

FROM 1923 TO 1928, IT HAD CARRIED THE RADIO STATION AT A LOSS BUT ITS
NET AVERAGE EARNINGS FROM 1936 TO 1942 WERE $194,724.14 PER YEAR.  THE
PROPERTY AND FACILITIES OF THE CORPORATION WERE LEASED TO A NEW
CORPORATION IN 1942 FOR $74,000.00 PER YEAR.  THE NEW CORPORATION
CONSISTED OF ORGANIZERS WHOM THE COURT FOUND SUSTAINED SUCH A RELATION
TO THE PRESIDENT OF THE INSURANCE COMPANY WHO MANAGED THE NEGOTIATIONS
ON ITS BEHALF THAT THE TRANSFER CONSTITUTED A CONSTRUCTIVE FRAUD ON
POLICYHOLDERS.  IT ORDERED THAT THE TRANSACTION BE UNDONE AND COMPLETE
RESTITUTION BE MADE.  I TAKE IT THAT THIS JUDGMENT WAS FULLY WITHIN THE
COMPETENCE OF THE STATE. 

MEANWHILE, THE TRANSFEREES HAD OBTAINED APPROVAL OF THE FEDERAL
COMMUNICATIONS COMMISSION OF THE TRANSFER OF THE LICENSE TO THEM. 
BECAUSE OF THIS, IT IS CLAIMED THAT IN SOME WAY THE POWER OF THE STATE
TO UNDO THIS TRANSACTION IS LIMITED.  CERTAINLY NO POWER HAS BEEN
CONFERRED ON THE FEDERAL COMMUNICATIONS COMMISSION TO HEAR, TRY OR
DETERMINE THE CASE OF FRAUD BETWEEN NEBRASKA STOCKHOLDERS AND THE
OFFICERS OF NEBRASKA CORPORATIONS.  THE COMMISSION HAS, OF COURSE,
POWERS TO LOOK AFTER THE PUBLIC INTEREST IN THE TRANSFER OF STATIONS. 

THERE IS POSSIBILITY OF CONFLICT BETWEEN THE JUDGMENT RENDERED BY THE
STATE COURT OF NEBRASKA AND THE FEDERAL COMMUNICATIONS COMMISSION AND
THIS POSSIBILITY OF CONFLICT LEADS TO THE DECISION OF THE COURT TODAY. 
THAT CONFLICT CAN OCCUR ONLY IF THE FEDERAL COMMUNICATIONS COMMISSION
SHALL HOLD THAT THE FEDERAL PUBLIC INTEREST REQUIRES THIS RADIO STATION
TO BE KEPT IN THE HANDS OF THOSE WHO ARE ADJUDGED TO BE GUILTY OF FRAUD
AND THAT THE PUBLIC INTEREST CANNOT BE SERVED BY THOSE WHO HAVE BEEN
ADJUDGED TO HAVE BEEN VICTIMS OF THAT FRAUD ALTHOUGH THEY HAD OPERATED
THE STATION FOR MANY YEARS WITH SUCCESS AND WITHOUT ANY QUESTION AS TO
THE PUBLIC INTEREST.  IF THE COMMUNICATIONS COMMISSION SHOULD RENDER
SUCH A DECISION BY REFUSING TO RETRANSFER THE LICENSE IN ACCORDANCE
WITH THE JUDGMENT WE WOULD THEN HAVE A QUESTION AS TO THE FAITH AND
CREDIT DUE THE STATE COURT JUDGMENT AND ITS EFFECTS IN AN
ADMINISTRATIVE TRIBUNAL.  I WOULD DEAL WITH THAT SORT OF QUESTION NOT
HYPOTHETICALLY, BUT WHEN IT ARISES AND UPON THE RECORD WHICH IS MADE
BEFORE THE COMMUNICATIONS COMMISSION. 

BUT EVEN IF THE COMMISSION SHOULD DECIDE THAT THE FEDERAL INTEREST
REQUIRES THIS STATION TO BE OPERATED BY THOSE WHO HAVE OBTAINED IT BY
CONSTRUCTIVE FRAUD, I THINK THE JUDGMENT OF THE STATE COURT OF NEBRASKA
WOULD STILL BE GOOD.  IT HAS THE POWER NOT ONLY TO COMPEL RESTITUTION
OF PROPERTY OBTAINED FROM ITS CORPORATIONS IN VIOLATION OF ITS LAWS BUT
IF BY FEDERAL PROCEEDINGS OR OTHERWISE THE WRONGDOERS HAVE PUT SOME
PART OF THE VALUE OF THIS STATION BEYOND THEIR POWER TO RECAPTURE, THE
STATE HAS THE RIGHT TO COMPEL THEM TO ACCOUNT FOR ITS VALUE.  THE
STATE, IT SEEMS TO ME, HAS THE RIGHT TO STRIP THE WRONGDOERS OF EVERY
FRUIT OF THE WRONG, INCLUDING THE VALUE OF THE FEDERAL LICENSE, EVEN IF
THE LICENSE ITSELF CANNOT BE OBTAINED. 

FOR THESE REASONS, I WOULD AFFIRM THE JUDGMENT OF THE NEBRASKA COURTS
AND LEAVE THE PROBLEM OF CONFLICT TO BE DEALT WITH WHEN AND IF IT
ARISES. 
..END :






BRIDGES V. WIXON, 326 U.S. 135 


NO. 788.  ARGUED APRIL 2, 3, 1945.  - DECIDED JUNE 18, 1945.  - 144 F.2D
927, REVERSED. 


1.  THE ORDER FOR THE DEPORTATION OF THE PETITIONER - ISSUED UNDER THE
ACT OF JUNE 28, 1940, PROVIDING FOR THE DEPORTATION OF ANY ALIEN WHO
WAS AT THE TIME OF HIS ENTRY INTO THE UNITED STATES, OR HAS BEEN AT ANY
TIME THEREAFTER, A MEMBER OF OR AFFILIATED WITH AN ORGANIZATION THAT
BELIEVES IN, ADVISES, ADVOCATES OR TEACHES THE OVERTHROW OF THIS
GOVERNMENT BY FORCE OR VIOLENCE - RESTS UPON A MISCONSTRUCTION OF THE
TERM "AFFILIATION" AS USED IN THE ACT, AND UPON AN UNFAIR HEARING ON
THE QUESTION OF HIS MEMBERSHIP IN THE COMMUNIST PARTY, WHEREFORE HIS
DETENTION UNDER THE WARRANT OF DEPORTATION IS UNLAWFUL.  PP. 140, 156. 

2.  THE ACT OR ACTS TENDING TO PROVE "AFFILIATION," WITHIN THE
MEANING OF THE DEPORTATION STATUTE, MUST BE OF THAT QUALITY WHICH
INDICATES AN ADHERENCE TO OR A FURTHERANCE OF THE PURPOSES OR
OBJECTIVES OF THE PROSCRIBED ORGANIZATION AS DISTINGUISHED FROM MERE
COOPERATION WITH IT IN LAWFUL ACTIVITIES.  THE ACT OR ACTS MUST
EVIDENCE A WORKING ALLIANCE TO BRING THE PROGRAM TO FRUITION.  P. 143. 

3.  FREEDOM OF SPEECH AND OF THE PRESS IS ACCORDED ALIENS RESIDING IN
THIS COUNTRY.  P. 148. 

4.  SO FAR AS THE RECORD SHOWS THE LITERATURE PUBLISHED BY THE
PETITIONER, THE UTTERANCES MADE BY HIM WERE ENTITLED TO THE PROTECTION
OF THE FREEDOM OF SPEECH AND OF THE PRESS.  THEY REVEALED A MILITANT
ADVOCACY OF THE CAUSE OF TRADE UNIONISM, BUT DID NOT TEACH OR ADVOCATE
OR ADVISE THE SUBVERSIVE CONDUCT CONDEMNED BY THE STATUTE.  P. 148. 

5.  DETENTION UNDER AN INVALID ORDER OF DEPORTATION IS ESTABLISHED
WHERE AN ALIEN IS ORDERED DEPORTED FOR REASONS NOT SPECIFIED BY
CONGRESS.  P. 149. 

6.  UPON THE RECORD IN THIS CASE, THE FINDING OF "AFFILIATION" WAS
BASED ON TOO LOOSE A MEANING OF THAT TERM.  P. 149. 

7.  A PERSON UNDER INVESTIGATION WITH A VIEW TO DEPORTATION IS
LEGALLY ENTITLED TO INSIST UPON THE OBSERVANCE OF RULES PROMULGATED
PURSUANT TO LAW BY THE AGENCY ENTRUSTED WITH THE POWER TO DEPORT.  P.
153. 

8.  OBJECTION TO EVIDENCE ON THE GROUND THAT IT VIOLATES THE
GOVERNING REGULATIONS IS TIMELY WHERE MADE BEFORE BOTH THE BOARD OF
IMMIGRATION APPEALS AND THE ATTORNEY GENERAL, THOUGH NOT AT THE HEARING
BEFORE THE INSPECTOR.  P. 151. 

9.  SINCE IT WAS ERROR TO ADMIT INTO EVIDENCE AGAINST THE PETITIONER
CERTAIN UNSWORN STATEMENTS IN VIOLATION OF RULES 150.1(C) AND 150.6(I)
OF THE REGULATIONS OF THE IMMIGRATION AND NATURALIZATION SERVICE -
CONSTRUED AS MEANING (1) THAT AN INVESTIGATING OFFICER IN OBTAINING A
"RECORDED STATEMENT" MUST OBTAIN THE STATEMENT BY INTERROGATION UNDER
OATH AND SEEK TO OBTAIN IT OVER THE SIGNATURE OF THE MAKER, AND (2)
THAT ONLY SUCH A "RECORDED STATEMENT," SO SAFEGUARDED, MAY BE USED AS
EVIDENCE WHEN THE MAKER OF THE STATEMENT GIVES CONTRADICTORY EVIDENCE
ON THE STAND - , SINCE THE STATEMENTS IN QUESTION WERE SO CRUCIAL TO
THE FINDINGS OF MEMBERSHIP, AND SINCE THAT ISSUE WAS SO CLOSE, THIS
COURT IS UNABLE TO SAY THAT THE ORDER OF DEPORTATION MAY BE SUSTAINED
WITHOUT THEM.  PP. 151, 156. 

10.  IN HABEAS CORPUS PROCEEDINGS CHALLENGING THE LEGALITY OF
DETENTION UPON A WARRANT OF DEPORTATION, THE PETITIONER DOES NOT PROVE
HE HAD AN UNFAIR HEARING MERELY BY PROVING THE DECISION TO BE WRONG OR
BY SHOWING THAT INCOMPETENT EVIDENCE WAS ADMITTED OR CONSIDERED; BUT
THE CASE IS DIFFERENT WHERE EVIDENCE WAS IMPROPERLY RECEIVED AND WHERE
BUT FOR THAT EVIDENCE IT IS WHOLLY SPECULATIVE WHETHER THE REQUISITE
FINDING WOULD HAVE BEEN MADE.  P. 156. 

BRIDGES V. WIXON, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION
SERVICE, DEPARTMENT OF JUSTICE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 323 U.S. 708, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DENYING A PETITION FOR A WRIT OF HABEAS CORPUS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

HARRY BRIDGES IS AN ALIEN WHO ENTERED THIS COUNTRY FROM AUSTRALIA IN
1920.  IN 1938 DEPORTATION PROCEEDINGS WERE INSTITUTED AGAINST HIM ON
THE GROUND THAT HE BOTH HAD BEEN AND THEN WAS A MEMBER OF OR AFFILIATED
WITH THE COMMUNIST PARTY OF THE UNITED STATES AND THAT THAT PARTY
ADVISED AND TAUGHT THE OVERTHROW BY FORCE OF THE GOVERNMENT OF THE
UNITED STATES AND CAUSED PRINTED MATTER TO BE CIRCULATED WHICH
ADVOCATED THAT COURSE.  UNDER THE STATUTE THEN IN FORCE, PAST
MEMBERSHIP OR PAST AFFILIATION WAS INSUFFICIENT FOR DEPORTATION,
PRESENT MEMBERSHIP OR PRESENT AFFILIATION BEING REQUIRED.  KESSLER V.
STRECKER, 307 U.S. 22.  A HEARING WAS HAD.  THE EXAMINER, HON. JAMES M.
LANDIS, CONCLUDED THAT THE EVIDENCE ESTABLISHED NEITHER THAT HARRY
BRIDGES "IS A MEMBER OF NOR AFFILIATED WITH" THE COMMUNIST PARTY OF THE
UNITED STATES.  THE SECRETARY OF LABOR SUSTAINED THE EXAMINER AND
DISMISSED THE PROCEEDINGS.  THAT WAS IN JANUARY 1940.  BY THE ACT OF
JUNE 28, 1940, CONGRESS AMENDED THE STATUTE SO AS TO PROVIDE FOR
DEPORTATION OF ANY ALIEN WHO WAS "AT THE TIME OF ENTERING THE UNITED
STATES, OR HAS BEEN AT ANY TIME THEREAFTER" A MEMBER OF OR AFFILIATED
WITH AN ORGANIZATION OF THE CHARACTER ATTRIBUTED TO THE COMMUNIST PARTY
IN THE FIRST PROCEEDING N1.  A SECOND DEPORTATION PROCEEDING WAS
INSTITUTED AGAINST HARRY BRIDGES UNDER THE AMENDED STATUTE ON THE
GROUND THAT HE HAD BEEN A MEMBER OF OR AFFILIATED WITH THAT
ORGANIZATION.  FN2  ANOTHER HEARING WAS HAD.  THE INSPECTOR DESIGNATED
TO CONDUCT THE HEARINGS AND MAKE A REPORT, HON. CHARLES B. SEARS, FOUND
THAT THE COMMUNIST PARTY OF THE UNITED STATES WAS AN ORGANIZATION OF
THE CHARACTER DESCRIBED IN THE STATUTE, THAT THE MARINE WORKERS'
INDUSTRIAL UNION WAS AFFILIATED WITH THE COMMUNIST PARTY AND WAS AN
ORGANIZATION OF THE SAME CHARACTER, AND THAT AFTER ENTERING THIS
COUNTRY HARRY BRIDGES HAD BEEN AFFILIATED WITH BOTH ORGANIZATIONS AND
HAD BEEN A MEMBER OF THE COMMUNIST PARTY.  HE RECOMMENDED DEPORTATION. 
THE CASE WAS HEARD BY THE BOARD OF IMMIGRATION APPEALS  FN3  WHICH
FOUND THAT HARRY BRIDGES HAD NOT BEEN A MEMBER OF OR AFFILIATED WITH
EITHER OF THOSE ORGANIZATIONS AT ANY TIME AFTER HE ENTERED THIS
COUNTRY.  THE ATTORNEY GENERAL REVIEWED THE DECISION OF THE BOARD AND
RENDERED AN OPINION IN WHICH HE MADE FINDINGS IN ACCORDANCE WITH THOSE
PROPOSED BY THE INSPECTOR AND ORDERED HARRY BRIDGES TO BE DEPORTED.  A
WARRANT OF DEPORTATION WAS ISSUED.  HARRY BRIDGES SURRENDERED HIMSELF
TO THE CUSTODY OF RESPONDENT AND CHALLENGED THE LEGALITY OF HIS
DETENTION BY A PETITION FOR A WRIT OF HABEAS CORPUS IN THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.  THAT COURT DENIED THE
PETITION AND REMANDED PETITIONER TO THE CUSTODY OF RESPONDENT.  49
F.SUPP.  292.  THE CIRCUIT COURT OF APPEALS AFFIRMED BY A DIVIDED
VOTE.  144 F.2D 927, 944.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI WHICH WE GRANTED BECAUSE OF THE SERIOUS CHARACTER OF THE
QUESTIONS WHICH ARE PRESENTED. 

AS WE HAVE SAID, HARRY BRIDGES CAME HERE FROM AUSTRALIA IN 1920.  HE
HAS NOT RETURNED TO AUSTRALIA SINCE THAT TIME.  HE WAS A LONGSHOREMAN. 
IN 1933 HE BECAME ACTIVE IN TRADE-UNION WORK ON THE WATER FRONT IN SAN
FRANCISCO.  THE ATTORNEY GENERAL FOUND THAT HE HAD "DONE MUCH TO
IMPROVE THE CONDITIONS THAT EXISTED AMONG THE LONGSHOREMEN."  HE
REORGANIZED AND HEADED UP THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,
AN AMERICAN FEDERATION OF LABOR UNION.  HE LED THE MARITIME WORKERS'
STRIKE ON THE PACIFIC COAST IN 1934.  HE WAS PRESIDENT OF THE LOCAL
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION FROM 1934 TO 1936 AND WAS
PACIFIC COAST PRESIDENT IN 1936.  IN 1937 HIS UNION BROKE WITH THE
AMERICAN FEDERATION OF LABOR, CHANGED ITS NAME TO INTERNATIONAL
LONGSHOREMEN AND WAREHOUSEMEN'S UNION, AND BECAME AFFILIATED WITH THE
COMMITTEE FOR INDUSTRIAL ORGANIZATION.  BRIDGES WAS ELECTED PACIFIC
COAST DISTRICT PRESIDENT OF THAT UNION AND HAS HELD THE OFFICE EVER
SINCE.  HE ALSO HOLDS SEVERAL IMPORTANT OFFICES IN THE C.I.O. 

THE TWO GROUNDS ON WHICH THE DEPORTATION ORDER RESTS - THAT HARRY
BRIDGES AT ONE TIME HAD BEEN BOTH "AFFILIATED" WITH THE COMMUNIST PARTY
AND A MEMBER OF IT - PRESENT DIFFERENT QUESTIONS WITH WHICH WE DEAL
SEPARATELY. 

AFFILIATION.  THE STATUTE DEFINES AFFILIATION AS FOLLOWS: 

"FOR THE PURPOSE OF THIS SECTION:  (1) THE GIVING, LOANING OR
PROMISING OF MONEY OR ANY THING OF VALUE TO BE USED FOR THE ADVISING,
ADVOCACY, OR TEACHING OF ANY DOCTRINE ABOVE ENUMERATED SHALL CONSTITUTE
THE ADVISING, ADVOCACY, OR TEACHING OF SUCH DOCTRINE; AND (2) THE
GIVING, LOANING OR PROMISING OF MONEY OR ANY THING OF VALUE TO ANY
ORGANIZATION, ASSOCIATION, SOCIETY, OR GROUP, OF THE CHARACTER ABOVE
DESCRIBED SHALL CONSTITUTE AFFILIATION THEREWITH; BUT NOTHING IN THIS
PARAGRAPH SHALL BE TAKEN AS AN EXCLUSIVE DEFINITION OF ADVISING,
ADVOCACY, TEACHING, OR AFFILIATION."  41 STAT. 1009, 8 U.S.C. SEC.
137F. 

THE DOCTRINE REFERRED TO IS THE OVERTHROW OF THE GOVERNMENT BY FORCE
OR VIOLENCE.  FN4  THE ORGANIZATIONS OR GROUPS REFERRED TO ARE THOSE
WHICH ADVISE AND TEACH THAT DOCTRINE OR WHICH WRITE, CIRCULATE, DISPLAY
AND THE LIKE OR HAVE IN THEIR POSSESSION FOR SUCH PURPOSE ANY WRITTEN
OR PRINTED MATTER OF THAT CHARACTER. 

IN RULING ON THE QUESTION WHETHER AN ALIEN HAD BEEN "AFFILIATED" WITH
THE COMMUNIST PARTY AND THEREFORE COULD BE DEPORTED, THE COURT IN
UNITED STATES V. REIMER, 79 F.2D 315, 317, SAID THAT SUCH AN
AFFILIATION WAS NOT PROVED "UNLESS THE ALIEN IS SHOWN TO HAVE SO
CONDUCTED HIMSELF THAT HE HAS BROUGHT ABOUT A STATUS OF MUTUAL
RECOGNITION THAT HE MAY BE RELIED ON TO CO-OPERATE WITH THE COMMUNIST
PARTY ON A FAIRLY PERMANENT BASIS.  HE MUST BE MORE THAN MERELY IN
SYMPATHY WITH ITS AIMS OR EVEN WILLING TO AID IT IN A CASUAL,
INTERMITTENT WAY.  AFFILIATION INCLUDES AN ELEMENT OF DEPENDABILITY
UPON WHICH THE ORGANIZATION CAN RELY WHICH, THOUGH NOT EQUIVALENT TO
MEMBERSHIP DUTY, DOES REST UPON A COURSE OF CONDUCT THAT COULD NOT BE
ABRUPTLY ENDED WITHOUT GIVING AT LEAST REASONABLE CAUSE FOR THE CHARGE
OF A BREACH OF GOOD FAITH."  THE SAME IDEA WAS EXPRESSED BY DEAN LANDIS
IN THE FIRST BRIDGES' REPORT.  AFTER STATING THAT "AFFILIATION" IMPLIES
A "STRONGER BOND" THAN "ASSOCIATION," HE WENT ON TO SAY:  "IN THE
CORPORATE FIELD ITS USE EMBRACES NOT THE CASUAL AFFINITY OF AN
OCCASIONAL SIMILARITY OF OBJECTIVE, BUT TIES AND CONNECTIONS THAT,
THOUGH LESS THAN THAT COMPLETE CONTROL WHICH PARENT POSSESSES OVER
SUBSIDIARY, ARE NEVERTHELESS SUFFICIENT TO CREATE A CONTINUING
RELATIONSHIP THAT EMBRACES BOTH UNITS WITHIN THE CONCEPT OF A SYSTEM. 
IN THE FIELD OF ELEEMOSYNARY AND POLITICAL ORGANIZATION THE SAME BASIC
IDEA PREVAILS."  AND HE CONCLUDED: "PERSONS ENGAGED IN BITTER
INDUSTRIAL STRUGGLES TEND TO SEEK HELP AND ASSISTANCE FROM EVERY
AVAILABLE SOURCE.  BUT THE INTERMITTENT SOLICITATION AND ACCEPTANCE OF
SUCH HELP MUST BE SHOWN TO HAVE RIPENED INTO THOSE BONDS OF MUTUAL
COOPERATION AND ALLIANCE THAT ENTAIL CONTINUING RECIPROCAL DUTIES AND
RESPONSIBILITIES BEFORE THEY CAN BE DEEMED TO COME WITHIN THE STATUTORY
REQUIREMENT OF AFFILIATION....  TO EXPAND THAT STATUTORY DEFINITION TO
EMBRACE WITHIN ITS TERMS AD HOC COOPERATION ON OBJECTIVES WHOSE PURSUIT
IS CLEARLY ALLOWABLE UNDER OUR CONSTITUTIONAL SYSTEM, OR FRIENDLY
ASSOCIATIONS THAT HAVE NOT BEEN SHOWN TO HAVE RESULTED IN THE
EMPLOYMENT OF ILLEGAL MEANS, IS WARRANTED NEITHER BY REASON NOR BY
LAW." 

THE LEGISLATIVE HISTORY THROWS LITTLE LIGHT ON THE MEANING OF
"AFFILIATION" AS USED IN THE STATUTE.  IT IMPORTS, HOWEVER, LESS THAN
MEMBERSHIP BUT MORE THAN SYMPATHY.  BY THE TERMS OF THE STATUTE IT
INCLUDES THOSE WHO CONTRIBUTE MONEY OR ANYTHING OF VALUE TO AN
ORGANIZATION WHICH BELIEVES IN, ADVISES, ADVOCATES, OR TEACHES THE
OVERTHROW OF OUR GOVERNMENT BY FORCE OR VIOLENCE.  THAT EXAMPLE THROWS
LIGHT ON THE MEANING OF THE TERM "AFFILIATION."  HE WHO RENDERS
FINANCIAL ASSISTANCE TO ANY ORGANIZATION MAY GENERALLY BE SAID TO
APPROVE OF ITS OBJECTIVES OR AIMS.  SO CONGRESS DECLARED IN THE CASE OF
AN ALIEN WHO CONTRIBUTED TO THE TREASURY OF AN ORGANIZATION WHOSE AIM
WAS TO OVERTHROW THE GOVERNMENT BY FORCE AND VIOLENCE.  BUT HE WHO
COOPERATES WITH SUCH AN ORGANIZATION ONLY IN ITS WHOLLY LAWFUL
ACTIVITIES CANNOT BY THAT FACT BE SAID AS A MATTER OF LAW TO BE
"AFFILIATED" WITH IT.  NOR IS IT CONCLUSIVE THAT THE COOPERATION WAS
MORE THAN INTERMITTENT AND SHOWED A RATHER CONSISTENT COURSE OF
CONDUCT.  COMMON SENSE INDICATES THAT THE TERM "AFFILIATION" IN THIS
SETTING SHOULD BE CONSTRUED MORE NARROWLY.  INDIVIDUALS, LIKE NATIONS,
MAY COOPERATE IN A COMMON CAUSE OVER A PERIOD OF MONTHS OR YEARS THOUGH
THEIR ULTIMATE AIMS DO NOT COINCIDE.  ALLIANCES FOR LIMITED OBJECTIVES
ARE WELL KNOWN.  CERTAINLY THOSE WHO JOINED FORCES WITH RUSSIA TO
DEFEAT THE NAZIS MAY NOT BE SAID TO HAVE MADE AN ALLIANCE TO SPREAD THE
CAUSE OF COMMUNISM.  AN INDIVIDUAL WHO MAKES CONTRIBUTIONS TO FEED
HUNGRY MEN DOES NOT BECOME "AFFILIATED" WITH THE COMMUNIST CAUSE
BECAUSE THOSE MEN ARE COMMUNISTS.  A DIFFERENT RESULT IS NOT
NECESSARILY INDICATED IF AID IS GIVEN TO OR RECEIVED FROM A PROSCRIBED
ORGANIZATION IN ORDER TO WIN A LEGITIMATE OBJECTIVE IN A DOMESTIC
CONTROVERSY.  WHETHER INTERMITTENT OR REPEATED, THE ACT OR ACTS TENDING
TO PROVE "AFFILIATION" MUST BE OF THAT QUALITY WHICH INDICATES AN
ADHERENCE TO OR A FURTHERANCE OF THE PURPOSES OR OBJECTIVES OF THE
PROSCRIBED ORGANIZATION AS DISTINGUISHED FROM MERE COOPERATION WITH IT
IN LAWFUL ACTIVITIES.  THE ACT OR ACTS MUST EVIDENCE A WORKING ALLIANCE
TO BRING THE PROGRAM TO FRUITION. 

WE ARE SATISFIED THAT THE TERM "AFFILIATION" WAS NOT SO CONSTRUED
EITHER BY JUDGE SEARS OR BY THE ATTORNEY GENERAL.  THE REPORTS MADE IN
THIS CASE CONTAIN NO PRECISE FORMULATION OF THE STANDARD WHICH WAS
EMPLOYED.  BUT THE WAY IN WHICH THE TERM "AFFILIATION" WAS USED AND
APPLIED CONVINCES US THAT IT WAS GIVEN A LOOSER AND MORE EXPANSIVE
MEANING THAN THE STATUTE PERMITS.  JUDGE SEARS IN HIS REPORT STATED
THAT "AFFILIATION IS CLEARLY A WORD OF BROADER CONTENT THAN MEMBERSHIP,
AND OF NARROWER CONTENT THAN SYMPATHY.  GENERALLY, THERE WILL BE SOME
CONTINUITY OF RELATIONSHIP TO BRING THE WORD INTO APPLICATION."  BUT HE
CONCLUDED THAT THAT WAS NOT NECESSARILY SO IN VIEW OF THE STATUTORY
DEFINITION.  AND HE ADDED:  "AFFILIATION MAY DOUBTLESS BE SHOWN
CIRCUMSTANTIALLY.  ASSISTING IN THE ENTERPRISES OF AN ORGANIZATION,
SECURING MEMBERS FOR IT, TAKING PART IN MEETINGS ORGANIZED AND DIRECTED
BY OR ON BEHALF OF THE ORGANIZATION, WOULD ALL TEND TO SHOW
AFFILIATION.  THE WEIGHT TO BE GIVEN TO SUCH EVIDENCE IS, OF COURSE,
DETERMINED BY THE TRIER OF THE FACT."  THAT VIEW WAS APPARENTLY SHARED
BY THE ATTORNEY GENERAL.  BUT THE BROAD SWEEP WHICH WAS GIVEN THE TERM
IN ITS APPLICATION TO THE FACTS OF THIS CASE IS ILLUSTRATED BY THE
FOLLOWING EXCERPT FROM THE ATTORNEY GENERAL'S REPORT: 

"JUDGE SEARS SUMMARIZES BRIDGES' ATTITUDE TOWARDS THE COMMUNIST PARTY
AND ITS POLICIES BY SAYING THAT THE 'ISOLATED INSTANCES,' WHILE NOT
EVIDENCE TO ESTABLISH MEMBERSHIP IN OR AFFILIATION WITH THE COMMUNIST
PARTY, NEVERTHELESS SHOW A SYMPATHETIC OR COOPERATIVE ATTITUDE ON HIS
PART TO THE PARTY, AND FORM 'A PATTERN WHICH IS MORE CONSISTENT WITH
THE CONCLUSION THAT THE ALIEN FOLLOWED THIS COURSE OF CONDUCT AS AN
AFFILIATE OF THE COMMUNIST PARTY, RATHER THAN AS A MATTER OF CHANCE
COINCIDENCE.'  THIS CONCLUSION, SAID JUDGE SEARS, WAS STRENGTHENED BY
HIS CONSISTENTLY FAVORING NONDISCRIMINATION AGAINST UNION MEN BECAUSE
OF COMMUNIST MEMBERSHIP; AND BY HIS EXCORIATING 'RED BAITERS,' AS HE
CALLED THOSE WHO TOOK AN OPPOSITE VIEW, WHICH 'AMOUNTED TO COOPERATION
WITH THE COMMUNIST PARTY IN CARRYING OUT ITS PROGRAM OF PENETRATION AND
BORING FROM WITHIN'." 

BUT WHEN WE TURN TO THE FACTS OF THIS CASE WE HAVE LITTLE MORE THAN A
COURSE OF CONDUCT WHICH REVEALS COOPERATION WITH COMMUNIST GROUPS FOR
THE ATTAINMENT OF WHOLLY LAWFUL OBJECTIVES. 

THE ASSOCIATIONS WHICH HARRY BRIDGES HAD WITH VARIOUS COMMUNIST
GROUPS SEEM TO INDICATE NO MORE THAN COOPERATIVE MEASURES TO ATTAIN
OBJECTIVES WHICH WERE WHOLLY LEGITIMATE.  THE LINK BY WHICH IT IS
SOUGHT TO TIE HIM TO SUBVERSIVE ACTIVITIES IS AN EXCEEDINGLY TENUOUS
ONE, IF IT MAY BE SAID TO EXIST AT ALL.  THE TRADE UNION UNITY LEAGUE
WAS FOUND TO BE A COMMUNIST ORGANIZATION.  IT CHARTERED THE MARINE
WORKERS' INDUSTRIAL UNION IN 1930, WHICH CONTINUED UNTIL 1935 AND WAS
FOUND TO BE A PROSCRIBED ORGANIZATION.  THAT UNION LAUNCHED THE
WATERFRONT WORKER, A MIMEOGRAPHED SHEET, IN 1932.  THE ATTORNEY GENERAL
SUSTAINED JUDGE SEARS' FINDING THAT BRIDGES SPONSORED IT AND WAS
RESPONSIBLE FOR ITS PUBLICATION SHORTLY AFTER IT FIRST APPEARED IN 1932
AND DOWN TO ITS ABANDONMENT IN 1936.  THE PAPER ACKNOWLEDGED THE
ASSISTANCE OF THE MWIU PRIOR TO SEPTEMBER 15, 1933.  THE QUESTION WHEN
BRIDGES TOOK OVER THE PAPER WAS CLOSELY CONTESTED, THE BOARD OF
IMMIGRATION APPEALS FINDING THAT BRIDGES BECAME CONNECTED WITH IT ABOUT
SEPTEMBER 15, 1933, AFTER THE MWIU HAD ABANDONED IT.  THE FINDING OF
JUDGE SEARS, APPROVED BY THE ATTORNEY GENERAL, THAT THE PAPER WAS AN
INSTRUMENT OF THE MWIU AND THE COMMUNIST PARTY FROM DECEMBER 1932 TO
ITS ABANDONMENT IN 1936 AND THAT IT WAS UNDER THE DOMINATION AND
CONTROL OF THOSE ORGANIZATIONS DURING THAT PERIOD RESTED PRIMARILY ON
THE FOLLOWING GROUNDS:  "(1) THE ACKNOWLEDGED COOPERATION WITH THE
M.W.I.U., IN THE EARLY ISSUES OF THE PAPER AND SUBSEQUENT FAVORABLE
TREATMENT OF THE M.W.I.U., T.U.U.L., AND OTHER COMMUNIST-SPONSORED
ORGANIZATIONS DURING THE PAPER'S ENTIRE EXISTENCE.  (2) CONSISTENT
ATTACKS UPON THE SO-CALLED 'REACTIONARY' LEADERS OF THE A.F. OF L. (3)
SUPPORT OF THE COMMUNIST CANDIDATES FOR POLITICAL OFFICE.  (4) ADVICE
TO READ COMMUNIST LITERATURE.  (5) THE USE OF ADDRESSES OF COMMUNISTS
OR COMMUNIST-AFFILIATED ORGANIZATIONS."  BUT WHEN THE EVIDENCE
UNDERLYING THESE FINDINGS IS EXAMINED IT IS FOUND TO BE DEVOID OF ANY
SHOWING THAT THE WATERFRONT WORKER ADVOCATED OVERTHROW OF THE
GOVERNMENT BY FORCE.  IT WAS A MILITANT TRADE-UNION JOURNAL.  IT AIRED
THE GRIEVANCES OF THE LONGSHOREMAN.  IT DISCUSSED NATIONAL AFFAIRS
AFFECTING THE INTERESTS OF WORKING MEN.  IT DECLARED AGAINST WAR.  BUT
WE HAVE FOUND NO EVIDENCE WHATSOEVER WHICH SUGGESTS THAT IT ADVOCATED
THE OVERTHROW OF THE GOVERNMENT BY FORCE.  NOR IS THERE ANY FINDING
THAT BRIDGES TOOK OVER THIS PROJECT WITH THE VIEW OF DOING MORE THAN
ADVANCING THE LAWFUL CAUSE OF UNIONISM.  THE ADVICE TO SUPPORT FOR
OFFICE CERTAIN CANDIDATES SAID TO BE COMMUNISTS WAS BASED ENTIRELY ON
THE PLATFORM ON WHICH THEY RAN - CASH RELIEF; ABOLITION OF VAGRANCY
LAWS; NO EVICTIONS; GAS, WATER AND ELECTRICITY FOR THE UNEMPLOYED; AND
UNEMPLOYMENT RELIEF.  THE ADVICE TO READ COMMUNIST LITERATURE WAS NOT
GENERAL; IT WAS SPECIFICALLY ADDRESSED TO THE COMPARATIVE MERITS OF
THOSE PUBLICATIONS AND OTHER PAPERS ON THE TRUTHFULNESS OF LABOR NEWS. 
THE USE OF ADDRESSES OF COMMUNIST ORGANIZATIONS, ESPECIALLY STRESSED BY
THE ATTORNEY GENERAL, WAS SAID BY JUDGE SEARS TO DEMONSTRATE "A CLOSE
COOPERATION WITH THE COMMUNISTS AND COMMUNIST ORGANIZATIONS."  BUT
CLOSE COOPERATION IS NOT SUFFICIENT TO ESTABLISH AN "AFFILIATION"
WITHIN THE MEANING OF THE STATUTE.  IT MUST EVIDENCE A WORKING ALLIANCE
TO BRING THE PROSCRIBED PROGRAM TO FRUITION. 

IT MUST BE REMEMBERED THAT THE MARINE WORKERS' INDUSTRIAL UNION WAS
NOT A SHAM OR PRETENSE.  IT WAS A GENUINE UNION.  IT WAS FOUND TO HAVE,
AND WE ASSUME IT DID HAVE, THE ILLEGITIMATE OBJECTIVE OF OVERTHROWING
THE GOVERNMENT BY FORCE.  BUT IT ALSO HAD THE OBJECTIVE OF IMPROVING
THE LOT OF ITS MEMBERS IN THE NORMAL TRADE UNION SENSE.  ONE WHO
COOPERATED WITH IT IN PROMOTING ITS LEGITIMATE OBJECTIVES CERTAINLY
COULD NOT BY THAT FACT ALONE BE SAID TO SPONSOR OR APPROVE OF ITS
GENERAL OR UNLAWFUL OBJECTIVES.  BUT UNLESS HE ALSO JOINED IN THAT OVER
ALL PROGRAM, HE WOULD NOT BE "AFFILIATED" WITH THE COMMUNIST CAUSE IN
THE SENSE IN WHICH THE STATUTE USES THE TERM. 

WHETHER ONE COULD BE A MEMBER OF THAT UNION WITHOUT BECOMING
"AFFILIATED" WITH THE COMMUNIST PARTY WITHIN THE MEANING OF THE
STATUTE, WE NEED NOT DECIDE.  FOR HARRY BRIDGES WAS NEVER A MEMBER OF
IT. TO SAY THAT HIS CO-OPERATION WITH IT MADE HIM IN TURN "AFFILIATED"
WITH THE COMMUNIST PARTY IS TO IMPUTE TO HIM BELIEF IN AND ADHERENCE TO
ITS GENERAL OR UNLAWFUL OBJECTIVES.  IN THAT CONNECTION, IT MUST BE
REMEMBERED THAT ALTHOUGH DEPORTATION TECHNICALLY IS NOT CRIMINAL
PUNISHMENT (JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 242; BUGAJEWITZ
V. ADAMS, 228 U.S. 585, 591; MAHLER V. EBY, 264 U.S. 32, 39), IT MAY
NEVERTHELESS VISIT AS GREAT A HARDSHIP AS THE DEPRIVATION OF THE RIGHT
TO PURSUE A VOCATION OR A CALLING.  CF. CUMMINGS V. MISSOURI, 4 WALL. 
277; EX PARTE GARLAND, 4 WALL.  333.  AS STATED BY MR. JUSTICE BRANDEIS
SPEAKING FOR THE COURT IN NG FUNG HO V. WHITE, 259 U.S. 276, 284,
DEPORTATION MAY RESULT IN THE LOSS "OF ALL THAT MAKES LIFE WORTH
LIVING." 

WE CANNOT ASSUME THAT CONGRESS MEANT TO EMPLOY THE TERM "AFFILIATION"
IN A BROAD, FLUID SENSE WHICH WOULD VISIT SUCH HARDSHIP ON AN ALIEN FOR
SLIGHT OR INSUBSTANTIAL REASONS.  IT IS CLEAR THAT CONGRESS DESIRED TO
HAVE THE COUNTRY RID OF THOSE ALIENS WHO EMBRACED THE POLITICAL FAITH
OF FORCE AND VIOLENCE.  BUT WE CANNOT BELIEVE THAT CONGRESS INTENDED TO
CAST SO WIDE A NET AS TO REACH THOSE WHOSE IDEAS AND PROGRAM, THOUGH
COINCIDING WITH THE LEGITIMATE AIMS OF SUCH GROUPS, NEVERTHELESS FELL
FAR SHORT OF OVERTHROWING THE GOVERNMENT BY FORCE AND VIOLENCE. 
FREEDOM OF SPEECH AND OF PRESS IS ACCORDED ALIENS RESIDING IN THIS
COUNTRY.  BRIDGES V. CALIFORNIA, 314 U.S. 252.  SO FAR AS THIS RECORD
SHOWS THE LITERATURE PUBLISHED BY HARRY BRIDGES, THE UTTERANCES MADE BY
HIM WERE ENTITLED TO THAT PROTECTION.  THEY REVEALED A MILITANT
ADVOCACY OF THE CAUSE OF TRADE-UNIONISM.  BUT THEY DID NOT TEACH OR
ADVOCATE OR ADVISE THE SUBVERSIVE CONDUCT CONDEMNED BY THE STATUTE. 

INFERENCE MUST BE PILED ON INFERENCE TO IMPUTE BELIEF IN HARRY
BRIDGES OF THE REVOLUTIONARY AIMS OF THE GROUPS WHOSE AID AND
ASSISTANCE HE EMPLOYED IN HIS ENDEAVOR TO IMPROVE THE LOT OF THE
WORKINGMEN ON THE WATER FRONT.  THAT HE ENLISTED SUCH AID IS NOT
DENIED.  HE JUSTIFIED THAT COURSE ON THE GROUNDS OF EXPEDIENCY - TO GET
SUCH HELP AS HE COULD TO AID THE CAUSE OF HIS UNION.  FN5 BUT THERE IS
EVIDENCE THAT HE OPPOSED THE COMMUNIST TACTICS OF FOMENTING STRIKES;
THAT HE BELIEVED IN THE POLICY OF ARBITRATION AND DIRECT NEGOTIATION TO
SETTLE LABOR DISPUTES, WITH THE STRIKE RESERVED ONLY AS A LAST RESORT. 
AS DEAN LANDIS STATED IN THE FIRST REPORT: 

"BRIDGES' OWN STATEMENT OF HIS POLITICAL BELIEFS AND DISBELIEFS IS
IMPORTANT.  IT WAS GIVEN NOT ONLY WITHOUT RESERVE BUT VIGOROUSLY AS
DOGMA AND FAITHS OF WHICH THE MAN WAS PROUD AND WHICH REPRESENTED IN
HIS MIND THE AIMS OF HIS EXISTENCE.  IT WAS A FIGHTING APOLOGIA THAT
REFUSED TO TEMPER ITSELF TO THE WINDS OF CAUTION.  IT WAS AN AVOWAL OF
SYMPATHY WITH MANY OF THE OBJECTIVES THAT THE COMMUNIST PARTY AT TIMES
HAS EMBRACED, AN EXPRESSION OF DISBELIEF THAT THE METHODS THEY WISHED
TO EMPLOY WERE AS REVOLUTIONARY AS THEY GENERALLY SEEM, BUT IT WAS
UNEQUIVOCAL IN ITS DISTRUST OF TACTICS OTHER THAN THOSE THAT ARE
GENERALLY INCLUDED WITHIN THE CONCEPT OF DEMOCRATIC METHODS.  THAT
BRIDGES' AIMS ARE ENERGETICALLY RADICAL MAY BE ADMITTED, BUT THE PROOF
FAILS TO ESTABLISH THAT THE METHODS HE SEEKS TO EMPLOY TO REALIZE THEM
ARE OTHER THAN THOSE THAT THE FRAMEWORK OF DEMOCRATIC AND
CONSTITUTIONAL GOVERNMENT PERMITS." 

THAT OBSERVATION IS EQUALLY PERTINENT TO THE RECORD BEFORE US.  WE
CANNOT CONSTRUE "AFFILIATION" AS USED IN THE STATUTE TO BRING SUCH
CONDUCT AND ATTITUDES WITHIN ITS REACH.  WHETHER THE EVIDENCE WOULD
JUSTIFY A FINDING OF "AFFILIATION" IN THE STRICT SENSE IN WHICH THE
STATUTE USES THE TERM IS NOT FOR US TO SAY.  AN ACT INNOCENT ON ITS
FACE MAY BE DONE WITH AN EVIL PURPOSE.  BUT WHERE THE FATE OF A HUMAN
BEING IS AT STAKE THE PRESENCE OF THE EVIL PURPOSE MAY NOT BE LEFT TO
CONJECTURE.  IN THESE HABEAS CORPUS PROCEEDINGS WE DO NOT REVIEW THE
EVIDENCE BEYOND ASCERTAINING THAT THERE IS SOME EVIDENCE TO SUPPORT THE
DEPORTATION ORDER.  VAJTAUER V. COMMISSIONER, 273 U.S. 103, 106.  BUT
DETENTION UNDER AN INVALID ORDER OF DEPORTATION IS ESTABLISHED WHERE AN
ALIEN IS ORDERED DEPORTED FOR REASONS NOT SPECIFIED BY CONGRESS. 
MAHLER V. EBY, SUPRA.  THAT IS THE CASE HERE.  FOR OUR REVIEW OF THE
RECORD CONVINCES US THAT THE FINDING OF "AFFILIATION" WAS BASED ON TOO
LOOSE A MEANING OF THE TERM. 

MEMBERSHIP.  THE EVIDENCE OF "AFFILIATION" WAS USED NOT ONLY TO
SUPPORT THE FINDING THAT HARRY BRIDGES HAD BEEN "AFFILIATED" WITH THE
COMMUNIST PARTY BUT ALSO TO CORROBORATE THE FINDING THAT AT ONE TIME HE
HAD BEEN A MEMBER OF THAT ORGANIZATION.  WE MAY ASSUME THAT SUCH
EVIDENCE, THOUGH FALLING SHORT OF THE REQUIREMENTS OF "AFFILIATION,"
MIGHT BE ADMISSIBLE FOR THE LATTER PURPOSE.  BUT THE DIFFICULTY IS THAT
THE FINDING OF MEMBERSHIP, LIKE THE FINDING OF AFFILIATION, HAS AN
INFIRMITY WHICH MAY BE CHALLENGED IN THIS ATTACK ON THE LEGALITY OF
HARRY BRIDGES' DETENTION UNDER THE DEPORTATION ORDER. 

RULE 150.1(C) OF THE REGULATIONS OF THE IMMIGRATION AND
NATURALIZATION SERVICE (8 C.F.R., 1941 SUPP., 150.1(C)) PROVIDES:  "ALL
STATEMENTS SECURED FROM THE ALINE OR ANY OTHER PERSON DURING THE
INVESTIGATION, WHICH ARE TO BE USED AS EVIDENCE, SHALL BE TAKEN DOWN IN
WRITING; AND THE INVESTIGATING OFFICER SHALL ASK THE PERSON
INTERROGATED TO SIGN THE STATEMENT.  WHENEVER SUCH A RECORDED STATEMENT
IS TO BE OBTAINED FROM ANY PERSON, THE INVESTIGATING OFFICER SHALL
IDENTIFY HIMSELF TO SUCH PERSON AND THE INTERROGATION OF THAT PERSON
SHALL BE UNDER OATH OR AFFIRMATION.  WHENEVER A RECORDED STATEMENT IS
TO BE OBTAINED FROM A PERSON UNDER INVESTIGATION, HE SHALL BE WARNED
THAT ANY STATEMENT MADE BY HIM MAY BE USED AS EVIDENCE IN ANY
SUBSEQUENT PROCEEDING."  AND RULE 150.6(I) PROVIDES IN PART:  "A
RECORDED STATEMENT MADE BY THE ALIEN (OTHER THAN A GENERAL INFORMATION
FORM) OR BY ANY OTHER PERSON DURING AN INVESTIGATION MAY BE RECEIVED IN
EVIDENCE ONLY IF THE MAKER OF SUCH STATEMENT IS UNAVAILABLE OR REFUSES
TO TESTIFY AT THE WARRANT HEARING OR GIVES TESTIMONY CONTRADICTING THE
STATEMENTS MADE DURING THE INVESTIGATION." 

O'NEIL WAS A GOVERNMENT WITNESS.  HE WAS INTIMATE WITH HARRY
BRIDGES.  DURING THE COURSE OF THE EXAMINATION, O'NEIL WAS ASKED ABOUT
STATEMENTS WHICH HE ALLEGEDLY HAD MADE TO INVESTIGATING OFFICERS SOME
MONTHS EARLIER.  THESE STATEMENTS WERE NOT SIGNED BY O'NEIL.  THEY WERE
NOT MADE BY INTERROGATION UNDER OATH.  AND IT WAS NOT SHOWN THAT O'NEIL
WAS ASKED TO SWEAR AND SIGN; OR THAT, BEING ASKED, HE REFUSED.  THEY
WERE READ INTO THE RECORD AND VERIFIED BY THE STENOGRAPHER WHO TOOK
THEM DOWN.  AND AN OFFICER TESTIFIED THAT LATER O'NEIL HAD REPEATED THE
STATEMENTS TO HIM AND TO OTHER WITNESSES.  THESE STATEMENTS WERE THAT
O'NEIL JOINED THE COMMUNIST PARTY IN DECEMBER, 1936; THAT HE WALKED
INTO BRIDGES' OFFICE ONE DAY IN 1937 AND SAW BRIDGES PASTING ASSESSMENT
STAMPS IN A COMMUNIST PARTY BOOK; AND THAT BRIDGES REMINDED O'NEIL THAT
HE HAD NOT BEEN ATTENDING PARTY MEETINGS.  O'NEIL ADMITTED MAKING
STATEMENTS TO THE INVESTIGATING OFFICERS BUT DENIED MAKING THOSE
PARTICULAR STATEMENTS. 

JUDGE SEARS ADMITTED THE STATEMENTS NOT FOR PURPOSES OF IMPEACHMENT
BUT AS SUBSTANTIVE EVIDENCE.  THE BOARD OF IMMIGRATION APPEALS AND THE
ATTORNEY GENERAL BOTH CONCEDED THAT THE STATEMENTS WERE ADMITTED IN
VIOLATION OF RULES 150.1(C) AND 150.6(I).  FN6  THE BOARD HELD THAT IT
WAS ERROR TO CONSIDER THE STATEMENTS AS AFFIRMATIVE, PROBATIVE
EVIDENCE.  THE ATTORNEY GENERAL RULED:  "HAD THE ALIEN RAISED THE
QUESTION AT THE TIME OF THE HEARING, COMPLIANCE WITH THE DEPARTMENTAL
REGULATIONS WOULD HAVE BEEN OBLIGATORY AND A DELIBERATE REJECTION OF A
REQUEST TO EXCLUDE THE TESTIMONY WOULD HAVE RENDERED APPROPRIATE THE
OBJECTIONS NOW RAISED BY THE BOARD.  NO OBJECTION HAVING BEEN RAISED BY
THE ALIEN THROUGHOUT THE HEARING, HOWEVER, HE WAIVED THE RIGHT TO
OBJECT ON THE TECHNICAL GROUND THAT THE STATEMENT WAS NOT TAKEN IN
ACCORDANCE WITH THE RULES."  ONE DIFFICULTY WITH THAT POSITION IS THAT
BRIDGES DID PROTEST BEFORE JUDGE SEARS OVER THE USE OF THE STATEMENT. 
HE MAINTAINED THAT THEY WERE ERRONEOUSLY RECEIVED AND WERE WITHOUT
PROBATIVE VALUE THOUGH HE DID NOT REST HIS OBJECTION ON THE
REGULATIONS.  BUT THERE IS A MORE FUNDAMENTAL DIFFICULTY.  THE ORIGINAL
DECIDING BODY IS NOT THE INSPECTOR WHO HEARS THE CASE.  HE MERELY
SUBMITS A MEMORANDUM SETTING FORTH THE EVIDENCE ADDUCED AT THE HEARING,
HIS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND A PROPOSED
ORDER.  FN7  THE CASE THEN IS HEARD BY THE BOARD OF IMMIGRATION
APPEALS, WHICH IS AUTHORIZED TO PERFORM THE FUNCTIONS OF THE ATTORNEY
GENERAL IN RELATION TO DEPORTATION.  8 C.F.R., 1940 SUPP., SECS. 90.2,
90.3.  AND THE CASE MAY THEN GO TO THE ATTORNEY GENERAL FOR DECISION. 
IF THE OBJECTION TO EVIDENCE ON THE GROUND THAT IT VIOLATES THE
GOVERNING REGULATIONS IS MADE BEFORE THE AGENCY ENTRUSTED WITH THE DUTY
OF DECIDING WHETHER A CASE FOR DEPORTATION HAS BEEN ESTABLISHED, IT IS
MADE SOON ENOUGH.  OBJECTION TO THE USE OF THESE STATEMENTS AS
PROBATIVE EVIDENCE WAS MADE BEFORE BOTH THE BOARD AND THE ATTORNEY
GENERAL.  IT WAS SPECIFICALLY OBJECTED THAT THE STATEMENTS DID NOT
QUALIFY UNDER THE REGULATIONS. 

THE RULES ARE DESIGNED TO PROTECT THE INTERESTS OF THE ALIEN AND TO
AFFORD HIM DUE PROCESS OF LAW.  IT IS THE ACTION OF THE DECIDING BODY,
NOT THE RECOMMENDATION OF THE INSPECTOR, WHICH DETERMINES WHETHER THE
ALIEN WILL BE DEPORTED.  THE RULES AFFORD PROTECTION AT THAT CRUCIAL
STAGE OF THE PROCEEDINGS OR NOT AT ALL.  THE PERSON TO WHOM THE POWER
TO DEPORT HAS BEEN ENTRUSTED IS THE ATTORNEY GENERAL OR SUCH AGENCY AS
HE DESIGNATES.  8 U.S.C. SEC. 155.  HE IS AN ORIGINAL TRIER OF FACT ON
THE WHOLE RECORD.  IT IS HIS DECISION TO DEPORT AN ALIEN THAT CONGRESS
HAS MADE "FINAL."  8 U.S.C. SEC. 155.  ACCORDINGLY, IT IS NO ANSWER TO
SAY THAT THE RULES MAY BE DISREGARDED BECAUSE THEY WERE NOT CALLED TO
THE ATTENTION OF THE INSPECTOR. 

IT WAS ASSUMED IN BILOKUMSKY V. TOD, 263 U.S. 149, 155, THAT "ONE
UNDER INVESTIGATION WITH A VIEW TO DEPORTATION IS LEGALLY ENTITLED TO
INSIST UPON THE OBSERVANCE OF RULES PROMULGATED BY THE SECRETARY
PURSUANT TO LAW."  WE ADHERE TO THAT PRINCIPLE.  FOR THESE RULES ARE
DESIGNED AS SAFEGUARDS AGAINST ESSENTIALLY UNFAIR PROCEDURES.  THE
IMPORTANCE OF THIS PARTICULAR RULE MAY NOT BE GAINSAID.  A WRITTEN
STATEMENT AT THE EARLIER INTERVIEWS UNDER OATH AND SIGNED BY O'NEIL
WOULD HAVE AFFORDED PROTECTION AGAINST MISTAKES IN HEARING, MISTAKES IN
MEMORY, MISTAKES IN TRANSCRIPTION.  STATEMENTS MADE UNDER THOSE
CONDITIONS WOULD HAVE AN IMPORTANT SAFEGUARD - THE FEAR OF PROSECUTION
FOR PERJURY.  MOREOVER, IF O'NEIL HAD BEEN ASKED TO SWEAR TO AND SIGN
THE STATEMENTS AND HAD REFUSED TO DO SO, THE FACT OF HIS REFUSAL WOULD
HAVE WEIGHT IN EVALUATING THE TRUTH OF THE STATEMENTS.    THE
STATEMENTS WHICH O'NEIL ALLEGEDLY MADE WERE HEARSAY.  WE MAY ASSUME
THEY WOULD BE ADMISSIBLE FOR PURPOSES OF IMPEACHMENT.  BUT THEY
CERTAINLY WOULD NOT BE ADMISSIBLE IN ANY CRIMINAL CASE AS SUBSTANTIVE
EVIDENCE.  HICKORY V. UNITED STATES, 151 U.S. 303, 309, UNITED STATES
V. BLOCK, 88 F.2D 618, 620.  SO TO HOLD WOULD ALLOW MEN TO BE CONVICTED
ON UNSWORN TESTIMONY OF WITNESSES  FN8 - A PRACTICE WHICH RUNS COUNTER
TO THE NOTIONS OF FAIRNESS ON WHICH OUR LEGAL SYSTEM IS FOUNDED.  FN9
THERE HAS BEEN SOME RELAXATION OF THE RULE IN ALIEN EXCLUSION CASES. 
SEE UNITED STATES V. CORSI, 65 F.2D 564.  BUT WE ARE DEALING HERE WITH
DEPORTATION OF ALIENS WHOSE ROOTS MAY HAVE BECOME, AS THEY ARE IN THE
PRESENT CASE, DEEPLY FIXED IN THIS LAND.  IT IS TRUE THAT THE COURTS
HAVE BEEN LIBERAL IN RELAXING THE ORDINARY RULES OF EVIDENCE IN
ADMINISTRATIVE HEARINGS.  YET AS WAS APTLY STATED IN INTERSTATE
COMMERCE COMMISSION V. LOUISVILLE & NASHVILLE R. CO., 227 U.S. 88, 93,
"BUT THE MORE LIBERAL THE PRACTICE IN ADMITTING TESTIMONY, THE MORE
IMPERATIVE THE OBLIGATION TO PRESERVE THE ESSENTIAL RULES OF EVIDENCE
BY WHICH RIGHTS ARE ASSERTED OR DEFENDED." 

HERE THE LIBERTY OF AN INDIVIDUAL IS AT STAKE.  HIGHLY INCRIMINATING
STATEMENTS ARE USED AGAINST HIM - STATEMENTS WHICH WERE UNSWORN AND
WHICH UNDER THE GOVERNING REGULATIONS ARE INADMISSIBLE.  WE ARE DEALING
HERE WITH PROCEDURAL REQUIREMENTS PRESCRIBED FOR THE PROTECTION OF THE
ALIEN.  THOUGH DEPORTATION IS NOT TECHNICALLY A CRIMINAL PROCEEDING, IT
VISITS A GREAT HARDSHIP ON THE INDIVIDUAL AND DEPRIVES HIM OF THE RIGHT
TO STAY AND LIVE AND WORK IN THIS LAND OF FREEDOM.  THAT DEPORTATION IS
A PENALTY - AT TIMES A MOST SERIOUS ONE - CANNOT BE DOUBTED. 
METICULOUS CARE MUST BE EXERCISED LEST THE PROCEDURE BY WHICH HE IS
DEPRIVED OF THAT LIBERTY NOT MEET THE ESSENTIAL STANDARDS OF FAIRNESS. 

ON THE RECORD BEFORE US IT IS CLEAR THAT THE USE OF O'NEIL'S EX PARTE
STATEMENTS WAS HIGHLY PREJUDICIAL.  THOSE UNSWORN STATEMENTS OF O'NEIL
AND THE TESTIMONY OF ONE LUNDEBERG WERE ACCEPTED BY THE ATTORNEY
GENERAL AS SHOWING THAT BRIDGES WAS A MEMBER OF THE COMMUNIST PARTY. 
THERE WAS OTHER TESTIMONY BUT IT WAS SO "UNTRUSTWORTHY, CONTRADICTORY,
OR UNRELIABLE" AS TO BE REJECTED BY THE ATTORNEY GENERAL.  IF THE
FINDING AS TO LUNDEBERG'S TESTIMONY WAS TREATED BY THE ATTORNEY GENERAL
INDEPENDENTLY OF HIS FINDING AS TO O'NEIL'S, WE WOULD HAVE A DIFFERENT
CASE.  THEN WE WOULD HAVE TO DETERMINE WHETHER THE TESTIMONY OF
LUNDEBERG ALONE WAS SUFFICIENT TO SUSTAIN THE ORDER.  BUT THE ATTORNEY
GENERAL, UNLIKE JUDGE SEARS, DID NOT SEPARATE THE TESTIMONY OF
LUNDEBERG AND THAT OF O'NEIL FOR THE PURPOSE OF HIS FINDING AS TO
MEMBERSHIP.  HE LUMPED THEM TOGETHER AND FOUND THAT BETWEEN THEM THEIR
TOTAL WEIGHT WAS SUFFICIENT TO TIP THE SCALES AGAINST HARRY BRIDGES. 
HE RULED THAT IF THE UNSWORN STATEMENTS OF O'NEIL AND THE TESTIMONY OF
LUNDEBERG WERE BELIEVED "THE DOUBT IS DECIDED."  FN10  IT IS THUS
APPARENT NOT ONLY THAT THE UNSWORN STATEMENTS OF O'NEIL WEIGHED HEAVILY
IN THE SCALES BUT ALSO THAT IT TOOK THOSE UNSWORN STATEMENTS AS WELL AS
LUNDEBERG'S TESTIMONY TO RESOLVE THE DOUBT ON THIS SHARPLY CONTESTED
AND CLOSE QUESTION.  WHETHER THE FINDING WOULD HAVE BEEN MADE ON THIS
RECORD FROM THE TESTIMONY OF LUNDEBERG ALONE IS WHOLLY CONJECTURAL AND
HIGHLY SPECULATIVE.  NOT ONLY WAS LUNDEBERG ADMITTEDLY HOSTILE TO
BRIDGES.  NOT ONLY DID THE ATTORNEY GENERAL FAIL TO RULE THAT ON THE
BASIS OF LUNDEBERG'S TESTIMONY ALONE BRIDGES HAD BEEN A MEMBER OF THE
PARTY.  BUT BEYOND THAT, THE BOARD OF IMMIGRATION APPEALS SIGNIFICANTLY
CONCLUDED THAT APART FROM O'NEIL'S UNSWORN STATEMENTS THE EVIDENCE OF
BRIDGES' MEMBERSHIP WAS TOO FLIMSY TO SUPPORT A FINDING.  IT IS THUS
IDLE TO CONSIDER WHAT THE ATTORNEY GENERAL MIGHT HAVE RULED ON THE
BASIS OF THE OTHER EVIDENCE BEFORE HIM.  CF. UNITED STATES V. DUNTON,
291 F. 905, 907.  THE ISSUE OF MEMBERSHIP WAS TOO CLOSE AND TOO CRUCIAL
TO THE CASE TO ADMIT OF MERE SPECULATION.  SINCE IT WAS ERROR TO ADMIT
O'NEIL'S UNSWORN STATEMENTS AGAINST BRIDGES, SINCE THEY WERE SO CRUCIAL
TO THE FINDINGS OF MEMBERSHIP, AND SINCE THAT ISSUE WAS SO CLOSE, WE
ARE UNABLE TO SAY THAT THE ORDER OF DEPORTATION MAY BE SUSTAINED
WITHOUT THEM. 

IN THESE HABEAS CORPUS PROCEEDINGS THE ALIEN DOES NOT PROVE HE HAD AN
UNFAIR HEARING MERELY BY PROVING THE DECISION TO BE WRONG (TISI V. TOD,
264 U.S. 131, 133) OR BY SHOWING THAT INCOMPETENT EVIDENCE WAS ADMITTED
AND CONSIDERED.  VAJTAUER V. COMMISSIONER, SUPRA, P. 106.  BUT THE CASE
IS DIFFERENT WHERE EVIDENCE WAS IMPROPERLY RECEIVED AND WHERE BUT FOR
THAT EVIDENCE IT IS WHOLLY SPECULATIVE WHETHER THE REQUISITE FINDING
WOULD HAVE BEEN MADE.  THEN THERE IS DEPORTATION WITHOUT A FAIR
HEARING, WHICH MAY BE CORRECTED ON HABEAS CORPUS.  SEE VAJTAUER V.
COMMISSIONER, SUPRA. 

SINCE HARRY BRIDGES HAS BEEN ORDERED DEPORTED ON A MISCONSTRUCTION OF
THE TERM "AFFILIATION" AS USED IN THE STATUTE AND BY REASON OF AN
UNFAIR HEARING ON THE QUESTION OF HIS MEMBERSHIP IN THE COMMUNIST
PARTY, HIS DETENTION UNDER THE WARRANT IS UNLAWFUL.  ACCORDINGLY, IT IS
UNNECESSARY FOR US TO CONSIDER THE LARGER CONSTITUTIONAL QUESTIONS
WHICH HAVE BEEN ADVANCED IN THE CHALLENGE TO THE LEGALITY OF
PETITIONER'S DETENTION UNDER THE DEPORTATION ORDER. 

THE JUDGMENT BELOW IS REVERSED. 

FN1  THE STATUTE AS AMENDED (40 STAT. 1012, 41 STAT. 1008, 54 STAT.
673, 8 U.S.C. SEC. 137) PROVIDES IN PART AS FOLLOWS:  "THAT ANY ALIEN
WHO, AT ANY TIME, SHALL BE OR SHALL HAVE BEEN A MEMBER OF ANY ONE OF
THE FOLLOWING CLASSES SHALL BE EXCLUDED FROM ADMISSION INTO THE UNITED
STATES: 

     .     .         .         .         . 

"(C)  ALIENS  ...  WHO ARE MEMBERS OF OR AFFILIATED WITH ANY
ORGANIZATION, ASSOCIATION, SOCIETY, OR GROUP, THAT BELIEVES IN,
ADVISES, ADVOCATES, OR TEACHES:  (1) THE OVERTHROW BY FORCE OR VIOLENCE
OF THE GOVERNMENT OF THE UNITED STATES  ... 

     .         .         .        .         . 

"(E)  ALIENS WHO ARE MEMBERS OF OR AFFILIATED WITH ANY ORGANIZATION,
ASSOCIATION, SOCIETY, OR GROUP, THAT WRITES, CIRCULATES, DISTRIBUTES,
PRINTS, PUBLISHES, OR DISPLAYS, OR CAUSES TO BE WRITTEN, CIRCULATED,
DISTRIBUTED, PRINTED, PUBLISHED, OR DISPLAYED, OR THAT HAS IN ITS
POSSESSION FOR THE PURPOSE OF CIRCULATION, DISTRIBUTION, PUBLICATION,
ISSUE, OR DISPLAY, ANY WRITTEN OR PRINTED MATTER OF THE CHARACTER
DESCRIBED IN SUBDIVISION (D)(ADVISING, ADVOCATING OR TEACHING THE
OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED
STATES). 

"FOR THE PURPOSE OF THIS SECTION:  (1) THE GIVING, LOANING OR
PROMISING OF MONEY OR ANY THING OF VALUE TO BE USED FOR THE ADVISING,
ADVOCACY, OR TEACHING OF ANY DOCTRINE ABOVE ENUMERATED SHALL CONSTITUTE
THE ADVISING, ADVOCACY, OR TEACHING OF SUCH DOCTRINE; AND (2) THE
GIVING, LOANING OR PROMISING OF MONEY OR ANY THING OF VALUE TO ANY
ORGANIZATION, ASSOCIATION, SOCIETY, OR GROUP, OF THE CHARACTER ABOVE
DESCRIBED SHALL CONSTITUTE AFFILIATION THEREWITH; BUT NOTHING IN THIS
PARAGRAPH SHALL BE TAKEN AS AN EXCLUSIVE DEFINITION OF ADVISING,
ADVOCACY, TEACHING, OR AFFILIATION. 

"SEC. 2.  ANY ALIEN WHO WAS AT THE TIME OF ENTERING THE UNITED
STATES, OR HAS BEEN AT ANY TIME THEREAFTER, A MEMBER OF ANY ONE OF THE
CLASSES OF ALIENS ENUMERATED IN SECTION 1 OF THIS ACT, SHALL, UPON THE
WARRANT OF THE ATTORNEY GENERAL, BE TAKEN INTO CUSTODY AND DEPORTED IN
THE MANNER PROVIDED IN THE IMMIGRATION ACT OF FEBRUARY 5, 1917.  THE
PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO THE CLASSES OF ALIENS
MENTIONED IN THIS ACT, IRRESPECTIVE OF THE TIME OF THEIR ENTRY INTO THE
UNITED STATES."  THE IMMIGRATION ACT OF FEBRUARY 5, 1917 IS FOUND IN 39
STAT. 874. 

FN2  SINCE JUNE 14, 1940 THE IMMIGRATION LAWS HAVE BEEN ADMINISTERED
BY THE ATTORNEY GENERAL.  REORGANIZATION PLAN NO. V, EFFECTIVE JUNE 14,
1940.  54 STAT. 230, 1238, 5 U.S.C. FOL.  133T, 5 U.S.C. 133V. 

FN3  THE REGULATIONS OF THE IMMIGRATION AND NATURALIZATION SERVICE
PROVIDE THAT THE ALIEN SHALL BE ACCORDED A HEARING BEFORE AN IMMIGRANT
INSPECTOR TO DETERMINE WHETHER HE IS SUBJECT TO DEPORTATION ON THE
CHARGES STATED IN THE WARRANT OF ARREST, AT WHICH HEARING THE ALIEN IS
ENTITLED TO REPRESENTATION BY COUNSEL AND TO OFFER EVIDENCE IN HIS
BEHALF.  AS SOON AS PRACTICABLE AFTER THE HEARING HAS BEEN CONCLUDED,
THE INSPECTOR IS REQUIRED TO PREPARE A MEMORANDUM SETTING FORTH A
SUMMARY OF THE EVIDENCE ADDUCED AT THE HEARING, HIS PROPOSED FINDINGS
OF FACT AND CONCLUSIONS OF LAW, AND A PROPOSED ORDER, WHICH ARE TO BE
FURNISHED TO THE ALIEN OR HIS COUNSEL, WHO MAY FILE EXCEPTION THERETO
AND SUBMIT A BRIEF, 8 C.F.R., 1941 SUPP., 150.6, 150.7.  THE CASE IS
THEN HEARD BY THE BOARD OF IMMIGRATION APPEALS, A BODY AUTHORIZED TO
PERFORM THE FUNCTIONS OF THE ATTORNEY GENERAL IN RELATION TO
DEPORTATION, BUT RESPONSIBLE SOLELY TO HIM.  8 C.F.R., 1940 SUPP., 90.2
90.3.  IF EXCEPTIONS HAVE BEEN FILED, ORAL ARGUMENT BEFORE THE BOARD IS
PERMITTED.  IBID., 90.5.  WHERE A MEMBER OF THE BOARD DISSENTS, WHERE
THE BOARD CERTIFIES THAT A QUESTION OF DIFFICULTY IS INVOLVED, OR IN
ANY CASE IN WHICH THE ATTORNEY GENERAL DIRECTS, THE BOARD MUST REFER
THE CASE TO THE ATTORNEY GENERAL FOR REVIEW.  IF THE ATTORNEY GENERAL
REVERSES THE DECISION OF THE BOARD, THE ATTORNEY GENERAL MUST STATE IN
WRITING HIS CONCLUSIONS AND THE REASONS FOR HIS DECISION.  IBID.,
90.12. 

FN4  SEE NOTE 1, SUPRA. 

FN5  AS RESPECTS PRINTING RELEASES OF THE COMMUNIST PARTY IN A UNION
PAPER, HE TESTIFIED: 

"AS I UNDERSTAND, THE QUESTION WAS MY POSITION IN REGARD TO PRINTING
OFFICIAL COMMUNIST RELEASES.  I STILL SAY IT MIGHT DEPEND.  FOR
EXAMPLE, IF - THERE WAS A LOT OF TROUBLE UP THERE AT THAT TIME, A LOT
OF ACTION AND TIEUPS.  I BELIEVE THAT IF THE COMMUNIST PARTY HAPPENED
TO SEND IN A STATEMENT SAYING THAT THEY WOULD DO EVERYTHING THEY COULD
TO SUPPORT THE PARTICULAR DISPUTE AT THAT TIME IN BEHALF OF THE UNION
POSITION, MY POSITION WOULD BE THAT I WOULDN'T HAVE ANY GREAT OBJECTION
TO SEEING THAT CARRIED IN THE UNION PAPER."  AS RESPECTS VOTING FOR A
POLITICAL CANDIDATE KNOWN TO BE A COMMUNIST, HE TESTIFIED: 

"THE QUESTION OF SUPPORT ONLY GOES TO WHETHER HE IS A UNIONIST OR
NOT.  IF HE IS A BAD UNIONIST, WE DON'T CARE WHAT HE IS, WE ARE AGAINST
HIM; IF HE IS A GOOD ONE, WE DON'T CARE WHAT HE IS, WE ARE FOR HIM. 
HIS FIRST ALLEGIANCE MUST BE FOR THE UNION." 

FN6  WE ACCEPT THAT CONSTRUCTION OF THE RULES.  FOR RULE 150.6(I)
WHEN READ IN CONJUNCTION WITH RULE 150.1(C) FAIRLY MEANS (1) THAT AN
INVESTIGATING OFFICER IN OBTAINING A "RECORDED STATEMENT" MUST OBTAIN
THE STATEMENT BY INTERROGATION UNDER OATH AND SEEK TO OBTAIN IT OVER
THE SIGNATURE OF THE MAKER, AND (2) THAT ONLY SUCH A "RECORDED
STATEMENT," SO SAFEGUARDED, MAY BE USED AS EVIDENCE WHEN THE MAKER OF
THE STATEMENT GIVES CONTRADICTORY TESTIMONY ON THE STAND.  IT IS TRUE
THAT RULE 150.6(I) ALSO PROVIDES THAT "AN AFFIDAVIT OF AN INSPECTOR AS
TO THE STATEMENTS MADE BY THE ALIEN OR ANY OTHER PERSON DURING AN
INVESTIGATION MAY BE RECEIVED IN EVIDENCE, OTHERWISE THAN IN SUPPORT OF
THE TESTIMONY OF THE INSPECTOR, ONLY IF THE MAKER OF SUCH STATEMENT IS
UNAVAILABLE OR REFUSES TO TESTIFY AT THE WARRANT HEARING OR GIVES
TESTIMONY CONTRADICTING THE STATEMENT AND THE INSPECTOR IS UNAVAILABLE
TO TESTIFY IN PERSON."  IF WE ASSUME THAT THAT PROVISION CREATES AN
EXCEPTION FROM THE GENERAL RULE IN CASE OF THE INSPECTOR WHO IS
UNAVAILABLE TO TESTIFY IN PERSON, WE CAN HARDLY INFER THAT THE
EXCEPTION WAS DESIGNED TO SWALLOW THE GENERAL RULE.  THE DEEP-ROOTED
POLICY OF THE LAW TOWARDS HEARSAY EVIDENCE CAUTIONS AGAINST SUCH A
LOOSE READING OF THESE FUNDAMENTAL PROCEDURAL SAFEGUARDS. 

FN7  SEE NOTE 3, SUPRA. 

FN8  WE HAVE HERE QUITE A DIFFERENT CASE FROM THAT WHERE A PRIOR
STATEMENT OF AN ALIEN, CONTRADICTORY OF TESTIMONY MADE AT THE HEARING,
IS ADMITTED.  SEE CHAN WONG V. NAGLE, 17 F.2D 987; EX PARTE KISHIMOTO,
32 F.2D 991; 4 WIGMORE, EVIDENCE (3RD ED.)  SEC.  1048. 

FN9  DEAN WIGMORE IN HIS THIRD EDITION OF EVIDENCE (1940) SEC.
1018(B) TOOK THE OTHER POSITION.  BUT HE ADDED, "THE CONTRARY VIEW,
HOWEVER, IS THE ORTHODOX ONE.  IT IS UNIVERSALLY MAINTAINED BY THE
COURTS THAT PRIOR SELF-CONTRADICTIONS ARE NOT TO BE TREATED AS HAVING
ANY SUBSTANTIVE OR INDEPENDENT TESTIMONIAL VALUE." 

FN10  THE ATTORNEY GENERAL STATED, IMMEDIATELY PRIOR TO HIS ANALYSIS
OF THE TESTIMONY OF LUNDEBERG AND O'NEIL, THE FOLLOWING:  "JUDGE SEARS
EXAMINES IN DETAIL THE EVIDENCE OF FIFTEEN WITNESSES AS BEARING ON
BRIDGES' MEMBERSHIP IN OR AFFILIATION WITH THE COMMUNIST PARTY.  MUCH
OF THIS EVIDENCE IS REJECTED AS BEING UNTRUSTWORTHY, CONTRADICTORY, OR
UNRELIABLE.  HOWEVER, THE EVIDENCE OF TWO WITNESSES IS ACCEPTED AS
SHOWING THAT BRIDGES WAS A MEMBER OF THE PARTY.  IF THIS EVIDENCE IS
BELIEVED - AND JUDGE SEARS BELIEVED IT - THE DOUBT IS DECIDED.  THE
QUESTION IS SUBSTANTIALLY ONE OF CREDIBILITY.  THE REVIEW BOARD DID NOT
THINK THE EVIDENCE CREDIBLE.  BUT IT SHOULD BE REMEMBERED THAT JUDGE
SEARS SAW THE WITNESSES ON THE STAND, WATCHED THEIR DEMEANOR AND
EXPRESSION, AND WAS IN A FAR BETTER POSITION TO JUDGE THEIR
TRUTHFULNESS THAN THE REVIEW BOARD, DEALING WITH THE COLD PRINT OF THE
RECORD. 

"THE TWO MOST IMPORTANT WITNESSES AS TO MEMBERSHIP ARE HARRY
LUNDEBERG AND JAMES D. O'NEIL." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MURPHY, CONCURRING. 

THE RECORD IN THIS CASE WILL STAND FOREVER AS A MONUMENT TO MAN'S
INTOLERANCE OF MAN.  SELDOM IF EVER IN THE HISTORY OF THIS NATION HAS
THERE BEEN SUCH A CONCENTRATED AND RELENTLESS CRUSADE TO DEPORT AN
INDIVIDUAL BECAUSE HE DARED TO EXERCISE THE FREEDOM THAT BELONGS TO HIM
AS A HUMAN BEING AND THAT IS GUARANTEED TO HIM BY THE CONSTITUTION. 
FOR MORE THAN A DECADE POWERFUL ECONOMIC AND SOCIAL FORCES HAVE
COMBINED WITH PUBLIC AND PRIVATE AGENCIES TO SEEK THE DEPORTATION OF
HARRY BRIDGES, WHO CAME TO THIS COUNTRY IN 1920 FROM AUSTRALIA. 
EMERGING FROM THE PACIFIC COAST MARITIME STRIKE OF 1934 AS A RECOGNIZED
LABOR LEADER IN THAT AREA, BRIDGES INCURRED THE HATRED AND HOSTILITY OF
THOSE WHOSE INTERESTS COINCIDED DIRECTLY OR INDIRECTLY WITH THE
"VICIOUS AND INHUMANE PRACTICES TOWARD LONGSHOREMEN," 144 F.2D 927,
938, THAT BRIDGES WAS COMBATTING.  HIS PERSONAL VIEWPOINT ON CERTAIN
MATTERS ALSO ANTAGONIZED MANY PEOPLE OF MORE CONSERVATIVE LEANINGS. 
AGITATION FOR HIS DEPORTATION AROSE.  INDUSTRIAL AND FARMING
ORGANIZATIONS, VETERANS' GROUPS, CITY POLICE DEPARTMENTS AND PRIVATE
UNDERCOVER AGENTS ALL JOINED IN AN UNREMITTING EFFORT TO DEPORT HIM ON
THE GROUND THAT HE WAS CONNECTED WITH ORGANIZATIONS DEDICATED TO THE
OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE AND
VIOLENCE.  WIRE-TAPPING, SEARCHES AND SEIZURES WITHOUT WARRANTS AND
OTHER FORMS OF INVASION OF THE RIGHT OF PRIVACY HAVE BEEN WIDELY
EMPLOYED IN THIS DEPORTATION DRIVE. 

THIS OPPOSITION TO BRIDGES' PRESENCE IN THE UNITED STATES HAS BEEN AS
PERSISTENT AS IT HAS BEEN UNDAUNTED BY TEMPORARY SETBACKS TO ITS AIMS. 
THE IMMIGRATION AND NATURALIZATION SERVICE, AFTER A THOROUGH
INVESTIGATION OF THE ORIGINAL CHARGES IN 1934 AND 1935, WAS UNABLE TO
FIND EVEN A "SHRED OF EVIDENCE" WARRANTING HIS DEPORTATION AND THE
MATTER OFFICIALLY WAS DROPPED.  BUT THE CAMPAIGN TO BANISH HIM
CONTINUED UNABATED.  EVENTUALLY A WARRANT WAS ISSUED BY THE IMMIGRATION
AND NATURALIZATION SERVICE IN 1938 SEEKING HIS DEPORTATION.  A CLEAN
BILL OF HEALTH WAS GIVEN HIM, HOWEVER, AFTER A FULL HEARING BEFORE A
SPECIAL EXAMINER, DEAN LANDIS OF THE HARVARD LAW SCHOOL.  THIS ONLY LED
TO DEMANDS THAT THE DEPORTATION LAWS BE CHANGED TO MAKE SURE THAT
BRIDGES WAS EXILED.  THEREUPON A SPECIAL BILL WAS INTRODUCED AND
ACTUALLY PASSED BY THE HOUSE OF REPRESENTATIVES DIRECTING THE ATTORNEY
GENERAL "NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW" FORTHWITH TO TAKE
INTO CUSTODY AND DEPORT HARRY BRIDGES, "WHOSE PRESENCE IN THIS COUNTRY
THE CONGRESS DEEMS HURTFUL."  H.R. 9766, 76TH CONG., 3RD SESS.
FORTUNATELY THIS BILL DIED IN A SENATE COMMITTEE AFTER THE ATTORNEY
GENERAL DENOUNCED IT AS INCONSISTENT WITH THE AMERICAN PRACTICE AND
TRADITION OF DUE PROCESS OF LAW.  S. REP. NO. 2031, 76TH CONG., 3RD
SESS., P. 9. 

AS A SUBSTITUTE FOR THIS DIRECT LEGISLATIVE ASSAULT UPON BRIDGES,
CONGRESS AMENDED THE DEPORTATION LAW BY ENACTING SEC. 23 OF THE ALIEN
REGISTRATION ACT OF 1940, 54 STAT. 673.  THIS AMENDMENT SET ASIDE THIS
COURT'S DECISION IN KESSLER V. STRECKER, 307 U.S. 22, BY MAKING IT
CLEAR THAT AN ALIEN COULD BE DEPORTED IF, AT THE TIME OF ENTERING THE
UNITED STATES OR AT ANY TIME THEREAFTER, HE WAS A MEMBER OF OR
AFFILIATED WITH AN ORGANIZATION ADVOCATING THE FORCEFUL OVERTHROW OF
THE GOVERNMENT.  IT THUS WAS NO LONGER NECESSARY THAT THE ALIEN BE AN
AFFILIATE OR MEMBER AT THE TIME OF THE ISSUANCE OF THE WARRANT OF
ARREST.  IN THE WORDS OF THE AUTHOR OF THIS AMENDMENT:  "IT IS MY JOY
TO ANNOUNCE THAT THIS BILL WILL DO, IN A PERFECTLY LEGAL AND
CONSTITUTIONAL MANNER, WHAT THE BILL SPECIFICALLY AIMED AT THE
DEPORTATION OF HARRY BRIDGES SEEKS TO ACCOMPLISH.  THIS BILL CHANGES
THE LAW SO THAT THE DEPARTMENT OF JUSTICE SHOULD NOW HAVE LITTLE
TROUBLE IN DEPORTING HARRY BRIDGES AND ALL OTHERS OF SIMILAR ILK."  86
CONG. REC. 9031. 

THIS PROPHECY WAS QUICKLY REALIZED, TO THE SATISFACTION OF THE VAST
INTERESTS ARRAYED AGAINST BRIDGES.  A WARRANT FOR HIS ARREST AND
DEPORTATION UNDER THIS NEW STATUTORY PROVISION WAS ISSUED IN 1941,
FOLLOWED BY A HEARING BEFORE ANOTHER SPECIAL EXAMINER, JUDGE SEARS. 
EVIDENCE WAS PRESENTED BY THE GOVERNMENT ON PRACTICALLY THE SAME
MATTERS AS IN THE FIRST PROCEEDING.  THIS TIME, HOWEVER, THE EXAMINER
DISCOVERED SUFFICIENT GROUNDS FOR RECOMMENDING DEPORTATION.  ALTHOUGH
THE BOARD OF IMMIGRATION APPEALS UNANIMOUSLY REJECTED THIS
RECOMMENDATION, THE ATTORNEY GENERAL, WITHOUT HOLDING A HEARING OR
LISTENING TO ARGUMENT, REVERSED THE BOARD AND ORDERED THE DEPORTATION
OF BRIDGES. 

IT IS NOT SURPRISING THAT THE BACKGROUND AND INTENSITY OF THIS EFFORT
TO DEPORT ONE INDIVIDUAL SHOULD RESULT IN A SINGULAR LACK OF DUE
PROCESS OF LAW.  MUCH OF THE EVIDENCE PRESENTED BY THE GOVERNMENT HAS
BEEN DESCRIBED BY THE ATTORNEY GENERAL AS "UNTRUSTWORTHY,
CONTRADICTORY, OR UNRELIABLE."  THE REMAINING GOVERNMENT EVIDENCE CAN
SCARCELY BE DESCRIBED IN MORE GENEROUS TERMS.  AND THE COURT'S OPINION,
IN WHICH I JOIN, DEMONSTRATES THAT THE PROCEEDING HAD ITS VALIDITY
FURTHER UNDERMINED BY A MISCONCEPTION OF THE STATUTORY TERM
"AFFILIATION" AND BY THE IMPROPER USE OF HEARSAY STATEMENTS. 

BUT THE CONSTITUTION HAS BEEN MORE THAN A SILENT, ANEMIC WITNESS TO
THIS PROCEEDING.  IT HAS NOT STOOD IDLY BY WHILE ONE OF ITS SUBJECTS IS
BEING EXCOMMUNICATED FROM THIS NATION WITHOUT THE SLIGHTEST PROOF THAT
HIS PRESENCE CONSTITUTES A CLEAR AND PRESENT DANGER TO THE PUBLIC
WELFARE.  NOR HAS IT REMAINED ALOOF WHILE THIS INDIVIDUAL IS BEING
DEPORTED, RESULTING IN THE LOSS "OF ALL THAT MAKES LIFE WORTH LIVING,"
NG FUNG HO V. WHITE, 259 U.S. 276, 284, ON A FINDING THAT, REGARDLESS
OF HIS PERSONAL BELIEFS, HE WAS A MEMBER AND AN AFFILIATE OF AN
ORGANIZATION ADVOCATING THE FORCEFUL OVERTHROW OF THE GOVERNMENT.  WHEN
THE IMMUTABLE FREEDOMS GUARANTEED BY THE BILL OF RIGHTS HAVE BEEN SO
OPENLY AND CONCEDEDLY IGNORED, THE FULL WRATH OF CONSTITUTIONAL
CONDEMNATION DESCENDS UPON THE ACTION TAKEN BY THE GOVERNMENT.  AND
ONLY BY EXPRESSING THAT WRATH CAN WE GIVE FORM AND SUBSTANCE TO "THE
GREAT, THE INDISPENSABLE DEMOCRATIC FREEDOMS," THOMAS V. COLLINS, 323
U.S. 516, 530, TO WHICH THIS NATION IS DEDICATED. 

THE UNCONSTITUTIONALITY OF THE STATUTE IN ISSUE AND THE INVALIDITY OF
THE PROCEEDING BROUGHT PURSUANT THERETO ARE OBVIOUS.  AS CONSTRUED AND
APPLIED IN THIS CASE, THE STATUTE CALLS FOR THE DEPORTATION OF HARRY
BRIDGES AFTER A FAIR HEARING IN WHICH "SOME" EVIDENCE IS ESTABLISHED
THAT HE WAS A MEMBER OR AFFILIATE OF AN ORGANIZATION ADVOCATING THE
FORCEFUL OVERTHROW OF THE GOVERNMENT.  SUCH A PROVISION RESTS ITS CLAIM
TO LEGALITY UPON ONE BASIC ASSUMPTION, AN ASSUMPTION THAT IS OBNOXIOUS
AND INTOLERABLE WHEN VIEWED IN LIGHT OF THE SUPERNAL HERITAGE AND
IDEALS OF THIS NATION. 

THIS ASSUMPTION UNDERLYING THE STATUTE IS THAT THE "PLENARY" POWER OF
CONGRESS TO DEPORT RESIDENT ALIENS IS UNAFFECTED BY THE GUARANTEE OF
SUBSTANTIVE FREEDOMS CONTAINED IN THE BILL OF RIGHTS.  IN OTHER WORDS,
AS THE GOVERNMENT HAS URGED BEFORE US, THE DEPORTATION POWER OF
CONGRESS "IS UNAFFECTED BY CONSIDERATIONS WHICH IN OTHER CONTEXTS MIGHT
JUSTIFY THE STRIKING DOWN OF LEGISLATION AS AN UNWARRANTED ABRIDGMENT
OF CONSTITUTIONALLY GUARANTEED RIGHTS OF FREE SPEECH AND ASSOCIATION." 
FROM THIS PREMISE IT FOLLOWS THAT CONGRESS MAY CONSTITUTIONALLY DEPORT
ALIENS FOR WHATEVER REASONS IT MAY CHOOSE, LIMITED ONLY BY THE DUE
PROCESS REQUIREMENT OF A FAIR HEARING.  THE COLOR OF THEIR SKIN, THEIR
RACIAL BACKGROUND OR THEIR RELIGIOUS FAITH MAY CONCEIVABLY BE USED AS
THE BASIS FOR THEIR BANISHMENT.  AN ALIEN WHO MERELY WRITES OR UTTERS A
STATEMENT CRITICAL OF THE GOVERNMENT, OR WHO SUBSCRIBES TO AN UNPOPULAR
POLITICAL OR SOCIAL PHILOSOPHY, OR WHO AFFILIATES WITH A LABOR UNION,
OR WHO DISTRIBUTES RELIGIOUS HANDBILLS ON THE STREET CORNER, MAY BE
SUBJECTED TO THE LEGISLATIVE WHIM OF DEPORTATION. 

I AM UNABLE TO BELIEVE THAT THE CONSTITUTION SANCTIONS THAT
ASSUMPTION OR THE CONSEQUENCES THAT LOGICALLY AND INEVITABLY FLOW FROM
ITS APPLICATION.  THE POWER TO EXCLUDE AND DEPORT ALIENS IS ONE
SPRINGING OUT OF THE INHERENT SOVEREIGNTY OF THE UNITED STATES. 
CHINESE EXCLUSION CASE, 130 U.S. 581.  SINCE AN ALIEN OBVIOUSLY BRINGS
WITH HIM NO CONSTITUTIONAL RIGHTS, CONGRESS MAY EXCLUDE HIM IN THE
FIRST INSTANCE FOR WHATEVER REASON IT SEES FIT.  TURNER V. WILLIAMS,
194 U.S. 279.  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.  INDEED, THIS COURT HAS
PREVIOUSLY AND EXPRESSLY RECOGNIZED THAT HARRY BRIDGES, THE ALIEN,
POSSESSES THE RIGHT TO FREE SPEECH AND FREE PRESS AND THAT THE
CONSTITUTION WILL DEFEND HIM IN THE EXERCISE OF THAT RIGHT.  BRIDGES V.
CALIFORNIA, 314 U.S. 252. 

SINCE RESIDENT ALIENS HAVE CONSTITUTIONAL RIGHTS, IT FOLLOWS THAT
CONGRESS MAY NOT IGNORE THEM IN THE EXERCISE OF ITS "PLENARY" POWER OF
DEPORTATION.  AS THIS COURT SAID IN A PREVIOUS EXCLUSION CASE, "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."  JAPANESE IMMIGRANT CASE,
189 U.S. 86, 100.  NO LESS MAY A STATUTE ON ITS FACE DISREGARD THE
BASIC FREEDOMS THAT THE CONSTITUTION GUARANTEES TO RESIDENT ALIENS. 
THE CHIEF JUSTICE, IN HIS DISSENTING OPINION IN JONES V. OPELIKA, 316
U.S. 584, 609, HAS STATED THAT "THE FIRST AMENDMENT PROHIBITS ALL LAWS
ABRIDGING FREEDOM OF PRESS AND RELIGION, NOT MERELY SOME LAWS OR ALL
EXCEPT TAX LAWS."  BY THE SAME TOKEN, THE FIRST AMENDMENT AND OTHER
PORTIONS OF THE BILL OF RIGHTS MAKE NO EXCEPTION IN FAVOR OF
DEPORTATION LAWS OR LAWS ENACTED PURSUANT TO A "PLENARY" POWER OF THE
GOVERNMENT.  HENCE THE VERY PROVISIONS OF THE CONSTITUTION NEGATIVE THE
PROPOSITION THAT CONGRESS, IN THE EXERCISE OF A "PLENARY" POWER, MAY
OVERRIDE THE RIGHTS OF THOSE WHO ARE NUMBERED AMONG THE BENEFICIARIES
OF THE BILL OF RIGHTS. 

ANY OTHER CONCLUSION WOULD MAKE OUR CONSTITUTIONAL SAFEGUARDS
TRANSITORY AND DISCRIMINATORY IN NATURE.  THUS THE GOVERNMENT WOULD BE
PRECLUDED FROM ENJOINING OR IMPRISONING AN ALIEN FOR EXERCISING HIS
FREEDOM OF SPEECH.  BUT THE GOVERNMENT AT THE SAME TIME WOULD BE FREE,
FROM A CONSTITUTIONAL STANDPOINT, TO DEPORT HIM FOR EXERCISING THAT
VERY SAME FREEDOM.  THE ALIEN WOULD BE FULLY CLOTHED WITH HIS
CONSTITUTIONAL RIGHTS WHEN DEFENDING HIMSELF IN A COURT OF LAW, BUT HE
WOULD BE STRIPPED OF THOSE RIGHTS WHEN DEPORTATION OFFICIALS ENCIRCLE
HIM.  I CANNOT AGREE THAT THE FRAMERS OF THE CONSTITUTION MEANT TO MAKE
SUCH AN EMPTY MOCKERY OF HUMAN FREEDOM. 

SINCE THE BASIC ASSUMPTION OF THE STATUTE IS FALSE, THE BILL OF
RIGHTS MUST BE BROUGHT TO BEAR.  AND WHEN THAT IS DONE SEVERAL
CONSTITUTIONAL INFIRMITIES ARE APPARENT IN THIS LEGISLATION.  SEE 52
YALE L.J. 108.  AS SHOWN BY THE RECORD IN THIS CASE, HARRY BRIDGES HAS
DONE NO MORE THAN EXERCISE HIS PERSONAL RIGHT TO FREE SPEECH AND
ASSOCIATION.  YET UPON PROOF OF THAT FACT, HE WOULD BE SUBJECT TO
DEPORTATION UNDER THE STATUTE.  THE INVALIDITY OF LEGISLATION OF SUCH
NATURE IS INESCAPABLE. 

FIRST.  THE DEPORTATION STATUTE COMPLETELY IGNORES THE TRADITIONAL
AMERICAN DOCTRINE REQUIRING PERSONAL GUILT RATHER THAN GUILT BY
ASSOCIATION OR IMPUTATION BEFORE A PENALTY OR PUNISHMENT IS INFLICTED. 

THE STATUTE DOES NOT REQUIRE THAT AN ALIEN, TO BE DEPORTABLE, MUST
PERSONALLY ADVOCATE OR BELIEVE IN THE FORCEFUL OVERTHROW OF THE
GOVERNMENT.  IT IS ENOUGH IF HE IS A MEMBER OR AN AFFILIATE OF AN
ORGANIZATION WHICH ADVOCATES SUCH A DOCTRINE.  AND IN THIS CASE THE
GOVERNMENT ADMITS THAT IT HAS NEITHER CLAIMED NOR ATTEMPTED TO PROVE
THAT HARRY BRIDGES PERSONALLY ADVOCATED OR BELIEVED IN THE PROSCRIBED
DOCTRINE.  THERE IS NO EVIDENCE, MOREOVER, THAT HE UNDERSTOOD THE
COMMUNIST PARTY TO ADVOCATE VIOLENT REVOLUTION OR THAT HE EVER
COMMITTED OR TRIED TO COMMIT AN OVERT ACT DIRECTED TO THE REALIZATION
OF SUCH AN AIM. 

THE DOCTRINE OF PERSONAL GUILT IS ONE OF THE MOST FUNDAMENTAL
PRINCIPLES OF OUR JURISPRUDENCE.  IT PARTAKES OF THE VERY ESSENCE OF
THE CONCEPT OF FREEDOM AND DUE PROCESS OF LAW.  SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118, 154.  IT PREVENTS THE PERSECUTION OF THE INNOCENT
FOR THE BELIEFS AND ACTIONS OF OTHERS.  SEE CHAFEE, FREE SPEECH IN THE
UNITED STATES (1941), PP. 472-475. 

YET THE DEPORTATION STATUTE ON ITS FACE AND IN ITS PRESENT
APPLICATION FLATLY DISREGARDS THIS RULE.  IT CONDEMNS AN ALIEN TO EXILE
FOR BELIEFS AND TEACHINGS TO WHICH HE MAY NOT PERSONALLY SUBSCRIBE AND
OF WHICH HE MAY NOT EVEN BE AWARE.  THIS FACT ALONE IS ENOUGH TO
INVALIDATE THE LEGISLATION.  CF. DEJONGE V. OREGON, 299 U.S. 353;
HERNDON V. LOWRY, 301 U.S. 242; WHITNEY V. CALIFORNIA, 274 U.S. 357. 

IT IS NO ANSWER THAT A DEPORTATION PROCEEDING IS TECHNICALLY NON
CRIMINAL IN NATURE AND THAT A DEPORTABLE ALIEN IS NOT ADJUDGED GUILTY
OF A "CRIME."  THOSE ARE OVER-SUBTLE NICETIES THAT SHED THEIR
SIGNIFICANCE WHEN WE ARE CONCERNED WITH SAFEGUARDING THE IDEALS OF THE
BILL OF RIGHTS.  THE IMPACT OF DEPORTATION UPON THE LIFE OF AN ALIEN IS
OFTEN AS GREAT IF NOT GREATER THAN THE IMPOSITION OF A CRIMINAL
SENTENCE.  A DEPORTED ALIEN MAY LOSE HIS FAMILY, HIS FRIENDS AND HIS
LIVELIHOOD FOREVER.  RETURN TO HIS NATIVE LAND MAY RESULT IN POVERTY,
PERSECUTION AND EVEN DEATH.  THERE IS THUS NO JUSTIFIABLE REASON FOR
DISCARDING THE DEMOCRATIC AND HUMANE TENETS OF OUR LEGAL SYSTEM AND
DESCENDING TO THE PRACTICES OF DESPOTISM IN DEALING WITH DEPORTATION. 

SECOND.  THE DEPORTATION STATUTE IS FURTHER INVALID UNDER THE "CLEAR
AND PRESENT DANGER" TEST ENUNCIATED IN SCHENCK V. UNITED STATES, 249
U.S. 47.    IT IS CLEAR THAT IF AN ORGANIZATION ADVOCATED AND WAS
CAPABLE OF CAUSING IMMEDIATE AND SERIOUS VIOLENCE IN ORDER TO OVERTHROW
THE GOVERNMENT AND IF AN ALIEN MEMBER OR AFFILIATE PERSONALLY JOINED IN
SUCH ADVOCACY A CLEAR AND PRESENT DANGER TO THE PUBLIC WELFARE WOULD BE
DEMONSTRATED AND THE GOVERNMENT WOULD THEN HAVE THE POWER TO DEPORT OR
OTHERWISE PUNISH THE ALIEN.  BUT THE STATUTE IN ISSUE MAKES NO ATTEMPT
TO REQUIRE SUCH PROOF.  IT IS APPARENTLY SATISFIED IF AN ORGANIZATION
AT ANY TIME SINCE THE ALIEN BECAME A MEMBER OR AFFILIATE ADVOCATED AS A
THEORETICAL DOCTRINE THE USE OF FORCE UNDER HYPOTHETICAL CONDITIONS AT
SOME INDEFINITE FUTURE TIME.  IT IS IMMATERIAL WHETHER THE ORGANIZATION
PRESENTLY ADVOCATES SUCH AN ABSTRACT DOCTRINE OR WHETHER THE ALIEN IS
PRESENTLY A MEMBER OR AN AFFILIATE OR WHETHER HE PRESENTLY ADHERES TO
THE ORGANIZATION'S VIEWS.  IT MATTERS NOT THAT AN ALIEN MEMBER NEVER
KNEW OR UNDERSTOOD THE ORGANIZATION'S ILLEGAL AIM OR THAT HE MAY HAVE
RESIGNED IN PROTEST UPON LEARNING OF IT.  IT APPEARS TO BE ENOUGH THAT
THE ORGANIZATION AT ONE TIME ADVOCATED THE UNLAWFUL DOCTRINE AND THAT
THE ALIEN WAS A MEMBER OR AFFILIATE AT SOME TIME IN THE PAST, EVEN IF
FOR NO LONGER THAN ONE MINUTE.  86 CONG. REC. 9032.  IT IS NOT EVEN
CLEAR THAT THE ORGANIZATION'S ADVOCACY OF VIOLENT REVOLUTION AND AN
ALIEN'S MEMBERSHIP OR AFFILIATION MUST COINCIDE IN POINT OF TIME.  SUCH
A STATUTE FAILS TO SATISFY ANY RATIONAL OR REALISTIC TEST.  IT
CERTAINLY DOES NOT PRETEND TO REQUIRE PROOF OF A CLEAR AND PRESENT
DANGER SO AS PROPERLY TO NEGATIVE THE PRESUMPTION THAT INDIVIDUAL
RIGHTS ARE SUPREME UNDER THE CONSTITUTION.  IT THEREFORE FOUNDERS IN
CONSTITUTIONAL WATERS. 

THE GOVERNMENT FRANKLY CONCEDES THAT THIS CASE WAS NOT TRIED OR
DECIDED BELOW ON THE THEORY THAT THE "CLEAR AND PRESENT DANGER" TEST
HAD ANY APPLICATION.  PROOF OF BRIDGES' MEMBERSHIP AND AFFILIATION WITH
THE COMMUNIST PARTY WAS SHOWN BY SOME OF THE MOST TENUOUS AND
UNRELIABLE EVIDENCE EVER TO BE INTRODUCED IN AN ADMINISTRATIVE OR LEGAL
PROCEEDING.  PROOF THAT THE COMMUNIST PARTY ADVOCATES THE THEORETICAL
OR ULTIMATE OVERTHROW OF THE GOVERNMENT BY FORCE WAS DEMONSTRATED BY
RESORT TO SOME RATHER ANCIENT PARTY DOCUMENTS, CERTAIN OTHER GENERAL
COMMUNIST LITERATURE AND ORAL CORROBORATING TESTIMONY OF GOVERNMENT
WITNESSES.  NOT THE SLIGHTEST EVIDENCE WAS INTRODUCED TO SHOW THAT
EITHER BRIDGES OR THE COMMUNIST PARTY SERIOUSLY AND IMMINENTLY
THREATENS TO UPROOT THE GOVERNMENT BY FORCE OR VIOLENCE. 

DEPORTATION, WITH ALL ITS GRAVE CONSEQUENCES, SHOULD NOT BE
SANCTIONED ON SUCH WEAK AND UNCONVINCING PROOF OF A REAL AND IMMINENT
THREAT TO OUR NATIONAL SECURITY.  CONGRESS HAS AMPLE POWER TO PROTECT
THE UNITED STATES FROM INTERNAL REVOLUTION AND ANARCHY WITHOUT
ABANDONING THE IDEALS OF FREEDOM AND TOLERANCE.  WE AS A NATION LOSE
PART OF OUR GREATNESS WHENEVER WE DEPORT OR PUNISH THOSE WHO MERELY
EXERCISE THEIR FREEDOMS IN AN UNPOPULAR THOUGH INNOCUOUS MANNER.  THE
STRENGTH OF THIS NATION IS WEAKENED MORE BY THOSE WHO SUPPRESS THE
FREEDOM OF OTHERS THAN BY THOSE WHO ARE ALLOWED FREELY TO THINK AND ACT
AS THEIR CONSCIENCES DICTATE. 

OUR CONCERN IN THIS CASE DOES NOT HALT WITH THE FATE OF HARRY
BRIDGES, AN ALIEN WHOSE CONSTITUTIONAL RIGHTS HAVE BEEN GROSSLY
VIOLATED.  THE SIGNIFICANCE OF THIS CASE IS FARREACHING.  THE LIBERTIES
OF THE 3,500,000 OTHER ALIENS IN THIS NATION ARE ALSO AT STAKE.  MANY
OF THESE ALIENS, LIKE MANY OF OUR FOREBEARS, WERE DRIVEN FROM THEIR
ORIGINAL HOMELANDS BY BIGOTED AUTHORITIES WHO DENIED THE EXISTENCE OF
FREEDOM AND TOLERANCE.  IT WOULD BE A DISMAL PROSPECT FOR THEM TO
DISCOVER THAT THEIR FREEDOM IN THE UNITED STATES IS DEPENDENT UPON
THEIR CONFORMITY TO THE POPULAR NOTIONS OF THE MOMENT.  BUT THEY NEED
NOT MAKE THAT DISCOVERY.  THE BILL OF RIGHTS BELONGS TO THEM AS WELL AS
TO ALL CITIZENS.  IT PROTECTS THEM AS LONG AS THEY RESIDE WITHIN THE
BOUNDARIES OF OUR LAND.  IT PROTECTS THEM IN THE EXERCISE OF THE GREAT
INDIVIDUAL RIGHTS NECESSARY TO A SOUND POLITICAL AND ECONOMIC
DEMOCRACY.  NEITHER INJUNCTION, FINE, IMPRISONMENT NOR DEPORTATION CAN
BE UTILIZED TO RESTRICT OR PREVENT THE EXERCISE OF INTELLECTUAL
FREEDOM.  ONLY BY ZEALOUSLY GUARDING THE RIGHTS OF THE MOST HUMBLE, THE
MOST UNORTHODOX AND THE MOST DESPISED AMONG US CAN FREEDOM FLOURISH AND
ENDURE IN OUR LAND. 

MR. CHIEF JUSTICE STONE. 

MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER AND I THINK THAT THE
DEPORTATION ORDER SHOULD BE SUSTAINED AND THE JUDGMENT BELOW AFFIRMED. 

THIS CASE PRESENTS NO NOVEL QUESTION.  UNDER OUR CONSTITUTION AND
LAWS, CONGRESS HAS ITS FUNCTIONS, THE ATTORNEY GENERAL HIS, AND THE
COURTS THEIRS IN REGARD TO THE DEPORTATION OF ALIENS.  OUR FUNCTION IS
A VERY LIMITED ONE.  IN THIS CASE OUR DECISION TURNS ON THE APPLICATION
OF THE LONG-SETTLED RULE THAT IN REVIEWING THE FACT FINDINGS OF
ADMINISTRATIVE OFFICERS OR AGENCIES, COURTS ARE WITHOUT AUTHORITY TO
SET ASIDE THEIR FINDINGS IF THEY ARE SUPPORTED BY EVIDENCE.  THIS COURT
HAS NOT HERETOFORE DEPARTED FROM THAT RULE IN REVIEWING DEPORTATION
ORDERS UPON COLLATERAL ATTACK BY HABEAS CORPUS, TISI V. TOD, 264 U.S.
131; VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273 U.S. 103, 106;
COSTANZO V. TILLINGHAST, 287 U.S. 341, 343, AND CASES CITED, AND THERE
IS NO OCCASION FOR ITS DOING SO NOW. 

CONGRESS, IN THE EXERCISE OF ITS PLENARY POWER OVER THE DEPORTATION
OF ALIENS, HAS DIRECTED THE DEPORTATION OF ANY ALIEN WHO, AT THE TIME
OF HIS ENTRY INTO THE UNITED STATES OR AT ANY TIME THEREAFTER, HAS BEEN
A MEMBER OF OR AFFILIATED WITH "ANY ORGANIZATION, ASSOCIATION, SOCIETY,
OR GROUP, THAT BELIEVES IN, ADVISES, ADVOCATES, OR TEACHES  ...  THE
OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES
...  (OR) THAT WRITES, CIRCULATES, DISTRIBUTES, PRINTS, PUBLISHES, OR
DISPLAYS  ...  ANY WRITTEN OR PRINTED MATTER" ADVISING, ADVOCATING OR
TEACHING THE OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE
UNITED STATES.  SECS. 1 AND 2 OF THE ACT OF OCTOBER 16, 1918, C. 186,
40 STAT. 1012, AS AMENDED BY THE ACT OF JUNE 5, 1920, C. 251, 41 STAT.
1008-1009, AND THE ACT OF JUNE 28, 1940, C. 439, 54 STAT. 673, 8 U.S.C.
SEC. 137. 

CONGRESS HAS COMMITTED THE CONDUCT OF DEPORTATION PROCEEDINGS TO AN
ADMINISTRATIVE OFFICER, THE ATTORNEY GENERAL, WITH NO PROVISION FOR
DIRECT REVIEW OF HIS ACTION BY THE COURTS.  INSTEAD IT HAS PROVIDED
THAT HIS DECISION SHALL BE "FINAL," 8 U.S.C. SEC. 155, AS IT MAY
CONSTITUTIONALLY DO. ZAKONAITE V. WOLF, 226 U.S. 272, 275, AND CASES
CITED.  ONLY IN THE EXERCISE OF THEIR AUTHORITY TO ISSUE WRITS OF
HABEAS CORPUS, MAY COURTS INQUIRE WHETHER THE ATTORNEY GENERAL HAS
EXCEEDED HIS STATUTORY AUTHORITY OR ACTED CONTRARY TO LAW OR THE
CONSTITUTION.  BILOKUMSKY V. TOD, 263 U.S. 149, 153; VAJTAUER V.
COMMISSIONER OF IMMIGRATION, SUPRA.  AND WHEN THE AUTHORITY TO DEPORT
THE ALIEN TURNS ON A DETERMINATION OF FACT BY THE ATTORNEY GENERAL, THE
COURTS, AS WE HAVE SAID, ARE WITHOUT AUTHORITY TO DISTURB HIS FINDING
IF IT HAS THE SUPPORT OF EVIDENCE OF ANY PROBATIVE VALUE. 

IN THIS PROCEEDING, THE ATTORNEY GENERAL, FOLLOWING THE PRESCRIBED
PROCEDURE, ISSUED A WARRANT FOR THE ARREST OF PETITIONER, CHARGING THAT
AFTER HIS ENTRY INTO THE UNITED STATES, HE HAD BEEN A MEMBER OF AND
AFFILIATED WITH ORGANIZATIONS OF THE TYPE REFERRED TO IN THE PART OF
THE DEPORTATION STATUTE WE HAVE QUOTED.  THE ATTORNEY GENERAL, AS
AUTHORIZED BY THE APPLICABLE STATUTES AND REGULATIONS, APPOINTED THE
HONORABLE CHARLES B. SEARS, AN EXPERIENCED JUDGE FORMERLY OF THE COURT
OF APPEALS OF NEW YORK, TO ACT AS AN INSPECTOR TO HEAR EVIDENCE ON THE
CHARGES.  THE HEARINGS BEFORE JUDGE SEARS EXTENDED OVER A PERIOD OF
NEARLY THREE MONTHS, IN THE COURSE OF WHICH EVIDENCE WAS OFFERED BY THE
GOVERNMENT AND BY PETITIONER, WHO WAS REPRESENTED BY COUNSEL.  THE
EVIDENCE IS CONTAINED IN MORE THAN SEVENTY-FIVE HUNDRED TYPEWRITTEN
PAGES OF THE RECORD AND IN THREE HUNDRED AND FIFTY-NINE EXHIBITS.  THE
RECORD IN THIS COURT COVERS SOME SEVENTY-EIGHT HUNDRED PRINTED PAGES. 

AT THE CONCLUSION OF THE HEARINGS, JUDGE SEARS MADE HIS MEMORANDUM
DECISION, IN WHICH HE FOUND THAT THE COMMUNIST PARTY OF THE UNITED
STATES AND THE MARINE WORKERS' INDUSTRIAL UNION WERE, AT ALL RELEVANT
TIMES, EACH AN ORGANIZATION WHICH BELIEVED IN AND ADVOCATED THE
OVERTHROW BY FORCE AND VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES,
AND THAT THE COMMUNIST PARTY ALSO WROTE, CIRCULATED, DISTRIBUTED,
PRINTED, PUBLISHED AND DISPLAYED PRINTED MATTER ADVISING, ADVOCATING OR
TEACHING THE OVERTHROW BY FORCE AND VIOLENCE OF THE GOVERNMENT OF THE
UNITED STATES.  THOSE FINDINGS ARE NOT CHALLENGED HERE.  JUDGE SEARS
ALSO FOUND THAT PETITIONER WAS SUBJECT TO DEPORTATION, AND RECOMMENDED
THAT HE BE DEPORTED, ON TWO SEPARATE AND INDEPENDENT GROUNDS:  (A) THAT
HE WAS A MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES, AND (B)
THAT HE WAS AFFILIATED WITH THE COMMUNIST PARTY AND WITH THE MARINE
WORKERS' INDUSTRIAL UNION, WHICH WAS A PART OF THE COMMUNIST PARTY OF
THE UNITED STATES. 

AS WE ARE OF OPINION THAT THE FINDING OF BRIDGES' MEMBERSHIP IN THE
COMMUNIST PARTY, STANDING ALONE, SUPPORTS THE DEPORTATION ORDER, AND
THAT THE FINDING IS SUPPORTED BY EVIDENCE, WE DEEM IT UNNECESSARY TO
CONSIDER OTHER CONTENTIONS TO WHICH THE COURT'S OPINION IS PRINCIPALLY
DIRECTED.  THE EVIDENCE OF MEMBERSHIP IS OF TWO KINDS, AND MAY BE
BRIEFLY SUMMARIZED.  IT CONSISTS OF BACKGROUND TESTIMONY OF NUMEROUS
WITNESSES, MUCH OF IT UNCONTRADICTED, WHICH JUDGE SEARS FOUND TO BE
TRUE AND WHICH SHOWED THAT BRIDGES HAD LONG AND CONTINUOUSLY ASSOCIATED
WITH COMMUNISTS AND COMMUNIST PARTY ORGANIZATIONS, AND HAD EXHIBITED A
SYMPATHETIC ATTITUDE TOWARD THE COMMUNIST PARTY AND ITS PROGRAM.  MORE
IMPORTANT AND DECISIVE OF THE ISSUE NOW BEFORE US IS EVIDENCE
CONCERNING BRIDGES' INTERVIEWS WITH TWO WITNESSES WHICH, IF TRUE, AS TO
EITHER INTERVIEW, SHOWED THAT BRIDGES, BOTH BY HIS WORDS AND CONDUCT,
PROVED HIS MEMBERSHIP IN THE PARTY. 

ONE WITNESS, LUNDEBERG, A PROMINENT LABOR LEADER, TESTIFIED THAT HE
HAD DINED AT BRIDGES' HOME IN 1935; THAT BRIDGES, ALONG WITH A MEMBER
OF THE COMMUNIST PARTY WHO WAS ALSO PRESENT, URGED THE WITNESS TO JOIN
THE COMMUNIST PARTY; AND THAT THIS TOOK PLACE IN THE PRESENCE OF TWO
MEMBERS OF BRIDGES' FAMILY AND HIS SECRETARY.  LUNDEBERG TESTIFIED THAT
BRIDGES SAID ON THAT OCCASION:  "YOU DON'T HAVE TO BE AFRAID BECAUSE
NOBODY HAS TO KNOW YOU ARE A MEMBER OF THE COMMUNIST PARTY  ... YOU
DON'T HAVE TO BE AFRAID BECAUSE I AM ONE TOO ...  I AM A MEMBER OF THE
COMMUNIST PARTY."  BRIDGES DENIED MAKING THESE STATEMENTS, ALTHOUGH HE
ADMITTED THAT THE WITNESS HAD DINED WITH HIM AT HIS HOME IN 1935 WHEN
SEVERAL MEMBERS OF HIS FAMILY WERE PRESENT.  THE OTHERS SAID TO BE
PRESENT FAILED TO TESTIFY AND THEIR ABSENCE FROM THE WITNESS STAND IS
UNEXPLAINED. 

THE OTHER WITNESS, O'NEIL, WHO WAS THE PUBLICITY DIRECTOR OF THE
C.I.O., A MEMBER OF THE COMMUNIST PARTY, AND AN INTIMATE OF BRIDGES,
AND WHO SHARED OFFICES WITH HIM AFTER 1936, MADE A STATEMENT TO MEMBERS
OF THE FEDERAL BUREAU OF INVESTIGATION THAT IN 1937 HE SAW BRIDGES IN
HIS OFFICE PASTING ASSESSMENT STAMPS (RECEIPTS FOR PAYMENT OF COMMUNIST
PARTY DUES) IN A COMMUNIST PARTY BOOK, WHICH THE WITNESS WAS CERTAIN
WAS PETITIONER'S MEMBERSHIP BOOK IN THE PARTY, AND THAT BRIDGES ON
SEVERAL OCCASIONS REMINDED THE WITNESS THAT HE HAD NOT BEEN ATTENDING
PARTY MEETINGS.  THE ACCURACY OF THE STATEMENT, AS GIVEN IN EVIDENCE,
WAS VERIFIED BY THE STENOGRAPHER WHO, TESTIFYING AS A WITNESS, READ THE
STATEMENT FROM HER STENOGRAPHIC NOTES.  MAJOR SCHOFIELD, A SPECIAL
ASSISTANT TO THE ATTORNEY GENERAL, TESTIFIED THAT O'NEIL HAD REPEATED
SUBSTANTIALLY THE SAME STATEMENT TO HIM IN THE PRESENCE OF TWO
WITNESSES.  O'NEIL, WHO HAD DEMONSTRATED HIS HOSTILITY TO THE
GOVERNMENT AND HIS UNWILLINGNESS TO TESTIFY, TESTIFIED, WHEN HE WAS
CALLED AS A GOVERNMENT WITNESS, THAT HE HAD MADE TWO STATEMENTS AT THE
TIMES AND IN THE MANNER INDICATED, AND THAT THEY WERE TRUE STATEMENTS,
BUT HE DENIED THAT HE HAD SAID THAT BRIDGES WAS A COMMUNIST OR THAT HE
HAD SEEN HIM PASTING ASSESSMENT STAMPS IN A COMMUNIST PARTY BOOK. 

JUDGE SEARS, WHO SAW AND HEARD THE WITNESSES, RULED THAT THE PRIOR
STATEMENTS OF O'NEIL WERE ADMISSIBLE.  HE DECLARED IN HIS DECISION THAT
HE BELIEVED AND ACCEPTED AS TRUE LUNDEBERG'S TESTIMONY AND O'NEIL'S
PRIOR STATEMENTS; THAT EACH SUPPORTED HIS FINDINGS THAT BRIDGES WAS A
PARTY MEMBER; AND THAT EACH WAS CORROBORATED BY BRIDGES' ASSOCIATIONS
WITH COMMUNIST PARTY MEMBERS AND ORGANIZATIONS AS WELL AS BY OTHER
CIRCUMSTANCES, APPEARING IN THE TESTIMONY, AND WHICH IT IS UNNECESSARY
TO DETAIL.  ON REVIEW THE BOARD OF IMMIGRATION APPEALS PROPOSED
FINDINGS, WHICH WOULD HAVE REJECTED THE FINDINGS OF JUDGE SEARS AS
UNSUPPORTED BY EVIDENCE.  THE ATTORNEY GENERAL DECLINED TO FOLLOW THE
RECOMMENDATIONS OF THE BOARD, BUT INSTEAD ADOPTED THE FINDINGS OF JUDGE
SEARS.  HE THEREFORE ORDERED PETITIONER'S DEPORTATION. 

ON THIS RECORD WE HAVE ONLY A SINGLE QUESTION TO DECIDE.  WAS THERE
SOME EVIDENCE SUPPORTING THE FINDINGS OF JUDGE SEARS AND THE ATTORNEY
GENERAL THAT BRIDGES WAS A MEMBER OF THE COMMUNIST PARTY?  IF THERE
WAS, THEN, AS WE HAVE SAID, WE HAVE NO FURTHER FUNCTION TO PERFORM AND
THE JUDGMENT MUST BE AFFIRMED.  TO DETERMINE THAT ISSUE WE NEED NOT
LOOK BEYOND THE TESTIMONY OF LUNDEBERG.  IF HIS TESTIMONY IS TO BE
BELIEVED, BRIDGES ADMITTED HIS MEMBERSHIP IN THE COMMUNIST PARTY IN
CIRCUMSTANCES WHICH CARRY CONVICTION OF THE TRUTH OF THE FACT
ADMITTED.  IT WAS FOR THE HEARING OFFICER, JUDGE SEARS, AND THE TRIER
OF FACT, THE ATTORNEY GENERAL, NOT THE COURTS, TO SAY WHETHER LUNDEBERG
WAS TO BE BELIEVED.  IN DECIDING THAT ISSUE, THE ADMINISTRATIVE
OFFICIALS COULD TAKE INTO ACCOUNT, AS THEY DID, THE FACTS THAT FOUR
PERSONS, ALL EVIDENTLY FRIENDLY TO BRIDGES, AND WHO ACCORDING TO THE
TESTIMONY WERE PRESENT AT THE INTERVIEW BETWEEN LUNDEBERG AND BRIDGES,
FAILED TO TESTIFY AND THAT BRIDGES' FAILURE TO CALL THEM AS WITNESSES
STANDS UNEXPLAINED.  INTERSTATE CIRCUIT V. UNITED STATES, 306 U.S. 208,
225-226, AND CASES CITED.    THE CONCLUSION WHICH THE TWO
ADMINISTRATIVE OFFICERS, CHARGED WITH FINDING THE FACTS, HAVE DRAWN
FROM THIS TESTIMONY, IS NOT TO BE BRUSHED ASIDE BY SAYING THAT THE
O'NEIL STATEMENTS ARE INADMISSIBLE AS EVIDENCE AND THAT THE TRIERS OF
FACT WOULD NOT OR MIGHT NOT HAVE ACCEPTED LUNDEBERG'S TESTIMONY WITHOUT
O'NEIL'S.  FOR NEITHER JUDGE SEARS NOR THE ATTORNEY GENERAL MADE
ACCEPTANCE OF THE ONE DEPENDENT ON ACCEPTANCE OF THE OTHER.  NOT A WORD
IN JUDGE SEARS' DECISION OR THAT OF THE ATTORNEY GENERAL SUGGESTS THAT
THEY DID NOT REGARD THE TESTIMONY OF LUNDEBERG OR THE STATEMENTS OF
O'NEIL, EACH WITHOUT THE OTHER, AS SUFFICIENT TO SUPPORT THEIR FINDING
THAT BRIDGES WAS A MEMBER OF THE COMMUNIST PARTY.  ON THE CONTRARY,
EACH DECLARED THAT HE ACCEPTED LUNDEBERG'S TESTIMONY AND O'NEIL'S
STATEMENTS, AND THAT HE BELIEVED EACH.  IT CAN HARDLY BE SAID, WITHOUT
MORE, THAT THEY DID NOT ACCEPT THE CREDITED EVIDENCE FURNISHED BY EACH
WITNESS AS SUFFICIENT IN ITSELF TO SUPPORT THEIR FINDING OF PARTY
MEMBERSHIP. 

BUT THE RECORD DOES NOT STOP THERE.  BOTH JUDGE SEARS AND THE
ATTORNEY GENERAL EXAMINED THE LUNDEBERG AND THE O'NEIL TESTIMONY
SEPARATELY AND MADE SEPARATE FINDINGS AS TO THE EFFECT TO BE GIVEN TO
EACH.  THE FINDINGS OF JUDGE SEARS, ADOPTED BY THE ATTORNEY GENERAL,
SHOW AFFIRMATIVELY THAT BOTH OFFICIALS ACCEPTED THE TESTIMONY OF
LUNDEBERG AND THE STATEMENTS OF O'NEIL, AS INDEPENDENTLY SUFFICIENT TO
SUPPORT THE FINDING THAT BRIDGES WAS A MEMBER OF THE COMMUNIST PARTY. 

LUNDEBERG'S TESTIMONY RELATED WHOLLY TO HIS INTERVIEW WITH BRIDGES IN
1935.  OF LUNDEBERG'S TESTIMONY, JUDGE SEARS SAID: 

"THE QUESTION FOR ME TO ANSWER IS WHETHER THE GOVERNMENT HAS
ESTABLISHED THAT BRIDGES ADMITTED TO LUNDEBERG AT THE TIME SPECIFIED
THAT HE WAS A MEMBER OF THE COMMUNIST PARTY.  IF HE DID SO ADMIT, IT IS
IN MY JUDGMENT CONCLUSIVE EVIDENCE OF THE FACT."  AFTER EXAMINING
LUNDEBERG'S TESTIMONY, AND CONSIDERING HIS DEMEANOR ON THE WITNESS
STAND, AND THE STRONGLY CORROBORATIVE CIRCUMSTANCE THAT OTHERS, WHO
WERE IN A POSITION TO DENY HIS TESTIMONY, HAD FAILED TO DO SO, JUDGE
SEARS SAID: 

"I REACH THE CONCLUSION, THEREFORE, THAT THE CONVERSATION DID TAKE
PLACE SUBSTANTIALLY AS TESTIFIED BY LUNDEBERG AND THAT BRIDGES DID THEN
AND THERE ADMIT TO LUNDEBERG THAT HE WAS A MEMBER OF THE COMMUNIST
PARTY."  THUS JUDGE SEARS CLEARLY STATED THAT LUNDEBERG'S TESTIMONY
ALONE WAS SUFFICIENT TO SUSTAIN A FINDING THAT PETITIONER WAS A MEMBER
OF THE COMMUNIST PARTY IN 1935. 

AT THE CONCLUSION OF HIS LIKE EXAMINATION OF O'NEIL'S STATEMENTS,
WHICH RELATED WHOLLY TO O'NEIL'S INTERVIEW WITH BRIDGES IN 1937, JUDGE
SEARS SAID: 

"HAVING THUS CONCLUDED THAT O'NEIL MADE THE STATEMENTS ATTRIBUTED TO
HIM BY MRS. SEGERSTROM (THE STENOGRAPHER) AND MAJOR SCHOFIELD, I AM
ALSO CONVINCED OF THEIR TRUTH.  I DO NOT OVERLOOK O'NEIL'S REPUDIATION
OF THE STATEMENTS OR BRIDGES' DENIALS OF THE FACTS RECITED THEREIN. 

"TAKING INTO CONSIDERATION ALL THE EVIDENCE BEARING ON THIS PHASE OF
THE PROCEEDING, I CONCLUDE THAT IT IS ESTABLISHED THAT THE NARRATIONS
CONTAINED IN O'NEIL'S STATEMENT TO MRS. SEGERSTROM AND IN HIS
CONVERSATION IN THE PRESENCE OF MAJOR SCHOFIELD ARE THE TRUTH, AND I
FIND THE FACT THAT IN ACCORDANCE THEREWITH THAT BRIDGES WAS IN 1937, A
MEMBER OF THE COMMUNIST PARTY." 

THE ATTORNEY GENERAL, AFTER A LIKE SEPARATE EXAMINATION OF THE
LUNDEBERG AND O'NEIL EVIDENCE, MADE IT PERFECTLY CLEAR THAT HE ACCEPTED
JUDGE SEARS' FINDINGS AS TO EACH.  HE TOO SAID THAT THE QUESTION AS TO
EACH WITNESS WAS A MATTER OF HIS CREDIBILITY, AND THAT HE BELIEVED THE
WITNESS, RATHER THAN PETITIONER, BECAUSE ON THIS POINT HE ACCEPTED
JUDGE SEARS' FINDING THAT THEY, AND NOT BRIDGES, WERE TO BE BELIEVED. 
THE CONCLUSION IS INESCAPABLE THAT THE ADMINSTRATIVE OFFICERS, WHOSE
CONCURRENT FINDINGS WE ARE BOUND TO ACCEPT IF SUPPORTED BY EVIDENCE,
DID NOT MAKE THEIR FINDING, FROM THE LUNDEBERG TESTIMONY, THAT BRIDGES
WAS A PARTY MEMBER IN 1935, DEPENDENT IN ANY DEGREE UPON THEIR FINDING,
FROM THE O'NEIL EVIDENCE, THAT BRIDGES WAS A MEMBER OF THE PARTY IN
1937, OR VICE VERSA.  THIS IS PARTICULARLY THE CASE SINCE LUNDEBERG'S
AND O'NEIL'S TESTIMONY WAS NOT CUMULATIVE AS TO MEMBERSHIP IN THE
COMMUNIST PARTY AT A SINGLE TIME; EACH TESTIFIED AS TO A DIFFERENT
TIME, SOME TWO YEARS APART. 

IT IS TRUE THAT THE ATTORNEY GENERAL, IN AN INTRODUCTORY PARAGRAPH IN
HIS DECISION, SAID: "HOWEVER, THE EVIDENCE OF TWO WITNESSES IS ACCEPTED
AS SHOWING THAT BRIDGES WAS A MEMBER OF THE PARTY.  IF THIS EVIDENCE IS
BELIEVED - AND JUDGE SEARS BELIEVED IT - THE DOUBT IS DECIDED."  BUT HE
WENT ON TO SAY THAT THE QUESTION WAS ONE OF CREDIBILITY, AND THAT JUDGE
SEARS, WHO SAW THE WITNESSES, WAS IN A FAR BETTER POSITION TO DECIDE
THAT QUESTION THAN THE REVIEW BOARD.  HE CONTINUED WITH A SEPARATE
DISCUSSION OF EACH WITNESS AND HIS TESTIMONY.  HE CONCLUDED AS TO EACH,
WITHOUT ANY REFERENCE TO THE OTHER, THAT THE WITNESS SHOULD BE BELIEVED
RATHER THAN BRIDGES, AND THAT JUDGE SEARS' CONCLUSION AS TO THE
CREDIBILITY OF EACH (WHICH WAS NOT DEPENDENT UPON HIS LIKE CONCLUSION
AS TO THE OTHER) SHOULD BE SUSTAINED. 

THE RECORD THUS CONCLUSIVELY SHOWS THAT BOTH JUDGE SEARS AND THE
ATTORNEY GENERAL FOUND, ON THE LUNDEBERG TESTIMONY ALONE, THAT BRIDGES
WAS A MEMBER OF THE COMMUNIST PARTY IN 1935.  THAT FINDING IS SUPPORTED
BY THE SWORN TESTIMONY OF LUNDEBERG, WHICH WAS ADMISSIBLE IN EVIDENCE
AND HAS PROBATIVE FORCE.  AS IT SUPPORTS THE CONCURRENT FINDINGS OF
JUDGE SEARS AND OF THE ATTORNEY GENERAL THAT BRIDGES WAS A PARTY MEMBER
AT THAT TIME, WE CANNOT REJECT THAT FINDING. 

WHAT WE HAVE SAID IS NOT TO BE TAKEN AS CONCEDING THAT O'NEIL'S PRIOR
STATEMENTS WERE IMPROPERLY ADMITTED.  THE COURT REJECTS THEM ON TWO
GROUNDS, THAT THEY WERE ADMITTED IN VIOLATION OF DEPARTMENTAL
REGULATIONS, AND THAT AS HEARSAY THEY WERE SO UNTRUSTWORTHY AS TO MAKE
THEM INADMISSIBLE IN ANY EVENT.  WE THINK NEITHER GROUND TENABLE. 

WE FIND NOTHING IN THE RULES AND REGULATIONS APPLICABLE TO
DEPORTATION CASES CALLING FOR THE EXCLUSION OF THE TESTIMONY CONCERNING
O'NEIL'S PRIOR STATEMENTS.  FN1  RULE 150.1 PROVIDES THAT STATEMENTS
SECURED DURING AN INVESTIGATION "WHICH ARE TO BE USED AS EVIDENCE"
SHALL BE MADE UNDER OATH, AND TAKEN DOWN IN WRITING AND SIGNED BY THE
PERSON INTERROGATED.  SUCH A STATEMENT IS DENOMINATED A "RECORDED
STATEMENT" BY THE RULE.  THE PURPOSE OF SECURING RECORDED STATEMENTS IS
OBVIOUSLY TO PRESERVE EVIDENCE IN A READILY AVAILABLE FORM, AND TO
INSURE THAT BEFORE A WARRANT OF ARREST IS ISSUED, THERE IS CREDIBLE
EVIDENCE THAT THE PERSON INVESTIGATED IS AN ALIEN AND IS SUBJECT TO
DEPORTATION.  IT PROVIDES NEITHER EXPLICITLY NOR BY IMPLICATION THAT
STATEMENTS OTHER THAN RECORDED STATEMENTS ARE INADMISSIBLE. 

IT IS TRUE THAT RULE 150.6 EXCLUDES "RECORDED" STATEMENTS UNLESS THE
MAKER OF THE STATEMENT IS UNAVAILABLE, REFUSES TO TESTIFY OR GIVES
INCONSISTENT TESTIMONY.  THESE RESTRICTIONS ON THE ADMISSIBILITY OF EX
PARTE RECORDED STATEMENTS HARDLY CAN BE STRAINED INTO A SWEEPING
EXCLUSION OF ALL UNRECORDED STATEMENTS, OTHERWISE ADMISSIBLE IN THE
PROCEEDING.  INDEED THE RULE ON ITS FACE QUITE CLEARLY PERMITS AN
INSPECTOR TO TESTIFY AS TO STATEMENTS MADE BY PERSONS WHO ARE
UNAVAILABLE, REFUSE TO TESTIFY OR GIVE TESTIMONY CONTRADICTORY TO A
PRIOR STATEMENT.  FN2  THE STATEMENTS AS TO WHICH THE INSPECTOR MAY
TESTIFY ARE NOT RESTRICTED BY THE TERMS OF THE RULE TO RECORDED
STATEMENTS.  HENCE JUDGE SEARS' RULING THAT MRS. SEGERSTROM AND MAJOR
SCHOFIELD COULD TESTIFY, UNDER OATH, THAT O'NEIL HAD MADE STATEMENTS TO
THEM IN CONTRADICTION WITH HIS TESTIMONY ON THE STAND, WAS NOT IN
CONFLICT WITH THE DEPARTMENTAL RULES. 

BUT IT IS SAID THAT THE EVIDENCE WAS IN ANY EVENT INADMISSIBLE.  THAT
THE EVIDENCE WOULD BE INADMISSIBLE IN A CRIMINAL PROCEEDING IS
IRRELEVANT HERE, SINCE A DEPORTATION PROCEEDING IS NOT A CRIMINAL
PROCEEDING.  BUGAJEWITZ V. ADAMS, 228 U.S. 585, 591 AND CASES CITED;
BILOKUMSKY V. TOD, SUPRA, 154-155; MAHLER V. EBY, 264 U.S. 32, 39.  AND
NO PRINCIPLE OF LAW HAS BEEN BETTER SETTLED THAN THAT THE TECHNICAL
RULES FOR THE EXCLUSION OF EVIDENCE, APPLICABLE IN TRIALS IN COURTS,
PARTICULARLY THE HEARSAY RULE, NEED NOT BE FOLLOWED IN DEPORTATION
PROCEEDINGS, BILOKUMSKY V. TOD, SUPRA, 157, AND CASES CITED; TISI V.
TOD, SUPRA, 133; VAJTAUER V. COMMISSIONER OF IMMIGRATION, SUPRA, 106,
MORE THAN IN OTHER ADMINISTRATIVE PROCEEDINGS.  CONSOLIDATED EDISON CO.
V. LABOR BOARD, 305 U.S. 197, 229-230, AND CASES CITED; OPP COTTON
MILLS V. ADMINISTRATOR, 312 U.S. 126, 155, AND CASES CITED.  THE ONLY
OBJECTIONS THAT CAN BE TAKEN TO THE EVIDENCE IN SUCH PROCEEDINGS ARE
NOT TO ITS ADMISSIBILITY, BUT TO ITS PROBATIVE VALUE.  SEE CONSOLIDATED
EDISON CO. V. LABOR BOARD, SUPRA, 230. 

JUDGE SEARS COMPLETELY AND ACCURATELY RULED ON THE ADMISSIBILITY OF
MRS. SEGERSTROM'S AND MAJOR SCHOFIELD'S TESTIMONY AS TO O'NEIL'S
EARLIER STATEMENTS TO THEM.  HE SAID: 

"WHATEVER MAY BE THE COMMON-LAW RULE IN RELATION TO THE RECEPTION OF
SUCH EVIDENCE AS THAT OF MRS. SEGERSTROM AND MAJOR SCHOFIELD, IN THIS
HEARING THE PARTIES ARE NOT CONFINED TO COMMON-LAW PROOF.  HEARSAY IS
ADMISSIBLE BUT THE CHARACTER OF SUCH EVIDENCE IS AN ELEMENT TO BE USED
IN ITS EVALUATION.  THE PRINCIPAL REASON FOR THE EXCLUSION OF HEARSAY
AT COMMON LAW IS THAT THE OPPORTUNITY FOR CROSS-EXAMINATION IS ABSENT. 
IN THE PRESENT CASE, THE SANCTION OF CROSS-EXAMINATION WAS PRESENT. 
ALTHOUGH THE STATEMENT GIVEN TO MRS. SEGERSTROM AND THE STATEMENT MADE
IN THE PRESENCE OF MAJOR SCHOFIELD WERE NOT UNDER OATH, THERE IS
SOMETHING EQUIVALENT, FOR O'NEIL TESTIFIED ON THE STAND THAT HE TOLD
THE TRUTH IN HIS INTERVIEW WITH THE AGENTS OF THE F.B.I. AND IN THE
INTERVIEW AT WHICH MAJOR SCHOFIELD WAS PRESENT.  THERE IS IN MY
OPINION, THEREFORE, EVERY REASON WHY THIS TESTIMONY SHOULD BE HEARD AND
CONSIDERED AS SUBSTANTIVE PROOF.  IT FALLS WITHIN THE DEFINITION OF
SUBSTANTIAL EVIDENCE HERETOFORE QUOTED." 

HE APPENDED IN A FOOTNOTE: 

"(1)  THIS VIEW IS FULLY SUPPORTED BY DEAN WIGMORE IN THE 3RD EDITION
OF HIS WORK (3 WIGMORE, EVIDENCE, 3RD ED., SECTION 1018(B)):  'IT DOES
NOT FOLLOW, HOWEVER, THAT PRIOR SELF-CONTRADICTIONS, WHEN ADMITTED, ARE
TO BE TREATED AS HAVING NO AFFIRMATIVE TESTIMONIAL VALUE, AND THAT ANY
SUCH CREDIT IS TO BE STRICTLY DENIED THEM IN THE MIND OF THE TRIBUNAL. 
THE ONLY GROUND FOR SO DOING WOULD BE THE HEARSAY RULE.  BUT THE THEORY
OF THE HEARSAY RULE IS THAT AN EXTRAJUDICIAL STATEMENT IS REJECTED
BECAUSE IT WAS MADE OUT OF COURT BY AN ABSENT PERSON NOT SUBJECT TO
CROSS-EXAMINATION....  HERE, HOWEVER, BY HYPOTHESIS THE WITNESS IS
PRESENT AND SUBJECT TO CROSS-EXAMINATION.  THERE IS AMPLE OPPORTUNITY
TO TEST HIM AS TO THE BASIS FOR HIS FORMER STATEMENT.  THE WHOLE
PURPOSE OF THE HEARSAY RULE HAS BEEN ALREADY SATISFIED.  HENCE THERE IS
NOTHING TO PREVENT THE TRIBUNAL FROM GIVING SUCH TESTIMONIAL CREDIT TO
THE EXTRAJUDICIAL STATEMENT AS IT MAY SEEM TO DESERVE.  PSYCHOLOGICALLY
OF COURSE, THE ONE STATEMENT IS AS USEFUL TO CONSIDER AS THE OTHER; AND
EVERYDAY EXPERIENCE OUTSIDE OF COURT-ROOMS IS IN ACCORD.'"  SEE ALSO
OPP COTTON MILLS V. ADMINISTRATOR, SUPRA, 155, AND CASES CITED.  FN3 

WE THINK THAT THE O'NEIL STATEMENTS WERE PROPERLY ADMITTED AND THAT,
INDEPENDENTLY OF THE LUNDEBERG TESTIMONY, THEY WARRANTED THE ATTORNEY
GENERAL'S FINDING THAT BRIDGES WAS A PARTY MEMBER. 

WITH INCREASING FREQUENCY THIS COURT IS CALLED UPON TO APPLY THE
RULE, WHICH IT HAS FOLLOWED FOR MANY YEARS, IN DEPORTATION CASES AS
WELL AS IN OTHER REVIEWS OF ADMINISTRATIVE PROCEEDINGS, THAT WHEN THERE
IS EVIDENCE MORE THAN A SCINTILLA, AND NOT UNBELIEVABLE ON ITS FACE, IT
IS FOR THE ADMINISTRATIVE OFFICER TO DETERMINE ITS CREDIBILITY AND
WEIGHT.  WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501, 508; TRADE
COMMISSION V. EDUCATION SOCIETY, 302 U.S. 112, 117; CONSOLIDATED EDISON
CO. V. LABOR BOARD, SUPRA, 229; LABOR BOARD V. NEVADA COPPER CO., 316
U.S. 105; MARSHALL V. PLETZ, 317 U.S. 383, 388; LABOR BOARD V. SOUTHERN
BELL CO., 319 U.S. 50, 60; MEDO CORP. V. LABOR BOARD, 321 U.S. 678, 681
682.  WE CANNOT RIGHTLY REJECT THE ADMINISTRATIVE FINDING HERE AND
ACCEPT, AS WE DO ALMOST EACH WEEK, PARTICULARLY IN OUR DENIALS OF
CERTIORARI, THE FINDINGS OF ADMINISTRATIVE AGENCIES WHICH REST ON THE
TENUOUS SUPPORT OF EVIDENCE FAR LESS PERSUASIVE THAN THE PRESENT RECORD
PRESENTS.  THAT IS ESPECIALLY THE CASE HERE, SINCE THE ATTORNEY
GENERAL, THE DISTRICT COURT AND THE COURT OF APPEALS HAVE ALL CONCURRED
IN THE CONCLUSION THAT THE EVIDENCE IS SUFFICIENT TO SUPPORT THE
FINDINGS.  CORYELL V. PHIPPS, 317 U.S. 406, 411; UNITED STATES V.
JOHNSON, 319 U.S. 503, 518; MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96,
99, AND CASES CITED; GOODYEAR CO. V. RAY-O-VAC CO., 321 U.S. 275, 278. 

PETITIONER HAS MADE A NUMBER OF OTHER ARGUMENTS WHICH THE COURT FINDS
IT UNNECESSARY TO DISCUSS.  WE THINK THAT THEY TOO ARE WITHOUT MERIT. 
WE WOULD AFFIRM THE JUDGMENT. 

FN1  THE OPINION OF THE COURT STATES THAT THE ATTORNEY GENERAL
CONCEDED THAT THE EVIDENCE WAS ADMITTED IN VIOLATION OF THE RULES.  THE
DEPARTMENT OF JUSTICE MADE NO SUCH CONCESSION IN THIS COURT.  AND WE
THINK THAT THE ATTORNEY GENERAL'S DECISION, WHICH IS QUOTED BY THE
COURT, WHEN FAIRLY READ, STATED NO MORE THAN THAT THE OBJECTION BASED
ON THE RULES CAME TOO LATE; THAT HAD THE QUESTION BEEN RAISED IN TIME,
COMPLIANCE WITH THE RULES WOULD HAVE BEEN REQUIRED (IT WAS NOT STATED
WHAT COMPLIANCE WITH THE RULES WOULD HAVE ENTAILED); THAT IF THE
INSPECTOR, AFTER DELIBERATION, THEN HAD REJECTED THE OBJECTION BASED ON
THE RULES, IT WOULD HAVE BEEN "APPROPRIATE" TO RAISE THE OBJECTIONS
BEFORE THE BOARD OF IMMIGRATION APPEALS; AND THAT THE RIGHT TO RAISE
THE OBJECTION HAD BEEN WAIVED.  PLAINLY HE DID NOT STATE OR SUGGEST
THAT OBJECTIONS TO THEIR ADMISSIBILITY WOULD HAVE BEEN VALID IF TIMELY
MADE, AND THERE WAS NO OCCASION FOR HIM TO CONSIDER THAT QUESTION. 
FN2  RULE 150.6(I) PROVIDES, IN PART:  "AN AFFIDAVIT OF AN INSPECTOR AS
TO THE STATEMENTS MADE BY THE ALIEN OR ANY OTHER PERSON DURING AN
INVESTIGATION MAY BE RECEIVED IN EVIDENCE, OTHERWISE THAN IN SUPPORT OF
THE TESTIMONY OF THE INSPECTOR, ONLY IF THE MAKER OF SUCH STATEMENT IS
UNAVAILABLE OR REFUSES TO TESTIFY AT THE WARRANT HEARING OR GIVES
TESTIMONY CONTRADICTING THE STATEMENT AND THE INSPECTOR IS UNAVAILABLE
TO TESTIFY IN PERSON." 

FN3  WIGMORE CONCEDES THAT HIS VIEWS HAVE NOT BEEN ACCEPTED BY THE
COURTS GENERALLY.  BUT, AS WE HAVE SAID, THE TECHNICAL RULES OF
EVIDENCE APPLIED BY THE COURTS ARE NOT APPLICABLE TO ADMINISTRATIVE
PROCEEDINGS.  CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197, 229
230, AND CASES CITED; OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126,
155, AND CASES CITED.  FOR THAT REASON THE CONSIDERATIONS SUGGESTED BY
WIGMORE ARE CONTROLLING HERE AND THE ATTORNEY GENERAL AND JUDGE SEARS
COULD RIGHTLY CONSIDER O'NEIL'S STATEMENTS AS PROOF OF THE MATTERS
STATED.  BILOKUMSKY V. TOD, 263 U.S. 149, 157, AND CASES CITED; TISI V.
TOD, 264 U.S. 131, 133; VAJTAUER V. COMMISSIONER OF IMMIGRATION, 273
U.S. 103, 106. 
..END :
















BARRETT LINE V. UNITED STATES, 326 U.S. 179 


NO. 630.  ARGUED APRIL 2, 1945.  - DECIDED JUNE 18, 1945.  - AFFIRMED IN
PART - REVERSED IN PART. 


1.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DENYING APPELLANT'S
APPLICATION FOR "GRANDFATHER" RIGHTS UNDER SEC. 309(F) OF PART III OF
THE INTERSTATE COMMERCE ACT TO ENGAGE IN THE BUSINESS OF A CONTRACT
CARRIER BY WATER, HELD ERRONEOUS SO FAR AS IT RELATED TO APPELLANT'S
CHARTERING OPERATIONS.  PP. 180, 199. 

THE COMMISSION ERRED IN CONCLUDING THAT APPELLANT WAS NOT ENGAGED IN
CHARTERING OPERATIONS SUBJECT TO PART III ON THE CRITICAL DATE, FOR
FAILURE TO SHOW "THE NATURE OF THE SERVICES RENDERED, THE COMMODITIES
CARRIED IN, OR THE POINTS SERVED WITH SUCH VESSELS."  P. 196. 

2.  AN APPLICANT FOR "GRANDFATHER" RIGHTS UNDER SEC. 309(F) IS NOT
REQUIRED TO SHOW, SO FAR AS CHARTERING OPERATIONS ARE CONCERNED, THAT
HIS CHARTERING OPERATIONS DURING THE CRITICAL PERIOD INCLUDED CARRIAGE
OF NONEXEMPT GOODS.  P. 196. 

3.  THE COMMISSION'S DENIAL TO APPELLANT OF "GRANDFATHER" RIGHTS
UNDER SEC. 309(F) FOR CONTRACT CARRIER OPERATIONS OTHER THAN
CHARTERING, AND DENIAL UNDER SEC. 309(G) OF A PERMIT FOR A "NEW
OPERATION," ARE SUSTAINED BY THE FINDINGS AND THE EVIDENCE.  PP. 199,
200. 

BARRETT LINE, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF OHIO. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DISMISSING
THE COMPLAINT IN A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE INTERSTATE COMMERCE COMMISSION DENIED APPELLANT A PERMIT TO ACT
AS A CONTRACT WATER CARRIER UNDER THE TRANSPORTATION ACT OF 1940, 54
STAT. 898, PART III OF THE INTERSTATE COMMERCE ACT.  A THREE-JUDGE
DISTRICT COURT DISMISSED THE COMPLAINT WHICH SOUGHT REVIEW OF THAT
ORDER.  THE APPEAL IS FROM THIS JUDGMENT. 

IN MAY, 1941, APPELLANT APPLIED FOR A PERMIT TO CARRY GENERAL
COMMODITIES, WITH EXCEPTIONS NOT NOW MATERIAL, BETWEEN POINTS ON THE
MISSISSIPPI RIVER AND ITS TRIBUTARIES.  THE AUTHORITY SOUGHT WAS TO
"CONTINUE AN OPERATION IN EXISTENCE JANUARY 1, 1940, AND CONTINUOUSLY
THEREAFTER," AS A CONTRACT CARRIER OF PROPERTY OVER IRREGULAR ROUTES,
PURSUANT TO "GRANDFATHER RIGHTS" CLAIMED UNDER SEC. 309(F) OF PART
III.  FN1  A YEAR LATER, WHILE THE GRANDFATHER APPLICATION WAS PENDING,
APPELLANT FILED ANOTHER APPLICATION AS A PRECAUTIONARY MEASURE.  THIS
SOUGHT, IN THE ALTERNATIVE, LEAVE TO PERFORM THE SAME SERVICE AS A NEW
OPERATION "CONSISTENT WITH THE PUBLIC INTEREST AND THE NATIONAL
TRANSPORTATION POLICY" UNDER SEC. 309(G).  FN2 

PROTESTS WERE FILED BY OTHER CARRIERS AND THE TWO APPLICATIONS WERE
HEARD TOGETHER BEFORE AN EXAMINER IN SEPTEMBER, 1942.  HE CONCLUDED
THAT THE SHOWING DID NOT WARRANT GRANTING OF THE GRANDFATHER
APPLICATION, BUT RECOMMENDED GRANTING OF THE PERMIT UNDER SEC. 309(G). 
DIVISION IV HOWEVER DENIED BOTH APPLICATIONS, THAT UNDER SEC. 309(F)
FOR FAILURE TO MAKE THE REQUIRED SHOWING OF ACTUAL OPERATIONS ON AND
AFTER THE CRUCIAL DATE, THE ONE UNDER SEC. 309(G) ON THE GROUND THAT
APPELLANT HAD "FAILED TO SHOW THAT IT IS PROPOSING ANY NEW OPERATION,
OR THAT A NEW OPERATION BY IT WOULD BE CONSISTENT WITH THE PUBLIC
INTEREST OR THE NATIONAL TRANSPORTATION POLICY, OR THAT PRESENT OR
FUTURE PUBLIC CONVENIENCE AND NECESSITY REQUIRE SUCH OPERATION."  A
PETITION FOR RECONSIDERATION BY THE FULL COMMISSION WAS DENIED AND THE
DISTRICT COURT ADOPTED ITS FINDINGS AND CONCLUSIONS IN A PER CURIAM
OPINION. 

THE EVIDENCE CONSISTED OF EXHIBITS AND THE TESTIMONY OF APPELLANT'S
PRESIDENT, BARRETT.  THE STORY IS OF AN OLD-STYLE FAMILY INSTITUTION
WHICH, FOR FOUR GENERATIONS, HAS HAD PART IN LIFE ON THE MISSISSIPPI
AND ITS TRIBUTARIES.  AS TOLD BY CAPTAIN BARRETT, THE LINE NOT ONLY
PIONEERED IN THE GREAT DEVELOPMENT OF INLAND WATER TRANSPORTATION OF
THE MIDDLE NINETEENTH CENTURY.  ITS HISTORY HAS BEEN CONSTANTLY, DURING
THIS CENTURY, ONE OF PIONEERING IN VARIOUS FIELDS OF WATER
TRANSPORTATION.  AND THEREBY, THE INFERENCE SEEMS JUSTIFIED, HANGS THE
REASON FOR ITS SURVIVAL IN AN AGE WHEN WATER TRANSPORTATION, LIKE SO
MUCH ELSE OF INDUSTRY, HAS BEEN TAKEN OVER LARGELY BY CORPORATE OR
GOVERNMENTAL ENTERPRISE.  NOW THE VICISSITUDES OF REGULATION HAVE BEEN
ADDED TO THOSE OF COMPETITION, APPELLANT URGES, TO THREATEN ITS
CONTINUANCE. 

THE CONCERN, INCORPORATED IN 1926 AS SUCCESSOR TO INDIVIDUAL AND
PARTNERSHIP FORMS OF OPERATION, REMAINS SMALL.  AT THE TIME OF THE
HEARING IT OWNED TWENTY-ONE BARGES AND TWO TOWBOATS, WITH TWO DERRICK
BOATS AND OTHER EQUIPMENT.  CINCINNATI IS THE PORT OF REGISTRATION;
CAIRO, ILLINOIS, THE SITUS OF THE FLEET BY REASON OF ITS ACCESSIBILITY
TO CONJUNCTIONS OF MANY RIVERS. 

OPERATIONS HISTORICALLY HAVE BEEN HIGHLY SELECTIVE AND VARIED IN
CHARACTER.  SINCE 1910, AT ANY RATE, THEY HAVE BEEN LIMITED GENERALLY
TO BULK MATERIALS, THE GREATER NUMBER OF WHICH MAY BE SUBJECTED TO
EXPOSURE TO WEATHER WITHOUT DAMAGE, SUCH AS SCRAP IRON, PIG IRON,
FABRICATED STEEL, PIPING, BAUXITE ORE, COAL, PAVING BRICK, AND STONE,
EXCLUDING SUCH ITEMS AS FURNITURE.  AT ONE TIME OR ANOTHER, HOWEVER,
AUTOMOBILES, SULPHUR, POWDER, GRAINS, SALT AND PETROLEUM PRODUCTS HAVE
BEEN CARRIED.  SO FAR AS APPEARS, THE LINE HAS NOT HELD ITSELF OUT IN
THIS PERIOD AS A COMMON CARRIER AND DOES NOT NOW SEEK TO BECOME ONE. 
ITS BUSINESS HAS BEEN STRICTLY BY SPECIAL CONTRACT, NEGOTIATED WITH
REFERENCE TO THE SEASON, THE COURSE OF THE RIVER REQUIRED FOR THE
OPERATION, TIMES OF LOADING AND UNLOADING, AND OTHER SPECIAL FACTORS. 
IT IS, IN OTHER WORDS, AN IRREGULAR OPERATOR PERFORMING WHAT IT
CHARACTERIZES AS "SPECIAL AND SPORADIC SERVICES UNDER SPECIAL CONTRACTS
AND CONDITIONS."  THE SPORADIC AS WELL AS THE SPECIAL CHARACTER OF THE
SERVICE BECOMES IMPORTANT, AS WILL APPEAR, FOR APPELLANT'S POSITION ON
THE ISSUES. 

THE NATURE OF THE SERVICE AND THE CHARACTER OF THE EQUIPMENT ARE
CORRELATED.  THE BARGES ARE OF STEEL CONSTRUCTION, DESIGNED TO CARRY
DRY OR LIQUID CARGO, THE LATTER BY ADDING PIPING AND FITTINGS WHEN
REQUIRED.  AT THE TIME OF THE HEARING, NINE HAD BEEN CONVERTED IN THIS
WAY AND WERE USED IN PETROLEUM TRAFFIC, THREE BY APPELLANT AND SIX
UNDER CHARTER TO THE STANDARD OIL COMPANY OF OHIO.  OF THOSE REMAINING,
SIX WERE UNDER CHARTER, TO BE CONVERTED TO PETROLEUM CARRIERS; TWO WERE
BEING USED IN CARRIAGE OF COAL; AND FOUR WERE "AVAILABLE FOR SUCH USE
AS WE PUT THEM TO."  CAPTAIN BARRETT TESTIFIED THAT IF THE MOVEMENT OF
PETROLEUM PRODUCTS SHOULD CEASE THE TANKERS READILY COULD BE
RECONVERTED FOR HAULING DRY CARGO. 

THE SERVICE INCLUDES FREIGHTING, EITHER WITH APPELLANT'S OWN BARGES
AND POWER OR BY TOWING BARGES OWNED BY OTHERS.  IN ADDITION APPELLANT
ENGAGES IN CHARTERING, INCLUDING THE LEASING OR CHARTERING OF
EQUIPMENT, AT TIMES WITH CREW, TO OTHERS.  THE CHARTERING, ACCORDING TO
CAPTAIN BARRETT, INVOLVES "WIDE RAMIFICATIONS," OFTEN WITH DIFFICULTY
IN DETERMINING "JUST WHO IS THE OPERATOR, WHETHER IT IS THE SHIPPER WHO
IS RESPONSIBLE, AND THEREFORE, THE OPERATOR, OR WHETHER IT IS THE
CARRIER, WHO FURNISHES THE EQUIPMENT." 

TO ESTABLISH ITS RIGHT TO A PERMIT, WHETHER "GRANDFATHER" OR "NEW
OPERATION," APPELLANT OFFERED EVIDENCE CONSISTING OF AN EXHIBIT LISTING
ALL OF ITS OPERATIONS FROM JANUARY 1, 1936, TO AUGUST 11, 1942, WITH
INFORMATION CONCERNING THE NAME OF THE CUSTOMER, ORIGIN AND
DESTINATION, AND NATURE OF THE CARGO.  NO EFFORT WAS MADE TO PROVE
SPECIFIC OPERATIONS IN SIMILAR DETAIL PRIOR TO THE FORMER DATE.  BUT A
WRITTEN "STATEMENT OF THE HISTORY, TYPE AND SCOPE OF OPERATIONS AND
SERVICES OF THE BARRETT LINE, INC.," SUBSTANTIATED BY THE TESTIMONY OF
CAPTAIN BARRETT, DESCRIBED IN A GENERAL WAY THE CHARACTER AND SCOPE OF
SUCH MOVEMENTS. 

THE GENERAL EFFECT OF THE HISTORICAL EVIDENCE WAS TO SHOW THE VARIED
AND SPORADIC CHARACTER OF THE OPERATIONS FROM ABOUT 1910.  IT APPEARED
THAT THE COMPANY MIGHT BE WITHOUT CONTRACTS OR BUSINESS FOR INTERVALS
OF SEVERAL MONTHS AT A TIME.  MUCH OF ITS ACTIVITY WAS IN THE NATURE OF
"PIONEERING TRADES."  IN BRIEF THIS CONSISTED IN DEMONSTRATING THE
FEASIBILITY OF WATER TRANSPORTATION FOR PARTICULAR COMMODITIES. 
GENERALLY, WHEN THE DEMONSTRATION HAD BEEN MADE, THE RESULT WAS FOR THE
SHIPPER OR ANOTHER TO TAKE OVER THE OPERATION AND APPELLANT THEN WOULD
AWAIT OR SEEK ANOTHER SIMILAR OPPORTUNITY.  FN3 

THE EVIDENCE, BEING GENERAL IN CHARACTER, WAS LACKING TO A LARGE
EXTENT IN DATES CONCERNING SPECIFIC OPERATIONS DURING THE LATTER PART
OF THE PERIOD; SO THAT FOR SOME TEN OR TWELVE YEARS PRIOR TO JANUARY 1,
1936, IT IS DIFFICULT TO GATHER WHAT SPECIFIC KINDS OF MOVEMENTS WERE
BEING MADE, FOR WHOM, BETWEEN WHAT POINTS AND WITH REFERENCE TO WHAT
MATERIALS.  HOWEVER, THE GENERAL INFERENCE WOULD SEEM JUSTIFIED THAT
ANY SUITED TO THE EQUIPMENT AND THE RATHER INDEFINITE CRITERIA USED FOR
NEGOTIATING CONTRACTS WERE TAKEN WHEN OPPORTUNITY OFFERED; OTHERWISE
THE FLEET REMAINED IDLE. 

ON THE OTHER HAND, THE EVIDENCE SUPPLIED BY THE EXHIBIT CONCERNING
MOVEMENTS BETWEEN JANUARY 1, 1936, AND AUGUST 11, 1942, IS MUCH MORE
DEFINITE.  IN ALL INSTANCES WHERE THE SPECIFIC CHARACTER OF THE CARGO
IS MENTIONED, EXCEPT ONE SHIPMENT OF FABRICATED STEEL AND PILING IN
1936, EITHER STONE OR PETROLEUM PRODUCTS, INCLUDING GASOLINE AND
FURNACE OIL, EXEMPT COMMODITIES, ARE MENTIONED.  A VERY CONSIDERABLE
NUMBER OF ITEMS DESIGNATE "MISCELLANEOUS CARGO" AND THERE WERE SOME 44
INSTANCES NOTED SIMPLY AS "CHARTER," WITHOUT REFERENCE TO CHARACTER OF
THE CARGO, INCLUDING 23 IN WHICH EQUIPMENT WAS LEASED OR CHARTERED TO
SHIPPERS NOT CARRIERS SUBJECT TO THE ACT.  A FEW ITEMS SPECIFIED VESSEL
STORAGE, "DAMAGED BARGE," STEAMER AGROUND, FURNISHING STEAM AND LIKE
SERVICES TO OTHER CARRIERS.  IN TWO INSTANCES "TOWING" WAS SPECIFIED
FOR "U.S. ENGINEERS." 

THE "MISCELLANEOUS CARGO" ITEMS LARGELY INVOLVED TOWING LOADED BARGES
OF OTHER CARRIERS, INCLUDING THE AMERICAN BARGE LINE AND THE
MISSISSIPPI VALLEY BARGE LINE.  IN SOME INSTANCES BARRETT IDENTIFIED
THE SPECIFIC CARGOES, AS, FOR EXAMPLE, A MOVEMENT OF THE FORMER
COMPANY'S BARGES LOADED WITH SCRAP IRON, SUGAR AND MOLASSES AND SOME OF
THE LATTER'S BEARING PACKAGED FREIGHT.  IN SUCH CASES, HOWEVER, SINCE
ONLY MOTIVE POWER WAS FURNISHED, AND TO ANOTHER CARRIER, APPELLANT
DISCLAIMED RELYING UPON THE MOVEMENTS "TO ESTABLISH THAT HE (IT) IS A
COMMON CARRIER OF GENERAL COMMODITIES," BUT PUT THEM IN "TO SHOW THE
GENERAL SWEEP AND CHARACTER OF THE SERVICE PERFORMED" AS A CONTRACT
CARRIER.  BARRETT TESTIFIED THAT APPELLANT DID NOT ALWAYS KNOW WHAT WAS
IN SUCH BARGES, THAT THE CHARGES WERE ON A PER DIEM BASIS AND IT
THEREFORE MADE NO DIFFERENCE TO APPELLANT WHAT WAS IN THE BARGES. 

THE DIFFERENCE, IF ANY, BETWEEN THIS TOWING AND CHARTERING WHEN
LABELLED AS SUCH IS SOMEWHAT NEBULOUS, IF INDEED IT IS AT ALL
MATERIAL.  BUT CONCERNING THE LATTER THE WITNESS GAVE SIMILAR
TESTIMONY:  THAT APPELLANT'S CHARGES, WHETHER FOR MOTIVE POWER, BARGES
OR BOTH, WERE ON A PER DIEM BASIS, EXCEPT IN ONE INSTANCE SPECIFYING A
BARREL RATE; AND THAT APPELLANT WAS NOT CONCERNED WITH THE CHARACTER OF
THE CARGO OR WHERE THE BOATS WENT, ALTHOUGH THE COMPANY'S TRIP SHEETS,
NOT PRESENTED IN EVIDENCE, WOULD SHOW THE LATTER. 

THE ONLY EVIDENCE, APART FROM THE EXHIBIT, AS TO OPERATIONS AFTER
JANUARY 1, 1940, CONSISTED IN BARRETT'S TESTIMONY, SUMMARIZED ABOVE,
RELATING TO APPELLANT'S EQUIPMENT AND ITS USE AT THE TIME OF THE
HEARING.  THIS, AS MAY BE RECALLED, RELATED EXCLUSIVELY TO
TRANSPORTATION OF PETROLEUM PRODUCTS, DIRECTLY OR UNDER CHARTER; THE
USE OF TWO BARGES FOR CARRYING COAL; THE AVAILABILITY OF FOUR OTHERS
"FOR SUCH USE AS WE PUT THEM TO." 

IT SHOULD BE ADDED THAT, ACCORDING TO THE EVIDENCE, ONE FACTOR
INDUCING THE CONCENTRATION UPON PETROLEUM PRODUCTS AFTER 1940 WAS THE
EFFECT OF THE WAR EMERGENCY UPON THE CARRIAGE OF THESE PRODUCTS FROM
SOUTHWESTERN PRODUCING FIELDS TO CENTRAL AND EASTERN COMMUNITIES,
TOGETHER WITH ENCOURAGEMENT THE LINE RECEIVED FROM OFFICIALS OF THE
GOVERNMENT TO CONVERT ITS BARGES INTO TANKERS AND ENGAGE IN THIS
BUSINESS.  IT SEEMS OBVIOUS THAT, WITH RETURN TO NORMAL MODES OF
TRANSPORTATION AS THE WAR EMERGENCY PASSES, AND THE DEVELOPMENT OF NEW
FACILITIES ACCELERATED BY IT, THE LIFE SPAN OF THIS CONCENTRATION IS
LIKELY TO REPEAT APPELLANT'S TYPICAL "PIONEERING" PERFORMANCE. 

APPELLANT AND THE COMMISSION ARE AT ODDS UPON THE EFFECTS OF THE
SHOWING MADE CONCERNING MOVEMENTS ON AND AFTER JANUARY 1, 1936, AND AS
TO WHETHER THE COMMISSION ERRONEOUSLY REFUSED TO TAKE ACCOUNT OF
EARLIER ONES SHOWN BY THE HISTORY PRIOR TO THAT TIME.  THE COMMISSION
THOUGHT THAT IT SHOULD DISREGARD THEM, MORE PARTICULARLY WITH REFERENCE
TO THE "GRANDFATHER" APPLICATION, AS BEING TOO REMOTE TO SUBSTANTIATE
THE CLAIM OF "BONA FIDE OPERATION" ON THE CRUCIAL DATE WITHIN SEC.
309(F); FN4  AND FOUND THAT THE MOVEMENTS SHOWN AFTER JANUARY 1, 1936,
WERE INSUFFICIENT TO ESTABLISH THE CLAIMED RIGHTS BECAUSE ALL, EXCEPT
ONE, WERE OF EXEMPT COMMODITIES, INCLUDING PETROLEUM PRODUCTS WHICH
WERE THE ONLY ONES CARRIED AFTER JANUARY 1, 1940, EXCEPT COAL, WHICH
ALSO IS EXEMPT. 

CAUGHT BETWEEN THE UPPER AND NETHER MILLSTONES, SO TO SPEAK, OF
DENIAL OF "GRANDFATHER" RIGHTS AND A PERMIT FOR NEW OPERATIONS,  FN5
APPELLANT QUESTIONS THE COMMISSION'S LIMITATION OF EVIDENCE TO BE
CONSIDERED TO THAT AFFECTING OPERATIONS AFTER JANUARY 1, 1936; ITS
EVALUATION OF THE EVIDENCE TAKEN INTO ACCOUNT, PARTICULARLY THAT
RELATING TO CHARTERING, AS SHOWING TRANSPORTATION OF EXEMPT COMMODITIES
ONLY; ITS INTERPRETATION OF THE STATUTORY PROVISIONS IN THEIR BEARING
UPON THESE ISSUES, ESPECIALLY AS REQUIRING A SHOWING THAT CHARTERING
OPERATIONS INCLUDE NONEXEMPT COMMODITIES TO JUSTIFY ISSUANCE OF A
PERMIT; ITS CONCLUSION THAT THE SHOWING WAS NOT SUFFICIENT TO SUPPORT
THE APPLICATION FOR "GRANDFATHER" RIGHTS; AND THE FURTHER CONCLUSIONS
CONCERNING THE SHOWING AS AFFECTING THE APPLICATION TO PERFORM NEW
OPERATIONS. 

THE SHORT EFFECT OF APPELLANT'S POSITION IS THAT THE COMMISSION'S
ACTION HAS LIMITED IT TO TRANSPORTATION OF EXEMPT COMMODITIES ONLY AND
THAT, IF SO LIMITED, GRAVE INJURY WILL RESULT FOR ITS BUSINESS.  IT
MAINTAINS THAT, IN VIEW OF ITS HISTORY AND THE FACTS PROPERLY
INTERPRETED, IT IS ENTITLED TO A PERMIT FOR THE TRANSPORTATION OF
COMMODITIES GENERALLY, THROUGHOUT THE MISSISSIPPI SYSTEM, INCLUDING ITS
TRIBUTARIES, AND THAT THE PERMIT PREFERABLY SHOULD BE UNDER THE
GRANDFATHER CLAUSE; IF NOT, THEN FOR A "NEW OPERATION."    THE
CONTROVERSY HAS BECOME MOST CRUCIAL IN RELATION TO CHARTERING.  THE
COMMISSION FOUND THAT THESE ACTIVITIES RELATED, IN THE CRUCIAL PERIOD
AND ON THE SHOWING MADE, ONLY TO EXEMPT COMMODITIES, FOR CARRIAGE OF
WHICH AUTHORITY IS NOT REQUIRED,  FN6 AND CONCLUDED THAT APPELLANT WAS
THEREFORE NOT ENGAGED IN CHARTERING OPERATIONS SUBJECT TO PART III OR
ENTITLED TO A PERMIT FOR THEM.  THE OPINION STATED:  "...  THE ONLY
TRANSPORTATION WHICH MIGHT BE SUBJECT TO REGULATION UNDER PART III WAS
THAT OF CHARTERING OF VESSELS TO SHIPPERS.  HOWEVER, NO SHOWING IS MADE
AS TO THE NATURE OF THE SERVICES RENDERED, THE COMMODITIES CARRIED IN,
OR THE POINTS SERVED WITH SUCH VESSELS.  ON SUCH MEAGER SHOWING WE
WOULD NOT BE WARRANTED IN FINDING THAT APPLICANT, ON JANUARY 1, 1940,
AND CONTINUOUSLY SINCE, WAS ENGAGED IN CHARTERING OPERATIONS SUBJECT TO
PART III OF THE ACT." 

APPELLANT ATTACKS THIS FINDING AND THE CONCLUSION AS CONTRARY TO
LAW.  THE ARGUMENT IS FOUNDED UPON SEC. 302(E), WHICH DEFINES "CONTRACT
CARRIER BY WATER" AND PROVIDES THAT THE FURNISHING OF A VESSEL UNDER
CHARTER OR LEASE TO A PERSON OTHER THAN A CARRIER SUBJECT TO THE ACT,
FOR USE IN TRANSPORTING THE LATTER'S PROPERTY, SHALL BE CONSIDERED TO
CONSTITUTE "ENGAGING IN TRANSPORTATION" WITHIN THE MEANING OF THE
DEFINITION OF "CONTRACT CARRIER BY WATER."  FN7 

ALTHOUGH IT IS TRUE THAT NO PERMIT IS REQUIRED IF ONLY EXEMPT
COMMODITIES ARE CARRIED IN CHARTERED VESSELS, APPELLANT CONSTRUES SEC.
302(E) TO ENTITLE IT TO A PERMIT IF ON THE CRUCIAL DATE IT WAS ENGAGED
IN BONA FIDE CHARTERING OPERATIONS, WITHOUT REGARD TO WHETHER THE
COMMODITIES ACTUALLY CARRIED WERE EXEMPT OR NONEXEMPT.  IN THIS VIEW
THE ACT IS NOT CONCERNED, SO FAR AS IT RELATES TO CHARTERING, WITH THE
CHARACTER OF THE COMMODITY, BUT TAKES ACCOUNT ONLY OF THE FURNISHING OF
THE VESSEL; AND THE COMMISSION, BY REQUIRING A SHOWING AS TO THE NATURE
OF THE COMMODITY, ADDED A REQUIREMENT NOT INCLUDED OR AUTHORIZED BY THE
STATUTE. 

ACCORDINGLY, SINCE THE EVIDENCE CLEARLY DISCLOSED NUMEROUS CHARTER
OPERATIONS WITHIN THE CRITICAL PERIOD, APPELLANT DRAWS TWO CONCLUSIONS:
(1) THAT IT WAS ENTITLED TO GRANDFATHER RIGHTS FOR CHARTERING, AS
SUCH, AND TO A PERMIT FOR SUCH OPERATIONS WHICH WOULD ALLOW IT TO
CHARTER VESSELS FOR CARRIAGE OF NONEXEMPT AS WELL AS EXEMPT CARGO,
WITHOUT REFERENCE TO ITS CHARACTER IN THIS RESPECT; AND (2), THIS BEING
SO, IT WAS "ENGAGED IN TRANSPORTATION" OF BOTH EXEMPT AND NONEXEMPT
COMMODITIES ON THE CRITICAL DATE AND THEREFORE, UNDER THE COMMISSION'S
RULINGS RELATING TO SUCH SITUATIONS, WAS ENTITLED TO A PERMIT
AUTHORIZING NOT ONLY CHARTERING BUT ALSO TRANSPORTATION OF COMMODITIES
GENERALLY. 

APPELLANT RELIES ESPECIALLY UPON THE COMMISSION'S DECISION IN C.F.
HARMS CO., CONTRACT CARRIER APPLICATION, 260 I.C.C. 171, RENDERED
JANUARY 4, 1944, AFTER THE COMPLAINT HAD BEEN FILED IN THIS CAUSE; FN8
WITH EMPHASIS ALSO UPON RUSSELL BROS. TOWING CASE, 250 I.C.C. 429, AND
MORAN TOWING & TRANSPORTATION CO. CASE, 250 I.C.C. 541; 260 I.C.C.
269. 

IN THESE CASES PERMITS WERE GRANTED EITHER TO A "FURNISHER OF
VESSELS" OR TO TOWERS WITHOUT LIMITATION AS TO COMMODITIES, ON THE
BASIS OF SUCH A HOLDING OUT, EXCEPT THAT IN THE MORAN CASE THE TOWER
HAD NO OFFICIAL KNOWLEDGE OF THE CONTENTS OF THE LOADED BARGES. 
APPELLANT REGARDS THESE DECISIONS AS INCONSISTENT WITH THE COMMISSION'S
ACTION IN THIS CASE.  THE COMMISSION DISTINGUISHES THEM, HOWEVER, ON
THE BASIS THAT THE EVIDENCE DISCLOSED OPERATIONS AFFECTING BOTH EXEMPT
AND NONEXEMPT GOODS.  THE INTERVENING PROTESTANTS CHARACTERIZE
APPELLANT'S "STRATEGY," PARTICULARLY IN ITS RELIANCE UPON THE RUSSELL
BROS. CASE, AS FOLLOWS:  "IT HOPES FIRST TO HAVE ITSELF MADE SUBJECT TO
THE ACT AS A 'FURNISHER OF VESSELS' AND, HAVING ESTABLISHED THAT
FINGERHOLD, TO BRING TO ITS AID THE DOCTRINE OF THE RUSSELL BROS. CASE
THAT BOTH REGULATED AND UNREGULATED ACTIVITIES SHOULD BE CONSIDERED IN
DETERMINING RIGHTS." 

IF THE COMMISSION'S PREMISE WERE VALID, THAT A FURNISHER OF VESSELS
MUST SHOW, AS OF THE CRITICAL DATE, THAT HIS OPERATIONS INCLUDED
NONEXEMPT COMMODITIES OR, AS ITS OPINION STATED, "THE NATURE OF THE
SERVICES RENDERED, THE COMMODITIES CARRIED IN, OR THE POINTS SERVED
WITH SUCH VESSELS," WE WOULD NEVERTHELESS BE IN DOUBT CONCERNING THE
VALIDITY OF ITS RULING THAT NO SUFFICIENT SHOWING WAS MADE IN THIS
CASE. 

APPELLANT'S EXHIBIT DISCLOSED 43 OR 44 CHARTERING OPERATIONS IN THE
PERIOD TAKEN BY THE COMMISSION AS EVIDENTIAL, DESIGNATED SIMPLY AS
"CHARTER."  ALL BUT TWO SPECIFIED CAIRO, ILLINOIS, AS BOTH ORIGIN AND
DESTINATION.  IN THE BRIEF IT IS SUGGESTED THESE WERE THEREFORE EXEMPT
UNDER SEC. 303(G) RELATING TO TRANSPORTATION IN A SINGLE HARBOR.  THE
SUGGESTION FLIES FLATLY IN THE FACE OF THE UNCONTRADICTED TESTIMONY
GIVEN BY CAPTAIN BARRETT THAT CAIRO WAS DESIGNATED IN THESE INSTANCES
BECAUSE IT WAS THE SITUS OF THE FLEET, APPELLANT WAS CHARTERING OR
LEASING THE EQUIPMENT ON A PER DIEM BASIS, WAS THEREFORE NOT INTERESTED
IN THE CONTENTS OR CHARACTER OF THE CARGO OR WHERE THE VESSEL WENT, AND
THAT THESE OPERATIONS WERE NOT CONFINED TO THE CAIRO HARBOR BUT THAT
POINT WAS DESIGNATED BECAUSE IT WAS THE PLACE WHERE THE MOVEMENT BEGAN
AND THE EQUIPMENT WAS DELIVERED WHEN IT ENDED.  THE EFFECT OF THIS
EVIDENCE IS NOT NULLIFIED, AS SEEMS TO BE SUGGESTED IN THE BRIEF,
BECAUSE THE WITNESS ALSO TESTIFIED THAT THE CHARTERED VESSELS WERE RUN
WITH APPELLANT'S CREWS, THE MASTERS WERE HANDED MANIFESTS DISCLOSING
THE CARGOES CARRIED, AND THE TRIP SHEETS WOULD REVEAL WHERE THE VESSELS
WENT.  ANY OTHER THAN THE MOST RIGID CONSTRUCTION WOULD REGARD THOSE
FACTS AS SUPPORTING, RATHER THAN IMPAIRING, THE CLAIM OF ENGAGING IN
GENERAL CHARTERING OPERATIONS WITHOUT LIMITATION TO EXEMPT COMMODITIES
OR PARTICULAR POINTS OF LOADING AND UNLOADING. 

SIMILAR RESTRICTIVE INFERENCES ARE DRAWN IN THE BRIEF TO SUPPORT
"PROBABLE EXEMPTIONS" IN NEARLY ALL THE OTHER INSTANCES OF CHARTERING,
INCLUDING SIX IN 1937 AS "TOO REMOTE" THOUGH WITHIN THE PERIOD
CONSIDERED.  OF THESE, SOME 19 OR 20, RELATING TO CHARTERING TO OTHER
CARRIERS SUBJECT TO REGULATION, SEEM JUSTIFIED.  BUT WITH THEM
ELIMINATED, 23 INSTANCES OF CHARTERING TO SHIPPERS WHO WERE NOT
CARRIERS REMAIN TO SUPPORT THE CLAIM.  WE ARE UNABLE TO ACCEPT THE VIEW
THAT THEY CONSTITUTED SO MEAGER A SHOWING AS TO JUSTIFY ON THIS GROUND
WITHHOLDING A PERMIT FOR CHARTERING. 

IN THE MORAN CASE THE COMMISSION SAID: 

"WE THINK IT UNNECESSARY IN THIS CASE TO DETERMINE WHETHER THE
SERVICES PERFORMED WERE OR WERE NOT ACTUALLY SUBJECT TO THE ACT.  THE
NATURE OF THE CARGO IN THE VESSELS TOWED IS USUALLY THE DETERMINING
FACTOR AS TO WHETHER OR NOT THE SERVICE IS EXEMPT, BUT APPLICANT'S
TOWAGE SERVICE IS PERFORMED WITHOUT REGARD TO THE NATURE OF THE CARGO
LOADED IN THE VESSELS TOWED BY IT."  260 I.C.C. 269, 272. 

IN THE RUSSELL BROS. CASE THE COMMISSION STATED, WITH REFERENCE TO
THE DEFINITION OF A COMMON CARRIER BY WATER IN PART III AND THE
"GRANDFATHER" REQUIREMENT OF BONA FIDE OPERATION ON THE CRITICAL DATE: 

"IT WILL BE NOTED THAT IN NEITHER INSTANCE IS THERE ANY REFERENCE TO
WHETHER THE TRANSPORTATION PERFORMED BY THE CARRIER IS OR IS NOT
SUBJECT TO REGULATION.  IN DETERMINING A CARRIER'S STATUS AND THE SCOPE
OF ITS OPERATIONS DURING THE 'GRANDFATHER' PERIOD, ITS ENTIRE OPERATION
SHOULD BE CONSIDERED, AND NOT MERELY THAT PART WHICH THE CONGRESS HAS
SEEN FIT TO MAKE SUBJECT TO REGULATION.  TO FIND THAT 'GRANDFATHER'
RIGHTS MAY BE GRANTED ONLY TO THE EXTENT THAT A SHOWING IS MADE AS TO
THE PERFORMANCE OF REGULATED TRANSPORTATION REQUIRES THE READING INTO
THE LAW OF LANGUAGE WHICH, IN FACT, IS NOT THERE."  250 I.C.C. 429, 433
434.  FN9 

NOTWITHSTANDING THE COMMISSION'S INSISTENCE THAT THESE CASES ARE
DISTINGUISHABLE, AS RESTING UPON DIFFERENT SHOWINGS, IT IS DIFFICULT TO
ACCEPT THAT VIEW IF, AS THE MORAN OPINION INDICATES, THE CRUCIAL FACT
TO BE SHOWN IS PERFORMANCE OF SERVICE "WITHOUT REGARD TO THE NATURE OF
THE CARGO LOADED IN THE VESSELS TOWED BY IT."  THE CONCLUSION IS EVEN
MORE DIFFICULT IF, AS THE RUSSELL BROS. OPINION STATES, "TO FIND THAT
'GRANDFATHER' RIGHTS MAY BE GRANTED ONLY TO THE EXTENT THAT A SHOWING
IS MADE AS TO THE PERFORMANCE OF REGULATED TRANSPORTATION REQUIRES THE
READING INTO THE LAW OF LANGUAGE WHICH, IN FACT, IS NOT THERE." 

THIS STATEMENT APPLIES EQUALLY TO THE COMPARABLE STATUTORY PROVISIONS
RELATING TO CONTRACT CARRIERS.  CF. C.F. HARMS CO., CONTRACT CARRIER
APPLICATION, 250 I.C.C. 685; 260 I.C.C. 171.  SECTION 309(F) DOES NOT
IN TERMS REQUIRE THAT SUCH A CARRIER, TO BE ENTITLED TO "GRANDFATHER"
RIGHTS, MUST HAVE BEEN ENGAGED IN THE TRANSPORTATION OF COMMODITIES
WHICH ARE NONEXEMPT.  IT MAY BE CONCEDED THAT SUCH A LIMITATION
PROPERLY MAY BE IMPLIED FROM THE REQUIREMENT OF SUBSTANTIAL PARITY
BETWEEN OPERATIONS ON THE CRITICAL DATE AND THOSE FOR WHICH A PERMIT IS
SOUGHT, AS TO OTHER FORMS OF TRANSPORTATION THAN THE FURNISHING OF
VESSELS AS DEFINED IN SEC. 302(E).  CF. ALTON R. CO. V. UNITED STATES,
315 U.S. 15, 22; NOBLE V. UNITED STATES, 319 U.S. 88, 92.  BUT IT DOES
NOT FOLLOW THAT THE SAME LIMITATION APPLIES TO "THE FURNISHING FOR
COMPENSATION (UNDER A CHARTER, LEASE, OR OTHER AGREEMENT) OF A VESSEL"
UNDER THAT SECTION.  IT DEFINES THE ACT OF FURNISHING, TO SHIPPERS
OTHER THAN REGULATED CARRIERS, AS "ENGAGING IN TRANSPORTATION" WITHIN
THE MEANING OF "CONTRACT CARRIER BY WATER" AS THAT TERM IS USED IN THE
IDENTICALLY WITH OTHERS COVERED BY THE GENERAL DEFINITION, THE PURPOSE
AND UTILITY OF THE SPECIAL PROVISION CONCERNING FURNISHING BECOME
OBSCURE IF THE PROVISION DOES NOT IN FACT BECOME WHOLLY INEFFECTIVE. 

THE CHARTERING OR LEASING OF VESSELS AND EQUIPMENT IS NOT SO
OBVIOUSLY SIMILIAR TO OR IDENTICAL WITH ACTIVELY "ENGAGING IN
TRANSPORTATION" THAT, WITHOUT SPECIFIC PROVISION FOR COVERAGE, IT
NECESSARILY WOULD BE INCLUDED WITHIN THAT OF THE MORE GENERAL
DEFINITIONS AND PROVISIONS.  QUITE DIFFERENT MODES OF OPERATION,
PHYSICALLY AND IN BUSINESS MANAGEMENT, AS WELL AS RESPONSIBILITIES,
CONCEIVABLY IF NOT ALSO GENERALLY, GIVE THE ACTIVITY MATERIALLY
DIFFERENT CHARACTERISTICS FROM THE CARRYING OF GOODS IN THE MORE
CONVENTIONAL SENSE.  CONGRESS OBVIOUSLY SOUGHT TO BRING THESE
OPERATIONS WITHIN THE REGULATORY SCHEME BY THE SPECIAL PROVISIONS. 

IN DOING SO WE DO NOT THINK IT HAD IN MIND THE PURPOSE TO DRAW A
SHARP LINE BETWEEN FURNISHERS OF VESSELS CARRYING ONLY EXEMPT
COMMODITIES AND THOSE CARRYING NONEXEMPT ONES.  THAT IS TRUE,
NOTWITHSTANDING THE FACT THAT ONE ENGAGING IN CHARTERING AFFECTING ONLY
THE FORMER IS NO MORE REQUIRED TO SECURE A PERMIT THAN ONE ENGAGING IN
OTHER FORMS OF TRANSPORTING EXEMPT COMMODITIES. 

THE LEGISLATIVE HISTORY SHOWS THAT THE ORIGINAL COUNTERPART OF THE
"FURNISHING" PROVISION OF SEC. 302(E) EXTENDED TO THE FURNISHING OF A
VESSEL "TO ANOTHER PERSON" RATHER THAN "TO A PERSON OTHER THAN A
CARRIER SUBJECT TO THIS ACT" AS IT NOW STANDS.  THIS MET WITH VIGOROUS
OPPOSITION, ON THE GROUND THAT AN OWNER SUPPLYING EQUIPMENT TO ANOTHER
CARRIER WOULD BECOME SUBJECT TO THE ACT, THUS POSSIBLY IMPOSING UPON
HIM RESPONSIBILITY FOR THE CHARGES OF THE LESSEE, OR OTHER PERSON
PERFORMING THE OPERATION, FOR PERFORMING IT AND FOR THOSE OPERATIONS,
OVER WHICH OF COURSE THE OWNER WOULD NOT HAVE CONTROL.  IT WAS FEARED
THIS MIGHT DESTROY A LARGE AMOUNT OF CHARTERING ACTIVITY, INCLUDING
BOTH INTERCOASTAL AND INLAND WATERWAY BUSINESS, CONDUCTED THEN WITH A
HIGH DEGREE OF FLEXIBILITY.  CF. 84 CONG. REC. 9709; ID., 9979. 
EMPHASIS WAS PLACED IN THE DISCUSSION UPON THE FREEDOM OF RAILROADS,
ACTING UNDER PART I, AND OF MOTOR CARRIERS, UNDER PART II, TO LEASE
SURPLUS EQUIPMENT WITHOUT BECOMING RESPONSIBLE AS REGULATED CARRIERS
FOR ITS USE; AND UPON THE COMMON PRACTICE OF BARGE LINES AND OTHER
WATER CARRIERS TO LEASE EQUIPMENT FREELY AND FOR LONG OR SHORT PERIODS
OF TIME ON OPEN MARKETS.  IBID. 

TO MEET THE OBJECTIONS AN AMENDMENT WAS OFFERED IN THE HOUSE TO MAKE
THE ORIGINAL PROPOSAL READ: "...  A PERSON WHICH  ...  FURNISHES A
VESSEL  ...  SHALL ITSELF NOT BE CONSIDERED TO BE ENGAGED...."  84
CONG. REC. 9979.  HAD THIS FINALLY BEEN ADOPTED, CHARTERING WOULD HAVE
BEEN WHOLLY EXEMPT.  THE FINAL FORM OF THE BILL STRUCK OUT THE WORD
"NOT" AND SUBSTITUTED THE PRESENT PROVISION.  THE CONFERENCE REPORT
STATES, IN ADDITION TO THE PURPOSE TO LIMIT APPLICATION TO CASES WHERE
THE VESSEL IS FURNISHED TO A PERSON OTHER THAN A REGULATED CARRIER, THE
INTENTION TO CLARIFY THE LANGUAGE "TO MAKE SURE THAT THE PERSON
FURNISHING THE VESSEL WILL NOT, SIMPLY BY REASON OF FURNISHING THE
VESSEL, BECOME A CONTRACT CARRIER SUBJECT TO PART III OF THE ACT AS TO
THAT PART OF ITS BUSINESS NOT RELATED TO THE FURNISHING AND USE OF THE
VESSEL."  FN10 

THIS SEEMS OBVIOUSLY TO CONTEMPLATE THAT CHARTERING, OR THE DEFINED
FURNISHING OF EQUIPMENT, IS TO BE REGARDED AND TREATED AS IN A SEPARATE
CATEGORY FROM OTHER FORMS OF ENGAGING IN REGULATED ACTIVITY; AND THAT
THE ONE FURNISHING THE VESSEL BY THAT ACT WOULD BECOME A "CONTRACT
CARRIER SUBJECT TO PART III" AS TO THAT PART OF THE BUSINESS, UNLESS
THE VESSEL WERE FURNISHED TO ANOTHER CARRIER.  THIS CONCLUSION IS
FURTHER SUPPORTED BY THE FACT THAT SEC. 302(E) IN TERMS TAKES ACCOUNT
OF THE CHARACTER OF THE PROPERTY TO BE SO TRANSPORTED IN THE LANGUAGE
"TO BE USED BY THE PERSON TO WHOM SUCH VESSEL IS FURNISHED IN THE
TRANSPORTATION OF ITS OWN PROPERTY." 

THIS LIMITATION TAKES NO ACCOUNT OF THE DISTINCTION BETWEEN EXEMPT
AND NONEXEMPT COMMODITIES.  HAD CONGRESS INTENDED THAT LINE TO BE DRAWN
RIGIDLY TO REQUIRE SHOWING OF CHARTERING FOR CARRIAGE OF NONEXEMPT
GOODS, IN ORDER TO ESTABLISH GRANDFATHER RIGHTS, THAT PURPOSE, WE
THINK, WOULD HAVE BEEN CLEARLY EXPRESSED.  ITS CONCERN IN THIS
PROVISION WAS NOT WITH THAT LINE.  THE OBVIOUS PURPOSE WAS TO SECURE
FULL REGULATION OF THE TRAFFIC, BY APPLICATION OF THE ACT'S PROVISIONS
TO THE LESSEE, IF HE SHOULD BE A REGULATED CARRIER, THUS EXEMPTING THE
LESSOR IN THAT SITUATION; OTHERWISE TO THE LESSOR.    IN PROVIDING FOR
THE ALTERNATIVE INCIDENCE OF COVERAGE, CONGRESS RECOGNIZED THAT, IN
CHARTERING, THE CHARACTER OF THE COMMODITY, AS BEING EXEMPT OR NOT
EXEMPT, WAS MORE THE CONCERN OF THE "LESSEE" THAN OF THE LESSOR OR
CHARTERER.  THE LATTER'S CONCERN WAS WITH THE FURNISHING OF THE VESSEL
AS SUCH AND WITH WHETHER THE "LESSEE" WAS A REGULATED CARRIER.  TO
REGARD THE ACT AS IMPOSING THE FURTHER LIMITATION THAT THE LESSOR ALSO
MUST HAVE REGARD TO THE CHARACTER OF THE CARGO WOULD CAST THAT
ACTIVITY, INTENDED TO BE KEPT FLEXIBLE, AS THE LEGISLATIVE HISTORY
SHOWS, INTO A MORE RIGID REGULATORY MOLD THAN OTHER FORMS OF
TRANSPORTATION COVERED EITHER BY PART III OR BY PARTS I AND II. 

ACCORDINGLY WE THINK THE COMMISSION ERRED IN CONCLUDING THAT
APPELLANT WAS NOT ENGAGED IN CHARTERING OPERATIONS SUBJECT TO PART III
ON THE CRITICAL DATE, FOR FAILURE TO SHOW "THE NATURE OF THE SERVICES
RENDERED, THE COMMODITIES CARRIED IN, OR THE POINTS SERVED WITH SUCH
VESSELS."  THIS CONCLUSION, MOREOVER, SEEMS TO BE IN ACCORD WITH ITS
OWN DECISION IN THE HARMS CASE AND IN HARMONY WITH THE PRINCIPLES
FOLLOWED IN THE MORAN TOWING CASE AND THAT OF RUSSELL BROS.  FN11 

THE COMMISSION URGES HOWEVER THAT WE ARE NOT CONCERNED SIMPLY WITH
INCONSISTENCIES IN ITS DECISIONS, SINCE EVIDENCE VARIES WITH CASES AND
TO ITS INFORMED JUDGMENT IS CONFIDED THE PRIMARY DUTY TO MAKE
APPROPRIATE APPLICATIONS OF THE ACT.  WE RESPECT THAT JUDGMENT AND THAT
OBLIGATION.  BUT THE MATTER NOW INVOLVED GOES BEYOND MERE APPARENT
INCONSISTENCY IN THE STATUTE'S APPLICATION.  SEEMINGLY THERE HAS BEEN A
BASIC DIFFERENCE OF OPINION WITHIN THE COMMISSION ITSELF CONCERNING THE
NECESSITY FOR PROOF SHOWING THE CHARACTER OF THE COMMODITY, AS EXEMPT
OR NONEXEMPT, TO ESTABLISH GRANDFATHER RIGHTS TO CHARTERING OPERATIONS
AND ALSO AS TO THE CHARACTER OF THE PROOF REQUIRED.  THIS APPEARS FROM
THE FACT THAT TWO OF THE THREE COMMISSIONERS WHO PARTICIPATED IN THE
DECISION BY DIVISION IV IN THIS CASE DISSENTED FROM THE FULL
COMMISSION'S DECISION IN THE HARMS CASE AND ONE OF THEM IN THE MORAN
CASE. 

WITH FULL RESPECT FOR THE DISSENTING JUDGMENT, WE THINK THE VIEW
EVENTUALLY REACHED BY THE MAJORITY IN THOSE DECISIONS ACCORDS WITH THE
STATUTORY PURPOSE AND PROVISION.  FN12  THE DISSENTING COMMISSIONERS
EMPHASIZE THE REQUIREMENT OF SEC. 309(G) THAT A PERMIT SHALL SPECIFY
THE BUSINESS OF THE CONTRACT CARRIER AND THE SCOPE THEREOF; AND REGARD
THIS AS QUALIFYING THE "FURNISHING" PROVISION OF SEC. 302(E) SO AS TO
REQUIRE SUBSTANTIALLY THE SAME SPECIFIC SHOWING AS TO CHARACTER OF THE
COMMODITIES AND TERRITORIAL SCOPE OF OPERATIONS IN CHARTERING AS HAS
BEEN DEEMED REQUIRED FOR OTHER FORMS OF TRANSPORTATION.  WITHOUT THIS,
THEY SAY, THE SUBSTANTIAL PARITY BETWEEN FUTURE OPERATIONS AND PRIOR
BONA FIDE OPERATIONS CONTEMPLATED BY THE GRANDFATHER PROVISIONS CANNOT
BE MAINTAINED. 

THE POLICY OF MAINTAINING THAT PARITY BY ADEQUATE STANDARDS OF PROOF
IS SOUND, ALTHOUGH "THE ACT IS REMEDIAL AND TO BE CONSTRUED
LIBERALLY."  MCDONALD V. THOMPSON, 305 U.S. 263, 266; CRESCENT EXPRESS
LINES V. UNITED STATES, 320 U.S. 401, 409.  THE POLICY, HOWEVER, MAY BE
DEFEATED BY TOO STRICT AN APPLICATION IN PARTICULAR CASES, MORE
ESPECIALLY IT WOULD SEEM IN RELATION TO WATER CARRIERS WHOSE
OPERATIONS, IN CONTRACT CARRIAGE AT ANY RATE, ARE MORE GENERALLY
IRREGULAR AND SPASMODIC THAN IN THE CASE OF OTHER CARRIERS.  THE COURT
HAS SAID, EVEN IN RELATION TO THE LATTER: "THE COMMISSION MAY NOT
ATOMIZE HIS PRIOR SERVICE, PRODUCT BY PRODUCT, SO AS TO RESTRICT THE
SCOPE OF HIS OPERATIONS, WHERE THERE IS SUBSTANTIAL EVIDENCE IN
ADDITION TO HIS HOLDING OUT THAT HE WAS IN 'BONA FIDE OPERATION' AS A
'COMMON CARRIER' OF A LARGE GROUP OF COMMODITIES OR OF A WHOLE CLASS OR
CLASSES OF PROPERTY.  THERE MIGHT BE SUBSTANTIAL EVIDENCE OF SUCH AN
UNDERTAKING THOUGH THE EVIDENCE AS TO ANY ONE ARTICLE WAS NOT
SUBSTANTIAL."  UNITED STATES V. CAROLINA CARRIERS CORP., 315 U.S. 475,
483, 484. 

THIS LANGUAGE HAS PARTICULARLY APPROPRIATE APPLICATION TO THE PROOF
MADE IN THIS CASE, AT ANY RATE IN RELATION TO THE CHARTERING
OPERATIONS, IN SO FAR AS PROOF MAY BE REQUIRED FOR COMPLIANCE WITH THE
REQUIREMENTS OF SEC. 309(G).  BEYOND THIS, IT BEARS ALSO UPON THE
EXTENT TO WHICH THOSE REQUIREMENTS ARE TO BE TAKEN AS QUALIFYING SEC.
302(E).  TO CONSIDER THEM AS DOING SO IN A MANNER TO REQUIRE THE
CHARTERING CARRIER TO PROVE SPECIFIC INSTANCES OF NONEXEMPT COMMODITY
CARRIAGE WOULD MOLECULARIZE, IF NOT ATOMIZE, THE CHARTERING BUSINESS
AND THREATEN, IF NOT ACCOMPLISH, THE DESTRUCTION ANTICIPATED IN THE
CONGRESSIONAL DEBATES.  THAT RESULT, OR ONE TENDING STRONGLY TOWARD IT,
AS WOULD SUCH A CONSTRUCTION, HARDLY CAN BE TAKEN TO BE CONSISTENT WITH
THE DECLARED NATIONAL TRANSPORTATION POLICY "TO PROVIDE FOR FAIR AND
IMPARTIAL REGULATION OF ALL MODES OF TRANSPORTATION SUBJECT TO THE
PROVISIONS OF THIS ACT, SO ADMINISTERED AS TO RECOGNIZE AND PRESERVE
THE INHERENT ADVANTAGES OF EACH" OR THE FURTHER DECLARATION THAT THIS
POLICY IS TO BE APPLIED IN ENFORCING ALL OF THE ACT'S PROVISIONS N13. 
SPASMODIC OPERATION HARDLY WOULD BE REGARDED AS AN INHERENT ADVANTAGE
OF RAIL OR PERHAPS OF MOTOR SERVICE IN GENERAL.  IT IS, OR MAY BE, THE
MOST VALUABLE INHERENT ADVANTAGE OF A CONTRACT WATER CARRIER. 

IT FOLLOWS THAT THE JUDGMENT MUST BE REVERSED AS TO THE CHARTERING
PHASE OF APPELLANT'S OPERATIONS. 

IN VIEW OF WHAT HAS BEEN SAID, PARTICULARLY WITH REFERENCE TO THE
VARIED AND SPASMODIC CHARACTER OF APPELLANT'S OPERATIONS, AND THE
POLICY OF MAINTAINING THESE AS AN INHERENT ADVANTAGE OF WATER
TRANSPORTATION, OUR JUDGMENT MIGHT DIFFER FROM THE COMMISSION'S AS TO
THE SUFFICIENCY OF THE SHOWING MADE AS IT RELATED TO OTHER OPERATIONS
THAN CHARTERING AND, IN VIEW OF THAT SHOWING, AS TO THE NECESSITY OR
PROPRIETY OF LIMITING THE PERIOD OF OPERATIONS CONSIDERED, IN RELATION
TO THE CLAIM OF GRANDFATHER RIGHTS, TO THAT FOLLOWING JANUARY 1, 1936. 

NEVERTHELESS, OUR VIEWS IN THESE RESPECTS ARE NOT TO BE SUBSTITUTED
FOR THE COMMISSION'S WHICH IS NOT ONLY SPECIALLY INFORMED BUT BROADLY
DISCRETIONARY AND CONTROLLING EXCEPT IN CASE OF CLEAR DEPARTURE FROM
STATUTORY REQUIREMENTS.  APART FROM THE CHARTERING, WE ARE UNABLE TO
SAY THERE WAS SUCH A DEPARTURE IN THIS CASE.  THE POLICY OF THE
COMMISSION HAS RECOGNIZED THAT A SOMEWHAT MORE LIBERAL ATTITUDE IS
REQUIRED IN THE CASE OF WATER CARRIERS THAN WITH RESPECT TO OTHERS IN
THE LENGTH OF THE PERIOD TO BE CONSIDERED AS ESTABLISHING THE CLAIM OF
BONA FIDE OPERATION N14.  MOREOVER, AS HAS BEEN STATED, THE EVIDENCE
RELATING TO THE LATTER PART OF THE PERIOD PRIOR TO 1936 WAS RATHER MORE
VAGUE THAN THAT AFFECTING BOTH EARLIER AND LATER PERIODS.  IN VIEW OF
THESE FACTS WE CANNOT SAY THAT THE COMMISSION ERRED IN ITS FINDINGS OR
CONCLUSION THAT APPELLANT WAS NOT ENTITLED, ON THE SHOWING MADE, TO A
PERMIT FOR GRANDFATHER OPERATIONS OTHER THAN THOSE INVOLVING
CHARTERING. 

IN THIS PHASE OF THE CASE IT IS NECESSARY ONLY TO ADD THAT, IN VIEW
OF THE SPECIFIC STATEMENT CONTAINED IN THE CONFERENCE REPORT QUOTED
ABOVE,  FN15  APPELLANT IS NOT ENTITLED TO FOUND GRANDFATHER RIGHTS TO
TRANSPORTATION OTHER THAN CHARTERING UPON A SHOWING ONLY OF CHARTERING
OPERATIONS. 

WE THINK TOO THAT IT WOULD BE AN INVASION OF THE PROVINCE OF THE
COMMISSION FOR US TO INTERFERE WITH ITS ACTION IN FINDING THAT
APPELLANT UPON THE SHOWING IT MADE WAS NOT, AT THE TIME OF THE
APPLICATION, ENTITLED TO A PERMIT FOR A NEW OPERATION.  IT IS TRUE THAT
ITS CONFINEMENT, SINCE ABOUT 1940, TO OPERATIONS SUBSTANTIALLY, IF NOT
EXCLUSIVELY, IN TRANSPORTATION OF PETROLEUM PRODUCTS HAS BEEN INDUCED,
ACCORDING TO THE PROOF, BY THE WAR EMERGENCY, AND THAT THIS BUSINESS IN
ALL PROBABILITY WILL TERMINATE WITH THE EMERGENCY'S END.  IT IS
LIKEWISE TRUE THAT APPELLANT'S EQUIPMENT CAN BE CONVERTED READILY FOR
OTHER USES WHEN THAT OCCURS AND, UNLESS AUTHORITY IS OBTAINED TO
CONDUCT OPERATIONS UPON A SCALE SUFFICIENT TO ENABLE APPELLANT TO
EMPLOY IT PROFITABLY, THE BUSINESS MAY BE FORCED TO CLOSE OR REQUIRED
TO OPERATE UNECONOMICALLY.  NEVERTHELESS, IN VIEW OF THE FAILURE TO
MAKE SPECIFIC SHOWING OF SOME IMMEDIATE PROSPECT OF ENTERING UPON NEW
AND NONEXEMPT OPERATIONS, AND OF THE RANGE AND WEIGHT OF THE
COMMISSION'S DISCRETION IN RELATION TO SUCH APPLICATIONS, WE ARE NOT AT
LIBERTY TO INTERFERE WITH ITS ACTION. 

THE COMMISSION HAS SUGGESTED, IN THE BRIEF, THAT UPON ANOTHER
APPLICATION, ACCOMPANIED BY A SUFFICIENT SHOWING OF INTENDED "NEW
OPERATIONS," THE DESIRED PERMIT MAY BE GRANTED.  NO DOUBT, IN SUCH AN
EVENT, THE APPLICATION WILL BE CONSIDERED IN THE LIGHT OF THE ACT'S
INJUNCTION OF "FAIR AND IMPARTIAL REGULATION  ...  SO ADMINISTERED AS
TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES" OF THE TYPE OF
TRANSPORTATION IN WHICH THE BARRETT LINE HAS BEEN ENGAGED THROUGH FOUR
GENERATIONS OF RIVER LIFE. 

THE JUDGMENT IS AFFIRMED AS TO OPERATIONS OTHER THAN CHARTERING; AS
TO THEM, IT IS REVERSED, AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

FN1  SECTION 309(F) PROVIDES IN PART: 

"EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION AND SECTION 311, NO
PERSON SHALL ENGAGE IN THE BUSINESS OF A CONTRACT CARRIER BY WATER
UNLESS HE OR IT HOLDS AN EFFECTIVE PERMIT, ISSUED BY THE COMMISSION
AUTHORIZING SUCH OPERATION:  PROVIDED, THAT, SUBJECT TO SECTION 310, IF
ANY SUCH CARRIER OR A PREDECESSOR IN INTEREST WAS IN BONA FIDE
OPERATION AS A CONTRACT CARRIER BY WATER ON JANUARY 1, 1940, OVER THE
ROUTE OR ROUTES OR BETWEEN THE PORTS WITH RESPECT TO WHICH APPLICATION
IS MADE, AND HAS SO OPERATED SINCE THAT TIME (OR, IF ENGAGED IN
FURNISHING SEASONAL SERVICE ONLY, WAS IN BONA FIDE OPERATION DURING THE
SEASONAL PERIOD, PRIOR TO OR INCLUDING SUCH DATE, FOR OPERATIONS OF THE
CHARACTER IN QUESTION) EXCEPT, IN EITHER EVENT, AS TO INTERRUPTIONS OF
SERVICE OVER WHICH THE APPLICANT OR ITS PREDECESSOR IN INTEREST HAD NO
CONTROL, THE COMMISSION SHALL ISSUE SUCH PERMIT, WITHOUT FURTHER
PROCEEDINGS, IF APPLICATION FOR SUCH PERMIT IS MADE TO THE COMMISSION
AS PROVIDED IN SUBSECTION (G) ..."  49 U.S.C. SEC. 909(F). 

SEC. 311 TO TEMPORARY OPERATIONS. 

FN2  SECTION 309(G) PROVIDES: 

"...  SUBJECT TO SECTION 310, UPON APPLICATION THE COMMISSION SHALL
ISSUE SUCH PERMIT IF IT FINDS THAT THE APPLICANT IS FIT, WILLING, AND
ABLE PROPERLY TO PERFORM THE SERVICE PROPOSED AND TO CONFORM TO THE
PROVISIONS OF THIS PART AND THE REQUIREMENTS, RULES, AND REGULATIONS OF
THE COMMISSION THEREUNDER, AND THAT SUCH OPERATION WILL BE CONSISTENT
WITH THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION POLICY
DECLARED IN THIS ACT.  THE BUSINESS OF THE CARRIER AND THE SCOPE
THEREOF SHALL BE SPECIFIED IN SUCH PERMIT AND THERE SHALL BE ATTACHED
THERETO AT TIME OF ISSUANCE AND FROM TIME TO TIME THEREAFTER SUCH
REASONABLE TERMS, CONDITIONS, AND LIMITATIONS, CONSISTENT WITH THE
CHARACTER OF THE HOLDER AS A CONTRACT CARRIER BY WATER, AS ARE
NECESSARY TO CARRY OUT THE REQUIREMENTS OF THIS PART OR THOSE LAWFULLY
ESTABLISHED BY THE COMMISSION PURSUANT THERETO: PROVIDED, HOWEVER, THAT
NO TERMS, CONDITIONS, OR LIMITATIONS SHALL RESTRICT THE RIGHT OF THE
CARRIER TO SUBSTITUTE OR ADD CONTRACTS WITHIN THE SCOPE OF THE PERMIT,
OR TO ADD TO HIS EQUIPMENT, FACILITIES, OR SERVICE, WITHIN THE SCOPE OF
THE PERMIT, AS THE DEVELOPMENT OF THE BUSINESS AND THE DEMANDS OF THE
CARRIER'S PATRONS SHALL REQUIRE."  49 U.S.C. SEC. 909(G). 

FN3  THUS, ACCORDING TO THE TESTIMONY, THE LINE PIONEERED IN THE
TRANSPORTATION BY WATER OF PETROLEUM IN 1912 OR EARLIER; OF STEEL PIPES
FROM PITTSBURGH IN 1920; OF POWDER IN THE SAME YEAR; OF AUTOMOBILES TO
POINTS DOWNSTREAM FROM PITTSBURGH AND CINCINNATI; OF BAUXITE ORE FOR
THE ALUMINUM ORE COMPANY; OF PAVING BRICK TO NEW ORLEANS; OF RIPRAP
STONE USED BY THE ENGINEER CORPS FOR PAVING RIVER BANKS, ETC. 

FREQUENTLY THE DEMONSTRATION RESULTED IN APPELLANT'S SUPPLYING
EQUIPMENT TO THE SHIPPER WHEN THE LATTER TOOK OVER THE BUSINESS AS, FOR
INSTANCE, WHEN THE STANDARD OIL COMPANY OF LOUISIANA PURCHASED BOATS
AND BARGES TO CONTINUE THE DEMONSTRATED PETROLEUM OPERATION WITH ITS
OWN FLEET.  OTHER INSTANCES INCLUDED SALES TO ATLAS CEMENT CO. AND
CARNEGIE STEEL CO. 

MISCELLANEOUS SERVICES ALSO WERE RENDERED TO OTHER CARRIERS, BEFORE
AND AFTER 1936, INCLUDING RELIEF OF GROUNDED OR DISABLED VESSELS,
RAISING OF SUNKEN VESSELS, STORAGE OF BARGES OR VESSELS, ETC. 

FN4  THE OPINION OF DIVISION IV STATED:  "THE TERM 'BONA FIDE
OPERATIONS' HAS BEEN INTERPRETED TO MEAN A HOLDING OUT SUBSTANTIATED BY
ACTUAL OPERATIONS CONSISTENT THEREWITH.  ACTUAL OPERATIONS IN ORDER TO
SUBSTANTIATE A CLAIMED HOLDING OUT ON JANUARY 1, 1940, MUST HAVE BEEN
WITHIN A REASONABLE LENGTH OF TIME FROM THAT DATE.  WHAT CONSTITUTES A
REASONABLE LENGTH OF TIME MAY VARY WITH THE PARTICULAR CIRCUMSTANCES IN
EACH PROCEEDING BUT ONE SHIPMENT MADE IN 1936 AND OTHERS AT AN
INDEFINITE PERIOD OF TIME PRIOR THERETO ARE ENTIRELY TOO REMOTE TO
ESTABLISH BONA FIDE OPERATIONS ON JANUARY 1, 1940, AND CONTINUOUSLY
SINCE." 

FN5  THE GRANDFATHER RIGHTS WERE DENIED, OF COURSE, BECAUSE IN THE
COMMISSION'S VIEW, THE OPERATIONS SHOWN TO SUSTAIN THEM WERE TOO FAR
REMOVED IN THE PAST.  ON THE OTHER HAND, THE PERMIT FOR NEW OPERATIONS
WAS DENIED, ACCORDING TO ITS BRIEF, BECAUSE "APPELLANT PROPOSED NO
CHANGE IN MODE OF OPERATION BUT PLANNED TO CONTINUE DOING BUSINESS AS
IN THE PAST." 

FN6  EXEMPTION IS PROVIDED BY SEC. 303 FOR VARIOUS KINDS OF
TRANSPORTATION INCLUDING, UNDER LIMITATIONS SPECIFIED, CARRIAGE OF BULK
COMMODITIES WHEN THE VESSEL IS USED TO TRANSPORT NOT MORE THAN THREE,
SEC. 303(B); CARRIAGE OF LIQUID CARGOES IN BULK IN CERTIFIED TANKERS,
SEC. 303(D); TRANSPORTATION SOLELY WITHIN THE LIMITS OF A SINGLE
HARBOR, SEC. 303(G).    THE COMMISSION HAS UNIFORMLY DENIED PERMITS OR
CERTIFICATES WHERE ONLY EXEMPT TRANSPORTATION IS INVOLVED.  CF. UPPER
MISSISSIPPI TOWING CORP., COMMON CARRIER APPLICATION, 260 I.C.C. 292,
293; GALLAGHER BROS. SAND & GRAVEL CORP., CONTRACT CARRIER APPLICATION,
260 I.C.C. 224, 225. 

FN7  SECTION 302(E) IN PERTINENT PART IS AS FOLLOWS: 

"THE TERM 'CONTRACT CARRIER BY WATER' MEANS ANY PERSON WHICH, UNDER
INDIVIDUAL CONTRACTS OR AGREEMENTS, ENGAGES IN THE TRANSPORTATION
(OTHER THAN TRANSPORTATION REFERRED TO IN PARAGRAPH (D) AND THE
EXCEPTION THEREIN) BY WATER OF PASSENGERS OR PROPERTY IN INTERSTATE OR
FOREIGN COMMERCE FOR COMPENSATION. 

"THE FURNISHING FOR COMPENSATION (UNDER A CHARTER, LEASE, OR OTHER
AGREEMENT) OF A VESSEL, TO A PERSON OTHER THAN A CARRIER SUBJECT TO
THIS ACT, TO BE USED BY THE PERSON TO WHOM SUCH VESSEL IS FURNISHED IN
THE TRANSPORTATION OF ITS OWN PROPERTY, SHALL BE CONSIDERED TO
CONSTITUTE, AS TO THE VESSEL SO FURNISHED, ENGAGING IN TRANSPORTATION
FOR COMPENSATION BY THE PERSON FURNISHING SUCH VESSEL, WITHIN THE
MEANING OF THE FOREGOING DEFINITION OF 'CONTRACT CARRIER BY WATER'." 
49 U.S.C. SEC. 902(E). 

FN8  THREE DECISIONS WERE RENDERED IN THE HARMS MATTER.  THE FIRST
GAVE AUTHORITY TO FURNISH VESSELS LIMITED TO SCRAP IRON AND TO
SPECIFIED PORTS, 250 I.C.C. 513; THE SECOND REMOVED THE COMMODITY
LIMITATION, 250 I.C.C. 685; THE THIRD, BY THE FULL COMMISSION, REMOVED
THE "TERRITORIAL" LIMITATION, 260 I.C.C. 171. 

FN9  THE OPINION CONTINUED:  "THIS MATTER IS PARTICULARLY IMPORTANT
IN INSTANCES LIKE THE PRESENT WHERE AN APPLICANT IS SEEKING A
CERTIFICATE COVERING ALL COMMODITIES, OR GENERAL CARGO.  OBVIOUSLY NO
CARRIER ACTUALLY TRANSPORTS ALL COMMODITIES, AND THEREFORE THE BONA
FIDES OF AN APPLICANT'S OPERATIONS DEPEND ON THE REPRESENTATIVE
CHARACTER OF THE TRANSPORTATION PERFORMED.  IT MAY WELL BE THAT THE
CARRIER HOLDS ITSELF OUT TO, AND ACTUALLY DOES, TRANSPORT ALL TRAFFIC
OFFERED TO IT FROM AND TO ALL POINTS COVERED BY ITS APPLICATION BUT
THAT THE GREAT BULK OF SUCH TRANSPORTATION IS EXEMPT FROM REGULATION. 
IT SEEMS CLEAR THAT IF WE SHUT OUR EYES TO ALL OF APPLICANT'S
TRANSPORTATION EXCEPT THAT WHICH IS SUBJECT TO REGULATION, WE GET AN
INCOMPLETE AND DISTORTED PICTURE OF THE NATURE AND EXTENT OF ITS
OPERATIONS.  TO PLACE LIMITATIONS UPON 'GRANDFATHER' RIGHTS PREDICATED
UPON THAT VIEW WOULD BE UNJUST AND UNREASONABLE, AND IS NOT
CONTEMPLATED BY THE LAW."  250 I.C.C. 429, 434. 

FN10  H.R. NO. 2016, 76TH CONG., 3D SESS., 77. 

FN11  SEE, HOWEVER, W-764, UPPER MISSISSIPPI TOWING CORP., COMMON
CARRIER APPLICATIONS, 260 I.C.C. 292. 

FN12  IT IS SUGGESTED, BY THE PROTESTING INTERVENORS, THAT APPELLANT
HAS FAILED TO EXHAUST ITS ADMINISTRATIVE REMEDY BY NEGLECTING TO APPLY
A SECOND TIME FOR RECONSIDERATION BY THE COMMISSION AFTER THE FINAL
HARMS DECISION, CF. NOTE 8, ALTHOUGH IT WAS RENDERED AFTER THE
COMPLAINT WAS FILED IN THIS CASE.  THE SUGGESTION, IF FOLLOWED
GENERALLY, CONCEIVABLY COULD RESULT IN KEEPING APPLICANTS RUNNING BACK
AND FORTH BETWEEN COURT AND COMMISSION, IF NOT INTERMINABLY, THEN TO AN
EXTENT CERTAINLY NOT CONTEMPLATED BY THE EXHAUSTION DOCTRINE. 
APPELLANT FULFILLED THE REQUIREMENTS OF THAT DOCTRINE BY ITS
APPLICATION FOR RECONSIDERATION MADE TO THE ENTIRE COMMISSION AND ITS
DENIAL OF THE PETITION. 

FN13  CF. OPPENHEIM, THE NATIONAL TRANSPORTATION POLICY AND INTER
CARRIER COMPETITIVE RATES (1945) 27 FF. 

FN14  COMPARE MORAN TOWING & TRANSP.  CO., APPLICATIONS, 260 I.C.C.
269, 273; THAMES RIVER LINE, COMMON CARRIER APPLICATION, 250 I.C.C.
245; AND OTHER CASES IN THE LATTER VOLUME AT PP. 106, 117, 179, 353,
370 AND 599, WITH, E.G., JACK COLE CO. V. UNITED STATES, 41 M.C.C. 657,
59 F.SUPP.  10, AFFIRMED PER CURIAM, 324 U.S. 822; GREGG CARTAGE CO. V.
UNITED STATES, 316 U.S. 74. 

FN15  CF. TEXT AT NOTE 10. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER, AND
MR. JUSTICE JACKSON, DISSENTING. 

THE COURT, IN REJECTING THE REFUSAL OF THE INTERSTATE COMMERCE
COMMISSION TO GRANT A PERMIT AS A CONTRACT CARRIER BY WATER FOR CHARTER
PURPOSES, IS GREATLY INFLUENCED BY AN ALLEGED CONFLICT IN THE
COMMISSION'S DETERMINATIONS.  COMPARE C.F. HARMS CO., CONTRACT CARRIER
APPLICATION, 260 I.C.C. 171; RUSSELL BROS. TOWING CO., COMMON CARRIER
APPLICATION, 250 I.C.C. 429; MORAN TOWING & TRANSPORTATION CO.,
APPLICATIONS, 260 I.C.C. 269, WITH UPPER MISSISSIPPI TOWING CORP.,
COMMON CARRIER APPLICATIONS, 260 I.C.C. 292.  ASSUMING SUCH A CONFLICT,
IT IS OUR BUSINESS TO DEAL WITH THE CASE NOW HERE AND NOT TO BE
CONCERNED WITH APPARENT INCONSISTENCIES IN ADMINISTRATIVE
DETERMINATIONS.  IF THE COMMISSION HAS KEPT WITHIN THE BOUNDS OF THE
STATUTE IN THIS CASE, ITS ORDER SHOULD BE SUSTAINED.  WE THINK THAT THE
INTERPRETATION OF SEC. 302(E) MADE BY THE COMMISSION WAS PROPER. 
CERTAINLY, THE CONSTRUCTION OF THIS PROVISION INVOLVES CONSIDERATIONS
SO BOUND UP WITH THE TECHNICAL SUBJECT MATTER THAT, EVEN THOUGH THE
NEUTRAL LANGUAGE OF THE STATUTE PERMITS, AS A MATTER OF ENGLISH, THE
CONSTRUCTION WHICH THE COURT NOW MAKES, THE EXPERIENCE OF THE
COMMISSION SHOULD PREVAIL.  COMPARE GRAY V. POWELL, 314 U.S. 402. 
..END :







FEDERATION OF LABOR V. MCADORY, 325 U.S. 450 


NO. 588.  ARGUED APRIL 3, 4, 1945.  - DECIDED JUNE 11, 1945.  - WRIT
DISMISSED. 


1.  THE BRADFORD ACT (ALABAMA LAWS OF 1943, NO. 298) IS A
COMPREHENSIVE ENACTMENT REGULATING THE ACTIVITIES AND AFFAIRS OF LABOR
ORGANIZATIONS HAVING MEMBERS WHO ARE EMPLOYED IN ALABAMA.  SECTION 7
REQUIRES EVERY LABOR ORGANIZATION "FUNCTIONING" OR "DESIRING TO
FUNCTION" WITHIN THE STATE TO FILE A COPY OF THE CONSTITUTION AND BY
LAWS OF ITS OWN AND ANY PARENT ORGANIZATION, AND TO FILE ANNUALLY A
REPORT GIVING PRESCRIBED INFORMATION.  THE SECTION MAKES IT UNLAWFUL
FOR ANY OFFICER OR AGENT TO COLLECT DUES OR OTHER MONIES FROM ANY
MEMBER WHILE THE LABOR ORGANIZATION IS IN DEFAULT WITH RESPECT TO
FILING OF THE ANNUAL REPORT.  SECTION 15 MAKES IT UNLAWFUL FOR ANY
PERSON OR LABOR ORGANIZATION TO COLLECT, RECEIVE OR DEMAND ANY FEE,
ASSESSMENT OR MONEY - OTHER THAN INITIATION FEES OR DUES - FOR A "WORK
PERMIT" OR "AS A CONDITION FOR THE PRIVILEGE OF WORK."  SECTION 16
MAKES IT UNLAWFUL FOR ANY "EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, OR
SUPERVISORY EMPLOYEE TO BE A MEMBER IN, OR TO BE ACCEPTED FOR
MEMBERSHIP BY, ANY LABOR ORGANIZATION" WHICH ADMITS TO MEMBERSHIP
EMPLOYEES OTHER THAN PERSONS OF THESE CLASSES; BUT PROVIDES THAT THE
INSURANCE CONTRACT NOW IN EXISTENCE AND IN FORCE."  SECTION 18 IMPOSES
CIVIL LIABILITY AND CRIMINAL PENALTIES FOR VIOLATIONS OF THE ACT. 
PETITIONERS (NATIONAL AND LOCAL LABOR ORGANIZATIONS AND AN INDIVIDUAL
MEMBER) SOUGHT A DECLARATORY JUDGMENT OF UNCONSTITUTIONALITY OF SECS.
7, 15 AND 16.  HELD: 

(A)  THE CONTENTION THAT THE ACT DENIES EQUAL PROTECTION OF THE LAWS,
IN VIOLATION OF THE FEDERAL CONSTITUTION, BECAUSE ITS PROVISIONS, OR
SOME OF THEM, DO NOT APPLY TO BUSINESS CORPORATIONS OR ASSOCIATIONS OR
TO LABOR ORGANIZATIONS WHICH ARE SUBJECT TO THE RAILWAY LABOR ACT, IS
WITHOUT SUBSTANCE.  P. 471. 

THE STATE IS NOT BOUND TO REGULATE ALL TYPES OF ORGANIZATIONS OR
NONE; IT MAY BEGIN WITH SUCH AS IN ITS JUDGMENT MOST NEED REGULATION
AND MAY EXCLUDE THOSE BELIEVED TO BE ALREADY APPROPRIATELY REGULATED BY
EITHER STATE OR NATIONAL LEGISLATION.  P. 472. 

(B)  OTHER ISSUES AS TO THE CONSTITUTIONAL VALIDITY OF THE ACT, AS
PRESENTED BY THE RECORD BEFORE THIS COURT, ARE INAPPROPRIATE FOR
DECISION IN A DECLARATORY JUDGMENT PROCEEDING.  P. 472. 

2.  THIS COURT CAN NOT SAY THAT SECS. 7 AND 18 COULD NOT BE SO
CONSTRUED AND APPLIED AS NOT TO DENY THE CONSTITUTIONAL RIGHT OF FREE
SPEECH AND ASSEMBLY; AND, IN THE ABSENCE OF ANY AUTHORITATIVE
CONSTRUCTION OF THE SECTIONS BY THE STATE COURTS, AND UPON A RECORD
WHICH PRESENTS NO CONCRETE SET OF FACTS TO WHICH THE ACT IS TO BE
APPLIED, THE CASE IN THIS ASPECT IS PLAINLY NOT ONE TO BE DISPOSED OF
BY THE DECLARATORY JUDGMENT PROCEDURE.  P. 460. 

(A)  THE REQUIREMENTS FOR A JUSTICIABLE CASE OR CONTROVERSY ARE NO
LESS STRICT IN A DECLARATORY JUDGMENT PROCEEDING THAN IN ANY OTHER TYPE
OF SUIT.  P. 461. 

(B)  IT IS THE PRACTICE OF THIS COURT NOT TO DECIDE ABSTRACT,
HYPOTHETICAL OR CONTINGENT QUESTIONS; OR TO DECIDE ANY CONSTITUTIONAL
QUESTION IN ADVANCE OF THE NECESSITY FOR ITS DECISION; OR TO FORMULATE
A RULE OF CONSTITUTIONAL LAW BROADER THAN IS REQUIRED BY THE PRECISE
FACTS TO WHICH IT IS TO BE APPLIED; OR TO DECIDE ANY CONSTITUTIONAL
QUESTION EXCEPT WITH REFERENCE TO THE PARTICULAR FACTS TO WHICH IT IS
TO BE APPLIED.  P. 461. 

(C)  THE DECLARATORY JUDGMENT PROCEDURE MAY BE RESORTED TO ONLY IN
THE SOUND DISCRETION OF THE COURT AND WHERE THE INTERESTS OF JUSTICE
WILL BE ADVANCED AND AN ADEQUATE AND EFFECTIVE JUDGMENT MAY BE
RENDERED.  P. 462. 

3.  THE RECORD AFFORDS AN INADEQUATE FACTUAL BASIS FOR DETERMINING
WHETHER SEC. 16 IS APPLICABLE TO ANY OF PETITIONERS' MEMBERS, OR IF SO
WHETHER AS APPLIED TO THEM THE ACT WOULD VIOLATE FREEDOM OF SPEECH AND
ASSEMBLY.  P. 462. 

4.  NOR MAY THE VALIDITY OF SEC. 16 BE HERE DETERMINED, IN VIEW OF
THE STATE COURT'S CONSTRUCTION OF THE SECTION AS INAPPLICABLE WHEREVER
IT WOULD OTHERWISE "INTERFERE WITH OR VOID ANY INSURANCE CONTRACT NOW
IN EXISTENCE AND IN FORCE," AND SINCE IT DOES NOT APPEAR FROM THE
RECORD WHETHER AND TO WHAT EXTENT THE SECTION CAN BE DEEMED APPLICABLE
TO PETITIONERS' MEMBERS BECAUSE OF EXISTING INSURANCE ARRANGEMENTS.  P.
463. 

5.  THE CONSTITUTIONAL VALIDITY OF A STATUTE MAY BE ATTACKED, IN
DECLARATORY JUDGMENT PROCEEDINGS AS IN ANY OTHER, ONLY BY THOSE TO WHOM
THE STATUTE APPLIES AND WHO ARE ADVERSELY AFFECTED BY IT.  P. 463. 

6.  UNCERTAINTY AS TO THE CONSTRUCTION OF SECS. 7 AND 16, AND
UNCERTAINTY AS TO THE FACTS TO WHICH THEY ARE TO BE APPLIED, PRECLUDE
AN ADJUDICATION UPON THIS RECORD THAT THESE SECTIONS CONFLICT WITH THE
NATIONAL LABOR RELATIONS ACT.  PP. 464, 467. 

(A)  AS NONE OF THE PETITIONERS ARE SHOWN TO FUNCTION AS BARGAINING
REPRESENTATIVES FOR EMPLOYEES IN INDUSTRIES SUBJECT TO THE NATIONAL
LABOR RELATIONS ACT, OR, IF THEY DO SO, TO FUNCTION EXCLUSIVELY AS
REPRESENTATIVES FOR SUCH EMPLOYEES, IT CAN NOT BE SAID THAT SECS. 7 AND
16 COULD IN NO CIRCUMSTANCES BE VALIDLY APPLIED TO ANY OF THEM; AND THE
COURT IS BOUND TO ASSUME THE EXISTENCE OF ANY STATE OF FACTS WHICH
WOULD SUSTAIN THE SECTIONS WHEN THEY ARE ASSAILED AS UNCONSTITUTIONAL. 
P. 465. 

(B)  THE COURT CAN NOT ASSUME THAT THE FAILURE TO FILE REPORTS WILL
RESULT IN THE EXCLUSION OF PETITIONERS, OR ANY OF THEM, FROM
FUNCTIONING IN THE STATE, OR WILL VISIT ANY CONSEQUENCES UPON THEM
OTHER THAN THE PENALTY FOR FAILURE TO FILE; NOR SAY, IN THE ABSENCE OF
ANY SHOWING TO THE CONTRARY, THAT THE FILING OF INFORMATION RETURNS
WILL IMPOSE SUCH BURDENS ON ANY OF PETITIONERS AS TO INTERFERE WITH THE
PERFORMANCE OF THEIR FUNCTIONS UNDER THE NATIONAL LABOR RELATIONS ACT
IN CASES WHERE THAT ACT IS APPLICABLE.  P. 466. 

(C)  THE VALIDITY OF SEC. 16 AND WHETHER IT CONFLICTS WITH THE
NATIONAL LABOR RELATIONS ACT CAN NOT BE CONSIDERED UPON THIS RECORD, IN
VIEW OF THE RULING OF THE STATE COURT THAT THE SECTION IS INAPPLICABLE
WHEREVER IT WOULD OTHERWISE INTERFERE WITH OR RENDER INEFFECTIVE ANY
EXISTING CONTRACT OF INSURANCE, AND IN VIEW OF THE FAILURE OF THE
PETITIONERS TO SHOW TO WHAT EXTENT SEC. 16 AS SO CONSTRUED CAN BE TAKEN
TO BE APPLICABLE TO ANY OF THEM BECAUSE OF EXISTING INSURANCE
ARRANGEMENTS.  P. 466. 

(D)  A STATE STATUTE MAY BE VOIDED AS IN CONFLICT WITH FEDERAL
LEGISLATION ONLY IF THE CONFLICT IS CLEARLY SHOWN; AND THEN ONLY WHERE
THE COMPLAINANT SHOWS THAT HE IS ADVERSELY AFFECTED BY THE ALLEGED
CONFLICT.  P. 467. 

7.  SINCE THE RECORD PRESENTS NO CONCRETE CASE IN WHICH SEC. 15 HAS
BEEN APPLIED, THE COURT CAN NOT SAY WHETHER ITS APPLICATION IN
CIRCUMSTANCES NOT NOW PRESENTED WOULD BE SO ARBITRARY AND UNREASONABLE
AS TO DENY DUE PROCESS.  P. 468. 

8.  THE CONTENTION THAT THE REQUIREMENT OF SEC. 7 AS TO THE FILING OF
INFORMATION STATEMENTS AND REPORTS IS SO BURDENSOME ON LABOR
ORGANIZATIONS AS TO DENY DUE PROCESS OF LAW IS NOT SUPPORTED BY THE
FACTS OF RECORD.  P. 469. 

9.  THE OBJECTION THAT SECS. 7 AND 16 ARE UNCONSTITUTIONAL AS VAGUE
AND UNCERTAIN CAN NOT APPROPRIATELY BE CONSIDERED IN A DECLARATORY
JUDGMENT PROCEEDING IN THE FEDERAL COURTS, IN ADVANCE OF THEIR
AUTHORITATIVE CONSTRUCTION BY A STATE COURT.  P. 470. 

10.  THE EXTENT TO WHICH THE DECLARATORY JUDGMENT PROCEDURE MAY BE
USED IN THE FEDERAL COURTS TO CONTROL STATE ACTION LIES IN THE SOUND
DISCRETION OF THE COURT.  IT WOULD BE AN ABUSE OF DISCRETION FOR THIS
COURT TO MAKE A PRONOUNCEMENT ON THE CONSTITUTIONALITY OF A STATE
STATUTE BEFORE IT PLAINLY APPEARED THAT THE NECESSITY FOR IT HAD
ARISEN, OR WHEN THE COURT IS LEFT IN UNCERTAINTY, WHICH IT CAN NOT
AUTHORITATIVELY RESOLVE, AS TO THE MEANING OF THE STATUTE WHEN APPLIED
TO ANY PARTICULAR STATE OF FACTS.  P. 471. 

11.  IN THE EXERCISE OF THIS COURT'S DISCRETIONARY POWER TO GRANT OR
WITHHOLD THE DECLARATORY JUDGMENT REMEDY IT IS OF CONTROLLING
SIGNIFICANCE THAT IT IS IN THE PUBLIC INTEREST TO AVOID THE NEEDLESS
DETERMINATION OF CONSTITUTIONAL QUESTIONS AND THE NEEDLESS OBSTRUCTION
TO THE DOMESTIC POLICY OF THE STATES BY FORESTALLING STATE ACTION IN
CONSTRUING AND APPLYING ITS OWN STATUTES.  P. 471. 

ALABAMA STATE FEDERATION OF LABOR ET AL. V. MCADORY ET AL. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

CERTIORARI, 323 U.S. 703, TO REVIEW A JUDGMENT, 246 ALA. 1, 18 SO.2D
810, UPHOLDING, IN A DECLARATORY JUDGMENT PROCEEDING, THE
CONSTITUTIONALITY OF PROVISIONS OF A STATE STATUTE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS CASE WAS BROUGHT IN THE STATE COURTS OF ALABAMA FOR A
DECLARATORY JUDGMENT ADJUDICATING THE CONSTITUTIONAL VALIDITY OF
CERTAIN SECTIONS OF THE BRADFORD ACT, NO. 298, ALABAMA LAWS OF
1943(CODE 1943, TIT. 26 SECS. 376 ET SEQ.).  THE PRINCIPAL QUESTION IS
WHETHER PETITIONERS' CONTENTIONS ARE SO RELATED TO ANY CASE OR
CONTROVERSY PRESENTED BY THE RECORD THAT THIS COURT MAY APPROPRIATELY
PASS UPON THEM IN A DECLARATORY JUDGMENT PROCEEDING. 

PETITIONERS ARE FOUR AFFILIATED, UNINCORPORATED LABOR ORGANIZATIONS,
THE AMERICAN FEDERATION OF LABOR, AND THE UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, WHICH ARE NATIONAL LABOR
ORGANIZATIONS, AND TWO ALABAMA LABOR ORGANIZATIONS, AND AN INDIVIDUAL
WHO IS A CITIZEN OF ALABAMA AND A MEMBER OF PETITIONER, LOCAL UNION NO.
103, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA. 

PETITIONERS BROUGHT THE PRESENT SUIT IN THE ALABAMA CIRCUIT COURT FOR
JEFFERSON COUNTY AGAINST RESPONDENTS, OFFICERS OF JEFFERSON COUNTY,
CHARGED WITH THE DUTY OF ENFORCING THE BRADFORD ACT.  THEY PRAYED A
DECLARATORY JUDGMENT THAT THE ACT AS A WHOLE AND SPECIFICALLY SECS. 7,
15, AND 16, AMONG OTHERS, ARE UNCONSTITUTIONAL AND VOID UNDER THE
FEDERAL AND STATE CONSTITUTIONS. 

AFTER A TRIAL UPON A STIPULATED STATEMENT OF FACTS, CERTAIN
AFFIDAVITS AND THE TESTIMONY OF WITNESSES, THE CIRCUIT COURT HELD THE
ACT AS A WHOLE, AND SPECIFICALLY SEC. 7 OF THE ACT, TO BE VALID AND
CONSTITUTIONAL.  IT DECLINED AS "INAPPROPRIATE" TO MAKE DECLARATIONS AS
TO THE VALIDITY OF SECS. 15 AND 16.  ON APPEAL, PETITIONERS ASSIGNING
AS ERROR THE CIRCUIT COURT'S FAILURE TO PASS UPON THE CONSTITUTIONALITY
OF SECS. 15 AND 16, AND TO DECLARE THOSE SECTIONS AND SEC. 7
UNCONSTITUTIONAL, THE STATE SUPREME COURT HELD ALL THREE SECTIONS VALID
AND CONSTITUTIONAL.  246 ALA. 1, 18 SO.2D 810.  WE GRANTED CERTIORARI,
323 U.S. 703, UPON A PETITION WHICH PRESENTED THE CONTENTIONS FN1  THAT
SECS. 7 AND 16 IMPOSE A PRIOR GENERAL RESTRAINT ON PETITIONERS' FREEDOM
OF SPEECH AND ASSEMBLY GUARANTEED BY THE FIRST AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION AND CONFLICT WITH THE NATIONAL LABOR
RELATIONS ACT BY DEPRIVING THEM OF RIGHTS UNDER IT; THAT SECS. 7, 15
AND 16 ARE AN ARBITRARY AND UNREASONABLE EXERCISE OF THE STATE POLICE
POWER WHICH DENIES PETITIONERS DUE PROCESS AND EQUAL PROTECTION OF THE
LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT; AND THAT SECS. 15 AND 16
ARE SO AMBIGUOUS AND UNCERTAIN IN THEIR REQUIREMENTS AS TO DENY
PETITIONERS DUE PROCESS OF LAW. 

THE BRADFORD ACT IS A COMPREHENSIVE ENACTMENT REGULATING LABOR UNIONS
HAVING MEMBERS WHO ARE EMPLOYEES WORKING IN THE STATE OF ALABAMA.  IT
ESTABLISHES A DEPARTMENT OF LABOR UNDER THE SUPERVISION AND CONTROL OF
A DIRECTOR OF LABOR; IT SETS UP MEDIATION MACHINERY FOR THE SETTLEMENT
OF LABOR DISPUTES.  IT REQUIRES ALL LABOR ORGANIZATIONS WITHIN THE
PROVISIONS OF THE ACT TO FILE WITH THE DEPARTMENT VARIOUS REPORTS AND
FINANCIAL STATEMENTS AND TO PAY FILING FEES.  IT REGULATES SOME PHASES
OF THE INTERNAL AFFAIRS AND ACTIVITIES OF LABOR ORGANIZATIONS, AND
VARIOUS ASPECTS OF PICKETING, BOYCOTTING AND STRIKING.  IT IMPOSES
CIVIL LIABILITY AND CRIMINAL PENALTIES FOR VIOLATION OF ITS
PROVISIONS. 

ALABAMA SHALL WITHIN SIXTY DAYS AFTER THE EFFECTIVE DATE OF THIS
CHAPTER, AND EVERY LABOR ORGANIZATION HEREAFTER DESIRING TO FUNCTION IN
ALABAMA SHALL, BEFORE DOING SO, FILE A COPY OF ITS CONSTITUTION AND ITS
BY-LAWS AND A COPY OF THE CONSTITUTION AND BY-LAWS OF THE NATIONAL OR
INTERNATIONAL UNION, IF ANY, TO WHICH THE LABOR ORGANIZATION BELONGS,
WITH THE DEPARTMENT OF LABOR  ...  ALL CHANGES OR AMENDMENTS TO THE
CONSTITUTION OR BY-LAWS, LOCAL, NATIONAL OR INTERNATIONAL, ADOPTED
SUBSEQUENT TO THEIR ORIGINAL FILING MUST BE FILED WITH THE DEPARTMENT
OF LABOR WITHIN THIRTY DAYS AFTER" THEIR ADOPTION. 

IN THE STATE OF ALABAMA AND HAVING TWENTY-FIVE OR MORE MEMBERS," SHALL
FILE ANNUALLY WITH EVERY MEMBER OF THE ORGANIZATION AND WITH THE
DIRECTOR OF THE DEPARTMENT OF LABOR A VERIFIED WRITTEN REPORT GIVING
DETAILED INFORMATION AS TO ITS NAME, THE LOCATION OF ITS OFFICES, THE
OFFICERS OF THE ORGANIZATION, THEIR SALARIES, WAGES, BONUSES, AND OTHER
REMUNERATION, THE DATE OF THE ELECTION OF OFFICERS, THE NUMBER OF ITS
PAID UP MEMBERS, AND A COMPLETE FINANCIAL STATEMENT SHOWING ALL
RECEIPTS AND DISBURSEMENTS WITH THE NAMES OF RECIPIENTS AND PURPOSE
THEREOF, AND A COMPLETE STATEMENT OF THE MONEY AND PROPERTY OWNED BY
THE ORGANIZATION.  SECTION 7 ALSO DECLARES, "IT SHALL BE UNLAWFUL FOR
ANY FISCAL OR OTHER OFFICER OR AGENT OF ANY LABOR ORGANIZATION TO
COLLECT OR ACCEPT PAYMENT OF ANY DUES, FEES, ASSESSMENTS, FINES, OR ANY
OTHER MONIES FROM ANY MEMBER WHILE SUCH LABOR ORGANIZATION IS IN
DEFAULT WITH RESPECT TO FILING THE ANNUAL REPORT  ..." 

ANY LABOR ORGANIZER, ANY OFFICER, AGENT, REPRESENTATIVE OR MEMBER OF
ANY LABOR ORGANIZATION, OR ANY OTHER PERSON, TO COLLECT, RECEIVE OR
DEMAND  ...  FROM ANY PERSON, ANY FEE, ASSESSMENT, OR SUM OF MONEY
WHATSOEVER, AS A WORK PERMIT OR AS A CONDITION FOR THE PRIVILEGE OF
WORK; PROVIDED, HOWEVER, THIS SHALL NOT PREVENT THE COLLECTION OF
INITIATION FEES OR DUES." 

ADMINISTRATIVE, PROFESSIONAL, OR SUPERVISORY EMPLOYEE TO BE A MEMBER
IN, OR TO BE ACCEPTED FOR MEMBERSHIP BY, ANY LABOR ORGANIZATION, THE
CONSTITUTION AND BY-LAWS OF WHICH PERMIT MEMBERSHIP TO EMPLOYEES OTHER
THAN THOSE IN EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL OR SUPERVISORY
CAPACITIES, OR WHICH IS AFFILIATED WITH ANY LABOR ORGANIZATION WHICH
PERMITS MEMBERSHIP TO EMPLOYEES OTHER THAN THOSE IN AN EXECUTIVE,
ADMINISTRATIVE, PROFESSIONAL, OR SUPERVISORY CAPACITY.  THE PROVISIONS
OF THIS SECTION SHALL NOT BE CONSTRUED SO AS TO INTERFERE WITH OR VOID
ANY INSURANCE CONTRACT NOW IN EXISTENCE AND IN FORCE."  SECTION 18
ENACTS, "IF ANY LABOR ORGANIZATION VIOLATES ANY PROVISION OF THIS
CHAPTER, IT SHALL BE PENALIZED CIVILLY IN A SUM NOT EXCEEDING ONE
THOUSAND DOLLARS ($1,000.00) FOR EACH SUCH VIOLATION  ...  THE DOING OF
ANY ACT FORBIDDEN OR DECLARED UNLAWFUL BY THE PROVISIONS OF THIS
CHAPTER  ...  SHALL CONSTITUTE A MISDEMEANOR, AND SHALL BE PUNISHABLE
BY A FINE  ...  OR BY IMPRISONMENT." 

           INFRINGEMENT OF FREEDOM OF SPEECH AND ASSEMBLY BY

                          SECTIONS 7 AND 16. 

PETITIONERS DO NOT DENY THE AUTHORITY OF THE STATE TO REGULATE LABOR
UNIONS.  THEY DO NOT CONTEND THAT ALL THEIR PRACTICES SHOWN BY THE
RECORD OR ALL THEIR ACTIVITIES REQUIRED TO BE REPORTED BY SEC. 7 ARE
WITHIN THE PROTECTION OF THE CONSTITUTIONAL PROVISIONS PRESERVING THE
RIGHT TO FREE SPEECH OR ASSEMBLY, OR THAT THE REQUIREMENT OF SEC. 7
THAT PETITIONERS FILE REPORTS, OF ITSELF, INFRINGES THEIR RIGHT OF FREE
SPEECH.  BUT CONSTRUING THE WORDS OF SEC. 7 WHICH PROVIDE THAT LABOR
ORGANIZATIONS "FUNCTIONING" IN THE STATE SHALL FILE THE PRESCRIBED
STATEMENTS OR REPORTS, AND THE FURTHER REQUIREMENT THAT EVERY LABOR
ORGANIZATION "DESIRING TO FUNCTION" IN ALABAMA SHALL, BEFORE DOING SO,
FILE CERTAIN PRESCRIBED DOCUMENTS, PETITIONERS ATTACK THE SECTION AS A
LICENSING PROVISION AND ASSAIL ITS VALIDITY ON THE GROUND THAT AS SUCH
IT IS A RESTRAINT UPON THEIR FREEDOM OF SPEECH AND ASSEMBLY. 

NO OFFICER OR REPRESENTATIVE OF THE STATE IS EMPOWERED BY THE TERMS
OF THE SECTION TO GRANT OR WITHHOLD A LICENSE AUTHORIZING A LABOR
ORGANIZATION TO FUNCTION WITHIN THE STATE.  THE STATE SUPREME COURT SO
HELD IN THIS CASE.  THE ARGUMENT IS THAT COMPLIANCE WITH SEC. 7 IS MADE
PREREQUISITE TO THE FUNCTIONING OF ANY LABOR ORGANIZATION WITHIN THE
STATE, AND THAT ONE OF THE FUNCTIONS OF PETITIONERS IS THE EXERCISE OF
THEIR RIGHT OF FREEDOM OF SPEECH AND ASSEMBLY TO ADVANCE THE INTERESTS
OF LABOR AND LABOR ORGANIZATIONS BY WINNING PUBLIC SUPPORT FOR THEIR
PROGRAM, THROUGH EDUCATION AND DISSEMINATION OF INFORMATION.  THEY SAY
THAT THE REQUIREMENT OF A LICENSE, BEFORE A LABOR ORGANIZATION CAN
FUNCTION WITHIN THE STATE, TO BE SECURED BY FILING THE REQUISITE
STATEMENTS AND REPORTS, IS AN UNCONSTITUTIONAL RESTRAINT ON THEIR RIGHT
OF FREE SPEECH AND ASSEMBLY.  SPECIFICALLY THEY ARGUE THAT IF THEY FAIL
TO FILE ANY OF THE STATEMENTS REQUIRED BY SEC. 7 AND AFTERWARDS
FUNCTION AS A LABOR UNION WITHIN THE STATE, BY EXERCISING THEIR RIGHT
OF FREE SPEECH AND ASSEMBLY, THEY MAY BE SUBJECTED TO THE CRIMINAL
PENALTIES IMPOSED BY SEC. 18, AND MAY ALSO BE ENJOINED FROM SO
FUNCTIONING BY A CIVIL SUIT IN EQUITY IN THE STATE COURTS. 

IN CONSIDERING THIS OBJECTION TO SEC. 7 THE SUPREME COURT OF ALABAMA
DID NOT ELABORATE ON THE MEANING OF THE TERMS "FUNCTION" OR
"FUNCTIONING" AS USED IN THE STATUTE.  IT INDICATED THAT THEY EMBRACE
THE CONDUCT OF THE BUSINESS ACTIVITIES OF LABOR ORGANIZATIONS WITHIN
THE STATE, SUCH AS THE ASSESSMENT AND COLLECTION OF FINES AND DUES, THE
COLLECTION OF MONIES AND THEIR DISBURSEMENT, THE MANAGEMENT OF THEIR
PROPERTY, THE ELECTION OF THEIR OFFICERS AND THE APPOINTMENT OF THEIR
AGENTS, AND THE MAINTENANCE AND DEFENSE OF SUITS IN THE COURTS.  AND IT
ADDED "'FUNCTION,' AS USED IN THIS ACT, SIMPLY MEANS A LABOR
ORGANIZATION, WHETHER INCORPORATED OR NOT, ENGAGED IN BUSINESS IN THIS
STATE, AND IN THE CHARACTER OF BUSINESS THUS INDICATED, FOR THE
PROMOTION OF THE INTERESTS OF ITS MEMBERS.  TRUE, AS A PART OF ITS
FUNCTIONING, AND A PART ONLY, THE ASSEMBLAGE OF ITS MEMBERS FOR
DISCUSSION IS HAD, BUT THIS IS MERELY INCIDENTAL." 

THIS LANGUAGE MAY BE TAKEN TO SUGGEST THAT ASSEMBLIES OF LABOR
ORGANIZATIONS WHICH ARE INCIDENTAL TO THEIR BUSINESS ACTIVITIES ARE
WITHIN THE REACH OF THE ACT.  BUT WE ARE LEFT UNINFORMED, AND, WITHOUT
THE APPLICATION OF THE STATUTE BY THE STATE COURTS TO SOME CONCRETE SET
OF FACTS, WE ARE UNABLE TO SAY, WHETHER THE STATUTE IS TO BE CONSTRUED
AS MEANING THAT "FUNCTIONING" BY A LABOR ORGANIZATION WHICH HAS NOT
COMPLIED WITH SEC. 7 BY FILING THE PRESCRIBED REPORTS IS ITSELF A
VIOLATION OF THE ACT SUBJECTING IT TO CUMULATIVE PENALTIES UNDER SEC.
18. 

ON THE FACE OF THE STATUTE FAILURE TO FILE THE REQUIRED STATEMENTS OR
REPORTS ENTAILS A CIVIL AND POSSIBLY ALSO A CRIMINAL PENALTY.  THE
COLLECTION OF DUES AFTER SUCH A FAILURE IS BY SEC. 7 DECLARED TO BE
UNLAWFUL AND IS THEREFORE BY SEC. 18 MADE A MISDEMEANOR.  BUT THE
STATUTE NOWHERE IN TERMS MAKES IT AN OFFENSE OR UNLAWFUL FOR A LABOR
ORGANIZATION TO CONTINUE OTHERWISE TO FUNCTION AFTER FAILING TO FILE
THE REQUIRED REPORT OR STATEMENT.  SO FAR AS APPEARS THE SUPREME COURT
OF ALABAMA HAS NOT CONSTRUED THE PENAL PROVISIONS OF THE STATUTE OR
DETERMINED THAT THE FAILURE OF A LABOR ORGANIZATION TO FILE THE
DOCUMENTS SPECIFIED IN SEC. 7 ENTAILS ANY CONSEQUENCES OTHER THAN THE
SPECIFIED PENALTY FOR THE FAILURE TO FILE, WITH A FURTHER PENALTY IF
WITHOUT FILING THE LABOR ORGANIZATION OR ITS OFFICERS CONTINUE TO
COLLECT DUES.  NEITHER OF THESE SANCTIONS IS ASSERTED OR SHOWN TO
OPERATE AS AN INJUNCTION RESTRAINING FREEDOM OF SPEECH OR ASSEMBLY. 
NOR DOES IT APPEAR THAT THE ALABAMA COURTS HAVE HELD THAT A LABOR
ORGANIZATION FAILING TO FILE MAY BE ENJOINED FROM FUNCTIONING. 

MOREOVER IF "FUNCTIONING" AFTER FAILURE TO FILE IS ITSELF A VIOLATION
WE DO NOT KNOW WHETHER THE STATUTE WILL BE INTERPRETED AS PENALIZING A
UNION MERELY FOR ENGAGING IN THOSE BUSINESS ACTIVITIES WHICH ARE NOT
CONTENDED TO BE WITHIN THE PROTECTION OF THE RIGHT TO FREE SPEECH OR,
ON THE OTHER HAND, FOR HOLDING MEETINGS WHICH ARE WHOLLY UNRELATED TO
ITS BUSINESS ACTIVITIES.  IN ANY EVENT WE ARE NOT ADVISED, NOR HAS THE
STATE COURT SAID, WHAT ASSEMBLIES OR MEETINGS OF A LABOR ORGANIZATION
ARE SO RELATED TO ITS BUSINESS ACTIVITIES AS TO BE DEEMED "INCIDENTAL"
TO THEM SO AS TO BE WITHIN THE REACH OF THE STATUTE. 

OBVIOUSLY NO DECISION OF THE CONSTITUTIONAL ISSUES NOW POSED COULD BE
MADE IN THIS SUIT, AND NO OPINION COULD BE WRITTEN, WITHOUT CONSIDERING
ALL AND DECIDING SOME AT LEAST OF THESE QUESTIONS OF STATUTORY
INTERPRETATION.  NO STATE COURT HAS DECIDED THEM, BRIEFS AND ARGUMENT
OFFER US LITTLE AID IN THEIR SOLUTION, AND NO SOLUTION WHICH WE COULD
TENDER WOULD BE CONTROLLING ON THE STATE COURTS.  THE RECORD SUPPLIES
US WITH NO CONCRETE STATE OF FACTS TO WHICH THE CHALLENGED SECTIONS,
WHEN CONSTRUED, COULD BE APPLIED.  FOR ALL THAT WE KNOW THE ONLY
PENALTY TO WHICH PETITIONERS MAY BE SUBJECTED FOR VIOLATION OF SEC. 7
IS A SINGLE PENALTY FOR FAILURE TO FILE THE REQUIRED STATEMENT OR
REPORT, AND THEIR CONTINUED FUNCTIONING IN THE STATE WOULD SUBJECT THEM
TO NO FURTHER PENALTY OR RESTRAINT.  AND ASSUMING THAT THE PENALTIES OR
THREAT OF PENALTIES OF THE STATUTE MAY BE SO APPLIED AS TO OPERATE AS A
PRESENT RESTRAINT MORE THAN DOES THE BARE EXISTENCE OF THE CIVIL AND
CRIMINAL PENALTIES FOR LIBEL, IT NOWHERE APPEARS THAT THE STATUTORY
PENALTIES ARE BEING SO THREATENED OR APPLIED.    IT IS NOT CONTENDED
THAT THE STATUTE IN ANY WAY RESTRICTS THE FREEDOM OF ASSEMBLY AND
SPEECH OF LABOR ORGANIZATIONS AFTER THEY COMPLY WITH THE FILING
REQUIREMENTS OF THE STATUTE, AND IT NOWHERE APPEARS THAT ANY OF THE
PETITIONERS ARE SO SITUATED THAT THEY COULD NOT COMPLY WITH THE STATUTE
WITHIN THE PERIOD ALLOWED BY IT FOR COMPLIANCE, WITHOUT INCURRING ANY
PENALTY FOR NONCOMPLIANCE.  THE ATTACK THUS MADE ON SEC. 7 IS AS TO THE
CONSTITUTIONALITY OF THE SECTION ON ITS FACE, WITHOUT REFERENCE TO ITS
APPLICATION TO ANY PARTICULAR DEFINED SET OF FACTS, OTHER THAN THOSE
GENERALLY CATALOGUED IN THE SECTION ITSELF.  WE CANNOT SAY THAT SECS. 7
AND 18 COULD NOT BE SO CONSTRUED AND APPLIED AS NOT TO RESTRAIN
PETITIONERS' FUNCTIONING IN THE STATE IN THE EXERCISE OF THEIR
CONSTITUTIONAL RIGHT OF FREE SPEECH AND ASSEMBLY.  WE ARE THUS INVITED
TO PASS UPON THE CONSTITUTIONAL VALIDITY OF A STATE STATUTE WHICH HAS
NOT YET BEEN APPLIED OR THREATENED TO BE APPLIED BY THE STATE COURTS TO
PETITIONERS OR OTHERS IN THE MANNER ANTICIPATED.  LACKING ANY
AUTHORITATIVE CONSTRUCTION OF THE STATUTE BY THE STATE COURTS, WITHOUT
WHICH NO CONSTITUTIONAL QUESTION ARISES, AND LACKING THE AUTHORITY TO
GIVE SUCH A CONTROLLING CONSTRUCTION OURSELVES, AND WITH A RECORD WHICH
PRESENTS NO CONCRETE SET OF FACTS TO WHICH THE STATUTE IS TO BE
APPLIED, THE CASE IS PLAINLY NOT ONE TO BE DISPOSED OF BY THE
DECLARATORY JUDGMENT PROCEDURE. 

THE REQUIREMENTS FOR A JUSTICIABLE CASE OR CONTROVERSY ARE NO LESS
STRICT IN A DECLARATORY JUDGMENT PROCEEDING THAN IN ANY OTHER TYPE OF
SUIT.  NASHVILLE, C. & ST. L.R. CO. V. WALLACE, 288 U.S. 249; AETNA
LIFE INS. CO. V. HAWORTH, 300 U.S. 227; MARYLAND CASUALTY CO. V.
PACIFIC CO., 312 U.S. 270, 273; GREAT LAKES CO. V. HUFFMAN, 319 U.S.
293, 299, 300; COFFMAN V. BREEZE CORPS., 323 U.S. 316.  THIS COURT IS
WITHOUT POWER TO GIVE ADVISORY OPINIONS.  HAYBURN'S CASE, 2 DALL.  409;
UNITED STATES V. EVANS, 213 U.S. 297, 301; MUSKRAT V. UNITED STATES,
219 U.S. 346; STEARNS V. WOOD, 236 U.S. 75; COFFMAN V. BREEZE CORPS.,
SUPRA.  IT HAS LONG BEEN ITS CONSIDERED PRACTICE NOT TO DECIDE
ABSTRACT, HYPOTHETICAL OR CONTINGENT QUESTIONS, GILES V. HARRIS, 189
U.S. 475, 486; DISTRICT OF COLUMBIA V. BROOKE, 214 U.S. 138, 152;
ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337, 355; ELECTRIC BOND CO. V.
SECURITIES & EXCHANGE COMMISSION, 303 U.S. 419; UNITED STATES V.
APPALACHIAN POWER CO., 311 U.S. 377, 423, OR TO DECIDE ANY
CONSTITUTIONAL QUESTION IN ADVANCE OF THE NECESSITY FOR ITS DECISION,
CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11 PET. 420, 553; TRADE-MARK
CASES, 100 U.S. 82, 96; LIVERPOOL, N.Y. & P.S.S. CO. V. EMIGRATION
COMM'RS, 113 U.S. 33, 39; BURTON V. UNITED STATES, 196 U.S. 283, 295;
ARKANSAS OIL CO. V. LOUISIANA, 304 U.S. 197, 202, OR TO FORMULATE A
RULE OF CONSTITUTIONAL LAW BROADER THAN IS REQUIRED BY THE PRECISE
FACTS TO WHICH IT IS TO BE APPLIED, LIVERPOOL, N.Y. & P.S.S. CO. V.
EMIGRATION COMM'RS, SUPRA, 39; WHITE V. JOHNSON, 282 U.S. 367, 371;
ALLEN-BRADLEY LOCAL V. BOARD, 315 U.S. 740, 746-7, OR TO DECIDE ANY
CONSTITUTIONAL QUESTION EXCEPT WITH REFERENCE TO THE PARTICULAR FACTS
TO WHICH IT IS TO BE APPLIED, HALL V. GEIGER-JONES CO., 242 U.S. 539,
554; CORPORATION COMM'N V. LOWE, 281 U.S. 431, 438; CONTINENTAL BAKING
CO. V. WOODRING, 286 U.S. 352, 372; ATLANTIC & PACIFIC TEA CO. V.
GROSJEAN, 301 U.S. 412, 429-30. 

A LAW WHICH IS CONSTITUTIONAL AS APPLIED IN ONE MANNER MAY, IT IS
TRUE, VIOLATE THE CONSTITUTION WHEN APPLIED IN ANOTHER.  FIELD V.
CLARK, 143 U.S. 649, 694-7; DAHNKE-WALKER CO. V. BONDURANT, 257 U.S.
282, 289; CONCORDIA INS. CO. V. ILLINOIS, 292 U.S. 535; ASSOCIATED
PRESS V. LABOR BOARD, 301 U.S. 103.  BUT "SINCE ALL CONTINGENCIES OF
ATTEMPTED ENFORCEMENT CANNOT BE ENVISIONED IN ADVANCE OF THOSE
APPLICATIONS" THIS COURT HAS FELT BOUND TO DELAY PASSING ON "THE
CONSTITUTIONALITY OF ALL THE SEPARATE PHASES OF A COMPREHENSIVE STATUTE
UNTIL FACED WITH CASES INVOLVING PARTICULAR PROVISIONS AS SPECIFICALLY
APPLIED TO PERSONS WHO CLAIM TO BE INJURED."  WATSON V. BUCK, 313 U.S.
387, 402.  ALL THESE CONSIDERATIONS FORBID OUR DECIDING HERE THE
CONSTITUTIONALITY OF A STATE STATUTE OF DOUBTFUL CONSTRUCTION IN
ADVANCE OF ITS APPLICATION AND CONSTRUCTION BY THE STATE COURTS AND
WITHOUT REFERENCE TO SOME PRECISE SET OF FACTS TO WHICH IT IS TO BE
APPLIED.  THE DECLARATORY JUDGMENT PROCEDURE MAY BE RESORTED TO ONLY IN
THE SOUND DISCRETION OF THE COURT AND WHERE THE INTERESTS OF JUSTICE
WILL BE ADVANCED AND AN ADEQUATE AND EFFECTIVE JUDGMENT MAY BE
RENDERED.  GREAT LAKES CO. V. HUFFMAN, SUPRA; COFFMAN V. BREEZE CORPS.,
SUPRA. 

LIKE OBJECTIONS ARE MADE AND LIKE QUESTIONS RAISED WITH RESPECT TO
SEC. 16 WHICH MAKES IT UNLAWFUL FOR ANY "EXECUTIVE, ADMINISTRATIVE,
PROFESSIONAL, OR SUPERVISORY EMPLOYEE TO BE A MEMBER IN, OR TO BE
ACCEPTED FOR MEMBERSHIP BY, ANY LABOR ORGANIZATION" WHICH ADMITS TO
MEMBERSHIP EMPLOYEES OTHER THAN PERSONS OF THESE CLASSES.  THE SECTION
DOES NOT DEFINE EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL OR SUPERVISORY
EMPLOYEES.  NO PROCEEDING APPEARS TO HAVE BEEN BROUGHT IN ANY STATE
COURT FOR ENFORCEMENT OF THE SECTION, AND WE ARE WITHOUT THE AID OF ANY
AUTHORITATIVE CONSTRUCTION OF ITS PROVISIONS.  THE RECORD DISCLOSES
ONLY GENERAL ALLEGATIONS IN THE WORDS OF THE STATUTE THAT PETITIONERS
ADMIT TO THEIR MEMBERSHIP BOTH EMPLOYEES WHO ARE AND EMPLOYEES WHO ARE
NOT OF THOSE CLASSES.  THE RECORD GIVES NO INFORMATION AS TO THE DUTIES
OF SUCH SUPERVISORY EMPLOYEES OTHER THAN PETITIONER JONES.  AS TO THEM
THE COURT IS THUS ASKED TO RULE UPON THE CONSTITUTIONALITY OF A STATE
STATUTE WHICH PETITIONERS CHALLENGE AS TOO VAGUE AND INDEFINITE TO
SATISFY CONSTITUTIONAL REQUIREMENTS, WHICH DOES NOT APPEAR TO HAVE BEEN
APPLIED OR CONSTRUED BY THE STATE COURT, UPON A RECORD WHICH AFFORDS AN
INADEQUATE FACTUAL BASIS FOR DETERMINING WHETHER THE STATUTE IS
APPLICABLE TO ANY OF THEM, OR IF SO WHETHER AS APPLIED TO THEM THE
STATUTE WOULD VIOLATE FREEDOM OF SPEECH AND ASSEMBLY. 

A FURTHER AND CONCLUSIVE GROUND FOR OUR DECLINING TO PASS ON THE
VALIDITY OF SEC. 16 IS THE RULING OF THE STATE SUPREME COURT THAT THAT
VOID ANY INSURANCE CONTRACT NOW IN EXISTENCE AND IN FORCE."  THE RECORD
WITHOUT DISCLOSING THE DETAILS SHOWS THAT PETITIONERS PROVIDE INSURANCE
BENEFITS FOR THEIR MEMBERS AS SUCH, AND THAT PETITIONER JONES IS A
MEMBER OF PETITIONER UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AND AS A MEMBER IS ENTITLED TO SUCH BENEFITS.  WHETHER AND TO
WHAT EXTENT SEC. 16 CAN BE DEEMED APPLICABLE TO THE MEMBERS OF ANY OF
THE OTHER PETITIONERS BECAUSE OF EXISTING INSURANCE ARRANGEMENTS DOES
NOT APPEAR.  ONLY THOSE TO WHOM A STATUTE APPLIES AND WHO ARE ADVERSELY
AFFECTED BY IT CAN DRAW IN QUESTION ITS CONSTITUTIONAL VALIDITY IN A
DECLARATORY JUDGMENT PROCEEDING AS IN ANY OTHER.  MARYE V. PARSONS, 114
U.S. 325; TYLER V. THE JUDGES, 179 U.S. 405; TURPIN V. LEMON, 187 U.S.
51, 60, 61; ARIZONA V. CALIFORNIA, 283 U.S. 423, 463, 464; FIRST
NATIONAL BANK V. TAX COMM'N, 289 U.S. 60, 65; ASHWANDER V. TENNESSEE
VALLEY AUTHORITY, 297 U.S. 288; ANDERSON NAT. BANK V. LUCKETT, 321 U.S.
233, 242. 

          CONFLICT OF SECTIONS 7 AND 16 WITH THE NATIONAL LABOR

                      RELATIONS ACT. 

PETITIONERS ALSO URGE THAT SEC. 7 AND SEC. 16 CONFLICT WITH THE
NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 29 U.S.C. SEC. 151 ET SEQ.,
IN THAT ALABAMA IS LIKELY TO ASSERT THE POWER TO ENFORCE THOSE SECTIONS
BY DEPRIVING PETITIONERS OF THEIR RIGHT TO FUNCTION IN THE STATE AS
COLLECTIVE BARGAINING REPRESENTATIVES UNDER THE NATIONAL LABOR
RELATIONS ACT.  THEY POINT OUT THAT THE NATIONAL ACT, SEC. 8(5),
UNCONDITIONALLY REQUIRES AN EMPLOYER TO BARGAIN WITH THE
REPRESENTATIVES OF HIS EMPLOYEES.  THEY CONTEND THAT SEC. 7 THUS
CONFLICTS WITH THE NATIONAL ACT AND THAT THE ENFORCEMENT OF THE FORMER
TENDS TO HINDER AND INTERFERE WITH THE PERFORMANCE OF PETITIONERS'
FUNCTIONS UNDER THE NATIONAL ACT. 

PETITIONERS ALSO URGE THAT SEC. 16 CONFLICTS WITH THE NATIONAL LABOR
RELATIONS ACT IN THAT UNDER ITS PROVISIONS, AS CONSTRUED AND
ADMINISTERED BY THE NATIONAL LABOR RELATIONS BOARD, EMPLOYEES IN
CERTAIN INDUSTRIES, WHO EXERCISE SUPERVISORY FUNCTIONS, MAY JOIN AND BE
REPRESENTED BY UNIONS WHICH ALSO ADMIT TO THEIR MEMBERSHIP NON
SUPERVISORY EMPLOYEES.  PETITIONERS SAY THAT ANY LABOR ORGANIZATION
WHICH HAS FAILED TO FILE THE REPORT AS REQUIRED BY SEC. 7, OR WHICH
ADMITS TO ITS UNION A SUPERVISORY EMPLOYEE CONTRARY TO SEC. 16, WILL BE
PRECLUDED FROM ACTING AS A BARGAINING AGENT UNDER THE NATIONAL LABOR
RELATIONS ACT. 

ASSUMING AS WE DO FOR PRESENT PURPOSES THAT THESE CONTENTIONS ARE
SOUND, IT DOES NOT FOLLOW THAT THERE IS NO CONSTITUTIONAL SCOPE FOR
APPLICATION OF SECS. 7 AND 16.  THE NATIONAL LABOR RELATIONS ACT DOES
NOT EXTEND TO ALL INDUSTRIES AND ALL EMPLOYEES.  IT IS ONLY APPLICABLE
TO THOSE EMPLOYMENTS IN WHICH STRIKES AND LABOR DISPUTES WOULD AFFECT
INTERSTATE COMMERCE AND ARE FOUND TO BE SUCH BY THE NATIONAL LABOR
RELATIONS BOARD.  LABOR BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1, 38
40; LABOR BOARD V. FAINBLATT, 306 U.S. 601, 604; POLISH ALLIANCE V.
LABOR BOARD, 322 U.S. 643, 647. 

THE RECORD CONTAINS EVIDENCE OF ONLY THE MOST GENERAL CHARACTER THAT
THERE ARE INDUSTRIES LOCATED WITHIN THE STATE WHOSE EMPLOYEES ARE
"WITHIN THE JURISDICTION OF THE ALABAMA STATE FEDERATION OF LABOR AND
LOCAL NO. 103, OR OF THE OTHER A.F. OF L. UNIONS WITHIN THE CLASS FOR
WHICH THE COMPLAINT HAS BEEN FILED, WHICH ARE ENGAGED  ...  IN
INTERSTATE COMMERCE."  THERE IS EVIDENCE GENERALLY AS TO THE PRACTICE
OF THE NATIONAL LABOR RELATIONS BOARD IN CERTIFYING UNIONS AS
BARGAINING REPRESENTATIVES.  BUT IT NOWHERE AFFIRMATIVELY APPEARS THAT
ANY OF PETITIONERS ACT AS BARGAINING REPRESENTATIVES OF EMPLOYEES IN
INDUSTRIES WITHIN THE STATE WHICH ARE SUBJECT TO THE NATIONAL LABOR
RELATIONS ACT. 

WHAT IS MORE IMPORTANT FOR PRESENT PURPOSES IS THAT IT DOES NOT
APPEAR THAT THERE ARE ANY OF PETITIONERS WHICH DO NOT REPRESENT
EMPLOYEES IN INDUSTRIES WHICH ARE NOT SUBJECT TO THE NATIONAL LABOR
RELATIONS ACT.  TO DECIDE THE QUESTION OF THE ALLEGED CONFLICT OF SECS.
7 AND 16 WITH THE NATIONAL LABOR RELATIONS ACT AND THE EFFECT OF IT, IT
WOULD BE NECESSARY TO KNOW WHETHER PETITIONERS OR SOME OF THEM
REPRESENT EMPLOYEES IN INDUSTRIES NOT SUBJECT TO THE NATIONAL LABOR
RELATIONS ACT, AND THE EXTENT TO WHICH FOR THAT REASON THEY MAY BE
RIGHTLY SUBJECT TO LOCAL REGULATION EVEN THOUGH THEY ALSO REPRESENT
EMPLOYEES IN OTHER INDUSTRIES WHICH ARE SUBJECT TO THE NATIONAL ACT. 
THE RECORD IS SILENT AS TO WHICH OF PETITIONERS REPRESENT THE ONE, OR
THE OTHER, OR BOTH.  HENCE WE HAVE NO STATE OF FACTS BEFORE US WHICH
WOULD ENABLE US TO DETERMINE THE EXTENT TO WHICH THE SEVERAL
PETITIONERS MAY BE SUBJECT TO LOCAL REGULATION WHICH DOES NOT CONFLICT
WITH THE NATIONAL ACT, AND THUS WE ARE UNABLE TO SAY TO WHAT EXTENT THE
CHALLENGED SECTIONS ARE VALID OR INVALID UNDER THE NATIONAL ACT. 

WHEN A STATUTE IS ASSAILED AS UNCONSTITUTIONAL WE ARE BOUND TO ASSUME
THE EXISTENCE OF ANY STATE OF FACTS WHICH WOULD SUSTAIN THE STATUTE IN
WHOLE OR IN PART.  METROPOLITAN CASUALTY INS. CO. V. BROWNELL, 294 U.S.
580, 584 AND CASES CITED; UNITED STATES V. CAROLENE PRODUCTS CO., 304
U.S. 144, 152, 153.  SINCE PETITIONERS OR SOME OF THEM ARE NOT SHOWN TO
FUNCTION EXCLUSIVELY AS BARGAINING REPRESENTATIVES FOR EMPLOYEES IN
INDUSTRIES SUBJECT TO THE NATIONAL LABOR RELATIONS ACT, WE CANNOT SAY
THAT SECS. 7 AND 16 COULD IN NO CIRCUMSTANCES BE VALIDLY APPLIED TO
THEM.  THE EXTENT TO WHICH IN FACT THE SECTIONS ARE OR MAY BE SO
APPLIED, AND IN WHAT CIRCUMSTANCES, DOES NOT APPEAR.  IN THIS STATE OF
THE RECORD WE ARE NOT CALLED UPON TO SAY WHETHER OR TO WHAT EXTENT THEY
MAY BE CONSTITUTIONALLY APPLIED. 

MOREOVER, FOR REASONS ALREADY STATED IN OUR DISCUSSION OF THE ALLEGED
INFRINGEMENT OF FREEDOM OF SPEECH AND ASSEMBLY, WE CANNOT ASSUME THAT
THE FAILURE TO FILE REPORTS WILL RESULT IN THE EXCLUSION OF
PETITIONERS, OR ANY OF THEM, FROM FUNCTIONING IN THE STATE, OR VISIT
ANY CONSEQUENCES UPON THEM OTHER THAN THE PENALTY FOR FAILURE TO FILE. 
WE THEREFORE HAVE NO QUESTION BEFORE US OF A STATUTE WHICH HAS BEEN
CONSTRUED TO OPERATE EITHER BY ITS PENAL SANCTIONS OR BY THE AID OF
INJUNCTION TO PREVENT PETITIONERS, OR ANY OF THEM, FROM FUNCTIONING
WITHIN THE STATE FOR NONCOMPLIANCE WITH SEC. 7.  COMPARE HILL V.
FLORIDA, POST, P. 538.  NOR CAN WE SAY IN THE ABSENCE OF ANY SHOWING TO
THE CONTRARY THAT THE FILING OF INFORMATION RETURNS WILL IMPOSE SUCH
BURDENS ON ANY OF PETITIONERS AS TO INTERFERE WITH THE PERFORMANCE OF
THEIR FUNCTIONS UNDER THE NATIONAL LABOR RELATIONS ACT IN CASES WHERE
THAT ACT IS APPLICABLE. 

AND FINALLY, AS WE HAVE POINTED OUT, A FURTHER GROUND FOR OUR NOT
CONSIDERING THE VALIDITY OF SEC. 16 AND WHETHER IT CONFLICTS WITH THE
NATIONAL LABOR RELATIONS ACT IS THE RULING OF THE STATE SUPREME COURT
THAT THAT SECTION IS INAPPLICABLE WHEREVER IT WOULD OTHERWISE INTERFERE
WITH OR RENDER INEFFECTIVE ANY EXISTING CONTRACT OF INSURANCE.  IN VIEW
OF THIS HOLDING, IT IS INCUMBENT ON PETITIONERS TO SHOW, AS THEY HAVE
FAILED TO DO, TO WHAT EXTENT SEC. 16 CAN BE TAKEN TO BE APPLICABLE TO
ANY OF THEM BECAUSE OF EXISTING INSURANCE ARRANGEMENTS WITH UNION
MEMBERS. 

WE CAN BE ASKED TO CONDEMN A STATE STATUTE AS IN CONFLICT WITH
NATIONAL LEGISLATION ONLY IF THE CONFLICT IS CLEARLY SHOWN, ALLEN
BRADLEY LOCAL V. BOARD, SUPRA, 749; TOWNSEND V. YEOMANS, 301 U.S. 441,
454, AND CASES CITED, AND ONLY BY THOSE WHO SHOW THAT THEY ARE
ADVERSELY AFFECTED BY THE ALLEGED CONFLICT WITH NATIONAL POWER.  EACH
OF THE CONTENTIONS WHICH PETITIONERS MAKE WITH RESPECT TO THE CONFLICT
OF SECS. 7 AND 16 WITH THE NATIONAL LABOR RELATIONS ACT COULD READILY
BE ADJUDICATED AND DISPOSED OF IN AN ADVERSARY SUIT DRAWING IN QUESTION
THEIR VALIDITY AS APPLIED TO SPECIFIC STATES OF FACT, IN WHICH
RESPONDENTS COULD BOTH CHALLENGE THE FACTS AND THE APPLICABILITY TO
THEM OF THE STATUTE.  IN THE PRESENT SUIT WE FIND THAT BOTH THE
UNCERTAINTY AS TO THE CONSTRUCTION OF THE SECTIONS AND THE UNCERTAINTY
AS TO THE FACTS TO WHICH THEY ARE TO BE APPLIED PRECLUDE THE
ADJUDICATION WHICH THE PETITIONERS SEEK. 

        THE VALIDITY OF SEC. 15 UNDER THE DUE PROCESS CLAUSE. 

ORGANIZER, ANY OFFICER, AGENT, REPRESENTATIVE OR MEMBER OF ANY LABOR
ORGANIZATION, OR ANY OTHER PERSON, TO COLLECT, RECEIVE OR DEMAND,  ...
FROM ANY PERSON, ANY FEE, ASSESSMENT, OR SUM OF MONEY WHATSOEVER, AS A
WORK PERMIT OR AS A CONDITION FOR THE PRIVILEGE OF WORK."  BUT IT
EXCLUDES FROM THE OPERATION OF THE ACT THE COLLECTION OF "INITIATION
FEES OR DUES."  PETITIONERS ASSERT THAT THE SECTION APPLYING AS IT DOES
TO EVERY FORM OF COLLECTION OF MONEY, OTHER THAN INITIATION FEES OR
DUES, "AS A WORK PERMIT OR AS A CONDITION FOR THE PRIVILEGE OF WORK,"
PREVENTS NUMEROUS LEGITIMATE AND DESIRABLE LABOR UNION PRACTICES AND
HENCE IS SO HARSH, ARBITRARY AND UNREASONABLE IN ITS APPLICATION AS TO
INFRINGE DUE PROCESS.  A NUMBER OF EXAMPLES ARE GIVEN, SUCH AS UNION
FEES CHARGED TO NON-UNION APPRENTICES IN RETURN FOR THEIR "GUIDANCE AND
TEACHING" BY UNION MEMBERS, FEES CHARGED TO NON-UNION MEMBERS FOR
PARTICIPATION IN THE BENEFITS OF EXISTING ALL-UNION COLLECTIVE
BARGAINING CONTRACTS, FEES CHARGED FOR THE TRANSFER FROM ONE UNION TO
ANOTHER PENDING ADMISSION TO UNION MEMBERSHIP IN THE LATTER, AND THE
LIKE. 

ALTHOUGH IT APPEARS THAT THE CONSTITUTIONS OF PETITIONERS, OR SOME OF
THEM, CONTAIN A PROVISION PERMITTING THEM TO CHARGE A FEE TO UNION
MEMBERS WORKING IN A UNION "JURISDICTION" OUTSIDE THAT IN WHICH THEY
LIVE, IT NOWHERE APPEARS THAT SUCH FEES OR ANY OF THE OTHERS SPECIFIED
BY PETITIONERS ARE BEING OR WILL BE CHARGED, OR THAT RESPONDENTS OR THE
COURTS HAVE DETERMINED THAT THEY ARE UNLAWFUL AS NOT BEING INITIATION
FEES OR DUES, OR THAT ANY FORM OF LEGAL PROCEEDING BASED ON SUCH A
CONTENTION IS CONTEMPLATED.  FOR THESE REASONS THE SUPREME COURT OF
ALABAMA DECLINED TO CONSIDER WHETHER SEC. 15 WAS APPLICABLE TO
PETITIONERS, SAYING, "WHETHER OR NOT CERTAIN PRACTICES TO WHICH COUNSEL
REFER ARE TO BE CONSTRUED AS COMING WITHIN THE PROVISIONS OF THE ACT
ARE QUESTIONS WHICH WILL ARISE WHEN THE PROPER CASE IS PRESENTED." 

TO SAY THAT THE STATUTE WOULD BE UNCONSTITUTIONAL IF APPLIED TO SUCH
EXACTIONS IS NOT TO SAY THAT THE SECTION CANNOT CONSTITUTIONALLY APPLY
TO EXACTIONS WHICH THE LEGISLATURE COULD HAVE THOUGHT COERCIVE,
OPPRESSIVE OR OTHERWISE UNJUST.  IT IS NOT DENIED THAT LABOR
ORGANIZATIONS HAVE INDULGED IN SUCH PRACTICES, AND OBVIOUSLY WE CANNOT
ASSUME IN THE FACE OF THE CONSTITUTIONAL OBJECTIONS THAT THEY DO NOT,
OR THAT THE STATE COULD NOT MAKE SEC. 15 APPLICABLE TO THEM.  AS THE
RECORD PRESENTS NO CONCRETE CASE TO WHICH PETITIONERS' CONTENTIONS AS
TO SEC. 15 APPLY, WE ARE UNABLE TO SAY WHETHER ITS APPLICATION IN ANY
GIVEN CASE NOT NOW BEFORE US WOULD OR WOULD NOT BE CONSTITUTIONAL. 
LIVERPOOL, N.Y. & P.S.S. CO. V. EMIGRATION COMM'RS, SUPRA, 39; BARKER
CO. V. PAINTERS UNION, 281 U.S. 462, 463, 464.  DETERMINATION OF THESE
QUESTIONS AS WELL AS THE PROPER CONSTRUCTION OF THE SECTION WHICH IS
CHALLENGED AS VAGUE AND INDEFINITE MUST AWAIT ITS APPLICATION TO SOME
SPECIFIC STATE OF FACTS. 

                          OTHER CONTENTIONS. 

ONLY A WORD NEED BE SAID AS TO VARIOUS OTHER OBJECTIONS NOT ALREADY
DISPOSED OF, WHICH HAVE BEEN RAISED BUT NOT SERIOUSLY PRESSED.  IT IS
SAID THAT THE REQUIREMENT OF SEC. 7 TO FILE INFORMATION STATEMENTS AND
REPORTS IS SO BURDENSOME ON LABOR ORGANIZATIONS AS TO DENY DUE PROCESS
OF LAW.  IT IS NOT DENIED BUT IS AFFIRMED THAT LABOR ORGANIZATIONS ARE
SUBJECT TO REGULATION, ALLEN-BRADLEY LOCAL V. BOARD, SUPRA, AND THAT IN
THE INTERESTS OF REGULATION THE GOVERNMENT MAY REQUIRE INFORMATION FROM
THOSE SUBJECT TO IT.  THOMAS V. COLLINS, 323 U.S. 516, 532; CF.
NORTHWESTERN BELL TEL. CO. V. NEBRASKA COMM'N, 297 U.S. 471, 478;
NATURAL GAS CO. V. SLATTERY, 302 U.S. 300, 306 AND CASES CITED.  IT IS
SAID THAT IN ORDER TO COMPLY WITH THE STATUTE IT WOULD BE NECESSARY FOR
EACH UNION, REGARDLESS OF ITS SIZE AND FINANCES, TO HIRE PUBLIC
ACCOUNTANTS OR OTHERS WITH SPECIALIZED KNOWLEDGE OF ACCOUNTING
PRACTICES AND PROCEDURE, SUCH AS WORKING MEN DO NOT HAVE, AND THAT SUCH
A REQUIREMENT IS BEYOND CONSTITUTIONAL POWER.  BUT THESE ASSERTIONS ARE
UNSUPPORTED BY THE RECORD.  IT DOES NOT SHOW TO WHAT EXTENT THE
TRANSACTIONS OF PETITIONERS, OR ANY OF THEM, ARE COMPLICATED OR
DETAILED OR OTHER FACTS WHICH WOULD ENABLE US TO SAY THAT PETITIONERS
ARE UNABLE TO COMPLY WITH THE STATUTE WITHOUT EXPERT ASSISTANCE.  SINCE
PETITIONERS' RELIANCE IS UPON THE BURDENSOME OPERATION OF THE STATUTE
ON THEM, WE ARE NOT BOUND TO SPECULATE UPON THE NATURE OR EXTENT OF THE
BURDEN.  WE CAN HARDLY MAKE PRONOUNCEMENT ON THEIR CONTENTIONS IN A
DECLARATORY JUDGMENT PROCEEDING WHERE THE RECORD DOES NOT DISCLOSE THE
EXTENT OF THE BURDEN, IF ANY.  WHETHER THE INFORMATION DEMANDED IS SO
EXTENSIVE, DETAILED, AND THEREFORE BURDENSOME, AS TO PASS THE BOUNDS OF
WHAT THE STATE MAY REASONABLY REQUIRE CAN BE DETERMINED ONLY IN THE
LIGHT OF THE CIRCUMSTANCES IN WHICH THE STATUTE IS TO BE APPLIED. 

THE OBJECTION THAT SECS. 7 AND 16 OF THE STATE STATUTE ARE TOO VAGUE
AND UNCERTAIN TO MEET CONSTITUTIONAL REQUIREMENTS IS ONE WHICH CANNOT
APPROPRIATELY BE CONSIDERED IN A DECLARATORY JUDGMENT PROCEEDING IN THE
FEDERAL COURTS, IN ADVANCE OF THEIR AUTHORITATIVE CONSTRUCTION BY A
STATE COURT.  AS WE HAVE SAID, IT IS THE DUTY OF THE FEDERAL COURTS TO
AVOID THE UNNECESSARY DECISION OF CONSTITUTIONAL QUESTIONS.  SILER V.
LOUISVILLE & NASHVILLE R. CO., 213 U.S. 175, 191; LIGHT V. UNITED
STATES, 220 U.S. 523, 538; BLAIR V. UNITED STATES, 250 U.S. 273, 279;
CROWELL V. BENSON, 285 U.S. 22, 62, AND CASES CITED.  BUT THE USE OF
THE DECLARATORY JUDGMENT PROCEDURE TO TEST THE VALIDITY OF A STATE
STATUTE FOR VAGUENESS AND UNCERTAINTY INVITES RATHER THAN AVOIDS THE
UNNECESSARY DECISION OF THE CONSTITUTIONAL QUESTION. 

MOST COURTS CONCEIVE IT TO BE THEIR DUTY TO CONSTRUE A STATUTE,
WHENEVER REASONABLY POSSIBLE, SO THAT IT MAY BE CONSTITUTIONAL RATHER
THAN UNCONSTITUTIONAL.  STEPHENSON V. BINFORD, 287 U.S. 251; MOORE ICE
CREAM CO. V. ROSE, 289 U.S. 373, 379; SCREWS V. UNITED STATES, ANTE, P.
91, AND CASES CITED; CF. SPECTOR MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101;
EX PARTE ENDO, 323 U.S. 283.  AND THE ALABAMA COURTS ADHERE TO THAT
RULE.  MOBILE V. BOARD, 180 ALA. 489, 501, 61 SO. 368; CF. DUNCAN V.
RUDULPH, 245 ALA. 175, 176, 16 SO.2D 313; GOODMAN V. CARROLL, 205 ALA.
305, 87 SO. 368; CLOVERDALE HOMES V. TOWN OF CLOVERDALE, 182 ALA. 419,
62 SO. 712.  STATE COURTS, WHEN GIVEN THE OPPORTUNITY BY THE
PRESENTATION TO THEM FOR DECISION OF AN ACTUAL CASE OR CONTROVERSY,
MAY, AND OFTEN DO, CONSTRUE STATE STATUTES SO THAT IN THEIR APPLICATION
THEY ARE NOT OPEN TO CONSTITUTIONAL OBJECTIONS WHICH MIGHT OTHERWISE BE
ADDRESSED TO THEM.  COX V. NEW HAMPSHIRE, 312 U.S. 569, 575; COMPARE
SCHUYLKILL TRUST CO. V. PENNSYLVANIA, 302 U.S. 506 WITH SCHUYLKILL
TRUST CO. V. PENNSYLVANIA, 296 U.S. 113.  IN ADVANCE OF AN
AUTHORITATIVE CONSTRUCTION OF A STATE STATUTE, WHICH THE STATE COURT
ALONE CAN MAKE, THIS COURT CANNOT KNOW WHETHER THE STATE COURT, WHEN
CALLED ON TO APPLY THE STATUTE TO A DEFINED CASE OR CONTROVERSY, MAY
NOT CONSTRUE THE STATUTE SO AS TO AVOID THE CONSTITUTIONAL QUESTION. 
FOR US TO DECIDE THE CONSTITUTIONAL QUESTION BY ANTICIPATING SUCH AN
AUTHORITATIVE CONSTRUCTION OF THE STATE STATUTE WOULD BE EITHER TO
DECIDE THE QUESTION UNNECESSARILY OR REST OUR DECISION ON THE UNSTABLE
FOUNDATION OF OUR OWN CONSTRUCTION OF THE STATE STATUTE WHICH THE STATE
COURT WOULD NOT BE BOUND TO FOLLOW.  SPECTOR MOTOR CO. V. MCLAUGHLIN,
SUPRA, 105; SEE ALSO VANDENBARK V. OWENS-ILLINOIS CO., 311 U.S. 538,
543; HUDDLESTON V. DWYER, 322 U.S. 232.  SUCH IS NOT THE FUNCTION OF
THE DECLARATORY JUDGMENT. 

THE EXTENT TO WHICH THE DECLARATORY JUDGMENT PROCEDURE MAY BE USED IN
THE FEDERAL COURTS TO CONTROL STATE ACTION LIES IN THE SOUND DISCRETION
OF THE COURT.  SEE GREAT LAKES CO. V. HUFFMAN, SUPRA.  IT WOULD BE AN
ABUSE OF DISCRETION FOR THIS COURT TO MAKE A PRONOUNCEMENT ON THE
CONSTITUTIONALITY OF A STATE STATUTE BEFORE IT PLAINLY APPEARED THAT
THE NECESSITY FOR IT HAD ARISEN, OR WHEN THE COURT IS LEFT IN
UNCERTAINTY, WHICH IT CANNOT AUTHORITATIVELY RESOLVE, AS TO THE MEANING
OF THE STATUTE WHEN APPLIED TO ANY PARTICULAR STATE OF FACTS.  IN ANY
EVENT THE PARTIES ARE FREE TO LITIGATE IN THE STATE COURTS THE VALIDITY
OF THE STATUTE WHEN ACTUALLY APPLIED TO ANY DEFINITE STATE OF FACTS,
WITH THE RIGHT OF APPELLATE REVIEW IN THIS COURT.  IN THE EXERCISE OF
THIS COURT'S DISCRETIONARY POWER TO GRANT OR WITHHOLD THE DECLARATORY
JUDGMENT REMEDY IT IS OF CONTROLLING SIGNIFICANCE THAT IT IS IN THE
PUBLIC INTEREST TO AVOID THE NEEDLESS DETERMINATION OF CONSTITUTIONAL
QUESTIONS AND THE NEEDLESS OBSTRUCTION TO THE DOMESTIC POLICY OF THE
STATES BY FORESTALLING STATE ACTION IN CONSTRUING AND APPLYING ITS OWN
STATUTES.  SEE GREAT LAKES CO. V. HUFFMAN, SUPRA, 300, ET SEQ. 

THE CONTENTION THAT THE ACT DENIES EQUAL PROTECTION BECAUSE ITS
PROVISIONS, OR SOME OF THEM, HAVE NOT BEEN EXTENDED TO BUSINESS
CORPORATIONS OR ASSOCIATIONS OR TO LABOR ORGANIZATIONS WHICH ARE
SUBJECT TO THE RAILWAY LABOR ACT, 45 U.S.C. SEC. 151 ET SEQ., IS
WITHOUT SUBSTANCE.  THE CONSTITUTION DOES NOT OBLIGE A STATE TO
REGULATE OR REFORM ALL TYPES OF ASSOCIATIONS AND ORGANIZATIONS, OR
NONE.  IT MAY BEGIN WITH SUCH AS IN ITS JUDGMENT MOST NEED REGULATION. 
CARROLL V. GREENWICH INSURANCE CO., 199 U.S. 401, 411; KEOKEE COKE CO.
V. TAYLOR, 234 U.S. 224, 227; BUNTING V. OREGON, 243 U.S. 426; SPROLES
V. BINFORD, 286 U.S. 374, 396; CF. WEST COAST HOTEL CO. V. PARRISH, 300
U.S. 379, 400, AND CASES CITED.  AND FOR THIS REASON IT MAY EXCLUDE
FROM REGULATORY MEASURES ORGANIZATIONS WHICH IT HAS REASON TO BELIEVE
ARE ALREADY APPROPRIATELY REGULATED BY EITHER STATE OR NATIONAL
LEGISLATION.  ZIFFRIN, INC. V. REEVES, 308 U.S. 132, 140; CF. UNION
BANK & TRUST CO. V. PHELPS, 288 U.S. 181, 186. 

WE WOULD NOT HAVE GRANTED CERTIORARI TO REVIEW SO UNSUBSTANTIAL A
QUESTION, AND ALL THE OTHER ISSUES, AS PRESENTED BY THE RECORD NOW
BEFORE US, ARE, FOR REASONS WHICH WE HAVE GIVEN, INAPPROPRIATE FOR
DECISION IN A DECLARATORY JUDGMENT PROCEEDING.  THE WRIT OF CERTIORARI
WILL THEREFORE DISMISSED. 

FN1  UNDER THE VIEW WE TAKE OF THE CASE IT IS UNNECESSARY TO
DETERMINE WHETHER PETITIONERS HAVE PROPERLY RAISED IN THE STATE COURTS
THE FEDERAL QUESTIONS WHICH THEY URGE HERE WITH RESPECT TO SECS. 15 AND
16. 
..END :





C.I.O. V. MCADORY, 325 U.S. 472 


NO. 855.  ARGUED APRIL 3, 4, 1945.  - DECIDED JUNE 11, 1945.  - WRIT
DISMISSED. 


1.  DECISION IN THIS CASE IS CONTROLLED BY THE PRINCIPLES GOVERNING
ALABAMA STATE FEDERATION OF LABOR V. MCADORY, ANTE, P. 450.  P. 477. 

2.  THIS COURT WILL NOT PASS UPON THE CONSTITUTIONALITY OF
LEGISLATION IN A SUIT WHICH IS NOT ADVERSARY, OR IN WHICH THERE IS NO
ACTUAL ANTAGONISTIC ASSERTION OF RIGHTS.  P. 475. 

3.  THE COURT CANNOT SAY THAT THE PRESENT PROCEEDING IS ADVERSARY AS
TO SEC. 7 OF THE BRADFORD ACT (ALABAMA LAWS OF 1943, NO. 298) IN VIEW
OF THE AGREEMENT BY RESPONDENTS TO REFRAIN FROM ENFORCING THAT SECTION
UNTIL ITS VALIDITY IS FINALLY DETERMINED BY THIS COURT, AND IN VIEW OF
THE DECISION IN THE ALABAMA STATE FEDERATION OF LABOR CASE.  P. 475. 

4.  IN THE ABSENCE OF AN AUTHORITATIVE CONSTRUCTION OF SEC. 16 BY THE
STATE COURTS, THIS COURT CANNOT SAY WHETHER THAT SECTION WILL BE
INTERPRETED SO AS TO INCLUDE WITHIN ITS SCOPE EMPLOYEES WHICH
PETITIONERS INTEND TO ADMIT TO MEMBERSHIP, AND THUS CANNOT PASS ON THE
CONSTITUTIONAL VALIDITY OF THE SECTION AS APPLIED TO THE FUTURE
ADMISSION OF MEMBERS.  P. 476. 

5.  THE CONTENTION IN THIS CASE THAT SEC. 16 OF THE BRADFORD ACT
CONFLICTS WITH THE NATIONAL LABOR RELATIONS ACT DOES NOT APPEAR TO HAVE
BEEN PROPERLY PRESENTED TO THE STATE COURTS, NOR TO HAVE BEEN PASSED
UPON BY THOSE COURTS, AND THIS COURT UPON REVIEW IS WITHOUT
JURISDICTION TO CONSIDER IT IN THE FIRST INSTANCE.  P. 477. 

CONGRESS OF INDUSTRIAL ORGANIZATIONS ET AL. V. MCADORY ET AL. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

CERTIORARI, 324 U.S. 832, TO REVIEW A JUDGMENT, 246 ALA. 198, 20
SO.2D 40, WHICH AFFIRMED A JUDGMENT SUSTAINING IN PART THE
CONSTITUTIONALITY OF A STATE STATUTE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS SUIT, BROUGHT IN THE STATE COURTS OF ALABAMA FOR A DECLARATORY
JUDGMENT ADJUDICATING THE CONSTITUTIONAL VALIDITY OF THE BRADFORD ACT,
NO. 298 ALABAMA LAWS OF 1943, (CODE 1943, TIT. 26, SECS. 376, ET SEQ.),
AND FOR AN INJUNCTION, IS A COMPANION CASE TO ALABAMA STATE FEDERATION
OF LABOR V. MCADORY, ANTE, P. 450. 

PETITIONERS ARE THE CONGRESS OF INDUSTRIAL ORGANIZATIONS, A NATIONAL
LABOR ORGANIZATION, AND CERTAIN AFFILIATED LABOR ORGANIZATIONS, WHOSE
MEMBERS ARE EMPLOYED WITHIN THE STATE, AND CERTAIN OF THEIR OFFICERS. 
PETITIONERS BROUGHT THE PRESENT SUIT IN THE STATE CIRCUIT COURT AGAINST
RESPONDENTS WHO ARE COUNTY OFFICERS CHARGED WITH THE DUTY OF ENFORCING
THE ACT, PRAYING A DECLARATORY JUDGMENT THAT THE ACT AS A WHOLE AND
PARTICULARLY SECS. 7 AND 16, AMONG OTHERS, ARE UNCONSTITUTIONAL UNDER
THE FEDERAL AND STATE CONSTITUTIONS, AND ARE INVALID BECAUSE IN
CONFLICT WITH THE NATIONAL LABOR RELATIONS ACT, AND PRAYING THAT AN
INJUNCTION ISSUE. 

AFTER A TRIAL UPON EVIDENCE THE CIRCUIT COURT ADJUDGED CERTAIN
PART.  IN OTHER RESPECTS IT HELD THE ACT CONSTITUTIONAL AND VALID.  IT
FOUND THAT THE EVIDENCE DISCLOSED NO EFFORT ON THE PART OF RESPONDENTS
TO ENFORCE THE PROVISIONS OF THE ACT DECLARED TO BE INVALID AND
ACCORDINGLY DENIED AN INJUNCTION.  ON APPEAL THE SUPREME COURT OF
ALABAMA AFFIRMED, 246 ALA. 198, 20 SO.2D 40, FOR THE REASONS STATED IN
ITS OPINION IN THE ALABAMA STATE FEDERATION OF LABOR CASE. 

WE GRANTED CERTIORARI, 324 U.S. 832, ON A PETITION WHICH URGED THAT
SECS. 7 AND 16 OF THE ACT DEPRIVE PETITIONERS OF THEIR CIVIL RIGHTS IN
VIOLATION OF THE CONSTITUTIONAL GUARANTEES OF FREE SPEECH AND ASSEMBLY;
THAT SECS. 7 AND 16 CONFLICT WITH THE NATIONAL LABOR RELATIONS ACT, 49
STAT. 449, 29 U.S.C. SEC. 151 ET SEQ.; AND THAT SEC. 7 DENIES
PETITIONERS THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOUR
TEENTH AMENDMENT ON THE GROUND THAT ITS PROVISIONS HAVE NOT BEEN
EXTENDED TO EMPLOYERS' ASSOCIATIONS, AND THAT THE ACT EXCLUDES FROM ITS
OPERATION LABOR ORGANIZATIONS WHICH ARE SUBJECT TO THE RAILWAY LABOR
ACT, 45 U.S.C. SEC. 151 ET SEQ. 

THE RECORD SHOWS THAT THE RESPONDENTS HAVE AGREED NOT TO ENFORCE SEC.
7 OF THE ACT UNTIL THE FINAL DECISION AS TO THE SECTION'S VALIDITY BY
THIS COURT IN ALABAMA STATE FEDERATION OF LABOR V. MCADORY, SUPRA.
SINCE WE HAVE HELD IN THAT CASE THAT IT IS INAPPROPRIATE TO PASS UPON
THE CONSTITUTIONAL VALIDITY OF SEC. 7 ON THE RECORD PRESENTED, WE
CANNOT SAY THAT THE PRESENT PROCEEDING IS ADVERSARY AS TO SEC. 7.  THE
COURT WILL NOT PASS UPON THE CONSTITUTIONALITY OF LEGISLATION IN A SUIT
WHICH IS NOT ADVERSARY, BARTEMEYER V. IOWA, 18 WALL.  129, 134-5;
CHICAGO & GRAND TRUNK R. CO. V. WELLMAN, 143 U.S. 339; ATHERTON MILLS
V. JOHNSTON, 259 U.S. 13, 15; COFFMAN V. BREEZE CORPS., 323 U.S. 316,
324, OR IN WHICH THERE IS NO ACTUAL ANTAGONISTIC ASSERTION OF RIGHTS. 
CLEVELAND V. CHAMBERLAIN, 1 BLACK 419; SWIFT & CO. V. HOCKING VALLEY R.
CO., 243 U.S. 281, 289; NORTON V. VESTA COAL CO., 291 U.S. 641; UNITED
STATES V. JOHNSON, 319 U.S. 302. 

UPON AN EXAMINATION OF THE RECORD IN THIS CASE WE FIND THAT IT SHOWS
THAT PETITIONERS OR SOME OF THEM HAVE MEMBERS WHO ARE EMPLOYED IN THE
STATE OF ALABAMA IN INDUSTRIES WHOSE EMPLOYEES ARE SUBJECT TO THE
NATIONAL LABOR RELATIONS ACT, AND THAT THEY ACT IN THE STATE AND ARE
CERTIFIED AS BARGAINING REPRESENTATIVES OF SUCH EMPLOYEES UNDER THE
ACT.  BUT THE EXTENT TO WHICH THEY ACT IN THE STATE AS BARGAINING
REPRESENTATIVES OF EMPLOYEES IN INDUSTRIES WHICH ARE NOT SUBJECT TO THE
NATIONAL LABOR RELATIONS ACT DOES NOT APPEAR, AND CONSEQUENTLY THE
RECORD AFFORDS NO ADEQUATE BASIS FOR AN ADJUDICATION OF THE EXTENT TO
WHICH FOR THAT REASON THE PETITIONERS OR SOME OF THEM MAY BE RIGHTLY
SUBJECT TO LOCAL REGULATION EVEN THOUGH THEY ALSO REPRESENT EMPLOYEES
IN OTHER INDUSTRIES WHICH ARE SUBJECT TO THE NATIONAL ACT. 

THE RECORD DOES NOT SHOW WHETHER OR NOT PETITIONERS PROVIDE INSURANCE
BENEFITS FOR THEIR MEMBERS.  THE STATE SUPREME COURT HAS CONSTRUED SEC.
16 AS INAPPLICABLE WHENEVER IT WOULD OTHERWISE "INTERFERE WITH OR VOID
ANY INSURANCE CONTRACT NOW IN EXISTENCE AND IN FORCE" AND, AS
CONSTRUED, HAS HELD IT VALID AS APPLIED TO PETITIONERS.  ON THIS STATE
OF THE RECORD WE ARE UNABLE TO SAY TO WHAT EXTENT SEC. 16 CAN BE DEEMED
APPLICABLE TO MEMBERS OF ANY OF PETITIONERS BECAUSE OF EXISTING
INSURANCE ARRANGEMENTS.  FOR THIS AND THE OTHER REASONS STATED IN OUR
OPINION IN THE ALABAMA STATE FEDERATION OF LABOR CASE THE RECORD DOES
NOT PRESENT A CASE CALLING FOR DECISION OF THE CONSTITUTIONAL VALIDITY
OF SEC. 16 AS APPLIED TO ANY EXISTING UNION MEMBERS. 

PETITIONERS NEVERTHELESS ASSERT THAT THEY INTEND TO ADMIT SUCH
SUPERVISORY EMPLOYEES AS MEMBERS IN THE FUTURE, AND THAT THE SUPREME
COURT OF ALABAMA IN THE ALABAMA STATE FEDERATION OF LABOR CASE HAS HELD
THAT SUCH FUTURE "EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, OR
SUPERVISORY" EMPLOYEES ARE NOT EXCEPTED FROM THE PROVISIONS OF SEC. 16
BY REASON OF THEIR ACQUISITION AS SUCH EMPLOYEES OF INSURANCE
BENEFITS.  ALTHOUGH THERE IS EVIDENCE IN THE RECORD INDICATING THAT
SOME OF PETITIONERS WHO HAVE NON-SUPERVISORY MEMBERS ADMIT TO
MEMBERSHIP EMPLOYEES WHOM THEY DESIGNATE AS "SUPERVISORY" IN THE WORDS
OF THE STATUTE, AND WILL CONTINUE TO DO SO, THERE IS ALSO EVIDENCE THAT
THEY DO NOT ADMIT SUPERVISORY EMPLOYEES WHO HAVE THE RIGHT TO "HIRE AND
FIRE."  THE SUPREME COURT OF ALABAMA DID NOT IN ITS OPINION IN THIS
CASE OR IN THE ALABAMA STATE FEDERATION OF LABOR CASE DEFINE THE
STATUTORY LANGUAGE "EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, OR
SUPERVISORY EMPLOYEE."  THUS ON THE BASIS OF THE RECORD BEFORE US WE DO
NOT KNOW WHETHER THOSE EMPLOYEES WHICH PETITIONERS INTEND TO ADMIT TO
MEMBERSHIP ARE SUCH AS ARE INCLUDED IN SEC. 16.  WE DO NOT KNOW THAT
SEC. 16 WILL NOT BE INTERPRETED TO EMBRACE ONLY THOSE EMPLOYEES WHICH
HAVE THE AUTHORITY TO EMPLOY AND DISCHARGE EMPLOYEES.  AND SO IT DOES
NOT APPEAR THAT THE STATUTE WILL BE APPLIED SO AS TO RAISE THE FEDERAL
QUESTION WHICH WE ARE ASKED TO DECIDE. 

FURTHER, THE CONTENTION THAT SEC. 16 CONFLICTS WITH THE NATIONAL
LABOR RELATIONS ACT, CF. HILL V. FLORIDA, POST, P. 538, WAS NOT PASSED
ON BY THE CIRCUIT COURT, WAS NOT RAISED BY ASSIGNMENT OF ERROR IN THE
ALABAMA SUPREME COURT, AND THAT COURT DID NOT PASS ON THAT QUESTION
EITHER IN ITS OPINION IN THIS CASE OR IN ITS OPINION IN THE ALABAMA
STATE FEDERATION OF LABOR CASE WHICH IT ADOPTED AS CONTROLLING.  THE
ALABAMA SUPREME COURT WILL NOT CONSIDER ERRORS WHICH HAVE NOT BEEN
ASSIGNED, ROWLAND & CO. V. PLUMMER, 50 ALA. 182, 197; PETTIBONE-TAYLOR
CO. V. FARMERS BANK, 156 ALA. 666, 46 SO. 751; MALANEY V. LADURA MINES
CO., 191 ALA. 655, 65 SO. 666; NICHOLS V. HARDEGREE, 202 ALA. 132, 79
SO. 598; HALLE V. BROOKS, 209 ALA. 486, 96 SO. 341, OR WHICH HAVE NOT
BEEN SPECIFICALLY AND PRECISELY RAISED IN THE ASSIGNMENTS OF ERROR,
KINNON V. LOUISVILLE & NASHVILLE R. CO., 187 ALA. 480, 65 SO. 397;
CARNEY V. KISER CO., 200 ALA. 527, 76 SO. 853; HALL V. PEARCE, 209 ALA.
397, 399, 96 SO. 608; JACKSON LUMBER CO. V. BUTLER, 244 ALA. 348, 13
SO.2D 294, 298.  SINCE THE STATE SUPREME COURT DID NOT PASS ON THE
QUESTION NOW URGED, AND SINCE IT DOES NOT APPEAR TO HAVE BEEN PROPERLY
PRESENTED TO THAT COURT FOR DECISION, WE ARE WITHOUT JURISDICTION TO
CONSIDER IT IN THE FIRST INSTANCE HERE.  CAPERTON V. BOWYER, 14 WALL. 
216, 236; HULBERT V. CHICAGO, 202 U.S. 275, 280, 281; DORRANCE V.
PENNSYLVANIA, 287 U.S. 660; CHANDLER V. MANIFOLD, 290 U.S. 665; SEE
ALSO FLOURNOY V. WIENER, 321 U.S. 253; CHARLESTON ASSN. V. ALDERSON,
324 U.S. 182, 185, AND CASES CITED. 

WE FIND NO OTHER FACTUAL DIFFERENCES CALLING FOR COMMENT BETWEEN THE
CASE PRESENTED BY THE RECORD HERE AND THAT PRESENTED IN THE ALABAMA
STATE FEDERATION OF LABOR CASE.  OUR DECISION HERE IS THEREFORE
CONTROLLED BY OUR DECISION IN THAT CASE.  THE QUESTION RAISED AS TO THE
EQUAL PROTECTION OF THE LAWS IS TOO UNSUBSTANTIAL TO MERIT REVIEW.  THE
OTHER ISSUES, AS PRESENTED BY THE RECORD NOW BEFORE US, ARE, FOR
REASONS STATED AT LENGTH IN OUR OPINION IN THE ALABAMA STATE FEDERATION
OF LABOR CASE, INAPPROPRIATE FOR DECISION IN A DECLARATORY JUDGMENT
PROCEEDING.  THE WRIT OF CERTIORARI IS ACCORDINGLY DISMISSED. 
..END :










KEEGAN V. UNITED STATES, 325 U.S. 478 


ARGUED NOVEMBER 9, 10, 1944.  - DECIDED JUNE 11, 1945.  - 141 F.2D 248,
REVERSED. 


1.  THE EVIDENCE IN THIS CASE WAS INSUFFICIENT TO SUSTAIN CONVICTION
OF THE PETITIONERS, MEMBERS OF THE GERMAN-AMERICAN BUND, FOR CONSPIRACY
KNOWINGLY TO COUNSEL OTHERS TO EVADE SERVICE IN THE ARMED FORCES OF THE
UNITED STATES, IN VIOLATION OF SEC. 11 OF THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940.  PP. 488, 494. 

OPINION OF ROBERTS, J., IN WHICH FRANKFURTER AND MURPHY, JJ.,
CONCUR: 

2.  PROMULGATION AND COMMUNICATION OF BUND COMMAND NO. 37 WAS NOT IN
ITSELF A COUNSEL TO EVADE; EVIDENCE OF THE GENERAL DISPOSITION OF THE
PETITIONERS EITHER TOWARDS THE GOVERNMENT OF THE UNITED STATES OR
TOWARDS THE SELECTIVE SERVICE ACT DID NOT MAKE THE COMMAND A COUNSEL TO
EVADE; AND THE EVIDENCE AND ORAL STATEMENTS OF THE VARIOUS PETITIONERS
AT COMMITTEE MEETINGS AND UNIT MEETINGS OF THE BUND DID NOT SUPPLY THE
BASIS FOR A FINDING, BEYOND A REASONABLE DOUBT, OF COUNSELLING, OR
INTENDING TO COUNSEL, OR CONSPIRING TO COUNSEL, EVASION OF MILITARY
SERVICE WITHIN THE MEANING OF SEC. 11 OF THE ACT.  P. 494.  BLACK AND
RUTLEDGE, JJ., CONCUR IN SEPARATE OPINIONS, PP. 495, 498. 

KEEGAN V. UNITED STATES. 

NO. 39.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT* . 

*TOGETHER WITH NO. 44, KUNZE ET AL. V. UNITED STATES, ALSO ON
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 322 U.S. 719, TO REVIEW A JUDGMENT AFFIRMING CONVICTIONS
OF CONSPIRACY IN VIOLATION OF SEC. 11 OF THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940. 

MR. JUSTICE ROBERTS ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
THE FOLLOWING OPINION, IN WHICH MR. JUSTICE FRANKFURTER AND MR. JUSTICE
MURPHY CONCUR. 

TWO INDICTMENTS, ONE RETURNED JULY 7, 1942, THE OTHER RETURNED AUGUST
26, 1942, CHARGED A CONSPIRACY BEGINNING JANUARY 1, 1940, AND ENDING AT
THE DATES THE INDICTMENTS WERE FOUND.  THE EVIDENT PURPOSE OF THE
SECOND WAS TO INCLUDE SEVERAL ADDITIONAL DEFENDANTS AS ALLEGED
CONSPIRATORS.  WE SHALL TREAT THEM AS ONE. 

THE CONSPIRACY CHARGED WAS TO COUNSEL DIVERS PERSONS TO EVADE,
RESIST, AND REFUSE SERVICE IN THE LAND AND NAVAL FORCES OF THE UNITED
STATES IN VIOLATION OF SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE
ACT OF 1940, 50 U.S.C. APP. 311. 

THE ACT DEFINES THE CRIME AS CONSPIRACY "KNOWINGLY" TO COUNSEL
"ANOTHER TO EVADE REGISTRATION OR SERVICE IN THE LAND OR NAVAL FORCES
..." 

THE PROOFS WOULD NOT SUSTAIN, AND THE INDICTMENT DOES NOT CONTAIN,
ANY CHARGE OF CONSPIRACY TO COUNSEL EVASION OF REGISTRATION. 

IN CERTAIN PARAGRAPHS OF THE INDICTMENT IT IS CHARGED 

(1)  THAT IT WAS PART OF THE CONSPIRACY THAT EACH WAS AND WOULD
REMAIN A MEMBER OF THE GERMAN-AMERICAN BUND; THAT EACH WAS A
RESPONSIBLE LEADER OF THE BUND. 

(2)  THAT SOME PREPARED GERMAN ARTICLES CALLED BUND COMMANDS AND
OTHERS DISTRIBUTED AND CAUSED THEM TO BE DISTRIBUTED TO UNITS OF THE
BUND. 

(3)  THAT THE COMMANDS WERE READ AT MEETINGS. 

(4)  THAT COMMAND 37 COUNSELLED, DIRECTED, AND URGED THOSE TO WHOM
ITS CONTENTS WERE COMMUNICATED TO EVADE, RESIST, AND REFUSE SERVICE IN
THE LAND AND NAVAL FORCES. 

(5)  THAT ARTICLES IN THE NEWSPAPER "THE FREE AMERICAN," PUBLISHED BY
THE BUND, WHICH WERE DISTRIBUTED, URGED GERMAN-AMERICAN CITIZENS AND
OTHERS TO RESIST, REFUSE AND EVADE SUCH SERVICE. 

(6)  THAT THE DEFENDANTS OTHERWISE URGED GERMAN-AMERICAN CITIZENS AND
OTHERS TO RESIST THE PROVISIONS OF THE ACT OF 1940 AND TO EVADE
SERVICE. 

THE 25 DEFENDANTS WERE TRIED TOGETHER.  ONE WAS ACQUITTED.  THE
GOVERNMENT CALLED 68 WITNESSES AND THE TRIAL LASTED FROM SEPTEMBER 17TH
TO OCTOBER 19TH, 1942.  THE PRINTED TRANSCRIPT OF TESTIMONY FURNISHED
THIS COURT COVERS JUST SHORT OF 800 PAGES, AND THE EXHIBITS OFFERED IN
EVIDENCE RUN TO OVER 350, SOME OF THEM CONTAINING OVER 50 PAGES.  THE
DEFENDANTS WERE REPRESENTED AT THE TRIAL BY APPOINTED COUNSEL AS THEY
WERE NOT ABLE TO EMPLOY COUNSEL. 

THE GOVERNMENT CORRECTLY STATES THAT THE EVIDENCE OFFERED BY THE
PROSECUTOR FALLS INTO TWO CLASSES:  (1) THAT TOUCHING THE GERMAN
AMERICAN BUND AND ITS PURPOSES, WHICH WAS OFFERED TO INDICATE THE
MOTIVES AND PURPOSES FOR THE DEFENDANTS' STATEMENTS AND ACTIONS; AND
(2) EVIDENCE TOUCHING SPECIFIC ACTIONS, CONDUCT, AND STATEMENTS TENDING
TO SHOW THE EXISTENCE OF A CONSPIRACY AND THE STEPS TAKEN PURSUANT TO
IT.  THE EVIDENCE IN THE FIRST CATEGORY IS OVERWHELMINGLY GREATER IN
VOLUME THAN THAT IN THE SECOND.  INDEED A QUESTION ARISES WHETHER IT
WAS NOT AN ABUSE OF DISCRETION TO PERMIT THE GOVERNMENT TO GO, AT SUCH
INORDINATE LENGTH, INTO EVIDENCE CONCERNING THE BUND AND ITS
PREDECESSOR, THE FRIENDS OF NEW GERMANY, DURING A PERIOD OF SEVEN YEARS
PRIOR TO THE INCEPTION OF THE ALLEGED CONSPIRACY; AND CONCERNING BUND
UNIFORMS AND PARAPHERNALIA, AND PICTURES AND LITERATURE IN THE
POSSESSION OF VARIOUS DEFENDANTS. 

WHAT WE SHALL CHARACTERIZE AS THE BACKGROUND EVIDENCE MAY BE
SUMMARIZED.  THE PROOFS DISCLOSE THAT THERE EXISTED FROM SOME TIME IN
THE EARLY 1930'S A SOCIETY KNOWN AS THE FRIENDS OF NEW GERMANY.  ABOUT
1935 THE NAME WAS CHANGED TO THE GERMAN-AMERICAN BUND.  AFTER FRITZ
KUHN, THE LEADER OF THE ORGANIZATION, HAD BEEN ARRESTED AND CONVICTED
OF CERTAIN OFFENSES IRRELEVANT TO THE PRESENT CASE, KUNZE, ONE OF THE
PETITIONERS, BECAME PRESIDENT.  AT THE CONVENTION OF 1940 A NEW
CONSTITUTION WAS ADOPTED; AND AT SOME TIME WITHIN THE DATES SPECIFIED
AS COVERING THE CONSPIRACY A SYNOPSIS OF THE STRUCTURE OF THE BUND WAS
PROMULGATED.  MINUTES OF THE CONVENTION OF 1940 ALSO WERE IN EVIDENCE. 

FROM THESE DOCUMENTS A CONCEPTION OF THE NATURE AND, TO SOME EXTENT,
THE PURPOSES OF THE ASSOCIATION MAY BE OBTAINED.  IT WAS ORGANIZED ON
THE FUEHRER OR LEADERSHIP PRINCIPLE.  THE PRESIDENT WAS THE LEADER, AND
WAS AMENABLE ONLY TO THE ASSOCIATION IN CONVENTION ASSEMBLED.  HIS
ORDERS WERE LAW UNLESS AND UNTIL MODIFIED OR ABROGATED BY A
CONVENTION.  MEMBERS WERE EXPECTED TO OBEY HIS ORDERS.  DISOBEDIENCE
INVOLVED DISCIPLINE, OR EXPULSION FROM THE ORGANIZATION.  THE ENTIRE
HIERARCHY OF CONSTITUENT ORGANIZATIONS AND OF OFFICIALS, NATIONAL AND
LOCAL, WAS CREATED BY HIM; AND ALL OFFICIALS, HIGH AND LOW, HELD OFFICE
SUBJECT TO HIS PLEASURE.  THE CONSTITUENT ORGANIZATIONS CONSISTED OF
LOCAL UNITS, EACH OF WHICH HAD ITS LEADER, AND OF COLLATERAL
ORGANIZATIONS WITHIN A UNIT, SUCH AS AN OD DIVISION, WHOSE FUNCTION WAS
TO DRILL IN UNIFORM, TO POLICE MEETINGS OF MEMBERS, AND PERFORM OTHER
SIMILAR DUTIES; A YOUTH ORGANIZATION, ETC. 

THE PROFESSED PURPOSE OF THE BUND WAS TO KEEP ALIVE THE GERMAN SPIRIT
AMONG PERSONS OF GERMAN BLOOD IN THE UNITED STATES.  SPEECHES AND
LITERATURE JUSTIFY THE INFERENCE THAT THE BUND ENDORSED THE NAZI
MOVEMENT IN GERMANY AND, IF IT DID NOT ACTUALLY ADVOCATE SOME SUCH FORM
OF GOVERNMENT IN THIS COUNTRY, AT LEAST ESSAYED TO CREATE PUBLIC
OPINION FAVORABLE TO THE HITLER REGIME AND TO THE GERMAN NATIONAL
SOCIALIST STATE.  THE BUND WAS ALSO ANTI-BRITISH AND OPPOSED OUR
ENTERING THE WAR ON THE SIDE OF THE BRITISH; ITS AIM WAS TO KEEP US
NEUTRAL AND FRIENDLY TO THE NEW GERMANY.  THERE IS MUCH IN LITERATURE
PUT OUT OR APPROVED BY THE BUND CONCERNING "DISCRIMINATION" AGAINST
AMERICAN CITIZENS OF GERMAN BLOOD AND THE FIGHT WHICH MUST BE WAGED
AGAINST IT.  THERE IS ALSO MUCH TO THE EFFECT THAT THE BUND IS PURSUING
LAWFUL AIMS WITHIN THE CONSTITUTIONAL RIGHTS OF ITS MEMBERS, AND THAT
ITS ACTIVITIES NEED NOT BE HIDDEN FROM GOVERNMENTAL AGENCIES.  THERE IS
BASIS FOR SUSPICION OF SUBVERSIVE CONDUCT; THERE IS MATTER OFFENSIVE TO
ONE'S SENSE OF LOYALTY TO OUR GOVERNMENT'S POLICIES.  THERE MAY WELL BE
DOUBT OF THE ORGANIZATION'S HEARTY SUPPORT OF THOSE POLICIES, BUT IF
THE BUND AND ITS MEMBERSHIP WERE, PRIOR OR SUBSEQUENT TO JANUARY 1,
1940, ENGAGED IN ILLEGAL ACTIVITIES, OTHER THAN THOSE CLAIMED TO PROVE
THE CHARGE LAID IN THE INDICTMENT, THE RECORD IS BARE OF EVIDENCE OF
ANY SUCH. 

THE DRAFT ACT WAS INTRODUCED IN CONGRESS IN JUNE, 1940, WAS AMENDED
SEPTEMBER 7 BY ADDING SEC. 8(I) AND AS SO AMENDED BECAME LAW SEPTEMBER
16, 1940.  PRIOR TO SEPTEMBER 7 THERE SEEMS TO HAVE BEEN NO SUGGESTION
BY THE BUND OR ITS OFFICERS THAT, IF PASSED, THE LAW WOULD NOT BE
BINDING ON ALL AND OUGHT NOT TO BE OBEYED.  THE ORAL EVIDENCE
RESPECTING THIS PERIOD IS ALMOST ENTIRELY THAT OF LUEDTKE, FORMER
SECRETARY OF THE BUND, WHO WAS A DEFENDANT AND TURNED STATE'S
EVIDENCE. 

HE STATES THAT THE BUND AND ITS MEMBERS ALWAYS FAVORED A COMPULSORY
SELECTIVE SERVICE ACT.  BUT, HE SAID, THEY WERE OPPOSED TO THE
PRINCIPLE OF USING A DRAFT ARMY TO FIGHT AGAINST GERMANY.  THE BUND
FEARED THAT THE PRESIDENT MIGHT USE A CONSCRIPT ARMY BY SENDING IT
ABROAD TO FIGHT WITH ENGLAND, AGAINST GERMANY.  THE BUND DESIRED THIS
COUNTRY TO MAINTAIN NEUTRALITY BY NOT HAVING OUR SOLDIERS GO TO FOREIGN
SHORES.  THESE VIEWS WERE THEN SHARED BY MANY LOYAL CITIZENS, AND SOME
OF THEM WERE ENACTED INTO LAW BY CONGRESS.  (SEE SEC. 3(E) OF THE
SELECTIVE TRAINING AND SERVICE ACT.) 

THERE IS NO DOCUMENTARY EVIDENCE TO CONTRADICT THIS TESTIMONY. 
NOTHING APPEARS IN THE MINUTES OF THE NATIONAL CONVENTION HELD AUGUST
31-SEPTEMBER 2, 1940, OR IN THE TESTIMONY AS TO ITS PROCEEDINGS, WITH
REFERENCE TO SELECTIVE SERVICE.  IT IS TRUE LUEDTKE SAYS THERE WAS SOME
TALK ABOUT IT, AND THE STENOGRAPHER WAS INSTRUCTED TO OMIT THIS FROM
THE RECORD; BUT HE DOES NOT SAY THAT SUCH TALK WAS IN ANY WAY
INCONSISTENT WITH WHAT HE HAD TESTIFIED AS TO THE BUND'S ATTITUDE. 

ON SEPTEMBER 7, WHILE THE BILL WAS PENDING IN THE HOUSE, AN AMENDMENT
WAS OFFERED, WAS ADOPTED AS OFFERED, AND REMAINED IN THE BILL WHEN
SIGNED BY THE PRESIDENT.  IT IS 

"8(I)  IT IS THE EXPRESSED POLICY OF THE CONGRESS THAT WHENEVER A
VACANCY IS CAUSED IN THE EMPLOYMENT ROLLS OF ANY BUSINESS OR INDUSTRY
BY REASON OF INDUCTION INTO THE SERVICE OF THE UNITED STATES OF AN
EMPLOYEE PURSUANT TO THE PROVISIONS OF THIS ACT SUCH VACANCY SHALL NOT
BE FILLED BY ANY PERSON WHO IS A MEMBER OF THE COMMUNIST PARTY OR THE
GERMAN-AMERICAN BUND" (50 U.S.C. APP. 308(I)). 

ADMITTEDLY KUNZE, PROBABLY WITH THE APPROVAL OF OTHER DEFENDANTS,
PROTESTED BY LETTER AND TELEGRAM TO MEMBERS OF CONGRESS AGAINST THE
PASSAGE OF THE BILL THUS AMENDED AND TO THE PRESIDENT AGAINST SIGNING
IT.  THE ACT BECAME LAW SEPTEMBER 16TH.  SHORTLY THEREAFTER KUNZE
CALLED A MEETING OF UNIT LEADERS, AT WHICH MANY OF THE DEFENDANTS WERE
PRESENT, INCLUDING KEEGAN, THE COUNSEL OF THE BUND.  KEEGAN ADDRESSED
THE MEETING AND SAID THAT THERE WAS A CONSTITUTIONAL QUESTION INVOLVED,
THAT MEMBERS OF THE BUND HAD BEEN DISCRIMINATED AGAINST (IT IS PLAIN
THIS STATEMENT APPLIES TO SEC. 8(I)); AND THEY HAD A RIGHT TO GO TO
COURT TO ESTABLISH THEIR RIGHTS.  KUNZE RECITED HIS EFFORTS TO PREVENT
PASSAGE OF THE BILL, SAID AN ARTICLE WAS TO APPEAR IN "FREE AMERICAN"
ENTITLED "NO RIGHTS, NO DUTIES" AND THAT THE BUND WAS GOING TO FIGHT
THE DISCRIMINATION.  HE EXPLAINED THAT THE ARTICLE WOULD MAKE CLEAR
THAT IF AMERICAN CITIZENS WERE DEPRIVED OF THEIR RIGHT TO WORK THEY
SHOULD NOT BE SADDLED WITH THE BURDEN OF MILITARY SERVICE.  HE SAID THE
BUND INTENDED TO FIGHT THIS DISCRIMINATION BY A TEST IN COURT.  NEITHER
KEEGAN NOR KUNZE SUGGESTED THAT BUND MEMBERS SHOULD RESIST MILITARY
SERVICE IRRESPECTIVE OF WHAT HAPPENED IN THE TEST CASE.  LUEDTKE, WHO
IS THE PRINCIPAL WITNESS AS TO WHAT OCCURRED AT THIS MEETING, SAID HE
NEVER HEARD KEEGAN, KUNZE, OR ANY NATIONAL LEADER ADVISE ANYONE TO
RESIST MILITARY SERVICE, IRRESPECTIVE OF THE OUTCOME OF THE TEST CASE;
THAT IT WAS THE POLICY OF THE BUND TO GET THIS PROVISION (SEC. 8(I))
OUT OF THE ACT. 

THE SEQUEL TO THIS MEETING WAS THE ISSUE OF BUND COMMAND NO. 37 ON
OCTOBER 1, 1940.  (SOME 49 SUCH COMMANDS WERE OFFERED IN EVIDENCE,
THOUGH NONE BUT NO. 37 IS RELIED ON AS CONTAINING ANY STATEMENT
RELEVANT TO THE CHARGE.)  IN THIS COMMAND, ONE OF SEVERAL SUBJECTS
DEALT WITH WAS THAT OF MILITARY SERVICE.  THE WHOLE OF THIS SECTION IS,
ACCORDING TO THE TRANSLATION SUBMITTED BY THE GOVERNMENT: 

"4.  MILITARY SERVICE:  ON OCTOBER 16, OF THIS YEAR, ALL CITIZENS AND
NON-CITIZENS (MALE) WHO ARE OF AGE, BUT WHO HAVE NOT PASSED THEIR 36TH
YEAR, MUST REGISTER WITH THE MILITARY AUTHORITIES.  THIS ORDER MUST BE
COMPLIED WITH UNHESITATINGLY. 

"WE REPRESENT THE STANDPOINT, HOWEVER, THAT AN INDUCTION INTO THE
MILITARY SERVICE IS NOT JUSTIFIED, IN AS FAR IT CONCERNS BUND MEMBERS
AND AMERICAN GERMANS, FOR IN THE SELECTIVE SERVICE LAW THE CITIZENSHIP
RIGHTS OF BUND MEMBERS AND THE DEFENDERS OF GERMANDOM ARE
UNCONSTITUTIONALLY SEVERED. 

"EVERY MAN, IF HE CAN, WILL REFUSE TO DO MILITARY DUTY UNTIL THIS LAW
AND ALL OTHER LAWS OF THE COUNTRY OR THE STATES WHICH CONFINE THE
CITIZENSHIP RIGHTS OF BUND MEMBERS ARE REVOKED. 

"WE WILL FIGHT TO ESTABLISH A PRECEDENT IN THIS SERVILE MATTER." 

WARNER, THE TRANSLATOR, A GOVERNMENT WITNESS, TESTIFIED THAT THE
GERMAN WORD "PRAZEDENFALL," HERE TRANSLATED "PRECEDENT," MEANS "A TEST
CASE IN THE LEGAL SENSE," "A CASE WHICH THEY REFER TO AS A PRECEDENT." 
HE FURTHER TESTIFIED THAT THE GERMAN WORDS TRANSLATED ABOVE SIMPLY AS
THE ENGLISH "IF HE CAN" MAY BE FAIRLY TAKEN TO MEAN "IF HE CAN PROPERLY
DO SO" OR "IF HE CAN POSSIBLY DO SO."  AND HE FURTHER AGREED THAT THE
WORD "JEDER," WHICH HE TRANSLATED AS "EVERY," MIGHT PROPERLY BE
TRANSLATED AS "EACH." 

THUS ALTERED, THE PHRASE WOULD READ:  "EACH MAN IF HE PROPERLY CAN
...  WILL REFUSE TO DO MILITARY SERVICE  ...  UNTIL THIS LAW ETC." 

AS WILL BE SEEN FROM WHAT FOLLOWS, THE GOVERNMENT'S CASE IS REALLY
PITCHED ON THIS COMMAND, WHICH IT CONSTRUES AS A COUNSEL TO EVADE
MILITARY SERVICE.  THE PROOF WENT TO GREAT LENGTHS TO SHOW THAT IT
REACHED VARIOUS UNIT LEADERS, AND THAT THEY READ IT OR MADE IT
AVAILABLE TO THE MEMBERS OF THEIR UNITS.  THE EVIDENCE IS THAT EACH OF
THE DEFENDANTS WHO WAS A UNIT LEADER EITHER READ IT TO SOME MEMBERS OF
HIS UNIT OR MADE IT AVAILABLE TO THEM, EXCEPT ONLY SCHNELLER. 

THE BUND HELD A CONVENTION IN 1941 BUT THERE IS NO EVIDENCE THAT
SELECTIVE SERVICE WAS THERE DISCUSSED.  IT DISBANDED IN DECEMBER 1941. 
THERE IS EVIDENCE THAT THE LEADERS ADVISED THE MEMBERS TO KEEP
TOGETHER, TO MEET FOR SINGING AND SOCIAL PURPOSES; BUT NO EVIDENCE THAT
ANYTHING WAS SAID ABOUT SELECTIVE SERVICE OR MILITARY SERVICE.    IF
THE PROMULGATION OR IMPARTING OF THE CONTENTS OF COMMAND NO. 37, AND
CONCURRENCE IN ITS PURPOSE, IS EVIDENCE OF AN INTENT TO COUNSEL EVASION
OF MILITARY SERVICE, THE CONVICTION OF ALL THE DEFENDANTS, SAVE
SCHNELLER, WAS JUSTIFIED.  BUT THE GOVERNMENT EVIDENTLY FELT THAT A
COUNSEL TO REGISTER FOR THE DRAFT, THUS MAKING ONE'S LIABILITY TO
SERVICE, HIS ADDRESS, ETC., MATTERS OF PUBLIC RECORD, AND THEN, IF
POSSIBLE, TO REFUSE SERVICE, IF A SUPPOSED DISCRIMINATION REMAINED
EFFECTIVE, COULD HARDLY BE CLAIMED TO BE A COUNSEL TO EVADE. 

THIS BECOMES THE CLEARER IF WE ANALYZE THE PROVISIONS OF SEC. 11 OF
THE ACT (50 U.S.C. APP. SEC. 311). 

IT SUBJECTS TO PUNISHMENT ANY PERSON: 

(1)  WHO SHALL KNOWINGLY MAKE OR BE A PARTY TO MAKING ANY FALSE
REGISTRATION; 

(2)  WHO SHALL KNOWINGLY MAKE OR BE A PARTY TO MAKING ANY FALSE
STATEMENT AS TO HIS OR ANOTHER'S FITNESS OR LIABILITY FOR SERVICE; 

(3)  WHO KNOWINGLY COUNSELS, AIDS, OR ABETS ANOTHER TO EVADE
REGISTRATION OR SERVICE; 

(4)  WHO IN ANY MANNER SHALL KNOWINGLY FAIL OR NEGLECT TO PERFORM ANY
DUTY REQUIRED OF HIM BY THE ACT; 

(5)  WHO SHALL KNOWINGLY HINDER OR INTERFERE BY FORCE OR VIOLENCE
WITH THE ADMINISTRATION OF THE ACT; 

(6)  WHO SHALL CONSPIRE SO TO DO. 

IT WILL BE NOTED THAT RESISTANCE OR REFUSAL ARE NOWHERE MENTIONED,
EXCEPT AS SUCH REFUSAL WOULD CONSTITUTE A NEGLECT TO PERFORM A DUTY
ENJOINED BY THE ACT (4) OR WERE ACCOMPANIED BY FORCE OR VIOLENCE (5). 
ON THE OTHER HAND, THERE APPEAR IN COLLOCATION DESCRIPTIONS OF TWO
SORTS OF EVASION, FALSE ENTRIES (1) AND FALSE STATEMENTS (2)
IMMEDIATELY FOLLOWED BY THE DENUNCIATION OF COUNSELLING "EVASION" (3). 
PLAINLY ENOUGH THE ACT DISTINGUISHES EVASION, A SPECIES OF FRAUDULENT
CONDUCT, FROM MERE NEGLECT OF DUTY AND FROM FORCIBLE AND VIOLENT
INTERFERENCE OR RESISTANCE. 

THE CLASSIFICATION SO MADE CORRESPONDS WITH WHAT "EVADE" MEANS TO THE
COMMON UNDERSTANDING, AND THE EFFORT OF THE DRAUGHTSMAN OF THE
INDICTMENT TO MAKE EVASION THE EQUIVALENT OF REFUSAL OR RESISTANCE,
DOES VIOLENCE TO SUCH USAGE AS WELL AS TO THE STATUTE. 

"EVADE" IS DEFINED AS, "TO ESCAPE; TO SLIP AWAY; TO TAKE REFUGE IN
EVASION; TO USE ARTIFICE IN AVOIDANCE." 

"RESIST" IS DEFINED AS, "TO WITHSTAND; TO OPPOSE BY PHYSICAL, MENTAL,
OR MORAL POWER." 

"REFUSE" IS DEFINED AS, "TO DECLINE TO ACCEPT; TO REJECT; TO DECLINE
TO SUBMIT TO OR UNDERGO." 

NOW THE SUREST WAY OF RENDERING ONESELF INCAPABLE OF EVADING MILITARY
SERVICE, OF SLIPPING AWAY OR ESCAPING IT, IS TO REGISTER.  AND THE BUND
COMMAND WHICH IS AT THE CORE OF THE GOVERNMENT'S CASE ENJOINS
REGISTRATION IN THE STRONGEST TERMS.  THAT ACCOMPLISHED, A REFUSAL TO
SERVE MAY FOLLOW WHEN THE REGISTRANT IS TO BE INDUCTED.  BUT TO COUNSEL
MERELY REFUSAL IS NOT MADE CRIMINAL BY THE ACT. 

THE PROVISIONS OF SEC. 8(I) OF THE ACT HARDLY NEED ANIMADVERSION. 
THEY SPEAK FOR THEMSELVES.  CAN IT BE THAT CRITICISM, THAT AN EFFORT TO
ELIMINATE THEM FROM THE ACT, OR FORTHRIGHT ADVICE TO THOSE
DISCRIMINATED AGAINST BY THOSE PROVISIONS, TO REGISTER BUT NOT, IF IT
CAN BE AVOIDED, TO SERVE, UNLESS THOSE PROVISIONS HAVE BEEN SUSTAINED
BY THE COURTS AS LEGAL, AMOUNT TO COUNSELLING EVASION OF SERVICE?  THE
BELIEF THAT VALIDITY OF THE OTHER PROVISIONS OF THE ACT DEPENDS ON THE
VALIDITY OF THAT SECTION MAY SEEM FOOLISH TO US, BUT CAN WE SAY THAT
THE OTHER DEFENDANTS DID NOT BELIEVE WHAT THE BUND'S LAWYER TOLD THEM
ABOUT THAT? 

THUS THE GOVERNMENT, RECOGNIZING THAT THE ISSUE AND COMMUNICATION OF
COMMAND NO. 37 DID NOT, IN ITSELF, CONSTITUTE A COUNSELLING TO EVADE
MILITARY SERVICE, SOUGHT TO PROVE A SINISTER AND UNDISCLOSED INTENT IN
CONNECTION WITH IT TO COUNSEL EVASION.  FOR THIS PURPOSE IT RELIED
FIRST ON THE SO-CALLED UN-AMERICAN SENTIMENTS AND STATEMENTS OF THE
BUND; ON ARTICLES WHICH APPEARED IN THE "FREE AMERICAN" AND ON
PROCEEDINGS HAD AND SPEECHES MADE AT THE 1940 CONVENTION.  BUT THESE
EVINCED NOTHING BEARING ON THE CHARGE LAID IN THE INDICTMENT.  AT MOST
THEY WERE EVIDENCE THAT THE DEFENDANTS, OR SOME OF THEM, WERE THE KIND
OF MEN WHO MIGHT BE INCLINED TO COUNSEL EVASION OF MILITARY SERVICE. 

IN ADDITION, THE GOVERNMENT INTRODUCED EVIDENCE AS TO STATEMENTS MADE
BY ONE OR OTHER OF THE DEFENDANTS AT UNIT MEETINGS OR OTHER GATHERINGS
OF BUND MEMBERS.  IT MUST, IN FINAL ANALYSIS, SUSTAIN THE JUDGMENT BY
THIS EVIDENCE. 

WE THINK THE EVIDENCE INSUFFICIENT TO OVERCOME THE INNOCENT PURPORT
OF COMMAND NO. 37 AND TO FASTEN ON THOSE WHO IMPARTED THAT COMMAND A
COVERT PURPOSE KNOWINGLY TO COUNSEL EVASION OF MILITARY SERVICE.  THE
TESTIMONY HAS BEEN CAREFULLY EXAMINED.  IT CANNOT BE QUOTED IN
EXTENSO.  A SUMMARY MUST SUFFICE. 

MOST, THOUGH NOT ALL, OF THE TESTIMONY AS TO ORAL STATEMENTS BY THE
DEFENDANTS REFERS TO OCCASIONS BETWEEN SEPTEMBER 16, 1940, THE DATE OF
THE DRAFT ACT, AND JULY 9, 1941.  THERE IS NOTHING OF SIGNIFICANCE
AFTER THE LATTER DATE EXCEPT WHAT IS HEREINAFTER NOTED.  DURING THE
PERIOD MENTIONED COMMAND NO. 37 WAS READ OR MADE AVAILABLE TO MEMBERS
BY UNIT LEADERS, WAS TO SOME EXTENT DISCUSSED; AND, DURING THAT PERIOD,
KUNZE, ACCOMPANIED BY SOME OF THE NATIONAL LEADERS, VISITED VARIOUS
UNITS AND DISCUSSED THE ACT BEFORE GROUPS.  THE TESTIMONY, IN THE MAIN,
IS DIRECTED TO WHAT KUNZE, KEEGAN, AND UNIT LEADERS SAID ON THESE
OCCASIONS. 

MOST OF IT AMOUNTS TO THIS:  IT WAS STATED THAT THE ACT WAS UNFAIR
AND DISCRIMINATORY; THAT BUND MEMBERS OUGHT NOT AT THE SAME TIME BE
DEPRIVED OF CIVIL RIGHTS AND ASKED TO SERVE IN THE ARMED FORCES; THAT
THEY SHOULD NOT BE CALLED INTO THE ARMY UNTIL THE DISCRIMINATION WAS
ABOLISHED; THAT THE BUND WOULD FIGHT THE DISCRIMINATION; THAT THE BUND
WOULD TAKE STEPS TO CORRECT THE UNFAIRNESS OF THE ACT; THAT A LAWYER
WOULD TAKE CARE OF IT; THAT THE BUND WOULD BRING A TEST CASE IF MEANS
COULD BE DEVISED TO THAT END; THAT THOSE WHO COULD AFFORD IT SHOULD
REFUSE MILITARY SERVICE UNTIL THE DISCRIMINATION WAS REMOVED; THAT THE
BUND WOULD TRY TO GET THIS PROVISION OUT OF THE ACT; THAT SEC. 8(I) WAS
UNCONSTITUTIONAL; THAT THE MEMBERS HAD TO REGISTER BUT THAT IT WAS NOT
THOUGHT RIGHT TO ASK THEM TO DO SO WHILE THE DISCRIMINATION CONTINUED,
BUT THAT THEY SHOULD ENLIST MORE OR LESS UNDER PROTEST AND WAIT UNTIL
THEIR RIGHTS WERE RESTORED TO THEM.  ONE WITNESS TESTIFIED THAT KUNZE
ONCE STATED THAT IF THE MEMBERS WERE NOT TREATED RIGHT THEY DID NOT
HAVE TO BEAR ARMS AND THAT THE BUND WAS GOING TO MAKE A TEST CASE OF
THIS. 

REFERENCE SHOULD BE MADE TO CERTAIN SPECIFIC PORTIONS OF THE
TESTIMONY.  A MAIL CARRIER TESTIFIED THAT SHORTLY AFTER THE ACT WENT
INTO EFFECT HE SPOKE TO THE DEFENDANT BELOHLAVEK AT THE LATTER'S OFFICE
IN CLEVELAND.  OVER OBJECTION THAT THE EVIDENCE DID NOT GO TO PROVE ANY
CONSPIRACY, THE COURT ADMITTED IT.  THE WITNESS STATED THAT HE SAID TO
BELOHLAVEK: 

"JOE, YOU ARE IN THE DRAFT AREN'T YOU?  HE SAID, 'YES.'  I SAID,
'WHAT ARE YOU GOING TO DO IF THEY SEND YOU TO THE OTHER SIDE?'  SO HE
SAID, 'WELL,' - IT WAS A VULGAR WORD - 'I WILL RUN TO THE OTHER SIDE
AND FIGHT AGAINST THEM'." 

A WITNESS TESTIFIED THAT, AT A MEETING OF A GERMAN HIKING CLUB IN
BUFFALO EARLY IN 1942, KEEGAN REFERRED TO THE FACT THAT TWO OF HIS SONS
WERE IN THE ARMY, SAID HE FELT SORRY ABOUT THEM AND, REFERRING TO THOSE
PRESENT, SAID:  "YOU BOYS ARE LUCKY IN A WAY, YOU MIGHT EVADE MILITARY
SERVICE BECAUSE YOU ARE FOREIGN-BORN."  WHEN SOMEONE ASKED HOW AND WHY,
KEEGAN EXPLAINED:  "BY CLAIMING BEING A CONSCIENTIOUS OBJECTOR."  THE
WITNESS WENT TO KEEGAN AFTERWARDS, SPOKE TO HIM PRIVATELY AND SAID:
"SUPPOSING WHAT WOULD HAPPEN TO ME AS A NATURALIZED AMERICAN CITIZEN IF
I HAD TRIED TO EVADE MILITARY SERVICE BY CLAIMING BEING A CONSCIENTIOUS
OBJECTOR?  WELL, THEN, HE SAID, 'YOU WOULD LOSE YOUR CITIZENSHIP.' 
WELL, THEN, I SAID, 'OF COURSE, TO HELL WITH THAT'."  THE WITNESS WAS
INDUCTED INTO THE UNITED STATES ARMY. 

THROUGHOUT THE ENTIRE TESTIMONY THIS IS THE ONLY EVIDENCE THAT ANY
DEFENDANT, IN SPEAKING OF THE DRAFT OR MILITARY SERVICE, EVER BY THE
USE OF THE WORD "EVADE," OR OTHERWISE, GAVE ANY INDICATION OF A
COUNSELLING TO ANYONE TO ESCAPE MILITARY SERVICE.  UNDER CROSS
EXAMINATION THE WITNESS TESTIFIED THAT, IN ANSWERING QUESTIONS, KEEGAN
HAD SAID THAT THE ONLY WAY ANYONE COULD AVOID SERVING WAS BY CLAIMING
AND PROVING THAT HE WAS A CONSCIENTIOUS OBJECTOR. 

THERE IS EVIDENCE THAT, AT A MEETING HELD BEFORE THE ACT WAS PASSED,
KLAPPROTT SAID HE WOULD NOT FIGHT AGAINST GERMANY AND ALSO THAT "THE
DRAFT ACT WOULD BUILD UP AN ARMY THAT WOULD BE USED AGAINST GERMANY"
AND THAT HE "WOULD DO EVERYTHING" TO PREVENT THE PASSAGE OF SUCH AN
ACT. 

AS RESPECTS THE DEFENDANT KNUPFER, A WITNESS TESTIFIED: 

"WELL, MR. KNUPFER EXPLAINED THAT A LOT OF GERMAN PEOPLE LOSE THEIR
JOBS, AND IN A CASE LIKE THAT WE SHOULD REFUSE TO FIGHT." 

BUT, ON CROSS-EXAMINATION, THE WITNESS QUALIFIED HIS TESTIMONY TO THE
FOLLOWING EFFECT: 

"Q.  AND I BELIEVE YOU SAID SOMETHING ABOUT THAT IF THEY WERE NOT
ALLOWED TO HAVE JOBS THEN THEY SHOULD NOT BE CALLED UPON TO FIGHT, IS
THAT RIGHT?  A. THAT IS RIGHT. 

"Q.  AND THAT IS REALLY THE SUBSTANCE OF WHAT HE SAID TO YOU AT THAT
MEETING, IS IT NOT?  A. YES. 

     .         .        .         .         . 

"Q.  DID YOU EVER HEAR MR. KNUPFER SUGGEST TO YOU, OR TO ANYONE ELSE
IN THAT MEETING IN YOUR MEMBERSHIP GROUP, THAT YOU SHOULD NOT REGISTER
OR THAT YOU SHOULD EVADE THE SELECTIVE SERVICE ACT IN ANY WAY?  A. HE
DID NOT SAY EXACTLY THAT WE SHOULD NOT, BUT HE CAME OUT WITH THE POINT
THAT ON ACCOUNT OF THE PEOPLE LOSING JOBS, IF WE NOT ABLE TO WORK IN
THIS COUNTRY WE SHOULD NOT FIGHT IN THIS COUNTRY." 

THE FOLLOWING TESTIMONY CONCERNS STATEMENTS ATTRIBUTED TO KUNZE: 

"Q.  WELL, NOW, WITH PARTICULAR REFERENCE TO THE SUBJECT OF SELECTIVE
SERVICE, DID HE HAVE ANYTHING FURTHER TO SAY?  A. WELL, HE SAID ONE CAN
ALWAYS BE A CONSCIENTIOUS OBJECTOR. 

.         .         .         .         . 

"Q.  AND HE TOLD ALL OF YOU THAT HE WAS GOING TO BE A CONSCIENTIOUS
OBJECTOR?  A. I DID NOT SAY THAT HE WAS GOING TO BE BUT HE SAID THAT IT
WOULD BE WISE TO BE.  HE SAID 'YOU ALWAYS CAN BECOME A CONSCIENTIOUS
OBJECTOR.'  THAT WAS HIS WORDING. 

"Q.  THEN DO I UNDERSTAND NOW THAT MR. KUNZE NEVER SAID THAT HE WAS
GOING TO BE A CONSCIENTIOUS OBJECTOR, IS THAT SO?  A. I CANNOT RECALL
THE EXACT WORDS THAT HE SAID, BUT HE USED THAT PHRASEOLOGY OF
CONSCIENTIOUS OBJECTOR." 

AGAIN, WITH RESPECT TO A STATEMENT OF KUNZE, IT WAS TESTIFIED: 

"HE SAID THAT WE WERE DISCRIMINATED AGAINST, THE GERMAN-AMERICANS,
AND THEREFORE WE SHOULD NOT SIGN UP FOR THE SELECTIVE SERVICE DRAFT,
AND HE ALSO MEANT THAT HE WANTED TO MAKE A TEST CASE, BUT HE DID NOT
SAY WHAT KIND OF A TEST CASE  ...  I ASKED HIM WHAT WOULD HAPPEN IF I
WOULD NOT SIGN UP FOR A DRAFT....  HE SAID HE DID NOT KNOW HIMSELF, BUT
HE IS GOING TO MAKE A TEST CASE IN THE EAST, YOU SEE.  SO I ASKED HIM
WHAT I SHOULD DO.  HE SAID IT WAS UP TO THE INDIVIDUAL IF HE WANTS TO
SIGN UP FOR THE DRAFT." 

WITH RESPECT TO THE DEFENDANT STREUER, A WITNESS TESTIFIED THAT HE
"MENTIONED" THAT IF "ANYBODY HAS CHANCES TO STAY AWAY FROM IT (MILITARY
SERVICE) WHICH NATURALLY SOMETIMES HAPPENS TO SOME PEOPLE, IT IS ALL
RIGHT FOR THEM  ..."  THE SAME WITNESS TESTIFIED THAT STREUER NEVER
TOLD ANYBODY TO RESIST THE DRAFT OR NOT TO REGISTER. 

EXCEPT FOR THE SO-CALLED BACKGROUND EVIDENCE PERTAINING TO THE
GENERAL ATTITUDE AND STATE OF MIND OF THE DEFENDANTS THIS IS ALL THE
SIGNIFICANT TESTIMONY WITH RESPECT TO ANY COUNSELLING TO EVADE MILITARY
SERVICE.  IT SHOULD BE ADDED THAT PRACTICALLY EVERY WITNESS WHO
TESTIFIED TO STATEMENTS MADE AT MEETINGS, AND TO CONVERSATIONS OF THE
VARIOUS DEFENDANTS, WHEN ASKED WHETHER HE HEARD THE DEFENDANT AS TO
WHOM HE WAS TESTIFYING ADVOCATE RESISTANCE TO MILITARY SERVICE OR
EVASION OF MILITARY SERVICE, ANSWERED THAT HE HAD NEVER HEARD ANY SUCH
ADVICE GIVEN BY THE DEFENDANT IN QUESTION. 

WHEN IT IS BORNE IN MIND THAT MOST OF THE DEFENDANTS WERE SO-CALLED
UNIT LEADERS OF SMALL GROUPS SCATTERED FROM THE ATLANTIC TO THE PACIFIC
COAST, WHOSE CONTACTS WITH THE BUND AND NATIONAL OFFICERS CONSISTED IN
ATTENDING ANNUAL CONVENTIONS, READING BUND COMMANDS TO MEMBERS OF THE
UNIT, AND ATTENDING MEETINGS TO WHICH KUNZE OR OTHER NATIONAL OFFICERS
CAME, IT BECOMES PLAIN HOW LITTLE EVIDENCE THERE IS IN THE RECORD TO
CONVICT THEM OF A NATION-WIDE CONSPIRACY TO COUNSEL EVASION OF THE
DRAFT.  IN ESSENCE, THE CASE MADE BY THE GOVERNMENT AMOUNTS TO THIS:
THAT THESE MEN WERE PARTISANS OF GERMANY; WERE AGAINST OUR GOING TO WAR
WITH GERMANY, AND MIGHT BE DISPOSED, THEREFORE, TO COUNSEL EVASION OF
MILITARY SERVICE, AND WERE ALL FAMILIAR WITH BUND COMMAND NO. 37. 

THAT THE GOVERNMENT, IN THE LAST ANALYSIS, RELIED, TO MAKE ITS CASE,
UPON THE PROMULGATION OF BUND COMMAND NO. 37, AND THAT THE TRIAL JUDGE
SO UNDERSTOOD, SEEMS PLAIN FROM HIS CHARGE TO THE JURY, TO WHICH
EXCEPTION WAS TAKEN AND WHICH WAS ASSIGNED AS ERROR.  IN THAT HE SAID: 

"THERE HAVE BEEN NUMEROUS REFERENCES IN THE EVIDENCE AND IN THE
ARGUMENTS OF COUNSEL TO A TEST CASE SAID TO HAVE BEEN PROPOSED BY THE
DEFENDANTS OR SOME OF THEM TO DETERMINE THE VALIDITY OF SECTION 308(I)
OF THE SELECTIVE SERVICE AND TRAINING ACT WHICH STATES AMONGST OTHER
THINGS THAT IT IS THE POLICY OF CONGRESS THAT BUND MEMBERS BE NOT
EMPLOYED TO FILL VACANCIES CREATED BY MEN IN EMPLOYMENT BEING DRAFTED
INTO THE ARMED SERVICE.  I CHARGE YOU THAT IF YOU SHOULD BELIEVE FROM
THE EVIDENCE THAT THE DEFENDANTS, OR ANY OF THEM, PROPOSED TO TEST THIS
LAW BY CONSPIRING TO COUNSEL SOMEONE TO VIOLATE THE LAW, THEN THE FACT
THAT THEIR PURPOSE WAS TO MAKE A TEST CASE IS NO DEFENSE TO THE CHARGE
HERE PRESENTED AGAINST THEM.  I REPEAT THAT THE OFFENSE WITH WHICH
THESE DEFENDANTS ARE CHARGED IS A CONSPIRACY TO COUNSEL OTHERS TO EVADE
SERVICE IN THE ARMED FORCES OF THE UNITED STATES, AND SUCH AN OFFENSE
WOULD BE COMPLETE, IF AS A FACT THE DEFENDANTS DID UNLAWFULLY AND
KNOWINGLY CONSPIRE, COMBINE OR CONFEDERATE TOGETHER TO COUNSEL OTHERS
TO EVADE SUCH SERVICE, AND THIS IS TRUE EVEN IF DEFENDANTS HAD A BONA
FIDE HONEST INTENT TO MAKE A TEST CASE.  FOR IF THERE WAS A CONSPIRACY
AMONGST THESE DEFENDANTS, OR ANY OF THEM, HAVING AS ITS OBJECT THE
VIOLATION OF THE SELECTIVE SERVICE LAW, KNOWINGLY, THE REASON FOR SUCH
VIOLATION IS IMMATERIAL TO YOU IN YOUR CONSIDERATION OF THE QUESTION OF
THEIR GUILT OR INNOCENCE." 

HERE THE HONESTY AND THE BONA FIDES OF THE DEFENDANTS IS SAID TO BE
IMMATERIAL; THE FACT THAT THEY DESIRED TO TEST THE CONSTITUTIONALITY OF
THE LAW IS SAID TO BE IMMATERIAL.  NOWHERE IS IT STATED THAT BUND
COMMAND NO. 37, WITHOUT MORE, DOES NOT AMOUNT TO COUNSELLING TO EVADE
MILITARY SERVICE.  MINGLED WITH INSTRUCTIONS THAT INNOCENT MOTIVES WERE
NO EXCUSE, AND THE INTENTION TO TEST THE CONSTITUTIONALITY OF THE LAW
WAS NO EXCUSE, ARE STATEMENTS THAT THESE ARE NOT EXCUSES WHERE THERE IS
A CONSPIRACY KNOWINGLY TO COUNSEL EVASION OF MILITARY SERVICE.  THE
STATEMENTS ARE MUTUALLY CONTRADICTORY.  ONE WITH INNOCENT MOTIVES, WHO
HONESTLY BELIEVES A LAW IS UNCONSTITUTIONAL AND, THEREFORE, NOT
OBLIGATORY, MAY WELL COUNSEL THAT THE LAW SHALL NOT BE OBEYED; THAT ITS
COMMAND SHALL BE RESISTED UNTIL A COURT SHALL HAVE HELD IT VALID, BUT
THIS IS NOT KNOWINGLY COUNSELLING, STEALTHILY AND BY GUILE, TO EVADE
ITS COMMAND.  THUS HAVING CHARGED THAT INNOCENT MOTIVES AND A DESIRE TO
TEST THE VALIDITY OF THE LAW WERE NOT A DEFENSE, THE COURT ADDED: 

"IN REGARD TO THE MATTER OF A TEST CASE, I CALL YOUR ATTENTION TO THE
FACT THAT NO TEST CASE WAS EVER MADE, NOR IS THERE ANY EVIDENCE THAT
ANY LEGAL ACTION WAS EVER PREPARED, AND THE FURTHER FACT THAT BUND
ORDER NO. 37, BY ITS VERY LANGUAGE, OPPOSES MILITARY SERVICE UNTIL THIS
AND ALL OTHER LAWS, STATE AND NATIONAL, WHICH THE BUND CONSIDERED
DISCRIMINATORY, WERE REPEALED. 

"OF COURSE, IF YOU BELIEVE BEYOND A REASONABLE DOUBT THAT THE
DEFENDANTS, OR ANY OF THEM, KNOWINGLY AND UNLAWFULLY CONSPIRED TO
COUNSEL EVASION OF THE SELECTIVE SERVICE LAW, AND THE MATTER OF A TEST
CASE WAS MERELY A SUBTERFUGE TO DIVERT ATTENTION FROM THEIR REAL
PURPOSE, YOU SHOULD FIND SUCH DEFENDANTS GUILTY AS CHARGED." 

THIS FINAL STATEMENT SEEMS TO MEAN NOTHING SHORT OF THIS, WHEN TAKEN
IN CONNECTION WITH WHAT JUST PRECEDED IT:  IF DEFENDANTS HAD INNOCENT
MOTIVES THEY ARE NONETHELESS GUILTY; IF THEY HAD GUILTY MOTIVES THEY,
OF COURSE, ARE GUILTY.  IT IS SOMEWHAT DIFFICULT TO SEE HOW THE JURY
COULD REACH ANY OTHER THAN A VERDICT OF GUILTY. 

FROM WHAT HAS BEEN SAID ABOVE IT WILL BE SEEN THAT WE ARE OF OPINION,
FIRST, THAT THE PROMULGATION AND COMMUNICATION OF BUND COMMAND NO. 37
WAS NOT IN ITSELF A COUNSEL TO EVADE; SECOND, THAT THE EVIDENCE OF THE
GENERAL DISPOSITION OF THE PETITIONERS EITHER TOWARDS THE GOVERNMENT OF
THE UNITED STATES OR TOWARDS THE SELECTIVE SERVICE ACT DID NOT MAKE THE
COMMAND SUCH; THIRD, THAT THE EVIDENCE AND ORAL STATEMENTS OF THE
VARIOUS PETITIONERS AT COMMITTEE MEETINGS AND UNIT MEETINGS OF THE BUND
DID NOT SUPPLY THE BASIS FOR A FINDING, BEYOND A REASONABLE DOUBT, OF
COUNSELLING, OR INTENDING TO COUNSEL, OR CONSPIRING TO COUNSEL, EVASION
OF MILITARY SERVICE WITHIN THE MEANING OF SEC. 11 OF THE STATUTE.  WE
ARE OF THE VIEW, THEREFORE, THAT, ON THE CASE MADE BY THE GOVERNMENT,
THE DEFENDANTS WERE ENTITLED TO THE DIRECTION OF ACQUITTAL, FOR WHICH
THEY MOVED. 

OTHER ERRORS IN THE ADMISSION OF EVIDENCE AND IN THE CHARGE OF THE
COURT ARE ASSIGNED BY THE PETITIONERS.  THE VIEWS WE HAVE EXPRESSED
MAKE IT UNNECESSARY TO PASS UPON THESE ALLEGED ERRORS. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

MR. JUSTICE BLACK, CONCURRING. 

I WISH TO ADD A FEW WORDS EMPHASIZING CERTAIN REASONS, AMONG OTHERS,
WHICH PROMPT ME TO CONCUR IN THE COURT'S REVERSAL OF THESE JUDGMENTS ON
THE GROUND THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT CONVICTION OF
THE DEFENDANTS. 

THE PROSECUTION TRIED TO PROVE THAT THE DEFENDANTS COUNSELED THE
MEMBERS OF THE BUND TO EVADE THE SELECTICE SERVICE ACT.  ITS CASE
NECESSARILY RESTED UPON THE ASSUMPTION THAT MEMBERS OF THE BUND WERE
SUBJECT TO THE DRAFT UNDER THAT ACT.  IT FOLLOWS THAT IF BUND MEMBERS
WERE NOT LAWFULLY SUBJECT TO DRAFT UNDER THE ACT, NO PERSON COULD BE
CONVICTED FOR ADVISING BUND MEMBERS TO THIS EFFECT.  BUND COMMAND NO.
37, AN INDISPENSABLE ELEMENT IN THE GOVERNMENT'S CASE, TOOK THE
POSITION THAT BUND MEMBERS WERE NOT SUBJECT TO DRAFT BECAUSE "IN THE
SELECTIVE SERVICE LAW THE CITIZENSHIP RIGHTS OF THE BUND MEMBERS  ...
ARE UNCONSTITUTIONALLY SEVERED."  THIS SAME CRUCIAL QUESTION WAS
SEASONABLY RAISED AND URGED IN THE COURTS BELOW, AND IS ARGUED HERE. 
SINCE I THINK THE EVIDENCE INADEQUATE TO SUPPORT THE JUDGMENTS, I AM
NOT COMPELLED TO PASS ON THIS GRAVE CONSTITUTIONAL CHALLENGE. 

NEVERTHELESS, THESE DEFENDANTS' CONDUCT CANNOT FAIRLY BE APPRAISED
WITHOUT AN UNDERSTANDING OF THE STATUTORY PROVISIONS AGAINST WHICH THEY
VEHEMENTLY PROTESTED.  FOR TESTIMONY AS TO THESE PROTESTS WAS A VITAL
PART OF THE EVIDENCE AGAINST THEM - WITHOUT THAT PART OF THE EVIDENCE
THEY COULD NOT POSSIBLY HAVE BEEN CONVICTED.  IT IS NECESSARY TO
DISTINGUISH BETWEEN HONEST OBJECTIONS DIRECTED AT LEGITIMATE WRONGS,
AND SHAM PROTESTS WHICH ONLY OBSCURE THE REAL PURPOSE.  LANGUAGE AND
ACTIONS OF THESE DEFENDANTS WHICH IS CRUCIAL TO THEIR CONVICTIONS MUST
BE JUDGED IN THE LIGHT OF THE FACT THAT IT FOLLOWED PASSAGE OF THE
SELECTIVE SERVICE ACT WHICH CONTAINED THE FOLLOWING PROVISIONS. 

PROVIDES THAT PERSONS WHO HAVE BEEN DRAFTED INTO AND HONORABLY
DISCHARGED FROM MILITARY AND NAVAL SERVICE SHALL BE ACCORDED HIGH
PREFERENTIAL RIGHTS IN REGARD TO THEIR REEMPLOYMENT BY PUBLIC OR BY
PRIVATE EMPLOYERS.  CONGRESS DECLARED IN THESE SECTIONS THAT SUCH AN EX
SERVICE MAN MUST BE RESTORED TO HIS FORMER POSITION AS THOUGH HE HAD
"BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND
SERVICE IN THE LAND OR NAVAL FORCES," AND THAT HE SHOULD BE SO RESTORED
TO HIS FORMER JOB WITHOUT LOSS OF SENIORITY OR OTHER PRIVILEGES
ACCORDED REGULAR EMPLOYEES.  SECTION 308(I) OF THE ACT, HOWEVER,
DECLARED THAT 

"IT IS THE EXPRESSED POLICY OF THE CONGRESS THAT WHENEVER A VACANCY
IS CAUSED IN THE EMPLOYMENT ROLLS OF ANY BUSINESS OR INDUSTRY BY REASON
OF INDUCTION INTO THE SERVICE OF THE UNITED STATES OF AN EMPLOYEE
PURSUANT TO THE PROVISIONS OF THIS ACT SUCH VACANCY SHALL NOT BE FILLED
BY ANY PERSON WHO IS A MEMBER OF THE COMMUNIST PARTY OR THE GERMAN
AMERICAN BUND." 

AFTER THE PASSAGE OF THIS ACT, THESE DEFENDANTS FOUND THEMSELVES IN
THIS POSITION.  IT WAS ANNOUNCED THAT BUND MEMBERS WERE SUBJECT TO
DRAFT TO SERVE ON THE BATTLEFRONT WHERE THEY MIGHT BE SERIOUSLY INJURED
OR LOSE THEIR LIVES.  THEY FOUND THAT THE LAW UNDER WHICH THEY WERE
SAID TO BE SUBJECT TO DRAFT, COMMANDED EMPLOYERS TO REEMPLOY OTHER
CITIZENS WHO HAD BEEN HONORABLY DISCHARGED FROM THE SERVICE, BUT THE
SAME LAW PROVIDED THAT WHEN A BUND MEMBER CAME BACK AFTER AN HONORABLE
SERVICE, WITH AN HONORABLE DISCHARGE, NO PERSON ANYWHERE COULD GIVE HIM
REEMPLOYMENT WITHOUT VIOLATING THE EXPRESS POLICY OF CONGRESS. 

IT HAS BEEN ARGUED THAT THESE DEFENDANTS HAD NO LEGITIMATE REASON TO
PROTEST AGAINST THESE PROVISIONS BECAUSE THEY WERE OBVIOUSLY
UNCONSTITUTIONAL AND AMOUNTED TO NO MORE THAN AN ADMONITION; BUT THEY
WERE AN ADMONITION SOUNDED BY THE HIGHEST LEGISLATIVE BODY OF THE
NATION.  IT HAS ALSO BEEN SUGGESTED THAT THESE DEFENDANTS SHOULD HAVE
KNOWN BOTH THAT THE PROTESTED PROSCRIPTIVE PROVISION OF THE ACT WAS
UNCONSTITUTIONAL AND THAT COURTS WOULD SEVER IT FROM OTHER PARTS OF THE
ACT LEAVING BUND MEMBERS CONSTITUTIONALLY SUBJECT TO DRAFT.  BUT THIS
COURT HAS SAID THAT 

"THE LEGISLATURE COULD NOT THUS IMPOSE UPON LAYMEN, AT THE PERIL OF
CRIMINAL PROSECUTION, THE DUTY OF SEVERING THE STATUTORY PROVISIONS AND
OF THUS RESOLVING IMPORTANT CONSTITUTIONAL QUESTIONS WITH RESPECT TO
THE SCOPE OF A FIELD OF REGULATION AS TO WHICH EVEN COURTS ARE NOT YET
IN ACCORD."  SMITH V. CAHOON, 283 U.S. 553, 564. 

WHEN WE VIEW THE CONDUCT OF THESE DEFENDANTS IN ALL OF THIS SETTING,
THEIR VIGOROUS LANGUAGE APPEARS TO HAVE BEEN LITTLE, IF ANY, MORE
CONDEMNATORY OF THE DISCRIMINATORY SECTION OF THE SELECTIVE SERVICE ACT
THAN LANGUAGE PREVIOUSLY USED BY THIS COURT WITH REFERENCE TO
LEGISLATION OF A SIMILAR PATTERN.  THE WHOLE TONE OF THEIR PROTEST WAS
SOUNDED GRAPHICALLY BY THEIR EXPRESSION: 

"NO CIVIL RIGHTS - NO MILITARY DUTY.  DRAFT EXEMPTS BUND MEMBERS." 
CF. INGLIS V. TRUSTEES OF THE SAILORS SNUG HARBOUR, 3 PET. 99, 125,
168, 169.  AS TO LEGISLATION HAVING A SIMILAR SETTING, THIS COURT HAS
SAID: 

"...  IN THE PURSUIT OF HAPPINESS ALL AVOCATIONS, ALL HONORS, ALL
POSITIONS, ARE ALIKE OPEN TO EVERY ONE, AND  ...  IN THE PROTECTION OF
THESE RIGHTS ALL ARE EQUAL BEFORE THE LAW.  ANY DEPRIVATION OR
SUSPENSION OF ANY OF THESE RIGHTS FOR PAST CONDUCT IS PUNISHMENT, AND
CAN BE IN NO OTHERWISE DEFINED....  A BILL OF ATTAINDER IS A
LEGISLATIVE ACT WHICH INFLICTS PUNISHMENT WITHOUT A JUDICIAL TRIAL....
THESE BILLS ARE GENERALLY DIRECTED AGAINST INDIVIDUALS BY NAME; BUT
THEY MAY BE DIRECTED AGAINST A WHOLE CLASS."  CUMMINGS V. MISSOURI, 4
WALL.  277, 321-323.  SEE ALSO EX PARTE GARLAND, 4 WALL.  333. 

I CANNOT AGREE THAT THE CONVICTIONS OF THESE DEFENDANTS CAN BE
SUSTAINED ON THE BASIS OF THE EVIDENCE PRESENTED BY THE PROSECUTION,
WEIGHED ALONG WITH THAT SECTION OF THE SELECTIVE SERVICE ACT WHICH
WOULD STIGMATIZE HONORABLY DISCHARGED SOLDIERS AS UNWORTHY TO HOLD A
JOB AND EARN A LIVING. 

MR. JUSTICE RUTLEDGE. 

I CONCUR IN THE COURT'S JUDGMENT AND IN THE OPINION TO THE EFFECT
THAT THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTION.  I THINK
THAT IS TRUE WHETHER "EVADE," AS USED IN SEC. 11 OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, MEANS A SPECIES OF FRAUDULENT CONDUCT
OR WILLFUL REFUSAL OR RESISTANCE OF INDUCTION.  WITHOUT COMMAND NO. 37
THE CASE COLLAPSES.  BUT ONE SENTENCE IN IT BEARS ANY POSSIBILITY OF
CONSTRUCTION AS COUNSELING EVASION, WHETHER IN THE SENSE OF REFUSAL OR
OF ARTIFICE OR FRAUD.  THAT SENTENCE IS CONDITIONAL, NOT ABSOLUTE.  THE
WHOLE COMMAND, IN MY JUDGMENT, IS NO MORE THAN VEHEMENT PROTEST AGAINST
SEC. 8(I), SHEER POLITICAL DISCUSSION.  MORE THAN THIS IS NECESSARY. 

MR. CHIEF JUSTICE STONE, DISSENTING. 

MR. JUSTICE REED, MR. JUSTICE DOUGLAS, MR. JUSTICE JACKSON AND I
THINK THE JUDGMENT SHOULD BE AFFIRMED AS TO ALL THE PETITIONERS OTHER
THAN SCHNELLER WHO IS NOT SHOWN TO HAVE PARTICIPATED IN THE
CONSPIRACY. 

PETITIONERS WERE NATIONAL AND LOCAL LEADERS OF THE GERMAN AMERICAN
BUND, WHOSE MEMBERSHIP WAS MADE UP OF PERSONS OF GERMAN NATIONALITY OR
DESCENT.  THEY HAVE BEEN CONVICTED OF A CONSPIRACY TO VIOLATE SEC. 11
OF THE SELECTIVE SERVICE ACT OF 1940, 54 STAT. 885, WHICH IMPOSES A
CRIMINAL PENALTY ON ANY PERSON "WHO KNOWINGLY COUNSELS, AIDS, OR ABETS
ANOTHER TO EVADE REGISTRATION OR SERVICE IN THE LAND OR NAVAL FORCES." 

THE INDICTMENTS CHARGE THAT PETITIONERS AND OTHERS CONSPIRED TO
DISTRIBUTE AMONG THE MEMBERS OF THE BUND THROUGHOUT THE COUNTRY A
DOCUMENT KNOWN AS BUND ORDER NO. 37 "WHICH WOULD COUNSEL, DIRECT AND
URGE THOSE TO WHOM THE CONTENTS WERE MADE KNOWN THAT THEY SHOULD EVADE,
RESIST, AND REFUSE SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED
STATES."  ORDER NO. 37 WAS OSTENSIBLY PUBLISHED AS A PROTEST OF THE
BUND AGAINST THE ADOPTION BY CONGRESS OF SEC. 8(I) AS AN AMENDMENT TO
THE SELECTIVE SERVICE ACT, WHICH DECLARED: 

"IT IS THE EXPRESSED POLICY OF THE CONGRESS THAT WHENEVER A VACANCY
IS CAUSED IN THE EMPLOYMENT ROLLS OF ANY BUSINESS OR INDUSTRY BY REASON
OF INDUCTION INTO THE SERVICE OF THE UNITED STATES OF AN EMPLOYEE
PURSUANT TO THE PROVISIONS OF THIS ACT SUCH VACANCY SHALL NOT BE FILLED
BY ANY PERSON WHO IS A MEMBER OF THE COMMUNIST PARTY OR THE GERMAN
AMERICAN BUND." 

ORDER NO. 37 WAS PRINTED IN THE GERMAN LANGUAGE, AND AN ENGLISH
TRANSLATION OF IT WAS SUBMITTED TO THE JURY.  AFTER CALLING ATTENTION
TO THE FACT THAT ALL CITIZENS WHO HAVE NOT PASSED THEIR THIRTY-SIXTH
YEAR WERE REQUIRED BY THE SELECTIVE SERVICE ACT TO REGISTER, IT
CONTINUED, "THIS ORDER MUST BE COMPLIED WITH UNHESITATINGLY" AND
ADDED: 

"AN INDUCTION INTO THE MILITARY SERVICE IS NOT JUSTIFIED, IN AS FAR
AS IT CONCERNS BUND MEMBERS AND AMERICAN GERMANS, FOR IN THE SELECTIVE
SERVICE LAW THE CITIZENSHIP RIGHTS OF BUND MEMBERS AND THE DEFENDERS OF
GERMANDOM ARE UNCONSTITUTIONALLY SEVERED."  IT CONCLUDED: 

"EVERY MAN, IF HE CAN, WILL REFUSE TO DO MILITARY DUTY UNTIL THIS LAW
AND ALL OTHER LAWS OF THE COUNTRY OR THE STATES WHICH CONFINE THE
CITIZENSHIP RIGHTS OF BUND MEMBERS ARE REVOKED. 

"WE WILL FIGHT TO ESTABLISH A PRECEDENT IN THIS SERVILE MATTER." 

THE ONLY SUBSTANTIAL QUESTIONS FOR OUR DECISION ARE WHETHER THE JURY
COULD RIGHTLY FIND FROM THE EVIDENCE THAT BUND ORDER NO. 37 DID IN FACT
COUNSEL "ANOTHER TO EVADE REGISTRATION OR SERVICE IN THE LAND OR NAVAL
FORCES," AND WHETHER PETITIONERS' CONSPIRACY TO GIVE SUCH ADVICE WAS IN
THE CIRCUMSTANCES UNLAWFUL.  THE CONTENTIONS ARE THAT THE CONVICTION
CANNOT BE SUSTAINED BECAUSE THE ADVICE IN BUND ORDER NO. 37, THAT
"EVERY MAN IF HE CAN WILL REFUSE TO DO MILITARY DUTY" UNTIL THE LAW
OFFENSIVE TO THE BUND WAS REPEALED, CANNOT BE TAKEN TO COUNSEL THE
EVASION OF SERVICE IN THE MILITARY FORCES AND BECAUSE THE ALLEGED
CONSPIRACY WAS NOT UNLAWFUL SINCE THE BUND ORDER ONLY COUNSELLED
REFUSAL TO DO MILITARY DUTY AS A MEANS OF INITIATING A CASE TO TEST THE
VALIDITY OF SEC. 8(I) OF THE SELECTIVE SERVICE ACT, WHICH IS A LAWFUL
PURPOSE.    THERE IS ABUNDANT EVIDENCE SHOWING A CONSISTENT PURPOSE OF
THE BUND AND BUND MEMBERS TO PROMOTE IN THE UNITED STATES THE INTERESTS
OF NAZI GERMANY.  IT IS NOT DENIED, AND COULD NOT BE, THAT THERE IS
AMPLE EVIDENCE FROM WHICH THE JURY COULD HAVE FOUND THAT THE BUND
MEMBERS, AND PETITIONERS IN PARTICULAR, WERE OPPOSED TO WAR WITH
GERMANY AND HOSTILE TO THE SELECTIVE SERVICE LEGISLATION OF 1940
BECAUSE THEY WISHED TO PREVENT THE RAISING OF AN ARMY FOR A WAR AGAINST
GERMANY.  IT WAS THE THEORY OF THE GOVERNMENT, IN PRESENTING ITS CASE,
THAT RESPONDENTS SEIZED UPON THE PROPOSED LEGISLATION, WHICH BECAME
SEC. 8(I) OF THE SELECTIVE SERVICE ACT OF 1940, AS THE READY IMPLEMENT
OF PROPAGANDA AND AGITATION AMONG BUND MEMBERS AND THEIR FRIENDS, AS A
MEANS OF HINDERING AND DELAYING THE DRAFTING OF AN ARMY TO FIGHT
AGAINST GERMANY.  THE GOVERNMENT'S POSITION IS THAT BUND ORDER NO. 37,
WHICH PETITIONERS DILIGENTLY CIRCULATED AMONG BUND MEMBERS, WAS THE
PRODUCT OF THE CONSPIRACY, AND THE MEANS BY WHICH PETITIONERS
COUNSELLED MEMBERS TO EVADE SERVICE IN THE ARMED FORCES. 

IT SEEMS TO BE ADMITTED, AND INDEED IT CANNOT BE DENIED, THAT THE
EVIDENCE GIVES SUPPORT TO THE GOVERNMENT'S CONTENTION THAT PETITIONERS
HAD THE INCLINATION AND THE PURPOSE TO PERSUADE BUND MEMBERS TO
OBSTRUCT THE OPERATION OF THE SELECTIVE SERVICE ACT, AND THAT BUND
ORDER NO. 37 WAS THEIR CHOSEN MEANS TO ACCOMPLISH THAT END.  BUT IT IS
INSISTED THAT THE ADVICE TO "REFUSE TO DO MILITARY DUTY," GIVEN BY THE
DISTRIBUTION OF BUND ORDER NO. 37 AMONG BUND MEMBERS OF DRAFT AGE, WAS
NOT AN INCITEMENT TO "EVADE" MILITARY SERVICE WHICH THE STATUTE
PROSCRIBES.  APPEALING TO THE DICTIONARY AS THE ULTIMATE ARBITER OF THE
STATUTORY CONSTRUCTION, IT IS SAID THAT "EVADE" CONNOTES CONDUCT WHICH
IS FRAUDULENT OR CHARACTERIZED BY ARTIFICE OR CRAFT, AND SUGGESTS THE
IDEA OF "ESCAPING OR SLIPPING AWAY FROM" AS OPPOSED TO RESISTANCE TO OR
REFUSAL TO DO MILITARY DUTY, WHICH THE BUND ORDER COUNSELLED. 

IF THE MEANING WHICH THE DICTIONARY ASCRIBES TO A WORD STANDING IN
ISOLATION IS TO BE DEEMED CONTROLLING IN THE CONSTRUCTION OF A STATUTE
IN WHICH THE WORD APPEARS, IT WOULD SEEM TO BE OF SOME IMPORTANCE TO
REFER TO THE LATIN DERIVATION OF THE WORD "EVADE" AS MEANING TO GO OR
PROCEED AWAY FROM, AND TO ITS MODERN USAGE, ALSO RECOGNIZED BY THE
DICTIONARIES, AS THE SYNONYM OF "AVOID," OR "ESCAPE" BY EFFORT OR BY
FORCE OR BY ANY OTHER MEANS, AS WELL AS BY ARTIFICE, CRAFT OR
DEXTERITY.  FN1  AS THE DRAFTSMEN OF STATUTES DO NOT USUALLY LIMIT THE
APPLICATION OF THE CHOSEN WORD TO ONLY SOME OF ITS COMMON MEANINGS
WITHOUT INDICATING THEIR PURPOSE TO DO SO, THE WORD, READ IN ITS
CONTEXT IN THE STATUTE, IS FAR MORE REVEALING OF THE LEGISLATIVE
PURPOSE THAN THE ARBITRARY SELECTION OF ONE OF ITS DICTIONARY MEANINGS
TO THE EXCLUSION OF OTHERS WHICH ARE EQUALLY APPLICABLE. 

HERE THE STATUTE SHOWS ON ITS FACE THAT THE WORD "EVADE" IS USED IN
SEC. 11 AS MEANING AVOIDANCE OF OR ESCAPE FROM MILITARY SERVICE EITHER
BY THE FAILURE OR THE REFUSAL TO PERFORM A DUTY WHICH WOULD OTHERWISE
RESULT IN THE PERFORMANCE OF THE SERVICE, OR BY MEANS OF FRAUD, CRAFT,
OR ARTIFICE, IN MEETING THE REQUIREMENTS OF THE SELECTIVE SERVICE ACT. 
WITH THE DUTY OF CARRYING OUT ANY OF THE PROVISIONS OF THIS ACT  ...
WHO SHALL KNOWINGLY FAIL OR NEGLECT TO PERFORM SUCH DUTY."  BUT IT ALSO
IMPOSES PENALTIES UPON ANY SUCH PERSON "WHO SHALL KNOWINGLY MAKE, OR BE
A PARTY TO THE MAKING, OF ANY FALSE, IMPROPER, OR INCORRECT
REGISTRATION, CLASSIFICATION  ...  AND ANY PERSON WHO SHALL KNOWINGLY
MAKE, OR BE A PARTY TO THE MAKING OF, ANY FALSE STATEMENT OR
CERTIFICATE  ..."  IT THEN PROVIDES FOR A LIKE APPLICATION OF THE ACT
TO ANY PERSON "WHO OTHERWISE EVADES REGISTRATION OR SERVICE IN THE LAND
OR NAVAL FORCES OR ANY OF THE REQUIREMENTS OF THIS ACT, OR WHO
KNOWINGLY COUNSELS, AIDS, OR ABETS ANOTHER TO EVADE REGISTRATION OR
SERVICE IN THE LAND OR NAVAL FORCES OR ANY OF THE REQUIREMENTS OF THIS
ACT." 

THE IMPLICATION FROM THE USE OF THE PHRASE "OTHERWISE EVADES" IS
PLAIN THAT THE ACTS OF OMISSION OR REFUSAL TO PERFORM THE PRESCRIBED
DUTY AND ACTS OF OSTENSIBLE PERFORMANCE BY FALSE STATEMENTS AND THE
LIKE ARE EQUALLY RECOGNIZED BY THE STATUTE AS MODES OF EVASION OF
MILITARY SERVICE OR OF OTHER REQUIREMENTS OF THE ACT.  IT IS THUS CLEAR
THAT THE PHRASE "OTHERWISE EVADES" WAS INTENDED TO INCLUDE BOTH TYPES
OF EVASION WHETHER EFFECTED BY BREACHES OF DUTY OR BY FALSE, FRAUDULENT
AND DECEPTIVE ACTS, EITHER OF WHICH, IF SUCCESSFUL, WOULD RESULT IN
AVOIDANCE OF OR ESCAPE FROM MILITARY SERVICE.  IN ADDITION TO ALL THESE
MODES OF EVASION SEC. 11 PENALIZES ONE WHO OTHERWISE (BY ANY OTHER
MODE) EVADES (AVOIDS) SERVICE.  THUS, ON THE FACE OF THE STATUTE THERE
IS NO BASIS FOR SAYING THAT RESPONDENTS CAN ELUDE ITS PENALTIES BECAUSE
THEY COUNSELLED BUND MEMBERS TO EVADE, I.E., ESCAPE OR AVOID, MILITARY
SERVICE BY REFUSING TO PERFORM MILITARY DUTY RATHER THAN BY FALSE
STATEMENTS, ARTIFICES, OR STRATAGEM.  THERE IS NO OCCASION FOR GIVING
THE WORD "EVADE," AS USED IN THE STATUTE, A MORE STRAINED OR A NARROWER
MEANING THAN IS RECOGNIZED IN ITS CONTEXT IN SEC. 11, WHICH IS ALSO
IDENTICAL WITH THE DICTIONARY DEFINITIONS. 

SUCH LEGISLATIVE HISTORY AS THERE IS SUPPORTS THIS CONCLUSION. 
SENATOR BURKE, ONE OF THE AUTHORS OF THE BILL WHICH BECAME THE
SELECTIVE SERVICE ACT OF 1940, AT THE HEARINGS ON THE BILL BEFORE THE
SENATE COMMITTEE ON MILITARY AFFAIRS, STATED THAT THE PROVISION OF SEC.
11 PROHIBITING THE COUNSELLING OF EVASION, APPLIED "WHERE ONE URGED
ANOTHER NOT TO SEEK REPEAL OF THE LAW BUT TO REFUSE TO OBEY IT WHILE IT
REMAINED THE LAW."  HEARINGS, SENATE COMMITTEE ON MILITARY AFFAIRS,
76TH CONG., 3RD SESS., P. 156.  SECTION 11 WAS DERIVED FROM SEC. 6 OF
THE SELECTIVE DRAFT ACT OF 1917, 40 STAT. 80, WHICH PENALIZED ANY
PERSON WHO "EVADES OR AIDS ANOTHER TO EVADE THE REQUIREMENTS OF THIS
ACT."  IN FRAINA V. UNITED STATES, 255 F. 28, FRAINA WAS INDICTED UNDER
SECS. 37 AND 332 OF THE CRIMINAL CODE AND OF SEC. 6 OF THE SELECTIVE
SERVICE ACT OF 1917 FOR CONSPIRACY WITH OTHERS TO "COUNSEL  ...  INDUCE
...  DIVERS PERSONS  ...  TO EVADE  ...  THE REQUIREMENTS OF" THE
SELECTIVE SERVICE ACT.  THE COURT AFFIRMED A CONVICTION WHERE THE JURY
FOUND THAT THE ACCUSED MADE A SPEECH IN ORDER TO COUNSEL AND INDUCE
CERTAIN "CONSCIENTIOUS OBJECTORS" "TO REFUSE TO BE BOUND, OR REFUSE TO
ACT OR ACCEPT THE LAW, AND REFUSE TO DO THEIR DUTY WHICH IS REQUIRED BY
THIS LAW."  THUS, BEFORE THE ADOPTION OF THE PRESENT SELECTIVE SERVICE
ACT, IT WAS JUDICIALLY DETERMINED THAT ONE WHO REFUSES TO COMPLY WITH
THE REQUIREMENTS OF THE LAW "EVADES" THE LAW, AND THAT ONE WHO COUNSELS
ANOTHER TO REFUSE TO ACCEPT THE LAW OR TO DO HIS DUTY WHICH IS REQUIRED
BY THE LAW CAN BE FOUND GUILTY OF INDUCING HIM TO EVADE IT.  WE MUST
TAKE IT THAT CONGRESS, IN ADOPTING THE TERM "EVADE" FROM SEC. 6 OF THE
EARLIER DRAFT ACT, AND USING IT IN LIKE CONTEXT IN SEC. 11 OF THE 1940
ACT, ADOPTED AND CONFIRMED THE JUDICIAL CONSTRUCTION OF THE TERM AS IT
APPEARED IN THE 1917 ACT.  SESSIONS V. ROMADKA, 145 U.S. 29, 41-42;
MANHATTAN PROPERTIES V. IRVING TRUST CO., 291 U.S. 320, 336; UNITED
STATES V. ELGIN, J. & E.R. CO., 298 U.S. 492, 500; MISSOURI V. ROSS,
299 U.S. 72, 75; ELECTRIC BATTERY CO. V. SHIMADZU, 307 U.S. 5, 14. 

THE CONCLUSION SEEMS INESCAPABLE THAT PETITIONERS, BY COUNSELLING
BUND MEMBERS TO REFUSE TO DO MILITARY DUTY, COUNSELLED EVASION OF
MILITARY SERVICE, AND THAT THE JURY'S VERDICT OF VIOLATION OF SEC. 11
IS THEREFORE SUSTAINED BY THE EVIDENCE.  THIS IS NOT ANY THE LESS SO
BECAUSE THE BUND ORDER COUNSELLED MEMBERS OF THE BUND TO REFUSE TO DO
MILITARY SERVICE UNTIL SEC. 8(I) WAS REPEALED.  BUND ORDER NO. 37 WAS
PUBLISHED AND DISTRIBUTED BY PETITIONERS AFTER THE ENACTMENT OF SEC.
8(I) OF THE ACT.  ITS COUNSEL THEREFORE WAS TO VIOLATE THE STATUTE BY
EVADING MILITARY SERVICE, NOTWITHSTANDING THE ORDER'S SUGGESTION THAT
THE REFUSAL TO DO MILITARY DUTY MIGHT CEASE WHENEVER REPEAL OCCURRED. 

THE TRIAL JUDGE INSTRUCTED THE JURY, RIGHTLY WE THINK, THAT "BONA
FIDE HONEST INTENT TO MAKE A TEST CASE IS NO DEFENSE," SAYING:  "IF
THERE WAS A CONSPIRACY AMONGST THESE DEFENDANTS, OR ANY OF THEM, HAVING
AS ITS OBJECT THE VIOLATION OF THE SELECTIVE SERVICE LAW, KNOWINGLY,
THE REASON FOR SUCH VIOLATION IS IMMATERIAL TO YOU IN YOUR
CONSIDERATION OF THE QUESTION OF THEIR GUILT OR INNOCENCE."  PLAINLY
ONE WHO WOULD ASSAIL THE VALIDITY OF A STATUTE IN A TEST CASE CAN DO SO
ONLY BY VIOLATING ITS PROVISIONS, HERE BY KNOWINGLY COUNSELLING ANOTHER
TO EVADE REGISTRATION OR SERVICE IN THE ARMED FORCES.  ONE WHO THUS
EVADED OR COUNSELLED EVASION OF MILITARY SERVICE COULD NOT DEFEND ON
THE GROUND THAT HE VIOLATED THE ACT IN ORDER TO TEST ITS
CONSTITUTIONALITY.  HE NEVERTHELESS DOES THE ACT WHICH THE STATUTE
PROHIBITS AND NONETHELESS INTENDED TO DO IT EVEN THOUGH HIS PURPOSE WAS
TO ESTABLISH THAT THE STATUTORY PROHIBITION IS UNCONSTITUTIONAL.  THERE
IS NO FREEDOM TO CONSPIRE TO VIOLATE A STATUTE WITH IMPUNITY MERELY
BECAUSE ITS CONSTITUTIONALITY IS DOUBTED.  THE PROHIBITION OF THE
STATUTE IS INFRINGED BY THE INTENDED ACT IN ANY CASE, AND THE LAW
IMPOSES ITS SANCTIONS UNLESS THE DOUBT PROVES TO BE WELL FOUNDED. 

HERE PETITIONERS LAID NO FOUNDATION FOR ASSAILING THE VALIDITY OF
SEC. 11 BY REASON OF THEIR DOUBTS OF THE CONSTITUTIONALITY OF SEC.
8(I).  NO ONE CAN URGE THE UNCONSTITUTIONALITY OF A STATUTE UNTIL HE
SHOWS THAT IT IS APPLICABLE TO HIM AND THAT HE IS INJURED BY IT.  MARYE
V. PARSONS, 114 U.S. 325; TYLER V. THE JUDGES, 179 U.S. 405; COLLINS V.
TEXAS, 223 U.S. 288; ROBERTS & SCHAEFER CO. V. EMMERSON, 271 U.S. 50,
54, 55; UTAH POWER CO. V. PFOST, 286 U.S. 165; ASHWANDER V. TENNESSEE
VALLEY AUTHORITY, 297 U.S. 288, 324; VOELLER V. NEILSTON CO., 311 U.S.
531, 537; ALABAMA STATE FEDERATION OF LABOR V. MCADORY, ANTE, P. 450. 
PETITIONERS INTRODUCED NO EVIDENCE.  IT DOES NOT APPEAR THAT ANY OF
THEM EVER GAVE UP ANY EMPLOYMENT BECAUSE OF THEIR INDUCTION INTO THE
SERVICE OF THE UNITED STATES PURSUANT TO THE SELECTIVE SERVICE ACT, OR
THAT THEY WERE EVER REFUSED OR THREATENED WITH REFUSAL OF ANY
EMPLOYMENT BECAUSE OF THEIR MEMBERSHIP IN THE BUND OR THE COMMUNIST
PARTY.  AND EVEN THOUGH SEC. 8(I) WERE TO BE DEEMED UNCONSTITUTIONAL AS
APPLIED TO PETITIONERS, THAT WOULD NOT AFFECT THE CONSTITUTIONALITY OF
SEC. 11 OR RELIEVE PETITIONERS FROM THE CONSEQUENCES OF THEIR VIOLATION
OF SEC. 11.  FOR SEC. 14(B) OF THE ACT PROVIDES "IF ANY PROVISION OF
THIS ACT, OR THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCE, IS
HELD INVALID, THE REMAINDER OF THE ACT, AND THE APPLICATION OF SUCH
PROVISION TO OTHER PERSONS OR CIRCUMSTANCES, SHALL NOT BE AFFECTED
THEREBY." 

THE DOCTRINE OF PEOPLE V. POWELL, 63 N.Y. 88, ON WHICH PETITIONERS
RELY, THAT A CRIMINAL CONSPIRACY TO DO AN ACT "INNOCENT IN ITSELF" NOT
KNOWN BY THE CONSPIRATORS TO BE PROHIBITED MUST BE ACTUATED BY SOME
CORRUPT MOTIVE OTHER THAN THE INTENTION TO DO THE ACT WHICH IS
PROHIBITED AND WHICH IS THE OBJECT OF THE CONSPIRACY, HAS NEVER BEEN
ACCEPTED BY THIS COURT.  TO ESTABLISH VIOLATION OF SEC. 11 NOTHING MORE
NEED BE PROVED THAN THAT RESPONDENTS HAD IN CONTEMPLATION ALL THE
ELEMENTS OF THE OFFENSE WHICH THEY CONSPIRED TO COMMIT.  UNITED STATES
V. MACK, 112 F.2D 290, 292; CF. HAMBURG-AMERICAN STEAM PACKET CO. V.
UNITED STATES, 250 F. 747, 759; CHADWICK V. UNITED STATES, 141 F. 225,
243.  THERE IS NO CONTENTION THAT PETITIONERS DID NOT KNOW THAT THE
SELECTIVE SERVICE ACT REQUIRED THOSE SUBJECT TO IT TO DO MILITARY
SERVICE.  AND PEOPLE V. POWELL, SUPRA, WAS CAREFUL TO POINT OUT THAT
WHERE THE CONSPIRACY IS TO DO AN ACT WHICH IS NOT "INNOCENT IN ITSELF"
THE OFFENSE IS "COMPLETE WHEN THE ACT IS INTENTIONALLY DONE,"
IRRESPECTIVE OF ANY ACTUAL INTENTION TO VIOLATE THE LAW.  HERE THE ACT
PROHIBITED WAS HARDLY "INNOCENT IN ITSELF."  THE FACTS FOUND BY THE
JURY UNDER INSTRUCTIONS OF THE COURT CONSTITUTE PLAIN VIOLATION OF SEC.
11, AND THE JURY'S VERDICT IS SUPPORTED BY THE EVIDENCE. 

FN1  THE FOLLOWING ARE DICTIONARY DEFINITIONS OF THE WORD "EVADE":
FUNK & WAGNALLS:  "TO AVOID BY ARTIFICE; ELUDE OR GET AWAY FROM BY
CRAFT OR FORCE; SAVE ONESELF FROM, AS AN IMPENDING EVIL; AS, TO EVADE
AN ARGUMENT OR A CRISIS."  WEBSTER:  "TO ESCAPE; TO SLIP AWAY  ...  TO
GET AWAY FROM BY ARTIFICE; TO AVOID BY DEXTERITY, SUBTERFUGE OR
INGENUITY  ...  TO ESCAPE OR AVOID, OFTEN BY THE USE OF SKILL,
DEXTERITY, OR CONTRIVANCE."  OXFORD:  "TO ESCAPE BY CONTRIVANCE OR
ARTIFICE FROM ...  TO AVOID, SAVE ONESELF FROM  ...  TO ELUDE.  NONCE
USE:  'GO OUT OF.  OPPOSED TO INVADE.'"  CENTURY:  "TO AVOID BY EFFORT
OR CONTRIVANCE; ESCAPE FROM OR ELUDE IN ANY WAY, AS BY DEXTERITY,
ARTIFICE, STRATAGEM OR ADDRESS; SLIP AWAY FROM; GET OUT OF THE WAY OF
...  TO ESCAPE; SLIP AWAY." 
..END :






NORTH CAROLINA V. UNITED STATES, 325 U.S. 507 


ARGUED APRIL 23, 24, 1945.  - DECIDED JUNE 11, 1945.  - 56 F.SUPP.  606,
REVERSED. 


1.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, UNDER SEC. 13(4)
OF THE INTERSTATE COMMERCE ACT, AUTHORIZED RAILROADS IN NORTH CAROLINA
TO ESTABLISH AND MAINTAIN INTRASTATE PASSENGER COACH FARES AT LEVELS
NOT LOWER THAN INTERSTATE FARES, WHICH IN EFFECT INCREASED THE STATE
PRESCRIBED BASIC FARE OF 1.65 CENTS PER MILE TO THE INTERSTATE LEVEL OF
2.2 CENTS PER MILE.  HELD THAT THE ORDER WAS NOT BASED ON ADEQUATE
FINDINGS SUPPORTED BY EVIDENCE, AND THAT THE DISTRICT COURT SHOULD HAVE
ENJOINED ITS ENFORCEMENT.  PP. 509, 520. 

2.  THE INTERSTATE COMMERCE COMMISSION IS EMPOWERED TO NULLIFY A
STATE-PRESCRIBED INTRASTATE RATE ONLY WHEN THE COMMISSION, AFTER FULL
HEARING, FINDS THAT SUCH RATE CAUSES (1) UNDUE OR UNREASONABLE
ADVANTAGE, PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS OR LOCALITIES IN
INTRASTATE COMMERCE ON THE ONE HAND AND INTERSTATE COMMERCE ON THE
OTHER, OR (2) UNDUE, UNREASONABLE, OR UNJUST DISCRIMINATION AGAINST
INTERSTATE COMMERCE; AND THE COMMISSION IS WITHOUT AUTHORITY TO SET
ASIDE A STATE-PRESCRIBED INTRASTATE RATE UNLESS THERE ARE CLEAR
FINDINGS, SUPPORTED BY EVIDENCE, OF EACH ELEMENT ESSENTIAL TO ITS
EXERCISE OF THAT POWER.  PP. 510, 511. 

3.  A MERE FINDING THAT INTERSTATE PASSENGERS PAID HIGHER FARES THAN
INTRASTATE PASSENGERS FOR THE SAME SERVICE DOES NOT ADEQUATELY SUPPORT
A STATEWIDE ORDER NULLIFYING A STATE-PRESCRIBED RATE AS UNDULY
PREJUDICIAL TO INTERSTATE PASSENGERS AND REQUIRING ALL INTRASTATE
PASSENGERS TO PAY THE HIGHER INTRASTATE RATE.  PP. 512, 514. 

4.  THE FINDINGS OF THE COMMISSION THAT THE 2.2 CENTS INTERSTATE RATE
WAS JUST AND REASONABLE; THAT THE SAME TRAINS IN GENERAL CARRIED BOTH
INTERSTATE AND INTRASTATE PASSENGERS; AND THAT THE RAILROADS AFFECTED
WOULD HAVE RECEIVED $525,000 MORE ANNUAL INCOME FROM THE PASSENGERS
THEY CARRIED HAD THE 2.2 CENTS RATE BEEN APPLIED, DID NOT SUPPORT THE
CONCLUSION THAT THE INTRASTATE TRAFFIC WAS NOT CONTRIBUTING ITS FAIR
SHARE OF THE REVENUE REQUIRED TO ENABLE THE RAILROADS TO RENDER
ADEQUATE AND EFFICIENT TRANSPORTATION SERVICE, AND DID NOT SUPPORT THE
ORDER ON THE GROUND THAT THE INTRASTATE RATES DISCRIMINATED AGAINST
INTERSTATE COMMERCE.  P. 514. 

5.  THE POWER OF THE COMMISSION TO REQUIRE A STATE TO RAISE
INTRASTATE RATES DEPENDS ON WHETHER THE INTRASTATE TRAFFIC IS
CONTRIBUTING ITS FAIR SHARE OF THE EARNINGS REQUIRED TO MEET
MAINTENANCE AND OPERATING COSTS AND TO YIELD A FAIR RETURN ON THE VALUE
OF PROPERTY DIRECTED TO THE TRANSPORTATION SERVICE, BOTH INTERSTATE AND
INTRASTATE.  P. 520. 

6.  THE COMMISSION CAN NOT REQUIRE INTRASTATE RATES TO BE RAISED
ABOVE A REASONABLE LEVEL.  P. 520. 

7.  WHERE, AS HERE, THERE IS EVIDENCE FROM WHICH THE COMMISSION COULD
HAVE FOUND THAT A RATE OF 2.2 CENTS WAS FAR ABOVE A REASONABLE RATE
LEVEL FOR THE INTRASTATE COACH TRAFFIC OF THE RAILROADS, THE COMMISSION
MUST MAKE FINDINGS ON THAT ISSUE, WHICH FINDINGS ARE SUPPORTED BY
EVIDENCE, BEFORE ENTERING AN ORDER SUPPLANTING THE STATE AUTHORITY. 
WITHOUT SUCH FINDINGS SUPPORTED BY EVIDENCE, THE COMMISSION WAS NOT
AUTHORIZED TO FIND THAT THE INTRASTATE RATES DISCRIMINATED AGAINST
INTERSTATE COMMERCE.  P. 520. 

NORTH CAROLINA ET AL. V. UNITED STATES ET AL. 

NO. 560.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
EASTERN DISTRICT OF NORTH CAROLINA* . 

*TOGETHER WITH NO. 561, DAVIS, ECONOMIC STABILIZATION DIRECTOR, BY
BOWLES, PRICE ADMINISTRATOR, V. UNITED STATES ET AL., ALSO ON APPEAL
FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT
OF NORTH CAROLINA. 

APPEALS FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DENYING AN
INJUNCTION AND DISMISSING THE COMPLAINT IN A SUIT TO ENJOIN AND SET
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE NORTH CAROLINA STATE UTILITIES COMMISSION BROUGHT SUIT TO ENJOIN
ENFORCEMENT OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.  258
I.C.C. 133.  THE FEDERAL ECONOMIC STABILIZATION DIRECTOR ACTING THROUGH
THE PRICE ADMINISTRATOR SOUGHT AND WAS GRANTED THE RIGHT TO INTERVENE
AS A PARTY PLAINTIFF.  A FEDERAL DISTRICT COURT OF THREE JUDGES DENIED
THE INJUNCTION, 56 F.SUPP.  606, AND THE CASE IS HERE ON DIRECT APPEAL
UNDER SEC. 210 OF THE JUDICIAL CODE. 

THIS CLASH BETWEEN STATE AND FEDERAL AGENCIES CAME ABOUT BECAUSE THE
STATE COMMISSION AND THE INTERSTATE COMMERCE COMMISSION EACH CLAIMED
THE PARAMOUNT POWER TO FIX RAILROAD RATES IN NORTH CAROLINA.  THE NORTH
CAROLINA COMMISSION ORDERED RAILROADS DOING BUSINESS IN THE STATE TO
CHARGE NO MORE THAN 1.65 CENTS PER MILE FOR CARRYING INTRASTATE COACH
PASSENGERS FROM ONE POINT IN THE STATE TO ANOTHER.  DESPITE THIS STATE
COMMISSION ORDER, THE INTERSTATE COMMERCE COMMISSION AUTHORIZED THE
SAME RAILROADS TO CHARGE 2.2 CENTS PER MILE FOR THE SAME TYPE OF
CARRIAGE.  FN1 

THE INTERSTATE COMMERCE COMMISSION ASSERTED ITS POWER TO PRESCRIBE
THESE PURELY INTRASTATE RATES UNDER SEC. 13(4) OF THE INTERSTATE
COMMERCE ACT.  49 U.S.C. SEC. 13(4).  THAT SECTION, WHICH IS SET FORTH
BELOW,  FN2  EMPOWERS THE INTERSTATE COMMERCE COMMISSION TO PRESCRIBE
INTRASTATE RAILROAD RATES UNDER CERTAIN CONDITIONS, DESPITE CONFLICTING
STATE ORDERS AS TO THE SAME RATES.  THE CONDITIONS THAT CONGRESS
IMPOSED AS A PREREQUISITE TO COMMISSION ACTION ARE THAT THE COMMISSION
SHALL HOLD A "FULL HEARING" AND FIND THAT THE STATE-PRESCRIBED RATES
EITHER CAUSED (1) UNDUE OR UNREASONABLE ADVANTAGE, PREFERENCE, OR
PREJUDICE, AS BETWEEN PERSONS OR LOCALITIES IN INTRASTATE COMMERCE ON
THE ONE HAND, AND INTERSTATE COMMERCE ON THE OTHER HAND, OR (2) UNDUE,
UNREASONABLE, OR UNJUST DISCRIMINATION AGAINST INTERSTATE COMMERCE. 
THE COMMISSION HELD HEARINGS WHICH ARE CHALLENGED ON VARIOUS GROUNDS AS
FALLING SHORT OF "FULL" HEARINGS.  IT MADE FINDINGS AND CONCLUDED THAT
THE 1.65 STATE RATE WAS UNDULY PREJUDICIAL TO INTERSTATE PASSENGERS,
AND THAT THE STATE RATE CONSTITUTED AN UNDUE AND UNJUST DISCRIMINATION
AGAINST INTERSTATE COMMERCE.  THESE CONCLUSIONS ARE ATTACKED ON THE
GROUND THAT THEY ARE SUPPORTED NEITHER BY FINDINGS NOR EVIDENCE.  THE
CRUCIAL QUESTION INVOLVED IN ALL THESE CONTENTIONS IS WHETHER THE
INDISPENSABLE PREREQUISITES TO THE EXERCISE OF THE FEDERAL COMMISSION'S
POWER OVER INTRASTATE RATES HAVE BEEN SHOWN TO EXIST WITH SUFFICIENT
CERTAINTY.  BEFORE MAKING ANY DETAILED REFERENCE TO THE HEARINGS,
FINDINGS OR EVIDENCE, IT WOULD BE HELPFUL TO SET OUT CERTAIN GUIDING
PRINCIPLES WHICH LEAD US TO A RESOLUTION OF THE CRUCIAL QUESTION. 

INTERSTATE TRANSPORTATION AS SUCH.  AS TO INTERSTATE REGULATION, THE
COMMISSION IS GRANTED THE BROADEST POWERS TO PRESCRIBE RATES AND OTHER
TRANSPORTATION DETAILS.  SEE UNITED STATES V. PENNSYLVANIA R. CO., 323
U.S. 612.  NO SUCH BREADTH OF AUTHORITY IS GRANTED TO THE COMMISSION
OVER PURELY INTRASTATE RATES.  NEITHER SEC. 13(4), NOR ANY OTHER
CONGRESSIONAL LEGISLATION, INDICATES A PURPOSE TO ATTEMPT WHOLLY TO
DEPRIVE THE STATES OF THEIR PRIMARY AUTHORITY TO REGULATE INTRASTATE
RATES.  SINCE THE ENACTMENT OF SEC. 13(4), AS BEFORE ITS ENACTMENT, A
STATE'S POWER OVER INTRASTATE RATES IS EXCLUSIVE UP TO THE POINT WHERE
ITS ACTION WOULD BRING ABOUT THE PREJUDICE OR DISCRIMINATION PROHIBITED
BY THAT SECTION.  WHEN THIS POINT - NOT ALWAYS EASY TO MARK - IS
REACHED, AND NOT UNTIL THEN, CAN THE INTERSTATE COMMERCE COMMISSION
NULLIFY A STATE-PRESCRIBED RATE. 

INTRASTATE TRANSPORTATION IS PRIMARILY THE CONCERN OF THE STATE.  THE
POWER OF THE INTERSTATE COMMERCE COMMISSION WITH REFERENCE TO SUCH
INTRASTATE RATES IS DOMINANT ONLY SO FAR AS NECESSARY TO ALTER RATES
WHICH INJURIOUSLY AFFECT INTERSTATE TRANSPORTATION.  AMERICAN EXPRESS
CO. V. SOUTH DAKOTA, 244 U.S. 617, 625.  A SCRUPULOUS REGARD FOR
MAINTAINING THE POWER OF THE STATE IN THIS FIELD HAS CAUSED THIS COURT
TO REQUIRE THAT INTERSTATE COMMERCE COMMISSION ORDERS GIVING PRECEDENCE
TO FEDERAL RATES MUST MEET "A HIGH STANDARD OF CERTAINTY."  ILLINOIS
CENTRAL R. CO. V. PUBLIC UTILITIES COMMISSION, 245 U.S. 493, 510. 
BEFORE THE COMMISSION CAN NULLIFY A STATE RATE, JUSTIFICATION FOR THE
"EXERCISE OF THE FEDERAL POWER MUST CLEARLY APPEAR."  FLORIDA V. UNITED
STATES, 282 U.S. 194, 211-212.  SEE ALSO YONKERS V. UNITED STATES, 320
U.S. 685.  AND THE INTENTION TO INTERFERE WITH THE STATE'S RATE-MAKING
FUNCTION IS NOT TO BE PRESUMED, ARKANSAS COMMISSION V. CHICAGO, R.I. &
P.R. CO., 274 U.S. 597, 603; NOR MUST ITS INTENTION IN THIS RESPECT BE
LEFT IN SERIOUS DOUBT.  ILLINOIS COMMERCE COMM'N V. THOMSON, 318 U.S.
675, 684-685.  THE FOREGOING CASES ALSO STAND FOR THE PRINCIPLE THAT
THE INTERSTATE COMMERCE COMMISSION IS WITHOUT AUTHORITY TO SUPPLANT A
STATE-PRESCRIBED INTRASTATE RATE UNLESS THERE ARE CLEAR FINDINGS,
SUPPORTED BY EVIDENCE, OF EACH ELEMENT ESSENTIAL TO THE EXERCISE OF
THAT POWER BY THE COMMISSION.  WE SHALL NOW TAKE UP THE TWO GROUNDS
UPON WHICH THE COMMISSION SET ASIDE THE STATE ORDER. 

PREJUDICE AGAINST INTERSTATE PASSENGERS.  ON THIS ASPECT OF THE CASE
THE COMMISSION'S FINDINGS WERE THAT THE INTERSTATE 2.2 CENTS RATE WAS
JUST AND REASONABLE; THAT THE ACCOMMODATIONS AFFORDED INTERSTATE AND
INTRASTATE PASSENGERS IN NORTH CAROLINA WERE "SUBSTANTIALLY SIMILAR";
THAT IN GENERAL THESE PASSENGERS TRAVELED IN THE SAME TRAINS AND IN THE
SAME CARS; AND FROM THESE, IT CONCLUDED THAT SINCE INTERSTATE
PASSENGERS WERE FORCED TO PAY HIGHER FARES THAN INTRASTATE PASSENGERS,
THERE WAS AN UNDUE AND UNREASONABLE DISADVANTAGE AND PREJUDICE OF
INTERSTATE PASSENGERS.  ON THESE FINDINGS IT ISSUED THE STATEWIDE ORDER
REQUIRING ALL INTRASTATE PASSENGERS TO PAY 2.2 CENTS PER MILE.  WE
THINK THESE FINDINGS FAILED TO GIVE ADEQUATE SUPPORT TO THE ORDER. 

IN EFFECT, THE COMMISSION'S HOLDING WAS, AND ITS ARGUMENT IS HERE,
THAT SEC. 13(4) AUTOMATICALLY REQUIRES COMPLETE UNIFORMITY IN
INTRASTATE AND INTERSTATE RATES.  THAT ARGUMENT IS IN SHORT THAT UNDER
OUR NATIONAL TRANSPORTATION SYSTEM INTERSTATE TRAVELERS AND INTRASTATE
TRAVELERS USE THE SAME TRAINS; FOR A STATE TO FIX A LOWER INTRASTATE
RATE THAN THE INTERSTATE RATE IS THEREFORE AN UNDUE ADVANTAGE TO THE
INTRASTATE PASSENGERS AND AN UNFAIR DISCRIMINATION AGAINST THE
INTERSTATE PASSENGERS.  IF CONGRESS INTENDED TO PERMIT SUCH AN
OVERSIMPLIFIED FORM OF PROOF TO ESTABLISH "UNJUST DISCRIMINATION," THEN
ITS REQUIREMENT OF A "FULL HEARING" WAS MERE SURPLUSAGE.  IN FACT, IT
NEED HAVE PROVIDED FOR NO HEARING AT ALL SINCE IT COULD HAVE EASILY
STATED IN ITS LEGISLATION THAT INTRASTATE RATES SHALL NEVER BE LOWER
THAN INTERSTATE RATES.  THE ARGUMENT OF THE COMMISSION IN THIS REGARD
RUNS COUNTER TO THE LANGUAGE OF SEC. 13(4), AND WOULD CALL FOR A
DECLARATION BY US THAT CONGRESS INTENDED BY THIS SECTION TO REVERSE THE
ENTIRE TRANSPORTATION HISTORY OF THE NATION.  THE CLAUSE ABOUT
"PERSONS" AND "LOCALITIES" IS, AS THE LEGISLATIVE HISTORY SHOWS, A
PRACTICAL ENACTMENT INTO LAW OF A DECISION OF THIS COURT IN THE
"SHREVEPORT" CASE.  FN3  HOUSTON, E. & W.T.R. CO. V. UNITED STATES, 234
U.S. 342.  IN THE "SHREVEPORT" CASE THE COMMISSION FOUND FROM EVIDENCE
THAT CERTAIN TEXAS INTRASTATE RATES TO TEXAS POINTS WERE FAR BELOW THE
INTERSTATE RATES CHARGED TO CARRY THE SAME TYPES OF FREIGHT FROM
SHREVEPORT, LOUISIANA.  THE DISTANCES AND CONDITIONS OF BOTH
TRANSPORTATIONS WERE FOUND TO BE SUBSTANTIALLY THE SAME.  THE COURT
SUSTAINED THE COMMISSION'S CONCLUSION THAT THE TEXAS INTRASTATE RATES
CONSTITUTED AN UNFAIR DISCRIMINATION AGAINST SHREVEPORT AND PERSONS
DOING BUSINESS THERE.  THE COMMISSION'S ORDER WAS NOT STATEWIDE, BUT
ONLY REQUIRED REMOVAL OF THE DISCRIMINATION AGAINST THE PARTICULAR
LOCALITIES AND BUSINESS GROUPS AFFECTED BY THE DISCRIMINATION. 

IN RAILROAD COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S. 563, 579,
580, THIS COURT REFUSED TO SUSTAIN A COMMISSION ORDER NULLIFYING ALL
STATE PASSENGER RATES BECAUSE OF A DISCRIMINATION AGAINST INTERSTATE
TRAVELERS AND AGAINST LOCALITIES.  THE COMMISSION HAD FOUND THERE AS
HERE THAT STATE AND INTERSTATE PASSENGERS RODE ON THE SAME TRAINS IN
THE SAME CAR AND PERHAPS IN THE SAME SEATS.  IT HAD FOUND THERE, AS IT
DID HERE, THAT THIS CONSTITUTED AN UNDUE DISCRIMINATION AGAINST
INTERSTATE PASSENGERS, AND IT ISSUED A GENERAL SWEEPING ORDER AGAINST
ALL INTRASTATE PASSENGER RATES.  THIS COURT POINTED OUT THAT THE ORDER
WENT FAR BEYOND THE PRINCIPLES ANNOUNCED IN THE SHREVEPORT CASE, AND
DECLINED TO SUSTAIN THE STATEWIDE ORDER ON THIS PHASE OF THE CASE.  SEE
ALSO FLORIDA V. UNITED STATES, 282 U.S. 194, 208.  SO HERE, THE FINDING
THAT INTERSTATE PASSENGERS PAID HIGHER FARES THAN INTRASTATE PASSENGERS
FOR THE SAME FACILITIES IS AN INADEQUATE SUPPORT FOR NULLIFYING STATE
RATES ON THE GROUND THAT THEY CONSTITUTE UNJUST DISCRIMINATION AGAINST
INTERSTATE PASSENGERS. 

DISCRIMINATION AGAINST INTERSTATE COMMERCE.  ONE GROUND OF THE
COMMISSION'S ORDER WAS THAT THE INTRASTATE RATES DISCRIMINATED AGAINST
INTERSTATE COMMERCE AS SUCH.  THE FINDINGS OF THE COMMISSION ON WHICH
THIS CONCLUSION RESTED WERE THAT THE 2.2 CENTS INTERSTATE RATE WAS JUST
AND REASONABLE; THE SAME TRAINS IN GENERAL CARRIED BOTH INTERSTATE AND
INTRASTATE PASSENGERS; THE NORTH CAROLINA RAILROADS TO WHICH THE
INTRASTATE RATES WERE APPLIED, WOULD HAVE RECEIVED $525,000 MORE ANNUAL
INCOME FROM THE PASSENGERS THEY CARRIED HAD THE 2.2 CENTS INTERSTATE
RATE BEEN APPLIED; FROM THIS THE CONCLUSION WAS REACHED THAT INTRASTATE
TRAFFIC WAS "NOT CONTRIBUTING ITS FAIR SHARE OF THE REVENUE REQUIRED TO
ENABLE RESPONDENTS TO RENDER ADEQUATE AND EFFICIENT TRANSPORTATION
SERVICE." 

THIS CONCLUSION OF THE COMMISSION, IF BASED ON FINDINGS SUPPORTED BY
EVIDENCE, WOULD JUSTIFY ITS ORDER.  FOR IN FLORIDA V. UNITED STATES,
292 U.S. 1, 5, WE SAID THAT SEC. 13(4) AUTHORIZED THE COMMISSION "TO
RAISE INTRASTATE RATES SO THAT THE INTRASTATE TRAFFIC MAY PRODUCE ITS
FAIR SHARE OF THE EARNINGS REQUIRED TO MEET MAINTENANCE AND OPERATING
COSTS AND TO YIELD A FAIR RETURN ON THE VALUE OF PROPERTY DEVOTED TO
THE TRANSPORTATION SERVICE, BOTH INTERSTATE AND INTRASTATE."  WE
SUSTAINED THE COMMISSION'S ORDER THERE BECAUSE IT WAS BASED ON FINDINGS
SUPPORTED BY EVIDENCE THAT THE INTRASTATE RATE "WAS ABNORMALLY LOW AND
LESS THAN REASONABLY COMPENSATORY  ... 'INSUFFICIENT UNDER ALL THE
CIRCUMSTANCES AND CONDITIONS TO COVER THE FULL COST OF THE SERVICE.'" 
NEITHER IN ITS FORMAL FINDINGS NOR IN ITS DISCUSSION OF THE FACTS DID
THE COMMISSION INDICATE THAT THE NORTH CAROLINA RAILROAD RATES HERE
INVOLVED WERE LESS THAN COMPENSATORY OR INSUFFICIENT TO COVER THE FULL
COST OF SERVICE.  NOR DID THEY FIND THAT MAINTENANCE OF THESE RATES WAS
NECESSARY TO THE OPERATION OF A NATIONALLY EFFICIENT AND ADEQUATE
RAILWAY SYSTEM.  FN4 

BUT THE QUESTION POSED BY THE COMMISSION'S CONCLUSION WAS WHETHER THE
PARTICULAR NORTH CAROLINA RAILROADS WERE OBTAINING FROM NORTH
CAROLINA'S INTRASTATE PASSENGER RATES THEIR FAIR PART OF SUCH FUNDS AS
WERE REQUIRED TO ENABLE THESE PARTICULAR RAILROADS TO RENDER ADEQUATE
AND EFFICIENT SERVICE.  THE COMMISSION MADE NO FINDINGS AS TO WHAT
CONTRIBUTION FROM INTRASTATE TRAFFIC WOULD CONSTITUTE A FAIR PROPORTION
OF THE RAILROAD'S TOTAL INCOME.  IT MADE NO FINDING AS TO WHAT AMOUNT
OF REVENUE WAS REQUIRED TO ENABLE THESE RAILROADS TO OPERATE
EFFICIENTLY.  INSTEAD, IT RELIED ON THE MERE EXISTENCE OF A DISPARITY
BETWEEN WHAT IT SAID WAS A REASONABLE INTERSTATE RATE AND THE
INTRASTATE RATE FIXED BY NORTH CAROLINA.  IT THOUGHT THIS ACTION WAS
JUSTIFIED BY THIS COURT'S OPINION IN ILLINOIS COMMERCE COMM'N V. UNITED
STATES, 292 U.S. 474, 485.  FN5  ASIDE FROM THE FACT THAT "THE MERE
EXISTENCE OF A DISPARITY BETWEEN PARTICULAR RATES ON INTRASTATE AND
INTERSTATE TRAFFIC DOES NOT WARRANT THE COMMISSION IN PRESCRIBING
INTRASTATE RATES," FLORIDA V. UNITED STATES, 282 U.S. 194, 211-212;
UTAH EDIBLE LIVESTOCK RATES AND CHARGES, 206 I.C.C. 309, THERE IS
REASONABLE DOUBT AS TO WHETHER THE COMMISSION HAD EVER FIXED 2.2 CENTS
AS THE ONLY REASONABLE INTERSTATE RATE. 

THE WHOLE ARGUMENT THAT IT HAD DONE SO RESTS PRIMARILY ON AN ORDER
MADE IN 1936.  AT THAT TIME, THE COMMISSION MADE A COMPREHENSIVE
INVESTIGATION OF RATES THROUGHOUT THE NATION, AND AFTER ELABORATE
DISCUSSION MADE FINDINGS OF FACT.  IT CONCLUDED THAT ANY RATE OVER 2
CENTS PER PASSENGER MILE WOULD BE UNREASONABLE AND UNLAWFUL.  BUT IT
ALSO DECLARED THAT A RATE OF 1.5 CENTS THEN COMMONLY CHARGED THROUGHOUT
THE SOUTHERN STATES, WOULD NOT BE "UNREASONABLE OR OTHERWISE
UNLAWFUL."  214 I.C.C. 174, 257.  RAILROADS IN THE SOUTH CONTINUED TO
CHARGE 1.5 CENTS MOST OF THE TIME FROM THEN UNTIL 1942.  MARCH 2, 1942,
UPON AN APPLICATION OF THE AMERICAN RAILROADS, THE COMMISSION IN EX
PARTE 148, GRANTED A GENERAL 10% INCREASE ON ALL RATES THEN IN
EXISTENCE.  THIS INCREASE IT FOUND WAS NECESSARY TO ENABLE THE
RAILROADS "TO CONTINUE TO RENDER ADEQUATE AND EFFICIENT RAILWAY
TRANSPORTATION SERVICE DURING THE PRESENT EMERGENCY."  248 I.C.C. 545,
565.  THE COMMISSION SPECIFICALLY STATED, P. 606, THAT ITS CONCLUSION
WAS NOT BASED ON "INDIVIDUAL, SECTIONAL, OR PARTICULAR INDUSTRIAL
DESIRES OR NEEDS."  FOUR MONTHS LATER, ON JULY 14, 1942, CERTAIN
RAILROADS OPERATING IN THE SOUTH, INCLUDING THE RAILROADS INVOLVED IN
THE NORTH CAROLINA CASE, FILED A PETITION WITH THE COMMISSION ASKING
THAT IT MODIFY ITS 1936 ORDER, SO AS TO PERMIT THEM TO CHARGE 2.2 CENTS
PER MILE.  TWO WEEKS LATER, WITHOUT A HEARING, WITHOUT EVIDENCE, AND
WITHOUT DISCUSSION, THE COMMISSION ENTERED AN ORDER DECLINING TO AMEND
ITS 1936 ORDER, BUT MODIFYING ITS 10% RATE INCREASE ORDER, "SO AS TO
AUTHORIZE" THE PETITIONING RAILROADS TO CHARGE 2.2 CENTS PER MILE.  IT
MADE NO FINDING THAT THE RAILROADS NEEDED THIS INCREASE IN ORDER TO
MAINTAIN ADEQUATE RAILROAD SYSTEMS AND OF COURSE COULD NOT HAVE DONE SO
UNLESS IT RELIED UPON THE OLD 1936 EVIDENCE.  THERE WAS NO ISSUE OF
THIS NATURE RAISED BY ANY OF THE PARTIES IN THE 10% RATE INCREASE
PROCEEDINGS.  NEITHER BEFORE NOR SINCE THESE SOUTHERN RAILROADS WERE
AUTHORIZED BY THE COMMISSION TO INCREASE THEIR INTERSTATE RATE TO 2.2
CENTS HAS ANY HEARING BEEN HELD ON THE SUBJECT.  PETITION OF NORTH
CAROLINA FOR A HEARING WAS DENIED.  NOR HAS THERE BEEN ANY FINDING
BASED ON EVIDENCE THAT THE 1.65 CENTS RATE WHICH THE COMMISSION FOUND
ADEQUATE, AND NEITHER "UNREASONABLE NOR UNLAWFUL," HAS CEASED TO BE
SUCH.  WE ARE UNABLE TO FIND FROM ANY OF THE VARIOUS ORDERS THAT THE
COMMISSION HAS EVER YET MADE FINDINGS SUPPORTED BY EVIDENCE AND UPON
THEM SET ASIDE ITS 1936 CONCLUSIONS THAT A 1.5 CENTS RATE FOR SOUTHERN
TERRITORY WAS REASONABLE AND LAWFUL, EXCEPT TO THE EXTENT THAT IT HELD
THAT A 10% INCREASE WAS JUSTIFIABLE. 

FURTHERMORE, EVEN ASSUMING THAT THE COMMISSION HAD PREVIOUSLY MADE A
VALID 2.2 CENTS PER MILE GENERAL ORDER BROADLY APPLICABLE TO ALL
RAILROADS IN THE SOUTHERN TERRITORY OR THROUGHOUT THE NATION, IT DOES
NOT FOLLOW THAT SUCH A GENERAL ORDER MUST PERMANENTLY STAND AS TO EACH
AND EVERY SEPARATE RAILROAD OR RAILROAD SYSTEM.  THE VERY NATURE OF
SUCH A BROAD GENERAL ORDER REQUIRES THAT IT CONTAIN A SAVING CLAUSE FOR
FUTURE MODIFICATION AND ADJUSTMENT OF PARTICULAR RATES.  THIS COURT
DECLARED THAT SUCH A SAVING CLAUSE WAS ESSENTIAL EVEN AT THE TIME THAT
ALL SURPLUS RAILROAD PROFITS WERE POOLED FOR THE COMMON GOOD OF THE
NATIONAL SYSTEM.  RAILROAD COMMISSION V. CHICAGO, B. & Q.R. CO., 257
U.S. 563, 579; GEORGIA COMMISSION V. UNITED STATES, 283 U.S. 765, 772;
UNITED STATES V. LOUISIANA, 290 U.S. 70, 76, 77, 79. 

SUCH A SAVING CLAUSE LEFT TO THE STATE ITS POWER TO BRING ABOUT
PARTICULAR CHANGES IN THE INTERNAL INTRASTATE RATE STRUCTURE NECESSARY
TO KEEP INTRASTATE REVENUES AS A CLASS IN HARMONY WITH INTERSTATE
NEEDS.  RAILROAD COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S. 563,
580.  FOR THE INTERSTATE COMMERCE COMMISSION WAS "WITHOUT JURISDICTION
OVER INTRASTATE RATES EXCEPT TO PROTECT AND MAKE EFFECTIVE SOME
REGULATION OF INTERSTATE COMMERCE."  ILLINOIS COMMERCE COMM'N V.
THOMSON, 318 U.S. 675, 684.  CONSEQUENTLY, NO ONE BUT THE STATE HAD
POWER TO READJUST ITS INTERNAL INTRASTATE RATE STRUCTURE.  THIS IT
UNDERTOOK TO DO BY A HEARING FOCUSSED UPON THE STATE RAILROADS
INDIVIDUALLY AND COLLECTIVELY.  FOUR RAILROADS WERE DENIED THE
INCREASE, AND THEY ARE THE ONLY ONES NOW AFFECTED BY THE INTERSTATE
COMMERCE COMMISSION ORDER.  OTHER ROADS WERE GRANTED THE INCREASE.  ITS
ORDER TO THIS EFFECT RESTED ON EVIDENCE AS TO THE DIFFERING QUALITIES
OF INTRASTATE AND INTERSTATE ACCOMMODATIONS AFFORDED AS WELL AS THE NET
REVENUES OF DIFFERENT ROADS.  THE STATE COMMISSION FOUND AS TO THE FOUR
ROADS WHICH IT DENIED AN INCREASE THAT THEIR PROFITS FROM PASSENGER
REVENUES EVEN ON A 1.65 CENTS RATE WERE SO GREAT THAT CONTINUANCE OF
THAT RATE WOULD BE REASONABLE AND JUST TO THEM. 

IN THE PROCEEDINGS BEFORE THE INTERSTATE COMMERCE COMMISSION, THE
STATE AND THE PRICE ADMINISTRATOR PRESENTED THESE ISSUES WHICH THE
STATE COMMISSION HAD CONSIDERED.  BOTH THE RAILROADS AND THEIR
ADVERSARIES OFFERED EVIDENCE ON THE POINTS.  THERE WAS EVIDENCE THAT
THE FOUR RAILROADS WERE CARRYING MORE PASSENGERS AND MORE FREIGHT, AND
WERE MORE PROSPEROUS THAN THEY HAD EVER BEEN IN THEIR HISTORY.  THIS
EVIDENCE SHOWED THAT THEY WERE IN THE HIGHEST EXCESS PROFIT TAX
BRACKETS, AND THAT SOMEWHERE BETWEEN 80 AND 90% OF ALL THEIR PROFITS
WERE SUBJECT TO BE PAID FOR FEDERAL TAXES. 

THERE WAS EVIDENCE OFFERED BY THE RAILROADS, WHICH INDICATED THAT
THEIR 1942 PER MILE NET COST OF CARRYING COACH PASSENGERS WAS UNDER OR
ABOUT 1 CENT.  THE COMMISSION HAD FOUND FACTS IN THE 1936 REPORT, 214
I.C.C. AT PP. 216, 266, WHICH INDICATED A MILEAGE COACH PASSENGER COST
OF 3.25 CENTS.  EVIDENCE OF THE FOUR RAILROADS ALSO SHOWED THEIR
AVERAGE REVENUE INCREASE SINCE 1936 HAD BEEN APPROXIMATELY 250%.  THIS
GREAT REVENUE INCREASE TRANSFORMED A 1936 $16,426.00 DEFICIT OF SIX
NORTH CAROLINA ROADS, INCLUDING THE FOUR HERE INVOLVED, INTO A 1942
$26,699,988.00 PROFIT.  MOST OF THIS INCREASED PROFIT WAS SHOWN TO HAVE
BEEN DERIVED FROM PASSENGER REVENUES. 

ALL OF THIS EVIDENCE AND MUCH MORE TO WHICH WE MIGHT ADVERT WAS
SUFFICIENT TO SHOW THAT THE COMMISSION MIGHT HAVE FOUND, HAD IT MADE
ANY FINDINGS ON THE SUBJECT AT ALL, THAT A 1.65 CENTS RATE FOR THESE
FOUR NORTH CAROLINA RAILROADS WOULD HAVE BEEN A FAIR COACH PASSENGER
CONTRIBUTION TO REVENUES REQUIRED TO ENABLE THEM TO OPERATE PROFITABLY
AND EFFICIENTLY.  BUT IT MADE NO FINDINGS ON THIS SUBJECT AT ALL.  THE
PURPOSE OF THE NATIONAL TRANSPORTATION LAW IS TO ASSURE RAILROADS A
FAIR NET OPERATING INCOME AND NO MORE.  DAYTON-GOOSE CREEK R. CO. V.
UNITED STATES, 263 U.S. 456.  THE POWER OF THE COMMISSION TO REQUIRE
STATES TO RAISE THEIR INTRASTATE RATES DEPENDS UPON WHETHER INTRASTATE
TRAFFIC IS CONTRIBUTING ITS FAIR SHARE OF THE EARNINGS REQUIRED TO MEET
MAINTENANCE AND OPERATING COSTS AND TO YIELD A FAIR RETURN ON THE VALUE
OF PROPERTY DIRECTED TO THE TRANSPORTATION SERVICE BOTH INTERSTATE AND
INTRASTATE.  UNITED STATES V. LOUISIANA, 290 U.S. 70, 75.  BUT THE
COMMISSION CANNOT "REQUIRE INTRASTATE RATES TO BE RAISED ABOVE A
REASONABLE LEVEL."  UNITED STATES V. LOUISIANA, SUPRA, 78.  AND WHERE
THERE IS EVIDENCE AS HERE FROM WHICH THE COMMISSION COULD HAVE FOUND
THAT A RATE OF 2.2 CENTS WAS FAR ABOVE A REASONABLE RATE LEVEL FOR THE
INTRASTATE COACH TRAFFIC OF THESE FOUR RAILROADS, THE COMMISSION MUST
MAKE FINDINGS ON THAT ISSUE, WHICH FINDINGS ARE SUPPORTED BY EVIDENCE,
BEFORE ENTERING AN ORDER SUPPLANTING THE STATE AUTHORITY.  WITHOUT SUCH
FINDINGS SUPPORTED BY EVIDENCE, THE COMMISSION WAS NOT AUTHORIZED TO
FIND THAT THE INTRASTATE RATES DISCRIMINATED AGAINST INTERSTATE
COMMERCE. 

BECAUSE THE ORDER OF THE COMMISSION WAS NOT BASED ON ADEQUATE
FINDINGS, SUPPORTED BY EVIDENCE, THE DISTRICT COURT SHOULD HAVE
DECLINED TO ENFORCE ITS ORDER.  THE JUDGMENT OF THE DISTRICT COURT IS
REVERSED. 

FN1  THERE IS A CORRESPONDING CONFLICT WHICH INVOLVES ROUND TRIP
COACH RATES.  THE QUESTIONS PRESENTED ARE THE SAME WITH REGARD TO ONE
WAY AND ROUND TRIP RATES, AND WE SHALL THEREFORE CONSIDER BOTH OF THEM
BY REFERENCE TO THE ONE WAY RATE. 

FN2  "WHENEVER IN ANY SUCH INVESTIGATION THE COMMISSION, AFTER FULL
HEARING, FINDS THAT ANY SUCH RATE, FARE, CHARGE, CLASSIFICATION,
REGULATION, OR PRACTICE CAUSES ANY UNDUE OR UNREASONABLE ADVANTAGE,
PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS OR LOCALITIES IN INTRASTATE
COMMERCE ON THE ONE HAND AND INTERSTATE OR FOREIGN COMMERCE ON THE
OTHER HAND, OR ANY UNDUE, UNREASONABLE, OR UNJUST DISCRIMINATION
AGAINST INTERSTATE OR FOREIGN COMMERCE, WHICH IS HEREBY FORBIDDEN AND
DECLARED TO BE UNLAWFUL, IT SHALL PRESCRIBE THE RATE, FARE, OR CHARGE,
OR THE MAXIMUM OR MINIMUM, OR MAXIMUM AND MINIMUM, THEREAFTER TO BE
CHARGED, AND THE CLASSIFICATION, REGULATION, OR PRACTICE THEREAFTER TO
BE OBSERVED, IN SUCH MANNER AS, IT ITS JUDGMENT, WILL REMOVE SUCH
ADVANTAGE, PREFERENCE, PREJUDICE, OR DISCRIMINATION.  SUCH RATES,
FARES, CHARGES, CLASSIFICATIONS, REGULATIONS, AND PRACTICES SHALL BE
OBSERVED WHILE IN EFFECT BY THE CARRIERS PARTIES TO SUCH PROCEEDING
AFFECTED THEREBY, THE LAW OF ANY STATE OR THE DECISION OR ORDER OF ANY
STATE AUTHORITY TO THE CONTRARY NOTWITHSTANDING."  49 U.S.C. SEC.
13(4). 

FN3  THE HOUSE COMMITTEE REPORTING THIS BILL SAID WITH REFERENCE TO
THE PROVISIONS OF SEC. 13(4):  "AFTER SUCH HEARING THE COMMISSION SHALL
MAKE SUCH FINDINGS AND ORDERS AS MAY IN ITS JUDGMENT TEND TO REMOVE ANY
UNDUE ADVANTAGE, PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS OR
LOCALITIES IN STATE AND INTERSTATE OR FOREIGN COMMERCE.  THE PROVISION
PRACTICALLY ENACTS INTO LAW THE DECISION OF THE SUPREME COURT IN THE SO
CALLED 'SHREVEPORT' CASE.  ANY UNDUE BURDEN UPON INTERSTATE OR FOREIGN
COMMERCE IS FORBIDDEN AND DECLARED TO BE UNLAWFUL.  IT IS BELIEVED THAT
THE PROVISIONS OF THIS SECTION WILL HAVE A BENEFICIAL AND HARMONIZING
EFFECT, AND WILL TEND TO REDUCE THE NUMBER OF SO-CALLED 'SHREVEPORT'
CASES, WHILE AT THE SAME TIME RECOGNIZING THE REGULATORY BODIES OF THE
SEVERAL STATES."  REPORT NO. 456, 66TH CONG., 1ST SESS., P. 20. 

FN4  IN RAILROAD COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S. 563,
THIS COURT SUSTAINED A STATEWIDE COMMISSION ORDER RAISING INTRASTATE
RATES.  SECTION 13(4) IN THE CONTEXT OF THE 1920 TRANSPORTATION ACT, 41
STAT. 456, AS IT THEN EXISTED, WAS CONSTRUED AS REQUIRING THE
COMMISSION TO PRESCRIBE RATES SUFFICIENT "TO ENABLE THE CARRIERS AS A
WHOLE, OR IN GROUPS SELECTED BY THE COMMISSION, TO EARN AN AGGREGATE
ANNUAL NET RAILWAY OPERATING INCOME EQUAL TO A FAIR RETURN ON THE
AGGREGATE VALUE OF THE RAILWAY PROPERTY USED IN TRANSPORTATION."  584
585.  THE 1920 ACT, HOWEVER, TREATED THE NATIONAL RAILWAY SYSTEM AS A
UNIT.  THE NET RETURNS FOR ANY PARTICULAR RAILROAD WERE LIMITED BY THE
ACT.  ALL ABOVE THIS LIMITATION WENT INTO A COMMON POOL TO BE
DISTRIBUTED FOR THE USE OF WEAK RAILROADS.  IN THIS WAY, ALL RAILWAY
INCOME INURED TO THE BENEFIT OF ALL THE RAILROADS INDIVIDUALLY AND
COLLECTIVELY TO AID IN "MAINTAINING AN ADEQUATE RAILWAY SYSTEM."  THIS
COURT HAS SAID THAT CONGRESS ADOPTED THE POOLING PROVISIONS BECAUSE "IT
WAS NOT CLEAR THAT THE PEOPLE WOULD TOLERATE GREATLY INCREASED RATE
(ALTHOUGH NO HIGHER THAN NECESSARY TO PRODUCE THE REQUIRED REVENUES OF
WEAK LINES) IF THEREBY PROSPEROUS COMPETITORS EARNED AN UNREASONABLY
LARGE RETURN UPON THE VALUE OF THEIR PROPERTIES."  NEW ENGLAND
DIVISIONS CASE, 261 U.S. 184, 191.  BUT CONGRESS IN 1933, 48 STAT. 211,
REPEALED THIS PART OF THE 1920 ACT; THE INCOME POOLING SYSTEM WAS
ABANDONED; THE RULE OF RATE MAKING WAS RE-WRITTEN, AND WHILE THE
COMMISSION WAS TO GIVE CONSIDERATION TO THE NEED OF ADEQUATE AND
EFFICIENT RAILWAY TRANSPORTATION SERVICE AT THE LOWEST COST CONSISTENT
WITH THE FURNISHING OF SUCH SERVICE, AND TO THE NEED OF REVENUE
SUFFICIENT TO ENABLE THE CARRIERS UNDER HONEST, ECONOMICAL AND
EFFICIENT MANAGEMENT TO PROVIDE SUCH SERVICE, THE RATES WERE NO LONGER
TO BE TREATED ON A NATIONAL BASIS AS THOUGH ALL RAILROADS CONSTITUTED
ONE SYSTEM.  HOUSE REPORT NO. 193, 73RD CONG., 1ST SESS., PP. 30-31. 
RAILROADS WERE TO BE TREATED ON AN INDIVIDUAL BASIS.  ABANDONMENT OF
THE PROFIT POOLING SYSTEM MADE THIS NECESSARY TO CARRY OUT THE
CONTINUING CONGRESSIONAL PURPOSE TO PREVENT "AN UNREASONABLY LARGE
RETURN UPON THE VALUE OF THEIR PROPERTIES."  THE COMMISSION RECOGNIZED
THIS LEGISLATIVE CHANGE IN RATE-MAKING POLICIES BY ITS REFERENCE TO
"REVENUES REQUIRED TO ENABLE RESPONDENTS TO RENDER ADEQUATE AND
EFFICIENT TRANSPORTATION SERVICE."  THE "RESPONDENTS" REFERRED TO WERE
THE INDIVIDUAL RAILROADS TO WHICH NORTH CAROLINA'S ORDER APPLIED. 

FN5  THIS CASE DID NOT INVOLVE A SWEEPING STATEWIDE ORDER BASED ON
GENERAL RAILROAD REVENUE NEEDS.  IT RELATED TO A PROBLEM LIKE THAT
CONSIDERED IN THE SHREVEPORT CASE.  THE RATES INVOLVED APPLIED TO
SWITCHING MOVEMENTS IN A SINGLE "SWITCHING DISTRICT," "ESSENTIALLY A
UNIT, SO FAR AS SWITCHING MOVEMENTS ARE CONCERNED."  THIS COURT'S
HOLDING IN THAT CASE DOES NOT SUPPORT THE STATEWIDE ORDER HERE. 

MR. JUSTICE REED, DISSENTING. 

THE COURT HAS SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION WHICH WAS ENTERED MAY 8, 1944, ON A COMMISSION REPORT OF THE
PRECEDING MARCH 25TH.  258 I.C.C. 133.  THE ORDER COVERED
INVESTIGATIONS INSTITUTED UPON SEPARATE PETITIONS OF CARRIERS IN NORTH
CAROLINA, KENTUCKY, ALABAMA AND TENNESSEE TO DETERMINE WHETHER THE
MAINTENANCE OF INTRASTATE FARES IN THESE STATES AT LEVELS BELOW FARES
AND CHARGES ESTABLISHED FOR APPLICATION TO INTERSTATE TRAFFIC IN
RESPECTIVE STATES ON OCTOBER 1, 1942, CAUSED UNDUE OR UNREASONABLE
ADVANTAGE, PREJUDICE OR PREFERENCE BETWEEN PERSONS OR LOCALITIES IN
INTRASTATE COMMERCE ON THE ONE HAND, AND INTERSTATE COMMERCE ON THE
OTHER, OR ANY SUCH DISCRIMINATION AGAINST INTERSTATE COMMERCE.  49
U.S.C. SEC. 13(4).  THE PETITIONS SOUGHT, TOO, PRESCRIPTION OF FARES
AND CHARGES BY THE COMMISSION TO REMOVE ANY PREFERENCE, ADVANTAGE,
PREJUDICE OR DISCRIMINATION FOUND TO EXIST.  SEE ALSO ALABAMA V. UNITED
STATES AND DAVIS V. UNITED STATES, POST, P. 535.  THIS DISSENT IS
APPLICABLE BOTH TO THIS AND THAT OPINION. 

WITHOUT SUMMARIZING THE ENTIRE REPORT WE CALL ATTENTION TO A FINDING
WHICH IT CONTAINS THAT TRAFFIC MOVING UNDER THESE LOWER INTRASTATE
FARES IS NOT CONTRIBUTING ITS FAIR SHARE OF THE REVENUES REQUIRED TO
ENABLE APPELLEES (THE INTERSTATE CARRIERS) TO RENDER ADEQUATE AND
EFFICIENT TRANSPORTATION SERVICE AND THAT THIS "UNLAWFULNESS SHOULD BE
REMOVED BY INCREASING" THE INTRASTATE FARES TO THE LEVEL OF THE
INTERSTATE FARES.  258 I.C.C. 154, 155, FINDINGS 5 AND 6.  THIS
FINDING, IF SUPPORTED BY EVIDENCE, IS IN OUR OPINION SUFFICIENT TO
JUSTIFY THE APPLICABLE ORDER OF MAY 8TH WHICH IS UNDER REVIEW IN THIS
APPEAL.  THAT ORDER REQUIRED THE CARRIERS TO MAINTAIN AND APPLY
INTRASTATE FARES ON BASES NO LOWER THAN THOSE APPLIED BY THE CARRIERS
IN INTERSTATE TRANSPORTATION TO, FROM AND THROUGH THE FOUR STATES. 
THE INTERSTATE COMMERCE COMMISSION HAS THE POWER TO MAKE THIS ORDER ON
A VALID FINDING OF SUCH DISCRIMINATION AGAINST INTERSTATE COMMERCE.  49
U.S.C. SEC. 13(4).  IT HAS LONG BEEN ESTABLISHED THAT THIS SECTION
DELEGATES A VALID POWER OF REGULATION OF INTRASTATE RATES TO THE
COMMISSION.  RAILROAD COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S.
563.  CF. MINNESOTA RATE CASES, 230 U.S. 352, 432, AND HOUSTON, E. &
W.T.R. CO. V. UNITED STATES (THE SHREVEPORT CASE), 234 U.S. 342, 351. 
IT GIVES AUTHORITY TO THE COMMISSION TO RAISE INTRASTATE RATES SO THAT
THAT TRAFFIC MAY PRODUCE ITS FAIR SHARE OF THE REQUIRED EARNINGS. 
UNITED STATES V. LOUISIANA, 290 U.S. 70, 75.  AND THAT AUTHORITY DOES
NOT DEPEND UPON THE RECAPTURE, IN WHOLE OR IN PART, OF EXCESS EARNING
OF INDIVIDUAL RAILROADS UNDER THE REQUIREMENTS OF THE TRANSPORTATION
ACT OF 1920, 41 STAT. 488, SEC. 15A, NOW REPEALED, EMERGENCY RAILROAD
TRANSPORTATION ACT, 1933, 48 STAT. 220, SEC. 205, FOR CREATION OF A
GENERAL RAILROAD CONTINGENT FUND FOR FINANCING THE NATIONAL
TRANSPORTATION SYSTEM OF RAILWAYS.  SECTION 13(4) WAS NOT CHANGED BY
THE ACT OF 1933.  THIS SECTION IN CONJUNCTION WITH THE REVISED AND
REENACTED SEC. 15A OF THE INTERSTATE COMMERCE ACT NOW EMPOWERS THE
COMMISSION, IN ACCORDANCE WITH THE STATUTORY PROVISIONS, TO REMOVE THE
DISCRIMINATION AGAINST INTERSTATE COMMERCE BY PRESCRIBING INTRASTATE
FARES.  FN1  FLORIDA V. UNITED STATES, 292 U.S. 1, 4, FIRST.  CF.
ILLINOIS COMMERCE COMM'N V. THOMSON, 318 U.S. 675, 682.  THIS COURT
TODAY RECOGNIZES THIS RULE.  THE FOUR STATES ATTACK THE FINDING OF
DISCRIMINATION AGAINST INTERSTATE COMMERCE, WHICH FINDING IS ESSENTIAL
TO THE VALIDITY OF THE PRESENT ORDER TO MAINTAIN INTRASTATE FARES AT
THE LEVEL OF INTERSTATE FARES, ON THE GROUND THAT THERE IS NEITHER
FINDING NOR EVIDENCE THAT THE INTRASTATE RATES ARE NOT PRODUCING A
PROPER PROPORTION OF THE CARRIERS' NEEDED REVENUE.  THIS COURT SUSTAINS
THE ATTACK AS SUFFICIENT TO INVALIDATE THE COMMISSION ORDER.  WE THINK
THE ARGUMENT, WHICH THE COURT HAS SUSTAINED, HAS ITS SOURCE IN A
MISCONCEPTION OF THE PURPOSE OF THIS PRESENT PROCEEDING. 

THE PETITIONS WERE FILED BY THE CARRIERS, THE INVESTIGATION WAS MADE
AND THE ORDER UNDER DISPUTE HERE WAS ENTERED TO COORDINATE THE
INTRASTATE PASSENGER FARES IN THESE FOUR STATES WITH THE PASSENGER FARE
STRUCTURE OF THE ENTIRE COUNTRY.  258 I.C.C. 133.  THERE HAD BEEN A
NUMBER OF RECENT PROCEEDINGS INVOLVING THE NATIONAL STRUCTURE.  THE
EVIDENCE, WHICH WILL BE REFERRED TO LATER, PRESENTED IN THOSE
PROCEEDINGS IS, WE THINK, PROPERLY TO BE CONSIDERED IN THIS
INVESTIGATION AND THE POWER OF THE COMMISSION TO REQUIRE INTRASTATE
FARES TO CONFORM TO INTERSTATE FARES IN THE FOUR STATES IS TO BE
APPRAISED IN THE LIGHT OF A PURPOSE TO ESTABLISH A NATIONAL PASSENGER
RATE STRUCTURE.  THE COURT APPARENTLY ACCEPTS AS A PREMISE THE
CONTENTION OF THE STATES THAT THE PRESENT PROCEEDING IS AN ISOLATED
INVESTIGATION BY THE COMMISSION INTO AN APPLICATION BY THE RESPECTIVE
CARRIERS IN THE FOUR STATES TO HAVE THEIR INTRASTATE FARES RAISED TO
THE LEVEL OF THEIR INTERSTATE FARES BECAUSE THE INTRASTATE EARNINGS
WERE BELOW A FAIR PROPORTION OF THE CARRIERS' TOTAL REQUIRED INCOME. 
FN2  INSTEAD WE THINK THAT THESE PROCEEDINGS ARE BUT ANOTHER STEP IN
THE COMPREHENSIVE REGULATION BY THE COMMISSION OF THE GENERAL PASSENGER
FARE STRUCTURE. 

BASIC INTERSTATE FARES.  THE BASIC PASSENGER FARES WERE FIRST
INVESTIGATED ON A NATIONAL SCALE BY THE COMMISSION IN PASSENGER FARES
AND SURCHARGES, NO. 26550, DECIDED FEBRUARY 28, 1936.  IN THIS
PROCEEDING CARRIER COACH AND PULLMAN FARES RESPECTIVELY WERE FIXED AT
NOT TO EXCEED 2 AND 3 CENTS PER PASSENGER MILE.  214 I.C.C. 174, 256. 
FN3  THE ORDER, SEE PARAGRAPH 3, PAGE 257, LEFT THESE RESPONDENT ROADS
IN THE SOUTHERN TERRITORY FREE TO CONTINUE CERTAIN EXPERIMENTAL FARES,
WHICH WERE AS LOW AS 1.5 CENTS PER MILE IN COACHES.  A TEN PER CENT
INCREASE, APPLICABLE TO BOTH THE BASIC 2 AND 3 CENT FARES AND THE
EXPERIMENTAL FARES, WAS ALLOWED ON JANUARY 21, 1942, IN A PROCEEDING
BEFORE THE COMMISSION, DOCKETED AS EX PARTE NO. 148, INCREASED RAILWAY
RATES, FARES, AND CHARGES, 248 I.C.C. 545, 549, 564, 566, 612.  A
REFERENCE TO THE COMMISSION'S DECISIONS IN THE ABOVE PROCEEDINGS WILL
INDICATE THE FULL HEARING WHICH WAS GIVEN THE FARE PROBLEMS IN THOSE
CASES.  IN THE PASSENGER FARES CASE, THE REPORT OF THE COMMISSION, 214
I.C.C. AT 175, SHOWS THAT ALL CARRIERS BY RAILROAD SUBJECT TO THE ACT
WERE MADE RESPONDENTS AND THAT A COMMITTEE OF THE STATE COMMISSIONERS
COOPERATED WITH THE COMMISSION IN DETERMINING THE ISSUES.  IN THE
INCREASED RAILWAY RATES CASE, ALL THE STATES WERE NOTIFIED OF THE
PENDENCY OF THE PROCEEDING AND A COMMITTEE OF THE STATE COMMISSIONS
ALSO ATTENDED THE HEARING AND ORAL ARGUMENT AND CONFERRED AS TO THE
DETERMINATION OF THE ISSUES.  248 I.C.C. AT 549.  ALL RAIL CARRIERS
WERE AGAIN BEFORE THE COMMISSION. 

AFTER THE TEN PER CENT INCREASE, THE RAILROADS OF SOUTHERN PASSENGER
ASSOCIATION TERRITORY FILED, ON JULY 14, 1942, A PETITION IN PASSENGER
FARES AND SURCHARGES, NO. 26550, SEEKING A MODIFICATION OF PARAGRAPH 3
OF THE CONCLUSIONS, 214 I.C.C. AT 257, TO ENABLE THEM TO FILE TARIFFS
INCREASING THEIR COACH FARE TO 2.2 CENTS (2 CENTS PLUS 10 PER CENT). 
THE COMMISSION RULED THAT ITS FORMER DECISION IN NO. 26550, 214 I.C.C.
AT 256, PERMITTED ALL RAILROADS, RESPONDENTS THEREIN, WHICH INCLUDED
APPLICANTS, TO CHARGE A BASIC FARE OF 2 CENTS AND THAT A GENERAL
INCREASE OF 10 PER CENT ON THESE RATES HAD BEEN AUTHORIZED IN EX PARTE
NO. 148, AND THAT THEREFORE THE COMMISSION COULD AND IT DID AUTHORIZE
THE APPLICATION OF THE 2.2 CENT BASIC RATE TO INTERSTATE RATES IN
SOUTHERN TERRITORY.  THE COMMISSION BY ORDER OF AUGUST 1, 1942,
DIRECTED THAT THE PETITION IN NO. 26550 BE DENIED, EVIDENTLY BECAUSE
THE ORDER IN THAT NUMBER HAD BEEN SUPERSEDED BY THE "INCREASED RATES"
PROCEEDINGS, EX PARTE NO. 148, AND THAT ITS ORDER IN EX PARTE NO. 148
BE MODIFIED TO EFFECTUATE THIS INCREASE AND THAT IT BE LEFT OTHERWISE
UNCHANGED.  FN4  THE PARTICIPATING CARRIERS THEN APPROACHED THE
SEPARATE STATE AUTHORITIES TO OBTAIN THEIR CONSENT TO THE INCREASE FOR
INTRASTATE PASSENGER TRAFFIC IN ACCORDANCE WITH THE RECITATION IN THE
ORDER OF JANUARY 21, 1942, IN EX PARTE NO. 148.  FN5  ON THE REFUSAL OF
THE RATE REGULATORY AUTHORITIES OF NORTH CAROLINA, ALABAMA, TENNESSEE
AND KENTUCKY TO AUTHORIZE THE APPLICATION OF THE INCREASED INTERSTATE
BASIC COACH FARE OF 2.2 CENTS, WITH CORRESPONDING ADJUSTMENTS FOR
PULLMANS, TO ALL INTRASTATE FARES, THIS PRESENT PROCEEDING WAS
INITIATED BY THE CARRIERS TO SECURE THE COMMISSION ORDER OF MAY 8,
1944, HERE INVOLVED, WHICH REQUIRES THE APPLICATION OF A BASIS NO LOWER
THAN THEIR PRESENT INTERSTATE BASIS TO INTRASTATE FARES,
NOTWITHSTANDING THE REFUSAL OF THE STATE RATE AUTHORITIES TO AUTHORIZE
A SIMILAR APPLICATION.  THE COMMISSIONS OF THE RESPECTIVE STATES, AND
THE PRICE ADMINISTRATOR FOR HIMSELF AND THE DIRECTOR OF ECONOMIC
STABILIZATION INTERVENED. 

THE FOREGOING REFERENCES MAKE PLAIN THAT BEGINNING WITH THE
COMPREHENSIVE INVESTIGATION OF PASSENGER FARES, WHICH WAS INSTITUTED BY
COMMISSION ORDER OF JUNE 4, 1934, AND RESULTED IN THE ORDER OF FEBRUARY
28, 1936, 214 I.C.C. 174, THE STATE REGULATORY AUTHORITIES HAVE NOT
ONLY BEEN ADVISED OF THE RATE PROCEEDINGS BUT HAVE PARTICIPATED IN
THEM.  THE RECORD SPECIFICALLY SHOWS THIS PARTICIPATION EXCEPT IN THE
SUPPLEMENTARY PROCEEDING UNDER DOCKET NO. 26550, WHICH WAS FILED JULY
14, 1942, AND RESULTED IN THE ORDER OF AUGUST 1, 1942, IN DOCKET EX
PARTE NO. 148.  THIS AUGUST 1, 1942, ORDER, NOTE 4 SUPRA, PERMITTED
INCREASING THE CARRIERS' INTERSTATE FARES OF 1.65 CENTS PER PASSENGER
MILE (THE 1.50 CENTS OF THE 1936 EXPERIMENTAL SOUTHERN DISTRICT FARES,
THEN ADJUDGED BY THE COMMISSION TO BE "NOT UNREASONABLE OR OTHERWISE
UNLAWFUL," 214 I.C.C. 257, PAR. 3, AND THE TEN PER CENT INCREASE
THEREON OF EX PARTE NO. 148, 248 I.C.C. 545, 564-66) TO 2.2 CENTS. 
THERE WAS NO OCCASION OR REQUIREMENT FOR HEARING OR REPORT BY THE
COMMISSION OR NOTICE TO THE STATES OF THE PETITION OF THE SOUTHERN
PASSENGER ASSOCIATION CARRIERS FOR PERMISSION TO APPLY THIS 2.2 CENTS
BASIC PASSENGER RATE TO THEIR INTERSTATE TRAFFIC. 

THE SOUTHERN RAILROAD PASSENGER RATE PROBLEM WAS STATED IN THE TERMS
OF "WHAT REASONABLE FARE BASIS WILL MEET WITH THE GREATEST REVENUE
RESPONSE FROM THE PUBLIC?"  214 I.C.C. AT 201.  THE CONCLUSION OF THE
COMMISSION IS THUS SUMMARIZED AT PAGE 255, FINDING OF FACT NO. 11: 

"GIVING APPROPRIATE CONSIDERATION TO ALL OF THE EVIDENT CIRCUMSTANCES
AND CONDITIONS WHICH ARE LIKELY TO AFFECT THE ULTIMATE REVENUE RESULT
TO RESPONDENTS, A MAXIMUM-FARE BASIS, ONE WAY AND ROUND TRIP, FOR
GENERAL APPLICATION, OF 2 CENTS PER MILE IN COACHES AND 3 CENTS PER
MILE IN PULLMANS WOULD BE MOST LIKELY TO LESSEN THE TRANSPORTATION
BURDEN OF RESPONDENTS AND TO HARMONIZE WITH PRESENTDAY ECONOMIC
CONDITIONS, WITH CONSEQUENT FULLER ASSURANCE TO THE RESPONDENTS OF
REALIZING A FAIR RETURN UPON THEIR PROPERTY INVESTMENT.  THERE IS DOUBT
WHETHER AT LEAST IN THE SOUTHERN DISTRICT A COACH FARE OF 1.5 CENTS PER
MILE IS NOT PRODUCING BETTER REVENUE RESULTS FOR THOSE RESPONDENTS THAN
WOULD ANY HIGHER FARE, AND IT MAY ALSO BE THAT ROUND-TRIP FARES ON BOTH
COACH AND PULLMAN TRAFFIC AT A LOWER RATE PER MILE THAN THE ONE-WAY
FARES HEREIN PRESCRIBED WOULD BRING TO RESPONDENTS BETTER REVENUE
RESULTS THAN THE HIGHER FARES.  THESE MATTERS ARE LEFT TO THE
DISCRETION OF RESPONDENTS." 

THIS RESULTED IN THE FOLLOWING PROVISION BY THE COMMISSION, AT PAGE
257: 

"3.  THE PRESENT EXPERIMENTAL FARES IN THE SOUTHERN AND WESTERN
DISTRICTS AND ON THE NORFOLK & WESTERN ARE NOT UNREASONABLE OR
OTHERWISE UNLAWFUL."  OBVIOUSLY THIS PROVISION WAS TO MAKE CLEAR THAT
THE CURRENT LOWER RATES OF THE SOUTHERN CARRIERS WERE NOT DISAPPROVED. 
IT CANNOT PROPERLY BE READ, EVEN THOUGH ENTIRELY ISOLATED FROM ITS
CONTEXT, AS A REQUIREMENT THAT THE SOUTHERN CARRIERS SHOULD CONTINUE TO
APPLY THIS LOWER BASIS TO THEIR PASSENGER FARES.  THE PRECEDING
PROVISION LIMITED THE REGULAR PASSENGER FARE STRUCTURE OF ALL
RAILROADS, INCLUDING OF COURSE THE SOUTHERN CARRIERS NOW APPELLEES, TO
A MAXIMUM OF 2 CENTS PER PASSENGER MILE IN COACHES, WITHOUT PREJUDICE
TO LOWER FARES.  LOWER FARES WERE "DISCRETIONARY" WITH THE COMPANY. 
THE ACCOMPANYING ORDER LIMITED MAXIMUM INTERSTATE FARES GENERALLY TO 2
CENTS AND CONTAINED NO REFERENCE TO THE LOWER EXPERIMENTAL FARES.  THUS
A NATIONAL INTERSTATE BASIS SCHEDULE, UNIVERSALLY APPLICABLE,  FN6  WAS
ESTABLISHED BY THE REPORT AND ORDER IN DOCKET NO. 26550, THE PASSENGER
FARES AND SURCHARGES DECISION, AND THIS BASIS WAS INCREASED TO 2.2
CENTS PER MILE BY THE JANUARY 21, 1942, ORDER IN EX PARTE NO. 148, 248
I.C.C. 545.  CONSEQUENTLY WHEN THE SOUTHERN CARRIERS, APPELLEES HERE,
PETITIONED ON JULY 14, 1942, SEEKING A MODIFICATION TO PERMIT THE
PUBLICATION OF INTERSTATE PASSENGER TARIFFS IN CONFORMITY WITH THE
PREVIOUS CONCLUSIONS IN NO. 26550 AND EX PARTE NO. 148, NO FURTHER
INVESTIGATION, REPORT OR NOTICE TO ANYONE WAS NEEDED. 

THE INTERSTATE BASIS HAD BEEN FIXED AT 2.2 CENTS A FEW MONTHS
BEFORE.  CARRIERS AND STATES ALIKE HAD ACQUIESCED.  THE CARRIERS NOW
WISHED TO EXERCISE THE DISCRETION TO RAISE FARES, WHICH DISCRETION HAD
BEEN RESERVED TO THEM IN NO. 26550, 214 I.C.C. AT 255, AND SUBSEQUENT
CONCLUSIONS 2 AND 3, AT 256.  ALL THAT WAS NECESSARY WAS TO MODIFY THE
ORDER IN EX PARTE NO. 148 OF JANUARY 21, 1942, WHICH HAD APPROVED, "AS
PROPOSED," A REQUESTED TEN PER CENT INCREASE IN FARES "AS PUBLISHED IN
PASSENGER TARIFFS," 248 I.C.C. 550, 565, AND THE ORDER, NOTE 5 SUPRA,
SO THAT THE LIMITATION "AS PUBLISHED IN PASSENGER TARIFFS" WOULD BE
REMOVED.  THE APPELLEE CARRIERS HAD OUTSTANDING PUBLISHED TARIFFS OF
1.50 CENTS WHEN THE JANUARY 21, 1942, ORDER WAS ENTERED.  THE AUGUST 1,
1942 ORDER REMOVED THE LIMITATION.  SEE NOTE 4 SUPRA. 

THE PRECEDING PARAGRAPHS UNDER "BASIC INTERSTATE FARES" DEMONSTRATE,
WE THINK, THAT NO FURTHER HEARINGS OR FINDINGS BY THE COMMISSION WERE
NECESSARY TO ENABLE THE COMMISSION TO AUTHORIZE THE APPLICATION OF THE
NATIONAL BASIS OF 2.2 CENTS TO THEIR INTERSTATE FARES BY THE APPELLEE
CARRIERS, INSTEAD OF THE 1.65 CENTS IN EFFECT PRIOR TO THE ORDER OF
AUGUST 1, 1942. 

DISCRIMINATION AGAINST INTERSTATE COMMERCE.  THE COURT HOLDS,
HOWEVER, THAT EVEN IF IT IS ASSUMED THAT THE ORDER PERMITTING THE
INTERSTATE BASIC FARE OF 2.2 CENTS IS VALID, IT DOES NOT FOLLOW THAT
THE INTRASTATE PASSENGER TRAFFIC EARNINGS ON THE 1.65 CENT RATE ARE NOT
CONTRIBUTING A FAIR PROPORTION OF THE REQUIRED TOTAL EARNINGS OF THE
ROAD.  THE COURT POINTS TO EVIDENCE FROM WHICH THE COMMISSION MIGHT
HAVE FOUND THAT THE 1.65 CENT BASIS, OR A LOWER BASIS THAN 2.2 CENTS,
WOULD PRODUCE SUFFICIENT TO MEET THE INTRASTATE CONTRIBUTION.  EVIDENCE
IS SET OUT IN THE COURT'S OPINION SHOWING GREATLY INCREASED PASSENGER
EARNINGS.  THE COURT CONCLUDES THAT AS SUCH EVIDENCE IS PRESENTED IN
THIS RECORD, THE COMMISSION MUST MAKE FINDING THAT NO LOWER FARE WILL
PRODUCE INTRASTATE TRAFFIC'S PROPORTION OF REVENUE BEFORE REQUIRING THE
APPLICATION OF THE INTERSTATE 2.2 CENT RATE TO INTRASTATE FARES. 

THIS ARGUMENT, WE THINK, FLOWS FROM ANOTHER PHASE OF THE SAME
MISCONCEPTION TO WHICH WE EARLIER REFERRED AS THE SOURCE OF THE COURT'S
ERRONEOUS CONCLUSION.  THESE PROCEEDINGS OUGHT NOT TO BE TREATED AS
ISOLATED EFFORTS TO SECURE HIGHER INTRASTATE RATES BECAUSE THE PRESENT
INTRASTATE RATES ARE NOT PRODUCING THEIR FAIR SHARE OF THE TOTAL
REQUIRED INCOME.  TO THE COURT'S REQUIREMENT, WHICH IT READS INTO SECS.
13(4) AND 15A, OF A SPECIFIC FINDING ON THE ISSUE OF WHETHER THE
PRESENT 1.65 CENT INTRASTATE RATE PRODUCES NOW THE PROPER INTRASTATE
PROPORTION OF REVENUE, THERE SEEMS TO US A CONCLUSIVE ANSWER.  THE
INTERSTATE MAXIMUM WAS ADOPTED BY THE COMMISSION ON THE ASSUMPTION THAT
THE INTRASTATE RATES WOULD BE ADJUSTED TO THE SAME LEVEL.  THEREFORE
REVENUE FROM INTRASTATE RATES AT THE INTERSTATE FARES IS REQUIRED TO
PRODUCE THE NEEDED INCOME.    IN THIS PRESENT PROCEEDING THE VALIDITY
OF THE INTERSTATE RATE OF THESE CARRIER APPELLEES WAS RE-EXAMINED.  FN7
EVIDENCE AS TO EACH APPELLEE CARRIER OF FORMER DEFICITS FROM ITS
ENTIRE PASSENGER TRAFFIC PRIOR TO 1942 WAS NOTED.  EVIDENCE AS TO THEIR
PASSENGER OPERATING RATIOS, THEIR INCREASED EXPENSES, THEIR NET
EARNINGS ON PASSENGER BUSINESS AND OTHER OPERATIONS ALSO, WAS RECEIVED
AND APPRAISED.  ATTENTION WAS CALLED, 258 I.C.C. 142, TO THE FACT THAT
THE PREVIOUS INVESTIGATION INTO PASSENGER RATES, EX PARTE NO. 148, HAD
ANTICIPATED THE EARNINGS DURING WAR YEARS, PAGE 142, AND THEIR NEED FOR
DEFERRED MAINTENANCE AND WAR SERVICE, PAGE 148.  THE INTERSTATE BASIC
RATE WAS FOUND JUST AND REASONABLE.  SEE ALABAMA INTRASTATE FARES, 258
I.C.C. 133, 137. 

THE FIGURES USED WERE AGGREGATE FIGURES FOR PAST PASSENGER RECEIPTS
AND EXPENSES.  AUDITS FOR REPRESENTATIVE PERIODS SHOWED THE ESTIMATED
AMOUNT OF ADDITIONAL REVENUE FROM THE INCREASED INTRASTATE FARES.  FN8
THE STATISTICS FOR THE NET RAILWAY OPERATING INCOME WERE INTRODUCED
WHICH COVERED ALL RECEIPTS AND EXPENSES.  THE EVIDENCE OF TRAIN SERVICE
IN THE RESPECTIVE STATES LED THE COMMISSION TO FIND THAT TRAVEL
CONDITIONS WERE "SUBSTANTIALLY SIMILAR," 258 I.C.C. 154.  IF THE
COMMISSION'S CONCLUSION AS TO CARRIER REVENUE NEEDS ASSUMED EQUAL
INTRASTATE AND INTERSTATE FARES AND IF THE PRESENT INTERSTATE RATES
WERE HELD "JUST AND REASONABLE," IT FOLLOWS THAT THE FINDING THAT THE
LOWER INTRASTATE RATES WERE NOT CONTRIBUTING THEIR FAIR SHARE OF THE
"REVENUES REQUIRED TO ENABLE RESPONDENTS TO RENDER ADEQUATE AND
EFFICIENT TRANSPORTATION SERVICE" WAS PROPER.  THIS LOGICALLY LED TO
THE FINDING 6, THAT THIS FAILURE OF INTRASTATE TRAFFIC TO CONTRIBUTE
ITS PART DISCRIMINATED AGAINST INTERSTATE COMMERCE. 

THE DETERMINATION OF THE NECESSARY BASIC INTERSTATE RATE IN ALL THESE
PROCEEDINGS WAS MADE ON THE SUPPOSITION OF INTRASTATE RATES OF EQUAL
LEVEL.  WHEN GENERAL BASIC RATES, FARES OR CHARGES ARE FIXED BY THE
COMMISSION, THE COMMISSION NECESSARILY GIVES CONSIDERATION "TO THE NEED
OF REVENUES SUFFICIENT TO ENABLE THE CARRIERS, UNDER HONEST,
ECONOMICAL, AND EFFICIENT MANAGEMENT TO PROVIDE" RAILWAY TRANSPORTATION
AT THE LOWEST COST.  SEC. 15A.  THEREFORE WHEN INTERSTATE RATES ARE
FIXED WITH THE SUPPOSITION OF AN EQUAL LEVEL FOR INTRASTATE RATES, FOR
SUBSTANTIALLY SIMILAR SERVICE, IT REQUIRES A CONTRIBUTION ON THAT BASIS
FROM INTRASTATE RATES TO AVOID INTRASTATE DISCRIMINATION AGAINST
INTERSTATE TRAFFIC.  IF IT APPEARS THAT INTERSTATE FARES HAVE BEEN
FIXED WITH THE SUPPOSITION OF AN EQUAL LEVEL FOR INTRASTATE FARES, THEN
IT IS CLEAR THAT INTRASTATE RATES ARE NOT PRODUCING THEIR EXPECTED
REVENUE.  THE COMMISSION THUS WOULD HAVE MANIFESTED ITS CONSIDERATION
OF THE STATUTORY REQUIREMENTS OF SECS. 13(4) AND 15A THAT DUE
CONSIDERATION BE GIVEN REVENUE AND EFFICIENT MANAGEMENT IN FINDING
UNJUST DISCRIMINATION AGAINST INTERSTATE COMMERCE AND IN PRESCRIBING
THE INTRASTATE RATE WHICH WOULD REMOVE THE DISCRIMINATION.  SEE UNITED
STATES V. CAROLINA CARRIERS CORP., 315 U.S. 475, 489. 

IN THE PROCEEDING IN WHICH THESE SOUTHERN INTERSTATE CARRIERS WERE
PERMITTED TO APPLY THE GENERAL BASIC INTERSTATE COACH RATE OF 2.2
CENTS, THE ORDER THEREIN OF AUGUST 1, 1942, BY ADOPTING THE ORDER OF
JANUARY 21, 1942, IN EX PARTE NO. 148, 248 I.C.C. 545, REQUIRED THE
APPELLEE CARRIERS TO MAKE APPLICATION TO THE STATE AUTHORITIES FOR
SIMILAR INTRASTATE INCREASES.  SEE NOTE 5, SUPRA.  THE REQUIRED
APPLICATIONS LED DIRECTLY TO THIS LITIGATION. 

BOTH IN PASSENGER FARES AND SURCHARGES, 214 I.C.C. 174, 257, PAR. 5,
AND INCREASED RAILWAY RATES, EX PARTE NO. 148, 248 I.C.C. 545, 565-66,
WHICH ARE THE TWO INVESTIGATIONS WHICH BROUGHT INTERSTATE COACH FARES
TO A MAXIMUM OF 2.2 CENTS PER PASSENGER MILE, THE COMMISSION ITSELF
ORDERED THE NUMEROUS INTRASTATE FARES WHICH WERE UNDER ITS DIRECTION
BECAUSE REGULATED BY THE COMMISSION THROUGH PREVIOUS SEC. 13
PROCEEDINGS, MODIFIED IN ACCORDANCE WITH THE INTERSTATE FARES.  AS
POINTED OUT IN THE PRECEDING PARAGRAPH THE ORDER IN EX PARTE NO. 148
REQUIRED APPLICATION TO STATE RATE REGULATORY BODIES FOR AUTHORITY TO
INCREASE THE INTRASTATE PASSENGER RATES TO THE SAME LEVEL.  SPECIFIC
CONSIDERATION WAS GIVEN TO VARIOUS OBJECTIONS RAISED BY STATE
COMMISSIONS TO THE PROPOSED NEW FARES AND RATES, ALL WITH AN EYE TO
SECURING FUTURE COMPLIANCE BY THE STATES WITH THE INTERSTATE RATES TO
BE SET BY THE COMMISSION.  SEE 248 I.C.C. AT 560, 565, 574, 580, 582. 
IN THE PASSENGER FARES INVESTIGATION, THE FIGURES ON PASSENGER TRAFFIC
REFLECT THE AGGREGATE USE OF TRAINS WITHOUT CONSIDERATION OF A DIVISION
OF THE TRAFFIC BETWEEN INTER-AND INTRASTATE.  214 I.C.C. 174, 176, 179,
180, 185, 200, 209, 221, 230, 231.  THE COMMISSION SAID AT PAGE 187:
"AT THE TIME THE 1920 INCREASE WAS AUTHORIZED MANY OF THE STATES
PROHIBITED PASSENGER FARES ABOVE CERTAIN AMOUNTS PER MILE, MOST OF THEM
2 CENTS OR 2.5 CENTS, AND SECTION 13 ORDERS BY US BECAME NECESSARY IN
ORDER TO BRING THE INTRASTATE FARES IN THOSE STATES UP TO THE
INTERSTATE BASIS." 

THE TABLES OF PASSENGER STATISTICS IN THE APPENDICES DO NOT SEPARATE
THE TRAFFIC.  REVENUE FROM ALL PASSENGER TRAFFIC WAS THE DOMINANT
MOTIVE.  SEE "FACT FINDINGS," PAGE 253.  EVIDENCE IN EX PARTE NO. 148
LIKEWISE RELATED TO AGGREGATE REVENUE.  SO DID THE EXPECTED INCREASES. 

"ON THE BASIS OF TRAFFIC, BOTH INTERSTATE AND INTRASTATE, MOVED
DURING 1941 AND MOVING WHEN THE PETITION WAS FILED, ALLOWING FOR
READJUSTMENTS REQUIRED BY COMMERCIAL AND TRAFFIC CONDITIONS,
PETITIONERS ESTIMATE THAT THE PROPOSALS WILL YIELD INCREASED REVENUE
FOR ALL CLASS I RAILROADS OF ABOUT $356,956,000 PER YEAR."  248 I.C.C.
552.  THE INTERSTATE INCREASE OF EX PARTE NO. 148 "BECAME EFFECTIVE ON
INTRASTATE TRAFFIC IN ALL OF THE STATES" BY STATE ORDER.  258 I.C.C. AT
136.  THE GENERAL CONSIDERATIONS ON THE DECLINE IN RAILROAD PASSENGER
TRAFFIC WHICH MOTIVATED THE COMMISSION IN ESTABLISHING THE NEW
INTERSTATE RATE APPLIED TO BOTH INTRASTATE AND INTERSTATE TRAFFIC.  214
I.C.C. AT 176; 248 I.C.C. AT 551.  AS A MATTER OF FACT, SEPARATION OF
INTERSTATE AND INTRASTATE INCOME IS NOT REQUIRED BY THE COMMISSION IN
ITS ANNUAL REPORTS.  49 C.F.R. SEC. 120.11 ET SEQ.  THESE PROCEEDINGS
CONVINCE US THAT THE COMMISSION REACHED ITS CONCLUSION AS TO THE PROPER
INTERSTATE RATE WITH THE UNDERSTANDING THAT THE INTERSTATE RATE WOULD
BE APPLIED TO INTRASTATE TRAFFIC AND THAT SUCH REVENUE AS MIGHT RESULT
FROM THAT APPLICATION WAS NEEDED BY THE CARRIERS INVOLVED TO FURNISH
ADEQUATE SERVICE. 

UNDER SEC. 13(4) OF THE INTERSTATE COMMERCE ACT IN PROCEEDINGS AS TO
UNJUST DISCRIMINATION AGAINST INTERSTATE COMMERCE, THE ISSUE IS NOT THE
EARNINGS FROM INTRASTATE TRAFFIC BUT THE APPROPRIATE PROPORTION OF
THOSE EARNINGS AS COMPARED WITH EARNINGS FROM INTERSTATE COMMERCE. 
TRANSPORTATION SERVICE.  SECTION 13(4) REQUIRES A FINDING OF
DISCRIMINATION AGAINST INTERSTATE COMMERCE AS A BASIS FOR REGULATION OF
INTRASTATE COMMERCE, 258 I.C.C. 154-55, PARS. 5 AND 6.  IT MAY BE THAT
THE EARNINGS FROM INTRASTATE COMMERCE MAY SOMETIMES BE ONE PERCENTAGE
OF AGGREGATE EARNINGS AND AT ANOTHER TIME ANOTHER PERCENTAGE.  THE
COMMISSION MAY CONCLUDE THAT THE CARRIERS' REQUIRED REVENUE MAY BEST BE
OBTAINED FROM INTRASTATE PASSENGER FARES RATHER THAN FROM FREIGHT
RATES.  THE REVERSE WAS ONCE TRUE.  CF. 214 I.C.C. AT 227.  THESE ARE
MATTERS FOR COMMISSION DECISION. 

THE LANGUAGE OF 15A HAS BEEN MODIFIED FROM ITS ORIGINAL FORM IN THE
TRANSPORTATION ACT OF 1920 SO THAT IT NO LONGER SPECIFICALLY EMPOWERS
THE COMMISSION TO DEAL WITH FARES AND RATES OF CARRIERS AS A WHOLE FOR
THE NATION OR AS A WHOLE IN DESIGNATED TERRITORIES OR RATE GROUPS.  WE
THINK, HOWEVER, THAT THE PRESENT STATUTE, "IN THE EXERCISE OF ITS POWER
TO PRESCRIBE JUST AND REASONABLE RATES," THE COMMISSION SHALL GIVE
CONSIDERATION TO VARIOUS NAMED FACTORS, IS ADEQUATE TO PERMIT GENERAL
RATE REGULATION UNDER 15A AND SEC. 1(5).  THIS POWER HAS BEEN
UNQUESTIONED.  SEE PASSENGER FARES AND SURCHARGES, 214 I.C.C. 174, AND
CLASS RATE INVESTIGATION NO. 28300 AND CONSOLIDATED FREIGHT
CLASSIFICATION NO. 28310.  IT IS THE ONLY PRACTICABLE APPROACH TO THE
PROBLEM.  SEE DISCUSSION IN NEW ENGLAND DIVISIONS CASE, 261 U.S. 184,
196.  WE CANNOT TREAT THE PRESENT PROCEEDING AS DISASSOCIATED FROM THE
GENERAL INVESTIGATION INTO PASSENGER FARES.  UNITED STATES V.
LOUISIANA, 290 U.S. 70, 76-79.  WE THINK IT IS ADEQUATELY SHOWN THAT
THE ORDERS IN THE GENERAL INVESTIGATION WERE PREDICATED UPON THE
ASSUMPTION THAT INTRASTATE PASSENGER TRAFFIC WOULD HAVE AN EQUAL BASIS
WITH INTERSTATE TRAFFIC FOR FARES. 

UNJUST OR UNREASONABLE INTRASTATE FARES.  IT MAY BE THAT THE
INTRASTATE FARES PRESCRIBED BY THE COMMISSION ARE UNJUST OR
UNREASONABLE IN CERTAIN ITEMS.  THE REPORT OF THE COMMISSION PROVIDES A
REMEDY FOR SUCH A SITUATION: 

"THE FOREGOING FINDINGS ARE WITHOUT PREJUDICE TO THE RIGHT OF THE
AUTHORITIES OF THE AFFECTED STATES, OR OF ANY INTERESTED PARTY, TO
APPLY FOR MODIFICATION THEREOF AS TO ANY SPECIFIC INTRASTATE FARE ON
THE GROUND THAT SUCH FARE IS NOT RELATED TO INTERSTATE FARES IN SUCH A
WAY AS TO CONTRAVENE THE PROVISIONS OF THE INTERSTATE COMMERCE ACT." 
258 I.C.C. AT P. 155. 

THE REMEDY FOR A READJUSTMENT OF THE BASIC INTERSTATE FARE OR FOR A
SEPARATION OF THE LEVELS OF INTERSTATE AND INTRASTATE FARES IS BY
APPLICATION TO THE COMMISSION FOR REOPENING OF PASSENGER FARES AND
SURCHARGES, 214 I.C.C. 174. 

WE DO NOT CONSIDER THE OTHER POINTS WHICH ARE RAISED BY THE APPEAL. 

FN1  THE PRESENT SEC. 15A, 49 U.S.C., READS AS FOLLOWS: 

"(1)  WHEN USED IN THIS SECTION, THE TERM 'RATES' MEANS RATES, FARES,
AND CHARGES, AND ALL CLASSIFICATIONS, REGULATIONS, AND PRACTICES
RELATING THERETO. 

"(2)  IN THE EXERCISE OF ITS POWER TO PRESCRIBE JUST AND REASONABLE
RATES THE COMMISSION SHALL GIVE DUE CONSIDERATION, AMONG OTHER FACTORS,
TO THE EFFECT OF RATES ON THE MOVEMENT OF TRAFFIC BY THE CARRIER OR
CARRIERS FOR WHICH THE RATES ARE PRESCRIBED; TO THE NEED, IN THE PUBLIC
INTEREST, OF ADEQUATE AND EFFICIENT RAILWAY TRANSPORTATION SERVICE AT
THE LOWEST COST CONSISTENT WITH THE FURNISHING OF SUCH SERVICE; AND TO
THE NEED OF REVENUES SUFFICIENT TO ENABLE THE CARRIERS, UNDER HONEST,
ECONOMICAL, AND EFFICIENT MANAGEMENT TO PROVIDE SUCH SERVICE." 

FN2  COMPARE THE FOLLOWING EXCERPT FROM THE OPINION OF THE COURT: 

"BUT THE QUESTION POSED BY THE COMMISSION'S CONCLUSION WAS WHETHER
THE PARTICULAR NORTH CAROLINA RAILROADS WERE OBTAINING FROM NORTH
CAROLINA'S INTRASTATE PASSENGER RATES THEIR FAIR PART OF SUCH FUNDS AS
WERE REQUIRED TO ENABLE THESE PARTICULAR RAILROADS TO RENDER ADEQUATE
AND EFFICIENT SERVICE.  THE COMMISSION MADE NO FINDINGS AS TO WHAT
CONTRIBUTION FROM INTRASTATE TRAFFIC WOULD CONSTITUTE A FAIR PROPORTION
OF THE RAILROAD'S TOTAL INCOME.  IT MADE NO FINDING AS TO WHAT AMOUNT
OF REVENUE WAS REQUIRED TO ENABLE THESE RAILROADS TO OPERATE
EFFICIENTLY.  INSTEAD, IT RELIED ON THE MERE EXISTENCE OF A DISPARITY
BETWEEN WHAT IT SAID WAS A REASONABLE INTERSTATE RATE AND THE
INTRASTATE RATE FIXED BY NORTH CAROLINA.  IT THOUGHT THIS ACTION WAS
JUSTIFIED BY THIS COURT'S OPINION IN ILLINOIS COMMERCE COMM'N V. UNITED
STATES, 292 U.S. 474, 485." 

FN3  STATES MADE THE EARLIEST EFFORTS TO LIMIT PASSENGER FARES.  E.G.
KANSAS, 1901, SEC. 66-167, REVISED STATUTES OF KANSAS (1923); NORTH
DAKOTA, 1907, SEC 4796, COMPILED LAWS OF NORTH DAKOTA (1913); ILLINOIS,
1907, SEC. 170, CALLAGHAN'S ILLINOIS STATUTES ANNOTATED (1924); IOWA,
1913, SEC. 8126, CODE OF IOWA (1924).  SUCH LIMITATIONS WERE, OF
COURSE, NOT UNIFORM.  ON MAY 25, 1918, BY GENERAL ORDER NO. 28, THE
UNITED STATES RAILROAD ADMINISTRATION IN ORDER TO INCREASE THE
OPERATING REVENUE FIXED THE NATIONAL BASIC PASSENGER FARE IN COACHES,
INTERSTATE AND INTRASTATE, AT NOT LESS THAN 3 CENTS PER MILE, WITH A
SURCHARGE FOR PULLMANS.  THIS PRODUCED A CONSIDERABLE DEGREE OF
UNIFORMITY.  AN INCREASE OF 20% OR TO 3.6 CENTS WAS MADE AS OF AUGUST
26, 1920.  IN THE DEPRESSION OF THE 1930S CERTAIN CARRIERS OPERATING IN
SOUTHERN TERRITORY EXPERIMENTED WITH FAIR SUCCESS ON REVENUES WITH
FARES AS LOW AS 1.5 CENTS PER MILE IN COACHES.  ALABAMA INTRASTATE
FARES, 258 I.C.C. AT 134. 

APPROXIMATE UNIFORMITY BEFORE 1936 WAS MAINTAINED BY THE COMMISSION'S
USE OF 13(4) ORDERS TO BRING INTRASTATE FARES INTO LINE WITH INTERSTATE
FARES.  THE COMMISSION FOUND IT MORE CONVENIENT LATER TO SECURE STATE
ADOPTION OF ITS RATES BY COOPERATION THROUGH AGREEMENT.  SEE SHARFMAN,
THE INTERSTATE COMMERCE COMMISSION II, PP. 287-344. 

FN4  "IT IS FURTHER ORDERED, THAT THE ORDER OF JANUARY 21, 1942, IN
EX PARTE NO. 148, BE, AND IT IS HEREBY, FURTHER MODIFIED SO AS TO
AUTHORIZE THE AFORESAID PETITIONERS TO APPLY THE INCREASE OF 10 PER
CENT APPROVED IN SAID ORDER TO A BASIC COACH FARE OF 2 CENTS PER MILE
ON THE LINES OF SAID PETITIONERS, SUBJECT TO THE RULE FOR THE
DISPOSITION OF FRACTIONS AS MODIFIED BY ORDER OF JULY 6, 1942, IN SAID
PROCEEDING, AND THAT IN ALL OTHER RESPECTS SAID ORDER OF JANUARY 21,
1942, SHALL REMAIN IN FULL FORCE AND EFFECT." 

FN5  THE PORTION OF THE ORDER REFERRED TO READS AS FOLLOWS: 

"IT APPEARING  ...  THAT THE PROPER AUTHORITIES OF ALL STATES HAVE
BEEN NOTIFIED OF THIS PROCEEDING, AND SIMILAR APPLICATION HAS BEEN OR
WILL BE MADE TO THE REGULATORY AUTHORITY OF THE RESPECTIVE STATES FOR
PERMISSION TO INCREASE SIMILARLY PETITIONERS' INTRASTATE RATES, FARES,
AND CHARGES;           .         .         .         .         . 

"IT IS ORDERED, THAT THE INCREASED PASSENGER FARES AS PROPOSED BY THE
SAID PETITIONERS BE, AND THEY ARE HEREBY, APPROVED  ..." 

FN6  THERE WERE CERTAIN SPECIFIED EXCEPTIONS.  214 I.C.C. AT 244. 

FN7  THE NATIONAL INVESTIGATION, EX PARTE NO. 148, HAS ALSO BEEN
REOPENED AND REEXAMINED AS LATE AS DECEMBER 12, 1944, BUT THE PASSENGER
RATES WERE LEFT UNCHANGED.  259 I.C.C. 159.  THIS REPORT DISCUSSED
INTERMEDIATE REEXAMINATIONS OF THE NATIONAL PASSENGER RATE STRUCTURE. 

FN8  ALABAMA INTRASTATE FARES, 258 I.C.C. 133, 154-55, FINDING 5: 

"RESPONDENTS' REVENUES UNDER THE LOWER INTRASTATE FARES ARE LESS BY
AT LEAST $725,000 PER ANNUM IN ALABAMA, $500,000 IN KENTUCKY, $525,000
IN NORTH CAROLINA, AND $525,000 IN TENNESSEE THAN THEY WOULD BE IF
THOSE FARES WERE INCREASED TO THE LEVEL OF THE CORRESPONDING INTERSTATE
FARES, AND TRAFFIC MOVING UNDER THESE LOWER INTRASTATE FARES IS NOT
CONTRIBUTING ITS FAIR SHARE OF THE REVENUES REQUIRED TO ENABLE
RESPONDENTS TO RENDER ADEQUATE AND EFFICIENT TRANSPORTATION SERVICE." 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS AND MR. JUSTICE FRANKFURTER
JOIN IN THIS DISSENT. 
..END :























ALABAMA V. UNITED STATES, 325 U.S. 535 


ARGUED APRIL 24, 1945.  - DECIDED JUNE 11, 1945.  - 56 F.SUPP.  478,
REVERSED. 


DECIDED ON THE AUTHORITY OF NORTH CAROLINA V. UNITED STATES, ANTE, P.
507. 

ALABAMA ET AL. V. UNITED STATES ET AL. 

NO. 574.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
WESTERN DISTRICT OF KENTUCKY* . 

*TOGETHER WITH NO. 592, DAVIS, ECONOMIC STABILIZATION DIRECTOR, BY
BOWLES, PRICE ADMINISTRATOR, V. UNITED STATES ET AL., ALSO ON APPEAL
FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT
OF KENTUCKY. 

APPEALS FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DENYING
INJUNCTIONS AND DISMISSING THE COMPLAINTS IN THREE SUITS TO ENJOIN AND
SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE STATES OF ALABAMA, TENNESSEE AND KENTUCKY FILED A BILL IN A
FEDERAL DISTRICT COURT SEEKING TO SET ASIDE AND ENJOIN ENFORCEMENT OF
AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.  THE FEDERAL ECONOMIC
STABILIZATION DIRECTOR, ACTING THROUGH THE PRICE ADMINISTRATOR, WAS
GRANTED THE RIGHT TO INTERVENE.  THE COMMISSION'S ORDER DIRECTED THAT
INTRASTATE RAILROAD RATES IN ALABAMA, KENTUCKY, TENNESSEE AND NORTH
CAROLINA, BE RAISED TO THE LEVEL OF INTERSTATE RATES FIXED BY THE
COMMISSION.  FN1  THE DISTRICT COURT DECLINED TO ENJOIN ENFORCEMENT OF
THE ORDER, 56 F.SUPP.  478, AND THE CASE IS HERE ON DIRECT APPEAL UNDER
SEC. 210 OF THE JUDICIAL CODE. 

THE ISSUES HERE ARE SUBSTANTIALLY THE SAME AS IN NORTH CAROLINA V.
UNITED STATES, ANTE, P. 507, WHICH INVOLVED THE SAME ORDER OF THE
COMMISSION AS IT APPLIED TO RATES IN THE STATE OF NORTH CAROLINA.  THE
COMMISSION RELIED BASICALLY ON THE 1936 RATE ORDER, TO WHICH WE
REFERRED IN OUR OPINION IN THE NORTH CAROLINA CASE.  HERE ALSO THE
COMMISSIONS OF THE THREE STATES HAD HELD HEARINGS AND DETERMINED THAT
THE INTRASTATE RATES WERE ADEQUATE IN EVERY RESPECT TO GIVE THE
PARTICULAR RAILROADS INVOLVED A SUFFICIENT INCOME TO COMPENSATE THEM
FULLY FOR THEIR SERVICES AND TO ENABLE THE RAILROADS ADEQUATELY AND
EFFICIENTLY TO OPERATE IN THE STATE.  THERE WAS EVIDENCE BEFORE EACH OF
THE STATE COMMISSIONS, AS THERE WAS BEFORE THE INTERSTATE COMMERCE
COMMISSION, THAT THE RAILROADS WERE ENJOYING AN UNPRECEDENTED
PROSPERITY AND REAPING A TREMENDOUS HARVEST OF PROFITS FROM THEIR
RAILROAD OPERATIONS IN THE STATE.  THERE WAS EVIDENCE FROM WHICH THE
INTERSTATE COMMERCE COMMISSION COULD HAVE FOUND THAT THE INTRASTATE
PASSENGER RATES INVOLVED WERE SUFFICIENT TO PAY EACH RAILROAD A
SUBSTANTIAL PROFIT FOR EACH MILE IT CARRIED AN INTRASTATE PASSENGER. 
THE FINDINGS HERE POSSESS THE SAME INFIRMITIES AS THOSE IN THE NORTH
CAROLINA CASE.  IT FOLLOWS THAT OUR JUDGMENT MUST BE THE SAME. 

BECAUSE THE ORDER OF THE COMMISSION WAS NOT BASED ON ADEQUATE
FINDINGS SUPPORTED BY EVIDENCE, THE DISTRICT COURT SHOULD HAVE DECLINED
TO ENFORCE THE COMMISSION'S ORDER.  THE JUDGMENT OF THE DISTRICT COURT
IS THEREFORE REVERSED. 

FN1  258 I.C.C. 133.  THE STATE 1.65 CENTS PER MILE PASSENGER COACH
RATE WAS DIRECTED TO BE RAISED TO 2.2 CENTS PER MILE.  ROUND TRIP COACH
RATES WERE ORDERED PROPORTIONATELY RAISED.  SLEEPING AND PARLOR CAR
INTRASTATE FARES IN SOME OF THE STATES WERE ALSO DIRECTED TO BE
INCREASED. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, MR. JUSTICE REED, AND MR.
JUSTICE FRANKFURTER DISSENT FOR THE REASONS STATED IN THE DISSENT IN
NORTH CAROLINA V. UNITED STATES, ANTE, P. 520. 
..END :




HILL V. FLORIDA, 325 U.S. 538 


NO. 811.  ARGUED APRIL 4, 5, 1945.  - DECIDED JUNE 11, 1945.  - 155 FLA.
254, 19 SO.2D 857, REVERSED. 


1.  SECTION 4 OF A STATUTE OF FLORIDA (LAWS OF 1943, C. 21968)
PROVIDES THAT NO PERSON SHALL BE LICENSED AS A "BUSINESS AGENT" OF A
LABOR UNION WHO HAS NOT BEEN A CITIZEN OF THE UNITED STATES FOR MORE
THAN 10 YEARS, WHO HAS BEEN CONVICTED OF A FELONY, OR WHO IS NOT A
PERSON OF GOOD MORAL CHARACTER.  SECTION 6 REQUIRES EVERY LABOR UNION
OPERATING IN THE STATE TO FILE AN ANNUAL REPORT DISCLOSING ITS NAME,
THE LOCATION OF ITS PRINCIPAL OFFICES, AND THE NAMES AND ADDRESSES OF
ITS OFFICERS; AND TO PAY AN ANNUAL FEE OF $1.00 THEREFOR.  VIOLATION OF
THE STATUTE BY ANY PERSON OR LABOR ORGANIZATION IS MADE A MISDEMEANOR
PUNISHABLE BY FINE AND IMPRISONMENT.  A STATE COURT ENJOINED THE
PETITIONER LABOR UNION FROM FURTHER FUNCTIONING AND OPERATING, AND
ENJOINED ITS BUSINESS AGENT FROM FURTHER ACTING IN THAT CAPACITY, UNTIL
THEY SHALL HAVE COMPLIED WITH THE STATUTE.  HELD THAT SECS. 4 AND 6 OF
THE FLORIDA STATUTE, AS SO APPLIED, ARE INVALID AS IN CONFLICT WITH THE
NATIONAL LABOR RELATIONS ACT.  P. 541. 

2.  AS HERE APPLIED, SEC. 4 OF THE FLORIDA STATUTE CIRCUMSCRIBES THE
"FULL FREEDOM" OF CHOICE OF COLLECTIVE BARGAINING AGENTS WHICH IS
SECURED TO EMPLOYEES BY THE NATIONAL LABOR RELATIONS ACT.  P. 541. 

3.  THE REQUIREMENT OF REPORTS AND THE EXACTION OF A $1.00 ANNUAL FEE
IN SEC. 6 DOES NOT, IN AND OF ITSELF, CONFLICT WITH THE NATIONAL LABOR
RELATIONS ACT; IT IS THE SANCTION HERE IMPOSED - INJUNCTION AGAINST THE
LABOR UNION FUNCTIONING AS SUCH - WHICH IS INCONSISTENT WITH THE
FEDERALLY PROTECTED PROCESS OF COLLECTIVE BARGAINING.  P. 543. 

HILL ET AL. V. FLORIDA EX REL. WATSON, ATTORNEY GENERAL. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

CERTIORARI, 324 U.S. 832, TO REVIEW THE AFFIRMANCE OF A DECREE
GRANTING INJUNCTIONS AGAINST A LABOR UNION AND ITS BUSINESS AGENT UNTIL
THEY SHALL HAVE COMPLIED WITH THE REQUIREMENTS OF A STATE STATUTE THE
VALIDITY OF WHICH THEY CHALLENGED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE ONLY QUESTION WE FIND IT NECESSARY TO DECIDE IN THIS CASE IS
WHETHER A FLORIDA STATUTE  FN1 REGULATING LABOR UNION ACTIVITIES HAS
BEEN APPLIED TO THESE PETITIONERS IN A MANNER WHICH BRINGS IT INTO
IRRECONCILABLE CONFLICT WITH THE COLLECTIVE BARGAINING REGULATIONS OF
THE NATIONAL LABOR RELATIONS ACT.  49 STAT. 449.  THAT FEDERAL ACT, WE
DECIDED IN ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315 U.S. 740, DID
NOT WHOLLY FORECLOSE STATE POWER TO REGULATE LABOR UNION ACTIVITIES. 
CERTAIN CONDUCT, SUCH AS MASS PICKETING, THREATS, VIOLENCE, AND RELATED
ACTIONS, WE HELD WERE NOT GOVERNED BY THE WAGNER ACT, AND HENCE,
WISCONSIN WAS FREE TO REGULATE THEM.  WE CAREFULLY POINTED OUT,
HOWEVER, THAT HAD THE STATE ORDER UNDER CONSIDERATION, "AFFECTED THE
STATUS OF THE EMPLOYEES, OR  ...  CAUSED A FORFEITURE OF COLLECTIVE
BARGAINING RIGHTS, A DISTINCTLY DIFFERENT QUESTION WOULD ARISE."  THAT
QUESTION WHICH WE SO DISTINCTLY RESERVED IN THE WISCONSIN CASE HAS NOW
ARISEN IN THIS CASE. 

THE ATTORNEY GENERAL OF FLORIDA FILED A BILL FOR INJUNCTION AGAINST
THE PETITIONER UNION AND ITS BUSINESS AGENT, HILL, IN A STATE COURT. 
HE SOUGHT TO RESTRAIN BOTH OF THEM FROM FUNCTIONING AS SUCH UNTIL THEY
HAD COMPLIED WITH THE FLORIDA STATUTE.  THE BASIS FOR THE RELIEF SOUGHT
AGAINST HILL WAS THAT HE HAD FOR A PECUNIARY REWARD ACTED AS A BUSINESS
AGENT IN VIOLATION OF SEC. 4; THE BASIS FOR THE RELIEF SOUGHT AGAINST
THE UNION WAS THAT IT HAD OPERATED WITHOUT OBTAINING A STATE LICENSE AS
REQUIRED BY SEC. 6.  SECTION 4, WHICH WAS INVOKED AGAINST HILL,
PROVIDES THAT NO ONE SHALL BE LICENSED AS A "BUSINESS AGENT" OF A LABOR
UNION WHO HAS NOT BEEN A CITIZEN OF THE UNITED STATES FOR MORE THAN 10
YEARS, WHO HAS BEEN CONVICTED OF A FELONY, OR WHO IS NOT A PERSON OF
GOOD MORAL CHARACTER.  APPLICATION FOR A LICENSE AS A "BUSINESS AGENT"
MUST BE ACCOMPANIED BY A $1.00 FEE AND A STATEMENT SIGNED BY OFFICERS
OF THE UNION SETTING FORTH THE AGENT'S AUTHORITY.  THE STATUTE THEN
PROVIDES THAT THE APPLICATION BE HELD FOR 30 DAYS TO PERMIT THE FILING
OF OBJECTIONS TO THE ISSUANCE OF A LICENSE.  A BOARD, COMPOSED OF THE
GOVERNOR, THE SECRETARY OF STATE, AND THE SUPERINTENDENT OF EDUCATION,
THEN PASSES ON THE APPLICATION, AND IF IT FINDS THE APPLICANT MEASURES
UP TO THE STANDARDS OF THE ACT, AS IT SEES THEM, IT AUTHORIZES THE
LICENSE TO BE ISSUED, TO "EXPIRE ON DECEMBER 31 OF THE YEAR FOR WHICH
ISSUED UNLESS SOONER SURRENDERED, SUSPENDED, OR REVOKED."  SECTION 2(2)
DEFINES "BUSINESS AGENT" AS "ANY PERSON WHO SHALL FOR A PECUNIARY OR
FINANCIAL CONSIDERATION ACT OR ATTEMPT TO ACT" FOR A UNION "IN
SOLICITING OR RECEIVING FROM ANY EMPLOYER ANY RIGHT OR PRIVILEGE FOR
EMPLOYEES  ..."  OR "IN THE ISSUANCE OF MEMBERSHIP OR AUTHORIZATION
CARDS, WORK PERMITS OR ANY OTHER EVIDENCE OF RIGHTS GRANTED OR CLAIMED
IN, OR BY, A LABOR ORGANIZATION  ..."  SECTION 6, WHICH THE ATTORNEY
GENERAL INVOKED AGAINST THE UNION, REQUIRES EVERY LABOR UNION
"OPERATING" IN THE STATE TO FILE A WRITTEN REPORT WITH THE SECRETARY OF
STATE, DISCLOSING ITS NAME, THE LOCATION OF ITS OFFICES, AND THE NAMES
AND ADDRESSES OF ITS OFFICERS.  SECTION 14 MAKES IT A MISDEMEANOR FOR
"ANY PERSON OR LABOR ORGANIZATION" TO VIOLATE THE STATUTE. 

MOTIONS BY HILL AND THE UNION TO DISMISS THE BILL ON THE GROUND THAT
THE STATE STATUTE VIOLATED THE FOURTEENTH AMENDMENT AND CONFLICTED WITH
THE WAGNER ACT WERE DENIED.  ANSWERS WERE THEN FILED ADMITTING
VIOLATIONS OF SECS. 4 AND 6.  THE COURT HELD THE LICENSING AND
REPORTING PROVISIONS VALID.  HILL WAS ENJOINED FROM FURTHER ACTING AS
THE UNION'S BUSINESS AGENT UNTIL HE OBTAINED A STATE LICENSE.  THE
UNION WAS ENJOINED FROM FURTHER FUNCTIONING AND OPERATING UNTIL IT MADE
THE REPORT AND PAID THE FEE TO THE SECRETARY OF STATE.  THE STATE
SUPREME COURT AFFIRMED.  155 FLA. 254, 19 SO.2D 857. 

IT IS APPARENT THAT THE FLORIDA STATUTE HAS BEEN SO CONSTRUED AND
APPLIED THAT THE UNION AND ITS SELECTED REPRESENTATIVE ARE PROHIBITED
FROM FUNCTIONING AS COLLECTIVE BARGAINING AGENTS, OR IN ANY OTHER
CAPACITY, EXCEPT UPON CONDITIONS FIXED BY FLORIDA.  THE DECLARED
PURPOSE OF THE WAGNER ACT, AS SHOWN IN ITS FIRST SECTION, IS TO
ENCOURAGE COLLECTIVE BARGAINING, AND TO PROTECT THE "FULL FREEDOM" OF
WORKERS IN THE SELECTION OF BARGAINING REPRESENTATIVES OF THEIR OWN
CHOICE.  TO THIS END CONGRESS MADE IT ILLEGAL FOR AN EMPLOYER TO
INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN SELECTING THEIR
REPRESENTATIVES.  CONGRESS ATTACHED NO CONDITIONS WHATSOEVER TO THEIR
FREEDOM OF CHOICE IN THIS RESPECT.  THEIR OWN BEST JUDGMENT, NOT THAT
OF SOMEONE ELSE, WAS TO BE THEIR GUIDE.  "FULL FREEDOM" TO CHOOSE AN
AGENT MEANS FREEDOM TO PASS UPON THAT AGENT'S QUALIFICATIONS. 

CHOICE WHICH CONGRESS SAID EMPLOYEES SHOULD POSSESS.  IT DOES THIS BY
REQUIRING A "BUSINESS AGENT" TO PROVE TO THE SATISFACTION OF A FLORIDA
BOARD THAT HE MEASURES UP TO STANDARDS SET BY THE STATE OF FLORIDA AS
ONE WHO, AMONG OTHER THINGS, PERFORMS THE EXACT FUNCTION OF A
COLLECTIVE BARGAINING REPRESENTATIVE.  TO THE EXTENT THAT SEC. 4 LIMITS
A UNION'S CHOICE OF SUCH AN "AGENT" OR BARGAINING REPRESENTATIVE, IT
SUBSTITUTES FLORIDA'S JUDGMENT FOR THE WORKERS' JUDGMENT. 

THUS, THE "FULL FREEDOM" OF EMPLOYEES IN COLLECTIVE BARGAINING WHICH
CONGRESS ENVISIONED AS ESSENTIAL TO PROTECT THE FREE FLOW OF COMMERCE
AMONG THE STATES WOULD BE, BY THE FLORIDA STATUTE, SHRUNK TO A GREATLY
LIMITED FREEDOM.  NO ELABORATION SEEMS REQUIRED TO DEMONSTRATE THAT
SEC. 4 AS APPLIED HERE "STANDS AS AN OBSTACLE TO THE ACCOMPLISHMENT AND
EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF CONGRESS."  HINES V.
DAVIDOWITZ, 312 U.S. 52, 67; CLOVERLEAF BUTTER CO. V. PATTERSON, 315
U.S. 148; NAPIER V. ATLANTIC COAST LINE R. CO., 272 U.S. 605.  IT IS
NOT AMISS, HOWEVER, TO CALL ATTENTION TO THE FACT THAT OPERATION OF
THIS VERY SECTION HAS ALREADY INTERFERED WITH THE COLLECTIVE BARGAINING
PROCESS.  AN EMPLOYER BEFORE THE LABOR BOARD DEFENDED ITS REFUSAL TO
BARGAIN WITH A DULY SELECTED REPRESENTATIVE OF WORKERS ON THE GROUND
THAT THE REPRESENTATIVE HAD NOT SECURED A FLORIDA LICENSE AS A BUSINESS
AGENT.  IN THE MATTER OF EPPINGER & RUSSELL CO., 56 N.L.R.B. 1259.  THE
BOARD PROPERLY REJECTED THE EMPLOYER'S CONTENTION, HOLDING THAT
CONGRESS DID NOT INTEND TO SUBJECT THE "FULL FREEDOM" OF EMPLOYEES TO
THE ERODING PROCESS OF "VARIED AND PERHAPS CONFLICTING PROVISIONS OF
STATE ENACTMENTS."  CF. LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S.
111. 

SINCE THE LABOR BOARD HAS HELD THAT AN EMPLOYER MUST BARGAIN WITH A
PROPERLY SELECTED UNION AGENT DESPITE HIS FAILURE TO SECURE A FLORIDA
LICENSE, IT IS ARGUED THAT THE STATE LAW DOES NOT INTERFERE WITH THE
COLLECTIVE BARGAINING PROCESS.  BUT HERE, THIS AGENT HAS BEEN ENJOINED,
AND IF THE FLORIDA LAW IS VALID HE COULD BE FOUND GUILTY OF A CONTEMPT
FOR DOING THAT WHICH THE ACT OF CONGRESS PERMITS HIM TO DO.
FURTHERMORE, HE COULD, UNDER SEC. 14 OF THE STATE LAW, BE CONVICTED OF
A MISDEMEANOR AND SUBJECTED TO FINE AND IMPRISONMENT.  THE COLLECTIVE
BARGAINING WHICH CONGRESS HAS AUTHORIZED CONTEMPLATES TWO PARTIES FREE
TO BARGAIN, AND CANNOT THUS BE FRUSTRATED BY STATE LEGISLATION.  WE
HOLD THAT SEC. 4 OF THE FLORIDA ACT IS REPUGNANT TO THE NATIONAL LABOR
RELATIONS ACT. 

THE FILING OF INFORMATION AND THE PAYMENT OF A $1.00 ANNUAL FEE DOES
NOT, IN AND OF ITSELF, CONFLICT WITH THE FEDERAL ACT.  BUT, FOR FAILURE
TO COMPLY, THIS UNION HAS BEEN ENJOINED FROM FUNCTIONING AS A LABOR
UNION.  IT COULD NOT WITHOUT VIOLATING THE INJUNCTION AND ALSO
SUBJECTING ITSELF TO THE POSSIBILITY OF CRIMINAL PUNISHMENT EVEN
ATTEMPT TO BARGAIN TO SETTLE A CONTROVERSY OR A STRIKE.  IT IS THE
SANCTION HERE IMPOSED, AND NOT THE DUTY TO REPORT, WHICH BRINGS ABOUT A
SITUATION INCONSISTENT WITH THE FEDERALLY PROTECTED PROCESS OF
COLLECTIVE BARGAINING.  CF. WESTERN UNION CO. V. MASSACHUSETTS, 125
U.S. 530, 553, 554; KANSAS CITY SOUTHERN R. CO. V. KAW VALLEY DRAINAGE
DISTRICT, 233 U.S. 75, 78; ST. LOUIS S.W.R. CO. V. ARKANSAS, 235 U.S.
350, 368.  THIS IS TRUE BECAUSE IF THE UNION OR ITS REPRESENTATIVES
ACTED AS BARGAINING AGENTS WITHOUT MAKING THE REQUIRED REPORTS,
PRESUMABLY THEY WOULD BE LIABLE BOTH TO PUNISHMENT FOR CONTEMPT OF
COURT AND TO CONVICTION UNDER THE MISDEMEANOR SECTION OF THE ACT.  SUCH
AN OBSTACLE TO COLLECTIVE BARGAINING CANNOT BE CREATED CONSISTENTLY
WITH THE FEDERAL ACT. 

NOR CAN IT BE ARGUED THAT OUR DECISION IN THOMAS V. COLLINS, 323 U.S.
516, FORECLOSES SUCH RESULT.  IN THAT CASE WE DID NOT HAVE, AS HERE, TO
DEAL WITH SUCH A DIRECT IMPEDIMENT TO THE FREE EXERCISE OF THE
FEDERALLY ESTABLISHED RIGHT TO COLLECTIVE BARGAINING. 

OUR HOLDING IS THAT THE NATIONAL LABOR RELATIONS ACT AND SECS. 4 AND
6 OF THE FLORIDA ACT AS HERE APPLIED CANNOT "MOVE FREELY WITHIN THE
ORBITS OF THEIR RESPECTIVE PURPOSES WITHOUT IMPINGING UPON ONE
ANOTHER."  UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, 207.  FN2
ACCORDINGLY THE CASE IS REVERSED AND REMANDED FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  HOUSE BILL NO. 142, LAWS OF FLORIDA, 1943, CHAP. 21968, 565. 

FN2  THE NATIONAL LABOR RELATIONS ACT APPLIES ONLY TO ACTIVITIES
WHICH AFFECT INTERSTATE COMMERCE.  LABOR BOARD V. JONES & LAUGHLIN
CORP., 301 U.S. 1, 29, 30.  THE ORIGINAL BILL FOR AN INJUNCTION PRAYED
THAT THIS UNION MIGHT BE RESTRAINED FROM FUNCTIONING AS A UNION IN
CONNECTION WITH EMPLOYEES OF THE ST. JOHNS RIVER SHIPBUILDING CO. OF
JACKSONVILLE, FLORIDA, WHICH COMPANY HAS BEEN HELD BY THE LABOR BOARD
TO BE ENGAGED IN INTERSTATE COMMERCE AND SUBJECT TO THE FEDERAL ACT. 
MATTER OF ST. JOHNS RIVER SHIPBUILDING CO., 52 N.L.R.B. 12; 52 N.L.R.B.
958; 55 N.L.R.B. 1451; 59 N.L.R.B. NO. 83; 60 N.L.R.B. NO. 55.  THE
CASE WAS SUBMITTED ON THE PLEADINGS, WHICH ASSUME THAT INTERSTATE
COMMERCE QUESTIONS WERE INVOLVED.  THE SUPREME COURT OF FLORIDA SO
TREATED THE CASE IN HOLDING THAT THERE WAS NO CONSTITUTIONALLY
PROHIBITED CONFLICT BETWEEN THE FLORIDA AND FEDERAL ACTS. 

MR. CHIEF JUSTICE STONE. 

I CONCUR IN SO MUCH OF THE OPINION AS FINDS CONFLICT BETWEEN THE
LICENSING PROVISIONS OF THE FLORIDA STATUTE AND THE NATIONAL LABOR
RELATIONS ACT.  I DO SO ONLY ON THE GROUND THAT THE COMMAND OF SEC. 7
OF THE NATIONAL LABOR RELATIONS ACT THAT "EMPLOYEES SHALL HAVE THE
RIGHT  ...  TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR
OWN CHOOSING" CONFLICTS WITH THE LICENSING PROVISIONS OF THE FLORIDA
ACT PURPORTING TO FIX THE QUALIFICATIONS OF BUSINESS AGENTS OF LABOR
ORGANIZATIONS. 

THIS, OF COURSE, DOES NOT MEAN THAT LABOR UNIONS OR THEIR OFFICERS
ARE IMMUNE, IN OTHER RESPECTS, FROM THE EXERCISE OF THE STATE'S POLICE
POWER TO PUNISH FRAUD, VIOLENCE, OR OTHER FORMS OF MISCONDUCT, EITHER
BECAUSE OF THE COMMERCE CLAUSE OR THE NATIONAL LABOR RELATIONS ACT.  IT
IS FAMILIAR GROUND THAT THE COMMERCE CLAUSE DOES NOT ITSELF PRECLUDE A
STATE FROM REGULATING THOSE MATTERS WHICH, NOT BEING THEMSELVES
INTERSTATE COMMERCE, NEVERTHELESS AFFECT THE COMMERCE, CALIFORNIA V.
THOMPSON, 313 U.S. 109, 113-114, 116, AND CASES CITED; PARKER V. BROWN,
317 U.S. 341, 360, AND CASES CITED, AND THAT THE STATE'S AUTHORITY IS
CURTAILED ONLY AS CONGRESS MAY BY LAW PRESCRIBE IN THE EXERCISE OF THE
COMMERCE POWER.  UNITED STATES V. DARBY, 312 U.S. 100, 119, AND CASES
CITED.  I CAN FIND NOTHING IN THE NATIONAL LABOR RELATIONS ACT OR ITS
LEGISLATIVE HISTORY TO SUGGEST A CONGRESSIONAL PURPOSE TO WITHDRAW THE
PUNISHMENT OF FRAUD OR VIOLENCE, OR THE VIOLATION OF ANY STATE LAW
OTHERWISE VALID, FROM THE STATE'S POWER MERELY BECAUSE THE STATE MIGHT
SUBJECT THE BUSINESS AGENT OF A LABOR UNION, WHO VIOLATES ITS LAW, TO
IMPRISONMENT, WHICH WOULD PREVENT HIS FUNCTIONING AS A BARGAINING AGENT
FOR EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT.  ALLEN-BRADLEY
LOCAL V. BOARD, 315 U.S. 740, 748.  SEE S. REP. NO. 573, 74TH CONG.,
1ST SESS.; H. REP. NO. 1147, 74TH CONG., 1ST SESS. 

FOR THE SAME REASONS, THE NATIONAL LABOR RELATIONS ACT DOES NOT
PRECLUDE A STATE FROM REQUIRING A LABOR UNION, OR ITS OFFICERS AND
AGENTS, AS SUCH, TO PROCURE LICENSES OR MAKE REPORTS OR PERFORM OTHER
DUTIES WHICH DO NOT MATERIALLY OBSTRUCT THE EXERCISE OF RIGHTS
CONFERRED BY THE NATIONAL LABOR RELATIONS ACT OR OTHER FEDERAL
LEGISLATION.  THOMAS V. COLLINS, 323 U.S. 516, 542.  BUT IT IS QUITE
ANOTHER MATTER TO SAY THAT A STATE MAY FIX STANDARDS OR QUALIFICATIONS
FOR LABOR UNIONS AND THEIR OFFICERS AND AGENTS WHICH WOULD PRECLUDE ANY
OF THEM FROM BEING CHOSEN AND FROM FUNCTIONING AS BARGAINING AGENTS
UNDER SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT.  THE RIGHT CONFERRED
ON EMPLOYEES TO BARGAIN COLLECTIVELY THROUGH A REPRESENTATIVE OF THEIR
OWN CHOOSING IS THE FOUNDATION OF THE NATIONAL LABOR RELATIONS ACT. 
WITHOUT THAT RIGHT, OR IF IT WERE RESTRICTED BY STATE ACTION, THE ACT
AS DRAWN WOULD HAVE LITTLE SCOPE FOR OPERATION.  THE FACT THAT THE
NATIONAL LABOR RELATIONS ACT IMPOSES SANCTIONS ON THE EMPLOYER ALONE
DOES NOT MEAN THAT IT DID NOT, BY SEC. 7, CONFER THE RIGHT ON EMPLOYEES
AS AGAINST OTHERS AS WELL AS THE EMPLOYER TO MAKE AN UNINHIBITED CHOICE
OF THEIR BARGAINING AGENTS.  CF. UNITED STATES V. HUTCHESON, 312 U.S.
219.  SECTION 7 CONFERS THE RIGHT OF CHOICE GENERALLY ON EMPLOYEES AND
NOT MERELY AS AGAINST THE EMPLOYER.    I DISSENT FROM SO MUCH OF THE
OPINION AS HOLDS THAT SEC. 6 OF THE FLORIDA STATUTE, AS APPLIED, IS
INVALID BECAUSE IT CONFLICTS WITH THE NATIONAL LABOR RELATIONS ACT. 
THE REQUIREMENT OF FILING BY A LABOR ORGANIZATION OF THE INFORMATION
PRESCRIBED BY SEC. 6, ACCOMPANIED BY A FILING FEE OF $1.00, IS, AS THE
OPINION OF THE COURT RECOGNIZES, NOT INCOMPATIBLE WITH THE NATIONAL
LABOR RELATIONS ACT, SINCE IT IN NO SUBSTANTIAL WAY HINDERS OR
INTERFERES WITH THE PERFORMANCE OF THE UNION'S FUNCTIONS UNDER THAT
ACT.  THOMAS V. COLLINS, SUPRA, 542; CF. NORTHWESTERN BELL TEL. CO. V.
NEBRASKA COMM'N, 297 U.S. 471, 478; SEE SMITH V. ILLINOIS BELL TEL.
CO., 282 U.S. 133; WESTERN DISTRIBUTING CO. V. PUBLIC SERVICE COMM'N,
285 U.S. 119; DAYTON POWER CO. V. PUBLIC UTILITIES COMM'N, 292 U.S.
290; NATURAL GAS CO. V. SLATTERY, 302 U.S. 300, 306. 

NOTWITHSTANDING THE CONFLICT BETWEEN THE COMMERCE CLAUSE OR THE
FEDERAL STATUTE AND THE LOCAL REGULATION WHICH WAS FOUND IN WESTERN
UNION CO. V. MASSACHUSETTS, 125 U.S. 530, 554, AND ST. LOUIS S.W.R. CO.
V. ARKANSAS, 235 U.S. 350, 368, I CAN FIND NO LOGICAL OR PERSUASIVE
LEGAL GROUND OR PRACTICAL REASON FOR SAYING THAT CONGRESS BY THE
ENACTMENT OF THE NATIONAL LABOR RELATIONS ACT INTENDED TO PRECLUDE THE
STATE FROM EXERCISING TO THE UTMOST EXTENT ITS SOVEREIGN POWER TO
ENFORCE THE LAWFUL DEMANDS OF SEC. 6 OF THE FLORIDA ACT.  THERE IS NO
MORE OCCASION FOR IMPLYING SUCH A CONGRESSIONAL PURPOSE WHERE THE UNION
IS PREVENTED FROM FUNCTIONING BY PUNISHMENT OR INJUNCTION, FOR A
VIOLATION OF A VALID STATE LAW, THAN FOR SAYING THAT CONGRESS, BY THE
NATIONAL LABOR RELATIONS ACT, INTENDED TO FORBID THE STATES TO ARREST
AND IMPRISON A LABOR LEADER FOR THE VIOLATION OF ANY OTHER VALID STATE
LAW, BECAUSE THAT WOULD PREVENT HIS OR THE UNION'S FUNCTIONING UNDER
THE NATIONAL LABOR RELATIONS ACT.  THE QUESTION IS WHOLLY ONE OF STATE
POWER.  HERE THE STATE POWER IS NOT RESTRICTED BY THE COMMERCE CLAUSE
STANDING ALONE, NOR, SO FAR AS I CAN SEE, BY ANY CONGRESSIONAL
INTENTION EXPRESSED IN THE PROVISIONS OF THE NATIONAL LABOR RELATIONS
ACT.  UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202, 206. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

THE COURT IS STRIKING DOWN A STATE LAW NOT BECAUSE SUCH A STATUTE IN
AND OF ITSELF IS BEYOND THE POWER OF A STATE TO ENACT.  THE FLORIDA
STATUTE IS NULLIFIED BECAUSE, SO FLORIDA IS TOLD, CONGRESS HAS BARRED
FLORIDA FROM THIS LAWMAKING, ALTHOUGH CONGRESS HAS NEITHER EXPRESSLY
NOR BY FAIR INFERENCE FORBIDDEN FLORIDA TO DEAL WITH THE MATTER WITH
WHICH FLORIDA HAS DEALT AND CONGRESS HAS NOT.  CONCRETELY, CONGRESS BY
PROTECTING EMPLOYEES IN THEIR RIGHT TO CHOOSE REPRESENTATIVES FOR
COLLECTIVE BARGAINING FREE FROM THE COERCION OR INFLUENCE OF EMPLOYERS
DID NOT IMPLIEDLY WIPE OUT THE RIGHT OF STATES UNDER THEIR POLICE POWER
TO REQUIRE QUALIFICATIONS APPROPRIATE FOR UNION OFFICIALS HAVING
FIDUCIARY DUTIES. 

IT WAS SETTLED EARLY IN OUR CONSTITUTIONAL HISTORY THAT THE MERE FACT
THAT CONGRESS HAS POWER TO REGULATE COMMERCE AMONG THE SEVERAL STATES
DOES NOT EXCLUDE STATE LEGISLATION IN THE EXERCISE OF THE POLICE POWER,
EVEN THOUGH IT MAY AFFECT SUCH COMMERCE, WHERE THE SUBJECT MATTER DOES
NOT DEMAND A NATION-WIDE RULE.  WILLSON V. BLACKBIRD CREEK MARSH CO., 2
PET. 245; COOLEY V. BOARD OF WARDENS, 12 HOW.  299, 319.  THE STATES,
IN SHORT, MAY SPEAK ON MATTERS EVEN IN THE GENERAL DOMAIN OF COMMERCE
SO LONG AS CONGRESS IS SILENT.  BUT WHEN CONGRESS HAS SPOKEN, ALTHOUGH
NOT AS FULLY AS THE CONSTITUTION AUTHORIZES, THAT IS, WHEN A FEDERAL
ENACTMENT FALLS SHORT OF THE CONGRESSIONAL POWER TO LEGISLATE TOUCHING
COMMERCE, THE STATES MAY STILL SPEAK WHERE CONGRESS IS STILL SILENT. 
THE REAL QUESTION IS:  HAS CONGRESS SPOKEN SO AS TO SILENCE THE
STATES?  THE SAME REGARD FOR THE HARMONIOUS BALANCE OF OUR FEDERAL
SYSTEM, WHEREBY THE STATES MAY PROTECT LOCAL INTERESTS DESPITE THE
DORMANT COMMERCE CLAUSE, ALLOWS STATE LEGISLATION FOR THE PROTECTION OF
LOCAL INTERESTS SO LONG AS CONGRESS HAS NOT SUPPLANTED LOCAL REGULATION
EITHER BY A REGULATION OF ITS OWN OR BY AN UNMISTAKABLE INDICATION THAT
THERE IS TO BE NO REGULATION AT ALL.  THE RELATION OF SUCH ENACTMENTS
OF LOCAL CONCERN TO FEDERAL ENACTMENTS WHICH FALL SHORT OF THE FULL
REACH OF THE CONSTITUTION RAISES A PROBLEM OF JUDICIAL JUDGMENT SIMILAR
TO THAT PRESENTED WHERE A STATE LAW ENCOUNTERS NO FEDERAL STATUTE.  THE
PROBLEM IS ONE OF JUDICIAL ACCOMMODATION BETWEEN RESPECT FOR THE
SUPPLANTING AUTHORITY OF CONGRESS AND THE RESERVED POLICE POWER OF THE
STATES.  LONG AGO THIS POLICY OF ACCOMMODATION WAS FORMULATED BY THIS
COURT:  "WE AGREE, THAT IN THE APPLICATION OF THIS PRINCIPLE OF
SUPREMACY OF AN ACT OF CONGRESS IN A CASE WHERE THE STATE LAW IS BUT
THE EXERCISE OF A RESERVED POWER, THE REPUGNANCE OR CONFLICT SHOULD BE
DIRECT AND POSITIVE, SO THAT THE TWO ACTS COULD NOT BE RECONCILED OR
CONSISTENTLY STAND TOGETHER."  SINNOT V. DAVENPORT, 22 HOW.  227, 243. 

BUT CONFLICTS BETWEEN STATE LAWS REGULATING ASPECTS OF BUSINESS
ENTERPRISE AND FEDERAL ENACTMENTS RELATING TO SUCH ASPECTS WERE FEW AND
FAR BETWEEN IN THE FIRST HUNDRED YEARS OF OUR HISTORY.  APART FROM
TAXES AND TARIFFS, THE REGULATION OF FISHERIES, AND MEASURES DEALING
WITH THE COASTWISE TRADE, THERE WAS LITTLE INTERVENTION BY FEDERAL
LEGISLATION IN THE AFFAIRS OF MEN UNTIL, IN 1887, THE INTERSTATE
COMMERCE ACT INITIATED THE TIDE OF FEDERAL REGULATION.  SINCE THEN,
THIS COURT HAS OFTEN HAD TO DEAL WITH THE CLAIM THAT A FEDERAL STATUTE,
THOUGH ONLY PARTIALLY REGULATING A PARTICULAR PHASE OF COMMERCE,
SUPERSEDED STATE LEGISLATION IN THE EXERCISE OF THE POLICE POWER
BEARING UPON THAT PHASE. 

IN A GREAT VARIETY OF CASES, THE COURT HAS APPLIED THE ACCOMMODATION
FORMULATED IN SINNOT V. DAVENPORT, SUPRA, AND EITHER REASSERTED OR
REINFORCED THAT POLICY.  THE EMPHASIS HAS BEEN ON RECOGNIZING THAT BOTH
THE STATE LAW AND THE FEDERAL STATUTE MUST BE ALLOWED TO PREVAIL IF
THEY MAY PREVAIL TOGETHER - THAT IS, IF THEY DO NOT, AS A MATTER OF
LANGUAGE OR PRACTICAL ENFORCEMENT, COLLIDE, OR IF CONGRESS HAS NOT
MANIFESTED AN UNAMBIGUOUS PURPOSE THAT THERE BE NO REGULATION, EITHER
STATE OR FEDERAL, AS TO MATTERS FOR WHICH IT HAS NOT PRESCRIBED.  THIS
JUDICIAL PRINCIPLE IS ESTABLISHED BY AN IMPRESSIVE BODY OF OPINIONS.  A
FEW SAMPLES MUST SUFFICE: 

1.  "MAY NOT THESE STATUTORY PROVISIONS STAND WITHOUT OBSTRUCTING OR
EMBARRASSING THE EXECUTION OF THE ACT OF CONGRESS?  THIS QUESTION MUST
OF COURSE BE DETERMINED WITH REFERENCE TO THE SETTLED RULE THAT A
STATUTE ENACTED IN EXECUTION OF A RESERVED POWER OF THE STATE IS NOT TO
BE REGARDED AS INCONSISTENT WITH AN ACT OF CONGRESS PASSED IN THE
EXECUTION OF A CLEAR POWER UNDER THE CONSTITUTION, UNLESS THE
REPUGNANCE OR CONFLICT IS SO DIRECT AND POSITIVE THAT THE TWO ACTS
CANNOT BE RECONCILED OR STAND TOGETHER."  MISSOURI, K. & T.R. CO. V.
HABER, 169 U.S. 613, 623. 

2.  "IT SHOULD NEVER BE HELD THAT CONGRESS INTENDS TO SUPERSEDE OR BY
ITS LEGISLATION SUSPEND THE EXERCISE OF THE POLICE POWERS OF THE
STATES, EVEN WHEN IT MAY DO SO, UNLESS ITS PURPOSE TO EFFECT THAT
RESULT IS CLEARLY MANIFESTED.... 

"THE PRINCIPLE IS UNIVERSAL THAT LEGISLATION, WHETHER BY CONGRESS OR
BY A STATE, MUST BE TAKEN TO BE VALID, UNLESS THE CONTRARY IS MADE
CLEARLY TO APPEAR; AND AS THE CONTRARY DOES NOT SO APPEAR, THE STATUTE
OF COLORADO IS TO BE TAKEN AS A CONSTITUTIONAL EXERCISE OF THE POWER OF
THE STATE."  REID V. COLORADO, 187 U.S. 137, 148, 153. 

3.  "IS, THEN, A DENIAL TO THE STATE OF THE EXERCISE OF ITS POWER FOR
THE PURPOSES IN QUESTION NECESSARILY IMPLIED IN THE FEDERAL STATUTE? 
FOR WHEN THE QUESTION IS WHETHER A FEDERAL ACT OVERRIDES A STATE LAW,
THE ENTIRE SCHEME OF THE STATUTE MUST OF COURSE BE CONSIDERED AND THAT
WHICH NEEDS MUST BE IMPLIED IS OF NO LESS FORCE THAN THAT WHICH IS
EXPRESSED.  IF THE PURPOSE OF THE ACT CANNOT OTHERWISE BE ACCOMPLISHED
IF ITS OPERATION WITHIN ITS CHOSEN FIELD ELSE MUST BE FRUSTRATED AND
ITS PROVISIONS BE REFUSED THEIR NATURAL EFFECT - THE STATE LAW MUST
YIELD TO THE REGULATION OF CONGRESS WITHIN THE SPHERE OF ITS DELEGATED
POWER.... 

"BUT THE INTENT TO SUPERSEDE THE EXERCISE BY THE STATE OF ITS POLICE
POWER AS TO MATTERS NOT COVERED BY THE FEDERAL LEGISLATION IS NOT TO BE
INFERRED FROM THE MERE FACT THAT CONGRESS HAS SEEN FIT TO CIRCUMSCRIBE
ITS REGULATION AND TO OCCUPY A LIMITED FIELD.  IN OTHER WORDS, SUCH
INTENT IS NOT TO BE IMPLIED UNLESS THE ACT OF CONGRESS FAIRLY
INTERPRETED IS IN ACTUAL CONFLICT WITH THE LAW OF THE STATE.  THIS
PRINCIPLE HAS HAD ABUNDANT ILLUSTRATION."  SAVAGE V. JONES, 225 U.S.
501, 533. 

4.  "THESE CASES RECOGNIZE THE ESTABLISHED RULE THAT A STATE LAW
ENACTED UNDER ANY OF THE RESERVED POWERS - ESPECIALLY IF UNDER THE
POLICE POWER - IS NOT TO BE SET ASIDE AS INCONSISTENT WITH AN ACT OF
CONGRESS, UNLESS THERE IS ACTUAL REPUGNANCY, OR UNLESS CONGRESS HAS, AT
LEAST, MANIFESTED A PURPOSE TO EXERCISE ITS PARAMOUNT AUTHORITY OVER
THE SUBJECT.  THE RULE RESTS UPON FUNDAMENTAL GROUNDS THAT SHOULD NOT
BE DISREGARDED."  MISSOURI, K. & T.R. CO. V. HARRIS, 234 U.S. 412, 418
419. 

5.  "IN CONSTRUING FEDERAL STATUTES ENACTED UNDER THE POWER CONFERRED
BY THE COMMERCE CLAUSE OF THE CONSTITUTION THE RULE IS THAT IT SHOULD
NEVER BE HELD THAT CONGRESS INTENDS TO SUPERSEDE OR SUSPEND THE
EXERCISE OF THE RESERVED POWERS OF A STATE, EVEN WHERE THAT MAY BE
DONE, UNLESS, AND EXCEPT SO FAR AS, ITS PURPOSE TO DO SO IS CLEARLY
MANIFESTED."  ILLINOIS CENTRAL R. CO. V. PUBLIC UTILITIES COMM'N, 245
U.S. 493, 510. 

6.  "THE PRINCIPLE THUS APPLICABLE HAS BEEN FREQUENTLY STATED.  IT IS
THAT THE CONGRESS MAY CIRCUMSCRIBE ITS REGULATION AND OCCUPY A LIMITED
FIELD, AND THAT THE INTENTION TO SUPERSEDE THE EXERCISE BY THE STATE OF
ITS AUTHORITY AS TO MATTERS NOT COVERED BY THE FEDERAL LEGISLATION IS
NOT TO BE IMPLIED UNLESS THE ACT OF CONGRESS FAIRLY INTERPRETED IS IN
CONFLICT WITH THE LAW OF THE STATE."  ATCHISON, T. & S.F.R. CO. V.
RAILROAD COMM'N, 283 U.S. 380, 392-393. 

7.  "UNLESS LIMITED BY THE EXERCISE OF FEDERAL AUTHORITY UNDER THE
COMMERCE CLAUSE, THE STATE HAS POWER TO MAKE AND ENFORCE THE ORDER. 
THE PURPOSE OF CONGRESS TO SUPERSEDE OR EXCLUDE STATE ACTION AGAINST
THE RAVAGES OF THE DISEASE IS NOT LIGHTLY TO BE INFERRED.  THE
INTENTION SO TO DO MUST DEFINITELY AND CLEARLY APPEAR."  MINTZ V.
BALDWIN, 289 U.S. 346, 350. 

8.  "THE POWER CONFERRED UPON THE CONGRESS IS SUCH THAT WHEN EXERTED
IT EXCLUDES AND SUPERSEDES STATE LEGISLATION IN RESPECT OF THE SAME
MATTER.  BUT CONGRESS MAY SO CIRCUMSCRIBE ITS REGULATION AS TO LEAVE A
PART OF THE SUBJECT OPEN TO STATE ACTION.  ATLANTIC COAST LINE V.
GEORGIA, 234 U.S. 280, 290.  CF. NAPIER V. ATLANTIC COAST LINE, 272
U.S. 605.  THE PURPOSE EXCLUSIVELY TO REGULATE NEED NOT BE SPECIFICALLY
DECLARED.  NEW YORK CENTRAL R. CO. V. WINFIELD, 244 U.S. 147.  BUT,
ORDINARILY SUCH INTENTION WILL NOT BE IMPLIED UNLESS, WHEN FAIRLY
INTERPRETED, THE FEDERAL MEASURE IS PLAINLY INCONSISTENT WITH STATE
REGULATION OF THE SAME MATTER."  GILVARY V. CUYAHOGA VALLEY R. CO., 292
U.S. 57, 60. 

9.  "THE CASE CALLS FOR THE APPLICATION OF THE WELL-ESTABLISHED
PRINCIPLE THAT CONGRESS MAY CIRCUMSCRIBE ITS REGULATION AND OCCUPY A
LIMITED FIELD, AND THAT THE INTENT TO SUPERSEDE THE EXERCISE BY THE
STATE OF ITS POLICE POWER AS TO MATTERS NOT COVERED BY THE FEDERAL
LEGISLATION IS NOT TO BE IMPLIED UNLESS THE LATTER FAIRLY INTERPRETED
IS IN ACTUAL CONFLICT WITH THE STATE LAW."  TOWNSEND V. YEOMANS, 301
U.S. 441, 454. 

10.  "STATES ARE THUS ENABLED TO DEAL WITH LOCAL EXIGENCIES AND TO
EXERT IN THE ABSENCE OF CONFLICT WITH FEDERAL LEGISLATION AN ESSENTIAL
PROTECTIVE POWER.  AND WHEN CONGRESS DOES EXERCISE ITS PARAMOUNT
AUTHORITY, IT IS OBVIOUS THAT CONGRESS MAY DETERMINE HOW FAR ITS
REGULATION SHALL GO.  THERE IS NO CONSTITUTIONAL RULE WHICH COMPELS
CONGRESS TO OCCUPY THE WHOLE FIELD.  CONGRESS MAY CIRCUMSCRIBE ITS
REGULATION AND OCCUPY ONLY A LIMITED FIELD.  WHEN IT DOES SO, STATE
REGULATION OUTSIDE THAT LIMITED FIELD AND OTHERWISE ADMISSIBLE IS NOT
FORBIDDEN OR DISPLACED.  THE PRINCIPLE IS THOROUGHLY ESTABLISHED THAT
THE EXERCISE BY THE STATE OF ITS POLICE POWER, WHICH WOULD BE VALID IF
NOT SUPERSEDED BY FEDERAL ACTION, IS SUPERSEDED ONLY WHERE THE
REPUGNANCE OR CONFLICT IS SO 'DIRECT AND POSITIVE' THAT THE TWO ACTS
CANNOT 'BE RECONCILED OR CONSISTENTLY STAND TOGETHER.'"  KELLY V.
WASHINGTON, 302 U.S. 1, 10. 

THESE RULES OF RESPECT FOR THE ALLOWABLE AREA OF STATE LAW HAVE NOT
BEEN CEREMONIAL PHRASES DISHONORED IN OBSERVANCE.  DEVIATIONS FROM THIS
POLICY HAVE BEEN VERY RARE, CONSIDERING THE FACT THAT WE ARE DEALING
NOT WITH A MATHEMATICAL FORMULA BUT WITH THE APPLICATION OF A
CONSTITUTIONAL DOCTRINE BY JUDICIAL JUDGMENT.  THE DEVIATIONS HAVE BEEN
SO RARE ALL THESE DECADES, DESPITE THE CHANGES IN THE COURT, BECAUSE OF
FIDELITY TO THE PURPOSES OF THIS VITAL ASPECT OF OUR FEDERALISM. 

A SURVEY OF THE SCORES OF CASES IN WHICH THE CLAIM HAS BEEN MADE THAT
STATE ACTION CANNOT SURVIVE SOME CONTRADICTORY COMMAND OF CONGRESS
LEAVES NO DOUBT THAT STATE ACTION HAS NOT BEEN SET ASIDE ON MERE
GENERALITIES ABOUT CONGRESS HAVING "OCCUPIED THE FIELD," OR ON THE
BASIS OF LOOSE TALK INSTEAD OF DEMONSTRATIONS ABOUT "CONFLICT" BETWEEN
STATE AND FEDERAL ACTION.  WE ARE IN THE DOMAIN OF GOVERNMENT AND
PRACTICAL AFFAIRS, AND THIS COURT HAS NOT STIFLED STATE ACTION, UNLESS
WHAT THE STATE HAS REQUIRED, IN THE LIGHT OF WHAT CONGRESS HAS ORDERED,
WOULD TRULY ENTAIL CONTRADICTORY DUTIES OR MAKE ACTUAL, NOT
ARGUMENTATIVE, INROADS ON WHAT CONGRESS HAS COMMANDED OR FORBIDDEN. 
SINCE THE BULK OF FEDERAL REGULATORY LEGISLATION HAS UNTIL RECENTLY
BEEN CONCERNED WITH THE GREAT INTERSTATE UTILITIES, THE CASES DEALING
WITH THE RELATION OF STATE TO FEDERAL LEGISLATION IN THIS FIELD SHED
MOST LIGHT ON THE QUESTION BEFORE US.  MOREOVER, THESE PRESENT
SITUATIONS LEAST FAVORABLE TO TOLERANCE FOR STATE LEGISLATION.  THE
NEED FOR NATIONAL CONTROL, WITH CORRESPONDING RESTRICTION OF LOCAL
REGULATION, IS PRESUMABLY MOST POWERFULLY ASSERTED WHERE INTERSTATE
TRANSPORTATION AND COMMUNICATION ARE INVOLVED. 

THE RANGE AND PARTICULARITY OF FEDERAL LEGISLATION REGULATING
RAILROADS, EXPRESSED IN A LONG SERIES OF ENACTMENTS, HAVE GIVEN RISE TO
MOST OF THE CASES IN WHICH STATE ACTION HAS BEEN FOUND IN CONFLICT WITH
FEDERAL ACTION.  ONCE CONGRESS ESTABLISHED A UNIFORM FEDERAL RULE
CONCERNING LIABILITY FOR FREIGHT LOSS OR DAMAGE IN PLACE OF THE
VARIEGATED RULES OF THE SEVERAL STATES, STATE POLICY "DIFFERENTLY
CONCEIVED" HAD TO YIELD.  CHARLESTON & W.C.R. CO. V. VARNVILLE CO., 237
U.S. 597, 604.  THE COMPREHENSIVE CONTROL OVER RAILROAD RATES,
PROGRESSIVELY EXERCISED BY CONGRESS, NECESSARILY DISPLACED MUCH PRIOR
STATE LAW.  AND SO, THE PERMISSIVE POWER OF STATES TO DEAL WITH ASPECTS
OF TRANSPORTATION IN THE ABSENCE OF FEDERAL LAW CEASED WHEN STATE
ACTION RAN COUNTER TO THE SPECIFIC REQUIREMENTS OF THE HEPBURN ACT. 
SOUTHERN R. CO. V. REID, 222 U.S. 424; CHICAGO, R.I. & P.R. CO. V.
HARDWICK ELEVATOR CO., 226 U.S. 426.  STATE REGULATION OF THE HOURS OF
RAILROAD EMPLOYEES COULD NOT SURVIVE A CONGRESSIONAL POLICY AS TO HOURS
OF SERVICE.  NORTHERN PACIFIC R. CO. V. WASHINGTON, 222 U.S. 370. 
EXPLICITNESS BY CONGRESS RELATING TO THE EQUIPPING OF FREIGHT CARS WITH
SAFETY APPLIANCES SUPERSEDED A STATE LAW DEALING DIFFERENTLY WITH SUCH
SAFETY REQUIREMENTS.  SOUTHERN R. CO. V. RAILROAD COMM'N, 236 U.S.
439.  WHEN CONGRESS SAW FIT TO DEFINE IN THE FEDERAL EMPLOYERS
LIABILITY ACT A CARRIER'S RESPONSIBILITY FOR THE DEATH OR INJURY OF ITS
EMPLOYEES, A STATE COULD NOT ASSERT A DIFFERENT BASIS OF
RESPONSIBILITY.  N.Y. CENTRAL R. CO. V. WINFIELD, 244 U.S. 147. 
UNIFORM STANDARDS SET BY THE INTERSTATE COMMERCE COMMISSION FOR THE
EQUIPMENT OF LOCOMOTIVES PRECLUDE DIFFERENT REQUIREMENTS FOR SUCH
EQUIPMENT BY THE STATES.  NAPIER V. ATLANTIC COAST LINE, 272 U.S. 605. 
BUT MERELY BECAUSE REGULATORY POWER IS POSSESSED BY A FEDERAL AGENCY
DOES NOT DISPLACE STATE REGULATION IF NO FEDERAL STANDARDS ARE SET. 
SEE WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79; EICHHOLZ V. PUBLIC SERVICE
COMM'N, 306 U.S. 268.  THAT EVEN IN THIS TECHNICAL FIELD A STATE IS NOT
DENIED THE EXERCISE OF ITS POLICE POWER BEYOND WHAT IS PRACTICALLY
REQUIRED BY THE ACTUAL USE OF FEDERAL POWER, IS ILLUSTRATED BY THE
LIMITED APPLICATION GIVEN TO PENNSYLVANIA R. CO. V. PUBLIC SERVICE
COMM'N, 250 U.S. 566, IN TERMINAL ASSN. V. TRAINMEN, 318 U.S. 1. 

THESE ARE ILLUSTRATIONS OF A CLOSELY KNIT BODY OF REGULATIONS, FULL
OF TECHNICAL IMPLICATIONS, PROTECTED AGAINST INCURSIONS FROM LOCAL
DISCRIMINATIONS AS TO THE VERY SUBJECT MATTER FOR WHICH CONGRESS DEEMED
A NATIONAL RULE ESSENTIAL.  THERE WAS, IN SHORT, CONCRETENESS OF
CONFLICT BETWEEN WHAT A STATE PRESCRIBED AND WHAT CONGRESS PRESCRIBED;
THE COLLISION WAS DEMONSTRABLE, NOT ARGUMENTATIVE. 

EVEN WHERE THE ENFORCEMENT OF A STATE STATUTE CARRIES INTERNATIONAL
IMPLICATIONS AND THUS DEALS WITH SENSITIVE CONCERNS PECULIARLY WITHIN
THE DIRECTION OF FEDERAL AUTHORITY, THIS COURT ONLY RECENTLY WAS SLOW
TO STRIKE DOWN AN EXERCISE OF THE STATE POLICE POWER.  WHEN, IN HINES
V. DAVIDOWITZ, 312 U.S. 52, THE UNITED STATES STRONGLY URGED UPON US
THAT A PENNSYLVANIA SYSTEM OF ALIEN REGISTRATION, ESTABLISHED IN 1939,
HAD BEEN SUPERSEDED BY THE FEDERAL ALIEN REGISTRATION ACT OF 1940, WE
DID NOT DISPLACE THE STATE LAW CAVALIERLY, ON THE BASIS OF LOOSE
INFERENCE AND DOGMATIC ASSERTION, BUT EXAMINED WITH PAINSTAKING CARE
THE PARTICULAR REQUIREMENTS OF PENNSYLVANIA IN ORDER TO ASCERTAIN
WHETHER, IN THEIR PRACTICAL OPERATION, THEY RAN COUNTER TO THE SCHEME
AS CONCEIVED BY CONGRESS AND IMPINGED UPON ITS ADMINISTRATION.  A
DETAILED EXAMINATION OF THE LONG COURSE OF FEDERAL LEGISLATION
AFFECTING ALIENS, OF WHICH THE ACT OF 1940 WAS THE LATEST IN A SERIES,
LED THE COURT TO CONCLUDE THAT CONGRESS HAD "PROVIDED A STANDARD FOR
ALIEN REGISTRATION IN A SINGLE INTEGRATED AND ALL-EMBRACING SYSTEM  ...
THROUGH ONE UNIFORM NATIONAL REGISTRATION SYSTEM" TO WHICH
PENNSYLVANIA HAD TO SUBORDINATE ITS LOCAL POLICY.  312 U.S. 52, 74. 
EVEN THIS CONCLUSION EVOKED A WEIGHTY DISSENT, AND ONE CANNOT READ THE
COURT'S OPINION WITHOUT AN AWARENESS THAT THE CASE PRESENTED A CLOSE
QUESTION.  SHORTLY AFTER THIS DECISION WE UNANIMOUSLY MADE IT CLEAR
THAT HINES V. DAVIDOWITZ WAS NOT INTENDED TO RELAX THE REQUIREMENT OF
PRACTICAL AND EFFECTIVE CONFLICT BETWEEN A STATE LAW AND A FEDERAL
ENACTMENT BEFORE A STATE POLICE MEASURE CAN BE NULLIFIED, AND THAT THE
INTERNATIONAL BEARING OF THE CIRCUMSTANCES MADE PERSUASIVE THE FINDING
OF CONFLICT IN THAT CASE.  WHAT WAS SAID ABOUT HINES V. DAVIDOWITZ IN
ALLEN-BRADLEY LOCAL V. BOARD, 315 U.S. 740, 749, IS PRECISELY RELEVANT
HERE: 

"IN THE HINES CASE, A FEDERAL SYSTEM OF ALIEN REGISTRATION WAS HELD
TO SUPERSEDE A STATE SYSTEM OF REGISTRATION.  BUT THERE WE WERE DEALING
WITH A PROBLEM WHICH HAD AN IMPACT ON THE GENERAL FIELD OF FOREIGN
RELATIONS.  THE DELICACY OF THE ISSUES WHICH WERE POSED ALONE RAISED
GRAVE QUESTIONS AS TO THE PROPRIETY OF ALLOWING A STATE SYSTEM OF
REGULATION TO FUNCTION ALONGSIDE OF A FEDERAL SYSTEM.  IN THAT FIELD,
ANY 'CONCURRENT STATE POWER THAT MAY EXIST IS RESTRICTED TO THE
NARROWEST OF LIMITS.'  P. 68.  THEREFORE, WE WERE MORE READY TO
CONCLUDE THAT A FEDERAL ACT IN A FIELD THAT TOUCHED INTERNATIONAL
RELATIONS SUPERSEDED STATE REGULATION THAN WE WERE IN THOSE CASES WHERE
A STATE WAS EXERCISING ITS HISTORIC POWERS OVER SUCH TRADITIONALLY
LOCAL MATTERS AS PUBLIC SAFETY AND ORDER AND THE USE OF STREETS AND
HIGHWAYS.  MAURER V. HAMILTON, (309 U.S. 598) SUPRA, AND CASES CITED. 
HERE, WE ARE DEALING WITH THE LATTER TYPE OF PROBLEM.  WE WILL NOT
LIGHTLY INFER THAT CONGRESS BY THE MERE PASSAGE OF A FEDERAL ACT HAS
IMPAIRED THE TRADITIONAL SOVEREIGNTY OF THE SEVERAL STATES IN THAT
REGARD." 

IN TRUTH, WHEN A STATE STATUTE IS ASSAILED BECAUSE OF ALLEGED
CONFLICT WITH A FEDERAL LAW, THE SAME CONSIDERATIONS OF FORBEARANCE,
THE SAME REGARD FOR THE LAWMAKING POWER OF STATES, SHOULD GUIDE THE
JUDICIAL JUDGMENT AS WHEN THIS COURT IS ASKED TO DECLARE A STATUTE
UNCONSTITUTIONAL OUTRIGHT.  THE PROBLEM OF CONFLICT ARISES ONLY WHEN
THE STATES HAVE POWER CONCURRENT WITH CONGRESS TO LEGISLATE; TO FIND
CONFLICT IS MERELY A FORM OF DENYING THE POWER OF LEGISLATION TO THE
STATES.  EXCEPT IN RARE INSTANCES, AS ALREADY INDICATED, THIS COURT HAS
BEEN EXTREMELY CAUTIOUS IN UPSETTING STATE REGULATION UNLESS IT HAS
FOUND THAT THE REGULATION DEVISED BY CONGRESS AND THAT BY WHICH THE
STATE DEALT WITH SOME LOCAL CONCERN CANNOT, IN A PRACTICAL WORLD,
COEXIST.  ONLY THEN HAS THE COURT BEEN JUSTIFIED IN HOLDING THAT
CONGRESS HAS MANIFESTED ITS WILL TO DISPLACE THE CONSTITUTIONAL
AUTHORITY OF THE STATE.  TO STRIKE DOWN A STATE LAW WHEN THAT WHICH A
STATE REQUIRES DOES NOT TRULY HINDER OR OBSTRUCT FEDERAL REGULATION IS
UNWARRANTABLY TO DEPRIVE THE STATES OF THEIR CONSTITUTIONAL POWER. 

THESE ARE THE PRINCIPLES WHICH HAVE BEEN RECOGNIZED AND APPLIED BY
THE VAST BODY OF THE DECISIONS OF THIS COURT, AND THEY ARE THE
PRINCIPLES THAT SHOULD DETERMINE THE FATE OF THE FLORIDA LEGISLATION
NOW HERE FOR JUDGMENT. 

BY LEGISLATION KNOWN AS HOUSE BILL NO. 142, FLORIDA, IN 1943,
UNDERTOOK TO REGULATE LABOR UNIONS AND THEIR OFFICERS.  LAWS OF
FLORIDA, 1943, CH. 21968, P. 565.  THAT ACT PROHIBITS ANY PERSON FROM
ACTING AS A "BUSINESS AGENT" FOR ANY "LABOR ORGANIZATION" WITHOUT
HAVING OBTAINED A LICENSE.  SEC. 9(6).  IN ORDER TO OBTAIN SUCH A
LICENSE, FOR A FEE OF ONE DOLLAR, A PERSON MUST FILE WITH THE SECRETARY
OF STATE AN APPLICATION UNDER OATH, ACCOMPANIED BY A STATEMENT SHOWING
THE APPLICANT'S AUTHORITY TO ACT AS BUSINESS AGENT, VOUCHED FOR BY THE
PRESIDENT AND SECRETARY OF THE LABOR ORGANIZATION.  TO PERMIT THE
FILING OF OBJECTIONS TO GRANTING THE LICENSE, THE APPLICATION MUST BE
HELD ON FILE FOR THIRTY DAYS.  THEREAFTER, THE APPLICATION, WITH ALL
RELEVANT DOCUMENTS, GOES TO A BOARD COMPOSED OF THE GOVERNOR, THE
SECRETARY OF STATE AND THE SUPERINTENDENT OF EDUCATION.  ON FINDING THE
APPLICANT QUALIFIED, THE BOARD MUST AUTHORIZE THE SECRETARY OF STATE TO
ISSUE A LICENSE FOR THE CALENDAR YEAR.  A LICENSE MAY NOT BE ISSUED TO
ANY PERSON WHO HAS NOT BEEN A CITIZEN AND RESIDENT OF THE UNITED STATES
FOR AT LEAST TEN YEARS, OR WHO HAS BEEN CONVICTED OF A FELONY, OR WHO
IS NOT OF GOOD MORAL CHARACTER.  SEC. 4.  ANOTHER PROVISION OF THE ACT
REQUIRES EVERY "LABOR ORGANIZATION OPERATING IN THE STATE OF FLORIDA"
TO FILE AN ANNUAL REPORT WITH THE SECRETARY OF STATE GIVING THE NAME OF
THE ORGANIZATION, THE LOCATION OF ITS OFFICE, THE NAMES AND ADDRESSES
OF THE PRESIDENT, SECRETARY, TREASURER AND BUSINESS AGENT.  A FILING
FEE OF ONE DOLLAR IS REQUIRED.  SEC. 6.  A PENAL PROVISION PROVIDES FOR
FINES NOT EXCEEDING $500, OR SIX MONTHS IMPRISONMENT, OR BOTH, FOR
VIOLATION OF THE ACT BY ANY PERSON OR LABOR ORGANIZATION.  SEC. 14. 

THE ATTORNEY GENERAL OF FLORIDA SOUGHT AND OBTAINED FROM A FLORIDA
CIRCUIT COURT AN INJUNCTION FORBIDDING THE PETITIONER, UNITED
ASSOCIATION OF JOURNEYMEN PLUMBERS AND STEAMFITTERS, LOCAL NO. 234,
FROM FUNCTIONING AS A LABOR UNION UNTIL IT HAD COMPLIED WITH THE
REQUIREMENTS OF SEC. 6, AND FORBIDDING PETITIONER HILL FROM ACTING AS
BUSINESS AGENT FOR THE ASSOCIATION UNTIL HE HAD PROCURED THE LICENSE
REQUIRED BY SEC. 4.  THE SUPREME COURT OF FLORIDA AFFIRMED THE
INJUNCTION.  19 SO.2D 857.  THIS COURT REVERSES THE FLORIDA DECISION BY
CONCLUDING THAT THE NATIONAL LABOR RELATIONS ACT, FAMILIARLY KNOWN AS
THE WAGNER ACT, 49 STAT. 449, 29 U.S.C. SEC. 151 ET SEQ., DEBARRED
FLORIDA FROM DEALING WITH THE MATTERS WITH WHICH HER LEGISLATION
DEALT. 

THE COURT REACHES THIS CONCLUSION RATHER SUMMARILY, AS THOUGH THE
CONFLICT BETWEEN THE WAGNER ACT AND THE FLORIDA ACT IS TOO OBVIOUS FOR
ARGUMENT.  CONSIDERING THE FACT THAT THIS CASE INVOLVES WHAT SO OFTEN
HAS BEEN CHARACTERIZED AS THE MOST DELICATE FUNCTION OF THIS COURT,
THAT OF INVALIDATING LEGISLATION, THE ISSUE CANNOT BE DISPOSED OF SO
EASILY. 

WHILE EMPLOYER-EMPLOYEE RELATIONS ON RAILROADS HAVE BEEN THE SUBJECT
OF CONGRESSIONAL LEGISLATION FOR MORE THAN HALF A CENTURY, GIVING RISE
TO A MORE AND MORE COMPREHENSIVE SCHEME OF FEDERAL REGULATION, AS TO
SUCH RELATIONS IN INDUSTRY GENERALLY CONGRESS ABSTAINED FROM REGULATION
UNTIL 1935.  ITS FIRST ESSAY IN THIS FIELD WAS PROFESSEDLY VERY LIMITED
IN SCOPE.  NOT CONTENT WITH SETTING FORTH THE CENTRAL AIM OF THE WAGNER
ACT IN THE LEGISLATIVE REPORTS, CONGRESS IN THE ACT ITSELF DEFINED ITS
PURPOSES.  IN VIEW OF THE INEQUALITY BETWEEN ORGANIZED EMPLOYERS AND
EMPLOYEES DEVOID OF "FULL FREEDOM OF ASSOCIATION OR ACTUAL LIBERTY OF
CONTRACT," AND OF THE "DENIAL BY EMPLOYERS OF THE RIGHT OF EMPLOYEES TO
ORGANIZE AND THE REFUSAL BY EMPLOYERS TO ACCEPT THE PROCEDURE OF
COLLECTIVE BARGAINING," IT WAS "DECLARED TO BE THE POLICY OF THE UNITED
STATES TO ELIMINATE THE CAUSES OF CERTAIN SUBSTANTIAL OBSTRUCTIONS TO
THE FREE FLOW OF COMMERCE AND TO MITIGATE AND ELIMINATE THESE
OBSTRUCTIONS WHEN THEY HAVE OCCURRED BY ENCOURAGING THE PRACTICE AND
PROCEDURE OF COLLECTIVE BARGAINING AND BY PROTECTING THE EXERCISE BY
WORKERS OF FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND
DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING, FOR THE PURPOSE
OF NEGOTIATING THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT OR OTHER
MUTUAL AID OR PROTECTION."  SEC. 1.  TO THAT END SEC. 8, THE HEART OF
THE ACT, ENUMERATED CONDUCT BY EMPLOYERS WHICH THE NATIONAL LABOR
RELATIONS BOARD WAS ESTABLISHED TO PREVENT.  SEC. 10.  IT IS AN
ACCURATE SUMMARY OF THE WAGNER ACT TO SAY THAT IT AIMED TO EQUALIZE
BARGAINING POWER BETWEEN INDUSTRIAL EMPLOYEES AND THEIR EMPLOYERS BY
PUTTING FEDERAL LAW BEHIND THE EMPLOYEES' RIGHT OF ASSOCIATION.  THE
WHOLE PLAN OR SCHEME OF THE WAGNER ACT WAS TO ENABLE EMPLOYEES TO
BARGAIN ON A FAIR BASIS, FREED FROM "RESTRAINT OR COERCION BY THEIR
EMPLOYER" THROUGH THE PROTECTION GIVEN BY THE FEDERAL GOVERNMENT. 
LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1, 33. 

ALL PROPOSALS TO MAKE OF THE WAGNER ACT A MORE COMPREHENSIVE
INDUSTRIAL CODE, BY DEALING WITH THE CONDUCT OF EMPLOYEES AND THEIR
UNIONS, WERE REJECTED.  THE RIGHTS CONGRESS CREATED, THE OBLIGATIONS IT
DEFINED, THE MACHINERY IT DEVISED FOR ENFORCING THESE RIGHTS AND
SECURING OBEDIENCE TO THESE OBLIGATIONS, ALL WERE EXCLUSIVELY CONCERNED
WITH PUTTING THE STRENGTH OF THE GOVERNMENT AGAINST THIS CONDUCT BY
EMPLOYERS.  ALL OTHER ASPECTS OF INDUSTRIAL RELATIONS WERE LEFT
UNTOUCHED BY THE WAGNER ACT, AND PURPOSELY SO. ALL ACTIVITIES OR
ASPECTS OF LABOR ORGANIZATIONS OUTSIDE OF THEIR RIGHT TO BE FREE FROM
EMPLOYER COERCION WERE LEFT WHOLLY UNREGULATED BY THAT ACT.  NEITHER
EXPRESSLY NOR BY INDIRECTION DID THE WAGNER ACT DISPLACE WHATEVER
POLICE POWER THE STATES MAY HAVE TO DEAL WITH THOSE ASPECTS OF THE LIFE
OF A TRADE UNION AS TO WHICH CONGRESS, WITH EYES WIDE OPEN, REFUSED TO
LEGISLATE.  WHEN CONGRESS PURPOSELY DEALT ONLY WITH THE EMPLOYER ASPECT
OF INDUSTRIAL RELATIONS AND PURPOSELY ABSTAINED FROM MAKING ANY RULES
TOUCHING UNION ACTIVITIES, THE INTERNAL AFFAIRS OF UNIONS, OR THE
RESPONSIBILITY OF UNION OFFICIALS TO UNION MEMBERS AND TO THE PUBLIC,
CONGRESS CERTAINLY DID NOT SPONGE OUT THE STATES' POLICE POWER AS TO
THESE MATTERS.  IT WIPES OUT STATE POWER AND DISTORTS CONGRESSIONAL
INTENTION TO DISREGARD THE LIMITED POLICY EXPLICITLY SET FORTH BY
CONGRESS.  THAT POLICY - CURBING OF EMPLOYER INTERFERENCES WITH UNION
RIGHTS - WAS SCRUPULOUSLY OBSERVED BY CONGRESS IN THE SUBSTANTIVE
PROVISIONS AS WELL AS IN THE ENFORCEMENT STRUCTURE OF THE ACT.  THERE
IS NOT A BREATH IN THE ACT REFERRING TO ANY ASPECT OF UNION ACTIVITY
UNRELATED TO EMPLOYER INTERFERENCE THEREWITH.  BY REFUSING TO LEGISLATE
BEYOND THAT, CONGRESS DID NOT FORBID THE STATES FROM SO LEGISLATING. 
IF CONGRESS TOMORROW CHOSE TO SUBJECT LABOR ORGANIZATIONS AND THEIR
OFFICERS TO REGULATIONS SIMILAR TO THOSE DEALT WITH IN THE FLORIDA LAW,
IT COULD HARDLY BE SUGGESTED THAT THE WAGNER ACT, AS IT NOW STANDS,
ALREADY COVERS THESE SUBJECTS.  SPECIFICALLY, IF CONGRESS WERE TO MAKE
CERTAIN REQUIREMENTS FOR THE FILING OF REPORTS BY LABOR ORGANIZATIONS
THAT SEEK TO AVAIL THEMSELVES OF THE RIGHTS DEFINED BY THE WAGNER ACT,
AND ALSO WERE TO DEVISE A SYSTEM OF IDENTIFICATION AND LICENSING OF
AUTHORIZED REPRESENTATIVES OF THE UNIONS, ONE WOULD BE HARD PUT TO IT
TO FIND ANYTHING IN THE WAGNER ACT TO PROVE THAT IT HAD ALREADY DEALT
WITH THESE MATTERS.  CONGRESS MAY WELL BELIEVE THAT THERE IS SUCH A
DIFFERENCE IN LOCAL CIRCUMSTANCES AS TO MAKE IT DESIRABLE TO LEAVE
TREATMENT OF THESE MATTERS TO THE DIFFERENT LOCALITIES.  IN ANY EVENT,
SINCE THESE SUBJECTS ARE OUTSIDE OF THE WAGNER ACT FOR PURPOSES OF
MAKING ADDITIONS BY FEDERAL LAW, THEY CANNOT BE INSIDE IT TO JUSTIFY
NULLIFICATION OF THE FLORIDA LAW.  WHETHER THE INTERESTS OF UNION
MEMBERS OR OF OUTSIDERS CALL FOR AN IDENTIFICATION AND LICENSING SYSTEM
FOR MEN DISCHARGING THE RESPONSIBILITIES OF BUSINESS AGENTS, IT IS NOT
FOR US TO DETERMINE.  THE ONLY ISSUE BEFORE US IS WHETHER FLORIDA IS
FREE TO DEAL WITH THESE MATTERS WHEN CONGRESS HAS NOT DONE SO.  TO
REPEAT WHAT WAS SAID IN ALLEN-BRADLEY LOCAL V. BOARD, SUPRA, "WE WILL
NOT LIGHTLY INFER THAT CONGRESS BY THE MERE PASSAGE OF A FEDERAL ACT" -
THIS VERY ACT - "HAS IMPAIRED THE TRADITIONAL SOVEREIGNTY OF THE
SEVERAL STATES" OVER SUCH POLICE MATTERS AS ARE THE CONCERN OF THE
FLORIDA LEGISLATION. 

IF THE WAGNER ACT HAS LEFT FLORIDA FREE TO DEAL WITH THESE MATTERS,
FLORIDA MAY NOT ONLY LEGISLATE BUT ALSO PROVIDE FOR ENFORCEMENT OF ITS
LEGISLATION.  IN OTHER WORDS, IF FLORIDA MAY CALL FOR REPORTS AND
REQUIRE BUSINESS AGENTS TO APPLY FOR LICENSES, OF COURSE FLORIDA MAY
PROVIDE APPROPRIATE SANCTIONS FOR SUCH REGULATIONS.  IF A UNION MAY
PROPERLY BE REQUIRED TO FILE A REPORT AND DOES NOT DO SO AND THEREFORE
IS PROHIBITED FROM PURSUING ITS INDUSTRIAL ACTIVITIES UNTIL IT DOES
FILE SUCH A REPORT, THE STATE IS NOT INTERFERING WITH WHATEVER RIGHTS
THE UNION MAY HAVE UNDER THE WAGNER ACT.  IT WILL BE TIME ENOUGH TO
CONSIDER SUCH A CLAIM OF CONFLICT, IF ANYTHING THAT FLORIDA MAY EXACT
SHOULD, IN A CONCRETE SITUATION, ACTIVELY INTERFERE WITH APPROPRIATE
ACTION BY THE NATIONAL LABOR RELATIONS BOARD.  IN ANY EVENT, WE DO NOT
KNOW THE REACH OF THE FLORIDA ACT.  FOR ALL THAT APPEARS THE SUPREME
COURT OF FLORIDA MAY CONSTRUE THE ACT'S REQUIREMENTS TO APPLY ONLY TO
INTRASTATE ACTIVITIES OF THE UNION AND ITS BUSINESS AGENTS. 

THE JUDGMENT SHOULD BE AFFIRMED. 

MR. JUSTICE ROBERTS CONCURS IN THIS DISSENT. 
..END :







IN RE SUMMERS, 325 U.S. 561 


NO. 205.  ARGUED APRIL 27, 30, 1945.  - DECIDED JUNE 11, 1945.  -
AFFIRMED. 


1.  THE ILLINOIS SUPREME COURT'S REFUSAL, ON THE MERITS, OF
PETITIONER'S APPLICATION FOR ADMISSION TO THE PRACTICE OF LAW, ALTHOUGH
THE MATTER WAS NOT REGARDED BY THAT COURT AS A JUDICIAL PROCEEDING,
HELD TO INVOLVE A CASE OR CONTROVERSY WITHIN THE JUDICIAL POWER UNDER
ART. III, SEC. 1, CL. 1 OF THE FEDERAL CONSTITUTION.  P. 566. 

2.  REFUSAL OF AN APPLICATION FOR ADMISSION TO THE PRACTICE OF LAW IN
A STATE, ON THE GROUND THAT THE APPLICANT WOULD BE UNABLE IN GOOD FAITH
TO TAKE THE REQUIRED OATH TO SUPPORT THE CONSTITUTION OF THE STATE,
BECAUSE OF CONSCIENTIOUS SCRUPLES RESULTING IN UNWILLINGNESS TO SERVE
IN THE STATE MILITIA IN TIME OF WAR, HELD NOT A DENIAL OF ANY RIGHT OF
THE APPLICANT UNDER THE FIRST AND FOURTEENTH AMENDMENTS OF THE FEDERAL
CONSTITUTION.  P. 571. 

IN RE SUMMERS. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

CERTIORARI, 323 U.S. 705, TO REVIEW THE ACTION OF THE SUPREME COURT
OF ILLINOIS IN REFUSING PETITIONER'S APPLICATION FOR ADMISSION TO THE
BAR. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER SOUGHT A WRIT OF CERTIORARI FROM THIS COURT UNDER SECTION
237(B) OF THE JUDICIAL CODE TO REVIEW THE ACTION OF THE SUPREME COURT
OF ILLINOIS IN DENYING PETITIONER'S PRAYER FOR ADMISSION TO THE
PRACTICE OF LAW IN THAT STATE.  IT WAS ALLEGED THAT THE DENIAL WAS "ON
THE SOLE GROUND THAT HE IS A CONSCIENTIOUS OBJECTOR TO WAR" OR TO
PHRASE PETITIONER'S CONTENTION SLIGHTLY DIFFERENTLY "BECAUSE OF HIS
CONSCIENTIOUS SCRUPLES AGAINST PARTICIPATION IN WAR."  PETITIONER
CHALLENGES HERE THE RIGHT OF THE SUPREME COURT TO EXCLUDE HIM FROM THE
BAR UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES WHICH SECURED TO HIM PROTECTION
AGAINST STATE ACTION IN VIOLATION OF THE PRINCIPLES OF THE FIRST
AMENDMENT.  FN1  BECAUSE OF THE IMPORTANCE OF THE TENDERED ISSUE IN THE
DOMAIN OF CIVIL RIGHTS, WE GRANTED CERTIORARI.  FN2  323 U.S. 705. 

SINCE THE PROCEEDINGS WERE NOT TREATED AS JUDICIAL BY THE SUPREME
COURT OF ILLINOIS, THE RECORD IS NOT IN THE CUSTOMARY FORM.  IT SHOWS
ACCURATELY, HOWEVER, THE STEPS BY WHICH THE ISSUE WAS DEVELOPED AND THE
ACTION OF THE SUPREME COURT ON THE PRAYER FOR ADMISSION TO THE PRACTICE
OF LAW IN THE STATE OF ILLINOIS.  FROM THE RECORD IT APPEARS THAT CLYDE
WILSON SUMMERS HAS COMPLIED WITH ALL PREREQUISITES FOR ADMISSION TO THE
BAR OF ILLINOIS EXCEPT THAT HE HAS NOT OBTAINED THE CERTIFICATE OF THE
COMMITTEE ON CHARACTER AND FITNESS.  CF. ILLINOIS REVISED STATUTES
1943, C. 110, SEC. 259.58.  NO REPORT APPEARS IN THE RECORD FROM THE
COMMITTEE.  AN UNOFFICIAL LETTER FROM THE SECRETARY GIVES HIS PERSONAL
VIEWS.  FN3  A PETITION WAS FILED IN THE SUPREME COURT ON AUGUST 2,
1943, WHICH ALLEGED THAT PETITIONER WAS INFORMED IN JANUARY, 1943, THAT
THE COMMITTEE DECLINED TO SIGN A FAVORABLE CERTIFICATE.  THE PETITION
SET OUT THAT THE SOLE REASON FOR THE COMMITTEE'S REFUSAL WAS THAT
PETITIONER WAS A CONSCIENTIOUS OBJECTOR TO WAR, AND AVERRED THAT SUCH
REASON DID NOT JUSTIFY HIS EXCLUSION BECAUSE OF THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  THE DENIAL OF THE PETITION FOR ADMISSION
IS INFORMAL.  IT CONSISTS OF A LETTER OF SEPTEMBER 20, 1943, TO THE
SECRETARY OF THE COMMITTEE WHICH IS SET OUT BELOW,  FN4  A LETTER OF
THE SAME DATE TO MR. SUMMERS AND A THIRD LETTER OF MARCH 22, 1944, TO
MR. SUMMERS' ATTORNEY ON PETITION FOR REHEARING.  THESE LATTER TWO
LETTERS ARE SET OUT IN NOTE 8. 

THE ANSWER OF THE JUSTICES TO THESE ALLEGATIONS DOES NOT APPEAR IN
THE RECORD WHICH WAS TRANSMITTED FROM THE SUPREME COURT OF ILLINOIS TO
THIS COURT BUT IN THEIR RETURN TO THE RULE TO SHOW CAUSE WHY CERTIORARI
SHOULD NOT BE GRANTED.  THE ANSWER IS TWO-FOLD:  FIRST, THAT THE
PROCEEDINGS WERE NOT A MATTER OF JUDICIAL COGNIZANCE IN ILLINOIS AND
THAT NO CASE OR CONTROVERSY EXISTS IN THIS COURT UNDER ARTICLE III OF
THE FEDERAL CONSTITUTION; SECOND, THAT ASSUMING THE SOLE GROUND FOR
REFUSING TO PETITIONER ADMISSION TO PRACTICE WAS HIS PROFESSION OF
CONSCIENTIOUS OBJECTION TO MILITARY SERVICE, SUCH REFUSAL DID NOT
VIOLATE THE FOURTEENTH AMENDMENT BECAUSE THE REQUIREMENT FOR APPLICANTS
FOR ADMISSION TO THE BAR TO TAKE AN OATH TO SUPPORT THE CONSTITUTION OF
ILLINOIS COULD NOT BE MET.  IN VIEW OF HIS RELIGIOUS AFFIRMATIONS,
PETITIONER COULD NOT AGREE, FREELY, TO SERVE IN THE ILLINOIS MILITIA. 
THEREFORE PETITIONER WAS NOT BARRED BECAUSE OF HIS RELIGION BUT BECAUSE
HE COULD NOT IN GOOD FAITH TAKE THE PRESCRIBED OATH, EVEN THOUGH HE
MIGHT BE WILLING TO DO SO.  WE TURN TO CONSIDERATION OF THE JUSTICES'
CONTENTIONS. 

CASE OR CONTROVERSY.  THE RETURN OF THE CHIEF JUSTICE AND THE
ASSOCIATE JUSTICES STATES THAT THE CORRESPONDENCE AND COMMUNICATIONS OF
PETITIONER WITH THE JUSTICES WERE NOT SPREAD UPON THE RECORDS OF THE
SUPREME COURT OF ILLINOIS AND THAT UNDER THE LAW OF ILLINOIS THIS
PETITION FOR ADMISSION TO THE BAR DOES NOT CONSTITUTE A CASE OR
CONTROVERSY OR A JUDICIAL PROCEEDING BUT IS A MERE APPLICATION FOR
APPOINTMENT AS AN OFFICER OF THE COURT.  FN5  WE OF COURSE ACCEPT THIS
AUTHORITATIVE COMMENTARY UPON THE LAW OF ILLINOIS AS ESTABLISHING FOR
THAT STATE THE NON-JUDICIAL CHARACTER OF AN APPLICATION FOR ADMISSION
TO THE BAR.  FN6  WE TAKE IT THAT THE LAW OF ILLINOIS TREATS THE ACTION
OF THE SUPREME COURT ON THIS PETITION AS A MINISTERIAL ACT WHICH IS
PERFORMED BY VIRTUE OF THE JUDICIAL POWER, SUCH AS THE APPOINTMENT OF A
CLERK OR BAILIFF OR THE SPECIFICATION OF THE REQUIREMENTS OF
ELIGIBILITY OR THE COURSE OF STUDY FOR APPLICANTS FOR ADMISSION TO THE
BAR, RATHER THAN A JUDICIAL PROCEEDING. 

FOR THE PURPOSE OF DETERMINING WHETHER THE ACTION OF THE SUPREME
COURT OF ILLINOIS IN DENYING SUMMERS' PETITION FOR AN ORDER FOR
ADMISSION TO PRACTICE LAW IN ILLINOIS IS A JUDGMENT IN A JUDICIAL
PROCEEDING WHICH INVOLVES A CASE OR CONTROVERSY REVIEWABLE IN THIS
COURT UNDER ARTICLE III, SEC. 2, CL. 1, OF THE CONSTITUTION OF THE
UNITED STATES,  FN7  WE MUST FOR OURSELVES APPRAISE THE CIRCUMSTANCES
OF THE REFUSAL.  NASHVILLE, C. & ST. L.R. CO. V. WALLACE, 288 U.S. 249,
259.  CF. BRIDGES V. CALIFORNIA, 314 U.S. 252, 259-60; NIXON V. CONDON,
286 U.S. 73, 88; FIRST NATIONAL BANK V. HARTFORD, 273 U.S. 548, 552;
TRUAX V. CORRIGAN, 257 U.S. 312, 324. 

A CASE ARISES, WITHIN THE MEANING OF THE CONSTITUTION, WHEN ANY
QUESTION RESPECTING THE CONSTITUTION, TREATIES OR LAWS OF THE UNITED
STATES HAS ASSUMED "SUCH A FORM THAT THE JUDICIAL POWER IS CAPABLE OF
ACTING ON IT."  OSBORN V. BANK, 9 WHEAT.  738, 819.  THE COURT WAS THEN
CONSIDERING THE POWER OF THE BANK TO SUE IN THE FEDERAL COURTS.  A
DECLARATION ON RIGHTS AS THEY STAND MUST BE SOUGHT, NOT ON RIGHTS WHICH
MAY ARISE IN THE FUTURE, PRENTIS V. ATLANTIC COAST LINE, 211 U.S. 210,
226, AND THERE MUST BE AN ACTUAL CONTROVERSY OVER AN ISSUE, NOT A
DESIRE FOR AN ABSTRACT DECLARATION OF THE LAW.  MUSKRAT V. UNITED
STATES, 219 U.S. 346, 361; FAIRCHILD V. HUGHES, 258 U.S. 126, 129.  THE
FORM OF THE PROCEEDING IS NOT SIGNIFICANT.  IT IS THE NATURE AND EFFECT
WHICH IS CONTROLLING.  NASHVILLE, C. & ST. L.R. CO. V. WALLACE, 288
U.S. 249, 259. 

THE BRIEF FOR THE JUSTICES RAISES THE QUESTION AS TO WHO ARE THE
ADVERSARY PARTIES.  THE PETITION IN THE STATE COURT WAS ENTITLED,
"CLYDE WILSON SUMMERS, PETITIONER, V. COMMITTEE ON CHARACTER AND
FITNESS FOR THIRD APPELLATE DISTRICT, RESPONDENT."  THE PRAYER SOUGHT
RELIEF AGAINST THOSE NAMED AS RESPONDENTS.  THE RECORD DOES NOT SHOW
THAT ANY PROCESS ISSUED OR THAT ANY APPEARANCE WAS MADE.  OUR RULE ON
THE PETITION FOR CERTIORARI REQUIRED THE SUPREME COURT OF ILLINOIS TO
SHOW CAUSE WHY A RECORD SHOULD NOT BE CERTIFIED AND THE WRIT OF
CERTIORARI GRANTED.  THE RETURN WAS BY THE JUSTICES, NOT BY THE COURT. 
THE SUPREME COURT OF ILLINOIS, HOWEVER, CONCLUDED THAT THE "REPORT OF
THE COMMITTEE ON CHARACTER AND FITNESS SHOULD BE SUSTAINED."  THUS IT
CONSIDERED THE PETITION ON ITS MERITS.  WHILE NO ENTRY WAS PLACED BY
THE CLERK IN THE FILE, ON A DOCKET, OR IN A JUDGMENT ROLL, THE COURT
TOOK COGNIZANCE OF THE PETITION AND PASSED AN ORDER WHICH IS VALIDATED
BY THE SIGNATURE OF THE PRESIDING OFFICER.  FN8  WHERE RELIEF IS THUS
SOUGHT IN A STATE COURT AGAINST THE ACTION OF A COMMITTEE, APPOINTED TO
ADVISE THE COURT, AND THE COURT TAKES COGNIZANCE OF THE COMPLAINT
WITHOUT REQUIRING THE APPEARANCE OF THE COMMITTEE OR ITS MEMBERS, WE
THINK THE CONSIDERATION OF THE PETITION BY THE SUPREME COURT, THE BODY
WHICH HAS AUTHORITY ITSELF BY ITS OWN ACT TO GIVE THE RELIEF SOUGHT,
MAKES THE PROCEEDING ADVERSARY IN THE SENSE OF A TRUE CASE OR
CONTROVERSY. 

A CLAIM OF A PRESENT RIGHT TO ADMISSION TO THE BAR OF A STATE AND A
DENIAL OF THAT RIGHT IS A CONTROVERSY.  WHEN THE CLAIM IS MADE IN A
STATE COURT AND A DENIAL OF THE RIGHT IS MADE BY JUDICIAL ORDER, IT IS
A CASE WHICH MAY BE REVIEWED UNDER ARTICLE III OF THE CONSTITUTION WHEN
FEDERAL QUESTIONS ARE RAISED AND PROPER STEPS TAKEN TO THAT END, IN
THIS COURT.  FN9 

DISQUALIFICATION UNDER ILLINOIS CONSTITUTION.  THE JUSTICES JUSTIFY
THEIR REFUSAL TO ADMIT PETITIONER TO PRACTICE BEFORE THE COURTS OF
ILLINOIS ON THE GROUND OF PETITIONER'S INABILITY TO TAKE IN GOOD FAITH
THE REQUIRED OATH TO SUPPORT THE CONSTITUTION OF ILLINOIS.  HIS
INABILITY TO TAKE SUCH AN OATH, THE JUSTICES SUBMIT, SHOWS THAT THE
COMMITTEE ON CHARACTER AND FITNESS PROPERLY REFUSED TO CERTIFY TO HIS
MORAL CHARACTER AND MORAL FITNESS TO BE AN OFFICER OF THE COURT,
CHARGED WITH THE ADMINISTRATION OF JUSTICE UNDER THE ILLINOIS LAW.  HIS
GOOD CITIZENSHIP, THEY THINK, JUDGED BY THE STANDARDS REQUIRED FOR
PRACTICING LAW IN ILLINOIS, IS NOT SATISFACTORILY SHOWN.  FN10  A
CONSCIENTIOUS BELIEF IN NONVIOLENCE TO THE EXTENT THAT THE BELIEVER
WILL NOT USE FORCE TO PREVENT WRONG, NO MATTER HOW AGGRAVATED, AND SO
CANNOT SWEAR IN GOOD FAITH TO SUPPORT THE ILLINOIS CONSTITUTION, THE
JUSTICES CONTEND, MUST DISQUALIFY SUCH A BELIEVER FOR ADMISSION. 

PETITIONER APPRAISES THE DENIAL OF ADMISSION FROM THE VIEWPOINT OF A
RELIGIONIST.  HE SAID IN HIS PETITION: 

"THE SO-CALLED 'MISCONDUCT' FOR WHICH PETITIONER COULD BE REPROACHED
FOR IS HIS TAKING THE NEW TESTAMENT TOO SERIOUSLY.  INSTEAD OF MERELY
READING OR PREACHING THE SERMON ON THE MOUNT, HE TRIES TO PRACTICE IT.
THE ONLY FAULT OF THE PETITIONER CONSISTS IN HIS ATTEMPT TO ACT AS A
GOOD CHRISTIAN IN ACCORDANCE WITH HIS INTERPRETATION OF THE BIBLE, AND
ACCORDING TO THE DICTATES OF HIS CONSCIENCE.  WE RESPECTFULLY SUBMIT
THAT THE PROFESSION OF LAW DOES NOT SHUT ITS GATES TO PERSONS WHO HAVE
QUALIFIED IN ALL OTHER RESPECTS EVEN WHEN THEY FOLLOW IN THE FOOTSTEPS
OF THAT GREAT TEACHER OF MANKIND WHO DELIVERED THE SERMON ON THE
MOUNT.  WE RESPECTFULLY SUBMIT THAT UNDER OUR CONSTITUTIONAL GUARANTEES
EVEN GOOD CHRISTIANS WHO HAVE MET ALL THE REQUIREMENTS FOR THE
ADMISSION TO THE BAR MAY BE ADMITTED TO PRACTICE LAW." 

THUS A COURT CREATED TO ADMINISTER THE LAWS OF ILLINOIS AS IT
UNDERSTANDS THEM, AND CHARGED PARTICULARLY WITH THE PROTECTION OF
JUSTICE IN THE COURTS OF ILLINOIS THROUGH SUPERVISION OF ADMISSIONS TO
THE BAR, FOUND ITSELF FACED WITH THE DILEMMA OF EXCLUDING AN APPLICANT
WHOM IT DEEMED DISQUALIFIED FOR THE RESPONSIBILITIES OF THE PROFESSION
OF LAW OR OF ADMITTING THE APPLICANT BECAUSE OF ITS DEEPLY ROOTED
TRADITION IN FREEDOM OF BELIEF.  THE RESPONSIBILITY FOR CHOICE AS TO
THE PERSONNEL OF ITS BAR RESTS WITH ILLINOIS.  ONLY A DECISION WHICH
VIOLATED A FEDERAL RIGHT SECURED BY THE FOURTEENTH AMENDMENT WOULD
AUTHORIZE OUR INTERVENTION.  IT IS SAID THAT THE ACTION OF THE SUPREME
COURT OF ILLINOIS IS CONTRARY TO THE PRINCIPLES OF THAT PORTION OF THE
FIRST AMENDMENT WHICH GUARANTEES THE FREE EXERCISE OF RELIGION.  OF
COURSE, UNDER OUR CONSTITUTIONAL SYSTEM, MEN COULD NOT BE EXCLUDED FROM
THE PRACTICE OF LAW, OR INDEED FROM FOLLOWING ANY OTHER CALLING, SIMPLY
BECAUSE THEY BELONG TO ANY OF OUR RELIGIOUS GROUPS, WHETHER PROTESTANT,
CATHOLIC, QUAKER OR JEWISH, ASSUMING IT CONCEIVABLE THAT ANY STATE OF
THE UNION WOULD DRAW SUCH A RELIGIOUS LINE.  WE CANNOT SAY THAT ANY
SUCH PURPOSE TO DISCRIMINATE MOTIVATED THE ACTION OF THE ILLINOIS
SUPREME COURT. 

THE SINCERITY OF PETITIONER'S BELIEFS ARE NOT QUESTIONED.  HE HAS
BEEN CLASSIFIED AS A CONSCIENTIOUS OBJECTOR UNDER THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, AS AMENDED.  WITHOUT
DETAILING PETITIONER'S TESTIMONY BEFORE THE COMMITTEE OR HIS SUBSEQUENT
STATEMENTS IN THE RECORD, HIS POSITION MAY BE COMPENDIOUSLY STATED AS
ONE OF NON-VIOLENCE.  PETITIONER WILL NOT SERVE IN THE ARMED FORCES. 
WHILE HE RECOGNIZES A DIFFERENCE BETWEEN THE MILITARY AND POLICE
FORCES, HE WOULD NOT ACT IN THE LATTER TO COERCE THREATENED
VIOLATIONS.  PETITIONER WOULD NOT USE FORCE TO MEET AGGRESSIONS AGAINST
HIMSELF OR HIS FAMILY, NO MATTER HOW AGGRAVATED OR WHETHER OR NOT
CARRYING A DANGER OF BODILY HARM TO HIMSELF OR OTHERS.  HE IS A
BELIEVER IN PASSIVE RESISTANCE.  WE NEED TO CONSIDER ONLY HIS ATTITUDE
TOWARD SERVICE IN THE ARMED FORCES. 

ILLINOIS HAS CONSTITUTIONAL PROVISIONS WHICH REQUIRE SERVICE IN THE
MILITIA IN TIME OF WAR OF MEN OF PETITIONER'S AGE GROUP.  FN11  THE
RETURN OF THE JUSTICES ALLEGES THAT PETITIONER HAS NOT MADE ANY SHOWING
THAT HE WOULD SERVE NOTWITHSTANDING HIS CONSCIENTIOUS OBJECTIONS.  THIS
ALLEGATION IS UNDENIED IN THE RECORD AND UNCHALLENGED BY BRIEF.  WE
ACCEPT THE ALLEGATION AS TO UNWILLINGNESS TO SERVE IN THE MILITIA AS
ESTABLISHED.  WHILE UNDER SEC. 5(G) OF THE SELECTIVE TRAINING AND
SERVICE ACT, SUPRA, CONSCIENTIOUS OBJECTORS TO PARTICIPATION IN WAR IN
ANY FORM NOW ARE PERMITTED TO DO NON-WAR WORK OF NATIONAL IMPORTANCE,
THIS IS BY GRACE OF CONGRESSIONAL RECOGNITION OF THEIR BELIEFS. 
HAMILTON V. REGENTS, 293 U.S. 245, 261-65, AND CASES CITED.  THE ACT
MAY BE REPEALED.  NO SIMILAR EXEMPTION DURING WAR EXISTS UNDER ILLINOIS
LAW.  THE HAMILTON DECISION WAS MADE IN 1934, IN TIME OF PEACE.  FN12
THIS DECISION AS TO THE POWERS OF THE STATE GOVERNMENT OVER MILITARY
TRAINING IS APPLICABLE TO THE POWER OF ILLINOIS TO REQUIRE MILITARY
SERVICE FROM HER CITIZENS.    THE UNITED STATES DOES NOT ADMIT TO
CITIZENSHIP THE ALIEN WHO REFUSES TO PLEDGE MILITARY SERVICE.  UNITED
STATES V. SCHWIMMER, 279 U.S. 644; UNITED STATES V. MACINTOSH, 283 U.S.
605.  EVEN THE POWERFUL DISSENTS WHICH EMPHASIZED THE DEEP CLEAVAGE IN
THIS COURT ON THE ISSUE OF ADMISSION TO CITIZENSHIP DID NOT CHALLENGE
THE RIGHT OF CONGRESS TO REQUIRE MILITARY SERVICE FROM EVERY ABLE
BODIED MAN.  279 U.S. AT 653; 283 U.S. AT 632.  IT IS IMPOSSIBLE FOR US
TO CONCLUDE THAT THE INSISTENCE OF ILLINOIS THAT AN OFFICER WHO IS
CHARGED WITH THE ADMINISTRATION OF JUSTICE MUST TAKE AN OATH TO SUPPORT
THE CONSTITUTION OF ILLINOIS AND ILLINOIS' INTERPRETATION OF THAT OATH
TO REQUIRE A WILLINGNESS TO PERFORM MILITARY SERVICE VIOLATES THE
PRINCIPLES OF RELIGIOUS FREEDOM WHICH THE FOURTEENTH AMENDMENT SECURES
AGAINST STATE ACTION, WHEN A LIKE INTERPRETATION OF A SIMILAR OATH AS
TO THE FEDERAL CONSTITUTION BARS AN ALIEN FROM NATIONAL CITIZENSHIP. 
FN13 AFFIRMED. 

FN1  FOURTEENTH AMENDMENT: 

"...  NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW  ..." 

FIRST AMENDMENT: 

"CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION,
OR PROHIBITING THE FREE EXERCISE THEREOF  ..."  CF. BOARD OF EDUCATION
V. BARNETTE, 319 U.S. 624, 639. 

FN2  THE PETITION FOR CERTIORARI WAS NOT ACCOMPANIED BY A CERTIFIED
RECORD.  RULE 38(1).  IT ALLEGED AN INABILITY TO OBTAIN A RECORD FROM
THE CLERK OF THE SUPREME COURT OF ILLINOIS BECAUSE THE DOCUMENTS WERE
NOT IN THAT OFFICIAL'S CUSTODY.  SEE NOTE 8, INFRA.  NO OPPOSING BRIEF
WAS FILED.  AFTER THE EXPIRATION OF THE TIME FOR OPPOSING BRIEFS, RULE
38(3), A RULE ISSUED "RETURNABLE WITHIN 30 DAYS, REQUIRING THE SUPREME
COURT OF ILLINOIS TO SHOW CAUSE WHY THE RECORD IN THIS PROCEEDING
SHOULD NOT BE CERTIFIED TO THIS COURT AND ALSO WHY THE PETITION FOR
WRIT OF CERTIORARI HEREIN SHOULD NOT BE GRANTED."  JOURNAL, SUPREME
COURT OF THE UNITED STATES, OCTOBER TERM, 1944, P. 6.  A RETURN WAS
DULY MADE BY THE CHIEF JUSTICE AND THE ASSOCIATE JUSTICES OF THE
SUPREME COURT OF ILLINOIS WHICH STATED THE POSITION OF THE JUSTICES ON
THE CERTIFICATION OF THE SUPPOSED AND ALLEGED RECORD AND THEIR
OPPOSITION TO THE GRANTING OF THE CERTIORARI.  ON CONSIDERATION OUR
WRIT OF CERTIORARI ISSUED, DIRECTED TO THE HONORABLE, THE JUDGES OF THE
SUPREME COURT OF ILLINOIS, COMMANDING THAT "THE RECORD AND/OR PAPERS
AND PROCEEDINGS" BE SENT TO THIS COURT FOR REVIEW.  JOURNAL, SUPREME
COURT OF THE UNITED STATES, OCTOBER TERM, 1944, P. 93.  THE PAPERS
COMPRISING THE PROCEEDINGS BEFORE THE SUPREME COURT OF ILLINOIS WERE
CERTIFIED TO US BY THE CLERK OF THAT COURT. 

FN3  IN PART IT READS: 

"I THINK THE RECORD ESTABLISHES THAT YOU ARE A CONSCIENTIOUS
OBJECTOR, - ALSO THAT YOUR PHILOSOPHICAL BELIEFS GO FURTHER.  YOU
ESCHEW THE USE OF FORCE REGARDLESS OF CIRCUMSTANCES BUT THE LAW WHICH
YOU PROFESS TO EMBRACE AND WHICH YOU TEACH AND WOULD PRACTICE IS NOT AN
ABSTRACTION OBSERVED THROUGH MUTUAL RESPECT.  IT IS REAL.  IT IS THE
RESULT OF EXPERIENCE OF MAN IN AN IMPERFECT WORLD, NECESSARY WE BELIEVE
TO RESTRAIN THE STRONG AND PROTECT THE WEAK.  IT RECOGNIZES THE RIGHT
EVEN OF THE INDIVIDUAL TO USE FORCE UNDER CERTAIN CIRCUMSTANCES AND
COMMANDS THE USE OF FORCE TO OBTAIN ITS OBSERVANCE. 

     .         .         .         .         . 

"I DO NOT ARGUE AGAINST YOUR RELIGIOUS BELIEFS OR YOUR PHILOSOPHY OF
NON-VIOLENCE.  MY POINT IS MERELY THAT YOUR POSITION SEEMS INCONSISTENT
WITH THE OBLIGATION OF AN ATTORNEY AT LAW." 

FN4  "THIS COURT HAS AN ELABORATE PETITION FILED BY FRANCISE HEISLER,
AN ATTORNEY OF 77 WEST WASHINGTON STREET, CHICAGEO, ILLINOIS, ON BEHALF
OF CLYDE WILSON SUMMERS. 

"THE SUBSTANCE OF THE PETITION IS THAT THE BOARD SHOULD OVERRULE THE
ACTION OF THE COMMITTEE ON CHARACTER AND FITNESS, IN WHICH THE
COMMITTEE REFUSED TO GIVE HIM A CERTIFICATE BECAUSE HE IS A
CONSCIENTIOUS OBJECTOR, AND FOR THAT REASON REFUSED TO REGISTER OR
PARTICIPATE IN THE PRESENT NATIONAL EMERGENCY. 

"I AM DIRECTED TO ADVISE YOU THAT THE COURT IS OF THE OPINION THAT
THE REPORT OF THE COMMITTEE ON CHARACTER AND FITNESS SHOULD BE
SUSTAINED. 

                "YOURS VERY TRULY, JUNE C. SMITH, CHIEF JUSTICE." 

FN5  OTHER COURTS REASON TO THE CONTRARY RESULT.  EX PARTE SECOMBE,
19 HOW.  9, 15; EX PARTE GARLAND, 4 WALL.  333; RANDALL V. BRIGHAM, 7
WALL.  523, 535; IN THE MATTER OF COOPER, 22 N.Y. 67; EX PARTE CASHIN,
128 MISS.  224, 232, 90 SO. 850. 

FN6  ILLINOIS CONSIDERS THAT THE POWER AND JURISDICTION OF ITS
SUPREME COURT WITH RESPECT TO THE ADMISSION OF ATTORNEYS ARE INHERENT
IN THE JUDICIARY UNDER THE CONSTITUTION OF THE STATE, WHICH PROVIDES,
ARTICLE III, FOR THE TRADITIONAL DISTRIBUTION OF THE POWERS OF
GOVERNMENT.  SMITH-HURD ILLINOIS ANNO.  STATUTES, CONSTITUTION, P. 394;
IN RE DAY, 181 ILL. 73, 82, 54 N.E. 646.  ATTORNEYS ARE OFFICERS OF THE
COURT, ANSWERABLE TO IT FOR THEIR CONDUCT.  PEOPLE V. PEOPLES STOCK
YARDS STATE BANK, 344 ILL. 462, 470, 176 N.E. 901.  THE ACT OF
ADMISSION IS AN EXERCISE OF JUDICIAL POWER, ID. 470, A JUDGMENT, IN RE
DAY, AT P. 97, EVEN THOUGH IT IS NOT CONSIDERED A JUDICIAL PROCEEDING. 
IN THE EXERCISE OF ITS JUDICIAL POWER OVER THE BAR, THE SUPREME COURT
OF ILLINOIS HAS ADOPTED RULES FOR ADMISSION TO PRACTICE BEFORE THE
COURTS OF THAT STATE WHICH PERMIT THE ADMISSION BY THE SUPREME COURT
AFTER SATISFACTORY EXAMINATION BY THE BOARD OF LAW EXAMINERS WHICH
INCLUDES A CERTIFICATION BY A COMMITTEE ON CHARACTER AND FITNESS AS TO
THE APPLICANT'S CHARACTER AND MORAL FITNESS.  ILLINOIS REVISED STATUTES
1943, C. 110, SEC. 259.58. 

FN7  CONSTITUTION, ART. III, SEC. 2, CL. 1:  "THE JUDICIAL POWER
SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER THIS
CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES MADE, OR
WHICH SHALL BE MADE, UNDER THEIR AUTHORITY; - TO ALL CASES AFFECTING
AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS; - TO ALL CASES OF
ADMIRALTY AND MARITIME JURISDICTION; - TO CONTROVERSIES TO WHICH THE
UNITED STATES SHALL BE A PARTY; - TO CONTROVERSIES BETWEEN TWO OR MORE
STATES; - BETWEEN A STATE AND CITIZENS OF ANOTHER STATE; - BETWEEN
CITIZENS OF DIFFERENT STATES; - BETWEEN CITIZENS OF THE SAME STATE
CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES, AND BETWEEN A STATE,
OR THE CITIZENS THEREOF, AND FOREIGN STATES, CITIZENS OR SUBJECTS." 

FN8  THE ACT OF ADJUDGING TO WHICH WE HAVE REFERRED IS CONTAINED IN A
LETTER ADDRESSED TO PETITIONER, WHICH READS AS FOLLOWS: 

"YOUR PETITION TO BE ADMITTED TO THE BAR, NOTWITHSTANDING THE
UNFAVORABLE REPORT OF THE COMMITTEE ON CHARACTER AND FITNESS FOR THE
THIRD APPELLATE COURT DISTRICT, HAS RECEIVED THE CONSIDERATION OF THE
COURT. 

"I AM DIRECTED TO ADVISE YOU THAT THE COURT IS OF THE OPINION THAT
THE REPORT OF THE COMMITTEE ON CHARACTER AND FITNESS SHOULD BE
SUSTAINED. 

             "YOURS VERY TRULY, JUNE C. SMITH, CHIEF JUSTICE." 

THE LETTER WAS CERTIFIED BY THE CLERK OF THE SUPREME COURT OF
ILLINOIS UNDER ITS SEAL AS "FILED IN THIS OFFICE - IN A CERTAIN CAUSE
ENTITLED IN THIS COURT.  NON RECORD NO. 462.  IN RE CLYDE WILSON
SUMMERS." 

LATER ANOTHER LETTER WAS WRITTEN IN REGARD TO THE ADMISSION WHICH
READS AS FOLLOWS:

        "MARCH 22, 1944. 

"MR. FRANCIS HEISLER, ATTORNEY AT LAW, 77 WEST WASHINGTON STREET, 

"SUITE 1324, CHICAGO 2, ILLINOIS. 

        "IN RE:  CLYDE WILSON SUMMERS. 

"DEAR SIR: 

"YOUR PETITION ON BEHALF OF CLYDE WILSON SUMMERS TO RECONSIDER THE
PRIOR ACTION OF THE COURT SUSTAINING THE REPORT OF THE COMMITTEE ON
CHARACTER AND FITNESS FOR THE THIRD APPELLATE COURT DISTRICT, HAS HAD
THE CONSIDERATION OF THE COURT. 

"I AM DIRECTED TO ADVISE YOU THAT THE COURT DECLINES TO FURTHER
CONSIDER ITS FORMER ACTION IN THIS MATTER. 

"YOURS VERY TRULY, JUNE C. SMITH, CHIEF JUSTICE." 

BY STIPULATION OF PETITIONER AND THE JUSTICES, THE CLERK PREPARED A
SUPPLEMENTAL RECORD IN THIS CAUSE WHICH INCLUDES THE FOLLOWING:  (1) A
TRANSCRIPT OF THE PROCEEDINGS BEFORE THE CHARACTER COMMITTEE; (2) THE
LETTER OF MARCH 22, 1944; (3) A CERTIFICATE THAT THE TRANSCRIPT IS THE
ORIGINAL AND THE LETTER A DOCUMENT OF THE SUPREME COURT OF ILLINOIS. 

FN9  IN BRADWELL V. STATE, 16 WALL.  130, THIS COURT TOOK COGNIZANCE
OF A WRIT OF ERROR TO AN ORDER OF THE SUPREME COURT OF ILLINOIS WHICH
DENIED A MOTION OF MRS. BRADWELL FOR ADMISSION TO THE BAR OF ILLINOIS. 
THE PROCEEDING WAS ENTITLED BY THE SUPREME COURT OF ILLINOIS, "IN THE
MATTER OF THE APPLICATION OF MRS. MYRA BRADWELL FOR A LICENSE TO
PRACTICE AS AN ATTORNEY-AT-LAW."  THERE WAS AN OPINION.  A WRIT OF
ERROR UNDER THE ILLINOIS TITLE WAS ISSUED TO BRING UP THE CASE.  THE
OBJECTION TO MRS. BRADWELL'S ADMISSION WAS ON THE GROUND OF HER SEX. 
AS NO QUESTION WAS RAISED AS TO THE JURISDICTION OF THIS COURT UNDER
ARTICLE III OF THE CONSTITUTION, THE CASE IS OF LITTLE, IF ANY, VALUE
AS A PRECEDENT ON THAT POINT.  ARANT V. LANE, 245 U.S. 166, 170; UNITED
STATES V. MORE, 3 CRANCH 159, 172. 

FN10  SECTION IX(2) OF THE RULES FOR ADMISSION TO THE BAR READS AS
FOLLOWS: 

"BEFORE ADMISSION TO THE BAR, EACH APPLICANT SHALL BE PASSED UPON BY
THE COMMITTEE IN HIS DISTRICT AS TO HIS CHARACTER AND MORAL FITNESS. 
HE SHALL FURNISH THE COMMITTEE WITH AN AFFIDAVIT IN SUCH FORM AS THE
BOARD OF LAW EXAMINERS SHALL PRESCRIBE CONCERNING HIS HISTORY AND
ENVIRONMENTS, TOGETHER WITH THE AFFIDAVITS OF AT LEAST THREE REPUTABLE
PERSONS PERSONALLY ACQUAINTED WITH HIM RESIDING IN THE COUNTY IN WHICH
THE APPLICANT RESIDES, EACH TESTIFYING THAT THE APPLICANT IS KNOWN TO
THE AFFIANT TO BE OF GOOD MORAL CHARACTER AND GENERAL FITNESS TO
PRACTICE LAW, SETTING FORTH IN DETAIL THE FACTS UPON WHICH SUCH
KNOWLEDGE IS BASED.  EACH APPLICANT SHALL APPEAR BEFORE THE COMMITTEE
OF HIS DISTRICT OR SOME MEMBER THEREOF AND SHALL FURNISH THE COMMITTEE
SUCH EVIDENCE OF HIS MORAL CHARACTER AND GOOD CITIZENSHIP AS IN THE
OPINION OF THE COMMITTEE WOULD JUSTIFY HIS ADMISSION TO THE BAR."  ILL.
REV. STAT. 1943, C. 110, SEC. 259.58. 

FN11  "THE MILITIA OF THE STATE OF ILLINOIS SHALL CONSIST OF ALL ABLE
BODIED MALE PERSONS RESIDENT IN THE STATE, BETWEEN THE AGES OF EIGHTEEN
AND FORTY-FIVE, EXCEPT SUCH PERSONS AS NOW ARE, OR HEREAFTER MAY BE,
EXEMPTED BY THE LAWS OF THE UNITED STATES, OR OF THIS STATE." 
(CONSTITUTION OF ILLINOIS, ART. XII, SEC. 1, ILL. REV. STAT. 1943.) 

"NO PERSON HAVING CONSCIENTIOUS SCRUPLES AGAINST BEARING ARMS SHALL
BE COMPELLED TO DO MILITIA DUTY IN TIME OF PEACE:  PROVIDED, SUCH
PERSON SHALL PAY AN EQUIVALENT FOR SUCH EXEMPTION."  (CONSTITUTION OF
ILLINOIS, ART. XII, SEC. 6, ILL. REV. STAT. 1943.) 

FN12  CALIFORNIA IMPOSED INSTRUCTION IN MILITARY TACTICS ON MALE
STUDENTS IN THE UNIVERSITY OF CALIFORNIA.  SOME STUDENTS SOUGHT
EXEMPTION FROM THIS TRAINING ON THE GROUND THAT SUCH TRAINING WAS
INCONSISTENT WITH THEIR RELIGIOUS BELIEFS.  THIS COURT DENIED THEM ANY
SUCH EXEMPTION BASED ON THE DUE PROCESS CLAUSE OF THE FEDERAL
CONSTITUTION.  THE OPINION STATES, AT PP. 262-63: 

"GOVERNMENT, FEDERAL AND STATE, EACH IN ITS OWN SPHERE OWES A DUTY TO
THE PEOPLE WITHIN ITS JURISDICTION TO PRESERVE ITSELF IN ADEQUATE
STRENGTH TO MAINTAIN PEACE AND ORDER AND TO ASSURE THE JUST ENFORCEMENT
OF LAW.  AND EVERY CITIZEN OWES THE RECIPROCAL DUTY, ACCORDING TO HIS
CAPACITY, TO SUPPORT AND DEFEND GOVERNMENT AGAINST ALL ENEMIES. 
SELECTIVE DRAFT LAW CASES, SUPRA, P. 378.  MINOR V. HAPPERSETT, 21
WALL.  162, 166." 

FN13  UNITED STATES V. MACINTOSH, 283 U.S. 605, 625-26: 

"IF THE ATTITUDE OF THIS CLAIMANT, AS SHOWN BY HIS STATEMENTS AND THE
INFERENCES PROPERLY TO BE DEDUCED FROM THEM, BE HELD IMMATERIAL TO THE
QUESTION OF HIS FITNESS FOR ADMISSION TO CITIZENSHIP, WHERE SHALL THE
LINE BE DRAWN?  UPON WHAT GROUND OF DISTINCTION MAY WE HEREAFTER REJECT
ANOTHER APPLICANT WHO SHALL EXPRESS HIS WILLINGNESS TO RESPECT ANY
PARTICULAR PRINCIPLE OF THE CONSTITUTION OR OBEY ANY FUTURE STATUTE
ONLY UPON THE CONDITION THAT HE SHALL ENTERTAIN THE OPINION THAT IT IS
MORALLY JUSTIFIED?  THE APPLICANT'S ATTITUDE, IN EFFECT, IS A REFUSAL
TO TAKE THE OATH OF ALLEGIANCE EXCEPT IN AN ALTERED FORM.  THE
QUALIFICATIONS UPON WHICH HE INSISTS, IT IS TRUE, ARE MADE BY PAROL AND
NOT BY WAY OF WRITTEN AMENDMENT TO THE OATH; BUT THE SUBSTANCE IS THE
SAME." 

MR. JUSTICE BLACK, DISSENTING. 

THE STATE OF ILLINOIS HAS DENIED THE PETITIONER THE RIGHT TO PRACTICE
HIS PROFESSION AND TO EARN HIS LIVING AS A LAWYER.  IT HAS DENIED HIM A
LICENSE ON THE GROUND THAT HIS PRESENT RELIGIOUS BELIEFS DISQUALIFY HIM
FOR MEMBERSHIP IN THE LEGAL PROFESSION.  THE QUESTION IS, THEREFORE,
WHETHER A STATE WHICH REQUIRES A LICENSE AS A PREREQUISITE TO
PRACTICING LAW CAN DENY AN APPLICANT A LICENSE SOLELY BECAUSE OF HIS
DEEPLY-ROOTED RELIGIOUS CONVICTIONS.  THE FACT THAT PETITIONER MEASURES
UP TO EVERY OTHER REQUIREMENT FOR ADMISSION TO THE BAR SET BY THE STATE
DEMONSTRATES BEYOND DOUBT THAT THE ONLY REASON FOR HIS REJECTION WAS
HIS RELIGIOUS BELIEFS. 

THE STATE DOES NOT DENY THAT PETITIONER POSSESSES THE FOLLOWING
QUALIFICATIONS: 

HE IS HONEST, MORAL, AND INTELLIGENT, HAS HAD A COLLEGE AND A LAW
SCHOOL EDUCATION.  HE HAS BEEN A LAW PROFESSOR AND FULLY MEASURES UP TO
THE HIGH STANDARDS OF LEGAL KNOWLEDGE ILLINOIS HAS SET AS A
PREREQUISITE TO ADMISSION TO PRACTICE LAW IN THAT STATE.  HE HAS NEVER
BEEN CONVICTED FOR, OR CHARGED WITH, A VIOLATION OF LAW.  THAT HE WOULD
SERVE HIS CLIENTS FAITHFULLY AND EFFICIENTLY IF ADMITTED TO PRACTICE IS
NOT DENIED.  HIS IDEALS OF WHAT A LAWYER SHOULD BE INDICATE THAT HIS
ACTIVITIES WOULD NOT REFLECT DISCREDIT UPON THE BAR, THAT HE WOULD
STRIVE TO MAKE THE LEGAL SYSTEM A MORE EFFECTIVE INSTRUMENT OF
JUSTICE.  BECAUSE HE THINKS THAT "LAWSUITS DO NOT BRING LOVE AND
BROTHERLINESS, THEY JUST CREATE ANTAGONISMS," HE WOULD, AS A LAWYER,
EXERT HIMSELF TO ADJUST CONTROVERSIES OUT OF COURT, BUT WOULD
VIGOROUSLY PRESS HIS CLIENT'S CAUSE IN COURT IF EFFORTS TO ADJUST
FAILED.  EXPLAINING TO HIS EXAMINERS SOME OF THE REASONS WHY HE WANTED
TO BE A LAWYER, HE TOLD THEM:  "I THINK THERE IS A LOT OF WORK TO BE
DONE IN THE LAW....  I THINK THE LAW HAS A PLACE TO SEE TO IT THAT
EVERY MAN HAS A CHANCE TO EAT AND A CHANCE TO LIVE EQUALLY.  I THINK
THE LAW HAS A PLACE WHERE PEOPLE CAN GO AND GET JUSTICE DONE FOR
THEMSELVES WITHOUT PAYING TOO MUCH, FOR THE BULK OF PEOPLE THAT ARE TOO
POOR."  NO ONE CONTENDS THAT SUCH A VISION OF THE LAW IN ACTION IS
EITHER ILLEGAL OR REPREHENSIBLE.    THE PETITIONER'S DISQUALIFYING
RELIGIOUS BELIEFS STEM CHIEFLY FROM A STUDY OF THE NEW TESTAMENT AND A
LITERAL ACCEPTANCE OF THE TEACHINGS OF CHRIST AS HE UNDERSTANDS THEM. 
THOSE BELIEFS ARE THESE: 

HE IS OPPOSED TO THE USE OF FORCE FOR EITHER OFFENSIVE OR DEFENSIVE
PURPOSES.  THE TAKING OF HUMAN LIFE UNDER ANY CIRCUMSTANCES HE BELIEVES
TO BE AGAINST THE LAW OF GOD AND CONTRARY TO THE BEST INTERESTS OF
MAN.  HE WOULD IF HE COULD, HE TOLD HIS EXAMINERS, OBEY TO THE LETTER
THESE PRECEPTS OF CHRIST:  "LOVE YOUR ENEMIES; DO GOOD TO THOSE THAT
HATE YOU; EVEN THOUGH YOUR ENEMY STRIKE YOU ON YOUR RIGHT CHEEK, TURN
TO HIM YOUR LEFT CHEEK ALSO."  FN1  THE RECORD OF HIS EVIDENCE BEFORE
US BEARS CONVINCING MARKS OF THE DEEP SINCERITY OF HIS CONVICTIONS, AND
COUNSEL FOR ILLINOIS WITH COMMENDABLE CANDOR DOES NOT QUESTION THE
GENUINENESS OF HIS PROFESSIONS. 

I CANNOT BELIEVE THAT A STATE STATUTE WOULD BE CONSISTENT WITH OUR
CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION IF IT SPECIFICALLY
DENIED THE RIGHT TO PRACTICE LAW TO ALL MEMBERS OF ONE OF OUR GREAT
RELIGIOUS GROUPS, PROTESTANT, CATHOLIC, OR JEWISH.  YET THE QUAKERS
HAVE HAD A LONG AND HONORABLE PART IN THE GROWTH OF OUR NATION, AND AN
AMICUS CURIAE BRIEF FILED IN THEIR BEHALF INFORMS US THAT UNDER THE
TEST APPLIED TO THIS PETITIONER, NOT ONE OF THEM IF TRUE TO THE TENETS
OF THEIR FAITH COULD QUALIFY FOR THE BAR IN ILLINOIS.  AND IT IS
OBVIOUS THAT THE SAME DISQUALIFICATION WOULD EXIST AS TO EVERY
CONSCIENTIOUS OBJECTOR TO THE USE OF FORCE, EVEN THOUGH THE CONGRESS OF
THE UNITED STATES SHOULD CONTINUE ITS PRACTICE OF ABSOLVING THEM FROM
MILITARY SERVICE.  THE CONCLUSION SEEMS TO ME INESCAPABLE THAT IF
ILLINOIS CAN BAR THIS PETITIONER FROM THE PRACTICE OF LAW IT CAN BAR
EVERY PERSON FROM EVERY PUBLIC OCCUPATION SOLELY BECAUSE HE BELIEVES IN
NON-RESISTANCE RATHER THAN IN FORCE.  FOR A LAWYER IS NO MORE SUBJECT
TO CALL FOR MILITARY DUTY THAN A PLUMBER, A HIGHWAY WORKER, A SECRETARY
OF STATE, OR A PRISON CHAPLAIN. 

IT MAY BE, AS MANY PEOPLE THINK, THAT CHRIST'S GOSPEL OF LOVE AND
SUBMISSION IS NOT SUITED TO A WORLD IN WHICH MEN STILL FIGHT AND KILL
ONE ANOTHER.  BUT I AM NOT READY TO SAY THAT A MERE PROFESSION OF
BELIEF IN THAT GOSPEL IS A SUFFICIENT REASON TO KEEP OTHERWISE WELL
QUALIFIED MEN OUT OF THE LEGAL PROFESSION, OR TO DRIVE LAW-ABIDING
LAWYERS OF THAT BELIEF OUT OF THE PROFESSION, WHICH WOULD BE THE NEXT
LOGICAL DEVELOPMENT. 

NOR AM I WILLING TO SAY THAT SUCH A BELIEF CAN BE PENALIZED THROUGH
THE CIRCUITOUS METHOD OF PRESCRIBING AN OATH, AND THEN BARRING AN
APPLICANT ON THE GROUND THAT HIS PRESENT BELIEF MIGHT LATER PROMPT HIM
TO DO OR REFRAIN FROM DOING SOMETHING THAT MIGHT VIOLATE THAT OATH. 
TEST OATHS, DESIGNED TO IMPOSE CIVIL DISABILITIES UPON MEN FOR THEIR
BELIEFS RATHER THAN FOR UNLAWFUL CONDUCT, WERE AN ABOMINATION TO THE
FOUNDERS OF THIS NATION.  THIS FEELING WAS MADE MANIFEST IN ARTICLE VI
OF THE CONSTITUTION WHICH PROVIDES THAT "NO RELIGIOUS TEST SHALL EVER
BE REQUIRED AS A QUALIFICATION TO ANY OFFICE OR PUBLIC TRUST UNDER THE
UNITED STATES."  CUMMINGS V. MISSOURI, 4 WALL.  277; EX PARTE GARLAND,
4 WALL.  333. 

THE STATE'S DENIAL OF PETITIONER'S APPLICATION TO PRACTICE LAW
RESOLVES ITSELF INTO A HOLDING THAT IT IS LAWFULLY REQUIRED THAT ALL
LAWYERS TAKE AN OATH TO SUPPORT THE STATE CONSTITUTION AND THAT
PETITIONER'S RELIGIOUS CONVICTIONS AGAINST THE USE OF FORCE MAKE IT
IMPOSSIBLE FOR HIM TO OBSERVE THAT OATH.  THE PETITIONER DENIES THIS
AND IS WILLING TO TAKE THE OATH.  THE PARTICULAR CONSTITUTIONAL
PROVISION INVOLVED AUTHORIZES THE LEGISLATURE TO DRAFT ILLINOIS
CITIZENS FROM 18 TO 45 YEARS OF AGE FOR MILITIA SERVICE.  IT CAN BE
ASSUMED THAT THE STATE OF ILLINOIS HAS THE CONSTITUTIONAL POWER TO
DRAFT CONSCIENTIOUS OBJECTORS FOR WAR DUTY AND TO PUNISH THEM FOR A
REFUSAL TO SERVE AS SOLDIERS,  - POWERS WHICH THIS COURT HELD THE
UNITED STATES POSSESSES IN UNITED STATES V. SCHWIMMER, 279 U.S. 644,
AND UNITED STATES V. MACINTOSH, 283 U.S. 605.  BUT THAT IS NOT TO SAY
THAT ILLINOIS COULD CONSTITUTIONALLY USE THE TEST OATH IT DID IN THIS
CASE.  IN THE SCHWIMMER AND MACINTOSH CASES ALIENS WERE BARRED FROM
NATURALIZATION BECAUSE THEIR THEN RELIGIOUS BELIEFS WOULD BAR THEM FROM
BEARING ARMS TO DEFEND THE COUNTRY.  DISSENTS IN BOTH CASES RESTED IN
PART ON THE PREMISE THAT RELIGIOUS TESTS ARE INCOMPATIBLE WITH OUR
CONSTITUTIONAL GUARANTEE OF FREEDOM OF THOUGHT AND RELIGION.  IN THE
SCHWIMMER CASE DISSENT, MR. JUSTICE HOLMES SAID THAT "IF THERE IS ANY
PRINCIPLE OF THE CONSTITUTION THAT MORE IMPERATIVELY CALLS FOR
ATTACHMENT THAN ANY OTHER IT IS THE PRINCIPLE OF FREE THOUGHT - NOT
FREE THOUGHT FOR THOSE WHO AGREE WITH US BUT FREEDOM FOR THE THOUGHT
THAT WE HATE.  I THINK THAT WE SHOULD ADHERE TO THAT PRINCIPLE WITH
REGARD TO ADMISSION INTO, AS WELL AS TO LIFE WITHIN THIS COUNTRY."  PP.
654-655.  IN THE MACINTOSH CASE DISSENT, MR. CHIEF JUSTICE HUGHES SAID,
"TO CONCLUDE THAT THE GENERAL OATH OF OFFICE IS TO BE INTERPRETED AS
DISREGARDING THE RELIGIOUS SCRUPLES OF THESE CITIZENS AND AS
DISQUALIFYING THEM FOR OFFICE BECAUSE THEY COULD NOT TAKE THE OATH WITH
SUCH AN INTERPRETATION WOULD, I BELIEVE, BE GENERALLY REGARDED AS
CONTRARY NOT ONLY TO THE SPECIFIC INTENT OF THE CONGRESS BUT AS
REPUGNANT TO THE FUNDAMENTAL PRINCIPLE OF REPRESENTATIVE GOVERNMENT." 
P. 632.  I AGREE WITH THE CONSTITUTIONAL PHILOSOPHY UNDERLYING THE
DISSENTS OF MR. JUSTICE HOLMES AND MR. CHIEF JUSTICE HUGHES. 

THE ILLINOIS CONSTITUTION ITSELF PROHIBITS THE DRAFT OF CONSCIENTIOUS
OBJECTORS EXCEPT IN TIME OF WAR AND ALSO EXCEPTS FROM MILITIA DUTY
PERSONS WHO ARE "EXEMPTED BY THE LAWS OF THE UNITED STATES."  IT HAS
NOT DRAFTED MEN INTO THE MILITIA SINCE 1864, AND IF IT EVER SHOULD
AGAIN, NO ONE CAN SAY THAT IT WILL NOT, AS HAS THE CONGRESS OF THE
UNITED STATES, EXEMPT MEN WHO HONESTLY ENTERTAIN THE VIEWS THAT THIS
PETITIONER DOES.  THUS THE PROBABILITY THAT ILLINOIS WOULD EVER CALL
THE PETITIONER TO SERVE IN A WAR HAS LITTLE MORE REALITY THAN AN
IMAGINARY QUANTITY IN MATHEMATICS. 

I CANNOT AGREE THAT A STATE CAN LAWFULLY BAR FROM A SEMI-PUBLIC
POSITION A WELL-QUALIFIED MAN OF GOOD CHARACTER SOLELY BECAUSE HE
ENTERTAINS A RELIGIOUS BELIEF WHICH MIGHT PROMPT HIM AT SOME TIME IN
THE FUTURE TO VIOLATE A LAW WHICH HAS NOT YET BEEN AND MAY NEVER BE
ENACTED.  UNDER OUR CONSTITUTION MEN ARE PUNISHED FOR WHAT THEY DO OR
FAIL TO DO AND NOT FOR WHAT THEY THINK AND BELIEVE.  FREEDOM TO THINK,
TO BELIEVE, AND TO WORSHIP, HAS TOO EXALTED A POSITION IN OUR COUNTRY
TO BE PENALIZED ON SUCH AN ILLUSORY BASIS.  WEST VIRGINIA BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624, 643-646. 

I WOULD REVERSE THE DECISION OF THE STATE SUPREME COURT. 

FN1  THE QUOTATIONS ARE THE PETITIONER'S PARAPHRASE OF THE KING JAMES
TRANSLATION OF VERSES 38, 39 AND 44 OF ST. MATTHEW, CHAPTER 5, WHICH
READ AS FOLLOWS: 

"YE HAVE HEARD THAT IT HATH BEEN SAID, AN EYE FOR AN EYE, AND A TOOTH
FOR A TOOTH: 

"BUT I SAY UNTO YOU, THAT YE RESIST NOT EVIL:  BUT WHOSOEVER SHALL
SMITE THEE ON THY RIGHT CHEEK, TURN TO HIM THE OTHER ALSO  ... 

"BUT I SAY UNTO YOU, LOVE YOUR ENEMIES, BLESS THEM THAT CURSE YOU, DO
GOOD TO THEM THAT HATE YOU, AND PRAY FOR THEM WHICH DESPITEFULLY USE
YOU, AND PERSECUTE YOU  ..." 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, AND MR. JUSTICE RUTLEDGE
CONCUR IN THIS OPINION. 
..END :










10 EAST 40TH ST. CO. V. CALLUS, 325 U.S. 578 


NO. 820.  ARGUED APRIL 6, 1945.  - DECIDED JUNE 11, 1945.  - 146 F.2D
438, REVERSED. 


1.  MAINTENANCE EMPLOYEES OF A TYPICAL METROPOLITAN OFFICE BUILDING,
OPERATED AS AN INDEPENDENT ENTERPRISE, WHICH IS USED AND TO BE USED FOR
OFFICES BY EVERY VARIETY OF TENANTS, INCLUDING SOME PRODUCERS OF GOODS
FOR COMMERCE, HELD NOT TO HAVE SUCH A CLOSE AND IMMEDIATE TIE WITH THE
PROCESS OF PRODUCTION AS TO BE DEEMED ENGAGED IN AN "OCCUPATION
NECESSARY TO THE PRODUCTION" OF GOODS FOR COMMERCE, WITHIN THE MEANING
OF SEC. 3(J) OF THE FAIR LABOR STANDARDS ACT, AND THEREFORE NOT COVERED
BY THE ACT.  P. 583. 

2.  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, BORDEN CO. V. BORELLA,
POST, P. 679, AND THIS CASE DIFFERENTIATED.  P. 580. 

10 EAST 40TH STREET BUILDING, INC. V. CALLUS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 324 U.S. 833, TO REVIEW THE REVERSAL OF A JUDGMENT, 51
F.SUPP.  528, DISMISSING THE COMPLAINT IN A SUIT UNDER SEC. 16(B) OF
THE FAIR LABOR STANDARDS ACT TO RECOVER AMOUNTS ALLEGED TO BE DUE FOR
OVERTIME. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE FAIR LABOR STANDARDS ACT OF 1938 REGULATES WAGES AND HOURS NOT
ONLY OF EMPLOYEES WHO ARE "ENGAGED IN COMMERCE" BUT ALSO THOSE ENGAGED
"IN THE PRODUCTION OF GOODS FOR COMMERCE."  SECTIONS 6, 7, 52 STAT.
1060, 1062-63, 29 U.S.C. SECS. 206, 207.  FOR THE PURPOSES OF THAT ACT
"AN EMPLOYEE SHALL BE DEEMED TO HAVE BEEN ENGAGED IN THE PRODUCTION OF
GOODS IF SUCH EMPLOYEE WAS EMPLOYED ...  IN ANY PROCESS OR OCCUPATION
NECESSARY TO THE PRODUCTION THEREOF, IN ANY STATE."  SEC. 3(J).  WHEN
THESE PROVISIONS FIRST CAME HERE WE MADE IT ABUNDANTLY CLEAR THAT THEIR
ENFORCEMENT WOULD INVOLVE THE COURTS IN THE EMPIRIC PROCESS OF DRAWING
LINES FROM CASE TO CASE, AND INEVITABLY NICE LINES.  KIRSCHBAUM CO. V.
WALLING, 316 U.S. 517.  AND THIS FOR TWO REASONS.  IN ENACTING THIS
STATUTE CONGRESS DID NOT SEE FIT, AS IT DID IN OTHER REGULATORY
MEASURES, E.G., THE INTERSTATE COMMERCE ACT AND THE NATIONAL LABOR
RELATIONS ACT, TO EXHAUST ITS CONSTITUTIONAL POWER OVER COMMERCE.  AND
"UNLIKE THE INTERSTATE COMMERCE ACT AND THE NATIONAL LABOR RELATIONS
ACT AND OTHER LEGISLATION, THE FAIR LABOR STANDARDS ACT PUTS UPON THE
COURTS THE INDEPENDENT RESPONSIBILITY OF APPLYING AD HOC THE GENERAL
TERMS OF THE STATUTE TO AN INFINITE VARIETY OF COMPLICATED INDUSTRIAL
SITUATIONS."  KIRSCHBAUM CO. V. WALLING, SUPRA, AT 523.  THUS, CONGRESS
WITHHELD FROM THE COURTS THE AID OF CONSTITUTIONAL CRITERIA, COMPARE,
E.G., CURRIN V. WALLACE, 306 U.S. 1; WICKARD V. FILBURN, 317 U.S. 111;
POLISH ALLIANCE V. LABOR BOARD, 322 U.S. 643, AS WELL AS THE BENEFIT OF
A PRIOR JUDGMENT, ON VEXING AND AMBIGUOUS FACTS, BY AN EXPERT
ADMINISTRATIVE AGENCY.  COMPARE, E.G., LABOR BOARD V. FRUEHAUF CO., 301
U.S. 49; GRAY V. POWELL, 314 U.S. 402, 412. 

THE ACT HAS PRODUCED A CONSIDERABLE VOLUME OF LITIGATION AND HAS
INEVITABLY GIVEN RISE TO JUDICIAL CONFLICTS AND DIVISIONS.  THE LOWER
COURTS, AND ONLY IN A LESSER MEASURE THIS COURT, HAVE BEEN PLAGUED WITH
PROBLEMS IN CONNECTION WITH EMPLOYEES OF BUILDINGS OCCUPIED BY THOSE
HAVING AT LEAST SOME RELATION TO GOODS THAT EVENTUALLY FIND THEIR WAY
INTO INTERSTATE COMMERCE. 

IN KIRSCHBAUM CO. V. WALLING, SUPRA, WE WERE CONCERNED WITH
MAINTENANCE EMPLOYEES OF BUILDINGS CONCEDEDLY DEVOTED TO MANUFACTURE
FOR COMMERCE.  IN BORDEN CO. V. BORELLA, POST, P. 679, THE FAIR LABOR
STANDARDS ACT WAS INVOKED ON BEHALF OF MAINTENANCE EMPLOYEES OF A
BUILDING OWNED BY AN INTERSTATE PRODUCER AND PREDOMINANTLY OCCUPIED FOR
ITS OFFICES.  RECOGNIZING THAT THE QUESTION IN EVERY CASE IS "WHETHER
THE PARTICULAR SITUATION IS WITHIN THE REGULATED AREA," WE CONCLUDED
THAT THE EMPLOYEES OF THE BUILDINGS IN THE KIRSCHBAUM CASE "HAD SUCH A
CLOSE AND IMMEDIATE TIE WITH THE PROCESS OF PRODUCTION" CARRIED ON BY
THE LESSEES AS TO COME WITHIN THE ACT.  THE BORDEN CASE INVOLVED BORDEN
EMPLOYEES WHO, IF THEY HAD BEEN UNDER THE SAME ROOF WHERE THE PHYSICAL
HANDLING OF THE GOODS TOOK PLACE, COULD HARDLY, WITHOUT DRAWING
GOSSAMER AND NOT MERELY NICE LINES, BE DEEMED NOT TO BE ENGAGED IN AN
"OCCUPATION NECESSARY TO THE PRODUCTION OF GOODS" AS DESCRIBED BY SEC.
3(J).  TO DIFFERENTIATE, IN THE INCIDENCE OF THE FAIR LABOR STANDARDS
ACT, BETWEEN MAINTENANCE EMPLOYEES WHO WORKED IN THE BUILDING WHERE THE
BUSINESS OF THE MANUFACTURE OF MILK PRODUCTS GOES ON AND EMPLOYEES
PURSUING THE SAME OCCUPATION FOR THE BORDEN ENTERPRISE IN AN OFFICE
SEPARATE FROM THE MANUFACTURING BUILDING, IS TO MAKE TOO MUCH TURN ON
THE ACCIDENT OF THE DIVISION OF THE WHOLE INDUSTRIAL PROCESS.  THE CASE
IMMEDIATELY BEFORE US PRESENTS STILL A THIRD SITUATION DIFFERING BOTH
FROM KIRSCHBAUM AND BORDEN. 

THE FACTS ARE THESE.  PETITIONER OWNS AND MANAGES A 48-STORY NEW YORK
OFFICE BUILDING.  THE OFFICES ARE LEASED TO MORE THAN A HUNDRED TENANTS
PURSUING A GREAT VARIETY OF ENTERPRISES INCLUDING EXECUTIVE AND SALES
OFFICES OF MANUFACTURING AND MINING CONCERNS, SALES AGENCIES
REPRESENTING SUCH CONCERNS, ENGINEERING AND CONSTRUCTION FIRMS,
ADVERTISING AND PUBLICITY AGENCIES, LAW FIRMS, INVESTMENT AND CREDIT
ORGANIZATIONS AND THE UNITED STATES EMPLOYMENT SERVICE.  THE
DISTRIBUTION OF OCCUPANCY IN RELATION TO THE ULTIMATE ENTERPRISES OF
THE DIFFERENT GROUPS OF TENANTS WAS THE SUBJECT OF CONFLICTING
TESTIMONY AND INTERPRETATION, BUT IN OUR VIEW DOES NOT CALL FOR
PARTICULARIZATION.  INDISPUTABLY, THE BUILDING IS DEVOTED EXCLUSIVELY
TO OFFICES, AND NO MANUFACTURING IS CARRIED ON WITHIN IT.  THE
RESPONDENTS ARE MAINTENANCE EMPLOYEES OF THE BUILDING, ELEVATOR
STARTERS AND OPERATORS, WINDOW CLEANERS, WATCHMEN AND THE LIKE.  THEY
BROUGHT THIS SUIT UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT FOR
CLAIMS OF OVERTIME PAYMENT TO WHICH THEY ARE ENTITLED IF THEIR
OCCUPATIONS BE DEEMED "NECESSARY TO THE PRODUCTION" OF GOODS FOR
COMMERCE.  OBVIOUSLY THEY ARE NOT "ENGAGED IN COMMERCE."  THE DISTRICT
COURT DISMISSED THE SUIT.  51 F.SUPP.  528.  THE CIRCUIT COURT OF
APPEALS REVERSED.  146 F.2D 438.  BY A METICULOUS CALCULATION, IT FOUND
THAT THE EXECUTIVE OFFICES OF MANUFACTURING AND MINING CONCERNS, SALES
AGENCIES REPRESENTING SUCH CONCERNS, AND PUBLICITY CONCERNS WERE
ENGAGED IN THE PRODUCTION OF GOODS FOR INTERSTATE COMMERCE, AND, SINCE
THE OFFICES OF THESE CONCERNS OCCUPIED 42% OF THE RENTABLE AREA AND 48%
OF THE RENTED AREA, THE MAINTENANCE EMPLOYEES OF THE OWNERS OF THE
BUILDING ARE ENGAGED IN OCCUPATIONS "NECESSARY TO THE PRODUCTION" OF
GOODS FOR COMMERCE.  CONFLICT BETWEEN THIS RESULT AND THAT REACHED BY
OTHER CIRCUITS LED US TO BRING THE CASE HERE.  324 U.S. 833.  FN1 

THE SERIES OF CASES IN WHICH WE HAVE HAD TO DECIDE WHEN EMPLOYEES ARE
ENGAGED IN AN "OCCUPATION NECESSARY TO THE PRODUCTION" OF GOODS FOR
COMMERCE HAS SETTLED AT LEAST SOME MATTERS.  MERELY BECAUSE AN
OCCUPATION INVOLVES A FUNCTION NOT INDISPENSABLE TO THE PRODUCTION OF
GOODS, IN THE SENSE THAT IT CAN BE DONE WITHOUT, DOES NOT EXCLUDE IT
FROM THE SCOPE OF THE FAIR LABOR STANDARDS ACT.  CONVERSELY, MERELY
BECAUSE AN OCCUPATION IS INDISPENSABLE, IN THE SENSE OF BEING INCLUDED
IN THE LONG CHAIN OF CAUSATION WHICH BRINGS ABOUT SO COMPLICATED A
RESULT AS FINISHED GOODS, DOES NOT BRING IT WITHIN THE SCOPE OF THE
FAIR LABOR STANDARDS ACT.  SEE WALLING V. JACKSONVILLE PAPER CO., 317
U.S. 564; WALTON V. SOUTHERN PACKAGE CORP., 320 U.S. 540; ARMOUR & CO.
V. WANTOCK, 323 U.S. 126; SKIDMORE V. SWIFT & CO., 323 U.S. 134.  IN
GIVING A FAIR APPLICATION TO SEC. 3(J), COURTS MUST REMEMBER THAT THE
"NECESSARY" IN THE PHRASE "NECESSARY TO THE PRODUCTION" OF GOODS FOR
COMMERCE "IS COLORED BY THE CONTEXT NOT ONLY OF THE TERMS OF THIS
LEGISLATION BUT OF ITS IMPLICATIONS IN THE RELATION BETWEEN STATE AND
NATIONAL AUTHORITY."  KIRSCHBAUM CO. V. WALLING, SUPRA, AT 525.  FOR AS
WAS POINTED OUT IN WALLING V. JACKSONVILLE PAPER CO., SUPRA, AT 570, WE
CANNOT "BE UNMINDFUL THAT CONGRESS IN ENACTING THIS STATUTE PLAINLY
INDICATED ITS PURPOSE TO LEAVE LOCAL BUSINESS TO THE PROTECTION OF THE
STATES."  WE MUST BE ALERT, THEREFORE, NOT TO ABSORB BY ADJUDICATION
ESSENTIALLY LOCAL ACTIVITIES THAT CONGRESS DID NOT SEE FIT TO TAKE OVER
BY LEGISLATION. 

RENTING OFFICE SPACE IN A BUILDING EXCLUSIVELY SET ASIDE FOR AN
UNRESTRICTED VARIETY OF OFFICE WORK SPONTANEOUSLY SATISFIES THE COMMON
UNDERSTANDING OF WHAT IS LOCAL BUSINESS AND MAKES THE EMPLOYEES OF SUCH
A BUILDING ENGAGED IN LOCAL BUSINESS.  MERE SEPARATION OF AN OCCUPATION
FROM THE PHYSICAL PROCESS OF PRODUCTION DOES NOT PRECLUDE APPLICATION
OF THE FAIR LABOR STANDARDS ACT.  BUT REMOTENESS OF A PARTICULAR
OCCUPATION FROM THE PHYSICAL PROCESS IS A RELEVANT FACTOR IN DRAWING
THE LINE.  RUNNING AN OFFICE BUILDING AS AN ENTIRELY INDEPENDENT
ENTERPRISE IS TOO MANY STEPS REMOVED FROM THE PHYSICAL PROCESS OF THE
PRODUCTION OF GOODS.  SUCH REMOTENESS IS INSULATED FROM THE FAIR LABOR
STANDARDS ACT BY THOSE CONSIDERATIONS PERTINENT TO THE FEDERAL SYSTEM
WHICH LED CONGRESS NOT TO SWEEP PREDOMINANTLY LOCAL SITUATIONS WITHIN
THE CONFINES OF THE ACT.  TO ASSIGN THE MAINTENANCE MEN OF SUCH AN
OFFICE BUILDING TO THE PRODUCTIVE PROCESS BECAUSE SOME PROPORTION OF
THE OFFICES IN THE BUILDING MAY, FOR THE TIME BEING, BE OFFICES OF
MANUFACTURING ENTERPRISES IS TO INDULGE IN AN ANALYSIS TOO ATTENUATED
FOR APPROPRIATE REGARD TO THE REGULATORY POWER OF THE STATES WHICH
CONGRESS SAW FIT TO RESERVE TO THEM.  DIALECTIC INCONSISTENCIES DO NOT
WEAKEN THE VALIDITY OF PRACTICAL ADJUSTMENTS, AS BETWEEN THE STATE AND
FEDERAL AUTHORITY, WHEN CONGRESS HAS CAST THE DUTY OF MAKING THEM UPON
THE COURTS.  OUR PROBLEM IS NOT AN EXERCISE IN SCHOLASTIC LOGIC. 

THE DIFFERENCES BETWEEN EMPLOYEES OF A BUILDING OWNED BY OCCUPANTS
PRODUCING THEREIN GOODS FOR COMMERCE, AND THE EMPLOYEES OF A BUILDING
INTENDED FOR TENANTS WHO PRODUCE SUCH GOODS THEREIN, AND THE EMPLOYEES
OF THE OFFICE BUILDING OF A LARGE INTERSTATE PRODUCER, ARE TOO THIN FOR
THE PRACTICALITIES OF ADJUDICATION.  BUT AN OFFICE BUILDING EXCLUSIVELY
DEVOTED TO THE PURPOSE OF HOUSING ALL THE USUAL MISCELLANY OF OFFICES
HAS MANY DIFFERENCES IN THE PRACTICAL AFFAIRS OF LIFE FROM A
MANUFACTURING BUILDING, OR THE OFFICE BUILDING OF A MANUFACTURER.  AND
THE DIFFERENCES ARE TOO IMPORTANT IN THE SETTING OF THE FAIR LABOR
STANDARDS ACT NOT TO BE RECOGNIZED BY THE COURTS. 

WE HAVE HERETOFORE TRIED TO INDICATE THE NATURE OF THE NEXUS BETWEEN
EMPLOYEES WHO, THOUGH NOT THEMSELVES ENGAGED IN COMMERCE, ARE ENGAGED
IN OCCUPATIONS NECESSARY FOR THE PRODUCTION OF GOODS FOR COMMERCE BY
DESCRIBING THE NECESSARY WORK THAT BRINGS THE OCCUPATION WITHIN THE
SCOPE OF THE ACT AS WORK THAT HAD "A CLOSE AND IMMEDIATE TIE WITH THE
PROCESS OF PRODUCTION."  KIRSCHBAUM CO. V. WALLING, SUPRA, AT 525. 
DOUBTLESS MORE FELICITOUS ADJECTIVES COULD BE CHOSEN, BUT THE ATTEMPT
TO ACHIEVE A FORM OF WORDS THAT COULD AVOID AN EXERCISE OF JUDGMENT
THAT A PARTICULAR OCCUPATION IS MORE IN THE NATURE OF LOCAL BUSINESS
THAN NOT, IS MERELY TO BE CONTENT WITH FORMULAS OF ILLUSORY CERTAINTY. 

ON THE TERMS IN WHICH CONGRESS DREW THE LEGISLATION WE CANNOT ESCAPE
THE DUTY OF DRAWING LINES.  AND WHEN LINES HAVE TO BE DRAWN THEY ARE
BOUND TO APPEAR ARBITRARY WHEN JUDGED SOLELY BY BORDERING CASES.  TO
SPEAK OF DRAWING LINES IN ADJUDICATION IS TO EXPRESS FIGURATIVELY THE
TASK OF KEEPING IN MIND THE CONSIDERATIONS RELEVANT TO A PROBLEM AND
THE DUTY OF COMING DOWN ON THE SIDE OF THE CONSIDERATIONS HAVING
CONTROLLING WEIGHT.  LINES ARE NOT THE WORSE FOR BEING NARROW IF THEY
ARE DRAWN ON RATIONAL CONSIDERATIONS.  IT IS A DISTINCTION APPROPRIATE
TO THE SUBJECT MATTER TO HOLD THAT WHERE OCCUPATIONS FORM PART OF A
DISTINCTIVE ENTERPRISE, SUCH AS THE ENTERPRISE OF RUNNING AN OFFICE
BUILDING, THEY ARE PROPERLY TO BE TREATED AS DISTINCT FROM THOSE
NECESSARY PARTS OF A COMMERCIAL PROCESS WHICH ALONE, WITH DUE REGARD TO
LOCAL REGULATIONS, CONGRESS DEALT WITH IN THE FAIR LABOR STANDARDS
ACT.  OF COURSE AN ARGUMENT CAN BE MADE ON THE OTHER SIDE.  THAT IS
WHAT IS MEANT BY A QUESTION OF DEGREE, AS IS THE QUESTION BEFORE US.
BUT FOR DRAWING THE FIGURATIVE LINE THE BASIS MUST BE SOMETHING
PRACTICALLY RELEVANT TO THE PROBLEM IN HAND.  WE BELIEVE THAT IS TRUE
OF THE LINE DRAWN IN THIS CASE.  JUDGMENT REVERSED. 

FN1  SEE, E.G., JOHNSON V. DALLAS DOWNTOWN DEVELOPMENT CO., 132 F.2D
287; COCHRAN V. FLORIDA NAT. BLDG. CORP., 134 F.2D 615; TATE V. EMPIRE
BLDG. CORP., 135 F.2D 743; JOHNSON V. MASONIC BLDG. CORP., 138 F.2D
817. 

MR. CHIEF JUSTICE STONE. 

THE VIEWS I EXPRESSED IN MY DISSENT IN BORDEN CO. V. BORELLA, POST,
P. 679, WOULD, IF ACCEPTED, CONTROL THE DECISION IN THIS CASE.  AS
THOSE VIEWS HAVE BEEN REJECTED BY THE COURT, I JOIN IN THE COURT'S
OPINION IN THIS CASE. 

MR. JUSTICE MURPHY, DISSENTING. 

A PROPER UNDERSTANDING OF THE NATURE OF THE ACTIVITIES CARRIED ON IN
PETITIONER'S 48-STORY OFFICE BUILDING IN NEW YORK CITY LEADS TO THE
INEVITABLE CONCLUSION THAT THE RESPONDENT MAINTENANCE EMPLOYEES, LIKE
THOSE IN KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, AND IN BORDEN CO. V.
BORELLA, POST, P. 679, ARE ENGAGED IN OCCUPATIONS "NECESSARY TO THE
PRODUCTION OF GOODS FOR COMMERCE" AND HENCE ARE ENTITLED TO THE
BENEFITS OF THE FAIR LABOR STANDARDS ACT OF 1938. 

(1)  APPROXIMATELY 26% OF THE RENTABLE AREA OF THE BUILDING IS
OCCUPIED BY THE EXECUTIVE OFFICES OF MANUFACTURING AND MINING CONCERNS
WHICH ARE CONCEDEDLY ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE. 
CORPORATE POLICIES ARE FORMED AND DIRECTED FROM THESE OFFICES.  MOST OF
THEM PURCHASE RAW MATERIALS FOR USE IN THE PHYSICAL PROCESSES OF
MANUFACTURING.  THEY KEEP IN CONSTANT AND CLOSE CONTACT WITH THE
FACTORIES, SUPERVISING ALL OF THE MANUFACTURING ACTIVITIES.  SOME OF
THESE OFFICES DRAFT DESIGNS AND SPECIFICATIONS FOR THE ARTICLES
PRODUCED IN THE FACTORIES.  BUSINESS AND SALES DEPARTMENTS LOCATED IN
THESE OFFICES DO WORK IN CONNECTION WITH THE DISTRIBUTION OF THESE
PRODUCTS.  ONE OFFICE EVEN HANDLES PARTS FOR THE MACHINES MANUFACTURED
BY THE COMPANY, DOING REPAIR WORK ON THE PARTS AND PACKING AND SHIPPING
THEM TO OUT-OF-STATE CUSTOMERS.    THE CASE IN THIS RESPECT IS
INDISTINGUISHABLE FROM THE FACTS IN THE BORDEN CASE.  HERE, AS IN THE
BORDEN CASE, THE OFFICERS AND EMPLOYEES WORKING IN THESE OFFICES ARE
PART OF THE COORDINATED PRODUCTIVE PATTERN OF MODERN INDUSTRY.  THE
FACT THAT NONE OF THE PHYSICAL PROCESSES OF MANUFACTURING OCCURS IN THE
SAME BUILDING IS IMMATERIAL.  PRODUCTION REQUIRES CENTRAL PLANNING,
CONTROL, SUPERVISION, PURCHASE OF RAW MATERIALS, DESIGNING OF PRODUCTS,
SALES PROMOTION AND THE LIKE AS WELL AS THE PHYSICAL, MANUAL PROCESSES
OF MANUFACTURING.  THESE VARIOUS CENTRAL OFFICES, THEN, ARE "PART OF AN
INTEGRATED EFFORT FOR THE PRODUCTION OF GOODS," ARMOUR & CO. V.
WANTOCK, 323 U.S. 126, 130.  AND SINCE THE MAINTENANCE EMPLOYEES STAND
IN THE SAME RELATION TO THIS PRODUCTIVE PROCESS AS DID THE EMPLOYEES IN
THE KIRSCHBAUM CASE, IT FOLLOWS THAT THEY ARE ENGAGED IN OCCUPATIONS
"NECESSARY TO THE PRODUCTION OF GOODS FOR COMMERCE." 

THE KIRSCHBAUM CASE ALSO MADE IT CLEAR THAT THE PROVISIONS OF THE ACT
"EXPRESSLY MAKE ITS APPLICATION DEPENDENT UPON THE CHARACTER OF THE
EMPLOYEES' ACTIVITIES."  316 U.S. AT 524.  HENCE IT IS IMMATERIAL THAT
THE OWNER OF THE BUILDING WHICH EMPLOYS THE RESPONDENT MAINTENANCE
EMPLOYEES IS NOT SHOWN TO HAVE BEEN ENGAGED IN THE PRODUCTION OF GOODS
FOR COMMERCE.  AS IN THE KIRSCHBAUM CASE, IT IS ENOUGH IF THE EMPLOYEES
ARE NECESSARY TO THE PRODUCTION OF GOODS BY TENANTS OCCUPYING THE
BUILDING IN WHICH THEY WORK. 

(2)  APPROXIMATELY 6.5% OF THE RENTABLE AREA OF THE BUILDING IS
OCCUPIED BY CONCERNS ENGAGED IN WRITING AND PREPARING MIMEOGRAPHED,
PHOTOGRAPHIC AND PRINTED MATTER WHICH IS SHIPPED IN INTERSTATE
COMMERCE.  ONE COMPANY PRODUCES BETWEEN 15,000 AND 20,000 PAGES OF
MIMEOGRAPHED MATERIALS PER WEEK, 90% OF WHICH IS SENT OUTSIDE THE
STATE.  ANOTHER TENANT PRODUCES 60 MAGAZINES HAVING NATIONAL
CIRCULATIONS.  OTHER CONCERNS PRODUCE LARGE QUANTITIES OF PAMPHLETS,
PHOTOGRAPHS, MAGAZINES AND ADVERTISING MATTER FOR INTERSTATE SHIPMENT. 

SINCE TELEGRAPHIC MESSAGES ARE "GOODS" WITHIN THE MEANING OF THE ACT,
WESTERN UNION CO. V. LENROOT, 323 U.S. 490, 502-503, IT WOULD SEEM
CLEAR THAT THESE MAGAZINES, PAMPHLETS, ETC. WHICH ARE PREPARED IN
PETITIONER'S OFFICE BUILDING ARE LIKEWISE "GOODS."  AND SINCE THE TERM
"PRODUCED" INCLUDES "EVERY KIND OF INCIDENTAL OPERATION PREPARATORY TO
PUTTING GOODS INTO THE STREAM OF COMMERCE," IBID., 503, THE WRITING AND
PREPARATION OF THESE MATERIALS CONSTITUTES "PRODUCTION OF GOODS" FOR
INTERSTATE COMMERCE.  HERE AGAIN THE RESPONDENT MAINTENANCE EMPLOYEES
ARE RELATED TO PRODUCTION IN THE SAME WAY AS WERE THE EMPLOYEES IN THE
KIRSCHBAUM CASE, THUS MAKING IT CLEAR THAT THEY ARE COVERED BY THE ACT
FROM THIS STANDPOINT. 

IT IS UNNECESSARY TO DESCRIBE THE ACTIVITIES OF THE OTHER TENANTS,
ALTHOUGH IT IS CONCEDED THAT ABOUT 58% OF THE TOTAL RENTABLE AREA IS
OCCUPIED BY CONCERNS NOT ENGAGED IN THE PRODUCTION OF GOODS FOR
COMMERCE.  IT IS SUFFICIENT THAT APPROXIMATELY 32.5% OF THE RENTABLE
AREA IS DEVOTED TO PRODUCTION.  THE ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION OF THE DEPARTMENT OF LABOR HAS STATED THAT HE WILL TAKE NO
ENFORCEMENT ACTION "WITH RESPECT TO MAINTENANCE EMPLOYEES IN BUILDINGS
IN WHICH LESS THAN 20 PERCENT OF THE SPACE IS OCCUPIED BY FIRMS ENGAGED
THERE OR ELSEWHERE IN THE PRODUCTION OF GOODS FOR COMMERCE."  WAGE AND
HOUR DIVISION RELEASE, NOVEMBER 19, 1943, P.R.-19(REV.).  WHETHER 20%
OCCUPANCY BY SUCH FIRMS IS A REASONABLE MINIMUM IS NOT IN ISSUE HERE. 
CLEARLY A 32.5% OCCUPANCY IS SO SUBSTANTIAL AS TO REMOVE ANY DOUBT THAT
THE MAINTENANCE EMPLOYEES DEVOTE A LARGE PART OF THEIR TIME TO
ACTIVITIES NECESSARY TO THE PRODUCTION OF GOODS FOR COMMERCE.  HENCE
THEY ARE COVERED BY THE ACT. 

THE STARTING POINT IN CASES OF THIS NATURE IS NOT TO DECIDE WHETHER
THE ACTIVITIES CARRIED ON IN THE OFFICE BUILDING IN QUESTION SATISFY
SOME NEBULOUS "COMMON UNDERSTANDING OF WHAT IS LOCAL BUSINESS."  THE
CRUCIAL PROBLEM, RATHER, IS TO DETERMINE WHETHER SUCH ACTIVITIES
CONSTITUTE AN INTEGRAL PART OF THE PRODUCTIVE PROCESS.  ONCE IT IS
CLEAR THAT THE ACTIVITIES ARE PART OF THE PROCESS OF PRODUCTION OF
GOODS FOR INTERSTATE COMMERCE THE INTERSTATE CHARACTER OF THE
ACTIVITIES BECOMES OBVIOUS; AND IT FOLLOWS THAT OCCUPATIONS NECESSARY
TO THOSE ACTIVITIES PARTAKE OF THEIR INTERSTATE FLAVOR.  NEITHER
ATTENUATED ANALYSIS NOR SCHOLASTIC LOGIC IS NECESSARY TO UNDERSTAND THE
SCOPE AND CO-ORDINATION OF THE MODERN PRODUCTIVE PATTERN AND THE
INTEGRAL PART PLAYED BY THOSE WHO MANAGE AND DIRECT THE PHYSICAL
PROCESSES OF PRODUCTION.  TO APPLY THE ACT IN LIGHT OF ELEMENTARY
ECONOMIC FACTS IS NOT BEYOND THE ABILITY OF JUDGES OR BEYOND THE
INTENTION OF CONGRESS. 

CONGRESS PLAINLY INTENDED "TO LEAVE LOCAL BUSINESS TO THE PROTECTION
OF THE STATES," WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564, 570,
WHEN IT ENACTED THIS STATUTE.  BUT THERE IS NO INDICATION THAT IT
INTENDED TO DIVIDE THE PROCESS OF PRODUCING GOODS FOR INTERSTATE
COMMERCE INTO INTERSTATE AND LOCAL SEGMENTS, APPLYING THE STATUTE ONLY
TO THE FORMER.  AND WHEN CONGRESS SAID THAT EMPLOYEES "NECESSARY TO THE
PRODUCTION" OF GOODS FOR COMMERCE WERE TO BE INCLUDED WITHIN THE ACT,
IT MEANT JUST THAT, WITHOUT LIMITATION TO THOSE WHO WERE NECESSARY ONLY
TO THE PHYSICAL MANUFACTURING ASPECTS OF PRODUCTION.  UNDER SUCH
CIRCUMSTANCES IT IS OUR DUTY TO RECOGNIZE ECONOMIC REALITY IN
INTERPRETING AND APPLYING THE MANDATE OF THE PEOPLE. 

MR. JUSTICE BLACK, MR. JUSTICE REED AND MR. JUSTICE RUTLEDGE JOIN IN
THIS DISSENT. 
..END :












NEBRASKA V. WYOMING, 325 U.S. 589 


ARGUED MARCH 5, 6, 7, 1945.  - DECIDED JUNE 11, 1945. 


1.  IN A PROCEEDING WITHIN THE ORIGINAL JURISDICTION OF THIS COURT,
BROUGHT BY NEBRASKA AGAINST WYOMING, IN WHICH COLORADO WAS IMPLEADED AS
A DEFENDANT AND THE UNITED STATES WAS GRANTED LEAVE TO INTERVENE, THIS
COURT MAKES AN EQUITABLE APPORTIONMENT BETWEEN THE STATES OF THE WATER
OF THE NORTH PLATTE RIVER.  PP. 591, 610. 

2.  COLORADO AND WYOMING HAVING THE RULE OF PRIORITY OF
APPROPRIATION, AND THAT RULE BEING DOMINANT IN THE NEBRASKA AREAS
AFFECTED, THE CASE IS TREATED AS INVOLVING APPROPRIATION RIGHTS IN THE
THREE STATES.  P. 599. 

3.  SINCE THE DEPENDABLE NATURAL FLOW OF THE RIVER DURING THE
IRRIGATION SEASON HAS LONG BEEN OVER-APPROPRIATED, SINCE THE CLAIMS OF
THE STATES TO THE WATER OF THE RIVER ARE BASED NOT ONLY ON PRESENT USES
BUT ON PROJECTED ADDITIONAL USES AS WELL, AND SINCE THE CLAIMS TO THE
WATER EXCEED THE SUPPLY, THERE EXISTS A CONFLICT OF INTERESTS OF THAT
CHARACTER AND DIGNITY WHICH MAKES THE CONTROVERSY A JUSTICIABLE ONE
WITHIN THE ORIGINAL JURISDICTION OF THIS COURT.  WYOMING V. COLORADO,
259 U.S. 419, FOLLOWED.  P. 610. 

4.  THE WATER RIGHTS ON WHICH THE NORTH PLATTE PROJECT AND THE
KENDRICK PROJECT REST HAVING BEEN OBTAINED IN COMPLIANCE WITH STATE
LAW, IT IS UNNECESSARY TO DETERMINE WHAT RIGHTS TO UNAPPROPRIATED WATER
OF THE RIVER THE UNITED STATES MAY HAVE.  NOR IS IT IMPORTANT TO THE
DECREE TO BE ENTERED IN THIS CASE THAT THERE MAY BE UNAPPROPRIATED
WATER TO WHICH THE UNITED STATES MAY IN THE FUTURE ASSERT RIGHTS
THROUGH THE MACHINERY OF STATE LAW OR OTHERWISE.  P. 611. 

ASSUMING ARGUENDO THAT THE UNITED STATES DID OWN ALL OF THE
UNAPPROPRIATED WATER, THE APPROPRIATIONS UNDER STATE LAW WERE MADE TO
THE INDIVIDUAL LANDOWNERS PURSUANT TO THE PROCEDURE WHICH CONGRESS
PROVIDED IN THE RECLAMATION ACT, AND THE RIGHTS SO ACQUIRED ARE AS
DEFINITE AND COMPLETE AS IF THEY WERE OBTAINED BY DIRECT CESSION FROM
THE FEDERAL GOVERNMENT.  P. 615. 

5.  ALLOCATION OF THE WATER RIGHTS HERE IN QUESTION TO THE STATES,
WHO REPRESENT THEIR CITIZENS PARENS PATRIAE IN THIS PROCEEDING, IN NO
WISE INTERFERES WITH THE OWNERSHIP AND OPERATION BY THE UNITED STATES
OF ITS STORAGE AND POWER PLANTS, WORKS, AND FACILITIES.  P. 616. 

6.  THE DIFFICULTIES OF DRAFTING AND ENFORCING A DECREE APPORTIONING
THE WATER OF THE RIVER AMONG THE CLAIMANT STATES - WHERE EFFORTS AT
SETTLEMENT HAVE FAILED; A GENUINE CONTROVERSY EXISTS; AND THE GRAVITY
*P590 AND IMPORTANCE OF THE CASE ARE APPARENT - DO NOT JUSTIFY REFUSAL
BY THIS COURT TO PERFORM THE IMPORTANT FUNCTION ENTRUSTED TO IT BY THE
CONSTITUTION.  P. 616. 

7.  EQUITABLE APPORTIONMENT AMONG APPROPRIATION STATES DOES NOT
REQUIRE A LITERAL APPLICATION OF THE PRIORITY RULE.  P. 618. 

ALTHOUGH PRIORITY OF APPROPRIATION IS THE GUIDING PRINCIPLE, OTHER
RELEVANT FACTORS INCLUDE: PHYSICAL AND CLIMATIC CONDITIONS; THE
CONSUMPTIVE USE OF WATER IN THE SEVERAL SECTIONS OF THE RIVER; THE
CHARACTER AND RATE OF RETURN FLOWS; THE EXTENT OF ESTABLISHED USES; THE
AVAILABILITY OF STORAGE WATER; THE PRACTICAL EFFECT OF WASTEFUL USES ON
DOWNSTREAM AREAS; THE DAMAGE TO UPSTREAM AREAS AS COMPARED TO THE
BENEFITS TO DOWNSTREAM AREAS IF A LIMITATION IS IMPOSED ON THE FORMER. 

8.  THE DECREE OF EQUITABLE APPORTIONMENT TO BE ENTERED IN THIS CASE
MUST DEAL WITH CONDITIONS AS THEY EXIST AT PRESENT AND MUST BE BASED ON
THE DEPENDABLE FLOW OF THE RIVER WHICH IS NOT GREATER THAN THE AVERAGE
CONDITION WHICH HAS PREVAILED SINCE 1930.  P. 620. 

9.  THE DECREE OF EQUITABLE APPORTIONMENT WHICH IS ENTERED APPORTIONS
THE NATURAL FLOW OF THE RIVER AMONG THE THREE STATES TO THE TRI-STATE
DAM IN NEBRASKA BUT NOT BELOW IT.  PP. 621, 654. 

10.  THE UNITED STATES IS NOT GIVEN A SEPARATE ALLOCATION OF WATER,
SINCE THE WATER RIGHTS APPROPRIATED BY THE SECRETARY OF THE INTERIOR
WERE ADJUDICATED TO BE IN THE INDIVIDUAL LANDOWNERS AND SINCE THE
UNITED STATES AS AN APPROPRIATOR OF STORAGE WATER IS REPRESENTED BY THE
STATE OF WYOMING.  P. 629. 

11.  STORAGE WATER IS NOT INCLUDED IN THE APPORTIONMENT, ALTHOUGH IT
IS TAKEN INTO ACCOUNT IN DETERMINING EACH STATE'S EQUITABLE SHARE OF
THE NATURAL FLOW.  P. 639. 

12.  THE COURT RETAINS JURISDICTION OF THE SUIT FOR THE PURPOSE OF
ANY ORDER, DIRECTION, OR MODIFICATION OF THE DECREE, OR ANY
SUPPLEMENTARY DECREE, THAT MAY AT ANY TIME BE DEEMED PROPER IN RELATION
TO THE SUBJECT MATTER OF THE CONTROVERSY.  P. 655. 

NEBRASKA V. WYOMING ET AL. 

NO. 6, ORIGINAL.  BILL IN EQUITY. 

BILL IN EQUITY BY NEBRASKA AGAINST WYOMING (IN WHICH COLORADO WAS
IMPLEADED AS A DEFENDANT AND THE UNITED STATES WAS GRANTED LEAVE TO
INTERVENE) SEEKING AN EQUITABLE APPORTIONMENT OF THE WATER OF THE NORTH
PLATTE RIVER AND AN INJUNCTION RESTRAINING ALLEGED WRONGFUL
DIVERSIONS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

NEBRASKA BROUGHT THIS SUIT IN 1934 AGAINST WYOMING, INVOKING OUR
ORIGINAL JURISDICTION UNDER ARTICLE III, SEC. 2 OF THE CONSTITUTION. 
293 U.S. 523.  COLORADO WAS IMPLEADED AS A DEFENDANT.  296 U.S. 553. 
THE UNITED STATES WAS GRANTED LEAVE TO INTERVENE.  304 U.S. 545. 
ISSUES WERE JOINED.  A SPECIAL MASTER, HONORABLE MICHAEL J. DOHERTY,
WAS APPOINTED AND HEARINGS WERE HELD BEFORE HIM.  THE MATTER IS BEFORE
US ON EXCEPTIONS TO HIS REPORT. 

           I 

THE CONTROVERSY PERTAINS TO THE USE FOR IRRIGATION PURPOSES OF THE
WATER OF THE NORTH PLATTE RIVER, A NON-NAVIGABLE STREAM.  NEBRASKA
ALLEGED THAT WYOMING AND COLORADO BY DIVERSIONS OF WATER FROM THE RIVER
FOR IRRIGATION PURPOSES WERE VIOLATING THE RULE OF PRIORITY OF
APPROPRIATION IN FORCE IN THE THREE STATES AND DEPRIVING NEBRASKA OF
WATER TO WHICH SHE WAS EQUITABLY ENTITLED.  THE PRAYER WAS FOR A
DETERMINATION OF THE EQUITABLE SHARE OF EACH STATE IN THE WATER AND OF
THE PRIORITIES OF ALL APPROPRIATIONS IN BOTH STATES, AND FOR AN
INJUNCTION RESTRAINING THE ALLEGED WRONGFUL DIVERSIONS.  WYOMING DENIED
THE DIVERSION OR USE OF ANY WATER TO WHICH NEBRASKA WAS EQUITABLY
ENTITLED BUT JOINED IN THE PRAYER OF NEBRASKA FOR AN EQUITABLE
APPORTIONMENT.  COLORADO FILED AN ANSWER, TOGETHER WITH A CROSS-BILL
AGAINST NEBRASKA AND WYOMING, WHICH DENIED ANY USE OR THREATENED USE OF
THE WATER OF THE NORTH PLATTE BEYOND HER EQUITABLE SHARE, AND PRAYED
FOR AN EQUITABLE APPORTIONMENT BETWEEN THE THREE STATES, EXCEPTING ONLY
THE TRIBUTARY WATERS OF THE SOUTH PLATTE AND LARAMIE RIVERS.  FN1  AT
THE CONCLUSION OF NEBRASKA'S CASE AND AGAIN AFTER ALL THE EVIDENCE WAS
IN, COLORADO MOVED TO DISMISS THE SUIT ON THE GROUND THAT THE EVIDENCE
WAS INSUFFICIENT TO SUSTAIN ANY JUDGMENT IN FAVOR OF, OR AGAINST, ANY
PARTY.  COLORADO ARGUES HERE THAT THERE SHOULD BE NO AFFIRMATIVE RELIEF
AGAINST HER AND THAT SHE SHOULD BE DISMISSED FROM THE CASE. 

THE NORTH PLATTE RIVER RISES IN NORTHERN COLORADO IN THE MOUNTAINOUS
REGION KNOWN AS NORTH PARK.  FN2  IT PROCEEDS IN A NORTHERLY DIRECTION
ON THE EAST SIDE OF THE CONTINENTAL DIVIDE, ENTERS WYOMING WEST OF
CHEYENNE, AND CONTINUES IN A NORTHERLY DIRECTION TO THE VICINITY OF
CASPER.  THERE IT TURNS EAST ACROSS THE GREAT PLAINS AND PROCEEDS
EASTERLY AND SOUTHERLY INTO AND ACROSS NEBRASKA.  ABOUT 40 MILES WEST
OF THE NEBRASKA LINE IT IS JOINED BY THE LARAMIE RIVER.  AT NORTH
PLATTE, NEBRASKA, IT IS JOINED BY THE SOUTH PLATTE, FORMING THE PLATTE
RIVER.  IT EMPTIES INTO THE MISSOURI RIVER AT PLATTSMOUTH, NEAR THE
WESTERN BORDER OF IOWA.  IN NORTH PARK IT IS A RAPID MOUNTAIN STREAM. 
IN EASTERN WYOMING IT GRADUALLY BROADENS OUT, LOSING VELOCITY.  IN
WESTERN AND CENTRAL NEBRASKA ITS CHANNEL RANGES FROM 3,000 TO 6,000
FEET; IT FREQUENTLY DIVIDES INTO SMALL CHANNELS; AND IN TIMES OF LOW
WATER IS LOST IN THE DEEP SANDS OF ITS BED.  HERE IT IS SOMETIMES
CHARACTERIZED AS A RIVER "TWO MILES WIDE AND ONE INCH DEEP." 

THERE ARE SIX NATURAL SECTIONS OF THE RIVER BASIN:  (1) NORTH PARK,
COLORADO, OR MORE ACCURATELY JACKSON COUNTY; (2) COLORADO-WYOMING LINE
TO THE PATHFINDER RESERVOIR LOCATED BETWEEN RAWLINS AND CASPER,
WYOMING; (3) PATHFINDER RESERVOIR TO WHALEN, WYOMING, WHICH IS 42 MILES
FROM THE NEBRASKA LINE; (4) WHALEN, WYOMING TO THE TRI-STATE DAM IN
NEBRASKA NEAR THE WYOMING-NEBRASKA LINE; (5) TRI-STATE DAM TO THE
KINGSLEY RESERVOIR, WEST OF KEYSTONE, NEBRASKA; (6) KINGSLEY RESERVOIR
TO GRAND ISLAND, NEBRASKA.  FN3 

THE RIVER BASIN IN COLORADO AND WYOMING IS ARID, IRRIGATION BEING
GENERALLY INDISPENSABLE TO AGRICULTURE.  WESTERN NEBRASKA IS PARTLY
ARID AND PARTLY SEMI-ARID.  IRRIGATION IS INDISPENSABLE TO THE KIND OF
AGRICULTURE ESTABLISHED THERE.  MIDDLE NEBRASKA IS SUB-HUMID.  SOME
CROPS CAN BE RAISED WITHOUT IRRIGATION.  BUT THE LACK OF IRRIGATION
WOULD SERIOUSLY LIMIT DIVERSIFICATION.  EASTERN NEBRASKA, BEGINNING AT
GRAND ISLAND, IS SUFFICIENTLY HUMID SO AS NOT TO JUSTIFY IRRIGATION. 

IRRIGATION IN THE RIVER BASIN BEGAN ABOUT 1865, WHEN SOME PROJECTS
WERE STARTED IN EASTERN WYOMING AND WESTERN NEBRASKA.  BETWEEN 1880 AND
1890 IRRIGATION BEGAN ON A LARGE SCALE.  UNTIL 1909 STORAGE OF WATER
WAS NEGLIGIBLE, IRRIGATION BEING EFFECTED BY DIRECT DIVERSIONS AND
USE.  PRIOR TO 1909 THE DEVELOPMENT IN COLORADO AND WYOMING WAS
RELATIVELY MORE RAPID THAN IN NEBRASKA.  SINCE 1910 THE ACREAGE UNDER
IRRIGATION IN COLORADO INCREASED ABOUT 14 PER CENT, THAT OF WYOMING 31
PER CENT, AND THAT OF NEBRASKA ABOUT 100 PER CENT.  FN4  THE LARGE
INCREASE IN NEBRASKA IS MAINLY ATTRIBUTABLE TO THE USE OF STORAGE WATER
FROM THE PATHFINDER RESERVOIR.  FN5 

THE PATHFINDER RESERVOIR IS PART OF THE "NORTH PLATTE PROJECT" WHICH
FOLLOWED THE ADOPTION BY CONGRESS IN 1902 OF THE RECLAMATION ACT.  32
STAT. 388.  PATHFINDER WAS COMPLETED IN 1913.  IT HAS A CAPACITY OF
1,045,000 ACRE FEET, WHICH IS 79 PER CENT OF THE AVERAGE ANNUAL RUN-OFF
OF THE NORTH PLATTE RIVER AT THAT POINT.  THIS PROJECT INCLUDES AN
AUXILIARY CHANNEL RESERVOIR CALLED GUERNSEY, LOCATED ABOVE WHALEN,
WYOMING.  ITS CAPACITY IS 50,870 ACRE FEET.  THE PROJECT ALSO INCLUDES
TWO SMALL RESERVOIRS IN NEBRASKA - LAKE ALICE AND LAKE MINATARE -
HAVING A CAPACITY OF 11,400 AND 67,000 ACRE FEET RESPECTIVELY.  THERE
ARE TWO MAIN SUPPLY CANALS - INTERSTATE AND FORT LARAMIE - WHICH TAKE
OUT FROM THE NORTH PLATTE AT THE WHALEN DIVERSION DAM.  THE INTERSTATE
CANAL RUNS ON THE NORTH SIDE AND THE FORT LARAMIE ON THE SOUTH SIDE OF
THE RIVER.  BOTH EXTEND FAR INTO NEBRASKA.  NORTHPORT - A THIRD CANAL -
IS LOCATED WHOLLY IN NEBRASKA.  THESE CANALS AND THEIR LATERALS EXTEND
OVER 1,600 MILES.  THE PROJECT ALSO INCLUDES A DRAINAGE SYSTEM AND TWO
HYDROELECTRIC POWER PLANTS.  THE UNITED STATES CONTRACTED WITH
LANDOWNERS OR IRRIGATION DISTRICTS FOR USE OF THE WATER - SELLING IT,
AS CONTEMPLATED BY THE RECLAMATION ACT, SO AS TO RECOUP THE COST OF THE
PROJECT WHICH WAS ABOUT $19,000,000.  IT ALSO ENTERED INTO SO-CALLED
WARREN ACT CONTRACTS PURSUANT TO THE ACT KNOWN BY THAT NAME (36 STAT.
925) WHICH AUTHORIZED THE SECRETARY OF THE INTERIOR TO CONTRACT FOR THE
STORAGE AND DELIVERY OF ANY SURPLUS WATER CONSERVED BY ANY RECLAMATION
PROJECT IN EXCESS OF THE REQUIREMENTS OF THE PROJECT. 

WE HAVE MENTIONED THE INTERSTATE, FT. LARAMIE, AND NORTHPORT CANALS
WHICH ARE PART OF THE NORTH PLATTE PROJECT, THE FIRST TWO OF WHICH TAKE
OUT AT THE WHALEN DIVERSION DAM.  ABOUT A MILE EAST OF THE WYOMING
NEBRASKA LINE IS THE TRI-STATE DAM.  JUST ABOVE THAT DAM IN NEBRASKA
ARE THE HEADGATES OF THREE LARGE NEBRASKA CANALS - TRI-STATE, GERING,
AND NORTHPORT.  WATER FOR THE NORTHPORT IS DIVERTED THROUGH THE TRI
STATE HEADGATE, NORTHPORT PHYSICALLY BEING AN EXTENSION OF THE TRI
STATE CANAL.  ANOTHER NEBRASKA CANAL IS THE RAMSHORN WHICH ALSO
RECEIVES ITS SUPPLY THROUGH TRI-STATE.  JUST ABOVE THE STATE LINE IS
THE HEADGATE OF THE MITCHELL CANAL SERVING NEBRASKA LAND.  WHILE THESE
FIVE CANALS ARE COMMONLY REFERRED TO AS THE NEBRASKA STATE LINE CANALS,
THIS OPINION GENERALLY USES THE TERM AS EXCLUDING NORTHPORT WHICH, AS
WE HAVE SAID, IS A NORTH PLATTE PROJECT CANAL.  THERE ARE ALSO NINE
WYOMING PRIVATE CANALS DIVERTING BELOW WHALEN.  ONE OF THESE, FRENCH
CANAL, SERVES LANDS IN BOTH WYOMING AND NEBRASKA.  THE SECTION OF THE
RIVER FROM WHALEN TO THE TRI-STATE DAM IS THE PIVOTAL SECTION OF THE
ENTIRE RIVER.  IN THIS SHORT STRETCH OF 40-ODD MILES IS CONCENTRATED A
DEMAND FOR WATER AS GREAT AS IN THE ENTIRE PRECEDING 415 MILES APART
FROM THE KENDRICK PROJECT TO WHICH WE WILL REFER.  WE WILL RETURN TO A
CONSIDERATION OF THE PROBLEMS OF THIS PIVOTAL SECTION SHORTLY. 

THE NORTH PLATTE PROJECT HAS GREATLY INCREASED THE WATER RESOURCES OF
THE RIVER AVAILABLE FOR IRRIGATION.  UNUSED AND WASTED WATER ARE STORED
AND HELD OVER FROM ONE SEASON TO ANOTHER.  MOREOVER, THE STORAGE WATER
HAS AFFECTED THE WATER TABLES THROUGH SATURATION OF THE SUBSOIL.  THIS
HAS INCREASED THE RETURN FLOWS AVAILABLE FOR REDIVERSION AND
IRRIGATION.  THE SPECIAL MASTER FOUND THAT DUE LARGELY TO THE INFLUENCE
OF THE NORTH PLATTE PROJECT AND THE APPLICATION OF STORAGE WATER TO
LANDS IN EASTERN WYOMING AND WESTERN NEBRASKA THE RETURN FLOWS
INCREASED FROM A NEGLIGIBLE QUANTITY IN 1911 TO 700,000 ACRE FEET IN
1927.  WHILE THAT AMOUNT SHARPLY DECLINED DURING THE DROUGHT BEGINNING
IN 1931, IT STILL IS SUBSTANTIAL.  THUS FROM 1931-1936 IT AMOUNTED TO
54,300 ACRE FEET IN THE WHALEN-TRI-STATE DAM SECTION.  AND AS WE HAVE
ALREADY SAID, THE GREAT AND DISPROPORTIONATE INCREASE IN ACREAGE
IRRIGATED IN NEBRASKA SINCE 1910 AS COMPARED WITH THE INCREASE IN
COLORADO AND WYOMING IS LARGELY ATTRIBUTABLE TO THE NORTH PLATTE
PROJECT.  WHILE THE NORTH PLATTE PROJECT HAS INCREASED THE WATER
RESOURCES, IT HAS COMPLICATED THE PROBLEM OF WATER ADMINISTRATION IN
WYOMING AND NEBRASKA.  IT HAS NECESSITATED A SEGREGATION OF STORAGE AND
NATURAL FLOW.  THE STORAGE PLANTS AND DIVERSION WORKS ARE IN WYOMING,
ALTHOUGH MUCH OF THE BENEFICIAL USE IS IN NEBRASKA.  APPROPRIATORS IN
NEBRASKA ARE DEPENDENT ON REGULATION AND CONTROL IN WYOMING. 

THERE IS A SECOND LARGE FEDERAL IRRIGATION PROJECT IN WYOMING KNOWN
AS THE KENDRICK PROJECT, THE ESTIMATED COST OF WHICH IS OVER
$19,000,000.  ITS PRIMARY PURPOSE IS THE IRRIGATION OF SOME 66,000
ACRES NORTH AND WEST OF CASPER, WYOMING.  THE FIRST UNIT, CAPABLE OF
SERVING 35,000 ACRES, WAS COMPLETED IN 1940.  DUE TO THE LACK OF WATER
SUPPLY IT HAS NOT YET BEEN PUT INTO OPERATION.  THE SECOND UNIT IS
UNDER CONSTRUCTION.  THE STORAGE FACILITIES ARE COMPLETED.  THEY
CONSIST OF TWO CHANNEL RESERVOIRS - THE SEMINOE, THIRTY MILES ABOVE
PATHFINDER, WITH A CAPACITY OF 1,026,400 ACRE FEET; THE ALCOVA,
THIRTEEN MILES BELOW PATHFINDER, WITH A CAPACITY OF 190,500 ACRE FEET. 
CASPER CANAL WILL DIVERT THE WATER AT ALCOVA AND SERVE THE LANDS OF THE
PROJECT. 

THE COMBINED STORAGE CAPACITY OF THE RESERVOIRS OF THESE TWO FEDERAL
PROJECTS - KENDRICK AND NORTH PLATTE - IS 2,313,270 ACRE FEET WHICH, AS
THE SPECIAL MASTER FOUND, IS 175 PER CENT OF THE LONG-TIME AVERAGE
ANNUAL RUN-OFF OF THE RIVER AT PATHFINDER. 

THERE ARE ALSO TWO PROJECTS IN NEBRASKA - SUTHERLAND, WITH A CAPACITY
OF 175,000 ACRE FEET, AND TRI-COUNTY, WITH A CAPACITY OF 2,000,000 ACRE
FEET.  THE LATTER IS EXPECTED TO BRING UNDER IRRIGATION AN ADDITIONAL
205,000 ACRES IN NEBRASKA.  INCLUDING THAT ACREAGE BUT EXCLUDING THE
60,000 ACRES EXPECTED TO BE IRRIGATED IN WYOMING UNDER THE KENDRICK
PROJECT, THE SPECIAL MASTER FOUND THAT THE ACREAGES UNDER IRRIGATION IN
THE THREE STATES WOULD BE APPROXIMATELY AS FOLLOWS: 

COLORADO...............   131,800  ACRES   (12%) 

WYOMING................   325,720  ACRES     (29%) 

NEBRASKA...............   653,355  ACRES     (59%)

              ------------        --------- 

TOTAL.................. 1,110,875           (100%) 

PRIOR TO THE TIME WHEN THE NORTH PLATTE PROJECT WENT INTO OPERATION
THERE WAS A SERIOUS SHORTAGE OF WATER FOR IRRIGATION IN WESTERN
NEBRASKA AND TO SOME EXTENT IN EASTERN WYOMING.  MANY IRRIGATION
ENTERPRISES WERE CLOSED.  AFTER THE NORTH PLATTE PROJECT HAD BEEN IN
OPERATION FOR AWHILE MOST OF THE PROJECTS WHICH HAD BEEN ABANDONED WERE
REOPENED.  FROM THEN UNTIL 1931 THE SUPPLY WAS REASONABLY ADEQUATE FOR
MOST OF THE CANALS.  BUT THE YEAR 1931 STARTED THE DRIEST CYCLE OR
SWING IN THE NORTH PLATTE AND PLATTE RIVER VALLEYS OF WHICH THERE IS
ANY RECORD.  THE ANNUAL FLOW AT PATHFINDER  FN6  HAD ALWAYS FLUCTUATED
WIDELY.  FN7  THE AVERAGE FLOW FOR THE 37 YEARS COMMENCING IN 1904 WAS
1,315,900 ACRE FEET, THE MAXIMUM WAS 2,399,400 IN 1917, THE MINIMUM WAS
382,200 IN 1934.  BUT A CRITICAL CONDITION AROSE IN 1931 WITH THE
ADVENT OF THE DRY CYCLE.  THE FLOW FOR EACH OF THE YEARS BETWEEN 1931
AND 1940 AS COMPARED WITH THE MEAN OF THE FLOW FOR THE 37-YEAR PERIOD
ENDING IN 1940 WAS AS FOLLOWS: 

1931........ 55 PER CENT  1936........ 81 PER CENT 

1932........116 PER CENT  1937........ 87 PER CENT 

1933........ 89 PER CENT  1938........103 PER CENT 

1934........ 30 PER CENT  1939........ 54 PER CENT 

1935........ 54 PER CENT  1940........ 44 PER CENT 

SINCE 1930 ONLY ONE YEAR EQUALLED THE MEAN OF THE 1904 TO 1930
PERIOD.  PREVIOUS DROUGHTS HAD NOT EXCEEDED TWO OR THREE YEARS.  THE
PRESENT CYCLE HAS PERSISTED FOR 13 YEARS. 

THE COMMENCEMENT OF THIS DRY CYCLE PLUS THE INITIATION OF THE
KENDRICK PROJECT PRECIPITATED THE PRESENT CONTROVERSY.  NEBRASKA RESTS
HER CASE ESSENTIALLY ON EVIDENCE OF SHORTAGE AND OF MISAPPROPRIATION OF
WATER BY THE UPPER STATES SINCE 1930 AND OF THREATS OF MORE SERIOUS
SHORTAGE AND DIVERSIONS IN THE FUTURE. 

                  II 

THE EQUITABLE APPORTIONMENT WHICH NEBRASKA SEEKS IS BASED ON THE
PRINCIPLE OF PRIORITY OF APPROPRIATION APPLIED INTERSTATE.  COLORADO
AND WYOMING HAVE THE RULE OF PRIORITY OF APPROPRIATION AS DISTINGUISHED
FROM THE RULE OF RIPARIAN RIGHTS.  COLO. CONSTITUTION, ART. XVI, SECS.
5, 6; FARMERS' HIGH LINE CANAL CO. V. SOUTHWORTH, 13 COLO. 111, 21 P.
1028; STERNBERGER V. SEATON CO., 45 COLO. 401, 102 P. 168; WYO.
CONSTITUTION, ART. VIII, SEC. 3; WYO. REV. STAT. 1931, SECS. 122-401,
122-418, 122-419; MOYER V. PRESTON, 6 WYO. 308, 44 P. 845.  AND SEE THE
DISCUSSION OF THE PROBLEM IN WYOMING V. COLORADO, 259 U.S. 419, 459. 
NEBRASKA ON THE OTHER HAND WAS ORIGINALLY A RIPARIAN DOCTRINE STATE. 
SEE MENG V. COFFEE, 67 NEB. 500, 93 N.W. 713.  BUT WHEN THE MORE ARID
INCREASED, LEGISLATION WAS ENACTED ADOPTING THE APPROPRIATION
PRINCIPLE.  SEE NEB. L. 1889, CH. 68; L. 1895, CH. 69.  THAT PRINCIPLE
WAS RECOGNIZED IN THE CONSTITUTION WHICH NEBRASKA ADOPTED IN 1920.  SEE
ARTICLE XV, SECS. 4, 5, AND 6.  THE ADOPTION OF THE RULE OF
APPROPRIATION DID NOT EXTINGUISH RIPARIAN RIGHTS WHICH HAD PREVIOUSLY
VESTED.  SEE CLARK V. CAMBRIDGE & ARAPAHOE CO., 45 NEB. 798, 64 N.W.
239; CRAWFORD CO. V. HATHAWAY, 60 NEB. 754, 84 N.W. 271, 61 NEB. 317,
85 N.W. 303, 67 NEB. 325, 93 N.W. 781; OSTERMAN V. CENTRAL NEBRASKA
DISTRICT, 131 NEB. 356, 268 N.W. 334.  BUT RIPARIAN RIGHTS MAY BE
CONDEMNED IN FAVOR OF APPROPRIATORS; AND VIOLATION OF RIPARIAN RIGHTS
BY APPROPRIATORS WILL NOT BE ENJOINED, ONLY COMPENSATION OR DAMAGES
BEING AWARDED.  CLINE V. STOCK, 71 NEB. 79, 102 N.W. 265; MCCOOK
IRRIGATION CO. V. CREWS, 70 NEB. 115, 102 N.W. 249.  IN THAT SENSE
RIPARIAN RIGHTS ARE CONSIDERED INFERIOR TO RIGHTS OF APPROPRIATORS. 
MORE IMPORTANT, THE RIGHTS ASSERTED BY NEBRASKA IN THIS SUIT ARE BASED
WHOLLY ON APPROPRIATIONS WHICH HAVE BEEN OBTAINED AND RECOGNIZED UNDER
NEBRASKA LAW.  THE APPROPRIATION SYSTEM IS DOMINANT IN THE REGIONS OF
NEBRASKA WHICH ARE INVOLVED IN THE PRESENT LITIGATION.  HENCE WE, LIKE
THE SPECIAL MASTER, TREAT THE CASE AS ONE INVOLVING APPROPRIATION
RIGHTS NOT ONLY IN COLORADO AND WYOMING BUT IN NEBRASKA AS WELL. 

NORTH PARK.  THERE ARE AT PRESENT IN THE NORTH PARK AREA IN COLORADO
(JACKSON COUNTY) 131,800 ACRES IRRIGATED.  THE CLIMATE IS ARID.  THE
SOLE INDUSTRY IS CATTLE RAISING, THE ONLY CROPS BEING NATIVE HAY AND
PASTURAGE.  THE GROWING SEASON IS SHORT.  WHILE THE DIVERSIONS ARE HIGH
PER ACRE (ABOUT 4 1/2 ACRE FEET) THE RETURN FLOWS ARE LARGE, MAKING THE
AVERAGE CONSUMPTIVE USE  FN8  RATE ONLY .74 ACRE FOOT PER ACRE.  THE
131,800 ACRES OF IRRIGATED LAND CONSUME 98,572 ACRE FEET ANNUALLY,
INCLUDING RESERVOIR EVAPORATION.  EXPORTATIONS FROM THE BASIN ARE
EXPECTED TO AVERAGE 6,000 ACRE FEET, MAKING THE TOTAL ANNUAL DEPLETION
104,540 ACRE FEET.  THOUGH COLORADO CLAIMED THAT AN ADDITIONAL 100,000
ACRES IN NORTH PARK WAS SUSCEPTIBLE OF IRRIGATION, THE SPECIAL MASTER
FOUND THAT THERE ARE ONLY ABOUT 34,000 ACRES OF ADDITIONAL LAND THAT
COULD BE BROUGHT UNDER IRRIGATION; 30,390 OF THOSE ACRES ARE IRRIGABLE
FROM CONSTRUCTED DITCH SYSTEMS HAVING WATER RIGHTS.  THOSE PROJECTS,
HOWEVER, ARE NOT COMPLETED; THEY ARE INDEED PROJECTS FOR THE INDEFINITE
FUTURE.  IN ADDITION TO THESE PROJECTS IN NORTH PARK, COLORADO ALSO HAS
PROPOSED THAT LARGE QUANTITIES OF WATER FROM THE RIVER BE EXPORTED FROM
THE BASIN INTO OTHER RIVERS. 

THERE HAVE BEEN OUT-OF-PRIORITY DIVERSIONS IN COLORADO AND WYOMING
ABOVE PATHFINDER IN RELATION TO THE PRIORITIES AND NEEDS OF NEBRASKA
USERS.  THEIR FULL EXTENT IS NOT KNOWN.  BUT AS RESPECTS PATHFINDER,
THE SPECIAL MASTER ESTIMATED THAT COLORADO APPROPRIATORS JUNIOR TO
PATHFINDER CONSUME ABOUT 30,000 ACRE FEET A YEAR.  SINCE PATHFINDER
AFTER 1930 HAS NEVER BEEN FILLED AND HAS ALWAYS BEEN IN NEED OF WATER
FOR STORAGE, THOSE COLORADO JUNIOR DIVERSIONS MAY BE SAID TO HAVE
VIOLATED THE PATHFINDER PRIORITY.  THE CLAIMS OF COLORADO TO ADDITIONAL
DEMANDS WERE CONSTRUED BY THE SPECIAL MASTER AS A THREAT OF FURTHER
DEPLETION OF THE RIVER WITHIN NORTH PARK.  HE FOUND THAT THERE WAS NO
SURPLUS IN THE SUPPLY AND THAT ANY MATERIAL INCREASE IN DIVERSIONS IN
COLORADO WOULD BE IN VIOLATION OF ESTABLISHED PRIORITIES, NOTABLY
PATHFINDER. 

COLORADO LINE TO PATHFINDER RESERVOIR.  IN THE REGION BETWEEN THE
COLORADO-WYOMING LINE AND PATHFINDER APPROPRIATION RIGHTS COVER ABOUT
272,000 ACRES, 149,400 OF WHICH ARE IRRIGATED.  BUT OF THOSE ONLY 9,400
ACRES ARE IRRIGATED FROM THE MAIN STREAM, THE BALANCE BEING IRRIGATED
FROM TRIBUTARIES.  THE CONSUMPTIVE USE RATE IS ABOUT 1 ACRE FOOT PER
ACRE.  OVER TWO-THIRDS OF THE VOLUME OF DIVERSIONS (MAIN STREAM AND
TRIBUTARIES) AND 88 PER CENT FROM THE MAIN STREAM ARE SENIOR TO THE
NORTH PLATTE PROJECT.  THEY ARE IN THE MAIN JUNIOR TO THE STATE LINE
CANALS IN NEBRASKA.  THOSE PROJECTS JUNIOR TO PATHFINDER HAVE BEEN
OPERATED SINCE 1930 IN VIOLATION OF ITS PRIORITY.  THE SPECIAL MASTER
FOUND THAT THERE IS NO PRESENT PROSPECT OF ANY LARGE EXPANSION OF
IRRIGATION IN THIS AREA, THOUGH FIVE ADDITIONAL PROJECTS HAVE BEEN
CONTEMPLATED, SOME OF THEM BEING PARTIALLY CONSTRUCTED.  THE ACCRETIONS
TO THE RIVER FROM TRIBUTARIES IN THIS SECTION ARE VERY LARGE - ABOUT
790,240 ACRE FEET NET.  LAND CONSUMPTION IS 16 PER CENT OF THE NET
ACCRETIONS, WHILE THAT OF RIGHTS JUNIOR TO PATHFINDER IS ABOUT 5.6 PER
CENT OF THE NET. 

NORTH PLATTE PROJECT.  THE PRIORITY OF PATHFINDER IS DECEMBER 6, 1904
AND OF GUERNSEY APRIL 20, 1923.  BETWEEN PATHFINDER AND THE NEBRASKA
STATE LINE THERE ARE 32 CANALS ON THE MAIN RIVER WHICH HAVE PRIORITIES
SENIOR TO PATHFINDER.  THE STATE LINE CANALS IN NEBRASKA ALSO ARE
SENIOR TO PATHFINDER.  AND GUERNSEY IS JUNIOR TO ALL CANALS BELOW IT
DOWN TO THE NEBRASKA LINE.  THE PERCENTAGE OF RIGHTS IN EACH SECTION
SENIOR AND JUNIOR TO THE NORTH PLATTE PROJECT ARE AS FOLLOWS:

                                                      PERCENTAGE
PERCENTAGE

                    SENIOR      JUNIOR 

NORTH PARK...................................................
67   33 

COLORADO STATE LINE TO PATHFINDER RESERVOIR..................
88          12 

PATHFINDER RESERVOIR TO WHALEN...............................
52          48 

WHALEN TO NEBRASKA STATE LINE (WYOMING PRIVATE CANALS).......      91
     9 

NEBRASKA STATE LINE CANALS...................................
100           0 

UNDER WYOMING LAW RESERVOIRS IN STORING WATER MUST OBSERVE THE
PRIORITY OF ALL SENIOR WYOMING CANALS BELOW THEM ON THE MAIN RIVER. 

KENDRICK PROJECT.  SEMINOE RESERVOIR HAS A PRIORITY OF DECEMBER 1,
1931; CASPER CANAL, JULY 27, 1934(NATURAL FLOW); ALCOVA RESERVOIR,
APRIL 25, 1936.  APART FROM MINOR EXCEPTIONS SEMINOE IS JUNIOR TO EVERY
APPROPRIATOR FROM ALCOVA TO THE TRI-STATE DAM.  THE PROJECT IS EXPECTED
TO OPERATE CHIEFLY ON STORAGE WATER.  IN ITS EARLY STAGES ITS WATER
REQUIREMENTS WILL BE HEAVIER THAN THEY WILL BE LATER, DUE TO GROUND
ABSORPTION AND STORAGE.  WHEN THE PROJECT HAS BEEN IN OPERATION A
WHILE, THE DEPLETION DURING THE IRRIGATION SEASON WILL BE ABOUT 122,000
ACRE FEET, EXCEPT AS WATER STORED IN NON-IRRIGATION SEASON IS USED. 
THE SPECIAL MASTER FOUND, HOWEVER, THAT WITHOUT VIOLATING THE
PATHFINDER PRIORITY, THE KENDRICK PROJECT COULD HAVE STORED NO WATER
SINCE 1930 AND CAN STORE NONE IN THE FUTURE IF PRESENT CONDITIONS
CONTINUE.  HE ALSO FOUND THAT UNDER THE AVERAGE CONDITIONS WHICH
PREVAILED FROM 1895 TO 1939 WATER COULD BE CONSERVED BY SEMINOE AND
ALCOVA WITHOUT VIOLATION OF THE PRIORITIES BETWEEN PATHFINDER AND TRI
STATE DAM AND IN SUFFICIENT QUANTITIES TO SUPPLY KENDRICK AND TO LEAVE
CONSIDERABLE RETURN FLOW TO THE RIVER IN THE IRRIGATION SEASON.  THERE
ARE IN THE FIRST UNIT OF THE PROJECT TWO SUMP AREAS INTO WHICH RETURN
WATER WILL FLOW AND FROM WHICH THE UNITED STATES HAS CONSTRUCTED
DRAINAGE DITCHES SO AS TO RETURN THE WATER TO THE RIVER.  ON THE
UNCOMPLETED UNIT THREE SUMP AREAS ARE PLANNED.  THESE ARE DESIGNED TO
RETURN TO THE RIVER WATER WHICH OTHERWISE WOULD BE LOST. 

PATHFINDER TO WHALEN.  THE TOTAL LAND IRRIGATED IN THIS SECTION IS IN
EXCESS OF 55,000 ACRES, OF WHICH ABOUT 14,000 ACRES ARE SUPPLIED FROM
THE MAIN RIVER.  ALFALFA, SUGAR BEETS, POTATOES, AND GRAINS ARE THE
PRINCIPAL IRRIGATED CROPS.  THERE ARE 60 CANALS TAKING OUT OF THE MAIN
RIVER WITH PRIORITIES RANGING FROM 1887 TO 1937.  IN TERMS OF ACREAGE
ABOUT 48 PER CENT OF THE RIGHTS ON THE RIVER IN THIS SECTION ARE JUNIOR
TO THE NORTH PLATTE PROJECT.  ALL EXCEPT ONE ARE JUNIOR TO THE TRI
STATE CANAL AND MOST OF THEM ARE JUNIOR TO THE OTHER NEBRASKA STATE
LINE CANALS.  THE IRRIGATION PROJECTS ON THE RIVER AVERAGE NOT OVER 160
ACRES.  THE CONSUMPTIVE USE RATE IS ABOUT 1.1 ACRE FEET PER ACRE.  THE
DIVERSION RATE OF 2.5 ACRE FEET PER ACRE IS DEEMED ADEQUATE.  BUT
DURING THE 1931-1940 PERIOD THE AVERAGE SEASONAL DIVERSION RATE FOR THE
DITCHES ARE UNABLE TO DIVERT ANY WATER.  BUT AT THE RATE OF 2.5 ACRE
FEET THE TOTAL SEASONAL HEADGATE DIVERSION FOR THE 14,000 ACRES IS
35,000 ACRE FEET OF WHICH 18,200 ACRE FEET WOULD BE RETURNED TO THE
RIVER.  OF THAT RETURN ALL BUT 15 PER CENT (2,730 ACRE FEET) WOULD
OCCUR DURING THE IRRIGATION SEASON.  THE TRIBUTARY INFLOW IS GREATER
THAN RIVER DEPLETION DUE TO IRRIGATIONS AND OTHER LOSSES.  THE AVERAGE
ANNUAL NET GAIN FROM 1931-1940 WAS 64,200 ACRE FEET.  DURING THE 1931
1940 PERIOD, THE MAXIMUM SEASONAL AVERAGE CONSUMPTION OUT-OF-PRIORITY
IN RELATION TO THE NEBRASKA STATE LINE CANALS WAS FOUND BY THE SPECIAL
MASTER TO BE 5,400 ACRE FEET.  WITH PROBABLE MINOR EXCEPTIONS THERE ARE
NO FURTHER POSSIBILITIES FOR IRRIGATION DEVELOPMENTS IN THIS SECTION. 

WHALEN TO TRI-STATE DAM.  AS WE HAVE SAID, THIS IS THE PIVOTAL
TURN.  APART FROM THE KENDRICK PROJECT, THE DEMAND FOR WATER IS AS
GREAT IN THIS SHORT SECTION OF THE RIVER AS IN THE ENTIRE PRECEDING 415
MILES FROM NORTH PARK TO WHALEN.  THE LANDS IRRIGATED FROM THE RIVER IN
THIS SECTION TOTAL 326,000 ACRES AS COMPARED WITH 339,200 ACRES IN THE
UPPER VALLEY - MAIN RIVER AND TRIBUTARIES.  THE CONSUMPTIVE USE ON THIS
326,000 ACRES FAR EXCEEDS THAT OF THE UPPER SECTIONS COMBINED.  WE HAVE
MENTIONED THE VARIOUS CANALS WHICH TAKE OUT FROM THE RIVER IN THIS
1,072,514 ACRE FEET.  THE TOTAL NET SEASONAL REQUIREMENT OF ALL THE
CANALS DIVERTING IN THIS SECTION WAS FOUND TO BE 1,027,000 ACRE FEET. 
IN THE TEN-YEAR PERIOD FROM 1931 TO 1940 THIS NET SEASONAL REQUIREMENT
OF 1,027,000 ACRE FEET LARGELY EXCEEDED THE SUPPLY IN THREE YEARS AND
WAS LESS THAN THE SUPPLY IN SEVEN YEARS.  FN9  IN THOSE SEVEN YEARS THE
SEASONAL FLOWS PASSING THE TRI-STATE DAM WERE FAR LESS THAN THE
EXCESSES, INDICATING AS THE SPECIAL MASTER CONCLUDED THAT CANAL
DIVERSIONS IN THE SECTION WERE GREATER THAN THE REQUIREMENTS.  HE
POINTED OUT THAT IF THE DIVERSIONS DURING THE PERIOD HAD BEEN
RESTRICTED TO THE DETERMINED REQUIREMENTS AND IF THE EXCESS HAD BEEN
HELD IN STORAGE IN THE UPPER RESERVOIRS AND RELEASED INDISCRIMINATELY
TO ALL CANALS AS NEEDED, IRRESPECTIVE OF STORAGE RIGHTS, ANY SURPLUS
WATER WOULD HAVE BEEN CONSERVED AND WOULD NOT HAVE PASSED TRI-STATE. 
HE ESTIMATED THAT UNDER THAT METHOD OF OPERATION THE TOTAL SUPPLY
(EXCLUDING ANY SUPPLY FOR KENDRICK) WOULD HAVE BEEN APPROXIMATELY
SUFFICIENT FOR THE SECTION. 

BUT ON THE BASIS OF THE 1931-1940 SUPPLY THE SEASONAL REQUIREMENT OF
1,027,000 ACRE FEET CANNOT BE MET BY NATURAL FLOW ALONE AND WITHOUT
STORAGE WATER.  THE SPECIAL MASTER ROUGHLY ESTIMATED THE DEFICIENCY OF
NATURAL FLOW AS FOLLOWS FOR THE PERIOD OF 1931 TO 1940:

                   DEFICIENCY 

YEAR               OF NATURAL FLOW  FN1 

1931..............552,952 ACRE FEET 

1932..............305,000 ACRE FEET 

1933..............251,980 ACRE FEET 

1934..............841,488 ACRE FEET 

1935..............666,058 ACRE FEET 

1936..............495,737 ACRE FEET 

1937..............489,975 ACRE FEET 

1938..............501,991 ACRE FEET 

1939..............450,908 ACRE FEET 

1940..............751,244 ACRE FEET 

FN1  "NATURAL FLOW," AS USED BY THE SPECIAL MASTER AND AS USED IN
THIS OPINION, MEANS ALL WATER IN THE STREAM EXCEPT THAT WHICH COMES
FROM STORAGE WATER RELEASES. 

ON THAT BASIS THE AVERAGE SEASONAL SUPPLY OF NATURAL FLOW AVAILABLE
IN THIS SECTION WAS ONLY 48 PER CENT OF THE TOTAL REQUIREMENT.  IN
1933, THE YEAR OF LARGEST FLOW, IT WAS ONLY 75 PER CENT. IN GENERAL THE
PRACTICE HAS BEEN TO ALLOW STORAGE RIGHT CANALS HAVING EARLY PRIORITIES
TO RECEIVE NATURAL FLOW WATER ON A PRIORITY BASIS, USING STORAGE WATER
MERELY AS A SUPPLEMENTARY SUPPLY.  IN THIS AREA 90 PER CENT OF THE
LANDS HAVE BOTH NATURAL FLOW AND STORAGE RIGHTS.  FN10  SEVENTY-EIGHT
PER CENT OF THE LANDS HAVING STORAGE RIGHTS ARE IN NEBRASKA, 22 PER
CENT IN WYOMING.  OF THE LANDS HAVING NATURAL FLOW RIGHTS ONLY 49 PER
CENT ARE IN NEBRASKA AND 51 PER CENT IN WYOMING. 

AS RESPECTS PRIORITY, THE CANALS (LISTED LATER IN THIS OPINION) FALL
INTO THIRTEEN GROUPS, SEVEN IN WYOMING AND SIX IN NEBRASKA.  THE
EARLIEST IN PRIORITY ARE SOME CANALS IN WYOMING, THEN SOME IN NEBRASKA,
THEN OTHERS IN WYOMING AND SO ON. 

THE EXCEPTIONAL FEATURES OF THIS SECTION OF THE RIVER WERE SUMMARIZED
BY THE SPECIAL MASTER AS FOLLOWS: 

"(1) THE GREAT CONCENTRATION OF DEMAND IN A SHORT COMPACT SECTION,
(2) THE PRESENCE OF WATER, BOTH NATURAL FLOW AND STORAGE, TO WHICH
NEBRASKA USERS ARE ENTITLED UNDER WYOMING APPROPRIATIONS, (3) THE TOTAL
DEPENDENCE OF NEBRASKA STATE LINE CANALS AND THE NORTH PLATTE PROJECT
CANALS UPON WATER ORIGINATING IN WYOMING AND COLORADO, (4) THE JOINT
USE OF CANALS TO SERVE BOTH WYOMING AND NEBRASKA LANDS, (5) THE
LOCATION IN WYOMING OF THE HEAD GATES AND WORKS WHICH DIVERT GREAT
VOLUMES OF WATER FOR NEBRASKA, (6) THE DISTINCTLY INTERSTATE SCOPE AND
CHARACTER OF THE WATER DISTRIBUTION WITHOUT ANY REAL INTERSTATE
ADMINISTRATION."    THE SPECIAL MASTER MADE A DETAILED STUDY OF THE
REQUIREMENTS OF EACH CANAL IN THIS SECTION AND THE DIVERSIONS OF EACH
DURING THE 1931-1940 PERIOD.  WE NEED NOT RECAPITULATE IT.  THE NINE
WYOMING CANALS AND THE TRI-STATE CANAL FARED WELL.  A COMPARISON OF THE
AVERAGE SEASONAL DIVERSIONS WITH THE SEASONAL REQUIREMENTS SHOWS THAT
THEY HAD AN EXCESS SUPPLY FOR THE TEN-YEAR PERIOD - 122 PER CENT AND
111 PER CENT RESPECTIVELY - THE FORMER HAVING A DEFICIENCY IN ONLY ONE
OF THE TEN YEARS, THE LATTER A DEFICIENCY IN THREE.  FOR THE REST OF
THESE CANALS IT APPEARS THAT THE AVERAGE SEASONAL DIVERSIONS SUPPLIED
FROM 78 PER CENT TO 98 PER CENT OF THEIR SEASONAL REQUIREMENTS.  THE
FT. LARAMIE WAS SHORT IN EIGHT OF THE TEN YEARS, GERING, RAMSHORN AND
NORTHPORT IN SEVEN EACH. 

TRI-STATE DAM TO BRIDGEPORT, NEB.  NEBRASKA ORIGINALLY CLAIMED THAT
ANY EQUITABLE DISTRIBUTION WHICH WAS MADE SHOULD EXTEND TO ALL
IRRIGATED LANDS AS FAR EAST AS GRAND ISLAND, NEB.  IT IS NOW CONCEDED
THAT THE LANDS EAST OF BRIDGEPORT, NEB., WHICH IS SOME SIXTY MILES FROM
THE WYOMING-NEBRASKA STATE LINE, CAN BE REASONABLY SATISFIED OUT OF
LOCAL SUPPLIES.  HENCE WE ARE NOT CONCERNED IN THIS CASE WITH THAT

IN THE SECTION WEST OF BRIDGEPORT, THERE ARE TWELVE CANALS EXCLUSIVE
OF THE RAMSHORN RELEVANT TO THE PRESENT PROBLEM.  THEIR REQUIREMENTS
ARE 132,420 ACRE FEET; THEIR DEMAND ON THE MAIN RIVER IS 102,810 ACRE
FEET, THE BALANCE BEING OBTAINED FROM INTERCEPTIONS OF DRAINS, RETURN
FLOWS, AND TRIBUTARY STREAMS.  THE SPECIAL MASTER CONCLUDED THAT LOCAL
SUPPLIES EVEN DURING THE DROUGHT PERIOD WERE ADEQUATE TO TAKE CARE OF
THE NEEDS OF THESE CANALS WITHOUT CALLING UPON UP-RIVER WATER.  SOME
SHORTAGES OCCURRED, CAUSED FOR EXAMPLE BY EXCESSIVE USE BY SOME CANALS
AT THE EXPENSE OF OTHERS OR BY THE WITHDRAWAL OF WATER FROM THE SECTION
TO SUPPLY SENIOR CANALS BELOW.  IT WOULD SEEM THAT THE CONSTRUCTION AND
OPERATION OF THE KINGSLEY AND SUTHERLAND RESERVOIRS WOULD LARGELY
ELIMINATE THE LATTER CONDITION.  AND WATER PASSING TRI-STATE DAM AND
USABLE IN THE TRI-STATE TO BRIDGEPORT SECTION IS SUBSTANTIAL - THE MEAN
DIVERTIBLE FLOW FOR THE IRRIGATION SEASON IN THE 1931-1940 PERIOD BEING
81,700 ACRE FEET.  OVER HALF OF THIS OCCURRED IN MAY AND JUNE; VERY
LITTLE IN AUGUST AND SEPTEMBER. 

                                 III 

MOTION TO DISMISS.  AS WE HAVE NOTED, COLORADO MOVES TO DISMISS THE
PROCEEDING.  SHE ASSERTS THAT THE PLEADINGS AND EVIDENCE BOTH INDICATE
THAT SHE HAS NOT INJURED NOR PRESENTLY THREATENS TO INJURE ANY
DOWNSTREAM WATER USER.  SHE EMPHASIZES THE LARGE INCREASE SINCE 1910 IN
ACREAGE UNDER IRRIGATION IN WYOMING AND NEBRASKA AS COMPARED WITH THE
INCREASE IN COLORADO.  SHE ASSERTS THERE IS A SURPLUS OF WATER IN THE
STREAM, AS EVIDENCED BY THE FACT THAT DURING THE RECENT DROUGHT OR DRY
CYCLE THE KENDRICK PROJECT IN WYOMING AND THE TRI-COUNTY PROJECT IN
NEBRASKA HAVE BEEN CONSTRUCTED, INDICATING THAT THE SPONSORS CONSIDERED
THAT THE AVAILABLE WATER SUPPLY WAS NOT ENTIRELY USED BY EXISTING
PROJECTS.  AND SHE EMPHASIZES THAT DURING THE DROUGHT THERE WAS A
DIVERTIBLE FLOW PASSING TRI-STATE DAM DURING THE IRRIGATION SEASON. 
THE ARGUMENT IS THAT THE CASE IS NOT OF SUCH SERIOUS MAGNITUDE AND THE
DAMAGE IS NOT SO FULLY AND CLEARLY PROVED AS TO WARRANT THE
INTERVENTION OF THIS COURT UNDER OUR ESTABLISHED PRACTICE.  MISSOURI V.
ILLINOIS, 200 U.S. 496, 521; COLORADO V. KANSAS, 320 U.S. 383, 393
394.  THE ARGUMENT IS THAT THE POTENTIAL THREAT OF INJURY, REPRESENTING
AS IT DOES ONLY A POSSIBILITY FOR THE INDEFINITE FUTURE, IS NO BASIS
FOR A DECREE IN AN INTERSTATE SUIT SINCE WE CANNOT ISSUE DECLARATORY
DECREES.  ARIZONA V. CALIFORNIA, 283 U.S. 423, 462-464, AND CASES
CITED. 

WE FULLY RECOGNIZE THOSE PRINCIPLES.  BUT THEY DO NOT STAND IN THE
WAY OF AN ENTRY OF A DECREE IN THIS CASE. 

THE EVIDENCE SUPPORTS THE FINDING OF THE SPECIAL MASTER THAT THE
DEPENDABLE NATURAL FLOW OF THE RIVER DURING THE IRRIGATION SEASON HAS
LONG BEEN OVER-APPROPRIATED.  A GENUINE CONTROVERSY EXISTS.  THE STATES
HAVE NOT BEEN ABLE TO SETTLE THEIR DIFFERENCES BY COMPACT.  THE AREAS
INVOLVED ARE ARID OR SEMI-ARID.  WATER IN DEPENDABLE AMOUNTS IS
ESSENTIAL TO THE MAINTENANCE OF THE VAST AGRICULTURAL ENTERPRISES
ESTABLISHED ON THE VARIOUS SECTIONS OF THE RIVER.  THE DRY CYCLE WHICH
HAS CONTINUED OVER A DECADE HAS PRECIPITATED A CLASH OF INTERESTS WHICH
BETWEEN SOVEREIGN POWERS COULD BE TRADITIONALLY SETTLED ONLY BY
DIPLOMACY OR WAR.  THE ORIGINAL JURISDICTION OF THIS COURT IS ONE OF
THE ALTERNATIVE METHODS PROVIDED BY THE FRAMERS OF OUR CONSTITUTION. 
MISSOURI V. ILLINOIS, 180 U.S. 208, 241; GEORGIA V. TENNESSEE COPPER
CO., 206 U.S. 230, 237.  THE KENDRICK PROJECT PLAINLY IS AN EXISTING
THREAT TO SENIOR APPROPRIATORS DOWNSTREAM.  AS WE HAVE NOTED, IT IS
JUNIOR TO PRACTICALLY EVERY APPROPRIATION ON THE RIVER BETWEEN ALCOVA
AND THE TRI-STATE DAM.  SINCE 1930 THERE WOULD HAVE BEEN NO WATER FOR
IT IF IT WERE OPERATED ON A PRIORITY BASIS.  AND IN VIEW OF THE GENERAL
POSITION TAKEN BY WYOMING WITH RESPECT TO NEBRASKA PRIORITIES, IT
CANNOT BE ASSUMED THAT THE KENDRICK PROJECT WOULD BE REGULATED FOR THE
BENEFIT OF SENIOR APPROPRIATORS IN NEBRASKA.  NEITHER WYOMING NOR
COLORADO HAS EVER RECOGNIZED ANY EXTENSION OF PRIORITIES ACROSS STATE
LINES.  THEY HAVE NEVER LIMITED OR REGULATED DIVERSIONS BY THEIR
APPROPRIATORS IN SUBORDINATION TO THE SENIOR APPROPRIATORS OF A
DOWNSTREAM STATE.  OUT-OF-PRIORITY DIVERSIONS BY COLORADO HAVE HAD AN
ADVERSE EFFECT DOWNSTREAM.  WE DO NOT KNOW THEIR FULL EXTENT; BUT WE DO
KNOW THAT COLORADO APPROPRIATORS JUNIOR TO PATHFINDER CONSUME ABOUT
30,000 ACRE FEET A YEAR AND THAT PATHFINDER HAS NEVER BEEN FILLED SINCE
1930 AND HAS ALWAYS BEEN IN NEED OF WATER.  THIS ALONE NEGATIVES THE
ABSENCE OF PRESENT INJURY.  THE FACT THAT ON THE AVERAGE THERE IS SOME
WATER PASSING TRI-STATE DAM UNUSED IS NO ANSWER.  WHILE OVER HALF OF
THAT EXCESS AMOUNT OCCURRED IN MAY AND JUNE, THERE WAS COMPARATIVELY
LITTLE IN AUGUST AND SEPTEMBER.  MOREOVER, WE ARE DEALING HERE WITH THE
PROBLEMS OF NATURAL FLOW.  THE CRITICAL CONDITION OF THE SUPPLY OF THE
NATURAL FLOW DURING 1931-1940 IN THE WHALEN TO TRI-STATE DAM SECTION IS
OBVIOUS.  THE CLAIM OF COLORADO TO ADDITIONAL DEMANDS MAY NOT BE
DISREGARDED.  THE FACT THAT COLORADO'S PROPOSED PROJECTS ARE NOT
PLANNED FOR THE IMMEDIATE FUTURE IS NOT CONCLUSIVE IN VIEW OF THE
PRESENT OVER-APPROPRIATION OF NATURAL FLOW.  THE ADDITIONAL DEMANDS ON
THE RIVER WHICH THOSE PROJECTS INVOLVE CONSTITUTE A THREAT OF FURTHER
DEPLETION.  COLORADO IN HER ARGUMENT HERE ASSERTS THAT "IF JACKSON
COUNTY IS TO MAINTAIN ITS LIVESTOCK INDUSTRY TO THE SAME EXTENT AS IT
HAS IN THE PAST IT WILL HAVE TO DEVELOP THIS ADDITIONAL SUMMER PASTURE
AND IT CANNOT DO THIS WITHOUT INCREASING ITS IRRIGATED ACREAGE." 

WHAT WE HAVE THEN IS A SITUATION WHERE THREE STATES ASSERT AGAINST A
RIVER, WHOSE DEPENDABLE NATURAL FLOW DURING THE IRRIGATION SEASON HAS
LONG BEEN OVER-APPROPRIATED, CLAIMS BASED NOT ONLY ON PRESENT USES BUT
ON PROJECTED ADDITIONAL USES AS WELL.  THE VARIOUS STATISTICS WITH
WHICH THE RECORD ABOUNDS ARE INCONCLUSIVE IN SHOWING THE EXISTENCE OR
EXTENT OF ACTUAL DAMAGE TO NEBRASKA.  BUT WE KNOW THAT DEPRIVATION OF
WATER IN ARID OR SEMI-ARID REGIONS CANNOT HELP BUT BE INJURIOUS.  THAT
WAS THE BASIS FOR THE APPORTIONMENT OF WATER MADE BY THE COURT IN
WYOMING V. COLORADO, SUPRA.  THERE THE ONLY SHOWING OF INJURY OR THREAT
OF INJURY WAS THE INADEQUACY OF THE SUPPLY OF WATER TO MEET ALL
APPROPRIATIVE RIGHTS.  AS MUCH IF NOT MORE IS SHOWN HERE.  IF THIS WERE
AN EQUITY SUIT TO ENJOIN THREATENED INJURY, THE SHOWING MADE BY
NEBRASKA MIGHT POSSIBLY BE INSUFFICIENT.  BUT WYOMING V. COLORADO,
SUPRA, INDICATES THAT WHERE THE CLAIMS TO THE WATER OF A RIVER EXCEED
THE SUPPLY A CONTROVERSY EXISTS APPROPRIATE FOR JUDICIAL
DETERMINATION.  IF THERE WERE A SURPLUS OF UNAPPROPRIATED WATER,
DIFFERENT CONSIDERATIONS WOULD BE APPLICABLE.  CF. ARIZONA V.
CALIFORNIA, 298 U.S. 558.  BUT WHERE THERE IS NOT ENOUGH WATER IN THE
RIVER TO SATISFY THE CLAIMS ASSERTED AGAINST IT, THE SITUATION IS NOT
BASICALLY DIFFERENT FROM THAT WHERE TWO OR MORE PERSONS CLAIM THE RIGHT
TO THE SAME PARCEL OF LAND.  THE PRESENT CLAIMANTS BEING STATES, WE
THINK THE CLASH OF INTERESTS TO BE OF THAT CHARACTER AND DIGNITY WHICH
MAKES THE CONTROVERSY A JUSTICIABLE ONE UNDER OUR ORIGINAL
JURISDICTION. 

COLORADO V. KANSAS, SUPRA, IS NOT OPPOSED TO THIS VIEW.  THAT CASE
TURNED ON ITS SPECIAL FACTS.  IT IS TRUE THAT AN APPORTIONMENT OF THE
WATER OF AN INTERSTATE RIVER WAS DENIED IN THAT CASE.  BUT THE
DOWNSTREAM STATE (KANSAS) DID NOT SUSTAIN THE BURDEN OF SHOWING THAT
SINCE THE EARLIER LITIGATION BETWEEN THE STATES (SEE KANSAS V.
COLORADO, 206 U.S. 46), THERE HAD BEEN A MATERIAL INCREASE IN THE
DEPLETION OF THE RIVER BY COLORADO.  IMPROVEMENTS BASED UPON IRRIGATION
HAD BEEN MADE BY COLORADO WHILE KANSAS STOOD BY FOR OVER TWENTY YEARS
WITHOUT PROTEST.  WE HELD THAT IN THOSE CIRCUMSTANCES A PLAIN SHOWING
WAS NECESSARY OF INCREASED DEPLETION AND SUBSTANTIAL INJURY TO WARRANT
A DECREE WHICH WOULD DISRUPT THE ECONOMY OF THE UPSTREAM STATE BUILT
AROUND IRRIGATION.  MOREOVER, WE MADE CLEAR (320 U.S. P. 392, NOTE 2)
THAT WE WERE NOT DEALING THERE WITH A CASE LIKE WYOMING V. COLORADO,
SUPRA, WHERE THE DOCTRINE OF APPROPRIATION APPLIED IN EACH OF THE
STATES WHICH WERE PARTIES TO THE SUIT AND WHERE THERE WAS NOT
SUFFICIENT WATER TO MEET ALL THE PRESENT AND PROSPECTIVE NEEDS. 

COLORADO'S MOTION TO DISMISS IS ACCORDINGLY DENIED. 

                      IV 

CLAIM OF UNITED STATES TO UNAPPROPRIATED WATER.  THE UNITED STATES
CLAIMS THAT IT OWNS ALL THE UNAPPROPRIATED WATER IN THE RIVER.  IT
ARGUES THAT IT OWNED THE THEN UNAPPROPRIATED WATER AT THE TIME IT
ACQUIRED WATER RIGHTS BY APPROPRIATION FOR THE NORTH PLATTE PROJECT AND
THE KENDRICK PROJECT.  ITS BASIC RIGHTS ARE THEREFORE SAID TO DERIVE
NOT FROM APPROPRIATION BUT FROM ITS UNDERLYING OWNERSHIP WHICH ENTITLES
IT TO AN APPORTIONMENT IN THIS SUIT FREE FROM STATE CONTROL.  THE
ARGUMENT IS THAT THE UNITED STATES ACQUIRED THE ORIGINAL OWNERSHIP OF
ALL RIGHTS IN THE WATER AS WELL AS THE LANDS IN THE NORTH PLATTE BASIN
BY CESSIONS FROM FRANCE, SPAIN AND MEXICO IN 1803, 1819, AND 1848, AND
BY AGREEMENT WITH TEXAS IN 1850.  IT SAYS IT STILL OWNS THOSE RIGHTS IN
WATER TO WHATEVER EXTENT IT HAS NOT DISPOSED OF THEM.  AN EXTENSIVE
REVIEW OF FEDERAL WATER LEGISLATION APPLICABLE TO THE PLATTE RIVER
BASIN IS MADE BEGINNING WITH THE ACT OF JULY 26, 1866, 14 STAT. 251,
THE ACT OF JULY 9, 1870, 16 STAT. 217 AND INCLUDING THE DESERT LAND LAW
(ACT OF MARCH 3, 1877, 19 STAT. 377) AND THE RECLAMATION ACT OF JUNE
17, 1902, 32 STAT. 388.  BUT WE DO NOT STOP TO DETERMINE WHAT RIGHTS TO
UNAPPROPRIATED WATER OF THE RIVER THE UNITED STATES MAY HAVE.  FOR THE
WATER RIGHTS ON WHICH THE NORTH PLATTE PROJECT AND THE KENDRICK PROJECT
REST HAVE BEEN OBTAINED IN COMPLIANCE WITH STATE LAW.  WHETHER THEY
MIGHT HAVE BEEN OBTAINED BY FEDERAL RESERVATION IS NOT IMPORTANT.  NOR,
AS WE SHALL SEE, IS IT IMPORTANT TO THE DECREE TO BE ENTERED IN THIS
CASE THAT THERE MAY BE UNAPPROPRIATED WATER TO WHICH THE UNITED STATES
MAY IN THE FUTURE ASSERT RIGHTS THROUGH THE MACHINERY OF STATE LAW OR
OTHERWISE. 

THE DESERT LAND ACT "EFFECTED A SEVERANCE OF ALL WATERS UPON THE
PUBLIC DOMAIN, NOT THERETOFORE APPROPRIATED, FROM THE LAND ITSELF." 
CALIFORNIA OREGON POWER CO. V. BEAVER PORTLAND CEMENT CO., 295 U.S.
142, 158.  IT EXTENDED THE RIGHT OF APPROPRIATION TO ANY DECLARANT WHO
RECLAIMED DESERT LAND AND PROVIDED:  "ALL SURPLUS WATER OVER AND ABOVE
SUCH ACTUAL APPROPRIATION AND USE, TOGETHER WITH THE WATER OF ALL,
LAKES, RIVERS AND OTHER SOURCES OF WATER SUPPLY UPON THE PUBLIC LANDS
AND NOT NAVIGABLE, SHALL REMAIN AND BE HELD FREE FOR THE APPROPRIATION
AND USE OF THE PUBLIC FOR IRRIGATION, MINING AND MANUFACTURING PURPOSES
SUBJECT TO EXISTING RIGHTS."  SEE ICKES V. FOX, 300 U.S. 82, 95; BRUSH
V. COMMISSIONER, 300 U.S. 352, 367. 

SEC. 8 OF THE RECLAMATION ACT PROVIDED:  "THAT NOTHING IN THIS ACT
SHALL BE CONSTRUED AS AFFECTING OR INTENDED TO AFFECT OR TO IN ANY WAY
INTERFERE WITH THE LAWS OF ANY STATE OR TERRITORY RELATING TO THE
CONTROL, APPROPRIATION, USE, OR DISTRIBUTION OF WATER USED IN
IRRIGATION, OR ANY VESTED RIGHT ACQUIRED THEREUNDER, AND THE SECRETARY
OF THE INTERIOR, IN CARRYING OUT THE PROVISIONS OF THIS ACT, SHALL
PROCEED IN CONFORMITY WITH SUCH LAWS, AND NOTHING HEREIN SHALL IN ANY
WAY AFFECT ANY RIGHT OF ANY STATE OR OF THE FEDERAL GOVERNMENT OR OF
ANY LANDOWNER, APPROPRIATOR, OR USER OF WATER IN, TO, OR FROM ANY
INTERSTATE STREAM OR THE WATERS THEREOF: PROVIDED, THAT THE RIGHT TO
THE USE OF WATER ACQUIRED UNDER THE PROVISIONS OF THIS ACT SHALL BE
APPURTENANT TO THE LAND IRRIGATED, AND BENEFICIAL USE SHALL BE THE
BASIS, THE MEASURE, AND THE LIMIT OF THE RIGHT." 

THE SECRETARY OF THE INTERIOR PURSUANT TO SEC. 3 OF THE RECLAMATION
ACT WITHDREW FROM PUBLIC ENTRY CERTAIN PUBLIC LANDS IN NEBRASKA AND
WYOMING WHICH WERE REQUIRED FOR THE NORTH PLATTE PROJECT AND THE
KENDRICK PROJECT.  INITIATION OF BOTH PROJECTS WAS ACCOMPANIED BY
FILINGS MADE PURSUANT TO SEC. 8 IN THE NAME OF THE SECRETARY OF THE
INTERIOR FOR AND ON BEHALF OF THE UNITED STATES.  THOSE FILINGS WERE
ACCEPTED BY THE STATE OFFICIALS AS ADEQUATE UNDER STATE LAW.  THEY
ESTABLISHED THE PRIORITY DATES FOR THE PROJECTS.  THERE WERE ALSO
APPLICATIONS TO THE STATES FOR PERMITS TO CONSTRUCT CANALS AND
DITCHES.  THEY DESCRIBED THE LAND TO BE SERVED.  THE ORDERS GRANTING
THE APPLICATIONS FIXED THE TIME FOR COMPLETION OF THE CANAL, FOR
APPLICATION OF THE WATER TO THE LAND, AND FOR PROOF OF APPROPRIATION. 
INDIVIDUAL WATER USERS CONTRACTED WITH THE UNITED STATES FOR THE USE OF
PROJECT WATER.  THESE CONTRACTS WERE LATER ASSUMED BY THE IRRIGATION
DISTRICTS.  IRRIGATION DISTRICTS SUBMITTED PROOF OF BENEFICIAL USE TO
THE STATE AUTHORITIES ON BEHALF OF THE PROJECT WATER USERS.  THE STATE
AUTHORITIES ACCEPTED THAT PROOF AND ISSUED DECREES AND CERTIFICATES IN
FAVOR OF THE INDIVIDUAL WATER USERS.  THE CERTIFICATES NAMED AS
APPROPRIATORS THE INDIVIDUAL LANDOWNERS.  THEY DESIGNATED THE NUMBER OF
ACRES INCLUDED, THE USE FOR WHICH THE APPROPRIATION WAS MADE, THE
AMOUNT OF THE APPROPRIATION, AND THE PRIORITY DATE.  THE CONTRACTS
BETWEEN THE UNITED STATES AND THE IRRIGATION DISTRICTS PROVIDED THAT
AFTER THE STORED WATER WAS RELEASED FROM THE RESERVOIR IT WAS UNDER THE
CONTROL OF THE APPROPRIATE STATE OFFICIALS.    ALL OF THESE STEPS MAKE
PLAIN THAT THOSE PROJECTS WERE DESIGNED, CONSTRUCTED AND COMPLETED
ACCORDING TO THE PATTERN OF STATE LAW AS PROVIDED IN THE RECLAMATION
ACT.  WE CAN SAY HERE WHAT WAS SAID IN ICKES V. FOX, SUPRA, PP. 94-95:
"ALTHOUGH THE GOVERNMENT DIVERTED, STORED AND DISTRIBUTED THE WATER,
THE CONTENTION OF PETITIONER THAT THEREBY OWNERSHIP OF THE WATER OR
WATER-RIGHTS BECAME VESTED IN THE UNITED STATES IS NOT WELL FOUNDED. 
APPROPRIATION WAS MADE NOT FOR THE USE OF THE GOVERNMENT, BUT, UNDER
THE RECLAMATION ACT, FOR THE USE OF THE LAND OWNERS; AND BY THE TERMS
OF THE LAW AND OF THE CONTRACT ALREADY REFERRED TO, THE WATER-RIGHTS
BECAME THE PROPERTY OF THE LAND OWNERS, WHOLLY DISTINCT FROM THE
PROPERTY RIGHT OF THE GOVERNMENT IN THE IRRIGATION WORKS.  COMPARE
MURPHY V. KERR, 296 FED. 536, 544, 545.  THE GOVERNMENT WAS AND
REMAINED SIMPLY A CARRIER AND DISTRIBUTOR OF THE WATER (IBID.), WITH
THE RIGHT TO RECEIVE THE SUMS STIPULATED IN THE CONTRACTS AS
REIMBURSEMENT FOR THE COST OF CONSTRUCTION AND ANNUAL CHARGES FOR
OPERATION AND MAINTENANCE OF THE WORKS." 

THE PROPERTY RIGHT IN THE WATER RIGHT IS SEPARATE AND DISTINCT FROM
THE PROPERTY RIGHT IN THE RESERVOIRS, DITCHES OR CANALS.  THE WATER
RIGHT IS APPURTENANT TO THE LAND, THE OWNER OF WHICH IS THE
APPROPRIATOR.  THE WATER RIGHT IS ACQUIRED BY PERFECTING AN
APPROPRIATION, I.E., BY AN ACTUAL DIVERSION FOLLOWED BY AN APPLICATION
WITHIN A REASONABLE TIME OF THE WATER TO A BENEFICIAL USE.  SEE MURPHY
V. KERR, 296 F. 536, 542, 544, 545; COMMONWEALTH POWER CO. V. STATE
BOARD, 94 NEB. 613, 143 N.W. 937; KERSENBROCK V. BOYES, 95 NEB. 407,
145 N.W. 837.  INDEED SEC. 8 OF THE RECLAMATION ACT PROVIDES AS WE HAVE
SEEN THAT "THE RIGHT TO THE USE OF WATER ACQUIRED UNDER THE PROVISIONS
OF THIS ACT SHALL BE APPURTENANT TO THE LAND IRRIGATED, AND BENEFICIAL
USE SHALL BE THE BASIS, THE MEASURE, AND THE LIMIT OF THE RIGHT." 

WE HAVE THEN A DIRECTION BY CONGRESS TO THE SECRETARY OF THE INTERIOR
TO PROCEED IN CONFORMITY WITH STATE LAWS IN APPROPRIATING WATER FOR
IRRIGATION PURPOSES.  WE HAVE A COMPLIANCE WITH THAT DIRECTION. 
PURSUANT TO THAT PROCEDURE INDIVIDUAL LANDOWNERS HAVE BECOME THE
APPROPRIATORS OF THE WATER RIGHTS, THE UNITED STATES BEING THE STORER
AND THE CARRIER.  FN11  WE INTIMATE NO OPINION WHETHER A DIFFERENT
PROCEDURE MIGHT HAVE BEEN FOLLOWED SO AS TO APPROPRIATE AND RESERVE TO
THE UNITED STATES ALL OF THESE WATER RIGHTS.  NO SUCH ATTEMPT WAS
MADE.  THOUGH WE ASSUME ARGUENDO THAT THE UNITED STATES DID OWN ALL OF
THE UNAPPROPRIATED WATER, THE APPROPRIATIONS UNDER STATE LAW WERE MADE
TO THE INDIVIDUAL LANDOWNERS PURSUANT TO THE PROCEDURE WHICH CONGRESS
PROVIDED IN THE RECLAMATION ACT.  THE RIGHTS SO ACQUIRED ARE AS
DEFINITE AND COMPLETE AS IF THEY WERE OBTAINED BY DIRECT CESSION FROM
THE FEDERAL GOVERNMENT.  THUS EVEN IF WE ASSUME THAT THE UNITED STATES
OWNED THE UNAPPROPRIATED RIGHTS, THEY WERE ACQUIRED BY THE LANDOWNERS
IN THE PRECISE MANNER CONTEMPLATED BY CONGRESS. 

IT IS ARGUED THAT IF THE RIGHT OF THE UNITED STATES TO THESE WATER
RIGHTS IS NOT RECOGNIZED, ITS MANAGEMENT OF THE FEDERAL PROJECTS WILL
BE JEOPARDIZED.  IT IS POINTED OUT, FOR EXAMPLE, THAT WYOMING AND
NEBRASKA HAVE LAWS WHICH REGULATE THE CHARGES WHICH THE OWNERS OF
CANALS OR RESERVOIRS MAY MAKE FOR THE USE OF WATER.  BUT OUR DECISION
DOES NOT INVOLVE THOSE MATTERS.  WE DO NOT SUGGEST THAT WHERE CONGRESS
HAS PROVIDED A SYSTEM OF REGULATION FOR FEDERAL PROJECTS IT MUST GIVE
WAY BEFORE AN INCONSISTENT STATE SYSTEM.  WE ARE DEALING HERE ONLY WITH
AN ALLOCATION, THROUGH THE STATES, OF WATER RIGHTS AMONG
APPROPRIATORS.  THE RIGHTS OF THE UNITED STATES IN RESPECT TO THE
STORAGE OF WATER ARE RECOGNIZED.  SO ARE THE WATER RIGHTS OF THE
LANDOWNERS.  TO ALLOCATE THOSE WATER RIGHTS TO THE UNITED STATES WOULD
BE TO DISREGARD THE RIGHTS OF THE LANDOWNERS.  TO ALLOCATE THEM TO THE
STATES, WHO REPRESENT THEIR CITIZENS PARENS PATRIAE IN THIS PROCEEDING,
FN12  IN NO WISE INTERFERES WITH THE OWNERSHIP AND OPERATION BY THE
UNITED STATES OF ITS STORAGE AND POWER PLANTS, WORKS, AND FACILITIES. 
THUS THE QUESTION OF THE OWNERSHIP BY THE UNITED STATES OF
UNAPPROPRIATED WATER IS LARGELY ACADEMIC SO FAR AS THE NARROW ISSUES OF
THIS CASE ARE CONCERNED. 

                                  V 

THERE IS SOME SUGGESTION THAT IF WE UNDERTAKE AN APPORTIONMENT OF THE
WATERS OF THIS INTERSTATE RIVER, WE EMBARK UPON AN ENTERPRISE INVOLVING
ADMINISTRATIVE FUNCTIONS BEYOND OUR PROVINCE.  WE NOTED IN COLORADO V.
KANSAS, SUPRA, P. 392, THAT THESE CONTROVERSIES BETWEEN STATES OVER THE
WATERS OF INTERSTATE STREAMS "INVOLVE THE INTERESTS OF QUASI
SOVEREIGNS, PRESENT COMPLICATED AND DELICATE QUESTIONS, AND, DUE TO THE
POSSIBILITY OF FUTURE CHANGE OF CONDITIONS, NECESSITATE EXPERT
ADMINISTRATION RATHER THAN JUDICIAL IMPOSITION OF A HARD AND FAST
RULE.  SUCH CONTROVERSIES MAY APPROPRIATELY BE COMPOSED BY NEGOTIATION
AND AGREEMENT, PURSUANT TO THE COMPACT CLAUSE OF THE FEDERAL
CONSTITUTION.  WE SAY OF THIS CASE, AS THE COURT HAS SAID OF INTERSTATE
DIFFERENCES OF LIKE NATURE, THAT SUCH MUTUAL ACCOMMODATION AND
AGREEMENT SHOULD, IF POSSIBLE, BE THE MEDIUM OF SETTLEMENT, INSTEAD OF
INVOCATION OF OUR ADJUDICATORY POWER."  BUT THE EFFORTS AT SETTLEMENT
IN THIS CASE HAVE FAILED.  A GENUINE CONTROVERSY EXISTS.  THE GRAVITY
AND IMPORTANCE OF THE CASE ARE APPARENT.  THE DIFFICULTIES OF DRAFTING
AND ENFORCING A DECREE ARE NO JUSTIFICATION FOR US TO REFUSE TO PERFORM
THE IMPORTANT FUNCTION ENTRUSTED TO US BY THE CONSTITUTION.  THOSE
CONSIDERATIONS DID NOT PREVAIL IN WYOMING V. COLORADO, SUPRA, WHERE AN
APPORTIONMENT OF THE WATERS OF AN INTERSTATE STREAM WAS MADE.  NOR DID
THEY PREVAIL IN THE DRAINAGE CANAL CASES.  WISCONSIN V. ILLINOIS, 278
U.S. 367, 281 U.S. 179, 309 U.S. 569, 311 U.S. 107, 313 U.S. 547.  AND
SEE SANITARY DISTRICT V. UNITED STATES, 266 U.S. 405.  WE DO NOT
BELIEVE THEY SHOULD PREVAIL HERE. 

WE RECOGNIZE THE DIFFICULTIES OF THE PROBLEM.  THE MATTER IS A
DELICATE ONE AND EXTREMELY COMPLEX.  TO BEGIN WITH WE ARE CONFRONTED
WITH THE PROBLEM OF EQUITABLE APPORTIONMENT.  THE SPECIAL MASTER
RECOMMENDED A DECREE BASED ON THAT PRINCIPLE.  THAT WAS INDEED THE
PRINCIPLE ADOPTED BY THE COURT IN WYOMING V. COLORADO, SUPRA, WHERE AN
APPORTIONMENT OF THE WATERS OF AN INTERSTATE STREAM WAS MADE BETWEEN
TWO STATES, EACH OF WHICH HAD THE RULE OF APPROPRIATION.  IN SPEAKING
OF THAT RULE IN APPLICATION TO A CONTROVERSY BETWEEN STATES THE COURT,
THROUGH MR. JUSTICE VAN DEVANTER, SAID:  "THE CARDINAL RULE OF THE
DOCTRINE IS THAT PRIORITY OF APPROPRIATION GIVES SUPERIORITY OF RIGHT. 
EACH OF THESE STATES APPLIES AND ENFORCES THIS RULE IN HER OWN
TERRITORY, AND IT IS THE ONE TO WHICH INTENDING APPROPRIATORS NATURALLY
WOULD TURN FOR GUIDANCE.  THE PRINCIPLE ON WHICH IT PROCEEDS IS NOT
LESS APPLICABLE TO INTERSTATE STREAMS AND CONTROVERSIES THAN TO
OTHERS.  BOTH STATES PRONOUNCE THE RULE JUST AND REASONABLE AS APPLIED
TO THE NATURAL CONDITIONS IN THAT REGION; AND TO PREVENT ANY DEPARTURE
FROM IT THE PEOPLE OF BOTH INCORPORATED IT INTO THEIR CONSTITUTIONS. 
IT ORIGINATED IN THE CUSTOMS AND USAGES OF THE PEOPLE BEFORE EITHER
STATE CAME INTO EXISTENCE, AND THE COURTS OF BOTH HOLD THAT THEIR
CONSTITUTIONAL PROVISIONS ARE TO BE TAKEN AS RECOGNIZING THE PRIOR
USAGE RATHER THAN AS CREATING A NEW RULE.  THESE CONSIDERATIONS
PERSUADE US THAT ITS APPLICATION TO SUCH A CONTROVERSY AS IS HERE
PRESENTED CANNOT BE OTHER THAN EMINENTLY JUST AND EQUITABLE TO ALL
CONCERNED."  259 U.S. P. 470.  AND SEE WYOMING V. COLORADO, 286 U.S.
494; WASHINGTON V. OREGON, 297 U.S. 517, 526.  SINCE COLORADO, WYOMING,
AND NEBRASKA ARE APPROPRIATION STATES, THAT PRINCIPLE WOULD SEEM TO BE
EQUALLY APPLICABLE HERE. 

THAT DOES NOT MEAN THAT THERE MUST BE A LITERAL APPLICATION OF THE
PRIORITY RULE.  WE STATED IN COLORADO V. KANSAS, SUPRA, THAT IN
DETERMINING WHETHER ONE STATE IS "USING, OR THREATENING TO USE, MORE
THAN ITS EQUITABLE SHARE OF THE BENEFITS OF A STREAM, ALL THE FACTORS
WHICH CREATE EQUITIES IN FAVOR OF ONE STATE OR THE OTHER MUST BE
WEIGHED AS OF THE DATE WHEN THE CONTROVERSY IS MOOTED."  320 U.S. P.
394.  THAT CASE DID NOT INVOLVE A CONTROVERSY BETWEEN TWO APPROPRIATION
STATES.  BUT IF AN ALLOCATION BETWEEN APPROPRIATION STATES IS TO BE
JUST AND EQUITABLE, STRICT ADHERENCE TO THE PRIORITY RULE MAY NOT BE
POSSIBLE.  FOR EXAMPLE, THE ECONOMY OF A REGION MAY HAVE BEEN
ESTABLISHED ON THE BASIS OF JUNIOR APPROPRIATIONS.  SO FAR AS POSSIBLE
THOSE ESTABLISHED USES SHOULD BE PROTECTED THOUGH STRICT APPLICATION OF
THE PRIORITY RULE MIGHT JEOPARDIZE THEM.  APPORTIONMENT CALLS FOR THE
EXERCISE OF AN INFORMED JUDGMENT ON A CONSIDERATION OF MANY FACTORS. 
PRIORITY OF APPROPRIATION IS THE GUIDING PRINCIPLE.  BUT PHYSICAL AND
CLIMATIC CONDITIONS, THE CONSUMPTIVE USE OF WATER IN THE SEVERAL
EXTENT OF ESTABLISHED USES, THE AVAILABILITY OF STORAGE WATER, THE
PRACTICAL EFFECT OF WASTEFUL USES ON DOWNSTREAM AREAS, THE DAMAGE TO
UPSTREAM AREAS AS COMPARED TO THE BENEFITS TO DOWNSTREAM AREAS IF A
LIMITATION IS IMPOSED ON THE FORMER - THESE ARE ALL RELEVANT FACTORS. 
THEY ARE MERELY AN ILLUSTRATIVE, NOT AN EXHAUSTIVE CATALOGUE.  THEY
INDICATE THE NATURE OF THE PROBLEM OF APPORTIONMENT AND THE DELICATE
ADJUSTMENT OF INTERESTS WHICH MUST BE MADE. 

PRACTICAL CONSIDERATIONS OF THIS ORDER UNDERLIE NEBRASKA'S CONCESSION
THAT THE PRIORITY RULE SHOULD NOT BE STRICTLY APPLIED TO APPROPRIATIONS
IN COLORADO, THOUGH SOME ARE JUNIOR TO THE PRIORITIES OF APPROPRIATORS
IN WYOMING AND NEBRASKA.  AS THE SPECIAL MASTER POINTS OUT, THE FLOWAGE
TIME OF WATER FROM NORTH PARK TO BRIDGEPORT, NEBRASKA IS BETWEEN TWO
AND THREE WEEKS.  IF A CANAL IN NORTH PARK WERE CLOSED TO RELIEVE THE
SHORTAGE OF A SENIOR APPROPRIATOR IN NEBRASKA, IT WOULD BE HIGHLY
SPECULATIVE WHETHER THE WATER WOULD REACH THE NEBRASKA APPROPRIATOR IN
TIME OR WHETHER THE CLOSING OF THE COLORADO CANAL WOULD WORK MORE
HARDSHIP THERE THAN IT WOULD BESTOW BENEFITS IN NEBRASKA.  MOREOVER,
THERE IS LOSS OF WATER IN TRANSIT FROM THE UPPER TO THE DOWNSTREAM
RECEIVES LESS THAN THE UPPER APPROPRIATOR LOSES.  AND THERE IS EVIDENCE
THAT A RIVER-WIDE PRIORITY SYSTEM WOULD DISTURB AND DISRUPT LONG
ESTABLISHED USES. 

NEBRASKA, HOWEVER, URGES THAT PRIORITY OF APPROPRIATION INTERSTATE BE
ADOPTED FROM THE ALCOVA RESERVOIR EAST AND MORE PARTICULARLY FROM THE
WHALEN DIVERSION DAM EAST.  SHE POINTS OUT THAT THERE IS A LARGE
ACREAGE OF NEBRASKA LAND WHICH IS IRRIGATED BY CANALS DIVERTING AT
WHALEN.  THERE ARE FOUR CANALS DIVERTING IN WYOMING AND IRRIGATING LAND
ENTIRELY OR IN PART IN NEBRASKA - MITCHELL, INTERSTATE, FT. LARAMIE AND
FRENCH.  FOR EXAMPLE, THE DIVERSION POINT FOR MITCHELL IS IN WYOMING
THOUGH ALL THE LAND IT SERVES IS IN NEBRASKA.  NEBRASKA HAS MAINTAINED
THAT DIVERSIONS OF THAT CANAL SHOULD BE REGULATED TO OBSERVE THE
PRIORITIES OF SENIOR NEBRASKA CANALS INCLUDING TRI-STATE.  WYOMING WAS
WILLING TO REGULATE HER UPSTREAM JUNIOR APPROPRIATORS FOR THE BENEFIT
OF MITCHELL PROVIDED THE WATER GO TO MITCHELL AND NOT BE USED FOR TRI
STATE WHICH IS SENIOR TO BOTH MITCHELL AND CERTAIN WYOMING
APPROPRIATORS N13.  NEBRASKA THEREFORE URGES AN INTERSTATE ALLOCATION
WHICH WOULD REQUIRE JUNIOR APPROPRIATORS IN WYOMING TO RESPECT NOT ONLY
MITCHELL'S PRIORITIES BUT ALSO THOSE OF TRI-STATE AND OTHER NEBRASKA
CANALS IN THIS SECTION OF THE RIVER. 

THE UNITED STATES TAKES SUBSTANTIALLY THE SAME POSITION ON THIS
MATTER AS NEBRASKA EXCEPT THAT IT ARGUES THAT A PRIORITY ALLOCATION
INTERSTATE BE CONFINED TO THAT AREA BETWEEN WHALEN AND TRI-STATE DAM. 

WYOMING CONTENDS FOR A SYSTEM OF MASS ALLOCATION BETWEEN THE STATES,
SAYING THAT NO ATTEMPT CAN OR SHOULD BE MADE IN THIS PROCEEDING TO
DETERMINE THE PRIORITIES INTERSTATE OF THE VARIOUS APPROPRIATORS IN
EACH STATE.  THE PROPOSAL OF WYOMING ENVISAGES DISTRIBUTION OF NATURAL
FLOW AND STORAGE WATER INDISCRIMINATELY AS A COMMON FUND TO ALL USERS. 
IT IS BASED ON THE THEORY THAT THERE IS A SUFFICIENCY OF WATER FOR
EVERYONE. 

THE DECREE RECOMMENDED BY THE SPECIAL MASTER DEPARTS FROM THE THEORY
OF ALLOCATION ADVANCED BY THE PARTIES.  IN RECOMMENDING HIS
APPORTIONMENT THE SPECIAL MASTER DID NOT REST ON THE LONG-TIME AVERAGE
FLOW OF THE RIVER.  WE HAVE DISCUSSED THE DROUGHT WHICH HAS PERSISTED
IN THIS RIVER BASIN SINCE 1930.  NO ONE KNOWS WHETHER IT HAS RUN ITS
COURSE OR WHETHER IT REPRESENTS A NEW NORM.  THERE IS NO RELIABLE BASIS
FOR PREDICTION.  BUT A CONTROVERSY EXISTS; AND THE DECREE WHICH IS
ENTERED MUST DEAL WITH CONDITIONS AS THEY OBTAIN TODAY.  IF THEY
SUBSTANTIALLY CHANGE, THE DECREE CAN BE ADJUSTED TO MEET THE NEW
CONDITIONS.  BUT THE DECREE WHICH IS FASHIONED MUST BE BASED, AS THE
SPECIAL MASTER RECOGNIZED, ON THE DEPENDABLE FLOW.  WYOMING V.
COLORADO, SUPRA.  IN THAT CASE THE COURT POINTED OUT THAT THE AVERAGE
OF ALL YEARS WAS FAR FROM BEING A PROPER MEASURE OF THE AVAILABLE
SUPPLY.  "AN INTENDING IRRIGATOR ACQUIRING A WATER RIGHT BASED ON SUCH
A MEASURE WOULD BE ALMOST CERTAINLY CONFRONTED WITH DROUGHT WHEN HIS
NEED FOR WATER WAS GREATEST.  CROPS CANNOT BE GROWN ON EXPECTATIONS OF
AVERAGE FLOWS WHICH DO NOT COME, NOR ON RECOLLECTIONS OF UNUSUAL FLOWS
WHICH HAVE PASSED DOWN THE STREAM IN PRIOR YEARS."  259 U.S. P. 476. 
ON THIS RECORD WE CANNOT SAY THAT THE DEPENDABLE FLOW IS GREATER THAN
THE AVERAGE CONDITION WHICH HAS PREVAILED SINCE 1930.  FOR REASONS
WHICH WE DISCUSS AT A LATER POINT IN THIS OPINION, WE DEAL ONLY WITH
NATURAL FLOW, NOT WITH STORAGE WATER AS WYOMING URGES.  ON THE BASIS OF
THE CONDITIONS WHICH HAVE OBTAINED SINCE 1930, IT IS PLAIN THAT THE
NATURAL FLOW OF THE RIVER DURING THE IRRIGATION SEASON HAS BEEN OVER
APPROPRIATED.    COLORADO.  AS WE HAVE NOTED, THERE ARE PRESENTLY UNDER
IRRIGATION IN THIS SECTION OF THE RIVER 131,800 ACRES WHICH CONSUME
(INCLUDING RESERVOIR EVAPORATION) 98,540 ACRE FEET ANNUALLY. 
EXPORTATIONS FROM THE BASIN AMOUNT ON THE AVERAGE TO 6,000 ACRE FEET,
MAKING THE TOTAL ANNUAL DEPLETION 104,540 ACRE FEET.  THERE ARE, AS WE
HAVE SEEN, ADDITIONAL DEMANDS MADE BY COLORADO FOR FUTURE PROJECTS. 
THE SPECIAL MASTER RECOMMENDED THAT COLORADO BE ENJOINED (A) FROM THE
DIVERSION OF WATER FOR THE IRRIGATION IN NORTH PARK OF MORE THAN
135,000 ACRES OF LAND, (B) FROM THE ACCUMULATION IN STORAGE FACILITIES
IN NORTH PARK OF MORE THAN 17,000 ACRE FEET BETWEEN OCTOBER 1 OF ANY
YEAR AND SEPTEMBER 30 OF THE FOLLOWING YEAR, AND (C) FROM THE
TRANSBASIN DIVERSION OUT OF NORTH PARK OF MORE THAN 6,000 ACRE FEET
BETWEEN OCTOBER 1 OF ANY YEAR AND SEPTEMBER 30 OF THE FOLLOWING YEAR. 
COLORADO EXCEPTS TO THESE PROPOSALS.  BUT WITH MINOR EXCEPTIONS WHICH
WE WILL NOTE, WE DO NOT BELIEVE THOSE EXCEPTIONS ARE WELL TAKEN. 

WE ARE SATISFIED THAT A REDUCTION IN PRESENT COLORADO USES IS NOT
WARRANTED.  THE FACT THAT THE SAME AMOUNT OF WATER MIGHT PRODUCE MORE
IN LOWER SECTIONS OF THE RIVER IS IMMATERIAL.  WYOMING V. COLORADO,
SUPRA, P. 468.  THE ESTABLISHED ECONOMY IN COLORADO'S SECTION OF THE
RIVER BASIN BASED ON EXISTING USE OF THE WATER SHOULD BE PROTECTED. 
FN14  CF. COLORADO V. KANSAS, SUPRA, P. 394.  APPROPRIATORS IN COLORADO
JUNIOR TO PATHFINDER HAVE MADE OUT-OF-PRIORITY DIVERSIONS OF
SUBSTANTIAL AMOUNTS.  STRICT APPLICATION OF THE PRIORITY RULE MIGHT
WELL RESULT IN PLACING A LIMITATION ON COLORADO'S PRESENT USE FOR THE
BENEFIT OF PATHFINDER.  BUT AS WE HAVE SAID, PRIORITY OF APPROPRIATION,
WHILE THE GUIDING PRINCIPLE FOR AN APPORTIONMENT, IS NOT A HARD AND
FAST RULE.  COLORADO'S COUNTERVAILING EQUITIES INDICATE IT SHOULD NOT
BE STRICTLY ADHERED TO IN THIS SITUATION.  COLORADO ASSERTS, HOWEVER,
THAT THE LIMITATION OF TRANSBASIN DIVERSIONS TO 6,000 ACRE FEET A YEAR
SHOULD NOT BE IMPOSED.  HER POINT IS THAT 6,000 ACRE FEET REPRESENT
MERELY THE AVERAGE ANNUAL TRANSBASIN DIVERSIONS, THAT ANNUAL DIVERSIONS
HAVE EXCEEDED THAT AMOUNT, AND THAT A LIMITATION OF 6,000 ACRE FEET
ANNUALLY WILL INTERFERE WITH EXISTING COLORADO USERS.  WE THINK THE
POINT IS WELL TAKEN.  THE DECREE WILL ENJOIN COLORADO EXPORTATIONS IN
EXCESS OF AN AVERAGE OF 6,000 ACRE FEET COMPUTED OVER A PERIOD OF TEN
YEARS.  FN15 

BUT COLORADO'S OTHER EXCEPTIONS TO THE SUGGESTED LIMITATIONS TO BE
PLACED ON HER USE OF THE WATER OF THE NORTH PLATTE ARE NOT SUSTAINED. 
THE PRINCIPAL ARGUMENT IS THAT ON THE BASIS OF THE LONG-TIME AVERAGES
THERE IS ENOUGH WATER TO GO AROUND, THAT NO LIMITATION ON USE IS
WARRANTED, AND THAT THE PROPOSED LIMITATION IS A DEPRIVATION SUFFERED
BY COLORADO FOR THE BENEFIT OF DOWNSTREAM USERS.  BUT THAT ARGUMENT
FAILS IF WE ASSUME, AS WE MUST ON THE EVIDENCE BEFORE US, THAT THE
DEPENDABLE SUPPLY DOES NOT EXCEED THE AMOUNT OF WATER WHICH HAS BEEN
AVAILABLE SINCE 1930.  NOR CAN WE SEE HOW EXISTING PROJECTS CAN BE
PROTECTED ON THE BASIS OF THE 1931-1940 SUPPLY IF ADDITIONAL PROJECTS
IN COLORADO ARE PERMITTED.  IF AT ANY TIME ADDITIONAL PROJECTS ARE
THREATENED IN DOWNSTREAM AREAS, COLORADO MAY MAKE COMPLAINT.  IF
CONDITIONS OF SUPPLY SUBSTANTIALLY CHANGE, ANY PARTY CAN APPLY FOR
MODIFICATION OF THE DECREE.  THE DECREE WILL NOT NECESSARILY BE FOR ALL
TIME.  PROVISION WILL BE MADE FOR ITS ADJUSTMENT TO MEET SUBSTANTIALLY
CHANGED CONDITIONS.  NOR WILL THE DECREE INTERFERE WITH RELATIONSHIPS
AMONG COLORADO'S WATER USERS.  THE RELATIVE RIGHTS OF THE APPROPRIATORS
ARE SUBJECT TO COLORADO'S CONTROL. 

COLORADO FINALLY SAYS THAT THE PROPOSED RESTRICTION ON HER USES OF
THE WATER VIOLATE THE ACT OF AUGUST 9, 1937, 50 STAT. 564, 595, WHICH
APPROPRIATED FUNDS FOR THE KENDRICK PROJECT.  THAT ACT PROVIDED THAT
"IN RECOGNITION OF THE RESPECTIVE RIGHTS OF BOTH THE STATES OF COLORADO
AND WYOMING TO THE AMICABLE USE OF THE WATERS OF THE NORTH PLATTE
RIVER, NEITHER THE CONSTRUCTION, MAINTENANCE, NOR OPERATION OF SAID
(KENDRICK) PROJECT SHALL EVER INTERFERE WITH THE PRESENT VESTED RIGHTS
OR THE FULLEST USE HEREAFTER FOR ALL BENEFICIAL PURPOSES OF THE WATERS
OF SAID STREAM OR ANY OF ITS TRIBUTARIES WITHIN THE DRAINAGE BASIN
THEREOF IN JACKSON COUNTY, IN THE STATE OF COLORADO, AND THE SECRETARY
OF THE INTERIOR IS HEREBY AUTHORIZED AND DIRECTED TO RESERVE THE POWER
BY CONTRACT TO ENFORCE SUCH PROVISIONS AT ALL TIMES."  BUT THAT ACT
DOES NOT LIMIT OR RESTRICT NEBRASKA'S OR WYOMING'S CLAIM FOR
APPORTIONMENT AGAINST COLORADO.  MOREOVER, THE KENDRICK PROJECT UNDER
PRESENT CONDITIONS (WHICH ARE THE BASIS OF THE DECREE) COULD STORE NO
WATER WITHOUT VIOLATING OTHER PRIORITIES.  IF THE LONGTIME AVERAGE
CONDITIONS RETURN, IT CAN DO SO.  ONLY AT THAT TIME COULD THERE BE A
POSSIBLE CONFLICT WITH THE POLICY OF CONGRESS CONTAINED IN THE ACT OF
AUGUST 9, 1937.  IF THAT CONDITION ARISES AND A CONFLICT WITH
COLORADO'S INTERESTS APPEAR IMMINENT, IT WILL BE TIME TO CONSIDER THE
PROBLEM. 

COLORADO STATE LINE TO PATHFINDER AND GUERNSEY.  THE SPECIAL MASTER
RECOMMENDS THAT WYOMING BE ENJOINED (A) FROM DIVERTING WATER FROM THE
MAIN RIVER ABOVE GUERNSEY AND FROM ITS TRIBUTARIES ABOVE PATHFINDER FOR
THE IRRIGATION OF MORE THAN 168,000 ACRES, AND (B) FROM THE
ACCUMULATION OF STORAGE WATER IN RESERVOIRS ABOVE PATHFINDER IN EXCESS
OF 18,000 ACRE FEET BETWEEN OCTOBER 1 OF ANY YEAR AND SEPTEMBER 30 OF
THE FOLLOWING YEAR.  WE DEEM THIS RESTRICTION APPROPRIATE PROVIDED THE
LIMITATION OF STORAGE ABOVE PATHFINDER DOES NOT INCLUDE SEMINOE
RESERVOIR WHICH LIES ABOVE PATHFINDER AND WHICH IS TO BE THE MAIN
SOURCE OF SUPPLY FOR THE KENDRICK PROJECT.  AS WE HAVE NOTED, MOST OF
THE LAND UNDER IRRIGATION IN THE SECTION ABOVE PATHFINDER IS IRRIGATED
FROM TRIBUTARIES.  THE RIGHTS ARE SMALL BUT VERY NUMEROUS.  THE TOTAL
ACREAGE UNDER IRRIGATION IS 153,000 ACRES, ALLOWING FOR A MARGIN OF
ERROR.  BELOW PATHFINDER AND ABOVE GUERNSEY THE SPECIAL MASTER DEALT
ONLY WITH DIVERSIONS FROM THE MAIN RIVER.  HE CONCLUDED THAT THE RUN
OFF OF THE TRIBUTARIES BECOMES SO FAR EXHAUSTED BEFORE ANY SHORTAGE OF
WATER OCCURS IN THE MAIN RIVER THAT ANY REGULATION OF THE TRIBUTARY
DIVERSIONS WOULD BE OF NO MATERIAL BENEFIT.  THE TRIBUTARY INFLOW IS
GREATER THAN THE DEPLETION OF THE RIVER.  THERE IS SOME OUT-OF-PRIORITY
DIVERSION AS WE HAVE NOTED.  BUT POSSIBILITIES FOR FUTURE DEVELOPMENTS
ARE LARGELY NONEXISTENT.  THE SPECIAL MASTER CONCLUDED THAT IF WYOMING
WERE LIMITED TO THE IRRIGATION OF 15,000 ACRES (WHICH IS THE EXTENT OF
PRESENT IRRIGATION WITH A MARGIN OF ERROR) NATURAL CONDITIONS WOULD
MILITATE AGAINST THIS SECTION GETTING MORE THAN ITS EQUITABLE SHARE OF
THE WATER. 

WE THINK THAT IS A PRACTICAL AND FAIR ADJUSTMENT.  SO FAR AS THE
TRIBUTARIES ABOVE PATHFINDER ARE CONCERNED, PRACTICAL DIFFICULTIES OF
APPLYING RESTRICTIONS WHICH WOULD REDUCE THE AMOUNT OF WATER USED BY
THE HUNDREDS OF SMALL IRRIGATORS WOULD SEEM TO OUTWEIGH ANY SLIGHT
BENEFIT WHICH SENIOR APPROPRIATORS MIGHT OBTAIN.  THIS DOES NOT SEEM TO
BE DENIED.  AND THE CONDITIONS WHICH OBTAIN ON THE MAIN RIVER BETWEEN
PATHFINDER AND GUERNSEY SUPPORT THE LIMITATION WITHOUT MORE TO THE
IRRIGATION OF 15,000 ACRES. 

THE UNITED STATES, HOWEVER, INSISTS THAT SOME REGULATION OF THE
TRIBUTARIES BETWEEN PATHFINDER AND GUERNSEY IS ESSENTIAL.  IT CLAIMS
THAT THERE ARE POSSIBILITIES OF FUTURE ADDITIONAL STORAGE ON THESE
TRIBUTARIES AND THAT IF FUTURE STORAGE IS INCREASED THERE WILL BE A
REDUCTION IN TRIBUTARY FLOWS INTO THE MAIN RIVER AVAILABLE FOR STORAGE
IN THE GUERNSEY, LAKE ALICE AND LAKE MINATARE RESERVOIRS OF THE NORTH
PLATTE PROJECT.  WE DO NOT KNOW FROM THE PRESENT RECORD THE PRECISE
EXTENT OF EXISTING RESERVOIR STORAGE IN THIS AREA.  WE DO KNOW,
HOWEVER, THAT THERE IS SOME STORAGE CAPACITY, E.G. 20,000 ACRE FEET IN
THE LA PRELE PROJECT.  IN ABSENCE OF EVIDENCE SHOWING WHAT CONTRIBUTION
THESE TRIBUTARIES NOW MAKE TO THE SUPPLY OF THE RESERVOIRS OR WHAT
ADDITIONAL STORAGE PROJECTS MAY BE POSSIBLE OR WHAT THEIR EFFECT MIGHT
BE, THE SPECIAL MASTER CONCLUDED THERE WAS AN INSUFFICIENT BASIS FOR
ANY PRESENT LIMITATION ON STORAGE.  WE FIND NO EVIDENCE OF ANY PRESENT
THREAT TO THE WATER SUPPLY FROM THIS SOURCE.  IF SUCH THREAT APPEARS
AND IT PROMISES TO DISTURB THE DELICATE BALANCE OF THE RIVER,
APPLICATION MAY BE MADE AT THE FOOT OF THE DECREE FOR AN APPROPRIATE
RESTRICTION. 

PATHFINDER, GUERNSEY, SEMINOE AND ALCOVA RESERVOIRS AND THE CASPER
CANAL.  THE SPECIAL MASTER RECOMMENDS THAT WYOMING BE ENJOINED FROM THE
STORAGE OF WATER IN THESE FOUR RESERVOIRS AND FROM THE DIVERSION OF
NATURAL FLOW WATER THROUGH THE CASPER CANAL FOR THE KENDRICK PROJECT,
BETWEEN AND INCLUDING MAY 1 AND SEPTEMBER 30 OF EACH YEAR, OTHERWISE
THAN IN ACCORDANCE WITH THE RULE OF PRIORITY IN RELATION TO THE
APPROPRIATIONS OF THE NEBRASKA LANDS SUPPLIED BY THE FRENCH CANAL AND
BY THE STATE LINE CANALS; THAT ALL THOSE NEBRASKA APPROPRIATIONS FOR
THAT PURPOSE BE ADJUDGED SENIOR TO THOSE FOUR RESERVOIRS AND TO CASPER
CANAL; AND THAT THE SENIOR NEBRASKA APPROPRIATIONS BE IDENTIFIED AND
DEFINED AS FOLLOWS:

                                              LIMITATION
SEASONAL

            LANDS                  CANAL      IN SECOND
LIMITATION

                    FEET  IN ACRE FEET 

TRACT OF 1,025 ACRES-------------FRENCH--------         15
2,227 

MITCHELL IRRIGATION DISTRICT-----MITCHELL------        195 35,000 

GERING IRRIGATION DISTRICT-------GERING--------    193        36,000 

FARMERS IRRIGATION DISTRICT------TRI-STATE-----        748
183,050 

RAMSHORN IRRIGATION DISTRICT-----RAMSHORN------         14
3,000 

WE HAVE NOTED THE PRIORITIES OF PATHFINDER AND GUERNSEY, AS WELL AS
THOSE OF THE KENDRICK PROJECT.  WE HAVE NOTED THAT THEIR PRIORITIES
MAKE THEM JUNIOR TO MANY DOWNSTREAM APPROPRIATORS INCLUDING THE STATE
LINE CANALS.  WHILE THE FOUR RESERVOIRS IN QUESTION ARE WYOMING
APPROPRIATORS, PATHFINDER AND GUERNSEY WERE DESIGNED MORE FOR THE
BENEFIT OF NEBRASKA THAN OF WYOMING LANDS.  RECOGNITION OF THE
PRIORITIES INTERSTATE MAKES OBVIOUS THE PROPRIETY OF AN INTERSTATE
APPORTIONMENT. 

WYOMING OBJECTS TO THIS TREATMENT OF THE KENDRICK PROJECT.  AS WE
HAVE SAID, SHE CONTENDS FOR A MASS ALLOCATION OF WATER BETWEEN NEBRASKA
AND WYOMING UNDER WHICH A DIVERSION REQUIREMENT OF 168,000 ACRE FEET
SHOULD BE ALLOTTED FOR THE KENDRICK PROJECT.  WYOMING HAS PRESENTED A
DETAILED ANALYSIS OF THE WATER SUPPLY OF THE RIVER ON THE BASIS OF
WHICH IT IS ARGUED THAT THE FLOW DURING THE PERIOD SINCE 1930 IS NOT
THE TRUE MEASURE OF THE DEPENDABLE SUPPLY.  IT IS URGED THAT THE LONG
TIME AVERAGES MUST BE CONSIDERED IN COMPUTING THE DEPENDABLE SUPPLY AND
IF THEY ARE AND IF THE STORAGE CAPACITY OF THESE RESERVOIRS IS ADDED TO
THE NATURAL FLOW, THE DEPENDABLE SUPPLY WILL BE INCREASED.  MOREOVER,
WYOMING ARGUES THAT NO ALLOCATION CAN BE MADE TO INDIVIDUAL
APPROPRIATORS IN ANY OF THE STATES BECAUSE THEY ARE NOT PARTIES AND
CANNOT BE BOUND IN THEIR ABSENCE. 

WE HAVE CAREFULLY CONSIDERED THESE CONTENTIONS OF WYOMING AND HAVE
CONCLUDED THAT THEY DO NOT WARRANT A DEPARTURE FROM THE METHOD OF
ALLOCATION PROPOSED BY THE SPECIAL MASTER.  ON THE RECORD BEFORE US WE
ARE NOT JUSTIFIED IN ASSUMING THAT THERE WILL BE A GREATER SUPPLY THAN
HAS BEEN AVAILABLE DURING THE 1931-1940 PERIOD.  TO BASE THE DECREE ON
A LARGER SUPPLY WOULD NOT BE TO BASE IT ON A DEPENDABLE SUPPLY.  UNDER
THOSE CONDITIONS KENDRICK CAN STORE NO WATER.  EVEN WITH RESERVOIR
REGULATION WE ARE NOT CONVINCED THAT WYOMING HAS SHOWN AN ADEQUATE
SUPPLY TO JUSTIFY THE ALLOCATION SHE SEEKS.  THE COMBINED STORAGE
CAPACITY OF THE NORTH PLATTE AND KENDRICK PROJECTS IS EQUAL TO 175 PER
CENT OF THE LONG-TIME ANNUAL AVERAGE RIVER RUN-OFF OF THE RIVER AT
PATHFINDER.  WE HAVE HERE STORAGE CAPACITY IN EXCESS OF THE PRACTICABLE
LIMITS OF A DEPENDABLE SUPPLY AS THAT TERM HAS HITHERTO BEEN
CONSTRUED.  WYOMING V. COLORADO, SUPRA. 

A MASS ALLOCATION WAS MADE IN WYOMING V. COLORADO.  BUT THERE IS NO
HARD AND FAST RULE WHICH REQUIRES IT IN ALL CASES.  THE STANDARD OF AN
EQUITABLE APPORTIONMENT REQUIRES AN ADAPTATION OF THE FORMULA TO THE
NECESSITIES OF THE PARTICULAR SITUATION.  WE MAY ASSUME THAT THE RIGHTS
OF THE APPROPRIATORS INTER SE MAY NOT BE ADJUDICATED IN THEIR ABSENCE. 
BUT ANY ALLOCATION BETWEEN WYOMING AND NEBRASKA, IF IT IS TO BE FAIR
AND JUST, MUST REFLECT THE PRIORITIES OF APPROPRIATORS IN THE TWO
STATES.  UNLESS THE PRIORITIES OF THE DOWNSTREAM CANALS SENIOR TO THE
FOUR RESERVOIRS AND CASPER CANAL ARE DETERMINED, NO ALLOCATION IS
POSSIBLE.  THE DETERMINATION OF THOSE PRIORITIES FOR THE LIMITED
PURPOSES OF THIS INTERSTATE APPORTIONMENT IS ACCORDINGLY JUSTIFIED. 
THE EQUITABLE SHARE OF A STATE MAY BE DETERMINED IN THIS LITIGATION
WITH SUCH LIMITATIONS AS THE EQUITY OF THE SITUATION REQUIRES AND
IRRESPECTIVE OF THE INDIRECT EFFECT WHICH THAT DETERMINATION MAY HAVE
ON INDIVIDUAL RIGHTS WITHIN THE STATE.  HINDERLIDER V. LA PLATA CO.,
304 U.S. 92, 106-108. 

NEBRASKA CONTENDS THAT THE ALLOTMENT TO FARMERS IRRIGATION DISTRICT
BE INCREASED IN THE SEASONAL LIMITATION RECOMMENDED, SO THAT THE WARREN
ACT CONTRACT WHICH IT HAS MAY BE RECOGNIZED.  BUT FOR REASONS WHICH WE
WILL ELABORATE THE ONLY WATER SUBJECT TO THE PRESENT ALLOCATION IS
NATURAL FLOW.  CONTRACTS REQUIRING THE SUPPLEMENTATION OF NATURAL FLOW
BY STORAGE ARE UNAFFECTED.  FN16    THE UNITED STATES CONTENDS THAT
NEBRASKA'S EQUITABLE SHARE OF NATURAL FLOW WATER SHOULD BE LIMITED TO
THAT WHICH IS IN FACT BEING DIVERTED AND USED BY ANY OR ALL OF THE
DESIGNATED CANALS WITHIN THE SPECIFIED LIMITATIONS IN ACRE-FEET AND
SECOND-FEET.  IT IS SAID THAT THESE PROVISIONS OF THE PROPOSED DECREE
ARE THE OPERATIVE PROVISIONS WHICH DETERMINE THE AMOUNT OF NATURAL FLOW
TO BE PASSED INTO THE WHALEN-TRI-STATE DAM SECTION OF THE RIVER.  IT IS
SAID THAT NEBRASKA CAN PERMIT, AS IT HAS HERETOFORE, WATER TO PASS THE
TRI-STATE DAM FOR USE BELOW THAT POINT EVEN THOUGH HER EQUITABLE SHARE
IS CALCULATED ONLY ON THE BASIS OF THE NEEDS OF APPROPRIATORS AT OR
ABOVE TRI-STATE.  AND IT IS POINTED OUT THAT THE LANDS SERVED BY
DIVERSIONS BELOW TRI-STATE HAVE NO EQUITABLE CLAIM ON WATER ORIGINATING
IN WYOMING OR COLORADO, THEIR NEEDS BEING REASONABLY MET BY LOCAL
SUPPLIES.  WE THINK, AS WE WILL DEVELOP LATER, THAT THE RECORD SUSTAINS
THE CONCLUSION THAT EQUITABLE APPORTIONMENT DOES NOT PERMIT NEBRASKA TO
DEMAND DIRECT FLOW WATER FROM ABOVE WHALEN FOR USE BELOW TRI-STATE. 
THE RESERVOIRS ABOVE WHALEN MAY STORE WATER AND KENDRICK MAY DIVERT
WHENEVER AND TO THE EXTENT THAT THE NEBRASKA CANALS AT OR ABOVE TRI
STATE ARE NOT USING OR DIVERTING NATURAL FLOW.  WE DO NOT BELIEVE,
HOWEVER, THAT ANY REVISION OF THIS PART OF THE PROPOSED DECREE NEED BE
MADE.  WE CANNOT ASSUME THAT NEBRASKA WILL UNDERTAKE TO CIRCUMVENT THE
DECREE.  MOREOVER, THE PROPOSED REVISION OFFERS DIFFICULTIES.  AS
NEBRASKA POINTS OUT, WHEN A JUNIOR NEBRASKA CANAL HAVING STORAGE RIGHTS
IS CLOSED TO NATURAL FLOW DUE TO OPERATION OF NEBRASKA PRIORITIES, IT
SHOULD BE ALLOWED TO MAKE UP THE DEFICIENCY IN ITS SUPPLY IN RELATION
TO ITS REQUIREMENTS BY ASKING FOR STORAGE WATER UNDER SUCH CONTRACTS AS
IT MAY HAVE WITH THE UNITED STATES.  THE UNITED STATES DOES NOT
REPUDIATE THOSE CONTRACTS.  WE CONCLUDE THAT IT WOULD UNDULY COMPLICATE
THE DECREE TO RECAST ITS PROVISIONS SO AS TO TAKE THEM INTO ACCOUNT. 
IF, AS THE UNITED STATES FEARS, THE DECREE IS ADMINISTERED SO AS TO
DIVERT WATER FROM ABOVE TRI-STATE TO THE USE OF THOSE DIVERTING BELOW
TRI-STATE, APPLICATION FOR APPROPRIATE RELIEF MAY BE MADE AT THE FOOT
OF THE DECREE. 

THE UNITED STATES ASSERTS THAT IT SHOULD BE GIVEN A SEPARATE
ALLOCATION OF WATER EVEN IF IT IS NOT TREATED AS THE OWNER OF
UNAPPROPRIATED WATER AND HENCE THE POSSESSOR OF AN UNBROKEN CHAIN OF
TITLE TO PROJECT WATER.  THE SPECIAL MASTER CONCLUDED THAT THE POSITION
OF THE UNITED STATES OR THE SECRETARY OF THE INTERIOR IS THAT OF AN
APPROPRIATOR OF WATER FOR STORAGE UNDER THE LAWS OF WYOMING AND THAT
ITS INTERESTS ARE REPRESENTED IN THAT CONNECTION BY WYOMING.  THAT WAS
IN LINE WITH THE RULING OF THIS COURT WHEN WYOMING MOVED TO DISMISS
THIS VERY CASE ON THE GROUND, AMONG OTHERS, THAT THE SECRETARY OF THE
INTERIOR WAS A NECESSARY PARTY.  NEBRASKA V. WYOMING, 295 U.S. 40, 43. 
THE COURT SAID:  "THE BILL ALLEGES, AND WE KNOW AS MATTER OF LAW, THAT
THE SECRETARY AND HIS AGENTS, ACTING BY AUTHORITY OF THE RECLAMATION
ACT AND SUPPLEMENTARY LEGISLATION, MUST OBTAIN PERMITS AND PRIORITIES
FOR THE USE OF WATER FROM THE STATE OF WYOMING IN THE SAME MANNER AS A
PRIVATE APPROPRIATOR OR AN IRRIGATION DISTRICT FORMED UNDER THE STATE
LAW.  HIS RIGHTS CAN RISE NO HIGHER THAN THOSE OF WYOMING, AND AN
ADJUDICATION OF THE DEFENDANT'S RIGHTS WILL NECESSARILY BIND HIM. 
WYOMING WILL STAND IN JUDGMENT FOR HIM AS FOR ANY OTHER APPROPRIATOR IN
THAT STATE.  HE IS NOT A NECESSARY PARTY."  WE HAVE DISCUSSED THE
PROCEDURE OF APPROPRIATION WHICH HAS BEEN FOLLOWED IN THIS REGION.  THE
SECRETARY OF THE INTERIOR MADE THE APPROPRIATIONS UNDER WYOMING LAW. 
BUT WE HAVE NOTED THAT THE WATER RIGHTS WERE ADJUDICATED TO BE IN THE
INDIVIDUAL LANDOWNERS.  HENCE, SO FAR AS THE WATER RIGHTS ARE
CONCERNED, WE THINK IT IS NOT PROPER TO ANALOGIZE THIS CASE TO ONE
WHERE THE UNITED STATES ACQUIRES PROPERTY WITHIN A STATE AND ASSERTS
ITS TITLE AGAINST THE STATE AS WELL AS OTHERS. 

THE UNITED STATES CLAIMS THAT IT IS AT LEAST ENTITLED TO BE
RECOGNIZED AS THE OWNER OF THE STORAGE WATER WITH FULL CONTROL OVER ITS
DISPOSITION AND USE UNDER WYOMING LAW.  THAT SEEMS TO BE TRUE UNDER
WYOMING LAW.  WYO. REV. STATS. (1931) SECS. 122-1601, 122-1602; SCHERCK
V. NICHOLS, 55 WYO. 4, 19, 95 P.2D 74.  THE DECREE WHICH IS ENTERED
WILL IN NO WAY CLOUD SUCH CLAIM AS IT HAS TO STORAGE WATER UNDER
WYOMING LAW; NOR WILL THE DECREE INTERFERE WITH THE OWNERSHIP AND
OPERATION BY THE UNITED STATES OF THE VARIOUS FEDERAL STORAGE AND POWER
PLANTS, WORKS, AND FACILITIES.  WE REPEAT THAT THE DECREE IS RESTRICTED
TO AN APPORTIONMENT OF THE NATURAL FLOW. 

THE DECREE WILL, HOWEVER, PLACE A RESTRAINT ON THE STORAGE OF WATER
IN PATHFINDER, GUERNSEY, SEMINOE AND ALCOVA RESERVOIRS, SO AS TO
PROTECT THE NEBRASKA LANDS SERVED BY THE FRENCH CANAL AND THE STATE
LINE CANALS WHICH ARE SENIOR.  THE UNITED STATES POINTS OUT THAT IF
NEBRASKA PERMITS SOME OF THE NATURAL FLOW TO GO BELOW THE TRI-STATE
DAM, AS IT MAY DO, THUS CAUSING CERTAIN OF THE STATE LINE CANALS TO GO
SHORT, THOSE CANALS WOULD BE ENTITLED TO HAVE ANY DEFICIENCIES REPLACED
BY THE UNITED STATES UNDER WARREN ACT CONTRACTS.  IT SAYS THAT UNDER
THE PROPOSED DECREE ONLY STORAGE WATER AND NOT NATURAL FLOW COULD BE
SUPPLIED AND UNLESS STORAGE WATER IS APPROPRIATELY DEFINED BY THE
DECREE, IT MIGHT NOT BE POSSIBLE TO MEET THE CONTRACT REQUIREMENTS
WITHOUT VIOLATION OF THE LIMITATIONS ON NATURAL FLOW WHICH ARE FIXED BY
THE DECREE.  AND IT SAYS THAT THAT WOULD BE THE RESULT IF STORAGE WATER
WERE DEFINED TO EXCLUDE ALL WATER PASSED THROUGH A RESERVOIR AT ANY
TIME WHEN ITS INFLOW IS AS GREAT AS OR GREATER THAN ITS OUTFLOW. 

NEBRASKA RECOGNIZES THE DESIRABILITY OF THAT COURSE.  SHE CONTENDS,
HOWEVER, THAT WHERE THE OUTFLOW IS EQUAL TO OR LESS THAN THE INTAKE,
NONE OF THE RELEASED WATER CAN BE CONSIDERED AS STORAGE WATER.  AND SHE
SAYS THAT WHEN THE WATER BEING RELEASED IS GREATER THAN THE INFLOW,
THAT PORTION WHICH REPRESENTS THE AMOUNT OF NATURAL FLOW BEING TAKEN IN
AT THE INTAKES CANNOT BE CONSIDERED AS STORAGE.  SEE GILA VALLEY
IRRIGATION DIST. V. UNITED STATES, 118 F.2D 507.  SHE SAYS THAT THE
UNITED STATES BY ITS PROPOSAL IS ATTEMPTING TO TRANSFORM INTO STORAGE
WATER WHAT IS IN FACT NATURAL FLOW ORIGINATING ABOVE THE RESERVOIRS. 

FOR REASONS WHICH WILL BE MORE FULLY DISCUSSED, WE THINK THAT STORAGE
WATER SHOULD BE LEFT FOR DISTRIBUTION IN ACCORDANCE WITH THE CONTRACTS
WHICH GOVERN IT.  ACCORDINGLY, WE THINK IT IS ADVISABLE TO DEFINE
STORAGE WATER IN THE MANNER PROPOSED BY THE UNITED STATES, SO AS TO
MAKE THE OPERATION OF THE DECREE MORE CERTAIN AND TO ADJUST IT TO THE
STORAGE WATER CONTRACTS WHICH ARE OUTSTANDING.  STORAGE WATER THEREFORE
IS DEFINED FOR PURPOSES OF THIS DECREE AS ANY WATER WHICH IS RELEASED
FROM RESERVOIRS FOR USE ON LANDS UNDER CANALS HAVING STORAGE CONTRACTS
IN ADDITION TO THE WATER WHICH IS DISCHARGED THROUGH THOSE RESERVOIRS
TO MEET THE REQUIREMENTS OF ANY CANAL AS RECOGNIZED IN THE DECREE. 
THIS DEFINITION DOES NOT ADVERSELY AFFECT RIGHTS RECOGNIZED IN THE
DECREE.  IT IS PERHAPS A DEPARTURE FROM THE ORDINARY MEANING OF
STORAGE.  BUT SO LONG AS THE WARREN ACT CONTRACTS ARE OUTSTANDING THAT
DEFINITION IS NECESSARY IN ORDER TO GIVE THEM EFFECTIVENESS.  FOR THEY
DO NOT PROVIDE THAT THE UNITED STATES WILL FURNISH WATER IN SUCH
AMOUNTS AS MAY FROM TIME TO TIME BE AVAILABLE.  THE UNITED STATES
AGREES TO DELIVER WATER WHICH WILL, WITH ALL THE WATER TO WHICH THE
LAND IS ENTITLED BY APPROPRIATION OR OTHERWISE, AGGREGATE A STATED
AMOUNT.  FN17 

THERE ARE OTHER EXCEPTIONS OF A MINOR CHARACTER TO THIS PART OF THE
DECREE.  WE HAVE CONSIDERED THEM AND CONCLUDE THAT THEY DO NOT HAVE
MERIT. 

PATHFINDER, GUERNSEY, SEMINOE AND ALCOVA RESERVOIRS.  THE SPECIAL
MASTER RECOMMENDS THAT WYOMING BE ENJOINED TO RESPECT THE RULE OF
PRIORITY OF THESE RESERVOIRS IN RESPECT TO EACH OTHER AND THAT THE
ORDER OF SENIORITY AS BETWEEN THEM BE DEFINED AS FOLLOWS:  (1)
PATHFINDER, (2) GUERNSEY, (3) SEMINOE, AND (4) ALCOVA.  HE RECOMMENDS,
HOWEVER, THAT WATER BE ALLOWED TO BE IMPOUNDED IN SEMINOE "OUT OF
PRIORITY" IN RELATION TO PATHFINDER AND GUERNSEY FOR SUCH USE ONLY IN
THE GENERATION OF POWER BY THE SEMINOE HYDROELECTRIC POWER PLANT AS
WILL NOT MATERIALLY INTERFERE WITH THE ADMINISTRATION OF THE WATER FOR
IRRIGATION PURPOSES ACCORDING TO THE PRIORITY AS DECREED FOR THE FRENCH
CANAL AND THE STATE LINE CANALS. 

THE UNITED STATES CONTENDS THAT THE DECREE SHOULD PERMIT JOINT
OPERATION OF THE FEDERAL RESERVOIRS WITHOUT REFERENCE TO PRIORITIES
AMONG THEMSELVES OR AMONG THE LANDS WHICH THEY SERVE, IN THE EVENT OF
AN APPROPRIATE ADJUSTMENT OF STORAGE CONTRACTS.  CONCEDEDLY THE VARIOUS
STORAGE WATER CONTRACTS, INCLUDING WARREN ACT CONTRACTS, PRECLUDE JOINT
OPERATION OF SEMINOE AND PATHFINDER.  THE SPECIAL MASTER ALSO CONCLUDED
THAT JOINT OPERATION WOULD RAISE QUESTIONS CONCERNING RIGHTS UNDER
WYOMING NATURAL FLOW APPROPRIATIONS SENIOR TO SEMINOE BUT JUNIOR TO
PATHFINDER.  IT MAY BE THAT THE LATTER PROBLEM WOULD NOT BE DIFFICULT. 
FOR AS THE UNITED STATES SUGGESTS, UNDER JOINT OPERATION THE RESERVOIRS
COULD OPERATE ON THE PATHFINDER PRIORITY UNTIL THEY HAD THE COMBINED
STORAGE EQUIVALENT TO PATHFINDER.  THEREAFTER THEY WOULD STORE NO WATER
EXCEPT SUCH AS IS NEEDED FOR APPROPRIATIONS HAVING PRIORITIES SENIOR TO
SEMINOE.  SINCE JOINT OPERATION, HOWEVER, COULD NOT BE PRESENTLY
INSTITUTED BUT WOULD HAVE TO WAIT MODIFICATIONS OF OUTSTANDING
CONTRACTS, WE THINK IT BEST TO DEFER CONSIDERATION OF THE PROPOSAL
UNTIL JOINT OPERATION IN FACT AND IN LAW IS PERMISSIBLE.  THE DECREE
WILL BE WITHOUT PREJUDICE TO THE PARTIES TO MAKE APPLICATION FOR JOINT
OPERATION WHENEVER CHANGED CONDITIONS MAKE IT POSSIBLE. 

THE INTERSTATE, FT. LARAMIE, AND NORTHPORT CANALS ARE, AS WE HAVE
NOTED, PART OF THE NORTH PLATTE PROJECT.  THE KENDRICK PROJECT IS
SUBORDINATE TO THE NORTH PLATTE PROJECT.  THE SPECIAL MASTER CONCLUDED
THAT PROPER REGULATION FOR KENDRICK WOULD BE ONE REQUIRING THE
OBSERVANCE OF PRIORITIES, ALCOVA TO TRI-STATE DAM, BOTH IN THE STORAGE
OF WATER IN SEMINOE AND ALCOVA AND IN THE DIVERSION OF NATURAL FLOW BY
THE CASPER CANAL.  THE RECORD SUPPORTS THAT CONCLUSION.  NEBRASKA
ACCORDINGLY URGES THAT THE INTERSTATE, FT. LARAMIE, AND NORTHPORT
CANALS RECEIVE THE SAME PROTECTION FROM KENDRICK AS THE FRENCH CANAL
AND THE STATE LINE CANALS.  IF THERE WERE DOUBT THAT INTERSTATE, FT.
LARAMIE, AND NORTHPORT WOULD RECEIVE PRIORITY IN TREATMENT, THE DECREE
COULD BE FASHIONED SO AS TO PROVIDE FOR IT.  BUT THE MATTER IS COVERED
BY CONTRACT BETWEEN THE UNITED STATES AND THE CASPER-ALCOVA IRRIGATION
DISTRICT.  THAT CONTRACT, WHICH THE UNITED STATES FULLY RECOGNIZES,
PRECLUDES OPERATION OF THE KENDRICK PROJECT EXCEPT IN RECOGNITION OF
PRIOR RIGHTS IN THE NORTH PLATTE PROJECT.  FN18  WE THEREFORE DO NOT
THINK IT IS NECESSARY TO INCLUDE IN THE DECREE THE ADDITIONAL PROVISION
WHICH NEBRASKA SUGGESTS. 

RETURN FLOW OF KENDRICK PROJECT.  THE SPECIAL MASTER RECOMMENDS THAT
WYOMING BE ENJOINED (1) FROM THE RECAPTURE OF RETURN FLOW WATER OF THE
KENDRICK PROJECT AFTER IT SHALL HAVE REACHED THE NORTH PLATTE RIVER AND
BECOME COMMINGLED WITH THE GENERAL FLOW OF THE RIVER, AND (2) FROM
DIVERTING WATER FROM THE RIVER AT OR ABOVE ALCOVA RESERVOIR AS IN LIEU
OF KENDRICK RETURN FLOW WATER REACHING THE RIVER BELOW ALCOVA. 

THE UNITED STATES POINTS OUT THAT THE FIRST PART OF THIS RESTRICTION
MAY BE CONSTRUED TO FORBID WYOMING DIVERTERS FROM MAKING THE SAME USE
OF KENDRICK RETURN FLOW WATER AS IS PERMITTED NEBRASKA DIVERTERS. 
NATURAL FLOW IN THIS CASE IS USED THROUGHOUT AS INCLUDING RETURN FLOW. 
RETURN FLOWS ONCE RETURNED TO THE RIVER AND ABANDONED ARE PART OF THE
NATURAL FLOW AVAILABLE FOR USE BY ALL NATURAL FLOW DIVERTERS WITHIN THE
LIMITATIONS OF THE APPORTIONMENT.  TO AVOID ANY POSSIBLE
MISUNDERSTANDING, THERE SHOULD BE SUBSTITUTED FOR THE FIRST CLAUSE OF
THIS PROPOSED PROVISION A CLAUSE WHICH MAKES CLEAR THAT RETURN FLOWS OF
THE KENDRICK PROJECT ARE, FOR PURPOSES OF THE DECREE, DEEMED TO BE
NATURAL FLOWS WHEN THEY HAVE REACHED THE NORTH PLATTE RIVER. 

THE QUESTION WHETHER THE UNITED STATES MAY DIVERT WATER FROM THE
RIVER AT OR ABOVE ALCOVA RESERVOIR AS IN LIEU OF KENDRICK RETURN FLOW
WATER REACHING THE RIVER BELOW ALCOVA PRESENTS COMPLEXITIES.  BOTH THE
UNITED STATES AND WYOMING CONTEND THAT THAT PRIVILEGE SHOULD BE
GRANTED.  THE RETURN FLOW IS ESTIMATED AT 96,000 ACRE FEET A YEAR,
46,000 ACRE FEET BEING THE ESTIMATED RETURN DURING THE IRRIGATION
SEASON.  SOME OF THAT RETURN FLOW WILL BE NATURAL DRAINAGE, SOME WILL
BE FROM SUMP AREAS, ALREADY NOTED, FROM WHICH THE UNITED STATES WILL
CONSTRUCT DRAINAGE DITCHES AND THUS RETURN TO THE RIVER WATER WHICH
WOULD OTHERWISE BE LOST.  HOW MUCH WILL BE RETURNED BY NATURAL DRAINAGE
AND HOW MUCH FROM THE SUMP AREAS IS NOT PRESENTLY KNOWN, SINCE THE
KENDRICK PROJECT IS NOT COMPLETED. 

WE WILL CONSIDER FIRST THE RETURN FLOW FROM NATURAL DRAINAGE.  IDE V.
UNITED STATES, 263 U.S. 497, HELD THAT THE UNITED STATES MIGHT
RECAPTURE WATER WHICH RESULTED FROM SEEPAGE FROM IRRIGATED LANDS UNDER
A RECLAMATION PROJECT AND WHICH WAS NOT SUSCEPTIBLE OF PRIVATE
APPROPRIATION UNDER WYOMING LAW.  THE SAME CONCLUSION WAS REACHED IN
UNITED STATES V. TILLEY, 124 F.2D 850, WHERE THE UNITED STATES WAS HELD
TO BE ENTITLED TO USE AND APPLY THE SEEPAGE FROM ONE DIVISION OF THE
NORTH PLATTE PROJECT TO SUPPLY LANDS OF ANOTHER DIVISION AS AGAINST THE
CLAIM OF NEBRASKA OF A RIGHT TO INTERCEPT THE SEEPAGE AND APPLY IT TO
APPROPRIATORS SENIOR TO THE PROJECT.  AND SEE RAMSHORN DITCH CO. V.
UNITED STATES, 269 F. 80.  CF. UNITED STATES V. WARMSPRINGS IRRIGATION
DIST., 38 F.SUPP.  239.  IN THE IDE CASE THIS COURT SAID:    "THE
SEEPAGE PRODUCING THE ARTIFICIAL FLOW IS PART OF THE WATER WHICH THE
PLAINTIFF, IN VIRTUE OF ITS APPROPRIATION, TAKES FROM THE SHOSHONE
RIVER AND CONDUCTS TO THE PROJECT LANDS IN THE VICINITY OF THE RAVINE
FOR USE IN THEIR IRRIGATION.  THE DEFENDANTS INSIST THAT WHEN WATER IS
ONCE USED UNDER THE APPROPRIATION IT CANNOT BE USED AGAIN,  - THAT THE
RIGHT TO USE IT IS EXHAUSTED.  BUT WE PERCEIVE NO GROUND FOR THINKING
THE APPROPRIATION IS THUS RESTRICTED.  ACCORDING TO THE RECORD IT IS
INTENDED TO COVER, AND DOES COVER, THE RECLAMATION AND CULTIVATION OF
ALL THE LANDS WITHIN THE PROJECT.  A SECOND USE IN ACCOMPLISHING THAT
OBJECT IS AS MUCH WITHIN THE SCOPE OF THE APPROPRIATION AS A FIRST USE
IS.  THE STATE LAW AND THE NATIONAL RECLAMATION ACT BOTH CONTEMPLATE
THAT THE WATER SHALL BE SO CONSERVED THAT IT MAY BE SUBJECTED TO THE
LARGEST PRACTICABLE USE.  A FURTHER CONTENTION IS THAT THE PLAINTIFF
SELLS THE WATER BEFORE IT IS USED, AND THEREFORE HAS NO RIGHT IN THE
SEEPAGE.  BUT THE WATER IS NOT SOLD.  IN DISPOSING OF THE LANDS IN
SMALL PARCELS, THE PLAINTIFF INVESTS EACH PURCHASER WITH A RIGHT TO
HAVE ENOUGH WATER SUPPLIED FROM THE PROJECT CANALS TO IRRIGATE HIS
LAND, BUT IT DOES NOT GIVE UP ALL CONTROL OVER THE WATER OR TO DO MORE
THAN PASS TO THE PURCHASER A RIGHT TO USE THE WATER SO FAR AS MAY BE
NECESSARY IN PROPERLY CULTIVATING HIS LAND.  BEYOND THIS ALL RIGHTS
INCIDENT TO THE APPROPRIATION ARE RETAINED BY THE PLAINTIFF.  ITS RIGHT
IN THE SEEPAGE IS WELL ILLUSTRATED BY THE FOLLOWING EXCERPT FROM THE
OPINION OF DISTRICT JUDGE DIETRICH IN UNITED STATES V. HAGA, 276 FED.
41, 43: 

"'ONE WHO BY THE EXPENDITURE OF MONEY AND LABOR DIVERTS APPROPRIABLE
WATER FROM A STREAM, AND THUS MAKES IT AVAILABLE FOR FRUITFUL PURPOSES,
IS ENTITLED TO ITS EXCLUSIVE CONTROL SO LONG AS HE IS ABLE AND WILLING
TO APPLY IT TO BENEFICIAL USES, AND SUCH RIGHT EXTENDS TO WHAT IS
COMMONLY KNOWN AS WASTAGE FROM SURFACE RUN-OFF AND DEEP PERCOLATION,
NECESSARILY INCIDENT TO PRACTICAL IRRIGATION.  CONSIDERATIONS OF BOTH
PUBLIC POLICY AND NATURAL JUSTICE STRONGLY SUPPORT SUCH A RULE.  NOR IS
IT ESSENTIAL TO HIS CONTROL THAT THE APPROPRIATOR MAINTAIN CONTINUOUS
ACTUAL POSSESSION OF SUCH WATER.  SO LONG AS HE DOES NOT ABANDON IT OR
FORFEIT IT BY FAILURE TO USE, HE MAY ASSERT HIS RIGHTS.  IT IS NOT
NECESSARY THAT HE CONFINE IT UPON HIS OWN LAND OR CONVEY IT IN AN
ARTIFICIAL CONDUIT.  IT IS REQUISITE, OF COURSE, THAT HE BE ABLE TO
IDENTIFY IT; BUT, SUBJECT TO THAT LIMITATION, HE MAY CONDUCT IT THROUGH
NATURAL CHANNELS AND MAY EVEN COMMINGLE IT OR SUFFER IT TO COMMINGLE
WITH OTHER WATERS.  IN SHORT, THE RIGHTS OF AN APPROPRIATOR IN THESE
RESPECTS ARE NOT AFFECTED BY THE FACT THAT THE WATER HAS ONCE BEEN
USED.'"  263 U.S. PP. 505-506. 

IF THAT PRINCIPLE WERE LITERALLY APPLIED, THE UNITED STATES COULD
RECLAIM THE RETURN FLOWS 200 MILES DOWNSTREAM FROM KENDRICK AT WHALEN
WHERE THEY COULD BE DIVERTED TO THE INTERSTATE OR FT. LARAMIE CANAL. 
OR IF NOT RECLAIMED THERE, THE RETURN FLOWS COULD BE APPLIED BELOW THE
NEBRASKA LINE TO WARREN ACT CONTRACT REQUIREMENTS.  THE SPECIAL MASTER
THOUGHT ANY SUCH PROGRAM WOULD BE SO DISRUPTIVE OF ORDERLY
ADMINISTRATION AS TO BE INTOLERABLE.  THAT, OF COURSE, IS NOT THE
PROPOSAL.  THE PROPOSAL IS TO DIVERT WATER AT OR ABOVE ALCOVA IN LIEU
OF THE RETURN FLOWS FROM KENDRICK BELOW ALCOVA.  BUT WE THINK THE
PROPOSAL IS BASICALLY NOT IN ACCORD WITH THE PRINCIPLE UNDERLYING THE
IDE CASE.  THAT PRINCIPLE IS THAT ALTHOUGH THE WATER RIGHTS BELONG TO
THE LANDOWNERS, THE OWNER OF THE IRRIGATION PROJECT HAS AN INTEREST IN
THE APPROPRIATIVE RIGHTS TO THE EXTENT OF OBTAINING THE FULLEST USE OF
THE WATER FOR THE PROJECT.  IT MAY, THEREFORE, RETAIN CONTROL OVER THE
WATER UNTIL ABANDONMENT.  WE THINK IT GOES TOO FAR TO SAY THAT WHEN THE
RETURN FLOWS ARE ABANDONED, THEY MAY NEVERTHELESS BE EXCHANGED FOR
UPSTREAM DIVERSIONS BY THE SAME AMOUNT.  WHEN THE RETURN FLOWS ARE
ABANDONED, THEY BECOME SUBJECT TO APPROPRIATION DOWN STREAM.  SEE 2
KINNEY, IRRIGATION AND WATER RIGHTS (2D ED. 1912) SEC. 1114.  THEY NO
LONGER REMAIN SUBJECT TO CONTROL FOR FURTHER USE IN THE PROJECT.  ANY
CLAIM TO THEM OR THEIR EQUIVALENT UNDER THE FORM OF AN "IN LIEU OF"
DIVERSION IS LOST. 

WHEN IT COMES, HOWEVER, TO RETURN FLOWS RESULTING FROM DRAINAGE
FACILITIES INSTALLED BY THE UNITED STATES, DIFFERENT CONSIDERATIONS MAY
BE APPLICABLE.  BUT FOR THE DRAINAGE THROUGH ARTIFICIAL CHANNELS
FURNISHED BY THE UNITED STATES, THE UNUSED WATER WOULD NEVER RETURN TO
THE RIVER.  THE UNITED STATES COULD RIGHTFULLY LEAVE THE WATER IN THE
SUMPS.  IN THAT CASE, NO ONE WOULD EVER HAVE THE USE OF IT.  IT IS
ARGUED THAT SINCE BY ARTIFICIAL DRAINAGE THE UNITED STATES ADDS TO THE
NATURAL FLOW BELOW KENDRICK, IT IS ONLY FAIR TO ALLOW KENDRICK WHATEVER
BENEFIT MAY RESULT FROM THAT CONTRIBUTION.  CF. RENO V. RICHARDS, 32
IDA.  1, 178 P. 81.  ONE DIFFICULTY IS THAT THE DRAINAGE SYSTEM HAS NOT
BEEN COMPLETED, KENDRICK HAS NOT BEEN PUT INTO OPERATION, AND WE DO NOT
KNOW WHAT THE CONTRIBUTION BY ARTIFICIAL DRAINAGE WILL BE.
ACCORDINGLY, WE DO NOT AT THIS TIME CONSIDER THE CLAIM ON THE MERITS. 
WHEN KENDRICK HAS BEEN PUT INTO OPERATION AND THERE IS A FULL
DEVELOPMENT OF RETURN FLOWS, APPLICATION MAY BE MADE FOR REVISION OF
THE DECREE TO PERMIT "IN LIEU OF" DIVERSIONS AT OR ABOVE ALCOVA. 

WHALEN TO TRI-STATE DAM.  AS WE HAVE SAID, THIS IS THE CRITICAL
AROUND THE SPECIAL MASTER'S PROPOSAL FOR DEALING WITH IT.  HE PROPOSES
THAT THE NATURAL FLOW WATER IN THIS SECTION BETWEEN MAY 1 AND SEPTEMBER
30 EACH YEAR BE APPORTIONED ON THE BASIS OF 25 PER CENT TO WYOMING AND
75 PER CENT TO NEBRASKA.  HE RECOMMENDS THAT NEBRASKA BE GIVEN THE
RIGHT TO DESIGNATE FROM TIME TO TIME THE PORTION OF ITS SHARE WHICH
SHALL BE DELIVERED TO THE INTERSTATE, FT. LARAMIE, FRENCH AND MITCHELL
CANALS FOR USE ON NEBRASKA LANDS SERVED BY THEM AND THAT WYOMING BE
ENJOINED FROM DIVERSIONS CONTRARY TO THIS APPORTIONMENT.  FN19 

NONE OF THE PARTIES AGREES TO THIS APPORTIONMENT. 

WYOMING EARNESTLY CONTENDS THAT STORAGE WATER AS WELL AS NATURAL FLOW
SHOULD BE INCLUDED IN THE APPORTIONMENT WHICH IS MADE FOR THIS SECTION
OF THE RIVER.  SHE POINTS OUT THAT IN WYOMING V. COLORADO, SUPRA, THE
COURT MADE AN APPORTIONMENT BASED UPON A SUPPLY "WHICH IS FAIRLY
CONSTANT AND DEPENDABLE, OR IS SUSCEPTIBLE OF BEING MADE SO BY STORAGE
AND CONSERVATION WITHIN PRACTICABLE LIMITS."  259 U.S. P. 480.  SHE
ARGUES THAT THE COURT HAS THE POWER TO ALLOCATE STORAGE WATER THOUGH
ITS DISPOSITION IS CONTROLLED BY CONTRACTS BETWEEN THE UNITED STATES
AND IRRIGATION DISTRICTS; AND THAT AN APPORTIONMENT WHICH EXCLUDES
STORAGE WATER IS UNFAIR.  THE ARGUMENT IS THAT EACH STATE SHOULD BE
RESTRICTED TO THE USE OF SUCH SUPPLIES ONLY AS ARE NECESSARY TO PROVIDE
THEIR RESPECTIVE IRRIGATORS, INCLUDING THOSE RECEIVING WATER UNDER
CONTRACTS, WITH SUCH AMOUNTS AS ARE NECESSARY FOR BENEFICIAL USE.  THE
LARGE EXCESSES DIVERTED BY NEBRASKA ARE ADVERTED TO AS SHOWING THE
DEGREE TO WHICH CARRY-OVER STORAGE IN THE UPPER RESERVOIRS HAS BEEN
DIMINISHED AND THE SUPPLY FOR KENDRICK EXHAUSTED. 

THE SPECIAL MASTER CONCLUDED THAT SINCE THE NORTH PLATTE PROJECT
STORAGE WATER WAS DISPOSED OF UNDER CONTRACTS BETWEEN THE UNITED STATES
AND LANDOWNERS UNDER THE PROJECT AND UNDER THE WARREN ACT CONTRACTS,
THE OBLIGATIONS OF THOSE CONTRACTS AND THE NECESSITY OF PERFORMANCE
UNDER THEM MUST BE RECOGNIZED BY THE DECREE.  HE CONCLUDED, HOWEVER,
THAT IN THE ALLOCATION OF THE NATURAL FLOW THE STORAGE WATER AVAILABLE
MIGHT BEAR UPON THE EQUITIES OF THE STATES, ALTHOUGH IT WOULD HAVE NO
RELEVANCY TO THE LEGAL RIGHTS OF INDIVIDUAL APPROPRIATORS INTER SE
UNDER THE LAW OF EITHER WYOMING OR NEBRASKA.  WE THINK THE EQUITIES OF
THE CASE SUPPORT THE FAILURE TO INCLUDE STORAGE WATER IN THE
APPORTIONMENT.  WE DO NOT REACH THE QUESTION WHETHER THE PRESENCE OF
THE STORAGE WATER CONTRACTS WOULD PRECLUDE AN APPORTIONMENT OF STORAGE
WATER.  THE NINE WYOMING PRIVATE CANALS AND THE MITCHELL AND RAMSHORN
CANALS HAVE NO CONTRACT RIGHTS TO RECEIVE STORAGE WATER FROM THE
FEDERAL RESERVOIRS.  IT IS DIFFICULT FOR US TO SEE HOW IT WOULD BE
EQUITABLE TO MAKE AN APPORTIONMENT ON THE BASIS THAT THEY DO.  IN
CERTAIN YEARS IN THE PAST THERE HAVE BEEN EXCESSIVE DIVERSIONS BY
CANALS IN THIS SECTION, INCLUDING THE NINE WYOMING PRIVATE CANALS.  WE
CANNOT ASSUME THAT AN APPORTIONMENT OF STORAGE WATER IS NECESSARY TO
PREVENT A RECURRENCE OF THOSE PRACTICES.  CERTAINLY AN APPORTIONMENT OF
STORAGE WATER WOULD DISRUPT THE SYSTEM OF WATER ADMINISTRATION WHICH
HAS BECOME ESTABLISHED PURSUANT TO MANDATE OF CONGRESS IN SEC. 8 OF THE
RECLAMATION ACT THAT THE SECRETARY OF THE INTERIOR IN THE CONSTRUCTION
OF THESE FEDERAL PROJECTS SHOULD PROCEED IN CONFORMITY WITH STATE LAW. 
IN PURSUANCE THERETO ALL OF THE STORAGE WATER IS DISPOSED OF UNDER
CONTRACTS WITH PROJECT USERS AND WARREN ACT CANALS.  IT APPEARS THAT
UNDER THAT SYSTEM OF ADMINISTRATION OF STORAGE WATER NO STATE AND NO
WATER USERS WITHIN A STATE ARE ENTITLED TO THE USE OF STORAGE
FACILITIES OR STORAGE WATER UNLESS THEY CONTRACT FOR THE USE.  SEE WYO.
REV. STATS. (1931), SECS. 122-1504, 122-1508, 122-1602.  IF STORAGE
WATER IS NOT SEGREGATED, STORAGE WATER CONTRACTORS IN TIMES OF SHORTAGE
OF THE TOTAL SUPPLY WILL BE DEPRIVED OF THE USE OF A PART OF THE
STORAGE SUPPLY FOR WHICH THEY PAY.  IF STORAGE WATER IS NOT SEGREGATED,
THOSE WHO HAVE NOT CONTRACTED FOR THE STORAGE SUPPLY WILL RECEIVE AT
THE EXPENSE OF THOSE WHO HAVE CONTRACTED FOR IT A SUBSTANTIAL INCREMENT
TO THE NATURAL FLOW SUPPLY WHICH, AS WE HAVE SEEN, HAS BEEN
INSUFFICIENT TO GO AROUND.  IN WYOMING V. COLORADO, SUPRA, THE COURT
DID NOT APPORTION STORAGE WATER.  IT APPORTIONED NATURAL FLOW ONLY.  IT
TOOK INTO ACCOUNT WHEN IT MADE THAT APPORTIONMENT THE EFFECTS OF
STORAGE IN EQUALIZING NATURAL FLOW IN WYOMING.  WE THINK NO MORE SHOULD
BE DONE HERE TO EFFECT AN EQUITABLE APPORTIONMENT. 

WE HAVE ALREADY NOTED THE EXCEPTIONAL FEATURES OF THIS SECTION - THE
GREAT CONCENTRATION OF DEMAND IN A SHORT, COMPACT AREA, THE DISTINCTLY
INTERSTATE SCOPE AND CHARACTER OF WATER DISTRIBUTION, WITH WYOMING
APPROPRIATIONS SERVING NEBRASKA USES, WITH THE DEPENDENCE OF NEBRASKA
CANALS ON WYOMING DIVERSIONS, WITH THE JOINT USE OF CANALS TO SERVE
BOTH STATES.  THERE HAS BEEN NO EFFECTIVE INTERSTATE ADMINISTRATION. 
THE NEED TO TREAT THE SECTION AS AN ADMINISTRATIVE UNIT WITHOUT REGARD
TO STATE LINES SEEMS APPARENT.  THE SPECIAL MASTER CONCLUDED THAT THE
MOST FEASIBLE METHOD OF APPORTIONMENT WOULD BE A DISTRIBUTION OF
NATURAL FLOW ON A PERCENTAGE OF DAILY FLOW BASIS. 

IF A DIVISION OF FLOW WERE MADE ACCORDING TO TOTAL ACREAGE, TOTAL
REQUIREMENTS, OR ACREAGE OR REQUIREMENTS OF SENIOR AND JUNIOR
APPROPRIATORS, IT WOULD BE AS FOLLOWS:

      WYOMING    NEBRASKA 

TOTAL ACREAGE.....................................     27%
73% 

TOTAL REQUIREMENT IN ACRE FEET....................     23%
77% 

TOTAL SENIOR ACREAGE..............................     24%
76% 

TOTAL JUNIOR ACREAGE..............................     28%
72% 

TOTAL ACRE FEET REQUIREMENT, SENIOR ACREAGE.......     22%
78% 

TOTAL ACRE FEET REQUIREMENT, JUNIOR ACREAGE.......     23%
77% 

IF THE RIVER FLOW IS SEPARATED ACCORDING TO PRIORITY GROUPS, WATER
VALUES EXPRESSED IN SECOND FEET, AND IT IS ASSUMED THAT EACH CANAL
DIVERTS, IN ORDER OF PRIORITY, THE MAXIMUM LIMIT OF ONE SECOND FOOT FOR
EACH 70 ACRES, THE RESULT IS AS FOLLOWS: 

(CHART OMITTED) 

IT IS THUS APPARENT THAT WHETHER A DIVISION BE PROPORTIONED TO TOTAL
ACREAGE OR TO TOTAL DIVERSION REQUIREMENTS OR BE MADE ON A STRICT
PRIORITY BASIS, THERE WOULD BE NO SUBSTANTIAL DIFFERENCE EXCEPT AS TO
THE FIRST 1,500 SECOND FEET.  THE MAXIMUM DIFFERENCE AS TO OTHER WATER
WOULD BE 6%. 

WYOMING ARGUES FOR A MASS ALLOCATION, E.G. 705,000 ACRE FEET TO BE
ALLOCATED TO NEBRASKA FOR DIVERSION IN THIS SECTION DURING THE
IRRIGATION SEASON FOR NEBRASKA LANDS.  THE SPECIAL MASTER REJECTED THAT
METHOD.  HE CONCLUDED THAT IT WAS BASED ON AN ASSUMPTION OF
DEPENDABILITY OF FLOW WHICH WOULD BE BOUND TO RESULT IN INJUSTICE TO
ONE OR OTHER OF THE STATES; THAT IT APPORTIONED NOT ONLY NATURAL FLOW
BUT ALSO STORAGE WATER, THE DISPOSITION OF WHICH IS GOVERNED BY
CONTRACTS.  WE HAVE ALREADY CONSIDERED WYOMING'S EXCEPTION THAT STORAGE
WATER SHOULD HAVE BEEN INCLUDED IN THE ALLOCATION.  WE HAVE ALSO
CONSIDERED THE OTHER PHASES OF HER ARGUMENT IN FAVOR OF MASS
ALLOCATION.  WE REPEAT THAT THE INADEQUACY OF THE SUPPLY IS TOO CLEAR
TO PERMIT ADOPTION OF WYOMING'S FORMULA. 

THE UNITED STATES AND NEBRASKA CLAIM THAT THE ADOPTION OF A PRIORITY
SCHEDULE IN THIS SECTION WOULD ACHIEVE THE MOST EQUITABLE RESULTS.  ON
A 25-75 PERCENTAGE BASIS, NEBRASKA WOULD GET 75 SECOND FEET OUT OF THE
FIRST 100, TO NONE OF WHICH SHE WOULD BE ENTITLED IN TIMES OF AN
EXTREME LOW FLOW; WYOMING WOULD GET 225 SECOND FEET OUT OF THE NEXT 900
TO NONE OF WHICH SHE WOULD BE ENTITLED ON A PRIORITY BASIS.  A PRIORITY
BASIS WOULD ONLY COINCIDE WITH THE PERCENTAGE BASIS WHEN THE SUPPLY
AVAILABLE WAS 400 SECOND FEET OR 1,500 SECOND FEET.  IF THE SUPPLY WERE
800 SECOND FEET, A PRIORITY BASIS WOULD GIVE WYOMING 103 SECOND FEET
AND NEBRASKA THE REMAINING 697 SECOND FEET.  ON THE 25-75 PERCENTAGE
BASIS, WYOMING WOULD RECEIVE 200 SECOND FEET AND NEBRASKA 600 SECOND
FEET.  IT IS ARGUED THAT THE UNFAIRNESS OF THE PROPOSED APPORTIONMENT
IS DEMONSTRATED BY THE RECORD OF THE LOW FLOW OF THE RIVER IN THIS
THE FLOW NEVER ROSE ABOVE 1,500 SECOND FEET AFTER AUGUST 10TH.  IN THE
1934 SEASON IT ROSE ABOVE 1,500 SECOND FEET ONLY ONCE AFTER JUNE 10TH. 
AND IN THE 1936 SEASON IT WAS NOT OFTEN OVER 1,500 SECOND FEET.  IN
1932, 1934 AND 1936 THE DIRECT FLOW FREQUENTLY FELL BELOW 1,000 SECOND
FEET.  IN 1934 IT ROSE ABOVE 800 SECOND FEET FOR ONLY ABOUT 33 DAYS
DURING THE ENTIRE SEASON AND WAS BELOW 400 SECOND FEET ABOUT 34 DAYS. 
IN 1936 IT WAS BELOW 1,000 SECOND FEET FOR OVER 50 DAYS DURING THE
SEASON AND BELOW 800 SECOND FEET ABOUT 28 DAYS.  THE ARGUMENT IS THAT
FLUCTUATION IN THE RIGHTS TO WATER IS INHERENT IN THE PRIORITY SYSTEM
AND THAT THE PERCENTAGE APPORTIONMENT OF 25-75 IS TOO RIGID AND DOES
NOT GIVE SUFFICIENT RECOGNITION TO THAT FACT.  THE FREQUENCY WITH WHICH
THE FLOW HAS DROPPED BELOW 1,500 SECOND FEET DURING THE DROUGHT AND THE
INEQUITIES WHICH RESULT IF A STRICT PRIORITY APPORTIONMENT IS NOT MADE
AT SUCH TIMES ARE EMPHASIZED.    THE UNITED STATES AND NEBRASKA ADVANCE
AS THEIR PREFERRED ALTERNATIVE A STRICT PRIORITY APPORTIONMENT IN WHICH
THE RIGHTS OF EACH APPROPRIATOR WOULD BE FIXED.  WYOMING SAYS THAT MAY
NOT BE DONE SINCE THE APPROPRIATORS ARE NOT PARTIES TO THIS
PROCEEDING.  THE SPECIAL MASTER HAD SERIOUS DOUBTS ON THAT SCORE.  HE
ALSO FELT THAT AN INTERSTATE PRIORITY SCHEDULE FOR THIS SECTION, WHILE
NOT OPEN TO ALL THE OBJECTIONS WHICH WOULD BE PRESENT IF IT WERE
APPLIED TO THE WHOLE RIVER, WOULD HAVE OTHER OBJECTIONS.  THOSE WERE
(1) THAT IT WOULD DEPRIVE EACH STATE OF FULL FREEDOM OF INTRASTATE
ADMINISTRATION OF HER SHARE OF THE WATER AND (2) THAT IT WOULD BURDEN
THE DECREE WITH ADMINISTRATIVE DETAIL BEYOND WHAT IS NECESSARY TO AN
EQUITABLE APPORTIONMENT.  OUR JUDGMENT IS THAT THESE LATTER
CONSIDERATIONS WITHOUT MORE ARE SUFFICIENT JUSTIFICATION FOR REJECTION
OF THE STRICT PRIORITY ALLOCATION ADVANCED BY THE UNITED STATES AND
NEBRASKA.  AN EQUITABLE APPORTIONMENT MAY BE HAD WITHOUT FASHIONING A
DECREE OF THAT DETAIL.  AND GREATER ADMINISTRATIVE FLEXIBILITY MAY BE
ACHIEVED WITHIN THE RESPECTIVE STATES BY CHOICE OF ANOTHER
ALTERNATIVE. 

THE UNITED STATES AND NEBRASKA, HOWEVER, PRESS ON US A SECOND
ALTERNATIVE IN LIEU OF THE 25-75 PERCENTAGE BASIS RECOMMENDED BY THE
SPECIAL MASTER.  THEY SUGGEST THAT A SCHEDULE OF VARYING FLOWS OF THE
STREAM BE ADOPTED.  UNDER THAT THEORY THERE WOULD BE AN ALLOCATION ON A
PRIORITY BASIS TO EACH OF THE SEVEN "BLOCKS" OF SECOND FEET UP TO AND
INCLUDING 1,526 SECOND FEET.  ALL ABOVE 1,526 SECOND FEET WOULD BE
APPORTIONED ON A PERCENTAGE BASIS, E.G. 28 PER CENT TO WYOMING AND 72
PER CENT TO NEBRASKA. 

THAT ALTERNATIVE METHOD HAS MUCH TO RECOMMEND IT BECAUSE OF ITS
RATHER STRICT ADHERENCE TO THE PRINCIPLE OF PRIORITY DURING THE PERIODS
OF LOW FLOW.  AND IT MAY BE THAT IT WOULD INVOLVE NO GREATER
ADMINISTRATIVE BURDEN THAN THE FLAT PERCENTAGE METHOD.  FOR AS NEBRASKA
POINTS OUT, WHEN THE SUPPLY IS DETERMINED IT WOULD SEEM TO BE AS EASY
TO GIVE WYOMING THE FIRST 103 SECOND FEET AND NEBRASKA THE NEXT 924
SECOND FEET AS IT WOULD BE TO DIVIDE THE SECOND FEET OF FLOW BY
PERCENTAGES.  MOREOVER, THE PROPOSED ALTERNATIVE METHOD WOULD PRESERVE,
AS WELL AS THE FLAT PERCENTAGE METHOD, THE FULL CONTROL OF EACH STATE
OVER THE INTERNAL ADMINISTRATION OF HER WATER SUPPLY. 

WE ARE NOT SATISFIED, HOWEVER, THAT THE BLOCK SYSTEM OF ALLOCATION UP
TO AND INCLUDING 1,526 SECOND FEET IS THE MORE EQUITABLE UNDER THE
CIRCUMSTANCES OF THIS CASE.  THE COMBINED REQUIREMENT OF THE TRI-STATE
AND MITCHELL CANALS IS 924 SECOND FEET.  UNDER THE BLOCK SYSTEM OF
APPORTIONMENT THERE WOULD BE NO WATER FOR THE WYOMING CANALS IN GROUPS
3, 5, AND 7 OF THE FOREGOING TABLE EXCEPT SUCH STORAGE WATER AS WOULD
BE AVAILABLE TO THE LINGLE AND HILL DISTRICTS IN GROUP 5 UNDER THEIR
WARREN ACT CONTRACTS.  THE WYOMING APPROPRIATIONS IN THESE GROUPS ARE,
TO BE SURE, JUNIOR TO TRI-STATE AND MITCHELL.  BUT AS THE SPECIAL
MASTER POINTS OUT THOSE WYOMING APPROPRIATIONS, THOUGH JUNIOR,
REPRESENT OLD ESTABLISHED USES IN EXISTENCE FROM 40 TO OVER 50 YEARS. 
THEIR WATER SUPPLY WAS NOT CHALLENGED BY NEBRASKA ON BEHALF OF TRI
STATE AND MITCHELL UNTIL THE 1931-1940 DROUGHT CYCLE.  FOR EXAMPLE,
6,282 ACRES ARE SERVED BY TWO CANALS WHICH HAVE EXERCISED THEIR
APPROPRIATIVE RIGHTS WITHOUT INTERFERENCE FOR OVER 50 YEARS. 
FURTHERMORE, THE GREAT INCREASE IN RETURN FLOWS FROM THE NORTH PLATTE
PROJECT, WHICH WE DISCUSSED EARLIER, ARE RELEVANT HERE.  THOSE RETURN
FLOWS ARE A "WINDFALL" TO IRRIGATORS WHO ARE SO SITUATED ON THE RIVER
AS TO USE THEM YET WHO DO NOT HAVE STORAGE RIGHTS AND WHO SHARE NO PART
OF STORAGE COSTS.  AS WE HAVE SEEN, THESE RETURN FLOWS ARE SUBSTANTIAL
AND SHOULD BE TAKEN INTO ACCOUNT IN BALANCING THE EQUITIES BETWEEN
WYOMING AND NEBRASKA IN THIS SECTION OF THE RIVER.  MOREOVER, THE
STORAGE WATER RIGHTS OF THE LANDS INCLUDED IN GROUPS 1, 2, 3, AND 4 OF
THE FOREGOING TABLE BEAR UPON THIS PROBLEM.  EIGHTY-TWO PER CENT OF
THAT NEBRASKA ACREAGE HAS STORAGE WATER RIGHTS UNDER WARREN ACT
CONTRACTS; 7 PER CENT OF THAT WYOMING ACREAGE HAS STORAGE WATER
RIGHTS.  WHEN GROUPS 1 TO 7 ARE CONSIDERED, 82 PER CENT OF THE NEBRASKA
ACREAGE AND 47 PER CENT OF THE WYOMING ACREAGE HAVE STORAGE WATER
RIGHTS UNDER WARREN ACT CONTRACTS.  THE MITCHELL AND RAMSHORN CANALS
ARE THE ONLY NEBRASKA CANALS IN THE 7 GROUPS WHICH HAVE NO STORAGE
WATER RIGHTS.  AS WE HAVE SAID, STORAGE WATER, THOUGH NOT APPORTIONED,
MAY BE TAKEN INTO ACCOUNT IN DETERMINING EACH STATE'S EQUITABLE SHARE
OF THE NATURAL FLOW.  WYOMING V. COLORADO, SUPRA.  OUR PROBLEM IS NOT
TO DETERMINE WHAT ALLOCATION WOULD BE EQUITABLE AMONG THE CANALS IN
NEBRASKA OR AMONG THOSE IN WYOMING.  THAT IS A PROBLEM OF INTERNAL
ADMINISTRATION FOR EACH OF THE STATES.  OUR PROBLEM INVOLVES ONLY AN
APPRAISAL OF THE EQUITIES BETWEEN THE CLAIMANTS WHOM WYOMING REPRESENTS
ON THE ONE HAND AND THOSE REPRESENTED BY NEBRASKA ON THE OTHER.  WE
CONCLUDE THAT THE EARLY WYOMING USES, THE RETURN FLOWS, AND THE GREATER
STORAGE WATER RIGHTS WHICH NEBRASKA APPROPRIATORS HAVE IN THIS SECTION
AS COMPARED WITH THOSE OF WYOMING APPROPRIATORS TIP THE SCALES IN FAVOR
OF THE FLAT PERCENTAGE SYSTEM RECOMMENDED BY THE SPECIAL MASTER.  IT
SHOULD BE NOTED, MOREOVER, THAT THAT METHOD OF APPORTIONMENT, THOUGH
NOT STRICTLY ADHERING TO THE PRINCIPLE OF PRIORITY, GIVES IT GREAT
WEIGHT AND DOES NOT CAUSE AS GREAT A DISTORTION AS MIGHT APPEAR TO BE
THE CASE.  FOR ON THE FIRST 412 SECOND FEET OF FLOW THE ADVANTAGE WOULD
BE WITH NEBRASKA, SINCE 412 IS THE POINT AT WHICH 25 PER CENT OF THE
FLOW WOULD FIRST EQUAL THE 103 SECOND FEET WHICH ON A PRIORITY BASIS
WOULD GO TO WYOMING.  ON THE NEXT 1,114 SECOND FEET THE ADVANTAGE WOULD
BE WITH WYOMING, SINCE WYOMING'S SHARE ON A PRIORITY BASIS WOULD EQUAL
25 PER CENT OF THE FLOW ONLY AFTER THE TOTAL FLOW HAD REACHED 1,526
SECOND FEET. 

ACCORDINGLY, WE CONCLUDE THAT THE FLAT PERCENTAGE METHOD RECOMMENDED
BY THE SPECIAL MASTER IS THE MOST EQUITABLE METHOD OF APPORTIONMENT. 
WE HAVE CONSIDERED THE ARGUMENTS ADVANCED AGAINST THE APPORTIONMENT
BEING MADE ON THE BASIS OF 25-75 PER CENT.  BUT WE DO NOT BELIEVE THE
EVIDENCE WARRANTS A CHANGE IN THOSE PERCENTAGES. 

WYOMING URGES REDUCTIONS IN THE REQUIREMENTS FOR THE WHALEN TO TRI
STATE DAM SECTION OF THE RIVER.  AS WE HAVE SEEN, THE SEASONAL
REQUIREMENT, AS FOUND BY THE SPECIAL MASTER, IS 1,027,000 ACRE FEET. 
WYOMING THINKS THIS SHOULD BE REDUCED 85,000 ACRE FEET BY LOWERING THE
ESTIMATES FOR THE INTERSTATE, TRI-STATE AND NORTHPORT CANALS AND BY
ELIMINATING THE DEMAND OF RAMSHORN.  WYOMING WOULD REDUCE INTERSTATE BY
60,000 ACRE FEET - 15,000 ON ACCOUNT OF ALLEGED EXCESSIVE ACREAGE,
27,000 ON ACCOUNT OF POSSIBLE LARGE WINTER DIVERSIONS TO LAKE MINATARE
AND LAKE ALICE, 18,000 ON ACCOUNT OF WATER WHICH CAN BE PUMPED FROM
WELLS.  WE HAVE EXAMINED THE EVIDENCE ON THE ALLEGED EXCESSIVE ACREAGE
AND THE LAKE MINATARE AND LAKE ALICE DIVERSIONS AND ARE SATISFIED THAT
WYOMING HAS NOT MADE A SHOWING SUFFICIENT TO SUSTAIN HER EXCEPTIONS. 
IT WOULD SERVE NO USEFUL PURPOSE TO BURDEN THIS OPINION WITH THE
DETAILS.  AS RESPECTS THE DESIRED REDUCTION BECAUSE OF PUMPING LITTLE
NEED BE SAID.  IN 1940 INTERSTATE RECEIVED ONLY 45 PER CENT OF ITS
REQUIREMENTS.  WYOMING ESTIMATES THAT THE WATER PUMPED DURING THAT YEAR
WAS THE EQUIVALENT OF 18,000 ACRE FEET AT THE HEADGATE.  IT IS
DIFFICULT TO SEE THE EQUITY IN WYOMING'S DEMAND THAT INTERSTATE'S QUOTA
FROM THE RIVER BE REDUCED BY THAT AMOUNT.  THESE IRRIGATORS BORE THEIR
SHARE OF THE COST OF THE OPERATION AND MAINTENANCE OF PATHFINDER AND
GUERNSEY AND ALSO PAID THE COST OF THE PUMPING.  IT IS NOT JUST THAT
THEY FOREGO THE BENEFITS OF THE WATER FOR WHICH THEY ARE PAYING, GIVE
THE BENEFITS TO OTHERS, AND TAKE ON THE ADDITIONAL EXPENSE OF PUMPING. 

WE HAVE CAREFULLY CONSIDERED WYOMING'S CLAIM THAT EXCESSIVE ESTIMATES
HAVE BEEN ALLOWED TRI-STATE AND NORTHPORT.  AS RESPECTS TRI-STATE THERE
IS A SHARP CONFLICT OVER THE EVIDENCE CONCERNING THE ACREAGE SERVED. 
WHILE THE ACREAGE OF 52,300 ACRES COMPUTED BY THE SPECIAL MASTER IS
LIBERAL, IT HAS SUPPORT IN THE EVIDENCE AND WYOMING HAS NOT MADE A
SUFFICIENT SHOWING WHICH WARRANTS A REDUCTION FROM THAT FIGURE.  IT IS
TRUE THAT THE TRI-STATE ACREAGE EXPANDED AS THE RESULT OF WARREN ACT
CONTRACTS AND THAT A DEMAND ON NATURAL FLOW TO SUPPLY THAT AGGREGATE
ACREAGE ON ITS FACE SEEMS INEQUITABLE IN RELATION TO CANALS JUNIOR TO
TRI-STATE WHICH HAVE NO STORAGE RIGHTS.  BUT THE SPECIAL MASTER FOUND
THAT THE SUPPLY FOR THE WYOMING PRIVATE CANALS IN THIS SECTION HAD ALSO
BEEN ENHANCED THROUGH THE OPERATION OF PATHFINDER AND RETURN FLOWS
RESULTING FROM THE USE OF STORAGE WATER.  WE DO NOT BELIEVE SUFFICIENT
DISPARITY HAS BEEN SHOWN TO WARRANT AN ADJUSTMENT IN THE DECREE.  THE
SPECIAL MASTER ALLOWED 30 PER CENT FOR LOSS IN THE TRI-STATE CANAL. 
WYOMING CLAIMS THAT SHOULD BE REDUCED BECAUSE WATER INTERCEPTED IN THE
TRI-STATE CANAL FOR DELIVERY TO NORTHPORT DOES NOT SUFFER AS GREAT A
LOSS SINCE IT IS NOT CARRIED AS FAR.  BUT WYOMING'S WITNESS REACHED THE
SAME VIEW AS THE SPECIAL MASTER.  AND NO PROOF IS ADVANCED BY WYOMING
WHICH UNDERMINES THAT CONCLUSION.  MOREOVER, AN EXAMINATION OF THE
POINTS AT WHICH THE RETURN FLOWS ARE INTERCEPTED INDICATES THAT THE
ROOM FOR DIFFERENCE OF OPINION IS NOT AS GREAT AS WYOMING SUGGESTS. 

WYOMING'S CONTENTION THAT IN DETERMINING THE REQUIREMENTS OF THE
CANALS IN THIS SECTION RAMSHORN SHOULD NOT HAVE BEEN ALLOTTED 3,000
ACRE FEET PER ANNUM PRESENTS DIFFERENT PROBLEMS.  RAMSHORN RECEIVES ITS
SUPPLY THROUGH TRI-STATE.  THE SPECIAL MASTER IN COMPUTING THE
REQUIREMENTS OF TRI-STATE DEDUCTED THE RETURN FLOWS BELOW THE TRI-STATE
DAM WHICH WERE INTERCEPTED AND UTILIZED BY THE CANAL.  FN20  BUT THERE
APPARENTLY WAS NOT DEDUCTED THE ACCRETIONS FROM SPRING CREEK, A
TRIBUTARY WHICH FLOWS INTO THE RIVER BELOW THE WYOMING-NEBRASKA LINE
AND ABOVE TRI-STATE DAM.  FN21  THE AVERAGE RUN-OFF OF SPRING CREEK
FROM MAY TO SEPTEMBER DURING THE 1932-1940 PERIOD APPEARS TO HAVE BEEN
2,855 ACRE FEET.  WE AGREE THAT THIS ACCRETION SHOULD BE TAKEN INTO
ACCOUNT IN COMPUTING NEBRASKA'S REQUIREMENT OF WATER FROM WYOMING. 

THE SPECIAL MASTER FOUND THAT THE PRIORITIES OF THE CANALS IN THIS
FOOT FOR EACH 70 ACRES), AND THE ACRE FEET REQUIREMENT PER SEASON WERE
AS FOLLOWS: 

(CHART OMITTED) 

NEBRASKA CONTENDS THAT THE REQUIREMENTS OF TRI-STATE SHOULD BE
196,000 ACRE FEET AND THAT THE ALLOTMENT TO THE GERING-FT. LARAMIE
IRRIGATION DISTRICT SHOULD BE 169,165 ACRE FEET.  THE ARGUMENT FOR THE
INCREASE FOR TRI-STATE IS BASED ON THE THEORY THAT NEBRASKA HAS NOT
BEEN GIVEN IN THIS SECTION THE SAME MARGIN OF SAFETY WHICH WAS ALLOWED
WYOMING IN THE PATHFINDER-WHALEN SECTION OF THE RIVER.  BUT NEBRASKA
HAS NOT SHOWN THAT THIS ALLOWANCE WAS LESS ACCURATE THAN THE ONES MADE
TO WYOMING IN THE OTHER SECTION OF THE RIVER.  AND OUR READING OF THE
RECORD CONVINCES US THAT THE ALLOWANCES TO NEBRASKA ARE AS LIBERAL AS
THOSE TO WYOMING AND THAT AN INCREASE TO EITHER WOULD NOT BE JUSTIFIED
IN VIEW OF THE OVERAPPROPRIATION OF THE NATURAL FLOW.  THE ARGUMENT OF
AN INCREASE IN THE ALLOTMENT TO THE GERING-FT. LARAMIE IRRIGATION
DISTRICT POINTS OUT THAT IT RECEIVES THE SAME HEADGATE ALLOTMENT AS THE
GOSHEN IRRIGATION DISTRICT IN WYOMING WHICH SUPPLIES THE WYOMING LAND
UNDER THIS CANAL AND THAT THE LOWER AREA SHOULD BE GIVEN A
SUBSTANTIALLY LARGER HEADGATE ALLOTMENT TO COMPENSATE FOR CANAL LOSSES
IN THE UPPER SECTION OF THE CANAL.  THIS ARGUMENT, HOWEVER, IS NOT
SUPPORTED BY EVIDENCE.  THE SAME ALLOWANCE FOR THE LANDS IN EACH STATE
IS SUPPORTED BY THE RECORD.  FOR THERE IS EVIDENCE THAT THE DELIVERY TO
THE LANDS IN EACH STATE IN RELATION TO HEADGATE DIVERSIONS IS
SUBSTANTIALLY THE SAME. 

THE UNITED STATES CONTENDS THAT THE ALLOWANCE OF 65 SECOND FEET FOR
THE NORTHPORT CANAL IS ERROR.  AS THE SPECIAL MASTER INDICATED, THE 65
SECOND FEET ALLOWANCE IS THE AMOUNT NECESSARY TO SERVE THE ACREAGE
UNDER THAT CANAL WHICH WILL NOT BE SERVED BY RETURN FLOW INTERCEPTED
AND TRANSPORTED FOR NORTHPORT BY THE TRI-STATE CANAL.  BUT AS THE
UNITED STATES POINTS OUT, RETURN FLOW IS NOT STEADY DURING THE
IRRIGATION SEASON.  IT PRESENTED A STUDY SHOWING THAT IN THE SEVEN BEST
YEARS FROM 1930 TO 1940 THE AVERAGE RETURN FLOW INTERCEPTED BY TRI
STATE ON MAY 1 WAS ONLY 23 SECOND FEET, AVERAGED ONLY 43.9 SECOND FEET
FOR THE MONTH OF MAY, AVERAGED 135 SECOND FEET FOR THE MONTH OF JULY
AND DID NOT REACH ITS PEAK OF 200 SECOND FEET UNTIL SEPTEMBER 30, THE
END OF THE IRRIGATION SEASON.  ON THAT BASIS NORTHPORT COULD IRRIGATE
VERY LITTLE OF ITS ACREAGE FROM RETURN FLOW IN THE FIRST PART OF THE
IRRIGATION SEASON, THOUGH AT THE END OF THE SEASON IT COULD IRRIGATE
ALL.  THE SECOND FEET REQUIREMENT OF NORTHPORT IS 186.  WE CONCLUDE
THAT NORTHPORT SHOULD BE ENTITLED TO USE THAT AMOUNT OF FLOW DURING THE
SEASON TO MEET ITS REQUIREMENT OF 19,100 ACRE FEET.  THE 186 SECOND
FEET WILL, HOWEVER, BE SUBJECT TO REDUCTION BY THE AMOUNT OF RETURN
FLOW INTERCEPTED BY THE TRI-STATE CANAL FOR DELIVERY TO NORTHPORT AT
ANY GIVEN POINT OF TIME.    AS WE HAVE NOTED,  FN22  THE SPECIAL MASTER
RECOMMENDS THAT FOR THIS PART OF THE DECREE SEGREGATION OF NATURAL FLOW
AND STORAGE WATER BE DETERMINED IN ACCORDANCE WITH THE FORMULA AND DATA
APPEARING IN U.S. EXHIBIT 204A, UNLESS AND UNTIL NEBRASKA, WYOMING AND
THE UNITED STATES AGREE UPON A MODIFICATION OR UPON ANOTHER FORMULA. 
WYOMING CONTENDS THAT IT IS IMPOSSIBLE TO DETERMINE WHAT IS NATURAL
FLOW AND WHAT IS STORAGE WATER IN THE WHALEN-TRI-STATE DAM SECTION OF
THE RIVER FROM DAY TO DAY.  THE PROBLEM IS A PERPLEXING ONE.  PHYSICAL
SEGREGATION IS, OF COURSE, IMPOSSIBLE.  BUT ON THE BASIS OF THE RECORD
WE THINK THAT IT IS FEASIBLE TO DETERMINE WHAT PORTION OF THE FLOW AT A
GIVEN POINT IS STORAGE WATER AND WHAT PORTION IS NATURAL FLOW. 
PRECISION IS CONCEDEDLY IMPOSSIBLE.  BUT APPROXIMATIONS ARE POSSIBLE;
AND THEY ARE SUFFICIENT FOR THE ADMINISTRATION OF THE RIVER UNDER THE
DECREE.  IT IS TRUE, AS WYOMING SAYS, THAT IN ORDER TO SEGREGATE
STORAGE WATER AND NATURAL FLOW, LOSSES BY EVAPORATION MUST BE
DETERMINED AND, SINCE THOSE LOSSES VARY FROM SECTION TO SECTION, THE
NUMBER OF DAYS REQUIRED FOR THE WATER TO TRAVEL FROM ONE POINT TO
ANOTHER MUST BE KNOWN.  THE TIME REQUIRED FOR WATER TO TRAVEL FROM
ALCOVA TO NEBRASKA VARIES UNDER DIFFERENT CONDITIONS.  AS AN EXPERT OF
THE BUREAU OF RECLAMATION TESTIFIED, SINCE THAT TIME INTERVAL VARIES
WITH THE AMOUNT OF WATER FLOWING IN THE RIVER, IT IS DIFFICULT TO MAKE
A FORMULA WHICH REFLECTS IT.  INDEED U.S. EXHIBIT 204A DOES NOT INCLUDE
THE TIME LAG ELEMENT AND THEREFORE DOES NOT SUPPLY ALL THE DATA
NECESSARY IN THE SEGREGATION OF NATURAL FLOW AND STORAGE WATER AT
WHALEN.  BUT THIS EXPERT TESTIFIED THAT ALTHOUGH IT HAD NOT BEEN
POSSIBLE TO REFLECT THE TIME INTERVAL IN A FORMULA, AN ADJUSTMENT FOR
IT WAS MADE: 

"Q. - IN MAKING THIS TIME INTERVAL CORRECTION, YOU USE YOUR BEST
JUDGMENT, BASED UPON YOUR EXPERIENCE ON THE RIVER AND YOUR OBSERVATION
OF WHAT CONDITIONS WERE IN THE RIVER, AND, USING THAT JUDGMENT, YOU
ARRIVE AT THE FIGURE FOR THIS TIME INTERVAL CORRECTION, DO YOU NOT? 

"A. - YES, IT IS A MORE OR LESS ARBITRARY CORRECTION  ..." 

BUT WHILE THE ADJUSTMENT IS AN ARBITRARY ONE, CORRECTIONS CAN BE MADE
AND ARE MADE SO THAT OVER A SHORT PERIOD OF DAYS THE SEGREGATION IS
BALANCED.  FN23  AND THE EVIDENCE IS THAT THOUGH THIS ADJUSTMENT IS
ONLY APPROXIMATE AND LACKS PRECISION, IT IS SUFFICIENTLY ACCURATE FOR
ADMINISTRATIVE PURPOSES.  FOR THIS EXPERT OF THE BUREAU OF RECLAMATION
TESTIFIED: 

"Q. - BUT, GIVING CONSIDERATION TO ALL OF THESE FACTORS, THERE ISN'T
ANY WAY OF MAKING ANY ACCURATE DETERMINATION, DAY TO DAY, OF THE ACTUAL
BALANCE OF NATURAL FLOW AND STORAGE AT EITHER GUERNSEY OR THE NEBRASKA
WYOMING LINE, IS THERE? 

"A. - THAT TERM 'ACCURATE' DEPENDS UPON WHAT IS ACCURATE. 

"Q. - I MEAN THIS, MR. GLEASON - IF THERE IS 5,000 SECOND FEET OF
WATER ARRIVING AT GUERNSEY, IS THERE ANY WAY THAT YOU CAN CORRECTLY AND
ACCURATELY DETERMINE THAT 2,500, FOR INSTANCE, IS STORAGE AND THAT
2,500 IS NATURAL FLOW? 

"A. - OH, I BELIEVE THAT WE ARRIVE AT A FIGURE THAT IS CORRECT ENOUGH
FOR ADMINISTRATIVE PURPOSES.  IT MUST BE REALIZED THAT AN ERROR OF TEN
SECOND FEET IN FIVE HUNDRED IS INEVITABLE.  ALL HYDROGRAPHIC RECORDS
ARE INACCURATE TO A VARYING EXTENT, AND THE COMPUTATIONS BASED UPON
THEM, AND BASED UPON ASSUMPTIONS AS TO EVAPORATION IN PREPARING
FORMULAE, SO THE JUDGMENT OF THE MEN DOING IT ENTERS INTO THE FINAL
FIGURE, AND THE MOST WE CAN HOPE TO DO IS TO ARRIVE AT DAILY FIGURES
WHICH, SUMMED UP OVER A PERIOD OF TIME, WILL MORE CLOSELY APPROXIMATE
THE ACCURATE FIGURES THAN THE DAILY FIGURES TAKEN INDIVIDUALLY DO." 

NO OTHER EXPERT TESTIMONY UNDERMINES THAT CONCLUSION. 

WE CANNOT CONCLUDE THAT THE SEGREGATION OF NATURAL FLOW AND STORAGE
WATER LACKS FEASIBILITY.  IF A COMPREHENSIVE FORMULA CAN BE AGREED
UPON, IT MAY LATER BE INCORPORATED IN THE DECREE. 

GAUGING STATIONS AND MEASURING DEVICES.  THE SPECIAL MASTER
RECOMMENDS THAT SUCH ADDITIONAL GAUGING STATIONS AND MEASURING DEVICES
AT OR NEAR THE WYOMING-NEBRASKA STATE LINE BE INSTALLED AS ARE
NECESSARY FOR EFFECTING THE APPORTIONMENT IN THE WHALEN-TRI-STATE DAM
JOINT AND EQUAL EXPENSE OF NEBRASKA AND WYOMING.  THE PARTIES TAKE NO
EXCEPTION TO THIS RECOMMENDATION AND IT WILL BE ADOPTED. 

TRI-STATE DAM TO BRIDGEPORT, NEB.  THE SPECIAL MASTER EXCLUDED THIS
CANALS ARE ADEQUATELY SUPPLIED FROM RETURN FLOWS AND OTHER LOCAL
SOURCES.  NEBRASKA TAKES EXCEPTION TO THAT EXCLUSION.  SHE POINTS OUT
THAT OF THE 12 CANALS IN THIS SECTION WHICH BEAR ON OUR PROBLEM, TWO
HAVE WARREN ACT CONTRACTS.  NINE ARE SENIOR TO ALL WYOMING
APPROPRIATIONS EXCEPT THE FIRST 103 SECOND FEET FOR THE OLDEST
APPROPRIATORS; ONLY ABOUT 200 SECOND FEET OF WYOMING APPROPRIATIONS ARE
SENIOR TO THESE NEBRASKA APPROPRIATIONS.  NEBRASKA SAYS THAT FOUR OF
THESE CANALS HAD INSUFFICIENT SUPPLIES DURING THE THREE DRY YEARS OF
1934, 1936 AND 1940.  AND SHE POINTS OUT THAT DURING THE SAME PERIODS
THE NINE WYOMING CANALS, SERVING SUBSTANTIALLY THE SAME KINDS OF AREAS,
HAD EXCESSIVE DIVERSIONS.  BUT IT APPEARS THAT OTHER NEBRASKA CANALS IN
THE SECTION HAD EXCESSIVE DIVERSIONS DURING THE SAME YEARS.  AND THE
RECORD SUPPORTS THE CONCLUSION OF THE SPECIAL MASTER THAT SEASONAL
SUPPLIES ARE ADEQUATE.  HE EXPLAINED THE SHORTAGES AS DUE (1) TO LACK
OF COINCIDENCE BETWEEN THE TIME AND QUANTITY OF SUPPLIES AND THE TIME
AND EXTENT OF NEEDS; (2) THE EXCESSIVE DIVERSIONS BY SOME CANALS AT THE
EXPENSE OF OTHERS; (3) THE WITHDRAWAL OF WATER AS A MATTER OF PRIORITY
TO SUPPLY SENIOR CANALS IN THE LOWER SECTION.  THE LATTER HE THOUGHT
WOULD BE LARGELY ELIMINATED DUE TO THE CONSTRUCTION OF THE KINGSLEY AND
SUTHERLAND RESERVOIRS. 

NEBRASKA HAS NOT CONVINCED US THAT THERE IS ERROR IN THIS
CONCLUSION.  TWO OF THE CANALS HAVE WARREN ACT CONTRACTS.  IN THE 1931
1940 PERIOD WHILE THERE WAS NO LIMITATION ON WYOMING USES FOR
NEBRASKA'S BENEFIT, THE MEAN DIVERTIBLE FLOW PASSING TRI-STATE DAM FOR
THE MAY-SEPTEMBER PERIOD WAS 81,700 ACRE FEET.  THIS IS IN ADDITION TO
THE LOCAL SUPPLIES WHICH EVEN DURING THE DROUGHT PERIOD WERE ADEQUATE
TO MEET THE NEEDS OF THE CANALS WITHOUT CALLING UPON UP-RIVER WATER. 

THIS SECTION WILL ACCORDINGLY NOT BE INCLUDED IN THE APPORTIONMENT. 

MODIFICATION OF THE DECREE.  THE SPECIAL MASTER RECOMMENDS THAT THE
DECREE PERMIT ANY OF THE PARTIES TO APPLY AT THE FOOT OF THE DECREE FOR
ITS AMENDMENT OR FOR FURTHER RELIEF, AND THAT THE COURT RETAIN
JURISDICTION OF THE SUIT FOR THE PURPOSE OF ANY ORDER, DIRECTION, OR
MODIFICATION OF THE DECREE OR ANY SUPPLEMENTARY DECREE THAT MAY AT ANY
TIME BE DEEMED PROPER IN RELATION TO THE SUBJECT MATTER IN
CONTROVERSY.  COLORADO AND WYOMING OBJECT TO THIS PROVISION. 
COLORADO'S OBJECTION THAT THIS PROVISION PLACES ADMINISTRATIVE BURDENS
ON THE COURT WHICH WE SHOULD NOT ASSUME HAS BEEN SUFFICIENTLY
ANSWERED.  WYOMING'S OBJECTION IS IN THE MAIN THAT A COMPLETE EQUITABLE
APPORTIONMENT SHOULD BE MADE, LEAVING OPEN FOR FUTURE CONSIDERATION
ONLY THE QUESTION OF ADDITIONAL DEVELOPMENT ABOVE WHALEN IN WYOMING AND
COLORADO.  BUT OUR REJECTION OF THE PROPOSAL FOR A MASS ALLOCATION
DISPOSES OF THIS OBJECTION.  AND WE DO NOT THINK IT APPROPRIATE TO BAR,
AS WYOMING SUGGESTS, APPLICATIONS FOR MODIFICATIONS WITHIN A PERIOD OF
TEN YEARS, OR ALTERNATELY FIVE YEARS, FROM ENTRY OF THE DECREE. 

ORDINARY AND USUAL DOMESTIC AND MUNICIPAL PURPOSES.  THE SPECIAL
MASTER REPORTS THAT THE PARTIES ARE AGREED THAT THERE SHOULD BE NO
RESTRICTION UPON THE DIVERSION FROM THE NORTH PLATTE RIVER IN COLORADO
OR WYOMING OF WATER FOR ORDINARY AND USUAL DOMESTIC AND MUNICIPAL
PURPOSES AND CONSUMPTION AND THAT NOTHING IN THE RECOMMENDED DECREE IS
INTENDED TO OR WILL INTERFERE WITH SUCH DIVERSIONS AND USES.  WYOMING
SUGGESTS THAT THAT PROVISION COVER NOT ONLY DIVERSIONS FROM THE NORTH
PLATTE RIVER IN COLORADO AND WYOMING BUT ALSO DIVERSION FROM ITS
TRIBUTARIES IN THOSE STATES AND THAT STOCK-WATERING PURPOSES BE
EXCEPTED AS WELL AS ORDINARY AND USUAL DOMESTIC AND MUNICIPAL
PURPOSES.  WE THINK THOSE SUGGESTIONS ARE APPROPRIATE ONES.  THEY WILL
BE ADOPTED. 

RECORDS OF IRRIGATION AND STORAGE.  THE DECREE, AS HAS BEEN SEEN,
WILL LIMIT WYOMING AND COLORADO TO THE IRRIGATION OF STATED ACREAGES
ABOVE PATHFINDER AND TO STORAGE OF MORE THAN STATED AMOUNTS OF WATER IN
THAT REGION.  THE UNITED STATES INSISTS THAT THE DECREE SHOULD ALSO
REQUIRE WYOMING AND COLORADO TO MAINTAIN COMPLETE AND ACCURATE RECORDS
OF IRRIGATION AND STORAGE OF WATER IN THOSE AREAS AND TO KEEP THEM
AVAILABLE.  WYOMING SAYS THAT IS AN UNNECESSARY PROVISION.  COLORADO
SAYS THAT ITS OFFICIALS ALREADY HAVE SUCH DUTIES.  BUT THE RECORD IN
THIS CASE REFLECTS THE NEED FOR COMPLETE AND ACCURATE RECORDS.  AND IT
SEEMS TO US DESIRABLE THAT SUCH RECORDS BE KEPT.  OTHERWISE, NEITHER
THE STATES NOR THE OTHER INTERESTED PARTIES CAN KNOW IF THE ACREAGE AND
STORAGE LIMITATIONS ARE BEING MET.  CONTINUOUS RECORDS WILL SIMPLIFY
THE PROGRAM OF ADMINISTRATION.  THE PROPOSAL IS ADOPTED. 

IMPORTATION OF WATER.  THE DECREE WHICH WE ENTER APPORTIONS ONLY THE
NATURAL FLOW OF THE NORTH PLATTE RIVER.  THE UNITED STATES SUGGESTS
THAT THE DECREE EXPLICITLY STATE THAT IT DOES NOT COVER ANY ADDITIONAL
SUPPLY OF WATER WHICH MAY BE IMPORTED INTO THIS BASIN FROM THE
WATERSHED OF AN ENTIRELY SEPARATE STREAM AND WHICH PRESENTLY DOES NOT
FLOW INTO THE BASIN.  TO REMOVE ANY POSSIBLE DOUBT ON THAT SCORE THE
DECREE WILL CONTAIN A PROVISION THAT IT DOES NOT AND WILL NOT AFFECT
THE USE OF SUCH ADDITIONAL SUPPLIES OF WATER OR THE RETURN FLOW FROM
IT.  ALL QUESTIONS CONCERNING THE APPORTIONMENT OF SUCH WATER WILL
AWAIT THE EVENT. 

THE PARTIES MAY WITHIN NINETY DAYS SUBMIT THE FORM OF DECREE TO CARRY
THIS OPINION INTO EFFECT.  COSTS WILL BE APPORTIONED AND PAID AS
FOLLOWS: THE STATE OF COLORADO, ONE-FIFTH; THE STATE OF WYOMING, TWO
FIFTHS; AND THE STATE OF NEBRASKA, TWO-FIFTHS.  IT IS SO ORDERED. 

FN1  THE WATERS OF THE SOUTH PLATTE AND THE LARAMIE WERE PREVIOUSLY
APPORTIONED - THE FORMER BETWEEN COLORADO AND NEBRASKA BY COMPACT (44
STAT. 195), THE LATTER BETWEEN COLORADO AND WYOMING BY DECREE.  WYOMING
V. COLORADO, 259 U.S. 496.  THOSE APPORTIONMENTS ARE IN NO WAY AFFECTED
BY THE DECREE IN THIS CASE. 

FN2  APPROXIMATE LENGTH OF THE NORTH PLATTE: 

COLORADO..................................  70 MILES 

WYOMING................................... 435 MILES 

NEBRASKA (TO NORTH PLATTE)................ 180 MILES 

DRAINAGE AREA OF THE NORTH PLATTE, EXCLUSIVE OF THE LARAMIE RIVER: 

COLORADO ..................... 1,630 SQ. MI.   6% 

WYOMING ......................17,540 SQ. MI.  63% 

NEBRASKA ..................... 8,730 SQ. MI.  31%

                            ----------------------- 

TOTAL ........................27,900 SQ. MI. 

FN3 THE AVERAGE ANNUAL CONTRIBUTIONS FROM 1895 TO 1939 TO THE WATER
OF THE NORTH PLATTE WERE COMPUTED BY THE SPECIAL MASTER AS FOLLOWS: 

NORTH PARK..............................   635,100 ACRE FEET 

WYOMING STATE LINE TO PATHFINDER........ 1,059,240 ACRE FEET 

PATHFINDER TO WHALEN....................   390,000 ACRE FEET 

WHALEN TO TRI-STATE DAM.................   281,940 ACRE FEET 

TRI-STATE DAM TO KINGSLEY............... 1,027,890 ACRE FEET 

KINGSLEY TO GRAND ISLAND................ 308,200 ACRE FEET 

BY STATES THE CONTRIBUTIONS WERE AS FOLLOWS: 

COLORADO............................   819,220 ACRE FEET 21% 

WYOMING............................. 1,731,600 ACRE FEET 45% 

NEBRASKA............................ 1,336,090 ACRE FEET 34% 

FN4

                 COLORADO    WYOMING  NEBRASKA*      TOTAL 

1880------------        200     11,000                   11,200 

1890............     44,500 86,000        15,300    145,800 

1900............     83,500    169,100       105,690    358,290 

1910............    113,500    224,500       192,150    530,150 

1920------------    129,140    265,375       306,930    701,445 

1930------------    130,540    307,105       371,300    808,945 

1939------------    131,810    325,720       383,355    840,885 

*NOT INCLUDING ABOUT 65,000 ACRES NOW IRRIGATED FROM THE PLATTE RIVER
BETWEEN NORTH PLATTE AND KEARNEY, NEB. 

FN5  OF THE 174,650 ACRE INCREASE SINCE 1910, 104,000 ACRES ARE NORTH
PLATTE PROJECT LANDS. 

FN6  WHICH THE SPECIAL MASTER FOUND TO BE THE BEST SINGLE INDEX ON
THE RIVER DUE TO THE FACT THAT THE MAIN ACCRETIONS OF COLORADO AND
WYOMING ARE ALREADY IN THE RIVER AND THE NATURAL FLOW IS NOT
APPRECIABLY DISTORTED BY STORAGE RELEASES AS IT IS BELOW PATHFINDER. 

FN7

YEAR   ACRE FEET   YEAR   ACRE FEET   YEAR   ACRE FEET 

1904----1,262,000  1917----2,399,400  1930----1,072,800

05----1,159,400    18----1,486,100    31----  706,300

06....1,351,000    19....  859,700    32....1,506,600

07....1,851,100  1920....1,870,100    33....1,149,500

08....  918,600    21....1,782,000 34....  382,200

09....2,381,800    22....1,148,200    35....  696,200 

1910----  918,100    23----1,500,800    36----1,045,600

11----1,123,400    24----1,489,900    37----1,130,600

12----1,820,500    25----1,244,700    38----1,334,900

13----1,265,000    26----1,776,500    39----  698,200

14----1,550,900    27----1,456,200  1940----  569,800

15----  900,200    28----1,725,400

16----1,253,400    29----1,902,700 

FN8  CONSUMPTIVE USE REPRESENTS THE DIFFERENCE BETWEEN WATER DIVERTED
AND WATER WHICH RETURNS TO THE STREAM AFTER USE FOR IRRIGATION. 

FN9  THE EXCESS OR DEFICIENCY FOR EACH OF THOSE YEARS IS INDICATED BY
THE FOLLOWING: 

1931.......... 113,300  1936..........   5,480 

1932.......... 352,500  1937.......... 225,350    1933..........
465,100  1938.......... 143,150 

1934..........-515,400  1939..........  66,050 

1935..........-157,000  1940..........-382,080 

FN10  OF THIS 90 PER CENT, 68 PER CENT ARE PROJECT LANDS AND 32 PER
CENT HAVE WARREN ACT CONTRACTS. 

FN11  THE RIGHT OF THE UNITED STATES AS STORER AND CARRIER IS NOT
NECESSARILY EXHAUSTED WHEN IT DELIVERS THE WATER TO GRANTEES UNDER ITS
IRRIGATION PROJECTS.  THUS IN IDE V. UNITED STATES, 263 U.S. 497 THE
RIGHT OF THE UNITED STATES WAS HELD TO EXTEND TO WATER WHICH RESULTED
FROM SEEPAGE FROM THE IRRIGATED LANDS UNDER ITS PROJECT AND WHICH WAS
NOT SUSCEPTIBLE OF PRIVATE APPROPRIATION UNDER LOCAL LAW. 

FN12  KANSAS V. COLORADO, 206 U.S. 46; MISSOURI V. ILLINOIS, 180 U.S.
208. 

FN13  THAT CONTROVERSY BETWEEN THE STATES IS PARTLY REFLECTED IN
STATE V. MITCHELL IRRIGATION DISTRICT, 129 NEB. 586, 262 N.W. 543, AND
MITCHELL IRRIGATION DISTRICT V. WHITING, 59 WYO. 52, 136 P.2D 502. 

FN14  NEBRASKA OBJECTS TO THE MARGIN OF SAFETY PROVIDED ABOVE ACTUAL
EXISTING USES.  BUT WE DO NOT BELIEVE THAT THE MARGIN ALLOWED IS UNJUST
UNDER ALL THE CIRCUMSTANCES OF THE CASE. 

FN15  IN ACCORD WITH COLORADO'S SUGGESTION THE DECREE WILL EMBRACE
JACKSON COUNTY AND NOT NORTH PARK SINCE THE TWO ARE NOT COTERMINOUS AND
SINCE JACKSON COUNTY IS ENTIRELY WITHIN THE RIVER BASIN AND INCLUDES
AREAS NOT LOCATED IN NORTH PARK. 

FN16  WHETHER, AS BETWEEN THE UNITED STATES TOGETHER WITH THE
IRRIGATION PROJECTS SPONSORED BY IT ON THE ONE HAND AND THE FARMERS
IRRIGATION DISTRICT ON THE OTHER, THE UNITED STATES IS ESTOPPED BY
UNITED STATES V. TILLEY, 124 F.2D 850, TO DENY THE AMOUNT OF ACREAGE
COVERED BY THE WARREN ACT CONTRACT WITH THE DISTRICT IS NOT RELEVANT
HERE. 

FN17  THUS THE CONTRACT WITH THE GERING IRRIGATION DISTRICT
PROVIDES: 

"THE UNITED STATES WILL IMPOUND, AND STORE WATER IN THE PATHFINDER
RESERVOIR, OR ELSEWHERE AND RELEASE THE SAME INTO THE NORTH PLATTE
RIVER AT SUCH TIMES AND IN SUFFICIENT QUANTITIES TO DELIVER, AND DOES
HEREBY AGREE TO DELIVER AT THE WYOMING-NEBRASKA STATE LINE FOR THE USE
OF SAID DISTRICT AN AMOUNT OF WATER WHICH WILL, WITH ALL THE WATER THE
LANDS OF THE DISTRICT MAY BE ENTITLED TO BY REASON OF ANY
APPROPRIATIONS AND ALL WATER NOT OTHERWISE APPROPRIATED, INCLUDING
DRAINAGE AND SEEPAGE WATERS DEVELOPED BY THE UNITED STATES, AGGREGATE A
FLOW OF WATER AS FOLLOWS: (HERE FOLLOWS THE DELIVERY SCHEDULE); THE
TOTAL AMOUNT TO BE SO DELIVERED BEING APPROXIMATELY 35,500 ACRE FEET." 

FN18  THE CONTRACT PROVIDES: 

"IT IS EXPRESSLY AGREED THAT THE DEVELOPMENT OF THE CASPER-ALCOVA
PROJECT AND THE IRRIGATION OF LANDS UNDER IT IS IN NO WAY TO IMPAIR THE
WATER RIGHTS FOR THE FEDERAL NORTH PLATTE RECLAMATION PROJECT IN
WYOMING AND NEBRASKA, AND THE SAID NORTH PLATTE PROJECT, AND WARREN ACT
CONTRACTORS UNDER IT ARE TO RECEIVE A WATER SUPPLY OF THE SAME QUANTITY
AS WOULD HAVE BEEN RECEIVED IF THE CASPER-ALCOVA PROJECT HAD NOT BEEN
CONSTRUCTED AND OPERATED." 

FN19  HE LIKEWISE RECOMMENDS (1) THAT IN THE APPORTIONMENT OF WATER
IN THIS SECTION THE FLOW FOR EACH DAY, UNTIL ASCERTAINABLE, SHALL BE
ASSUMED TO BE THE SAME AS THAT OF THE PRECEDING DAY AS SHOWN BY THE
MEASUREMENTS AND COMPUTATIONS FOR THAT DAY; AND (2) THAT IN THE
SEGREGATION OF NATURAL FLOW AND STORAGE WATER, RESERVOIR EVAPORATION
AND TRANSPORTATION LOSSES SHALL BE DETERMINED IN ACCORDANCE WITH THE
FORMULA AND DATA WHICH APPEAR IN THE RECORD IDENTIFIED AS UNITED STATES
EXHIBIT 204A, UNLESS AND UNTIL NEBRASKA, WYOMING, AND THE UNITED STATES
MAY AGREE UPON A MODIFICATION THEREOF OR UPON ANOTHER FORMULA.  WE
DISCUSS THE SECOND OF THESE RECOMMENDATIONS LATER IN THIS OPINION.  WE
ADOPT BOTH OF THEM. 

FN20  THEY ARE SHOWN ON WYOMING'S EXHIBIT NO. 149. 

FN21  THEY ARE SHOWN ON WYOMING'S EXHIBIT NO. 150. 

FN22  NOTE 19, SUPRA. 

FN23  THIS EXPERT FOR THE BUREAU OF RECLAMATION, C. F. GLEASON,
TESTIFIED: 

"Q. - IF THERE IS AN ERROR IN A SERIES OF FOUR OR FIVE DAYS AS TO THE
AMOUNT OF NATURAL FLOW IN RELATION TO THE STORAGE, THAT MIGHT MEAN THAT
A NATURAL FLOW CANAL MIGHT GET MORE OR MIGHT GET LESS THAN ITS DUE
ALLOTMENT OF WATER, ISN'T THAT RIGHT? 

"A. - THAT MIGHT BE TRUE OVER A VERY SHORT PERIOD.  HOWEVER, THE
CORRECTIONS MADE WHICH ARE SHOWN IN THE WORK SHEETS AS PLUS OR MINUS
STORAGE IN THAT SECTION OF THE RIVER ARE MADE TO BALANCE OUT IN SUCH A
WAY THAT OVER THE SEASON THERE IS NO ROBBERY OF NATURAL FLOW OR STORAGE
AND NO PARTICULAR ACCRUAL TO IT AS A RESULT OF THIS METHOD OF
CALCULATION. 

"Q. - THAT IS, AN ATTEMPT IS MADE TO BALANCE OUT, ACCORDING TO YOUR
JUDGMENT OF WHAT OUGHT TO BE THE AMOUNT OF NATURAL FLOW AND STORAGE AT
THE STATE LINE, IS THAT RIGHT? 

"A. - IT IS NOT BALANCED OUT ACCORDING TO JUDGMENT.  IT IS BALANCED
OUT MATHEMATICALLY. 

"Q. - BUT IT IS BALANCED OUT MATHEMATICALLY UPON WHAT FACTORS? 

"A. - UPON THE FACTORS OF PLUS AND MINUS CHANNEL STORAGE, IF YOU WANT
TO USE THAT TERM.  IF WE PLUS STORAGE INTO THE CHANNEL SOME DAYS, WE
MINUS THE TOTAL OF THE SAME AMOUNT LATER ON TO MAKE IT BALANCE OUT. 

"Q. - THAT IS TO SAY, AND YOU JUST TESTIFIED IN THAT WAY, THAT YOUR
BALANCING OUT OF THESE PLUS AND MINUS QUANTITIES THAT YOU PUT IN IS
BASED UPON YOUR JUDGMENT OF HOW MUCH NATURAL FLOW AND STORAGE WATER IS
AT THE STATE LINE, IN VIEW OF THE CONDITIONS AND THE QUANTITIES OF
NATURAL FLOW AND STORAGE AT ALCOVA? 

"A. - YES, THAT IS CORRECT. 

"Q. - ACCORDINGLY, THE PLUS OR MINUS CORRECTIONS ARE BASED UPON THIS
MATTER OF JUDGMENT. 

"A. - YES." 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE ROBERTS. 

I AM UNABLE TO AGREE WITH THE COURT'S DISPOSITION OF THIS CASE.  I
THINK THE DECISION CONSTITUTES A DEPARTURE FROM PRINCIPLES LONG
ESTABLISHED AND OBSERVED BY THE COURT IN LITIGATIONS BETWEEN THE STATES
OF THE UNION, AND ADOPTS A COURSE DIAMETRICALLY OPPOSED TO OUR MOST
RECENT ADJUDICATION IN THE FIELD OF INTERSTATE WATERS.  FN1  WITHOUT
PROOF OF ACTUAL DAMAGE IN THE PAST, OR OF ANY THREAT OF SUBSTANTIAL
DAMAGE IN THE NEAR FUTURE, THE COURT NOW UNDERTAKES TO ASSUME
JURISDICTION OVER THREE QUASI-SOVEREIGN STATES AND TO SUPERVISE, FOR
ALL TIME, THEIR RESPECTIVE USES OF AN INTERSTATE STREAM ON THE BASIS OF
PAST USE, INCLUDING, OVER A TEN-YEAR TERM, THE GREATEST DROUGHT IN THE
HISTORY OF THE REGION, ADMITTING, IN EFFECT, THAT ITS ALLOCATION OF
PRIVILEGES TO THE RESPECTIVE STATES WILL HAVE TO BE REVISED AND
MODIFIED WHEN THAT DROUGHT CEASES AND MORE WATER BECOMES AVAILABLE FOR
BENEFICIAL USE.  I DOUBT IF, IN SUCH INTERSTATE CONTROVERSIES, ANY
STATE IS EVER ENTITLED TO A DECLARATORY JUDGMENT FROM THIS COURT.  I AM
SURE THAT, ON THE SHOWING IN THE PRESENT RECORD, NONE OF THE STATES IS
ENTITLED TO A DECLARATION OF RIGHTS.  THE PRECEDENT NOW MADE WILL ARISE
TO PLAGUE THIS COURT NOT ONLY IN THE PRESENT SUIT BUT IN OTHERS.  THE
FUTURE WILL DEMONSTRATE, IN MY JUDGMENT, HOW WRONG IT IS FOR THIS COURT
TO ATTEMPT TO BECOME A CONTINUING UMPIRE OR A STANDING MASTER TO WHOM
THE PARTIES MUST GO AT INTERVALS FOR LEAVE TO DO WHAT, IN THEIR
SOVEREIGN RIGHT, THEY SHOULD BE ABLE TO DO WITHOUT LET OR HINDRANCE,
PROVIDED ONLY THAT THEY WORK NO SUBSTANTIAL DAMAGE TO THEIR NEIGHBORS. 
IN SUCH CONTROVERSIES THE JUDICIAL POWER SHOULD BE FIRMLY EXERCISED
UPON PROPER OCCASION, BUT AS FIRMLY WITHHELD UNLESS THE CIRCUMSTANCES
PLAINLY DEMAND THE INTERVENTION OF THE COURT.  SUCH MUTUAL
ACCOMMODATIONS FOR THE FUTURE AS NEBRASKA AND WYOMING DESIRE SHOULD BE
ARRANGED BY INTERSTATE COMPACT, NOT BY LITIGATION. 

NEBRASKA INITIATED THIS SUIT ON THE THEORY THAT WYOMING WAS DIVERTING
WATER UNDER WYOMING APPROPRIATIONS JUNIOR TO NEBRASKA APPROPRIATIONS,
WHICH, AT THE TIME, WERE EITHER RECEIVING NO WATER OR AN INSUFFICIENT
SUPPLY.  NEBRASKA, IN SUPPORT OF ITS POSITION, ATTEMPTED TO PROVE THE
WORTH OF AN ACRE-FOOT OF WATER FOR IRRIGATION.  BUT, OF COURSE, THIS IS
NOT THE WAY TO PROVE DAMAGE IN SUCH A CONTROVERSY; WATER FOR BENEFICIAL
USE IS WHAT COUNTS.  NO INJURY RESULTS FROM THE DEPRIVATION OF WATER
UNLESS A NEED IS SHOWN FOR THAT WATER FOR BENEFICIAL CONSUMPTIVE USE AT
THE TIME BY THE STATE CLAIMING TO HAVE BEEN WRONGFULLY DEPRIVED OF IT.
IF WATER IS NOT NEEDED BY DOWNSTREAM SENIOR RIGHTS, THE DENIAL OF WATER
TO UPSTREAM JUNIOR RIGHTS CAN RESULT ONLY IN WASTE.  NO STATE MAY PLAY
DOG IN THE MANGER, AND BUILD UP RESERVES FOR FUTURE USE IN THE ABSENCE
OF PRESENT NEED AND PRESENT DAMAGE. 

EVEN ON NEBRASKA'S THEORY, SHE DID NOT SEE FIT TO IMPLEAD COLORADO,
OBVIOUSLY BECAUSE SHE DESPAIRED OF SHOWING THAT ANYTHING COLORADO WAS
DOING, OR THREATENING PRESENTLY TO DO, DEPRIVED HER OF ANY RIGHT. 
WYOMING IMPLEADED COLORADO NOT ON THE THEORY THAT COLORADO WAS INJURING
WYOMING, OR THREATENING SO TO DO, BUT ON THE THEORY THAT THERE OUGHT TO
BE AN APPORTIONMENT OF "RIGHTS" IN THE WATERS OF THE STREAM AS BETWEEN
THE THREE STATES,  - AN ADVISORY JUDGMENT ON THE SUBJECT. 

I SHALL FIRST DISCUSS THE CONTEMPLATED DECREE AS IT AFFECTS
COLORADO.  THE MASTER FINDS: 

"EQUITY DOES NOT REQUIRE ANY RESTRICTION UPON OR INTERFERENCE WITH
PRESENT USES OF WATER BY COLORADO WITHIN THE NORTH PLATTE BASIN IN
NORTH PARK OR ANY REDUCTION IN THE PRESENT RATE OF TRANSBASIN
EXPORTATION FROM NORTH PARK. 

     .         .         .         .  . 

"FURTHERMORE, REDUCTION IN COLORADO USE WOULD NOT CORRESPONDINGLY
ENHANCE THE SUPPLY OF THE OTHER STATES.  IN FACT THERE IS NO CLEAR
SHOWING AS TO THE EXTENT OF BENEFIT TO THE NORTH PLATTE PROJECT OR
OTHER WYOMING OR NEBRASKA USERS OF ANY LIMITATION UPON PRESENT USES IN
NORTH PARK." 

THE MASTER CONCLUDES: 

"FROM A CONSIDERATION OF ALL THE FACTORS BEARING ON THOSE EQUITIES,
MY JUDGMENT IS THAT EQUITABLE APPORTIONMENT DOES NOT REQUIRE ANY
INTERFERENCE WITH PRESENT USES IN NORTH PARK." 

AFTER REFERRING TO POSSIBLE SCHEMES FOR FURTHER USE OF WATER IN
COLORADO AS CONSTITUTING A THREAT OF FURTHER DEPLETION, HE SAYS OF THE
THREAT:  "IT CAN HARDLY BE SAID TO BE IMMEDIATE."  HE SUMS UP HIS
CONCLUSIONS AS TO COLORADO AS FOLLOWS: 

"A PROHIBITION AGAINST FURTHER EXPANSION OF IRRIGATION IN NORTH PARK
SEEMS TO ME RECOMMENDED BY CONSIDERATION OF (A) THE INSUFFICIENCY OF
THE PRESENT SUPPLY AT BEST TO MORE THAN SATISFY THE REQUIREMENTS OF
PRESENTLY ESTABLISHED USES, (B) THE PRINCIPLE LAID DOWN IN WYOMING V.
COLORADO, (C) THE CONSONANCE OF SUCH LIMITATION WITH THE GENERAL PLAN
OF APPORTIONMENT BEING RECOMMENDED HEREIN.  AT THE SAME TIME TO IMPOSE
A PERMANENTLY FIXED RESTRICTION AGAINST FURTHER IRRIGATION DEVELOPMENT
IN NORTH PARK WOULD NOT APPEAR JUSTIFIED IN VIEW OF THE POSSIBILITY OF
SUCH FUTURE INCREASE IN SUPPLY AS TO RENDER IT UNNECESSARY.  THE THREE
ALTERNATIVES ARE (1) AN OUTRIGHT DISMISSAL AS TO COLORADO, (2) DENIAL
OF ANY PRESENT RELIEF AGAINST THAT STATE WITH RETENTION OF JURISDICTION
TO GRANT SUCH RELIEF ON A LATER SHOWING OF SUCH CONTINUATION OF PRESENT
CONDITIONS OF SUPPLY AS TO REQUIRE THE CONCLUSION THAT THEY MUST BE
ACCEPTED AS THE MEASURE OF DEPENDABILITY, (3) IMPOSITION OF A
LIMITATION TO PRESENT USES OF WATER WITH RETENTION OF JURISDICTION TO
RELEASE THE RESTRICTION IF AND WHEN THE 'DRY CYCLE' SHALL RUN ITS
COURSE AND IT APPEARS THAT THE WATER SUPPLY HAS BECOME SUCH AS TO
JUSTIFY FURTHER EXPANSION OF IRRIGATION IN NORTH PARK.  A REASONABLE
ARGUMENT CAN BE MADE FOR ANY OF THESE THREE ALTERNATIVES.  MY
RECOMMENDATION IN LINE WITH THE THIRD ALTERNATIVE IS THAT COLORADO BE
LIMITED TO THE IRRIGATION OF 135,000 ACRES, TO THE ACCUMULATION
ANNUALLY OF 17,000 ACRE FEET OF STORAGE WATER, AND THE EXPORTATION OF
6,000 ACRE FEET PER ANNUM TO THE SOUTH PLATTE BASIN." 

IN THE PROPOSED DECREE, HE WOULD ENJOIN COLORADO IN ACCORDANCE WITH
THIS RECOMMENDATION ALTHOUGH, CONFESSEDLY, COLORADO IS NOT DIVERTING OR
CONTEMPLATING DIVERSION OF THE WATERS IN QUESTION.  A MORE GRATUITOUS
INTERFERENCE WITH A QUASI-SOVEREIGN STATE I CANNOT IMAGINE.  IT WOULD
DISREGARD ALL THAT WE HAVE REPEATEDLY SAID TO THE EFFECT THAT A STATE
SHOULD NOT BE ENJOINED BY THIS COURT AT THE SUIT OF A SISTER STATE
UNLESS SHE IS INFLICTING, OR THREATENING IMMEDIATELY TO INFLICT, GRAVE
AND SUBSTANTIAL DAMAGE UPON THE COMPLAINANT.  I CANNOT IMAGINE THAT, AS
BETWEEN PRIVATE PARTIES, AN INJUNCTION WOULD GO AGAINST ONE WHO IS NOT
DOING, OR IMMEDIATELY THREATENING TO DO, HARM TO THE COMPLAINANT.  THE
COURT IS SIMPLY TAKING COLORADO UNDER ITS WING AND PROPOSES TO ACT AS
GUARDIAN OF THE STATE IN RESPECT TO THE WATERS OF THE NORTH PLATTE
WITHIN HER BORDERS. 

ONE NEED ONLY EXAMINE THE MASTER'S REPORT TO DETERMINE THAT
NEBRASKA'S CASE AGAINST WYOMING STANDS NO BETTER THAN THAT AGAINST
COLORADO. 

THIS COURT STATED, IN COLORADO V. KANSAS, 320 U.S. 383, 393:  "SUCH A
CONTROVERSY AS IS HERE PRESENTED IS NOT TO BE DETERMINED AS IF IT WERE
ONE BETWEEN TWO PRIVATE RIPARIAN PROPRIETORS OR APPROPRIATORS."  NOR IS
IT TO BE DETERMINED BY THE RELATIVE PRIORITIES OF THE USERS IN THE
UPPER AND THE LOWER STATES.  YET THAT IS WHAT IN EFFECT NEBRASKA SOUGHT
BY HER COMPLAINT.  SHE IS NOT AWARDED THE RELIEF SHE ASKED BUT INSTEAD
THE SO-CALLED "NATURAL FLOW" WATER IS APPORTIONED IN PERCENTAGES
BETWEEN WYOMING AND NEBRASKA.  THIS IS DONE IN SPITE OF THE FACT THAT
THE MASTER FINDS THAT NEBRASKA NEEDS NONE OF THE NATURAL FLOW WHICH
PASSES THE TRI-STATE DAM FOR LANDS LYING BELOW THAT POINT BUT HAS AMPLE
WATER FOR THOSE LANDS, REGARDLESS OF ANY SUCH FLOW.  WITHOUT A SHOWING
OF NEED FOR WATER FOR BENEFICIAL USE AND, IN SPITE OF THE FACT THAT
SOME OF THE WATER FLOWING PAST THE TRI-STATE DAM IS FOUND NOW TO GO TO
WASTE, AN APPORTIONMENT IS MADE BETWEEN WYOMING AND NEBRASKA.  THE
MASTER'S FINDINGS SHOW THAT, UNDER THE HERETOFORE UNIFORM TEST,
NEBRASKA HAS NOT PROVED SUCH DAMAGE AS WOULD ENTITLE HER NOW TO
RELIEF.  THE TABLE QUOTED IN FOOTNOTE 4 OF THE COURT'S OPINION
DEMONSTRATES THAT DURING A THIRTY-YEAR PERIOD, WHILE IRRIGATION DID NOT
INCREASE MATERIALLY IN COLORADO AND INCREASED ABOUT ONE-THIRD IN
WYOMING, NEBRASKA MORE THAN DOUBLED HER ACREAGES UNDER IRRIGATION. 
SPEAKING OF NEBRASKA AGRICULTURE'S DEPENDENCE ON IRRIGATION, THE MASTER
SAYS:    "ON THE OTHER HAND, WHEN SCANNED FOR EVIDENCE OF SERIOUS
DROUTH DAMAGE SINCE 1931, THE STATISTICS ARE EQUIVOCAL.  IT APPEARS
THAT THERE WAS A RATHER SHARP REDUCTION IN THE PRODUCTION OF ALFALFA
AND SUGAR BEETS, BUT THE INDICATION IS THAT THIS WAS DUE TO A REDUCTION
OF ACREAGE RATHER THAN OF RATE OF YIELD.  WHILE THERE WAS SOME DECLINE
IN THE PRODUCTION RATE OF ALFALFA, THERE WAS A RISE IN THE RATE FOR
SUGAR BEETS.  THE ACREAGES DEVOTED TO BEANS AND POTATOES INCREASED TO
VERY CLOSELY OFFSET THE REDUCTION IN BEETS AND ALFALFA, THE TOTAL
ACREAGES DEVOTED TO THE FOUR CROPS FOR THE THREE FIVE-YEAR PERIODS,
BEING 124,281, 122,332, AND 122,130 RESPECTIVELY.  THE LARGE INCREASE
IN TOTAL PRODUCTION OF BEANS AND POTATOES SHOULD ALSO BE NOTED.  THE
STATISTICS, TAKEN ALL IN ALL, ARE, TO SAY THE LEAST, INCONCLUSIVE AS TO
THE EXISTENCE OR EXTENT OF DAMAGE TO NEBRASKA BY REASON OF THE DROUTH
OR BY REASON OF ANY DEPRIVATION OF WATER BY WRONGFUL USES IN WYOMING OR
COLORADO. 

"NEBRASKA MAKES NO STRONG CLAIM FOR ITS SHOWING IN THIS REGARD.  HER
BRIEF SAYS: 

'...  THE FACTORS INVOLVED IN THE CROP STATISTICS WHICH CANNOT BE
ELIMINATED LARGELY DISTORT THE PICTURE AND MAKE IT DIFFICULT TO SHOW
ONE WAY OR THE OTHER THE EFFECT AND RESULTS OF THE SHORTAGE OF
IRRIGATION WATER UPON CROP PRODUCTION.  HOWEVER, WE BELIEVE THAT WHEN
THE STATISTICS ARE PROPERLY CONSIDERED IN THE LIGHT OF OTHER FACTORS,
THEY INDICATE THAT CROP PRODUCTION IS SERIOUSLY DAMAGED WHEN THE WATER
SUPPLY IS LOW.' 

"ANOTHER APPARENT DEMONSTRATION OF THE IMPORTANCE OF THE PART PLAYED
BY IRRIGATION IN THE ECONOMIC DEVELOPMENT OF WESTERN NEBRASKA MAY BE
SEEN IN ITS EXHIBITS 433 AND 434, IN WHICH THE GROWTH OF POPULATION IN
EIGHT COUNTIES IN WHICH IRRIGATION HAS BEEN PRACTICED IS COMPARED WITH
THAT OF SIX COUNTIES WITHOUT IRRIGATION, THE LATTER LYING IMMEDIATELY
EAST AND SOUTH OF THE IRRIGATED GROUP.  THE FIRST OR IRRIGATED GROUP OF
COUNTIES SHOWS AN INCREASE IN POPULATION IN THE 40-YEAR PERIOD BETWEEN
1890 AND 1930 OF 131 PER CENT.  THE SECOND, THE NONIRRIGATED GROUP, FOR
THE SAME PERIOD SHOWS A POPULATION LOSS OF THREE PER CENT.  NO ATTEMPT,
HOWEVER, IS MADE TO ATTRIBUTE THIS LACK OF GROWTH IN THE SECOND GROUP
TO ANYTHING DONE IN WYOMING OR COLORADO." 

AGAIN THE MASTER SAYS: 

"IT IS OF COURSE OBVIOUS IN GENERAL AND WITHOUT ANY DETAILED PROOF
THAT IN AN ARID OR SEMI-ARID COUNTRY DEPRIVATION OF WATER FOR
IRRIGATION IN TIME OF NEED CANNOT BE OTHERWISE THAN INJURIOUS TO THE
AREA DEPRIVED.  THE WEAKNESS, IF SUCH THERE BE, IN NEBRASKA'S PROOF IS
UNCERTAINTY AS TO THE EXTENT OF ANY INVASION OF HER EQUITABLE SHARE
EXCEPT AS MEASURED BY DIVERSIONS 'OUT OF PRIORITY' AND UNCERTAINTY AS
TO THE EXTENT OF HER INJURY CONSEQUENT UPON THE ALLEGED VIOLATION OF
HER EQUITABLE RIGHTS, EXCEPT AS MEASURED BY THE DOLLAR VALUE ASSIGNED
TO THE WATER LOST TO HER THROUGH SUCH DIVERSIONS.  IF TO SUSTAIN HER
BURDEN OF PROOF NEBRASKA MUST ESTABLISH NOT ONLY VIOLATIONS OF HER
PRIORITIES OR INFRINGEMENT OTHERWISE ON HER EQUITABLE SHARE BY THE
OTHER STATES, BUT ALSO THAT AS A RESULT SHE HAS SUFFERED INJURY OF
GREAT MAGNITUDE IN THE BROAD SENSE OF SERIOUS DAMAGE TO HER AGRICULTURE
OR INDUSTRIES OR OBSERVABLE ADVERSE EFFECTS UPON HER GENERAL ECONOMY,
PROSPERITY OR POPULATION, THEN HER PROOF HAS FAILED, FOR THERE IS NO
CLEAR EVIDENCE OF ANY OF THESE THINGS." 

FURTHER THE MASTER FINDS: 

"ANOTHER FACTOR FAVORING NEBRASKA IS THAT THERE WILL COMMONLY BE
ACCIDENTAL WATER IN SUBSTANTIAL QUANTITIES PASSING THE STATE LINE ABOVE
THAT ALLOCATED TO THE STATE.  EVEN DURING THE DRY CYCLE AND WITH NO
RESTRICTION ON WYOMING USES, THE USABLE WATER PASSING TRI-STATE DAM
AVERAGED IN THE MAY-SEPTEMBER PERIOD 81,700 ACRE FEET.  MORE THAN HALF
OF THIS FLOW, HOWEVER, OCCURRED IN MAY AND JUNE WITH COMPARATIVELY
LITTLE IN AUGUST AND SEPTEMBER.  THE QUANTITY IS PERHAPS TOO UNCERTAIN
TO BE CONSIDERED OF GREAT IMPORTANCE.  IT IS A MINOR FACTOR IN THE
BALANCING OF EQUITIES BETWEEN THE STATES." 

THUS IT IS APPARENT THAT OF THE VERY NATURAL FLOW OF WATER WITH WHICH
THE MASTER IS DEALING SOME OF IT WENT TO WASTE IN THE AREA HE
CONSIDERED CRITICAL.  IN OTHER WORDS, THERE WAS MORE WATER FOR NEBRASKA
THAN SHE TURNED TO BENEFICIAL USE EVEN IN THE DROUGHT YEARS. 

AS RESPECTS BOTH DEFENDANTS THE DECREE MAKES A PROVISIONAL ADJUSTMENT
BASED UPON DROUGHT CONDITIONS, WITH THE UNDERSTANDING THAT IF
CONDITIONS CHANGE, BY REASON OF EVENTS NOT NOW ENVISAGED, THE
DEFENDANTS MAY AGAIN COME TO THIS COURT FOR ANOTHER PROVISIONAL
ARRANGEMENT WHICH SHALL STAND UNTIL SOME PARTY TO THE DECREE THINKS
THAT A FURTHER REVISION SHOULD BE MADE.  THUS THREE STATES, WITH
RESPECT TO THEIR QUASI-SOVEREIGN RIGHTS, WILL BE IN TUTELAGE TO THIS
COURT HENCEFORTH. 

SUCH CONTROVERSIES BETWEEN STATES ARE NOT EASILY PUT TO REPOSE.  EVEN
WHEN JUDICIAL ENFORCEMENT OF RIGHTS IS REQUIRED, THE ATTEMPT FINALLY TO
ADJUDICATE THEM OFTEN PROVES ABORTIVE.  OUR REPORTS AFFORD EVIDENCE OF
THIS FACT.  KANSAS AND COLORADO CAME HERE TWICE, AT THE INSTANCE OF
KANSAS, IN A DISPUTE OVER THE FLOW OF THE ARKANSAS RIVER.  FN2  IN A
CASE PRESENTING, ON THE WHOLE, LESS DIFFICULTY THAN THE PRESENT ONE
THIS COURT ENTERED A DECREE JUNE 5, 1922,  FN3  ONLY TO FIND IT
NECESSARY TO REVISE IT ON OCTOBER 9, 1922.  FN4  BUT THE CONTROVERSY
WOULD NOT DOWN.  THE PARTIES CAME BACK HERE ON THREE OCCASIONS BECAUSE
OF MISUNDERSTANDINGS AND DISAGREEMENTS WITH RESPECT TO THE EFFECT OF
OUR DECREE.  FN5 

THE CONTROVERSY WITH RESPECT TO THE DIVERSION OF THE WATERS OF LAKE
MICHIGAN SEEMED TO REQUIRE A DECREE CONDITIONED UPON, AND CONTAINING
PROVISIONS WITH RESPECT TO, FUTURE CONDUCT.  THE DIFFICULTY OF
ADMINISTERING THAT DECREE IS EVIDENCED BY THE REPEATED APPEARANCE OF
THE PARTIES IN THIS COURT.  FN6 

EXPERIENCE TEACHES THE WISDOM OF THE RULE WE HAVE SO OFTEN ANNOUNCED,
THAT, IN SUCH CASES, THE COMPLAINING STATE MUST SHOW ACTUAL OR
IMMEDIATELY THREATENED DAMAGE OF SUBSTANTIAL MAGNITUDE TO MOVE THIS
COURT TO GRANT RELIEF; AND THAT, UNTIL SUCH SHOWING IS MADE, THE COURT
SHOULD NOT INTERFERE.  THE COURT, AS I THINK, NOW DEPARTS FROM THIS
COURSE. 

THE BILL SHOULD BE DISMISSED. 

FN1  COLORADO V. KANSAS, 320 U.S. 383. 

FN2  KANSAS V. COLORADO, 206 U.S. 46; COLORADO V. KANSAS, 320 U.S.
383. 

FN3  WYOMING V. COLORADO, 259 U.S. 496. 

FN4  ID. 260 U.S. 1. 

FN5  ID. 286 U.S. 494; 298 U.S. 573; 309 U.S. 572. 

FN6  WISCONSIN V. ILLINOIS, 278 U.S. 367; 281 U.S. 179; 289 U.S. 395;
309 U.S. 569; 311 U.S. 107; 313 U.S. 547. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE RUTLEDGE JOIN IN THIS
OPINION. 

                               DECREE. 

        (ENTERED OCTOBER 8, 1945.) 

THIS CAUSE HAVING BEEN HERETOFORE SUBMITTED ON THE REPORT OF THE
SPECIAL MASTER AND THE EXCEPTIONS OF THE PARTIES THERETO, AND THE COURT
BEING NOW FULLY ADVISED IN THE PREMISES: 

IT IS ORDERED, ADJUDGED AND DECREED THAT: 

I. THE STATE OF COLORADO, ITS OFFICERS, ATTORNEYS, AGENTS AND
EMPLOYEES, BE AND THEY ARE HEREBY SEVERALLY ENJOINED 

(A)  FROM DIVERTING OR PERMITTING THE DIVERSION OF WATER FROM THE
NORTH PLATTE RIVER AND ITS TRIBUTARIES FOR THE IRRIGATION OF MORE THAN
A TOTAL OF 135,000 ACRES OF LAND IN JACKSON COUNTY, COLORADO, DURING
ANY ONE IRRIGATION SEASON; 

(B)  FROM STORING OR PERMITTING THE STORAGE OF MORE THAN A TOTAL
AMOUNT OF 17,000 ACRE FEET OF WATER FOR IRRIGATION PURPOSES FROM THE
NORTH PLATTE RIVER AND ITS TRIBUTARIES IN JACKSON COUNTY, COLORADO,
BETWEEN OCTOBER 1 OF ANY YEAR AND SEPTEMBER 30 OF THE FOLLOWING YEAR; 

(C)  FROM EXPORTING OUT OF THE BASIN OF THE NORTH PLATTE RIVER AND
ITS TRIBUTARIES IN JACKSON COUNTY, COLORADO, TO ANY OTHER STREAM BASIN
OR BASINS MORE THAN 60,000 ACRE FEET OF WATER IN ANY PERIOD OF TEN
CONSECUTIVE YEARS RECKONED IN CONTINUING PROGRESSIVE SERIES BEGINNING
WITH OCTOBER 1, 1945. 

II.  EXCLUSIVE OF THE KENDRICK PROJECT AND SEMINOE RESERVOIR THE
STATE OF WYOMING, ITS OFFICERS, ATTORNEYS, AGENTS AND EMPLOYEES, BE AND
THEY ARE HEREBY SEVERALLY ENJOINED 

(A)  FROM DIVERTING OR PERMITTING THE DIVERSION OF WATER FROM THE
NORTH PLATTE RIVER ABOVE THE GUERNSEY RESERVOIR AND FROM THE
TRIBUTARIES ENTERING THE NORTH PLATTE RIVER ABOVE THE PATHFINDER DAM
FOR THE IRRIGATION OF MORE THAN A TOTAL OF 168,000 ACRES OF LAND IN
WYOMING DURING ANY ONE IRRIGATION SEASON. 

(B)  FROM STORING OR PERMITTING THE STORAGE OF MORE THAN A TOTAL
AMOUNT OF 18,000 ACRE FEET OF WATER FOR IRRIGATION PURPOSES FROM THE
NORTH PLATTE RIVER AND ITS TRIBUTARIES ABOVE THE PATHFINDER RESERVOIR
BETWEEN OCTOBER 1 OF ANY YEAR AND SEPTEMBER 30 OF THE FOLLOWING YEAR. 

III.  THE STATE OF WYOMING, ITS OFFICERS, ATTORNEYS, AGENTS AND
EMPLOYEES, BE AND THEY ARE HEREBY SEVERALLY ENJOINED FROM STORING OR
PERMITTING THE STORAGE OF WATER IN PATHFINDER, GUERNSEY, SEMINOE AND
ALCOVA RESERVOIRS OTHERWISE THAN IN ACCORDANCE WITH THE RELATIVE
STORAGE RIGHTS, AS AMONG THEMSELVES, OF SUCH RESERVOIRS, WHICH ARE
HEREBY DEFINED AND FIXED AS FOLLOWS: 

FIRST, PATHFINDER RESERVOIR; 

SECOND, GUERNSEY RESERVOIR; 

THIRD, SEMINOE RESERVOIR; AND 

FOURTH, ALCOVA RESERVOIR; 

PROVIDED, HOWEVER, THAT WATER MAY BE IMPOUNDED IN OR RELEASED FROM
SEMINOE RESERVOIR, CONTRARY TO THE FOREGOING RULE OF PRIORITY OPERATION
FOR USE IN THE GENERATION OF ELECTRIC POWER WHEN AND ONLY WHEN SUCH
STORAGE OR RELEASE WILL NOT MATERIALLY INTERFERE WITH THE
ADMINISTRATION OF WATER FOR IRRIGATION PURPOSES ACCORDING TO THE
PRIORITY DECREED FOR THE FRENCH CANAL AND THE STATE LINE CANALS. 

IV.  THE STATE OF WYOMING, ITS OFFICERS, ATTORNEYS, AGENTS AND
EMPLOYEES BE AND THEY ARE HEREBY SEVERALLY ENJOINED FROM STORING OR
PERMITTING THE STORAGE OF WATER IN PATHFINDER, GUERNSEY, SEMINOE OR
ALCOVA RESERVOIRS, AND FROM THE DIVERSION OF NATURAL FLOW WATER THROUGH
THE CASPER CANAL FOR THE KENDRICK PROJECT BETWEEN AND INCLUDING MAY 1
AND SEPTEMBER 30 OF EACH YEAR OTHERWISE THAN IN ACCORDANCE WITH THE
RULE OF PRIORITY IN RELATION TO THE APPROPRIATIONS OF THE NEBRASKA
LANDS SUPPLIED BY THE FRENCH CANAL AND BY THE STATE LINE CANALS, WHICH
SAID NEBRASKA APPROPRIATIONS ARE HEREBY ADJUDGED TO BE SENIOR TO SAID
FOUR RESERVOIRS AND SAID CASPER CANAL, AND WHICH SAID NEBRASKA
APPROPRIATIONS ARE HEREBY IDENTIFIED AND DEFINED, AND THEIR DIVERSION
LIMITATIONS IN SECOND FEET AND SEASONAL LIMITATIONS IN ACRE FEET FIXED
AS FOLLOWS:

                                 LIMITATION    SEASONAL

                                            IN SEC.     LIMITATION

           LANDS                  CANAL         FEET     IN ACRE
FT. 

TRACT OF 1,025 ACRES............FRENCH.........         15
2,227 

MITCHELL IRRIGATION DISTRICT....MITCHELL.......        195
35,000 

GERING IRRIGATION DISTRICT......GERING.........        193
36,000 

FARMERS IRRIGATION DISTRICT.....TRI-STATE......        748
183,050 

RAMSHORN IRRIGATION DISTRICT....RAMSHORN.......         14
3,000 

V. THE NATURAL FLOW IN THE GUERNSEY DAM TO TRI-STATE DAM SECTION
BETWEEN AND INCLUDING MAY 1 AND SEPTEMBER 30 OF EACH YEAR, INCLUDING
THE CONTRIBUTION OF SPRING CREEK, BE AND THE SAME HEREBY IS APPORTIONED
BETWEEN WYOMING AND NEBRASKA ON THE BASIS OF TWENTY-FIVE PER CENT TO
WYOMING AND SEVENTY-FIVE PER CENT TO NEBRASKA, WITH THE RIGHT GRANTED
NEBRASKA TO DESIGNATE FROM TIME TO TIME THE PORTION OF ITS SHARE WHICH
SHALL BE DELIVERED INTO THE INTERSTATE, FORT LARAMIE, FRENCH AND
MITCHELL CANALS FOR USE ON THE NEBRASKA LANDS SERVED BY THESE CANALS. 
THE STATE OF NEBRASKA, ITS OFFICERS, ATTORNEYS, AGENTS AND EMPLOYEES,
AND THE STATE OF WYOMING, ITS OFFICERS, ATTORNEYS, AGENTS AND
EMPLOYEES, ARE HEREBY ENJOINED AND RESTRAINED FROM DIVERSION OR USE
CONTRARY TO THIS APPORTIONMENT, PROVIDED THAT IN THE APPORTIONMENT OF
WATER IN THIS SECTION THE FLOW FOR EACH DAY, UNTIL ASCERTAINABLE, SHALL
BE ASSUMED TO BE THE SAME AS THAT OF THE PRECEDING DAY, AS SHOWN BY THE
MEASUREMENTS AND COMPUTATIONS FOR THAT DAY, AND PROVIDED FURTHER, THAT
UNLESS AND UNTIL NEBRASKA, WYOMING AND THE UNITED STATES AGREE UPON A
MODIFICATION THEREOF, OR UPON ANOTHER FORMULA, RESERVOIR EVAPORATION
AND TRANSPORTATION LOSSES IN THE SEGREGATION OF NATURAL FLOW AND
STORAGE SHALL BE COMPUTED IN ACCORDANCE WITH THE FOLLOWING FORMULA
TAKEN FROM UNITED STATES' EXHIBIT 204A: 

RESERVOIR EVAPORATION LOSSES. 

SEMINOE, PATHFINDER AND ALCOVA RESERVOIRS. 

EVAPORATION WILL BE COMPUTED DAILY BASED UPON EVAPORATION FROM
WEATHER BUREAU STANDARD 4 FOOT DIAMETER CLASS "A" PAN LOCATED AT
PATHFINDER RESERVOIR.  DAILY EVAPORATION WILL BE MULTIPLIED BY AREA OF
WATER SURFACE OF RESERVOIR IN ACRES AND BY CO-EFFICIENT OF 70% TO
REDUCE PAN RECORD TO OPEN WATER SURFACE.  GUERNSEY RESERVOIR. 

COMPUTE SAME AS ABOVE EXCEPT USE PAN EVAPORATION AT WHALEN DAM. 

RIVER CARRIAGE LOSSES. 

RIVER CARRIAGE LOSSES WILL BE COMPUTED UPON BASIS OF AREA OF RIVER
WATER SURFACE AS DETERMINED BY AERIAL SURVEYS MADE IN 1939 AND PREVIOUS
YEARS AND UPON AVERAGE MONTHLY EVAPORATION AT PATHFINDER RESERVOIR FOR
THE PERIOD 1921 TO 1939, INCLUSIVE, USING A CO-EFFICIENT OF 70% TO
REDUCE PAN RECORDS TO OPEN WATER SURFACE. 

DAILY EVAPORATION LOSSES IN SECOND-FEET FOR VARIOUS SECTIONS OF THE
RIVER ARE SHOWN IN THE FOLLOWING TABLE:

                       TABLE

  AREA      DAILY LOSS - SECOND FEET

      RIVER SECTION          ACRES  MAY  JUNE  JULY  AUG. SEPT. 

ALCOVA TO WENDOVER............. 8,360   53    76    87    76     56 
GUERNSEY RES. TO WHALEN........   560    4     5     6     5      4 

WHALEN TO STATE LINE........... 2,430   16    22 25    22     16 

ABOVE TABLE IS BASED UPON MEAN EVAPORATION AT PATHFINDER AS FOLLOWS:
MAY .561 FT.; JUNE .767 FT.; JULY .910 FT.; AUG. .799 FT.; SEPT. .568
FT.  CO-EFFICIENT OF 70% TO REDUCE PAN RECORD TO OPEN WATER SURFACE. 

ABOVE TABLE DOES NOT CONTAIN COMPUTED LOSS FOR SECTION OF RIVER FROM
PATHFINDER DAM TO HEAD OF ALCOVA RESERVOIR (AREA 170 ACRES) BECAUSE
THIS AREA IS LESS THAN SUBMERGED AREA OF ORIGINAL RIVER BED IN ALCOVA
RESERVOIR, AND IS, THEREFORE, CONSIDERED AS OFF-SET.    LIKEWISE THE
AREA BETWEEN SEMINOE DAM AND HEAD OF PATHFINDER RESERVOIR IS LESS THAN
AREA OF ORIGINAL RIVER BED THROUGH PATHFINDER RESERVOIR - CONSIDERED AS
OFF-SET.  EVAPORATION LOSSES WILL BE DIVIDED BETWEEN NATURAL FLOW AND
STORAGE WATER FLOWING IN ANY SECTION OF RIVER CHANNEL UPON A
PROPORTIONAL BASIS.  THIS PROPORTION WILL ORDINARILY BE DETERMINED AT
THE UPPER END OF THE SECTION EXCEPT UNDER CONDITIONS OF INTERVENING
ACCRUALS OR DIVERSIONS THAT MATERIALLY CHANGE THE RATIO OF STORAGE TO
NATURAL FLOW AT THE LOWER END OF THE SECTION.  IN SUCH EVENT THE
AVERAGE PROPORTION FOR THE SECTION WILL BE DETERMINED BY USING THE MEAN
RATIO FOR THE TWO ENDS OF THE SECTION. 

IN THE DETERMINATION OF TRANSPORTATION LOSSES FOR THE VARIOUS
FROM POINT TO POINT SHALL BE USED AS MAY BE AGREED UPON BY NEBRASKA,
WYOMING AND THE UNITED STATES, OR IN THE ABSENCE OF SUCH AGREEMENT, AS
MAY BE DECIDED UPON FROM DAY TO DAY BY THE MANAGER OF THE GOVERNMENT
RESERVOIRS, WITH SUCH ADJUSTMENTS TO BE MADE BY SAID MANAGER FROM TIME
TO TIME AS MAY BE NECESSARY TO MAKE AS ACCURATE A SEGREGATION AS IS
POSSIBLE. 

VI.  THIS DECREE IS INTENDED TO AND DOES DEAL WITH AND APPORTION ONLY
THE NATURAL FLOW OF THE NORTH PLATTE RIVER.  STORAGE WATER SHALL NOT BE
AFFECTED BY THIS DECREE AND THE OWNERS OF RIGHTS THEREIN SHALL BE
PERMITTED TO DISTRIBUTE THE SAME IN ACCORDANCE WITH ANY LAWFUL
CONTRACTS WHICH THEY MAY HAVE ENTERED INTO OR MAY IN THE FUTURE ENTER
INTO, WITHOUT INTERFERENCE BECAUSE OF THIS DECREE. 

VII.  SUCH ADDITIONAL GAUGING STATIONS AND MEASURING DEVICES AT OR
NEAR THE WYOMING-NEBRASKA STATE LINE, IF ANY, AS MAY BE NECESSARY FOR
MAKING ANY APPORTIONMENT HEREIN DECREED, SHALL BE CONSTRUCTED AND
MAINTAINED AT THE JOINT AND EQUAL EXPENSE OF WYOMING AND NEBRASKA TO
THE EXTENT THAT THE COSTS THEREOF ARE NOT PAID BY OTHERS. 

VIII.  THE STATE OF WYOMING, ITS OFFICERS, ATTORNEYS, AGENTS AND
EMPLOYEES BE AND THEY ARE HEREBY SEVERALLY ENJOINED FROM DIVERTING OR
PERMITTING THE DIVERSION OF WATER FROM THE NORTH PLATTE RIVER OR ITS
TRIBUTARIES AT OR ABOVE ALCOVA RESERVOIR IN LIEU OF OR IN EXCHANGE FOR
RETURN FLOW WATER FROM THE KENDRICK PROJECT REACHING THE NORTH PLATTE
RIVER BELOW ALCOVA RESERVOIR. 

IX.  THE STATE OF WYOMING AND THE STATE OF COLORADO BE AND THEY
HEREBY ARE EACH REQUIRED TO PREPARE AND MAINTAIN COMPLETE AND ACCURATE
RECORDS OF THE TOTAL AREA OF LAND IRRIGATED AND THE STORAGE AND
EXPORTATION OF THE WATER OF THE NORTH PLATTE RIVER AND ITS TRIBUTARIES
WITHIN THOSE PORTIONS OF THEIR RESPECTIVE JURISDICTIONS COVERED BY THE
PROVISIONS OF PARAGRAPHS I AND II HEREOF, AND SUCH RECORDS SHALL BE
AVAILABLE FOR INSPECTION AT ALL REASONABLE TIMES; PROVIDED, HOWEVER,
THAT SUCH RECORDS SHALL NOT BE REQUIRED IN REFERENCE TO THE WATER USES
PERMITTED BY PARAGRAPH X HEREOF. 

X. THIS DECREE SHALL NOT AFFECT OR RESTRICT THE USE OR DIVERSION OF
WATER FROM THE NORTH PLATTE RIVER AND ITS TRIBUTARIES IN COLORADO OR
WYOMING FOR ORDINARY AND USUAL DOMESTIC, MUNICIPAL AND STOCK WATERING
PURPOSES AND CONSUMPTION. 

XI.  FOR THE PURPOSES OF THIS DECREE: 

(A)  "SEASON" OR "SEASONAL" REFERS TO THE IRRIGATION SEASON, MAY 1 TO
SEPTEMBER 30, INCLUSIVE; 

(B)  THE TERM "STORAGE WATER" AS APPLIED TO RELEASES FROM RESERVOIRS
OWNED AND OPERATED BY THE UNITED STATES IS DEFINED AS ANY WATER WHICH
IS RELEASED FROM RESERVOIRS FOR USE ON LANDS UNDER CANALS HAVING
STORAGE CONTRACTS IN ADDITION TO THE WATER WHICH IS DISCHARGED THROUGH
THOSE RESERVOIRS TO MEET NATURAL FLOW USES PERMITTED BY THIS DECREE; 

(C)  "NATURAL FLOW WATER" SHALL BE TAKEN AS REFERRING TO ALL WATER IN
THE STREAM EXCEPT STORAGE WATER; 

(D)  RETURN FLOWS OF KENDRICK PROJECT SHALL BE DEEMED TO BE "NATURAL
FLOW WATER" WHEN THEY HAVE REACHED THE NORTH PLATTE RIVER, AND SUBJECT
TO THE SAME DIVERSION AND USE AS ANY OTHER NATURAL FLOW IN THE STREAM. 

XII.  THIS DECREE SHALL NOT AFFECT: 

(A)  THE RELATIVE RIGHTS OF WATER USERS WITHIN ANY ONE OF THE STATES
WHO ARE PARTIES TO THIS SUIT EXCEPT AS MAY BE OTHERWISE SPECIFICALLY
PROVIDED HEREIN; 

(B)  SUCH CLAIMS AS THE UNITED STATES HAS TO STORAGE WATER UNDER
WYOMING LAW; NOR WILL THE DECREE IN ANY WAY INTERFERE WITH THE
OWNERSHIP AND OPERATION BY THE UNITED STATES OF THE VARIOUS FEDERAL
STORAGE AND POWER PLANTS, WORKS AND FACILITIES. 

(C)  THE USE OR DISPOSITION OF ANY ADDITIONAL SUPPLY OR SUPPLIES OF
WATER WHICH IN THE FUTURE MAY BE IMPORTED INTO THE BASIN OF THE NORTH
PLATTE RIVER FROM THE WATER SHED OF AN ENTIRELY SEPARATE STREAM, AND
WHICH PRESENTLY DO NOT ENTER SAID BASIN, OR THE RETURN FLOW FROM ANY
SUCH SUPPLY OR SUPPLIES. 

(D)  THE APPORTIONMENT HERETOFORE MADE BY THIS COURT BETWEEN THE
STATES OF WYOMING AND COLORADO OF THE WATERS OF THE LARAMIE RIVER, A
TRIBUTARY OF THE NORTH PLATTE RIVER; 

(E)  THE APPORTIONMENT MADE BY THE COMPACT BETWEEN THE STATES OF
NEBRASKA AND COLORADO, APPORTIONING THE WATER OF THE SOUTH PLATTE
RIVER. 

XIII.  ANY OF THE PARTIES MAY APPLY AT THE FOOT OF THIS DECREE FOR
ITS AMENDMENT OR FOR FURTHER RELIEF.  THE COURT RETAINS JURISDICTION OF
THIS SUIT FOR THE PURPOSE OF ANY ORDER, DIRECTION, OR MODIFICATION OF
THE DECREE, OR ANY SUPPLEMENTARY DECREE, THAT MAY AT ANY TIME BE DEEMED
PROPER IN RELATION TO THE SUBJECT MATTER IN CONTROVERSY.  MATTERS WITH
REFERENCE TO WHICH FURTHER RELIEF MAY HEREAFTER BE SOUGHT SHALL
INCLUDE, BUT SHALL NOT BE LIMITED TO, THE FOLLOWING: 

(A)  THE QUESTION OF THE APPLICABILITY AND EFFECT OF THE ACT OF
AUGUST 9, 1937, 50 STAT. 564, 595-596, UPON THE RIGHTS OF COLORADO AND
ITS WATER USERS WHEN AND IF WATER HEREAFTER IS AVAILABLE FOR STORAGE
AND USE IN CONNECTION WITH THE KENDRICK PROJECT IN WYOMING. 

(B)  THE QUESTION OF THE EFFECT UPON THE RIGHTS OF UPSTREAM AREAS OF
THE CONSTRUCTION OR THREATENED CONSTRUCTION IN DOWNSTREAM AREAS OF ANY
PROJECTS NOT NOW EXISTING OR RECOGNIZED IN THIS DECREE; 

(C)  THE QUESTION OF THE EFFECT OF THE CONSTRUCTION OR THREATENED
CONSTRUCTION OF STORAGE CAPACITY NOT NOW EXISTING ON TRIBUTARIES
ENTERING THE NORTH PLATTE RIVER BETWEEN PATHFINDER RESERVOIR AND
GUERNSEY RESERVOIR; 

(D)  THE QUESTION OF THE RIGHT TO DIVERT AT OR ABOVE THE HEADGATE OF
THE CASPER CANAL ANY WATER IN LIEU OF, OR IN EXCHANGE FOR, ANY WATER
DEVELOPED BY ARTIFICIAL DRAINAGE TO THE RIVER OF SUMP AREAS ON THE
KENDRICK PROJECT; 

(E)  ANY QUESTION RELATING TO THE JOINT OPERATION OF PATHFINDER,
GUERNSEY, SEMINOE AND ALCOVA RESERVOIRS WHENEVER CHANGED CONDITIONS
MAKE SUCH JOINT OPERATION POSSIBLE; 

(F)  ANY CHANGE IN CONDITIONS MAKING MODIFICATION OF THE DECREE OR
THE GRANTING OF FURTHER RELIEF NECESSARY OR APPROPRIATE. 

XIV.  THE COSTS IN THIS CAUSE SHALL BE APPORTIONED AND PAID AS
FOLLOWS:  THE STATE OF COLORADO ONE-FIFTH; THE STATE OF WYOMING TWO
FIFTHS; AND THE STATE OF NEBRASKA TWO-FIFTHS.  PAYMENT OF THE FEES AND
EXPENSES OF THE SPECIAL MASTER HAS BEEN PROVIDED BY A PREVIOUS ORDER OF
THIS COURT. 

XV.  THE CLERK OF THIS COURT SHALL TRANSMIT TO THE CHIEF MAGISTRATES
OF THE STATES OF COLORADO, WYOMING, AND NEBRASKA, COPIES OF THIS DECREE
DULY AUTHENTICATED UNDER THE SEAL OF THIS COURT. 
..END :















LINCOLN LIFE INS. CO. V. READ, 325 U.S. 673 


NO. 833.  ARGUED APRIL 24, 25, 1945.  - DECIDED JUNE 11, 1945.  - 194
OKLA. 542, 156 P.2D 368, AFFIRMED. 


WHEN APPELLANT, AN INDIANA LIFE INSURANCE COMPANY, FIRST QUALIFIED TO
DO BUSINESS IN OKLAHOMA IN 1919, THE OKLAHOMA CONSTITUTION PROVIDED
THAT NO FOREIGN INSURANCE COMPANY SHOULD BE GRANTED A LICENSE OR BE
PERMITTED TO DO BUSINESS IN THE STATE UNLESS IT "SHALL AGREE TO PAY ALL
SUCH TAXES AND FEES AS MAY AT ANY TIME BE IMPOSED" BY THE LEGISLATURE. 
FOREIGN LIFE INSURANCE COMPANIES WERE REQUIRED TO PAY ANNUALLY AN
"ENTRANCE FEE" OF $200, A 2 PER CENT TAX ON ALL PREMIUMS COLLECTED IN
THE STATE, AND A TAX OF THREE DOLLARS ON EACH LOCAL AGENT.  A RENEWAL
LICENSE WAS OBTAINABLE BY PAYMENT ON OR BEFORE THE LAST DAY OF FEBRUARY
OF THE GROSS PREMIUM TAX ON ALL PREMIUMS RECEIVED DURING THE PRECEDING
CALENDAR YEAR.  A STATUTE OF 1941 INCREASED THE 2 PER CENT GROSS
PREMIUM TAX TO 4 PER CENT.  HELD: 

1.  APPELLANT WAS NOT DENIED EQUAL PROTECTION OF THE LAWS IN
VIOLATION OF THE FOURTEENTH AMENDMENT, EITHER BY THE 2 PER CENT OR THE
4 PER CENT GROSS PREMIUM TAX, EVEN THOUGH THE TAX WAS INAPPLICABLE TO
DOMESTIC CORPORATIONS.  HANOVER INS. CO. V. HARDING, 272 U.S. 494,
DISTINGUISHED.  P. 675. 

A STATE MAY IMPOSE ON A FOREIGN CORPORATION FOR THE PRIVILEGE OF
DOING BUSINESS WITHIN ITS BORDERS MORE ONEROUS CONDITIONS THAN IT
IMPOSES ON DOMESTIC COMPANIES. 

2.  THE EQUAL PROTECTION CLAUSE DOES NOT REQUIRE THAT THE TAX OR RATE
OF TAX EXACTED FROM A FOREIGN CORPORATION BE THE SAME AS THAT IMPOSED
ON DOMESTIC CORPORATIONS.  P. 678. 

3.  THE FACT THAT THE STATE COLLECTS THE TAX AT THE END OF THE
LICENSE YEAR IS IMMATERIAL; WHAT IS CONTROLLING IS THAT THE TAX WAS
LEVIED UPON THE PRIVILEGE OF ENTERING THE STATE AND ENGAGING IN
BUSINESS THERE.  P. 678. 

LINCOLN NATIONAL LIFE INSURANCE CO. V. READ, INSURANCE COMMISSIONER OF
OKLAHOMA, ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

APPEAL FROM A JUDGMENT DENYING, IN PART, A RECOVERY OF ALLEGEDLY
UNCONSTITUTIONAL TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION PRESENTED BY THIS APPEAL IS WHETHER OKLAHOMA HAS
DENIED APPELLANT THE EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE
FOURTEENTH AMENDMENT. 

APPELLANT IS AN INDIANA CORPORATION.  IT QUALIFIED TO DO BUSINESS IN
OKLAHOMA IN 1919 AND HAS CONTINUED TO DO BUSINESS THERE EVERY YEAR
SINCE THEN.  THE OKLAHOMA CONSTITUTION THEN PROVIDED, AS IT DOES NOW,
IN ARTICLE XIX, SEC. 1, THAT: 

"NO FOREIGN INSURANCE COMPANY SHALL BE GRANTED A LICENSE OR PERMITTED
TO DO BUSINESS IN THIS STATE UNTIL IT SHALL HAVE COMPLIED WITH THE LAWS
OF THE STATE, INCLUDING THE DEPOSIT OF SUCH COLLATERAL OR INDEMNITY FOR
THE PROTECTION OF ITS PATRONS WITHIN THIS STATE AS MAY BE PRESCRIBED BY
LAW, AND SHALL AGREE TO PAY ALL SUCH TAXES AND FEES AS MAY AT ANY TIME
BE IMPOSED BY LAW OR ACT OF THE LEGISLATURE, ON FOREIGN INSURANCE
COMPANIES, AND A REFUSAL TO PAY SUCH TAXES OR FEES SHALL WORK A
FORFEITURE OF SUCH LICENSE."  SECTION 2, ARTICLE XIX OF THE OKLAHOMA
CONSTITUTION ALSO REQUIRED ALL FOREIGN LIFE INSURANCE COMPANIES TO PAY
PER ANNUM AN "ENTRANCE FEE" OF $200, AND PROVIDED: 

"UNTIL OTHERWISE PROVIDED BY LAW, DOMESTIC COMPANIES EXCEPTED, EACH
INSURANCE COMPANY, INCLUDING SURETY AND BOND COMPANIES, DOING BUSINESS
IN THIS STATE, SHALL PAY AN ANNUAL TAX OF TWO PER CENTUM ON ALL
PREMIUMS COLLECTED IN THE STATE, AFTER ALL CANCELLATIONS ARE DEDUCTED,
AND A TAX OF THREE DOLLARS ON EACH LOCAL AGENT." 

APPELLANT PAID THE "ENTRANCE FEE."  IT MADE APPLICATION FOR A
LICENSE.  AND IT SATISFIED THE OTHER REQUIREMENTS PRESCRIBED BY
OKLAHOMA FOR ADMISSION TO DO BUSINESS IN THE STATE.  FN1 IN EACH YEAR
SUBSEQUENT TO 1919 IT MADE APPLICATION FOR A RENEWAL LICENSE AND
SATISFIED THE VARIOUS REQUIREMENTS OF THE STATE. 

WHEN A FOREIGN INSURANCE COMPANY DESIRES, FOR THE FIRST TIME, TO DO
BUSINESS IN OKLAHOMA, IT MUST APPLY FOR A LICENSE TO EXPIRE ON THE LAST
DAY OF FEBRUARY NEXT AFTER THE ISSUE OF THE LICENSE AND ON OR BEFORE
SUCH DATE IT MUST PAY THE GROSS PREMIUM TAX ON ALL PREMIUMS, LESS
PROPER DEDUCTIONS, RECEIVED BY IT IN OKLAHOMA FROM THE DATE OF ITS
LICENSE TO AND INCLUDING DECEMBER 31ST OF THAT YEAR.  WHEN A FOREIGN
INSURANCE COMPANY WHICH HOLDS A LICENSE TO DO BUSINESS IN OKLAHOMA FOR
A PARTICULAR YEAR DESIRES TO DO BUSINESS THERE DURING THE ENSUING YEAR,
IT MUST MAKE APPLICATION FOR A LICENSE ON OR BEFORE THE LAST DAY OF
FEBRUARY OF THE CURRENT LICENSE YEAR, PAY THE GROSS PREMIUM TAX ON
PREMIUMS RECEIVED IN OKLAHOMA DURING THE PRECEDING CALENDAR YEAR, AND
ON OR BEFORE THE LAST DAY OF FEBRUARY OF THE ENSUING LICENSE YEAR PAY
THE GROSS PREMIUM TAX ON PREMIUMS RECEIVED BY IT IN OKLAHOMA DURING THE
PRECEDING CALENDAR YEAR.  THAT IS TO SAY, THE LICENSES ISSUED EXPIRE ON
THE LAST DAY OF FEBRUARY NEXT AFTER THEIR ISSUANCE; AND TO OBTAIN A
RENEWAL THE COMPANY MUST PAY ON OR BEFORE THE LAST DAY OF FEBRUARY IN
EACH YEAR THE GROSS PREMIUM TAX ON ALL PREMIUMS RECEIVED DURING THE
PRECEDING CALENDAR YEAR.  WE ARE TOLD BY THE SUPREME COURT OF OKLAHOMA
THAT THAT HAS BEEN THE UNIFORM ADMINISTRATIVE PRACTICE OF THE INSURANCE
COMMISSIONER SINCE 1909. 

IN 1941 OKLAHOMA ENACTED A LAW, EFFECTIVE APRIL 25, WHICH INCREASED
THE 2 PER CENT GROSS PREMIUM TAX TO 4 PER CENT.  FN2  OKLA. STAT. 1941,
TIT. 36, SEC. 104.  LIKE THE 2 PER CENT TAX, THIS NEW TAX IS APPLICABLE
ONLY TO FOREIGN INSURANCE COMPANIES, NOT TO DOMESTIC INSURANCE
COMPANIES.  APPELLANT REPORTED THE GROSS PREMIUMS COLLECTED IN OKLAHOMA
DURING THE CALENDAR YEAR 1941, PAID THE 4 PER CENT TAX UNDER PROTEST,
AND BROUGHT THIS SUIT TO RECOVER THE AMOUNT SO PAID.  APPELLANT
CHALLENGED THE CONSTITUTIONALITY OF BOTH THE 2 PER CENT AND THE 4 PER
CENT TAX.  THE SUPREME COURT OF OKLAHOMA ALLOWED RECOVERY OF THE TAXES
PAID AT THE INCREASED RATE ON PREMIUMS COLLECTED PRIOR TO THE EFFECTIVE
DATE OF THE ACT, APRIL 25, 1941.  BUT IT DISALLOWED RECOVERY FOR THE
BALANCE AGAINST THE CLAIM THAT THE EXACTION OF THE TAX FROM FOREIGN
INSURANCE COMPANIES WHILE DOMESTIC INSURANCE COMPANIES WERE EXEMPT
VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  156
P.2D 368.  THE CASE IS HERE BY APPEAL.  SEC. 237 JUDICIAL CODE, 28
U.S.C. SEC. 344. 

WE CAN PUT TO ONE SIDE SUCH CASES AS HANOVER INS. CO. V. HARDING, 272
U.S. 494, WHERE A FOREIGN INSURANCE COMPANY, HAVING OBTAINED AN
UNEQUIVOCAL LICENSE TO DO BUSINESS IN ILLINOIS AND BUILT UP A BUSINESS
THERE, WAS SUBSEQUENTLY SUBJECTED TO DISCRIMINATORY TAXATION.  IN THE
PRESENT CASE EACH ANNUAL LICENSE, PURSUANT TO THE PROVISIONS OF THE
OKLAHOMA CONSTITUTION, WAS GRANTED ON CONDITION (1) THAT APPELLANT
AGREE TO PAY ALL SUCH TAXES AND FEES AS THE LEGISLATURE MIGHT IMPOSE ON
FOREIGN INSURANCE COMPANIES AND (2) THAT A REFUSAL TO PAY SUCH TAXES OR
FEES SHOULD WORK A FORFEITURE OF THE LICENSE.  THE PAYMENT OF THE GROSS
PREMIUM TAX ON OR BEFORE THE EXPIRATION OF THE LICENSE YEAR WAS ALWAYS
A CONDITION PRECEDENT TO THE ISSUANCE OF THE LICENSE FOR THE FOLLOWING
YEAR.  ACCORDINGLY, APPELLANT, UNLIKE THE FOREIGN CORPORATION IN
HANOVER INS. CO. V. HARDING, SUPRA, NEVER OBTAINED FROM OKLAHOMA AN
UNEQUIVOCAL LICENSE TO DO BUSINESS THERE; IT AGREED TO PAY NOT ONLY FOR
THE RENEWAL BUT ALSO FOR THE RETENTION OF ITS ANNUAL LICENSE SUCH TAXES
AS OKLAHOMA MIGHT IMPOSE. 

IT HAS BEEN HELD BOTH BEFORE AND AFTER THE FOURTEENTH AMENDMENT THAT
A STATE MAY IMPOSE ON A FOREIGN CORPORATION FOR THE PRIVILEGE OF DOING
BUSINESS WITHIN ITS BORDERS MORE ONEROUS CONDITIONS THAN IT IMPOSES ON
DOMESTIC COMPANIES.  PAUL V. VIRGINIA, 8 WALL.  168; DUCAT V. CHICAGO,
10 WALL.  410; PHILADELPHIA FIRE ASSN. V. NEW YORK, 119 U.S. 110.  BUT
IT IS SAID THAT A STATE MAY NOT IMPOSE AN UNCONSTITUTIONAL CONDITION -
THAT IS IT MAY NOT EXACT AS A CONDITION AN INFRINGEMENT OR SACRIFICE OF
THE RIGHTS SECURED TO THE CORPORATION BY THE CONSTITUTION OF THE UNITED
STATES.  FN3 THE ARGUMENT APPARENTLY IS THAT SINCE APPELLANT IS
ENTITLED TO THE EQUAL PROTECTION OF THE LAWS, A CONDITION CANNOT BE
IMPOSED WHICH RESULTS IN ITS UNEQUAL AND DISCRIMINATORY TREATMENT. 

BUT THAT ARGUMENT PROVES TOO MUCH.  IF IT WERE ADOPTED, THEN THE LONG
ESTABLISHED RULE THAT A STATE MAY DISCRIMINATE AGAINST FOREIGN
CORPORATIONS BY ADMITTING THEM UNDER MORE ONEROUS CONDITIONS THAN IT
EXACTS FROM DOMESTIC COMPANIES WOULD GO INTO THE DISCARD.  MOREOVER, IT
HAS NEVER BEEN HELD THAT A STATE MAY NOT EXACT FROM A FOREIGN
CORPORATION AS A CONDITION TO ADMISSION TO DO BUSINESS THE PAYMENT OF A
TAX MEASURED BY THE BUSINESS DONE WITHIN ITS BORDERS.  SEE CONTINENTAL
ASSURANCE CO. V. TENNESSEE, 311 U.S. 5.  THAT WAS THE NATURE OF THE TAX
IMPOSED IN PHILADELPHIA FIRE ASSN. V. NEW YORK, SUPRA.  THAT COMPANY
WAS LICENSED TO DO BUSINESS IN NEW YORK UNDER A LAW WHICH REQUIRED IT
TO PAY SUCH A TAX AS ITS HOME STATE MIGHT IMPOSE ON NEW YORK COMPANIES
DOING BUSINESS THERE.  AFTER IT HAD QUALIFIED TO DO BUSINESS IN NEW
YORK, ITS HOME STATE EXACTED FROM FOREIGN CORPORATIONS A TAX OF 3 PER
CENT ON PREMIUMS RECEIVED IN THAT STATE.  NEW YORK ACCORDINGLY FOLLOWED
SUIT.  THE COURT SUSTAINED THE INCREASED TAX, SAYING THAT SINCE THE
LICENSE OF THE FOREIGN COMPANY WAS SUBJECT TO THE CONDITIONS PRESCRIBED
BY THE NEW YORK STATUTE, THE AMOUNT OF THE TAX COULD AT ANY TIME BE
INCREASED FOR THE FUTURE.  "THE STATE, HAVING THE POWER TO EXCLUDE
ENTIRELY, HAS THE POWER TO CHANGE THE CONDITIONS OF ADMISSION AT ANY
TIME, FOR THE FUTURE, AND TO IMPOSE AS A CONDITION THE PAYMENT OF A NEW
TAX, OR A FURTHER TAX, AS A LICENSE FEE.  IF IT IMPOSES SUCH LICENSE
FEE AS A PREREQUISITE FOR THE FUTURE, THE FOREIGN CORPORATION, UNTIL IT
PAYS SUCH LICENSE FEE, IS NOT ADMITTED WITHIN THE STATE OR WITHIN ITS
JURISDICTION.  IT IS OUTSIDE, AT THE THRESHOLD, SEEKING ADMISSION, WITH
CONSENT NOT YET GIVEN."  119 U.S. P. 119.  AND THE EQUAL PROTECTION
CLAUSE DOES NOT REQUIRE THE TAX OR RATE OF TAX EXACTED FROM A FOREIGN
CORPORATION AS A CONDITION OF ENTRY TO BE THE SAME AS THAT IMPOSED ON
DOMESTIC CORPORATIONS.  HANOVER INS. CO. V. HARDING, SUPRA, PP. 510
511. 

THE FACT THAT OKLAHOMA COLLECTS THE TAX AT THE END OF THE LICENSE
YEAR IS NOT MATERIAL.  THAT WAS DONE IN PHILADELPHIA FIRE ASSN. V. NEW
YORK, SUPRA.  THE CONTROLLING FACT IS THAT THE TAX THOUGH COLLECTED
LATER WAS LEVIED UPON THE PRIVILEGE OF ENTERING THE STATE AND ENGAGING
IN BUSINESS THERE.  FN4  CONTINENTAL ASSURANCE CO. V. TENNESSEE, SUPRA.
AFFIRMED. 

FN1  SEE OKLA. STAT. 1941, TIT. 36, SECS. 47, 101. 

FN2  THIS TAX TOGETHER WITH THE ENTRANCE FEE AND THE ANNUAL TAX ON
EACH AGENT IS "IN LIEU OF ALL OTHER TAXES OR FEES, AND THE TAXES AND
FEES OF ANY SUBDIVISION OR MUNICIPALITY OF THE STATE."  OKLA. STAT.
1941, TIT. 36, SEC. 104.  ON A FAILURE TO PAY THE TAX THE INSURANCE
COMMISSIONER "SHALL REVOKE THE CERTIFICATE OF AUTHORITY GRANTED TO THE
AGENT OR AGENTS OF THAT COMPANY TO TRANSACT BUSINESS IN THIS STATE." 
ID. 

FN3  SEE THE CASES REVIEWED IN HANOVER INS. CO. V. HARDING, 272 U.S.
494, 507-508; HENDERSON, THE POSITION OF FOREIGN CORPORATIONS IN
AMERICAN CONSTITUTIONAL LAW (1918), CH. VIII. 

FN4  IT IS NOT CONTENDED THAT APPELLANT IS ENGAGED IN INTERSTATE
COMMERCE.  HENCE WE DO NOT HAVE PRESENTED ANY QUESTION CONCERNING THE
EFFECT OF UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN., 322 U.S.
533, ON THE PROBLEM. 

MR. JUSTICE ROBERTS DISSENTS. 
..END :
























BORDEN CO. V. BORELLA, 325 U.S. 679 


NO. 688.  ARGUED APRIL 6, 1945.  - DECIDED JUNE 11, 1945.  - 145 F.2D
63, AFFIRMED. 


1.  A MANUFACTURING CORPORATION OWNED AND OPERATED AN OFFICE BUILDING
IN WHICH 58% OF THE RENTABLE SPACE WAS USED FOR ITS CENTRAL OFFICES,
WHERE ITS PRODUCTION OF GOODS FOR INTERSTATE COMMERCE WAS ADMINISTERED,
MANAGED AND CONTROLLED, ALTHOUGH THE GOODS WERE ACTUALLY PRODUCED AT
PLANTS LOCATED ELSEWHERE.  HELD THAT MAINTENANCE EMPLOYEES OF THE
BUILDING WERE ENGAGED IN AN "OCCUPATION NECESSARY TO THE PRODUCTION" OF
GOODS FOR INTERSTATE COMMERCE, WITHIN THE MEANING OF SEC. 3(J) OF THE
FAIR LABOR STANDARDS ACT, AND WERE THEREFORE COVERED BY THE ACT.  PP.
680, 684. 

2.  IN AN ECONOMIC SENSE, EXECUTIVE OFFICERS AND ADMINISTRATIVE
EMPLOYEES WORKING IN THE CENTRAL OFFICE BUILDING OF AN INDUSTRIAL
ORGANIZATION ARE ACTUALLY ENGAGED IN THE PRODUCTION OF GOODS, AND THE
MAINTENANCE EMPLOYEES WORKING IN SUCH A BUILDING ARE ENGAGED IN
OCCUPATIONS NECESSARY TO THAT PRODUCTION.  P. 683. 

3.  IN THE ABSENCE OF ANY CONTRARY EVIDENCE, IT CAN NOT BE ASSUMED
THAT CONGRESS IN THE FAIR LABOR STANDARDS ACT REFERRED TO PRODUCTION IN
OTHER THAN ITS ORDINARY AND COMPREHENSIVE ECONOMIC SENSE.  P. 684. 

BORDEN COMPANY V. BORELLA ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 706, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE DEFENDANT, 52 F.SUPP.  952, IN A SUIT TO RECOVER OVERTIME
COMPENSATION AND LIQUIDATED DAMAGES UNDER THE FAIR LABOR STANDARDS
ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

ONCE AGAIN, AS IN KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, WE ARE
REQUIRED TO CONSIDER THE APPLICATION OF THE FAIR LABOR STANDARDS ACT OF
1938  FN1  TO EMPLOYEES ENGAGED IN ACTIVITIES RELATING TO THE
MAINTENANCE AND OPERATION OF A BUILDING. 

IN THE KIRSCHBAUM CASE WE HELD THAT THE ACT DOES APPLY TO SUCH
EMPLOYEES WORKING IN A LOFT BUILDING IN WHICH LARGE QUANTITIES OF GOODS
FOR INTERSTATE COMMERCE ARE PHYSICALLY PRODUCED.  IN THE INSTANT CASE,
THE PORTERS, ELEVATOR OPERATORS AND NIGHT WATCHMEN IN QUESTION WORK IN
A 24-STORY OFFICE BUILDING IN THE BUSINESS DISTRICT OF NEW YORK CITY. 
THE BUILDING IS OWNED AND OPERATED BY THE PETITIONER, THE BORDEN
COMPANY, WHICH IS A NEW JERSEY CORPORATION ENGAGED IN THE BUSINESS OF
MANUFACTURING MILK PRODUCTS AND OTHER FOOD PRODUCTS.  PETITIONER
OCCUPIES APPROXIMATELY 17 OF THE 24 FLOORS AND 58% OF THE TOTAL
RENTABLE AREA.  THE REMAINDER OF THE OFFICE SPACE IS LEASED TO VARIOUS
TENANTS, NONE OF WHICH WAS FOUND BY THE DISTRICT COURT TO PRODUCE,
MANUFACTURE, HANDLE, PROCESS OR IN ANY OTHER MANNER WORK ON ANY GOODS
IN THE BUILDING.  FN2 

PETITIONER HAS MANUFACTURING PLANTS AND FACTORIES IN BOTH THE UNITED
STATES AND CANADA AND ITS PRODUCTS ARE SOLD IN LARGE VOLUMES THROUGHOUT
THIS AND OTHER COUNTRIES.  THESE ESTABLISHMENTS ARE ADMITTEDLY ENGAGED
IN THE PRODUCTION OF GOODS FOR INTERSTATE COMMERCE.  THE HEART OF THIS
INDUSTRIAL EMPIRE, HOWEVER, LIES IN THE CENTRAL OFFICE BUILDING IN NEW
YORK CITY.  HERE THE ENTIRE ENTERPRISE IS SUPERVISED, MANAGED AND
CONTROLLED. 

IN THIS BUILDING THE DIRECTORS MEET AND THE CORPORATE OFFICERS
CONCEIVE AND DIRECT THE POLICIES OF THE COMPANY.  ALTHOUGH
GEOGRAPHICALLY DIVORCED FROM THE MANUFACTURING PLANTS, EMPLOYEES
WORKING IN THIS BUILDING DICTATE, CONTROL AND COORDINATE EVERY STEP OF
THE MANUFACTURING PROCESSES IN THE INDIVIDUAL FACTORIES.  BY MEANS OF
DIRECT TELETYPE WIRES, THEY MAINTAIN DETAILED AND METICULOUS
SUPERVISION OF THE PLANTS, THE LOCAL SUPERINTENDENTS EXERCISING
DISCRETION ONLY IN THE CONDUCT OF ROUTINE MATTERS.  WHILE NO PRODUCTS
ARE ACTUALLY PROCESSED OR SOLD IN THE BUILDING, THE PURCHASE OF RAW
MATERIALS AND SUPPLIES, THE METHODS OF PRODUCTION, THE AMOUNTS TO BE
PRODUCED, THE QUANTITY AND CHARACTER OF THE LABOR, THE SAFETY MEASURES,
THE BUDGETING AND FINANCING, THE LEGAL MATTERS, THE LABOR POLICIES AND
THE MAINTENANCE OF THE PLANTS AND EQUIPMENT ARE ALL DIRECTED FROM THIS
BUILDING.  SUCH ARE THE ACTIVITIES OF PETITIONER'S CENTRAL OFFICE WHICH
IS MAINTAINED, SERVICED AND GUARDED BY THE RESPONDENT EMPLOYEES. 

THE RESPONDENTS BROUGHT THIS SUIT AGAINST PETITIONER TO RECOVER
OVERTIME COMPENSATION AND LIQUIDATED DAMAGES, PLUS REASONABLE COUNSEL
FEES.  THE DISTRICT COURT DENIED RELIEF, HOLDING THAT THEY WERE NOT
ENTITLED TO THE BENEFITS OF THE ACT UNDER THE RULE OF THE KIRSCHBAUM
CASE.  FN3  52 F.SUPP.  952.  THE SECOND CIRCUIT COURT OF APPEALS
REVERSED THE JUDGMENT.  145 F.2D 63.  WE TOOK THE CASE BECAUSE OF THE
ASSERTED CONFLICT WITH THE DECISION OF THE TENTH CIRCUIT COURT OF
APPEALS IN RUCKER V. FIRST NATIONAL BANK, 138 F.2D 699, AND BECAUSE OF
THE IMPORTANCE OF THE ISSUE AS TO THE APPLICATION OF THE KIRSCHBAUM
DOCTRINE TO SUCH FACTS AS ARE HERE PRESENTED. 

UNDER SEC. 7(A) OF THE ACT, OVERTIME COMPENSATION MUST BE PAID TO ALL
EMPLOYEES "ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE."  AS TO THE LATTER CATEGORY OF EMPLOYEES IT IS UNNECESSARY
THAT THEY DIRECTLY PARTICIPATE IN THE ACTUAL PROCESS OF PRODUCING GOODS
INASMUCH AS SEC. 3(J) PROVIDES THAT "FOR THE PURPOSES OF THIS ACT AN
EMPLOYEE SHALL BE DEEMED TO HAVE BEEN ENGAGED IN THE PRODUCTION OF
GOODS IF SUCH EMPLOYEE WAS EMPLOYED  ... IN ANY PROCESS OR OCCUPATION
NECESSARY TO THE PRODUCTION THEREOF, IN ANY STATE."  OUR PROBLEM THUS
IS TO DETERMINE WHETHER THE RESPONDENT MAINTENANCE EMPLOYEES ARE
ENGAGED IN A PROCESS OR OCCUPATION NECESSARY TO THE PRODUCTION OF GOODS
FOR COMMERCE SO AS TO COME WITHIN THE AMBIT OF SEC. 7(A). 

THE KIRSCHBAUM CASE MADE IT CLEAR THAT THE WORK OF MAINTENANCE
EMPLOYEES IN A BUILDING WHERE GOODS WERE PHYSICALLY MANUFACTURED OR
PROCESSED HAD "SUCH A CLOSE AND IMMEDIATE TIE WITH THE PROCESS OF
PRODUCTION FOR COMMERCE, AND WAS THEREFORE SO MUCH AN ESSENTIAL PART OF
IT, THAT THE EMPLOYEES ARE TO BE REGARDED AS ENGAGED IN AN OCCUPATION
'NECESSARY TO THE PRODUCTION OF GOODS FOR COMMERCE.'"  316 U.S. AT 525
526.  THE MAINTENANCE OF A SAFE, HABITABLE BUILDING, WITH ADEQUATE
LIGHT, HEAT AND POWER, WAS DEEMED NECESSARY TO THE PRODUCTION OF GOODS
FOR COMMERCE.  SEE ALSO WALTON V. SOUTHERN PACKAGE CORP., 320 U.S. 540;
ARMOUR & CO. V. WANTOCK, 323 U.S. 126.  THE ONLY DISTINCTION BETWEEN
THIS AND THE KIRSCHBAUM CASE LIES IN THE FACT THAT HERE THE EMPLOYEES
WORK IN A BUILDING WHERE PRODUCTION OF GOODS IS ADMINISTERED, MANAGED
AND CONTROLLED RATHER THAN CARRIED ON PHYSICALLY.  WE HOLD, HOWEVER,
THAT THIS DISTINCTION IS WITHOUT ECONOMIC OR STATUTORY SIGNIFICANCE AND
THAT IT CANNOT FORM THE BASIS FOR CONCLUDING THAT THE RESPONDENT
EMPLOYEES ARE ENGAGED IN OCCUPATIONS UNNECESSARY TO THE PRODUCTION OF
GOODS FOR COMMERCE. 

IN AN ECONOMIC SENSE, PRODUCTION INCLUDES ALL ACTIVITY DIRECTED TO
INCREASING THE NUMBER OF SCARCE ECONOMIC GOODS.  IT IS NOT SIMPLY THE
MANUAL, PHYSICAL LABOR INVOLVED IN CHANGING THE FORM OR UTILITY OF A
TANGIBLE ARTICLE.  SUCH LABOR IS BUT AN INTEGRAL PART OF THE
COORDINATED PRODUCTIVE PATTERN OF MODERN INDUSTRIAL ORGANIZATIONS. 
EQUALLY A PART OF THAT PATTERN ARE THE ADMINISTRATION, MANAGEMENT AND
CONTROL OF THE VARIOUS PHYSICAL PROCESSES TOGETHER WITH THE
ACCOMPANYING ACCOUNTING AND CLERICAL ACTIVITIES.  ECONOMIC PRODUCTION,
IN OTHER WORDS, REQUIRES PLANNING AND CONTROL AS WELL AS MANUAL LABOR. 
FN4  HE WHO CONCEIVES OR DIRECTS A PRODUCTIVE ACTIVITY IS AS ESSENTIAL
TO THAT ACTIVITY AS THE ONE WHO PHYSICALLY PERFORMS IT.  FROM A
PRODUCTIVE STANDPOINT, THEREFORE, PETITIONER'S EXECUTIVE OFFICERS AND
ADMINISTRATIVE EMPLOYEES WORKING IN THE CENTRAL OFFICE BUILDING ARE
ACTUALLY ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE JUST AS MUCH
AS ARE THOSE WHO PROCESS AND WORK ON THE TANGIBLE PRODUCTS IN THE
VARIOUS MANUFACTURING PLANTS.  AND SINCE THE RESPONDENT MAINTENANCE
EMPLOYEES STAND IN THE SAME RELATION TO THIS PRODUCTION AS DID THE
MAINTENANCE WORKERS IN THE KIRSCHBAUM CASE, IT FOLLOWS THAT THEY ARE
ENGAGED IN OCCUPATIONS "NECESSARY" TO SUCH PRODUCTION, THEREBY
QUALIFYING FOR THE BENEFITS OF THE FAIR LABOR STANDARDS ACT. 

WE FIND NOTHING IN THE ACT MILITATING AGAINST THIS CONCLUSION. 
LIMIT ITS MEANING TO PHYSICAL LABOR.  SECTION 3(J) IN PARTICULAR
DEFINES THE TERM "PRODUCED" NOT ONLY IN THE PHYSICAL SENSE OF
MANUFACTURING, MINING AND HANDLING BUT ALSO IN THE MORE GENERAL SENSE
OF PRODUCING OR "IN ANY OTHER MANNER" WORKING ON GOODS.  IN THE ABSENCE
OF ANY CONTRARY EVIDENCE WE ARE UNABLE TO ASSUME THAT CONGRESS USED THE
TERM IN OTHER THAN ITS ORDINARY AND COMPREHENSIVE ECONOMIC SENSE. 
INDEED, THE FACT THAT SEC. 13(A)(1) SPECIFICALLY EXCLUDES FROM THE
PROVISIONS OF SECS. 6 AND 7 THOSE EMPLOYEES EMPLOYED IN A BONA FIDE
EXECUTIVE, ADMINISTRATIVE OR PROFESSIONAL CAPACITY IS CLEARLY
CONSISTENT WITH THE CONCLUSION THAT THESE ACTIVITIES ARE INCLUDED
WITHIN THE CONCEPT OF PRODUCTION AS THAT TERM IS USED IN THE ACT AND
THAT FULL EFFECT SHOULD BE GIVEN THAT FACT UNLESS OTHERWISE PROVIDED. 
THUS WHERE, AS HERE, THE WORK OF EMPLOYEES IS ESSENTIAL OR NECESSARY TO
SUCH EXECUTIVE, ADMINISTRATIVE OR PROFESSIONAL ACTIVITIES OF A
PRODUCTIVE NATURE THE EMPLOYEES FALL WITHIN THE PURVIEW OF SEC. 7(A)
EVEN THOUGH THOSE DIRECTLY ENGAGED IN SUCH ACTIVITIES ARE BY EXPRESS
EXEMPTION PRECLUDED FROM SHARING IN ITS BENEFITS. 

NOR DO WE FIND IN THE INTERPRETATIVE PRINCIPLES LAID DOWN IN THE
KIRSCHBAUM CASE ANY BASIS FOR HOLDING THAT THE RESPONDENT EMPLOYEES ARE
NOT "NECESSARY" TO PETITIONER'S PRODUCTION.  SINCE THEY BEAR THE SAME
RELATION TO PRODUCTION AS DID THE MAINTENANCE EMPLOYEES IN THAT CASE
THEY CANNOT BE CONSIDERED ANY LESS ESSENTIAL TO PRODUCTION; NOR CAN
THIS CONCLUSION HAVE ANY DIFFERENT "IMPLICATIONS IN THE RELATION
BETWEEN STATE AND NATIONAL AUTHORITY."  316 U.S. AT 525.  PETITIONER'S
INDUSTRIAL ORGANIZATION IS SUCH THAT THE OPERATION AND MAINTENANCE OF A
CENTRAL OFFICE BUILDING IS ESSENTIAL TO THE ECONOMY, EFFICIENCY AND
CONTINUITY OF PRODUCTION.  IN SHORT, THIS OFFICE IS "PART OF AN
INTEGRATED EFFORT FOR THE PRODUCTION OF GOODS," ARMOUR & CO. V.
WANTOCK, SUPRA, 130, AND THE STATUTORY CONSEQUENCES THAT FLOW FROM THAT
FACT CANNOT BE AVOIDED. 

THE JUDGMENT BELOW IS AFFIRMED. 

FN1  52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. 

FN2  THE LEASING OF SPACE TO THESE TENANTS IS INCIDENTAL TO THE USE
OF THE BUILDING BY THE BORDEN COMPANY AND WE NEED NOT CONSIDER WHETHER
THE ACTIVITIES OF THE TENANTS ARE SUCH AS TO CONSTITUTE PRODUCTION OF
GOODS FOR COMMERCE. 

FN3  THE DISTRICT COURT ALSO RULED THAT THE PREPARATION AND DRAFTING
OF LABELS, PHOTOSTAT AND ADVERTISING MATERIAL IN PETITIONER'S CENTRAL
OFFICE DID NOT CONSTITUTE "PRODUCTION OF GOODS" WITHIN THE MEANING OF
THE ACT AND THAT THE CASE IN THIS RESPECT WAS CONTROLLED BY MCLEOD V.
THRELKELD, 319 U.S. 491, AND STOIKE V. FIRST NATIONAL BANK, 290 N.Y.
195, 48 N.E.2D 482.  THE CIRCUIT COURT OF APPEALS, HOWEVER, FOUND IT
UNNECESSARY TO PASS UPON THIS PHASE OF THE CASE.  WE LIKEWISE HAVE NO
OCCASION TO EXPRESS OUR VIEWS ON THIS MATTER SINCE THE DETERMINATION OF
THE MAIN ISSUE IS SUFFICIENT TO DISPOSE OF THIS CASE. 

FN4  IN THE WORDS OF THE COURT BELOW, "AS WAS OBSERVED OVER A CENTURY
AGO, EVERY PROCESS OF MANUFACTURE (INDEED FOR THAT MATTER EVERY PROCESS
BY WHICH MEN CAN AFFECT THE OUTSIDE WORLD AT ALL) MAY BE RESOLVED INTO
THE MOVEMENT OF THINGS IN SPACE, AND IT WOULD BE ABSURD TO SAY THAT,
ALTHOUGH WHAT THE ARTISANS DO IN THE FACTORY, OR THE DISPATCHING CLERKS
DO UPON THE SHIPPING PLATFORMS, IS 'NECESSARY' TO 'PRODUCTION,' THE
DIRECTIONS THEY RECEIVE THAT GOVERN ALL THE MOVEMENTS THEY IMPART, ARE
NOT 'NECESSARY.'"  145 F.2D AT 65. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. CHIEF JUSTICE STONE, DISSENTING. 

NO DOUBT THERE ARE PHILOSOPHERS WHO WOULD ARGUE, WHAT IS IMPLICIT IN
THE DECISION NOW RENDERED, THAT IN A COMPLEX MODERN SOCIETY THERE IS
SUCH INTERDEPENDENCE OF ITS MEMBERS THAT THE ACTIVITIES OF MOST OF THEM
ARE NECESSARY TO THE ACTIVITIES OF MOST OTHERS.  BUT I THINK THAT
CONGRESS DID NOT MAKE THAT PHILOSOPHY THE BASIS OF THE COVERAGE OF THE
FAIR LABOR STANDARDS ACT.  IT DID NOT, BY A "HOUSE-THAT-JACK-BUILT"
CHAIN OF CAUSATION, BRING WITHIN THE SWEEP OF THE STATUTE THE ULTIMATE
CAUSA CAUSARUM WHICH RESULT IN THE PRODUCTION OF GOODS FOR COMMERCE. 
INSTEAD IT DEFINED PRODUCTION AS A PHYSICAL PROCESS.  IT SAID IN SEC.
3(J) "'PRODUCED' MEANS PRODUCED, MANUFACTURED, MINED, HANDLED, OR IN
ANY OTHER MANNER WORKED ON" AND DECLARED THAT THOSE WHO PARTICIPATE IN
ANY OF THESE PROCESSES "OR IN ANY PROCESS OR OCCUPATION NECESSARY TO"
THEM ARE ENGAGED IN PRODUCTION AND SUBJECT TO THE ACT. 

IN KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, AFTER POINTING OUT THAT
CONGRESS DID NOT UNDERTAKE TO MAKE THE ACT APPLICABLE TO ALL
OCCUPATIONS WHICH AFFECT COMMERCE, WE HELD THAT THE SERVICES OF
ELEVATOR MEN AND OTHER SERVICE EMPLOYEES IN A MANUFACTURING LOFT
BUILDING, WHERE THOSE SERVICES CONTRIBUTED TO AND ASSISTED THE
MANUFACTURING PROCESS CARRIED ON THERE, WERE WITHIN THE ACT.  BUT
NOTHING THEN DECIDED OR SAID SEEMS TO ME TO JUSTIFY OUR SAYING THAT THE
ELEVATOR MEN AND OTHER MAINTENANCE EMPLOYEES IN AN OFFICE BUILDING, IN
WHICH NO MANUFACTURING IS DONE, EITHER PARTICIPATE IN OR ARE NECESSARY
TO THE MANUFACTURING PROCESS, BECAUSE TENANTS OF ITS BUILDING ARE
EXECUTIVE OR ADMINISTRATIVE OFFICERS OF A COMPANY WHICH DOES
MANUFACTURING ELSEWHERE. 

THE FACT THAT IT IS CONVENIENT OR EVEN NECESSARY FOR THE PRESIDENT OF
THE COMPANY TO RIDE IN AN ELEVATOR DOES NOT SEEM TO ME TO MEET THE
REQUIREMENT OF THE STATUTE THAT THE OCCUPATION MUST BE ONE NECESSARY TO
THE PHYSICAL PROCESS OF PRODUCTION.  THE STATUTE INCLUDES THOSE WHO ARE
NECESSARY TO THAT PROCESS, BUT IT DOES NOT ALSO INCLUDE THOSE WHO ARE
NECESSARY TO THEM.  THE MANUFACTURING PROCESS COULD PROCEED WITHOUT
MANY ACTIVITIES WHICH ARE NECESSARY OR CONVENIENT TO THE EXECUTIVE
OFFICERS OF A MANUFACTURING COMPANY BUT WHICH DO NOT IN ANY DIRECT OR
IMMEDIATE MANNER CONTRIBUTE TO THE MANUFACTURING PROCESS, AS DID THE
SERVICES RENDERED IN KIRSCHBAUM CO. V. WALLING, SUPRA. 

THE SERVICES RENDERED IN THIS CASE WOULD SEEM TO BE NO MORE RELATED,
AND NO MORE NECESSARY TO THE PROCESSES OF PRODUCTION THAN THE SERVICES
OF THE COOK WHO PREPARES THE MEALS OF THE PRESIDENT OF THE COMPANY OR
THE CHAUFFEUR WHO DRIVES HIM TO HIS OFFICE.  COMPARE MCLEOD V.
THRELKELD, 319 U.S. 491.  ALL ARE TOO REMOTE FROM THE PHYSICAL PROCESS
OF PRODUCTION TO BE SAID TO BE, IN ANY PRACTICAL SENSE, A PART OF OR
NECESSARY TO IT.    I WOULD REVERSE THE JUDGMENT. 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :

















GOLDSTONE V. UNITED STATES, 325 U.S. 687 


NO. 699.  ARGUED APRIL 26, 1945.  - DECIDED JUNE 11, 1945.  - 144 F.2D
373, AFFIRMED. 


DECEDENT PURCHASED FROM AN INSURANCE COMPANY TWO SINGLE-PREMIUM
CONTRACTS.  THE FIRST CONTRACT INSURED THE DECEDENT'S LIFE AND PROVIDED
FOR PAYMENT OF THE PROCEEDS TO HIS WIFE OR, IF SHE PREDECEASED HIM, TO
THEIR DAUGHTERS; AND IF THE DECEDENT SURVIVED ALL BENEFICIARIES, THE
PROCEEDS WERE TO BE PAID TO HIS EXECUTORS OR ADMINISTRATORS.  THE
SECOND CONTRACT, WHICH THE DECEDENT WAS REQUIRED TO PURCHASE IN LIEU OF
A PHYSICAL EXAMINATION, PROVIDED FOR SEMI-ANNUAL PAYMENTS TO THE
DECEDENT DURING HIS LIFETIME AND FOR PAYMENT OF A SPECIFIED AMOUNT HIS
WIFE UPON HIS DEATH; OR, IF SHE PREDECEASED HIM, TO THE DAUGHTERS; AND,
IF THEY WERE NOT THEN LIVING, TO HIS ESTATE.  EACH CONTRACT PROVIDED
THAT THE WIFE, DURING HER LIFETIME, SHOULD HAVE THE RIGHT TO ASSIGN IT,
TO BORROW MONEY ON IT, TO RECEIVE DIVIDENDS, TO CHANGE THE
BENEFICIARIES, AND TO SURRENDER THE CONTRACT AND OBTAIN ITS CASH
SURRENDER VALUE.  IF THE WIFE PREDECEASED THE DECEDENT, THOSE POWERS
WERE TO PASS TO HIM.  DECEDENT WAS 63 YEARS OF AGE WHEN THE CONTRACTS
WERE PURCHASED, AND DIED NEARLY FIVE YEARS LATER, SURVIVED BY HIS WIFE
AND DAUGHTERS.  HIS WIFE HAD NOT SURRENDERED, ASSIGNED OR ALIENATED
EITHER CONTRACT PRIOR TO HIS DEATH.  HELD: 

1.  THE CONTRACTS, WHICH MUST BE CONSIDERED TOGETHER, INVOLVED NO
TRUE INSURANCE RISK; THEREFORE SEC. 302(G) OF THE REVENUE ACT OF 1926,
RELATING TO AMOUNTS RECEIVABLE "AS INSURANCE UNDER POLICIES TAKEN OUT
BY THE DECEDENT UPON HIS OWN LIFE," WAS INAPPLICABLE.  HELVERING V. LE
GIERSE, 312 U.S. 531.  P. 690. 

2.  FOR PURPOSE OF THE FEDERAL ESTATE TAX, THE PROCEEDS OF THE
CONTRACTS WERE INCLUDIBLE IN THE GROSS ESTATE OF THE DECEDENT, UNDER
SEC. 302(C) OF THE REVENUE ACT OF 1926, AS AN INTEREST OF WHICH THE
DECEDENT HAD MADE AN INTER VIVOS TRANSFER "INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT OR AFTER HIS DEATH."  P. 690. 

3.  THE DECEDENT'S DEATH WAS THE DECISIVE FACT THAT TERMINATED ALL OF
HIS POTENTIAL RIGHTS AND INSURED THE COMPLETE RIPENING OF THE WIFE'S
INTERESTS.  THE TRANSFER OF THE PROCEEDS OF THE CONTRACTS HAVING BEEN
EFFECTUATED FINALLY AND DEFINITELY AT THE DECEDENT'S DEATH, SEC. 302(C)
REQUIRES THAT THOSE PROCEEDS BE INCLUDED WITHIN THE DECEDENT'S GROSS
ESTATE.  P. 692. 

4.  THE ESSENTIAL ELEMENT HERE IS THE DECEDENT'S POSSESSION OF A
REVERSIONARY INTEREST AT THE TIME OF HIS DEATH, WHICH POSTPONED UNTIL
THEN THE DETERMINATION OF THE ULTIMATE POSSESSION OR ENJOYMENT OF THE
PROPERTY.  THE EXISTENCE OF SUCH AN INTEREST CONSTITUTES AN IMPORTANT
INCIDENT OF OWNERSHIP SUFFICIENT IN ITSELF TO SUPPORT THE IMPOSITION OF
THE ESTATE TAX.  HELVERING V. HALLOCK, 309 U.S. 106.  P. 692. 

5. IMPOSITION AND COMPUTATION OF THE FEDERAL ESTATE TAX ARE BASED
UPON INTERESTS IN ACTUAL EXISTENCE AT THE TIME OF THE DECEDENT'S
DEATH.  EVENTS WHICH WOULD HAVE EXTINGUISHED THE DECEDENT'S
REVERSIONARY INTEREST HAD THEY OCCURRED, BUT WHICH DID NOT OCCUR, MUST
BE IGNORED.  P. 693. 

GOLDSTONE ET AL., EXECUTORS, V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 324 U.S. 833, TO REVIEW THE AFFIRMANCE OF A JUDGMENT, 52
F.SUPP.  704, DISMISSING THE COMPLAINT IN A SUIT FOR A REFUND OF
FEDERAL ESTATE TAXES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER THE PROCEEDS OF CERTAIN CONTRACTS
PAYABLE UPON THE DEATH OF THE DECEDENT TO HIS WIFE ARE INCLUDIBLE IN
HIS GROSS ESTATE FOR ESTATE TAX PURPOSES UNDER SECTION 302(C) OF THE
REVENUE ACT OF 1926, AS AMENDED, INTERNAL REVENUE CODE SEC. 811(C). 
FN1 

ON JUNE 29, 1933, THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED
STATES ISSUED TWO CONTRACTS FOR WHICH THE DECEDENT PAID SUMS
AGGREGATING $26,500: 

(1)  THE FIRST CONTRACT, FOR WHICH THE DECEDENT PAID A SINGLE PREMIUM
OF $14,357.08, INSURED THE DECEDENT'S LIFE FOR $18,928, PAYABLE UPON
DEATH TO HIS WIFE OR, IF SHE PREDECEASED HIM, TO THEIR DAUGHTERS.  IF
ALL THE BENEFICIARIES PREDECEASED THE DECEDENT, THE PROCEEDS OF THE
CONTRACT WERE TO BE PAID TO HIS EXECUTORS OR ADMINISTRATORS.  IN LIEU
OF A PHYSICAL EXAMINATION IN CONNECTION WITH THE ISSUANCE OF THIS
CONTRACT, DECEDENT WAS REQUIRED TO PURCHASE A SECOND OR AN ANNUITY
CONTRACT. 

(2)  UNDER THE ANNUITY CONTRACT, THE DECEDENT PAID A SINGLE PREMIUM
OF $12,142.92.  THE CONTRACT PROVIDED FOR SEMI-ANNUAL PAYMENTS OF
$386.51 TO BE MADE TO THE DECEDENT DURING HIS LIFETIME AND FOR PAYMENT
OF $6,071.46 TO HIS WIFE UPON HIS DEATH OR, IF SHE PREDECEASED HIM, TO
THEIR DAUGHTERS OR, IF THEY WERE DEAD, TO HIS ESTATE. 

BY THE TERMS OF EACH CONTRACT THE WIFE HAD THE UNRESTRICTED RIGHT TO
ASSIGN IT, TO BORROW MONEY ON IT, TO RECEIVE DIVIDENDS, TO CHANGE THE
BENEFICIARIES AND TO SURRENDER THE CONTRACT AND OBTAIN THE SURRENDER
VALUE THEREOF.  THE CONTRACTS DESIGNATED HER AS THE "OWNER" OR
"PURCHASER," THE DECEDENT BEING CALLED THE "INSURED" OR "ANNUITANT." 
IN THE EVENT THAT THE WIFE SHOULD PREDECEASE THE DECEDENT, THE
CONTRACTS PROVIDED THAT ALL OF THE ENUMERATED POWERS WERE TO VEST IN
THE DECEDENT TO THE EXTENT THAT SUCH POWERS HAD NOT OTHERWISE BEEN
EXERCISED BY THE WIFE. 

THE DECEDENT WAS 63 YEARS OLD WHEN THE CONTRACTS WERE ISSUED.  HE
DIED NEARLY FIVE YEARS LATER, ON FEBRUARY 23, 1938, SURVIVED BY HIS
WIFE AND DAUGHTERS.  HIS WIFE HAD NOT SURRENDERED, ASSIGNED OR
ALIENATED EITHER CONTRACT PRIOR TO HIS DEATH.  THE EQUITABLE LIFE
ASSURANCE SOCIETY THEREUPON PAID THE WIDOW $6,071.46 UNDER THE ANNUITY
CONTRACT, $18,928 UNDER THE LIFE CONTRACT AND $182.24 AS ACCUMULATED
DIVIDENDS, MAKING A TOTAL OF $25,181.70. 

ON THESE FACTS THE COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT
THE PROCEEDS OF THE TWO CONTRACTS WERE INCLUDIBLE IN DECEDENT'S ESTATE
FOR ESTATE TAX PURPOSES.  THE PETITIONERS, AS EXECUTORS OF THE ESTATE,
WERE ASSESSED A DEFICIENCY OF $5,376.11.  AFTER PAYING THAT AMOUNT THEY
FILED A CLAIM FOR REFUND.  THE CLAIM WAS REJECTED.  THEY THEN BROUGHT
THIS SUIT FOR REFUND.  THE DISTRICT COURT SUSTAINED THE ACTION OF THE
COMMISSIONER AND DISMISSED THE COMPLAINT.  52 F.SUPP.  704.  THE SECOND
CIRCUIT COURT OF APPEALS AFFIRMED THIS JUDGMENT.  144 F.2D 373.  AN
APPARENT CONFLICT OF AUTHORITY AMONG LOWER COURTS ON THE QUESTION
PRESENTED LED US TO GRANT CERTIORARI.  FN2 

HELVERING V. LE GIERSE, 312 U.S. 531, MAKES IT PLAIN THAT THESE TWO
CONTRACTS, WHICH MUST BE CONSIDERED TOGETHER, CONTAIN NONE OF THE TRUE
ELEMENTS OF INSURANCE RISK.  SECTION 302(G) OF THE ACT, RELATING TO
AMOUNTS RECEIVABLE "AS INSURANCE UNDER POLICIES TAKEN OUT BY THE
DECEDENT UPON HIS OWN LIFE," IS THEREFORE INAPPLICABLE.  THE SOLE
QUESTION, THEN, IS WHETHER THE PROCEEDS OF THE CONTRACTS ARE INCLUDIBLE
IN THE DECEDENT'S GROSS ESTATE UNDER SEC. 302(C) AS THE SUBJECT OF A
TRANSFER IN TENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR
AFTER THE DECEDENT'S DEATH.  THAT QUESTION WE ANSWER IN THE
AFFIRMATIVE. 

106, REACHES ALL INTER VIVOS TRANSFERS WHICH MAY BE RESORTED TO, AS A
SUBSTITUTE FOR A WILL, IN MAKING  DISPOSITIONS OF PROPERTY OPERATIVE AT
DEATH.  IT THUS SWEEPS INTO THE GROSS ESTATE ALL PROPERTY THE ULTIMATE
POSSESSION OR ENJOYMENT OF WHICH IS HELD IN SUSPENSE UNTIL THE MOMENT
OF THE DECEDENT'S DEATH OR THEREAFTER.  FIDELITY-PHILADELPHIA TRUST CO.
V. ROTHENSIES, 324 U.S. 108, 111.  IN SO DOING, SEC. 302(C) PIERCES ALL
THE VERBIAGE OF "UNWITTY DIVERSITIES OF THE LAW OF PROPERTY." 
HELVERING V. HALLOCK, SUPRA, 118.  TESTAMENTARY DISPOSITIONS OF AN
INTER VIVOS NATURE CANNOT ESCAPE THE FORCE OF THIS SECTION BY HIDING
BEHIND LEGAL NICETIES CONTAINED IN DEVICES AND FORMS CREATED BY
CONVEYANCERS. 

IN THIS INSTANCE THE DECEDENT CAREFULLY PROCURED THE ISSUANCE OF TWO
CONTRACTS IN HIS WIFE'S NAME WITHOUT POSSESSING FOR A MEASURABLE PERIOD
MOST OF THE USUAL ATTRIBUTES OF OWNERSHIP OVER THE CONTRACTS.  BUT THIS
PROCEDURE DOES NOT CONCEAL THE FACT THAT DECEDENT USED THESE CONTRACTS
AS A MEANS OF EFFECTING A TRANSFER OF APPROXIMATELY $25,000 OF HIS
ESTATE TO THE NATURAL OBJECTS OF HIS BOUNTY.  NOR DOES IT NEGATIVE THE
FACT THAT THIS INTER VIVOS TRANSFER POSSESSED ALL THE INDICIA OF A
TESTAMENTARY DISPOSITION.  THERE WAS, IN OTHER WORDS, A "TRANSFER OF
PROPERTY PROCURED THROUGH EXPENDITURES BY THE DECEDENT WITH THE
PURPOSE, EFFECTED AT HIS DEATH, OF HAVING IT PASS TO ANOTHER."  CHASE
NATIONAL BANK V. UNITED STATES, 278 U.S. 327, 337.  SECTION 302(C) MUST
THEREFORE BE BROUGHT TO BEAR. 

THE DECEDENT, IN MAKING DISPOSITION OF $25,000 OF HIS PROPERTY
THROUGH THESE TWO CONTRACTS, RETAINED A VALUABLE INTEREST IN THAT
AMOUNT WHICH WAS NOT EXTINGUISHED UNTIL HE DIED.  HE RETAINED NOT ONLY
THE RIGHT TO SEMI-ANNUAL PAYMENTS UNDER THE ANNUITY CONTRACT BUT ALSO A
CONTINGENT REVERSIONARY INTEREST IN THE ENTIRE PROCEEDS OF BOTH
CONTRACTS.  HAD HE SURVIVED HIS WIFE HE COULD HAVE EXERCISED THE
ATTRIBUTES OF OWNERSHIP OVER THE CONTRACTS, CHANGING THE BENEFICIARIES
OR SURRENDERING THE CONTRACTS AS HE SAW FIT.  IF HE HAD SURVIVED BOTH
HIS WIFE AND HIS DAUGHTERS THE PROCEEDS OF THE TWO CONTRACTS WOULD
AUTOMATICALLY HAVE BEEN PAYABLE TO HIS ESTATE WHEN HE DIED.  THUS THE
ULTIMATE DISPOSITION OF THE PROCEEDS OF THE CONTRACTS WAS SUSPENDED
UNTIL THE MOMENT OF DECEDENT'S DEATH.  ONLY THEN DID THE RESPECTIVE
INTERESTS OF THE WIFE AND DAUGHTERS BECOME FIXED; ONLY THEN WERE THEIR
INTERESTS FREED FROM THE CONTINGENCY OF THE DECEDENT'S SURVIVAL.  HIS
DEATH WAS THE DECISIVE FACT THAT TERMINATED ALL OF HIS POTENTIAL RIGHTS
AND INSURED THE COMPLETE RIPENING OF THE WIFE'S INTERESTS.  THE
TRANSFER OF THE PROCEEDS OF THE CONTRACTS HAVING BEEN EFFECTUATED
FINALLY AND DEFINITELY AT THE DECEDENT'S DEATH, AS IN THE HALLOCK CASE,
SEC. 302(C) REQUIRES THAT THOSE PROCEEDS BE INCLUDED WITHIN THE
DECEDENT'S GROSS ESTATE. 

THIS CONCLUSION IS UNALTERED BY THE FACT THAT THE WIFE HAD THE
UNRESTRICTED POWER DURING THE DECEDENT'S LIFETIME TO EXERCISE MANY
IMPORTANT INCIDENTS OF OWNERSHIP OVER THE CONTRACTS, INCLUDING THE
POWER TO TERMINATE THE DECEDENT'S REVERSIONARY INTEREST IN THE
PROCEEDS.  WHATEVER THE LIKELIHOOD OF THE EXERCISE OF THIS POWER, IT IS
A FACT THAT THE WIFE DID NOT CHANGE THE BENEFICIARIES OR SURRENDER THE
CONTRACTS SO AS TO DESTROY DECEDENT'S REVERSIONARY INTEREST.  THE
STRING THAT THE DECEDENT RETAINED OVER THE PROCEEDS OF THE CONTRACTS
UNTIL THE MOMENT OF HIS DEATH WAS NO LESS REAL OR SIGNIFICANT BECAUSE
OF THE WIFE'S UNUSED POWER TO SEVER IT AT ANY TIME. 

THE ESSENTIAL ELEMENT IN THIS CASE, THEREFORE, IS THE DECEDENT'S
POSSESSION OF A REVERSIONARY INTEREST AT THE TIME OF HIS DEATH,
DELAYING UNTIL THEN THE DETERMINATION OF THE ULTIMATE POSSESSION OR
ENJOYMENT OF THE PROPERTY.  THE EXISTENCE OF SUCH AN INTEREST
CONSTITUTES AN IMPORTANT INCIDENT OF OWNERSHIP SUFFICIENT BY ITSELF TO
SUPPORT THE IMPOSITION OF THE ESTATE TAX.  HELVERING V. HALLOCK, SUPRA.
THE INDEFEASIBILITY OF THAT INTEREST PRIOR TO DEATH OR THE DECEDENT'S
POSSESSION OF OTHER POWERS OF OWNERSHIP IS UNNECESSARY AND INDECISIVE
OF ESTATE TAX LIABILITY. 

THE DISAPPEARANCE OF A DECEDENT'S REVERSIONARY INTEREST, TOGETHER
WITH THE RESULTING ESTATE TAX LIABILITY, PRIOR TO DEATH THROUGH EVENTS
BEYOND THE DECEDENT'S CONTROL IS A POSSIBILITY IN MANY SITUATIONS SUCH
AS THE ONE IN ISSUE.  FN3  LIKEWISE A REVERSIONARY INTEREST MAY BECOME
VESTED PRIOR TO A DECEDENT'S DEATH BECAUSE OF THE OCCURRENCE OF OTHER
EVENTS BEYOND THE REALM OF THE DECEDENT'S VOLITION AND UNCONNECTED IN
ANY WAY WITH HIS DEATH.  BUT THE IMPOSITION AND COMPUTATION OF THE
ESTATE TAX ARE BASED UPON THE INTERESTS IN ACTUAL EXISTENCE AT THE TIME
OF THE DECEDENT'S DEATH.  IT FOLLOWS THAT ONLY THOSE EVENTS THAT
ACTUALLY OCCURRED PRIOR TO THAT MOMENT CAN BE CONSIDERED IN DETERMINING
THE EXISTENCE AND VALUE OF THE TAXABLE INTERESTS.  EVENTS THAT MIGHT
HAVE BUT FAILED TO TAKE PLACE SO AS TO ERASE A DECEDENT'S REVERSIONARY
INTEREST MUST BE IGNORED; SUCH UNREALIZED POSSIBILITIES, IF SIGNIFICANT
AT ALL, ONLY ADD TO THE REMOTENESS OF THE REVERSIONARY INTEREST. 

IN OUR VIEW OF THE CASE WE NEED NOT CONSIDER THE ALTERNATIVE ARGUMENT
URGED BY THE UNITED STATES TO THE EFFECT THAT THE SPECIFIC AMENDMENTS
TO SEC. 302(C) ARE ALSO APPLICABLE SINCE THE DECEDENT ACTUALLY RECEIVED
AN ANNUAL RETURN FROM THE CONTRACTS FOR A PERIOD WHICH DID NOT IN FACT
END BEFORE HIS DEATH.  NOR DO WE REACH ANY QUESTIONS OF VALUATION OF
THE DECEDENT'S REVERSIONARY INTEREST SUCH AS THOSE WHICH WERE DECIDED
IN FIDELITY-PHILADELPHIA TRUST CO. V. ROTHENSIES, SUPRA, AND
COMMISSIONER V. ESTATE OF FIELD, 324 U.S. 113.  AFFIRMED. 

FN1  "THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE
DETERMINED BY INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL
PROPERTY, REAL OR PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED,
EXCEPT REAL PROPERTY SITUATED OUTSIDE OF THE UNITED STATES - 

     .         .         .         .         . 

"(C) TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS
AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, IN CONTEMPLATION OF
OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH  ..." 

FN2  THE JUDGMENT BELOW IS STATED BY THE UNITED STATES TO BE
INCONSISTENT WITH THE RESULT REACHED IN LLOYD'S ESTATE V. COMMISSIONER,
141 F.2D 758(C.C.A. 3) AND TO BE IN HARMONY WITH BAILEY V. UNITED
STATES, 31 F.SUPP.  778(CT. CLS.).  THE UNITED STATES ALSO CLAIMS THAT
THE RESULT BELOW IS INCONSISTENT WITH THE SAME COURT'S PRIOR AFFIRMANCE
OF ESTATE OF BALLARD V. COMMISSIONER, 47 B.T.A. 784, AFFIRMED, 138 F.2D
512(C.C.A. 2).  IN VIEW OF THE MANNER OF OUR DISPOSITION OF THE INSTANT
CASE, HOWEVER, WE HAVE NO OCCASION TO DETERMINE WHETHER THESE ASSERTED
CONFLICTS EXIST OR WHETHER THE DECISION HERE NECESSARILY CONTROLS THE
FACTUAL SITUATIONS PRESENTED IN THESE OTHER CASES. 

FN3  THUS, IN FIDELITY-PHILADELPHIA TRUST CO. V. ROTHENSIES, 324 U.S.
108, THE DECEDENT'S CONTINGENT POWER OF APPOINTMENT WAS EXERCISABLE
ONLY IF HER TWO DAUGHTERS DIED BEFORE HER AND LEFT NO SURVIVING
DESCENDANTS.  IF THE DAUGHTERS DIED FIRST BUT LEFT SURVIVING
DESCENDANTS, IT WOULD BE CERTAIN BEFORE THE DECEDENT'S DEATH THAT HER
POWER OF APPOINTMENT WOULD BE NUGATORY.  BUT SUCH A CONTINGENCY DID NOT
HAPPEN.  AT THE TIME WHEN THE DECEDENT DIED THERE WAS STILL THE
POSSIBILITY THAT HER POWER OF APPOINTMENT MIGHT BE EFFECTIVE.  THE FACT
THAT THE POWER OF APPOINTMENT MIGHT HAVE BEEN DESTROYED PRIOR TO THE
DECEDENT'S DEATH DID NOT PREVENT THE IMPOSITION OF THE ESTATE TAX.  THE
DECEDENT'S DEATH WAS STILL THE DECISIVE FACTOR WHICH ENLARGED AND
MATURED THE INTERESTS OF THE DAUGHTERS. 

MR. JUSTICE ROBERTS. 

I THINK THE JUDGMENT SHOULD BE REVERSED. 

THE COURT'S DECISION REPUDIATES HELVERING V. HALLOCK, 309 U.S. 106,
AND OTHER CASES WHICH HAVE APPLIED ITS REASONING.  WE HAVE RECENTLY
BEEN TOLD THAT THE QUESTION WHETHER, WITHIN THE INTENT OF THE REVENUE
ACTS, A TRANSFER IS "INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT
AT OR AFTER" THE GRANTOR'S DEATH IS TO BE DECIDED NOT BY THE
TERMINOLOGY OF CONVEYANCING OR THE ANCIENT REAL PROPERTY LAW RESPECTING
VESTED AND CONTINGENT ESTATES, POSSIBILITIES OF REVERTER, AND THE
LIKE.  WE HAVE BEEN WARNED THAT THE TAXPAYER AND HIS ESTATE MUST HAVE
REGARD TO SUBSTANCE RATHER THAN TO FORM, IN ANSWERING THE QUESTION
WHETHER THE TRANSFER BECOMES COMPLETE ONLY AT THE TRANSFEROR'S DEATH. 
I HAVE ASSUMED THAT THE TAX GATHERER COULD NOT IGNORE THE SAME TEST. 
HERE I THINK THE COMMISSIONER IS PERMITTED TO DO JUST THAT.  IN ORDER
TO REACH SUBSTANCE IN DISREGARD OF FORM, THIS COURT ONLY RECENTLY HAS
TREATED TWO INDEPENDENT CONTRACTS, ONE FOR INSURANCE AND THE OTHER FOR
AN ANNUITY, AS CONSTITUTING BUT A SINGLE TRANSACTION AND AMOUNTING TO A
GIFT IN FAVOR OF THE BENEFICIARY OF THE INSURANCE POLICY.  HELVERING V.
LE GIERSE, 312 U.S. 531. 

THE TRANSACTION UNDER REVIEW IN THE PRESENT CASE IS A COMMON ONE. 
WHERE AN APPLICANT FOR INSURANCE IS BEYOND THE AGE AT WHICH A COMPANY
WILL UNDERWRITE THE RISK, LIFE INSURANCE MAY BE OBTAINED BY PURCHASING
AN ANNUITY, WHICH DIMINISHES OR ELIMINATES RISK OF SERIOUS LOSS TO THE
COMPANY BY THE EARLY DEATH OF THE INSURED.  HERE THE DECEDENT, A MAN OF
ABOUT SIXTY-THREE, IN GOOD HEALTH, AND WITH APPARENTLY NO CONTEMPLATION
OF EARLY DEATH, CONSUMMATED SUCH AN ARRANGEMENT WITH AN INSURER.  I
THINK IT DEMONSTRABLE THAT THE TRANSACTION AS RESPECTS THE BENEFICIARY,
HIS WIFE, WAS NO DIFFERENT IN SUBSTANCE OR EFFECT THAN AN OUTRIGHT GIFT
OF MONEY OR PROPERTY TO HER.    THE DECEDENT PAID SOME $14,000 AS A
SINGLE PREMIUM FOR A POLICY BY WHICH THE INSURER AGREED TO PAY SOME
$18,000 TO THE BENEFICIARIES NAMED, THAT IS, TO HIS WIFE, IF LIVING, IF
SHE WERE DEAD, TO HIS TWO DAUGHTERS.  THE POLICY WAS ISSUED TO THE WIFE
AND DESIGNATED HER AS THE OWNER OF IT.  SHE HAD THE FOLLOWING POWERS:
TO CHANGE THE BENEFICIARY WITHOUT THE HUSBAND'S CONSENT, TO SURRENDER
THE CONTRACT, ASSIGN OR PLEDGE IT WITHOUT HIS CONSENT OR THAT OF ANY
SUBSEQUENT OWNER, CHANGE THE FORM OR PLAN OF INSURANCE (WITHOUT
REFERENCE TO THE INSURED, ANY BENEFICIARY OR SUBSEQUENT OWNER), TO
SURRENDER THE CONTRACT AND RECEIVE A SPECIFIED CASH VALUE, TO BORROW ON
THE POLICY AT HER SOLE ELECTION, TO RECEIVE THE DIVIDENDS IN CASH OR
ACCUMULATE THEM TO PURCHASE ADDITIONAL INSURANCE, IN EITHER CASE FOR
HER OWN USE.  IF SHE EXERCISED NONE OF THESE RIGHTS THE DECEDENT WOULD
HAVE BECOME, AT HER DEATH, IF HE WERE THEN LIVING, THE OWNER OF THE
POLICY IN HER PLACE AND STEAD. 

IT IS EVIDENT THAT IF THE POLICY BE TREATED AS AN ITEM OF PROPERTY,
SHE HAD SOLE, FULL, AND UNTRAMMELLED DOMINION OVER IT AND ITS
PROCEEDS.  SHE WAS IN TRUTH, AND NOT BY ANY FICTION, ABSOLUTE OWNER OF
THE PROPERTY.  I CANNOT DISTINGUISH THIS CASE FROM ONE IN WHICH A
HUSBAND, NOT IN CONTEMPLATION OF DEATH, CONVEYS MONEY OR PROPERTY, REAL
OR PERSONAL, IN FEE SIMPLE TO HIS WIFE OR TO ANY OTHER RELATIVE.  FOR,
IN SUCH A CASE, ALL, OR A PORTION OF THE PROPERTY, MAY, UPON THE DEATH
OF THE DONEE, DESCEND TO THE DONOR UNDER THE INTESTATE LAWS, AND BOTH
PARTIES TO THE TRANSACTION KNOW THIS TO BE THE FACT.  NOTWITHSTANDING
THEN THAT, UNDER THE LAW, THE WIFE MAY, UNTIL HER DEATH, SPEND, CONVEY,
MORTGAGE OR DISPOSE OF THE PROPERTY, I SUPPOSE IT WILL BE HELD THAT,
INASMUCH AS ALL OR SOME OF IT WILL DESCEND TO HIM IF SHE OMITS SO TO
DO, HE WILL BE HELD, WITHIN THE MEANING OF THE STATUTE, TO HAVE MADE A
CONVEYANCE TO TAKE EFFECT AT HIS DEATH BECAUSE THE ONLY WAY HE CAN
AVOID INHERITING IT FROM THE DONEE IS TO DIE.  APPARENTLY COURTS ARE
ONLY TO LOOK TO THE REALITIES OF THE SITUATION, THE ESSENTIAL NATURE OF
THE OWNERSHIP OF THE DONEE, WHERE THAT SPELLS TAXABILITY, BUT ARE TO
IGNORE THE TRUE CHARACTER OF THE DONEE'S UNTRAMMELLED POWER OVER THE
SUBJECT MATTER OF THE GIFT WHERE SO TO DO SPELLS TAXABILITY. 

FOR THE ANNUITY PURCHASED BY THE DECEDENT HE GAVE HIS CHECK FOR THE
SUM OF $12,000.  THE CONTRACT DESCRIBES HIS WIFE AS THE PURCHASER. 
EXCEPT FOR AN ANNUITY OF A FEW HUNDRED DOLLARS PER ANNUM, PAYABLE TO
THE DECEDENT AND SUBJECT TO REDUCTION UNDER THE TERMS OF THE CONTRACT,
THE WIFE'S RIGHTS WERE AGAIN ABSOLUTE.  UPON THE DEATH OF THE DECEDENT
SHE WAS TO RECEIVE A DEATH BENEFIT OF SOME $6,000, BUT SHE MIGHT OBTAIN
THIS BENEFIT AT ANY TIME DURING HIS LIFE, WITHOUT HIS CONSENT, AND
WITHOUT OTHER CONDITION, UPON MERE SURRENDER OF THE CONTRACT.  SUCH
SURRENDER SHE MIGHT MAKE WITHOUT ANYONE'S CONSENT.  SHE MIGHT, WITHOUT
DECEDENT'S CONSENT, CHANGE TO ANOTHER FORM OF PLAN OR CONTRACT, OR
CHANGE THE BENEFICIARY, OR ASSIGN THE CONTRACT, MIGHT RECEIVE THE
DIVIDENDS OR ALLOW THEM TO ACCUMULATE, BORROW MONEY ON THE CONTRACT,
AND ELECT A MODE OF SETTLEMENT THEREUNDER.  HER ASSIGNMENT OF THE
CONTRACT MIGHT, IF SHE SO ELECTED, EXCLUDE ALL RIGHTS OF ANY
BENEFICIARY OR ANNUITANT UNDER IT.  HERE AGAIN, A SMALL ANNUITY,
PAYABLE TO THE DECEDENT ONLY SO LONG AS HIS WIFE PERMITTED, WAS THE
SOLE ELEMENT OF INTEREST REMAINING IN THE DECEDENT.  THE PROPERTY WAS
SUBJECT TO THE WIFE'S DOMINION AND HERS ALONE. 

TO SAY THAT THE DECEDENT HERE RETAINED AN INTEREST WHICH PASSED AT
HIS DEATH IS TO FLY IN THE FACE OF THE FACTS.  IT IS TO SAY THAT,
ALTHOUGH WE KNOW THE DONEE WAS AS FREE TO DEAL WITH THE PROPERTY AS IF
SHE WERE DESCRIBED, IN ACCORDANCE WITH THE NICETIES OF CONVEYANCING, OR
THE ANCIENT LAW OF ESTATES, AS THE OWNER IN FEE SIMPLE, YET THIS
REALITY IS TO BE IGNORED FOR THE PURPOSE OF FINDING THAT THE DECEDENT
GAVE HER SOMETHING LESS THAN ABSOLUTE AND FULL OWNERSHIP OF THE
PROPERTY BY ENABLING HER TO DO EXACTLY AS SHE PLEASED WITH IT; THAT THE
SO-CALLED "STRING" WHICH HE RETAINED UPON THE PROPERTY NEED NOT HAVE
THE QUALITY OF A TIE THAT BINDS. 

MR. JUSTICE DOUGLAS JOINS IN THIS OPINION. 
..END :
























INLAND EMPIRE COUNCIL V. MILLIS, 325 U.S. 697 


NO. 613.  ARGUED FEBRUARY 26, 27, 1945.  - DECIDED JUNE 11, 1945.  - 144
F.2D 539, AFFIRMED. 


1.  NO SHOWING HAVING BEEN MADE IN THIS CASE THAT THE NATIONAL LABOR
RELATIONS BOARD, IN CERTIFYING A BARGAINING REPRESENTATIVE OF EMPLOYEES
PURSUANT TO SEC. 9(C) OF THE NATIONAL LABOR RELATIONS ACT, ACTED
UNLAWFULLY - EITHER BY NON-COMPLIANCE WITH STATUTORY REQUIREMENTS OR BY
DENIAL OF CONSTITUTIONAL RIGHT - IT IS INAPPROPRIATE TO DETERMINE
WHETHER THE ACT BARS JUDICIAL REVIEW OF CERTIFICATION BY AN INDEPENDENT
SUIT UNDER SEC. 24 OF THE JUDICIAL CODE.  PP. 699-700. 

2.  THE HEARING AFFORDED BY THE NATIONAL LABOR RELATIONS BOARD IN
THIS CERTIFICATION PROCEEDING PURSUANT TO SEC. 9(C) WAS "APPROPRIATE"
WITHIN THE MEANING OF THAT SECTION, WHETHER OR NOT THE PROCEEDINGS
PRIOR TO THE ELECTION ORDERED BY THE BOARD WERE ADEQUATE, SINCE THE
PROCEDURE UPON REHEARING AFTER THE ELECTION WAS ADEQUATE AND CURED ANY
DEFECTS WHICH MAY HAVE EXISTED AT EARLIER STAGES OF THE HEARING.  P.
708. 

3.  RULES OF THE NATIONAL LABOR RELATIONS BOARD APPLICABLE TO
PROCEEDINGS UNDER SEC. 9(C) CONTEMPLATE FURTHER HEARINGS UPON
RECONSIDERATION BEFORE THE FINAL ACT OF CERTIFICATION.  P. 709. 

4.  DUE PROCESS DOES NOT REQUIRE A HEARING AT THE INITIAL STAGE, OR
AT ANY PARTICULAR POINT, OR AT MORE THAN ONE POINT, IN AN
ADMINISTRATIVE PROCEEDING, BUT IS SATISFIED IF THE REQUISITE HEARING IS
HELD BEFORE THE FINAL ORDER BECOMES EFFECTIVE.  P. 710. 

INLAND EMPIRE DISTRICT COUNCIL, LUMBER & SAWMILL WORKERS UNION, ET AL.
V. MILLIS, INDIVIDUALLY AND AS CHAIRMAN AND MEMBER OF THE NATIONAL
LABOR RELATIONS BOARD, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 323 U.S. 703, TO REVIEW THE REVERSAL OF A JUDGMENT
REFUSING TO DISMISS FOR WANT OF JURISDICTION A SUIT AGAINST MEMBERS OF
THE NATIONAL LABOR RELATIONS BOARD TO SET ASIDE A CERTIFICATION OF A
COLLECTIVE BARGAINING REPRESENTATIVE. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY GROWS OUT OF A CONTEST BETWEEN RIVAL LABOR UNIONS
OVER THE RIGHT TO ACT AS COLLECTIVE BARGAINING REPRESENTATIVE OF
EMPLOYEES OF POTLATCH FORESTS, INC., A COMPANY CONDUCTING LOGGING,
LUMBERING AND MILLING OPERATIONS IN NORTHERN IDAHO.  PETITIONERS SEEK
RELIEF FROM A CERTIFICATION ORDER OF THE NATIONAL LABOR RELATIONS BOARD
ISSUED PURSUANT TO SEC. 9(C) OF THE NATIONAL LABOR RELATIONS ACT.  49
STAT. 453; 29 U.S.C. SEC. 159(C).  THEY ARE AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR, THE CERTIFIED UNION WITH THE CONGRESS OF
INDUSTRIAL ORGANIZATIONS. 

IN AMERICAN FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. 401, THIS
COURT HELD THAT A CERTIFICATION UNDER SEC. 9(C) IS NOT REVIEWABLE BY
THE SPECIAL STATUTORY PROCEDURE EXCEPT INCIDENTALLY TO REVIEW OF ORDERS
RESTRAINING UNFAIR LABOR PRACTICES UNDER SEC. 10.  DECISION WAS
EXPRESSLY RESERVED WHETHER, APART FROM SUCH PROCEEDINGS, REVIEW OF
CERTIFICATION MAY BE HAD BY AN INDEPENDENT SUIT BROUGHT PURSUANT TO
SEC. 24 OF THE JUDICIAL CODE.  308 U.S. 412. 

PETITIONERS NOW ASSERT THE RIGHT TO SUCH REVIEW.  PRIOR TO THE
CERTIFICATION, THEY HAD REPRESENTED THE COMPANY'S EMPLOYEES IN
COLLECTIVE BARGAINING.  THEY DO NOT SEEK REVIEW UPON THE MERITS OF THE
CERTIFICATION.  THEIR CLAIM IS THAT THEY WERE DENIED THE "APPROPRIATE
HEARING" WHICH SEC. 9(C) REQUIRES AND THAT THE EFFECT WAS NOT ONLY TO
DEPRIVE THEM OF THE STATUTORY RIGHT TO HEARING BUT ALSO TO DENY THEM
DUE PROCESS OF LAW CONTRARY TO THE FIFTH AMENDMENT'S GUARANTY. 
ACCORDINGLY THEY SEEK, IN SUBSTANCE, INJUNCTIVE RELIEF REQUIRING
RESPONDENTS, MEMBERS OF THE BOARD, TO VACATE THE ORDER OF CERTIFICATION
OR, IN THE ALTERNATIVE, A DECLARATORY JUDGMENT THAT THE ORDER IS
INVALID. 

THE DISTRICT COURT DECLINED TO DISMISS THE SUIT, UPON RESPONDENTS'
MOTION ALLEGING, AMONG OTHER GROUNDS, THAT THE COURT WAS WITHOUT
JURISDICTION OF THE SUBJECT MATTER.  THE COURT OF APPEALS REVERSED THE
JUDGMENT, ONE JUDGE DISSENTING.  144 F.2D 539.  THAT COURT HELD THAT
THE STATUTORY REVIEW IS EXCLUSIVE, WITH THE CONSEQUENCE THAT THIS SUIT
CANNOT BE MAINTAINED.  THE OBVIOUS IMPORTANCE OF THE DECISION CAUSED US
TO GRANT THE PETITION FOR CERTIORARI N1.  323 U.S. 703. 

IN AMERICAN FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. AT 412, THE
COURT SAID, WITH REFERENCE TO THE QUESTION WHETHER THE WAGNER ACT HAS
EXCLUDED JUDICIAL REVIEW OF CERTIFICATION UNDER SEC. 9(C) BY AN
INDEPENDENT SUIT BROUGHT UNDER SEC. 24 OF THE JUDICIAL CODE: 

"IT CAN BE APPROPRIATELY ANSWERED ONLY UPON A SHOWING IN SUCH A SUIT
THAT UNLAWFUL ACTION OF THE BOARD HAS INFLICTED AN INJURY ON THE
PETITIONERS FOR WHICH THE LAW, APART FROM THE REVIEW PROVISIONS OF THE
WAGNER ACT, AFFORDS A REMEDY." 

PETITIONERS EARNESTLY URGE THAT THIS CASE PRESENTS THE REQUIRED
SHOWING OF UNLAWFUL ACTION BY THE BOARD AND RESULTING INJURY.  UNLESS
THEY ARE RIGHT IN THIS VIEW, IT WOULD BE INAPPROPRIATE, AS WAS SAID IN
THE AMERICAN FEDERATION OF LABOR CASE, TO DETERMINE THE QUESTION OF
REVIEW-ABILITY.  THAT QUESTION SHOULD NOT BE DECIDED IN THE ABSENCE OF
SOME SHOWING THAT THE BOARD HAS ACTED UNLAWFULLY.  UPON THE FACTS
PRESENTED, WE THINK NO SUCH SHOWING HAS BEEN MADE, WHETHER BY WAY OF
DEPARTURE FROM STATUTORY REQUIREMENTS OR FROM THOSE OF DUE PROCESS OF
LAW. 

ON MARCH 9, 1943, LOCAL UNIONS AFFILIATED WITH THE C.I.O. FILED
PETITIONS WITH THE BOARD FOR CERTIFICATION AS BARGAINING
REPRESENTATIVES IN THREE OF THE COMPANY'S FIVE LOGGING AND MILLING
PLANTS OR UNITS.  THE PLANTS WERE GEOGRAPHICALLY SEPARATE.  SOME WERE
LOCATED AS FAR FROM OTHERS AS ONE HUNDRED MILES.  BUT THERE WAS COMMON
OWNERSHIP, MANAGEMENT AND CONTROL, WITH OCCASIONAL SHIFTING OF CREWS OR
MEN FROM ONE PLANT TO ANOTHER.  FN2  ALTHOUGH THE PETITIONS SOUGHT
SEPARATE LOCAL UNITS RATHER THAN A SINGLE COMPANY-WIDE UNIT, THE BOARD
CONSOLIDATED THEM FOR HEARING BEFORE A TRIAL EXAMINER. 

THE HEARING WAS HELD IN MAY, 1943.  THE COMPANY, THE C.I.O., AND THE
PETITIONERS, WHO MAY BE REFERRED TO COLLECTIVELY AS THE A.F. OF L.,
FN3  APPEARED AND PARTICIPATED.  NO COMPLAINT IS MADE CONCERNING THIS
HEARING.  IT WAS APPARENTLY A TYPICAL REPRESENTATION PROCEEDING.  THE
PRINCIPAL ISSUE WAS THE CHARACTER OF THE APPROPRIATE UNIT.  THE A.F. OF
L. URGED THAT THE UNIT SHOULD BE COMPANY-WIDE.  THE C.I.O. ADVOCATED
SEPARATE PLANT UNITS. 

THE BOARD'S DECISION WAS RENDERED JULY 13, 1943.  51 N.L.R.B. 288. 
IT FOUND THAT THE A.F. OF L. HAD ORGANIZED THE EMPLOYEES ON A COMPANY
WIDE BASIS AND ON THIS BASIS HAD MADE A "MASTER CONTRACT" WITH THE
COMPANY, WHICH, HOWEVER, WAS SUPPLEMENTED BY LOCAL CONTRACTS RELATING
TO LOCAL MATTERS IN EACH OF THE FIVE OPERATIONS.  THE BOARD CONCLUDED
THAT THE HISTORY OF THE BARGAINING RELATIONS HAD DEMONSTRATED THE
APPROPRIATENESS OF A UNIT CONSISTING OF ALL THE LOGGING AND MILL
EMPLOYEES OF THE COMPANY.  IT THEREFORE DISMISSED THE PETITIONS OF THE
C.I.O. ON THE GROUND THAT THE THREE SEPARATE PLANT UNITS SOUGHT WERE
INAPPROPRIATE. 

THREE DAYS LATER, ON JULY 16, THE C.I.O. FILED A FURTHER PETITION,
THIS TIME ASKING TO BE CERTIFIED AS BARGAINING REPRESENTATIVE ON A
COMPANY-WIDE BASIS, EXCLUDING CLERICAL, SUPERVISORY, CONFIDENTIAL, AND
TEMPORARY EMPLOYEES, AS WELL AS EMPLOYEES OF POTLATCH TOWNSITE AND
POTLATCH MERCANTILE COMPANY.  FN4  THE UNIT THUS SUGGESTED CONFORMED
GENERALLY TO THE ONE COVERED BY THE OUTSTANDING A.F. OF L. CONTRACT. 

ON SEPTEMBER 14, PURSUANT TO C.I.O.'S MOTION, THE BOARD SERVED NOTICE
UPON THE A.F. OF L. TO SHOW CAUSE WHY THE DECISION OF JULY 13 SHOULD
NOT BE VACATED; THE PETITIONS IN THE EARLIER CASES REINSTATED AND
TREATED AS AMENDED BY THE NEW PETITION; AND WHY THE BOARD SHOULD NOT
RECONSIDER AND PROCEED TO DECISION WITHOUT FURTHER HEARING.  THE ORDER
ALSO PROPOSED TO MAKE PART OF THE RECORD THE STATEMENT OF THE BOARD'S
FIELD EXAMINER CONCERNING THE C.I.O. CLAIMS OF AUTHORIZATION TO
REPRESENT EMPLOYEES.  FN5 

THE A.F. OF L. RESPONDED BY FILING A "PROTEST AND OBJECTION."  THIS
ALLEGED THAT THE PROPOSED ORDER CONTEMPLATED A DECISION WITHOUT THE
TAKING OF EVIDENCE, TO BE BASED IN PART ON AN EX PARTE SURVEY OF THE
C.I.O. CLAIMS OF AUTHORIZATION BY EMPLOYEES; THAT EMPLOYEES OF THE TWO
UNITS NOT INVOLVED IN THE FIRST PROCEEDING WOULD HAVE NO OPPORTUNITY TO
PRESENT EVIDENCE IN THEIR OWN BEHALF; FN6  AND THAT THE BOARD HAD NO
AUTHORITY TO SET ASIDE THE A.F. OF L.'S EXISTING CONTRACT BY SUCH
PROCEEDINGS. 

THE BOARD CONSIDERED THE OBJECTIONS, BUT FOUND THEM INSUFFICIENT,
REJECTED THE PROTEST AND, WITHOUT FURTHER HEARING FOR THE TAKING OF
EVIDENCE, CONSIDERED THE CASE UPON THE FULL RECORD, INCLUDING THAT MADE
IN THE ORIGINAL HEARINGS.  IT AGAIN APPROVED A COMPANY-WIDE UNIT,
FOLLOWING THE HISTORICAL LINES OF ORGANIZATION, BUT EXCLUDED CERTAIN
"FRINGE" CLASSIFICATIONS IN CONFORMITY WITH GENERALLY ESTABLISHED
POLICY.  IT FURTHER FOUND THAT A QUESTION CONCERNING REPRESENTATION HAD
ARISEN AND DIRECTED THAT AN ELECTION BE HELD AMONG THE EMPLOYEES IN THE
APPROPRIATE UNIT AS IT HAD BEEN DETERMINED.  THE BOARD'S DECISION WAS
RENDERED OCTOBER 14, 1943.  52 N.L.R.B. 1377. 

THE ELECTION WAS HELD DURING THE FOLLOWING NOVEMBER AND RESULTED IN A
MAJORITY FOR THE C.I.O. FN7  THE A.F. OF L. FILED "OBJECTIONS AND
EXCEPTIONS TO ELECTION," SEE 55 N.L.R.B. 255, 256, WHICH RENEWED THE
CLAIM OF IMPROPRIETY IN FAILING TO HOLD ANOTHER HEARING AND ALSO
CHALLENGED SOME EXCLUSIONS OF EMPLOYEES FROM ELIGIBILITY TO TAKE PART
IN THE ELECTION.  ACCORDINGLY THE A.F. OF L. MOVED TO VACATE THE
DECISION AND DIRECTION OF ELECTION, TO VACATE THE ELECTION ITSELF, TO
STAY CERTIFICATION AND TO GRANT AN APPROPRIATE HEARING. 

IN JANUARY, 1944, THE BOARD GRANTED THE A.F. OF L.'S MOTION FOR
FURTHER HEARING, BUT DEFERRED RULING UPON THE REQUEST TO VACATE THE
PREVIOUS DECISION AND THE ELECTION.  THE HEARING WAS HELD BEFORE A
TRIAL EXAMINER IN FEBRUARY, 1944.  PETITIONERS APPEARED AND
PARTICIPATED FULLY, AS DID THE COMPANY AND THE C.I.O. NO COMPLAINT IS
MADE CONCERNING THE SCOPE OF THIS HEARING OR THE MANNER IN WHICH IT WAS
CONDUCTED, EXCEPT AS TO ITS TIMING IN RELATION TO THE ELECTION.  FULL
OPPORTUNITY WAS AFFORDED PETITIONERS TO PRESENT OBJECTIONS AND EVIDENCE
IN SUPPORT OF THEM.  FROM THE ABSENCE OF CONTRARY ALLEGATION, AS WELL
AS THE OFFICIAL REPORT OF THE BOARD'S DECISION, IT MUST BE TAKEN THAT
ALL AVAILABLE OBJECTIONS TO THE BOARD'S PROCEDURE AND ACTION WERE MADE,
CONSIDERED, AND DETERMINED ADVERSELY TO PETITIONERS.  FN8 

THE BOARD RENDERED ITS SUPPLEMENTAL DECISION ON MARCH 4, 1944.  55
N.L.R.B. 255.  THIS MADE SUPPLEMENTAL FINDINGS OF FACT BASED UPON THE
ENTIRE RECORD, INCLUDING THE RECORD IN THE ORIGINAL PROCEEDINGS, THE
ELECTION REPORT, PETITIONERS' OBJECTIONS AND EXCEPTIONS, THE MOTION FOR
RECONSIDERATION, AND THE EVIDENCE AND OBJECTIONS TAKEN AT THE FEBRUARY
HEARING.  AFTER REVIEWING THE ENTIRE PROCEEDINGS, THE BOARD FOUND THAT
AN "APPROPRIATE HEARING" HAD BEEN GIVEN, WITHIN THE REQUIREMENT OF SEC.
9(C); RULED UPON EACH OF PETITIONERS' OBJECTIONS, WHETHER NEW OR
RENEWED; AND CONCLUDED THAT NONE OF THEM FURNISHED ADEQUATE REASON FOR
DISTURBING ITS PREVIOUS DECISION AND DIRECTION FOR ELECTION. 
ACCORDINGLY IT DENIED THE MOTION TO VACATE THAT DECISION AND THE
ELECTION, AND CERTIFIED THE C.I.O. AS EXCLUSIVE BARGAINING
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE.  A.F. OF
L.'S FURTHER MOTION FOR RECONSIDERATION WAS DENIED AND THEREAFTER THE
PRESENT SUIT WAS INSTITUTED.  FN9 

UPON THIS HISTORY PETITIONERS SAY THEY HAVE BEEN DENIED THE
"APPROPRIATE HEARING" SEC. 9(C) REQUIRES.  THEY INSIST THAT THE
HEARING, TO BE "APPROPRIATE," MUST PRECEDE THE ELECTION.  ACCORDINGLY
THE FEBRUARY, 1944, HEARING IS SAID TO BE INADEQUATE TO SATISFY THE
STATUTORY REQUIREMENT, AS WELL AS DUE PROCESS, ALTHOUGH NO COMPLAINT IS
MADE CONCERNING ITS ADEQUACY IN ANY RESPECT OTHER THAN THAT IT
FOLLOWED, RATHER THAN PRECEDED, THE ELECTION. 

PETITIONERS URGE ALSO THAT THE PROCEDURE WAS UNWARRANTED FOR THE
BOARD TO VACATE THE DECISION OF JULY, 1943, REOPEN OR "REINSTATE" THE
ORIGINAL PROCEEDINGS, TREAT THE C.I.O.'S PETITION FOR COMPANY-WIDE
CERTIFICATION AS AN AMENDMENT TO ITS ORIGINAL PETITIONS, AND THEREAFTER
TO REGARD THE RECORD IN THE EARLIER PROCEEDINGS AS PART OF THE RECORD
IN THE LATER ONES, TOGETHER WITH THE FIELD EXAMINER'S REPORT CONCERNING
C.I.O. EMPLOYEE REPRESENTATION. 

PETITIONERS' EXACT CONTENTION CONCERNING THE REOPENING OF THE
ORIGINAL PROCEEDINGS IS NOT ALTOGETHER CLEAR.  FN10  BUT, IN ANY EVENT,
IT CLEARLY MAINTAINS THAT THE BOARD'S ACTION, IN EFFECT TREATING THE
LATER PROCEEDINGS AS A CONTINUANCE OF THE EARLIER ONES, INJECTED NEW
ISSUES UPON WHICH PETITIONERS WERE ENTITLED TO PRESENT ADDITIONAL
EVIDENCE.  ACCORDINGLY IT IS CLAIMED THAT THE ORIGINAL RECORD, TOGETHER
WITH THE ADDITIONAL MATTER PRESENTED BY THE NEW PETITION, THE MOTIONS
WHICH FOLLOWED AND THE PROCEEDING TO SHOW CAUSE, WAS NOT ADEQUATE TO
SUSTAIN THE BOARD'S ACTION IN VACATING ITS FIRST DECISION AND ENTERING
THE DIRECTION FOR ELECTION.  ALTHOUGH PETITIONERS URGE THAT THE
PREELECTION PROCEEDINGS WERE DEFECTIVE, THEY EMPHASIZE MOST STRONGLY
THAT THE FEBRUARY HEARING COULD NOT CURE THE FAILURE TO GRANT THE
FURTHER HEARING THEY DEMANDED PRIOR TO THE ELECTION. 

THE BOARD'S POSITION IS, IN EFFECT, TWOFOLD:  THAT THERE WAS NO
DEPARTURE FROM THE STATUTE'S REQUIREMENTS OR THOSE OF DUE PROCESS IN
THE PROCEEDINGS PRIOR TO THE ELECTION; FN11  AND, IF THEY WERE
DEFECTIVE IN ANY RESPECT, THE DEPARTURE WAS CURED BY THE FULL HEARING
GRANTED AT PETITIONERS' INSISTENCE AFTER THE ELECTION. 

WE THINK PETITIONERS HAVE MISCONCEIVED THE EFFECTS OF SEC. 9(C).  IT
IS AS FOLLOWS: 

"WHENEVER A QUESTION AFFECTING COMMERCE ARISES CONCERNING THE
REPRESENTATION OF EMPLOYEES, THE BOARD MAY INVESTIGATE SUCH CONTROVERSY
AND CERTIFY TO THE PARTIES, IN WRITING, THE NAME OR NAMES OF THE
REPRESENTATIVES THAT HAVE BEEN DESIGNATED OR SELECTED.  IN ANY SUCH
INVESTIGATION, THE BOARD SHALL PROVIDE FOR AN APPROPRIATE HEARING UPON
DUE NOTICE, EITHER IN CONJUNCTION WITH A PROCEEDING UNDER SECTION 10 OR
OTHERWISE, AND MAY TAKE A SECRET BALLOT OF EMPLOYEES, OR UTILIZE ANY
OTHER SUITABLE METHOD TO ASCERTAIN SUCH REPRESENTATIVES." 

THE SECTION IS SHORT.  ITS TERMS ARE BROAD AND GENERAL.  ITS ONLY
REQUIREMENTS CONCERNING THE HEARING ARE THREE.  IT MUST BE "UPON DUE
NOTICE," IT MUST BE "APPROPRIATE," AND IT IS MANDATORY "IN ANY SUCH
INVESTIGATION," BUT MAY BE HELD IN CONJUNCTION WITH A SEC. 10(UNFAIR
PRACTICE) PROCEEDING OR OTHERWISE. 

OBVIOUSLY GREAT LATITUDE CONCERNING PROCEDURAL DETAILS IS
CONTEMPLATED.  REQUIREMENTS OF FORMALITY AND RIGIDITY ARE ALTOGETHER
LACKING.  THE NOTICE MUST BE "DUE," THE HEARING "APPROPRIATE."  THESE
REQUIREMENTS ARE RELATED TO THE CHARACTER OF THE PROCEEDING OF WHICH
THE HEARING IS ONLY A PART.  THAT PROCEEDING IS NOT TECHNICAL.  IT IS
AN "INVESTIGATION," ESSENTIALLY INFORMAL, NOT ADVERSARY.  THE
INVESTIGATION IS NOT REQUIRED TO TAKE ANY PARTICULAR FORM OR CONFINED
TO THE HEARING.  THE HEARING IS MANDATORY - "THE BOARD SHALL PROVIDE
FOR" IT.  BUT THE REQUIREMENT IS ONLY THAT IT SHALL BE PROVIDED "IN ANY
SUCH INVESTIGATION."  THE STATUTE DOES NOT PURPORT TO SPECIFY WHEN OR
AT WHAT STAGE OF THE INVESTIGATION THE HEARING SHALL BE HAD.  IT MAY BE
CONDUCTED "IN CONJUNCTION WITH A PROCEEDING UNDER SECTION 10 OR
OTHERWISE."    MOREOVER, NOTHING IN THE SECTION PURPORTS TO REQUIRE A
HEARING BEFORE AN ELECTION.  NOTHING IN FACT REQUIRES AN ELECTION.  THE
HEARING "IN ANY SUCH INVESTIGATION" IS MANDATORY.  BUT THE ELECTION IS
DISCRETIONARY.  THE BOARD "MAY TAKE A SECRET BALLOT  ...  OR UTILIZE
ANY OTHER SUITABLE METHOD TO ASCERTAIN SUCH REPRESENTATIVES." 

AN ELECTION, WHEN HELD, IS ONLY A PRELIMINARY DETERMINATION OF FACT. 
SEN. REP. NO. 573, 74TH CONG., 1ST SESS., 5-6; H.R. REP. NO. 1147, 74TH
CONG., 1ST SESS., 6-7.  A DIRECTION OF ELECTION IS BUT AN INTERMEDIATE
STEP IN THE INVESTIGATION, WITH CERTIFICATION AS THE FINAL AND
EFFECTIVE ACTION.  LABOR BOARD V. INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, 308 U.S. 413, 414-415.  NOTHING IN SEC. 9(C)
REQUIRES THE BOARD TO UTILIZE THE RESULTS OF AN ELECTION OR FORBIDS IT
TO DISREGARD THEM AND UTILIZE OTHER SUITABLE METHODS. 

IT HARDLY CAN BE TAKEN, IN VIEW OF ALL THESE CONSIDERATIONS, THAT
CONGRESS INTENDED A HEARING WHICH IT MADE MANDATORY "IN ANY SUCH
INVESTIGATION" ALWAYS TO PRECEDE AN ELECTION WHICH IT MADE
DISCRETIONARY FOR ALL AND WHICH, IN THE COMMITTEE REPORTS, IT
SPECIFICALLY DENOMINATED AS ONLY A METHOD FOR MAKING A PRELIMINARY
DETERMINATION OF FACT.  THAT CHARACTERIZATION WAS NOT BEYOND
CONGRESSIONAL AUTHORITY TO MAKE AND IS WHOLLY CONSISTENT WITH THE
DISCRETIONARY STATUS THE SECTION GIVES THAT MODE OF DETERMINATION. 

IN VIEW OF THE PRELIMINARY AND FACTUAL FUNCTION OF AN ELECTION, WE
CANNOT AGREE WITH PETITIONERS' VIEW THAT ONLY A HEARING PRIOR TO AN
ELECTION CAN BE "APPROPRIATE" WITHIN THE SECTION'S MEANING.  THE
CONCLUSIVE ACT OF DECISION, IN THE INVESTIGATION, IS THE
CERTIFICATION.  UNTIL IT IS TAKEN, WHAT PRECEDES IS PRELIMINARY AND
TENTATIVE.  THE BOARD IS FREE TO HOLD AN ELECTION OR UTILIZE OTHER
SUITABLE METHODS.  SUCH OTHER METHODS ARE OFTEN EMPLOYED AND FREQUENTLY
ARE OF AN INFORMAL CHARACTER.  PETITIONERS' VIEW LOGICALLY WOULD
REQUIRE THE HEARING TO BE HELD IN ADVANCE OF THE USE OF ANY SUCH OTHER
METHOD AS MUCH AS WHEN THE METHOD OF ELECTION IS USED. 

CONGRESS WAS FULLY INFORMED CONCERNING THE EFFECTS OF MANDATORY
HEARINGS PRECEDING ELECTIONS UPON THE PROCESS OF CERTIFICATION.  FOR
UNDER PUBLIC RESOLUTION 44, WHICH PRECEDED SEC. 9(C), THE RIGHT OF
JUDICIAL HEARING WAS PROVIDED.  THE LEGISLATIVE REPORTS CITED ABOVE
SHOW THAT THIS RESULTED IN PREVENTING A SINGLE CERTIFICATION AFTER
NEARLY A YEAR OF THE RESOLUTION'S OPERATION AND THAT ONE PURPOSE OF
ADOPTING THE DIFFERENT PROVISIONS OF THE WAGNER ACT WAS TO AVOID THESE
CONSEQUENCES.  FN12  IN DOING SO CONGRESS ACCOMPLISHED ITS PURPOSE NOT
ONLY BY DENYING THE RIGHT OF JUDICIAL REVIEW AT THAT STAGE BUT ALSO BY
CONFERRING BROAD DISCRETION UPON THE BOARD AS TO THE HEARING WHICH SEC.
9(C) REQUIRED BEFORE CERTIFICATION. 

PETITIONERS' ARGUMENT DOES NOT IN TERMS UNDERTAKE TO REWRITE THE
STATUTE.  BUT THE EFFECT WOULD BE TO MAKE IT READ AS IF THE WORDS
"APPROPRIATE  ...  IN ANY SUCH INVESTIGATION" WERE REPLACED WITH THE
WORDS "HEARING PRIOR TO ANY ELECTION."  NEITHER THE LANGUAGE OF THE
WORD "APPROPRIATE" SUCH AN EFFECT.  WE THINK THE STATUTORY PURPOSE
RATHER IS TO PROVIDE FOR A HEARING IN WHICH INTERESTED PARTIES SHALL
HAVE FULL AND ADEQUATE OPPORTUNITY TO PRESENT THEIR OBJECTIONS BEFORE
THE BOARD CONCLUDES ITS INVESTIGATION AND MAKES ITS EFFECTIVE
DETERMINATION BY THE ORDER OF CERTIFICATION. 

IN THIS CASE THAT OPPORTUNITY WAS AFFORDED TO PETITIONERS.  WE NEED
NOT DECIDE WHETHER THE HEARING WOULD HAVE BEEN ADEQUATE OR
"APPROPRIATE," IF THE FEBRUARY, 1944, HEARING HAD NOT BEEN GRANTED AND
HELD.  IN THE BOARD'S VIEW, PETITIONERS, WHEN AFFORDED THE OPPORTUNITY
IN THE PROCEEDINGS TO SHOW CAUSE HELD PRIOR TO THE ELECTION, BROUGHT
FORWARD NOTHING WHICH REQUIRED IT TO HOLD A FURTHER HEARING FOR THE
TAKING OF EVIDENCE.  WITH THIS PETITIONERS DISAGREE.  WE NEED NOT
EXAMINE WHETHER ONE OR THE OTHER WAS CORRECT IN ITS VIEW.  FOR WHEN THE
OBJECTIONS WERE RENEWED AFTER THE ELECTION, AND OTHERS ALSO WERE
ADVANCED, THE BOARD GAVE FULL AND ADEQUATE OPPORTUNITY FOR HEARING,
INCLUDING THE PRESENTATION OF EVIDENCE, CONCERNING THEM.  PETITIONERS
DO NOT CONTEND THAT THE HEARING WAS A SHAM OR THAT THE BOARD DID NOT
CONSIDER THEIR OBJECTIONS.  THEY DO NOT ASK FOR REVIEW UPON THE
MERITS.  THEIR ONLY OBJECTION IS THAT THE HEARING CAME TOO LATE.  THAT
OBJECTION IS NOT TENABLE IN VIEW OF THE STATUTE'S TERMS AND INTENT. 

IT MAY BE, AS PETITIONERS INSIST, THAT THEIR INTERESTS WERE HARMFULLY
AFFECTED BY THE OUTCOME OF THE ELECTION, THROUGH LOSS OF PRESTIGE AND
IN OTHER WAYS.  IT DOES NOT FOLLOW THAT THE INJURY IS ATTRIBUTABLE TO
ANY FAILURE OF THE BOARD TO AFFORD A HEARING WHICH WAS "APPROPRIATE"
WITHIN THE SECTION'S MEANING.  THIS BEING TRUE, AND SINCE PETITIONERS
DO NOT NOW QUESTION THE BOARD'S RULINGS UPON THE MERITS OF THE ISSUES
APART FROM THOSE RELATING TO THE CHARACTER OF THE HEARING, THE INJURY
MUST BE REGARDED, FOR PRESENTLY MATERIAL PURPOSES, AS AN INEVITABLE
RESULT OF LOSING AN ELECTION WHICH WAS PROPERLY CONDUCTED. 

PETITIONERS ALSO ASSERT THAT THE BOARD DEPARTED FROM ITS OWN RULES IN
FAILING TO ACCORD THEM THE HEARING DEMANDED PRIOR TO THE ELECTION.  THE
REGULATIONS PROVIDE FOR DIRECTION OF ELECTION TO FOLLOW THE HEARING
BEFORE THE TRIAL EXAMINER AND, IN THE BOARD'S DISCRETION, ORAL ARGUMENT
OR FURTHER HEARING AS IT MAY DETERMINE.  RULES AND REGULATIONS, ART.
III, SECS. 3, 8, 9.  BUT THE REGULATIONS ALSO CONTEMPLATE FURTHER
HEARINGS FOR RECONSIDERATION BEFORE THE FINAL ACT OF CERTIFICATION, A
PROCEDURE OF WHICH PETITIONERS HAD FULL ADVANTAGE IN THIS CASE. 
WHETHER OR NOT THE HEARINGS PROVIDED BEFORE THE ELECTION WERE ADEQUATE
TO COMPLY WITH THE REGULATIONS, THE PROCEDURE UPON REHEARING AFTERWARD
WAS ADEQUATE TO PERFORM ITS INTENDED FUNCTION OF AFFORDING FULL
OPPORTUNITY FOR CORRECTING ANY DEFECT WHICH MAY HAVE EXISTED IN THE
PREVIOUS STAGES OF HEARING.  FN13 

WE THINK NO SUBSTANTIAL QUESTION OF DUE PROCESS IS PRESENTED.  THE
REQUIREMENTS IMPOSED BY THAT GUARANTY ARE NOT TECHNICAL, NOR IS ANY
PARTICULAR FORM OF PROCEDURE NECESSARY.  MORGAN V. UNITED STATES, 298
U.S. 468, 481.  "THE DEMANDS OF DUE PROCESS DO NOT REQUIRE A HEARING,
AT THE INITIAL STAGE OR AT ANY PARTICULAR POINT OR AT MORE THAN ONE
POINT IN AN ADMINISTRATIVE PROCEEDING SO LONG AS THE REQUISITE HEARING
IS HELD BEFORE THE FINAL ORDER BECOMES EFFECTIVE."  OPP COTTON MILLS V.
ADMINISTRATOR, 312 U.S. 126, 152, 153; CF. BOWLES V. WILLINGHAM, 321
U.S. 503, 519-521.  FN14 THAT REQUIREMENT WAS FULLY MET IN THIS CASE. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE INFERIOR COURTS HAVE DIVIDED ON THE QUESTION.  COMPARE
ASSOCIATION OF PETROLEUM WORKERS V. MILLIS, NO. 20854(N.D. OHIO),
UNREPORTED; SUN SHIP EMPLOYEES ASSOCIATION, INC. V. LABOR BOARD, 139
F.2D 744(C.C.A. 3); INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS V.
LABOR BOARD, NO. 21994(N.D. OHIO), UNREPORTED; AMERICAN BROACH
EMPLOYEES ASSOCIATION V. LABOR BOARD, NO. 4242(E.D. MICH.), UNREPORTED;
SPOKANE ALUMINUM TRADES COUNCIL V. LABOR BOARD, NO. 349(E.D. WASH.),
UNREPORTED; WITH INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS V.
LABOR BOARD, 41 F.SUPP.  57(E.D. MICH.); AMERICAN FEDERATION OF LABOR
V. MADDEN, 33 F.SUPP.  943(D.D.C.); KLEIN V. HERRICK, 41 F.SUPP. 
417(S.D.N.Y.); R.J. REYNOLDS EMPLOYEES ASSOCIATION, INC. V. LABOR BOARD
(M.D.N.C.), UNREPORTED; REILLY V. MILLIS, 52 F.SUPP.  172(D.D.C.),
AFFIRMED, 144 F.2D 259(APP.  D.C.); BROTHERHOOD & UNION OF TRANSIT
EMPLOYEES OF BALTIMORE V. MADDEN, 58 F.SUPP.  366, 15 L.R.R. 519(D.
MD.), REVERSED, 147 F.2D 439, 15 L.R.R. 806; INLAND EMPIRE DISTRICT
COUNCIL V. GRAHAM, 53 F.SUPP.  369(W.D. WASH.). 

FN2  SOME SPECIAL OPERATIONS, E.G., THE WASHINGTON-IDAHO-MONTANA
RAILROAD, WERE CONDUCTED THROUGH WHOLLY OWNED SUBSIDIARIES. 

FN3  THE COLLECTIVE DESIGNATION IS APPROXIMATE BOTH FOR CONVENIENCE
AND BY REASON OF THE FACTS, NOTED IN THE TEXT, RELATING TO A.F. OF L.'S
DEALINGS WITH THE COMPANY THROUGH BOTH A "MASTER CONTRACT" AND LOCAL
SUPPLEMENTAL AGREEMENTS. 

FN4  THE BOARD'S REPORT SHOWS THAT EMPLOYEES OF THESE OPERATIONS HAD
BEEN EXCLUDED FROM THE UNITS IN THE LOCAL CONTRACTS WHICH THE A.F. OF
L. HAD WITH THE SEPARATE OPERATIONS OF THE COMPANY.  52 N.L.R.B. 1377,
1382-1383. 

FN5  THE FIELD EXAMINER'S REPORT IS INTRODUCED, NOT AS PROOF OF THE
EXTENT OF REPRESENTATION BY THE PETITIONING UNION, BUT TO SATISFY THE
BOARD THAT THERE IS A SUBSTANTIAL MEMBERSHIP AMONG THE EMPLOYEES IN THE
UNIT CLAIMED TO BE APPROPRIATE SUFFICIENT TO JUSTIFY THE BOARD'S
INVESTIGATION. 

FN6  THESE WERE THE PLANTS LOCATED AT POTLATCH AND COEUR D'ALENE,
WHICH WERE NOT INCLUDE IN THE UNITS SOUGHT BY THE C.I.O. IN ITS
ORIGINAL PETITIONS. 

FN7  THE MAJORITY WAS OF THE BALLOTS CAST, BUT NOT OF THE TOTAL
NUMBER OF EMPLOYEES ELIGIBLE TO VOTE. 

FN8  CF. 55 N.L.R.B. 255. 

FN9  THE SUIT IS THE LAST IN A SERIES INTENDED TO PREVENT THE HOLDING
OF THE ELECTION OR TO AVOID CERTIFICATION FOUNDED UPON IT.  SEE INLAND
EMPIRE DISTRICT COUNCIL V. GRAHAM, 53 F.SUPP.  369(W.D. WASH.); LOCAL
2766, LUMBER & SAWMILL WORKERS UNION V. HANSON, CIVIL ACTION NO.
1553(D. IDAHO), UNREPORTED; INLAND EMPIRE DISTRICT COUNCIL V. GRAHAM,
CIVIL ACTION NO. 834(W.D. WASH.), UNREPORTED; INLAND EMPIRE DISTRICT
COUNCIL V. LABOR BOARD, CIVIL ACTION NO. 22353(D.D.C.), UNREPORTED. 

FN10  THE ARGUMENT APPEARS TO REGARD THEM AS IRREVOCABLY CLOSED BY
THE DECISION OF JULY 13, 1943, AND THAT DECISION AS ENDOWED WITH
FINALITY PRECLUDING THE BOARD FROM LATER REOPENING THE PROCEEDINGS AND
CONSIDERING FURTHER THE RECORD MADE IN THEM.  IT SEEMS ALSO TO SUGGEST
THAT THE ORIGINAL PETITIONS COULD NOT BE AMENDED, AT ANY RATE BY
TREATING THE LATER PETITION AS AN AMENDMENT, AFTER THE DECISION,
NOTWITHSTANDING AN ORDER VACATING IT. 

FN11  THE BOARD SAYS THAT THE TWO PROCEEDINGS INVOLVED THE SAME
SUBSTANTIAL CONTROVERSY, NAMELY, REPRESENTATION OF THE POTLATCH
COMPANY'S EMPLOYEES; AND THEREFORE THE MATERIAL ISSUES WERE THE SAME
EXCEPT THAT IN THE LATER PROCEEDINGS THE C.I.O. ACCEDED TO THE DECISION
THAT A COMPANY-WIDE UNIT WAS APPROPRIATE AND SOUGHT REPRESENTATION ON
THAT BASIS.  ONLY A WASTE OF TIME AND MONEY FOR ALL CONCERNED WOULD
HAVE RESULTED, IN THE BOARD'S VIEW, FROM RETRACING THE GROUND COVERED
IN THE EARLIER HEARINGS.  ACCORDINGLY, IT WAS ENTIRELY PROPER TO TREAT
THE LATER ONES AS IN SUBSTANCE A CONTINUATION OF THEM AND TO PROCEED
WITH THE DETERMINATION OF THE OTHER QUESTIONS RELATING TO
REPRESENTATION WHICH THE NARROW GROUND OF THE FIRST DECISION HAD MADE
UNNECESSARY TO DECIDE. 

THE BOARD ALSO MAINTAINS THAT A FURTHER HEARING WAS NOT REQUIRED IN
THE ABSENCE OF A SHOWING BY PETITIONERS THAT NEW ISSUES WERE PRESENTED
WHICH REQUIRED THE TAKING OF ADDITIONAL EVIDENCE.  IN ITS VIEW THE
PROCEDURE TO SHOW CAUSE AFFORDED ADEQUATE OPPORTUNITY FOR PETITIONERS
TO DO THIS AND NONE OF THE ISSUES THEY PRESENTED FURNISHED ADEQUATE
BASIS EITHER TO REQUIRE HOLDING A FURTHER HEARING OR FOR REFUSING TO
PROCEED WITH THE ELECTION UPON THE BASIS PROPOSED. 

THE BOARD AND THE PETITIONERS ARE AT ODDS THEREFORE CONCERNING THE
MATERIALITY OF THE ISSUES PRESENTED ON THE SHOW CAUSE PROCEDURE AND
THEIR SUFFICIENCY TO REQUIRE FURTHER HEARING FOR THE PRESENTATION OF
EVIDENCE.  BUT, IN ANY EVENT, THE BOARD SAYS THAT IF IT WAS WRONG AS TO
THIS IN ANY RESPECT THE ERROR WAS CURED BY THE FULL HEARING ALLOWED IN
FEBRUARY, 1944. 

FN12  CF. NOTE 9. 

FN13  WE NEED NOT DETERMINE WHETHER IN A SITUATION WHERE NO HEARING
WHATEVER IS AFFORDED PRIOR TO AN ELECTION, THE FAILURE WOULD BE CURED
BY ALLOWING ONE AFTERWARD, WHETHER AS A MATTER OF COMPLIANCE WITH THE
STATUTE OR WITH THE REGULATIONS.  THAT SITUATION IS NOT PRESENTED.  THE
PROCEEDINGS IN THIS CASE PRIOR TO THE ELECTION AFFORDED OPPORTUNITY FOR
HEARING.  AT MOST THE HEARING WAS DEFECTIVE, AND THE OPPORTUNITY GIVEN
BY THE POSTELECTION HEARING WAS EFFECTIVE TO CURE WHATEVER DEFECTS MAY
HAVE EXISTED, IF ANY. 

FN14  CF. ALSO BUTTFIELD V. STRANAHAN, 192 U.S. 470, 496-497; LABOR
BOARD V. MACKAY RADIO & TEL. CO., 304 U.S. 333, 350, 351; ANNISTON MFG.
CO. V. DAVIS, 301 U.S. 337, 342, 343; UNITED STATES V. JU TOY, 198 U.S.
253, 263; CHICAGO, B. & Q.R. CO. V. CHICAGO, 166 U.S. 226, 235;
PHILLIPS V. COMMISSIONER, 283 U.S. 589, 596-597. 

MR. JUSTICE ROBERTS DISSENTS. 
..END :



ELGIN, J. & E.R. CO. V. BURLEY, 325 U.S. 711 


NO. 160.  ARGUED NOVEMBER 15, 1945.  - DECIDED JUNE 11, 1945.  - 140
F.2D 488, AFFIRMED. 


1.  THE CONTENTION THAT AN AWARD OF THE NATIONAL RAILROAD ADJUSTMENT
BOARD UNDER THE RAILWAY LABOR ACT AMOUNTS TO NOTHING MORE THAN AN
ADVISORY OPINION IS INCONSISTENT WITH THE TERMS, PURPOSES AND
LEGISLATIVE HISTORY OF THE ACT AND WITH DECISIONS OF THIS COURT
CONSTRUING IT. P. 720. 

2.  A COLLECTIVE BARGAINING REPRESENTATIVE IS WITHOUT STATUTORY
AUTHORITY UNDER THE RAILWAY LABOR ACT TO COMPROMISE AND SETTLE ACCRUED
MONETARY CLAIMS OF INDIVIDUAL EMPLOYEES (ARISING OUT OF ALLEGED
VIOLATIONS OF A COLLECTIVE AGREEMENT BY THE EMPLOYER) OR TO REPRESENT
THEM EXCLUSIVELY BEFORE THE NATIONAL RAILROAD ADJUSTMENT BOARD IN
PROCEEDINGS BEFORE IT FOR DETERMINATION OF SUCH CLAIMS; AND, IN THE
ABSENCE OF LEGALLY SUFFICIENT AUTHORIZATION, A SETTLEMENT SO EFFECTED
AND AN ADVERSE AWARD BASED THEREON DO NOT BAR A SUIT BY THE INDIVIDUAL
EMPLOYEES TO ENFORCE SUCH CLAIMS.  P. 738. 

3.  UPON THE RECORD IN THIS CASE, IT CAN NOT BE SAID AS A MATTER OF
LAW THAT THE COLLECTIVE BARGAINING REPRESENTATIVE WAS AUTHORIZED IN ANY
LEGALLY SUFFICIENT MANNER TO SETTLE THE CLAIMS IN QUESTION OR TO
REPRESENT THE INDIVIDUAL EMPLOYEES BEFORE THE ADJUSTMENT BOARD.  P.
748. 

ELGIN, JOLIET & EASTERN RAILWAY CO. V. BURLEY ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 323 U.S. 690, TO REVIEW THE REVERSAL OF A SUMMARY
JUDGMENT FOR THE DEFENDANT RAILROAD COMPANY IN A SUIT BY EMPLOYEES UPON
CLAIMS ARISING OUT OF ALLEGED VIOLATIONS OF A COLLECTIVE BARGAINING
AGREEMENT. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CAUSE, ARISING UPON AN AMENDED COMPLAINT,  FN1  BRINGS FOR
DECISION NOVEL AND IMPORTANT QUESTIONS CONCERNING THE AUTHORITY OF A
COLLECTIVE BARGAINING REPRESENTATIVE, AFFECTING THE OPERATION OF THE
RAILWAY LABOR ACT OF 1934.  48 STAT. 1185, 45 U.S.C. SEC. 151 FF.  THE
ULTIMATE ISSUES ARE WHETHER SUCH AN AGENT HAS AUTHORITY, BY VIRTUE OF
THE ACT OR OTHERWISE, EITHER TO COMPROMISE AND SETTLE ACCRUED MONETARY
CLAIMS OF TEN EMPLOYEES OR TO SUBMIT THEM FOR DETERMINATION BY THE
NATIONAL RAILROAD ADJUSTMENT BOARD TO THE EXCLUSION OF THEIR RIGHT,
AFTER THE SETTLEMENT AND AFTER THE BOARD'S ADVERSE DECISION, TO ASSERT
THEM IN A SUIT BROUGHT FOR THAT PURPOSE.  THE CLAIMS ARE FOR "PENALTY
DAMAGES" FOR ALLEGED VIOLATION OF THE STARTING TIME PROVISIONS OF A
COLLECTIVE AGREEMENT, VARYING FROM $3,500 TO $14,000, AND IN THE
AGGREGATE AMOUNTING TO $65,274.00.  FN2 

THE DISTRICT COURT RENDERED SUMMARY JUDGMENT FOR THE CARRIER, HOLDING
THAT THE BOARD'S AWARD WAS A FINAL ADJUDICATION OF THE CLAIMS, WITHIN
THE UNION'S POWER TO SEEK AND THE BOARD'S TO MAKE, PRECLUDING JUDICIAL
REVIEW.  FN3  THE COURT OF APPEALS REVERSED THE JUDGMENT, 140 F.2D 488,
HOLDING THAT THE RECORD PRESENTED A QUESTION OF FACT WHETHER THE UNION
HAD BEEN AUTHORIZED BY RESPONDENTS "TO NEGOTIATE, COMPROMISE AND
SETTLE" THE CLAIMS.  WE GRANTED CERTIORARI, 323 U.S. 690, IN ORDER TO
RESOLVE THE IMPORTANT QUESTIONS AFFECTING APPLICATION AND OPERATION OF
THE ACT. 

A STATEMENT OF THE MORE IMPORTANT FACTS WILL PUT THE ISSUES IN
SHARPER PERSPECTIVE.  THE CONTROVERSY RELATES TO OPERATIONS IN
PETITIONER'S SO-CALLED "WHITING YARD."  PRIOR TO JULY 24, 1934,
RESPONDENTS, OR SOME OF THEM, WERE EMPLOYED BY THE STANDARD OIL COMPANY
TO DO PRIVATE INTRAPLANT SWITCHING IN ITS WHITING, INDIANA, PLANT.  ON
THAT DATE THIS WORK WAS TAKEN OVER BY PETITIONER.  UNTIL THEN STANDARD
OIL'S SWITCHING CREWS BEGAN WORK EACH DAY AT HOURS FIXED IN ADVANCE BY
THE MANAGEMENT, WHICH VARIED AS PLANT OPERATIONS REQUIRED. 

PRIOR TO 1934 PETITIONER'S CREWS AT ALL YARDS IN INDIANA AND ILLINOIS
BEGAN WORK DAILY IN ACCORDANCE WITH STARTING TIME PROVISIONS CONTAINED
IN ARTICLE 6 OF A COLLECTIVE AGREEMENT MADE IN 1927 BETWEEN PETITIONER
AND THE BROTHERHOOD OF RAILROAD TRAINMEN, GOVERNING RULES, WORKING
CONDITIONS AND RATES OF PAY OF YARDMEN. 

UPON TRANSFER OF THE WHITING YARD SWITCHING TO PETITIONER,
RESPONDENTS THERETOFORE EMPLOYED BY STANDARD OIL BECAME EMPLOYEES OF
PETITIONER AND MEMBERS OF THE BROTHERHOOD.  ON JULY 24, 1934, COMPANY
OFFICIALS CONFERRED WITH REPRESENTATIVES OF THE ENGINEERS, THE FIREMEN
AND THE YARDMEN CONCERNING TERMS OF EMPLOYMENT.  THE BROTHERHOOD ACTED
FOR THE YARDMEN.  APPARENTLY AGREEMENT WAS REACHED ON ALL MATTERS
EXCEPT STARTING TIME BUT, AS TO THAT, VERSIONS OF WHAT TRANSPIRED
DIFFER.  RESPONDENTS AND THE BROTHERHOOD HAVE MAINTAINED THAT THE 1927
AGREEMENT, INCLUDING ARTICLE 6, BECAME APPLICABLE TO THEM UPON THE
TRANSFER.  THEY SAY, HOWEVER, THAT THEY ASSENTED TO A SUSPENSION OF
ARTICLE 6 FOR THIRTY DAYS FROM JULY 27, 1934, TO ENABLE THE COMPANY TO
WORK OUT ADJUSTMENT TO THE PLANT'S OPERATIONS, AND ACCORDINGLY IT
GOVERNED THEIR RELATION WITH PETITIONER FROM AUGUST 26, 1934. 

THE COMPANY HAS INSISTED THAT ARTICLE 6 DID NOT BECOME APPLICABLE TO
RESPONDENTS UPON THE TRANSFER AND THAT IT MADE NO AGREEMENT TO APPLY
ARTICLE 6, OTHER THAN TO FOLLOW IT AS CLOSELY AS POSSIBLE, PRIOR TO
OCTOBER 31, 1938, WHEN IT AND THE BROTHERHOOD EVENTUALLY AGREED TO
PLACE WHITING YARD CREWS ON FIXED STARTING TIME, UNDER CIRCUMSTANCES TO
BE NOTED. 

WHICHEVER VERSION IS TRUE, A LONG CONTROVERSY RESULTED.  THE CARRIER
CONTINUED TO FOLLOW THE FORMER PRACTICE, ALTHOUGH DEPARTURES FROM THE
SCHEDULE WERE REDUCED, AS IT CLAIMS, IN CONFORMITY WITH THE ORAL
UNDERTAKING TO OBSERVE IT AS FAR AS POSSIBLE.  THE WORK WENT ON WITHOUT
INTERRUPTION.  BUT NUMEROUS COMPLAINTS ON ACCOUNT OF DEPARTURES WERE
MADE THROUGH LOCAL OFFICERS OF THE BROTHERHOOD.  TIME SLIPS WERE FILED
BY THE EMPLOYEES.  FREQUENT NEGOTIATIONS TOOK PLACE.  NONE HOWEVER
RESULTED IN A SETTLEMENT PRIOR TO OCTOBER 31, 1938. 

IN THIS STATE OF AFFAIRS, RESPONDENTS AUTHORIZED THE BROTHERHOOD TO
FILE COMPLAINT WITH THE NATIONAL RAILROAD ADJUSTMENT BOARD FOR
VIOLATION OF ARTICLE 6.  THIS WAS DONE ON NOVEMBER 23, 1936.  THE
"STATEMENT OF CLAIM" WAS SIGNED AND FILED BY WILLIAMS, CHAIRMAN OF THE
GENERAL GRIEVANCE COMMITTEE.  IT ASSERTED THAT THE CARRIER, HAVING
"PLACED THE EMPLOYEES UNDER THE AGREEMENT OF THE YARDMEN," HAD "FAILED
TO PUT INTO EFFECT THE STARTING TIME PROVISIONS" OF ARTICLE 6, AND
DENIED THAT VIOLATION WAS JUSTIFIED EITHER BECAUSE THE CARRIER HAD
AGREED WITH THE ENGINEERS TO FOLLOW THE FORMERLY PREVAILING PRACTICE OR
BY THE CARRIER'S CLAIM THAT THE WORK COULD BE DONE IN NO OTHER WAY. 
THE SUBMISSION WAS INTENDED TO SECURE COMPLIANCE.  THERE WAS NO PRAYER
FOR MONEY DAMAGES.  PETITIONER MAINTAINED THAT ARTICLE 6 WAS NOT
APPLICABLE. 

THE BOARD, FOLLOWING ITS CUSTOMARY PROCEDURE,  FN4  DOCKETED THE
CLAIM AS NO. 3537, NOTIFIED THE CARRIER AND THE UNION THAT THE CASE,
WITH MANY OTHERS DOCKETED AT THE SAME TIME, WAS "ASSUMED TO BE
COMPLETE," AND FORWARDED TO EACH COPIES OF THE OTHER'S SUBMISSIONS. 
THE RECORD DOES NOT DISCLOSE WHAT FOLLOWED UNTIL NEARLY TWO YEARS
LATER. 

ON OCTOBER 31, 1938, WILLIAMS AND JOHNSON, SECRETARY OF THE
BROTHERHOOD, TWO OF THE GRIEVANCE COMMITTEE'S THREE MEMBERS, ACCEPTED
AN OFFER MADE BY PETITIONER'S PRESIDENT, ROGERS, TO SETTLE THE CLAIM. 
THE SETTLEMENT TOOK THE FORM OF A PROPOSAL, MADE IN A LETTER BY ROGERS
TO WILLIAMS, TO SETTLE SOME 61 DIFFERENT CLAIMS, INCLUDING "LABOR BOARD
DOCKET NO. 3537 - STARTING TIME OF SWITCH ENGINES IN WHITING S.O.
YARD."  WILLIAMS AND JOHNSON ENDORSED ACCEPTANCE FOR THE BROTHERHOOD
AND THE YARDMEN ON THE LETTER.  BECAUSE OF ITS IMPORTANCE, PERTINENT
PORTIONS ARE SET FORTH IN THE MARGIN.  FN5  ON THE DAY THE SETTLEMENT
WAS CONCLUDED ROGERS AND WILLIAMS ADVISED THE BOARD OF IT BY LETTER AND
JOINTLY REQUESTED THAT THE CASE BE WITHDRAWN FROM THE DOCKET, WHICH
ACCORDINGLY WAS DONE. 

NOTWITHSTANDING THE SETTLEMENT, A FURTHER DISPUTE AROSE.  IN MARCH,
1939, THE BROTHERHOOD, THROUGH WILLIAMS, REQUESTED THE CARRIER TO
FURNISH A COMPLETE LIST OF CREWS IN THE WHITING YARD STARTED AT TIMES
OTHER THAN THOSE FIXED BY ARTICLE 6 FROM AUGUST 27, 1934, TO NOVEMBER
15, 1938, WHEN THE SETTLEMENT BECAME EFFECTIVE.  THE COMPANY DECLINED
TO FURNISH THE LIST, STATING IT WAS AT A LOSS TO UNDERSTAND THE REASON
FOR THE REQUEST IN VIEW OF THE SETTLEMENT. 

THE UPSHOT OF THE DISPUTE WAS THE FILING OF ANOTHER CLAIM WITH THE
BOARD, DOCKET NO. 7324, ON MAY 18, 1939, BY WILLIAMS, ACTING FOR THE
BROTHERHOOD.  THIS SUBMISSION WAS "FOR ONE DAY'S PAY AT TIME AND ONE
HALF FOR EACH FOREMAN AND EACH HELPER FOR EACH DAY THEY WERE REQUIRED
TO WORK IN YARD SERVICE IN THE WHITING (STANDARD OIL COMPANY) YARD, IN
VIOLATION OF THE FIXED STARTING TIME PROVIDED FOR IN ARTICLE NO. 6 OF
THE YARDMEN'S AGREEMENT  ...  EFFECTIVE JANUARY 1, 1927, AND APPLICABLE
TO WHITING (STANDARD OIL COMPANY) YARDMEN, JULY 27, 1934, FROM DATES OF
AUGUST 27, 1934, UNTIL NOVEMBER 14, 1938, INCLUSIVE." 

THE SUBMISSION NOT ONLY MAINTAINED THE APPLICABILITY OF ARTICLE 6 AND
ACCRUAL OF THE INDIVIDUAL CLAIMS ASSERTED.  IT ALSO MAINTAINED THAT THE
SETTLEMENT OF OCTOBER 31, 1938, WAS EFFECTIVE ONLY TO FIX THE STARTING
TIME FOR THE FUTURE AND HAD NO EFFECT TO WAIVE OR DETERMINE INDIVIDUAL
CLAIMS FOR PENALTY DAMAGES ACCRUED PRIOR TO THE SETTLEMENT.  FN6 

THE CARRIER'S SUBMISSION REITERATED ITS POSITION IN CASE NO. 3537. 
IT ALSO RELIED UPON THE SETTLEMENT AS PRECLUDING LATER ASSERTION OF ANY
CLAIM, INDIVIDUAL OR COLLECTIVE, BASED UPON OCCURRENCES PRIOR TO THE
DATE OF THE SETTLEMENT. 

THE MATTER WENT TO DECISION BY THE BOARD.  UNDER THE PROCEDURE
PRESCRIBED IN CASE OF DEADLOCK, CF. SEC. 3 FIRST (1), A REFEREE WAS
CALLED IN.  THE AWARD WAS MADE BY THE FIRST DIVISION ON SEPTEMBER 6,
1940.  IT SUSTAINED THE BOARD'S JURISDICTION,  FN7  FOUND THAT "THE
PARTIES TO SAID DISPUTE WERE GIVEN DUE NOTICE OF HEARING THEREON," AND
HELD THAT "THE EVIDENCE SHOWS THAT THE PARTIES TO THE AGREEMENT
DISPOSED OF THE CLAIM HERE MADE BY THE LETTER OF CARRIER DATED OCTOBER
28, 1938, ACCEPTED BY EMPLOYEES OCTOBER 31, 1938."  ACCORDINGLY THE
CLAIM WAS "DENIED PER FINDINGS." 

THEREAFTER, ON NOVEMBER 19, 1940, THE PRESENT SUIT WAS INSTITUTED. 
AS HAS BEEN NOTED, THE CASE COMES HERE AFTER A SUMMARY JUDGMENT
RENDERED ON THE CARRIER'S MOTION, SUPPORTED BY THE AFFIDAVIT OF ITS
VICE PRESIDENT.  THIS IN EFFECT SET UP THE COMPROMISE AGREEMENT AND THE
AWARD IN CASE NO. 7324 AS BASES FOR THE JUDGMENT SOUGHT. 

THE RANGE AND PRECISE NATURE OF THE ISSUES MAY BE SUMMARIZED BEST
PERHAPS AS THEY WERE SHAPED UPON RESPONDENTS' OPPOSITION TO THE
CARRIER'S MOTION.  THEY DENIED THAT EITHER WILLIAMS OR THE UNION HAD
AUTHORITY TO RELEASE THEIR INDIVIDUAL CLAIMS OR TO SUBMIT THEM FOR
DECISION BY THE BOARD.  THEY RELIED UPON PROVISIONS OF THE
BROTHERHOOD'S CONSTITUTION AND RULES,  FN8  OF WHICH THE CARRIER WAS
ALLEGED TO HAVE KNOWLEDGE, AS FORBIDDING UNION OFFICIALS TO RELEASE
INDIVIDUAL CLAIMS OR TO SUBMIT THEM TO THE BOARD "WITHOUT SPECIFIC
AUTHORITY SO TO DO GRANTED BY THE INDIVIDUAL MEMBERS THEMSELVES"; AND
DENIED THAT SUCH AUTHORITY IN EITHER RESPECT HAD BEEN GIVEN. 

THE VALIDITY AND THE CONCLUSIVE EFFECT OF THE AWARD WERE CHALLENGED
ALSO UPON OTHER GROUNDS, AMONG THEM THAT RESPONDENTS INDIVIDUALLY
RECEIVED NO NOTICE OF THE SUBMISSION OR THE HEARING UNTIL AFTER THE
AWARD WAS MADE; THAT SINCE THE AWARD DENIED A CLAIM FOR MONEY DAMAGES,
IT WAS WITHIN THE EXCEPTION OF SEC. 3 FIRST (M), WHICH PROVIDES THAT
"THE AWARDS SHALL BE FINAL AND BINDING UPON BOTH PARTIES TO THE
DISPUTE, EXCEPT IN SO FAR AS THEY SHALL CONTAIN A MONEY AWARD," AND
THEREFORE DID NOT PRECLUDE THIS SUIT; AND THAT THE ACT, IF CONSTRUED TO
MAKE THE AWARD CONCLUSIVE, WOULD VIOLATE THE FIFTH AMENDMENT'S DUE
PROCESS PROVISION BY DENYING JUDICIAL REVIEW TO DEFEATED EMPLOYEES,
THOUGH ALLOWING IT TO DEFEATED EMPLOYERS.  CF. SEC. 3 FIRST (P), (Q);
WASHINGTON TERMINAL CO. V. BOSWELL, 124 F.2D 235, AFFIRMED BY AN
EQUALLY DIVIDED COURT, 319 U.S. 732. 

FINALLY RESPONDENTS SUGGESTED MOST SWEEPINGLY THAT THE BOARD MAY ACT
"MERELY AS AN ARBITRATOR," WITH THE RESULT THAT "ANY DECISIONS
THEREUNDER ARE VOID BECAUSE IT PASSES ON MATTERS AND BASES ITS DECISION
AND ITS OPINION ON LAW AND FACT WHICH IS CONTRARY TO PUBLIC POLICY." 
THE PRAYER WAS THAT THE COURT OVERRULE THE CARRIER'S MOTION FOR SUMMARY
JUDGMENT AND, IN DOING SO, DETERMINE THAT THE RELEASE WAS NOT
EFFECTIVE; THE AWARD WAS NOT A FINAL ADJUDICATION OF THE CLAIMS; AND
THE AWARD WAS VOID FOR LACK OF JURISDICTION OF THE PARTIES OR THE
SUBJECT MATTER OR "BECAUSE SAID ACT UNDER WHICH AWARD WAS ENTERED IS
UNCONSTITUTIONAL." 

THE DISTRICT COURT'S JUDGMENT RESTED SQUARELY ON THE CONCLUSIVE
EFFECT OF THE AWARD IN DOCKET NO. 7324.  IT DID NOT INDICATE WHETHER IT
REGARDED THE BROTHERHOOD'S AUTHORITY TO SUBMIT THE CLAIMS AND APPEAR
FOR THE EMPLOYEES AS DERIVED FROM THE STATUTE OR, APART FROM THE
STATUTE, AS A MATTER OF LAW UPON THE PARTICULAR FACTS.  BUT IT MUST BE
TAKEN TO HAVE HELD THAT, UPON THE PLEADINGS AND THE AFFIDAVITS, NO
GENUINE ISSUE OF MATERIAL FACT WAS PRESENTED, FED. RULES CIV. PROC.,
RULE 56(C), AND THEREFORE THAT IT WAS IMMATERIAL IF, AS ALLEGED,
RESPONDENTS HAD NOT INDIVIDUALLY GIVEN THE BROTHERHOOD OR WILLIAMS
SPECIFIC AUTHORITY TO SUBMIT THEIR CLAIMS FOR DECISION OR REPRESENT
THEM IN THE HEARINGS. 

THE COURT OF APPEALS, HOWEVER, MADE NO REFERENCE TO THE ISSUES
CONCERNING THE AWARD AND ITS EFFECT UPON THE CLAIMS.  BUT ITS JUDGMENT
MUST BE TAKEN TO HAVE DETERMINED IMPLICITLY THAT NONE OF PETITIONER'S
CONTENTIONS IN THESE RESPECTS IS VALID. 

THE ISSUES ARE NOT MERELY, AS THE COURT OF APPEALS ASSUMED, WHETHER
THE BROTHERHOOD HAD AUTHORITY TO COMPROMISE AND SETTLE THE CLAIMS BY
AGREEMENT WITH THE CARRIER AND WHETHER ON THE RECORD THIS PRESENTS A
QUESTION OF FACT.  FOR PETITIONER INSISTS, AND THE DISTRICT COURT HELD,
THAT THE AWARD OF THE BOARD WAS VALIDLY MADE, AND IS FINAL, PRECLUDING
JUDICIAL REVIEW.  WE DO NOT REACH THE QUESTIONS OF FINALITY, WHICH TURN
UPON CONSTRUCTION OF THE STATUTORY PROVISIONS AND THEIR CONSTITUTIONAL
VALIDITY AS CONSTRUED.  FN9  THOSE QUESTIONS SHOULD NOT BE DETERMINED
UNLESS THE AWARD WAS VALIDLY MADE, WHICH PRESENTS, IN OUR OPINION, THE
CRUCIAL QUESTION.  RESPONDENTS ATTACK THE VALIDITY AND LEGAL
EFFECTIVENESS OF THE AWARD IN THREE WAYS.  TWO STRIKE AT ITS VALIDITY
ON NARROW GROUNDS.  RESPONDENTS SAY THE BROTHERHOOD HAD NO POWER TO
SUBMIT THE DISPUTE FOR DECISION BY THE BOARD WITHOUT AUTHORITY GIVEN BY
EACH OF THEM INDIVIDUALLY AND THAT NO SUCH AUTHORITY WAS GIVEN.  THEY
ALSO MAINTAIN THAT THEY WERE ENTITLED TO HAVE NOTICE INDIVIDUALLY OF
THE PROCEEDINGS BEFORE THE BOARD AND NONE WAS GIVEN.    THE THIRD AND
MOST SWEEPING CONTENTION UNDERCUTS ALL OTHER ISSUES CONCERNING THE
AWARD'S EFFECTS, WHETHER FOR VALIDITY OR FOR FINALITY.  IN SUBSTANCE IT
IS THAT THE AWARD, WHEN RENDERED, AMOUNTS TO NOTHING MORE THAN AN
ADVISORY OPINION.  THE CONTENTION, FOUNDED UPON LANGUAGE OF THE OPINION
IN MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630, REGARDS THE ACT'S
ENTIRE SCHEME FOR THE SETTLEMENT OF GRIEVANCES AS WHOLLY CONCILIATORY
IN CHARACTER, INVOLVING NO ELEMENT OF LEGAL EFFECTIVENESS, WITH THE
CONSEQUENCE THAT THE PARTIES ARE ENTIRELY FREE TO ACCEPT OR IGNORE THE
BOARD'S DECISION.    AT THE OUTSET WE PUT ASIDE THIS BROADEST
CONTENTION AS INCONSISTENT WITH THE ACT'S TERMS, PURPOSES AND
LEGISLATIVE HISTORY.  FN10  THE MOORE CASE INVOLVED NO QUESTION
CONCERNING THE VALIDITY OR THE LEGAL EFFECTIVENESS OF AN AWARD WHEN
RENDERED.  FN11  NOR DID IT PURPORT TO DETERMINE THAT THE ACT CREATES
NO LEGAL OBLIGATIONS THROUGH AN AWARD OR OTHERWISE.  APART FROM THE
AFFIRMANCE BY EQUAL DIVISION IN WASHINGTON TERMINAL CO. V. BOSWELL,
SUPRA, BOTH PRIOR AND LATER DECISIONS HERE ARE WHOLLY INCONSISTENT WITH
SUCH A VIEW OF ITS EFFECTS.  CF. VIRGINIAN R. CO. V. SYSTEM FEDERATION,
300 U.S. 515; TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548; FN12
SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297; GENERAL
COMMITTEE V. M.-K.-T.R. CO., 320 U.S. 323; GENERAL COMMITTEE V.
SOUTHERN PACIFIC CO., 320 U.S. 338. 

       I 

THE DIFFERENCE BETWEEN DISPUTES OVER GRIEVANCES AND DISPUTES
CONCERNING THE MAKING OF COLLECTIVE AGREEMENTS IS TRADITIONAL IN
RAILWAY LABOR AFFAIRS.  IT HAS ASSUMED LARGE IMPORTANCE IN THE RAILWAY
LABOR ACT OF 1934, SUBSTANTIVELY AND PROCEDURALLY.  FN13  IT DIVIDES
THE JURISDICTION AND FUNCTIONS OF THE ADJUSTMENT BOARD FROM THOSE OF
THE MEDIATION BOARD, GIVING THEM THEIR DISTINCT CHARACTERS.  IT ALSO
AFFECTS THE PARTS TO BE PLAYED BY THE COLLECTIVE AGENT AND THE
REPRESENTED EMPLOYEES, FIRST IN NEGOTIATIONS FOR SETTLEMENT IN
CONFERENCE AND LATER IN THE QUITE DIFFERENT PROCEDURES WHICH THE ACT
CREATES FOR DISPOSING OF THE TWO TYPES OF DISPUTE.  CF. SECS. 3, 4. 

THE STATUTE FIRST MARKS THE DISTINCTION IN SEC. 2, WHICH STATES AS
AMONG THE ACT'S FIVE GENERAL PURPOSES:  "(4) TO PROVIDE FOR THE PROMPT
AND ORDERLY SETTLEMENT OF ALL DISPUTES CONCERNING RATES OF PAY, RULES,
OR WORKING CONDITIONS; (5) TO PROVIDE FOR THE PROMPT AND ORDERLY
SETTLEMENT OF ALL DISPUTES GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS COVERING RATES OF PAY,
RULES, OR WORKING CONDITIONS."  THE TWO SORTS OF DISPUTE ARE SHARPLY
DISTINGUISHED,  FN14  THOUGH THERE ARE POINTS OF COMMON TREATMENT. 
NEVERTHELESS, IT IS CLEAR FROM THE ACT ITSELF, FROM THE HISTORY OF
RAILWAY LABOR DISPUTES AND FROM THE LEGISLATIVE HISTORY OF THE VARIOUS
STATUTES WHICH HAVE DEALT WITH THEM,  FN15  THAT CONGRESS HAS DRAWN
MAJOR LINES OF DIFFERENCE BETWEEN THE TWO CLASSES OF CONTROVERSY. 

THE FIRST RELATES TO DISPUTES OVER THE FORMATION OF COLLECTIVE
AGREEMENTS OR EFFORTS TO SECURE THEM.  THEY ARISE WHERE THERE IS NO
SUCH AGREEMENT OR WHERE IT IS SOUGHT TO CHANGE THE TERMS OF ONE, AND
THEREFORE THE ISSUE IS NOT WHETHER AN EXISTING AGREEMENT CONTROLS THE
CONTROVERSY.  THEY LOOK TO THE ACQUISITION OF RIGHTS FOR THE FUTURE,
NOT TO ASSERTION OF RIGHTS CLAIMED TO HAVE VESTED IN THE PAST. 

THE SECOND CLASS, HOWEVER, CONTEMPLATES THE EXISTENCE OF A COLLECTIVE
AGREEMENT ALREADY CONCLUDED OR, AT ANY RATE, A SITUATION IN WHICH NO
EFFORT IS MADE TO BRING ABOUT A FORMAL CHANGE IN TERMS OR TO CREATE A
NEW ONE.  THE DISPUTE RELATES EITHER TO THE MEANING OR PROPER
APPLICATION OF A PARTICULAR PROVISION WITH REFERENCE TO A SPECIFIC
SITUATION OR TO AN OMITTED CASE.  IN THE LATTER EVENT THE CLAIM IS
FOUNDED UPON SOME INCIDENT OF THE EMPLOYMENT RELATION, OR ASSERTED ONE,
INDEPENDENT OF THOSE COVERED BY THE COLLECTIVE AGREEMENT, E.G., CLAIMS
ON ACCOUNT OF PERSONAL INJURIES.  IN EITHER CASE THE CLAIM IS TO RIGHTS
ACCRUED, NOT MERELY TO HAVE NEW ONES CREATED FOR THE FUTURE. 

IN GENERAL THE DIFFERENCE IS BETWEEN WHAT ARE REGARDED TRADITIONALLY
AS THE MAJOR AND THE MINOR DISPUTES OF THE RAILWAY LABOR WORLD.  FN16
THE FORMER PRESENT THE LARGE ISSUES ABOUT WHICH STRIKES ORDINARILY
ARISE WITH THE CONSEQUENT INTERRUPTIONS OF TRAFFIC THE ACT SOUGHT TO
AVOID.  BECAUSE THEY MORE OFTEN INVOLVE THOSE CONSEQUENCES AND BECAUSE
THEY SEEK TO CREATE RATHER THAN TO ENFORCE CONTRACTUAL RIGHTS, THEY
HAVE BEEN LEFT FOR SETTLEMENT ENTIRELY TO THE PROCESSES OF
NONCOMPULSORY ADJUSTMENT. 

THE SO-CALLED MINOR DISPUTES, ON THE OTHER HAND, INVOLVING
GRIEVANCES, AFFECT THE SMALLER DIFFERENCES WHICH INEVITABLY APPEAR IN
THE CARRYING OUT OF MAJOR AGREEMENTS AND POLICIES OR ARISE INCIDENTALLY
IN THE COURSE OF AN EMPLOYMENT.  THEY REPRESENT SPECIFIC MALADJUSTMENTS
OF A DETAILED OR INDIVIDUAL QUALITY.  THEY SELDOM PRODUCE STRIKES,
THOUGH IN EXAGGERATED INSTANCES THEY MAY DO SO.  FN17  BECAUSE OF THEIR
COMPARATIVELY MINOR CHARACTER AND THE GENERAL IMPROBABILITY OF THEIR
CAUSING INTERRUPTION OF PEACEFUL RELATIONS AND OF TRAFFIC, THE 1934 ACT
SETS THEM APART FROM THE MAJOR DISPUTES AND PROVIDES FOR VERY DIFFERENT
TREATMENT. 

BROADLY, THE STATUTE AS AMENDED MARKS OUT TWO DISTINCT ROUTES FOR
SETTLEMENT OF THE TWO CLASSES OF DISPUTE, RESPECTIVELY, EACH CONSISTING
OF THREE STAGES.  THE ACT TREATS THE TWO TYPES OF DISPUTE ALIKE IN
REQUIRING NEGOTIATION AS THE FIRST STEP TOWARD SETTLEMENT AND THEREFORE
IN CONTEMPLATING VOLUNTARY ACTION FOR BOTH AT THIS STAGE, IN THE SENSE
THAT AGREEMENT IS SOUGHT AND CANNOT BE COMPELLED.  TO INDUCE AGREEMENT,
HOWEVER, THE DUTY TO NEGOTIATE IS IMPOSED FOR BOTH GRIEVANCES AND MAJOR
DISPUTES.  FN18 

BEYOND THE INITIAL STAGES OF NEGOTIATION AND CONFERENCE, HOWEVER, THE
PROCEDURES DIVERGE.  "MAJOR DISPUTES" GO FIRST TO MEDIATION UNDER THE
AUSPICES OF THE NATIONAL MEDIATION BOARD; IF THAT FAILS, THEN TO
ACCEPTANCE OR REJECTION OF ARBITRATION, CF. SEC. 7; TRAINMEN V. TOLEDO,
P. & W.R. CO., 321 U.S. 50; AND FINALLY TO POSSIBLE PRESIDENTIAL
INTERVENTION TO SECURE ADJUSTMENT.  SEC. 10.  FOR THEIR SETTLEMENT THE
STATUTORY SCHEME RETAINS THROUGHOUT THE TRADITIONAL VOLUNTARY PROCESSES
OF NEGOTIATION, MEDIATION, VOLUNTARY ARBITRATION, AND CONCILIATION. 
EVERY FACILITY FOR BRINGING ABOUT AGREEMENT IS PROVIDED AND PRESSURES
FOR MOBILIZING PUBLIC OPINION ARE APPLIED.  THE PARTIES ARE REQUIRED TO
SUBMIT TO THE SUCCESSIVE PROCEDURES DESIGNED TO INDUCE AGREEMENT.  SEC.
5 FIRST (B).  BUT COMPULSIONS GO ONLY TO INSURE THAT THOSE PROCEDURES
ARE EXHAUSTED BEFORE RESORT CAN BE HAD TO SELF-HELP.  NO AUTHORITY IS
EMPOWERED TO DECIDE THE DISPUTE AND NO SUCH POWER IS INTENDED, UNLESS
THE PARTIES THEMSELVES AGREE TO ARBITRATION. 

THE COURSE PRESCRIBED FOR THE SETTLEMENT OF GRIEVANCES IS VERY
DIFFERENT BEYOND THE INITIAL STAGE.  THEREAFTER THE ACT DOES NOT LEAVE
THE PARTIES WHOLLY FREE, AT THEIR OWN WILL, TO AGREE OR NOT TO AGREE. 
ON THE CONTRARY, ONE OF THE MAIN PURPOSES OF THE 1934 AMENDMENTS WAS TO
PROVIDE A MORE EFFECTIVE PROCESS OF SETTLEMENT.  FN19 

PRIOR TO 1934 THE PARTIES WERE FREE AT ALL TIMES TO GO TO COURT TO
SETTLE THESE DISPUTES.  NOTWITHSTANDING THE CONTRARY INTENT OF THE 1926
ACT, EACH ALSO HAD THE POWER, IF NOT THE RIGHT, TO DEFEAT THE INTENDED
SETTLEMENT OF GRIEVANCES BY DECLINING TO JOIN IN CREATING THE LOCAL
BOARDS OF ADJUSTMENT PROVIDED FOR BY THAT ACT.  THEY EXERCISED THIS
POWER TO THE LIMIT.  DEADLOCK BECAME THE COMMON PRACTICE, MAKING
DECISION IMPOSSIBLE.  THE RESULT WAS A COMPLETE BREAKDOWN IN THE
PRACTICAL WORKING OF THE MACHINERY.  GRIEVANCES ACCUMULATED AND
STAGNATED UNTIL THE MASS ASSUMED THE PROPORTIONS OF A MAJOR DISPUTE. 
SEVERAL ORGANIZATIONS TOOK STRIKE BALLOTS AND THUS THREATENED TO
INTERRUPT TRAFFIC, A FACTOR WHICH AMONG OTHERS INDUCED THE COORDINATOR
OF TRANSPORTATION TO BECOME THE PRINCIPAL AUTHOR AND ADVOCATE OF THE
AMENDMENTS.  THE SPONSOR IN THE HOUSE INSISTED THAT CONGRESS ACT UPON
THEM BEFORE ADJOURNMENT FOR FEAR THAT IF NO ACTION WERE TAKEN A
RAILROAD CRISIS MIGHT TAKE PLACE.  FN20  THE OLD MEDIATION BOARD WAS
HELPLESS.  FN21  TO BREAK THIS LOG JAM, AND AT THE SAME TIME TO GET
GRIEVANCES OUT OF THE WAY OF THE SETTLING OF MAJOR DISPUTES THROUGH THE
FUNCTIONING OF THE MEDIATION BOARD, THE ADJUSTMENT BOARD WAS CREATED
AND GIVEN POWER TO DECIDE THEM.  FN22 

THE PROCEDURE ADOPTED IS NOT ONE OF MEDIATION AND CONCILIATION ONLY,
LIKE THAT PROVIDED FOR MAJOR DISPUTES UNDER THE AUSPICES OF THE
MEDIATION BOARD.  ANOTHER TRIBUNAL OF VERY DIFFERENT CHARACTER IS
ESTABLISHED WITH "JURISDICTION" TO DETERMINE GRIEVANCES AND MAKE AWARDS
CONCERNING THEM.  EACH PARTY TO THE DISPUTE MAY SUBMIT IT FOR DECISION,
WHETHER OR NOT THE OTHER IS WILLING, PROVIDED HE HAS HIMSELF DISCHARGED
THE INITIAL DUTY OF NEGOTIATION.  FN23  SEC. 3 FIRST (I).  RIGHTS OF
NOTICE, HEARING, AND PARTICIPATION OR REPRESENTATION ARE GIVEN.  SEC. 3
FIRST (J).  IN SOME INSTANCES JUDICIAL REVIEW AND ENFORCEMENT OF AWARDS
ARE EXPRESSLY PROVIDED OR ARE CONTEMPLATED.  SEC. 3 FIRST (P); CF. SEC.
3 FIRST (M).  WHEN THIS IS NOT DONE, THE ACT PURPORTS TO MAKE THE
BOARD'S DECISIONS "FINAL AND BINDING."  SEC. 3 FIRST (M). 

THE PROCEDURE IS IN TERMS AND PURPOSE VERY DIFFERENT FROM THE
PREEXISTING SYSTEM OF LOCAL BOARDS.  THAT SYSTEM WAS IN FACT AND EFFECT
NOTHING MORE THAN ONE FOR WHAT RESPONDENTS CALL "VOLUNTARY
ARBITRATION."  NO DISPUTE COULD BE SETTLED UNLESS SUBMITTED BY
AGREEMENT OF ALL PARTIES.  WHEN ONE WAS SUBMITTED, DEADLOCK WAS COMMON
AND THERE WAS NO WAY OF ESCAPE.  THE ADJUSTMENT BOARD WAS CREATED TO
REMOVE THE SETTLEMENT OF GRIEVANCES FROM THIS STAGNATING PROCESS AND
BRING THEM WITHIN A GENERAL AND INCLUSIVE PLAN OF DECISION.  FN24  THE
AIM WAS NOT TO DISPENSE WITH AGREEMENT.  IT WAS TO ADD DECISION WHERE
AGREEMENT FAILS AND THUS TO SAFEGUARD THE PUBLIC AS WELL AS PRIVATE
INTERESTS AGAINST THE HARMFUL EFFECTS OF THE PREEXISTING SCHEME. 

                                  II 

THE COLLECTIVE AGENT'S POWER TO ACT IN THE VARIOUS STAGES OF THE
STATUTORY PROCEDURES IS PART OF THOSE PROCEDURES AND NECESSARILY IS
RELATED TO THEM IN FUNCTION, SCOPE AND PURPOSE. 

THE STATUTE ITSELF VESTS EXCLUSIVE AUTHORITY TO NEGOTIATE AND TO
CONCLUDE AGREEMENTS CONCERNING MAJOR DISPUTES IN THE DULY SELECTED
COLLECTIVE AGENT.  CF. VIRGINIAN R. CO. V. SYSTEM FEDERATION, SUPRA.
FN25  SINCE THE ENTIRE STATUTORY PROCEDURE FOR SETTLING MAJOR DISPUTES
IS AIMED ONLY AT SECURING AGREEMENT AND NOT DECISION, UNLESS THE
PARTIES AGREE TO ARBITRATION, THIS EXCLUSIVE AUTHORITY INCLUDES
REPRESENTATION OF THE EMPLOYEES NOT ONLY IN THE STAGE OF CONFERENCE,
BUT ALSO IN THE LATER ONES OF MEDIATION, ARBITRATION AND CONCILIATION. 

WHETHER OR NOT THE AGENT'S EXCLUSIVE POWER EXTENDS ALSO TO THE
SETTLEMENT OF GRIEVANCES, IN CONFERENCE OR IN PROCEEDINGS BEFORE THE
BOARD, PRESENTS MORE DIFFICULT QUESTIONS.  THE STATUTE DOES NOT
EXPRESSLY SO DECLARE.  NOR DOES IT EXPLICITLY EXCLUDE THESE FUNCTIONS. 
THE QUESTIONS THEREFORE ARE TO BE DETERMINED BY IMPLICATION FROM THE
PERTINENT PROVISIONS.  THESE ARE THE ONES RELATING TO RIGHTS OF
PARTICIPATION IN NEGOTIATIONS FOR SETTLEMENT AND IN PROCEEDINGS BEFORE
THE BOARD.  THEY ARE IN PART IDENTICAL WITH THE PROVISIONS RELATING TO
MAJOR DISPUTES, BUT NOT ENTIRELY SO; AND THE DIFFERENCES ARE HIGHLY
MATERIAL. 

THE QUESTIONS OF POWER TO BARGAIN CONCERNING GRIEVANCES, THAT IS, TO
CONCLUDE AGREEMENTS FOR THEIR SETTLEMENT, AND TO REPRESENT AGGRIEVED
EMPLOYEES IN PROCEEDINGS BEFORE THE BOARD ARE NOT IDENTICAL.  BUT THEY
OBVIOUSLY ARE CLOSELY RELATED IN THE STATUTORY SCHEME AND IN FACT.  IF
THE COLLECTIVE AGENT HAS EXCLUSIVE POWER TO SETTLE GRIEVANCES BY
AGREEMENT, A STRONG INFERENCE, THOUGH NOT NECESSARILY CONCLUSIVE, WOULD
FOLLOW FOR ITS EXCLUSIVE POWER TO REPRESENT THE AGGRIEVED EMPLOYEE
BEFORE THE BOARD.  THE CONVERSE ALSO WOULD BE TRUE.  ACCORDINGLY IT
WILL BE CONVENIENT TO CONSIDER THE TWO QUESTIONS TOGETHER. 

THE PRIMARY PROVISIONS AFFECTING THE DUTY TO TREAT ARE FOUND IN SEC.
2 FIRST AND SECOND, IMPOSING THE DUTY GENERALLY AS TO ALL DISPUTES,
BOTH MAJOR AND MINOR, AND SECS. 2 SIXTH AND 3 FIRST (I), TOGETHER WITH
THE PROVISO TO SEC. 2 FOURTH, WHICH APPLY SPECIALLY TO GRIEVANCES. 
THESE SECTIONS IN MATERIAL PART ARE SET FORTH IN THE MARGIN,  FN26
EXCEPT THE PROVISO WHICH IS AS FOLLOWS:  "PROVIDED, THAT NOTHING IN
THIS ACT SHALL BE CONSTRUED TO PROHIBIT A CARRIER FROM PERMITTING AN
EMPLOYEE, INDIVIDUALLY, OR LOCAL REPRESENTATIVES OF EMPLOYEES FROM
CONFERRING WITH MANAGEMENT DURING WORKING HOURS WITHOUT LOSS OF TIME,
OR TO PROHIBIT A CARRIER FROM FURNISHING FREE TRANSPORTATION TO ITS
EMPLOYEES WHILE ENGAGED IN THE BUSINESS OF A LABOR ORGANIZATION." 
FN27 

RELATING TO PARTICIPATION IN THE BOARD'S PROCEEDINGS, IN ADDITION TO
THE CONCLUDING SENTENCE OF SEC. 3 FIRST (I), SEE NOTE 26, IS SEC. 3
FIRST (J), AS FOLLOWS:  "PARTIES MAY BE HEARD EITHER IN PERSON, BY
COUNSEL, OR BY OTHER REPRESENTATIVES, AS THEY MAY RESPECTIVELY ELECT,
AND THE SEVERAL DIVISIONS OF THE ADJUSTMENT BOARD SHALL GIVE DUE NOTICE
OF ALL HEARINGS TO THE EMPLOYEE OR EMPLOYEES AND THE CARRIER OR
CARRIERS INVOLVED IN ANY DISPUTE SUBMITTED TO THEM." 

PETITIONER URGES THAT, NOTWITHSTANDING THE PROVISO AND SEC. 3 FIRST
(J), THE EFFECT OF THE PROVISIONS TAKEN AS A WHOLE IS TO MAKE THE
COLLECTIVE AGENT THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE FOR THE
SETTLEMENT OF ALL DISPUTES, BOTH MAJOR AND MINOR, AND OF THE LATTER
"WHETHER ARISING OUT OF THE APPLICATION OF SUCH (COLLECTIVE) AGREEMENTS
OR OTHERWISE."  THE ARGUMENT RESTS PRIMARILY UPON SECS. 2 FIRST,
SECOND, THIRD, FOURTH, SIXTH, AND 3 FIRST (I).  IT EMPHASIZES THE
CARRIER'S DUTY TO TREAT WITH THE COLLECTIVE REPRESENTATIVE, AS
REINFORCED BY SECS. 2 EIGHTH AND TENTH.  FN28    PETITIONER DOES NOT
SQUARELY DENY THAT THE AGGRIEVED EMPLOYEE MAY CONFER WITH THE CARRIER'S
LOCAL OFFICIALS EITHER PERSONALLY OR THROUGH LOCAL UNION
REPRESENTATIVES IN ACCORDANCE WITH THE PROVISO TO SEC. 2 FOURTH.  BUT
THIS RIGHT, IF IT EXISTS, IS REGARDED APPARENTLY AS AT MOST ONE TO BE
HEARD, SINCE IN PETITIONER'S VIEW THE POWER TO MAKE SETTLEMENT BY
AGREEMENT IS VESTED EXCLUSIVELY IN THE COLLECTIVE AGENT.  CF. SECS. 2
SIXTH AND 3 FIRST (I). 

THE COLLECTIVE AGENT, AS THE CARRIER CONCEIVES THE STATUTE, IS THE
"(REPRESENTATIVES), DESIGNATED AND AUTHORIZED TO CONFER" WITHIN THE
MEANING OF SEC. 2 SECOND, WITHOUT DISTINCTION BETWEEN MAJOR AND MINOR
DISPUTES.  IT IS LIKEWISE THE "REPRESENTATIVE, FOR THE PURPOSES OF THIS
ACT," AGAIN WITHOUT DISTINCTION BETWEEN THE TWO TYPES OF DISPUTE, IN
THE SELECTION OF WHICH BY "THE RESPECTIVE PARTIES" SEC. 2 THIRD FORBIDS
THE OTHER TO INTERFERE.  IT IS ALSO "THE DESIGNATED REPRESENTATIVE" OF
THE EMPLOYEES WITH WHOM, BY SEC. 2 SIXTH, THE CARRIER IS REQUIRED TO
TREAT CONCERNING GRIEVANCES IN CONFERENCE, A PROVISION CONSIDERED TO
CARRY OVER INTO SEC. 3 FIRST (I).  THE LATTER REQUIRES THAT DISPUTES
OVER GRIEVANCES "SHALL BE HANDLED IN THE USUAL MANNER UP TO AND
INCLUDING THE CHIEF OPERATING OFFICER OF THE CARRIER DESIGNATED TO
HANDLE SUCH DISPUTES." 

IN ACCORDANCE WITH THIS VIEW "EITHER PARTY," WITHIN THE FURTHER
PROVISION OF SEC. 3 FIRST (I) AUTHORIZING REFERENCE OF THE DISPUTE TO
THE ADJUSTMENT BOARD "BY PETITION OF THE PARTIES OR BY EITHER PARTY,"
REFERS TO THE CARRIER OR THE COLLECTIVE AGENT, NOT TO THE AGGRIEVED
EMPLOYEE ACTING OTHERWISE THAN BY THE COLLECTIVE AGENT.  HENCE,
"PARTIES" AS USED IN SEC. 3 FIRST (J) IS GIVEN SIMILAR MEANING. 
CONSEQUENTLY THE COLLECTIVE AGENT ALSO HAS EXCLUSIVE POWER TO SUBMIT
THE DISPUTE TO THE BOARD AND TO REPRESENT AGGRIEVED EMPLOYEES BEFORE
IT. 

PETITIONER'S VIEW HAS BEEN ADOPTED, APPARENTLY, IN THE GENERAL
PRACTICE, IF NOT THE FORMALLY DECLARED POLICY OF THE ADJUSTMENT BOARD. 
AND THIS, IT SEEMS, HAS BEEN DUE TO THE POSITION TAKEN CONSISTENTLY BY
THE EMPLOYEES' REPRESENTATIVES ON THE BOARD, OVER THE OPPOSITION OF
CARRIER REPRESENTATIVES.  FN29  THE UNIONS, APPARENTLY, LIKE PETITIONER
IN THIS CASE, INTERPRET THE ACT AS NOT CONTEMPLATING TWO DISTINCT
SYSTEMS FOR THE SETTLEMENT OF DISPUTES, ONE WHOLLY COLLECTIVE FOR MAJOR
DISPUTES, THE OTHER WHOLLY INDIVIDUAL FOR MINOR ONES.  IN THIS VIEW THE
COLLECTIVE AGENT BECOMES A PARTY TO THE COLLECTIVE AGREEMENT BY MAKING
IT, AND ITS INTEREST AS REPRESENTATIVE OF THE COLLECTIVE INTEREST DOES
NOT CEASE WHEN THAT FUNCTION ENDS.  IT REMAINS A PARTY TO THE
AGREEMENT, AS SUCH REPRESENTATIVE, AFTER IT IS MADE; AND CONSEQUENTLY,
IN THAT CAPACITY AND FOR THE PROTECTION OF THE COLLECTIVE INTEREST, IS
CONCERNED WITH THE MANNER IN WHICH THE AGREEMENT MAY BE INTERPRETED AND
APPLIED. 

ACCORDINGLY, PETITIONER URGES THAT THE STATUTE, BOTH BY ITS TERMS AND
BY ITS PURPOSE, CONFERS UPON THE COLLECTIVE AGENT THE SAME EXCLUSIVE
POWER TO DEAL WITH GRIEVANCES, WHETHER BY NEGOTIATION AND CONTRACT, OR
BY PRESENTATION TO THE BOARD WHEN AGREEMENT FAILS, AS IS GIVEN WITH
RESPECT TO MAJOR DISPUTES.  AND THE AGGRIEVED EMPLOYEE'S RIGHTS OF
INDIVIDUAL ACTION ARE LIMITED TO RIGHTS OF HEARING BEFORE THE UNION AND
POSSIBLY ALSO BY THE CARRIER. 

WE THINK THAT SUCH A VIEW OF THE STATUTE'S EFFECTS, IN SO FAR AS IT
WOULD DEPRIVE THE AGGRIEVED EMPLOYEE OF EFFECTIVE VOICE IN ANY
SETTLEMENT AND OF INDIVIDUAL HEARING BEFORE THE BOARD, WOULD BE
CONTRARY TO THE CLEAR IMPORT OF ITS PROVISIONS AND TO ITS POLICY. 

IT WOULD BE DIFFICULT TO BELIEVE THAT CONGRESS INTENDED, BY THE 1934
AMENDMENTS, TO SUBMERGE WHOLLY THE INDIVIDUAL AND MINORITY INTERESTS,
WITH ALL POWER TO ACT CONCERNING THEM, IN THE COLLECTIVE INTEREST AND
AGENCY, NOT ONLY IN FORMING THE CONTRACTS WHICH GOVERN THEIR EMPLOYMENT
RELATION,  FN30  BUT ALSO IN GIVING EFFECT TO THEM AND TO ALL OTHER
INCIDENTS OF THAT RELATION.  ACCEPTANCE OF SUCH A VIEW WOULD REQUIRE
THE CLEAREST EXPRESSION OF PURPOSE.  FOR THIS WOULD MEAN THAT CONGRESS
HAD NULLIFIED ALL PREEXISTING RIGHTS OF WORKERS TO ACT IN RELATION TO
THEIR EMPLOYMENT, INCLUDING PERHAPS EVEN THE FUNDAMENTAL RIGHT TO
CONSULT WITH ONE'S EMPLOYER, EXCEPT AS THE COLLECTIVE AGENT MIGHT
PERMIT.  APART FROM QUESTIONS OF VALIDITY, THE CONCLUSION THAT CONGRESS
INTENDED SUCH CONSEQUENCES COULD BE ACCEPTED ONLY IF IT WERE CLEAR THAT
NO OTHER CONSTRUCTION WOULD ACHIEVE THE STATUTORY AIMS.  FN31 

THE ACT'S PROVISIONS DO NOT REQUIRE SUCH A CONSTRUCTION.  ON THE
CONTRARY THEY APPEAR EXPRESSLY TO PRECLUDE IT.  THE PROVISO TO SEC. 2
FOURTH IN TERMS RESERVES THE RIGHT OF "AN EMPLOYEE INDIVIDUALLY" TO
CONFER WITH MANAGEMENT; AND SEC. 3 FIRST (J) NOT ONLY REQUIRES THE
BOARD TO GIVE "DUE NOTICE OF ALL HEARINGS TO THE EMPLOYEE ...  INVOLVED
IN ANY DISPUTE SUBMITTED  ...," BUT PROVIDES FOR "PARTIES" TO BE HEARD
"EITHER IN PERSON, BY COUNSEL, OR BY OTHER REPRESENTATIVES, AS THEY MAY
RESPECTIVELY ELECT." 

THESE PROVISIONS WOULD BE INAPPOSITE IF THE COLLECTIVE AGENT,
NORMALLY A LABOR UNION AND AN UNINCORPORATED ASSOCIATION, EXCLUSIVELY
WERE CONTEMPLATED.  SUCH ORGANIZATIONS DO NOT AND CANNOT APPEAR AND BE
HEARD "IN PERSON."  NOR WOULD THE PROVISION FOR NOTICE "TO THE EMPLOYEE
... INVOLVED IN ANY DISPUTE" BE EITHER APPROPRIATE OR NECESSARY.  IF
ONLY THE COLLECTIVE REPRESENTATIVE WERE GIVEN RIGHTS OF SUBMISSION,
NOTICE, APPEARANCE AND REPRESENTATION, LANGUAGE MORE APTLY DESIGNED SO
TO LIMIT THOSE RIGHTS WAS READILY AVAILABLE AND WAS ESSENTIAL FOR THE
PURPOSE. 

THIS CONCLUSION ACCORDS FULLY WITH THE TERMS OF THE PROVISO TO SEC. 2
FOURTH.  IT APPEARS TO BE INTENDED AS A QUALIFICATION, IN RESPECT TO
LOSS OF TIME AND FREE TRANSPORTATION, OF THE SECTION'S PRECEDING
PROHIBITIONS AGAINST THE CARRIER'S GIVING FINANCIAL AND OTHER AID TO
LABOR ORGANIZATIONS AND TO EMPLOYEES IN AN EFFORT TO INFLUENCE THEIR
UNION AFFILIATIONS.  FN32  HOWEVER, THE LANGUAGE CLEARLY CONTEMPLATES
ALSO THAT THE INDIVIDUAL EMPLOYEE'S RIGHT TO CONFER WITH THE MANAGEMENT
ABOUT HIS OWN GRIEVANCE IS PRESERVED.  THERE IS SOME INDICATION IN THE
LEGISLATIVE HISTORY TO THIS EFFECT.  FN33  THE RIGHT IS SO FUNDAMENTAL
THAT WE DO NOT BELIEVE THE PURPOSE WAS TO DESTROY IT. CF. 40 OP. ATTY.
GEN., NO. 59, PP. 5, 6(DEC.  29, 1942); HUGHES TOOL CO. V. LABOR BOARD,
147 F.2D 69. 

RIGHTS OF CONFERENCE ARE NOT IDENTICAL WITH RIGHTS OF SETTLEMENT. 
BUT THE PURPOSE OF CONFERENCE AND THE DUTY TO TREAT IS TO BRING ABOUT
AGREEMENT.  THE RIGHT AND THE OBLIGATION TO SHARE IN THE NEGOTIATIONS
ARE RELEVANT TO THEIR AIM.  CONCEIVABLY THE STATUTE MIGHT CONFER THE
RIGHT TO PARTICIPATE IN THE NEGOTIATIONS, THAT IS, TO BE HEARD BEFORE
ANY AGREEMENT IS CONCLUDED, EITHER UPON THE COLLECTIVE AGENT OR UPON
THE AGGRIEVED EMPLOYEE OR EMPLOYEES, AT THE SAME TIME CONFERRING UPON
THE OTHER THE FINAL VOICE IN DETERMINING THE TERMS OF THE SETTLEMENT. 
THIS IS, IN EFFECT, THE POSITION TAKEN BY EACH OF THE PARTIES IN THIS
CASE.  BUT THEY DIFFER CONCERNING WHERE THE FINAL SAY HAS BEEN VESTED. 
PETITIONER MAINTAINS IT HAS BEEN GIVEN TO THE UNION.  RESPONDENTS SAY
IT HAS BEEN LEFT WITH THEM. 

IN THE VIEW WE TAKE THE ACT GUARANTEES TO THE AGGRIEVED EMPLOYEE MORE
THAN MERELY THE RIGHT TO BE HEARD BY THE UNION AND THE CARRIER.  WE
CANNOT SAY THAT THE TERMS OF THE PROVISO TO SEC. 2 FOURTH AND OF SEC. 3
FIRST (J) ARE SO LIMITED.  MOREOVER, SEC. 3 FIRST (P) EXPRESSLY STATES
THAT THE STATUTORY SUIT TO ENFORCE AN AWARD IN FAVOR OF AN AGGRIEVED
EMPLOYEE MAY BE BROUGHT BY "THE PETITIONER," PRESUMABLY THE COLLECTIVE
AGENT OR BY THE EMPLOYEE.  ALL OF THESE PROVISIONS CONTEMPLATE
EFFECTIVE PARTICIPATION IN THE STATUTORY PROCEDURES BY THE AGGRIEVED
EMPLOYEE. 

HIS RIGHTS, TO SHARE IN THE NEGOTIATIONS, TO BE HEARD BEFORE THE
BOARD, TO HAVE NOTICE, AND TO BRING THE ENFORCEMENT SUIT, WOULD BECOME
RIGHTS MORE OF SHADOW THAN OF SUBSTANCE IF THE UNION, BY COMING TO
AGREEMENT WITH THE CARRIER, COULD FORECLOSE HIS CLAIM ALTOGETHER AT THE
THRESHOLD OF THE STATUTORY PROCEDURE.  THIS WOULD BE TRUE IN ANY CASE
WHERE THE EMPLOYEE'S IDEAS OF APPROPRIATE SETTLEMENT MIGHT DIFFER FROM
THE UNION'S.  BUT THE DRASTIC EFFECTS IN CURTAILMENT OF HIS PREEXISTING
RIGHTS TO ACT IN SUCH MATTERS FOR HIS OWN PROTECTION WOULD BE MOST
OBVIOUS IN TWO TYPES OF CASES:  ONE, WHERE THE GRIEVANCE ARISES FROM
INCIDENTS OF THE EMPLOYMENT NOT COVERED BY A COLLECTIVE AGREEMENT, IN
WHICH PRESUMABLY THE COLLECTIVE INTEREST WOULD BE AFFECTED ONLY
REMOTELY, IF AT ALL; THE OTHER, WHERE THE INTEREST OF AN EMPLOYEE NOT A
MEMBER OF THE UNION AND THE COLLECTIVE INTEREST, OR THAT OF THE UNION
ITSELF, ARE OPPOSED OR HOSTILE.  THAT THE STATUTE DOES NOT PURPORT TO
DISCRIMINATE BETWEEN THESE AND OTHER CASES FURNISHES STRONG SUPPORT FOR
BELIEVING ITS PURPOSE WAS NOT TO VEST FINAL AND EXCLUSIVE POWER OF
SETTLEMENT IN THE COLLECTIVE AGENT.  FN34 

WE NEED NOT DETERMINE IN THIS CASE WHETHER CONGRESS INTENDED TO LEAVE
THE SETTLEMENT OF GRIEVANCES ALTOGETHER TO THE INDIVIDUAL WORKERS,
EXCLUDING THE COLLECTIVE AGENT ENTIRELY EXCEPT AS THEY MAY SPECIFICALLY
AUTHORIZE IT TO ACT FOR THEM, OR INTENDED IT ALSO TO HAVE VOICE IN THE
SETTLEMENT AS REPRESENTATIVE OF THE COLLECTIVE INTEREST.  CF. MATTER OF
HUGHES TOOL CO., 56 N.L.R.B. 981, MODIFIED AND ENFORCED, HUGHES TOOL
CO. V. LABOR BOARD, SUPRA.  THE STATUTE DOES NOT EXPRESSLY EXCLUDE
GRIEVANCES FROM THE COLLECTIVE AGENT'S DUTY TO TREAT OR POWER TO SUBMIT
TO THE BOARD.  BOTH COLLECTIVE AND INDIVIDUAL INTERESTS MAY BE
CONCERNED IN THE SETTLEMENT WHERE, AS IN THIS CASE, THE DISPUTE
CONCERNS ALL MEMBERS ALIKE, AND SETTLEMENT HANGS EXCLUSIVELY UPON A
SINGLE COMMON ISSUE OR CAUSE OF DISPUTE ARISING FROM THE TERMS OF A
COLLECTIVE AGREEMENT.  FN35  THOSE INTERESTS COMBINE IN ALMOST INFINITE
VARIETY OF RELATIVE IMPORTANCE IN RELATION TO PARTICULAR GRIEVANCES,
FROM SITUATIONS IN WHICH THE TWO ARE HOSTILE OR IN WHICH THEY BEAR
LITTLE OR NO RELATION OF SUBSTANCE TO EACH OTHER AND OPPOSED TO OTHERS
IN WHICH THEY ARE IDENTIFIED.  FN36 

CONGRESS MADE NO EFFORT TO DEAL SPECIFICALLY WITH THESE VARIATIONS. 
FN37  BUT WHETHER OR NOT THE COLLECTIVE AGENT HAS RIGHTS, INDEPENDENTLY
OF THE AGGRIEVED EMPLOYEE'S AUTHORIZATION, TO ACT AS REPRESENTATIVE OF
THE COLLECTIVE INTEREST AND FOR ITS PROTECTION IN ANY SETTLEMENT,
WHETHER BY AGREEMENT OR IN PROCEEDINGS BEFORE THE BOARD, AN AWARD
CANNOT BE EFFECTIVE AS AGAINST THE AGGRIEVED EMPLOYEE UNLESS HE IS
REPRESENTED INDIVIDUALLY IN THE PROCEEDINGS IN ACCORDANCE WITH THE
RIGHTS OF NOTICE AND APPEARANCE OR REPRESENTATION GIVEN TO HIM BY SEC.
3 FIRST (J).  THOSE RIGHTS ARE SEPARATE AND DISTINCT FROM ANY THE
COLLECTIVE AGENT MAY HAVE TO REPRESENT THE COLLECTIVE INTEREST.  FOR AN
AWARD TO AFFECT THE EMPLOYEE'S RIGHTS, THEREFORE, MORE MUST BE SHOWN
THAN THAT THE COLLECTIVE AGENT APPEARED AND PURPORTED TO ACT FOR HIM. 
IT MUST APPEAR THAT IN SOME LEGALLY SUFFICIENT WAY HE AUTHORIZED IT TO
ACT IN HIS BEHALF.  FN38 

PETITIONER'S CONTRARY VIEW, AS HAS BEEN INDICATED, REGARDS THE
SETTLEMENT OF GRIEVANCES AS PART OF THE COLLECTIVE BARGAINING POWER,
INDISTINGUISHABLE FROM THE MAKING OF COLLECTIVE AGREEMENTS.  THE
ASSUMPTION IGNORES THE MAJOR DIFFERENCE WHICH THE ACT HAS DRAWN BETWEEN
THOSE FUNCTIONS, BOTH IN DEFINING THEM AND IN THE MODES PROVIDED FOR
SETTLEMENT. 

TO SETTLE FOR THE FUTURE ALONE, WITHOUT REFERENCE TO OR EFFECT UPON
THE PAST, IS IN FACT TO BARGAIN COLLECTIVELY, THAT IS, TO MAKE A
COLLECTIVE AGREEMENT.  THAT AUTHORITY IS CONFERRED INDEPENDENTLY OF THE
POWER TO DEAL WITH GRIEVANCES, AS PART OF THE POWER TO CONTRACT
"CONCERNING RATES OF PAY, RULES, OR WORKING CONDITIONS."  IT INCLUDES
THE POWER TO MAKE A NEW AGREEMENT SETTLING FOR THE FUTURE A DISPUTE
CONCERNING THE COVERAGE OR MEANING OF A PREEXISTING COLLECTIVE
AGREEMENT.  FOR THE COLLECTIVE BARGAINING POWER IS NOT EXHAUSTED BY
BEING ONCE EXERCISED; IT COVERS CHANGING THE TERMS OF AN EXISTING
AGREEMENT AS WELL AS MAKING ONE IN THE FIRST PLACE. 

BUT IT DOES NOT COVER CHANGING THEM WITH RETROACTIVE EFFECTS UPON
ACCRUED RIGHTS OR CLAIMS.  FOR IT IS PRECISELY THE DIFFERENCE BETWEEN
MAKING SETTLEMENTS EFFECTIVE ONLY FOR THE FUTURE AND MAKING THEM
EFFECTIVE RETROACTIVELY TO CONCLUDE RIGHTS CLAIMED AS HAVING ALREADY
ACCRUED WHICH MARKS THE STATUTORY BOUNDARY BETWEEN COLLECTIVE
BARGAINING AND THE SETTLEMENT OF GRIEVANCES.  THE LATTER BY EXPLICIT
DEFINITION INCLUDES THE "INTERPRETATION OR APPLICATION" OF EXISTING
AGREEMENTS.  TO REGARD THIS AS PART OF THE COLLECTIVE BARGAINING POWER
IDENTIFIES IT WITH MAKING NEW AGREEMENTS HAVING ONLY PROSPECTIVE
OPERATION; AND BY SO DOING OBLIBERATES THE STATUTE'S BASIC DISTINCTION
BETWEEN THOSE FUNCTIONS.  FN39 

THE BROTHERHOOD HAD POWER, THEREFORE, AS COLLECTIVE AGENT TO MAKE AN
AGREEMENT WITH THE CARRIER, EFFECTIVE FOR THE FUTURE ONLY, TO SETTLE
THE QUESTION OF STARTING TIME, AND THAT POWER WAS DERIVED FROM THE ACT
ITSELF.  IN DEALING WITHIN ITS SCOPE, THE CARRIER WAS NOT REQUIRED TO
LOOK FURTHER THAN THE ACT'S PROVISIONS TO ASCERTAIN THE UNION'S
AUTHORITY.  BUT IT DOES NOT FOLLOW, AS PETITIONER ASSUMES, THAT IT HAD
THE SAME RIGHT TO DEAL WITH THE UNION CONCERNING THE PAST.  THAT ASPECT
OF THE DISPUTE WAS NOT PART OF THE COLLECTIVE AGENT'S EXCLUSIVE
STATUTORY AUTHORITY. 

IF TO EXCLUDE IT SEVERS WHAT OTHERWISE MIGHT BE CONSIDERED ORGANIC,
THE SEVERANCE CLEARLY IS ONE WHICH CONGRESS COULD MAKE AND IS ONE WE
THINK IT HAS MADE, BY ITS DEFINITION OF GRIEVANCES AND BY THE
PROVISIONS FOR INDIVIDUAL PARTICIPATION IN THEIR SETTLEMENT.  IF,
MOREOVER, AS PETITIONER URGES, THIS MAY MAKE THE SETTLEMENT LESS
CONVENIENT THAN IF POWER TO DEAL WITH GRIEVANCES WERE VESTED
EXCLUSIVELY IN THE COLLECTIVE AGENT, THAT CONSEQUENCE MAY BE ADMITTED. 
BUT IT CANNOT OUTWEIGH THE CONSIDERATIONS OF EQUAL OR GREATER FORCE
WHICH WE THINK CONGRESS HAS TAKEN INTO ACCOUNT IN PRESERVING THE
INDIVIDUAL WORKMAN'S RIGHT TO HAVE A VOICE AMOUNTING TO MORE THAN MERE
PROTEST IN THE SETTLEMENT OF CLAIMS ARISING OUT OF HIS EMPLOYMENT. 
FROM THE FACT THAT THE BROTHERHOOD OCCUPIED THE POSITION OF COLLECTIVE
BARGAINING AGENT AND AS SUCH HAD POWER TO DEAL FOR THE FUTURE,
THEREFORE, PETITIONER WAS NOT ENTITLED TO MAKE ANY ASSUMPTION
CONCERNING ITS AUTHORITY TO SETTLE THE CLAIMS ACCRUED FOR THE PAST OR
TO REPRESENT THE CLAIMANTS EXCLUSIVELY IN PROCEEDINGS BEFORE THE
BOARD.  ACCORDINGLY FOR THE UNION TO ACT IN THEIR BEHALF WITH
CONCLUSIVE EFFECT, AUTHORIZATION BY THEM OVER AND ABOVE ANY AUTHORITY
GIVEN BY THE STATUTE WAS ESSENTIAL. 
III 

PETITIONER URGES THAT, APART FROM THE STATUTE, THE FACTS OF RECORD
SHOW AS A MATTER OF LAW THAT RESPONDENTS AUTHORIZED THE BROTHERHOOD TO
SETTLE THE CLAIMS, TO SUBMIT THEM TO THE BOARD, AND TO REPRESENT THEM
IN ITS PROCEEDINGS.  RESPONDENTS DENY THAT AUTHORITY IN ANY OF THESE
RESPECTS WAS GIVEN, EITHER BY INDIVIDUAL AUTHORIZATION OR BY VIRTUE OF
THE BROTHERHOOD'S CONSTITUTION AND RULES; AND THEY INSIST THAT THE
RECORD PRESENTS THESE QUESTIONS AS ISSUES OF FACT. 

STRIPPED OF ITS STATUTORY INFLUENCES, PETITIONER'S ARGUMENT COMES IN
SUBSTANCE TO THIS.  IT IS UNDISPUTED THAT FROM AUGUST 27, 1934, TO
NOVEMBER 23, 1936, WHEN THE COMPLAINT IN DOCKET NO. 3537 WAS FILED,
RESPONDENTS MADE OUT TIME SLIPS AND FILED MANY COMPLAINTS WITH THE
CARRIER'S LOCAL OFFICIALS THROUGH LOCAL OFFICERS OF THE BROTHERHOOD ON
ACCOUNT OF DEPARTURES FROM THE SCHEDULE OF ARTICLE 6.  THE QUESTION OF
THE ARTICLE'S APPLICABILITY WAS A MATTER OF DISCUSSION BETWEEN THE
BROTHERHOOD AND COMPANY OFFICIALS FROM THE TIME OF THE TRANSFER IN
1934.  RESPONDENTS ADMIT HAVING AUTHORIZED THE BROTHERHOOD, AT A
MEETING OF THEIR LOCAL LODGE, TO FILE THE COMPLAINT IN DOCKET NO. 3537
AND THAT THIS COMPLAINT WAS FILED IN FULL COMPLIANCE WITH THE
BROTHERHOOD'S CONSTITUTION AND RULES.  THE SETTLEMENT OF OCTOBER, 1938,
AND THE CONSEQUENT WITHDRAWAL OF THE CLAIM IN DOCKET NO. 3537 WERE MADE
BY THE SAME OFFICIAL, WILLIAMS, WHOM RESPONDENTS HAD AUTHORIZED TO FILE
THE CLAIM AND WITH WHOM, IN EFFECT, BOTH THE COLLECTIVE AGREEMENT AND
THE BROTHERHOOD'S REGULATIONS REQUIRED PETITIONER TO DEAL CONCERNING
THE MATTER.  FN40  MOREOVER, THE COMPLAINT IN DOCKET NO. 7324, FILED IN
MAY, 1939, WAS FILED BY WILLIAMS AND IN THE SAME MANNER AS THE
COMPLAINT IN DOCKET NO. 3537. 

FROM THESE FACTS PETITIONER CONCLUDES THAT RESPONDENTS AUTHORIZED THE
BROTHERHOOD TO SETTLE THE CLAIMS AND TO REPRESENT THEM BEFORE THE
BOARD.  IN ITS VIEW, ALL OF THESE TRANSACTIONS RELATED TO THE SAME
SUBJECT MATTER, NAMELY, WHETHER ARTICLE 6 WAS APPLICABLE IN THE WHITING
YARD, THE ONLY DIFFERENCE BEING THAT THE RELIEF SOUGHT IN THE TWO
PROCEEDINGS WAS NOT THE SAME; AND THAT DIFFERENCE IS NOT MATERIAL. 

RESPONDENTS DIFFER CONCERNING THE EFFECT OF THESE FACTS AND OTHERS
THEY SET FORTH.  THEY ALLEGE THAT UNDER THE BROTHERHOOD'S CONSTITUTION
AND RULES NEITHER WILLIAMS AND JOHNSON NOR THE GENERAL GRIEVANCE
COMMITTEE COULD "REVISE OR CHANGE A GENERAL WAGE 'SCHEDULE' OR
AGREEMENT CONCERNING RATES OF PAY, NOR WORKING CONDITIONS, UNLESS
AUTHORIZED TO DO SO BY A MAJORITY VOTE OF THE LODGES, OR BY A MAJORITY
VOTE OF THE MEMBERSHIP IN THE SYSTEM"; THAT CLAIMS OF INDIVIDUAL
MEMBERS FOR BACK COMPENSATION COULD NOT BE RELEASED WITHOUT SPECIFIC
AUTHORITY GIVEN INDIVIDUALLY; THAT NO SUCH AUTHORITY WAS GIVEN; AND
THAT THE CARRIER HAD KNOWLEDGE OF THESE LIMITATIONS.  THEY FURTHER
ALLEGE THAT WILLIAMS AND JOHNSON FAILED TO NOTIFY THEM OF THE
SETTLEMENT, AS THE BY-LAWS REQUIRED; FN41 AND DENY THAT THEY KNEW OF
THE SETTLEMENT, THE PROCEEDINGS IN DOCKET 7324 OR THE AWARD UNTIL AFTER
THE AWARD WAS MADE, WHEN THEY PROMPTLY REPUDIATED IT.  FN42  THEY SAY
ACCORDINGLY THAT WILLIAMS ACTED WITHOUT AUTHORITY FROM THEM DIRECTLY OR
THROUGH THE BROTHERHOOD'S REGULATIONS IN SUBMITTING AND PRESENTING THE
CLAIMS; AND THAT THE AWARD IS INVALID NOT ONLY FOR THIS REASON BUT ALSO
BECAUSE NO NOTICE OF THE PROCEEDING WAS GIVEN TO THEM. 

IT IS APPARENT THAT THE PARTIES ARE AT ODDS UPON THE INFERENCES TO BE
DRAWN FROM THE FACTS AND THEIR LEGAL EFFECTS RATHER THAN UPON THE FACTS
THEMSELVES.  RESPONDENTS DENY, AND PETITIONER APPARENTLY DOES NOT
CLAIM, THAT THEY AT ANY TIME INDIVIDUALLY AND SPECIFICALLY AUTHORIZED
THE BROTHERHOOD OR ITS OFFICIALS TO COMPROMISE THEIR CLAIMS FOR MONEY
DUE OR TO ACT FOR THEM EXCLUSIVELY IN BOARD PROCEEDINGS CONCERNING
THOSE CLAIMS.  IF THERE IS AN ISSUE IN THIS RESPECT IT IS OBVIOUSLY ONE
OF FACT CONCERNING WHICH EVIDENCE AND FINDINGS WOULD BE REQUIRED. 

THE REAL ISSUES, AS WE VIEW THE RECORD, COME DOWN TO WHETHER
RESPONDENTS ASSENTED, IN LEGAL EFFECT, TO THE FINAL SETTLEMENT OF THEIR
CLAIMS BY THE UNION OR TO EXCLUSIVE REPRESENTATION BY IT IN ANY OF THE
FOLLOWING WAYS:  (1) BY MAKING COMPLAINTS THROUGH LOCAL UNION
OFFICIALS; (2) BY AUTHORIZING THE BROTHERHOOD TO SUBMIT THE COMPLAINT
IN DOCKET NO. 3537; (3) BY VIRTUE OF THE BROTHERHOOD'S REGULATIONS; (4)
BY VIRTUE OF THE COLLECTIVE AGREEMENT. 

THE COLLECTIVE AGREEMENT COULD NOT BE EFFECTIVE TO DEPRIVE THE
EMPLOYEES OF THEIR INDIVIDUAL RIGHTS.  OTHERWISE THOSE RIGHTS WOULD BE
BROUGHT WITHIN THE COLLECTIVE BARGAINING POWER BY A MERE EXERCISE OF
THAT POWER, CONTRARY TO THE PURPORT AND EFFECT OF THE ACT AS EXCEPTING
THEM FROM ITS SCOPE AND RESERVING THEM TO THE INDIVIDUALS AGGRIEVED. 
IN VIEW OF THAT RESERVATION THE ACT CLEARLY DOES NOT CONTEMPLATE THAT
THE RIGHTS SAVED MAY BE NULLIFIED MERELY BY AGREEMENT BETWEEN THE
CARRIER AND THE UNION. 

NOR CAN WE SAY AS A MATTER OF LAW THAT THE MERE MAKING OF COMPLAINTS
THROUGH LOCAL BROTHERHOOD OFFICIALS AMOUNTED TO FINAL AUTHORIZATION TO
THE UNION TO SETTLE THE CLAIMS OR REPRESENT THE EMPLOYEES BEFORE THE
BOARD.  NEITHER THE STATUTE NOR THE UNION'S REGULATIONS PURPORTED TO
GIVE THESE EFFECTS TO THAT CONDUCT.  THE TIME SLIPS APPARENTLY WERE
FILED BY THE EMPLOYEES THEMSELVES.  THE RECORD SHOWS ONLY THE GENERAL
FACT THAT COMPLAINTS CONCERNING DEPARTURES WERE MADE THROUGH LOCAL
OFFICIALS.  MORE THAN THIS WOULD BE REQUIRED TO DISCLOSE UNEQUIVOCAL
INTENTION TO SURRENDER THE INDIVIDUAL'S RIGHT TO PARTICIPATE IN THE
SETTLEMENT AND TO GIVE THE UNION FINAL VOICE IN MAKING IT TOGETHER WITH
EXCLUSIVE POWER TO REPRESENT HIM BEFORE THE BOARD.  THE MAKING OF
COMPLAINTS IN THIS MANNER WAS ONLY PRELIMINARY TO NEGOTIATION AND
EQUIVOCAL AT THE MOST. 

NOR CAN WE SAY, IN THE PRESENT STATE OF THE RECORD, THAT THE UNION'S
REGULATIONS UNEQUIVOCALLY AUTHORIZED THE GENERAL GRIEVANCE COMMITTEE OR
ITS CHAIRMAN EITHER TO SETTLE THE CLAIMS OR TO ACT AS EXCLUSIVE
REPRESENTATIVE BEFORE THE BOARD.  THE PARTIES RELY UPON APPARENTLY
CONFLICTING PROVISIONS OR, IF THEY ARE NOT ACTUALLY IN CONFLICT, THEN
UPON DIFFERENT ONES, THE APPLICABILITY OF SOME OF WHICH IS IN DISPUTE. 
THUS RESPONDENTS RELY UPON RULE 3, WHICH FORBIDS CHANGE IN EXISTING
AGREEMENTS WITHOUT THE REQUIRED VOTE OF LOCAL LODGES OR SYSTEM
MEMBERSHIP, AND PETITIONER SAYS THE RULE IS NOT APPLICABLE TO THE
DISPUTE IN THIS CASE.  WHETHER OR NOT THE RULE IS APPLICABLE IS A
QUESTION OF FACT TO BE DETERMINED IN THE LIGHT OF WHATEVER EVIDENCE MAY
BE PRESENTED TO SUSTAIN THE ONE VIEW OR THE OTHER.  CONCEIVABLY IT MAY
BE INTENDED TO APPLY ONLY WHERE NO GRIEVANCE IS INVOLVED OR TO THE
SETTLEMENT OF GRIEVANCES AND OTHER DISPUTES AS WELL.  BUT WE CANNOT
SAY, IN THE ABSENCE OF FURTHER LIGHT THAN IS NOW AVAILABLE, THAT ON ITS
FACE THE RULE BEARS ONLY THE ONE CONSTRUCTION OR THE OTHER. 

SIMILAR DIFFICULTIES ARISE IN CONNECTION WITH THE OTHER REGULATIONS. 
ONLY SOME OF THEM ARE SET FORTH IN THE PRINTED RECORD, ALTHOUGH THE
FULL CONSTITUTION AND RULES WERE MADE A PART OF THE RECORD PROPER BY
PETITIONER.  THE RULES AND REGULATIONS DO NOT PURPORT TO REQUIRE
MEMBERS TO NEGOTIATE AND SETTLE THEIR GRIEVANCES ONLY THROUGH THE
UNION.  THE GENERAL COMMITTEE CAN ACT ONLY WHEN A GRIEVANCE IS REFERRED
TO IT BY A LOCAL LODGE.  THE RULES ARE EXTENSIVE, PARTS OF THEM APPEAR
TO INVOLVE POSSIBLE CONFLICT, THE PARTIES DIFFER CONCERNING THEIR
EFFECTS, AND THE MODE OF THEIR OPERATION QUITE OBVIOUSLY MAY BE LARGELY
AFFECTED BY THE MANNER IN WHICH THEY ARE APPLIED IN PRACTICE.  THEIR
CONSTRUCTION AND LEGAL EFFECT ARE MATTERS OF SOME COMPLEXITY AND SHOULD
NOT BE UNDERTAKEN IN A VACUUM APART FROM THE FACTS RELATING TO THEIR
APPLICATION IN PRACTICE.  BECAUSE BOTH FACTUAL AND LEGAL INFERENCES
WOULD BE INVOLVED IN DETERMINING THE EFFECTS OF THE REGULATIONS TO
BRING ABOUT A SURRENDER OF THE INDIVIDUAL RIGHTS TO TAKE PART IN THE
SETTLEMENT AND IN THE BOARD'S PROCEEDINGS, THOSE EFFECTS CANNOT BE
DETERMINED AS A MATTER OF LAW IN THE FIRST INSTANCE HERE. 

NOR CAN WE SAY AS A MATTER OF LAW THAT AUTHORIZING THE SUBMISSION IN
DOCKET NO. 3537, WITHOUT MORE, CONSTITUTED AUTHORIZATION EITHER TO MAKE
THE AGREEMENT OF SETTLEMENT OR TO REPRESENT THE EMPLOYEES IN DOCKET NO.
7324.  THE MATTER REQUIRES SOME EXPLICATION IN THE LIGHT OF THE VIEW WE
HAVE TAKEN CONCERNING THE RIGHTS OF AN AGGRIEVED EMPLOYEE IN THE
SETTLEMENT OF GRIEVANCES.  IN THAT VIEW NO VALID SETTLEMENT CAN BE MADE
UNLESS HE AGREES.  IF SETTLEMENT BY AGREEMENT AFTER NEGOTIATION FAILS,
HE HAS THE RIGHT TO SUBMIT THE DISPUTE TO THE BOARD FOR DECISION.  IF
IT IS SUBMITTED HE HAS RIGHTS OF NOTICE, HEARING AND INDIVIDUAL
REPRESENTATION ACCORDING TO HIS CHOICE. 

ALL THESE RIGHTS ARE SEPARATE AND DISTINCT, THOUGH CLOSELY RELATED. 
A SURRENDER OR DELEGATION OF ONE WOULD NOT RESULT IN SURRENDER OF THE
OTHERS AS A MATTER OF LAW OR NECESSARILY AS A MATTER OF FACT.  WHETHER
IN PARTICULAR CIRCUMSTANCES IT MIGHT DO SO WOULD DEPEND UPON WHETHER
THEY WERE CONSIDERED SUFFICIENT TO DISCLOSE SUCH AN INTENT.  FN43  IT
FOLLOWS THAT AUTHORITY TO CONCUR IN AN AGREEMENT OF SETTLEMENT DOES NOT
IMPLY WITHOUT MORE AUTHORITY TO REPRESENT THE EMPLOYEE IN BOARD
PROCEEDINGS, OR THE LATTER THE FORMER.  THIS IS TRUE WHEN THE AUTHORITY
IS GIVEN TO THE COLLECTIVE AGENT AS IT IS WHEN IT IS GIVEN TO ANOTHER. 
THAT CIRCUMSTANCE IS NOT CONTROLLING.  IT ONLY BEARS AS ONE FACTOR IN
THE TOTAL SITUATION.  ACCORDINGLY IN THIS CASE THE MERE FACT THAT THE
RESPONDENTS AUTHORIZED THE UNION TO MAKE THE SUBMISSION AND TO
REPRESENT THEM IN DOCKET NO. 3537 DID NOT IMPLY AUTHORITY TO MAKE THE
SETTLEMENT AGREEMENT OR TO REPRESENT THEM IN THE QUITE DIFFERENT LATER
PROCEEDINGS IN DOCKET NO. 7324. 

THE RECORD DOES NOT SHOW CONCLUSIVELY THAT PRIOR TO THE SUBMISSION IN
DOCKET NO. 3537 THE EMPLOYEES HAD FINALLY COMMITTED THE WHOLE MATTER OF
THEIR CLAIMS INTO THE UNION'S HANDS IN SUCH A MANNER AS TO CONSTITUTE A
SURRENDER OF THEIR INDIVIDUAL RIGHTS TO CONCUR IN ANY AGREEMENT OF
SETTLEMENT.  THAT CONCLUSION IS NOT JUSTIFIED MERELY FROM THE FACT THAT
THE UNION PARTICIPATED IN NEGOTIATIONS WITH THE CARRIER. 

MOREOVER, THE AUTHORIZATION, TO ACT IN DOCKET NO. 3537, OBVIOUSLY WAS
GIVEN AFTER EFFORTS TO SECURE SETTLEMENT BY NEGOTIATION AND AGREEMENT
WERE CONSIDERED TO HAVE FAILED.  ONLY THEN WAS ANYONE ENTITLED TO MAKE
THE SUBMISSION.  ACCORDINGLY THAT AUTHORIZATION WAS ENTIRELY CONSISTENT
WITH THE IDEA THAT NO FURTHER NEGOTIATIONS WOULD BE HAD, AND THEREFORE,
WITHOUT MORE, ALSO WITH THE IDEA THAT NO AUTHORITY TO NEGOTIATE FURTHER
WAS IMPLIED.  IT MAY BE THAT UPON A FULL HEARING CONCERNING THE COURSE
AND SCOPE OF THE NEGOTIATIONS PRIOR TO THIS SUBMISSION, THE EVIDENCE
WILL JUSTIFY A CONCLUSION THAT THE RESPONDENTS HAD AUTHORIZED THE UNION
TO ACT FINALLY FOR THEM.  BUT THE RECORD IN ITS PRESENT STATE DOES NOT
JUSTIFY THAT CONCLUSION AS A MATTER OF LAW.  FN44 

IT MAY BE TRUE ALSO THAT IF DOCKET NO. 3537 HAD BEEN CARRIED TO
DECISION THE AWARD WOULD HAVE BEEN EFFECTIVE TO DETERMINE THE RIGHTS OF
THE PARTIES.  BUT NO AWARD WAS MADE IN THAT PROCEEDING.  IT WAS
TERMINATED AND THE CLAIM WAS WITHDRAWN.  WHETHER OR NOT THAT ACTION OR
OTHER EVENTS OCCURRING LATER WERE EFFECTIVE TO TERMINATE THE AUTHORITY
GIVEN TO SUBMIT FOR THE BOARD'S DETERMINATION THE ISSUE WHICH WAS THE
FOUNDATION OF RESPONDENTS' MONETARY CLAIMS OR WHETHER THAT AUTHORITY
CONTINUED IN SPITE OF THE CHANGED CONDITIONS ARE QUESTIONS ALSO TO BE
DETERMINED FROM A FACTUAL EVALUATION OF THE ENTIRE SITUATION,
ESSENTIALLY PRELIMINARY TO DETERMINATION OF LEGAL EFFECTS, WHICH WE
CANNOT MAKE. 

SINCE UPON THE TOTAL SITUATION WE CANNOT SAY AS A MATTER OF LAW THAT
RESPONDENTS HAD AUTHORIZED THE BROTHERHOOD TO ACT FOR THEM IN DOCKET
NO. 7324, WHETHER IN SUBMITTING THE CAUSE OR IN REPRESENTING THEM
BEFORE THE BOARD; SINCE IT IS CONCEDED ALSO THAT THEY WERE NOT GIVEN
NOTICE OF THE PROCEEDINGS OTHERWISE THAN AS THE UNION HAD KNOWLEDGE OF
THEM; AND SINCE FURTHER THEY HAVE DENIED THAT THEY HAD KNOWLEDGE OF THE
PROCEEDINGS AND OF THE AWARD UNTIL AFTER IT WAS ENTERED, THE QUESTION
WHETHER THE AWARD WAS EFFECTIVE IN ANY MANNER TO AFFECT THEIR RIGHTS
MUST BE DETERMINED IN THE FURTHER PROCEEDINGS WHICH ARE REQUIRED.  THE
CRUCIAL ISSUE IN THIS RESPECT, OF COURSE, WILL BE INITIALLY WHETHER
RESPONDENTS HAD AUTHORIZED THE BROTHERHOOD IN ANY LEGALLY SUFFICIENT
MANNER TO REPRESENT THEM, INDIVIDUALLY, IN THE BOARD'S PROCEEDINGS IN
DOCKET NO. 7324. 

UNTIL THAT QUESTION IS DETERMINED, IT IS NOT NECESSARY FOR US TO PASS
UPON THE IMPORTANT ISSUE CONCERNING THE FINALITY AND CONCLUSIVE EFFECT
OF THE AWARD, OR TO DETERMINE THE VALIDITY AND LEGAL EFFECT OF THE
COMPROMISE AGREEMENT.  WE ACCORDINGLY EXPRESS NO OPINION CONCERNING
THOSE ISSUES. 

THE JUDGMENT IS AFFIRMED.  THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

FN1 AMENDMENTS WERE ALLOWED TO CURE JURISDICTIONAL DEFECTS FOUND TO
EXIST UPON AN EARLIER APPEAL.  ALDERMAN V. ELGIN, J. & E.R. CO., 125
F.2D 971. 

FN2  THE RECORD SETS FORTH NO PROVISION FOR PENALTY DAMAGES.  BUT THE
COMPLAINT ALLEGES THAT UNDER THE TERMS OF THE AGREEMENT EACH OF THE
PLAINTIFFS IS ENTITLED TO "PAY FOR AN ADDITIONAL DAY, AT TIME AND ONE
HALF, AT THE REGULAR DAILY RATE" FOR EACH DAY HE WAS REQUIRED TO WORK
CONTRARY TO THE AGREEMENT'S TERMS.    FN3  THE COURT SAID:  "I THINK
THAT THE CONTROVERSY WAS SUBMITTED TO THE BOARD, THAT IT HAD
JURISDICTION AND THAT IT WAS DECIDED, AND THAT THE PLAINTIFFS WERE
REPRESENTED THERE AND ARE BOUND THEREBY  ....  I THINK THE RULING OF
THE ADJUSTMENT BOARD WAS BINDING UPON THE PLAINTIFFS AS WELL AS UPON
THE DEFENDANT, AND THAT IT IS BINDING ON THIS COURT IN THIS
PROCEEDING." 

FN4  THE PROCEDURE, THOUGH INFORMAL, CONSISTS PRINCIPALLY IN WRITTEN
STATEMENTS OR "SUBMISSIONS" FILED BY THE PARTIES, WHICH PERFORM AND
FUNCTIONS OF PLEADING AND EVIDENCE COMBINED, AND ORAL ARGUMENT UPON THE
SUBMISSIONS THUS MADE.  SEE GARRISON, THE NATIONAL RAILROAD ADJUSTMENT
BOARD:  A UNIQUE ADMINISTRATIVE AGENCY (1937) 46 YALE L.J. 567, FOR A
DETAILED DESCRIPTION OF THE PROCEDURE.  SEE ALSO FINAL REPORT OF THE
ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE (1941) 185
FF.; ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, SEN. DOC. NO. 10,
PART IV, 77TH CONG., 1ST SESS. 

FN5  THE LETTER WAS ADDRESSED TO WILLIAMS, AS GENERAL CHAIRMAN OF THE
BROTHERHOOD, AND DATED OCTOBER 28, 1938.  IT STATED: 

"SINCE MY LETTER OF AUGUST 18TH IN WHICH I TENTATIVELY PROPOSED
SETTLEMENT OF CERTAIN MATTERS OF GRIEVANCE WE HAVE HAD FURTHER
CORRESPONDENCE AND CONFERENCES WHICH HAVE MODIFIED OUR DECISION IN SOME
CASES.  THEREFORE, IN ORDER THAT THE WHOLE MATTER BE PLACED IN CONCRETE
FORM I AM OUTLINING BELOW OUR PROPOSALS TO SETTLE ALL OF THE CASES
EXCEPT AS OTHERWISE SPECIFIED. 

     .         .         .         .      . 

"CASE NO. 5 - LABOR BOARD DOCKET #3537 - STARTING TIME OF SWITCH
ENGINES IN WHITING S.O. YARD. 

"SETTLED BY AGREEMENT THAT THE STARTING TIMES FOR A NINETY DAY TRIAL
PERIOD COMMENCING NOVEMBER 15TH, 1938, SHALL BE THE TIMES PROVIDED FOR
IN ARTICLE 6 OF THE YARDMEN'S AGREEMENT INSTEAD OF THE STARTING TIMES
HERETOFORE AGREED UPON AND NOW BEING FOLLOWED.  IF AT THE END OF THE
NINETY DAY TRIAL PERIOD THE RAILWAY COMPANY OR ITS EMPLOYEES CLAIM THAT
THE STARTING TIMES AS FIXED IN ARTICLE 6 DO NOT RESULT IN EFFICIENT AND
ECONOMICAL OPERATION AND IN SATISFACTION TO OUR EMPLOYEES AND TO THE
INDUSTRY SERVED, THEN REPRESENTATIVES OF THE RAILWAY COMPANY AND
REPRESENTATIVES OF THE YARDMEN, AND REPRESENTATIVES OF THE ENGINEERS
AND REPRESENTATIVES OF THE FIREMEN WILL SIT DOWN AND WORK OUT A
SCHEDULE OF STARTING TIME BEST SUITED FOR MEETING THE SPECIAL
REQUIREMENTS OF THE INDUSTRY. 

     .         .         .         .         . 

"WE HAVE BY THIS LETTER GIVEN YOU A COMPLETE RESUME OF ALL OF THE
CLAIMS WHICH HAVE NOT HERETOFORE BEEN DISPOSED OF, FILED BY YOU ON
BEHALF OF THE EMPLOYEES WHOM YOU REPRESENT AND HAVE PROPOSED IN THIS
LETTER A VERY LIBERAL DISPOSITION OF ALL THE CASES INVOLVED.  THE
SETTLEMENTS PROPOSED ARE PREDICATED ON A COMPLETE SETTLEMENT AND
WITHDRAWAL OF ALL CASES NOW PENDING EITHER BEFORE THE BOARD, OR UNDER
DISCUSSION WITH THIS OFFICE EXCEPT CASE NO. 4, WHICH IT IS UNDERSTOOD
WILL BE LEFT TO A DECISION BY THE NATIONAL RAILROAD ADJUSTMENT BOARD,
AND IT IS FURTHER UNDERSTOOD THAT IN THE EVENT THESE SETTLEMENTS ARE
ACCEPTED THAT THE CLAIMS LISTED IN THIS LETTER COVER ALL CLAIMS OF A
SIMILAR NATURE, AND THAT NO OTHER CLAIMS COVERING THE SAME OR LIKE
SITUATIONS WILL BE PRESENTED WHEN SUCH CLAIMS ARISE FROM CAUSES
OCCURRING PRIOR TO THE DATE OF THIS SETTLEMENT. 

         "YOURS TRULY,                            "S. M. ROGERS,

           PRESIDENT. 

"ACCEPTED FOR THE YARDMEN:  OCT. 31, 1938. 

"C. H. WILLIAMS, GENERAL CHAIRMAN, B. OF R.T. 

"S. F. JOHNSON, SECRETARY, B. OF R.T." 

FN6  CF. NOTE 5.  THE SUBMISSION STATED:  "THERE WERE NO AGREEMENTS
REACHED WHEREBY PAYMENT FOR VIOLATION OF ARTICLE NO. 6 OF THE YARDMEN'S
AGREEMENT WOULD BE WAIVED AS A RESULT OF WITHDRAWAL OF LABOR BOARD
DOCKET NO. 3537.  IN FACT THAT CASE HELD NO CLAIM FOR PAYMENT FOR
TIME.  IT WAS SIMPLY A CASE TO SETTLE THE DISPUTE AS TO THE CARRIER'S
RIGHT TO FORCE THE YARD CREWS IN THE WHITING YARD TO WORK AT TIMES
OTHER THAN THE FIXED STARTING TIME PROVIDED FOR IN ARTICLE 6  ... 

"AS STATED BEFORE, CASE NO. 5 - LABOR BOARD DOCKET NO. 3537 CONTAINED
NO CLAIM FOR PAY TO WHITING YARDMEN.  CONSEQUENTLY IT WAS NOT A
QUESTION BEFORE THE MANAGEMENT AND THE COMMITTEE IN THE STARTING TIME
NEGOTIATION AND CLAIM CANNOT BE MADE THAT A WAIVER WAS MADE ON A MATTER
WHICH WAS NOT NEGOTIATED." 

THE SUBMISSION ALSO DENIED THAT ORAL AGREEMENTS RELATING TO STARTING
TIME, CLAIMED BY THE CARRIER TO HAVE BEEN MADE AT THE TIME OF THE
TRANSFER IN 1934, COULD BE EFFECTIVE "TO INVALIDATE THE PRESCRIBED
WRITTEN RULE OF ARTICLE 6."  WILLIAMS HOWEVER DID NOT QUESTION THE
VALIDITY OF THE VERBAL AGREEMENT, AS HE MAINTAINED, FOR THE THIRTY-DAY
SUSPENSION. 

FN7  THE SUBMISSIONS IN NO WAY CHALLENGED THE JURISDICTION OF THE
BOARD OR OF THE DIVISION. 

FN8  SEE PART III.  THE PROVISIONS REGULATE THE UNION'S INTERNAL
PROCEDURE IN RELATION TO MAKING CHANGES IN A "GENERAL OR SYSTEM WAGE
SCHEDULE OR AGREEMENT," RULE NO. 3, AND THAT TO BE FOLLOWED WHEN THE
LOCAL CHAIRMAN OR GRIEVANCE COMMITTEE FAILS "SATISFACTORILY TO ADJUST
ANY GRIEVANCE REFERRED TO IT."  RULE NO. 7.  THE LATTER INCLUDES A
PROVISION THAT "A GENERAL GRIEVANCE COMMITTEE MAY AUTHORIZE THEIR
CHAIRMAN TO HANDLE ALL GRIEVANCES RECEIVED FROM LOCAL LODGES."  SEE
ALSO NOTE 40. 

FN9  CF. SEC. 3 FIRST (M), (O), (P), (Q). 

FN10  CF. PART I. 

FN11  IT WAS HELD THAT NOTHING IN THE ACT "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," 312 U.S. AT 634; AND THEREFORE THE EMPLOYEE'S SUIT
COULD BE MAINTAINED AGAINST THE CARRIER WITHOUT PRIOR RESORT TO THE
ADJUSTMENT BOARD.  AMONG THE REASONS ASSIGNED WAS THAT THE MACHINERY
PROVIDED FOR SETTLING DISPUTES WAS NOT "BASED ON A PHILOSOPHY OF LEGAL
COMPULSION" BUT CREATED "A SYSTEM FOR PEACEFUL ADJUSTMENT AND MEDIATION
VOLUNTARY IN ITS NATURE." 

THE PROBLEM PRESENTED WAS WHETHER THE ADJUSTMENT BOARD PROCEDURE
EITHER WAS EXCLUSIVE OR WAS AN ESSENTIAL PRELIMINARY TO JUDICIAL
PROCEEDINGS WITHIN THE DOCTRINE OF PRIMARY JURISDICTION.  THESE WERE
QUESTIONS NOT ENTIRELY DETERMINABLE BY THE CRITERION OF WHETHER THE
PROCEDURE IS WHOLLY ADVISORY OR CONCILIATORY IN CHARACTER.  FOR,
CONCEIVABLY, CONGRESS MIGHT HAVE MADE THE TAKING OF THE BOARD'S MERELY
ADVISORY OPINION A CONDITION PRECEDENT TO ASKING FOR JUDICIAL RELIEF;
AND, CONVERSELY, ALLOWING THAT RELIEF WITHOUT PRIOR RESORT TO THE BOARD
DOES NOT NECESSARILY MAKE THE BOARD'S ACTION, WHEN TAKEN, MERELY
ADVISORY. 

FN12  THUS, ONE OF THE STATUTE'S PRIMARY COMMANDS, JUDICIALLY
ENFORCEABLE, IS FOUND IN THE REPEATED DECLARATION OF A DUTY UPON ALL
PARTIES TO A DISPUTE TO NEGOTIATE FOR ITS SETTLEMENT.  SEE NOTE 26;
VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515; CF. SWITCHMEN'S
UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297, 300, 320; GENERAL
COMMITTEE V. M.-K.-T.R. CO., 320 U.S. 323, 331, 334.  THIS DUTY IS NOT
MERELY PERFUNCTORY.  GOOD FAITH EXHAUSTION OF THE POSSIBILITY OF
AGREEMENT IS REQUIRED TO FULFILL IT.  CF. VIRGINIAN R. CO. V. SYSTEM
FEDERATION, SUPRA, AT 548, 550; TRAINMEN V. TOLEDO, P. & W.R. CO., 321
U.S. 50, 56 FF.  AT SUCCESSIVE STAGES OF THE STATUTORY PROCEDURE OTHER
DUTIES ARE IMPOSED.  CF. SECS. 5 FIRST (B), 6, 10. 

FN13  CF. THE REFERENCES CITED IN NOTES 4 AND 15. 

FN14  CF. TEXT PART II AT NOTE 38; ALSO HUGHES TOOL CO. V. LABOR
BOARD, 147 F.2D 69, 72, 73. 

FN15  SEE THE REFERENCES CITED IN NOTE 4; HEARINGS BEFORE COMMITTEE
ON INTERSTATE COMMERCE ON H.R. 7650, 73D CONG., 2D SESS.; HEARINGS
BEFORE COMMITTEE ON INTERSTATE COMMERCE ON S. 3266, 73D CONG., 2D
SESS.; PENNSYLVANIA R. CO. V. RAILROAD LABOR BOARD, 261 U.S. 72;
PENNSYLVANIA SYSTEM FEDERATION V. PENNSYLVANIA R. CO., 267 U.S. 203;
TEXAS & N.O.R. CO. V. BROTHERHOOD, 281 U.S. 548; VIRGINIAN R. CO. V.
SYSTEM FEDERATION, 300 U.S. 515. 

FN16  CF. THE REFERENCES CITED IN NOTE 4.  COMMISSIONER (ALSO
COORDINATOR) EASTMAN, WHO VERY LARGELY DRAFTED THE 1934 AMENDMENTS,
SAID IN TESTIFYING AT THE HOUSE COMMITTEE HEARINGS CONCERNING THEM: 

"PLEASE NOTE THAT DISPUTES CONCERNING CHANGES IN RATES OF PAY, RULES,
OR WORKING CONDITIONS MAY NOT BE SO REFERRED (TO THE NATIONAL
ADJUSTMENT BOARD), BUT ARE TO BE HANDLED, WHEN UNADJUSTED, THROUGH THE
PROCESS OF MEDIATION.  THE NATIONAL ADJUSTMENT BOARD IS TO HANDLE ONLY
THE MINOR CASES GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION
OR APPLICATION OF AGREEMENTS."  HEARINGS BEFORE COMMITTEE ON INTERSTATE
COMMERCE ON H.R. 7650, 73D CONG., 2D SESS., 47; CF. ALSO PP. 49, 51,
59, 62.  AND SEE THE TESTIMONY OF HARRISON, A PRINCIPAL UNION
PROPONENT, BEFORE THE HOUSE COMMITTEE, ID., AT 80-83; AND BEFORE THE
SENATE COMMITTEE, HEARINGS BEFORE COMMITTEE ON INTERSTATE COMMERCE ON
S. 3266, 73D CONG., 2D SESS., 33, 35. 

FN17  CF. THE TESTIMONY OF EASTMAN AND HARRISON, CITED IN NOTE 16. 

FN18  CF. NOTE 12; ALSO NOTES 26, 27, AND TEXT INFRA.  THE OBLIGATION
IS NOT PARTIAL.  IN PLAIN TERMS THE DUTY IS LAID ON CARRIER AND
EMPLOYEES ALIKE, TOGETHER WITH THEIR REPRESENTATIVES; AND IN EQUALLY
PLAIN TERMS IT APPLIES TO ALL DISPUTES COVERED BY THE ACT, WHETHER
MAJOR OR MINOR. 

FN19  H. REP. NO. 1944 ON H.R. 9861, 73D CONG., 2D SESS., 3; S. REP.
NO. 1065 ON S. 3266, 73D CONG., 2D SESS., 1, 2. 

FN20  CF. 78 CONG. REC. 12553.  COORDINATOR EASTMAN REFERRED, IN HIS
TESTIMONY, TO FOUR RECENT STRIKE VOTES OCCASIONED BY DEADLOCK. 
HEARINGS BEFORE COMMITTEE ON INTERSTATE COMMERCE ON S. 3266, 73D CONG.,
2D SESS., 17. 

FN21  THE CHAIRMAN TOLD THE SENATE COMMITTEE:  "THE PROVISION IN THE
PRESENT ACT (1926) FOR ADJUSTMENT BOARDS IS IN PRACTICE ABOUT AS NEAR A
FOOL PROVISION AS ANYTHING COULD POSSIBLY BE.  I MEAN THIS - THAT ON
THE FACE OF IT THEY SHALL, BY AGREEMENT, DO SO AND SO.  WELL, YOU CAN
DO PRETTY NEARLY ANYTHING BY AGREEMENT, BUT HOW CAN YOU GET THEM TO
AGREE?"  HEARINGS BEFORE COMMITTEE ON INTERSTATE COMMERCE ON S. 3266,
73D CONG., 2D SESS., 137. 

FN22  SEE, FOR A GENERAL VIEW OF THE CIRCUMSTANCES INDUCING ENACTMENT
OF THE 1934 AMENDMENTS, THE REFERENCES CITED ABOVE IN NOTES 4, 15, 16,
19.  THE REPORT OF THE HOUSE COMMITTEE IN CHARGE OF THE BILL STATED: 

"MANY THOUSANDS OF THESE DISPUTES HAVE BEEN CONSIDERED BY BOARDS
ESTABLISHED UNDER THE RAILWAY LABOR ACT; BUT THE BOARDS HAVE BEEN
UNABLE TO REACH A MAJORITY DECISION, AND SO THE PROCEEDINGS HAVE BEEN
DEADLOCKED.  THESE UNADJUSTED DISPUTES HAVE BECOME SO NUMEROUS THAT ON
SEVERAL OCCASIONS THE EMPLOYEES HAVE RESORTED TO THE ISSUANCE OF STRIKE
BALLOTS AND THREATENED TO INTERRUPT INTERSTATE COMMERCE IN ORDER TO
SECURE AN ADJUSTMENT.  THIS HAS MADE IT NECESSARY FOR THE PRESIDENT OF
THE UNITED STATES TO INTERVENE AND ESTABLISH AN EMERGENCY BOARD TO
INVESTIGATE THE CONTROVERSIES.  THIS CONDITION SHOULD BE CORRECTED IN
THE INTEREST OF INDUSTRIAL PEACE AND OF UNINTERRUPTED TRANSPORTATION
SERVICE.  THIS BILL, THEREFORE, PROVIDES FOR THE ESTABLISHMENT OF A
NATIONAL BOARD OF ADJUSTMENT TO WHICH THESE DISPUTES MAY BE SUBMITTED
IF THEY SHALL NOT HAVE BEEN ADJUSTED IN CONFERENCE BETWEEN THE
PARTIES."  H. REP. NO. 1944, 73D CONG., 2D SESS., 3.  CF. ALSO THE
TESTIMONY OF COORDINATOR EASTMAN, HEARINGS BEFORE COMMITTEE ON
INTERSTATE COMMERCE ON H.R. 7650, 73D CONG., 2D SESS., 49. 

FN23  SECTION 3 FIRST (I) EXPRESSLY CONDITIONS THE RIGHT TO MOVE FROM
NEGOTIATION INTO PROCEEDINGS BEFORE THE ADJUSTMENT BOARD UPON "FAILING
TO REACH AN ADJUSTMENT IN THIS MANNER," I.E., BY NEGOTIATION. 

FN24  SEE THE TESTIMONY OF COORDINATOR EASTMAN AND MR. HARRISON,
CITED IN NOTE 16.  THE LATTER STATED, AT THE SENATE COMMITTEE HEARINGS,
PP. 33, 35: 

"...  THIS HAS BEEN A QUESTION FOR THE LAST 14 YEARS AS TO WHAT KIND
OF BOARDS WE ARE GOING TO HAVE TO SETTLE OUR GRIEVANCES  ...  WE HAVE
ALWAYS SOUGHT NATIONAL BOARDS; THE RAILROADS  ... HAVE SOUGHT THE
SYSTEM BOARDS, REGIONAL BOARDS  ...  MOST OF THE BOARDS  ...  UNDER THE
PRESENT LAW  ...  HAVE DEADLOCKED ON ANY NUMBER OF CASES.  AS A RESULT
OF THAT THERE WAS FAST GROWING UP IN OUR INDUSTRY A SERIOUS CONDITION
THAT MIGHT VERY WELL DEVELOP INTO SUBSTANTIAL INTERRUPTION OF
INTERSTATE COMMERCE  ...  THESE RAILWAY LABOR ORGANIZATIONS HAVE ALWAYS
OPPOSED COMPULSORY DETERMINATION OF THEIR CONTROVERSIES.  WE HAVE LIVED
A LONG TIME AND GOT A LOT OF EXPERIENCE, AND WE KNOW THAT THESE MINOR
CASES THAT DEVELOP OUT OF CONTRACTS THAT WE MAKE FREELY, AND  ...  WE
ARE NOW READY TO CONCEDE THAT WE CAN RISK HAVING OUR GRIEVANCES GO TO A
BOARD AND GET THEM DETERMINED, AND THAT IS A CONTRIBUTION THAT THESE
ORGANIZATIONS ARE WILLING TO MAKE  ....  IF WE ARE GOING TO GET A
HODGEPODGE ARRANGEMENT BY LAW  ...  THEN WE DON'T WANT TO GIVE UP THAT
RIGHT, BECAUSE WE ONLY GIVE UP THE RIGHT BECAUSE WE FEEL THAT WE WILL
GET A MEASURE OF JUSTICE BY THIS MACHINERY THAT WE SUGGEST HERE." 

FN25  CF. ALSO MEDO PHOTO SUPPLY CORP. V. LABOR BOARD, 321 U.S. 678;
J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332. 

FN26  BY SEC. 2 FIRST, "IT SHALL BE THE DUTY OF ALL CARRIERS, THEIR
OFFICERS, AGENTS, AND EMPLOYEES TO EXERT EVERY REASONABLE EFFORT TO
MAKE AND MAINTAIN AGREEMENTS CONCERNING RATES OF PAY, RULES, AND
WORKING CONDITIONS, AND TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF
THE APPLICATION OF SUCH AGREEMENTS OR OTHERWISE, IN ORDER TO AVOID ANY
INTERRUPTION TO COMMERCE  ..."  BY SEC. 2 SECOND, "ALL DISPUTES BETWEEN
A CARRIER OR CARRIERS AND ITS OR THEIR EMPLOYEES SHALL BE CONSIDERED,
AND, IF POSSIBLE, DECIDED, WITH ALL EXPEDITION, IN CONFERENCE BETWEEN
REPRESENTATIVES DESIGNATED AND AUTHORIZED SO TO CONFER, RESPECTIVELY,
BY THE CARRIER OR CARRIERS AND BY THE EMPLOYEES THEREOF INTERESTED IN
THE DISPUTE."  THESE ARE THE BASIC SECTIONS CREATING THE DUTY,
APPLICABLE TO ALL DISPUTES, MAJOR OR MINOR, AND TO CARRIERS AND
EMPLOYEES ALIKE. 

OTHER PROVISIONS AFFECTING THE GENERAL DUTY TO TREAT ARE THOSE OF
SEC. 2 THIRD, THAT "REPRESENTATIVES, FOR THE PURPOSES OF THIS ACT,
SHALL BE DESIGNATED BY THE RESPECTIVE PARTIES WITHOUT INTERFERENCE" BY
THE OTHER AND "NEED NOT BE PERSONS IN THE EMPLOY OF THE CARRIER"; OF
SEC. 2 FOURTH, THAT "THE MAJORITY OF ANY CRAFT OR CLASS OF EMPLOYEES
SHALL HAVE THE RIGHT TO DETERMINE WHO SHALL BE THE REPRESENTATIVE OF
THE CRAFT OR CLASS FOR THE PURPOSES OF THIS ACT"; AND OF SEC 2 EIGHTH
THAT "EVERY CARRIER SHALL NOTIFY ITS EMPLOYEES BY PRINTED NOTICES  ...
THAT ALL DISPUTES BETWEEN THE CARRIER AND ITS EMPLOYEES WILL BE HANDLED
IN ACCORDANCE WITH THE REQUIREMENTS OF THIS ACT." 

(I).  THE FORMER PROVIDES: "IN CASE OF A DISPUTE BETWEEN A CARRIER OR
CARRIERS AND ITS OR THEIR EMPLOYEES, ARISING OUT OF GRIEVANCES OR OUT
OF THE INTERPRETATION OR APPLICATION OF AGREEMENTS CONCERNING RATES OF
PAY, RULES, OR WORKING CONDITIONS, IT SHALL BE THE DUTY OF THE
DESIGNATED REPRESENTATIVE OR REPRESENTATIVES OF SUCH CARRIER OR
CARRIERS AND OF SUCH EMPLOYEES, WITHIN TEN DAYS AFTER THE RECEIPT OF
NOTICE OF A DESIRE ON THE PART OF EITHER PARTY TO CONFER IN RESPECT TO
SUCH DISPUTE, TO SPECIFY A TIME AND PLACE  ..."  SECTION 3 FIRST (I) IS
AS FOLLOWS:  "THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES
AND A CARRIER OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY,
RULES, OR WORKING CONDITIONS, INCLUDING CASES PENDING AND UNADJUSTED ON
THE DATE OF APPROVAL OF THIS ACT, SHALL BE HANDLED IN THE USUAL MANNER
UP TO AND INCLUDING THE CHIEF OPERATING OFFICER OF THE CARRIER
DESIGNATED TO HANDLE SUCH DISPUTES; BUT, FAILING TO REACH AN ADJUSTMENT
IN THIS MANNER, THE DISPUTES MAY BE REFERRED BY PETITION OF THE PARTIES
OR BY EITHER PARTY TO THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD
WITH A FULL STATEMENT OF THE FACTS AND ALL SUPPORTING DATA BEARING UPON
THE DISPUTES." 

FN27  SECTION 2 EIGHTH MAKES THIS PROVISO PART OF THE CONTRACT OF
EMPLOYMENT BETWEEN THE CARRIER AND EACH EMPLOYEE, AND SEC. 2 TENTH
MAKES IT A MISDEMEANOR FOR THE CARRIER TO REFUSE TO OBSERVE IT.
AND FIFTH IN EACH EMPLOYEE'S CONTRACT OF EMPLOYMENT.  SECTION 2 TENTH
MAKES IT A MISDEMEANOR FOR THE CARRIER TO FAIL OR REFUSE TO COMPLY WITH
THE TERMS OF SECS. 2 THIRD, FOURTH, FIFTH, SEVENTH AND EIGHTH. 

FN28  SEE NOTE 27. 

FN29  CF. ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, SEN. DOC.
10, PART IV, 77TH CONG., 1ST SESS., 7.    FN30  CF. STEELE V.
LOUISVILLE & N.R. CO., 323 U.S. 192; TUNSTALL V. BROTHERHOOD OF
LOCOMOTIVE FIREMEN, 323 U.S. 210; WALLACE CORP. V. LABOR BOARD, 323
U.S. 248. 

FN31  IN THIS CONNECTION IT IS IMPORTANT TO RECALL THAT THE ACT DOES
NOT CONTEMPLATE THE EXISTENCE OF CLOSED SHOPS, TO THE EXTENT AT ANY
RATE THAT THE CARRIER IS FORBIDDEN TO MAKE SUCH AGREEMENTS.  CF. SEC. 2
FOURTH; 78 CONG. REC. 12,402; 40 OP. ATTY. GEN., NO. 59(DEC.  29,
1942).  ACCORDINGLY THE INTERESTS OF UNORGANIZED WORKERS AND MEMBERS OF
MINORITY UNIONS ARE CONCERNED IN THE SOLUTION.  THESE ARE NOT ALWAYS
ADVERSE TO THE INTERESTS OF THE MAJORITY OR OF THE DESIGNATED UNION. 
BUT THEY MAY BE SO OR EVEN HOSTILE.  CF. THE AUTHORITIES CITED IN NOTE
30.  TO REGARD THE STATUTE AS SO COMPLETELY DEPRIVING PERSONS THUS
SITUATED OF VOICE IN AFFAIRS AFFECTING THEIR VERY MEANS OF LIVELIHOOD
WOULD RAISE VERY SERIOUS QUESTIONS. 

FN32  THIS UNDOUBTEDLY WAS THE PRIMARY OBJECT.  THE LANGUAGE IN THE
CONCLUDING CLAUSE, "WHILE ENGAGED IN THE BUSINESS OF A LABOR
ORGANIZATION," APPLIES LITERALLY ONLY TO EMPLOYEES TRAVELLING UPON
UNION BUSINESS, AND HAS NO APPARENT APPLICATION TO THE PRECEDING
PROVISION RELATING TO THE INDIVIDUAL EMPLOYEE'S RIGHT TO CONFER WITH
MANAGEMENT. 

FN33  HEARINGS BEFORE COMMITTEE ON INTERSTATE COMMERCE ON H.R. 7650,
73D CONG., 2D SESS., 36, 44, 89. 

FN34  CF. NOTE 37 AND TEXT.  IT IS TO BE DOUBTED THAT CONGRESS BY THE
GENERALLY INCLUSIVE LANGUAGE USED CONCERNING GRIEVANCES INTENDED, FOR
INSTANCE, TO GIVE THE COLLECTIVE AGENT EXCLUSIVE POWER TO SETTLE A
GRIEVANCE ARISING INDEPENDENTLY OF THE COLLECTIVE AGREEMENT, AFFECTING
ONLY NONUNION MEN TO WHOSE CLAIM THE UNION AND THE MAJORITY WERE
HOSTILE. 

FN35  BUT WHETHER OR NOT THE CARRIER'S VIOLATION AFFECTS ALL THE
MEMBERS OF THE GROUP IMMEDIATELY AND ALIKE, SO AS TO CREATE A PRESENT
BASIS FOR CLAIMS BY EACH, THE VIOLATION, THOUGH RESULTING FROM
MISINTERPRETATION, WOULD CONSTITUTE A PRESENT THREAT TO THE SIMILAR
RIGHTS OF ALL COVERED BY THE CONTRACT.  CF. HUGHES TOOL CO. V. LABOR
BOARD, SUPRA, 72, 74; 40 OP. ATTY. GEN., NO. 59, PP. 4, 5(DEC.  29,
1942). 

TO LEAVE SETTLEMENTS IN SUCH CASES ULTIMATELY TO THE SEVERAL CHOICES
OF THE MEMBERS, EACH ACCORDING TO HIS OWN DESIRE WITHOUT REGARD TO THE
EFFECT UPON THE COLLECTIVE INTEREST, WOULD MEAN THAT EACH AFFECTED
WORKER WOULD HAVE THE RIGHT TO CHOOSE HIS OWN TERMS AND TO DETERMINE
THE MEANING AND EFFECT OF THE COLLECTIVE AGREEMENT FOR HIMSELF. 
NECESSARILY, THE CARRIER WOULD BE FREE TO JOIN WITH HIM IN DOING SO AND
THUS TO BARGAIN WITH EACH EMPLOYEE FOR WHATEVER TERMS ITS ECONOMIC
POWER, PITTED AGAINST HIS OWN, MIGHT INDUCE HIM TO ACCEPT.  THE RESULT
NECESSARILY WOULD BE TO MAKE THE AGREEMENT EFFECTIVE, NOT TO ALL ALIKE,
BUT ACCORDING TO WHATEVER VARIED INTERPRETATIONS INDIVIDUAL WORKERS,
FROM EQUALLY VARIED MOTIVATIONS, MIGHT BE WILLING TO ACCEPT.  TO GIVE
THE COLLECTIVE AGENT POWER TO MAKE THE AGREEMENT, BUT EXCLUDE IT FROM
ANY VOICE WHATEVER IN ITS INTERPRETATION WOULD GO FAR TOWARD DESTROYING
ITS UNIFORM APPLICATION. 

FN36  DEPENDING UPON THE SUBSTANTIVE CHARACTER OF THE CLAIM, ITS
FOUNDATION IN A COLLECTIVE AGREEMENT OR OTHERWISE, ITS INTRINSICALLY
SUBSTANTIAL OR INSUBSTANTIAL NATURE, THE NUMBER OF EMPLOYEES AFFECTED,
THE LENGTH OF TIME IT REMAINS UNSETTLED, THE NUMBER OF CLAIMS ALLOWED
SO TO RUN, OR PERHAPS OTHER FACTORS, THE GRIEVANCE MAY BE A MATTER OF
LARGE MOMENT TO THE GROUP AS A WHOLE OR OF LITTLE OR NO CONCERN TO IT
AND, IT MAY BE, OF EITHER IDENTICAL OR CONVERSE IMPORTANCE TO THE
INDIVIDUAL OR INDIVIDUALS DIRECTLY AFFECTED. 

FN37  CONGRESS WAS CONCERNED PRIMARILY WITH DIFFERENCES BETWEEN THE
CARRIER AND THE EMPLOYEES, NOT WITH DIFFERENCES AMONG THE LATTER OR
BETWEEN THEM, OR SOME OF THEM, AND THE COLLECTIVE AGENT.  THE STATUTE
THEREFORE WAS NOT DRAWN WITH AN EYE LEVELLED TO THESE PROBLEMS, EXCEPT
AS TO CHOICE OF REPRESENTATIVES, CF. SEC. 2 FOURTH; SEC. 2 NINTH; AND
NOTE 34. 

FN38  AUTHORITY MIGHT BE CONFERRED IN WHATEVER WAYS WOULD BE
SUFFICIENT ACCORDING TH GENERALLY ACCEPTED OR "COMMON LAW" RULES FOR
THE CREATION OF AN AGENCY, AS CONCEIVABLY BY SPECIFIC AUTHORIZATION
GIVEN ORALLY OR IN WRITING TO SETTLE EACH GRIEVANCE, BY GENERAL
AUTHORITY GIVEN TO SETTLE SUCH GRIEVANCES AS MIGHT ARISE, OR BY
ASSENTING TO SUCH AUTHORITY BY BECOMING A MEMBER OF A UNION AND THEREBY
ACCEPTING A PROVISION IN ITS CONSTITUTION OR RULES AUTHORIZING IT TO
MAKE SUCH SETTLEMENTS. 

FN39  THE DISTINCTION HOLDS TRUE ALTHOUGH "INTERPRETATION OR
APPLICATION" MAY LOOK TO THE FUTURE AS WELL AS THE PAST, AS IT OFTEN
DOES.  IT GOES TO THE SOURCE OF THE RIGHT ASSERTED, WHETHER IN AN
ANTECEDENT AGREEMENT OR ONLY TO ONE PRESENTLY SOUGHT.  THE DIFFERENCE
IS IMPORTANT FOR OTHER ISSUES AS WELL AS THOSE PRESENTLY INVOLVED,
E.G., APPLICATION OF STATUTES OF LIMITATIONS. 

THE DISTINCTION IS NOT TO BE IGNORED OR WIPED OUT MERELY BECAUSE A
PARTICULAR DISPUTE OR AGREEMENT MAY LOOK BOTH TO THE PAST AND TO THE
FUTURE.  THE SPECIAL PROCEDURE FOR SETTLING GRIEVANCES WAS CREATED
BECAUSE IT WAS INTENDED THEY SHOULD BE DISPOSED OF DIFFERENTLY FROM
DISPUTES OVER "RATES OF PAY, RULES, OR WORKING CONDITIONS," WHICH WERE
COMMITTED EXCLUSIVELY TO THE COLLECTIVE AGENT'S AUTHORITY.  ONE
IMPORTANT DIFFERENCE PRESERVED THE AGGRIEVED EMPLOYEE'S RIGHTS TO
PARTICIPATE IN ALL STAGES OF THE SETTLEMENT.  CONGRESS THEREFORE, WHEN
IT PRESERVED THOSE RIGHTS, CONTEMPLATED SOMETHING MORE THAN COLLECTIVE
REPRESENTATION AND ACTION TO MAKE THE SETTLEMENT EFFECTIVE FOR THE
PAST.  IT FOLLOWS THAT THE INDIVIDUAL EMPLOYEE'S RIGHTS CANNOT BE
NULLIFIED MERELY BY AGREEMENT BETWEEN THE CARRIER AND THE UNION.  THEY
ARE STATUTORY RIGHTS, WHICH HE MAY EXERCISE INDEPENDENTLY OR AUTHORIZE
THE UNION TO EXERCISE IN HIS BEHALF. 

FN40  THE COLLECTIVE AGREEMENT, OF WHICH ARTICLE 6 IS A PART,
PROVIDES:  "ANY CONTROVERSY ARISING AS TO THE APPLICATION OF THE RULES
HEREIN AGREED UPON  ...  SHALL BE TAKEN UP  ..."  BY THE GENERAL
GRIEVANCE COMMITTEE WITH THE GENERAL SUPERINTENDENT OF THE CARRIER,
"AND IN THE EVENT OF THEIR FAILURE TO AGREE UPON A SATISFACTORY
SETTLEMENT, THE COMMITTEE ANY APPEAL TO THE VICE PRESIDENT." 
PETITIONER SAYS THIS PROVISION BOUND IT TO DEAL ONLY WITH THE GENERAL
COMMITTEE. 

PETITIONER ALSO RELIES UPON RULE 10 OF THE BROTHERHOOD'S CONSTITUTION
AND GENERAL RULES AS IMPOSING THE SAME DUTY: 

"WHATEVER ACTION MAY BE TAKEN BY THE GENERAL GRIEVANCE COMMITTEE OR
BOARD OF ADJUSTMENT OF ANY SYSTEM WITHIN THE MEANING OF THE ABOVE
GENERAL RULES SHALL BE LAW TO THE LODGES ON THAT ROAD UNTIL AND UNLESS
REVERSED BY THE BOARD OF APPEALS, AND IF ANY MEMBER REFUSES TO VOTE OR
ABIDE BY THE ACTION OF SUCH GENERAL GRIEVANCE COMMITTEE OR BOARD OF
ADJUSTMENT, HE SHALL BE EXPELLED FROM THE BROTHERHOOD FOR VIOLATION OF
OBLIGATION." 

SEE ALSO NOTE 8. 

FN41  THIS, THEY SAY, WAS BECAUSE WILLIAMS DID NOT REGARD THE
AGREEMENT AS WAIVING THE MONEY CLAIMS, SINCE HE DID NOT GIVE THEM THE
REQUIRED NOTICE AND SHORTLY AFTER THE SETTLEMENT FILED THE MONEY CLAIMS
WITH THE BOARD.  CF. NOTE 6. 

FN42  RESPONDENTS ALSO ATTACK THE SETTLEMENT BECAUSE IT WAS NOT
SIGNED BY THE THIRD MEMBER OF THE GRIEVANCE COMMITTEE, THE LOCAL
GRIEVANCE CHAIRMAN.  THIS OBJECTION BORDERS ON THE FRIVOLOUS. 

FN43  IN OTHER WORDS, THE AGGRIEVED EMPLOYEE HAS THE RIGHT TO
DELEGATE HIS POWER TO CONCUR IN AN AGREEMENT OF SETTLEMENT, BUT AT THE
SAME TIME TO RESERVE HIS RIGHTS TO MAKE SUBMISSION TO THE BOARD AND OF
APPEARANCE AND REPRESENTATION BEFORE IT, OR CONVERSELY TO RESERVE HIS
RIGHT TO CONCUR AND DELEGATE THE RIGHTS OF SUBMISSION AND
REPRESENTATION.  TO WHAT EXTENT HE MAY DELEGATE ONE OR ALL DEPENDS
THEREFORE UPON THE INTENT WITH WHICH HE MAKES THE PARTICULAR DELEGATION
AS DISCLOSED BY THE CIRCUMSTANCES IN WHICH IT IS MADE, OR GIVES
EVIDENCE OF SUCH INTENT BY HIS CONDUCT, AND THIS WILL BE A QUESTION OF
FACT UNLESS THE CIRCUMSTANCES SO CLEARLY SHOW HE INTENDED TO MAKE THE
DELEGATION CLAIMED THAT NO OTHER CONCLUSION IS POSSIBLE. 

FN44  IT IS TRUE THAT RESPONDENTS' POSITION CONCERNING THE
CONSEQUENCES OF THEIR AUTHORIZATION TO MAKE THE SUBMISSION IN DOCKET
NO. 3537 IS NOT ALTOGETHER CONSISTENT.  FOR IN CLAIMING THAT THEY
AUTHORIZED SUBMISSION ONLY TO DETERMINE THE APPLICABILITY OF ARTICLE 6
FOR THE FUTURE, AND NOT TO DETERMINE THE QUESTION OF RETROACTIVITY SO
AS TO ESTABLISH OR CONCLUDE ADVERSELY THE BASIS FOR THEIR INDIVIDUAL
MONETARY CLAIMS, THEY APPEAR TO IGNORE, AS DOES PETITIONER IN SOME OF
ITS CONTENTIONS, THE DISTINCTION BETWEEN COLLECTIVE BARGAINING AND THE
SETTLEMENT OF GRIEVANCES AS THE ACT DEFINES THEM.  CF. NOTE 39 AND
TEXT.  IF THEIR PURPOSE WAS MERELY TO AUTHORIZE SETTLEMENT FOR THE
FUTURE, WITHOUT RETROACTIVE EFFECTS, THE SUBMISSION TO THE ADJUSTMENT
BOARD WAS MISCONCEIVED, SINCE IT HAS NO POWER TO RENDER A DECISION
REQUIRING THE CARRIER OR THE UNION TO MAKE A NEW AGREEMENT.  ITS ONLY
AUTHORITY, UNDER THE ACT, IS TO DETERMINE WHAT THEY HAVE AGREED UPON
PREVIOUSLY OR, OUTSIDE THE SCOPE OF A COLLECTIVE AGREEMENT, WHAT RIGHTS
THE CARRIER AND ITS EMPLOYEES MAY HAVE ACQUIRED BY VIRTUE OF OTHER
INCIDENTS OF THE EMPLOYMENT RELATION.  SUCH AN ISSUE BY ITS VERY NATURE
LOOKS TO THE PAST, THOUGH IT MAY ALSO SEEK COMPLIANCE FOR THE FUTURE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

ON JULY 27, 1934, THE BROTHERHOOD OF RAILROAD TRAINMEN MADE AN
AGREEMENT WITH PETITIONER, ELGIN, JOLIET AND EASTERN RAILWAY COMPANY,
AFFECTING ITS YARDMEN WHEREBY THE STARTING TIME FOR SWITCHING CREWS WAS
FIXED.  THE RESPONDENTS ARE EMPLOYED AS SWITCHING CREWS IN THE WHITING,
INDIANA YARD OF PETITIONER.  THEY ARE ALL MEMBERS OF THE BROTHERHOOD. 
OBSERVANCE BY PETITIONER OF THIS YARD AGREEMENT WAS CALLED INTO
QUESTION.  AFTER ABORTIVE CONFERENCES FOR THE ADJUSTMENT OF THESE
CLAIMS BETWEEN OFFICIALS OF PETITIONER AND OF THE BROTHERHOOD, C.H.
WILLIAMS, GENERAL CHAIRMAN OF THE BROTHERHOOD GENERAL GRIEVANCE
COMMITTEE, FILED A COMPLAINT COVERING SEVERAL GRIEVANCES WITH THE
NATIONAL RAILROAD ADJUSTMENT BOARD, CREATED BY THE RAILWAY LABOR ACT OF
1934, 48 STAT. 1185, 45 U.S.C. SEC. 151 ET SEQ., TO COMPEL PETITIONER'S
COMPLIANCE WITH THE AGREED TIME.  IN NOVEMBER, 1936, THE CASES WERE
DULY DOCKETED.  BEFORE THEY CAME TO BE HEARD, PETITIONER, ON OCTOBER
28, 1938, PROPOSED SETTLEMENT OF NUMEROUS CLAIMS AGAINST IT BY THE
BROTHERHOOD THEN PENDING BEFORE THE ADJUSTMENT BOARD.  AMONG THESE
CLAIMS WAS THE DISPUTE AS TO STARTING TIME.  PETITIONER AGREED FOR A
NINETY-DAY TRIAL PERIOD, BEGINNING NOVEMBER 15, 1938, TO ABIDE BY THE
TIME FIXED IN THE 1934 AGREEMENT.  BUT ITS OFFER WAS CONDITIONED "ON A
COMPLETE SETTLEMENT AND WITHDRAWAL OF ALL CASES NOW PENDING EITHER
BEFORE THE BOARD, OR UNDER DISCUSSION WITH THIS OFFICE  ...  AND IT IS
FURTHER UNDERSTOOD THAT IN THE EVENT THESE SETTLEMENTS ARE ACCEPTED
THAT THE CLAIMS LISTED IN THIS LETTER COVER ALL CLAIMS OF A SIMILAR
NATURE, AND THAT NO OTHER CLAIMS COVERING THE SAME OR LIKE SITUATIONS
WILL BE PRESENTED WHEN SUCH CLAIMS ARISE FROM CAUSES OCCURRING PRIOR TO
THE DATE OF THIS SETTLEMENT."  ON OCTOBER 31, 1938, SETTLEMENT ON THESE
TERMS WAS ACCEPTED FOR THE YARDMEN BY WILLIAMS, GENERAL CHAIRMAN, AND
S. F. JOHNSON, THE SECRETARY OF THE BROTHERHOOD'S GENERAL GRIEVANCE
COMMITTEE.  ON THE SAME DAY AND UPON REQUEST OF THE BROTHERHOOD AND
RAILWAY, THE CASES WERE REMOVED FROM ITS DOCKET BY THE ADJUSTMENT
BOARD. 

LATER THE BROTHERHOOD FILED WITH THE ADJUSTMENT BOARD A SECOND
COMPLAINT CLAIMING MONEY DAMAGES ON BEHALF OF ITS MEMBERS FOR VIOLATION
OF THE 1934 AGREEMENT.  THE BOARD, BY FORMAL AWARD, DENIED THE CLAIM ON
THE GROUND THAT THE "EVIDENCE SHOWS THAT THE PARTIES TO THE AGREEMENT
DISPOSED OF THE CLAIM HERE MADE BY THE LETTER OF CARRIER DATED OCTOBER
28TH, 1938, ACCEPTED BY EMPLOYES OCTOBER 31, 1938." 

RESPONDENTS THEN FILED THIS SUIT IN THE DISTRICT COURT FOR DAMAGES. 
PETITIONER INVOKED THE 1938 SETTLEMENT AND THE BOARD'S AWARD THEREON AS
A BAR, AND MOVED FOR SUMMARY JUDGMENT.  RESPONDENTS RESISTED THIS
MOTION BY DENYING THE AUTHORITY OF THE BROTHERHOOD OFFICIALS TO PRESENT
THEIR CLAIMS TO THE BOARD OR TO AGREE TO THE SETTLEMENT.  THE DISTRICT
COURT GAVE SUMMARY JUDGMENT FOR THE PETITIONER WHICH WAS REVERSED BY
THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT ON THE GROUND THAT
THE QUESTION OF AUTHORITY OF THE BROTHERHOOD OFFICIALS RAISED AN ISSUE
OF FACT FOR TRIAL BY THE DISTRICT COURT.  140 F.2D 488.  THE
CORRECTNESS OF THIS RULING IS THE IMPORTANT QUESTION NOW BEFORE US.
323 U.S. 690. 

WE HAVE HAD RECENT OCCASION TO CONSIDER THE RAILWAY LABOR ACT IN
OTHER ASPECTS.  SWITCHMEN'S UNION V. BOARD, 320 U.S. 297; GENERAL
COMMITTEE V. M.-K.-T.R. CO., 320 U.S. 323; GENERAL COMMITTEE V.
SOUTHERN PACIFIC CO., 320 U.S. 338.  THE COMPLEXITIES WHICH THE
PROBLEMS IN THOSE CASES LAID BARE, MAKE CLEAR THAT THE SPECIFIC
QUESTION IMMEDIATELY BEFORE US CANNOT BE ISOLATED FROM THE SCHEME AND
STRUCTURE OF THE RAILWAY LABOR ACT AS AN ENTIRETY.  THE ACT IN TURN
CANNOT BE APPRECIATED APART FROM THE ENVIRONMENT OUT OF WHICH IT CAME
AND THE PURPOSES WHICH IT WAS DESIGNED TO SERVE. 

FROM THE POINT OF VIEW OF INDUSTRIAL RELATIONS OUR RAILROADS ARE
LARGELY A THING APART.  THE NATURE AND HISTORY OF THE INDUSTRY, THE
EXPERIENCE WITH UNIONIZATION OF THE ROADS, THE CONCENTRATION OF
AUTHORITY ON BOTH SIDES OF THE INDUSTRY IN NEGOTIATING COLLECTIVE
AGREEMENTS, THE INTIMACY OF RELATIONSHIP BETWEEN THE LEADERS OF THE TWO
PARTIES SHAPED BY A LONG COURSE OF NATIONAL, OR AT LEAST REGIONAL,
NEGOTIATIONS, THE INTRICATE TECHNICAL ASPECTS OF THESE AGREEMENTS AND
THE SPECIALIZED KNOWLEDGE FOR WHICH THEIR INTERPRETATION AND
APPLICATION CALL, THE PRACTICAL INTERDEPENDENCE OF SEEMINGLY SEPARATE
COLLECTIVE AGREEMENTS - THESE AND SIMILAR CONSIDERATIONS ADMONISH
AGAINST MUTILATING THE COMPREHENSIVE AND COMPLICATED SYSTEM GOVERNING
RAILROAD INDUSTRIAL RELATIONS BY EPISODIC UTILIZATION OF INAPPOSITE
JUDICIAL REMEDIES.    THE RAILWAY LABOR ACT OF 1934 IS PRIMARILY AN
INSTRUMENT OF GOVERNMENT.  AS SUCH, THE VIEW THAT IS HELD OF THE
PARTICULAR WORLD FOR WHICH THE ACT WAS DESIGNED WILL LARGELY GUIDE THE
DIRECTION OF JUDICIAL INTERPRETATION OF THE ACT.  THE RAILROAD WORLD
FOR WHICH THE RAILWAY LABOR ACT WAS DESIGNED HAS THUS BEEN SUMMARIZED
BY ONE OF THE MOST DISCERNING STUDENTS OF RAILROAD LABOR RELATIONS:
"THE RAILROAD WORLD IS LIKE A STATE WITHIN A STATE.  ITS POPULATION OF
SOME THREE MILLION, IF WE INCLUDE THE FAMILIES OF WORKERS, HAS ITS OWN
CUSTOMS AND ITS OWN VOCABULARY, AND LIVES ACCORDING TO RULES OF ITS OWN
MAKING....  THIS STATE WITHIN A STATE HAS ENJOYED A HIGH DEGREE OF
INTERNAL PEACE FOR TWO GENERATIONS; DESPITE THE DIVERGENT INTERESTS OF
ITS COMPONENT PARTS, THE REIGN OF LAW HAS BEEN FIRMLY ESTABLISHED." 
GARRISON, THE RAILROAD ADJUSTMENT BOARD:  A UNIQUE ADMINISTRATIVE
AGENCY (1937) 46 YALE L.J. 567, 568-69. 

THE RAILWAY LABOR ACT OF 1934 IS AN EXPRESSION OF THAT "REIGN OF LAW"
AND PROVIDES THE MEANS FOR MAINTAINING IT.  NEARLY HALF A CENTURY OF
EXPERIMENTAL LEGISLATION LIES BEHIND THE ACT.  IT IS FAIR TO SAY THAT
EVERY STAGE IN THE EVOLUTION OF THIS RAILROAD LABOR CODE WAS
PROGRESSIVELY INFUSED WITH THE PURPOSE OF SECURING SELF-ADJUSTMENT
BETWEEN THE EFFECTIVELY ORGANIZED RAILROADS AND THE EQUALLY EFFECTIVE
RAILROAD UNIONS AND, TO THAT END, OF ESTABLISHING FACILITIES FOR SUCH
SELF-ADJUSTMENT BY THE RAILROAD COMMUNITY OF ITS OWN INDUSTRIAL
CONTROVERSIES.  THESE WERE CERTAINLY NOT EXPECTED TO BE SOLVED BY ILL
ADAPTED JUDICIAL INTERFERENCES, ESCAPE FROM WHICH WAS INDEED ONE OF THE
DRIVING MOTIVES IN ESTABLISHING SPECIALIZED MACHINERY OF MEDIATION AND
ARBITRATION.  GOVERNMENT INTERVENTION OF ANY KIND WAS CONTEMPLATED ONLY
AS A LAST RESORT FOR THE AVOIDANCE OF CALAMITOUS STRIKES. 

THE LANDMARKS IN THIS HISTORY, TERSELY SUMMARIZED, ARE THE MEAGER ACT
OF OCTOBER 1, 1888, 25 STAT. 501, PROVIDING FOR VOLUNTARY ARBITRATION;
THE ERDMAN ACT OF JUNE 1, 1898, 30 STAT. 424, SECURING GOVERNMENT
MEDIATION AND ARBITRATION, BUT APPLICABLE ONLY TO THOSE ACTUALLY
ENGAGED IN TRAIN SERVICE OPERATIONS; THE NEWLANDS ACT OF JULY 15, 1913,
38 STAT. 103, PROVIDING FOR A PERMANENT BOARD OF MEDIATION AND ALSO A
BOARD OF ARBITRATION; THE ADAMSON ACT OF SEPTEMBER 3, 1916, 39 STAT.
721, AS TO WHICH SEE WILSON V. NEW, 243 U.S. 332; ORDER NO. 8 OF
FEBRUARY 21, 1918, FORMULATING THE LABOR POLICY OF THE GOVERNMENT AFTER
THE UNITED STATES TOOK OVER THE RAILROADS, SEE HINES, WAR HISTORY OF
AMERICAN RAILROADS (1928), P. 155 ET SEQ.; THE MORE ELABORATE MACHINERY
ESTABLISHED BY TITLE III OF THE TRANSPORTATION ACT OF 1920, 41 STAT.
456, 469, FOR ADJUSTMENTS OF THESE CONTROVERSIES, WHICH IN ITS TURN WAS
REPEALED AND REPLACED BY THE RAILWAY LABOR ACT OF MAY 20, 1926, 44
STAT. 577, LEGISLATION AGREED UPON BETWEEN THE RAILROADS AND THE
BROTHERHOODS AND PROBABLY UNIQUE IN HAVING BEEN FRANKLY ACCEPTED AS
SUCH BY THE PRESIDENT AND CONGRESS.  FN1  THE ACTUAL OPERATION OF THIS
LEGISLATION PARTLY DISAPPOINTED THE HOPES OF ITS SPONSORS, AND LED, FOR
THE STILL GREATER PROMOTION OF SELF-GOVERNMENT BY THE RAILROAD
INDUSTRY, TO THE ACT OF 1934. 

THE ASSUMPTION AS WELL AS THE AIM OF THAT ACT IS A PROCESS OF
PERMANENT CONFERENCE AND NEGOTIATION BETWEEN THE CARRIERS ON THE ONE
HAND AND THE EMPLOYEES THROUGH THEIR UNIONS ON THE OTHER.  SECTION 2,
FIRST, PROVIDES "IT SHALL BE THE DUTY OF ALL CARRIERS  ...  AND
EMPLOYEES TO EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN
AGREEMENTS CONCERNING RATES OF PAY, RULES, AND WORKING CONDITIONS, AND
TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF THE APPLICATION OF SUCH
AGREEMENTS OR OTHERWISE  ..."  SECTION 2, SECOND, PROVIDES "ALL
DISPUTES BETWEEN A CARRIER  ... AND ITS  ...  EMPLOYEES SHALL BE
CONSIDERED, AND, IF POSSIBLE, DECIDED, WITH ALL EXPEDITION, IN
CONFERENCE BETWEEN REPRESENTATIVES DESIGNATED AND AUTHORIZED SO TO
CONFER, RESPECTIVELY, BY THE CARRIER  ...  AND BY THE EMPLOYEES THEREOF
INTERESTED IN THE DISPUTE."  ACCORDING TO SEC. 2, SIXTH, "IN CASE OF A
DISPUTE  ...  ARISING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS, IT SHALL BE THE DUTY OF THE DESIGNATED REPRESENTATIVE OR
REPRESENTATIVES OF SUCH CARRIER  ...  AND OF SUCH EMPLOYEES, WITHIN TEN
DAYS AFTER THE RECEIPT OF NOTICE OF A DESIRE ON THE PART OF EITHER
PARTY TO CONFER IN RESPECT TO SUCH DISPUTE, TO SPECIFY A TIME AND PLACE
AT WHICH SUCH CONFERENCE SHALL BE HELD  ..."  SECTION 3, FIRST (I)
DIRECTS THAT DISPUTES GROWING OUT OF GRIEVANCES OR THE INTERPRETATION
OR APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS BE HANDLED BY CONFERENCE AND NEGOTIATION, INCLUDING RESORT
IF NECESSARY TO THE CHIEF OPERATING OFFICER OF THE CARRIER.  COMPLIANCE
WITH THESE STATUTORY DUTIES IS A PREREQUISITE TO APPEAL TO THE NATIONAL
RAILROAD ADJUSTMENT BOARD.  THE PURPOSE OF THIS LEGISLATION IS THE
EXERTION OF MAXIMUM PRESSURE TOWARD AMICABLE SETTLEMENT BETWEEN THE
PARTIES.  RESORT TO THE ADJUSTMENT BOARD IS THE LAST STEP IN THE
STATUTORY PROCESS. 

IN THE CONTROVERSY BEFORE US AN AMICABLE ADJUSTMENT BETWEEN THE
PARTIES - THE GOAL OF THE LEGISLATION - HAD BEEN ACHIEVED BY PURSUING
THE COURSE WHICH THE ACT OF 1934 DIRECTED.  WE ARE NOW ASKED TO NULLIFY
THIS SETTLEMENT, ARRIVED AT AFTER PROLONGED NEGOTIATIONS, AND TO OPEN
THE DOOR OF LITIGATION TO NEW DISCORDS.  NOT ONLY IS IT SOUGHT TO
REVIVE THE DISPUTE AND TO RESTORE IT TO THE STATUS IT HAD BEFORE THE
ADJUSTMENT BOARD MORE THAN EIGHT YEARS AGO.  THE RESPONDENTS CLAIM THAT
AFTER ALL THESE YEARS THEY HAVE A RIGHT TO REPUDIATE THEIR BARGAINING
AGENTS AND TO TRY THE AUTHORITY OF THESE AGENTS AS THOUGH THIS WERE A
CONVENTIONAL LAWSUIT INVOLVING THE RESPONSIBILITY OF A PRINCIPAL FOR
THE CONDUCT OF HIS AGENT. 

AS MEMBERS OF THEIR BROTHERHOOD, RESPONDENTS WERE OF COURSE FAMILIAR
WITH THE PROCEDURE WHEREBY THE UNION SPEAKS FOR THEM BOTH TO THE
RAILROAD AND BEFORE THE ADJUSTMENT BOARD.  THE BROTHERHOOD'S
"CONSTITUTION AND GENERAL RULES," WHICH THE RESPONDENTS MADE PART OF
THEIR CASE BELOW, ARE CLEAR ABOUT THIS.  RULE NO. 7 DECLARES THAT,
AFTER A GRIEVANCE HAS BEEN TRANSMITTED TO A GENERAL GRIEVANCE
COMMITTEE, THAT COMMITTEE "SHALL HAVE POWER TO ALTER, AMEND, ADD TO OR
STRIKE OUT  ... ANY PART OR ALL OF ANY COMPLAINT OR CLAIM SUBMITTED TO
THE COMMITTEE, SUBJECT TO APPEAL TO THE ENTIRE GENERAL COMMITTEE AND/OR
BOARD OF APPEALS.  A GENERAL GRIEVANCE COMMITTEE MAY AUTHORIZE THEIR
CHAIRMAN TO HANDLE ALL GRIEVANCES RECEIVED FROM LOCAL LODGES WITH THE
MANAGEMENT FOR SETTLEMENT  ..."  RESPONDENTS CANNOT DENY THAT THE
BROTHERHOOD OFFICIALS HAD AUTHORITY TO SEEK COMPLIANCE BY THE RAILROAD
WITH THE STARTING TIME AGREEMENT THROUGH THE ADJUSTMENT BOARD.  IN VIEW
OF THE SWEEPING POWER OF THE GENERAL GRIEVANCE COMMITTEE TO SETTLE
GRIEVANCES, THE SETTLEMENT THAT WAS MADE ON BEHALF OF THE BROTHERHOOD
IS INVULNERABLE.  THE ATTACK ON THE SETTLEMENT BECAUSE IT WAS SIGNED BY
ONLY TWO OF THE THREE MEMBERS OF THE COMMITTEE IS FRIVOLOUS.  SUCH
PROCEDURE IS NOT AT ALL UNUSUAL.  WILLIAMS AND JOHNSON SETTLED OTHER
GRIEVANCES IN LIKE MANNER, MANY OF THEM INVOLVING CLAIMS FOR MONEY. 
THE BROTHERHOOD'S OWN RULES SANCTION SUCH ACTION IN THAT THE COMMITTEE
MAY AUTHORIZE THE CHAIRMAN TO HANDLE ALL GRIEVANCES. 

THIS IS NOT A SIMPLE LITTLE CASE ABOUT AN AGENT'S AUTHORITY.  DEMANDS
OF THE EMPLOYEES' REPRESENTATIVE IMPLY NOT ONLY AUTHORITY FROM THOSE
FOR WHOM HE SPEAKS BUT THE DUTY OF RESPECT FROM THOSE TO WHOM HE
SPEAKS.  THE CARRIER IS UNDER A LEGAL DUTY TO TREAT WITH THE UNION'S
REPRESENTATIVE FOR THE PURPOSES OF THE RAILWAY LABOR ACT.  SECTION 2,
NINTH; SEE VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515.  WE DO
NOT HAVE THE ORDINARY CASE WHERE A THIRD PERSON DEALING WITH AN
OSTENSIBLE AGENT MUST AT HIS PERIL ASCERTAIN THE AGENT'S AUTHORITY.  IN
SUCH A SITUATION A PERSON MAY PROTECT HIMSELF BY REFUSING TO DEAL. 
HERE PETITIONER HAS A DUTY TO DEAL.  IF PETITIONER REFUSES TO DEAL WITH
THE OFFICIALS OF THE EMPLOYEES' UNION BY CHALLENGING THEIR AUTHORITY,
IT DOES SO UNDER PAIN OF PENALTY.  IF IT DEALS WITH THEM ON THE
REASONABLE BELIEF THAT THE GRIEVANCE OFFICIALS OF THE BROTHERHOOD ARE
ACTING IN ACCORDANCE WITH CUSTOMARY UNION PROCEDURE, SETTLEMENTS THUS
MADE OUGHT NOT TO BE AT THE HAZARD OF BEING JETTISONED BY FUTURE
LITIGATION.  TO ALLOW SUCH SETTLEMENTS TO BE THUS SET ASIDE IS TO
OBSTRUCT THE SMOOTH WORKING OF THE ACT.  IT UNDERMINES THE CONFIDENCE
SO INDISPENSABLE TO ADJUSTMENT BY NEGOTIATION, WHICH IS THE VITAL
OBJECT OF THE ACT.  SEE DIVISION 525, ORDER OF RAILWAY CONDUCTORS V.
GORMAN, 133 F.2D 273, 278. 

BUT RESPONDENTS CLAIM THAT IRRESPECTIVE OF THE AUTHORITY OF THE
BROTHERHOOD OFFICIALS TO HANDLE CLAIMS FOR THE ENFORCEMENT OF THE
AGREED STARTING TIME, WILLIAMS DID NOT HAVE AUTHORITY TO PRESENT TO THE
ADJUSTMENT BOARD THE CLAIM FOR DAMAGES DUE TO RESPONDENTS FOR
PETITIONER'S ALLEGED PAST VIOLATION OF THE STARTING-TIME AGREEMENT. 
THEY INSIST THAT THERE IS NO RELATION BETWEEN A CLAIM FOR MONEY
RESULTING FROM THE VIOLATION OF A COLLECTIVE AGREEMENT AND A CLAIM FOR
THE ENFORCEMENT OF A COLLECTIVE AGREEMENT.  BUT SURELY THIS IS TO SEVER
THAT WHICH IS ORGANIC.  IT WHOLLY DISREGARDS THE NATURE OF SUCH A
COLLECTIVE AGREEMENT, ITS IMPLICATIONS AND ITS RAMIFICATIONS.  IN
PASSING ON THE CLAIM FOR MONEY DAMAGES ARISING OUT OF THE YARD
AGREEMENT, ANY TRIBUNAL WOULD HAVE TO EXAMINE, INTERPRET AND APPLY THE
COLLECTIVE AGREEMENT PRECISELY AS IT WOULD IF THE ISSUE WERE THE DUTY
TO OBSERVE THE AGREEMENT IN THE FUTURE.  AN AWARD BASED ON THE
APPLICATION OF THE COLLECTIVE AGREEMENT WOULD, QUITE APART FROM
TECHNICAL QUESTIONS OF RES JUDICATA, AFFECT FUTURE CLAIMS GOVERNED BY
THE SAME COLLECTIVE AGREEMENT WHATEVER THE PARTICULAR FORMS IN WHICH
THE CLAIMS MAY BE CAST.  TO FIND HERE MERELY AN ISOLATED, NARROW
QUESTION OF LAW AS TO PAST LIABILITY IS TO DISREGARD THE TIES WHICH
BIND THE MONEY CONTROVERSY TO ITS RAILROAD ENVIRONMENT.  SUCH A VIEW IS
BLIND TO THE FACT THAT "ALL MEMBERS OF THE CLASS OR CRAFT TO WHICH AN
AGGRIEVED EMPLOYEE BELONGS HAVE A REAL AND LEGITIMATE INTEREST IN THE
DISPUTE.  EACH OF THEM, AT SOME LATER TIME, MAY BE INVOLVED IN A
SIMILAR DISPUTE."  40 OPS.  ATTY.  GEN., NO. 59(DEC.  29, 1942) PP. 4
5.  INDEED, SUCH A VIEW LEAVES OUT OF CONSIDERATION NOT ONLY THE
SIGNIFICANT BEARING OF THE CONSTRUCTION OF THE SAME COLLECTIVE
AGREEMENT ON PARTS OF THE CARRIER'S LINES NOT IMMEDIATELY BEFORE THE
COURT.  IT OVERLOOKS THE RELATION OF A PROVISION IN A COLLECTIVE
AGREEMENT WITH ONE RAILROAD TO COMPARABLE PROVISIONS OF COLLECTIVE
AGREEMENTS WITH OTHER ROADS. 

TO ALLOW THE ISSUE OF AUTHORIZATION AFTER AN AWARD BY THE BOARD TO BE
RELITIGATED IN THE COURTS IS INIMICAL TO THE INTERNAL GOVERNMENT OF THE
BROTHERHOOD.  UNION MEMBERSHIP GENERATES COMPLICATED RELATIONS.  POLICY
COUNSELS AGAINST JUDICIAL INTRUSION UPON THESE RELATIONS.  IF RESORT TO
COURTS IS AT ALL AVAILABLE, IT CERTAINLY SHOULD NOT DISREGARD AND
DISPLACE THE ARRANGEMENTS WHICH THE MEMBERS OF THE ORGANIZATION
VOLUNTARILY ESTABLISH FOR THEIR RECIPROCAL INTERESTS AND BY WHICH THEY
BOUND THEMSELVES TO BE GOVERNED.  THE RIGHTS AND DUTIES OF MEMBERSHIP
ARE GOVERNED BY THE RULES OF THE BROTHERHOOD.  RULE 10 CONCERNS
OBJECTIONS TO OFFICIAL ACTION:  "WHATEVER ACTION MAY BE TAKEN BY THE
GENERAL GRIEVANCE COMMITTEE  ...  SHALL BE LAW TO THE LODGES ON THAT
ROAD UNTIL THE NEXT MEETING OF THE BOARD OF APPEALS, AND IF ANY MEMBER
REFUSES TO VOTE OR ABIDE BY THE ACTION OF SUCH GENERAL GRIEVANCE
COMMITTEE OR BOARD OF ADJUSTMENT HE SHALL BE EXPELLED FROM THE
BROTHERHOOD FOR VIOLATION OF OBLIGATION."  TO ASK COURTS TO ADJUDICATE
THE MEANING OF THE BROTHERHOOD RULES AND CUSTOMS WITHOUT PRELIMINARY
RESORT TO REMEDIAL PROCEEDINGS WITHIN THE BROTHERHOOD IS TO ENCOURAGE
INFLUENCES OF DISRUPTION WITHIN THE UNION INSTEAD OF FOSTERING THESE
UNIONS AS STABILIZING FORCES.  RULES OF FRATERNAL ORGANIZATIONS, WITH
ALL THE CUSTOMS AND ASSUMPTIONS THAT GIVE THEM LIFE, CANNOT BE TREATED
AS THOUGH THEY WERE ORDINARY LEGAL DOCUMENTS OF SETTLED MEANING. 
"FREEDOM OF LITIGATION, FOR INSTANCE, IS HARDLY SO ESSENTIAL A PART OF
THE DEMOCRATIC PROCESS THAT THE COURTS SHOULD BE ASKED TO STRIKE DOWN
ALL HINDRANCES TO ITS PURSUIT.  THE COURTS ARE AS WISE, TO TAKE AN
EXAMPLE OF THIS, IN ADHERING TO THE GENERAL REQUIREMENT THAT ALL
AVAILABLE REMEDIES WITHIN THE UNION BE EXHAUSTED BEFORE REDRESS IS
SOUGHT BEFORE THEM AS THEY ARE UNWISE IN MANY OF THE EXCEPTIONS THEY
HAVE GRAFTED UPON THIS RULE."  WITMER, CIVIL LIBERTIES AND THE TRADE
UNION (1941) 50 YALE L.J. 621, 630.  TO AN INCREASING EXTENT, COURTS
REQUIRE DISSIDENTS WITHIN A UNION TO SEEK INTERPRETATION OF THE
ORGANIZATION'S RULES AND TO SEEK REDRESS FOR GRIEVANCES ARISING OUT OF
THEM BEFORE APPROPRIATE UNION TRIBUNALS.  COMPARE NORFOLK & WESTERN R.
CO. V. HARRIS, 260 KY. 132, 84 S.W.2D 69; AGRIPPINO V. PERROTTI, 270
MASS. 55, 169 N.E. 793; SNAY V. LOVELY, 276 MASS. 159, 176 N.E. 791;
WEBB V. CHICAGO, R.I. & G.R. CO., 136 S.W.2D 245. 

THE RAILWAY LABOR ACT, AS THE PRODUCT OF LONG EXPERIENCE, IS A
COMPLICATED BUT CAREFULLY DEVISED SCHEME FOR ADJUSTING THE RELATIONS
BETWEEN THE TWO POWERFUL GROUPS CONSTITUTING THE RAILROAD INDUSTRY.  IT
MISCONCEIVES THE LEGISLATION AND MUTILATES ITS PROVISIONS TO READ INTO
IT COMMON LAW NOTIONS FOR THE SETTLEMENT OF PRIVATE RIGHTS.  IF, WHEN A
DISPUTE ARISES OVER THE MEANING OF A COLLECTIVE AGREEMENT, THE LEGALLY
DESIGNATED RAILROAD BARGAINING UNIT CANNOT NEGOTIATE WITH THE CARRIER
WITHOUT FIRST OBTAINING THE SPECIFIC AUTHORIZATION OF EVERY INDIVIDUAL
MEMBER OF THE UNION WHO MAY BE FINANCIALLY INVOLVED IN THE DISPUTE, IT
NOT ONLY WEAKENS THE UNION BY ENCOURAGING DIVISIVE ELEMENTS.  IT
GRAVELY HANDICAPS THE UNION IN ITS POWER TO BARGAIN RESPONSIBLY.  THAT
IS NOT ALL.  NOT TO ALLOW THE DULY ELECTED OFFICERS OF AN ACCREDITED
UNION TO SPEAK FOR ITS MEMBERSHIP IN ACCORDANCE WITH THE TERMS OF THE
INTERNAL GOVERNMENT OF THE UNION AND TO PERMIT ANY MEMBER OF THE UNION
TO PURSUE HIS OWN INTEREST UNDER A COLLECTIVE AGREEMENT UNDERMINES THE
VERY CONCEPTION OF A COLLECTIVE AGREEMENT.  IT REINTRODUCES THE
DESTRUCTIVE INDIVIDUALISM IN THE RELATIONS BETWEEN THE RAILROADS AND
THEIR WORKERS WHICH IT WAS THE VERY PURPOSE OF THE RAILWAY LABOR ACT TO
ELIMINATE.  TO ALLOW EVERY INDIVIDUAL WORKER TO BASE INDIVIDUAL CLAIMS
ON HIS PRIVATE NOTIONS OF THE SCOPE AND MEANING OF A COLLECTIVE
AGREEMENT INTENDED TO LAY DOWN UNIFORM STANDARDS FOR ALL THOSE COVERED
BY THE COLLECTIVE AGREEMENT, IS TO PERMIT JURIES AND COURTS TO MAKE
VARYING FINDINGS AND GIVE VARYING CONSTRUCTIONS TO AN AGREEMENT
INEVITABLY COUCHED IN WORDS OR PHRASES REFLECTING THE HABITS, USAGE AND
UNDERSTANDING OF THE RAILROAD INDUSTRY.  THUS WILL BE INTRODUCED THOSE
DISLOCATING DIFFERENTIATIONS FOR WORKERS IN THE SAME CRAFT WHICH HAVE
ALWAYS BEEN AMONG THE MOST FERTILE PROVOCATIONS TO FRICTION, STRIFE,
AND STRIKE IN THE RAILROAD WORLD.  THE RAILWAY LABOR ACT, ONE HAD
SUPPOSED, WOULD BE CONSTRUED SO AS TO REDUCE AND NOT TO MULTIPLY THESE
SEEDS OF STRIFE. 

IN ORDER TO AVOID MISCHIEVOUS OPPORTUNITIES FOR THE ASSERTION OF
INDIVIDUAL CLAIMS BY SHIPPERS AS AGAINST THE COMMON INTEREST OF
UNIFORMITY IN CONSTRUING RAILROAD TARIFFS, THIS COURT SO CONSTRUED THE
INTERSTATE COMMERCE ACT IN THE FAMOUS ABILENE COTTON OIL CASE, 204 U.S.
426, AS TO WITHDRAW FROM THE SHIPPER THE HISTORIC COMMON LAW RIGHT TO
SUE IN THE COURTS FOR CHARGING UNREASONABLE RATES.  IT REQUIRED RESORT
TO THE INTERSTATE COMMERCE COMMISSION BECAUSE NOT TO DO SO WOULD RESULT
IN THE IMPAIRMENT OF THE GENERAL PURPOSE OF THAT ACT.  IT DID SO
BECAUSE EVEN THOUGH THEORETICALLY THIS COURT COULD ULTIMATELY REVIEW
SUCH ADJUDICATIONS IMBEDDED IN THE VARIOUS JUDICIAL JUDGMENTS - IF A
SHIPPER COULD GO TO A COURT IN THE FIRST INSTANCE - THERE WOULD BE
CONSIDERATIONS OF FACT WHICH THIS COURT COULD NOT POSSIBLY DISENTANGLE
SO AS TO SECURE THE NECESSARY UNIFORMITY.  THE BENEFICENT RULE IN THE
ABILENE COTTON OIL CASE WAS EVOLVED BY READING THE INTERSTATE COMMERCE
ACT NOT AS THOUGH IT WERE A COLLECTION OF ABSTRACT WORDS, BUT BY
TREATING IT AS AN INSTRUMENT OF GOVERNMENT GROWING OUT OF LONG
EXPERIENCE WITH CERTAIN EVILS AND ADDRESSED TO THEIR CORRECTION.  CHIEF
JUSTICE WHITE'S OPINION IN THAT CASE WAS CHARACTERIZED BY HIS
SUCCESSOR, CHIEF JUSTICE TAFT, AS A "CONSPICUOUS INSTANCE OF HIS
UNUSUAL AND REMARKABLE POWER AND FACILITY IN STATES-MANLIKE
INTERPRETATION OF STATUTE LAW."  257 U.S. XXV.  THE PROVISIONS OF THE
RAILWAY LABOR ACT DO NOT EVEN NECESSITATE SUCH A CREATIVE ACT OF
ADJUDICATION AS THIS COURT IN THE ABILENE CASE UNANIMOUSLY
ACCOMPLISHED.  THE RAILWAY LABOR ACT CONTAINS NO EMBARRASSING SPECIFIC
PROVISION, AS WAS TRUE OF SEC. 22 OF THE INTERSTATE COMMERCE ACT, 24
STAT. 379, 387, CALLING FOR SUBORDINATION TO THE MAIN PURPOSE OF THE
LEGISLATION.  THE CONSIDERATIONS MAKING FOR HARMONIOUS ADJUSTMENT OF
RAILROAD INDUSTRIAL RELATIONS THROUGH THE MACHINERY DESIGNED BY
CONGRESS IN THE RAILWAY LABOR ACT ARE DISREGARDED BY ALLOWING THAT
MACHINERY TO BE BY-PASSED AND BY INTRODUCING DISLOCATING
DIFFERENTIATIONS THROUGH INDIVIDUAL RESORT TO THE COURTS IN THE
APPLICATION OF A COLLECTIVE AGREEMENT. 

SINCE THE CLAIM BEFORE THE ADJUSTMENT BOARD WAS FOR MONEY, THERE
REMAINS THE QUESTION WHETHER ITS DISPOSITION WAS OPEN TO JUDICIAL
REVIEW.  THE RAILWAY LABOR ACT COMMANDS THAT THE BOARD'S "AWARDS SHALL
BE FINAL AND BINDING UPON BOTH PARTIES TO THE DISPUTE, EXCEPT INSOFAR
AS THEY SHALL CONTAIN A MONEY AWARD."  SEC. 3, FIRST (M).  BUT THE
DETERMINATION HERE IN CONTROVERSY DOES NOT "CONTAIN A MONEY AWARD" SO
AS TO BE EXCEPTED FROM THE FINAL AND BINDING EFFECT GIVEN OTHER
AWARDS.  THE OBVIOUS MEANING OF "MONEY AWARD" IS AN AWARD DIRECTING THE
PAYMENT OF MONEY, NOT ONE DENYING PAYMENT.  SEE BERRYMAN V. PULLMAN
CO., 48 F.SUPP.  542.  WE ARE POINTED TO NO AIDS TO CONSTRUCTION THAT
SHOULD WITHHOLD US FROM GIVING THE FAMILIAR TERM "MONEY AWARD" ANY
OTHER THAN ITS ORDINARY MEANING AS SOMETHING THAT AWARDS MONEY.  THIS
CONSTRUCTION IS CONFIRMED BY COMPARISON WITH THE PROVISIONS OF THE
INTERSTATE COMMERCE ACT DEALING WITH REPARATION ORDERS.  SINCE BOTH
ACTS CAME OUT OF THE SAME CONGRESSIONAL COMMITTEES ONE FINDS, NATURALLY
ENOUGH, THAT THE PROVISIONS FOR ENFORCEMENT AND REVIEW OF THE
ADJUSTMENT BOARD'S AWARDS WERE BASED ON THOSE FOR REPARATION ORDERS BY
THE INTERSTATE COMMERCE COMMISSION.  COMPARE RAILWAY LABOR ACT, SEC. 3,
FIRST (P) WITH INTERSTATE COMMERCE ACT, AS AMENDED BY SEC. 5 OF THE
HEPBURN ACT, 34 STAT. 584, 590, 49 U.S.C. SEC. 16(1), (2).  IF A
CARRIER FAILS TO COMPLY WITH A REPARATION ORDER, AS IS TRUE OF NON
COMPLIANCE WITH AN ADJUSTMENT BOARD AWARD, THE COMPLAINANT MAY SUE IN
COURT FOR ENFORCEMENT; THE COMMISSION'S ORDER AND FINDINGS AND EVIDENCE
THEN BECOME PRIMA FACIE EVIDENCE OF THE FACTS STATED.  BUT A DENIAL OF
A MONEY CLAIM BY THE INTERSTATE COMMERCE COMMISSION BARS THE DOOR TO
REDRESS IN THE COURTS.  BALTIMORE & OHIO R. CO. V. BRADY, 288 U.S. 448;
I.C.C. V. UNITED STATES, 289 U.S. 385, 388; TERMINAL WAREHOUSE V.
PENNSYLVANIA R. CO., 297 U.S. 500, 507. 

THE RAILWAY LABOR ACT PRECLUDES REVIEW OF THE BOARD'S AWARD; AND,
SINCE AUTHORIZATION OF THE BROTHERHOOD OFFICIALS TO MAKE THE SETTLEMENT
IS NOT NOW OPEN TO JUDICIAL INQUIRY, THE JUDGMENT CALLS FOR REVERSAL. 

FN1  IN HIS MESSAGE OF DECEMBER 8, 1925, TO CONGRESS, PRESIDENT
COOLIDGE STATED:  "I AM INFORMED THAT THE RAILROAD MANAGERS AND THEIR
EMPLOYEES HAVE REACHED A SUBSTANTIAL AGREEMENT AS TO WHAT LEGISLATION
IS NECESSARY TO REGULATE AND IMPROVE THEIR RELATIONSHIP.  WHENEVER THEY
BRING FORWARD SUCH PROPOSALS, WHICH SEEM SUFFICIENT ALSO TO PROTECT THE
INTERESTS OF THE PUBLIC, THEY SHOULD BE ENACTED INTO LAW."  67 CONG.
REC. 463. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON JOIN
IN THIS DISSENT. 
..END :















TRUST OF BINGHAM V. COMM'R, 325 U.S. 365 


NO. 932.  ARGUED APRIL 27, 1945.  - DECIDED JUNE 4, 1945.  - 145 F.2D
568, REVERSED. 


1.  THE QUESTIONS WHETHER, ON THE FACTS FOUND BY THE TAX COURT,
EXPENSES INCURRED BY TRUSTEES IN CONTESTING AN INCOME TAX DEFICIENCY
ASSESSMENT AND IN WINDING UP THE TRUST AFTER ITS EXPIRATION ARE
DEDUCTIBLE UNDER SEC. 23(A)(2) OF THE INTERNAL REVENUE CODE AS EXPENSES
FOR THE "MANAGEMENT ...  OF PROPERTY HELD FOR THE PRODUCTION OF
INCOME," ARE CLEAR-CUT QUESTIONS OF LAW, THE DECISION OF WHICH BY THE
TAX COURT DOES NOT FORECLOSE THEIR DECISION BY THE CIRCUIT COURT OF
APPEALS OR THIS COURT, ALTHOUGH THEIR DECISION BY THE TAX COURT IS
ENTITLED TO GREAT WEIGHT.  P. 371. 

2.  THERE WAS NO ERROR OF LAW IN THE TAX COURT'S DETERMINATION, UPON
THE FACTS FOUND, THAT EXPENSES INCURRED BY TRUSTEES IN CONTESTING AN
INCOME TAX DEFICIENCY ASSESSMENT AND IN WINDING UP THE TRUST AFTER ITS
EXPIRATION WERE DEDUCTIBLE UNDER SEC. 23(A)(2) OF THE INTERNAL REVENUE
CODE AS EXPENSES FOR THE "MANAGEMENT  ...  OF PROPERTY HELD FOR THE
PRODUCTION OF INCOME"; AND REVERSAL BY THE CIRCUIT COURT OF APPEALS ON
THE GROUND THAT SUCH EXPENSES WERE NOT "FOR THE PRODUCTION OF INCOME"
AND NOT FOR THE MANAGEMENT OF "PROPERTY HELD FOR THE PRODUCTION OF
INCOME" WITHIN THE MEANING OF THAT SECTION WAS UNWARRANTED.  PP. 373,
376. 

3.  THE TRUST PROPERTIES DID NOT CEASE TO BE "HELD FOR THE PRODUCTION
OF INCOME" EVEN THOUGH, AS THE TRUST TERM REACHED ITS EXPIRY DATE, THE
TRUSTEES WERE UNDER A DUTY TO DISTRIBUTE THE PROPERTY AMONG THE
REMAINDERMEN.  P. 373. 

4.  SECTION 23(A)(2) IS COMPARABLE AND IN PARI MATERIA WITH SEC.
23(A)(1), AUTHORIZING THE DEDUCTION OF BUSINESS OR TRADE EXPENSES.  P.
373. 

5.  THE COSTS OF DISTRIBUTION OF THE CORPUS OF THE TRUST WERE
EXPENSES OF A FUNCTION OF "MANAGEMENT" OF THE TRUST PROPERTY QUITE AS
MUCH AS WERE EXPENSES INCURRED IN PRODUCING THE TRUST INCOME.  P. 375. 

6.  REFERENCES IN THE HOUSE COMMITTEE REPORT ACCOMPANYING THE BILL
WHICH BECAME THE REVENUE ACT OF 1942, AND IN TREASURY REGULATIONS 103,
SEC. 19.23(A)-15, TO THE NON-DEDUCTIBILITY OF ADMINISTRATORS' AND
EXECUTORS' EXPENSES, INCURRED IN THE ADMINISTRATION OF THE ESTATE OF
THE DECEDENT, INCLUDING THOSE OF DISTRIBUTING ASSETS TO THE
BENEFICIARIES, DO NOT REQUIRE BY ANALOGY THAT THE TRUSTEES'
DISTRIBUTION EXPENSES HERE IN QUESTION BE DEEMED NON-DEDUCTIBLE.  P.
375. 

7.  SECTION 23(A)(2) DOES NOT RESTRICT DEDUCTIONS TO THOSE LITIGATION
EXPENSES WHICH ALONE PRODUCE INCOME; ON THE CONTRARY, BY ITS TERMS AND
IN ANALOGY WITH THE RULE UNDER SEC. 23(A)(1), THE TRUST MAY DEDUCT
LITIGATION EXPENSES WHEN THEY ARE DIRECTLY CONNECTED WITH OR
PROXIMATELY RESULT FROM THE ENTERPRISE - THE MANAGEMENT OF PROPERTY
HELD FOR PRODUCTION OF INCOME.  KORNHAUSER V. UNITED STATES, 276 U.S.
145.  P. 376. 

8.  TO THE EXTENT THAT TREASURY REGULATIONS 103, SEC. 19.23(A)-15
PURPORTS TO DENY DEDUCTION OF LITIGATION EXPENSE UNLESS IT IS TO
PRODUCE INCOME, AND TO THE EXTENT THAT IT DEPARTS FROM THE RULE OF
KORNHAUSER V. UNITED STATES, IT CONFLICTS WITH THE MEANING AND PURPOSE
OF SEC. 23(A)(2) AND IS UNAUTHORIZED.  P. 377. 

TRUST UNDER THE WILL OF BINGHAM ET AL. V. COMMISSIONER OF INTERNAL
REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 324 U.S. 835, TO REVIEW THE REVERSAL OF A DECISION OF THE
TAX COURT, 2 T.C. 853, WHICH SET ASIDE THE COMMISSIONER'S DETERMINATION
OF A DEFICIENCY IN INCOME TAX. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE THE TRUSTEES OF A TESTAMENTARY TRUST CREATED FOR A
TERM OF TWENTY-ONE YEARS UNDER THE WILL OF MARY LILY (FLAGLER)
BINGHAM.  THE TESTATRIX BEQUEATHED TO THE TRUSTEES THE RESIDUE OF HER
ESTATE, INCLUDING A LARGE NUMBER OF SECURITIES.  THE TRUSTEES WERE
EMPOWERED IN THEIR DISCRETION TO SELL ANY OF THE PROPERTY HELD IN TRUST
(EXCEPT CERTAIN SECURITIES OF TWO COMPANIES DESIGNATED AS THE
"PRINCIPAL PROPERTIES"), TO INVEST AND REINVEST THE PROCEEDS AND THE
INCOME FROM THE TRUST FUND, AND TO USE THE PROCEEDS AND THE INCOME FOR
THE BENEFIT OF THE PRINCIPAL PROPERTIES AND FOR THE "MAINTENANCE,
ADMINISTRATION OR DEVELOPMENT OF THE SAID PRINCIPAL OR SUBSIDIARY
PROPERTIES."  THE TRUSTEES WERE TO PAY SPECIFIED AMOUNTS ANNUALLY TO
CERTAIN LEGATEES.  WHEN THE NIECE OF THE TESTATRIX REACHED A CERTAIN
AGE, SHE WAS TO RECEIVE FROM THE TRUST A SPECIFIED AMOUNT IN CASH OR
SECURITIES.  AT THE END OF TWENTY-ONE YEARS, THE TRUSTEES WERE DIRECTED
TO PAY OTHER LEGACIES, AND TO DISTRIBUTE THE REMAINDER OF THE FUND IN
EQUAL PARTS TO A BROTHER AND TWO SISTERS OF THE TESTATRIX. 

IN 1935 PETITIONERS PAID THE BEQUEST TO THE NIECE PARTLY IN
SECURITIES.  THE COMMISSIONER ASSESSED A DEFICIENCY OF OVER $365,000
FOR INCOME TAX UPON THE APPRECIATION IN VALUE OF THE SECURITIES WHILE
THEY WERE IN PETITIONERS' HANDS.  IN CONTESTING UNSUCCESSFULLY THIS
DEFICIENCY, PETITIONERS PAID OUT IN THE YEAR 1940 APPROXIMATELY $16,000
IN COUNSEL FEES AND EXPENSES.  IN THAT YEAR, ALSO, PETITIONERS PAID OUT
ABOUT $9,000 FOR LEGAL ADVICE IN CONNECTION WITH THE PAYMENT OF ONE OF
THE CASH LEGACIES, AND IN CONNECTION WITH TAX AND OTHER PROBLEMS
ARISING UPON THE EXPIRATION OF THE TRUST AND RELATING TO THE FINAL
DISTRIBUTION OF THE TRUST FUND AMONG THE THREE RESIDUARY LEGATEES. 

THE QUESTION IS WHETHER THESE LEGAL EXPENSES, PAID IN 1940, ARE
DEDUCTIBLE FROM GROSS INCOME IN THE COMPUTATION OF THE TRUST'S INCOME
TAX, AS "NON-TRADE" OR "NON-BUSINESS" EXPENSES WITHIN THE MEANING OF
SEC. 23(A)(2) OF THE INTERNAL REVENUE CODE.  THAT SECTION, ADDED BY
SEC. 121 OF THE REVENUE ACT OF 1942, AND MADE APPLICABLE TO TAX YEARS
"BEGINNING AFTER DECEMBER 31, 1938," AUTHORIZES THE DEDUCTION OF "ALL
THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE
YEAR FOR THE PRODUCTION OR COLLECTION OF INCOME, OR FOR THE MANAGEMENT,
CONSERVATION, OR MAINTENANCE OF PROPERTY HELD FOR THE PRODUCTION OF
INCOME."  SECTION 162 OF THE CODE, SO FAR AS NOW RELEVANT, MAKES SEC.
23(A)(2) APPLICABLE TO THE INCOME TAXATION OF TRUSTS. 

PETITIONERS, IN THEIR INCOME TAX RETURN FOR 1940, TOOK DEDUCTIONS FOR
THE LEGAL EXPENSES.  THE COMMISSIONER DISALLOWED THE DEDUCTIONS AND
ASSESSED A TAX DEFICIENCY, AND PETITIONERS FILED THE PRESENT SUIT IN
THE TAX COURT TO SET ASIDE THE ASSESSMENT.  THAT COURT, AFTER FINDING
THE FACTS AS WE HAVE STATED THEM, FOUND THAT THE TRUST PROPERTY WAS
HELD FOR THE PRODUCTION OF INCOME; THAT ALL THE ITEMS IN QUESTION WERE
ORDINARY AND NECESSARY EXPENSES OF THE MANAGEMENT OF THE TRUST
PROPERTY; AND THAT THE FEES AND EXPENSES FOR CONTESTING THE INCOME TAX
DEFICIENCY ASSESSMENT WERE ALSO FOR THE CONSERVATION OF THE TRUST
PROPERTY.  IT THEREFORE CONCLUDED THAT ALL WERE RIGHTLY DEDUCTED IN
CALCULATING THE TAXABLE NET INCOME OF THE TRUST.  2 T.C. 853. 

ON THE GOVERNMENT'S PETITION FOR REVIEW, THE COURT OF APPEALS FOR THE
SECOND CIRCUIT REVERSED.  145 F.2D 568.  WE GRANTED CERTIORARI, 324
U.S. 835, ON A PETITION WHICH ASSERTED AS GROUNDS FOR THE WRIT THAT THE
DECISION OF THE COURT OF APPEALS DEPARTED FROM THE PRINCIPLES LAID DOWN
IN DOBSON V. COMMISSIONER, 320 U.S. 489, GOVERNING REVIEW OF DECISIONS
OF THE TAX COURT, AND THAT THE DECISION CONFLICTED IN PRINCIPLE WITH
COMMISSIONER V. HEININGER, 320 U.S. 467, AND KORNHAUSER V. UNITED
STATES, 276 U.S. 145. 

THE COURT OF APPEALS LEFT UNDISTURBED THE TAX COURT'S FINDINGS THAT
THE QUESTIONED ITEMS WERE ORDINARY AND NECESSARY EXPENSES FOR THE
MANAGEMENT OR CONSERVATION OF THE TRUST PROPERTY, BUT IT HELD THAT THE
FEES FOR CONTESTING THE TAX DEFICIENCY WERE NEVERTHELESS NOT DEDUCTIBLE
UNDER SEC. 23(A)(2).  IT THOUGHT THAT THE EXPENSES OF CONTESTING THE
INCOME TAX HAD NOTHING TO DO WITH THE PRODUCTION OF INCOME AND HENCE
WERE NOT DEDUCTIBLE AS EXPENSES "FOR THE PRODUCTION OF INCOME" WITHIN
THE MEANING OF THE STATUTE.  THE COURT ALSO THOUGHT THAT THESE EXPENSES
WERE NOT DEDUCTIBLE, BECAUSE THEY WERE PAID IN CONNECTION WITH PROPERTY
HELD BY THE TRUSTEES "READY FOR DISTRIBUTION," AND HENCE NOT "FOR THE
PRODUCTION OF INCOME."  SIMILARLY IT HELD THAT THE FEES FOR
PROFESSIONAL SERVICES RENDERED IN CONNECTION WITH THE PAYMENT OF
LEGACIES AND THE DISTRIBUTION OF THE TRUST FUND, WERE NOT EXPENSES
RELATING TO THE MANAGEMENT OF PROPERTY HELD FOR THE PRODUCTION OF
INCOME, SINCE THEY WERE RENDERED AFTER THE TRUST TERM HAD EXPIRED AND
WHEN THE PROPERTY WAS READY FOR DISTRIBUTION. 

THE GOVERNMENT MAKES LIKE ARGUMENTS HERE.  IN ADDITION IT URGES THAT
THE EXPENSES IN CONNECTION WITH THE DISTRIBUTION OF THE TRUST FUND WERE
NOT EXPENSES OF MANAGEMENT OF THE TRUST PROPERTY HELD FOR THE
PRODUCTION OF INCOME BUT ONLY EXPENSES RELATING TO ITS DEVOLUTION; AND
THAT THE EXPENSES ARE NOT DEDUCTIBLE UNDER SEC. 23(A)(2) BECAUSE THERE
WAS NO PROXIMATE RELATIONSHIP BETWEEN THE EXPENSES WHEN PAID AND THE
PROPERTY THEN HELD IN TRUST. 

WE THINK THAT THESE OBJECTIONS TO THE DEDUCTIONS FAIL TO TAKE PROPER
ACCOUNT OF THE PLAIN LANGUAGE OF SEC. 23(A)(2), AND THE PURPOSE OF THE
AND THAT NOTWITHSTANDING THE WEIGHT OF THE TAX COURT'S DECISION AGAINST
THEM, THEY RAISE QUESTIONS OF LAW REVIEWABLE BY THE CIRCUIT COURT OF
APPEALS AND BY THIS COURT. 

THE REQUIREMENT OF SEC. 23(A)(2) THAT DEDUCTIBLE EXPENSES BE
"ORDINARY AND NECESSARY" IMPLIES THAT THEY MUST BE REASONABLE IN AMOUNT
AND MUST BEAR A REASONABLE AND PROXIMATE RELATION TO THE MANAGEMENT OF
PROPERTY HELD FOR THE PRODUCTION OF INCOME.  SEE H. REP. NO. 2333, 77TH
CONG., 2D SESS., P. 75; SEN. REP. NO. 1631, 77TH CONG., 2D SESS., P.
88.  ORDINARILY QUESTIONS OF REASONABLENESS AND PROXIMITY ARE FOR THE
TRIER OF FACT, HERE THE TAX COURT.  COMMISSIONER V. HEININGER, SUPRA,
475; MCDONALD V. COMMISSIONER, 323 U.S. 57, 64-65; SEE COMMISSIONER V.
SCOTTISH AMERICAN INVESTMENT CO., 323 U.S. 119.  AND EVEN WHEN THEY ARE
HYBRID QUESTIONS OF "MIXED LAW AND FACT," THEIR RESOLUTION, BECAUSE OF
THE FACT ELEMENT INVOLVED, WILL USUALLY AFFORD LITTLE CONCRETE GUIDANCE
FOR FUTURE CASES, AND REVIEWING COURTS WILL SET ASIDE THE DECISIONS OF
THE TAX COURT ONLY WHEN THEY ANNOUNCE A RULE OF GENERAL APPLICABILITY,
THAT THE FACTS FOUND FALL SHORT OF MEETING STATUTORY REQUIREMENTS. 
DOBSON V. COMMISSIONER, SUPRA, 502; COMMISSIONER V. ESTATE OF BEDFORD,
ANTE, P. 283; CF. PAUL, "DOBSON V. COMMISSIONER," 57 HARV. LAW REV.
753, AT 828-832, 836-837.  BUT WHETHER THE APPLICABLE STATUTES AND
REGULATIONS ARE SUCH AS TO PRECLUDE THE DECISION WHICH THE TAX COURT
HAS RENDERED, IS, AS WAS RECOGNIZED IN DOBSON V. COMMISSIONER, SUPRA,
492-493, A QUESTION OF LAW REVIEWABLE ON APPEAL.  SEE ALSO COMMISSIONER
V. HEININGER, SUPRA, 475. 

HERE THE DECISION OF THE COURT OF APPEALS WAS THAT THE EXPENSES WERE
NOT DEDUCTIBLE BECAUSE THEY WERE NOT FOR THE PURPOSE OF PRODUCING
INCOME OR CAPITAL GAIN, AND BECAUSE THE TRUST PROPERTY, BEING READY FOR
DISTRIBUTION, WAS NO LONGER HELD FOR THE PRODUCTION OF INCOME.  THE
TERMS OF THE TRUST, THE NATURE OF THE PROPERTY, AND THE DUTIES OF THE
TRUSTEES WITH RESPECT TO IT, WERE ALL FOUND BY THE TAX COURT AND ARE
NOT CHALLENGED.  THE QUESTIONS WHETHER, ON THE FACTS FOUND, THE
EXPENSES IN QUESTION ARE NONDEDUCTIBLE, EITHER BECAUSE THEY WERE NOT TO
PRODUCE INCOME OR BECAUSE THEY WERE RELATED TO THE MANAGEMENT OF
PROPERTY WHICH WAS NOT HELD FOR THE PRODUCTION OF INCOME, TURN IN THIS
CASE ON THE MEANING OF THE WORDS OF SEC. 23(A)(2), "PROPERTY HELD FOR
THE PRODUCTION OF INCOME."  THEY ARE THEREFORE QUESTIONS OF LAW,
DECISION OF WHICH IS UNEMBARRASSED BY ANY DISPUTED QUESTION OF FACT OR
ANY NECESSITY TO DRAW AN INFERENCE OF FACT FROM THE BASIC FINDINGS. 
SEE COMMISSIONER V. SCOTTISH AMERICAN INVESTMENT CO., SUPRA.  THEY ARE
"CLEAR CUT" QUESTIONS OF LAW, DECISION OF WHICH BY THE TAX COURT DOES
NOT FORECLOSE THEIR DECISION BY APPELLATE COURTS, AS IN OTHER CASES,
DOBSON V. COMMISSIONER, SUPRA, 492-493, ALTHOUGH THEIR DECISION BY THE
TAX COURT IS ENTITLED TO GREAT WEIGHT.  DOBSON V. COMMISSIONER, SUPRA,
501-502, AND CASES CITED; CF. MEDO PHOTO SUPPLY CORP. V. LABOR BOARD,
321 U.S. 678, 681-682, N. 1, AND CASES CITED. 

SINCE OUR DECISION IN THE DOBSON CASE WE HAVE FREQUENTLY REEXAMINED,
AS MATTERS OF LAW, DETERMINATIONS BY THE TAX COURT OF THE MEANING OF
THE WORDS OF A STATUTE AS APPLIED TO FACTS FOUND BY THAT COURT.  FN1  A
QUESTION OF LAW IS NOT ANY THE LESS SUCH BECAUSE THE TAX COURT'S
DECISION OF IT IS RIGHT RATHER THAN WRONG.  WHETHER OR NOT ITS DECISION
IS "IN ACCORDANCE WITH LAW" IS A QUESTION WHICH THE STATUTE, INT. REV.
CODE, SEC. 1141(C)(1), EXPRESSLY MAKES SUBJECT TO APPELLATE REVIEW. 
CONGRESS, WHEN IT THUS AUTHORIZED REVIEW OF QUESTIONS OF LAW ONLY, WAS
NOT UNAWARE OF THE DIFFICULTIES OF SUCH A REVIEW OF THE DECISIONS OF A
TRIBUNAL WHICH DECIDES QUESTIONS BOTH OF LAW AND OF FACT.  BUT CONGRESS
DID NOT DISPENSE WITH SUCH REVIEW. 

HENCE THE STATUTE DOES NOT LEAVE THE TAX COURT AS THE FINAL ARBITER
OF THE ISSUE WHETHER ITS OWN DECISIONS OF QUESTIONS OF LAW ARE RIGHT OR
WRONG.  THAT CAN ONLY BE ASCERTAINED UPON RESORT TO THE PRESCRIBED
APPELLATE PROCESS BY A CONSIDERATION OF THE MERITS OF THE POINT OF LAW
INVOLVED, AND BY ITS DECISION AT THE CONCLUSION OF THE PROCESS, NOT
BEFORE IT BEGINS.  THE FACT THAT THE COURT OF APPEALS BELOW, WHILE
ACCEPTING THE TAX COURT'S FINDINGS OF FACT, HAS NEVERTHELESS REVERSED
ITS DECISION, WOULD SEEM NOT TO LEAVE THE QUESTION OF LAW DECIDED SO
FREE FROM DOUBT THAT THE MANDATE OF THE STATUTE COULD RIGHTLY BE
DISREGARDED ON ANY THEORY.  IF REVIEW WERE TO BE DENIED IN THIS CASE,
IT WOULD BE DIFFICULT TO SAY THAT ANY CONSTRUCTION OF A TAXING STATUTE
BY THE TAX COURT WOULD BE SUBJECT TO APPELLATE REVIEW. 

WE TURN TO THE FIRST GROUND FOR REVERSAL RELIED ON BY THE COURT OF
APPEALS, THAT THE PROPERTY WAS HELD FOR DISTRIBUTION, AND NO LONGER FOR
THE PRODUCTION OF INCOME.  THE FACT THAT THE TRUSTEES, IN THE
ADMINISTRATION OF THE TRUST, WERE REQUIRED TO INVEST ITS CORPUS FOR THE
PRODUCTION OF INCOME AND TO DEVOTE THE INCOME TO THE PURPOSES OF THE
TRUST, ESTABLISHES, AS THE TAX COURT HELD, THAT THE TRUST PROPERTY WAS
HELD FOR THE PRODUCTION OF INCOME DURING THE STATED TERM OF THE TRUST. 
THE DECISIVE QUESTION IS WHETHER THE PROPERTY CEASED TO BE HELD FOR THE
PRODUCTION OF INCOME BECAUSE, AS THE TRUST TERM REACHED ITS EXPIRY
DATE, THE TRUSTEES WERE UNDER A DUTY TO DISTRIBUTE THE PROPERTY AMONG
THE REMAINDERMEN. 

IT IS TRUE THAT EXPIRATION OF THE TRUST OPERATED TO CHANGE THE
BENEFICIARIES ENTITLED TO RECEIVE THE INCOME OF THE TRUST PROPERTY,
FROM THOSE ENTITLED TO THE INCOME DURING THE TERM OF THE TRUST TO THE
REMAINDERMEN.  BUT THE DUTY OF THE TRUSTEES TO HOLD AND CONSERVE THE
TRUST PROPERTY, AND UNTIL DISTRIBUTION, TO RECEIVE INCOME FROM IT,
CONTINUED.  THE PROPERTY DID NOT CEASE TO BE HELD FOR THE PRODUCTION OF
INCOME BECAUSE, UPON THE EXPIRATION OF THE TRUST AND UNTIL
DISTRIBUTION, THE TRUSTEES WERE UNDER AN ADDITIONAL DUTY TO DISTRIBUTE
THE TRUST FUND, OR BECAUSE THE TRUSTEES, UPON DISTRIBUTION, WERE THEN
ACCOUNTABLE TO NEW AND DIFFERENT BENEFICIARIES, THE RESIDUARY LEGATEES,
BOTH FOR THE PRINCIPAL OF THE FUND AND ANY INCOME ACCUMULATING AFTER
THE EXPIRY DATE.  TO EXCLUDE FROM THE DEDUCTION PRIVILEGE, EXPENSES
WHICH THE TAX COURT HAS HELD TO BE EXPENSES OF MANAGEMENT OF THE TRUST,
ON THE GROUND THAT THE TRUST FUND, UPON THE EXPIRATION OF THE TRUST,
CEASED TO BE "HELD FOR THE PRODUCTION OF THE INCOME" WOULD BE TO
DISREGARD THE TAX COURT'S FINDINGS OF FACT AND THE WORDS OF THE
STATUTE, AND WOULD DEFEAT ITS OBVIOUS PURPOSE. 

NOR IS THERE MERIT IN THE COURT'S CONCLUSION THAT THE EXPENSES WERE
NOT DEDUCTIBLE BECAUSE THEY WERE NOT FOR THE PRODUCTION OF INCOME. 
THE PRODUCTION  ...  OF INCOME" AND EXPENSES OF "MANAGEMENT,
CONSERVATION, OR MAINTENANCE OF PROPERTY HELD FOR THE PRODUCTION OF
INCOME."  TO READ THIS SECTION AS REQUIRING THAT EXPENSES BE PAID FOR
THE PRODUCTION OF INCOME IN ORDER TO BE DEDUCTIBLE, IS TO MAKE
UNNECESSARY AND TO READ OUT OF THE SECTION THE PROVISION FOR THE
DEDUCTION OF EXPENSES OF MANAGEMENT OF PROPERTY HELD FOR THE PRODUCTION
OF INCOME. 

THERE IS NO WARRANT FOR SUCH A CONSTRUCTION.  SECTION 23(A)(2) IS
COMPARABLE AND IN PARI MATERIA WITH SEC. 23(A)(1), AUTHORIZING THE
DEDUCTION OF BUSINESS OR TRADE EXPENSES.  SUCH EXPENSES NEED NOT RELATE
DIRECTLY TO THE PRODUCTION OF INCOME FOR THE BUSINESS.  IT IS ENOUGH
THAT THE EXPENSE, IF "ORDINARY AND NECESSARY," IS DIRECTLY CONNECTED
WITH OR PROXIMATELY RESULTS FROM THE CONDUCT OF THE BUSINESS. 
KORNHAUSER V. UNITED STATES, SUPRA, 152-153; COMMISSIONER V. HEININGER,
SUPRA, 470-471.  THE EFFECT OF SEC. 23(A)(2) WAS TO PROVIDE FOR A CLASS
OF NON-BUSINESS DEDUCTIONS COEXTENSIVE WITH THE BUSINESS DEDUCTIONS
ALLOWED BY SEC. 23(A)(1), EXCEPT FOR THE FACT THAT, SINCE THEY WERE NOT
INCURRED IN CONNECTION WITH A BUSINESS, THE SECTION MADE IT NECESSARY
THAT THEY BE INCURRED FOR THE PRODUCTION OF INCOME OR IN THE MANAGEMENT
OR CONSERVATION OF PROPERTY HELD FOR THE PRODUCTION OF INCOME. 
MCDONALD V. COMMISSIONER, SUPRA, 61-62, 66; AND SEE H. REP. NO. 2333,
77TH CONG., 2D SESS., PP. 46, 74-76; S. REP. NO. 1631, 77TH CONG., 2D
SESS., PP. 87-88. 

SINCE THERE IS NO REQUIREMENT THAT BUSINESS EXPENSES BE FOR THE
PRODUCTION OF INCOME, THERE IS NO REASON FOR THAT REQUIREMENT IN THE
CASE OF LIKE EXPENSES OF MANAGING A TRUST, SO LONG AS THEY ARE IN
CONNECTION WITH THE MANAGEMENT OF PROPERTY WHICH IS HELD FOR THE
PRODUCTION OF INCOME.  SECTION 23(A)(2) THUS TREATS THE TRUST AS AN
ENTITY FOR PRODUCING INCOME COMPARABLE TO A BUSINESS ENTERPRISE, AND
LIKE SEC. 23(A)(1) PERMITS DEDUCTIONS OF MANAGEMENT EXPENSES OF THE
TRUST, EVEN THOUGH THE PARTICULAR EXPENSE WAS NOT AN EXPENSE DIRECTLY
PRODUCING INCOME.  IT FOLLOWS THAT ALL OF THE ITEMS OF EXPENSE HERE IN
QUESTION ARE DEDUCTIBLE IF, AS THE TAX COURT HAS HELD, THEY ARE
EXPENSES OF MANAGEMENT OR CONSERVATION OF THE TRUST FUND, WHETHER THEIR
EXPENDITURE DID OR DID NOT RESULT IN THE PRODUCTION OF INCOME. 

THE GOVERNMENT CONTENDS THAT THE EXPENSES INCURRED IN CONNECTION WITH
THE DISTRIBUTION OF THE CORPUS OF THE TRUST TO LEGATEES ARE NOT
DEDUCTIBLE, BECAUSE THEY ARE NOT EXPENSES OF MANAGING INCOME PRODUCING
PROPERTY, BUT EXPENSES IN CONNECTION WITH THE DEVOLUTION OF THE
PROPERTY.  IF THE SUGGESTION IS CORRECT, IT WOULD FOLLOW THAT EXPENSES
INCURRED IN DISTRIBUTING THE INCOME OF THE TRUST TO THE INCOME
BENEFICIARIES ARE LIKEWISE NOT DEDUCTIBLE, SINCE THE DISTRIBUTION OF
INCOME IS ALSO A DEVOLUTION OF TRUST PROPERTY.  BUT THE DUTIES OF THE
TRUSTEES WERE NOT ONLY TO HOLD THE PROPERTY FOR THE PRODUCTION OF
INCOME AND TO COLLECT THE INCOME, BUT ALSO, IN ADMINISTERING THE TRUST,
TO DISTRIBUTE THE INCOME AND THE PRINCIPAL SO HELD FROM TIME TO TIME,
AND THE REMAINDER OF THE PRINCIPAL AT THE EXPIRATION OF THE TRUST. 
PERFORMANCE OF EACH OF THESE DUTIES IS AN INTEGRAL PART OF CARRYING OUT
THE TRUST ENTERPRISE.  ACCORDINGLY, AS THE TAX COURT HELD, THE COSTS OF
DISTRIBUTION HERE WERE QUITE AS MUCH EXPENSES OF A FUNCTION OF
"MANAGEMENT" OF THE TRUST PROPERTY AS WERE EXPENSES INCURRED IN
PRODUCING THE TRUST INCOME; AND IF "ORDINARY AND NECESSARY," THEY WERE
DEDUCTIBLE. 

IN SUPPORT OF ITS CONTENTION, THE GOVERNMENT RELIES UPON A PART OF
THE HOUSE COMMITTEE REPORT, ACCOMPANYING THE BILL WHICH BECAME THE
REVENUE ACT OF 1942, SEE H. REP. NO. 2333, 77TH CONG., 2D SESS., P. 75,
AND UPON TREAS. REGS. 103, SEC. 19.23(A)-15, NEITHER OF WHICH WAS
MENTIONED BY THE COURT OF APPEALS.  THEY STATE THAT AN ADMINISTRATOR OR
EXECUTOR MAY NOT DEDUCT EXPENSES INCURRED IN THE ADMINISTRATION OF THE
ESTATE OF A DECEDENT, INCLUDING THOSE OF DISTRIBUTING ASSETS TO THE
BENEFICIARIES.  IT IS ARGUED THAT BY ANALOGY LIKE EXPENSES OF TRUSTEES
SHOULD NOT BE DEDUCTIBLE.  BUT IT IS TO BE NOTED THAT THERE IS NO SUCH
STATEMENT IN THE REPORT OR REGULATIONS AS TO THE DISTRIBUTION EXPENSES
OF TRUSTEES.  ON THE CONTRARY, THE REGULATIONS, SEC. 19.23(A)-15, IN
DEALING SPECIFICALLY WITH EXPENSES OF TRUSTEES, PROVIDES ONLY THAT
THEIR EXPENSES OF MANAGEMENT AND CONSERVATION OF THE TRUST PROPERTY
HELD FOR THE PRODUCTION OF INCOME ARE DEDUCTIBLE.  AND THE REFERENCES
IN THE REPORT TO THE NON-DEDUCTIBILITY OF EXPENSES OF ADMINISTRATORS
AND EXECUTORS WERE IN EXPLANATION OF THE CONGRESSIONAL PURPOSE TO
PREVENT THE SPECIFIED ADMINISTRATION EXPENSES FROM BEING DEDUCTIBLE
BOTH FOR INCOME AND ESTATE TAXATION.  TO ACCOMPLISH THAT PURPOSE THE
REPORT RECOMMENDED AN AMENDMENT, WHICH BECAME SEC. 161(A) OF THE
REVENUE ACT OF 1942, ADDING SEC. 162(E) TO THE INTERNAL REVENUE CODE. 
ALLOWABLE UNDER SEC. 812(B) AS A DEDUCTION IN COMPUTING THE NET ESTATE
OF A DECEDENT SHALL NOT BE ALLOWED AS A DEDUCTION UNDER SEC. 23." 
HERE, AS THE TAX COURT FOUND, THERE IS NO POSSIBILITY OF SUCH A DOUBLE
DEDUCTION, SINCE THE EXPENSES WERE NOT DEDUCTIBLE UNDER THE DECEDENT'S
ESTATE TAX RETURN. 

WHAT WE HAVE SAID APPLIES WITH EQUAL FORCE TO THE EXPENSES OF
CONTESTING THE TAX DEFICIENCY.  SECTION 23(A)(2) DOES NOT RESTRICT
DEDUCTIONS TO THOSE LITIGATION EXPENSES WHICH ALONE PRODUCE INCOME.  ON
THE CONTRARY, BY ITS TERMS AND IN ANALOGY WITH THE RULE UNDER SEC.
23(A)(1), THE BUSINESS EXPENSE SECTION, THE TRUST, A TAXABLE ENTITY
LIKE A BUSINESS, MAY DEDUCT LITIGATION EXPENSES WHEN THEY ARE DIRECTLY
CONNECTED WITH OR PROXIMATELY RESULT FROM THE ENTERPRISE - THE
MANAGEMENT OF PROPERTY HELD FOR PRODUCTION OF INCOME.  KORNHAUSER V.
UNITED STATES, SUPRA, 152-153; COMMISSIONER V. HEININGER, SUPRA, 470
471.  THE TAX COURT COULD FIND AS A MATTER OF FACT, AS IT DID, THAT THE
EXPENSES OF CONTESTING THE INCOME TAXES WERE A PROXIMATE RESULT OF THE
HOLDING OF THE PROPERTY FOR INCOME.  AND WE CANNOT SAY, AS A MATTER OF
LAW, THAT SUCH EXPENSES ARE ANY LESS DEDUCTIBLE THAN EXPENSES OF SUITS
TO RECOVER INCOME.  CF. COMMISSIONER V. HEININGER, SUPRA. 

THE GOVERNMENT RELIES ON TREAS. REGS. 103, SEC. 19.23(A)-15, WHICH
PROVIDE THAT "EXPENDITURES INCURRED  ...  FOR THE PURPOSE OF RECOVERING
TAXES (OTHER THAN RECOVERIES REQUIRED TO BE INCLUDED IN INCOME), OR FOR
THE PURPOSE OF RESISTING A PROPOSED ADDITIONAL ASSESSMENT OF TAXES
(OTHER THAN TAXES ON PROPERTY HELD FOR THE PRODUCTION OF INCOME) ARE
NOT DEDUCTIBLE EXPENSES UNDER THIS SECTION (SEC. 23(A)(2) OF THE CODE),
EXCEPT THAT PART THEREOF WHICH THE TAXPAYER CLEARLY SHOWS TO BE
PROPERLY ALLOCABLE TO THE RECOVERY OF INTEREST REQUIRED TO BE INCLUDED
IN INCOME."  SO FAR AS THIS REGULATION PURPORTS TO DENY DEDUCTION OF
LITIGATION EXPENSE UNLESS IT IS TO PRODUCE INCOME, IT IS NOT IN
CONFORMITY TO THE STATUTE, FOR THE REASONS ALREADY STATED, OR WITH THE
REGULATION ALREADY MENTIONED, WHICH PROVIDES THAT IN ADDITION TO
EXPENSES FOR THE PRODUCTION OR COLLECTION OF TRUST INCOME, EXPENSES OF
MANAGEMENT OR CONSERVATION OF TRUST PROPERTY HELD FOR THE PRODUCTION OF
INCOME ARE ALSO DEDUCTIBLE.  TO THAT EXTENT AND TO THE EXTENT THAT IT
DEPARTS FROM THE RULE OF KORNHAUSER V. UNITED STATES, SUPRA, IT
CONFLICTS WITH THE MEANING AND PURPOSE OF SEC. 23(A)(2), AND SO IS
UNAUTHORIZED.  HELVERING V. REYNOLDS TOBACCO CO., 306 U.S. 110. 

WE FIND NO ERROR OF LAW IN THE JUDGMENT OF THE TAX COURT.  ITS
JUDGMENT WILL BE AFFIRMED AND THAT OF THE COURT OF APPEALS REVERSED. 
REVERSED. 

FN1  SEE, E.G., SECURITY MILLS CO. V. COMMISSIONER, 321 U.S. 281,
286; DOUGLAS V. COMMISSIONER, 322 U.S. 275; COMMISSIONER V. HARMON, 323
U.S. 44; MCDONALD V. COMMISSIONER, 323 U.S. 57; CLARIDGE APARTMENTS CO.
V. COMMISSIONER, 323 U.S. 141, 145; FONDREN V. COMMISSIONER, 324 U.S.
18; CHOATE V. COMMISSIONER, 324 U.S. 1; COMMISSIONER V. ESTATE OF
FIELD, 324 U.S. 113; WEBRE STEIB CO. V. COMMISSIONER, 324 U.S. 164;
COMMISSIONER V. SMITH, 324 U.S. 177; COMMISSIONER V. WEMYSS, 324 U.S.
303; COMMISSIONER V. WHEELER, 324 U.S. 542; ESTATE OF PUTNAM V.
COMMISSIONER, 324 U.S. 393; ANGELUS MILLING CO. V. COMMISSIONER, ANTE,
P. 293; COMMISSIONER V. ESTATE OF BEDFORD, ANTE, P. 283; COMMISSIONER
V. DISSTON, POST, P. 442. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THIS IS ONE OF THOSE CASES IN WHICH THE GROUND OF THE DECISION IS
MORE IMPORTANT THAN THE DECISION ITSELF, EXCEPT TO THE PARTIES.  AND
SO, WHILE I CONCUR IN THE RESULT, I FEEL BOUND TO SAY THAT I THINK THE
MANNER IN WHICH IT IS REACHED IS CALCULATED TO INCREASE THE ALREADY
AMPLE DIFFICULTIES IN JUDICIAL REVIEW OF TAX COURT DETERMINATIONS.  THE
COURSE OF OUR DECISIONS SINCE DOBSON V. COMMISSIONER, 320 U.S. 489,
CALLS FOR CLARIFICATION AND AVOIDANCE OF FURTHER CONFUSION. 

IN DOBSON V. COMMISSIONER, SUPRA, THIS COURT ELABORATELY CONSIDERED
THE SPECIAL FUNCTION OF THE TAX COURT AND THE VERY LIMITED FUNCTIONS OF
THE CIRCUIT COURTS OF APPEALS AND OF THIS COURT IN REVIEWING THE TAX
COURT.  THE UNANIMOUS OPINION IN THE DOBSON CASE WAS SURELY A CASE OF
MUCH ADO ABOUT NOTHING, IF IT DID NOT EMPHASIZE THE VAST RANGE OF
QUESTIONS AS TO WHICH THE TAX COURT SHOULD HAVE THE FINAL SAY.  IN
MAKING THE DOBSON PRONOUNCEMENT, THE COURT WAS NOT UNAWARE THAT
"QUESTIONS OF FACT" AND "QUESTIONS OF LAW" WERE LEGAL CONCEPTS AROUND
WHICH DIALECTIC CONFLICTS HAVE BEEN FOUGHT TIME OUT OF MIND.  THE
DOBSON OPINION TOOK FOR GRANTED THAT THEY ARE USEFUL INSTRUMENTS OF
THOUGHT EVEN THOUGH NOT AMENABLE TO FIXED CONNOTATIONS.  THE TERMS ARE
UNMANAGEABLE AND TOO CONFUSING IF IT BE ASSUMED THAT UNLESS THEY HAVE
INVARIANT MEANING, THAT IS, UNLESS THEY SERVE THE SAME PURPOSE FOR
EVERY LEGAL PROBLEM IN WHICH THEY ARE INVOKED, THEY CAN SERVE NO
PURPOSE FOR ANY PROBLEM.  THE CONTRIBUTION OF THE DOBSON CASE, ONE HAD
A RIGHT TO BELIEVE, WAS THE RESTRICTION OF REVIEWABLE "QUESTIONS OF
LAW" IN TAX LITIGATION TO ISSUES APPROPRIATE FOR REVIEW IN RELATION TO
THE MACHINERY WHICH CONGRESS HAS DESIGNED FOR SUCH LITIGATION.  THE
DOBSON CASE ESCHEWED STERILE ATTEMPTS AT DIFFERENTIATION BETWEEN "FACT"
AND "LAW" IN THE ABSTRACT.  INSTEAD, IT FOUND SIGNIFICANCE IN THE
SCHEME DEVISED BY CONGRESS FOR ADJUDICATING TAX CONTROVERSIES WHEREBY
CONGRESS HAD, IN THE MAIN, CENTRALIZED IN THE TAX COURT REVIEW OF TAX
DETERMINATIONS BY THE TREASURY AND HAD MADE THE DECISIONS OF THE TAX
COURT FINAL UNLESS THEY WERE "NOT IN ACCORDANCE WITH LAW," 44 STAT. 9,
110, 26 U.S.C. SEC. 1141(C)(1), WITH THE RESULT THAT, AS A PRACTICAL
MATTER, ONLY A SMALL PERCENTAGE OF TAX COURT DECISIONS GETS INTO THE
CIRCUIT COURTS OF APPEALS, AND A STILL SMALLER PERCENTAGE REACHES THIS
COURT.  FN1  THEREFORE, THE DECISIONS OF THE CIRCUIT COURTS OF APPEALS,
AND EVEN MORE SO OF THIS COURT, ARE BOUND TO BE MORE OR LESS EPISODIC
AND DEPENDENT UPON CONTINGENCIES THAT CANNOT GIVE THESE APPELLATE
COURTS THAT FEEL OF THE EXPERT WHICH IS SO IMPORTANT FOR WISE
CONSTRUCTION OF SUCH INTERRELATED AND COMPLICATED ENACTMENTS AS THOSE
WHICH CONSTITUTE OUR REVENUE LAWS.  THESE FACTORS, SO DECISIVE IN THE
STREAM OF TAX LITIGATION, WEIGH HEAVILY IN APPORTIONING FUNCTIONS
BETWEEN THE TAX COURT AND THE COURTS REVIEWING THE TAX COURT. 
ACCORDINGLY, THE VITAL GUIDANCE OF THE DOBSON OPINION WAS THAT A
DECISION OF THE TAX COURT SHOULD STAND UNLESS IT INVOLVES "A CLEAR-CUT
MISTAKE OF LAW," 320 U.S. 489, 502.  CONSIDERATIONS THAT MAY PROPERLY
GOVERN WHAT ARE TO BE DEEMED QUESTIONS OF FACT AND QUESTIONS OF LAW AS
BETWEEN JUDGE AND JURY, OR CONSIDERATIONS RELEVANT TO THE DRAWING OF A
LINE BETWEEN QUESTIONS OF FACT AND QUESTIONS OF LAW ON APPEAL FROM A
COURT OF FIRST INSTANCE SITTING WITHOUT A JURY, OR IN DETERMINING WHAT
IS A FORECLOSED QUESTION OF FACT IN CASES COMING TO THIS COURT FROM
STATE COURTS ON CLAIMS OF UNCONSTITUTIONALITY, MAY BE QUITE MISLEADING
WHEN A DECISION OF THE TAX COURT IS CHALLENGED IN THE VARIOUS CIRCUIT
COURTS OF APPEALS OR HERE AS "NOT IN ACCORDANCE WITH LAW." 

CERTAINLY, ALL DISPUTED QUESTIONS REGARDING EVENTS AND CIRCUMSTANCES
THE RAW MATERIALS, AS IT WERE, OF SITUATIONS WHICH GIVE RISE TO TAX
CONTROVERSIES - ARE FOR THE TAX COURT TO SETTLE AND DEFINITIVELY SO.
SECONDLY, THERE ARE QUESTIONS THAT DO NOT INVOLVE DISPUTES AS TO WHAT
REALLY HAPPENED - AS, FOR INSTANCE, WHAT EXPENSES WERE INCURRED OR WHAT
DISTRIBUTION OF ASSETS WAS MADE - BUT INSTEAD TURN ON THE MEANING OF
WHAT HAPPENED AS A MATTER OF BUSINESS PRACTICE OR BUSINESS RELEVANCE. 
HERE WE ARE IN THE DOMAIN OF FINANCIAL AND BUSINESS INTERPRETATION IN
RELATION TO TAXATION AS TO WHICH THE TAX COURT PRESUMABLY IS AS WELL
INFORMED BY EXPERIENCE AS ARE THE APPELLATE JUDGES AND CERTAINLY MORE
FREQUENTLY ENLIGHTENED BY THE VOLUME AND RANGE OF ITS LITIGATION.  SUCH
ISSUES BRING US TREACHEROUSLY NEAR TO WHAT ABSTRACTLY ARE USUALLY
CHARACTERIZED AS QUESTIONS OF LAW, WHETHER THE QUESTION OF DIVISION OF
LABOR IN A LITIGATION IS BETWEEN JUDGES AND LAY JURIES, OR BETWEEN
JUDGES OF FIRST INSTANCE AND OF APPELLATE COURTS WHEN THERE IS NO
DIFFERENCE OF SPECIALIZED EXPERIENCE BETWEEN THE TWO CLASSES OF
JUDGES.  THUS, THE CONSTRUCTION OF DOCUMENTS HAS FOR HISTORIC REASONS
BEEN DEEMED TO BE A QUESTION OF LAW IN THE SENSE THAT THE MEANING IS TO
BE GIVEN BY JUDGES AND NOT BY LAYMEN.  BUT THIS CRUDE DIVISION BETWEEN
WHAT IS "LAW" AND WHAT IS "FACT" IS NOT RELEVANT TO THE PROPER
DEMARCATION OF FUNCTIONS AS BETWEEN THE TAX COURT AND THE REVIEWING
COURTS.  TO HOLD THAT THE CIRCUIT COURTS OF APPEALS, AND EVENTUALLY
THIS COURT, MUST MAKE AN INDEPENDENT EXAMINATION OF THE MEANING OF
EVERY WORD OF TAX LEGISLATION, NO MATTER WHETHER THE WORDS EXPRESS
ACCOUNTING, BUSINESS OR OTHER CONCEPTIONS PECULIARLY WITHIN THE SPECIAL
COMPETENCE OF THE TAX COURT, IS TO SACRIFICE THE EFFECTIVENESS OF THE
JUDICIAL SCHEME DESIGNED BY CONGRESS ESPECIALLY FOR TAX LITIGATION TO
AN ABSTRACT NOTION OF "LAW" DERIVED FROM THE MERELY HISTORIC FUNCTION
OF COURTS GENERALLY TO CONSTRUE DOCUMENTS, INCLUDING LEGISLATION.  MORE
THAN THAT.  IF THE APPELLATE COURTS MUST MAKE AN INDEPENDENT
EXAMINATION OF THE MEANING OF EVERY WORD IN TAX LEGISLATION, ON THE
ASSUMPTION THAT THE CONSTRUCTION OF LEGISLATIVE LANGUAGE IS NECESSARILY
FOR THE APPELLATE COURTS, HOW CAN THEY REASONABLY REFUSE TO CONSIDER
CLAIMS THAT THE WORDS HAVE BEEN MISAPPLIED IN THE CIRCUMSTANCES OF A
PARTICULAR CASE?  MEANING DERIVES VITALITY FROM APPLICATION.  MEANING
IS EASILY THWARTED OR DISTORTED BY MISAPPLICATION.  IF THE APPELLATE
COURTS ARE CHARGED WITH THE DUTY OF GIVING MEANING TO WORDS BECAUSE
THEY ARE CONTAINED IN TAX LEGISLATION, THEY EQUALLY CANNOT ESCAPE THE
DUTY OF EXAMINING INDEPENDENTLY WHETHER A PROPER APPLICATION HAS BEEN
GIVEN BY THE TAX COURT.    THE SPECIALIZED EQUIPMENT OF THE TAX COURT
AND THE TRAINED INSTINCT THAT COMES FROM ITS EXPERIENCE OUGHT TO LEAVE
WITH THE TAX COURT THE FINAL SAY ALSO AS TO MATTERS WHICH INVOLVE
CONSTRUCTION OF LEGAL DOCUMENTS AND THE APPLICATION OF LEGISLATION EVEN
THOUGH THE PROCESS MAY BE EXPRESSED IN GENERAL PROPOSITIONS, SO LONG AS
THE TAX COURT HAS NOT COMMITTED WHAT WAS CHARACTERIZED IN THE DOBSON
CASE AS A "CLEAR-CUT MISTAKE OF LAW." 

THAT SERVES AS A GUIDE FOR JUDGMENT EVEN THOUGH NO INCLUSIVE
DEFINITION OR CATALOGUE IS ESSAYED.  THE TAX COURT OF COURSE MUST
CONFORM TO THE PROCEDURAL REQUIREMENTS WHICH THE CONSTITUTION AND THE
LAWS OF CONGRESS COMMAND.  LIKEWISE, IN APPLYING THE PROVISIONS OF THE
REVENUE LAWS, THE TAX COURT MUST KEEP WITHIN WHAT MAY BROADLY BE CALLED
THE OUTWARD LIMITS OF CATEGORIES AND CLASSIFICATIONS EXPRESSING
LEGISLATIVE POLICY.  CONGRESS HAS INVESTED THE TAX COURT WITH PRIMARY -
AND LARGELY WITH ULTIMATE - AUTHORITY FOR REDETERMINING DEFICIENCIES. 
IT IS A TRIBUNAL TO WHICH MASTERY IN TAX MATTERS MUST BE ATTRIBUTED. 
THE AUTHORITY WHICH CONGRESS HAS THUS GIVEN THE TAX COURT INVOLVES THE
DETERMINATION OF WHAT REALLY HAPPENED IN A SITUATION AND WHAT IT MEANS
IN THE TAXING WORLD.  IN ORDER TO REDETERMINE DEFICIENCIES THE TAX
COURT MUST APPLY TECHNICAL LEGAL PRINCIPLES.  THE INTERPRETATION OF TAX
STATUTES AND THEIR APPLICATION TO PARTICULAR CIRCUMSTANCES ARE ALL
MATTERS PECULIARLY WITHIN THE COMPETENCE OF THE TAX COURT.  ON THE
OTHER HAND, CONSTITUTIONAL ADJUDICATION, DETERMINATION OF LOCAL LAW
QUESTIONS AND COMMON LAW RULES OF PROPERTY, SUCH AS THE MEANING OF A
"GENERAL POWER OF APPOINTMENT" OR THE APPLICATION OF THE RULE AGAINST
PERPETUITIES, ARE OUTSIDE THE SPECIAL PROVINCE OF THE TAX COURT.  SEE
PAUL, DOBSON V. COMMISSIONER:  THE STRANGE WAYS OF LAW AND FACT (1944)
57 HARV. L. REV. 753, 847-48.  CONGRESS DID NOT AUTHORIZE REVIEW OF ALL
LEGAL QUESTIONS UPON WHICH THE TAX COURT PASSED.  IT MERELY ALLOWED
MODIFICATION OR REVERSAL IF THE DECISION OF THE TAX COURT IS "NOT IN
ACCORDANCE WITH LAW."  BUT IF A STATUTE UPON WHICH THE TAX COURT
UNMISTAKABLY HAS TO PASS ALLOWS THE TAX COURT'S APPLICATION OF THE LAW
TO THE SITUATION BEFORE IT AS A REASONABLE ONE - IF THE SITUATION
COULD, WITHOUT VIOLENCE TO LANGUAGE, BE BROUGHT WITHIN THE TERMS UNDER
WHICH THE TAX COURT PLACED IT OR BE KEPT OUT OF THE TERMS FROM WHICH
THAT COURT KEPT IT - THE TAX COURT CANNOT IN REASON BE SAID TO HAVE
ACTED "NOT IN ACCORDANCE WITH LAW."  IN SHORT, THERE WAS NO "CLEAR-CUT
MISTAKE OF LAW" BUT A FAIR ADMINISTRATION OF IT. 

IF THESE CONSIDERATIONS ARE TO PREVAIL, THE SOLE QUESTION BEFORE A
CIRCUIT COURT OF APPEALS IS WHETHER THE DECISION BY THE TAX COURT
PRESENTS A "CLEAR-CUT MISTAKE OF LAW."  THERE SHOULD BE AN END OF THE
MATTER ONCE IT IS ADMITTED THAT THE APPLICATION MADE BY THE TAX COURT
WAS AN ALLOWABLE ONE.  IF A QUESTION BECOMES A REVIEWABLE QUESTION IN
TAX CASES BECAUSE, ABSTRACTLY CONSIDERED, IT MAY BE CAST INTO A "PURE
QUESTION OF LAW," IT WOULD REQUIRE NO GREAT DIALECTICAL SKILL TO THROW
MOST EQUESTIONS WHICH ARE APPEALED FROM THE TAX COURT INTO QUESTIONS OF
LAW INDEPENDENTLY REVIEWABLE BY THE CIRCUIT COURTS OF APPEALS.  THE
ROAD WOULD BE OPEN TO A NEW INSISTENCE FOR INCREASED TAX REVIEWS BY
THIS COURT ON CERTIORARI.  THE INTENTION OF THE DOBSON CASE WAS
PRECISELY OTHERWISE.  IT WAS TO CENTRALIZE RESPONSIBILITY IN THE TAX
COURT, TO MINIMIZE ISOLATED INTRUSIONS BY THE CIRCUIT COURTS OF APPEALS
INTO THE TECHNICAL COMPLEXITIES OF TAX DETERMINATIONS EXCEPT WHEN THE
TAX COURT HAS CLEARLY TRANSCENDED ITS SPECIALIZED COMPETENCE, AND TO
DISCOURAGE RESORT TO THIS COURT IN TAX CASES EXCEPT WHERE CONFLICT
AMONG THE CIRCUITS OR CONSTITUTIONAL QUESTIONS OR A "CLEAR-CUT MISTAKE
OF LAW" OF REAL IMPORTANCE MAY CALL FOR OUR INTERVENTION. 

LET US APPLY THESE GOVERNING CONSIDERATIONS TO THE CASE IN HAND.  THE
TRUSTEES HERE PAID, AS EXPENSES IN CONNECTION WITH THE TRUST, CERTAIN
LEGAL FEES, AND THESE CHARGES THEY DEDUCTED FROM THE GROSS TRUST INCOME
FOR 1940.  THE COMMISSIONER DISALLOWED THESE DEDUCTIONS.  THE LEGAL
SERVICES CONCERNED (1) LITIGATION IN WHICH THE TRUSTEES UNSUCCESSFULLY
CONTESTED A DEFICIENCY CLAIM BASED ON TAXABLE GAIN TO THE ESTATE, (2)
PAYMENT OF A LEGACY, AND (3) PROBLEMS ARISING FROM THE EXPIRATION OF
THE TRUST AND THE DISPOSITION OF ITS ASSETS.  THE SOLE QUESTION BEFORE
THE TAX COURT WAS WHETHER THESE FEES AND CHANGES WERE DEDUCTIBLE AS
EXPENSES INCURRED "FOR THE MANAGEMENT, CONSERVATION, OR MAINTENANCE OF
PROPERTY HELD FOR THE PRODUCTION OF INCOME" UNDER SEC. 121(A) OF THE
REVENUE ACT OF 1942, 56 STAT. 798, 819. 

WHETHER THESE PAYMENTS CONSTITUTED EXPENSES "FOR THE MANAGEMENT  ...
OF PROPERTY HELD FOR THE PRODUCTION OF INCOME," MAY AS FAIRLY BE SAID
TO BE A QUESTION OF FACT, NAMELY, THE PURPOSE WHICH THESE PAYMENTS
SERVED WITH RELATION TO PROPERTY HELD FOR THE PRODUCTION OF INCOME, AS
IT COULD BE SAID THAT THEY INVOLVE A PROPER CONSTRUCTION OF WHAT THE
STATUTE MEANS BY "MANAGEMENT" OF SUCH PROPERTY.  THE TRUTH OF THE
MATTER IS THAT THE PROBLEM INVOLVES A JUDGMENT REGARDING THE INTERPLAY
OF BOTH QUESTIONS, NAMELY, WHAT RELATION DO THESE PAYMENTS HAVE TO WHAT
MAY PROPERLY BE DEEMED THE MANAGERIAL DUTIES OF TRUSTEES.  IT IS
POSSIBLE TO TRANSFORM EVERY SO-CALLED QUESTION OF FACT CONCERNING THE
PROPRIETY OF EXPENSES INCURRED BY TRUSTEES INTO A GENERALIZED INQUIRY
AS TO WHAT THE DUTIES OF A TRUSTEE ARE AND, THEREFORE, WHETHER A
PARTICULAR ACTIVITY SATISFIED THE CONCEPTION OF MANAGEMENT WHICH
TRUSTEESHIP DEVOLVES UPON A TRUSTEE.  SUCH A WAY OF DEALING WITH THESE
PROBLEMS INEVITABLY LEADS TO CASUISTRIES WHICH ARE TO BE AVOIDED BY A
FAIR DISTRIBUTION OF FUNCTIONS BETWEEN THE TAX COURT AND THE REVIEWING
COURTS.  THE FACT THAT THIS PROBLEM MAY BE CAST IN THE FORM OF
INTELLECTUALLY DISINTERESTED ABSTRACTIONS GOES A LONG WAY TO PROVE THAT
ITS SOLUTION SHOULD BE LEFT WITH THE TAX COURT. 

IF THE DECISION BY THE TAX COURT MAY FAIRLY BE DEEMED THAT THE
"ISSUES ARE BROADER THAN THE PARTICULAR FACTS IT CERTAINLY WOULD BE AN
ISSUE OF "FACT."  BUT EVEN ASSUMING THAT THE "ISSUES ARE BROADER THAN
THE PARTICULAR FACTS PRESENTED" BY THIS CASE, THE TAX COURT'S DECISION
IS NOT DEPRIVED OF FINALITY.  YET AN ASSUMPTION TO THE CONTRARY IS AT
THE CORE OF THE GOVERNMENT'S ARGUMENT.  SIMPLY BECAUSE THE CORRECTNESS
OF "CERTAIN GENERAL PROPOSITIONS" IS INVOLVED DOES NOT MAKE THE
POSITION TAKEN BY THE TAX COURT A QUESTION OF LAW.  THE REAL QUESTION
IS:  WHAT IS THE NATURE OF THE ISSUE UPON WHICH THE TAX COURT HAS
PRONOUNCED?  IF THE ISSUE PRESENTS A DIFFICULTY WHICH IT IS PECULIARLY
WITHIN THE COMPETENCE OF THE TAX COURT TO RESOLVE AND THAT COURT HAS
GIVEN A FAIR ANSWER, EVERY CONSIDERATION WHICH LED TO THE PRONOUNCEMENT
IN THE DOBSON CASE SHOULD PRECLUDE INDEPENDENT REEXAMINATION OF THE TAX
COURT'S DISPOSITION.  REGARDLESS OF WHAT THE QUESTION MAY BE TERMED FOR
PURPOSES OF REVIEW, THE TAX COURT'S DETERMINATION SHOULD BE ACCORDED
FINALITY.  THAT THE TAX COURT HAS EXPRESSED AN ALLOWABLE OPINION AS TO
THE MEANING AND APPLICATION OF A TAX PROVISION, HERE SEC. 121(A) OF THE
1942 REVENUE ACT, SHOULD SUFFICE TO REINSTATE ITS DECISION, WITHOUT
OPENING THE SLUICES TO INDEPENDENT REVIEW BY THE CIRCUIT COURTS OF
APPEALS AND THIS COURT OF MULTITUDINOUS TAX QUESTIONS.  SUCH IS THE
PRINCIPLE OR RULE OF JUDICIAL ADMINISTRATION WHICH SHOULD GUIDE REVIEW
OF TAX COURT DETERMINATIONS. 

FN1  AS A MATTER OF HISTORIC SURVIVAL, SOME TAX LITIGATION STILL
REACHES DISTRICT COURTS THROUGHOUT THE COUNTRY.  TO THAT EXTENT THERE
IS A QUALIFICATION UPON THE CENTRALIZATION OF REVIEW IN THE TAX COURT
OF TREASURY DETERMINATIONS.  BUT THE OVERWHELMING VOLUME OF TAX
LITIGATION GOES TO THE TAX COURT.  THE RATIO IS ABOUT 6 TO 1.  THE FACT
THAT THE DISTRICT COURTS CONTINUE TO HAVE VESTIGIAL JURISDICTION MAY
CALL FOR A SCIENTIFIC REVAMPING OF JURISDICTION IN TAX CASES.  IT DOES
NOT COUNSEL AGAINST GIVING THE FULLEST EFFICACY TO TAX COURT DECISIONS
CONSONANT WITH ITS SPECIAL RESPONSIBILITY.  SEE GRISWOLD, THE NEED FOR
A COURT OF TAX APPEALS (1944) 57 HARV. L. REV. 1153; MILLER, CAN TAX
APPEALS BE CENTRALIZED?  (1945) 23 TAXES 303. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON JOIN IN THIS CONCURRING
OPINION. 
..END :


















AMERICAN POWER CO. V. S.E.C., 325 U.S. 385 


ARGUED APRIL 26, 1945.  - DECIDED JUNE 4, 1945.  - 143 F.2D 250,
REVERSED.  - 143 F.2D 945, AFFIRMED. 


1.  UNDER SEC. 24(A) OF THE PUBLIC UTILITY HOLDING COMPANY ACT, WHICH
GRANTS A RIGHT OF REVIEW TO "ANY PERSON OR PARTY AGGRIEVED" BY AN ORDER
ISSUED BY THE SECURITIES & EXCHANGE COMMISSION UNDER THE ACT, A
STOCKHOLDER HAVING A SUBSTANTIAL FINANCIAL OR ECONOMIC INTEREST
DISTINCT FROM THAT OF THE CORPORATION, WHICH IS DIRECTLY AND ADVERSELY
AFFECTED BY AN ORDER OF THE COMMISSION, IS A "PERSON AGGRIEVED."  P.
388. 

2.  A SOLE STOCKHOLDER OF A COMPANY ORDERED BY THE SECURITIES &
EXCHANGE COMMISSION UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT TO
MAKE CERTAIN ACCOUNTING ENTRIES WHICH WOULD AFFECT ADVERSELY THE
STOCKHOLDER'S RIGHT TO DIVIDENDS, HELD ENTITLED UNDER SEC. 24(A) TO A
REVIEW OF THE ORDER AS A "PERSON AGGRIEVED."  PITTSBURGH & WEST
VIRGINIA R. CO. V. UNITED STATES, 281 U.S. 479, DISTINGUISHED.  P.
389. 

3.  WHERE REVIEW OF AN ORDER ISSUED BY THE SECURITIES & EXCHANGE
COMMISSION UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT IS APPLIED FOR
IN MORE THAN ONE CIRCUIT COURT OF APPEALS, THAT ONE IN WHICH THE
COMMISSION UNDER SEC. 24(A) FILES A TRANSCRIPT OF ITS PROCEEDINGS
THEREUPON HAS EXCLUSIVE JURISDICTION.  P. 391. 

4.  A STOCKHOLDER OWNING 9,000 OUT OF A TOTAL OF SOME 5,250,000
SHARES OF STOCK OF A CORPORATION, CHARGING ILLEGALITY AND FRAUD IN A
REFINANCING TRANSACTION BETWEEN THE CORPORATION AND A SUBSIDIARY WHICH
WOULD REDUCE THE VALUE OF HIS STOCK BY REDUCING THE INTEREST INCOME OF
HIS CORPORATION, HELD ENTITLED, UNDER SEC. 24(A), AS A "PERSON
AGGRIEVED," TO A REVIEW OF AN ORDER OF THE COMMISSION APPROVING THE
TRANSACTION.  PP. 387, 392. 

5.  IT IS NOT ESSENTIAL TO THE STOCKHOLDER'S RIGHT TO A REVIEW IN
SUCH CASE THAT THE PROCEEDING HAVE THE CHARACTER OF A DERIVATIVE SUIT. 
P. 392. 

AMERICAN POWER & LIGHT CO. V. SECURITIES & EXCHANGE COMMISSION. 

NO. 470.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST
CIRCUIT* . 

*TOGETHER WITH NO. 815, SECURITIES & EXCHANGE COMMISSION V. OKIN, ON
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 701, 324 U.S. 835, TO REVIEW, IN NO. 470, THE
DISMISSAL OF A PETITION FOR REVIEW OF AN ORDER OF THE COMMISSION; AND,
IN NO. 815, DENIALS OF MOTIONS TO DISMISS (AND TO DISMISS OR AFFIRM) A
PETITION FOR REVIEW OF AN ORDER OF THE COMMISSION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THESE CASES BECAUSE OF AN APPARENT CONFLICT
IN THE DECISIONS BELOW  FN1 CONCERNING THE APPLICATION OF SEC. 24(A) OF
THE PUBLIC UTILITY HOLDING COMPANY ACT,  FN2  WHICH PROVIDES THAT "ANY
PERSON OR PARTY AGGRIEVED BY AN ORDER ISSUED BY THE COMMISSION" UNDER
THE ACT MAY OBTAIN A REVIEW OF THE ORDER BY THE CIRCUIT COURT OF
APPEALS OF THE CIRCUIT OF HIS RESIDENCE OR PRINCIPAL PLACE OF
BUSINESS.  THE DIFFERENCE OF VIEW IS AS TO THE SCOPE OF THE PHRASE
"PERSON OR PARTY AGGRIEVED." 

IN NO. 470 IT APPEARS THAT THE PETITIONER IS A REGISTERED HOLDING
COMPANY AND OWNS ALL THE COMMON STOCK OF THE FLORIDA POWER & LIGHT
COMPANY.  THE PARAGRAPHS OF THE ORDER IN CONTROVERSY REQUIRE FLORIDA TO
MAKE CERTAIN ACCOUNTING ENTRIES WHICH WILL RESULT IN TAKING OUT OF
SURPLUS MONEYS WHICH WOULD OTHERWISE BE AVAILABLE TO PAY DIVIDENDS TO
PETITIONER.  THE ORDER INCLUDING THESE PARAGRAPHS WAS MADE AS THE
RESULT OF PROCEEDINGS BEFORE THE COMMISSION TO WHICH AMERICAN AND
FLORIDA WERE PARTIES, AND IN WHICH AMERICAN PARTICIPATED; AND THE
PROVISIONS IN CONTROVERSY APPEAR TO HAVE BEEN DRAWN WITH A VIEW THAT
THEY MIGHT BE CONTESTED APART FROM OTHER MATTERS BEFORE THE COMMISSION,
AND TO HAVE INCLUDED STATEMENTS TO THE EFFECT THAT THEY WERE MADE
WITHOUT PREJUDICE TO THE RIGHTS OF AMERICAN AND FLORIDA TO CONTEST
THEM. 

AMERICAN PETITIONED THE COURT BELOW TO SET ASIDE THE ORDER.  LATER
FLORIDA PETITIONED ANOTHER CIRCUIT COURT OF APPEALS TO SET ASIDE THE
SAME PARAGRAPH ATTACKED BY AMERICAN.  THE COMMISSION MOVED TO DISMISS
AMERICAN'S PETITION, RECITING THE FACT THAT FLORIDA HAD INSTITUTED A
SIMILAR PROCEEDING, AND ASSERTING THAT AMERICAN, AS SOLE STOCKHOLDER,
HAD NO STANDING TO SEEK REVIEW OF THE ORDER. 

IN NO. 815 IT APPEARS THAT ELECTRIC BOND & SHARE COMPANY, A
REGISTERED HOLDING COMPANY, LOANED $35,000,000 TO A SUBSIDIARY,
AMERICAN AND FOREIGN POWER COMPANY, WHICH IS ALSO A REGISTERED HOLDING
COMPANY, AND THAT THE QUESTION OF HOW THIS LOAN SHOULD BE REFINANCED
BECAME THE SUBJECT OF A PROCEEDING BEFORE THE COMMISSION. 

THE RESPONDENT, OKIN, AS THE OWNER OF 9,000 OUT OF A TOTAL OF SOME
5,250,000 COMMON SHARES OF ELECTRIC BOND AND SHARE, WAS ALLOWED TO
PARTICIPATE IN THE PROCEEDING, AND OPPOSED A PROPOSITION WHICH THE TWO
COMPANIES SUBMITTED FOR A METHOD OF REFINANCING THE LOAN.  THE
COMMISSION MADE AN ORDER APPROVING THE PROPOSAL; AND OKIN THEREUPON
PETITIONED THE COURT BELOW TO REVIEW THE ORDER.  THE GIST OF HIS
COMPLAINT WAS THAT THE REFINANCING AS APPROVED WOULD REDUCE THE VALUE
OF HIS STOCK BY REDUCING THE INTEREST INCOME OF ELECTRIC BOND AND
SHARE. 

THE COMMISSION, BEFORE FILING A CERTIFIED COPY OF THE TRANSCRIPT OF
THE RECORD UPON WHICH THE ORDER COMPLAINED OF WAS ENTERED, MOVED TO
DISMISS OKIN'S PETITION UPON TWO GROUNDS.  THE FIRST WAS THAT, WITHIN
THE MEANING OF SEC. 24(A), OKIN WAS NOT A PERSON OR PARTY AGGRIEVED. 
THE SECOND WAS THAT HIS OBJECTION TO THE ORDER WAS FRIVOLOUS.  IN
RESPONSE TO THIS THE COURT HELD THAT, WHILE IT MIGHT WELL BE THAT
OKIN'S ATTACK LACKED MERIT, IF IT DID THE RESULT SHOULD BE AN
AFFIRMANCE OF THE ORDER RATHER THAN A DISMISSAL OF THE PROCEEDING, AND
THAT JURISDICTION TO CONSIDER THE MERITS WAS LACKING IN THE ABSENCE OF
A TRANSCRIPT OF THE PROCEEDINGS BEFORE THE COMMISSION.  THE MOTION WAS
ACCORDINGLY DENIED. 

THE COMMISSION ALLEGES THAT SUBSEQUENTLY IT FILED A MOTION TO DISMISS
OR AFFIRM, AFTER HAVING FILED AN ABBREVIATED TRANSCRIPT CONTAINING SO
MUCH OF THE RECORD AS WAS RELIED ON FOR THE PURPOSES OF THE MOTION, AND
THAT THIS MOTION WAS DENIED WITHOUT OPINION.  THE RECORD SHOWS THAT A
MOTION TO DISMISS OR AFFIRM WAS DENIED WITHOUT OPINION. 

THE COMMISSION ASKS US TO REVIEW BOTH DENIALS.  THE RESPONDENT
INSISTS WE LACK JURISDICTION SO TO DO, FOR THE REASON THAT NEITHER
ORDER IS FINAL. 

FIRST.  WE HOLD THAT A STOCKHOLDER HAVING A SUBSTANTIAL FINANCIAL OR
ECONOMIC INTEREST DISTINCT FROM THAT OF THE CORPORATION WHICH IS
DIRECTLY AND ADVERSELY AFFECTED BY AN ORDER OF THE COMMISSION,
IRRESPECTIVE OF ANY EFFECT THE ORDER MAY HAVE ON THE CORPORATION, IS A
"PERSON AGGRIEVED" WITHIN THE MEANING OF SEC. 24(A). 

THE COMMISSION DOES NOT QUESTION THAT AMERICAN, AS SOLE STOCKHOLDER
OF FLORIDA, HAS A SUBSTANTIAL ECONOMIC INTEREST WHICH IS AFFECTED BY
THE ORDER; NOR DOES IT MAINTAIN THAT THE TERM "PERSON AGGRIEVED" IS NOT
BROAD ENOUGH TO INCLUDE ONE WHOSE ECONOMIC INTEREST IS AFFECTED BY AN
ORDER AFFECTING HIS COMPANY UNDER CIRCUMSTANCES WHICH MAKE IT
INEQUITABLE THAT HE BE BOUND BY THE ACTION OR INACTION OF THE
MANAGEMENT.  IT INSISTS, HOWEVER, THAT AMERICAN'S APPLICATION FOR
REVIEW IN THE COURT BELOW WAS IN THE NATURE OF A DERIVATIVE ACTION,
COMMONLY DESIGNATED A STOCKHOLDER'S SUIT, TO REDRESS A WRONG TO HIS
CORPORATION.  IN THIS VIEW, THE COMMISSION URGES THAT, AS FLORIDA HAS
ITSELF SOUGHT A REVIEW OF THE ORDER, IT MUST BE PRESUMED THAT FLORIDA
WILL ENDEAVOR TO PROTECT THE INTEREST OF ITS SOLE STOCKHOLDER,
AMERICAN, AND THAT AMERICAN HAS CONSEQUENTLY FAILED TO SHOW ANY
NECESSITY FOR ITS REPRESENTING THE INTERESTS OF FLORIDA. 

THE DIFFICULTY WITH THIS CONTENTION IS THAT THE ACTION OF THE
COMMISSION IN ORDERING THE TRANSFER OF AN ITEM FROM SURPLUS ACCOUNT TO
ANOTHER ACCOUNT WHERE THE ITEM WILL NOT BE AVAILABLE FOR THE PAYMENT OF
DIVIDENDS DOES NOT DEPRIVE THE CORPORATION OF ANY ASSET OR ADVERSELY
AFFECT THE CONDUCT OF ITS BUSINESS IN THE MANNER IT AFFECTS THE
PETITIONER, WHEREAS THE ORDER HAS A DIRECT ADVERSE EFFECT UPON AMERICAN
AS A STOCKHOLDER ENTITLED TO DIVIDENDS.  IT WAS BECAUSE THE COURT BELOW
OVERLOOKED THIS DIFFERENCE THAT IT FOUND SUPPORT FOR ITS DECISION IN
PITTSBURGH & WEST VIRGINIA R. CO. V. UNITED STATES, 281 U.S. 479.  THAT
WAS A SUIT BROUGHT UNDER THE URGENT DEFICIENCIES ACT TO SET ASIDE AN
ORDER OF THE INTERSTATE COMMERCE COMMISSION ADDRESSED TO A CARRIER
OTHER THAN THE PLAINTIFF IN THE SUIT.  THE PLAINTIFF WAS A MINORITY
STOCKHOLDER OF THE CARRIER AFFECTED.  THIS COURT POINTED OUT THAT,
UNDER THE ACCEPTED DOCTRINE, THE PLAINTIFF HAD NO STANDING TO SUE SINCE
IN ATTEMPTING TO DO SO IT WAS MERELY SEEKING, IN A DERIVATIVE CAPACITY,
TO VINDICATE THE RIGHTS OF THE CORPORATION. 

IN AWARDING A REVIEW OF AN ADMINISTRATIVE PROCEEDING, CONGRESS HAS
POWER TO FORMULATE THE CONDITIONS UNDER WHICH RESORT TO THE COURTS MAY
BE HAD.  FN3  THE PERSONS ACCORDED A RIGHT TO OBTAIN REVIEW ARE,
THEREFORE, TO BE ASCERTAINED FROM THE TERMS OF THE STATUTE.  CONGRESS
MIGHT HERE HAVE PROVIDED THAT ONLY PARTIES TO THE ADMINISTRATIVE
PROCEEDING SHOULD HAVE STANDING TO OBTAIN COURT REVIEW.  WHEN THE BILL
WHICH BECAME THE PUBLIC UTILITY HOLDING COMPANY ACT WAS INTRODUCED IN
THE HOUSES OF CONGRESS IT PROVIDED THAT "ANY PERSON AGGRIEVED BY AN
ORDER ISSUED BY THE COMMISSION IN A PROCEEDING UNDER THIS TITLE TO
WHICH SUCH PERSON IS A PARTY MAY OBTAIN A REVIEW OF SUCH ORDER."  FN4
THE PROVISION WAS ALTERED SO AS TO READ AS IT IS NOW FOUND IN THE
STATUTE.  THERE SEEMS TO BE NO REASON NOT TO ACCORD THE STATUTORY
LANGUAGE ITS NATURAL MEANING IN A CASE SUCH AS THIS, WHERE THE
CONSIDERATIONS WHICH WOULD MOVE THE CORPORATION TO SEEK REVIEW DIFFER
FROM THOSE WHICH MAY BE RELEVANT TO THE STOCKHOLDER'S INTERESTS.  THERE
MAY BE SITUATIONS IN WHICH THE TWO INTERESTS ARE THE SAME AND WHERE
CONSEQUENTLY THE GRIEVANCE OUGHT NOT TO SUPPORT TWO PROCEEDINGS
IDENTICAL IN CHARACTER.  THIS, HOWEVER, IS NOT SUCH A CASE; FOR IT IS
POSSIBLE THAT WITHOUT ANY LEGAL WRONG TO STOCKHOLDERS THE CORPORATION
MAY ELECT NOT TO PROSECUTE, OR TO ABANDON, A PROCEEDING FOR REVIEW. 

THIS COURT HAS NOT ALLOWED THE USUAL CRITERIA OF STANDING TO SUE TO
DENY PERSONS WHO, IN ANALOGOUS CASES UNDER THAT DOCTRINE, WOULD
ORDINARILY NOT BE PERMITTED TO INVOKE COURT REVIEW, THE BENEFIT OF SUCH
REVIEW UNDER STATUTES EMBODYING THE SAME LANGUAGE AS SEC. 24(A).  FN5
THE SAME IS TRUE OF THE LOWER FEDERAL COURTS.  FN6  IN THESE INSTANCES
THE EXTENSION OF THE PRIVILEGE TO PERSONS AGGRIEVED WAS HELD TO EXTEND
IT TO THOSE NOT TECHNICALLY PARTIES, AND, THEREFORE, NOT ENTITLED,
WITHOUT THE STATUTORY PROVISION, TO INITIATE LITIGATION IN A COURT. 

WHILE THE MATTER WAS NOT SPECIFICALLY MOOTED, IT WOULD SEEM THAT,
UNTIL THE INSTANT CASES, BOTH THE COMMISSION AND THE COURTS HAVE BEEN
OF THE VIEW THAT PERSONS SITUATED AS ARE THE STOCKHOLDERS IN THESE
CASES WERE GIVEN THE STATUTORY RIGHT TO APPLY FOR REVIEW OF A
COMMISSION ORDER.  IN CIRCUIT COURTS OF APPEALS, AND IN THIS COURT,
STOCKHOLDERS HAVE BEEN HEARD UPON THE MERITS OF ORDERS MADE AGAINST
CORPORATIONS BY THE SECURITIES AND EXCHANGE COMMISSION.  FN7 

THE FURTHER SUGGESTION IS MADE THAT TO PERMIT STOCKHOLDERS TO RESORT
TO COURT REVIEW WOULD CREATE UNNECESSARY INCONVENIENCE AND EXPENSE
SINCE A STOCKHOLDER ENTITLED TO APPLY TO A COURT MAY GO TO THE CIRCUIT
COURT OF APPEALS OF THE CIRCUIT IN WHICH HE RESIDES OR HAS HIS
PRINCIPAL PLACE OF BUSINESS.  THUS, IT IS URGED, THE COMMISSION MIGHT
BE CALLED UPON TO ANSWER SUITS IN VARIOUS CIRCUITS.  BUT SEC. 24(A)
PROVIDES THAT THE COMMISSION MAY FILE A TRANSCRIPT OF ITS PROCEEDINGS
IN ANY CIRCUIT IN WHICH A PROCEEDING HAS BEEN INITIATED AND THEREUPON
THE COURT IN WHICH THE TRANSCRIPT IS FILED SHALL HAVE EXCLUSIVE
JURISDICTION.  THUS, IF THE COMMISSION HAD HERE ELECTED TO FILE A
TRANSCRIPT IN THE CIRCUIT COURT OF APPEALS WHERE FLORIDA APPLIED FOR
REVIEW, THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT, IN WHICH
AMERICAN'S PETITION WAS FILED, SHOULD HAVE TRANSFERRED THAT PETITION TO
THE OTHER COURT AND ALL THE COMPLAINTS WOULD HAVE BEEN HEARD BY A
SINGLE COURT AND ON THE SAME RECORD.  FN8 

SECOND.  IN NO. 815, THE COURT BELOW HELD THE RESPONDENT HAD STANDING
TO MAINTAIN THE PROCEEDING FOR REVIEW OF THE COMMISSION'S ORDER.  IN
THIS CASE, OKIN, AS A STOCKHOLDER, ATTACKED THE TRANSACTION MADE BY HIS
COMPANY WITH ITS SUBSIDIARY ON THE GROUNDS THAT IT WAS BOTH ILLEGAL AND
FRAUDULENT.  HIS CORPORATION URGED THAT THE COMMISSION APPROVE THE
TRANSACTION, THUS TAKING A POSITION ADVERSE TO HIM.  HIS APPLICATION
FOR REVIEW OF THE COMMISSION'S ORDER APPROVING THE SETTLEMENT WAS,
THEREFORE, IN THE NATURE OF A DERIVATIVE OR STOCKHOLDER'S ACTION. 
INASMUCH AS HE CHARGED ILLEGALITY AND FRAUD, IT IS EVIDENT THAT
APPLICATION TO THE BOARD OF DIRECTORS WOULD HAVE BEEN FUTILE.  UNDER
THE COMMISSION'S OWN VIEW, THEREFORE, THE CIRCUIT COURT OF APPEALS WAS
RIGHT IN DENYING A DISMISSAL OF THE PROCEEDING FOR LACK OF STANDING ON
THE PART OF OKIN TO INITIATE IT. BUT, AS ABOVE STATED IN THE DECISION
OF NO. 470, WE DO NOT DEEM IT ESSENTIAL THAT THE PROCEEDING HAVE THE
CHARACTER OF A DERIVATIVE SUIT. 

THE COMMISSION URGES US TO HOLD THAT THE PETITION ON ITS FACE PRESENTS
ONLY FRIVOLOUS CONTENTIONS.  THE COURT BELOW WAS UNWILLING TO DISMISS
ON THIS GROUND, HOLDING THAT A MORE APPROPRIATE ORDER WOULD BE ONE OF
AFFIRMANCE.  IT REQUIRED THAT THE RECORD BE FILED, AS REQUIRED BY THE
ACT, AS A CONDITION OF CONSIDERATION OF THIS MATTER.  APPARENTLY IT WAS
NOT SATISFIED THAT THE FILING OF AN ABBREVIATED TRANSCRIPT FURNISHED A
BASIS FOR AFFIRMANCE.  THE COMMISSION, WITHOUT INORDINATE DELAY OR
ADDITIONAL EXPENSE, MIGHT HAVE FILED THE FULL TRANSCRIPT OF THE
PROCEEDINGS BEFORE IT AND OBTAINED THE JUDGMENT OF THE COURT ON THE
ADEQUACY OF THE PETITION.  WE THINK WE ARE NOT CALLED UPON TO EXAMINE
THE MERITS OF THE COMMISSION'S CONTENTIONS OR TO REVERSE THE DECISION
DENYING THE MOTION TO DISMISS, OR THAT DENYING THE MOTION TO DISMISS OR
AFFIRM.  THE COURT BELOW HAS DISCRETION TO DEAL WITH THE PROBLEM OF THE
NECESSITY OF A RECORD, AND THE EXTENT THEREOF, IN CONNECTION WITH A
MOTION TO DISMISS OR AFFIRM ON THE GROUND THAT THE PETITION FOR REVIEW
IS FRIVOLOUS.  IN NO. 470 THE JUDGMENT IS REVERSED.  IN NO. 815 THE
JUDGMENT IS AFFIRMED. 

FN1  AMERICAN POWER & LIGHT CO. V. SECURITIES & EXCHANGE COMMISSION,
143 F.2D 250; OKIN V. SECURITIES & EXCHANGE COMMISSION, 143 F.2D 945. 

FN2  15 U.S.C. 79 X. 

FN3  FEDERAL POWER COMM'N V. PACIFIC POWER & LIGHT CO., 307 U.S. 156,
159. 

FN4  SENATE BILL NO. 1725, 74TH CONG., 1ST SESS., SEC. 24(A); HOUSE
RESOLUTION NO. 5423, 74TH CONG., 1ST SESS., SEC. 23(A). 

FN5  INTERSTATE COMMERCE COMMISSION V. OREGON-WASHINGTON R. & N. CO.,
288 U.S. 14(THE INTERSTATE COMMERCE ACT); FEDERAL COMMUNICATIONS COMM'N
V. SANDERS BROS. RADIO STATION, 309 U.S. 470(COMMUNICATIONS ACT); CF.
L. SINGER & SONS V. UNION PACIFIC R. CO., 311 U.S. 295. 

FN6  ASSOCIATED INDUSTRIES V. ICKES, 134 F.2D 694(THE BITUMINOUS COAL
ACT). 

FN7  LAWLESS V. SECURITIES & EXCHANGE COMMISSION, 105 F.2D 574; TODD
V. SECURITIES & EXCHANGE COMMISSION, 137 F.2D 475; CF. NORTHWESTERN
ELECTRIC CO. V. FEDERAL POWER COMMISSION, 321 U.S. 119.    FN8  L. J.
MARQUIS & CO. V. SECURITIES & EXCHANGE COMMISSION, 134 F.2D 335; L. J.
MARQUIS & CO. V. SECURITIES & EXCHANGE COMMISSION, 134 F.2D 822. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE BLACK AND MR. JUSTICE REED CONCUR IN THE RESULT IN NO.
815. 

MR. JUSTICE MURPHY, DISSENTING. 

FIFTEEN YEARS AGO THIS COURT WAS CONFRONTED WITH AN ATTEMPT BY A
CORPORATE STOCKHOLDER TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION ON THE CLAIM THAT THE ORDER THREATENED THE FINANCIAL
STABILITY OF THE CORPORATION TO WHICH IT WAS DIRECTED AS WELL AS THE
"APPELLANT'S FINANCIAL INTEREST AS A MINORITY STOCKHOLDER."  THE COURT,
SPEAKING THROUGH MR. JUSTICE BRANDEIS, HELD THAT THE STOCKHOLDER HAD NO
STANDING TO MAINTAIN THE SUIT SINCE "THE ORDER UNDER ATTACK DOES NOT
DEAL WITH THE INTERESTS OF INVESTORS" AND THE ONLY INJURY FEARED "IS
THE INDIRECT HARM WHICH MAY RESULT TO EVERY STOCKHOLDER FROM HARM TO
THE CORPORATION."  PITTSBURGH & WEST VIRGINIA R. CO. V. UNITED STATES,
281 U.S. 479, 487.  THAT HOLDING, IN MY ESTIMATION, DISPOSES OF THIS
ATTEMPT BY THE AMERICAN POWER & LIGHT COMPANY TO OBTAIN AN INDEPENDENT
JUDICIAL REVIEW OF AN ORDER OF THE SECURITIES AND EXCHANGE COMMISSION
DIRECTED AT A COMPANY IN WHICH IT IS THE SOLE STOCKHOLDER. 

PERSON OR PARTY AGGRIEVED BY AN ORDER ISSUED BY THE COMMISSION" TO
OBTAIN A REVIEW OF SUCH ORDER IN AN APPROPRIATE CIRCUIT COURT OF
APPEALS.  THE TEST, THEN, IS WHETHER AMERICAN WAS "AGGRIEVED" BY THE
COMMISSION'S ORDER IN THIS INSTANCE.  SINCE THE TERM "PERSON OR PARTY
AGGRIEVED" IS NOT DEFINED IN THE ACT WE CAN ONLY ASSUME THAT ITS
MEANING IS TO BE DRAWN FROM TRADITIONAL LEGAL PRINCIPLES AND FROM ANY
RELEVANT STATUTORY POLICIES. 

ONLY TWO PARAGRAPHS OF THE COMMISSION'S ORDER ARE IN ISSUE.  THEY ARE
DIRECTED SOLELY TO THE FLORIDA POWER & LIGHT COMPANY, ALL OF WHOSE
SECURITIES ARE OWNED BY AMERICAN.  THESE PARAGRAPHS FAIL EVEN TO
MENTION AMERICAN; THEY NEITHER REQUIRE NOR PROHIBIT ANY ACTION BY IT.
NOR DO THEY IN ANY WAY AFFECT AMERICAN'S RIGHTS AS A STOCKHOLDER.  THEY
SIMPLY REQUIRE FLORIDA TO MAKE CERTAIN ACCOUNTING ADJUSTMENTS IN THE
FORM OF CHARGES TO EARNED SURPLUS.  SINCE DIVIDENDS ARE PAID FROM
EARNED SURPLUS AND SINCE THESE REQUIREMENTS WILL DECREASE THE EARNED
SURPLUS ACCOUNT, THE COURT REASONS THAT "THE ORDER HAS A DIRECT ADVERSE
EFFECT UPON AMERICAN AS A STOCKHOLDER ENTITLED TO DIVIDENDS."  FROM
THIS IT IS CONCLUDED THAT AMERICAN IS "AGGRIEVED" BY THE ORDER.  TO
THAT REASONING AND CONCLUSION I CANNOT AGREE. 

1.  THERE IS NO EVIDENCE IN THE RECORD TO JUSTIFY THE ASSUMPTION THAT
THE ITEMS TO BE CHARGED TO SURPLUS WOULD NECESSARILY HAVE BEEN
AVAILABLE FOR DISTRIBUTION AS DIVIDENDS TO AMERICAN OR THAT THE SURPLUS
WAS OTHERWISE INADEQUATE TO PAY THE NORMAL AMOUNT OF DIVIDENDS. 
FLORIDA MIGHT WELL HAVE RETAINED THESE ITEMS FOR REINVESTMENT IN THE
BUSINESS, THUS MAKING THEM UNAVAILABLE FOR DIVIDEND DISTRIBUTION. 
MOREOVER, TO THE EXTENT THAT FLORIDA RETAINS THESE ITEMS IN ITS CAPITAL
STRUCTURE, AMERICAN'S ULTIMATE EQUITY IN THE ORGANIZATION IS
INCREASED.  IT CANNOT BE SAID, THEREFORE, THAT AMERICAN HAS BEEN
ADVERSELY AND PERMANENTLY AFFECTED BY THIS ORDER. 

2.  BUT EVEN IF IT WERE CLEAR THAT THE ORDER WOULD NECESSARILY
RESTRICT DIVIDEND PAYMENTS IT DOES NOT FOLLOW THAT THE RESTRAINT SO
DIRECTLY AFFECTS AMERICAN AS TO ENTITLE IT TO CHALLENGE THE ORDER AS A
PERSON "AGGRIEVED."  IT HAS LONG BEEN ESTABLISHED THAT ORDINARILY THE
MERE ACCUMULATION OF AN ADEQUATE SURPLUS DOES NOT ENTITLE A STOCKHOLDER
TO DIVIDENDS UNTIL THE DIRECTORS, IN THEIR DISCRETION, DECLARE THEM. 
SOUTHERN PACIFIC CO. V. LOWE, 247 U.S. 330.  AND UNTIL SUCH A
DECLARATION IS MADE THE DIRECTORS ARE FREE TO DEAL WITH THAT SURPLUS IN
GOOD FAITH AS THEY MAY SEE FIT IN THE EXERCISE OF THEIR BUSINESS
JUDGMENT, THE STOCKHOLDERS NOT HAVING SUFFICIENT INTEREST IN UNDECLARED
OR POTENTIAL DIVIDENDS TO CHALLENGE SUCH ACTION.  SEE WABASH R. CO. V.
BARCLAY, 280 U.S. 197.  THE STOCKHOLDERS' INTEREST IN SUCH MATTERS, IN
OTHER WORDS, IS INDISTINCT FROM THAT OF THE CORPORATION PRIOR TO AN
ACTUAL DECLARATION.  THUS IF THE FLORIDA MANAGEMENT HAD MADE THE SAME
ACCOUNTING ADJUSTMENTS AS THOSE ORDERED BY THE COMMISSION IN THIS CASE
AMERICAN WOULD NOT BE SUFFICIENTLY "AGGRIEVED" TO ATTEMPT TO PREVENT
FLORIDA FROM MAKING SUCH ADJUSTMENTS, EVEN THOUGH DIVIDEND PAYMENTS
MIGHT BE ADVERSELY AFFECTED.  NO ADEQUATE REASON IS EVIDENT FROM THE
FACTS OR FROM THE OPINION OF THIS COURT AS TO WHY AMERICAN IS ANY MORE
DIRECTLY OR ADVERSELY "AGGRIEVED" WHEN THE ACCOUNTING ADJUSTMENTS ARE
ORDERED BY THE COMMISSION RATHER THAN BY FLORIDA'S MANAGEMENT OR AS TO
WHY ANY DIFFERENT RESULTS SHOULD FOLLOW.  THE IMPACT OF THE ADJUSTMENTS
IN EITHER INSTANCE IS PRESUMABLY TO STRENGTHEN THE FINANCIAL STRUCTURE
OF FLORIDA; THAT THEY MAY HAVE THE INCIDENTAL EFFECT OF DECREASING
DIVIDENDS TEMPORARILY HAS NEVER HERETOFORE BEEN SUFFICIENT TO ENTITLE A
STOCKHOLDER TO CHALLENGE THE ADJUSTMENTS. 

3.  THE FACT THAT AMERICAN IS TRYING TO APPEAL AN ADMINISTRATIVE
ORDER RATHER THAN TO INSTITUTE AN ORIGINAL ACTION AGAINST FLORIDA'S
MANAGEMENT IS IRRELEVANT UNDER THE CIRCUMSTANCES.  THE COMMISSION'S
ORDER DOES NOT DEAL WITH THE RIGHTS OF STOCKHOLDERS AS SUCH, IN WHICH
CASE A STOCKHOLDER CLEARLY COULD APPEAL FROM THE ORDER.  SECURITIES &
EXCHANGE COMMISSION V. CHENERY CORP., 318 U.S. 80; LAWLESS V.
SECURITIES & EXCHANGE COMMISSION, 105 F.2D 574; NEW YORK TRUST CO. V.
SECURITIES & EXCHANGE COMMISSION, 131 F.2D 274; CITY NATIONAL BANK &
TRUST CO. V. SECURITIES & EXCHANGE COMMISSION, 134 F.2D 65.  SEE ALSO
OTIS & CO. V. SECURITIES & EXCHANGE COMMISSION, 323 U.S. 624.  NOR IS
THERE ANY CHARGE OF FRAUD OR BREACH OF DUTY ON THE PART OF FLORIDA,
FROM WHICH IT COULD BE ARGUED THAT AMERICAN SHOULD BE GIVEN THE RIGHT
TO APPEAL SINCE FLORIDA MIGHT NOT ACT TO PROTECT AMERICAN'S LEGITIMATE
INTERESTS.  INDEED, SUCH A POSSIBILITY IS EXPRESSLY NEGATIVED BY THE
FACT THAT FLORIDA HAS ALREADY APPEALED THE COMMISSION'S ORDER TO
ANOTHER COURT AND IS URGING PRECISELY THE SAME CONSIDERATIONS THAT
AMERICAN SEEKS TO PRESENT IN THIS PROCEEDING.  IN VIEW OF AMERICAN'S
COMPLETE CONTROL OF FLORIDA THROUGH STOCK OWNERSHIP THERE IS NO DANGER
OF CONFLICTING INTERESTS ARISING BETWEEN THE TWO COMPANIES IN THE OTHER
PROCEEDING.  THERE IS THUS NO BASIS FOR CONCLUDING THAT THE ECONOMIC
INTEREST ASSERTED BY AMERICAN CANNOT OR WILL NOT BE ADEQUATELY
PROTECTED BY FLORIDA.  CF. FEDERAL COMMUNICATIONS COMMISSION V. SANDERS
BROS. RADIO STATION, 309 U.S. 470; ASSOCIATED INDUSTRIES V. ICKES, 134
F.2D 694, DISMISSED AS MOOT, 320 U.S. 707.  THE INEVITABLE LOGIC OF THE
FACTS OF THIS CASE LEADS STRAIGHT BACK TO THE CONCLUSION THAT
AMERICAN'S GRIEVANCE IS ONLY "THE INDIRECT HARM WHICH MAY RESULT TO
EVERY STOCKHOLDER FROM HARM TO THE CORPORATION."  PITTSBURGH & WEST
VIRGINIA R. CO. V. UNITED STATES, SUPRA, 487.  THAT CONCLUSION CALLS
FOR A DISMISSAL OF AMERICAN'S ATTEMPTED APPEAL FROM THE COMMISSION'S
ORDER JUST AS IT WOULD CALL FOR A DISMISSAL OF ANY SUIT BROUGHT BY
AMERICAN AGAINST FLORIDA ON THESE FACTS. 

4.  THE COURT'S CONCLUSION HERE LEADS ONLY TO UNFORTUNATE
CONSEQUENCES IN THE JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS.  IF THE
REMOTE ECONOMIC INTEREST ASSERTED BY AMERICAN IS SUFFICIENT TO
INSTITUTE A REVIEW PROCEEDING SUCH AS THIS THERE IS NO LIMIT TO WHICH
MINORITY STOCKHOLDERS MAY HARASS THE COMMISSION AND THEIR RESPECTIVE
CORPORATIONS BY CHALLENGING ORDERS OF THE COMMISSION DIRECTED TO THE
CORPORATIONS.  IT IS NO ANSWER THAT SEC. 24(A) GIVES EXCLUSIVE
JURISDICTION TO THE COURT IN WHICH THE COMMISSION FILES THE TRANSCRIPT
OF A PARTICULAR PROCEEDING.  THAT PROVISION CLEARLY ENVISAGES TWO OR
MORE APPEALS IN DIFFERENT COURTS BY PERSONS WHO ARE LEGALLY "AGGRIEVED"
BY A COMMISSION ORDER AND WHO CAN OBTAIN ADEQUATE RELIEF ONLY BY
INDIVIDUAL APPEALS.  BUT UNDER THIS DECISION STOCKHOLDERS ARE NOW FREE,
WHENEVER THEY FEEL THAT THEIR POTENTIAL DIVIDENDS ARE AFFECTED BY
COMMISSION ACTION DIRECTED TO THE CORPORATION'S ACCOUNTING ENTRIES
AGAINST WHICH DIVIDENDS ARE CHARGED, TO APPEAL REGARDLESS OF THE
MANAGEMENT'S WISHES IN THE MATTER AND REGARDLESS OF THE MANAGEMENT'S
ABILITY TO PROTECT THEIR INTERESTS FULLY AND FAIRLY.  STOCKHOLDERS IN
EFFECT SUPPLANT THE MANAGEMENT IN DECIDING WHETHER TO APPEAL FROM
ADMINISTRATIVE ACTION AFFECTING SUCH INTERNAL ACCOUNTING PROCEDURE OF
THE CORPORATION, A PROBLEM WHICH UNTIL NOW WAS EXCLUSIVELY AND PROPERLY
WITHIN THE DOMAIN OF THE CORPORATE DIRECTORS AND OFFICERS.  MANY
STOCKHOLDERS ARE NOT IN A POSITION TO KNOW THE INTRICACIES OF MODERN
CORPORATE ACCOUNTING OR THE PROPER ATTITUDE TO TAKE, FROM THE
CORPORATION'S POINT OF VIEW, AS TO THE CHALLENGED ADMINISTRATIVE
ACTION.  BUT NOW THEY HAVE BEEN GIVEN CARTE BLANCHE TO PROCEED AS THEY
DESIRE.  IT IS DIFFICULT TO BELIEVE THAT CONGRESS INTENDED SUCH
CONSEQUENCES TO FLOW FROM ITS USE OF THE WORD "AGGRIEVED" IN SEC.
24(A). 

FINALLY, I DISSENT FROM THE COURT'S DISPOSITION OF THE WRIT IN THE
OKIN CASE.  IT IS NO DOUBT TRUE, AS THE COURT STATES, THAT AN ASSERTION
THAT A TRANSACTION APPROVED BY THE COMMISSION WAS FRAUDULENTLY ENTERED
INTO BY THE CORPORATION IS SUFFICIENT TO ENTITLE THE STOCKHOLDER TO AN
INDEPENDENT REVIEW OF THE COMMISSION'S ACTION.  BUT IT DOES NOT FOLLOW
THAT THE MERE CRY OF "FRAUD" IS SUFFICIENT.  THERE MUST BE SOME BONA
FIDE BASIS APPEARING ON THE FACE OF SO SERIOUS A CHARGE.  HERE,
HOWEVER, OKIN MERELY CHARGES THAT (1) A MAINE CORPORATION IS NOT
SUBJECT TO THE COMMISSION'S JURISDICTION BECAUSE ITS SUBSIDIARIES
OPERATE OUTSIDE THE UNITED STATES; (2) THE PARTICULAR TRANSACTION IN
ISSUE IS DETRIMENTAL TO OKIN'S INTERESTS AS A STOCKHOLDER INASMUCH AS
THE MANAGEMENT EXTENDED A NOTE OF A SUBSIDIARY AT A REDUCED INTEREST
RATE; (3) VARIOUS CORPORATE OFFICERS HELD CONVERSATIONS WITH EACH OTHER
AND WITH MEMBERS OF THE COMMISSION'S STAFF; (4) HIS CONSTITUTIONAL
RIGHTS HAVE BEEN INVADED; AND (5) THE TRANSACTION IS VOID FOR FAILURE
TO COMPLY WITH SEC. 20 OF THE NEW YORK STOCK CORPORATION LAW.  SUCH
FRIVOLOUS CLAIMS OF FRAUD ARE INSUFFICIENT TO WARRANT MAKING AN
EXCEPTION TO THE GENERAL RULE THAT A STOCKHOLDER CANNOT APPEAL AN
ADMINISTRATIVE ORDER WHICH INVOLVES ONLY THE CORPORATION AS SUCH. 

MR. JUSTICE BLACK AND MR. JUSTICE REED JOIN IN THAT PART OF THIS
DISSENT DEALING WITH NO. 470, THE AMERICAN POWER & LIGHT CO. CASE. 
..END :








AKINS V. TEXAS, 325 U.S. 398 


NO. 853.  ARGUED APRIL 30, MAY 1, 1945.  - DECIDED JUNE 4, 1945.  - 182
S.W.2D 723, AFFIRMED. 


1.  THE MANNER IN WHICH THE COURT WHICH CONVICTED THE PETITIONER WAS
ORGANIZED - ASSIGNMENT OF A JUDGE PURSUANT TO A STATUTE THE VALIDITY OF
WHICH UNDER THE STATE CONSTITUTION WAS UPHELD BY THE HIGHEST COURT OF
THE STATE - VIOLATED NO FUNDAMENTAL PRINCIPLE OF JUSTICE AND DENIED NO
RIGHT OF THE PETITIONER UNDER THE FEDERAL CONSTITUTION.  P. 399, N. 1. 

2.  ALTHOUGH THERE WAS BUT ONE NEGRO ON THE GRAND JURY WHICH INDICTED
THE NEGRO PETITIONER, THE RECORD IN THIS CASE FAILS TO ESTABLISH THAT
THE JURY COMMISSIONERS DELIBERATELY AND INTENTIONALLY LIMITED THE
NUMBER OF NEGROES ON THE PANEL, OR THAT THERE WAS DISCRIMINATION ON
ACCOUNT OF RACE IN THE SELECTION OF THE GRAND JURY, IN VIOLATION OF THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT OF
THE FEDERAL CONSTITUTION.  PP. 403, 407. 

3.  IT IS UNNECESSARY HERE TO CONSIDER WHETHER PURPOSEFUL LIMITATION
OF JURORS BY RACE TO THE APPROXIMATE PROPORTION THAT THE ELIGIBLE
JURYMEN OF THE RACE SO LIMITED BEARS TO THE TOTAL ELIGIBLES WOULD BE
INVALID UNDER THE FOURTEENTH AMENDMENT.  P. 407. 

AKINS V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

CERTIORARI, 324 U.S. 836, TO REVIEW A JUDGMENT WHICH AFFIRMED A
SENTENCE OF DEATH UPON A CONVICTION OF MURDER. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI BRINGS HERE FOR REVIEW A JUDGMENT OF THE CRIMINAL
DISTRICT COURT OF DALLAS COUNTY, TEXAS, SENTENCING PETITIONER TO
EXECUTION ON A JURY VERDICT WHICH FOUND PETITIONER GUILTY OF MURDER
WITH MALICE AND ASSESSED THE PENALTY AT DEATH. 

CERTIORARI WAS SOUGHT TO THE COURT OF CRIMINAL APPEALS OF THE STATE
OF TEXAS, WHICH HAD AFFIRMED THE JUDGMENT, ON A PETITION WHICH CLAIMED
DISCRIMINATION ON ACCOUNT OF HIS RACE, AGAINST THE PETITIONER, WHO IS A
NEGRO, UNDER THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES.  FN1
CERTIORARI WAS ALLOWED BECAUSE OF THE IMPORTANCE IN THE ADMINISTRATION
OF CRIMINAL JUSTICE OF THE ALLEGED RACIAL DISCRIMINATION WHICH WAS
RELIED UPON TO SUPPORT THE CLAIM OF VIOLATION OF CONSTITUTIONAL
RIGHTS.  324 U.S. 836.  THIS DISCRIMINATION WAS SAID TO CONSIST OF AN
ARBITRARY AND PURPOSEFUL LIMITATION BY THE GRAND JURY COMMISSIONERS OF
THE NUMBER OF NEGROES TO ONE WHO WAS TO BE PLACED UPON THE GRAND JURY
PANEL OF SIXTEEN FOR THE TERM OF COURT AT WHICH THE INDICTMENT AGAINST
PETITIONER WAS FOUND.  THIS IS PETITIONER'S ONLY COMPLAINT AS TO RACIAL
DISCRIMINATION.  NO OTHER ERRORS IN THE PROCEEDINGS ARE POINTED OUT. 

THE FOURTEENTH AMENDMENT FORBIDS ANY DISCRIMINATION AGAINST A RACE IN
THE SELECTION OF A GRAND JURY.  FN2  NEAL V. DELAWARE, 103 U.S. 370,
394; PIERRE V. LOUISIANA, 306 U.S. 354, 356; SMITH V. TEXAS, 311 U.S.
128; HILL V. TEXAS, 316 U.S. 400.  THE BURDEN IS, OF COURSE, UPON THE
DEFENDANT TO ESTABLISH THE DISCRIMINATION.  TARRANCE V. FLORIDA, 188
U.S. 519, 520; MARTIN V. TEXAS, 200 U.S. 316; NORRIS V. ALABAMA, 294
U.S. 587, 590.  AN ALLEGATION OF DISCRIMINATORY PRACTICES IN SELECTING
A GRAND JURY PANEL CHALLENGES AN ESSENTIAL ELEMENT OF PROPER JUDICIAL
PROCEDURE - THE REQUIREMENT OF FAIRNESS ON THE PART OF THE JUDICIAL ARM
OF GOVERNMENT IN DEALING WITH PERSONS CHARGED WITH CRIMINAL OFFENSES. 
IT CANNOT LIGHTLY BE CONCLUDED THAT OFFICERS OF THE COURTS DISREGARD
THIS ACCEPTED STANDARD OF JUSTICE. 

THE ORDER OVERRULING THE MOTION TO QUASH THE INDICTMENT WAS MADE
AFTER EVIDENCE AND WITHOUT OPINION.  THAT MOTION SET OUT THE ALLEGED
PURPOSEFUL LIMITATION ON RACIAL REPRESENTATION WHICH IS PRESSED HERE. 
THE COURT OF CRIMINAL APPEALS, HOWEVER, WITHOUT A WRITTEN ANALYSIS OF
THE TESTIMONY, SAID IN AN OPINION THAT IT FAILED "TO FIND ANY EVIDENCE
OF DISCRIMINATION.  ON THE CONTRARY, THE EVIDENCE SHOWS AN EFFORT ON
THE PART OF THE AUTHORITIES TO COMPLY WITH THE HOLDING OF THIS COURT
AND OF THE SUPREME COURT OF THE UNITED STATES UPON THE QUESTION OF
DISCRIMINATION."  AKINS V. STATE, 182 S.W.2D 723.  THIS REFERENCE TO
THE HOLDINGS OF THE STATE AND FEDERAL COURTS WAS TO AKENS V. STATE, 145
TEX. CR. R. 289, 167 S.W.2D 758, WHICH REVERSED A PREVIOUS CONVICTION
OF PETITIONER ON THE AUTHORITY OF HILL V. TEXAS, SUPRA.  ALTHOUGH THIS
OPINION OF THE COURT OF CRIMINAL APPEALS DOES NOT REFER TO PROPORTIONAL
RACIAL REPRESENTATION ON JURIES, RECENT DECISIONS OF THAT COURT HAD
PREVIOUSLY DISAPPROVED THAT PROCEDURE.  HAMILTON V. STATE, 141 TEX. CR.
R. 614, 150 S.W.2D 395, 400, R.C.; HILL V. STATE, 144 TEX. CR. R. 415,
157 S.W.2D 369, 373, L.C., REVERSED ON OTHER GROUNDS, 316 U.S. 400.  WE
THINK, THEREFORE, THAT THE CONCLUSIONS OF THE STATE COURTS SHOW THAT IN
THEIR JUDGMENT THERE WAS NO PROVEN RACIAL DISCRIMINATION BY LIMITATION
IN THIS CASE.  OTHERWISE THERE WOULD HAVE BEEN A REVERSAL BY THE COURT
OF CRIMINAL APPEALS. 

AS WELL PRESENTLY APPEAR, THE TRANSCRIPT OF THE EVIDENCE PRESENTS
CERTAIN INCONSISTENCIES AND CONFLICTS OF TESTIMONY IN REGARD TO
LIMITING THE NUMBER OF NEGROES ON THE GRAND JURY.  THEREFORE, THE TRIER
OF FACT WHO HEARD THE WITNESSES IN FULL AND OBSERVED THEIR DEMEANOR ON
THE STAND HAS A BETTER OPPORTUNITY THAN A REVIEWING COURT TO REACH A
CORRECT CONCLUSION AS TO THE EXISTENCE OF THAT TYPE OF DISCRIMINATION. 
WHILE OUR DUTY, IN REVIEWING A CONVICTION UPON A COMPLAINT THAT THE
PROCEDURE THROUGH WHICH IT WAS OBTAINED VIOLATES DUE PROCESS AND EQUAL
PROTECTION UNDER THE FOURTEENTH AMENDMENT, CALLS FOR OUR EXAMINATION OF
EVIDENCE TO DETERMINE FOR OURSELVES WHETHER A FEDERAL CONSTITUTIONAL
RIGHT HAS BEEN DENIED, EXPRESSLY OR IN SUBSTANCE AND EFFECT, NORRIS V.
ALABAMA, 294 U.S. 587, 589-90; SMITH V. TEXAS, 311 U.S. 128, 130, WE
ACCORD IN THAT EXAMINATION GREAT RESPECT TO THE CONCLUSIONS OF THE
STATE JUDICIARY, PIERRE V. LOUISIANA, 306 U.S. 354, 358.  THAT RESPECT
LEADS US TO ACCEPT THE CONCLUSION OF THE TRIER ON DISPUTED ISSUES
"UNLESS IT IS SO LACKING IN SUPPORT IN THE EVIDENCE THAT TO GIVE IT
EFFECT WOULD WORK THAT FUNDAMENTAL UNFAIRNESS WHICH IS AT WAR WITH DUE
PROCESS," LISENBA V. CALIFORNIA, 314 U.S. 219, 238, OR EQUAL
PROTECTION.  CF. ASHCRAFT V. TENNESSEE, 322 U.S. 143, 152, 153;
MALINSKI V. NEW YORK, 324 U.S. 401, 404. 

THE REGULAR STATUTORY PRACTICE FOR THE SELECTION OF GRAND JURORS WAS
FOLLOWED IN THIS CASE.  UNDER THE TEXAS STATUTES JURY COMMISSIONERS
APPOINTED BY THE JUDGE OF THE TRIAL COURT SELECT A LIST OF SIXTEEN
GRAND-JURYMEN FROM WHICH LIST TWELVE ARE CHOSEN AS A GRAND JURY.  TEXAS
CODE OF CRIMINAL PROCEDURE, ARTICLES 333, 337.  QUALIFICATIONS FOR
GRAND-JURYMEN ARE SET OUT IN ARTICLE 339.  FN3  THE COMMISSIONERS ARE
INSTRUCTED BY THE COURT AS TO THEIR DUTIES.  ART. 366.  THIS METHOD OF
SELECTION LEAVES A WIDE RANGE OF CHOICE TO THE COMMISSIONERS.  ITS
VALIDITY, HOWEVER, HAS BEEN ACCEPTED BY THIS COURT.  SMITH V. TEXAS,
311 U.S. 128, 130.  PETITIONER DOES NOT ATTACK IT NOW.  ITS ALTERNATIVE
WOULD BE A LIST COMPOSED OF ALL ELIGIBLES WITHIN THE TRIAL COURT'S
JURISDICTION AND SELECTION OF THE PANEL BY LOT. 

PETITIONER'S SOLE OBJECTION TO THE GRAND JURY IS THAT THE
"COMMISSIONERS DELIBERATELY, INTENTIONALLY AND PURPOSELY LIMITED THE
NUMBER OF THE NEGRO RACE THAT SHOULD BE SELECTED ON SAID GRAND JURY
PANEL TO ONE MEMBER."  FAIRNESS IN SELECTION HAS NEVER BEEN HELD TO
REQUIRE PROPORTIONAL REPRESENTATION OF RACES UPON A JURY.  VIRGINIA V.
RIVES, 100 U.S. 313, 322-23; THOMAS V. TEXAS, 212 U.S. 278, 282. 
PURPOSEFUL DISCRIMINATION IS NOT SUSTAINED BY A SHOWING THAT ON A
SINGLE GRAND JURY THE NUMBER OF MEMBERS OF ONE RACE IS LESS THAN THAT
RACE'S PROPORTION OF THE ELIGIBLE INDIVIDUALS.  THE NUMBER OF OUR RACES
AND NATIONALITIES STANDS IN THE WAY OF EVOLUTION OF SUCH A CONCEPTION
OF DUE PROCESS OR EQUAL PROTECTION.  DEFENDANTS UNDER OUR CRIMINAL
STATUTES ARE NOT ENTITLED TO DEMAND REPRESENTATIVES OF THEIR RACIAL
INHERITANCE UPON JURIES BEFORE WHOM THEY ARE TRIED.  BUT SUCH
DEFENDANTS ARE ENTITLED TO REQUIRE THAT THOSE WHO ARE TRUSTED WITH JURY
SELECTION SHALL NOT PURSUE A COURSE OF CONDUCT WHICH RESULTS IN
DISCRIMINATION "IN THE SELECTION OF JURORS ON RACIAL GROUNDS."  HILL V.
TEXAS, SUPRA, 404.  OUR DIRECTIONS THAT INDICTMENTS BE QUASHED WHEN
NEGROES, ALTHOUGH NUMEROUS IN THE COMMUNITY, WERE EXCLUDED FROM GRAND
JURY LISTS HAVE BEEN BASED ON THE THEORY THAT THEIR CONTINUAL EXCLUSION
INDICATED DISCRIMINATION AND NOT ON THE THEORY THAT RACIAL GROUPS MUST
BE RECOGNIZED.  NORRIS V. ALABAMA, SUPRA; HILL V. TEXAS, SUPRA; SMITH
V. TEXAS, SUPRA.  THE MERE FACT OF INEQUALITY IN THE NUMBER SELECTED
DOES NOT IN ITSELF SHOW DISCRIMINATION.  A PURPOSE TO DISCRIMINATE MUST
BE PRESENT WHICH MAY BE PROVEN BY SYSTEMATIC EXCLUSION OF ELIGIBLE
JURYMEN OF THE PROSCRIBED RACE OR BY UNEQUAL APPLICATION OF THE LAW TO
SUCH AN EXTENT AS TO SHOW INTENTIONAL DISCRIMINATION.  CF. SNOWDEN V.
HUGHES, 321 U.S. 1, 8.  ANY SUCH DISCRIMINATION WHICH AFFECTS AN
ACCUSED WILL MAKE HIS CONVICTION UNLAWFUL. 

THE HISTORY AND RECORD OF THIS CASE GIVES EVIDENCE THAT THE COURTS OF
TEXAS WHICH ARE CHARGED WITH THE TRIAL OF PETITIONER ENDEAVORED TO
COMPLY WITH THE FEDERAL CONSTITUTIONAL REQUIREMENTS AS TO THE SELECTION
OF GRAND JURIES, ACCORDING TO THE INTERPRETATION OF THIS COURT IN HILL
V. TEXAS, SUPRA.  NOT ONLY DID THE COURT OF CRIMINAL APPEALS REVERSE A
FORMER CONVICTION OF PETITIONER ON ITS AUTHORITY BUT THE JUDGE, NOW
DECEASED, OF THE CRIMINAL DISTRICT COURT OF DALLAS INSTRUCTED THE THREE
JURY COMMISSIONERS, WHO SELECTED THIS GRAND JURY LIST, AS TESTIFIED TO
BY EACH OF THEM, THAT THERE SHOULD BE NO DISCRIMINATION AGAINST ANYONE
BECAUSE OF HIS COLOR.  FN4 

HILL V. TEXAS, SUPRA, WAS DECIDED JUNE 1, 1942.  THE TRIAL COURT HAS
FOUR TERMS A YEAR - JANUARY, APRIL, JULY AND OCTOBER.  AFTER THE HILL
DECISION, THE JURY COMMISSIONERS WHO WERE APPOINTED AT THE JULY 1942
TERM TO SELECT GRAND JURORS FOR THE OCTOBER 1942 TERM, TEXAS CODE OF
CRIMINAL PROCEDURE, ARTS. 333 AND 338, PLACED A NEGRO ON THE GRAND JURY
LIST ALTHOUGH HE DID NOT SERVE.  UNDER THE INSTRUCTIONS OF THE JUDGE AS
JUST DETAILED, THE COMMISSIONERS FOR THE JANUARY 1943 TERM, AT WHICH
PETITIONER WAS INDICTED, PLACED A NEGRO ON THE LIST AND HE SERVED AS A
GRAND JUROR.  PRIOR TO THE DECISION IN THE HILL CASE, IT DOES NOT
APPEAR THAT ANY COLORED PERSON HAD EVER SERVED ON A GRAND JURY IN
DALLAS COUNTY. 

ON THE PRECISE ACT OF DISCRIMINATION BY THE JURY COMMISSIONERS WHICH
IS ASSERTED BY PETITIONER, THAT IS THE DELIBERATE, INTENTIONAL AND
PURPOSEFUL LIMITATION TO ONE OF THE NUMBER OF NEGROES ON THE GRAND JURY
PANEL, THE RECORD SHOWS AS FOLLOWS.  ABOUT FIFTEEN AND ONE-HALF PER
CENT OF THE POPULATION OF DALLAS COUNTY, TEXAS, IS NEGRO.  A
SUBSTANTIAL PERCENTAGE OF THEM ARE QUALIFIED TO SERVE AS GRAND JURORS. 
NO EXACT COMPARISON CAN BE MADE BETWEEN THE WHITE AND NEGRO CITIZENS AS
TO THE PERCENTAGE OF EACH RACE WHICH IS ELIGIBLE.  ON THE STRICTLY
MATHEMATICAL BASIS OF POPULATION, A GRAND JURY OF TWELVE WOULD HAVE
1.8552 NEGRO MEMBERS ON THE AVERAGE.  OF COURSE, THE QUALIFICATIONS FOR
GRAND JURY SERVICE, NOTE 3 SUPRA, WOULD AFFECT THE PROPORTION OF
ELIGIBLES FROM THE TWO RACES.  AS ONE MEMBER OF THE NEGRO RACE SERVED
UPON THE GRAND JURY WHICH INDICTED PETITIONER AND ONE HAD APPEARED UPON
THE OTHER GRAND JURY LIST WHICH HAD BEEN SELECTED AFTER THE DECISION IN
HILL V. TEXAS, WE CANNOT SAY THAT THE OMISSION FROM EACH OF THE TWO
LISTS OF ALL BUT ONE OF THE MEMBERS OF A RACE WHICH COMPOSED SOME
FIFTEEN PER CENT OF THE POPULATION ALONE PROVED RACIAL DISCRIMINATION. 

IN CONNECTION WITH THAT FACT OF OMISSION, WE MUST APPRAISE THE
TESTIMONY OFFERED TO SHOW THE INTENTIONAL LIMITATION.  BESIDES THE
LANGUAGE QUOTED IN NOTE 4 SUPRA, WHICH RELATES PARTICULARLY TO THE
COURT'S INSTRUCTIONS, OTHER RELEVANT EVIDENCE OF SUCH INTENTION IS
FOUND ONLY IN THE TESTIMONY OF THE COMMISSIONERS.  THEY MADE THESE
STATEMENTS AS TO THEIR INTENTIONS: 

COMMISSIONER WELLS:  "THERE WAS NOTHING SAID ABOUT THE NUMBER AND
NOTHING WAS SAID ABOUT THE NUMBER ON THE PANEL....  WE HAD NO INTENTION
OF PLACING MORE THAN ONE NEGRO ON THE PANEL.  WHEN WE DID THAT WE HAD
FINISHED WITH THE NEGRO.  THAT WAS THE SUGGESTION OF THE OTHERS AND
WHAT JUDGE ADAMS THOUGHT ABOUT THE SELECTION OF THE GRAND JURY....
JUDGE ADAMS DID NOT TELL US TO PUT ONE NEGRO OR FIVE NEGROES ON THE
GRAND JURY.  YES, WE JUST UNDERSTOOD TO SEE THAT NEGROES HAD
REPRESENTATION ON THE GRAND JURY, AND WE WENT OUT TO SEE THIS
PARTICULAR ONE BECAUSE WE DID NOT KNOW HIM....  AMONG THE WHITE PEOPLE
WHOSE NAMES MIGHT GO ON THE GRAND JURY, UNLESS I KNEW THEM PERSONALLY
AND KNEW THEIR QUALIFICATIONS, WE WENT OUT AND TALKED TO THEM.  NO, WE
DID NOT DISCRIMINATE AGAINST A WHITE MAN OR A NEGRO.  I ATTEMPTED NOT
TO." 

COMMISSIONER TENNANT:  "WE THREE DID NOT GO TO SEE ANY OTHER NEGROES,
THAT IS THE ONLY ONE.  I DID NOT HAVE ANY INTENTION OF PUTTING MORE
THAN ONE ON THE LIST; I COULD NOT THINK OF ANYBODY; I WOULD HAVE IF I
COULD HAVE THOUGHT OF ANOTHER ONE, AND PUTTING ONE ON." 

COMMISSIONER DOUGLAS:  "YES, SIR, THERE WERE OTHER NEGROES' NAMES
MENTIONED BESIDES THE ONE WE SELECTED; WE DID NOT GO TALK TO THEM; WE
LIKED THIS ONE, AND OUR INTENTIONS WERE TO GET JUST ONE NEGRO ON THE
GRAND JURY; THAT IS RIGHT.  NO, I DID NOT HAVE ANY INTENTION OF PLACING
MORE THAN ONE NEGRO ON THE GRAND JURY....  WE NEVER AGREED TO SELECT
ANY CERTAIN NUMBER, BUT WHEN WE FOUND ONE WITH ALL THE QUALIFICATIONS
OF A GRAND JUROR WE FELT LIKE THAT WAS SATISFACTORY REPRESENTATION....
NO, SIR, WE DID NOT HAVE IN MIND TO PUT ANY SET NUMBER OF
REPRESENTATIVES OF THE VARIOUS RACES....  WE DID NOT AGREE TO PUT
ELEVEN NEGROES AND ONE WHITE MAN ON, NO. THAT IS RIGHT, ALL THAT WE
WERE ENDEAVORING TO GET A FAIR AND IMPARTIAL GRAND JURY WITHOUT ANY
DISCRIMINATION AGAINST ANY RACE ON EARTH.  WE DID NOT HAVE IN MIND, OR
THE OTHER COMMISSIONERS, TO PUT ANY SET NUMBER ON OF ANY RACE, WHITE,
YELLOW OR WHAT-NOT." 

A CAREFUL EXAMINATION OF THESE STATEMENTS IN CONNECTION WITH ALL THE
OTHER EVIDENCE LEAVES US UNCONVINCED THAT THE COMMISSIONERS
DELIBERATELY AND INTENTIONALLY LIMITED THE NUMBER OF NEGROES ON THE
GRAND JURY LIST.  THE JUDGE WHO HEARD THE WITNESSES ON THE MOTION TO
QUASH DID NOT FIND THAT TYPE OF DISCRIMINATION.  THE LAW OF THEIR
STATE, THE INSTRUCTIONS OF THE JUDGE, THEIR OATH OF OFFICE REQUIRED
THEM TO CHOOSE PROSPECTIVE JURORS ON THEIR STATUTORY QUALIFICATIONS AND
WITHOUT REGARD TO THEIR COLOR OR THE NUMBER OF REPRESENTATIVES OF
VARIOUS RACES WHO MIGHT APPEAR UPON THE LIST.  WE CANNOT SAY THE
COMMISSIONERS VIOLATED THESE OBLIGATIONS.    THIS CONCLUSION MAKES IT
UNNECESSARY TO DECIDE WHETHER A PURPOSEFUL LIMITATION OF JURORS BY RACE
TO THE APPROXIMATE PROPORTION THAT THE ELIGIBLE JURYMEN OF THE RACE SO
LIMITED BEARS TO THE TOTAL ELIGIBLES IS INVALID UNDER THE FOURTEENTH
AMENDMENT. 

THE JUDGMENT IS AFFIRMED. 

FN1  CERTIORARI WAS ALLOWED ALSO FOR ALLEGED DENIAL OF DUE PROCESS
UNDER THE FOURTEENTH AMENDMENT BECAUSE OF THE MANNER IN WHICH THE TRIAL
JUDGE WAS DESIGNATED TO CONDUCT THE TRIAL COURT.  HE ACTED BY
ASSIGNMENT OF THE PRESIDING JUDGE OF THE FIRST ADMINISTRATIVE JUDICIAL
DISTRICT OF TEXAS UNDER GENERAL AND SPECIAL LAWS, 48TH LEG.  REG. 
SESS., P. 25(VERNON'S ANNOTATED CIVIL STATUTES, TEXAS, ART. 200A, SEC.
5) INSTEAD OF BY APPOINTMENT BY THE GOVERNOR UNDER SEC. 28, ARTICLE 5,
OF THE CONSTITUTION OF TEXAS, TO FILL THE VACANCY CAUSED BY THE DEATH
OF THE REGULARLY CHOSEN OCCUPANT. 

THE LEGALITY OF THE ASSIGNMENT DEPENDS UPON THE VALIDITY OF THE
PROVISIONS OF THE STATE STATUTE AS TESTED BY THE TEXAS CONSTITUTION. 
THE CONSTITUTIONAL REQUIREMENT IS THAT VACANCIES IN THE OFFICE OF
JUDGES SHALL BE FILLED BY THE GOVERNOR.  THE TEXAS STATUTE PROVIDED FOR
ASSIGNMENT OF OTHER JUDGES FOR THE WORK OF THE COURT.  THIS STATUTE WAS
INTERPRETED BY THE COURT OF CRIMINAL APPEALS TO PROVIDE MERELY FOR THE
FUNCTIONING OF COURTS UNDER ASSIGNED JUDGES, WHO DID NOT QUALIFY AS
SUCCESSORS TO DECEDENT JUDGES, UNTIL THE VACANCY WAS FILLED BY
APPOINTMENT OR ELECTION.  THE COURT UPHELD THE CONSTITUTIONALITY OF THE
STATUTE.  PIERSON V. STATE, 177 S.W.2D 975; FULLER V. STATE, 180 S.W.2D
361; JONES V. STATE, 181 S.W.2D 75; BROWN V. STATE, 181 S.W.2D 93;
AKINS V. STATE, 182 S.W.2D 723.  WHETHER THE STATE RULE IS EXPRESSED IN
CONSTITUTION, STATUTE OR DECISION, OR PARTLY IN ONE AND PARTLY IN
ANOTHER, THE STATE'S POWER IS TO BE VIEWED AS A TOTALITY.  IN THE
ABSENCE OF A VIOLATION OF FUNDAMENTAL PRINCIPLE OF JUSTICE, A STATE'S
DETERMINATION IS CONCLUSIVE UPON THE FEDERAL COURTS AS TO THE MEANING
OF THE STATE LAW, SO FAR AS ANY FEDERAL QUESTION IS CONCERNED.  HEBERT
V. LOUISIANA, 272 U.S. 312, 316; GREGG DYEING CO. V. QUERY, 286 U.S.
472, 479-80; UNITED GAS CO. V. TEXAS, 303 U.S. 123, 141-42.  WE FIND NO
VIOLATION OF ANY OF PETITIONER'S FEDERAL RIGHTS IN TEXAS' DECISION UPON
THE LEGALITY OF THE ORGANIZATION OF THE COURT WHICH TRIED PETITIONER. 

FN2  CONSTITUTION, FOURTEENTH AMENDMENT, SEC. 1:  "...  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." 

FN3  ART. 339.  "NO PERSON SHALL BE SELECTED OR SERVE AS A GRAND
JUROR WHO DOES NOT POSSESS THE FOLLOWING QUALIFICATIONS: 

"1.  HE MUST BE A CITIZEN OF THE STATE, AND OF THE COUNTY IN WHICH HE
IS TO SERVE, AND QUALIFIED UNDER THE CONSTITUTION AND LAWS TO VOTE IN
SAID COUNTY; BUT, WHENEVER IT SHALL BE MADE TO APPEAR TO THE COURT THAT
THE REQUISITE NUMBER OF JURORS WHO HAVE PAID THEIR POLL TAXES CAN NOT
BE FOUND WITHIN THE COUNTY, THE COURT SHALL NOT REGARD THE PAYMENT OF
POLL TAXES AS A QUALIFICATION FOR SERVICE AS A JUROR. 

"2.  HE MUST BE A FREEHOLDER WITHIN THE STATE, OR A HOUSEHOLDER
WITHIN THE COUNTY. 

"3.  HE MUST BE OF SOUND MIND AND GOOD MORAL CHARACTER. 

"4.  HE MUST BE ABLE TO READ AND WRITE. 

"5.  HE MUST NOT HAVE BEEN CONVICTED OF ANY FELONY. 

"6.  HE MUST NOT BE UNDER INDICTMENT OR OTHER LEGAL ACCUSATION FOR
THEFT OR OF ANY FELONY." 

FN4  COMMISSIONER WELLS:  "IN THE SELECTION OF OUR PANEL OF SIXTEEN
FOR THE GRAND JURY THE WAY WE DETERMINED WHOM WE WOULD PUT ON THAT LIST
WAS, WE WERE ADVISED BY JUDGE GROVER ADAMS THAT THE SUPREME COURT HAD
RULED THAT WE COULD NOT DISCRIMINATE AGAINST ANY ONE BECAUSE OF HIS
COLOR, AS I RECALL, THEY HAD NOT BEEN DISCRIMINATING FOR SELECTION ON
THE GRAND JURY PANEL; AND IN TURN THEY SAID THERE WERE SIXTEEN, AND IT
WOULD BE FURTHER EVIDENT IF WE PLACED ONE AMONG THE TWELVE SO AS TO
MAKE IT CLEAR." 

COMMISSIONER TENNANT:  "WHEN THE GRAND JURY COMMISSIONERS WERE
APPOINTED BY JUDGE ADAMS THE ONLY THING I REMEMBER HE SAID IS THAT WE
COULD NOT DISCRIMINATE AGAINST THE NEGRO POPULATION BEING REPRESENTED
ON THE GRAND JURY.  NO, HE JUST OUTLINED IF HE COULD QUALIFY AS A GRAND
JUROR.  IN THIS PARTICULAR INSTANCE WE SELECTED ONE NEGRO ON THIS
PANEL; SO FAR AS I AM CONCERNED, I READ IN THE PAPER THAT THE SUPREME
COURT OF THE UNITED STATES STATED THAT A NEGRO COULD SIT ON THE GRAND
JURY  ....  JUDGE ADAMS NEVER MENTIONED TO US ABOUT PUTTING ONE NEGRO
ON THE GRAND JURY, OR FIVE OR TEN.  YES, THAT THERE MUST BE
REPRESENTATION FOR THE RACE." 

COMMISSIONER DOUGLAS:  "AT THAT TIME JUDGE ADAMS, THE JUDGE OF THIS
COURT MADE SOME REFERENCE OR INSTRUCTIONS ABOUT HOW TO SELECT THE GRAND
JURY.  HE THOUGHT IT WELL TO SELECT NEGROES ON THE GRAND JURY.  HE SAID
HE THOUGHT IT WOULD BE WELL TO SELECT A NEGRO ON THE GRAND JURY.  THERE
WAS NO FURTHER DISCUSSION ABOUT THAT.  WE DID SELECT A NEGRO ON THE
GRAND JURY.  ALL THREE OF US WENT OUT THERE TO SEE HIM.  WE ALL WENT
AND TALKED TO JUST ONE NEGRO AND THAT IS THE ONE WE SELECTED." 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK DISSENT. 

MR. JUSTICE MURPHY, DISSENTING. 

THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT ENTITLES
EVERY PERSON, WHOSE LIFE, LIBERTY OR PROPERTY IS IN ISSUE, TO THE
BENEFITS OF GRAND AND PETIT JURIES CHOSEN WITHOUT REGARD TO RACE, COLOR
OR CREED.  THIS CONSTITUTIONAL PRINCIPLE IS A FUNDAMENTAL TENET OF THE
AMERICAN FAITH IN THE JURY SYSTEM.  THE ABSENCE OF SUCH A PRINCIPLE
WOULD GIVE FREE REIN TO THOSE WHO WITTINGLY OR OTHERWISE ACT TO
UNDERMINE THE VERY FOUNDATIONS OF THIS SYSTEM AND WOULD MAKE JURIES
READY WEAPONS FOR OFFICIALS TO OPPRESS THOSE ACCUSED INDIVIDUALS WHO BY
CHANCE ARE NUMBERED AMONG UNPOPULAR OR INARTICULATE MINORITIES. 

THE STATE OF TEXAS IN THIS INSTANCE APPEARS TO HAVE MADE A SINCERE
EFFORT TO OBEY THIS CONSTITUTIONAL MANDATE IN SELECTING THE GRAND JURY
WHICH INDICTED THE NEGRO PETITIONER.  UNTIL THIS COURT'S DECISION IN
1942 IN HILL V. TEXAS, 316 U.S. 400, NO NEGRO EVER SERVED ON A GRAND
JURY IN DALLAS COUNTY, TEXAS, WHERE THIS CASE AROSE.  IN AN ATTEMPT TO
COMPLY WITH THAT DECISION THE THREE JURY COMMISSIONERS WERE CAREFUL
HERE TO APPOINT ONE NEGRO TO THE SIXTEEN-MEMBER GRAND JURY PANEL; HE
QUALIFIED AND SERVED ON THE TWELVE-MAN JURY.  THUS IT CANNOT BE SAID
THAT TEXAS HAS SYSTEMATICALLY AND COMPLETELY EXCLUDED NEGROES FROM THE
GRAND JURY.  CF. NORRIS V. ALABAMA, 294 U.S. 587; PIERRE V. LOUISIANA,
306 U.S. 354; SMITH V. TEXAS, 311 U.S. 128; HILL V. TEXAS, SUPRA. BUT
THAT FACT ALONE DOES NOT GUARANTEE COMPLIANCE WITH THE FOURTEENTH
AMENDMENT, HOWEVER COMMENDABLE MAY BE THE ATTEMPT.  RACIAL LIMITATION
NO LESS THAN RACIAL EXCLUSION IN THE FORMATION OF JURIES IS AN EVIL
CONDEMNED BY THE EQUAL PROTECTION CLAUSE.  "THE AMENDMENT NULLIFIES
SOPHISTICATED AS WELL AS SIMPLE-MINDED MODES OF DISCRIMINATION."  LANE
V. WILSON, 307 U.S. 268, 275.  THIS CASE MUST THEREFORE BE REVIEWED
WITH THAT IN MIND. 

PETITIONER, AS A NEGRO, "CANNOT CLAIM, AS MATTER OF RIGHT, THAT HIS
RACE SHALL HAVE A REPRESENTATION ON THE JURY," NEAL V. DELAWARE, 103
U.S. 370, 394, INASMUCH AS "A MIXED JURY IN A PARTICULAR CASE IS NOT
ESSENTIAL TO THE EQUAL PROTECTION OF THE LAWS," VIRGINIA V. RIVES, 100
U.S. 313, 323.  BUT PETITIONER, AS A HUMAN BEING ENDOWED WITH ALL THE
RIGHTS SPECIFIED IN THE CONSTITUTION, CAN CLAIM THAT NO RACIAL OR
RELIGIOUS EXCLUSION, LIMITATION OR OTHER FORM OF DISCRIMINATION SHALL
ENTER INTO THE SELECTION OF ANY JURY WHICH INDICTS OR TRIES HIM. 

IT FOLLOWS THAT THE STATE OF TEXAS, IN INSISTING UPON ONE NEGRO
REPRESENTATIVE ON THE GRAND JURY PANEL, HAS RESPECTED NO RIGHT
BELONGING TO PETITIONER.  ON THE CONTRARY, TO THE EXTENT THAT THIS
INSISTENCE AMOUNTS TO A DEFINITE LIMITATION OF NEGRO GRAND JURORS, A
CLEAR CONSTITUTIONAL RIGHT HAS BEEN DIRECTLY INVADED.  THE EQUAL
PROTECTION CLAUSE GUARANTEES PETITIONER NOT ONLY THE RIGHT TO HAVE
NEGROES CONSIDERED AS PROSPECTIVE VENIREMEN BUT ALSO THE RIGHT TO HAVE
THEM CONSIDERED WITHOUT NUMERICAL OR PROPORTIONAL LIMITATION.  IF A
JURY IS TO BE FAIRLY CHOSEN FROM A CROSS SECTION OF THE COMMUNITY IT
MUST BE DONE WITHOUT LIMITING THE NUMBER OF PERSONS OF A PARTICULAR
COLOR, RACIAL BACKGROUND OR FAITH - ALL OF WHICH ARE IRRELEVANT FACTORS
IN SETTING QUALIFICATIONS FOR JURY SERVICE.  THIS MAY IN A PARTICULAR
INSTANCE RESULT IN THE SELECTION OF ONE, SIX, TWELVE OR EVEN NO NEGROES
ON A JURY PANEL.  THE IMPORTANT POINT, HOWEVER, IS THAT THE SELECTIONS
MUST IN NO WAY BE LIMITED OR RESTRICTED BY SUCH IRRELEVANT FACTORS. 

IN THIS CASE THE STATE OF TEXAS HAS CANDIDLY ADMITTED BEFORE US "THAT
NONE OF THE THREE (JURY COMMISSIONERS) INTENDED TO PLACE MORE THAN ONE
NEGRO UPON THE GRAND JURY DRAWN BY THEM."  COMMISSIONER WELLS TESTIFIED
THAT "WE HAD NO INTENTION OF PLACING MORE THAN ONE NEGRO ON THE PANEL. 
WHEN WE DID THAT WE HAD FINISHED WITH THE NEGRO."  IN THE WORDS OF
COMMISSIONER TENNANT, "WE THREE DID NOT GO TO SEE ANY OTHER NEGROES,
THAT IS THE ONLY ONE.  I DID NOT HAVE ANY INTENTION OF PUTTING MORE
THAN ONE ON THE LIST."  FINALLY, AS COMMISSIONER DOUGLAS STATED, "YES,
SIR, THERE WERE OTHER NEGROES' NAMES MENTIONED BESIDES THE ONE WE
SELECTED; WE DID NOT GO TALK TO THEM; WE LIKED THIS ONE, AND OUR
INTENTIONS WERE TO GET JUST ONE NEGRO ON THE GRAND JURY; THAT IS
RIGHT.  NO, I DID NOT HAVE ANY INTENTION OF PLACING MORE THAN ONE NEGRO
ON THE GRAND JURY." 

CLEARER PROOF OF INTENTIONAL AND DELIBERATE LIMITATION ON THE BASIS
OF COLOR WOULD BE DIFFICULT TO PRODUCE.  THE COMMISSIONERS'
DECLARATIONS THAT THEY DID NOT INTEND TO DISCRIMINATE AND THEIR OTHER
INCONSISTENT STATEMENTS CITED BY THE COURT FADE INTO INSIGNIFICANCE
BESIDE THE ADMITTED AND OBVIOUS FACT THAT THEY INTENDED TO AND DID
LIMIT THE NUMBER OF NEGROES ON THE JURY PANEL.  BY LIMITING THE NUMBER
TO ONE THEY THEREBY EXCLUDED THE POSSIBILITY THAT TWO OR MORE NEGROES
MIGHT BE AMONG THE PERSONS QUALIFIED TO SERVE.  ALL THOSE EXCEPT THE
ONE NEGRO WERE REQUIRED TO BE OF WHITE COLOR.  AT THE SAME TIME, BY
INSISTING UPON ONE NEGRO, THEY FORECLOSED THE POSSIBILITY OF CHOOSING
SIXTEEN WHITE MEN ON THE PANEL.  THEY REFUSED, IN BRIEF, TO DISREGARD
THE FACTOR OF COLOR IN SELECTING THE JURY PERSONNEL.  TO THAT EXTENT
THEY HAVE DISREGARDED PETITIONER'S RIGHT TO THE EQUAL PROTECTION OF THE
LAWS.  TO THAT EXTENT THEY HAVE IGNORED THE IDEALS OF THE JURY SYSTEM. 
OUR AFFIRMANCE OF THIS JUDGMENT THUS TARNISHES THE FACT THAT WE OF THIS
NATION ARE ONE PEOPLE UNDIVIDED IN ABILITY OR FREEDOM BY DIFFERENCES IN
RACE, COLOR OR CREED. 
..END :



















BOWLES V. SEMINOLE ROCK CO., 325 U.S. 410 


NO. 914.  ARGUED APRIL 26, 27, 1945.  - DECIDED JUNE 4, 1945.  - 145
F.2D 482, REVERSED. 


1.  UNDER RULE (I) OF SEC. 1499.163(A)(2) OF MAXIMUM PRICE REGULATION
NO. 188, ISSUED BY THE ADMINISTRATOR OF THE OFFICE OF PRICE
ADMINISTRATION UNDER SEC. 2(A) OF THE EMERGENCY PRICE CONTROL ACT OF
1942, A SELLER'S CEILING PRICE FOR AN ARTICLE WHICH WAS ACTUALLY
DELIVERED DURING MARCH 1942 IS THE HIGHEST PRICE CHARGED FOR THE
ARTICLE SO DELIVERED, REGARDLESS OF WHEN THE SALE OR CHARGE WAS MADE. 
P. 416. 

2.  IN INTERPRETING AN ADMINISTRATIVE REGULATION A COURT MUST
NECESSARILY LOOK TO THE ADMINISTRATIVE CONSTRUCTION OF THE REGULATION
IF THE MEANING OF THE WORDS USED IS IN DOUBT.  THE INTENTION OF
CONGRESS OR THE PRINCIPLES OF THE CONSTITUTION IN SOME SITUATIONS MAY
BE RELEVANT IN THE FIRST INSTANCE IN CHOOSING BETWEEN VARIOUS
CONSTRUCTIONS.  BUT THE ULTIMATE CRITERION IS THE ADMINISTRATIVE
INTERPRETATION, WHICH BECOMES OF CONTROLLING WEIGHT UNLESS IT IS
PLAINLY ERRONEOUS OR INCONSISTENT WITH THE REGULATION.  PP. 413-414. 

3.  THIS COURT DOES NOT HERE DETERMINE THE CONSTITUTIONALITY OR
STATUTORY VALIDITY OF THE REGULATION AS SO CONSTRUED (MATTERS
DETERMINABLE IN THE FIRST INSTANCE BY THE EMERGENCY COURT OF APPEALS);
NOR ANY QUESTION OF HARDSHIP OF ENFORCEMENT OF SUCH CEILING PRICE (THE
PROCEDURE FOR RELIEF THEREFROM BEING PRESCRIBED BY SEC. 2(C) OF THE ACT
AND SEC. 1499.161 OF THE REGULATION).  P. 418. 

BOWLES, PRICE ADMINISTRATOR, V. SEMINOLE ROCK & SAND CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 324 U.S. 835, TO REVIEW A JUDGMENT AFFIRMING THE
DISMISSAL OF A SUIT BY THE PRICE ADMINISTRATOR TO ENJOIN THE RESPONDENT
FROM VIOLATION OF THE EMERGENCY PRICE CONTROL ACT OF 1942 AND
REGULATIONS ISSUED PURSUANT THERETO. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

OUR CONSIDERATION HERE IS DIRECTED TO THE PROPER INTERPRETATION AND
APPLICATION OF CERTAIN PROVISIONS OF MAXIMUM PRICE REGULATION NO. 188,
FN1  ISSUED BY THE ADMINISTRATOR OF THE OFFICE OF PRICE ADMINISTRATION
UNDER SECTION 2(A) OF THE EMERGENCY PRICE CONTROL ACT OF 1942.  FN2 

RESPONDENT IS A MANUFACTURER OF CRUSHED STONE, A COMMODITY SUBJECT TO
MAXIMUM PRICE REGULATION NO. 188.  IN OCTOBER, 1941, RESPONDENT
CONTRACTED TO FURNISH THE SEABOARD AIR LINE RAILWAY CRUSHED STONE ON
DEMAND AT 60 CENTS PER TON, TO BE DELIVERED WHEN CALLED FOR BY
SEABOARD.  THIS STONE WAS ACTUALLY DELIVERED TO SEABOARD IN MARCH,
1942. 

IN JANUARY, 1942, RESPONDENT HAD CONTRACTED TO SELL CRUSHED STONE TO
V.P. LOFTIS CO., A GOVERNMENT CONTRACTOR ENGAGED IN THE CONSTRUCTION OF
A GOVERNMENT DAM, FOR $1.50 A TON.  FN3  THIS STONE WAS TO BE DELIVERED
BY RESPONDENT BY BARGE WHEN NEEDED AT THE DAM SITE.  A SMALL PORTION OF
STONE OF A DIFFERENT GRADE THAN THAT SOLD TO SEABOARD WAS DELIVERED TO
LOFTIS CO. DURING JANUARY PURSUANT TO THIS CONTRACT.  FOR SOME TIME
THEREAFTER, HOWEVER, LOFTIS CO. WAS UNABLE TO POUR CONCRETE OR TO STORE
CRUSHED STONE AT THE DAM SITE.  RESPONDENT THUS MADE NO FURTHER
DELIVERIES UNDER THIS CONTRACT UNTIL AUGUST, 1942, AT WHICH TIME STONE
OF THE SAME GRADE AS RECEIVED BY SEABOARD WAS DELIVERED TO LOFTIS CO.
AT THE $1.50 RATE. 

SUBSEQUENTLY, AND AFTER THE EFFECTIVE DATE OF MAXIMUM PRICE
REGULATION NO. 188, RESPONDENT MADE NEW CONTRACTS TO SELL CRUSHED STONE
TO SEABOARD AT 85 CENTS AND $1.00 PER TON.  ALLEGING THAT THE HIGHEST
PRICE AT WHICH RESPONDENT COULD LAWFULLY SELL CRUSHED STONE OF THE KIND
SOLD TO SEABOARD WAS 60 CENTS A TON, SINCE THAT WAS ASSERTED TO BE THE
HIGHEST PRICE CHARGED BY RESPONDENT DURING THE CRUCIAL MONTH OF MARCH,
1942, THE ADMINISTRATOR OF THE OFFICE OF PRICE ADMINISTRATION BROUGHT
THIS ACTION TO ENJOIN RESPONDENT FROM VIOLATING THE ACT AND MAXIMUM
PRICE REGULATION NO. 188.  FN4 THE DISTRICT COURT DISMISSED THE ACTION
ON THE GROUND THAT $1.50 A TON WAS THE HIGHEST PRICE CHARGED BY
RESPONDENT DURING MARCH, 1942, AND THAT THIS CEILING PRICE HAD NOT BEEN
EXCEEDED.  THE FIFTH CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT. 
145 F.2D 482.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE
PROBLEM IN THE ADMINISTRATION OF THE EMERGENCY PRICE CONTROL AND
STABILIZATION LAWS. 

IN HIS EFFORTS TO COMBAT WARTIME INFLATION, THE ADMINISTRATOR
ORIGINALLY ADOPTED A POLICY OF PIECEMEAL PRICE CONTROL, ONLY CERTAIN
SPECIFIED ARTICLES BEING SUBJECT TO PRICE REGULATION.  ON APRIL 28,
1942, HOWEVER, HE ISSUED THE GENERAL MAXIMUM PRICE REGULATION.  FN5
THIS BROUGHT THE ENTIRE ECONOMY OF THE NATION UNDER PRICE CONTROL WITH
CERTAIN MINOR EXCEPTIONS.  THE CORE OF THE REGULATION WAS THE
REQUIREMENT THAT EACH SELLER SHALL CHARGE NO MORE THAN THE PRICES WHICH
HE CHARGED DURING THE SELECTED BASE PERIOD OF MARCH 1 TO 31, 1942. 
WHILE STILL APPLYING THIS GENERAL PRICE "FREEZE" AS OF MARCH, 1942,
NUMEROUS SPECIALIZED REGULATIONS RELATING TO PARTICULAR GROUPS OF
COMMODITIES SUBSEQUENTLY HAVE MADE CERTAIN REFINEMENTS AND
MODIFICATIONS OF THE GENERAL REGULATION.  MAXIMUM PRICE REGULATION NO.
188, COVERING SPECIFIED BUILDING MATERIALS AND CONSUMERS' GOODS, IS OF
THIS NUMBER. 

THE PROBLEM IN THIS CASE IS TO DETERMINE THE HIGHEST PRICE RESPONDENT
CHARGED FOR CRUSHED STONE DURING MARCH, 1942, WITHIN THE MEANING OF
MAXIMUM PRICE REGULATION NO. 188.  SINCE THIS INVOLVES AN
INTERPRETATION OF AN ADMINISTRATIVE REGULATION A COURT MUST NECESSARILY
LOOK TO THE ADMINISTRATIVE CONSTRUCTION OF THE REGULATION IF THE
MEANING OF THE WORDS USED IS IN DOUBT.  THE INTENTION OF CONGRESS OR
THE PRINCIPLES OF THE CONSTITUTION IN SOME SITUATIONS MAY BE RELEVANT
IN THE FIRST INSTANCE IN CHOOSING BETWEEN VARIOUS CONSTRUCTIONS.  BUT
THE ULTIMATE CRITERION IS THE ADMINISTRATIVE INTERPRETATION, WHICH
BECOMES OF CONTROLLING WEIGHT UNLESS IT IS PLAINLY ERRONEOUS OR
INCONSISTENT WITH THE REGULATION.  THE LEGALITY OF THE RESULT REACHED
BY THIS PROCESS, OF COURSE, IS QUITE A DIFFERENT MATTER.  IN THIS CASE
THE ONLY PROBLEM IS TO DISCOVER THE MEANING OF CERTAIN PORTIONS OF
MAXIMUM PRICE REGULATION NO. 188.  OUR ONLY TOOLS, THEREFORE, ARE THE
PLAIN WORDS OF THE REGULATION AND ANY RELEVANT INTERPRETATIONS OF THE
ADMINISTRATOR. 

"THE MAXIMUM PRICE FOR ANY ARTICLE WHICH WAS DELIVERED OR OFFERED FOR
DELIVERY IN MARCH, 1942, BY THE MANUFACTURER, SHALL BE THE HIGHEST
PRICE CHARGED BY THE MANUFACTURER DURING MARCH, 1942(AS DEFINED IN SEC.
1499.163) FOR THE ARTICLE."  SECTION 1499.163(A)(2)  FN6  IN TURN
PROVIDES THAT FOR PURPOSES OF THIS REGULATION THE TERM: 

"'HIGHEST PRICE CHARGED DURING MARCH, 1942' MEANS 

"(I) THE HIGHEST PRICE WHICH THE SELLER CHARGED TO A PURCHASER OF THE
SAME CLASS FOR DELIVERY OF THE ARTICLE OR MATERIAL DURING MARCH, 1942;
OR 

"(II)  IF THE SELLER MADE NO SUCH DELIVERY DURING MARCH, 1942, SUCH
SELLER'S HIGHEST OFFERING PRICE TO A PURCHASER OF THE SAME CLASS FOR
DELIVERY OF THE ARTICLE OR MATERIAL DURING THAT MONTH; OR 

"(III)  IF THE SELLER MADE NO SUCH DELIVERY AND HAD NO SUCH OFFERING
PRICE TO A PURCHASER OF THE SAME CLASS DURING MARCH, 1942, THE HIGHEST
PRICE CHARGED BY THE SELLER DURING MARCH, 1942, TO A PURCHASER OF A
DIFFERENT CLASS, ADJUSTED TO REFLECT THE SELLER'S CUSTOMARY
DIFFERENTIAL BETWEEN THE TWO CLASSES OF PURCHASERS  ..." 

IT IS THUS EVIDENT THAT THE REGULATION ESTABLISHES THREE MUTUALLY
EXCLUSIVE RULES FOR DETERMINING THE HIGHEST PRICE CHARGED BY A SELLER
DURING MARCH, 1942.  THE FACTS OF EACH CASE MUST FIRST BE TESTED BY
RULE (I); ONLY IF THAT RULE IS INAPPLICABLE MAY RULE (II) BE UTILIZED;
AND ONLY IF BOTH RULES (I) AND (II) ARE INAPPLICABLE IS RULE (III)
CONTROLLING. 

THE DISPUTE IN THIS INSTANCE CENTERS ABOUT THE MEANING AND
APPLICABILITY OF RULE (I).  THE ADMINISTRATOR CLAIMS THAT THE RULE IS
SATISFIED AND THEREFORE IS CONTROLLING WHENEVER THERE HAS BEEN AN
ACTUAL DELIVERY OF ARTICLES IN THE MONTH OF MARCH, 1942, SUCH AS
OCCURRED WHEN RESPONDENT DELIVERED THE CRUSHED ROCK TO SEABOARD AT THE
60-CENT RATE.  THE RESPONDENT, ON THE OTHER HAND, ARGUES THAT THERE
MUST BE BOTH A CHARGE AND A DELIVERY DURING MARCH, 1942, IN ORDER TO
FIX THE CEILING PRICE ACCORDING TO RULE (I).  SINCE THE CHARGE OR SALE
TO SEABOARD OCCURRED SEVERAL MONTHS PRIOR TO MARCH, IT IS ASSERTED THAT
RULE (I) BECOMES INAPPLICABLE AND THAT RULE (II) MUST BE USED. 
INASMUCH AS THERE WAS AN OUTSTANDING OFFERING PRICE OF $1.50 PER TON
FOR DELIVERY OF CRUSHED STONE TO LOFTIS CO. DURING THE MONTH OF MARCH,
1942, ALTHOUGH THE STONE WAS NOT ACTUALLY DELIVERED AT THAT TIME,
RESPONDENT CONCLUDES THAT THE REQUIREMENTS OF RULE (II) HAVE BEEN MET
AND THAT THE CEILING PRICE IS $1.50 PER TON. 

AS WE READ THE REGULATION, HOWEVER, RULE (I) CLEARLY APPLIES TO THE
FACTS OF THIS CASE, MAKING 60 CENTS PER TON THE CEILING PRICE FOR
RESPONDENT'S CRUSHED STONE.  THE REGULATION RECOGNIZES THE FACT THAT
MORE THAN ONE MEANING MAY BE ATTACHED TO THE PHRASE "HIGHEST PRICE
CHARGED DURING MARCH, 1942."  THE PHRASE MIGHT BE CONSTRUED TO MEAN
ONLY THE ACTUAL CHARGES OR SALES MADE DURING MARCH, REGARDLESS OF THE
DELIVERY DATES.  OR IT MIGHT REFER ONLY TO THE CHARGES MADE FOR ACTUAL
DELIVERY IN MARCH.  WHATEVER MAY BE THE VARIETY OF MEANINGS, HOWEVER,
RULE (I) ADOPTS THE HIGHEST PRICE WHICH THE SELLER "CHARGED  ...  FOR
DELIVERY" OF AN ARTICLE DURING MARCH, 1942.  THE ESSENTIAL ELEMENT
BRINGING THE RULE INTO OPERATION IS THUS THE FACT OF DELIVERY DURING
MARCH.  IF DELIVERY OCCURS DURING THAT PERIOD THE HIGHEST PRICE CHARGED
FOR SUCH DELIVERY BECOMES THE CEILING PRICE.  NOTHING IS SAID
CONCERNING THE TIME WHEN THE CHARGE OR SALE  FN7  GIVING RISE TO THE
DELIVERY OCCURS.  ONE MAY MAKE A SALE OR CHARGE IN OCTOBER RELATIVE TO
AN ARTICLE WHICH IS ACTUALLY DELIVERED IN MARCH AND STILL BE SAID TO
HAVE "CHARGED  ...  FOR DELIVERY  ...  DURING MARCH."  WE CAN ONLY
CONCLUDE, THEREFORE, THAT FOR PURPOSES OF RULE (I) THE HIGHEST PRICE
CHARGED FOR AN ARTICLE DELIVERED DURING MARCH, 1942, IS THE SELLER'S
CEILING PRICE REGARDLESS OF THE TIME WHEN THE SALE OR CHARGE WAS MADE. 

THIS CONCLUSION IS FURTHER BORNE OUT BY THE FACT THAT RULE (II)
BECOMES APPLICABLE ONLY WHERE "THE SELLER MADE NO SUCH DELIVERY DURING
MARCH, 1942," AS CONTEMPLATED BY RULE (I).  THE ABSENCE OF DELIVERY,
RATHER THAN THE ABSENCE OF BOTH A CHARGE AND A DELIVERY DURING MARCH,
IS NECESSARY TO MAKE RULE (I) INEFFECTIVE, THEREBY INDICATING THAT THE
FACTOR OF DELIVERY IS THE ESSENCE OF RULE (I).  IT IS APPARENT,
MOREOVER, THAT THE DELIVERY MUST BE AN ACTUAL INSTEAD OF A CONSTRUCTIVE
ONE.  SECTION 1499.20(D) OF GENERAL MAXIMUM PRICE REGULATION,
INCORPORATED BY REFERENCE INTO MAXIMUM PRICE REGULATION NO. 188 BY SEC.
1499.151, DEFINES THE WORD "DELIVERED" AS MEANING "RECEIVED BY THE
PURCHASER OR BY ANY CARRIER  ...  FOR SHIPMENT TO THE PURCHASER" DURING
MARCH, 1942.  THUS AN ARTICLE IS NOT "DELIVERED" TO A PURCHASER DURING
MARCH BECAUSE OF THE EXISTENCE OF AN EXECUTORY CONTRACT UNDER WHICH NO
SHIPMENTS ARE ACTUALLY MADE TO HIM DURING THAT MONTH.  IN SHORT, THE
ADMINISTRATOR IN RULE (I) WAS CONCERNED WITH WHAT ACTUALLY WAS
DELIVERED, NOT WITH WHAT MIGHT HAVE BEEN DELIVERED. 

ANY DOUBTS CONCERNING THIS INTERPRETATION OF RULE (I) ARE REMOVED BY
REFERENCE TO THE ADMINISTRATIVE CONSTRUCTION OF THIS METHOD OF
COMPUTING THE CEILING PRICE.  THUS IN A BULLETIN ISSUED BY THE
ADMINISTRATOR CONCURRENTLY WITH THE GENERAL MAXIMUM PRICE REGULATION
ENTITLED "WHAT EVERY RETAILER SHOULD KNOW ABOUT THE GENERAL MAXIMUM
PRICE REGULATION,"  FN8  WHICH WAS MADE AVAILABLE TO MANUFACTURERS AS
WELL AS TO WHOLESALERS AND RETAILERS, THE ADMINISTRATOR STATED (P. 3):
"THE HIGHEST PRICE CHARGED DURING MARCH 1942 MEANS THE HIGHEST PRICE
WHICH THE RETAILER CHARGED FOR AN ARTICLE ACTUALLY DELIVERED DURING
THAT MONTH OR, IF HE DID NOT MAKE ANY DELIVERY OF THAT ARTICLE DURING
MARCH, THEN HIS HIGHEST OFFERING PRICE FOR DELIVERY OF THAT ARTICLE
DURING MARCH."  HE ALSO STATED (P. 4) THAT "IT SHOULD BE CAREFULLY
NOTED THAT ACTUAL DELIVERY DURING MARCH, RATHER THAN THE MAKING OF A
SALE DURING MARCH, IS CONTROLLING."  IN HIS FIRST QUARTERLY REPORT TO
CONGRESS, THE ADMINISTRATOR FURTHER REMARKED (P. 40) THAT "'HIGHEST
PRICE CHARGED' MEANS ONE OF TWO THINGS:  (1) IT MEANS THE TOP PRICE FOR
WHICH AN ARTICLE WAS DELIVERED DURING MARCH 1942, IN COMPLETION OF A
SALE TO A PURCHASER OF THE SAME CLASS  ...  (2) IF THERE WAS NO ACTUAL
DELIVERY OF A PARTICULAR ARTICLE DURING MARCH, THE SELLER MAY ESTABLISH
AS HIS MAXIMUM PRICE THE HIGHEST PRICE AT WHICH HE OFFERED THE ARTICLE
FOR SALE DURING THAT MONTH."  FINALLY, THE ADMINISTRATOR HAS STATED
THAT THIS POSITION HAS UNIFORMLY BEEN TAKEN BY THE OFFICE OF PRICE
ADMINISTRATION IN THE COUNTLESS EXPLANATIONS AND INTERPRETATIONS GIVEN
TO INQUIRERS AFFECTED BY THIS TYPE OF MAXIMUM PRICE DETERMINATION. 

OUR READING OF THE LANGUAGE OF SEC. 1499.163(A)(2) OF MAXIMUM PRICE
REGULATION NO. 188 AND THE CONSISTENT ADMINISTRATIVE INTERPRETATION
FN9  OF THE PHRASE "HIGHEST PRICE CHARGED DURING MARCH, 1942" THUS
COMPEL THE CONCLUSION THAT RESPONDENT'S HIGHEST PRICE CHARGED DURING
MARCH FOR CRUSHED STONE WAS 60 CENTS PER TON, SINCE THAT WAS THE
HIGHEST PRICE CHARGED FOR STONE ACTUALLY DELIVERED DURING THAT MONTH. 
THE TWO COURTS BELOW ERRED IN THEIR INTERPRETATION OF THIS REGULATION
AND THE JUDGMENT BELOW MUST ACCORDINGLY BE REVERSED. 

WE DO NOT, OF COURSE, REACH ANY QUESTION HERE AS TO THE
CONSTITUTIONALITY OR STATUTORY VALIDITY OF THE REGULATION AS WE HAVE
CONSTRUED IT, MATTERS THAT MUST IN THE FIRST INSTANCE BE PRESENTED TO
THE EMERGENCY COURT OF APPEALS.  LOCKERTY V. PHILLIPS, 319 U.S. 182;
YAKUS V. UNITED STATES, 321 U.S. 414, 427-431.  NOR ARE WE HERE
CONCERNED WITH ANY POSSIBLE HARDSHIP THAT THE ENFORCEMENT OF THE 60
CENT PRICE CEILING MAY IMPOSE ON RESPONDENT.  ADEQUATE AVENUES FOR
RELIEF FROM HARDSHIP ARE OPEN TO RESPONDENT THROUGH THE PROVISIONS OF
SEC. 2(C) OF THE ACT AND SEC. 1499.161 OF THE REGULATION.  REVERSED. 

FN1  7 FED. REG. 5872, 7967, 8943. 

FN2  56 STAT. 23, 24. 

FN3  THE CONTRACT ACTUALLY SPOKE IN TERMS OF $1.50 PER CUBIC YARD,
BUT THERE IS NO APPRECIABLE DIFFERENCE BETWEEN A CUBIC YARD OF CRUSHED
STONE AND A TON OF CRUSHED STONE. 

FN4  THE ADMINISTRATOR ALSO SOUGHT TO RECOVER FROM RESPONDENT A
JUDGMENT UNDER SEC. 205(E) OF THE ACT FOR THREE TIMES THE AMOUNT BY
WHICH THE SALES PRICE OF THE CRUSHED STONE SOLD BY THE RESPONDENT TO
SEABOARD AFTER THE EFFECTIVE DATE OF MAXIMUM PRICE REGULATION NO. 188
EXCEEDED 60 CENTS PER TON.  THE DISTRICT COURT HELD THAT THE PURCHASER
RATHER THAN THE ADMINISTRATOR WAS VESTED WITH WHATEVER CAUSE OF ACTION
EXISTED TO RECOVER A JUDGMENT UNDER SEC. 205(E).  THE CIRCUIT COURT OF
APPEALS, HOWEVER, HELD THAT SEC. 205(E), AS AMENDED BY SEC. 108(B) OF
THE STABILIZATION EXTENSION ACT OF 1944, 58 STAT. 640, ENTITLED THE
ADMINISTRATOR RATHER THAN THE PURCHASER TO BRING SUIT UNDER THE
CIRCUMSTANCES OF THIS CASE.  THIS ASPECT OF THE CASE IS NOT NOW BEFORE
US.    FN5  7 FED. REG. 3156. 

FN6  7 FED. REG. 7968-7969. 

FN7  RESPONDENT POINTS TO THE PROVISION IN SEC. 302(A) OF THE ACT, 56
STAT. 36, TO THE EFFECT THAT THE TERM "SALE" AS USED IN THE ACT
INCLUDES "SALES, DISPOSITIONS, EXCHANGES, LEASES, AND OTHER TRANSFERS,
AND CONTRACTS AND OFFERS TO DO ANY OF THE FOREGOING," AS WELL AS TO A
SIMILAR PROVISION IN SEC. 1499.20(R) OF THE GENERAL MAXIMUM PRICE
REGULATION.  BUT SUCH A DEFINITION IS OF NO ASSISTANCE IN DETERMINING
THE MEANING OF THE ADMINISTRATOR'S USE OF THE PHRASE "CHARGED  ... FOR
DELIVERY" DURING MARCH, 1942. 

FN8  GENERAL MAXIMUM PRICE REGULATION, BULLETIN NO. 2(MAY, 1942). 
MAXIMUM PRICE REGULATION NO. 188 ESTABLISHED PRICES "AT THE IDENTICAL
LEVEL OF THE GENERAL MAXIMUM PRICE REGULATION" FOR ARTICLES DEALT IN
DURING MARCH, 1942.  7 FED. REG. 5873. 

FN9  RESPONDENT POINTS TO TWO ALLEGEDLY INCONSISTENT INTERPRETATIONS
MADE BY THE ADMINISTRATOR: 

1.  ON AUGUST 20, 1942(O.P.A. PRESS RELEASE NO. 564), HE MADE CERTAIN
STATEMENTS WITH REFERENCE TO AMENDMENT 23 TO THE GENERAL MAXIMUM PRICE
REGULATION, 7 FED. REG. 6615, ALLOWING A DIFFERENT METHOD OF MAXIMUM
PRICE COMPUTATION WHERE GENERAL PRICE INCREASES WERE ANNOUNCED PRIOR TO
APRIL 1, 1942, AND DELIVERIES AT LOWER PRICES WERE MADE IN MARCH UNDER
PREVIOUS CONTRACTS.  THE PROVISIONS AND APPLICABILITY OF THIS AMENDMENT
ARE NOT IN ISSUE IN THIS CASE AND STATEMENTS INTERPRETING THAT
AMENDMENT HAVE NO BEARING HERE. 

2.  ON DECEMBER 5, 1942(O.P.A. PRESS RELEASE NO. 1223), HE ISSUED A
STATEMENT INTERPRETING AMENDMENT 38 TO THE GENERAL MAXIMUM PRICE
REGULATION AND AMENDMENT 3 TO MAXIMUM PRICE REGULATION NO. 188, 7 FED.
REG. 10155.  THESE AMENDMENTS AUTHORIZED SELLERS WHO MADE GENERAL PRICE
INCREASES PRIOR TO APRIL 1, 1942, TO APPLY THE INCREASES TO CEILING
PRICES FOR GOODS AND SERVICES DELIVERED DURING MARCH UNDER LONG-TERM
CONTRACTS.  THE ADMINISTRATOR'S EXPLANATION OF THESE AMENDMENTS, WHICH
ARE NOT PRESENTLY BEFORE US, IS LIKEWISE IRRELEVANT IN THIS CASE. 

INDEED, THE FACT THAT THE ADMINISTRATOR FOUND IT NECESSARY TO MAKE
SUCH AMENDMENTS IS SOME EVIDENCE THAT UNDER THE RULES HERE IN ISSUE THE
PRICE ESTABLISHED UNDER A PREVIOUS CONTRACT IS THE MAXIMUM PRICE IF
THAT WAS THE HIGHEST PRICE FOR GOODS ACTUALLY DELIVERED DURING MARCH,
1942. 

MR. JUSTICE ROBERTS THINKS THE JUDGMENT SHOULD BE AFFIRMED FOR THE
REASONS GIVEN IN THE OPINION OF THE CIRCUIT COURT OF APPEALS, 145 F.2D
482. 
..END :








WALLING V. HARDWOOD CO., 325 U.S. 419 


NO. 955.  ARGUED MAY 1, 1945.  - DECIDED JUNE 4, 1945.  - 145 F.2D 349,
REVERSED. 


1.  IN A PROCEEDING BROUGHT BY THE ADMINISTRATOR TO ENJOIN ALLEGED
VIOLATIONS OF THE FAIR LABOR STANDARDS ACT, THE DISTRICT COURT DID NOT
ABUSE ITS DISCRETION IN REFUSING TO ENJOIN THE EMPLOYER'S USE OF A
METHOD OF WAGE PAYMENTS WHICH THE EMPLOYER HAD ABANDONED ON THE DAY
BEFORE THE TRIAL - WHERE THE COURT FOUND NO EVIDENCE OF INTENT TO
RESUME USE OF SUCH METHOD OF PAYMENTS, NOR OF WILLFUL VIOLATION OF THE
ACT, NOR OF INTENT TO VIOLATE THE ACT IN FUTURE.  P. 421. 

2.  THE REGULAR RATE CONTEMPLATED BY SEC. 7(A) OF THE FAIR LABOR
STANDARDS ACT REFERS TO THE HOURLY RATE ACTUALLY PAID THE EMPLOYEE FOR
THE NORMAL, NON-OVERTIME WORKWEEK FOR WHICH HE IS EMPLOYED.  IN THE
CASE OF PIECE WORK WAGES, THIS REGULAR RATE IS THE QUOTIENT OF THE
AMOUNT RECEIVED DURING THE WEEK DIVIDED BY THE NUMBER OF HOURS WORKED. 
P. 424. 

3.  THE REGULAR RATE BY ITS VERY NATURE MUST REFLECT ALL PAYMENTS
WHICH THE PARTIES HAVE AGREED SHALL BE RECEIVED REGULARLY DURING THE
WORKWEEK, EXCLUSIVE OF OVERTIME PAYMENTS.  THE DETERMINATION OF THIS
RATE IS A MATTER OF MATHEMATICAL CALCULATION AND IS UNAFFECTED BY ANY
DESIGNATION OF A CONTRARY "REGULAR RATE" IN THE WAGE CONTRACTS.  P.
424. 

4.  WAGE AGREEMENTS BETWEEN A LUMBER MANUFACTURER AND EMPLOYEES
ENGAGED AS STACKERS PROVIDED FOR COMPENSATION AT A "REGULAR RATE" OF 35
CENTS PER HOUR AND ONE AND ONE-HALF TIMES THAT RATE FOR OVERTIME, WITH
A GUARANTY OF 70 CENTS PER 1,000 BOARD FEET OF LUMBER RICKED AND 80
CENTS STACKED.  THE GUARANTEED PIECE RATE WOULD RESULT IN AN AVERAGE
HOURLY RATE OF 59 CENTS FOR A NORMAL, NON-OVERTIME WORKWEEK.  HELD THAT
THE WAGE AGREEMENTS, SO FAR AS THEY FAILED TO PROVIDE FOR OVERTIME
COMPENSATION OF ONE AND ONE-HALF TIMES THE REGULAR RATE ACTUALLY
RECEIVED, WHICH IN THIS INSTANCE WOULD EQUAL THE AVERAGE HOURLY RATE OF
59 CENTS, VIOLATED SEC. 7(A) OF THE FAIR LABOR STANDARDS ACT.  P. 425. 

THE INDIVIDUAL REGULAR RATE WHICH MUST BE USED WILL DEPEND UPON THE
NUMBER OF HOURS WORKED AND THE WAGES RECEIVED BY EACH STACKER DURING
THE PARTICULAR WORKWEEK IN QUESTION; BUT SUCH A RATE IS THE ONE THAT
MUST ENTER INTO ANY CALCULATIONS OF OVERTIME PAYMENTS DUE UNDER SEC.
7(A). 

5.  WALLING V. BELO CORP., 316 U.S. 624, IS NOT AUTHORITY FOR FIXING
BY CONTRACT A "REGULAR RATE" WHOLLY UNRELATED TO PAYMENTS WHICH THE
EMPLOYEES ACTUALLY AND NORMALLY RECEIVE EACH WEEK.  P. 426. 

WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U.S. DEPARTMENT
OF LABOR, V. YOUNGERMAN-REYNOLDS HARDWOOD CO., INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 324 U.S. 837, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A SUIT BY THE ADMINISTRATOR TO ENJOIN ALLEGED VIOLATIONS OF
THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT CORPORATION MANUFACTURES LUMBER FOR SHIPMENT IN
INTERSTATE COMMERCE, EMPLOYING VARIOUS MEN TO PICK UP AND STACK
BOARDS.  PRIOR TO THE TRIAL IN THIS CASE THESE STACKERS WERE
COMPENSATED AT AGREED PIECE RATES PER THOUSAND BOARD FEET RICKED OR
STACKED.  THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE
DEPARTMENT OF LABOR BROUGHT SUIT TO ENJOIN ALLEGED VIOLATIONS OF THE
OVERTIME AND RECORD-KEEPING PROVISIONS OF THE FAIR LABOR STANDARDS ACT
OF 1938  FN1  IN CONNECTION WITH THESE STACKERS.  ON THE DAY BEFORE THE
COMMENCEMENT OF THE TRIAL IN THE DISTRICT COURT THE RESPONDENT CEASED
TO USE THE ALLEGEDLY ILLEGAL MODE OF PIECE RATE COMPENSATION AND
ENTERED INTO NEW AND MORE ELABORATE WAGE AGREEMENTS WITH THE STACKERS. 
FOLLOWING THE TRIAL THE DISTRICT COURT DISMISSED THE COMPLAINT AND THE
FIFTH CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT.  145 F.2D 349. 
WE GRANTED CERTIORARI BECAUSE OF IMPORTANT QUESTIONS AS TO WHETHER THE
NEW WAGE AGREEMENTS COMPLY WITH THE REQUIREMENTS OF SEC. 7(A) OF THE
ACT. 

FIRST.  THE DISTRICT COURT FOUND THAT EVEN THOUGH THE FORMER PIECE
RATE AGREEMENTS BE CONSIDERED UNLAWFUL THE RESPONDENT HAD NO APPARENT
INTENTION OF RESUMING THEIR USE.  IT ALSO FOUND NO WILLFUL INTENTION ON
THE PART OF THE RESPONDENT TO VIOLATE THE ACT AND NO EVIDENCE OF ANY
INTENTION OF FUTURE VIOLATIONS.  IT THEREFORE FELT THAT THERE WAS NO
NECESSITY FOR AN INJUNCTION.  WHILE "VOLUNTARY DISCONTINUANCE OF AN
ALLEGED ILLEGAL ACTIVITY DOES NOT OPERATE TO REMOVE A CASE FROM THE
AMBIT OF JUDICIAL POWER," WALLING V. HELMERICH & PAYNE, 323 U.S. 37,
43, IT MAY JUSTIFY A COURT'S REFUSAL TO ENJOIN FUTURE ACTIVITY OF THIS
NATURE WHEN IT IS COMBINED WITH A BONA FIDE INTENTION TO COMPLY WITH
THE LAW AND NOT TO RESUME THE WRONGFUL ACTS.  CF. UNITED STATES V.
UNITED STATES STEEL CORP., 251 U.S. 417, 445.  WE CANNOT SAY,
THEREFORE, THAT THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO
ENJOIN THE ABANDONED METHOD OF WAGE PAYMENTS. 

AT THE SAME TIME, HOWEVER, THE VALIDITY OF THE NEW WAGE AGREEMENTS
WAS ALSO AT STAKE.  THESE AGREEMENTS ON THEIR FACE CONTEMPLATED FUTURE
HOURLY PAYMENTS AT REGULAR AND OVERTIME RATES AS WELL AS ADDITIONAL
PIECE RATE PAYMENTS.  SINCE THE ADMINISTRATOR'S COMPLAINT ALLEGED
GENERALLY THAT THE RESPONDENT WAS VIOLATING SECS. 7 AND 15(A)(2) BY
EMPLOYING ITS STACKERS ON A PIECE WORK BASIS FOR MORE THAN 40 HOURS A
WEEK WITHOUT COMPENSATING THEM FOR OVERTIME AT ONE AND ONE-HALF TIMES
THE REGULAR RATE, THE QUESTION AS TO WHETHER THE NEW CONTRACTS
SATISFIED SEC. 7(A) WAS PROPERLY IN ISSUE.  UPON PROOF THAT THESE NEW
PROVISIONS DID NOT COMPLY WITH SEC. 7(A) THE ADMINISTRATOR WAS
THEREFORE ENTITLED TO AN INJUNCTION ABSENT ANY RECOGNIZED MITIGATING
FACTOR.  EVIDENCE ON THIS MATTER WAS INTRODUCED AT THE TRIAL AND THE
TWO COURTS BELOW CONSIDERED THE CONTRACTS THOROUGHLY, PREDICATING THEIR
JUDGMENTS IN PART UPON THE BELIEF THAT THE AGREEMENTS DID COMPLY WITH
SEC. 7(A).  WE ACCORDINGLY TURN TO A CONSIDERATION OF THAT QUESTION. 

SECOND.  FOR APPROXIMATELY SIX MONTHS IMMEDIATELY PRECEDING THE TRIAL
THE STACKERS WERE PAID PIECE RATES OF 60 CENTS PER THOUSAND BOARD FEET
RICKED AND 70 CENTS PER THOUSAND BOARD FEET STACKED.  DURING THIS
PERIOD THEY EARNED AT THESE RATES AN AVERAGE OF 51 CENTS AN HOUR. 
UNDER THE NEW CONTRACTS MADE ON THE DAY BEFORE THE TRIAL, HOWEVER, THEY
WERE COMPENSATED ACCORDING TO THE FOLLOWING PROVISIONS: 

"THE BASIC OR REGULAR RATE OF PAY IS 35 CENTS PER HOUR FOR THE FIRST
FORTY HOURS EACH WEEK AND FOR TIME OVER FORTY HOURS EACH WEEK THE PAY
SHALL NOT BE LESS THAN ONE AND ONE-HALF TIMES SUCH BASIC OR REGULAR
RATE ABOVE MENTIONED WITH A GUARANTY THAT THE EMPLOYEE SHALL RECEIVE
WEEKLY FOR REGULAR TIME AND FOR SUCH OVERTIME AS THE EMPLOYEE MAY WORK
A SUM ARRIVED AT AS FOLLOWS: 

"THE AMOUNT OF STACKING DONE BY SAID EMPLOYEE SHALL BE FIGURED ON THE
BASIS OF 80 CENTS PER THOUSAND BOARD FEET OF LUMBER FOR FLAT STACKING
AND 70 CENTS PER THOUSAND BOARD FEET OF LUMBER RICKED." 

USING BY WAY OF ILLUSTRATION THE LABOR PERFORMED AND THE HOURS WORKED
DURING THE SIX-MONTH PERIOD PRECEDING THE TRIAL, THE ADMINISTRATOR
POINTS OUT THAT UNDER THE NEW GUARANTEED PIECE RATES OF 70 AND 80 CENTS
PER THOUSAND THE STACKERS WOULD EARN AN AVERAGE OF ABOUT 59 CENTS AN
HOUR FOR ALL HOURS ACTUALLY WORKED, INCLUDING THOSE IN EXCESS OF THE
STATUTORY MAXIMUM.  ON THE BASIS OF THE CONTRACT "REGULAR RATE" OF 35
CENTS AN HOUR,  FN2  ON THE OTHER HAND, THE EXCESS HOURS WOULD YIELD
THE STACKERS ONLY 52 1/2 CENTS HOURLY.  IT IS THUS APPARENT THAT THE
GUARANTEED PIECE RATES WOULD YIELD GREATER RETURNS ON AN HOURLY BASIS
FOR BOTH REGULAR AND OVERTIME WORK AND THAT THEY WOULD ACTUALLY BE THE
RATES PAID. 

THE RESPONDENT ARGUES THAT THESE CONTRACT PROVISIONS SATISFY SEC.
7(A) SINCE THEY PROVIDE FOR A "REGULAR RATE" OF 35 CENTS AN HOUR AND
FOR PAYMENT OF ONE AND ONE-HALF TIMES THAT RATE, OR 52 1/2 CENTS, FOR
ALL OVERTIME HOURS.  INASMUCH AS THE ACT DOES NOT FORBID INCENTIVE PAY
OR COMPENSATION ABOVE AND BEYOND THE STATUTORY REQUIREMENTS IT IS URGED
THAT THE ADDITIONAL PAYMENTS RESULTING FROM THE OPERATION OF THE
GUARANTEED PIECE RATES ARE UNAFFECTED IN ANY WAY BY SEC. 7(A).  WE
CANNOT AGREE, HOWEVER, THAT THIS SCHEME OF COMPENSATION IS OBEDIENT TO
THIS STATUTORY MANDATE. 

UNDER SEC. 7(A) AN EMPLOYER IS REQUIRED TO COMPENSATE HIS EMPLOYEES
FOR ALL HOURS IN EXCESS OF 40 AT NOT LESS THAN ONE AND ONE-HALF TIMES
THE REGULAR RATE AT WHICH THEY ARE EMPLOYED.  THUS BY INCREASING THE
EMPLOYER'S LABOR COSTS BY 50% AT THE END OF THE 40-HOUR WEEK AND BY
GIVING THE EMPLOYEES A 50% PREMIUM FOR ALL EXCESS HOURS, SEC. 7(A)
ACHIEVES ITS DUAL PURPOSE OF INDUCING THE EMPLOYER TO REDUCE THE HOURS
OF WORK AND TO EMPLOY MORE MEN AND OF COMPENSATING THE EMPLOYEES FOR
THE BURDEN OF A LONG WORKWEEK.  OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S.
572, 577-578; WALLING V. HELMERICH & PAYNE, SUPRA, 40; JEWELL RIDGE
COAL CORP. V. LOCAL NO. 6167, ANTE, PP. 161, 167. 

THE KEYSTONE OF SEC. 7(A) IS THE REGULAR RATE OF COMPENSATION.  ON
THAT DEPENDS THE AMOUNT OF OVERTIME PAYMENTS WHICH ARE NECESSARY TO
EFFECTUATE THE STATUTORY PURPOSES.  THE PROPER DETERMINATION OF THAT
RATE IS THEREFORE OF PRIME IMPORTANCE. 

AS WE HAVE PREVIOUSLY NOTED, THE REGULAR RATE REFERS TO THE HOURLY
RATE ACTUALLY PAID THE EMPLOYEE FOR THE NORMAL, NON-OVERTIME WORKWEEK
FOR WHICH HE IS EMPLOYED.  WALLING V. HELMERICH & PAYNE, SUPRA, 40;
UNITED STATES V. ROSENWASSER, 323 U.S. 360, 363.  IN THE CASE OF PIECE
WORK WAGES, THIS REGULAR RATE COINCIDES WITH THE HOURLY RATE ACTUALLY
RECEIVED FOR ALL HOURS WORKED DURING THE PARTICULAR WORKWEEK, SUCH RATE
BEING THE QUOTIENT OF THE AMOUNT RECEIVED DURING THE WEEK DIVIDED BY
THE NUMBER OF HOURS WORKED.  SEE OVERNIGHT MOTOR CO. V. MISSEL, SUPRA,
580.  AS LONG AS THE MINIMUM HOURLY RATES ESTABLISHED BY SEC. 6 ARE
RESPECTED, THE EMPLOYER AND EMPLOYEE ARE FREE TO ESTABLISH THIS REGULAR
RATE AT ANY POINT AND IN ANY MANNER THEY SEE FIT.  THEY MAY AGREE TO
PAY COMPENSATION ACCORDING TO ANY TIME OR WORK MEASUREMENT THEY
DESIRE.  UNITED STATES V. ROSENWASSER, SUPRA.  "BUT THIS FREEDOM OF
CONTRACT DOES NOT INCLUDE THE RIGHT TO COMPUTE THE REGULAR RATE IN A
WHOLLY UNREALISTIC AND ARTIFICIAL MANNER SO AS TO NEGATE THE STATUTORY
PURPOSES."  WALLING V. HELMERICH & PAYNE, SUPRA, 42.  THE REGULAR RATE
BY ITS VERY NATURE MUST REFLECT ALL PAYMENTS WHICH THE PARTIES HAVE
AGREED SHALL BE RECEIVED REGULARLY DURING THE WORKWEEK, EXCLUSIVE OF
OVERTIME PAYMENTS.  IT IS NOT AN ARBITRARY LABEL CHOSEN BY THE PARTIES;
IT IS AN ACTUAL FACT.  ONCE THE PARTIES HAVE DECIDED UPON THE AMOUNT OF
WAGES AND THE MODE OF PAYMENT THE DETERMINATION OF THE REGULAR RATE
BECOMES A MATTER OF MATHEMATICAL COMPUTATION, THE RESULT OF WHICH IS
UNAFFECTED BY ANY DESIGNATION OF A CONTRARY "REGULAR RATE" IN THE WAGE
CONTRACTS. 

HERE IT IS ESTABLISHED THAT UNDER THE NEW WAGE AGREEMENTS THE
STACKERS WILL RECEIVE 70 OR 80 CENTS PER THOUSAND BOARD FEET RICKED OR
STACKED.  TRANSLATED TO AN HOURLY BASIS THIS MEANS THAT THEY WILL
RECEIVE APPROXIMATELY 59 CENTS PER HOUR FOR BOTH REGULAR AND OVERTIME
HOURS.  FN3  THAT AMOUNT IS GUARANTEED THEM UNDER THE TERMS OF THE
CONTRACTS AND ACCURATELY MIRRORS ALL PAYMENTS THAT THEY NORMALLY WILL
RECEIVE FROM THE RESPONDENT DURING THE WORKWEEK.  THIS 59-CENT FIGURE
IS THEREFORE THE AVERAGE REGULAR RATE AT WHICH THE STACKERS ARE
EMPLOYED.  THE INDIVIDUAL REGULAR RATE WHICH MUST BE USED DEPENDS, OF
COURSE, UPON THE NUMBER OF HOURS WORKED AND THE WAGES RECEIVED BY EACH
STACKER DURING THE PARTICULAR WORKWEEK IN QUESTION.  BUT SUCH A RATE IS
THE ONE THAT MUST ENTER INTO ANY CALCULATIONS OF OVERTIME PAYMENTS DUE
UNDER SEC. 7(A).  INSOFAR AS THE WAGE AGREEMENTS FAILED TO PROVIDE FOR
THE PAYMENT OF ONE AND ONE-HALF TIMES THIS REGULAR RATE FOR ALL
OVERTIME HOURS, THEY PLAINLY VIOLATED THE REQUIREMENTS OF SEC. 7(A). 

THE 35-CENT PER HOUR "REGULAR RATE" FIXED BY THE CONTRACTS IS
OBVIOUSLY AN ARTIFICIAL ONE, HOWEVER BONA FIDE IT MAY HAVE BEEN IN
ORIGIN.  EXCEPT IN THE EXTREMELY UNLIKELY SITUATION OF THE PIECE WORK
WAGES FALLING BELOW A 35-CENT PER HOUR FIGURE, THIS "REGULAR RATE" IS
NEVER ACTUALLY PAID.  IN THE NORMAL CASE WHERE THE STACKERS EARN MORE
THAN 35 CENTS PER HOUR ON THE PIECE RATE BASIS DURING NON-OVERTIME
HOURS, THEY ARE GUARANTEED THIS HIGHER FIGURE AND ARE ACTUALLY SO
COMPENSATED.  AND EVEN WHEN THE STACKERS WORK OVERTIME THEY ACTUALLY
RECEIVE AT THE PRESENT TIME AN AVERAGE OF 59 CENTS AN HOUR UNDER THE
GUARANTEED PIECE RATE SYSTEM RATHER THAN ONE AND ONE-HALF TIMES THE 35
CENT "REGULAR RATE." 

THE 35-CENT FIGURE THUS DOES NOT CONSTITUTE THE HOURLY RATE ACTUALLY
PAID FOR THE NORMAL, NON-OVERTIME WORKWEEK.  NOR IS IT USED AS THE
BASIS FOR CALCULATING THE COMPENSATION RECEIVED FOR OVERTIME LABOR.  IT
IS NOT IN FACT THE REGULAR RATE UNDER ANY NORMAL CIRCUMSTANCES.  AND
RELIANCE UPON IT TO PROVE COMPLIANCE WITH SEC. 7(A) ONLY ALLOWS
RESPONDENT TO ESCAPE COMPLETELY THE BURDEN OF A 50% PREMIUM FOR THE
HOURS SO WORKED AND PREVENTS THE STACKERS FROM RECEIVING THE BENEFITS
OF SUCH A PREMIUM AS CONGRESS INTENDED.  THUS BY A MERE LABEL
RESPONDENT WOULD BE ENABLED TO NULLIFY ALL THE PURPOSES FOR WHICH SEC.
7(A) WAS CREATED.  WE ARE UNABLE TO PERCEIVE ANY REASON FOR SANCTIONING
THAT RESULT. 

THIS COURT'S DECISION IN WALLING V. BELO CORP., 316 U.S. 624, LENDS
NO SUPPORT TO RESPONDENT'S POSITION.  THE PARTICULAR WAGE AGREEMENTS
THERE INVOLVED WERE UPHELD BECAUSE IT WAS FELT THAT IN FIXING A RATE OF
67 CENTS AN HOUR THE CONTRACTS DID IN FACT SET THE ACTUAL REGULAR RATE
AT WHICH THE WORKERS WERE EMPLOYED.  THE CASE IS NO AUTHORITY, HOWEVER,
FOR THE PROPOSITION THAT THE REGULAR RATE MAY BE FIXED BY CONTRACT AT A
POINT COMPLETELY UNRELATED TO THE PAYMENTS ACTUALLY AND NORMALLY
RECEIVED EACH WEEK BY THE EMPLOYEES. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED WITH DIRECTIONS TO REMAND
THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.  REVERSED. 

FN1  52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. 

FN2  AT THE TIME THESE CONTRACTS WERE MADE THE MINIMUM WAGE FOR THE
TIMBER PRODUCTS INDUSTRY HAD BEEN FIXED AT 35 CENTS AN HOUR IN AN ORDER
ISSUED BY THE ADMINISTRATOR. 

FN3  THIS 59 CENTS AN HOUR AVERAGE IS BASED UPON A SIX-MONTH STUDY OF
WORK ACTUALLY DONE BY THE STACKERS AND THERE IS NO SUBSTANTIAL BASIS
FOR ASSUMING THAT IT IS INCORRECT OR THAT THE AVERAGE IS LIKELY TO VARY
APPRECIABLY IN THE FUTURE. 

FOR OPINIONS OF MR. JUSTICE FRANKFURTER, CONCURRING, SEE POST, P.
433; AND MR. CHIEF JUSTICE STONE, DISSENTING, SEE POST, P. 434. 
..END :

















WALLING V. HARNISCHFEGER CORP., 325 U.S. 427 


NO. 956.  ARGUED MAY 1, 1945.  - DECIDED JUNE 4, 1945.  - 145 F.2D 589,
REVERSED. 


A WAGE AGREEMENT, ARRIVED AT BY COLLECTIVE BARGAINING, PROVIDED FOR
COMPENSATION AT A SPECIFIED BASE RATE OR "REGULAR RATE."  ON "TIME
STUDIED" JOBS, "INCENTIVE BONUSES" OR "PIECEWORK EARNINGS" NORMALLY
RESULTED IN EMPLOYEES RECEIVING COMPENSATION, EXCLUSIVE OF OVERTIME
PAYMENTS, AT A RATE HIGHER THAN THE BASE RATE.  THE HOURLY RATE
ACTUALLY PAID ON MANY JOBS NOT "TIME STUDIED" WAS AT LEAST 20% HIGHER
THAN THE BASE.  HELD: 

1.  AS TO EMPLOYEES WHO RECEIVED HOURLY RATES HIGHER THAN THE BASE
RATE, THE COMPUTATION OF OVERTIME ON THE BASIS OF SUCH RATE RATHER THAN
ON THE RATE ACTUALLY RECEIVED VIOLATED SEC. 7(A) OF THE FAIR LABOR
STANDARDS ACT.  P. 430. 

2.  AS TO EMPLOYEES WHO RECEIVED INCENTIVE BONUSES, SUCH PAYMENTS
MUST ENTER INTO THE COMPUTATION OF THE STATUTORY REGULAR RATE FOR
PURPOSES OF THE OVERTIME PROVISIONS OF SEC. 7(A), REGARDLESS OF ANY
CONTRACT PROVISION TO THE CONTRARY.  P. 431. 

3.  WHERE, AS HERE, THE FACTS DO NOT PERMIT IT, THE COURT CANNOT
ARBITRARILY DIVIDE BONUSES OR PIECE-WORK WAGES INTO REGULAR AND
OVERTIME SEGMENTS, THEREBY CREATING ARTIFICIAL COMPLIANCE WITH SEC.
7(A).  P. 432. 

4.  IT IS NOT SUFFICIENT THAT THE EMPLOYER PAYS FOR OVERTIME A
PREMIUM WHICH MAKES THE OVERTIME RATE SOMEWHAT HIGHER THAN THE PIECE
WORK EARNINGS PER HOUR; SECTION 7(A) REQUIRES THAT THAT PREMIUM BE NOT
LESS THAN 50% OF THE ACTUAL HOURLY RATE RECEIVED FROM ALL REGULAR
SOURCES.  P. 432. 

5.  WHERE THE CORRECT OVERTIME COMPENSATION CANNOT BE DETERMINED
UNTIL AFTER THE REGULAR PAYDAY, SEC. 7(A) REQUIRES ONLY THAT THE
EMPLOYEE RECEIVE SUCH COMPENSATION AS SOON AS CONVENIENT OR PRACTICABLE
UNDER THE CIRCUMSTANCES.  P. 432. 

WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U.S. DEPARTMENT
OF LABOR, V. HARNISCHFEGER CORPORATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 324 U.S. 837, TO REVIEW THE REVERSAL OF AN ORDER OF THE
DISTRICT COURT, 54 F.SUPP.  326, ENJOINING VIOLATIONS OF THE FAIR LABOR
STANDARDS ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

HERE, AS IN WALLING V. YOUNGERMAN-REYNOLDS HARDWOOD CO., ANTE, P.
419, WE ARE CONCERNED WITH THE PROBLEM OF WHETHER A PARTICULAR TYPE OF
WAGE AGREEMENT MEETS THE REQUIREMENTS OF SECTION 7(A) OF THE FAIR LABOR
STANDARDS ACT OF 1938.  FN1 

RESPONDENT IS A WISCONSIN CORPORATION ENGAGED IN PRODUCING ELECTRICAL
PRODUCTS FOR INTERSTATE COMMERCE.  ABOUT ONE-HALF OF RESPONDENT'S
PRODUCTION EMPLOYEES, CALLED INCENTIVE OR PIECE WORKERS, ARE INVOLVED
IN THIS CASE. 

AS A RESULT OF COLLECTIVE BARGAINING BY THEIR UNION, THESE EMPLOYEES
ENTERED INTO A COLLECTIVE AGREEMENT WITH RESPONDENT WHEREBY THEY ARE
EACH PAID A BASIC HOURLY RATE PLUS AN "INCENTIVE BONUS" OR "PIECEWORK
EARNINGS."  THE VARIOUS JOBS PERFORMED BY THESE INCENTIVE WORKERS ARE
"TIME STUDIED" BY THE MANAGEMENT.  THE TIME WHICH THE JOB IS SHOWN TO
CONSUME IS MULTIPLIED BY A "STANDARD EARNING RATE"  FN2  PER UNIT OF
TIME.  THE AMOUNT SO OBTAINED IS KNOWN AS THE "PRICE" PLACED ON THAT
JOB.  WHEN AN EMPLOYEE IS GIVEN WORK ON A JOB THAT HAS BEEN SO PRICED,
HE RECEIVES A JOB CARD BEARING THE PRICE. 

THE WORKER IS PAID HIS AGREED BASE OR HOURLY RATE (RANGING FROM 55
CENTS TO $1.05 PER HOUR) FOR THE TIME WHICH HE TAKES TO PERFORM THE
JOB.  IF THE JOB PRICE EXCEEDS THIS BASE PAY, HE ULTIMATELY RECEIVES
THE DIFFERENCE BETWEEN THE TWO AMOUNTS.  THE EXCESS OF THE JOB PRICE
OVER THE HOURLY EARNINGS IS KNOWN AS AN "INCENTIVE BONUS" OR "PIECEWORK
EARNINGS."  THUS THE SOONER A JOB IS COMPLETED THE GREATER WILL BE THIS
INCENTIVE BONUS.  WHEN THE JOB PRICE IS SMALLER THAN THE HOURLY
EARNINGS THE EMPLOYEE RECEIVES ONLY THE HOURLY RATE FOR THE TIME
WORKED, BEING ASSURED OF THAT RATE REGARDLESS OF HIS EFFICIENCY OR
SPEED.  ABOUT 98.5% OF THE INCENTIVE WORKERS, HOWEVER, WORK WITH
SUFFICIENT EFFICIENCY AND SPEED TO EARN COMPENSATION OVER AND ABOVE
THEIR BASE PAY.  THESE INCENTIVE BONUSES WERE FOUND BY THE DISTRICT
COURT TO FORM ABOUT 22% OF THE TOTAL COMPENSATION RECEIVED EACH PAY-DAY
BY THESE WORKERS, EXCLUSIVE OF OVERTIME PAYMENTS, ALTHOUGH RESPONDENT
CLAIMS THAT THE BONUSES VARY FROM 5% TO 29% OF EACH PAYROLL. 

ON MANY JOBS WHICH HAVE NOT BEEN "TIME STUDIED" THE RESPONDENT HAS
AGREED TO PAY, AND DOES PAY, EACH INCENTIVE WORKER AN HOURLY RATE AT
LEAST 20% HIGHER THAN HIS BASIC HOURLY RATE.  AND WHEN AN INCENTIVE
WORKER IS TEMPORARILY ASSIGNED TO "NON-INCENTIVE" WORK HE IS PAID AT
LEAST 20% MORE THAN HIS BASIC HOURLY RATE.  MOREOVER, VACATION PAY IS
BASED ON AN EMPLOYEE'S AVERAGE HOURLY STRAIGHT TIME EARNINGS OVER A
THREE-MONTH PERIOD AND NOT ON HIS BASE RATE. 

THESE INCENTIVE WORKERS FREQUENTLY WORK IN EXCESS OF THE STATUTORY
MAXIMUM WORKWEEK.  FOR THESE EXTRA HOURS THEY RECEIVE A PREMIUM OF 50%
OF THE BASIC HOURLY RATE, WHICH DOES NOT REFLECT THE INCENTIVE BONUSES
RECEIVED.  LIKEWISE, WHEN INCENTIVE WORKERS ARE WORKING ON JOBS THAT
HAVE NOT BEEN "TIME STUDIED" OR ARE TEMPORARILY DOING "NON-INCENTIVE"
WORK THEY RECEIVE OVERTIME PAY ON THE BASIS OF THEIR BASIC HOURLY RATES
RATHER THAN ON THE 20% HIGHER HOURLY RATES ACTUALLY PAID THEM DURING
THE NON-OVERTIME HOURS. 

THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF
LABOR BROUGHT THIS ACTION TO COMPEL THE RESPONDENT TO COMPLY WITH THE
PROVISIONS OF SEC. 7(A) OF THE ACT.  IN DEFENSE, RESPONDENT POINTED TO
THE PROVISION IN THE COLLECTIVE CONTRACT TO THE EFFECT THAT "THE
PARTIES AGREE THAT, FOR ALL PURPOSES, THE REGULAR RATE OF PAY AT WHICH
EACH EMPLOYEE WHO PARTICIPATES IN AN INCENTIVE PLAN IS EMPLOYED, IS THE
BASE RATE OF EACH SUCH EMPLOYEE."  THE DISTRICT COURT HELD THAT THE
RESPONDENT WAS VIOLATING THE ACT BY EXCLUDING FROM THE COMPUTATION OF
OVERTIME THE PIECE RATE ACTUALLY PAID.  54 F.SUPP.  326.  THE SEVENTH
CIRCUIT COURT OF APPEALS REVERSED THAT JUDGMENT BY A DIVIDED VOTE.  145
F.2D 589. 

OUR ATTENTION HERE IS FOCUSED UPON A DETERMINATION OF THE REGULAR
RATE OF COMPENSATION AT WHICH THE INCENTIVE WORKERS ARE EMPLOYED.  TO
DISCOVER THAT RATE, AS IN THE YOUNGERMAN-REYNOLDS CASE, WE LOOK NOT TO
CONTRACT NOMENCLATURE BUT TO THE ACTUAL PAYMENTS, EXCLUSIVE OF THOSE
PAID FOR OVERTIME, WHICH THE PARTIES HAVE AGREED SHALL BE PAID DURING
EACH WORKWEEK. 

IT IS EVIDENT THAT ALL THE INCENTIVE WORKERS RECEIVE A GUARANTEED
BASIC HOURLY PAY AS A MINIMUM.  AS TO THOSE WHO RECEIVE NO REGULAR
ADDITIONAL PAYMENTS DURING THEIR NON-OVERTIME HOURS THE RESPONDENT
COMPLIES FULLY WITH SEC. 7(A) BY PAYING THEM ONE AND ONE-HALF TIMES THE
BASIC HOURLY RATE FOR ALL OVERTIME HOURS.  BUT THE VAST MAJORITY OF THE
EMPLOYEES DO RECEIVE REGULAR THOUGH FLUCTUATING AMOUNTS FOR WORK DONE
DURING THEIR NON-OVERTIME HOURS IN ADDITION TO THEIR BASIC HOURLY PAY. 

(1)  THOSE WHO RECEIVE HOURLY RATES AT LEAST 20% HIGHER THAN THEIR
GUARANTEED BASE RATES CLEARLY ARE PAID A REGULAR RATE IDENTICAL WITH
THE HIGHER RATE AND THE FAILURE OF RESPONDENT TO PAY THEM FOR OVERTIME
LABOR ON THE BASIS OF SUCH A RATE IS A PLAIN VIOLATION OF THE TERMS AND
SPIRIT OF SEC. 7(A).  NO CONTRACT DESIGNATION OF THE BASE RATE AS THE
"REGULAR RATE" CAN NEGATIVE THE FACT THAT THESE EMPLOYEES DO IN FACT
REGULARLY RECEIVE THE HIGHER RATE.  TO COMPUTE OVERTIME COMPENSATION
FROM THE LOWER AND UNRECEIVED RATE IS NOT ONLY UNREALISTIC BUT IS
DESTRUCTIVE OF THE LEGISLATIVE INTENT.  A FULL 50% INCREASE IN LABOR
COSTS AND A FULL 50% WAGE PREMIUM, WHICH WERE MEANT TO FLOW FROM THE
OPERATION OF SEC. 7(A), ARE IMPOSSIBLE OF ACHIEVEMENT UNDER SUCH A
COMPUTATION. 

(2)  THOSE WHO RECEIVE INCENTIVE BONUSES IN ADDITION TO THEIR
GUARANTEED BASE PAY CLEARLY RECEIVE A GREATER REGULAR RATE THAN THE
MINIMUM BASE RATE.  FN3  IF THEY RECEIVED ONLY PIECE WORK WAGES IT IS
INDISPUTABLE THAT THE REGULAR RATE WOULD BE THE EQUIVALENT OF THE
TRANSLATION OF THOSE WAGES INTO AN HOURLY RATE.  UNITED STATES V.
ROSENWASSER, 323 U.S. 360.  IT FOLLOWS THAT PIECE WORK WAGES FORMING
ONLY A PART OF THE NORMAL WEEKLY INCOME MUST ALSO BE AN INGREDIENT OF
THE STATUTORY REGULAR RATE.  PIECE WORK WAGES DO NOT ESCAPE THE FORCE
OF SEC. 7(A) MERELY BECAUSE THEY ARE PAID IN ADDITION TO A MINIMUM
HOURLY PAY GUARANTEED BY CONTRACT.  INDEED, FROM ANOTHER VIEWPOINT, THE
INCENTIVE EMPLOYEES SO COMPENSATED ARE IN FACT PAID ENTIRELY ON A PIECE
WORK BASIS WITH A MINIMUM HOURLY GUARANTY.  FN4  THE CONCLUSION THAT
ONLY THE MINIMUM HOURLY RATE CONSTITUTES THE REGULAR RATE OPENS AN EASY
PATH FOR EVADING THE PLAIN DESIGN OF SEC. 7(A).  WE CANNOT SANCTION
SUCH A PATENT DISREGARD OF STATUTORY DUTIES. 

IN THIS INSTANCE 98.5% OF THE INCENTIVE EMPLOYEES RECEIVE INCENTIVE
BONUSES IN ADDITION TO THEIR GUARANTEED HOURLY WAGES, DEMONSTRATING
THAT SUCH BONUSES ARE A NORMAL AND REGULAR PART OF THEIR INCOME.  ONCE
THE PARTIES AGREE THAT THESE EMPLOYEES SHOULD RECEIVE SUCH PIECE WORK
WAGES, THOSE WAGES AUTOMATICALLY ENTER INTO THE COMPUTATION OF THE
REGULAR RATE FOR PURPOSES OF SEC. 7(A) REGARDLESS OF ANY CONTRACT
PROVISION TO THE CONTRARY.  MOREOVER, WHERE THE FACTS DO NOT PERMIT IT,
WE CANNOT ARBITRARILY DIVIDE BONUSES OR PIECE WORK WAGES INTO REGULAR
AND OVERTIME SEGMENTS, THEREBY CREATING AN ARTIFICIAL COMPLIANCE WITH
SEC. 7(A). 

IT MATTERS NOT HOW SIGNIFICANT THE BASIC HOURLY RATES MAY BE IN
DETERMINING THE COMPENSATION IN SITUATIONS WHERE INCENTIVE BONUSES ARE
NOT PAID.  WHEN EMPLOYEES DO EARN MORE THAN THE BASIC HOURLY RATES
BECAUSE OF THE OPERATION OF THE INCENTIVE BONUS PLAN THE BASIC RATES
LOSE THEIR SIGNIFICANCE IN DETERMINING THE ACTUAL RATE OF
COMPENSATION.  NOR IS IT OF CONTROLLING IMPORTANCE THAT THE RESPONDENT
NOW PAYS A PREMIUM FOR OVERTIME EMPLOYMENT SO AS TO MAKE THE OVERTIME
RATE SOMEWHAT ABOVE THE PIECE WORK EARNINGS PER HOUR.  FN5  UNTIL THAT
PREMIUM IS 50% OF THE ACTUAL HOURLY RATE RECEIVED FROM ALL REGULAR
SOURCES, SEC. 7(A) HAS NOT BEEN SATISFIED. 

RESPONDENT ALSO POINTS TO THE FACT THAT THE INCENTIVE BONUSES ARE
OFTEN NOT DETERMINED OR PAID UNTIL WEEKS OR EVEN MONTHS AFTER THE SEMI
MONTHLY PAY-DAYS, DUE TO THE NATURE OF THE "PRICED" JOBS.  BUT SEC.
7(A) DOES NOT REQUIRE THE IMPOSSIBLE.  IF THE CORRECT OVERTIME
COMPENSATION CANNOT BE DETERMINED UNTIL SOME TIME AFTER THE REGULAR PAY
PERIOD, THE EMPLOYER IS NOT THEREBY EXCUSED FROM MAKING THE PROPER
COMPUTATION AND PAYMENT.  SECTION 7(A) REQUIRES ONLY THAT THE EMPLOYEES
RECEIVE A 50% PREMIUM AS SOON AS CONVENIENT OR PRACTICABLE UNDER THE
CIRCUMSTANCES. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED AND THAT OF THE DISTRICT
COURT IS AFFIRMED.  REVERSED. 

FN1  52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. 

FN2  THE "STANDARD EARNING RATE" IS THE HOURLY RATE OF PAY WHICH
WORKERS IN THE MILWAUKEE, WISCONSIN, DISTRICT RECEIVE FOR THAT TYPE OF
WORK.  THIS "STANDARD EARNING RATE" IS NOT THE BASE RATE OF ANY WORKER
IN RESPONDENT'S PLANT, NOR IS IT THE AVERAGE HOURLY EARNED RATE OF ANY
WORKER. 

FN3  THIS IS SHOWN BY THE FOLLOWING EXAMPLE.  AN INCENTIVE WORKER IS
ASSIGNED A BASIC RATE OF $1 AN HOUR AND WORKS 50 HOURS A WEEK ON 15
"TIME STUDIED" JOBS THAT HAVE EACH BEEN GIVEN A "PRICE" OF $5.  HE
COMPLETES THE 15 JOBS IN THE 50 HOURS.  HE RECEIVES $50 BASIC PAY PLUS
$25 INCENTIVE PAY (THE DIFFERENCE BETWEEN THE BASE PAY AND 15 JOB
PRICES).  IN ADDITION, THE WORKER RECEIVES $5 EXTRA FOR THE 10 OVERTIME
HOURS.  THIS IS COMPUTED ON THE BASIS OF 50% OF THE $1 BASE RATE, OR 50
CENTS AN HOUR PREMIUM.  ACTUALLY, HOWEVER, THIS WORKER RECEIVES
COMPENSATION DURING THE WEEK AT THE ACTUAL RATE OF $1.50 AN HOUR ($75
DIVIDED BY 50 HOURS) AND THE OVERTIME PREMIUM SHOULD BE COMPUTED ON
THAT BASIS, GIVING THE WORKER A PREMIUM OF 75 CENTS AN HOUR OR $7.50
FOR THE 10 OVERTIME HOURS. 

FN4  THUS, IN THE EXAMPLE GIVEN IN FOOTNOTE 3, THE WORKER EARNS $75
DURING THE WEEK EXCLUSIVE OF THE OVERTIME PREMIUM.  THIS $75 MAY BE
CONSIDERED EITHER (1) THE AMOUNT RECEIVED FOR COMPLETING THE 15
"PRICED" JOBS WITH A $50 MINIMUM GUARANTY OR (2) THE SUM OF THE $50
HOURLY PAY AND THE $25 PIECE WORK PAY. 

FN5  THE OVERTIME RATE NOW PAID AMOUNTS TO ABOUT ONE AND ONE-THIRD OR
ONE AND ONE-FOURTH THE REGULAR HOURLY RATE OF ACTUAL EARNINGS. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE FAIR LABOR STANDARDS ACT, 52 STAT. 1060, 29 U.S.C. SEC. 201 ET
SEQ., DOES NOT PROHIBIT EMPLOYMENT AT PIECE-WORK RATES.  IT MERELY
REQUIRES THAT PIECE-WORK EARNINGS BE CONVERTED TO AN HOURLY BASIS FOR
DETERMINING THE MINIMUM AND OVERTIME REQUIREMENTS OF THAT ACT.  UNITED
STATES V. ROSENWASSER, 323 U.S. 360.  NOR DOES THE ACT BAR AN AGREEMENT
ESTABLISHING AN HOURLY "REGULAR RATE" THAT DOES NOT FALL SHORT OF THE
STATUTORY MINIMUM EVEN THOUGH IT BE COMPLICATED BY A GUARANTEED WEEKLY
LUMP SUM WAGE ADAPTED TO THE CIRCUMSTANCES OF A PARTICULAR EMPLOYMENT,
PROVIDED IT IS NOT A MERE ARTIFICE UNRELATED TO WAGE-EARNING
ACTUALITIES.  WALLING V. BELO CORP., 316 U.S. 624; WALLING V. HELMERICH
& PAYNE, 323 U.S. 37.  ACCORDINGLY, THE FAIR LABOR STANDARDS ACT DOES
NOT PRECLUDE A WAGE AGREEMENT WHEREBY PIECE-RATE PAYMENTS ARE RELATED,
FAIRLY AND NOT EVASIVELY, PARTLY TO REGULAR HOURS OF WORK AND PARTLY TO
OVERTIME.  PIECE RATES NEED NOT NECESSARILY BE SO ADJUSTED THAT THEY
CANNOT FAIRLY BE DESIGNED AS PART OF THE OVERTIME BUT MUST NECESSARILY
HELP "LOAD" THE REGULAR HOURLY WAGE. 

BUT A PROPERLY APPORTIONED OVERTIME FUNCTION FOR PIECE WORK SHOULD BE
CLEARLY INDICATED AS SUCH IN THE EMPLOYMENT CONTRACT.  NO DOUBT A LAW
WHICH, WHILE COVERING PIECE RATES, SPEAKS IN TERMS OF HOURLY RATES
PRESENTS DIFFICULTIES BOTH FOR THOSE CHARGED WITH THE LAW'S ENFORCEMENT
AND FOR THOSE UNDER DUTY TO OBEY IT.  BUT IF A WAGE AGREEMENT IS TO
ESCAPE THE OBVIOUS ARITHMETIC WAY OF CALCULATING HOURLY RATES BASED ON
PIECE-WORK RATES, BY DIVIDING THE TOTAL EARNINGS BY THE HOURS WORKED,
IT IS NOT TOO MUCH TO REQUIRE THAT THE FUNCTION OF PIECE RATES AS AN
OVERTIME FACTOR, IF SUCH THEY BE, BE CLEARLY FORMULATED.  THE CONTRACT
SHOULD LEAVE NO SUCH DUBIETY AS TO THE ROLE OF THE PIECE RATE TO THE
REGULAR HOURLY RATE AS THE TWO ARRANGEMENTS BEFORE US.  IT SHOULD NOT
BE LEFT TO COURTS TO WORK OUT A HYPOTHETICAL MATHEMATICAL
INTERPRETATION WHICH, IF IT CORRESPONDED WITH THE ACTUAL ARRANGEMENT,
COULD SATISFY THE STATUTE. 

MR. CHIEF JUSTICE STONE, DISSENTING. 

I THINK THE JUDGMENT IN BOTH THESE CASES SHOULD BE AFFIRMED AS TO ALL
PIECE WORK EMPLOYEES AND IN NO. 956 THE JUDGMENT SHOULD BE REVERSED
ONLY AS TO EMPLOYEES WORKING EXCLUSIVELY ON THE HOURLY WAGE BASIS. 

THE RESPONDENT IN EACH OF THESE CASES HAS ENTERED INTO A WAGE
CONTRACT WITH ITS EMPLOYEES, WHICH PLACES IN THEIR PAY ENVELOPES A
WEEKLY WAGE IN EXCESS OF THE MINIMUM HOURLY WAGE RATE WHICH THE FAIR
LABOR STANDARDS ACT PRESCRIBES FOR THE WORK WEEK OF FORTY HOURS AND THE
ADDITIONAL OVERTIME HOURS WHICH THEY WORK IN EACH WEEK.  THERE IS NO
CONTENTION THAT THE CONTRACTS WERE NOT ENTERED INTO FAIRLY AND IN A
GOOD FAITH EFFORT TO SATISFY ALL THE REQUIREMENTS OF THE LAW AND TO
PROVIDE THE EMPLOYEES WITH A WAGE HIGHER THAN THE PREVAILING RATE OF
PAY FOR LIKE HOURS OF WORK, WITH TIME AND A HALF FOR OVERTIME.  THE
CONTRACT INVOLVED IN NO. 956 WAS THE RESULT OF COLLECTIVE BARGAINING
BETWEEN THE RESPONDENT EMPLOYER AND THE C.I.O. UNION OF ITS EMPLOYEES. 
BOTH EMPLOYERS AND EMPLOYEES DESIRE TO CONTINUE THE CONTRACTS, THE
EMPLOYERS BECAUSE THE EMPLOYEES ARE SATISFIED AND LABOR DISPUTES WILL
CONSEQUENTLY BE AVOIDED, THE EMPLOYEES BECAUSE THEY RECEIVE A LARGER
WAGE THAN IF THEY WORKED AT PREVAILING HOURLY RATES OF PAY WITH TIME
AND A HALF FOR OVERTIME AS THE STATUTE PRESCRIBES.    UNDER EACH
CONTRACT THE EMPLOYEES RECEIVE FOR THE FIRST FORTY HOURS OF THE WORK
WEEK A GUARANTEED MINIMUM HOURLY WAGE WHICH IS EQUAL TO OR GREATER THAN
THE MINIMUM WAGE PRESCRIBED BY THE STATUTE.  FOR OVERTIME THEY RECEIVE
ONE AND ONE-HALF TIMES THE HOURLY WAGE AND IN ADDITION A BONUS, THE
AMOUNT OF WHICH IS DEPENDENT UPON THE AMOUNT OF PIECE WORK WHICH THEY
DO DURING THE WORK WEEK.  THE BONUS CONSTITUTES AN ADDITION TO THE
HOURLY WAGE, BOTH REGULAR AND OVERTIME, SO THAT IN FACT THE
COMPENSATION BOTH FOR TIME AND OVERTIME IS GREATER THAN THE STATUTE
REQUIRES.  THE ONLY QUESTION INVOLVED IN EITHER CASE IS WHETHER THERE
IS ANYTHING IN THE FAIR LABOR STANDARDS ACT WHICH COMPELS THE BONUS
PAYMENT TO BE ADDED TO THE STIPULATED TIME AND OVERTIME HOURLY WAGE IN
ANY DIFFERENT PROPORTIONS THAN THE WAGE ITSELF IS DISTRIBUTED. 

THE GOVERNMENT CONCEDES THAT THE STATUTE DOES NOT REQUIRE RESPONDENTS
TO PUT THEIR PIECE WORKERS ON HOURLY WAGE RATES AND THAT THEY MAY
CONTINUE TO PAY PIECE WORK RATES AND COMPLY WITH SEC. 7 OF THE FAIR
LABOR STANDARDS ACT, PROVIDED ONLY THAT PIECE WORK EARNINGS BE
"TRANSLATED OR REDUCED BY COMPUTATION TO AN HOURLY BASIS FOR THE SOLE
PURPOSE OF DETERMINING WHETHER THE STATUTORY REQUIREMENTS HAVE BEEN
FULFILLED."  SUCH IS THE EFFECT OF OUR DECISION IN UNITED STATES V.
ROSENWASSER, 323 U.S. 360, 364. 

THE METHOD OF TRANSLATION URGED BY THE GOVERNMENT AND ADOPTED BY THE
COURT IS TO ASCERTAIN THE AVERAGE HOURLY RATE OF PAY BY DIVIDING THE
TOTAL WEEKLY PIECE WORK WAGE BY THE NUMBER OF HOURS WORKED.  THE HOURLY
RATE THUS OBTAINED, MULTIPLIED BY THE TOTAL NUMBER OF HOURS WORKED PER
WEEK, PLUS ONE-HALF OF THE HOURLY RATE MULTIPLIED BY THE NUMBER OF WORK
HOURS IN EXCESS OF FORTY WILL, IT IS SAID, GIVE THE WEEKLY WAGE WHICH
THE FAIR LABOR STANDARDS ACT REQUIRES RESPONDENTS TO PAY TO THEIR PIECE
WORK EMPLOYEES.  THE ADOPTION OF THIS METHOD IN THE PRESENT CASES
REQUIRES THE PAYMENT OF AN ADDITIONAL AMOUNT AS OVERTIME COMPENSATION
WHICH, ACCORDING TO THE COURT'S THEORY, IS NOT COMPENSATED BY THE
WEEKLY PIECE WORK WAGE, HOWEVER HIGH IT MAY BE. 

THIS CONCLUSION IS BASED ON TWO MISTAKEN ASSUMPTIONS.  ONE IS THAT
THE WEEKLY PIECE WORK WAGE, HOWEVER HIGH, CANNOT BE TAKEN TO INCLUDE
ANY OF THE WAGE DIFFERENTIAL WHICH THE ACT REQUIRES TO BE PAID FOR
OVERTIME HOURS.  THE OTHER IS THAT THE STATUTE REQUIRES THAT THE
EMPLOYER, WHO PAYS TO HIS PIECE TIME EMPLOYEES A LUMP SUM WEEKLY WAGE
MORE THAN ENOUGH TO PAY THE HOURLY MINIMUM RATE PLUS TIME AND A HALF
FOR OVERTIME, MUST NEVERTHELESS TREAT THE TOTAL WAGE AS COMPRISING ONLY
THE HOURLY WAGE PAID FOR ALL THE HOURS WORKED, WITHOUT INCLUDING
ANYTHING FOR OVERTIME.  IN SHORT, THE CONTENTION IS THAT THE STATUTE
REQUIRES THE DISTRIBUTION OF THE PIECE WORK BONUS BETWEEN THE FIRST
FORTY HOURS WORKED AND THE OVERTIME HOURS IN SUCH PROPORTIONS AS WOULD
VIOLATE THE STATUTORY REQUIREMENT FOR THE PAYMENT OF AN INCREASED RATE
FOR THE OVERTIME HOURS.  IT THUS EXCLUDES THE POSSIBILITY THAT THE
BONUS COULD BE DISTRIBUTED IN PROPORTIONS WHICH WOULD COMPENSATE THE
FIRST FORTY HOURS AT ANY HOURLY WAGE ABOVE THE MINIMUM STATUTORY
REQUIREMENT AND COMPENSATE FOR THE OVERTIME HOURS AT ONE AND ONE-HALF
TIMES THAT RATE. 

TO ASCERTAIN WHETHER THE PIECE WORK RATE CAN BE LAWFUL COMPENSATION
FOR TIME AND OVERTIME FOR WHICH IT IS PAID, THE COURT, LIKE THE
GOVERNMENT, STARTS WITH THE ASSUMPTION THAT IT IS UNLAWFUL, NOT BECAUSE
IT IS INADEQUATE IN AMOUNT BUT BECAUSE THE BONUS WAS EITHER NOT
INTENDED TO BE OR CANNOT BE TAKEN TO BE AN APPROPRIATE INCREASE IN THE
GUARANTEED OVERTIME COMPENSATION, AS WELL AS AN INCREASE IN THE
GUARANTEED, REGULAR HOURLY RATE OF PAY.  BY ASSUMING THAT A WAGE, AMPLE
TO SATISFY MINIMUM DEMANDS OF THE STATUTE FOR TIME AND OVERTIME, IS
NEVERTHELESS INTENDED TO VIOLATE THE STATUTE BY ADDING ALL OF THE BONUS
TO THE AVERAGE HOURLY WAGE ALONE, THE CONCLUSION IS REACHED THAT NO
INCREASE IN OVERTIME COMPENSATION HAS BEEN PAID FROM THE BONUS.  THE
WAGE MUST THEREFORE BE CORRESPONDINGLY INCREASED IN ORDER TO GIVE ADDED
COMPENSATION FOR OVERTIME. 

UNDOUBTEDLY ONE COULD TRANSLATE A PIECE WORK WAGE INTO AN HOURLY RATE
WHICH WOULD VIOLATE THE STATUTE BY TREATING THE PIECE WORK WAGE AS
COMPENSATING FOR THE HOURLY RATE WITHOUT TIME AND A HALF FOR OVERTIME. 
BUT THAT HAS NOT BEEN DONE BY THE PARTIES HERE.  SUCH IS NOT THE
NECESSARY EFFECT OF THE BONUS PAYMENT, AND THERE IS NO GROUND FOR
ASSUMING THAT SUCH WAS INTENDED.  THE FACT THAT THE BONUS IS TO BE
ADDED TO A GUARANTEED MINIMUM HOURLY RATE FOR BOTH TIME AND OVERTIME
WOULD SEEM TO ESTABLISH THE CONTRARY.  CERTAINLY NO EMPLOYEE UNDER SUCH
A CONTRACT COULD DOUBT THAT ITS PURPOSE AND FUNCTION IS TO PAY HIM FOR
TIME AND OVERTIME AT A RATE ABOVE THE STATUTORY MINIMUM.  EVEN THOUGH
THE BONUS PAYMENTS WERE NOT THUS LABELED, WHERE A LAWFUL END MAY BE
ATTAINED BY A LAWFUL MEANS WE ARE NOT FREE TO ASSUME THAT IT WAS
ATTAINED BY UNLAWFUL MEANS. 

THE PURPOSE OF THE FAIR LABOR STANDARDS ACT WAS TO INSURE TO EVERY
WORKER TO WHOM IT APPLIES A MINIMUM HOURLY WAGE AND A FIFTY PERCENT
HIGHER WAGE FOR HIS OVERTIME HOURS.  IT WAS NOT TO FORCE INCREASES IN
WAGES PAID FOR TIME AND OVERTIME WHICH ARE ALREADY ABOVE THE STATUTORY
MINIMUM.  ONE MAY SEARCH THE STATUTE AND ITS LEGISLATIVE HISTORY IN
VAIN FOR ANY HINT THAT EMPLOYERS WHO, LIKE RESPONDENTS, ARE PAYING IN
EXCESS OF THE STATUTORY MINIMUM WAGE FOR TIME AND OVERTIME, ARE
COMPELLED TO INCREASE THE WAGE MERELY BECAUSE THEY HAVE FAILED TO LABEL
THE PAY ENVELOPE AS CONTAINING THE WAGE FOR BOTH TIME AND OVERTIME. 

THE FALLACY OF THE POSITION NOW TAKEN BECOMES APPARENT AT ONCE UPON
COMPARISON OF THE FOLLOWING EXAMPLES, IN EACH OF WHICH THE EMPLOYEE
WORKS FIFTY HOURS A WEEK, TEN OF WHICH BEING OVERTIME MUST UNDER THE
STATUTE BE COMPENSATED AT AN HOURLY WAGE RATE OF ONE AND A HALF TIMES
THAT PAID FOR THE FIRST FORTY HOURS. 

EXAMPLE 1:  THE EMPLOYEE WORKS UPON AN HOURLY BASIS AT THE RATE OF
$1.00 PER HOUR.  HIS WAGE, AS THE STATUTE COMMANDS, WOULD BE $40.00 FOR
THE FIRST FORTY HOURS OF HIS EMPLOYMENT AND $15.00 FOR THE TEN HOURS OF
OVERTIME AT THE STATUTORY RATE OF ONE AND ONE-HALF TIMES THE AGREED
HOURLY RATE, MAKING A TOTAL WEEKLY WAGE OF $55.00. 

EXAMPLE 2:  THE EMPLOYMENT CONTRACT, AS IN THE PRESENT CASES,
PROVIDES THAT THE EMPLOYER GUARANTEE THE PAYMENT OF A FIXED MINIMUM
HOURLY RATE OF PAY EQUAL TO OR GREATER THAN THE STATUTORY MINIMUM PLUS
ONE AND A HALF TIMES THAT RATE FOR OVERTIME, PLUS SUCH ADDITIONAL
AMOUNT AS THE EMPLOYEE MAY EARN ON A PIECE WORK RATE.  IF THE
GUARANTEED HOURLY RATE WERE $1.00 AN HOUR, AND THE EMPLOYEE'S EARNINGS
AT THE PIECE WORK RATE WERE $66.00, HIS WAGE WOULD BE THE WEEKLY
GUARANTEED MINIMUM OF $55.00 PLUS THE $11.00 PIECE WORK BONUS AT THE
PIECE WORK RATE, OR $66.00 IN ALL.  HIS WEEKLY WAGE ON THE HOURLY BASIS
WOULD BE CALCULATED AS FOLLOWS: 

MINIMUM $1.00 PER HOUR FOR FORTY HOURS .................      $40.00 

BONUS ADDITION 20[ PER HOUR FOR FORTY HOURS ............        8.00
GUARANTEED MINIMUM OVERTIME $1.50, TEN HOURS  ...  $R15.00 

BONUS ADDITION FOR OVERTIME 30[ AN HOUR FOR TEN HOURS ...       3.00

                                        -------------- 

TOTAL .................................................$66.00  FN1 

FN1  IF A EQUALS THE HOURLY RATE THE FOLLOWING FORMULA WOULD APPLY TO
THE FIFTY HOUR WEEK IN WHICH THE PIECE WORK WAGE IS $66.00:

                     40A   (1 1/2A X 10)   $66.00

                                      55A   66.00

           A   $1.20, THE HOURLY RATE FOR FORTY HOURS. 

       1 1/2A   $1.80, THE HOURLY RATE FOR OVERTIME HOURS. 

IT WILL BE NOTED FROM EXAMPLE 2 THAT THE WEEKLY PIECE WORK WAGE IS
SUFFICIENT IN AMOUNT WHEN "TRANSLATED OR REDUCED BY COMPUTATION" TO PAY
AN HOURLY RATE OF $1.20 AN HOUR FOR THE FIRST FORTY HOURS OF WORK AND
$1.80 AN HOUR FOR THE REMAINING TEN HOURS OF OVERTIME.  THE STATUTE,
SEE SEC. 7, REQUIRES NO MORE. 

IN EXAMPLE 2, THE GUARANTEED RATE OF $1.00 PER HOUR AND $1.50 PER HOUR
FOR OVERTIME WOULD SATISFY EVERY STATUTORY REQUIREMENT, EVEN THOUGH NO
BONUS WERE ADDED TO THE WEEKLY WAGE.  IT SEEMS PLAIN THAT THE ADDITION
OF THE BONUS DOES NOT INVOLVE THE PAYMENT OF AN UNLAWFUL WAGE OR ANY
OMISSION TO PAY THE LAWFUL WAGE.  IF THE EMPLOYER AND EMPLOYEE CAN
LAWFULLY AGREE TO WORK FOR $1.20 AN HOUR FOR THE FIRST FORTY HOURS AND
FOR $1.80 PER HOUR FOR THE ADDITIONAL TEN OVERTIME HOURS, MAKING
$66.00, THE WEEKLY PIECE WORK RATE, I CAN FIND NOTHING IN THE FAIR
LABOR STANDARDS ACT OR IN THE PRINCIPLES OF FAIR DEALING AND COMMON
SENSE TO FORBID A CONTRACT BY WHICH THE EMPLOYEE IS PAID THE SUM OF
$66.00 FOR A WEEK'S WORK OF FIFTY HOURS, OR ANY LARGER AMOUNT, FOR
PIECE WORK DONE IN THE PERIOD OF FIFTY HOURS. 

NO BASIS IS SUGGESTED FOR SAYING THAT THE EMPLOYER IN SATISFYING THE
OVERTIME REQUIREMENTS OF THE STATUTE MUST DISTRIBUTE A LUMP SUM WEEKLY
PIECE WORK WAGE BETWEEN THE WAGE PAYABLE FOR THE FIRST FORTY HOURS AND
THAT PAID FOR OVERTIME IN SUCH PROPORTIONS AS TO RENDER THE WAGE
CONTRACT ILLEGAL RATHER THAN IN PROPORTIONS WHICH EXPRESS THE REQUIRED
STATUTORY TIME AND OVERTIME WAGE RELATIONSHIP OF ONE TO ONE AND ONE
HALF.  THERE IS NOTHING IN THE STATUTE REQUIRING THE WAGE CONTRACT, THE
PAY ENVELOPE, OR THE PAY ROLL TO DESIGNATE SEPARATELY THE PART OF THE
WEEKLY WAGE WHICH IS FOR THE FORTY HOURS REGULAR TIME AND THAT PORTION
WHICH IS PAID FOR THE ADDITIONAL HOURS OF OVERTIME.  IT IS ENOUGH THAT
THE WEEKLY WAGE IS THAT MUTUALLY AGREED UPON IN GOOD FAITH, THAT IT IS
INTENDED TO PAY FOR TIME AND OVERTIME, AND THAT IT IS SUFFICIENT IN
AMOUNT TO PAY FOR THE FIRST FORTY HOURS AT A RATE ABOVE THE MINIMUM
WAGE PRESCRIBED BY THE STATUTE AND TO PAY FOR THE OVERTIME AT ONE AND
ONE-HALF TIMES THAT RATE. 

WHEN, AS HERE, THE WAGE CONTRACT GUARANTEES AN HOURLY WAGE WITH ONE
AND A HALF TIMES THAT RATE FOR OVERTIME, IT IS OBVIOUSLY JUST AND
REASONABLE AND IN CONFORMITY TO THE STATUTE TO DIVIDE THE PIECE WORK
BONUS BETWEEN THE REGULAR HOURS OF WORK AND THE OVERTIME HOURS IN THE
SAME PROPORTIONS.  UNDER THE FORMULA ADOPTED BY THE COURT THE EMPLOYER
COULD PAY NO PIECE WORK RATE HIGH ENOUGH TO DISPENSE WITH WHAT IS
THOUGHT TO BE THE REQUIREMENT TO INCREASE THE WEEKLY WAGE IN ORDER TO
PAY THE WAGE DIFFERENTIAL FOR OVERTIME FOR WHICH, BY HYPOTHESIS, NO
PIECE WORK RATE OF PAY COMPENSATES.  THUS A PIECE WORK RATE WHICH WOULD
PAY TO THE EMPLOYEE A WEEKLY WAGE SUFFICIENT TO PAY SEVERAL TIMES THE
MINIMUM HOURLY RATE PRESCRIBED BY THE STATUTE FOR TIME AND OVERTIME
WOULD NOT BE LAWFUL WITHOUT A WAGE INCREASE TO COMPENSATE FOR THE
OVERTIME.  DESPITE THE GOVERNMENT'S ASSURANCE THAT THE STATUTE DOES NOT
PRECLUDE EMPLOYMENT ON PIECE WORK RATES, AND OUR DECISION TO THAT
EFFECT IN THE ROSENWASSER CASE, SUPRA, THE GOAL OF LAWFULNESS COULD
NEVER BE ATTAINED BY THE ADOPTION OF SUCH A RATE OF COMPENSATION, SINCE
THE PIECE WORK WAGE, HOWEVER GREAT, CAN NEVER BE REGARDED AS INCLUDING
THE WAGE DIFFERENTIAL FOR OVERTIME EVEN THOUGH THE PARTIES SO AGREE. 

ALL THIS IS IN FLAT CONTRADICTION TO WALLING V. BELO CORPORATION, 316
U.S. 624, IN WHICH WE HELD THAT NOTHING IN THE FAIR LABOR STANDARDS ACT
BARS AN EMPLOYER FROM CONTRACTING TO PAY HIS EMPLOYEES MINIMUM HOURLY
RATES FOR TIME PLUS ONE AND A HALF TIMES THOSE RATES FOR OVERTIME IN
EXCESS OF THE MINIMUM STATUTORY RATES, WITH A LUMP SUM WEEKLY GUARANTY
WHICH IN SOME WEEKS EXCEEDS THE WAGE AT THE STIPULATED HOURLY RATE. 
THERE WE HELD THAT THE GUARANTEED WEEKLY WAGE WAS COMPENSATION FOR
OVERTIME AS WELL AS FOR REGULAR TIME.  WE DECIDED THAT THE CONTRACT
CONTEMPLATED THAT THE EXCESS OF THE GUARANTEED WEEKLY WAGE OVER THE
STIPULATED MINIMUM AT THE HOURLY RATE WAS TO BE SO DISTRIBUTED AS TO
RECOGNIZE THE WAGE DIFFERENTIAL FOR OVERTIME, IN SUCH A WAY AS TO
SATISFY THE STATUTORY REQUIREMENTS, EVEN THOUGH THE WAGE CONTRACT DID
NOT EXPLICITLY SO DECLARE.  316 U.S. AT 632.  THAT CASE IS CONTROLLING
HERE.  IN THE PRESENT CASE THE "REGULAR RATE," WITHIN THE MEANING OF
SEC. 7(A)(3) OF THE ACT, IS, AS IN EXAMPLE 2, THE STIPULATED MINIMUM
HOURLY RATE PLUS A PART OF THE BONUS, AND THE BONUS IS, AS THE WAGE
CONTRACTS HAVE TREATED IT, AN ADDITION BOTH TO THE REGULAR RATE AND THE
OVERTIME RATE, WHICH THE STATUTE PERMITS. 

NEITHER OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, NOR WALLING V.
HELMERICH & PAYNE, 323 U.S. 37, IS APPLICABLE HERE.  IN THE MISSEL CASE
"THERE WAS NO CONTRACTUAL LIMIT UPON THE HOURS" WHICH THE EMPLOYER
COULD REQUIRE THE EMPLOYEE TO WORK FOR THE AGREED WEEKLY WAGE, AND "NO
PROVISION FOR ADDITIONAL PAY IN THE EVENT THE HOURS WORKED REQUIRED
MINIMUM COMPENSATION GREATER THAN THE FIXED WAGE," 316 U.S. AT 581. 
HENCE THE COURT WAS UNABLE TO SAY THAT THE FIXED WEEKLY WAGE WAS
INTENDED BY THE PARTIES TO COVER BOTH BASE PAY AND FIFTY PERCENT
ADDITIONAL FOR THE HOURS ACTUALLY WORKED OVER THE STATUTORY MAXIMUM. 
IN THE HELMERICH CASE, SUPRA, NO ATTEMPT WAS MADE BY THE EMPLOYER TO
APPLY THE ASSERTED REGULAR HOURLY RATE TO THE FIRST FORTY HOURS OF THE
WORK WEEK, THE ACTUAL WAGE PAID BEING GREATER.  IN CONSEQUENCE THE
OVERTIME WAGE WAS LESS THAN ONE AND ONE-HALF TIMES THE HOURLY WAGE IN
FACT PAID DURING THE FIRST FORTY HOURS OF THE WORK WEEK.  THIS WAS AN
OBVIOUS FAILURE TO COMPLY WITH THE OVERTIME PAY REQUIREMENTS OF THE
STATUTE.    EVEN THOUGH CONGRESS COULD HAVE COMPELLED AN INCREASE IN
WAGES ABOVE THE STATUTORY MINIMUM FOR TIME AND OVERTIME IN THE CASE OF
ALL EMPLOYERS WHO PAY WAGES ON THE PIECE WORK BASIS, CONGRESS HAS NOT
DONE SO BY THE FAIR LABOR STANDARDS ACT OR ADOPTED ANY POLICY
PENALIZING EMPLOYERS WHO ARE SO MISGUIDED AS TO ADD A BONUS TO A
GUARANTEED LAWFUL MINIMUM HOURLY WAGE FOR TIME AND OVERTIME.  IT IS NOT
OUR FUNCTION TO PRESCRIBE WAGE STANDARDS OR POLICIES WHICH CONGRESS HAS
NOT ADOPTED. 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :






















COMMISSIONER V. DISSTON, 325 U.S. 442 


NO. 589.  ARGUED APRIL 24, 1945.  - DECIDED JUNE 4, 1945.  - 144 F.2D
115, REVERSED. 


1.  IRREVOCABLE TRUSTS FOR THE BENEFIT OF MINORS PROVIDED FOR
ACCUMULATION OF THE INCOME FROM EACH BENEFICIARY'S SHARE UNTIL HE
REACHED THE AGE OF 21; FOR PAYMENT OF THE INCOME THEREAFTER DURING HIS
LIFETIME; AND FOR ULTIMATE DISTRIBUTION OF THE CORPUS CONTINGENTLY. 
THE TRUSTEES WERE AUTHORIZED TO APPLY, DURING THE MINORITY OF ANY
BENEFICIARY, SO MUCH OF THE INCOME FROM HIS SHARE "AS MAY BE NECESSARY"
FOR HIS SUPPORT, EDUCATION AND COMFORT; AND TO EXPEND UP TO 10% OF THE
CORPUS IN AN "EMERGENCY."  HELD THAT GIFTS TO THE TRUSTS WERE OF
"FUTURE INTERESTS," WITHIN THE MEANING OF SEC. 504(B) OF THE REVENUE
ACT OF 1932 AND APPLICABLE TREASURY REGULATIONS, SO THAT IN COMPUTING
THE GIFT TAX THE $5,000 EXCLUSION PRESCRIBED BY THAT SECTION WAS NOT
ALLOWABLE.  FONDREN V. COMMISSIONER, 324 U.S. 18.  P. 447. 

2. A TAXPAYER CLAIMING BENEFIT OF THE $5,000 EXCLUSION IN COMPUTING A
GIFT TAX UNDER SEC. 504(B) OF THE REVENUE ACT OF 1932 HAS THE BURDEN OF
SHOWING THAT THE GIFT TO WHICH THE CLAIM RELATES WAS NOT OF A "FUTURE
INTEREST."  P. 449. 

3.  IN COMPUTING THE GIFT TAX PURSUANT TO THE FORMULA PRESCRIBED BY
SEC. 502 OF THE REVENUE ACT OF 1932, AN ADJUSTMENT MAY BE MADE IN THE
NET GIFT FIGURE FOR AN EARLIER YEAR, EVEN THOUGH ASSESSMENT AND
COLLECTION OF A GIFT TAX FOR SUCH EARLIER YEAR BE BARRED BY
LIMITATIONS.  P. 449. 

COMMISSIONER OF INTERNAL REVENUE V. DISSTON. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 324 U.S. 832, TO REVIEW THE REVERSAL OF A DECISION OF THE
TAX COURT WHICH SUSTAINED THE COMMISSIONER'S DETERMINATION OF
DEFICIENCIES IN GIFT TAXES. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE FONDREN V. COMMISSIONER, 324 U.S. 18, PRESENTS
QUESTIONS WHETHER CERTAIN GIFTS TO MINORS ARE GIFTS OF "FUTURE
INTERESTS IN PROPERTY," WITHIN THE MEANING OF THE REVENUE ACT OF 1932,
C. 209, 47 STAT. 169. 

IN 1936 THE RESPONDENT, WILLIAM D. DISSTON, CREATED A TRUST FOR THE
BENEFIT OF EACH OF HIS FIVE CHILDREN, THREE OF WHOM WERE THEN MINORS. 
THE TOTAL OF HIS GIFTS THAT YEAR WAS $71,952.  THE COMMISSIONER ALLOWED
AN EXEMPTION OF $5,000 ON EACH GIFT FOR THE CHILDREN AND ON ONE TO HIS
WIFE.  THE TAXPAYER ALSO WAS ALLOWED THE SPECIFIC EXEMPTION OF $40,000
PROVIDED BY SEC. 505 OF THE REVENUE ACT OF 1932, AS AMENDED BY SEC.
301(B) OF THE REVENUE ACT OF 1935.  THE NET GIFTS FOR 1936 ACCORDINGLY
WERE COMPUTED TO BE $1,952, UPON WHICH A TAX WAS ASSESSED AND PAID. 

IN 1937 THE TAXPAYER ADDED TO THE CORPUS OF THE TRUST SECURITIES
VALUED AT $25,000, OF WHICH $5,000 WAS ALLOCATED TO EACH CHILD'S
INTEREST, INCLUDING THE THREE WHO WERE STILL MINORS.  IN 1938 HE
CREATED ANOTHER TRUST FOR HIS FIVE CHILDREN, THE CORPUS CONSISTING OF
UNDEVELOPED LAND WORTH $38,581.  TWO OF THE CHILDREN STILL WERE
MINORS. 

THE TWO TRUSTS WERE IDENTICAL IN ALL RESPECTS NOW MATERIAL.  THE
PRINCIPAL WAS DIVIDED INTO FIVE EQUAL SHARES, ONE FOR EACH CHILD.  THE
TRUSTS WERE OF THE SPENDTHRIFT VARIETY.  ALL SHARES OF THE CORPUS AND
INCOME WERE TO BE FREE FROM "ANTICIPATION, ASSIGNMENT, PLEDGE, OR
OBLIGATIONS OF BENEFICIARIES," AS WELL AS EXECUTION OR ATTACHMENT.  THE
SHARES OF THE MINORS ALONE ARE NOW INVOLVED.  HENCE THE NATURE OF THE
TRUST AS APPLICABLE TO THEM ONLY NEED BE CONSIDERED. 

THE TAXPAYER'S SON, WILLIAM L. DISSTON, WAS NINETEEN IN 1936 WHEN THE
FIRST TRUST WAS CREATED.  AS TO HIS SHARE THE TRUSTEES WERE DIRECTED,
IN THE SECOND ARTICLE, "TO ACCUMULATE THE NET INCOME THEREFROM FOR THE
BENEFIT OF WILLIAM L. DISSTON UNTIL HE REACHES THE AGE OF TWENTY-ONE
YEARS, AT WHICH TIME TO PAY OVER TO HIM ALL ACCUMULATED INCOME, AND
THEREAFTER TO PAY OVER TO HIM IN NOT LESS THAN QUARTERLY INSTALMENTS
THE ENTIRE NET INCOME DERIVED THEREFROM DURING HIS LIFETIME; PROVIDED,
HOWEVER, THAT UPON HIS REACHING THE AGE OF FORTY-FIVE YEARS ONE-HALF OF
THE PRINCIPAL OF HIS SHARE SHALL BE PAID OVER TO HIM FREE AND
DISCHARGED OF ALL TRUSTS; AND UPON FURTHER TRUST UPON HIS DEATH WHETHER
BEFORE OR AFTER REACHING THE AGE OF FORTY-FIVE YEARS, TO DIVIDE THE
PRINCIPAL OF HIS SHARE, OR SUCH PORTION THEREOF AS IS THEN HELD BY THE
TRUSTEES, AMONG HIS THEN LIVING DESCENDANTS  ...  IN SUCH AMOUNTS AS HE
SHALL BY WILL APPOINT, AND IN DEFAULT OF SUCH APPOINTMENT, TO DIVIDE
THE SAME EQUALLY PER STIRPES," WITH PROVISION FOR DIVISION AMONG THE
TAXPAYER'S OTHER CHILDREN AND THEIR DESCENDANTS IF NO DESCENDANT OF THE
BENEFICIARY SHOULD THEN BE LIVING.  THE ARTICLE CONTAINS A PROVISO THAT
IF THE TAXPAYER'S SON SHOULD DIE BEFORE REACHING FORTY-FIVE, THE SON
MAY APPOINT TO HIS SPOUSE FOR A PERIOD NO LONGER THAN HER LIFE NOT MORE
THAN ONE-HALF OF THE INCOME FROM HIS SHARE OF THE CORPUS. 

IDENTICAL PROVISIONS WERE MADE FOR THE TWO MINOR DAUGHTERS, EXCEPT
THAT THEY WERE TO OBTAIN ONLY ONE-THIRD OF THE CORPUS AT AGE FORTY-FIVE
AND COULD APPOINT TO THEIR SPOUSES ONLY ONE-THIRD OF THE INCOME. 

A SUBSEQUENT PARAGRAPH PROVIDED THAT THE TRUSTEES SHOULD HOLD THE
MINORS' SHARES DURING THEIR RESPECTIVE MINORITIES, "AND DURING SUCH
TIME SHALL APPLY SUCH INCOME THEREFROM AS MAY BE NECESSARY FOR THE
EDUCATION, COMFORT AND SUPPORT OF THE RESPECTIVE MINORS, AND SHALL
ACCUMULATE FOR EACH MINOR UNTIL HE OR SHE REACHES THE AGE OF TWENTY-ONE
YEARS, ALL INCOME NOT SO NEEDED.  THE FOREGOING CLAUSE SHALL APPLY TO
MINOR CHILDREN OF THE SETTLOR IRRESPECTIVE OF THE DIRECTION HERETOFORE
SET FORTH TO ACCUMULATE ALL INCOME FOR SUCH MINORS." 

IN ADDITION THE FOURTH ARTICLE, WHICH DEFINED THE TRUSTEES' POWERS,
AUTHORIZED THEM "TO APPLY THE INCOME TO WHICH ANY BENEFICIARY SHALL BE
ENTITLED HEREUNDER FOR THE MAINTENANCE, EDUCATION, AND SUPPORT OF SUCH
BENEFICIARY SHOULD HE OR SHE BY REASON OF AGE, ILLNESS, OR ANY OTHER
CAUSE IN THE OPINION OF THE TRUSTEES BE INCAPABLE OF DISPENSING IT.
PAYMENT BY THE TRUSTEES TO THE PARENT OF ANY MINOR  ...  SHALL BE
SUFFICIENT ACQUITTANCE AND DISCHARGE TO THE TRUSTEES FOR SUCH PAYMENT
OR PAYMENTS." 

FINALLY, THE TRUSTEES WERE AUTHORIZED TO INVADE THE CORPUS IN AN
EMERGENCY:  "TO EXPEND OUT OF THE SHARE OF PRINCIPAL FROM WHICH ANY
BENEFICIARY MAY BE RECEIVING INCOME UNDER THIS DEED OF TRUST SUCH SUMS
AS TRUSTEES MAY CONSIDER TO BE FOR THE BEST INTERESTS OF SUCH
BENEFICIARIES DURING ILLNESS OR EMERGENCY OF ANY KIND; PROVIDED,
HOWEVER, THAT IN NO CASE SHALL SUCH EXPENDITURES OF PRINCIPAL EXCEED IN
THE AGGREGATE TEN PERCENT (10%) OF THE VALUE OF SUCH SHARE OF PRINCIPAL
..." 

IN OPERATION THE 1938 TRUST OF UNIMPROVED REALTY HAD PRODUCED NO NET
INCOME TO THE TIME THE CASE CAME BEFORE THE TAX COURT.  MOST OF THE
1936 INCOME OF THE FIRST TRUST, $288 FOR EACH MINOR, WAS PAID TO THE
MOTHER OF THE BENEFICIARIES.  IN 1937 PARTIAL PAYMENTS OF INCOME, $94
PER MINOR CHILD, WERE MADE.  THE BENEFICIARIES' MOTHER RETURNED OTHER
CHECKS TO THE CORPORATE TRUSTEE IN 1937, AND ONE OF THE INDIVIDUAL
TRUSTEES, AN ADULT CHILD OF THE TAXPAYER, DIRECTED THE CORPORATE
TRUSTEE THEREAFTER TO ACCUMULATE THE INCOME OF THE MINORS.  NO FURTHER
PAYMENTS OF INCOME WERE MADE TO ANY CHILD PRIOR TO HIS BECOMING OF
AGE. 

IN DETERMINING THE TAXPAYER'S GIFT TAX FOR 1937 THE COMMISSIONER
DISALLOWED THREE $5,000 EXCLUSIONS FROM THE NET GIFTS FOR THAT YEAR ON
THE GROUND THAT THE GIFTS TO THE THREE MINOR CHILDREN WERE GIFTS OF
FUTURE INTERESTS.  FOR 1938 THE COMMISSIONER DISALLOWED TWO $5,000
EXCLUSIONS ON THE GROUND THAT THE GIFTS MADE THAT YEAR TO THE TWO
CHILDREN WHO WERE STILL MINORS WERE GIFTS OF FUTURE INTERESTS. 

IN COMPUTING THE GIFT TAX FOR 1937 AND 1938 IT WAS NECESSARY FOR THE
COMMISSIONER TO COMPUTE THE AGGREGATE SUM OF THE NET GIFTS FOR THE
PRECEDING YEARS.  FN1  THE COMMISSIONER, IN DETERMINING THE NET GIFTS
MADE FOR THIS PURPOSE BY THE 1936 TRUST, ADJUSTED THE EXCLUSIONS WHICH
HE HAD ALLOWED IN 1936 TO THE EXTENT OF $5,000 FOR EACH OF THE THREE
MINORS.  THE PERIOD OF LIMITATIONS FOR ASSESSMENT AND COLLECTION OF
1936 GIFT TAXES HAD RUN.  FN2 

THE TAX COURT UPHELD THE COMMISSIONER, BUT THE COURT OF APPEALS
REVERSED, HOLDING NO FUTURE INTERESTS AROSE AS A RESULT OF THE GIFTS TO
THE MINORS.  CONSEQUENTLY IT WAS UNNECESSARY FOR THE COURT OF APPEALS
TO CONSIDER WHETHER THE STATUTE OF LIMITATIONS BARRED READJUSTMENT OF
THE NET GIFT FIGURE FOR 1936 OR SIMPLY BARRED COLLECTION OF ANY FURTHER
GIFT TAXES FOR THAT YEAR. 

THE GUIDING PRINCIPLES WERE OUTLINED RECENTLY IN FONDREN V.
COMMISSIONER, 324 U.S. 18.  GIFTS OF "FUTURE INTERESTS," WITHIN THE
MEANING OF SEC. 504(B), TO ANY PERSON ARE NOT EXCLUDED FROM THE
COMPUTATION OF NET GIFTS TO THE EXTENT OF THE FIRST $5,000 IN VALUE, AS
ARE PRESENT INTERESTS.  TREASURY REGULATIONS 79(1936 ED.), ARTICLE 11,
DEFINES "FUTURE INTERESTS" AS INTERESTS "LIMITED TO COMMENCE IN USE,
POSSESSION, OR ENJOYMENT AT SOME FUTURE DATE OR TIME  ...."  THE
DEFINITION HAS BEEN APPROVED REPEATEDLY.  CF. RYERSON V. UNITED STATES,
312 U.S. 405; UNITED STATES V. PELZER, 312 U.S. 399; FONDREN V.
COMMISSIONER, 324 U.S. 18. 

CLEARLY THE CORPUS OF THE TRUSTS FALLS WITHIN THE DEFINITION. 
DISTRIBUTION TO WILLIAM L. DISSTON, FOR EXAMPLE, HAS NO RELATION TO HIS
REACHING HIS MAJORITY, WHICH HE HAS NOW ATTAINED.  HE MUST LIVE TO
ATTAIN THE AGE OF FORTY-FIVE TO ENABLE HIM TO RECEIVE ONE-HALF OF THE
CORPUS.  IF HE DOES NOT REACH THAT AGE, HIS ESTATE RECEIVES NO PART OF
THE PRINCIPAL.  THE RECIPIENTS ARE AN UNDETERMINED GROUP DESIGNATED IN
THE TRUST PROVISION, AMONG WHOM THE BENEFICIARY HAS A LIMITED POWER OF
APPOINTMENT.  AT THE TIME OF THE GIFTS IN 1936-1938 IT WAS UNKNOWN WHO
IN FACT WOULD RECEIVE THIS ONE-HALF INTEREST.  OBVIOUSLY THE ENJOYMENT
WAS POSTPONED. 

AS TO THE OTHER HALF IN WILLIAM L. DISSTON'S SHARE, IT LIKEWISE WAS
UNKNOWN WHO WOULD ENJOY THE CORPUS.  ONE THING ONLY WAS KNOWN, THAT THE
NAMED CHILD COULD NOT ENJOY IT.  HE WOULD CONTINUE TO RECEIVE THE
INCOME FROM IT FOR HIS LIFE, BUT THE PRINCIPAL WAS NOT GIVEN TO HIM. 
THE POSSIBILITY THAT IN AN EMERGENCY THE TRUSTEES MIGHT INVADE THE
CORPUS TO THE EXTENT OF TEN PER CENT FOR HIS BENEFIT DID NOT CONFER A
PRESENT INTEREST IN THAT PART OF THE PRINCIPAL.  THE EMERGENCY BY
DEFINITION WAS EXTRAORDINARY, SOMETHING THAT MIGHT OR MIGHT NOT OCCUR
AT SOME INDEFINITE FUTURE TIME.  NO PRESENT, CERTAIN AND CONTINUOUS
ENJOYMENT WAS CONTEMPLATED, NOR DID IT MATERIALIZE.  WHAT HAS BEEN SAID
OF THE ONE MINOR IS TRUE OF THE OTHERS. 

THE QUESTION MUST BE DETERMINED WHETHER THE TRUSTS PROVIDED FOR A
PRESENT INTEREST IN THE TRUST INCOME, OR SOME DEFINABLE PORTION OF IT.
THE FIRST DIRECTION OF EACH TRUST IS TO ACCUMULATE THE NET INCOME UNTIL
THE MINOR REACHES TWENTY-ONE.  IF THAT WERE ALL, IT WOULD AGAIN BE
CLEAR THAT A FUTURE INTEREST WAS CREATED BY THE POSTPONEMENT OF
ENJOYMENT.  A LATER PARAGRAPH DIRECTS THE TRUSTEES, HOWEVER, "TO APPLY
...  SUCH INCOME THEREFROM AS MAY BE NECESSARY FOR THE EDUCATION,
COMFORT AND SUPPORT OF THE RESPECTIVE MINORS" AND TO ACCUMULATE THE
REMAINDER. 

RESPONDENT URGES THAT THIS CASE DIFFERS FROM THE FONDREN CASE IN THAT
THERE THE TRUST INSTRUMENT SHOWED THAT IT WAS NOT CONTEMPLATED THAT THE
INCOME WOULD BE NEEDED FOR EDUCATION AND SUPPORT; AND THE TRUSTEE WAS
DIRECTED TO ACCUMULATE THE INCOME UNLESS NO OTHER FUNDS WERE AVAILABLE
FOR SUCH PURPOSES, WHEREAS HERE THERE IS NOTHING IN THE TRUST
INSTRUMENT TO INDICATE SUCH AN INTENT.  IN FACT, RESPONDENT ARGUES, THE
TRUST INSTRUMENT MEANS THAT THE TRUSTEES MUST APPLY AN AMOUNT OF THE
INCOME SUFFICIENT TO PROVIDE FOR EDUCATION, COMFORT AND SUPPORT, EVEN
THOUGH THE MINOR IS AMPLY CARED FOR BY HIS PARENTS, HIS OWN EFFORTS, OR
OTHER SOURCES OF REVENUE, CITING 1 SCOTT, TRUSTS, SEC. 128.4 AND OTHER
AUTHORITIES.  WHEN FACED WITH THE FACT THAT THE HISTORY OF THE TRUST'S
ADMINISTRATION SHOWS A PRACTICAL CONSTRUCTION BY THE TRUSTEES THAT
SUPPORT MONEY NEED NOT AUTOMATICALLY BE PAID OVER, RESPONDENT URGES
THAT THE TERMS OF THE TRUST AND THE NATURE OF THE INTEREST GRANTED
CANNOT BE VARIED BY WHAT WAS SUBSEQUENTLY DONE IN ADMINISTRATION. 

THE LANGUAGE OF THE TRUST INSTRUMENTS DIRECTS THAT THE INCOME BE
ACCUMULATED DURING MINORITY.  THE SUBSEQUENT PROVISION FOR PAYMENTS FOR
MAINTENANCE AND SUPPORT MAY BE SAID TO INDICATE A DEPARTURE FROM THE
POLICY OF ACCUMULATION ONLY WHEN NECESSARY, IN THE REASONABLE
DISCRETION OF THE TRUSTEES.  IF THAT IS THE APPROPRIATE INTERPRETATION
OF THE TRUST INSTRUMENTS, THEN LITTLE DIFFERENCE FROM THE FONDREN CASE
IS INVOLVED.  EVEN IN ITS PRACTICAL WORKING, THE TRUSTEES DID NOT FIND
THAT NECESSARY PREREQUISITES FOR A STEADY APPLICATION OF ALL OR ANY
ASCERTAINABLE PART OF THE INCOME FOR EDUCATION, SUPPORT AND
MAINTENANCE. 

BUT, EVEN THOUGH THE TRUSTEES WERE UNDER A DUTY TO APPLY THE INCOME
FOR SUPPORT, IRRESPECTIVE OF OUTSIDE SOURCES OF REVENUE, THERE IS
ALWAYS THE QUESTION HOW MUCH, IF ANY, OF THE INCOME CAN ACTUALLY BE
APPLIED FOR THE PERMITTED PURPOSES.  THE EXISTENCE OF A DUTY SO TO
APPLY THE INCOME GIVES NO CLUE TO THE AMOUNT THAT WILL BE NEEDED FOR
THAT PURPOSE, OR THE REQUIREMENTS FOR MAINTENANCE, EDUCATION AND
SUPPORT THAT WERE FORESEEABLE AT THE TIME THE GIFTS WERE MADE.  IN THE
ABSENCE OF SOME INDICATION FROM THE FACE OF THE TRUST OR SURROUNDING
CIRCUMSTANCES THAT A STEADY FLOW OF SOME ASCERTAINABLE PORTION OF
INCOME TO THE MINOR WOULD BE REQUIRED, THERE IS NO BASIS FOR A
CONCLUSION THAT THERE IS A GIFT OF ANYTHING OTHER THAN FOR THE FUTURE. 
THE TAXPAYER CLAIMING THE EXCLUSION MUST ASSUME THE BURDEN OF SHOWING
THAT THE VALUE OF WHAT HE CLAIMS IS OTHER THAN A FUTURE INTEREST.  CF.
NEW COLONIAL CO. V. HELVERING, 292 U.S. 435.  THAT BURDEN HAS NOT BEEN
SATISFIED IN THIS CASE. 

THE QUESTION REMAINS WHETHER THE ADJUSTMENT OF NET GIFTS FOR 1936 IN
COMPUTING 1937 AND 1938 TAX LIABILITY IS BARRED BY THE STATUTE OF
LIMITATIONS.  AS HAS BEEN NOTED, SEC. 502 REQUIRES UTILIZATION OF "THE
AGGREGATE SUM OF THE NET GIFTS FOR EACH OF THE PRECEDING CALENDAR
YEARS" IN THE FORMULA FOR COMPUTING GIFT TAX LIABILITY.  SECTION 517(A)
DOES NOT PURPORT TO BAR ADJUSTMENT OF THE NET GIFT FIGURE FOR THAT
PURPOSE, BUT SIMPLY PREVENTS ASSESSMENT AND COLLECTION OF A TAX FOR A
YEAR BARRED BY THE STATUTE.  THE STATUTE DOES NOT PURPORT TO PRECLUDE
AN EXAMINATION INTO EVENTS OF PRIOR YEARS FOR THE PURPOSE OF CORRECTLY
DETERMINING GIFT TAX LIABILITY FOR YEARS WHICH ARE STILL OPEN.  THE TAX
COURT AND TREASURY REGULATIONS HAVE CONSTRUED SEC. 517(A) AS REQUIRING
DETERMINATION OF THE TRUE AND CORRECT AGGREGATE OF NET GIFTS FOR
PREVIOUS YEARS.  FN3  THE CONSTRUCTION IS IN ACCORD WITH THE STATUTORY
LANGUAGE.    ACCORDINGLY, THE JUDGMENT IS REVERSED. 

FN1  THE FORMULA RESULTS IN A PROGRESSIVE RATE OF GIFT TAXATION, NOT
LIMITED TO PROGRESSION WITHIN THE CALENDAR YEAR, BUT EXTENDING OVER THE
LIFE OF THE DONOR.  THE COMPUTATION FORMULA IS SET FORTH IN SEC. 502 OF
THE REVENUE ACT OF 1932: 

"THE TAX FOR EACH CALENDAR YEAR SHALL BE AN AMOUNT EQUAL TO THE
EXCESS OF - 

"(1)  A TAX, COMPUTED IN ACCORDANCE WITH THE RATE SCHEDULE
HEREINAFTER SET FORTH, ON THE AGGREGATE SUM OF THE NET GIFTS FOR SUCH
CALENDAR YEAR AND FOR EACH OF THE PRECEDING CALENDAR YEARS, OVER 
"(2)  A TAX, COMPUTED IN ACCORDANCE WITH THE RATE SCHEDULE, ON THE
AGGREGATE SUM OF THE NET GIFTS FOR EACH OF THE PRECEDING CALENDAR
YEARS." 

FN2  SEE SEC. 517(A) OF THE REVENUE ACT OF 1932. 

FN3  THE PERTINENT TREASURY REGULATIONS 79, ARTICLE 5 PROVIDES:  "...
BY THE WORDS 'AGGREGATE SUM OF THE NET GIFTS FOR EACH OF THE PRECEDING
CALENDAR YEARS' (ASIDE FROM THE AMOUNT OF THE SPECIFIC EXEMPTION
DEDUCTIBLE) IS MEANT TO TRUE AND CORRECT AGGREGATE OF SUCH NET GIFTS,
NOT NECESSARILY THAT RETURNED FOR SUCH YEARS AND IN RESPECT TO WHICH
TAX WAS PAID  ...."  SEE ALSO WINTERBOTHAM V. COMMISSIONER, 46 B.T.A.
972; WALLERSTEIN V. COMMISSIONER, 2 T.C. 542; ROBERTS V. COMMISSIONER,
2 T.C. 679. 
..END :













MINE WORKERS V. EAGLE-PICHER CO., 325 U.S. 335 


NO. 337.  ARGUED JANUARY 31, 1945.  - DECIDED MAY 28, 1945.  - 141 F.2D
843, AFFIRMED. 


1.  LABOR UNIONS WHICH INTERVENED IN THE CIRCUIT COURT OF APPEALS IN
SUPPORT OF A PETITION BY THE NATIONAL LABOR RELATIONS BOARD TO REVOKE
AN ENFORCEMENT ORDER AND TO REMAND THE CAUSE TO THE BOARD, HELD TO HAVE
STANDING TO SEEK REVIEW OF A DENIAL OF THE PETITION, EVEN THOUGH THE
BOARD ELECTED NOT TO SEEK REVIEW.  P. 338. 

2.  THE NATIONAL LABOR RELATIONS BOARD, HAVING SOUGHT AND OBTAINED A
DECREE OF THE CIRCUIT COURT OF APPEALS FOR ENFORCEMENT OF AN ORDER OF
THE BOARD, IS NOT ENTITLED AS OF RIGHT - IN THE ABSENCE OF FRAUD OR
MISTAKE CHARGEABLE TO THE RESPONDENT, AND AFTER EXPIRATION OF THE TERM
OF COURT AT WHICH THE DECREE WAS ENTERED - TO HAVE REMEDIAL PROVISIONS
OF THE DECREE SET ASIDE AND THE CASE REMANDED TO IT FOR PRESCRIPTION OF
RELIEF WHICH IT DEEMS MORE APPROPRIATE TO EFFECTUATE THE POLICY OF THE
NATIONAL LABOR RELATIONS ACT.  P. 339. 

3.  AMERICAN CHAIN & CABLE CO. V. FEDERAL TRADE COMMISSION, 142 F.2D
909, DISTINGUISHED.  P. 342. 

INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, LOCALS NOS. 15,
17, 107, 108 AND 111, (C.I.O.)  ET AL. V. EAGLE-PICHER MINING &
SMELTING CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 323 U.S. 695, TO REVIEW A DECREE DISMISSING A PETITION OF
THE NATIONAL LABOR RELATIONS BOARD TO VACATE PART OF A DECREE OF
ENFORCEMENT AND TO REMAND THE CAUSE TO THE BOARD. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER THE NATIONAL LABOR RELATIONS BOARD
AFTER SEEKING AND OBTAINING A COURT ORDER OF ENFORCEMENT OF ITS OWN
ORDER, IN THE ABSENCE OF FRAUD OR MISTAKE INDUCED BY THE RESPONDENT,
AND AFTER EXPIRATION OF THE TERM, IS ENTITLED TO HAVE THE PROVISIONS OF
THE DECREE PRESCRIBING THE NATURE OF THE REMEDY SET ASIDE AND THE CASE
REMANDED TO IT, FOR THE PRESCRIPTION OF RELIEF IT DEEMS MORE
APPROPRIATE TO ENFORCE THE POLICY OF THE NATIONAL LABOR RELATIONS ACT. 
FN1 

IN A PROCEEDING INSTITUTED BY THE PETITIONER UNIONS THE BOARD FOUND
THAT THE RESPONDENT COMPANIES HAD BEEN GUILTY OF UNFAIR LABOR PRACTICES
IN VIOLATION OF SECTIONS 8(1) AND 8(3) OF THE ACT.  FN2  THE HEARINGS
WERE PROTRACTED BOTH AS TO THE ALLEGED DISCRIMINATION AND AS TO THE
REMEDY WHICH SHOULD BE ADOPTED.  WITH ALL RELEVANT DATA OPEN TO IT, THE
BOARD ORDERED THE EMPLOYERS TO CEASE AND DESIST FROM CERTAIN PRACTICES
AND TO REINSTATE 209 EMPLOYEES WITH BACK PAY.  BASED ON THE BOARD'S
UNDERSTANDING AS TO THE OPPORTUNITY FOR REINSTATEMENT OF THE 209 MEN IN
QUESTION AND ALL OTHERS ELIGIBLE FOR REEMPLOYMENT, IT DEVISED A FORMULA
FOR THE CALCULATION OF BACK PAY FOR THE MEMBERS OF THE CLASS TO WHOM
THE AWARD WAS MADE.  FN3 

THE EMPLOYERS WERE DISSATISFIED WITH THE ORDER AND SOUGHT A REVIEW BY
THE CIRCUIT COURT OF APPEALS.  THEREUPON THE BOARD FILED A TRANSCRIPT
OF THE RECORD IN THE SAME COURT AND SOUGHT ENFORCEMENT OF ITS ORDER. 
THE UNIONS, WHO ARE PETITIONERS IN THIS COURT, WERE PERMITTED TO
INTERVENE AND WERE HEARD IN SUPPORT OF THE BOARD'S ORDER.  THE COURT
MODIFIED THE ORDER AS TO MATTERS NOT HERE RELEVANT AND DECREED
ENFORCEMENT.  FN4  TWO PARAGRAPHS OF THE DECREE THUS OBTAINED BY THE
BOARD WITH THE ASSISTANCE OF THE PRESENT PETITIONERS SPECIFIED THE
METHOD OF COMPUTING BACK PAY TO THE CLAIMANTS WHOM THE BOARD HAD FOUND
ENTITLED.  THIS DECREE WAS ENTERED JUNE 27, 1941.  THE COMPANIES
PROCEEDED TO COMPUTE BACK PAY DUE THE CLAIMANTS IN ACCORDANCE WITH THE
TERMS OF THE DECREE AND TENDERED THE AMOUNT THEY ASCERTAINED TO BE DUE
THEREUNDER.  THE BOARD, BY ITS AGENTS, EXAMINED THE CORPORATE RECORDS
AND REACHED THE CONCLUSION THAT A DIFFERENT METHOD OF COMPENSATION TO
THE CLAIMANTS SHOULD HAVE BEEN ADOPTED IN THE ORIGINAL PROCEEDING. 

FEBRUARY 4, 1943, NEARLY TWO YEARS AFTER THE FINAL DECREE, AND AFTER
ATTEMPTED COMPLIANCE BY THE EMPLOYERS, THE BOARD PETITIONED THE CIRCUIT
COURT OF APPEALS TO VACATE THAT PORTION OF ITS DECREE WHICH DEALT WITH
THE AWARD OF BACK PAY AND TO REMAND THE CAUSE TO THE BOARD.  THE
PETITIONER LABOR UNIONS WERE PERMITTED TO INTERVENE AND TO SUPPORT THE
BOARD'S PETITION. 

IT IS SOMEWHAT DIFFICULT TO CHARACTERIZE THE ALLEGATIONS OF THE
PETITION.  IT DOES NOT ACCUSE THE COMPANIES OF FRAUD, BUT INDICATES
THAT CERTAIN EVIDENCE PRODUCED BY THEM CREATED A WRONG IMPRESSION ON
THE MIND OF THE BOARD WHICH COULD HAVE BEEN CORRECTED HAD THEY GONE
INTO GREATER DETAIL AND DISCLOSED CERTAIN FACTS WITHIN THEIR KNOWLEDGE,
AND IT AVERS THAT THE BOARD PRESCRIBED ITS REMEDY IN RELIANCE UPON A
MISTAKEN UNDERSTANDING OF CONDITIONS TOUCHING POSSIBLE REEMPLOYMENT OF
THE CLAIMANTS.  TO THIS PETITION THE EMPLOYERS REPLIED CHALLENGING THE
JURISDICTION OF THE COURT TO VACATE ITS DECREE, MOVED TO DISMISS THE
PETITION, AND ANSWERED ON THE MERITS, CATEGORICALLY DENYING THE
AVERMENTS OF THE PETITION.  THEREUPON THE BOARD MOVED FOR JUDGMENT ON
ITS MOTION.  THE MATTER WAS HEARD.  THE COURT HELD THAT THERE HAD BEEN
NO SHOWING THAT THE ORDER AND DECREE WERE OBTAINED BY MISREPRESENTATION
OR WRONGFUL CONDUCT OF THE EMPLOYERS OR THAT ANY MISTAKE OF THE BOARD
HAD RESULTED IN A DECREE WHICH WAS UNFAIR, AND CONSEQUENTLY HELD THAT
THERE WAS NO JUSTIFICATION FOR REVOCATION OR REMAND OF THE PORTION OF
THE DECREE INVOLVED.  THE PETITION OF THE BOARD WAS ACCORDINGLY
DISMISSED.  FN5  THE BOARD DID NOT APPLY FOR CERTIORARI BUT THE
INTERVENING UNIONS WHOSE PETITION HAD ALSO BEEN DISMISSED APPLIED FOR
THE WRIT.  THE BOARD WAS MADE A RESPONDENT IN THIS COURT BUT APPEARED
IN SUPPORT OF THE PETITION. 

THE EMPLOYERS MADE A PERSUASIVE SHOWING THAT, AS RESPECTS MATERIAL
ELEMENTS OF THE PROBLEM OF BACK PAY, THE RECORD OF THE BOARD'S HEARING,
AND THE DECISION OF THE CIRCUIT COURT OF APPEALS ENFORCING THE BOARD'S
ORDER, DEMONSTRATE THAT ALL THE FACTS NOW RELIED UPON BY THE BOARD FOR
REVOCATION AND REFORMATION OF ITS ORDER SUFFICIENTLY APPEARED PRIOR TO
THE ENTRY OF THE ORDER.  IN THE VIEW WE TAKE, IT IS UNNECESSARY TO
CONSIDER THIS MATTER. 

THEY ALSO ATTACK THE STANDING OF THE PETITIONERS TO SEEK REVIEW BY
THIS COURT WHEN THE BOARD, THE BODY CHARGED WITH THE ENFORCEMENT OF THE
NATIONAL LABOR RELATIONS ACT, HAS ELECTED NOT TO SEEK REVIEW.  WE THINK
THAT, IN THE CIRCUMSTANCES DISCLOSED, THE PETITIONERS, THOUGH THEY
COULD NOT HAVE INSTITUTED ENFORCEMENT PROCEEDINGS,  FN6  HAD STANDING
TO SEEK REVIEW OF THE ORDER DENYING THE BOARD'S PETITION.  FN7 

THE IMPORTANT QUESTION PRESENTED IS WHETHER, DESPITE A DECREE ENTERED
AT THE BOARD'S BEHEST, PRESCRIBING THE METHOD OF ENFORCEMENT OF THE
RELIEF GRANTED BY THE BOARD, THAT BODY RETAINS A CONTINUING
JURISDICTION TO BE EXERCISED WHENEVER, IN ITS JUDGMENT, SUCH EXERCISE
IS DESIRABLE AND MAY, THEREFORE, OUST THE JURISDICTION OF THE COURT AND
RECALL THE PROCEEDING FOR FURTHER HEARING AND ACTION. 

IT WILL BE NOTED THAT THIS IS NOT A BILL OF REVIEW BASED UPON FRAUD
OR MISTAKE.  IF IT WERE TO BE TREATED AS SUCH OBVIOUSLY THE RELIEF
PRAYED COULD NOT BE GRANTED WITHOUT A TRIAL, IN VIEW OF THE ISSUES MADE
BY THE EMPLOYERS' ANSWER.  THE BOARD'S INSISTENCE IS THAT, UPON ITS
PETITION, THE AVERMENTS OF WHICH ARE DENIED, IT IS ENTITLED TO AN
OPENING OF THE DECREE AND THE REMAND OF THE CAUSE UPON ITS MERE
STATEMENT THAT IT NOW THINKS THE RELIEF ORGINALLY GRANTED WAS
INAPPROPRIATE TO THE SITUATION AS THE BOARD NOW CONCEIVES IT. 

WE ARE NOT DEALING HERE WITH AN ADMINISTRATIVE PROCEEDING.  THAT
PROCEEDING HAS ENDED AND HAS BEEN MERGED IN A DECREE OF A COURT
PURSUANT TO THE DIRECTIONS OF THE NATIONAL LABOR RELATIONS ACT.  THE
STATUTE PROVIDES THAT IF, IN THE ENFORCEMENT PROCEEDING, IT APPEARS
THAT ANY FURTHER FACTS SHOULD BE DEVELOPED THE COURT MAY REMAND THE
CAUSE TO THE BOARD FOR THE TAKING OF FURTHER EVIDENCE AND FOR FURTHER
CONSIDERATION.  (SEC. 10(E).  FN8  ) BUT IT IS PLAIN THAT THE SCHEME OF
THE ACT CONTEMPLATES THAT WHEN THE RECORD HAS BEEN MADE AND IS FINALLY
SUBMITTED FOR ACTION BY THE BOARD THE JUDGMENT "SHALL BE FINAL."  IT IS
TO HAVE ALL THE QUALITIES OF ANY OTHER DECREE ENTERED IN A LITIGATED
CAUSE UPON FULL HEARING, AND IS SUBJECT TO REVIEW BY THIS COURT ON
CERTIORARI AS IN OTHER CASES.  (SEC. 10(E) SUPRA.) THE POSITION OF THE
PETITIONERS IS, AND NECESSARILY MUST BE, THAT, WHILE THE COURT'S DECREE
IS FINAL AS RESPECTS THE MATTER OF THE ALLEGED UNFAIR LABOR PRACTICES
FOUND BY THE BOARD, IT IS NEVER FINAL AS RESPECTS THE RELIEF PRESCRIBED
BY THE BOARD.  IT MUST FOLLOW THAT AT ANY TIME, HOWEVER REMOTE, AND FOR
ANY REASON SATISFACTORY TO THE BOARD, IT MAY RECALL THE PROCEEDING FROM
THE CIRCUIT COURT OF APPEALS INSOFAR AS CONCERNS THE RELIEF GRANTED AND
START AFRESH AS IF AN ENFORCEMENT DECREE HAD NEVER BEEN ENTERED. 

FINALITY TO LITIGATION IS AN END TO BE DESIRED AS WELL IN PROCEEDINGS
TO WHICH AN ADMINISTRATIVE BODY IS A PARTY AS IN EXCLUSIVELY PRIVATE
LITIGATION.  THE PARTY ADVERSE TO THE ADMINISTRATIVE BODY IS ENTITLED
TO RELY ON THE CONCLUSIVENESS OF A DECREE ENTERED BY A COURT TO THE
SAME EXTENT THAT OTHER LITIGANTS MAY RELY ON JUDGMENTS FOR OR AGAINST
THEM.  THE PETITIONERS' CONTENTION IS THAT THE NATURE AND EXTENT OF THE
BACK PAY REMEDY ARE PRIMARILY AND PECULIARLY MATTERS LYING WITHIN THE
ADMINISTRATIVE DISCRETION OF THE BOARD (SEE PHELPS DODGE CORP. V. LABOR
BOARD, 313 U.S. 177, 194; LABOR BOARD V. LINK-BELT CO., 311 U.S. 584,
600), AND THAT A COURT'S FUNCTION IS LIMITED TO IMPARTING LEGAL
SANCTION TO THE BACK PAY REMEDY ONCE IT HAS DETERMINED THAT THE BOARD
HAS ACTED WITHIN THE CONFINES OF ITS AUTHORITY, SINCE A COURT IS
PROHIBITED FROM EXERCISING THE DISCRETION REPOSING EXCLUSIVELY IN THE
BOARD; AND IT CAN, THEREFORE, NEITHER AFFIRM NOR REVERSE A BOARD ORDER
RELATING TO BACK PAY ON THE BASIS OF ITS OWN CONCEPTION OF EFFECTUATING
THE POLICIES OF THE ACT. 

ALL THIS IS TRUE, AND WE HAVE ALLOWED THE BOARD GREAT LATITUDE IN
DEVISING REMEDIES WHICH IT DEEMS NECESSARY TO EFFECTUATE THE PURPOSES
OF THE ACT.  BUT IT IS NOT WE WHO ESSAY TO INTERFERE WITH THE
DISCRETION OF AN ADMINISTRATIVE BODY; IT IS THE BOARD WHICH IS SEEKING
TO VACATE A COURT ORDER.  THE BOARD HAD EXERCISED ITS DISCRETION AND
DEVISED A REMEDY.  IT GAVE LONG CONSIDERATION TO THE PROBLEM OF
ADEQUATE RELIEF FOR THE EMPLOYEES DISCRIMINATED AGAINST, AND NOW
ASSERTS THAT IT MADE A MISTAKE.  THAT IS ALL THAT IT ASSERTS - NOT EVEN
THE BOARD CLAIMS THAT THE COURT BELOW IS USURPING ITS FUNCTIONS.  WHAT
THE BOARD COMPLAINS OF IS THAT IT IS NOT PERMITTED TO EXERCISE ITS
ADMITTEDLY WIDE DISCRETION A SECOND TIME, OR ANY NUMBER OF TIMES IT MAY
CHOOSE. 

ADMINISTRATIVE FLEXIBILITY AND JUDICIAL CERTAINTY ARE NOT
CONTRADICTORY; THERE MUST BE AN END TO DISPUTES WHICH ARISE BETWEEN
ADMINISTRATIVE BODIES AND THOSE OVER WHOM THEY HAVE JURISDICTION.  THIS
DOES NOT MEAN THAT THE BOARD COULD NOT FRAME AN ORDER WHICH BY ITS
TERMS REQUIRED MODIFICATION SHOULD CONDITIONS CHANGE.  BUT HERE THE
ORDER WAS DEFINITE AND COMPLETE; IT CONTEMPLATED ONLY ARITHMETICAL
COMPUTATION.  THE CONDITIONS REMAINED THE SAME; WHAT HAD CHANGED WAS
THE BOARD'S AWARENESS OF THEM.  DISCUSSION OF THE BOARD'S PECULIAR
ADMINISTRATIVE ABILITY SERVES NO END WHERE THE MATTER IS ONE OF SIMPLE
MISTAKE.  IT RINGS HOLLOW WHEN IT REFERS TO WHAT ON THE WHOLE IS LITTLE
MORE THAN A MISTAKE IN ARITHMETIC, AND, IN ONE INSTANCE, IS JUST THAT. 

NOT ONLY HAS THIS COURT ALLOWED LARGE SCOPE TO THE DISCRETION OF
ADMINISTRATORS, BUT THE NATIONAL LABOR RELATIONS ACT SPECIFICALLY GIVES
THE BOARD WIDE POWERS OF MODIFICATION.  UNTIL THE TRANSCRIPT OF A CASE
IS FILED IN COURT, THE BOARD MAY, AFTER REASONABLE NOTICE, MODIFY ANY
FINDING OR ORDER IN WHOLE OR IN PART.  FN9  AFTER THE CASE HAS COME
UNDER THE JURISDICTION OF THE COURT, EITHER PARTY MAY APPLY TO THE
COURT FOR REMAND TO THE BOARD.  FN10  THERE IS NO DEARTH OF DISCRETION
OR OPPORTUNITY FOR ITS EXERCISE, BUT OPPORTUNITIES SHOULD NOT BE
UNLIMITED.  IF THE PETITIONERS ARE RIGHT, IT MUST FOLLOW THAT IN ANY
CASE IN WHICH THE COURT REFUSES TO REMAND, THE BOARD NEED MERELY WAIT
UNTIL THE "FINAL" DECREE IS ENTERED AND THEN PROCEED TO RESUME
JURISDICTION, IGNORE THE COURT'S DECREE, AND COME AGAIN TO IT, ASKING
ITS IMPRIMATUR ON A NEW ORDER. 

PETITIONERS PLACE GREAT RELIANCE ON AMERICAN CHAIN & CABLE CO. V.
FEDERAL TRADE COMMISSION, 142 F.2D 909, BUT FAR FROM SUPPORTING THEM,
THAT CASE EMPHASIZES THE LACK OF STATUTORY AUTHORITY HERE FOR WHAT WAS
PERMITTED THERE.  THERE, THE COURT ORDERED THE FEDERAL TRADE COMMISSION
TO CONSIDER A PETITION THAT THE COMMISSION ASK THE COURT TO VACATE ITS
ENFORCING DECREE BECAUSE OF WAR CONDITIONS.  BUT THE STATUTE IN THAT
CASE READS:  "AFTER THE EXPIRATION OF THE TIME ALLOWED FOR FILING A
PETITION FOR REVIEW, IF NO SUCH PETITION HAS BEEN DULY FILED WITHIN
SUCH TIME, THE COMMISSION MAY AT ANY TIME, AFTER NOTICE AND OPPORTUNITY
FOR HEARING, REOPEN AND ALTER, MODIFY, OR SET ASIDE, IN WHOLE OR IN
PART, ANY REPORT OR ORDER MADE OR ISSUED BY IT UNDER THIS SECTION,
WHENEVER IN THE OPINION OF THE COMMISSION CONDITIONS OF FACT OR OF LAW
HAVE SO CHANGED AS TO REQUIRE SUCH ACTION OR IF THE PUBLIC INTEREST
SHALL SO REQUIRE."  FN11  THIS STATUTE SPECIFICALLY ALLOWS THE
COMMISSION TO MODIFY ITS ORDER AFTER IT HAS BECOME FINAL.  AND THE
COURT MERELY HELD THAT IT WAS REASONABLE TO SUPPOSE THAT CONGRESS
INTENDED THE COMMISSION'S POWER TO EXTEND TO CASES WHERE ITS ORDER HAD
BECOME FINAL BY COURT DECREE AS WELL AS TO CASES WHERE THE ORDER HAD
BECOME FINAL BY FAILURE TO APPEAL.  THE NATIONAL LABOR RELATIONS BOARD
IS VESTED WITH NO SUCH POWER.  SECTION 10(D)  FN12  OF THE ACT
PROVIDES:  "UNTIL A TRANSCRIPT OF THE RECORD IN A CASE SHALL HAVE BEEN
FILED IN A COURT, AS HEREINAFTER PROVIDED, THE BOARD MAY AT ANY TIME,
UPON REASONABLE NOTICE AND IN SUCH MANNER AS IT SHALL DEEM PROPER,
MODIFY OR SET ASIDE, IN WHOLE OR IN PART, ANY FINDING OR ORDER MADE OR
ISSUED BY IT." 

THERE IS NO QUESTION THAT THE ACT INTENDED TO VEST EXCLUSIVE
JURISDICTION IN THE COURTS ONCE THE BOARD IN THE EXERCISE OF ITS
DISCRETION HAD REACHED ITS DETERMINATION AND APPLIED FOR ENFORCEMENT. 
THIS PREVENTS CONFLICT OF AUTHORITY.  FORD MOTOR CO. V. LABOR BOARD,
305 U.S. 364.  IN THE FORD CASE, WE SAID, "THE AUTHORITY CONFERRED UPON
THE BOARD BY SEC. 10(D) OF THE NATIONAL LABOR RELATIONS ACT, TO MODIFY
OR SET ASIDE ITS FINDINGS AND ORDER, ENDED WITH THE FILING IN COURT OF
THE TRANSCRIPT OF RECORD."  305 U.S. 364, 368.  BUT THE PETITIONERS AND
THE BOARD CONTEND THAT ALTHOUGH THE COURT HAS ENTERED ITS DECREE, THE
BOARD MAY RESUME JURISDICTION IN THE SAME CASE WHEN IT PLEASES,
DISREGARDING THE COURT'S DECREE.  THIS WOULD, INDEED, BE A PECULIAR
SCHEME OF JURISDICTION, DEVISED TO PREVENT INTERFERENCE WITH THE COURT
WHILE IT IS DELIBERATING TO DETERMINE WHAT ITS DECREE SHALL BE, BUT
ALLOWING THE DECREE TO BE IGNORED AFTER IT IS ENTERED.    THE
CIRCUMSTANCES OF THE CASE SHOW HOW UNFAIR IT WOULD BE TO HOLD WITH THE
PETITIONERS.  THE EMPLOYERS CHALLENGED THE BOARD'S ORDER IN THE
ORIGINAL ENFORCEMENT PROCEEDING, NOT ONLY AS IT AFFECTED THE CHARGED
UNFAIR LABOR PRACTICES, BUT AS TOUCHING THE APPROPRIATE RELIEF.  WHEN
THE CIRCUIT COURT OF APPEALS MODIFIED AND AFFIRMED THE ORDER, THE
COMPANIES HAD AN OPPORTUNITY TO APPLY TO THIS COURT FOR REVIEW, OR TO
COMPLY WITH THE DECREE AS MODIFIED BY THE COURT.  THEY ELECTED TO
FOLLOW THE LATTER COURSE ONLY TO BE CONFRONTED, YEARS LATER, WITH AN
ATTEMPT TO REWRITE A PORTION OF THAT DECREE AT A TIME WHEN THEIR RIGHT
OF REVIEW OF OTHER PORTIONS OF IT HAD EXPIRED. 

WE ARE DEALING HERE WITH A DECREE OF A COURT ENTERED IN A JUDICIAL
PROCEEDING.  THE TERM AT WHICH THE DECREE WAS ENTERED HAS LONG SINCE
EXPIRED.  THE ONLY RECOURSE OPEN TO THE BOARD IS THE SAME THAT WOULD BE
OPEN TO ANY OTHER LITIGANT, NAMELY, A BILL OF REVIEW.  IF THE PETITION
DISCLOSED ANY BASIS FOR SUCH A REVIEW THE ANSWER OF THE EMPLOYERS
SHARPLY RAISED ISSUES OF FACT WHICH REQUIRED RESOLUTION BEFORE ANY
RELIEF IN THE NATURE OF A REVIEW COULD BE GRANTED.  UNLESS THE NATIONAL
LABOR RELATIONS ACT SO REQUIRES, THE BOARD WAS NOT ENTITLED, AS OF
RIGHT, TO HAVE THE DECREE IT HAD PROCURED SET ASIDE IN PART AND THE
CAUSE REMANDED FOR TRIAL DE NOVO IN PART.  THERE IS NOTHING IN THE ACT
TO INDICATE THAT SUCH A DECREE IS DUAL IN CHARACTER; PART OF IT FINAL
AND PART OF IT SUBJECT TO VACATION AND REEXAMINATION BY THE BOARD
REGARDLESS OF THE SHOWING MADE TO THE COURT AND REGARDLESS OF THE VIEW
THE COURT HOLDS AS TO THE PROPRIETY OF SUCH VACATION. 

THE JUDGMENT IS AFFIRMED. 

FN1  49 STAT. 449; 29 U.S.C. 151 FF. 

FN2  29 U.S.C. 158(1), (3). 

FN3  16 N.L.R.B. 727; 18 N.L.R.B. 320. 

FN4  119 F.2D 903. 

FN5  141 F.2D 843. 

FN6  AMALGAMATED UTILITY WORKERS V. CONSOLIDATED EDISON CO., 309 U.S.
261; NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350, 362-363;
PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 193. 

FN7  CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197, 218;
WILLIAMS V. MORGAN, 111 U.S. 684. 

FN8  29 U.S.C. 160(E). 

FN9  29 U.S.C. 160(D). 

FN10  29 U.S.C. 160(E). 

FN11  15 U.S.C. 45(B). 

FN12  29 U.S.C. 160(D). 

MR. JUSTICE MURPHY, DISSENTING. 

THIS CASE RAISES IMPORTANT QUESTIONS CONCERNING THE RELATIONSHIP OF
COURTS AND ADMINISTRATIVE AGENCIES SUBSEQUENT TO THE ENTRY OF A
JUDICIAL DECREE ENFORCING AN ADMINISTRATIVE ORDER.  BECAUSE THE
PARTICULAR FACTS OF THIS CASE ARE SO ESSENTIAL TO A PROPER
DETERMINATION OF THESE QUESTIONS AND BECAUSE THE COURT HAS NOT SEEN FIT
TO REFER TO THE FACTUAL SITUATION IN OTHER THAN GENERAL TERMS, IT IS
NECESSARY TO REVIEW THE FACTS AT SOME LENGTH BEFORE DISCUSSING MY
REASONS FOR DISAGREEMENT WITH THE COURT'S CONCLUSION. 

THE NATIONAL LABOR RELATIONS BOARD, AFTER CONDUCTING PROCEEDINGS
INSTITUTED UPON CHARGES FILED BY THE PETITIONER UNIONS, FOUND THAT THE
RESPONDENT COMPANIES HAD COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION
OF SECTIONS 8(1) AND 8(3) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT.
449, 452.  ON OCTOBER 27, 1939, THE BOARD ENTERED AN ORDER REQUIRING
THE COMPANIES TO CEASE AND DESIST FROM THEIR UNFAIR LABOR PRACTICES AND
TO TAKE CERTAIN AFFIRMATIVE ACTION, INCLUDING THE REINSTATEMENT OF 209
EMPLOYEES WITH BACK PAY.  INASMUCH AS THE RECORD AT THAT TIME CONVINCED
THE BOARD THAT EMPLOYMENT OPPORTUNITIES WITH THE COMPANIES HAD BEEN
PERMANENTLY AND SUBSTANTIALLY CURTAILED SUBSEQUENT TO THE CRITICAL DATE
OF JULY 5, 1935, THE BOARD FELT THE NORMAL REMEDY OF FULL BACK PAY
WOULD BE INAPPROPRIATE.  UNDER THE ASSUMED CIRCUMSTANCES, THE NORMAL
REMEDY WOULD REQUIRE THE COMPANIES TO PAY IN BACK WAGES AN AMOUNT
GREATER THAN THAT WHICH THEY WOULD HAVE PAID TO THE VICTIMS OF
DISCRIMINATION HAD THERE BEEN NO UNFAIR LABOR PRACTICES.  AND IT WOULD
ALSO GIVE THE GROUP OF 209 EMPLOYEES MORE THAN IT PRESUMABLY WOULD HAVE
RECEIVED UNDER CURTAILED EMPLOYMENT OPPORTUNITIES.  THE BOARD THEREFORE
DEVISED AND SET FORTH IN ITS OPINION A SPECIAL FORMULA GIVING EACH
CLAIMANT ONLY A PORTION OF THE FULL BACK PAY TO WHICH HE OTHERWISE
WOULD HAVE BEEN ENTITLED.  FN1 16 N.L.R.B. 727; AMENDED IN 18 N.L.R.B.
320. 

THE COMPANIES THEN FILED A PETITION FOR REVIEW IN THE COURT BELOW ON
NOVEMBER 6, 1939, AND THE BOARD COUNTERED WITH A CROSS-PETITION FOR
ENFORCEMENT OF ITS ORDER.  ON FEBRUARY 10, 1940, THE PETITIONER UNIONS
SOUGHT AND OBTAINED PERMISSION FROM THE COURT TO INTERVENE IN THE
PROCEEDINGS ON THE CLAIM THAT SINCE CERTAIN OF THEIR MEMBERS HAD BEEN
ALLOWED AFFIRMATIVE RELIEF BY THE BOARD THEY WERE "VITALLY CONCERNED
WITH THE ENFORCEMENT OF SAID ORDER OF THE BOARD."  LEAVE WAS ALSO GIVEN
THEM TO FILE BRIEFS AND PARTICIPATE IN THE ORAL ARGUMENT. 
SUBSEQUENTLY, ON MAY 21, 1941, THE COURT BELOW RENDERED AN OPINION
AFFIRMING THE BOARD'S ORDER WITH CERTAIN MODIFICATIONS NOT HERE
MATERIAL AND A DECREE ENFORCING THE ORDER WAS ENTERED ACCORDINGLY.  119
F.2D 903. 

ON AUGUST 23, 1941, THE COMPANIES OFFERED REINSTATEMENT TO THE 209
EMPLOYEES, THEREBY FIXING THAT DAY AS THE TERMINAL DATE OF THE PERIOD
COMMENCING JULY 5, 1935, FOR WHICH BACK PAY WAS DUE UNDER THE TERMS OF
THE COURT'S DECREE ENFORCING THE BOARD'S ORDER.  THE COMPANIES
SUBMITTED THEIR BACK PAY COMPUTATIONS TO THE BOARD IN MAY, 1942, AND
TENDERED THE SUM OF $8,409.39 IN PURPORTED FULL PAYMENT OF ALL BACK
PAY, ALTHOUGH THEY LATER AVERRED THAT NO MORE THAN $5,400 WAS DUE UNDER
THE FORMULA SPECIFIED BY THE BOARD.  IN ACCORDANCE WITH ITS USUAL
PROCEDURE THE BOARD THEREUPON EXAMINED THE PERTINENT PAY ROLLS AND
RECORDS OF THE COMPANIES TO VERIFY THEIR COMPUTATIONS AND TO DETERMINE
WHETHER THERE HAD BEEN COMPLIANCE WITH THE DECREE.  THIS INVESTIGATION
WAS COMPLETED IN OCTOBER, 1942, AT WHICH TIME THE BOARD BECAME
CONVINCED THAT THE PROVISIONS OF ITS ORDER AS ENFORCED BY THE COURT
CONTAINED CERTAIN ERRORS AND MISTAKES RELATING TO BACK PAY AND THAT IN
FRAMING THE SPECIAL FORMULA IT HAD MISCONCEIVED THE FACTS AS TO THE
AVAILABILITY OF EMPLOYMENT WITH THE COMPANIES FOR THE 209 EMPLOYEES. 
IT APPEARED TO THE BOARD THAT THE COMPANIES DURING THE PERIOD FROM JULY
5, 1935, TO AUGUST 23, 1941, HAD BEEN IN A POSITION TO ACCORD FULL
EMPLOYMENT TO THESE 209 CLAIMANTS AS WELL AS TO ALL OTHER FORMER
EMPLOYEES REAPPLYING FOR WORK AND THAT THE NORMAL BACK-WAGE
COMPUTATIONS SHOULD HAVE BEEN USED. 

THE BOARD ON FEBRUARY 1, 1943, FILED A PETITION WITH THE COURT BELOW
SETTING FORTH THE SITUATION.  IT REQUESTED THAT THE PERTINENT
PARAGRAPHS OF THE COURT'S DECREE ENFORCING THE BOARD'S ORDER BE VACATED
AND THAT SO MUCH OF THE CAUSE AS WAS THEREBY AFFECTED BE REMANDED TO
THE BOARD FOR FURTHER CONSIDERATION.  THE COMPANIES FILED AN ANSWER. 
THE UNIONS ALSO FILED A BRIEF AND PARTICIPATED IN THE ORAL ARGUMENT ON
THIS MATTER.  THE COURT, TREATING THE BOARD'S PETITION AS ONE "IN THE
NATURE OF A BILL OF REVIEW TO SET ASIDE, FOR FRAUD, MISTAKE AND NEWLY
DISCOVERED EVIDENCE, PARAGRAPHS 2(D) AND 3(B) OF THE FINAL DECREE OF
THIS COURT," DISMISSED THE PETITION ON ITS MERITS.  141 F.2D 843.  THE
COURT LATER DENIED WITHOUT OPINION THE BOARD'S PETITION FOR REHEARING
AND THE UNION'S SEPARATE MOTION TO MODIFY THE DECREE OR TO VACATE THE
PARAGRAPHS IN QUESTION AND REMAND TO THE BOARD. 

                                  I 

TURNING TO THE FACTS RELATIVE TO THE ALLEGED ERROR, WE FIND THAT THE
BOARD IN FRAMING ITS BACK PAY FORMULA FOR THE 209 EMPLOYEES EXPRESSLY
DESIRED TO MAKE THEM WHOLE AND "TO RESTORE THE SITUATION, AS NEARLY AS
POSSIBLE, TO THAT WHICH WOULD HAVE OBTAINED BUT FOR THE ILLEGAL
DISCRIMINATION."  16 N.L.R.B. AT 834.  NORMALLY THE BOARD WOULD HAVE
DIRECTED PAYMENT OF FULL BACK PAY TO EACH CLAIMANT FROM THE DATE OF
DISCRIMINATION TO THE DATE OF OFFER OF REINSTATEMENT OR PLACEMENT ON A
PREFERENTIAL REHIRING LIST, ALLOWING DUE CREDIT FOR NET INTERIM
EARNINGS RECEIVED FROM OTHER EMPLOYMENT.  BUT THE BOARD FELT THAT "THE
PECULIAR FACTUAL SITUATION HERE PRESENTS UNUSUAL DIFFICULTIES IN
FASHIONING OUR REMEDY SO AS TO RESTORE THE STATUS QUO," 16 N.L.R.B. AT
834, AND THAT A SPECIAL REMEDY SHOULD BE DEVISED. 

IT APPEARS THAT A STRIKE, BEGINNING ON MAY 8, 1935, CAUSED THE
COMPANIES TO CLOSE DOWN FOR SEVERAL WEEKS.  ON THAT DAY APPROXIMATELY
1,100 MEN WERE EMPLOYED BY THE COMPANIES.  OPERATIONS WERE RESUMED ON
JUNE 12 AND THE BOARD FOUND THAT THEREAFTER THE COMPANIES
DISCRIMINATORILY REFUSED TO REHIRE THE 209 EMPLOYEES IN QUESTION,
REFERRED TO AS THE CLAIMANTS.  EVIDENCE WAS INTRODUCED BY THE
COMPANIES, HOWEVER, TO SHOW THAT AFTER JULY 5, 1935, THE EFFECTIVE DATE
OF THE ACT, CERTAIN OF THEIR MINES WERE SOLD, MANY OPERATIONS
SUSPENDED, PRODUCTION METHODS REORGANIZED AND SPECIFIC JOBS ABOLISHED -
RESULTING IN A DRASTIC CURTAILMENT OF THE NUMBER OF AVAILABLE JOBS. 
ACCORDING TO THE BOARD, ONLY ABOUT 600 MEN WERE EMPLOYED BY JULY 5. 
SOME 350 OF THE 500 EMPLOYEES NOT THEN WORKING WERE CLAIMANTS IN THE
CASE, ALTHOUGH DISCRIMINATION WAS FOUND ONLY AS TO 209 OF THEM.  AFTER
JULY 5 A SUBSTANTIAL NUMBER OF ADDITIONAL MEN WERE PUT TO WORK, BUT THE
TOTAL NUMBER OF EMPLOYEES WAS STILL CONSIDERABLY SHORT OF THE PRE
STRIKE LEVEL OF 1,100.  THE BOARD APPARENTLY ASSUMED THAT ALL 1,100 MEN
WOULD REAPPLY FOR WORK AFTER THE SETTLEMENT OF THE STRIKE, THUS MAKING
THE NUMBER OF AVAILABLE JOBS INSUFFICIENT.  AS IT LATER BECAME EVIDENT,
HOWEVER, NOT ALL OF THE 1,100 REAPPLIED AND THERE WERE, ACCORDING TO
THE BOARD, SUFFICIENT OPPORTUNITIES AT SUBSTANTIALLY ALL TIMES FOR ALL
WHO ACTUALLY REAPPLIED, INCLUDING THE 209 VICTIMS OF DISCRIMINATION. 

ON THE ASSUMPTION THAT "THERE WERE PRESUMABLY AT ALL TIMES LESS JOBS
OPEN THAN OLD EMPLOYEES AVAILABLE," 16 N.L.R.B. AT 834, AND THAT THERE
WAS NO WAY OF KNOWING WHICH MEN WOULD HAVE BEEN REINSTATED HAD THE
COMPANIES ACTED LEGALLY, THE BOARD DEVISED A SPECIAL FORMULA FOR
COMPUTING BACK PAY.  IT DIRECTED THAT THERE BE COMPUTED AS A LUMP SUM
THE TOTAL AMOUNT OF WAGES ACTUALLY PAID TO ALL PERSONS HIRED OR
REINSTATED FROM AND AFTER JULY 5, 1935, UP TO THE DATE OF COMPLIANCE
WITH THE BOARD ORDER REINSTATING OR PLACING THE 209 EMPLOYEES ON A
PREFERENTIAL LIST.  THE BOARD INDICATED THAT "WE SHALL NOT CREDIT THE
ENTIRE LUMP SUM TO THE CLAIMANTS DISCRIMINATED AGAINST, SINCE WE CANNOT
ASSUME THAT THEY AND ONLY THEY WOULD HAVE BEEN GIVEN THESE JOBS HAD THE
RESPONDENTS ACTED LAWFULLY.  BUT WE CAN AND DO ASSUME FOR THIS PURPOSE
THAT A PROPORTIONATE AMOUNT OF SUCH CLAIMANTS WOULD HAVE BEEN GIVEN THE
JOBS."  16 N.L.R.B. AT 835, 836.  ACCORDINGLY, THE BOARD DIRECTED THAT
A PROPORTION OF THE LUMP SUM SHOULD BE DISTRIBUTED TO THE 209
CLAIMANTS.  THIS PROPORTION WAS TO BE DETERMINED BY A GOVERNING
FRACTION HAVING AS ITS NUMERATOR THE NUMBER OF CLAIMANTS AND AS ITS
DENOMINATOR THE TOTAL NUMBER OF CLAIMANTS AND ALL OTHER PRE-STRIKE
EMPLOYEES WHO REAPPLIED FOR WORK, WHETHER SUCCESSFULLY OR NOT, AFTER
JULY 5, 1935.  THUS, BY WAY OF ILLUSTRATION, IF THE LUMP SUM AMOUNTED
TO $360,000 AND THERE WERE 200 CLAIMANTS AND 100 OTHER REAPPLICANTS,
THE GOVERNING FRACTION WOULD BE TWO-THIRDS AND THE BASIC SUM OF
$240,000 WOULD BE DIVIDED AMONG THE 200 CLAIMANTS, WITH ADJUSTMENTS
BEING MADE FOR NET EARNINGS ELSEWHERE.  NEITHER THE BOARD'S ORDER NOR
THE COURT'S ENFORCING DECREE FIXED THE AMOUNT OF BACK PAY DUE UNDER
THIS FORMULA.  THE DETERMINATION OF THAT SUM WAS LEFT TO BE MADE AFTER
THE PERIOD OF DISCRIMINATION ENDED. 

FOLLOWING THE CLOSE OF THE PERIOD OF DISCRIMINATION, THE BOARD
EXAMINED THE PAYROLLS AND OTHER RECORDS OF THE COMPANIES TO DETERMINE
THE EXACT AMOUNT OF BACK WAGES DUE THE 209 CLAIMANTS.  ACCORDING TO THE
BOARD, THIS INVESTIGATION REVEALED THAT, DESPITE ANY CURTAILMENT OF
EMPLOYMENT, THE COMPANIES AT VIRTUALLY ALL TIMES AFTER JULY 5, 1935,
HAD JOBS OPENING UP IN NUMBERS EQUAL TO AND AT TIMES IN EXCESS OF THE
TOTAL NUMBER OF CLAIMANTS AND REAPPLICANTS AND THAT SUCH POSITIONS WERE
AVAILABLE AT VIRTUALLY ALL TIMES TO ALL THE CLAIMANTS AND
REAPPLICANTS.  THIS INFORMATION WAS SUBMITTED BY THE BOARD IN SUPPORT
OF ITS PETITION TO VACATE AND REMAND THE PORTIONS OF THE COURT'S DECREE
RELATING TO BACK PAY.  IT CLAIMED THAT IT HAD BEEN LED INTO ERROR IN
FRAMING ITS ORIGINAL FORMULA BY THE EVIDENCE AND CONTENTION OF THE
COMPANIES RELATIVE TO CURTAILED EMPLOYMENT AND THAT SUCH A FORMULA,
UNDER THE FACTS AS THEY NOW APPEARED TO THE BOARD, WOULD BE GROSSLY
INEQUITABLE TO THOSE WHO HAD SUFFERED DEPRIVATION OF EARNINGS AS A
CONSEQUENCE OF THE COMPANIES' UNFAIR LABOR PRACTICES. 

THE PARTIES DIFFER AS TO WHETHER THE BOARD AT THE TIME IT FRAMED THE
SPECIAL FORMULA WAS AWARE OF OR HAD ACCESS TO THE FACTS WHICH IT NOW
RELIES UPON.  THE BOARD ALLEGES THAT IT WAS IGNORANT OF THESE FACTS AND
THUS MISCONCEIVED THE REMEDY.  THE COMPANIES STATE, HOWEVER, THAT THE
BOARD ACTUALLY KNEW OF THESE FACTS AND THAT, IN THE EXERCISE OF ITS
DISCRETION, IT DECREED THAT PARTIAL RATHER THAN FULL BACK WAGES SHOULD
BE PAID.  WE NEED NOT PAUSE TO DETERMINE THIS CONTROVERSY FOR IT
APPEARS OBVIOUS THAT, ASSUMING THE FIGURES SUBMITTED BY THE BOARD ARE
TRUE, THE SPECIAL FORMULA SPECIFIED BY THE BOARD IS GROSSLY INADEQUATE
AND FALLS FAR SHORT OF ACHIEVING THE EXPRESSED DESIRE OF THE BOARD IN
THIS CASE "TO RESTORE THE SITUATION, AS NEARLY AS POSSIBLE, TO THAT
WHICH WOULD HAVE OBTAINED BUT FOR THE ILLEGAL DISCRIMINATION."    IF IT
WERE TRUE THAT THERE WERE INSUFFICIENT JOBS FOR THE 209 CLAIMANTS AS
WELL AS FOR THE OTHER REAPPLICANTS THE SPECIAL FORMULA WOULD BE
APPROPRIATE.  THEN IT COULD BE SAID THAT IT WAS IMPOSSIBLE TO TELL
WHETHER THE 209 CLAIMANTS WOULD ALL HAVE BEEN EMPLOYED BY THE COMPANIES
SUBSEQUENT TO JULY 5, 1935, AND THAT IT WAS THEREFORE NECESSARY TO
APPORTION THE AVAILABLE JOBS AMONG CLAIMANTS AND OTHER REAPPLICANTS FOR
PURPOSES OF DETERMINING HOW MUCH BACK PAY WAS DUE THE CLAIMANTS.  BUT
IF IT IS A FACT THAT THERE WERE SUFFICIENT EMPLOYMENT OPPORTUNITIES FOR
ALL THE 209 CLAIMANTS AND THE REAPPLICANTS AT VIRTUALLY ALL TIMES, THE
BACK PAY FORMULA FRAMED BY THE BOARD BECOMES INADEQUATE.  SINCE ALL OF
THE CLAIMANTS WOULD THEN PRESUMABLY HAVE BEEN EMPLOYED BY THE COMPANIES
AT ALL TIMES BUT FOR THE DISCRIMINATION, ALL OF THEM SUFFERED THE LOSS
OF THE FULL WAGES WHICH THEY WOULD HAVE RECEIVED AND ANY FORMULA WHICH
GIVES THEM LESS THAN THAT AMOUNT FAILS TO MAKE THEM WHOLE.  AND THE
COMPANIES ESCAPE PAYING THE FULL AMOUNT OF WAGES THEY WOULD HAVE PAID
HAD THEY ACTED LEGALLY. 

WE CANNOT ASCRIBE TO THE BOARD A DELIBERATE INTENTION TO PRESCRIBE
SOMETHING LESS THAN A FULL MAKE WHOLE REMEDY.  NOTHING APPEARS IN THE
BOARD'S OPINION OR ORDER TO THAT EFFECT.  INDEED, THE BOARD'S
STATEMENTS OF ITS OBJECTIVES IN THIS CASE EXPRESSLY NEGATIVE SUCH AN
INTENTION.  AND THE REASON GIVEN FOR FASHIONING THE SPECIAL FORMULA -
THE FACT THAT THERE WERE PRESUMABLY AT ALL TIMES LESS JOBS OPEN THAN
OLD EMPLOYEES AVAILABLE - IS CONSISTENT ONLY WITH A DESIRE TO
COMPENSATE THE CLAIMANTS AS FULLY AND AS EQUITABLY AS POSSIBLE UNDER
THE FACTS AS THEN CONTEMPLATED. 

IN ADDITION TO THE ALLEGED INAPPROPRIATENESS OF THE FORMULA AS A
WHOLE, THE BOARD CLAIMS THAT THERE ARE NUMEROUS OTHER ERRORS IN THE
BACK PAY PROVISIONS THAT WARRANT REMAND FOR PURPOSES OF CORRECTION. 
THUS FOOTNOTE 185 OF THE BOARD'S OPINION INADVERTENTLY CONTAINS A
SERIOUS OMISSION WHICH, CONTRARY TO THE BOARD'S INTENTION, LIMITS THE
LUMP SUM USED IN THE FORMULA TO THE EARNINGS OF ONLY 209 EMPLOYEES
RATHER THAN TO THE EARNINGS OF 209 EMPLOYEES PLUS THE NUMBER OF OLD
EMPLOYEES REAPPLYING.  FN2  THE GOVERNING FRACTION INCLUDES THE LATTER
EMPLOYEES AND THE LUMP SUM SHOULD IN TURN REFLECT THEIR EARNINGS. 
OTHERWISE THE CLAIMANTS ARE LIMITED TO A SMALL PART OF THEIR
PROPORTIONATE LOSS IN WAGES.  MOREOVER, THE FORMULA ILLOGICALLY
REQUIRES THAT THERE BE DEDUCTED FROM EACH CLAIMANT'S SHARE THE FULL
AMOUNT RATHER THAN A PRO RATA SHARE OF HIS INTERIM EARNINGS.  THESE
ERRORS AND CERTAIN AMBIGUITIES  FN3  SERVE TO MAKE THE PARTIAL BACK PAY
FORMULA AN INEFFECTIVE MEANS FOR MAKING THE EMPLOYEES AS WHOLE AS
POSSIBLE EVEN ON THE ASSUMPTION THAT EMPLOYMENT OPPORTUNITIES HAD BEEN
CURTAILED.  THE REMEDY WHICH THE BOARD ORIGINALLY FOUND TO BE ESSENTIAL
TO CARRY OUT THE PURPOSES OF THE ACT IS THEREBY RENDERED INADEQUATE. 

THE PRACTICAL IMPACT OF THIS SITUATION ON THE EMPLOYEES INVOLVED IS
SERIOUS AND SUBSTANTIAL.  UNDER THE BOARD'S PARTIAL AND MATHEMATICALLY
INACCURATE BACK PAY FORMULA, WHICH THIS COURT NOW INSISTS MUST BE
FOLLOWED, THE COMPANIES CLAIM THAT THE 209 EMPLOYEES ARE ENTITLED TO
ONLY $5,400.  BUT IF THE TRUE FACTS ARE AS REPRESENTED BY THE BOARD AND
IF IT SHOULD BE DETERMINED THAT THE FULL BACK PAY FORMULA SHOULD BE
UTILIZED UNDER SUCH CIRCUMSTANCES, APPROXIMATELY $800,000 WOULD BE DUE
THESE 209 EMPLOYEES AFTER ALLOWANCE FOR INTERIM EARNINGS ELSEWHERE. 
THUS THESE EMPLOYEES MUST BEAR THE LOSS OF NEARLY $795,000 IN UNPAID
BACK WAGES RESULTING FROM THE UNFAIR LABOR PRACTICES OF THE COMPANIES. 
ON THEM RESTS THE PENALTY FOR WHAT THIS COURT EUPHEMISTICALLY CALLS
"LITTLE MORE THAN A MISTAKE IN ARITHMETIC." 

IT IS THUS CLEAR THAT UNLESS THE BOARD IS GIVEN SOME OPPORTUNITY TO
REEXAMINE ITS BACK PAY REMEDY MUCH OF THE LOSS RESULTING FROM THE
COMPANIES' UNFAIR LABOR PRACTICES MAY BE SHIFTED FROM THE COMPANIES TO
THE EMPLOYEES AND THE PUBLIC POLICY OF THE ACT MAY BE LARGELY
CIRCUMVENTED.  OUR CONCERN HERE IS NOT WITH THE TRUTH OF THE FACTS
ALLEGED BY THE BOARD OR WITH THE APPROPRIATENESS OF ANY OTHER REMEDY
THE BOARD MIGHT DEVISE.  IT IS ENOUGH THAT THE BOARD HAS CAST
SUFFICIENT DOUBT ON THE APPROPRIATENESS AND CORRECTNESS OF ITS ORIGINAL
REMEDY TO WARRANT RESUBMISSION OF THE MATTER TO THE BOARD FOR FURTHER
CONSIDERATION.  THE COURT TODAY DOES NOT ATTEMPT TO DENY THAT THE
SITUATION IS AN INTOLERABLE ONE IN LIGHT OF THE ALLEGED FACTS OR THAT
MODIFICATION OR REMAND OF THE BACK PAY PROVISIONS OF THE DECREE IS A
REASONABLE REQUEST UNDER SUCH CIRCUMSTANCES.  HENCE, UNLESS SOME
PRINCIPLE OF LAW OR STATUTE COMPELS THE OPPOSITE CONCLUSION, SUCH A
REMAND SHOULD HAVE BEEN MADE. 

                                  II 

THE PERTINENT LEGAL AND STATUTORY RULES, IN MY OPINION, DO NOT
PRECLUDE REMAND OF THE BACK PAY PROVISIONS OF THE COURT'S DECREE TO THE
BOARD UNDER THESE CIRCUMSTANCES. 

THE COMPANIES ARGUE THAT THE EXERCISE OF THE BOARD'S DISCRETION IN
DEVISING A BACK PAY FORMULA BECAME A FINALITY BY VIRTUE OF THE
ENFORCING DECREE OF THE COURT BELOW AND THAT THIS FORMULA CANNOT BE
MODIFIED OR RECONSIDERED AT THIS LATE DATE.  IT IS CLAIMED THAT ALL
RIGHTS AND LIABILITIES UNDER THE DECREE WERE FIXED AND FULLY ACCRUED ON
AUGUST 23, 1941, THE TERMINAL DATE OF THE PERIOD OF DISCRIMINATION, AND
THAT THE COURT BELOW HAD NO JURISDICTION TO VACATE OR REMAND ANY
PORTION OF THAT DECREE SUBSEQUENT TO THE END OF THE TERM IN WHICH IT
WAS ENTERED. 

BUT IT IS PLAIN THAT THE BACK PAY FORMULA, AS ENFORCED BY THE COURT'S
DECREE, WAS AT MOST PROVISIONAL AND TENTATIVE IN CHARACTER.  CF. UNITED
STATES V. SWIFT & CO., 286 U.S. 106, 114.  IT DID NOT PRETEND TO BE
BASED UPON DETAILED AND COMPREHENSIVE FINDINGS AS TO ACTUAL EMPLOYMENT
OPPORTUNITIES AND ACTUAL LOSSES SUFFERED DURING THE ENTIRE PERIOD OF
DISCRIMINATION, FACTS WHICH WERE IMPOSSIBLE TO DETERMINE UNTIL AFTER
THE CLOSE OF THAT PERIOD.  EVEN THOUGH THE HEARING CLOSED ON APRIL 29,
1938, THAT PART OF THE ORDER RELATING TO BACK PAY SPOKE AS OF JULY 5,
1935.  THE BOARD MERELY ASSUMED FROM CERTAIN EVIDENCE AND ALLEGATIONS
THAT THERE WOULD BE DECREASED EMPLOYMENT OPPORTUNITIES AT ALL TIMES
AFTER JULY 5, 1935, AND LEFT TO THE FUTURE THE PROBLEM OF UNCOVERING
THE COMPLETE FACTS.  THE FORMULA WAS DRAWN IN LIGHT OF THAT ASSUMPTION,
AN ASSUMPTION THAT NECESSARILY CONTEMPLATED THAT UNDISCLOSED OR NEW
FACTS OR A REMOVAL OF A MISCONCEPTION OF THE TRUE FACTS MIGHT CALL FOR
AN ADJUSTMENT IN THE REMEDY TO BE APPLIED.  AND THE ENFORCING DECREE OF
THE COURT IN NO WAY AFFECTED THE TENTATIVE AND UNEXECUTED NATURE OF
THIS FORMULA. 

THE RIGHTS AND LIABILITIES UNDER SUCH A BACK PAY FORMULA COULD NOT
BECOME FINAL UNTIL THE BOARD OR THE COURTS WERE SATISFIED WITH THE
APPLICATION OF THE FORMULA TO THE ACTUAL FACTS OR UNTIL THE FORMULA
RIPENED INTO AN EXECUTED DECREE.  THE SOLE PURPOSE OF THE REMEDY WAS TO
VINDICATE THE PUBLIC POLICY BY COMPENSATING THE EMPLOYEES FOR THE
LOSSES THEY HAD SUFFERED DUE TO THE UNFAIR LABOR PRACTICES OF THE
COMPANIES RATHER THAN TO PUNISH THE COMPANIES.  UNTIL IT WAS
AUTHORITATIVELY DETERMINED THAT THE REMEDY DID ACCOMPLISH THIS PURPOSE
AS APPLIED TO THE ACTUAL FACTS, OR UNTIL THE DECREE WAS FULLY EXECUTED,
NO RIGHTS AND LIABILITIES CAN BE SAID FINALLY TO HAVE ACCRUED.  THUS
THE COMPANIES HAD NO VESTED RIGHT ON THE DAY THEY CEASED THEIR
DISCRIMINATORY POLICY RELATIVE TO THE 209 EMPLOYEES TO COMPENSATE THOSE
EMPLOYEES ACCORDING TO A FORMULA WHICH WOEFULLY FAILED TO MAKE THE
EMPLOYEES WHOLE.  THE RELEVANT PORTIONS OF THE DECREE COULD STILL BE
MODIFIED OR REMANDED. 

AS THE COURT BELOW RECOGNIZED, IT RETAINED "JURISDICTION OVER THE
ENFORCEMENT OF ALL OF THE PROVISIONS OF ITS DECREE WHICH REMAIN
UNEXECUTED."  141 F.2D AT 845.  A COURT HAS THE UNQUESTIONED AND
CONTINUING POWER TO MAKE CORRECTIONS AND CHANGES IN ITS UNEXECUTED
DECREES EVEN AFTER THE TERM OF COURT IN WHICH THEY WERE ORIGINALLY
ENTERED HAS EXPIRED.  SEE ROOT V. WOOLWORTH, 150 U.S. 401; SHIELDS V.
THOMAS, 18 HOW.  253; 8 CYCLOPEDIA OF FEDERAL PROCEDURE (2D ED.)  SEC. 
3598 AND CASES THERE CITED.  THIS INCLUDES THE POWER TO MODIFY OR GRANT
ADDITIONAL RELIEF IN THE INTEREST OF ENFORCING OR EFFECTUATING
DECREES.  THUS THE DOCTRINE OF FINALITY OF JUDGMENT HAS NO RELEVANCE AS
APPLIED TO UNEXECUTED DECREES AND CANNOT BE UTILIZED TO DENY POWER IN
THE COURT BELOW TO MODIFY OR REMAND THE BACK PAY PROVISIONS OF THE
DECREE TO THE BOARD.  NO SPECIFIC PROVISION IN THE NATIONAL LABOR
RELATIONS ACT, MOREOVER, IS NECESSARY IN ORDER TO APPRECIATE THAT ANY
DECREE REQUIRING FUTURE ACTION IS UPON ENTRY PARTLY FINAL AND PARTLY
UNEXECUTED.  "A CONTINUING DECREE OF INJUNCTION DIRECTED TO EVENTS TO
COME IS SUBJECT ALWAYS TO ADAPTATION AS EVENTS MAY SHAPE THE NEED." 
UNITED STATES V. SWIFT & CO., 286 U.S. 106, 114.  AS TO THE UNEXECUTED
PORTION OF THE DECREE BELOW, FINALITY OBVIOUSLY HAS NOT ACCRUED. 

ON THE FACTS ALLEGED IN THE BOARD'S PETITION AND IN THE UNIONS'
MOTION, THE COURT BELOW PLAINLY ERRED IN REFUSING TO ALLOW THE BOARD TO
RECONSIDER THE BACK PAY REMEDY.  UNDER SEC. 10(C) OF THE ACT, THE BOARD
IS AUTHORIZED TO REQUIRE SUCH AFFIRMATIVE REMEDIAL ACTION, "INCLUDING
REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE
THE POLICIES OF THIS ACT."  AS THE COURT RECOGNIZES, THE NATURE AND
EXTENT OF THE BACK PAY REMEDY ARE THUS PRIMARILY AND PECULIARLY MATTERS
LYING WITHIN THE ADMINISTRATIVE DISCRETION OF THE BOARD, AND A COURT'S
FUNCTION IS LIMITED TO IMPARTING LEGAL SANCTION TO THE BACK PAY REMEDY
ONCE IT HAS DETERMINED THAT THE BOARD HAS ACTED WITHIN THE CONFINES OF
ITS AUTHORITY.  A COURT CANNOT EXERCISE THE DISCRETION THAT CONGRESS
HAS GIVEN ONLY TO THE BOARD.  BUT IF, AS CONCEDED, A COURT CAN NEITHER
AFFIRM NOR REVERSE A BOARD ORDER RELATING TO BACK PAY ON THE BASIS OF
ITS OWN CONCEPTION OF EFFECTUATING THE POLICIES OF THE ACT, NO LESS
SHOULD IT REFUSE TO ALLOW THE BOARD TO RECONSIDER AN UNEXECUTED REMEDY
ONCE PROPOSED IF THE BOARD REASONABLY FEELS THAT THE PUBLIC POLICY
WHICH IT GUARDS DEMANDS SUCH ACTION.  THE SPECIAL COMPETENCE OF THE
BOARD TO REQUIRE AFFIRMATIVE REMEDIAL ACTION NECESSARILY INCLUDES A
SPECIAL COMPETENCE TO MODIFY, AMEND OR REPEAL SUCH A REQUIREMENT PRIOR
TO ITS CONSUMMATION. 

IT DOES NOT FOLLOW, AS THE COURT ASSUMES, THAT THE BOARD AT ANY TIME
AND FOR ANY REASON SATISFACTORY TO IT MAY RECALL THAT PART OF THE
ENFORCING DECREE RELATING TO AFFIRMATIVE RELIEF AND START AFRESH.  THE
REQUIREMENT OF REASONABLENESS APPLIES HERE AS ELSEWHERE.  IF THE
BOARD'S REQUEST IS SO BASELESS AND UNNECESSARY AS TO EXCEED THE BOUNDS
OF REASONABLENESS, REFUSAL TO REMAND LIES WITHIN THE SOUND DISCRETION
OF THE COURT.  BUT HERE IT IS UNDENIABLE THAT IF THE FACTS STATED BY
THE BOARD ARE TRUE THE UNEXECUTED REMEDY IS ENTIRELY INADEQUATE TO
ACHIEVE THE PURPOSES FOR WHICH IT WAS DESIGNED.  EMPLOYEES SUFFER FOR
THE SINS OF THEIR EMPLOYERS AND THE PUBLIC POLICY UNDERLYING THE
REQUIREMENT OF BACK PAY IS LARGELY FRUSTRATED.  TO DENY A REMAND UNDER
SUCH CIRCUMSTANCES IS TO ABUSE A COURT'S DISCRETION AND TO TRANSFORM
THE JUDICIAL SYSTEM INTO A WEAPON AGAINST THE INNOCENT VICTIMS OF AN
ADMINISTRATIVE ERROR. 

THE RESPONSIBILITY OF THE BOARD FOR PROPOSING REMEDIES TO EFFECTUATE
THE POLICIES OF THE ACT IS A CONTINUING ONE.  CF. FRANKS BROS. CO. V.
LABOR BOARD, 321 U.S. 702, 705-706.  IT IS NOT NECESSARILY LIFTED BY
REASON OF THE ENTRY OF A JUDICIAL DECREE OF ENFORCEMENT, ALTHOUGH IT
MAY BE SUSPENDED TEMPORARILY DURING THE PENDENCY OF REVIEW PROCEEDINGS
IN THE APPELLATE COURT.  FORD MOTOR CO. V. LABOR BOARD, 305 U.S. 364. 
IF AT ANY TIME BEFORE THE DECREE IS EXECUTED THE BOARD BECOMES
CONVINCED THAT THE REMEDY AS TENTATIVELY APPROVED BY THE COURT WILL NO
LONGER SERVE THE STATUTORY PURPOSES, REASON AND JUSTICE DICTATE THAT
THE BOARD SHOULD HAVE THE OPPORTUNITY TO RECONSIDER THE MATTER. 
WHETHER THE INADEQUACY OF THE REMEDY BE DUE TO INADVERTENCE,
NEGLIGENCE, FRAUD OR OTHER REASONS, THERE IS NO RECOGNIZABLE PUBLIC OR
PRIVATE INTEREST IN EXECUTING SUCH A REMEDY.  TO HOLD THAT A PARTICULAR
BACK PAY REMEDY MUST BE IMPOSED WHEN THE BOARD REASONABLY SUSPECTS THAT
IT IS INCORRECT OR INADEQUATE IS TO PROJECT LEGALISM TO AN ABSURD AND
DANGEROUS LENGTH. 

WE ARE NOT DEALING HERE WITH AN ORDINARY COMMON LAW MONEY JUDGMENT
WHICH ONE PARTY SEEKS TO SET ASIDE FOR FRAUD, MISTAKE, OR NEWLY
DISCOVERED EVIDENCE.  NOR ARE WE MET WITH AN ORDINARY LITIGANT SEEKING
RELIEF FOR ITSELF FROM A JUDICIAL DECREE.  WE ARE CONCERNED, RATHER,
WITH THE ATTEMPT OF AN ADMINISTRATIVE AGENCY TO EFFECTUATE THE POLICIES
SET FORTH IN A CONGRESSIONAL MANDATE.  UNTIL THOSE POLICIES ARE
EFFECTUATED THROUGH THE ENFORCEMENT AND EXECUTION OF STATUTORY
REMEDIES, THE AGENCY AND THE COURTS SHOULD COORDINATE THEIR EFFORTS TO
REALIZE THE PLAIN WILL OF THE PEOPLE.  UNITED STATES V. MORGAN, 307
U.S. 183, 191. 

FN1  THIS SPECIAL FORMULA WAS NOTED BY THIS COURT IN PHELPS DODGE
CORP. V. LABOR BOARD, 313 U.S. 177, 198-199, NOTE 7. 

FN2  THIS FOOTNOTE APPEARS AT 16 N.L.R.B. AT 835.  WITH THE WORDS IN
BRACKETS ORIGINALLY BEING OMITTED BY THE BOARD AND BEING ADDED HERE TO
INDICATE THE BOARD'S INTENDED MODIFICATION, THIS FOOTNOTE READS AS
FOLLOWS: 

"IF AT ANY GIVEN TIME DURING THIS PERIOD THE NUMBER OF SUCH NEW OR
REINSTATED EMPLOYEES THEN WORKING EXCEEDS THE NUMBER OF CLAIMANTS
DISCRIMINATED AGAINST (PLUS THE NUMBER OF OLD EMPLOYEES REAPPLYING),
ONLY THE EARNINGS OF A NUMBER OF SUCH EMPLOYEES EQUAL TO THE NUMBER OF
CLAIMANTS DISCRIMINATED AGAINST (PLUS THE NUMBER OF OLD EMPLOYEES
REAPPLYING) SHALL BE COUNTED IN COMPUTING THE LUMP SUM  ...." 

FN3  THE BOARD CLAIMS THAT SINCE THE NUMBER OF CLAIMANTS AND
REAPPLICANTS VARIES FROM WEEK TO WEEK, THE FORMULA IS AMBIGUOUS AS TO
WHETHER A SINGLE GOVERNING FRACTION, BASED ON THE AVERAGE OR ON THE
MAXIMUM NUMBERS OF CLAIMANTS AND REAPPLICANTS, OR SUCCESSIVE GOVERNING
FRACTIONS, BASED ON THE ACTUAL NUMBERS, ARE TO BE CONSTRUCTED FOR THE
PERIOD OF DISCRIMINATION.  IT IS ALSO SAID THAT THE FORMULA FAILS TO
DEFINE THE "AVERAGE EARNINGS" REFERRED TO IN THE LAST SENTENCE OF
FOOTNOTE 185 OF THE BOARD'S OPINION.    MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN IN THIS DISSENT. 
..END :





















U.S. V. CAPITAL TRANSIT CO., 325 U.S. 357 


NO. 663.  ARGUED APRIL 30, 1945.  - DECIDED MAY 28, 1945.  - 56 F.SUPP. 
670, REVERSED. 


1.  THE INTERSTATE COMMERCE COMMISSION'S FINDING, SUPPORTED BY
EVIDENCE, THAT APPLICATION OF THE MOTOR CARRIER ACT TO THE
TRANSPORTATION OF PASSENGERS BETWEEN THE DISTRICT OF COLUMBIA AND
GOVERNMENT INSTALLATIONS IN NEARBY VIRGINIA WAS NECESSARY TO CARRY OUT
THE NATIONAL TRANSPORTATION POLICY, WHEREFORE THE TRANSPORTATION WAS
WITHIN AN EXCEPTION TO THE COMMERCIAL-ZONE EXEMPTION PRESCRIBED BY SEC.
203(B)(8), JUSTIFIED THE EXERCISE OF JURISDICTION OVER SUCH
TRANSPORTATION, INCLUDING THE RATES THEREOF, BY THE COMMISSION.  P.
360. 

2.  THE INTERSTATE COMMERCE COMMISSION'S FINDINGS, SUPPORTED BY
EVIDENCE, JUSTIFY ITS ORDER, UNDER THE MOTOR CARRIER ACT, PRESCRIBING
FARES FOR INTERSTATE TRANSPORTATION BY A COMPANY WHICH OPERATES
STREETCARS AND BUSES AS AN INTEGRATED UNIT IN SUCH INTERSTATE SERVICE,
AND PRESCRIBING JOINT FARES FOR INTERSTATE TRANSPORTATION FURNISHED BY
SUCH COMPANY AND PARTICIPATING BUS LINES.  P. 362. 

3.  THOUGH SOME PASSENGERS PAID A COMBINATION OF TWO RATES, ONE FOR
TRAVEL WHOLLY WITHIN THE DISTRICT, THE OTHER FOR TRAVEL BETWEEN THE
DISTRICT AND VIRGINIA, AND THE JOURNEY FROM THEIR RESIDENCES TO
VIRGINIA AND RETURN WAS MADE IN TWO SEGMENTS, THE TOTAL INTERSTATE TRIP
WAS NEVERTHELESS ON A "THROUGH ROUTE."  P. 363. 

UNITED STATES ET AL. V. CAPITAL TRANSIT CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES WHICH SET
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A FEDERAL DISTRICT COURT OF THREE JUDGES, ONE JUDGE DISSENTING, SET
ASIDE AND PERMANENTLY ENJOINED ENFORCEMENT OF AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION, 258 I.C.C. 559, ON THE GROUND THAT THE
FINDINGS WERE INADEQUATE AND THAT THE COMMISSION ACTED BEYOND ITS
JURISDICTION.  56 F.SUPP.  670.  FN1  THE CASE IS HERE ON DIRECT
APPEAL.  28 U.S.C. SEC. 345. 

AT THE REQUEST OF THE SECRETARIES OF WAR AND THE NAVY, THE INTERSTATE
COMMERCE COMMISSION INSTITUTED AN INVESTIGATION INTO THE REASONABLENESS
OF THE FARES OF FOUR CARRIERS, TRANSPORTING PASSENGERS BY BUS BETWEEN
POINTS IN THE DISTRICT OF COLUMBIA AND NEARBY POINTS IN THE STATE OF
VIRGINIA, WHERE ARE LOCATED CERTAIN MILITARY AND NAVAL OFFICES AND
INSTALLMENTS EMPLOYING MORE THAN 40,000 GOVERNMENT WORKERS.  MORE THAN
HALF THESE WORKERS LIVE IN THE DISTRICT SO THAT THE NUMBER OF
INDIVIDUAL PASSENGER TRIPS TO AND FROM GOVERNMENT WORK ON THE FOUR
MOTOR LINES IS IN EXCESS OF 31,000 PER DAY.  THE FARES OF THE DIFFERENT
LINES WERE NOT IDENTICAL FOR PERFORMANCE OF SUBSTANTIALLY THE SAME
INTERSTATE TRANSPORTATION, AND DISSATISFACTION OF ARMY AND NAVY
EMPLOYEES AND OFFICIALS HAD ARISEN ON THE GROUND THAT THE CHARGES OF
ALL THE COMPANIES WERE EXCESSIVE.  THE COMMISSION, AFTER A HEARING,
FOUND SOME EXISTING FARES TO BE REASONABLE AND OTHERS UNREASONABLE. 
ITS ORDER REQUIRED SOME OF THE RATES TO BE REDUCED BUT PERMITTED OTHERS
TO BE INCREASED. 

A COMPLICATING FACTOR AROSE FROM THE DISTINCTIVE TYPE OF BUSINESS
CARRIED ON BY CAPITAL TRANSIT, ONE OF THE FOUR COMPANIES TRANSPORTING
PASSENGERS TO AND FROM THE VIRGINIA GOVERNMENT AGENCIES.  IN ADDITION
TO ITS DISTRICT-VIRGINIA BUS SERVICE, IT OPERATED AN URBAN AND SUBURBAN
TRANSPORTATION SYSTEM, CARRYING PASSENGERS BOTH BY BUS AND STREETCAR. 
SINCE DISTRICT TERMINALS OF ALL THE BUS COMPANIES WERE LOCATED IN OR
ADJACENT TO THE CENTRAL BUSINESS SECTIONS, MOST GOVERNMENT EMPLOYEES,
IN GOING TO AND RETURNING FROM THEIR WORK, WERE COMPELLED TO BEGIN OR
COMPLETE THEIR TRIPS BY UTILIZING BUSES OR STREETCARS OF CAPITAL
TRANSIT.  IT ACCORDED TO ITS OWN BUS AND STREETCAR PASSENGERS, BUT
DENIED TO PASSENGERS ON OTHER VIRGINIA BUSES, A PRIVILEGE OF TRANSFERS
TO AND FROM SOME OF ITS VIRGINIA BUSES WHICH LOWERED THE TOTAL FARES
BETWEEN DISTRICT RESIDENCES AND THEIR VIRGINIA PLACES OF WORK.  THE
COMMISSION TREATED TRANSIT COMPANY'S LOCAL BUS AND STREETCAR BUSINESS
AS AN INTEGRATED UNIT, AND ITS FINDINGS, SUPPORTED BY EVIDENCE, SHOW
THAT ITS INTRA-COMPANY TRANSFER PRACTICES WERE THE EQUIVALENT OF
ESTABLISHMENT BY TRANSIT OF THROUGH INTERSTATE ROUTES WITH JOINT RATES
TO AND FROM DISTRICT RESIDENCES TO THE VIRGINIA POINTS.  ACCORDINGLY IT
ORDERED THAT ANALOGOUS JOINT ARRANGEMENTS AS TO FARES, INCLUDING
TRANSFER PRIVILEGES, BE ESTABLISHED BETWEEN TRANSIT AND THE OTHER BUS
LINES CARRYING PASSENGERS TO AND FROM VIRGINIA GOVERNMENT AGENCIES. 
THIS, AND OTHER ELEMENTS OF THE COMMISSION ORDER NOT PASSED ON BY THE
DISTRICT COURT, WERE SEPARATELY ATTACKED HERE.  IN ORDER THAT FINAL
DISPOSITION OF THE CASE MAY NOT BE FURTHER DELAYED, WE SHALL CONSIDER
ALL QUESTIONS ARGUED BEFORE US. 

FIRST.  IT IS ARGUED THAT THE COMMISSION IS WITHOUT JURISDICTION TO
REGULATE ANY OF THE DISTRICT-VIRGINIA TRANSPORTATION HERE INVOLVED. 
THE ARGUMENT EMPHASIZES THAT THE MOVEMENT BEGINS AND ENDS IN A SINGLE
"COMMUNITY," ALL WITHIN AN AREA WHICH THE COMMISSION HAS PREVIOUSLY
RECOGNIZED AS THE "COMMERCIAL ZONE" OF WASHINGTON.  3 M.C.C. 243.  WE
ARE REFERRED HERE TO THE HOLDING OF THIS COURT IN 1912 THAT A STREET
RAILWAY, CARRYING PASSENGERS BETWEEN OMAHA, NEBRASKA AND COUNCIL
BLUFFS, IOWA, WAS "LOCAL," SERVING THE USE OF A "SINGLE COMMUNITY," AND
WAS NOT THE KIND OF "RAILROAD" WHICH THE INTERSTATE COMMERCE ACT
EMPOWERED THE COMMISSION TO REGULATE.  OMAHA STREET R. CO. V.
INTERSTATE COMMERCE COMM'N, 230 U.S. 324.  CF. UNITED STATES V. VILLAGE
OF HUBBARD, 266 U.S. 474, 479-480.  THE SAME PRINCIPLE, WE ARE TOLD,
SHOULD EXCLUDE SIMILAR LOCAL BUS OPERATIONS.  BUT THIS COURT'S DECISION
IN THE OMAHA CASE DID NOT HOLD THAT CONGRESS COULD NOT AUTHORIZE THE
COMMISSION TO REGULATE MOVEMENTS THAT TOOK PLACE ACROSS STATE LINES IN
A SINGLE LOCAL COMMUNITY.  THE POWER OF CONGRESS OVER SUCH MOVEMENTS
CANNOT BE DOUBTED.  THE OMAHA CASE ONLY DECIDED THAT CONGRESS HAD NOT
GRANTED SUCH POWER TO THE COMMISSION UNDER THE LAW AS IT THEN EXISTED. 

WE MUST NOW TEST THE COMMISSION'S POWER IN THIS CASE BY THE
PROVISIONS OF A STATUTE ENACTED SUBSEQUENT TO THE OMAHA CASE, SUPRA,
THE MOTOR CARRIER ACT, 49 STAT. 543, UNDER WHICH THE ORDER HERE WAS
ENTERED.  SECTION 203(B) OF THAT ACT PROVIDES THE CONTROLLING RULE.  IT
SPECIFICALLY DEFINES THE CIRCUMSTANCES UNDER WHICH THE COMMISSION CAN
REGULATE INTERSTATE ACTIVITIES WHICH HAPPEN TO TAKE PLACE IN A SINGLE
"COMMERCIAL ZONE." 

THAT SECTION, TO A LIMITED EXTENT, EXCLUDES FROM THE COMMISSION'S
JURISDICTION "THE TRANSPORTATION OF PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE WHOLLY WITHIN A MUNICIPALITY OR BETWEEN
CONTIGUOUS MUNICIPALITIES OR WITHIN A ZONE ADJACENT TO AND COMMERCIALLY
A PART OF ANY SUCH MUNICIPALITY OR MUNICIPALITIES  ..."  OTHER PARTS OF
THE SAME SECTION AUTHORIZE THE COMMISSION TO APPLY THE ACT TO THESE
ZONE ACTIVITIES, HOWEVER, IF IT FINDS THAT (1) "SUCH APPLICATION IS
NECESSARY" TO CARRY OUT THE NATIONAL TRANSPORTATION POLICY DECLARED IN
THE ACT, OR (2) IF THE CARRIER IS NOT "ENGAGED IN  ...  INTRANSTATE
TRANSPORTATION OF PASSENGERS OVER THE ENTIRE LENGTH OF SUCH INTERSTATE
ROUTE."  THE COMMISSION HELD THAT THE FOUR BUS COMPANIES CAME WITHIN
BOTH THESE EXCEPTIONS AND THEREFORE WERE NOT EXCLUDED FROM ITS
JURISDICTION.  WE NEED NOT CONSIDER WHETHER THEY CAME WITHIN THE SECOND
EXCEPTION, BECAUSE OF OUR CONCLUSION THAT THE COMMISSION'S FINDINGS
JUSTIFIED ITS ORDER UNDER THE FIRST EXCEPTION.  THOSE FINDINGS WERE
THAT IT WAS NECESSARY FOR THE COMMISSION TO EXERCISE ITS JURISDICTION
IN ORDER TO CARRY OUT THE ACT'S DECLARED POLICY, "TO ENCOURAGE THE
ESTABLISHMENT AND MAINTENANCE OF REASONABLE CHARGES FOR TRANSPORTATION
SERVICES, WITHOUT UNJUST DISCRIMINATIONS,  ...  TO THE END OF
DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION
SYSTEM  ...  ADEQUATE TO MEET THE NEEDS OF THE COMMERCE OF THE UNITED
STATES, OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE."  54 STAT.
899. 

ON ITS SECOND HEARING THE COMMISSION HEARD EVIDENCE FROM EMPLOYEES OF
THE ARMY AND NAVY AS TO DISSATISFACTION WITH THE FARES.  THE
SECRETARIES OF BOTH WAR AND NAVY MADE COMPLAINTS CONCERNING THE
SITUATION PRODUCED BY THE RATE STRUCTURE.  A NUMBER OF WITNESSES
TESTIFIED AS TO THE DISSATISFACTION OF EMPLOYEES WITH THE PREVAILING
RATES.  IF EVIDENCE WAS NECESSARY TO PROVE THAT UNREASONABLY HIGH RATES
WERE CALCULATED TO DISTURB THE MORALE OF WORKERS FORCED TO PAY THEM,
AND THUS TO IMPAIR THE NATIONAL DEFENSE PROGRAM, THERE CAN BE NO DOUBT
BUT THAT THE FINDINGS OF THE COMMISSION WERE WELL SUPPORTED.  IT IS TO
BE REMEMBERED THAT THESE WERE INTERSTATE RATES FOR INTERSTATE TRAVEL
WHICH APPLIED ALMOST EXCLUSIVELY TO WORKERS ENGAGED IN NATIONAL
DEFENSE.  NEITHER THE DISTRICT NOR VIRGINIA HAD POWER ADEQUATELY TO
REGULATE THE RATES; NOR HAD THEY ATTEMPTED TO DO SO.  THEIR REGULATION
WAS RIGHTFULLY A MATTER OF CONCERN TO ARMY AND NAVY DEPARTMENTS CHARGED
WITH THE SERIOUS RESPONSIBILITY OF CONDUCTING A WAR.  THE EMPLOYEES
WORKED IN THE VERY CENTER OF ACTIVITIES ESSENTIAL IN THAT CAUSE. 
CONGRESS UNEQUIVOCALLY RESERVED TO THE COMMISSION POWER TO REGULATE
REASONABLENESS OF INTERSTATE RATES IN THE LIGHT OF THE NEEDS OF
NATIONAL DEFENSE.  THE FINDINGS OF THE COMMISSION ON THIS ISSUE WERE
CLEAR AND COMPLETE, CF. YONKERS V. UNITED STATES, 320 U.S. 685, AND
JUSTIFIED THE COMMISSION IN EXERCISING ITS JURISDICTION. 

SECOND.  IT IS ARGUED THAT THE COMMISSION EXCEEDED ITS AUTHORITY IN
PRESCRIBING JOINT FARES BETWEEN THE CAPITAL TRANSIT COMPANY AND THE
OTHER BUS COMPANIES.  THIS CONTENTION RESTS ON TWO ASSUMPTIONS GROUNDED
UPON THE DIFFERENCE IN THE WAY THE PARTIES VIEW THE FACTS AND THE LAW
GOVERNING THEM.  THE FIRST ARGUMENT OF THE COMPANIES IS SUBSTANTIALLY
THE SAME AS THE ONE JUST REJECTED - THAT ALL OF THE TRANSIT COMPANY'S
OPERATIONS, BY BOTH BUS AND STREETCAR, ARE PURELY LOCAL AND THEREFORE
NOT SUBJECT TO THE COMMISSION'S JURISDICTION.  THE SECOND CONTENTION IS
THIS: SECTIONS 216(C) AND (E) PERMIT BUT DO NOT REQUIRE MOTOR CARRIERS
TO ESTABLISH THROUGH ROUTES AND JOINT RATES WITH OTHER TYPES OF
CARRIERS; SINCE THE COMPANIES VIEW THE FACTS AS FAILING TO SHOW THAT
THROUGH ROUTES OR JOINT RATES HAVE VOLUNTARILY BEEN ESTABLISHED AS TO
TRANSIT'S STREETCARS AND THE VIRGINIA BUSES, THEY ARGUE THAT THE
COMMISSION CANNOT REQUIRE THEIR ESTABLISHMENT.  THE COMMISSION FOUND,
HOWEVER, THAT TRANSIT HAD VOLUNTARILY ESTABLISHED THROUGH ROUTES, AND
CONTENDS ITS FINDING HAS SUPPORT IN THE EVIDENCE AND CONSEQUENTLY
SUSTAINS ITS ORDER.  IT ALSO RELIES ON ITS POWER UNDER SEC. 216(E) TO
PRESCRIBE THROUGH RATES FOR ALL SEGMENTS OF AN INTERSTATE
TRANSPORTATION CARRIED ON BETWEEN MOTOR CARRIERS.  THIS POWER IT ARGUES
IS BROAD ENOUGH TO AUTHORIZE AN ORDER FOR JOINT RATES FOR INTERSTATE
CARRIAGE CONDUCTED BY A COMPANY WHICH, AS IT FOUND THIS ONE DID, USES
STREETCARS AND BUSES AS AN INTEGRATED UNIT IN CARRYING OUT INTERSTATE
TRANSPORTATION.  WE THINK THAT, UNDER THE FACTS AND CIRCUMSTANCES
SHOWN, THE COMMISSION'S FINDINGS ARE NOT SUBJECT TO ATTACK AND THAT IT
ACTED WITHIN ITS STATUTORY AUTHORITY IN PRESCRIBING THE THROUGH RATES. 

AS PREVIOUSLY POINTED OUT, TWICE A DAY MORE THAN 15,000 GOVERNMENT
EMPLOYEES TRAVELED BETWEEN THE VIRGINIA AGENCIES AND THEIR HOMES VIA
ONE OF THE FOUR BUS SYSTEMS.  MOST OF THEM EITHER WENT TO OR FROM THESE
BUS TERMINALS FROM OR TO THEIR HOMES OVER ANY OF TRANSIT'S THEN
AVAILABLE BUSES OR STREETCARS.  THEIR TRAVEL WAS AT CERTAIN HOURS EACH
DAY, AT WHICH SPECIAL RUSH HOUR BUSES AND CARS WERE MADE AVAILABLE FOR
THEIR CARRIAGE.  THEIR INTERSTATE JOURNEY TO WORK ACTUALLY BEGAN AT THE
TIME THEY BOARDED A TRANSIT BUS OR STREETCAR NEAR THEIR HOME, AND
ACTUALLY ENDED WHEN THEY ALIGHTED FROM THE VIRGINIA-GOING BUS AT THEIR
PLACE OF WORK.  ON RETURNING FROM WORK THEIR INTERSTATE JOURNEY
ACTUALLY BEGAN WHEN THEY BOARDED A BUS NEAR THEIR WORK AND ACTUALLY
ENDED WHEN THEY ALIGHTED FROM A TRANSIT STREETCAR OR BUS NEAR THEIR
HOME.  TRUE, THEIR INTERSTATE TRIP WAS BROKEN AT THE DISTRICT TERMINI
OF THE VIRGINIA BUSES, WHEN THEY STEPPED FROM ONE VEHICLE TO ANOTHER. 
BUT IN THE COMMONLY ACCEPTED SENSE OF THE TRANSPORTATION CONCEPT, THEIR
ENTIRE TRIP WAS INTERSTATE.  BALTIMORE & OHIO S.W.R. CO. V. SETTLE, 260
U.S. 166.  AND THE FACT THAT, EXCEPT AS TO TRANSIT, THEY PAID A
COMBINATION OF TWO RATES, ONE FOR TRAVEL WHOLLY WITHIN THE DISTRICT,
AND THE OTHER FOR TRAVEL BETWEEN THE DISTRICT AND VIRGINIA, AND THE
JOURNEY FROM THEIR RESIDENCES TO VIRGINIA AND BACK AGAIN WAS TAKEN IN
TWO SEGMENTS, DOES NOT MEAN THAT THE TOTAL INTERSTATE TRIP WAS NOT ON A
"THROUGH ROUTE."  VIRGINIAN R. CO. V. UNITED STATES, 272 U.S. 658, 666
667; ST. LOUIS S.W.R. CO. V. UNITED STATES, 245 U.S. 136, 139-140. 

MOREOVER, TRANSIT COMPANY ITSELF CONDUCTED ITS OWN TRAFFIC TO AND
FROM VIRGINIA AND DISTRICT RESIDENTIAL POINTS AS ONE CONTINUOUS
JOURNEY.  AS PREVIOUSLY NOTED, A VIRGINIA WORKER COULD BOARD ITS LOCAL
BUS OR STREETCAR, RIDE TO A DISTRICT TERMINAL OF TRANSIT'S VIRGINIA
BOUND BUS, BOARD IT, AND OBTAIN THE BENEFIT OF A TRANSFER SUPPLIED BY
TRANSIT.  SO ALSO COULD TRANSIT'S PASSENGER GET THE BENEFIT OF A
TRANSFER ON THE RETURN JOURNEY HOME FROM WORK.  HAD TRANSIT NOT OWNED
THE SEPARATE VEHICLES USED IN THE TRANSPORTATION, THESE ARRANGEMENTS
WOULD HAVE CONSTITUTED "JOINT RATES" FOR A "THROUGH ROUTE" WITHIN THE
STATUTORY MEANING OF THE TERM.  AS CARRIED OUT BY TRANSIT THE
ARRANGEMENTS WERE THE EXACT EQUIVALENT OF TRANSPORTATION ON A "THROUGH
ROUTE" FOR A JOINT FARE.  HAD TRANSIT NOT OWNED THE VEHICLES
TRANSPORTING THE PASSENGERS ON EACH LEG OF THIS INTERSTATE JOURNEY, IT
COULD NOT HAVE ESTABLISHED, CONSISTENTLY WITHIN THE INTERSTATE COMMERCE
ACT, JOINT RATES WITH A PARTICULAR VIRGINIA BUS LINE TO THE EXCLUSION
OF ITS COMPETITORS, FOR THE REASON THAT ONE GIVEN A MONOPOLY OF THROUGH
TRAFFIC COULD "SOON BE ABLE TO DRIVE ITS COMPETITORS OUT OF BUSINESS." 
UNITED STATES V. PENNSYLVANIA R. CO., 323 U.S. 612, 617.  THE MOTOR
CARRIER ACT, WHICH IS PART OF THE INTERSTATE COMMERCE ACT, NEED NOT BE
INTERPRETED SO AS TO PERMIT THE ACCOMPLISHMENT OF SUCH A RESULT. 

UNLAWFUL ANY UNREASONABLE, PREFERENTIAL, OR PREJUDICIAL RULE,
CLASSIFICATION, REGULATION OR PRACTICE ARISING FROM ANY "INDIVIDUAL OR
JOINT RATE, FARE, OR CHARGE, DEMANDED, CHARGED, OR COLLECTED BY ANY
COMMON CARRIER OR CARRIERS BY MOTOR VEHICLE OR BY ANY COMMON CARRIER OR
CARRIERS BY MOTOR VEHICLE IN CONJUNCTION WITH ANY COMMON CARRIER OR
CARRIERS BY RAILROAD  ..."  AND TO "PRESCRIBE THE LAWFUL RATE, FARE, OR
CHARGE  ...  THEREAFTER TO BE OBSERVED  ..."  WE THINK THAT UNDER THE
COMMISSION'S FINDINGS, SUPPORTED BY EVIDENCE, IT DID HAVE POWER TO
DECLARE THESE RATES UNREASONABLE AND UNLAWFUL AS IT DID, AND THEREAFTER
TO PRESCRIBE THE LAWFUL RATE TO BE CHARGED FOR THE INTERSTATE TRIP. 
THIS DID NOT, AS ARGUED, CONSTITUTE A REGULATION OF INTRASTATE
COMMERCE.    OTHER CONTENTIONS URGED BY THE CARRIERS HAVE BEEN
CONSIDERED, BUT NEED NOT BE DISCUSSED, SINCE WE ARE SATISFIED WITH THE
DISPOSITION MADE OF THEM BY THE INTERSTATE COMMERCE COMMISSION. 
FINDING NO ERROR IN THE ORDER OF THE COMMISSION, THE JUDGMENT OF THE
DISTRICT COURT DECLINING TO ENFORCE IT IS REVERSED. 

FN1  THE DISTRICT COURT HAD PREVIOUSLY SET ASIDE A COMMISSION ORDER
IN THE SAME CASE BECAUSE OF INADEQUATE FINDINGS.  55 F.SUPP.  51, 256
I.C.C. 769.  THEREAFTER THE COMMISSION HEARD ADDITIONAL EVIDENCE, MADE
ADDITIONAL FINDINGS AND ENTERED THE ORDER HERE UNDER REVIEW. 

MR. JUSTICE ROBERTS IS OF THE OPINION THAT THE COMMISSION HAD NO
JURISDICTION OF THE FARES IN QUESTION, FOR THE REASONS SET FORTH IN THE
OPINIONS BELOW, 55 F.SUPP.  51, AND 56 F.SUPP.  670.  MR. JUSTICE REED
AND MR. JUSTICE DOUGLAS DISSENT FROM PART SECOND OF THE OPINION. 
..END :












U.S. ALKALI ASSN. V. U.S., 325 U.S. 196 


ARGUED MAY 1, 2, 1945.  - DECIDED MAY 21, 1945.  - 58 F.SUPP.  785,
AFFIRMED. 


1.  AN ORDER OF A DISTRICT COURT IN A SUIT BROUGHT BY THE UNITED
STATES UNDER SEC. 4 OF THE SHERMAN ACT AGAINST EXPORT ASSOCIATIONS AND
MEMBERS THEREOF TO RESTRAIN VIOLATIONS OF THE ACT, DENYING A MOTION OF
THE DEFENDANTS TO DISMISS, MADE ON THE GROUND THAT, UNDER SECS. 1, 2
AND 5 OF THE WEBB-POMERENE ACT, EXCLUSIVE JURISDICTION OF THE MATTERS
CHARGED IN THE COMPLAINT IS VESTED IN THE FIRST INSTANCE IN THE FEDERAL
TRADE COMMISSION, HELD REVIEWABLE HERE BY CERTIORARI UNDER SEC. 262 OF
THE JUDICIAL CODE.  P. 201. 

(A)  WHERE THE PROCEEDING IS ONE IN RESPECT OF WHICH THIS COURT HAS
EXCLUSIVE APPELLATE JURISDICTION, AN APPLICATION FOR A COMMON LAW WRIT
IN AID OF APPELLATE JURISDICTION MUST BE TO THIS COURT.  P. 202. 

(B)  THE HARDSHIP WHICH WOULD BE IMPOSED ON THE DEFENDANTS BY A LONG
POSTPONED APPELLATE REVIEW, COUPLED WITH THE ATTENDANT INFRINGEMENT OF
THE ASSERTED CONGRESSIONAL POLICY OF CONFERRING PRIMARY JURISDICTION ON
THE COMMISSION, TOGETHER SUPPORT THE APPEAL TO THE DISCRETION OF THIS
COURT TO EXERCISE ITS POWER TO REVIEW THE RULING OF THE DISTRICT COURT
IN ADVANCE OF FINAL JUDGMENT.  P. 204. 

2.  EXERCISE OF THE POWERS CONFERRED ON THE FEDERAL TRADE COMMISSION
BY SEC. 5 OF THE WEBB-POMERENE ACT - TO INVESTIGATE ACTIVITIES OF ANY
EXPORT ASSOCIATION WHICH ARE BELIEVED TO BE IN VIOLATION OF THE SHERMAN
ACT; IF VIOLATIONS ARE FOUND, TO MAKE RECOMMENDATIONS TO SUCH
ASSOCIATION FOR READJUSTMENT OF ITS BUSINESS; AND UPON FAILURE OF THE
ASSOCIATION TO COMPLY, TO REFER ITS FINDINGS AND RECOMMENDATIONS TO THE
ATTORNEY GENERAL - IS NOT A PREREQUISITE TO A SUIT BY THE UNITED STATES
AGAINST AN EXPORT ASSOCIATION TO RESTRAIN VIOLATIONS OF THE SHERMAN
ACT.  P. 205. 

(A)  THE WEBB-POMERENE ACT'S GRANT OF POWER TO THE COMMISSION WOULD
CURTAIL THE AUTHORITY OF THE UNITED STATES TO CONDUCT ANTITRUST SUITS
ONLY IF IT WERE DEEMED AN IMPLIED REPEAL PRO TANTO OF SEC. 4 OF THE
SHERMAN ACT.  REPEALS BY IMPLICATION ARE NOT FAVORED.  P. 209. 

(B)  THE PRINCIPLE THAT EQUITY WILL NOT LEND ITS AID TO A PLAINTIFF
WHO HAS NOT FIRST EXHAUSTED HIS ADMINISTRATIVE REMEDIES IS
INAPPLICABLE, SINCE THE FUNCTION OF THE COMMISSION UNDER SEC. 5 OF THE
WEBB-POMERENE ACT IS TO INVESTIGATE, RECOMMEND AND REPORT.  THE
COMMISSION, UNDER THAT ACT, CAN GIVE NO REMEDY; IT CAN MAKE NO
CONTROLLING FINDING OF LAW OR FACT; AND ITS RECOMMENDATION NEED NOT BE
FOLLOWED BY ANY COURT OR ADMINISTRATIVE OR EXECUTIVE OFFICER.  P. 210. 

UNITED STATES ALKALI EXPORT ASSOCIATION, INC. ET AL. V. UNITED
STATES. 

NO. 1016.  CERTIORARI TO THE DISTRICT COURT OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK* . 

*TOGETHER WITH NO. 1017, CALIFORNIA ALKALI EXPORT ASSOCIATION ET AL.
V. UNITED STATES, ALSO ON CERTIORARI TO THE DISTRICT COURT OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. 

CERTIORARI, 324 U.S. 834, TO REVIEW AN ORDER OF A DISTRICT COURT
DENYING A MOTION OF THE DEFENDANTS TO DISMISS A SUIT BROUGHT BY THE
UNITED STATES TO RESTRAIN VIOLATIONS OF THE SHERMAN ACT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT IN THE DISTRICT COURT FOR SOUTHERN NEW YORK, BROUGHT
BY THE UNITED STATES UNDER SEC. 4 OF THE SHERMAN ANTITRUST ACT, 15
U.S.C. SEC. 4, TO RESTRAIN VIOLATIONS OF THE ACT.  THE DEFENDANTS, WHO
ARE PETITIONERS HERE, ARE TWO INCORPORATED EXPORT ASSOCIATIONS,
THIRTEEN DOMESTIC MEMBERS OF ONE OR THE OTHER, AND A BRITISH
CORPORATION AND ITS AMERICAN SUBSIDIARY, ALL OF WHICH ARE PRODUCERS OF
ALKALIES.  THE BILL OF COMPLAINT ALLEGES THAT PETITIONERS ARE ENGAGED
IN A CONSPIRACY TO ELIMINATE EXPORTS OF ALKALIES TO THE UNITED STATES
BY THE FOREIGN MEMBERS OF THE CONSPIRACY; TO RESTRICT OR ELIMINATE
EXPORTS OF ALKALIES BY DOMESTIC PRODUCERS FROM THE UNITED STATES TO
MANY WORLD MARKETS; TO PREVENT INDEPENDENT DOMESTIC PRODUCERS FROM
COMPETING WITH PETITIONERS, IN THE EXPORT OF ALKALIES; TO RESTRICT
THEIR PRODUCTION OF ALKALIES IN THE UNITED STATES; AND TO FIX PRICES OF
CAUSTIC SODA IN THE UNITED STATES, ALL IN VIOLATION OF SEC. 1 OF THE
SHERMAN ACT, 15 U.S.C. SEC. 1. 

THE DISTRICT COURT DENIED, 58 F.SUPP.  785, PETITIONERS' MOTION TO
DISMISS THE COMPLAINT, MADE ON THE GROUND THAT EXCLUSIVE JURISDICTION
OF THE MATTERS CHARGED IN THE COMPLAINT IS VESTED IN THE FIRST INSTANCE
IN THE FEDERAL TRADE COMMISSION, UNDER SECS. 1, 2, AND 5 OF THE WEBB
POMERENE ACT OF APRIL 10, 1918, C. 50, 40 STAT. 516, 15 U.S.C. SECS.
61, 62, 65.  PETITIONERS THEN FILED HERE PETITIONS FOR CERTIORARI UNDER
SEC. 262 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 377, SEEKING REVIEW OF
THE ORDER OF THE DISTRICT COURT DENYING THE MOTION TO DISMISS. 

THE QUESTIONS FOR DECISION ARE (1) WHETHER THE ORDER OF THE DISTRICT
COURT, DENYING PETITIONERS' MOTION TO DISMISS THE COMPLAINT, MAY
APPROPRIATELY BE REVIEWED HERE BY WRIT OF CERTIORARI ISSUED UNDER SEC.
262 OF THE JUDICIAL CODE AND, IF SO, (2) WHETHER SECS. 1, 2, AND 5 OF
THE WEBB-POMERENE ACT CONFER PRIMARY JURISDICTION ON THE FEDERAL TRADE
COMMISSION, EXCLUSIVE OF THAT OF THE DISTRICT COURT, TO PASS UPON
ALLEGED VIOLATIONS OF THE SHERMAN ACT BY EXPORT ASSOCIATIONS. 

JURISDICTION TO RESTRAIN VIOLATIONS OF THE ACT; AND IT IMPOSES ON
DISTRICT ATTORNEYS OF THE UNITED STATES, UNDER THE DIRECTION OF THE
ATTORNEY GENERAL, THE DUTY TO INSTITUTE SUITS IN EQUITY IN THEIR
RESPECTIVE DISTRICTS, TO RESTRAIN SUCH VIOLATIONS.  BUT SEC. 2 OF THE
WEBB-POMERENE ACT EXEMPTS FROM THE PROHIBITIONS OF THE SHERMAN ACT,
ASSOCIATIONS "ENTERED INTO FOR THE SOLE PURPOSE OF ENGAGING IN EXPORT
TRADE AND ACTUALLY ENGAGED SOLELY IN SUCH EXPORT TRADE" AND ALSO ANY
"AGREEMENT MADE OR ACT DONE IN THE COURSE OF EXPORT TRADE BY SUCH
ASSOCIATION, PROVIDED SUCH ASSOCIATION, AGREEMENT, OR ACT IS NOT IN
RESTRAINT OF TRADE WITHIN THE UNITED STATES, AND IS NOT IN RESTRAINT OF
THE EXPORT TRADE OF ANY DOMESTIC COMPETITORS OF SUCH ASSOCIATION."  TO
THIS IS ADDED A SECOND PROVISO "THAT SUCH ASSOCIATION DOES NOT, EITHER
IN THE UNITED STATES OR ELSEWHERE, ENTER INTO ANY AGREEMENT,
UNDERSTANDING, OR CONSPIRACY, OR DO ANY ACT WHICH ARTIFICIALLY OR
INTENTIONALLY ENHANCES OR DEPRESSES PRICES WITHIN THE UNITED STATES OF
COMMODITIES OF THE CLASS EXPORTED BY SUCH ASSOCIATION, OR WHICH
SUBSTANTIALLY LESSENS COMPETITION WITHIN THE UNITED STATES OR OTHERWISE
RESTRAINS TRADE THEREIN." 

THE FIRST PARAGRAPH OF SEC. 5 OF THE WEBB-POMERENE ACT REQUIRES EACH
ASSOCIATION ENGAGED SOLELY IN EXPORT TRADE TO FILE WITH THE FEDERAL
TRADE COMMISSION A STATEMENT GIVING INFORMATION CONCERNING ITS OFFICERS
AND STOCKHOLDERS OR MEMBERS, AND ITS PLACE OF BUSINESS, AND A COPY OF
ITS ARTICLES OF INCORPORATION OR ITS CONTRACT OF ASSOCIATION; THE
ASSOCIATION IS REQUIRED TO REFILE ANNUALLY SUCH STATEMENTS WITH
SUITABLE CORRECTIONS, AND TO FURNISH SUCH FURTHER SPECIFIED INFORMATION
AS THE COMMISSION MAY FROM TIME TO TIME REQUEST.  SECTION 5 FURTHER
PROVIDES IN ITS SECOND PARAGRAPH THAT WHENEVER THE COMMISSION SHALL
HAVE REASON TO BELIEVE THAT AN EXPORT ASSOCIATION IS VIOLATING THE
SHERMAN ACT IN THE WAYS EXCEPTED BY THE PROVISOS OF SEC. 2 FROM ITS
EXEMPTIONS, THE COMMISSION SHALL CONDUCT AN INVESTIGATION INTO THE
ALLEGED VIOLATIONS.  IF "IT SHALL CONCLUDE THAT THE LAW HAS BEEN
VIOLATED, IT MAY MAKE TO SUCH ASSOCIATION RECOMMENDATIONS FOR THE
READJUSTMENT OF ITS BUSINESS, IN ORDER THAT IT MAY THEREAFTER MAINTAIN
ITS ORGANIZATION AND MANAGEMENT AND CONDUCT ITS BUSINESS IN ACCORDANCE
WITH LAW."  IF THE ASSOCIATION FAILS TO COMPLY WITH THE RECOMMENDATIONS
OF THE COMMISSION, IT "SHALL REFER ITS FINDINGS AND RECOMMENDATIONS TO
THE ATTORNEY GENERAL OF THE UNITED STATES FOR SUCH ACTION THEREON AS HE
MAY DEEM PROPER."  FN1 

PETITIONERS DO NOT QUESTION THE DISTRICT COURT'S RULINGS, IN DENYING
THEIR MOTION, THAT THE COMPLAINT ALLEGES VIOLATIONS OF THE SHERMAN ACT,
AND THAT UNDER ITS ALLEGATIONS PETITIONERS ARE NOT WITHIN ANY IMMUNITY
FROM THE SHERMAN ACT SECURED BY SEC. 2 OF THE WEBB-POMERENE ACT.  THEIR
SOLE CONTENTION ON THE MERITS IS THAT SEC. 5 OF THE LATTER ACT, BY
AUTHORIZING THE PROCEEDINGS BEFORE THE FEDERAL TRADE COMMISSION,
DEPRIVES THE DISTRICT COURTS OF JURISDICTION IN SHERMAN ACT CASES UNTIL
THE COMMISSION HAS MADE ITS INVESTIGATION AND RECOMMENDATIONS, THE
ASSOCIATIONS HAVE FAILED TO COMPLY WITH THEM, AND THE COMMISSION HAS
REFERRED ITS FINDINGS AND RECOMMENDATIONS TO THE ATTORNEY GENERAL. 

                                  I 

PETITIONERS ARGUE THAT THIS COURT MAY APPROPRIATELY REVIEW THE ORDER
OF THE DISTRICT COURT BY WRIT OF CERTIORARI, ISSUED UNDER SEC. 262 OF
THE JUDICIAL CODE.  THEY POINT OUT THAT SEC. 2 OF THE EXPEDITING ACT OF
FEBRUARY 11, 1903, AS AMENDED, 15 U.S.C. SEC. 29, GOVERNING APPEALS IN
SHERMAN ACT CASES, MAKES NO PROVISION FOR APPEALS FROM INTERLOCUTORY
ORDERS OR JUDGMENTS, AND PROVIDES THAT "AN APPEAL FROM THE FINAL DECREE
OF THE DISTRICT COURT WILL LIE ONLY TO THE SUPREME COURT."  SEE UNITED
STATES V. CALIFORNIA CANNERIES, 279 U.S. 553.  BUT IT IS URGED THAT THE
DISTRICT COURT IS DEPRIVED OF ITS JURISDICTION BY SEC. 5 OF THE WEBB
POMERENE ACT, UNTIL THE TRADE COMMISSION HAS MADE THE INVESTIGATION AND
FOLLOWED THE FURTHER PROCEDURE OUTLINED BY SEC. 5; THAT THE ASSERTION
BY THE DISTRICT COURT OF ITS JURISDICTION, WITHOUT AWAITING AN
INVESTIGATION BY THE COMMISSION, WILL ENTAIL PROTRACTED LITIGATION AND
IMPOSE ON THE PARTIES GREAT EXPENSE BEFORE THE ERROR CAN BE CORRECTED
ON APPEAL FROM THE FINAL JUDGMENT TO THIS COURT.  ALL THIS WILL BE
AVOIDED, IT IS SAID, BY AWAITING ACTION BY THE COMMISSION.  HENCE
PETITIONERS INSIST THAT THE CASE IS APPROPRIATE FOR THE EXERCISE BY
THIS COURT OF ITS EXTRAORDINARY POWER TO REVIEW THE ORDER OF THE
DISTRICT COURT BY WRIT OF CERTIORARI. 

CIRCUIT COURTS OF APPEALS AND THE DISTRICT COURTS, "SHALL HAVE POWER TO
ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED FOR BY STATUTE, WHICH MAY BE
NECESSARY FOR THE EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND
AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW."  UNDER SEC. 262, THIS
COURT HAS POWER, IN AID OF ITS APPELLATE JURISDICTION, TO REVIEW
JUDGMENTS AND ORDERS OF THE DISTRICT COURTS BY RESORT TO THE COMMON LAW
WRITS OF CERTIORARI, MANDAMUS AND PROHIBITION.  WHITNEY V. DICK, 202
U.S. 132; MCCLELLAN V. CARLAND, 217 U.S. 268, AND CASES CITED; IN RE
620 CHURCH STREET CORP., 299 U.S. 24, 26, AND CASES CITED; EX PARTE
PERU, 318 U.S. 578, AND CASES CITED; HOUSE V. MAYO, 324 U.S. 42, AND
CASES CITED; COMPARE ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21. 
THESE WRITS ARE GRANTED OR WITHHELD IN THE SOUND DISCRETION OF THE
COURT.  SEE ROCHE V. EVAPORATED MILK ASSN., SUPRA, 25, AND CASES
CITED.  IN THE USUAL CASE THIS COURT WILL DECLINE TO ISSUE A WRIT PRIOR
TO REVIEW IN THE CIRCUIT COURT OF APPEALS, WHETHER BY ORDINARY APPEAL,
IN RE TAMPA SUBURBAN R. CO., 168 U.S. 583, 588, OR BY AN EXTRAORDINARY
REMEDY, SEE EX PARTE PERU, SUPRA, 584.  BUT WHERE, AS HERE, SOLE
APPELLATE JURISDICTION LIES IN THIS COURT, APPLICATION FOR A COMMON LAW
WRIT IN AID OF APPELLATE JURISDICTION MUST BE TO THIS COURT. 

THE TRADITIONAL USE OF SUCH WRITS BOTH AT COMMON LAW AND IN THE
FEDERAL COURTS HAS BEEN, IN APPROPRIATE CASES, TO CONFINE INFERIOR
COURTS TO THE EXERCISE OF THEIR PRESCRIBED JURISDICTION OR TO COMPEL
THEM TO EXERCISE THEIR AUTHORITY WHEN IT IS THEIR DUTY TO DO SO.  IN RE
CHETWOOD, 165 U.S. 443, 462(CITING TIDD'S PRAC.*  398, AND BAC.  AB.,
CERTIORARI); WHITNEY V. DICK, SUPRA, 139-140; EX PARTE PERU, SUPRA,
583, AND CASES CITED.  FN2  IT IS EVIDENT THAT HARDSHIP IS IMPOSED ON
PARTIES WHO ARE COMPELLED TO AWAIT THE CORRECTION OF AN ALLEGED ERROR
AT AN INTERLOCUTORY STAGE BY AN APPEAL FROM A FINAL JUDGMENT.  BUT SUCH
HARDSHIP DOES NOT NECESSARILY JUSTIFY RESORT TO CERTIORARI OR OTHER OF
THE EXTRAORDINARY WRITS AS A MEANS OF REVIEW.  IN SUCH CASES APPELLATE
COURTS ARE RELUCTANT TO INTERFERE WITH DECISIONS OF LOWER COURTS, EVEN
ON JURISDICTIONAL QUESTIONS, WHICH THEY ARE COMPETENT TO DECIDE AND
WHICH ARE REVIEWABLE IN THE REGULAR COURSE OF APPEAL.  IN RE TAMPA
SUBURBAN R. CO., SUPRA; EX PARTE HARDING, 219 U.S. 363, 369; ROCHE V.
EVAPORATED MILK ASSN., SUPRA, 30-31, AND CASES CITED; CF. STOLL V.
GOTTLIEB, 305 U.S. 165; TREINIES V. SUNSHINE MINING CO., 308 U.S. 66. 
THE WRITS MAY NOT BE USED AS A SUBSTITUTE FOR AN AUTHORIZED APPEAL; AND
WHERE, AS HERE, THE STATUTORY SCHEME PERMITS APPELLATE REVIEW OF
INTERLOCUTORY ORDERS ONLY ON APPEAL FROM THE FINAL JUDGMENT, REVIEW BY
CERTIORARI OR OTHER EXTRAORDINARY WRIT IS NOT PERMISSIBLE IN THE FACE
OF THE PLAIN INDICATION OF THE LEGISLATIVE PURPOSE TO AVOID PIECEMEAL
REVIEWS.  ROCHE V. EVAPORATED MILK ASSN., SUPRA, 30, AND CASES CITED;
AND SEE COBBLEDICK V. UNITED STATES, 309 U.S. 323. 

BUT THE PRESENT CASE IS NOT THE ORDINARY ONE OF HARDSHIP RESULTING
FROM OVERRULING A PLEA IN BAR OR DENYING A PRELIMINARY MOTION WHICH, IF
WELL FOUNDED, WOULD END THE LITIGATION ON THE MERITS - DECISIONS WHICH
CONGRESS, IN THE ABSENCE OF OTHER PROVISIONS FOR APPEAL, MUST HAVE
CONTEMPLATED WOULD, IN THE ORDINARY COURSE, BE REVIEWED ON APPEAL FROM
THE FINAL JUDGMENT.  THE QUESTIONS NOW PRESENTED INVOLVE THE PROPRIETY
OF THE EXERCISE, BY THE DISTRICT COURT, OF ITS EQUITY JURISDICTION, AND
AN ASSERTED CONFLICT BETWEEN ITS JURISDICTION AND THAT OF AN AGENCY OF
CONGRESS SAID TO BE CHARGED WITH THE DUTY OF ENFORCING THE ANTITRUST
LAWS IN THE CIRCUMSTANCES OF THE PRESENT CASE.  IF PETITIONERS' MOTION
WAS WELL FOUNDED, ITS DENIAL OPERATED TO THWART THE ASSERTED PURPOSE OF
CONGRESS TO AFFORD TO EXPORT ASSOCIATIONS, WHICH OVERSTEP THE BOUNDS OF
THE GRANTED IMMUNITY, OPPORTUNITY, WITH THE EXPERT AID OF THE TRADE
COMMISSION, TO RETRACE THEIR STEPS, WITHOUT BEING SUBJECTED TO THE
PENALTIES OF THE LAW.  EXERCISE OF ITS JURISDICTION BY THE DISTRICT
COURT WOULD PRECLUDE THE COMMISSION FROM CARRYING OUT ITS ASSERTED
FUNCTIONS OF INVESTIGATION, RECOMMENDATION AND REPORT BEFORE ANY SUIT
BY THE UNITED STATES.  THIS WOULD BE MORE THAN THE MERE DENIAL OF THE
RIGHT OF A SUITOR SUCH AS CONGRESS MUST HAVE CONTEMPLATED WOULD BE
CORRECTED BY RECOURSE TO THE PRESCRIBED APPEAL PROCEDURE.  IT WOULD BE
A FRUSTRATION OF THE FUNCTIONS WHICH CONGRESS HAS DIRECTED THE
COMMISSION TO PERFORM AND OF THE POLICY WHICH CONGRESS PRESUMABLY
SOUGHT TO EFFECTUATE BY THEIR PERFORMANCE. 

THE HARDSHIP IMPOSED ON PETITIONERS BY A LONG POSTPONED APPELLATE
REVIEW, COUPLED WITH THE ATTENDANT INFRINGEMENT OF THE ASSERTED
CONGRESSIONAL POLICY OF CONFERRING PRIMARY JURISDICTION ON THE
COMMISSION, TOGETHER SUPPORT THE APPEAL TO THE DISCRETION OF THIS COURT
TO EXERCISE ITS POWER TO REVIEW THE RULING OF THE DISTRICT COURT IN
ADVANCE OF FINAL JUDGMENT.  THE CASE IS ANALOGOUS TO THOSE IN WHICH
THIS COURT HAS, BY WRITS ISSUED UNDER SEC. 262, REVIEWED THE ACTION OF
DISTRICT COURTS, ALLEGED TO BE IN EXCESS OF THEIR AUTHORITY, BY WHICH
THEY HAVE FORECLOSED THE ADJUDICATION OF RIGHTS OR THE PROTECTION OF
INTERESTS COMMITTED TO THE JURISDICTION OF A STATE OFFICER OR TRIBUNAL,
SEE IN RE CHETWOOD, SUPRA; MCCLELLAN V. CARLAND, SUPRA; EX PARTE
METROPOLITAN WATER CO., 220 U.S. 539; EX PARTE SKINNER & EDDY CORP.,
265 U.S. 86; MARYLAND V. SOPER (NO. 1), 270 U.S. 9; EX PARTE NORTHERN
PACIFIC R. CO., 280 U.S. 142; COLORADO V. SYMES, 286 U.S. 510; OR BY
WHICH THEY HAVE DEPRIVED A PARTY OF A TRIAL BY JURY.  EX PARTE SIMONS,
247 U.S. 231; EX PARTE PETERSON, 253 U.S. 300, 305. 

FOR THESE REASONS WE THINK THE CASE IS AN APPROPRIATE ONE FOR REVIEW
OF THE DISTRICT COURT'S ORDER BY CERTIORARI, AND WE PASS TO THE
CONSIDERATION OF THE MERITS.                                        II 

PETITIONERS DO NOT DENY THAT THE ALLEGATIONS OF THE COMPLAINT ARE
SUFFICIENT TO CHARGE VIOLATIONS OF THE SHERMAN ACT NOT WITHIN THE
EXEMPTIONS CREATED BY SEC. 2 OF THE WEBB-POMERENE ACT.  THE CONTENTION
IS THAT SINCE THE ALLEGED VIOLATIONS ARE BEING COMMITTED BY AND ON
BEHALF OF EXPORT ASSOCIATIONS WHICH HAVE CONFORMED TO SEC. 5 OF THE
LATTER ACT, THE AUTHORITY OF THE UNITED STATES TO MAINTAIN THE SUIT IS
SUSPENDED UNTIL THE FEDERAL TRADE COMMISSION HAS PROCEEDED AGAINST THE
ASSOCIATIONS BY WAY OF INVESTIGATION AND, IF FOUND APPROPRIATE, BY WAY
OF RECOMMENDATIONS TO THEM AND REFERENCE OF ITS FINDINGS TO THE
ATTORNEY GENERAL, AS SPECIFIED IN SEC. 5.    IT IS CONCEDED THAT SEC. 5
CONTAINS NO EXPLICIT RESTRICTION ON THE AUTHORITY OF THE UNITED STATES
TO INSTITUTE ANTITRUST SUITS IN THE NORMAL WAY, NOR ANY EXPLICIT
REQUIREMENT THAT RESORT BE HAD TO THE COMMISSION PRIOR TO THE
INSTITUTION OF SUCH AN ANTITRUST SUIT.  PETITIONERS ARGUE THAT THIS IS
TO BE IMPLIED FROM THE STRUCTURE OF THE ACT, WHICH FIRST, BY SEC. 2,
EXEMPTS FROM THE SHERMAN ACT CERTAIN ACTIVITIES OF EXPORT ASSOCIATIONS,
WITH SPECIFIED EXCEPTIONS; AND THEN BY THE SECOND PARAGRAPH OF SEC. 5,
GIVES THE COMMISSION AUTHORITY, IN LANGUAGE SUBSTANTIALLY IDENTICAL
WITH THAT OF THE EXCEPTIONS IN SEC. 2, TO INVESTIGATE SUCH ACTIVITIES
AS CONTINUE TO BE VIOLATIONS OF THE SHERMAN ACT.  IT IS ARGUED THAT
CONGRESS, BY AUTHORIZING THE COMMISSION TO INVESTIGATE VIOLATIONS AND
IN APPROPRIATE CASES TO REPORT TO THE ATTORNEY GENERAL ANY VIOLATIONS
FOUND, HAS EXPRESSED THE PURPOSE THAT THE ACTION BY THE COMMISSION AND
THE ATTORNEY GENERAL SHOULD BE CONSECUTIVE AND NOT CONCURRENT. 

IT WOULD FOLLOW THAT HOWEVER STRONG THE EVIDENCE, AND HOWEVER CLEAR
THE VIOLATION OF THE SHERMAN ACT, THE ATTORNEY GENERAL MUST AWAIT THE
ACTION OF THE COMMISSION, WHICH MAY OR MAY NOT UNDERTAKE TO PROCEED
WITH THE CASE, AND THAT IN ANY EVENT THE ATTORNEY GENERAL AND THE
COURTS MUST ABIDE BY THE COMMISSION'S DETERMINATION THAT THERE ARE NO
VIOLATIONS TO REPORT.  DURING THE TWENTY-EIGHT YEARS BETWEEN THE
ENACTMENT OF THE SHERMAN ACT AND THE PASSAGE OF THE WEBB-POMERENE ACT,
THE PLENARY AUTHORITY AND SETTLED PRACTICE OF THE DEPARTMENT OF JUSTICE
TO INSTITUTE ANTITRUST SUITS, WITHOUT PRIOR PROCEEDINGS BY OTHER
AGENCIES, BECAME FIRMLY ESTABLISHED.  A PRO TANTO REPEAL OF THAT
AUTHORITY, BY CONFERRING UPON THE COMMISSION PRIMARY JURISDICTION TO
DETERMINE WHEN, IF AT ALL, AN ANTITRUST SUIT MAY APPROPRIATELY BE
BROUGHT, WOULD REQUIRE A CLEAR EXPRESSION OF THAT PURPOSE BY CONGRESS. 
UNITED STATES V. BORDEN CO., 308 U.S. 188, 198-199, 203-206; SEE ALSO
GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439, 456-457.  THE WEBB
POMERENE ACT, AS WE HAVE SAID, CONTAINS NO EXPLICIT INDICATION TO THAT
END.  NOR MAY SUCH AN IMPLICATION BE READILY DRAWN FROM THE LANGUAGE OF
THE STATUTES, OR THEIR LEGISLATIVE HISTORY. 

IN DETERMINING WHETHER THE WEBB-POMERENE ACT CURTAILED THE THEN
EXISTING AUTHORITY OF THE UNITED STATES TO BRING ANTITRUST SUITS, IT IS
IMPORTANT TO CONSIDER WHAT THAT ACT DID NOT DO, AS WELL AS WHAT IT
DID.  TRUE, IT EXEMPTED FROM THE ANTITRUST LAWS SOME, BUT NOT ALL, ACTS
WHICH WOULD OTHERWISE HAVE BEEN VIOLATIONS.  BUT WHILE IT EMPOWERED THE
COMMISSION TO INVESTIGATE, RECOMMEND AND REPORT, IT GAVE THE COMMISSION
NO AUTHORITY TO MAKE ANY ORDER OR IMPOSE ANY PROHIBITION OR RESTRAINT,
OR MAKE ANY BINDING ADJUDICATION WITH RESPECT TO THESE VIOLATIONS. 

THIS IS IN MARKED CONTRAST TO THE COMMISSION'S POWER TO ISSUE CEASE
AND DESIST ORDERS WITH RESPECT TO VIOLATIONS OF SEC. 5 OF THE FEDERAL
TRADE COMMISSION ACT, AS AMENDED, 15 U.S.C. SEC. 45,  FN3  AND WITH
RESPECT TO VIOLATIONS OF THE CLAYTON ACT, SECS. 1, 3, 7, 8, 11, AS
AMENDED, 15 U.S.C. SECS. 13, 14, 18, 19, 21.  FN4  ON THE OTHER HAND,
IT IS CONSONANT WITH AND CLOSELY RELATED TO ANOTHER IMPORTANT FUNCTION
OF THE COMMISSION, WHICH FROM THE BEGINNING HAS HAD EXTENSIVE POWERS TO
INVESTIGATE AND REPORT ON PRACTICES WHICH CONCERN OR AFFECT THE
ENFORCEMENT OF LAWS RELATING TO TRADE AND COMMERCE, INCLUDING THE
ANTITRUST LAWS.  FN5  SUCH INVESTIGATIONS BY THE COMMISSION HAVE NEVER
BEEN DEEMED PREREQUISITE TO ANTITRUST SUITS BY THE UNITED STATES; AND
THERE IS NOTHING TO SUGGEST THAT CONGRESS, IN AUTHORIZING THE
COMMISSION TO INVESTIGATE EXPORT ASSOCIATIONS, INTENDED TO PLACE SUCH
INVESTIGATIONS ON ANY DIFFERENT FOOTING THAN OTHERS, WHICH THE
COMMISSION HAD ALREADY BEEN AUTHORIZED TO CONDUCT. 

IT IS SUGGESTED THAT CONGRESS COULD NOT HAVE CONTEMPLATED "CONCURRENT
JURISDICTION" OF THE COMMISSION AND THE COURTS, BECAUSE OF THE
INCONVENIENCE TO SUITORS IN NOT BEING AFFORDED AN OPPORTUNITY TO MEND
THEIR WAYS BY FOLLOWING THE COMMISSION'S RECOMMENDATIONS.  AND
PETITIONERS URGE THAT CONGRESS COULD NOT HAVE INTENDED CONCURRENT
JURISDICTION, SINCE IT EXPLICITLY PROVIDED FOR IT WHEN IT SO DESIRED. 
THUS SECS. 1, 3, 7, AND 8 OF THE CLAYTON ACT, AS AMENDED, 15 U.S.C.
SECS. 13, 14, 18, 19, MAY BE ENFORCED EITHER BY CEASE AND DESIST ORDERS
OF THE COMMISSION, SEC. 11, 15 U.S.C. SEC. 21, OR BY SUITS IN EQUITY
INSTITUTED BY THE SEVERAL DISTRICT ATTORNEYS IN THEIR RESPECTIVE
DISTRICTS, UNDER THE DIRECTION OF THE ATTORNEY GENERAL, SEC. 15, 15
U.S.C. SEC. 25. 

THIS ARGUMENT OVERLOOKS THE FACT THAT THE COMMISSION'S AUTHORITY IS
TO INVESTIGATE AND RECOMMEND, NOT TO RESTRAIN VIOLATIONS OF THE
ANTITRUST LAWS (SAVE AS THEY MAY INCIDENTALLY BE VIOLATIONS OF OTHER
STATUTES, WHICH THE COMMISSION MAY ENFORCE).  THE COMMISSION, BY ITS
INVESTIGATIONS AND RECOMMENDATIONS, MAY RENDER A USEFUL SERVICE IN
BRINGING VIOLATIONS TO THE ATTENTION OF THE DEPARTMENT OF JUSTICE OR BY
SHOWING THAT RESORT TO THE COURTS IS UNNECESSARY, EITHER BECAUSE THERE
HAS BEEN NO VIOLATION OR BECAUSE THE ASSOCIATIONS HAVE SATISFACTORILY
CORRECTED THEIR TRADE PRACTICES.  BUT THE COMMISSION, UNDER THE WEBB
POMERENE ACT, DOES NOT ENFORCE THE ANTITRUST LAWS; ITS POWERS ARE
EXHAUSTED WHEN IT HAS REFERRED ITS FINDINGS TO THE ATTORNEY GENERAL. 
INDEED, THE PROVISIONS FOR SUCH REFERENCE ARE NECESSARY NOT BECAUSE THE
COMMISSION HAS A PRIMARY JURISDICTION, BUT ONLY BECAUSE IT CANNOT
ITSELF ENFORCE THE ANTITRUST LAWS.  FURTHER, THERE IS NO WANT OF
SPECIFIC AUTHORITY FOR THE UNITED STATES TO ENFORCE THE ANTITRUST LAWS;
THE VIOLATIONS HERE ALLEGED ARE NOT VIOLATIONS OF THE WEBB-POMERENE
ACT, BUT OF THE SHERMAN ACT, AND IT IS THE LATTER WHICH PROVIDES FOR
SUITS TO BE BROUGHT BY THE UNITED STATES. 

BUT EVEN IF THE CASE WERE ONE OF CONCURRENT JURISDICTION, WE CANNOT
ASSUME THAT THERE WOULD BE ANY UNSEEMLY CONFLICT BETWEEN THE COMMISSION
AND THE DEPARTMENT OF JUSTICE.  CONGRESS HAS FOUND NO SUCH OBJECTION TO
THE CONCURRENT JURISDICTION TO ENFORCE THE PROVISIONS OF THE CLAYTON
ACT TO WHICH WE HAVE REFERRED.  THE TWO AGENCIES WILL SELDOM ACT
SIMULTANEOUSLY.  THERE WOULD BE NO OCCASION FOR AN INVESTIGATION BY THE
COMMISSION IF THE ATTORNEY GENERAL HAD ALREADY PROCURED THE REQUISITE
EVIDENCE OF VIOLATIONS AND WAS READY TO PROCEED WITH HIS SUIT, AS IS
SAID TO BE THE CASE HERE.  AND THERE IS NO BASIS FOR INTERPRETING THE
STATUTE AS THOUGH IT HAD BEEN CONTRIVED TO PREVENT HOSTILE ACTION
RATHER THAN TO ENCOURAGE EFFICIENT COOPERATION BETWEEN THE COMMISSION
AND THE DEPARTMENT OF JUSTICE. 

AS WE HAVE SAID, THE WEBB-POMERENE ACT'S GRANT OF POWER TO THE
COMMISSION WOULD CURTAIL THE AUTHORITY OF THE UNITED STATES TO CONDUCT
ANTITRUST SUITS ONLY IF IT WERE DEEMED TO BE AN IMPLIED REPEAL PRO
TANTO OF SEC. 4 OF THE SHERMAN ACT.  AS WE POINTED OUT IN UNITED STATES
V. BORDEN CO., SUPRA, 198-199, 203-206, SUCH REPEALS BY IMPLICATION ARE
NOT FAVORED.  THERE WE HELD THAT PROVISIONS OF THE CAPPER-VOLSTEAD ACT,
7 U.S.C. SECS. 291, 292, COMPARABLE TO THOSE OF SECS. 2 AND 5 OF THE
WEBB-POMERENE ACT, DID NOT OPERATE TO RESTRICT THE AUTHORITY OF THE
UNITED STATES TO MAINTAIN SUITS FOR VIOLATION OF THE ANTITRUST LAWS. 

U.S.C. SECS. 291, 292, AUTHORIZED COLLECTIVE MARKETING BY MEMBERS OF
AGRICULTURAL COOPERATIVES BUT EMPOWERED THE SECRETARY OF AGRICULTURE TO
ISSUE CEASE AND DESIST ORDERS, UPON INVESTIGATION AND FINDINGS THAT ANY
SUCH COOPERATIVE ASSOCIATIONS MONOPOLIZED OR RESTRAINED INTERSTATE
TRADE AND COMMERCE TO SUCH AN EXTENT THAT THE PRICES OF ANY
AGRICULTURAL PRODUCTS WERE THEREBY UNDULY ENHANCED.  AND THE ACT GAVE
JURISDICTION TO THE DISTRICT COURTS TO ENFORCE THE SECRETARY'S ORDERS. 

THIS COURT REJECTED THE CONTENTION THAT THE CAPPER-VOLSTEAD ACT GAVE
TO THE SECRETARY "EXCLUSIVE JURISDICTION" TO DETERMINE IN THE FIRST
INSTANCE WHETHER THE ACTS OF THE COOPERATIVES WERE VIOLATIONS OF THE
SHERMAN ACT BECAUSE THEY WENT BEYOND THE IMMUNITY GRANTED BY THE CAPPER
VOLSTEAD ACT.  AND WE HELD FOR THE SAME REASONS, WHICH ARE CONTROLLING
HERE, THAT NEITHER THE LANGUAGE NOR THE STRUCTURE OF THE CAPPER
VOLSTEAD ACT INDICATED A CONGRESSIONAL PURPOSE TO MAKE THE PROCEDURE BY
THE SECRETARY, WHICH IT ESTABLISHED, EITHER A SUBSTITUTE FOR OR A
PREREQUISITE TO A SUIT BY THE UNITED STATES UNDER THE SHERMAN ACT.  A
FORTIORI NO SUCH PURPOSE IS TO BE INFERRED FROM THE WEBB-POMERENE ACT,
WHICH HAS WITHHELD FROM THE COMMISSION ANY AUTHORITY TO ENFORCE THE
SHERMAN ACT. 

PETITIONERS APPEAL TO THE FAMILIAR PRINCIPLE THAT EQUITY WILL NOT
LEND ITS AID TO A PLAINTIFF WHO HAS NOT FIRST EXHAUSTED HIS
ADMINISTRATIVE REMEDIES.  NATURAL GAS CO. V. SLATTERY, 302 U.S. 300,
310-311; MYERS V. BETHLEHEM CORP., 303 U.S. 41, 51, AND N. 9, AND CASES
CITED.  AND ESPECIALLY THEY URGE THAT THE GOVERNMENT MAY NOT PROCEED
WITH THE PROSECUTION OF A SHERMAN ACT CASE UNTIL THE RELEVANT ISSUES
HAVE BEEN SUBMITTED TO AND PASSED UPON BY AN ADMINISTRATIVE TRIBUNAL
ESTABLISHED BY THE GOVERNMENT TO DETERMINE THOSE ISSUES.  SEE UNITED
STATES V. PACIFIC & ARCTIC CO., 228 U.S. 87, 106-108.  TO THIS THE
ANSWER IS, AS ALREADY INDICATED, THAT THE ONLY FUNCTION OF THE FEDERAL
TRADE COMMISSION UNDER SEC. 5 OF THE WEBB-POMERENE ACT IS TO
INVESTIGATE, RECOMMEND AND REPORT.  IT CAN GIVE NO REMEDY.  IT CAN MAKE
NO CONTROLLING FINDING OF LAW OR FACT.  ITS RECOMMENDATION NEED NOT BE
FOLLOWED BY ANY COURT OR ADMINISTRATIVE OR EXECUTIVE OFFICER. 

THUS THE WORDS OF THE WEBB-POMERENE ACT AND ITS SETTING LEND NO
SUPPORT TO PETITIONERS' CONTENTION.  AND THERE IS NOTHING IN ITS
LEGISLATIVE HISTORY TO SHOW A CONGRESSIONAL PURPOSE TO RESTRICT THE
AUTHORITY OF THE UNITED STATES TO MAINTAIN SUITS FOR EVERY KIND OF
VIOLATION OF THE ANTITRUST LAWS.  THE PRECISE PROBLEM PRESENTED BY THE
PRESENT CASE WAS NOT REFERRED TO IN THE COMMITTEE REPORTS OR THE
DEBATES, EXCEPT IN A REMARK BY SENATOR POMERENE, INDICATING THAT THE
ACT DOES NOT PRECLUDE SUITS BY THE UNITED STATES BEFORE THE COMMISSION
HAS MADE ITS INVESTIGATION.  FN6  BUT THE ABSENCE OF MORE EXTENDED
DISCUSSION OF THE MATTER IS IN ITSELF PERSUASIVE EVIDENCE THAT THERE
WAS NO PURPOSE TO REPEAL ANY PORTION OF SEC. 4 OF THE SHERMAN ACT.  AND
CONGRESS'S CLEAR PURPOSE TO INSURE CONTINUED AND VIGOROUS APPLICATION
OF THE ANTITRUST LAWS TO DOMESTIC RESTRAINTS OF TRADE, NOTWITHSTANDING
THE WEBB-POMERENE ACT, IS SHOWN BY THE COMMITTEE REPORTS  FN7 AS WELL
AS BY STATEMENTS OF THE SPONSORS OF THE LEGISLATION ON THE FLOORS OF
CONGRESS,  FN8  AND IS A STRONG INDICATION THAT THERE WAS NO THOUGHT OF
DEPRIVING THE ATTORNEY GENERAL OF ANY OF HIS POWERS TO PROSECUTE
ANTITRUST SUITS. 

WE CONCLUDE THAT THE UNITED STATES WAS AUTHORIZED TO BRING THIS SUIT,
AND THAT THE COMMISSION'S POWERS CONFERRED BY SEC. 5 OF THE WEBB
POMERENE ACT DO NOT PRECLUDE THE SUIT BEFORE THE COMMISSION HAS ACTED. 
THE ORDER OF THE DISTRICT COURT IS THEREFORE AFFIRMED. 

FN1  THE SECOND PARAGRAPH OF SEC. 5 OF THE WEBB-POMERENE ACT, WITH
WHICH WE ARE ESPECIALLY CONCERNED, READS AS FOLLOWS: 

"WHENEVER THE FEDERAL TRADE COMMISSION SHALL HAVE REASON TO BELIEVE
THAT AN ASSOCIATION OR ANY AGREEMENT MADE OR ACT DONE BY SUCH
ASSOCIATION IS IN RESTRAINT OF TRADE WITHIN THE UNITED STATES OR IN
RESTRAINT OF THE EXPORT TRADE OF ANY DOMESTIC COMPETITOR OF SUCH
ASSOCIATION, OR THAT AN ASSOCIATION EITHER IN THE UNITED STATES OR
ELSEWHERE HAS ENTERED INTO ANY AGREEMENT, UNDERSTANDING, OR CONSPIRACY,
OR DONE ANY ACT WHICH ARTIFICIALLY OR INTENTIONALLY ENHANCES OR
DEPRESSES PRICES WITHIN THE UNITED STATES OF COMMODITIES OF THE CLASS
EXPORTED BY SUCH ASSOCIATION, OR WHICH SUBSTANTIALLY LESSENS
COMPETITION WITHIN THE UNITED STATES OR OTHERWISE RESTRAINS TRADE
THEREIN, IT SHALL SUMMON SUCH ASSOCIATION, ITS OFFICERS, AND AGENTS TO
APPEAR BEFORE IT, AND THEREAFTER CONDUCT AN INVESTIGATION INTO THE
ALLEGED VIOLATIONS OF LAW.  UPON INVESTIGATION, IF IT SHALL CONCLUDE
THAT THE LAW HAS BEEN VIOLATED, IT MAY MAKE TO SUCH ASSOCIATION
RECOMMENDATIONS FOR THE READJUSTMENT OF ITS BUSINESS, IN ORDER THAT IT
MAY THEREAFTER MAINTAIN ITS ORGANIZATION AND MANAGEMENT AND CONDUCT ITS
BUSINESS IN ACCORDANCE WITH LAW.  IF SUCH ASSOCIATION FAILS TO COMPLY
WITH THE RECOMMENDATIONS OF THE FEDERAL TRADE COMMISSION, SAID
COMMISSION SHALL REFER ITS FINDINGS AND RECOMMENDATIONS TO THE ATTORNEY
GENERAL OF THE UNITED STATES FOR SUCH ACTION THEREON AS HE MAY DEEM
PROPER." 

FN2  SEE ALSO REGINA V. YARRINGTON, 1 SALK.  406, 91 ENG. REP.
353(Q.B. 1710); KING V. JUSTICE OF THE WEST RIDING OF YORKSHIRE, 5 T.R.
629, 101 ENG. REP. 352(K.B. 1794); KING V. JUSTICES OF SOMERSETSHIRE, 5
BARN.  & CRESS.  816, 108 ENG. REP. 303(K.B. 1826); KING V. JUDGE
CLEMENTS (1932) 2 K.B. 535; KING V. MIDDLESEX JUSTICES (1933) 1 K.B.
72. 

FN3  SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT, AS AMENDED, 15
U.S.C. SEC. 45, DECLARES THAT "UNFAIR METHODS OF COMPETITION IN
COMMERCE, AND UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN COMMERCE" ARE
UNLAWFUL. 

FN4  SECTION 1 OF THE CLAYTON ACT, 15 U.S.C. SEC. 13, PROHIBITS
CERTAIN DISCRIMINATIONS IN PRICE AND SERVICES; SEC. 3, 15 U.S.C. SEC.
14, CERTAIN SALES OR LEASES WHERE THE PURCHASER IS REQUIRED TO REFRAIN
FROM DEALING WITH COMPETITORS OF THE SELLER; SEC. 7, 15 U.S.C. SEC. 18,
CERTAIN ACQUISITIONS BY CORPORATIONS OF STOCKS IN OTHER CORPORATIONS;
AND SEC. 8, 15 U.S.C. SEC. 19, CERTAIN INTERLOCKING DIRECTORATES. 
CEASE AND DESIST ORDERS WITH RESPECT TO VIOLATIONS OF SECS. 1, 3, 7 AND
8.    FN5  SECTION 6(E) OF THE FEDERAL TRADE COMMISSION ACT, 15 U.S.C.
SEC. 46(E), AUTHORIZES THE COMMISSION, IN LANGUAGE COMPARABLE TO THAT
OF SEC. 5 OF THE WEBB-POMERENE ACT, "UPON THE APPLICATION OF THE
ATTORNEY GENERAL TO INVESTIGATE AND MAKE RECOMMENDATIONS FOR THE
READJUSTMENT OF THE BUSINESS OF ANY CORPORATION ALLEGED TO BE VIOLATING
THE ANTITRUST ACTS IN ORDER THAT THE CORPORATION MAY THEREAFTER
MAINTAIN ITS ORGANIZATION, MANAGEMENT, AND CONDUCT OF BUSINESS IN
ACCORDANCE WITH LAW."  SECTION 6 FURTHER AUTHORIZES THE COMMISSION TO
INVESTIGATE THE ORGANIZATION, BUSINESS, PRACTICES AND MANAGEMENT OF ANY
CORPORATION ENGAGED IN INTERSTATE COMMERCE; TO REQUIRE SUCH
CORPORATIONS TO FILE ANNUAL AND SPECIAL REPORTS AND ANSWERS TO
QUESTIONS CONCERNING SUCH MATTERS; TO INVESTIGATE THE MANNER IN WHICH
CORPORATIONS, DEFENDANTS IN SHERMAN ACT SUITS BROUGHT BY THE
GOVERNMENT, HAVE COMPLIED WITH THE DECREES, AND TO TRANSMIT TO THE
ATTORNEY GENERAL ITS "FINDINGS AND RECOMMENDATIONS"; TO INVESTIGATE AND
REPORT, UPON THE DIRECTION OF THE PRESIDENT OR CONGRESS, THE FACTS
RELATING TO ANY "VIOLATIONS OF THE ANTITRUST ACTS BY ANY CORPORATION";
TO INVESTIGATE TRADE CONDITIONS IN FOREIGN COUNTRIES WHERE TRADE
PRACTICES MAY AFFECT OUR FOREIGN TRADE, AND TO REPORT TO CONGRESS ITS
RECOMMENDATIONS. 

FN6  IN RESPONSE TO A QUESTION BY SENATOR WEEKS, THAT "ASSUMING  ...
THAT THE CONCLUSION OF THE COMMISSION MIGHT BE ALTOGETHER WISE, WHAT
ASSURANCE HAS THE COMMISSION THAT THE DEPARTMENT OF JUSTICE MAY NOT
TAKE A DIFFERENT VIEW AND PROCEED AGAINST THESE COMBINATIONS UNDER THE
PROVISIONS OF THE SHERMAN ANTITRUST ACT?", SENATOR POMERENE ANSWERED:
"IT MIGHT DO THAT."  55 CONG. REC. 2788. 

FN7  H. REP. NO. 1118, 64TH CONG., 1ST SESS., P. 3; S. REP. NO. 1056,
64TH CONG., 2D SESS., PP. 3-4.  SEE ALSO H. REP. NO. 50, 65TH CONG.,
1ST SESS., PP. 1, 3; S. REP. NO. 109, 65TH CONG., 1ST SESS., PP. 3-4;
FEDERAL TRADE COMMISSION, REPORT ON COOPERATION IN AMERICAN EXPORT
TRADE, (1916) VOL. 1, P. 376, ET SEQ. 

FN8  SENATOR POMERENE SAID, 56 CONG. REC. 173:  "IT (THE BILL) DOES
NOT REPEAL, IT DOES NOT AFFECT THE SHERMAN LAW SO FAR AS IT APPLIES TO
DOMESTIC COMMERCE.  IT STRENGTHENS THE SHERMAN LAW AND THE FEDERAL
TRADE COMMISSION LAW, IN SO FAR AS UNFAIR PRACTICES ARE CONCERNED,
BEYOND TERRITORIAL LINES."  AND HE ALSO SAID:  "THIS BILL DOES NOT
REPEAL THE SHERMAN LAW," AND THAT ASSOCIATIONS NOT REMAINING WITHIN THE
IMMUNITY GRANTED BY SEC. 2 "VIOLATE THE LAW OF THE LAND."  (P. 172.) 
HE SAID FURTHER THAT SUCH AN ASSOCIATION "WOULD BE SUBJECT TO THE
JURISDICTION OF THE AUTHORITIES OF THIS COUNTRY, INCLUDING BOTH THE
FEDERAL TRADE COMMISSION AND THE DEPARTMENT OF JUSTICE."  (P. 170.) 
CONGRESSMAN WEBB, IN DISCUSSING THE AMENDMENT TO SEC. 5, SAID THAT THE
LANGUAGE OF THE PROVISIONS OF SEC. 2 "IS A PERFECT PRESERVATION OF THE
SHERMAN LAW IN ALL OF ITS VIRILITY WITHIN THE CONFINES OF THIS
COUNTRY," 56 CONG. REC. 4724, AND THAT ASSOCIATIONS STRAYING BEYOND THE
CONFINES OF THEIR IMMUNITY "ARE LIABLE BOTH UNDER THE FEDERAL TRADE
COMMISSION LAW AND THE SHERMAN ANTITRUST LAW."  55 CONG. REC. 3579. 

MR. JUSTICE ROBERTS CONCURS IN THIS OPINION IN RESPECT OF THIS
COURT'S EXERCISE OF JURISDICTION UNDER SEC. 262 OF THE JUDICIAL CODE. 
HE DISSENTS FROM THE DECISION THAT THE DISTRICT COURT HAD POWER TO HEAR
THE CAUSE IN THE ABSENCE OF AN INVESTIGATION AND RECOMMENDATION BY THE
FEDERAL TRADE COMMISSION. 
..END :









DE BEERS MINES V. UNITED STATES, 325 U.S. 212 


ARGUED MAY 2, 1945.  - DECIDED MAY 21, 1945.  - REVERSED. 


IN A CIVIL PROCEEDING BROUGHT BY THE UNITED STATES AGAINST FOREIGN
CORPORATIONS AND INDIVIDUALS, SEEKING EQUITABLE RELIEF UPON A CHARGE
THAT THE DEFENDANTS WERE ENGAGED IN A CONSPIRACY TO RESTRAIN AND
MONOPOLIZE COMMERCE OF THE UNITED STATES WITH FOREIGN NATIONS IN GEM
AND INDUSTRIAL DIAMONDS, IN VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN
ACT AND SEC. 73 OF THE WILSON TARIFF ACT, THE DISTRICT COURT GRANTED A
PRELIMINARY INJUNCTION RESTRAINING THE CORPORATE DEFENDANTS FROM
WITHDRAWING, SELLING, TRANSFERRING, OR DISPOSING OF ANY PROPERTY
BELONGING TO THEM IN THE UNITED STATES, UNTIL THE CAUSE FINALLY SHALL
HAVE BEEN DETERMINED AND THE DEFENDANTS SHALL HAVE COMPLIED WITH ALL
ORDERS OF THE COURT.  HELD: 

1.  THE ORDER OF THE DISTRICT COURT GRANTING THE PRELIMINARY
INJUNCTION WAS REVIEWABLE HERE BY CERTIORARI UNDER SEC. 262 OF THE
JUDICIAL CODE.  P. 217. 

(A)  IF THE PRELIMINARY INJUNCTION HERE GRANTED, UNLESS SET ASIDE,
WILL STAND THROUGHOUT THE COURSE OF THE TRIAL AND FOR AN INDEFINITE
PERIOD THEREAFTER, AND IF THE ORDER WAS BEYOND THE POWERS CONFERRED
UPON THE COURT, THE CASE IS AN APPROPRIATE ONE FOR THE EXERCISE OF
JURISDICTION BY THIS COURT UNDER SEC. 262.  UNITED STATES ALKALI EXPORT
ASSN. V. UNITED STATES, ANTE, P. 196.  P. 217. 

(B)  THE ORDER DID NOT GRANT SUCH RELIEF AS COULD BE AFFORDED BY ANY
FINAL INJUNCTION, BUT DEALT WITH MATTERS LYING WHOLLY OUTSIDE THE
ISSUES IN THE CASE; NO DECISION OF THE SUIT ON THE MERITS COULD REDRESS
ANY INJURY DONE BY THE ORDER; AND UNLESS IT CAN BE REVIEWED UNDER SEC.
262 IT CAN NEVER BE CORRECTED IF BEYOND THE POWER OF THE TRIAL COURT. 
P. 217. 

2.  THE PRELIMINARY INJUNCTION HERE ISSUED WAS NOT AUTHORIZED BY
STATUTE OR BY THE USAGES OF EQUITY, AND THE ORDER GRANTING IT MUST BE
REVERSED.  P. 219. 

(A)  RULE 70 OF THE RULES OF CIVIL PROCEDURE, WHICH PERMITS THE ISSUE
OF A WRIT OF ATTACHMENT OR SEQUESTRATION AGAINST THE PROPERTY OF A
DISOBEDIENT PARTY TO COMPEL SATISFACTION OF A JUDGMENT, IS OPERATIVE
ONLY AFTER A JUDGMENT IS ENTERED.  P. 218. 

(B)  THE PRELIMINARY INJUNCTION HERE ISSUED WAS NOT AUTHORIZED BY
SEC. 4 OF THE SHERMAN ACT OR BY SEC. 262 OF THE JUDICIAL CODE.  P.
218. 

(C)  THE PRELIMINARY INJUNCTION HERE ISSUED DEALS WITH A MATTER LYING
WHOLLY OUTSIDE THE ISSUES IN THE SUIT; IT DEALS WITH PROPERTY WHICH IN
NO CIRCUMSTANCES CAN BE DEALT WITH IN ANY FINAL INJUNCTION THAT MAY BE
ENTERED.  P. 220. 

(D)  CASES INVOLVING INTERLOCUTORY INJUNCTIONS GRANTED WITH RESPECT
TO FUNDS OR PROPERTY WHICH WOULD HAVE BEEN THE SUBJECT OF THE
PROVISIONS OF FINAL DECREES, AND CASES INVOLVING INJUNCTIONS BY FEDERAL
COURTS TO RESTRAIN INTERFERENCE WITH THEIR JURISDICTION, DO NOT SUSTAIN
THE PRELIMINARY INJUNCTION HERE ISSUED.  P. 220. 

(E)  THE PRACTICE IN RESPECT OF WRITS OF NE EXEAT IS NOT ANALOGOUS. 
P. 221. 

(F)  SINCE UNDER THE CIRCUMSTANCES THE DISTRICT COURT IS WITHOUT
JURISDICTION TO DEMAND SECURITY, IT IS EQUALLY WITHOUT AUTHORITY TO
COMPEL THE FURNISHING OF A BOND BY THE SEIZURE OF PROPERTY.  P. 222. 

DE BEERS CONSOLIDATED MINES, LTD. ET AL. V. UNITED STATES. 

NO. 1189.  CERTIORARI TO THE DISTRICT COURT OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK* . 

*TOGETHER WITH NO. 1190, SOCIETE INTERNATIONALE FORESTIERE ET MINIERE
DU CONGO ET AL. V. UNITED STATES, ALSO ON CERTIORARI TO THE DISTRICT
COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. 

CERTIORARI, 324 U.S. 839, TO REVIEW AN ORDER OF THE DISTRICT COURT
GRANTING A PRELIMINARY INJUNCTION AGAINST DEFENDANTS IN A SUIT BROUGHT
BY THE UNITED STATES TO RESTRAIN ALLEGED VIOLATIONS OF THE SHERMAN ACT
AND THE WILSON TARIFF ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE CASES COME BEFORE THE COURT ON PETITIONS FOR CERTIORARI
PRESENTED PURSUANT TO SEC. 262 OF THE JUDICIAL CODE.  FN1  EACH
PETITION IS BY SEVERAL OF THE DEFENDANTS IN A SINGLE SUIT PENDING IN
THE DISTRICT COURT. 

TWO MATTERS ARE PRESENTED:  THE PROPRIETY OF REVIEW OF THE ACTION
BELOW BY CERTIORARI, AND THE ALLEGED EXCESS OF JURISDICTION BY THE
COURT BELOW IN MAKING THE ORDER OF WHICH THE PETITIONERS COMPLAIN.  AN
UNDERSTANDING OF THE ISSUES REQUIRES A STATEMENT OF THE NATURE OF THE
SUIT AND OF THE ORDER MADE. 

THE UNITED STATES FILED A COMPLAINT IN THE DISTRICT COURT AGAINST THE
THREE PETITIONERS IN NO. 1189, WHICH ARE CORPORATIONS ORGANIZED UNDER
THE LAWS OF SOUTH AFRICA; THE PETITIONERS IN NO. 1190, WHICH ARE
RESPECTIVELY CORPORATIONS ORGANIZED UNDER THE LAWS OF THE BELGIAN CONGO
AND UNDER THE LAWS OF PORTUGAL; AND FOUR OTHER CORPORATIONS, ONE
ORGANIZED UNDER THE LAWS OF BELGIUM, ONE UNDER THE LAWS OF THE BELGIAN
CONGO, AND TWO UNDER THE LAWS OF THE UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND, AND SEVEN INDIVIDUALS RESPECTIVELY CHARACTERIZED
AS STOCKHOLDER, OR STOCKHOLDER AND DIRECTOR, OR STOCKHOLDER AND
EMPLOYEE, OR MANAGING AGENT, OR MANAGING DIRECTOR OF ONE OR MORE OF THE
CORPORATIONS.  THE COMPLAINT SOUGHT EQUITABLE RELIEF BASED UPON A
CHARGE THAT THE DEFENDANTS WERE ENGAGED IN A CONSPIRACY TO RESTRAIN AND
MONOPOLIZE THE COMMERCE OF THE UNITED STATES WITH FOREIGN NATIONS IN
GEM AND INDUSTRIAL DIAMONDS, IN VIOLATION OF SECS. 1 AND 2 OF THE
SHERMAN ACT  FN2  AND SEC. 73 OF THE WILSON TARIFF ACT.  FN3  THE
COMPLAINT ALLEGED THAT ALL OF THE CORPORATE DEFENDANTS WERE DOING
BUSINESS WITHIN THE UNITED STATES. 

WITH THE COMPLAINT THE UNITED STATES FILED A MOTION FOR A PRELIMINARY
INJUNCTION IN WHICH IT PRAYED THAT ALL OF THE CORPORATE DEFENDANTS BE
RESTRAINED FROM WITHDRAWING FROM THE COUNTRY ANY PROPERTY LOCATED IN
THE UNITED STATES, AND FROM SELLING, TRANSFERRING OR DISPOSING OF ANY
PROPERTY IN THE UNITED STATES "UNTIL SUCH TIME AS THIS COURT SHALL HAVE
DETERMINED THE ISSUES OF THIS CASE AND DEFENDANT CORPORATIONS SHALL
HAVE COMPLIED WITH ITS ORDERS."  THE REASON GIVEN IN SUPPORT OF THE
MOTION WAS: 

"THE INJURY TO THE UNITED STATES OF AMERICA FROM THE WITHDRAWAL OF
SAID DEPOSITS, DIAMONDS OR OTHER PROPERTY WOULD BE IRREPARABLE BECAUSE
SEQUESTRATION OF SAID PROPERTY IS THE ONLY MEANS OF ENFORCING THIS
COURT'S ORDERS OR DECREE AGAINST SAID FOREIGN CORPORATE DEFENDANTS. 
THE PRINCIPAL BUSINESS OF SAID DEFENDANTS IS CARRIED ON IN FOREIGN
COUNTRIES AND THEY COULD QUICKLY WITHDRAW THEIR ASSETS FROM THE UNITED
STATES AND SO PREVENT ENFORCEMENT OF ANY ORDER OR DECREE WHICH THIS
COURT MAY RENDER." 

AMONGST OTHER SUPPORTING PAPERS WAS AN AFFIDAVIT BY COUNSEL FOR THE
UNITED STATES WHICH STATED THAT "THE INVESTIGATION WHICH HE HAS MADE
SHOWS THE FOREIGN CORPORATE DEFENDANTS NAMED HEREIN HAVE ENDEAVORED TO
AVOID SUBJECTING THEMSELVES TO THE JURISDICTION OF THE COURTS OF THE
UNITED STATES BY MAKING THEIR SALES ABROAD ONLY AND REQUIRING CUSTOMERS
TO PAY IN ADVANCE FOR ALL PURCHASES." 

THERE WAS ALSO A MOTION FOR A RESTRAINING ORDER WITHOUT NOTICE.  THE
REQUESTED RESTRAINING ORDER WAS ISSUED AND SERVED ON A NUMBER OF BANKS;
ONE, A BANK IN WHICH DE BEERS HAD, THE SAME DAY, ESTABLISHED A CREDIT
OF $59,320; OTHERS IN WHICH FORESTIERE HAD CREDITS OF APPROXIMATELY
$632,000.  BANK CREDITS OF PETITIONER DIAMANTES AFFECTED AGGREGATE
APPROXIMATELY $47,000.  BOTH THE TWO LAST NAMED PETITIONERS HAD
PURCHASED MACHINERY AND SUPPLIES IN THE UNITED STATES OF AN APPROXIMATE
VALUE OF $100,000, WHICH WERE COVERED BY THE INJUNCTION.  UPON A
SHOWING THAT AS THE CORPORATE DEFENDANTS WERE FOREIGN CORPORATIONS AND
WOULD BE REQUIRED TO OBTAIN INFORMATION AND AFFIDAVITS IN SUPPORT OF
THEIR CONTENTION THAT SERVICE OF PROCESS IN THE SUIT HAD NOT BEEN MADE
UPON THEM, AND IN SUPPORT OF OTHER MOTIONS ADDRESSED TO FAILURE TO
STATE A CAUSE OF ACTION UNDER THE STATUTES, TIME TO PLEAD OR ANSWER WAS
EXTENDED; AND THE INJUNCTION WAS FROM TIME TO TIME MODIFIED AND
CONTINUED.  COUNSEL FOR THE PETITIONERS, APPEARING SPECIALLY, MOVED FOR
DISSOLUTION OF THE INJUNCTION.  THE CASE WAS HEARD ON AFFIDAVITS AND
ORAL ARGUMENT, THE APPLICATION WAS DENIED, AND THE INJUNCTION WAS
CONTINUED IN FORCE.  THEREUPON THE PETITIONERS APPLIED TO THIS COURT
FOR CERTIORARI UNDER SEC. 262.  THAT SECTION PROVIDES IN PART: 

"THE SUPREME COURT, THE CIRCUIT COURTS OF APPEALS, AND THE DISTRICT
COURTS SHALL HAVE POWER TO ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED
FOR BY STATUTE, WHICH MAY BE NECESSARY FOR THE EXERCISE OF THEIR
RESPECTIVE JURISDICTIONS, AND AGREEABLE TO THE USAGES AND PRINCIPLES OF
LAW." 

ALL THE PETITIONERS ATTACK THE ORDER AS IN SUBSTANCE A SEQUESTRATION
OF PROPERTY BEYOND THE POWER OF THE COURT AND AN ABUSE OF DISCRETION IN
THE CIRCUMSTANCES.  THE PETITIONERS IN NO. 1189 ALSO SEEK A REVERSAL ON
THE GROUND THAT THE COMPLAINT DOES NOT STATE A CLAIM COGNIZABLE BY
UNITED STATES COURTS AND THAT THE AFFIDAVITS FILED BY THESE PETITIONERS
ESTABLISH THAT THE COURT BELOW HAS NO JURISDICTION OVER THE PERSONS OF
THE DEFENDANTS.  IT IS OBVIOUS FROM THE RECORD THAT THESE CONTENTIONS
ARE STILL OPEN IN THE COURT BELOW AND THAT COURT HAS NOT YET PASSED
UPON THEM.  IN THE VIEW WE TAKE OF THE CASE IT IS UNNECESSARY FOR US
PRESENTLY TO CONSIDER THEM. 

IN UNITED STATES ALKALI EXPORT ASSN. V. UNITED STATES, ANTE, P. 196,
THE COURT HAS DISCUSSED THE PROPRIETY OF REVIEW UNDER SEC. 262 IN A
SUIT BROUGHT UNDER THE ANTI-TRUST LAWS WHERE THERE IS A SUBSTANTIAL
QUESTION WHETHER THE DISTRICT COURT HAS JURISDICTION OF A SUIT WHICH IT
HAS RETAINED FOR TRIAL ON THE MERITS.  WHAT IS THERE SAID APPLIES IN
THIS INSTANCE.  IF THE PRELIMINARY INJUNCTION HERE GRANTED, UNLESS SET
ASIDE, WILL STAND THROUGHOUT THE COURSE OF THE TRIAL AND FOR AN
INDEFINITE PERIOD AFTER ITS TERMINATION, AND IF THE ORDER WAS BEYOND
THE POWERS CONFERRED UPON THE COURT, IT IS PLAIN, UNDER THE DECISIONS
MENTIONED, THAT THE PETITIONS PRESENT AN APPROPRIATE CASE FOR THE
EXERCISE OF OUR JURISDICTION UNDER SEC. 262.  AS HEREAFTER NOTED THE
ORDER IN QUESTION WAS NOT MADE TO GRANT INTERLOCUTORY RELIEF SUCH AS
COULD BE AFFORDED BY ANY FINAL INJUNCTION, BUT IS ONE RESPECTING A
MATTER LYING WHOLLY OUTSIDE THE ISSUES IN THE CASE; NO DECISION OF THE
SUIT ON THE MERITS CAN REDRESS ANY INJURY DONE BY THE ORDER; AND
THEREFORE UNLESS IT CAN BE REVIEWED UNDER SEC. 262 IT CAN NEVER BE
CORRECTED IF BEYOND THE POWER OF THE COURT BELOW.  FN4  WHEN CONGRESS
WITHHOLDS INTERLOCUTORY REVIEWS, SEC. 262 CAN, OF COURSE, NOT BE
AVAILED OF TO CORRECT A MERE ERROR IN THE EXERCISE OF CONCEDED JUDICIAL
POWER.  BUT WHEN A COURT HAS NO JUDICIAL POWER TO DO WHAT IT PURPORTS
TO DO - WHEN ITS ACTION IS NOT MERE ERROR BUT USURPATION OF POWER - THE
SITUATION FALLS PRECISELY WITHIN THE ALLOWABLE USE OF SEC. 262.  WE
PROCEED, THEREFORE, TO INQUIRE WHETHER THE DISTRICT COURT IS EMPOWERED
TO ENTER THE ORDER UNDER ATTACK. 

ALTHOUGH THE GOVERNMENT BASED ITS MOTION UPON THE THEORY THAT THE
ENTRY OF THE REQUESTED INJUNCTION WOULD AMOUNT TO A SEQUESTRATION OF
THE DEFENDANTS' ASSETS, AND SO ARGUED IN THE COURT BELOW, IT HAS
ABANDONED THAT POSITION, BECAUSE RULE 70 OF THE RULES OF CIVIL
PROCEDURE,  FN5 WHICH PERMITS THE ISSUE OF A WRIT OF ATTACHMENT OR
SEQUESTRATION AGAINST THE PROPERTY OF A DISOBEDIENT PARTY TO COMPEL
SATISFACTION OF A JUDGMENT, IS OPERATIVE ONLY AFTER A JUDGMENT IS
ENTERED. 

THE GOVERNMENT DISCLAIMS ANY BENEFIT OF RULE 64, WHICH PROVIDES FOR
AN ATTACHMENT AT THE COMMENCEMENT OF, OR DURING THE COURSE OF, AN
ACTION FOR THE PURPOSE OF SECURING PAYMENT OF ANY JUDGMENT ULTIMATELY
OBTAINED, UNDER AND IN ACCORDANCE WITH THE LAW OF THE STATE IN WHICH
THE COURT SITS OR UNDER ANY EXISTING FEDERAL STATUTE.  IT IS ADMITTED
THAT THERE IS NO APPLICABLE FEDERAL STATUTE AND THAT, UNDER THE LAW OF
NEW YORK, AN ATTACHMENT MAY ISSUE ONLY IN AN ACTION SEEKING A MONEY
JUDGMENT AND WILL NOT ISSUE IN AN EQUITY SUIT SUCH AS THE INSTANT ONE. 
FN6 

THE COURT BELOW DEDUCED THE POWER TO GRANT THE INJUNCTION FROM SEC. 4
OF THE SHERMAN ACT  FN7 AND FROM SEC. 262 OF THE JUDICIAL CODE, THE
RESPONDENT SEEKS TO SUSTAIN THE INJUNCTION UNDER THE SAME STATUTORY
PROVISIONS. 

"TO PREVENT AND RESTRAIN VIOLATIONS OF THIS ACT."  THAT JURISDICTION,
AS WE HAVE HELD,  FN8  IS TO BE EXERCISED ACCORDING TO THE GENERAL
PRINCIPLES WHICH GOVERN THE GRANTING OF EQUITABLE RELIEF.  SINCE IT
CONFERS NO NEW OR DIFFERENT POWER THAN THOSE TRADITIONALLY EXERCISED BY
COURTS OF EQUITY, WE ARE REMITTED TO EXAMINATION OF THE PRACTICE OF
SUCH COURTS, UNLESS SEC. 262 HAS ENLARGED THOSE POWERS.  THAT SECTION
EMPOWERS DISTRICT COURTS TO ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED
FOR BY STATUTE WHICH MAY BE NECESSARY FOR THE EXERCISE OF THEIR
RESPECTIVE JURISDICTIONS AND AGREEABLE TO THE USAGES AND PRINCIPLES OF
LAW.  IT TURNS OUT, THEREFORE, THAT WE ARE AGAIN REMITTED TO AN INQUIRY
AS TO WHAT IS THE USAGE, AND WHAT ARE THE PRINCIPLES OF EQUITY
APPLICABLE IN SUCH A CASE. 

PRELIMINARY TO A DISCUSSION OF THE COURSE OF DECISION IN CHANCERY IT
WILL BE WELL TO NOTE EXACTLY WHAT IS THE SUBSTANCE OF THE INJUNCTION,
SINCE THE NAME GIVEN TO THE PROCESS IS NOT DETERMINATIVE.  IN TRUTH THE
PURPOSE AND EFFECT OF THE INJUNCTION IS TO PROVIDE SECURITY FOR
PERFORMANCE OF A FUTURE ORDER WHICH MAY BE ENTERED BY THE COURT.  ITS
ISSUE PRESUPPOSES OR ASSUMES THE FOLLOWING THINGS:  (1) THAT THE COURT
HAS OBTAINED JURISDICTION OF THE PERSONS OF THE DEFENDANTS; (2) THAT IT
MAY BE FOUND AND ADJUDGED THAT THE UNITED STATES HAS STATED A CAUSE OF
ACTION IN ITS COMPLAINT; (3) THAT A DECREE MAY BE ENTERED AFTER TRIAL
ON THE MERITS ENJOINING AND RESTRAINING THE DEFENDANTS FROM CERTAIN
FUTURE CONDUCT; (4) THAT THE DEFENDANTS MAY DISOBEY THE DECREE ENTERED;
(5) THAT A PROCEEDING MAY BE INSTITUTED FOR CONTEMPT AND WILL RESULT
ADVERSELY TO THE DEFENDANTS; (6) THAT A FINE MAY BE IMPOSED; (7) THAT
THE DEFENDANTS MAY NEGLECT OR REFUSE TO PAY THE FINE; (8) THAT AN
EXECUTION ISSUED FOR THE COLLECTION OF THE FINE PURSUANT TO 18 U.S.C.
569 MAY BE INEFFECTUAL TO SEIZE PROPERTY OR MONEY OF THE DEFENDANTS IN
LIQUIDATION OF THE FINE, UNLESS THE MONEYS AND PROPERTIES COVERED BY
THE INJUNCTION ARE HELD TO AWAIT THE EVENT. 

UNDER THE SHERMAN ACT AND THE WILSON TARIFF ACT, THE DISTRICT COURT
HAS NO JURISDICTION IN THIS SUIT TO ENTER A MONEY JUDGMENT.  ITS ONLY
POWER IS TO RESTRAIN THE FUTURE CONTINUANCE OF ACTIONS OR CONDUCT
INTENDED TO MONOPOLIZE OR RESTRAIN COMMERCE.  IT, OF COURSE, HAS THE
POWER, PENDING FINAL ACTION IN THIS RESPECT, TO RESTRAIN ACTION OR
CONDUCT VIOLATIVE OF THE STATUTE.  A PRELIMINARY INJUNCTION IS ALWAYS
APPROPRIATE TO GRANT INTERMEDIATE RELIEF OF THE SAME CHARACTER AS THAT
WHICH MAY BE GRANTED FINALLY.  THE INJUNCTION IN QUESTION IS NOT OF
THIS CHARACTER.  IT IS NOT AN INJUNCTION IN THE CAUSE, AND IT DEALS
WITH A MATTER LYING WHOLLY OUTSIDE THE ISSUES IN THE SUIT.  IT DEALS
WITH PROPERTY WHICH IN NO CIRCUMSTANCES CAN BE DEALT WITH IN ANY FINAL
INJUNCTION THAT MAY BE ENTERED.  IT IS NOT A FORM OF SEIZURE OF
PROPERTY USED IN OFFENDING AGAINST THE STATUTE, FOR THE PROPERTY IS NOT
SUCH AS MIGHT BE SEIZED UNDER SEC. 6 OF THE SHERMAN ACT,  FN9  OR UNDER
SEC. 76 OF THE WILSON ACT,  FN10  AND THE COMPLAINT AND AFFIDAVITS DO
NOT PURPORT SO TO CHARGE.  THIS PROCESS IS, AND CAN ONLY BE, SUSTAINED
AS A METHOD OF PROVIDING SECURITY FOR COMPLIANCE WITH OTHER PROCESS
WHICH CONCEIVABLY MAY BE ISSUED FOR SATISFACTION OF A MONEY JUDGMENT
FOR CONTEMPT. 

THE PARTIES AGREE THAT NEITHER OF THEM CAN FIND ANY DECISION OR
TEXTBOOK AUTHORITY FOR THE REQUISITION OF SUCH SECURITY ON THE FOOTING
OF A COMPLAINT IN EQUITY.  THE RESPONDENT REFERS US TO CERTAIN CASES AS
ANALOGOUS BUT, UPON EXAMINATION, THEY ARE ALL FOUND TO BE CASES IN
WHICH AN INTERLOCUTORY INJUNCTION WAS GRANTED WITH RESPECT TO A FUND OR
PROPERTY WHICH WOULD HAVE BEEN THE SUBJECT OF THE PROVISIONS OF ANY
FINAL DECREE IN THE CAUSE,  FN11  OR AGAINST ACTION WHICH WOULD
ULTIMATELY HAVE BEEN SUBJECT TO INJUNCTION BY FINAL DECREE.  FN12  THE
GOVERNMENT ALSO REFERS US TO CASES WHERE FEDERAL COURTS HAVE ENJOINED
INTERFERENCE WITH THEIR JURISDICTION.  FN13  THUS IT ARGUES THAT A
COURT OF EQUITY HAS INHERENT POWER TO PROTECT ITS JURISDICTION.  THE
FALLACY, IN THE APPLICATION OF THE PRINCIPLE HERE, IS THAT, IF SERVICE
OF THE DEFENDANTS IS PROPERLY OBTAINED, AND IF THE COMPLAINT STATES A
CAUSE OF ACTION, NO ONE QUESTIONS THE JURISDICTION OF THE DISTRICT
COURT TO ENTER AN APPROPRIATE INJUNCTION AGAINST FUTURE CONDUCT
VIOLATIVE OF THE ANTI-TRUST ACTS.  THE INJUNCTION HERE GRANTED CANNOT
AID OR PROTECT THIS EXERCISE OF ITS POWERS, AND IS NOT INTENDED TO DO
SO.    FEDERAL AND STATE COURTS APPEAR CONSISTENTLY TO HAVE REFUSED
RELIEF OF THE NATURE HERE SOUGHT.  FN14  THE GOVERNMENT NEVERTHELESS
URGES THAT EQUITY SHOULD EXTEND ITS JURISDICTION FOR THE PURPOSE
ENVISAGED IN THE ISSUE OF THE INJUNCTION AND ADVANCES SEVERAL REASONS
IN SUPPORT OF ITS POSITION.  IT SUGGESTS THAT, BY ANALOGY TO THE
PRACTICE OF ISSUING WRITS NE EXEAT,  FN15  THE COURT, IF IT WOULD
RESTRAIN, BY SUCH A WRIT, AN INDIVIDUAL DEFENDANT IN A SIMILAR CASE,
SHOULD RESTRAIN THE REMOVAL OF THE PROPERTY OF A CORPORATE DEFENDANT
FROM THE JURISDICTION.  THE ANALOGY IS NOT A HELPFUL ONE, FOR THE WRIT
NE EXEAT WOULD NOT BE ISSUED IN A CASE OF THIS SORT WHERE THE DEFENDANT
PRESENTLY OWES NO DEBT TO THE COMPLAINANT NOR IS UNDER ANY FIXED DUTY
BY REASON OF THE RECEIPT OF MONEYS TO ACCOUNT TO THE COMPLAINANT
THEREFOR.  FN16 

THE GOVERNMENT URGES THAT THE SUPPOSED HARDSHIP IMPOSED UPON THE
DEFENDANTS BY THE ENTRY OF THE INJUNCTION IS EXAGGERATED; THAT, BY
GIVING A BOND, THE DEFENDANTS COULD RELEASE THEIR MONEYS AND PROPERTY. 
TO THIS THERE ARE SEVERAL SUFFICIENT ANSWERS.  IF THE COURT IS WITHOUT
JURISDICTION TO DEMAND SECURITY UNDER THE CIRCUMSTANCES PRESENTED, IT
IS EQUALLY WITHOUT AUTHORITY TO COMPEL THE PROFFER OF A BOND BY THE
SEIZURE OF PROPERTY.  IF THE PROCESS BE JUSTIFIED IN THE PRESENT
POSTURE OF THE CASE, THERE IS NOTHING TO PREVENT OTHER AND FURTHER
SEIZURES OF PROPERTY OR MONEY BROUGHT INTO THE UNITED STATES IN
CONNECTION WITH TRANSACTIONS UNRELATED TO ANY SUPPOSED VIOLATION OF THE
ANTI-TRUST LAWS.  MOREOVER, THE VERY INDEFINITENESS OF THE OBLIGATION,
THE REMOTENESS OF ANY POSSIBLE EXONERATION OF THE SURETY, AND THE
CITIZENSHIP OF THE DEFENDANTS WOULD, AS COMMON EXPERIENCE TELLS US,
REQUIRE THE POSTING OF COLLATERAL WITH ANY BONDSMAN, WHICH WOULD, IN
EFFECT, TIE UP ASSETS OF VALUE EQUAL TO THAT OF THOSE FROZEN BY THE
INJUNCTION. 

TO SUSTAIN THE CHALLENGED ORDER WOULD CREATE A PRECEDENT OF SWEEPING
EFFECT.  THIS SUIT, AS WE HAVE SAID, IS NOT TO BE DISTINGUISHED FROM
ANY OTHER SUIT IN EQUITY.  WHAT APPLIES TO IT APPLIES TO ALL SUCH. 
EVERY SUITOR WHO RESORTS TO CHANCERY FOR ANY SORT OF RELIEF BY
INJUNCTION MAY, ON A MERE STATEMENT OF BELIEF THAT THE DEFENDANT CAN
EASILY MAKE AWAY WITH OR TRANSPORT HIS MONEY OR GOODS, IMPOSE AN
INJUNCTION ON HIM, INDEFINITE IN DURATION, DISABLING HIM TO USE SO MUCH
OF HIS FUNDS OR PROPERTY AS THE COURT DEEMS NECESSARY FOR SECURITY OR
COMPLIANCE WITH ITS POSSIBLE DECREE.  AND, IF SO, IT IS DIFFICULT TO
SEE WHY A PLAINTIFF IN ANY ACTION FOR A PERSONAL JUDGMENT IN TORT OR
CONTRACT MAY NOT, ALSO, APPLY TO THE CHANCELLOR FOR A SO-CALLED
INJUNCTION SEQUESTRATING HIS OPPONENT'S ASSETS PENDING RECOVERY AND
SATISFACTION OF A JUDGMENT IN SUCH A LAW ACTION.  NO RELIEF OF THIS
CHARACTER HAS BEEN THOUGHT JUSTIFIED IN THE LONG HISTORY OF EQUITY
JURISPRUDENCE. 

WE ARE OF OPINION THAT THE INJUNCTION ISSUED IN THIS CASE IS NOT
AUTHORIZED EITHER BY STATUTE OR BY THE USAGES OF EQUITY AND THAT THE
DECREE GRANTING THE INJUNCTION SHOULD BE REVERSED. 

FN1  28 U.S.C. SEC. 377. 

FN2  26 STAT. 209 AS AMENDED 15 U.S.C. SECS. 1, 2. 

FN3  28 STAT. 570 AS AMENDED 15 U.S.C. SEC. 8. 

FN4  SEE IN RE CHETWOOD, 165 U.S. 443, 462; MARYLAND V. SOPER, 270
U.S. 9, 30. 

FN5  28 U.S.C. FOLL.  SEC.  723C. 

FN6  N.Y. CIVIL PRACTICE ACT SEC. 902; 7 CARMODY, NEW YORK PRACTICE,
SEC. 309; THORINGTON V. MERRICK, 101 N.Y. 5, 3 N.E. 794; BROWN V.
CHAMINADE VELOURS, 176 MISC. 238, 26 N.Y.S.2D 1009; AVERY V. AVERY, 119
APP. DIV. 698, 104 N.Y.S. 290.  COMPARE LAZENBY V. CODMAN, 28 F.SUPP. 
949; SHIEL V. PATRICK, 59 F. 992. 

FN7  15 U.S.C. SEC. 4. 

FN8  APPALACHIAN COALS V. UNITED STATES, 288 U.S. 344, 377. 

FN9  15 U.S.C. SEC. 6. 

FN10  15 U.S.C. SEC. 11. 

FN11  DECKERT V. INDEPENDENCE CORP., 311 U.S. 282. 

FN12  LOONEY V. EASTERN TEXAS R. CO., 247 U.S. 214; OHIO OIL CO. V.
CONWAY, 279 U.S. 813; VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S.
515; GIBBS V. BUCK, 307 U.S. 66. 

FN13  THIS POWER HAS OFTEN BEEN EXERCISED IN CASES WHERE A COURT OF
EQUITY HAS FIRST TAKEN JURISDICTION OF A RES AND WHERE SOME OTHER COURT
HAS THEREAFTER ESSAYED TO DEAL WITH THAT RES. SEE, E.G. WABASH R. CO.
V. ADELBERT COLLEGE, 208 U.S. 38, 45; PALMER V. TEXAS, 212 U.S. 118,
129, 130; PRINCESS LIDA V. THOMPSON, 305 U.S. 456, 467. 

FN14  MARTIN V. BERRY SONS' CO., 83 F.2D 857; CITIES SERVICE CO. V.
MCDOWELL, 13 DEL. CH. 109, 116 A. 4; WAHLGREN V. BAUSCH & LOMB OPTICAL
CO., 77 F.2D 121; CAMPBELL V. ERNEST, 64 HUN 188, 19 N.Y.S. 123; PLATT
V. ELIAS, 101 APP. DIV. 518, 91 N.Y.S. 1079; MAINE PRODUCTS CO. V.
ALEXANDER, 115 APP. DIV. 112, 100 N.Y.S. 711; GOLDEN V. TAUSTER, 68
MISC. 459, 125 N.Y.S. 83; WRIGHT CO. V. AERO CORP., 128 N.Y.S. 726;
BROADFOOT V. MILLER, 106 MISC. 455, 174 N.Y.S. 497; COMPARE GORDON V.
WASHINGTON, 295 U.S. 30, 37. 

FN15  SEE 28 U.S.C. SEC. 376. 

FN16  GINSBERG & SONS V. POPKIN, 285 U.S. 204, 208. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE MURPHY
AND MR. JUSTICE RUTLEDGE CONCUR, DISSENTING. 

I THINK THE WRIT SHOULD BE DISMISSED.  FOR I DO NOT THINK THIS IS A
PROPER CASE IN WHICH TO EXERCISE OUR JURISDICTION UNDER SEC. 262 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 377. 

OUR JURISDICTION UNDER SEC. 262 HAS BEEN FULLY REVIEWED BY THE CHIEF
JUSTICE IN U.S. ALKALI EXPORT ASSN. V. UNITED STATES, ANTE, P. 196.  I
AGREE THAT THE EXERCISE OF OUR EXTRAORDINARY JURISDICTION WAS
APPROPRIATE IN THAT CASE.  FOR THE QUESTION PRESENTED NOT ONLY WENT TO
THE JURISDICTION OF THE DISTRICT COURT TO ENTERTAIN THE SUIT.  IF THE
DEFENDANTS IN THAT SUIT WERE RIGHT IN THEIR CONTENTION, A TRIAL ON THE
MERITS WOULD HAVE FRUSTRATED THE STATUTORY SCHEME WHICH CONGRESS HAD
DESIGNED FOR THE CONTROL OF ANTI-TRUST ACTIVITIES. 

BUT THERE IS NO SUCH EXTRAORDINARY SITUATION PRESENTED HERE.  THIS IS
PRECISELY THE KIND OF DECREE WHICH CONGRESS BY THE EXPEDITING ACT OF
FEBRUARY 11, 1903, AS AMENDED, 15 U.S.C. SEC. 29, INTENDED SHOULD NOT
BE BROUGHT HERE FOR REVIEW.  WITH REFERENCE TO THE CHANGE MADE BY THAT
ACT, MR. JUSTICE BRANDEIS SPEAKING FOR THE COURT IN UNITED STATES V.
CALIFORNIA COOPERATIVE CANNERIES, 279 U.S. 553, 558, SAID:  "THESE
PROVISIONS GOVERNING APPEALS IN GENERAL WERE AMENDED BY THE EXPEDITING
ACT SO THAT IN SUITS IN EQUITY UNDER THE ANTI-TRUST ACT 'IN WHICH THE
UNITED STATES IS COMPLAINANT,' THE APPEAL SHOULD BE DIRECT TO THIS
COURT FROM THE FINAL DECREE IN THE TRIAL COURT.  THUS, CONGRESS LIMITED
THE RIGHT OF REVIEW TO AN APPEAL FROM THE DECREE WHICH DISPOSED OF ALL
MATTERS, SEE COLLINS V. MILLER, 252 U.S. 364; AND IT PRECLUDED THE
POSSIBILITY OF AN APPEAL TO EITHER COURT FROM AN INTERLOCUTORY
DECREE." 

TO ALLOW THIS APPEAL IS TO DEFEAT THAT POLICY.  LONG AGO IN BANK OF
COLUMBIA V. SWEENEY, 1 PET. 567, 569, CHIEF JUSTICE MARSHALL STATED
THAT AN ALLOWANCE OF AN APPEAL FROM AN INTERLOCUTORY RULING WHERE
CONGRESS PERMITTED AN APPEAL ONLY FROM A FINAL JUDGMENT WOULD BE A
"PLAIN EVASION" OF THE ACT OF CONGRESS.  WE MADE A LIKE RULING ONLY
RECENTLY IN ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21, 30, WHERE WE
SAID:  "WHERE THE APPEAL STATUTES ESTABLISH THE CONDITIONS OF APPELLATE
REVIEW, AN APPELLATE COURT CANNOT RIGHTLY EXERCISE ITS DISCRETION TO
ISSUE A WRIT WHOSE ONLY EFFECT WOULD BE TO AVOID THOSE CONDITIONS AND
THWART THE CONGRESSIONAL POLICY AGAINST PIECEMEAL APPEALS IN CRIMINAL
CASES." 

THE PRESENT CASE PRESENTS NO ISSUE WHICH WARRANTS A DEPARTURE FROM
THAT LONG SETTLED PRACTICE.  THIS CASE RAISES NO QUESTION OF GRAVE
PUBLIC IMPORTANCE.  IT IS BY NO MEANS COMPARABLE TO EX PARTE UNITED
STATES, 287 U.S. 241, WHERE THE INTERLOCUTORY DECREE WAS EQUIVALENT TO
A DENIAL OF THE ABSOLUTE RIGHT OF THE GOVERNMENT TO PUT THE ACCUSED ON
TRIAL.  IT IS WHOLLY UNLIKE THE CASES CITED IN U.S. ALKALI EXPORT ASSN.
V. UNITED STATES, SUPRA, WHERE WRITS WERE ISSUED UNDER SEC. 262 TO
REVIEW INTERLOCUTORY ORDERS WHICH FORECLOSED THE ADJUDICATION OF RIGHTS
ENTRUSTED TO THE JURISDICTION OF A STATE TRIBUNAL OR WHICH DEPRIVED A
PARTY OF HIS BASIC RIGHT OF TRIAL BY JURY.  THE PUBLIC IMPORTANCE OF
THE PRESENT QUESTION IS NOT APPARENT.  THE ACTUAL HARDSHIP IMPOSED UPON
THE DEFENDANTS IS NO MORE THAN THE COST OF PROCURING A BOND.  IT HAS
ALWAYS BEEN ASSUMED THAT MERE HARDSHIP OR INCONVENIENCE ALONE WAS NOT
SUFFICIENT TO JUSTIFY RESORT TO THE EXTRAORDINARY COURSE OF REVIEW BY
WAY OF SEC. 262.  U.S. ALKALI EXPORT ASSN. V. UNITED STATES, SUPRA.  IS
THE INCONVENIENCE OF PRIVATE LITIGANTS TO BE THE NEWLY FOUND GROUND FOR
EVADING THE EXPEDITING ACT? 

THE REASON ADVANCED FOR DEPARTING FROM THE LONG STANDING PRACTICE IS
THAT "THE ORDER WAS BEYOND THE POWERS CONFERRED UPON THE COURT."  BY
THAT TEST EVERY INTERLOCUTORY ORDER WHICH IS WRONG CAN BE REVIEWED HERE
UNDER SEC. 262.  THAT IS NOVEL DOCTRINE.  THAT SEEMS TO BE THE TEST FOR
THE COURT SAYS THAT THE ORDER CAN NOW BE REVIEWED BECAUSE IT INVOLVES
"A MATTER LYING WHOLLY OUTSIDE THE ISSUES IN THE CASE."  IN OTHER
WORDS, WE LOOK TO THE MERITS AND TAKE THE CASE UNDER SEC. 262 IF IT
APPEARS THAT THE DISTRICT COURT EXCEEDED ITS AUTHORITY.  BUT IT ALWAYS
EXCEEDS ITS AUTHORITY WHEN IT ABUSES ITS DISCRETION.  THUS WE MUST NOW
ENTERTAIN THESE APPEALS ON INTERLOCUTORY ORDERS, THOUGH CONGRESS SAID
WE SHOULD NOT, IN ORDER TO DETERMINE WHETHER THE DISTRICT COURT KEPT
WITHIN BOUNDS.  CERTAINLY CONGRESS KNEW THAT SOME INTERLOCUTORY ORDERS
MIGHT BE ERRONEOUS WHEN IT CHOSE TO MAKE THEM NON-REVIEWABLE.  IT DID
NOT DRAW THE DISTINCTION NOW SUGGESTED BETWEEN INTERLOCUTORY ORDERS
WHICH ARE AN ABUSE OF CONCEDED JUDICIAL POWER AND INTERLOCUTORY ORDERS
WHICH OTHERWISE EXCEED JUDICIAL AUTHORITY.  CONGRESS MOREOVER KNEW THAT
IF IMMEDIATE REVIEW OF INTERLOCUTORY ORDERS COULD NOT BE HAD, NO
DECISION ON THE MERITS MIGHT BE ABLE TO "REDRESS ANY INJURY DONE BY THE
ORDER."  BUT THAT WAS THE CHOICE WHICH IT MADE.  WE SHOULD RESPECT IT. 

THE DECISION, IF FOLLOWED, WILL OPEN THE FLOOD GATES TO REVIEW OF
INTERLOCUTORY DECREES.  IT CIRCUMVENTS THE POLICY OF CONGRESS TO
RESTRICT REVIEW IN THESE CASES TO FINAL JUDGMENTS. 
..END :














WILLIAMS V. NORTH CAROLINA, 325 U.S. 226 


NO. 84.  ARGUED OCTOBER 13, 1944.  - DECIDED MAY 21, 1945.  - 224 N.C.
183, 29 S.E.2D 744, AFFIRMED. 


1.  A MAN AND A WOMAN, DOMICILED IN NORTH CAROLINA, LEFT THEIR SPOUSES
IN NORTH CAROLINA, OBTAINED DECREES OF DIVORCE IN NEVADA, MARRIED AND
RETURNED TO NORTH CAROLINA TO LIVE.  PROSECUTED IN NORTH CAROLINA FOR
BIGAMOUS COHABITATION, THEY PLEADED THE NEVADA DIVORCE DECREES IN
DEFENSE BUT WERE CONVICTED.  HELD THAT, UPON THE RECORD, THE JUDGMENTS
OF CONVICTION WERE NOT INVALID AS DENYING THE NEVADA DIVORCE DECREES
THE FULL FAITH AND CREDIT REQUIRED BY ART. IV, SEC. 1 OF THE
CONSTITUTION.  PP. 234, 236. 

2.  A DECREE OF DIVORCE RENDERED IN ONE STATE MAY BE COLLATERALLY
IMPEACHED IN ANOTHER BY PROOF THAT THE COURT WHICH RENDERED THE DECREE
HAD NO JURISDICTION, EVEN THOUGH THE RECORD OF THE PROCEEDINGS IN THAT
COURT PURPORTS TO SHOW JURISDICTION.  P. 229. 

3.  UNDER OUR SYSTEM OF LAW, JUDICIAL POWER TO GRANT A DIVORCE -
JURISDICTION, STRICTLY SPEAKING - IS FOUNDED ON DOMICIL.  P. 229. 

4.  AS TO THE TRUTH OR EXISTENCE OF A FACT, LIKE THAT OF DOMICIL,
UPON WHICH DEPENDS THE POWER TO EXERT JUDICIAL AUTHORITY, A STATE NOT A
PARTY TO THE EXERTION OF SUCH JUDICIAL AUTHORITY IN ANOTHER STATE BUT
SERIOUSLY AFFECTED BY IT HAS A RIGHT, WHEN ASSERTING ITS OWN
UNQUESTIONED AUTHORITY, TO ASCERTAIN THE TRUTH OR EXISTENCE OF THAT
CRUCIAL FACT.  P. 230. 

5.  PUNISHMENT OF A PERSON FOR AN ACT AS A CRIME WHEN IGNORANT OF THE
FACTS MAKING IT SO, DOES NOT INVOLVE A DENIAL OF DUE PROCESS.  P. 238. 

6.  THE PRIOR DECISION OF THIS COURT IN THIS CASE, WILLIAMS V. NORTH
CAROLINA, 317 U.S. 287, DID NOT FORECLOSE A SECOND TRIAL UPON THE ISSUE
OF DOMICIL.  P. 239. 

WILLIAMS ET AL. V. NORTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

CERTIORARI, 322 U.S. 725, TO REVIEW A JUDGMENT AFFIRMING JUDGMENTS OF
CONVICTION OF BIGAMOUS COHABITATION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE TO REVIEW JUDGMENTS OF THE SUPREME COURT OF NORTH
CAROLINA, AFFIRMING CONVICTIONS FOR BIGAMOUS COHABITATION,  FN1
ASSAILED ON THE GROUND THAT FULL FAITH AND CREDIT, AS REQUIRED BY THE
CONSTITUTION OF THE UNITED STATES, WAS NOT ACCORDED DIVORCES DECREED BY
ONE OF THE COURTS OF NEVADA.  WILLIAMS V. NORTH CAROLINA, 317 U.S. 287,
DECIDED AN EARLIER ASPECT OF THE CONTROVERSY.  IT WAS THERE HELD THAT A
DIVORCE GRANTED BY NEVADA, ON A FINDING THAT ONE SPOUSE WAS DOMICILED
IN NEVADA, MUST BE RESPECTED IN NORTH CAROLINA, WHERE NEVADA'S FINDING
OF DOMICIL WAS NOT QUESTIONED, THOUGH THE OTHER SPOUSE HAD NEITHER
APPEARED NOR BEEN SERVED WITH PROCESS IN NEVADA AND THOUGH RECOGNITION
OF SUCH A DIVORCE OFFENDED THE POLICY OF NORTH CAROLINA.  THE RECORD
THEN BEFORE US DID NOT PRESENT THE QUESTION WHETHER NORTH CAROLINA HAD
THE POWER "TO REFUSE FULL FAITH AND CREDIT TO NEVADA DIVORCE DECREES
BECAUSE, CONTRARY TO THE FINDINGS OF THE NEVADA COURT, NORTH CAROLINA
FINDS THAT NO BONA FIDE DOMICIL WAS ACQUIRED IN NEVADA."  WILLIAMS V.
NORTH CAROLINA, SUPRA, AT 302.  THIS IS THE PRECISE ISSUE WHICH HAS
EMERGED AFTER RETRIAL OF THE CAUSE FOLLOWING OUR REVERSAL.  ITS OBVIOUS
IMPORTANCE BROUGHT THE CASE HERE.  322 U.S. 725. 

THE IMPLICATIONS OF THE FULL FAITH AND CREDIT CLAUSE, ARTICLE IV,
SEC. 1 OF THE CONSTITUTION, FN2  FIRST RECEIVED THE SHARP ANALYSIS OF
THIS COURT IN THOMPSON V. WHITMAN, 18 WALL.  457.  THERETOFORE,
UNCRITICAL NOTIONS ABOUT THE SCOPE OF THAT CLAUSE HAD BEEN EXPRESSED IN
THE EARLY CASE OF MILLS V. DURYEE, 7 CRANCH 481.  THE "DOCTRINE" OF
THAT CASE, AS RESTATED IN ANOTHER EARLY CASE, WAS THAT "THE JUDGMENT OF
A STATE COURT SHOULD HAVE THE SAME CREDIT, VALIDITY, AND EFFECT, IN
EVERY OTHER COURT IN THE UNITED STATES, WHICH IT HAD IN THE STATE WHERE
IT WAS PRONOUNCED."  HAMPTON V. M'CONNEL, 3 WHEAT.  234, 235.  THIS
UTTERANCE, WHEN PUT TO THE TEST, AS IT WAS IN THOMPSON V. WHITMAN,
SUPRA, WAS FOUND TO BE TOO LOOSE.  THOMPSON V. WHITMAN MADE IT CLEAR
THAT THE DOCTRINE OF MILLS V. DURYEE COMES INTO OPERATION ONLY WHEN, IN
THE LANGUAGE OF KENT, "THE JURISDICTION OF THE COURT IN ANOTHER STATE
IS NOT IMPEACHED, EITHER AS TO THE SUBJECT MATTER OR THE PERSON."  ONLY
THEN IS "THE RECORD OF THE JUDGMENT  ...  ENTITLED TO FULL FAITH AND
CREDIT."  1 KENT, COMMENTARIES (2D ED., 1832) 261 N.B.  THE ESSENCE OF
THE MATTER WAS THUS PUT IN WHAT THOMPSON V. WHITMAN ADOPTED FROM STORY:
"'THE CONSTITUTION DID NOT MEAN TO CONFER (UPON THE STATES) A NEW
POWER OR JURISDICTION, BUT SIMPLY TO REGULATE THE EFFECT OF THE
ACKNOWLEDGED JURISDICTION OVER PERSONS AND THINGS WITHIN THEIR
TERRITORY.'"  FN3  18 WALL.  457, 462.  IN SHORT, THE FULL FAITH AND
CREDIT CLAUSE PUTS THE CONSTITUTION BEHIND A JUDGMENT INSTEAD OF THE
TOO FLUID, ILL-DEFINED CONCEPT OF "COMITY."  FN4 

BUT THE CLAUSE DOES NOT MAKE A SISTER-STATE JUDGMENT A JUDGMENT IN
ANOTHER STATE.  THE PROPOSAL TO DO SO WAS REJECTED BY THE PHILADELPHIA
CONVENTION.  2 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787,
447-48.  FN5  "TO GIVE IT THE FORCE OF A JUDGMENT IN ANOTHER STATE, IT
MUST BE MADE A JUDGMENT THERE."  M'ELMOYLE V. COHEN, 13 PET. 312, 325. 
IT CAN BE MADE A JUDGMENT THERE ONLY IF THE COURT PURPORTING TO RENDER
THE ORIGINAL JUDGMENT HAD POWER TO RENDER SUCH A JUDGMENT.  A JUDGMENT
IN ONE STATE IS CONCLUSIVE UPON THE MERITS IN EVERY OTHER STATE, BUT
ONLY IF THE COURT OF THE FIRST STATE HAD POWER TO PASS ON THE MERITS -
HAD JURISDICTION, THAT IS, TO RENDER THE JUDGMENT. 

"IT IS TOO LATE NOW TO DENY THE RIGHT COLLATERALLY TO IMPEACH A
DECREE OF DIVORCE MADE IN ANOTHER STATE, BY PROOF THAT THE COURT HAD NO
JURISDICTION, EVEN WHEN THE RECORD PURPORTS TO SHOW JURISDICTION ..." 
IT WAS "TOO LATE" MORE THAN FORTY YEARS AGO.  GERMAN SAVINGS SOCIETY V.
DORMITZER, 192 U.S. 125, 128. 

UNDER OUR SYSTEM OF LAW, JUDICIAL POWER TO GRANT A DIVORCE -
JURISDICTION, STRICTLY SPEAKING - IS FOUNDED ON DOMICIL.  BELL V. BELL,
181 U.S. 175; ANDREWS V. ANDREWS, 188 U.S. 14.  THE FRAMERS OF THE
CONSTITUTION WERE FAMILIAR WITH THIS JURISDICTIONAL PREREQUISITE, AND
SINCE 1789 NEITHER THIS COURT NOR ANY OTHER COURT IN THE ENGLISH
SPEAKING WORLD HAS QUESTIONED IT.  DOMICIL IMPLIES A NEXUS BETWEEN
PERSON AND PLACE OF SUCH PERMANENCE AS TO CONTROL THE CREATION OF LEGAL
RELATIONS AND RESPONSIBILITIES OF THE UTMOST SIGNIFICANCE.  THE DOMICIL
OF ONE SPOUSE WITHIN A STATE GIVES POWER TO THAT STATE, WE HAVE HELD,
TO DISSOLVE A MARRIAGE WHERESOEVER CONTRACTED.  IN VIEW OF WILLIAMS V.
NORTH CAROLINA, SUPRA, THE JURISDICTIONAL REQUIREMENT OF DOMICIL IS
FREED FROM CONFUSING REFINEMENTS ABOUT "MATRIMONIAL DOMICIL," SEE DAVIS
V. DAVIS, 305 U.S. 32, 41, AND THE LIKE.  DIVORCE, LIKE MARRIAGE, IS OF
CONCERN NOT MERELY TO THE IMMEDIATE PARTIES.  IT AFFECTS PERSONAL
RIGHTS OF THE DEEPEST SIGNIFICANCE.  IT ALSO TOUCHES BASIC INTERESTS OF
SOCIETY.  SINCE DIVORCE, LIKE MARRIAGE, CREATES A NEW STATUS, EVERY
CONSIDERATION OF POLICY MAKES IT DESIRABLE THAT THE EFFECT SHOULD BE
THE SAME WHEREVER THE QUESTION ARISES. 

IT IS ONE THING TO REOPEN AN ISSUE THAT HAS BEEN SETTLED AFTER
APPROPRIATE OPPORTUNITY TO PRESENT THEIR CONTENTIONS HAS BEEN AFFORDED
TO ALL WHO HAD AN INTEREST IN ITS ADJUDICATION.  THIS APPLIES ALSO TO
JURISDICTIONAL QUESTIONS.  AFTER A CONTEST THESE CANNOT BE RELITIGATED
AS BETWEEN THE PARTIES.  FORSYTH V. HAMMOND, 166 U.S. 506, 517; CHICAGO
LIFE INS. CO. V. CHERRY, 244 U.S. 25, 30; DAVIS V. DAVIS, SUPRA.  BUT
THOSE NOT PARTIES TO A LITIGATION OUGHT NOT TO BE FORECLOSED BY THE
INTERESTED ACTIONS OF OTHERS; ESPECIALLY NOT A STATE WHICH IS CONCERNED
WITH THE VINDICATION OF ITS OWN SOCIAL POLICY AND HAS NO MEANS,
CERTAINLY NO EFFECTIVE MEANS, TO PROTECT THAT INTEREST AGAINST THE
SELFISH ACTION OF THOSE OUTSIDE ITS BORDERS.  THE STATE OF DOMICILIARY
ORIGIN SHOULD NOT BE BOUND BY AN UNFOUNDED, EVEN IF NOT COLLUSIVE,
RECITAL IN THE RECORD OF A COURT OF ANOTHER STATE.  AS TO THE TRUTH OR
EXISTENCE OF A FACT, LIKE THAT OF DOMICIL, UPON WHICH DEPENDS THE POWER
TO EXERT JUDICIAL AUTHORITY, A STATE NOT A PARTY TO THE EXERTION OF
SUCH JUDICIAL AUTHORITY IN ANOTHER STATE BUT SERIOUSLY AFFECTED BY IT
HAS A RIGHT, WHEN ASSERTING ITS OWN UNQUESTIONED AUTHORITY, TO
ASCERTAIN THE TRUTH OR EXISTENCE OF THAT CRUCIAL FACT.  FN6 

THESE CONSIDERATIONS OF POLICY ARE EQUALLY APPLICABLE WHETHER POWER
WAS ASSUMED BY THE COURT OF THE FIRST STATE OR CLAIMED AFTER INQUIRY. 
THIS MAY LEAD, NO DOUBT, TO CONFLICTING DETERMINATIONS OF WHAT JUDICIAL
POWER IS FOUNDED UPON.  SUCH CONFLICT IS INHERENT IN THE PRACTICAL
APPLICATION OF THE CONCEPT OF DOMICIL IN THE CONTEXT OF OUR FEDERAL
SYSTEM.  FN7  SEE WORCESTER COUNTY CO. V. RILEY, 302 U.S. 292; TEXAS V.
FLORIDA, 306 U.S. 398; DISTRICT OF COLUMBIA V. MURPHY, 314 U.S. 441. 
WHAT WAS SAID IN WORCESTER COUNTY CO. V. RILEY, SUPRA, IS PERTINENT
HERE.  "NEITHER THE FOURTEENTH AMENDMENT NOR THE FULL FAITH AND CREDIT
CLAUSE REQUIRES UNIFORMITY IN THE DECISIONS OF THE COURTS OF DIFFERENT
STATES AS TO THE PLACE OF DOMICIL, WHERE THE EXERTION OF STATE POWER IS
DEPENDENT UPON DOMICIL WITHIN ITS BOUNDARIES."  302 U.S. 292, 299.  IF
A FINDING BY THE COURT OF ONE STATE THAT DOMICIL IN ANOTHER STATE HAS
BEEN ABANDONED WERE CONCLUSIVE UPON THE OLD DOMICILIARY STATE, THE
POLICY OF EACH STATE IN MATTERS OF MOST INTIMATE CONCERN COULD BE
SUBVERTED BY THE POLICY OF EVERY OTHER STATE.  THIS COURT HAS LONG AGO
DENIED THE EXISTENCE OF SUCH DESTRUCTIVE POWER.  THE ISSUE HAS A FAR
REACH.  FOR DOMICIL IS THE FOUNDATION OF PROBATE JURISDICTION PRECISELY
AS IT IS THAT OF DIVORCE.  THE RULING IN TILT V. KELSEY, 207 U.S. 43,
REGARDING THE PROBATE OF A WILL, IS EQUALLY APPLICABLE TO A SISTER
STATE DIVORCE DECREE:  "THE FULL FAITH AND CREDIT DUE TO THE
PROCEEDINGS OF THE NEW JERSEY COURT DO NOT REQUIRE THAT THE COURTS OF
NEW YORK SHALL BE BOUND BY ITS ADJUDICATION ON THE QUESTION OF
DOMICIL.  ON THE CONTRARY, IT IS OPEN TO THE COURTS OF ANY STATE IN THE
TRIAL OF A COLLATERAL ISSUE TO DETERMINE UPON THE EVIDENCE PRODUCED THE
TRUE DOMICIL OF THE DECEASED."  207 U.S. 43, 53. 

ALTHOUGH IT IS NOW SETTLED THAT A SUIT FOR DIVORCE IS NOT AN ORDINARY
ADVERSARY PROCEEDING, IT DOES NOT PROMOTE ANALYSIS, AS WAS RECENTLY
POINTED OUT, TO LABEL DIVORCE PROCEEDINGS AS ACTIONS IN REM.  WILLIAMS
V. NORTH CAROLINA, SUPRA, AT 297.  BUT INSOFAR AS A DIVORCE DECREE
PARTAKES OF SOME OF THE CHARACTERISTICS OF A DECREE IN REM, IT IS
MISLEADING TO SAY THAT ALL THE WORLD IS PARTY TO A PROCEEDING IN REM. 
SEE BRIGHAM V. FAYERWEATHER, 140 MASS. 411, 413, 5 N.E. 265, QUOTED IN
TILT V. KELSEY, SUPRA, AT 52.  ALL THE WORLD IS NOT PARTY TO A DIVORCE
PROCEEDING.  WHAT IS TRUE IS THAT ALL THE WORLD NEED NOT BE PRESENT
BEFORE A COURT GRANTING THE DECREE AND YET IT MUST BE RESPECTED BY THE
OTHER FORTY-SEVEN STATES PROVIDED - AND IT IS A BIG PROVISO - THE
CONDITIONS FOR THE EXERCISE OF POWER BY THE DIVORCE-DECREEING COURT ARE
VALIDLY ESTABLISHED WHENEVER THAT JUDGMENT IS ELSEWHERE CALLED INTO
QUESTION.  IN SHORT, THE DECREE OF DIVORCE IS A CONCLUSIVE ADJUDICATION
OF EVERYTHING EXCEPT THE JURISDICTIONAL FACTS UPON WHICH IT IS FOUNDED,
AND DOMICIL IS A JURISDICTIONAL FACT.  TO PERMIT THE NECESSARY FINDING
OF DOMICIL BY ONE STATE TO FORECLOSE ALL STATES IN THE PROTECTION OF
THEIR SOCIAL INSTITUTIONS WOULD BE INTOLERABLE. 

BUT TO ENDOW EACH STATE WITH CONTROLLING AUTHORITY TO NULLIFY THE
POWER OF A SISTER STATE TO GRANT A DIVORCE BASED UPON A FINDING THAT
ONE SPOUSE HAD ACQUIRED A NEW DOMICIL WITHIN THE DIVORCING STATE WOULD,
IN THE PROPER FUNCTIONING OF OUR FEDERAL SYSTEM, BE EQUALLY
INDEFENSIBLE.  NO STATE COURT CAN ASSUME COMPREHENSIVE ATTENTION TO THE
VARIOUS AND POTENTIALLY CONFLICTING INTERESTS THAT SEVERAL STATES MAY
HAVE IN THE INSTITUTIONAL ASPECTS OF MARRIAGE.  THE NECESSARY
ACCOMMODATION BETWEEN THE RIGHT OF ONE STATE TO SAFEGUARD ITS INTEREST
IN THE FAMILY RELATION OF ITS OWN PEOPLE AND THE POWER OF ANOTHER STATE
TO GRANT DIVORCES CAN BE LEFT TO NEITHER STATE. 

THE PROBLEM IS TO RECONCILE THE RECIPROCAL RESPECT TO BE ACCORDED BY
THE MEMBERS OF THE UNION TO THEIR ADJUDICATIONS WITH DUE REGARD FOR
ANOTHER MOST IMPORTANT ASPECT OF OUR FEDERALISM WHEREBY "THE DOMESTIC
RELATIONS OF HUSBAND AND WIFE  ...  WERE MATTERS RESERVED TO THE
STATES," POPOVICI V. AGLER, 280 U.S. 379, 383-84, AND DO NOT BELONG TO
THE UNITED STATES.  IN RE BURRUS, 136 U.S. 586, 593-94.  THE RIGHTS
THAT BELONG TO ALL THE STATES AND THE OBLIGATIONS WHICH MEMBERSHIP IN
THE UNION IMPOSES UPON ALL, ARE MADE EFFECTIVE BECAUSE THIS COURT IS
OPEN TO CONSIDER CLAIMS, SUCH AS THIS CASE PRESENTS, THAT THE COURTS OF
ONE STATE HAVE NOT GIVEN THE FULL FAITH AND CREDIT TO THE JUDGMENT OF A
SISTER STATE THAT IS REQUIRED BY ART. IV, SEC. 1 OF THE CONSTITUTION. 

BUT THE DISCHARGE OF THIS DUTY DOES NOT MAKE OF THIS COURT A COURT OF
PROBATE AND DIVORCE.  NEITHER A RATIONAL SYSTEM OF LAW NOR HARD
PRACTICALITY CALLS FOR OUR INDEPENDENT DETERMINATION, IN REVIEWING THE
JUDGMENT OF A STATE COURT, OF THAT RATHER ELUSIVE RELATION BETWEEN
PERSON AND PLACE WHICH ESTABLISHES DOMICIL.  "IT IS NOT FOR US TO RETRY
THE FACTS," AS WAS HELD IN A CASE IN WHICH, LIKE THE PRESENT, THE
JURISDICTION UNDERLYING A SISTER-STATE JUDGMENT WAS DEPENDENT ON
DOMICIL.  BURBANK V. ERNST, 232 U.S. 162, 164.  THE CHALLENGED JUDGMENT
MUST, HOWEVER, SATISFY OUR SCRUTINY THAT THE RECIPROCAL DUTY OF RESPECT
OWED BY THE STATES TO ONE ANOTHER'S ADJUDICATIONS HAS BEEN FAIRLY
DISCHARGED, AND HAS NOT BEEN EVADED UNDER THE GUISE OF FINDING AN
ABSENCE OF DOMICIL AND THEREFORE A WANT OF POWER IN THE COURT RENDERING
THE JUDGMENT. 

WHAT IS IMMEDIATELY BEFORE US IS THE JUDGMENT OF THE SUPREME COURT OF
NORTH CAROLINA.  WE HAVE AUTHORITY TO UPSET IT ONLY IF THERE IS WANT OF
FOUNDATION FOR THE CONCLUSION THAT THAT COURT REACHED.  THE CONCLUSION
IT REACHED TURNS ON ITS FINDING THAT THE SPOUSES WHO OBTAINED THE
NEVADA DECREES WERE NOT DOMICILED THERE.  THE FACT THAT THE NEVADA
COURT FOUND THAT THEY WERE DOMICILED THERE IS ENTITLED TO RESPECT, AND
MORE.  THE BURDEN OF UNDERMINING THE VERITY WHICH THE NEVADA DECREES
IMPORT RESTS HEAVILY UPON THE ASSAILANT.  BUT SIMPLY BECAUSE THE NEVADA
COURT FOUND THAT IT HAD POWER TO AWARD A DIVORCE DECREE CANNOT, WE HAVE
SEEN, FORECLOSE REEXAMINATION BY ANOTHER STATE.  OTHERWISE, AS WAS
POINTED OUT LONG AGO, A COURT'S RECORD WOULD ESTABLISH ITS POWER AND
THE POWER WOULD BE PROVED BY THE RECORD.  SUCH CIRCULAR REASONING WOULD
GIVE ONE STATE A CONTROL OVER ALL THE OTHER STATES WHICH THE FULL FAITH
AND CREDIT CLAUSE CERTAINLY DID NOT CONFER.  THOMPSON V. WHITMAN,
SUPRA.  IF THIS COURT FINDS THAT PROPER WEIGHT WAS ACCORDED TO THE
CLAIMS OF POWER BY THE COURT OF ONE STATE IN RENDERING A JUDGMENT THE
VALIDITY OF WHICH IS PLEADED IN DEFENSE IN ANOTHER STATE, THAT THE
BURDEN OF OVERCOMING SUCH RESPECT BY DISPROOF OF THE SUBSTRATUM OF FACT
- HERE DOMICIL - ON WHICH SUCH POWER ALONE CAN REST WAS PROPERLY
CHARGED AGAINST THE PARTY CHALLENGING THE LEGITIMACY OF THE JUDGMENT,
THAT SUCH ISSUE OF FACT WAS LEFT FOR FAIR DETERMINATION BY APPROPRIATE
PROCEDURE, AND THAT A FINDING ADVERSE TO THE NECESSARY FOUNDATION FOR
ANY VALID SISTER-STATE JUDGMENT WAS AMPLY SUPPORTED IN EVIDENCE, WE
CANNOT UPSET THE JUDGMENT BEFORE US.  AND WE CANNOT DO SO EVEN IF WE
ALSO FOUND IN THE RECORD OF THE COURT OF ORIGINAL JUDGMENT WARRANT FOR
ITS FINDING THAT IT HAD JURISDICTION.  IF IT IS A MATTER TURNING ON
LOCAL LAW, GREAT DEFERENCE IS OWED BY THE COURTS OF ONE STATE TO WHAT A
COURT OF ANOTHER STATE HAS DONE.  SEE MICHIGAN TRUST CO. V. FERRY, 228
U.S. 346.  BUT WHEN WE ARE DEALING AS HERE WITH AN HISTORIC NOTION
COMMON TO ALL ENGLISH-SPEAKING COURTS, THAT OF DOMICIL, WE SHOULD NOT
FIND A WANT OF DEFERENCE TO A SISTER STATE ON THE PART OF A COURT OF
ANOTHER STATE WHICH FINDS AN ABSENCE OF DOMICIL WHERE SUCH A CONCLUSION
IS WARRANTED BY THE RECORD. 

WHEN THIS CASE WAS FIRST HERE, NORTH CAROLINA DID NOT CHALLENGE THE
FINDING OF THE NEVADA COURT THAT PETITIONERS HAD ACQUIRED DOMICILS IN
NEVADA.  FOR HER CHALLENGE OF THE NEVADA DECREES, NORTH CAROLINA RESTED
ON HADDOCK V. HADDOCK, 201 U.S. 562.  UPON RETRIAL, HOWEVER, THE
EXISTENCE OF DOMICIL IN NEVADA BECAME THE DECISIVE ISSUE.  THE
JUDGMENTS OF CONVICTION NOW UNDER REVIEW BRING BEFORE US A RECORD WHICH
MAY BE FAIRLY SUMMARIZED BY SAYING THAT THE PETITIONERS LEFT NORTH
CAROLINA FOR THE PURPOSE OF GETTING DIVORCES FROM THEIR RESPECTIVE
SPOUSES IN NEVADA AND AS SOON AS EACH HAD DONE SO AND MARRIED ONE
ANOTHER THEY LEFT NEVADA AND RETURNED TO NORTH CAROLINA TO LIVE THERE
TOGETHER AS MAN AND WIFE.  AGAINST THE CHARGE OF BIGAMOUS COHABITATION
UNDER SEC. 14-183 OF THE NORTH CAROLINA GENERAL STATUTES, PETITIONERS
STOOD ON THEIR NEVADA DIVORCES AND OFFERED EXEMPLIFIED COPIES OF THE
NEVADA PROCEEDINGS.  FN8  THE TRIAL JUDGE CHARGED THAT THE STATE HAD
THE BURDEN OF PROVING BEYOND A REASONABLE DOUBT THAT (1) EACH
PETITIONER WAS LAWFULLY MARRIED TO ONE PERSON; (2) THEREAFTER EACH
PETITIONER CONTRACTED A SECOND MARRIAGE WITH ANOTHER PERSON OUTSIDE
NORTH CAROLINA; (3) THE SPOUSES OF PETITIONERS WERE LIVING AT THE TIME
OF THIS SECOND MARRIAGE; (4) PETITIONERS COHABITED WITH ONE ANOTHER IN
NORTH CAROLINA AFTER THE SECOND MARRIAGE.  THE BURDEN, IT WAS CHARGED,
THEN DEVOLVED UPON PETITIONERS "TO SATISFY THE TRIAL JURY, NOT BEYOND A
REASONABLE DOUBT NOR BY THE GREATER WEIGHT OF THE EVIDENCE, BUT SIMPLY
TO SATISFY" THE JURY FROM ALL THE EVIDENCE, THAT PETITIONERS WERE
DOMICILED IN NEVADA AT THE TIME THEY OBTAINED THEIR DIVORCES.  THE
COURT FURTHER CHARGED THAT "THE RECITATION" OF BONA FIDE DOMICIL IN THE
NEVADA DECREE WAS "PRIMA FACIE EVIDENCE" SUFFICIENT TO WARRANT A
FINDING OF DOMICIL IN NEVADA BUT NOT COMPELLING "SUCH AN INFERENCE." 
IF THE JURY FOUND, AS THEY WERE TOLD, THAT PETITIONERS HAD DOMICILS IN
NORTH CAROLINA AND WENT TO NEVADA "SIMPLY AND SOLELY FOR THE PURPOSE OF
OBTAINING" DIVORCES, INTENDING TO RETURN TO NORTH CAROLINA ON OBTAINING
THEM, THEY NEVER LOST THEIR NORTH CAROLINA DOMICILS NOR ACQUIRED NEW
DOMICILS IN NEVADA.  DOMICIL, THE JURY WAS INSTRUCTED, WAS THAT PLACE
WHERE A PERSON "HAS VOLUNTARILY FIXED HIS ABODE  ...  NOT FOR A MERE
SPECIAL OR TEMPORARY PURPOSE, BUT WITH A PRESENT INTENTION OF MAKING IT
HIS HOME, EITHER PERMANENTLY OR FOR AN INDEFINITE OR UNLIMITED LENGTH
OF TIME." 

THE SCALES OF JUSTICE MUST NOT BE UNFAIRLY WEIGHTED BY A STATE WHEN
FULL FAITH AND CREDIT IS CLAIMED FOR A SISTER-STATE JUDGMENT.  BUT
NORTH CAROLINA HAS NOT SO DEALT WITH THE NEVADA DECREES.  SHE HAS NOT
RAISED UNFAIR BARRIERS TO THEIR RECOGNITION.  NORTH CAROLINA DID NOT
FAIL IN APPRECIATION OR APPLICATION OF FEDERAL STANDARDS OF FULL FAITH
AND CREDIT.  APPROPRIATE WEIGHT WAS GIVEN TO THE FINDING OF DOMICIL IN
THE NEVADA DECREES, AND THAT FINDING WAS ALLOWED TO BE OVERTURNED ONLY
BY RELEVANT STANDARDS OF PROOF.  THERE IS NOTHING TO SUGGEST THAT THE
ISSUE WAS NOT FAIRLY SUBMITTED TO THE JURY AND THAT IT WAS NOT FAIRLY
ASSESSED ON COGENT EVIDENCE. 

STATE COURTS CANNOT AVOID REVIEW BY THIS COURT OF THEIR DISPOSITION
OF A CONSTITUTIONAL CLAIM BY CASTING IT IN THE FORM OF AN UNREVIEWABLE
FINDING OF FACT.  NORRIS V. ALABAMA, 294 U.S. 587, 590.  THIS RECORD IS
BARREN OF SUCH ATTEMPTED EVASION.  WHAT IT SHOWS IS THAT PETITIONERS,
LONG-TIME RESIDENTS OF NORTH CAROLINA, CAME TO NEVADA, WHERE THEY
STAYED IN AN AUTO-COURT FOR TRANSIENTS, FILED SUITS FOR DIVORCE AS SOON
AS THE NEVADA LAW PERMITTED, MARRIED ONE ANOTHER AS SOON AS THE
DIVORCES WERE OBTAINED, AND PROMPTLY RETURNED TO NORTH CAROLINA TO
LIVE.  IT CANNOT REASONABLY BE CLAIMED THAT ONE SET OF INFERENCES
RATHER THAN ANOTHER REGARDING THE ACQUISITION BY PETITIONERS OF NEW
DOMICILS IN NEVADA COULD NOT BE DRAWN FROM THE CIRCUMSTANCES ATTENDING
THEIR NEVADA DIVORCES.  IT WOULD BE HIGHLY UNREASONABLE TO ASSERT THAT
A JURY COULD NOT REASONABLY FIND THAT THE EVIDENCE DEMONSTRATED THAT
PETITIONERS WENT TO NEVADA SOLELY FOR THE PURPOSE OF OBTAINING A
DIVORCE AND INTENDED ALL ALONG TO RETURN TO NORTH CAROLINA.  SUCH AN
INTENTION, THE TRIAL COURT PROPERLY CHARGED, WOULD PRECLUDE ACQUISITION
OF DOMICILS IN NEVADA.  SEE WILLIAMSON V. OSENTON, 232 U.S. 619.  AND
SO WE CANNOT SAY THAT NORTH CAROLINA WAS NOT ENTITLED TO DRAW THE
INFERENCE THAT PETITIONERS NEVER ABANDONED THEIR DOMICILS IN NORTH
CAROLINA, PARTICULARLY SINCE WE COULD NOT CONSCIENTIOUSLY PREFER, WERE
IT OUR BUSINESS TO DO SO, THE CONTRARY FINDING OF THE NEVADA COURT. 

IF A STATE CANNOT FORECLOSE, ON REVIEW HERE, ALL THE OTHER STATES BY
ITS FINDING THAT ONE SPOUSE IS DOMICILED WITHIN ITS BOUNDS, PERSONS
MAY, NO DOUBT, PLACE THEMSELVES IN SITUATIONS THAT CREATE UNHAPPY
CONSEQUENCES FOR THEM.  THIS IS MERELY ONE OF THOSE UNTOWARD RESULTS
INEVITABLE IN A FEDERAL SYSTEM IN WHICH REGULATION OF DOMESTIC
RELATIONS HAS BEEN LEFT WITH THE STATES AND NOT GIVEN TO THE NATIONAL
AUTHORITY.  BUT THE OCCASIONAL DISREGARD BY ANY ONE STATE OF THE
RECIPROCAL OBLIGATIONS OF THE FORTY-EIGHT STATES TO RESPECT THE
CONSTITUTIONAL POWER OF EACH TO DEAL WITH DOMESTIC RELATIONS OF THOSE
DOMICILED WITHIN ITS BORDERS IS HARDLY AN ARGUMENT FOR ALLOWING ONE
STATE TO DEPRIVE THE OTHER FORTY-SEVEN STATES OF THEIR CONSTITUTIONAL
RIGHTS.  RELEVANT STATISTICS HAPPILY DO NOT JUSTIFY LURID FOREBODINGS
THAT PARENTS WITHOUT NUMBER WILL DISREGARD THE FATE OF THEIR OFFSPRING
BY BEING UNMINDFUL OF THE STATUS OF DIGNITY TO WHICH THEY ARE
ENTITLED.  BUT, IN ANY EVENT, TO THE EXTENT THAT SOME ONE STATE MAY,
FOR CONSIDERATIONS OF ITS OWN, IMPROPERLY INTRUDE INTO DOMESTIC
RELATIONS SUBJECT TO THE AUTHORITY OF THE OTHER STATES, IT SUFFICES TO
SUGGEST THAT ANY SUCH INDIFFERENCE BY A STATE TO THE BOND OF THE UNION
SHOULD BE DISCOURAGED, NOT ENCOURAGED. 

IN SEEKING A DECREE OF DIVORCE OUTSIDE THE STATE IN WHICH HE HAS
THERETOFORE MAINTAINED HIS MARRIAGE, A PERSON IS NECESSARILY INVOLVED
IN THE LEGAL SITUATION CREATED BY OUR FEDERAL SYSTEM WHEREBY ONE STATE
CAN GRANT A DIVORCE OF VALIDITY IN OTHER STATES ONLY IF THE APPLICANT
HAS A BONA FIDE DOMICIL IN THE STATE OF THE COURT PURPORTING TO
DISSOLVE A PRIOR LEGAL MARRIAGE.  THE PETITIONERS THEREFORE ASSUMED THE
RISK THAT THIS COURT WOULD FIND THAT NORTH CAROLINA JUSTIFIABLY
CONCLUDED THAT THEY HAD NOT BEEN DOMICILED IN NEVADA.  SINCE THE
DIVORCES WHICH THEY SOUGHT AND RECEIVED IN NEVADA HAD NO LEGAL VALIDITY
IN NORTH CAROLINA AND THEIR NORTH CAROLINA SPOUSES WERE STILL ALIVE,
THEY SUBJECTED THEMSELVES TO PROSECUTION FOR BIGAMOUS COHABITATION
UNDER NORTH CAROLINA LAW.  THE LEGITIMATE FINDING OF THE NORTH CAROLINA
SUPREME COURT THAT THE PETITIONERS WERE NOT IN TRUTH DOMICILED IN
NEVADA WAS NOT A CONTINGENCY AGAINST WHICH THE PETITIONERS WERE
PROTECTED BY ANYTHING IN THE CONSTITUTION OF THE UNITED STATES.  A
MAN'S FATE OFTEN DEPENDS, AS FOR INSTANCE IN THE ENFORCEMENT OF THE
SHERMAN LAW, ON FAR GREATER RISKS THAT HE WILL ESTIMATE "RIGHTLY, THAT
IS, AS THE JURY SUBSEQUENTLY ESTIMATES IT, SOME MATTER OF DEGREE.  IF
HIS JUDGMENT IS WRONG, NOT ONLY MAY HE INCUR A FINE OR A SHORT
IMPRISONMENT, AS HERE; HE MAY INCUR THE PENALTY OF DEATH."  NASH V.
UNITED STATES, 229 U.S. 373, 377.  THE OBJECTION THAT PUNISHMENT OF A
PERSON FOR AN ACT AS A CRIME WHEN IGNORANT OF THE FACTS MAKING IT SO,
INVOLVES A DENIAL OF DUE PROCESS OF LAW HAS MORE THAN ONCE BEEN
OVERRULED.  IN VINDICATING ITS PUBLIC POLICY AND PARTICULARLY ONE SO
IMPORTANT AS THAT BEARING UPON THE INTEGRITY OF FAMILY LIFE, A STATE IN
PUNISHING PARTICULAR ACTS MAY PROVIDE THAT "HE WHO SHALL DO THEM SHALL
DO THEM AT HIS PERIL AND WILL NOT BE HEARD TO PLEAD IN DEFENSE GOOD
FAITH OR IGNORANCE."  UNITED STATES V. BALINT, 258 U.S. 250, 252,
QUOTING SHEVLIN-CARPENTER CO. V. MINNESOTA, 218 U.S. 57, 69-70. 
MISTAKEN NOTIONS ABOUT ONE'S LEGAL RIGHTS ARE NOT SUFFICIENT TO BAR
PROSECUTION FOR CRIME. 

WE CONCLUDE THAT NORTH CAROLINA WAS NOT REQUIRED TO YIELD HER STATE
POLICY BECAUSE A NEVADA COURT FOUND THAT PETITIONERS WERE DOMICILED IN
NEVADA WHEN IT GRANTED THEM DECREES OF DIVORCE.  NORTH CAROLINA WAS
ENTITLED TO FIND, AS SHE DID, THAT THEY DID NOT ACQUIRE DOMICILS IN
NEVADA AND THAT THE NEVADA COURT WAS THEREFORE WITHOUT POWER TO
LIBERATE THE PETITIONERS FROM AMENABILITY TO THE LAWS OF NORTH CAROLINA
GOVERNING DOMESTIC RELATIONS.  AND, AS WAS SAID IN CONNECTION WITH
ANOTHER ASPECT OF THE FULL FAITH AND CREDIT CLAUSE, OUR CONCLUSION "IS
NOT A MATTER TO AROUSE THE SUSCEPTIBILITIES OF THE STATES, ALL OF WHICH
ARE EQUALLY CONCERNED IN THE QUESTION AND EQUALLY ON BOTH SIDES." 
FAUNTLEROY V. LUM, 210 U.S. 230, 238. 

AS FOR THE SUGGESTION THAT WILLIAMS V. NORTH CAROLINA, SUPRA,
FORECLOSED THE SUPREME COURT OF NORTH CAROLINA FROM ORDERING A SECOND
TRIAL UPON THE ISSUE OF DOMICIL, IT SUFFICES TO REFER TO OUR OPINION IN
THE EARLIER CASE.  AFFIRMED. 

FN1  THE PROSECUTION WAS UNDER SEC. 14-183 OF THE GENERAL STATUTES OF
NORTH CAROLINA (1943): "IF ANY PERSON, BEING MARRIED, SHALL CONTRACT A
MARRIAGE WITH ANY OTHER PERSON OUTSIDE OF THIS STATE, WHICH MARRIAGE
WOULD BE PUNISHABLE AS BIGAMOUS IF CONTRACTED WITHIN THIS STATE, AND
SHALL THEREAFTER COHABIT WITH SUCH PERSON IN THIS STATE, HE SHALL BE
GUILTY OF A FELONY AND SHALL BE PUNISHED AS IN CASES OF BIGAMY. 
NOTHING CONTAINED IN THIS SECTION SHALL EXTEND  ...  TO ANY PERSON WHO
AT THE TIME OF SUCH SECOND MARRIAGE SHALL HAVE BEEN LAWFULLY DIVORCED
FROM THE BOND OF THE FIRST MARRIAGE  ..." 

FN2  "FULL FAITH AND CREDIT SHALL BE GIVEN IN EACH STATE TO THE
PUBLIC ACTS, RECORDS, AND JUDICIAL PROCEEDINGS OF EVERY OTHER STATE." 

FN3  IT IS INTERESTING TO NOTE THAT THIS MORE CRITICAL ANALYSIS BY
MR. JUSTICE STORY OF THE NATURE OF THE FULL FAITH AND CREDIT CLAUSE
FIRST APPEARED IN 1833, TWENTY YEARS AFTER HIS LOOSE CHARACTERIZATION
IN MILLS V. DURYEE, SUPRA.  3 STORY, COMMENTARIES ON THE CONSTITUTION
(1ST ED., 1833) P. 183. 

FN4  "THERE IS SCARCELY ANY DOCTRINE OF THE LAW WHICH, SO FAR AS
RESPECTS FORMAL AND EXACT STATEMENT, IS IN A MORE UNREDUCED AND
UNCERTAIN CONDITION THAN THAT WHICH RELATES TO THE QUESTION WHAT FORCE
AND EFFECT SHOULD BE GIVEN BY THE COURTS OF ONE NATION TO THE JUDGMENTS
RENDERED BY THE COURTS OF ANOTHER NATION."  JAMES C. CARTER AND ELIHU
ROOT, APPELLANTS' BRIEF, P. 49, IN HILTON V. GUYOT, 159 U.S. 113.  SEE,
AS TO "COMITY," LOUCKS V. STANDARD OIL CO., 224 N.Y. 99, 120 N.E. 198. 

FN5  THE REACH OF CONGRESSIONAL POWER GIVEN BY ART. IV, SEC. 1 IS NOT
BEFORE US.  SEE JACKSON, FULL FAITH AND CREDIT - THE LAWYER'S CLAUSE OF
THE CONSTITUTION (1945) 45 COL. L. REV. 1, 21-24; COOK, LOGICAL AND
LEGAL BASES OF CONFLICT OF LAWS (1942) 98 ET SEQ. 

FN6  WE HAVE NOT HERE A SITUATION WHERE A STATE DISREGARDS THE
ADJUDICATION OF ANOTHER STATE ON THE ISSUE OF DOMICIL SQUARELY
LITIGATED IN A TRULY ADVERSARY PROCEEDING. 

FN7  SINCE AN APPEAL TO THE FULL FAITH AND CREDIT CLAUSE RAISES
QUESTIONS ARISING UNDER THE CONSTITUTION OF THE UNITED STATES, THE
PROPER CRITERIA FOR ASCERTAINING DOMICIL, SHOULD THESE BE IN DISPUTE,
BECOME MATTERS FOR FEDERAL DETERMINATION.  SEE HINDERLIDER V. LA PLATA
CO., 304 U.S. 92, 110. 

FN8  AS TO PETITIONER HENDRIX THESE INCLUDED THE PLEADINGS, EVIDENCE
AND DECREE.  AS TO PETITIONER WILLIAMS ESSENTIALLY THE SAME EVIDENCE
WITH RESPECT TO HIS DOMICIL IS IN THE RECORD FROM WITNESSES IN THIS
CASE.  IT SHOWS WHEN WILLIAMS LEFT NORTH CAROLINA, WHEN HE ARRIVED IN
NEVADA, THE PROMPT FILING OF HIS DIVORCE SUIT (NEVADA REQUIRES SIX
WEEKS' RESIDENCE PRIOR TO FILING A SUIT FOR DIVORCE), MARRIAGE TO
PETITIONER HENDRIX IMMEDIATELY AFTER PETITIONERS WERE DIVORCED, AND HIS
PROMPT RETURN TO NORTH CAROLINA.  ALL OF THIS BEARS ON ABANDONMENT OF
THE NORTH CAROLINA DOMICIL AND THE INTENT TO REMAIN INDEFINITELY
ELSEWHERE. 

MR. JUSTICE MURPHY, CONCURRING. 

WHILE I JOIN IN THE OPINION OF THE COURT, CERTAIN CONSIDERATIONS
COMPEL ME TO STATE MORE FULLY MY VIEWS ON THE IMPORTANT ISSUES
PRESENTED BY THIS CASE. 

THE STATE OF NEVADA HAS UNQUESTIONED AUTHORITY, CONSISTENT WITH
PROCEDURAL DUE PROCESS, TO GRANT DIVORCES ON WHATEVER BASIS IT SEES FIT
TO ALL WHO MEET ITS STATUTORY REQUIREMENTS.  IT IS ENTITLED, MOREOVER,
TO GIVE TO ITS DIVORCE DECREES ABSOLUTE AND BINDING FINALITY WITHIN THE
CONFINES OF ITS BORDERS. 

BUT IF NEVADA'S DIVORCE DECREES ARE TO BE ACCORDED FULL FAITH AND
CREDIT IN THE COURTS OF HER SISTER STATES IT IS ESSENTIAL THAT NEVADA
HAVE PROPER JURISDICTION OVER THE DIVORCE PROCEEDINGS.  THIS MEANS THAT
AT LEAST ONE OF THE PARTIES TO EACH EX PARTE PROCEEDING MUST HAVE A
BONA FIDE DOMICIL WITHIN NEVADA FOR WHATEVER LENGTH OF TIME NEVADA MAY
PRESCRIBE. 

THIS ELEMENTARY PRINCIPLE HAS BEEN REITERATED BY THIS COURT MANY
TIMES.  IN BELL V. BELL, 181 U.S. 175, THIS COURT HELD THAT "BECAUSE
NEITHER PARTY HAD A DOMICIL IN PENNSYLVANIA" THE PENNSYLVANIA COURT HAD
NO JURISDICTION TO GRANT A DIVORCE AND ITS DECREE "WAS ENTITLED TO NO
FAITH AND CREDIT IN NEW YORK OR IN ANY OTHER STATE."  THE SAME RULE WAS
APPLIED IN THE COMPANION CASE OF STREITWOLF V. STREITWOLF, 181 U.S.
179.  REFERRING TO THESE TWO PRIOR CASES AS HOLDING THAT "DOMICIL WAS
IN ANY EVENT THE INHERENT ELEMENT UPON WHICH THE JURISDICTION MUST
REST," THE COURT IN ANDREWS V. ANDREWS, 188 U.S. 14, REPEATED THAT BONA
FIDE DOMICIL IN A STATE IS "ESSENTIAL TO GIVE JURISDICTION TO THE
COURTS OF SUCH STATE TO RENDER A DECREE OF DIVORCE WHICH WOULD HAVE
EXTRA-TERRITORIAL EFFECT."  THE ANDREWS CASE MADE IT CLEAR, MOREOVER,
THAT THIS REQUIREMENT OF DOMICIL IS NOT MERELY A MATTER OF STATE LAW. 
IT WAS STATED SPECIFICALLY THAT "WITHOUT REFERENCE TO THE STATUTE OF
SOUTH DAKOTA AND IN ANY EVENT" DOMICIL IN SOUTH DAKOTA WAS NECESSARY. 
188 U.S. AT 41.  ALL OF THE OPINIONS IN HADDOCK V. HADDOCK, 201 U.S.
562, RECOGNIZED THIS PRINCIPLE, WITH MR. JUSTICE BROWN'S DISSENTING
OPINION STATING THAT "THE COURTS OF ONE STATE MAY NOT GRANT A DIVORCE
AGAINST AN ABSENT DEFENDANT TO ANY PERSON WHO HAS NOT ACQUIRED A BONA
FIDE DOMICIL IN THAT STATE."  FINALLY, IN WILLIAMS V. NORTH CAROLINA,
317 U.S. 287, THE COURT ACKNOWLEDGED THAT THE PLAINTIFF'S DOMICIL IN A
STATE "IS RECOGNIZED IN THE HADDOCK CASE AND ELSEWHERE (BEALE, CONFLICT
OF LAWS, SEC. 110.1) AS ESSENTIAL IN ORDER TO GIVE THE COURT
JURISDICTION WHICH WILL ENTITLE THE DIVORCE DECREE TO EXTRATERRITORIAL
EFFECT, AT LEAST WHEN THE DEFENDANT HAS NEITHER BEEN PERSONALLY SERVED
NOR ENTERED AN APPEARANCE."  SEE ALSO ATHERTON V. ATHERTON, 181 U.S.
155. 

THE JURY HAS HERE FOUND THAT THE PETITIONER'S ALLEGED DOMICIL IN
NEVADA WAS NOT A BONA FIDE ONE, WHICH IN COMMON AND LEGAL PARLANCE
MEANS THAT IT WAS ACQUIRED FRAUDULENTLY, DECEITFULLY OR IN BAD FAITH. 
THIS MEANS, IN OTHER WORDS, THAT THE JURY FOUND THAT THE PETITIONERS'
RESIDENCE IN NEVADA FOR SIX WEEKS WAS NOT ACCOMPANIED BY A BONA FIDE
INTENTION TO MAKE NEVADA THEIR HOME AND TO REMAIN THERE PERMANENTLY OR
AT LEAST FOR AN INDEFINITE TIME, AS REQUIRED EVEN BY NEVADA LAW.  LAMB
V. LAMB, 57 NEV. 421, 430, 65 P.2D 872.  THIS CONCLUSION IS SUPPORTED
BY OVERWHELMING EVIDENCE SATISFYING WHATEVER STANDARD OF PROOF MAY BE
PROPOUNDED.  UNDER THESE CIRCUMSTANCES THERE IS NO REASON TO DOUBT THE
EFFICACY OF JURY TRIALS IN RELATION TO THE QUESTION OF DOMICIL OR TO
SPECULATE AS TO WHETHER ANOTHER JURY MIGHT HAVE REACHED A DIFFERENT
VERDICT ON THE SAME SET OF FACTS. 

THUS THE COURT BELOW PROPERLY CONCLUDED THAT NEVADA WAS WITHOUT
JURISDICTION SO AS TO GIVE EXTRATERRITORIAL VALIDITY TO THE DIVORCE
DECREES AND THAT NORTH CAROLINA WAS NOT COMPELLED BY THE CONSTITUTION
TO GIVE FULL FAITH AND CREDIT TO THE NEVADA DECREES.  NORTH CAROLINA
WAS FREE TO CONSIDER THE ORIGINAL MARRIAGES STILL IN EFFECT, THE NEVADA
DIVORCES TO BE INVALID, AND THE NEVADA MARRIAGE TO BE BIGAMOUS, THUS
GIVING THE NEVADA MARRIAGE THE SAME FORCE AND EFFECT THAT NEVADA
PRESUMABLY WOULD HAVE GIVEN IT HAD NEVADA CONSIDERED THE ORIGINAL
MARRIAGES STILL OUTSTANDING.  CF. STATE V. ZICHFELD, 23 NEV. 304, 46 P.
802. 

BY BEING DOMICILED AND LIVING IN NORTH CAROLINA, PETITIONERS SECURED
ALL THE BENEFITS AND ADVANTAGES OF ITS GOVERNMENT AND PARTICIPATED IN
ITS SOCIAL AND ECONOMIC LIFE.  AS LONG AS PETITIONERS AND THEIR
RESPECTIVE SPOUSES LIVED THERE AND RETAINED THAT DOMICIL, NORTH
CAROLINA HAD THE EXCLUSIVE RIGHT TO REGULATE THE DISSOLUTION OF THEIR
MARRIAGE RELATIONSHIPS.  HOWEVER HARSH AND UNJUST NORTH CAROLINA'S
DIVORCE LAWS MAY BE THOUGHT TO BE, PETITIONERS WERE BOUND TO OBEY THEM
WHILE RETAINING RESIDENTIAL AND DOMICILIARY TIES IN THAT STATE. 

NO JUSTIFIABLE PURPOSE IS SERVED BY IMPARTING CONSTITUTIONAL SANCTITY
TO THE EFFORTS OF PETITIONERS TO ESTABLISH A FALSE AND FICTITIOUS
DOMICIL IN NEVADA.  SUCH A RESULT WOULD ONLY TEND TO PROMOTE WHOLESALE
DISREGARD OF NORTH CAROLINA'S DIVORCE LAWS BY ITS CITIZENS, THUS
PUTTING AN END TO "THE EXISTENCE OF ALL EFFICACIOUS POWER ON THE
SUBJECT OF DIVORCE."  ANDREWS V. ANDREWS, SUPRA, 32.  CERTAINLY NO
POLICY OF NEVADA DICTATES LENDING THE FULL FAITH AND CREDIT CLAUSE TO
PROTECT ACTIONS GROUNDED IN DECEIT.  NEVADA HAS A RECOGNIZABLE INTEREST
IN GRANTING ONLY TWO TYPES OF EX PARTE DIVORCES:  (A) THOSE EFFECTIVE
SOLELY WITHIN THE BORDERS OF NEVADA, AND (B) THOSE EFFECTIVE EVERYWHERE
ON THE GROUND THAT AT LEAST ONE OF THE PARTIES HAD A BONA FIDE DOMICIL
IN THE STATE AT THE TIME THE DECREE WAS GRANTED.  NEITHER TYPE OF
DIVORCE IS INVOLVED HERE.  AND NEVADA HAS NO INTEREST THAT WE CAN
RESPECT IN ISSUING DIVORCE DECREES WITH EXTRATERRITORIAL EFFECT TO
THOSE WHO ARE DOMICILED ELSEWHERE AND WHO SECURE SHAM DOMICILS IN
NEVADA SOLELY FOR DIVORCE PURPOSES. 

THERE ARE NO STARTLING OR DANGEROUS IMPLICATIONS IN THE JUDGMENT
REACHED BY THE COURT IN THIS CASE.  ALL OF THE UNCONTESTED DIVORCES
THAT HAVE EVER BEEN GRANTED IN THE FORTY-EIGHT STATES ARE AS SECURE
TODAY AS THEY WERE YESTERDAY OR AS THEY WERE BEFORE OUR PREVIOUS
DECISION IN THIS CASE.  THOSE BASED UPON FRAUDULENT DOMICILS ARE NOW
AND ALWAYS HAVE BEEN SUBJECT TO LATER REEXAMINATION WITH POSSIBLE
SERIOUS CONSEQUENCES. 

WHATEVER EMBARRASSMENT OR INCONVENIENCE RESULTING TO THOSE WHO HAVE
MADE PROPERTY SETTLEMENTS, CONTRACTED NEW MARRIAGES OR OTHERWISE ACTED
IN RELIANCE UPON DIVORCE DECREES OBTAINED UNDER CONDITIONS FOUND TO
EXIST IN THIS CASE IS NOT INSURMOUNTABLE.  THE STATES HAVE ADEQUATE
POWER, IF THEY DESIRE TO EXERCISE IT, TO ENACT LEGISLATION PROVIDING
FOR MEANS OF VALIDATING ANY SUCH PROPERTY SETTLEMENTS OR MARRIAGES OR
OF RELIEVING PERSONS FROM OTHER UNFORTUNATE CONSEQUENCES. 

NOR ARE ANY ISSUES OF CIVIL LIBERTIES AT STAKE HERE.  IT IS
UNFORTUNATE THAT THE PETITIONERS MUST BE IMPRISONED FOR ACTS WHICH THEY
PROBABLY COMMITTED IN RELIANCE UPON ADVICE OF COUNSEL AND WITHOUT
INTENT TO VIOLATE THE NORTH CAROLINA STATUTE.  BUT THERE ARE MANY
INSTANCES OF PUNISHMENT FOR ACTS WHOSE CRIMINALITY WAS UNSUSPECTED AT
THE TIME OF THEIR OCCURRENCE.  INDEED, FOR NEARLY THREE-QUARTERS OF A
CENTURY OR MORE INDIVIDUALS HAVE BEEN PUNISHED UNDER BIGAMY STATUTES
FOR DOING EXACTLY WHAT PETITIONERS HAVE DONE.  PEOPLE V. DAWELL, 25
MICH. 247; STATE V. ARMINGTON, 25 MINN. 29, 56 S.E. 673; PEOPLE V.
BAKER, 76 N.Y. 78; STATE V. WESTMORELAND, 76 S.C. 145.  PETITIONERS
ESPECIALLY MUST BE DEEMED TO HAVE BEEN AWARE OF THE POSSIBLE CRIMINAL
CONSEQUENCES OF THEIR ACTIONS IN VIEW OF THE PREVIOUSLY SETTLED NORTH
CAROLINA LAW ON THE MATTER.  STATE V. HERRON, 175 N.C. 754, 94 S.E.
698.  THIS CASE, THEN, ADDS NO NEW UNCERTAINTY AND COMES AS NO SURPRISE
FOR THOSE WHO ACT FRAUDULENTLY IN ESTABLISHING A DOMICIL AND WHO
DISREGARD THE LAWS OF THEIR TRUE DOMICILIARY STATES. 

AS MR. JUSTICE HOLMES SAID IN HIS DISSENTING OPINION IN THE HADDOCK
CASE, 201 U.S. AT 628, "I DO NOT SUPPOSE THAT CIVILIZATION WILL COME TO
AN END WHICHEVER WAY THIS CASE IS DECIDED."  DIFFICULT PROBLEMS
INEVITABLY ARISE FROM THE FACT THAT PEOPLE MOVE ABOUT FREELY AMONG THE
FORTY-EIGHT STATES, EACH OF WHICH HAS ITS OWN POLICIES AND LAWS.  UNTIL
THE FEDERAL GOVERNMENT IS EMPOWERED BY THE CONSTITUTION TO DEAL
UNIFORMLY WITH THE DIVORCE PROBLEM OR UNTIL UNIFORM STATE LAWS ARE
ADOPTED, IT IS ESSENTIAL THAT DEFINITE LINES OF DEMARCATION BE MADE AS
REGARDS THE SCOPE AND EXTENT OF THE VARYING STATE PRACTICES.  SEE 91
CONG. REC. 4238-4241(MAY 3, 1945).  THIS CASE ILLUSTRATES THE DRAWING
OF ONE SUCH LINE, A LINE THAT HAS BEEN DRAWN MANY TIMES BEFORE WITHOUT
TOO UNFORTUNATE DISLOCATIONS RESULTING AMONG THOSE CITIZENS OF A
DIVORCED STATUS.  THERE IS NO REASON TO BELIEVE THAT ANY DIFFERENT OR
MORE SERIOUS CONSEQUENCES WILL RESULT FROM RETRACING THAT LINE TODAY. 

THE CHIEF JUSTICE AND MR. JUSTICE JACKSON JOIN IN THESE VIEWS. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

ONCE AGAIN THE GHOST OF "UNITARY DOMICIL" RETURNS ON ITS PERPETUAL
ROUND, IN THE GUISE OF "JURISDICTIONAL FACT," TO UPSET JUDGMENTS,
MARRIAGES, DIVORCES, UNDERMINE THE RELATIONS FOUNDED UPON THEM, AND
MAKE THIS COURT THE UNWILLING AND UNCERTAIN ARBITER BETWEEN THE
CONCEDEDLY VALID LAWS AND DECREES OF SISTER STATES.  FROM BELL AND
ANDREWS TO DAVIS TO HADDOCK TO WILLIAMS AND NOW BACK TO HADDOCK AND
DAVIS THROUGH WILLIAMS AGAIN  FN1  - IS THE MAZE THE COURT HAS
TRAVELLED IN A DOMICILIARY WILDERNESS, ONLY TO COME OUT WITH NO SETTLED
CONSTITUTIONAL POLICY WHERE ONE IS NEEDED MOST. 

NEVADA'S JUDGMENT HAS NOT BEEN VOIDED.  IT COULD NOT BE, IF THE SAME
TEST APPLIES TO SUSTAIN IT AS UPHOLDS THE NORTH CAROLINA CONVICTIONS. 
FN2  IT STANDS, WITH THE MARRIAGES FOUNDED UPON IT, UNIMPEACHED.  FOR
ALL THAT HAS BEEN DETERMINED OR COULD BE, UNLESS ANOTHER CHANGE IS IN
THE MAKING, PETITIONERS ARE LAWFUL HUSBAND AND WIFE IN NEVADA. 
WILLIAMS V. NORTH CAROLINA I, 317 U.S. 287; WILLIAMS V. NORTH CAROLINA
II, ANTE, P. 226.  THEY MAY BE SUCH EVERYWHERE OUTSIDE NORTH CAROLINA. 
LAWFULLY WEDDED ALSO, IN NORTH CAROLINA, ARE THE DIVORCED SPOUSE OF ONE
AND HIS WIFE, TAKEN FOR ALL WE KNOW IN RELIANCE UPON THE NEVADA
DECREE.  FN3  THAT IS, UNLESS ANOTHER JURY SHALL FIND THEY TOO ARE
BIGAMISTS FOR THEIR RELIANCE.  NO SUCH JURY HAS BEEN IMPANELLED.  BUT
WERE ONE CALLED, IT COULD PRONOUNCE THE NEVADA DECREE VALID UPON THE
IDENTICAL EVIDENCE FROM WHICH THE JURY IN THIS CASE DREW THE CONTRARY
CONCLUSION.  THAT JURY OR IT AND ANOTHER, IF PETITIONERS HAD BEEN TRIED
SEPARATELY, COULD HAVE FOUND ONE GUILTY, THE OTHER INNOCENT, UPON THAT
EVIDENCE UNVARIED BY A HAIR.  AND, BY THE COURT'S TEST, WE COULD DO
NOTHING BUT SUSTAIN THE CONTRADICTORY FINDINGS IN ALL THESE CASES. 

I DO NOT BELIEVE THE CONSTITUTION HAS THUS CONFIDED TO THE CAPRICE OF
JURIES THE FAITH AND CREDIT DUE THE LAWS AND JUDGMENTS OF SISTER
STATES.  NOR HAS IT THUS MADE THAT QUESTION A LOCAL MATTER FOR THE
STATES THEMSELVES TO DECIDE.  WERE ALL JUDGMENTS GIVEN THE SAME
INFIRMITY, THE FULL FAITH AND CREDIT CLAUSE WOULD BE ONLY A DEAD
CONSTITUTIONAL LETTER. 

I AGREE IT IS NOT THE COURT'S BUSINESS TO DETERMINE POLICIES OF
DIVORCE.  BUT PRECISELY ITS FUNCTION IS TO LAY THE JURISDICTIONAL
FOUNDATIONS UPON WHICH THE STATES' DETERMINATIONS CAN BE MADE
EFFECTIVE, WITHIN AND WITHOUT THEIR BORDERS.  FOR IN THE ONE CASE DUE
PROCESS, IN THE OTHER FULL FAITH AND CREDIT, COMMANDS OF EQUAL
COMPULSION UPON THE STATES AND UPON US, IMPOSE THAT DUTY. 

I DO NOT THINK WE PERFORM IT, WE RATHER ABDICATE, WHEN WE CONFIDE THE
ULTIMATE DECISION TO THE STATES OR TO THEIR JURIES.  THIS WE DO WHEN,
FOR EVERY CASE THAT MATTERS, WE MAKE THEIR JUDGMENT CONCLUSIVE.  IT IS
SO IN EFFECT WHEN THE CRUCIAL CONCEPT IS AS VARIABLE AND AMORPHOUS AS
"DOMICIL," IS ALWAYS A CONCLUSION OF "ULTIMATE FACT," AND CAN BE
ESTABLISHED ONLY BY PROOF FROM WHICH, AS EXPERIENCE SHOWS,
CONTRADICTORY INFERENCES MAY BE MADE AS STRIKES THE LOCAL TRIER'S
FANCY.  THE ABDICATION ONLY BECOMES MORE OBVIOUSLY EXPLICIT WHEN WE
AVOWEDLY CONFESS THAT THE FAITH AND CREDIT DUE MAY BE DETERMINED EITHER
WAY, WHEREVER "IT CANNOT REASONABLY BE CLAIMED THAT ONE SET OF
INFERENCES RATHER THAN ANOTHER" COULD NOT BE DRAWN CONCERNING THE VERY
MATTER DETERMINED BY THE JUDGMENT; AND THE FINAL CHOICE UPON SUCH A
BALANCE IS LEFT WITH THE LOCAL JURY. 

NO MORE UNSTABLE FOUNDATION, FOR STATE POLICIES OR MARITAL RELATIONS,
COULD BE FORMULATED OR APPLIED.  IN NO REGION OF ADJUDICATION OR
LEGISLATION IS STABILITY MORE ESSENTIAL FOR JURISDICTIONAL
FOUNDATIONS.  BEYOND ABNEGATING OUR FUNCTION, WE MAKE INSTABILITY
ITSELF THE CONSTITUTIONAL POLICY WHEN THE CRUX IS SO CONCEIVED AND
PIVOTED. 

                                   I 

WHAT, EXACTLY, ARE THE EFFECTS OF THE DECISION?  THE COURT IS CAREFUL
NOT TO SAY THAT NEVADA'S JUDGMENT IS NOT VALID IN NEVADA.  TO REPEAT,
THE COURT COULD NOT SO DECLARE IT, UNLESS A DIFFERENT TEST APPLIES TO
SUSTAIN THAT JUDGMENT THAN SUPPORTS NORTH CAROLINA'S.  PRESUMABLY THE
SAME STANDARD APPLIES TO BOTH; AND EACH STATE ACCORDINGLY IS FREE TO
FOLLOW ITS OWN POLICY, WHEREVER THE EVIDENCE, WHETHER THE SAME OR
DIFFERENT, PERMITS CONFLICTING INFERENCES OF DOMICIL, AS IT ALWAYS DOES
WHEN THE QUESTION BECOMES IMPORTANT.  FN4 

THIS MUST BE TRUE UNLESS, CONTRARY TO THE DISCLAIMER, THIS COURT
ITSELF IS "TO RETRY THE FACTS."  THE COURT NO MORE COULD SAY THAT THE
NEVADA EVIDENCE PERMITTED NO CONCLUSION OF DOMICIL THERE THAN IT NOW
CAN SAY THE NORTH CAROLINA EVIDENCE WOULD NOT ALLOW A FINDING EITHER
WAY.  THIS APPARENTLY IS CONCEDED.  THE PROOF WAS NOT IDENTICAL.  BUT
IT WAS NOT SO ONE-SIDED IN EITHER CASE THAT ONLY ONE CONCLUSION WAS
COMPELLED.  THE EVIDENCE IN NEVADA WAS NEITHER THAT STRONG NOR THAT
WEAK.  FN5 SELDOM, IF EVER, IS IT SO. 

THE NECESSARY CONCLUSION FOLLOWS THAT THE NEVADA DECREE WAS VALID AND
REMAINS VALID WITHIN HER BORDERS.  SO THE MARRIAGE IS GOOD IN NEVADA,
BUT VOID IN NORTH CAROLINA, JUST AS IT WAS BEFORE "THE JURISDICTIONAL
REQUIREMENT OF DOMICIL (WAS) FREED FROM CONFUSING REFINEMENTS ABOUT
'MATRIMONIAL DOMICIL,' SEE DAVIS V. DAVIS, 305 U.S. 32, 41, AND THE
LIKE."  SEE ALSO HADDOCK V. HADDOCK, 201 U.S. 562. 

THE CHARACTERIZATION "IN REM" HAS BEEN DROPPED.  BUT IT IS CLEAR FROM
THE RESULT AND FROM THE OPINION THAT THE MORE "CONFUSING REFINEMENTS"
AND CONSEQUENCES, INCLUDING THE ANOMALOUS STATUS HADDOCK APPROVED, HAVE
NOT COMPLETELY DISAPPEARED.  WE ARE NOT TOLD DEFINITELY WHETHER
NEVADA'S ADJUDICATION OR NORTH CAROLINA'S MUST BE RESPECTED, WHEN THE
QUESTION IS RAISED IN SOME ONE OF THE OTHER FORTY-SIX STATES.  BUT ONE
THING WE DO KNOW.  "THE STATE OF DOMICILIARY ORIGIN SHOULD NOT BE BOUND
BY AN UNFOUNDED, EVEN IF NOT COLLUSIVE, RECITAL IN THE RECORD OF A
COURT OF ANOTHER STATE."  THE OPINION GOES ON TO REPEAT:  "IF A FINDING
BY THE COURT OF ONE STATE THAT DOMICIL IN ANOTHER STATE HAS BEEN
ABANDONED WERE CONCLUSIVE UPON THE OLD DOMICILIARY STATE, THE POLICY OF
EACH STATE IN MATTERS OF MOST INTIMATE CONCERN COULD BE SUBVERTED BY
THE POLICY OF EVERY OTHER STATE." 

THE QUESTION IS NOT SIMPLY PERTINENT, IT IS IMPERATIVE, WHETHER
"MATRIMONIAL DOMICIL" HAS NOT MERELY BEEN RECAST AND RETURNED TO THE
PLAY UNDER THE COMMON LAW'S MORE ANCIENT NAME OF "DOMICIL OF ORIGIN." 
FOR NORTH CAROLINA IS THE ONLY STATE WHICH, UPON THE FACTS, CONCEIVABLY
COULD QUALIFY EITHER AS "MATRIMONIAL DOMICIL" OR AS "DOMICIL OF
ORIGIN," WHETHER OR NOT THEY DIFFER.  UNDER THE FORMER CONCEPTION IT
WAS AT LEAST DOUBTFUL WHETHER SHEER REEXAMINATION OF "THE
JURISDICTIONAL FACT" PREVIOUSLY DETERMINED COULD BE MADE OUTSIDE THE
STATE GRANTING THE DIVORCE AND THE STATE OF "MATRIMONIAL DOMICIL."  FN6
NOW WE ARE TOLD THE DECREE "MUST BE RESPECTED BY THE OTHER FORTY-SEVEN
STATES PROVIDED - AND IT IS A BIG PROVISO - THE CONDITIONS FOR THE
EXERCISE OF POWER BY THE DIVORCE-DECREEING COURT ARE VALIDLY
ESTABLISHED WHENEVER THAT JUDGMENT IS ELSEWHERE CALLED INTO QUESTION." 
IF THIS MEANS WHAT IT SAYS, THE PROVISO IS BIG.  IT SWALLOWS THE
PROVISION.  UNLESS "MATRIMONIAL DOMICIL," BANISHED IN WILLIAMS I, HAS
RETURNED RENAMED IN WILLIAMS II, EVERY DECREE BECOMES VULNERABLE IN
EVERY STATE.  EVERY DIVORCE, WHEREVER GRANTED, WHETHER UPON A RESIDENCE
OF SIX WEEKS, SIX MONTHS OR SIX YEARS, MAY NOW BE REEXAMINED BY EVERY
OTHER STATE, UPON THE SAME OR DIFFERENT EVIDENCE, TO REDETERMINE THE
"JURISDICTIONAL FACT," ALWAYS THE ULTIMATE CONCLUSION OF "DOMICIL." 
FOR THE GROUNDS OF THE DECISION WHOLLY NEGATE THAT ITS EFFECT CAN BE
LIMITED TO DECREES OF STATES HAVING SO-CALLED "LIBERAL" DIVORCE
POLICIES; OR TO DECREES RECENTLY GRANTED; OR TO CASES WHERE DIFFERENT
EVIDENCE IS PRESENTED.  IT IS IMPLICIT AND INHERENT IN THE "UNITARY
DOMICIL, JURISDICTIONAL-FACT, PERMISSIBLE-INFERENCE" RULE THAT ANY
DECREE, GRANTED AFTER ANY LENGTH OF TIME, UPON ANY GROUND FOR DIVORCE,
AND HOWEVER SOLID THE PROOF, MAY BE REEXAMINED EITHER BY "THE STATE OF
DOMICILIARY ORIGIN" OR BY ANY OTHER STATE, AS THE CASE UNCERTAINLY MAY
BE.  AND ALL THAT IS NEEDED, TO DISREGARD IT, IS SOME EVIDENCE FROM
WHICH A JURY REASONABLY MAY CONCLUDE THERE WAS NO DOMICILIARY INTENT
WHEN THE DECREE WAS RENDERED.  THAT IS, UNLESS THE COURT MEANS TO
RESERVE DECISION UPON THE WEIGHT OF THE EVIDENCE AND THUS "TO RETRY THE
FACTS," CONTRARY TO ITS DECLARED INTENTION, IN SOME CASE OR CASES NOT
DEFINED OR INDICATED. 

                                  II 

OBVIOUSLY MORE IS INVOLVED THAN FULL FAITH AND CREDIT FOR JUDGMENTS
OF OTHER STATES.  BENEATH THE JUDGMENT OF NEVADA LIE HER STATUTORY LAW
AND POLICY.  THESE TOO ARE DENIED RECOGNITION.  THIS IS NOT A CASE IN
WHICH THE DENIAL EXTENDS, OR COULD EXTEND, TO THE JUDGMENT ALONE.  FOR
THE NORTH CAROLINA VERDICT AND JUDGMENT DO NOT PURPORT TO REST ON ANY
FINDING OF FRAUD OR OTHER SIMILAR GROUND, WHEREBY THE PETITIONERS
PROCURED JUDGMENTS FROM THE NEVADA COURTS WHICH THE MANNER OF THEIR
PROCUREMENT VITIATES.  FN7 

NO SUCH ISSUE, IMPEACHING THE NEVADA DECREE, HAS BEEN MADE.  THE
STATE ASKED NO INSTRUCTIONS ON SUCH A THEORY AND NONE WERE GIVEN.  FN8
THE VERDICT AND JUDGMENT THEREFORE HAVE NOT DETERMINED AND DO NOT REST
UPON ANY SUCH GROUND. 

IN VIEW OF THIS FACT I AM COMPLETELY AT LOSS TO UNDERSTAND WHAT IS
MEANT, IN THE CONTEXT OF THIS CASE, BY "AN UNFOUNDED, EVEN IF NOT
COLLUSIVE, RECITAL" WHICH THE STATE OF DOMICILIARY ORIGIN, PERHAPS
OTHERS TOO, IS FREE TO DISREGARD.  THE STATEMENT ITSELF NEGATES
COLLUSION AS A GROUND FOR THE DECISION.  AND, AS I READ THE REMAINDER
OF THE OPINION, IT CONCEDES AND MUST CONCEDE, IF THE TWO JUDGMENTS ARE
TO BE TESTED ALIKE, THAT THE NEVADA DECREE WAS NOT UNFOUNDED.  THE
SHAPE THE ISSUES HAVE TAKEN COMPELS THIS CONCLUSION. 

ACCORDINGLY THE CASE MUST BE CONSIDERED AS SHORN OF ANY ELEMENT OF
FRAUD, DECEIT OR EVASION OF NEVADA'S LAW, OF SHOWING THAT THE NEVADA
COURT WAS IMPOSED UPON IN ANY WAY OR DID OTHER THAN APPLY THE NEVADA
LAW ACCORDING TO ITS TRUE INTENT AND PURPOSE.  IT MUST BE TAKEN ALSO AS
DEVOID OF ANY SHOWING THAT NEVADA FAILED IN ANY WAY TO COMPLY WITH
EVERY REQUIREMENT THIS COURT HAS MADE RESPECTING JURISDICTION OR DUE
PROCESS OF LAW, FOR RENDERING A VALID DIVORCE DECREE.  WILLIAMS V.
NORTH CAROLINA, 317 U.S. 287. 

THE CASE THEREFORE STANDS STRIPPED OF EVERY DIFFERENCE, PRESENTLY
MATERIAL, FROM THE NEVADA PROCEEDINGS SAVE TWO.  THERE WAS NONE,
JURISDICTIONALLY, IN THE ISSUES.  THERE WAS ONLY DIFFERENT EVIDENCE
UPON WHICH THE SAME ISSUE WAS DETERMINED IN OPPOSITE FASHIONS.  AND THE
STATES HAD DIFFERENT POLICIES CONCERNING DIVORCE. 

THE DIFFERENCE IN THE EVIDENCE AFFECTED SOLELY EVENTS TAKING PLACE
AFTER THE NEVADA DECREE, THE RETURN TO NORTH CAROLINA AND THE
COHABITATION THERE.  ORDINARILY, VALID JUDGMENTS ARE NOT OVERTURNED,
SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, OR DISREGARDED UPON SUCH
RETROACTIVE PROOF.  FN9  BUT HERE THIS PROOF WAS NOT TENDERED IN ATTACK
UPON THE NEVADA DECREE.  IT WAS OFFERED AND ADMITTED EXCLUSIVELY TO
RELITIGATE THE SAME ISSUE THAT DECREE HAD DETERMINED, UPON ADEQUATE
EVIDENCE AND IN FULL COMPLIANCE WITH NEVADA LAW AND THE FEDERAL LAW
GIVING NEVADA JURISDICTION TO DETERMINE IT.  WILLIAMS I; WILLIAMS II.
ITS SOLE FUNCTION WAS TO SHOW THAT PETITIONERS DID NOT HAVE THE VERY
INTENT THE NEVADA COURT, WITH EYES NOT BLINDED,  FN10  HAD FOUND THEY
POSSESSED. 

MOREOVER, THE CHARACTER OF THE COURT'S RULING MAKES THE DIFFERENCE IN
THE EVIDENCE, AS IT BORE UPON THE CONTROLLING ISSUE, OF NO
MATERIALITY.  IT IS NOT HELD THAT DENIAL OF CREDIT WILL BE ALLOWED,
ONLY IF THE EVIDENCE IS DIFFERENT OR DEPENDING IN ANY WAY UPON THE
CHARACTER OR THE WEIGHT OF THE DIFFERENCE.  THE TEST IS NOT DIFFERENT
EVIDENCE.  IT IS EVIDENCE, WHETHER THE SAME OR DIFFERENT AND, IF
DIFFERENT, WITHOUT REGARD TO THE QUALITY OF THE DIFFERENCE, FROM WHICH
AN OPPOSING SET OF INFERENCES CAN BE DRAWN BY THE TRIER OF FACT "NOT
UNREASONABLY."  PRESUMABLY THE COURT WILL NOT "RETRY THE FACTS" IN
EITHER CASE. 

BUT IT DOES NOT DEFINE "NOT UNREASONABLY."  IT VAGUELY SUGGESTS A
SUPERVISORY FUNCTION, TO BE EXERCISED WHEN THE DENIAL STRIKES ITS
SENSIBILITIES AS WRONG, BY SOME NOT STATED STANDARD.  SO TO SUSPEND THE
MATTER IS NOT LAW.  IT IS ONLY ADDED UNCERTAINTY. 

IF THE COURT MEANS NOT "TO RETRY THE FACTS," THE SUGGESTION IS WHOLLY
OUT OF PLACE.  THEN THE TEST WILL BE AS IT IS IN OTHER CASES WHERE THE
QUESTION IS WHETHER A JURY'S VERDICT WILL BE SUSTAINED, UPON AN ISSUE
ALLEGING WANT OF SUPPORTING EVIDENCE.  THERE WILL BE NO "WEIGHING." 
THERE WILL BE ONLY EXAMINATION FOR SUFFICIENCY, WITH THE LIMITS MARKED
BY "SCINTILLAS" AND THE LIKE.  FN11 

IF THIS IS THE TEST, FOR ALL PRACTICAL PURPOSES THE COURT MIGHT AS
WELL DECLARE OUTRIGHT THAT STATES OF DOMICILIARY ORIGIN ARE FREE TO
DENY FAITH AND CREDIT TO DIVORCES GRANTED ELSEWHERE.  FOR THE CASE WILL
BE RARE INDEED WHERE, BY THIS STANDARD, "DOMICIL" CAN BE DETERMINED AS
A MATTER OF LAW, WHEN DIVORCE HAS BEEN SECURED AFTER DEPARTURE FROM
SUCH A STATE.  THESE ARE THE ONLY CASES THAT MATTER.  THE ISSUE DOES
NOT ARISE WITH STAY-AT-HOMES.  WITH OTHERS, IT ALWAYS CAN BE RAISED AND
NEARLY ALWAYS WITH "SOME" EVIDENCE, MORE THAN A "SCINTILLA," TO SUSTAIN
BOTH CONTENTIONS. 

BUT IF THE TEST IS DIFFERENT, "WEIGHING" NECESSARILY BECOMES INVOLVED
AND IMPLICITLY IS WHAT HAS BEEN DONE IN THIS CASE, NOTWITHSTANDING THE
DISCLAIMER.  IN THAT EVENT, THE CRUX OF JURISDICTION BECOMES THE
DIFFERENCE IN THE EVIDENCE; IN THIS CASE, THE RETURN TO NORTH CAROLINA
AND COHABITATION THERE. 

IF THIS IS THE DECISION'S INTENDED EFFECT, IT SHOULD BE SQUARELY SO
DECLARED.  TOO MUCH HANGS FOR TOO MANY PEOPLE AND FOR THE STATES
THEMSELVES UPON BECLOUDING IT WITH A "DIFFERENT SET OF INFERENCES -
REFUSAL TO RETRY THE FACTS" GLOSS OR OTHERWISE.  IT CANNOT BE ASSUMED
THAT THE MATTER WILL AFFECT ONLY A FEW.  FOR THIS HAS BECOME A NATION
OF TRANSIENT PEOPLE.  LAWYERS EVERYWHERE ADVISE FOR OR AGAINST DIVORCE
AND COURTS GRANT OR DENY IT, DEPENDING NOT ON THE PROBABILITY THAT THE
CASE WILL COME HERE, BUT ON WHAT IS DONE HERE WITH THE FEW CASES WHICH
DO COME.  THE MATTER IS ALTOGETHER TOO SERIOUS, FOR TOO MANY, FOR
GLOSSING OVER THE CRUCIAL BASIS OF DECISION. 

WHETHER THE ONE TEST OR THE OTHER IS INTENDED, OR PERHAPS STILL
ANOTHER NOT SUGGESTED, NORTH CAROLINA'S ACTION COMES DOWN TO SHEER
DENIAL OF FAITH AND CREDIT TO NEVADA'S LAW AND POLICY, NOT MERELY TO
HER JUDGMENT; AND THE DECISION HERE, TO APPROVAL OF THIS DENIAL.  THE
REAL DIFFERENCE, IN MY OPINION THE ONLY MATERIAL ONE, AS THE ISSUES AND
THE DECISION HAVE BEEN MADE ON THIS RECORD, IS THAT ONE SUIT AND
JUDGMENT TOOK PLACE IN NEVADA, THE OTHER IN NORTH CAROLINA, AND THE TWO
STATES HAVE DIFFERENT POLICIES RELATING TO DIVORCE.  NOR DOES THE
DEGREE OR QUALITY OF THE DIFFERENCE IN POLICIES MATTER.  IT ALSO IS NOT
WEIGHED.  FN12  THE DIFFERENCE MAY BE SMALL FOR ANYTHING THAT IS SAID,
YET THERE IS FREEDOM TO WITHHOLD CREDIT. 

IF THIS IS THE TEST, EVERY DIVORCE GRANTED A PERSON WHO HAS COME FROM
ANOTHER STATE IS VULNERABLE WHEREVER STATE POLICIES DIFFER, AS THEY DO
UNIVERSALLY IF NO ACCOUNT IS TAKEN OF THE WEIGHT OF DIFFERENCE. 

IT IS ALWAYS A SERIOUS MATTER FOR US TO SAY THAT ONE STATE IS BOUND
TO GIVE EFFECT TO ANOTHER'S DECISION, FOUNDED IN ITS DIFFERENT POLICY. 
THAT MANDATE I WOULD NOT JOIN IN ANY CASE IF NOT COMPELLED BY THE ONLY
AUTHORITY BINDING BOTH THE STATES AND OURSELVES.  CONCEIVABLY IT MIGHT
HAVE BEEN HELD THAT THE FULL FAITH AND CREDIT CLAUSE HAS NO APPLICATION
TO THE MATTERS OF MARRIAGE AND DIVORCE.  BUT THE CONSTITUTION HAS NOT
LEFT OPEN THAT CHOICE.  AND SUCH HAS NOT BEEN THE COURSE OF DECISION. 
THE CLAUSE APPLIES, BUT FROM TODAY IT WOULD SEEM ONLY TO COMPEL
"RESPECT" OR SOMETHING LESS THAN FAITH AND CREDIT, WHENEVER A JURY
CONCLUDES "NOT UNREASONABLY," BY ULTIMATE INFERENCE FROM THE ALWAYS
CONFLICTING CIRCUMSTANTIAL EVIDENCE, THAT IT SHOULD NOT APPLY. 
WHEREVER THAT SITUATION EXISTS, THE FINDING THAT THERE WAS NO "BONA
FIDE" DOMICILIARY INTENT COMES IN EVERY PRACTICAL EFFECT TO THIS AND
NOTHING MORE. 

PERMITTING THE DENIAL IS JUSTIFIED, IT IS SAID, BECAUSE WE MUST HAVE
REGARD ALSO FOR NORTH CAROLINA'S LAWS, POLICIES AND JUDGMENTS.  AND SO
WE MUST.  BUT THUS TO STATE THE QUESTION IS TO BEG THE CONTROLLING
ISSUE.  BY EVERY TEST REMAINING EFFECTIVE, AND NOT DISPUTED, NEVADA HAD
POWER TO ALTER THE PETITIONER'S MARITAL STATUS.  SHE MADE THE
ALTERATION.  IF IT IS VALID, NEITHER NORTH CAROLINA NOR WE ARE FREE TO
QUALIFY IT BY SAYING IT SHALL NOT BE EFFECTIVE THERE, WHILE IT IS
EFFECTIVE IN NEVADA, AND STANDS WITHOUT IMPEACHMENT FOR INEFFECTIVENESS
THERE. 

JUST THAT DENIAL IS WHAT THE TERMS OF THE CONSTITUTION AND THE ACT OF
CONGRESS IMPLEMENTING THEM FORBID.  IT IS EXACTLY FOR THE SITUATION
WHERE STATE POLICIES DIFFER THAT THE CLAUSE AND THE LEGISLATION WERE
INTENDED.  WITHOUT SUCH DIFFERENCES, THE NEED FOR CONSTITUTIONAL
LIMITATION WAS HARDLY ONE OF MAGNITUDE.  THE APPARENT EXCEPTIONS FOR
FRAUD AND WANT OF JURISDICTION WERE NEVER INTENDED TO ENABLE THE STATES
TO DISREGARD THE PROVISION AND EACH OTHER'S POLICIES, CRYSTALLIZED IN
JUDGMENT, WHEN EVERY REQUISITE FOR JURISDICTION HAS BEEN SATISFIED AND
NO SHOWING OF FRAUD HAS BEEN PRESENTED.  THEY HAVE A DIFFERENT PURPOSE,
ONE CONSISTENT WITH THE CONSTITUTIONAL MANDATE, NOT DESTRUCTIVE OF ITS
EFFECT.  THAT PURPOSE IS TO MAKE SURE THAT THE STATE'S POLICY HAS BEEN
APPLIED IN THE JUDGMENT, NOT TO PERMIT DISCREDITING IT OR THE JUDGMENT
WHEN THE ONE VALIDLY CRYSTALLIZES THE OTHER.  SUCH AN EXCEPTION,
GRAFTED UPON THE CLAUSE, BUT NULLIFIES IT.  IT DOES SO TOTALLY WHEN THE
WEIGHT AND QUALITY OF THE DIFFERENCE IN POLICIES HAS NO BEARING ON THE
ISSUE. 

LATELY THIS FACT HAS BEEN RECOGNIZED INCREASINGLY IN RELATION TO
OTHER MATTERS THAN DIVORCE.  FN13  THE VERY FUNCTION OF THE CLAUSE IS
TO COMPEL THE STATES TO GIVE EFFECT TO THE CONTRARY POLICIES OF OTHER
STATES WHEN THESE HAVE BEEN VALIDLY EMBODIED IN JUDGMENT.  TO THIS
EXTENT THE CONSTITUTION HAS FORECLOSED THE FREEDOM OF THE STATES TO
APPLY THEIR OWN LOCAL POLICIES.  THE FORECLOSURE WAS NOT INTENDED ONLY
FOR SLIGHT DIFFERENCES OR FOR UNIMPORTANT MATTERS.  IT WAS ALSO FOR THE
MOST IMPORTANT ONES.  THE CONSTITUTION WAS NOT DEALING WITH PUNY
MATTERS OR INCONSEQUENTIAL LIMITATIONS.  IF THE IMPAIRMENT OF THE POWER
OF THE STATES IS LARGE, IT IS ONE THE CONSTITUTION ITSELF HAS MADE. 
NEITHER THE STATES NOR WE ARE FREE TO DISREGARD IT.  THE "LOCAL PUBLIC
POLICY" EXCEPTION IS NOT AN EXCEPTION, PROPERLY SPEAKING.  IT IS A
NULLIFYING COMPROMISE OF THE PROVISION'S TERMS AND PURPOSE. 

THE EFFORT AT SUCH COMPROMISE, IN MATTERS OF DIVORCE AND REMARRIAGE,
HAS NOT BEEN SUCCESSFUL.  TOGETHER WITH THE INSTRUMENT BY WHICH THE
VARIOUS ATTEMPTS HAVE BEEN MADE, I.E., THE NOTION OF "UNITARY DOMICIL"
CONSTITUTIONALIZED AS "JURISDICTIONAL FACT," THIS EFFORT HAS BEEN THE
SOURCE OF THE LONG CONFUSION IN THE CIRCLE OF DECISION HERE.  TO IT MAY
BE ATTRIBUTED THE REIFICATION OF THE MARITAL STATUS, NOW DISCARDED IN
NAME IF NOT IN SUBSTANCE, AND THE SPLITTING OF THE RES TO MAKE TWO
PEOPLE HUSBAND AND WIFE IN ONE STATE, DIVORCED IN ANOTHER.  HADDOCK V.
HADDOCK, SUPRA; CF. WILLIAMS II.  NOW IT LEADS TO PRACTICAL ABANDONMENT
OF THE EFFORT, OF THIS COURT'S FUNCTION, AND OF THE OBLIGATION PLACED
UPON THE STATES, BY COMMITTING TO THEIR JURIES FOR ALL PRACTICAL
EFFECTS THE FINAL CHOICE TO DISREGARD IT.

                       III 

I DO NOT CONCUR IN THE ABDICATION.  I THINK A MAJOR OPERATION IS
REQUIRED TO PREVENT IT.  THE CONSTITUTION DOES NOT MENTION DOMICIL. 
NOWHERE DOES IT POSIT THE POWERS OF THE STATES OR THE NATION UPON THAT
AMORPHOUS, HIGHLY VARIABLE COMMON-LAW CONCEPTION.  JUDGES HAVE IMPORTED
IT.  THE IMPORTATION, IT SHOULD BE CLEAR BY NOW, HAS FAILED IN CREATING
A WORKABLE CONSTITUTIONAL CRITERION FOR THIS DELICATE REGION.  IN ITS
ORIGIN THE IDEA OF DOMICIL WAS STRANGER TO THE FEDERAL SYSTEM AND THE
PROBLEM OF ALLOCATING POWER WITHIN IT.  THE PRINCIPAL RESULT OF
TRANSPLANTING IT TO CONSTITUTIONAL SOIL HAS BEEN TO MAKE MORE COMPLEX,
VARIABLE AND CONFUSING THAN NEED BE INHERENTLY THE ALLOCATION OF
AUTHORITY IN THE FEDERAL SCHEME.  THE COROLLARY CONSEQUENCE FOR
INDIVIDUALS HAS BEEN MORE AND MORE TO INFUSE WITH UNCERTAINTY,
CONFUSION, AND CAPRICE THOSE HUMAN RELATIONS WHICH MOST REQUIRE
STABILITY AND DEPEND FOR IT UPON HOW THE DISTRIBUTION OF POWER IS
MADE.    IN MY OPINION THESE CONSEQUENCES ARE INEVITABLE AS LONG AS
"UNITARY DOMICIL" USURPS THE ROLE OF "JURISDICTIONAL FACT" AND IS
APPLIED UNDER THE "PERMISSIBLE INFERENCE" RULE TO TURN QUESTIONS OF
POWER FIRST FOR CREATING JURISDICTION, THEN FOR NULLIFYING THE EFFECTS
OF ITS EXERCISE, TO SETTLE AND THEN UNSETTLE THE HUMAN RELATIONS
RESTING UPON THE POWER'S EXERTION.  THE CONCEPTION HAS OUTLIVED ITS
JURISDICTIONAL USEFULNESS UNLESS CAPRICE, CONFUSION AND CONTRADICTION
ARE THE DESIRABLE CRITERIA AND CONSEQUENCES OF JURISDICTIONAL
CONCEPTIONS. 

STRIPPED OF ITS COMMON-LAW GLOSS, THE BASIC CONSTITUTIONAL ISSUE
INHERENT IN THE PROBLEM IS WHETHER THE STATES SHALL HAVE POWER TO ADOPT
SO-CALLED "LIBERAL" DIVORCE POLICIES AND GRANT DIVORCES TO PERSONS
COMING FROM OTHER STATES WHILE THERE TRANSIENTLY OR FOR ONLY SHORT
PERIODS NOT SUFFICIENT IN THEMSELVES, ABSENT OTHER OBJECTIVE CRITERIA,
TO ESTABLISH MORE THAN CASUAL RELATIONS WITH THE COMMUNITY.  ONE COULD
UNDERSTAND AND APPLY, WITHOUT DECADES OF CONFUSION, A RULING THAT
TRANSIENT DIVORCES, FOUNDED ON FLY-BY-NIGHT "RESIDENCE," ARE INVALID
WHERE RENDERED AS WELL AS ELSEWHERE; IN OTHER WORDS, THAT A DECENT
RESPECT FOR SISTER STATES AND THEIR INTERESTS REQUIRES THAT EACH, TO
VALIDLY DECREE DIVORCE, DO SO ONLY AFTER THE PERSON SEEKING IT HAS
ESTABLISHED CONNECTIONS WHICH GIVE EVIDENCE SUBSTANTIALLY AND
OBJECTIVELY THAT HE HAS BECOME MORE THAN CASUALLY AFFILIATED WITH THE
COMMUNITY.  UNTIL THEN THE NEWCOMER WOULD BE TREATED AS RETAINING HIS
ROOTS, FOR THIS PURPOSE, AS SO OFTEN HAPPENS FOR OTHERS, AT HIS FORMER
PLACE OF RESIDENCE.  ONE EQUALLY COULD UNDERSTAND AND APPLY WITH FAIR
CERTAINTY AN OPPOSITE POLICY FRANKLY CONCEDING STATE POWER TO GRANT
TRANSIENT OR SHORT-TERM DIVORCES, PROVIDED DUE PROCESS REQUIREMENTS FOR
GIVING NOTICE TO THE OTHER SPOUSE WERE COMPLIED WITH. 

EITHER SOLUTION WOULD ENTAIL SOME ATTENUATION OF STATE POWER.  BUT
THAT WOULD BE TRUE OF ANY OTHER, WHICH WOULD NOT ALTOGETHER LEAVE THE
MATTER TO THE STATES AND THUS NULLIFY THE CONSTITUTIONAL COMMAND. 
STRONG CONSIDERATIONS COULD BE STATED FOR EITHER CHOICE.  THE ONE WOULD
GIVE EMPHASIS TO THE INTERESTS OF THE STATES IN MAINTAINING LOCALLY
PREVAILING SENTIMENT CONCERNING FAMILIAL AND SOCIAL INSTITUTIONS.  THE
OTHER WOULD REGARD THE MATTER AS MORE IMPORTANT FROM THE STANDPOINT OF
INDIVIDUAL THAN OF INSTITUTIONAL RELATIONS AND SIGNIFICANCE.  BUT
EITHER CHOICE WOULD BE PREFERABLE TO THE PREVAILING ATTEMPT AT
COMPROMISE FOUNDED UPON THE "UNITARY DOMICIL-JURISDICTIONAL FACT
PERMISSIBLE INFERENCE" RULE. 

THAT COMPROMISE GIVES EFFECT TO NEITHER POLICY.  IT VITIATES BOTH;
AND DOES SO IN A MANNER WHOLLY CAPRICIOUS ALIKE FOR THE INSTITUTIONAL
AND THE INDIVIDUAL ASPECTS OF THE PROBLEM.  THE ELEMENT OF CAPRICE LIES
IN THE SUBSTANTIVE DOMICILIARY CONCEPT ITSELF AND ALSO IN THE MODE OF
ITS APPLICATION. 

DOMICIL, AS A SUBSTANTIVE CONCEPT, STEADILY REFLECTS NEITHER A POLICY
OF PERMANENCE NOR ONE OF TRANSIENCY.  IT RATHER REFLECTS BOTH
INCONSTANTLY.  THE VERY NAME GIVES FORTH THE IDEA OF HOME WITH ALL ITS
ANCIENT ASSOCIATIONS OF PERMANENCE.  BUT "HOME" IN THE MODERN WORLD IS
OFTEN A TRAILER OR A TOURIST CAMP.  AUTOMOBILES, NATION-WIDE BUSINESS
AND MULTIPLE FAMILY DWELLING UNITS HAVE DEPRIVED THE INSTITUTION,
THOUGH NOT THE IDEA, OF ITS FORMER GENERAL FIXATION TO SOIL AND
LOCALITY.  BUT, BEYOND THIS, "HOME" IN THE DOMICILIARY SENSE CAN BE
CHANGED IN THE TWINKLING OF AN EYE, THE TIME IT TAKES A MAN TO MAKE UP
HIS MIND TO REMAIN WHERE HE IS WHEN HE IS AWAY FROM HOME.  HE NEED DO
NO MORE THAN DECIDE, BY A FLASH OF THOUGHT, TO STAY "EITHER PERMANENTLY
OR FOR AN INDEFINITE OR UNLIMITED LENGTH OF TIME."  FN14  NO OTHER
CONNECTION OF PERMANENCE IS REQUIRED.  ALL OF HIS BELONGINGS, HIS
BUSINESS, HIS FAMILY, HIS ESTABLISHED INTERESTS AND INTIMATE RELATIONS
MAY REMAIN WHERE THEY HAVE ALWAYS BEEN.  YET IF HE IS BUT PHYSICALLY
PRESENT ELSEWHERE, WITHOUT EVEN BAG OR BAGGAGE, AND UNDERGOES THE
MENTAL FLASH, IN A MOMENT HE HAS CREATED A NEW DOMICIL THOUGH HARDLY A
NEW HOME. 

DOMICIL THUS COMBINES THE ESSENTIALLY CONTRADICTORY ELEMENTS OF
PERMANENCE AND INSTANTANEOUS CHANGE.  NO LEGAL CONCEPTION, SAVE
POSSIBLY "JURISDICTION," OF WHICH IT IS AN ELUSIVE SUBSTRATUM, AFFORDS
SUCH POSSIBILITIES FOR UNCERTAIN APPLICATION.  THE ONLY THING CERTAIN
ABOUT IT, BEYOND ITS UNCERTAINTY, IS THAT ONE MUST TRAVEL TO CHANGE HIS
DOMICIL.  BUT HE MAY TRAVEL WITHOUT CHANGING IT, EVEN REMAIN FOR A
LIFETIME IN HIS NEW PLACE OF ABODE WITHOUT DOING SO.  APART FROM THE
NECESSITY FOR TRAVEL, HARDLY EVIDENTIARY OF STABILIZED RELATIONSHIP IN
A TRANSIENT AGE, THE CRITERION COMES DOWN TO A PURELY SUBJECTIVE MENTAL
STATE, RELATED TO REMAINING FOR A LENGTH OF TIME NEVER YET DEFINED WITH
CLARITY. 

WITH THE CRUX OF POWER FIXED IN SUCH A VARIABLE, SMALL WONDER THAT
THE STATES VACILLATE IN APPLYING IT AND THIS COURT CEASELESSLY SEEKS
WITHOUT FINDING A SOLUTION FOR ITS QUANDARY.  BUT NOT ALL THE VICE LIES
IN THE SUBSTANTIVE CONCEPTION.  ONLY LAWYERS KNOW, UNLESS NOW IT IS
TAXPAYERS FN15  AND PERSONS DIVORCED, HOW RAMBLING IS THE SCOPE OF
FACTS FROM WHICH PROOF IS EVER DRAWN TO SHOW AND NEGATE THE ULTIMATE
CONCLUSION OF SUBJECTIVE "FACT."  THEY KNOW, AS DO THE COURTS AND OTHER
TRIBUNALS WHICH WRESTLE WITH THE PROBLEM, HOW EASILY FACTS PROCREATIVE
OF CONFLICTING INFERENCES MAY BE MARSHALLED AND HOW CONJECTURAL IS THE
OUTCOME.  THERE IS NO GREATER LEGAL GAMBLE.  RARE IS THE SITUATION,
WHERE MUCH IS AT STAKE, IN WHICH CONFLICTING CIRCUMSTANCES CANNOT BE
SHOWN AND WHERE ACCORDINGLY CONFLICTING ULTIMATE INFERENCES CANNOT BE
DRAWN. 

THE ESSENTIALLY VARIABLE NATURE OF THE TEST LIES THEREFORE AS MUCH IN
THE PROOF AND THE MODE OF MAKING THE CONCLUSION AS IN THE SUBSTANTIVE
CONCEPTION ITSELF.  WHEN WHAT MUST BE PROVED IS A VARIABLE, THE PROOF
AND THE CONCLUSION WHICH FOLLOWS UPON IT INEVITABLY TAKE ON THAT
CHARACTER.  THE "UNITARY DOMICIL-JURISDICTIONAL FACT-PERMISSIBLE
INFERENCE" VARIABLE NOT ONLY IS AN INCONSTANT, VACILLATING PIVOT FOR
ALLOCATING POWER.  IT IS INHERENTLY A SURRENDER OF THE POWER TO MAKE
THE ALLOCATION. 

THAT EFFECT IS NOT NULLIFIED BY VAGUE RESERVATION OF SUPERVISORY
INTENT.  FOR SUPERVISION IN ANY CASE THAT MATTERS, THAT IS, WHEREVER
THE ISSUE IS CRUCIAL, NULLIFIES THE TEST.  I THINK ESCAPE SHOULD BE
FORTHRIGHT AND DIRECT.  IT CAN BE SO ONLY IF THE ATTEMPT TO COMPROMISE
WHAT WILL NOT YIELD TO COMPROMISE IS FORSWORN, WITH THE ANCIENT GLOSS
THAT SERVES ONLY TO CONCEAL IN FAMILIAR FORMULA ITS ESSENTIALLY
CAPRICIOUS AND THEREFORE NULLIFYING CHARACTER.  THIS DISCARDED, CHOICE
THEN WOULD BE FORCED BETWEEN THE IDEAS OF TRANSIENCY WITH DUE PROCESS
SAFEGUARDS AND SOME MINIMAL ESTABLISHMENT OF MORE THAN CASUAL OR
TRANSITORY RELATIONS IN THE NEW COMMUNITY, GIVING THE NEWCOMER
SOMETHING OF OBJECTIVE SUBSTANCE IDENTIFYING HIM WITH ITS LIFE. 

WITH THIS CHOICE MADE, OBJECTIVE STANDARDS OF PROOF COULD APPLY, FOR
THE THING TO BE PROVED WOULD BE NEITHER SUBJECTIVE NOR SO HIGHLY
VARIABLE AS INFERENCE OF STATE OF MIND IN AMBIGUOUS SITUATION ALWAYS
MUST BE.  NEITHER DOMICIL'S SHARP SUBJECTIVE EXCLUSIONS BETWEEN THE OLD
AND THE NEW NOR ITS EFFORT TO PROBE THE UNPROVABLE WORKINGS OF THOUGHT
AT SOME PAST MOMENT, AS IN RELATION TO THE LENGTH OF TIME ONE PURPOSED
REMAINING OR WHETHER THERE WAS VESTIGIAL AND CONTINGENT INTENT TO
RETURN, WOULD BE MATERIAL. 

WITH THE SUBJECTIVE SUBSTRATUM REMOVED, THE LARGEST SOURCE OF
VARIABLE AND INCONSTANT DECISION WOULD DISAPPEAR.  THIS WOULD BE TRUE,
WHETHER TRANSIENCY GUARDED BY DUE PROCESS OR SOME MORE ESTABLISHED BUT
OBJECTIVELY DETERMINABLE RELATION WITH THE COMMUNITY WERE CHOSEN FOR
THE STANDARD TO TURN THE EXISTENCE OF POWER.  EITHER CHOICE WOULD BE
PREFERABLE TO THE VARIABLE WHICH CAN GIVE ONLY INCONSTANT AND
CAPRICIOUS EFFECTS, NULLIFYING BOTH POLICIES. 

IF BY ONE CHOICE STATES OF ORIGIN WERE FORCED TO MODIFY THEIR LOCAL
POLICIES BY GIVING EFFECT TO THE DIFFERENT POLICIES OF OTHER STATES
WHEN CRYSTALLIZED IN VALID JUDGMENTS, THAT WOULD BE NO MORE THAN THE
CONSTITUTION IN TERMS PURPORTS TO REQUIRE.  AND IT MAY BE DOUBTED THEIR
SURRENDER WOULD BE MUCH GREATER IN PRACTICAL EFFECTS THAN THE PRESENT
CAPRICIOUS AND THEREFORE DECEPTIVE SYSTEM BRINGS ABOUT.  FN16  IF BY
SOME MORE RESTRICTIVE CHOICE STATES NOW FREE TO GIVE ESSENTIALLY
TRANSIENT DIVORCE WERE REQUIRED TO MODIFY THAT POLICY FOR LOCALLY VALID
EFFECTS, WITHIN THE LIMITS OF ANY OBJECTIVE STANDARD THAT CONCEIVABLY
WOULD BE ACCEPTABLE FOR CONSTITUTIONAL PURPOSES, THE OBLIGATIONS THEY
OWE TO THE NATION AND TO SISTER STATES WOULD SEEM AMPLY TO JUSTIFY THAT
MODEST CURTAILMENT OF THEIR POWER.  IT IS HARD TO SEE WHAT LEGITIMATE
SUBSTANTIAL INTEREST A STATE MAY HAVE IN PROVIDING DIVORCES FOR PERSONS
ONLY TRANSIENTLY THERE OR FOR NEWCOMERS BEFORE THEY HAVE CREATED, BY
REASONABLE LENGTH OF STAY OR OTHER OBJECTIVE STANDARDS, MORE THAN FLY
BY-NIGHT CONNECTIONS. 

I THEREFORE DISSENT FROM THE JUDGMENT WHICH, IN MY OPINION, HAS
PERMITTED NORTH CAROLINA AT HER SUBSTANTIALLY UNFETTERED WILL TO DENY
ALL FAITH AND CREDIT TO THE NEVADA DECREE, WITHOUT IN ANY WAY
IMPEACHING OR ATTEMPTING TO IMPEACH THAT JUDGMENT'S CONSTITUTIONAL
VALIDITY.  BUT IF SHE IS NOT TO BE REQUIRED THUS TO GIVE THE FAITH AND
CREDIT DUE, IN MY OPINION SHE SHOULD NOT BE ALLOWED TO DENY IT BY ANY
STANDARD OF PROOF WHICH IS LESS THAN GENERALLY IS REQUIRED TO OVERTURN
OR DISREGARD A JUDGMENT UPON DIRECT ATTACK.  CF. SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118.  THE SOLEMNITY OF THE JUDICIAL ACT AND THE VERY
MINIMUM OF "RESPECT" DUE THE ACTION OF A SISTER STATE SHOULD COMPEL
ADHERENCE TO THIS STANDARD, THOUGH DOING SO WOULD NOT GIVE THE FULL
FAITH AND CREDIT WHICH THE CONSTITUTION COMMANDS.  TO APPROXIMATE THE
CONSTITUTIONAL POLICY WOULD BE BETTER THAN TO NULLIFY IT. 

FN1  CF. TEXT INFRA PART I. 

FN2  PRESUMABLY IT WOULD BE OUR FUNCTION "TO RETRY THE FACTS" NO MORE
IF THE NEVADA DECREE WERE IMMEDIATELY UNDER CHALLENGE HERE THAN IT IS
TO DO SO WHEN THE NORTH CAROLINA JUDGMENT IS IN ISSUE.  IT WOULD SEEM
THEREFORE THAT WE OWE THE SAME DEFERENCE TO NEVADA'S FINDING OF DOMICIL
AS WE DO TO NORTH CAROLINA'S.  CF. TEXT AT NOTE 4 ET SEQ. 

FN3  THE RECORD INDICATES THAT MR. HENDRIX "HAD BROUGHT NO DIVORCE
PROCEEDING AGAINST THE FEME DEFENDANT PRIOR TO THE FIRST TRIAL OF THIS
CAUSE,  ...  BUT THAT HE HAS SINCE AND REMARRIED."  ALTHOUGH THE
EVIDENCE SHOWS INSTITUTION OF THIS PROCEEDING, IT DOES NOT SHOW A
DECREE WAS ENTERED PRIOR TO HIS REMARRIAGE.  WHETHER OR NOT HE ACTUALLY
RELIED UPON THE NEVADA DECREE, THOUSANDS OF SPOUSES SO DIVORCED DO SO
RELY, THUS FOUNDING NEW RELATIONS WHICH ARE EQUALLY SUBJECT TO
INVALIDATION BY JURY FINDING AND ARE ALWAYS BECLOUDED BY A JUDGMENT
LIKE THAT RENDERED IN THIS CASE. 

FN4  CF. TEXT AT NOTES 2, 5, 7, 9, 11 ET SEQ. 

FN5  THE NEVADA COURT KNEW THAT PETITIONERS RECENTLY HAD COME FROM
NORTH CAROLINA, RESIDED IN TOURIST QUARTERS, AN AUTO COURT, AND BY
INFERENCE AT LEAST THAT THEY HAD COME TOGETHER.  THERE WAS IN THE FACTS
SUFFICIENT BASIS FOR CONCLUSION THAT THEY HAD NO "BONA FIDE" INTENTION
OF REMAINING PERMANENTLY OR INDEFINITELY, AFTER THE DECREES WERE
RENDERED, IF THE COURT HAD WISHED TO DRAW THAT CONCLUSION.  CREDIBILITY
IN SUCH CIRCUMSTANCES IS ALWAYS FOR THE TRIER OF FACT.  WORCESTER
COUNTY TRUST CO. V. RILEY, 302 U.S. 292, 299; BURBANK V. ERNST, 232
U.S. 162, 164. 

FN6  HADDOCK V. HADDOCK, 201 U.S. 562, 572. 

FN7  THE CASE WAS NOT TRIED ON ANY THEORY THAT NEVADA'S COURT WAS
DEFRAUDED OR HER LAW EVADED.  NO EFFORT WAS MADE TO BRING IT WITHIN
THAT WELL RECOGNIZED EXCEPTION TO THE BINDING EFFECT OF JUDGMENTS
GENERALLY.  UNITED STATES V. THROCKMORTON, 98 U.S. 61; TOLEDO SCALE CO.
V. COMPUTING SCALE CO., 261 U.S. 399.  NOR IS THAT GROUND ASSERTED HERE
TO SUPPORT THE DENIAL OF CREDIT.  IT WAS NOT SUGGESTED, AND IS NOT NOW,
THAT NEVADA EITHER WOULD, OR COULD BE REQUIRED TO, SET ASIDE HER
JUDGMENT OR REACH A DIFFERENT RESULT, UPON THE EVIDENCE THIS RECORD
PRESENTS; OR THAT SHE NOW IS BOUND TO GIVE FULL FAITH AND CREDIT TO
NORTH CAROLINA'S DECISION.  NOR HAS IT BEEN CONTENDED THAT THE NEVADA
EVIDENCE WAS NOT ADEQUATE TO SUPPORT HER FINDING. 

FN8  PETITIONERS' MOTION FOR JUDGMENT BY NONSUIT, WHICH THE COURT
DENIED, WAS GROUNDED IN PART UPON THE ABSENCE OF EVIDENCE OF FRAUD UPON
THE NEVADA COURT OR LAW AND ALLEGED INCOMPETENCE OF SUCH EVIDENCE IF
TENDERED.  THEY ALSO OBJECTED TO THE PORTIONS OF THE CHARGE WHICH
SUBMITTED THE ISSUE OF "BONA FIDE DOMICIL" WITHOUT REFERENCE TO THE
EFFECT OF THE EVIDENCE AS TENDING TO VITIATE THE NEVADA DECREE.  "BONA
FIDES" IS INHERENTLY AN ELEMENT IN DOMICILIARY INTENT.  MERELY ADDING
THE PHRASE AS QUALIFYING ADJECTIVE DOES NOT RAISE AN ISSUE OF FRAUD. 
FOR THIS REASON, FOUNDED IN THE STATE OF THE RECORD, THE COURT ESCHEWS
GROUNDING THE DECISION UPON FRAUD OR COLLUSION. 

FN9 CF. COCHRANE V. DEENER, 95 U.S. 355; UNITED STATES V. MAXWELL
LAND-GRANT CO., 121 U.S. 325, 381; UNITED STATES V. SAN JACINTO TIN
CO., 125 U.S. 273, 300; LALONE V. UNITED STATES, 164 U.S. 255; UNITED
STATES V. AMERICAN BELL TEL. CO., 167 U.S. 224.  SEE 9 WIGMORE,
EVIDENCE (3RD ED.)  SEC.  2498. 

FN10  CF. NOTE 5. 

FN11  CF. COMMISSIONERS OF MARION COUNTY V. CLARK, 94 U.S. 278, 284;
JONES V. EAST TENNESSEE, V. & G.R. CO., 128 U.S. 443, 445; TILLER V.
ATLANTIC COAST LINE R. CO., 318 U.S. 54, 68; BAILEY V. CENTRAL VERMONT
R. CO., 319 U.S. 350, 353, 354; TENNANT V. PEORIA & P.U.R. CO., 321
U.S. 29, 35; 9 WIGMORE, SEC. 2494. 

FN12  CF. NOTE 16. 

FN13  CF. MILWAUKEE COUNTY V. M.E. WHITE CO., 296 U.S. 268; TITUS V.
WALLICK, 306 U.S. 282; TEXAS V. FLORIDA, 306 U.S. 398, 410. 

FN14  CITATION OF AUTHORITY IS HARDLY NEEDED FOR REFERENCE TO THE
DIFFICULTIES COURTS HAVE ENCOUNTERED IN THE EFFORT TO DEFINE THIS
INTENT.  "ANIMUS MANENDI" IS OFTEN A LATIN REFUGE WHICH SUCCEEDS ONLY
IN EVADING, NOT IN RESOLVING, THE QUESTION WITH WHICH JOB WRESTLED IN
HIS SUFFERING.    FN15  CF. TILT V. KELSEY, 207 U.S. 43; IOWA V.
SLIMMER, 248 U.S. 115; WORCESTER COUNTY TRUST CO. V. RILEY, 302 U.S.
292; TEXAS V. FLORIDA, 306 U.S. 398; SWEENEY V. DISTRICT OF COLUMBIA,
113 F.2D 25, CERT. DENIED, 310 U.S. 631.  COMPARE DISTRICT OF COLUMBIA
V. MURPHY, 314 U.S. 441, WITH DISTRICT OF COLUMBIA V. PACE, 320 U.S.
698.  SEE 121 A.L.R. 1200; TWEED AND SARGENT, DEATH AND TAXES ARE
CERTAIN - BUT WHAT OF DOMICILE?  (1939) 53 HARV. L. REV. 68. 

FN16  THE RESIDENCE REQUIREMENTS OF THE STATES FOR ABSOLUTE DIVORCE
VARY DEPENDING AT TIMES ON THE GROUND FOR DIVORCE RELIED ON, THE PLACE
WHERE THE CAUSE OF ACTION AROSE, OR OTHER FACTORS.  SPEAKING GENERALLY,
APPROXIMATELY 33 STATES REQUIRE ONE YEAR'S RESIDENCE IN MOST DIVORCE
ACTIONS.  NINE STATES ARE MORE SEVERE, 7 OF THESE REQUIRING 2 YEARS'
RESIDENCE AND TWO A LONGER PERIOD.  SIX STATES ARE LESS SEVERE.  OF
THESE NORTH CAROLINA AT PRESENT REQUIRES A 6 MONTHS' RESIDENCE AND THE
OTHERS SIX WEEKS TO THREE MONTHS.  SEE WARREN, SCHOULER DIVORCE MANUAL
(1944) 705-720.  THUS, PRACTICALLY SPEAKING, 39 STATES REQUIRE ONE YEAR
OR LESS, ONLY 9 LONGER. 

IT SEEMS QUESTIONABLE, AT ANY RATE, THAT THE GROUNDS FOR DIVORCE AS
SUCH HAVE "JURISDICTIONAL" SIGNIFICANCE.  PRESUMABLY, IF LENGTH OF
RESIDENCE IS THE CONTROLLING FACTOR, ALL OF THE STATES WOULD BE
REQUIRED TO GIVE EFFECT TO DIVORCES GRANTED BY THE 42 REQUIRING ONE
YEAR OR LONGER, UNLESS THE GREATLY PREPONDERANT LEGISLATIVE JUDGMENT IS
TO BE DISREGARDED.  THE PERMISSIBLE DENIAL ACCORDINGLY WOULD EXTEND AT
THE MOST TO DECREES GRANTED BY THE SIX STATES REQUIRING LESS THAN ONE
YEAR.  IT IS DIFFICULT TO SEE HOW GREATLY DISRUPTIVE EFFECTS WOULD BE
CREATED FOR THEM OR FOR THE OTHER STATES BY REQUIRING THEM TO
APPROXIMATE THE GENERALLY PREVAILING JUDGMENT AS TO THE LENGTH OF THE
PERIOD APPROPRIATE FOR GRANTING IMPECCABLE DIVORCE. 

MR. JUSTICE BLACK, DISSENTING. 

ANGLO-AMERICAN LAW HAS, UNTIL TODAY, STEADFASTLY MAINTAINED THE
PRINCIPLE THAT BEFORE AN ACCUSED CAN BE CONVICTED OF CRIME, HE MUST BE
PROVEN GUILTY BEYOND A REASONABLE DOUBT.  THESE PETITIONERS HAVE BEEN
SENTENCED TO PRISON BECAUSE THEY WERE UNABLE TO PROVE THEIR INNOCENCE
TO THE SATISFACTION OF THE STATE OF NORTH CAROLINA.  THEY HAVE BEEN
CONVICTED UNDER A STATUTE SO UNCERTAIN IN ITS APPLICATION THAT NOT EVEN
THE MOST LEARNED MEMBER OF THE BAR COULD HAVE ADVISED THEM IN ADVANCE
AS TO WHETHER THEIR CONDUCT WOULD VIOLATE THE LAW.  IN REALITY THE
PETITIONERS ARE BEING DEPRIVED OF THEIR FREEDOM BECAUSE THE STATE OF
NEVADA, THROUGH ITS LEGISLATURE AND COURTS, FOLLOWS A LIBERAL POLICY IN
GRANTING DIVORCES.  THEY HAD NEVADA DIVORCE DECREES WHICH AUTHORIZED
THEM TO REMARRY.  WITHOUT CHARGE OR PROOF OF FRAUD IN OBTAINING THESE
DECREES,  FN1  AND WITHOUT HOLDING THE DECREES INVALID UNDER NEVADA
LAW, THIS COURT AFFIRMS A CONVICTION OF PETITIONERS, FOR LIVING
TOGETHER AS HUSBAND AND WIFE.  I CANNOT RECONCILE THIS WITH THE FULL
FAITH AND CREDIT CLAUSE AND WITH CONGRESSIONAL LEGISLATION PASSED
PURSUANT TO IT. 

IT IS MY FIRM CONVICTION THAT THESE CONVICTIONS CANNOT BE HARMONIZED
WITH VITAL CONSTITUTIONAL SAFEGUARDS DESIGNED TO SAFEGUARD INDIVIDUAL
LIBERTY AND TO UNITE ALL THE STATES OF THIS WHOLE COUNTRY INTO ONE
NATION.  THE FACT THAT TWO PEOPLE WILL BE DEPRIVED OF THEIR
CONSTITUTIONAL RIGHTS IMPELS ME TO PROTEST AS VIGOROUSLY AS I CAN
AGAINST AFFIRMANCE OF THESE CONVICTIONS.  EVEN MORE, THE COURT'S
OPINION TODAY WILL CAST A CLOUD OVER THE LIVES OF COUNTLESS NUMBERS OF
THE MULTITUDE OF DIVORCED PERSONS IN THE UNITED STATES.  THE IMPORTANCE
OF THE ISSUES PROMPTS ME TO SET OUT MY VIEWS IN SOME DETAIL. 

STATISTICS INDICATE THAT APPROXIMATELY FIVE MILLION DIVORCED PERSONS
ARE SCATTERED THROUGHOUT THE FORTY-EIGHT STATES.  FN2  MORE THAN 85% OF
THESE DIVORCES WERE GRANTED IN UNCONTESTED PROCEEDINGS.  FN3  NOT ONE
OF THIS LATTER GROUP CAN NOW RETAIN ANY FEELING OF SECURITY IN HIS
DIVORCE DECREE.  EVER PRESENT WILL BE THE DANGER OF CRIMINAL
PROSECUTION AND HARASSMENT. 

ALL THESE DECREES WERE GRANTED BY STATE COURTS.  ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, AND CASES FOLLOWING IT, RECOGNIZED THE OBVIOUS
TRUTH, THAT RULES OF LAW LAID DOWN BY STATE COURTS ARE BINDING.  THESE
JUDICIAL "LAWS" ARE REPRESENTED BY DECREES, JUDGMENTS AND COURT
OPINIONS.  TODAY'S OPINION, HOWEVER, UNDERMINES AND MAKES UNCERTAIN THE
VALIDITY OF EVERY UNCONTESTED DIVORCE DECREE.  IT WIPES OUT EVERY
SEMBLANCE OF THEIR FINALITY AND DECISIVENESS.  IT ACHIEVES WHAT THE
COURT TERMS THE "DESIRABLE EFFECT" OF PROVIDING THE "SAME" QUALITY TO
EVERY DIVORCE DECREE, "WHEREVER THE QUESTION ARISES" - IT ENDOWS THEM
ALL ALIKE WITH THE "SAME" INSTABILITY AND PRECARIOUSNESS.  THE RESULT
IS TO CLASSIFY DIVORCED PERSONS IN A DISTINCTIVE AND INVIDIOUS
CATEGORY.  A YEAR AGO, A MAJORITY OF THIS COURT IN A WORKMEN'S
COMPENSATION CASE DECLARED THAT THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION WAS A "NATIONALLY UNIFYING FORCE"; FN4  TODAY, AS TO
DIVORCE DECREES, THAT CLAUSE, COUPLED WITH A NEW CONTENT RECENTLY ADDED
TO THE DUE PROCESS CLAUSE, HAS BECOME A NATIONALLY DISRUPTIVE FORCE. 
UNCONTESTED DIVORCE DECREES ARE THUS SO DEGRADED THAT A PERSON WHO
MARRIES IN RELIANCE UPON THEM CAN BE SENT TO JAIL.  WITH MUCH LANGUAGE
THE COURT HAS IN EFFECT ADOPTED THE PREVIOUSLY ANNOUNCED HYPOTHESIS
UPON WHICH THE NORTH CAROLINA SUPREME COURT PERMITTED ANOTHER PERSON TO
BE SENT TO PRISON, NAMELY, THAT "THE FULL FAITH AND CREDIT CLAUSE DOES
NOT APPLY TO ACTIONS FOR DIVORCE, AND THAT THE STATES ALONE HAVE THE
RIGHT TO DETERMINE WHAT EFFECT SHALL BE GIVEN TO THE DECREES OF OTHER
STATES IN THIS CLASS OF CASES."  STATE V. HERRON, 175 N.C. 754, 758, 94
S.E. 698; CF. MATTER OF HOLMES, 291 N.Y. 261, 273, 52 N.E.2D 424. 

THE PETITIONERS WERE MARRIED IN NEVADA.  NORTH CAROLINA HAS SENTENCED
THEM TO PRISON FOR LIVING TOGETHER AS HUSBAND AND WIFE IN NORTH
CAROLINA.  THIS COURT TODAY AFFIRMS THOSE SENTENCES WITHOUT A
DETERMINATION THAT THE NEVADA MARRIAGE WAS INVALID UNDER THAT STATE'S
LAWS.  THIS HOLDING CAN BE SUPPORTED, IF AT ALL, ONLY ON ONE OF TWO
GROUNDS:  (1) NORTH CAROLINA HAS EXTRA-TERRITORIAL POWER TO REGULATE
MARRIAGES WITHIN NEVADA'S TERRITORIAL BOUNDARIES, OR, (2) NORTH
CAROLINA CAN PUNISH PEOPLE WHO LIVE TOGETHER IN THAT STATE AS HUSBAND
AND WIFE EVEN THOUGH THEY HAVE BEEN VALIDLY MARRIED IN NEVADA.  A
HOLDING BASED ON EITHER OF THESE TWO GROUNDS ENCROACHES UPON THE
GENERAL PRINCIPLE RECOGNIZED BY THIS COURT THAT A MARRIAGE VALIDLY
CONSUMMATED UNDER ONE STATE'S LAWS IS VALID IN EVERY OTHER STATE.  FN5
IF THE COURT IS TODAY ABANDONING THAT PRINCIPLE, IT TAKES AWAY FROM THE
STATES A LARGE PART OF THEIR HITHERTO PLENARY CONTROL OVER THE
INSTITUTION OF MARRIAGE.  A FURTHER CONSEQUENCE IS TO SUBJECT PEOPLE TO
CRIMINAL PROSECUTIONS FOR ADULTERY AND BIGAMY MERELY BECAUSE THEY
EXERCISE THEIR CONSTITUTIONAL RIGHT TO PASS FROM A STATE IN WHICH THEY
WERE VALIDLY MARRIED INTO ANOTHER STATE WHICH REFUSES TO RECOGNIZE
THEIR MARRIAGE.  SUCH A CONSEQUENCE RUNS COUNTER TO THE BASIC
GUARANTEES OF OUR FEDERAL UNION.  EDWARDS V. CALIFORNIA, 314 U.S. 160. 
IT IS TRUE THAT PERSONS VALIDLY MARRIED UNDER THE LAWS OF ONE STATE
HAVE BEEN CONVICTED OF CRIME FOR LIVING TOGETHER IN OTHER STATES.  FN6
BUT THOSE STATE CONVICTIONS WERE NOT APPROVED BY THIS COURT.  AND NEVER
BEFORE TODAY HAS THIS COURT DECIDED A CASE UPON THE ASSUMPTION THAT MEN
AND WOMEN VALIDLY MARRIED UNDER THE LAWS OF ONE STATE COULD BE SENT TO
JAIL BY ANOTHER STATE FOR CONDUCT WHICH INVOLVED NOTHING MORE THAN
LIVING TOGETHER AS HUSBAND AND WIFE. 

THE COURT'S OPINION MAY HAVE PASSED OVER THE MARRIAGE QUESTION ON THE
UNSPOKEN PREMISE THAT THE PETITIONERS WERE WITHOUT LEGAL CAPACITY TO
MARRY.  IF SO, THE PRIMARY QUESTION STILL WOULD BE WHETHER THAT
CAPACITY, AND OTHER ISSUES SUBSIDIARY TO IT, ARE TO BE DETERMINED UNDER
NEVADA, NORTH CAROLINA, OR FEDERAL LAW.  ANSWERS TO THESE QUESTIONS
REQUIRE A DISCUSSION OF THE DIVORCE DECREES AWARDED TO THE PETITIONERS
IN A NEVADA COURT PRIOR TO THEIR MARRIAGE THERE. 

WHEN THE NEVADA DECREES WERE GRANTED, THE PETITIONERS' FORMER SPOUSES
LIVED IN NORTH CAROLINA.  WHEN PETITIONERS WERE TRIED AND CONVICTED,
ONE OF THEIR FORMER SPOUSES WAS DEAD AND THE OTHER HAD REMARRIED. 
UNDER THE LEGAL DOCTRINE PREVAILING IN NEVADA AND IN MOST OF THE
STATES, THESE FACTS WOULD MAKE BOTH THE DECREES IMMUNE FROM ATTACK
UNLESS, PERHAPS, BY PERSONS OTHER THAN THE NORTH CAROLINA SPOUSES,
WHOSE PROPERTY RIGHTS MIGHT BE ADVERSELY AFFECTED BY THE DECREES.  FN7
SO FAR AS APPEARS FROM THE RECORD NO PERSON'S PROPERTY RIGHTS WERE
ADVERSELY AFFECTED BY THE DISSOLUTION DECREES.  NONE OF THE PARTIES TO
THE MARRIAGE, ALTHOUGH FORMALLY NOTIFIED OF THE NEVADA DIVORCE
PROCEEDINGS, MADE ANY PROTEST BEFORE OR AFTER THE DECREES WERE
RENDERED.  THE STATE DID NOT SUE HERE TO PROTECT ANY NORTH CAROLINIAN'S
PROPERTY RIGHTS OR TO OBTAIN SUPPORT FOR THE FAMILIES WHICH HAD BEEN
DESERTED.  THE RESULT OF ALL THIS IS THAT THE RIGHT OF THE STATE TO
ATTACK THE VALIDITY OF THESE DECREES IN A CRIMINAL PROCEEDING IS TODAY
SUSTAINED, ALTHOUGH THE STATE'S CITIZENS, ON WHOSE BEHALF IT PURPORTS
TO ACT, COULD NOT HAVE DONE SO AT THE TIME OF THE CONVICTION IN A CIVIL
PROCEEDING.  FURTHERMORE, ALL OF THE PARTIES TO THE FIRST TWO MARRIAGES
WERE APPARENTLY SATISFIED THAT THEIR HAPPINESS DID NOT LIE IN CONTINUED
MARITAL COHABITATION.  NORTH CAROLINA CLAIMS NO INTEREST IN ABRIDGING
THEIR INDIVIDUAL FREEDOM BY FORCING THEM TO LIVE TOGETHER AGAINST THEIR
OWN DESIRES.  THE STATE'S INTEREST AT THE TIME THESE PETITIONERS WERE
CONVICTED THUS COMES DOWN TO ITS CONCERN IN PRESERVING A BARE MARITAL
STATUS FOR A SPOUSE WHO HAD ALREADY MARRIED AGAIN.  IF THE STATE'S
INTEREST BEFORE THAT TIME BE CONSIDERED, IT WAS TO PRESERVE A BARE
MARITAL STATUS AS TO TWO PERSONS WHO HAD SOUGHT A DIVORCE AND TWO
OTHERS WHO HAD NOT OBJECTED TO IT.  IT IS AN EXTRAORDINARY THING FOR A
STATE TO PROCURE A RETROACTIVE INVALIDATION OF A DIVORCE DECREE, AND
THEN PUNISH ONE OF ITS CITIZENS FOR CONDUCT AUTHORIZED BY THAT DECREE,
WHEN IT HAD NEVER BEEN CHALLENGED BY EITHER OF THE PEOPLE MOST
IMMEDIATELY INTERESTED IN IT.  I WOULD NOT PERMIT SUCH AN ATTENUATED
STATE INTEREST TO OVERRIDE THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION AND AN ACT OF CONGRESS PURSUANT TO IT.  FN8  HERE AGAIN,
NORTH CAROLINA'S RIGHT TO ATTACK THIS JUDGMENT, DESPITE THE FULL FAITH
AND CREDIT CLAUSE AND THE CONGRESSIONAL ENACTMENT, IS NOT BASED ON
NEVADA LAW; NOR COULD IT BE.  FOR IN NEVADA, EVEN THE ATTORNEY GENERAL
COULD NOT HAVE OBTAINED A CANCELLATION OF THE DECREE ON THE GROUND THAT
IT WAS RENDERED WITHOUT JURISDICTION.  STATE V. MOORE, 46 NEV. 65, 207
P. 75.  THIS MAKES IT CLEAR BEYOND ALL DOUBT THAT NORTH CAROLINA HAS
NOT GIVEN THESE DECREES THE SAME EFFECT THAT THEY WOULD BE GIVEN IN THE
COURTS OF NEVADA. 

THE COURT PERMITS NORTH CAROLINA TO DISREGARD THE DECREES ON THE
FOLLOWING LINE OF REASONING.  NO STATE NEED GIVE FULL FAITH AND CREDIT
TO A "VOID" DECREE.  A DECREE RENDERED BY A COURT WITHOUT
"JURISDICTION" IS "VOID."  NO STATE COURT HAS "JURISDICTION" TO GRANT A
DIVORCE UNLESS ONE OF THE PARTIES IS "DOMICILED" IN THE STATE.  THE
NORTH CAROLINA COURT HAS DECIDED THAT THESE PETITIONERS HAD NO
"DOMICILE" IN NEVADA.  THEREFORE, THE NEVADA COURT HAD NO
"JURISDICTION," THE DECREES ARE "VOID," AND NORTH CAROLINA NEED NOT
GIVE THEM FAITH OR CREDIT.  THE SOLUTION TO ALL THESE PROBLEMS DEPENDS
IN TURN UPON THE QUESTION COMMON TO ALL OF THEM - DOES STATE LAW OR
FEDERAL LAW APPLY? 

THE CONSTITUTION PROVIDES THAT "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."  ACTING PURSUANT TO THIS CONSTITUTIONAL AUTHORITY,
CONGRESS IN 1790 DECLARED WHAT LAW SHOULD GOVERN AND WHAT "EFFECT"
SHOULD BE GIVEN THE JUDGMENTS OF STATE COURTS.  THAT STATUTE IS STILL
THE LAW.  ITS COMMAND IS THAT THEY "SHALL HAVE SUCH FAITH AND CREDIT
GIVEN TO THEM  ... AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE
STATE FROM WHICH THEY ARE TAKEN."  28 U.S.C. 687.  IF, AS THE COURT
TODAY IMPLIES, DIVORCE DECREES SHOULD BE GIVEN LESS EFFECT THAN OTHER
COURT JUDGMENTS, CONGRESS ALONE HAS THE CONSTITUTIONAL POWER TO SAY SO.
WE SHOULD NOT ATTEMPT TO SOLVE THE "DIVORCE PROBLEM" BY CONSTITUTIONAL
INTERPRETATION.  AT LEAST, UNTIL CONGRESS HAS COMMANDED A DIFFERENT
"EFFECT" FOR DIVORCES GRANTED ON A SHORT SOJOURN WITHIN A STATE, WE
SHOULD STAY OUR HANDS.  A PROPER RESPECT FOR THE CONSTITUTION AND THE
CONGRESS WOULD SEEM TO ME TO REQUIRE THAT WE LEAVE THIS PROBLEM WHERE
THE CONSTITUTION DID.  IF WE FOLLOW THAT COURSE, NORTH CAROLINA CANNOT
BE PERMITTED TO DISREGARD THE NEVADA DECREES WITHOUT PASSING UPON THE
"FAITH AND CREDIT" WHICH NEVADA ITSELF WOULD GIVE TO THEM UNDER ITS OWN
"LAW OR USAGE."  THE COURT HAS DECIDED THE MATTER AS THOUGH IT WERE A
PURELY FEDERAL QUESTION; CONGRESS AND THE CONSTITUTION DECLARED IT TO
BE A STATE QUESTION.  THE LOGIC OF THE COURT DOES NOT PERSUADE ME THAT
WE SHOULD IGNORE THESE MANDATES OF THE CONGRESS AND THE CONSTITUTION. 
NEVADA'S DECREES PURPORTED TO GRANT PETITIONERS AN ABSOLUTE DIVORCE
WITH A RIGHT TO REMARRY.  NO "LAW OR USAGE" OF NEVADA HAS BEEN POINTED
OUT TO US WHICH WOULD INDICATE THAT NEVADA WOULD, UNDER ANY
CIRCUMSTANCES, CONSIDER ITS DECREES SO "VOID" AS TO WARRANT IMPRISONING
THOSE WHO HAVE REMARRIED IN RELIANCE UPON SUCH EXISTING AND UNANNULLED
DECREES. 

A JUDGMENT MAY BE "VOID" IN THE GENERAL SENSE, AND YET GIVE RISE TO
RIGHTS AND OBLIGATIONS.  WHILE ON THE BOOKS ITS EXISTENCE IS A FACT,
NOT A THEORY.  AND IT MAY BE SAID OF DECREES, LATER INVALIDATED, AS OF
STATUTES HELD UNCONSTITUTIONAL, THAT "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  ...  AN ALL-INCLUSIVE
STATEMENT OF A PRINCIPLE OF ABSOLUTE RETROACTIVE INVALIDITY CANNOT BE
JUSTIFIED."  CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER STATE BANK, 308
U.S. 371, 374.  DESPITE THE CONCLUSION THAT A JUDGMENT IS "VOID,"
COURTS HAVE IN THE INTEREST OF SUBSTANTIAL JUSTICE AND FAIRNESS
DECLINED TO ATTRIBUTE A MEANING TO THAT WORD WHICH WOULD MAKE SUCH
JUDGMENTS, FOR ALL PURPOSES, WORTHLESS SCRAPS OF PAPER.  FN9  AFTER A
JUDGMENT HAS BEEN DECLARED "VOID" IT STILL REMAINS TO DECIDE AS TO THE
CONSEQUENCES ATTACHED TO GOOD FAITH CONDUCT BETWEEN ITS RENDITION AND
ITS NULLIFICATION.  THAT DETERMINATION, I THINK, MUST, IN THIS CASE,
UNDER THE FULL FAITH AND CREDIT CLAUSE, BE MADE IN ACCORDANCE WITH THE
"LAW OR USAGE" OF NEVADA - NOT OF NORTH CAROLINA OR THE FEDERAL
GOVERNMENT. 

THIS BRINGS ME TO THE COURT'S HOLDING THAT NEVADA DECREES WERE
"VOID."  THAT CONCLUSION RESTS ON THE PREMISE THAT THE NEVADA COURT WAS
WITHOUT JURISDICTION BECAUSE THE NORTH CAROLINA COURT FOUND THAT THE
PETITIONERS HAD NO "DOMICILE" IN NEVADA.  THE NEVADA COURT HAD BASED
ITS DECREE ON A FINDING THAT "DOMICILE" HAD BEEN ESTABLISHED BY
EVIDENCE BEFORE IT.  AS I READ THAT EVIDENCE, IT WOULD HAVE BEEN
SUFFICIENT TO SUPPORT THE FINDINGS, HAD THE CASE BEEN REVIEWED BY US.
THUS, THIS QUESTION OF FACT HAS NOW BEEN ADJUDICATED IN TWO STATE
COURTS WITH DIFFERENT RESULTS.  IT SHOULD BE NOTED NOW THAT THIS COURT
VERY RECENTLY HAS SAID AS TO THE FULL FAITH AND CREDIT CLAUSE AND THE
1790 CONGRESSIONAL ENACTMENT, THAT "FROM THE BEGINNING THIS COURT HAS
HELD THAT THESE PROVISIONS HAVE MADE THAT WHICH HAS BEEN ADJUDICATED IN
ONE STATE RES JUDICATA TO THE SAME EXTENT IN EVERY OTHER."  MAGNOLIA
PETROLEUM CO. V. HUNT, SUPRA, AT 438.  FN10  THAT IT WAS APPROPRIATE
FOR THE NEVADA COURT TO PASS UPON THE QUESTION OF DOMICILE CAN HARDLY
BE DOUBTED, SINCE THE CONCURRING OPINION IN OUR FIRST CONSIDERATION OF
THIS CASE CORRECTLY SAID THAT THE "NEVADA DECREES DO SATISFY THE
REQUIREMENTS OF THE DUE PROCESS CLAUSE AND ARE BINDING IN NEVADA ON THE
ABSENT SPOUSES  ..."  317 U.S. 287, 306.  THE COURT TODAY, HOWEVER,
SEEMS TO PLACE ITS HOLDING THAT THE NEVADA DECREES ARE VOID ON THE
BASIS THAT THE DUE PROCESS CLAUSE MAKES DOMICILE AN INDISPENSABLE
PREREQUISITE TO A STATE COURT'S "JURISDICTION" TO GRANT DIVORCE.  IT
FURTHER HOLDS THAT THIS NEWLY CREATED FEDERAL RESTRICTION OF STATE
COURTS PROJECTS FACT ISSUES WHICH THE STATE COURTS CANNOT FINALLY
DETERMINE FOR THEMSELVES.  DAVIS V. DAVIS, 305 U.S. 32, PROVIDES A
POSSIBLE EXCEPTION TO THIS HOLDING.  IT DECIDED THAT WHERE BOTH SPOUSES
APPEARED, A STATE COURT COULD FINALLY DETERMINE THE QUESTION OF
DOMICILE.  WHETHER THE COURT TODAY OVERRULES THAT CASE I CANNOT BE
SURE.  CERTAINLY, IF A STATE COURT CANNOT FINALLY DETERMINE THE
QUESTION OF DOMICILE BECAUSE IT IS A FEDERAL QUESTION, EACH DIVORCE
CONTROVERSY INVOLVING DOMICILE MUST BE SUBJECT TO REVIEW HERE WHETHER
BOTH PARTIES APPEAR OR NOT. 

I CANNOT AGREE TO THIS LATEST EXPANSION OF FEDERAL POWER AND THE
CONSEQUENT DIMINUTION OF STATE POWER OVER MARRIAGE AND MARRIAGE
DISSOLUTION WHICH THE COURT DERIVES FROM ADDING A NEW CONTENT TO THE
DUE PROCESS CLAUSE.  THE ELASTICITY OF THAT CLAUSE NECESSARY TO JUSTIFY
THIS HOLDING IS FOUND, I SUPPOSE, IN THE NOTION THAT IT WAS INTENDED TO
GIVE THIS COURT UNLIMITED AUTHORITY TO SUPERVISE ALL ASSERTIONS OF
STATE AND FEDERAL POWER TO SEE THAT THEY COMPORT WITH OUR IDEAS OF WHAT
ARE "CIVILIZED STANDARDS OF LAW."  SEE MALINSKI V. NEW YORK, 324 U.S.
401.  I HAVE NOT AGREED THAT THE DUE PROCESS CLAUSE GIVES US ANY SUCH
UNLIMITED POWER, BUT UNLESS IT DOES, I AM UNABLE TO UNDERSTAND FROM
WHAT SOURCE OUR AUTHORITY TO STRIP NEVADA OF ITS POWER OVER MARRIAGE
AND DIVORCE CAN BE THOUGHT TO DERIVE.  CERTAINLY, THERE IS NO LANGUAGE
IN THE CONSTITUTION WHICH EVEN REMOTELY SUGGESTS THAT THE FEDERAL
GOVERNMENT CAN FIX THE LIMITS OF A STATE COURT'S JURISDICTION OVER
DIVORCES.  IN DOING SO, THE COURT TODAY EXALTS "DOMICILE," DEPENDENT
UPON A MENTAL STATE, TO A POSITION OF CONSTITUTIONAL DIGNITY.  STATE
JURISDICTION IN DIVORCE CASES NOW DEPENDS UPON A STATE OF MIND AS TO
FUTURE INTENT.  THUS "A HAIR PERHAPS DIVIDES" THE CONSTITUTIONAL
JURISDICTION OR LACK OF JURISDICTION OF STATE COURTS TO GRANT
DIVORCES.  CF. POLLOCK V. WILLIAMS, 322 U.S. 4, 21.  AND THIS "HAIR
LINE" DIVISION INVOLVES A FEDERAL QUESTION, APPARENTLY OPEN TO REPEATED
ADJUDICATIONS AT THE INSTANCE OF AS MANY DIFFERENT PARTIES AS CAN BE
FOUND TO RAISE IT.  MOREOVER, SINCE IT IS A FEDERAL QUESTION, EACH NEW
LITIGANT HAS A STATUTORY RIGHT TO ASK US TO PASS ON IT. 

THE TWO CASES CITED BY THE COURT DO NOT SUPPORT THIS NOVEL
CONSTITUTIONAL DOCTRINE.  BELL V. BELL, 181 U.S. 175, HELD A
PENNSYLVANIA DECREE INVALID ON THE GROUND THAT THERE WAS NO DOMICILE
SHOWN.  IT SPECIFICALLY STATED, HOWEVER, THAT PENNSYLVANIA LAW REQUIRED
ONE YEAR'S DOMICILE.  NEITHER THE DECISION IN THAT CASE, NOR ANY OF THE
OTHERS ON WHICH IT RELIED, RESTED ON AN INTERPRETATION OF THE DUE
PROCESS CLAUSE AS REQUIRING "DOMICILE."  FN11  NOR DID THE DECISION IN
ANDREWS V. ANDREWS, 188 U.S. 14, SUPPORT TODAY'S DUE PROCESS CLAUSE
EXTENSION, FOR THERE IT WAS SAID THAT "...  IT IS CERTAIN THAT THE
CONSTITUTION OF THE UNITED STATES CONFERS NO POWER WHATEVER UPON THE
GOVERNMENT OF THE UNITED STATES TO REGULATE MARRIAGE ..."  FN12 

IT IS A DRASTIC DEPARTURE FROM FORMER CONSTITUTIONAL DOCTRINE TO HOLD
THAT THE FEDERAL CONSTITUTION MEASURES THE POWER OF STATE COURTS TO
PASS UPON PETITIONS FOR DIVORCE.  THE JURISDICTION OF STATE COURTS OVER
PERSONS AND THINGS WITHIN THEIR BOUNDARIES HAS BEEN UNIFORMLY
ACKNOWLEDGED THROUGH THE YEARS, WITHOUT REGARD TO THE LENGTH OF THEIR
SOJOURN OR THEIR INTENTION TO REMAIN.  AND THAT JURISDICTION HAS NOT
BEEN THOUGHT TO BE LIMITED BY THE FEDERAL CONSTITUTION.  LEGISLATIVE
DISSOLUTION OF MARRIAGE WAS COMMON IN THE COLONIES AND THE STATES UP TO
THE MIDDLE OF THE NINETEENTH CENTURY.  A LEGISLATIVE DISSOLUTION OF
MARRIAGE, GRANTED WITHOUT NOTICE OR HEARING OF ANY KIND, WAS SUSTAINED
BY THIS COURT LONG AFTER THE FOURTEENTH AMENDMENT WAS ADOPTED.  MAYNARD
V. HILL, 125 U.S. 190; CF. PENNOYER V. NEFF, 95 U.S. 714, 734-735.  THE
PROVISION THAT MADE "DUE PROCESS OF LAW" A PREREQUISITE TO DEPRIVATION
OF "LIFE, LIBERTY, OR PROPERTY" WAS NOT CONSIDERED APPLICABLE TO
PROCEEDINGS TO SEVER THE MARITAL STATUS.  IT WAS ONLY WHEN LEGISLATURES
ATTEMPTED TO CREATE OR DESTROY FINANCIAL OBLIGATIONS INCIDENT TO
MARRIAGE THAT COURTS BEGAN TO CONCLUDE THAT THEIR ACTS ENCROACHED UPON
THE RIGHT TO A JUDICIAL TRIAL IN ACCORDANCE WITH DUE PROCESS.  FN13 THE
COURT'S HOLDING NOW APPEARS TO OVERRULE MAYNARD V. HILL, SUB SILENTIO. 
THIS PERHAPS IS IN KEEPING WITH THE IDEA THAT THE DUE PROCESS CLAUSE IS
A BLANK SHEET OF PAPER PROVIDED FOR COURTS TO MAKE CHANGES IN THE
CONSTITUTION AND THE BILL OF RIGHTS IN ACCORDANCE WITH THEIR IDEAS OF
CIVILIZATION'S DEMANDS.  I SHOULD LEAVE THE POWER OVER DIVORCES IN THE
STATES.  AND IN THE ABSENCE OF FURTHER FEDERAL LEGISLATION UNDER THE
FULL FAITH AND CREDIT CLAUSE, I SHOULD LEAVE THE EFFECT OF DIVORCE
DECREES TO BE DETERMINED AS CONGRESS COMMANDED - ACCORDING TO THE LAWS
AND USAGES OF THE STATE WHERE THE DECREES ARE ENTERED.  FN14 

IMPLICIT IN THE MAJORITY OF THE OPINIONS RENDERED BY THIS AND OTHER
COURTS, WHICH, WHETHER DESIGNEDLY OR NOT, HAVE SET UP OBSTACLES TO THE
PROCUREMENT OF DIVORCES, IS THE ASSUMPTION THAT DIVORCES ARE AN
UNMITIGATED EVIL, AND THAT THE LAW CAN AND SHOULD FORCE UNWILLING
PERSONS TO LIVE WITH EACH OTHER.  OTHERS APPROACH THE PROBLEM AS ONE
WHICH CAN BEST BE MET BY MORAL, ETHICAL AND RELIGIOUS TEACHINGS.  WHICH
VIEWPOINT IS CORRECT IS NOT OUR CONCERN.  I AM CONFIDENT, HOWEVER, THAT
TODAY'S DECISION WILL NO MORE AID IN THE SOLUTION OF THE PROBLEM THAN
THE DRED SCOTT DECISION AIDED IN SETTLING CONTROVERSIES OVER SLAVERY. 
THIS DECISION, I THINK, TAKES THE WRONG ROAD.  FEDERAL COURTS SHOULD
HAVE LESS, NOT MORE, TO DO WITH DIVORCES.  ONLY WHEN ONE STATE REFUSES
TO GIVE THAT FAITH AND CREDIT TO A DIVORCE DECREE WHICH CONGRESS AND
THE CONSTITUTION COMMAND, SHOULD WE ENTER THIS FIELD. 

THE COURT HAS NOT ONLY PERMITTED NORTH CAROLINA TO INVALIDATE A
NEVADA DECREE CONTRARY TO THE LAW AND USAGE OF THAT STATE.  IT HAS
ACTUALLY PLACED THE BURDEN OF ESTABLISHING THE VALIDITY OF THAT DECREE
ON A DEFENDANT CHARGED WITH CRIME.  THE ONLY CONTESTED QUESTION WAS THE
VALIDITY OF THE DECREE, SINCE THE PETITIONERS OPENLY LIVED TOGETHER AS
MAN AND WIFE.  AND THE ONLY ISSUE INVOLVED CONCERNING THAT VALIDITY WAS
DOMICILE.  THE BURDEN OF PROVING THAT SINGLE ISSUE UPON WHICH
PETITIONERS' LIBERTY DEPENDED WAS CAST UPON THEM.  CF. STATE V. HERRON,
175 N.C. 754, 759, 94 S.E. 698.  THE JURY WAS NOT CHARGED THAT THE
STATE MUST PROVE THE DEFENDANTS GUILTY; THEY WERE REQUIRED TO PROVE
THEIR INNOCENCE.  THE RESULT IS THAT A STATE COURT DIVORCE DECREE IS NO
PROTECTION FROM BEING SENT TO PRISON IN ANOTHER STATE UNLESS A
DEFENDANT CHARGED WITH ACTING AS IT AUTHORIZED CAN PROVE THE STATE
COURT RENDERING THE DECREE MADE NO ERROR IN RESOLVING FACTS AS TO
DOMICILE.  STATE COURT JUDGMENTS EXALTED BY THE CONSTITUTION AND BY
CONGRESS ARE THUS DEGRADED TO A LOWLY STATUS BY TODAY'S DECISION. 
STATE COURTS, NO LESS THAN FEDERAL COURTS, WERE RECOGNIZED BY THE
FOUNDING FATHERS AS INSTRUMENTS OF JUSTICE.  I WOULD CONTINUE TO
RECOGNIZE THEM AS SUCH.  AT THE VERY MINIMUM WE SHOULD NOT PERMIT
HOLDERS OF THESE DECREES TO BE CONVICTED OF CRIME UNLESS ANOTHER STATE
SUSTAINED THE BURDEN OF INVALIDATING THEM.  IN A CASE INVOLVING NOTHING
BUT PROPERTY, THIS COURT HAS DECLINED TO PERMIT A SECOND MARRIAGE TO BE
IMPUGNED THROUGH AN ALLEGED PRIOR MARRIAGE "SAVE UPON PROOF SO CLEAR,
STRONG AND UNEQUIVOCAL AS TO PRODUCE A MORAL CONVICTION OF THE
EXISTENCE OF THAT IMPEDIMENT."  SY JOC LIENG V. SY QUIA, 228 U.S. 335,
339.  AND WE DECLINED TO PERMIT A NATURALIZATION DECREE TO BE SET ASIDE
BECAUSE OF AN ABSENCE OF "CLEAR, UNEQUIVOCAL AND CONVINCING EVIDENCE." 
SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 125, 159, 164, 166-170. 
IT IS NO JUSTIFICATION FOR REQUIRING A LESS BURDENSOME REQUIREMENT HERE
TO SAY THAT IN THESE FORMER CASES WE WERE DEALING WITH FEDERAL
QUESTIONS.  THAT IS EXACTLY WHAT IS DONE HERE.  FOR THE BASIC QUESTION
IN THIS CASE REVOLVES AROUND THE FULL FAITH AND CREDIT CONSTITUTIONAL
PROVISION AND THE 1790 CONGRESSIONAL ACT.  THE STANDARD OF PROOF
SUSTAINED IS A FEDERAL, NOT A STATE, STANDARD.  TO REQUIRE A DEFENDANT
IN A CRIMINAL CASE TO CARRY THE BURDEN OF PROOF IN SUSTAINING HIS
DECREE TO PROVE HIS INNOCENCE DEPRIVES HIM OF ALL BUT THE LAST SHRED OF
PROTECTION THAT THE FULL FAITH AND CREDIT CLAUSE AND THE 1790 ACT OF
CONGRESS SOUGHT TO GIVE HIM.  CF. TOT V. UNITED STATES, 319 U.S. 463,
473.  IT MAKES OF HUMAN LIBERTY A VERY CHEAP THING - TOO CHEAP TO BE
CONSISTENT WITH THE PRINCIPLES OF A FREE GOVERNMENT. 

MOREOVER, THE COURT'S UNJUSTIFIABLE DEVITALIZATION OF THE FULL FAITH
AND CREDIT CLAUSE AND THE ACT PASSED PURSUANT TO IT CREATES A SITUATION
WHICH MAKES THE NORTH CAROLINA STATUTE AN INESCAPABLE TRAP FOR ANY
PERSON WHO PLACES THE SLIGHTEST RELIANCE ON ANOTHER STATE'S DIVORCE
DECREE - A SITUATION WHICH A PROPER INTERPRETATION OF THE FEDERAL
QUESTION WOULD AVOID.  THE NORTH CAROLINA STATUTE EXCLUDES FROM ITS
COVERAGE THOSE WHO "HAVE BEEN LAWFULLY DIVORCED."  WHO AFTER TODAY'S
DECISION CAN KNOW OR GUESS WHAT "RIGHT" HE CAN SAFELY EXERCISE UNDER A
DIVORCE DECREE IN THE INTERVENING PERIOD BETWEEN THE DAY OF ITS ENTRY
AND THE DAY OF ITS INVALIDATION BY A JURY?  FN15  THIS COURT HAS SAID
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".  THE NORTH CAROLINA STATUTE, AS
APPLIED TO CONDEMN THESE TWO PETITIONERS TO SERVE PRISON SENTENCES,
FALLS PRECISELY WITHIN THIS DESCRIPTION.  IT DOES SO, BECAUSE THE SOLE
ESSENTIAL CONTESTED ISSUE IN THIS CASE WAS THE VALIDITY OF THE DIVORCE
DECREES.  INVOLVED IN THIS ISSUE ARE QUESTIONS OF LAW MIXED WITH
QUESTIONS OF FACT WHICH PERPLEX LAWYERS AND JUDGES LITTLE LESS THAN
THEY BAFFLE "MEN OF COMMON INTELLIGENCE."  TODAY'S DECISION ADDS NEW
INTRICACIES TO THE WHOLE PROBLEM FOR LAWYERS TO ARGUE ABOUT.  IT
PROVIDES A NEW CONSTITUTIONAL CONCEPT OF "JURISDICTION," WHICH ITSELF
RESTS ON A NEWLY ANNOUNCED FEDERAL "CONCEPT OF DOMICILE."  NO FINAL
DETERMINATION AS TO ITS OWN "JURISDICTION" CAN HEREAFTER BE MADE BY A
STATE COURT IN AN UNCONTESTED DIVORCE CASE.  AND SO FAR AS I CAN TELL,
NO OTHER COURT CAN EVER FINALLY DETERMINE THIS QUESTION.  IT MIGHT DO
SO AS BETWEEN ANY TWO LITIGANTS, BUT I SUPPOSE THE QUESTION OF DOMICILE
WOULD STILL BE LEFT OPEN FOR OTHERS TO CHALLENGE.  A MAN MIGHT BE TRIED
FOR BIGAMY IN TWO OR MORE STATES.  HE MIGHT BE CONVICTED IN ONE OR BOTH
OR ALL, I SUPPOSE.  THE AFFIRMANCE OF THESE CONVICTIONS SHOWS THAT A
DIVORCED PERSON'S LIBERTY, SO FAR AS THIS NORTH CAROLINA STATUTE IS
CONCERNED, HINGES ON HIS ABILITY TO "GUESS" AT WHAT MAY ULTIMATELY BE
THE LEGAL AND FACTUAL CONCLUSION RESULTING FROM A CONSIDERATION OF TWO
OF THE MOST UNCERTAIN WORD SYMBOLS IN ALL THE JUDICIAL LEXICON,
"JURISDICTION" AND "DOMICILE."  WHILE THE DOCTRINE THAT "IGNORANCE OF
THE LAW EXCUSES NO MAN" HAS SOMETIMES BEEN APPLIED WITH HARSH
CONSEQUENCES, AMERICAN COURTS HAVE NOT BEEN IN THE HABIT OF MAKING
IGNORANCE OF LAW THE CRUCIAL AND CONTROLLING ELEMENT IN A PENITENTIARY
OFFENSE.  MEN HAVE FROM TIME TO TIME BEEN SENT TO PRISON FOR VIOLATING
COURT COMMANDS WHICH WERE LATER HELD INVALID.  FN17  IT IS QUITE A
DIFFERENT THING, HOWEVER, TO SEND PEOPLE TO PRISON FOR LACKING THE
CLAIRVOYANT GIFT OF PROPHESYING WHEN ONE JUDGE OR JURY WILL UPSET THE
FINDINGS OF FACT MADE BY ANOTHER.   IN EARLIER TIMES, SOME RULERS
PLACED THEIR CRIMINAL LAWS WHERE THE COMMON MAN COULD NOT SEE THEM, IN
ORDER THAT HE MIGHT BE ENTRAPPED INTO THEIR VIOLATION.  OTHERS IMPOSED
STANDARDS OF CONDUCT IMPOSSIBLE OF ACHIEVEMENT TO THE END THAT THOSE
OBNOXIOUS TO THE RULING POWERS MIGHT BE CONVICTED UNDER THE FORMS OF
LAW.  NO ONE OF THEM EVER PROVIDED A MORE CERTAIN ENTRAPMENT, THAN A
STATUTE WHICH PRESCRIBES A PENITENTIARY PUNISHMENT FOR NOTHING MORE
THAN A LAYMAN'S FAILURE TO PROPHESY WHAT A JUDGE OR JURY WILL DO.  THIS
COURT'S DECISION OF A FEDERAL QUESTION TODAY DOES JUST THAT. 

FN1  PREVIOUS DECISIONS OF THIS COURT HAVE ASSERTED THAT A STATE
CANNOT JUSTIFY ITS REFUSAL TO GIVE ANOTHER STATE'S JUDGMENT FULL FAITH
AND CREDIT, AT LEAST, IN THE ABSENCE OF A SHOWING THAT FRAUD IS AN
ADEQUATE GROUND FOR SETTING THE JUDGMENT ASIDE IN THE STATE WHERE IT
WAS RENDERED.  SEE CHRISTMAS V. RUSSELL, 5 WALL.  290, 302-304; MAXWELL
V. STEWART, 22 WALL.  77, 81; BIGELOW V. OLD DOMINION COPPER CO., 225
U.S. 111, 134. 

FN2  ACCORDING TO THE BEST AVAILABLE STATISTICS MORE THAN FIVE
MILLION DIVORCES WERE GRANTED IN THE LAST TWENTY YEARS AND THE ANNUAL
RATE IS STEADILY INCREASING.  SEE MARRIAGE AND DIVORCE STATISTICS,
BUREAU OF THE CENSUS, 1942, AND THE SAME REPORTS FOR DIFFERENT YEARS;
DIVORCE, DEPRESSION AND WAR, SOCIAL FORCES, UNIVERSITY OF NORTH
CAROLINA PRESS, DEC. 1943, 191, 192; SOCIAL AND STATISTICAL ANALYSIS,
LAW AND CONTEMPORARY PROBLEMS, DUKE UNIVERSITY, SUMMER 1944; 1940
CENSUS, BUREAU OF THE CENSUS, VOL. 4, TABLES 29 AND 48; OGBURN,
MARRIAGES, BIRTHS AND DIVORCES, ANNALS, AMERICAN ACADEMY, SEPT. 1943,
20. 

FN3  THIS PERCENTAGE IS SHOWN BY THE VARIOUS "MARRIAGE AND DIVORCE"
PUBLICATIONS OF THE BUREAU OF THE CENSUS, DEPARTMENT OF COMMERCE. 
CAREFUL STUDIES IN PARTICULAR LOCALITIES HAVE INDICATED THAT THE
PERCENTAGE OF UNCONTESTED DIVORCES IS SUBSTANTIALLY ABOVE THE 85% SHOWN
IN CENSUS REPORTS.  IN MARYLAND, FOR INSTANCE, 3,306 PETITIONS FOR
DIVORCE WERE FILED IN 1929.  1,847 DEFENDANTS FAILED TO ANSWER AND THE
COMPLAINANT HAD DECREES IN ALL BUT SIX CASES.  "A TOTAL OF 1,459
DEFENDANTS, HOWEVER, FILED ANSWERS TO THE PLAINTIFF'S ALLEGATIONS AND
THUS STAGED A TECHNICAL CONTEST.  THIS DOES NOT NECESSARILY MEAN THAT A
GIVEN DEFENDANT WAS OPPOSED TO A DECREE BEING GRANTED.  OF THESE 1,459
TECHNICALLY CONTESTED ACTIONS, 442 DROPPED OUT WITHOUT COMING TO
HEARING, THUS LEAVING 1,017 TECHNICAL CONTESTS IN THE FIELD  ....  IF
WE ACCOMPANY THE PLAINTIFFS IN THE 1,017 REMAINING TECHNICAL CONTESTS
TO THE HEARING, WE FIND LITTLE IN THE WAY OF SUBSTANTIAL CONTEST. 
THERE IS A POSITIVE RECORD OF NO CONTEST IN 808 CASES; OF A CONTEST IN
81 CASES; AND DATA ARE NOT AVAILABLE WITH RESPECT TO CONTEST IN 128
CASES  ....  IT SEEMS LIKELY THAT IN LESS THAN 100 CASES WAS THERE AT
THE HEARING A CONTEST CONCERNING WHETHER A DECREE SHOULD BE GRANTED." 
MARSHALL AND MAY, THE DIVORCE COURT, 226-227. 

FN4  MAGNOLIA PETROLEUM CO. V. HUNT, 320 U.S. 430, 439. 

FN5  LOUGHRAN V. LOUGHRAN, 292 U.S. 216, 223-225; DUDLEY V. DUDLEY,
151 IOWA 142, 130 N.W. 785; EX PART CRANE, 170 MICH. 651, 136 N.W. 587;
SEE RADIN, AUTHENTICATED FULL FAITH AND CREDIT CLAUSE, 39 ILL. L.R. 1,
32.  SEE ALSO ANNOTATIONS, 60 AM. ST. REP. 942; 28 L.R.A.N.S. 754; 127
A.L.R. 437. 

FN6  THIS QUESTION HAS ARISEN MOST FREQUENTLY IN THE APPLICATION OF
STATE LAWS MAKING IT A CRIMINAL OFFENSE FOR PERSONS OF DIFFERENT RACES
TO LIVE TOGETHER AS HUSBAND AND WIFE.  SEE E.G., STATE V. BELL, 7
BAXT.  (TENN.)  9.  THAT CASE HAS BEEN EXPLAINED AS A HOLDING THAT
"WITHOUT DENYING THE VALIDITY OF A MARRIAGE IN ANOTHER STATE, THE
PRIVILEGES FLOWING FROM MARRIAGE MAY BE SUBJECT TO THE LOCAL LAW." 
YARBOROUGH V. YARBOROUGH, 290 U.S. 202, 218.  SEE ALSO GREENHOW V.
JAMES, 80 VA. 636.  CF. PEARSON V. PEARSON, 51 CAL. 120; STATE V. ROSS,
76 N.C. 242; WHITTINGTON V. MCCASKILL, 65 FLA. 162, 61 SO. 236. 

FN7  SEE E.G., FOY V. SMITH'S ESTATE, 58 NEV. 371, 81 P.2D 1065;
DWYER V. NOLAN, 40 WASH. 459, 82 P. 746, 1 L.R.A.N.S. 551; CHAPMAN V.
CHAPMAN, 224 MASS. 427, 113 N.E. 359; MATTER OF BINGHAM, 265 APP. DIV.
463, 39 N.Y.S.2D 756; MOYER V. KOONTZ, 103 WIS. 22, 79 N.W. 50;
LEATHERS V. STEWART, 108 ME. 96, 79 A. 16, ANN. CAS. 1913B, 366, 369
372; KIRSCHNER V. DIETRICH, 110 CAL. 502, 42 P. 1064; SCHOULER DIVORCE
MANUAL, 588-590. 

FN8  HERE TOO WE APPROACH THE DOMAIN WHERE THE LINE MAY BE SHADOWY
BETWEEN THE INDIVIDUAL RIGHTS OF PEOPLE TO CHOOSE AND KEEP THEIR OWN
ASSOCIATES AND THE POWER OF THE STATE TO PRESCRIBE WHO SHALL BE THEIR
MOST INTIMATE ASSOCIATES.  PEOPLE IN THIS COUNTRY DO NOT "BELONG" TO
THE STATE.  LE MESURIER V. LE MESURIER, (1895) A.C. 517.  OUR
CONSTITUTION PRESERVES AN AREA OF INDIVIDUAL FREEDOM WHICH THE STATE
HAS NO RIGHT TO ABRIDGE.  THE FLAVOR OF THE COURT'S OPINION IS THAT A
STATE HAS SUPREME POWER TO CONTROL ITS DOMICILIARIES' CONDUCT WHEREVER
THEY GO AND THAT THE STATE MAY PROHIBIT THEM FROM GETTING A DIVORCE IN
ANOTHER STATE.  IN THIS ASPECT THE DECISION IS NOT CONFINED TO A
HOLDING WHICH RELATES TO STATE AS OPPOSED TO FEDERAL RIGHTS.  IT
CONTAINS A RESTRICTION OF INDIVIDUAL AS OPPOSED TO STATE RIGHTS.  SEE
RADIN, SUPRA, 28-32. 

FN9  GRAY V. BRIGNARDELLO, 1 WALL.  627, 634; COLVIN V. COLVIN, 2
PAIGE (N.Y.)  385; HARPER, THE MYTH OF THE VOID DIVORCE, 2 LAW AND
CONTEMPORARY PROBLEMS, 335; THE VALIDITY OF VOID DIVORCES, 79 U. PA. L.
REV. 158; TAINTER, RESTITUTION OF PROPERTY TRANSFERRED UNDER VOID OR
LATER REVERSED JUDGMENTS, 9 MISS.  L.J. 157. 

FN10  THE NEVADA COURT HAD GENERAL JURISDICTION TO GRANT DIVORCES,
AND THE COMPLAINT WAS REQUIRED TO ALLEGE DOMICILE ALONG WITH THE OTHER
REQUISITE ALLEGATIONS.  DOMICILE IS AS MUCH AN INTEGRAL ELEMENT IN THE
LITIGATION AS THE PROOF OF CRUELTY OR ANY OF THE OTHER STATUTORY
GROUNDS FOR DIVORCE IN NEVADA.  LABELING DOMICILE AS "JURISDICTIONAL"
DOES NOT MAKE IT DIFFERENT FROM WHAT IT WAS BEFORE.  SINCE THE NEVADA
COURT HAD NO POWER TO RENDER A DIVORCE WITHOUT PROOF OF FACTS OTHER
THAN DOMICILE, THERE IS NOTHING TO PREVENT THIS COURT, UNDER ITS
EXPANSIVE INTERPRETATION OF THE DUE PROCESS CLAUSE, FROM LABELING THESE
OTHER FACTS AS "JURISDICTIONAL" AND TAKING MORE STATE POWERS INTO THE
FEDERAL JUDICIAL ORBIT.  BOTH THESE TYPES OF FACTS, HOWEVER LABELED,
WERE PART OF THE CONTROVERSY WHICH THE NEVADA LEGISLATURE GAVE ITS
COURTS POWER TO RESOLVE.  THE STATE COULD LABEL THEM "JURISDICTIONAL"
AND, HAVING THE EXCLUSIVE POWER TO GRANT DIVORCES, COULD ATTACH SUCH
CONSEQUENCES TO THEM AS IT SEES FIT.  BUT, WHILE CONGRESS MIGHT, UNDER
THE FULL FAITH AND CREDIT CLAUSE, PRESCRIBE THE "EFFECT" IN OTHER
STATES, OF DECREES BASED ON THE FINDING, I DO NOT THINK THE FEDERAL
COURTS CAN, BY THEIR MERE LABEL, ATTACH JURISDICTIONAL CONSEQUENCES TO
THE STATE'S REQUIREMENT OF DOMICILE.  HENCE, I THINK THE QUOTED
STATEMENT FROM THE MAGNOLIA PETROLEUM CASE SHOULD CONTROL THIS CASE. 

FN11  STREITWOLF V. STREITWOLF, 181 U.S. 179, DECIDED THE SAME DAY AS
BELL V. BELL, HELD A NORTH DAKOTA DIVORCE DECREE INVALID.  THAT HOLDING
DID NOT REST ON ANY "FEDERAL CONCEPT OF DOMICILE," BUT ON THE FACT THAT
NORTH DAKOTA LAW REQUIRED "A DOMICILE IN GOOD FAITH  ...  FOR NINETY
DAYS AS A PREREQUISITE TO JURISDICTION OF A CASE OF DIVORCE." 

FN12  ANDREWS V. ANDREWS DID NOT ASSERT THAT ANY PARTICULAR FEDERAL
CONSTITUTIONAL PROVISION MADE DOMICILE A STATE JURISDICTIONAL
REQUIREMENT IN DIVORCE CASES.  IT EMPHASIZED STATE AND COMMON LAW
CONCEPTS OF DOMICILE AND A STATE'S POWER OVER ITS "INHABITANTS."  THIS
EMPHASIS LED THE COURT TO PERMIT MASSACHUSETTS TO INVALIDATE A SOUTH
DAKOTA DIVORCE DECREE, EVEN THOUGH BOTH HUSBAND AND WIFE HAD APPEARED
IN THE SOUTH DAKOTA COURT.  CF. DAVIS V. DAVIS, SUPRA.  MASSACHUSETTS
HAD A STATUTE WHICH PROHIBITED ITS "INHABITANTS" FROM GOING INTO
ANOTHER STATE TO GET A DIVORCE ON ACCOUNT OF CONDUCT WHICH OCCURRED IN
MASSACHUSETTS, OR FOR CONDUCT WHICH WOULD NOT HAVE AUTHORIZED A DIVORCE
UNDER MASSACHUSETTS LAW.  THIS STATUTE OBVIOUSLY RESTED ON A HYPOTHESIS
THAT EACH STATE POSSESSES THESE SWEEPING POWERS OVER INDIVIDUALS:  (1)
POWER TO MAKE IT A CRIME FOR ITS INHABITANTS TO GO TO ANOTHER STATE TO
ENGAGE IN CONDUCT WHICH MIGHT BE LAWFUL THERE; (2) POWER TO PUNISH AN
INHABITANT WHO WENT INTO ANOTHER STATE AND ENGAGED IN CONDUCT IN
HARMONY WITH THAT STATE'S LAWS.  IF NORTH CAROLINA HAS ATTEMPTED TO
IMPOSE SUCH SWEEPING STATUTORY PROHIBITION UPON ITS INHABITANTS, IT HAS
NOT BEEN CALLED TO OUR ATTENTION.  IN ITS ABSENCE THE ANDREWS DECISION
GIVES NO SUPPORT TO THE OPINION AND JUDGMENT IN THIS CASE. 

FN13  WRIGHT V. WRIGHT'S LESSEE, 2 MD. 429, 453; CRANE V. MEGINNIS, 1
G. & J. REP. (MD.)  463; DWYER V. NOLAN, SUPRA.  SEE ALSO OWENS V.
CLAYTOR, 56 MD. 129; 2 SCHOULER, MARRIAGE, DIVORCE AND SEPARATION,
SIXTH EDITION, PARS. 1471-1473; VALIDITY OF LEGISLATIVE DIVORCE, 18
L.R.A. 95. 

FN14  FOR AN INTERESTING DISCUSSION OF THE CONSEQUENCES OF SHIFTING
DIVORCES FROM THE LEGISLATURES TO THE COURTS, TO BE WORKED OUT IN THE
PATTERN OF ADVERSARY CONTROVERSIES, SEE MARSHALL AND MAY, SUPRA, CHAP.
VI, THE MIRAGE OF JUDICIAL CONTROVERSY.  FOR BIBLIOGRAPHY OF PERTINENT
DISCUSSIONS SEE SAME, 338-341. 

FN15  THE ANSWER IS THAT, BY REASON OF TODAY'S DECISION, NO PERSON
CAN EXERCISE ANY RIGHT WHATEVER UNDER AN UNCONTESTED DIVORCE DECREE
WITHOUT SUBJECTING HIMSELF TO POSSIBLE PENITENTIARY PUNISHMENT.  "TO
MAKE THE ENJOYMENT OF A RIGHT DEPENDENT UPON AN IMPOSSIBLE CONDITION IS
EQUIVALENT TO AN ABSOLUTE DENIAL OF THE RIGHT UNDER ANY CONDITION, AND
SUCH DENIAL, ENFORCED FOR A PAST ACT, IS NOTHING LESS THAN PUNISHMENT
IMPOSED FOR THAT ACT."  CUMMINGS V. MISSOURI, 4 WALL.  277, 327.  THE
"CONDITION" HERE, THAT A DIVORCED PERSON CANNOT REMARRY WITHOUT THE
POSSIBILITY OF BEING SUBJECTED TO REPEATED PROSECUTIONS IN ALL THE
STATES WHERE HE LIVES AS A MARRIED PERSON, WOULD SEEM TO RANK AS "AN
IMPOSSIBLE CONDITION."  IF, THEREFORE, THE COURT'S OBJECT IS TO MAKE
DIVORCES DANGEROUS, ITS OBJECT HAS BEEN ACCOMPLISHED.  I THINK DIVORCE
POLICY IS THE BUSINESS OF THE PEOPLE AND THEIR LEGISLATURES - NOT THAT
OF THIS COURT. 

FN16  CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, 391.  SEE
ALSO YU CONG ENG V. TRINIDAD, 271 U.S. 500, 518; UNITED STATES V. COHEN
GROCERY CO., 255 U.S. 81, 89-93; LANZETTA V. NEW JERSEY, 306 U.S. 451;
SMITH V. CAHOON, 283 U.S. 553; SCREWS V. UNITED STATES, ANTE, P. 91;
CF. NASH V. UNITED STATES, 229 U.S. 373, 377 WITH CLINE V. FRINK DAIRY
CO., 274 U.S. 445, 457, 463-464. 

FN17  SEE E.G., PEOPLE V. MORLEY, 72 COLO. 421, 211 P. 643; HOLBROOK
V. PRICHARD MOTOR CO., 27 GA. APP. 480, 109 S.E. 164; ST. GEORGE'S
SOCIETY V. SAWYER, 204 IOWA 103, 214 N.W. 877; STATE V. LA FOLLETTE,
100 ORE.  1, 196 P. 412. 

MR. JUSTICE DOUGLAS JOINS IN THIS DISSENT. 
..END :













ESENWEIN V. COMMONWEALTH, 325 U.S. 279 


NO. 20.  ARGUED OCTOBER 12, 13, 1944.  - DECIDED MAY 21, 1945.  - 348
PA. 455, 35 A.2D 335, AFFIRMED. 


1.  RELYING UPON A NEVADA DIVORCE DECREE, PETITIONER APPLIED TO A
PENNSYLVANIA COURT FOR REVOCATION OF AN ORDER FOR THE SUPPORT OF HIS
WIFE.  THE APPLICATION WAS DENIED.  HELD THAT, UPON THE RECORD, THE
PENNSYLVANIA COURT WAS WARRANTED IN FINDING THAT PETITIONER DID NOT
HAVE A BONA FIDE DOMICIL IN NEVADA WHEN HE OBTAINED HIS DECREE OF
DIVORCE; AND THE NEVADA DIVORCE DECREE THEREFORE WAS NOT DENIED THE
FULL FAITH AND CREDIT REQUIRED BY THE CONSTITUTION.  WILLIAMS V. NORTH
CAROLINA, ANTE, P. 226.  P. 280. 

2.  THE CLAIM THAT THE PENNSYLVANIA COURTS DID NOT AFFORD THE
PETITIONER AN OPPORTUNITY TO BE HEARD ON THE QUESTION OF DOMICIL IS
WITHOUT SUPPORT IN THE RECORD.  P. 281. 

ESENWEIN V. COMMONWEALTH EX REL. ESENWEIN. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

CERTIORARI, 322 U.S. 725, TO REVIEW A JUDGMENT WHICH SUSTAINED THE
DENIAL OF PETITIONER'S APPLICATION FOR REVOCATION OF AN ORDER FOR THE
SUPPORT OF HIS WIFE. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE SAME PROBLEM AS THAT WHICH WAS CONSIDERED IN
WILLIAMS V. NORTH CAROLINA, ANTE, P. 226.  THERE ARE MINOR VARIATIONS
OF FACT, BUT THE CONSIDERATIONS WHICH CONTROLLED THE RESULT IN THE
WILLIAMS CASE GOVERN THIS. 

PETITIONER AND RESPONDENT WERE MARRIED IN PENNSYLVANIA IN 1899.  THEY
SEPARATED IN 1919 BUT CONTINUED TO LIVE THERE.  THE WIFE, RESPONDENT,
OBTAINED A SUPPORT ORDER IN THE PENNSYLVANIA COURTS WHICH WAS MODIFIED
FROM TIME TO TIME.  TWICE THE PETITIONER SOUGHT A DIVORCE IN
PENNSYLVANIA AND FAILED.  IN 1941 HE WENT TO NEVADA, ARRIVING AT LAS
VEGAS ON JUNE 23RD.  SIX WEEKS LATER, PROMPTLY WITHIN THE MINIMUM
PERIOD ALLOWED BY NEVADA LAW, HE THERE FILED A SUIT FOR DIVORCE.  IT
WAS GRANTED SEPTEMBER 8TH.  SHORTLY THEREAFTER, EARLY IN OCTOBER, HE
LEFT NEVADA AND TOOK UP HIS RESIDENCE IN CLEVELAND, OHIO, WHERE HE MADE
HIS HOME.  ON FEBRUARY 1, 1943 PETITIONER FILED AN APPLICATION BEFORE
THE COUNTY COURT FOR ALLEGHENY COUNTY, PENNSYLVANIA, FOR TOTAL RELIEF
FROM THE SUPPORT ORDER.  HE DID SO ON THE BASIS OF THE DECISION IN
WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, WHICH HAD BEEN DECIDED ON
DECEMBER 21, 1942.  EXEMPLIFIED COPIES OF THE NEVADA PROCEEDINGS, WITH
OTHER RELEVANT EVIDENCE, WERE SUBMITTED TO THE COUNTY COURT, WHICH,
AFTER ARGUMENT, DENIED THE APPLICATION.  ITS DECISION WAS AFFIRMED BY
THE SUPERIOR COURT ON THE GROUND THAT PETITIONER DID NOT HAVE A BONA
FIDE DOMICIL IN NEVADA WHEN HE OBTAINED HIS DECREE OF DIVORCE.  153 PA.
SUPER.  69, 33 A.2D 675.  THIS WAS SUSTAINED BY THE SUPREME COURT OF
PENNSYLVANIA, 348 PA. 455, 35 A.2D 335, AND WE THEN GRANTED
CERTIORARI.  322 U.S. 725. 

SINCE, ACCORDING TO PENNSYLVANIA LAW, A SUPPORT ORDER DOES NOT
SURVIVE DIVORCE, COMMONWEALTH V. PARKER, 59 PA. SUPER.  74;
COMMONWEALTH V. KURNIKER, 96 PA. SUPER.  553, THE EFFICACY OF THE
NEVADA DIVORCE IN PENNSYLVANIA IS THE DECISIVE QUESTION IN THE CASE. 
THE FACTS RELATING TO DOMICIL ARE NOT ESSENTIALLY DIFFERENT FROM THOSE
SET FORTH IN WILLIAMS V. NORTH CAROLINA, ANTE, P. 226, EXCEPT THAT
PETITIONER, INSTEAD OF STAYING IN AN AUTO COURT, LIVED IN A HOTEL AND
DID NOT RETURN TO PENNSYLVANIA, HIS DOMICILIARY STATE BEFORE HE CAME TO
NEVADA, BUT WENT TO OHIO. 

THE FULL FAITH AND CREDIT CLAUSE PLACED THE PENNSYLVANIA COURTS UNDER
DUTY TO ACCORD PRIMA FACIE VALIDITY TO THE NEVADA DECREE.  THE BURDEN
IS ON THE LITIGANT WHO WOULD ESCAPE THE OPERATION OF A JUDGMENT DECREED
IN ANOTHER STATE.  PENNSYLVANIA RECOGNIZED THAT BURDEN, BUT ITS COURTS
WERE WARRANTED IN FINDING THAT THE RESPONDENT SUSTAINED HER BURDEN OF
IMPEACHING THE FOUNDATION OF THE NEVADA DECREE ON THE JURISDICTIONAL
PREREQUISITE OF BONA FIDE DOMICIL.  THE PENNSYLVANIA SUPREME COURT
RIGHTLY INDICATED THAT IF MERELY THE NEVADA DECREE HAD BEEN IN
EVIDENCE, IT WAS ENTITLED TO CARRY THE DAY.  BUT THE SUPREME COURT
FOUND THAT ON THE ENTIRE SHOWING THERE WAS CONVINCING COUNTERVAILING
EVIDENCE TO DISPROVE PETITIONER'S INTENTION TO ESTABLISH A DOMICIL IN
NEVADA.  THE PENNSYLVANIA COURTS HAVE VIEWED THEIR CONSTITUTIONAL DUTY
CORRECTLY.  IT IS NOT FOR US TO RETRY THE FACTS, AND WE CANNOT SAY THAT
IN REACHING THEIR CONCLUSION THE PENNSYLVANIA COURTS DID NOT HAVE
WARRANT IN EVIDENCE AND DID NOT FAIRLY WEIGH THE FACTS. 

PETITIONER MAKES A SUBSIDIARY CLAIM WHICH NEED NOT DETAIN US LONG. 
HE ASSERTS THAT HE HAD NO NOTICE THAT THE NEVADA DOMICIL WAS TO BE PUT
IN ISSUE, AND THAT THEREFORE IT WAS UNFAIR TO DECIDE THAT QUESTION ON
THIS RECORD.  HE POINTS TO THE FACT THAT FOR ITS DECISION THE COUNTY
COURT RELIED ON THE PENNSYLVANIA DENIALS OF DIVORCE AS RES JUDICATA,
WHEREAS THE APPELLATE COURTS RESTED THEIR DECISIONS ON THE ISSUE OF
DOMICIL.  SINCE THE RECORD DOES NOT SUPPORT THE BASIS OF THIS CLAIM, WE
ARE RELIEVED FROM CONSIDERING ITS LEGAL SIGNIFICANCE.  THE ISSUE OF
DOMICIL WAS APPROPRIATELY PLEADED IN DEFENSE, IT WAS CONTESTED AT THE
TRIAL, AND BEFORE THE SUPERIOR COURT PETITIONER FILED A SUPPLEMENTAL
BRIEF ON THAT ISSUE.  A CLAIM OF DEPRIVATION OF OPPORTUNITY TO BE HEARD
ON THE QUESTION OF DOMICIL BEFORE THE PENNSYLVANIA COURTS IS WITHOUT
MERIT.  AFFIRMED. 

MR. JUSTICE DOUGLAS, CONCURRING. 

I THINK IT IS IMPORTANT TO KEEP IN MIND A BASIC DIFFERENCE BETWEEN
THE PROBLEM OF MARITAL CAPACITY AND THE PROBLEM OF SUPPORT. 

WE HELD IN WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, THAT A NEVADA
DIVORCE DECREE GRANTED TO A SPOUSE DOMICILED THERE WAS ENTITLED TO FULL
FAITH AND CREDIT IN NORTH CAROLINA.  THAT CASE INVOLVED THE QUESTION OF
MARITAL CAPACITY.  THE SPOUSE WHO OBTAINED THE NEVADA DECREE WAS BEING
PROSECUTED IN NORTH CAROLINA FOR LIVING WITH THE ONE WOMAN WHOM NEVADA
RECOGNIZED AS HIS LAWFUL WIFE.  QUITE DIFFERENT CONSIDERATIONS WOULD
HAVE BEEN PRESENTED IF NORTH CAROLINA HAD MERELY SOUGHT TO COMPEL THE
HUSBAND TO SUPPORT HIS DESERTED WIFE AND CHILDREN, WHETHER THE NEVADA
DECREE HAD MADE NO PROVISION FOR THE SUPPORT OF THE FORMER WIFE AND
CHILDREN OR HAD PROVIDED AN AMOUNT DEEMED INSUFFICIENT BY NORTH
CAROLINA.  IN OTHER WORDS, IT IS NOT APPARENT THAT THE SPOUSE WHO
OBTAINED THE DECREE CAN DEFEAT AN ACTION FOR MAINTENANCE OR SUPPORT IN
ANOTHER STATE BY SHOWING THAT HE WAS DOMICILED IN THE STATE WHICH
AWARDED HIM THE DIVORCE DECREE.  IT IS ONE THING IF THE SPOUSE FROM
WHOM THE DECREE OF DIVORCE IS OBTAINED APPEARS OR IS PERSONALLY
SERVED.  SEE YARBOROUGH V. YARBOROUGH, 290 U.S. 202; DAVIS V. DAVIS,
305 U.S. 32.  BUT I AM NOT CONVINCED THAT IN ABSENCE OF AN APPEARANCE
OR PERSONAL SERVICE THE DECREE NEED BE GIVEN FULL FAITH AND CREDIT WHEN
IT COMES TO MAINTENANCE OR SUPPORT OF THE OTHER SPOUSE OR THE
CHILDREN.  SEE PENNOYER V. NEFF, 95 U.S. 714.  THE PROBLEM UNDER THE
FULL FAITH AND CREDIT CLAUSE IS TO ACCOMMODATE AS FULLY AS POSSIBLE THE
CONFLICTING INTERESTS OF THE TWO STATES.  SEE MAGNOLIA PETROLEUM CO. V.
HUNT, 320 U.S. 430, 447(DISSENTING OPINION).  THE QUESTION OF MARITAL
CAPACITY WILL OFTEN RAISE AN IRRECONCILABLE CONFLICT BETWEEN THE
POLICIES OF THE TWO STATES.  SEE WILLIAMS V. NORTH CAROLINA, SUPRA.
ONE MUST GIVE WAY IN THE LARGER INTEREST OF THE FEDERAL UNION.  BUT THE
SAME CONFLICT IS NOT NECESSARILY PRESENT WHEN IT COMES TO MAINTENANCE
OR SUPPORT.  THE STATE WHERE THE DESERTED WIFE IS DOMICILED HAS A DEEP
CONCERN IN THE WELFARE OF THE FAMILY DESERTED BY THE HEAD OF THE
HOUSEHOLD.  IF HE IS REQUIRED TO SUPPORT HIS FORMER WIFE, HE IS NOT
MADE A BIGAMIST AND THE OFFSPRING OF HIS SECOND MARRIAGE ARE NOT
BASTARDIZED.  IN THAT VIEW PENNSYLVANIA IN THIS CASE MIGHT REFUSE TO
ALTER ITS FORMER ORDER OF SUPPORT OR MIGHT ENLARGE IT, EVEN THOUGH
NEVADA IN WHICH THE OTHER SPOUSE WAS DOMICILED AND OBTAINED HIS DIVORCE
MADE A DIFFERENT PROVISION FOR SUPPORT OR NONE AT ALL.  SEE RADIN, THE
AUTHENTICATED FULL FAITH AND CREDIT CLAUSE, 39 ILL. L. REV. 1, 28. 

MR. JUSTICE BLACK JOINS IN THIS OPINION. 

MR. JUSTICE RUTLEDGE, CONCURRING. 

IN ACCORDANCE WITH THE VIEWS WHICH I HAVE EXPRESSED IN WILLIAMS V.
NORTH CAROLINA, ANTE, P. 226, I DO NOT THINK FULL FAITH AND CREDIT HAVE
BEEN GIVEN BY THE PENNSYLVANIA COURTS TO THE NEVADA DECREE IN THIS
CASE.  BUT UPON THE BASIS OF THE COURT'S DECISION IN THAT CASE, MADE
APPLICABLE ALSO IN THIS ONE, I CONCUR IN THE RESULT.  IN DOING SO,
HOWEVER, IT IS APPROPRIATE TO INDICATE MY AGREEMENT WITH THE VIEWS
EXPRESSED IN THE CONCURRING OPINION OF MR. JUSTICE DOUGLAS THAT THE
JURISDICTIONAL FOUNDATION FOR A DECREE IN ONE STATE CAPABLE OF
FORECLOSING AN ACTION FOR MAINTENANCE OR SUPPORT IN ANOTHER MAY BE
DIFFERENT FROM THAT REQUIRED TO ALTER MARITAL STATUS WITH
EXTRATERRITORIAL EFFECT. 
..END :









COMM'R V. ESTATE OF BEDFORD, 325 U.S. 283 


NO. 710.  ARGUED MARCH 29, 1945.  - DECIDED MAY 21, 1945.  - 144 F.2D
272, REVERSED. 


1.  A PETITION FOR A WRIT OF CERTIORARI TO REVIEW A DECISION OF THE
CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT WAS FILED WITHIN THREE
MONTHS AFTER "ENTRY" OF THE "JUDGMENT," AS REQUIRED BY SEC. 8 OF THE
ACT OF FEBRUARY 13, 1925, WHEN FILED WITHIN THREE MONTHS AFTER THE DATE
OF THAT COURT'S "ORDER FOR MANDATE," THOUGH MORE THAN THREE MONTHS
AFTER THE DATE OF THE "OPINION."  P. 287. 

2.  A DISTRIBUTION OF CASH OUT OF EARNINGS AND PROFITS OF A
CORPORATION, PURSUANT TO A RECAPITALIZATION WHICH WAS A REORGANIZATION
AS DEFINED BY SEC. 112(G) OF THE REVENUE ACT OF 1936, HELD TO HAVE HAD
THE "EFFECT OF THE DISTRIBUTION OF A TAXABLE DIVIDEND" WITHIN THE
MEANING OF SEC. 112(C)(2), AND TO BE TAXABLE IN FULL UNDER THAT SECTION
AND NOT AS A CAPITAL GAIN UNDER SEC. 112(C)(1).  P. 290. 

3.  THE RESULT HERE IS THE SAME WHETHER THE CASE BE TREATED AS ONE OF
STATUTORY CONSTRUCTION FOR THE INDEPENDENT JUDGMENT OF THIS COURT, OR
AS ONE WITHIN THE PRINCIPLE OF DOBSON V. COMMISSIONER.  P. 292. 

COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF BEDFORD ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 707, TO REVIEW A JUDGMENT REVERSING A DECISION
OF THE TAX COURT, 1 T.C. 478, WHICH SUSTAINED THE COMMISSIONER'S
DETERMINATION OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

AT THE THRESHOLD, THE JURISDICTION OF THE COURT IS CHALLENGED ON THE
GROUND THAT THE PETITION FOR THE WRIT OF CERTIORARI WAS NOT FILED
WITHIN THREE MONTHS AFTER "ENTRY" OF THE "JUDGMENT" BELOW AS REQUIRED
BY THE JUDICIARY ACT OF FEBRUARY 13, 1925.  FN1 

THE STEPS BY WHICH THE CASE CAME HERE ARE THESE.  ON AUGUST 8, 1944,
THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT FILED A DOCUMENT
ENTITLED "OPINION"; ON THE SAME DAY, THE CLERK MADE A DOCKET ENTRY
READING, "ORDER REVERSED, A. N. HAND, C.J."; ON AUGUST 29, 1944, A
DOCUMENT ENTITLED "ORDER FOR MANDATE" WAS FILED, AND THE MANDATE ISSUED
THAT DAY; ON NOVEMBER 29, 1944, THE PETITION FOR WRIT OF CERTIORARI WAS
FILED.  THE PETITION WAS FILED TOO LATE IF THE "OPINION," AS RESPONDENT
CONTENDS, CONSTITUTES THE "JUDGMENT."  IT WAS FILED IN TIME IF THE
"ORDER FOR MANDATE" MAY PROPERLY BE DEEMED THE "JUDGMENT."  THE ISSUE
WAS ABLY PRESSED BEFORE US, AND, SINCE IT CONCERNS OUR POWER TO REVIEW
CASES COMING FROM WHAT IS PERHAPS THE BUSIEST CIRCUIT, IT CALLS FOR
MORE THAN SUMMARY TREATMENT. 

EVEN LONG CONTINUED PRACTICE CANNOT ALTER THE LIMITS WITHIN WHICH
CONGRESS HAD BOUND THE APPELLATE JURISDICTION OF THIS COURT.  SEE DEPT.
OF BANKING V. PINK, 317 U.S. 264.  BUT SUCH PRACTICE MAY BE DECISIVE IN
INTERPRETING PROCEDURAL WAYS WHICH, AS A MATTER OF DIALECTIC OR
ABSTRACT ANALYSIS, MAY APPEAR DUBIOUS.  WE ARE NATURALLY IMPRESSED BY
THE COMMON UNDERSTANDING THAT IN THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT THE SO-CALLED "ORDER FOR MANDATE" IS DEEMED THE
JUDGMENT.  ROBERTSON AND KIRKHAM, JURISDICTION OF THE SUPREME COURT OF
THE UNITED STATES (1936) SEC. 384.  WE HAVE TAKEN AND DECIDED AS A
MATTER OF COURSE A CONSIDERABLE NUMBER OF CASES IN WHICH CERTIORARI WAS
SOUGHT WITHIN THREE MONTHS AFTER ENTRY OF THE "ORDER FOR MANDATE" BUT
NOT WITHIN THREE MONTHS AFTER THE "OPINION."  FN2  THIS PRACTICAL
UNDERSTANDING OF THE CONTROLLING SIGNIFICANCE, FOR APPELLATE PURPOSES,
OF THE "ORDER FOR MANDATE" IS SUPPORTED AND CERTAINLY NOT CONTRADICTED
BY ALL THAT IS CONVEYED BY THE "OPINION" AND "ORDER FOR MANDATE" AND
THE RULES OF THE LOWER COURT. 

IT DOES NOT DETRACT FROM THE "OPINION" AS AN OPINION THAT IN ITS
HEADING IT GIVES AS DATES "ARGUED JANUARY 6, 1944.  DECIDED AUGUST 8,
1944," AND THAT IT CONCLUDES WITH "THE ORDER OF THE TAX COURT IS
REVERSED."  THE SAME OR SIMILAR PHRASES ARE COMMONLY EMPLOYED IN
OPINIONS OF THIS COURT WITHOUT CHANGING THEIR CHARACTER AS OPINIONS. 
NOR DO LIKE PHRASES IN THE OPINIONS OF THE OTHER CIRCUIT COURTS OF
APPEALS TURN THEM INTO JUDGMENTS, SINCE IN ALL OTHER CIRCUITS JUDGMENT
ORDERS ARE SEPARATELY FILED.  IN SPITE OF ITS TITLE, THE "ORDER FOR
MANDATE" ON ITS FACE FULFILLS THE FUNCTION OF SUCH A JUDGMENT ORDER. 
IT RECITES THAT "IT IS NOW HEREBY ORDERED, ADJUDGED, AND DECREED THAT
THE ORDER OF SAID THE TAX COURT OF THE UNITED STATES BE AND IT HEREBY
IS REVERSED. 

"IT IS FURTHER ORDERED THAT A MANDATE ISSUE TO THE SAID THE TAX COURT
OF THE UNITED STATES IN ACCORDANCE WITH THIS DECREE. 

                                    ALEXANDER M. BELL,

                                                  CLERK. 

                                 BY A. DANIEL FUSARO,

                                       DEPUTY CLERK." 

THIS LANGUAGE PLAINLY IMPORTS THAT THIS IS THE JUDGMENT AND THAT IT
IS THEN BEING RENDERED.  NOR DOES THE FACT THAT THE ORDER WAS PREPARED
BY THE CLERK AND BEARS HIS SIGNATURE DETRACT FROM ITS QUALITY AS A
JUDGMENT.  A JUDGMENT "IS THE ACT OF THE COURT," EX PARTE MORGAN, 114
U.S. 174, 175, EVEN THOUGH A CLERK DOES ALL OF THE MINISTERIAL ACTS, AS
HERE, IN CONFORMITY WITH HIS COURT'S STANDING INSTRUCTIONS. 

THE RULES OF THE COURT BELOW GOVERNING OPINIONS, REHEARINGS, ISSUANCE
OF MANDATE AND STAY OF MANDATE ARE INVOKED TO SHOW THAT THE "OPINION"
IS THE APPEALABLE "JUDGMENT."  THESE RULES, LIKE OTHER RULES, ARE NOT
PHRASED WITH SUCH FASTIDIOUS PRECISION AS TO MAKE OF ALL THE PARTS A
PERFECT HARMONY.  BUT WHILE SUBSTANTIAL DEBATING POINTS MAY BE TAKEN,
FN3  NOTHING IN THESE RULES CONTRADICTS THE NATURAL MEANING YIELDED BY
THE TERMS OF THE "OPINION" AND THE "ORDER FOR MANDATE," AS REFLECTED IN
THE PRACTICE OF THE SECOND CIRCUIT AND IN OUR OWN, WHICH TREATS NOT THE
"OPINION" BUT THE "ORDER FOR MANDATE" AS THE ORDER OF JUDGMENT.  THE
RULES WOULD HAVE TO BE FAR LESS ARTISTIC THAN THEY ARE TO WARRANT US IN
HOLDING THAT THE CIRCUIT COURT OF APPEALS HAS CONSISTENTLY
MISINTERPRETED SOME OF ITS OWN RULES.  WHETHER THE ANNOUNCEMENT OF AN
OPINION AND ITS ENTRY IN THE DOCKET AMOUNTS TO A JUDGMENT FOR PURPOSES
OF APPEAL OR WHETHER THAT MUST AWAIT SOME LATER FORMAL ACT, OUGHT NOT
TO BE DECIDED ON NICE-SPUN ARGUMENTATION IN DISREGARD OF THE JUDICIAL
HABITS OF THE COURT WHOSE JUDGMENT IS CALLED INTO QUESTION, OF THE BAR
PRACTISING BEFORE IT, OF THE CLERK WHO EMBODIES ITS PROCEDURAL
TRADITIONS, AS WELL AS IN CONFLICT WITH THE ASSUMPTION OF THE REVIEWING
COURT. 

BUT NOW THAT THE EXISTING PRACTICE HAS REVEALED ABSTRACT
DISHARMONIES, IF NOT DIFFICULTIES, THE CIRCUIT COURT OF APPEALS WILL
DOUBTLESS ESTABLISH A MORE TIDY SYSTEM FOR MEETING THE TECHNICAL
REQUIREMENTS FOR REVIEW HERE.  THE NORMAL TIME FOR ENTERING A JUDGMENT,
AS THE STARTING POINT FOR DETERMINING WHETHER REVIEW WILL BE SOUGHT OR
WHETHER THERE HAS BEEN ACQUIESCENCE IN A JUDGMENT, SHOULD BE FIXED. 
THE UNCERTAINTIES INHERENT IN LITIGATION SHOULD NOT BE NEEDLESSLY
PROLONGED.  THE ENTRY OF THE "ORDER FOR MANDATE," WHICH IN THE SECOND
CIRCUIT BEINGS THE RUNNING OF THE PERIOD FOR APPEAL, IS APPARENTLY
VARIABLE AND VAGRANT.  IN THESE DAYS OF RAPID COMMUNICATION, THE
STATUTORY ALLOWANCE OF THREE MONTHS IS MORE THAN AMPLE FOR AN
UNSUCCESSFUL LITIGANT TO DETERMINE WHETHER TO SEEK FURTHER REVIEW.  SO
LONG A PERIOD OUGHT NOT TO BE EXTENDED BY DELAY IN ENTERING A JUDGMENT
NOR SHOULD THE BURDEN OF SECURING SUCH ENTRY BE PUT UPON THE SUCCESSFUL
LITIGANT.  THERE ARE BOUND TO BE DIVERSITIES IN THE MODES OF RENDERING
AND RECORDING JUDGMENTS OF THE FORTY-EIGHT SYSTEMS OF STATE COURTS. 
UNIFORMITY IN THE ENTRY OF JUDGMENT AMONG THE ELEVEN CIRCUITS FORMING
THE SINGLE FEDERAL JUDICATURE OUGHT TO BE CAPABLE OF ACHIEVEMENT
WITHOUT LOSS TO THE GEOGRAPHIC FLEXIBILITY OF THE SYSTEM. 

THIS BRINGS US TO THE MERITS, WHICH INVOLVE THE VALIDITY OF AN INCOME
TAX DEFICIENCY ASSESSMENT FOR 1937.  THE CASE IS THIS.  THE ESTATE OF
EDWARD T. BEDFORD, WHO DIED MAY 21, 1931, INCLUDED 3,000 SHARES OF
CUMULATIVE PREFERRED STOCK (PAR VALUE $100) OF ABERCROMBIE & FITCH
COMPANY.  PURSUANT TO A PLAN OF RECAPITALIZATION RESPONDENT, AS
EXECUTOR OF THE ESTATE, IN 1937 EXCHANGED THOSE SHARES FOR 3,500 SHARES
OF CUMULATIVE PREFERRED STOCK (PAR VALUE $75), 1,500 SHARES OF COMMON
STOCK (PAR VALUE $1), AND $45,240 IN CASH (ON THE BASIS OF $15.08 FOR
EACH OF THE OLD PREFERRED SHARES).  THE RECAPITALIZATION HAD BEEN
PROPOSED BECAUSE THE COMPANY, AFTER CHARGING AGAINST ITS SURPLUS
ACCOUNT STOCK DIVIDENDS TOTALING $844,100, DISTRIBUTED IN 1920, 1928,
AND 1930, HAD INCURRED A BOOK DEFICIT IN THAT ACCOUNT OF $399,771.87. 
BECAUSE OF THIS DEFICIT, THE COMPANY, UNDER APPLICABLE STATE LAW, WAS
UNABLE TO PAY DIVIDENDS ALTHOUGH FOR THE FISCAL YEAR ENDING JANUARY 31,
1937 IT HAD NET EARNINGS OF $309,073.70. 

BY COMPARING THE FAIR MARKET VALUE OF THE OLD PREFERRED SHARES AT THE
DATE OF BEDFORD'S DEATH WITH THE MARKET VALUE OF THE NEW STOCK AND CASH
RECEIVED THE GAIN TO HIS ESTATE WAS $139,740.  ADMITTEDLY THE
RECAPITALIZATION WAS A REORGANIZATION, SEC. 112(G)(1)(D) OF THE REVENUE
ACT OF 1936, 49 STAT. 1648, 1681, 26 U.S.C. SEC. 112(G)(1)(E), SO THAT
ONLY THE CASH RECEIVED, BUT NONE OF THE STOCK, IS TAXABLE.  SECTIONS
112(B)(3), 112(C)(1), 49 STAT. 1648, 1679, 1680, 26 U.S.C. SECS.
112(B)(3), 112(C)(1).  THE SOLE ISSUE IS WHETHER THE CASH, $45,240, IS
TAXABLE AS A DIVIDEND, OR MERELY AS A CAPITAL GAIN TO THE EXTENT OF
40%.  THE TAX COURT SUSTAINED THE DETERMINATION OF THE COMMISSIONER
THAT THE CASH WAS TAXABLE AS A DIVIDEND, 1 T.C. 478, BUT WAS REVERSED
BY THE CIRCUIT COURT OF APPEALS.  144 F.2D 272.  ON A SHOWING OF
IMPORTANCE TO THE ADMINISTRATION OF THE REVENUE ACTS, WE GRANTED
CERTIORARI.  323 U.S. 707. 

THE PRECISE QUESTION IS WHETHER THE DISTRIBUTION OF CASH IN THIS
RECAPITALIZATION "HAS THE EFFECT OF THE DISTRIBUTION OF A TAXABLE
DIVIDEND" UNDER SEC. 112(C)(2) OF THE REVENUE ACT OF 1936 AND AS SUCH
IS FULLY TAXABLE, OR IS TAXABLE ONLY AT THE RATE OF 40% AS A CAPITAL
GAIN UNDER SEC. 112(C)(1) OF THAT ACT.  THE RELEVANT PROVISIONS READ:
"(C) GAIN FROM EXCHANGES NOT SOLELY IN KIND.  - (1)  IF AN EXCHANGE
WOULD BE WITHIN THE PROVISIONS OF SUBSECTION (B)(1), (2), (3), OR (5)
OF THIS SECTION IF IT WERE NOT FOR THE FACT THAT THE PROPERTY RECEIVED
IN EXCHANGE CONSISTS NOT ONLY OF PROPERTY PERMITTED BY SUCH PARAGRAPH
TO BE RECEIVED WITHOUT THE RECOGNITION OF GAIN, BUT ALSO OF OTHER
PROPERTY OR MONTY, THEN THE GAIN, IF ANY, TO THE RECIPIENT SHALL BE
RECOGNIZED, BUT IN AN AMOUNT NOT IN EXCESS OF THE SUM OF SUCH MONEY AND
THE FAIR MARKET VALUE OF SUCH OTHER PROPERTY.  (2)  IF A DISTRIBUTION
MADE IN PURSUANCE OF A PLAN OF REORGANIZATION IS WITHIN THE PROVISIONS
OF PARAGRAPH (1) OF THIS SUBSECTION BUT HAS THE EFFECT OF THE
DISTRIBUTION OF A TAXABLE DIVIDEND, THEN THERE SHALL BE TAXED AS A
DIVIDEND TO EACH DISTRIBUTEE SUCH AN AMOUNT OF THE GAIN RECOGNIZED
UNDER PARAGRAPH (1) AS IS NOT IN EXCESS OF HIS RATABLE SHARE OF THE
UNDISTRIBUTED EARNINGS AND PROFITS OF THE CORPORATION ACCUMULATED AFTER
FEBRUARY 28, 1913.  THE REMAINDER, IF ANY, OF THE GAIN RECOGNIZED UNDER
PARAGRAPH (1) SHALL BE TAXED AS A GAIN FROM THE EXCHANGE OF PROPERTY." 

THE HISTORY OF THIS LEGISLATION IS NOT ILLUMINATING.  SECTION
112(C)(2) ORIGINATED IN SEC. 203(D)(2) OF THE REVENUE ACT OF 1924, 43
STAT. 253, 257.  BUT THE REPORTS OF THE CONGRESSIONAL COMMITTEES MERELY
USE THE LANGUAGE OF THE SECTION TO EXPLAIN IT.  H. REP. NO. 179, 68TH
CONG., 1ST SESS., PP. 14-15; S. REP. NO. 398, 68TH CONG., 1ST SESS.,
PP. 15-16.  NOR DOES THE APPLICABLE TREASURY REGULATION ADD ANYTHING;
IT REPEATS SUBSTANTIALLY THE COMMITTEE REPORTS.  TREAS. REG. 94, ART.
112(G)-4.  WE ARE THROWN BACK UPON THE LEGISLATIVE LANGUAGE FOR
ASCERTAINING THE MEANING WHICH WILL BEST ACCORD WITH THE AIMS OF THE
LANGUAGE, THE PRACTICAL ADMINISTRATION OF THE LAW AND RELEVANT JUDICIAL
CONSTRUCTION. 

ALTHOUGH ABERCROMBIE & FITCH SHOWED A BOOK DEFICIT IN THE SURPLUS
ACCOUNT BECAUSE THE EARLIER STOCK DIVIDENDS HAD BEEN CHARGED AGAINST
IT, THE PARTIES AGREE THAT FOR CORPORATE TAX PURPOSES AT LEAST EARNINGS
AND PROFITS EXCEEDING THE DISTRIBUTED CASH HAD BEEN EARNED AT THE TIME
OF THE RECAPITALIZATION.  THAT CASH THEREFORE CAME OUT OF EARNINGS AND
PROFITS AND SUCH A DISTRIBUTION WOULD NORMALLY BE CONSIDERED A TAXABLE
DIVIDEND, SEE SEC. 115(A),  FN4  AND HAS SO BEEN TREATED BY THE COURTS
IN SEEMINGLY SIMILAR SITUATIONS.  IT HAS BEEN RULED IN A SERIES OF
CASES THAT WHERE THE STOCK OF ONE CORPORATION WAS EXCHANGED FOR THE
STOCK OF ANOTHER AND CASH AND THEN DISTRIBUTED, SUCH DISTRIBUTIONS OUT
OF EARNINGS AND PROFITS HAD THE EFFECT OF A DISTRIBUTION OF A TAXABLE
DIVIDEND UNDER SEC. 112(C)(2).  COMM'R V. OWENS, 69 F.2D 597; COMM'R V.
FORHAN REALTY CORP., 75 F.2D 268; ROSE V. LITTLE INVESTMENT CO., 86
F.2D 50; LOVE V. COMM'R, 113 F.2D 236; CAMPBELL V. UNITED STATES, 144
F.2D 177.  THE TAX COURT HAS REACHED THE SAME RESULT, THAT IS, HAS
TREATED THE DISTRIBUTION AS A TAXABLE DIVIDEND, IN THE CASE OF THE
RECAPITALIZATION OF A SINGLE CORPORATION.  MCCORD V. COMM'R, 31 B.T.A.
342, 344; J. WEINGARTEN, INC. V. COMM'R, 44 B.T.A. 798, 808-809; KNAPP
MONARCH CO. V. COMM'R, 1 T.C. 59, 69-70, AFFIRMED ON OTHER GROUNDS, 139
F.2D 863.  WE CANNOT DISTINGUISH THE TWO SITUATIONS AND FIND NO
IMPLICATION IN THE STATUTE RESTRICTING SEC. 112(C)(2) TO TAXATION AS A
DIVIDEND ONLY IN THE CASE OF AN EXCHANGE OF STOCK AND ASSETS OF TWO
CORPORATIONS. 

RESPONDENT, HOWEVER, CLAIMS THAT THIS DISTRIBUTION MORE NEARLY HAS
THE EFFECT OF A "PARTIAL LIQUIDATION" AS DEFINED IN SEC. 115(I).  FN5
BUT THE CLASSIFICATIONS OF SEC. 115, WHICH GOVERNS "DISTRIBUTIONS OF
CORPORATIONS" APART FROM REORGANIZATIONS, WERE ADOPTED FOR ANOTHER
PURPOSE.  THEY DO NOT APPLY TO A SITUATION ARISING WITHIN SEC. 112. 
THE DEFINITION OF A "PARTIAL LIQUIDATION" IN SEC. 115(I) IS
SPECIFICALLY LIMITED TO USE IN SEC. 115.  TO ATTEMPT TO CARRY IT OVER
TO SEC. 112 WOULD DISTORT ITS PURPOSE.  THAT LIMITATION IS NOT TRUE OF
SEC. 115(A) WHICH DEFINES "DIVIDEND" FOR THE PURPOSE OF THE WHOLE
TITLE.  ACCORDINGLY, THIS DEFINITION IS INFUSED INTO SEC. 112(C)(2). 
UNDER SEC. 115(A) A DISTRIBUTION OUT OF ACCUMULATED EARNINGS AND
PROFITS IS A "DIVIDEND," THUS CONFIRMING THE CONCLUSION THAT A
DISTRIBUTION OF EARNINGS AND PROFITS HAS THE "EFFECT OF THE
DISTRIBUTION OF A TAXABLE DIVIDEND" UNDER SEC. 112(C)(2). 
RECAPITALIZATION DOES NOT ALTER THE "EFFECT."  ALTHOUGH THE CAPITAL OF
A COMPANY IS REDUCED, THE CASH RECEIVED IS A DISTRIBUTION OF EARNINGS
AND PROFITS AND AS SUCH FALLS WITHIN THE FEDERAL TAX.  THAT THE
COMPANY'S TREATMENT OF ITS STOCK DIVIDENDS MAY BRING CONSEQUENCES UNDER
STATE LAW REQUIRING A CAPITAL REDUCTION DOES NOT ALTER THE CHARACTER OF
THE TRANSACTIONS WHICH BRING THEM WITHIN THE FEDERAL INCOME TAX. 
RECAPITALIZATION IS ONE OF THE FORMS OF REORGANIZATION UNDER SEC.
112(G)(1)(D).  IT CANNOT THEREFORE BE URGED AS A REASON FOR TAKING THE
TRANSACTION OUT OF THE REQUIREMENTS OF SEC. 112 AND FORCING IT INTO THE
MOLD OF SEC. 115.  THE REDUCTION OF CAPITAL BRINGS SEC. 112 INTO
OPERATION AND DOES NOT GIVE IMMUNITY FROM THE REQUIREMENTS OF SEC.
112(C)(2). 

TREATING THE MATTER AS A PROBLEM OF STATUTORY CONSTRUCTION FOR OUR
INDEPENDENT JUDGMENT, WE HOLD THAT A DISTRIBUTION, PURSUANT TO A
REORGANIZATION, OF EARNINGS AND PROFITS "HAS THE EFFECT OF A
DISTRIBUTION OF A TAXABLE DIVIDEND" WITHIN SEC. 112(C)(2).  AS IS TRUE
OF OTHER TEASING QUESTIONS OF CONSTRUCTION RAISED BY TECHNICAL
PROVISIONS OF REVENUE ACTS THE MATTER IS NOT WHOLLY FREE FROM DOUBT. 
BUT THESE DOUBTS WOULD HAVE TO BE STRONGER THAN THEY ARE TO DISPLACE
THE INFORMED VIEWS OF THE TAX COURT.  AND IF THE CASE CAN BE REDUCED TO
ITS OWN PARTICULAR CIRCUMSTANCES RATHER THAN TURN ON A GENERALIZING
PRINCIPLE WE SHOULD FEEL BOUND TO APPLY DOBSON V. COMMISSIONER, 320
U.S. 489, AND SUSTAIN THE TAX COURT.  REVERSED. 

FN1  "SEC.  8(A).  THAT NO WRIT OF ERROR, APPEAL, OR WRIT OF
CERTIORARI, INTENDED TO BRING ANY JUDGMENT OR DECREE BEFORE THE SUPREME
COURT FOR REVIEW SHALL BE ALLOWED OR ENTERTAINED UNLESS APPLICATION
THEREFOR BE DULY MADE WITHIN THREE MONTHS AFTER THE ENTRY OF SUCH
JUDGMENT OR DECREE, EXCEPTING THAT WRITS OF CERTIORARI TO THE SUPREME
COURT OF THE PHILIPPINE ISLANDS MAY BE GRANTED WHERE APPLICATION
THEREFOR IS MADE WITHIN SIX MONTHS:  PROVIDED, THAT FOR GOOD CAUSE
SHOWN EITHER OF SUCH PERIODS FOR APPLYING FOR A WRIT OF CERTIORARI MAY
BE EXTENDED NOT EXCEEDING SIXTY DAYS BY A JUSTICE OF THE SUPREME
COURT."  43 STAT. 936, 940, 28 U.S.C. SEC. 350. 

FN2  DURING THE 1941, 1942 AND 1943 TERMS, THIS COURT ENTERTAINED
REVIEWS AND AFFIRMED JUDGMENTS OF THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT IN NOT LESS THAN TEN SUCH CASES: COMMERCIAL MOLASSES
CORP. V. N.Y. BARGE CORP., 314 U.S. 104; NEW YORK V. UNITED STATES, 315
U.S. 510; MOTHER LODE CO. V. COMM'R, 317 U.S. 222; SMITH V.
SHAUGHNESSY, 318 U.S. 176; HELVERING V. GRIFFITHS, 318 U.S. 371; EMIL
V. HANLEY, 318 U.S. 515; FISHER CO. V. WITMARK & SONS, 318 U.S. 643;
EQUITABLE SOCIETY V. COMM'R, 321 U.S. 560; MEDO CORP. V. LABOR BOARD,
321 U.S. 678; UNITED STATES EX REL. BRENSILBER V. BAUSCH & LOMB OPTICAL
CO., 320 U.S. 711(EQUALLY DIVIDED COURT). 

FN3  RESPONDENT ARGUES THAT THE RULES OF THE COURT BELOW, WITH
RESPECT TO THE OPINIONS OF THE COURT, REHEARINGS, ISSUANCE OF MANDATE,
AND STAY OF MANDATE, SHOW THAT THE "OPINION" IS MEANT TO CONSTITUTE THE
COURT'S JUDGMENT.  BUT THESE RULES COMPUTE TIME, WITH RESPECT TO FILING
OF PETITIONS FOR REHEARING AND FOR ISSUANCE OF MANDATE, NOT FROM ENTRY
OF A "JUDGMENT" BUT FROM THE "FILING OF THE OPINION OF THIS COURT." 
SOME DIFFICULTY IS RAISED BECAUSE RULE 27 REFUSES A REHEARING "UNLESS A
JUDGE WHO CONCURRED IN THE JUDGMENT DESIRES IT."  ALSO RESPONDENT FINDS
IT PARADOXICAL TO "STAY" THE COURT'S MANDATE UNDER RULE 30 WHEN THE
MANDATE IS CUSTOMARILY ISSUED ON THE SAME DAY THE "ORDER FOR MANDATE"
IS FILED.  AND RESPONDENT ARGUES THAT THE COURT COULD NOT HAVE MEANT TO
CONFER UPON ITS CLERK DISCRETION TO HOLD UP, FOR VARYING LENGTHS OF
TIME, THE RENDERING OF A JUDGMENT UNTIL FEES HAVE BEEN PAID BY THE
PREVAILING PARTY.  IN THIS CASE THE "ORDER FOR MANDATE" AND ISSUANCE OF
THE MANDATE WERE DELAYED FOR TWENTY-ONE DAYS, AND WERE NOT ENTERED
WITHIN FIFTEEN DAYS FROM THE FILING OF THE OPINION WHICH RULE 30 AND
THE COURT'S INSTRUCTIONS REQUIRE; THE TIME HAS BEEN VARIOUSLY EXTENDED
IN OTHER CASES. 

FN4  "(A).  DEFINITION OF DIVIDEND.  - THE TERM 'DIVIDEND' WHEN USED
IN THIS TITLE (EXCEPT IN SECTION 203(A)(3) AND SECTION 207(C)(1),
RELATING TO INSURANCE COMPANIES) MEANS ANY DISTRIBUTION MADE BY A
CORPORATION TO ITS SHAREHOLDERS, WHETHER IN MONEY OR IN OTHER PROPERTY,
(1) OUT OF ITS EARNINGS OR PROFITS ACCUMULATED AFTER FEBRUARY 28, 1913,
OR (2) OUT OF THE EARNINGS OR PROFITS OF THE TAXABLE YEAR (COMPUTED AS
OF THE CLOSE OF THE TAXABLE YEAR WITHOUT DIMINUTION BY REASON OF ANY
DISTRIBUTIONS MADE DURING THE TAXABLE YEAR), WITHOUT REGARD TO THE
AMOUNT OF THE EARNINGS AND PROFITS AT THE TIME THE DISTRIBUTION WAS
MADE." 

FN5 "(I).  DEFINITION OF PARTIAL LIQUIDATION.  - AS USED IN THIS
DISTRIBUTION BY A CORPORATION IN COMPLETE CANCELLATION OR REDEMPTION OF
A PART OF ITS STOCK, OR ONE OF A SERIES OF DISTRIBUTIONS IN COMPLETE
CANCELLATION OR REDEMPTION OF ALL OR A PORTION OF ITS STOCK." 
..END :













ANGELUS MILLING CO. V. COMM'R, 325 U.S. 293 


NO. 610.  ARGUED MARCH 7, 8, 1945.  - DECIDED MAY 21, 1945.  - 144 F.2D
469, AFFIRMED. 


1.  THE EVIDENCE IN THIS CASE WAS INSUFFICIENT TO ESTABLISH THAT THE
COMMISSIONER OF INTERNAL REVENUE, BY INVESTIGATING THE MERITS OF A
CLAIM FOR REFUND OF PROCESSING TAXES PAID UNDER THE AGRICULTURAL
ADJUSTMENT ACT OF 1933, HAD WAIVED COMPLIANCE WITH REQUIREMENTS OF
TREASURY REGULATIONS AS TO THE FORM OF THE CLAIM; AND THE CLAIM WAS
THEREFORE PROPERLY REJECTED.  P. 297. 

2.  THE REQUIREMENTS OF TREASURY REGULATIONS AS TO THE INFORMATION
WHICH SHALL BE CONTAINED IN THE CLAIM FOR REFUND WERE NOT SATISFIED
EVEN THOUGH THE CLAIM OF THE TAXPAYER TOGETHER WITH THAT OF ANOTHER
MIGHT HAVE FURNISHED THE REQUIRED DATA.  P. 299. 

ANGELUS MILLING CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 703, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE TAX COURT, 1 T.C. 1031, DISMISSING A PROCEEDING FOR REFUND OF A
PROCESSING TAX PAID UNDER THE AGRICULTURAL ADJUSTMENT ACT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT UNDER TITLE VII OF THE REVENUE ACT OF 1936, 49 STAT.
1948, 1747, 7 U.S.C. SEC. 644 ET SEQ., FOR A REFUND OF PROCESSING TAXES
PAID UNDER THE AGRICULTURAL ADJUSTMENT ACT OF 1933.  THE PROBLEM OF THE
CASE DERIVES FROM THE PROCEDURAL REQUIREMENTS OF A CLAIM FOR SUCH A
REFUND. 

THE PETITIONER, ANGELUS MILLING COMPANY, KNOWN UNTIL JUNE, 1933 AS
THE MIDDLEPORT FLOUR MILLS, INC., WAS A PROCESSOR OF WHEAT, WITH ITS
PRINCIPAL OFFICE IN NIAGARA FALLS, NEW YORK.  DURING THE YEARS FOR
WHICH THE REFUND IS CLAIMED - 1933 TO 1936 - ITS PROCESSING OPERATIONS
WERE CLOSELY CONNECTED WITH THOSE OF THE NIAGARA FALLS MILLING
COMPANY.  THE TWO COMPANIES HAD THE SAME OFFICERS, EMPLOYEES, AND
MAJORITY STOCKHOLDER, AND A JOINT BANK ACCOUNT.  THEY ALSO HAD A COMMON
SET OF BOOKS, BUT THE RESPECTIVE TRANSACTIONS OF THE TWO COMPANIES -
PURCHASES, COSTS OF MANUFACTURE, SALES - WERE ENTERED IN THEIR SEPARATE
ACCOUNTS ON THE BOOKS.  BETWEEN JULY 9, 1933, AND JANUARY 31, 1935, THE
COMPANIES FILED JOINT PROCESSING TAX RETURNS.  BETWEEN FEBRUARY 1,
1935, AND NOVEMBER 30, 1935, NIAGARA FILED RETURNS IN ITS NAME ON
BEHALF OF ITSELF AND PETITIONER. 

AFTER UNITED STATES V. BUTLER, 297 U.S. 1, INVALIDATED THE PROCESSING
TAX, THREE CLAIMS WERE FILED WITH THE COMMISSIONER ON JUNE 22, 1936,
ALL STATING THE NAME OF THE TAXPAYER AND CLAIMANT AS "NIAGARA FALLS
MILLING CO., INC. AND/OR MIDDLEPORT FLOUR MILLS, INC."  EACH OF THESE
CLAIMS IS FOR ONLY PART OF THE PERIOD DURING WHICH THE TAX WAS PAID,
AND THEIR TOTAL IS $434,045.27.  ADMITTEDLY THE FORM OF THESE CLAIMS
DID NOT SATISFY THE REQUIREMENTS OF THE STATUTE  FN1 OR THE AUTHORIZED
TREASURY REGULATIONS.  FN2  THEY WERE FILED ON AN OLD FORM 843 AND NOT
ON THE REQUIRED FORM P.T. 79.  WHILE THESE CLAIMS WERE STILL
UNDETERMINED, NIAGARA, ON JUNE 30, 1937, FILED A CLAIM IN THE SUM OF
$436,231.73.  THIS CLAIM WAS IN DUE FORM BUT WAS FILED BY NIAGARA ON
ITS OWN BEHALF ALONE.  THEREAFTER, ON AUGUST 15, 1938, PETITIONER FILED
A CLAIM, DESIGNATED "AMENDMENT TO CLAIM," FOR ITSELF ALONE FOR THE
REFUND OF $145,839.12.  WHILE THIS CLAIM WAS SUBMITTED ON FORM P.T. 79,
IT FAILED TO GIVE THE INFORMATION REQUIRED BY THE FORM AND THE
REGULATIONS, CONTAINING MERELY AN APPORTIONMENT BETWEEN ANGELUS AND
NIAGARA OF THE THREE EARLIER CLAIMS.  AN ATTACHED AFFIDAVIT STATED THAT
THIS CLAIM "WAS ORIGINALLY FILED ON THE 22ND DAY OF JUNE 1936 IN THE
NAME OF THE NIAGARA FALLS MILLING COMPANY AND/OR MIDDLEPORT FLOUR
MILLS, INC."  THE COMMISSIONER, ON MAY 23, 1941, DENIED THIS CLAIM. 

TO REVIEW THIS DISALLOWANCE, PETITIONER BROUGHT PROCEEDINGS IN THE
UNITED STATES PROCESSING TAX BOARD OF REVIEW.  A MOTION TO DISMISS,
BECAUSE OF A FATAL DEFECT IN THE CLAIM, WAS DENIED BY THE BOARD, BUT
THE COMMISSIONER IN HIS ANSWER STOOD ON HIS GROUND THAT THE BOARD WAS
WITHOUT JURISDICTION TO ENTERTAIN THE PROCEEDINGS.  AT THIS STAGE IN
THE LITIGATION CONGRESS ABOLISHED THE PROCESSING TAX BOARD OF REVIEW
AND TRANSFERRED ITS JURISDICTION TO THE PRESENT TAX COURT.  THAT COURT
GRANTED THE COMMISSIONER'S RENEWED MOTION TO DISMISS, 1 T.C. 1031, AND
THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED.  144 F.2D
469.  WE BROUGHT THE CASE HERE, 323 U.S. 703, BECAUSE CONFLICT WAS
URGED WITH THE DECISION IN UNITED STATES V. MEMPHIS COTTON OIL CO., 288
U.S. 62.  FN3 

PETITIONER'S CLAIM FOR RECOVERING PROCESSING TAXES PAID BY IT WAS
PROPERLY REJECTED BY THE COMMISSIONER IF IT DID NOT SATISFY THE
CONDITIONS WHICH CONGRESS DIRECTLY AND THROUGH THE RULE-MAKING POWER
GIVEN TO THE TREASURY LAID DOWN AS A PREREQUISITE FOR SUCH REFUND. 
INSOFAR AS CONGRESS HAS MADE EXPLICIT STATUTORY REQUIREMENTS, THEY MUST
BE OBSERVED AND ARE BEYOND THE DISPENSING POWER OF TREASURY OFFICIALS. 
TUCKER V. ALEXANDER, 275 U.S. 228, 231-232; UNITED STATES V. MEMPHIS
COTTON OIL CO., 288 U.S. 62, 71; UNITED STATES V. GARBUTT OIL CO., 302
U.S. 528, 533.  WITHOUT NEEDLESS ELABORATION, WE CONCLUDE THAT THERE IS
NOTHING IN WHAT CONGRESS HAS EXPLICITLY COMMANDED TO BAR THE CLAIM. 
THE EFFECTIVE ADMINISTRATION OF THESE MODERN COMPLICATED REVENUE
MEASURES INESCAPABLY LEADS CONGRESS TO AUTHORIZE DETAILED
ADMINISTRATIVE REGULATIONS BY THE COMMISSIONER OF INTERNAL REVENUE.  HE
MAY INSIST UPON FULL COMPLIANCE WITH HIS REGULATIONS.  SEE UNITED
STATES V. MEMPHIS COTTON OIL CO., SUPRA, AT 71; COMMISSIONER V. LANE
WELLS CO., 321 U.S. 219, 223-224.  IT IS HARDLY CONTENDED THAT THE
CONFUSING SERIES OF PETITIONER'S CLAIMS WHICH WE HAVE SUMMARIZED,
WHETHER SINGLY OR IN CONJUNCTION, OBEYED THE REGULATIONS.  FOR SUCH
DEFAULT THE COMMISSIONER COULD HAVE REJECTED THE CLAIMS OUT OF HAND. 
HE DID NOT DO THAT, AND BY WHAT HE DID DO HE HAS GIVEN RISE TO THE
CONTENTION THAT HE WAIVED THE REQUIREMENT OF HIS REGULATIONS.  THE
BASIS OF THIS CLAIM OF WAIVER IS THAT THE COMMISSIONER THROUGH HIS
AGENTS DISPENSED WITH THE FORMAL REQUIREMENTS OF A CLAIM BY
INVESTIGATING ITS MERITS. 

CANDOR DOES NOT PERMIT ONE TO SAY THAT THE POWER OF THE COMMISSIONER
TO WAIVE DEFECTS IN CLAIMS FOR REFUND IS A SUBJECT MADE CRYSTAL-CLEAR
BY THE AUTHORITIES.  THE QUESTION HAS BEEN SOMEWHAT COMPLICATED BY
CASES INVOLVING AMENDMENTS OF CLAIM.  THUS, IN UNITED STATES V. MEMPHIS
COTTON OIL CO., SUPRA, A CLAIMANT'S AMENDMENT WAS ALLOWED BECAUSE FILED
BEFORE HIS ORIGINAL CLAIM WAS REJECTED ON FORMAL GROUNDS.  ACCORDING TO
WHAT WAS THERE SAID, THERE CAN BE NO AMENDMENT AFTER A REJECTION THOUGH
THE COMMISSIONER HAD EXAMINED THE CLAIMANT'S BOOKS AND TENTATIVELY
FOUND AN OVERPAYMENT.  SEE EDWARDS V. MALLEY, 109 F.2D 640; 10 MERTENS,
LAW OF FEDERAL INCOME TAXATION (1942) SEC. 58.19.  IT SMACKS TOO MUCH
OF THE STRANGLING NICETIES OF COMMON LAW PLEADING TO FIND NO EXISTING
CLAIM TO WHICH A CURATIVE AMENDMENT MAY BE ATTACHED, ALTHOUGH THERE HAS
BEEN AN EXAMINATION OF THE MERITS, SIMPLY BECAUSE OF THE PRIOR
REJECTION OF A FORMALLY DEFECTIVE CLAIM AND YET FIND WAIVER OF A FORMAL
DEFECT MERELY BECAUSE AN EXAMINATION OF THE MERITS BY THE COMMISSIONER
MANIFESTS CONSIDERATION OF THE CLAIM. 

TREASURY REGULATIONS ARE CALCULATED TO AVOID DILATORY, CARELESS, AND
WASTEFUL FISCAL ADMINISTRATION BY BARRING INCOMPLETE OR CONFUSING
CLAIMS.  TUCKER V. ALEXANDER, SUPRA, AT 231; COMMISSIONER V. LANE-WELLS
CO., SUPRA, AT 223-224.  BUT CONGRESS HAS GIVEN THE TREASURY THIS RULE
MAKING POWER FOR SELF-PROTECTION AND NOT FOR SELF-IMPRISONMENT.  IF THE
COMMISSIONER CHOOSES NOT TO STAND ON HIS OWN FORMAL OR DETAILED
REQUIREMENTS, IT WOULD BE MAKING AN EMPTY ABSTRACTION, AND NOT A
PRACTICAL SAFEGUARD, OF A REGULATION TO ALLOW THE COMMISSIONER TO
INVOKE TECHNICAL OBJECTIONS AFTER HE HAS INVESTIGATED THE MERITS OF A
CLAIM AND TAKEN ACTION UPON IT.  EVEN TAX ADMINISTRATION DOES NOT AS A
MATTER OF PRINCIPLE PRECLUDE CONSIDERATIONS OF FAIRNESS. 

SINCE, HOWEVER, THE TIGHT NET WHICH THE TREASURY REGULATIONS FASHION
IS FOR THE PROTECTION OF THE REVENUE, COURTS SHOULD NOT UNDULY HELP
DISOBEDIENT REFUND CLAIMANTS TO SLIP THROUGH IT.  THE SHOWING SHOULD BE
UNMISTAKABLE THAT THE COMMISSIONER HAS IN FACT SEEN FIT TO DISPENSE
WITH HIS FORMAL REQUIREMENTS AND TO EXAMINE THE MERITS OF THE CLAIM. 
IT IS NOT ENOUGH THAT IN SOME ROUNDABOUT WAY THE FACTS SUPPORTING THE
CLAIM MAY HAVE REACHED HIM.  THE COMMISSIONER'S ATTENTION SHOULD HAVE
BEEN FOCUSED ON THE MERITS OF THE PARTICULAR DISPUTE.  THE EVIDENCE
SHOULD BE CLEAR THAT THE COMMISSIONER UNDERSTOOD THE SPECIFIC CLAIM
THAT WAS MADE EVEN THOUGH THERE WAS A DEPARTURE FROM FORM IN ITS
SUBMISSION.  WE DO NOT THINK THAT THE PETITIONER HAS MADE OUT SUCH A
CASE HERE. 

THE EVIDENCE OF WAIVER LARGELY RESTS UPON A LETTER FROM A GENERAL
DEPUTY COLLECTOR REQUESTING AN EXAMINATION OF CERTAIN BOOKS, AND UPON
AFFIDAVITS OF TWO ACCOUNTANTS, ONE AN OFFICER OF THE COMPANY, TO THE
EFFECT THAT THE COMMISSIONER EXAMINED PETITIONER'S BOOKS IN ORDER TO
CONSIDER THE CLAIM.  WE AGREE WITH THE TAX COURT THAT THE EVIDENCE IS
INSUFFICIENT TO ESTABLISH WAIVER.  THE LETTER FROM THE GENERAL DEPUTY
COLLECTOR REQUESTING PETITIONER'S PRESIDENT TO ALLOW EXAMINATION OF THE
"RECORDS OF THE MIDDLEPORT FLOUR MILLS, INC., AND ANGELUS FLOUR MILLS,
INC." WAS IN CONNECTION WITH THE CLAIM WHICH HAD BEEN FILED BY THE
NIAGARA MILLING COMPANY.  IN VIEW OF THE CONFUSING IDENTITY OF INTEREST
OF THE TWO COMPANIES, IT IS NOT UNREASONABLE TO ATTRIBUTE THIS INQUIRY,
AS DID THE TAX COURT, TO NIAGARA'S CLAIM AND NOT TO PETITIONER'S.  FOR
SIMILAR REASONS, THE AFFIDAVITS REGARDING THE PURPOSE OF THE
COMMISSIONER'S REPRESENTATIVES BEAR INTERPRETATION OF A LIKE
SIGNIFICANCE. 

IN THE MEMPHIS COTTON OIL CASE, WHERE AN AMENDMENT WAS ALLOWED OUT OF
TIME, THE DEPUTY COMMISSIONER, AFTER AN AUDIT OF THE TAXPAYER'S BOOKS,
NOTIFIED THE TAXPAYER IN WRITING THAT ITS REFUND CLAIMS HAD BEEN
CONSIDERED AND THAT ITS TAXES HAD BEEN READJUSTED IN ACCORDANCE WITH A
PROVEN OVERASSESSMENT.  SIMILAR EVIDENCE OF PREOCCUPATION BY THE
COMMISSIONER WITH THE PARTICULAR CLAIM AND CONTROVERSY HAS BEEN OFFERED
IN CASES WHERE WAIVER WAS RECOGNIZED.  SEE, E.G., UNITED STATES V.
ELGIN WATCH CO., 66 F.2D 344; UNITED STATES V. HUMBLE OIL & REFINING
CO., 69 F.2D 214; WEIHMAN V. UNITED STATES, 4 F.SUPP.  155.  TO BE
SURE, IT IS NOT ESSENTIAL FOR THE ESTABLISHMENT OF A WAIVER THAT THE
COMMISSIONER COMMUNICATE HIS RULING ON THE MERITS TO THE TAXPAYER.  BUT
IN THE ABSENCE OF SUCH EXPLICITNESS THE IMPLICATION THAT FORMAL
REQUIREMENTS WERE DISPENSED WITH SHOULD NOT BE TENUOUSLY
ARGUMENTATIVE.  NO MORE THAN THAT CAN BE SQUEEZED OUT OF THE MATERIALS
IN THIS RECORD.  THUS IT IS CLAIMED THAT THE COMMISSIONER OFFERED A
REFUND, SUBJECT TO OFFSETS, TO THE NIAGARA FALLS MILLING COMPANY.  BUT
THIS RATHER CONFIRMS THE INDICATION THE COMMISSIONER WAS BENT ON
NIAGARA'S CLAIM.  THE COMMISSIONER MAY HAVE ACQUIRED KNOWLEDGE OF
PETITIONER'S AFFAIRS BUT ONLY BY THE WAY, INCIDENTALLY TO HIS
INVESTIGATION OF NIAGARA'S CLAIMS.  PETITIONER HAS FAILED TO SUSTAIN
HIS BURDEN OF SHOWING THAT THE COMMISSIONER, BY EXAMINING THE FACTS OF
PETITIONER'S CLAIM IN ORDER TO DETERMINE THE MERITS, DISPENSED WITH THE
EXACTIONS OF THE REGULATIONS. 

AN ADDITIONAL ARGUMENT OF THE PETITIONER NEED NOT DETAIN US LONG.  IT
URGES THAT TAKING THE CLAIMS FILED BY NIAGARA AND PETITIONER TOGETHER,
THEY FURNISH ALL THE DATA REQUIRED BY THE REGULATIONS.  BUT IT IS NOT
ENOUGH THAT SOMEWHERE UNDER THE COMMISSIONER'S ROOF IS THE INFORMATION
WHICH MIGHT ENABLE HIM TO PASS ON A CLAIM FOR REFUND.  THE PROTECTION
OF THE REVENUE AUTHORIZES THE COMMISSIONER TO DEMAND INFORMATION IN A
PARTICULAR FORM, AND HE IS ENTITLED TO INSIST THAT THE FORM BE OBSERVED
SO AS TO ADVISE HIM EXPEDITIOUSLY AND ACCURATELY OF THE TRUE NATURE OF
THE CLAIM.  AFFIRMED. 

FN1  SECTION 903 OF TITLE VII OF THE 1936 REVENUE ACT, 49 STAT. 1648,
1747, REQUIRES THAT NO REFUND BE MADE OR ALLOWED "UNLESS  ...  A CLAIM
FOR REFUND HAS BEEN FILED  ...  IN ACCORDANCE WITH REGULATIONS
PRESCRIBED BY THE COMMISSIONER WITH THE APPROVAL OF THE SECRETARY.  ALL
EVIDENCE RELIED UPON IN SUPPORT OF SUCH CLAIM SHALL BE CLEARLY SET
FORTH UNDER OATH." 

FN2  THE APPLICABLE REGULATIONS PROVIDE FOR THE MAKING OF CLAIMS ON
PRESCRIBED FORMS, PRESENTATION OF THE GROUNDS URGED, AND SUBMISSION OF
EVIDENCE, ETC.  TREAS. REG. 96, ARTS. 201, 202, 601, 603, 605, 606. 
THE ONLY INFORMATION FURNISHED IN THESE CLAIMS IS THE NAME AND ADDRESS
OF THE JOINT CLAIMANTS, AND A STATEMENT OF THE DATES AND AMOUNTS OF THE
TAX PAYMENTS MADE BY THE NIAGARA MILLING COMPANY. 

FN3  AFTER WE GRANTED CERTIORARI IN THIS CASE, THE SAME QUESTION OF
TIMELINESS AS TO FILING OF THE PETITION EMERGED AS IS RAISED IN
COMMISSIONER V. ESTATE OF BEDFORD, ANTE, P. 283.  THE DECISION IN THE
BEDFORD CASE GOVERNS THIS. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :









FINN V. MEIGHAN, 325 U.S. 300 


NO. 953.  ARGUED APRIL 27, 1945.  - DECIDED MAY 21, 1945.  - 146 F.2D
594, AFFIRMED. 


1.  SECTION 70(B) OF THE BANKRUPTCY ACT AS AMENDED, WHICH SEC. 102
MAKES APPLICABLE TO PROCEEDINGS UNDER CHAPTER X, AUTHORIZES ENFORCEMENT
OF AN EXPRESS COVENANT PROVIDING FOR TERMINATION OF THE LEASE UPON
APPROVAL OF A PETITION UNDER CHAPTER X FOR REORGANIZATION OF THE
LESSEE.  P. 302. 

2.  A PROVISION OF A LEASE AUTHORIZING FORFEITURE "IF THE TENANT
SHALL BE ADJUDGED BANKRUPT OR INSOLVENT BY ANY COURT," HELD OPERATIVE
UPON APPROVAL OF A PETITION FOR REORGANIZATION OF THE TENANT UNDER
CHAPTER X OF THE BANKRUPTCY ACT.  P. 303. 

3.  SINCE THE COVENANT HERE PROVIDES FOR FORFEITURE UPON AN
ADJUDICATION OF INSOLVENCY "BY ANY COURT," IT IS NOT TO BE CONSTRUED AS
LIMITED TO AN ADJUDICATION OF INSOLVENCY BY NEW YORK COURTS UNDER THE
DEBTOR AND CREDITOR LAW.  P. 304. 

FINN, TRUSTEE, V. MEIGHAN, SUBSTITUTED TRUSTEE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 324 U.S. 834, TO REVIEW THE AFFIRMANCE OF AN ORDER IN A
PROCEEDING UNDER CHAPTER X OF THE BANKRUPTCY ACT ADJUDGING THE
TERMINATION OF A LEASE HELD BY THE DEBTOR. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

CHILDS COMPANY OPERATES A CHAIN OF RESTAURANTS.  IN AUGUST 1943 IT
FILED A VOLUNTARY PETITION FOR REORGANIZATION UNDER CH. X OF THE
BANKRUPTCY ACT (52 STAT. 885, 886, 11 U.S.C. SECS. 526, 530) ALLEGING
THAT IT WAS UNABLE TO PAY ITS DEBTS AS THEY MATURED.  THE PETITION WAS
APPROVED AND PETITIONER WAS APPOINTED TRUSTEE OF THE DEBTOR.  CHILDS
COMPANY HAD BEEN LESSEE OF, AND HAD OPERATED A RESTAURANT ON, CERTAIN
PREMISES IN NEW YORK CITY FOR OVER FORTY YEARS.  ITS PRESENT LEASE IS
FOR A TERM OF TWENTY-ONE YEARS ENDING IN 1947.  THAT LEASE CONTAINS THE
FOLLOWING PROVISION: 

"THE TENANT COVENANTS THAT  ...  IF A PETITION IN BANKRUPTCY SHALL BE
FILED BY THE TENANT OR IF THE TENANT SHALL BE ADJUDGED BANKRUPT OR
INSOLVENT BY ANY COURT, OR IF A TRUSTEE IN BANKRUPTCY OF THE TENANT
SHALL BE APPOINTED IN ANY SUIT OR PROCEEDING BROUGHT BY OR AGAINST THE
TENANT, THEN AND IN EACH AND EVERY SUCH CASE, THE TERM HEREBY GRANTED
SHALL IMMEDIATELY CEASE, DETERMINE AND COME TO AN END, AND THE LANDLORD
MAY RECOVER AND RESUME POSSESSION OF THE DEMISED PREMISES BY ANY LEGAL
MEANS." 

IN MAY 1944 PETITIONER ADVISED THE LESSOR THAT IT DESIRED TO ASSUME
THE LEASE.  RESPONDENT REPLIED THAT THE LEASE HAD CEASED AND COME TO AN
END BY VIRTUE OF THE BANKRUPTCY PROCEEDINGS.  THEREAFTER, RESPONDENT
PETITIONED THE BANKRUPTCY COURT FOR AN ORDER ADJUDGING THAT THE TERM
GRANTED BY THE LEASE HAD TERMINATED.  THE COURT GRANTED THE RELIEF
ASKED BY THE PETITION.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  146
F.2D 594.  THE CASE IS HERE ON CERTIORARI. 

THE BANKRUPTCY COURT DOES NOT LOOK WITH FAVOR UPON FORFEITURE CLAUSES
IN LEASES.  THEY ARE LIBERALLY CONSTRUED IN FAVOR OF THE BANKRUPT
LESSEE SO AS NOT TO DEPRIVE THE ESTATE OF PROPERTY WHICH MAY TURN OUT
TO BE A VALUABLE ASSET.  GAZLAY V. WILLIAMS, 210 U.S. 41; MODEL DAIRY
CO. V. FOLTIS-FISCHER, 67 F.2D 704, 706.  BUT AN EXPRESS COVENANT OF
FORFEITURE HAS LONG BEEN HELD TO BE ENFORCEABLE AGAINST THE BANKRUPTCY
TRUSTEE.  EMPRESS THEATRE CO. V. HORTON, 266 F. 657; JANDREW V. BOUCHE,
29 F.2D 346.  AND THE 1938 REVISION OF THE BANKRUPTCY ACT MADE NO
CHANGE IN THAT REGARD.  CONGRESS GRANTED THE TRUSTEE SIXTY DAYS (UNLESS
REDUCED OR EXTENDED) IN WHICH TO ASSUME OR REJECT A LEASE.  SEC. 70(B)
OF THE BANKRUPTCY ACT AS AMENDED, 11 U.S.C. SEC. 110(B).  BUT AT THE
SAME TIME, CONGRESS PROVIDED:  "A GENERAL COVENANT OR CONDITION IN A
LEASE THAT IT SHALL NOT BE ASSIGNED SHALL NOT BE CONSTRUED TO PREVENT
THE TRUSTEE FROM ASSUMING THE SAME AT HIS ELECTION AND SUBSEQUENTLY
ASSIGNING THE SAME; BUT AN EXPRESS COVENANT THAT AN ASSIGNMENT BY
OPERATION OF LAW OR THE BANKRUPTCY OF A SPECIFIED PARTY THERETO OR OF
EITHER PARTY SHALL TERMINATE THE LEASE OR GIVE THE OTHER PARTY AN
ELECTION TO TERMINATE THE SAME SHALL BE ENFORCEABLE."  THIS PROVISION
WAS MERELY DECLARATORY OF THE LAW AS IT THEN EXISTED.  FN1 

THERE IS SOME SUGGESTION, HOWEVER, THAT THAT PROVISION IS APPLICABLE
ONLY IN ORDINARY BANKRUPTCY PROCEEDINGS AND NOT TO REORGANIZATIONS
UNDER CH. X. IT IS POINTED OUT THAT FREQUENTLY THE VALUE OF ENTERPRISES
IS GREATLY ENHANCED BY LEASES ON STRATEGIC PREMISES AND THAT IF
FORFEITURE CLAUSES WERE ALLOWED TO BE ENFORCED, REORGANIZATION PLANS
MIGHT BE SERIOUSLY IMPAIRED.  BUT CONGRESS HAS MADE THE FORFEITURE
PROVISION OF SEC. 70 APPLICABLE TO REORGANIZATION PROCEEDINGS UNDER CH.
X. BY SEC. 102(11 U.S.C. SEC. 502) IT PROVIDED THAT THE PROVISIONS OF
CH. VII (WHICH INCLUDES SEC. 70) SHOULD BE APPLICABLE TO PROCEEDINGS
UNDER CH. X "INSOFAR AS THEY ARE NOT INCONSISTENT OR IN CONFLICT WITH
THE PROVISIONS" OF THAT CHAPTER.  FN2  MOREOVER, CONGRESS PROVIDED IN
SEC. 102 THAT "PROVISIONS RELATING TO 'BANKRUPTS' SHALL BE DEEMED TO
RELATE ALSO TO 'DEBTORS,' AND 'BANKRUPTCY PROCEEDINGS' OR 'PROCEEDINGS
IN BANKRUPTCY' SHALL BE DEEMED TO INCLUDE PROCEEDINGS UNDER THIS
CHAPTER."  THUS WE MUST READ SEC. 70(B) AS PROVIDING THAT AN EXPRESS
COVENANT IS ENFORCEABLE WHICH ALLOWS THE LESSOR TO TERMINATE THE LEASE
IF A PETITION TO REORGANIZE THE LESSEE UNDER CH. X IS APPROVED.  CF. IN
RE WALKER, 93 F.2D 281.  THAT BEING THE POLICY ADOPTED BY CONGRESS, OUR
DUTY IS TO ENFORCE IT. 

THE QUESTION REMAINS WHETHER THIS LEASE SHOULD BE SO CONSTRUED. 
THERE IS TO BE A FORFEITURE "IF THE TENANT SHALL BE ADJUDGED BANKRUPT
OR INSOLVENT BY ANY COURT."  IT IS SAID THAT "INSOLVENT" IS USED
INTERCHANGEABLY WITH "BANKRUPT."  BUT IT HAS LONG BEEN HELD THAT A
GENERAL ASSIGNMENT IS AN ACT OF BANKRUPTCY WHETHER OR NOT THE DEBTOR IS
INSOLVENT.  WEST CO. V. LEA, 174 U.S. 590.  THUS IT WOULD SEEM THAT
"ADJUDGED BANKRUPT" AND "ADJUDGED INSOLVENT" DO NOT COVER PRECISELY THE
SAME GROUND.  MOREOVER, INSOLVENCY IN THE EQUITY SENSE HAS ALWAYS MEANT
AN INABILITY OF THE DEBTOR TO PAY HIS DEBTS AS THEY MATURE.  FN3 UNDER
THE BANKRUPTCY ACT IT MEANS AN INSUFFICIENCY OF ASSETS AT A FAIR
VALUATION TO PAY THE DEBTS.  SEC. 1(19), 11 U.S.C. SEC. 1(19).  IT WAS
LONG THE PRACTICE TO INITIATE REORGANIZATIONS IN THE FEDERAL EQUITY
COURTS BY THE FILING OF A GENERAL CREDITOR'S BILL WHICH ALLEGED
INSOLVENCY IN THE EQUITY SENSE.  FN4  THERE WOULD ACCORDINGLY SEEM TO
BE NO DOUBT THAT IF A RECEIVER WERE APPOINTED PURSUANT TO SUCH A BILL,
IT WOULD BRING INTO OPERATION AN EXPRESS COVENANT PROVIDING FOR A
FORFEITURE OF A LEASE "IF THE TENANT SHALL BE ADJUDGED INSOLVENT BY ANY
COURT."  NO REASON IS APPARENT WHY THE SAME RESULT SHOULD NOT OBTAIN IN
CASES OF REORGANIZATION UNDER CH. X. 

WE DO NOT BELIEVE A DIFFERENT RESULT IS INDICATED IN THIS CASE MERELY
BECAUSE THE PROVISION FOR FORFEITURE ON ADJUDICATION OF INSOLVENCY
APPEARS IN A PARAGRAPH OTHERWISE EXCLUSIVELY DEVOTED TO THE CONTINGENCY
OF BANKRUPTCY.  PETITIONER RELIES ON THE NEW YORK DEBTOR AND CREDITOR
LAW, CONSOL.  L., C. 12, WHICH PROVIDES FOR THE DISCHARGE OF INSOLVENT
DEBTORS IN PROCEEDINGS IN THE NEW YORK COURTS.  SECS. 50-88.  IT IS
SAID THAT INSOLVENCY UNDER THAT STATUTE MEANS INSOLVENCY IN THE
BANKRUPTCY SENSE (SEC. 52) AND THAT THE COVENANT IN QUESTION WAS DRAWN
SO AS TO PROVIDE FOR A FORFEITURE IN THE EVENT OF SUCH AN
ADJUDICATION.  BUT AS WE HAVE SAID, THE COVENANT IN THIS LEASE PROVIDES
FOR FORFEITURE ON AN ADJUDICATION OF INSOLVENCY "BY ANY COURT."  IT IS
DIFFICULT TO SEE IN THAT LANGUAGE A LIMITATION OF THE COVENANT TO AN
ADJUDICATION OF INSOLVENCY BY THE NEW YORK COURTS UNDER THE DEBTOR AND
CREDITOR LAW.  FN5  AFFIRMED. 

FN1  SEE 4 COLLIER ON BANKRUPTCY (14TH ED. 1942), PP. 1239-1241;
WEINSTEIN, THE BANKRUPTCY LAW OF 1938, P. 159 

FN2  AND SEE SECS. 114 AND 115.  AS RESPECTS THE REJECTION OR
ASSUMPTION OF LEASES UNDER CH. X SEE SECS. 116(1), 202, 216(4).  CF. IN
RE CHASE COMMISSARY CORP., 11 F.SUPP.  288. 

FN3  GLENN, CREDITORS' RIGHTS AND REMEDIES (1915), SEC. 370. 

FN4  RE METROPOLITAN RAILWAY RECEIVERSHIP, 208 U.S. 90; 1 GERDES,
CORPORATE REORGANIZATIONS (1936) SECS. 13, 19.  PART VIII, REPORT ON
THE STUDY AND INVESTIGATION OF PROTECTIVE AND REORGANIZATION
COMMITTEES, SECURITIES AND EXCHANGE COMMISSION (1940), PP. 24 ET SEQ. 

FN5  THE OTHER PROVISIONS OF NEW YORK LAW DEALING WITH INSOLVENCY
COMMONLY DEFINE IT AS AN INABILITY TO PAY DEBTS AS THEY MATURE.  THE
NEW YORK AUTHORITIES ARE REVIEWED BY JUDGE KNOX IN IN RE SCHULTE RETAIL
STORES CORP., 22 F.SUPP.  612, 616. 
..END :










CHASE SECURITIES CORP. V. DONALDSON, 325 U.S. 304 


NO. 110.  ARGUED FEBRUARY 27, 1945.  - DECIDED MAY 21, 1945.  - 216
MINN. 269, 13 N.W.2D 1, AFFIRMED. 


1.  UPON THE RECORD OF THIS SUIT TO RECOVER THE PURCHASE PRICE OF
SECURITIES SOLD IN VIOLATION OF THE MINNESOTA BLUE SKY LAW AND ON
MISREPRESENTATIONS, THE DEFENDANT'S IMMUNITY FROM SUIT CAN NOT BE SAID
TO HAVE BEEN FINALLY ADJUDICATED BY THE STATE COURTS PRIOR TO THE
LEGISLATURE'S ENACTMENT OF AN ACT WHICH OPERATED TO ABOLISH ANY DEFENSE
THAT THE DEFENDANT MAY HAVE HAD UNDER THE STATE STATUTES OF
LIMITATIONS, AND THE ACT THEREFORE DID NOT DEPRIVE THE DEFENDANT OF
PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  FOLLOWING CAMPBELL V. HOLT, 115 U.S. 620.  P. 310. 

2.  THE ESSENTIAL HOLDING IN CAMPBELL V. HOLT - THAT WHERE LAPSE OF
TIME HAS NOT INVESTED A PARTY WITH TITLE TO REAL OR PERSONAL PROPERTY,
A STATE LEGISLATURE, CONSISTENTLY WITH THE FOURTEENTH AMENDMENT, MAY
REPEAL OR EXTEND A STATUTE OF LIMITATIONS, EVEN AFTER RIGHT OF ACTION
IS BARRED THEREBY, RESTORE TO THE PLAINTIFF HIS REMEDY, AND DIVEST THE
DEFENDANT OF THE STATUTORY BAR - SO FAR AS APPLICABLE TO THIS CASE, IS
SOUND AND SHOULD NOT BE OVERRULED.  PP. 311, 315. 

3.  THE ACT IN QUESTION WAS A GENERAL ONE, APPLYING TO ALL SIMILARLY
SITUATED PERSONS OR TRANSACTIONS, AND DID NOT VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 309, N. 5. 

4.  THAT THE DEFENDANT HAD NO OPPORTUNITY TO SUBMIT TESTIMONY OF
LEGISLATORS AS TO THE INTENT OF THE ACT DID NOT CONSTITUTE A DENIAL OF
DUE PROCESS OF LAW.  P. 309, N. 5. 

CHASE SECURITIES CORP., NOW KNOWN AS AMEREX HOLDING CORP., V.
DONALDSON ET AL., EXECUTORS. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

APPEAL FROM A JUDGMENT UPHOLDING THE CONSTITUTIONALITY OF A STATE
STATUTE IN A SUIT TO RECOVER THE PURCHASE PRICE OF SECURITIES SOLD TO
THE PLAINTIFF. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF MINNESOTA ATTACKS
AS VIOLATIVE OF THE FOURTEENTH AMENDMENT A PROVISION OF THE MINNESOTA
STATUTES ENACTED AS PART OF A GENERAL REVISION OF THE MINNESOTA
SECURITIES OR BLUE SKY LAW.  ITS EFFECT UPON APPELLANT WAS TO LIFT THE
BAR OF THE STATUTE OF LIMITATIONS IN A PENDING LITIGATION, WHICH
APPELLANT CONTENDS AMOUNTS TO TAKING ITS PROPERTY WITHOUT DUE PROCESS
OF LAW. 

THIS ACTION WAS BROUGHT IN STATE COURT IN NOVEMBER, 1937, TO RECOVER
THE PURCHASE PRICE OF "CHASE UNITS," SOLD BY APPELLANT IN MINNESOTA TO
THE APPELLEES' TESTATE AUGUST 10, 1929.  THE "UNITS" HAD NOT BEEN
REGISTERED AS REQUIRED BY THE LAWS OF THAT STATE.  THE ACTION WAS BASED
IN PART ON ILLEGALITY OF THE SALE, BUT IT ALSO WAS GROUNDED ON COMMON
LAW FRAUD AND DECEIT.  DEFENDANT RELIED AMONG OTHER DEFENSES ON THE
STATUTE OF LIMITATIONS.  PLAINTIFF COUNTERED THAT THE RUNNING OF THE
STATUTE HAD BEEN SUSPENDED BECAUSE DEFENDANT HAD WITHDRAWN FROM THE
STATE AND THE STATUTE DID NOT RUN DURING ITS ABSENCE.  THE CASE WAS
TRIED BY THE COURT WITHOUT A JURY.  IT FOUND THAT THERE WAS A SALE IN
VIOLATION OF THE BLUE SKY LAW, THAT THE MINNESOTA 6-YEAR STATUTE OF
LIMITATIONS APPLYING TO ACTIONS "UPON A LIABILITY CREATED BY STATUTE"
GOVERNED THE CASE BUT HAD BEEN TOLLED BY WITHDRAWAL OF THE APPELLANT
FROM THE STATE IN 1931.  JUDGMENT WAS THEREFORE RENDERED FOR THE
PURCHASE PRICE ADJUSTED FOR INTEREST AND DIVIDENDS AND THE COURT FOUND
IT UNNECESSARY TO PASS ON THE FRAUD ISSUES. 

THE SUPREME COURT OF MINNESOTA REVERSED.  FN1  IT HELD BY REFERENCE
TO A COMPANION CASE FN2 THAT THE STATUTE OF LIMITATIONS HAD NOT BEEN
TOLLED BY THE APPELLANT'S ABSENCE FROM THE STATE BECAUSE IT HAD
DESIGNATED AGENTS TO RECEIVE SERVICE OF PROCESS AFTER ITS DEPARTURE AS
REQUIRED BY STATUTE.  THE CASE WAS REMANDED ON JANUARY 10, 1941 WITHOUT
PREJUDICE TO FURTHER PROCEEDINGS ON "ISSUES OTHER THAN THAT OF THE
TOLLING OF THE STATUTE OF LIMITATIONS." 

WHILE PROCEEDINGS WERE PENDING IN THE LOWER COURT, THE LEGISLATURE
ENACTED A STATUTE, EFFECTIVE JULY 1, 1941, WHICH AMENDED THE BLUE SKY
LAW IN MANY PARTICULARS NOT PERTINENT HERE.  THE SECTION IN QUESTION
ADDED A SPECIFIC STATUTE OF LIMITATIONS APPLICABLE TO ACTIONS BASED ON
VIOLATIONS OF THE BLUE SKY LAW  FN3  AS TO WHICH THERE HAD BEEN NO
PROVISION EXCEPT A GENERAL STATUTE OF LIMITATIONS.  UNDER THE FORMER
LAW THE LIMITATION ON ACTIONS FOR FRAUD DID NOT COMMENCE TO RUN UNTIL
ITS DISCOVERY.  UNDER THE NEW LAW, ACTIONS FOR FAILURE TO DISCLOSE NON
REGISTRATION OR FOR MISREPRESENTATIONS CONCERNING REGISTRATION, OR FOR
FALSITY OF REPRESENTATIONS IMPLIED FROM THE FACT OF SALE, ALL OF WHICH
GROUNDS WERE SET UP IN THIS ACTION, MUST BE BROUGHT WITHIN SIX YEARS OF
DELIVERY OF THE SECURITIES.  AGGRIEVED PURCHASERS WERE THEREFORE DENIED
FUTURE BENEFIT OF SUSPENSION OF THE PERIOD OF LIMITATION DURING THE
TIME SUCH FRAUDS OR GROUNDS OF ACTION REMAINED UNDISCOVERED.  BUT IT
ALSO WAS PROVIDED THAT WHERE DELIVERY HAD OCCURRED MORE THAN FIVE YEARS
PRIOR TO THE EFFECTIVE DATE OF THE ACT, WHICH WAS THE FACT IN THIS
CASE, THE ACTION MIGHT BE BROUGHT WITHIN ONE YEAR AFTER THE LAW'S
ENACTMENT.  THE EFFECT OF THIS WAS TO ABOLISH ANY DEFENSE THAT
APPELLANT MIGHT OTHERWISE HAVE MADE UNDER THE MINNESOTA STATUTES OF
LIMITATION. 

BOTH APPELLANT AND APPELLEE MOVED IN THE TRIAL COURT, SHORTLY AFTER
THE ACT BECAME EFFECTIVE, FOR SUPPLEMENTAL FINDINGS.  APPELLANT ASKED
FINDINGS IN ITS FAVOR ON THE THEORY THAT THE ACTION WAS BARRED, THAT
THE NEW ACT WAS INAPPLICABLE, AND THAT THERE WAS NO PROOF OF ACTUAL
FRAUD.  APPELLEE CONTENDED THAT THE 1941 LAW APPLIED AND THAT BY REASON
OF IT RECOVERY WAS NOT BARRED.  THE TRIAL COURT DETERMINED THAT THE
PLAINTIFF WAS ENTITLED TO RECOVER IN TORT BOTH ON THE GROUND OF AN
ILLEGAL SALE AND ON THE GROUND OF COMMON-LAW FRAUD AND DECEIT; THAT
PLAINTIFF HAD NOT DISCOVERED THE DECEPTION UNTIL SHORTLY BEFORE THE
ACTION WAS BEGUN; THAT THE PROVISIONS OF THE 1941 ACT APPLIED TO THE
PLAINTIFF'S "CAUSE OF ACTION, OR ANY OF THE SEPARATE GROUNDS OF RELIEF
ASSERTED BY PLAINTIFF," AND OPERATED TO EXTEND THE TIME FOR THE
COMMENCEMENT OF ACTION THEREON TO JULY 1, 1942 AND THAT PLAINTIFF'S
ACTION WAS THEREFORE COMMENCED WITHIN THE TIME LIMITED BY THE STATUTES
OF MINNESOTA.  THE APPELLANT MOVED FOR AMENDED FINDINGS AND THEN FOR
THE FIRST TIME RAISED THE FEDERAL CONSTITUTIONAL QUESTION THAT THE
STATUTE, IF APPLIED SO TO LIFT THE BAR, DEPRIVED APPELLANT OF PROPERTY
WITHOUT DUE PROCESS OF LAW, IN VIOLATION OF THE FOURTEENTH AMENDMENT. 
ITS MOTION WAS DENIED. 

APPEALING AGAIN TO THE SUPREME COURT OF MINNESOTA, APPELLANT AMONG
OTHER THINGS URGED THIS FEDERAL CONSTITUTIONAL QUESTION.  THE SUPREME
COURT AGAIN DID NOT REACH DECISION OF THE FRAUD ASPECTS OF THE CASE. 
IT HELD THAT THE BLUE SKY LAW REQUIRED THE SECURITIES TO BE REGISTERED
AND WAS VIOLATED BY THE SALE; THAT THE ACTION WAS ONE IN TORT TO
RECOVER AS DAMAGES THE PURCHASE PRICE OF UNREGISTERED SECURITIES SOLD
IN MINNESOTA; THAT THE NEW LIMITATIONS STATUTE WAS APPLICABLE AND HAD
THE EFFECT OF LIFTING ANY PRE-EXISTING BAR OF THE GENERAL LIMITATION
STATUTE AND THAT IN SO DOING IT DID NOT VIOLATE THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  THE COURT RELIED ON CAMPBELL V. HOLT, 115
U.S. 620, SAYING, "WE DO NOT FIND THAT CAMPBELL V. HOLT HAS BEEN
REVERSED OR RECONSIDERED, AND WE REGARD IT AS SOUND LAW; AND,
CERTAINLY, SO FAR AS THE FEDERAL CONSTITUTION IS CONCERNED, IT IS
BINDING ON THIS COURT UNTIL REVERSED BY THE SUPREME COURT."  FN4  THE
JUDGMENT WAS THEREFORE AFFIRMED, REHEARING WAS SOUGHT AND DENIED,  FN5
AND THE CASE BROUGHT HERE BY APPEAL. 

AS THE CASE STOOD IN THE STATE COURTS IT IS NOT ONE WHERE A
DEFENDANT'S STATUTORY IMMUNITY FROM SUIT HAD BEEN FULLY ADJUDGED SO
THAT LEGISLATIVE ACTION DEPRIVED IT OF A FINAL JUDGMENT IN ITS FAVOR. 
THE LOWER COURT HAD DECIDED AGAINST APPELLANT.  THE SUPREME COURT HAD
CONFINED ITS REVERSAL TO ONE QUESTION - WHETHER THE DEFENDANT'S
WITHDRAWAL FROM THE STATE TOLLED THE RUNNING OF THE STATUTE OF
LIMITATIONS.  THE CASE WAS RETURNED TO THE LOWER COURT WITHOUT
PREJUDICE TO ANY OTHER QUESTION. 

APPELLANT, HOWEVER, INSISTS THAT IT WAS SUED UPON TWO SEPARATE AND
INDEPENDENT CAUSES OF ACTION, ONE BEING "UPON A LIABILITY CREATED BY
STATUTE," AND THAT ITS IMMUNITY FROM SUIT ON THAT CAUSE OF ACTION HAD
BEEN FINALLY ADJUDICATED.  THE ARGUMENT IS NOT CONSISTENT WITH THE
HOLDINGS OF THE STATE COURT.  THE BLUE SKY LAW IMPOSES DUTIES UPON A
SELLER OF CERTAIN SECURITIES, BUT IT DOES NOT EXPRESSLY DEFINE A
LIABILITY FOR THEIR OMISSION OR CREATE A CAUSE OF ACTION IN FAVOR OF A
BUYER OF UNREGISTERED SECURITIES.  THE STATE COURTS, NEVERTHELESS, HELD
THAT SUCH AN ILLEGAL SALE WILL SUPPORT A COMMON-LAW ACTION IN TORT. 
DREES V. MINNESOTA PETROLEUM CO., 189 MINN. 608, 250 N.W. 563.  AND ON
THE SECOND APPEAL OF THIS CASE THE COURT SAID, "THE ACTION WAS BROUGHT
IN TORT TO RECOVER AS DAMAGES THE PURCHASE PRICE OF UNREGISTERED
SECURITIES  ...  IT ALSO SOUGHT RECOVERY ON THE GROUND OF DECEIT BASED
ON MISREPRESENTATION, BUT, IN VIEW OF OUR DISPOSITION OF THE CASE, WE
NEED NOT CONSIDER THAT PHASE OF THE CASE."  FN6  IT IS NOT UNCOMMON
THAT A SINGLE CAUSE OF ACTION IN TORT WILL REST BOTH ON OMISSION OF A
STATUTORY DUTY AND ON COMMON-LAW NEGLIGENCE; THE TWO BASES DO NOT
NECESSARILY MULTIPLY THE CAUSES OF ACTION.  CF. BALTIMORE STEAMSHIP CO.
V. PHILLIPS, 274 U.S. 316, 321; NEW YORK CENTRAL R. CO. V. KINNEY, 260
U.S. 340, 346; SEABOARD AIR LINE R. CO. V. KOENNECKE, 239 U.S. 352,
354.  THIS APPEARS TO BE PERMITTED BY THE LAW OF MINNESOTA.  TUDER V.
OREGON SHORT LINE R. CO., 131 MINN. 317, 318-19, 155 N.W. 200.  IT IS
TRUE THAT THE SUPREME COURT IN DISPOSING OF THE FIRST APPEAL RELIED ON
A COMPANION CASE IN WHICH IT WAS SAID THAT "PLAINTIFF MUST BE
CONSIDERED TO HAVE SUED 'UPON A LIABILITY CREATED BY STATUTE.'"  FN7
THE PLEADINGS IN THE COMPANION CASE ARE NOT BEFORE US.  NO SEPARATE
STATEMENT OF A STATUTORY CAUSE OF ACTION IS SET OUT IN THE COMPLAINT IN
THIS CASE.  THE STATE COURT DID NOT DISPOSE OF THE LIABILITY FOR
STATUTORY VIOLATION AS A SEPARATE CAUSE OF ACTION BY DISMISSAL OR
OTHERWISE.  WE CANNOT SAY THAT IT WAS FINALLY OR SEPARATELY
ADJUDICATED.  THE STATE COURTS SEEM TO HAVE TREATED THE COMPLAINT AS
SETTING UP SEVERAL BASES FOR A SINGLE COMMON-LAW CAUSE OF ACTION IN
TORT WHICH HAD BEEN REMANDED FOR RETRIAL AT THE TIME THE NEW STATUTE
WAS ENACTED.  WE MUST REGARD IT IN THAT SAME LIGHT. 

THE SUBSTANTIAL FEDERAL QUESTIONS WHICH SURVIVE THE STATE COURT
DECISION ARE WHETHER THIS CASE IS GOVERNED BY CAMPBELL V. HOLT AND, IF
SO, WHETHER THAT CASE SHOULD BE RECONSIDERED AND OVERRULED. 

IN CAMPBELL V. HOLT, SUPRA, THIS COURT HELD THAT WHERE LAPSE OF TIME
HAS NOT INVESTED A PARTY WITH TITLE TO REAL OR PERSONAL PROPERTY, A
STATE LEGISLATURE, CONSISTENTLY WITH THE FOURTEENTH AMENDMENT, MAY
REPEAL OR EXTEND A STATUTE OF LIMITATIONS, EVEN AFTER RIGHT OF ACTION
IS BARRED THEREBY, RESTORE TO THE PLAINTIFF HIS REMEDY, AND DIVEST THE
DEFENDANT OF THE STATUTORY BAR.  THIS HAS LONG STOOD AS A STATEMENT OF
THE LAW OF THE FOURTEENTH AMENDMENT, AND WE AGREE WITH THE COURT BELOW
THAT ITS HOLDING IS APPLICABLE HERE AND FATAL TO THE CONTENTIONS OF
APPELLANT.  FN8 

APPELLANT ASKS THAT IN CASE WE FIND CAMPBELL V. HOLT CONTROLLING IT
BE RECONSIDERED AND OVERRULED.  WE ARE REMINDED THAT SOME STATE COURTS
HAVE NOT FOLLOWED IT IN CONSTRUING PROVISIONS OF THEIR CONSTITUTIONS
SIMILAR TO THE DUE PROCESS CLAUSE.  FN9  MANY HAVE, AS THEY ARE
PRIVILEGED TO DO, SO INTERPRETED THEIR OWN EASILY AMENDABLE
CONSTITUTIONS TO GIVE RESTRICTIVE CLAUSES A MORE RIGID INTERPRETATION
THAN WE PROPERLY COULD IMPOSE UPON THEM FROM WITHOUT BY CONSTRUCTION OF
THE FEDERAL INSTRUMENT WHICH IS AMENDABLE ONLY WITH GREAT DIFFICULTY
AND WITH THE COOPERATION OF MANY STATES. 

WE ARE ALSO CITED TO SOME CRITICISMS OF CAMPBELL V. HOLT IN LEGAL
LITERATURE.  FN10  BUT NEITHER IN VOLUME NOR IN WEIGHT ARE THEY MORE
IMPRESSIVE THAN HAS BEEN DIRECTED AT MANY DECISIONS THAT DEAL WITH
CONTROVERSIAL AND RECURRENT ISSUES. 

STATUTES OF LIMITATIONS ALWAYS HAVE VEXED THE PHILOSOPHICAL MIND FOR
IT IS DIFFICULT TO FIT THEM INTO A COMPLETELY LOGICAL AND SYMMETRICAL
SYSTEM OF LAW.  THERE HAS BEEN CONTROVERSY AS TO THEIR EFFECT.  SOME
ARE OF OPINION THAT LIKE THE ANALOGOUS CIVIL LAW DOCTRINE OF
PRESCRIPTION  FN11 LIMITATIONS STATUTES SHOULD BE VIEWED AS
EXTINGUISHING THE CLAIM AND DESTROYING THE RIGHT ITSELF.  ADMITTEDLY IT
IS TROUBLESOME TO SUSTAIN AS A "RIGHT" A CLAIM THAT CAN FIND NO REMEDY
FOR ITS INVASION.  ON THE OTHER HAND, SOME COMMON-LAW COURTS HAVE
REGARDED TRUE STATUTES OF LIMITATION AS DOING NO MORE THAN TO CUT OFF
RESORT TO THE COURTS FOR ENFORCEMENT OF A CLAIM.  FN12  WE DO NOT NEED
TO SETTLE THESE ARGUMENTS. 

STATUTES OF LIMITATION FIND THEIR JUSTIFICATION IN NECESSITY AND
CONVENIENCE RATHER THAN IN LOGIC.  THEY REPRESENT EXPEDIENTS, RATHER
THAN PRINCIPLES.  THEY ARE PRACTICAL AND PRAGMATIC DEVICES TO SPARE THE
COURTS FROM LITIGATION OF STALE CLAIMS, AND THE CITIZEN FROM BEING PUT
TO HIS DEFENSE AFTER MEMORIES HAVE FADED, WITNESSES HAVE DIED OR
DISAPPEARED, AND EVIDENCE HAS BEEN LOST.  ORDER OF RAILROAD
TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, 321 U.S. 342, 349.  THEY ARE BY
DEFINITION ARBITRARY, AND THEIR OPERATION DOES NOT DISCRIMINATE BETWEEN
THE JUST AND THE UNJUST CLAIM, OR THE VOIDABLE AND UNAVOIDABLE DELAY. 
THEY HAVE COME INTO THE LAW NOT THROUGH THE JUDICIAL PROCESS BUT
THROUGH LEGISLATION.  FN13  THEY REPRESENT A PUBLIC POLICY ABOUT THE
PRIVILEGE TO LITIGATE.  THEIR SHELTER HAS NEVER BEEN REGARDED AS WHAT
NOW IS CALLED A "FUNDAMENTAL" RIGHT OR WHAT USED TO BE CALLED A
"NATURAL" RIGHT OF THE INDIVIDUAL.  HE MAY, OF COURSE, HAVE THE
PROTECTION OF THE POLICY WHILE IT EXISTS, BUT THE HISTORY OF PLEAS OF
LIMITATION SHOWS THEM TO BE GOOD ONLY BY LEGISLATIVE GRACE AND TO BE
SUBJECT TO A RELATIVELY LARGE DEGREE OF LEGISLATIVE CONTROL. 

THIS COURT, IN CAMPBELL V. HOLT, ADOPTED AS A WORKING HYPOTHESIS, AS
A MATTER OF CONSTITUTIONAL LAW, THE VIEW THAT STATUTES OF LIMITATION GO
TO MATTERS OF REMEDY, NOT TO DESTRUCTION OF FUNDAMENTAL RIGHTS.  THE
ABSTRACT LOGIC OF THE DISTINCTION BETWEEN SUBSTANTIVE RIGHTS AND
REMEDIAL OR PROCEDURAL RIGHTS MAY NOT BE CLEAR-CUT, BUT IT HAS BEEN
FOUND A WORKABLE CONCEPT TO POINT UP THE REAL AND VALID DIFFERENCE
BETWEEN RULES IN WHICH STABILITY IS OF PRIME IMPORTANCE AND THOSE IN
WHICH FLEXIBILITY IS A MORE IMPORTANT VALUE.  THE CONTRAST BETWEEN THE
ACCEPTABLE RESULT OF THE REASONING OF CAMPBELL V. HOLT AND ITS RATHER
UNSATISFACTORY RATIONALIZATION WAS WELL POINTED OUT BY MR. JUSTICE
HOLMES WHEN AS CHIEF JUSTICE OF MASSACHUSETTS HE WROTE: 

"NEVERTHELESS IN THIS CASE, AS IN OTHERS, THE PREVAILING JUDGMENT OF
THE PROFESSION HAS REVOLTED AT THE ATTEMPT TO PLACE IMMUNITIES WHICH
EXIST ONLY BY REASON OF SOME SLIGHT TECHNICAL DEFECT ON ABSOLUTELY THE
SAME FOOTING AS THOSE WHICH STAND ON FUNDAMENTAL GROUNDS.  PERHAPS THE
REASONING OF THE CASES HAS NOT ALWAYS BEEN AS SOUND AS THE INSTINCT
WHICH DIRECTED THE DECISIONS.  IT MAY BE THAT SOMETIMES IT WOULD HAVE
BEEN AS WELL NOT TO ATTEMPT TO MAKE OUT THAT THE JUDGMENT OF THE COURT
WAS CONSISTENT WITH CONSTITUTIONAL RULES, IF SUCH RULES WERE TO BE
TAKEN TO HAVE THE EXACTNESS OF MATHEMATICS.  IT MAY BE THAT IT WOULD
HAVE BEEN BETTER TO SAY DEFINITELY THAT CONSTITUTIONAL RULES, LIKE
THOSE OF THE COMMON LAW, END IN A PENUMBRA WHERE THE LEGISLATURE HAS A
CERTAIN FREEDOM IN FIXING THE LINE, AS HAS BEEN RECOGNIZED WITH REGARD
TO THE POLICE POWER.  CAMFIELD V. UNITED STATES, 167 U.S. 518, 523,
524.  BUT HOWEVER THAT MAY BE, MULTITUDES OF CASES HAVE RECOGNIZED THE
POWER OF THE LEGISLATURE TO CALL A LIABILITY INTO BEING WHERE THERE WAS
NONE BEFORE, IF THE CIRCUMSTANCES WERE SUCH AS TO APPEAL WITH SOME
STRENGTH TO THE PREVAILING VIEWS OF JUSTICE, AND IF THE OBSTACLE IN THE
WAY OF THE CREATION SEEMED SMALL."  DANFORTH V. GROTON WATER CO., 178
MASS. 472, 476, 59 N.E. 1033.  THIS STATEMENT WAS APPROVED AND FOLLOWED
BY THE NEW YORK COURT OF APPEALS IN ROBINSON V. ROBINS DRY DOCK CO.,
238 N.Y. 271, 144 N.E. 579. 

THE ESSENTIAL HOLDING IN CAMPBELL V. HOLT, SO FAR AS IT APPLIES TO
THIS CASE, IS SOUND AND SHOULD NOT BE OVERRULED.  THE FOURTEENTH
AMENDMENT DOES NOT MAKE AN ACT OF STATE LEGISLATION VOID MERELY BECAUSE
IT HAS SOME RETROSPECTIVE OPERATION.  WHAT IT DOES FORBID IS TAKING OF
LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW.  SOME RULES OF
LAW PROBABLY COULD NOT BE CHANGED RETROACTIVELY WITHOUT HARDSHIP AND
OPPRESSION, AND THIS WHETHER WISE OR UNWISE IN THEIR ORIGIN.  ASSUMING
THAT STATUTES OF LIMITATION, LIKE OTHER TYPES OF LEGISLATION, COULD BE
SO MANIPULATED THAT THEIR RETROACTIVE EFFECTS WOULD OFFEND THE
CONSTITUTION, CERTAINLY IT CANNOT BE SAID THAT LIFTING THE BAR OF A
STATUTE OF LIMITATION SO AS TO RESTORE A REMEDY LOST THROUGH MERE LAPSE
OF TIME IS PER SE AN OFFENSE AGAINST THE FOURTEENTH AMENDMENT.  NOR HAS
THE APPELLANT POINTED OUT SPECIAL HARDSHIPS OR OPPRESSIVE EFFECTS WHICH
RESULT FROM LIFTING THE BAR IN THIS CLASS OF CASES WITH RETROSPECTIVE
FORCE.  THIS IS NOT A CASE WHERE APPELLANT'S CONDUCT WOULD HAVE BEEN
DIFFERENT IF THE PRESENT RULE HAD BEEN KNOWN AND THE CHANGE FORESEEN. 
IT DOES NOT SAY, AND COULD HARDLY SAY, THAT IT SOLD UNREGISTERED STOCK
DEPENDING ON A STATUTE OF LIMITATION FOR SHELTER FROM LIABILITY.  THE
NATURE OF THE DEFENSES SHOWS THAT NO COURSE OF ACTION WAS UNDERTAKEN BY
APPELLANT ON THE ASSUMPTION THAT THE OLD RULE WOULD BE CONTINUED.  WHEN
THE ACTION WAS COMMENCED, IT NO DOUBT EXPECTED TO BE ABLE TO DEFEND BY
INVOKING MINNESOTA PUBLIC POLICY THAT LAPSE OF TIME HAD CLOSED THE
COURTS TO THE CASE, AND ITS LEGITIMATE HOPES HAVE BEEN DISAPPOINTED. 
BUT THE EXISTENCE OF THE POLICY AT THE TIME THE ACTION WAS COMMENCED
DID NOT, UNDER THE CIRCUMSTANCES, GIVE THE APPELLANT A CONSTITUTIONAL
RIGHT AGAINST CHANGE OF POLICY BEFORE FINAL ADJUDICATION.  WHATEVER
GRIEVANCE APPELLANT MAY HAVE AT THE CHANGE OF POLICY TO ITS
DISADVANTAGE, IT HAD ACQUIRED NO IMMUNITY FROM THIS SUIT THAT HAS
BECOME A FEDERAL CONSTITUTIONAL RIGHT.  THE JUDGMENT IS AFFIRMED. 

FN1  DONALDSON V. CHASE SECURITIES CORP., 209 MINN. 165, 296 N.W.
518. 

FN2  POMEROY V. NATIONAL CITY CO., 209 MINN. 155, 296 N.W. 513. 

FN3  THE SECTION READS: 

"OTHER ACTIONS OR PROSECUTIONS NOT LIMITED.  - NO ACTION SHALL BE
MAINTAINED FOR RELIEF UPON A SALE OF SECURITIES MADE IN VIOLATION OF
ANY OF THE PROVISIONS OF THIS ACT, OR UPON A SALE OF SECURITIES MADE IN
VIOLATION OF ANY OF THE PROVISIONS OF A REGISTRATION THEREOF UNDER THIS
ACT, OR FOR FAILURE TO DISCLOSE THAT THE SALE THEREOF WAS MADE IN
VIOLATION OF ANY OF THE PROVISIONS OF THIS ACT OR IN VIOLATION OF ANY
OF THE PROVISIONS OF A REGISTRATION THEREOF UNDER THIS ACT, OR UPON ANY
REPRESENTATION WITH RESPECT TO THE REGISTRATION OR NONREGISTRATION OF
THE SECURITY CLAIMED TO BE IMPLIED FROM ANY SUCH SALE, UNLESS COMMENCED
WITHIN SIX YEARS AFTER THE DATE ON WHICH SAID SECURITIES WERE DELIVERED
TO THE PURCHASER PURSUANT TO SUCH SALE, PROVIDED THAT IF, PRIOR TO THE
EFFECTIVE DATE OF THIS SECTION, MORE THAN FIVE YEARS SHALL HAVE ELAPSED
FROM THE DATE OF SUCH DELIVERY, THEN SUCH ACTION MAY BE BROUGHT WITHIN
A PERIOD OF ONE YEAR FOLLOWING SUCH EFFECTIVE DATE, AND PROVIDED
FURTHER THAT NO PURCHASER OF A SECURITY OTHERWISE ENTITLED THERETO
SHALL BRING ANY ACTION FOR RELIEF OF THE CHARACTER ABOVE SET FORTH WHO
SHALL HAVE REFUSED OR FAILED, WITHIN 30 DAYS AFTER THE RECEIPT THEREOF
BY SUCH PURCHASER, TO ACCEPT A WRITTEN OFFER FROM THE SELLER OR FROM
ANY PERSON WHO PARTICIPATED IN SUCH SALE TO TAKE BACK THE SECURITIES IN
QUESTION AND TO REFUND THE FULL AMOUNT PAID THEREFOR BY SUCH PURCHASER,
TOGETHER WITH INTEREST ON SUCH AMOUNT FROM THE DATE OF PAYMENT TO THE
DATE OF REPAYMENT, SUCH INTEREST TO BE COMPUTED AT THE SAME RATE AS THE
FIXED INTEREST OR DIVIDEND RATE, IF ANY, PROVIDED FOR IN SUCH
SECURITIES, OR, IF NO RATE IS SO PROVIDED, AT THE RATE OF SIX PER
CENTUM PER ANNUM, LESS IN EVERY CASE THE AMOUNT OF ANY INCOME RECEIVED
BY THE PURCHASER ON SUCH SECURITIES.  ANY WRITTEN OFFER SO MADE TO A
PURCHASER OF A SECURITY SHALL BE OF NO FORCE OR EFFECT UNLESS A
DUPLICATE THEREOF SHALL BE FILED WITH THE COMMISSIONER OF SECURITIES
PRIOR TO THE DELIVERY THEREOF TO SUCH PURCHASER. 

"NOTHING IN THIS SECTION, EXCEPT AS HEREIN EXPRESSLY SET FORTH, SHALL
LIMIT ANY OTHER RIGHT OF ANY PERSON TO BRING ANY ACTION IN ANY COURT
FOR ANY ACT INVOLVED IN OR RIGHT ARISING OUT OF A SALE OF SECURITIES OR
THE RIGHT OF THE STATE TO PUNISH ANY PERSON FOR ANY VIOLATION OF LAW." 
MASON'S MINN. STAT. 1941 SUPP., SEC. 3996-24. 

FN4  DONALDSON V. CHASE SECURITIES CORP., 216 MINN. 269, 276, 13
N.W.2D 1. 

FN5  THE PETITION FOR REHEARING FOR THE FIRST TIME RAISED TWO
QUESTIONS ALSO URGED HERE, BUT WHICH MAY BE DISPOSED OF SHORTLY. 

1.  THAT THE ACT IN QUESTION VIOLATED THE FOURTEENTH AMENDMENT IN
DENYING EQUAL PROTECTION OF THE LAW.  EVEN IF SEASONABLY MADE, WHICH IS
DOUBTFUL (SEE AMERICAN SURETY CO. V. BALDWIN, 287 U.S. 156), THE CLAIM
IS WITHOUT MERIT.  THE STATUTE ON ITS FACE IS A GENERAL ONE, APPLYING
TO ALL SIMILARLY SITUATED PERSONS OR TRANSACTIONS.  IT APPEARS THAT A
NUMBER OF CASES WERE INVOLVED.  AMONG OTHER LITIGATIONS WERE STERN V.
NATIONAL CITY CO. (D.C. MINN.), 25 F.SUPP.  948, AFF'D, SUB NOM. CITY
CO. OF NEW YORK V. STERN (C.C.A.8TH), 110 F.2D 601, REV'D, 312 U.S.
666; CHASE SECURITIES CORP. V. VOGEL (C.C.A.8TH), 110 F.2D 607, REV'D,
312 U.S. 666.  THESE WERE REMANDED BY THIS COURT TO THE CIRCUIT COURT
OF APPEALS "FOR FURTHER PROCEEDINGS WITH RESPECT TO ANY QUESTIONS NOT
DETERMINED BY THE SUPREME COURT OF MINNESOTA" IN THE POMEROY AND
DONALDSON CASES.  ALSO IN THIS CLASS OF CASES WAS SHEPARD V. CITY CO.
OF NEW YORK (D.C. MINN.), 24 F.SUPP.  682.  THAT THE MOTIVATION FOR THE
ACT MAY HAVE ARISEN IN A FEW CASES OR IN A SINGLE CASE WOULD NOT
ESTABLISH THAT A GENERAL ACT SUCH AS WE HAVE DESCRIBED WOULD DENY EQUAL
PROTECTION. 

2.  THE CLAIM THAT APPELLANT WAS DENIED DUE PROCESS OF LAW BECAUSE IT
HAD NO OPPORTUNITY TO SUBMIT TESTIMONY OF LEGISLATORS AS TO LEGISLATIVE
INTENT APPEARS TO US FRIVOLOUS.  THE STATE COURT HAS SEEN FIT TO DRAW
INFERENCES AS TO THE INTENT OF AN ACT FROM ITS TIMING AND FROM ITS
PROVISIONS AND FROM BACKGROUND FACTS OF PUBLIC NOTORIETY.  BUT THAT
DOES NOT MEAN THAT THE JUDGMENT MUST BE SET ASIDE TO AFFORD A PARTY THE
OPPORTUNITY TO CALL LEGISLATORS TO PROVE THAT THE COURT'S INFERENCES AS
TO INTENT WERE WRONG.  STATUTES ORDINARILY BESPEAK THEIR OWN INTENTION
AND WHEN THEIR MEANING IS OBSCURE OR DUBIOUS A STATE COURT MAY
DETERMINE FOR ITSELF WHAT SOURCES OF EXTRASTATUTORY ENLIGHTENMENT IT
WILL CONSULT.  OUR CUSTOM OF GOING BACK OF AN ACT TO EXPLORE
LEGISLATIVE HISTORY DOES NOT OBLIGATE STATE COURTS TO DO SO, AND THERE
IS NOTHING IN THE CONSTITUTION WHICH BY THE WIDEST STRETCH OF THE
IMAGINATION COULD BE HELD TO REQUIRE TAKING TESTIMONY FROM A FEW OR A
MAJORITY OF THE LEGISLATORS TO PROVE LEGISLATIVE "INTENT." 

FN6  DONALDSON V. CHASE SECURITIES CORP., 216 MINN. 269, 270-71. 

FN7  POMEROY V. NATIONAL CITY CO., 209 MINN. 155, 156, 296 N.W. 513. 

FN8  APPELLANT INVOKES THE PRINCIPLE OF OUR DECISIONS IN WILLIAM
DANZER & CO. V. GULF & SHIP ISLAND R. CO., 268 U.S. 633, AND DAVIS V.
MILLS, 194 U.S. 451.  BUT THE STATE COURT SO CONSTRUED THE RELATIONSHIP
BETWEEN ITS LIMITATION ACTS AND THE STATE LAW CREATING THE ASSERTED
LIABILITY AS TO MAKE THESE CASES INAPPLICABLE, AND WE DO NOT THINK IT
DID SO IMPROPERLY.  IN THE DANZER CASE IT WAS HELD THAT WHERE A STATUTE
IN CREATING A LIABILITY ALSO PUT A PERIOD TO ITS EXISTENCE, A
RETROACTIVE EXTENSION OF THE PERIOD AFTER ITS EXPIRATION AMOUNTED TO A
TAKING OF PROPERTY WITHOUT DUE PROCESS OF LAW.  READ WITH THE DANZER
CASE, DAVIS V. MILLS STANDS FOR THE PROPOSITION THAT THE RESULT MAY BE
THE SAME IF THE PERIOD OF LIMITATION IS PRESCRIBED BY A DIFFERENT
STATUTE IF IT "WAS DIRECTED TO THE NEWLY CREATED LIABILITY SO
SPECIFICALLY AS TO WARRANT SAYING THAT IT QUALIFIED THE RIGHT."  194
U.S. 454.  BUT THE SITUATION HERE PLAINLY DOES NOT PARALLEL THAT IN THE
DANZER CASE, AND THE STATE COURT WHOSE PROVINCE IT IS TO CONSTRUE STATE
LEGISLATION HAS FOUND NO PARALLEL TO THE DAVIS CASE.  AT THE TIME THIS
ACTION WAS COMMENCED THE BLUE SKY LAW OF MINNESOTA HAD IMPOSED ON
APPELLANT A DUTY; IT HAD NOT EXPLICITLY CREATED A LIABILITY.  THE
LIABILITY WAS IMPLIED BY THE STATE'S COMMON LAW; THE PERIOD OF
LIMITATION WAS FOUND ONLY IN THE GENERAL STATUTE OF LIMITATIONS ENACTED
MANY YEARS EARLIER.  THE STATE COURT CONCLUDED THAT THE CHALLENGED
STATUTE DID NOT CONFER ON APPELLEES A NEW RIGHT OR SUBJECT APPELLANT TO
A NEW LIABILITY.  IT CONSIDERED THAT THE EFFECT OF THE LEGISLATION WAS
MERELY TO REINSTATE A LAPSED REMEDY, THAT APPELLANT HAD ACQUIRED NO
VESTED RIGHT TO IMMUNITY FROM A REMEDY FOR ITS WRONG IN SELLING
UNREGISTERED SECURITIES, AND THAT REINSTATEMENT OF THE REMEDY BY THE
STATE LEGISLATURE DID NOT INFRINGE ANY FEDERAL RIGHT UNDER THE
FOURTEENTH AMENDMENT, AS EXPOUNDED BY THIS COURT IN CAMPBELL V. HOLT. 

FN9  WASSON V. STATE, 187 ARK. 537, 60 S.W.2D 1020; BUSSEY V. BISHOP,
169 GA. 251, 150 S.E. 78; BOARD OF EDUCATION V. BLODGETT, 155 ILL. 441,
40 N.E. 1025; JACKSON V. EVANS, 284 KY. 748, 145 S.W.2D 1061; WILKES
COUNTY V. FORESTER, 204 N.C. 163, 167 S.E. 691; RAYMER V. COMLEY LUMBER
CO., 169 OKLA. 576, 38 P.2D 8; CATHEY V. WEAVER, 111 TEX. 515, 242 S.W.
447; RE SWAN'S ESTATE, 95 UTAH 408, 79 P.2D 999; EINGARTNER V. ILLINOIS
STEEL CO., 103 WIS. 373, 79 N.W. 433. 

FN10  APPELLANT CITES 2 LEWIS' SUTHERLAND, STATUTORY CONSTRUCTION (2D
ED. 1904) SEC. 708, P. 1288; 1 WOOD, LIMITATIONS (4TH ED. 1916) SEC.
11, PP. 47-49; 24 COL. LAW REV. 803(1924); 10 CORN.  L.Q. 212(1925); 2
GEO. WASH. LAW REV. 100(1933); ROTTSCHAEFER, CONSTITUTIONAL LAW (1939)
SEC. 252, PP. 548-9. 

FN11  SEE LA. CIV. CODE, ARTS. 3457-3459; BILLINGS V. HALL, 7 CAL. 1,
4; GODDARD'S HEIRS V. URQUHART, 6 LA. 659, 673. 

FN12  SEE GILBERT V. SELLECK, 93 CONN. 412, 106 A. 439; IN RE ESTATE
OF DANIEL, 208 MINN. 420, 294 N.W. 465; BATES V. CULLUM, 177 PA. 633,
35 A. 861. 

FN13  FOR HISTORY OF THESE ACTS SEE ATKINSON, "SOME PROCEDURAL
ASPECTS OF THE STATUTE OF LIMITATIONS," 27 COL. LAW REV. 157(1927). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





AMBASSADOR, INC. V. UNITED STATES, 325 U.S. 317 


NO. 446.  ARGUED MARCH 9, 12, 1945.  - DECIDED MAY 21, 1945.  -
AFFIRMED. 


1.  THE DISTRICT COURT PROPERLY ENJOINED THE APPELLANT PROPRIETORS OF
HOTELS FROM COLLECTING, IN VIOLATION OF A REGULATION FILED BY THE
TELEPHONE COMPANIES WITH THE FEDERAL COMMUNICATIONS COMMISSION PURSUANT
TO THE COMMUNICATIONS ACT, SURCHARGES FROM GUESTS WHO MAKE INTERSTATE
OR FOREIGN LONG DISTANCE TELEPHONE CALLS OR RECEIVE SUCH CALLS
"COLLECT."  PP. 324, 326. 

2.  QUESTIONS OF THE JUSTNESS OR REASONABLENESS OF THE REGULATION
MUST BE ADDRESSED IN THE FIRST INSTANCE TO THE COMMISSION.  P. 325. 

3.  IN THE CIRCUMSTANCES OF THIS CASE, IT WAS WITHIN THE DISCRETION
OF THE DISTRICT COURT TO ENJOIN THE HOTELS, THOUGH IT DID NOT ENJOIN
THE TELEPHONE COMPANIES.  P. 325. 

4.  IT IS UNNECESSARY HERE TO DETERMINE WHETHER THE HOTELS WERE
"AGENTS" OF THE TELEPHONE COMPANY OR "SUBSCRIBERS."  WHATEVER THE
RELATIONSHIP, IT WAS ONE WHICH THE STATUTE CONTEMPLATES SHALL BE
GOVERNED BY REASONABLE REGULATIONS INITIATED BY THE TELEPHONE COMPANY
BUT SUBJECT TO THE APPROVAL AND REVIEW OF THE COMMISSION.  P. 326. 

AMBASSADOR, INC. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

DIRECT APPEAL UNDER THE EXPEDITING ACT FROM A DECREE SUSTAINING THE
VALIDITY OF A TARIFF FILED WITH THE FEDERAL COMMUNICATIONS COMMISSION
AND ENJOINING ITS VIOLATION BY THE DEFENDANT HOTELS. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS INSTITUTED AT REQUEST OF THE FEDERAL COMMUNICATIONS
COMMISSION IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA.  THE CHESAPEAKE & POTOMAC TELEPHONE CO., WHICH IS ENGAGED
IN RENDERING TELEPHONE SERVICE IN THE DISTRICT OF COLUMBIA, AND THE
AMERICAN TELEPHONE & TELEGRAPH CO. WERE MADE DEFENDANTS, AS ALSO WERE
THE APPELLANTS, COMPRISING THE PROPRIETORS OF TWENTY-SEVEN HOTELS IN
THE DISTRICT OF COLUMBIA.  THE COMPLAINT ASKS AND THE COURT BELOW HAS
GRANTED AN INJUNCTION WHICH FORBIDS THE HOTELS TO MAKE CHARGES AGAINST
THEIR GUESTS IN CONNECTION WITH ANY INTERSTATE OR FOREIGN MESSAGE TOLL
SERVICE TO OR FROM THEIR PREMISES, OTHER THAN THE TOLL CHARGES OF THE
TELEPHONE COMPANIES AND APPLICABLE FEDERAL TAXES.  THE PROHIBITION IS
BASED ON A PROVISION TO THAT EFFECT IN THE TARIFF FILED BY THE
TELEPHONE COMPANIES.  UPON THE TRIAL, EVIDENCE WAS LIMITED BY
STIPULATION TO THE FACTS ABOUT THE SHOREHAM HOTEL, ACCEPTED AS TYPICAL
OF ALL DEFENDANTS. 

TELEPHONE SERVICE IS AVAILABLE TO PATRONS OF THE HOTEL WITHOUT A
CHARGE BY THE HOTEL.  IN OR NEAR THE LOBBIES, TELEPHONE BOOTHS HAVE
DIRECT CONNECTION WITH TELEPHONE COMPANY CENTRAL OFFICES.  CALLS CAN
THERE BE MADE WITHOUT INVOLVING THE SERVICES OF THE HOTEL PERSONNEL AND
AT THE USUAL TARIFF RATES OF THE TELEPHONE COMPANY PAID THROUGH ITS
COIN BOXES. 

HOWEVER, MODERN HOTEL STANDARDS REQUIRE THAT TELEPHONE SERVICE ALSO
BE MADE AVAILABLE IN THE ROOMS.  EQUIPMENT FOR THIS PURPOSE IS
SPECIFIED BY THE HOTEL BUT IS INSTALLED AND OWNED BY THE TELEPHONE
COMPANY.  THE HOTEL PAYS A MONTHLY CHARGE FOR ITS USE, AND ITS
OPERATION IS AT THE HOTEL'S EXPENSE.  THE OPERATING COST IS
SUBSTANTIAL, RENTALS OF THE SHOREHAM IN 1943 BEING $8,680.10 AND
PAYROLLS FOR OPERATION AMOUNTING TO $21,895.62. 

TYPICAL EQUIPMENT CONSISTS OF A PRIVATE BRANCH EXCHANGE, KNOWN AS A
PBX BOARD, CONNECTED WITH A NUMBER OF OUTSIDE OR TRUNK LINES AND ALSO
WITH EXTENSION LINES TO EACH SERVICED ROOM, AND OTHER ITEMS.  THIS
EQUIPMENT PERMITS CALLS FOR VARIOUS KINDS OF ROOM SERVICE,
COMMUNICATION BETWEEN GUESTS, AND CALLS FROM STATION TO STATION WITHIN
THE HOTEL FOR WHICH NO USE OF OTHER LINES OF THE TELEPHONE COMPANY IS
NECESSARY.  THE SAME SWITCHBOARD AND ITS HOTEL-EMPLOYED OPERATORS ALSO
HANDLE BOTH INCOMING AND OUTGOING CALLS FOR GUESTS, INCLUDING MANY LONG
DISTANCE MESSAGES. 

SO FAR AS THE TELEPHONE COMPANY IS CONCERNED, THE TOLL MESSAGE COMING
TO ITS CENTRAL OFFICE FROM THE HOTEL SWITCHBOARD BOARD IS HANDLED MUCH
AS A SIMILAR MESSAGE FROM A RESIDENCE OR BUSINESS STATION.  WITHIN THE
HOTEL, HOWEVER, ROOM TELEPHONE SERVICE NECESSITATES ADDITIONAL LABOR AS
WELL AS USE OF THE EQUIPMENT.  WHEN A CALL IS MADE FROM THE STATION IN
A ROOM, IT IS PLACED WITH THE SWITCHBOARD OPERATOR EMPLOYED BY THE
HOTEL, AND SHE IN TURN PLACES THE CALL WITH THE TELEPHONE COMPANY'S
LONG DISTANCE OPERATOR.  IT IS CUSTOMARY ALSO TO RENDER SERVICES
DESCRIBED AS SECRETARIAL.  INCOMING MESSAGES MAY BE RECEIVED DURING THE
GUEST'S ABSENCE AND MEMORANDA OF THEM ARE MADE FOR AND DELIVERED TO
HIM.  OUTGOING MESSAGES MAY BE TRANSMITTED FOR THE GUEST.  INFORMATION
AS TO HIS WHEREABOUTS MAY BE LEFT WITH THE OPERATOR FOR COMMUNICATION
TO CALLERS; HE MAY ARRANGE TO BE REACHED AT OTHER LOCATIONS THAN HIS
ROOM; HE MAY ARRANGE TO HAVE TELEPHONE SERVICE SUSPENDED FOR A PERIOD;
INCOMING CALLS MAY BE LIMITED TO THOSE FROM DESIGNATED PERSONS, AND
VARIOUS OTHER SERVICES HELPFUL TO COMFORTABLE LIVING ARE SUPPLIED BY
THOSE IN CHARGE OF THE INTERIOR TELEPHONE SYSTEM. 

EACH LONG DISTANCE CALL PLACED THROUGH THE HOTEL'S SWITCHBOARD IS
CHARGED BY THE TELEPHONE COMPANY TO THE HOTEL, NOT TO THE GUEST.  THE
HOTEL PAYS THE CHARGE AND IS REIMBURSED, LESS CREDIT LOSSES, BY
COLLECTIONS FROM THE GUEST.  THE REIMBURSEMENT ITEM IS SEPARATELY
STATED ON THE GUEST'S BILL AND IS NOT ITSELF INVOLVED IN THIS
CONTROVERSY. 

THE HOTEL ALSO SEEKS TO RECOUP THE COST OF ITS SERVICE, INCLUDING
EQUIPMENT RENTALS, AND PERHAPS SOME MARGIN OF PROFIT, BY A SERVICE
CHARGE TO THE GUESTS WHO MAKE LONG DISTANCE CALLS FROM THEIR ROOMS. 
THIS CHARGE VARIES IN DIFFERENT HOTELS BUT THIS TYPICAL CASE SHOWS
CHARGES OF TEN CENTS FOR TOLL CALLS WHERE THE TELEPHONE TARIFF IS ONE
DOLLAR OR LESS, TEN PERCENT OF THE TELEPHONE TARIFF WHERE THE CHARGE IS
MORE THAN ONE DOLLAR, WITH A MAXIMUM OF THREE DOLLARS PER CALL.  THIS
SERVICE CHARGE APPEARS ON THE GUEST'S BILL AS A SEPARATE ITEM, BUT IS
STATED, LIKE THE REIMBURSEMENT CHARGE, AS "LONG DISTANCE," ABBREVIATED
TO "LDIST". 

IN JANUARY 1942, A PROCEEDING WAS INSTITUTED BY THE FEDERAL
COMMUNICATIONS COMMISSION FOR THE PURPOSE OF DETERMINING WHETHER THE
CHARGES COLLECTED BY HOTELS, APARTMENT HOUSES AND CLUBS IN THE DISTRICT
OF COLUMBIA IN CONNECTION WITH INTERSTATE AND FOREIGN TELEPHONE
COMMUNICATION WERE SUBJECT TO THE JURISDICTION OF THE COMMISSION UNDER
THE COMMUNICATIONS ACT AND WHAT TARIFFS, IF ANY, SHOULD BE FILED WITH
THE COMMISSION SHOWING SUCH CHARGES.  NO SUCH TARIFFS WERE ON FILE WITH
THE COMMISSION AT THE TIME THE PROCEEDING WAS INSTITUTED. 

THE COMMISSION, DECEMBER 10, 1943, FOUND THAT IT DOES HAVE
JURISDICTION UNDER THE COMMUNICATIONS ACT OVER THE CHARGES COLLECTED BY
HOTELS AND OTHERS AND RULED THAT, IF SUCH CHARGES ARE TO BE COLLECTED
AT ALL, THEY MUST BE SHOWN ON TARIFFS ON FILE WITH THE COMMISSION.  IT
THOUGHT THAT THE HOTEL SHOULD BE REGARDED AS THE AGENT OF THE TELEPHONE
COMPANIES.  IT ISSUED AN ORDER DIRECTING THE TWO TELEPHONE COMPANIES
EITHER TO FILE APPROPRIATE TARIFFS SHOWING CHARGES COLLECTED BY THE
HOTELS IN CONNECTION WITH INTERSTATE AND FOREIGN TELEPHONE
COMMUNICATIONS OR TO FILE AN APPROPRIATE TARIFF REGULATION CONTAINING A
SPECIFIC PROVISION WITH RESPECT TO CONDITIONS UNDER WHICH SUCH
INTERSTATE AND FOREIGN SERVICE WOULD BE FURNISHED TO HOTELS, APARTMENT
HOUSES AND CLUBS. 

CONFRONTED WITH THESE ALTERNATIVES, THE CHESAPEAKE & POTOMAC
TELEPHONE COMPANY FILED A TARIFF PROVISION IN WHICH THE AMERICAN
TELEPHONE & TELEGRAPH COMPANY CONCURRED, WHICH READS AS FOLLOWS: 

"MESSAGE TOLL TELEPHONE SERVICE IS FURNISHED TO HOTELS, APARTMENT
HOUSES AND CLUBS UPON THE CONDITION THAT USE OF THE SERVICE BY GUESTS,
TENANTS, MEMBERS, OR OTHERS SHALL NOT BE MADE SUBJECT TO ANY CHARGE BY
ANY HOTEL, APARTMENT HOUSE OR CLUB IN ADDITION TO THE MESSAGE TOLL
CHARGES OF THE TELEPHONE COMPANY AS SET FORTH IN THIS TARIFF." 

THIS TARIFF PROVISION BECAME EFFECTIVE BY ITS TERMS FEBRUARY 15,
1944.  FOUR DAYS LATER, THIS SUIT WAS INSTITUTED TO ENJOIN THE HOTELS
FROM COLLECTING CHARGES MADE IN VIOLATION OF THE TARIFF PROVISION, AND
TO ENJOIN THE TELEPHONE COMPANIES FROM FURNISHING SUCH SERVICE TO THESE
HOTELS OR OTHERS WHICH CONTINUED TO MAKE CHARGES. 

THE DISTRICT COURT SUSTAINED THE VALIDITY OF THE TARIFF.  FN1  IT
REGARDED THE HOTELS AS SUBSCRIBERS RATHER THAN AS AGENTS OF THE
TELEPHONE COMPANIES.  IT HELD THAT THE TARIFF WAS VIOLATED BY
COLLECTION OF SURCHARGES FROM GUESTS WHO MAKE INTERSTATE OR FOREIGN
LONG DISTANCE TELEPHONE CALLS OR RECEIVE SUCH CALLS "COLLECT."  THE
COURT DID NOT PASS UPON THE JUSTNESS OR REASONABLENESS OF THE TARIFF,
BEING OF OPINION THAT SUCH QUESTIONS WERE IN THE FIRST INSTANCE TO BE
SUBMITTED TO AND DETERMINED BY THE COMMISSION IN APPROPRIATE
PROCEEDINGS.  AN INJUNCTION ISSUED AGAINST THE HOTELS BUT NOT AGAINST
THE TELEPHONE COMPANIES, THE COURT, HOWEVER, RETAINING JURISDICTION
OVER THE PROCEEDINGS AS TO ALL DEFENDANTS FOR THE PURPOSE OF ISSUING
SUCH FURTHER ORDERS AS MIGHT BE NECESSARY TO EFFECTUATE ITS DECISION. 
DIRECT APPEAL WAS TAKEN BY THE HOTEL DEFENDANTS TO THIS COURT.  FN2 

IT HAS LONG BEEN RECOGNIZED THAT IF COMMUNICATIONS CHARGES ARE TO
CORRESPOND EVEN ROUGHLY TO THE COST OF RENDERING THE SERVICE, THE USE
TO WHICH TELEPHONE INSTALLATIONS MAY BE PUT BY SUBSCRIBERS MUST BE
SUBJECT TO SOME KIND OF CLASSIFICATION AND REGULATION WHICH WILL
CONFORM THE ACTUAL SERVICE TO THAT CONTRACTED FOR.  FAMILIAR EXAMPLES
ARE THE CLASSIFICATION OF RESIDENCE AS AGAINST BUSINESS SERVICE WITH A
REQUIREMENT THAT THE SUBSCRIBER CONFINE HIS USE OF THE INSTRUMENTS
ACCORDINGLY.  OF COURSE, THE SUBSCRIBER WHO INSTALLS A PRIVATE BRANCH
EXCHANGE WITH MULTIPLE TRUNK LINES AND MANY EXTENSIONS HAS OBVIOUSLY
CONTRACTED FOR A CLASS OF SERVICE DIFFERENT FROM ONE WHOSE INSTALLATION
CONSISTS OF A SINGLE STATION.  ONE OF THE PROBLEMS INCIDENT TO THE
SERVICE OF A SUBSCRIBER WHO TAKES FACILITIES GREATLY IN EXCESS OF HIS
OWN NEEDS IN ORDER TO ACCOMMODATE OTHERS IS TO FIX UPON WHAT TERMS HE
MAY EXTEND THE USE OF TELEPHONE FACILITIES TO OTHERS.  THIS IS AN
ASPECT OF THE PROBLEM OF RESALE OF UTILITY SERVICE WHICH IS NOT
CONFINED TO THE TELEPHONE BUSINESS.  FN3 

THE COMMUNICATIONS ACT OF 1934 RECOGNIZES THAT TARIFFS FILED BY
COMMUNICATIONS COMPANIES MAY CONTAIN REGULATIONS BINDING ON SUBSCRIBERS
AS TO THE PERMISSIBLE USE OF THE RENTED COMMUNICATIONS FACILITIES.  THE
SUPERVISORY POWER OF THE COMMISSION IS NOT LIMITED TO RATES AND TO
SERVICES, BUT THE FORMULA OFT REPEATED IN THE ACT TO DESCRIBE THE
COMMISSION'S RANGE OF POWER OVER THE REGULATED COMPANIES IS "CHARGES,
PRACTICES, CLASSIFICATIONS, AND REGULATIONS FOR AND IN CONNECTION WITH
SUCH COMMUNICATION SERVICE."  48 STAT. 1070, 47 U.S.C. SEC. 201(B).  IT
IS IN ALL OF THESE MATTERS THAT THE ACT REQUIRES THE FILED TARIFFS TO
BE "JUST AND REASONABLE" AND DECLARES THAT OTHERWISE THEY ARE
UNLAWFUL.  FN4  BY NONE OF THESE DEVICES MAY THE COMPANIES PERPETRATE
AN UNJUST OR UNREASONABLE DISCRIMINATION OR PREFERENCE.  FN5  ALL OF
THESE MUST BE FILED WITH THE COMMISSION IN THE FORM IT PRESCRIBES, MAY
NOT BE CHANGED EXCEPT AFTER DUE NOTICE, AND MUST BE OBSERVED IN THE
CONDUCT OF ITS BUSINESS BY THE COMPANY.  FN6  THESE PROVISIONS CLEARLY
AUTHORIZE THE COMPANIES TO PROMULGATE RULES BINDING ON PBX SUBSCRIBERS
AS TO THE TERMS UPON WHICH THE USE OF THE FACILITIES MAY BE EXTENDED TO
OTHERS NOT THEMSELVES SUBSCRIBERS. 

OF COURSE, SUCH AUTHORITY IS NOT UNLIMITED.  THE TELEPHONE COMPANIES
MAY NOT, IN THE GUISE OF REGULATING THE COMMUNICATIONS SERVICE, ALSO
REGULATE THE HOTEL OR APARTMENT HOUSE OR ANY OTHER BUSINESS.  BUT WHERE
A PART OF THE SUBSCRIBER'S BUSINESS CONSISTS OF RETAILING TO PATRONS A
SERVICE DEPENDENT ON ITS OWN CONTRACT FOR UTILITY SERVICE, THE
REGULATION WILL NECESSARILY AFFECT, TO THAT EXTENT, ITS THIRD PARTY
RELATIONSHIPS.  SUCH A REGULATION IS NOT INVALID PER SE MERELY BECAUSE,
AS TO THE COMMUNICATIONS SERVICE AND ITS INCIDENTS, IT PLACES
LIMITATION UPON THE SUBSCRIBER AS TO THE TERMS UPON WHICH HE MAY INVITE
OTHERS TO COMMUNICATE THROUGH SUCH FACILITIES. 

IT IS URGED, HOWEVER, THAT THE REGULATION IN QUESTION IS UNLAWFUL
BECAUSE IT IS UNREASONABLE.  IT IS SAID THAT IT INVADES THE
RELATIONSHIP BETWEEN HOTEL AND GUEST EXCESSIVELY, AND DENIES TO THE
HOTEL THE RIGHT REASONABLY TO RECOUP ITS COST AND TO PROFIT BY THE
SERVICES IT RENDERS.  BUT WE AGREE WITH THE DISTRICT COURT THAT WHERE
THE CLAIM OF UNLAWFULNESS OF A REGULATION IS GROUNDED IN LACK OF
REASONABLENESS, THE OBJECTION MUST BE ADDRESSED TO THE COMMISSION AND
NOT AS AN ORIGINAL MATTER BROUGHT TO THE COURT.  WE THINK THAT THE ACT
CONFERS JURISDICTION UPON THE COMMISSION TO HEAR APPELLANTS' GRIEVANCES
AGAINST THE SUBSTANCE OF THIS REGULATION.  INDEED, APPELLANTS INFORM US
THAT THE AMERICAN HOTEL ASSOCIATION, ON BEHALF OF ITS MEMBERS,
INCLUDING THE APPEALING HOTELS, HAS FILED A FORMAL COMPLAINT WITH THE
COMMISSION ALLEGING THAT THE NEW PROVISION OF THE TARIFF SCHEDULE WAS
UNREASONABLE, DISCRIMINATORY AND UNLAWFUL, AND ASKING FOR INVESTIGATION
AND, AT THE SAME TIME, ASSERTING THAT THE TARIFF WAS ILLEGAL.  ACTION
ON THAT COMPLAINT HAS BEEN HELD IN ABEYANCE BY THE COMMISSION PENDING
THE FINAL DECISION ON THE JURISDICTIONAL QUESTION IN THIS SUIT. 

IT IS CLEAR THAT THE CHARGES BEING MADE IN THIS CASE VIOLATE THE
REGULATION.  THE CHARGES MADE ARE NOT BASED ON THE SERVICE RENDERED BY
THE HOTEL BUT VARY IN ACCORDANCE WITH THE TOLL CHARGE MADE BY THE
TELEPHONE COMPANY FOR COMMUNICATIONS SERVICES.  SO FAR AS APPEARS, THE
SERVICE RENDERED BY THE HOTEL IN HANDLING A GUEST'S TOLL CALL FROM
WASHINGTON TO BALTIMORE IS SUBSTANTIALLY THE SAME AS FOR A CALL TO SAN
FRANCISCO.  BUT, FOR LIKE SERVICE, THE CHARGE VARIES WITH THE AMOUNT OF
THE TELEPHONE TARIFF FOR THE COMMUNICATION.  THE GUEST'S CHARGES ARE SO
IDENTIFIED WITH THE COMMUNICATIONS SERVICE THAT THEY ARE BROUGHT WITHIN
THE PROHIBITIONS OF THIS REGULATION. 

SINCE THE REGULATION, APART FROM QUESTIONS OF REASONABLENESS WHICH
MUST BE PRESENTED TO THE COMMISSION, IS A VALID REGULATION OF THE
SUBSCRIBER'S USE OF THE TELEPHONE FACILITIES INVOLVED, A DEPARTURE FROM
THE REGULATION IS FORBIDDEN BY THE ACT AND THE PROSECUTION OF AN ACTION
TO RESTRAIN A VIOLATION IS AUTHORIZED.  FN7  WHEN AN ACTION FOR
ENFORCEMENT IS INSTITUTED IN ANY DISTRICT COURT, THE ACT EXPRESSLY
PROVIDES THAT IT SHALL BE LAWFUL "TO INCLUDE AS PARTIES, IN ADDITION TO
THE CARRIER, ALL PERSONS INTERESTED IN OR AFFECTED BY THE CHARGE,
REGULATION, OR PRACTICE UNDER CONSIDERATION," AND DECREES MAY BE MADE
AGAINST SUCH PARTIES IN THE SAME MANNER AND TO THE SAME EXTENT AS
AUTHORIZED WITH RESPECT TO CARRIERS.  FN8  ONE CAN HARDLY GAINSAY THE
GOVERNMENT'S ASSERTION THAT THE APPELLANTS HERE ARE PERSONS INTERESTED
IN AND AFFECTED BY THE REGULATION IN QUESTION AND, THEREFORE, ARE
PROPER PARTIES DEFENDANT IN THE ACTION AND INJUNCTION COULD PROPERLY
ISSUE AGAINST THEM.    IT IS URGED, HOWEVER, THAT INASMUCH AS THE COURT
DID NOT ENJOIN THE TELEPHONE COMPANIES, THE HOTELS SHOULD NOT BE
ENJOINED.  FOUR DAYS AFTER THE EFFECTIVE DATE OF THIS REGULATION, THE
HOTELS HAD INDICATED NO INTENTION TO COMPLY WITH IT ALTHOUGH THEY HAD
HAD DUE NOTICE.  IT WAS WELL WITHIN THE DISCRETION OF THE TRIAL COURT
TO CONCLUDE THAT THIS JUSTIFIED AN INJUNCTION.  FOUR DAYS OF DEFAULT BY
THE SUBSCRIBER, HOWEVER, MIGHT NOT BE REGARDED AS REQUIRING AN
INJUNCTION WHICH WOULD COMPEL THE TELEPHONE COMPANIES TO CUT OFF
SERVICE ON WHICH MANY PERSONS RELY.  WE ARE UNABLE TO SEE THAT THE
HOTELS HAVE BEEN PREJUDICED BY THE FAILURE TO ENJOIN THE TELEPHONE
COMPANIES OR ARE IN A POSITION TO COMPLAIN OF THE OMISSION OF WHAT
WOULD HAVE BEEN AN ADDITIONAL HARDSHIP TO THEMSELVES. 

MUCH HAS BEEN SAID IN ARGUMENT ABOUT THE THEORY OF THE RELATIONSHIP
BETWEEN THE HOTEL AND THE TELEPHONE COMPANY AND THE DISCREPANCY BETWEEN
THE VIEW OF THE COMMISSION THAT THE CONTRACT CREATED AN AGENCY AND THAT
OF THE DISTRICT JUDGE WHO SAID THAT THE EVIDENCE FAILS TO SHOW THAT THE
HOTELS ARE AGENTS OF THE TELEPHONE COMPANY, AND HELD THAT "THE HOTELS
ARE SUBSCRIBERS."  WE DO NOT THINK IT IS NECESSARY IN DETERMINING THE
APPLICATION OF A REGULATORY STATUTE TO ATTEMPT TO FIT THE REGULATED
RELATIONSHIP INTO SOME COMMON-LAW CATEGORY.  IT IS SUFFICIENT TO SAY
THAT THE RELATION IS ONE WHICH THE STATUTE CONTEMPLATES SHALL BE
GOVERNED BY REASONABLE REGULATIONS INITIATED BY THE TELEPHONE COMPANY
BUT SUBJECT TO THE APPROVAL AND REVIEW OF THE FEDERAL COMMUNICATIONS
COMMISSION. 

WITHOUT PREJUDICE TO DETERMINATION BY THE COMMISSION OF ANY OF THE
QUESTIONS RAISED IN THIS CASE, WE HOLD THAT THE INJUNCTION WAS PROPERLY
ISSUED AND THE JUDGMENT BELOW IS AFFIRMED. 

FN1  THE OPINION WAS RENDERED ORALLY AND IS NOT REPORTED. 

FN2  PURSUANT TO SEC. 2 OF EXPEDITING ACT, 32 STAT. 823; 36 STAT.
1167; 15 U.S.C. SEC. 29; 49 U.S.C. SEC. 45; AND COMMUNICATIONS ACT OF
1934, 48 STAT. 1093, 47 U.S.C. SEC. 401(D).  ALSO SEC. 238(1) OF
JUDICIAL CODE AS AMENDED, 43 STAT. 938, 28 U.S.C. SEC. 345(1). 

FN3  CF. RE NEW YORK TELEPHONE CO., 26 P.U.R. (N.S.)  311(N.Y. 1938),
30 P.U.R. (N.S.)  350(N.Y. 1939); PEOPLE EX REL. PUBLIC SERVICE
COMMISSION V. NEW YORK TELEPHONE CO., 262 APP. DIV. 440, 29 N.Y.S.2D
513(1941), AFF'D WITHOUT OPINION, 287 N.Y. 803, 40 N.E.2D 1020; HOTEL
PFISTER V. WISCONSIN TELEPHONE CO., 203 WIS. 20, 233 N.W. 617(1930);
JEFFERSON HOTEL CO. V. SOUTHWESTERN BELL TELEPHONE CO., 15 P.U.R.
(N.S.)  265(MO. 1936); RE HOTEL MARION CO., P.U.R. 1920 D, 466(ARK. 
1920); CONNOLLY V. BURLESON, P.U.R. 1920 C, 243(N.Y. 1920); RE HOTEL
TELEPHONE SERVICE AND RATES, P.U.R. 1919 A, 190(MASS.  1918); HOTEL
SHERMAN CO. V. CHICAGO TELEPHONE CO., P.U.R. 1915 F, 776(ILL.  1915);
1015 CHESTNUT STREET CORP. V. BELL TELEPHONE CO., P.U.R. 1931 A, 19, 7
P.U.R. (N.S.)  184(1930, 1934); BUDD V. SOUTHWESTERN BELL TELEPHONE
CO., 28 P.U.R. (N.S.)  235(MO. 1939). 

REMETERING OF ELECTRIC ENERGY CREATES SIMILAR PROBLEMS OF REGULATION,
OFTEN DEALT WITH BY TARIFF PROHIBITION OF REMETERING.  SEE LEWIS V.
POTOMAC ELECTRIC POWER CO., 64 F.2D 701(APP.  D.C. 1933); KARRICK V.
POTOMAC ELECTRIC POWER CO., P.U.R. 1932 C, 40(D.C. SUP. CT. 1931);
FLORIDA POWER & LIGHT CO. V. FLORIDA EX REL. MALCOLM, 107 FLA. 317, 144
SO. 657(1932); SIXTY-SEVEN SOUTH MUNN V. BOARD OF PUBLIC UTILITY
COMMISSIONERS, 106 N.J. LAW 45, 147 A. 735(SUP.  CT. 1929), AFF'D 107
N.J. LAW 386, 152 A. 920(COURT OF ERRORS AND APPEALS 1930), CERT.
DENIED, 283 U.S. 828; PUBLIC SERVICE COMMISSION V. J. & J. ROGERS CO.,
184 APP. DIV. 705, 172 N.Y.S. 498(N.Y. 1918); PEOPLE EX REL. N.Y.
EDISON CO. V. PUBLIC SERVICE COMMISSION, 191 APP. DIV. 237, 181 N.Y.S.
259(N.Y. 1920), AFF'D, 230 N.Y. 574, 130 N.E. 899(1920). 

FN4  47 U.S.C. SEC. 201. 

FN5  47 U.S.C. SEC. 202. 

FN6  47 U.S.C. SEC. 203(A), (B), (C). 

FN7  47 U.S.C. SEC. 401. 

FN8  47 U.S.C. SEC. 411. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






SINCLAIR CO. V. INTERCHEMICAL CORP., 325 U.S. 327 


NO. 656.  ARGUED APRIL 5, 1945.  - DECIDED MAY 21, 1945.  - 144 F.2D
842, REVERSED. 


1.  IN SUITS IN THE FEDERAL COURTS FOR INFRINGEMENT OF PATENTS, THE
BETTER PRACTICE USUALLY IS FOR THE COURT TO INQUIRE FULLY INTO THE
VALIDITY OF THE PATENT.  P. 330. 

2.  IT IS ESSENTIAL TO THE VALIDITY OF A PATENT THAT THE SUBJECT
MATTER REVEAL "INVENTION," "MORE INGENUITY  ...  THAN THE WORK OF A
MECHANIC SKILLED IN THE ART."  P. 330. 

3.  PATENT NO. 2,087,190, CLAIMS 3, 10, 11, 12 AND 13, TO GESSLER,
FOR A PRINTER'S INK WHICH IS NON-VOLATILE AT ROOM TEMPERATURE AND
HIGHLY VOLATILE WHEN HEATED, WHICH INVOLVED MERELY THE SELECTION OF A
KNOWN COMPOUND TO MEET KNOWN REQUIREMENTS, HELD INVALID FOR WANT OF
INVENTION.  P. 334. 

SINCLAIR & CARROLL CO., INC. V. INTERCHEMICAL CORPORATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 705, TO REVIEW A DECREE WHICH, UPON APPEAL FROM
A DECREE HOLDING A PATENT INVALID AND NOT INFRINGED, 50 F.SUPP.  881,
HELD THE PATENT VALID AND INFRINGED. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS INFRINGEMENT SUIT WAS BROUGHT BY THE ASSIGNEES OF A PATENT ON A
PRINTING INK.  RESPONDENT, INTERCHEMICAL CORPORATION, ASSERTS THAT INKS
MADE BY THE PETITIONER INFRINGE ON CLAIMS 3, 10, 11, 12 AND 13 OF U.S.
PATENT NO. 2,087,190 WHICH WAS ISSUED TO ALBERT E. GESSLER ON JULY 13,
1937.  CLAIM 3, WHICH IS TYPICAL, IS AS FOLLOWS:  "A PRINTING INK WHICH
IS SUBSTANTIALLY NON-DRYING AT ORDINARY TEMPERATURES AND DRIES
INSTANTLY ON HEATING OF THE PRINTED MATTER, CONSISTING OF COLORING
MATTER DISPERSED IN AN ORGANIC VISCOUS VEHICLE CONSISTING OF A LIQUID
COMPONENT AND A SOLID COMPONENT COMPLETELY DISSOLVED IN THE LIQUID
COMPONENT IN SUFFICIENT QUANTITY TO GIVE THE INK THE CONSISTENCY OF AN
ORDINARY OIL-VARNISH PRINTING INK - THE SOLID COMPONENT BEING A MEMBER
OF THE GROUP CONSISTING OF NATURAL AND SYNTHETIC RESINS AND CELLULOSE
COMPOUNDS, SUBSTANTIALLY ALL OF THE LIQUID COMPONENT HAVING A VAPOR
PRESSURE AT 20 DEGREE C. AS LOW AS THAT OF DIETHYLENE GLYCOL MONOBUTYL
ETHER AT 20 DEGREE C., AND THE MAJOR PART OF THE LIQUID COMPONENT
HAVING A VAPOR PRESSURE WHICH AT 150 DEGREE C. APPROXIMATES THAT OF
ETHYL ALCOHOL AT ORDINARY TEMPERATURES AND FORMING A STABLE SOLUTION
WITH THE SOLID COMPONENT."  IN OTHER WORDS, GESSLER CLAIMS TO HAVE
INVENTED AN INK WHICH WILL NOT DRY AT ROOM TEMPERATURE BUT WHICH WILL
DRY INSTANTLY UPON THE APPLICATION OF HEAT AFTER PRINTING.  SUCH AN INK
IS OF NO PARTICULAR VALUE IN THE PRINTING OF NEWSPAPERS OR OTHER
PUBLICATIONS WHICH USE ABSORBENT PAPER.  THIS CAN BE DONE ACCEPTABLY
WITH ORDINARY INKS CONTAINING LINSEED OIL WHICH IS NON-VOLATILE AT ALL
RELEVANT TEMPERATURES.  THE PAPER ABSORBS THE INK WHEN ONE SIDE IS
PRINTED, AND THE OTHER SIDE CAN BE PRINTED IMMEDIATELY WITHOUT DANGER
OF SMUDGING. 

BUT THE INK DISCLOSED IN THE PATENT DOES HAVE UTILITY IN THE PRINTING
OF MAGAZINES AND OTHER MATERIALS WHICH USE SMOOTH NON-ABSORBENT PAPER. 
SINCE ITS DISCLOSURE BY GESSLER, IT OR SIMILAR INKS WHICH ARE CLAIMED
TO INFRINGE HAVE BEEN USED TO PRINT "THE NEW YORKER," "COLLIER'S," AND
"THE SATURDAY EVENING POST."  SUCH PUBLICATIONS PREVIOUSLY WOULD
REQUIRE CONSIDERABLY MORE TIME FOR PRINTING SINCE THE REVERSE SIDE OF
THE PAPER WHICH THEY USED COULD NOT BE PRINTED UNTIL THE FIRST SIDE WAS
DRY.  NOR COULD THE SHEETS BE STACKED OR FOLDED WITHOUT DANGER OF
"OFFSET" PRINTING.  THE SMOOTH PAPER WOULD NOT ABSORB THE LINSEED-OIL
INKS, AND DELAY OF FROM ONE TO TWENTY-FOUR HOURS WAS NECESSARY BEFORE
PRINTING WAS SUFFICIENTLY DRY TO ALLOW THE SHEETS TO BE WORKED UPON
AGAIN. 

MANY EFFORTS WERE MADE TO ELIMINATE THE NECESSITY FOR DELAY.  THE
PROBLEM WAS COMPLICATED BY THE FACT THAT THE PRESSES USED IN THIS KIND
OF PRINTING ARE EQUIPPED WITH A LONG SERIES OF INK-DISTRIBUTING ROLLERS
TO SPREAD OUT THE INK TO THE OPTIMUM THIN FILM BEFORE IT IS APPLIED TO
THE TYPE.  HENCE, WHEN INKS WITH VOLATILE COMPONENTS WERE USED, THEY
WOULD DRY ON THE ROLLERS BEFORE THEY GOT TO THE TYPE.  AND IF INKS WITH
NON-VOLATILE INGREDIENTS - LIKE LINSEED OIL - WERE USED, THEY WOULD NOT
DRY EXCEPT BY SLOW OXIDATION.  OTHER APPROACHES TO THE SOLUTION OF THE
PROBLEM INCLUDED THE EXPOSURE OF SHEETS PRINTED FROM LINSEED-OIL INKS
TO OZONE, BUT THAT PROCESS WAS DANGEROUS AND NOT WHOLLY SATISFACTORY. 
GESSLER'S INK COMBINES THE QUALITIES OF AN INK WHICH DOES NOT DRY ON
THE ROLLERS AND ONE WHICH DRIES QUICKLY AFTER PRINTING WHEN HEAT IS
APPLIED TO IT. 

THESE CHARACTERISTICS OF THE INK RESULT FROM THE NATURE OF THE
SOLVENT WHICH IS ONE OF ITS COMPONENTS.  GESSLER, IN HIS SPECIFICATION,
NAMED BUTYL CARBITOL (DIETHYLENE GLYCOL MONOBUTYL ETHER IS SAID TO BE
THE MORE ACCURATE SCIENTIFIC TERM) BUT THAT COMPOUND WAS GIVEN ONLY AS
AN EXAMPLE, AND MOST OF THE INKS WHICH HIS COMPANY NOW MAKES CONTAIN
"NARROW CUTS" OF PETROLEUM IN PLACE OF BUTYL CARBITOL.  A NARROW CUT OF
PETROLEUM CONSISTS OF ONLY A FEW KINDS OF HYDROCARBONS, AND
CONSEQUENTLY EVAPORATES CONSISTENTLY SINCE EACH OF THE HYDROCARBONS HAS
SUBSTANTIALLY THE SAME VAPOR PRESSURE CURVE.  THE ALLEGEDLY INFRINGING
INKS SIMILARLY ARE MADE WITH NARROW CUTS OF PETROLEUM.  ALL OF THESE
SOLVENTS HAVE THE PECULIAR QUALITY OF BEING RELATIVELY NON-VOLATILE AT
ORDINARY ROOM TEMPERATURE BUT HIGHLY VOLATILE AT A TEMPERATURE OF 150
DEGREE C., A TEMPERATURE TO WHICH PAPER CAN SAFELY BE HEATED WITHOUT
BURNING.  THERE IS NO QUESTION THAT INKS CONTAINING THESE SOLVENTS HAVE
ENABLED MAGAZINES TO BE PRINTED ON HIGH-SPEED ROTARY PRESSES WHICH ARE
FURNISHED WITH HEATING DEVICES, WITHOUT INTERRUPTION FOR DRYING. 

THE DISTRICT COURT HELD GESSLER'S PATENT INVALID BECAUSE ANTICIPATED
BY THE PRIOR ART, AND HELD THAT THE PETITIONER'S INKS DID NOT
INFRINGE.  INTERCHEMICAL CORP. V. SINCLAIR & CARROLL CO., 50 F.SUPP. 
881.  THE CIRCUIT COURT REVERSED, HOLDING THE PATENT VALID AND
INFRINGED.  INTERCHEMICAL CORP. V. SINCLAIR & CARROLL CO., 144 F.2D
842.  WE GRANTED CERTIORARI.  323 U.S. 705. 

THERE HAS BEEN A TENDENCY AMONG THE LOWER FEDERAL COURTS IN
INFRINGEMENT SUITS TO DISPOSE OF THEM WHERE POSSIBLE ON THE GROUND OF
NON-INFRINGEMENT WITHOUT GOING INTO THE QUESTION OF VALIDITY OF THE
PATENT.  IRVIN V. BUICK MOTOR CO., 88 F.2D 947, 951; AERO SPARK PLUG
CO. V. B.G. CORP., 130 F.2D 290; FRANKLIN V. MASONITE CORP., 132 F.2D
800.  IT HAS COME TO BE RECOGNIZED, HOWEVER, THAT OF THE TWO QUESTIONS,
VALIDITY HAS THE GREATER PUBLIC IMPORTANCE, COVER V. SCHWARTZ, 133 F.2D
541, AND THE DISTRICT COURT IN THIS CASE FOLLOWED WHAT WILL USUALLY BE
THE BETTER PRACTICE BY INQUIRING FULLY INTO THE VALIDITY OF THIS
PATENT. 

A LONG LINE OF CASES HAS HELD IT TO BE AN ESSENTIAL REQUIREMENT FOR
THE VALIDITY OF A PATENT THAT THE SUBJECT-MATTER DISPLAY "INVENTION,"
"MORE INGENUITY  ...  THAN THE WORK OF A MECHANIC SKILLED IN THE ART."
HICKS V. KELSEY, 18 WALL.  670; SLAWSON V. GRAND STREET R. CO., 107
U.S. 649; PHILLIPS V. DETROIT, 111 U.S. 604; MORRIS V. MCMILLIN, 112
U.S. 244; SARANAC AUTOMATIC MACHINE CORP. V. WIREBOUNDS PATENTS CO.,
282 U.S. 704; HONOLULU OIL CORP. V. HALLIBURTON, 306 U.S. 550; CUNO
ENGINEERING CORP. V. AUTOMATIC DEVICES CORP., 314 U.S. 84, 90.  THIS
TEST IS OFTEN DIFFICULT TO APPLY; BUT ITS PURPOSE IS CLEAR.  UNDER THIS
TEST, SOME SUBSTANTIAL INNOVATION IS NECESSARY, AN INNOVATION FOR WHICH
SOCIETY IS TRULY INDEBTED TO THE EFFORTS OF THE PATENTEE.  WHETHER OR
NOT THOSE EFFORTS ARE OF A SPECIAL KIND DOES NOT CONCERN US.  THE
PRIMARY PURPOSE OF OUR PATENT SYSTEM IS NOT REWARD OF THE INDIVIDUAL
BUT THE ADVANCEMENT OF THE ARTS AND SCIENCES.  FN1  ITS INDUCEMENT IS
DIRECTED TO DISCLOSURE OF ADVANCES IN KNOWLEDGE WHICH WILL BE
BENEFICIAL TO SOCIETY; IT IS NOT A CERTIFICATE OF MERIT, BUT AN
INCENTIVE TO DISCLOSURE.  SEE HARTFORD-EMPIRE CO. V. UNITED STATES, 323
U.S. 386, 432-433.  CONSEQUENTLY IT IS NOT CONCERNED WITH THE QUALITY
OF THE INVENTOR'S MIND, BUT WITH THE QUALITY OF HIS PRODUCT. 

THE PATENT IN SUIT WAS NOT THE PRODUCT OF LONG AND DIFFICULT
EXPERIMENTATION.  ALTHOUGH LIKE OTHER PATENT CASES, THIS HAS AN
EXTENSIVE RECORD, IT IS HARD TO SEE WHEREIN GESSLER'S INVENTION
CONSISTS.  IN 1930, HE WAS ASKED TO MAKE AN ODORLESS INK, AND HE
SELECTED FROM A CATALOG OF A CHEMICAL MANUFACTURER THREE SOLVENTS WHICH
THE CATALOG INDICATED TO BE RELATIVELY ODORLESS.  THEIR VAPOR
PRESSURES, THAT IS, THEIR RATES OF EVAPORATION AT VARIOUS TEMPERATURES,
WERE ALSO LISTED.  HE TRIED INKS MADE WITH EACH OF THE COMPOUNDS AS A
SOLVENT AND DECIDED THAT BUTYL CARBITOL WAS THE MOST SATISFACTORY,
SINCE IT DID NOT DRY WHILE ON THE ROLLERS, AT ORDINARY TEMPERATURE. 

THE COMPANY WHICH HAD REQUESTED THE ODORLESS INK, HOWEVER, FOUND THAT
IT WAS UNSATISFACTORY FOR OTHER REASONS AND, AFTER SOME FURTHER EFFORT,
GESSLER STOPPED TRYING TO SOLVE THAT PROBLEM.  SOMETIME IN 1932,
HOWEVER, THE SAME COMPANY ASKED GESSLER WHETHER HE COULD SUPPLY THEM
WITH AN INK "THAT WOULD BE DRY AFTER BEING PRINTED?  WE CAN PUT IT OVER
SOME KIND OF HEATING DEVICE."  GESSLER'S ANSWER WAS, "YES, I THINK WE
COULD.  IN FACT, ONE OF THOSE INKS I MADE FOR YOU IN THE BEGINNING
WOULD DO THAT."  GESSLER TESTIFIED AS FOLLOWS:  "AND NOW, WHEN MR. CRAY
CAME, IN THE YEAR 1932, AND TOLD ME THAT HEATING UNITS, STEAM-HEATED
ROLLERS ARE USED ON PRINTING PRESSES, THAT WAS THE LAST KEY THAT I
NEEDED FOR THE SOLUTION OF THE PROBLEM.  I HAD NOT KNOWN THAT BEFORE,
AND I KNEW THAT IF I COULD APPLY ANY HEAT TO THE THIN FILM OF THOSE
INKS THAT THEY WOULD DRY ALMOST INSTANTANEOUSLY.  WITH THAT IN MIND
THAT WAS THE MENTAL BACKGROUND, I WOULD SAY, THAT I SENT THIS
PARTICULAR INK TO MR. CRAY.  I DID NOT SEND HIM A NUMBER OF INKS OR A
SELECTION OF INKS, BUT I SENT HIM JUST ONE SPECIFIC INK."  AND WITH
RESPECT TO THE SOLVENTS HE HAD CHOSEN, GESSLER TESTIFIED FURTHER: 

Q. WHAT I WANT TO GET STRAIGHT IN MY MIND, DR. GESSLER, IS THIS:  YOU
SELECTED THESE THREE, IS THAT RIGHT? 

A. THAT IS RIGHT. 

Q. DID YOU SELECT THEM FROM A MUCH LONGER LIST? 

A. THAT IS RIGHT. 

Q. AND BEFORE YOU SELECTED THEM YOU TRIED THEM ALL OUT, DID YOU?  A.
NO. YOU SEE THE LIST IS LISTED ACCORDING TO THE BOILING POINT, AND IF
YOU FOLLOWED ON I TOOK IT FROM A CERTAIN BOILING POINT ON UPWARDS. 

Q. OH, I SEE.  YOU TOOK THEM OUT OF A LONG LIST IN ACCORDANCE WITH
THEIR BOILING POINT?  A. THAT IS CORRECT.  THAT WAS MY FIRST INDICATION
OF EVAPORATION RATE. 

     .         .         .         .         . 

Q....  IN SELECTING THESE THREE SOLVENTS THAT YOU REFERRED TO, BUTYL
CELLOSOLVE, CARBITOL AND BUTYL CARBITOL, DID YOU HAVE REFERENCE TO A
CARBIDE & CARBON CHEMICALS CORPORATION CATALOG?  A. I KNEW THEM.  I
DON'T KNOW IF I HAD REFERENCE, BUT I KNEW NATURALLY THOSE SOLVENTS. 

Q. YOU MAY HAVE REFERRED TO A CATALOG?  A. I MAY HAVE, CERTAINLY.  I
MOST PROBABLY HAD THE CATALOG. 

Q. YOU GOT COPIES OF THEIR CATALOGS, DID YOU?  A. OH, YES. 

     .         .         .         .   . 

Q. ON THE FLY-LEAF OF THE CARBIDE & CARBON CATALOG THERE IS A LIST OF
THEIR PRODUCTS.  DO YOU REMEMBER THAT LIST (HANDING TO WITNESS)?  A. A
SIMILAR LIST. 

Q. THAT GIVES BOILING POINTS AND VAPOR PRESSURES? 

A. IT DOES. 

Q. AND YOU MAY HAVE SELECTED THESE THREE SOLVENTS THAT WE ARE TALKING
ABOUT FROM THAT LIST?  A.  THAT IS POSSIBLE, ALTHOUGH I KNEW THE
SOLVENTS.  I WAS VERY CONVERSANT WITH THEM.  I TOLD YOU A WHILE AGO
WHY. 

BUTYL CARBITOL WAS FIRST PUT ON THE MARKET IN 1929, AND SUBSEQUENTLY
WAS LISTED IN THE CATALOGS OF CARBIDE & CARBON CHEMICALS CORPORATION. 
IT CANNOT BE SAID THAT GESSLER'S CONTRIBUTION WAS A RECOGNITION THAT A
SOLVENT HAVING THE PECULIAR QUALITIES OF NEGLIGIBLE VAPOR PRESSURE AT
ROOM TEMPERATURE AND HIGH VAPOR PRESSURE AT 150 DEGREE C. WAS WHAT WAS
NEEDED.  BOTH THE CIRCUIT COURT AND THE DISTRICT COURT FOUND THAT AN
ARTICLE WRITTEN IN 1931, REFERRED TO AS THE HANSON ARTICLE, HAD POSED
THE PROBLEM.  FN2  IT IS DIFFICULT TO BELIEVE THAT IF HANSON HAD KNOWN
OF THE QUALITIES OF BUTYL CARBITOL, IF HE HAD HAD THE CARBIDE & CARBON
CATALOG BEFORE HIM, HE OR ANY OTHER PERSON SKILLED IN THE ART COULD NOT
HAVE DEVISED THE INK WHICH GESSLER CLAIMS TO HAVE INVENTED.  WE REACH
THIS CONCLUSION EVEN THOUGH HANSON TESTIFIED IN AN AFFIDAVIT INTRODUCED
IN SUPPORT OF A MOTION FOR REHEARING THAT HE HAD WORKED FOR OVER A YEAR
TRYING TO PRODUCE SUCH AN INK AND DID NOT SUCCEED. 

THE DISTRICT COURT BASED ITS JUDGMENT ON ANTICIPATION BY PRIOR
PATENTS.  MOST OF THESE PERTAINED TO INKS WHICH WERE NOT USED IN
ORDINARY PRINTING:  LEFFERTS AND STEVENS, NO. 380,654, ISSUED APRIL 3,
1888, WAS AN INK USED FOR PRINTING ON CELLULOID AND OTHER PYROXYLINE
COMPOUNDS; THE DOUGHTY AND MCELROY PATENTS, NOS. 1,439,696 AND
1,450,692, ISSUED DECEMBER 26, 1922 AND APRIL 3, 1923 TAUGHT AN INK
WHICH WAS MAINLY USEFUL FOR STAMPING WITH METALLIC INKS BY MEANS OF
HEATED DIES.  BUT THE JIROUSEK PATENT, NO. 1,954,627, ISSUED APRIL 10,
1934, WAS FOR AN ORDINARY PRINTING INK.  JIROUSEK'S PATENT WAS DIRECTED
TO "A COMPOSITION  ...  WHICH CAN SET QUICKLY AND DRY RAPIDLY AND ALSO
HANDLE AND FEED PROPERLY AND DISTRIBUTE FREELY."  AND THE PATENT
SPECIFIES, "IN THE USE OF SUCH COMPOSITIONS, IMMEDIATELY AFTER THE
IMPRESSION IS MADE, HEAT SHOULD BE APPLIED, AND MOST ADVANTAGEOUSLY
THIS MAY BE ACCOMPLISHED BY A SUITABLE HEATER, ELECTRIC, GAS, ETC.,
ARRANGED ON OR ADJACENT THE PRESS, SO THAT THE DELIVERED PRINTED
IMPRESSION IS SUBJECTED TO A SUBSTANTIAL DEGREE OF HEAT TO COMPLETE THE
SETTING ACTION." 

THE INKS DISCLOSED IN THESE PRIOR PATENTS DID NOT CONTAIN THE SAME
SOLVENT OR SOLVENTS SIMILAR TO THOSE WHICH GESSLER RECOMMENDED AND
WHICH HIS COMPANY AND THE PETITIONERS NOW USE.  THEY HAD DIFFERENT
VAPOR PRESSURES BOTH AT ROOM TEMPERATURE AND AT 150 DEGREE C. BUT ALL
THESE PATENTS TAUGHT AN INK MADE WITH A SOLVENT THAT WOULD BE NON
VOLATILE AT ROOM TEMPERATURE AND HIGHLY VOLATILE WHEN HEATED. 
GESSLER'S SOLVENT IS UNDOUBTEDLY MORE SATISFACTORY THAN ANY OF THE
SOLVENTS MENTIONED IN THESE PATENTS, BUT IT MUST BE REMEMBERED THAT ALL
BUT ONE OF THESE PATENTS WERE GRANTED BEFORE BUTYL CARBITOL APPEARED ON
THE MARKET.  THE FACT IS THAT GESSLER HIMSELF TO A LARGE EXTENT HAS
ABANDONED BUTYL CARBITOL AND NOW USES A NARROW CUT OF PETROLEUM.  EVEN
ASSUMING THAT IF GESSLER HAD DISCOVERED THE COMPOUND HE WOULD BE
ENTITLED TO A PATENT, HE DID NOT DISCOVER IT. READING A LIST AND
SELECTING A KNOWN COMPOUND TO MEET KNOWN REQUIREMENTS IS NO MORE
INGENIOUS THAN SELECTING THE LAST PIECE TO PUT INTO THE LAST OPENING IN
A JIG-SAW PUZZLE.  IT IS NOT INVENTION.  THE JUDGMENT BELOW IS
REVERSED.    FN1  SEE THE TESTIMONY OF COMMISSIONER COE BEFORE THE
TNEC: "IT IS NOT THE PRINCIPAL PURPOSE OF THE PATENT LAWS OF OUR OWN
COUNTRY OR OF ANY NATION TO REWARD AN INDIVIDUAL.  THE PURPOSE IS MUCH
DEEPER AND THE EFFECT MUCH WIDER THAN INDIVIDUAL GAIN.  IT IS THE
PROMOTION OF SCIENCE AND THE ADVANCEMENT OF THE ARTS LOOKING TO THE
GENERAL WELFARE OF THE NATION THAT THE PATENT LAWS HOPE TO ACCOMPLISH. 
THE INDIVIDUAL REWARD IS ONLY THE LURE TO BRING ABOUT THIS MUCH BROADER
OBJECTIVE.  EVERY PATENT GRANTED BENEFITS SOCIETY BY ADDING TO THE SUM
TOTAL OF HUMAN KNOWLEDGE, BUT THAT IS NOT ENOUGH, AND THAT ALONE WILL
NOT ACHIEVE THE ULTIMATE GOAL OF THE PATENT SYSTEM."  TNEC HEARINGS,
PART 3, P. 857. 

FN2  THE RELEVANT PART OF THE HANSON ARTICLE, WHICH APPEARS IN THE
RECORD, IS AS FOLLOWS:  "THE SOLVENTS AVAILABLE HAVE DIFFERENT BOILING
POINTS RANGING THROUGH A BROAD SCALE, BUT UNFORTUNATELY FOR THIS
PROBLEM THEIR VAPOR PRESSURE CURVES ARE NEARLY PARALLEL.  IF WE CHOOSE
ONE FROM THE GROUP WITH A BOILING POINT WELL UNDER 250 DEGREES F. (121
DEGREES C.), THE HIGHEST PRACTICAL HEAT TO APPLY TO A PRINTED SHEET, WE
FIND THAT AT ROOM TEMPERATURE ITS VAPOR PRESSURE IS STILL SO GREAT THAT
DRYING WILL PROGRESS RAPIDLY.  ON THE OTHER HAND, IF ONE IS SELECTED
WITH A VAPOR PRESSURE SO LOW AT ROOM TEMPERATURE THAT LITTLE DRYING
TAKES PLACE, AT 200 DEGREES TO 250 DEGREES F., WE FIND THE BOILING
POINT HARDLY ATTAINED OR NOT EVEN REACHED. 

"IF WE COULD ONLY FLATTEN THE CURVE OF A HIGH BOILING SOLVENT WITH A
VAPOR PRESSURE OF 1 IN. OF MERCURY OR LESS AT 80 DEGREES DOWN TO A
POINT WHERE AT 30 IN. THE BOILING TEMPERATURE WOULD BE REDUCED TO ONLY
150 DEGREES OR SO IT WOULD NOT TAKE US LONG TO COMPOUND AN INK TO MEET
THE GENERAL CHARACTERISTICS FOR A PLASTIC INK SET FORTH ABOVE." 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT. 
..END :
























SCREWS V. UNITED STATES, 325 U.S. 91 


NO. 42.  ARGUED OCTOBER 20, 1944.  - DECIDED MAY 7, 1945.  - 140 F.2D
662, REVERSED. 


1.  UPON REVIEW OF A JUDGMENT AFFIRMING THE CONVICTION, FOR VIOLATION
OF SEC. 20 OF THE CRIMINAL CODE AND CONSPIRACY THEREUNTO, OF LOCAL LAW
ENFORCEMENT OFFICERS WHO ARRESTED A NEGRO CITIZEN FOR A STATE OFFENSE
AND WRONGFULLY BEAT HIM TO DEATH, THE JUDGMENT IS REVERSED WITH
DIRECTIONS FOR A NEW TRIAL.  PP. 92-94, 113. 

OPINION OF DOUGLAS, J., IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE REED CONCUR: 

2.  SECTION 20 OF THE CRIMINAL CODE, SO FAR AS IT PENALIZES ACTS
WHICH "WILLFULLY" DEPRIVE A PERSON OF ANY RIGHT SECURED TO HIM BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, IS TO BE CONSTRUED AS
REQUIRING A SPECIFIC INTENT TO DEPRIVE OF A RIGHT WHICH HAS BEEN MADE
SPECIFIC BY THE EXPRESS TERMS OF THE CONSTITUTION OR LAWS OF THE UNITED
STATES OR BY DECISIONS INTERPRETING THEM; AND, AS SO CONSTRUED, THE
GUILT.  P. 101. 

3.  THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY THAT, IN ORDER
TO CONVICT, THEY MUST FIND THAT THE DEFENDANTS HAD THE PURPOSE TO
DEPRIVE THE PRISONER OF A CONSTITUTIONAL RIGHT.  IN DETERMINING WHETHER
THAT REQUISITE BAD PURPOSE WAS PRESENT THE JURY WOULD BE ENTITLED TO
CONSIDER ALL THE ATTENDANT CIRCUMSTANCES - THE MALICE OF THE
DEFENDANTS, THE WEAPONS USED IN THE ASSAULT, THE CHARACTER AND DURATION
OF THE ASSAULT, THE PROVOCATION, IF ANY, AND THE LIKE.  P. 106. 

4.  ALTHOUGH NO EXCEPTION WAS TAKEN TO THE TRIAL COURT'S CHARGE, THE
ERROR WAS SO FUNDAMENTAL - FAILURE TO SUBMIT TO THE JURY THE ESSENTIAL
ELEMENTS OF THE ONLY OFFENSE ON WHICH THE CONVICTION COULD REST - THAT
THIS COURT TAKES NOTE OF IT SUA SPONTE.  P. 107. 

5.  IN MAKING THE ARREST AND IN ASSAULTING THE PRISONER, THE
DEFENDANTS ACTED "UNDER COLOR OF LAW," WITHIN THE MEANING OF SEC. 20 OF
THE CRIMINAL CODE.  P. 107. 

DEFENDANTS WERE OFFICERS OF THE LAW WHO HAD MADE AN ARREST, AND IT
WAS THEIR DUTY UNDER THE LAW OF THE STATE TO MAKE THE ARREST
EFFECTIVE.  BY THEIR OWN ADMISSIONS, THEY MADE THE ASSAULT IN ORDER TO
PROTECT THEMSELVES AND TO KEEP THE PRISONER FROM ESCAPING. 

SCREWS ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 322 U.S. 718, TO REVIEW A JUDGMENT AFFIRMING CONVICTIONS
FOR VIOLATION OF SEC. 20 OF THE CRIMINAL CODE AND CONSPIRACY. 

MR. JUSTICE DOUGLAS ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED
THE FOLLOWING OPINION, IN WHICH THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE REED CONCUR. 

THIS CASE INVOLVES A SHOCKING AND REVOLTING EPISODE IN LAW
ENFORCEMENT.  PETITIONER SCREWS WAS SHERIFF OF BAKER COUNTY, GEORGIA. 
HE ENLISTED THE ASSISTANCE OF PETITIONER JONES, A POLICEMAN, AND
PETITIONER KELLEY, A SPECIAL DEPUTY, IN ARRESTING ROBERT HALL, A
CITIZEN OF THE UNITED STATES AND OF GEORGIA.  THE ARREST WAS MADE LATE
AT NIGHT AT HALL'S HOME ON A WARRANT CHARGING HALL WITH THEFT OF A
TIRE.  HALL, A YOUNG NEGRO ABOUT THIRTY YEARS OF AGE, WAS HANDCUFFED
AND TAKEN BY CAR TO THE COURT HOUSE.  AS HALL ALIGHTED FROM THE CAR AT
THE COURT-HOUSE SQUARE, THE THREE PETITIONERS BEGAN BEATING HIM WITH
THEIR FISTS AND WITH A SOLID-BAR BLACKJACK ABOUT EIGHT INCHES LONG AND
WEIGHING TWO POUNDS.  THEY CLAIMED HALL HAD REACHED FOR A GUN AND HAD
USED INSULTING LANGUAGE AS HE ALIGHTED FROM THE CAR.  BUT AFTER HALL,
STILL HANDCUFFED, HAD BEEN KNOCKED TO THE GROUND THEY CONTINUED TO BEAT
HIM FROM FIFTEEN TO THIRTY MINUTES UNTIL HE WAS UNCONSCIOUS.  HALL WAS
THEN DRAGGED FEET FIRST THROUGH THE COURT-HOUSE YARD INTO THE JAIL AND
THROWN UPON THE FLOOR DYING.  AN AMBULANCE WAS CALLED AND HALL WAS
REMOVED TO A HOSPITAL WHERE HE DIED WITHIN THE HOUR AND WITHOUT
REGAINING CONSCIOUSNESS.  THERE WAS EVIDENCE THAT SCREWS HELD A GRUDGE
AGAINST HALL AND HAD THREATENED TO "GET" HIM. 

AN INDICTMENT WAS RETURNED AGAINST PETITIONERS - ONE COUNT CHARGING A
VIOLATION OF SEC. 20 OF THE CRIMINAL CODE, 18 U.S.C. SEC. 52 AND
ANOTHER CHARGING A CONSPIRACY TO VIOLATE SEC. 20 CONTRARY TO SEC. 37 OF
THE CRIMINAL CODE, 18 U.S.C. SEC. 88.  SEC. 20 PROVIDES: 

"WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM, WILLFULLY SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY INHABITANT
OF ANY STATE, TERRITORY, OR DISTRICT TO THE DEPRIVATION OF ANY RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY THE CONSTITUTION AND
LAWS OF THE UNITED STATES, OR TO DIFFERENT PUNISHMENTS, PAINS, OR
PENALTIES, ON ACCOUNT OF SUCH INHABITANT BEING AN ALIEN, OR BY REASON
OF HIS COLOR, OR RACE, THAN ARE PRESCRIBED FOR THE PUNISHMENT OF
CITIZENS, SHALL BE FINED NOT MORE THAN $1,000, OR IMPRISONED NOT MORE
THAN ONE YEAR, OR BOTH."  THE INDICTMENT CHARGED THAT PETITIONERS,
ACTING UNDER COLOR OF THE LAWS OF GEORGIA, "WILLFULLY" CAUSED HALL TO
BE DEPRIVED OF "RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED"
TO HIM BY THE FOURTEENTH AMENDMENT - THE RIGHT NOT TO BE DEPRIVED OF
LIFE WITHOUT DUE PROCESS OF LAW; THE RIGHT TO BE TRIED, UPON THE CHARGE
ON WHICH HE WAS ARRESTED, BY DUE PROCESS OF LAW AND IF FOUND GUILTY TO
BE PUNISHED IN ACCORDANCE WITH THE LAWS OF GEORGIA; THAT IS TO SAY THAT
PETITIONERS "UNLAWFULLY AND WRONGFULLY DID ASSAULT, STRIKE AND BEAT THE
SAID ROBERT HALL ABOUT THE HEAD WITH HUMAN FISTS AND A BLACKJACK
CAUSING INJURIES" TO HALL "WHICH WERE THE PROXIMATE AND IMMEDIATE CAUSE
OF HIS DEATH."  A LIKE CHARGE WAS MADE IN THE CONSPIRACY COUNT. 

THE CASE WAS TRIED TO A JURY.  FN1  THE COURT CHARGED THE JURY THAT
DUE PROCESS OF LAW GAVE ONE CHARGED WITH A CRIME THE RIGHT TO BE TRIED
BY A JURY AND SENTENCED BY A COURT.  ON THE QUESTION OF INTENT IT
CHARGED THAT 

"...  IF THESE DEFENDANTS, WITHOUT ITS BEING NECESSARY TO MAKE THE
ARREST EFFECTUAL OR NECESSARY TO THEIR OWN PERSONAL PROTECTION, BEAT
THIS MAN, ASSAULTED HIM OR KILLED HIM WHILE HE WAS UNDER ARREST, THEN
THEY WOULD BE ACTING ILLEGALLY UNDER COLOR OF LAW, AS STATED BY THIS
STATUTE, AND WOULD BE DEPRIVING THE PRISONER OF CERTAIN CONSTITUTIONAL
RIGHTS GUARANTEED TO HIM BY THE CONSTITUTION OF THE UNITED STATES AND
CONSENTED TO BY THE STATE OF GEORGIA." 

THE JURY RETURNED A VERDICT OF GUILTY AND A FINE AND IMPRISONMENT ON
EACH COUNT WAS IMPOSED.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE
JUDGMENT OF CONVICTION, ONE JUDGE DISSENTING.  140 F.2D 662.  THE CASE
IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE
OF THE IMPORTANCE IN THE ADMINISTRATION OF THE CRIMINAL LAWS OF THE
QUESTIONS PRESENTED. 

                             I 

WE ARE MET AT THE OUTSET WITH THE CLAIM THAT SEC. 20 IS
UNCONSTITUTIONAL, INSOFAR AS IT MAKES CRIMINAL ACTS IN VIOLATION OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THE ARGUMENT RUNS AS
FOLLOWS:  IT IS TRUE THAT THIS ACT AS CONSTRUED IN UNITED STATES V.
CLASSIC, 313 U.S. 299, 328, WAS UPHELD IN ITS APPLICATION TO CERTAIN
BALLOT BOX FRAUDS COMMITTED BY STATE OFFICIALS.  BUT IN THAT CASE THE
CONSTITUTIONAL RIGHTS PROTECTED WERE THE RIGHTS TO VOTE SPECIFICALLY
GUARANTEED BY ART. I, SEC. 2 AND SEC. 4 OF THE CONSTITUTION.  HERE
THERE IS NO ASCERTAINABLE STANDARD OF GUILT.  THERE HAVE BEEN
CONFLICTING VIEWS IN THE COURT AS TO THE PROPER CONSTRUCTION OF THE DUE
PROCESS CLAUSE.  THE MAJORITY HAVE QUITE CONSISTENTLY CONSTRUED IT IN
BROAD GENERAL TERMS.  THUS IT WAS STATED IN TWINING V. NEW JERSEY, 211
U.S. 78, 101, THAT DUE PROCESS REQUIRES THAT "NO CHANGE IN ANCIENT
PROCEDURE CAN BE MADE WHICH DISREGARDS THOSE FUNDAMENTAL PRINCIPLES, TO
BE ASCERTAINED FROM TIME TO TIME BY JUDICIAL ACTION, WHICH HAVE
RELATION TO PROCESS OF LAW AND PROTECT THE CITIZEN IN HIS PRIVATE
RIGHT, AND GUARD HIM AGAINST THE ARBITRARY ACTION OF GOVERNMENT."  IN
SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105, IT WAS SAID THAT DUE PROCESS
PREVENTS STATE ACTION WHICH "OFFENDS SOME PRINCIPLE OF JUSTICE SO
ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO BE RANKED
AS FUNDAMENTAL."  THE SAME STANDARD WAS EXPRESSED IN PALKO V.
CONNECTICUT, 302 U.S. 319, 325, IN TERMS OF A "SCHEME OF ORDERED
LIBERTY."  AND THE SAME IDEA WAS RECENTLY PHRASED AS FOLLOWS:  "THE
PHRASE FORMULATES A CONCEPT LESS RIGID AND MORE FLUID THAN THOSE
ENVISAGED IN OTHER SPECIFIC AND PARTICULAR PROVISIONS OF THE BILL OF
RIGHTS.  ITS APPLICATION IS LESS A MATTER OF RULE.  ASSERTED DENIAL IS
TO BE TESTED BY AN APPRAISAL OF THE TOTALITY OF FACTS IN A GIVEN CASE. 
THAT WHICH MAY, IN ONE SETTING, CONSTITUTE A DENIAL OF FUNDAMENTAL
FAIRNESS, SHOCKING TO THE UNIVERSAL SENSE OF JUSTICE, MAY, IN OTHER
CIRCUMSTANCES, AND IN THE LIGHT OF OTHER CONSIDERATIONS, FALL SHORT OF
SUCH DENIAL."  BETTS V. BRADY, 316 U.S. 455, 462. 

IT IS SAID THAT THE ACT MUST BE READ AS IF IT CONTAINED THOSE BROAD
AND FLUID DEFINITIONS OF DUE PROCESS AND THAT IF IT IS SO READ IT
PROVIDES NO ASCERTAINABLE STANDARD OF GUILT.  IT IS POINTED OUT THAT IN
UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81, 89, AN ACT OF CONGRESS
WAS STRUCK DOWN, THE ENFORCEMENT OF WHICH WOULD HAVE BEEN "THE EXACT
EQUIVALENT OF AN EFFORT TO CARRY OUT A STATUTE WHICH IN TERMS MERELY
PENALIZED AND PUNISHED ALL ACTS DETRIMENTAL TO THE PUBLIC INTEREST WHEN
UNJUST AND UNREASONABLE IN THE ESTIMATION OF THE COURT AND JURY."  IN
THAT CASE THE ACT DECLARED CRIMINAL WAS THE MAKING OF "ANY UNJUST OR
UNREASONABLE RATE OR CHARGE IN HANDLING OR DEALING IN OR WITH ANY
NECESSARIES."  255 U.S. P. 86.  THE ACT CONTAINED NO DEFINITION OF AN
"UNJUST OR UNREASONABLE RATE" NOR DID IT REFER TO ANY SOURCE WHERE THE
MEASURE OF "UNJUST OR UNREASONABLE" COULD BE ASCERTAINED.  IN THE
INSTANT CASE THE DECISIONS OF THE COURTS ARE, TO BE SURE, A SOURCE OF
REFERENCE FOR ASCERTAINING THE SPECIFIC CONTENT OF THE CONCEPT OF DUE
PROCESS.  BUT EVEN SO THE ACT WOULD INCORPORATE BY REFERENCE A LARGE
BODY OF CHANGING AND UNCERTAIN LAW.  THAT LAW IS NOT ALWAYS REDUCIBLE
TO SPECIFIC RULES, IS EXPRESSIBLE ONLY IN GENERAL TERMS, AND TURNS MANY
TIMES ON THE FACTS OF A PARTICULAR CASE.  ACCORDINGLY, IT IS ARGUED
THAT SUCH A BODY OF LEGAL PRINCIPLES LACKS THE BASIC SPECIFICITY
NECESSARY FOR CRIMINAL STATUTES UNDER OUR SYSTEM OF GOVERNMENT. 
CONGRESS DID NOT DEFINE WHAT IT DESIRED TO PUNISH BUT REFERRED THE
CITIZEN TO A COMPREHENSIVE LAW LIBRARY IN ORDER TO ASCERTAIN WHAT ACTS
WERE PROHIBITED.  TO ENFORCE SUCH A STATUTE WOULD BE LIKE SANCTIONING
THE PRACTICE OF CALIGULA WHO "PUBLISHED THE LAW, BUT IT WAS WRITTEN IN
A VERY SMALL HAND, AND POSTED UP IN A CORNER, SO THAT NO ONE COULD MAKE
A COPY OF IT."  SUETONIUS, LIVES OF THE TWELVE CAESARS, P. 278. 

THE SERIOUS CHARACTER OF THAT CHALLENGE TO THE CONSTITUTIONALITY OF
THE ACT IS EMPHASIZED IF THE CUSTOMARY STANDARD OF GUILT FOR STATUTORY
CRIMES IS TAKEN.  AS WE SHALL SEE, SPECIFIC INTENT IS AT TIMES
REQUIRED.  HOLMES, THE COMMON LAW, PP. 66 ET SEQ. BUT THE GENERAL RULE
WAS STATED IN ELLIS V. UNITED STATES, 206 U.S. 246, 257, AS FOLLOWS:
"IF A MAN INTENTIONALLY ADOPTS CERTAIN CONDUCT IN CERTAIN CIRCUMSTANCES
KNOWN TO HIM, AND THAT CONDUCT IS FORBIDDEN BY THE LAW UNDER THOSE
CIRCUMSTANCES, HE INTENTIONALLY BREAKS THE LAW IN THE ONLY SENSE IN
WHICH THE LAW EVER CONSIDERS INTENT."  AND SEE HORNING V. DISTRICT OF
COLUMBIA, 254 U.S. 135, 137; NASH V. UNITED STATES, 229 U.S. 373, 377. 
UNDER THAT TEST A LOCAL LAW ENFORCEMENT OFFICER VIOLATES SEC. 20 AND
COMMITS A FEDERAL OFFENSE FOR WHICH HE CAN BE SENT TO THE PENITENTIARY
IF HE DOES AN ACT WHICH SOME COURT LATER HOLDS DEPRIVES A PERSON OF DUE
PROCESS OF LAW.  AND HE IS A CRIMINAL THOUGH HIS MOTIVE WAS PURE AND
THOUGH HIS PURPOSE WAS UNRELATED TO THE DISREGARD OF ANY CONSTITUTIONAL
GUARANTEE.  THE TREACHEROUS GROUND ON WHICH STATE OFFICIALS - POLICE,
PROSECUTORS, LEGISLATORS, AND JUDGES - WOULD WALK IS INDICATED BY THE
CHARACTER AND CLOSENESS OF DECISIONS OF THIS COURT INTERPRETING THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  A CONFESSION OBTAINED BY
TOO LONG QUESTIONING (ASHCRAFT V. TENNESSEE, 322 U.S. 143); THE
ENFORCEMENT OF AN ORDINANCE REQUIRING A LICENSE FOR THE DISTRIBUTION OF
RELIGIOUS LITERATURE (MURDOCK V. PENNSYLVANIA, 319 U.S. 105); THE
DENIAL OF THE ASSISTANCE OF COUNSEL IN CERTAIN TYPES OF CASES (CF.
POWELL V. ALABAMA, 287 U.S. 45 WITH BETTS V. BRADY, SUPRA); THE
ENFORCEMENT OF CERTAIN TYPES OF ANTI-PICKETING STATUTES (THORNHILL V.
ALABAMA, 310 U.S. 88); THE ENFORCEMENT OF STATE PRICE CONTROL LAWS
(OLSEN V. NEBRASKA, 313 U.S. 236); THE REQUIREMENT THAT PUBLIC SCHOOL
CHILDREN SALUTE THE FLAG (BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624)
- THESE ARE ILLUSTRATIVE OF THE KIND OF STATE ACTION N2 WHICH MIGHT OR
MIGHT NOT BE CAUGHT IN THE BROAD REACHES OF SEC. 20 DEPENDENT ON THE
PREVAILING VIEW OF THE COURT AS CONSTITUTED WHEN THE CASE AROSE.  THOSE
WHO ENFORCED LOCAL LAW TODAY MIGHT NOT KNOW FOR MANY MONTHS (AND
MEANWHILE COULD NOT FIND OUT) WHETHER WHAT THEY DID DEPRIVED SOME ONE
OF DUE PROCESS OF LAW.  THE ENFORCEMENT OF A CRIMINAL STATUTE SO
CONSTRUED WOULD INDEED CAST LAW ENFORCEMENT AGENCIES LOOSE AT THEIR OWN
RISK ON A VAST UNCHARTED SEA. 

IF SUCH A CONSTRUCTION IS NOT NECESSARY, IT SHOULD BE AVOIDED.  THIS
COURT HAS CONSISTENTLY FAVORED THAT INTERPRETATION OF LEGISLATION WHICH
SUPPORTS ITS CONSTITUTIONALITY.  ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 348; LABOR BOARD V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1, 30; ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337, 351
352.  THAT REASON IS IMPELLING HERE SO THAT IF AT ALL POSSIBLE SEC. 20
MAY BE ALLOWED TO SERVE ITS GREAT PURPOSE - THE PROTECTION OF THE
INDIVIDUAL IN HIS CIVIL LIBERTIES. 

SEC. 20 WAS ENACTED TO ENFORCE THE FOURTEENTH AMENDMENT N3.  IT
DERIVES  FN4  FROM SEC. 2 OF THE CIVIL RIGHTS ACT OF APRIL 9, 1866.  14
STAT. 27.  FN5  SENATOR TRUMBULL, CHAIRMAN OF THE SENATE JUDICIARY
COMMITTEE WHICH REPORTED THE BILL, STATED THAT ITS PURPOSE WAS "TO
PROTECT ALL PERSONS IN THE UNITED STATES IN THEIR CIVIL RIGHTS, AND
FURNISH THE MEANS OF THEIR VINDICATION."  CONG. GLOBE, 39TH CONG., 1ST
SESS., P. 211.  IN ORIGIN IT WAS AN ANTIDISCRIMINATION MEASURE (AS ITS
LANGUAGE INDICATED), FRAMED TO PROTECT NEGROES IN THEIR NEWLY WON
RIGHTS.  SEE FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908), P.
21.  IT WAS AMENDED BY SEC. 17 OF THE ACT OF MAY 31, 1870, 16 STAT.
144,  FN6  AND MADE APPLICABLE TO "ANY INHABITANT OF ANY STATE OR
TERRITORY."  FN7  THE PROHIBITION AGAINST THE "DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES, SECURED OR PROTECTED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES" WAS INTRODUCED BY THE
REVISERS IN 1874.  R.S. SEC. 5510.  THOSE WORDS WERE TAKEN OVER FROM
SEC. 1 OF THE ACT OF APRIL 20, 1871, 17 STAT. 13(THE SO-CALLED KU-KLUX
ACT) WHICH PROVIDED CIVIL SUITS FOR REDRESS OF SUCH WRONGS.  FN8 SEE
CONG. REC., 43D CONG., 1ST SESS., P. 828.  THE 1874 REVISION WAS
APPLICABLE TO ANY PERSON WHO UNDER COLOR OF LAW, ETC., "SUBJECTS, OR
CAUSES TO BE SUBJECTED" ANY INHABITANT TO THE DEPRIVATION OF ANY
RIGHTS, ETC.  THE REQUIREMENT FOR A "WILLFUL" VIOLATION WAS INTRODUCED
BY THE DRAFTSMEN OF THE CRIMINAL CODE OF 1909.  ACT OF MARCH 4, 1909,
35 STAT. 1092.  AND WE ARE TOLD "WILLFULLY" WAS ADDED TO SEC. 20 IN
ORDER TO MAKE THE SECTION "LESS SEVERE."  43 CONG. REC., 60TH CONG., 2D
SESS., P. 3599. 

WE HESITATE TO SAY THAT WHEN CONGRESS SOUGHT TO ENFORCE THE FOURTEENTH
AMENDMENT  FN9  IN THIS FASHION IT DID A VAIN THING.  WE HESITATE TO
CONCLUDE THAT FOR 80 YEARS THIS EFFORT OF CONGRESS, RENEWED SEVERAL
TIMES, TO PROTECT THE IMPORTANT RIGHTS OF THE INDIVIDUAL GUARANTEED BY
THE FOURTEENTH AMENDMENT HAS BEEN AN IDLE GESTURE.  YET IF THE ACT
FALLS BY REASON OF VAGUENESS SO FAR AS DUE PROCESS OF LAW IS CONCERNED,
THERE WOULD SEEM TO BE A SIMILAR LACK OF SPECIFICITY WHEN THE
PRIVILEGES AND IMMUNITIES CLAUSE (MADDEN V. KENTUCKY, 309 U.S. 83) AND
THE EQUAL PROTECTION CLAUSE (SMITH V. TEXAS, 311 U.S. 128; HILL V.
TEXAS, 316 U.S. 400) OF THE FOURTEENTH AMENDMENT ARE INVOLVED.  ONLY IF
NO CONSTRUCTION CAN SAVE THE ACT FROM THIS CLAIM OF UNCONSTITUTIONALITY
ARE WE WILLING TO REACH THAT RESULT.  WE DO NOT REACH IT, FOR WE ARE OF
THE VIEW THAT IF SEC. 20 IS CONFINED MORE NARROWLY THAN THE LOWER
COURTS CONFINED IT, IT CAN BE PRESERVED AS ONE OF THE SANCTIONS TO THE
GREAT RIGHTS WHICH THE FOURTEENTH AMENDMENT WAS DESIGNED TO SECURE. 

      II 

WE RECENTLY POINTED OUT THAT "WILLFUL" IS A WORD "OF MANY MEANINGS,
ITS CONSTRUCTION OFTEN BEING INFLUENCED BY ITS CONTEXT."  SPIES V.
UNITED STATES, 317 U.S. 492, 497.  AT TIMES, AS THE COURT HELD IN
UNITED STATES V. MURDOCK, 290 U.S. 389, 394, THE WORD DENOTES AN ACT
WHICH IS INTENTIONAL RATHER THAN ACCIDENTAL.  AND SEE UNITED STATES V.
ILLINOIS CENTRAL R. CO., 303 U.S. 239.  BUT "WHEN USED IN A CRIMINAL
STATUTE IT GENERALLY MEANS AN ACT DONE WITH A BAD PURPOSE."  ID., P.
394.  AND SEE FELTON V. UNITED STATES, 96 U.S. 699; POTTER V. UNITED
STATES, 155 U.S. 438; SPURR V. UNITED STATES, 174 U.S. 728; HARGROVE V.
UNITED STATES, 67 F.2D 820.  IN THAT EVENT SOMETHING MORE IS REQUIRED
THAN THE DOING OF THE ACT PROSCRIBED BY THE STATUTE.  CF. UNITED STATES
V. BALINT, 258 U.S. 250.  AN EVIL MOTIVE TO ACCOMPLISH THAT WHICH THE
STATUTE CONDEMNS BECOMES A CONSTITUENT ELEMENT OF THE CRIME.  SPURR V.
UNITED STATES, SUPRA, P. 734; UNITED STATES V. MURDOCK, SUPRA, P. 395. 
AND THAT ISSUE MUST BE SUBMITTED TO THE JURY UNDER APPROPRIATE
INSTRUCTIONS.  UNITED STATES V. RAGEN, 314 U.S. 513, 524. 

AN ANALYSIS OF THE CASES IN WHICH "WILLFULLY" HAS BEEN HELD TO
CONNOTE MORE THAN AN ACT WHICH IS VOLUNTARY OR INTENTIONAL WOULD NOT
PROVE HELPFUL AS EACH TURNS ON ITS OWN PECULIAR FACTS.  THOSE CASES,
HOWEVER, MAKE CLEAR THAT IF WE CONSTRUE "WILLFULLY" IN SEC. 20 AS
CONNOTING A PURPOSE TO DEPRIVE A PERSON OF A SPECIFIC CONSTITUTIONAL
RIGHT, WE WOULD INTRODUCE NO INNOVATION.  THE COURT, INDEED, HAS
RECOGNIZED THAT THE REQUIREMENT OF A SPECIFIC INTENT TO DO A PROHIBITED
ACT MAY AVOID THOSE CONSEQUENCES TO THE ACCUSED WHICH MAY OTHERWISE
RENDER A VAGUE OR INDEFINITE STATUTE INVALID.  THE CONSTITUTIONAL VICE
IN SUCH A STATUTE IS THE ESSENTIAL INJUSTICE TO THE ACCUSED OF PLACING
HIM ON TRIAL FOR AN OFFENSE, THE NATURE OF WHICH THE STATUTE DOES NOT
DEFINE AND HENCE OF WHICH IT GIVES NO WARNING.  SEE UNITED STATES V.
COHEN GROCERY CO., SUPRA.  BUT WHERE THE PUNISHMENT IMPOSED IS ONLY FOR
AN ACT KNOWINGLY DONE WITH THE PURPOSE OF DOING THAT WHICH THE STATUTE
PROHIBITS, THE ACCUSED CANNOT BE SAID TO SUFFER FROM LACK OF WARNING OR
KNOWLEDGE THAT THE ACT WHICH HE DOES IS A VIOLATION OF LAW.  THE
REQUIREMENT THAT THE ACT MUST BE WILLFUL OR PURPOSEFUL MAY NOT RENDER
CERTAIN, FOR ALL PURPOSES, A STATUTORY DEFINITION OF THE CRIME WHICH IS
IN SOME RESPECTS UNCERTAIN.  BUT IT DOES RELIEVE THE STATUTE OF THE
OBJECTION THAT IT PUNISHES WITHOUT WARNING AN OFFENSE OF WHICH THE
ACCUSED WAS UNAWARE.  THAT WAS POINTED OUT BY MR. JUSTICE BRANDEIS
SPEAKING FOR THE COURT IN OMAECHEVARRIA V. IDAHO, 246 U.S. 343.  AN
IDAHO STATUTE MADE IT A MISDEMEANOR TO GRAZE SHEEP "UPON ANY RANGE
USUALLY OCCUPIED BY ANY CATTLE GROWER."  THE ARGUMENT WAS THAT THE
STATUTE WAS VOID FOR INDEFINITENESS BECAUSE IT FAILED TO PROVIDE FOR
THE ASCERTAINMENT OF BOUNDARIES OF A "RANGE" OR FOR DETERMINING WHAT
LENGTH OF TIME WAS NECESSARY TO MAKE A PRIOR OCCUPATION A "USUAL" ONE. 
THE COURT RULED THAT "ANY DANGER TO SHEEPMEN WHICH MIGHT OTHERWISE
ARISE FROM INDEFINITENESS, IS REMOVED BY SEC. 6314 OF REVISED CODES,
WHICH PROVIDES THAT:  'IN EVERY CRIME OR PUBLIC OFFENSE THERE MUST
EXIST A UNION, OR JOINT OPERATION, OF ACT AND INTENT, OR CRIMINAL
NEGLIGENCE.'"  ID., P. 348.  A SIMILAR RULING WAS MADE IN HYGRADE
PROVISION CO. V. SHERMAN, 266 U.S. 497.  THE CHARGE WAS THAT A CRIMINAL
STATUTE WHICH REGULATED THE SALE OF "KOSHER" MEAT OR PRODUCTS
"SANCTIONED BY THE ORTHODOX HEBREW RELIGIOUS REQUIREMENTS" WAS
UNCONSTITUTIONAL FOR WANT OF ANY ASCERTAINABLE STANDARD OF GUILT.  THE
COURT SPEAKING THROUGH MR. JUSTICE SUTHERLAND STATED, "...  SINCE THE
STATUTES REQUIRE A SPECIFIC INTENT TO DEFRAUD IN ORDER TO ENCOUNTER
THEIR PROHIBITIONS, THE HAZARD OF PROSECUTION WHICH APPELLANTS FEAR
LOSES WHATEVER SUBSTANTIAL FOUNDATION IT MIGHT HAVE IN THE ABSENCE OF
SUCH A REQUIREMENT."  266 U.S. PP. 502-503.  IN UNITED STATES V. RAGEN,
SUPRA, WE TOOK THAT COURSE IN A PROSECUTION FOR WILLFUL EVASION OF A
FEDERAL INCOME TAX WHERE IT WAS ALLEGED THAT THE DEFENDANT HAD DEDUCTED
MORE THAN "REASONABLE" ALLOWANCES FOR SALARIES.  BY CONSTRUING THE
STATUTE TO REQUIRE PROOF OF BAD FAITH WE AVOIDED THE SERIOUS QUESTION
WHICH THE RULE OF UNITED STATES V. COHEN GROCERY CO., SUPRA, MIGHT HAVE
PRESENTED.  WE THINK A LIKE COURSE IS APPROPRIATE HERE. 

MOREOVER, THE HISTORY OF SEC. 20 AFFORDS SOME SUPPORT FOR THAT
NARROWER CONSTRUCTION.  AS WE HAVE SEEN, THE WORD "WILLFULLY" WAS NOT
ADDED TO THE ACT UNTIL 1909.  PRIOR TO THAT TIME IT MAY BE THAT
CONGRESS INTENDED THAT HE WHO DEPRIVED A PERSON OF ANY RIGHT PROTECTED
BY THE CONSTITUTION SHOULD BE LIABLE WITHOUT MORE.  THAT WAS THE
PATTERN OF CRIMINAL LEGISLATION WHICH HAS BEEN SUSTAINED WITHOUT ANY
CHARGE OR PROOF OF SCIENTER.  SHEVLIN-CARPENTER CO. V. MINNESOTA, 218
U.S. 57; UNITED STATES V. BALINT, SUPRA.  AND THE PRESENT ACT IN ITS
ORIGINAL FORM WOULD HAVE BEEN SUSCEPTIBLE OF THE SAME INTERPRETATION
APART FROM THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT,
WHERE "PURPOSEFUL DISCRIMINATORY" ACTION MUST BE SHOWN.  SNOWDEN V.
HUGHES, 321 U.S. 1, 8-9.  BUT AS WE HAVE SEEN, THE WORD "WILLFULLY" WAS
ADDED TO MAKE THE SECTION "LESS SEVERE."  WE THINK THE INFERENCE IS
PERMISSIBLE THAT ITS SEVERITY WAS TO BE LESSENED BY MAKING IT
APPLICABLE ONLY WHERE THE REQUISITE BAD PURPOSE WAS PRESENT, THUS
REQUIRING SPECIFIC INTENT NOT ONLY WHERE DISCRIMINATION IS CLAIMED BUT
IN OTHER SITUATIONS AS WELL.  WE REPEAT THAT THE PRESENCE OF A BAD
PURPOSE OR EVIL INTENT ALONE MAY NOT BE SUFFICIENT.  WE DO SAY THAT A
REQUIREMENT OF A SPECIFIC INTENT TO DEPRIVE A PERSON OF A FEDERAL RIGHT
MADE DEFINITE BY DECISION OR OTHER RULE OF LAW SAVES THE ACT FROM ANY
CHARGE OF UNCONSTITUTIONALITY ON THE GROUNDS OF VAGUENESS. 

ONCE THE SECTION IS GIVEN THAT CONSTRUCTION, WE THINK THAT THE CLAIM
THAT THE SECTION LACKS AN ASCERTAINABLE STANDARD OF GUILT MUST FAIL. 
THE CONSTITUTIONAL REQUIREMENT THAT A CRIMINAL STATUTE BE DEFINITE
SERVES A HIGH FUNCTION.  IT GIVES A PERSON ACTING WITH REFERENCE TO THE
STATUTE FAIR WARNING THAT HIS CONDUCT IS WITHIN ITS PROHIBITION.  THIS
REQUIREMENT IS MET WHEN A STATUTE PROHIBITS ONLY "WILLFUL" ACTS IN THE
SENSE WE HAVE EXPLAINED.  ONE WHO DOES ACT WITH SUCH SPECIFIC INTENT IS
AWARE THAT WHAT HE DOES IS PRECISELY THAT WHICH THE STATUTE FORBIDS. 
HE IS UNDER NO NECESSITY OF GUESSING WHETHER THE STATUTE APPLIES TO HIM
(SEE CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385) FOR HE EITHER
KNOWS OR ACTS IN RECKLESS DISREGARD OF ITS PROHIBITION OF THE
DEPRIVATION OF A DEFINED CONSTITUTIONAL OR OTHER FEDERAL RIGHT.  SEE
GORIN V. UNITED STATES, 312 U.S. 19, 27-28.  NOR IS SUCH AN ACT BEYOND
THE UNDERSTANDING AND COMPREHENSION OF JURIES SUMMONED TO PASS ON
THEM.  THE ACT WOULD THEN NOT BECOME A TRAP FOR LAW ENFORCEMENT
AGENCIES ACTING IN GOOD FAITH.  "A MIND INTENT UPON WILLFUL EVASION IS
INCONSISTENT WITH SURPRISED INNOCENCE."  UNITED STATES V. RAGEN, SUPRA,
P. 524. 

IT IS SAID, HOWEVER, THAT THIS CONSTRUCTION OF THE ACT WILL NOT SAVE
IT FROM THE INFIRMITY OF VAGUENESS SINCE NEITHER A LAW ENFORCEMENT
OFFICIAL NOR A TRIAL JUDGE CAN KNOW WITH SUFFICIENT DEFINITENESS THE
RANGE OF RIGHTS THAT ARE CONSTITUTIONAL.  BUT THAT CRITICISM IS WIDE OF
THE MARK.  FOR THE SPECIFIC INTENT REQUIRED BY THE ACT IS AN INTENT TO
DEPRIVE A PERSON OF A RIGHT WHICH HAS BEEN MADE SPECIFIC EITHER BY THE
EXPRESS TERMS OF THE CONSTITUTION OR LAWS OF THE UNITED STATES OR BY
DECISIONS INTERPRETING THEM.  TAKE THE CASE OF A LOCAL OFFICER WHO
PERSISTS IN ENFORCING A TYPE OF ORDINANCE WHICH THE COURT HAS HELD
INVALID AS VIOLATIVE OF THE GUARANTEES OF FREE SPEECH OR FREEDOM OF
WORSHIP.  OR A LOCAL OFFICIAL CONTINUES TO SELECT JURIES IN A MANNER
WHICH FLIES IN THE TEETH OF DECISIONS OF THE COURT.  IF THOSE ACTS ARE
DONE WILLFULLY, HOW CAN THE OFFICER POSSIBLY CLAIM THAT HE HAD NO FAIR
WARNING THAT HIS ACTS WERE PROHIBITED BY THE STATUTE?  HE VIOLATES THE
STATUTE NOT MERELY BECAUSE HE HAS A BAD PURPOSE BUT BECAUSE HE ACTS IN
DEFIANCE OF ANNOUNCED RULES OF LAW.  HE WHO DEFIES A DECISION
INTERPRETING THE CONSTITUTION KNOWS PRECISELY WHAT HE IS DOING.  IF
SANE, HE HARDLY MAY BE HEARD TO SAY THAT HE KNEW NOT WHAT HE DID.  OF
COURSE, WILLFUL CONDUCT CANNOT MAKE DEFINITE THAT WHICH IS UNDEFINED. 
BUT WILLFUL VIOLATORS OF CONSTITUTIONAL REQUIREMENTS, WHICH HAVE BEEN
DEFINED, CERTAINLY ARE IN NO POSITION TO SAY THAT THEY HAD NO ADEQUATE
ADVANCE NOTICE THAT THEY WOULD BE VISITED WITH PUNISHMENT.  WHEN THEY
ACT WILLFULLY IN THE SENSE IN WHICH WE USE THE WORD, THEY ACT IN OPEN
DEFIANCE OR IN RECKLESS DISREGARD OF A CONSTITUTIONAL REQUIREMENT WHICH
HAS BEEN MADE SPECIFIC AND DEFINITE.  WHEN THEY ARE CONVICTED FOR SO
ACTING, THEY ARE NOT PUNISHED FOR VIOLATING AN UNKNOWABLE SOMETHING. 

THE ACT SO CONSTRUED HAS A NARROWER RANGE IN ALL ITS APPLICATIONS
THAN IF IT WERE INTERPRETED IN THE MANNER URGED BY THE GOVERNMENT.  BUT
THE ONLY OTHER ALTERNATIVE, IF WE ARE TO AVOID GRAVE CONSTITUTIONAL
QUESTIONS, IS TO CONSTRUE IT AS APPLICABLE ONLY TO THOSE ACTS WHICH ARE
CLEARLY MARKED BY THE SPECIFIC PROVISIONS OF THE CONSTITUTION AS
DEPRIVATIONS OF CONSTITUTIONAL RIGHTS, PRIVILEGES, OR IMMUNITIES, AND
WHICH ARE KNOWINGLY DONE WITHIN THE RULE OF ELLIS V. UNITED STATES,
SUPRA.  BUT AS WE HAVE SAID, THAT COURSE WOULD MEAN THAT ALL PROTECTION
FOR VIOLATIONS OF DUE PROCESS OF LAW WOULD DROP OUT OF THE ACT.  WE
TAKE THE COURSE WHICH MAKES IT POSSIBLE TO PRESERVE THE ENTIRE ACT AND
SAVE ALL PARTS OF IT FROM CONSTITUTIONAL CHALLENGE.  IF CONGRESS
DESIRES TO GIVE THE ACT WIDER SCOPE, IT MAY FIND WAYS OF DOING SO.
MOREOVER, HERE AS IN APEX HOSIERY CO. V. LEADER, 310 U.S. 469, WE ARE
DEALING WITH A SITUATION WHERE THE INTERPRETATION OF THE ACT WHICH WE
ADOPT DOES NOT PRECLUDE ANY STATE FROM PUNISHING ANY ACT MADE CRIMINAL
BY ITS OWN LAWS.  INDEED, THE NARROW CONSTRUCTION WHICH WE HAVE ADOPTED
MORE NEARLY PRESERVES THE TRADITIONAL BALANCE BETWEEN THE STATES AND
THE NATIONAL GOVERNMENT IN LAW ENFORCEMENT THAN THAT WHICH IS URGED
UPON US. 

UNITED STATES V. CLASSIC, SUPRA, MET THE TEST WE SUGGEST.  IN THAT
CASE WE WERE DEALING MERELY WITH THE VALIDITY OF AN INDICTMENT, NOT
WITH INSTRUCTIONS TO THE JURY.  THE INDICTMENT WAS SUFFICIENT SINCE IT
CHARGED A WILLFUL FAILURE AND REFUSAL OF THE DEFENDANT ELECTION
OFFICIALS TO COUNT THE VOTES CAST, BY THEIR ALTERATION OF THE BALLOTS
AND BY THEIR FALSE CERTIFICATION OF THE NUMBER OF VOTES CAST FOR THE
RESPECTIVE CANDIDATES.  313 U.S. PP. 308-309.  THE RIGHT SO TO VOTE IS
GUARANTEED BY ART. I, SEC. 2 AND SEC. 4 OF THE CONSTITUTION.  SUCH A
CHARGE IS ADEQUATE SINCE HE WHO ALTERS BALLOTS OR WITHOUT LEGAL
JUSTIFICATION DESTROYS THEM WOULD BE ACTING WILLFULLY IN THE SENSE IN
WHICH SEC. 20 USES THE TERM.  THE FACT THAT THE DEFENDANTS MAY NOT HAVE
BEEN THINKING IN CONSTITUTIONAL TERMS IS NOT MATERIAL WHERE THEIR AIM
WAS NOT TO ENFORCE LOCAL LAW BUT TO DEPRIVE A CITIZEN OF A RIGHT AND
THAT RIGHT WAS PROTECTED BY THE CONSTITUTION.  WHEN THEY SO ACT THEY AT
LEAST ACT IN RECKLESS DISREGARD OF CONSTITUTIONAL PROHIBITIONS OR
GUARANTEES.  LIKEWISE, IT IS PLAIN THAT BASIC TO THE CONCEPT OF DUE
PROCESS OF LAW IN A CRIMINAL CASE IS A TRIAL - A TRIAL IN A COURT OF
LAW, NOT A "TRIAL BY ORDEAL."  BROWN V. MISSISSIPPI, 297 U.S. 278,
285.  IT COULD HARDLY BE DOUBTED THAT THEY WHO "UNDER COLOR OF ANY LAW,
STATUTE, ORDINANCE, REGULATION, OR CUSTOM" ACT WITH THAT EVIL MOTIVE
VIOLATE SEC. 20.  THOSE WHO DECIDE TO TAKE THE LAW INTO THEIR OWN HANDS
AND ACT AS PROSECUTOR, JURY, JUDGE, AND EXECUTIONER PLAINLY ACT TO
DEPRIVE A PRISONER OF THE TRIAL WHICH DUE PROCESS OF LAW GUARANTEES
HIM.  AND SUCH A PURPOSE NEED NOT BE EXPRESSED; IT MAY AT TIMES BE
REASONABLY INFERRED FROM ALL THE CIRCUMSTANCES ATTENDANT ON THE ACT. 
SEE TOT V. UNITED STATES, 319 U.S. 463. 

THE DIFFICULTY HERE IS THAT THIS QUESTION OF INTENT WAS NOT SUBMITTED
TO THE JURY WITH THE PROPER INSTRUCTIONS.  THE COURT CHARGED THAT
PETITIONERS ACTED ILLEGALLY IF THEY APPLIED MORE FORCE THAN WAS
NECESSARY TO MAKE THE ARREST EFFECTUAL OR TO PROTECT THEMSELVES FROM
THE PRISONER'S ALLEGED ASSAULT.  BUT IN VIEW OF OUR CONSTRUCTION OF THE
WORD "WILLFULLY" THE JURY SHOULD HAVE BEEN FURTHER INSTRUCTED THAT IT
WAS NOT SUFFICIENT THAT PETITIONERS HAD A GENERALLY BAD PURPOSE.  TO
CONVICT IT WAS NECESSARY FOR THEM TO FIND THAT PETITIONERS HAD THE
PURPOSE TO DEPRIVE THE PRISONER OF A CONSTITUTIONAL RIGHT, E.G. THE
RIGHT TO BE TRIED BY A COURT RATHER THAN BY ORDEAL.  AND IN DETERMINING
WHETHER THAT REQUISITE BAD PURPOSE WAS PRESENT THE JURY WOULD BE
ENTITLED TO CONSIDER ALL THE ATTENDANT CIRCUMSTANCES - THE MALICE OF
PETITIONERS, THE WEAPONS USED IN THE ASSAULT, ITS CHARACTER AND
DURATION, THE PROVOCATION, IF ANY, AND THE LIKE. 

IT IS TRUE THAT NO EXCEPTION WAS TAKEN TO THE TRIAL COURT'S CHARGE. 
NORMALLY WE WOULD UNDER THOSE CIRCUMSTANCES NOT TAKE NOTE OF THE
ERROR.  SEE JOHNSON V. UNITED STATES, 318 U.S. 189, 200.  BUT THERE ARE
EXCEPTIONS TO THAT RULE.  UNITED STATES V. ATKINSON, 297 U.S. 157, 160;
CLYATT V. UNITED STATES, 197 U.S. 207, 221-222.  AND WHERE THE ERROR IS
SO FUNDAMENTAL AS NOT TO SUBMIT TO THE JURY THE ESSENTIAL INGREDIENTS
OF THE ONLY OFFENSE ON WHICH THE CONVICTION COULD REST, WE THINK IT IS
NECESSARY TO TAKE NOTE OF IT ON OUR OWN MOTION.  EVEN THOSE GUILTY OF
THE MOST HEINOUS OFFENSES ARE ENTITLED TO A FAIR TRIAL.  WHATEVER THE
DEGREE OF GUILT, THOSE CHARGED WITH A FEDERAL CRIME ARE ENTITLED TO BE
TRIED BY THE STANDARDS OF GUILT WHICH CONGRESS HAS PRESCRIBED. 
                         III 

IT IS SAID, HOWEVER, THAT PETITIONERS DID NOT ACT "UNDER COLOR OF ANY
LAW" WITHIN THE MEANING OF SEC. 20 OF THE CRIMINAL CODE.  WE DISAGREE. 
WE ARE OF THE VIEW THAT PETITIONERS ACTED UNDER "COLOR" OF LAW IN
MAKING THE ARREST OF ROBERT HALL AND IN ASSAULTING HIM.  THEY WERE
OFFICERS OF THE LAW WHO MADE THE ARREST.  BY THEIR OWN ADMISSIONS THEY
ASSAULTED HALL IN ORDER TO PROTECT THEMSELVES AND TO KEEP THEIR
PRISONER FROM ESCAPING.  IT WAS THEIR DUTY UNDER GEORGIA LAW TO MAKE
THE ARREST EFFECTIVE.  HENCE, THEIR CONDUCT COMES WITHIN THE STATUTE. 

SOME OF THE ARGUMENTS WHICH HAVE BEEN ADVANCED IN SUPPORT OF THE
CONTRARY CONCLUSION SUGGEST THAT THE QUESTION UNDER SEC. 20 IS WHETHER
CONGRESS HAS MADE IT A FEDERAL OFFENSE FOR A STATE OFFICER TO VIOLATE
THE LAW OF HIS STATE.  BUT THERE IS NO WARRANT FOR TREATING THE
QUESTION IN STATE LAW TERMS.  THE PROBLEM IS NOT WHETHER STATE LAW HAS
BEEN VIOLATED BUT WHETHER AN INHABITANT OF A STATE HAS BEEN DEPRIVED OF
A FEDERAL RIGHT BY ONE WHO ACTS UNDER "COLOR OF ANY LAW."  HE WHO ACTS
UNDER "COLOR" OF LAW MAY BE A FEDERAL OFFICER OR A STATE OFFICER.  HE
MAY ACT UNDER "COLOR" OF FEDERAL LAW OR OF STATE LAW.  THE STATUTE DOES
NOT COME INTO PLAY MERELY BECAUSE THE FEDERAL LAW OR THE STATE LAW
UNDER WHICH THE OFFICER PURPORTS TO ACT IS VIOLATED.  IT IS APPLICABLE
WHEN AND ONLY WHEN SOMEONE IS DEPRIVED OF A FEDERAL RIGHT BY THAT
ACTION.  THE FACT THAT IT IS ALSO A VIOLATION OF STATE LAW DOES NOT
MAKE IT ANY THE LESS A FEDERAL OFFENSE PUNISHABLE AS SUCH.  NOR DOES
ITS PUNISHMENT BY FEDERAL AUTHORITY ENCROACH ON STATE AUTHORITY OR
RELIEVE THE STATE FROM ITS RESPONSIBILITY FOR PUNISHING STATE
OFFENSES.  FN10 

WE AGREE THAT WHEN THIS STATUTE IS APPLIED TO THE ACTION OF STATE
OFFICIALS, IT SHOULD BE CONSTRUED SO AS TO RESPECT THE PROPER BALANCE
BETWEEN THE STATES AND THE FEDERAL GOVERNMENT IN LAW ENFORCEMENT. 
VIOLATION OF LOCAL LAW DOES NOT NECESSARILY MEAN THAT FEDERAL RIGHTS
HAVE BEEN INVADED.  THE FACT THAT A PRISONER IS ASSAULTED, INJURED, OR
EVEN MURDERED BY STATE OFFICIALS DOES NOT NECESSARILY MEAN THAT HE IS
DEPRIVED OF ANY RIGHT PROTECTED OR SECURED BY THE CONSTITUTION OR LAWS
OF THE UNITED STATES.  CF. LOGAN V. UNITED STATES, 144 U.S. 263,
DEALING WITH ASSAULTS BY FEDERAL OFFICIALS.  THE FOURTEENTH AMENDMENT
DID NOT ALTER THE BASIC RELATIONS BETWEEN THE STATES AND THE NATIONAL
GOVERNMENT.  UNITED STATES V. HARRIS, 106 U.S. 629; IN RE KEMMLER, 136
U.S. 436, 448.  OUR NATIONAL GOVERNMENT IS ONE OF DELEGATED POWERS
ALONE.  UNDER OUR FEDERAL SYSTEM THE ADMINISTRATION OF CRIMINAL JUSTICE
RESTS WITH THE STATES EXCEPT AS CONGRESS, ACTING WITHIN THE SCOPE OF
THOSE DELEGATED POWERS, HAS CREATED OFFENSES AGAINST THE UNITED
STATES.  JEROME V. UNITED STATES, 318 U.S. 101, 105.  AS STATED IN
UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 553-554, "IT IS NO MORE THE
DUTY OR WITHIN THE POWER OF THE UNITED STATES TO PUNISH FOR A
CONSPIRACY TO FALSELY IMPRISON OR MURDER WITHIN A STATE, THAN IT WOULD
BE TO PUNISH FOR FALSE IMPRISONMENT OR MURDER ITSELF."  AND SEE UNITED
STATES V. FOX, 95 U.S. 670, 672.  IT IS ONLY STATE ACTION OF A
"PARTICULAR CHARACTER" THAT IS PROHIBITED BY THE FOURTEENTH AMENDMENT
AND AGAINST WHICH THE AMENDMENT AUTHORIZES CONGRESS TO AFFORD RELIEF. 
CIVIL RIGHTS CASES, 109 U.S. 3, 11, 13.  THUS CONGRESS IN SEC. 20 OF
THE CRIMINAL CODE DID NOT UNDERTAKE TO MAKE ALL TORTS OF STATE
OFFICIALS FEDERAL CRIMES.  IT BROUGHT WITHIN SEC. 20 ONLY SPECIFIED
ACTS DONE "UNDER COLOR" OF LAW AND THEN ONLY THOSE ACTS WHICH DEPRIVED
A PERSON OF SOME RIGHT SECURED BY THE CONSTITUTION OR LAWS OF THE
UNITED STATES. 

THIS SECTION WAS BEFORE US IN UNITED STATES V. CLASSIC, 313 U.S. 299,
326, WHERE WE SAID: "MISUSE OF POWER, POSSESSED BY VIRTUE OF STATE LAW
AND MADE POSSIBLE ONLY BECAUSE THE WRONGDOER IS CLOTHED WITH THE
AUTHORITY OF STATE LAW, IS ACTION TAKEN 'UNDER COLOR OF' STATE LAW." 
IN THAT CASE STATE ELECTION OFFICIALS WERE CHARGED WITH FAILURE TO
COUNT THE VOTES AS CAST, ALTERATION OF THE BALLOTS, AND FALSE
CERTIFICATION OF THE NUMBER OF VOTES CAST FOR THE RESPECTIVE
CANDIDATES.  313 U.S. PP. 308-309.  WE STATED THAT THOSE ACTS OF THE
DEFENDANTS "WERE COMMITTED IN THE COURSE OF THEIR PERFORMANCE OF DUTIES
UNDER THE LOUISIANA STATUTE REQUIRING THEM TO COUNT THE BALLOTS, TO
RECORD THE RESULT OF THE COUNT, AND TO CERTIFY THE RESULT OF THE
ELECTION."  ID., PP. 325-326.  IN THE PRESENT CASE, AS WE HAVE SAID,
THE DEFENDANTS WERE OFFICERS OF THE LAW WHO HAD MADE AN ARREST AND WHO
BY THEIR OWN ADMISSIONS MADE THE ASSAULT IN ORDER TO PROTECT THEMSELVES
AND TO KEEP THE PRISONER FROM ESCAPING, I.E., TO MAKE THE ARREST
EFFECTIVE.  THAT WAS A DUTY THEY HAD UNDER GEORGIA LAW.  UNITED STATES
V. CLASSIC IS, THEREFORE, INDISTINGUISHABLE FROM THIS CASE SO FAR AS
"UNDER COLOR OF" STATE LAW IS CONCERNED.  IN EACH OFFICERS OF THE STATE
WERE PERFORMING OFFICIAL DUTIES; IN EACH THE POWER WHICH THEY WERE
AUTHORIZED TO EXERCISE WAS MISUSED.  WE CANNOT DRAW A DISTINCTION
BETWEEN THEM UNLESS WE ARE TO SAY THAT SEC. 20 IS NOT APPLICABLE TO
POLICE OFFICERS.  BUT THE BROAD SWEEP OF ITS LANGUAGE LEAVES NO ROOM
FOR SUCH AN EXCEPTION. 

IT IS SAID THAT WE SHOULD ABANDON THE HOLDING OF THE CLASSIC CASE. 
IT IS SUGGESTED THAT THE PRESENT PROBLEM WAS NOT CLEARLY IN FOCUS IN
THAT CASE AND THAT ITS HOLDING WAS ILL-ADVISED.  A READING OF THE
OPINION MAKES PLAIN THAT THE QUESTION WAS SQUARELY INVOLVED AND
SQUARELY MET.  IT FOLLOWED THE RULE ANNOUNCED IN EX PARTE VIRGINIA, 100
U.S. 339, 346, THAT A STATE JUDGE WHO IN VIOLATION OF STATE LAW
DISCRIMINATED AGAINST NEGROES IN THE SELECTION OF JURIES VIOLATED THE
ACT OF MARCH 1, 1875, 18 STAT. 336.  IT IS TRUE THAT THAT STATUTE DID
NOT CONTAIN THE WORDS UNDER "COLOR" OF LAW.  BUT THE COURT IN DECIDING
WHAT WAS STATE ACTION WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT
HELD THAT IT WAS IMMATERIAL THAT THE STATE OFFICER EXCEEDED THE LIMITS
OF HIS AUTHORITY.  "...  AS HE ACTS IN THE NAME AND FOR THE STATE, AND
IS CLOTHED WITH THE STATE'S POWER, HIS ACT IS THAT OF THE STATE.  THIS
MUST BE SO, OR THE CONSTITUTIONAL PROHIBITION HAS NO MEANING.  THEN THE
STATE HAS CLOTHED ONE OF ITS AGENTS WITH POWER TO ANNUL OR TO EVADE
IT."  100 U.S. AT P. 347.  AND SEE VIRGINIA V. RIVES, 100 U.S. 313,
321.  THE CLASSIC CASE RECOGNIZED, WITHOUT DISSENT, THAT THE CONTRARY
VIEW WOULD DEFEAT THE GREAT PURPOSE WHICH SEC. 20 WAS DESIGNED TO
SERVE.  REFERENCE IS MADE TO STATEMENTS  FN11  OF SENATOR TRUMBULL IN
HIS DISCUSSION OF SEC. 2 OF THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27,
AND TO STATEMENTS OF SENATOR SHERMAN CONCERNING THE 1870 ACT  FN12  AS
SUPPORTING THE CONCLUSION THAT "UNDER COLOR OF ANY LAW" WAS DESIGNED TO
INCLUDE ONLY ACTION TAKEN BY OFFICIALS PURSUANT TO STATE LAW.  BUT
THOSE STATEMENTS IN THEIR CONTEXT ARE INCONCLUSIVE ON THE PRECISE
PROBLEM INVOLVED IN THE CLASSIC CASE AND IN THE PRESENT CASE.  WE ARE
NOT DEALING HERE WITH A CASE WHERE AN OFFICER NOT AUTHORIZED TO ACT
NEVERTHELESS TAKES ACTION.  HERE THE STATE OFFICERS WERE AUTHORIZED TO
MAKE AN ARREST AND TO TAKE SUCH STEPS AS WERE NECESSARY TO MAKE THE
ARREST EFFECTIVE.  THEY ACTED WITHOUT AUTHORITY ONLY IN THE SENSE THAT
THEY USED EXCESSIVE FORCE IN MAKING THE ARREST EFFECTIVE.  IT IS CLEAR
THAT UNDER "COLOR" OF LAW MEANS UNDER "PRETENSE" OF LAW.  THUS ACTS OF
OFFICERS IN THE AMBIT OF THEIR PERSONAL PURSUITS ARE PLAINLY EXCLUDED. 
ACTS OF OFFICERS WHO UNDERTAKE TO PERFORM THEIR OFFICIAL DUTIES ARE
INCLUDED WHETHER THEY HEW TO THE LINE OF THEIR AUTHORITY OR OVERSTEP
IT.  IF, AS SUGGESTED, THE STATUTE WAS DESIGNED TO EMBRACE ONLY ACTION
WHICH THE STATE IN FACT AUTHORIZED, THE WORDS "UNDER COLOR OF ANY LAW"
WERE HARDLY APT WORDS TO EXPRESS THE IDEA. 

NOR ARE THE DECISIONS UNDER SEC. 33 OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 76, IN POINT.  THAT SECTION GIVES THE RIGHT OF REMOVAL TO A
FEDERAL COURT OF ANY CRIMINAL PROSECUTION BEGUN IN A STATE COURT
AGAINST A REVENUE OFFICER OF THE UNITED STATES "ON ACCOUNT OF ANY ACT
DONE UNDER COLOR OF HIS OFFICE OR OF ANY SUCH (REVENUE) LAW."  THE
CASES UNDER IT RECOGNIZE THAT IT IS AN "EXCEPTIONAL" PROCEDURE WHICH
WRESTS FROM STATE COURTS THE POWER TO TRY OFFENSES AGAINST THEIR OWN
LAWS.  MARYLAND V. SOPER (NO. 1), 270 U.S. 9, 29, 35; COLORADO V.
SYMES, 286 U.S. 510, 518.  THUS THE REQUIREMENTS OF THE SHOWING
NECESSARY FOR REMOVAL ARE STRICT.  SEE MARYLAND V. SOPER (NO. 2), 270
U.S. 36, 42, SAYING THAT ACTS "NECESSARY TO MAKE THE ENFORCEMENT
EFFECTIVE" ARE DONE UNDER "COLOR" OF LAW.  HENCE THOSE CASES DO NOT
SUPPLY AN AUTHORITATIVE GUIDE TO THE PROBLEMS UNDER SEC. 20 WHICH SEEKS
TO AFFORD PROTECTION AGAINST OFFICERS WHO POSSESS AUTHORITY TO ACT AND
WHO EXERCISE THEIR POWERS IN SUCH A WAY AS TO DEPRIVE A PERSON OF
RIGHTS SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES.  IT IS ONE THING TO DEPRIVE STATE COURTS OF THEIR AUTHORITY TO
ENFORCE THEIR OWN LAWS.  IT IS QUITE ANOTHER TO EMASCULATE AN ACT OF
CONGRESS DESIGNED TO SECURE INDIVIDUALS THEIR CONSTITUTIONAL RIGHTS BY
FINELY SPUN DISTINCTIONS CONCERNING THE PRECISE SCOPE OF THE AUTHORITY
OF OFFICERS OF THE LAW.  CF. YICK WO V. HOPKINS, 118 U.S. 356. 

BUT BEYOND THAT IS THE PROBLEM OF STARE DECISIS.  THE CONSTRUCTION
GIVEN SEC. 20 IN THE CLASSIC CASE FORMULATED A RULE OF LAW WHICH HAS
BECOME THE BASIS OF FEDERAL ENFORCEMENT IN THIS IMPORTANT FIELD.  THE
RULE ADOPTED IN THAT CASE WAS FORMULATED AFTER MATURE CONSIDERATION. 
IT SHOULD BE GOOD FOR MORE THAN ONE DAY ONLY.  WE DO NOT HAVE HERE A
SITUATION COMPARABLE TO MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96,
WHERE WE OVERRULED A DECISION DEMONSTRATED TO BE A SPORT IN THE LAW AND
INCONSISTENT WITH WHAT PRECEDED AND WHAT FOLLOWED.  THE CLASSIC CASE
WAS NOT THE PRODUCT OF HASTY ACTION OR INADVERTENCE.  IT WAS NOT OUT OF
LINE WITH THE CASES WHICH PRECEDED.  IT WAS DESIGNED TO FASHION THE
GOVERNING RULE OF LAW IN THIS IMPORTANT FIELD.  WE ARE NOT DEALING WITH
CONSTITUTIONAL INTERPRETATIONS WHICH THROUGHOUT THE HISTORY OF THE
COURT HAVE WISELY REMAINED FLEXIBLE AND SUBJECT TO FREQUENT
REEXAMINATION.  THE MEANING WHICH THE CLASSIC CASE GAVE TO THE PHRASE
"UNDER COLOR OF ANY LAW" INVOLVED ONLY A CONSTRUCTION OF THE STATUTE. 
HENCE IF IT STATES A RULE UNDESIRABLE IN ITS CONSEQUENCES, CONGRESS CAN
CHANGE IT.  WE ADD ONLY TO THE INSTABILITY AND UNCERTAINTY OF THE LAW
IF WE REVISE THE MEANING OF SEC. 20 TO MEET THE EXIGENCIES OF EACH CASE
COMING BEFORE US. 

SINCE THERE MUST BE A NEW TRIAL, THE JUDGMENT BELOW IS REVERSED. 

FN1  A DEMURRER TO THE INDICTMENT ALLEGING AMONG OTHER THINGS THAT
THE MATTERS CHARGED DID NOT CONSTITUTE AN OFFENSE AGAINST THE UNITED
STATES AND DID NOT COME WITHIN THE PURVIEW OF SEC. 20 WAS OVERRULED. 
AT THE END OF THE GOVERNMENT'S CASE PETITIONERS' MOTION FOR A DIRECTED
VERDICT ON THE GROUNDS OF THE INSUFFICIENCY OF THE EVIDENCE WAS
DENIED. 

FN2  MOREOVER, FEDERAL AS WELL AS STATE OFFICIALS WOULD RUN AFOUL OF
THE ACT SINCE IT SPEAKS OF "ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM."  COMPARABLE UNCERTAINTIES WILL EXIST IN THE APPLICATION OF THE
DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

FN3  SEE CONG. GLOBE, 41ST CONG., 2D SESS., PP. 3807-3808, 3881. 
FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908), PP. 19-54, 219,
223, 227; HAGUE V. C.I.O., 307 U.S. 496, 510. 

FN4  SEE UNITED STATES V. CLASSIC, 313 U.S. 299, 327, NOTE 10. 

FN5  "THAT ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE,
ORDINANCE, REGULATION, OR CUSTOM, SHALL SUBJECT, OR CAUSE TO BE
SUBJECTED, ANY INHABITANT OF ANY STATE OR TERRITORY TO THE DEPRIVATION
OF ANY RIGHT SECURED OR PROTECTED BY THIS ACT, OR TO DIFFERENT
PUNISHMENT, PAINS, OR PENALTIES ON ACCOUNT OF SUCH PERSON HAVING AT ANY
TIME BEEN HELD IN A CONDITION OF SLAVERY OR INVOLUNTARY SERVITUDE,
EXCEPT AS A PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY
CONVICTED, OR BY REASON OF HIS COLOR OR RACE, THAN IS PRESCRIBED FOR
THE PUNISHMENT OF WHITE PERSONS, SHALL BE DEEMED GUILTY OF A
MISDEMEANOR, AND, ON CONVICTION, SHALL BE PUNISHED BY FINE NOT
EXCEEDING ONE THOUSAND DOLLARS, OR IMPRISONMENT NOT EXCEEDING ONE YEAR,
OR BOTH, IN THE DISCRETION OF THE COURT." 

FN6  "THAT ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE,
ORDINANCE, REGULATION, OR CUSTOM, SHALL SUBJECT, OR CAUSE TO BE
SUBJECTED, ANY INHABITANT OF ANY STATE OR TERRITORY TO THE DEPRIVATION
OF ANY RIGHT SECURED OR PROTECTED BY THE LAST PRECEDING SECTION OF THIS
ACT, OR TO DIFFERENT PUNISHMENT, PAINS, OR PENALTIES ON ACCOUNT OF SUCH
PERSON BEING AN ALIEN, OR BY REASON OF HIS COLOR OR RACE, THAN IS
PRESCRIBED FOR THE PUNISHMENT OF CITIZENS, SHALL BE DEEMED GUILTY OF A
MISDEMEANOR, AND, ON CONVICTION, SHALL BE PUNISHED BY FINE NOT
EXCEEDING ONE THOUSAND DOLLARS, OR IMPRISONMENT NOT EXCEEDING ONE YEAR,
OR BOTH, IN THE DISCRETION OF THE COURT."  THE PRECEDING SECTION
REFERRED TO READ AS FOLLOWS: 

"THAT ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES SHALL
HAVE THE SAME RIGHT IN EVERY STATE AND TERRITORY IN THE UNITED STATES
TO MAKE AND ENFORCE CONTRACTS, TO SUE, BE PARTIES, GIVE EVIDENCE, AND
TO THE FULL AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE
SECURITY OF PERSON AND PROPERTY AS IS ENJOYED BY WHITE CITIZENS, AND
SHALL BE SUBJECT TO LIKE PUNISHMENT, PAINS, PENALTIES, TAXES, LICENSES,
AND EXACTIONS OF EVERY KIND, AND NONE OTHER, ANY LAW, STATUTE,
ORDINANCE, REGULATION, OR CUSTOM TO THE CONTRARY NOTWITHSTANDING.  NO
TAX OR CHARGE SHALL BE IMPOSED OR ENFORCED BY ANY STATE UPON ANY PERSON
IMMIGRATING THERETO FROM A FOREIGN COUNTRY WHICH IS NOT EQUALLY IMPOSED
AND ENFORCED UPON EVERY PERSON IMMIGRATING TO SUCH STATE FROM ANY OTHER
FOREIGN COUNTRY; AND ANY LAW OF ANY STATE IN CONFLICT WITH THIS
PROVISION IS HEREBY DECLARED NULL AND VOID."    FN7  ITS SPONSOR,
SENATOR STEWART, STATED THAT "IT EXTENDS THE OPERATION OF THE CIVIL
RIGHTS BILL, WHICH IS WELL KNOWN IN THE SENATE AND TO THE COUNTRY, TO
ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED STATES."  CONG.
GLOBE, 41ST CONG., 2D SESS., P. 1536. 

FN8  THAT SECTION PROVIDED IN PART:    "THAT ANY PERSON WHO, UNDER
COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE OF
ANY STATE, SHALL SUBJECT, OR CAUSE TO BE SUBJECTED, ANY PERSON WITHIN
THE JURISDICTION OF THE UNITED STATES TO THE DEPRIVATION OF ANY RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION OF THE UNITED
STATES, SHALL, ANY SUCH LAW, STATUTE, ORDINANCE, REGULATION, CUSTOM, OR
USAGE OF THE STATE TO THE CONTRARY NOTWITHSTANDING, BE LIABLE TO THE
PARTY INJURED IN ANY ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS  ..." 

THIS SECTION BECAME SEC. 1979 OF THE REVISED STATUTES AND IS NOW
FOUND IN 8 U.S.C. SEC. 43.  SEE HAGUE V. C.I.O., SUPRA, NOTE 3, P.
510. 

FN9  SEC. 5 THEREOF PROVIDES:  "THE CONGRESS SHALL HAVE POWER TO
ENFORCE, BY APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS ARTICLE." 

FN10  THE PETITIONERS MAY BE GUILTY OF MANSLAUGHTER OR MURDER UNDER
GEORGIA LAW AND AT THE SAME TIME LIABLE FOR THE FEDERAL OFFENSE
PROSCRIBED BY SEC. 20.  THE INSTANCES WHERE "AN ACT DENOUNCED AS A
CRIME BY BOTH NATIONAL AND STATE SOVEREIGNTIES" MAY BE PUNISHED BY EACH
WITHOUT VIOLATION OF THE DOUBLE JEOPARDY PROVISION OF THE FIFTH
AMENDMENT ARE COMMON.  UNITED STATES V. LANZA, 260 U.S. 377, 382;
HEBERT V. LOUISIANA, 272 U.S. 312. 

FN11  CONG. GLOBE, 39TH CONG., 1ST SESS., P. 1759. 

FN12  CONG. GLOBE, 41ST CONG., 2D SESS., P. 3663. 

MR. JUSTICE RUTLEDGE, CONCURRING IN THE RESULT. 

FOR THE COMPELLING REASON STATED AT THE END OF THIS OPINION I CONCUR
IN REVERSING THE JUDGMENT AND REMANDING THE CAUSE FOR FURTHER
PROCEEDINGS.  BUT FOR THAT REASON, MY VIEWS WOULD REQUIRE THAT MY VOTE
BE CAST TO AFFIRM THE JUDGMENT, FOR THE REASONS STATED BY MR. JUSTICE
MURPHY AND OTHERS I FEEL FORCED, IN THE PECULIAR SITUATION, TO STATE. 

THE CASE COMES HERE ESTABLISHED IN FACT AS A GROSS ABUSE OF AUTHORITY
BY STATE OFFICERS.  ENTRUSTED WITH THE STATE'S POWER AND USING IT,
WITHOUT A WARRANT OR WITH ONE OF ONLY DOUBTFUL LEGALITY  FN1  THEY
INVADED A CITIZEN'S HOME, ARRESTED HIM FOR ALLEGED THEFT OF A TIRE,
FORCIBLY TOOK HIM IN HANDCUFFS TO THE COURTHOUSE YARD, AND THERE BEAT
HIM TO DEATH.  PREVIOUSLY THEY HAD THREATENED TO KILL HIM, FORTIFIED
THEMSELVES AT A NEAR-BY BAR, AND RESISTED THE BARTENDER'S IMPORTUNITIES
NOT TO CARRY OUT THE ARREST.  UPON THIS AND OTHER EVIDENCE WHICH
OVERWHELMINGLY SUPPORTS (140 F.2D AT 665) THE VERDICT, TOGETHER WITH
INSTRUCTIONS ADEQUATELY COVERING AN OFFICER'S RIGHT TO USE FORCE, THE
JURY FOUND THE PETITIONERS GUILTY. 

       I 

THE VERDICT HAS SHAPED THEIR POSITION HERE.  THEIR CONTENTION HARDLY
DISPUTES THE FACTS ON WHICH IT RESTS.  FN2  THEY DO NOT COME THEREFORE
AS FAITHFUL STATE OFFICERS, INNOCENT OF CRIME.  JUSTIFICATION HAS BEEN
FORECLOSED.  ACCORDINGLY, THEIR ARGUMENT NOW ADMITS THE OFFENSE, BUT
INSISTS IT WAS AGAINST THE STATE ALONE, NOT THE NATION.  SO THEY HAVE
MADE THEIR CASE IN THIS COURT.  FN3 

IN EFFECT, THE POSITION URGES IT IS MURDER THEY HAVE DONE,  FN4  NOT
DEPRIVATION OF CONSTITUTIONAL RIGHT.  STRANGE AS THE ARGUMENT IS THE
REASON.  IT COMES TO THIS, THAT ABUSE OF STATE POWER CREATES IMMUNITY
TO FEDERAL POWER.  BECAUSE WHAT THEY DID VIOLATED THE STATE'S LAWS, THE
NATION CANNOT REACH THEIR CONDUCT.  FN5  IT MAY DEPRIVE THE CITIZEN OF
HIS LIBERTY AND HIS LIFE.  BUT WHATEVER STATE OFFICERS MAY DO IN ABUSE
OF THEIR OFFICIAL CAPACITY CAN GIVE THIS GOVERNMENT AND ITS COURTS NO
CONCERN.  THIS, THOUGH THE PRIME OBJECT OF THE FOURTEENTH AMENDMENT AND
SEC. 20 WAS TO SECURE THESE FUNDAMENTAL RIGHTS AGAINST WRONGFUL DENIAL
BY EXERCISE OF THE POWER OF THE STATES. 

THE DEFENSE IS NOT PRETTY.  NOR IS IT VALID.  BY A LONG COURSE OF
DECISION FROM EX PARTE VIRGINIA, 100 U.S. 339, TO UNITED STATES V.
CLASSIC, 313 U.S. 299, IT HAS BEEN REJECTED.  FN6  THE GROUND SHOULD
NOT NEED PLOUGHING AGAIN.  IT WAS CLEARED LONG AGO AND THOROUGHLY.  IT
HAS BEEN KEPT CLEAR, UNTIL THE ANCIENT DOUBT, LAID IN THE BEGINNING,
WAS RESURRECTED IN THE LAST STAGE OF THIS CASE.  THE EVIDENCE HAS
NULLIFIED ANY PRETENSE THAT PETITIONERS ACTED AS INDIVIDUALS, ABOUT
THEIR PERSONAL THOUGH NEFARIOUS BUSINESS.  THEY USED THE POWER OF
OFFICIAL PLACE IN ALL THAT WAS DONE.  THE VERDICT HAS FORECLOSED
SEMBLANCE OF ANY CLAIM THAT ONLY PRIVATE MATTERS, NOT TOUCHING OFFICIAL
FUNCTIONS, WERE INVOLVED.  YET NEITHER WAS THE STATE'S POWER, THEY
SAY. 

THERE IS NO THIRD CATEGORY.  THE AMENDMENT AND THE LEGISLATION WERE
NOT AIMED AT RIGHTFUL STATE ACTION.  ABUSE OF STATE POWER WAS THE
TARGET.  LIMITS WERE PUT TO STATE AUTHORITY, AND STATES WERE FORBIDDEN
TO PASS THEM, BY WHATEVER AGENCY.  FN7  IT IS TOO LATE NOW, IF THERE
WERE BETTER REASON THAN EXISTS FOR DOING SO, TO QUESTION THAT IN THESE
MATTERS ABUSE BINDS THE STATE AND IS ITS ACT, WHEN DONE BY ONE TO WHOM
IT HAS GIVEN POWER TO MAKE THE ABUSE EFFECTIVE TO ACHIEVE THE FORBIDDEN
ENDS.  VAGUE IDEAS OF DUAL FEDERALISM N8, OF ULTRA VIRES DOCTRINE
IMPORTED FROM PRIVATE AGENCY, FN9  AND OF WANT OF FINALITY IN OFFICIAL
ACTION,  FN10  DO NOT NULLIFY WHAT FOUR YEARS OF CIVIL STRIFE SECURED
AND EIGHTY YEARS HAVE VERIFIED.  FOR IT WAS ABUSE OF BASIC CIVIL AND
POLITICAL RIGHTS, BY STATES AND THEIR OFFICIALS, THAT THE AMENDMENT AND
THE ENFORCING LEGISLATION WERE ADOPTED TO UPROOT. 

THE DANGER WAS NOT MERELY LEGISLATIVE OR JUDICIAL.  NOR WAS IT
THREATENED ONLY FROM THE STATE'S HIGHEST OFFICIALS.  IT WAS ABUSE BY
WHATEVER AGENCY THE STATE MIGHT INVEST WITH ITS POWER CAPABLE OF
INFLICTING THE DEPRIVATION.  IN ALL ITS FLUX, TIME MAKES SOME THINGS
AXIOMATIC.  ONE HAS BEEN THAT STATE OFFICIALS WHO VIOLATE THEIR OATHS
OF OFFICE AND FLOUT THE FUNDAMENTAL LAW ARE ANSWERABLE TO IT WHEN THEIR
MISCONDUCT BRINGS UPON THEM THE PENALTY IT AUTHORIZES AND CONGRESS HAS
PROVIDED. 

THERE COULD BE NO CLEARER VIOLATION OF THE AMENDMENT OR THE STATUTE. 
NO ACT COULD BE MORE FINAL OR COMPLETE, TO DENUDE THE VICTIM OF RIGHTS
SECURED BY THE AMENDMENT'S VERY TERMS.  THOSE RIGHTS SO DESTROYED
CANNOT BE RESTORED.  NOR COULD THE PART PLAYED BY THE STATE'S POWER IN
CAUSING THEIR DESTRUCTION BE LESSENED, THOUGH OTHER ORGANS WERE NOW TO
REPUDIATE WHAT WAS DONE.  THE STATE'S LAW MIGHT THUS BE VINDICATED.  IF
SO, THE VINDICATION COULD ONLY SUSTAIN, IT COULD NOT DETRACT FROM THE
FEDERAL POWER.  NOR COULD IT RESTORE WHAT THE FEDERAL POWER SHIELDED. 
NEITHER ACQUITTAL NOR CONVICTION, THOUGH AFFIRMED BY THE STATE'S
HIGHEST COURT, COULD RESURRECT WHAT THE WRONGFUL USE OF STATE POWER HAS
ANNIHILATED.  THERE WAS IN THIS CASE ABUSE OF STATE POWER, WHICH FOR
THE AMENDMENT'S GREAT PURPOSES WAS STATE ACTION, FINAL IN THE LAST
DEGREE, DEPRIVING THE VICTIM OF HIS LIBERTY AND HIS LIFE WITHOUT DUE
PROCESS OF LAW. 

IF THE ISSUES MADE BY THE PARTIES THEMSELVES WERE ALLOWED TO GOVERN,
THERE WOULD BE NO NEED TO SAY MORE.  AT VARIOUS STAGES PETITIONERS HAVE
SOUGHT TO SHOW THAT THEY USED NO MORE FORCE THAN WAS NECESSARY, THAT
THERE WAS NO STATE ACTION, AND THAT THE EVIDENCE WAS NOT SUFFICIENT TO
SUSTAIN THE VERDICT AND THE JUDGMENT.  THESE ISSUES, IN VARIOUS
FORMULATIONS,  FN11  HAVE COMPREHENDED THEIR CASE.  ALL HAVE BEEN
RESOLVED AGAINST THEM WITHOUT ERROR.  THIS SHOULD END THE MATTER. 

II 

BUT OTHER AND MOST IMPORTANT ISSUES HAVE BEEN INJECTED AND MADE
DECISIVE TO REVERSE THE JUDGMENT.  PETITIONERS HAVE NOT DENIED THAT
THEY ACTED "WILLFULLY" WITHIN THE MEANING OF SEC. 20 OR THAT THEY
INTENDED TO DO THE ACTS WHICH TOOK THEIR VICTIM'S LIBERTY AND LIFE.  IN
THE TRIAL COURT THEY CLAIMED JUSTIFICATION.  BUT THEY WERE UNABLE TO
PROVE IT.  THE VERDICT, ON OVERWHELMING EVIDENCE, HAS CONCLUDED AGAINST
THEM THEIR DENIAL OF BAD PURPOSE AND RECKLESS DISREGARD OF RIGHTS. 
THIS IS NECESSARILY IMPLIED IN THE FINDING THAT EXCESSIVE FORCE WAS
USED.  NO COMPLAINT WAS MADE OF THE CHARGE IN ANY OF THESE RESPECTS AND
NO REQUEST FOR ADDITIONAL CHARGES CONCERNING THEM WAS OFFERED.  NOR, IN
THE APPLICATION FOR CERTIORARI OR THE BRIEFS, HAVE THEY RAISED
QUESTIONS OF THE REQUISITE CRIMINAL INTENT OR OF UNCONSTITUTIONAL
VAGUENESS IN THE STATUTE'S DEFINITION OF THE CRIME.  HOWEVER, THESE
ISSUES HAVE BEEN BROUGHT FORWARD, SO FAR AS THE RECORD DISCLOSES, FIRST
BY THE DISSENTING OPINION IN THE COURT OF APPEALS, THEN BY INQUIRY AT
THE ARGUMENT AND IN THE DISPOSITION HERE. 

THE STORY WOULD BE TOO LONG, TO TRACE IN MORE THAN OUTLINE THE
HISTORY OF SEC. 20 AND COMPANION PROVISIONS, IN PARTICULAR SEC. 19,
FN12  WITH WHICH IT MUST BE CONSIDERED ON ANY SUGGESTION OF FATAL
AMBIGUITY.  BUT THIS HISTORY CANNOT BE IGNORED, UNLESS WE WOULD RISK
THROWING OVERBOARD WHAT THE NATION'S GREATEST INTERNAL CONFLICT CREATED
AND EIGHT DECADES HAVE CONFIRMED, IN PROTECTION OF INDIVIDUAL RIGHTS
AGAINST IMPAIRMENT BY THE STATES. 

QUESTION OF VAGUENESS IN DEFINING THE CRIMES.  THERE ARE IMPORTANT
DIFFERENCES.  SECTION 19 STRIKES AT CONSPIRACIES, SEC. 20 AT
SUBSTANTIVE OFFENSES.  THE FORMER PROTECTS "CITIZENS," THE LATTER
"INHABITANTS."  THERE ARE, HOWEVER, NO DIFFERENCES IN THE BASIC RIGHTS
GUARDED.  EACH PROTECTS IN A DIFFERENT WAY THE RIGHTS AND PRIVILEGES
SECURED TO INDIVIDUALS BY THE CONSTITUTION.  IF ONE FALLS FOR VAGUENESS
IN POINTING TO THESE, THE OTHER ALSO MUST FALL FOR THE SAME REASON.  IF
ONE STANDS, SO MUST BOTH.  IT IS NOT ONE STATUTE THEREFORE WHICH WE
SUSTAIN OR NULLIFY.  IT IS TWO. 

THE SECTIONS HAVE STOOD FOR NEARLY EIGHTY YEARS.  NOR HAS THIS BEEN
WITHOUT ATTACK FOR AMBIGUITY.  TOGETHER THE TWO SECTIONS HAVE REPELLED
IT.  IN 1915, ONE OF THIS COURT'S GREATEST JUDGES, SPEAKING FOR IT,
SUMMARILY DISPOSED OF THE SUGGESTION THAT SEC. 19 IS INVALID:  "IT IS
NOT OPEN TO QUESTION THAT THIS STATUTE IS CONSTITUTIONAL  ...  (IT)
DEALT WITH FEDERAL RIGHTS AND WITH ALL FEDERAL RIGHTS, AND PROTECTED
THEM IN THE LUMP  ..."  UNITED STATES V. MOSLEY, 238 U.S. 383, 386,
387.  AND IN UNITED STATES V. CLASSIC, 313 U.S. 299, THE COURT WITH
EQUAL VIGOR REAFFIRMED THE VALIDITY OF BOTH SECTIONS, AGAINST
DISSENTING ASSAULT FOR FATAL AMBIGUITY IN RELATION TO THE
CONSTITUTIONAL RIGHTS THEN IN QUESTION.  THESE MORE RECENT
PRONOUNCEMENTS BUT REAFFIRMED EARLIER AND REPEATED ONES.  THE HISTORY
SHOULD NOT REQUIRE RETELLING.  BUT OLD AND ESTABLISHED FREEDOMS VANISH
WHEN HISTORY IS FORGOTTEN. 

SEC. 19 IN THE ENFORCEMENT ACT OF 1870(16 STAT. 141, SEC. 6).  THEIR
GREAT ORIGINAL PURPOSE WAS TO STRIKE AT DISCRIMINATION, PARTICULARLY
AGAINST NEGROES, THE ONE SECURING CIVIL, THE OTHER POLITICAL RIGHTS. 
BUT THEY WERE NOT DRAWN SO NARROWLY.  FROM THE BEGINNING SEC. 19
PROTECTED ALL "CITIZENS," SEC. 20 "INHABITANTS." 

AT FIRST SEC. 20 SECURED ONLY RIGHTS ENUMERATED IN THE CIVIL RIGHTS
ACT.  THE FIRST TEN YEARS BROUGHT IT, THROUGH BROADENING CHANGES, TO
SUBSTANTIALLY ITS PRESENT FORM.  ONLY THE WORD "WILLFULLY" HAS BEEN
ADDED SINCE THEN, A CHANGE OF NO MATERIALITY, FOR THE STATUTE IMPLIED
IT BEFOREHAND.  FN13  35 STAT. 1092.  THE MOST IMPORTANT CHANGE OF THE
FIRST DECADE REPLACED THE SPECIFIC ENUMERATION OF THE CIVIL RIGHTS ACT
WITH THE PRESENT BROAD LANGUAGE COVERING "THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES, SECURED OR PROTECTED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES."  R.S. SEC. 5510.  THIS
INCLUSIVE DESIGNATION BROUGHT SEC. 20 INTO CONFORMITY WITH SEC. 19'S
ORIGINAL COVERAGE OF "ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES."  SINCE THEN, UNDER THESE
GENERIC DESIGNATIONS, THE TWO HAVE BEEN LITERALLY IDENTICAL IN THE
SCOPE OF THE RIGHTS THEY SECURE.  THE SLIGHT DIFFERENCE IN WORDING
CANNOT BE ONE OF SUBSTANCE.  FN14 

THROUGHOUT A LONG AND VARIED COURSE OF APPLICATION THE SECTIONS HAVE
REMAINED UNIMPAIRED ON THE SCORE OF VAGUENESS IN THE CRIMES THEY
DENOUNCE.  FROM 1874 TO TODAY THEY HAVE REPELLED ALL ATTACKS PROPOSED
TO INVALIDATE THEM.  NONE HAS SUCCEEDED.  IF TIME AND UNIFORM DECISION
CAN GIVE STABILITY TO STATUTES, THESE HAVE ACQUIRED IT. 

RECENTLY.  THERE WERE HOWEVER A NUMBER OF EARLY DECISIONS.  FN15  OF
LATE THE SECTION HAS BEEN APPLIED MORE FREQUENTLY, IN CONSIDERABLE
VARIETY OF SITUATION, AGAINST VARIED AND VIGOROUS ATTACK.  FN16  IN
UNITED STATES V. CLASSIC, 313 U.S. AT 321, AS HAS BEEN STATED, THIS
COURT GAVE IT CLEAR-CUT SANCTION.  THE OPINION EXPRESSLY REPUDIATED ANY
IDEA THAT THE SECTION, OR SEC. 19, IS VITIATED BY AMBIGUITY.  MOREOVER,
THIS WAS DONE IN TERMS WHICH LEAVE NO ROOM TO SAY THAT THE DECISION WAS
NOT FOCUSED UPON THAT QUESTION.  FN17  TRUE, APPLICATION TO FOURTEENTH
AMENDMENT RIGHTS WAS RESERVED BECAUSE THE QUESTION WAS RAISED FOR THE
FIRST TIME IN THE GOVERNMENT'S BRIEF FILED HERE.  313 U.S. AT 329.  BUT
THE STATUTE WAS SUSTAINED IN APPLICATION TO A VAST RANGE OF RIGHTS
SECURED BY THE CONSTITUTION, APART FROM THE RESERVED SEGMENT, AS THE
OPINION'S LANGUAGE AND THE SINGLE RESERVATION ITSELF ATTEST.  THE
RULING, THUS BROAD, COULD NOT HAVE BEEN INADVERTENT.  FOR IT WAS
REPEATED CONCERNING BOTH SECTIONS, BROADLY, FORCEFULLY, AND UPON
CITATION OF LONG-ESTABLISHED AUTHORITY.  AND THIS WAS DONE IN RESPONSE
TO A VIGOROUS DISSENT WHICH MADE THE MOST OF THE POINT OF VAGUENESS. 
FN18  THE POINT WAS FLATLY, AND DELIBERATELY, REJECTED.  THE COURT
COULD NOT HAVE BEEN BLINDED BY OTHER ISSUES TO THE IMPORT OF THIS ONE. 
THE CLASSIC DECISION THUS CANNOT BE PUT ASIDE IN THIS CASE.  NOR CAN
IT BE DEMONSTRATED THAT THE RIGHTS SECURED BY THE FOURTEENTH AMENDMENT
ARE MORE NUMEROUS OR MORE DUBIOUS THAN THE AGGREGATE ENCOMPASSED BY
OTHER CONSTITUTIONAL PROVISIONS.  CERTAINLY "THE EQUAL PROTECTION OF
THE LAWS," GUARANTEED BY THE AMENDMENT, IS NOT MORE VAGUE AND
INDEFINITE THAN MANY RIGHTS PROTECTED BY OTHER COMMANDS.  FN19  THE
SAME THING IS TRUE OF "THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE
UNITED STATES."  THE FIFTH AMENDMENT CONTAINS A DUE PROCESS CLAUSE AS
BROAD IN ITS TERMS RESTRICTING NATIONAL POWER AS THE FOURTEENTH IS OF
STATE POWER.  FN20  IF SEC. 20(WITH SEC. 19) IS VALID IN GENERAL
COVERAGE OF OTHER CONSTITUTIONAL RIGHTS, IT CANNOT BE VOID IN THE LESS
SWEEPING APPLICATION TO FOURTEENTH AMENDMENT RIGHTS.  IF IT IS VALID TO
ASSURE THE RIGHTS "PLAINLY AND DIRECTLY" SECURED BY OTHER PROVISIONS,
IT IS EQUALLY VALID TO PROTECT THOSE "PLAINLY AND DIRECTLY" SECURED BY
THE FOURTEENTH AMENDMENT, INCLUDING THE EXPRESSLY GUARANTEED RIGHTS NOT
TO BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF
LAW.  IF IN FACT THERE COULD BE ANY DIFFERENCE AMONG THE VARIOUS RIGHTS
PROTECTED, IN VIEW OF THE HISTORY IT WOULD BE THAT THE SECTION APPLIES
MORE CLEARLY TO FOURTEENTH AMENDMENT RIGHTS THAN TO OTHERS.  ITS
PHRASES "ARE ALL PHRASES OF LARGE GENERALITIES.  BUT THEY ARE NOT
GENERALITIES OF UNILLUMINED VAGUENESS; THEY ARE GENERALITIES
CIRCUMSCRIBED BY HISTORY AND APPROPRIATE TO THE LARGENESS OF THE
PROBLEMS OF GOVERNMENT WITH WHICH THEY WERE CONCERNED."  MALINSKI V.
NEW YORK, 324 U.S. 401, CONCURRING OPINION, P. 413. 

HISTORICALLY, THE SECTION'S FUNCTION AND PURPOSE HAVE BEEN TO SECURE
RIGHTS GIVEN BY THE AMENDMENT.  FROM THE AMENDMENT'S ADOPTION UNTIL
1874, IT WAS FOURTEENTH AMENDMENT LEGISLATION.  SURELY WHEN IN THAT
YEAR THE SECTION WAS EXPANDED TO INCLUDE OTHER RIGHTS THESE WERE NOT
DROPPED OUT.  BY GIVING THE CITIZEN ADDITIONAL SECURITY IN THE EXERCISE
OF HIS VOTING AND OTHER POLITICAL RIGHTS, WHICH WAS THE SECTION'S
EFFECT, UNLESS THE CLASSIC CASE FALLS, CONGRESS DID NOT TAKE FROM HIM
THE PROTECTION IT PREVIOUSLY AFFORDED (WHOLLY APART FROM THE
PROHIBITION OF DIFFERENT PENALTIES)  FN21  AGAINST DEPRIVATION OF SUCH
RIGHTS ON ACCOUNT OF RACE, COLOR OR PREVIOUS CONDITION OF SERVITUDE, OR
REPEAL THE PRIOR SAFEGUARD OF CIVIL RIGHTS. 

TO STRIKE FROM THE STATUTE THE RIGHTS SECURED BY THE FOURTEENTH
AMENDMENT, BUT AT THE SAME TIME TO LEAVE WITHIN ITS COVERAGE THE VAST
AREA BOUNDED BY OTHER CONSTITUTIONAL PROVISIONS, WOULD CONTRADICT BOTH
REASON AND HISTORY.  NO LOGIC BUT ONE WHICH NULLIFIES THE HISTORIC
FOUNDATIONS OF THE AMENDMENT AND THE SECTION COULD SUPPORT SUCH AN
EMASCULATION.  THERE SHOULD BE NO JUDICIAL HACK WORK CUTTING OUT SOME
OF THE GREAT RIGHTS THE AMENDMENT SECURES BUT LEAVING IN OTHERS.  THERE
CAN BE NONE EXCISING ALL PROTECTED BY THE AMENDMENT, BUT LEAVING EVERY
OTHER GIVEN BY THE CONSTITUTION INTACT UNDER THE STATUTE'S AEGIS. 

ALL THAT HAS BEEN SAID OF SEC. 20 APPLIES WITH EQUAL FORCE TO SEC.
19.  IT HAD AN EARLIER MORE LITIGIOUS HISTORY, FIRMLY ESTABLISHING ITS
VALIDITY.  FN22  IT ALSO HAS RECEIVED RECENT APPLICATION N23, WITHOUT
QUESTION FOR AMBIGUITY EXCEPT IN THE CLASSIC CASE, WHICH NEVERTHELESS
GAVE IT EQUAL SANCTION WITH ITS SUBSTANTIVE COUNTERPART. 

SEPARATELY, AND OFTEN TOGETHER IN APPLICATION, SECS. 19 AND 20 HAVE
BEEN WOVEN INTO OUR FUNDAMENTAL AND STATUTORY LAW.  THEY HAVE PLACE
AMONG OUR MORE PERMANENT LEGAL ACHIEVEMENTS.  THEY HAVE SAFEGUARDED
MANY RIGHTS AND PRIVILEGES APART FROM POLITICAL ONES.  AMONG THOSE
BUTTRESSED, EITHER BY DIRECT APPLICATION OR THROUGH THE GENERAL
CONSPIRACY STATUTE, SEC. 37(18 U.S.C. SEC. 88),  FN24  ARE THE RIGHTS
TO A FAIR TRIAL, INCLUDING FREEDOM FROM SHAM TRIALS; TO BE FREE FROM
ARREST AND DETENTION BY METHODS CONSTITUTIONALLY FORBIDDEN AND FROM
EXTORTION OF PROPERTY BY SUCH METHODS; FROM EXTORTION OF CONFESSIONS;
FROM MOB ACTION INCITED OR SHARED BY STATE OFFICERS; FROM FAILURE TO
FURNISH POLICE PROTECTION ON PROPER OCCASION AND DEMAND; FROM
INTERFERENCE WITH THE FREE EXERCISE OF RELIGION, FREEDOM OF THE PRESS,
FREEDOM OF SPEECH AND ASSEMBLY; FN25  AND THE NECESSARY IMPORT OF THE
DECISIONS IS THAT THE RIGHT TO BE FREE FROM DEPRIVATION OF LIFE ITSELF,
WITHOUT DUE PROCESS OF LAW, THAT IS, THROUGH ABUSE OF STATE POWER BY
STATE OFFICIALS, IS AS FULLY PROTECTED AS OTHER RIGHTS SO SECURED. 

SO MUCH EXPERIENCE CANNOT BE SWEPT ASIDE, OR ITS TEACHING ANNULLED,
WITHOUT OVERTHROWING A GREAT, AND A FIRMLY ESTABLISHED, CONSTITUTIONAL
TRADITION.  NOR HAS THE FEARED WELTER OF UNCERTAINTY ARISEN. 
DEFENDANTS HAVE ATTACKED THE SECTIONS, OR THEIR APPLICATION, OFTEN AND
STRENUOUSLY.  SELDOM HAS COMPLAINT BEEN MADE THAT THEY ARE TOO VAGUE
AND UNCERTAIN.  OBJECTIONS HAVE CENTERED PRINCIPALLY ABOUT "STATE
ACTION," INCLUDING "COLOR OF LAW" AND FAILURE BY INACTION TO DISCHARGE
OFFICIAL DUTY, CF. CATLETTE V. UNITED STATES, 132 F.2D 902, AND ABOUT
THE STRENGTH OF FEDERAL POWER TO REACH PARTICULAR ABUSES.  FN26  MORE
RARELY THEY HAVE TOUCHED OTHER MATTERS, SUCH AS THE LIMITING EFFECT OF
OFFICIAL PRIVILEGE  FN27  AND, IN OCCASIONAL INSTANCES, MENS RED.  FN28
IN ALL THIS WEALTH OF ATTACK ACCUSED OFFICIALS HAVE LITTLE USED THE
SHIELD OF AMBIGUITY.  THE OMISSION, LIKE THE COURT'S REJECTION IN THE
CLASSIC CASE, CANNOT HAVE BEEN INADVERTENT.  THERE ARE VALID REASONS
FOR IT, APART FROM THE OLD TEACHING THAT THE MATTER HAS BEEN
FORECLOSED. 

ONE IS THAT THE GENERALITY OF THE SECTION'S TERMS SIMPLY HAS NOT
WORKED OUT TO BE A HAZARD OF UNCONSTITUTIONAL, OR EVEN SERIOUS,
PROPORTIONS.  IT HAS NOT PROVED A SOURCE OF PRACTICAL DIFFICULTY.  IN
NO OTHER WAY CAN BE EXPLAINED THE PAUCITY OF THE OBJECTION'S APPEARANCE
IN THE WEALTH OF OTHERS MADE.  IF EXPERIENCE IS THE LIFE OF THE LAW, AS
HAS BEEN SAID, THIS HAS BEEN TRUE PREEMINENTLY IN THE APPLICATION OF
SECS. 19 AND 20. 

MOREOVER, STATUTORY SPECIFICITY HAS TWO PURPOSES, TO GIVE DUE NOTICE
THAT AN ACT HAS BEEN MADE CRIMINAL BEFORE IT IS DONE AND TO INFORM ONE
ACCUSED OF THE NATURE OF THE OFFENSE CHARGED, SO THAT HE MAY ADEQUATELY
PREPARE AND MAKE HIS DEFENSE.  MORE THAN THIS CERTAINLY THE
CONSTITUTION DOES NOT REQUIRE.  CF. AMEND. VI.  ALL DIFFICULTY ON THE
LATTER SCORE VANISHES, UNDER SEC. 20, WITH THE INDICTMENT'S
PARTICULARIZATION OF THE RIGHTS INFRINGED AND THE ACTS INFRINGING
THEM.  IF IT IS NOT SUFFICIENT IN EITHER RESPECT, IN THESE AS IN OTHER
CASES THE MOTION TO QUASH OR ONE FOR A BILL OF PARTICULARS IS AT THE
DEFENDANT'S DISPOSAL.  THE DECIDED CASES DEMONSTRATE THAT ACCUSED
PERSONS HAVE HAD LITTLE OR NO DIFFICULTY TO ASCERTAIN THE RIGHTS THEY
HAVE BEEN CHARGED WITH TRANSGRESSING OR THE ACTS OF TRANSGRESSION N29. 
SO IT WAS WITH THE DEFENDANTS IN THIS CASE.  THEY WERE NOT PUZZLED TO
KNOW FOR WHAT THEY WERE INDICTED, AS THEIR PROOF AND THEIR DEFENSE UPON
THE LAW CONCLUSIVELY SHOW.  THEY SIMPLY MISCONCEIVED THAT THE VICTIM
HAD NO FEDERAL RIGHTS AND THAT WHAT THEY HAD DONE WAS NOT A CRIME
WITHIN THE FEDERAL POWER TO PENALIZE.  FN30  THAT KIND OF ERROR
RELIEVES NO ONE FROM PENALTY. 

IN THE OTHER ASPECT OF SPECIFICITY, TWO ANSWERS, APART FROM
EXPERIENCE, SUFFICE.  ONE IS THAT SEC. 20, AND SEC. 19, ARE NO MORE
GENERAL AND VAGUE, FOURTEENTH AMENDMENT RIGHTS INCLUDED, THAN OTHER
CRIMINAL STATUTES COMMONLY ENFORCED AGAINST THIS OBJECTION.  THE
SHERMAN ACT IS THE MOST OBVIOUS ILLUSTRATION.  FN31 

FURTHERMORE, THE ARGUMENT OF VAGUENESS, TO WARN MEN OF THEIR CONDUCT,
IGNORES THE NATURE OF THE CRIMINAL ACT ITSELF AND THE NOTICE
NECESSARILY GIVEN FROM THIS.  SECTION 20 STRIKES ONLY AT ABUSE OF
OFFICIAL FUNCTIONS BY STATE OFFICERS.  IT DOES NOT REACH OUT FOR CRIMES
DONE BY MEN IN GENERAL.  NOT MURDER PER SE, BUT MURDER BY STATE
OFFICERS IN THE COURSE OF OFFICIAL CONDUCT AND DONE WITH THE AID OF
STATE POWER, IS OUTLAWED.  THESE FACTS, INHERENT IN THE CRIME, GIVE ALL
THE WARNING CONSTITUTIONALLY REQUIRED.  FOR ONE, SO SITUATED, WHO GOES
SO FAR IN MISCONDUCT CAN HAVE NO EXCUSE OF INNOCENCE OR IGNORANCE. 

GENERALLY STATE OFFICIALS KNOW SOMETHING OF THE INDIVIDUAL'S BASIC
LEGAL RIGHTS.  IF THEY DO NOT, THEY SHOULD, FOR THEY ASSUME THAT DUTY
WHEN THEY ASSUME THEIR OFFICE.  IGNORANCE OF THE LAW IS NO EXCUSE FOR
MEN IN GENERAL.  IT IS LESS AN EXCUSE FOR MEN WHOSE SPECIAL DUTY IS TO
APPLY IT, AND THEREFORE TO KNOW AND OBSERVE IT.  IF THEIR KNOWLEDGE IS
NOT COMPREHENSIVE, STATE OFFICIALS KNOW OR SHOULD KNOW WHEN THEY PASS
THE LIMITS OF THEIR AUTHORITY, SO FAR AT ANY RATE THAT THEIR ACTION
EXCEEDS HONEST ERROR OF JUDGMENT AND AMOUNTS TO ABUSE OF THEIR OFFICE
AND ITS FUNCTION.  WHEN THEY ENTER SUCH A DOMAIN IN DEALING WITH THE
CITIZEN'S RIGHTS, THEY SHOULD DO SO AT THEIR PERIL, WHETHER THAT BE
CREATED BY STATE OR FEDERAL LAW.  FOR THEIR SWORN OATH AND THEIR FIRST
DUTY ARE TO UPHOLD THE CONSTITUTION, THEN ONLY THE LAW OF THE STATE
WHICH TOO IS BOUND BY THE CHARTER.  SINCE THE STATUTE, AS I THINK,
CONDEMNS ONLY SOMETHING MORE THAN ERROR OF JUDGMENT, MADE IN HONEST
EFFORT AT ONCE TO APPLY AND TO FOLLOW THE LAW, CF. UNITED STATES V.
MURDOCK, 290 U.S. 389, OFFICIALS WHO VIOLATE IT MUST ACT IN INTENTIONAL
OR RECKLESS DISREGARD OF INDIVIDUAL RIGHTS AND CANNOT BE IGNORANT THAT
THEY DO GREAT WRONG.  FN32  THIS BEING TRUE, THEY MUST BE TAKEN TO ACT
AT PERIL OF INCURRING THE PENALTY PLACED UPON SUCH CONDUCT BY THE
FEDERAL LAW, AS THEY DO OF THAT THE STATE IMPOSES. 

WHAT HAS BEEN SAID SUPPLIES ALL THE CASE REQUIRES TO BE DECIDED ON
THE QUESTION OF CRIMINAL INTENT.  IF THE CRIMINAL ACT IS LIMITED, AS I
THINK IT MUST BE AND THE STATUTE INTENDS, TO INFRACTION OF
CONSTITUTIONAL RIGHTS, INCLUDING RIGHTS SECURED BY THE FOURTEENTH
AMENDMENT, BY CONDUCT WHICH AMOUNTS TO ABUSE OF ONE'S OFFICIAL PLACE OR
RECKLESS DISREGARD OF DUTY, NO UNDUE HAZARD OR BURDEN CAN BE PLACED ON
STATE OFFICIALS HONESTLY SEEKING TO PERFORM THE RIGHTFUL FUNCTIONS OF
THEIR OFFICE.  OTHERS ARE NOT ENTITLED TO GREATER PROTECTION. 

BUT, IT IS SAID, A PENUMBRA OF RIGHTS MAY BE INVOLVED, WHICH NONE CAN
KNOW UNTIL DECISION HAS BEEN MADE AND INFRACTION MAY OCCUR BEFORE IT IS
HAD.  IT SEEMS DOUBTFUL THIS COULD BE TRUE IN ANY CASE INVOLVING THE
ABUSE OF OFFICIAL FUNCTION WHICH THE STATUTE REQUIRES AND, IF IT COULD,
THAT ONE GUILTY OF SUCH AN ABUSE SHOULD HAVE IMMUNITY FOR THAT REASON. 
FURTHERMORE, THE DOUBTFUL CHARACTER OF THE RIGHT INFRINGED COULD GIVE
REASON AT THE MOST TO INVALIDATE THE PARTICULAR CHARGE, NOT FOR
OUTLAWING THE STATUTE OR NARROWLY RESTRICTING ITS APPLICATION IN
ADVANCE OF COMPELLING OCCASION. 

FOR THERE IS A BODY OF WELL-ESTABLISHED, CLEAR-CUT FUNDAMENTAL
RIGHTS, INCLUDING MANY SECURED BY THE FOURTEENTH AMENDMENT, TO ALL OF
WHICH THE SECTIONS MAY AND DO APPLY, WITHOUT SPECIFIC ENUMERATION AND
WITHOUT CREATING HAZARDS OF UNCERTAINTY FOR CONDUCT OR DEFENSE.  OTHERS
WILL ENTER THAT CATEGORY.  SO FAR, AT THE LEAST WHEN THEY HAVE DONE SO,
THE SECTIONS SHOULD STAND WITHOUT QUESTION OF THEIR VALIDITY.  BEYOND
THIS, THE CHARACTER OF THE ACT PROSCRIBED AND THE INTENT IT NECESSARILY
IMPLIES WOULD SEEM TO AFFORD WOULD-BE VIOLATORS ALL OF NOTICE THE LAW
REQUIRES, THAT THEY ACT AT PERIL OF THE PENALTY IT PLACES ON THEIR
MISCONDUCT. 

WE HAVE IN THIS CASE NO INSTANCE OF MERE ERROR IN JUDGMENT, MADE IN
GOOD FAITH.  IT WOULD BE TIME ENOUGH TO REVERSE AND REMAND A
CONVICTION, OBTAINED WITHOUT INSTRUCTIONS ALONG THESE LINES, IF SUCH A
CASE SHOULD ARISE.  ACTUALLY THE SUBSTANCE OF SUCH INSTRUCTION WAS
GIVEN IN THE WHOLLY ADEQUATE CHARGE CONCERNING THE OFFICER'S RIGHT TO
USE FORCE, THOUGH NOT TO EXCESS.  WHEN, AS HERE, A STATE OFFICIAL
ABUSES HIS PLACE CONSCIOUSLY OR GROSSLY IN ABNEGATION OF ITS RIGHTFUL
OBLIGATION, AND THEREBY TRAMPLES UNDERFOOT THE ESTABLISHED
CONSTITUTIONAL RIGHTS OF MEN OR CITIZENS, HIS CONVICTION SHOULD STAND
WHEN HE HAS HAD THE FAIR TRIAL AND FULL DEFENSE THE PETITIONERS HAVE
BEEN GIVEN IN THIS CASE. 

                                  III 

TWO IMPLICIT BUT HIGHLY IMPORTANT CONSIDERATIONS MUST BE NOTICED MORE
DEFINITELY.  ONE IS THE FEAR GROUNDED IN CONCERN FOR POSSIBLE
MALADJUSTMENT OF FEDERAL-STATE RELATIONS IF THIS AND LIKE CONVICTIONS
ARE SUSTAINED.  ENOUGH HAS BEEN SAID TO SHOW THAT THE FEAR IS NOT WELL
GROUNDED.  THE SAME FEAR WAS EXPRESSED, BY SOME IN EXAGGERATED AND
HIGHLY EMOTIONAL TERMS, WHEN SEC. 2 OF THE CIVIL RIGHTS ACT, THE
ANTECEDENT OF SEC. 20, WAS UNDER DEBATE IN CONGRESS.  FN33  THE HISTORY
OF THE LEGISLATION'S ENFORCEMENT GIVES IT NO SUPPORT.  THE FEAR WAS NOT
REALIZED IN LATER EXPERIENCE.  EIGHTY YEARS SHOULD BE ENOUGH TO REMOVE
ANY REMAINING VESTIGE.  THE VOLUME OF PROSECUTIONS AND CONVICTIONS HAS
BEEN SMALL, IN VIEW OF THE IMPORTANCE OF THE SUBJECT MATTER AND THE
LENGTH OF TIME THE STATUTES HAVE BEEN IN FORCE.  THERE ARE REASONS FOR
THIS, APART FROM SELF-RESTRAINT OF FEDERAL PROSECUTING OFFICIALS. 

ONE LIES IN THE CHARACTER OF THE CRIMINAL ACT AND THE INTENT WHICH
MUST BE PROVED.  A STRONG CASE MUST BE MADE TO SHOW ABUSE OF OFFICIAL
FUNCTION, AND THEREFORE TO SECURE INDICTMENT OR CONVICTION.  TRIAL MUST
BE "BY AN IMPARTIAL JURY OF THE STATE AND THE DISTRICT WHEREIN THE
CRIME SHALL HAVE BEEN COMMITTED."  CONST., AMEND. VI; CF. ART. III,
SEC. 2.  FOR ALL PRACTICAL PURPOSES THIS MEANS WITHIN THE STATE OF
WHICH THE ACCUSED IS AN OFFICER.  CITIZENS OF THE STATE HAVE NOT BEEN,
AND WILL NOT BE, READY TO INDICT OR CONVICT THEIR LOCAL OFFICERS ON
GROUNDLESS CHARGES OR IN DOUBTFUL CASES.  THE SECTIONS CAN BE APPLIED
EFFECTIVELY ONLY WHEN TWELVE OF THEM CONCUR IN A VERDICT WHICH ACCORDS
WITH THE PROSECUTING OFFICIAL'S BELIEF THAT THE ACCUSED HAS VIOLATED
ANOTHER'S FUNDAMENTAL RIGHTS.  A FEDERAL OFFICIAL THEREFORE FACES BOTH
A DELICATE AND A DIFFICULT TASK WHEN HE UNDERTAKES TO CHARGE AND TRY A
STATE OFFICER UNDER THE TERMS OF SECS. 19 AND 20.  THE RESTRAINT WHICH
HAS BEEN SHOWN IS AS MUCH ENFORCED BY THESE LIMITATIONS AS IT HAS BEEN
VOLUNTARY.    THESE ARE THE REASONS WHY PROSECUTION HAS NOT BEEN
FREQUENT, HAS BEEN BROUGHT ONLY IN CASES OF GROSS ABUSE, AND THEREFORE
HAS PRODUCED NO GRAVE OR SUBSTANTIAL PROBLEM OF INTERFERENCE BY FEDERAL
AUTHORITY IN STATE AFFAIRS.  BUT IF THE PROBLEM IN THIS PHASE OF THE
CASE WERE MORE SERIOUS THAN IT HAS BEEN OR IS LIKELY TO BE, THE RESULT
LEGALLY COULD NOT BE TO GIVE STATE OFFICIALS IMMUNITY FROM THE
OBLIGATIONS AND LIABILITIES THE AMENDMENT AND ITS SUPPORTING
LEGISLATION HAVE IMPOSED.  FOR THE VERDICT OF THE STRUGGLE WHICH
BROUGHT ABOUT ADOPTION OF THE AMENDMENT WAS TO THE CONTRARY. 

LYING BENEATH ALL THE SURFACE ARGUMENTS IS A DEEPER IMPLICATION,
WHICH COMPREHENDS THEM.  IT GOES TO FEDERAL POWER.  IT IS THAT CONGRESS
COULD NOT IN SO MANY WORDS DENOUNCE AS A FEDERAL CRIME THE INTENTIONAL
AND WRONGFUL TAKING OF AN INDIVIDUAL'S LIFE OR LIBERTY BY A STATE
OFFICIAL ACTING IN ABUSE OF HIS OFFICIAL FUNCTION AND APPLYING TO THE
DEED ALL THE POWER OF HIS OFFICE.  THIS IS THE ULTIMATE PURPORT OF THE
NOTIONS THAT STATE ACTION IS NOT INVOLVED AND THAT THE CRIME IS AGAINST
THE STATE ALONE, NOT THE NATION.  IT IS REFLECTED ALSO IN THE IDEA THAT
THE STATUTE CAN PROTECT THE VICTIM IN HIS MANY PROCEDURAL RIGHTS
ENCOMPASSED IN THE RIGHT TO A FAIR TRIAL BEFORE CONDEMNATION, BUT
CANNOT PROTECT HIM IN THE RIGHT WHICH COMPREHENDS ALL OTHERS, THE RIGHT
TO LIFE ITSELF. 

SUFFICE IT TO SAY THAT IF THESE IDEAS DID NOT PASS FROM THE AMERICAN
SCENE ONCE AND FOR ALL, AS I THINK THEY DID, UPON ADOPTION OF THE
AMENDMENT WITHOUT MORE, THEY HAVE LONG SINCE DONE SO. VIOLATION OF
STATE LAW THERE MAY BE.  BUT FROM THIS NO IMMUNITY TO FEDERAL AUTHORITY
CAN ARISE WHERE ANY PART OF THE CONSTITUTION HAS MADE IT SUPREME.  TO
THE CONSTITUTION STATE OFFICIALS AND THE STATES THEMSELVES OWE FIRST
OBLIGATION.  THE FEDERAL POWER LACKS NO STRENGTH TO REACH THEIR
MALFEASANCE IN OFFICE WHEN IT INFRINGES CONSTITUTIONAL RIGHTS.  IF THAT
IS A GREAT POWER, IT IS ONE GENERATED BY THE CONSTITUTION AND THE
AMENDMENTS, TO WHICH THE STATES HAVE ASSENTED AND THEIR OFFICIALS OWE
PRIME ALLEGIANCE.  FN34 

THE RIGHT NOT TO BE DEPRIVED OF LIFE OR LIBERTY BY A STATE OFFICER
WHO TAKES IT BY ABUSE OF HIS OFFICE AND ITS POWER IS SUCH A RIGHT.  TO
SECURE THESE RIGHTS IS NOT BEYOND FEDERAL POWER.  THIS SECS. 19 AND 20
HAVE DONE, IN A MANNER HISTORY LONG SINCE HAS VALIDATED. 

ACCORDINGLY, I WOULD AFFIRM THE JUDGMENT. 

FN1  THE EVIDENCE WAS CONFLICTING WHETHER THE WARRANT WAS MADE OUT
AND ISSUED BEFORE, OR AFTER, THE ARREST AND KILLING, AND IF ISSUED
BEFOREHAND, WHETHER IT WAS VALID.  THE COURT OF APPEALS NOTED THERE WAS
EVIDENCE "THAT THE ALLEGED WARRANT OF ARREST WAS PREPARED BY THE
SHERIFF AND WAS A SPURIOUS AFTERTHOUGHT" (140 F.2D AT 665), BUT ASSUMED
IN THE PETITIONER'S FAVOR THAT A VALID WARRANT HAD BEEN ISSUED.  THE
DISSENTING OPINION SAID THE VICTIM'S SHOTGUN WAS TAKEN FROM HIS HOME
"NOT IN A SEARCH OF HIS PERSON BUT APPARENTLY WITHOUT LAWFUL WARRANT." 
140 F.2D AT 667. 

FN2  THE CRUCIAL DISPUTE OF FACT WAS OVER WHETHER THE DEFENDANTS HAD
USED MORE FORCE THAN WAS NECESSARY TO RESTRAIN THE PRISONER.  THE
"OVERWHELMING WEIGHT OF THE TESTIMONY" (140 F.2D AT 665) WAS THAT THEY
USED NOT ONLY ALL FORCE REQUIRED TO SUBDUE HIM (IF IT IS ASSUMED HE
RESISTED), BUT CONTINUED TO BEAT HIM FOR FIFTEEN TO THIRTY MINUTES
AFTER HE WAS KNOCKED TO THE GROUND. 

FN3  CF. PART II INFRA. 

FN4  THE DISSENTING JUDGE IN THE COURT OF APPEALS THOUGHT THE LOCAL
OFFENSE WAS NOT "WILFUL MURDER, BUT RATHER THAT IT WAS INVOLUNTARY
MANSLAUGHTER IN THE COMMISSION OF AN UNLAWFUL ACT."  140 F.2D AT 666. 

FN5  IT DOES NOT APPEAR THAT THE STATE HAS TAKEN ANY STEPS TOWARD
PROSECUTION FOR VIOLATION OF ITS LAW. 

FN6  CF. NOTES 7 AND 10.  AND SEE NEAL V. DELAWARE, 103 U.S. 370,
397; CIVIL RIGHTS CASES, 109 U.S. 3, 15-18; CHICAGO, B. & Q.R. CO. V.
CHICAGO, 166 U.S. 226, 233-234; RAYMOND V. CHICAGO TRACTION CO., 207
U.S. 20, 35-37; EX PARTE YOUNG, 209 U.S. 123; HOME TEL. & TEL. CO. V.
LOS ANGELES, 227 U.S. 278, 288-289; CUYAHOGA POWER CO. V. AKRON, 240
U.S. 462; FIDELITY & DEPOSIT CO. V. TAFOYA, 270 U.S. 426, 434; HOPKINS
V. SOUTHERN CALIFORNIA TELEPHONE CO., 275 U.S. 393, 398; IOWA-DES
MOINES BANK V. BENNETT, 284 U.S. 239, 245-246; NIXON V. CONDON, 286
U.S. 73, 89; MOSHER V. CITY OF PHOENIX, 287 U.S. 29; STERLING V.
CONSTANTIN, 287 U.S. 378, 393; MOONEY V. HOLOHAN, 294 U.S. 103;
MISSOURI EX REL. GAINES V. CANADA, 305 U.S. 337, 343; HAGUE V. C.I.O.,
307 U.S. 496, 512; COCHRAN V. KANSAS, 316 U.S. 255; PYLE V. KANSAS, 317
U.S. 213. 

FN7  "THE PROHIBITIONS OF THE FOURTEENTH AMENDMENT ARE DIRECTED TO THE
STATES,  ...  IT IS THESE WHICH CONGRESS IS EMPOWERED TO ENFORCE, AND
TO ENFORCE AGAINST STATE ACTION, HOWEVER PUT FORTH, WHETHER THAT ACTION
BE EXECUTIVE, LEGISLATIVE, OR JUDICIAL  ....  WHOEVER, BY VIRTUE OF
PUBLIC POSITION UNDER A STATE GOVERNMENT, DEPRIVES ANOTHER OF PROPERTY,
LIFE, OR LIBERTY, WITHOUT DUE PROCESS OF LAW, OR DENIES OR TAKES AWAY
THE EQUAL PROTECTION OF THE LAWS, VIOLATES THE CONSTITUTIONAL
INHIBITION; AND AS HE ACTS IN THE NAME AND FOR THE STATE, AND IS
CLOTHED WITH THE STATE'S POWER, HIS ACT IS THAT OF THE STATE.  THIS
MUST BE SO, OR THE CONSTITUTIONAL PROHIBITION HAS NO MEANING."  EX
PARTE VIRGINIA, 100 U.S. 339, 346-347. 

"MISUSE OF POWER, POSSESSED BY VIRTUE OF STATE LAW AND MADE POSSIBLE
ONLY BECAUSE THE WRONGDOER IS CLOTHED WITH THE AUTHORITY OF STATE LAW,
IS ACTION TAKEN 'UNDER COLOR OF' STATE LAW."  UNITED STATES V. CLASSIC,
313 U.S. 299, 326, CITING EX PARTE VIRGINIA, SUPRA, AND OTHER
AUTHORITIES. 

FN8  CF. PART III INFRA.  "SUCH ENFORCEMENT (OF THE FOURTEENTH
AMENDMENT BY CONGRESS) IS NO INVASION OF STATE SOVEREIGNTY.  NO LAW CAN
BE, WHICH THE PEOPLE OF THE STATES HAVE, BY THE CONSTITUTION OF THE
UNITED STATES, EMPOWERED CONGRESS TO ENACT.  THIS EXTENT OF THE POWERS
OF THE GENERAL GOVERNMENT IS OVERLOOKED, WHEN IT IS SAID, AS IT HAS
BEEN IN THIS CASE, THAT THE ACT OF MARCH 1, 1875, (18 STAT., PART 3,
336) INTERFERES WITH STATE RIGHTS."  EX PARTE VIRGINIA, 100 U.S. AT
346. 

FN9 CF. HOME TEL. & TEL. CO. V. LOS ANGELES, 227 U.S. 278, 287. 

FN10  COMPARE BARNEY V. CITY OF NEW YORK, 193 U.S. 430, WITH HOME
TEL. & TEL. CO. V. LOS ANGELES, 227 U.S. 278, THE LATTER SUGGESTING
THAT THE FORMER, "IF IT CONFLICTED WITH THE DOCTRINE" OF RAYMOND V.
CHICAGO TRACTION CO., 207 U.S. 20, AND EX PARTE YOUNG, 209 U.S. 123,
"IS NOW SO DISTINGUISHED OR QUALIFIED AS NOT TO BE HERE AUTHORITATIVE
OR EVEN PERSUASIVE."  227 U.S. AT 294.  SEE ALSO SNOWDEN V. HUGHES, 321
U.S. 1, 13; ISSEKS, JURISDICTION OF THE LOWER FEDERAL COURTS TO ENJOIN
UNAUTHORIZED ACTION OF STATE OFFICIALS, 40 HARV. L. REV. 969, 972. 

FN11  PETITIONERS' OBJECTIONS IN LAW WERE STATED MOST SPECIFICALLY IN
THE DEMURRER TO THE INDICTMENT.  THESE GROUNDS ALSO WERE INCORPORATED
IN THEIR MOTION FOR A DIRECTED VERDICT AND THEIR STATEMENT OF GROUNDS
FOR APPEAL.  THE GROUNDS FOR DEMURRER MAINTAINED THAT THE FACTS ALLEGED
WERE NOT SUFFICIENT TO CONSTITUTE A FEDERAL OFFENSE, TO FALL WITHIN OR
VIOLATE THE TERMS OF ANY FEDERAL LAW OR STATUTE, OR TO CONFER
JURISDICTION UPON THE DISTRICT OR OTHER FEDERAL COURT.  ONE GROUND
ATTACKED THE INDICTMENT FOR VAGUENESS. 

FN12  SECTION 19 OF THE CRIMINAL CODE (18 U.S.C. SEC. 51): 

"IF TWO OR MORE PERSONS CONSPIRE TO INJURE, OPPRESS, THREATEN, OR
INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT
OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES, OR BECAUSE OF HIS HAVING SO EXERCISED THE SAME, OR IF TWO OR
MORE PERSONS GO IN DISGUISE ON THE HIGHWAY, OR ON THE PREMISES OF
ANOTHER, WITH INTENT TO PREVENT OR HINDER HIS FREE EXERCISE OR
ENJOYMENT OF ANY RIGHT OR PRIVILEGE SO SECURED, THEY SHALL BE FINED NOT
MORE THAN $5,000 AND IMPRISONED NOT MORE THAN TEN YEARS, AND SHALL,
MOREOVER, BE THEREAFTER INELIGIBLE TO ANY OFFICE, OR PLACE OF HONOR,
PROFIT, OR TRUST CREATED BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES." 


"WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM, WILLFULLY SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY INHABITANT
OF ANY STATE, TERRITORY, OR DISTRICT TO THE DEPRIVATION OF ANY RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY THE CONSTITUTION AND
LAWS OF THE UNITED STATES, OR TO DIFFERENT PUNISHMENTS, PAINS, OR
PENALTIES, ON ACCOUNT OF SUCH INHABITANT BEING AN ALIEN, OR BY REASON
OF HIS COLOR, OR RACE, THAN ARE PRESCRIBED FOR THE PUNISHMENT OF
CITIZENS, SHALL BE FINED NOT MORE THAN $1,000, OR IMPRISONED NOT MORE
THAN ONE YEAR, OR BOTH." 

FN13  CF. NOTE 32.  PRESIDENT JOHNSON, VETOING ANOTHER BILL ON JULY
16, 1866, STATED THAT THE PENALTIES OF THE CIVIL RIGHTS ACT "ARE
DENOUNCED AGAINST THE PERSON WHO WILLFULLY VIOLATES THE LAW."  CONG.
GLOBE, 39TH CONG., 1ST SESS., 3839. 

FN14  FOR THE HISTORY OF THESE CHANGES, SEE THE AUTHORITIES CITED IN
THE OPINION OF MR. JUSTICE DOUGLAS, PARTICULARLY FLACK, ADOPTION OF THE
FOURTEENTH AMENDMENT (1908). 

FN15  UNITED STATES V. RHODES, 27 FED. CAS. 785, NO. 16,151; UNITED
STATES V. JACKSON, 26 FED. CAS. 563, NO. 15,459; UNITED STATES V.
BUNTIN, 10 F. 730; CF. UNITED STATES V. STONE, 188 F. 836, A
PROSECUTION UNDER SEC. 37 OF THE CRIMINAL CODE FOR CONSPIRACY TO
VIOLATE SEC. 20; CF., ALSO 197 F. 483; UNITED STATES V. HORTON, 26 FED.
CAS. 375, NO. 15,392.  THE CONSTITUTIONALITY OF THE STATUTE WAS
SUSTAINED IN THE RHODES CASE IN 1866, AND IN THE JACKSON CASE IN 1874. 
IT WAS LIKEWISE SUSTAINED IN IN RE TURNER, 24 FED. CAS. 337, NO.
14,247(1867); SMITH V. MOODY, 26 IND. 299(1866). 

FN16  CF. THE AUTHORITIES CITED INFRA AT NOTE 25. 

FN17  REFERRING TO SEC. 20, THE COURT SAID:  "THE GENERALITY OF THE
RIGHT, DOES NOT OBSCURE ITS MEANING OR IMPAIR ITS FORCE WITHIN THE
SCOPE OF ITS APPLICATION, WHICH IS RESTRICTED BY ITS TERMS TO
DEPRIVATIONS WHICH ARE WILLFULLY INFLICTED BY THOSE ACTING UNDER COLOR
OF ANY LAW, STATUTE AND THE LIKE."  313 U.S. AT 328. 

CONCERNING SEC. 19, ALSO INVOLVED, THE COURT POINTED TO THE DECISIONS
IN EX PARTE YARBROUGH, 110 U.S. 651, AND UNITED STATES V. MOSLEY, 238
U.S. 383, CF. NOTE 22, AND COMMENTED:  "...  THE COURT FOUND NO
UNCERTAINTY OR AMBIGUITY IN THE STATUTORY LANGUAGE, OBVIOUSLY DEVISED
TO PROTECT THE CITIZEN 'IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT
OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION,' AND CONCERNED ITSELF
WITH THE QUESTION WHETHER THE RIGHT TO PARTICIPATE IN CHOOSING A
REPRESENTATIVE IS SO SECURED.  SUCH IS OUR FUNCTION HERE."  313 U.S. AT
321.  THE OPINION STATED FURTHER:  "THE SUGGESTION THAT SEC. 19  ...
IS NOT SUFFICIENTLY SPECIFIC TO BE DEEMED APPLICABLE TO PRIMARY
ELECTIONS, WILL HARDLY BEAR EXAMINATION.  SECTION 19 SPEAKS NEITHER OF
ELECTIONS NOR OF PRIMARIES.  IN UNAMBIGUOUS LANGUAGE IT PROTECTS 'ANY
RIGHT OR PRIVILEGE SECURED BY THE CONSTITUTION,' A PHRASE WHICH  ...
EXTENDS TO THE RIGHT OF THE VOTER TO HAVE HIS VOTE COUNTED ...  AS WELL
AS TO NUMEROUS OTHER CONSTITUTIONAL RIGHTS WHICH ARE WHOLLY UNRELATED
TO THE CHOICE OF A REPRESENTATIVE IN CONGRESS," CITING UNITED STATES V.
WADDELL, 112 U.S. 76; LOGAN V. UNITED STATES, 144 U.S. 263; IN RE
QUARLES, 158 U.S. 532; MOTES V. UNITED STATES, 178 U.S. 458; GUINN V.
UNITED STATES, 238 U.S. 347.  CF. NOTE 18. 

FN18  THE DISSENTING OPINION DID NOT URGE THAT SECS. 19 AND 20 ARE
WHOLLY VOID FOR AMBIGUITY, SINCE IT PUT TO ONE SIDE CASES INVOLVING
DISCRIMINATION FOR RACE OR COLOR AS "PLAINLY OUTLAWED BY THE FOURTEENTH
AMENDMENT," AS TO WHICH IT WAS SAID, "SINCE THE CONSTITUTIONAL MANDATE
IS PLAIN, THERE IS NO REASON WHY SEC. 19 OR SEC. 20 SHOULD NOT BE
APPLICABLE."  HOWEVER, IT WAS THOUGHT "NO SUCH UNAMBIGUOUS MANDATE" HAD
BEEN GIVEN BY THE CONSTITUTIONAL PROVISIONS RELEVANT IN THE CLASSIC
CASE.  313 U.S. AT 332. 

FN19 CF. NOTE 18. 

FN20  WHETHER OR NOT THE TWO ARE COEXTENSIVE IN LIMITATION OF FEDERAL
AND STATE POWER, RESPECTIVELY, THERE IS CERTAINLY A VERY BROAD
CORRELATION IN COVERAGE, AND IT HARDLY COULD BE MAINTAINED THAT ONE IS
CONFINED BY MORE CLEAR-CUT BOUNDARIES THAN THE OTHER, ALTHOUGH
DIFFERENCES IN MEANDERING OF THE BOUNDARIES MAY EXIST. 

FN21  THE COURT'S OPINION IN THE CLASSIC CASE TREATED THIS CLAUSE OF
SEC. 20, CF. NOTE 12, AS ENTIRELY DISTINCT FROM THE PRECEDING CLAUSES,
STATING THAT "THE QUALIFICATION WITH RESPECT TO ALIENAGE, COLOR AND
RACE, REFERS ONLY TO DIFFERENCES IN PUNISHMENT AND NOT TO DEPRIVATIONS
OF ANY RIGHTS OR PRIVILEGES SECURED BY THE CONSTITUTION," AS WAS
THOUGHT TO BE EVIDENCED BY THE GRAMMATICAL STRUCTURE OF THE SECTION AND
"THE NECESSITIES OF THE PRACTICAL APPLICATION OF ITS PROVISIONS."  313
U.S. 326. 

THE "PAINS AND PENALTIES" PROVISION IS CLEARLY ONE AGAINST
DISCRIMINATION.  IT DOES NOT FOLLOW THAT THE QUALIFICATION AS TO
ALIENAGE, COLOR AND RACE DOES NOT ALSO REFER TO THE "DEPRIVATION OF ANY
RIGHTS OR PRIVILEGES" CLAUSE, THOUGH NOT IN AN EXCLUSIVE SENSE.  NO
AUTHORITY FOR THE CONTRARY DICTUM WAS CITED.  HISTORY HERE WOULD SEEM
TO OUTWEIGH DOUBTFUL GRAMMAR, SINCE, AS SEC. 20 ORIGINALLY APPEARED IN
THE CIVIL RIGHTS ACT, THE QUALIFICATION AS TO "COLOR OR RACE" (ALIENAGE
WAS ADDED LATER) SEEMS CLEARLY APPLICABLE TO ITS ENTIRE PROHIBITION. 
ALTHOUGH THE SECTION IS NOT EXCLUSIVELY A DISCRIMINATION STATUTE, IT
WOULD SEEM CLEARLY, IN THE LIGHT OF ITS HISTORY, TO INCLUDE
DISCRIMINATION FOR ALIENAGE, COLOR OR RACE AMONG THE PROHIBITED MODES
OF DEPRIVING PERSONS OF RIGHTS OR PRIVILEGES. 

FN22  EX PARTE YARBROUGH, 110 U.S. 651(1884); UNITED STATES V.
WADDELL, 112 U.S. 76(1884); LOGAN V. UNITED STATES, 144 U.S. 263(1892);
IN RE QUARLES AND BUTLER, 158 U.S. 532(1895); MOTES V. UNITED STATES,
178 U.S. 458(1900); UNITED STATES V. MOSLEY, 238 U.S. 383(1915); UNITED
STATES V. MORRIS, 125 F. 322(1903); UNITED STATES V. LACKEY, 99 F.
952(1900), REVERSED ON OTHER GROUNDS, 107 F. 114, CERT. DENIED, 181
U.S. 621.    IN UNITED STATES V. MOSLEY, SUPRA, AS IS NOTED IN THE
TEXT, THE COURT SUMMARILY DISPOSED OF THE QUESTION OF VALIDITY, STATING
THAT THE SECTION'S CONSTITUTIONALITY "IS NOT OPEN TO QUESTION."  238
U.S. AT 386.  CF. NOTE 17.  THE COURT WAS CONCERNED WITH IMPLIED
REPEAL, BUT STATED:  "BUT SEC. 6(THE ANTECEDENT OF SEC. 19 IN THE
ENFORCEMENT ACT) BEING DEVOTED, AS WE HAVE SAID, TO THE PROTECTION OF
ALL FEDERAL RIGHTS FROM CONSPIRACIES AGAINST THEM  ...  JUST AS THE
FOURTEENTH AMENDMENT  ...  WAS ADOPTED WITH A VIEW TO THE PROTECTION OF
THE COLORED RACE BUT HAS BEEN FOUND TO BE EQUALLY IMPORTANT IN ITS
APPLICATION TO THE RIGHTS OF ALL, SEC. 6 HAD A GENERAL SCOPE AND USED
GENERAL WORDS THAT HAVE BECOME THE MOST IMPORTANT  ...  THE SECTION NOW
BEGINS WITH SWEEPING GENERAL WORDS.  THOSE WORDS ALWAYS WERE IN THE
ACT, AND THE PRESENT FORM GIVES THEM A CONGRESSIONAL INTERPRETATION. 
EVEN IF THAT INTERPRETATION WOULD NOT HAVE BEEN HELD CORRECT IN AN
INDICTMENT UNDER SEC. 6, WHICH WE ARE FAR FROM INTIMATING, AND IF WE
CANNOT INTERPRET THE PAST BY THE PRESENT, WE CANNOT ALLOW THE PAST SO
FAR TO AFFECT THE PRESENT AS TO DEPRIVE CITIZENS OF THE UNITED STATES
OF THE GENERAL PROTECTION WHICH ON ITS FACE SEC. 19 MOST REASONABLY
AFFORDS."  238 U.S. AT 387-388.  THE DISSENTING OPINION OF MR. JUSTICE
LAMAR RAISED NO QUESTION OF THE SECTION'S VALIDITY.  IT MAINTAINED THAT
CONGRESS HAD NOT INCLUDED OR HAD REMOVED PROTECTION OF VOTING RIGHTS
FROM THE SECTION, LEAVING ONLY CIVIL RIGHTS WITHIN ITS COVERAGE.  238
U.S. AT 390. 

THE CASES HOLDING THAT THE FOURTEENTH AMENDMENT AND SEC. 19 DO NOT
APPLY TO INFRACTIONS OF CONSTITUTIONAL RIGHTS INVOLVING NO STATE ACTION
RECOGNIZE AND OFTEN AFFIRM THE SECTION'S APPLICABILITY TO WRONGFUL
ACTION BY STATE OFFICIALS WHICH INFRINGES THEM:  UNITED STATES V.
CRUIKSHANK, 92 U.S. 542(1876); HODGES V. UNITED STATES, 203 U.S.
1(1906); UNITED STATES V. POWELL, 212 U.S. 564(1909), SEE ALSO 151 F.
648; EX PARTE RIGGINS, 134 F. 404(1904), DISMISSED, 199 U.S. 547;
UNITED STATES V. SANGES, 48 F. 78(1891), WRIT OF ERROR DISMISSED, 144
U.S. 310; POWE V. UNITED STATES, 109 F.2D 147(1940), CERT. DENIED, 309
U.S. 679.  SEE ALSO UNITED STATES V. HALL, 26 FED. CAS. 79, NO.
15,282(1871); UNITED STATES V. MALL, 26 FED. CAS. 1147, NO.
15,712(1871). 

FN23  CF. THE AUTHORITIES CITED IN NOTES 22 AND 25; UNITED STATES V.
SAYLOR, 322 U.S. 385. 

FN24  SECTIONS 19 AND 37 CLEARLY OVERLAP IN CONDEMNING CONSPIRACIES
TO VIOLATE CONSTITUTIONAL RIGHTS.  THE LATTER, APPARENTLY, HAS BEEN
MORE FREQUENTLY USED, AT ANY RATE RECENTLY, WHEN CIVIL RATHER THAN
POLITICAL RIGHTS ARE INVOLVED.  IT GOES WITHOUT SAYING THAT IN THESE
CASES VALIDITY OF THE APPLICATION OF SEC. 37, CHARGING CONSPIRACY TO
VIOLATE SEC. 20, DEPENDS UPON THE LATTER'S VALIDITY IN APPLICATION TO
INFRACTION OF THE RIGHTS CHARGED TO HAVE BEEN INFRINGED. 

FN25  RECENT EXAMPLES INVOLVING THESE AND OTHER RIGHTS ARE:  CULP V.
UNITED STATES, 131 F.2D 93; CATLETTE V. UNITED STATES, 132 F.2D 902;
UNITED STATES V. SUTHERLAND, 37 F.SUPP.  344; UNITED STATES V.
TRIERWEILER, 52 F.SUPP.  4. 

IN THE CULP CASE THE COURT SAID:  "THAT THIS SECTION (SEC. 20) HAS
NOT LOST ANY OF ITS VITALITY SINCE IT WAS ORIGINALLY ENACTED, IS
INDICATED BY  ...  UNITED STATES V. CLASSIC  ...  IT IS OUR OPINION
THAT A STATE LAW ENFORCEMENT OFFICER WHO, UNDER COLOR OF STATE LAW,
WILLFULLY AND WITHOUT CAUSE, ARRESTS AND IMPRISONS AN INHABITANT OF THE
UNITED STATES FOR THE PURPOSE OF EXTORTION, DEPRIVES HIM OF A RIGHT,
PRIVILEGE, AND IMMUNITY SECURED AND PROTECTED BY THE CONSTITUTION OF
THE UNITED STATES, AND COMMITS ONE OF THE OFFENSES DEFINED IN SEC.
52."  131 F.2D AT 98.  FOURTEENTH AMENDMENT RIGHTS WERE INVOLVED ALSO
IN THE CATLETTE CASE; AND IN UNITED STATES V. TRIERWEILER, SUPRA, THE
COURT SAID:  "THE CONGRESSIONAL PURPOSE, OBVIOUSLY, IS TO ASSURE
ENJOYMENT OF THE RIGHTS OF CITIZENS DEFINED BY THE FOURTEENTH
AMENDMENT, INCLUDING THE MANDATE THAT NO STATE SHALL DEPRIVE ANY PERSON
OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW  ..."  52
F.SUPP.  AT 5. 

UNITED STATES V. BUNTIN, 10 F. 730, INVOLVED ALLEGED DISCRIMINATION
FOR RACE IN DENYING THE RIGHT TO ATTEND PUBLIC SCHOOL.  IN UNITED
STATES V. CHAPLIN, 54 F.SUPP.  926, THE COURT RULED THAT A STATE JUDGE,
ACTING IN HIS JUDICIAL CAPACITY, IS IMMUNE TO PROSECUTION UNDER SEC. 37
FOR VIOLATING SEC. 20.  BUT CF. EX PARTE VIRGINIA, 100 U.S. 339. 

FN26  THESE HAVE BEEN THE PERENNIAL OBJECTIONS, NOTWITHSTANDING
UNIFORM REJECTION IN CASES INVOLVING INTERFERENCE WITH BOTH POLITICAL
AND CIVIL RIGHTS.  CF. THE AUTHORITIES CITED IN NOTES 7, 10, 22 AND
25. 

FN27  COMPARE UNITED STATES V. CHAPLIN, 54 F.SUPP.  926(SEE NOTE 25
SUPRA), WITH EX PARTE VIRGINIA, 100 U.S. 339. 

FN28  CF. UNITED STATES V. BUNTIN, 10 F. 730. 

FN29  CF. AUTHORITIES CITED IN NOTES 7, 10, 22 AND 25. 

FN30  CF. PART III. 

FN31  COMPARE THE STATUTES UPHELD IN CHAPLINSKY V. NEW HAMPSHIRE, 315
U.S. 568, 573-574; GORIN V. UNITED STATES, 312 U.S. 19, 23-28;
MINNESOTA V. PROBATE COURT, 309 U.S. 270, 274; OLD DEARBORN CO. V.
SEAGRAM CORP., 299 U.S. 183, 196; BANDINI PETROLEUM CO. V. SUPERIOR
COURT, 284 U.S. 8, 18; WHITNEY V. CALIFORNIA, 274 U.S. 357, 360, 368
369; FOX V. WASHINGTON, 236 U.S. 273, 277-278; UNITED STATES V. KEITEL,
211 U.S. 370, 393-395. 

FN32  I THINK ALL THIS WOULD BE IMPLIED IF "WILLFULLY" HAD NOT BEEN
ADDED TO SEC. 20 BY AMENDMENT.  THE ADDITION BUT REINFORCES THE
ORIGINAL PURPOSE.  CF. NOTE 13 SUPRA.  CONGRESS, IN THIS LEGISLATION,
HARDLY CAN BE TAKEN TO HAVE SOUGHT TO PUNISH MERELY NEGLIGENT CONDUCT
OR HONEST ERROR OF JUDGMENT BY STATE OFFICIALS.  THE AIM WAS AT GROSSER
VIOLATIONS OF BASIC RIGHTS AND THE SUPREME LAW.  SENSIBLE CONSTRUCTION
OF THE LANGUAGE, WITH OTHER CONSIDERATIONS, REQUIRES THIS VIEW.  THE
CONSISTENT COURSE OF THE SECTION'S APPLICATION SUPPORTS IT. 

FN33  SEE FLACK, ADOPTION OF THE FOURTEENTH AMENDMENT (1908) 22-38;
CONG. GLOBE, 39TH CONG., 1ST SESS., 474-607, 1151 FF. 

SENATOR DAVIS OF KENTUCKY SAID THAT "THIS SHORT BILL REPEALS ALL THE
PENAL LAWS OF THE STATES ....  THE CASES  ...  THE  ...  BILL WOULD
BRING UP EVERY DAY IN THE UNITED STATES WOULD BE AS NUMEROUS AS THE
PASSING MINUTES.  THE RESULT WOULD BE TO UTTERLY SUBVERT OUR GOVERNMENT
..."  CONG. GLOBE, 39TH CONG., 1ST SESS., 598. 

FN34  CF. NOTE 8. 

MY CONVICTIONS ARE AS I HAVE STATED THEM.  WERE IT POSSIBLE FOR ME TO
ADHERE TO THEM IN MY VOTE, AND FOR THE COURT AT THE SAME TIME TO
DISPOSE OF THE CAUSE, I WOULD ACT ACCORDINGLY.  THE COURT, HOWEVER, IS
DIVIDED IN OPINION.  IF EACH MEMBER ACCORDS HIS VOTE TO HIS BELIEF, THE
CASE CANNOT HAVE DISPOSITION.  STALEMATE SHOULD NOT PREVAIL FOR ANY
REASON, HOWEVER COMPELLING, IN A CRIMINAL CAUSE OR, IF AVOIDABLE, IN
ANY OTHER.  MY VIEWS CONCERNING APPROPRIATE DISPOSITION ARE MORE NEARLY
IN ACCORD WITH THOSE STATED BY MR. JUSTICE DOUGLAS, IN WHICH THREE
OTHER MEMBERS OF THE COURT CONCUR, THAN THEY ARE WITH THE VIEWS OF MY
DISSENTING BRETHREN WHO FAVOR OUTRIGHT REVERSAL.  ACCORDINGLY, IN ORDER
THAT DISPOSITION MAY BE MADE OF THIS CASE, MY VOTE HAS BEEN CAST TO
REVERSE THE DECISION OF THE COURT OF APPEALS AND REMAND THE CAUSE TO
THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THE
DISPOSITION REQUIRED BY THE OPINION OF MR. JUSTICE DOUGLAS. 

MR. JUSTICE MURPHY, DISSENTING. 

I DISSENT.  ROBERT HALL, A NEGRO CITIZEN, HAS BEEN DEPRIVED NOT ONLY
OF THE RIGHT TO BE TRIED BY A COURT RATHER THAN BY ORDEAL.  HE HAS BEEN
DEPRIVED OF THE RIGHT TO LIFE ITSELF.  THAT RIGHT BELONGED TO HIM NOT
BECAUSE HE WAS A NEGRO OR A MEMBER OF ANY PARTICULAR RACE OR CREED. 
THAT RIGHT WAS HIS BECAUSE HE WAS AN AMERICAN CITIZEN, BECAUSE HE WAS A
HUMAN BEING.  AS SUCH, HE WAS ENTITLED TO ALL THE RESPECT AND FAIR
TREATMENT THAT BEFITS THE DIGNITY OF MAN, A DIGNITY THAT IS RECOGNIZED
AND GUARANTEED BY THE CONSTITUTION.  YET NOT EVEN THE SEMBLANCE OF DUE
PROCESS HAS BEEN ACCORDED HIM.  HE HAS BEEN CRUELLY AND UNJUSTIFIABLY
BEATEN TO DEATH BY LOCAL POLICE OFFICERS ACTING UNDER COLOR OF
AUTHORITY DERIVED FROM THE STATE.  IT IS DIFFICULT TO BELIEVE THAT SUCH
AN OBVIOUS AND NECESSARY RIGHT IS INDEFINITELY GUARANTEED BY THE
CONSTITUTION OR IS FOREIGN TO THE KNOWLEDGE OF LOCAL POLICE OFFICERS SO
AS TO CAST ANY REASONABLE DOUBT ON THE CONVICTION UNDER SEC. 20 OF THE
CRIMINAL CODE OF THE PERPETRATORS OF THIS "SHOCKING AND REVOLTING
EPISODE IN LAW ENFORCEMENT." 

THE CONSTITUTION AND SEC. 20 MUST BE READ TOGETHER INASMUCH AS SEC.
20 REFERS IN PART TO CERTAIN PROVISIONS OF THE CONSTITUTION.  SECTION
20 PUNISHES ANYONE, ACTING UNDER COLOR OF ANY LAW, WHO WILLFULLY
DEPRIVES ANY PERSON OF ANY RIGHT, PRIVILEGE OR IMMUNITY SECURED OR
PROTECTED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES.  THE
PERTINENT PART OF THE CONSTITUTION IN THIS INSTANCE IS SEC. 1 OF THE
FOURTEENTH AMENDMENT, WHICH FIRMLY AND UNMISTAKABLY PROVIDES THAT NO
STATE SHALL DEPRIVE ANY PERSON OF LIFE WITHOUT DUE PROCESS OF LAW. 
TRANSLATED IN LIGHT OF THIS SPECIFIC PROVISION OF THE FOURTEENTH
AMENDMENT, SEC. 20 THUS PUNISHES ANYONE, ACTING UNDER COLOR OF STATE
LAW, WHO WILLFULLY DEPRIVES ANY PERSON OF LIFE WITHOUT DUE PROCESS OF
LAW.  SUCH IS THE CLEAR STATUTORY PROVISION UPON WHICH THIS CONVICTION
MUST STAND OR FALL. 

A GRAVE CONSTITUTIONAL ISSUE, HOWEVER, IS SAID TO LURK IN THE ALLEGED
INDEFINITENESS OF THE CRIME OUTLAWED BY SEC. 20.  THE RIGHTS,
PRIVILEGES AND IMMUNITIES SECURED OR PROTECTED BY THE CONSTITUTION OR
LAWS OF THE UNITED STATES ARE CLAIMED TO BE SO UNCERTAIN AND FLEXIBLE,
DEPENDENT UPON CHANGEABLE LEGAL CONCEPTS, AS TO LEAVE A STATE OFFICIAL
CONFUSED AND IGNORANT AS TO WHAT ACTIONS OF HIS MIGHT RUN AFOUL OF THE
LAW.  THE STATUTE, IT IS CONCLUDED, MUST BE SET ASIDE FOR VAGUENESS. 

IT IS AXIOMATIC, OF COURSE, THAT A CRIMINAL STATUTE MUST GIVE A CLEAR
AND UNMISTAKABLE WARNING AS TO THE ACTS WHICH WILL SUBJECT ONE TO
CRIMINAL PUNISHMENT.  AND COURTS ARE WITHOUT POWER TO SUPPLY THAT WHICH
CONGRESS HAS LEFT VAGUE.  BUT THIS SALUTARY PRINCIPLE DOES NOT MEAN
THAT IF A STATUTE IS VAGUE AS TO CERTAIN CRIMINAL ACTS BUT DEFINITE AS
TO OTHERS THE ENTIRE STATUTE MUST FALL.  NOR DOES IT MEAN THAT IN THE
FIRST CASE INVOLVING THE STATUTE TO COME BEFORE US WE MUST DELINEATE
ALL THE PROHIBITED ACTS THAT ARE OBSCURE AND ALL THOSE THAT ARE
EXPLICIT. 

THUS IT IS IDLE TO SPECULATE ON OTHER SITUATIONS THAT MIGHT INVOLVE
SEC. 20 WHICH ARE NOT NOW BEFORE US.  WE ARE UNCONCERNED HERE WITH
STATE OFFICIALS WHO HAVE COERCED A CONFESSION FROM A PRISONER, DENIED
COUNSEL TO A DEFENDANT OR MADE A FAULTY TAX ASSESSMENT.  WHATEVER DOUBT
MAY EXIST IN THOSE OR IN OTHER SITUATIONS AS TO WHETHER THE STATE
OFFICIALS COULD REASONABLY ANTICIPATE AND RECOGNIZE THE RELEVANT
CONSTITUTIONAL RIGHTS IS IMMATERIAL IN THIS CASE.  OUR ATTENTION HERE
IS DIRECTED SOLELY TO THREE STATE OFFICIALS WHO, IN THE COURSE OF THEIR
OFFICIAL DUTIES, HAVE UNJUSTIFIABLY BEATEN AND CRUSHED THE BODY OF A
HUMAN BEING, THEREBY DEPRIVING HIM OF TRIAL BY JURY AND OF LIFE
ITSELF.  THE ONLY PERTINENT INQUIRY IS WHETHER SEC. 20, BY ITS
REFERENCE TO THE FOURTEENTH AMENDMENT GUARANTEE THAT NO STATE SHALL
DEPRIVE ANY PERSON OF LIFE WITHOUT DUE PROCESS OF LAW, GIVES FAIR
WARNING TO STATE OFFICIALS THAT THEY ARE CRIMINALLY LIABLE FOR
VIOLATING THIS RIGHT TO LIFE. 

COMMON SENSE GIVES AN AFFIRMATIVE ANSWER TO THAT PROBLEM.  THE
REFERENCE IN SEC. 20 TO RIGHTS PROTECTED BY THE CONSTITUTION IS
MANIFEST AND SIMPLE.  AT THE SAME TIME, THE RIGHT NOT TO BE DEPRIVED OF
LIFE WITHOUT DUE PROCESS OF LAW IS DISTINCTLY AND LUCIDLY PROTECTED BY
THE FOURTEENTH AMENDMENT.  THERE IS NOTHING VAGUE OR INDEFINITE IN
THESE REFERENCES TO THIS MOST BASIC OF ALL HUMAN RIGHTS.  KNOWLEDGE OF
A COMPREHENSIVE LAW LIBRARY IS UNNECESSARY FOR OFFICERS OF THE LAW TO
KNOW THAT THE RIGHT TO MURDER INDIVIDUALS IN THE COURSE OF THEIR DUTIES
IS UNRECOGNIZED IN THIS NATION.  NO APPRECIABLE AMOUNT OF INTELLIGENCE
OR CONJECTURE ON THE PART OF THE LOWLIEST STATE OFFICIAL IS NEEDED FOR
HIM TO REALIZE THAT FACT; NOR SHOULD IT SURPRISE HIM TO FIND OUT THAT
THE CONSTITUTION PROTECTS PERSONS FROM HIS RECKLESS DISREGARD OF HUMAN
LIFE AND THAT STATUTES PUNISH HIM THEREFOR.  TO SUBJECT A STATE
OFFICIAL TO PUNISHMENT UNDER SEC. 20 FOR SUCH ACTS IS NOT TO PENALIZE
HIM WITHOUT FAIR AND DEFINITE WARNING.  RATHER IT IS TO UPHOLD
ELEMENTARY STANDARDS OF DECENCY AND TO MAKE AMERICAN PRINCIPLES OF LAW
AND OUR CONSTITUTIONAL GUARANTEES MEAN SOMETHING MORE THAN PIOUS
RHETORIC. 

UNDER THESE CIRCUMSTANCES IT IS UNNECESSARY TO SEND THIS CASE BACK
FOR A FURTHER TRIAL ON THE ASSUMPTION THAT THE JURY WAS NOT CHARGED ON
THE MATTER OF THE WILLFULNESS OF THE STATE OFFICIALS, AN ISSUE THAT WAS
NOT RAISED BELOW OR BEFORE US.  THE EVIDENCE IS MORE THAN CONVINCING
THAT THE OFFICIALS WILLFULLY, OR AT LEAST WITH WANTON DISREGARD OF THE
CONSEQUENCES, DEPRIVED ROBERT HALL OF HIS LIFE WITHOUT DUE PROCESS OF
LAW.  A NEW TRIAL COULD HARDLY MAKE THAT FACT MORE EVIDENT; THE FAILURE
TO CHARGE THE JURY ON WILLFULNESS WAS AT MOST AN INCONSEQUENTIAL
ERROR.  MOREOVER, THE PRESENCE OR ABSENCE OF WILLFULNESS FAILS TO
DECIDE THE CONSTITUTIONAL ISSUE RAISED BEFORE US. SECTION 20 IS VERY
DEFINITE AND CERTAIN IN ITS REFERENCE TO THE RIGHT TO LIFE AS SPELLED
OUT IN THE FOURTEENTH AMENDMENT QUITE APART FROM THE STATE OF MIND OF
THE STATE OFFICIALS.  A FINDING OF WILLFULNESS CAN ADD NOTHING TO THE
CLARITY OF THAT REFERENCE. 

IT IS AN ILLUSION TO SAY THAT THE REAL ISSUE IN THIS CASE IS THE
ALLEGED FAILURE OF SEC. 20 FULLY TO WARN THE STATE OFFICIALS THAT THEIR
ACTIONS WERE ILLEGAL.  THE CONSTITUTION, SEC. 20 AND THEIR OWN
CONSCIENCES TOLD THEM THAT.  THEY KNEW THAT THEY LACKED ANY MANDATE OR
AUTHORITY TO TAKE HUMAN LIFE UNNECESSARILY OR WITHOUT DUE PROCESS OF
LAW IN THE COURSE OF THEIR DUTIES.  THEY KNEW THAT THEIR EXCESSIVE AND
ABUSIVE USE OF AUTHORITY WOULD ONLY SUBVERT THE ENDS OF JUSTICE.  THE
SIGNIFICANT QUESTION, RATHER, IS WHETHER LAW ENFORCEMENT OFFICERS AND
THOSE ENTRUSTED WITH AUTHORITY SHALL BE ALLOWED TO VIOLATE WITH
IMPUNITY THE CLEAR CONSTITUTIONAL RIGHTS OF THE INARTICULATE AND THE
FRIENDLESS.  TOO OFTEN UNPOPULAR MINORITIES, SUCH AS NEGROES, ARE
UNABLE TO FIND EFFECTIVE REFUGE FROM THE CRUELTIES OF BIGOTED AND
RUTHLESS AUTHORITY.  STATES ARE UNDOUBTEDLY CAPABLE OF PUNISHING THEIR
OFFICERS WHO COMMIT SUCH OUTRAGES.  BUT WHERE, AS HERE, THE STATES ARE
UNWILLING FOR SOME REASON TO PROSECUTE SUCH CRIMES THE FEDERAL
GOVERNMENT MUST STEP IN UNLESS CONSTITUTIONAL GUARANTEES ARE TO BECOME
ATROPHIED. 

THIS NECESSARY INTERVENTION, HOWEVER, WILL BE FUTILE IF COURTS
DISREGARD REALITY AND MISUSE THE PRINCIPLE THAT CRIMINAL STATUTES MUST
BE CLEAR AND DEFINITE.  HERE STATE OFFICERS HAVE VIOLATED WITH RECKLESS
ABANDON A PLAIN CONSTITUTIONAL RIGHT OF AN AMERICAN CITIZEN.  THE TWO
COURTS BELOW HAVE FOUND AND THE RECORD DEMONSTRATES THAT THE TRIAL WAS
FAIR AND THE EVIDENCE OF GUILT CLEAR.  AND SEC. 20 UNMISTAKABLY OUTLAWS
SUCH ACTIONS BY STATE OFFICERS.  WE SHOULD THEREFORE AFFIRM THE
JUDGMENT. 

MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON,
DISSENTING. 

THREE LAW ENFORCEMENT OFFICERS OF GEORGIA, A COUNTY SHERIFF, A
SPECIAL DEPUTY AND A CITY POLICEMAN, ARRESTED A YOUNG NEGRO CHARGED
WITH A LOCAL CRIME, THAT OF STEALING A TIRE.  WHILE HE WAS IN THEIR
CUSTODY AND HANDCUFFED, THEY SO SEVERELY BEAT THE LAD THAT HE DIED. 
THIS BRUTAL MISCONDUCT RENDERED THESE LAWLESS LAW OFFICERS GUILTY OF
MANSLAUGHTER, IF NOT OF MURDER, UNDER GEORGIA LAW.  INSTEAD OF LEAVING
THIS MISDEED TO VINDICATION BY GEORGIA LAW, THE UNITED STATES DEFLECTED
GEORGIA'S RESPONSIBILITY BY INSTITUTING A FEDERAL PROSECUTION.  BUT
THIS WAS A CRIMINAL HOMICIDE ONLY UNDER GEORGIA LAW.  THE UNITED STATES
COULD NOT PROSECUTE THE PETITIONERS FOR TAKING LIFE.  INSTEAD A
PROSECUTION WAS BROUGHT, AND THE CONVICTION NOW UNDER REVIEW WAS
OBTAINED, UNDER SEC. 20 OF THE CRIMINAL CODE, 18 U.S.C. SEC. 52. 
1866, 14 STAT. 27, WAS PUT ON THE STATUTE BOOKS ON MAY 31, 1870, BUT
FOR ALL PRACTICAL PURPOSES IT HAS REMAINED A DEAD LETTER ALL THESE
YEARS.  THIS SECTION PROVIDES THAT "WHOEVER, UNDER COLOR OF ANY LAW,
STATUTE, ORDINANCE, REGULATION, OR CUSTOM, WILLFULLY SUBJECTS ...  ANY
INHABITANT OF ANY STATE  ...  TO THE DEPRIVATION OF ANY RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY THE CONSTITUTION AND
LAWS OF THE UNITED STATES  ...  SHALL BE FINED NOT MORE THAN ONE
THOUSAND DOLLARS, OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 
UNDER SEC. 37 OF THE CRIMINAL CODE, 18 U.S.C. SEC. 88, A CONSPIRACY TO
COMMIT ANY FEDERAL OFFENSE IS PUNISHABLE BY IMPRISONMENT FOR TWO
YEARS.  THE THEORY OF THIS PROSECUTION IS THAT ONE CHARGED WITH CRIME
IS ENTITLED TO DUE PROCESS OF LAW AND THAT THAT INCLUDES THE RIGHT TO
AN ORDERLY TRIAL OF WHICH THE PETITIONERS DEPRIVED THE NEGRO. 

OF COURSE THE PETITIONERS ARE PUNISHABLE.  THE ONLY ISSUE IS WHETHER
GEORGIA ALONE HAS THE POWER AND DUTY TO PUNISH, OR WHETHER THIS
PATENTLY LOCAL CRIME CAN BE MADE THE BASIS OF A FEDERAL PROSECUTION. 
THE PRACTICAL QUESTION IS WHETHER THE STATES SHOULD BE RELIEVED FROM
RESPONSIBILITY TO BRING THEIR LAW OFFICERS TO BOOK FOR HOMICIDE, BY
ALLOWING PROSECUTIONS IN THE FEDERAL COURTS FOR A RELATIVELY MINOR
OFFENSE CARRYING A SHORT SENTENCE.  THE LEGAL QUESTION IS WHETHER, FOR
THE PURPOSE OF ACCOMPLISHING THIS RELAXATION OF STATE RESPONSIBILITY,
HITHERTO SETTLED PRINCIPLES FOR THE PROTECTION OF CIVIL LIBERTIES SHALL
BE BENT AND TORTURED. 

    I 

BY THE THIRTEENTH AMENDMENT SLAVERY WAS ABOLISHED.  IN ORDER TO
SECURE EQUALITY OF TREATMENT FOR THE EMANCIPATED, THE FOURTEENTH
AMENDMENT WAS ADOPTED AT THE SAME TIME.  TO BE SURE, THE LATTER
AMENDMENT HAS NOT BEEN CONFINED TO INSTANCES OF DISCRIMINATION BECAUSE
OF RACE OR COLOR.  UNDOUBTEDLY, HOWEVER, THE NECESSARY PROTECTION OF
THE NEW FREEDMEN WAS THE MOST POWERFUL IMPULSE BEHIND THE FOURTEENTH
AMENDMENT.  THE VITAL PART OF THAT AMENDMENT, SEC. 1, READS AS FOLLOWS:
"ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND SUBJECT TO
THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE
STATE WHEREIN THEY RESIDE.  NO STATE SHALL MAKE OR ENFORCE ANY LAW
WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE
UNITED STATES; NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY,
OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS." 

BY ITSELF, THIS AMENDMENT IS MERELY AN INSTRUMENT FOR STRIKING DOWN
ACTION BY THE STATES IN DEFINANCE OF IT.  IT DOES NOT CREATE RIGHTS AND
OBLIGATIONS ACTIVELY ENFORCEABLE BY FEDERAL LAW.  HOWEVER, LIKE ALL
RIGHTS SECURED BY THE CONSTITUTION OF THE UNITED STATES, THOSE CREATED
BY THE FOURTEENTH AMENDMENT COULD BE ENFORCED BY APPROPRIATE FEDERAL
LEGISLATION.  THE GENERAL POWER OF CONGRESS TO PASS MEASURES
EFFECTUATING THE CONSTITUTION IS GIVEN BY ART. I, SEC. 8, CL. 18 - THE
NECESSARY-AND-PROPER CLAUSE.  IN ORDER TO INDICATE THE IMPORTANCE OF
ENFORCING THE GUARANTEES OF AMENDMENT XIV, ITS FIFTH SECTION
SPECIFICALLY PROVIDES:  "THE CONGRESS SHALL HAVE POWER TO ENFORCE, BY
APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS ARTICLE." 

ACCORDINGLY, CONGRESS PASSED VARIOUS MEASURES FOR ITS ENFORCEMENT. 
IT IS FAMILIAR HISTORY THAT MUCH OF THIS LEGISLATION WAS BORN OF THAT
VENGEFUL SPIRIT WHICH TO NO SMALL DEGREE ENVENOMED THE RECONSTRUCTION
ERA.  LEGISLATIVE RESPECT FOR CONSTITUTIONAL LIMITATIONS WAS NOT AT ITS
HEIGHT AND CONGRESS PASSED LAWS CLEARLY UNCONSTITUTIONAL.  SEE CIVIL
RIGHTS CASES, 109 U.S. 3.  ONE OF THE LAWS OF THIS PERIOD WAS THE ACT
OF MAY 31, 1870, 16 STAT. 140.  IN ITS PRESENT FORM, AS SEC. 20, IT IS
NOW HERE FOR THE FIRST TIME ON FULL CONSIDERATION AS TO ITS MEANING AND
ITS CONSTITUTIONALITY, UNEMBARRASSED BY PREOCCUPATION BOTH ON THE PART
OF COUNSEL AND COURT WITH THE MORE COMPELLING ISSUE OF THE POWER OF
CONGRESS TO CONTROL STATE PROCEDURE FOR THE ELECTION OF FEDERAL
OFFICERS.  IF SEC. 20 WERE READ AS OTHER LEGISLATION IS READ, BY GIVING
IT THE MEANING WHICH ITS LANGUAGE IN ITS PROPER SETTING NATURALLY AND
SPONTANEOUSLY YIELDS, IT IS DIFFICULT TO BELIEVE THAT THERE WOULD BE
REAL DOUBT ABOUT THE PROPER CONSTRUCTION.  THE UNSTRAINED SIGNIFICANCE
OF THE WORDS CHOSEN BY CONGRESS, THE DISCLOSED PURPOSE FOR WHICH THEY
WERE CHOSEN AND TO WHICH THEY WERE LIMITED, THE ALWAYS RELEVANT
IMPLICATIONS OF OUR FEDERAL SYSTEM ESPECIALLY IN THE DISTRIBUTION OF
POWER AND RESPONSIBILITY FOR THE ENFORCEMENT OF THE CRIMINAL LAW AS
BETWEEN THE STATES AND THE NATIONAL GOVERNMENT, ALL CONVERGE TO MAKE
PLAIN WHAT CONDUCT CONGRESS OUTLAWED BY THE ACT OF 1870 AND WHAT
IMPLIEDLY IT DID NOT. 

THE FOURTEENTH AMENDMENT PROHIBITED A STATE FROM SO ACTING AS TO
DEPRIVE PERSONS OF NEW FEDERAL RIGHTS DEFINED BY IT.  SECTION 5 OF THE
AMENDMENT SPECIFICALLY AUTHORIZED ENABLING LEGISLATION TO ENFORCE THAT
PROHIBITION.  SINCE A STATE CAN ACT ONLY THROUGH ITS OFFICERS, CONGRESS
PROVIDED FOR THE PROSECUTION OF ANY OFFICER WHO DEPRIVES OTHERS OF
THEIR GUARANTEED RIGHTS AND DENIED SUCH AN OFFICER THE RIGHT TO DEFEND
BY CLAIMING THE AUTHORITY OF THE STATE FOR HIS ACTION.  IN SHORT,
CONGRESS SAID THAT NO STATE CAN EMPOWER AN OFFICER TO COMMIT ACTS WHICH
THE CONSTITUTION FORBADE THE STATE FROM AUTHORIZING, WHETHER SUCH
UNAUTHORIZED COMMAND BE GIVEN FOR THE STATE BY ITS LEGISLATIVE OR
JUDICIAL VOICE, OR BY A CUSTOM CONTRADICTING THE WRITTEN LAW.  SEE
NASHVILLE, C. & ST. L.R. CO. V. BROWNING, 310 U.S. 362, 369.  THE
PRESENT PROSECUTION IS NOT BASED ON AN OFFICER'S CLAIM THAT THAT FOR
WHICH THE UNITED STATES SEEKS HIS PUNISHMENT WAS COMMANDED OR
AUTHORIZED BY THE LAW OF HIS STATE.  ON THE CONTRARY, THE PRESENT
PROSECUTION IS BASED ON THE THEORY THAT CONGRESS MADE IT A FEDERAL
OFFENSE FOR A STATE OFFICER TO VIOLATE THE EXPLICIT LAW OF HIS STATE. 
WE ARE ASKED TO CONSTRUE LEGISLATION WHICH WAS INTENDED TO EFFECTUATE
PROHIBITIONS AGAINST STATES FOR DEFIANCE OF THE CONSTITUTION, TO BE
EQUALLY APPLICABLE WHERE A STATE DULY OBEYS THE CONSTITUTION, BUT AN
OFFICER FLOUTS STATE LAW AND IS UNQUESTIONABLY SUBJECT TO PUNISHMENT BY
THE STATE FOR HIS DISOBEDIENCE. 

SO TO READ SEC. 20 DISREGARDS NOT MERELY THE NORMAL FUNCTION OF
LANGUAGE TO EXPRESS IDEAS APPROPRIATELY.  IT FAILS NOT MERELY TO LEAVE
TO THE STATES THE PROVINCE OF LOCAL CRIME ENFORCEMENT, THAT THE PROPER
BALANCE OF POLITICAL FORCES IN OUR FEDERALISM REQUIRES.  IT DOES BOTH,
HEEDLESS OF THE CONGRESSIONAL PURPOSE, CLEARLY EVINCED EVEN DURING THE
FEVERISH RECONSTRUCTION DAYS, TO LEAVE UNDISTURBED THE POWER AND THE
DUTY OF THE STATES TO ENFORCE THEIR CRIMINAL LAW BY RESTRICTING FEDERAL
AUTHORITY TO THE PUNISHMENT ONLY OF THOSE PERSONS WHO VIOLATE FEDERAL
RIGHTS UNDER CLAIM OF STATE AUTHORITY AND NOT BY EXERTING FEDERAL
AUTHORITY AGAINST OFFENDERS OF STATE AUTHORITY.  SUCH A DISTORTION OF
FEDERAL POWER DEVISED AGAINST RECALCITRANT STATE AUTHORITY NEVER
ENTERED THE MINDS OF THE PROPONENTS OF THE LEGISLATION. 

INDEED, WE HAVE THE WEIGHTIEST EVIDENCE TO INDICATE THAT THEY
REJECTED THAT WHICH NOW, AFTER SEVENTY-FIVE YEARS, THE GOVERNMENT
URGES.  SECTION 20 OF THE CRIMINAL CODE DERIVED FROM SEC. 2 OF THE
CIVIL RIGHTS ACT OF 1866, 14 STAT. 27.  DURING THE DEBATE ON THAT
COMMITTEE, ANSWERED FEARS CONCERNING THE LOOSE INCLUSIVENESS OF THE
PHRASE "COLOR OF LAW."  IN PARTICULAR, OPPONENTS OF THE ACT WERE
TROUBLED LEST IT WOULD MAKE CRIMINALS OF STATE JUDGES AND OFFICIALS FOR
CARRYING OUT THEIR LEGAL DUTIES.  SENATOR TRUMBULL AGREED THAT THEY
WOULD BE GUILTY IF THEY CONSCIOUSLY HELPED TO ENFORCE DISCRIMINATORY
STATE LEGISLATION.  FEDERAL LAW, REPLIED SENATOR TRUMBULL, WAS DIRECTED
AGAINST THOSE, AND ONLY AGAINST THOSE, WHO WERE NOT PUNISHABLE BY STATE
LAW PRECISELY BECAUSE THEY ACTED IN OBEDIENCE TO UNCONSTITUTIONAL STATE
LAW AND BY STATE LAW JUSTIFIED THEIR ACTION.  SAID SENATOR TRUMBULL,
"IF AN OFFENSE IS COMMITTED AGAINST A COLORED PERSON SIMPLY BECAUSE HE
IS COLORED, IN A STATE WHERE THE LAW AFFORDS HIM THE SAME PROTECTION AS
IF HE WERE WHITE, THIS ACT NEITHER HAS NOR WAS INTENDED TO HAVE
ANYTHING TO DO WITH HIS CASE, BECAUSE HE HAS ADEQUATE REMEDIES IN THE
STATE COURTS; BUT IF HE IS DISCRIMINATED AGAINST UNDER COLOR OF STATE
LAWS BECAUSE HE IS COLORED, THEN IT BECOMES NECESSARY TO INTERFERE FOR
HIS PROTECTION."  CONG. GLOBE, 39TH CONG., 1ST SESS., P. 1758.  AND
THIS LANGUAGE APPLIES EQUALLY TO SEC. 17 OF THE ACT OF MAY 31, 1870, 16
STAT. 140, 144(NOW SEC. 20 OF THE CRIMINAL CODE), WHICH REENACTED THE
CIVIL RIGHTS ACT. 

THAT THIS LEGISLATION WAS CONFINED TO ATTEMPTED DEPRIVATIONS OF
FEDERAL RIGHTS BY STATE LAW AND WAS NOT EXTENDED TO BREACHES OF STATE
LAW BY ITS OFFICIALS, IS LIKEWISE CONFIRMED BY OBSERVATIONS OF SENATOR
SHERMAN, ANOTHER LEADING RECONSTRUCTION STATESMAN.  WHEN ASKED ABOUT
THE APPLICABILITY OF THE 1870 ACT TO A NEGRO'S RIGHT TO VOTE WHEN STATE
LAW PROVIDED FOR THAT RIGHT, SENATOR SHERMAN REPLIED, "THAT IS NOT THE
CASE WITH WHICH WE ARE DEALING.  I INTEND TO PROPOSE AN AMENDMENT TO
PRESENT A QUESTION OF THAT KIND.  THIS BILL ONLY PROPOSES TO DEAL WITH
OFFENSES COMMITTED BY OFFICERS OR PERSONS UNDER COLOR OF EXISTING STATE
LAW, UNDER COLOR OF EXISTING STATE CONSTITUTIONS.  NO MAN COULD BE
CONVICTED UNDER THIS BILL REPORTED BY THE JUDICIARY COMMITTEE UNLESS
THE DENIAL OF THE RIGHT TO VOTE WAS DONE UNDER COLOR OR PRETENSE OF
STATE REGULATION.  THE WHOLE BILL SHOWS THAT.  MY HONORABLE FRIEND FROM
CALIFORNIA HAS NOT READ THIS BILL WITH HIS USUAL CARE IF HE DOES NOT
SEE THAT THAT RUNS THROUGH THE WHOLE OF THE PROVISIONS OF THE FIRST AND
SECOND SECTIONS OF THE BILL, WHICH SIMPLY PUNISH OFFICERS AS WELL AS
PERSONS FOR DISCRIMINATION UNDER COLOR OF STATE LAWS OR CONSTITUTIONS;
AND SO IT PROVIDES ALL THE WAY THROUGH."  CONG. GLOBE, 41ST CONG., 2D
SESS., P. 3663.  THE DEBATES IN CONGRESS ARE BARREN OF ANY INDICATION
THAT THE SUPPORTERS OF THE LEGISLATION NOW BEFORE US HAD THE REMOTEST
NOTION OF AUTHORIZING THE NATIONAL GOVERNMENT TO PROSECUTE STATE
OFFICERS FOR CONDUCT WHICH THEIR STATE HAD MADE A STATE OFFENSE WHERE
THE SETTLED CUSTOM OF THE STATE DID NOT RUN COUNTER TO FORMULATED LAW. 

WERE IT OTHERWISE IT WOULD INDEED BE SURPRISING.  IT WAS NATURAL TO
GIVE THE SHELTER OF THE CONSTITUTION TO THOSE BASIC HUMAN RIGHTS FOR
THE VINDICATION OF WHICH THE SUCCESSFUL CONDUCT OF THE CIVIL WAR WAS
THE END OF A LONG PROCESS.  AND THE EXTENSION OF FEDERAL AUTHORITY SO
AS TO GUARD AGAINST EVASION BY ANY STATE OF THESE NEWLY CREATED FEDERAL
RIGHTS WAS AN OBVIOUS COROLLARY.  BUT TO ATTRIBUTE TO CONGRESS THE
MAKING OVERNIGHT OF A REVOLUTIONARY CHANGE IN THE BALANCE OF THE
POLITICAL RELATIONS BETWEEN THE NATIONAL GOVERNMENT AND THE STATES
WITHOUT REASON, IS A VERY DIFFERENT THING.  AND TO HAVE PROVIDED FOR
THE NATIONAL GOVERNMENT TO TAKE OVER THE ADMINISTRATION OF CRIMINAL
JUSTICE FROM THE STATES TO THE EXTENT OF MAKING EVERY LAWLESS ACT OF
THE POLICEMAN ON THE BEAT OR IN THE STATION HOUSE, WHETHER BY WAY OF
THIRD DEGREE OR THE ILLEGAL RANSACKING FOR EVIDENCE IN A MAN'S HOUSE
(SEE GOULED V. UNITED STATES, 255 U.S. 298; BYARS V. UNITED STATES, 273
U.S. 28; BROWN V. MISSISSIPPI, 297 U.S. 278; CHAMBERS V. FLORIDA, 309
U.S. 227), A FEDERAL OFFENSE, WOULD HAVE CONSTITUTED A REVOLUTIONARY
BREAK WITH THE PAST OVERNIGHT.  THE DESIRE FOR SUCH A DISLOCATION IN
OUR FEDERAL SYSTEM PLAINLY WAS NOT CONTEMPLATED BY THE LYMAN TRUMBULLS
AND THE JOHN SHERMANS, AND NOT EVEN BY THE THADDEUS STEVENSES. 

REGARD FOR MAINTAINING THE DELICATE BALANCE "BETWEEN THE JUDICIAL
TRIBUNALS OF THE UNION AND OF THE STATES" IN THE ENFORCEMENT OF THE
CRIMINAL LAW HAS INFORMED THIS COURT, AS IT HAS INFLUENCED CONGRESS,
"IN RECOGNITION OF THE FACT THAT THE PUBLIC GOOD REQUIRES THAT THOSE
RELATIONS BE NOT DISTURBED BY UNNECESSARY CONFLICT BETWEEN COURTS
EQUALLY BOUND TO GUARD AND PROTECT RIGHTS SECURED BY THE
CONSTITUTION."  EX PARTE ROYALL, 117 U.S. 241, 251.  OBSERVANCE OF THIS
BASIC PRINCIPLE UNDER OUR SYSTEM OF GOVERNMENT HAS LED THIS COURT TO
ABSTAIN, EVEN UNDER MORE TEMPTING CIRCUMSTANCES THAN THOSE NOW HERE,
FROM NEEDLESS EXTENSION OF FEDERAL CRIMINAL AUTHORITY INTO MATTERS THAT
NORMALLY ARE OF STATE CONCERN AND FOR WHICH THE STATES HAD BEST BE
CHARGED WITH RESPONSIBILITY.    WE HAVE REFERENCE TO SEC. 33 OF THE
JUDICIAL CODE, AS AMENDED, 28 U.S.C. SEC. 76.  THAT PROVISION GIVES THE
RIGHT OF REMOVAL TO A FEDERAL COURT OF ANY CRIMINAL PROSECUTION BEGUN
IN A STATE COURT AGAINST A REVENUE OFFICER OF THE UNITED STATES "ON
ACCOUNT OF ANY ACT DONE UNDER COLOR OF HIS OFFICE OR OF ANY SUCH
(REVENUE) LAW."  WHERE A STATE PROSECUTION FOR MANSLAUGHTER IS RESISTED
BY THE CLAIM THAT WHAT WAS DONE WAS JUSTIFIABLY DONE BY A UNITED STATES
OFFICER ONE WOULD SUPPOSE THAT THIS COURT WOULD BE ALERT TO CONSTRUE
VERY BROADLY "UNDER COLOR OF HIS OFFICE OR OF ANY SUCH LAW" IN ORDER TO
AVOID THE HAZARDS OF TRIAL, WHETHER THROUGH CONSCIOUS OR UNCONSCIOUS
DISCRIMINATION OR HOSTILITY, OF A UNITED STATES OFFICER ACCUSED OF
HOMICIDE AND TO ASSURE HIM A TRIAL IN A PRESUMABLY MORE IMPARTIAL
FEDERAL COURT.  BUT THIS COURT LONG AGO INDICATED THAT MISUSE OF
FEDERAL AUTHORITY DOES NOT COME WITHIN THE STATUTE'S PROTECTION. 
TENNESSEE V. DAVIS, 100 U.S. 257, 261-262.  MORE RECENTLY, THIS COURT
IN A SERIES OF CASES UNANIMOUSLY INSISTED THAT A PETITION FOR REMOVAL
MUST SHOW WITH PARTICULARITY THAT THE OFFENSE FOR WHICH THE STATE IS
PROSECUTING RESULTED FROM A DISCHARGE OF FEDERAL DUTY.  "IT MUST APPEAR
THAT THE PROSECUTION OF HIM, FOR WHATEVER OFFENSE, HAS ARISEN OUT OF
THE ACTS DONE BY HIM UNDER COLOR OF FEDERAL AUTHORITY AND IN
ENFORCEMENT OF FEDERAL LAW, AND HE MUST BY DIRECT AVERMENT EXCLUDE THE
POSSIBILITY THAT IT WAS BASED ON ACTS OR CONDUCT OF HIS NOT JUSTIFIED
BY HIS FEDERAL DUTY....  THE DEFENSE HE IS TO MAKE IS THAT OF HIS
IMMUNITY FROM PUNISHMENT BY THE STATE, BECAUSE WHAT HE DID WAS
JUSTIFIED BY HIS DUTY UNDER THE FEDERAL LAW, AND BECAUSE HE DID NOTHING
ELSE ON WHICH THE PROSECUTION COULD BE BASED."  MARYLAND V. SOPER (NO.
1), 270 U.S. 9, 33.  AND SEE MARYLAND V. SOPER (NO. 2), 270 U.S. 36;
MARYLAND V. SOPER (NO. 3), 270 U.S. 44; COLORADO V. SYMES, 286 U.S.
510.  TO THE SUGGESTION THAT SUCH A LIMITED CONSTRUCTION OF THE REMOVAL
STATUTE ENACTED FOR THE PROTECTION OF THE UNITED STATES OFFICERS WOULD
RESTRICT ITS EFFECTIVENESS, THE ANSWER WAS THAT IF CONGRESS CHOSE TO
AFFORD EVEN GREATER PROTECTION AND TO WITHDRAW FROM THE STATES THE
RIGHT AND DUTY TO ENFORCE THEIR CRIMINAL LAW IN THEIR OWN COURTS, IT
SHOULD EXPRESS ITS DESIRE MORE SPECIFICALLY.  MARYLAND V. SOPER (NO.
2), 270 U.S. 36, 42, 44.  THAT ANSWER SHOULD BE BINDING IN THE
SITUATION NOW BEFORE US. 

THE REASONS WHICH LED THIS COURT TO GIVE SUCH A RETRICTED SCOPE TO
THE REMOVAL STATUTE ARE EVEN MORE COMPELLING AS TO SEC. 20.  THE MATTER
CONCERNS POLICIES INHERENT IN OUR FEDERAL SYSTEM AND THE UNDESIRABLE
CONSEQUENCES OF FEDERAL PROSECUTION FOR CRIMES WHICH ARE OBVIOUSLY AND
PREDOMINANTLY STATE CRIMES NO MATTER HOW MUCH SOPHISTICATED
ARGUMENTATION MAY GIVE THEM THE APPEARANCE OF FEDERAL CRIMES.  CONGRESS
HAS NOT EXPRESSED A CONTRARY PURPOSE, EITHER BY THE LANGUAGE OF ITS
LEGISLATION OR BY ANYTHING APPEARING IN THE ENVIRONMENT OUT OF WHICH
ITS LANGUAGE CAME.  THE PRACTICE OF GOVERNMENT FOR SEVENTY-FIVE YEARS
LIKEWISE SPEAKS AGAINST IT.  NOR IS THERE A BODY OF JUDICIAL OPINION
WHICH BIDS US FIND IN THE UNBRIDLED EXCESS OF A STATE OFFICER,
CONSTITUTING A CRIME UNDER HIS STATE LAW, ACTION TAKEN "UNDER COLOR OF
LAW" WHICH FEDERAL LAW FORBIDS. 

ONLY TWO REPORTED CASES CONSIDERED SEC. 20 BEFORE UNITED STATES V.
CLASSIC, 313 U.S. 299.  IN UNITED STATES V. BUNTIN, 10 F. 730, A
TEACHER, IN RELIANCE ON A STATE STATUTE, REFUSED ADMITTANCE TO A
COLORED CHILD, WHILE IN UNITED STATES V. STONE, 188 F. 836, ELECTION
SUPERVISORS WHO ACTED UNDER A MARYLAND ELECTION LAW WERE HELD TO ACT
"UNDER COLOR OF LAW."  IN NEITHER CASE WAS THERE A PATENT VIOLATION OF
STATE LAW BUT RATHER AN ATTEMPT AT JUSTIFICATION UNDER STATE LAW. 
UNITED STATES V. CLASSIC, SUPRA, IS THE ONLY DECISION THAT LOOKS THE
OTHER WAY.  IN THAT CASE PRIMARY ELECTION OFFICIALS WERE HELD TO HAVE
ACTED "UNDER COLOR OF LAW" EVEN THOUGH THE ACTS COMPLAINED OF AS A
FEDERAL OFFENSE WERE LIKEWISE CONDEMNED BY LOUISIANA LAW.  THE TRUTH OF
THE MATTER IS THAT THE FOCUS OF ATTENTION IN THE CLASSIC CASE WAS NOT
OUR PRESENT PROBLEM, BUT WAS THE RELATION OF PRIMARIES TO THE
PROTECTION OF THE ELECTORAL PROCESS UNDER THE UNITED STATES
CONSTITUTION.  THE VIEWS IN THE CLASSIC CASE THUS REACHED OUGHT NOT TO
STAND IN THE WAY OF A DECISION ON THE MERITS OF A QUESTION WHICH HAS
NOW FOR THE FIRST TIME BEEN FULLY EXPLORED AND ITS IMPLICATIONS FOR THE
WORKINGS OF OUR FEDERAL SYSTEM HAVE BEEN ADEQUATELY REVEALED. 

IT WAS ASSUMED QUITE NEEDLESSLY IN THE CLASSIC CASE THAT THE SCOPE OF
SEC. 20 WAS COEXTENSIVE WITH THE FOURTEENTH AMENDMENT.  BECAUSE THE
WEIGHT OF THE CASE WAS ELSEWHERE, WE DID NOT PURSUE THE DIFFERENCE
BETWEEN THE POWER GRANTED TO CONGRESS BY THAT AMENDMENT TO BAR "ANY
STATE" FROM DEPRIVING PERSONS OF THE NEWLY CREATED CONSTITUTIONAL
RIGHTS AND THE LIMITED EXTENT TO WHICH CONGRESS EXERCISED THAT POWER,
IN WHAT IS NOW SEC. 20, BY MAKING IT AN OFFENSE FOR ONE ACTING "UNDER
COLOR OF ANY LAW" TO DEPRIVE ANOTHER OF SUCH CONSTITUTIONAL RIGHTS.  IT
MAY WELL BE THAT CONGRESS COULD, WITHIN THE BOUNDS OF THE FOURTEENTH
AMENDMENT, TREAT ACTION TAKEN BY A STATE OFFICIAL EVEN THOUGH IN
DEFIANCE OF STATE LAW AND NOT CONDONED BY ULTIMATE STATE AUTHORITY AS
THE ACTION OF "A STATE."  IT HAS NEVER BEEN SATISFACTORILY EXPLAINED
HOW A STATE CAN BE SAID TO DEPRIVE A PERSON OF LIBERTY OR PROPERTY
WITHOUT DUE PROCESS OF LAW WHEN THE FOUNDATION OF THE CLAIM IS THAT A
MINOR OFFICIAL HAS DISOBEYED THE AUTHENTIC COMMAND OF HIS STATE.  SEE
RAYMOND V. CHICAGO TRACTION CO., 207 U.S. 20, 40, 41.  ALTHOUGH ACTION
TAKEN UNDER SUCH CIRCUMSTANCES HAS BEEN DEEMED TO BE DEPRIVATION BY A
"STATE" OF RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT FOR PURPOSES
OF FEDERAL JURISDICTION, THE DOCTRINE HAS HAD A FLUCTUATING AND DUBIOUS
HISTORY.  COMPARE BARNEY V. CITY OF NEW YORK, 193 U.S. 430, WITH
RAYMOND V. CHICAGO TRACTION CO., SUPRA; MEMPHIS V. CUMBERLAND TELEPHONE
CO., 218 U.S. 624, WITH HOME TEL. & TEL. CO. V. LOS ANGELES, 227 U.S.
278.  BARNEY V. CITY OF NEW YORK, SUPRA, WHICH RULED OTHERWISE,
ALTHOUGH QUESTIONED, HAS NEVER BEEN OVERRULED.  SEE, FOR INSTANCE, IOWA
DES MOINES BANK V. BENNETT, 284 U.S. 239, 246-247, AND SNOWDEN V.
HUGHES, 321 U.S. 1, 13.  FN1 

BUT ASSUMING UNRESERVEDLY THAT CONDUCT SUCH AS THAT NOW BEFORE US,
PERPETRATED BY STATE OFFICERS IN FLAGRANT DEFIANCE OF STATE LAW, MAY BE
ATTRIBUTED TO THE STATE UNDER THE FOURTEENTH AMENDMENT, THIS DOES NOT
MAKE IT ACTION UNDER "COLOR OF ANY LAW."  SECTION 20 IS MUCH NARROWER
THAN THE POWER OF CONGRESS.  EVEN THOUGH CONGRESS MIGHT HAVE SWEPT
WITHIN THE FEDERAL CRIMINAL LAW ANY ACTION THAT COULD BE DEEMED WITHIN
THE VAST REACH OF THE FOURTEENTH AMENDMENT, CONGRESS DID NOT DO SO. THE
PRESUPPOSITIONS OF OUR FEDERAL SYSTEM, THE PRONOUNCEMENTS OF THE
STATESMEN WHO SHAPED THIS LEGISLATION, AND THE NORMAL MEANING OF
LANGUAGE POWERFULLY COUNSEL AGAINST ATTRIBUTING TO CONGRESS INTRUSION
INTO THE SPHERE OF CRIMINAL LAW TRADITIONALLY AND NATURALLY RESERVED
FOR THE STATES ALONE.  WHEN DUE ACCOUNT IS TAKEN OF THE CONSIDERATIONS
THAT HAVE HERETOFORE CONTROLLED THE POLITICAL AND LEGAL RELATIONS
BETWEEN THE STATES AND THE NATIONAL GOVERNMENT, THERE IS NOT THE
SLIGHTEST WARRANT IN THE REASON OF THINGS FOR TORTURING LANGUAGE
PLAINLY DESIGNED FOR NULLIFYING A CLAIM OF ACTING UNDER A STATE LAW
THAT CONFLICTS WITH THE CONSTITUTION SO AS TO APPLY TO SITUATIONS WHERE
STATE LAW IS IN CONFORMITY WITH THE CONSTITUTION AND LOCAL MISCONDUCT
IS IN UNDISPUTED VIOLATION OF THAT STATE LAW.  IN THE ABSENCE OF CLEAR
DIRECTION BY CONGRESS WE SHOULD LEAVE TO THE STATES THE ENFORCEMENT OF
THEIR CRIMINAL LAW, AND NOT RELIEVE STATES OF THE RESPONSIBILITY FOR
VINDICATING WRONGDOING THAT IS ESSENTIALLY LOCAL OR WEAKEN THE HABITS
OF LOCAL LAW ENFORCEMENT BY TEMPTING RELIANCE ON FEDERAL AUTHORITY FOR
AN OCCASIONAL UNPLEASANT TASK OF LOCAL ENFORCEMENT. 

                     II 

IN OUR VIEW THEN, THE GOVERNMENT'S ATTEMPT TO BRING AN UNJUSTIFIABLE
HOMICIDE BY LOCAL GEORGIA PEACE OFFICERS WITHIN THE DEFINED LIMITS OF
THE FEDERAL CRIMINAL CODE CANNOT CLEAR THE FIRST HURDLE OF THE LEGAL
REQUIREMENT THAT THAT WHICH THESE OFFICERS ARE CHARGED WITH DOING MUST
BE DONE UNDER COLOR OF GEORGIA LAW. 

SINCE THE MAJORITY OF THE COURT DO NOT SHARE THIS CONVICTION THAT THE
ACTION OF THE GEORGIA PEACE OFFICERS WAS NOT PERPETRATED UNDER COLOR OF
LAW, WE, TOO, MUST CONSIDER THE CONSTITUTIONALITY OF SEC. 20.  ALL BUT
TWO MEMBERS OF THE COURT APPARENTLY AGREE THAT INSOFAR AS SEC. 20
PURPORTS TO SUBJECT MEN TO PUNISHMENT FOR CRIME IT FAILS TO DEFINE WHAT
CONDUCT IS MADE CRIMINAL.  AS MISUSE OF THE CRIMINAL MACHINERY IS ONE
OF THE MOST POTENT AND FAMILIAR INSTRUMENTS OF ARBITRARY GOVERNMENT,
PROPER REGARD FOR THE RATIONAL REQUIREMENT OF DEFINITENESS IN CRIMINAL
STATUTES IS BASIC TO CIVIL LIBERTIES.  AS SUCH IT IS INCLUDED IN THE
CONSTITUTIONAL GUARANTY OF DUE PROCESS OF LAW.  BUT FOUR MEMBERS OF THE
COURT ARE OF THE OPINION THAT THIS PLAIN CONSTITUTIONAL PRINCIPLE OF
DEFINITENESS IN CRIMINAL STATUTES MAY BE REPLACED BY AN ELABORATE
SCHEME OF CONSTITUTIONAL EXEGESIS WHEREBY THAT WHICH CONGRESS HAS NOT
DEFINED THE COURTS CAN DEFINE FROM TIME TO TIME, WITH VARYING AND
CONFLICTING DEFINITENESS IN THE DECISIONS, AND THAT, IN ANY EVENT, AN
UNDEFINED RANGE OF CONDUCT MAY BECOME SUFFICIENTLY DEFINITE IF ONLY
SUCH UNDEFINED CONDUCT IS COMMITTED "WILLFULLY." 

IN SUBJECTING TO PUNISHMENT "DEPRIVATION OF ANY RIGHTS, PRIVILEGES,
OR IMMUNITIES SECURED OR PROTECTED BY THE CONSTITUTION AND LAWS OF THE
UNITED STATES," SEC. 20 ON ITS FACE MAKES CRIMINAL DEPRIVATION OF THE
WHOLE RANGE OF UNDEFINED APPEALS TO THE CONSTITUTION.  SUCH IS THE TRUE
SCOPE OF THE FORBIDDEN CONDUCT.  ITS DOMAIN IS UNBOUNDED AND THEREFORE
TOO INDEFINITE.  CRIMINAL STATUTES MUST HAVE MORE OR LESS SPECIFIC
CONTOURS.  THIS HAS NONE. 

TO SUGGEST THAT THE "RIGHT" DEPRIVATION OF WHICH IS MADE CRIMINAL BY
SEC. 20 "HAS BEEN MADE SPECIFIC EITHER BY THE EXPRESS TERMS OF THE
CONSTITUTION OR BY DECISIONS INTERPRETING IT" HARDLY ADDS DEFINITENESS
BEYOND THAT OF THE STATUTE'S OWN TERMS.  WHAT PROVISION IS TO BE DEEMED
"SPECIFIC" "BY THE EXPRESS TERMS OF THE CONSTITUTION" AND WHAT NOT
"SPECIFIC"?  IF THE FIRST AMENDMENT SAFEGUARDING FREE SPEECH BE A
"SPECIFIC" PROVISION, WHAT ABOUT THE FOURTH?  "ALL UNREASONABLE
SEARCHES AND SEIZURES ARE ABSOLUTELY FORBIDDEN BY THE FOURTH
AMENDMENT."  NATHANSON V. UNITED STATES, 290 U.S. 41, 46.  SURELY EACH
IS AMONG THE "RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY
THE CONSTITUTION," DEPRIVATION OF WHICH IS A CRIME UNDER SEC. 20.  IN
ANY EVENT, WHAT ARE THE CRITERIA BY WHICH TO DETERMINE WHAT EXPRESS
PROVISIONS OF THE CONSTITUTION ARE "SPECIFIC" AND WHAT PROVISIONS ARE
NOT "SPECIFIC"?  AND IF THE TERMS OF SEC. 20 IN AND OF THEMSELVES ARE
LACKING IN SUFFICIENT DEFINITENESS FOR A CRIMINAL STATUTE, RESTRICTION
WITHIN THE FRAMEWORK OF "DECISIONS INTERPRETING" THE CONSTITUTION
CANNOT SHOW THE NECESSARY DEFINITENESS.  THE ILLUSTRATIONS GIVEN IN THE
COURT'S OPINION UNDERLINE THE INESCAPABLE VAGUENESS DUE TO THE DOUBTS
AND FLUCTUATING CHARACTER OF DECISIONS INTERPRETING THE CONSTITUTION. 

THIS INTRINSIC VAGUENESS OF THE TERMS OF SEC. 20 SURELY CANNOT BE
REMOVED BY MAKING THE STATUTE APPLICABLE ONLY WHERE THE DEFENDANT HAS
THE "REQUISITE BAD PURPOSE."  DOES THAT NOT AMOUNT TO SAYING THAT THE
BLACK HEART OF THE DEFENDANT ENABLES HIM TO KNOW WHAT ARE THE
CONSTITUTIONAL RIGHTS DEPRIVATION OF WHICH THE STATUTE FORBIDS,
ALTHOUGH WE AS JUDGES ARE NOT ABLE TO DEFINE THEIR CLASSES OR THEIR
LIMITS, OR, AT LEAST, ARE NOT PREPARED TO STATE WHAT THEY ARE UNLESS IT
BE TO SAY THAT SEC. 20 PROTECTS WHATEVER RIGHTS THE CONSTITUTION
PROTECTS? 

UNDER THE CONSTRUCTION PROPOSED FOR SEC. 20, IN ORDER FOR A JURY TO
CONVICT, IT WOULD BE NECESSARY "TO FIND THAT PETITIONERS HAD THE
PURPOSE TO DEPRIVE THE PRISONER OF A CONSTITUTIONAL RIGHT, E.G. THE
RIGHT TO BE TRIED BY A COURT RATHER THAN BY ORDEAL."  THERE IS NO
QUESTION THAT CONGRESS COULD PROVIDE FOR A PENALTY AGAINST DEPRIVATION
BY STATE OFFICIALS "ACTING UNDER COLOR OF ANY LAW" OF "THE RIGHT TO BE
TRIED BY A COURT RATHER THAN BY ORDEAL."  BUT WE CANNOT RESTRICT THE
PROBLEM RAISED BY SEC. 20 TO THE VALIDITY OF PENALIZING A DEPRIVATION
OF THIS SPECIFIC CONSTITUTIONAL RIGHT.  WE ARE DEALING WITH THE REACH
OF THE STATUTE, FOR CONGRESS HAS NOT PARTICULARIZED AS THE COURT NOW
PARTICULARIZES.  SUCH TRANSFORMING INTERPOLATION IS NOT
INTERPRETATION.  AND THAT IS RECOGNIZED BY THE SENTENCE JUST QUOTED,
NAMELY, THAT THE JURY IN ORDER TO CONVICT UNDER SEC. 20 MUST FIND THAT
AN ACCUSED "HAD THE PURPOSE TO DEPRIVE" ANOTHER "OF A CONSTITUTIONAL
RIGHT," GIVING THIS SPECIFIC CONSTITUTIONAL RIGHT AS "E.G.," BY WAY OF
ILLUSTRATION.  HENCE A JUDGE WOULD HAVE TO DEFINE TO THE JURY WHAT THE
CONSTITUTIONAL RIGHTS ARE DEPRIVATION OF WHICH IS PROHIBITED BY SEC.
20.  IF THAT IS A LEGAL QUESTION AS TO WHICH THE JURY MUST TAKE
INSTRUCTION FROM THE COURT, AT LEAST THE TRIAL COURT MUST BE POSSESSED
OF THE MEANS OF KNOWING WITH SUFFICIENT DEFINITENESS THE RANGE OF
"RIGHTS" THAT ARE "CONSTITUTIONAL."  THE COURT CAN HARDLY BE HELPED OUT
IN DETERMINING THAT LEGAL QUESTION BY LEAVING IT TO THE JURY TO DECIDE
WHETHER THE ACT WAS "WILLFULLY" COMMITTED.    IT IS NOT CONCEIVABLE
THAT THIS COURT WOULD FIND THAT A STATUTE CAST IN THE FOLLOWING TERMS
WOULD SATISFY THE CONSTITUTIONAL REQUIREMENT FOR DEFINITENESS: 

"WHOEVER WILLFULLY COMMITS ANY ACT WHICH THE SUPREME COURT OF THE
UNITED STATES SHALL FIND TO BE A DEPRIVATION OF ANY RIGHT, PRIVILEGE,
OR IMMUNITY SECURED OR PROTECTED BY THE CONSTITUTION SHALL BE
IMPRISONED NOT MORE THAN, ETC."  IF SUCH A STATUTE WOULD FALL FOR
UNCERTAINTY, WHEREIN DOES SEC. 20 AS CONSTRUED BY THE COURT DIFFER AND
HOW CAN IT SURVIVE?    IT WAS SETTLED EARLY IN OUR HISTORY THAT
PROSECUTIONS IN THE FEDERAL COURTS COULD NOT BE FOUNDED ON ANY
UNDEFINED BODY OF SO-CALLED COMMON LAW.  UNITED STATES V. HUDSON, 7
CRANCH 32; UNITED STATES V. GOODING, 12 WHEAT.  460.  FEDERAL
PROSECUTIONS MUST BE FOUNDED ON DELINEATION BY CONGRESS OF WHAT IS MADE
CRIMINAL.  TO BASE FEDERAL PROSECUTIONS ON THE SHIFTING AND
INDETERMINATE DECISIONS OF COURTS IS TO SANCTION PROSECUTIONS FOR
CRIMES BASED ON DEFINITIONS MADE BY COURTS.  THIS IS TANTAMOUNT TO
CREATING A NEW BODY OF FEDERAL CRIMINAL COMMON LAW. 

IT CANNOT BE TOO OFTEN EMPHASIZED THAT AS BASIC A DIFFERENCE AS ANY
BETWEEN OUR NOTIONS OF LAW AND THOSE OF LEGAL SYSTEMS NOT FOUNDED ON
ANGLO-AMERICAN CONCEPTIONS OF LIBERTY IS THAT CRIMES MUST BE DEFINED BY
THE LEGISLATURE.  THE LEGISLATURE DOES NOT MEET THIS REQUIREMENT BY
ISSUING A BLANK CHECK TO COURTS FOR THEIR RETROSPECTIVE FINDING THAT
SOME ACT DONE IN THE PAST COMES WITHIN THE CONTINGENCIES AND CONFLICTS
THAT INHERE IN ASCERTAINING THE CONTENT OF THE FOURTEENTH AMENDMENT BY
"THE GRADUAL PROCESS OF JUDICIAL INCLUSION AND EXCLUSION."  DAVIDSON V.
NEW ORLEANS, 96 U.S. 97, 104.  THEREFORE, TO SUBJECT TO CRIMINAL
PUNISHMENT CONDUCT THAT THE COURT MAY EVENTUALLY FIND TO HAVE BEEN
WITHIN THE SCOPE OR THE LIMITATIONS OF A LEGAL DOCTRINE UNDERLYING A
DECISION IS TO SATISFY THE VITAL REQUIREMENT FOR DEFINITENESS THROUGH
AN APPEARANCE OF DEFINITENESS IN THE PROCESS OF CONSTITUTIONAL
ADJUDICATION WHICH EVERY STUDENT OF LAW KNOWS NOT TO COMPORT WITH
ACTUALITY.  WHAT THE CONSTITUTION REQUIRES IS A DEFINITENESS DEFINED BY
THE LEGISLATURE, NOT ONE ARGUMENTATIVELY SPELLED OUT THROUGH THE
JUDICIAL PROCESS WHICH, PRECISELY BECAUSE IT IS A PROCESS, CAN NOT
AVOID INCOMPLETENESS.  A DEFINITENESS WHICH REQUIRES SO MUCH SUBTLETY
TO EXPOUND IS HARDLY DEFINITE. 

IT IS AS NOVEL AS IT IS AN INADMISSIBLE PRINCIPLE THAT A CRIMINAL
STATUTE OF INDEFINITE SCOPE CAN BE RENDERED DEFINITE BY REQUIRING THAT
A PERSON "WILLFULLY" COMMIT WHAT CONGRESS HAS NOT DEFINED BUT WHICH, IF
CONGRESS HAD DEFINED, COULD CONSTITUTIONALLY BE OUTLAWED.  OF COURSE
CONGRESS CAN PROHIBIT THE DEPRIVATION OF ENUMERATED CONSTITUTIONAL
RIGHTS.  BUT IF CONGRESS MAKES IT A CRIME TO DEPRIVE ANOTHER OF ANY
RIGHT PROTECTED BY THE CONSTITUTION - AND THAT IS WHAT SEC. 20 DOES -
THIS COURT CANNOT ESCAPE FACING DECISIONS AS TO WHAT CONSTITUTIONAL
RIGHTS ARE COVERED BY SEC. 20 BY SAYING THAT IN ANY EVENT, WHATEVER
THEY ARE, THEY MUST BE TAKEN AWAY "WILLFULLY."  IT HAS NOT BEEN
EXPLAINED HOW ALL THE CONSIDERATIONS OF UNCONSTITUTIONAL VAGUENESS
WHICH ARE LAID BARE IN THE EARLY PART OF THE COURT'S OPINION EVAPORATE
BY SUGGESTING THAT WHAT IS OTHERWISE TOO VAGUELY DEFINED MUST BE
"WILLFULLY" COMMITTED. 

IN THE EARLY LAW AN UNDESIRED EVENT ATTRIBUTABLE TO A PARTICULAR
PERSON WAS PUNISHED REGARDLESS OF THE STATE OF MIND OF THE ACTOR.  THE
RATIONAL DEVELOPMENT OF CRIMINAL LIABILITY ADDED A MENTAL REQUIREMENT
FOR CRIMINAL CULPABILITY, EXCEPT IN A LIMITED CLASS OF CASES NOT HERE
RELEVANT.  (SEE UNITED STATES V. BALINT, 258 U.S. 250.)  THAT REQUISITE
MENTAL INGREDIENT IS EXPRESSED IN VARIOUS FORMS IN CRIMINAL STATUTES,
OF WHICH THE WORD "WILLFULLY" IS ONE OF THE MOST COMMON.  WHEN A
CRIMINAL STATUTE PROHIBITS SOMETHING FROM BEING "WILLFULLY" DONE,
"WILLFULLY" NEVER DEFINES THE PHYSICAL CONDUCT OR THE RESULT THE
BRINGING OF WHICH TO PASS IS PROSCRIBED.  "WILLFULLY" MERELY ADDS A
CERTAIN STATE OF MIND AS A PREREQUISITE TO CRIMINAL RESPONSIBILITY FOR
THE OTHERWISE PROSCRIBED ACT.  IF A STATUTE DOES NOT SATISFY THE DUE
PROCESS REQUIREMENT OF GIVING DECENT ADVANCE NOTICE OF WHAT IT IS
WHICH, IF HAPPENING, WILL BE VISITED WITH PUNISHMENT, SO THAT MEN MAY
PRESUMABLY HAVE AN OPPORTUNITY TO AVOID THE HAPPENING (SEE
INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S. 216; COLLINS V.
KENTUCKY, 234 U.S. 634; UNITED STATES V. COHEN GROCERY CO., 255 U.S.
81; CLINE V. FRINK DAIRY CO., 274 U.S. 445), THEN "WILLFULLY" BRINGING
TO PASS SUCH AN UNDEFINED AND TOO UNCERTAIN EVENT CANNOT MAKE IT
SUFFICIENTLY DEFINITE AND ASCERTAINABLE.  "WILLFULLY" DOING SOMETHING
THAT IS FORBIDDEN, WHEN THAT SOMETHING IS NOT SUFFICIENTLY DEFINED
ACCORDING TO THE GENERAL CONCEPTIONS OF REQUISITE CERTAINTY IN OUR
CRIMINAL LAW, IS NOT RENDERED SUFFICIENTLY DEFINITE BY THAT UNKNOWABLE
HAVING BEEN DONE "WILLFULLY."  IT IS TRUE ALSO OF A STATUTE THAT IT
CANNOT LIFT ITSELF UP BY ITS BOOTSTRAPS. 

CERTAINLY THESE CONSIDERATIONS OF VAGUENESS IMPLY UNCONSTITUTIONALITY
OF THE ACT AT LEAST UNTIL 1909.  FOR IT WAS NOT UNTIL 1909 THAT THE
WORD "WILLFULLY" WAS INTRODUCED.  BUT THE LEGISLATIVE HISTORY OF THAT
ADDITION AFFORDS NO EVIDENCE WHATEVER THAT ANYBODY THOUGHT THAT
"WILLFULLY" WAS ADDED TO SAVE THE STATUTE FROM UNCONSTITUTIONALITY. 
THE JOINT COMMITTEE OF CONGRESS ON THE REVISION OF LAWS (WHICH
SPONSORED WHAT BECAME THE CRIMINAL CODE) GIVES NO SUCH INDICATION, FOR
IT DID NOT PROPOSE "WILLFULLY"; THE REPORTS IN NEITHER HOUSE OF
CONGRESS SHED ANY LIGHT ON THE SUBJECT, FOR THE BILL IN NEITHER HOUSE
PROPOSED THAT "WILLFULLY" BE ADDED; NO SPEECH BY ANYONE IN CHARGE OF
THE BILL IN EITHER HOUSE SHEDS ANY LIGHT ON THE SUBJECT; THE REPORT OF
THE CONFERENCE COMMITTEE, FROM WHICH "WILLFULLY" FOR THE FIRST TIME
EMERGES, GIVES NO EXPLANATION WHATEVER; AND THE ONLY REFERENCE WE HAVE
IS THAT TO WHICH THE COURT'S OPINION REFERS (43 CONG. REC., P. 3599). 
AND THAT IS AN UNILLUMINATING REMARK BY SENATOR DANIEL OF VIRGINIA, WHO
HAD NO RESPONSIBILITY FOR THE MEASURE AND WHO MADE THE REMARK IN THE
COURSE OF AN EXCHANGE WITH SENATOR HEYBURN OF IDAHO, WHO WAS IN CHARGE
OF THE MEASURE AND WHO COMPLAINED OF AN ALLEGED ATTITUDE ON THE PART OF
SOUTHERN MEMBERS TO FILIBUSTER AGAINST THE BILL BECAUSE OF THE
RETENTION OF RECONSTRUCTION LEGISLATION. 

ALL THIS BEARS NOT MERELY ON THE SIGNIFICANCE OF "WILLFULLY" IN A
PRESUMABLY OTHERWISE UNCONSTITUTIONALLY VAGUE STATUTE.  IT ALSO BEARS
ON THE FACT THAT, FOR THE PURPOSE OF CONSTITUTIONALITY, WE ARE DEALING
NOT WITH AN OLD STATUTE THAT GOES BACK TO THE RECONSTRUCTION DAYS, BUT
ONLY TO 1909. 

NOR CAN SUPPORT BE FOUND IN THE OPINIONS OF THIS COURT FOR THE
PROPOSITION THAT "WILLFULLY" CAN MAKE DEFINITE PROHIBITIONS OTHERWISE
INDEFINITE. 

IN OMAECHEVARRIA V. IDAHO, 246 U.S. 343, THE COURT SUSTAINED AN IDAHO
STATUTE PROHIBITING ANY PERSON HAVING CHARGE OF SHEEP FROM ALLOWING
THEM TO GRAZE "UPON ANY RANGE USUALLY OCCUPIED BY ANY CATTLE GROWER." 
THE STATUTE WAS ATTACKED UNDER THE DUE PROCESS CLAUSE IN THAT IT FAILED
TO PROVIDE FOR THE ASCERTAINMENT OF THE BOUNDARIES OF A "RANGE" OR FOR
DETERMINING WHAT LENGTH OF TIME IS NECESSARY TO CONSTITUTE A PRIOR
OCCUPATION A "USUAL" ONE WITHIN THE MEANING OF THE ACT.  THIS ATTACK
UPON THE IDAHO STATUTE WAS REJECTED AND FOR THE FOLLOWING REASONS: 

"MEN FAMILIAR WITH RANGE CONDITIONS AND DESIROUS OF OBSERVING THE LAW
WILL HAVE LITTLE DIFFICULTY IN DETERMINING WHAT IS PROHIBITED BY IT.
SIMILAR EXPRESSIONS ARE COMMON IN THE CRIMINAL STATUTES OF OTHER
(GRAZING) STATES.  THIS STATUTE PRESENTS NO GREATER UNCERTAINTY OR
DIFFICULTY, IN APPLICATION TO NECESSARILY VARYING FACTS, THAN HAS BEEN
REPEATEDLY SANCTIONED BY THIS COURT."  246 U.S. AT 348. 

CERTAINLY THERE IS NO COMPARISON BETWEEN A STATUTE EMPLOYING THE
CONCEPT OF A WESTERN RANGE AND A STATUTE OUTLAWING THE WHOLE RANGE OF
CONSTITUTIONAL RIGHTS, UNASCERTAINED IF NOT UNASCERTAINABLE. 

TO BE SURE, THE OPINION OF MR. JUSTICE BRANDEIS ALSO BROUGHT TO ITS
SUPPORT SEC. 6314 OF REVISED CODES OF IDAHO WHICH PROVIDED THAT "IN
EVERY CRIME OR PUBLIC OFFENSE THERE MUST EXIST A UNION, OR JOINT
OPERATION, OF ACT AND INTENT, OR CRIMINAL NEGLIGENCE."  BUT THIS IS
MERELY AN IDAHO PHRASING OF THE CONVENTIONAL SAW IN TEXT BOOKS AND
DECISIONS DEALING WITH CRIMINAL LAW THAT THERE MUST BE A MENS REA FOR
EVERY OFFENSE.  IN OTHER WORDS, A GUILTY STATE OF MIND IS USUALLY
REQUIRED BEFORE ONE CAN BE PUNISHED FOR AN OUTLAWED ACT.  BUT THE
DEFINITION OF THE OUTLAWED ACT IS NOT DERIVED FROM THE STATE OF MIND
WITH WHICH IT MUST BE COMMITTED.  ALL THAT MR. JUSTICE BRANDEIS MEANT
BY "INDEFINITENESS" IN THE CONTEXT OF THIS STATUTE WAS THE CLAIM THAT
THE STATUTE DID NOT GIVE ENOUGH NOTICE AS TO THE ACT WHICH WAS
OUTLAWED.  BUT NOTICE WAS GIVEN BY THE COMMON KNOWLEDGE OF WHAT A
"RANGE" WAS, AND FOR GOOD MEASURE HE SUGGESTED THAT UNDER THE ACT A MAN
WOULD HAVE TO KNOW THAT HE WAS GRAZING SHEEP WHERE HE HAD NO BUSINESS
TO GRAZE THEM.  THERE IS NO ANALOGY BETWEEN THE FACE OF THIS IDAHO
STATUTE AND THE FACE OF OUR STATUTE.  THE ESSENTIAL DIFFERENCE IS THAT
IN THE IDAHO STATUTE THE OUTLAWED ACT WAS DEFINED; IN SEC. 20 IT IS
UNDEFINED. 

IN HYGRADE PROVISION CO. V. SHERMAN, 266 U.S. 497, NEW YORK PUNISHED
THE MISREPRESENTATION OF MEAT AS "KOSHER" OR AS SATISFYING "ORTHODOX
HEBREW RELIGIOUS REQUIREMENTS."  HERE, TOO, THE OBJECTION OF
INDEFINITENESS WAS REJECTED BY THIS COURT.  THE OBJECTION BORDERED ON
THE FRIVOLOUS.  IN THIS CASE, TOO, THE OPINION OF THE COURT, AS IS THE
WAY OF OPINIONS, SOFTENED THE BLOW BY SAYING THAT THERE WAS NO DANGER
OF ANYONE BEING CONVICTED FOR NOT KNOWING WHAT HE WAS DOING, FOR IT
REQUIRED HIM TO HAVE CONSCIOUSNESS THAT HE WAS OFFERING MEAT AS
"KOSHER" MEAT WHEN HE KNEW VERY WELL THAT IT WAS NOT. 

THUS IN BOTH THESE CASES THIS COURT WAS SAYING THAT THE CRIMINAL
STATUTES UNDER SCRUTINY, ALTHOUGH VERY SPECIFIC, DID NOT EXPOSE ANY
INNOCENT PERSON TO THE HAZARDS OF UNFAIR CONVICTION, BECAUSE NOT MERELY
DID THE LEGISLATION OUTLAW SPECIFICALLY DEFINED CONDUCT, BUT GUILTY
KNOWLEDGE OF SUCH DEFINED CRIMINALITY WAS ALSO REQUIRED.  IT THEREBY
TOOK THE LEGISLATION OUTSIDE THE SCOPE OF UNITED STATES V. BALINT, 258
U.S. 250, IN WHICH THE COURT SUSTAINED THE PROSECUTION OF ONE WHOLLY
INNOCENT OF KNOWLEDGE OF THE ACT, COMMISSION OF WHICH THE STATUTE
EXPLICITLY FORBADE. 

THIS CASE DOES NOT INVOLVE DENYING ADEQUATE POWER TO CONGRESS.  THERE
IS NO DIFFICULTY IN PASSING EFFECTIVE LEGISLATION FOR THE PROTECTION OF
CIVIL RIGHTS AGAINST IMPROPER STATE ACTION.  WHAT WE ARE CONCERNED WITH
HERE IS SOMETHING BASIC IN A DEMOCRATIC SOCIETY, NAMELY, THE AVOIDANCE
OF THE INJUSTICE OF PROHIBITING CONDUCT IN TERMS SO VAGUE AS TO MAKE
THE UNDERSTANDING OF WHAT IS PROSCRIBED A GUESS-WORK TOO DIFFICULT FOR
CONFIDENT JUDGMENT EVEN FOR THE JUDGES OF THE HIGHEST COURT IN THE
LAND. 

III 

BY HOLDING, IN THIS CASE, THAT STATE OFFICIALS WHO VIOLATE STATE LAW
NEVERTHELESS ACT "UNDER COLOR OF" STATE LAW, AND BY ESTABLISHING AS
FEDERAL CRIMES VIOLATIONS OF THE VAST, UNDISCLOSED RANGE OF THE
FOURTEENTH AMENDMENT, THIS COURT NOW CREATES NEW DELICATE AND
COMPLICATED PROBLEMS FOR THE ENFORCEMENT OF THE CRIMINAL LAW.  THE
ANSWERS GIVEN TO THESE PROBLEMS, IN VIEW OF THE TREMENDOUS SCOPE OF
POTENTIAL OFFENSES AGAINST THE FOURTEENTH AMENDMENT, ARE BOUND TO
PRODUCE A CONFUSION DETRIMENTAL TO THE ADMINISTRATION OF CRIMINAL
JUSTICE. 

THE GOVERNMENT RECOGNIZES THAT "THIS IS THE FIRST CASE BROUGHT BEFORE
THIS COURT IN WHICH SEC. 20 HAS BEEN APPLIED TO DEPRIVATIONS OF RIGHTS
SECURED BY THE FOURTEENTH AMENDMENT."  IT IS NOT DENIED THAT THE
GOVERNMENT'S CONTENTION WOULD MAKE A POTENTIAL OFFENDER AGAINST THIS
ACT OF ANY STATE OFFICIAL WHO AS A JUDGE ADMITTED A CONFESSION OF
CRIME, OR WHO AS JUDGE OF A STATE COURT OF LAST RESORT SUSTAINED
ADMISSION OF A CONFESSION, WHICH WE SHOULD LATER HOLD CONSTITUTIONALLY
INADMISSIBLE, OR WHO AS A PUBLIC SERVICE COMMISSIONER ISSUED A
REGULATORY ORDER WHICH WE SHOULD LATER HOLD DENIED DUE PROCESS OR WHO
AS A MUNICIPAL OFFICER STOPPED ANY CONDUCT WE LATER SHOULD HOLD TO BE
CONSTITUTIONALLY PROTECTED.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT HAS A CONTENT THE SCOPE OF WHICH THIS COURT DETERMINES ONLY
AS CASES COME HERE FROM TIME TO TIME AND THEN NOT WITHOUT CLOSE
DIVISION AND REVERSALS OF POSITION.  SUCH A DUBIOUS CONSTRUCTION OF A
CRIMINAL STATUTE SHOULD NOT BE MADE UNLESS LANGUAGE COMPELS. 

THAT SUCH A PLIABLE INSTRUMENT OF PROSECUTION IS TO BE FEARED APPEARS
TO BE RECOGNIZED BY THE GOVERNMENT.  IT URGES THREE SAFEGUARDS AGAINST
ABUSE OF THE BROAD POWERS OF PROSECUTION FOR WHICH IT CONTENDS.  (1)
CONGRESS, IT SAYS, WILL SUPERVISE THE DEPARTMENT'S POLICIES AND CURB
EXCESSES BY WITHDRAWAL OF FUNDS.  IT SURELY IS CASTING AN IMPOSSIBLE
BURDEN UPON CONGRESS TO EXPECT IT TO POLICE THE PROPRIETY OF
PROSECUTIONS BY THE DEPARTMENT OF JUSTICE.  NOR WOULD SUCH DETAILED
OVERSIGHT BY CONGRESS MAKE FOR THE EFFECTIVE ADMINISTRATION OF THE
CRIMINAL LAW.  (2) THE GOVERNMENT FURTHER URGES THAT, SINCE
PROSECUTIONS MUST BE BROUGHT IN THE DISTRICT WHERE THE CRIME WAS
COMMITTED, THE JUDGE AND JURORS OF THAT LOCALITY CAN BE DEPENDED UPON
TO PROTECT AGAINST FEDERAL INTERFERENCE WITH STATE LAW ENFORCEMENT. 
SUCH A SUGGESTION WOULD, FOR PRACTICAL PURPOSES, TRANSFER THE FUNCTIONS
OF THIS COURT, WHICH ADJUDICATES QUESTIONS CONCERNING THE PROPER
RELATIONSHIP BETWEEN THE FEDERAL AND STATE GOVERNMENTS, TO JURORS WHOSE
FUNCTION IS TO RESOLVE FACTUAL QUESTIONS.  MOREOVER, IF FEDERAL AND
STATE PROSECUTIONS ARE SUBJECT TO THE SAME INFLUENCES, IT IS DIFFICULT
TO SEE WHAT NEED THERE IS FOR TAKING THE PROSECUTION OUT OF THE HANDS
OF THE STATE.  AFTER ALL, GEORGIA CITIZENS SITTING AS A FEDERAL GRAND
JURY INDICTED AND OTHER GEORGIA CITIZENS SITTING AS A FEDERAL TRIAL
JURY CONVICTED SCREWS AND HIS ASSOCIATES; AND IT WAS A GEORGIA JUDGE
WHO CHARGED MORE STRONGLY AGAINST THEM THAN THIS COURT THINKS HE SHOULD
HAVE.    FINALLY, THE DEPARTMENT OF JUSTICE GIVES US THIS ASSURANCE OF
ITS MODERATION: 

"(3)  THE DEPARTMENT OF JUSTICE HAS ESTABLISHED A POLICY OF STRICT
SELF-LIMITATION WITH REGARD TO PROSECUTIONS UNDER THE CIVIL RIGHTS
ACTS.  WHEN VIOLATIONS OF SUCH STATUTES ARE REPORTED, THE DEPARTMENT
REQUIRES THAT EFFORTS BE MADE TO ENCOURAGE STATE OFFICIALS TO TAKE
APPROPRIATE ACTION UNDER STATE LAW.  TO ASSURE CONSISTENT OBSERVANCE OF
THIS POLICY IN THE ENFORCEMENT OF THE CIVIL RIGHTS STATUTES, ALL UNITED
STATES ATTORNEYS HAVE BEEN INSTRUCTED TO SUBMIT CASES TO THE DEPARTMENT
FOR APPROVAL BEFORE PROSECUTIONS OR INVESTIGATIONS ARE INSTITUTED.  THE
NUMBER OF PROSECUTIONS WHICH HAVE BEEN BROUGHT UNDER THE CIVIL RIGHTS
STATUTES IS SMALL.  NO STATISTICS ARE AVAILABLE WITH RESPECT TO THE
NUMBER OF PROSECUTIONS PRIOR TO 1939, WHEN A SPECIAL CIVIL RIGHTS
DURING THIS PERIOD HAVE BEEN REPORTED:  UNITED STATES V. BUNTIN, 10
FED. 730(C.C.S.D. OHIO), AND UNITED STATES V. STONE, 188 FED. 836(D.
MD.).  SINCE 1939, THE NUMBER OF COMPLAINTS RECEIVED ANNUALLY BY THE
CIVIL RIGHTS SECTION HAS RANGED FROM 8,000 TO 14,000, BUT IN NO YEAR
HAVE PROSECUTIONS UNDER BOTH SECTIONS 20 AND 19, ITS COMPANION STATUTE,
EXCEEDED 76.  IN THE FISCAL YEAR 1943, FOR EXAMPLE, 31 FULL
INVESTIGATIONS OF ALLEGED VIOLATIONS OF SECTION 20 WERE CONDUCTED, AND
THREE CASES WERE BROUGHT TO TRIAL.  IN THE FOLLOWING FISCAL YEAR THERE
WERE 55 SUCH INVESTIGATIONS, AND PROSECUTIONS WERE INSTITUTED IN 12
CASES. 

"COMPLAINTS OF VIOLATIONS ARE OFTEN SUBMITTED TO THE DEPARTMENT BY
LOCAL LAW ENFORCEMENT OFFICIALS WHO FOR ONE REASON OR ANOTHER MAY FEEL
THEMSELVES POWERLESS TO TAKE ACTION UNDER STATE LAW.  IT IS PRIMARILY
IN THIS AREA, NAMELY, WHERE THE OFFICIAL POSITION OF THE WRONGDOERS HAS
APPARENTLY RENDERED THE STATE UNABLE OR UNWILLING TO INSTITUTE
PROCEEDINGS, THAT THE STATUTE HAS COME INTO OPERATION.  THUS, IN THE
CASE AT BAR, THE SOLICITOR GENERAL OF THE ALBANY CIRCUIT IN THE STATE
OF GEORGIA, WHICH INCLUDED BAKER COUNTY, TESTIFIED (R. 42):  'THERE HAS
BEEN NO COMPLAINT FILED WITH ME IN CONNECTION WITH THE DEATH OF BOBBY
HALL AGAINST SHERIFF SCREWS, JONES, AND KELLEY.  AS TO WHOM I DEPEND
FOR INVESTIGATION OF MATTERS THAT COME INTO MY COURT, I AM AN ATTORNEY,
I AM NOT A DETECTIVE AND I DEPEND ON EVIDENCE THAT IS AVAILABLE AFTER I
COME TO COURT OR GET INTO THE CASE  ...  THE SHERIFFS AND OTHER PEACE
OFFICERS OF THE COMMUNITY GENERALLY GET THE EVIDENCE AND I ACT AS THE
ATTORNEY FOR THE STATE.  I RELY ON MY SHERIFFS AND POLICEMEN AND PEACE
OFFICERS AND PRIVATE CITIZENS ALSO WHO PROSECUTE EACH OTHER TO
INVESTIGATE THE CHARGES THAT ARE LODGED IN COURT.'" 

BUT SUCH A "POLICY OF STRICT SELF-LIMITATION" IS NOT ACCOMPANIED BY
ASSURANCE OF PERMANENT TENURE AND IMMORTALITY OF THOSE WHO MAKE IT THE
POLICY.  EVIL MEN ARE RARELY GIVEN POWER; THEY TAKE IT OVER FROM BETTER
MEN TO WHOM IT HAD BEEN ENTRUSTED.  THERE CAN BE NO DOUBT THAT THIS
SHAPELESS AND ALL-EMBRACING STATUTE CAN SERVE AS A DANGEROUS INSTRUMENT
OF POLITICAL INTIMIDATION AND COERCION IN THE HANDS OF THOSE SO
INCLINED. 

WE ARE TOLD LOCAL AUTHORITIES CANNOT BE RELIED UPON FOR COURAGEOUS
AND PROMPT ACTION, THAT OFTEN THEY HAVE PERSONAL OR POLITICAL REASONS
FOR REFUSING TO PROSECUTE.  IF IT BE SIGNIFICANTLY TRUE THAT CRIMES
AGAINST LOCAL LAW CANNOT BE LOCALLY PROSECUTED, IT IS AN OMINOUS SIGN
INDEED.  IN ANY EVENT, THE CURE IS A REINVIGORATION OF STATE
RESPONSIBILITY.  IT IS NOT AN UNDUE INCURSION OF REMOTE FEDERAL
AUTHORITY INTO LOCAL DUTIES WITH CONSEQUENT DEBILITATION OF LOCAL
RESPONSIBILITY. 

THE COMPLICATED AND SUBTLE PROBLEMS FOR LAW ENFORCEMENT RAISED BY THE
COURT'S DECISION EMPHASIZE THE CONCLUSION THAT SEC. 20 WAS NEVER
DESIGNED FOR THE USE TO WHICH IT HAS NOW BEEN FASHIONED.  THE
GOVERNMENT ADMITS THAT IT IS APPROPRIATE TO LEAVE THE PUNISHMENT OF
SUCH CRIMES AS THIS TO LOCAL AUTHORITIES.  REGARD FOR THIS WISDOM IN
FEDERAL-STATE RELATIONS WAS NOT LEFT BY CONGRESS TO EXECUTIVE
DISCRETION.  IT IS, WE ARE CONVINCED, EMBODIED IN THE STATUTE ITSELF. 

FN1  IOWA-DES MOINES BANK V. BENNETT, SUPRA, ILLUSTRATES THE
SITUATION WHERE THERE CAN BE NO DOUBT THAT THE ACTION COMPLAINED OF WAS
THE ACTION OF A STATE.  THAT CASE CAME HERE FROM A STATE COURT AS THE
ULTIMATE VOICE OF STATE LAW AUTHENTICATING THE ALLEGED ILLEGAL ACTION
AS THE LAW OF THE STATE.  CASES OF WHICH LANE V. WILSON, 307 U.S. 268,
IS AN ILLUSTRATION ARE ALSO TO BE DIFFERENTIATED.  IN THAT CASE
ELECTION OFFICIALS DISCRIMINATED ILLEGALLY AGAINST NEGROES NOT IN
DEFIANCE OF A STATE STATUTE BUT UNDER ITS AUTHORITY. 
..END :














JEWELL RIDGE CORP. V. LOCAL, 325 U.S. 161 


NO. 721.  ARGUED MARCH 9, 1945.  - DECIDED MAY 7, 1945.  - 145 F.2D 10,
AFFIRMED. 


1.  TIME SPENT BY MINERS IN TRAVELING UNDERGROUND BETWEEN THE PORTAL
AND THE WORKING FACE OF BITUMINOUS COAL MINES, HELD REQUIRED BY SEC. 7
OF THE FAIR LABOR STANDARDS ACT TO BE INCLUDED IN THE WORKWEEK AND TO
BE COMPENSATED ACCORDINGLY.  FOLLOWING TENNESSEE COAL CO. V. MUSCODA
LOCAL, 321 U.S. 590.  PP. 163, 166. 

2.  THE REQUIREMENT OF SEC. 7 OF THE FAIR LABOR STANDARDS ACT THAT
TIME SPENT BY MINERS IN TRAVELING UNDERGROUND BETWEEN THE PORTAL AND
THE WORKING FACE OF BITUMINOUS COAL MINES BE INCLUDED IN THE WORKWEEK
AND COMPENSATED ACCORDINGLY CANNOT BE FRUSTRATED BY ANY CONTRARY CUSTOM
OR CONTRACT.  P. 167. 

3.  THE LEGISLATIVE HISTORY OF THE FAIR LABOR STANDARDS ACT DOES NOT
REQUIRE A CONCLUSION DIFFERENT FROM THAT HERE REACHED.  P. 168. 

4.  A STATEMENT OF THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION
FAVORING THE COMPUTATION OF WORKING TIME IN THE BITUMINOUS COAL
INDUSTRY ON A "FACE TO FACE" BASIS, BEING LEGALLY UNTENABLE, IS NOT
ENTITLED TO THE WEIGHT USUALLY ACCORDED THE ADMINISTRATOR'S RULINGS,
INTERPRETATIONS, AND OPINIONS.  P. 169. 

JEWELL RIDGE COAL CORPORATION V. LOCAL NO. 6167, UNITED MINE WORKERS
OF AMERICA ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 323 U.S. 707, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PLAINTIFF (PETITIONER HERE) IN A DECLARATORY JUDGMENT ACTION
SEEKING A CONSTRUCTION OF THE FAIR LABOR STANDARDS ACT.  53 F.SUPP. 
935. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN TENNESSEE COAL CO. V. MUSCODA LOCAL, 321 U.S. 590, THIS COURT HELD
THAT UNDERGROUND TRAVEL IN IRON ORE MINES CONSTITUTED WORK AND HENCE
WAS INCLUDED IN THE COMPENSABLE WORKWEEK WITHIN THE MEANING OF SECTION
7(A) OF THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060, 1063, 29
U.S.C. SEC. 207(A).  THE SOLE ISSUE IN THIS CASE IS WHETHER ANY
DIFFERENT RESULT MUST BE REACHED AS REGARDS UNDERGROUND TRAVEL IN
BITUMINOUS COAL MINES. 

THE PETITIONER, JEWELL RIDGE COAL CORPORATION, OWNS TWO BITUMINOUS
COAL MINES IN VIRGINIA.  IT INSTITUTED THIS DECLARATORY JUDGMENT ACTION
AGAINST THE RESPONDENT UNIONS AND CERTAIN OF THEIR OFFICIALS,
REPRESENTING ALL OF PETITIONER'S UNDERGROUND MINE WORKERS.  THE
RESPONDENTS FILED AN ANSWER AND A COUNTERCLAIM.  BY STIPULATION, THE
PARTIES SOUGHT TO DETERMINE "WHAT CONSTITUTES THE WORKING TIME WHICH
MAKES UP THE WORKWEEK OF PLAINTIFF'S UNDERGROUND EMPLOYEES WITHIN THE
MEANING OF SECTION 7 OF THE FAIR LABOR STANDARDS ACT OF 1938, AND WHAT
AMOUNTS, IF ANY, ARE DUE AND UNPAID TO SUCH EMPLOYEES UNDER SAID
REFERRED TO A SPECIAL MASTER."  THIS ISSUE RELATES ONLY TO THE WORK
PERFORMED BY PETITIONER'S UNDERGROUND MINERS BETWEEN APRIL 1, 1943, AND
JUNE 20, 1943. 

AFTER HEARING EVIDENCE AND ARGUMENT, THE DISTRICT COURT CONCLUDED
THAT PETITIONER HAD CORRECTLY COMPUTED THE WORKWEEK ON A "FACE TO FACE"
BASIS AND THAT THE ACT DID NOT REQUIRE THAT THE WORKWEEK INCLUDE
"EITHER TIME SPENT BY SUCH EMPLOYEES OUTSIDE THE PORTAL OF THE MINES
BEFORE ENTERING THEREIN, OR TIME SPENT IN TRAVELING FROM THE PORTALS TO
THEIR USUAL PLACES OF WORK AND RETURN."  53 F.SUPP.  935, 952.  ONLY
THE ISSUE AS TO TRAVEL TIME IS INVOLVED HERE.  THE FOURTH CIRCUIT COURT
OF APPEALS FELT THAT THE TENNESSEE COAL CASE, WHICH WAS DECIDED BY THIS
COURT SUBSEQUENT TO THE ENTRY OF THE DISTRICT COURT'S JUDGMENT IN THIS
PROCEEDING, COULD NOT BE DISTINGUISHED IN PRINCIPLE AND ACCORDINGLY
REVERSED THE JUDGMENT ON THAT BASIS.  145 F.2D 10. 

WE AGREE WITH THE COURT BELOW THAT THERE IS NO SUBSTANTIAL FACTUAL OR
LEGAL DIFFERENCE BETWEEN THIS AND THE TENNESSEE COAL CASE AND THAT
UNDERGROUND TRAVEL IN BITUMINOUS COAL MINES AS WELL AS IN IRON ORE
MINES IS INCLUDED WITHIN THE COMPENSABLE WORKWEEK CONTEMPLATED BY SEC.
7(A) OF THE FAIR LABOR STANDARDS ACT. 

FACTUALLY, UNDERGROUND TRAVEL BETWEEN THE PORTALS AND WORKING FACES
OF PETITIONER'S TWO BITUMINOUS COAL MINES BEARS ALL THE INDICIA OF
WORK.  WHILE THE DISTRICT COURT HERE FOUND "NO SUCH PAINFUL AND
BURDENSOME CONDITIONS AS THOSE DESCRIBED IN THE IRON ORE MINES," 53
F.SUPP.  AT 949, ALL THREE OF THE ESSENTIAL ELEMENTS OF WORK AS SET
FORTH IN THE TENNESSEE COAL CASE, 321 U.S. AT 598, ARE PRESENT IN THIS
INSTANCE: 

1.  PHYSICAL OR MENTAL EXERTION (WHETHER BURDENSOME OR NOT).  AFTER
ARRIVING AT PETITIONER'S MINES BY FOOT OR VEHICLE, THE MINERS FIRST
OBTAIN THEIR LAMPS FROM THE LAMP HOUSE NEAR THE MAIN PORTAL.  THEY THEN
ENTER THE MAN TRIPS AT THE PORTAL AND ARE TRANSPORTED DOWN TO THE
UNDERGROUND MAN TRIP STATIONS - A JOURNEY VARYING IN DISTANCE FROM
4,250 FEET TO 25,460 FEET.  EACH MAN TRIP IS COMPOSED OF A TRAIN OF
SMALL EMPTY COAL CARS DRAWN BY AN ELECTRIC MOTOR OR LOCOMOTIVE.  FROM
SEVEN TO EIGHT MEN SIT ON A BENCH OR ON THE FLOOR OF EACH CAR, WHICH IS
ONLY A FEW FEET HIGH.  THE CARS APPARENTLY ARE NOT OVERCROWDED.  IF THE
ROOF OF THE PASSAGEWAY IS SUFFICIENTLY HIGH THE MEN ARE ABLE TO SIT
UPRIGHT AS THEY RIDE.  BUT THEY MUST BE ON CONSTANT GUARD FOR THE
FREQUENT LOW CEILINGS WHICH FORCE THEM TO BEND OVER TO AVOID STRIKING
THEIR HEADS.  AND THE DANGERS OF FALLING SLATE AND FALLING CEILINGS ARE
EVER PRESENT. 

THE DISTRICT COURT FOUND THAT WHILE THIS JOURNEY IS "DEFINITELY NOT
LUXURIOUS" IT IS "NEITHER PAINFUL NOR UNDULY UNCOMFORTABLE, AND IS LESS
HAZARDOUS THAN OTHER PHASES OF MINING OPERATIONS."  IN THIS CONNECTION
IT SHOULD BE NOTED THAT THE RECORD SHOWS THAT SIX PERSONS SUFFERED
COMPENSABLE INJURIES, INVOLVING ABSENCE FROM WORK FOR SEVEN DAYS OR
MORE, WHILE RIDING ON PETITIONER'S MAN TRIPS FROM JANUARY 1, 1939, TO
OCTOBER 31, 1943.  THERE IS ALSO EVIDENCE OF TWO DEATHS AND NUMEROUS
MINOR INJURIES TO THE MINERS. 

AFTER ARRIVING AT THE MAN TRIP STATIONS, THE MINERS CHECK IN AT A
NEARBY CHECK-IN BOARD, A PRACTICE THAT DIFFERS INCONSEQUENTIALLY FROM
THE PROCEDURE FOLLOWED BY THE MINERS IN THE TENNESSEE COAL CASE OF
CHECKING IN AT A TALLY HOUSE ON THE SURFACE.  THEY THEN COLLECT THEIR
TOOLS, EQUIPMENT, EXPLOSIVES, ETC., AND CARRY THEM ON FOOT TO THE
WORKING PLACES, USUALLY SOME 500 TO 1,500 FEET AWAY.  THIS REQUIRES
THAT THEY PROCEED THROUGH DARK AND DANGEROUS TUNNELS, OFTEN SO LOW AS
TO FORCE THEM TO CROUCH OVER WHILE CARRYING THEIR BURDENS.  MOREOVER,
THEY MUST KEEP CONSTANT VIGIL AGAINST LIVE ELECTRIC WIRES, FALLING
ROCKS AND OBSTACLES UNDER FOOT.  AT THE END OF EACH SHIFT, THE MINERS
MAKE THEIR RETURN JOURNEY TO THE MAN TRIP STATIONS, DEPOSIT THEIR TOOLS
AND EQUIPMENT AND ASCEND TO THE PORTAL VIA THE MAN TRIPS. 

IN ADDITION, APPROXIMATELY 72 MEN AT PETITIONER'S JEWELL RIDGE MINE
ENTER THE MINE AT PLACES OTHER THAN THE MAIN PORTAL AND EITHER CATCH
THE MAN TRIPS AT SOME MAN TRIP STATION INSIDE THE MINE OR WALK ALL THE
WAY TO THEIR PLACES OF WORK. 

THESE UNDISPUTED FACTS COMPEL THE CONCLUSION THAT THE UNDERGROUND
TRAVEL IN PETITIONER'S MINES INVOLVES PHYSICAL AND MENTAL EXERTION. 
THAT IT MAY NOT BE SO BURDENSOME OR DISAGREEABLE AS SOME OF THE ASPECTS
OF THE TRAVEL DESCRIBED IN THE TENNESSEE COAL CASE IS NOT OF
CONTROLLING SIGNIFICANCE IN THIS RESPECT. 

2.  EXERTION CONTROLLED OR REQUIRED BY THE EMPLOYER.  IT IS OBVIOUS
THAT THE UNDERGROUND TRAVEL IS BOTH CONTROLLED AND REQUIRED BY
PETITIONER.  BOTH THE MAN TRIP TRANSPORTATION AND TRAVEL BY FOOT OCCUR
SOLELY ON PETITIONER'S PROPERTY AND OCCUR ONLY AS AND WHEN REQUIRED BY
PETITIONER.  PETITIONER ORGANIZES, OPERATES AND SUPERVISES ALL ASPECTS
OF THE MAN TRIPS.  DEFINITE SCHEDULES ARE ARRANGED AND MAINTAINED BY
PETITIONER.  A COMPANY FOREMAN RIDES ON EACH MAN TRIP AND OCCASIONALLY
GIVES WORK INSTRUCTIONS DURING THE JOURNEY.  HE ALSO COMPELS COMPLIANCE
WITH THE NUMEROUS SAFETY RULES FOR MAN TRIPS ADOPTED BY PETITIONER IN
COMPLIANCE WITH STATE LAW.  LAYOFF OR DISCHARGE MAY RESULT FROM A
MINER'S CONTINUED FAILURE TO OBEY THESE RULES. 

3.  EXERTION PURSUED NECESSARILY AND PRIMARILY FOR THE BENEFIT OF THE
EMPLOYER AND HIS BUSINESS.  IT IS TOO OBVIOUS TO REQUIRE EXTENDED
DISCUSSION THAT HERE, AS IN THE TENNESSEE COAL CASE, THE UNDERGROUND
TRAVEL IS UNDERTAKEN NECESSARILY AND PRIMARILY FOR THE BENEFIT OF
PETITIONER AND ITS COAL MINING OPERATIONS.  THE MINERS DO NOT ENGAGE IN
THIS TRAVEL FOR THEIR OWN PLEASURE OR CONVENIENCE.  IT OCCURS ONLY
BECAUSE IT IS A NECESSARY PREREQUISITE TO THE EXTRACTION OF COAL FROM
THE MINES, WHICH IS THE PRIME PURPOSE OF PETITIONER'S BUSINESS. 
WITHOUT SUCH TRAVEL THE COAL COULD NOT BE MINED. 

THUS THE THREE BASIC ELEMENTS OF WORK OF A TYPE NECESSARILY INCLUDED
WITHIN THE WORKWEEK AS CONTEMPLATED BY THE ACT ARE PLAINLY EVIDENT FROM
THESE FACTS.  THOSE WHO ARE FORCED TO TRAVEL IN UNDERGROUND MINES IN
ORDER TO EARN THEIR LIVELIHOOD ARE UNLIKE THE ORDINARY TRAVELER OR THE
ORDINARY WORKMAN ON HIS WAY TO WORK.  THEY MUST JOURNEY BENEATH THE
CRUST OF THE EARTH, FAR REMOVED FROM THE FRESH AND OPEN AIR AND FROM
THE BENEFICIAL RAYS OF THE SUN.  A HEAVY TOLL IS EXACTED FROM THOSE
WHOSE LOT IT IS TO RIDE AND WALK AND MINE BENEATH THE SURFACE.  FROM
THE MOMENT THEY ENTER THE PORTAL UNTIL THEY LEAVE THEY ARE SUBJECTED TO
CONSTANT HAZARDS AND DANGERS; THEY ARE LEFT BEGRIMED AND EXHAUSTED BY
THEIR CONTINUOUS PHYSICAL AND MENTAL EXERTION. 

TO CONCLUDE THAT SUCH SUBTERRANEOUS TRAVEL IS NOT WORK IS TO IGNORE
REALITY COMPLETELY.  WE THEREFORE ARE COMPELLED TO HOLD THAT THE ONLY
REASONABLE CONCLUSION TO BE DRAWN FROM THE DISTRICT COURT'S FINDINGS OF
FACT AND FROM OTHER UNDISPUTED EVIDENCE IS THAT THE UNDERGROUND TRAVEL
IN PETITIONER'S TWO MINES IS WORK AND THAT THE TIME SPENT IN SUCH
TRAVEL SHOULD BE INCLUDED WITHIN THE WORKWEEK FOR PURPOSES OF SEC. 7(A)
OF THE FAIR LABOR STANDARDS ACT. 

THE OTHER PROPOSITIONS ADVANCED BY PETITIONER ARE ALSO ANSWERED BY
THE PRINCIPLES OF THE TENNESSEE COAL CASE.  THUS PETITIONER PLACES
HEAVY RELIANCE UPON THE CONCLUSION OF THE DISTRICT COURT THAT "BY THE
UNIVERSAL CUSTOM AND USAGE OF THE PAST FIFTY YEARS, AND BY AGREEMENT OF
THE PARTIES IN EVERY COLLECTIVE BARGAINING AGREEMENT WHICH WAS EVER
MADE, IT WAS UNIVERSALLY RECOGNIZED THAT IN THE BITUMINOUS COAL
INDUSTRY, TRAVEL TIME WAS NOT WORK TIME."  53 F.SUPP.  AT 950.  BUT
EVEN THOUGH THE CUSTOMS AND CONTRACTS PREVALENT IN THIS INDUSTRY WERE
TO COMPUTE THE WORKDAY ONLY FROM THE TIME SPENT "FACE TO FACE" WITH THE
SEAMS, WE NEED ONLY REPEAT WHAT WE SAID ON THIS SUBJECT IN THE
TENNESSEE COAL OPINION, 321 U.S. AT 602:  "BUT IN ANY EVENT IT IS
IMMATERIAL THAT THERE MAY HAVE BEEN A PRIOR CUSTOM OR CONTRACT NOT TO
CONSIDER CERTAIN WORK WITHIN THE COMPASS OF THE WORKWEEK OR NOT TO
COMPENSATE EMPLOYEES FOR CERTAIN PORTIONS OF THEIR WORK.  THE FAIR
LABOR STANDARDS ACT WAS NOT DESIGNED TO CODIFY OR PERPETUATE THOSE
CUSTOMS AND CONTRACTS WHICH ALLOW AN EMPLOYER TO CLAIM ALL OF AN
EMPLOYEE'S TIME WHILE COMPENSATING HIM ONLY FOR A PART OF IT.  CONGRESS
INTENDED, INSTEAD, TO ACHIEVE A UNIFORM NATIONAL POLICY OF GUARANTEEING
COMPENSATION FOR ALL WORK OR EMPLOYMENT ENGAGED IN BY EMPLOYEES COVERED
BY THE ACT.  ANY CUSTOM OR CONTRACT FALLING SHORT OF THAT BASIC POLICY,
LIKE AN AGREEMENT TO PAY LESS THAN THE MINIMUM WAGE REQUIREMENTS,
CANNOT BE UTILIZED TO DEPRIVE EMPLOYEES OF THEIR STATUTORY RIGHTS." 

SUCH A CONCLUSION IS THE ONLY METHOD OF ACHIEVING THE PLAIN DESIGN OF
SEC. 7(A) TO SPREAD EMPLOYMENT THROUGH IMPOSING THE OVERTIME PAY
REQUIREMENT ON THE EMPLOYER AND TO COMPENSATE THE EMPLOYEE FOR THE
BURDEN OF A WORKWEEK IN EXCESS OF THE HOURS FIXED BY THE ACT.  WALLING
V. HELMERICH & PAYNE, 323 U.S. 37, 40; OVERNIGHT MOTOR CO. V. MISSEL,
316 U.S. 572, 577, 578.  THIS NECESSITATES THAT THE WORKWEEK BE
COMPUTED ON THE BASIS OF THE HOURS SPENT IN ACTUAL WORK AND THAT
COMPENSATION BE PAID ACCORDINGLY.  AND EVEN THOSE EMPLOYERS WHO PAY
WAGES ABOVE THE MINIMUM AND WHO MAINTAIN NO SUBSTANDARD WORKING
CONDITIONS MUST RESPECT THIS STATUTORY PATTERN.  CONVERSELY, EMPLOYEES
ARE NOT TO BE DEPRIVED OF THE BENEFITS OF THE ACT SIMPLY BECAUSE THEY
ARE WELL PAID OR BECAUSE THEY ARE REPRESENTED BY STRONG BARGAINING
AGENTS.  THIS MAY IN SOME INSTANCES REQUIRE CERTAIN MODIFICATIONS AND
ADJUSTMENTS IN EXISTING CUSTOMS AND CONTRACTS IN ORDER TO INCLUDE ALL
THE HOURS ACTUALLY WORKED IN THE STATUTORY WORKWEEK OR TO COMPENSATE AT
THE PROPER RATE FOR ALL OF SUCH LABOR.  BUT IF THESE MODIFICATIONS AND
ADJUSTMENTS ARE NOT MADE, THE PLAIN LANGUAGE AND POLICY OF SEC. 7(A)
ARE FRUSTRATED. 

PETITIONER HERE HAS PRESENTED NO COGENT REASON FOR LEGALIZING SUCH A
FRUSTRATION, HOWEVER UNINTENTIONAL IN CHARACTER, OF THE STATUTORY
SCHEME.  STATEMENTS IN THE LEGISLATIVE HISTORY TO THE EFFECT THAT THE
ACT WAS AIMED PRIMARILY AT OVERWORKED AND UNDERPAID WORKERS AND THAT
THE ACT DID NOT ATTEMPT TO INTERFERE WITH BONA FIDE COLLECTIVE
BARGAINING AGREEMENTS ARE INDECISIVE OF THE ISSUE IN THE PRESENT CASE. 
FN1  SUCH GENERAL REMARKS, WHEN READ FAIRLY AND IN LIGHT OF THEIR TRUE
CONTEXT, WERE OBVIOUSLY NOT MADE WITH THIS NARROW ISSUE IN MIND AND
THEY CANNOT BE SAID TO DEMONSTRATE A CONGRESSIONAL DESIRE TO ALLOW THE
COAL INDUSTRY TO USE PRIVATE CUSTOMS AND AGREEMENTS AS AN EXCUSE FOR
FAILURE TO COMPUTE THE WORKWEEK AS CONTEMPLATED BY SEC. 7(A).  IN FACT,
SOME OF THESE STATEMENTS EXPRESSLY RECOGNIZE THE NECESSITY OF MODIFYING
OR SETTING ASIDE THOSE COLLECTIVE AGREEMENTS THAT DID NOT CONFORM WITH
STATUTORY STANDARDS.  FN2 

NOR CAN WE GIVE WEIGHT TO THE FACT THAT THE ADMINISTRATOR OF THE WAGE
AND HOUR DIVISION IN 1940 ISSUED A PUBLIC STATEMENT THAT HE WOULD NOT
REGARD THE PRACTICE OF COMPUTING WORKING TIME ON A "FACE TO FACE" BASIS
IN THE BITUMINOUS COAL INDUSTRY AS UNREASONABLE IN LIGHT OF THE
PREVAILING CUSTOMS AND PRACTICES, SUPPORTED BY A LONG HISTORY OF BONA
FIDE COLLECTIVE BARGAINING.  THIS STATEMENT, BEING LEGALLY UNTENABLE,
LACKS THE USUAL RESPECT TO BE ACCORDED THE ADMINISTRATOR'S RULINGS,
INTERPRETATIONS AND OPINIONS.  CF. SKIDMORE V. SWIFT & CO., 323 U.S.
134, 140. 

MOREOVER, AS IN THE TENNESSEE COAL CASE, WE ARE NOT CONCERNED HERE
WITH THE USE OF BONA FIDE CONTRACTS OR CUSTOMS TO SETTLE DIFFICULT AND
DOUBTFUL QUESTIONS AS TO WHETHER CERTAIN ACTIVITY OR NONACTIVITY
CONSTITUTES WORK.  CF. ARMOUR & CO. V. WANTOCK, 323 U.S. 126.  NOR DO
WE MAKE ANY INTIMATIONS AT THIS TIME CONCERNING THE VALIDITY OF
AGREEMENTS WHEREBY, IN A BONA FIDE ATTEMPT TO AVOID COMPLEX
DIFFICULTIES OF COMPUTATION, TRAVEL TIME IS AVERAGED OR FIXED AT AN
ARBITRARY FIGURE AND UNDERGROUND MINERS ARE PAID ON THAT BASIS RATHER
THAN ACCORDING TO THEIR INDIVIDUAL TRAVEL TIME.    WE ARE DEALING HERE
SOLELY WITH A SET OF FACTS THAT LEAVES NO REASONABLE DOUBT THAT
UNDERGROUND TRAVEL IN PETITIONER'S TWO BITUMINOUS COAL MINES PARTAKES
OF THE VERY ESSENCE OF WORK.  FN3  THIS TRAVEL MUST THEREFORE BE
INCLUDED WITHIN THE WORKWEEK FOR PURPOSES OF SEC. 7(A) OF THE FAIR
LABOR STANDARDS ACT REGARDLESS OF ANY CUSTOM OR CONTRACT TO THE
CONTRARY AT THE TIME IN QUESTION.  THUS SHALL EACH OF PETITIONER'S
MINERS RECEIVE HIS OWN REWARD ACCORDING TO HIS OWN LABOR.  AFFIRMED. 
FN1  THUS, FOR EXAMPLE, THE DISTRICT COURT RELIED IN PART UPON A
STATEMENT MADE BY THE SENATOR IN CHARGE OF THE ORIGINAL BILL, WHICH DID
NOT BECOME LAW AS IT WAS THEN FRAMED, TO THE EFFECT THAT THE BILL DID
NOT AFFECT COLLECTIVE AGREEMENTS ALREADY MADE OR HEREAFTER TO BE MADE
BETWEEN EMPLOYER AND EMPLOYEE.  81 CONG. REC. 7650.  ASIDE FROM THE
FACT THAT THIS STATEMENT WAS MADE WITH REFERENCE TO ENTIRELY DIFFERENT
PROVISIONS THAN THOSE PRESENTLY IN THE ACT, A FULL AND FAIR READING OF
THE ENTIRE DEBATE AT THE TIME IN QUESTION DEMONSTRATES THAT THE
POSSIBILITY OF AFFECTING OR SETTING ASIDE COLLECTIVE AGREEMENTS WHEN
THEY DID NOT COINCIDE WITH STATUTORY STANDARDS WAS DEFINITELY
UNDERSTOOD AND APPRECIATED.  THIS IS SHOWN BY THE FOLLOWING REMARKS (81
CONG. REC. 7650): 

"MR. WALSH.  NEXT, DOES THE BILL AFFECT COLLECTIVE-BARGAINING
AGREEMENTS ALREADY MADE OR HEREAFTER TO BE MADE BETWEEN EMPLOYERS AND
EMPLOYEES? 

"MR. BLACK.  IT DOES NOT. 

"MR. WALSH.  THERE IS ONE EXCEPTION TO THAT, IS THERE NOT?  THE BILL
DOES NOT AFFECT COLLECTIVE-BARGAINING AGREEMENTS WHERE THE HOURS ARE
LESS THAN 40 PER WEEK, OR WHERE THE WAGES ARE MORE THAN 40 CENTS PER
HOUR? 

"MR. BLACK.  THAT IS CORRECT. 

"MR. WALSH.  BUT IF A COLLECTIVE-BARGAINING AGREEMENT HAS BEEN
ENTERED INTO AT 36 CENTS PER HOUR WAGES, THE BOARD WOULD HAVE
JURISDICTION TO SET THAT AGREEMENT ASIDE AND TO FIX, IF THE FACTS
WARRANT IT, A MINIMUM WAGE OF 40 CENTS?" 

"MR. BLACK.  THE BOARD WOULD HAVE JURISDICTION TO DO IT, BUT UNDER
THE PROVISIONS OF THE LAW IT WOULD BE MY JUDGMENT THAT THE BOARD WOULD
BE VERY RELUCTANT, INDEED, TO ATTEMPT TO INTERFERE WITH A BONA-FIDE
AGREEMENT MADE BETWEEN EMPLOYER AND EMPLOYEE. 

"MR. WALSH.  I THINK THE SENATOR IS CORRECT; BUT THE SITUATION MIGHT
WELL EXIST THAT THE BOARD, IN FIXING A MINIMUM WAGE IN A CASE WHERE THE
WAGE OF THE EMPLOYEES WAS LESS THAN 40 CENTS, AFTER A SURVEY AND STUDY
OF THE QUESTION, AND TAKING INTO CONSIDERATION SOME FACTORS THAT IT
MUST TAKE INTO CONSIDERATION IN FIXING THE WAGE, MIGHT DECIDE, LET US
SAY, UPON 38 CENTS PER HOUR.  IF IT IS FOUND THAT IN SOME OTHER
INDUSTRY OF LIKE CHARACTER AND NATURE THERE WAS A COLLECTIVE-BARGAINING
AGREEMENT PROVIDING FOR THE PAYMENT OF 36 CENTS AN HOUR IT WOULD, WOULD
IT NOT, TAKE JURISDICTION AND SET ASIDE THAT COLLECTIVE-BARGAINING
AGREEMENT INSOFAR AS THE FACTS SHOWED THAT 38 CENTS WAS A FAIR RATE?" 

"MR. BLACK.  IT WOULD." 

FN2  SEE NOTE 1, SUPRA. 

FN3  INDEED, TO THE EXTENT THAT PETITIONER'S "FACE TO FACE"
COLLECTIVE BARGAINING AGREEMENTS EXCLUDED TRAVEL TIME FROM THE
COMPENSABLE WORKWEEK THERE WAS AN IMPLIED RECOGNITION THAT UNDERGROUND
TRAVEL WAS WORK AND THAT SUCH WORK WOULD NORMALLY CALL FOR ADDITIONAL
COMPENSATION IN THE ABSENCE OF A SPECIFIC "FACE TO FACE" PROVISION TO
THE CONTRARY.  AND THE WIDESPREAD PRACTICE IN OTHER COAL PRODUCING
NATIONS OF INCLUDING TRAVEL TIME OR PORTIONS THEREOF IN THE WORKDAY
FURTHER BEARS OUT THE CONCLUSION THAT UNDERGROUND TRAVEL IS WORK. 

MR. JUSTICE JACKSON, DISSENTING. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER, AND
I ARE CONSTRAINED RESPECTFULLY TO DISSENT FROM THIS DECISION BECAUSE
(1) IT EITHER INVALIDATES COLLECTIVELY BARGAINED AGREEMENTS WHICH
GOVERN THE MATTER IN DIFFERENCE BETWEEN THESE PARTIES OR IT IGNORES
THEIR EXPLICIT TERMS; (2) NEITHER INVALIDATION NOR DISREGARD OF
COLLECTIVELY BARGAINED AGREEMENTS IS AUTHORIZED BY ANY WORD OF
CONGRESS, AND LEGISLATIVE HISTORY GIVES CONVINCING INDICATIONS THAT
CONGRESS DID NOT INTEND THE FAIR LABOR STANDARDS ACT TO INTERFERE WITH
THEM AS THIS DECISION HOLDS IT DOES; (3) CONGRESS WITHHELD INTERFERENCE
WITH COLLECTIVELY BARGAINED CONTRACTS AT THE REQUEST OF THE UNITED MINE
WORKERS AND EXPRESSED A POLICY TO OBSERVE AND PRESERVE COLLECTIVELY
BARGAINED ARRANGEMENTS APPLYING TO THE COAL INDUSTRY IN OTHER ALMOST
CONTEMPORANEOUS LEGISLATION SPECIFICALLY DIRECTED TO THE PROBLEMS OF
THAT INDUSTRY; (4) THIS DECISION IS CONTRARY TO INTERPRETATIONS OF THE
ACT MADE BY THE ADMINISTRATOR UPON THE RECOMMENDATION OF THE UNITED
MINE WORKERS, AND IT DENIES TO THE ADMINISTRATOR'S RULINGS THE RESPECT
WE HAVE BEEN COMPELLING LOWER COURTS TO RENDER TO THEM IN THE CASES OF
OTHERS; (5) THE DECISION NECESSARILY INVALIDATES THE BASIS ON WHICH THE
GOVERNMENT ITSELF HAS OPERATED THE MINES AND BRINGS INTO QUESTION THE
VALIDITY OF THE GOVERNMENT'S STRIKE SETTLEMENT AGREEMENTS AND OF ALL
EXISTING MINERS' AGREEMENTS; (6) IT PROCEEDS ON A PRINCIPLE WHICH THE
COURT HAS UNANIMOUSLY DENIED TO UNORGANIZED WORKMEN FOR WHOSE BENEFIT
THE ACT WAS PASSED.  IT IS THE PURPOSE OF THIS OPINION TO SET FORTH
PARTICULARS SUPPORTING THESE GROUNDS OF DISSENT. 

1.  THE COURT'S DECISION EITHER INVALIDATES OR IGNORES THE EXPLICIT
TERMS OF COLLECTIVELY BARGAINED AGREEMENTS BETWEEN THESE PARTIES BASED
ON A HALF CENTURY OF CUSTOM IN THE INDUSTRY.  THIS ACTION INVOLVES
LABOR IN TWO MINES, EACH EMPLOYING APPROXIMATELY FIVE HUNDRED MEN.  AT
ALL TIMES IN ISSUE THE MINES HAVE BEEN UNIONIZED AND THE WORKMEN HAVE
BEEN ORGANIZED BY THE UNITED MINE WORKERS OF AMERICA.  THIS UNION HAS
BEEN SELECTED AND RECOGNIZED AS THE BARGAINING AGENT OF THE MEN.  THEIR
HOURS, WAGES, AND WORKING CONDITIONS HAVE BEEN FIXED BY COLLECTIVE
BARGAINING. 

EMPLOYEES IN THESE MINES FIRST WERE ORGANIZED AS MEMBERS OF THE
UNITED MINE WORKERS OF AMERICA IN 1933, FOLLOWING PROMULGATION OF THE
N.I.R.A. CODE OF FAIR COMPETITION FOR THE INDUSTRY.  THIS CODE WAS
DRAWN UP BY REPRESENTATIVES OF THE UNION AND OF THE OPERATORS AND WAS
APPROVED BY THE PRESIDENT OF THE UNITED STATES.  IT PROVIDED FOR THE
"FACE TO FACE" WAGE BASIS WHICH MAKES NO DIRECT ALLOWANCE FOR TRAVEL
TIME, BUT, AS HAS BEEN POINTED OUT ON BEHALF OF THE UNION, THE WAGE
SCALE WAS FIXED AT A LEVEL INTENDED INDIRECTLY TO COMPENSATE TRAVEL
TIME.  BASIC WAGE AGREEMENTS THEREAFTER WERE ENTERED INTO BETWEEN THE
UNION AND THE OPERATORS AS OF APRIL 1, 1934(CONTINUED IN EFFECT BY
SUCCESSIVE EXTENSION AGREEMENTS FROM MARCH 31, 1935 UNTIL OCTOBER
1935); AGAIN AS OF OCTOBER 1, 1935; AND AS OF APRIL 2, 1937; AGAIN AS
OF MAY 12, 1939, WHEN THE FAIR LABOR STANDARDS ACT WAS NEARLY A YEAR
OLD AND HAD BEEN IN EFFECT FOR NEARLY SIX MONTHS, A NEW AGREEMENT WAS
BARGAINED WHICH, LIKE ALL THE PREVIOUS WAGE AGREEMENTS, EXPRESSLY
PROVIDED FOR THE "FACE TO FACE" BASIS, NECESSARILY EXCLUDING ALL TRAVEL
TIME FROM THE WORKWEEK.  THE LAST BASIC WAGE AGREEMENT REACHED BY
COLLECTIVE BARGAINING PREVIOUS TO THE COMMENCEMENT OF THIS ACTION,
DATED APRIL 1, 1941 AND TO EXTEND FOR A PERIOD OF TWO YEARS, DID THE
SAME.  THESE AGREEMENTS ARE ADMITTED AND, IF VALID, GOVERN THE DISPUTE
BETWEEN THE PARTIES. 

BUT THE COURT DOES NOT HONOR THESE AGREEMENTS.  WE HAVE REPEATEDLY
AND CONSISTENTLY HELD THAT COLLECTIVELY BARGAINED AGREEMENTS MUST BE
HONORED, EVEN TO THE EXTENT THAT EMPLOYERS MAY NOT, WHILE THEY EXIST,
NEGOTIATE WITH AN INDIVIDUAL EMPLOYEE OR A MINORITY, CF. J.I. CASE CO.
V. LABOR BOARD, 321 U.S. 332, AND MUST PAY HEAVY PENALTIES FOR
VIOLATING THEM.  CF. ORDER OF RAILROAD TELEGRAPHERS V. RAILWAY EXPRESS
AGENCY, 321 U.S. 342.  AND NOW AT THE FIRST DEMAND OF EMPLOYEES THE
COURT THROWS THESE AGREEMENTS OVERBOARD, EVEN INTIMATING THAT TO
OBSERVE AGREEMENTS, BARGAINED LONG BEFORE ENACTMENT OF THE FAIR LABOR
STANDARDS ACT, WOULD BE "LEGALIZING" A FRUSTRATION OF THE STATUTORY
SCHEME. 

THE SUGGESTION THAT THE AGREEMENTS WERE "FRUSTRATIONS" OF THE
STATUTORY SCHEME HAS NOT THE SLIGHTEST WARRANT IN THIS RECORD.  THIS
"FACE TO FACE" BASIS WAS TRADITIONAL IN THE BITUMINOUS COAL MINING
INDUSTRY IN THIS COUNTRY AND UNIVERSALLY WAS THE BASIS FOR
DETERMINATION OF HOURS THEREIN FOR SOMETHING LIKE HALF A CENTURY.  THIS
WAS CONTRARY TO THE PRACTICE IN ENGLAND AND CONTINENTAL EUROPE, WHERE
THE BASIS HAS BEEN TO CALCULATE TIME FROM ENTRY OF THE MINE TO LEAVING
IT OR FROM "PORTAL TO PORTAL" OR SOME MODIFICATION THEREOF.  THE REASON
AMERICAN MINERS ACCEPTED THIS ARRANGEMENT APPEARS FROM AN OFFICIAL
STATEMENT BY COUNSEL FOR THE UNITED MINE WORKERS OF AMERICA TO THE
ADMINISTRATOR OF THIS ACT THAT "THE UNIFORM HIGH RATES OF PAY THAT HAVE
ALWAYS BEEN INCLUDED IN THE WAGE AGREEMENT OF THE MINING INDUSTRY
CONTEMPLATE THE EMPLOYEE'S WORKING DAY BEGINNING WHEN HE ARRIVES AT HIS
USUAL WORKING PLACE.  HENCE, TRAVEL TIME WAS NEVER CONSIDERED AS A PART
OF THE AGREEMENT OR OBLIGATION OF THE EMPLOYER TO PAY FOR IN THIS
INDUSTRY, NOR AS HOURS WORKED BY THE EMPLOYEES, AND THIS HAS BEEN THE
CASE SINCE THE EIGHT-HOUR DAY WAS ESTABLISHED IN THE INDUSTRY - APRIL
1, 1898," AND "THIS METHOD OF MEASURING THE WORKING TIME AT THE PLACE
OF WORK HAS BEEN THE STANDARD PROVISION IN THE BASIC WAGE AGREEMENTS
FOR ALMOST FIFTY YEARS AND IS THE RESULT OF COLLECTIVE BARGAINING IN
ITS COMPLETE SENSE."  FN1 

THE COURT TAKES REFUGE IN ITS OWN DECISION IN TENNESSEE COAL CO. V.
MUSCODA LOCAL, 321 U.S. 590, SAYING "WE AGREE WITH THE COURT BELOW THAT
THERE IS NO SUBSTANTIAL FACTUAL OR LEGAL DIFFERENCE BETWEEN THIS" CASE
AND THAT.  BUT IN THE TENNESSEE CASE THIS COURT POINTED TO FACTS OF
VERY DIFFERENT IMPORT SAYING, "LIKEWISE THERE WAS SUBSTANTIAL, IF NOT
CONCLUSIVE, EVIDENCE THAT PRIOR TO 1938 PETITIONERS (OPERATORS)
RECOGNIZED NO INDEPENDENT LABOR UNIONS AND ENGAGED IN NO BONA FIDE
COLLECTIVE BARGAINING WITH AN EYE TOWARD REACHING AGREEMENTS ON THE
WORKWEEK.  CONTRACTS WITH COMPANY-DOMINATED UNIONS AND DISCRIMINATORY
ACTIONS TOWARD THE INDEPENDENT UNIONS ARE POOR SUBSTITUTES FOR
'CONTRACTS FAIRLY ARRIVED AT THROUGH THE PROCESS OF COLLECTIVE
BARGAINING.'  THE WAGE PAYMENTS AND WORK ON A TONNAGE BASIS, AS WELL AS
THE CONTRACT PROVISIONS AS TO THE WORKWEEK, WERE ALL DICTATED BY
PETITIONERS (OPERATORS).  THE FUTILE EFFORTS BY THE MINERS TO SECURE AT
LEAST PARTIAL COMPENSATION FOR THEIR TRAVEL TIME AND THEIR
DISSATISFACTION WITH EXISTING ARRANGEMENTS, MOREOVER, NEGATIVE THE
CONCLUSION THAT THERE WAS ANY REAL CUSTOM AS TO THE WORKWEEK AND
COMPENSATION THEREFOR."  TENNESSEE COAL CO. V. MUSCODA LOCAL, SUPRA,
601-2. 

THE COURT DOES NOT CONTRADICT THE UNION'S RECOGNITION THAT THE
CONTRACTS NOW DISREGARDED BY THE COURT WERE "CONTRACTS FAIRLY ARRIVED
AT THROUGH THE PROCESS OF COLLECTIVE BARGAINING."  AND THAT THERE IS
THIS IMPORTANT DIFFERENCE BETWEEN THE PRESENT SITUATION AND THE
SITUATION THAT WAS BEFORE US IN THE TENNESSEE CASE WAS RECOGNIZED BY
THE COUNSEL IN THE TENNESSEE CASE, THE SAME COUNSEL WHO ARGUED THIS
CASE AT OUR BAR.  HE HAD NO DIFFICULTY IN FINDING SUBSTANTIAL FACTUAL
AND LEGAL DIFFERENCES WHEN HE DID NOT WANT THE ABOVE-DESCRIBED
SITUATION IN THE TENNESSEE CASE TO BE PREJUDICED BY BEING LIKENED TO
THIS SITUATION.  THE DISTRICT COURT QUOTED AS "QUITE INTERESTING" AN
EXCERPT FROM THE ARGUMENT MADE IN THE BRIEF IN THAT CASE:  "'WE ARE NOT
TRYING THE CASE OF COAL MINERS.  WE ARE NOT EXPERTS ON COAL MINING.  WE
DO KNOW THAT THERE ARE TWO GREAT DIFFERENCES BETWEEN THE COAL MINING
SITUATION AND THE MINING OF IRON ORE IN JEFFERSON COUNTY.  IN COAL
MINING WE FIND A UNION WHICH HAS BEEN STRONG AND POWERFUL AND WHICH AS
A UNION HAS BEEN ENGAGED IN COLLECTIVE BARGAINING WITH THE COAL
OPERATORS OVER A LONG PERIOD OF YEARS.  IN OUR CASE WE FIND THE EFFORTS
OF THE MEN TO ORGANIZE THEIR UNION PRESENTS A PITIABLE PICTURE OF
HELPLESSNESS AGAINST THE DOMINATION OF THE MINING COMPANIES.  IN COAL
MINING THE MEN WORK SEVEN HOURS PER DAY.  AT NO POINT IN THE VOLUMINOUS
RECORD CREATED BY THE APPELLANTS DO WE FIND A SINGLE ORE MINING COMPANY
OFFERING TO PAY ITS MEN ON A SEVEN HOUR DAY.'"  FN2 

WE SUBMIT THAT THERE ARE SUBSTANTIAL FACTUAL DIFFERENCES BETWEEN
THESE CASES, AND WE THEREFORE COME TO THE QUESTION WHETHER THE PRESENCE
IN THESE CASES OF GENUINE COLLECTIVELY BARGAINED CONTRACTS COVERING THE
MATTER IN DISPUTE HAS ANY LEGAL SIGNIFICANCE.  THE COURT THINKS THEY
MEAN NOTHING.  WE CANNOT AGREE. 

2.  NEITHER INVALIDATION NOR DISREGARD OF COLLECTIVELY BARGAINED
AGREEMENTS IS AUTHORIZED BY THE FAIR LABOR STANDARDS ACT.  BOTH ITS
LEGISLATIVE HISTORY AND CONTEMPORANEOUS LEGISLATION ARE CONVINCING THAT
CONGRESS DID NOT ITSELF INTEND TO NULLIFY THEM OR TO PROVIDE ANY
LEGISLATIVE BASIS FOR THIS COURT TO DO SO.  IT IS ADMITTED THAT THE ACT
CONTAINS NO EXPRESS AUTHORITY FOR THIS DECISION.  AS WAS SAID IN
TENNESSEE COAL CO. V. MUSCODA LOCAL:  "IN DETERMINING WHETHER THIS
UNDERGROUND TRAVEL CONSTITUTES COMPENSABLE WORK OR EMPLOYMENT WITHIN
THE MEANING OF THE FAIR LABOR STANDARDS ACT, WE ARE NOT GUIDED BY ANY
PRECISE STATUTORY DEFINITION OF WORK OR EMPLOYMENT.  SECTION 7(A)(29
U.S.C. SEC. 207) MERELY PROVIDES THAT NO ONE, WHO IS ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE, SHALL BE EMPLOYED
FOR A WORKWEEK LONGER THAN THE PRESCRIBED HOURS UNLESS COMPENSATION IS
PAID FOR THE EXCESS HOURS AT A RATE NOT LESS THAN ONE AND ONE-HALF
TIMES THE REGULAR RATE.  SECTION 3(G)(29 U.S.C. SEC. 203(G)) DEFINES
THE WORD 'EMPLOY' TO INCLUDE 'TO SUFFER OR PERMIT TO WORK,' WHILE SEC.
3(J) STATES THAT 'PRODUCTION' INCLUDES 'ANY PROCESS OR OCCUPATION
NECESSARY TO  ...  PRODUCTION.'"  N3  THIS IS EVERY STRAW THAT CAN BE
PICKED FROM THE STATUTE FOR THE COURT TO GRASP AT.    LIKEWISE, THE
COURT IS UNABLE TO CITE ANY ITEM OF LEGISLATIVE HISTORY WHICH HINTS
THAT CONGRESS EXPECTED THESE WORDS TO BE GIVEN THIS MEANING.  ON THE
OTHER HAND, WE FIND THAT PAINS WERE TAKEN TO ASSURE CONGRESS THAT THERE
WAS NO SUCH INTENT. 

THE BILLS WHICH ULTIMATELY RESULTED IN THIS ACT WERE INTRODUCED IN
1937.  AS THE DISTRICT COURT SAID, "ALTHOUGH  ...  STATEMENTS WERE MADE
AT VARIOUS TIMES WHILE THE MEASURE WAS BEING AMENDED AND REVISED, AND
THEREFORE NOT WITH RESPECT TO THE BILL IN ITS FINAL FORM, THEY SHOW A
CONTINUING INTENTION NOT TO INTERFERE WITH THE PROCESSES OF COLLECTIVE
BARGAINING."  FN4  EXAMPLES ARE MULTIPLE.  THE SENATE COMMITTEE ON
EDUCATION AND LABOR IN ITS REPORT OF JULY 6, 1937, SAID:    "THE RIGHT
OF INDIVIDUAL OR COLLECTIVE EMPLOYEES TO BARGAIN WITH THEIR EMPLOYERS
CONCERNING WAGES AND HOURS IS RECOGNIZED AND ENCOURAGED BY THIS BILL. 
IT IS NOT INTENDED THAT THIS LAW SHALL INVADE THE RIGHT OF EMPLOYER AND
EMPLOYEE TO FIX THEIR OWN CONTRACTS OF EMPLOYMENT, WHEREVER THERE CAN
BE ANY REAL, GENUINE BARGAINING BETWEEN THEM.  IT IS ONLY THOSE LOW
WAGE AND LONG-WORKING-HOUR INDUSTRIAL WORKERS, WHO ARE THE HELPLESS
VICTIMS OF THEIR OWN BARGAINING WEAKNESS, THAT THIS BILL SEEKS TO
ASSIST TO OBTAIN A MINIMUM WAGE."  (SENATE REPORT NO. 884, 75TH CONG.,
1ST SESS., PP. 3-4.) 

THE DEBATES ON THE BILL APPEAR TO US TO MAKE THIS INTENTION MORE
EXPLICIT.  FOR EXAMPLE, THE CONGRESSIONAL RECORD, VOL. 81, P. 7650,
SHOWS THAT THE FOLLOWING TOOK PLACE IN DEBATE IN THE SENATE JULY 27,
1937: 

"MR. WALSH.  NEXT, DOES THE BILL AFFECT COLLECTIVE-BARGAINING
AGREEMENTS ALREADY MADE OR HEREAFTER TO BE MADE BETWEEN EMPLOYER AND
EMPLOYEE? 

"MR. BLACK.  IT DOES NOT." 

OF COURSE IT WAS AGREED ON ALL HANDS THAT NO AGREEMENT COULD BE
VALIDLY BARGAINED WHICH PROVIDED FOR LESS THAN THE MINIMUM WAGES TO BE
FIXED BY THE PROPOSED BOARD OR FOR MORE THAN THE SPECIFIED HOURS OF
LABOR.  BUT BEYOND OBSERVANCE OF THESE LIMITATIONS, WE READ THE
LEGISLATIVE HISTORY TO INDICATE THAT THE CONTROL OF WAGES, HOURS AND
WORKING CONDITIONS BY COLLECTIVE CONTRACT WAS LEFT UNDISTURBED.  FN5 

DEFINITE ASSURANCES TO THAT EFFECT REPEATEDLY GIVEN TO THE HOUSE ARE
NOTED IN THE MARGIN.  FN6 NOR ARE THESE ASSURANCES SURPRISING OR
PARADOXICAL. 

3.  CONGRESS REFRAINED FROM ENACTING AUTHORITY FOR THIS RESULT AT THE
REQUEST OF THE UNITED MINE WORKERS, EXPRESSED IN THE TESTIMONY OF THEIR
RESPONSIBLE REPRESENTATIVES, WHOSE PLAN FOR REGULATING THE COAL
INDUSTRY WAS ENACTED IN THE GUFFEY COAL ACT.  IN 1937, BILLS WHICH
ULTIMATELY RESULTED IN THE FAIR LABOR STANDARDS ACT WERE INTRODUCED IN
BOTH HOUSES OF CONGRESS AND HEARINGS WERE HELD.  MAJOR PERCY TETLOW, AN
OFFICIAL OF THE INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, AS
A WITNESS IN THIS CASE, SUMMARIZED THE ATTITUDE OF THE MINE WORKERS AS
FOLLOWS: 

"NO, THE MINERS' ORGANIZATION HAS ALWAYS TAKEN THE POSITION THAT THE
QUESTION OF WAGES, HOURS AND CONDITIONS OF EMPLOYMENT SHOULD BE
GOVERNED AND CONTROLLED BY AGREEMENTS UNDER COLLECTIVE BARGAINING IN
THE INDUSTRY MORE SO THAN BY LEGISLATION.  WE HAVE ALWAYS TAKEN THE
POSITION THAT ANY LEGISLATION WHICH WILL IMPROVE STANDARDS OF WORKING
MEN AND WOMEN,  - TO FAVOR IT AND FOSTER IT AND SUPPORT IT.
FUNDAMENTALLY, WE ARE OPPOSED TO LEGISLATION THAT CONTROLS THE DAILY
WAGE AND CONDITIONS OF EMPLOYMENT.  WE THINK THAT IS A RELATIONSHIP
THAT SHOULD EXIST BETWEEN EMPLOYER AND EMPLOYEE."  THIS IS IN ACCORD
WITH THE TESTIMONY OF MR. JOHN L. LEWIS, PRESIDENT OF THE UNITED MINE
WORKERS OF AMERICA, BEFORE THE CONGRESSIONAL COMMITTEES, WHEN HE SAID: 

"FOR INSTANCE, FRANKLY I WOULD NOT WANT THIS BILL TO CONVEY POWER TO
A BOARD TO ORDER AN INVESTIGATION INTO ALL OF THE WAGE AGREEMENTS IN
THE MINING INDUSTRY RIGHT NOW, OR TO GIVE THE BOARD POWER TO DECIDE
THAT THE COLLECTIVE-BARGAINING AGREEMENTS IN THE MINING INDUSTRY WERE
NOT SOUND, NOT PROPER, WERE CONFISCATORY, OR NOT IN HARMONY WITH THE
FACTS OF THE INDUSTRY, AND ORDER A MODIFICATION THEREOF.  I THINK THE
POWER OF THE BOARD SHOULD BE LIMITED TO CASES WHICH RUN BELOW THE LEVEL
OF THE STANDARDS FIXED BY CONGRESS.  I SEE ENDLESS CONFUSION IN THE
ADOPTION OF SECTION 5 NOW.  I SEE A DRIFT TOWARD THE COMPLETE FIXATION
OF WAGES IN ALL INDUSTRY BY GOVERNMENTAL ACTION."  FN7 

FAR FROM INTERFERING WITH EMPLOYER-EMPLOYEE AGREEMENTS BY THIS ACT,
THE UNITED MINE WORKERS ADVOCATED AND CONGRESS ENACTED CONTEMPORANEOUS
SPECIFIC LEGISLATION TO CONFIRM THEM IN THE COAL INDUSTRY.  THE SAME
CONGRESS WHICH ENACTED THE FAIR LABOR STANDARDS ACT OF 1938 ENACTED THE
SECOND BITUMINOUS COAL ACT OF 1937, (50 STAT. 72, CHAP. 127, 15 U.S.C.
SEC. 828), WHICH STATES THAT 

"(A)  ...  IT IS HEREBY DECLARED TO BE THE PUBLIC POLICY OF THE
UNITED STATES THAT - 

(1)  EMPLOYEES OF PRODUCERS OF COAL SHALL HAVE THE RIGHT TO ORGANIZE
AND TO BARGAIN COLLECTIVELY WITH RESPECT TO THEIR HOURS OF LABOR,
WAGES, AND WORKING CONDITIONS THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING, WITHOUT RESTRAINT, COERCION, OR INTERFERENCE ON THE PART OF
THE PRODUCERS."  15 U.S.C. SEC. 839. 

IT IS IMPOSSIBLE TO BELIEVE THAT CONGRESS IN APRIL OF 1937 WROTE SUCH
A SPECIFIC DECLARATION IN FAVOR OF COLLECTIVE BARGAINING AND A SHORT
TIME LATER BY GENERAL PHRASES OF THE FAIR LABOR STANDARDS ACT INTENDED
TO INVALIDATE OR DISREGARD COLLECTIVE BARGAINING. 

IT MAY SAFELY BE SAID THAT OVER THE PAST HALF CENTURY CONGRESS HAS
GIVEN MORE DETAILED AND SPECIFIC CONSIDERATION TO THE BITUMINOUS COAL
MINING INDUSTRY THAN TO ANY OTHER SINGLE INDUSTRY WITH THE POSSIBLE
EXCEPTION OF TRANSPORTATION.  THE EFFORTS OF CONGRESS, THE TRAVAIL OF
MINE LABOR, AND THE DIFFICULTIES OF OPERATORS ARE RECITED IN THIS CASE
AND IN EXTENSIVE BRIEFS BY THE GOVERNMENT AND PARTIES INTERESTED IN THE
COAL MINE LITIGATIONS THAT HAVE BEEN CONSIDERED HERE.  CF. APPALACHIAN
COALS V. UNITED STATES, 288 U.S. 344; CARTER V. CARTER COAL CO., 298
U.S. 238; SUNSHINE ANTHRACITE CO. V. ADKINS, 310 U.S. 381.  IN THE
TWENTY-THREE YEARS BETWEEN 1913 AND 1935 WHEN THE FIRST BITUMINOUS COAL
CONSERVATION ACT WAS PASSED THERE WERE NO LESS THAN NINETEEN
INVESTIGATIONS AND HEARINGS BY CONGRESSIONAL COMMITTEES OR SPECIALLY
CREATED COMMISSIONS WITH RESPECT TO CONDITIONS IN THIS INDUSTRY WHICH
WERE OF GRAVE NATIONAL CONCERN.  THESE INVESTIGATIONS HAD DEALT WITH
BITTERLY CONTESTED STRIKES, AND WITH SERIOUS DISORDERS WHICH FREQUENTLY
RESULTED IN BLOODSHED AND MARTIAL LAW, AND WHICH ON AT LEAST FOUR
OCCASIONS WERE RESTRAINED BY INTERVENTION OF FEDERAL TROOPS.  OTHER
INVESTIGATIONS WERE CONCERNED WITH COAL SHORTAGES AND HIGH PRICES AND
WITH THE DEMORALIZATION OF THE INDUSTRY.  THE PLIGHT OF THIS INDUSTRY
AT THAT TIME WAS GRAPHICALLY SUMMARIZED BY MR. JUSTICE DOUGLAS IN
SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381, FOR AN ALL BUT UNANIMOUS
COURT:  "FOR A GENERATION THERE HAVE BEEN VARIOUS MANIFESTATIONS OF
INCESSANT DEMAND FOR FEDERAL INTERVENTION IN THE COAL INDUSTRY.  THE
INVESTIGATIONS PRECEDING THE 1935 AND 1937 ACTS ARE REPLETE WITH AN
EXPOSITION OF THE CONDITIONS WHICH HAVE BESET THAT INDUSTRY.  OFFICIAL
AND PRIVATE RECORDS GIVE ELOQUENT TESTIMONY TO THE STATEMENTS OF MR.
JUSTICE CARDOZO IN THE CARTER CASE (P. 330) THAT FREE COMPETITION HAD
BEEN 'DEGRADED INTO ANARCHY' IN THE BITUMINOUS COAL INDUSTRY. 
OVERPRODUCTION AND SAVAGE, COMPETITIVE WARFARE WASTED THE INDUSTRY. 
LABOR AND CAPITAL ALIKE WERE THE VICTIMS.  FINANCIAL DISTRESS AMONG
OPERATORS AND ACUTE POVERTY AMONG MINERS PREVAILED EVEN DURING PERIODS
OF GENERAL PROSPERITY.  THIS HISTORY OF THE BITUMINOUS COAL INDUSTRY IS
WRITTEN IN BLOOD AS WELL AS IN INK. 

"IT WAS THE JUDGMENT OF CONGRESS THAT PRICE-FIXING AND THE
ELIMINATION OF UNFAIR COMPETITIVE PRACTICES WERE APPROPRIATE METHODS
FOR PREVENTION OF THE FINANCIAL RUIN, LOW WAGES, POOR WORKING
CONDITIONS, STRIKES, AND DISRUPTION OF THE CHANNELS OF TRADE WHICH
FOLLOWED IN THE WAKE OF THE DEMORALIZED PRICE STRUCTURES IN THIS
INDUSTRY.  IF THE STRATEGIC CHARACTER OF THIS INDUSTRY IN OUR ECONOMY
AND THE CHAOTIC CONDITIONS WHICH HAVE PREVAILED IN IT DO NOT JUSTIFY
LEGISLATION, IT IS DIFFICULT TO IMAGINE WHAT WOULD."  FN8 

IT WAS AGAINST THIS ECONOMIC BACKGROUND SO WELL KNOWN TO CONGRESS
THAT THE PLAN FOR STABILIZATION OF THE BITUMINOUS COAL INDUSTRY,
THROUGH ELIMINATION OF "COMPETITIVE WARFARE" WAS ADOPTED IN THE
INTERESTS BOTH OF LABOR AND THE OPERATORS.  IN THE LIGHT OF THE
SUSTAINED ATTENTION CONGRESS HAD GIVEN TO THE DELICATE ECONOMY OF THE
COAL INDUSTRY AND ITS PLAN TO STABILIZE IT BY COLLECTIVE BARGAINING AND
PRICE-FIXING, IT IS UNBELIEVABLE THAT IT WOULD UNDO A SUBSTANTIAL PART
OF THAT PLAN BY THE CASUAL AND AMBIGUOUS IMPLICATION WHICH THE COURT
NOW ATTRIBUTES TO THE FAIR LABOR STANDARDS ACT. 

4.  THE DECISION OF THE COURT IS CONTRARY TO THE INTERPRETATIONS OF
THE ACT MADE BY ITS ADMINISTRATOR ON THE RECOMMENDATION OF THE UNITED
MINE WORKERS, AND IT DENIES TO THE ADMINISTRATOR'S RULINGS THE RESPECT
WE HAVE BEEN COMPELLING LOWER COURTS TO RENDER TO SUCH ADMINISTRATIVE
RULINGS IN THE CASES OF OTHERS.  IT WAS NOT UNTIL 1940 THAT ANYONE
APPEARS TO HAVE THOUGHT THE ACT AFFECTED THE COAL MINERS' AGREEMENTS. 
IN THE YEAR 1940, AN INVESTIGATOR OF THE WAGE AND HOUR ADMINISTRATION,
INVESTIGATING OPERATIONS OF A COAL MINING COMPANY IN PENNSYLVANIA,
RAISED THE QUESTION WHETHER UNDERGROUND TRAVEL TIME MUST BE INCLUDED IN
THE WORKWEEK UNDER THE TERMS OF THE ACT.  HE STATED HIS OPINION THAT
THE "FACE TO FACE" BASIS, EXCLUDING TRAVEL TIME, WAS THE PROPER ONE TO
BE APPLIED IN THE COAL-MINING INDUSTRY, BUT INDICATED THAT IF A RULE
THERETOFORE APPLIED IN THE CASE OF A GOLD MINING COMPANY WERE REQUIRED
THE COAL COMPANY WOULD OWE SOME $70,000 TO UNDERGROUND WORKERS.  THIS
WAS BROUGHT TO THE ATTENTION OF THE PRESIDENT OF THE CENTRAL
PENNSYLVANIA COAL PRODUCERS ASSOCIATION, AND HE IN TURN BROUGHT IT TO
THE ATTENTION OF OTHER OPERATORS AND OF MR. LEWIS, PRESIDENT OF THE
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA.  THEREAFTER
REPRESENTATIVES OF BOTH THE OPERATORS AND THE UNITED MINE WORKERS
CONFERRED FROM TIME TO TIME WITH THE REPRESENTATIVES OF THE WAGE AND
HOUR ADMINISTRATION.  BOTH THE OPERATORS AND THE UNION OFFICIALS
OPPOSED ANY CONSTRUCTION OF THE ACT WHICH WOULD REQUIRE PAYMENT FOR
TRAVEL TIME.  ON JULY 9, 1940, REPRESENTATIVES OF THE OPERATORS AND MR.
EARL HOUCK, DIRECTOR OF THE LEGAL DEPARTMENT OF THE UNITED MINE WORKERS
OF AMERICA, JOINTLY COMPOSED AND SENT TO THE ADMINISTRATOR OF THE WAGE
AND HOUR DIVISION A LETTER SETTING OUT THEIR VIEWS ON THE SUBJECT N9. 
THEY URGED THAT SUCH A CHANGE "WOULD CREATE SO MUCH CONFUSION IN THE
BITUMINOUS INDUSTRY AS TO RESULT IN COMPLETE CHAOS, AND WOULD PROBABLY
RESULT IN A COMPLETE STOPPAGE OF WORK AT PRACTICALLY ALL OF THE COAL
MINES IN THE UNITED STATES.  SUCH A RULING, MOREOVER, WOULD ESTABLISH
SUCH DIVERSITY OF TIME ACTUALLY SPENT AT PRODUCTIVE WORK AS BETWEEN
DIFFERENT BITUMINOUS COAL MINES AND WITHIN EACH MINE THAT THERE WOULD
BE NO BASIS ON WHICH ANY GENERAL WAGE SCALES COULD BE PREDICATED,
COLLECTIVE BARGAINING WOULD THEREFORE BE RENDERED IMPOSSIBLE THROUGHOUT
THIS INDUSTRY, AND THE VERY PURPOSE OF THE FAIR LABOR STANDARDS ACT
WOULD BE DEFEATED."  IN RESPONSE TO THE JOINT REPRESENTATIONS AND
RECOMMENDATION OF BOTH OPERATORS AND THE UNITED MINE WORKERS, THE
ADMINISTRATOR, JULY 18, 1940, RULED THAT "WORKING TIME ON A 'FACE TO
FACE' BASIS IN THE BITUMINOUS COAL MINING INDUSTRY WOULD NOT BE
UNREASONABLE."  FN10  WE HAVE ADMONISHED LOWER COURTS THAT THEY MUST
GIVE HEED TO THESE INTERPRETATIONS.  ARMOUR & CO. V. WANTOCK, 323 U.S.
126; SKIDMORE V. SWIFT & CO., 323 U.S. 134.  THE DISTRICT COURT IN THIS
CASE DID SO, ONLY TO FIND THEM BRUSHED ASIDE HERE AS OF NO IMPORTANCE. 

5.  THIS DECISION NECESSARILY INVALIDATES THE BASIS ON WHICH THE
GOVERNMENT IN OPERATING THE MINES CONTRACTED WITH THE MINERS AND BRINGS
INTO QUESTION THE VALIDITY OF ALL THE EXISTING MINE AGREEMENTS.  IT
APPEARS TO HAVE BEEN WARTIME RESTRICTIONS ON FLAT WAGE INCREASES WHICH
FINALLY LED THE UNITED MINE WORKERS TO REVERSE THEIR FORMER AND TO TAKE
THEIR PRESENT POSITION.  IT WAS NOT UNTIL THE WAGE CONFERENCE OF 1943
THAT THE UNITED MINE WORKERS FOR THE FIRST TIME DEMANDED THAT "TO
CONFORM WITH THE BASIC AND LEGAL REQUIREMENT FOR THE INDUSTRY, THE
MAXIMUM HOURS AND WORKING TIME PROVISIONS BE AMENDED TO ESTABLISH
PORTAL TO PORTAL FOR STARTING AND QUITTING TIME FOR ALL UNDERGROUND
WORKERS."  FN11  BUT THIS CONDITION WAS TO BE SATISFIED BY A FLAT WAGE
INCREASE FOR ALL MINE WORKERS, WHETHER OR NOT THEY SPENT ANY TIME
TRAVELING UNDERGROUND, AND WAS NOT TO BE BASED ON EACH INDIVIDUAL
WORKER'S ACTUAL TRAVEL TIME, AS THE COURT NOW HOLDS THE ACT REQUIRES. 
THE EVOLUTION OF THE UNION'S PRESENT DEMANDS IS TRACEABLE THROUGH THE
SEQUENCE OF EVENTS. 

THIS MARCH 1943 WAGE CONFERENCE FELL INTO DISPUTE.  THE CASE WAS
CERTIFIED ON APRIL 22, 1943 TO THE NATIONAL WAR LABOR BOARD.  THE
PARTIES AGREED AFTER REQUEST BY PRESIDENT ROOSEVELT TO EXTEND THE 1941
AGREEMENT TO MAY 1.  THE NATIONAL WAR LABOR BOARD ON APRIL 24, 1943
DIRECTED THEM, PENDING DECISION, TO CONTINUE WORK UNDER THE PREVIOUS
TERMS.  WHEN MAY 1ST CAME AROUND, HOWEVER, THE MINERS WENT ON STRIKE,
THE GOVERNMENT SEIZED THE MINES, AND THE STRIKE CAME TO AN END MAY 6,
UNDER A TEMPORARY ARRANGEMENT EXTENDING THE OLD CONTRACT TO MAY 31.  ON
MAY 14, THE BOARD DIRECTED THE WAGE CONFERENCE TO RESUME NEGOTIATIONS. 
THIS RECONVENED AND NEGOTIATIONS CONTINUED UNTIL JUNE 20.  HOWEVER,
WHEN THE EXTENSION AGREEMENT EXPIRED ON MAY 31, A SECOND STRIKE BEGAN. 
ON JUNE 3, PRESIDENT ROOSEVELT APPEALED TO THE MINERS TO RETURN TO
WORK, AND THEY DID SO AFTER THE PRESIDENT OF THE MINE WORKERS ORDERED
THEM TO RESUME UNTIL JUNE 20.  ON THAT DAY THERE WAS A THIRD STRIKE,
WHICH LASTED THREE DAYS, WHEN IT WAS TERMINATED ON APPEAL BY PRESIDENT
ROOSEVELT, THE UNION AGAIN DIRECTING THE MINERS TO RESUME WORK UNTIL
OCTOBER 31.  THE CONFERENCES DID NOT AGREE AND THE CONTROVERSY WENT
AGAIN TO THE NATIONAL WAR LABOR BOARD.    THE BOARD FOUND AS FOLLOWS:
"THE MINE WORKERS' DEMAND OF $2.00 A DAY WAS  ...  BASED UPON AN
ASSUMPTION OR ESTIMATE THAT THE TRAVEL TIME AMOUNTED ON THE AVERAGE TO
AN HOUR AND ONE-HALF A DAY....  THE UNITED MINE WORKERS PROPOSED TO
SPREAD THIS AMOUNT OVER ALL THE WORKERS INCLUDING THOSE WHO DID NOT GO
UNDERGROUND, AND SO ARRIVED AT THE PROPOSED GENERAL WAGE INCREASE OF
$2.00 FOR ALL MINE WORKERS....  IT IS OBVIOUS THAT THESE FIGURES ARE
OUT OF ALL PROPORTION TO ANY AMOUNT THAT COULD POSSIBLY BE DUE TO THE
MINE WORKERS UNDER THE FAIR LABOR STANDARDS ACT, EVEN IF THE COURTS
SHOULD DECIDE ALL QUESTIONS IN CONTROVERSY IN FAVOR OF THE MINE
WORKERS.  THE DEMAND IS PLAINLY AND UNMISTAKABLY A DEMAND FOR AN
'INDIRECT WAGE INCREASE IN VIOLATION OF THE WAGE STABILIZATION
POLICIES,' CONTRARY TO THE BOARD'S DIRECTIVE ORDER OF MAY 25, 1943." 
FN12  AND IN A RELEASE ON JUNE 18, 1943, THE BOARD SAID:  "...  THE
UNITED MINE WORKERS HAVE NOT PROPOSED TO CHANGE THE 'FACE TO FACE'
BASIS OF PAYMENT.  ON THE CONTRARY THEY HAVE PROPOSED MERELY TO
INCREASE THE HOURLY RATE UNDER THE PRESENT CONTRACT SYSTEM....  IT
WOULD NOT BE IN FACT PAYMENT TO THE MINE WORKERS FOR PORTAL TO PORTAL. 
IT IS MERELY A GENERAL WAGE INCREASE SUPPORTED BY THE ARGUMENT THAT THE
MINE WORKERS  ...  THINK THEY OUGHT TO HAVE A GENERAL WAGE INCREASE
BECAUSE ON THE AVERAGE THEY WILL SPEND A CERTAIN AMOUNT OF TIME IN
TRAVEL." 

FINDING ITSELF THUS FRUSTRATED IN ITS DEMAND FOR A FLAT WAGE
INCREASE, THE UNION THEN NEGOTIATED WITH THE ILLINOIS COAL OPERATORS'
ASSOCIATION AN AGREEMENT WHICH PROVIDED FOR A $1.25 INCREASE FOR EACH
WORKING DAY.  THE NATIONAL WAR LABOR BOARD REFUSED TO APPROVE THIS AS
ALSO VIOLATIVE OF THE NATIONAL WAGE STABILIZATION PROGRAM.  IT WAS
THEN, AND APPARENTLY BECAUSE IT AFFORDED THE ONLY MEANS OF OBTAINING AN
INCREASE THAT DID NOT CONFLICT WITH THE WAGE STABILIZATION PROGRAM,
THAT THE MINE WORKERS NEGOTIATED THE SECOND ILLINOIS AGREEMENT, DATED
SEPTEMBER 23, 1943, OF WHICH THE NATIONAL WAR LABOR BOARD SAID:  "THE
ILLINOIS AGREEMENT NOW SUBMITTED TO THE BOARD PRESENTS FOR THE FIRST
TIME A TRUE PORTAL-TO-PORTAL METHOD OF COMPENSATION FOR THE MINE
WORKERS.  THE 1941-1943 CONTRACT PROVIDES FOR A SEVEN-HOUR DAY AND 35
HOUR WEEK OF PRODUCTIVE TIME AT THE WORKING FACE, EXCLUDING TRAVEL
TIME....  THE ILLINOIS AGREEMENT PROPOSES TO SUBSTITUTE FOR THIS METHOD
OF COMPENSATION AN 8 1/2-HOUR DAY INCLUSIVE OF TRAVEL TIME, WITH
PAYMENT AT STRAIGHT TIME RATES FOR THE 8 1/2 HOURS AND OVERTIME PAYMENT
AT RATE AND ONE-HALF FOR ALL TIME BEYOND 40 HOURS A WEEK."  FN13  THE
BOARD FOUND THAT THE EFFECT OF THIS WAS AN INCREASE WHICH IT COULD NOT
WHOLLY APPROVE. 

MEANTIME THE GOVERNMENT HAD TAKEN OVER THE MINES AND ON NOVEMBER 3,
1943, THE ICKES-LEWIS AGREEMENT WAS MADE.  THE METHOD OF WAGE
CALCULATION UNDER THE ICKES-LEWIS AGREEMENT WAS TO TREAT EACH EMPLOYEE
AS HAVING FORTY-FIVE MINUTES OF TRAVEL TIME, IRRESPECTIVE OF HIS ACTUAL
TRAVEL TIME.  THE WAR LABOR BOARD ON NOVEMBER 5, 1943 APPROVED THE
ICKES-LEWIS AGREEMENT, AND THUS IN EFFECT GRANTED A FLAT WAGE INCREASE,
UNIFORM FOR ALL MINERS IRRESPECTIVE OF THEIR INDIVIDUAL ACTUAL TRAVEL
TIME. 

THE TESTIMONY IN THIS CASE CLOSED ON NOVEMBER 24, 1943 WITH THE MINES
STILL IN THE HANDS OF THE GOVERNMENT.  THE GOVERNMENT'S POLICY,
HOWEVER, WAS NOT TO RETURN THE MINES UNTIL AN OPERATING AGREEMENT COULD
BE REACHED AND APPROVED BY THE MINERS AND THE OPERATORS.  THE OPERATORS
BY COLLECTIVE BARGAINING REACHED AGREEMENTS WHICH FOLLOWED THE
PROVISIONS OF THE ICKES-LEWIS AGREEMENT, THE MINES WERE RETURNED, AND
THIS UNIFORM METHOD CONTINUES IN USE AS A RESULT OF COLLECTIVE
BARGAINING. 

IT IS IMPORTANT TO OBSERVE THAT, WHILE THERE HAS THUS BEEN INTRODUCED
A CHANGE IN THE METHOD OF COMPUTING WORKING TIME, IT BY NO MEANS
COMPLIES WITH AND DID NOT PURPORT TO BE ADOPTED BECAUSE OF THE
REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT AS NOW INTERPRETED BY THIS
COURT.  IF IT IS ILLEGAL FOR THE OPERATORS AND THE MINERS BY COLLECTIVE
BARGAINING TO AGREE THAT THERE SHALL BE NO TRAVEL TIME, IT IS OBVIOUSLY
EQUALLY ILLEGAL TO AGREE THAT THE TRAVEL TIME SHALL BE FIXED AT AN
ARBITRARY FIGURE WHICH DOES NOT CONFORM TO THE FACTS.  THAT THE
ASSUMPTION OF FORTY-FIVE MINUTES OF TRAVEL IS AN UNFOUNDED ONE IS
EVIDENT FROM THE RECORD IN THIS CASE, WHICH INDICATES THAT THE AVERAGE
DAILY TRAVEL TIME IN ONE OF THE PETITIONER'S MINES IS EIGHTY-EIGHT
MINUTES; AND IN THE OTHER, 67.1 MINUTES.  IF UNITED MINE WORKERS'
AGREEMENTS ARE INEFFECTIVE TO MAKE ALL OF THIS TIME NON-WORKING TIME,
HOW CAN THEY BE EFFECTIVE TO MAKE HALF OF IT NON-WORKING TIME? 
MOREOVER, THE AVERAGING MEANS THAT A PART OF THE TRAVEL TIME EARNED BY
ONE MINER IS TAKEN AWAY FROM HIM AND GIVEN TO ANOTHER WHO HAS EARNED
LESS THAN THE AVERAGE, A PROCEDURE UTTERLY UNWARRANTED IN THE STATUTE,
IF THE STATUTE APPLIES AT ALL.  IF THE FAIR LABOR STANDARDS ACT
ENTITLES EACH INDIVIDUAL MINER TO TRAVEL TIME, NOT ACCORDING TO THE
TERMS OF HIS COLLECTIVELY BARGAINED AGREEMENTS, BUT ACCORDING TO THE
TIME ACTUALLY SPENT, AS THE COURT NOW HOLDS, THESE GOVERNMENT
AGREEMENTS VIOLATED THAT LAW, THE PRESENT AGREEMENTS DO ALSO, AND HEAVY
LIABILITIES BOTH FOR OVERTIME AND PENALTIES ARE DAILY BEING INCURRED BY
THE ENTIRE INDUSTRY. 

6.  THIS DECISION PROCEEDS ON A PRINCIPLE DENIED TO UNORGANIZED
WORKMEN FOR WHOSE BENEFIT THE ACT WAS PASSED.  THE INK IS HARDLY DRY ON
THIS COURT'S PRONOUNCEMENT, IN WHICH ALL OF THE MAJORITY IN THIS CASE
JOINED, THAT:  "THE LEGISLATIVE DEBATES INDICATE THAT THE PRIME PURPOSE
OF THE LEGISLATION WAS TO AID THE UNPROTECTED, UNORGANIZED AND LOWEST
PAID OF THE NATION'S WORKING POPULATION; THAT IS, THOSE EMPLOYEES WHO
LACKED SUFFICIENT BARGAINING POWER TO SECURE FOR THEMSELVES A MINIMUM
SUBSISTENCE WAGE."  BROOKLYN SAVINGS BANK V. O'NEIL, 324 U.S. 697, 707,
N. 18.  THAT COAT ILL FITS THE UNITED MINE WORKERS.  BUT LET US
CONTRAST THE ADVANTAGE WHICH THIS DECISION EXTENDS TO A POWERFUL GROUP
SO PLAINLY OUTSIDE OF THE POLICY OF THE ACT WITH THE TREATMENT OF
GROUPS THAT, BEING UNPROTECTED AND UNORGANIZED, WERE CLEARLY WITHIN
IT. 

LITTLE MORE THAN SIX MONTHS AGO THIS COURT UNANIMOUSLY REMANDED TO
THE LOWER COURTS FOR TRIAL AND FINDINGS ON THE FACTS A CASE INVOLVING
NIGHT WAITING TIME OF SEVEN UNORGANIZED FIREMEN.  IT SAID THAT "WE HAVE
NOT ATTEMPTED TO, AND WE CANNOT, LAY DOWN A LEGAL FORMULA TO RESOLVE
CASES SO VARIED IN THEIR FACTS AS ARE THE MANY SITUATIONS IN WHICH
EMPLOYMENT INVOLVES WAITING TIME.  WHETHER IN A CONCRETE CASE SUCH TIME
FALLS WITHIN OR WITHOUT THE ACT IS A QUESTION OF FACT TO BE RESOLVED BY
APPROPRIATE FINDINGS OF THE TRIAL COURT....  THIS INVOLVES SCRUTINY AND
CONSTRUCTION OF THE AGREEMENTS BETWEEN THE PARTICULAR PARTIES,
APPRAISAL OF THEIR PRACTICAL CONSTRUCTION OF THE WORKING AGREEMENT BY
CONDUCT, CONSIDERATION OF THE NATURE OF THE SERVICE, AND ITS RELATION
TO THE WAITING TIME, AND ALL OF THE SURROUNDING CIRCUMSTANCES....  THE
LAW DOES NOT IMPOSE AN ARRANGEMENT UPON THE PARTIES.  IT IMPOSES UPON
THE COURTS THE TASK OF FINDING WHAT THE ARRANGEMENT WAS."  SKIDMORE V.
SWIFT & CO., 323 U.S. 134, 136-37.  THAT WAS IN KEEPING WITH OTHER
HOLDINGS.  CF. ARMOUR & CO. V. WANTOCK, 323 U.S. 126, 132-3. 

NOW COMES THIS CASE INVOLVING THE ORGANIZED MINERS, AND THE COURT
HOLDS THAT "...  WE ARE NOT CONCERNED HERE WITH THE USE OF BONA FIDE
CONTRACTS OR CUSTOMS TO SETTLE DIFFICULT AND DOUBTFUL QUESTIONS AS TO
WHETHER CERTAIN ACTIVITY OR NONACTIVITY CONSTITUTES WORK."  IT IS HELD
IN THIS CASE THAT THE TIME MUST BE COUNTED "REGARDLESS OF ANY CUSTOM OR
CONTRACT TO THE CONTRARY AT THE TIME IN QUESTION."  CAN IT BE THAT THIS
SUDDEN REFUSAL TO WEIGH THE FACTS IS BECAUSE AS FOUND BY THE DISTRICT
COURT ON ALMOST UNDISPUTED EVIDENCE THEY ARE SO DECISIVELY AGAINST THE
CONCLUSION THE COURT IS REACHING?  JEWELL RIDGE COAL CORP. V. LOCAL NO.
6167, UNITED MINE WORKERS, 53 F.SUPP.  935.  THIS WAS MADE PLAIN ALSO
BY THE CIRCUIT COURT OF APPEALS, WHICH SAID: 

"IN VIEW OF THE LONG ESTABLISHED CUSTOM IN THE COAL INDUSTRY NOT TO
INCLUDE TRAVEL TIME IN THE WORK WEEK, THE COLLECTIVE BARGAINING
CONTRACTS EXTENDING OVER A LONG PERIOD RECOGNIZING THE 'FACE TO FACE'
BASIS OF PAY, THE TESTIMONY BEFORE THE COMMITTEES OF CONGRESS, THE
REASON AND PURPOSE OF THE FAIR LABOR STANDARDS ACT ...  AND THE
PROBABLE EFFECTS AND CONSEQUENCES OF CONSTRUING THE ACT TO REQUIRE
TRAVEL TIME IN BITUMINOUS COAL MINES TO BE INCLUDED IN THE WORK WEEK,
THERE IS STRONG REASON FOR THINKING, AS EVERYONE CONNECTED WITH THE
MATTER SEEMS TO HAVE THOUGHT UNTIL RECENTLY, THAT IT WAS NOT THE INTENT
OF CONGRESS THAT THE ACT SHOULD BE SO CONSTRUED IN ITS APPLICATION TO
THE COAL MINING INDUSTRY.  THE REASONS IN SUPPORT OF THIS CONCLUSION
ARE FULLY AND ABLY SET FORTH IN THE OPINION OF THE LEARNED JUDGE BELOW
AND NEED NOT BE REPEATED.  THEY WOULD BE CONVINCING, WERE IT NOT FOR
THE DECISION OF THE SUPREME COURT IN TENNESSEE COAL, IRON & R. CO. V.
MUSCODA LOCAL NO. 123, ETC., 321 U.S. 590, 64 S. CT. 698, 703, WHICH WE
DO NOT THINK CAN BE DISTINGUISHED IN PRINCIPLE FROM THE CASE AT BAR." 
AND IT ADDED, "UNDER THE CIRCUMSTANCES, THERE IS NOTHING FOR US TO DO
BUT REVERSE THE DECISION BELOW.  IF IT IS THOUGHT THAT THE DECISION OF
THE SUPREME COURT SHOULD BE OVERRULED OR LIMITED SO AS NOT TO APPLY TO
A CASE OF THIS CHARACTER, THAT IS A MATTER FOR THE SUPREME COURT AND
NOT FOR US."  LOCAL NO. 6167, UNITED MINE WORKERS V. JEWELL RIDGE COAL
CORP., 145 F.2D 10, 11, 13. 

THE COURT NOW SAYS TENNESSEE COAL CO. V. MUSCODA IS A PRECEDENT WHICH
CONTROLS THIS CASE AND "THAT THERE IS NO SUBSTANTIAL FACTUAL OR LEGAL
DIFFERENCE BETWEEN THIS AND THE TENNESSEE COAL CASE."  THAT CAN BE SAID
ONLY BECAUSE THE COURT DECLINES TO LOOK AT THE RECORD OF FACTUAL
DIFFERENCES, CASTS THEM OUT AS BEING IMMATERIAL.  THE FACT IS THAT THE
TENNESSEE CASE DIFFERED FROM THIS AS NIGHT DOES FROM DAY.  TWO COURTS
BELOW HAD DECIDED THE VITAL FACTS IN THAT CASE IN THE MINERS' FAVOR. 
ONE COURT BELOW HAS FOUND THE FACTS IN THIS CASE AGAINST THEM, AND THE
OTHER AGREES THAT ITS FINDINGS ARE CONVINCING.  THE COURT NOW DECLINES
TO APPRAISE THE FACTUAL DIFFERENCE OF THIS CASE AND HOLDS THAT THIS
CASE WAS DECIDED, ALTHOUGH NOT BEFORE US, BY THE TENNESSEE CASE
OPINION, REGARDLESS OF ANY VARIATION OF FACTS.  THIS, TOO, ALTHOUGH WE
HAVE UNANIMOUSLY REPLIED TO ONE LITIGANT WHO SOUGHT THE BENEFIT OF
STATEMENTS THEREIN THAT "THE CONTEXT OF THE LANGUAGE CITED FROM THE
TENNESSEE COAL CASE SHOULD BE SUFFICIENT TO INDICATE THAT THE QUOTED
PHRASES WERE NOT INTENDED AS A LIMITATION ON THE ACT, AND HAVE NO
NECESSARY APPLICATION TO OTHER STATES OF FACTS."  ARMOUR & CO. V.
WANTOCK, 323 U.S. 126, 133.  WE OUGHT NOT TO PLAY FAST AND LOOSE WITH
THE BASIC IMPLICATIONS OF THIS ACT. 

THE "FACE TO FACE" METHOD, WHATEVER ITS OTHER DEFECTS, IS A METHOD BY
WHICH BOTH OPERATORS AND MINERS HAVE TRIED TO BRING ABOUT UNIFORMITY OF
LABOR COSTS IN THE DIFFERENT UNIONIZED MINES AND TO REMOVE THE
OPERATOR'S RESISTANCE TO IMPROVED WAGE SCALES BASED ON FEAR OF
COMPETITION.  UNDER THIS DECISION THERE CAN BE NO UNIFORM WAGE IN THIS
INDUSTRY EXCEPT BY DISREGARDING THE VERY DUTY WHICH THIS DECISION
CREATES TO PAY EACH MINER FOR HIS ACTUAL TRAVEL TIME.  THUS, TWO MEN
WORKING SHOULDER TO SHOULDER, BUT ENTERING THE MINE AT DIFFERENT
PORTALS MUST RECEIVE EITHER DIFFERENT AMOUNTS OF PAY IN THEIR ENVELOPES
OR MUST STAY AT THEIR PRODUCTIVE WORK A DIFFERENT LENGTH OF TIME. 
THUS, TOO, OLD MINES WHICH HAVE BURROWED FAR FROM THEIR PORTALS MUST
SHOULDER GREATLY INCREASED LABOR COST PER TON.  THE DIFFERENTIAL MAY BE
SUFFICIENT TO MAKE SUCCESSFUL OPERATION OF SOME OF THE OLDER MINES
IMPOSSIBLE.  MINING LABOR HAS TENDED TO LOCATE ITS DWELLINGS NEAR ITS
WORK, AND THE CLOSING OF MINES RESULTS IN CORRESPONDING DISLOCATIONS OF
MINING LABOR.  THESE ARE THE CONSIDERATIONS, SO FULLY SET FORTH IN THE
HOUCK LETTER TO THE ADMINISTRATOR, WHICH THE COURT IS DISREGARDING. 

WE CAN NOT SHUT OUR EYES TO THE CONSEQUENCE OF THIS DECISION WHICH IS
TO IMPAIR FOR ALL ORGANIZED LABOR THE CREDIT OF COLLECTIVE BARGAINING,
THE ONLY MEANS LEFT BY WHICH THERE COULD BE A RELIABLE SETTLEMENT OF
MARGINAL QUESTIONS CONCERNING HOURS OF WORK OR COMPENSATION.  WE HAVE
JUST HELD THAT THE INDIVIDUAL WORKMAN IS DEPRIVED OF POWER TO SETTLE
SUCH QUESTIONS.  BROOKLYN SAVINGS BANK V. O'NEIL; DIZE V. MADDRIX, 324
U.S. 697.  NOW WE HOLD COLLECTIVE BARGAINING INCOMPETENT TO DO SO.  IT
IS HARD TO SEE HOW THE LONG-RANGE INTERESTS OF LABOR ITSELF ARE
ADVANCED BY A HOLDING THAT THERE IS NO MODE BY WHICH IT MAY BIND ITSELF
TO ANY SPECIFIED FUTURE CONDUCT, HOWEVER FAIRLY BARGAINED.  A GENUINELY
COLLECTIVELY BARGAINED AGREEMENT AS TO WAGES, HOURS OR WORKING
CONDITIONS IS NOT INVALIDATED OR SUPERSEDED BY THIS ACT AND BOTH
EMPLOYER AND EMPLOYEE SHOULD BE ABLE TO MAKE AND RELY UPON THEM, AND
THE COURTS IN DECIDING SUCH CASES SHOULD HONOR THEM. 

WE DOUBT IF ONE CAN FIND IN THE LONG LINE OF CRITICIZED CASES ONE IN
WHICH THE COURT HAS MADE A MORE EXTREME EXERTION OF POWER OR ONE SO
LITTLE SUPPORTED OR EXPLAINED BY EITHER THE STATUTE OR THE RECORD IN
THE CASE.  POWER SHOULD ANSWER TO REASON NONE THE LESS BECAUSE ITS FIAT
IS BEYOND APPEAL. 

FN1  SEE LETTER OF HOUCK SET FORTH IN NOTE 9. 

FN2  53 F.SUPP.  935, 948.  SIMILARLY INTERESTING ARGUMENTS WERE
PRESENTED TO THIS COURT IN THE BRIEF WHICH WAS SUBMITTED HERE IN THE
TENNESSEE CASE:  "THE UNDERGROUND EMPLOYEES ARE NOT COAL MINERS.  THEY
MINE IRON ORE.  WE DID NOT TRY OUT IN THE COURTS BELOW THE CLAIMS AND
COUNTERCLAIMS OF THE UNITED MINE WORKERS OF AMERICA AND THE COAL
OPERATORS.  WE DO NOT SEE HOW WE CAN TRY THE ISSUES BETWEEN COAL MINERS
AND COAL OPERATORS ON A RECORD PORTRAYING THE WORK, THE ENVIRONMENT AND
THE DETAILED CONDITIONS IN THE IRON MINING INDUSTRY.  THE JUDICIAL
PROCESS APPLIES TO SPECIFIC CASES BETWEEN DESIGNATED PARTIES  ....  THE
CASE, THEREFORE, HINGES ON A MATTER OF SIMPLE FACT."  (RESPONDENTS'
BRIEF, PP. 28-29.)    FN3  321 U.S. 590, 597. 

FN4  53 F.SUPP.  935, 944. 

FN5  THE COLLOQUY FOLLOWS: 

"MR. WALSH.  NEXT, DOES THE BILL AFFECT COLLECTIVE-BARGAINING
AGREEMENTS ALREADY MADE OR HEREAFTER TO BE MADE BETWEEN EMPLOYERS AND
EMPLOYEES? 

"MR. BLACK.  IT DOES NOT. 

"MR. WALSH.  THERE IS ONE EXCEPTION TO THAT, IS THERE NOT?  THE BILL
DOES NOT AFFECT COLLECTIVE-BARGAINING AGREEMENTS WHERE THE HOURS ARE
LESS THAN 40 PER WEEK, OR WHERE THE WAGES ARE MORE THAN 40 CENTS PER
HOUR? 

"MR. BLACK.  THAT IS CORRECT. 

"MR. WALSH.  BUT IF A COLLECTIVE-BARGAINING AGREEMENT HAS BEEN
ENTERED INTO AT 36 CENTS PER HOUR WAGES, THE BOARD WOULD HAVE
JURISDICTION TO SET THAT AGREEMENT ASIDE AND TO FIX, IF THE FACTS
WARRANT IT, A MINIMUM WAGE OF 40 CENTS? 

"MR. BLACK.  THE BOARD WOULD HAVE JURISDICTION TO DO IT, BUT UNDER
THE PROVISIONS OF THE LAW IT WOULD BE MY JUDGMENT THAT THE BOARD WOULD
BE VERY RELUCTANT, INDEED, TO ATTEMPT TO INTERFERE WITH A BONAFIDE
AGREEMENT MADE BETWEEN EMPLOYER AND EMPLOYEE. 

"MR. WALSH.  I THINK THE SENATOR IS CORRECT; BUT THE SITUATION MIGHT
WELL EXIST THAT THE BOARD, IN FIXING A MINIMUM WAGE IN A CASE WHERE THE
WAGE OF THE EMPLOYEES WAS LESS THAN 40 CENTS, AFTER A SURVEY AND STUDY
OF THE QUESTION, AND TAKING INTO CONSIDERATION SOME FACTORS THAT IT
MUST TAKE INTO CONSIDERATION IN FIXING THE WAGE, MIGHT DECIDE, LET US
SAY, UPON 38 CENTS PER HOUR.  IF IT IS FOUND THAT IN SOME OTHER
INDUSTRY OF LIKE CHARACTER AND NATURE THERE WAS A COLLECTIVE-BARGAINING
AGREEMENT PROVIDING FOR THE PAYMENT OF 36 CENTS AN HOUR IT WOULD, WOULD
IT NOT, TAKE JURISDICTION AND SET ASIDE THAT COLLECTIVE-BARGAINING
AGREEMENT INSOFAR AS THE FACTS SHOWED THAT 38 CENTS WAS A FAIR RATE? 

"MR. BLACK.  IT WOULD."  81 CONG. REC. 7650. 

FN6  THE DISTRICT COURT SUMMARIZED THESE AS FOLLOWS: 

"MRS. NORTON  ....  IT IS NOT THE INTENTION OF THIS AMENDMENT, OR OF
THE BILL, TO START FIXING WAGES IN ALL INDUSTRIES BUT ONLY IN THOSE IN
WHICH OPPRESSIVE WAGES ARE BEING PAID TO A SUBSTANTIAL PORTION OF
WORKERS  ..."  (HOUSE, DECEMBER 13, 1937, CONGRESSIONAL RECORD, VOL.
82, P. 1391.) 

"MR. RANDOLPH  ....  IT (THE BILL) IS NOT CONCERNED WITH THAT
FORTUNATE MAJORITY OF THE LABORING CLASSES WHOSE COLLECTIVE BARGAINING
POWER IS SUFFICIENTLY POTENT TO INSURE THE PRESERVATION OF THEIR
INDUSTRIAL RIGHTS. 

"BUT IT IS CONCERNED WITH THOSE MILLIONS IN INDUSTRY WHO ARE
UNPROTECTED AND UNORGANIZED  ...."  (HOUSE, DECEMBER 13, 1937,
CONGRESSIONAL RECORD, VOL. 82, P. 1395.) 

"MR. CURLEY  ....  THERE IS NO CONFLICT OF JURISDICTION, UNDER THE
PROVISIONS OF THIS FAIR STANDARDS OF LABOR BILL, AND THE EXISTING LABOR
ORGANIZATIONS OF THIS COUNTRY.  THE BILL CONCERNS ONLY OF RELIEVING THE
PARALYSIS WHICH, AT PRESENT, SHACKLES MISERY AND POVERTY TO MILLIONS OF
HEADS OF FAMILIES, WHO ARE UNDERPAID AND CAUSING A COLOSSAL FINANCIAL
LOSS IN PURCHASING POWER BECAUSE OF EXISTING DEPLORABLE CONDITIONS." 
(HOUSE, MAY 23, 1938, CONGRESSIONAL RECORD, VOL. 83, P. 7283.) 

"MR. BOILEAU  ....  WHAT IS MORE, WE ARE PRESERVING FOR ORGANIZED
LABOR ITS RIGHT TO BARGAIN COLLECTIVELY, AND IT WILL BARGAIN FOR A
HIGHER WAGE THAN THAT."  (HOUSE, MAY 23, 1938, CONGRESSIONAL RECORD,
VOL. 83, P. 7290.) 

"MR. ALLEN  ....  THIS BILL HAS A THREEFOLD PURPOSE AS I SEE IT.
FIRST, IT ELIMINATES SWEAT SHOPS -  ...  THE BILL DOES NOT AFFECT
ORGANIZED LABOR, BUT THOSE 5,000,000 AMERICAN WORKING MEN AND WOMEN WHO
HAVE NOT YET BEEN BENEFITED BY ORGANIZED LABOR."  (HOUSE, MAY 23, 1938,
CONGRESSIONAL RECORD, VOL. 83, P. 7291.) 

"MR. FITZGERALD  ....  I WOULD HAVE YOU OBSERVE THAT THIS PROPOSED
LEGISLATION WILL NOT IMPROVE THE WAGES AND HOURS OF THE MAJORITY OF
WORKERS, NOR DOES IT ATTEMPT TO.  FOR I AM GREATLY PLEASED TO SAY THAT
THE MAJORITY OF WORKERS DO NOT NEED THIS LEGISLATION BECAUSE THEY ARE
RECEIVING A LIVING WAGE AND ARE NOT FORCED TO WORK UNREASONABLE
HOURS."  (HOUSE, MAY 23, 1938, CONGRESSIONAL RECORD, VOL. 83, P.
7310.) 

FN7  JOINT HEARINGS BEFORE THE COMMITTEE ON EDUCATION AND LABOR,
UNITED STATES SENATE AND THE COMMITTEE ON LABOR, HOUSE OF
REPRESENTATIVES, JUNE 2-22, 1937(75TH CONG., 1ST SESS.) P. 281. 

FN8  310 U.S. 395. 

FN9  THE LETTER APPEARS IN THE OPINION OF THE DISTRICT COURT:

                       1617 PENNSYLVANIA BOULEVARD,

                  PHILADELPHIA, PENNSYLVANIA, JULY 9, 1940. 

COL. PHILIP B. FLEMING,

 ADMINISTRATOR, WAGE AND HOUR DIVISION, 

     DEPARTMENT OF LABOR, WASHINGTON, D.C. 

DEAR MR. ADMINISTRATOR:  AS A RESULT OF CERTAIN INVESTIGATIONS WHICH
HAVE BEEN CONDUCTED BY THE WAGE & HOUR DIVISION AT BITUMINOUS COAL
MINES IN PENNSYLVANIA, PARTICULARLY AT THE REVLOC SHAFT OF THE MONROE
COAL MINING COMPANY, AND A CONFERENCE THAT HAS BEEN HELD BY YOUR
SUPERVISING INSPECTOR, MR. CAFFEY, AT PITTSBURGH, PA., WITH A COMMITTEE
OF THE WESTERN PENNSYLVANIA COAL OPERATORS' ASSOCIATION, CONCERNING THE
APPLICATION OF THE FAIR LABOR STANDARDS ACT TO THE BITUMINOUS COAL
MINING INDUSTRY, CERTAIN QUESTIONS HAVE ARISEN THAT ARE DISTURBING TO
BOTH EMPLOYERS AND EMPLOYEES WITHIN THE INDUSTRY.  THESE UNCERTAINTIES
HAVE BEEN CONTINUING FOR SOME TIME AND ARE CAUSING MUCH CONCERN TO THE
MINE WORKERS AND THE MINE OPERATORS, ESPECIALLY WITH REFERENCE TO
"TRAVEL TIME." 

TODAY, THE NEGOTIATING COMMITTEE OF THE APPALACHIAN WAGE CONFERENCE,
NAMELY: MESSRS.  J. D. A. MORROW, PRESIDENT OF PITTSBURGH COAL COMPANY;
L. T. PUTNAM OF THE RALEIGH WYOMING MINING COMPANY, BECKLEY, W. VA.; L.
C. GUNTER, OF THE SOUTHERN APPALACHIAN COAL OPERATORS' ASSOCIATION,
KNOXVILLE, TENN.; CHARLES O'NEILL, PRESIDENT OF THE UNITED EASTERN COAL
SALES CORPORATION, NEW YORK CITY; C. E. COWAN, VICE PRESIDENT OF MONROE
COAL MINING COMPANY; FREDERICK H. KNIGHT, COUNSEL FOR MONROE COAL
MINING COMPANY; W. L. ROBISON, PRESIDENT OF THE YOUGHIOGHENY & OHIO
COAL COMPANY AND CHAIRMAN OF THE APPALACHIAN WAGE CONFERENCE, ON THE
ONE HAND, AND MR. EARL E. HOUCK, DIRECTOR OF THE LEGAL DEPARTMENT OF
THE UNITED MINE WORKERS OF AMERICA, MET WITH MR. DORSEY, REGIONAL
DIRECTOR, PHILADELPHIA, PA., AND MR. GALLAGHER, REGIONAL COUNSEL,
PHILADELPHIA, PA., AT WHICH TIME THESE QUESTIONS WERE DISCUSSED AT
LENGTH, PARTICULARLY THE APPLICATION OF THE ACT AS TO THE QUESTION OF
HOURS OF WORK IN THE BITUMINOUS COAL INDUSTRY. 

THE MINE WORKERS AND THE MINE OPERATORS PRESENT PRESENTED THEIR VIEWS
TO REPRESENTATIVES OF THE WAGE AND HOUR DIVISION AS TO THE PROVISIONS
OF THE APPALACHIAN WAGE AGREEMENT COVERING MAXIMUM HOURS AND WORKING
TIME.  WE HAVE FILED WITH THE DIVISION COPY OF THE APPALACHIAN WAGE
AGREEMENT, AND THE ENTIRE PROVISION AS TO MAXIMUM HOURS AND WORKING
TIME IS INCLUDED THEREIN.  THE PERTINENT LANGUAGE, HOWEVER, IS "SEVEN
HOURS OF LABOR SHALL CONSTITUTE A DAY'S WORK.  THE SEVEN-HOUR DAY MEANS
SEVEN HOURS' WORK IN THE MINES AT THE USUAL WORKING PLACES FOR ALL
CLASSES OF LABOR, EXCLUSIVE OF THE LUNCH PERIOD, WHETHER THEY BE PAID
BY THE DAY OR BE PAID ON THE TONNAGE BASIS ..."  THE APPALACHIAN WAGE
AGREEMENT IS THE BASIC AGREEMENT FOR THE BITUMINOUS MINES IN THE STATES
OF PENNSYLVANIA, OHIO, WEST VIRGINIA, VIRGINIA, EASTERN KENTUCKY,
SOUTHEASTERN TENNESSEE AND MARYLAND.  IN THIS TERRITORY THERE ARE
SEVERAL THOUSAND RAIL SHIPPING MINES EMPLOYING FROM 300,000 TO 325,000
MEN, AND SOME TWENTY-THREE OPERATING DISTRICTS.  EACH OF THE DISTRICTS
WORK OUT A LOCAL WAGE AGREEMENT COVERING ITS OWN TERRITORY, SUBJECT,
HOWEVER, TO THE PROVISION THAT IT MUST INCLUDE WITHIN IT ALL OF THE
PROVISIONS OF THE APPALACHIAN AGREEMENT.  THE MINES IN THE APPALACHIAN
REGION PRODUCE 70% OF THE TOTAL BITUMINOUS COAL PRODUCED IN THE UNITED
STATES ANNUALLY.  ALSO, THE APPALACHIAN AGREEMENT IS USED BY THE UNITED
MINE WORKERS OF AMERICA AS THE BASIC AGREEMENT UPON WHICH THE DISTRICT
AGREEMENTS OF THE REMAINING 30% OF THE COUNTRY IS PREDICATED. 

THE UNITED MINE WORKERS OF AMERICA AND COAL OPERATORS OF THE UNITED
STATES HAVE BEEN NEGOTIATING WAGE AGREEMENTS FOR A PERIOD OF FIFTY
YEARS.  THE APPALACHIAN AGREEMENT, COVERING AS IT DOES A GREAT NUMBER
OF MEN AND MINES, HAS BEEN WORKED OUT OVER THAT PERIOD OF TIME AND
COVERS WITHIN ITS GENERAL PROVISIONS MYRIAD WAGE RATES, CONDITIONS OF
WORK, AND HOURS OF EMPLOYMENT.  THIS AGREEMENT, WITH ITS TWENTY-THREE
SUPPLEMENTAL AGREEMENTS, CONSTITUTES A WHOLE DOCUMENT.  IN THOSE
CONFERENCES, OF COURSE, HOURS OF WORK HAS BEEN ONE OF THE PRINCIPAL
MATTERS OF CONSIDERATION DURING THIS PERIOD OF TIME.  HOURS OF WORK
WITH WAGE RATES CONSTITUTE THE HEART OF ANY SUCH AGREEMENT.  IN THIS
BASIC INDUSTRY WE HAVE PROVIDED FOR SEVEN-HOUR DAYS, FIVE-DAY WEEKS,
THIRTY-FIVE HOURS PER WEEK, WITH HIGH RATES OF PAY.  THE BASIC INSIDE
DAY RATE IN THE NORTH IS $.857 PER HOUR, AND IN THE SOUTH IT IS $.80
PER HOUR.  THE UNDERGROUND WORKERS ARE PAID ON THIS BASIS WITH MAXIMUM
RATES FOR MOBILE LOADING MACHINE OPERATORS, APPROXIMATELY $1.09 PER
HOUR.  IN ADDITION, THE AGREEMENT PROVIDES, "WORK BY MINE WORKERS PAID
BY HOUR OR DAY IN EXCESS OF SEVEN HOURS IN ONE DAY, OR THIRTY-FIVE
HOURS IN ANY ONE WEEK, SHALL BE PAID FOR IT AT THE RATE OF TIME AND ONE
HALF  ..."  IT IS OUR OPINION THAT THESE SUBSTANTIVE PROVISIONS OF THE
AGREEMENT ARE AMONG THE HIGHEST STANDARDS OF LABOR PROVIDED IN ANY
INDUSTRY IN THE UNITED STATES, BOTH AS TO HOURS OF WORKING TIME AND AS
TO WAGES PAID.  THERE IS FULL AND COMPLETE UNDERSTANDING IN THE
INDUSTRY BETWEEN EMPLOYER AND EMPLOYEES AS TO THE APPLICATION OF THESE
PROVISIONS.  THIS METHOD OF MEASURING THE WORKING TIME AT THE PLACE OF
WORK HAS BEEN THE STANDARD PROVISION IN THE BASIC WAGE AGREEMENTS FOR
ALMOST FIFTY YEARS AND IS THE RESULT OF COLLECTIVE BARGAINING IN ITS
COMPLETE SENSE. 

THERE ARE MANY REASONS WHY THE PROVISION AS TO WORKING TIME HAS BEEN
SET OUT AS PROVIDED BY THIS AGREEMENT.  THE IMPRACTICABILITY OF
MEASURING TIME BY ANY OTHER METHOD IS INHERENT IN THE VERY NATURE OF
MINING COAL.  COAL MINES ARE SOMETIMES VERY EXTENSIVE.  WHEN THEY ARE
FIRST OPENED UP, THE WORKING PLACES ARE, OF COURSE, CLOSE BY AND NEAR
TO THE OPENING OF THE MINE.  IN SUCH CASES THERE IS NO PROBLEM OF
EITHER TRANSPORTATION OF THE MEN, TO THE WORKING PLACES OR TIME
CONSUMED IN REACHING THEM; BUT AS MINES GROW OLDER, THE WORKING PLACES
MOVE FARTHER AND FARTHER AWAY FROM THE PORTAL OR OPENING OF THE MINE,
AND AS SUCH CONDITIONS DEVELOP, IT BECOMES NECESSARY FOR PROVISION TO
BE MADE FOR TRANSPORTATION OF THE MEN OVER LONG DISTANCES TO THEIR
WORKING PLACES.  THIS IS USUALLY PROVIDED BY WHAT IS KNOWN IN THE
INDUSTRY AS "MAN TRIPS."  THESE TRIPS ARE SCHEDULED TO LEAVE THE
OUTSIDE OR OPENING OF THE MINE AT A CERTAIN HOUR, SO THAT ALL THE
EMPLOYEES WILL REACH THEIR WORKING PLACES BY THE HOUR AT WHICH WORK
REGULARLY BEGINS AT THE WORKING PLACES THROUGHOUT THE MINE, AND THESE
TRIPS ARE ALSO SCHEDULED TO LEAVE THE INSIDE OF THE MINE WHEN THE DAY'S
WORK IS DONE, AT THE CONCLUSION OF THE SEVEN-HOUR PERIOD OF WORK AT THE
WORKING PLACES.  AMONG OTHER PROVISIONS OF THE AGREEMENT, THERE IS
PROVIDED A TIME FOR STARTING THE DAY'S WORK AND A LUNCH PERIOD, AS WELL
AS A TIME FOR EXPIRATION OF THE WORK DAY.  THERE IS SOME VARIATION IN
THIS, DEPENDING UPON LOCAL CONDITIONS AS TO THE STARTING AND QUITTING
TIME AT THE VARIOUS COLLIERIES.  THE AGREEMENT PROVIDES FOR A CERTAIN
TOLERANCE.  IN ANY EVENT, THE STARTING AND QUITTING TIME ARE NO MORE
THAN SEVEN HOURS APART, EXCLUSIVE OF THE LUNCH PERIOD. 

IN THE MANY CONFERENCES THAT HAVE BEEN HELD OVER THIS PERIOD OF FIFTY
YEARS, NATURALLY ALL MANNER OF SUGGESTIONS AND PROPOSALS FOR
AMPLIFICATION OR AMENDMENT OF THE AGREEMENT HAS BEEN MADE BOTH BY THE
MINE WORKERS AND THE OPERATORS. 

THE UNIFORM HIGH RATES OF PAY THAT HAVE ALWAYS BEEN INCLUDED IN THE
WAGE AGREEMENT OF THE MINING INDUSTRY CONTEMPLATE THE EMPLOYEE'S
WORKING DAY BEGINNING WHEN HE ARRIVES AT HIS USUAL WORKING PLACE. 
HENCE, TRAVEL TIME WAS NEVER CONSIDERED AS A PART OF THE AGREEMENT OR
OBLIGATION OF THE EMPLOYER TO PAY FOR IN THIS INDUSTRY, NOR AS HOURS
WORKED BY THE EMPLOYEES, AND THIS HAS BEEN THE CASE SINCE THE EIGHT
HOUR DAY WAS ESTABLISHED IN THE INDUSTRY - APRIL 1, 1898. 

IT IS URGED THAT ANY RULING REQUIRING SUCH A CHANGE IN THE CUSTOM,
TRADITION AND CONTRACT PROVISION SO AS TO CHANGE THE WORK DAY FROM
"SEVEN HOURS' WORK IN THE MINES AT THE USUAL WORKING PLACES" TO ANY NEW
STANDARD FOR THE MEASUREMENT OF TIME WORKED, AND TO THE ADJUSTMENT OF
WAGE RATES MADE NECESSARY THEREBY, WOULD CREATE SO MUCH CONFUSION IN
THE BITUMINOUS INDUSTRY AS TO RESULT IN COMPLETE CHAOS, AND WOULD
PROBABLY RESULT IN A COMPLETE STOPPAGE OF WORK AT PRACTICALLY ALL OF
THE COAL MINES IN THE UNITED STATES.  SUCH A RULING, MOREOVER, WOULD
ESTABLISH SUCH DIVERSITY OF TIME ACTUALLY SPENT AT PRODUCTIVE WORK AS
BETWEEN DIFFERENT BITUMINOUS COAL MINES AND WITHIN EACH MINE THAT THERE
WOULD BE NO BASIS ON WHICH ANY GENERAL WAGE SCALES COULD BE PREDICATED,
COLLECTIVE BARGAINING WOULD THEREFORE BE RENDERED IMPOSSIBLE THROUGHOUT
THIS INDUSTRY, AND THE VERY PURPOSE OF THE FAIR LABOR STANDARDS ACT
WOULD BE DEFEATED.  IN SUCH AN EVENT, IT WOULD MAKE NECESSARY THE
REASSEMBLING OF THE APPALACHIAN JOINT WAGE CONFERENCE AND IT WOULD BE
FACED WITH AN ISSUE THAT WOULD BE ALMOST IMPOSSIBLE OF SOLUTION BY
AGREEMENT, RESULTING IN AN INDUSTRIAL CONFLICT THAT COULD PARALYZE THE
NATION.  THIS WOULD BE A MOST UNHAPPY RESULT TO FLOW FROM AN ACT THAT
WAS PASSED BY THE CONGRESS TO AID WORKERS IN INDUSTRIES THAT HAD
UNREASONABLY LONG HOURS AND UNREASONABLY LOW RATES OF PAY, AS
CONTRASTED WITH THE SHORT HOURS AND THE HIGH RATES OF PAY IN THE
BITUMINOUS COAL MINES.  THE GREAT AMOUNT OF MONEY INVOLVED IN THE CASE
OF EXTRA PAYMENT BY THE OPERATORS OR THE GREAT CHANGES THAT WOULD BE
REQUIRED IN THE RATES OF PAY TO THE MINERS, SHOULD ANY CHANGE IN THE
PRESENT CONTRACT BE NECESSARY BY REASON OF A NEW STANDARD FOR THE
MEASUREMENT OF TIME WORKED, IS SO SERIOUS THAT A NEGOTIATED ADJUSTMENT
WOULD SEEM TO BE IMPOSSIBLE.    FOR THE FOREGOING REASONS, WE BELIEVE
THAT YOUR DIVISION SHOULD ACCEPT THE STANDARDS OF WAGES AND HOURS OF
WORK, AND THE DEFINITION OF WORKING TIME, AS SET FORTH IN THE
APPALACHIAN AGREEMENT (WHICH EMBODIES THE CUSTOM AND TRADITIONS OF THE
BITUMINOUS MINING INDUSTRY), AS COMPLYING BOTH WITH THE PROVISIONS OF
THE FAIR LABOR STANDARDS ACT AND OF INTERPRETIVE BULLETIN NO. 13, TO
THE EFFECT THAT "REASONABLE STANDARDS AGREED UPON BETWEEN THE EMPLOYER
AND THE EMPLOYEE WILL BE ACCEPTED FOR THE PURPOSES OF THE ACT." 

WE THEREFORE RESPECTFULLY REQUEST THAT YOUR DIVISION ISSUE A
SUPPLEMENT TO INTERPRETIVE BULLETIN NO. 13, STATING THAT THE STANDARD
OF WAGES AND HOURS OF WORK, AND DEFINITION OF WORKING TIME, SET FORTH
IN THE APPALACHIAN AGREEMENT, ENTERED INTO ON MAY 12, 1940, BETWEEN
TWENTY-THREE DISTRICT ASSOCIATIONS OF BITUMINOUS COAL OPERATORS
COMPRISING THE APPALACHIAN COAL PRODUCING AREA AND THE INTERNATIONAL
UNION, UNITED MINE WORKERS OF AMERICA, AND THE SEVERAL DISTRICT
AGREEMENTS BASED THEREON, CONFORM TO AND SATISFY THE REQUIREMENTS OF
THE WAGE & HOUR ACT. 

RESPECTFULLY SUBMITTED. 

FOR THE UNITED MINE WORKERS OF AMERICA:

                                 (S) EARL E. HOUCK,

                            DIRECTOR OF THE LEGAL DEPARTMENT. 

FOR THE OPERATORS:

  (S) W. L. ROBISON, CHAIRMAN,

 (S) CHARLES O'NEILL,

                            (S) L. T. PUTNAM,

                            (S) L. C. GUNTER,

                            (S) J. D. A. MORROW,

  APPALACHIAN JOINT CONFERENCE NEGOTIATING COMMITTEE. 

FN10  3 WAGE AND HOUR REP. 332, 333. 

FN11  53 F.SUPP.  941. 

FN12  9 WAR LAB.  REP.  118. 

FN13  11 WAR LAB.  REP.  687.
..END :










HOOVER CO. V. COE, 325 U.S. 79 


NO. 486.  ARGUED MARCH 5, 1945.  - DECIDED APRIL 30, 1945.  - 144 F.2D
514, REVERSED. 


1.  A FEDERAL DISTRICT COURT HAS JURISDICTION OF A SUIT UNDER R.S.
SEC. 4915 TO REVIEW A DECISION OF THE BOARD OF APPEALS OF THE PATENT
OFFICE REJECTING A CLAIM AS NOT READING ON THE DISCLOSURE IN THE
APPLICATION FOR A PATENT.  PP. 80, 83. 

JURISDICTION IS NOT DEFEATED BY THE FACT THAT AN ADJUDICATION
FAVORABLE TO THE APPLICANT MIGHT NOT CONCLUDE ALL POSSIBLE QUESTIONS AS
TO THE APPLICANT'S RIGHT TO A PATENT. 

2.  THE RIGHT OF THE APPLICANT IN SUCH CASE TO SUE UNDER R.S. SEC.
4915 IS SUPPORTED BY THE LANGUAGE OF THE STATUTE, ITS LEGISLATIVE
HISTORY, ADMINISTRATIVE PRACTICE, AND JUDICIAL CONSTRUCTION.  PP. 80,
84. 

3.  HILL V. WOOSTER, 132 U.S. 693, DISTINGUISHED.  P. 89. 

HOOVER COMPANY V. COE, COMMISSIONER OF PATENTS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 323 U.S. 697, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A SUIT AGAINST THE COMMISSIONER OF PATENTS UNDER R.S. SEC.
4915. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER A DISTRICT COURT HAS JURISDICTION
OF A SUIT UNDER R.S. 4915 FN1 TO REVIEW THE REFUSAL OF A CLAIM FOR
PATENT AS NOT READING ON THE APPLICATION.  THE COURT BELOW ANSWERED IN
THE NEGATIVE. 

THE RESPONDENT CONFESSES ERROR.  THE LANGUAGE OF THE ACT, ITS
LEGISLATIVE HISTORY, ADMINISTRATIVE PRACTICE, AND JUDICIAL
CONSTRUCTION, CONSTRAIN US TO HOLD THAT THE DISTRICT COURT HAD
JURISDICTION OF THE SUIT AND THAT THE COURT OF APPEALS SHOULD HAVE
REVIEWED ITS DECISION UPON THE MERITS. 

JANUARY 10, 1941, THE PETITIONER'S ASSIGNOR FILED APPLICATION FOR A
REISSUE OF A PATENT GRANTED NOVEMBER 7, 1939, ON AN ORIGINAL
APPLICATION OF AUGUST 8, 1936.  THE ALLEGED INVENTION IS FOR
IMPROVEMENTS IN A REFRIGERATING SYSTEM.  A NUMBER OF CLAIMS INCLUDED IN
THE APPLICATION FOR REISSUE WERE COPIED, OR SUBSTANTIALLY COPIED, FROM
SEVERAL LATER PATENTS, IN ORDER TO PROVOKE INTERFERENCES THEREWITH AND
A CONTEST AS TO PRIORITY OF INVENTION. 

THE PRIMARY EXAMINER FINALLY REJECTED FOUR OF THE CLAIMS, STATING
THAT THEY WERE REJECTED "AS NOT READING ON APPLICANT'S DISCLOSURE." 
THE BOARD OF APPEALS OF THE PATENT OFFICE AFFIRMED THE EXAMINER'S
DECISION.  THE PETITIONER THEN BROUGHT SUIT AGAINST THE COMMISSIONER OF
PATENTS UNDER R.S. 4915 IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, TO COMPEL HIM TO ALLOW THE FOUR CLAIMS, TO THE
END THAT INTERFERENCE PROCEEDINGS MIGHT BE INSTITUTED.  THE CASE WAS
HEARD ON THE PATENT OFFICE RECORD AND ADDITIONAL EVIDENCE.  THE COURT
ENTERED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND DISMISSED THE
COMPLAINT ON THE GROUND THAT THE CLAIMS DID NOT READ ON, THAT IS, DID
NOT ACCURATELY DESCRIBE, THE DISCLOSURE IN THE APPLICATION. 

ON APPEAL THE COURT BELOW ON ITS OWN MOTION RAISED THE QUESTION
"WHETHER (R.S. 4915) CONFERS JURISDICTION ON THE DISTRICT COURT TO
ENTER A DECREE WHICH DOES NOT DETERMINE THE RIGHT OF THE APPLICANT TO
RECEIVE A PATENT BUT WHICH INSTEAD DIRECTS THE EXAMINER TO ALLOW CLAIMS
FOR THE PURPOSE OF PROVOKING SUBSEQUENT INTERFERENCE PROCEEDINGS."  THE
PARTIES WERE HEARD UPON THIS QUESTION AND THE COURT DECIDED THAT THE
DISTRICT COURT LACKED JURISDICTION OF THE SUIT, AND ON THAT GROUND
AFFIRMED ITS JUDGMENT OF DISMISSAL.  FN2 

R.S. 4915 IS IN PART: 

"WHENEVER A PATENT ON APPLICATION IS REFUSED BY THE BOARD OF APPEALS
OR WHENEVER ANY APPLICANT IS DISSATISFIED WITH THE DECISION OF THE
BOARD OF INTERFERENCE EXAMINERS, THE APPLICANT, UNLESS APPEAL HAS BEEN
TAKEN TO THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS, AND
SUCH APPEAL IS PENDING OR HAS BEEN DECIDED, IN WHICH CASE NO ACTION MAY
BE BROUGHT UNDER THIS SECTION, MAY HAVE REMEDY BY BILL IN EQUITY, IF
FILED WITHIN SIX MONTHS AFTER SUCH REFUSAL OR DECISION; AND THE COURT
HAVING COGNIZANCE THEREOF, ON NOTICE TO ADVERSE PARTIES AND OTHER DUE
PROCEEDINGS HAD, MAY ADJUDGE THAT SUCH APPLICANT IS ENTITLED, ACCORDING
TO LAW, TO RECEIVE A PATENT FOR HIS INVENTION, AS SPECIFIED IN HIS
CLAIM OR FOR ANY PART THEREOF, AS THE FACTS IN THE CASE MAY APPEAR. 
AND SUCH ADJUDICATION, IF IT BE IN FAVOR OF THE RIGHT OF THE APPLICANT,
SHALL AUTHORIZE THE COMMISSIONER TO ISSUE SUCH PATENT ON THE APPLICANT
FILING IN THE PATENT OFFICE A COPY OF THE ADJUDICATION AND OTHERWISE
COMPLYING WITH THE REQUIREMENTS OF LAW.  IN ALL CASES WHERE THERE IS NO
OPPOSING PARTY A COPY OF THE BILL SHALL BE SERVED ON THE COMMISSIONER;
AND ALL THE EXPENSES OF THE PROCEEDINGS SHALL BE PAID BY THE APPLICANT,
WHETHER THE FINAL DECISION IS IN HIS FAVOR OR NOT." 

THE COURT BELOW HELD THAT IN CONFORMITY TO THE GENERAL RULE, A COURT
OF EQUITY OUGHT NOT TO AFFORD PIECEMEAL RELIEF PENDING COMPLETION OF
THE ADMINISTRATIVE PROCESS, AND CONSEQUENTLY OUGHT NOT TO ENTERTAIN A
SUIT UNDER THE STATUTE UNLESS ITS ADJUDICATION WOULD CONCLUDE ALL
POSSIBLE QUESTIONS AS TO THE RIGHT TO A PATENT. 

1.  ON ITS FACE THE STATUTE CONFERS THE RIGHT TO SUE "WHENEVER A
PATENT ON APPLICATION IS REFUSED BY THE BOARD OF APPEALS."  THE PATENT
APPLIED FOR (THAT IS, THE CLAIMS IN QUESTION) WAS FINALLY REFUSED BY
THE BOARD OF APPEALS.  NO APPEAL WAS TAKEN TO THE UNITED STATES COURT
OF CUSTOMS AND PATENT APPEALS, AND PETITIONER FILED ITS BILL WITHIN THE
TIME LIMITED IN THE SECTION. 

TWO MATTERS MAY BE NOTED RESPECTING R.S. 4915.  THESE ARE THE DENIAL
OF JURISDICTION IF APPEAL HAS BEEN TAKEN TO THE UNITED STATES COURT OF
CUSTOMS AND PATENT APPEALS AND THE STATEMENT THAT ADJUDICATION IN FAVOR
OF THE APPLICANT SHALL AUTHORIZE THE COMMISSIONER TO ISSUE A PATENT. 
THESE PROVISIONS REQUIRE REFERENCE TO R.S. 4911, AS AMENDED.  THAT

"IF ANY APPLICANT IS DISSATISFIED WITH THE DECISION OF THE BOARD OF
APPEALS, HE MAY APPEAL TO THE UNITED STATES COURT OF CUSTOMS AND PATENT
APPEALS, IN WHICH CASE HE WAIVES HIS RIGHT TO PROCEED UNDER SECTION
63(R.S. 4915) OF THIS TITLE.  IF ANY PARTY TO AN INTERFERENCE IS
DISSATISFIED.  WITH THE DECISION OF THE BOARD OF INTERFERENCE
EXAMINERS, HE MAY APPEAL TO THE UNITED STATES COURT OF CUSTOMS AND
PATENT APPEALS:  PROVIDED, THAT SUCH APPEAL SHALL BE DISMISSED IF ANY
ADVERSE PARTY TO SUCH INTERFERENCE SHALL, WITHIN TWENTY DAYS AFTER THE
APPELLANT SHALL HAVE FILED NOTICE OF APPEAL ACCORDING TO SECTION 60 OF
THIS TITLE, FILE NOTICE WITH THE COMMISSIONER OF PATENTS THAT HE ELECTS
TO HAVE ALL FURTHER PROCEEDINGS CONDUCTED AS PROVIDED IN SECTION
63(R.S. 4915).  THEREUPON THE APPELLANT SHALL HAVE THIRTY DAYS
THEREAFTER WITHIN WHICH TO FILE A BILL IN EQUITY UNDER SAID SECTION
63(R.S. 4915), IN DEFAULT OF WHICH THE DECISIONS APPEALED FROM SHALL
GOVERN THE FURTHER PROCEEDINGS IN THE CASE." 

IT IS EVIDENT THAT ALTERNATIVE RIGHTS OF REVIEW ARE ACCORDED AN
APPLICANT,  - ONE BY APPEAL TO THE UNITED STATES COURT OF CUSTOMS AND
PATENT APPEALS, THE OTHER BY BILL IN EQUITY FILED IN ONE OF THE FEDERAL
DISTRICT COURTS.  IN THE FIRST THE HEARING IS SUMMARY AND SOLELY ON THE
RECORD MADE IN THE PATENT OFFICE; FN3  IN THE OTHER A FORMAL TRIAL IS
AFFORDED ON PROOF WHICH MAY INCLUDE EVIDENCE NOT PRESENTED IN THE
PATENT OFFICE.  FN4  EVERY PARTY ADVERSELY AFFECTED BY A RULING ON THE
MERITS MAY, IF HE SO ELECT, PROCEED BY BILL RATHER THAN BY APPEAL.  IN
THE ONE CASE THE ADJUDICATION IN EQUITY AUTHORIZES ISSUE OF A PATENT ON
THE APPLICANT'S "OTHERWISE COMPLYING WITH THE REQUIREMENTS OF LAW."  IN
THE OTHER THE DECISION "SHALL GOVERN THE FURTHER PROCEEDINGS IN THE
CASE" IN THE PATENT OFFICE.  FN5 

THE QUESTION IS WHETHER THE DIFFERENCES IN THE CHARACTER OF THE
PROCEEDINGS AND THE STATUTORY EFFECT OF DECISION OR ADJUDICATION
REQUIRE A HOLDING THAT AS TO ALL DECISIONS ON THE MERITS ADVERSE TO THE
APPLICANT, OTHER THAN THE FINAL ACTION AS TO THE ISSUE OF A PATENT, THE
APPLICANT MUST OBTAIN REVIEW BY APPEAL TO THE COURT OF CUSTOMS AND
PATENT APPEALS, AND CAN PROCEED BY BILL UNDER R.S. 4915 ONLY WHEN EVERY
STEP REQUISITE TO ISSUE HAS BEEN TAKEN.  IF SO, THE LANGUAGE OF R.S.
4915 IS ILL CHOSEN.  "WHENEVER A PATENT ON APPLICATION IS REFUSED"
STATES PRECISELY THIS CASE.  THE PETITIONER'S APPLICATION WAS REFUSED. 
"WHENEVER ANY APPLICANT IS DISSATISFIED WITH THE DECISION OF THE BOARD
OF INTERFERENCE EXAMINERS" STATES A CASE WHERE THE EXAMINER'S DECISION
MAY BE ONLY ONE OF A SERIES OF RULINGS IN THE PATENT OFFICE PRIOR TO
ISSUE OF A PATENT.  IT CAN HARDLY BE THAT THESE PHRASES HAVE NO EFFECT
AND ARE TO BE READ AS "WHENEVER, AFTER ALL ADMINISTRATIVE STEPS ARE
COMPLETE AND A PATENT IS ABOUT TO ISSUE, ANY PERSON AGGRIEVED MAY HAVE
REMEDY BY BILL IN EQUITY."  IF THAT BE THE CORRECT CONSTRUCTION, ONE
FINALLY DENIED A PATENT COULD NOT RESORT TO THE SPECIFIED REMEDY,
SINCE, EVEN IF HIS CONTENTION WERE SUSTAINED, HE MIGHT THEREAFTER HAVE
TO LEAP THE HURDLES IN THE PATENT OFFICE OF INTERFERENCES, LATER
REFERENCES, AND OTHER OBSTACLES TO PATENTABILITY. 

ON THE FACE OF THE STATUTES THE APPLICANT IS GIVEN ALTERNATIVE
REMEDIES RESULTING IN THE SAME SORT OF RELIEF SO FAR AS CONCERNS THE
FURTHER PROSECUTION OF THE APPLICATION IN THE PATENT OFFICE. 

2.  THE LEGISLATIVE HISTORY CONFIRMS THE VIEW THAT CONGRESS SO
INTENDED. 

THAT HISTORY CANNOT BE STATED BRIEFLY.  IT HAS ITS ORIGIN IN THE
PATENT ACT OF 1836  FN6  WHICH AFFORDED AN APPLICANT AGGRIEVED BY A
RULING OF THE COMMISSIONER AN APPEAL TO A BOARD OF EXAMINERS.  FN7  BY
A LATER SECTION IT WAS PROVIDED THAT "WHENEVER A PATENT ON APPLICATION
SHALL HAVE BEEN REFUSED ON AN ADVERSE DECISION OF A BOARD OF EXAMINERS,
ON THE GROUND THAT THE PATENT APPLIED FOR WOULD INTERFERE WITH AN
UNEXPIRED PATENT," THE APPLICANT MIGHT HAVE REMEDY BY BILL IN EQUITY;
AND THE COURT MIGHT ADJUDGE THE APPLICANT ENTITLED TO A PATENT,
ACCORDING TO HIS CLAIM OR ANY PART OF IT.  ADJUDICATION FAVORABLE TO
THE APPLICANT WAS TO "AUTHORIZE THE COMMISSIONER TO ISSUE SUCH PATENT"
ON THE APPLICANT'S FILING A COPY OF THE ADJUDICATION "AND OTHERWISE
COMPLYING WITH THE REQUISITIONS OF THIS ACT."  FN8  IT WILL BE NOTED
THAT A BILL MIGHT BE FILED UNDER THIS STATUTE ONLY WHERE THE REJECTION
OF A CLAIM WAS FOR INTERFERENCE WITH AN OUTSTANDING PATENT.  BY THE ACT
OF MARCH 3, 1837,  FN9  THE SAME REMEDY WAS AFFORDED AN APPLICANT FOR
PATENT FOR AN IMPROVEMENT OR FOR "CORRECTION AND RE-ISSUE." 

BY THE ACT OF MARCH 3, 1839,  FN10  THE SAME REMEDY WAS EXTENDED "TO
ALL CASES WHERE PATENTS ARE REFUSED FOR ANY REASON WHATEVER, EITHER BY
THE COMMISSIONER OF PATENTS OR BY THE CHIEF JUSTICE OF THE DISTRICT OF
COLUMBIA, UPON APPEALS FROM THE DECISION OF SAID COMMISSIONER," AS WELL
AS WHERE THE REFUSAL WAS BASED ON ASSERTED INTERFERENCE.  THE REASON
FOR ADDING THE PHRASE CONCERNING THE DECISION OF THE CHIEF JUSTICE WAS
THAT, BY SEC. 11  FN11  OF THE SAME ACT, A SUMMARY APPEAL ON THE PATENT
OFFICE RECORD TO THIS JUDICIAL OFFICER WAS SUBSTITUTED FOR THE FORMER
APPEAL TO A BOARD OF EXAMINERS GIVEN BY THE ACT OF 1836.  FN12 

THUS A DISTRICT COURT MIGHT SET ASIDE, ON BILL FILED, ANY RULING
REFUSING A PATENT, EITHER ON INTERFERENCE OR OTHERWISE, WHETHER THE
RULING WERE THAT OF THE PATENT OFFICE OR OF A JUDGE OF THE CIRCUIT
COURT OF THE DISTRICT OF COLUMBIA ON APPEAL FROM THE PATENT OFFICE
DECISION. 

THE ACT OF JULY 8, 1870,  FN13  AMENDED, REVISED, AND CONSOLIDATED
EXISTING LAW.  IN SEC. 48 FN14  IT ENACTED THAT IN EX PARTE CASES AN
APPLICANT FOR PATENT OR REISSUE WHOSE CLAIMS HAD BEEN TWICE REJECTED
MIGHT APPEAL TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.  THE
HEARING WAS TO BE SUMMARY, TO BE ON THE OFFICE RECORD, AND THE DECISION
WAS "TO GOVERN THE FURTHER PROCEEDINGS IN THE CASE."  FN15  IN SEC. 52
IT PROVIDED THAT WHENEVER A PATENT ON APPLICATION "IS REFUSED, FOR ANY
REASON WHATEVER," EITHER BY THE COMMISSIONER OR BY THE SUPREME COURT OF
THE DISTRICT UPON APPEAL, THE REMEDY BY BILL IN EQUITY SHOULD BE
AVAILABLE.  THE ADJUDICATION WAS TO AUTHORIZE THE ISSUE OF A PATENT ON
THE APPLICANT'S FILING A COPY IN THE PATENT OFFICE "AND OTHERWISE
COMPLYING WITH THE REQUISITIONS OF LAW."  THIS STATUTE WAS CONSTRUED TO
REQUIRE AN APPEAL TO THE DISTRICT SUPREME COURT AS A CONDITION
PRECEDENT TO THE MAINTENANCE OF A BILL IN EQUITY.  FN16 

THE PROVISIONS OF THE ACT OF 1870 WERE CODIFIED IN THE REVISED
STATUTES OF 1873.  FN17  IN THE PROCESS THE WORDS "FOR ANY REASON
WHATEVER" WERE DELETED FROM SEC. 52, WHICH BECAME R.S. 4915.  THE
OMISSION WAS EVIDENTLY BECAUSE THE WORDS WERE SURPLUSAGE, SINCE THE
PURPOSE OF THE REVISERS WAS NOT "TO ATTEMPT ANY CHANGE WHATEVER IN THE
EXISTING LAW" EXCEPT "MERE CHANGES OF PHRASEOLOGY NOT AFFECTING THE
MEANING OF THE LAW."  FN18 

BY THE ACT OF FEBRUARY 9, 1893  FN19  THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA WAS CREATED AND JURISDICTION OF SUMMARY APPEALS
FROM PATENT OFFICE RULINGS WAS TRANSFERRED TO THAT COURT.  THUS THE
REMEDY BY BILL IN EQUITY WAS NOW TO BE PURSUED IN A DISTRICT COURT ONLY
AFTER AN APPEAL TO THE COURT OF APPEALS OF THE DISTRICT HAD RESULTED
ADVERSELY TO THE APPLICANT; AND AN ADJUDICATION IN THE EQUITY SUIT WAS
SUBJECTED TO REVIEW ON APPEAL. 

SO MATTERS STOOD UNTIL THE PASSAGE OF THE ACT OF MARCH 2, 1927.  FN20
IN THE HEARINGS ON THE BILL WHICH BECAME THE STATUTE, IT WAS PROPOSED
THAT CONGRESS ELIMINATE EITHER THE APPEAL OR THE BILL IN EQUITY, SOME
INTERESTED PARTIES SUGGESTING ABOLITION OF THE ONE REMEDY, OTHERS
ADVOCATING DROPPING THE OTHER.  CONGRESS DECIDED NOT TO DO AWAY WITH
EITHER, BUT TO ALLOW AN APPLICANT "TO HAVE THE DECISION OF THE PATENT
OFFICE REVIEWED EITHER BY THE COURT OF APPEALS OR BY FILING A BILL IN
EQUITY, BUT NOT BOTH."  FN21  IT IS EVIDENT THAT NO ALTERATION IN
RESPECT OF THE RULINGS WHICH COULD BE REVIEWED WAS INTENDED; BUT THE
NUMBER OF POSSIBLE APPEALS WAS TO BE REDUCED, WHILE SAVING TO LITIGANTS
THE OPTION OF PRODUCING NEW EVIDENCE IN A COURT, BY RETAINING THE
EQUITY PROCEDURE.  FN22    FINALLY, THE ACT OF MARCH 2, 1929  FN23
TRANSFERRED FROM THE COURT OF APPEALS OF THE DISTRICT TO THE COURT OF
CUSTOMS AND PATENT APPEALS JURISDICTION OF APPEALS FROM THE PATENT
OFFICE, BUT EX INDUSTRIA PROVIDED "NOTHING CONTAINED IN THIS ACT SHALL
BE CONSTRUED AS AFFECTING IN ANY WAY THE JURISDICTION OF THE COURT OF
APPEALS OF THE DISTRICT OF COLUMBIA IN EQUITY CASES."  THIS WAS OF
COURSE TO MAKE IT PLAIN THAT SUITS IN THE DISTRICT COURT OF THE
DISTRICT OF COLUMBIA SHOULD BE APPEALABLE AS ARE SUITS UNDER R.S. 4915
INSTITUTED IN DISTRICT COURTS IN CIRCUITS OUTSIDE THE DISTRICT. 

THUS IT IS CLEAR THAT THROUGHOUT MORE THAN A CENTURY CONGRESS HAS FOR
CORRECTION OF ERRONEOUS ADVERSE RULINGS, WHICH IF UNREVERSED WOULD END
THE PROCEEDINGS IN THE PATENT OFFICE, PRESERVED THE REMEDY BY BILL IN A
DISTRICT COURT EITHER AS ADDITIONAL TO OR ALTERNATIVE TO THAT BY
SUMMARY APPEAL AND HAS MADE THE EFFECT OF ADJUDICATION IN EQUITY THE
SAME AS THAT OF DECISION ON APPEAL. 

3.  THE COMMISSIONER OF PATENTS STATES THAT "WHEN CLAIMS ARE FINALLY
REJECTED BY THE EXAMINER AND HIS ACTION IS AFFIRMED BY THE BOARD OF
APPEALS, THE GROUNDS THEN STATED FOR SUCH REJECTION, AS WELL AS ANY
OTHER GROUNDS IN SUPPORT THEREOF, MAY BE SET UP BY THIS OFFICE IN
ANSWER TO A SUBSEQUENT SUIT BY THE APPLICANT UNDER REV. STAT. 4915.  IF
THE ADJUDICATION BY THE COURT IS FAVORABLE TO THE APPLICANT, IT IS THE
PRACTICE OF THIS OFFICE TO TREAT THAT JUDGMENT AS CONCLUSIVE WITH
RESPECT TO ANY GROUND OF REJECTION URGED BEFORE THE COURT IN DEFENSE OF
THE REFUSAL TO ALLOW THE CLAIMS IN ISSUE.  IN THE USUAL CASE, FOLLOWING
SUCH ADJUDICATION, THE APPLICATION IS ALLOWED AND, UPON PAYMENT OF THE
PRESCRIBED FEE, THE PATENT IS ISSUED.  HOWEVER, IN RARE INSTANCES
WHERE, AFTER TERMINATION OF THE SUIT, A NEW REFERENCE IS DISCOVERED
WHICH SHOWS LACK OF PATENTABILITY OF THE CLAIMS FOR A REASON NOT
CONSIDERED BY THE COURT, THIS OFFICE CONSIDERS ITSELF UNDER A DUTY TO
REJECT THE CLAIMS ON THE NEWLY DISCOVERED GROUND, AND TO REFUSE A
PATENT ON THOSE CLAIMS UNLESS THE APPLICANT CAN OVERCOME THE NEW GROUND
OF REJECTION.  SIMILARLY, IF ANOTHER APPLICANT OR A PATENTEE IS
CLAIMING SUBSTANTIALLY THE SAME SUBJECT MATTER AS THAT HELD PATENTABLE
IN THE REV. STAT. 4915 SUIT AND A QUESTION OF PRIORITY ARISES,
INTERFERENCE PROCEEDINGS MAY BE NECESSARY UNDER REV. STAT. 4904 TO
DETERMINE WHICH OF THE ADVERSE CLAIMANTS IS THE FIRST INVENTOR....  THE
FOREGOING IS BELIEVED TO HAVE BEEN THE CONSISTENT PRACTICE OF THIS
OFFICE FOR MANY YEARS." 

4.  THIS COURT HAS REPEATEDLY INDICATED A VIEW OF THE MEANING OF R.S.
4915 WHICH IS INCONSISTENT WITH THE DECISION BELOW,  FN24  ALTHOUGH THE
EXACT QUESTION HERE PRESENTED WAS NOT INVOLVED IN THE CASES UNDER
ADJUDICATION.  THE LOWER FEDERAL COURTS HAVE CONSISTENTLY CONSTRUED THE
FROM THAT AT BAR.  FN25  THEY HAVE SO HELD IN CASES WHERE IT
AFFIRMATIVELY APPEARED THAT FURTHER PROCEEDINGS IN THE PATENT OFFICE
WOULD BE NECESSARY FOLLOWING ADJUDICATION IN FAVOR OF THE APPLICANT,
FN26  AND WHERE THOUGH IT DID NOT APPEAR OF RECORD THAT FURTHER
PROCEEDINGS WOULD BE REQUIRED IN THE PATENT OFFICE, IT WAS EVIDENT THAT
THEY MIGHT ENSUE ADJUDICATION, AS WHERE A PATENT WAS DENIED FOR WANT OF
INVENTION.  FN27 AND, WHERE AN APPLICANT HAS SUCCEEDED IN A BILL FILED
UNDER R.S. 4915, THE COURTS HAVE NOT QUESTIONED THE POWER OF THE PATENT
OFFICE SUBSEQUENTLY TO DISALLOW THE CLAIMS FOR WANT OF INVENTION OVER A
NEWLY DISCOVERED REFERENCE TO THE PRIOR ART. FN28 

THE COURT BELOW RELIED UPON HILL V. WOOSTER, 132 U.S. 693, FOR ITS
HOLDING THAT A SUIT UNDER R.S. 4915 CANNOT SELECT A SINGLE ISSUE WHICH
AFFECTS THE APPLICANT'S RIGHT TO A PATENT, WITHOUT DETERMINING ALL THE
OTHER ISSUES ON WHICH THAT RIGHT DEPENDS.  THAT CASE WAS ONE IN WHICH
THE COMMISSIONER HAD DECIDED AN INTERFERENCE BETWEEN THE CLAIMS OF TWO
APPLICANTS IN FAVOR OF ONE OF THEM, AND ORDERED THAT A PATENT ISSUE. 
IN AN INTER PARTES SUIT BY THE UNSUCCESSFUL APPLICANT AGAINST THE
SUCCESSFUL ONE, THIS COURT HELD THAT IF IT APPEARED THAT NEITHER
APPLICATION DISCLOSED INVENTION (A MATTER WHICH SHOULD HAVE MOVED THE
COMMISSIONER NOT TO DECLARE AN INTERFERENCE) THE BILL SHOULD BE
DISMISSED.  FN29  THE COURT DID NOT PURPORT TO DECIDE WHAT PATENT
OFFICE RULINGS ARE REVIEWABLE UNDER R.S. 4915.  FN30 

THE RULING OF THE BOARD OF APPEALS IN THE INSTANT CASE WAS NEITHER A
PROCEDURAL RULING  FN31 NOR AN INTERLOCUTORY ONE  FN32  AS TO WHICH THE
DISTRICT COURT SHOULD NOT ENTERTAIN A SUIT UNDER R.S. 4915.  ON THE
CONTRARY, IT FINALLY DENIED A PATENT ON THE CLAIMS PRESENTED.  IN THIS
RESPECT IT WAS LIKE A DISMISSAL OF A SUIT IN A COURT.  UNLESS THE
APPLICANT COULD SUE TO CORRECT ERROR IN THAT DISMISSAL, HE COULD NEVER
SUE UNDER R.S. 4915.  THAT HE WAS ACCORDED A RIGHT OF SUIT IN THIS CASE
THE LANGUAGE OF THE STATUTE, ITS HISTORY, THE ADMINISTRATIVE
CONSTRUCTION AND JUDICIAL DECISION UNITE IN AFFIRMING. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY TO THIS OPINION.  REVERSED. 

FN1  35 U.S.C. SEC. 63. 

FN2  144 F.2D 514. 

FN3  SEE R.S. 4914, 35 U.S.C. SEC. 62. 

FN4  BUTTERWORTH V. HOE, 112 U.S. 50, 61. 

FN5  R.S. 4911, SUPRA. 

FN6  5 STAT. 117. 

FN7  SEC. 7, 5 STAT. 119-120. 

FN8  SEC. 16, 5 STAT. 123. 

FN9  5 STAT. 191. 

FN10  SEC. 10, 5 STAT. 354. 

FN11  5 STAT. 354. 

FN12  BY THE ACT OF AUGUST 30, 1852, 10 STAT. 75, SUCH SUMMARY APPEAL
MIGHT BE HEARD BY ANY JUDGE OF THE CIRCUIT COURT OF THE DISTRICT OF
COLUMBIA. 

FN13  16 STAT. 198. 

FN14  16 STAT. 205. 

FN15  SEC. 50, 16 STAT. 205. 

FN16  KIRK V. COMMISSIONER OF PATENTS (1886), C.D. 440; FEKETE V.
ROBERTSON, 17 F.2D 335; COOPER V. ROBERTSON, 38 F.2D 852. 

FN17  THE RELEVANT SECTIONS ARE 4911-15 INCLUSIVE. 

FN18  2 CONG. REC. 646. 

FN19  27 STAT. 434, 436. 

FN20  44 STAT. 1335. 

FN21  H.R. NO. 1889, PP. 2-3; S.R. NO. 1313, P. 4, 69TH CONG., 2D
SESS. 

FN22  SEE H.R. 1889, SUPRA, P. 3; HEARINGS, HOUSE COMMITTEE ON
PATENTS, ON H.R. 6552 AND H.R. 7087, 69TH CONG., 1ST SESS., PP. 21-22;
HEARINGS, HOUSE COMMITTEE ON PATENTS, ON H.R. 7563 AND H.R. 13487, 69TH
CONG., 2D SESS., P. 11; HEARINGS, SENATE COMMITTEE ON PATENTS, ON S.
4812, 69TH CONG., 2D SESS., P. 15; HEARINGS, HOUSE COMMITTEE ON THE
JUDICIARY, ON H.R. 6687, 70TH CONG., 1ST SESS., PASSIM; CF. HEARINGS,
HOUSE COMMITTEE ON PATENTS, ON H.R. 7563 AND H.R. 13487, 69TH CONG., 2D
SESS., P. 31; HEARINGS, HOUSE COMMITTEE ON PATENTS, ON H.R. 6252 AND
H.R. 7087, 69TH CONG., 1ST SESS., P. 79. 

FN23  45 STAT. 1475. 

FN24  GANDY V. MARBLE, 122 U.S. 432, 439; IN RE HIEN, 166 U.S. 432,
439; FRASCH V. MOORE, 211 U.S. 1, 8-9; AMERICAN STEEL FOUNDRIES V.
ROBERTSON, 262 U.S. 209, 212-213; UNITED STATES EX REL. BALDWIN CO. V.
ROBERTSON, 265 U.S. 168, 180-181. 

FN25  DILG V. MOORE, 34 APP. D.C. 106; E.I. DU PONT DE NEMOURS & CO.
V. COE, 89 F.2D 679; PITMAN V. COE, 68 F.2D 412; POWER PATENTS CO. V.
COE, 110 F.2D 550; TULLY V. ROBERTSON, 19 F.2D 954; MONOPOWER CORP. V.
COE, 33 F.SUPP.  934; BOOTH FISHERIES CORP. V. COE, 114 F.2D 462;
FORWARD PROCESS CO. V. COE, 116 F.2D 946. 

FN26  PITMAN V. COE, SUPRA; INTERNATIONAL CELLUCOTTON CO. V. COE, 85
F.2D 869; AMERICAN CYANAMID CO. V. COE, 106 F.2D 851. 

FN27  AMERICAN STEEL & WIRE CO. V. COE, 105 F.2D 17; ABERCROMBIE V.
COE, 119 F.2D 458; GENERAL MOTORS CORP. V. COE, 120 F.2D 736; RADTKE
PATENTS CORP. V. COE, 122 F.2D 937; HYDRAULIC PRESS CORP. V. COE, 124
F.2D 521; MINNESOTA MINING & MFG. CO. V. COE, 125 F.2D 198; POULSEN V.
MCDOWELL, 142 F.2D 267. 

FN28  GOLD V. NEWTON, 254 F. 824. 

FN29  SECTION 16 OF THE ACT OF 1836, 5 STAT. 123, SUPRA, EXPRESSLY
PROVIDED THAT UPON A BILL FILED AS A RESULT OF PATENT OFFICE DECISION
ON AN INTERFERENCE THE COURT MIGHT ADJUDGE EITHER OF THE PATENTS VOID
IN WHOLE OR IN PART.  THIS LANGUAGE WAS EVIDENTLY OMITTED IN LATER ACTS
AS SURPLUSAGE, FOR OBVIOUSLY IF EITHER PATENT WAS VOID FOR LACK OF
INVENTION OR OTHER CAUSE, THE QUESTION OF INTERFERENCE DISAPPEARED. 

FN30  THIS IS EQUALLY TRUE OF RADTKE PATENTS CORP. V. COE, 122 F.2D
937, ON WHICH THE COURT BELOW RELIED. 

FN31  BUTTERWORTH V. HOE, 112 U.S. 50; SHOEMAKER V. ROBERTSON, 54
F.2D 456; CHESSIN V. ROBERTSON, 63 F.2D 267; CHERRY-BURRELL CORP. V.
COE, 143 F.2D 372. 

FN32  AMERICAN CABLE CO. V. JOHN A. ROEBLING'S SONS CO., 65 F.2D 801;
SYNTHETIC PLASTICS CO. V. ELLIS-FOSTER CO., 78 F.2D 847. 
..END :























CORN PRODUCTS CO. V. COMM'N, 324 U.S. 726 


NO. 680.  ARGUED FEBRUARY 28, MARCH 1, 1945.  - DECIDED APRIL 23, 1945. 
- 144 F.2D 211, AFFIRMED. 


1.  BY PETITIONERS' BASING-POINT SYSTEM OF PRICING IN THEIR SALES OF
GLUCOSE, THEIR PRODUCT WAS SOLD AT DELIVERED PRICES COMPUTED BY ADDING
TO A BASE PRICE AT CHICAGO THE PUBLISHED FREIGHT TARIFF FROM CHICAGO TO
THE DELIVERY POINTS, EVEN THOUGH DELIVERIES WERE IN FACT MADE FROM
THEIR KANSAS CITY FACTORY AS WELL AS FROM THEIR CHICAGO FACTORY.  ON
SHIPMENTS FROM KANSAS CITY, THE DELIVERED PRICE TO THE PURCHASER THUS
DEPENDED NOT ONLY ON THE BASE PRICE PLUS THE ACTUAL FREIGHT FROM KANSAS
CITY, BUT ALSO UPON THE DIFFERENCE BETWEEN THE ACTUAL FREIGHT PAID AND
THE FREIGHT RATE FROM CHICAGO.  HELD: 

(A)  THE PRICE DISCRIMINATIONS RESULTING FROM PETITIONERS' BASING
POINT SYSTEM VIOLATED SEC. 2(A) OF THE CLAYTON ACT, AS AMENDED.  PP.
732, 737. 

(A)  IT IS IMMATERIAL THAT THERE WAS NO DISCRIMINATION BETWEEN BUYERS
AT THE SAME POINTS OF DELIVERY.  P. 734. 

(B)  THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE CLAYTON ACT
OR THE AMENDATORY ROBINSON-PATMAN ACT WHICH CONFINES THEIR APPLICATION
TO DISCRIMINATIONS BETWEEN BUYERS AT THE SAME DESTINATION.  P. 734. 

(C)  THE CONTENTION THAT BASING-POINT SYSTEMS WERE WELL KNOWN PRIOR
TO THE ENACTMENT OF THE ROBINSON-PATMAN ACT AND WERE CONSIDERED BY
CONGRESS TO BE LEGAL, AND THAT THEIR LEGALITY SHOULD BE SUSTAINED IN
THE ABSENCE OF A CLEAR COMMAND TO THE CONTRARY, IS REJECTED.  P. 734. 

(D)  MAPLE FLOORING ASSN. V. UNITED STATES, 268 U.S. 563, AND CEMENT
MANUFACTURERS ASSN. V. UNITED STATES, 268 U.S. 588, DISTINGUISHED.  P.
735. 

(B) THE FINDINGS AND THE EVIDENCE SUPPORT THE FEDERAL TRADE
COMMISSION'S DETERMINATION THAT PETITIONERS' DISCRIMINATIONS IN PRICE
HAVE THE EFFECT ON COMPETITION WHICH BRINGS THE DISCRIMINATIONS WITHIN
THE PROHIBITION OF SEC. 2(A) OF THE ACT.  P. 738. 

(A)  UNDER SEC. 2(A) DISCRIMINATIONS NEED NOT IN FACT HAVE HAD A
"SUBSTANTIALLY" ADVERSE EFFECT ON COMPETITION; IT IS SUFFICIENT THAT
THEY "MAY" HAVE THAT EFFECT.  P. 738. 

(B)  THE WEIGHT TO BE ATTRIBUTED TO THE FACTS PROVEN OR STIPULATED,
AND THE INFERENCES TO BE DRAWN FROM THEM, ARE FOR THE COMMISSION TO
DETERMINE, NOT THE COURTS.  P. 739. 

2.  PETITIONERS ALSO VIOLATED SEC. 2(A) OF THE CLAYTON ACT, AS
AMENDED, BY PERMITTING CERTAIN FAVORED CUSTOMERS TO SECURE OPTIONS FOR
THE PURCHASE OF GLUCOSE, AND TO TAKE DELIVERY AT THE FORMER LOWER
PRICES, FOR PERIODS LONGER THAN THOSE USUALLY PERMITTED TO OTHER
CUSTOMERS; AND BY PERMITTING CERTAIN TANK WAGON CUSTOMERS TO BOOK
ORDERS AT THE LOWER PRICES CHARGED FOR TANK CAR DELIVERIES AND TO TAKE
DELIVERIES BY TANK WAGON OVER EXTENDED PERIODS OF TIME.  P. 740. 

(A)  EVEN ASSUMING THAT THE PRACTICES PROHIBITED BY SEC. 2(A) ARE
DISCRIMINATIONS IN PRICE AND NOT IN THE TERMS AND CONDITIONS OF SALE
OTHER THAN PRICE, THE PRESENT DISCRIMINATIONS IN THE TERMS OF SALE
OPERATED TO PERMIT THE FAVORED CUSTOMERS TO PURCHASE AT A LOWER PRICE
THAN OTHER CUSTOMERS, SO THAT THEIR ONLY PRACTICAL EFFECT WAS TO
ESTABLISH DISCRIMINATIONS IN PRICE, PRECISELY THE EVIL AT WHICH THE
STATUTE WAS AIMED.  P. 740. 

(B)  SECTION 2(A) APPLIES TO INDIRECT AS WELL AS DIRECT
DISCRIMINATIONS IN PRICE.  P. 740. 

(C)  PETITIONERS FAILED TO SUSTAIN THE BURDEN OF SHOWING THAT THE
PRICE DISCRIMINATIONS WERE GRANTED FOR THE PURPOSE OF MEETING THE
"EQUALLY LOW" PRICES OF COMPETITORS AND THAT THEY WERE THEREFORE
EXCEPTED FROM THE PROHIBITION OF SEC. 2(A) OF THE CLAYTON ACT BY THE
PROVISO OF SUBSECTION (B) OF SEC. 2 OF THAT ACT.  P. 741. 

(D)  THE STIPULATED FACTS SUPPORT THE COMMISSION'S FINDING THAT THE
PRACTICES IN QUESTION HAVE THE EFFECT ON COMPETITION WHICH BRINGS THEM
WITHIN THE PROHIBITION OF THE ACT.  P. 741. 

3.  THE PRICE DISCRIMINATIONS WHICH RESULTED FROM PETITIONERS'
ALLOWANCE OF DISCOUNTS TO CERTAIN FAVORED PURCHASERS OF GLUTEN FEED AND
MEAL, BY-PRODUCTS OF PETITIONERS' REFINING OF CORN, AND ALLOWANCE OF
DISCOUNTS TO CERTAIN FAVORED PURCHASERS OF STARCH AND STARCH PRODUCTS,
VIOLATED SEC. 2(A).  P. 742. 

(A)  THE STATUTE DOES NOT REQUIRE THAT THE DISCRIMINATIONS MUST IN
FACT HAVE HARMED COMPETITION, BUT ONLY THAT THERE IS A REASONABLE
POSSIBILITY THAT THEY "MAY" HAVE SUCH AN EFFECT.  P. 742. 

(B)  FROM THE EVIDENCE IT WAS PERMISSIBLE FOR THE COMMISSION TO INFER
THAT THESE DISCRIMINATORY ALLOWANCES WERE A SUBSTANTIAL THREAT TO
COMPETITION.  P. 742. 

4.  PETITIONERS' ARRANGEMENT WITH THE CURTISS COMPANY FOR ADVERTISING
DEXTROSE, ON TERMS NOT PROPORTIONALLY ACCORDED OTHER PURCHASERS,
VIOLATED SEC. 2(E) OF THE CLAYTON ACT.  P. 743. 

(A)  THE ARRANGEMENT WAS MADE WITH THE CURTISS COMPANY AS A
"PURCHASER" WITHIN THE MEANING OF THE ACT.  THE STATUTE DOES NOT
REQUIRE THAT THE DISCRIMINATION IN FAVOR OF ONE PURCHASER AGAINST
ANOTHER SHALL BE PROVIDED FOR IN A PURCHASE CONTRACT OR BE REQUIRED BY
IT.  IT IS ENOUGH IF THE DISCRIMINATION BE MADE IN FAVOR OF ONE WHO IS
A PURCHASER AND DENIED TO ANOTHER PURCHASER OR OTHER PURCHASERS OF THE
COMMODITY.  P. 743. 

(B)  THE CURTISS COMPANY, WHICH PURCHASED DEXTROSE FROM PETITIONERS
AND CONVERTED IT WITH OTHER INGREDIENTS INTO CANDY WHICH IT SOLD, WAS A
PURCHASER OF A COMMODITY BOUGHT FOR "RESALE," AFTER "PROCESSING,"
WITHIN THE MEANING OF THE ACT.  P. 744. 

(C)  THE EVIDENCE SHOWS THAT THE DISCRIMINATION IN FAVOR OF THE
CURTISS COMPANY WAS A DISCRIMINATION AGAINST SALES IN INTERSTATE
COMMERCE.  P. 745. 

(D)  THE ADVERTISING FURNISHED BY PETITIONERS WAS A SERVICE OR
FACILITY "CONNECTED WITH THE PROCESSING  ...  SALE, OR OFFERING FOR
SALE" OF THE COMMODITY PURCHASED BY THE CURTISS COMPANY UPON TERMS NOT
ACCORDED TO OTHER PURCHASERS.  P. 745. 

CORN PRODUCTS REFINING CO. ET AL. V. FEDERAL TRADE COMMISSION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 323 U.S. 706, TO REVIEW A JUDGMENT SUSTAINING AN ORDER OF
THE FEDERAL TRADE COMMISSION. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, A PARENT CORPORATION AND ITS SALES SUBSIDIARY, USE A
BASING POINT SYSTEM OF PRICING IN THEIR SALES OF GLUCOSE.  THEY SELL
ONLY AT DELIVERED PRICES, COMPUTED BY ADDING TO A BASE PRICE AT CHICAGO
THE PUBLISHED FREIGHT TARIFF FROM CHICAGO TO THE SEVERAL POINTS OF
DELIVERY, EVEN THOUGH DELIVERIES ARE IN FACT MADE FROM THEIR FACTORY AT
KANSAS CITY AS WELL AS FROM THEIR CHICAGO FACTORY.  CONSEQUENTLY THERE
IS INCLUDED IN THE DELIVERED PRICE ON SHIPMENTS FROM KANSAS CTY AN
AMOUNT OF "FREIGHT" WHICH USUALLY DOES NOT CORRESPOND TO FREIGHT
ACTUALLY PAID BY PETITIONERS. 

THE FEDERAL TRADE COMMISSION INSTITUTED THIS PROCEEDING UNDER SEC. 11
OF THE CLAYTON ACT, C. 323, 38 STAT. 730, 15 U.S.C. SEC. 21, CHARGING
THAT PETITIONERS' USE OF THIS SINGLE BASING POINT SYSTEM RESULTED IN
DISCRIMINATIONS IN PRICE BETWEEN DIFFERENT PURCHASERS OF THE GLUCOSE,
AND VIOLATED SEC. 2(A) OF THE ACT, AS AMENDED BY SEC. 1 OF THE ROBINSON
PATMAN ACT, C. 592, 49 STAT. 1526, 15 U.S.C. SEC. 13.  THE COMPLAINT
ALSO CHARGED PETITIONERS WITH OTHER DISCRIMINATIONS IN PRICES, OR IN
SERVICES RENDERED TO FAVORED CUSTOMERS, WHICH WILL PRESENTLY BE STATED
IN DETAIL, ALL IN VIOLATION OF SEC. 2(A) OR SEC. 2(E) OF THE CLAYTON
ACT, AS AMENDED. 


"(A)  ...  IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE
..., EITHER DIRECTLY OR INDIRECTLY, TO DISCRIMINATE IN PRICE BETWEEN
DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND QUALITY,  ...
WHERE THE EFFECT OF SUCH DISCRIMINATION MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION OR TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE, OR TO
INJURE, DESTROY, OR PREVENT COMPETITION WITH ANY PERSON WHO EITHER
GRANTS OR KNOWINGLY RECEIVES THE BENEFIT OF SUCH DISCRIMINATION, OR
WITH CUSTOMERS OF EITHER OF THEM:  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  ..." 

AFTER HEARINGS, AT WHICH MUCH OF THE EVIDENCE WAS STIPULATED, THE
COMMISSION MADE ITS FINDINGS OF FACT.  IT CONCLUDED THAT PETITIONERS
HAD VIOLATED SEC. 2 OF THE CLAYTON ACT, AS AMENDED, AND ORDERED THEM TO
CEASE AND DESIST FROM SUCH VIOLATIONS.  ON PETITION TO REVIEW THE
COMMISSION'S ORDER, THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH
CIRCUIT SUSTAINED THE ORDER, EXCEPT IN PARTICULARS NOT MATERIAL HERE. 
144 F.2D 211. 

WE GRANTED CERTIORARI, 323 U.S. 706, BECAUSE THE QUESTIONS INVOLVED
ARE OF IMPORTANCE IN THE ADMINISTRATION OF THE CLAYTON ACT IN VIEW OF
THE WIDESPREAD USE OF BASING POINT PRICE SYSTEMS.  THE PRINCIPAL
QUESTIONS FOR DECISION ARE WHETHER, WHEN SHIPMENTS ARE MADE FROM KANSAS
CITY, PETITIONERS' BASING POINT SYSTEM RESULTS IN DISCRIMINATIONS IN
PRICE BETWEEN DIFFERENT PURCHASERS OF GLUCOSE, WITHIN THE MEANING OF
SEC. 2(A); AND, IF SO, WHETHER THERE IS SUPPORT IN THE EVIDENCE FOR THE
FINDING OF THE COMMISSION THAT THESE DISCRIMINATIONS HAVE THE EFFECT ON
COMPETITION DEFINED BY THAT SECTION.  FURTHER QUESTIONS ARE RAISED AS
TO WHETHER THE OTHER DISCRIMINATIONS CHARGED VIOLATE SEC. 2(A) AND SEC.
2(E). 

            I. BASING POINT PRACTICES. 

THE EVIDENCE AS TO PETITIONERS' BASING POINT SYSTEM FOR THE SALE OF
GLUCOSE WAS STIPULATED.  THE COMMISSION FOUND FROM THE EVIDENCE THAT
PETITIONERS HAVE TWO PLANTS FOR THE MANUFACTURE OF GLUCOSE OR CORN
SYRUP, ONE AT ARGO, ILLINOIS, WITHIN THE CHICAGO SWITCHING DISTRICT,
AND THE OTHER AT KANSAS CITY, MISSOURI.  THE CHICAGO PLANT HAS BEEN IN
OPERATION SINCE 1910, AND THAT AT KANSAS CITY SINCE 1922.  PETITIONERS'
BULK SALES OF GLUCOSE ARE AT DELIVERED PRICES, WHICH ARE COMPUTED,
WHETHER THE SHIPMENTS ARE FROM CHICAGO OR KANSAS CITY, AT PETITIONERS'
CHICAGO PRICES, PLUS THE FREIGHT RATE FROM CHICAGO TO THE PLACE OF
DELIVERY.  THUS PURCHASERS IN ALL PLACES OTHER THAN CHICAGO PAY A
HIGHER PRICE THAN DO CHICAGO PURCHASERS.  AND IN THE CASE OF ALL
SHIPMENTS FROM KANSAS CITY TO PURCHASERS IN CITIES HAVING A LOWER
FREIGHT RATE FROM KANSAS CITY THAN FROM CHICAGO, THE DELIVERED PRICE
INCLUDES UNEARNED OR "PHANTOM" FREIGHT, TO THE EXTENT OF THE DIFFERENCE
IN FREIGHT RATES.  CONVERSELY, WHEN THE FREIGHT FROM KANSAS CITY TO THE
POINT OF DELIVERY IS MORE THAN THAT FROM CHICAGO, PETITIONERS MUST
"ABSORB" FREIGHT UPON SHIPMENTS FROM KANSAS CITY, TO THE EXTENT OF THE
DIFFERENCE IN FREIGHT. 

THE COMMISSION ILLUSTRATED THE OPERATION OF THE SYSTEM BY
PETITIONERS' DELIVERED PRICES FOR GLUCOSE IN BULK IN TWELVE WESTERN AND
SOUTHWESTERN CITIES, TO WHICH SHIPMENTS WERE USUALLY MADE FROM KANSAS
CITY.  ON AUGUST 1, 1939, THE FREIGHT RATES TO THESE POINTS OF DELIVERY
FROM CHICAGO WERE FOUND TO EXCEED THOSE FROM KANSAS CITY BY FROM 4 TO
40 CENTS PER HUNDRED POUNDS, AND TO THAT EXTENT THE DELIVERED PRICES
INCLUDED UNEARNED OR PHANTOM FREIGHT.  AS PETITIONERS' CHICAGO PRICE
WAS THEN $2.09 PER HUNDRED POUNDS, THIS PHANTOM FREIGHT FACTOR WITH
RESPECT TO DELIVERIES TO THESE TWELVE CITIES REPRESENTED FROM 2 TO 19%
OF THE CHICAGO BASE PRICE.  FROM THIS IT FOLLOWS, AS WILL PRESENTLY BE
SEEN, THAT PETITIONERS' NET RETURN AT THEIR KANSAS CITY FACTORY ON
SALES TO THESE TWELVE CITIES, IN EFFECT THEIR F.O.B. FACTORY PRICE,
VARIED ACCORDING TO THE AMOUNT OF PHANTOM FREIGHT INCLUDED IN THE
DELIVERED PRICE. 

MUCH OF PETITIONERS' GLUCOSE IS SOLD TO CANDY MANUFACTURERS, WHO ARE
IN COMPETITION WITH EACH OTHER IN THE SALE OF THEIR CANDY.  GLUCOSE IS
THE PRINCIPAL INGREDIENT IN MANY VARIETIES OF LOW-PRICED CANDIES, WHICH
ARE SOLD ON NARROW MARGINS OF PROFIT.  CUSTOMERS FOR SUCH CANDIES MAY
BE DIVERTED FROM ONE MANUFACTURER TO ANOTHER BY A DIFFERENCE IN PRICE
OF A SMALL FRACTION OF A CENT PER POUND. 

THE COMMISSION FOUND THAT THE HIGHER PRICES PAID FOR GLUCOSE
PURCHASED FROM PETITIONERS BY CANDY MANUFACTURERS LOCATED IN CITIES
OTHER THAN CHICAGO, RESULT IN VARYING DEGREE IN HIGHER COSTS OF
PRODUCING THE CANDIES.  THE DEGREE IN EACH INSTANCE VARIES WITH THE
DIFFERENCE IN THE DELIVERED PRICE OF THE GLUCOSE, AND THE PROPORTION OF
GLUCOSE IN THE PARTICULAR CANDY.  MANUFACTURERS WHO PAY UNEARNED OR
PHANTOM FREIGHT UNDER PETITIONERS' BASING POINT SYSTEM NECESSARILY PAY
RELATIVELY HIGHER COSTS FOR THEIR RAW MATERIAL THAN DO THOSE
MANUFACTURERS WHOSE LOCATION WITH RELATION TO THE BASING POINT IS SUCH
THAT THEY ARE ABLE TO PURCHASE AT THE BASE PRICE PLUS ONLY THE FREIGHT
ACTUALLY PAID.  THE COMMISSION FOUND THAT THE PAYMENT OF THESE
INCREASED PRICES IMPOSED BY THE BASING POINT SYSTEM "MAY  ...
DIMINISH" THE MANUFACTURERS' ABILITY TO COMPETE WITH THOSE BUYERS AT
LOWER PRICES. 

THE COMMISSION CONCLUDED FROM THESE FACTS THAT PETITIONERS' BASING
POINT SYSTEM RESULTED IN DISCRIMINATIONS IN PRICE AMONG PURCHASERS OF
GLUCOSE, AND THAT THE DISCRIMINATIONS RESULT IN SUBSTANTIAL HARM TO
COMPETITION AMONG SUCH PURCHASERS.  PETITIONERS CHALLENGE EACH
CONCLUSION. 

FIRST.  SECTION 2(A) OF THE CLAYTON ACT, AS AMENDED, MAKES IT
UNLAWFUL FOR ANY PERSON, "EITHER DIRECTLY OR INDIRECTLY, TO
DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF
LIKE GRADE AND QUALITY  ..."  THE STATUTE PERMITS DIFFERENTIALS "WHICH
MAKE ONLY DUE ALLOWANCE FOR DIFFERENCES IN THE COST OF MANUFACTURE,
SALE, OR DELIVERY  ..." 

PETITIONERS' PRICING SYSTEM RESULTS INEVITABLY IN SYSTEMATIC PRICE
DISCRIMINATIONS, SINCE THE PRICES THEY RECEIVE UPON DELIVERIES FROM
KANSAS CITY BEAR RELATION TO FACTORS OTHER THAN ACTUAL COSTS OF
PRODUCTION OR DELIVERY.  AS IN THE CASE OF THE TWELVE CITIES SELECTED
BY THE COMMISSION FOR ILLUSTRATIVE PURPOSES, THE FREIGHT ACTUALLY PAID
BY PETITIONERS IN MAKING DELIVERIES USUALLY VARIES FROM THE FREIGHT
FACTOR FROM CHICAGO, USED IN COMPUTING THE DELIVERED PRICE.  WHEN THE
ACTUAL FREIGHT IS THE LESSER OF THE TWO, PETITIONERS CHARGE AND COLLECT
UNEARNED OR PHANTOM FREIGHT; WHEN IT IS THE GREATER, PETITIONERS ABSORB
THE EXCESS FREIGHT, WHICH THEY PAY, BUT DO NOT INCLUDE IN THE
COMPUTATION OF THEIR DELIVERED PRICE. 

IN EITHER EVENT, ON SHIPMENTS FROM KANSAS CITY, THE DELIVERED PRICE
TO THE PURCHASER DEPENDS NOT ONLY ON THE BASE PRICE PLUS THE ACTUAL
FREIGHT FROM KANSAS CITY, BUT ALSO UPON THE DIFFERENCE BETWEEN THE
ACTUAL FREIGHT PAID AND THE FREIGHT RATE FROM CHICAGO WHICH IS INCLUDED
IN THE DELIVERED PRICE.  THIS DIFFERENCE ALSO RESULTS IN VARYING NET
PRICES TO PETITIONERS AT THEIR FACTORY AT KANSAS CITY, ACCORDING TO THE
DESTINATION OF THE GLUCOSE.  THE FACTORY NET VARIES ACCORDING AS
PETITIONERS COLLECT PHANTOM FREIGHT OR ABSORB FREIGHT, AND IN EACH CASE
IN THE AMOUNT OF THIS FREIGHT DIFFERENTIAL.  FN1  THE PRICE
DISCRIMINATIONS RESULTING FROM THIS SYSTEMATIC INCLUSION OF THE FREIGHT
DIFFERENTIAL IN COMPUTING THE DELIVERED PRICE ARE NOT SPECIFICALLY
PERMITTED BY THE STATUTE.  HENCE THEY ARE UNLAWFUL, UNLESS, AS
PETITIONERS ARGUE, THERE IS AN IMPLICIT EXCEPTION TO THE STATUTE FOR
SUCH A BASING POINT SYSTEM. 

PETITIONERS POINT OUT THAT THERE IS NO DISCRIMINATION UNDER THEIR
BASING POINT SYSTEM BETWEEN BUYERS AT THE SAME POINTS OF DELIVERY, AND
URGE THAT THE PROHIBITION OF SEC. 2(A) IS DIRECTED ONLY AT PRICE
DISCRIMINATIONS BETWEEN BUYERS AT THE SAME DELIVERY POINTS.  THERE IS
NOTHING IN THE WORDS OF THE STATUTE TO SUPPORT SUCH A DISTINCTION,
SINCE THE STATUTE IS NOT COUCHED IN TERMS OF LOCALITY.  AND ITS PURPOSE
TO PREVENT INJURIES TO COMPETITION THROUGH PRICE DISCRIMINATIONS WOULD
PRECLUDE ANY SUCH DISTINCTION, NOT REQUIRED BY ITS LANGUAGE.  THE
PURCHASERS OF GLUCOSE FROM PETITIONERS ARE FOUND TO BE IN COMPETITION
WITH EACH OTHER, EVEN THOUGH THEY ARE IN DIFFERENT LOCALITIES.  THE
INJURY TO THE COMPETITION OF PURCHASERS IN DIFFERENT LOCALITIES IS NO
LESS HARMFUL THAN IF THEY WERE IN THE SAME CITY. 

WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE CLAYTON OR ROBINSON
PATMAN ACTS TO SUPPORT THE SUGGESTED DISTINCTION.  IT IS TRUE THAT SEC.
3 OF THE ROBINSON-PATMAN ACT, 15 U.S.C. SEC. 13A, INCORPORATING THE
BORAH-VAN NUYS BILL, S. 4171, 74TH CONG., 2D SESS., IMPOSES CRIMINAL
PENALTIES FOR SELLING GOODS "IN ANY PART OF THE UNITED STATES AT PRICES
LOWER THAN THOSE EXACTED  ... ELSEWHERE IN THE UNITED STATES FOR THE
PURPOSE OF DESTROYING COMPETITION  ..."  BUT THIS SECTION DOES NOT
RESTRICT THE OPERATION OF THE PROHIBITIONS, WITH CIVIL SANCTIONS, OF
THE ROBINSON-PATMAN AMENDMENTS TO SEC. 2(A) OF THE CLAYTON ACT.  THIS
WAS SPECIFICALLY POINTED OUT BY THE CONFERENCE REPORT ON THE ROBINSON
PATMAN ACT.  FN2  H. REP. NO. 2951, 74TH CONG., 2D SESS., P. 8. 

PETITIONERS FURTHER CONTEND THAT BASING POINT SYSTEMS WERE WELL KNOWN
PRIOR TO THE ENACTMENT OF THE ROBINSON-PATMAN ACT AND WERE CONSIDERED
BY CONGRESS TO BE LEGAL.  FROM THIS PETITIONERS CONCLUDE THAT THEY
REMAINED LEGAL IN THE ABSENCE OF A CLEAR COMMAND TO THE CONTRARY.  CF.
PARKER V. MOTOR BOAT SALES, 314 U.S. 244; HELVERING V. GRIFFITHS, 318
U.S. 371.  BUT WE THINK THAT THE PREMISE FALLS, AND WITH IT THE
CONCLUSION, WHATEVER IT MIGHT BE IF THE PREMISE WERE VALID. 

IN SUPPORT OF THE LEGALITY OF BASING POINT SYSTEMS, PETITIONERS RELY
ON MAPLE FLOORING ASSN. V. UNITED STATES, 268 U.S. 563, 570, AND CEMENT
MANUFACTURERS ASSN. V. UNITED STATES, 268 U.S. 588, 597.  BUT THESE
WERE SUITS TO RESTRAIN VIOLATIONS OF THE SHERMAN ACT, AND DID NOT
INVOLVE THE PROHIBITION OF THE CLAYTON ACT UPON DISCRIMINATIONS IN
PRICE.  THE ONLY QUESTION FOR DECISION IN THOSE CASES WAS WHETHER THERE
WAS A CONCERTED PRICE-FIXING SCHEME AMONG COMPETING SELLERS,
ACCOMPLISHED IN PART BY THEIR ADOPTION OF A UNIFORM BASING POINT
SYSTEM; IN FACT, NO PROHIBITED CONCERT OF ACTION WAS FOUND. 

IN ANY EVENT, THE BASING POINT SYSTEMS INVOLVED IN THOSE CASES WERE
QUITE UNLIKE THAT USED BY PETITIONERS.  IN THE MAPLE FLOORING CASE,
SUPRA, THE SINGLE BASING POINT WAS SO CLOSE TO MOST OF THE POINTS OF
PRODUCTION AS TO RESULT IN BUT TRIVIAL FREIGHT VARIANCES; AND THE
DEFENDANTS IN THAT CASE WERE WILLING TO SELL ON A F.O.B. MILL BASIS,
WHENEVER THE PURCHASER SO REQUESTED.  IN THE CEMENT CASE, SUPRA, THE
DEFENDANTS USED A MULTIPLE BASING POINT SYSTEM, WITH A BASING POINT AT
OR NEAR EACH POINT OF PRODUCTION.  UNDER THIS SYSTEM, ANY MANUFACTURER,
IN ORDER TO COMPETE IN THE TERRITORY CLOSER FREIGHTWISE TO ANOTHER,
WOULD ABSORB FREIGHT, BY ADJUSTING HIS MILL PRICE TO MAKE HIS DELIVERED
PRICE AS LOW AS THAT OF HIS COMPETITORS.  UNDER THIS SYSTEM THE
DELIVERED PRICE FOR ANY LOCALITY WAS DETERMINED BY THE NEAREST BASING
POINT.  WE HAVE NO OCCASION TO DECIDE WHETHER A BASING POINT SYSTEM
SUCH AS THAT IN THE CEMENT CASE IS PERMISSIBLE UNDER THE CLAYTON ACT,
IN VIEW OF THE PROVISIONS OF SEC. 2(B), PERMITTING REDUCTIONS IN PRICE
IN ORDER TO MEET A COMPETITOR'S EQUALLY LOW PRICE.  CF. FEDERAL TRADE
COMMISSION V. A.E. STALEY MFG. CO., POST, P. 746. 

WHEN THE ROBINSON-PATMAN ACT WAS ADOPTED IN 1936, THERE WAS NO
SETTLED CONSTRUCTION OF THE CLAYTON ACT IN THE FEDERAL COURTS CONTRARY
TO THAT NOW URGED BY THE COMMISSION, AS WAS THE CASE WITH THE MEASURES
INVOLVED IN HELVERING V. GRIFFITHS, SUPRA.  NOR WAS THERE ANY SETTLED
ADMINISTRATIVE CONSTRUCTION TO THE CONTRARY.  IN FACT IN 1924 IN THE
ONLY DECISION INVOLVING THE PROBLEM, THE FEDERAL TRADE COMMISSION,
AFTER EXTENSIVE INVESTIGATION AND HEARINGS, ORDERED THE UNITED STATES
STEEL CORPORATION AND ITS SUBSIDIARIES TO CEASE AND DESIST FROM THE
SALES OF THEIR ROLLED STEEL PRODUCTS ON THE "PITTSBURGH-PLUS" PRICE
SYSTEM.  8 F.T.C. 1.  THE COMMISSION HELD THAT THE USE OF A SINGLE
BASING POINT AT PITTSBURGH FOR STEEL PLANTS OVER THE COUNTRY WAS A
VIOLATION OF SEC. 2 OF THE CLAYTON ACT, AS WELL AS SEC. 5 OF THE
FEDERAL TRADE COMMISSION ACT, 15 U.S.C. SEC. 45, AS THEY THEN READ. 
THE RESPONDENTS IN THAT CASE SOUGHT NO REVIEW OF THE COMMISSION'S ORDER
AND FILED WITH THE COMMISSION A FORMAL STATEMENT OF INTENDED COMPLIANCE
WITH IT. 

PETITIONERS ALSO RELY ON THE FAILURE OF THE COMMISSION TO MAKE
FURTHER ORDERS AGAINST BASING POINT SYSTEMS IN THE PERIOD FROM 1924 TO
THE PASSAGE OF THE ROBINSON-PATMAN ACT IN 1936.  THE COMMISSION
UNDERTOOK NO FURTHER PROCEEDINGS BECAUSE OF DIFFICULTIES OF ENFORCEMENT
WHICH IT ATTRIBUTED TO THE EXEMPTION PROVISIONS OF SEC. 2 AND TO
DECISIONS OF THE LOWER FEDERAL COURTS IN CLAYTON ACT CASES.  INSTEAD IT
PRESSED FOR CLARIFYING AMENDMENTS TO THE ACT.  SEE THE COMMISSION'S
FINAL REPORT ON THE CHAIN STORE INVESTIGATION (1936), SEN. DOC. NO. 4,
74TH CONG., 1ST SESS., PP. 89-90, 96-97.  THE ROBINSON-PATMAN ACT WAS
ADOPTED IN RESPONSE TO THE COMMISSION'S RECOMMENDATION THAT DEFECTS IN
SEC. 2 BE REMEDIED AND ITS PROHIBITION OF PRICE DISCRIMINATION
STRENGTHENED. 

FINALLY, PETITIONERS ARGUE THAT CONGRESS, BY THE REJECTION OF A
PROVISION OF THE ROBINSON-PATMAN BILL, WHICH WOULD HAVE IN EFFECT
PROHIBITED ALL BASING POINT SYSTEMS, HAS INDICATED ITS INTENTION TO
SANCTION ALL SUCH SYSTEMS.  THIS PROVISION, AS REPORTED TO THE HOUSE BY
THE COMMITTEE ON THE JUDICIARY, WOULD HAVE DEFINED "PRICE," AS USED IN
SEC. 2 OF THE CLAYTON ACT, AS MEANING "THE AMOUNT RECEIVED BY THE
VENDOR AFTER DEDUCTING ACTUAL FREIGHT OR COST OF OTHER TRANSPORTATION,
IF ANY, ALLOWED OR DEFRAYED BY THE VENDOR." 

THE PRACTICAL EFFECT OF THIS PROVISION WOULD HAVE BEEN TO REQUIRE
THAT THE PRICE OF ALL COMMODITIES SOLD IN INTERSTATE COMMERCE BE
COMPUTED ON AN F.O.B. FACTORY BASIS, IN ORDER TO AVOID THE PROHIBITED
DISCRIMINATIONS IN SELLING PRICE.  IT WOULD HAVE PROHIBITED ANY SYSTEM
OF UNIFORM DELIVERED PRICES, AS WELL AS ANY BASING POINT SYSTEM OF
DELIVERED PRICES.  THESE EFFECTS WERE RECOGNIZED IN THE COMMITTEE'S
REPORT, SEE H. REP. NO. 2287, 74TH CONG., 2D SESS., P. 14, AND IN THE
DEBATES UPON THE ROBINSON-PATMAN BILL.  CF. 80 CONG. REC. 8118, 8223
8224.  INDEED, THE PROVISION WOULD HAVE PROHIBITED SUCH A MULTIPLE
BASING POINT SYSTEM AS THAT IN CEMENT MANUFACTURERS ASSN. V. UNITED
STATES, SUPRA, AS WELL AS THE PRESENT SYSTEM. 

SUCH A DRASTIC CHANGE IN EXISTING PRICING SYSTEMS AS WOULD HAVE BEEN
EFFECTED BY THE PROPOSED AMENDMENT ENGENDERED OPPOSITION, WHICH FINALLY
LED TO THE WITHDRAWAL OF THE PROVISION BY THE HOUSE COMMITTEE ON THE
JUDICIARY.  80 CONG. REC. 8102, 8140, 8224.  WE THINK THIS LEGISLATIVE
HISTORY INDICATES ONLY THAT CONGRESS WAS UNWILLING TO REQUIRE F.O.B.
FACTORY PRICING, AND THUS TO MAKE ALL UNIFORM DELIVERED PRICE SYSTEMS
AND ALL BASING POINT SYSTEMS ILLEGAL PER SE.  ON THE CONTRARY WE THINK
THAT IT LEFT THE LEGALITY OF SUCH SYSTEMS TO BE DETERMINED ACCORDINGLY
AS THEY MIGHT BE WITHIN THE REACH OF SEC. 2(A), AS ENACTED, AND ITS
MORE RESTRICTED PROHIBITIONS OF DISCRIMINATIONS IN DELIVERED PRICES. 

WE CONCLUDE THAT THE DISCRIMINATIONS INVOLVED IN PETITIONERS' PRICING
SYSTEM ARE WITHIN THE PROHIBITION OF THE ACT.  WE PASS TO THE QUESTION
WHETHER THESE DISCRIMINATIONS HAD THE PRESCRIBED EFFECT ON
COMPETITION. 

SECOND.  SECTION 2(A) OF THE CLAYTON ACT, AS AMENDED, PROHIBITS ONLY
DISCRIMINATIONS WHOSE "EFFECT  ...  MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION  ...  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:..."  PETITIONERS INSIST THAT THE COMMISSION'S FINDINGS,
BASED UPON THE FACTS STIPULATED, DO NOT SUPPORT ITS CONCLUSION THAT
PETITIONERS' DISCRIMINATIONS HAVE THE PRESCRIBED EFFECT. 

IT IS TO BE OBSERVED THAT SEC. 2(A) DOES NOT REQUIRE A FINDING THAT
THE DISCRIMINATIONS IN PRICE HAVE IN FACT HAD AN ADVERSE EFFECT ON
COMPETITION.  THE STATUTE IS DESIGNED TO REACH SUCH DISCRIMINATIONS "IN
THEIR INCIPIENCY," BEFORE THE HARM TO COMPETITION IS EFFECTED.  IT IS
ENOUGH THAT THEY "MAY" HAVE THE PRESCRIBED EFFECT.  CF. STANDARD
FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346, 356-357.  BUT AS WAS
HELD IN THE STANDARD FASHION CASE, SUPRA, WITH RESPECT TO THE LIKE
PROVISIONS OF SEC. 3 OF THE CLAYTON ACT, PROHIBITING TYING CLAUSE
AGREEMENTS, THE EFFECT OF WHICH "MAY BE TO SUBSTANTIALLY LESSEN
COMPETITION," THE USE OF THE WORD "MAY" WAS NOT TO PROHIBIT
DISCRIMINATIONS HAVING "THE MERE POSSIBILITY" OF THOSE CONSEQUENCES,
BUT TO REACH THOSE WHICH WOULD PROBABLY HAVE THE DEFINED EFFECT ON
COMPETITION. 

SINCE PETITIONERS' BASING POINT SYSTEM RESULTS IN A CHICAGO DELIVERED
PRICE WHICH IS ALWAYS LOWER THAN ANY OTHER, INCLUDING THAT AT KANSAS
CITY, A NATURAL EFFECT OF THE SYSTEM IS THE CREATION OF A FAVORED PRICE
ZONE FOR THE PURCHASERS OF GLUCOSE IN CHICAGO AND VICINITY, WHICH DOES
NOT EXTEND TO OTHER POINTS OF MANUFACTURE AND SHIPMENT OF GLUCOSE. 
SINCE THE COST OF GLUCOSE, A PRINCIPAL INGREDIENT OF LOW-PRICED CANDY,
IS LESS AT CHICAGO, CANDY MANUFACTURERS THERE ARE IN A BETTER POSITION
TO COMPETE FOR BUSINESS, AND MANUFACTURERS OF CANDY LOCATED NEAR OTHER
FACTORIES PRODUCING GLUCOSE, DISTANT FROM THE BASING POINT, AS KANSAS
CITY, ARE IN A LESS FAVORABLE POSITION.  THE CONSEQUENCE IS, AS FOUND
BY THE COMMISSION, THAT SEVERAL MANUFACTURERS OF CANDY, WHO WERE
FORMERLY LOCATED IN KANSAS CITY OR OTHER CITIES SERVED FROM
PETITIONERS' KANSAS CITY PLANT, HAVE MOVED THEIR FACTORIES TO CHICAGO. 

FURTHER, WE HAVE SEEN THAT PRICES IN CITIES TO WHICH SHIPMENTS ARE
MADE FROM KANSAS CITY, ARE FREQUENTLY DISCRIMINATORY, SINCE THE PRICES
IN SUCH CITIES USUALLY VARY ACCORDING TO FACTORS, PHANTOM FREIGHT OR
FREIGHT ABSORPTION, WHICH ARE UNRELATED TO ANY PROPER ELEMENT OF ACTUAL
COST.  AND THESE SYSTEMATIC DIFFERENTIALS ARE FREQUENTLY APPRECIABLE IN
AMOUNT.  THE COMMISSION'S FINDINGS THAT GLUCOSE IS A PRINCIPAL
INGREDIENT OF LOW PRICED CANDY AND THAT DIFFERENCES OF SMALL FRACTIONS
OF A CENT IN THE SALES PRICE OF SUCH CANDY ARE ENOUGH TO DIVERT
BUSINESS FROM ONE MANUFACTURER TO ANOTHER, READILY ADMIT OF THE
COMMISSION'S INFERENCE THAT THERE IS A REASONABLE PROBABILITY THAT THE
EFFECT OF THE DISCRIMINATIONS MAY BE SUBSTANTIALLY TO LESSEN
COMPETITION. 

THE WEIGHT TO BE ATTRIBUTED TO THE FACTS PROVEN OR STIPULATED, AND
THE INFERENCES TO BE DRAWN FROM THEM, ARE FOR THE COMMISSION TO
DETERMINE, NOT THE COURTS.  SEE FEDERAL TRADE COMMISSION V. PACIFIC
STATES PAPER TRADE ASSN., 273 U.S. 52, 63; FEDERAL TRADE COMMISSION V.
ALGOMA LUMBER CO., 291 U.S. 67, 73; CF. LABOR BOARD V. SOUTHERN BELL
TEL. CO., 319 U.S. 50, 60.  WE CANNOT SAY THAT THE COMMISSION'S
INFERENCE HERE IS NOT SUPPORTED BY THE STIPULATED FACTS, OR THAT IT
DOES NOT SUPPORT THE COMMISSION'S ORDER. 

                       II.  BOOKING PRACTICES. 

ORDINARILY, WHEN PETITIONERS ANNOUNCE AN ADVANCE IN THE PRICE OF
GLUCOSE, THEY ALLOW THEIR CUSTOMERS A PERIOD OF FIVE DAYS TO "BOOK"
ORDERS, THAT IS, SECURE OPTIONS TO PURCHASE, AT THE OLD PRICE, AND A
PERIOD OF THIRTY DAYS IN WHICH TO TAKE DELIVERY UPON THE OPTIONS.  THE
COMMISSION CHARGED THAT PETITIONERS HAVE FURTHER VIOLATED SEC. 2(A) OF
THE CLAYTON ACT, AS AMENDED, BY PERMITTING CERTAIN FAVORED CUSTOMERS TO
SECURE OPTIONS FOR THE PURCHASE OF GLUCOSE, AND TO TAKE DELIVERY AT THE
OLD PRICE, FOR PERIODS LONGER THAN THOSE USUALLY PERMITTED TO OTHER
CUSTOMERS.  THE COMMISSION ALSO CHARGED OTHER VIOLATIONS OF SEC. 2(A)
IN THAT PETITIONERS FAVORED CERTAIN TANK WAGON CUSTOMERS BY PERMITTING
THEM TO BOOK ORDERS AT THE LOWER PRICES CHARGED FOR TANK CAR
DELIVERIES, AND TO TAKE DELIVERIES BY TANK WAGON OVER EXTENDED PERIODS
OF TIME.  THE COMMISSION FOUND, UPON AMPLE EVIDENCE, THAT THESE
DISCRIMINATIONS WERE IN FACT MADE BY PETITIONERS. 

PETITIONERS ASSERT THAT THE PRACTICES PROHIBITED BY SEC. 2(A) ARE
DISCRIMINATIONS IN PRICE, AND NOT IN THE TERMS AND CONDITIONS OF SALE
OTHER THAN PRICE.  THEY RELY ON THE FACT THAT IN THE COURSE OF THE
PROGRESS OF THE ROBINSON-PATMAN BILL THROUGH CONGRESS, THE PHRASE
"TERMS OF SALE," ORIGINALLY INCLUDED IN THE PROHIBITED DISCRIMINATIONS,
WAS STRICKEN FROM THE BILL.  BUT EVEN IF THE CONTENTION BE ACCEPTED, WE
CANNOT IGNORE THE FACT THAT THE PRESENT DISCRIMINATIONS IN THE TERMS OF
SALE OPERATED TO PERMIT THE FAVORED CUSTOMERS TO PURCHASE AT A LOWER
PRICE THAN OTHER CUSTOMERS, SO THAT THEIR ONLY PRACTICAL EFFECT WAS TO
ESTABLISH DISCRIMINATIONS IN PRICE, PRECISELY THE EVIL AT WHICH THE
STATUTE WAS AIMED.  AND THE CONFERENCE COMMITTEE, IN REPORTING ON THIS
ELIMINATION OF THE PHRASE "TERMS OF SALE" FROM THE BILL, MADE IT CLEAR
THAT SEC. 2(A) STILL APPLIED TO INDIRECT AS WELL AS DIRECT
DISCRIMINATIONS IN PRICE.  IT SAID THAT WITH THE ELIMINATION OF THE
PHRASE "TERMS OF SALE," THE ACT IS INAPPLICABLE TO "TERMS OF SALE
EXCEPT AS THEY AMOUNT IN EFFECT TO THE INDIRECT DISCRIMINATIONS IN
PRICE WITHIN THE MEANING OF THE REMAINDER OF SUBSECTION (A)."  H. REP.
NO. 2951, 74TH CONG., 2ND SESS., P. 5. 

PETITIONERS ALSO CONTEND THAT THESE SALES TO FAVORED CUSTOMERS WERE
TO MEET THE COMPETITION OF OTHER SELLERS OF GLUCOSE, AND WERE THEREFORE
EXCEPTED FROM THE PROHIBITION OF SEC. 2(A), BY THE PROVISO OF
SUBSECTION (B) OF SEC. 2 OF THE CLAYTON ACT, AS AMENDED.  SUBSECTION
(B) PROVIDES: 

"UPON PROOF BEING MADE, AT ANY HEARING ON A COMPLAINT UNDER THIS
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  ...
WAS MADE IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR
..." 

THE ONLY EVIDENCE SAID TO REBUT THE PRIMA FACIE CASE MADE BY PROOF OF
THE PRICE DISCRIMINATIONS WAS GIVEN BY WITNESSES WHO HAD NO PERSONAL
KNOWLEDGE OF THE TRANSACTIONS, AND WAS LIMITED TO STATEMENTS OF EACH
WITNESS'S ASSUMPTION OR CONCLUSION THAT THE PRICE DISCRIMINATIONS WERE
JUSTIFIED BY COMPETITION.  EXAMINATION OF THE TESTIMONY SATISFIES US,
AS IT DID THE COURT BELOW, THAT IT WAS INSUFFICIENT TO SUSTAIN A
FINDING THAT THE LOWER PRICES ALLOWED TO FAVORED CUSTOMERS WERE IN FACT
MADE TO MEET COMPETITION.  HENCE PETITIONERS FAILED TO SUSTAIN THE
BURDEN OF SHOWING THAT THE PRICE DISCRIMINATIONS WERE GRANTED FOR THE
PURPOSE OF MEETING COMPETITION.  CF. FEDERAL TRADE COMMISSION V. A.E.
STALEY MFG. CO., POST, P. 746. 

FINALLY IT IS CONTENDED THAT THERE WAS NO EVIDENCE TO SUPPORT THE
COMMISSION'S FINDING, WHICH WAS REFERABLE TO THESE PRACTICES AS WELL AS
PETITIONERS' BASING POINT PRACTICES, THAT THE DISCRIMINATIONS IN PRICE
MAY DIMINISH COMPETITION WITHIN THE MEANING OF SEC. 2(A).  THIS FINDING
AS TO THE EFFECT OF BOTH TYPES OF DISCRIMINATION WAS BASED ON THE SAME
STIPULATION OF FACTS WHICH WE HAVE ALREADY CONSIDERED IN CONNECTION
WITH THE BASING POINT PRACTICES.  SINCE THE CUSTOMERS HERE ARE THE SAME
MANUFACTURERS OF LOW-PRICED CANDIES AS WERE THERE INVOLVED, AND SINCE
THE PRICE DISCRIMINATIONS HERE ARE RELATIVELY SUBSTANTIAL IN A FIELD
WHERE DIFFERENCES OF A FRACTION OF A CENT IN THE PRICE OF CANDY ARE
SUFFICIENT TO DIVERT BUSINESS FROM ONE MANUFACTURER TO ANOTHER, WE
THINK THAT THE STIPULATION, WHICH WE FIND TO BE APPLICABLE TO THESE AS
WELL AS THE BASING POINT PRACTICES, IS SUFFICIENT TO SUPPORT THE
FINDING OF THE PRESCRIBED EFFECT ON COMPETITION. 

   III.  DISCOUNTS TO PURCHASERS OF BY-PRODUCTS. 

STILL OTHER PRICE DISCRIMINATIONS BY PETITIONERS CHARGED AND FOUND BY
THE COMMISSION WERE DISCOUNTS ALLOWED TO CERTAIN FAVORED PURCHASERS OF
GLUTEN FEED AND MEAL, BYPRODUCTS OF PETITIONERS' REFINING OF CORN, AND
OTHER DISCOUNTS ALLOWED TO CERTAIN FAVORED PURCHASERS OF STARCH AND
STARCH PRODUCTS.  IT WAS NOT AND IS NOT CONTENDED THAT THESE ALLOWANCES
WERE DUE TO DIFFERENCES IN THE COST OF MANUFACTURE, SALE OR DELIVERY. 
BUT IT IS ASSERTED THAT THESE DISCRIMINATIONS DID NOT VIOLATE SEC.
2(A), SINCE THERE WAS NOT THE REQUISITE EFFECT ON COMPETITION. 

IT WAS STIPULATED, AND THE COMMISSION FOUND, THAT THE ALLOWANCES IN
QUESTION WERE "SUFFICIENT," IF AND WHEN REFLECTED IN WHOLE OR IN
SUBSTANTIAL PART IN RESALE PRICES, TO ATTRACT BUSINESS TO THE FAVORED
PURCHASERS AWAY FROM THEIR COMPETITORS, "OR TO FORCE (THEIR)
COMPETITORS TO RESELL  ... AT A SUBSTANTIALLY REDUCED PROFIT, OR TO
REFRAIN FROM RESELLING."  BUT IT IS ASSERTED THAT THERE IS NO EVIDENCE
THAT THE ALLOWANCES EVER WERE REFLECTED IN THE PURCHASERS' RESALE
PRICES.  THIS ARGUMENT LOSES SIGHT OF THE STATUTORY COMMAND.  AS WE
HAVE SAID, THE STATUTE DOES NOT REQUIRE THAT THE DISCRIMINATIONS MUST
IN FACT HAVE HARMED COMPETITION, BUT ONLY THAT THERE IS A REASONABLE
POSSIBILITY THAT THEY "MAY" HAVE SUCH AN EFFECT.  WE THINK THAT IT WAS
PERMISSIBLE FOR THE COMMISSION TO INFER THAT THESE DISCRIMINATORY
ALLOWANCES WERE A SUBSTANTIAL THREAT TO COMPETITION. 

                     IV.  ADVERTISING ALLOWANCES. 

THE COMMISSION ALSO CHARGED AND FOUND THAT PETITIONERS VIOLATED SEC.
2(E) OF THE CLAYTON ACT, WHICH PROVIDES:    "(E)  ...  IT SHALL BE
UNLAWFUL FOR ANY PERSON TO DISCRIMINATE IN FAVOR OF ONE PURCHASER
AGAINST ANOTHER PURCHASER OR PURCHASERS OF A COMMODITY BOUGHT FOR
RESALE, WITH OR WITHOUT PROCESSING, BY CONTRACTING TO FURNISH OR
FURNISHING, OR BY CONTRIBUTING TO THE FURNISHING OF, ANY SERVICES OR
FACILITIES CONNECTED WITH THE PROCESSING, HANDLING, SALE, OR OFFERING
FOR SALE OF SUCH COMMODITY SO PURCHASED UPON TERMS NOT ACCORDED TO ALL
PURCHASERS ON PROPORTIONALLY EQUAL TERMS." 

THE ALLEGED VIOLATION CONSISTED OF ADVERTISING EXPENDITURES MADE BY
PETITIONERS FOR THE CURTISS CANDY COMPANY IN ORDER TO PROMOTE THE SALE
OF DEXTROSE OR CORN SUGAR FOR USE IN CANDY MANUFACTURE.  FOR THIS
PURPOSE PETITIONERS ENTERED INTO AN ARRANGEMENT WITH THE CURTISS CANDY
COMPANY, WHEREBY DURING THE YEARS 1936 TO 1939 THEY SPENT OVER $750,000
IN ADVERTISING CURTISS CANDY AS BEING "RICH IN DEXTROSE."  AT THE SAME
TIME, CURTISS ADVERTISED ITS CANDY AS BEING "RICH IN DEXTROSE," AND
MADE THE SAME STATEMENT ON ITS LABELS.  WHILE CURTISS WAS FREE TO
PURCHASE DEXTROSE USED IN THE ADVERTISED CANDIES FROM OTHER
MANUFACTURERS, IT IN FACT MADE ALL SUCH PURCHASES FROM PETITIONERS, IN
ANNUALLY INCREASING QUANTITIES UNTIL IT PURCHASED A TOTAL OF SEVEN
MILLION POUNDS IN 1939.  DURING THE SAME PERIOD IT PURCHASED OF
PETITIONERS LARGE QUANTITIES OF GLUCOSE, THE PURCHASES INCREASING FROM
NOTHING IN 1937 TO ALMOST FIFTEEN MILLION POUNDS IN 1939.  ALTHOUGH
PETITIONERS SOLD DEXTROSE TO OTHERS, IT DID NOT FURNISH PROPORTIONALLY
EQUAL ADVERTISING SERVICES TO THEM. 

PETITIONERS SAY THAT THE ADVERTISING ARRANGEMENT IS NOT FORBIDDEN BY
SEC. 2(E) BECAUSE IT WAS NOT MADE WITH THE CURTISS CANDY COMPANY AS A
"PURCHASER."  BUT DURING THE PERIOD IN QUESTION THE CURTISS COMPANY WAS
IN FACT A PURCHASER OF PETITIONERS' COMMODITY.  THE COMMISSION COULD
PROPERLY INFER THAT THE ADVERTISING FOR WHICH PETITIONERS PAID,
CONTEMPLATED THE SALE OF THAT COMMODITY TO CURTISS, AND THAT THE
ADVERTISING CONTEMPLATED THE OFFERING FOR SALE OF THE CANDY BY
CURTISS.  PETITIONERS THUS FURNISHED A SERVICE CONNECTED WITH THE SALE
OR OFFERING FOR SALE OF A COMMODITY UPON TERMS NOT ACCORDED TO OTHER
PURCHASERS.  THE STATUTE DOES NOT REQUIRE THAT THE DISCRIMINATION IN
FAVOR OF ONE PURCHASER AGAINST ANOTHER SHALL BE PROVIDED FOR IN A
PURCHASE CONTRACT OR BE REQUIRED BY IT.  IT IS ENOUGH IF THE
DISCRIMINATION BE MADE IN FAVOR OF ONE WHO IS A PURCHASER AND DENIED TO
ANOTHER PURCHASER OR OTHER PURCHASERS OF THE COMMODITY. 

IT IS SAID ALSO THAT THE CURTISS COMPANY WAS NOT A PURCHASER OF A
COMMODITY "BOUGHT FOR RESALE, WITH OR WITHOUT PROCESSING" WITHIN THE
MEANING OF SEC. 2(E), SINCE THE CURTISS COMPANY BUYS DEXTROSE FROM
PETITIONERS, BUT USES IT WITH OTHER INGREDIENTS TO PRODUCE CANDY, AN
ENTIRELY NEW COMMODITY, WHICH IT SELLS.  WHILE THE ACT DOES NOT DEFINE
THE TERM "PROCESSING," THE CONVERSION OF DEXTROSE INTO CANDY WOULD SEEM
TO CONFORM TO THE CURRENT UNDERSTANDING THAT PROCESSING IS A MODE OF
TREATMENT OF MATERIALS TO BE TRANSFORMED OR REDUCED TO A DIFFERENT
STATE OR THING.  SEE COCHRANE V. DEENER, 94 U.S. 780, 788.  IN VIEW OF
THE PURPOSE OF THE STATUTE TO PREVENT THE ENUMERATED DISCRIMINATIONS
ATTENDING THE SALE OF A COMMODITY FOR RESALE, THE PRECISE NATURE OR
EXTENT OF THE PROCESSING BEFORE RESALE WOULD SEEM TO BE IMMATERIAL. 
THE STATUTE IS AIMED AT DISCRIMINATION BY SUPPLYING FACILITIES OR
SERVICES TO A PURCHASER NOT ACCORDED TO OTHERS, IN ALL CASES WHERE THE
COMMODITY IS TO BE RESOLD, WHETHER IN ITS ORIGINAL FORM OR IN A
PROCESSED PRODUCT.  THE EVILS OF THE DISCRIMINATION WOULD SEEM TO BE
THE SAME WHETHER THE PROCESSING RESULTS IN LITTLE OR MUCH ALTERATION IN
THE CHARACTER OF THE COMMODITY PURCHASED AND RESOLD. 

AND FINALLY IT IS SAID THAT THE COMMISSION WAS WITHOUT JURISDICTION
BECAUSE THE DEXTROSE SOLD BY PETITIONERS TO CURTISS WAS NOT FOUND TO
HAVE BEEN SOLD IN INTERSTATE COMMERCE; THAT IF THE SECTION IS CONSTRUED
TO APPLY TO SUCH TRANSACTIONS, IT WOULD BE UNCONSTITUTIONAL; AND THAT,
IN ANY CASE, THERE IS NO SHOWING THAT THE TRANSACTIONS COMPLAINED OF,
ALTHOUGH NOT THEMSELVES IN INTERSTATE COMMERCE, HAVE IN ANY WAY
AFFECTED SUCH COMMERCE.  BUT THE EFFECT UPON THE COMMERCE IS AMPLY
SHOWN BY THE INTERSTATE AND NATIONAL CHARACTER OF THE CURTISS COMPANY'S
BUSINESS; BY PETITIONERS' ADVERTISING FOR CURTISS, WHICH WAS ITSELF
FREQUENTLY IN INTERSTATE COMMERCE, AMOUNTING TO $750,000; AND BY
CURTISS'S OWN ADMISSION THAT IT COMPETED IN THE SALE OF ITS CANDY IN
INTERSTATE COMMERCE, WITH ALL MANUFACTURERS OF ONE CENT AND FIVE CENT
BARS OF CANDY.  MOREOVER, SOME OF PETITIONERS' SALES TO OTHER
COMPANIES, TO WHOM THESE ALLOWANCES WERE NOT ACCORDED, WERE MADE IN
INTERSTATE COMMERCE; THUS THERE WAS A DISCRIMINATION AGAINST SALES IN
INTERSTATE COMMERCE, WELL WITHIN THE POWER OF THE COMMISSION TO
REMEDY. 

PETITIONERS MAKE A NUMBER OF OTHER ARGUMENTS OR CONTENTIONS OF LESSER
MOMENT WHICH WE HAVE CONSIDERED BUT FIND IT UNNECESSARY TO DISCUSS.  WE
CONCLUDE THAT THE ADVERTISING FURNISHED BY PETITIONERS WAS A SERVICE OR
FACILITY "CONNECTED WITH THE PROCESSING  ...  SALE, OR OFFERING FOR
SALE" OF THE COMMODITY PURCHASED BY THE CURTISS COMPANY UPON TERMS NOT
ACCORDED TO OTHER PURCHASERS, AND THEREFORE VIOLATED THE STATUTE. 

THE SEVERAL VIOLATIONS OF SECS. 2(A) AND 2(E) OF THE CLAYTON ACT,
FOUND BY THE COMMISSION, SUSTAINED BY THE COURT BELOW, AND BROUGHT HERE
FOR REVIEW, FALL WITHIN THE PROHIBITIONS OF THE ACT.  THE COMMISSION'S
CONCLUSIONS ARE AMPLY SUPPORTED BY ITS FINDINGS AND THE EVIDENCE, AND
THE JUDGMENT IS AFFIRMED. 

FN1  THE ILLUSTRATIVE PRICES FOUND BY THE COMMISSION SHOW THIS
SHARPLY VARYING FACTORY NET AND ALSO THE AMOUNTS OF PHANTOM FREIGHT. 
THE FIGURES GIVEN ARE UPON DELIVERIES FROM KANSAS CITY FOR AUGUST 1,
1939, WHEN THE CHICAGO BASE PRICE WAS $2.09. 

(CHART OMITTED) 

FN2  THE REPORT SAID:  "SECTION 3 AUTHORIZES NOTHING WHICH THAT
AMENDMENT (TO SEC. 2 OF THE CLAYTON ACT) PROHIBITS, AND TAKES NOTHING
FROM IT." 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 
..END :








TRADE COMM'N V. STALEY CO., 324 U.S. 746 


NO. 559.  ARGUED FEBRUARY 28, 1945.  - DECIDED APRIL 23, 1945.  - 144
F.2D 221, REVERSED. 


1.  THE PRICE DISCRIMINATIONS INVOLVED IN RESPONDENTS' BASING-POINT
DELIVERED PRICE SYSTEM AND IN CERTAIN "BOOKING" PRACTICES WERE
PROHIBITED BY SEC. 2(A) OF THE CLAYTON ACT.  CORN PRODUCTS REFINING CO.
V. FEDERAL TRADE COMM'N, ANTE, P. 726.  P. 750. 

2.  THE EVIDENCE IN THIS CASE SUPPORTS THE FINDING OF THE FEDERAL
TRADE COMMISSION THAT RESPONDENTS' PRICE DISCRIMINATIONS WERE NOT MADE
"IN GOOD FAITH" TO MEET EQUALLY LOW PRICES OF COMPETITORS, WITHIN THE
MEANING OF THE PROVISO OF SEC. 2(B) OF THE CLAYTON ACT.  P. 758. 

(A)  THE DETERMINATION FROM THE EVIDENCE WHETHER RESPONDENTS ACTED
"IN GOOD FAITH" TO MEET A COMPETITOR'S EQUALLY LOW PRICES, WITHIN THE
MEANING OF SEC. 2(B) OF THE ACT, IS FOR THE COMMISSION.  P. 758. 

(B)  RESPONDENTS' SHOWING THAT THEY ADOPTED AND FOLLOWED THE BASING
POINT SYSTEM OF THEIR COMPETITORS DID NOT UNDER SEC. 2(B) JUSTIFY THEIR
PRICE DISCRIMINATIONS.  P. 753. 

(C)  THAT RESPONDENTS' PRICES ARE LOWER THAN THOSE THEY MIGHT HAVE
CHARGED, BUT NEVER DID CHARGE, DOES NOT TEND TO SHOW THE ESTABLISHMENT
OF A LOWER PRICE TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR.  P.
755. 

3.  THE COMMISSION'S FINDING THAT RESPONDENTS FAILED TO MEET THE
BURDEN OF REBUTTING THE PRIMA FACIE CASE OF PRICE DISCRIMINATIONS
INVOLVED IN THEIR BOOKING PRACTICES, SINCE THEY HAD FAILED TO SHOW THAT
THEIR LOWER PRICES WERE "MADE IN GOOD FAITH TO MEET AN EQUALLY LOW
PRICE OF A COMPETITOR," IS SUPPORTED BY THE EVIDENCE.  P. 759. 

(A)  THE APPRAISAL OF THE EVIDENCE AND THE INFERENCES TO BE DRAWN
THEREFROM ARE FOR THE COMMISSION, NOT THE COURTS.  P. 760. 

(B)  SECTION 2(B) REQUIRES THAT THE SELLER, WHO HAS KNOWINGLY
DISCRIMINATED IN PRICE, SHOW AT LEAST THE EXISTENCE OF FACTS WHICH
WOULD LEAD A REASONABLE AND PRUDENT PERSON TO BELIEVE THAT THE GRANTING
OF A LOWER PRICE WOULD IN FACT MEET THE EQUALLY LOW PRICE OF A
COMPETITOR.  P. 759. 

FEDERAL TRADE COMMISSION V. A.E. STALEY MANUFACTURING CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 323 U.S. 702, TO REVIEW A JUDGMENT WHICH SET ASIDE AN
ORDER OF THE FEDERAL TRADE COMMISSION IN A PROCEEDING UNDER SEC. 11 OF
THE CLAYTON ACT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, A PARENT COMPANY AND ITS SALES SUBSIDIARY, ARE ENGAGED
IN THE MANUFACTURE AND SALE OF GLUCOSE OR CORN SYRUP IN COMPETITION
WITH OTHERS, INCLUDING THE CORN PRODUCTS REFINING COMPANY, WHOSE
METHODS OF MARKETING AND PRICING ITS PRODUCTS ARE DESCRIBED IN OUR
OPINION IN CORN PRODUCTS REFINING CO. V. FEDERAL TRADE COMMISSION,
ANTE, P. 726.  RESPONDENTS, IN SELLING THEIR GLUCOSE, HAVE ADOPTED A
BASING POINT DELIVERED PRICE SYSTEM COMPARABLE TO THAT OF THE CORN
PRODUCTS REFINING COMPANY.  RESPONDENTS SELL THEIR PRODUCT,
MANUFACTURED AT DECATUR, ILLINOIS, AT DELIVERED PRICES BASED ON
CHICAGO, ILLINOIS, THE PRICE IN EACH CASE BEING THE CHICAGO PRICE PLUS
FREIGHT FROM CHICAGO TO POINT OF DELIVERY. 

IN THIS PROCEEDING, BROUGHT UNDER SEC. 11 OF THE CLAYTON ACT, C. 323,
38 STAT. 730, 15 U.S.C. SEC. 21, THE FEDERAL TRADE COMMISSION CHARGED
THAT RESPONDENTS' PRICING SYSTEM RESULTED IN PRICE DISCRIMINATIONS
BETWEEN DIFFERENT PURCHASERS OF GLUCOSE IN VIOLATION OF SEC. 2(A) OF
THE CLAYTON ACT, AS AMENDED BY THE ROBINSON-PATMAN ACT, C. 592, 49
STAT. 1526, 15 U.S.C. SEC. 13.  THE CASE WAS HEARD BY THE COMMISSION ON
STIPULATIONS OF FACTS AND EXHIBITS, UPON THE BASIS OF WHICH THE
COMMISSION ULTIMATELY MADE ITS FINDINGS.  APPLYING THE SAME PRINCIPLES
AS IN THE CORN PRODUCTS REFINING COMPANY CASE, IT CONCLUDED THAT
RESPONDENTS HAD MADE DISCRIMINATIONS BETWEEN DIFFERENT PURCHASERS IN
THE PRICE OF THEIR PRODUCT; AND THAT RESPONDENTS WERE UNABLE TO JUSTIFY
THE DISCRIMINATIONS, AS PERMITTED BY SEC. 2(B) OF THE CLAYTON ACT, BY
SHOWING THAT THEY WERE MADE "IN GOOD FAITH" TO MEET A COMPETITOR'S
EQUALLY LOW PRICE.  THE COMMISSION ACCORDINGLY MADE ITS ORDER DIRECTING
RESPONDENTS TO CEASE AND DESIST FROM THE PRICE DISCRIMINATIONS. 

ON REVIEW OF THE COMMISSION'S ORDER, THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT SET THE COMMISSION'S ORDER ASIDE, ONE JUDGE
DISSENTING.  144 F.2D 221.  ONE OF THE MAJORITY JUDGES DID NOT CONSIDER
WHETHER THE PRICE DISCRIMINATIONS VIOLATED SEC. 2(A), BUT HELD THAT IN
ANY EVENT THEY WERE MADE IN GOOD FAITH TO MEET THEIR COMPETITORS' PRICE
WITHIN THE MEANING OF SEC. 2(B).  ANOTHER CONCURRED IN THE RESULT ON
THE GROUND THAT THE COMMISSION HAD FAILED TO MAKE OUT A CASE OF
UNLAWFUL PRICE DISCRIMINATION, AND FOR THAT REASON HE FOUND NO OCCASION
TO PASS UPON THE MERITS OF RESPONDENTS' DEFENSE.  THE THIRD JUDGE
DISSENTED ON THE GROUND THAT RESPONDENTS' DISCRIMINATIONS WERE UNLAWFUL
AND NOT JUSTIFIED BY COMPETITION.  WE GRANTED CERTIORARI.  323 U.S.
702. 

THE PRINCIPAL QUESTION FOR DECISION IS WHETHER RESPONDENTS, WHO
ADOPTED THE DISCRIMINATORY PRICE SYSTEM OF THEIR COMPETITORS, INCLUDING
THE CORN PRODUCTS REFINING COMPANY, HAVE SUSTAINED THE BURDEN OF
JUSTIFYING THEIR PRICE SYSTEM UNDER SEC. 2(B) OF THE CLAYTON ACT, AS
AMENDED, BY SHOWING THAT THEIR PRICES WERE MADE "IN GOOD FAITH" TO MEET
THE EQUALLY LOW PRICES OF COMPETITORS.  A FURTHER QUESTION IS WHETHER
THERE WAS EVIDENCE TO SUPPORT THE FEDERAL TRADE COMMISSION'S FINDINGS
THAT RESPONDENTS, IN GRANTING TO CERTAIN FAVORED BUYERS DISCRIMINATORY
PRICES FOR THEIR PRODUCT, DID NOT ACT "IN GOOD FAITH" TO MEET A
COMPETITOR'S EQUALLY LOW PRICE WITHIN THE MEANING OF SEC. 2(B) OF THE
CLAYTON ACT. 

THE COMMISSION FOUND THAT AT ALL RELEVANT TIMES RESPONDENTS HAVE SOLD
GLUCOSE, SHIPPED TO PURCHASERS FROM THEIR PLANT AT DECATUR, ILLINOIS,
ON A DELIVERED PRICE BASIS, THE LOWEST PRICE QUOTED BEING FOR DELIVERY
TO CHICAGO PURCHASERS.  RESPONDENTS' CHICAGO PRICE IS NOT ONLY A
DELIVERED PRICE AT THAT PLACE.  IT IS ALSO A BASING POINT PRICE UPON
WHICH ALL OTHER DELIVERED PRICES, INCLUDING THE PRICE AT DECATUR, ARE
COMPUTED BY ADDING TO THE BASE PRICE, FREIGHT FROM CHICAGO TO THE POINT
OF DELIVERY.  THE DECATUR PRICE, AS WELL AS THE DELIVERED PRICE AT ALL
POINTS AT WHICH THE FREIGHT FROM DECATUR IS LESS THAN THE FREIGHT FROM
CHICAGO, INCLUDES AN ITEM OF UNEARNED OR "PHANTOM" FREIGHT, RANGING IN
AMOUNT, IN INSTANCES MENTIONED BY THE COMMISSION, FROM 1 CENT PER
HUNDRED POUNDS AT ST. JOSEPH, MISSOURI, TO 18 CENTS AT DECATUR.  THE
CHICAGO PRICE, AS WELL AS THAT AT POINTS AT WHICH THE FREIGHT FROM
DECATUR EXCEEDS FREIGHT FROM CHICAGO, REQUIRED RESPONDENTS TO "ABSORB"
FREIGHT, VARYING IN INSTANCES CITED BY THE COMMISSION FROM 4 CENTS PER
ONE HUNDRED POUNDS AT ST. LOUIS, MISSOURI, TO 15 1/2 CENTS PER HUNDRED
POUNDS AT CHICAGO. 

THE COMMISSION FOUND THAT THIS INCLUSION OF UNEARNED FREIGHT OR
ABSORPTION OF FREIGHT IN CALCULATING THE DELIVERED PRICES OPERATED TO
DISCRIMINATE AGAINST PURCHASERS AT ALL POINTS WHERE THE FREIGHT RATE
FROM DECATUR WAS LESS THAN THAT FROM CHICAGO AND IN FAVOR OF PURCHASERS
AT POINTS WHERE THE FREIGHT RATE FROM DECATUR WAS GREATER THAN THAT
FROM CHICAGO.  IT ALSO MADE FINDINGS COMPARABLE TO THOSE MADE IN THE
CORN PRODUCTS REFINING COMPANY CASE THAT THE EFFECT OF THESE
DISCRIMINATIONS BETWEEN PURCHASERS, WHO ARE CANDY AND SYRUP
MANUFACTURERS COMPETING WITH EACH OTHER, WAS TO DIMINISH COMPETITION
BETWEEN THEM. 

THE COMMISSION ALSO FOUND THAT RESPONDENTS, DURING A PERIOD OF FROM
FIVE TO TEN DAYS AFTER THEY ADVANCE THE PRICES OF THEIR PRODUCT,
CUSTOMARILY PERMIT PURCHASERS GENERALLY TO "BOOK" ORDERS OR SECURE
OPTIONS TO PURCHASE GLUCOSE AT THE OLD PRICE, FOR DELIVERY WITHIN
THIRTY DAYS, BUT THAT THEY ALSO HAVE PERMITTED CERTAIN FAVORED
PURCHASERS TO SECURE ADDITIONAL EXTENSIONS OF TIME FOR DELIVERY UPON
SUCH OPTIONS.  IN CONSEQUENCE OF THESE TIME EXTENSIONS, THE FAVORED
BUYERS WERE ENABLED TO SECURE GLUCOSE AT A LOWER PRICE THAN THAT
CONCURRENTLY BEING CHARGED TO OTHER BUYERS.  IN SOME INSTANCES, AFTER A
PRICE ADVANCE, RESPONDENTS ALSO MADE FICTITIOUS BOOKINGS ON WHICH
DELIVERIES WERE LATER MADE, AT THE OPTION OF THE FAVORED BUYERS; AND IN
STILL OTHER CASES SALES WERE MADE TO FAVORED PURCHASERS LONG AFTER THE
EXPIRATION OF THE BOOKING PERIOD.  RESPONDENTS ALSO BOOK GLUCOSE IN
TANK CAR LOTS TO CERTAIN PURCHASERS WHO LACK STORAGE FACILITIES FOR
SUCH QUANTITIES; RESPONDENTS THEN ACTUALLY MAKE DELIVERIES IN TANK
WAGON LOTS OVER A PERIOD OF MANY MONTHS, DURING WHICH THEY ARE SELLING
TO OTHERS UPON LIKE DELIVERIES AT HIGHER PRICES. 

THESE FINDINGS, AND THE CONCLUSION OF THE COMMISSION THAT THE PRICE
DISCRIMINATIONS INVOLVED ARE PROHIBITED BY SEC. 2(A), ARE CHALLENGED
HERE.  BUT, FOR THE REASONS WE HAVE GIVEN IN OUR OPINION IN THE CORN
PRODUCTS REFINING COMPANY CASE, THE CHALLENGE MUST FAIL.  THE SOLE
QUESTION WE FIND IT NECESSARY TO DISCUSS HERE IS WHETHER RESPONDENTS
HAVE SUCCEEDED IN JUSTIFYING THE DISCRIMINATIONS BY AN ADEQUATE SHOWING
THAT THE DISCRIMINATIONS WERE MADE "IN GOOD FAITH" TO MEET EQUALLY LOW
PRICES OF COMPETITORS. 

                          I 

WE CONSIDER FIRST, RESPONDENTS' ASSERTED JUSTIFICATION OF THE
DISCRIMINATIONS INVOLVED IN ITS BASING POINT PRICING SYSTEM.  AS WE
HOLD IN THE CORN PRODUCTS REFINING COMPANY CASE WITH RESPECT TO A LIKE
SYSTEM, PRICE DISCRIMINATIONS ARE NECESSARILY INVOLVED WHERE THE PRICE
BASING POINT IS DISTANT FROM THE POINT OF PRODUCTION.  THIS IS BECAUSE,
AS IN RESPONDENTS' CASE, THE DELIVERED PRICES UPON SHIPMENTS FROM
DECATUR USUALLY INCLUDE AN ITEM OF UNEARNED OR PHANTOM FREIGHT OR
REQUIRE THE ABSORPTION OF FREIGHT WITH THE CONSEQUENT VARIATIONS IN THE
SELLER'S NET FACTORY PRICES.  SINCE SUCH FREIGHT DIFFERENTIALS BEAR NO
RELATION TO THE ACTUAL COST OF DELIVERY, THEY ARE SYSTEMATIC
DISCRIMINATIONS PROHIBITED BY SEC. 2(A), WHENEVER THEY HAVE THE DEFINED
EFFECT UPON COMPETITION. 

RESPONDENTS SOUGHT TO JUSTIFY THESE DISCRIMINATIONS BEFORE THE
COMMISSION, BY A STIPULATION DETAILING THE HISTORY AND USE OF THEIR
PRESENT PRICING SYSTEM.  FROM THIS IT APPEARS THAT IN 1920, WHEN
RESPONDENTS BEGAN THE MANUFACTURE OF GLUCOSE OR CORN SYRUP, THEY FOUND
THAT SYRUP MANUFACTURED BY THEIR COMPETITORS "WAS BEING SOLD AT
DELIVERED PRICES IN THE VARIOUS MARKETS OF THE UNITED STATES"; THAT IN
CHICAGO TWO LARGE FACTORIES WERE MANUFACTURING SYRUP AND DELIVERING IT
IN CHICAGO AT PRICES LOWER THAN PRICES THEN PREVAILING IN ANY OTHER
MARKET; AND THAT THE DELIVERED PRICE IN SUCH OTHER MARKETS WAS
GENERALLY EQUAL TO THE CHICAGO PRICE PLUS THE PUBLISHED FREIGHT RATE
FROM CHICAGO TO THE POINT OF DELIVERY.  RESPONDENTS THUS FOUND IN
OPERATION A PRICING SYSTEM WHICH, IF FOLLOWED, WOULD PRODUCE EXACT
IDENTITY IN PRICES OF GLUCOSE OF THE SEVERAL PRODUCERS WHEN SOLD IN ANY
CITY OF THE UNITED STATES.  RESPONDENTS, TO GAIN ACCESS TO THE MARKETS
THUS ESTABLISHED, MADE THEIR SALES "BY FIRST QUOTING THE SAME PRICES AS
WERE QUOTED BY COMPETITORS AND THEN MAKING WHATEVER REDUCTION IN PRICE
...  WAS NECESSARY TO OBTAIN BUSINESS."  WHEN RESPONDENTS SOON FOUND
THAT THEIR PRODUCT WOULD COMMAND THE SAME MARKET PRICE AS THAT OF THEIR
COMPETITORS, THEY "ADOPTED THE PRACTICE OF SELLING AT THE SAME
DELIVERED PRICES AS (THEIR) COMPETITORS, WHATEVER THEY MIGHT BE." 
RESPONDENTS HAVE FOLLOWED THE SAME PRACTICE SINCE JUNE 19, 1936, THE
DATE OF ENACTMENT OF THE ROBINSON-PATMAN ACT. 

ANY HEARING ON A COMPLAINT UNDER THIS SECTION, THAT THERE HAS BEEN
DISCRIMINATION IN 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, 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  ...  WAS MADE IN GOOD FAITH
TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR  ..." 

IT WILL BE NOTED THAT THE DEFENSE THAT THE PRICE DISCRIMINATIONS WERE
MADE IN ORDER TO MEET COMPETITION, IS UNDER THE STATUTE A MATTER OF
"REBUTTING" THE COMMISSION'S "PRIMA-FACIE CASE."  PRIOR TO THE ROBINSON
PATMAN AMENDMENTS, SEC. 2 OF THE CLAYTON ACT PROVIDED THAT NOTHING
CONTAINED IN IT "SHALL PREVENT" DISCRIMINATIONS IN PRICE "MADE IN GOOD
FAITH TO MEET COMPETITION."  THE CHANGE IN LANGUAGE OF THIS EXCEPTION
FN1  WAS FOR THE PURPOSE OF MAKING THE DEFENSE A MATTER OF EVIDENCE IN
EACH CASE, RAISING A QUESTION OF FACT AS TO WHETHER THE COMPETITION
JUSTIFIED THE DISCRIMINATION.  SEE THE CONFERENCE REPORT, H. REP. NO.
2951, 74TH CONG., 2D SESS., PP. 6-7; SEE ALSO THE STATEMENT OF
REPRESENTATIVE UTTERBACH, THE CHAIRMAN OF THE HOUSE CONFERENCE
COMMITTEE, 80 CONG. REC. 9418. 

BUT RESPONDENTS ARGUE THAT THEY HAVE SUSTAINED THEIR BURDEN OF PROOF,
AS PRESCRIBED BY SEC. 2(B), BY SHOWING THAT THEY HAVE ADOPTED AND
FOLLOWED THE BASING POINT SYSTEM OF THEIR COMPETITORS.  IN THE CORN
PRODUCTS REFINING COMPANY CASE WE HOLD THAT THIS PRICE SYSTEM OF
RESPONDENTS' COMPETITOR IN PART INVOLVES UNLAWFUL PRICE
DISCRIMINATIONS, TO THE EXTENT THAT FREIGHT DIFFERENTIALS ENTER INTO
THE COMPUTATION OF PRICE, AS A RESULT OF THE SELECTION AS A BASING
POINT OF A PLACE DISTANT FROM THE POINT OF PRODUCTION AND SHIPMENT. 
THUS IT IS THE CONTENTION THAT A SELLER MAY JUSTIFY A BASING POINT
DELIVERED PRICE SYSTEM, WHICH IS OTHERWISE OUTLAWED BY SEC. 2, BECAUSE
OTHER COMPETITORS ARE IN PART VIOLATING THE LAW BY MAINTAINING A LIKE
SYSTEM.  IF RESPONDENTS' ARGUMENT IS SOUND, IT WOULD SEEM TO FOLLOW
THAT EVEN IF THE COMPETITOR'S PRICING SYSTEM WERE WHOLLY IN VIOLATION
OF SEC. 2 OF THE CLAYTON ACT, RESPONDENTS COULD ADOPT AND FOLLOW IT
WITH IMPUNITY. 

THIS STARTLING CONCLUSION IS ADMISSIBLE ONLY UPON THE ASSUMPTION THAT
THE STATUTE PERMITS A SELLER TO MAINTAIN AN OTHERWISE UNLAWFUL SYSTEM
OF DISCRIMINATORY PRICES, MERELY BECAUSE HE HAD ADOPTED IT IN ITS
ENTIRETY, AS A MEANS OF SECURING THE BENEFITS OF A LIKE UNLAWFUL SYSTEM
MAINTAINED BY HIS COMPETITORS.  BUT SEC. 2(B) DOES NOT CONCERN ITSELF
WITH PRICING SYSTEMS OR EVEN WITH ALL THE SELLER'S DISCRIMINATORY
PRICES TO BUYERS.  IT SPEAKS ONLY OF THE SELLER'S "LOWER" PRICE AND OF
THAT ONLY TO THE EXTENT THAT IT IS MADE "IN GOOD FAITH TO MEET AN
EQUALLY LOW PRICE OF A COMPETITOR."  THE ACT THUS PLACES EMPHASIS ON
INDIVIDUAL COMPETITIVE SITUATIONS, RATHER THAN UPON A GENERAL SYSTEM OF
COMPETITION.  RESPONDENTS ARE HERE SEEKING TO JUSTIFY DELIVERED PRICES
WHICH DISCRIMINATE IN FAVOR OF BUYERS IN CHICAGO AND AT POINTS NEARER,
FREIGHTWISE, TO CHICAGO THAN TO DECATUR, BY A PRICING SYSTEM INVOLVING
PHANTOM FREIGHT AND FREIGHT ABSORPTION.  WE THINK THE CONCLUSION IS
INADMISSIBLE, IN VIEW OF THE CLEAR CONGRESSIONAL PURPOSE NOT TO
SANCTION BY SEC. 2(B) THE EXCUSE THAT THE PERSON CHARGED WITH A
VIOLATION OF THE LAW WAS MERELY ADOPTING A SIMILARLY UNLAWFUL PRACTICE
OF ANOTHER.  FN2 

THE STATUTORY TEST IS WHETHER RESPONDENTS, BY THEIR BASING POINT
SYSTEM, ADOPTED A "LOWER PRICE ...  IN GOOD FAITH TO MEET AN EQUALLY
LOW PRICE OF A COMPETITOR."  THIS TEST PRESUPPOSES THAT THE PERSON
CHARGED WITH VIOLATING THE ACT WOULD, BY HIS NORMAL, NON-DISCRIMINATORY
PRICING METHODS, HAVE REACHED A PRICE SO HIGH THAT HE COULD REDUCE IT
IN ORDER TO MEET THE COMPETITOR'S EQUALLY LOW PRICE.  ON THE CONTRARY,
RESPONDENTS HAVE USED THEIR PRICING SYSTEM TO ADOPT THE DELIVERY PRICES
OF THEIR CHICAGO COMPETITORS, BY CHARGING THEIR OWN CUSTOMERS UPON
SHIPMENTS FROM DECATUR THE CHICAGO BASE PRICE PLUS THEIR COMPETITORS'
COSTS OF DELIVERY FROM CHICAGO.  EVEN THOUGH RESPONDENTS, AT MANY
DELIVERY POINTS, ENJOYED FREIGHT ADVANTAGES OVER THEIR COMPETITORS,
THEY DID NOT AVAIL OF THE OPPORTUNITY TO CHARGE LOWER DELIVERED
PRICES.  INSTEAD THEY MAINTAINED THEIR OWN PRICES AT THE LEVEL OF THEIR
COMPETITORS' HIGH PRICES, BASED UPON THE COMPETITORS' HIGHER COSTS OF
DELIVERY, BY INCLUDING PHANTOM FREIGHT IN THEIR OWN DELIVERED PRICES. 

RESPONDENTS HAVE NEVER ATTEMPTED TO ESTABLISH THEIR OWN NON
DISCRIMINATORY PRICE SYSTEM, AND THEN REDUCED THEIR PRICE WHEN
NECESSARY TO MEET COMPETITION.  INSTEAD THEY HAVE SLAVISHLY FOLLOWED IN
THE FIRST INSTANCE A PRICING POLICY WHICH, IN THEIR CASE, RESULTED IN
SYSTEMATIC DISCRIMINATIONS, BY CHARGING THEIR CUSTOMERS UPON SHIPMENTS
FROM DECATUR, THE CHICAGO BASE PRICE PLUS THEIR COMPETITORS' ACTUAL
COSTS OF DELIVERY FROM CHICAGO.  MOREOVER, THERE IS NO SHOWING THAT IF
RESPONDENTS HAD CHARGED NON-DISCRIMINATORY PRICES, THEY WOULD BE HIGHER
IN ALL CASES THAN THOSE NOW PREVAILING UNDER THEIR BASING POINT
SYSTEM.  HENCE IT CANNOT BE SAID THAT RESPONDENTS' PRICE
DISCRIMINATIONS HAVE RESULTED IN "LOWER" PRICES TO MEET EQUALLY LOW
PRICES OF A COMPETITOR. 

RESPONDENTS MAKE AN INGENIOUS ARGUMENT THAT THEY COULD HAVE USED THEIR
PRESENT PRICE FOR DELIVERIES AT DECATUR (WHICH IS THE CHICAGO BASE
PRICE PLUS FREIGHT FROM CHICAGO TO DECATUR) AS THEIR BASE PRICE; AND
THAT WITH THE ADDITION OF FREIGHT FROM DECATUR TO THE POINTS OF
DELIVERY, THE DELIVERED PRICES WOULD IN ALL CASES THEN BE HIGHER THAN
THE PRESENT PRICES, SO THAT REDUCTION TO MEET THE LOWER PRICES OF THEIR
COMPETITORS WOULD BE PERMISSIBLE UNDER SEC. 2(B).  BUT THIS IS NO
ANSWER TO THE RULING OF THE COMMISSION THAT THE COMPETITIVE SITUATION
DID NOT JUSTIFY RESPONDENTS' PRICING SYSTEM, SINCE RESPONDENTS'
ARGUMENT IS BASED UPON A HYPOTHESIS, WHICH NEVER IN FACT EXISTED.  THE
FACT THAT RESPONDENTS' PRICES ARE LOWER THAN THOSE THEY MIGHT HAVE
CHARGED, BUT NEVER DID CHARGE, DOES NOT TEND TO SHOW THE ESTABLISHMENT
OF A LOWER PRICE TO MEET AN EQUALLY LOW PRICE OF A COMPETITOR. 

FURTHER, WE CANNOT SAY THAT RESPONDENTS' DISCRIMINATIONS IN PRICE
WERE SHOWN TO HAVE BEEN MADE IN A "GOOD FAITH" EFFORT TO MEET
COMPETITION, AS SEC. 2(B) REQUIRES.  AS WE HAVE POINTED OUT HERE AND IN
OUR OPINION IN THE COMPANION CASE, CORN PRODUCTS REFINING CO. V.
FEDERAL TRADE COMMISSION, SUPRA, THE BASING POINT SYSTEM USED BY
RESPONDENTS DISCRIMINATES SYSTEMATICALLY IN FAVOR OF BUYERS IN CHICAGO
AND AT POINTS NEARER, FREIGHTWISE, TO CHICAGO THAN TO DECATUR, AND
AGAINST PURCHASERS AT DECATUR AND POINTS NEARER TO IT, BY REASON OF
RESPONDENTS' ABSORPTION OF FREIGHT AND COLLECTION OF PHANTOM FREIGHT. 

THIS IS ILLUSTRATED MOST GRAPHICALLY BY RESPONDENTS' DELIVERED PRICES
AT DECATUR AND CHICAGO.  ON AUGUST 1, 1939, THESE WERE $2.09 AT
CHICAGO, AND $2.27 AT DECATUR.  SINCE RESPONDENTS INCURRED 18 CENTS
FREIGHT IN SHIPPING TO CHICAGO, THEIR NET PRICE AT THE DECATUR FACTORY
ON SHIPMENTS TO CHICAGO WAS $1.91.  THE DISCRIMINATION IN FAVOR OF
CHICAGO AND AGAINST DECATUR WAS THUS 36 CENTS, OR 17 PER CENT OF THE
CHICAGO PRICE, IN A FIELD WHERE A DIFFERENCE OF A FRACTION OF A CENT IN
THE SALES PRICE OF THE CANDY PROCESSED FROM THE GLUCOSE COULD DIVERT
BUYERS FROM ONE CANDY MANUFACTURER TO ANOTHER.  ONLY TO A LESSER DEGREE
ARE THERE LIKE DISCRIMINATIONS WHEN OTHER POINTS OF DELIVERY ARE
COMPARED. 

THE COMMISSION'S CONCLUSION SEEMS INESCAPABLE THAT RESPONDENTS'
DISCRIMINATIONS, SUCH AS THOSE BETWEEN PURCHASERS IN CHICAGO AND
DECATUR, WERE ESTABLISHED NOT TO MEET EQUALLY LOW CHICAGO PRICES OF
COMPETITORS THERE, BUT IN ORDER TO ESTABLISH ELSEWHERE THE ARTIFICIALLY
HIGH PRICES WHOSE DISCRIMINATORY EFFECT PERMEATES RESPONDENTS' ENTIRE
PRICING SYSTEM.  THE SYSTEMATIC ADOPTION OF A COMPETITOR'S PRICES BY
INCLUDING UNEARNED FREIGHT IN RESPONDENTS' DELIVERY PRICE OR, WHAT
AMOUNTS TO THE SAME THING, THE MAINTENANCE OF A DISCRIMINATORY AND
ARTIFICIALLY HIGH F.O.B. FACTORY PRICE IN ORDER TO TAKE ADVANTAGE OF
THE CORRESPONDINGLY HIGH PRICES OF A COMPETITOR, BASED ON ITS HIGHER
COSTS OF DELIVERY, IS NOT SUFFICIENT TO JUSTIFY THE DISCRIMINATION, FOR
RESPONDENT FAILS TO SHOW, AS THE STATUTE REQUIRES, THE ESTABLISHMENT OF
A "LOWER PRICE" MADE IN GOOD FAITH TO MEET THE EQUALLY LOW PRICE OF A
COMPETITOR.  BY ADOPTING THE PRICE SYSTEM OF THEIR COMPETITORS,
RESPONDENTS HAVE SUCCEEDED IN MANY INSTANCES IN ESTABLISHING AN
ARTIFICIALLY HIGH PRICE AND HAVE THUS SECURED THE BENEFIT OF THE HIGH
PRICE LEVELS OF A COMPETITOR WHOSE COSTS OF DELIVERY ARE GREATER. 

A PRICE DISCRIMINATION IS MEASURED BY THE DIFFERENCE BETWEEN THE HIGH
PRICE TO ONE PURCHASER AND THE LOWER PRICE TO ANOTHER.  RESPONDENTS'
PRICE DISCRIMINATIONS WERE NOT DICTATED BY THE LOWER DELIVERY COSTS OR
LOWER DELIVERY PRICES OF THEIR COMPETITORS.  IN NONE OF THE MARKETS IN
WHICH RESPONDENTS HAD A FREIGHT ADVANTAGE OVER THEIR CHICAGO
COMPETITORS DID RESPONDENTS REDUCE THEIR PRICES BELOW THOSE OF THEIR
COMPETITORS.  INSTEAD THEY MET AND FOLLOWED THEIR COMPETITORS' PRICES
BY PRICES RENDERED ARTIFICIALLY HIGH, BY THE INCLUSION OF UNEARNED
FREIGHT PROPORTIONED TO THE AMOUNT BY WHICH THEIR COMPETITORS'
DELIVERED COSTS EXCEEDED THEIR OWN. 

WE CANNOT SAY THAT A SELLER ACTS IN GOOD FAITH WHEN IT CHOOSES TO
ADOPT SUCH A CLEARLY DISCRIMINATORY PRICING SYSTEM, AT LEAST WHERE IT
HAS NEVER ATTEMPTED TO SET UP A NON-DISCRIMINATORY SYSTEM, GIVING TO
PURCHASERS, WHO HAVE THE NATURAL ADVANTAGE OF PROXIMITY TO ITS PLANT,
THE PRICE ADVANTAGES WHICH THEY ARE ENTITLED TO EXPECT OVER PURCHASERS
AT A DISTANCE.  AND FOR LIKE REASONS, WE MUST REJECT RESPONDENTS'
ARGUMENT THAT THE COMMISSION'S ORDER COULD BE RENDERED NUGATORY, BY
RESPONDENTS' ESTABLISHING SUCH A HIGH FACTORY PRICE AS ALWAYS TO ADMIT
OF REDUCTIONS IN ORDER TO MEET THE PRICES OF COMPETITORS WHO ARE USING
A CHICAGO BASING POINT SYSTEM.  FOR WE THINK IT COULD NOT BE SAID THAT
THIS PRACTICAL CONTINUATION OF THE PRESENT DISCRIMINATORY BASING POINT
SYSTEM WOULD BE IN GOOD FAITH.  BUT IT DOES NOT FOLLOW THAT RESPONDENTS
MAY NEVER ABSORB FREIGHT WHEN THEIR FACTORY PRICE PLUS ACTUAL FREIGHT
IS HIGHER THAN THEIR COMPETITORS' PRICE, OR THAT SELLERS, BY SO DOING,
MAY NOT MAINTAIN A UNIFORM DELIVERED PRICE AT ALL POINTS OF DELIVERY,
FOR IN THAT EVENT THERE IS NO DISCRIMINATION IN PRICE. 

CONGRESS HAS LEFT TO THE COMMISSION THE DETERMINATION OF FACT IN EACH
CASE WHETHER THE PERSON, CHARGED WITH MAKING DISCRIMINATORY PRICES,
ACTED IN GOOD FAITH TO MEET A COMPETITOR'S EQUALLY LOW PRICES.  THE
DETERMINATION OF THIS FACT FROM THE EVIDENCE IS FOR THE COMMISSION. 
SEE FEDERAL TRADE COMMISSION V. PACIFIC STATES PAPER TRADE ASSN., 273
U.S. 52, 63; FEDERAL TRADE COMMISSION V. ALGOMA LUMBER CO., 291 U.S.
67, 73.  IN THE PRESENT CASE, THE COMMISSION'S FINDING THAT
RESPONDENTS' PRICE DISCRIMINATIONS WERE NOT MADE TO MEET A "LOWER"
PRICE AND CONSEQUENTLY WERE NOT IN GOOD FAITH, IS AMPLY SUPPORTED BY
THE RECORD, AND WE THINK THE COURT OF APPEALS ERRED IN SETTING ASIDE
THIS PORTION OF THE COMMISSION'S ORDER TO CEASE AND DESIST. 

                                  II 

THE COMMISSION FOUND THAT RESPONDENTS HAD NOT SUSTAINED THE BURDEN OF
REBUTTING THE PRIMA FACIE CASE OF PRICE DISCRIMINATIONS INVOLVED IN
THEIR BOOKING PRACTICES, SINCE THEY HAD FAILED TO SHOW THAT THEIR LOWER
PRICES WERE "MADE IN GOOD FAITH TO MEET AN EQUALLY LOW PRICE OF A
COMPETITOR."  THE FACTS AS STIPULATED WERE ONLY THAT THE
DISCRIMINATIONS WERE MADE IN RESPONSE TO VERBAL INFORMATION RECEIVED
FROM SALESMEN, BROKERS OR INTENDING PURCHASERS, WITHOUT SUPPORTING
EVIDENCE, TO THE EFFECT THAT IN EACH CASE ONE OR MORE COMPETITORS HAD
GRANTED OR OFFERED TO GRANT LIKE DISCRIMINATIONS.  IT IS STIPULATED
THAT RESPONDENTS, "BELIEVING SUCH REPORT TO BE TRUE, HAS THEN GRANTED
SIMILAR" PRICE DISCRIMINATIONS.  THE RECORD CONTAINS NO STATEMENTS BY
THE PERSONS MAKING THESE REPORTS AND DISCLOSES NO EFFORTS BY
RESPONDENTS TO INVESTIGATE OR VERIFY THEM, AND NO EVIDENCE OF
RESPONDENTS' KNOWLEDGE OF THEIR INFORMANTS' CHARACTER AND RELIABILITY. 
IT IS ADMITTED THAT IN SOME INSTANCES RESPONDENTS MADE SALES UPON
BOOKINGS WHICH THEY SUSPECTED HAD BEEN MADE WITHOUT KNOWLEDGE OF THE
BUYERS. 

IN APPRAISING THE EVIDENCE, THE COMMISSION RECOGNIZED THAT THE
STATUTE DOES NOT PLACE AN IMPOSSIBLE BURDEN UPON SELLERS, BUT IT
EMPHASIZED THE GOOD FAITH REQUIREMENT OF THE STATUTE, WHICH PLACES THE
BURDEN OF PROVING GOOD FAITH ON THE SELLER, WHO HAS MADE THE
DISCRIMINATORY PRICES.  THE COMMISSION COMMENTED ON THE TENDENCY OF
BUYERS TO SEEK TO SECURE THE MOST ADVANTAGEOUS TERMS OF SALES POSSIBLE,
AND UPON THE ENTIRE LACK OF A SHOWING OF DILIGENCE ON THE PART OF
RESPONDENTS TO VERIFY THE REPORTS WHICH THEY RECEIVED, OR TO LEARN OF
THE EXISTENCE OF FACTS WHICH WOULD LEAD A REASONABLE AND PRUDENT PERSON
TO BELIEVE THAT THE GRANTING OF A LOWER PRICE WOULD IN FACT BE MEETING
THE EQUALLY LOW PRICE OF A COMPETITOR.  THE COMMISSION THOUGHT THAT
RESPONDENTS' ALLOWANCE OF DISCRETIONARY PRICES, IN CIRCUMSTANCES WHICH
STRONGLY SUGGESTED THAT THE BUYERS' CLAIMS WERE WITHOUT MERIT, AS WELL
AS RESPONDENTS' READINESS TO GRANT DISCRIMINATORY PRICES WITHOUT TAKING
ANY STEPS TO VERIFY THE EXISTENCE OF A LOWER PRICE OF COMPETITORS, AND
THE ENTIRE ABSENCE OF ANY SHOWING THAT RESPONDENTS HAD TAKEN ANY
PRECAUTION TO CONDUCT THEIR BUSINESS IN SUCH MANNER AS TO PREVENT
UNWARRANTED DISCRIMINATIONS IN PRICE, ALL TAKEN TOGETHER, REQUIRED THE
CONCLUSION THAT RESPONDENTS HAD NOT SUSTAINED THE BURDEN OF SHOWING
THAT THEIR PRICE DISCRIMINATIONS WERE MADE IN GOOD FAITH TO MEET THE
LOWER PRICES OF COMPETITORS. 

DISCRIMINATIONS BY SHOWING THAT IN FACT THEY MET A COMPETITIVE PRICE. 
BUT IT DOES PLACE ON THE SELLER THE BURDEN OF SHOWING THAT THE PRICE
WAS MADE IN GOOD FAITH TO MEET A COMPETITOR'S.  THE GOOD FAITH OF THE
DISCRIMINATION MUST BE SHOWN IN THE FACE OF THE FACT THAT THE SELLER IS
AWARE THAT HIS DISCRIMINATION IS UNLAWFUL, UNLESS GOOD FAITH IS SHOWN,
AND IN CIRCUMSTANCES WHICH ARE PECULIARLY FAVORABLE TO PRICE
DISCRIMINATION ABUSES.  WE AGREE WITH THE COMMISSION THAT THE STATUTE
AT LEAST REQUIRES THE SELLER, WHO HAS KNOWINGLY DISCRIMINATED IN PRICE,
TO SHOW THE EXISTENCE OF FACTS WHICH WOULD LEAD A REASONABLE AND
PRUDENT PERSON TO BELIEVE THAT THE GRANTING OF A LOWER PRICE WOULD IN
FACT MEET THE EQUALLY LOW PRICE OF A COMPETITOR.  NOR WAS THE
COMMISSION WRONG IN HOLDING THAT RESPONDENTS FAILED TO MEET THIS
BURDEN. 

THE APPRAISAL OF THE EVIDENCE AND THE INFERENCES TO BE DRAWN FROM IT
ARE FOR THE COMMISSION, NOT THE COURTS.  SEE FEDERAL TRADE COMMISSION
V. PACIFIC STATES PAPER TRADE ASSN., SUPRA, 63; FEDERAL TRADE
COMMISSION V. ALGOMA LUMBER CO., SUPRA, 73.  WE CANNOT SAY THAT THE
COMMISSION'S INFERENCE IS NOT SUPPORTED BY THE STIPULATED FACTS OR THAT
ITS INFERENCE DOES NOT SUPPORT ITS ORDER. 

THE COMMISSION'S ORDER WILL BE SUSTAINED.  THE JUDGMENT BELOW WILL BE
REVERSED, AND THE CAUSE REMANDED WITH INSTRUCTIONS TO ENFORCE THE
COMMISSION'S ORDER.  SO ORDERED. 

FN1  AS ORIGINALLY INTRODUCED, THE ROBINSON-PATMENT AMENDMENT
CONTAINED NO PROVISION SIMILAR TO THAT IN SEC. 2 OF THE CLAYTON ACT AS
ORIGINALLY ENACTED, WHICH PROVIDED "THAT NOTHING HEREIN CONTAINED SHALL
PREVENT  ...  DISCRIMINATION IN PRICE IN THE SAME OR DIFFERENT
COMMUNITIES MADE IN GOOD FAITH TO MEET COMPETITION."  IN THE SENATE
THIS EXISTING PROVISION WAS ADDED BY AMENDMENT TO THE ROBINSON-PATMAN
BILL.  80 CONG. REC. 6426, 6435.  IN THE HOUSE, THE JUDICIARY COMMITTEE
REPORTED THE BILL WITH THE PROVISO, SUBSTANTIALLY AS ENACTED IN SEC.
2(B).  80 CONG. REC. 8139.  THE CONFERENCE COMMITTEE REJECTED THE
SENATE VERSION AND APPROVED THE HOUSE AMENDMENT.  THE REPORT OF THE
CONFERENCE COMMITTEE, SPEAKING OF THE SENATE PROVISO, SAID:  "THIS
LANGUAGE IS FOUND IN EXISTING LAW, AND IN THE OPINION OF THE CONFEREES
IS ONE OF THE OBSTACLES TO ENFORCEMENT OF THE PRESENT CLAYTON ACT  ....
A PROVISION RELATING TO THE QUESTION OF MEETING COMPETITION, INTENDED
TO OPERATE ONLY AS A RULE OF EVIDENCE IN A PROCEEDING BEFORE THE
FEDERAL TRADE COMMISSION, IS INCLUDED IN SUBSECTION (B)  ..."  H. REP.
NO. 2951, 74TH CONG., 2D SESS., PP. 6-7. 

FN2  THE CHAIRMAN OF THE HOUSE CONFEREES, IN PRESENTING THE
CONFERENCE REPORT, EMPHASIZED WITH ILLUSTRATIONS THAT "THIS PROCEDURAL
PROVISION CANNOT BE CONSTRUED AS A CARTE BLANCHE EXEMPTION TO VIOLATE
THE BILL SO LONG AS A COMPETITOR CAN BE SHOWN TO HAVE VIOLATED IT
FIRST, NOR SO LONG AS THAT COMPETITION CANNOT BE MET WITHOUT THE USE OF
OPPRESSIVE DISCRIMINATIONS IN VIOLATION OF THE OBVIOUS INTENT OF THE
BILL."  SEE 80 CONG. REC. 9418. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 
..END :











WHITE V. RAGEN, 324 U.S. 760 


ARGUED MARCH 29, APRIL 2, 1945.  - DECIDED APRIL 23, 1945.  - WRITS
DISMISSED. 


1.  THE PETITIONS FOR HABEAS CORPUS IN THESE CASES SUFFICIENTLY
ALLEGED VIOLATIONS OF PETITIONERS' RIGHTS UNDER THE FEDERAL
CONSTITUTION.  P. 764. 

2.  THIS COURT IS UNABLE TO SAY THAT THE REFUSAL OF THE SUPREME COURT
OF ILLINOIS TO ENTERTAIN THE PETITIONS FOR HABEAS CORPUS IN THESE CASES
DOES NOT REST ON AN ADEQUATE NON-FEDERAL GROUND; AND THE WRITS OF
CERTIORARI HEREIN MUST BE DISMISSED.  P. 766. 

3.  IN VIEW OF THE PRACTICE ADOPTED BY THE SUPREME COURT OF ILLINOIS,
IT FOLLOWS THAT WHENEVER A PETITION ORIGINALLY FILED IN THAT COURT FOR
A WRIT OF HABEAS CORPUS IS DENIED, WITHOUT OPINION OR OTHER INDICATION
OF THE GROUND OF ITS DECISION, AND WHEN THE PETITION RELIES ON
ALLEGATIONS OF FACT TO RAISE FEDERAL QUESTIONS, IT IS UNNECESSARY FOR
THE PETITIONER, IN ORDER TO EXHAUST HIS STATE REMEDIES, TO APPLY TO
THIS COURT FOR CERTIORARI TO REVIEW THE JUDGMENT OF THE SUPREME COURT
OF ILLINOIS.  A DENIAL OF CERTIORARI BY THIS COURT IN SUCH
CIRCUMSTANCES DOES NOT BAR AN APPLICATION TO A FEDERAL DISTRICT COURT
FOR THE RELIEF, GROUNDED ON FEDERAL RIGHTS, WHICH THE SUPREME COURT OF
ILLINOIS HAS DENIED.  BUT ANY OTHER STATE REMEDIES, IF AVAILABLE, MUST
BE EXHAUSTED BEFORE ANY APPLICATION TO THE FEDERAL DISTRICT COURT.  P.
767. 

4.  A PETITION FOR CERTIORARI TO REVIEW A JUDGMENT OF THE SUPREME
COURT OF ILLINOIS DENYING AN APPLICATION FOR HABEAS CORPUS, WHICH MUST
BE DENIED HERE BECAUSE THE DECISION OF THAT COURT APPEARS TO REST ON AN
ADEQUATE NON-FEDERAL GROUND, CAN NOT BE TREATED AS A PETITION TO REVIEW
A DECISION OF A LOWER COURT OF THE STATE WHICH HAD DENIED AN EARLIER
APPLICATION FOR HABEAS CORPUS, SINCE THE PETITION IN THE LOWER STATE
COURT IS NOT BEFORE THIS COURT AND ITS CONTENTS DO NOT OTHERWISE APPEAR
OF RECORD.  P. 767. 

WHITE V. RAGEN, WARDEN. 

NO. 212.  CERTIORARI TO THE SUPREME COURT OF ILLINOIS.* 

*TOGETHER WITH NO. 259, LUTZ V. RAGEN, WARDEN, ALSO ON CERTIORARI TO
THE SUPREME COURT OF ILLINOIS. 

CERTIORARI, 323 U.S. 704, TO REVIEW JUDGMENTS DENYING LEAVE TO FILE
PETITIONS FOR HABEAS CORPUS. 

PER CURIAM. 

IN THESE CASES, PETITIONERS MOVED IN THE SUPREME COURT OF ILLINOIS
FOR LEAVE TO FILE THEIR PETITIONS FOR HABEAS CORPUS.  BOTH PETITIONERS
ARE IN THE CUSTODY OF RESPONDENT, UNDER SENTENCES UPON STATE
CONVICTIONS.  IN EACH CASE, THE ILLINOIS COURT, WITHOUT REQUIRING AN
ANSWER FROM RESPONDENT, WITHOUT APPOINTING AN ATTORNEY TO REPRESENT
PETITIONERS, AND WITHOUT GIVING ANY REASONS FOR ITS ACTION, DENIED
LEAVE TO FILE THE PETITIONS.  WE GRANTED CERTIORARI, IN FORMA PAUPERIS,
323 U.S. 704, BECAUSE THE PETITIONS ALLEGED FACTS SHOWING PRIMA FACIE
VIOLATIONS OF PETITIONERS' RIGHTS GUARANTEED BY THE FEDERAL
CONSTITUTION, AND IN ORDER TO CONSIDER WHETHER THE STATE OF ILLINOIS
AFFORDS CORRECTIVE PROCESS FOR SUCH VIOLATIONS OF CONSTITUTIONAL
RIGHT.  FN1  ON APPLICATION OF THE PETITIONERS, COUNSEL WAS APPOINTED
TO REPRESENT THEM IN THIS COURT. 

PETITIONER WHITE, IN NO. 212, ALLEGED IN HIS PETITION FOR HABEAS
CORPUS THAT TWO INDICTMENTS FOR "OBTAINING MONEY AND GOODS BY MEANS OF
THE CONFIDENCE GAME" WERE RETURNED AGAINST HIM IN THE STATE CRIMINAL
COURT; THAT THE COURT, IN ADVANCE OF THE TRIAL, APPOINTED COUNSEL TO
REPRESENT PETITIONER, BUT THAT THE PERSON SO APPOINTED DID NOT CONFER
WITH PETITIONER UNTIL THEY CAME TO COURT FOR THE TRIAL; THAT THEN
COUNSEL REFUSED TO DO ANYTHING FOR PETITIONER UNLESS PETITIONER HAD
SOME MONEY; THAT IN PARTICULAR PETITIONER ASKED COUNSEL TO HAVE ONE
WITNESS CALLED IN HIS BEHALF BUT COUNSEL REPLIED THAT "HE DID NOT HAVE
TIME, AS HE HAD A CASE IN ANOTHER COURT, AND FOR ME TO PLEAD GUILTY, AS
THE JUDGE WOULD NOT GIVE ME A CONTINUANCE."  THE PETITION FOR HABEAS
CORPUS FURTHER ALLEGED THAT PETITIONER ASKED THE TRIAL JUDGE "TO
CONTINUE THE PROCEEDINGS SO HE COULD HAVE TIME TO CALL A WITNESS, AND
CONFER WITH HIS ATTORNEY"; THAT THE JUDGE THEN TOLD PETITIONER "TO KEEP
STILL, AS HIS LAWYER WOULD DO ALL THE TALKING FOR HIM" AND "THEREUPON
THE ATTORNEY PLEADED THE PETITIONER GUILTY TO TWO INDICTMENTS," ON
WHICH HE WAS GIVEN SENTENCES OF FROM ONE TO TEN YEARS, TO BE SERVED
CONCURRENTLY; AND THAT PETITIONER WAS THEREBY DENIED THE ASSISTANCE OF
COUNSEL IN A CRIMINAL TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT. 

THE PETITION FOR HABEAS CORPUS OF PETITIONER LUTZ, IN NO. 259,
ALLEGED THAT HE WAS TRIED AND CONVICTED FOR THE CRIME OF MURDER IN THE
STATE CIRCUIT COURT; THAT HE WAS SENTENCED TO LIFE IMPRISONMENT; AND
THAT HIS TRIAL AND CONVICTION WERE WITHOUT DUE PROCESS IN VIOLATION OF
THE FOURTEENTH AMENDMENT, IN THAT HIS CONVICTION WAS OBTAINED BY THE
USE OF FALSE TESTIMONY OF TWO WITNESSES FOR THE STATE.  IT WAS ALLEGED
THAT THE PROSECUTING ATTORNEY INDUCED AND PROCURED THIS TESTIMONY BY
BRIBERY OF THE WITNESSES; AND THAT HE INTRODUCED IT AT THE TRIAL, WITH
KNOWLEDGE THAT IT WAS FALSE.  ATTACHED TO THE PETITION ARE THE
AFFIDAVITS OF THE TWO WITNESSES IN QUESTION, EACH STATING THAT HIS
TESTIMONY AT THE TRIAL WAS FALSE AND THAT HE WAS BRIBED TO GIVE IT BY
THE PROSECUTING ATTORNEY.  THE AFFIDAVITS OF TWO OTHER PERSONS, ALSO
ATTACHED TO THE PETITION, TEND TO CORROBORATE THE AFFIDAVITS OF THE TWO
WITNESSES. 

SINCE THE SUPREME COURT OF ILLINOIS DISMISSED BOTH PETITIONS WITHOUT
REQUIRING RESPONDENT TO ANSWER, WE MUST ASSUME THAT THE PETITIONERS'
ALLEGATIONS ARE TRUE.  WILLIAMS V. KAISER, 323 U.S. 471, 473-474; HOUSE
V. MAYO, 324 U.S. 42.  WE HAVE MANY TIMES REPEATED THAT NOT ONLY DOES
DUE PROCESS REQUIRE THAT A DEFENDANT, ON TRIAL IN A STATE COURT UPON A
SERIOUS CRIMINAL CHARGE AND UNABLE TO DEFEND HIMSELF, SHALL HAVE THE
BENEFIT OF COUNSEL, COMPARE WILLIAMS V. KAISER, SUPRA, TOMKINS V.
MISSOURI, 323 U.S. 485 AND RICE V. OLSON, POST, P. 786, WITH BETTS V.
BRADY, 316 U.S. 455, BUT THAT IT IS A DENIAL OF THE ACCUSED'S
CONSTITUTIONAL RIGHT TO A FAIR TRIAL TO FORCE HIM TO TRIAL WITH SUCH
EXPEDITION AS TO DEPRIVE HIM OF THE EFFECTIVE AID AND ASSISTANCE OF
COUNSEL.  POWELL V. ALABAMA, 287 U.S. 45; AVERY V. ALABAMA, 308 U.S.
444; EX PARTE HAWK, 321 U.S. 114, 115-116; HOUSE V. MAYO, SUPRA.  AND
WE HAVE OFTEN POINTED OUT THAT A CONVICTION, SECURED BY THE USE OF
PERJURED TESTIMONY KNOWN TO BE SUCH BY THE PROSECUTING ATTORNEY, IS A
DENIAL OF DUE PROCESS.  MOONEY V. HOLOHAN, 294 U.S. 103; PYLE V.
KANSAS, 317 U.S. 213; CF. NEW YORK EX REL. WHITMAN V. WILSON, 318 U.S.
688.  IT FOLLOWS THAT THE ALLEGATIONS OF FACT IN THE PETITIONS ARE
SUFFICIENT TO MAKE OUT PRIMA FACIE CASES OF VIOLATION OF THESE
CONSTITUTIONAL RIGHTS OF PETITIONERS, SUFFICIENT TO INVOKE CORRECTIVE
PROCESS IN SOME COURT, AND IN THE FEDERAL DISTRICT COURT IF NONE IS
AFFORDED BY THE STATE. 

THE AVAILABILITY OF SUCH A REMEDY IN THE FEDERAL DISTRICT COURT,
TURNING AS IT DOES ON THE EXHAUSTION OF STATE CORRECTIVE PROCESSES, SEE
MOONEY V. HOLOHAN, SUPRA; EX PARTE HAWK, SUPRA, 116-117, MAY ALSO
DEPEND UPON AN APPLICATION TO THIS COURT TO REVIEW THE DECISION OF THE
STATE COURT, AND UPON THE DISPOSITION OF SUCH AN APPLICATION HERE. 
WHERE THE HIGHEST STATE COURT IN WHICH A DECISION COULD BE HAD
CONSIDERS AND ADJUDICATES THE MERITS OF A PETITION FOR HABEAS CORPUS,
STATE REMEDIES, INCLUDING APPELLATE REVIEW, ARE NOT EXHAUSTED SO AS TO
PERMIT THE FILING OF A PETITION FOR HABEAS CORPUS IN A FEDERAL DISTRICT
COURT, UNLESS THE FEDERAL QUESTION INVOLVED IS PRESENTED TO THIS COURT
ON CERTIORARI OR APPEAL FROM THE STATE COURT DECISION.  EX PARTE HAWK,
SUPRA, 116-117. 

IF THIS COURT DENIES CERTIORARI AFTER A STATE COURT DECISION ON THE
MERITS, OR IF IT REVIEWS THE CASE ON THE MERITS, A FEDERAL DISTRICT
COURT WILL NOT USUALLY REEXAMINE ON HABEAS CORPUS THE QUESTIONS THUS
ADJUDICATED.  EX PARTE HAWK, SUPRA, 118.  BUT WHERE THE DECISION OF THE
STATE COURT IS THAT THE REMEDY OF HABEAS CORPUS IS NOT AVAILABLE UNDER
THE STATE PRACTICE, OR ITS DECISION IS BASED UPON SOME OTHER ADEQUATE
NON-FEDERAL GROUND, IT IS UNNECESSARY FOR THE PETITIONER TO ASK THIS
COURT FOR CERTIORARI IN ORDER TO EXHAUST HIS STATE REMEDIES, SINCE WE
WOULD LACK JURISDICTION TO REVIEW THE DECISION OF THE STATE COURT; AND
THE DENIAL OF CERTIORARI BY THIS COURT WOULD NOT PRECLUDE A DISTRICT
COURT FROM INQUIRING INTO THE FEDERAL QUESTION PRESENTED TO, BUT NOT
CONSIDERED BY, THE STATE COURT.  SEE HOUSE V. MAYO, SUPRA, 48.  HENCE,
WHEN THIS COURT DENIES OR DISMISSES CERTIORARI IN THIS TYPE OF CASE,
WITHOUT PASSING ON THE MERITS, IT MAY, AS IN THE PRESENT CASE, BE OF
IMPORTANCE TO THE ADMINISTRATION OF JUSTICE IN THE FEDERAL DISTRICT
COURTS, THAT WE INDICATE AUTHORITATIVELY FOR THEIR GUIDANCE THE VIEW WE
TAKE OF THE AVAILABILITY OF THE STATE REMEDIES, AND THE REASONS FOR OUR
DECISION. 

ON THE ARGUMENT OF THESE CASES IN THIS COURT THE ATTORNEY GENERAL OF
ILLINOIS URGED THAT THE WRITS OF CERTIORARI BE DISMISSED FOR WANT OF
OUR JURISDICTION TO ENTERTAIN THEM.  IT WAS ARGUED, INTER ALIA, THAT
THE RECORD IN EACH CASE, WHEN READ IN THE LIGHT OF THE ILLINOIS LAW,
INDICATES THAT THE JUDGMENT OF THE STATE SUPREME COURT, DENYING LEAVE
TO FILE, DID NOT DECIDE ANY FEDERAL QUESTION OR AT LEAST THAT THE
RECORD FAILS TO SHOW THAT THE JUDGMENT DOES NOT REST ON A STATE GROUND
ADEQUATE TO SUPPORT IT.  BUT THE SUPREME COURT OF ILLINOIS HAS NOT
STATED THE GROUNDS FOR ITS DENIAL OF THE PETITIONS FOR HABEAS CORPUS,
AND EXAMINATION OF THE RECORD LEAVES US IN DOUBT AS TO WHETHER IT
DECIDED THE FEDERAL QUESTIONS PRESENTED BY THE PETITIONS, OR WHETHER
DECISION TURNED UPON STATE GROUNDS. 

IN SUPPORT OF RESPONDENT'S CONTENTION THAT THE JUDGMENTS OF THE
ILLINOIS SUPREME COURT REST UPON A NON-FEDERAL GROUND, OUR ATTENTION IS
DIRECTED TO THE DECISION OF THAT COURT, RENDERED ON MARCH 22, 1945, IN
THE CASE OF PEOPLE EX REL. SWOLLEY V. RAGEN, 390 ILL. 106.  THERE, AS
HERE, THE SUPREME COURT OF ILLINOIS DENIED LEAVE TO FILE A PETITION FOR
A WRIT OF HABEAS CORPUS, WITHOUT REQUIRING RESPONDENT TO ANSWER.  IN
DENYING THE RELIEF SOUGHT, THE COURT MADE AN "ANNOUNCEMENT" TO BE FILED
WITH THE RECORD IN THE CASE, WITH RESPECT TO ITS PRACTICE UPON ORIGINAL
APPLICATIONS FOR HABEAS CORPUS IN THAT COURT.  IN ITS ANNOUNCEMENT IT
DECLARED:  "ANY PETITION WHICH RAISES QUESTIONS OF FACT ONLY WILL NOT
BE CONSIDERED.  THIS COURT DOES NOT TRY QUESTIONS OF FACT." 

IN THAT CASE THERE WAS NO ANSWER OR RESPONSE TO THE PETITION AND
HENCE NO ISSUE OF FACT HAD BEEN RAISED.  DISMISSAL OF THE PETITION
MIGHT THEREFORE INVOLVE A DECISION ON THE LEGAL SUFFICIENCY OF THE
FACTS ALLEGED IN THE PETITION.  SINCE THERE WERE NO ISSUES OF FACT AT
THAT STAGE OF THE PROCEEDING, AND SINCE A QUESTION OF LAW, THE LEGAL
SUFFICIENCY OF THE PETITION, IS ALWAYS THEN PRESENT, WE MUST TAKE IT,
AS THE ATTORNEY GENERAL OF ILLINOIS STATES, THAT THE COURT'S
ANNOUNCEMENT MEANS THAT THE SUPREME COURT OF THE STATE WILL NOT
ENTERTAIN ORIGINAL APPLICATIONS FOR HABEAS CORPUS, SAVE ON A RECORD
WHICH EXCLUDES ON ITS FACE THE POSSIBILITY OF ANY TRIAL IN THAT COURT
OF AN ISSUE OF FACT.  FN2  IN THE FACE OF THE ANNOUNCEMENT, EVIDENTLY
INTENDED TO SETTLE THE PRACTICE UPON PETITIONS FOR HABEAS CORPUS IN
THAT COURT, AND IN THE ABSENCE OF ANY OPINION INDICATING THAT DECISION
IN THE PRESENT CASES TURNED ON A FEDERAL QUESTION, WE CANNOT SAY THAT
THE REFUSAL TO ENTERTAIN THE PETITIONS FOR HABEAS CORPUS IN THESE CASES
DOES NOT REST ON AN ADEQUATE NON-FEDERAL GROUND.  FOR THAT REASON, WE
MUST DISMISS THESE WRITS OF CERTIORARI.  WE DO NOT REACH THE
ALTERNATIVE ARGUMENT, MADE BY THE ATTORNEY GENERAL, THAT PETITIONERS'
REMEDY IN THE STATE COURTS IS NOT HABEAS CORPUS, BUT THE STATUTORY
SUBSTITUTE FOR THE WRIT OF ERROR CORAM NOBIS, ILL. CIVIL PRACTICE ACT,
SEC. 72, AND THAT THE TWO REMEDIES ARE MUTUALLY EXCLUSIVE. 

IT FOLLOWS THAT WHENEVER THE ILLINOIS SUPREME COURT DENIES A PETITION
FOR THE WRIT ORIGINALLY FILED IN THAT COURT, WITHOUT OPINION OR OTHER
INDICATION OF THE GROUND OF ITS DECISION, AND WHEN THE PETITION RELIES
ON ALLEGATIONS OF FACT TO RAISE FEDERAL QUESTIONS, IT IS UNNECESSARY
FOR THE PETITIONER, IN ORDER TO EXHAUST HIS STATE REMEDIES, TO APPLY TO
THIS COURT FOR CERTIORARI TO REVIEW THE JUDGMENT OF THE SUPREME COURT
OF ILLINOIS.  A DENIAL OF CERTIORARI BY THIS COURT IN SUCH
CIRCUMSTANCES DOES NOT BAR AN APPLICATION TO A FEDERAL DISTRICT COURT
FOR THE RELIEF, GROUNDED ON FEDERAL RIGHTS, WHICH THE SUPREME COURT OF
ILLINOIS HAS DENIED.  BUT ANY OTHER STATE REMEDIES, IF AVAILABLE, MUST
BE EXHAUSTED BEFORE ANY APPLICATION TO THE FEDERAL DISTRICT COURT.  EX
PARTE HAWK, SUPRA, 116-117. 

PETITIONER WHITE HAD MADE AN EARLIER APPLICATION FOR HABEAS CORPUS TO
THE CRIMINAL COURT OF COOK COUNTY.  ON THE ARGUMENT, COUNSEL FOR
PETITIONER WHITE ASKED THAT IN THE EVENT IT BE DECIDED THAT THE
ILLINOIS SUPREME COURT'S DECISION WAS BASED UPON AN ADEQUATE NON
FEDERAL GROUND, HIS PETITION FOR CERTIORARI BE TREATED AS SEEKING
REVIEW OF THE DECISION OF THE CRIMINAL COURT.  FN3  WE ARE UNABLE TO DO
SO, SINCE WE DO NOT HAVE BEFORE US THE PETITION IN THE CRIMINAL COURT,
AND ITS CONTENTS DO NOT OTHERWISE APPEAR OF RECORD.  DISMISSED. 

FN1  IN THE LAST TWO TERMS OF THIS COURT, TO APRIL 21, 1945, 225
PETITIONS FOR CERTIORARI HAVE BEEN FILED TO REVIEW THE DENIAL BY THE
ILLINOIS SUPREME COURT OF LEAVE TO FILE PETITIONS FOR HABEAS CORPUS. 
FROM OUR EXAMINATION OF THESE APPLICATIONS, IT APPEARS THAT IN NO CASE
DID THE SUPREME COURT OF ILLINOIS DEPART FROM THE PRACTICE OF DENYING
LEAVE TO FILE WITHOUT CALLING FOR A RESPONSE AND WITHOUT OPINION.  MANY
OF THESE APPLICATIONS DISCLOSED THAT THE PETITIONERS HAD PREVIOUSLY
MADE APPLICATION TO ONE OR MORE CIRCUIT OR CRIMINAL COURTS IN ILLINOIS,
WHERE IN THE LARGE MAJORITY OF CASES THEIR PETITIONS WERE DENIED
WITHOUT CALLING FOR A RESPONSE OR APPOINTING AN ATTORNEY, AND WITHOUT
GIVING ANY REASON FOR THE DENIAL OTHER THAN THE STATEMENT IN SOME CASES
THAT THE COURT LACKED JURISDICTION.  IN A FEW OF THESE LOWER COURT
CASES, IN WHICH ATTORNEYS WERE APPOINTED TO REPRESENT THE PETITIONERS,
THE PETITIONS WERE DENIED WITHOUT FURTHER PROCEEDINGS. 

IT ALSO HAS COME TO THE ATTENTION OF THIS COURT THAT FOR SOME YEARS
THE WARDEN OF THE ILLINOIS STATE PENITENTIARY, CONTRARY TO EX PARTE
HULL, 312 U.S. 546, DENIED THE RIGHTS OF PRISONERS TO ACCESS TO THE
COURTS UNLESS THEY PROCURED COUNSEL TO REPRESENT THEM.  SEE UNITED
STATES EX REL. FOLEY V. RAGEN, 52 F.SUPP.  265, 143 F.2D 774; UNITED
STATES EX REL. BONGIORNO V. RAGEN, 54 F.SUPP.  973. 

FN2  APPARENTLY THE PRACTICE OF THE ILLINOIS SUPREME COURT WAS NOT
HERETOFORE SO RESTRICTED.  CF. PEOPLE EX REL. DAY V. LEWIS, 376 ILL.
509, 34 N.E.2D 712, WHERE THE COURT CALLED FOR A RETURN TO A PETITION
WHICH ALLEGED ARBITRARY ACTION BY STATE OFFICERS IN REVOKING
PETITIONER'S "GOOD-TIME" CREDIT. 

FN3  A DENIAL OF HABEAS CORPUS BY THE LOWER STATE COURTS IN ILLINOIS,
WHICH HAVE JURISDICTION CONCURRENT WITH THAT OF THE STATE SUPREME COURT
TO ISSUE HABEAS CORPUS, SEE ILL. ANN. STAT. (SMITH-HURD), CH. 65, SEC.
2; PEOPLE V. SUPERIOR COURT, 234 ILL. 186, 197, 84 N.E. 875, APPEARS
NOT TO BE REVIEWABLE BY THE ILLINOIS SUPREME COURT.  SEE PEOPLE V.
MCANALLY, 221 ILL. 66, 77 N.E. 544; PEOPLE V. SIMAN, 284 ILL. 28, 119
N.E. 940.  FOR PURPOSES OF REVIEW HERE UNDER SEC. 237 OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 344, THE DENIAL OF HABEAS CORPUS BY ONE OF THE
LOWER COURTS OF ILLINOIS, NOT REVIEWABLE IN ANY OTHER STATE COURT, IS A
DECISION BY THE HIGHEST COURT OF THE STATE IN WHICH A DECISION COULD BE
HAD.  BETTS V. BRADY, 316 U.S. 455; CF. LARGENT V. TEXAS, 318 U.S.
418.  AND IT FOLLOWS FROM THE LACK OF A REMEDY IN THE ILLINOIS SUPREME
COURT IN SUCH A CASE, THAT AN ORIGINAL APPLICATION TO THAT COURT FOR
THE WRIT IS NOT PREREQUISITE TO REVIEW HERE OF THE DECISION OF THE
LOWER STATE COURT.  CF. TENNER V. DULLEA, 314 U.S. 692.    MR. JUSTICE
ROBERTS CONCURS IN THE RESULT. 
..END :





UNITED STATES V. BEUTTAS, 324 U.S. 768 


NO. 431.  ARGUED MARCH 1, 1945.  - DECIDED APRIL 23, 1945.  - 101 CT.
CLS. 748, REVERSED. 


IN THE CIRCUMSTANCES OF THIS CASE, THERE WAS NO BASIS FOR RECOVERY BY
THE CONTRACTOR OF THE DIFFERENCE BETWEEN THE HIGHER WAGES PAID AND
THOSE SPECIFIED IN THE GOVERNMENT CONTRACT.  P. 772. 

UNITED STATES V. BEUTTAS ET AL., TRADING AS B-W CONSTRUCTION CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 323 U.S. 702, TO REVIEW A JUDGMENT FOR THE PLAINTIFF IN
AN ACTION AGAINST THE UNITED STATES ON A CONTRACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS EXECUTED A CONTRACT WITH THE PETITIONER WHEREBY THEY
AGREED TO CONSTRUCT THE FOUNDATIONS FOR A PUBLIC HOUSING PROJECT.  BY
ARTICLE 19 THEY AGREED THAT WORKMEN OF DESIGNATED CLASSES SHOULD BE
PAID SPECIFIED MINIMUM WAGES, AND IF, DURING THE PROGRESS OF THE WORK,
THE PETITIONER SHOULD FIND IT DESIRABLE THAT WAGES HIGHER THAN THOSE
SPECIFIED SHOULD BE PAID, IT MIGHT ESTABLISH DIFFERENT RATES, AND IN
SUCH CASE THE CONTRACT PRICE SHOULD BE ADJUSTED ACCORDINGLY. 

THE RESPONDENTS PAID WAGES HIGHER THAN THOSE NAMED IN THE CONTRACT,
AND BROUGHT THIS ACTION, INTER ALIA, TO RECOVER THE DIFFERENCE.  THEY
INTRODUCED EVIDENCE TO PROVE THAT COMMENCEMENT OF THE WORK WAS
SUSPENDED BY DELAYS ON THE PART OF PETITIONER'S OFFICERS AND BY OTHER
CONDITIONS FOR WHICH THE RESPONDENTS WERE NOT RESPONSIBLE; THAT DURING
THE PERIOD OF SUSPENSION THE PETITIONER ASKED BIDS FOR ERECTION OF THE
SUPERSTRUCTURE, AND BY ITS ADVERTISEMENT REQUIRED BIDDERS TO PAY HIGHER
RATES TO THE SAME CLASSES OF WORKMEN THAN THE MINIMA SPECIFIED IN THE
RESPONDENTS' CONTRACT; THAT WHEN RESPONDENTS' EMPLOYEES LEARNED OF THIS
THEY DEMANDED WAGES EQUAL TO THOSE THAT WERE TO BE PAID FOR WORK ON THE
SUPERSTRUCTURE; AND THAT TO OBTAIN WORKERS AND TO SETTLE A STRIKE THE
RESPONDENTS HAD TO PAY SUCH INCREASED WAGES. 

IT APPEARS THAT RESPONDENTS SUBMITTED A CLAIM FOR REIMBURSEMENT FOR
THE INCREASE IN WAGES TO THE CONTRACTING OFFICER WHO DISALLOWED IT, AND
THEN APPEALED TO THE ASSISTANT ADMINISTRATOR OF PUBLIC WORKS WHO FILED
A WRITTEN DECISION SUSTAINING THE CONTRACTING OFFICER'S RULING.  THE
ADMINISTRATOR, IN TURN, REJECTED THE CLAIM.  IT IS URGED THAT THE LAST
NAMED OFFICIAL WAS IN ERROR AS TO CERTAIN OF THE FACTS, BUT THERE IS NO
SUGGESTION THAT HE ACTED ARBITRARILY OR IN BAD FAITH. 

THE PETITIONER'S DEFENSE IS GROUNDED IN CERTAIN PROVISIONS OF THE
CONTRACT AND THE SPECIFICATIONS FORMING A PART OF IT, AND FACTS FOUND
BY THE COURT BELOW. 

ARTICLE 3 PROVIDED THAT THE CONTRACTING OFFICER MIGHT MAKE CHANGES IN
THE DRAWINGS AND SPECIFICATIONS WITHIN THE GENERAL SCOPE THEREOF; THAT
AN EQUITABLE ADJUSTMENT AS TO ANY INCREASE OR DECREASE OF COST DUE TO
SUCH CHANGES BY THE CONTRACTING OFFICER OR, IN SPECIFIED CASES, HIS
SUPERIOR, SHOULD BE MADE; AND THAT IF THE CONTRACTOR WAS DISSATISFIED
WITH THE DECISION, THE DISPUTE SHOULD "BE DETERMINED AS PROVIDED IN
ARTICLE 15 HEREOF." 

ARTICLE 15 IS: 

"DISPUTES:  ALL LABOR ISSUES ARISING UNDER THIS CONTRACT WHICH CANNOT
BE SATISFACTORILY ADJUSTED BY THE CONTRACTING OFFICER SHALL BE
SUBMITTED TO THE HEAD OF THE DEPARTMENT.  EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN THIS CONTRACT, ALL OTHER DISPUTES CONCERNING
QUESTIONS ARISING UNDER THIS CONTRACT SHALL BE DECIDED BY THE
CONTRACTING OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE, SUBJECT TO
WRITTEN APPEAL BY THE CONTRACTOR WITHIN 30 DAYS TO THE HEAD OF THE
DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE
DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO AS TO
SUCH QUESTIONS.  IN THE MEANTIME THE CONTRACTOR SHALL DILIGENTLY
PROCEED WITH THE WORK AS DIRECTED." 

PARAGRAPH 4 OF SEC. 12 OF DIVISION I OF THE SPECIFICATIONS STATED: 

"THE GOVERNMENT WILL NOT CONSIDER ANY CLAIMS FOR ADDITIONAL
COMPENSATION MADE BY THE CONTRACTOR BECAUSE OF PAYMENT BY THE
CONTRACTOR OF ANY WAGE RATE IN EXCESS OF THE APPLICABLE RATE CONTAINED
HEREIN.  ALL DISPUTES IN REGARD TO THE PAYMENT OF WAGES IN EXCESS OF
THOSE SPECIFIED HEREIN SHALL BE ADJUSTED BY THE CONTRACTOR." 

WHEN RESPONDENTS ENTERED INTO THE CONTRACT, THEIR EMPLOYEES WERE
UNIONIZED AND WERE WORKING UNDER A WAGE SCALE FIXED BY AGREEMENT WHICH
WAS IN ACCORD WITH THE RATES FIXED BY THE CONTRACT.  THIS AGREEMENT DID
NOT EXPIRE BY ITS TERMS UNTIL TWELVE DAYS AFTER RESPONDENTS COMPLETED
THEIR WORK.  THESE WORKMEN STRUCK BECAUSE THEY DEMANDED THE SAME WAGES
AS WERE TO BE PAID TO WORKERS UNDER THE SUPERSTRUCTURE CONTRACT,
ACCORDING TO THE ADVERTISEMENT FOR BIDS FOR THAT WORK.  THE PETITIONER
DID NOT PARTICIPATE IN THE NEGOTIATIONS BETWEEN RESPONDENTS AND THEIR
STRIKING WORKMEN. 

THE GOVERNMENT'S DEFENSES WERE (1) THAT THE DISPUTE MUST BE DECIDED
BY THE PROCEDURE PRESCRIBED IN ARTICLE 15; THAT IT HAD BEEN SO DECIDED
ON THE RESPONDENTS' INVOCATION OF THAT PROCEDURE; THAT NO SHOWING OF
FRAUD OR ARBITRARY ACTION HAD BEEN MADE, AND THAT ACCORDINGLY THE
ADMINISTRATIVE DECISION WAS FINAL AND THE COURT OF CLAIMS WITHOUT
JURISDICTION; AND (2) THAT, IN ANY EVENT, NO BREACH OF THE CONTRACT ON
THE PART OF THE GOVERNMENT HAD BEEN SHOWN.  THESE CONTENTIONS WERE
OVERRULED BY A DIVIDED COURT, AND JUDGMENT WAS ENTERED FOR THE
RESPONDENTS.  FN1 

1.  THE RESPONDENTS' CONTENTION IS THAT IF ARTICLE 15 BE CONSTRUED TO
COVER SUCH A DISPUTE IT IS VOID AS AN ATTEMPT TO OUST THE JURISDICTION
OF THE COURT OF CLAIMS TO DECIDE A PURE MATTER OF LAW, NAMELY, WHETHER
ON THE FACTS FOUND, THE PETITIONER HAD BROKEN THE CONTRACT.  A MAJORITY
OF THE JUDGES SO HELD, AND ALSO THOUGHT ARTICLE 15 WAS NOT INTENDED TO
COVER SUCH A DISPUTE BUT ONLY ONE AS TO CHANGES, INTERPRETATION OF THE
SPECIFICATIONS AND SIMILAR MATTERS USUALLY REMITTED TO THE JUDGMENT OF
AN ARCHITECT. 

THE PARTIES DEVOTED MUCH OF THEIR ARGUMENT HERE TO THE QUESTION
WHETHER ONLY QUESTIONS OF FACT OR QUESTIONS OF MIXED LAW AND FACT CAN
BY CONTRACT BE MADE SUBJECT TO FINAL DETERMINATION BY AN ADMINISTRATIVE
OFFICER OF THE GOVERNMENT, OR WHETHER A QUESTION OF LAW MAY ALSO, BY
CONTRACT, BE MADE SUBJECT TO FINAL DETERMINATION BY SUCH AN OFFICER. 
OUR CASES HAVE NOT EXPLICITLY DRAWN ANY DISTINCTION BETWEEN THE TWO
CATEGORIES.  FN2  WE FIND IT UNNECESSARY TO DECIDE THE QUESTION, FOR WE
THINK IT CLEAR THAT THE RESPONDENTS MAY NOT RECOVER FOR THE INCREASED
WAGES IN THE CIRCUMSTANCES OF THIS CASE. 

2.  TWO OF THE THREE JUDGES IN THE MAJORITY BELOW WERE OF THE VIEW
THAT THE GOVERNMENT HAD IN FACT ESTABLISHED HIGHER WAGES FOR THE
RESPONDENTS' WORK AND WAS ACCORDINGLY LIABLE TO PAY THE INCREASED COST
UNDER ARTICLE 19 OF THE CONTRACT.  ALL THREE JUDGES IN THE MAJORITY
HELD THAT, IN ANY CASE, THE GOVERNMENT IS LIABLE BECAUSE WHAT IT DID
AMOUNTED TO A BREACH OF ITS IMPLIED OBLIGATION NOT TO RENDER
PERFORMANCE MORE COSTLY TO THE RESPONDENTS. 

CLEARLY THE PETITIONER DID NOT EXPRESSLY AVAIL ITSELF OF THE OPTION
TO SET HIGHER WAGE RATES FOR THE WORK COVERED BY THE RESPONDENTS'
CONTRACT.  IN THE LIGHT OF THE QUOTED PORTIONS OF THE CONTRACT AND
SPECIFICATIONS, IT CANNOT BE MAINTAINED THAT A RECOVERY IS JUSTIFIED
PURSUANT TO THE COVENANTS OF THE CONTRACT. 

AS AN ALTERNATIVE GROUND OF DECISION, SOME OF THE JUDGES BELOW
RESORTED TO THE PRINCIPLE THAT IT IS AN IMPLIED CONDITION OF EVERY
CONTRACT THAT NEITHER PARTY WILL HINDER THE OTHER IN HIS DISCHARGE OF
THE OBLIGATIONS IMPOSED UPON HIM, NOR INCREASE HIS COST OF
PERFORMANCE.  THEY HELD THAT, BY INVITING BIDS FOR THE SUPERSTRUCTURE
AT MINIMUM WAGES HIGHER THAN THOSE FIXED IN THE RESPONDENTS' CONTRACT
FOR THE FOUNDATIONS, THE PETITIONER BREACHED THIS IMPLIED CONDITION. 
BUT, OF COURSE, THIS CAN BE TRUE ONLY IF THE GOVERNMENT CAUSED THE
INCREASE IN WAGES.  AND THE FINDINGS, IN OUR JUDGMENT, RENDER A
CONCLUSION TO THAT EFFECT IMPOSSIBLE.  THE GOVERNMENT DID NOT STIPULATE
THAT THE TWO GROUPS, THOSE EMPLOYED ON THE FOUNDATIONS AND THOSE
EMPLOYED ON THE SUPERSTRUCTURE, SHOULD WORK AT THE SAME TIME AT
DIFFERENT WAGES.  ON THE CONTRARY, IT HAD EVERY REASON TO SUPPOSE THAT
THE FORMER WOULD FINISH THEIR WORK AT THE THEN AGREED RATE BEFORE THE
LATTER CAME ON THE WORK.  AND THIS IS WHAT HAPPENED.  THERE IS NO
FINDING THAT PETITIONER'S OFFICERS OR AGENTS HAD REASON TO EXPECT THAT
THE FIXING OF A WAGE RATE UNDER ANOTHER CONTRACT FOR A SEPARATE PORTION
OF THE WORK, WHICH WAS TO BE COMMENCED AFTER COMPLETION OF RESPONDENTS'
CONTRACT, WOULD CAUSE A BREACH OF THEIR EXISTING WAGE AGREEMENT BY
RESPONDENTS' EMPLOYEES.  MOREOVER, IT IS FOUND THAT THE PETITIONER TOOK
NO PART IN THE WAGE CONTROVERSY BETWEEN THE RESPONDENTS AND THEIR
EMPLOYEES.  IT FOLLOWS THAT THERE IS NO BASIS FOR A HOLDING THAT THE
GOVERNMENT KNOWINGLY HINDERED RESPONDENTS IN THE PERFORMANCE OF THE
CONTRACT OR CULPABLY INCREASED THEIR COSTS. 

THERE ARE OTHER ITEMS GOING TO MAKE UP THE AMOUNT OF THE JUDGMENT
ENTERED BY THE COURT OF CLAIMS WHICH ARE NOT ATTACKED.  AS TO THE ITEM
OF $3,751.83 INCREASED WAGE COSTS, THE JUDGMENT MUST BE REVERSED; IN
OTHER RESPECTS IT IS AFFIRMED.  THE CAUSE WILL BE REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY TO THIS OPINION. 

FN1  101 CT. CLS. 748; 60 F.SUPP.  771. 

FN2  SEE KIHLBERG V. UNITED STATES, 97 U.S. 398; SWEENEY V. UNITED
STATES, 109 U.S. 618; UNITED STATES V. GLEASON, 175 U.S. 588; PLUMLEY
V. UNITED STATES, 226 U.S. 545; MERRILL-RUCKGABER CO. V. UNITED STATES,
241 U.S. 387; UNITED STATES V. MASON & HANGER CO., 260 U.S. 323; GOLTRA
V. WEEKS, 271 U.S. 536; UNITED STATES V. JOHN MCSHAIN, INC., 308 U.S.
512; UNITED STATES V. CALLAHAN WALKER CO., 317 U.S. 56; UNITED STATES
V. BLAIR, 321 U.S. 730. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 
..END :







U.S. V. HANCOCK TRUCK LINES, 324 U.S. 774 


ARGUED MARCH 27, 1945.  - DECIDED APRIL 23, 1945.  - REVERSED. 


1.  THE PERIOD FOR TAKING AN APPEAL TO THIS COURT FROM A FINAL DECREE
OF A DISTRICT COURT OF THREE JUDGES IN A SUIT TO SET ASIDE AN ORDER OF
THE INTERSTATE COMMERCE COMMISSION IS SIXTY DAYS.  P. 776. 

2.  AN APPEAL TO THIS COURT FROM A FINAL DECREE OF A DISTRICT COURT
OF THREE JUDGES MAY BE ALLOWED BY A SINGLE JUDGE.  P. 777. 

3.  IT WAS IMPROPER FOR THE DISTRICT COURT TO REVERSE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION IN RESPECT OF A PROVISION THEREIN AS TO
WHICH THE SUITOR HAD ADVISED THE COMMISSION THAT IT NO LONGER OBJECTED
BUT ACQUIESCED.  P. 779. 

UNITED STATES ET AL. V. HANCOCK TRUCK LINES, INC. 

NO. 448.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF INDIANA* . 

*TOGETHER WITH NO. 449, REGULAR COMMON CARRIERS CONFERENCE OF
AMERICAN TRUCKING ASSOCIATIONS, INC. V. HANCOCK TRUCK LINES, INC., ALSO
ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF INDIANA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES WHICH SET
ASIDE IN PART AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, 42 M.C.C.
547. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE APPELLEE IS A MOTOR CARRIER.  WITH THE APPROVAL OF THE INTERSTATE
COMMERCE COMMISSION IT ACQUIRED THE OPERATING RIGHTS OF GLOBE CARTAGE
COMPANY, ANOTHER SUCH CARRIER, WHICH THEN HAD PENDING BEFORE THE
COMMISSION AN APPLICATION FOR A CERTIFICATE OF CONVENIENCE AND
NECESSITY UNDER SECS. 206(A) AND 209(A) OF THE INTERSTATE COMMERCE
ACT.  FN1  THE APPELLEE PROSECUTED THE APPLICATION AS GLOBE'S SUCCESSOR
TO OBTAIN A CERTIFICATE AUTHORIZING THE EXERCISE OF GLOBE'S SO-CALLED
"GRANDFATHER" RIGHTS, THAT IS, TO CONTINUE GLOBE'S OPERATIONS AS THEY
WERE CONDUCTED JULY 1, 1935. 

THE COMMISSION MADE AN ORDER AWARDING A CERTIFICATE TO APPELLEE AS A
COMMON CARRIER, BUT FOR LESS THAN ALL THE ROUTES EMBRACED IN THE
APPLICATION AND RESTRICTING APPELLEE'S OPERATIONS TO TRAFFIC MOVING ON
THE BILLS OF LADING OF FREIGHT FORWARDERS.  FN2  THE RECORD DISCLOSES
THAT THE APPELLEE FILED A PETITION FOR RECONSIDERATION, IN WHICH IT
PRESSED FOR AMENDMENT OF THE ORDER AS RESPECTS THE ROUTES PERMITTED,
BUT WAIVED OBJECTION TO THE RESTRICTION OF ITS TRAFFIC TO SERVICE OF
FREIGHT FORWARDERS.  IT STATED:  "WE DO NOT CHALLENGE, NOR DO WE
COMPLAIN AGAINST, THE RESTRICTION TO SERVE ONLY FREIGHT FORWARDERS." 
THERE IS MORE TO THE SAME EFFECT.  THE COMMISSION DENIED THE PETITION. 

THE APPELLEE BROUGHT SUIT  FN3  TO SET ASIDE AND ENJOIN ONLY SO MUCH
OF THE COMMISSION'S ORDER AS RESTRICTED ITS OPERATIONS TO TRAFFIC
MOVING ON BILLS OF LADING OF FREIGHT FORWARDERS.  A DISTRICT COURT OF
THREE JUDGES HEARD THE CASE, AND ISSUED A PERMANENT INJUNCTION AS
PRAYED.  ONE OF THESE JUDGES ALLOWED AN APPEAL TO THIS COURT ON A
PETITION FILED BY THE APPELLANTS MORE THAN THIRTY BUT LESS THAN SIXTY
DAYS AFTER ENTRY OF THE DECREE.  THE APPELLANT IN NO. 449 INTERVENED
BEFORE THE COMMISSION IN OPPOSITION TO THE APPELLEE'S APPLICATION, AND
WAS PERMITTED TO INTERVENE AS A DEFENDANT IN THE COURT BELOW.  NO
CIRCUMSTANCE DIFFERENTIATES ITS STATUS FROM THAT OF THE APPELLANTS IN
NO. 448, AND WHAT IS SAID CONCERNING THAT CASE MAY BE TAKEN AS
APPLICABLE TO NO. 449. 

THE APPELLEE MOVED TO DISMISS ON THE GROUND THAT THE APPEAL WAS NOT
TIMELY TAKEN AND WAS IMPROPERLY ALLOWED BY A SINGLE JUDGE.  WE
POSTPONED THE QUESTION OF OUR JURISDICTION TO THE HEARING ON THE
MERITS.  AFTER ARGUMENT AND UPON CONSIDERATION WE FIND OURSELVES IN THE
ANOMALOUS POSITION THAT WHEREAS WE HOLD WE HAVE JURISDICTION, WE CANNOT
PASS UPON THE SUBSTANTIVE QUESTION OF THE STATUTORY POWER OF THE
COMMISSION WHICH IS THE GROUND OF APPEAL. 

FIRST.  SINCE THE APPEAL IS FROM THE FINAL DECREE OF A STATUTORY
COURT OF THREE JUDGES, AND NOT FROM THE ENTRY OF A PRELIMINARY
INJUNCTION THE PERIOD FOR TAKING AN APPEAL IS SIXTY DAYS,  - NOT THIRTY
DAYS AS APPELLEE CONTENDS. 

WHEN BY THE ACT OF OCTOBER 22, 1913  FN4  THE COMMERCE COURT WAS
ABOLISHED AND ITS JURISDICTION TRANSFERRED TO DISTRICT COURTS, DEFINITE
PROVISION WAS MADE FOR DIRECT APPEAL TO THIS COURT, WITHIN THIRTY DAYS,
FROM AN ORDER GRANTING OR DENYING AN INTERLOCUTORY INJUNCTION IN A SUIT
TO SET ASIDE AN ORDER OF THE COMMISSION.  IN A LATER SENTENCE THE ACT
DECLARES "A FINAL JUDGMENT OR DECREE OF THE DISTRICT COURT MAY BE"
LIKEWISE REVIEWED "IF APPEAL  ... BE TAKEN  ...  WITHIN SIXTY DAYS"
AFTER ENTRY.  THE APPELLEE'S CONTENTION, AS WE SHALL SEE, RESTS ON THE
ASSUMPTION THAT WHEN THE ACT SPEAKS OF A FINAL DECREE, IT IS ADDRESSED
TO FINAL DECREES IN CASES OTHER THAN THOSE BROUGHT TO SET ASIDE ORDERS
OF THE COMMISSION.  BUT WE THINK THIS READING INCORRECT.  THE PARAGRAPH
AS A WHOLE DEALS WITH THE SAME TYPE OF SUIT. 

ON THIS ERRONEOUS ASSUMPTION THE APPELLEE INSISTS THAT WHEN THE ACT
OF FEBRUARY 13, 1925  FN5 RESTRICTED DIRECT REVIEW OF DISTRICT COURT
JUDGMENTS IN THIS FIELD BY REPEALING VARIOUS EARLIER LEGISLATION, BUT
SAVING FROM REPEAL "SO MUCH" OF THE ACT OF 1913 "AS RELATES TO THE
REVIEW OF INTERLOCUTORY AND FINAL JUDGMENTS AND DECREES IN SUITS TO
ENFORCE, SUSPEND, OR SET ASIDE ORDERS" OF THE COMMISSION, THE SENTENCE
OF THE EARLIER ACT APPLICABLE TO FINAL JUDGMENT WAS REPEALED BECAUSE IT
DID NOT DEAL WITH JUDGMENTS IN SUITS TO SET ASIDE COMMISSION ORDERS. 
THE ARGUMENT IS, TO SOME EXTENT, BASED ON THE FACT THAT WHEN THE U.S.C.
WAS COMPILED THE SENTENCE OF THE ACT OF 1913 DEALING WITH APPEALS FROM
INTERLOCUTORY INJUNCTIONS BECAME SEC. 47 OF TITLE 28 AND THE SENTENCE
DEALING WITH APPEALS FROM FINAL JUDGMENTS WAS OMITTED FROM THE TITLE. 
THE OMISSION WAS CORRECTED IN 1934 BY INSERTING THE LATTER SENTENCE AS
SEC. 47A.  FN6 

THE FACE OF THE STATUTES, THE UNIFORM PRACTICE OF THIS COURT  FN7
AND THE LEGISLATIVE HISTORY FN8  MAKE AGAINST THE CONTENTION THAT
APPEALS FROM FINAL DECREES IN THE CLASS OF CASES IN QUESTION MUST BE
TAKEN WITHIN THIRTY DAYS. 

SECOND.  WE HOLD THE OBJECTION THAT APPEAL WAS ALLOWED BY BUT ONE OF
THE THREE JUDGES WHO COMPOSED THE DISTRICT COURT IS UNTENABLE.  THE ACT
OF OCTOBER 22, 1913(SUPRA) REQUIRES THAT IN A CASE SUCH AS THIS BOTH
THE HEARING IN RESPECT OF AN INTERLOCUTORY INJUNCTION AND THE FINAL
HEARING SHALL BE BY THREE JUDGES.  FN9  IT SAYS NOTHING AS TO WHO SHALL
ALLOW AN APPEAL.  SINCE APPEAL IS OF RIGHT, ALLOWANCE WOULD SEEM TO BE
BUT A MINISTERIAL ACT WHICH MIGHT BE PERFORMED BY ANY MEMBER OF THE
COURT.  OUR PAST PRACTICE HAS APPARENTLY SANCTIONED SUCH AN ALLOWANCE. 
BUT IF THE PROPER PROCEDURE WAS FORMERLY A MATTER OF DOUBT, SUCH DOUBT
HAS BEEN REMOVED. 

CASE AS THIS A SINGLE JUDGE MAY "ENTER ALL ORDERS REQUIRED OR PERMITTED
BY THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED
STATES IN EFFECT AT THE TIME," WITH A PROVISO NOT HERE RELEVANT.  THERE
IS A FURTHER PROVISO THAT HIS ACTION SHALL BE SUBJECT TO REVIEW "AT ANY
TIME PRIOR TO FINAL HEARING," BY THE COURT AS CONSTITUTED AT FINAL
HEARING.  THIS, HOWEVER, IS OBVIOUSLY INAPPLICABLE TO ACTION TAKEN
SUBSEQUENT TO FINAL HEARING.  RULE 72 STATES THAT AN APPEAL TO THIS
COURT FROM A DISTRICT COURT SHALL BE ALLOWED "AS PRESCRIBED BY LAW AND
THE RULES OF THE SUPREME COURT OF THE UNITED STATES GOVERNING SUCH AN
APPEAL."  RULE 36 OF THIS COURT AUTHORIZES A SINGLE JUDGE OF A DISTRICT
COURT TO GRANT SUCH AN APPEAL. 

THIRD.  THE COURT BELOW HELD THAT THE COMMISSION ERRED IN GRANTING
APPELLEE A CERTIFICATE AS A COMMON CARRIER AND LIMITING ITS RIGHT
THEREUNDER TO CARRIAGE OF GOODS CONSIGNED BY FREIGHT FORWARDERS.  THIS
IS THE HOLDING THE APPELLANTS CHALLENGE.  WE ARE OF OPINION THAT THE
RECORD PRECLUDES CONSIDERATION AND DECISION OF THE QUESTION. 

AS HAS BEEN STATED, THE APPELLEE, IN ITS PETITION FOR RECONSIDERATION
BY THE COMMISSION, EXPRESSLY WAIVED OBJECTION TO THAT PORTION OF THE
ORDER WHICH LIMITED OPERATIONS TO TRAFFIC MOVING ON BILLS OF LADING TO
FREIGHT FORWARDERS.  THE COMMISSION'S ANSWER TO THE COMPLAINT IN THE
DISTRICT COURT RECITED THE FILING OF THAT PETITION AND ALLEGED THAT IN
IT "THE PLAINTIFF LIMITED ITS OBJECTIONS TO SAID REPORT AND ORDER, TO
THE COMMISSION'S PRESCRIPTION OF THE ROUTES OVER WHICH OPERATING
AUTHORITY WAS GRANTED THEREIN, EXPRESSLY WAIVED OBJECTION TO, AND DID
NOT CHALLENGE OR COMPLAIN AGAINST THE RESTRICTION OF THE TRANSPORTATION
AUTHORIZED TO COMMODITIES CONSIGNED BY FREIGHT FORWARDERS AND GAVE UP
ALL CLAIM TO THE RIGHT TO TRANSPORT GENERAL COMMODITIES NOT SO
CONSIGNED."  TO THIS ANSWER THE APPELLEE FILED A REPLY CONSISTING OF
ONE PARAGRAPH IN WHICH IT DENIED THE ALLEGATION ABOVE QUOTED, WITHOUT
EXPLANATION OR ELABORATION. 

THE COMMISSION AND THE UNITED STATES FILED IN THE COURT BELOW A
REQUEST FOR FINDINGS OF FACT WHICH INCLUDED A REQUESTED FINDING
RECITING THE FILING OF THE PETITION FOR RECONSIDERATION, AND STATED THE
"SOLE ERROR ALLEGED AGAINST THE COMMISSION WAS THAT IT GRANTED
AUTHORITY FOR OPERATION ONLY AS TO A PORTION OF THE ROUTES AND BETWEEN
SOME OF THE POINTS AND PLACES SPECIFIED IN THE APPLICATION.  IN SAID
PETITION THE PLAINTIFF FURTHER STATED THAT IT DID NOT CHALLENGE NOR
COMPLAIN AGAINST THE RESTRICTION OF THE SERVICE AUTHORIZED TO THE
TRANSPORTATION OF COMMODITIES WHICH ARE MOVING ON BILLS OF LADING OF
FREIGHT FORWARDERS."  THE COURT MADE NO SUCH FINDING. 

THE ONLY ASSIGNMENT OF ERROR WHICH MAY BE SAID TO ATTACK THE FAILURE
SO TO FIND IS ONE COUCHED IN GENERAL TERMS.  IT IS:  "THE DISTRICT
COURT ERRED  ...  4.  IN REFUSING TO ADOPT THE FINDINGS OF FACT AND
CONCLUSIONS OF LAW SUBMITTED BY THE DEFENDANTS." 

PUTTING TO ONE SIDE THE QUESTION WHETHER SUCH AN ASSIGNMENT IS TOO
GENERAL AND BROAD TO SUPPORT A CHALLENGE TO THE COURT'S FAILURE TO FIND
AS REQUESTED, AND DESPITE THE FACT THAT, NEITHER ON BRIEF NOR IN ORAL
ARGUMENT, DID THE APPELLANTS' COUNSEL PRESS FOR REVERSAL ON THAT
GROUND, WE THINK THE DISTRICT COURT COMMITTED REVERSIBLE ERROR, OF
WHICH WE MUST TAKE NOTE, IN PASSING ON THE MERITS OF THE CASE MADE BY
THE APPELLEE. 

IT WAS MANIFESTLY IMPROPER TO REVERSE THE COMMISSION'S ORDER IN
RESPECT OF A PROVISION THEREIN AS TO WHICH THE SUITOR HAD ADVISED THAT
BODY IT NO LONGER OBJECTED BUT ACQUIESCED.  THE RECORD DISCLOSED THIS
SITUATION, THE DEFENSIVE PLEADING RELIED UPON IT, AND THE COURT WAS
ASKED TO DISMISS BECAUSE OF IT.  THE COMPLAINT SHOULD HAVE BEEN
DISMISSED.  THE JUDGMENT IS REVERSED. 

FN1  49 U.S.C. SECS. 306(A), 309(A). 

FN2  41 M.C.C. 313; 42 M.C.C. 547. 

FN3  PURSUANT TO 28 U.S.C. SECS. 41(28), 43-48. 

FN4  38 STAT. 208, 219-220. 

FN5  43 STAT. 936. 

FN6  A LIKE CORRECTION WAS MADE IN SEC. 345. 

FN7  REFERENCE TO THE RECORDS OF THE COURT DISCLOSES THAT IT HAS
REPEATEDLY ENTERTAINED APPEALS TAKEN MORE THAN THIRTY BUT LESS THAN
SIXTY DAYS AFTER ENTRY OF FINAL JUDGMENT. 

FN8  HEARINGS H.R. 8206, 68TH CONG., 1ST SESS., P. 15; SENATE REPORT
ON S. 2060, 68TH CONG., 1ST SESS., P. 16. 

FN9  SEE 28 U.S.C. SEC. 47. 

FN10  56 STAT. 198, 199; 28 U.S.C. SEC. 792. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :















COPPERWELD CO. V. COMM'N, 324 U.S. 780 


NO. 684.  ARGUED APRIL 5, 6, 1945.  - DECIDED APRIL 23, 1945.  - 143
OHIO ST. 591, 56 N.E.2D 154, APPEAL DISMISSED - CERTIORARI DENIED. 


THE STATE COURT DECISION OF WHICH REVIEW IS HERE SOUGHT WAS GROUNDED
UPON THE VIEW THAT THE APPELLANT HAD NOT PURSUED THE REMEDY AFFORDED BY
STATE LAW FOR THE VINDICATION OF ANY CONSTITUTIONAL RIGHT CLAIMED TO
HAVE BEEN VIOLATED; SO THE APPEAL MUST BE DISMISSED AND CERTIORARI
DENIED.  P. 785. 

COPPERWELD STEEL CO. V. INDUSTRIAL COMMISSION OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

APPEAL FROM A JUDGMENT SUSTAINING A DEMURRER IN PROCEEDINGS
CHALLENGING THE VALIDITY OF AWARDS MADE TO EMPLOYEES OF THE APPELLANT
BY THE STATE COMMISSION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT CONDUCTS A MANUFACTURING PLANT AT WARREN, OHIO, AND IS
AN EMPLOYER AS THE TERM IS DEFINED BY THE WORKMEN'S COMPENSATION LAW OF
THE STATE.  IN AN ORIGINAL PROCEEDING INSTITUTED IN THE SUPREME COURT,
THE STATE'S HIGHEST TRIBUNAL, IT CHALLENGED AWARDS MADE TO CERTAIN OF
ITS EMPLOYEES, ALLEGING THAT THE INJURIES SUFFERED WERE NOT INCURRED IN
THE COURSE OF, AND DID NOT ARISE OUT OF, THE EMPLOYMENT; THAT THE
AWARDS WERE, THEREFORE, BEYOND THE JURISDICTION OF THE INDUSTRIAL
COMMISSION WHICH ENTERED THEM, AND, UNLESS THEY WERE ABROGATED, THE
APPELLANT WOULD BE DEPRIVED OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW;
FURTHER, THAT UNLESS RELIEF WERE AFFORDED THE APPELLANT WOULD BE DENIED
THE EQUAL PROTECTION OF THE LAWS. 

FROM A DECISION SUSTAINING A DEMURRER AND GRANTING JUDGMENT FOR THE
DEFENDANT  FN1  THIS APPEAL WAS TAKEN.  THE APPELLEE MOVED TO DISMISS. 
WE POSTPONED CONSIDERATION OF THE MOTION TO THE HEARING ON THE MERITS,
AS WE WERE NOT SATISFIED THAT THE APPELLANT HAD PROPERLY PRESENTED IN
THE COURT BELOW ANY ISSUE AS TO THE INFIRMITY OF THE STATE LAW UNDER
THE FEDERAL CONSTITUTION, OR THAT THE JUDGMENT OF THE SUPREME COURT OF
OHIO DID NOT REST ON AN APPLICATION OF STATE LAW ADEQUATE TO SUPPORT
IT. 

THE QUESTIONS POSED FOR OUR DECISION, THE MANNER OF THEIR
PRESENTATION TO THE STATE COURT AND THAT COURT'S DISPOSITION OF THEM
WILL BE UNDERSTOOD ONLY IN THE LIGHT OF THE PROVISIONS OF THE WORKMEN'S
COMPENSATION LAW, THE COMMISSION'S ACTION UNDER THAT LAW, AND THE
CHARACTER OF THE RELIEF SOUGHT BY THE APPELLANT. 

THE COMPENSATION LAW IS OF THE COMPULSORY TYPE.  FN2  IT IS
ADMINISTERED BY AN INDUSTRIAL COMMISSION, WHICH CLASSIFIES INDUSTRIES
IN RESPECT OF HAZARDS, AND FIXES PREMIUMS TO BE PAID BY EMPLOYERS INTO
A STATE FUND FOR THE BENEFIT OF INJURED WORKMEN AND THE DEPENDENTS OF
THOSE KILLED.  IT MAY ADOPT MERIT RATINGS WHICH REDUCE THE PREMIUMS OF
EMPLOYERS HAVING A LOW CASUALTY RATE. 

EVERY EMPLOYER SUBJECT TO THE ACT IS REQUIRED EITHER TO PAY PREMIUMS
INTO THE FUND OR TO QUALIFY AS A SELF-INSURER.  PAYMENTS OF
COMPENSATION FOR INJURY OR DEATH ARE MADE FROM THE STATE FUND IN
RESPECT OF EMPLOYEES OF A CONTRIBUTING EMPLOYER AND ARE PAID DIRECTLY
BY A SELF-INSURING EMPLOYER.  EMPLOYERS OF BOTH CLASSES ARE RELIEVED OF
COMMON-LAW LIABILITY FOR AN EMPLOYEE'S INJURY OR DEATH.  THOSE,
HOWEVER, WHO FAIL TO COMPLY IN ONE OF THE PERMISSIBLE WAYS REMAIN
LIABLE AT LAW, ARE DENIED CERTAIN DEFENSES IN AN ACTION BY THE EMPLOYEE
OR HIS REPRESENTATIVE AND, WITH THEIR OFFICERS, ARE LIABLE TO CRIMINAL
PENALTIES FOR FAILURE TO COMPLY WITH THE ACT.  THEIR EMPLOYEES MAY,
NEVERTHELESS, ELECT TO CLAIM COMPENSATION, AND IF IT IS AWARDED, AN
ACTION TO RECOVER THE AMOUNT MAY BE MAINTAINED AGAINST THE EMPLOYER. 
SUCH AN ACTION MAY ALSO BE MAINTAINED AGAINST A SELF-INSURING EMPLOYER
WHO FAILS TO PAY AN AWARD. 

SHOULD AN EMPLOYER WHO IS SUBJECT TO THE ACT FAIL TO PAY PREMIUMS, OR
OTHERWISE OMIT TO COMPLY, MEANS ARE PROVIDED TO FIX CIVIL LIABILITY
UPON HIM, EVEN TO THE EXTENT OF THE APPOINTMENT OF A RECEIVER OF HIS
BUSINESS. 

THE COMMISSION HAS AUTHORITY TO HEAR AND DECIDE ALL QUESTIONS WITHIN
ITS JURISDICTION.  IF IT MAKES AN AWARD TO A CLAIMANT ITS ACTION IS
FINAL.  NEITHER THE EMPLOYER NOR THE CLAIMANT IS GIVEN ANY APPEAL OR
RIGHT OF REVIEW.  IF THE COMMISSION REFUSES AN AWARD ON CERTAIN GROUNDS
SPECIFIED IN THE ACT THE CLAIMANT MAY APPEAL TO A COURT. 

IT IS CONCEDED BY THE APPELLEE THAT IF A SELF-INSURING OR A NON
COMPLYING EMPLOYER IS SUED FOR THE AMOUNT OF AN AWARD THE DEFENSE IS
OPEN TO HIM THAT THE EMPLOYEE GRANTED THE AWARD WAS NOT INJURED IN THE
COURSE OF HIS EMPLOYMENT OR THAT THE INJURY DID NOT ARISE OUT OF THE
EMPLOYMENT.  IN THE CASE OF A COMPLYING EMPLOYER WHO PAYS PREMIUMS INTO
THE STATE FUND NO SUCH DEFENSE IS OPEN, FOR THE AWARD IS PAID FROM THE
FUND AND HE IS NOT A PARTY TO THE TRANSACTION. 

WE TURN NOW TO THE FACTS ALLEGED IN APPELLANT'S PETITION.  SO FAR AS
MATERIAL THEY FOLLOW.  THE MEN WHO WERE INJURED OR KILLED WERE
EMPLOYEES IN APPELLANT'S PLANT.  AT THE CLOSE OF THEIR WORK THEY LEFT
THE PLANT IN AN AUTOMOBILE AND CHOSE ONE OF SEVERAL WAYS OF EGRESS - A
PUBLIC ROAD, WHICH AT A SHORT DISTANCE FROM THE PLANT CROSSED THE
BALTIMORE & OHIO RAILROAD'S TRACK.  WHILE CROSSING THIS TRACK THE
AUTOMOBILE WAS STRUCK BY A TRAIN.  THE COMMISSION, DESPITE APPELLANT'S
REPRESENTATION THAT THE RESULTING INJURIES AND DEATHS WERE NOT
COMPENSABLE UNDER THE ACT, ENTERED AWARDS.  BY ITS AMENDED PETITION THE
APPELLANT SHOWED THAT AS A RESULT OF THE INCLUSION OF THE AWARDS IN ITS
ACCIDENT EXPERIENCE ITS PREMIUMS HAD BEEN GREATLY INCREASED. 

ON THE FIRST HEARING THE SUPREME COURT OVERRULED APPELLANT'S
CONTENTION THAT SEC. 871-38 OF THE CODE AUTHORIZED THE INSTITUTION OF
PROCEEDINGS IN THAT COURT TO SET ASIDE COMPENSATION AWARDS.  TREATING
THE PETITION AS ONE FOR A WRIT OF PROHIBITION, THE COURT HELD THAT
REMEDY UNAVAILABLE TO CONTROL THE ACTION OF THE COMMISSION IN RENDERING
AWARDS.  IF CONSIDERED AS AN APPLICATION FOR MANDAMUS, THE COURT FOUND
THAT THE PROVISIONS OF THE WORKMEN'S COMPENSATION LAW PRECLUDED THE
ISSUANCE OF THE WRIT.  CONSTRUING THE PRAYER AS ONE FOR INJUNCTION, THE
COURT HELD THAT THE LAW OF OHIO INVESTED IT WITH NO ORIGINAL
JURISDICTION IN EQUITY, AND THAT GENERAL EQUITY JURISDICTION IS
CONFERRED ON THE COURTS OF COMMON PLEAS OF THE STATE.  THESE ARE ALL
RULINGS AS TO THE LAW OF OHIO, AND, AS SUCH, WE ARE WITHOUT POWER TO
REVIEW THEM. 

IN ITS AMENDED PETITION THE APPELLANT INSISTED THAT ITS PURPOSE WAS
TO RAISE QUESTIONS OF CONSTITUTIONALITY; AND THAT IT WAS WITHOUT REMEDY
AGAINST THE LOSS OF ITS MERIT RATING AND THE INCREASE OF ITS PREMIUMS
UNLESS THE COURT SHOULD SET ASIDE THE AWARDS. 

IN A SECOND OPINION THE COURT NOTICED THESE ALLEGATIONS.  IT HELD
THAT AS APPELLANT WAS NOT A PARTY TO THE COMPENSATION PROCEEDING AND AS
THE AWARDS WERE PAYABLE, NOT BY THE APPELLANT, BUT BY THE STATE FUND,
IN WHICH APPELLANT HAD NO PROPERTY INTEREST, IT COULD NOT BE SAID THAT
PAYMENT OF THE AWARDS DEPRIVED APPELLANT OF ANY PROPERTY.  IT SAID THAT
APPELLANT'S INTERESTS COULD BE AFFECTED ONLY WHEN IT WAS CALLED ON TO
PAY INCREASED PREMIUMS AS A RESULT OF THE AWARDS, AND ADVERTED TO THE
FACT THAT APPELLANT COULD REFUSE TO PAY PREMIUMS, AND DEFEND A SUIT FOR
THEM BROUGHT UNDER SEC. 1465-75 OF THE ACT.  AS TO THIS THE APPELLANT
URGES THAT THE PENALTIES, CIVIL AND CRIMINAL, WHICH WOULD BE IMPOSED
UPON IT AND ITS OFFICERS IF IT PURSUED SUCH A COURSE AMOUNT TO A DENIAL
OF ALL REMEDY.  OF THIS, MORE HEREAFTER. 

IN RESPECT TO THE DENIAL OF EQUAL PROTECTION, THE COURT BELOW SEEMS
NOT TO HAVE DEALT WITH THE ARGUMENT AS PRESENTED IN THIS COURT.  IT
QUOTED DECISIONS WHICH SUSTAINED AS REASONABLE CLASSIFICATIONS OF
EMPLOYERS FOR IMPOSITION OF VARYING RATES OF PREMIUM ADJUSTED TO THE
RISKS INCIDENT TO THEIR ENTERPRISES.  EXCEPT AS ABOVE NOTED, IT HAD
NOTHING TO SAY TO THE APPELLANT'S CONTENTION THAT WHEREAS SELF-INSURERS
AND NON-COMPLIERS MAY MAKE THE DEFENSE OF EXCESS OF THE COMMISSION'S
JURISDICTION WHEN SUED FOR THE AMOUNT OF AN AWARD, IT CANNOT ASSERT
SUCH A DEFENSE WHEN SUED FOR PREMIUMS.  IN OUR VIEW, THE ANSWER TO BOTH
OF THE CONSTITUTIONAL CONTENTIONS, THOUGH NOT CLEARLY EXPRESSED BELOW,
IS THAT IT DOES NOT APPEAR THE APPELLANT IS WITHOUT REMEDY, IF ENTITLED
TO REDRESS.  FOR IT IS STATED, WITHOUT CONTRADICTION, THAT THERE ARE
COURTS IN THE STATE HAVING GENERAL EQUITY JURISDICTION, AND IF RESORT
TO A DEFENSE AT LAW INVOLVES THE PERILS AND PENALTIES THE APPELLANT
ASSERTS, WE ARE NOT ADVISED THAT EQUITY WILL NOT CONSIDER AN
APPLICATION FOR RELIEF.  CERTAINLY WE CAN NEITHER REQUIRE THE SUPREME
COURT TO EXERCISE A JURISDICTION IT FINDS IS NOT CONFERRED UPON IT BY
LAW, NOR EXPRESS ANY VIEW AS TO THE RELIEF TO WHICH THE APPELLANT MAY
BE ENTITLED, IN ADVANCE OF ITS AVAILING ITSELF OF A FORUM APPARENTLY
NOT FORECLOSED TO IT FOR THE PROTECTION OF ITS ASSERTED CONSTITUTIONAL
RIGHTS. 

WHAT HAS BEEN SAID ASSUMES THAT WE HAVE JURISDICTION OF THE APPEAL. 
THE ASSUMPTION INVOLVES THE ANSWER TO TWO QUESTIONS.  FIRST, WERE
QUESTIONS UNDER THE FOURTEENTH AMENDMENT PRESENTED AND DECIDED BELOW? 
WE THINK THAT THE APPELLANT DISCLOSED, AND THE COURT BELOW UNDERSTOOD,
THAT THE PROVISIONS OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION WERE INVOKED.  NOT ONLY DOES THE OHIO CONSTITUTION EMBODY
NO PROVISIONS IN THE WORDS OF THAT ARTICLE BUT IT IS DOUBTFUL THAT IT
CONTAINS ANY EQUIVALENT PROVISIONS.  WHILE THE APPELLANT'S PETITION DID
NOT MENTION THE AMENDMENT, IT USED THE EXACT PHRASEOLOGY IN WHICH IT IS
COUCHED.  THE PLEADINGS AND THE EXPRESSIONS FOUND IN THE OPINIONS LEAD
US TO CONCLUDE THAT QUESTIONS UNDER THE FEDERAL CHARTER WERE PRESENTED
AND CONSIDERED. 

SECONDLY, WAS THE CONSTITUTIONAL VALIDITY OF THE STATE STATUTE DRAWN
IN QUESTION?  IF NOT, WE HAVE NO JURISDICTION ON APPEAL.  BUT, AS
VIOLATION OF THE FEDERAL CONSTITUTION BY THE DECISION OF THE STATE
COURT IS, IN ANY CASE, INVOLVED, WE HAVE JURISDICTION TO REVIEW THE
DECISION ON CERTIORARI (28 U.S.C. 344(C)).  THE QUESTION OF THE
PROPRIETY OF ENTERTAINING THE APPEAL NEED NOT BE DECIDED, IN THE VIEW
WE TAKE OF THE BASIS OF THE STATE COURT'S JUDGMENT.  INASMUCH AS WE
CONCLUDE THAT DECISION WAS GROUNDED UPON THE VIEW THAT THE APPELLANT
HAD NOT PURSUED THE REMEDY AFFORDED BY STATE LAW FOR THE VINDICATION OF
ANY CONSTITUTIONAL RIGHT IT CLAIMED WAS VIOLATED, WE MUST DISMISS THE
APPEAL AND DENY CERTIORARI.  SO ORDERED. 

FN1  THE PETITION WAS HELD DEMURRABLE (142 O.S. 439, 52 N.E.2D 735),
WAS AMENDED, DEMURRED TO, AND JUDGMENT FOR DEFENDANT WAS RENDERED ON
DEMURRER (143 O.S. 591, 56 N.E. 154). 

FN2 THE SUMMARY OF THE STATUTORY PROVISIONS IS DRAWN FROM THE GENERAL
CODE OF OHIO, SECS. 871-1-871-12; 871-38; 1465-37; 1465-53; 1465-54;
1465-60,-68,-69,-69A,-70,-72,-73,-74,-75,-90. 
..END :


















RICE V. OLSON, 324 U.S. 786 


NO. 391.  ARGUED FEBRUARY 1, 1945.  - DECIDED APRIL 23, 1945.  - 144
NEB. 547, 14 N.W.2D 850, REVERSED. 


PETITIONER, AN INDIAN UNDER A STATE COURT SENTENCE OF IMPRISONMENT FOR
ONE TO SEVEN YEARS UPON HIS PLEA OF GUILTY TO A CHARGE OF BURGLARY,
PETITIONED A STATE COURT FOR A WRIT OF HABEAS CORPUS, ALLEGING THAT HE
HAD BEEN DEPRIVED OF DUE PROCESS OF LAW IN THAT THE TRIAL COURT FAILED
TO ADVISE HIM OF HIS CONSTITUTIONAL RIGHTS TO COUNSEL AND TO CALL
WITNESSES; THAT HE HAD NOT WAIVED THOSE RIGHTS BY WORD OR ACTION; AND
THAT THE CONVICTION WAS VOID BECAUSE THE ALLEGED CRIME WAS COMMITTED ON
AN INDIAN RESERVATION WHICH WAS WITHIN EXCLUSIVE FEDERAL JURISDICTION. 
HELD: 

1.  THE ALLEGATIONS OF THE PETITION SHOWED A PRIMA FACIE VIOLATION OF
PETITIONER'S RIGHT TO COUNSEL, AND HE WAS ENTITLED TO A HEARING UPON
THEM.  PP. 788, 791. 

2.  BY HIS PLEA OF GUILTY, PETITIONER HAD NOT WAIVED HIS
CONSTITUTIONAL RIGHT TO COUNSEL.  P. 788. 

3.  THE STATE COURT HAVING PLACED ITS JUDGMENT OF DISMISSAL SQUARELY
ON THE ABSENCE OF MERIT IN THE PETITION, THIS COURT CAN NOT CONCLUDE
THAT THE PETITION FAILED TO SATISFY PROCEDURAL REQUIREMENTS.  P. 792. 

RICE V. OLSON, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

CERTIORARI, 323 U.S. 696, TO REVIEW A JUDGMENT AFFIRMING THE
DISMISSAL OF A PETITION FOR A WRIT OF HABEAS CORPUS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AN INDIAN, WITHOUT BENEFIT OF COUNSEL PLEADED GUILTY TO A
CHARGE OF BURGLARY IN THE DISTRICT COURT OF THURSTON COUNTY, NEBRASKA,
AND WAS SENTENCED TO FROM ONE TO SEVEN YEARS.  HE PETITIONED ANOTHER
STATE DISTRICT COURT FOR A WRIT OF HABEAS CORPUS SEEKING RELEASE FROM
THE PENITENTIARY ON THE GROUNDS, AMONG OTHERS,  FN1  THAT HE HAD BEEN
DEPRIVED OF HIS CONSTITUTIONAL RIGHT OF COUNSEL, AND THAT THE STATE
COURT LACKED JURISDICTION.  HE ALLEGED THAT HE WAS IGNORANT OF THE LAW,
AND THAT IN PREPARING HIS PETITION HE HAD NO ONE TO HELP HIM EXCEPT A
FELLOW INMATE.  PETITIONER DID NOT CHALLENGE THE FACTS STATED IN THE
JUDGMENT ENTRY, I.E., THAT, IN THE BURGLARY PROCEEDINGS, HE WAS
ARRAIGNED AND PLEADED GUILTY, THAT THE BURGLARY STATUTE WAS READ TO
HIM, AND THAT HE THEN REITERATED HIS PLEA.  HE CHALLENGED THE VALIDITY
OF THE JUDGMENT, HOWEVER, ON THE GROUND THAT, IN VIOLATION OF THE
FOURTEENTH AMENDMENT, HE HAD BEEN DEPRIVED OF DUE PROCESS OF LAW IN
THAT THE TRIAL COURT FAILED TO ADVISE HIM OF HIS CONSTITUTIONAL RIGHTS
TO COUNSEL AND TO CALL WITNESSES.  PETITIONER FURTHER ALLEGED THAT HE
HAD NOT WAIVED THOSE RIGHTS BY WORD OR ACTION.  FINALLY, THE PETITION
ALLEGED THAT THE CONVICTION WAS VOID BECAUSE THE ALLEGED CRIME WAS
COMMITTED ON AN INDIAN RESERVATION WHICH WAS EXCLUSIVELY WITHIN FEDERAL
JURISDICTION. 

THE PETITION WAS DISMISSED BY THE STATE DISTRICT COURT, FOR LACK OF
MERIT, WITHOUT AN ANSWER, AND WITHOUT A HEARING.  PETITIONER THEN MOVED
TO SET ASIDE THE DISMISSAL, REPEATING HIS ALLEGATIONS, AND REQUESTING
THE APPOINTMENT OF COUNSEL TO ASSIST HIM.  THE MOTION WAS DENIED, AND
PETITIONER, AGAIN ACTING IN HIS OWN BEHALF, APPEALED TO THE SUPREME
COURT OF NEBRASKA.  THAT COURT, WITHOUT REQUIRING AN ANSWER, AFFIRMED
THE DISTRICT COURT.  144 NEB. 547, 14 N.W.2D 850.  BECAUSE IMPORTANT
CONSTITUTIONAL RIGHTS ARE INVOLVED, WE GRANTED CERTIORARI AND APPOINTED
COUNSEL TO REPRESENT PETITIONER.  323 U.S. 696. 

IN AFFIRMING, THE NEBRASKA SUPREME COURT STATED THAT "'IT IS NOT
NECESSARY THAT THERE BE A FORMAL WAIVER; AND A WAIVER WILL ORDINARILY
BE IMPLIED WHERE ACCUSED APPEARS WITHOUT COUNSEL AND FAILS TO REQUEST
THAT COUNSEL BE ASSIGNED TO HIM, PARTICULARLY WHERE ACCUSED VOLUNTARILY
PLEADS GUILTY.'"  IT IS APPARENT THAT THE COURT'S AFFIRMANCE DID NOT
REST ON ITS STATEMENT THAT A PLEA OF GUILTY "ORDINARILY IMPLIED" A
WAIVER OF THE RIGHT TO COUNSEL, BUT UPON A HOLDING THAT SUCH A PLEA
"ABSOLUTELY" AND FINALLY WAIVES THAT RIGHT.  FN2  THIS IS INCONSISTENT
WITH OUR INTERPRETATION OF THE SCOPE OF THE FOURTEENTH AMENDMENT. 

WHATEVER INFERENCE OF WAIVER COULD BE DRAWN FROM THE PETITIONER'S
PLEA OF GUILTY IS ADEQUATELY ANSWERED BY THE UNCONTROVERTED STATEMENT
IN HIS PETITION THAT HE DID NOT WAIVE THE RIGHT EITHER BY WORD OR
ACTION.  THIS DENIAL OF WAIVER SQUARELY RAISED A QUESTION OF FACT.  THE
STATE SUPREME COURT RESOLVED THIS DISPUTED FACT BY DRAWING A CONCLUSIVE
IMPLICATION FROM THE PETITIONER'S PLEA OF GUILTY.  THIS IS THE
EQUIVALENT OF A HOLDING THAT ONE WHO VOLUNTARILY PLEADS GUILTY WITHOUT
THE BENEFIT OF COUNSEL HAS THEREBY COMPETENTLY WAIVED HIS
CONSTITUTIONAL RIGHT TO COUNSEL, EVEN THOUGH HE MAY HAVE SORELY NEEDED
AND BEEN UNABLE TO OBTAIN LEGAL AID.  A DEFENDANT WHO PLEADS GUILTY IS
ENTITLED TO THE BENEFIT OF COUNSEL, AND A REQUEST FOR COUNSEL IS NOT
NECESSARY.  IT IS ENOUGH THAT A DEFENDANT CHARGED WITH AN OFFENSE OF
THIS CHARACTER IS INCAPABLE ADEQUATELY OF MAKING HIS DEFENSE, THAT HE
IS UNABLE TO GET COUNSEL, AND THAT HE DOES NOT INTELLIGENTLY AND
UNDERSTANDINGLY WAIVE COUNSEL.  FN3  WHETHER ALL THESE CONDITIONS EXIST
IS A MATTER WHICH MUST BE DETERMINED BY EVIDENCE WHERE THE FACTS ARE IN
DISPUTE. 

THE PETITIONER'S NEED FOR LEGAL COUNSEL IN THIS CASE IS STRIKINGLY
EMPHASIZED BY THE ALLEGATION IN HIS HABEAS CORPUS PETITION THAT THE
OFFENSE FOR WHICH THE STATE COURT CONVICTED HIM WAS COMMITTED ON A
GOVERNMENT INDIAN RESERVATION "WITHOUT AND BEYOND THE JURISDICTION OF
THE COURT."  THIS RAISES AN INVOLVED QUESTION OF FEDERAL JURISDICTION,
POSING A PROBLEM THAT IS OBVIOUSLY BEYOND THE CAPACITY OF EVEN AN
INTELLIGENT AND EDUCATED LAYMAN, AND WHICH CLEARLY DEMANDS THE COUNSEL
OF EXPERIENCE AND SKILL. 

THE POLICY OF LEAVING INDIANS FREE FROM STATE JURISDICTION AND
CONTROL IS DEEPLY ROOTED IN THE NATION'S HISTORY.  SEE WORCESTER V.
GEORGIA, 6 PET. 515; 1 STAT. 469; 4 STAT. 729.  IN THE LIGHT OF THIS
HISTORICAL BACKGROUND CONGRESS IN 1885 PASSED A COMPREHENSIVE ACT, 23
STAT. 362, 385, IN ORDER TO FULFILL "TREATY STIPULATIONS WITH VARIOUS
INDIAN TRIBES," SPECIFICALLY INCLUDING THE WINNEBAGOES, OF WHICH TRIBE
THE PETITIONER ALLEGES HE IS A MEMBER.  THE LAST SECTION OF THAT ACT
SUBJECTS INDIANS WHO COMMIT CERTAIN CRIMES, INCLUDING BURGLARY, TO
TRIAL AND PUNISHMENT.  THE LANGUAGE THERE USED TO ACCOMPLISH THIS
PURPOSE IS THAT "ALL SUCH INDIANS COMMITTING ANY OF THE ABOVE CRIMES
AGAINST THE PERSON OR PROPERTY OF ANOTHER INDIAN OR OTHER PERSON WITHIN
THE BOUNDARIES OF ANY STATE OF THE UNITED STATES, AND WITHIN THE LIMITS
OF ANY INDIAN RESERVATION, SHALL BE SUBJECT TO THE SAME LAWS, TRIED IN
THE SAME COURTS AND IN THE SAME MANNER, AND SUBJECT TO THE SAME
PENALTIES AS ARE ALL OTHER PERSONS COMMITTING ANY OF THE ABOVE CRIMES
WITHIN THE EXCLUSIVE JURISDICTION OF THE UNITED STATES."  23 STAT.
385.  THIS SECTION NOW APPEARS AS SEC. 548 IN TITLE 18 OF THE U.S.C.
AND THE STATE SUPREME COURT HAS RULED THAT IT GIVES NEBRASKA AUTHORITY
TO TRY THE PETITIONER.  THIS CONSTRUCTION OF THE SECTION IS NOT IN
ACCORD WITH THAT HERETOFORE GIVEN IT BY THE COURTS OF NEBRASKA AND
OTHER COURTS.  FN4  IN ARGUMENT BEFORE US, NEBRASKA DOES NOT RELY ON
THE STATE SUPREME COURT'S CONSTRUCTION OF 18 U.S.C. 548.  INSTEAD IT
ARGUES THAT PETITIONER'S ALLEGATION THAT THE CRIME WAS COMMITTED ON AN
INDIAN RESERVATION IS FALSE, AND THAT THE STATE SUPREME COURT WAS
REQUIRED TO TAKE JUDICIAL KNOWLEDGE OF ITS FALSITY.  IT ADMITS,
HOWEVER, THAT THURSTON COUNTY, WHERE THE BURGLARY WAS ALLEGEDLY
COMMITTED, IS INCLUDED WITHIN THE ORIGINAL STATUTORY BOUNDARIES OF A
FEDERALLY CREATED INDIAN RESERVATION, 14 STAT. 667, 14 STAT. 671, AND
THAT THE VILLAGE OF WINNEBAGO, WHERE THE ALLEGED OFFENSE WAS COMMITTED,
IS LOCATED WITHIN THE BOUNDARIES OF THE WINNEBAGO RESERVATION.  THE
VILLAGE OF WINNEBAGO, IT INSISTS, HAS CEASED TO BE A PART OF THE
RESERVATION BECAUSE ALL THE INDIANS HAVE BEEN GIVEN THE FULL BENEFITS
OF CITIZENSHIP BY NEBRASKA AND BECAUSE WINNEBAGO IS INCORPORATED UNDER
THE LAWS OF NEBRASKA AND IS LOCATED ENTIRELY UPON LAND WHICH HAS BEEN
PATENTED IN FEE.  THE FACTS UPON WHICH THIS CONTENTION RESTS ARE SAID
TO BE THOSE OF WHICH NEBRASKA COURTS CAN TAKE JUDICIAL KNOWLEDGE.  WITH
THESE FACTS THUS ESTABLISHED, IT IS SAID THAT JURISDICTION OF NEBRASKA
OVER THIS OFFENSE IS CONFERRED BY SEC. 6 OF THE GENERAL ALLOTMENT ACT
PASSED IN 1887, 24 STAT. 390, AS AMENDED, 34 STAT. 182.  ASSUMING THAT
ALL THE FACTS URGED BY THE STATE ARE CORRECT, AND THAT THESE INDIAN
LANDS HAVE BEEN DISPOSED OF UNDER THIS LATTER STATUTE, THE STATE FINDS
SUPPORT FOR ITS CONTENTION IN THIS COURT'S INTERPRETATION OF THAT ACT
IN MATTER OF HEFF, 197 U.S. 488.  BUT LATER CASES HAVE CAST
CONSIDERABLE DOUBT ON WHAT WAS SAID IN THE HEFF DECISION.  UNITED
STATES V. CELESTINE, 215 U.S. 278, 290-291; HALLOWELL V. UNITED STATES,
221 U.S. 317, 323; TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286, 314;
DONNELLY V. UNITED STATES, 228 U.S. 243, 269-272; UNITED STATES V.
CHAVEZ, 290 U.S. 357; UNITED STATES V. MCGOWAN, 302 U.S. 535, 539. 

ALL OF THESE QUESTIONS CONCERNING THE POWER OF THE STATE COURTS TO
TRY THIS INDIAN PETITIONER FOR BURGLARY INDICATE THE COMPLEXITIES OF
THE PROBLEM HE WOULD HAVE FOUND HAD HE ATTEMPTED TO DEFEND HIMSELF ON
THIS GROUND.  AND A DECISION BY THE STATE COURT THAT IT HAD
JURISDICTION MIGHT OR MIGHT NOT HAVE FINALLY DETERMINED THE ISSUE.  CF.
TOY TOY V. HOPKINS, 212 U.S. 542, 549, AND BOWEN V. JOHNSTON, 306 U.S.
19. 

WE CONCLUDE THAT THE PETITIONER IS ENTITLED TO A HEARING ON HIS
ALLEGATIONS THAT HE DID NOT, IN THE BURGLARY PROCEEDINGS, WAIVE HIS
CONSTITUTIONAL RIGHT TO HAVE THE BENEFIT OF COUNSEL. 

IT HAS BEEN SUGGESTED THAT EVEN IF THE COURT BELOW ERRED IN HOLDING
THAT A PLEA OF GUILTY IS A CONCLUSIVE WAIVER OF THE RIGHT TO COUNSEL,
ITS JUDGMENT MIGHT BE SUSTAINED ON THE GROUND THAT HABEAS CORPUS WAS
NOT THE PROPER REMEDY, OR BECAUSE THE ALLEGATIONS OF THE PETITION LACK
SUFFICIENT DEFINITENESS.  THE VERY FACT THAT THE COURT CONSIDERED THE
PETITION ON ITS MERITS GIVES RISE TO A STRONG, IF NOT CONCLUSIVE,
INFERENCE THAT THE PETITION SATISFIED THE STATE'S PROCEDURAL
REQUIREMENTS IN ALL RESPECTS.  BY TREATING THIS CLUMSILY DRAWN PETITION
WITH LIBERALITY, INSTEAD OF DISMISSING IT BECAUSE OF A FAILURE TO
COMPLY WITH THE PRECISE NICETIES OF TECHNICAL PROCEDURE, THE STATE
SUPREME COURT ACTED IN ACCORDANCE WITH ITS TRADITIONAL SOLICITUDE FOR
THE WRIT.  FN5 AND THIS TREATMENT IS IN LINE WITH FEDERAL PRACTICE.  "A
PETITION FOR HABEAS CORPUS OUGHT NOT TO BE SCRUTINIZED WITH TECHNICAL
NICETY.  EVEN IF IT IS INSUFFICIENT IN SUBSTANCE IT MAY BE AMENDED IN
THE INTEREST OF JUSTICE."  HOLIDAY V. JOHNSTON, 313 U.S. 342, 350,
351.  FN6 

SINCE THE STATE COURT PLACED ITS JUDGMENT PRECISELY ON THE ABSENCE OF
MERIT IN THE PETITION, WE COULD NOT, EXCEPT BY SPECULATION, CONCLUDE
THAT THE PETITION FAILED TO MEASURE UP TO ITS PROCEDURAL REQUIREMENTS. 
FN7  FOR THE REASONS GIVEN, WE HOLD THAT THE ALLEGATIONS OF THE
PETITION SHOWED A PRIMA FACIE VIOLATION OF THE PETITIONER'S RIGHT TO
COUNSEL.  REVERSED. 

FN1  ALLEGATIONS OF THE PETITION CHARGING THAT THE PETITIONER'S
IMPRISONMENT WAS ILLEGAL UNDER STATE LAWS NEED NOT BE SET OUT, SINCE
THOSE QUESTIONS HAVE BEEN FINALLY ADJUDICATED BY THE STATE SUPREME
COURT AND ARE NOT SUBJECT TO REVIEW HERE.  SMITH V. O'GRADY, 312 U.S.
329, 330. 

FN2  IN DISCUSSING ALLEGATIONS OF THE PETITION OTHER THAN THE ONE
RELATING TO APPOINTMENT OF COUNSEL, THE STATE SUPREME COURT ALSO QUOTED
WITH APPROVAL A STATEMENT THAT "A PLEA OF GUILTY ADMITS ALL FACTS
SUFFICIENTLY PLEADED, ...  OPERATES AS A WAIVER OF ANY DEFENSE, AND
...  WITH IT, OF COURSE, THE CONSTITUTIONAL GUARANTEES WITH RESPECT TO
THE CONDUCT OF CRIMINAL PROSECUTIONS."  THE COURT THEREFORE SAID THAT
SINCE THE RECORD AFFIRMATIVELY SHOWED "THAT THE DEFENDANT HAD PLEADED
GUILTY, THIS ABSOLUTELY WAIVED THIS AND ALL OTHER PRELIMINARY STEPS IN
CONNECTION THEREWITH  ..." 

FN3  WILLIAMS V. KAISER, 323 U.S. 471; TOMKINS V. MISSOURI, 323 U.S.
485; HOUSE V. MAYO, 324 U.S. 42. 

FN4  EX PARTE CROSS, 20 NEB. 417, 30 N.W. 428, CF. KITTO V. STATE, 98
NEB. 164, 152 N.W. 380; STATE V. CAMPBELL, 53 MINN. 354, 55 N.W. 553;
PEOPLE V. DALY, 212 N.Y. 183, 105 N.E. 1048; UNITED STATES V. KAGAMA,
118 U.S. 375. 

FN5  "IT MUST BE CONCEDED THAT THE PETITION IS NOT A SKILLFULLY DRAWN
PLEADING, BUT AS IT WAS NOT ATTACKED IN THE DISTRICT COURT IT MUST
RECEIVE A LIBERAL CONSTRUCTION HERE  ...  CROCKER MADE NO APPEARANCE IN
THE CASE, AND THE WARRANT WAS NOT SET OUT IN ANY OF THE PLEADINGS. 
WHEN ATTACKED AFTER JUDGMENT, THE PETITION, THOUGH INFORMAL, MUST BE
HELD SUFFICIENT."  URBAN V. BRAILEY, 85 NEB. 796, 798-99, 124 N.W.
467.  "IT HAS BEEN HELD THAT THE PROPER METHOD OF ATTACKING THE
PETITION IS BY MOTION TO QUASH THE WRIT, AND THAT INSUFFICIENCY IN THE
PETITION IS WAIVED UNLESS THAT REMEDY BE RESORTED TO.  (MCGLENNAN V.
MARGOWSKI, 90 IND. 150.)"  NEBRASKA CHILDREN'S HOME SOCIETY V. STATE,
57 NEB. 765, 769, 78 N.W. 267.  SEE ALSO CHASE V. STATE, 93 FLA. 963,
113 SO. 103; STATE EX REL. CHASE V. CALVIRD, 324 MO. 429, 24 S.W.2D
111; STUART V. STATE, 36 ARIZ. 28, 282 P. 276; STATE EX REL. DAVIS V.
HARDIE, 108 FLA. 133, 146 SO. 97; EX PARTE TIPTON, 83 CAL. APP. 742,
257 P. 445; DEAVER V. STATE, 24 ALA. APP. 377, 135 SO. 604; MCDOWELL V.
GOULD, 166 GA. 670, 144 S.E. 206; EX PARTE TOLLISON, 73 OKL. CR. 38,
117 P.2D 549; PEOPLE V. SUPERIOR COURT, 234 ILL. 186, 84 N.E. 875;
WILLIS V. BAYLES, 105 IND. 363, 5 N.E. 8. 

FN6  SEE ALSO COCHRAN V. KANSAS, 316 U.S. 255; BOWEN V. JOHNSTON, 306
U.S. 19. 

FN7  SEE SMITH V. O'GRADY, SUPRA; CF. UNITED STATES V. JU TOY, 198
U.S. 253, 261. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

IN VIEW OF THE CIRCUMSTANCES REVEALED BY THE RECORD IN THIS CASE AND
IN THE LIGHT OF NEBRASKA'S EXPERIENCE WITH PETITIONS FOR HABEAS CORPUS,
AS LAID BEFORE THIS COURT BY THE ATTORNEY GENERAL OF NEBRASKA, THE
MEAGER ALLEGATIONS OF THIS PETITION FOR HABEAS CORPUS SHOULD PRECLUDE
OUR ATTRIBUTING TO THE SUPREME COURT OF NEBRASKA A DISREGARD, IN
AFFIRMING A DENIAL OF THE PETITION, OF RIGHTS UNDER THE CONSTITUTION OF
THE UNITED STATES RATHER THAN A DENIAL ON ALLOWABLE STATE GROUNDS. 
ACCORDINGLY, I BELIEVE THE JUDGMENT SHOULD BE AFFIRMED. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON JOIN IN THIS VIEW. 
..END :






















REPUBLIC AVIATION CORP. V. BOARD, 324 U.S. 793 


ARGUED JANUARY 10, 1945.  - DECIDED APRIL 23, 1945.  - 142 F.2D 193,
AFFIRMED.  - 143 F.2D 67, REVERSED. 


1.  THE NATIONAL LABOR RELATIONS BOARD WAS WARRANTED IN THESE CASES IN
FINDING UNFAIR LABOR PRACTICES, VIOLATIVE OF SEC. 8 OF THE NATIONAL
LABOR RELATIONS ACT, IN THE EMPLOYER'S (1) ENFORCEMENT OF A
"NOSOLICITATION" RULE AGAINST THE SOLICITATION OF UNION MEMBERSHIP BY
EMPLOYEES ON COMPANY PROPERTY DURING LUNCH HOUR; (2) DISCHARGE OF
EMPLOYEES FOR WEARING UNION "SHOP STEWARD" BUTTONS IN THE PLANT THOUGH
AT A TIME WHEN A MAJORITY OF THE EMPLOYEES HAD NOT DESIGNATED ANY
COLLECTIVE BARGAINING REPRESENTATIVE; AND (3) ENFORCEMENT OF A GENERAL
"NO-DISTRIBUTION" RULE AGAINST DISTRIBUTION OF UNION LITERATURE OR
CIRCULARS BY EMPLOYEES ON THEIR OWN TIME THOUGH ON PARKING LOTS OWNED
BY THE COMPANY AND ADJACENT TO THE PLANT.  PP. 795, 803. 

2.  AS AN ADMINISTRATIVE AGENCY WITH POWER AFTER HEARINGS TO
DETERMINE ON THE EVIDENCE IN ADVERSARY PROCEEDINGS WHETHER VIOLATIONS
OF STATUTORY COMMANDS HAVE OCCURRED, THE LABOR BOARD, WITHIN THE LIMITS
OF ITS INQUIRY, MAY INFER FROM PROVEN FACTS SUCH CONCLUSIONS AS
REASONABLY MAY BE BASED ON THE FACTS PROVEN.  P. 800. 

3.  IT WAS REASONABLE FOR THE LABOR BOARD TO ADOPT A PRESUMPTION OF
INVALIDITY OF A COMPANY RULE FORBIDDING UNION SOLICITATION BY EMPLOYEES
ON COMPANY PROPERTY OUTSIDE OF WORKING HOURS, IN THE ABSENCE OF
EVIDENCE THAT SPECIAL CIRCUMSTANCES MAKE THE RULE NECESSARY IN ORDER TO
MAINTAIN PRODUCTION OR DISCIPLINE.  P. 803. 

4.  THE DISCHARGE OF AN EMPLOYEE FOR VIOLATION OF A COMPANY RULE
AGAINST SOLICITATION, WHICH RULE WAS INVALID AS APPLIED TO THE UNION
SOLICITATION IN WHICH THE EMPLOYEE ENGAGED ON HIS OWN TIME, WAS
DISCRIMINATORY WITHIN THE MEANING OF SEC. 8(3) OF THE ACT IN THAT IT
DISCOURAGED MEMBERSHIP IN A LABOR UNION, NOTWITHSTANDING THAT THE RULE
WAS ENFORCED IMPARTIALLY AGAINST ALL SOLICITORS.  P. 805. 

REPUBLIC AVIATION CORP. V. NATIONAL LABOR RELATIONS BOARD. 

NO. 226.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT* . 

*TOGETHER WITH NO. 452, NATIONAL LABOR RELATIONS BOARD V. LE TOURNEAU
COMPANY OF GEORGIA, ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE FIFTH CIRCUIT. 

CERTIORARI, 323 U.S. 688, 698, TO REVIEW, IN NO. 226, A DECREE
GRANTING ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD;
AND, IN NO. 452, A JUDGMENT SETTING ASIDE AN ORDER OF THE BOARD. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

IN THE REPUBLIC AVIATION CORPORATION CASE, THE EMPLOYER, A LARGE AND
RAPIDLY GROWING MILITARY AIRCRAFT MANUFACTURER, ADOPTED, WELL BEFORE
ANY UNION ACTIVITY AT THE PLANT, A GENERAL RULE AGAINST SOLICITING
WHICH READ AS FOLLOWS: 

"SOLICITING OF ANY TYPE CANNOT BE PERMITTED IN THE FACTORY OR
OFFICES."  THE REPUBLIC PLANT WAS LOCATED IN A BUILT-UP SECTION OF
SUFFOLK COUNTY, NEW YORK.  AN EMPLOYEE PERSISTED AFTER BEING WARNED OF
THE RULE IN SOLICITING UNION MEMBERSHIP IN THE PLANT BY PASSING OUT
APPLICATION CARDS TO EMPLOYEES ON HIS OWN TIME DURING LUNCH PERIODS. 
THE EMPLOYEE WAS DISCHARGED FOR INFRACTION OF THE RULE AND, AS THE
NATIONAL LABOR RELATIONS BOARD FOUND, WITHOUT DISCRIMINATION ON THE
PART OF THE EMPLOYER TOWARD UNION ACTIVITY. 

THREE OTHER EMPLOYEES WERE DISCHARGED FOR WEARING UAW-CIO UNION
STEWARD BUTTONS IN THE PLANT AFTER BEING REQUESTED TO REMOVE THE
INSIGNIA.  THE UNION WAS AT THAT TIME ACTIVE IN SEEKING TO ORGANIZE THE
PLANT.  THE REASON WHICH THE EMPLOYER GAVE FOR THE REQUEST WAS THAT, AS
THE UNION WAS NOT THEN THE DULY DESIGNATED REPRESENTATIVE OF THE
EMPLOYEES, THE WEARING OF THE STEWARD BUTTONS IN THE PLANT INDICATED AN
ACKNOWLEDGMENT BY THE MANAGEMENT OF THE AUTHORITY OF THE STEWARDS TO
REPRESENT THE EMPLOYEES IN DEALING WITH THE MANAGEMENT AND MIGHT
IMPINGE UPON THE EMPLOYER'S POLICY OF STRICT NEUTRALITY IN UNION
MATTERS AND MIGHT INTERFERE WITH THE EXISTING GRIEVANCE SYSTEM OF THE
CORPORATION. 

THE BOARD WAS OF THE VIEW THAT WEARING UNION STEWARD BUTTONS BY
EMPLOYEES DID NOT CARRY ANY IMPLICATION OF RECOGNITION OF THAT UNION BY
THE EMPLOYER WHERE, AS HERE, THERE WAS NO COMPETING LABOR ORGANIZATION
IN THE PLANT.  THE DISCHARGES OF THE STEWARDS, HOWEVER, WERE FOUND NOT
TO BE MOTIVATED BY OPPOSITION TO THE PARTICULAR UNION OR, WE DEDUCE, TO
UNIONISM. 

THE BOARD DETERMINED THAT THE PROMULGATION AND ENFORCEMENT OF THE "NO
SOLICITATION" RULE VIOLATED SEC. 8(1) OF THE NATIONAL LABOR RELATIONS
ACT AS IT INTERFERED WITH, RESTRAINED AND COERCED EMPLOYEES IN THEIR
RIGHTS UNDER SEC. 7 AND DISCRIMINATED AGAINST THE DISCHARGED EMPLOYEE
UNDER SEC. 8(3).  FN1  IT DETERMINED ALSO THAT THE DISCHARGE OF THE
STEWARDS VIOLATED SEC. 8(1) AND 8(3).  AS A CONSEQUENCE OF ITS
CONCLUSIONS AS TO THE SOLICITATION AND THE WEARING OF THE INSIGNIA, THE
BOARD ENTERED THE USUAL CEASE AND DESIST ORDER AND DIRECTED THE
REINSTATEMENT OF THE DISCHARGED EMPLOYEES WITH BACK PAY AND ALSO THE
RESCISSION OF "THE RULE AGAINST SOLICITATION IN SO FAR AS IT PROHIBITS
UNION ACTIVITY AND SOLICITATION ON COMPANY PROPERTY DURING THE
EMPLOYEES' OWN TIME."  51 N.L.R.B. 1186, 1189.  THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT AFFIRMED, 142 F.2D 193, AND WE GRANTED
CERTIORARI, 323 U.S. 688, BECAUSE OF CONFLICT WITH THE DECISIONS OF
OTHER CIRCUITS.  FN2 

IN THE CASE OF LE TOURNEAU COMPANY OF GEORGIA, TWO EMPLOYEES WERE
SUSPENDED TWO DAYS EACH FOR DISTRIBUTING UNION LITERATURE OR CIRCULARS
ON THE EMPLOYEES' OWN TIME ON COMPANY OWNED AND POLICED PARKING LOTS,
ADJACENT TO THE COMPANY'S FENCED-IN PLANT, IN VIOLATION OF A LONG
STANDING AND STRICTLY ENFORCED RULE, ADOPTED PRIOR TO UNION
ORGANIZATION ACTIVITY ABOUT THE PREMISES, WHICH READ AS FOLLOWS:  "IN
THE FUTURE NO MERCHANTS, CONCERN, COMPANY, OR INDIVIDUAL OR INDIVIDUALS
WILL BE PERMITTED TO DISTRIBUTE, POST, OR OTHERWISE CIRCULATE HANDBILLS
OR POSTERS, OR ANY LITERATURE OF ANY DESCRIPTION, ON COMPANY PROPERTY
WITHOUT FIRST SECURING PERMISSION FROM THE PERSONNEL DEPARTMENT." 

THE RULE WAS ADOPTED TO CONTROL LITTERING AND PETTY PILFERING FROM
PARKED AUTOS BY DISTRIBUTORS.  THE BOARD DETERMINED THAT THERE WAS NO
UNION BIAS OR DISCRIMINATION BY THE COMPANY IN ENFORCING THE RULE. 

THE COMPANY'S PLANT FOR THE MANUFACTURE OF EARTHMOVING MACHINERY AND
OTHER PRODUCTS FOR THE WAR IS IN THE COUNTRY ON A SIX THOUSAND ACRE
TRACT.  THE PLANT IS BISECTED BY ONE PUBLIC ROAD AND BUILT ALONG
ANOTHER.  THERE IS ONE HUNDRED FEET OF COMPANY-OWNED LAND FOR PARKING
OR OTHER USE BETWEEN THE HIGHWAYS AND THE EMPLOYEE ENTRANCES TO THE
FENCED ENCLOSURES WHERE THE WORK IS DONE, SO THAT CONTACT ON PUBLIC
WAYS OR ON NON-COMPANY PROPERTY WITH EMPLOYEES AT OR ABOUT THE
ESTABLISHMENT IS LIMITED TO THOSE EMPLOYEES, LESS THAN 800 OUT OF 2100,
WHO ARE LIKELY TO WALK ACROSS THE PUBLIC HIGHWAY NEAR THE PLANT ON
THEIR WAY TO WORK, OR TO THOSE EMPLOYEES WHO WILL STOP THEIR PRIVATE
AUTOMOBILES, BUSES OR OTHER CONVEYANCES ON THE PUBLIC ROADS FOR
COMMUNICATIONS.  THE EMPLOYEES' DWELLINGS ARE WIDELY SCATTERED. 

THE BOARD FOUND THAT THE APPLICATION OF THE RULE TO THE DISTRIBUTION
OF UNION LITERATURE BY THE EMPLOYEES ON COMPANY PROPERTY WHICH RESULTED
IN THE LAY-OFFS WAS AN UNFAIR LABOR PRACTICE UNDER SEC. 8(1) AND 8(3). 
CEASE AND DESIST, AND RULE RESCISSION ORDERS, WITH DIRECTIONS TO PAY
THE EMPLOYEES FOR THEIR LOST TIME, FOLLOWED.  54 N.L.R.B. 1253.  THE
CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED THE BOARD, 143
F.2D 67, AND WE GRANTED CERTIORARI BECAUSE OF CONFLICT WITH THE
REPUBLIC CASE.  323 U.S. 698. 

THESE CASES BRING HERE FOR REVIEW THE ACTION OF THE NATIONAL LABOR
RELATIONS BOARD IN WORKING OUT AN ADJUSTMENT BETWEEN THE UNDISPUTED
RIGHT OF SELF-ORGANIZATION ASSURED TO EMPLOYEES UNDER THE WAGNER ACT
AND THE EQUALLY UNDISPUTED RIGHT OF EMPLOYERS TO MAINTAIN DISCIPLINE IN
THEIR ESTABLISHMENTS.  LIKE SO MANY OTHERS, THESE RIGHTS ARE NOT
UNLIMITED IN THE SENSE THAT THEY CAN BE EXERCISED WITHOUT REGARD TO ANY
DUTY WHICH THE EXISTENCE OF RIGHTS IN OTHERS MAY PLACE UPON EMPLOYER OR
EMPLOYEE.  OPPORTUNITY TO ORGANIZE AND PROPER DISCIPLINE ARE BOTH
ESSENTIAL ELEMENTS IN A BALANCED SOCIETY. 

THE WAGNER ACT DID NOT UNDERTAKE THE IMPOSSIBLE TASK OF SPECIFYING IN
PRECISE AND UNMISTAKABLE LANGUAGE EACH INCIDENT WHICH WOULD CONSTITUTE
AN UNFAIR LABOR PRACTICE.  ON THE CONTRARY, THAT ACT LEFT TO THE BOARD
THE WORK OF APPLYING THE ACT'S GENERAL PROHIBITORY LANGUAGE IN THE
LIGHT OF THE INFINITE COMBINATIONS OF EVENTS WHICH MIGHT BE CHARGED AS
VIOLATIVE OF ITS TERMS.  THUS A "RIGID SCHEME OF REMEDIES" IS AVOIDED
AND ADMINISTRATIVE FLEXIBILITY WITHIN APPROPRIATE STATUTORY LIMITATIONS
OBTAINED TO ACCOMPLISH THE DOMINANT PURPOSE OF THE LEGISLATION.  PHELPS
DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194.  SO FAR AS WE ARE HERE
CONCERNED, THAT PURPOSE IS THE RIGHT OF EMPLOYEES TO ORGANIZE FOR
MUTUAL AID WITHOUT EMPLOYER INTERFERENCE.  THIS IS THE PRINCIPLE OF
LABOR RELATIONS WHICH THE BOARD IS TO FOSTER. 

THE GRAVAMEN OF THE OBJECTION OF BOTH REPUBLIC AND LE TOURNEAU TO THE
BOARD'S ORDERS IS THAT THEY REST ON A POLICY FORMULATED WITHOUT DUE
ADMINISTRATIVE PROCEDURE.  TO BE MORE SPECIFIC IT IS THAT THE BOARD
CANNOT SUBSTITUTE ITS KNOWLEDGE OF INDUSTRIAL RELATIONS FOR SUBSTANTIVE
EVIDENCE.  THE CONTENTION IS THAT THERE MUST BE EVIDENCE BEFORE THE
BOARD TO SHOW THAT THE RULES AND ORDERS OF THE EMPLOYERS INTERFERED
WITH AND DISCOURAGED UNION ORGANIZATION IN THE CIRCUMSTANCES AND
SITUATION OF EACH COMPANY.  NEITHER IN THE REPUBLIC NOR THE LE TOURNEAU
CASES CAN IT PROPERLY BE SAID THAT THERE WAS EVIDENCE OR A FINDING THAT
THE PLANT'S PHYSICAL LOCATION MADE SOLICITATION AWAY FROM COMPANY
PROPERTY INEFFECTIVE TO REACH PROSPECTIVE UNION MEMBERS.  NEITHER OF
THESE IS LIKE A MINING OR LUMBER CAMP WHERE THE EMPLOYEES PASS THEIR
REST AS WELL AS THEIR WORK TIME ON THE EMPLOYER'S PREMISES, SO THAT
UNION ORGANIZATION MUST PROCEED UPON THE EMPLOYER'S PREMISES OR BE
SERIOUSLY HANDICAPPED.  FN3 

THE NATIONAL LABOR RELATIONS ACT CREATES A SYSTEM FOR THE ORGANIZATION
OF LABOR WITH EMPHASIS ON COLLECTIVE BARGAINING BY EMPLOYEES WITH
EMPLOYERS IN REGARD TO LABOR RELATIONS WHICH AFFECT COMMERCE.  AN
ESSENTIAL PART OF THAT SYSTEM IS THE PROVISION FOR THE PREVENTION OF
UNFAIR LABOR PRACTICES BY THE EMPLOYER WHICH MIGHT INTERFERE WITH THE
GUARANTEED RIGHTS.  THE METHOD FOR PREVENTION OF UNFAIR LABOR PRACTICES
IS FOR THE BOARD TO HOLD A HEARING ON A COMPLAINT WHICH HAS BEEN DULY
SERVED UPON THE EMPLOYER WHO IS CHARGED WITH AN UNFAIR LABOR PRACTICE. 
AT THAT HEARING THE EMPLOYER HAS THE RIGHT TO FILE AN ANSWER AND TO
GIVE TESTIMONY.  THIS TESTIMONY, TOGETHER WITH THAT GIVEN IN SUPPORT OF
THE COMPLAINT, MUST BE REDUCED TO WRITING AND FILED WITH THE BOARD. 
THE BOARD UPON THAT TESTIMONY IS DIRECTED TO MAKE FINDINGS OF FACT AND
DISMISS THE COMPLAINT OR ENTER APPROPRIATE ORDERS TO PREVENT IN WHOLE
OR IN PART THE UNFAIR PRACTICES WHICH HAVE BEEN CHARGED.  UPON THE
RECORD SO MADE AS TO TESTIMONY AND ISSUES, COURTS ARE EMPOWERED TO
ENFORCE, MODIFY OR SET ASIDE THE BOARD'S ORDERS,  FN4  SUBJECT TO THE
LIMITATION THAT THE FINDINGS OF THE BOARD AS TO FACTS, IF SUPPORTED BY
EVIDENCE, ARE CONCLUSIVE. 

PLAINLY THIS STATUTORY PLAN FOR AN ADVERSARY PROCEEDING REQUIRES THAT
THE BOARD'S ORDERS ON COMPLAINTS OF UNFAIR LABOR PRACTICES BE BASED
UPON EVIDENCE WHICH IS PLACED BEFORE THE BOARD BY WITNESSES WHO ARE
SUBJECT TO CROSSEXAMINATION BY OPPOSING PARTIES.  FN5  SUCH PROCEDURE
STRENGTHENS ASSURANCE OF FAIRNESS BY REQUIRING FINDINGS ON KNOWN
EVIDENCE.  OHIO BELL TEL. CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292,
302; UNITED STATES V. ABILENE & SOUTHERN R. CO., 265 U.S. 274, 288. 
SUCH A REQUIREMENT DOES NOT GO BEYOND THE NECESSITY FOR THE PRODUCTION
OF EVIDENTIAL FACTS, HOWEVER, AND COMPEL EVIDENCE AS TO THE RESULTS
WHICH MAY FLOW FROM SUCH FACTS.  MARKET STREET R. CO. V. RAILROAD
COMM'N, 324 U.S. 548, 559.  AN ADMINISTRATIVE AGENCY WITH POWER AFTER
HEARINGS TO DETERMINE ON THE EVIDENCE IN ADVERSARY PROCEEDINGS WHETHER
VIOLATIONS OF STATUTORY COMMANDS HAVE OCCURRED MAY INFER WITHIN THE
LIMITS OF THE INQUIRY FROM THE PROVEN FACTS SUCH CONCLUSIONS AS
REASONABLY MAY BE BASED UPON THE FACTS PROVEN.  ONE OF THE PURPOSES
WHICH LEAD TO THE CREATION OF SUCH BOARDS IS TO HAVE DECISIONS BASED
UPON EVIDENTIAL FACTS UNDER THE PARTICULAR STATUTE MADE BY EXPERIENCED
OFFICIALS WITH AN ADEQUATE APPRECIATION OF THE COMPLEXITIES OF THE
SUBJECT WHICH IS ENTRUSTED TO THEIR ADMINISTRATION.  LABOR BOARD V.
VIRGINIA POWER CO., 314 U.S. 469, 479; LABOR BOARD V. HEARST
PUBLICATIONS, 322 U.S. 111, 130. 

IN THE REPUBLIC AVIATION CORPORATION CASE THE EVIDENCE SHOWED THAT
THE PETITIONER WAS IN EARLY 1943 A NON-URBAN MANUFACTURING
ESTABLISHMENT FOR MILITARY PRODUCTION WHICH EMPLOYED THOUSANDS.  IT WAS
GROWING RAPIDLY.  TRAINS AND AUTOMOBILES GATHERED DAILY MANY EMPLOYEES
FOR THE PLANT FROM AN AREA ON LONG ISLAND, CERTAINLY LARGER THAN
WALKING DISTANCE.  THE RULE AGAINST SOLICITATION WAS INTRODUCED IN
EVIDENCE AND THE CIRCUMSTANCES OF ITS VIOLATION BY THE DISMISSED
EMPLOYEE AFTER WARNING WAS DETAILED. 

AS TO THE EMPLOYEES WHO WERE DISCHARGED FOR WEARING THE BUTTONS OF A
UNION STEWARD, THE EVIDENCE SHOWED IN ADDITION THE DISCUSSION IN REGARD
TO THEIR RIGHT TO WEAR THE INSIGNIA WHEN THE UNION HAD NOT BEEN
RECOGNIZED BY THE PETITIONER AS THE REPRESENTATIVE OF THE EMPLOYEES. 
PETITIONER LOOKED UPON A STEWARD AS A UNION REPRESENTATIVE FOR THE
ADJUSTMENT OF GRIEVANCES WITH THE MANAGEMENT AFTER EMPLOYER RECOGNITION
OF THE STEWARDS' UNION.  UNTIL SUCH RECOGNITION PETITIONER FELT THAT IT
WOULD VIOLATE ITS NEUTRALITY IN LABOR ORGANIZATION IF IT PERMITTED THE
DISPLAY OF A STEWARD BUTTON BY AN EMPLOYEE.  FROM ITS POINT OF VIEW,
SUCH DISPLAY REPRESENTED TO OTHER EMPLOYEES THAT THE UNION ALREADY WAS
RECOGNIZED. 

NO EVIDENCE WAS OFFERED THAT ANY UNUSUAL CONDITIONS EXISTED IN LABOR
RELATIONS, THE PLANT LOCATION OR OTHERWISE TO SUPPORT ANY CONTENTION
THAT CONDITIONS AT THIS PLANT DIFFERED FROM THOSE OCCURRING NORMALLY AT
ANY OTHER LARGE ESTABLISHMENT. 

THE LE TOURNEAU COMPANY OF GEORGIA CASE ALSO IS BARREN OF SPECIAL
CIRCUMSTANCES.  THE EVIDENCE WHICH WAS INTRODUCED TENDS TO PROVE THE
SIMPLE FACTS HERETOFORE SET OUT AS TO THE CIRCUMSTANCES SURROUNDING THE
DISCHARGE OF THE TWO EMPLOYEES FOR DISTRIBUTING UNION CIRCULARS. 

THESE WERE THE FACTS UPON WHICH THE BOARD REACHED ITS CONCLUSIONS AS
TO UNFAIR LABOR PRACTICES.  THE INTERMEDIATE REPORT IN THE REPUBLIC
AVIATION CASE, 51 N.L.R.B. AT 1195, SET OUT THE REASON WHY THE RULE
AGAINST SOLICITATION WAS CONSIDERED INIMICAL TO THE RIGHT OF
ORGANIZATION.  FN6  THIS WAS APPROVED BY THE BOARD.  ID., 1186.  THE
BOARD'S REASONS FOR CONCLUDING THAT THE PETITIONER'S INSISTENCE THAT
ITS EMPLOYEES REFRAIN FROM WEARING STEWARD BUTTONS APPEAR AT PAGE 1187
OF THE REPORT.  FN7  IN THE LE TOURNEAU COMPANY CASE THE DISCUSSION OF
THE REASONS UNDERLYING THE FINDINGS WAS MUCH MORE EXTENDED.  54
N.L.R.B. 1253, 1258, ET SEQ. WE INSERT IN THE NOTE BELOW A QUOTATION
WHICH SHOWS THE CHARACTER OF THE BOARD'S OPINION.  FN8  FURTHERMORE, IN
BOTH OPINIONS OF THE BOARD FULL CITATION OF AUTHORITIES WAS GIVEN,
INCLUDING MATTER OF PEYTON PACKING CO., 49 N.L.R.B. 828, 50 N.L.R.B.
355, HEREINAFTER REFERRED TO.  FN9    THE BOARD HAS FAIRLY, WE THINK,
EXPLICATED IN THESE CASES THE THEORY WHICH MOVED IT TO ITS CONCLUSIONS
IN THESE CASES.  THE EXCERPTS FROM ITS OPINIONS JUST QUOTED SHOW THIS. 
THE REASONS WHY IT HAS DECIDED AS IT HAS ARE SUFFICIENTLY SET FORTH. 
WE CANNOT AGREE, AS REPUBLIC URGES, THAT IN THESE PRESENT CASES
REVIEWING COURTS ARE LEFT TO "SHEER ACCEPTANCE" OF THE BOARD'S
CONCLUSIONS OR THAT ITS FORMULATION OF POLICY IS "CRYPTIC."  SEE
EASTERN-CENTRAL ASSN. V. UNITED STATES, 321 U.S. 194, 209.    NOT ONLY
HAS THE BOARD IN THESE CASES SUFFICIENTLY EXPRESSED THE THEORY UPON
WHICH IT CONCLUDES THAT RULES AGAINST SOLICITATION OR PROHIBITIONS
AGAINST THE WEARING OF INSIGNIA MUST FALL AS INTERFERENCES WITH UNION
ORGANIZATION, BUT, IN SO FAR AS RULES AGAINST SOLICITATION ARE
CONCERNED, IT HAD THERETOFORE SUCCINCTLY EXPRESSED THE REQUIREMENTS OF
PROOF WHICH IT CONSIDERED APPROPRIATE TO OUTWEIGH OR OVERCOME THE
PRESUMPTION AS TO RULES AGAINST SOLICITATION.  IN THE PEYTON PACKING
COMPANY CASE, 49 N.L.R.B. 828, AT 843, HEREINBEFORE REFERRED TO, THE
PRESUMPTION ADOPTED BY THE BOARD IS SET FORTH.  FN10 

ALTHOUGH THIS DEFINITE RULING APPEARED IN THE BOARD'S DECISIONS, NO
MOTION WAS MADE IN THE COURT BY REPUBLIC OR LE TOURNEAU AFTER THE
BOARD'S DECISIONS FOR LEAVE TO INTRODUCE ADDITIONAL EVIDENCE TO SHOW
UNUSUAL CIRCUMSTANCES INVOLVING THEIR PLANTS OR FOR OTHER PURPOSES. 
FN11  SUCH A MOTION MIGHT HAVE BEEN GRANTED BY THE BOARD OR COURT IN
VIEW OF THE FACT THAT THE INTERMEDIATE REPORT IN THE REPUBLIC AVIATION
CASE WAS DATED MAY 21, 1943, AND THAT IN LE TOURNEAU NOVEMBER 11, 1943,
WHILE THE OPINION IN THE PEYTON PACKING COMPANY CASE WAS GIVEN AS LATE
AS MAY 18, 1943.  WE PERCEIVE NO ERROR IN THE BOARD'S ADOPTION OF THIS
PRESUMPTION.  FN12  THE BOARD HAD PREVIOUSLY CONSIDERED SIMILAR RULES
IN INDUSTRIAL ESTABLISHMENTS AND THE DEFINITIVE FORM WHICH THE PEYTON
PACKING COMPANY DECISION GAVE TO THE PRESUMPTION WAS THE PRODUCT OF THE
BOARD'S APPRAISAL OF NORMAL CONDITIONS ABOUT INDUSTRIAL ESTABLISHMENTS
N13.  LIKE A STATUTORY PRESUMPTION OR ONE ESTABLISHED BY REGULATION,
THE VALIDITY, PERHAPS IN A VARYING DEGREE, DEPENDS UPON THE RATIONALITY
BETWEEN WHAT IS PROVED AND WHAT IS INFERRED.  FN14 

IN THE REPUBLIC AVIATION CASE, PETITIONER URGES THAT IRRESPECTIVE OF
THE VALIDITY OF THE RULE AGAINST SOLICITATION, ITS APPLICATION IN THIS
INSTANCE DID NOT VIOLATE SEC. 8(3), NOTE 1, SUPRA, BECAUSE THE RULE WAS
NOT DISCRIMINATORILY APPLIED AGAINST UNION SOLICITATION BUT WAS
IMPARTIALLY ENFORCED AGAINST ALL SOLICITORS.  IT SEEMS CLEAR, HOWEVER,
THAT IF A RULE AGAINST SOLICITATION IS INVALID AS TO UNION SOLICITATION
ON THE EMPLOYER'S PREMISES DURING THE EMPLOYEE'S OWN TIME, A DISCHARGE
BECAUSE OF VIOLATION OF THAT RULE DISCRIMINATES WITHIN THE MEANING OF
SEC. 8(3) IN THAT IT DISCOURAGES MEMBERSHIP IN A LABOR ORGANIZATION. 

REPUBLIC AVIATION CORPORATION V. NATIONAL LABOR RELATIONS BOARD IS
AFFIRMED. 

NATIONAL LABOR RELATIONS BOARD V. LE TOURNEAU COMPANY OF GEORGIA IS
REVERSED.  NO. 226 AFFIRMED.  NO. 452 REVERSED. 

FN1  49 STAT. 449, 452: 

"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
CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID OR PROTECTION. 

"SEC. 8.  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 7. 

     .         .         .      .         . 

"(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:..." 

FN2  MIDLAND STEEL PRODUCTS CO. V. LABOR BOARD, 113 F.2D 800; LABOR
BOARD V. WILLIAMSON-DICKIE MFG. CO., 130 F.2D 260, 267; BOEING AIRPLANE
CO. V. LABOR BOARD, 140 F.2D 423; LE TOURNEAU CO. V. LABOR BOARD, 143
F.2D 67. 

FN3  SEE SIXTH ANNUAL REPORT, NATIONAL LABOR RELATIONS BOARD, PP. 43,
44; RE HARLAN FUEL CO., 8 N.L.R.B. 25, 28, 63; RE WEST KENTUCKY COAL
CO., 10 N.L.R.B., 88, 105-6, 133; RE WEYERHAEUSER TIMBER CO., 31
N.L.R.B. 258, 262, 267, 270; CF. LABOR BOARD V. WATERMAN S.S. CO., 309
U.S. 206, 224. 

FN4  LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1; 49 STAT. 449, 452
455, SECS. 7 TO 10 INCLUSIVE. 

FN5  THIS IS NOT A STATUTORY ADMINISTRATIVE HEARING TO REACH A BASIS
FOR ACTION AKIN TO LEGISLATION.  SEE NORWEGIAN NITROGEN CO. V. UNITED
STATES, 288 U.S. 294, 304-319. 

FN6  51 N.L.R.B. 1195: 

"THUS, UNDER THE CONDITIONS OBTAINING IN JANUARY 1943, THE
RESPONDENT'S EMPLOYEES, WORKING LONG HOURS IN A PLANT ENGAGED ENTIRELY
IN WAR PRODUCTION AND EXPANDING WITH EXTREME RAPIDITY, WERE ENTIRELY
DEPRIVED OF THEIR NORMAL RIGHT TO 'FULL FREEDOM OF ASSOCIATION' IN THE
PLANT ON THEIR OWN TIME, THE VERY TIME AND PLACE UNIQUELY APPROPRIATE
AND ALMOST SOLELY AVAILABLE TO THEM THEREFOR.  THE RESPONDENT'S RULE IS
THEREFORE IN CLEAR DEROGATION OF THE RIGHTS OF ITS EMPLOYEES GUARANTEED
BY THE ACT." 

FN7  WE QUOTE AN ILLUSTRATIVE PORTION.  51 N.L.R.B. 1187-88:  "WE DO
NOT BELIEVE THAT THE WEARING OF A STEWARD BUTTON IS A REPRESENTATION
THAT THE EMPLOYER EITHER APPROVES OR RECOGNIZES THE UNION IN QUESTION
AS THE REPRESENTATIVE OF THE EMPLOYEES, ESPECIALLY WHEN, AS HERE, THERE
IS NO COMPETING LABOR ORGANIZATION IN THE PLANT.  FURTHERMORE, THERE IS
NO EVIDENCE IN THE RECORD HEREIN THAT THE RESPONDENT'S EMPLOYEES SO
UNDERSTOOD THE STEWARD BUTTONS OR THAT THE APPEARANCE OF UNION STEWARDS
IN THE PLANT AFFECTED THE NORMAL OPERATION OF THE RESPONDENT'S
GRIEVANCE PROCEDURE.  ON THE OTHER HAND, THE RIGHT OF EMPLOYEES TO WEAR
UNION INSIGNIA AT WORK HAS LONG BEEN RECOGNIZED AS A REASONABLE AND
LEGITIMATE FORM OF UNION ACTIVITY, AND THE RESPONDENT'S CURTAILMENT OF
THAT RIGHT IS CLEARLY VIOLATIVE OF THE ACT." 

FN8  54 N.L.R.B. AT 1259-60:  "AS THE CIRCUIT COURT OF APPEALS FOR
THE SECOND CIRCUIT HAS HELD, 'IT IS NOT EVERY INTERFERENCE WITH
PROPERTY RIGHTS THAT IS WITHIN THE FIFTH AMENDMENT  ... INCONVENIENCE,
OR EVEN SOME DISLOCATION OF PROPERTY RIGHTS, MAY BE NECESSARY IN ORDER
TO SAFEGUARD THE RIGHT TO COLLECTIVE BARGAINING.'  THE BOARD HAS
FREQUENTLY APPLIED THIS PRINCIPLE IN DECISIONS INVOLVING VARYING SETS
OF CIRCUMSTANCES, WHERE IT HAS HELD THAT THE EMPLOYER'S RIGHT TO
CONTROL HIS PROPERTY DOES NOT PERMIT HIM TO DENY ACCESS TO HIS PROPERTY
TO PERSONS WHOSE PRESENCE IS NECESSARY THERE TO ENABLE THE EMPLOYEES
EFFECTIVELY TO EXERCISE THEIR RIGHT TO SELF-ORGANIZATION AND COLLECTIVE
BARGAINING, AND IN THOSE DECISIONS WHICH HAVE REACHED THE COURTS, THE
BOARD'S POSITION HAS BEEN SUSTAINED.  SIMILARLY, THE BOARD HAS HELD
THAT, WHILE IT WAS 'WITHIN THE PROVINCE OF AN EMPLOYER TO PROMULGATE
AND ENFORCE A RULE PROHIBITING UNION SOLICITATION DURING WORKING
HOURS,' IT WAS 'NOT WITHIN THE PROVINCE OF AN EMPLOYER TO PROMULGATE
AND ENFORCE A RULE PROHIBITING UNION SOLICITATION BY AN EMPLOYEE
OUTSIDE OF WORKING HOURS, ALTHOUGH ON COMPANY PROPERTY,' THE LATTER
RESTRICTION BEING DEEMED AN UNREASONABLE IMPEDIMENT TO THE EXERCISE OF
THE RIGHT TO SELF-ORGANIZATION." 

FN9  51 N.L.R.B. 1186, 1187, AT NOTE 1 AND 54 N.L.R.B. 1253, 1260, AT
NOTES 6 AND 7. 

FN10  49 N.L.R.B. AT 843-44:  "THE ACT, OF COURSE, DOES NOT PREVENT
AN EMPLOYER FROM MAKING AND ENFORCING REASONABLE RULES COVERING THE
CONDUCT OF EMPLOYEES ON COMPANY TIME.  WORKING TIME IS FOR WORK.  IT IS
THEREFORE WITHIN THE PROVINCE OF AN EMPLOYER TO PROMULGATE AND ENFORCE
A RULE PROHIBITING UNION SOLICITATION DURING WORKING HOURS.  SUCH A
RULE MUST BE PRESUMED TO BE VALID IN THE ABSENCE OF EVIDENCE THAT IT
WAS ADOPTED FOR A DISCRIMINATORY PURPOSE.  IT IS NO LESS TRUE THAT TIME
OUTSIDE WORKING HOURS, WHETHER BEFORE OR AFTER WORK, OR DURING LUNCHEON
OR REST PERIODS, IS AN EMPLOYEE'S TIME TO USE AS HE WISHES WITHOUT
UNREASONABLE RESTRAINT, ALTHOUGH THE EMPLOYEE IS ON COMPANY PROPERTY. 
IT IS THEREFORE NOT WITHIN THE PROVINCE OF AN EMPLOYER TO PROMULGATE
AND ENFORCE A RULE PROHIBITING UNION SOLICITATION BY AN EMPLOYEE
OUTSIDE OF WORKING HOURS, ALTHOUGH ON COMPANY PROPERTY.  SUCH A RULE
MUST BE PRESUMED TO BE AN UNREASONABLE IMPEDIMENT TO SELF-ORGANIZATION
AND THEREFORE DISCRIMINATORY IN THE ABSENCE OF EVIDENCE THAT SPECIAL
CIRCUMSTANCES MAKE THE RULE NECESSARY IN ORDER TO MAINTAIN PRODUCTION
OR DISCIPLINE." 

FN11  49 STAT. 454-55, SEC. 10(E): 

"...  IF EITHER PARTY SHALL APPLY TO THE COURT FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE AND SHALL SHOW TO THE SATISFACTION OF THE COURT
THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR THE FAILURE TO ADDUCE SUCH EVIDENCE IN THE
HEARING BEFORE THE BOARD, ITS MEMBER, AGENT, OR AGENCY, THE COURT MAY
ORDER SUCH ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE BOARD, ITS
MEMBER, AGENT, OR AGENCY, AND TO BE MADE A PART OF THE TRANSCRIPT
...." 

FN12  COMPARE LABOR BOARD V. REGAL KNITWEAR CO., 140 F.2D 746,
AFFIRMED ON ANOTHER GROUND, REGAL KNITWEAR CO. V. LABOR BOARD, 324 U.S.
9; CRICHTON V. UNITED STATES, 56 F.SUPP.  876, 880. 

FN13  RE DENVER TENT & AWNING CO., 47 N.L.R.B. 586, 588; RE UNITED
STATES CARTRIDGE CO., 47 N.L.R.B. 896, 897; RE CARTER CARBURETOR CORP.,
48 N.L.R.B. 354, 356; RE SCULLIN STEEL CO., 49 N.L. R.B. 405, 411.  SEE
ALSO FOR COMPARISON THE LATER CASES OF RE DALLAS TANK & WELDING CO., 51
N.L.R.B. 1315; RE JOHNSON-STEPHENS & SHINKLE SHOE CO., 54 N.L.R.B. 189,
192. 

FN14  MOBILE, J. & K.C.R. CO. V. TURNIPSEED, 219 U.S. 35, 43; WESTERN
& ATLANTIC R. CO. V. HENDERSON, 279 U.S. 639, 642; HELVERING V. RANKIN,
295 U.S. 123, 129.  COMPARE TOT V. UNITED STATES, 319 U.S. 463. 

MR. JUSTICE ROBERTS DISSENTS IN EACH CASE. 
..END :






PRECISION CO. V. AUTOMOTIVE CO., 324 U.S. 806 


NO. 377.  ARGUED JANUARY 31, FEBRUARY 1, 1945.  - DECIDED APRIL 23,
1945.  - 143 F.2D 332, REVERSED. 


1.  IN THIS SUIT FOR INFRINGEMENT OF PATENTS AND BREACH OF CONTRACTS
RELATED THERETO, THE DISTRICT COURT'S FINDINGS OF FACT AND CONCLUSIONS
OF LAW SUSTAINED ITS JUDGMENT OF DISMISSAL ON THE GROUND OF THE
COMPLAINANT'S "UNCLEAN HANDS," AND THE CIRCUIT COURT OF APPEALS'
REVERSAL OF THE JUDGMENT WAS ERRONEOUS.  PP. 807, 820. 

2.  THE MAXIM "HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS"
CLOSES THE DOORS OF A COURT OF EQUITY TO ONE TAINTED WITH
INEQUITABLENESS OR BAD FAITH RELATIVE TO THE MATTER IN WHICH HE SEEKS
RELIEF, HOWEVER IMPROPER MAY HAVE BEEN THE BEHAVIOR OF THE DEFENDANT. 
P. 814. 

3.  THE CLEAN-HANDS DOCTRINE IS ROOTED IN THE HISTORICAL CONCEPT OF A
COURT OF EQUITY AS A VEHICLE FOR AFFIRMATIVELY ENFORCING THE
REQUIREMENTS OF CONSCIENCE AND GOOD FAITH.  P. 814. 

4.  WHILE EQUITY DOES NOT REQUIRE THAT ITS SUITORS SHALL HAVE LED
BLAMELESS LIVES AS TO OTHER MATTERS, IT DOES REQUIRE THAT THEY SHALL
HAVE ACTED WITHOUT FRAUD OR DECEIT AS TO THE MATTER IN ISSUE.  P. 814. 

5.  ONE'S MISCONDUCT NEED NOT HAVE BEEN OF SUCH A NATURE AS TO BE
PUNISHABLE AS A CRIME OR AS TO JUSTIFY LEGAL PROCEEDINGS, IN ORDER TO
WARRANT INVOCATION OF THE MAXIM.  P. 815. 

6.  WHERE A SUIT IN EQUITY CONCERNS THE PUBLIC INTEREST AS WELL AS
THE PRIVATE INTERESTS OF THE LITIGANTS, THE CLEAN-HANDS DOCTRINE
ASSUMES GREATER SIGNIFICANCE; FOR IF THE EQUITY COURT IN SUCH CASE
PROPERLY APPLIES THE MAXIM TO WITHHOLD ITS ASSISTANCE, IT NOT ONLY
PREVENTS A WRONGDOER FROM ENJOYING THE FRUITS OF HIS TRANSGRESSION BUT
AVERTS AN INJURY TO THE PUBLIC.  P. 815. 

7.  A SUIT TO ENFORCE PATENTS AND RELATED CONTRACTS INVOLVES THE
PUBLIC INTEREST AS WELL AS INTERESTS OF THE ADVERSE PARTIES.  P. 815. 

8.  THE FAR-REACHING SOCIAL AND ECONOMIC CONSEQUENCES OF A PATENT
GIVE THE PUBLIC A PARAMOUNT INTEREST IN SEEING THAT PATENT MONOPOLIES
SPRING FROM BACKGROUNDS FREE FROM FRAUD OR OTHER INEQUITABLE CONDUCT
AND THAT SUCH MONOPOLIES ARE KEPT WITHIN THEIR LEGITIMATE SCOPE.  P.
816. 

9.  THOSE WHO HAVE APPLICATIONS PENDING IN THE PATENT OFFICE OR WHO
ARE PARTIES TO PATENT OFFICE PROCEEDINGS HAVE AN UNCOMPROMISING DUTY TO
REPORT TO IT ALL FACTS CONCERNING POSSIBLE FRAUD OR INEQUITABLENESS
UNDERLYING THE APPLICATIONS IN ISSUE.  FAILURE IN THIS DUTY IS NOT
EXCUSED BY REASONABLE DOUBTS AS TO THE SUFFICIENCY OF THE PROOF OF THE
INEQUITABLE CONDUCT NOR BY RESORT TO INDEPENDENT LEGAL ADVICE.  P.
818. 

10.  A SETTLEMENT OF INTERFERENCE PROCEEDINGS WHICH IS GROUNDED UPON
KNOWLEDGE OR REASONABLE BELIEF OF PERJURY, NOT REVEALED TO THE PATENT
OFFICE OR TO ANY OTHER PUBLIC REPRESENTATIVE, LACKS THAT EQUITABLE
NATURE WHICH ENTITLES IT TO BE ENFORCED AND PROTECTED IN A COURT OF
EQUITY.  P. 819. 

PRECISION INSTRUMENT MANUFACTURING CO. ET AL. V. AUTOMOTIVE
MAINTENANCE MACHINERY CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 323 U.S. 695, TO REVIEW THE REVERSAL OF A JUDGMENT
DISMISSING THE COMPLAINTS AND COUNTERCLAIMS IN TWO SUITS FOR
INFRINGEMENT OF PATENTS AND BREACH OF CONTRACTS. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, AUTOMOTIVE MAINTENANCE MACHINERY COMPANY, CHARGED IN
TWO SUITS THAT THE VARIOUS PETITIONERS HAD INFRINGED THREE PATENTS
OWNED BY IT RELATING TO TORQUE WRENCHES.  FN1  IT WAS FURTHER ASSERTED
THAT THE ALLEGEDLY INFRINGING ACTS ALSO BREACHED SEVERAL CONTRACTS
RELATED TO THE PATENTS.  IN DEFENSE, THE PETITIONERS CLAIMED INTER ALIA
THAT AUTOMOTIVE POSSESSED SUCH "UNCLEAN HANDS" AS TO FORECLOSE ITS
RIGHT TO ENFORCE THE PATENTS AND THE CONTRACTS. 

THE DISTRICT COURT, AT THE CLOSE OF A CONSOLIDATED TRIAL ON THE SOLE
ISSUE OF AUTOMOTIVE'S ALLEGED INEQUITABLE CONDUCT, DELIVERED AN ORAL
OPINION HOLDING THAT AUTOMOTIVE'S HANDS WERE SOILED TO SUCH AN EXTENT
THAT ALL RELIEF WHICH IT REQUESTED SHOULD BE DENIED.  THIS OPINION WAS
SUBSEQUENTLY WITHDRAWN AT THE REQUEST OF ONE OF THE WITNESSES AND IS
NOT A PART OF THE RECORD.  AT THE SAME TIME, HOWEVER, THE COURT ENTERED
WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW, FORMING THE BASIS FOR
A JUDGMENT DISMISSING THE VARIOUS COMPLAINTS AND COUNTERCLAIMS "FOR
WANT OF EQUITY."  ON APPEAL, THE CIRCUIT COURT OF APPEALS REVIEWED THE
FACTS AT LENGTH AND CONCLUDED THAT THE DISTRICT COURT'S FINDINGS OF
FACT WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND THAT ITS
CONCLUSIONS OF LAW WERE NOT SUPPORTED BY ITS FINDINGS.  THE JUDGMENT
WAS ACCORDINGLY REVERSED.  143 F.2D 332.  WE BROUGHT THE CASE HERE
BECAUSE OF THE PUBLIC IMPORTANCE OF THE ISSUES INVOLVED. 

THE BASIC FACTS NECESSARY TO A DETERMINATION OF THE VITAL ISSUES ARE
CLEAR AND WITHOUT MATERIAL DISPUTE.  IN CHRONOLOGICAL ORDER THEY MAY BE
SUMMARIZED AS FOLLOWS: 

IN 1937 AND PRIOR THERETO AUTOMOTIVE MANUFACTURED AND SOLD TORQUE
WRENCHES DEVELOPED BY ONE OF ITS EMPLOYEES, HERMAN W. ZIMMERMAN. 
DURING THIS PERIOD SNAP-ON TOOLS CORPORATION WAS ONE OF ITS CUSTOMERS
FOR THESE WRENCHES.  AUTOMOTIVE ALSO HAD IN ITS EMPLOY AT THIS TIME ONE
GEORGE B. THOMASMA, WHO WORKED WITH ZIMMERMAN AND WHO WAS WELL
ACQUAINTED WITH HIS IDEAS ON TORQUE WRENCHES.  IN NOVEMBER, 1937,
THOMASMA SECRETLY GAVE INFORMATION TO AN OUTSIDER, KENNETH R. LARSON,
CONCERNING TORQUE WRENCHES.  TOGETHER THEY WORKED OUT PLANS FOR A NEW
WRENCH, ALTHOUGH THOMASMA CLAIMED THAT IT WAS ENTIRELY HIS OWN IDEA. 

AFTER UNSUCCESSFULLY TRYING TO INTEREST OTHER DISTRIBUTORS, LARSON
MADE ARRANGEMENTS TO SUPPLY SNAP-ON WITH THE NEW TORQUE WRENCH.  ON
OCTOBER 1, 1938, LARSON FILED AN APPLICATION FOR A PATENT ON THE NEWLY
DEVELOPED WRENCH, WHICH APPLICATION HAD BEEN ASSIGNED TO SNAP-ON
SEVERAL DAYS PRIOR THERETO.  FN2  THEN IN DECEMBER, 1938, LARSON,
THOMASMA AND ONE WALTER A. CARLSEN ORGANIZED THE PRECISION INSTRUMENT
MANUFACTURING COMPANY TO MAKE THE WRENCHES TO SUPPLY SNAP-ON'S
REQUIREMENTS.  ALL THREE RECEIVED STOCK AND WERE ELECTED OFFICERS AND
DIRECTORS OF THE NEW COMPANY.  MANUFACTURE OF THE WRENCHES BEGAN IN
JANUARY, 1939, AND PRECISION SUCCEEDED IN TAKING AWAY FROM AUTOMOTIVE
ALL OF SNAP-ON'S BUSINESS.  THOMASMA CONTINUED TO WORK FOR AUTOMOTIVE
UNTIL THE LATTER DISCOVERED HIS CONNECTION WITH PRECISION AND
DISCHARGED HIM IN JUNE, 1939.  THOMASMA'S CONNECTION WITH PRECISION WAS
ALSO CONCEALED FROM SNAP-ON DURING MOST OF THIS PERIOD. 

SUBSEQUENTLY ON OCTOBER 11, 1939, THE PATENT OFFICE DECLARED AN
INTERFERENCE BETWEEN CERTAIN CLAIMS IN LARSON'S PENDING PATENT
APPLICATION AND THOSE IN ONE FILED BY ZIMMERMAN.  AUTOMOTIVE WAS THE
OWNER OF ZIMMERMAN'S APPLICATION.  SHORTLY AFTER THE INTERFERENCE WAS
DECLARED, R. E. FIDLER, AUTOMOTIVE'S ATTORNEY, WROTE TO THE PRESIDENT
OF THE COMPANY THAT THE "WHOLE SITUATION CONFRONTING YOUR OPPONENTS IN
THIS INTERFERENCE IS QUITE MESSY, AND I WILL BE SOMEWHAT SURPRISED IF
THEY FIGHT THE MATTER."  HE FURTHER WROTE THAT IF THERE WAS A CONTEST
"THEY SURELY WILL HAVE A LOT OF EXPLAINING TO DO." 

IN AUGUST, 1940, LARSON FILED HIS PRELIMINARY STATEMENT IN THE PATENT
OFFICE PROCEEDINGS.  IN IT HE GAVE FALSE DATES AS TO THE CONCEPTION,
DISCLOSURE, DRAWING, DESCRIPTION AND REDUCTION TO PRACTICE OF HIS
CLAIMED INVENTION.  THESE DATES WERE DESIGNED TO ANTEDATE THOSE IN
ZIMMERMAN'S APPLICATION BY ONE TO THREE YEARS.  LARSON ALSO CLAIMED
THAT HE WAS THE SOLE INVENTOR OF HIS WRENCH.  WHEN FIDLER LEARNED OF
THIS PRELIMINARY STATEMENT HE IMMEDIATELY SUSPECTED THAT "THERE MUST BE
SOMETHING WRONG WITH THIS PICTURE" AND SUGGESTED TO AUTOMOTIVE'S
PRESIDENT THAT A "VERY CAREFUL AND THOROUGH INVESTIGATION" BE MADE OF
THE SITUATION.  THE PRESIDENT AGREED.  FIDLER THEN EMPLOYED SEVERAL
INVESTIGATORS WHO MADE ORAL REPORTS TO HIM FROM TIME TO TIME. 
ACCORDING TO FIDLER'S MEMORANDA OF THESE REPORTS, FIDLER LEARNED IN
GREAT DETAIL IN AUGUST AND SEPTEMBER, 1940, THE PART THAT THOMASMA
PLAYED IN THE DEVELOPMENT OF THE LARSON WRENCH AND IN THE ORGANIZATION
OF PRECISION.  HE DISCOVERED THAT THOMASMA CLAIMED TO HAVE INVENTED THE
WRENCH AND THAT LARSON "WAS NOW TRYING TO FREEZE HIM OUT." 

FROM OCTOBER 24 TO NOVEMBER 4, 1940, LARSON AND EIGHT WITNESSES
TESTIFIED IN THE INTERFERENCE PROCEEDINGS IN SUPPORT OF HIS CLAIMS,
CORROBORATING HIS STATEMENTS AS TO DATES DESPITE CROSS-EXAMINATION. 
THE DAY BEFORE THIS TESTIMONY ENDED THOMASMA MET WITH FIDLER AND
AUTOMOTIVE'S PRESIDENT AND STATED THAT HE HAD DEVELOPED LARSON'S WRENCH
AND THAT LARSON'S PATENT APPLICATION WAS A "FRAME-UP."  FIDLER THEN
PROCURED FROM THOMASMA AN EIGHTY-THREE PAGE STATEMENT CONCERNING THESE
MATTERS, WHICH THOMASMA SWORE TO ON NOVEMBER 15.  AS THE DISTRICT COURT
FOUND, THIS STATEMENT OR AFFIDAVIT "RELATED IN EXTENSIVE DETAIL THE
STATEMENTS OF THOMASMA WITH RESPECT TO LARSON'S EARLY WORK AND
DISCLOSED SUCH INTIMATE KNOWLEDGE THEREOF AS TO LEAVE LITTLE DOUBT OF
THE AUTHOR'S KNOWLEDGE OF THE FACTS." 

WITH THESE FACTS BEFORE HIM, FIDLER ADMITTED THAT HE "PERSONALLY WAS
INCLINED TO TAKE THE POSITION THAT I SHOULD DO SOMETHING DRASTIC" IN
THE FORM OF TAKING THE MATTER UP WITH THE PATENT OFFICE OR THE DISTRICT
ATTORNEY.  HE RESOLVED HIS PROBLEM, HOWEVER, BY SUBMITTING IT TO AN
OUTSIDE ATTORNEY.  THE LATTER ADVISED HIM THAT HIS EVIDENCE WAS
INSUFFICIENT TO ESTABLISH LARSON'S PERJURY, THAT THE PATENT OFFICE
WOULD NOT CONSIDER THE MATTER UNTIL ALL PROOFS IN THE INTERFERENCE
PROCEEDINGS WERE IN AND THAT THE DISTRICT ATTORNEY PROBABLY WOULD NOT
TOUCH THE SITUATION WHILE THE INTERFERENCE PROCEEDINGS WERE PENDING. 
FIDLER FOLLOWED HIS ADVICE. 

A FEW DAYS LATER FIDLER INFORMED LARSON'S PATENT ATTORNEY, HARRY C.
ALBERTS, OF THE INFORMATION DISCLOSED IN THE THOMASMA AFFIDAVIT. 
ALBERTS ADMITTED THAT "IT LOOKED VERY MUCH LIKE LARSON HAD GIVEN FALSE
TESTIMONY" AND ASKED THAT FURTHER EXAMINATION OF THOMASMA BE MADE IN
HIS PRESENCE.  ACCORDINGLY, ON NOVEMBER 28, THOMASMA WAS EXAMINED
ORALLY BEFORE ALBERTS, FIDLER AND OFFICIALS OF AUTOMOTIVE AND SNAP-ON.
THOMASMA REPEATED SUBSTANTIALLY THE SAME STORY AS IN HIS AFFIDAVIT. 
SNAP-ON'S PRESIDENT SAID THAT IF THE STORY WERE TRUE "THE WHOLE THING
SMELLS TO THE HIGH HEAVENS."  AND ALBERTS REMARKED THAT UNDER THE
CIRCUMSTANCES HE FELT HE WOULD HAVE TO WITHDRAW AS LARSON'S ATTORNEY. 

ON THE SAME DAY, ALBERTS AND SNAP-ON'S PRESIDENT CONFRONTED LARSON
AND CARLSEN WITH THE THOMASMA STORY AND DEMANDED AN EXPLANATION. 
LARSON REFUSED TO COMMIT HIMSELF ON THE TRUTH OF THOMASMA'S ACCOUNT BUT
FINALLY ADMITTED THAT "MY TESTIMONY IS FALSE AND THE WHOLE CASE IS
FALSE."  ALBERTS THEN WITHDREW AS THEIR ATTORNEY,  FN3  GIVING THEM THE
NAMES OF THREE OTHER LAWYERS, INCLUDING M. K. HOBBS.  THE FACT THAT
ALBERTS WITHDREW WAS COMMUNICATED BY HIM TO FIDLER. 

LARSON AND CARLSEN CALLED ON HOBBS THE NEXT DAY, NOVEMBER 29.  THEY
TOLD HIM THEY WERE WILLING TO CONCEDE PRIORITY IN ZIMMERMAN AND WANTED
HOBBS TO SETTLE THE INTERFERENCE PROCEEDINGS.  FN4 HOBBS TOOK THE CASE
ON THAT BASIS, MAKING NO EFFORT TO INQUIRE INTO THE REASONS FOR THE
CONCESSION SINCE HE CONSIDERED THAT MATTER IMMATERIAL.  EVEN WHEN
FIDLER TRIED TO TELL HIM LATER ABOUT THE PERJURY, HOBBS STOPPED HIM FOR
HE "DIDN'T WANT TO HEAR THE CONFLICT IN TESTIMONY." 

HOBBS IMMEDIATELY UNDERTOOK TO SETTLE THE INTERFERENCE PROCEEDINGS. 
ON DECEMBER 2 HE PROPOSED A SETTLEMENT WHICH INCLUDED A CONCESSION OF
PRIORITY BY LARSON, BUT THIS PROPOSAL WAS APPARENTLY NOT SATISFACTORY
TO ALL THOSE CONCERNED.  MEANWHILE FIDLER PRESENTED THE FACTS TO
ANOTHER DISINTERESTED LAWYER AND ASKED HIM WHETHER HE THOUGHT THERE WAS
ENOUGH EVIDENCE TO BRING A CONSPIRACY SUIT FOR DAMAGES OR A CRIMINAL
ACTION.  THE LAWYER, AFTER ADMITTING THAT HE DID NOT HAVE THE SLIGHTEST
DOUBT BUT THAT THOMASMA WAS TELLING THE TRUTH, REPLIED IN THE
NEGATIVE. 

ON DECEMBER 13, FIDLER SUBMITTED A DRAFT AGREEMENT THAT HE HAD
PREPARED.  THIS DRAFT CONTAINED A RECITAL THAT "IT HAS BEEN DETERMINED
BY THE PARTIES HERETO AND THEIR RESPECTIVE COUNSEL THAT THE PARTY
ZIMMERMAN IS THE PRIOR INVENTOR OF THE SUBJECT MATTER INVOLVED IN SAID
INTERFERENCE NO. 77,565, AS WELL AS ALL OTHER SUBJECT MATTER COMMONLY
DISCLOSED IN SAID ZIMMERMAN AND LARSON APPLICATIONS."  BUT THIS DRAFT
WAS LIKEWISE UNACCEPTABLE. 

FOR A TIME, NEGOTIATIONS WERE BROKEN OFF AND RESUMPTION OF THE
INTERFERENCE PROCEEDINGS SEEMED IMMINENT.  ONE OF THE OTHER ATTORNEYS
FOR AUTOMOTIVE WROTE A LETTER ON DECEMBER 19 TO ALBERTS, WHO WAS STILL
ACTING AS ATTORNEY FOR SNAP-ON, STATING THAT "YOU MUST RECOGNIZE THAT A
LARGE PART OF THE TESTIMONY TAKEN ON BEHALF OF SNAP-ON AND LARSON IS,
TO PUT IT MILDLY, NOT THE WHOLE TRUTH" AND THAT "YOU ARE HOLDING UP THE
ISSUANCE OF THE ZIMMERMAN PATENT WITHOUT THE SLIGHTEST JUSTIFICATION." 
FIDLER, WHO HAD APPROVED THIS LETTER, JUSTIFIED THESE REMARKS ON THE
GROUND THAT "THEY HAD TOLD US ZIMMERMAN WAS THE PRIOR INVENTOR AND WE
HADN'T YET RECEIVED A CONCESSION OF PRIORITY."  IN REPLY TO THIS
LETTER, ALBERTS CHARGED THAT AUTOMOTIVE'S ATTORNEYS WERE USING
"THREATENING ACCUSATIONS" AND "DURESS" AND THAT THEY WERE THREATENING
TO "UNLOOSE THE DOGS" UNLESS THEY GOT EVERYTHING THEY REQUESTED IN THE
SETTLEMENT. 

SUDDENLY ON THE NEXT DAY, DECEMBER 20, NEGOTIATIONS WERE RESUMED AND
THE PARTIES QUICKLY ENTERED INTO THREE CONTRACTS, THE FIRST TWO OF
WHICH ARE INVOLVED IN THIS SUIT.  THESE CONTRACTS, IN THEIR RELEVANT
PARTS, PROVIDED AS FOLLOWS: 

(1)  UNDER THE AUTOMOTIVE AND PRECISION-LARSON AGREEMENT, LARSON
CONCEDED PRIORITY IN ZIMMERMAN AND LARSON'S APPLICATION WAS TO BE
ASSIGNED TO AUTOMOTIVE.  AUTOMOTIVE AGREED TO LICENSE LARSON AND
PRECISION TO COMPLETE THEIR UNFILLED ORDERS FROM SNAP-ON TO THE EXTENT
OF ABOUT 6,000 WRENCHES, WITH A ROYALTY TO BE PAID ON THE EXCESS. 
AUTOMOTIVE RELEASED PRECISION, LARSON AND THEIR CUSTOMERS FROM
LIABILITY FOR ANY PAST INFRINGEMENT AND GAVE PRECISION AND LARSON A
GENERAL RELEASE AS TO ALL CIVIL DAMAGES.  FINALLY, PRECISION AND LARSON
ACKNOWLEDGED THE VALIDITY OF THE CLAIMS OF THE PATENTS TO ISSUE ON THE
LARSON AND ZIMMERMAN APPLICATIONS. 

(2)  UNDER THE AUTOMOTIVE AND SNAP-ON AGREEMENT, SNAP-ON AGREED TO
REASSIGN THE LARSON APPLICATION TO PRECISION AND ACKNOWLEDGED THE
VALIDITY OF THE CLAIMS OF THE PATENTS TO ISSUE ON THE LARSON AND
ZIMMERMAN APPLICATIONS.  AUTOMOTIVE ALSO GAVE SNAP-ON THE RIGHT TO SELL
THE 6,000 WRENCHES THEN ON ORDER FROM PRECISION AND RELEASED SNAP-ON
FROM ANY PAST LIABILITY OR DAMAGES. 

(3)  UNDER THE SNAP-ON AND PRECISION-LARSON AGREEMENT, SNAP-ON
REASSIGNED TO LARSON AND PRECISION WHATEVER TITLE SNAP-ON HAD TO THE
LARSON APPLICATION.  PRECISION AGREED TO MANUFACTURE AND DELIVER TO
SNAP-ON THE 6,000 WRENCHES THEN ON ORDER.  SNAP-ON ALSO ASSENTED TO THE
AUTOMOTIVE AND PRECISION-LARSON AGREEMENT. 

THE LARSON APPLICATION WAS ACCORDINGLY ASSIGNED TO AUTOMOTIVE ON
DECEMBER 20, 1940.  AUTOMOTIVE SUBSEQUENTLY RECEIVED PATENTS ON BOTH
THE LARSON AND ZIMMERMAN APPLICATIONS AFTER MAKING CERTAIN CHANGES. 
THEN PRECISION BEGAN TO MANUFACTURE AND SNAP-ON BEGAN TO SELL A NEW
WRENCH.  AUTOMOTIVE CLAIMED THAT THIS WAS AN INFRINGEMENT OF ITS
PATENTS AND A BREACH OF THE CONTRACTS OF DECEMBER 20, 1940.  THUS THE
SUIT AROSE WHICH IS NOW BEFORE US. 

THE GUIDING DOCTRINE IN THIS CASE IS THE EQUITABLE MAXIM THAT "HE WHO
COMES INTO EQUITY MUST COME WITH CLEAN HANDS."  THIS MAXIM IS FAR MORE
THAN A MERE BANALITY.  IT IS A SELF-IMPOSED ORDINANCE THAT CLOSES THE
DOORS OF A COURT OF EQUITY TO ONE TAINTED WITH INEQUITABLENESS OR BAD
FAITH RELATIVE TO THE MATTER IN WHICH HE SEEKS RELIEF, HOWEVER IMPROPER
MAY HAVE BEEN THE BEHAVIOR OF THE DEFENDANT.  THAT DOCTRINE IS ROOTED
IN THE HISTORICAL CONCEPT OF COURT OF EQUITY AS A VEHICLE FOR
AFFIRMATIVELY ENFORCING THE REQUIREMENTS OF CONSCIENCE AND GOOD FAITH. 
THIS PRESUPPOSES A REFUSAL ON ITS PART TO BE "THE ABETTOR OF
INIQUITY."  BEIN V. HEATH, 6 HOW.  228, 247.  THUS WHILE "EQUITY DOES
NOT DEMAND THAT ITS SUITORS SHALL HAVE LED BLAMELESS LIVES," LOUGHRAN
V. LOUGHRAN, 292 U.S. 216, 229, AS TO OTHER MATTERS, IT DOES REQUIRE
THAT THEY SHALL HAVE ACTED FAIRLY AND WITHOUT FRAUD OR DECEIT AS TO THE
CONTROVERSY IN ISSUE.  KEYSTONE DRILLER CO. V. GENERAL EXCAVATOR CO.,
290 U.S. 240, 245; JOHNSON V. YELLOW CAB CO., 321 U.S. 383, 387; 2
POMEROY, EQUITY JURISPRUDENCE (5TH ED.)  SECS.  379-399.    THIS MAXIM
NECESSARILY GIVES WIDE RANGE TO THE EQUITY COURT'S USE OF DISCRETION IN
REFUSING TO AID THE UNCLEAN LITIGANT.  IT IS "NOT BOUND BY FORMULA OR
RESTRAINED BY ANY LIMITATION THAT TENDS TO TRAMMEL THE FREE AND JUST
EXERCISE OF DISCRETION."  KEYSTONE DRILLER CO. V. GENERAL EXCAVATOR
CO., SUPRA, 245, 246.  ACCORDINGLY ONE'S MISCONDUCT NEED NOT
NECESSARILY HAVE BEEN OF SUCH A NATURE AS TO BE PUNISHABLE AS A CRIME
OR AS TO JUSTIFY LEGAL PROCEEDINGS OF ANY CHARACTER.  ANY WILLFUL ACT
CONCERNING THE CAUSE OF ACTION WHICH RIGHTFULLY CAN BE SAID TO
TRANSGRESS EQUITABLE STANDARDS OF CONDUCT IS SUFFICIENT CAUSE FOR THE
INVOCATION OF THE MAXIM BY THE CHANCELLOR. 

MOREOVER, WHERE A SUIT IN EQUITY CONCERNS THE PUBLIC INTEREST AS WELL
AS THE PRIVATE INTERESTS OF THE LITIGANTS THIS DOCTRINE ASSUMES EVEN
WIDER AND MORE SIGNIFICANT PROPORTIONS.  FOR IF AN EQUITY COURT
PROPERLY USES THE MAXIM TO WITHHOLD ITS ASSISTANCE IN SUCH A CASE IT
NOT ONLY PREVENTS A WRONGDOER FROM ENJOYING THE FRUITS OF HIS
TRANSGRESSION BUT AVERTS AN INJURY TO THE PUBLIC.  THE DETERMINATION OF
WHEN THE MAXIM SHOULD BE APPLIED TO BAR THIS TYPE OF SUIT THUS BECOMES
OF VITAL SIGNIFICANCE.  SEE MORTON SALT CO. V. SUPPIGER CO., 314 U.S.
488, 492-494. 

IN THE INSTANT CASE AUTOMOTIVE HAS SOUGHT TO ENFORCE SEVERAL PATENTS
AND RELATED CONTRACTS.  CLEARLY THESE ARE MATTERS CONCERNING FAR MORE
THAN THE INTERESTS OF THE ADVERSE PARTIES.  THE POSSESSION AND
ASSERTION OF PATENT RIGHTS ARE "ISSUES OF GREAT MOMENT TO THE PUBLIC." 
HAZEL-ATLAS GLASS CO. V. HARTFORD-EMPIRE CO., 322 U.S. 238, 246.  SEE
ALSO MERCOID CORP. V. MID-CONTINENT INVESTMENT CO., 320 U.S. 661, 665;
MORTON SALT CO. V. SUPPIGER CO., SUPRA; UNITED STATES V. MASONITE
CORP., 316 U.S. 265, 278.  A PATENT BY ITS VERY NATURE IS AFFECTED WITH
A PUBLIC INTEREST.  AS RECOGNIZED BY THE CONSTITUTION, IT IS A SPECIAL
PRIVILEGE DESIGNED TO SERVE THE PUBLIC PURPOSE OF PROMOTING THE
"PROGRESS OF SCIENCE AND USEFUL ARTS."  AT THE SAME TIME, A PATENT IS
AN EXCEPTION TO THE GENERAL RULE AGAINST MONOPOLIES AND TO THE RIGHT TO
ACCESS TO A FREE AND OPEN MARKET.  THE FAR-REACHING SOCIAL AND ECONOMIC
CONSEQUENCES OF A PATENT, THEREFORE, GIVE THE PUBLIC A PARAMOUNT
INTEREST IN SEEING THAT PATENT MONOPOLIES SPRING FROM BACKGROUNDS FREE
FROM FRAUD OR OTHER INEQUITABLE CONDUCT AND THAT SUCH MONOPOLIES ARE
KEPT WITHIN THEIR LEGITIMATE SCOPE.  THE FACTS OF THIS CASE MUST
ACCORDINGLY BE MEASURED BY BOTH PUBLIC AND PRIVATE STANDARDS OF
EQUITY.  AND WHEN SUCH MEASUREMENTS ARE MADE, IT BECOMES CLEAR THAT THE
DISTRICT COURT'S ACTION IN DISMISSING THE COMPLAINTS AND COUNTERCLAIMS
"FOR WANT OF EQUITY" WAS MORE THAN JUSTIFIED. 

THE HISTORY OF THE PATENTS AND CONTRACTS IN ISSUE IS STEEPED IN
PERJURY AND UNDISCLOSED KNOWLEDGE OF PERJURY.  LARSON'S APPLICATION WAS
ADMITTEDLY BASED UPON FALSE DATA WHICH DESTROYED WHATEVER JUST CLAIM IT
MIGHT OTHERWISE HAVE HAD TO THE STATUS OF A PATENT.  YET AUTOMOTIVE,
WITH AT LEAST MORAL AND ACTUAL CERTAINTY IF NOT ABSOLUTE PROOF OF THE
FACTS CONCERNING THE PERJURY, CHOSE TO ACT IN DISREGARD OF THE PUBLIC
INTEREST.  INSTEAD OF DOING ALL WITHIN ITS POWER TO REVEAL AND EXPOSE
THE FRAUD, IT PROCURED AN OUTSIDE SETTLEMENT OF THE INTERFERENCE
PROCEEDINGS, ACQUIRED THE LARSON APPLICATION ITSELF, TURNED IT INTO A
PATENT AND BARRED THE OTHER PARTIES FROM EVER QUESTIONING ITS
VALIDITY.  SUCH CONDUCT DOES NOT CONFORM TO MINIMUM ETHICAL STANDARDS
AND DOES NOT JUSTIFY AUTOMOTIVE'S PRESENT ATTEMPT TO ASSERT AND ENFORCE
THESE PERJURY-TAINTED PATENTS AND CONTRACTS. 

AUTOMOTIVE CONTENDS THAT IT DID NOT HAVE POSITIVE AND CONCLUSIVE
KNOWLEDGE OF THE PERJURY UNTIL THE PLEADINGS IN THE INSTANT PROCEEDINGS
WERE FILED AND UNTIL LARSON ADMITTED HIS PERJURY ON PRE-TRIAL
EXAMINATION.  IT CLAIMS THAT PRIOR THERETO IT ONLY HAD THOMASMA'S
AFFIDAVIT AND STATEMENTS, WHICH WERE UNCORROBORATED AND LIKELY TO CARRY
LITTLE WEIGHT AS AGAINST LARSON AND HIS EIGHT WITNESSES.  IT IS FURTHER
POINTED OUT THAT FIDLER SUBMITTED WHAT HE KNEW OF THE FACTS TO AT LEAST
TWO INDEPENDENT ATTORNEYS, BOTH OF WHOM ADVISED HIM THAT THE EVIDENCE
OF PERJURY THAT HE POSSESSED WAS INSUFFICIENT.  FROM THIS IT IS ARGUED,
AS THE CIRCUIT COURT OF APPEALS HELD, THAT WHILE AUTOMOTIVE WAS
"MORALLY CERTAIN THAT THOMASMA'S STORY WAS TRUE" THERE WAS NO DUTY TO
REPORT THIS UNCORROBORATED INFORMATION TO EITHER THE DISTRICT ATTORNEY
OR THE PATENT OFFICE. 

BUT AUTOMOTIVE'S HANDS ARE NOT AUTOMATICALLY CLEANSED BY ITS ALLEGED
FAILURE TO POSSESS SUFFICIENTLY TRUSTWORTHY EVIDENCE OF PERJURY TO
WARRANT SUBMISSION OF THE CASE TO THE DISTRICT ATTORNEY OR TO THE
PATENT OFFICE DURING THE PENDENCY OF THE INTERFERENCE PROCEEDINGS.  THE
IMPORTANT FACT IS THAT AUTOMOTIVE HAD EVERY REASON TO BELIEVE AND DID
BELIEVE THAT LARSON'S APPLICATION WAS FRAUDULENT AND HIS STATEMENTS
PERJURED.  YET IT ACTED IN COMPLETE DISREGARD OF THAT BELIEF.  NEVER
FOR A MOMENT DID AUTOMOTIVE OR ITS REPRESENTATIVES DOUBT THE EXISTENCE
OF THIS FRAUD.  FIDLER SUSPECTED IT SOON AFTER HE KNEW OF LARSON'S
CLAIMS.  HIS SUSPICIONS WERE CONFIRMED BY HIS HIRED INVESTIGATORS. 
THEN THOMASMA REVEALED SUCH INTIMATE AND DETAILED FACTS CONCERNING THE
PERJURY AS TO CONVINCE ALL WHO HEARD HIM, DESPITE CERTAIN RESERVATIONS
ENTERTAINED BY SOME PERSONS CONCERNING HIS TRUSTWORTHINESS.  MOREOVER,
FIDLER WAS WELL AWARE THAT ALBERTS THREATENED TO WITHDRAW AS LARSON'S
COUNSEL IF HE DISCOVERED FROM LARSON THAT THOMASMA'S STORY WAS TRUE AND
THAT ALBERTS IN FACT DID SO WITHDRAW.  THE SUSPECTED PERJURY WAS
FURTHER CONFIRMED BY LARSON'S SUDDEN WILLINGNESS TO CONCEDE PRIORITY
AFTER HE LEARNED OF THOMASMA'S STORY AND BY THE ADMISSIONS BY ALBERTS
AND SNAP-ON THAT ZIMMERMAN "WAS THE PRIOR INVENTOR."  AND THE VERY FACT
THAT FIDLER SAW FIT TO SUBMIT HIS PROOF TO OUTSIDE ATTORNEYS FOR ADVICE
IS AN INDICATION OF THE SUBSTANTIALITY OF HIS BELIEF AS TO LARSON'S
PERJURY.  WITH ALL THIS EVIDENCE BEFORE IT, HOWEVER, AUTOMOTIVE PURSUED
THE FOLLOWING COURSE OF ACTION: 

1.  IT CHOSE TO KEEP SECRET ITS BELIEF AND ALLEGEDLY UNSUBSTANTIAL
PROOF OF THE FACTS CONCERNING LARSON'S PERJURY.  WE NEED NOT SPECULATE
AS TO WHETHER THERE WAS SUFFICIENT PROOF TO PRESENT THE MATTER TO THE
DISTRICT ATTORNEY.  BUT IT IS CLEAR THAT AUTOMOTIVE KNEW AND SUPPRESSED
FACTS THAT, AT THE VERY LEAST, SHOULD HAVE BEEN BROUGHT IN SOME WAY TO
THE ATTENTION OF THE PATENT OFFICE, ESPECIALLY WHEN IT BECAME EVIDENT
THAT THE INTERFERENCE PROCEEDINGS WOULD CONTINUE NO LONGER.  THOSE WHO
HAVE APPLICATIONS PENDING WITH THE PATENT OFFICE OR WHO ARE PARTIES TO
PATENT OFFICE PROCEEDINGS HAVE AN UNCOMPROMISING DUTY TO REPORT TO IT
ALL FACTS CONCERNING POSSIBLE FRAUD OR INEQUITABLENESS UNDERLYING THE
APPLICATIONS IN ISSUE.  CF. CRITES, INC. V. PRUDENTIAL CO., 322 U.S.
408, 415.  THIS DUTY IS NOT EXCUSED BY REASONABLE DOUBTS AS TO THE
SUFFICIENCY OF THE PROOF OF THE INEQUITABLE CONDUCT NOR BY RESORT TO
INDEPENDENT LEGAL ADVICE.  PUBLIC INTEREST DEMANDS THAT ALL FACTS
RELEVANT TO SUCH MATTERS BE SUBMITTED FORMALLY OR INFORMALLY TO THE
PATENT OFFICE, WHICH CAN THEN PASS UPON THE SUFFICIENCY OF THE
EVIDENCE.  ONLY IN THIS WAY CAN THAT AGENCY ACT TO SAFEGUARD THE PUBLIC
IN THE FIRST INSTANCE AGAINST FRAUDULENT PATENT MONOPOLIES.  ONLY IN
THAT WAY CAN THE PATENT OFFICE AND THE PUBLIC ESCAPE FROM BEING CLASSED
AMONG THE "MUTE AND HELPLESS VICTIMS OF DECEPTION AND FRAUD."  HAZEL
ATLAS GLASS CO. V. HARTFORD-EMPIRE CO., SUPRA, 246. 

2.  INSTEAD OF PURSUING THE INTERFERENCE PROCEEDINGS AND PROVING THE
FACT THAT ZIMMERMAN'S CLAIMS HAD PRIORITY OVER THOSE ASSERTED BY
LARSON, AUTOMOTIVE CHOSE TO ENTER INTO AN OUTSIDE SETTLEMENT WITH
LARSON, PRECISION AND SNAP-ON, WHEREBY LARSON CONCEDED PRIORITY. 
OUTSIDE SETTLEMENTS OF INTERFERENCE PROCEEDINGS ARE NOT ORDINARILY
ILLEGAL.  BUT WHERE, AS HERE, THE SETTLEMENT IS GROUNDED UPON KNOWLEDGE
OR REASONABLE BELIEF OF PERJURY WHICH IS NOT REVEALED TO THE PATENT
OFFICE OR TO ANY OTHER PUBLIC REPRESENTATIVE, THE SETTLEMENT LACKS THAT
EQUITABLE NATURE WHICH ENTITLES IT TO BE ENFORCED AND PROTECTED IN A
COURT OF EQUITY. 

3.  BY THE TERMS OF THE SETTLEMENT, AUTOMOTIVE SECURED THE PERJURED
LARSON APPLICATION AND EXACTED PROMISES FROM THE OTHER PARTIES NEVER TO
QUESTION THE VALIDITY OF ANY PATENT THAT MIGHT BE ISSUED ON THAT
APPLICATION.  AUTOMOTIVE THEN MADE NUMEROUS CHANGES AND EXPANSIONS AS
TO THE CLAIMS IN THE APPLICATION AND EVENTUALLY SECURED A PATENT ON IT
WITHOUT EVER ATTEMPTING TO REVEAL TO THE PATENT OFFICE OR TO ANYONE
ELSE THE FACTS IT POSSESSED CONCERNING THE APPLICATION'S FRAUDULENT
ANCESTRY.  AUTOMOTIVE THUS ACTED TO COMPOUND AND ACCENTUATE THE EFFECTS
OF LARSON'S PERJURY. 

THESE FACTS ALL ADD UP TO THE INESCAPABLE CONCLUSION THAT AUTOMOTIVE
HAS NOT DISPLAYED THAT STANDARD OF CONDUCT REQUISITE TO THE MAINTENANCE
OF THIS SUIT IN EQUITY.  THAT THE ACTIONS OF LARSON AND PRECISION MAY
HAVE BEEN MORE REPREHENSIBLE IS IMMATERIAL.  THE PUBLIC POLICY AGAINST
THE ASSERTION AND ENFORCEMENT OF PATENT CLAIMS INFECTED WITH FRAUD AND
PERJURY IS TOO GREAT TO BE OVERRIDDEN BY SUCH A CONSIDERATION. 
AUTOMOTIVE KNEW OF AND SUSPECTED THE PERJURY AND FAILED TO ACT SO AS TO
UPROOT IT AND DESTROY ITS EFFECTS.  INSTEAD, AUTOMOTIVE ACTED
AFFIRMATIVELY TO MAGNIFY AND INCREASE THOSE EFFECTS.  SUCH INEQUITABLE
CONDUCT IMPREGNATED AUTOMOTIVE'S ENTIRE CAUSE OF ACTION AND JUSTIFIED
DISMISSAL BY RESORT TO THE UNCLEAN HANDS DOCTRINE.  KEYSTONE DRILLER
CO. V. GENERAL EXCAVATOR CO., SUPRA. 

WE CONCLUDE, THEREFORE, THAT THE EVIDENCE CLEARLY SUPPORTED THE
DISTRICT COURT'S FINDINGS OF FACT AND THAT THESE FINDINGS JUSTIFIED ITS
CONCLUSIONS OF LAW.  THE COURT BELOW ERRED IN REVERSING ITS JUDGMENT. 
REVERSED. 

FN1  THE THREE PATENTS INVOLVED ARE NO. 2,279,792, ISSUED ON APRIL
14, 1942, TO KENNETH R. LARSON; NO. 2,283,888, ISSUED ON MAY 19, 1942,
TO H. W. ZIMMERMAN; AND REISSUE NO. 22,219, ISSUED ON NOVEMBER 3, 1942,
TO H. W. ZIMMERMAN, BASED ON ORIGINAL NO. 2,269,503. 

FN2  SNAP-ON AGREED TO FILE THE PATENT APPLICATION FOR LARSON, WHO
WAS WITHOUT FUNDS, AND TOOK AN ASSIGNMENT OF THE LARSON APPLICATION AS
SECURITY FOR PERFORMANCE OF THE AGREEMENT TO SUPPLY WRENCHES. 

FN3  ALBERTS APPARENTLY NEVER WITHDREW FORMALLY AS LARSON'S ATTORNEY
IN THE INTERFERENCE PROCEEDINGS BY FILING A DOCUMENT TO THAT EFFECT IN
THE PATENT OFFICE. 

FN4  BOTH LARSON AND CARLSEN TESTIFIED THAT THEY TOLD HOBBS OF THE
PERJURY AND OF THE PREDICAMENT THEY WERE IN, STATING TO HIM THAT THEY
DID NOT WANT TO BE TURNED OVER TO THE DISTRICT ATTORNEY.  HOBBS,
HOWEVER, DENIED THAT THEY INFORMED HIM OF THESE MATTERS.  IT WAS AT THE
REQUEST OF HOBBS THAT THE DISTRICT COURT'S ORAL OPINION WAS WITHDRAWN
IN ORDER THAT, IN THE WORDS OF THE DISTRICT COURT, IT WOULD NOT BE
"CONSTRUED AS IMPLYING THAT MR. HOBBS HAD WILLFULLY GIVEN FALSE
TESTIMONY OR HAD BEEN GUILTY OF PROFESSIONAL MISCONDUCT."  THE COURT
FURTHER SAID THAT THE RECORD DEMONSTRATED "THAT THE WITNESS HOBBS DID
NOT TESTIFY FALSELY."  ASSUMING THAT HOBBS GAVE NO FALSE TESTIMONY,
HOWEVER, WE DO NOT CONSIDER THAT FACT TO BE OF CONTROLLING SIGNIFICANCE
IN THIS CASE. 

MR. JUSTICE ROBERTS. 

I THINK THE WRIT SHOULD BE DISMISSED OR THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS AFFIRMED.  THE CASE OUGHT NOT TO HAVE BEEN TAKEN BY
THIS COURT.  IT INVOLVES MERELY THE APPLICATION OF ACKNOWLEDGED
PRINCIPLES OF LAW TO THE FACTS DISCLOSED BY THE RECORD.  DECISION HERE
SETTLES NOTHING SAVE THE MERITS OR DEMERITS OF THE CONDUCT OF THE
RESPECTIVE PARTIES.  IN MY VIEW IT IS NOT THE FUNCTION OF THIS COURT TO
WEIGH THE FACTS FOR THE THIRD TIME IN ORDER TO CHOOSE BETWEEN
LITIGANTS, WHERE APPRAISAL OF THE CONDUCT OF EACH MUST AFFECT THE
RESULT. 

MR. JUSTICE JACKSON IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED, AS HE TAKES THE VIEW OF THE FACTS SET FORTH IN THE OPINION OF
THE COURT BELOW.  143 F.2D 332.  332. 
..END :








CRAMER V. UNITED STATES, 325 U.S. 1 


NO. 13.  ARGUED MARCH 9, 1944.  REARGUED NOVEMBER 6, 1944.  - DECIDED
APRIL 23, 1945.  - 137 F.2D 888, REVERSED. 


1.  IN A PROSECUTION UPON AN INDICTMENT CHARGING TREASON BY ADHERING
TO ENEMIES OF THE UNITED STATES, GIVING THEM AID AND COMFORT, IN
VIOLATION OF SEC. 1 OF THE CRIMINAL CODE, THE OVERT ACT RELIED ON, OF
WHICH THE CONSTITUTION REQUIRES PROOF BY TWO WITNESSES, MUST BE AT
LEAST AN ACT OF THE ACCUSED SUFFICIENT, IN ITS SETTING, TO SUSTAIN A
FINDING THAT THE ACCUSED ACTUALLY GAVE AID AND COMFORT TO THE ENEMY. 
P. 34. 

2.  THE PROTECTION OF THE TWO-WITNESS RULE OF THE CONSTITUTION IN
SUCH CASE EXTENDS AT LEAST TO ALL ACTS OF THE DEFENDANT WHICH ARE USED
TO DRAW INCRIMINATING INFERENCES THAT AID AND COMFORT HAVE BEEN GIVEN. 
P. 33. 

3.  IN A PROSECUTION UPON AN INDICTMENT CHARGING TREASON BY ADHERING
TO ENEMIES OF THE UNITED STATES, GIVING THEM AID AND COMFORT, IN
VIOLATION OF SEC. 1 OF THE CRIMINAL CODE, TWO OF THE OVERT ACTS ALLEGED
AND RELIED ON WERE: 

"1.  ANTHONY CRAMER, THE DEFENDANT HEREIN, ON OR ABOUT JUNE 23, 1942,
AT THE SOUTHERN DISTRICT OF NEW YORK AND WITHIN THE JURISDICTION OF
THIS COURT, DID MEET WITH WERNER THIEL AND EDWARD JOHN KERLING, ENEMIES
OF THE UNITED STATES, AT THE TWIN OAKS INN AT LEXINGTON AVENUE AND 44TH
STREET, IN THE CITY AND STATE OF NEW YORK, AND DID CONFER, TREAT, AND
COUNSEL WITH SAID WERNER THIEL AND EDWARD JOHN KERLING FOR A PERIOD OF
TIME FOR THE PURPOSE OF GIVING AND WITH INTENT TO GIVE AID AND COMFORT
TO SAID ENEMIES, WERNER THIEL AND EDWARD JOHN KERLING. 

"2.  ANTHONY CRAMER, THE DEFENDANT HEREIN, ON OR ABOUT JUNE 23, 1942,
AT THE SOUTHERN DISTRICT OF NEW YORK AND WITHIN THE JURISDICTION OF
THIS COURT, DID ACCOMPANY, CONFER, TREAT, AND COUNSEL WITH WERNER
THIEL, AN ENEMY OF THE UNITED STATES, FOR A PERIOD OF TIME AT THE TWIN
OAKS INN AT LEXINGTON AVENUE AND 44TH STREET, AND AT THOMPSON'S
CAFETERIA ON 42ND STREET BETWEEN LEXINGTON AND VANDERBILT AVENUES, BOTH
IN THE CITY AND STATE OF NEW YORK, FOR THE PURPOSE OF GIVING AND WITH
INTENT TO GIVE AID AND COMFORT TO SAID ENEMY, WERNER THIEL." 

BY DIRECT TESTIMONY OF TWO OR MORE WITNESSES IT WAS ESTABLISHED THAT
CRAMER MET THIEL AND KERLING ON THE OCCASIONS AND AT THE PLACES
CHARGED; THAT THEY DRANK TOGETHER; AND THAT THEY ENGAGED LONG AND
EARNESTLY IN CONVERSATION.  THERE WAS NO PROOF BY TWO WITNESSES OF WHAT
THEY SAID OR IN WHAT LANGUAGE THEY CONVERSED; NO SHOWING THAT CRAMER
GAVE THEM ANY INFORMATION WHATEVER OF VALUE TO THEIR MISSION OR THAT HE
HAD ANY TO GIVE; NO SHOWING OF ANY EFFORT AT SECRECY, THEY HAVING MET
IN PUBLIC PLACES; AND NO EVIDENCE THAT CRAMER FURNISHED THEM SHELTER,
SUSTENANCE OR SUPPLIES, OR THAT HE GAVE THEM ENCOURAGEMENT OR COUNSEL,
OR EVEN PAID FOR THEIR DRINKS. 

HELD THAT OVERT ACTS 1 AND 2 AS PROVED WERE INSUFFICIENT TO SUPPORT A
FINDING THAT THE ACCUSED HAD GIVEN AID AND COMFORT TO THE ENEMY, AND
THEREFORE INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION.  PP. 36-37,
48. 

CRAMER V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 320 U.S. 730, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
CONVICTION OF TREASON. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

ANTHONY CRAMER, THE PETITIONER, STANDS CONVICTED OF VIOLATING SECTION
1 OF THE CRIMINAL CODE, WHICH PROVIDES:  "WHOEVER, OWING ALLEGIANCE TO
THE UNITED STATES, LEVIES WAR AGAINST THEM OR ADHERES TO THEIR ENEMIES,
GIVING THEM AID AND COMFORT WITHIN THE UNITED STATES OR ELSEWHERE, IS
GUILTY OF TREASON."  FN1 

CRAMER OWED ALLEGIANCE TO THE UNITED STATES.  A GERMAN BY BIRTH, HE
HAD BEEN A RESIDENT OF THE UNITED STATES SINCE 1925 AND WAS NATURALIZED
IN 1936.  PROSECUTION RESULTED FROM HIS ASSOCIATION WITH TWO OF THE
GERMAN SABOTEURS WHO IN JUNE 1942 LANDED ON OUR SHORES FROM ENEMY
SUBMARINES TO DISRUPT INDUSTRY IN THE UNITED STATES AND WHOSE CASES WE
CONSIDERED IN EX PARTE QUIRIN, 317 U.S. 1.  ONE OF THOSE, SPARED FROM
EXECUTION, APPEARED AS A GOVERNMENT WITNESS ON THE TRIAL OF CRAMER.  HE
TESTIFIED THAT WERNER THIEL AND EDWARD KERLING WERE MEMBERS OF THAT
SABOTAGE CREW, DETAILED THEIR PLOT, AND DESCRIBED THEIR PREPARATIONS
FOR ITS CONSUMMATION. 

CRAMER WAS CONSCRIPTED INTO AND SERVED IN THE GERMAN ARMY AGAINST THE
UNITED STATES IN 1918.  AFTER THE WAR HE CAME TO THIS COUNTRY,
INTENDING TO REMAIN PERMANENTLY.  SO FAR AS APPEARS, HE HAS BEEN OF
GOOD BEHAVIOR, NEVER BEFORE IN TROUBLE WITH THE LAW.  HE WAS STUDIOUS
AND INTELLIGENT, EARNING $45 A WEEK FOR WORK IN A BOILER ROOM AND
LIVING ACCORDINGLY. 

THERE WAS NO EVIDENCE, AND THE GOVERNMENT MAKES NO CLAIM, THAT HE HAD
FOREKNOWLEDGE THAT THE SABOTEURS WERE COMING TO THIS COUNTRY OR THAT HE
CAME INTO ASSOCIATION WITH THEM BY PREARRANGEMENT.  CRAMER, HOWEVER,
HAD KNOWN INTIMATELY THE SABOTEUR WERNER THIEL WHILE THE LATTER LIVED
IN THIS COUNTRY.  THEY HAD WORKED TOGETHER, ROOMED TOGETHER, AND
JOINTLY HAD VENTURED IN A SMALL AND LUCKLESS DELICATESSEN ENTERPRISE. 
THIEL EARLY AND FRANKLY AVOWED ADHERENCE TO THE NATIONAL SOCIALIST
MOVEMENT IN GERMANY; HE FORESAW THE WAR AND RETURNED IN 1941 FOR THE
PURPOSE OF HELPING GERMANY.  CRAMER DID NOT DO SO.  HOW MUCH HE
SYMPATHIZED WITH THE DOCTRINES OF THE NAZI PARTY IS NOT CLEAR.  HE
BECAME AT ONE TIME, IN INDIANA, A MEMBER AND OFFICER OF THE FRIENDS OF
NEW GERMANY, WHICH WAS A PREDECESSOR OF THE BUND.  HOWEVER, HE WITHDREW
IN 1935 BEFORE IT BECAME THE BUND.  HE SAYS THERE WAS SOME SWINDLE
ABOUT IT THAT HE DID NOT LIKE AND ALSO THAT HE DID NOT LIKE THEIR
DRILLING AND "RADICAL ACTIVITIES."  IN 1936 HE MADE A TRIP TO GERMANY,
ATTENDED THE OLYMPIC GAMES, AND SAW SOME OF THE BUNDSMEN FROM THIS
COUNTRY WHO WENT THERE AT THAT TIME FOR CONFERENCES WITH NAZI PARTY
OFFICIALS.  THERE IS NO SUGGESTION THAT CRAMER WHILE THERE HAD ANY SUCH
ASSOCIATIONS.  HE DOES NOT APPEAR TO HAVE BEEN REGARDED AS A PERSON OF
THAT CONSEQUENCE.  HIS FRIENDS AND ASSOCIATES IN THIS COUNTRY WERE
LARGELY GERMAN.  HIS SOCIAL LIFE IN NEW YORK CITY, WHERE HE RECENTLY
HAD LIVED, SEEMS TO HAVE BEEN CENTERED AROUND KOLPING HOUSE, A GERMAN
CATHOLIC RECREATIONAL CENTER. 

CRAMER RETAINED A STRONG AFFECTION FOR HIS FATHERLAND.  HE
CORRESPONDED IN GERMAN WITH HIS FAMILY AND FRIENDS THERE.  BEFORE THE
UNITED STATES ENTERED THE WAR HE EXPRESSED STRONG SYMPATHY WITH GERMANY
IN ITS CONFLICT WITH OTHER EUROPEAN POWERS.  BEFORE THE ATTACK UPON
PEARL HARBOR, CRAMER OPENLY OPPOSED PARTICIPATION BY THIS COUNTRY IN
THE WAR AGAINST GERMANY.  HE REFUSED TO WORK ON WAR MATERIALS.  HE
EXPRESSED CONCERN ABOUT BEING DRAFTED INTO OUR ARMY AND "MISUSED" FOR
PURPOSES OF "WORLD CONQUEST."  THERE IS NO PROOF, HOWEVER, EXCEPT FOR
THE MATTER CHARGED IN THE INDICTMENT, OF ANY ACT OR UTTERANCE DISLOYAL
TO THIS COUNTRY AFTER WE ENTERED THE WAR. 

COMING DOWN TO THE TIME OF THE ALLEGED TREASON, THE MAIN FACTS, AS
RELATED ON THE WITNESS STAND BY CRAMER, ARE NOT SERIOUSLY IN DISPUTE. 
HE WAS LIVING IN NEW YORK; AND IN RESPONSE TO A CRYPTIC NOTE LEFT UNDER
HIS DOOR, WHICH DID NOT MENTION THIEL, HE WENT TO THE GRAND CENTRAL
STATION.  THERE THIEL APPEARED.  CRAMER HAD SUPPOSED THAT THIEL WAS IN
GERMANY, KNOWING THAT HE HAD LEFT THE UNITED STATES SHORTLY BEFORE THE
WAR TO GO THERE.  TOGETHER THEY WENT TO PUBLIC PLACES AND HAD SOME
DRINKS.  CRAMER DENIES THAT THIEL REVEALED HIS MISSION OF SABOTAGE. 
CRAMER SAID TO THIEL THAT HE MUST HAVE COME TO AMERICA BY SUBMARINE,
BUT THIEL REFUSED TO CONFIRM IT, ALTHOUGH HIS ATTITUDE INCREASED
CRAMER'S SUSPICION.  THIEL PROMISED TO TELL LATER HOW HE CAME TO THIS
COUNTRY.  THIEL ASKED ABOUT A GIRL WHO WAS A MUTUAL ACQUAINTANCE AND
WHOM THIEL HAD ENGAGED TO MARRY PREVIOUS TO HIS GOING TO GERMANY. 
CRAMER KNEW WHERE SHE WAS, AND OFFERED TO AND DID WRITE TO HER TO COME
TO NEW YORK, WITHOUT DISCLOSING IN THE LETTER THAT THIEL HAD ARRIVED. 
THIEL SAID THAT HE HAD IN HIS POSSESSION ABOUT $3,600, BUT DID NOT
DISCLOSE THAT IT WAS PROVIDED BY THE GERMAN GOVERNMENT, SAYING ONLY
THAT ONE COULD GET MONEY IN GERMANY IF HE HAD THE RIGHT CONNECTIONS. 
THIEL OWED CRAMER AN OLD DEBT OF $200.  HE GAVE CRAMER HIS MONEY BELT
CONTAINING SOME $3,600, FROM WHICH CRAMER WAS TO BE PAID.  CRAMER
AGREED TO AND DID PLACE THE REST IN HIS OWN SAFE-DEPOSIT BOX, EXCEPT A
SUM WHICH HE KEPT IN HIS ROOM IN CASE THIEL SHOULD WANT IT QUICKLY. 

AFTER THE SECOND OF THESE MEETINGS THIEL AND KERLING, WHO WAS PRESENT
BRIEFLY AT ONE MEETING, WERE ARRESTED.  CRAMER'S EXPECTATION OF MEETING
THIEL LATER AND OF BRINGING HIM AND HIS FIANCEE TOGETHER WAS FOILED. 
SHORTLY THEREAFTER CRAMER WAS ARRESTED, TRIED, AND FOUND GUILTY.  THE
TRIAL JUDGE AT THE TIME OF SENTENCING SAID: 

"I SHALL NOT IMPOSE THE MAXIMUM PENALTY OF DEATH.  IT DOES NOT APPEAR
THAT THIS DEFENDANT CRAMER WAS AWARE THAT THIEL AND KERLING WERE IN
POSSESSION OF EXPLOSIVES OR OTHER MEANS FOR DESTROYING FACTORIES AND
PROPERTY IN THE UNITED STATES OR PLANNED TO DO THAT. 

"FROM THE EVIDENCE IT APPEARS THAT CRAMER HAD NO MORE GUILTY
KNOWLEDGE OF ANY SUBVERSIVE PURPOSES ON THE PART OF THIEL OR KERLING
THAN A VAGUE IDEA THAT THEY CAME HERE FOR THE PURPOSE OF ORGANIZING PRO
GERMAN PROPAGANDA AND AGITATION.  IF THERE WERE ANY PROOF THAT THEY HAD
CONFIDED IN HIM WHAT THEIR REAL PURPOSES WERE, OR THAT HE KNEW OR
BELIEVED WHAT THEY REALLY WERE, I SHOULD NOT HESITATE TO IMPOSE THE
DEATH PENALTY." 

CRAMER'S CASE RAISES QUESTIONS AS TO APPLICATION OF THE
CONSTITUTIONAL PROVISION THAT "TREASON AGAINST THE UNITED STATES SHALL
CONSIST ONLY IN LEVYING WAR AGAINST THEM, OR IN ADHERING TO THEIR
ENEMIES, GIVING THEM AID AND COMFORT.  NO PERSON SHALL BE CONVICTED OF
TREASON UNLESS ON THE TESTIMONY OF TWO WITNESSES TO THE SAME OVERT ACT,
OR ON CONFESSION IN OPEN COURT."  FN2 

CRAMER'S CONTENTION MAY BE WELL STATED IN WORDS OF JUDGE LEARNED HAND
IN UNITED STATES V. ROBINSON:  FN3 

"NEVERTHELESS A QUESTION MAY INDEED BE RAISED WHETHER THE PROSECUTION
MAY LAY AS AN OVERT ACT A STEP TAKEN IN EXECUTION OF THE TRAITOROUS
DESIGN, INNOCENT IN ITSELF, AND GETTING ITS TREASONABLE CHARACTER ONLY
FROM SOME COVERT AND UNDECLARED INTENT.  IT IS TRUE THAT IN
PROSECUTIONS FOR CONSPIRACY UNDER OUR FEDERAL STATUTE IT IS WELL
SETTLED THAT ANY STEP IN PERFORMANCE OF THE CONSPIRACY IS ENOUGH,
THOUGH IT IS INNOCENT EXCEPT FOR ITS RELATION TO THE AGREEMENT.  I
DOUBT VERY MUCH WHETHER THAT RULE HAS ANY APPLICATION TO THE CASE OF
TREASON, WHERE THE REQUIREMENT AFFECTED THE CHARACTER OF THE PLEADING
AND PROOF, RATHER THAN ACCORDED A SEASON OF REPENTANCE BEFORE THE CRIME
SHOULD BE COMPLETE.  LORD READING IN HIS CHARGE IN CASEMENT'S CASE USES
LANGUAGE WHICH ACCORDS WITH MY UNDERSTANDING: 

"'OVERT ACTS ARE SUCH ACTS AS MANIFEST A CRIMINAL INTENTION AND TEND
TOWARDS THE ACCOMPLISHMENT OF THE CRIMINAL OBJECT.  THEY ARE ACTS BY
WHICH THE PURPOSE IS MANIFESTED AND THE MEANS BY WHICH IT IS INTENDED
TO BE FULFILLED.'"  FN4 

THE GOVERNMENT, HOWEVER, CONTENDS FOR, AND THE COURT BELOW HAS
AFFIRMED, THIS CONVICTION UPON A CONTRARY PRINCIPLE N5.  IT SAID:  "WE
BELIEVE IN SHORT THAT NO MORE NEED BE LAID FOR AN OVERT ACT OF TREASON
THAN FOR AN OVERT ACT OF CONSPIRACY  ...  HENCE WE HOLD THE OVERT ACTS
RELIED ON WERE SUFFICIENT TO BE SUBMITTED TO THE JURY, EVEN THOUGH THEY
PERHAPS MAY HAVE APPEARED AS INNOCENT ON THEIR FACE."  A SIMILAR
CONCLUSION WAS REACHED IN UNITED STATES V. FRICKE; FN6  IT IS:  "AN
OVERT ACT IN ITSELF MAY BE A PERFECTLY INNOCENT ACT STANDING BY ITSELF;
IT MUST BE IN SOME MANNER IN FURTHERANCE OF THE CRIME." 

AS LOWER COURTS THUS HAVE TAKEN CONFLICTING POSITIONS, OR, WHERE THE
ISSUE WAS LESS CLEARLY DRAWN, HAVE DEALT WITH THE PROBLEM AMBIGUOUSLY,
FN7  WE GRANTED CERTIORARI  FN8  AND AFTER ARGUMENT AT THE OCTOBER 1943
TERM WE INVITED REARGUMENT ADDRESSED TO SPECIFIC QUESTIONS.  FN9 SINCE
OUR PRIMARY QUESTION HERE IS THE MEANING OF THE CONSTITUTIONAL
PROVISION, WE TURN TO ITS SOLUTION BEFORE CONSIDERING ITS APPLICATION
TO THE FACTS OF THIS CASE. 

       I 

WHEN OUR FOREFATHERS TOOK UP THE TASK OF FORMING AN INDEPENDENT
POLITICAL ORGANIZATION FOR NEW WORLD SOCIETY, NO ONE OF THEM APPEARS TO
HAVE DOUBTED THAT TO BRING INTO BEING A NEW GOVERNMENT WOULD ORIGINATE
A NEW ALLEGIANCE FOR ITS CITIZENS AND INHABITANTS.  NOR WERE THEY
RELUCTANT TO PUNISH AS TREASON ANY GENUINE BREACH OF ALLEGIANCE, AS
EVERY GOVERNMENT TIME OUT OF MIND HAD DONE.  THE BETRAYAL OF WASHINGTON
BY ARNOLD WAS FRESH IN MIND.  THEY WERE FAR MORE AWAKE TO POWERFUL
ENEMIES WITH DESIGNS ON THIS CONTINENT THAN SOME OF THE INTERVENING
GENERATIONS HAVE BEEN.  ENGLAND WAS ENTRENCHED IN CANADA TO THE NORTH
AND SPAIN HAD REPOSSESSED FLORIDA TO THE SOUTH, AND EACH HAD BEEN THE
SCENE OF INVASION OF THE COLONIES; THE KING OF FRANCE HAD BUT LATELY
BEEN DISPOSSESSED IN THE OHIO VALLEY; SPAIN CLAIMED THE MISSISSIPPI
VALLEY; AND, EXCEPT FOR THE SEABOARD, THE SETTLEMENTS WERE SURROUNDED
BY INDIANS - NOT NEGLIGIBLE AS ENEMIES THEMSELVES, AND ESPECIALLY
THREATENING WHEN ALLIED TO EUROPEAN FOES.  THE PROPOSED NATIONAL
GOVERNMENT COULD NOT FOR SOME YEARS BECOME FIRMLY SEATED IN THE
TRADITION OR IN THE HABITS OF THE PEOPLE.  THERE IS NO EVIDENCE THAT
THE FOREFATHERS INTENDED TO WITHDRAW THE TREASON OFFENSE FROM USE AS AN
EFFECTIVE INSTRUMENT OF THE NEW NATION'S SECURITY AGAINST TREACHERY
THAT WOULD AID EXTERNAL ENEMIES. 

THE FOREFATHERS ALSO HAD SUFFERED FROM DISLOYALTY.  SUCCESS OF THE
REVOLUTION HAD BEEN THREATENED BY THE ADHERENCE OF A CONSIDERABLE PART
OF THE POPULATION TO THE KING.  THE CONTINENTAL CONGRESS ADOPTED A
RESOLUTION AFTER A REPORT BY ITS "COMMITTEE ON SPIES"  FN10  WHICH IN
EFFECT DECLARED THAT ALL PERSONS RESIDING WITHIN ANY COLONY OWED
ALLEGIANCE TO IT, AND THAT IF ANY SUCH PERSONS ADHERED TO THE KING OF
GREAT BRITAIN, GIVING HIM AID AND COMFORT, THEY WERE GUILTY OF TREASON,
AND WHICH URGED THE COLONIES TO PASS LAWS FOR PUNISHMENT OF SUCH
OFFENDERS "AS SHALL BE PROVABLY ATTAINTED OF OPEN DEED."  FN11  MANY OF
THE COLONIES COMPLIED, AND A VARIETY OF LAWS, MOSTLY MODELED ON ENGLISH
LAW, RESULTED.  FN12  SOME OF THE LEGISLATION IN LATER YEARS BECAME SO
BROAD AND LOOSE AS TO MAKE TREASON OF MERE UTTERANCE OF OPINION.  FN13
MANY A CITIZEN IN A TIME OF UNSETTLED AND SHIFTING LOYALTIES WAS THUS
THREATENED UNDER ENGLISH LAW WHICH MADE HIM GUILTY OF TREASON IF HE
ADHERED TO THE GOVERNMENT OF HIS COLONY AND ALSO UNDER COLONIAL LAW
WHICH MADE HIM GUILTY OF TREASON IF HE ADHERED TO HIS KING.  FN14  NOT
A FEW OF THESE PERSONS WERE SUBJECTED TO CONFISCATION OF PROPERTY OR
OTHER HARSH TREATMENT BY THE REVOLUTIONISTS UNDER LOCAL LAWS; NONE,
HOWEVER, SO FAR AS APPEARS, TO CAPITAL PUNISHMENT.  FN15 

BEFORE THIS REVOLUTIONARY EXPERIENCE THERE WERE SCATTERED TREASON
PROSECUTIONS IN THE COLONIES, FN16  USUALLY NOT WELL REPORTED.  SOME
COLONIES HAD ADOPTED TREASON STATUTES MODELED ON ENGLISH LEGISLATION. 
FN17  BUT THE EARLIER COLONIAL EXPERIENCE SEEMS TO HAVE BEEN REGARDED
AS OF A PIECE WITH THAT OF ENGLAND AND APPEARS NOT TO HAVE MUCH
INFLUENCED THE FRAMERS IN THEIR DEALINGS WITH THE SUBJECT. 

HOWEVER, THEIR EXPERIENCE WITH TREASON ACCUSATIONS HAD BEEN MANY
SIDED.  MORE THAN A FEW OF THEM WERE DESCENDANTS OF THOSE WHO HAD FLED
FROM MEASURES AGAINST SEDITION AND ITS ECCLESIASTIC COUNTERPART,
HERESY.  NOW THE TREASON OFFENSE WAS UNDER REVISION BY A CONVENTION
WHOSE MEMBERS ALMOST TO A MAN HAD THEMSELVES BEEN GUILTY OF TREASON
UNDER ANY INTERPRETATION OF BRITISH LAW.  FN18  THEY NOT ONLY HAD
LEVIED WAR AGAINST THEIR KING THEMSELVES, BUT THEY HAD CONDUCTED A
LIVELY EXCHANGE OF AID AND COMFORT WITH FRANCE, THEN ENGLAND'S ANCIENT
ENEMY.  EVERY STEP IN THE GREAT WORK OF THEIR LIVES FROM THE FIRST MILD
PROTESTS AGAINST KINGLY MISRULE TO THE FINAL ACT OF SEPARATION HAD BEEN
TAKEN UNDER THE THREAT OF TREASON CHARGES.  FN19  THE DECLARATION OF
INDEPENDENCE MAY SEEM CRYPTIC IN DENOUNCING GEORGE III "FOR
TRANSPORTING US BEYOND SEAS TO BE TRIED FOR PRETENDED OFFENSES" BUT THE
SPECIFIC GRIEVANCE WAS RECITED BY THE CONTINENTAL CONGRESS NEARLY TWO
YEARS BEFORE IN SAYING THAT "...  IT HAS LATELY BEEN RESOLVED IN
PARLIAMENT, THAT BY FORCE OF A STATUTE, MADE IN THE THIRTY-FIFTH YEAR
OF THE REIGN OF KING HENRY THE EIGHTH, COLONISTS MAY BE TRANSPORTED TO
ENGLAND, AND TRIED THERE UPON ACCUSATIONS FOR TREASONS, AND
MISPRISIONS, OR CONCEALMENTS OF TREASONS COMMITTED IN THE COLONIES; AND
BY A LATE STATUTE, SUCH TRIALS HAVE BEEN DIRECTED IN CASES THEREIN
MENTIONED."  FN20    THE CONVENTION NUMBERED AMONG ITS MEMBERS MEN
FAMILIAR WITH GOVERNMENT IN THE OLD WORLD, AND THEY LOOKED BACK UPON A
LONG HISTORY OF USE AND ABUSE OF THE TREASON CHARGE.  FN21  THE ENGLISH
STREAM OF THOUGHT CONCERNING TREASONS BEGAN TO FLOW IN FAIRLY DEFINABLE
CHANNELS IN 1351 WITH THE ENACTMENT OF THE GREAT TREASON ACT, 25 EDW. 
III, STAT. 5, CH. 2.  FN22  THAT WAS A MONUMENTAL PIECE OF LEGISLATION
SEVERAL TIMES REFERRED TO IN THE DELIBERATIONS OF THE CONVENTION.  IT
CUT A BENCH-MARK BY WHICH THE ENGLISH-SPEAKING WORLD TESTED THE LEVEL
OF ITS THOUGHT ON THE SUBJECT FN23  UNTIL OUR OWN ABRUPT DEPARTURE FROM
IT IN 1789, AND AFTER 600 YEARS IT STILL IS THE LIVING LAW OF TREASON
IN ENGLAND.  ROGER CASEMENT IN 1917 FORFEITED HIS LIFE FOR VIOLATING
IT.  FN24  WE, OF COURSE, CAN MAKE NO INDEPENDENT JUDGMENT AS TO THE
INWARD MEANINGS OF THE TERMS USED IN A SIX-CENTURY-OLD STATUTE, WRITTEN
IN A FORM OF NORMAN FRENCH THAT HAD BECOME OBSOLETE LONG BEFORE OUR
REVOLUTION.  WE CAN READ THIS STATUTE ONLY AS OUR FOREBEARS READ IT -
THROUGH THE EYES OF SUCCEEDING GENERATIONS OF ENGLISH JUDGES, TO WHOM
IT HAS BEEN THE CORE OF ALL DECISION, AND OF COMMON-LAW COMMENTATORS,
TO WHOM IT HAS BEEN THE TEXT.  FN25 

ADJUDICATED CASES IN ENGLISH HISTORY GENERALLY HAVE DEALT WITH THE
OFFENSE OF COMPASSING THE MONARCH'S DEATH; ONLY ELEVEN REPORTED ENGLISH
CASES ANTEDATING THE CONSTITUTION ARE CITED AS INVOLVING DISTINCT
CHARGES OF ADHERENCE TO THE KING'S ENEMIES.  FN26  WHEN CONSTRUCTIVE
TREASONS WERE NOT JOINED ON THE FACE OF THE INDICTMENT, IT IS NOT
POSSIBLE TO SAY HOW FAR THEY WERE JOINED IN THE MINDS OF THE JUDGES. 
NO DECISION APPEARS TO HAVE BEEN A FACTOR IN THE DELIBERATIONS OF OUR
OWN CONSTITUTIONAL CONVENTION.  NOR DOES ANY SQUARELY MEET OUR ISSUE
HERE, AND FOR GOOD REASON - THE ACT OF EDWARD III DID NOT CONTAIN THE
TWO-WITNESSES-TO-THE-SAME-OVERT-ACT REQUIREMENT WHICH PRECIPITATES THE
ISSUE HERE. 

HISTORICAL MATERIALS ARE, THEREFORE, OF LITTLE HELP; NECESSITY AS
WELL AS DESIRE TAUGHT A CONCEPT THAT DIFFERED FROM ALL HISTORICAL
MODELS IN THE DRAFTING OF OUR TREASON CLAUSE.  TREASON STATUTES
THERETOFORE HAD BEEN ADAPTED TO A SOCIETY IN WHICH THE STATE WAS
PERSONIFIED BY A KING, ON WHOSE PERSON WERE FOCUSED THE ALLEGIANCES AND
LOYALTIES OF THE SUBJECT.  WHEN GOVERNMENT WAS MADE REPRESENTATIVE OF
THE WHOLE BODY OF THE GOVERNED, THERE WAS NONE TO SAY "I AM THE STATE"
AND A CONCEPT OF TREASON AS COMPASSING OR IMAGINING A RULER'S DEATH WAS
NO LONGER FITTING.  NOR CAN IT BE GAINSAID THAT THE REVOLUTIONARY
DOCTRINE THAT THE PEOPLE HAVE THE RIGHT TO ALTER OR ABOLISH THEIR
GOVERNMENT RELAXED THE LOYALTY WHICH GOVERNMENTS THERETOFORE HAD
DEMANDED - DANGEROUSLY DILUTED IT, AS THE RULING CLASSES OF EUROPE
THOUGHT, FOR IN THEIR EYES THE COLONISTS NOT ONLY COMMITTED TREASON,
THEY EXALTED IT.  FN27  THE IDEA THAT LOYALTY WILL ULTIMATELY BE GIVEN
TO A GOVERNMENT ONLY SO LONG AS IT DESERVES LOYALTY AND THAT OPPOSITION
TO ITS ABUSES IS NOT TREASON FN28  HAS MADE OUR GOVERNMENT TOLERANT OF
OPPOSITION BASED ON DIFFERENCES OF OPINION THAT IN SOME PARTS OF THE
WORLD WOULD HAVE KEPT THE HANGMAN BUSY.  BUT THE BASIC LAW OF TREASON
IN THIS COUNTRY WAS FRAMED BY MEN WHO, AS WE HAVE SEEN, WERE TAUGHT BY
EXPERIENCE AND BY HISTORY TO FEAR ABUSE OF THE TREASON CHARGE ALMOST AS
MUCH AS THEY FEARED TREASON ITSELF.  THE INTERPLAY IN THE CONVENTION OF
THEIR TWO FEARS ACCOUNTS FOR THE PROBLEM WHICH FACES US TODAY. 

   II 

WE TURN THEN TO THE PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF
1787 SO FAR AS WE HAVE RECORD OF THEM.  THE PLAN PRESENTED BY PINCKNEY
EVIDENTLY PROPOSED ONLY THAT CONGRESS SHOULD HAVE EXCLUSIVE POWER TO
DECLARE WHAT SHOULD BE TREASON AND MISPRISION OF TREASON AGAINST THE
UNITED STATES.  FN29  THE COMMITTEE ON DETAIL, APPARENTLY NOT
SPECIFICALLY INSTRUCTED ON THE SUBJECT, REPORTED A DRAFT CONSTITUTION
WHICH LEFT NO SUCH LATITUDE TO CREATE NEW TREASONS.  IT PROVIDED THAT:
"TREASON AGAINST THE UNITED STATES SHALL CONSIST ONLY IN LEVYING WAR
AGAINST THE UNITED STATES, OR ANY OF THEM; AND IN ADHERING TO THE
ENEMIES OF THE UNITED STATES, OR ANY OF THEM.  THE LEGISLATURE OF THE
UNITED STATES SHALL HAVE POWER TO DECLARE THE PUNISHMENT OF TREASON. 
NO PERSON SHALL BE CONVICTED OF TREASON, UNLESS ON THE TESTIMONY OF TWO
WITNESSES.  NO ATTAINDER OF TREASON SHALL WORK CORRUPTION OF BLOODS,
NOR FORFEITURE, EXCEPT DURING THE LIFE OF THE PERSON ATTAINTED."  FN30 

THIS CLAUSE WAS DISCUSSED ON AUGUST 20, 1787.  MR. MADISON, WHO
OPENED THE DISCUSSION, "THOUGHT THE DEFINITION TOO NARROW.  IT DID NOT
APPEAR TO GO AS FAR AS THE STAT.  OF EDWD.  III.  HE DID NOT SEE WHY
MORE LATITUDE MIGHT NOT BE LEFT TO THE LEGISLATURE.  IT WD. BE AS SAFE
IN THE HANDS OF STATE LEGISLATURES; AND IT WAS INCONVENIENT TO BAR A
DISCRETION WHICH EXPERIENCE MIGHT ENLIGHTEN, AND WHICH MIGHT BE APPLIED
TO GOOD PURPOSES AS WELL AS BE ABUSED."  FN31  MR. MASON WAS IN FAVOR
OF FOLLOWING THE LANGUAGE OF THE STATUTE OF EDWARD III.  THE DISCUSSION
SHOWS SOME CONFUSION AS TO THE EFFECT OF ADDING THE WORDS "GIVING THEM
AID AND COMFORT," SOME THINKING THEIR EFFECT RESTRICTIVE AND OTHERS
THAT THEY GAVE A MORE EXTENSIVE MEANING.  HOWEVER, "COL.  MASON MOVED
TO INSERT THE WORDS 'GIVING (THEM) AID COMFORT' AS RESTRICTIVE OF
'ADHERING TO THEIR ENEMIES, &C' - THE LATTER HE THOUGHT WOULD BE
OTHERWISE TOO INDEFINITE."  THE MOTION PREVAILED. 

MR. DICKENSON "WISHED TO KNOW WHAT WAS MEANT BY THE 'TESTIMONY OF TWO
WITNESSES', WHETHER THEY WERE TO BE WITNESSES TO THE SAME OVERT ACT OR
TO DIFFERENT OVERT ACTS.  HE THOUGHT ALSO THAT PROOF OF AN OVERT ACT
OUGHT TO BE EXPRESSED AS ESSENTIAL TO THE CASE."  DOCTOR JOHNSON ALSO
"CONSIDERED ...  THAT SOMETHING SHOULD BE INSERTED IN THE DEFINITION
CONCERNING OVERT ACTS." 

WHEN IT WAS MOVED TO INSERT "TO THE SAME OVERT ACT" AFTER THE TWO
WITNESSES REQUIREMENT, MADISON NOTES THAT "DOC'R FRANKLIN WISHED THIS
AMENDMENT TO TAKE PLACE - PROSECUTIONS FOR TREASON WERE GENERALLY
VIRULENT; AND PERJURY TOO EASILY MADE USE OF AGAINST INNOCENCE."  JAMES
WILSON OBSERVED THAT "MUCH MAY BE SAID ON BOTH SIDES.  TREASON MAY
SOMETIMES BE PRACTICED IN SUCH A MANNER, AS TO RENDER PROOF EXTREMELY
DIFFICULT - AS IN A TRAITOROUS CORRESPONDENCE WITH AN ENEMY."  FN32
BUT THE MOTION CARRIED. 

BY THIS SEQUENCE OF PROPOSALS THE TREASON CLAUSE OF THE CONSTITUTION
TOOK ITS PRESENT FORM.  THE TEMPER AND ATTITUDE OF THE CONVENTION
TOWARD TREASON PROSECUTIONS IS UNMISTAKABLE.  IT ADOPTED EVERY
LIMITATION THAT THE PRACTICE OF GOVERNMENTS HAD EVOLVED OR THAT
POLITICO-LEGAL PHILOSOPHY TO THAT TIME HAD ADVANCED.  FN33  LIMITATION
OF THE TREASON OF ADHERENCE TO THE ENEMY TO CASES WHERE AID AND COMFORT
WERE GIVEN AND THE REQUIREMENT OF AN OVERT ACT WERE BOTH FOUND IN THE
STATUTE OF EDWARD III, PRAISED IN THE WRITINGS OF COKE AND BLACKSTONE,
AND ADVOCATED IN MONTESQUIEU'S SPIRIT OF LAWS.  LIKEWISE, THE TWO
WITNESS REQUIREMENT HAD BEEN USED IN OTHER STATUTES,  FN34  WAS
ADVOCATED BY MONTESQUIEU IN ALL CAPITAL CASES,  FN35  AND WAS A
FAMILIAR PRECEPT OF THE NEW TESTAMENT  FN36  AND OF MOSAIC LAW.  FN37
THE FRAMERS COMBINED ALL OF THESE KNOWN PROTECTIONS AND ADDED TWO OF
THEIR OWN WHICH HAD NO PRECEDENT.  THEY WROTE INTO THE ORGANIC ACT OF
THE NEW GOVERNMENT A PROHIBITION OF LEGISLATIVE OR JUDICIAL CREATION OF
NEW TREASONS.  AND A VENERABLE SAFEGUARD AGAINST FALSE TESTIMONY WAS
GIVEN A NOVEL APPLICATION BY REQUIRING TWO WITNESSES TO THE SAME OVERT
ACT. 

DISTRUST OF TREASON PROSECUTIONS WAS NOT JUST A TRANSIENT MOOD OF THE
REVOLUTIONISTS.  IN THE CENTURY AND A HALF OF OUR NATIONAL EXISTENCE
NOT ONE EXECUTION ON A FEDERAL TREASON CONVICTION HAS TAKEN PLACE. 
NEVER BEFORE HAS THIS COURT HAD OCCASION TO REVIEW A CONVICTION.  IN
THE FEW CASES THAT HAVE BEEN PROSECUTED THE TREASON CLAUSE HAS HAD ITS
ONLY JUDICIAL CONSTRUCTION BY INDIVIDUAL JUSTICES OF THIS COURT
PRESIDING AT TRIALS ON CIRCUIT OR BY DISTRICT OR CIRCUIT JUDGES.  FN38
AFTER CONSTITUTIONAL REQUIREMENTS HAVE BEEN SATISFIED, AND AFTER JURIES
HAVE CONVICTED AND COURTS HAVE SENTENCED, PRESIDENTS AGAIN AND AGAIN
HAVE INTERVENED TO MITIGATE JUDICIAL SEVERITY OR TO PARDON ENTIRELY. 
WE HAVE MANAGED TO DO WITHOUT TREASON PROSECUTIONS TO A DEGREE THAT
PROBABLY WOULD BE IMPOSSIBLE EXCEPT WHILE A PEOPLE WAS SINGULARLY
CONFIDENT OF EXTERNAL SECURITY AND INTERNAL STABILITY.  FN39

   III 

HISTORICAL MATERIALS AID INTERPRETATION CHIEFLY IN THAT THEY SHOW TWO
KINDS OF DANGERS AGAINST WHICH THE FRAMERS WERE CONCERNED TO GUARD THE
TREASON OFFENSE:  (1) PERVERSION BY ESTABLISHED AUTHORITY TO REPRESS
PEACEFUL POLITICAL OPPOSITION; AND (2) CONVICTION OF THE INNOCENT AS A
RESULT OF PERJURY, PASSION, OR INADEQUATE EVIDENCE.  THE FIRST DANGER
COULD BE DIMINISHED BY CLOSELY CIRCUMSCRIBING THE KIND OF CONDUCT WHICH
SHOULD BE TREASON - MAKING THE CONSTITUTIONAL DEFINITION EXCLUSIVE,
MAKING IT CLEAR, AND MAKING THE OFFENSE ONE NOT SUSCEPTIBLE OF BEING
INFERRED FROM ALL SORTS OF INSUBORDINATIONS.  THE SECOND DANGER LAY IN
THE MANNER OF TRIAL AND WAS ONE WHICH WOULD BE DIMINISHED MAINLY BY
PROCEDURAL REQUIREMENTS - MAINLY BUT NOT WHOLLY, FOR THE HAZARDS OF
TRIAL ALSO WOULD BE DIMINISHED BY CONFINING THE TREASON OFFENSE TO
KINDS OF CONDUCT SUSCEPTIBLE OF REASONABLY SURE PROOF.  THE CONCERN
UPPERMOST IN THE FRAMERS' MINDS, THAT MERE MENTAL ATTITUDES OR
EXPRESSIONS SHOULD NOT BE TREASON, INFLUENCED BOTH DEFINITION OF THE
CRIME AND PROCEDURE FOR ITS TRIAL.  IN THE PROPOSED CONSTITUTION THE
FIRST SENTENCE OF THE TREASON ARTICLE UNDERTOOK TO DEFINE THE OFFENSE;
THE SECOND, TO SURROUND ITS TRIAL WITH PROCEDURAL SAFEGUARDS. 

"COMPASSING" AND LIKE LOOSE CONCEPTS OF THE SUBSTANCE OF THE OFFENSE
HAD BEEN USEFUL TOOLS FOR TYRANNY.  SO ONE OF THE OBVIOUS THINGS TO BE
PUT INTO THE DEFINITION OF TREASON NOT CONSISTING OF ACTUAL LEVYING OF
WAR WAS THAT IT MUST CONSIST OF DOING SOMETHING.  THIS THE DRAFT
CONSTITUTION FAILED TO PROVIDE, FOR, AS WE HAVE POINTED OUT, IT DEFINED
TREASON  FN40  AS MERELY "ADHERING TO THE ENEMIES OF THE UNITED STATES,
OR ANY OF THEM." 

TREASON OF ADHERENCE TO AN ENEMY WAS OLD IN THE LAW.  IT CONSISTED OF
BREAKING ALLEGIANCE TO ONE'S OWN KING BY FORMING AN ATTACHMENT TO HIS
ENEMY.  ITS SCOPE WAS COMPREHENSIVE, ITS REQUIREMENTS INDETERMINATE. 
IT MIGHT BE PREDICATED ON INTELLECTUAL OR EMOTIONAL SYMPATHY WITH THE
FOE, OR MERELY LACK OF ZEAL IN THE CAUSE OF ONE'S OWN COUNTRY.  THAT
WAS NOT THE KIND OF DISLOYALTY THE FRAMERS THOUGHT SHOULD CONSTITUTE
TREASON.  THEY PROMPTLY ACCEPTED THE PROPOSAL TO RESTRICT IT TO CASES
WHERE ALSO THERE WAS CONDUCT WHICH WAS "GIVING THEM AID AND COMFORT." 

"AID AND COMFORT" WAS DEFINED BY LORD READING IN THE CASEMENT TRIAL
COMPREHENSIVELY, AS IT SHOULD BE, AND YET PROBABLY WITH AS MUCH
PRECISION AS THE NATURE OF THE MATTER WILL PERMIT:  "... AN ACT WHICH
STRENGTHENS OR TENDS TO STRENGTHEN THE ENEMIES OF THE KING IN THE
CONDUCT OF A WAR AGAINST THE KING, THAT IS IN LAW THE GIVING OF AID AND
COMFORT" AND "AN ACT WHICH WEAKENS OR TENDS TO WEAKEN THE POWER OF THE
KING AND OF THE COUNTRY TO RESIST OR TO ATTACK THE ENEMIES OF THE KING
AND THE COUNTRY  ...  IS  ...  GIVING OF AID AND COMFORT."  LORD
READING EXPLAINED IT, AS WE THINK ONE MUST, IN TERMS OF AN "ACT."  IT
IS NOT EASY, IF INDEED POSSIBLE, TO THINK OF A WAY IN WHICH "AID AND
COMFORT" CAN BE "GIVEN" TO AN ENEMY EXCEPT BY SOME KIND OF ACTION.  ITS
VERY NATURE PARTAKES OF A DEED OR PHYSICAL ACTIVITY AS OPPOSED TO A
MENTAL OPERATION. 

THUS THE CRIME OF TREASON CONSISTS OF TWO ELEMENTS:  ADHERENCE TO THE
ENEMY; AND RENDERING HIM AID AND COMFORT.  A CITIZEN INTELLECTUALLY OR
EMOTIONALLY MAY FAVOR THE ENEMY AND HARBOR SYMPATHIES OR CONVICTIONS
DISLOYAL TO THIS COUNTRY'S POLICY OR INTEREST, BUT SO LONG AS HE
COMMITS NO ACT OF AID AND COMFORT TO THE ENEMY, THERE IS NO TREASON. 
ON THE OTHER HAND, A CITIZEN MAY TAKE ACTIONS WHICH DO AID AND COMFORT
THE ENEMY - MAKING A SPEECH CRITICAL OF THE GOVERNMENT OR OPPOSING ITS
MEASURES, PROFITEERING, STRIKING IN DEFENSE PLANTS OR ESSENTIAL WORK,
AND THE HUNDRED OTHER THINGS WHICH IMPAIR OUR COHESION AND DIMINISH OUR
STRENGTH - BUT IF THERE IS NO ADHERENCE TO THE ENEMY IN THIS, IF THERE
IS NO INTENT TO BETRAY, THERE IS NO TREASON. 

HAVING THUS BY DEFINITION MADE TREASON CONSIST OF SOMETHING OUTWARD
AND VISIBLE AND CAPABLE OF DIRECT PROOF, THE FRAMERS TURNED TO
SAFEGUARDING PROCEDURES OF TRIAL AND ORDAINED THAT "NO PERSON SHALL BE
CONVICTED OF TREASON UNLESS ON THE TESTIMONY OF TWO WITNESSES TO THE
SAME OVERT ACT, OR ON CONFESSION IN OPEN COURT."  THIS REPEATS IN
PROCEDURAL TERMS THE CONCEPT THAT THOUGHTS AND ATTITUDES ALONE CANNOT
MAKE A TREASON.  IT NEED NOT TROUBLE US THAT WE FIND SO DOMINANT A
PURPOSE EMPHASIZED IN TWO DIFFERENT WAYS.  BUT DOES THE PROCEDURAL
REQUIREMENT ADD SOME LIMITATION NOT ALREADY PRESENT IN THE DEFINITION
OF THE CRIME, AND IF SO, WHAT? 

WHILE TO PROVE GIVING OF AID AND COMFORT WOULD REQUIRE THE
PROSECUTION TO SHOW ACTIONS AND DEEDS, IF THE CONSTITUTION STOPPED
THERE, SUCH ACTS COULD BE INFERRED FROM CIRCUMSTANTIAL EVIDENCE.  THIS
THE FRAMERS THOUGHT WOULD NOT DO.  FN41  SO THEY ADDED WHAT IN EFFECT
IS A COMMAND THAT THE OVERT ACTS MUST BE ESTABLISHED BY DIRECT
EVIDENCE, AND THE DIRECT TESTIMONY MUST BE THAT OF TWO WITNESSES
INSTEAD OF ONE.  IN THIS SENSE THE OVERT ACT PROCEDURAL PROVISION ADDS
SOMETHING, AND SOMETHING IMPORTANT, TO THE DEFINITION. 

OUR PROBLEM BEGINS WHERE THE CONSTITUTION ENDS.  THAT INSTRUMENT
OMITS TO SPECIFY WHAT RELATION THE INDISPENSABLE OVERT ACT MUST SUSTAIN
TO THE TWO ELEMENTS OF THE OFFENSE AS DEFINED:  VIZ., ADHERENCE AND
GIVING AID AND COMFORT.  IT REQUIRES THAT TWO WITNESSES TESTIFY TO THE
SAME OVERT ACT, AND CLEARLY ENOUGH THE ACT MUST SHOW SOMETHING TOWARD
TREASON, BUT WHAT?  MUST THE ACT BE ONE OF GIVING AID AND COMFORT?  IF
SO, HOW MUST ADHERENCE TO THE ENEMY, THE DISLOYAL STATE OF MIND, BE
SHOWN?    THE DEFENDANT ESPECIALLY CHALLENGES THE SUFFICIENCY OF THE
OVERT ACTS TO PROVE TREASONABLE INTENTION.  QUESTIONS OF INTENT IN A
TREASON CASE ARE EVEN MORE COMPLICATED THAN IN MOST CRIMINAL CASES
BECAUSE OF THE PECULIARITY OF THE TWO DIFFERENT ELEMENTS WHICH TOGETHER
MAKE THE OFFENSE.  OF COURSE THE OVERT ACTS OF AID AND COMFORT MUST BE
INTENTIONAL AS DISTINGUISHED FROM MERELY NEGLIGENT OR UNDESIGNED ONES. 
INTENT IN THAT LIMITED SENSE IS NOT IN ISSUE HERE.  BUT TO MAKE TREASON
THE DEFENDANT NOT ONLY MUST INTEND THE ACT, BUT HE MUST INTEND TO
BETRAY HIS COUNTRY BY MEANS OF THE ACT.  IT IS HERE THAT CRAMER
DEFENDS.  THE ISSUE IS JOINED BETWEEN CONFLICTING THEORIES AS TO HOW
THIS TREACHEROUS INTENTION AND TREASONABLE PURPOSE MUST BE MADE TO
APPEAR. 

BEARING IN MIND THAT THE CONSTITUTIONAL REQUIREMENT IN EFFECT IS ONE
OF DIRECT RATHER THAN CIRCUMSTANTIAL EVIDENCE, WE MUST GIVE IT A
REASONABLE EFFECT IN THE LIGHT OF ITS PURPOSE BOTH TO PRESERVE THE
OFFENSE AND TO PROTECT CITIZENS FROM ITS ABUSE.  WHAT IS DESIGNED IN
THE MIND OF AN ACCUSED NEVER IS SUSCEPTIBLE OF PROOF BY DIRECT
TESTIMONY.  IF WE WERE TO HOLD THAT THE DISLOYAL AND TREACHEROUS
INTENTION MUST BE PROVED BY THE DIRECT TESTIMONY OF TWO WITNESSES, IT
WOULD BE TO HOLD THAT IT IS NEVER PROVABLE.  IT SEEMS OBVIOUS THAT
ADHERENCE TO THE ENEMY, IN THE SENSE OF A DISLOYAL STATE OF MIND,
CANNOT BE, AND IS NOT REQUIRED TO BE, PROVED BY DEPOSITION OF TWO
WITNESSES. 

SINCE INTENT MUST BE INFERRED FROM CONDUCT OF SOME SORT, WE THINK IT
IS PERMISSIBLE TO DRAW USUAL REASONABLE INFERENCES AS TO INTENT FROM
THE OVERT ACTS.  THE LAW OF TREASON, LIKE THE LAW OF LESSER CRIMES,
ASSUMES EVERY MAN TO INTEND THE NATURAL CONSEQUENCES WHICH ONE STANDING
IN HIS CIRCUMSTANCES AND POSSESSING HIS KNOWLEDGE WOULD REASONABLY
EXPECT TO RESULT FROM HIS ACTS.  PROOF THAT A CITIZEN DID GIVE AID AND
COMFORT TO AN ENEMY MAY WELL BE IN THE CIRCUMSTANCES SUFFICIENT
EVIDENCE THAT HE ADHERED TO THAT ENEMY AND INTENDED AND PURPOSED TO
STRIKE AT HIS OWN COUNTRY.  FN42  IT MAY BE DOUBTED WHETHER IT WOULD BE
WHAT THE FOUNDERS INTENDED, OR WHETHER IT WOULD WELL SERVE ANY OF THE
ENDS THEY CHERISHED, TO HOLD THE TREASON OFFENSE AVAILABLE TO PUNISH
ONLY THOSE WHO MAKE THEIR TREACHEROUS INTENTIONS MORE EVIDENT THAN MAY
BE DONE BY RENDERING AID AND COMFORT TO AN ENEMY.  TREASON - INSIDIOUS
AND DANGEROUS TREASON - IS THE WORK OF THE SHREWD AND CRAFTY MORE OFTEN
THAN OF THE SIMPLE AND IMPULSIVE. 

WHILE OF COURSE IT MUST BE PROVED THAT THE ACCUSED ACTED WITH AN
INTENTION AND PURPOSE TO BETRAY OR THERE IS NO TREASON, WE THINK THAT
IN SOME CIRCUMSTANCES AT LEAST THE OVERT ACT ITSELF WILL BE EVIDENCE OF
THE TREASONABLE PURPOSE AND INTENT.  BUT THAT STILL LEAVES US WITH
EXCEEDINGLY DIFFICULT PROBLEMS.  HOW DECISIVELY MUST TREACHEROUS
INTENTION BE MADE MANIFEST IN THE ACT ITSELF?  WILL A SCINTILLA OF
EVIDENCE OF TRAITOROUS INTENT SUFFICE?  OR MUST IT BE SUFFICIENT TO
CONVINCE BEYOND REASONABLE DOUBT?  OR NEED IT SHOW ONLY THAT
TREASONABLE INTENT WAS MORE PROBABLE THAN NOT?  MUST THE OVERT ACT BE
APPRAISED FOR LEGAL SUFFICIENCY ONLY AS SUPPORTED BY THE TESTIMONY OF
TWO WITNESSES, OR MAY OTHER EVIDENCE BE THROWN INTO THE SCALES TO
CREATE INFERENCES NOT OTHERWISE REASONABLY TO BE DRAWN OR TO REINFORCE
THOSE WHICH MIGHT BE DRAWN FROM THE ACT ITSELF? 

IT IS ONLY OVERT ACTS BY THE ACCUSED WHICH THE CONSTITUTION
EXPLICITLY REQUIRES TO BE PROVED BY THE TESTIMONY OF TWO WITNESSES.  IT
DOES NOT MAKE OTHER COMMON-LAW EVIDENCE INADMISSIBLE NOR DENY ITS
INHERENT POWERS OF PERSUASION.  IT DOES NOT FORBID JUDGING BY THE USUAL
PROCESS BY WHICH THE SIGNIFICANCE OF CONDUCT OFTEN WILL BE DETERMINED
BY FACTS WHICH ARE NOT ACTS.  ACTIONS OF THE ACCUSED ARE SET IN TIME
AND PLACE IN MANY RELATIONSHIPS.  ENVIRONMENT ILLUMINATES THE MEANING
OF ACTS, AS CONTEXT DOES THAT OF WORDS.  WHAT A MAN IS UP TO MAY BE
CLEAR FROM CONSIDERING HIS BARE ACTS BY THEMSELVES; OFTEN IT IS MADE
CLEAR WHEN WE KNOW THE RECIPROCITY AND SEQUENCE OF HIS ACTS WITH THOSE
OF OTHERS, THE INTERCHANGE BETWEEN HIM AND ANOTHER, THE GIVE AND TAKE
OF THE SITUATION. 

IT WOULD BE NO CONTRIBUTION TO CERTAINTY OF JUDGMENT, WHICH IS THE
OBJECT OF THE PROVISION, TO CONSTRUE IT TO DEPRIVE A TRIAL COURT OF THE
AID OF TESTIMONY UNDER THE ORDINARY SANCTIONS OF VERITY, PROVIDED, OF
COURSE, RESORT IS NOT HAD TO EVIDENCE OF LESS THAN THE CONSTITUTIONAL
STANDARD TO SUPPLY DEFICIENCIES IN THE CONSTITUTIONAL MEASURE OF PROOF
OF OVERT ACTS.  FOR IT MUST BE REMEMBERED THAT THE CONSTITUTIONAL
PROVISION ESTABLISHES A MINIMUM OF PROOF OF INCRIMINATING ACTS, WITHOUT
WHICH THERE CAN BE NO CONVICTION, BUT IT IS NOT OTHERWISE A LIMITATION
ON THE EVIDENCE WITH WHICH A JURY MAY BE PERSUADED THAT IT OUGHT TO
CONVICT.  THE CONSTITUTION DOES NOT EXCLUDE OR SET UP STANDARDS TO TEST
EVIDENCE WHICH WILL SHOW THE RELEVANT ACTS OF PERSONS OTHER THAN THE
ACCUSED OR THEIR IDENTITY OR ENEMY CHARACTER OR OTHER SURROUNDING
CIRCUMSTANCES.  NOR DOES IT PRECLUDE ANY PROPER EVIDENCE OF NON
INCRIMINATING FACTS ABOUT A DEFENDANT, SUCH FOR EXAMPLE AS HIS
NATIONALITY, NATURALIZATION, AND RESIDENCE. 

FROM DULY PROVEN OVERT ACTS OF AID AND COMFORT TO THE ENEMY IN THEIR
SETTING, IT MAY WELL BE THAT THE NATURAL AND REASONABLE INFERENCE OF
INTENTION TO BETRAY WILL BE WARRANTED.  THE TWO-WITNESS EVIDENCE OF THE
ACTS ACCUSED, TOGETHER WITH COMMON-LAW EVIDENCE OF ACTS OF OTHERS AND
OF FACTS WHICH ARE NOT ACTS, WILL HELP TO DETERMINE WHICH AMONG
POSSIBLE INFERENCES AS TO THE ACTOR'S KNOWLEDGE, MOTIVATION, OR INTENT
ARE THE TRUE ONES.  BUT THE PROTECTION OF THE TWO-WITNESS RULE EXTENDS
AT LEAST TO ALL ACTS OF THE DEFENDANT WHICH ARE USED TO DRAW
INCRIMINATING INFERENCES THAT AID AND COMFORT HAVE BEEN GIVEN. 

THE CONTROVERSY BEFORE US HAS BEEN WAGED IN TERMS OF INTENTIONS, BUT
THIS, WE THINK, IS THE REFLECTION OF A MORE FUNDAMENTAL ISSUE AS TO
WHAT IS THE REAL FUNCTION OF THE OVERT ACT IN CONVICTING OF TREASON. 
THE PRISONER'S CONTENTION THAT IT ALONE AND ON ITS FACE MUST MANIFEST A
TRAITOROUS INTENTION, APART FROM AN INTENTION TO DO THE ACT ITSELF,
WOULD PLACE ON THE OVERT ACT THE WHOLE BURDEN OF ESTABLISHING A
COMPLETE TREASON.  ON THE OTHER HAND, THE GOVERNMENT'S CONTENTION THAT
IT MAY PROVE BY TWO WITNESSES AN APPARENTLY COMMONPLACE AND
INSIGNIFICANT ACT AND FROM OTHER CIRCUMSTANCES CREATE AN INFERENCE THAT
THE ACT WAS A STEP IN TREASON AND WAS DONE WITH TREASONABLE INTENT
REALLY IS A CONTENTION THAT THE FUNCTION OF THE OVERT ACT IN A TREASON
PROSECUTION IS ALMOST ZERO.  IT IS OBVIOUS THAT THE FUNCTION WE ASCRIBE
TO THE OVERT ACT IS SIGNIFICANT CHIEFLY BECAUSE IT MEASURES THE TWO
WITNESS RULE PROTECTION TO THE ACCUSED AND ITS HANDICAP TO THE
PROSECUTION.  IF THE OVERT ACT OR ACTS MUST GO ALL THE WAY TO MAKE OUT
THE COMPLETE TREASON, THE DEFENDANT IS PROTECTED AT ALL POINTS BY THE
TWO-WITNESS REQUIREMENT.  IF THE ACT MAY BE AN INSIGNIFICANT ONE, THEN
THE CONSTITUTIONAL SAFEGUARDS ARE SHRUNKEN SO AS TO BE APPLICABLE ONLY
AT A POINT WHERE THEY ARE LEAST NEEDED. 

THE VERY MINIMUM FUNCTION THAT AN OVERT ACT  FN43  MUST PERFORM IN A
TREASON PROSECUTION IS THAT IT SHOW SUFFICIENT ACTION BY THE ACCUSED,
IN ITS SETTING, TO SUSTAIN A FINDING THAT THE ACCUSED ACTUALLY GAVE
FN44  AID AND COMFORT TO THE ENEMY.  EVERY ACT, MOVEMENT, DEED, AND
WORD OF THE DEFENDANT CHARGED TO CONSTITUTE TREASON MUST BE SUPPORTED
BY THE TESTIMONY OF TWO WITNESSES.  THE TWO-WITNESS PRINCIPLE IS TO
INTERDICT IMPUTATION OF INCRIMINATING ACTS TO THE ACCUSED BY
CIRCUMSTANTIAL EVIDENCE OR BY THE TESTIMONY OF A SINGLE WITNESS.  THE
PROSECUTION CANNOT RELY ON EVIDENCE WHICH DOES NOT MEET THE
CONSTITUTIONAL TEST FOR OVERT ACTS TO CREATE ANY INFERENCE THAT THE
ACCUSED DID OTHER ACTS OR DID SOMETHING MORE THAN WAS SHOWN IN THE
OVERT ACT, IN ORDER TO MAKE A GIVING OF AID AND COMFORT TO THE ENEMY. 
THE WORDS OF THE CONSTITUTION WERE CHOSEN, NOT TO MAKE IT HARD TO PROVE
MERELY ROUTINE AND EVERYDAY ACTS, BUT TO MAKE THE PROOF OF ACTS THAT
CONVICT OF TREASON AS SURE AS TRIAL PROCESSES MAY.  WHEN THE
PROSECUTION'S CASE IS THUS ESTABLISHED, THE CONSTITUTION DOES NOT
PREVENT PRESENTATION OF CORROBORATIVE OR CUMULATIVE EVIDENCE OF ANY
ADMISSIBLE CHARACTER EITHER TO STRENGTHEN A DIRECT CASE OR TO REBUT THE
TESTIMONY OR INFERENCES ON BEHALF OF DEFENDANT.  THE GOVERNMENT IS NOT
PREVENTED FROM MAKING A STRONG CASE; IT IS DENIED A CONVICTION ON A
WEAK ONE. 

IT MAY BE THAT IN SOME CASES THE OVERT ACTS, SUFFICIENT TO PROVE
GIVING OF AID AND COMFORT, WILL FALL SHORT OF SHOWING INTENT TO BETRAY
AND THAT QUESTIONS WILL THEN BE RAISED AS TO PERMISSIBLE METHODS OF
PROOF THAT WE DO NOT REACH IN THIS CASE.  BUT IN THIS AND SOME CASES WE
HAVE CITED WHERE THE SUFFICIENCY OF THE OVERT ACTS HAS BEEN CHALLENGED
BECAUSE THEY WERE COLORLESS AS TO INTENT, WE ARE PERSUADED THE REASON
INTENT WAS LEFT IN QUESTION WAS THAT THE ACTS WERE REALLY INDECISIVE AS
A GIVING OF AID AND COMFORT.  WHEN WE DEAL WITH ACTS THAT ARE TRIVIAL
AND COMMONPLACE AND HENCE ARE DOUBTFUL AS TO WHETHER THEY GAVE AID AND
COMFORT TO THE ENEMY, WE ARE MOST PUT TO IT TO FIND IN OTHER EVIDENCE A
TREACHEROUS INTENT. 

WE PROCEED TO CONSIDER THE APPLICATION OF THESE PRINCIPLES TO
CRAMER'S CASE. 

                 IV 

THE INDICTMENT CHARGED CRAMER WITH ADHERING TO THE ENEMIES OF THE
UNITED STATES, GIVING THEM AID AND COMFORT, AND SET FORTH TEN OVERT
ACTS.  THE PROSECUTION WITHDREW SEVEN, AND THREE WERE SUBMITTED TO THE
JURY.  THE OVERT ACTS WHICH PRESENT THE PRINCIPAL ISSUE  FN45  ARE
ALLEGED IN THE FOLLOWING LANGUAGE: 

"1.  ANTHONY CRAMER, THE DEFENDANT HEREIN, ON OR ABOUT JUNE 23, 1942,
AT THE SOUTHERN DISTRICT OF NEW YORK AND WITHIN THE JURISDICTION OF
THIS COURT, DID MEET WITH WERNER THIEL AND EDWARD JOHN KERLING, ENEMIES
OF THE UNITED STATES, AT THE TWIN OAKS INN AT LEXINGTON AVENUE AND 44TH
STREET, IN THE CITY AND STATE OF NEW YORK, AND DID CONFER, TREAT, AND
COUNSEL WITH SAID WERNER THIEL AND EDWARD JOHN KERLING FOR A PERIOD OF
TIME FOR THE PURPOSE OF GIVING AND WITH INTENT TO GIVE AID AND COMFORT
TO SAID ENEMIES, WERNER THIEL AND EDWARD JOHN KERLING. 

"2.  ANTHONY CRAMER, THE DEFENDANT HEREIN, ON OR ABOUT JUNE 23, 1942,
AT THE SOUTHERN DISTRICT OF NEW YORK AND WITHIN THE JURISDICTION OF
THIS COURT, DID ACCOMPANY, CONFER, TREAT, AND COUNSEL WITH WERNER
THIEL, AN ENEMY OF THE UNITED STATES, FOR A PERIOD OF TIME AT THE TWIN
OAKS INN AT LEXINGTON AVENUE AND 44TH STREET, AND AT THOMPSON'S
CAFETERIA ON 42ND STREET BETWEEN LEXINGTON AND VANDERBILT AVENUES, BOTH
IN THE CITY AND STATE OF NEW YORK, FOR THE PURPOSE OF GIVING AND WITH
INTENT TO GIVE AID AND COMFORT TO SAID ENEMY, WERNER THIEL." 

AT THE PRESENT STAGE OF THE CASE WE NEED NOT WEIGH THEIR SUFFICIENCY
AS A MATTER OF PLEADING.  WHATEVER THE AVERMENTS MIGHT HAVE PERMITTED
THE GOVERNMENT TO PROVE, WE NOW CONSIDER THEIR ADEQUACY ON THE PROOF AS
MADE. 

IT APPEARED UPON THE TRIAL THAT AT ALL TIMES INVOLVED IN THESE ACTS
KERLING AND THIEL WERE UNDER SURVEILLANCE OF THE FEDERAL BUREAU OF
INVESTIGATION.  BY DIRECT TESTIMONY OF TWO OR MORE AGENTS IT WAS
ESTABLISHED THAT CRAMER MET THIEL AND KERLING ON THE OCCASIONS AND AT
THE PLACES CHARGED AND THAT THEY DRANK TOGETHER AND ENGAGED LONG AND
EARNESTLY IN CONVERSATION.  THIS IS THE SUM OF THE OVERT ACTS AS
ESTABLISHED BY THE TESTIMONY OF TWO WITNESSES.  THERE IS NO TWO-WITNESS
PROOF OF WHAT THEY SAID NOR IN WHAT LANGUAGE THEY CONVERSED.  THERE IS
NO SHOWING THAT CRAMER GAVE THEM ANY INFORMATION WHATEVER OF VALUE TO
THEIR MISSION OR INDEED THAT HE HAD ANY TO GIVE.  NO EFFORT AT SECRECY
IS SHOWN, FOR THEY MET IN PUBLIC PLACES.  CRAMER FURNISHED THEM NO
SHELTER, NOTHING THAT CAN BE CALLED SUSTENANCE OR SUPPLIES, AND THERE
IS NO EVIDENCE THAT HE GAVE THEM ENCOURAGEMENT OR COUNSEL, OR EVEN PAID
FOR THEIR DRINKS. 

THE GOVERMENT RECOGNIZES THE WEAKNESS OF ITS PROOF OF AID AND
COMFORT, BUT ON THIS SCORE IT URGES:  "LITTLE IMAGINATION IS REQUIRED
TO PERCEIVE THE ADVANTAGE SUCH MEETING WOULD AFFORD TO ENEMY SPIES NOT
YET DETECTED.  EVEN APART FROM THE PSYCHOLOGICAL COMFORT WHICH THE
MEETINGS FURNISHED THIEL AND KERLING BY WAY OF SOCIAL INTERCOURSE WITH
ONE WHO THEY WERE CONFIDENT WOULD NOT REPORT THEM TO THE AUTHORITIES,
AS A LOYAL CITIZEN SHOULD, THE MEETINGS GAVE THEM A SOURCE OF
INFORMATION AND AN AVENUE FOR CONTACT.  IT ENABLED THEM TO BE SEEN IN
PUBLIC WITH A CITIZEN ABOVE SUSPICION AND THEREBY TO BE MINGLING
NORMALLY WITH THE CITIZENS OF THE COUNTRY WITH WHICH THEY WERE AT
WAR."  THE DIFFICULTY WITH THIS ARGUMENT IS THAT THE WHOLE PURPOSE OF
THE CONSTITUTIONAL PROVISION IS TO MAKE SURE THAT TREASON CONVICTION
SHALL REST ON DIRECT PROOF OF TWO WITNESSES AND NOT ON EVEN A LITTLE
IMAGINATION.  AND WITHOUT THE USE OF SOME IMAGINATION IT IS DIFFICULT
TO PERCEIVE ANY ADVANTAGE WHICH THIS MEETING AFFORDED TO THIEL AND
KERLING AS ENEMIES OR HOW IT STRENGTHENED GERMANY OR WEAKENED THE
UNITED STATES IN ANY WAY WHATEVER.  IT MAY BE TRUE THAT THE SABOTEURS
WERE CULTIVATING CRAMER AS A POTENTIAL "SOURCE OF INFORMATION AND AN
AVENUE FOR CONTACT."  BUT THERE IS NO PROOF EITHER BY TWO WITNESSES OR
BY EVEN ONE WITNESS OR BY ANY CIRCUMSTANCE THAT CRAMER GAVE THEM
INFORMATION OR ESTABLISHED ANY "CONTACT" FOR THEM WITH ANY PERSON OTHER
THAN AN ATTEMPT TO BRING ABOUT A RENDEZVOUS BETWEEN THIEL AND A GIRL,
OR THAT BEING "SEEN IN PUBLIC WITH A CITIZEN ABOVE SUSPICION" WAS OF
ANY ASSISTANCE TO THE ENEMY.  MEETING WITH CRAMER IN PUBLIC DRINKING
PLACES TO TIPPLE AND TRIFLE WAS NO PART OF THE SABOTEURS' MISSION AND
DID NOT ADVANCE IT.  IT MAY WELL HAVE BEEN A DIGRESSION WHICH
JEOPARDIZED ITS SUCCESS.    THE SHORTCOMINGS OF THE OVERT ACT SUBMITTED
ARE EMPHASIZED BY CONTRAST WITH OTHERS WHICH THE INDICTMENT CHARGED BUT
WHICH THE PROSECUTION WITHDREW FOR ADMITTED INSUFFICIENCY OF PROOF.  IT
APPEARS THAT CRAMER TOOK FROM THIEL FOR SAFEKEEPING A MONEY BELT
CONTAINING ABOUT $3,600, SOME $160 OF WHICH HE HELD IN HIS ROOM
CONCEALED IN BOOKS FOR THIEL'S USE AS NEEDED.  AN OLD INDEBTEDNESS OF
THIEL TO CRAMER OF $200 WAS PAID FROM THE FUND, AND THE REST CRAMER PUT
IN HIS SAFE-DEPOSIT BOX IN A BANK FOR SAFEKEEPING.  ALL OF THIS WAS AT
THIEL'S REQUEST.  THAT THIEL WOULD BE AIDED BY HAVING THE SECURITY OF A
SAFE-DEPOSIT BOX FOR HIS FUNDS, PLUS AVAILABILITY OF SMALLER AMOUNTS,
AND BY BEING RELIEVED OF THE RISKS OF CARRYING LARGE SUMS ON HIS PERSON
- WITHOUT DISCLOSING HIS PRESENCE OR IDENTITY TO A BANK - SEEMS
OBVIOUS.  THE INFERENCE OF INTENT FROM SUCH ACT IS ALSO VERY DIFFERENT
FROM THE INTENT MANIFEST BY DRINKING AND TALKING TOGETHER.  TAKING WHAT
MUST HAVE SEEMED A LARGE SUM OF MONEY FOR SAFEKEEPING IS NOT A USUAL
AMENITY OF SOCIAL INTERCOURSE.  THAT SUCH RESPONSIBILITIES ARE
UNDERTAKEN AND SUCH TRUST BESTOWED WITHOUT THE SCRATCH OF A PEN TO SHOW
IT, IMPLIES SOME DEGREE OF MUTUALITY AND CONCERT FROM WHICH A JURY
COULD SAY THAT AID AND COMFORT WAS GIVEN AND WAS INTENDED.  IF THESE
ACTS HAD BEEN SUBMITTED AS OVERT ACTS OF TREASON, AND WE WERE NOW
REQUIRED TO DECIDE WHETHER THEY HAD BEEN ESTABLISHED AS REQUIRED, WE
WOULD HAVE A QUITE DIFFERENT CASE.  WE WOULD THEN HAVE TO DECIDE
WHETHER STATEMENTS ON THE WITNESS STAND BY THE DEFENDANT ARE EITHER
"CONFESSION IN OPEN COURT" OR MAY BE COUNTED AS THE TESTIMONY OF ONE OF
THE REQUIRED TWO WITNESSES TO MAKE OUT OTHERWISE INSUFFICIENTLY PROVED
"OVERT ACTS."  BUT THIS TRANSACTION WAS NOT PROVEN AS THE GOVERNMENT
EVIDENTLY HOPED TO DO WHEN THE INDICTMENT WAS OBTAINED.  THE OVERT ACTS
BASED ON IT WERE EXPRESSLY WITHDRAWN FROM THE JURY, AND CRAMER HAS NOT
BEEN CONVICTED OF TREASON ON ACCOUNT OF SUCH ACTS.  WE CANNOT SUSTAIN A
CONVICTION FOR THE ACTS SUBMITTED ON THE THEORY THAT, EVEN IF
INSUFFICIENT, SOME UNSUBMITTED ONES MAY BE RESORTED TO AS PROOF OF
TREASON.  EVIDENCE OF THE MONEY TRANSACTION SERVES ONLY TO SHOW HOW
MUCH WENT OUT OF THE CASE WHEN IT WAS WITHDRAWN. 

THE GOVERNMENT CONTENDS THAT OUTSIDE OF THE OVERT ACTS, AND BY LESSER
DEGREE OF PROOF, IT HAS SHOWN A TREASONABLE INTENT ON CRAMER'S PART IN
MEETING AND TALKING WITH THIEL AND KERLING.  BUT IF IT SHOWED HIM
DISPOSED TO BETRAY, AND SHOWED THAT HE HAD OPPORTUNITY TO DO SO, IT
STILL HAS NOT PROVED IN THE MANNER REQUIRED THAT HE DID ANY ACTS
SUBMITTED TO THE JURY AS A BASIS FOR CONVICTION WHICH HAD THE EFFECT OF
BETRAYING BY GIVING AID AND COMFORT.  TO TAKE THE INTENT FOR THE DEED
WOULD CARRY US BACK TO CONSTRUCTIVE TREASONS. 

IT IS OUTSIDE OF THE COMMONPLACE OVERT ACTS AS PROVED THAT WE MUST
FIND ALL THAT CONVICTS OR CONVINCES EITHER THAT CRAMER GAVE AID AND
COMFORT OR THAT HE HAD A TRAITOROUS INTENTION.  THE PROSECUTION RELIED
CHIEFLY UPON THE TESTIMONY OF NORMA KOPP, THE FIANCEE OF THIEL, AS TO
INCRIMINATING STATEMENTS MADE BY CRAMER TO HER,  FN46  UPON ADMISSIONS
MADE BY CRAMER AFTER HIS ARREST TO AGENTS OF THE FEDERAL BUREAU OF
INVESTIGATION,  FN47  UPON LETTERS AND DOCUMENTS FOUND ON SEARCH OF HIS
ROOM BY PERMISSION AFTER HIS ARREST,  FN48  AND UPON TESTIMONY THAT
CRAMER HAD CURTLY REFUSED TO BUY GOVERNMENT BONDS.  FN49  AFTER DENIAL
OF DEFENDANT'S MOTION TO DISMISS AT THE CLOSE OF THE PROSECUTION'S
CASE, DEFENDANT BECAME A WITNESS IN HIS OWN BEHALF AND THE GOVERNMENT
OBTAINED ON CROSS-EXAMINATION SOME ADMISSIONS OF WHICH IT HAD THE
BENEFIT ON SUBMISSION.  FN50 

IT IS NOT RELEVANT TO OUR ISSUE TO APPRAISE WEIGHT OR CREDIBILITY OF
THE EVIDENCE APART FROM DETERMINING ITS CONSTITUTIONAL SUFFICIENCY. 
NOR IS IT NECESSARY, IN THE VIEW WE TAKE OF THE MORE FUNDAMENTAL
ISSUES, TO DISCUSS THE RESERVATIONS WHICH ALL OF US ENTERTAIN AS TO THE
ADMISSIBILITY OF SOME OF IT OR THOSE WHICH SOME ENTERTAIN AS TO OTHER
OF IT.  WE COULD CONCLUDE IN FAVOR OF AFFIRMANCE ONLY IF ALL QUESTIONS
OF ADMISSIBILITY WERE RESOLVED AGAINST THE PRISONER.  AT ALL EVENTS
MUCH OF THE EVIDENCE IS OF THE GENERAL CHARACTER WHOSE INFIRMITIES WERE
FEARED BY THE FRAMERS AND SOUGHT TO BE SAFEGUARDED AGAINST. 

MOST DAMAGING IS THE TESTIMONY OF NORMA KOPP, A FRIEND OF CRAMER'S
AND ONE WITH WHOM, IF SHE IS TO BE BELIEVED, HE HAD BEEN MOST
INDISCREETLY CONFIDENTIAL.  HER TESTIMONY WENT CONSIDERABLY BEYOND THAT
OF THE AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION AS TO ADMISSIONS
OF GUILTY KNOWLEDGE OF THIEL'S HOSTILE MISSION AND OF CRAMER'S SYMPATHY
WITH IT.  TO THE EXTENT THAT HIS CONVICTION RESTS UPON SUCH EVIDENCE,
AND IT DOES TO AN UNKNOWN BUT CONSIDERABLE EXTENT, IT RESTS UPON THE
UNCORROBORATED TESTIMONY OF ONE WITNESS NOT WITHOUT STRONG EMOTIONAL
INTEREST IN THE DRAMA OF WHICH CRAMER'S TRIAL WAS A PART.  OTHER
EVIDENCE RELATES STATEMENTS BY CRAMER BEFORE THE UNITED STATES WAS AT
WAR WITH GERMANY.  AT THE TIME THEY WERE UTTERED, HOWEVER, THEY WERE
NOT TREASONABLE.  TO USE PRE-WAR EXPRESSIONS OF OPPOSITION TO ENTERING
A WAR TO CONVICT OF TREASON DURING THE WAR IS A DANGEROUS PROCEDURE AT
BEST.  THE SAME MAY BE SAID ABOUT THE INFERENCE OF DISLOYAL ATTITUDE
CREATED BY SHOWING THAT HE REFUSED TO BUY BONDS AND CLOSED THE DOOR IN
THE SALESMAN'S FACE.  ANOTHER CLASS OF EVIDENCE CONSISTS OF ADMISSIONS
TO AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION.  THEY ARE, OF COURSE,
NOT "CONFESSIONS IN OPEN COURT."  THE GOVERNMENT DOES NOT CONTEND AND
COULD NOT WELL CONTEND THAT ADMISSIONS MADE OUT OF COURT, IF OTHERWISE
ADMISSIBLE, CAN SUPPLY A DEFICIENCY IN PROOF OF THE OVERT ACT ITSELF. 

          V 

THE GOVERNMENT HAS URGED THAT OUR INITIAL INTERPRETATION OF THE
TREASON CLAUSE SHOULD BE LESS EXACTING, LEST TREASON BE TOO HARD TO
PROVE AND THE GOVERNMENT DISABLED FROM ADEQUATELY COMBATING THE
TECHNIQUES OF MODERN WARFARE.  BUT THE TREASON OFFENSE IS NOT THE ONLY
NOR CAN IT WELL SERVE AS THE PRINCIPAL LEGAL WEAPON TO VINDICATE OUR
NATIONAL COHESION AND SECURITY.  IN DEBATING THIS PROVISION, RUFUS KING
OBSERVED TO THE CONVENTION THAT THE "CONTROVERSY RELATING TO TREASON
MIGHT BE OF LESS MAGNITUDE THAN WAS SUPPOSED; AS THE LEGISLATURE MIGHT
PUNISH CAPITALLY UNDER OTHER NAMES THAN TREASON."  FN51  HIS STATEMENT
HOLDS GOOD TODAY.  OF COURSE WE DO NOT INTIMATE THAT CONGRESS COULD
DISPENSE WITH THE TWO-WITNESS RULE MERELY BY GIVING THE SAME OFFENSE
ANOTHER NAME.  BUT THE POWER OF CONGRESS IS IN NO WAY LIMITED TO ENACT
PROHIBITIONS OF SPECIFIED ACTS THOUGHT DETRIMENTAL TO OUR WARTIME
SAFETY.  THE LOYAL AND THE DISLOYAL ALIKE MAY BE FORBIDDEN TO DO ACTS
WHICH PLACE OUR SECURITY IN PERIL, AND THE TRIAL THEREOF MAY BE
FOCUSSED UPON DEFENDANT'S SPECIFIC INTENT TO DO THOSE PARTICULAR ACTS
FN52  THUS ELIMINATING THE ACCUSATION OF TREACHERY AND OF GENERAL
INTENT TO BETRAY WHICH HAVE SUCH PASSION-ROUSING POTENTIALITIES. 
CONGRESS REPEATEDLY HAS ENACTED PROHIBITIONS OF SPECIFIC ACTS THOUGHT
TO ENDANGER OUR SECURITY  FN53  AND THE PRACTICE OF FOREIGN NATIONS
WITH DEFENSE PROBLEMS MORE ACUTE THAN OUR OWN AFFORDS EXAMPLES OF
OTHERS.  FN54 

THE FRAMERS' EFFORT TO COMPRESS INTO TWO SENTENCES THE LAW OF ONE OF
THE MOST INTRICATE OF CRIMES GIVES A SUPERFICIAL APPEARANCE OF CLARITY
AND SIMPLICITY WHICH PROVES ILLUSORY WHEN IT IS PUT TO PRACTICAL
APPLICATION.  THERE ARE FEW SUBJECTS ON WHICH THE TEMPTATION TO UTTER
ABSTRACT INTERPRETATIVE GENERALIZATIONS IS GREATER OR ON WHICH THEY ARE
MORE TO BE DISTRUSTED.  THE LITTLE CLAUSE IS PACKED WITH CONTROVERSY
AND DIFFICULTY.  THE OFFENSE IS ONE OF SUBTLETY, AND IT IS EASY TO
DEMONSTRATE LACK OF LOGIC IN ALMOST ANY INTERPRETATION BY HYPOTHETICAL
CASES, TO WHICH REAL TREASONS RARELY WILL CONFORM.  THE PROTECTION OF
THE TWO-WITNESS REQUIREMENT, LIMITED AS IT IS TO OVERT ACTS, MAY BE
WHOLLY UNRELATED TO THE REAL CONTROVERSIAL FACTORS IN A CASE.  WE WOULD
BE UNDERSTOOD AS SPEAKING ONLY IN THE LIGHT OF THE FACTS AND OF THE
ISSUES RAISED IN THE CASE UNDER CONSIDERATION, ALTHOUGH THAT LEAVES
MANY UNDETERMINED GROUNDS OF DISPUTE WHICH, AFTER THE METHOD OF THE
COMMON LAW, WE MAY DEFER UNTIL THEY ARE PRESENTED BY FACTS WHICH MAY
THROW GREATER LIGHT ON THEIR SIGNIFICANCE.  ALTHOUGH NOTHING IN THE
CONDUCT OF CRAMER'S TRIAL EVOKES IT, A REPETITION OF CHIEF JUSTICE
MARSHALL'S WARNING CAN NEVER BE UNTIMELY: 

"AS THERE IS NO CRIME WHICH CAN MORE EXCITE AND AGITATE THE PASSIONS
OF MEN THAN TREASON, NO CHARGE DEMANDS MORE FROM THE TRIBUNAL BEFORE
WHICH IT IS MADE, A DELIBERATE AND TEMPERATE INQUIRY.  WHETHER THIS
INQUIRY BE DIRECTED TO THE FACT OR TO THE LAW, NONE CAN BE MORE SOLEMN,
NONE MORE IMPORTANT TO THE CITIZEN OR TO THE GOVERNMENT; NONE CAN MORE
AFFECT THE SAFETY OF BOTH. 

"...  IT IS, THEREFORE, MORE SAFE, AS WELL AS MORE CONSONANT TO THE
PRINCIPLES OF OUR CONSTITUTION, THAT THE CRIME OF TREASON SHOULD NOT BE
EXTENDED BY CONSTRUCTION TO DOUBTFUL CASES; AND THAT CRIMES NOT CLEARLY
WITHIN THE CONSTITUTIONAL DEFINITION, SHOULD RECEIVE SUCH PUNISHMENT AS
THE LEGISLATURE IN ITS WISDOM MAY PROVIDE."  EX PARTE BOLLMAN, 4 CRANCH
75, 125, 127. 

IT IS NOT DIFFICULT TO FIND GROUNDS UPON WHICH TO QUARREL WITH THIS
CONSTITUTIONAL PROVISION.  PERHAPS THE FRAMERS PLACED RATHER MORE
RELIANCE ON DIRECT TESTIMONY THAN MODERN RESEARCHES IN PSYCHOLOGY
WARRANT.  OR IT MAY BE CONSIDERED THAT SUCH A QUANTITATIVE MEASURE OF
PROOF, SUCH A MECHANICAL CALIBRATION OF EVIDENCE IS A CRUDE DEVICE AT
BEST OR THAT ITS PROTECTION OF INNOCENCE IS TOO FORTUITOUS TO WARRANT
SO UNSELECTIVE AN OBSTACLE TO CONVICTION.  CERTAINLY THE TREASON RULE,
WHETHER WISELY OR NOT, IS SEVERELY RESTRICTIVE.  IT MUST BE REMEMBERED,
HOWEVER, THAT THE CONSTITUTIONAL CONVENTION WAS WARNED BY JAMES WILSON
THAT "TREASON MAY SOMETIMES BE PRACTICED IN SUCH A MANNER, AS TO RENDER
PROOF EXTREMELY DIFFICULT - AS IN A TRAITOROUS CORRESPONDENCE WITH AN
ENEMY."  FN55  THE PROVISION WAS ADOPTED NOT MERELY IN SPITE OF THE
DIFFICULTIES IT PUT IN THE WAY OF PROSECUTION BUT BECAUSE OF THEM.  AND
IT WAS NOT BY WHIM OR BY ACCIDENT, BUT BECAUSE ONE OF THE MOST
VENERATED OF THAT VENERATED GROUP CONSIDERED THAT "PROSECUTIONS FOR
TREASON WERE GENERALLY VIRULENT."  TIME HAS NOT MADE THE ACCUSATION OF
TREACHERY LESS POISONOUS, NOR THE TASK OF JUDGING ONE CHARGED WITH
BETRAYING THE COUNTRY, INCLUDING HIS TRIERS, LESS SUSCEPTIBLE TO THE
INFLUENCE OF SUSPICION AND RANCOR.  THE INNOVATIONS MADE BY THE
FOREFATHERS IN THE LAW OF TREASON WERE CONCEIVED IN A FAITH SUCH AS
PAINE PUT IN THE MAXIM THAT "HE THAT WOULD MAKE HIS OWN LIBERTY SECURE
MUST GUARD EVEN HIS ENEMY FROM OPPRESSION; FOR IF HE VIOLATES THIS DUTY
HE ESTABLISHES A PRECEDENT THAT WILL REACH HIMSELF."  FN56  WE STILL
PUT TRUST IN IT. 

WE HOLD THAT OVERT ACTS 1 AND 2 ARE INSUFFICIENT AS PROVED TO SUPPORT
THE JUDGMENT OF CONVICTION, WHICH ACCORDINGLY IS REVERSED. 

FN1  18 U.S.C. SEC. 1, DERIVED FROM ACT OF APRIL 30, 1790, C. 9, SEC.
1, 1 STAT. 112. 

FN2  ARTICLE III, SEC. 3. 

FN3  259 F. 685, 690(S.D.N.Y. 1919). 

FN4  THIS VIEW WAS RECENTLY FOLLOWED BY JUDGE CLANCY IN DISTRICT
COURT, IN DISMISSING AN INDICTMENT FOR TREASON.  UNITED STATES V.
LEINER, S.D.N.Y. 1943(UNREPORTED). 

FN5  UNITED STATES V. CRAMER, 137 F.2D 888, 896. 

FN6  259 F. 673, 677(S.D.N.Y. 1919). 

FN7  "AN OVERT ACT, IN CRIMINAL LAW, IS AN OUTWARD ACT DONE IN
PURSUANCE AND IN MANIFESTATION OF AN INTENT OR DESIGN; AN OVERT ACT IN
THIS CASE MEANS SOME PHYSICAL ACTION DONE FOR THE PURPOSE OF CARRYING
OUT OR AFFECTING THE TREASON."  UNITED STATES V. HAUPT, 47 F.SUPP. 
836, 839(N.D. ILL. 1942), REVERSED ON OTHER GROUNDS, 136 F.2D
661(C.C.A.7TH, 1943). 

"THE OVERT ACT IS THE DOING OF SOME ACTUAL ACT, LOOKING TOWARDS THE
ACCOMPLISHMENT OF THE CRIME."  UNITED STATES V. STEPHAN, 50 F.SUPP. 
738, 742-43 N. (E.D. MICH. 1943). 

FN8  320 U.S. 730. 

FN9  MAY 22, 1944.  COUNSEL FOR PETITIONER, ALTHOUGH ASSIGNED BY THE
TRIAL COURT, HAS RESPONDED WITH EXTENDED RESEARCHES.  THE SOLICITOR
GENERAL ENGAGED SCHOLARS NOT OTHERWISE INVOLVED IN CONDUCT OF THE CASE
TO COLLECT AND IMPARTIALLY TO SUMMARIZE STATUTES, DECISIONS, AND TEXTS
FROM ROMAN, CONTINENTAL, AND CANON LAW AS WELL AS FROM ENGLISH,
COLONIAL, AND AMERICAN LAW SOURCES.  THE PART OF THE STUDY DEALING WITH
AMERICAN MATERIALS HAS BEEN MADE AVAILABLE THROUGH PUBLICATION IN 58
HARV. L. REV. 226 ET SEQ. COUNSEL HAVE LIGHTENED OUR BURDEN OF
EXAMINATION OF THE CONSIDERABLE ACCUMULATION OF HISTORICAL MATERIALS. 

FN10  THE COMMITTEE INCLUDED JOHN ADAMS, THOMAS JEFFERSON, JOHN
RUTLEDGE, JAMES WILSON, AND ROBERT LIVINGSTON.  SEE C. F. ADAMS, LIFE
OF JOHN ADAMS IN 1 WORKS OF JOHN ADAMS (1856) 224-25. 

FN11  "RESOLVED, THAT ALL PERSONS ABIDING WITHIN ANY OF THE UNITED
COLONIES, AND DERIVING PROTECTION FROM THE LAWS OF THE SAME, OWE
ALLEGIANCE TO THE SAID LAWS, AND ARE MEMBERS OF SUCH COLONY; AND THAT
ALL PERSONS PASSING THROUGH, VISITING, OR MAKE A TEMPORARY STAY IN ANY
OF THE SAID COLONIES, BEING ENTITLED TO THE PROTECTION OF THE LAWS
DURING THE TIME OF SUCH PASSAGE, VISITATION OR TEMPORARY STAY, OWE,
DURING THE SAME TIME, ALLEGIANCE THERETO: 

"THAT ALL PERSONS, MEMBERS OF, OR OWING ALLEGIANCE TO ANY OF THE
UNITED COLONIES, AS BEFORE DESCRIBED, WHO SHALL LEVY WAR AGAINST ANY OF
THE SAID COLONIES WITHIN THE SAME, OR BE ADHERENT TO THE KING OF GREAT
BRITAIN, OR OTHERS THE ENEMIES OF THE SAID COLONIES, OR ANY OF THEM,
WITHIN THE SAME, GIVING TO HIM OR THEM AID AND COMFORT, ARE GUILTY OF
TREASON AGAINST SUCH COLONY: 

"THAT IT BE RECOMMENDED TO THE LEGISLATURES OF THE SEVERAL UNITED
COLONIES, TO PASS LAWS FOR PUNISHING, IN SUCH MANNER AS TO THEM SHALL
SEEM FIT, SUCH PERSONS BEFORE DESCRIBED, AS SHALL BE PROBABLY ATTAINTED
OF OPEN DEED, BY PEOPLE OF THEIR CONDITION, OF ANY OF THE TREASONS
BEFORE DESCRIBED."  5 JOURNALS OF THE CONTINENTAL CONGRESS (1906) 475. 
FN12  NINE STATES SUBSTANTIALLY ADOPTED THE RECOMMENDATION OF THE
CONGRESS:  DELAWARE, MASSACHUSETTS, NEW HAMPSHIRE, NEW JERSEY, NEW
YORK, NORTH CAROLINA, PENNSYLVANIA, RHODE ISLAND, VIRGINIA.  (THE
VIRGINIA LAW, THOUGH IT DID NOT COPY IN FULL THE RECOMMENDATION OF
CONGRESS, WAS DRAWN BY JEFFERSON, AMONG OTHERS, AND HENCE PROBABLY CAN
BE REGARDED AS ORIGINATING IN THE SAME SOURCE AS THE OTHERS.)  THREE
STATES HAD BASIC TREASON STATUTES NOT PATTERNED ON THE CONGRESSIONAL
MODEL, ONE ANTEDATING THE LATTER:  CONNECTICUT, MARYLAND, SOUTH
CAROLINA.  GEORGIA IS NOT FOUND TO HAVE ENACTED ANY GENERAL TREASON
STATUTE, ALTHOUGH IT PASSED A NUMBER OF SEPARATE ACTS OF ATTAINDER. 

THE MARYLAND ACT DECLARED THAT "THE SEVERAL CRIMES AFORESAID SHALL
RECEIVE THE SAME CONSTRUCTIONS THAT HAVE BEEN GIVEN TO SUCH OF THE SAID
CRIMES AS ARE ENUMERATED IN THE STATUTE OF EDWARD THE THIRD, COMMONLY
CALLED THE STATUTE OF TREASONS."  NONE OF THE STATUTES CONTAINED
NEGATIVE LANGUAGE, LIMITING THE DEFINITION OF TREASON EXPRESSLY TO THAT
SET FORTH IN THE STATUTE.  IN GENERAL, TOO, THEY ADDED TO THE
DEFINITION OF THE MODEL RECOMMENDED BY CONGRESS OTHER SPECIFIC KINDS OF
TREASON.  THUS A NUMBER DEFINED TREASON AS INCLUDING CONSPIRACY TO LEVY
WAR.  CONSPIRACY TO ADHERE TO THE ENEMY AND GIVE AID AND COMFORT WAS
ALSO INCLUDED IN SEVERAL, OR INCORPORATED BY SEPARATE ACTS.  MUCH
EXPLICIT ATTENTION WAS GIVEN TO THE PROBLEM OF CONTACT WITH THE ENEMY. 
CONVEYING OF INTELLIGENCE OR CARRYING ON OF CORRESPONDENCE WITH THE
ENEMY WERE EXPRESSLY MENTIONED.  ONE TYPICAL PROVISION DECLARED GUILTY
OF TREASON THOSE PERSONS WHO WERE "ADHERENT TO ...  THE ENEMIES OF THIS
STATE WITHIN THE SAME, OR TO THE ENEMIES OF THE UNITED STATES  ...
GIVING TO  ...  THEM AID OR COMFORT, OR BY GIVING TO  ...  THEM ADVICE
OR INTELLIGENCE EITHER BY LETTERS, MESSAGES, WORDS, SIGNS OR TOKENS, OR
IN ANY WAY WHATSOEVER, OR BY PROCURING FOR, OR FURNISHING TO  ...  THEM
ANY KIND OF PROVISIONS OR WARLIKE STORES  ..."  OTHER PROVISIONS
REFERRED TO "JOINING THEIR ARMIES," "INLISTING OR PERSUADING OTHERS TO
INLIST FOR THAT PURPOSE," "FURNISHING ENEMIES WITH ARMS OR AMMUNITION,
PROVISION OR ANY OTHER ARTICLES FOR SUCH THEIR AID OR COMFORT,"
"WILFULLY BETRAYING, OR VOLUNTARILY YIELDING OR DELIVERING ANY VESSEL
BELONGING TO THIS STATE OR THE UNITED STATES TO THE ENEMIES OF THE
UNITED STATES OF AMERICA"; AND TO PERSONS WHO "HAVE JOINED, OR SHALL
HEREAFTER JOIN THE ENEMIES OF THIS STATE, OR PUT THEMSELVES UNDER THE
POWER AND PROTECTION OF THE SAID ENEMIES, WHO SHALL COME INTO THIS
STATE AND ROB OR PLUNDER ANY PERSON OR PERSONS OF THEIR GOODS AND
EFFECTS, OR SHALL BURN ANY DWELLING HOUSE OR OTHER BUILDING, OR BE
AIDING OR ASSISTING THEREIN," OR WHO SHOULD MALICIOUSLY AND WITH AN
INTENT TO OBSTRUCT THE SERVICE DISSUADE OTHERS FROM ENLISTING, OR
MALICIOUSLY SPREAD FALSE RUMORS CONCERNING THE FORCES OF EITHER SIDE
SUCH AS TO ALIENATE THE AFFECTIONS OF THE PEOPLE FROM THE GOVERNMENT
"OR TO TERRIFY OR DISCOURAGE THE GOOD SUBJECTS OF THIS STATE, OR TO
DISPOSE THEM TO FAVOR THE PRETENSIONS OF THE ENEMY," OR WHO "SHALL TAKE
A COMMISSION OR COMMISSIONS FROM THE KING OF GREAT BRITAIN, OR ANY
UNDER HIS AUTHORITY, OR OTHER THE ENEMIES OF THIS STATE, OR THE UNITED
STATES OF AMERICA." 

A NUMBER OF THE STATUTES REQUIRED "THE TESTIMONY OF TWO LAWFUL AND
CREDIBLE WITNESSES."  BUT THE REQUIREMENT WAS NOT LINKED TO THE PROOF
OF OVERT ACTS, AND THERE WAS NO SUGGESTION OF THE TYPE OF PROVISION
LATER EMBODIED IN THE CONSTITUTION.  SUPPLEMENTARY ACTS CREATING
SPECIAL TREASONABLE OFFENSES TENDED TO OMIT ANY REQUIREMENT AS TO
QUANTUM OF PROOF. 

SEE HURST, OP. CIT. SUPRA, 58 HARV. L. REV. AT 248 ET SEQ. 

FN13  FOR EXAMPLE, THE NEW YORK ACT OF MARCH 30, 1781, AFTER RECITING
THAT IT WAS NECESSARY TO MAKE FURTHER PROVISION RESPECTING TREASON IN
ORDER TO PREVENT ADHERENCE TO THE KING, MADE IT A FELONY TO DECLARE OR
MAINTAIN "THAT THE KING OF GREAT BRITAIN HATH, OR OF RIGHT OUGHT TO
HAVE, ANY AUTHORITY, OR DOMINION, IN OR OVER THIS STATE, OR THE
INHABITANTS THEREOF," OR TO PERSUADE OR ATTEMPT TO PERSUADE ANY
INHABITANT TO RENOUNCE ALLEGIANCE TO THE STATE OR ACKNOWLEDGE
ALLEGIANCE TO THE KING, OR TO AFFIRM ONE'S OWN ALLEGIANCE TO THE KING. 
A PERSON CONVICTED WAS TO "SUFFER THE PAINS AND PENALTIES PRESCRIBED BY
LAW IN CASES OF FELONY WITHOUT BENEFIT OF CLERGY," EXCEPT THAT THE
COURT MIGHT, INSTEAD OF PRESCRIBING DEATH, SENTENCE TO THREE YEARS'
SERVICE ON AN AMERICAN WARSHIP.  LAWS OF THE STATE OF NEW-YORK
(POUGHKEEPSIE, 1782) 4TH SESS., CH. XLVIII.  VIRGINIA IMPOSED A FINE
NOT EXCEEDING 20,000 POUNDS, AND IMPRISONMENT UP TO FIVE YEARS "IF ANY
PERSON RESIDING OR BEING WITHIN THIS COMMONWEALTH SHALL  ...  BY ANY
WORD, OPEN DEED, OR ACT, ADVISEDLY AND WILLINGLY MAINTAIN AND DEFEND
THE AUTHORITY, JURISDICTION, OR POWER, OF THE KING OR PARLIAMENT OF
GREAT BRITAIN, HERETOFORE CLAIMED AND EXERCISED WITHIN THIS COLONY, OR
SHALL ATTRIBUTE ANY SUCH AUTHORITY, JURISDICTION, OR POWER, TO THE KING
OR PARLIAMENT OF GREAT BRITAIN  ..."  LAWS, OCTOBER, 1776, CH. V, 9
HENING, STATUTES AT LARGE (1823) 170.  SEE ALSO HURST, OP. CIT. SUPRA,
58 HARV. L. REV. AT 265-67. 

FN14  A SIMILAR SITUATION PREVAILED DURING THE CIVIL WAR, WHEN
TREASON PROSECUTIONS WERE INSTITUTED AGAINST CITIZENS OF SOME SOUTHERN
STATES FOR TREASON TO THE STATE, CONSISTING OF ADHERENCE TO THE UNITED
STATES.  SEE ROBINSON, JUSTICE IN GREY, PP. 176, 199, 201, 202, 270,
289, 380, 385, 408. 

FN15  SEE HURST, TREASON IN THE UNITED STATES (1944), 58 HARV. L.
REV. 226, 268-71.  ALTHOUGH THESE ACTS, DEALING WITH WITHDRAWAL TO
ENEMY TERRITORY, IMPOSED IN GENERAL ONLY FORFEITURE AND BANISHMENT,
SOME DID REINFORCE THESE PENALTIES WITH THE THREAT OF DEATH IF THE
PERSON SHOULD LATER BE FOUND WITHIN THE STATE.  ID., 272. 

FN16  THE ONLY PRE-REVOLUTIONARY TREASON TRIAL OF WHICH THERE IS AN
EXTENSIVE RECORD IS KING V. BAYARD (1702), A NEW YORK PROSECUTION UNDER
AN ACT OF MAY 6, 1691, WHICH MADE IT TREASON "BY FORCE OF ARMS OR
OTHERWISE TO DISTURB THE PEACE GOOD AND QUIET OF THIS THEIR MAJESTYES
GOVERNMENT AS IT IS NOW ESTABLISHED."  (THE ACT WAS THOUGHT BY THE HOME
AUTHORITIES TO BE OBJECTIONABLY BROAD AND VAGUE AND WAS LATER
REPEALED.)  SEE THE TRIAL OF NICHOLAS BAYARD, 14 HOWELL'S STATE TRIALS
471; 10 LAWSON, AMERICAN STATE TRIALS, 518; HURST, OP. CIT. SUPRA, 58
HARV. L. REV. AT 233.  FOR OTHER MATERIAL ON COLONIAL TREASON
PROSECUTIONS, SEE HURST, OP. CIT. SUPRA, 58 HARV. L. REV. AT 234, N.
15. 

FN17  IN THE EARLY PART OF THE COLONIAL PERIOD, CHARTERS AND GRANTS
GAVE ROYAL GOVERNORS AUTHORITY TO USE MARTIAL LAW FOR SUPPRESSION OF
"REBELLION," "SEDITION," AND "MUTINY," AND REFERENCES TO TREASON WERE
NOT IN THE TRADITIONAL LANGUAGE.  A PROVISION OF THE GENERAL LAWS OF
NEW PLIMOUTH COLONY, 1671, IS REPRESENTATIVE: 

"3.  TREASON AGAINST THE PERSON OF OUR SOVERAIGN LORD THE KING, THE
STATE AND COMMON-WEALTH OF ENGLAND, SHALL BE PUNISHED BY DEATH. 

"4.  THAT WHOSOEVER SHALL CONSPIRE AND ATTEMPT ANY INVASION,
INSURRECTION, OR PUBLICK REBELLION AGAINST THIS JURISDICTION, OR THE
SURPRIZAL OF ANY TOWN, PLANTATION, FORTIFICATION OR AMMUNITION, THEREIN
PROVIDED FOR THE SAFETY THEREOF, OR SHALL TREACHEROUSLY AND
PERFIDIOUSLY ATTEMPT AND ENDEAVOR THE ALTERATION AND SUBVERSION OF THE
FUNDAMENTAL FRAME AND CONSTITUTIONS OF THIS GOVERNMENT; EVERY SUCH
PERSON SHALL BE PUT TO DEATH." 

BUT THE BULK OF COLONIAL LEGISLATION PRIOR TO THE REVOLUTION DREW
EXTENSIVELY ON ENGLISH LAW, ESPECIALLY THE STATUTE 25 EDWARD III.  SOME
OF THE ACTS SUBSTANTIALLY ADOPTED THE LANGUAGE OF THE LATTER STATUTE,
WITH ADDITIONS, AND SOME SIMPLY DECLARED THAT THE OFFENSE OF TREASON
SHOULD FOLLOW THE ENGLISH LAW.  WITH THE EXCEPTION OF GEORGIA AND NEW
JERSEY, ALL THE COLONIES EVENTUALLY ADOPTED ONE OR THE OTHER TYPE
STATUTE.  IN ADDITION, THE ENGLISH LAW OF TREASON ITSELF APPLIED, TO AN
UNDEFINED EXTENT, AND SEVERAL COLONIAL ACTS WERE DISALLOWED ON THE
THEORY THAT THEY COVERED GROUND ALREADY OCCUPIED BY THE MOTHER
COUNTRY'S LEGISLATION.  THE COLONIES WHICH ENACTED THEIR OWN STATUTES
PATTERNED AFTER 25 EDWARD III DID NOT NARROW ITS TERMS.  SEVERAL
EXPRESSLY INCLUDED THE TREASON OF COMPASSING THE DEATH OF THE KING, AND
A COUPLE EVEN MADE AN ANALOGOUS OFFENSE OF COMPASSING THE DEATH OF THE
PROPRIETOR.  THE OFFENSE OF LEVYING WAR AGAINST THE KING WAS GIVEN A
BROAD DEFINITION; SOME OF THE COLONIES EXPRESSLY INCLUDED VARIOUS FORMS
OF "CONSTRUCTIVE" LEVYING OF WAR WHICH HAD BEEN PUT INTO THE ENGLISH
STATUTE BY JUDICIAL CONSTRUCTION, IN GENERAL EXTENDING THE CRIME TO
DOMESTIC DISTURBANCES; AND SOME OF THE STATUTES MADE CONSPIRACY TO LEVY
WAR SUFFICIENT TO CONSTITUTE THE CRIME OF LEVYING WAR.  SOME SPECIFIC
ATTENTION WAS GIVEN IN SEPARATE LEGISLATION AT VARIOUS TIMES TO CONTACT
WITH THE ENEMY, LEGISLATION COMPARABLE TO THAT SUBSEQUENTLY ENACTED
DURING THE REVOLUTIONARY PERIOD. 

MOST OF THE COLONIAL TREASON ACTS CONTAINED TWO-WITNESS REQUIREMENTS,
WITHOUT THE ADDITIONAL QUALIFICATION LATER ADOPTED IN THE CONSTITUTION,
THAT THEY MUST BE WITNESSES TO THE SAME OVERT ACT, ALTHOUGH IT WAS
REQUIRED THAT THEY BE WITNESSES TO THE SAME GENERAL KIND OF TREASON. 

SEE GENERALLY HURST, OP. CIT. SUPRA, 58 HARV. L. REV. AT 226-45. 

FN18  "THE MEN WHO FRAMED THAT INSTRUMENT REMEMBERED THE CRIMES THAT
HAD BEEN PERPETRATED UNDER THE PRETENSE OF JUSTICE; FOR THE MOST PART
THEY HAD BEEN TRAITORS THEMSELVES, AND HAVING RISKED THEIR NECKS UNDER
THE LAW THEY FEARED DESPOTISM AND ARBITRARY POWER MORE THAN THEY FEARED
TREASON."  3 ADAMS, HISTORY OF THE UNITED STATES, 468. 

"EVERY MEMBER OF THAT CONVENTION - EVERY OFFICER AND SOLDIER OF THE
REVOLUTION FROM WASHINGTON DOWN TO PRIVATE, EVERY MAN OR WOMAN WHO HAD
GIVEN SUCCOR OR SUPPLIES TO A MEMBER OF THE PATRIOT ARMY, EVERYBODY WHO
HAD ADVOCATED AMERICAN INDEPENDENCE  ...  COULD HAVE BEEN PROSECUTED
AND MIGHT HAVE BEEN CONVICTED AS 'TRAITORS' UNDER THE BRITISH LAW OF
CONSTRUCTIVE TREASON."  3 BEVERIDGE, LIFE OF JOHN MARSHALL, 402, 403. 

FN19  THIS WAS DOUBTLESS THE MEANING OF FRANKLIN'S QUIP AT THE
SIGNING OF THE DECLARATION OF INDEPENDENCE THAT IF THE SIGNERS DID NOT
HANG TOGETHER THEY SHOULD HANG SEPARATELY.  IT WAS ALSO THE MEANING OF
THE CRIES OF "TREASON" WHICH INTERRUPTED PATRICK HENRY IN THE SPEECH IN
THE VIRGINIA HOUSE OF BURGESSES EVOKING THE FAMOUS REPLY "IF THIS BE
TREASON, MAKE THE MOST OF IT." 

FN20  1 JOURNALS OF THE CONTINENTAL CONGRESS, 65.  SEE ALSO 1
BURNETT, ED., LETTERS OF MEMBERS OF THE CONTINENTAL CONGRESS (1921) 43,
44, N. 36. 

FN21  THE MEN WHO WERE RESPONSIBLE FOR FRAMING OUR CONSTITUTION WERE
INFLUENCED BY EIGHTEENTH CENTURY LIBERAL THOUGHT FROM BOTH FRENCH AND
ENGLISH SOURCES.  FRENCH INFLUENCES, MORE PHILOSOPHICAL THAN LEGAL IN
CHARACTER, WERE PARTICULARLY STRONG WITH FRANKLIN, WHO TOOK A
SIGNIFICANT PART IN FRAMING THE TREASON CLAUSE.  FRANKLIN HAD BEEN A
MEMBER OF THE FRENCH ACADEMY OF SCIENCES SINCE 1772 AND HAD MANY
FRIENDS AMONG FRENCH INTELLECTUALS.  HE SPENT MUCH TIME IN ENGLAND AND
IN FRANCE, TO WHICH HE WAS SENT BY THE CONTINENTAL CONGRESS AS
COMMISSIONER IN 1776.  HE REMAINED UNTIL 1783, WHEN HE SIGNED THE
TREATY OF PEACE WITH ENGLAND, AND THEREAFTER UNTIL 1785 AS MINISTER TO
FRANCE.  BECKER, FRANKLIN, 6 DICTIONARY OF AMERICAN BIOGRAPHY 585; 9
ENCYCLOPEDIA BRITANNICA (14TH ED.)  693.  JEFFERSON, A STRONG INFLUENCE
WITH THE MEN OF THAT PERIOD, WAS SENT TO FRANCE BY THE CONTINENTAL
CONGRESS TO ASSIST FRANKLIN, REMAINING THERE FROM 1784 TO 1789,
SUCCEEDING FRANKLIN IN 1785 AS MINISTER.  JEFFERSON WAS SO CLOSELY IN
TOUCH WITH FRENCH REVOLUTIONARY THOUGHT THAT IN JULY 1789 HE WAS
INVITED TO ASSIST IN THE DELIBERATIONS OF THE COMMITTEE OF THE FRENCH
NATIONAL ASSEMBLY TO DRAFT A CONSTITUTION, BUT DECLINED OUT OF RESPECT
FOR HIS POSITION.  SEE MALONE, JEFFERSON, 10 DICTIONARY OF AMERICAN
BIOGRAPHY 17; 12 ENCYCLOPEDIA BRITANNICA (14TH ED.)  988.  SEE ALSO,
GENERALLY, CHINARD, THOMAS JEFFERSON, THE APOSTLE OF AMERICANISM.  BEST
KNOWN IN AMERICA OF THE FRENCH WRITINGS WAS MONTESQUIEU'S L'ESPRIT DES
LOIS, WHICH APPEARED IN FRENCH IN 1748.  (AN ENGLISH EDITION WAS
PUBLISHED IN LONDON IN 1750.)  BOOK 12 THEREOF WAS DEVOTED TO HIS
PHILOSOPHICAL REACTIONS TO THE ABUSES OF TREASON.  IT IS HARDLY A
COINCIDENCE THAT THE TREASON CLAUSE OF THE CONSTITUTION EMBODIES EVERY
ONE OF THE PRECEPTS SUGGESTED BY MONTESQUIEU IN DISCUSSING THE EXCESSES
OF ANCIENT AND EUROPEAN HISTORY. 

SOME OF HIS PRECEPTS WERE:  "IF THE CRIME OF HIGH TREASON BE
INDETERMINATE, THIS ALONE IS SUFFICIENT TO MAKE THE GOVERNMENT
DEGENERATE INTO ARBITRARY POWER."  (BOOK 12, CH. 7, OF THE CRIME OF
HIGH TREASON.)  "THE LAWS DO NOT TAKE UPON THEM TO PUNISH ANY OTHER
THAN OVERT ACTS."  (BOOK 12, CH. 11, OF THOUGHTS.)  "NOTHING RENDERS
THE CRIME OF HIGH TREASON MORE ARBITRARY THAN DECLARING PEOPLE GUILTY
OF IT FOR INDISCREET SPEECHES  ....  WORDS DO NOT CONSTITUTE AN OVERT
ACT; THEY REMAIN ONLY IN IDEA  ....  OVERT ACTS DO NOT HAPPEN EVERY
DAY; THEY ARE EXPOSED TO THE EYE OF THE PUBLIC; AND A FALSE CHARGE WITH
REGARD TO MATTERS OF FACT MAY BE EASILY DETECTED.  WORDS CARRIED INTO
ACTION ASSUME THE NATURE OF THAT ACTION.  THUS A MAN WHO GOES INTO A
PUBLIC MARKET-PLACE TO INCITE THE SUBJECT TO REVOLT, INCURS THE GUILT
OF HIGH TREASON, BECAUSE THE WORDS ARE JOINED TO THE ACTION, AND
PARTAKE OF ITS NATURE.  IT IS NOT THE WORDS THAT ARE PUNISHED BUT AN
ACTION IN WHICH THE WORDS ARE EMPLOYED."  (BOOK 12, CH. 12, OF
INDISCREET SPEECHES.)  "THOSE LAWS WHICH CONDEMN A MAN TO DEATH ON THE
DEPOSITION OF A SINGLE WITNESS, ARE FATAL TO LIBERTY."  (BOOK 12, CH.
3, OF THE LIBERTY OF THE SUBJECT.) 

BOTH FRENCH AND ENGLISH INFLUENCES ON AMERICAN THOUGHT AS SHOWN BY
JEFFERSON'S WRITINGS ARE TRACED BY PERRY, PURITANISM AND DEMOCRACY
(1945) 126, 130, 134, 158, 182, 184, 185. 

FN22  "DECLARATION WHAT OFFENCES SHALL BE ADJUDGED TREASON.  ITEM,
WHEREAS DIVERS OPINIONS HAVE BEEN BEFORE THIS TIME IN WHAT CASE TREASON
SHALL BE SAID, AND IN WHAT NOT; THE KING, AT THE REQUEST OF THE LORDS
AND OF THE COMMONS, HATH MADE A DECLARATION IN THE MANNER AS HEREAFTER
FOLLOWETH, THAT IS TO SAY; WHEN A MAN DOTH COMPASS OR IMAGINE THE DEATH
OF OUR LORD THE KING, OR OF OUR LADY HIS QUEEN OR OF THEIR ELDEST SON
AND HEIR; OR IF A MAN DO VIOLATE THE KING'S COMPANION, OR THE KING'S
ELDEST DAUGHTER UNMARRIED, OR THE WIFE THE KING'S ELDEST SON AND HEIR;
OR IF A MAN DO LEVY WAR AGAINST OUR LORD THE KING IN HIS REALM, OR BE
ADHERENT TO THE KING'S ENEMIES IN HIS REALM, GIVING TO THEM AID AND
COMFORT IN THE REALM, OR ELSEWHERE, AND THEREOF BE PROBABLY ATTAINTED
OF OPEN DEED BY THE PEOPLE OF THEIR CONDITION:  AND IF A MAN
COUNTERFEIT THE KING'S GREAT OR PRIVY SEAL, OR HIS MONEY; AND IF A MAN
BRING FALSE MONEY INTO THIS REALM, COUNTERFEIT TO THE MONEY OF ENGLAND,
AS THE MONEY CALLED LUSHBURGH, OR OTHER, LIKE TO THE SAID MONEY OF
ENGLAND, KNOWING THE MONEY TO BE FALSE, TO MERCHANDISE OR MAKE PAYMENT
IN DECEIT OF OUR SAID LORD THE KING AND OF HIS PEOPLE; AND IF A MAN
SLEA THE CHANCELLOR, TREASURER, OR THE KING'S JUSTICES OF THE ONE BENCH
OR THE OTHER, JUSTICES IN EYRE, OR JUSTICES OF ASSISE, AND ALL OTHER
JUSTICES ASSIGNED TO HEAR AND DETERMINE, BEING IN THEIR PLACES, DOING
THEIR OFFICES:  AND IT IS TO BE UNDERSTOOD, THAT IN THE CASES ABOVE
REHEARSED, THAT OUGHT TO BE JUDGED TREASON WHICH EXTENDS TO OUR LORD
THE KING, AND HIS ROYAL MAJESTY:  AND OF SUCH TREASON THE FORFEITURE OF
THE ESCHEATS PERTAINETH TO OUR SOVEREIGN LORD, AS WELL AS OF THE LANDS
AND TENEMENTS HOLDEN OF OTHER, AS OF HIMSELF:  AND MOREOVER THERE IS
ANOTHER MANNER OF TREASON, THAT IS TO SAY, WHEN A SERVANT SLAYETH HIS
MASTER, OR A WIFE HER HUSBAND, OR WHEN A MAN SECULAR OR RELIGIOUS
SLAYETH HIS PRELATE, TO WHOM HE OWETH FAITH AND OBEDIENCE; AND OF SUCH
TREASON THE ESCHEATS OUGHT TO PERTAIN TO EVERY LORD OF HIS OWN FEE. 
AND BECAUSE THAT MANY OTHER LIKE CASES OF TREASON MAY HAPPEN IN TIME TO
COME, WHICH A MAN CANNOT THINK OR DECLARE AT THIS PRESENT TIME; IT IS
ACCORDED, THAT IF ANY OTHER CASE, SUPPOSED TREASON, WHICH IS NOT ABOVE
SPECIFIED, DOTH HAPPEN BEFORE ANY JUSTICES, THE JUSTICES SHALL TARRY
WITHOUT ANY GOING TO JUDGEMENT OF THE TREASON, TILL THE CAUSE BE SHEWED
AND DECLARED BEFORE THE KING AND HIS PARLIAMENT, WHETHER IT OUGHT TO BE
JUDGED TREASON OR OTHER FELONY.  AND IF PERCASE ANY MAN OF THIS REALM
RIDE ARMED COVERTLY OR SECRETLY WITH MEN OF ARMS AGAINST ANY OTHER, TO
SLAY HIM, OR ROB HIM, OR TAKE HIM, OR RETAIN HIM TILL HE HATH MADE FINE
OR RANSOM FOR TO HAVE HIS DELIVERANCE, IT IS NOT THE MIND OF THE KING
NOR HIS COUNCIL, THAT IN SUCH CASE IT SHALL BE JUDGED TREASON BUT SHALL
BE JUDGED FELONY OR TRESPASS, ACCORDING TO THE LAWS OF THE LAND OF OLD
TIME USED, AND ACCORDING AS THE CASE REQUIRETH."  4 HALSBURY'S STATUTES
OF ENGLAND 273. 

FN23  STEPHEN SAID OF IT:  "IN QUIET TIMES IT IS SELDOM PUT IN FORCE,
AND IF BY ANY ACCIDENT IT IS NECESSARY TO APPLY IT, THE NECESSITY FOR
DOING SO IS OBVIOUS.  FOR REVOLUTIONARY PERIODS IT IS OBVIOUSLY AND
ALWAYS INSUFFICIENT, AND AT SUCH TIMES IT IS USUALLY SUPPLEMENTED BY
ENACTMENTS WHICH OUGHT TO BE REGARDED IN THE LIGHT OF WAR MEASURES, BUT
WHICH ARE USUALLY REPRESENTED BY THOSE AGAINST WHOM THEY ARE DIRECTED
AS MONSTROUS INVASIONS OF LIBERTY.  THE STRUGGLE BEING OVER, THE
STATUTE OF 25 EDW.  3 IS REINSTATED AS THE SOLE DEFINITION OF TREASON,
AND IN THIS WAY IT HAS BECOME THE SUBJECT OF A SORT OF SUPERSTITIOUS
REVERENCE."  2 STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883)
250-51; SEE ALSO 3 HOLDSWORTH (4TH ED. 1935) 287. 

BLACKSTONE SAYS:  "BUT AFTERWARDS, BETWEEN THE REIGN OF HENRY THE
FOURTH AND QUEEN MARY, AND PARTICULARLY IN THE BLOODY REIGN OF HENRY
THE EIGHTH, THE SPIRIT OF INVENTING NEW AND STRANGE TREASONS WAS
REVIVED; AMONG WHICH WE MAY RECKON THE OFFENCES OF CLIPPING MONEY;
BREAKING PRISON OR RESCUE, WHEN THE PRISONER IS COMMITTED FOR TREASON;
BURNING HOUSES TO EXTORT MONEY; STEALING CATTLE BY WELSHMEN;
COUNTERFEITING FOREIGN COIN; WILFUL POISONING; EXECRATIONS AGAINST THE
KING; CALLING HIM OPPROBRIOUS NAMES BY PUBLIC WRITING; COUNTERFEITING
THE SIGN MANUAL OR SIGNET; REFUSING TO ABJURE THE POPE; DEFLOWERING, OR
MARRYING WITHOUT THE ROYAL LICENCE, ANY OF THE KING'S CHILDREN,
SISTERS, AUNTS, NEPHEWS, OR NIECES; BARE SOLICITATION OF THE CHASTITY
OF THE QUEEN OR PRINCESS, OR ADVANCES MADE BY THEMSELVES; MARRYING WITH
THE KING, BY A WOMAN NOT A VIRGIN, WITHOUT PREVIOUSLY DISCOVERING TO
HIM SUCH HER UNCHASTE LIFE; JUDGING OR BELIEVING (MANIFESTED BY ANY
OVERT ACT) THE KING TO HAVE BEEN LAWFULLY MARRIED TO ANNE OF CLEVE;
DEROGATING FROM THE KING'S ROYAL STILE AND TITLE; IMPUGNING HIS
SUPREMACY; AND ASSEMBLING RIOTOUSLY TO THE NUMBER OF TWELVE, AND NOT
DISPERSING UPON PROCLAMATION  ..."  4 BLACKSTONE 86-87. 

FN24  REX V. CASEMENT, 1 K.B. 98(1917); KNOTT, TRIAL OF ROGER
CASEMENT, 184, 185. 

FN25  CHIEF AMONG THESE WERE COKE AND BLACKSTONE.  COKE EMPHASIZED
THE SALUTARY EFFECTS OF THE STATUTE OF EDWARD III IN LIMITING TREASON
PROSECUTION AND STRONGLY EMPHASIZED THE OVERT-ACT REQUIREMENT, PROBABLY
QUOTING BRACTION.  INSTITUTES OF THE LAWS OF ENGLAND, 5TH ED. (1971)
PART III, 14.  HE USED AS EXAMPLES OVERT ACTS WHICH OF THEMSELVES
APPEAR TO EVIDENCE TREASONABLE INTENT.  ID., 2, 3, AND 14.  SEE 1 HALE,
HISTORY OF THE PLEAS OF THE CROWN (1736) 86, 259.  BUT WE CANNOT BE
SURE WHETHER THIS WAS INTENDED TO IMPLY THAT ACTS FROM WHICH INTENT
WOULD BE LESS EVIDENT WOULD SUFFICE.  OTHER AUTHORS KNOWN ON THIS SIDE
OF THE WATER LEAVE US WITH LITTLE LIGHT ON OUR PARTICULAR PROBLEM. 

HALE (HISTORY OF THE PLEAS OF THE CROWN, EMLYN ED. LONDON, 1736)
FREQUENTLY USES TERMINOLOGY, FOUND IN COKE AND EARLIER WRITERS, WHICH
MIGHT MEAN THAT THE FUNCTION OF AN OVERT ACT IS TO PROVE INTENT, SAYING
THAT THE OVERT ACT IS TO "MANIFEST" OR "DECLARE" THE COMPASSING OF THE
KING'S DEATH, AND SO FORTH.  ID., 109.  BUT, AS IN THE OTHER WRITERS,
THE STATEMENTS ARE USUALLY OPEN AS WELL TO THE INTERPRETATION THAT THE
ACT MUST SHOW TRANSLATION OF THOUGHT INTO ACTION.  IN THE LATTER SENSE,
THE ACT "DECLARES" INTENT IN THAT IT SHOWS, IN THE LIGHT OF OTHER
EVIDENCE, THAT THE DEFENDANT'S THOUGHTS WERE NOT MERE IDLE DESIRES. 
THIS IS A DIFFERENT THING FROM SAYING THAT THE OVERT ACT MUST OF ITSELF
DISPLAY AN UNAMBIGUOUSLY TRAITOROUS CHARACTER.  ELSEWHERE HALE GIVES
SOME SUPPORT TO THE VIEW THAT THE ACT MAY ITSELF BE OF AN INNOCENT
CHARACTER.  DEALING WITH THE PRINCIPLE THAT WORDS ALONE CANNOT BE AN
OVERT ACT, HE SAYS THAT "WORDS MAY EXPOUND AN OVERT-ACT TO MAKE GOOD AN
INDICTMENT OF TREASON OF COMPASSING THE KING'S DEATH, WHICH OVERT-ACT
POSSIBLY OF ITSELF MAY BE INDIFFERENT AND UNAPPLICABLE TO SUCH AN
INTENT; AND THEREFORE IN THE INDICTMENT OF TREASON THEY MAY BE JOINED
WITH SUCH AN OVERT-ACT, TO MAKE THE SAME APPLICABLE AND EXPOSITIVE OF
SUCH A COMPASSING."  ID., 115.  HE ALSO DECLARES THAT THE MERE MEETING
OF PERSONS WITH THE INTENT OF PLOTTING THE KING'S DEATH IS A SUFFICIENT
OVERT-ACT FOR THE TREASON OF COMPASSING THE KING'S DEATH.  ID., 108,
109.  THESE REMARKS, HOWEVER, DEAL ONLY WITH COMPASSING THE KING'S
DEATH, AND LITTLE LIGHT IS GIVEN AS TO THE OVERT ACT IN CONNECTION WITH
LEVYING WAR AND ADHERING TO THE ENEMY.  WITH COKE, HALE TAKES THE
POSITION THAT A MERE MEETING OF PERSONS TO CONSPIRE, THOUGH SUFFICIENT
UNDER THE COMPASSING CLAUSE, IS NOT SUFFICIENT FOR THE LEVYING-OF-WAR
CLAUSE.  ID., 130. 

FOSTER'S VIEW OF THE OVERT ACT DOES NOT SEEM MATERIALLY DIFFERENT
FROM HALE'S.  (A REPORT OF SOME PROCEEDINGS ON THE COMMISSION FOR THE
TRIAL OF THE REBELS IN THE YEAR 1746 IN THE COUNTY OF SURRY; AND OF
OTHER CROWN CASES, 2D ED. 1791.)  "OVERT ACTS UNDOUBTEDLY DO DISCOVER
THE MAN'S INTENTIONS; BUT, I CONCEIVE, THEY ARE NOT TO BE CONSIDERED
MERELY AS EVIDENCE, BUT AS THE MEANS MADE USE OF TO EFFECTUATE THE
PURPOSES OF THE HEART  ...  THOUGH IN THE CASE OF THE KING OVERTACTS OF
LESS MALIGNITY, AND HAVING A MORE REMOTE TENDENCY TO HIS DESTRUCTION,
ARE, WITH GREAT PROPRIETY, DEEMED TREASONABLE; YET STILL THEY ARE
CONSIDERED AS MEANS TO AFFECTUATE, NOT BARELY AS EVIDENCE OF THE
TREASONABLE PURPOSE."  FOSTER ALSO REPEATS THE ASSERTION THAT THE MERE
MEETING OF PERSONS WITH INTENT TO PLAN THE KING'S DEATH IS A SUFFICIENT
OVERT ACT.  ID., 195.  HOWEVER, HIS DISCUSSION, TOO, IS CONFINED TO THE
TREASON OF COMPASSING, AND HE SAYS LITTLE THAT IS HELPFUL ABOUT LEVYING
WAR AND ADHERING. 

FN26  THESE ARE:  TRIAL OF SIR NICHOLAS THROCKMORTON, 1 HOW.  ST. TR.
869(1 MARY, 1554); TRIAL OF SIR RICHARD GRAHME (LORD PRESTON'S CASE),
12 HOW.  ST. TR. 645(2 WILLIAM & MARY, 1691); TRIAL OF SIR JOHN FREIND,
13 HOW.  ST. TR. 1, 4, 11(8 WILLIAM III, 1696); TRIAL OF SIR WILLIAM
PARKYNS, 13 HOW.  ST. TR. 63, 67(8 WILLIAM III, 1696); TRIAL OF PETER
COOK, 13 HOW.  ST. TR. 311, 346(8 WILLIAM III, 1696); TRIAL OF CAPTAIN
VAUGHAN, 13 HOW.  ST. TR. 485(8 WILLIAM III, 1696); TRIAL OF WILLIAM
GREGG, 14 HOW.  ST. TR. 1371(6 ANNE, 1708); TRIAL OF JAMES BRADSHAW, 18
HOW.  ST. TR. 415(20 GEORGE II, 1746); TRIAL OF DR. HENSEY, 19 HOW. 
ST. TR. 1341(32 GEORGE II, 1758); TRIAL OF FRANCIS DE LA MOTTE, 21
HOW.  ST. TR. 687(21 GEORGE III, 1781); AND THE TRIAL OF DAVID TYRIE,
21 HOW.  ST. TR. 815(22 GEORGE III, 1782). 

FN27  PHILIP GUEDALLA CHARACTERIZES THE FIGURES OF THE AMERICAN
REVOLUTION AS THEY OCCUR IN BRITISH LEGEND:  "THERE THEY ARE ODDLY
SHRUNKEN; THEY DWINDLE INTO A PROVINCIAL PETTINESS; AND THEIR VOICES
MONOTONOUSLY INTONE THE DREARY FORMULA OF SEDITION."  FATHERS OF THE
REVOLUTION, P. 8. 

FN28  MR. JEFFERSON HAD REFERRED TO THE STATUTE OF EDWARD III AS
"DONE TO TAKE OUT OF THE HANDS OF TYRANNICAL KINGS, AND OF WEAK AND
WICKED MINISTERS, THAT DEADLY WEAPON, WHICH CONSTRUCTIVE TREASON HAD
FURNISHED THEM WITH, AND WHICH HAD DRAWN THE BLOOD OF THE BEST AND
HONESTEST MEN IN THE KINGDOM."  1 WRITINGS OF THOMAS JEFFERSON (LIBRARY
ED. 1903) 215. 

LATER, AS SECRETARY OF STATE, HE WROTE:  "TREASON  ...  WHEN REAL,
MERITS THE HIGHEST PUNISHMENT.  BUT MOST CODES EXTEND THEIR DEFINITIONS
OF TREASON TO ACTS NOT REALLY AGAINST ONE'S COUNTRY.  THEY DO NOT
DISTINGUISH BETWEEN ACTS AGAINST THE GOVERNMENT, AND ACTS AGAINST THE
OPPRESSIONS OF THE GOVERNMENT; THE LATTER ARE VIRTUES; YET THEY HAVE
FURNISHED MORE VICTIMS TO THE EXECUTIONER THAN THE FORMER; BECAUSE REAL
TREASONS ARE RARE; OPPRESSIONS FREQUENT.  THE UNSUCCESSFUL STRUGGLERS
AGAINST TYRANNY, HAVE BEEN THE CHIEF MARTYRS OF TREASON LAWS IN ALL
COUNTRIES."  8 JEFFERSON'S WRITINGS 332.  COMPARE 7TH ANNUAL MESSAGE,
1807, 3 JEFFERSON'S WRITINGS 451, 452. 

FN29  2 FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, 136. 

FN30  ART. VII, SEC. 2, OF DRAFT REPORTED AUGUST 6, 1787.  2 FARRAND
182. 

FN31  THE DEBATES ARE AT 2 FARRAND 345-50. 

FN32  JAMES WILSON WAS NOT UNLIKELY ONE OF THE AUTHORS OF THE TREASON
CLAUSE, AS A MEMBER OF THE COMMITTEE ON DETAIL.  HE HAD PARTICIPATED IN
THE PENNSYLVANIA TREASON TRIALS IN 1778 AS ONE OF THE DEFENSE COUNSEL
(RESPUBLICA V. MALIN, 1 DALL.  33(PA. O. & T.), RESPUBLICA V. CARLISLE,
ID. 35, RESPUBLICA V. ROBERTS, ID. 39).  IN THE PENNSYLVANIA RATIFYING
CONVENTION HE MADE DETAILED STATEMENTS IN PRAISE OF THE CLAUSE WITHOUT
ITS HAVING BEEN CHALLENGED.  2 ELLIOTT, DEBATES, 469, 487.  LATER, HE
DEVOTED A LECTURE TO THE CLAUSE IN HIS LAW COURSE DELIVERED AT THE
COLLEGE OF PHILADELPHIA IN 1790 AND 1791.  3 WORKS OF HON. JAMES WILSON
(BIRD WILSON, ED. 1804) 95-107. 

FN33  THE CONVENTION DID REJECT PROPOSALS THAT THE STATES HE DENIED
AUTHORITY TO DEFINE TREASON AGAINST THEMSELVES AND THAT PARTICIPATION
IN A CIVIL WAR BETWEEN A STATE AND THE UNITED STATES BE EXCEPTED.  SEE
2 FARRAND 345, 348-49; 3 ID. 223. 

FN34  SEE NOTE 16, SUPRA; SEE ALSO 9 HOLDSWORTH (2D ED. 1938) 203
211. 

FN35  L'ESPRIT DES LOIS, BOOK XII, CHAP. III. 

FN36 "...  TAKE WITH THEE ONE OR TWO MORE, THAT IN THE MOUTH OF TWO
OR THREE WITNESSES EVERY WORD MAY BE ESTABLISHED."  MATT.  XVIII, 16. 

FN37  "ONE WITNESS SHALL NOT RISE UP AGAINST A MAN FOR ANY INIQUITY,
OR FOR ANY SIN, IN ANY SIN THAT HE SINNETH:  AT THE MOUTH OF TWO
WITNESSES, OR AT THE MOUTH OF THREE WITNESSES, SHALL THE MATTER BE
ESTABLISHED."  DEUT.  XIX, 15. 

FN38  THE FOLLOWING IS A SUMMARY, TAKEN FROM THE APPENDIX TO THE
GOVERNMENT'S BRIEF, OF ALL CASES IN WHICH CONSTRUCTION OF THE TREASON
CLAUSE HAS BEEN INVOLVED, OMITTING GRAND JURY CHARGES AND CASES IN
WHICH INTERPRETATION OF THE CLAUSE WAS INCIDENTAL: 

WHISKEY REBELLION CASES:  UNITED STATES V. VIGOL, 28 FED. CAS. 376,
NO. 16,621(C.C.D. PA. 1795), UNITED STATES V. MITCHELL, 26 FED. CAS.
1277, NO. 15,788(C.C.D. PA. 1795)(CONSTRUCTIVE LEVYING OF WAR, BASED ON
FORCIBLE RESISTANCE TO EXECUTION OF A STATUTE; DEFENDANTS CONVICTED AND
LATER PARDONED).  HOUSE TAX CASE:  CASE OF FRIES, 9 FED. CAS. 826, 924,
NOS. 5126, 5127(C.C.D. PA. 1799, 1800)(CONSTRUCTIVE LEVYING OF WAR,
BASED ON FORCIBLE RESISTANCE TO EXECUTION OF A STATUTE; DEFENDANT
CONVICTED AND LATER PARDONED).  THE BURR CONSPIRACY:  EX PARTE BOLLMAN,
4 CRANCH 75(1807), UNITED STATES V. BURR, 25 FED. CAS. 2, 55, NOS.
14,692A, 14,693(C.C.D. VA. 1807)(CONSPIRACY TO LEVY WAR HELD NOT AN
OVERT ACT OF LEVYING WAR).  UNITED STATES V. LEE, 26 FED. CAS. 907, NO.
15,584(C.C.D.C. 1814)(SALE OF PROVISIONS A SUFFICIENT OVERT ACT;
ACQUITTAL).  UNITED STATES V. HODGES, 26 FED. CAS. 332, NO.
15,374(C.C.D. MD. 1815)(OBTAINING RELEASE OF PRISONERS TO THE ENEMY IS
ADHERING TO THE ENEMY, THE ACT SHOWING THE INTENT; ACQUITTAL).  UNITED
STATES V. HOXIE, 26 FED. CAS. 397, NO. 15,407(C.C.D. VT. 1808)(ATTACK
OF SMUGGLERS ON TROOPS ENFORCING EMBARGO IS RIOT AND NOT LEVYING OF
WAR).  UNITED STATES V. PRYOR, 27 FED. CAS. 628, NO. 16,096(C.C.D. PA.
1814)(PROCEEDING UNDER FLAG OF TRUCE WITH ENEMY DETACHMENT TO HELP BUY
PROVISIONS IS TOO REMOTE AN ACT TO ESTABLISH ADHERING TO THE ENEMY). 
UNITED STATES V. HANWAY, 26 FED. CAS. 105, NO. 15,299(C.C.E.D. PA.
1851)(FORCIBLE RESISTANCE TO EXECUTION OF FUGITIVE SLAVE LAW NO LEVYING
OF WAR).  UNITED STATES V. GREINER, 26 FED. CAS. 36, NO. 15,262(E.D.
PA. 1861)(PARTICIPATION AS MEMBER OF STATE MILITIA COMPANY IN SEIZURE
OF A FEDERAL FORT IS A LEVYING OF WAR).  UNITED STATES V. GREATHOUSE,
26 FED. CAS. 18, NO. 15,254(C.C.N.D. CAL. 1863)(FITTING OUT AND SAILING
A PRIVATEER IS A LE      OF WAR; DEFENDANTS CONVICTED, LATER
PARDONED).  CASES OF CONFISCATION OF PROPERTY OR REFUSAL TO ENFORCE
OBLIGATIONS GIVEN IN CONNECTION WITH SALE OF PROVISIONS TO THE
CONFEDERACY:  HANAUER V. DOANE, 12 WALL.  342(1871); CARLISLE V. UNITED
STATES, 16 WALL.  147(1873); SPROTT V. UNITED STATES, 20 WALL. 
459(1874); UNITED STATES V. ATHENS ARMORY, 24 FED. CAS. 878, NO.
14,473(N.D. GA. 1868)(MIXED MOTIVE, INVOLVING COMMERCIAL PROFIT, DOES
NOT BAR FINDING OF GIVING AID AND COMFORT TO THE ENEMY).  UNITED STATES
V. CATHCART AND UNITED STATES V. PARMENTER, 25 FED. CAS. 344, NO.
14,756(C.C.S.D. OHIO, 1864).  CHENOWETH'S CASE (UNREPORTED:  SEE EX
PARTE VALLANDIGHAM, 28 FED. CAS. 874, NO. 16,816, AT 888(S.D. OHIO,
1863))(INDICTMENT BAD FOR ALLEGING AIDING AND ABETTING REBELS, INSTEAD
OF DIRECTLY CHARGING LEVYING OF WAR).  CASE OF JEFFERSON DAVIS, 7 FED.
CAS. 63, NO. 3621A (C.C.D. VA. 1867-71)(ARGUMENT THAT REBELS WHOSE
GOVERNMENT ACHIEVED STATUS OF A RECOGNIZED BELLIGERENT COULD NOT BE
HELD FOR TREASON; DAVIS WAS NOT TRIED ON THE INDICTMENT); SEE 2 WARREN,
SUPREME COURT IN UNITED STATES HISTORY (1934 ED.)  485-87; WATSON,
TRIAL OF JEFFERSON DAVIS (1915) 25 YALE L.J. 669.  PHILIPPINE
INSURRECTIONS:  UNITED STATES V. MAGTIBAY, 2 PHIL.  703(1903), UNITED
STATES V. DE LOS REYES, 3 PHIL.  349(1904)(MERE POSSESSION OF REBEL
COMMISSIONS INSUFFICIENT OVERT ACTS; STRICT ENFORCEMENT OF TWO-WITNESS
REQUIREMENT; CONVICTIONS REVERSED); UNITED STATES V. LAGNASON, 3 PHIL. 
472(1904)(ARMED EFFORT TO OVERTHROW THE GOVERNMENT IS LEVYING WAR). 
UNITED STATES V. FRICKE, 259 F. 673(S.D.N.Y. 1919)(ACTS "INDIFFERENT"
ON THEIR FACE HELD SUFFICIENT OVERT ACTS).  UNITED STATES V. ROBINSON,
259 F. 685(S.D.N.Y. 1919)(DICTUM, ACTS HARMLESS ON THEIR FACE ARE
INSUFFICIENT OVERT ACTS).  UNITED STATES V. WERNER, 247 F. 708(E.D. PA.
1918), AFF'D, 251 U.S. 466(1919)(ACT INDIFFERENT ON ITS FACE MAY BE
SUFFICIENT OVERT ACT).  UNITED STATES V. HAUPT, 136 F.2D 661(C.C.A.7TH,
1943)(REVERSAL OF CONVICTION ON STRICT APPLICATION OF TWOWITNESS
REQUIREMENT AND OTHER GROUNDS; INFERENTIALLY APPROVES ACTS HARMLESS ON
THEIR FACE AS OVERT ACTS).  STEPHAN V. UNITED STATES, 133 F.2D
87(C.C.A.6TH, 1943)(ACTS HARMLESS ON THEIR FACE MAY BE SUFFICIENT OVERT
ACTS; CONVICTION AFFIRMED BUT SENTENCE COMMUTED).  UNITED STATES V.
CRAMER, 137 F.2D 888(C.C.A.2D, 1943). 

FN39  IN 1942 THE OFFICE OF WAR INFORMATION SUGGESTED TO MR. STEPHEN
VINCENT BENET A SHORT INTERPRETATIVE HISTORY OF THE UNITED STATES FOR
TRANSLATION INTO MANY LANGUAGES.  IN IT HE SAYS: 

"IT HAD BEEN A REAL REVOLUTION - A LONG AND DIFFICULT TRAVAIL, FULL
OF HARDSHIP, STRUGGLE, BITTERNESS, AND THE OVERTURNING OF OLD HABITS
AND CUSTOMS.  BUT IT DID NOT EAT ITS CHILDREN AND IT HAD NO AFTERMATH
OF VENGEANCE.  THE HESSIANS WHO STAYED IN THE COUNTRY WERE NOT HUNTED
DOWN AND ANNIHILATED.  SOME LOYALISTS WHO RETURNED WERE HARSHLY TREATED
- OTHERS CAME BACK AND SETTLED DOWN PEACEFULLY AS CITIZENS OF THE NEW
STATE.  THERE WAS NEITHER BLOOD BATH NOR PURGE.  THERE WAS BITTER
POLITICAL DISPUTE - BUT NO SMALL GROUP OF MEN PLOTTED IN SECRET TO
OVERTHROW THE GOVERNMENT BY FORCE OF ARMS.  THERE WERE A COUPLE OF
MINOR AND LOCAL REVOLTS, BASED ON GENUINE GRIEVANCES - SHAYS' REBELLION
IN 1786 - THE WHISKY REBELLION IN 1794.  BOTH COLLAPSED WHEN THE
GOVERNMENT SHOWED ITSELF ABLE TO PUT DOWN REBELLION - AND NOBODY WAS
HANGED FOR EITHER OF THEM.  SHAYS AND HIS TEMPORARY REBELS RECEIVED A
GENERAL AMNESTY - THE LEADERS OF THE WHISKY REBELLION WERE CONVICTED OF
TREASON AND THEN PARDONED BY THE PRESIDENT."  BENET, AMERICA, PP. 49
50. 

SPEAKING OF THE WAR BETWEEN THE STATES HE SAYS: 

"AGAIN, THERE WAS NO BLOOD PURGE.  THERE WERE NO MASS EXECUTIONS.  NO
HEADS ROLLED. 

"THE HANDFUL OF FANATICS WHO HAD PLOTTED THE ASSASSINATION OF LINCOLN
AND OTHER GOVERNMENT LEADERS WERE EXECUTED.  HIS ACTUAL MURDERER WAS
TRACKED DOWN AND SHOT.  THE HALF-CRAZY OFFICER WHO COMMANDED A
NOTORIOUS SOUTHERN PRISON CAMP WAS HANGED.  THE FORMER PRESIDENT OF THE
CONFEDERACY, JEFFERSON DAVIS, WAS KEPT FOR A WHILE IN PRISON WITH
CERTAIN OF HIS ASSOCIATES AND THEN RELEASED.  BUT THAT WAS ALL. 

"NOT ONE OF THE GREAT SOUTHERN GENERALS OR STATESMEN, LEE, JOHNSON,
STEPHENS, HAMPTON, LONGSTREET - WAS EVEN TRIED FOR TREASON."  ID., 78. 

FN40  APART, OF COURSE, FROM LEVYING WAR, WHICH IS NOT CHARGED IN
THIS CASE AND IS NOT INVOLVED IN THE CONTROVERSY. 

FN41  HALLAM IN HIS CONSTITUTIONAL HISTORY OF ENGLAND (1827) SAID:
"NOTHING HAD BROUGHT SO MUCH DISGRACE ON THE COUNCILS OF GOVERNMENT,
AND ON THE ADMINISTRATION OF JUSTICE, NOTHING MORE FORCIBLY SPOKEN THE
NECESSITY OF A GREAT CHANGE, THAN THE PROSECUTIONS FOR TREASON DURING
THE LATTER YEARS OF CHARLES II, AND IN TRUTH DURING THE WHOLE COURSE OF
OUR LEGAL HISTORY.  THE STATUTES OF EDWARD III AND EDWARD VI, ALMOST
SET ASIDE BY SOPHISTICAL CONSTRUCTIONS, REQUIRED THE CORROBORATION OF
SOME MORE EXPLICIT LAW; AND SOME PECULIAR SECURITIES WERE DEMANDED FOR
INNOCENCE AGAINST THAT CONSPIRACY OF THE COURT WITH THE PROSECUTOR,
WHICH IS SO MUCH TO BE DREADED IN ALL TRIALS FOR POLITICAL CRIMES."  V.
2, P. 509. 

CONTINUING, AFTER COMMENT ON PARTICULAR CASES, HE SAID:  "IN THE VAST
MASS OF CIRCUMSTANTIAL TESTIMONY WHICH OUR MODERN TRIALS FOR HIGH
TREASON DISPLAY, IT IS SOMETIMES DIFFICULT TO DISCERN, WHETHER THE
GREAT PRINCIPLE OF OUR LAW, REQUIRING TWO WITNESSES TO OVERT ACTS, HAS
BEEN ADHERED TO; FOR CERTAINLY IT IS NOT ADHERED TO, UNLESS SUCH
WITNESSES DEPOSE TO ACTS OF THE PRISONER, FROM WHICH AN INFERENCE OF
HIS GUILT IS IMMEDIATELY DEDUCIBLE."  V. 2, P. 516. 

FN42  THERE ARE, OF COURSE, RARE CASES WHERE ADHERENCE MIGHT BE
PROVED BY AN OVERT ACT SUCH AS SUBSCRIBING AN OATH OF ALLEGIANCE OR
ACCEPTING PAY FROM AN ENEMY.  THESE MIGHT SUPPLEMENT PROOF OF OTHER
ACTS OF AID AND COMFORT, BUT NO SUCH OVERT ACTS OF ADHERENCE ARE
INVOLVED IN THIS CASE. 

FN43  OF COURSE, THE CONSTITUTION DOES NOT REQUIRE A TREASON TO BE
PROVED BY ANY SINGLE OVERT ACT.  IT MAY BE GROUNDED UPON ANY NUMBER,
EACH TO BE SUPPORTED BY THE TESTIMONY OF TWO WITNESSES.  WE SPEAK IN
THE SINGULAR BUT WHAT WE SAY APPLIES AS WELL TO A SERIES OF ACTS OR TO
THE SUM OF MANY ACTS. 

FN44  WE ARE NOT CONCERNED HERE WITH ANY QUESTION AS TO WHETHER THERE
MAY BE AN OFFENSE OF ATTEMPTED TREASON. 

FN45  THE VERDICT IN THIS CASE WAS A GENERAL ONE OF GUILTY, WITHOUT
SPECIAL FINDINGS AS TO THE ACTS ON WHICH IT RESTS.  SINCE IT IS NOT
POSSIBLE TO IDENTIFY THE GROUNDS ON WHICH CRAMER WAS CONVICTED, THE
VERDICT MUST BE SET ASIDE IF ANY OF THE SEPARABLE ACTS SUBMITTED WAS
INSUFFICIENT.  STROMBERG V. CALIFORNIA, 283 U.S. 359, 368; WILLIAMS V.
NORTH CAROLINA, 317 U.S. 287, 292.  THE TENTH ACT CHARGED, THE THIRD
SUBMITTED, WAS BASED ON FIVE FALSEHOODS TOLD BY CRAMER AFTER HIS ARREST
TO AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION, ADMITTEDLY FOR THE
PURPOSE OF SHIELDING WERNER THIEL.  AFTER SOME TIME HE RECANTED THE
FALSEHOODS AND TOLD THE TRUTH.  THIEL HAD ALREADY BEEN TAKEN INTO
CUSTODY WHEN THE INTERVIEWS OCCURRED.  THE PRISONER CONTENDS THAT LYING
TO HIS JAILER DOES NOT CONSTITUTE TREASON, THAT IN THE WHOLE HISTORY OF
TREASON NO PRECEDENT CAN BE OR IS CITED FOR HOLDING A FALSE STATEMENT
WHILE UNDER INTERROGATION AFTER IMPRISONMENT IS TREASON, THAT IN ANY
EVENT IT AMOUNTED TO NO MORE THAN AN ATTEMPT WHICH WAS NOT CONSUMMATED,
THAT THERE WAS NO RIGHT TO INTERROGATE CRAMER UNDER THE CIRCUMSTANCES,
AND THAT ADMISSIONS MADE OUT OF COURT ARE RENDERED INADMISSIBLE AS
PROOF OF OVERT ACTS IN VIEW OF THE REQUIREMENT THAT THE ACT BE PROVED
BY TWO WITNESSES OR BY "CONFESSION IN OPEN COURT."  THE USE OF THIS
EVIDENCE AS AN OVERT ACT OF TREASON IS COMPLICATED, AND WE INTIMATE NO
VIEWS UPON IT IN VIEW OF REVERSAL ON OTHER GROUNDS.  WERE WE TO AFFIRM
WE SHOULD HAVE FIRST TO RESOLVE THESE QUESTIONS AGAINST THE PRISONER. 

FN46  THE TESTIMONY OF NORMA KOPP WAS PROBABLY THE MOST DAMAGING TO
THE PRISONER.  SHE WAS A GERMAN ALIEN WHO HAD BEEN IN THE UNITED STATES
SINCE 1928, BUT HAD NEVER BECOME A CITIZEN.  SHE HAD LONG AND
INTIMATELY KNOWN BOTH CRAMER AND THIEL AND BECAME ENGAGED TO MARRY
THIEL FOUR DAYS BEFORE HE LEFT FOR GERMANY.  SHE KNEW HIM TO BE A
NAZI.  SHE RECEIVED AT WESTPORT, CONN., WHERE SHE WAS WORKING AS A
LAUNDRY AND KITCHEN MAID, A NOTE FROM CRAMER, ASKING HER TO COME TO NEW
YORK FOR AN UNDISCLOSED REASON.  SHE CAME AND CRAMER THEN, SHE SAYS,
TOLD HER THAT THIEL WAS BACK, THAT HE CAME WITH OTHERS, THAT SIX OF
THEM LANDED FROM A SUBMARINE IN A RUBBER BOAT IN FLORIDA, THAT THEY
BROUGHT MUCH MONEY "FROM GERMANY FROM THE GERMAN GOVERNMENT," THAT
CRAMER WAS KEEPING IT FOR THIEL IN HIS SAFETY DEPOSIT BOX, THAT THESE
MEN GOT INSTRUCTIONS FROM A "SITZ" IN THE BRONX AS TO WHERE TO GO, BUT
CRAMER SAID HE DID NOT KNOW WHAT HE MEANT BY "SITZ."  CRAMER SAID HE
EXPECTED THIEL THAT EVENING AT HIS APARTMENT, BUT THIEL DID NOT COME. 
CRAMER FAILED TO BRING ABOUT HER MEETING WITH THIEL, AS HE HAD PROMISED
HER.  SHE WAS AT KOLPING HOUSE WHEN CRAMER WAS TAKEN INTO CUSTODY.  THE
FOLLOWING DAY PICTURES OF THE SABOTEURS AND THE STORY OF THEIR LANDING
AND ARREST WAS IN THE NEWSPAPERS.  SHE WAS TAKEN INTO CUSTODY AND
QUESTIONED BY THE FEDERAL BUREAU OF INVESTIGATION. 

FN47  CRAMER LEFT A NOTE FOR "WILLIAM THOMAS," THE NAME UNDER WHICH
THIEL WAS GOING, AT THE COMMODORE HOTEL, WHERE HE WAS STAYING, SAYING
THAT MISS KOPP HAD COME AND ASKING THIEL TO MEET THEM AT THOMPSON'S
CAFETERIA AT 4:00 THAT AFTERNOON OR CALL THEM AT 7:00 THAT EVENING AT
KOLPING HOUSE.  THIEL HAD BEEN ARRESTED AND DID NOT KEEP THE RENDEZVOUS
NOR MAKE THE CALL.  ABOUT 10:50 P.M. JUNE 27, CRAMER WAS TAKEN INTO
CUSTODY AT KOLPING HOUSE AND TAKEN TO THE BUREAU'S HEADQUARTERS IN NEW
YORK.  HE TOLD THE AGENTS THAT THE MAN HE HAD BEEN WITH AT THOMPSON'S
CAFETERIA WAS WILLIAM THOMAS, THAT THOMAS HAD WORKED IN A FACTORY ON
THE WEST COAST SINCE MARCH OF 1941 AND HAD NOT BEEN OUT OF THE UNITED
STATES.  WHEN ASKED IF THE TRUE NAME OF WILLIAM THOMAS WAS NOT WERNER
THIEL, HE REPLIED THAT IT WAS, AND THAT THIEL WAS USING AN ASSUMED NAME
BECAUSE OF DIFFICULTIES WITH HIS DRAFT BOARD.  HE STATED THAT THE MONEY
BELT WHICH THIEL HAD GIVEN HIM CONTAINED ONLY $200, WHICH THIEL OWED
HIM, AND THAT THE $3,500 IN THE SAFETY DEPOSIT BOX BELONGED TO HIM AND
HAD BEEN OBTAINED FROM THE SALE OF SECURITIES.  THE GRAVITY OF THE
OFFENSE WITH WHICH HE MIGHT BE CONFRONTED WAS INTIMATED TO CRAMER, AND
HE ASKED IF HE MIGHT SPEAK WITH AGENT OSTHOLTHOFF ALONE.  TO HIM HE
RECANTED HIS PREVIOUS FALSE STATEMENTS AND ADMITTED THAT HE KNEW THIEL
HAD COME FROM GERMANY, PROBABLY ON A MISSION FOR THE GERMAN GOVERNMENT,
WHICH HE THOUGHT WAS "TO STIR UP UNREST AMONG THE PEOPLE AND PROBABLY
SPREAD PROPAGANDA."  HE REPEATED THIS IN THE PRESENCE OF OTHER AGENTS
AND STATED THAT HE HAD LIED IN ORDER TO PROTECT THIEL.  CRAMER
AUTHORIZED THE AGENTS TO SEARCH HIS ROOM AND TO OPEN HIS SAFE-DEPOSIT
BOX AT THE CORN EXCHANGE BANK AND REMOVE THE CONTENTS THEREOF. 

FN48  AS SUMMARIZED IN THE OPINION OF THE CIRCUIT COURT OF APPEALS,
THESE ARE:  "WRITING THIEL IN GERMANY, NOVEMBER 25, 1941, APPELLANT
SAID THAT 'DEFIANCE, BOLDNESS, WILL, AND SHARP WEAPONS WILL DECIDE THE
WAR, AND THE GERMANY ARMY AND THE GERMAN PEOPLE ARE NOT LACKING IN
THESE,' THAT HE WAS 'VERY DISCONTENT' AND SAT HERE 'IN PITIABLE
COMFORT,' AND THAT HE HAD REFUSED A JOB IN DETROIT AT $100 PER WEEK
BECAUSE 'I DO NOT WANT TO SOIL MY HANDS WITH WAR WORK.'  TO HIS FAMILY
IN GERMANY HE WROTE DECEMBER 3, 1941, OF 'THE GIGANTIC SACRIFICES WHICH
THE GLORIOUS, DISCIPLINED GERMAN ARMY IS MAKING FROM DAY TO DAY FOR THE
HOMELAND,' THAT 'EVERY DAY HERE I HEAR THE SHRIEKS OF HATRED AND THE
CLAMOR FOR ANNIHILATION FROM THE HOSTILE FOREIGNERS,' AND THAT A LOST
WAR 'MEANS TODAY A COMPLETE EXTIRPATION OF THE GERMAN NATION.'  TO A
FRIEND IN CHICAGO HE WROTE APRIL 21, 1942, OBJECTING TO CONSCRIPTION
'AFTER ONE HAS SPENT ALMOST HALF A LIFETIME HERE IN THE STATES,' AND
SAYING 'PERSONALLY I SHOULD NOT CARE AT ALL TO BE MISUSED BY THE
AMERICAN ARMY AS A WORLD CONQUEROR.'  ALL THE LETTERS WERE WRITTEN IN
GERMAN." 

FN49  ON THE GOVERNMENT'S CASE A WITNESS TESTIFIED THAT HE WENT TO
CRAMER'S APARTMENT, TOLD HIM THAT HE WAS A REPRESENTATIVE OF THE UNITED
STATES GOVERNMENT ON A PLEDGE DRIVE AND ASKED HIM IF HE WOULD LIKE TO
SIGN A PLEDGE FOR A BOND.  CRAMER SAID HE WAS NOT INTERESTED AND, IN
REPLY TO THE QUESTION WHETHER HE WOULD SIGN UP FOR A STAMP, HE SAID HE
WAS NOT EVEN INTERESTED IN THE PURCHASE OF A 10-CENT STAMP.  HE THEN
CLOSED THE DOOR.  THE WITNESS RANG AGAIN AND CRAMER OPENED THE DOOR
AGAIN AND THEN CLOSED IT. 

NORMA KOPP TESTIFIED THAT CRAMER TOLD HER THAT THE "MINUTE MAN"
CALLED AT HIS DOOR "AND HE GOT KIND OF FRESH AND HE CLOSED THE DOOR AT
HIM."  MISS KOPP'S TESTIMONY WAS OBJECTED TO AND WAS OFFERED AS
"SHOWING THE GENERAL MOTIVE AND DISPOSITION, IN SO FAR AS LOYALTY TO
THE COUNTRY IS CONCERNED, OF THIS DEFENDANT," AND AS PROBATIVE ON THE
ISSUE OF INTENT.  THE COURT RECEIVED IT ON THE THEORY THAT INCIDENTS OF
THAT SORT MIGHT CORROBORATE OR THE JURY MIGHT FIND IT CORROBORATED
CERTAIN OTHER TESTIMONY OFFERED BY THE GOVERNMENT INDICATING A MOTIVE
OR INTENT. 

FN50  THE DEFENDANT, HAVING TESTIFIED IN HIS OWN BEHALF, WAS UNDER
CROSS-EXAMINATION.  HE WAS ASKED:  "Q.  NOW, SIR, ISN'T IT THE FACT
THAT YOU DID WRITE TO GERMANY IN THE YEAR 1941 SEVERAL LETTERS IN WHICH
YOU DISCUSSED THE UNITED STATES IN AN UNFRIENDLY MANNER?  A. I DO NOT
KNOW UNFRIENDLY.  I WOULD SAY THAT I HAVE CRITICIZED A FEW PERSONS.  I
HAVE NEVER CRITICIZED THE UNITED STATES AS SUCH."  HE WAS THEN ASKED
WHETHER IN 1941 HE DID NOT RECEIVE LETTERS FROM HIS NEPHEW NORBERT AND
WHETHER IT WAS NOT THE FACT THAT CRAMER'S BROTHER, NORBERT'S FATHER,
"THROUGH NORBERT WARNED YOU THAT YOUR LETTERS DISCUSSED THE UNITED
STATES IN SUCH AN UNFRIENDLY FASHION THAT NORBERT'S FATHER FEARED THAT
YOU WOULD BE PUT ON THE BLACKLIST, BECAUSE ACCORDING TO HIM THE LETTERS
WENT THROUGH AN AMERICAN CENSORSHIP?"  OBJECTION WAS DULY MADE THAT THE
LETTERS REFERRED TO WERE FROM SOMEONE ELSE AND COULD NOT BIND THE
DEFENDANT.  THE OBJECTION WAS OVERRULED, AND THE WITNESS ANSWERED:
"WELL, I HAVE RECEIVED A LETTER FROM MY NEPHEW NORBERT WHICH MENTIONS
THAT, I ADMIT THAT."  A MOTION TO STRIKE THE ANSWER WAS DENIED, AND
EXCEPTIONS TO BOTH RULINGS WERE DULY TAKEN.    THE CIRCUIT COURT OF
APPEALS OBSERVED THAT, "OF COURSE, THESE EXPRESSIONS OF OPINION COULD
NOT PROPERLY BIND APPELLANT; AND THE OBJECTION MIGHT WISELY HAVE BEEN
SUSTAINED."  BUT IT CONCLUDED THAT THE RULING WAS NOT SUFFICIENTLY
PREJUDICIAL TO CALL FOR REVERSAL. 

WHILE DEFENDANT WAS UNDER CROSS-EXAMINATION, HE WAS ASKED, "BY THE
WAY, MR. WITNESS, YOU HAVE TESTIFIED AT LENGTH HERE ABOUT YOUR VARIOUS
STUDIES AND YOUR VARIOUS OCCUPATIONS AND INTERESTS.  WERE YOU EVER
INTERESTED IN LAW?  A. NO, SIR; I WAS NOT.  Q. ISN'T IT A FACT, SIR,
THAT AT ONE TIME YOU WERE PARTICULARLY INTERESTED IN THE LAW OF
TREASON?  A. NO, SIR; I HAVE NEVER BEEN INTERESTED IN THAT."  THE
DISTRICT ATTORNEY THEN OFFERED A COMPLETE TEXT OF THE CONSTITUTION OF
THE UNITED STATES AS PRINTED IN THE NEW YORK TIMES IN 1937.  IT HAD
BEEN FOUND IN CRAMER'S ROOM AND ON IT WERE MARKS WHICH HE ADMITTED
MAKING.  ONE OF THE MARKS WAS OPPOSITE THE PARAGRAPH WHICH DEFINES
TREASON.  THE DISTRICT ATTORNEY OFFERED IT FOR IMPEACHMENT AND ALSO
CONTENDED IT TO BE OF PROBATIVE FORCE TO SHOW "THAT THIS WITNESS HAD IN
MIND AT THE TIME THESE EVENTS WHICH ARE THE SUBJECT OF THE INDICTMENT
HERE OCCURRED, WHAT THE LAW OF TREASON WAS."  AGAINST OBJECTION THE
COURT ADMITTED IT AS MATERIAL AND RELEVANT AND DECLINED TO LIMIT THE
GROUNDS ON WHICH IT WAS RECEIVED. 

IT APPEARS WITHOUT DISPUTE THAT THE MARKS ON THIS COPY OF THE
CONSTITUTION WERE MADE AT A TIME NOT DEFINITELY ESTABLISHED BUT CLEARLY
BEFORE THE UNITED STATES ENTERED THE WAR AND WHEN THE POLICY OF THE
GOVERNMENT WAS DECLARED TO BE ONE OF NEUTRALITY. 

THE TREASON PARAGRAPH OF THE CONSTITUTION WAS ONE OF SIX PROVISIONS
WHICH HE MARKED.  ANOTHER WAS THE PROVISION OF ARTICLE 1 OF SEC. 7,
THAT IF ANY BILL PASSED BY THE CONGRESS SHALL NOT BE RETURNED BY THE
PRESIDENT WITHIN TEN DAYS AFTER HAVING BEEN PRESENTED TO HIM, THE SAME
SHALL BE A LAW.  ANOTHER, THE PROVISION OF ARTICLE 1, SEC. 8, THAT
CONGRESS SHALL HAVE THE POWER TO DECLARE WAR, GRANT LETTERS OF MARQUE
AND REPRISAL AND MAKE RULES CONCERNING CAPTURES ON LAND AND WATER.  A
THIRD WAS ARTICLE 1, SEC. 9, WHICH PROVIDES THAT NO BILL OF ATTAINDER
OR EX POST FACTO LAW SHALL BE PASSED.  A FOURTH WAS THAT PROVISION OF
ARTICLE 1, SEC. 9, THAT NO TITLE OF NOBILITY SHALL BE GRANTED BY THE
UNITED STATES.  ANOTHER WAS THE PORTION OF ARTICLE 2, SEC. 1, WHICH
SETS FORTH THE PRESIDENT'S OATH. 

THE PETITIONER WAS NATURALIZED IN 1936 AND, SO FAR AS APPEARS, CAME
INTO POSSESSION OF THE CONSTITUTION IN 1937. 

FN51  2 FARRAND 347. 

FN52  E.G., HARTZEL V. UNITED STATES, 322 U.S. 680. 

FN53  CONGRESS HAS PROHIBITED OBTAINING DEFENSE INFORMATION IN
CERTAIN WAYS, 50 U.S.C. SEC. 31; CERTAIN DISCLOSURES OF INFORMATION, 50
U.S.C. SEC. 32; CERTAIN SEDITIOUS AND DISLOYAL ACTS IN WARTIME, 50
U.S.C. SEC. 33; AND HAS ENACTED SUCH STATUTES AS THE TRADING WITH THE
ENEMY ACT, 50 U.S.C. APP. SEC. 3. 

FN54  THE GOVERNMENT'S APPENDIX INCLUDES SUCH EXAMPLES AS THE
FOLLOWING: 

DANISH PENAL CODE.  - "SEC.  105.  ONE WHO COMMITS AN ACT BY VIRTUE
OF WHICH A FOREIGN SERVICE OF MILITARY INTELLIGENCE IS SET UP, OR WHO
ASSISTS DIRECTLY OR INDIRECTLY IN ITS FUNCTIONING ON THE TERRITORY OF
THE STATE OF DENMARK, SHALL BE PUNISHED BY IMPRISONMENT UP TO TWO YEARS
AND IN CASES OF EXTENUATING CIRCUMSTANCES BY DETENTION." 

POLISH CODE.  - "ART.  100.  SEC. 1.  WHOEVER IN TIME OF WAR ACTS IN
FAVOR OF THE ENEMY OR TO THE DAMAGE OF THE POLISH ARMED FORCES OR
ALLIED FORCES SHALL BE PUNISHED BY IMPRISONMENT NOT UNDER TEN YEARS OR
FOR LIFE. 

"ART. 100.  SEC. 2.  IF THE OFFENDER UNINTENTIONALLY ACTED, HE SHALL
BE PUNISHED BY IMPRISONMENT NOT TO EXCEED THREE YEARS OR BY DETENTION
NOT TO EXCEED THREE YEARS." 

FRENCH CODE OF 1939.  - "ART.  103.  WHOEVER, KNOWING ABOUT THE PLANS
OF AN ACT OF TREASON OR ESPIONAGE, DOES NOT REPORT THEM TO THE
MILITARY, ADMINISTRATIVE, OR JUDICIAL AUTHORITIES AS SOON AS HE
ACQUIRED KNOWLEDGE SHALL BE PUNISHED BY PENALTIES PROVIDED BY ART. 83
FOR THE ATTACK ON THE EXTERIOR SAFETY OF THE STATE." 

THE FRENCH CODE (HARBORING) PROVIDES IN ARTICLE 85 THAT EVERY
FRENCHMAN AND EVERY FOREIGNER SHALL BE PUNISHED AS AN ACCOMPLICE OR FOR
HARBORING: 

"(1)  WHO, KNOWING THE INTENTIONS OF THE PERPETRATORS OF MAJOR CRIMES
AND MINOR CRIMES AGAINST THE EXTERIOR SAFETY OF THE STATE, FURNISHES
THEM SUBSIDIES, MEANS OF EXISTENCE, LODGING, PLACE OF ASYLUM OR MEETING
PLACE. 

"(2)  WHO, KNOWINGLY CARRIES THE CORRESPONDENCE OF THE PERPETRATORS
OF A MAJOR OR MINOR CRIME OR KNOWINGLY FACILITATES THEM IN ANY MANNER
WHATSOEVER IN FINDING, HARBORING, TRANSPORTING, OR TRANSMITTING, THE
OBJECTS OF A MAJOR OR MINOR CRIME; 

"(3)  WHO HARBORS KNOWINGLY THE OBJECTS OR INSTRUMENTS WHICH SERVED
OR SHOULD SERVE FOR THE COMMISSION OF THE CRIME OR OFFENSE OR MATERIAL
OBJECTS OR DOCUMENTS OBTAINED THROUGH A CRIME OR OFFENSE." 

FN55  2 FARRAND 348. 

FN56  SEE BROOKS, THE WORLD OF WASHINGTON IRVING, 73 N. 

MR. JUSTICE DOUGLAS, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK
AND MR. JUSTICE REED CONCUR, DISSENTING. 

THE OPINION OF THE COURT IS WRITTEN ON A HYPOTHETICAL STATE OF FACTS,
NOT ON THE FACTS PRESENTED BY THE RECORD.  IT STATES A RULE OF LAW
BASED ON AN INTERPRETATION OF THE CONSTITUTION WHICH IS NOT ONLY
UNTENABLE BUT IS ALSO UNNECESSARY FOR THE DECISION.  IT DISREGARDS
FACTS ESSENTIAL TO A DETERMINATION OF THE QUESTION PRESENTED FOR
DECISION.  IT OVERLOOKS THE BASIC ISSUE ON WHICH OUR DISPOSITION OF THE
CASE MUST TURN.  IN ORDER TO REACH THAT ISSUE WE MUST HAVE A MORE EXACT
APPRECIATION OF THE FACTS THAN CAN BE GLEANED FROM THE OPINION OF THE
COURT. 

                          I 

CRAMER IS A NATURALIZED CITIZEN OF THE UNITED STATES, BORN IN
GERMANY.  HE SERVED IN THE GERMAN ARMY IN THE LAST WAR, COMING TO THIS
COUNTRY IN 1925.  IN 1929 HE MET THIEL WHO HAD COME TO THIS COUNTRY IN
1927 FROM A PLACE IN GERMANY NOT FAR FROM PETITIONER'S BIRTHPLACE.  THE
TWO BECAME CLOSE FRIENDS; THEY WERE INTIMATE ASSOCIATES DURING A TWELVE
YEAR PERIOD.  IN 1933 CRAMER FOUND WORK IN INDIANA.  THIEL JOINED HIM
THERE.  BOTH BECAME MEMBERS OF THE FRIENDS OF NEW GERMANY, PREDECESSOR
OF THE GERMAN-AMERICAN BUND.  CRAMER WAS AN OFFICER OF THE INDIANA
LOCAL.  HE RESIGNED IN 1935 BUT THIEL REMAINED A MEMBER AND WAS KNOWN
AS A ZEALOUS NAZI.  IN 1936 CRAMER VISITED GERMANY.  ON HIS RETURN HE
RECEIVED HIS FINAL CITIZENSHIP PAPERS.  HE AND THIEL RETURNED TO NEW
YORK IN 1937 AND LIVED EITHER TOGETHER OR IN CLOSE PROXIMITY FOR ABOUT
FOUR YEARS.  THIEL LEFT FOR GERMANY IN THE SPRING OF 1941, FEELING THAT
WAR BETWEEN THE UNITED STATES AND GERMANY WAS IMMINENT.  ACCORDING TO
CRAMER, THIEL WAS "UP TO HIS EARS" IN NAZI IDEOLOGY.  CRAMER
CORRESPONDED WITH THIEL IN GERMANY.  PRIOR TO OUR DECLARATION OF WAR,
HE WAS SYMPATHETIC WITH THE GERMAN CAUSE AND CRITICAL OF OUR ATTITUDE. 
THUS IN NOVEMBER, 1941, HE WROTE THIEL SAYING HE HAD DECLINED A JOB IN
DETROIT, "AS I DON'T WANT TO DIRTY MY FINGERS WITH WAR MATERIAL"; THAT
"WE SIT HERE IN PITIABLE COMFORT, WHEN WE SHOULD BE IN THE BATTLE - AS
NIETZSCHE SAYS - I WANT THE MAN, I WANT THE WOMAN, THE ONE FIT FOR WAR,
THE OTHER FIT FOR BEARING."  IN THE SPRING OF 1942 HE WROTE ANOTHER
FRIEND IN REFERENCE TO THE POSSIBILITY OF BEING DRAFTED:  "PERSONALLY I
SHOULD NOT CARE AT ALL TO BE MISUSED BY THE AMERICAN ARMY AS A WORLD
CONQUEROR."  CRAMER LISTENED TO SHORT-WAVE BROADCASTS OF LORD HAW-HAW
AND OTHER GERMAN PROPAGANDISTS.  HE KNEW THAT THE THEME OF GERMAN
PROPAGANDA WAS THAT ENGLAND AND THE UNITED STATES WERE FIGHTING A WAR
OF AGGRESSION AND SEEKING TO CONQUER THE WORLD. 

SO MUCH FOR THE BACKGROUND.  WHAT FOLLOWED IS A SEQUEL TO EX PARTE
QUIRIN, 317 U.S. 1. 

THIEL ENTERED THE GERMAN ARMY AND IN 1942 VOLUNTEERED WITH SEVEN
OTHER GERMAN SOLDIERS WHO HAD LIVED IN THE UNITED STATES FOR A SPECIAL
MISSION TO DESTROY THE AMERICAN ALUMINUM INDUSTRY.  THEY WERE BROUGHT
HERE BY GERMAN SUBMARINES IN TWO GROUPS.  KERLING WAS THE LEADER AND
THIEL A MEMBER OF ONE GROUP WHICH LANDED BY RUBBER BOAT NEAR
JACKSONVILLE, FLORIDA ON JUNE 17, 1942.  THEY BURIED THEIR EXPLOSIVES
AND PROCEEDED TO NEW YORK CITY, WHERE ON JUNE 21ST THEY REGISTERED AT
THE HOTEL COMMODORE UNDER THE ASSUMED NAMES OF EDWARD KELLY AND WILLIAM
THOMAS. 

THE NEXT MORNING A STRANGE VOICE CALLED CRAMER'S NAME FROM THE HALL
OF THE ROOMING HOUSE WHERE HE LIVED.  ON HIS FAILURE TO REPLY AN
UNSIGNED NOTE WAS SLIPPED UNDER HIS DOOR.  IT READ, "BE AT THE GRAND
CENTRAL STATION TONIGHT AT 8 O'CLOCK, THE UPPER PLATFORM NEAR THE
INFORMATION BOOTH, FRANZ FROM CHICAGO HAS COME INTO TOWN AND WANTS TO
SEE YOU; DON'T FAIL TO BE THERE."  CRAMER SAID HE KNEW NO FRANZ FROM
CHICAGO.  BUT NEVERTHELESS HE WAS ON HAND AT THE APPOINTED HOUR AND
PLACE.  THIEL SHORTLY APPEARED.  THEY WENT TO THE TWIN OAKS INN WHERE
THEY TALKED FOR TWO HOURS.  CRAMER ADMITTED THAT HE KNEW THIEL HAD COME
FROM GERMANY; AND OF COURSE, HE KNEW THAT AT THAT TIME MEN WERE NOT
FREELY ENTERING THIS COUNTRY FROM GERMANY.  HE ASKED THIEL, "SAY, HOW
HAVE YOU COME OVER, HAVE YOU COME BY SUBMARINE?"  THIEL LOOKED
STARTLED, SMILED, AND SAID, "SOME OTHER TIME I AM GOING TO TELL YOU ALL
ABOUT THIS."  THIEL TOLD HIM THAT HE HAD TAKEN THE ASSUMED NAME OF
WILLIAM THOMAS AND HAD A FORGED DRAFT CARD.  THIEL ADMONISHED HIM TO
REMEMBER THAT HE, THIEL, WAS "ANTI-NAZI"  - A STATEMENT CRAMER DOUBTED
BECAUSE HE KNEW THIEL WAS A MEMBER OF THE NAZI PARTY.  THIEL INDICATED
HE HAD COME FROM THE COAST OF FLORIDA.  CRAMER INQUIRED IF HE HAD USED
A RUBBER BOAT.  WHEN THIEL SAID THAT THE ONLY TIME HE WAS "SCARED TO
DEATH WAS WHEN I CAME OVER HERE WE GOT BOMBED," CRAMER REPLIED, "THEN
YOU HAVE COME OVER BY SUBMARINE, HAVEN'T YOU?"  THIEL TOLD CRAMER THAT
HE HAD "THREE AND A HALF OR FOUR THOUSAND DOLLARS" WITH HIM AND THAT
"IF YOU HAVE THE RIGHT KIND OF CONNECTION YOU CAN EVEN GET DOLLARS IN
GERMANY."  CRAMER OFFERED TO KEEP THIEL'S MONEY FOR HIM.  THIEL AGREED
BUT NOTHING WAS DONE ABOUT IT THAT EVENING.  CRAMER ADMITTED HE HAD A
"HUNCH" THAT THIEL WAS HERE ON A MISSION FOR THE GERMAN GOVERNMENT.  HE
ASKED THIEL "WHETHER HE HAD COME OVER HERE TO SPREAD RUMORS AND INCITE
UNREST."  CRAMER AFTER HIS ARREST TOLD AGENTS OF THE F.B.I. THAT HE HAD
SUSPECTED THAT THIEL HAD RECEIVED THE MONEY FROM THE GERMAN GOVERNMENT,
THAT THIEL IN FACT HAD TOLD HIM THAT HE WAS ON A MISSION FOR GERMANY,
AND THAT "WHATEVER HIS MISSION WAS, I THOUGHT THAT HE WAS SERIOUS IN
HIS UNDERTAKING."  THIEL FROM THE BEGINNING CLOTHED HIS ACTIONS WITH
SECRECY; WAS UNWILLING TO BE SEEN AT CRAMER'S ROOM ("BECAUSE I HAVE TOO
MANY ACQUAINTANCES THERE AND I DON'T WANT THEM TO SEE ME"); AND
CAUTIONED CRAMER AGAINST CONVERSING LOUDLY WITH HIM IN THE PUBLIC
TAVERN. 

SO THEY AGREED TO MEET AT THE TWIN OAKS INN AT 8 P.M. ON THE
FOLLOWING EVENING, JUNE 23, 1942.  AT THIS MEETING KERLING JOINED
THEM.  CRAMER HAD MET KERLING IN THIS COUNTRY AND KNEW HE HAD RETURNED
TO GERMANY.  KERLING AND THIEL TOLD CRAMER THAT THEY HAD COME OVER
TOGETHER.  CRAMER HAD A "HUNCH" THAT KERLING WAS HERE FOR THE SAME
PURPOSE AS THIEL.  KERLING LEFT THIEL AND CRAMER AFTER ABOUT AN HOUR
AND A HALF.  KERLING WAS FOLLOWED AND ARRESTED.  CRAMER AND THIEL
STAYED ON AT THE TAVERN FOR ABOUT ANOTHER HOUR.  AFTER KERLING LEFT,
THIEL AGREED TO ENTRUST HIS MONEY TO CRAMER FOR SAFEKEEPING.  HE TOLD
CRAMER TO TAKE OUT $200 WHICH THIEL OWED HIM.  BUT HE ASKED CRAMER NOT
TO PUT ALL OF THE BALANCE IN THE SAFE-DEPOSIT BOX - THAT HE SHOULD KEEP
SOME OF IT OUT "IN THE EVENT I NEED IT IN A HURRY."  THIEL WENT TO THE
WASHROOM TO REMOVE THE MONEY BELT.  HE HANDED IT TO CRAMER ON THE
STREET WHEN THEY LEFT THE TAVERN.  FROM THE TWIN OAKS THIEL AND CRAMER
WENT TO THOMPSON'S CAFETERIA WHERE THEY CONVERSED FOR ABOUT FIFTEEN
MINUTES.  THEY AGREED TO MEET THERE AT 8 P.M. ON JUNE 25TH.  THEY
PARTED.  THIEL WAS FOLLOWED AND ARRESTED. 

CRAMER RETURNED HOME.  HE PUT THIEL'S MONEY BELT IN A SHOE BOX.  HE
PUT SOME OF THE MONEY BETWEEN THE PAGES OF A BOOK.  LATER HE PUT THE
BALANCE IN HIS BANK, SOME IN A SAVINGS ACCOUNT, MOST OF IT IN HIS SAFE
DEPOSIT BOX.  HE AND THIEL HAD TALKED OF THIEL'S FIANCEE, NORMA KOPP. 
AT THE FIRST MEETING CRAMER HAD OFFERED TO WRITE HER ON THIEL'S
BEHALF.  HE DID SO.  HE DID NOT MENTION THIEL'S NAME BUT ASKED HER TO
COME TO HIS ROOM, SAYING HE HAD "SENSATIONAL" NEWS FOR HER.  CRAMER
APPEARED AT THOMPSON'S CAFETERIA AT 8 P.M. JUNE 25TH TO KEEP HIS
APPOINTMENT WITH THIEL.  HE WAITED ABOUT AN HOUR AND A HALF.  HE
RETURNED THE NEXT NIGHT, JUNE 26TH, AND DEFINITELY SUSPECTED THIEL HAD
BEEN ARRESTED.  THOUGH HE KNEW THIEL WAS REGISTERED AT THE HOTEL
COMMODORE, HE MADE NO ATTEMPT TO GET IN TOUCH WITH HIM THERE.  WHEN HE
RETURNED TO HIS ROOM THAT NIGHT, NORMA KOPP WAS WAITING FOR HIM.  SHE
TESTIFIED THAT HE TOLD HER THAT THIEL WAS HERE; THAT "THEY CAME ABOUT
SIX MEN WITH A U-BOAT, IN A RUBBER BOAT, AND LANDED IN FLORIDA"; THAT
THEY "BROUGHT SO MUCH MONEY ALONG FROM GERMANY, FROM THE GERMAN
GOVERNMENT" HE WAS KEEPING IT IN A SAFE-DEPOSIT BOX; AND THAT THEY "GET
INSTRUCTIONS FROM THE SITZ (HIDEOUT) IN THE BRONX WHAT TO DO, AND WHERE
TO GO."  THE NEXT MORNING CRAMER LEFT A NOTE FOR "WILLIAM THOMAS" AT
THE COMMODORE SAYING THAT NORMA KOPP HAD ARRIVED AND SUGGESTED A
RENDEZVOUS.  LATER IN THE DAY CRAMER WAS ARRESTED.  HE TOLD THE AGENTS
OF THE F.B.I. THAT THE NAME OF THE MAN WHO HAD BEEN WITH HIM AT
THOMPSON'S CAFETERIA ON THE EVENING OF JUNE 23RD WAS "WILLIAM THOMAS,"
THAT "THOMAS" HAD BEEN WORKING IN A FACTORY ON THE WEST COAST SINCE
MARCH, 1941, AND HAD NOT BEEN OUT OF THE UNITED STATES SINCE THEN.  HE
WAS ASKED IF "THOMAS" WAS NOT THIEL.  HE THEN ADMITTED HE WAS, SAYING
THAT THIEL HAD USED AN ASSUMED NAME, AS HE WAS HAVING DIFFICULTIES WITH
HIS DRAFT BOARD.  HE ALSO STATED THAT THE MONEY BELT THIEL GAVE HIM
CONTAINED ONLY $200 WHICH THIEL OWED HIM AND THAT THE $3,500 IN HIS
SAFE-DEPOSIT BOX BELONGED TO HIM AND WERE THE PROCEEDS FROM THE SALE OF
SECURITIES.  AFTER ABOUT AN HOUR OR SO OF THE FALSEHOODS, CRAMER ASKED
TO SPEAK TO ONE OF THE AGENTS ALONE.  THE REQUEST WAS GRANTED.  HE THEN
RECANTED HIS PREVIOUS FALSE STATEMENTS AND STATED THAT HE FELT SURE
THAT THIEL HAD COME FROM GERMANY BY SUBMARINE ON A MISSION FOR THE
GERMAN GOVERNMENT AND THAT HE THOUGHT THAT MISSION WAS "TO STIR UP
UNREST AMONG THE PEOPLE AND PROBABLY SPREAD PROPAGANDA."  HE STATED HE
HAD LIED IN ORDER TO PROTECT THIEL. 

THE COURT HOLDS THAT THIS EVIDENCE IS INSUFFICIENT TO SUSTAIN THE
CONVICTION OF CRAMER UNDER THE REQUIREMENTS OF THE CONSTITUTION.  WE
DISAGREE. 

II 

ARTICLE III, SEC. 3 OF THE CONSTITUTION DEFINES TREASON AS FOLLOWS:
"TREASON AGAINST THE UNITED STATES, SHALL CONSIST ONLY IN LEVYING WAR
AGAINST THEM, OR IN ADHERING TO THEIR ENEMIES, GIVING THEM AID AND
COMFORT.  NO PERSON SHALL BE CONVICTED OF TREASON UNLESS ON THE
TESTIMONY OF TWO WITNESSES TO THE SAME OVERT ACT, OR ON CONFESSION IN
OPEN COURT." 

THE CHARGE AGAINST CRAMER WAS THAT OF ADHERING.  THE ESSENTIAL
ELEMENTS OF THE CRIME ARE THAT CRAMER (1) WITH TREASONABLE INTENT (2)
GAVE AID AND COMFORT TO THE ENEMY.  FN1 

THERE WAS AMPLE EVIDENCE FOR THE JURY THAT CRAMER HAD A TREASONABLE
INTENT.  THE TRIAL COURT CHARGED THE JURY THAT "CRIMINAL INTENT AND
KNOWLEDGE, BEING A MENTAL STATE, ARE NOT SUSCEPTIBLE OF BEING PROVED BY
DIRECT EVIDENCE, AND THEREFORE YOU MUST INFER THE NATURE OF THE
DEFENDANT'S INTENT AND KNOWLEDGE FROM ALL THE CIRCUMSTANCES."  IT
CHARGED THAT PROOF OF CRIMINAL INTENT AND KNOWLEDGE IS SUFFICIENT IF
PROVED BEYOND A REASONABLE DOUBT, AND THAT THE TWO WITNESSES ARE NOT
NECESSARY FOR ANY OF THE FACTS OTHER THAN THE OVERT ACTS.  ON THAT
THERE APPARENTLY IS NO DISAGREEMENT.  IT ALSO CHARGED:  "NOW,
GENTLEMEN, MOTIVE SHOULD NOT BE CONFUSED WITH INTENT.  IF THE DEFENDANT
KNOWINGLY GIVES AID AND COMFORT TO ONE WHO HE KNOWS OR BELIEVES IS AN
ENEMY, THEN HE MUST BE TAKEN TO INTEND THE CONSEQUENCES OF HIS OWN
VOLUNTARY ACT, AND THE FACT THAT HIS MOTIVE MIGHT NOT HAVE BEEN TO AID
THE ENEMY IS NO DEFENSE.  IN OTHER WORDS, ONE CANNOT DO AN ACT WHICH HE
KNOWS WILL GIVE AID AND COMFORT TO A PERSON HE KNOWS TO BE AN ENEMY OF
THE UNITED STATES, AND THEN SEEK TO DISCLAIM CRIMINAL INTENT AND
KNOWLEDGE BY SAYING THAT ONE'S MOTIVE WAS NOT TO AID THE ENEMY.  SO IF
YOU BELIEVE THAT THE DEFENDANT PERFORMED ACTS WHICH BY THEIR NATURE
GAVE AID AND COMFORT TO THE ENEMY, KNOWING OR BELIEVING HIM TO BE AN
ENEMY, THEN YOU MUST FIND THAT HE HAD CRIMINAL INTENT, SINCE HE
INTENDED TO DO THE ACT FORBIDDEN BY THE LAW.  THE FACT THAT YOU MAY
BELIEVE THAT HIS MOTIVE IN SO DOING WAS, FOR EXAMPLE, MERELY TO HELP A
FRIEND, OR POSSIBLY FOR FINANCIAL GAIN, WOULD NOT CHANGE THE FACT THAT
HE HAD A CRIMINAL INTENT."  ON THAT THERE APPARENTLY IS NO
DISAGREEMENT.  A MAN WHO VOLUNTARILY ASSISTS ONE KNOWN OR BELIEVED TO
BE AN ENEMY AGENT MAY NOT DEFEND ON THE GROUND THAT HE BETRAYED HIS
COUNTRY FOR ONLY THIRTY PIECES OF SILVER.  SEE HANAUER V. DOANE, 12
WALL.  342, 347; SPROTT V. UNITED STATES, 20 WALL.  459, 463.  "THE
CONSEQUENCES OF HIS ACTS ARE TOO SERIOUS AND ENORMOUS TO ADMIT OF SUCH
A PLEA.  HE MUST BE TAKEN TO INTEND THE CONSEQUENCES OF HIS OWN
VOLUNTARY ACT."  HANAUER V. DOANE, SUPRA.  FOR THE SAME REASONS A MAN
CANNOT SLIP THROUGH OUR TREASON LAW BECAUSE HIS AID TO THOSE WHO WOULD
DESTROY HIS COUNTRY WAS PROMPTED BY A DESIRE TO "ACCOMMODATE A
FRIEND."  FN2  LOYALTY TO COUNTRY CANNOT BE SUBORDINATED TO THE
AMENITIES OF PERSONAL FRIENDSHIP. 

CRAMER HAD A TRAITOROUS INTENT IF HE KNEW OR BELIEVED THAT THIEL AND
KERLING WERE ENEMIES AND WERE WORKING HERE IN THE INTERESTS OF THE
GERMAN REICH.  THE TRIAL COURT CHARGED THAT MERE SUSPICION WAS NOT
ENOUGH; BUT THAT IT WAS NOT NECESSARY FOR CRAMER TO HAVE KNOWN ALL
THEIR PLANS.  THERE APPARENTLY IS NO DISAGREEMENT ON THAT.  BY THAT
TEST THE EVIDENCE AGAINST CRAMER WAS OVERWHELMING.  THE CONCLUSION IS
IRRESISTIBLE THAT CRAMER BELIEVED, IF HE DID NOT ACTUALLY KNOW, THAT
THIEL AND KERLING WERE HERE ON A SECRET MISSION FOR THE GERMAN REICH
WITH THE OBJECT OF INJURING THE UNITED STATES AND THAT THE MONEY WHICH
THIEL GAVE HIM FOR SAFEKEEPING HAD BEEN SUPPLIED BY GERMANY TO
FACILITATE THE PROJECT OF THE ENEMY.  THE TRIAL COURT CHARGED THAT IF
THE JURY FOUND THAT CRAMER HAD NO PURPOSE OR INTENTION OF ASSISTING THE
GERMAN REICH IN ITS PROSECUTION OF THE WAR OR IN HAMPERING THE UNITED
STATES IN ITS PROSECUTION OF THE WAR BUT ACTED SOLELY FOR THE PURPOSE
OF ASSISTING KERLING AND THIEL AS INDIVIDUALS, CRAMER SHOULD BE
ACQUITTED.  THERE WAS AMPLE EVIDENCE FOR THE JURY'S CONCLUSION THAT THE
ASSISTANCE CRAMER RENDERED WAS ASSISTANCE TO THE GERMAN REICH, NOT
MERELY ASSISTANCE TO KERLING AND THIEL AS INDIVIDUALS. 

THE TRIAL JUDGE STATED WHEN HE SENTENCED CRAMER THAT IT DID NOT
APPEAR THAT CRAMER KNEW THAT THIEL AND KERLING WERE IN POSSESSION OF
EXPLOSIVES OR OTHER MEANS FOR DESTROYING FACTORIES IN THIS COUNTRY OR
THAT THEY PLANNED TO DO THAT.  HE STATED THAT IF THERE HAD BEEN DIRECT
PROOF OF SUCH KNOWLEDGE HE WOULD HAVE SENTENCED CRAMER TO DEATH RATHER
THAN TO FORTY-FIVE YEARS IN PRISON.  BUT HOWEVER RELEVANT SUCH
PARTICULAR KNOWLEDGE MAY HAVE BEEN TO FIXING THE PUNISHMENT FOR
CRAMER'S ACTS OF TREASON, IT SURELY WAS NOT ESSENTIAL TO PROOF OF HIS
TRAITOROUS INTENT.  A DEFENDANT WHO HAS AIDED AN ENEMY AGENT IN THIS
COUNTRY MAY NOT ESCAPE CONVICTION FOR TREASON ON THE GROUND THAT HE WAS
NOT AWARE OF THE ENEMY'S PRECISE OBJECTIVES.  KNOWING OR BELIEVING THAT
THE AGENT WAS HERE ON A MISSION ON BEHALF OF A HOSTILE GOVERNMENT, HE
COULD NOT, BY SIMPLE FAILURE TO ASK TOO MANY QUESTIONS, ASSUME THAT
THIS MISSION WAS ONE OF CHARITY AND BENEVOLENCE TOWARD THE UNITED
STATES.  BUT THE PRESENT CASE IS MUCH STRONGER.  FOR CRAMER CLAIMS HE
BELIEVED THE ENEMY AGENT'S OBJECTIVE WAS TO DESTROY NATIONAL MORALE BY
PROPAGANDA AND NOT TO BLOW UP WAR FACTORIES.  PROPAGANDA DESIGNED TO
CAUSE DISUNITY AMONG ADVERSARIES IS ONE OF THE OLDER WEAPONS KNOWN TO
WARFARE, AND UPON OCCASION ONE OF THE MOST EFFECTIVE.  NO ONE CAN READ
THIS RECORD WITHOUT CONCLUDING THAT THE DEFENDANT CRAMER KNEW THIS.  HE
IS AN INTELLIGENT, IF MISGUIDED, MAN.  HE HAS A QUICK WIT SHARPENED BY
CONSIDERABLE LEARNING OF ITS KIND.  HE IS WIDELY READ AND A STUDENT OF
HISTORY AND PHILOSOPHY, PARTICULARLY RANKE AND NIETZSCHE.  HE HAD BEEN
AN OFFICER OF A PRO-GERMAN ORGANIZATION, AND HIS CLOSEST ASSOCIATE HAD
BEEN A ZEALOUS NAZI.  HE ALSO HAD LISTENED TO GERMAN PROPAGANDISTS OVER
THE SHORT WAVE.  BUT, IN ANY EVENT, IT IS IMMATERIAL WHETHER CRAMER WAS
ACQUAINTED WITH THE EFFICACY OF PROPAGANDA IN MODERN WARFARE. 
UNDOUBTEDLY HE KNEW THAT THE GERMAN GOVERNMENT THOUGHT IT EFFICACIOUS. 
WHEN HE WAS SHOWN CONSCIOUSLY AND VOLUNTARILY TO HAVE ASSISTED THIS
ENEMY PROGRAM HIS TRAITOROUS INTENT WAS THEN AND THERE SUFFICIENTLY
PROVED. 

THE COURT DOES NOT PURPORT TO SET ASIDE THE CONVICTION FOR LACK OF
SUFFICIENT EVIDENCE OF TRAITOROUS INTENT.  IT FREES CRAMER FROM THIS
TREASON CHARGE SOLELY ON THE GROUND THAT THE OVERT ACTS CHARGED ARE
INSUFFICIENT UNDER THE CONSTITUTIONAL REQUIREMENT. 

          III 

THE OVERT ACTS ALLEGED WERE (1) THAT CRAMER MET WITH THIEL AND
KERLING ON JUNE 23RD, 1942, AT THE TWIN OAKS INN AND "DID CONFER,
TREAT, AND COUNSEL" WITH THEM "FOR THE PURPOSE OF GIVING AND WITH THE
INTENT TO GIVE AID AND COMFORT" TO THE ENEMY; (2) THAT CRAMER "DID
ACCOMPANY, CONFER, TREAT, AND COUNSEL WITH" THIEL AT THE TWIN OAKS INN
AND AT THOMPSON'S CAFETERIA ON JUNE 23RD, 1942, "FOR THE PURPOSE OF
GIVING AND WITH INTENT TO GIVE AID AND COMFORT" TO THE ENEMY; AND (3)
THAT CRAMER GAVE FALSE INFORMATION OF THE CHARACTER WHICH HAS BEEN
ENUMERATED TO AGENTS OF THE F.B.I. "FOR THE PURPOSE OF CONCEALING THE
IDENTITY AND MISSION" OF THIEL AND "FOR THE PURPOSE OF GIVING AND WITH
INTENT TO GIVE AID AND COMFORT" TO THE ENEMY. 

THE COURT CONCEDES THAT AN OVERT ACT NEED NOT MANIFEST ON ITS FACE A
TRAITOROUS INTENTION.  BY THAT CONCESSION IT REJECTS THE DEFENSE BASED
ON THE TREASON CLAUSE WHICH CRAMER HAS MADE HERE.  THE COURT SAYS AN
OVERT ACT MUST "SHOW SUFFICIENT ACTION BY THE ACCUSED, IN ITS SETTING,
TO SUSTAIN A FINDING THAT THE ACCUSED ACTUALLY GAVE AID AND COMFORT TO
THE ENEMY."  IT SAYS, HOWEVER, THAT THE "PROTECTION OF THE TWO-WITNESS
RULE EXTENDS AT LEAST TO ALL ACTS OF THE DEFENDANT WHICH ARE USED TO
DRAW INCRIMINATING INFERENCES THAT AID AND COMFORT HAVE BEEN GIVEN." 
IT ADDS, "EVERY ACT, MOVEMENT, DEED, AND WORD OF THE DEFENDANT CHARGED
TO CONSTITUTE TREASON MUST BE SUPPORTED BY THE TESTIMONY OF TWO
WITNESSES.  THE TWO-WITNESS PRINCIPLE IS TO INTERDICT IMPUTATION OF
INCRIMINATING ACTS TO THE ACCUSED BY CIRCUMSTANTIAL EVIDENCE OR BY THE
TESTIMONY OF A SINGLE WITNESS.  THE PROSECUTION CANNOT RELY ON EVIDENCE
WHICH DOES NOT MEET THE CONSTITUTIONAL TEST FOR OVERT ACTS TO CREATE
ANY INFERENCE THAT THE ACCUSED DID OTHER ACTS OR DID SOMETHING MORE
THAN WAS SHOWN IN THE OVERT ACT, IN ORDER TO MAKE A GIVING OF AID AND
COMFORT TO THE ENEMY."  AND WHEN IT COMES TO THE OVERT ACTS OF MEETING
AND CONFERRING WITH THIEL AND KERLING THE COURT HOLDS THAT THEY ARE
INADEQUATE SINCE THERE WAS "NO TWO-WITNESS PROOF OF WHAT THEY SAID NOR
IN WHAT LANGUAGE THEY CONVERSED."  THAT IS TO SAY, REVERSIBLE ERROR IS
FOUND BECAUSE THE TWO WITNESSES WHO TESTIFIED TO THE FACT THAT CRAMER
MET TWICE WITH THE SABOTEURS DID NOT TESTIFY THAT CRAMER GAVE THEM
INFORMATION OF "VALUE TO THEIR MISSION" SUCH AS SHELTER, SUSTENANCE,
SUPPLIES, ENCOURAGEMENT OR COUNSEL. 

THAT CONCLUSION, WE SUBMIT, LEADS TO LUDICROUS RESULTS.  THE PRESENT
CASE IS AN EXCELLENT EXAMPLE. 

IT IS CONCEDED THAT IF THE TWO WITNESSES HAD TESTIFIED NOT ONLY THAT
THEY SAW CRAMER CONFERRING WITH THIEL AND KERLING BUT ALSO HEARD HIM
AGREE TO KEEP THIEL'S MONEY AND SAW HIM TAKE IT, THE RESULT WOULD BE
DIFFERENT.  BUT THE ASSUMPTION IS THAT SINCE THE TWO WITNESSES COULD
NOT TESTIFY AS TO WHAT HAPPENED AT THE MEETINGS, WE MUST APPRAISE THE
MEETINGS IN ISOLATION FROM THE OTHER FACTS OF THE RECORD.  THEREIN LIES
THE FALLACY OF THE ARGUMENT. 

IN THE FIRST PLACE, WE FULLY AGREE THAT UNDER THE CONSTITUTIONAL
PROVISION THERE CAN BE NO CONVICTION OF TREASON WITHOUT PROOF OF TWO
WITNESSES OF AN OVERT ACT OF TREASON.  WE ALSO AGREE THAT THE ACT SO
PROVED NEED NOT ITSELF MANIFEST ON ITS FACE THE TREASONABLE INTENT. 
AND AS THE COURT STATES, SUCH INTENT NEED NOT BE PROVED BY TWO
WITNESSES.  IT MAY EVEN BE ESTABLISHED BY CIRCUMSTANTIAL EVIDENCE.  FOR
IT IS WELL ESTABLISHED THAT THE OVERT ACT AND THE INTENT ARE SEPARATE
AND DISTINCT ELEMENTS OF THE CRIME.  FN3  THE "INTENT MAY BE PROVED BY
ONE WITNESS, COLLECTED FROM CIRCUMSTANCES, OR EVEN BY A SINGLE FACT." 
CASE OF FRIES, 9 FED. CAS. 826, 909, NO. 5126; RESPUBLICA V. ROBERTS, 1
DALLAS 39; UNITED STATES V. LEE, 26 FED. CAS. 907, NO. 15,584; TRIAL OF
DAVID MACLANE, 26 HOW.  ST. TR. 721, 795-798.  ACTS INNOCENT ON THEIR
FACE, WHEN JUDGED IN THE LIGHT OF THEIR PURPOSE AND OF RELATED EVENTS,
MAY TURN OUT TO BE ACTS OF AID AND COMFORT COMMITTED WITH TREASONABLE
PURPOSE.  IT IS THE OVERT ACT CHARGED AS SUCH IN THE INDICTMENT WHICH
MUST BE PROVED BY TWO WITNESSES AND NOT THE RELATED EVENTS WHICH MAKE
MANIFEST ITS TREASONABLE QUALITY AND PURPOSE.  THIS, WE THINK, IS THE
CORRECT AND NECESSARY CONCLUSION TO BE DRAWN FROM THE CONCESSION THAT
THE OVERT ACT NEED NOT ON ITS FACE MANIFEST THE GUILTY PURPOSE.  THE
GROSSEST AND MOST DANGEROUS ACT OF TREASON MAY BE, AS IN THIS CASE, AND
OFTEN IS, INNOCENT ON ITS FACE.  BUT THE RULING OF THE COURT THAT THE
RELATED ACTS AND EVENTS WHICH SHOW THE TRUE CHARACTER OF THE OVERT ACT
CHARGED MUST BE PROVED BY TWO WITNESSES IS WITHOUT WARRANT UNDER THE
CONSTITUTIONAL PROVISIONS, AND IS SO REMOTE FROM THE PRACTICAL
REALITIES OF PROVING THE OFFENSE, AS TO RENDER THE CONSTITUTIONAL
COMMAND UNWORKABLE.  THE TREASONABLE INTENT OR PURPOSE WHICH IT IS SAID
MAY BE PROVED BY A SINGLE WITNESS OR CIRCUMSTANTIAL EVIDENCE, MUST, IN
THE ABSENCE OF A CONFESSION OF GUILT IN OPEN COURT, BE INFERRED FROM
ALL THE FACTS AND CIRCUMSTANCES WHICH SURROUND AND RELATE TO THE OVERT
ACT.  INFERENCE OF THE TREASONABLE PURPOSE FROM EVENTS AND ACTS RELATED
TO OR SURROUNDING THE OVERT ACT NECESSARILY INCLUDES THE INFERENCE THAT
THE ACCUSED COMMITTED THE OVERT ACT WITH THE KNOWLEDGE OR UNDERSTANDING
OF ITS TREASONABLE CHARACTER.  TO SAY THAT THE TREASONABLE PURPOSE WITH
WHICH THE ACCUSED COMMITTED THE OVERT ACT MAY BE INFERRED FROM RELATED
EVENTS PROVED BY A SINGLE WITNESS, AND AT THE SAME TIME TO SAY THAT SO
FAR AS THEY SHOW THE TREASONABLE CHARACTER OF THE OVERT ACT, THEY MUST
BE PROVED BY TWO WITNESSES, IS A CONTRADICTION IN TERMS.  THE PRACTICAL
EFFECT OF SUCH A DOCTRINE IS TO REQUIRE PROOF BY TWO WITNESSES, NOT
ONLY OF THE OVERT ACT CHARGED WHICH THE CONSTITUTION REQUIRES BUT OF
EVERY OTHER FACT AND CIRCUMSTANCE RELIED UPON TO SHOW THE TREASONABLE
CHARACTER OF THE OVERT ACT AND THE TREASONABLE PURPOSE WITH WHICH IT
WAS COMMITTED WHICH THE CONSTITUTION PLAINLY DOES NOT REQUIRE.  HERE,
AS IN PRACTICALLY ALL CASES WHERE THERE IS NO CONFESSION IN OPEN COURT,
THE TWO ARE INSEPARABLE, SAVE ONLY IN THE SINGLE INSTANCE WHERE THE
OVERT ACT MANIFESTS ITS TREASONABLE CHARACTER ON ITS FACE.  THE COURT
THUS IN SUBSTANCE ADOPTS THE CONTENTION OF THE RESPONDENT, WHICH IT HAS
REJECTED IN WORDS, AND FOR ALL PRACTICAL PURPOSES REQUIRES PROOF BY TWO
WITNESSES, NOT ONLY OF THE OVERT ACT BUT OF ALL OTHER ELEMENTS OF THE
CRIME SAVE ONLY IN THE CASE WHERE THE ACCUSED CONFESSES IN OPEN COURT. 
IT THUS CONFUSES PROOF OF THE OVERT ACT WITH PROOF OF THE PURPOSE OR
INTENT WITH WHICH THE OVERT ACT WAS COMMITTED AND, WITHOUT HISTORICAL
SUPPORT, EXPANDS THE CONSTITUTIONAL REQUIREMENT SO AS TO INCLUDE AN
ELEMENT OF PROOF NOT EMBRACED BY ITS WORDS.    WE HAVE DEVELOPED IN THE
APPENDIX TO THIS OPINION THE HISTORIC FUNCTION OF THE OVERT ACT IN
TREASON CASES.  IT IS PLAIN FROM THOSE MATERIALS THAT THE REQUIREMENT
OF AN OVERT ACT IS DESIGNED TO PRECLUDE PUNISHMENT FOR TREASONABLE
PLANS OR SCHEMES OR HOPES WHICH HAVE NEVER MOVED OUT OF THE REALM OF
THOUGHT OR SPEECH.  IT IS MADE A NECESSARY INGREDIENT OF THE CRIME TO
FORECLOSE PROSECUTIONS FOR CONSTRUCTIVE TREASON.  THE TREASONABLE
PROJECT IS COMPLETE AS A CRIME ONLY WHEN THE TRAITOROUS INTENT HAS
RIPENED INTO A PHYSICAL AND OBSERVABLE ACT.  THE ACT STANDING ALONE MAY
APPEAR TO BE INNOCENT OR INDIFFERENT, SUCH AS JOINING A PERSON AT A
TABLE, STEPPING INTO A BOAT, OR CARRYING A PARCEL OF FOOD.  THAT ALONE
IS INSUFFICIENT.  IT MUST BE ESTABLISHED BEYOND A REASONABLE DOUBT THAT
THE ACT WAS PART OF THE TREASONABLE PROJECT AND DONE IN FURTHERANCE OF
IT. ITS CHARACTER AND SIGNIFICANCE ARE TO BE JUDGED BY ITS PLACE IN THE
EFFECTUATION OF THE PROJECT.  THAT DOES NOT MEAN THAT WHERE THE
TREASONABLE SCHEME INVOLVES SEVERAL TREASONABLE ACTS, AND THE OVERT ACT
WHICH IS CHARGED HAS BEEN PROVED BY TWO WITNESSES, THAT ALL THE OTHER
ACTS WHICH TEND TO SHOW THE TREASONABLE CHARACTER OF THE OVERT ACT AND
THE TREASONABLE PURPOSE WITH WHICH IT WAS COMMITTED MUST BE PROVED BY
TWO WITNESSES.  THE CONSTITUTION DOES NOT SO DECLARE.  THERE IS NO
HISTORICAL SUPPORT FOR SAYING THAT THE PHRASE "TWO WITNESSES TO THE
SAME OVERT ACT" MAY BE OR CAN BE READ AS MEANING TWO WITNESSES TO ALL
THE ACTS INVOLVED IN THE TREASONABLE SCHEME OF THE ACCUSED.  OBVIOUSLY
ONE OVERT ACT PROVED BY TWO WITNESSES IS ENOUGH TO SUSTAIN A CONVICTION
EVEN THOUGH THE ACCUSED HAS COMMITTED MANY OTHER ACTS WHICH CAN BE
PROVED BY ONLY ONE WITNESS OR BY HIS OWN ADMISSION IN OPEN COURT. 
HENCE, IT IS ENOUGH THAT THE OVERT ACT WHICH IS CHARGED BE PROVED BY
TWO WITNESSES.  AS THE COURT CONCEDES, ITS TREASONABLE CHARACTER NEED
NOT BE MANIFEST UPON ITS FACE.  WE SAY THAT ITS TRUE CHARACTER MAY BE
PROVED BY ANY COMPETENT EVIDENCE SUFFICIENT TO SUSTAIN THE VERDICT OF A
JURY.  ANY OTHER CONCLUSION LEADS TO SUCH ABSURD RESULTS AS TO PRECLUDE
THE SUPPOSITION THAT THE TWO-WITNESS RULE WAS INTENDED TO HAVE THE
MEANING ATTRIBUTED TO IT. 

WHEN WE APPLY THAT TEST TO THE FACTS OF THIS CASE IT IS CLEAR TO US
THAT THE JUDGMENT OF CONVICTION AGAINST CRAMER SHOULD NOT BE SET
ASIDE.  THE HISTORICAL MATERIALS WHICH WE HAVE SET FORTH IN THE
APPENDIX TO THIS OPINION ESTABLISH THAT A MEETING WITH THE ENEMY MAY BE
ADEQUATE AS AN OVERT ACT OF TREASON.  HALE, KELYNG AND FOSTER ESTABLISH
THAT BEYOND PERADVENTURE OF DOUBT.  SUCH A MEETING MIGHT BE INNOCENT ON
ITS FACE.  IT MIGHT ALSO BE INNOCENT IN ITS SETTING, AS HALE, KELYNG
AND FOSTER POINT OUT, WHERE, FOR EXAMPLE, IT WAS ACCIDENTAL.  WE WOULD
HAVE SUCH A CASE HERE IF CRAMER'S FIRST MEETING WITH THIEL WAS CHARGED
AS AN OVERT ACT.  FOR, AS WE HAVE SEEN, CRAMER WENT TO THE MEETING
WITHOUT KNOWLEDGE THAT HE WOULD MEET AND CONFER WITH THIEL.  BUT THE
SUBSEQUENT MEETINGS WERE ARRANGED BETWEEN THEM.  THEY WERE ARRANGED IN
FURTHERANCE OF THIEL'S DESIGNS.  CRAMER WAS NOT ONLY ON NOTICE THAT
THIEL WAS HERE ON A MISSION INIMICAL TO THE INTERESTS OF THIS NATION. 
HE HAD AGREED AT THE FIRST MEETING TO HIDE THIEL'S MONEY.  HE HAD
AGREED TO CONTACT NORMA KOPP.  HE KNEW THAT THIEL WANTED HIS IDENTITY
AND PRESENCE IN NEW YORK CONCEALED.  THIS WAS THE SETTING IN WHICH THE
LATER MEETINGS WERE HELD.  THE MEETINGS TAKE ON THEIR TRUE CHARACTER
AND SIGNIFICANCE FROM THAT SETTING.  THEY CONSTITUTE ACTS.  THEY
DEMONSTRATE THAT CRAMER HAD A LIKING FOR THIEL'S DESIGN TO THE EXTENT
OF AIDING HIM IN IT.  THEY SHOW BEYOND DOUBT THAT CRAMER HAD MORE THAN
A TREASONABLE INTENT; THAT THAT INTENT HAD MOVED FROM THE REALM OF
THOUGHT INTO THE REALM OF ACTION.  SINCE TWO WITNESSES PROVED THAT THE
MEETINGS TOOK PLACE, THEIR CHARACTER AND SIGNIFICANCE MIGHT BE PROVED
BY ANY COMPETENT EVIDENCE. 

IN THE SECOND PLACE, THIS JUDGMENT OF CONVICTION SHOULD BE SUSTAINED
EVEN THOUGH WE ASSUME, ARGUENDO, THAT CRAMER'S MOTION TO DISMISS AT THE
END OF THE GOVERNMENT'S CASE SHOULD HAVE BEEN GRANTED.  THE CONCERN OF
THE COURT IS THAT ACTS INNOCENT ON THEIR FACE MAY BE TRANSFORMED INTO
SINISTER OR GUILTY ACTS BY CIRCUMSTANTIAL EVIDENCE, BY INFERENCE, BY
SPECULATION.  THE RULE ANNOUNCED BY THE COURT IS BASED ON A DESIRE FOR
TRUSTWORTHY EVIDENCE IN DETERMINING THE CHARACTER AND SIGNIFICANCE OF
THE OVERT ACTS.  BUT THIS IS NOT A CASE WHERE AN ACT INNOCENT ON ITS
FACE IS GIVEN A SINISTER ASPECT AND MADE A PART OF A TREASONOUS DESIGN
BY CIRCUMSTANTIAL EVIDENCE, BY INFERENCE, OR BY THE TESTIMONY OF A
SINGLE WITNESS FOR THE PROSECUTION.  WE KNOW FROM CRAMER'S OWN
TESTIMONY - FROM HIS ADMISSIONS AT THE TRIAL - EXACTLY WHAT HAPPENED. 

WE KNOW THE CHARACTER OF THE MEETINGS FROM CRAMER'S OWN ADMISSIONS. 
WE KNOW FROM HIS OWN LIPS THAT THEY WERE NOT ACCIDENTAL OR CASUAL
CONFERENCES, OR INNOCENT, SOCIAL MEETINGS.  HE ARRANGED THEM WITH
THIEL.  WHEN HE DID SO HE BELIEVED THAT THIEL WAS HERE ON A SECRET
MISSION FOR THE GERMAN REICH WITH THE OBJECT OF INJURING THIS NATION. 
HE ALSO KNEW THAT THIEL WAS LOOKING FOR A PLACE TO HIDE HIS MONEY. 
CRAMER HAD OFFERED TO KEEP IT FOR THIEL AND THIEL HAD ACCEPTED THE
OFFER.  CRAMER HAD ALSO OFFERED TO WRITE NORMA KOPP, THIEL'S FIANCEE,
WITHOUT MENTIONING THIEL'S NAME.  CRAMER ALSO KNEW THAT THIEL WANTED
HIS IDENTITY AND HIS PRESENCE IN NEW YORK CONCEALED.  CRAMER'S
ADMISSIONS AT THE TRIAL GAVE CHARACTER AND SIGNIFICANCE TO THOSE
MEETINGS.  THOSE ADMISSIONS PLUS THE FINDING OF TREASONABLE INTENT
PLACE BEYOND A REASONABLE DOUBT THE CONCLUSION THAT THOSE MEETINGS WERE
STEPS IN AND PART AND PARCEL OF THE TREASONABLE PROJECT. 

NOR NEED WE GUESS OR SPECULATE FOR KNOWLEDGE OF WHAT HAPPENED AT THE
MEETINGS.  WE NEED NOT RELY ON CIRCUMSTANTIAL EVIDENCE, DRAW INFERENCES
FROM OTHER FACTS, OR RESORT TO SECONDARY SOURCES.  AGAIN WE KNOW FROM
CRAMER'S TESTIMONY AT THE TRIAL - FROM HIS OWN ADMISSIONS - PRECISELY
WHAT TRANSPIRED. 

CRAMER TOLD THE WHOLE STORY IN OPEN COURT.  HE ADMITTED HE AGREED TO
ACT AND DID ACT AS CUSTODIAN OF THE SABOTEUR THIEL'S MONEY.  HE AGREED
TO HOLD IT AVAILABLE FOR THIEL'S USE WHENEVER THIEL MIGHT NEED IT.  IT
IS DIFFICULT TO IMAGINE WHAT GREATER AID ONE COULD GIVE A SABOTEUR
UNLESS HE PARTICIPATED IN THE SABOTAGE HIMSELF.  FUNDS WERE AS
ESSENTIAL TO THIEL'S PLANS AS THE EXPLOSIVES HE BURIED IN THE SANDS OF
FLORIDA.  WITHOUT FUNDS THE MISSION OF ALL THE SABOTEURS WOULD HAVE
SOON ENDED OR BEEN SERIOUSLY CRIPPLED.  CRAMER DID NOT STOP HERE. 
PRESERVATION OF SECRECY WAS ESSENTIAL TO THIS INVASION OF THE ENEMY. 
IT WAS VITAL IF THE PROJECT WAS TO BE SUCCESSFUL.  IN THIS RESPECT
CRAMER ALSO ASSISTED THIEL.  HE COOPERATED WITH THIEL IN THE
CONCEALMENT OF THIEL'S IDENTITY AND PRESENCE IN NEW YORK CITY.  HE DID
HIS BEST TO THROW FEDERAL OFFICERS OFF THE TRAIL AND TO MISLEAD THEM. 
HE MADE FALSE STATEMENTS TO THEM, SAYING THAT THIEL'S TRUE NAME WAS
"THOMAS" AND THAT THIEL HAD NOT BEEN OUT OF THE COUNTRY SINCE THE WAR
BEGAN. 

IF CRAMER HAD NOT TESTIFIED, WE WOULD THEN BE CONFRONTED WITH THE
QUESTIONS DISCUSSED IN THE OPINION OF THE COURT.  BUT HE TOOK THE STAND
AND TOLD THE WHOLE STORY.  IT IS TRUE THAT AT THE END OF THE
GOVERNMENT'S CASE CRAMER MOVED TO DISMISS ON THE GROUND THAT THE CRIME
CHARGED HAD NOT BEEN MADE OUT.  THAT MOTION WAS DENIED AND AN EXCEPTION
TAKEN.  IF CRAMER HAD RESTED THERE, THE CASE SUBMITTED TO THE JURY AND
A JUDGMENT OF CONVICTION RENDERED, WE WOULD HAVE BEFORE US THE PROBLEM
PRESENTED IN THE OPINION OF THE COURT.  BUT CRAMER DID NOT REST ON THAT
MOTION.  HE TOOK THE STAND AND TOLD THE WHOLE STORY.  ANY DEFECT IN THE
PROOF WAS CURED BY THAT PROCEDURE.  AS STATED IN BOGK V. GASSERT, 149
U.S. 17, 23, "A DEFENDANT HAS AN UNDOUBTED RIGHT TO STAND UPON HIS
MOTION FOR A NONSUIT, AND HAVE HIS WRIT OF ERROR IF IT BE REFUSED; BUT
HE HAS NO RIGHT TO INSIST UPON HIS EXCEPTION, AFTER HAVING SUBSEQUENTLY
PUT IN HIS TESTIMONY AND MADE HIS CASE UPON THE MERITS, SINCE THE COURT
AND JURY HAVE THE RIGHT TO CONSIDER THE WHOLE CASE AS MADE BY THE
TESTIMONY.  IT NOT INFREQUENTLY HAPPENS THAT THE DEFENDANT HIMSELF, BY
HIS OWN EVIDENCE, SUPPLIES THE MISSING LINK."  AND SEE SIGAFUS V.
PORTER, 179 U.S. 116, 121; MCCABE & STEEN CO. V. WILSON, 209 U.S. 275,
276; BATES V. MILLER, 133 F.2D 645, 647-648; 9 WIGMORE ON EVIDENCE (3D
ED. 1940) SEC. 2496.  AND THE RULE OBTAINS IN CRIMINAL AS WELL AS IN
CIVIL CASES.  SHERIDAN V. UNITED STATES, 112 F.2D 503, 504, REV'D ON
OTHER GROUNDS 312 U.S. 654; EDWARDS V. UNITED STATES, 7 F.2D 357, 359;
BALDWIN V. UNITED STATES, 72 F.2D 810, 812. 

WHY THEN MUST WE DISREGARD CRAMER'S ADMISSIONS AT THE TRIAL?  WHY
MUST WE ASSUME, AS DOES THIS COURT, THAT THOSE ADMISSIONS ARE OUT OF
THE CASE AND THAT OUR DECISION MUST DEPEND SOLELY ON THE EVIDENCE
PRESENTED BY THE GOVERNMENT? 

THE CONSTITUTION SAYS THAT A "CONFESSION IN OPEN COURT" IS SUFFICIENT
TO SUSTAIN A CONVICTION OF TREASON.  IT WAS HELD IN UNITED STATES V.
MAGTIBAY, 2 PHILIPPINE REP. 703, THAT A CONFESSION IN OPEN COURT TO THE
OVERT ACTS CHARGED IN THE INDICTMENT WAS NOT AN ADEQUATE SUBSTITUTE FOR
THE TESTIMONY OF TWO WITNESSES WHERE THE ACCUSED DENIED TREASONABLE
PURPOSE.  WE NEED NOT GO SO FAR AS TO SAY THAT IF THE WHOLE CRIME MAY
BE PROVED BY AN ADMISSION BY THE ACCUSED IN OPEN COURT, ONE OF THE
INGREDIENTS OF THE OFFENSE MAY BE ESTABLISHED IN LIKE MANNER.  SEE
RESPUBLICA V. ROBERTS, SUPRA.  WE DO NOT SAY THAT IF THE GOVERNMENT
COMPLETELY FAILS TO PROVE AN OVERT ACT OR PROVES IT BY ONE WITNESS
ONLY, THE DEFECT CAN BE CURED BY THE TESTIMONY OF OTHER WITNESSES OR BY
THE ADMISSIONS OF THE ACCUSED.  WE DO SAY THAT A MEETING WITH THE ENEMY
IS AN ACT AND MAY IN ITS SETTING BE AN OVERT ACT OF TREASON.  WE AGREE
THAT OVERT ACTS INNOCENT ON THEIR FACE SHOULD NOT BE LIGHTLY
TRANSFORMED INTO INCRIMINATING ACTS.  BUT SO LONG AS OVERT ACTS OF
TREASON NEED NOT MANIFEST TREASON ON THEIR FACE, AS THE COURT CONCEDES,
THE SUFFICIENCY OF THE EVIDENCE TO ESTABLISH THE TREASONABLE CHARACTER
OF THE ACT, LIKE THE EVIDENCE OF TREASONABLE INTENT, DEPENDS ON THE
QUALITY OF THAT EVIDENCE WHATEVER THE NUMBER OF WITNESSES WHO SUPPLIED
IT.  THERE CAN BE NO DOUBT IN THIS CASE ON THAT SCORE.  CERTAINLY A
PERSON WHO TAKES THE STAND IN DEFENSE OF A TREASON CHARGE AGAINST HIM
WILL NOT BE PRESUMED TO COMMIT PERJURY WHEN HE MAKES ADMISSIONS AGAINST
SELF-INTEREST.  ADMISSIONS AGAINST SELF-INTEREST HAVE INDEED ALWAYS
BEEN CONSIDERED AS THE HIGHEST CHARACTER OF EVIDENCE.  WHEN TWO
WITNESSES TESTIFY TO THE OVERT ACTS, WHY THEN ARE NOT ADMISSIONS OF THE
ACCUSED IN OPEN COURT ADEQUATE TO ESTABLISH THEIR TRUE CHARACTER? 
COULD THE TESTIMONY OF ANY NUMBER OF WITNESSES MORE CERTAINLY OR
CONCLUSIVELY ESTABLISH THE SIGNIFICANCE OF WHAT WAS DONE?  TAKE THE
CASE WHERE TWO WITNESSES TESTIFY THAT THE ACCUSED DELIVERED A PACKAGE
TO THE ENEMY, THE ACCUSED ADMITTING IN OPEN COURT THAT THE PACKAGE
CONTAINED GUNS OR AMMUNITION.  OR TWO WITNESSES TESTIFY THAT THE
ACCUSED SENT THE ENEMY A MESSAGE, INNOCUOUS ON ITS FACE, THE ACCUSED
ADMITTING IN OPEN COURT THAT THE MESSAGE WAS A CODE CONTAINING MILITARY
INFORMATION.  MUST A CONVICTION BE SET ASIDE BECAUSE THE TWO WITNESSES
DID NOT TESTIFY TO WHAT THE ACCUSED ADMITTED IN OPEN COURT?  WE SAY NO.
IN SUCH CIRCUMSTANCES WE HAVE NO EXAMPLES OF CONSTRUCTIVE TREASON.  THE
INTENT IS NOT TAKEN FOR THE DEED.  PROOF OF THE OVERT ACT PLUS PROOF OF
A TREASONABLE INTENT MAKE CLEAR THAT THE TREASONABLE DESIGN HAS MOVED
OUT OF THE REALM OF THOUGHT INTO THE FIELD OF ACTION.  AND ANY
POSSIBILITY THAT AN ACT INNOCENT ON ITS FACE HAS BEEN TRANSFORMED INTO
A SINISTER OR GUILTY ACT IS FORECLOSED.  FOR THE SIGNIFICANCE AND
CHARACTER OF THE ACT ARE SUPPLIED BY THE ADMISSIONS FROM THE LIPS OF
THE ACCUSED IN OPEN COURT.  THE CONTRARY RESULT COULD BE REACHED ONLY
IF IT WERE NECESSARY THAT THE OVERT ACT MANIFEST TREASON ON ITS FACE. 
THAT THEORY IS REJECTED BY THE COURT.  BUT ONCE REJECTED IT IS FATAL TO
THE DEFENSE. 

CRAMER'S COUNSEL COULD NOT DEFEND ON THE GROUNDS ADVANCED BY THE
COURT FOR THE SIMPLE REASON THAT THE GOVERNMENT HAVING PROVED BY TWO
WITNESSES THAT CRAMER MET AND CONFERRED WITH THE SABOTEURS, ANY
POSSIBLE INSUFFICIENCY IN THE EVIDENCE WHICH IT ADDUCED TO SHOW THE
CHARACTER AND SIGNIFICANCE OF THE MEETINGS WAS CURED BY CRAMER'S OWN
TESTIMONY.  CRAMER CAN DEFEND ONLY ON THE GROUND THAT THE OVERT ACT
MUST MANIFEST TREASON, WHICH THE COURT REJECTS, OR ON THE GROUND THAT
HE HAD NO TREASONABLE INTENT, WHICH THE JURY FOUND AGAINST HIM ON AN
ABUNDANCE OF EVIDENCE.  THOSE ARE THE ONLY ALTERNATIVES BECAUSE
CONCEDEDLY CONFERENCES WITH SABOTEURS HERE ON A MISSION FOR THE ENEMY
MAY BE WHOLLY ADEQUATE AS OVERT ACTS UNDER THE TREASON CLAUSE.  THEY
WERE PROVED BY TWO WITNESSES AS REQUIRED BY THE CONSTITUTION.  ANY
POSSIBLE DOUBT AS TO THEIR CHARACTER AND SIGNIFICANCE AS PARTS OF A
TREASONABLE PROJECT WERE REMOVED BY THE DEFENDANT'S OWN ADMISSIONS IN
OPEN COURT.  TO SAY THAT WE ARE PRECLUDED FROM CONSIDERING THOSE
ADMISSIONS IN WEIGHING THE SUFFICIENCY OF THE EVIDENCE OF THE TRUE
CHARACTER AND SIGNIFICANCE OF THE OVERT ACTS IS NEITHER GOOD SENSE NOR
GOOD LAW.  SUCH A RESULT MAKES THE WAY EASY FOR THE TRAITOR, DOES
VIOLENCE TO THE CONSTITUTION AND MAKES JUSTICE TRULY BLIND.    FN1  IT
IS WELL ESTABLISHED THAT THE OVERT ACT AND THE INTENT ARE SEPARATE AND
DISTINCT ELEMENTS OF THE CRIME OF TREASON UNDER THE CONSTITUTION.  SEE
EX PARTE BOLLMAN, 4 CRANCH 75, 126; UNITED STATES V. BURR, 25 FED. CAS.
2, 13-14, NO. 14,692A; UNITED STATES V. LEE, 26 FED. CAS. 907, NO.
15,584; UNITED STATES V. VIGOL, 28 FED. CAS. 376, NO. 16,621; UNITED
STATES V. HANWAY, 26 FED. CAS. 105, 126, NO. 15,299; UNITED STATES V.
GREINER, 26 FED. CAS. 36, 39, NO. 15,262; UNITED STATES V. GREATHOUSE,
26 FED. CAS. 18, 22, NO. 15,254; UNITED STATES V. WERNER, 247 F. 708,
709-710; UNITED STATES V. FRICKE, 259 F. 673, 677; UNITED STATES V.
ROBINSON, 259 F. 685, 690; UNITED STATES V. STEPHAN, 50 F.SUPP.  738,
742-743, AFF'D 133 F.2D 87, 99.  CHIEF JUSTICE MARSHALL RULED IN UNITED
STATES V. BURR, 25 FED. CAS. 52, 54, NO. 14,692H, THAT IT WAS IN THE
DISCRETION OF THE PROSECUTOR TO PRESENT EVIDENCE OF THE INTENT BEFORE
PROOF OF AN OVERT ACT.  AND SEE UNITED STATES V. LEE, SUPRA. 

FN2  CARLISLE V. UNITED STATES, 16 WALL.  147, 150-151; SPROTT V.
UNITED STATES, 20 WALL.  459, 463-464; UNITED STATES V. HODGES, 26 FED.
CAS. 332, 334, NO. 15,374; CHARGE TO GRAND JURY - TREASON, 30 FED. CAS.
1032, 1034, NO. 18,270; SEE ALSO 1 EAST, PLEAS OF THE CROWN (1806) PP.
77-81; WARREN, WHAT IS GIVING AID AND COMFORT TO THE ENEMY (1918), 27
YALE L.J. 331, 343-345; HAZARD AND STERN, "EXTERIOR TREASON" (1938), 6
U. OF CHI.  L. REV. 77, 84-85.  BUT A MERE SHOWING OF AID AND
ASSISTANCE TO AN ALIEN ENEMY PERMANENTLY RESIDING IN THE UNITED STATES
WITHOUT ANY SHOWING THAT THE ENEMY ALIEN HAS DESIGNS AGAINST THE
INTERESTS OF THE UNITED STATES, DOES NOT WITHOUT MORE ESTABLISH AN ACT
OF TREASON.  SEE UNITED STATES V. FRICKE, 259 F. 673, 682. 

FN3  SEE NOTE 1, SUPRA.

                               APPENDIX 

THE MOST RELEVANT SOURCE OF MATERIALS FOR INTERPRETATION OF THE
TREASON CLAUSE OF THE CONSTITUTION IS THE STATUTE OF 25 EDW.  III,
STAT. 5, CH. 2(1351) AND THE CONSTRUCTION WHICH WAS GIVEN IT.  IT WAS
WITH THAT BODY OF LAW AND THE ENGLISH AND COLONIAL EXPERIENCE UNDER IT
THAT THE FRAMERS WERE ACQUAINTED.  THAT STATUTE SPECIFIED SEVEN
OFFENSES AS CONSTITUTING TREASON.  AS RESPECTS THE THREE OFFENSES
RELEVANT TO OUR PRESENT DISCUSSION, IT PROVIDED AS FOLLOWS:  IF A MAN
"DOTH COMPASS OR IMAGINE THE DEATH" OF THE KING, OR "IF A MAN DO LEVY
WAR" AGAINST THE KING IN HIS REALM, OR IF HE "BE ADHERENT TO THE KING'S
ENEMIES IN HIS REALM, GIVING TO THEM AID AND COMFORT IN THE REALM, OR
ELSEWHERE, AND THEREOF BE PROBABLY ATTAINTED OF OPEN DEED," HE SHALL BE
GUILTY OF TREASON. 

COKE MAKES CLEAR THAT THE REQUIREMENT OF AN OVERT ACT UNDER THE
STATUTE APPLIES TO ALL OF THE OFFENSES INCLUDED IN THE CATEGORY OF
TREASON.  SEE COKE, INSTITUTES OF THE LAWS OF ENGLAND, THIRD PART (5TH
ED., LONDON, 1671), P. 5.  THERE ARE INDICATIONS BY COKE THAT THE OVERT
ACT WAS A SEPARATE ELEMENT OF THE OFFENSE AND THAT ITS FUNCTION WAS TO
SHOW THAT THE TREASONABLE DESIGN HAD MOVED FROM THOUGHT TO ACTION. 
ID., PP. 5, 12, 14, 38.  HALE IS SOMEWHAT MORE EXPLICIT.  IN DISCUSSING
THE OFFENSE OF COMPASSING THE KING'S DEATH HE INDICATES THAT THE OVERT
ACT MAY BE "INDIFFERENT" IN CHARACTER.  HE SAYS, "THAT WORDS MAY
EXPOUND AN OVERT-ACT TO MAKE GOOD AN INDICTMENT OF TREASON OF
COMPASSING THE KING'S DEATH, WHICH OVERT-ACT POSSIBLY OF ITSELF MAY BE
INDIFFERENT AND UNAPPLICABLE TO SUCH AN INTENT."  1 HALE, HISTORY OF
THE PLEAS OF THE CROWN (EMLYN ED., LONDON, 1736), P. 115.  AND HE NOTED
THAT "IF THERE BE AN ASSEMBLING TOGETHER TO CONSIDER HOW THEY MAY KILL
THE KING, THIS ASSEMBLING IS AN OVERT-ACT TO MAKE GOOD AN INDICTMENT OF
COMPASSING THE KING'S DEATH."  ID., P. 119.  KELYING STATES THE SAME
VIEW.  HE CITES SIR EVERARD DIGBY'S CASE, 1 ST. TR. 234, FOR THE
PROPOSITION THAT THE MEETING OF PERSONS AND THEIR CONSULTING TO DESTROY
THE KING WAS ITSELF AN OVERT ACT.  "IT WAS RESOLVED THAT WHERE A PERSON
KNOWING OF THE DESIGN DOES MEET WITH THEM, AND HEAR THEM DISCOURSE OF
THEIR TRAITOROUS DESIGNS, AND SAY OR ACT NOTHING; THIS IS HIGH-TREASON
IN THAT PARTY, FOR IT IS MORE THAN A BARE CONCEALMENT, WHICH IS
MISPRISION, BECAUSE IT SHEWETH HIS LIKING AND APPROVING OF THEIR
DESIGN."  HE SAYS THAT IF A PERSON NOT KNOWING THEIR INTENT MET WITH
THEM, HEARD THEIR PLANS, BUT SAID NOTHING AND NEVER MET AGAIN, THAT
WOULD BE ONLY MISPRISION OF TREASON.  "BUT IF HE AFTER MEET WITH THEM
AGAIN, AND HEAR THEIR CONSULTATIONS, AND THEN CONCEAL IT, THIS IS HIGH
TREASON.  FOR IT SHEWETH A LIKING, AND AN APPROVING OF THEIR DESIGN." 
KELYING, A REPORT OF DIVERS CASES IN PLEAS OF THE CROWN (3D ED.,
LONDON, 1873), P.*  17.  AND SEE P.*  21. 

FOSTER IS EVEN MORE EXPLICIT.  LIKE COKE HE ASSERTS THAT AN OVERT ACT
IS REQUIRED FOR EACH BRANCH OF TREASON COVERED BY THE STATUTE OF EDWARD
III.  FOSTER, A REPORT OF SOME PROCEEDINGS ON THE COMMISSION FOR THE
TRIAL OF THE REBELS IN THE YEAR 1746 IN THE COUNTY OF SURRY, AND OF
OTHER CROWN CASES (2D ED., LONDON, 1791), PP. 207, 237.  HE MAKES CLEAR
THAT AN OVERT ACT IS REQUIRED NOT TO CORROBORATE THE PROOF OF A
TRAITOROUS INTENT BUT TO SHOW THAT THE TREASONABLE PROJECT HAS LEFT THE
REALM OF THOUGHT AND MOVED INTO THE REALM OF ACTION.  AS RESPECTS THE
OFFENSE OF COMPASSING THE DEATH OF THE KING, HE SAYS THAT THE
INDICTMENT "MUST CHARGE, THAT THE DEFENDANT DID TRAITOROUSLY COMPASS
AND IMAGINE &C, AND THEN GO ON AND CHARGE THE SEVERAL OVERT-ACTS AS THE
MEANS EMPLOYED BY THE DEFENDANT FOR EXECUTING HIS TRAITOROUS PURPOSES. 
FOR THE COMPASSING IS CONSIDERED AS THE TREASON, THE OVERT-ACTS AS THE
MEANS MADE USE OF TO EFFECTUATE THE INTENTIONS AND IMAGINATIONS OF THE
HEART."  ID., P. 194.  HE REFERS TO CROHAGAN'S CASE (CRO.  CAR.  332)
WHERE THE DEFENDANT SAID "I WILL KILL THE KING OF ENGLAND, IF I CAN
COME AT HIM" AND THE INDICTMENT ADDED THAT HE CAME TO ENGLAND FOR THAT
PURPOSE.  "THE TRAITOROUS INTENTION, PROVED BY HIS WORDS, CONVERTED AN
ACTION, INNOCENT IN ITSELF, INTO AN OVERT-ACT OF TREASON."  ID., P.
202.  AND HE ALSO POINTS OUT THAT "OVERT-ACTS UNDOUBTEDLY DO DISCOVER
THE MAN'S INTENTIONS; BUT, I CONCEIVE, THEY ARE NOT TO BE CONSIDERED
MERELY AS EVIDENCE, BUT AS THE MEANS MADE USE OF TO EFFECTUATE THE
PURPOSES OF THE HEART."  ID., P. 203.  AND HE ADDS, "UPON THIS
PRINCIPLE WORDS OF ADVICE OR ENCOURAGEMENT, AND, ABOVE ALL,
CONSULTATIONS FOR DESTROYING THE KING, VERY PROPERLY COME UNDER THE
NOTION OF MEANS MADE USE OF FOR THAT PURPOSE.  BUT LOOSE WORDS NOT
RELATIVE TO FACTS ARE, AT THE WORST, NO MORE THAN BARE INDICATIONS OF
THE MALIGNITY OF THE HEART."  ID., P. 204.  HE FOLLOWS KELYING IN
SAYING THAT ATTENDANCE AT A MEETING WITH PREVIOUS NOTICE OF THE DESIGN
TO PLOT THE DEATH OF THE KING OR A RETURN TO A MEETING AFTER KNOWLEDGE
IS GAINED OF ITS TREASONABLE PURPOSE IS TREASON, THOUGH BARE
CONCEALMENT WOULD NOT BE IF THE DEFENDANT MET THE CONSPIRATORS
"ACCIDENTALLY OR UPON SOME INDIFFERENT OCCASION."  ID., P. 195. 

IT IS TRUE THAT THESE OBSERVATIONS RELATED TO THE OFFENSE OF
COMPASSING OR IMAGINING THE DEATH OF THE KING.  BUT FOSTER INDICATES
THAT THE SAME TEST APPLIES TO MAKE OUT THE OFFENSE OF ADHERENCE TO THE
KING'S ENEMIES.  HE SAYS, "THE OFFENCE OF INCITING FOREIGNERS TO INVADE
THE KINGDOM IS A TREASON OF SIGNAL ENORMITY.  IN THE LOWEST ESTIMATION
OF THINGS AND IN ALL POSSIBLE EVENTS, IT IS AN ATTEMPT, ON THE PART OF
THE OFFENDER, TO RENDER HIS COUNTRY THE SEAT OF BLOOD AND DESOLATION." 
ID., PP. 196-197.  THIS WAS SAID IN CONNECTION WITH HIS DISCUSSION OF
LORD PRESTON'S CASE, 12 HOW.  ST. TR. 645, A LANDMARK IN THE LAW OF
TREASON.  LORD PRESTON WAS INDICTED BOTH FOR COMPASSING THE DEATH OF
THE KING AND FOR ADHERENCE TO HIS ENEMIES.  ENGLAND WAS AT WAR WITH
FRANCE.  THE INDICTMENT ALLEGED AS AN OVERT ACT OF TREASON THAT ON
DECEMBER 30, 1690, LORD PRESTON AND OTHERS HIRED A SMALL BOAT IN THE
COUNTY OF MIDDLESEX TO TAKE THEM TO ANOTHER VESSEL WHICH WOULD CARRY
THEM TO FRANCE.  THE INDICTMENT ALLEGED THAT THE DEFENDANTS WERE EN
ROUTE TO FRANCE TO COMMUNICATE MILITARY INFORMATION TO THE ENEMY. 
AFTER THE VESSEL SET SAIL FOR FRANCE AND WHEN THE VESSEL WAS IN THE
COUNTY OF KENT, THE DEFENDANTS WERE ARRESTED.  PAPERS CONTAINING
INFORMATION OF VALUE TO THE ENEMY WERE FOUND ON THE PERSON OF LORD
PRESTON'S SERVANT.  LORD PRESTON CONTENDED THAT SINCE THE INDICTMENT
LAID THE TREASON IN MIDDLESEX THERE WAS NO SHOWING THAT A LEGALLY
SUFFICIENT OVERT ACT OF TREASON HAD BEEN COMMITTED IN THAT COUNTY.  THE
COURT HELD, HOWEVER, THAT THE ACT OF BOARDING THE BOAT IN MIDDLESEX WAS
A SUFFICIENT OVERT ACT OF TREASON.  LORD CHIEF JUSTICE HOLT RULED, "NOW
THE QUESTION IS, WHETHER YOUR LORDSHIP HAD A DESIGN TO GO TO FRANCE
WITH THESE PAPERS?  IF YOU HAD, AND IF YOUR LORDSHIP DID GO ON SHIP
BOARD IN ORDER TO IT, YOUR TAKING BOAT IN MIDDLESEX IN ORDER TO GO ON
SHIP-BOARD, IS A FACT DONE IN THE COUNTY OF MIDDLESEX."  12 HOW.  ST.
TR., P. 728. 

FOSTER IN HIS ANALYSIS OF THAT CASE MAKES CLEAR THAT TAKING THE BOAT
WAS AN OVERT ACT SUFFICIENT NOT ONLY TO THE CRIME OF COMPASSING THE
DEATH OF THE KING BUT ALSO ADHERENCE TO THE ENEMIES OF THE KING. 
FOSTER, OP. CIT., PP. 197-198.  YET ON ITS FACE AND STANDING ALONE THE
OVERT ACT OF TAKING THE BOAT WAS COMPLETELY INNOCENT AND HARMLESS. 
ONLY WHEN IT WAS RELATED TO OTHER ACTIVITIES AND EVENTS DID IT ACQUIRE
A TREASONABLE SIGNIFICANCE.  FOSTER GIVES OTHER INDICATIONS THAT IN
CASE OF ADHERENCE TO THE ENEMY THE FUNCTION OF THE OVERT ACT IS NO
DIFFERENT THAN WHEN THE OFFENSE OF COMPASSING IS CHARGED.  THE CRIME OF
ADHERENCE IS MADE OUT WHERE THE DEFENDANT ATTEMPTS TO SEND MONEY,
PROVISIONS, OR INFORMATION TO THE ENEMY "THOUGH THE MONEY OR
INTELLIGENCE SHOULD HAPPEN TO BE INTERCEPTED.  FOR THE PARTY IN SENDING
DID ALL HE COULD:  THE TREASON WAS COMPLETE ON HIS PART, THOUGH IT HAD
NOT THE EFFECT HE INTENDED."  ID., P. 217. 

BLACKSTONE EMPHASIZES THE DESIRABILITY OF A RESTRICTIVE
INTERPRETATION OF THE OFFENSE OF TREASON, CONDEMNING "CONSTRUCTIVE"
TREASON AND "NEWFANGLED TREASONS" WHICH IMPERIL THE LIBERTY OF THE
PEOPLE.  4 BLACKSTONE, COMMENTARIES (6TH ED. DUBLIN 1775), PP. 75, 83,
85, 86.  BLACKSTONE RECOGNIZES THE DISTINCTION BETWEEN EVIDENCE OF
INTENT AND THE OVERT ACT:  "BUT, AS THIS COMPASSING OR IMAGINATION IS
AN ACT OF THE MIND, IT CANNOT POSSIBLY FALL UNDER ANY JUDICIAL
COGNIZANCE, UNLESS IT BE DEMONSTRATED BY SOME OPEN, OR OVERT, ACT.  AND
YET THE TYRANT DIONYSIUS IS RECORDED TO HAVE EXECUTED A SUBJECT, BARELY
FOR DREAMING THAT HE HAD KILLED HIM; WHICH WAS HELD FOR A SUFFICIENT
PROOF, THAT HE HAD THOUGHT THEREOF IN HIS WAKING HOURS.  BUT SUCH IS
NOT THE TEMPER OF THE ENGLISH LAW; AND THEREFORE, IN THIS, AND THE
THREE NEXT SPECIES OF TREASON, IT IS NECESSARY THAT THERE APPEAR AN
OPEN OR OVERT ACT OF A MORE FULL AND EXPLICIT NATURE, TO CONVICT THE
TRAITOR UPON."  ID., P. 79.  WHEN IT COMES TO THE OFFENSE OF ADHERENCE
TO THE ENEMY HE GIVES EXAMPLES OF ADEQUATE OVERT ACTS, SOME OF WHICH
MAY BE INNOCENT STANDING BY THEMSELVES.  "THIS MUST LIKEWISE BE PROVED
BY SOME OVERT ACT, AS BY GIVING THEM INTELLIGENCE, BY SENDING THEM
PROVISIONS, BY SELLING THEM ARMS, BY TREACHEROUSLY SURRENDERING A
FORTRESS, OR THE LIKE."  ID., PP. 82-83.  HIS ANALYSIS SUPPORTS THE
VIEWS OF FOSTER THAT THE FUNCTION OF THE OVERT ACT IS TO SHOW THAT THE
TRAITOROUS PROJECT HAS MOVED OUT OF THE REALM OF THOUGHT INTO THE REALM
OF ACTION. 

THE ENGLISH CASES PRIOR TO 1790 SUPPORT THIS THESIS.  WE HAVE
MENTIONED LORD PRESTON'S CASE.  IN THE CASE OF CAPTAIN VAUGHAN, 13
HOW.  ST. TR. 485, THE PRINCIPAL CHARGE AGAINST THE DEFENDANT WAS
ADHERING TO THE ENEMY, THOUGH LEVYING WAR WAS ALSO ALLEGED.  THE
SUBSTANCE OF THE OVERT ACT OF ADHERENCE WAS THAT WHEN FRANCE AND
ENGLAND WERE AT WAR THE DEFENDANT CRUISED IN A SMALL SHIP OF WAR, IN
ENGLISH WATERS, IN THE SERVICE OF FRANCE WITH INTENT TO TAKE THE KING'S
SHIPS.  IT WAS OBJECTED THAT THE OVERT ACT ALLEGED WAS INSUFFICIENT
"FOR IT IS SAID ONLY HE WENT A-CRUISING; WHEREAS THEY OUGHT TO HAVE
ALLEDGED THAT HE DID COMMIT SOME ACTS OF HOSTILITY, AND ATTEMPTED TO
TAKE SOME OF THE KING'S SHIPS; FOR CRUISING ALONE CANNOT BE AN OVERT
ACT; FOR HE MIGHT BE CRUISING TO SECURE THE FRENCH MERCHANT-SHIPS FROM
BEING TAKEN, OR FOR MANY OTHER PURPOSES, WHICH WILL NOT BE AN OVERT-ACT
OF TREASON."  P. 531.  BUT LORD CHIEF JUSTICE HOLT RULED:  "I BEG YOUR
PARDON.  SUPPOSE THE FRENCH KING, WITH FORCES, SHOULD COME TO DUNKIRK
WITH A DESIGN TO INVADE ENGLAND; IF ANY ONE SHOULD SEND HIM VICTUALS,
OR GIVE HIM INTELLIGENCE, OR BY ANY OTHER WAY CONTRIBUTE TO THEIR
ASSISTANCE, IT WOULD BE HIGH-TREASON IN ADHERING TO THE KING'S
ENEMIES."  P. 531.  AND LORD CHIEF JUSTICE TREBY ADDED:  "THE
INDICTMENT IS LAID FOR ADHERING TO, AND COMFORTING AND AIDING THE
KING'S ENEMIES.  YOU WOULD TAKE THAT TO BE CAPABLE TO BE CONSTRUED
ADHERING TO THE KING'S ENEMIES IN OTHER RESPECTS; BUT I TAKE IT TO BE A
REASONABLE CONSTRUCTION OF THE INDICTMENT, TO BE ADHERING TO THE KING'S
ENEMIES IN THEIR ENMITY.  WHAT IS THE DUTY OF EVERY SUBJECT?  IT IS TO
FIGHT WITH, SUBDUE, AND WEAKEN THE KING'S ENEMIES:  AND CONTRARY TO
THIS, IF HE CONFEDERATE WITH, AND STRENGTHEN THE KING'S ENEMIES, HE
EXPRESSLY CONTRADICTS THIS DUTY OF HIS ALLEGIANCE, AND IS GUILTY OF
THIS TREASON OF ADHERING TO THEM.  BUT THEN YOU SAY HERE IS NO AIDING
UNLESS THERE WERE SOMETHING DONE, SOME ACT OF HOSTILITY.  NOW HERE IS
GOING ABOARD WITH AN INTENTION TO DO SUCH ACTS; AND IS NOT THAT
COMFORTING AND AIDING?  CERTAINLY IT IS.  IS NOT THE FRENCH KING
COMFORTED AND AIDED, WHEN HE HAS GOT SO MANY ENGLISH SUBJECTS TO GO A
CRUISING UPON OUR SHIPS?"  PP. 532-533.  AND HE WENT ON TO SAY THAT
ACTS WHICH "GIVE THE ENEMY HEART AND COURAGE TO GO ON WITH THE WAR" ARE
ACTS OF ADHERENCE EVEN THOUGH THE WHOLE PROJECT WAS "AN UNPROSPEROUS
ATTEMPT."  P. 533.  HE EMPHASIZED THAT THE LACK OF SUCCESS WAS
IMMATERIAL, FOR "IF THEY HAVE SUCCESS ENOUGH, IT WILL BE TOO LATE TO
QUESTION THEM."  P. 533.  THIS IS PLAIN RECOGNITION NOT ONLY THAT THE
AID AND COMFORT MAY BE GIVEN THOUGH THE PROJECT IS THWARTED,  FN1  BUT
ALSO THAT AID AND COMFORT IS GIVEN WHEN THE ENEMY IS ENCOURAGED AND HIS
MORALE BOLSTERED AS WELL AS WHEN MATERIALS ARE FURNISHED.    THE CASE
OF FRANCIS DE LA MOTTE, 21 HOW.  ST. TR. 687, IS ALSO SOMEWHAT
ILLUMINATING.  THE INDICTMENT CHARGED COMPASSING AND ADHERING.  THE
OVERT ACTS INCLUDED WRITING AND CAUSING TO BE WRITTEN DOCUMENTS
CONVEYING INTELLIGENCE TO THE ENEMY, PROCURING A MESSENGER TO CARRY THE
DOCUMENTS, AND HIRING A PERSON TO GATHER AND TO SEND THE INTELLIGENCE. 
MR. JUSTICE BULLER IN HIS CHARGE TO THE JURY SAID:  "THE SENDING
INTELLIGENCE, OR COLLECTING INTELLIGENCE, FOR THE PURPOSE OF SENDING IT
TO AN ENEMY, TO ENABLE THEM TO ANNOY US OR TO DEFEND THEMSELVES, THOUGH
IT BE NEVER DELIVERED TO THE ENEMY; OR THE HIRING A PERSON FOR THAT
PURPOSE, IS AN OVERT ACT OF BOTH THE SPECIES OF TREASON WHICH I AM
STATING TO YOU FROM THIS INDICTMENT."  P. 808. 

THESE MATERIALS INDICATE THAT THE FUNCTION OF THE OVERT ACT WAS TO
MAKE CERTAIN THAT BEFORE A CONVICTION FOR THE HIGH CRIME OF TREASON MAY
BE HAD MORE THAN A TREASONABLE DESIGN MUST BE ESTABLISHED; IT MUST BE
SHOWN THAT ACTION PURSUANT TO THAT DESIGN HAS BEEN TAKEN.  THE TREASON
OF ADHERENCE WAS DEFINED ESSENTIALLY IN TERMS OF CONDUCT FOR IT
INVOLVED GIVING AID AND COMFORT.  YET THE ATTEMPT ALONE WAS SUFFICIENT;
THE AID AND COMFORT NEED NOT HAVE BEEN RECEIVED BY THE ENEMY.  CONDUCT
AMOUNTING TO AID AND COMFORT MIGHT BE INNOCENT BY ITSELF - SUCH AS
COLLECTING INFORMATION OR STEPPING INTO A BOAT.  IT WAS SUFFICIENT IF
IN ITS SETTING IT REFLECTED A TREASONABLE PROJECT.  IT NEED NOT ENTAIL
MATERIAL AID; COMFORT OR ENCOURAGEMENT WAS SUFFICIENT.  THE ONLY
REQUIREMENT WAS THAT IT DEFINITELY TRANSLATE TREASONABLE THOUGHT INTO
ACTION WHICH PLAINLY TENDED TO GIVE AID AND COMFORT TO THE ENEMY. 

THESE MATERIALS LIKEWISE SUPPORT THE CONTENTION OF THE GOVERNMENT
THAT THE OVERT ACT NEED NOT MANIFEST TREASON ON ITS FACE. 

THE HISTORY OF TREASON IN THIS COUNTRY DOWN TO THE CONSTITUTION HAS
BEEN RECENTLY DEVELOPED IN HURST, TREASON IN THE UNITED STATES, (1944)
58 HARV. L. REV. 226.  WE DO NOT STOP TO EXPLORE THAT FIELD.  BUT
PROFESSOR HURST'S RESEARCHES MAKE PLAIN THAT PRIOR TO THE REVOLUTION
THE INFLUENCE OF 25 EDW.  III WAS STRONG IN THE COLONIES AND THAT, IF
ANYTHING, THE SCOPE OF THE OFFENSE WAS SOMEWHAT BROADENED.  THE
REVOLUTION CHANGED MATTERS.  THE CONTINENTAL CONGRESS RECOMMENDED MORE
RESTRICTIVE LEGISLATION TO THE COLONIES WHICH LIMITED TREASON TO
LEVYING WAR AND ADHERING TO THE ENEMY, GIVING HIM AID AND COMFORT. 
ID., P. 247.  NO FORM OF TREASON BY COMPASSING WAS RETAINED.  ID., P.
252.  DISTRUST OF CONSTRUCTIVE TREASON WAS BEGINNING TO BE VOICED (ID.,
PP. 253, 254) THOUGH IN SOME COLONIES TREASON WAS SO BROADLY DEFINED AS
TO INCLUDE MERE UTTERANCES OF OPINIONS.  ID., PP. 266 ET SEQ. 

THE PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF 1787 HAVE BEEN
RELATED IN THE OPINION OF THE COURT.  AND SEE HURST, TREASON IN THE
UNITED STATES, 58 HARV. L. REV. 395.  AS THE COURT POINTS OUT THE
FRAMERS WERE ANXIOUS TO GUARD AGAINST CONVICTIONS OF THE INNOCENT BY
PERJURY AND TO REMOVE TREASON FROM THE REALM OF DOMESTIC, POLITICAL
DISPUTES.  FRANKLIN EXPRESSED CONCERN ON THE FIRST IN HIS STATEMENT
THAT "PROSECUTIONS FOR TREASON WERE GENERALLY VIRULENT; AND PERJURY TOO
EASILY MADE USE OF AGAINST INNOCENCE."  2 FARRAND, RECORDS OF THE
FEDERAL CONVENTION, P. 348.  MADISON AND JEFFERSON  FN2  BOTH EXPRESSED
DISTRUST OF TREASON FOR ITS LONG HISTORY OF ABUSE IN THE POLITICAL
FIELD.  MADISON SAID IN LANGUAGE SOMEWHAT REMINISCENT OF BLACKSTONE:
"AS TREASON MAY BE COMMITTED AGAINST THE UNITED STATES, THE AUTHORITY
OF THE UNITED STATES OUGHT TO BE ENABLED TO PUNISH IT.  BUT AS
NEWFANGLED AND ARTIFICIAL TREASONS HAVE BEEN THE GREAT ENGINES BY WHICH
VIOLENT FACTIONS, THE NATURAL OFFSPRING OF FREE GOVERNMENT, HAVE
USUALLY WREAKED THEIR ALTERNATE MALIGNITY ON EACH OTHER, THE CONVENTION
HAVE, WITH GREAT JUDGMENT, OPPOSED A BARRIER TO THIS PECULIAR DANGER,
BY INSERTING A CONSTITUTIONAL DEFINITION OF THE CRIME, FIXING THE PROOF
NECESSARY FOR CONVICTION OF IT, AND RESTRAINING THE CONGRESS, EVEN IN
PUNISHING IT, FROM EXTENDING THE CONSEQUENCES OF GUILT BEYOND THE
PERSON OF ITS AUTHOR."  THE FEDERALIST, NO. XLIII. 

THE REQUIREMENT OF TWO WITNESSES WAS NOT NOVEL.  ENGLAND HAD LONG HAD
THAT RULE.  9 HOLDSWORTH, A HISTORY OF ENGLISH LAW (2D ED. 1938) P.
207.  THE NOVELTY WAS IN THE REQUIREMENT THAT THERE BE TWO WITNESSES TO
THE "SAME" OVERT ACT.  MOREOVER, THERE WAS NO NOVELTY IN THE OFFENSES
WHICH WERE INCLUDED IN THE DEFINITION OF TREASON.  ADHERING TO THE
ENEMY, GIVING HIM AID AND COMFORT, LIKE LEVYING WAR, HAD LONG BEEN
EMBRACED IN THE ENGLISH CRIME OF TREASON, AS WE HAVE SEEN.  BUT THERE
WAS NOVELTY IN THE NARROW DEFINITION OF TREASON WHICH WAS ADOPTED - A
RESTRICTIVE DEFINITION BORN OF THE FEAR OF CONSTRUCTIVE TREASON AND
DISTRUST OF TREASON AS A POLITICAL INSTRUMENT. 

THERE IS, HOWEVER, NO EVIDENCE WHATEVER THAT THE OFFENSE OF ADHERING
TO THE ENEMY GIVING HIM AID AND COMFORT WAS DESIGNED TO ENCOMPASS A
NARROWER FIELD THAN THAT INDICATED BY ITS ACCEPTED AND SETTLED
MEANING.  NOR IS THERE THE SLIGHTEST INDICATION THAT THE KIND OR
CHARACTER OF OVERT ACTS REQUIRED WERE ANY DIFFERENT THAN THOSE WHICH
HAD LONG BEEN RECOGNIZED OR ACCEPTED AS ADEQUATE.  THE OVERT ACT WAS OF
COURSE "INTENDED AS A DISTINCT ELEMENT OF PROOF OF THE OFFENSE IN
ADDITION TO INTENT."  HURST, OP. CIT., PP. 415-416.  BUT ANY SUGGESTED
DIFFERENCE FROM THE BODY OF LAW WHICH PRECEDED VANISHES WHEN TWO
WITNESSES TO THE SAME OVERT ACT ARE PRODUCED.  AS RESPECTS THE POINT
VITAL FOR OUR DECISION IT IS THEREFORE QUITE INACCURATE FOR THE COURT
TO CONCLUDE THAT OUR TREASON CLAUSE "TAUGHT A CONCEPT THAT DIFFERED
FROM ALL HISTORICAL MODELS."  THAT WOULD BE TRUE ONLY IF THERE WAS A
PURPOSE TO DEPART FROM THE CONCEPT OF ADHERING TO THE ENEMY OR THE
CONCEPT OF OVERT ACTS WHICH HAD BECOME INGRAINED IN THE ANTECEDENT
ENGLISH LAW.  WE FIND NO SUCH PURPOSE. 

FN1  ACCORD:  WILLIAM GREGG, 14 HOW.  ST. TR. 1371; TRIAL OF DR.
HENSEY, 19 HOW.  ST. TR. 1341.  BOTH OF THESE INVOLVED INDICTMENTS FOR
COMPASSING AND ADHERING, THE OVERT ACTS BEING LETTERS OF INTELLIGENCE
INTERCEPTED BEFORE THEY REACHED THE ENEMY. 

FN2  IN A LETTER OF APRIL 24, 1792, JEFFERSON, THEN SECRETARY OF
STATE, WROTE:  "TREASON,  ... WHEN REAL, MERITS THE HIGHEST
PUNISHMENT.  BUT MOST CODES EXTEND THEIR DEFINITIONS OF TREASON TO ACTS
NOT REALLY AGAINST ONE'S COUNTRY.  THEY DO NOT DISTINGUISH BETWEEN ACTS
AGAINST THE GOVERNMENT AND ACTS AGAINST THE OPPRESSIONS OF THE
GOVERNMENT; THE LATTER ARE VIRTUES; YET THEY HAVE FURNISHED MORE
VICTIMS TO THE EXECUTIONER THAN THE FORMER; BECAUSE REAL TREASONS ARE
RARE; OPPRESSIONS FREQUENT.  THE UNSUCCESSFUL STRUGGLERS AGAINST
TYRANNY, HAVE BEEN THE CHIEF MARTYRS OF TREASON LAWS IN ALL
COUNTRIES."  SEE 8 WRITINGS OF THOMAS JEFFERSON (LIBRARY ED. WASH.
1903) P. 332. 
..END :







HERB V. PITCAIRN, 325 U.S. 77 


DECIDED APRIL 23, 1945.  - 384 ILL. 237, 281-51 N.E.2D 277, 282,
REVERSED. 


FOR PURPOSES OF THE FEDERAL EMPLOYERS' LIABILITY ACT, WHICH PROVIDES
THAT "NO ACTION SHALL BE MAINTAINED UNDER THIS CHAPTER UNLESS COMMENCED
WITHIN TWO YEARS FROM THE DAY THE CAUSE OF ACTION ACCRUED," AN ACTION
IS "COMMENCED" WHEN INSTITUTED BY SERVICE OF PROCESS ISSUED OUT OF A
STATE COURT WHICH IS ITSELF UNABLE TO PROCEED TO JUDGMENT BUT WHICH BY
THE STATE LAW OR PRACTICE IS DIRECTED OR PERMITTED TO TRANSFER THE
PROCEEDING, BY CHANGE OF VENUE OR OTHERWISE, TO A COURT WHICH DOES HAVE
JURISDICTION TO HEAR AND DETERMINE THE CAUSE.  P. 78. 

HERB V. PITCAIRN ET AL., RECEIVERS FOR WABASH RAILWAY CO. 

NO. 24.  CERTIORARI TO THE SUPREME COURT OF ILLINOIS.* 

*TOGETHER WITH NO. 25, BELCHER V. LOUISVILLE & NASHVILLE RAILROAD
CO., ALSO ON CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

CERTIORARI, 321 U.S. 759, TO REVIEW JUDGMENTS AFFIRMING DISMISSALS OF
TWO SUITS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  AN EARLIER
OPINION OF THIS COURT IN THIS CASE IS REPORTED IN 324 U.S. 117. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THESE CASES WERE HERETOFORE CONSIDERED AND DISPOSITION WAS DEFERRED
TO ENABLE PETITIONERS TO APPLY FOR CLARIFICATION OF THE GROUNDS UPON
WHICH THE SUPREME COURT OF ILLINOIS INTENDED TO REST ITS JUDGMENTS. 
HERB V. PITCAIRN, 324 U.S. 117. 

THAT COURT, RESPONDING TO PETITIONERS' REQUEST, HAS MADE CLEAR THAT
ITS JUDGMENT RESULTED SOLELY FROM ITS INTERPRETATION OF A FEDERAL
STATUTE OF LIMITATIONS APPLICABLE TO ACTIONS UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT WHICH PROVIDED:  "NO ACTION SHALL BE
MAINTAINED UNDER THIS CHAPTER UNLESS COMMENCED WITHIN TWO YEARS FROM
THE DAY THE CAUSE OF ACTION ACCRUED."  35 STAT. 66, 45 U.S.C. 56;
AMENDED TO THREE YEARS, AUGUST 11, 1939, 53 STAT. 1404.  THAT COURT
SAID (MARCH 21, 1945) THAT IT "DID NOT PASS UPON ANY OF THE QUESTIONS
CERTIFIED EXCEPT TO APPLY THE LIMITATION OF TWO YEARS FIXED IN THE LAST
MENTIONED STATUTE AFTER DECIDING WHETHER SAID CAUSE HAD BEEN COMMENCED
WHEN IT WAS FILED IN THE CITY COURT OF GRANITE CITY, ILLINOIS."  AND IT
ADDED: "WE OBSERVED THAT SECTION 6 OF THE FEDERAL EMPLOYERS' LIABILITY
ACT REQUIRED THE PLAINTIFF TO COMMENCE AN ACTION WITHIN TWO YEARS FROM
THE DATE OF THE INJURY; THAT THE CITY COURT OF GRANITE CITY HAD NO
JURISDICTION OF THE CAUSE FOR THE REASONS SET FORTH IN THE OPINION, AND
THAT, UNDER ILLINOIS LAW, COMMENCING AN ACTION MEANS STARTING IT IN A
COURT THAT HAS THE POWER TO DECIDE THE MATTER INVOLVED, TO ISSUE
PROCESS, TO BRING THE PARTIES TO THE PARTICULAR CAUSE BEFORE IT AND TO
RENDER AND ENFORCE A JUDGMENT ON THE MERITS OF SAID CAUSE." 

WE ARE UNABLE TO AGREE TO AN INTERPRETATION OF THE FEDERAL STATUTE BY
WHICH A CASE IS NOT "COMMENCED" FOR ITS PURPOSES UNLESS INSTITUTED IN A
COURT WITH POWER TO PROCEED TO FINAL JUDGMENT.  AN ACTION IS
"COMMENCED" FOR THESE PURPOSES AS A MATTER OF FEDERAL LAW WHEN
INSTITUTED BY SERVICE OF PROCESS ISSUED OUT OF A STATE COURT, EVEN IF
ONE WHICH ITSELF IS UNABLE TO PROCEED TO JUDGMENT, IF THE STATE LAW OR
PRACTICE DIRECTS OR PERMITS THE TRANSFER THROUGH CHANGE OF VENUE OR
OTHERWISE TO A COURT WHICH DOES HAVE JURISDICTION TO HEAR, TRY, AND
OTHERWISE DETERMINE THAT CAUSE.  WHETHER THE ACTION WOULD BE BARRED IF
STATE LAW MADE NEW OR SUPPLEMENTAL PROCESS NECESSARY IS A QUESTION NOT
INVOLVED HERE AND NOT DECIDED.  CLEARLY, HOWEVER, WHEN PROCESS HAS BEEN
ADEQUATE TO BRING IN THE PARTIES AND TO START THE CASE ON A COURSE OF
JUDICIAL HANDLING WHICH MAY LEAD TO FINAL JUDGMENT WITHOUT ISSUANCE OF
NEW INITIAL PROCESS, IT IS ENOUGH TO COMMENCE THE ACTION WITHIN THE
FEDERAL STATUTE.  AS THESE CASES WERE DISMISSED SOLELY BECAUSE OF A
CONTRARY VIEW, THE JUDGMENTS ARE REVERSED AND THE CAUSES REMANDED TO
THE SUPREME COURT OF ILLINOIS FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH OUR OPINIONS HEREIN. 
..END :



HOOVEN & ALLISON CO. V. EVATT, 324 U.S. 652 


NO. 38.  ARGUED NOVEMBER 7, 8, 1944.  - DECIDED APRIL 9, 1945.  - 142
OHIO ST. 235, 51 N.E.2D 723, REVERSED. 


1.  WHERE, UPON REVIEW HERE OF STATE COURT DECISIONS, THE EXISTENCE OF
AN ASSERTED FEDERAL RIGHT OR IMMUNITY DEPENDS UPON THE APPRAISAL OF
UNDISPUTED FACTS OF RECORD, OR WHERE REFERENCE TO THE FACTS IS
NECESSARY TO THE DETERMINATION OF THE PRECISE MEANING OF THE FEDERAL
RIGHT OR IMMUNITY, AS APPLIED, THIS COURT IS FREE TO REEXAMINE THE
FACTS AS WELL AS THE LAW IN ORDER TO DETERMINE FOR ITSELF WHETHER THE
ASSERTED RIGHT OR IMMUNITY IS TO BE SUSTAINED.  P. 659. 

2.  SINCE IT APPEARS ON CONSIDERATION OF PETITIONER'S COURSE OF
BUSINESS AND OF THE CIRCUMSTANCES ATTENDING THE IMPORTATION THAT
PETITIONER WAS THE INDUCING AND EFFICIENT CAUSE OF BRINGING THE FIBERS
INTO THE COUNTRY, WHICH IS IMPORTATION, PETITIONER, NOT THE FOREIGN
SELLERS OR THE AGENTS, WAS THE IMPORTER OF FIBERS BROUGHT FROM THE
PHILIPPINE ISLANDS AND OTHER PLACES OUTSIDE THE UNITED STATES, AND THE
CONSTITUTIONAL IMMUNITY FROM STATE TAXATION OF THE IMPORTED FIBERS
SURVIVED THEIR DELIVERY TO PETITIONER.  PP. 659, 664. 

3.  FOR THE PURPOSE OF DETERMINING WHETHER PETITIONER WAS THE
IMPORTER IN THE CONSTITUTIONAL SENSE, IT IS IMMATERIAL WHETHER TITLE TO
THE MERCHANDISE VESTED IN THE PETITIONER AT THE TIME OF SHIPMENT OR
ONLY AFTER ITS ARRIVAL IN THIS COUNTRY.  P. 662. 

4. WHEN MERCHANDISE IS BROUGHT HERE FROM ANOTHER COUNTRY, THE EXTENT
OF ITS IMMUNITY FROM STATE TAXATION TURNS ON THE ESSENTIAL NATURE OF
THE TRANSACTION, CONSIDERED IN THE LIGHT OF THE CONSTITUTIONAL PURPOSE,
AND NOT ON THE FORMALITIES WITH WHICH THE IMPORTATION IS CONDUCTED OR
ON THE TECHNICAL PROCEDURES BY WHICH IT IS EFFECTED.  P. 663. 

5.  THE PURPOSE OF THE CONSTITUTIONAL PROHIBITION OF STATE TAXES ON
IMPORTS IS TO PROTECT THE EXCLUSIVE POWER OF THE NATIONAL GOVERNMENT TO
TAX IMPORTS AND TO PREVENT WHAT IN MATTER OF SUBSTANCE WOULD AMOUNT TO
THE IMPOSITION OF ADDITIONAL IMPORT DUTIES BY STATES IN WHICH THE
PROPERTY MIGHT BE FOUND OR STORED BEFORE ITS SALE OR USE.  P. 664. 

6.  THE CONSTITUTIONAL IMMUNITY OF THE IMPORTS FROM STATE TAXATION
WAS NOT LOST BY THEIR STORAGE (IN THE ORIGINAL PACKAGES) IN WAREHOUSES
AT PETITIONER'S FACTORY, PENDING THEIR USE IN PETITIONER'S
MANUFACTURING OPERATIONS FOR WHICH THEY WERE IMPORTED.  PP. 664, 668. 

7.  FOR THE PURPOSE OF THE CONSTITUTIONAL IMMUNITY, IT IS IMMATERIAL
WHETHER THE IMPORTED MERCHANDISE IS STORED (IN THE ORIGINAL PACKAGES)
IN THE IMPORTER'S WAREHOUSE AT THE PORT OF ENTRY OR IN AN INTERIOR
STATE.  P. 664. 

8.  UPON THE RECORD IN THIS CASE, THERE IS NO REASON TO CONSIDER
WHETHER, FOR PURPOSES OF THE CONSTITUTIONAL IMMUNITY, THE MERE PRESENCE
OF SOME FIBERS IN THE FACTORY WAS SO ESSENTIAL TO CURRENT MANUFACTURING
REQUIREMENTS THAT THEY COULD BE SAID TO HAVE ENTERED THE PROCESS OF
MANUFACTURE, AND HENCE WERE ALREADY PUT TO THE USE FOR WHICH THEY WERE
IMPORTED.  P. 667. 

9.  SUCH DISCRIMINATIONS AS THERE MAY BE AGAINST DOMESTIC AND IN
FAVOR OF FOREIGN PRODUCERS OF GOODS IN THIS SITUATION ARE IMPLICIT IN
THE CONSTITUTIONAL PROVISION AND IN ITS PURPOSE TO PROTECT IMPORTS FROM
STATE TAXATION.  P. 667. 

10.  THE DIFFICULTY OF ASCERTAINING IN PARTICULAR CASES WHEN AN
ORIGINAL PACKAGE IS BROKEN ARISES OUT OF THE ORIGINAL PACKAGE RULE
ITSELF.  P. 668. 

11.  RECONCILIATION OF THE COMPETING DEMANDS OF THE CONSTITUTIONAL
IMMUNITY OF IMPORTS AND OF THE STATE'S POWER TO TAX IS AN EXTREMELY
PRACTICAL MATTER.  P. 668. 

12.  IN VIEW OF THE CONSTITUTIONAL AUTHORITY OF CONGRESS TO CONSENT
TO STATE TAXATION OF IMPORTS AND HENCE TO LAY DOWN ITS OWN TEST FOR
DETERMINING WHEN THE IMMUNITY ENDS, THERE IS NO CONVINCING PRACTICAL
REASON FOR ABANDONING THE ORIGINAL PACKAGE RULE, OR, IF IT IS TO BE
RETAINED IN THE CASE OF IMPORTS FOR SALE, FOR REJECTING IT IN THE CASE
OF IMPORTS FOR MANUFACTURE.  P. 668. 

13.  ARTICLES BROUGHT FROM THE PHILIPPINE ISLANDS INTO THE UNITED
STATES ARE IMPORTS SUBJECT TO THE CONSTITUTIONAL PROVISIONS RELATING TO
IMPORTS, - BOTH BECAUSE THEY ARE BROUGHT INTO THE UNITED STATES AND
BECAUSE THE PLACE WHENCE THEY ARE BROUGHT IS NOT A PART OF THE UNITED
STATES IN THE CONSTITUTIONAL SENSE TO WHICH THE PROVISIONS WITH RESPECT
TO IMPORTS ARE APPLICABLE.  PP. 668, 679. 

HOOVEN & ALLISON CO. V. EVATT, TAX COMMISSIONER OF OHIO. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

CERTIORARI, 321 U.S. 762, TO REVIEW A JUDGMENT SUSTAINING AN
ASSESSMENT OF STATE TAXES. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, A TAX OFFICIAL OF THE STATE OF OHIO, HAS ASSESSED FOR
STATE AD VALOREM TAXES CERTAIN BALES OF HEMP AND OTHER FIBERS BELONGING
TO PETITIONER.  THE FIBERS HAD BEEN BROUGHT FROM THE PHILIPPINE ISLANDS
OR FROM OTHER PLACES OUTSIDE THE UNITED STATES.  WHEN ASSESSED FOR THE
TAX, THEY WERE STORED IN THE ORIGINAL PACKAGES IN WHICH THEY HAD BEEN
IMPORTED, IN PETITIONER'S WAREHOUSE AT ITS FACTORY AT XENIA, OHIO,
PRELIMINARY TO THEIR USE BY PETITIONER IN THE MANUFACTURE OF CORDAGE
AND SIMILAR PRODUCTS. 

THE STATE BOARD OF TAX APPEALS SUSTAINED THE ASSESSMENT FOR THE THREE
YEARS IN QUESTION, 1938, 1939, AND 1940.  PETITIONER THEN BROUGHT THE
PRESENT PROCEEDING IN THE SUPREME COURT OF OHIO TO REVIEW THE BOARD'S
DETERMINATION.  THAT COURT REJECTED PETITIONER'S CONTENTION THAT THE
FIBERS ARE IMPORTS, IMMUNE FROM STATE TAXATION UNDER ARTICLE I, SEC.
10, CL. 2, OF THE CONSTITUTION, WHICH PROHIBITS STATE TAXATION OF
IMPORTS OR EXPORTS; AND IT SUSTAINED THE TAX.  142 OHIO ST. 235, 51
N.E.2D 723. 

THE STATE COURT RECOGNIZED THAT BROWN V. MARYLAND, 12 WHEAT.  419,
ESTABLISHED THE RULE THAT IMPORTS IN THEIR ORIGINAL PACKAGES MAY NOT BE
TAXED BY A STATE.  BUT IT THOUGHT THAT THE PRESENT CASE FELL WITHIN THE
QUALIFICATION UPON THAT RULE LAID DOWN IN WARING V. THE MAYOR, 8 WALL. 
110.  THE WARING CASE HELD THAT SINCE A PURPOSE OF IMPORTATION IS SALE,
IMPORTS ARE IMMUNE FROM STATE TAXATION ONLY SO LONG AS THEY ARE IN THE
HANDS OF THE IMPORTER, AND LOSE THEIR IMMUNITY UPON BEING SOLD BY HIM. 
THE SUPREME COURT OF OHIO HELD THAT PETITIONER ACQUIRED TITLE TO THE
MERCHANDISE HERE TAXED AFTER ITS ARRIVAL IN THIS COUNTRY.  IT CONCLUDED
FROM THIS THAT THE FOREIGN SELLERS OR THEIR AGENTS, AND NOT PETITIONER,
WERE THE IMPORTERS, AND THAT THE MERCHANDISE, AFTER THE SALE TO
PETITIONER, HAD CEASED TO BE AN IMPORT CONSTITUTIONALLY IMMUNE FROM
STATE TAXATION. 

IN ANY CASE, THE OHIO COURT THOUGHT THAT EVEN IF PETITIONER WERE THE
IMPORTER AND THE MERCHANDISE WERE IMMUNE FROM TAXATION ON ITS RECEIPT
BY PETITIONER, IT NEVERTHELESS CEASED TO BE AN IMPORT, AND LOST ITS
IMMUNITY AS SUCH, UPON ITS STORAGE AT PETITIONER'S WAREHOUSE, AWAITING
ITS USE IN MANUFACTURING.  THE COURT THOUGHT THAT BROWN V. MARYLAND,
SUPRA, LAID DOWN A RULE APPLICABLE ONLY TO IMPORTS FOR THE PURPOSE OF
SALE, AND THAT IMPORTS FOR USE BECAME, UPON STORAGE, EVEN IF STILL IN
THE ORIGINAL PACKAGE, SO INTERMINGLED WITH THE COMMON MASS OF PROPERTY
WITHIN THE STATE AS TO BE SUBJECT TO THE STATE POWER OF TAXATION.  FN1
THE COURT FOUND IT UNNECESSARY TO DECIDE WHETHER THE FIBERS BROUGHT
FROM THE PHILIPPINE ISLANDS, WHICH ARE NOT A FOREIGN COUNTRY, COULD BE
IMPORTS WITHIN THE MEANING OF THE CONSTITUTIONAL IMMUNITY, SINCE THEY
WOULD BE TAXABLE IN ANY EVENT UPON THE TWO GROUNDS ALREADY STATED. 

WE GRANTED CERTIORARI, 321 U.S. 762, BECAUSE OF THE NOVELTY AND
IMPORTANCE OF THE CONSTITUTIONAL QUESTIONS RAISED.  THE QUESTIONS FOR
DECISION ARE (1) WHETHER, WITH RESPECT TO THE FIBERS BROUGHT FROM
FOREIGN COUNTRIES, PETITIONER WAS THEIR IMPORTER; IF SO, (2) WHETHER,
AS STORED IN PETITIONER'S WAREHOUSE, THEY CONTINUED TO BE IMPORTS AT
THE TIME OF THE TAX ASSESSMENT; AND (3) WHETHER THE FIBERS BROUGHT FROM
THE PHILIPPINE ISLANDS, DESPITE THE PLACE OF THEIR ORIGIN, ARE LIKEWISE
IMPORTS RENDERED IMMUNE FROM TAXATION BY THE CONSTITUTIONAL PROVISION. 

THE CONSTITUTION CONFERS ON CONGRESS THE POWER TO LAY AND COLLECT
IMPORT DUTIES, ART. I, SEC. 8, AND PROVIDES THAT "NO STATE SHALL,
WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY IMPOSTS OR DUTIES ON
IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR
EXECUTING IT'S INSPECTION LAWS ..."  ART. I, SEC. 10, CL. 2.  THESE
PROVISIONS WERE INTENDED TO CONFER ON THE NATIONAL GOVERNMENT THE
EXCLUSIVE POWER TO TAX IMPORTATIONS OF GOODS INTO THE UNITED STATES. 
THAT THE CONSTITUTIONAL PROHIBITION NECESSARILY EXTENDS TO STATE
TAXATION OF THINGS IMPORTED, AFTER THEIR ARRIVAL HERE AND SO LONG AS
THEY REMAIN IMPORTS, SUFFICIENTLY APPEARS FROM THE LANGUAGE OF THE
CONSTITUTIONAL PROVISION ITSELF AND ITS EXPOSITION BY CHIEF JUSTICE
MARSHALL IN BROWN V. MARYLAND, SUPRA.  WE DO NOT UNDERSTAND ANYONE TO
CHALLENGE THAT RULE IN THIS CASE. 

IT IS OBVIOUS THAT IF THE STATES WERE LEFT FREE TO TAX THINGS
IMPORTED AFTER THEY ARE INTRODUCED INTO THE COUNTRY AND BEFORE THEY ARE
DEVOTED TO THE USE FOR WHICH THEY ARE IMPORTED, THE PURPOSE OF THE
CONSTITUTIONAL PROHIBITION WOULD BE DEFEATED.  THE FEARS OF THE
FRAMERS, THAT IMPORTATION COULD BE SUBJECTED TO THE BURDEN OF UNEQUAL
LOCAL TAXATION BY THE SEABOARD, AT THE EXPENSE OF THE INTERIOR STATES,
WOULD BE REALIZED, AS EFFECTIVELY AS THOUGH THE STATES HAD BEEN
AUTHORIZED TO LAY IMPORT DUTIES.  FN2  IT IS EVIDENT, TOO, THAT IF THE
TAX IMMUNITY OF IMPORTS, COMMANDED BY THE CONSTITUTION, IS TO BE
RECONCILED WITH THE RIGHT OF THE STATES TO TAX GOODS AFTER THEIR
IMPORTATION HAS BECOME COMPLETE AND THEY HAVE BECOME A PART OF THE
COMMON MASS OF PROPERTY WITHIN A STATE, "THERE MUST BE A POINT OF TIME
WHEN THE PROHIBITION CEASES, AND THE POWER OF THE STATE TO TAX
COMMENCES."  BROWN V. MARYLAND, SUPRA, 441. 

IN BROWN V. MARYLAND, SUPRA, THE STATE SOUGHT TO IMPOSE A LICENSE TAX
ON THE SALE BY THE IMPORTER OF GOODS STORED IN HIS WAREHOUSE IN THE
ORIGINAL PACKAGES IN WHICH THEY WERE IMPORTED.  IN HOLDING THE LEVY TO
BE A PROHIBITED TAX ON IMPORTS, CHIEF JUSTICE MARSHALL SAID (PP. 441
442): 

"IT IS SUFFICIENT FOR THE PRESENT TO SAY, GENERALLY, THAT WHEN THE
IMPORTER HAS SO ACTED UPON THE THING IMPORTED, THAT IT HAS BECOME
INCORPORATED AND MIXED UP WITH THE MASS OF PROPERTY IN THE COUNTRY, IT
HAS, PERHAPS, LOST ITS DISTINCTIVE CHARACTER AS AN IMPORT, AND HAS
BECOME SUBJECT TO THE TAXING POWER OF THE STATE; BUT WHILE REMAINING
THE PROPERTY OF THE IMPORTER, IN HIS WAREHOUSE, IN THE ORIGINAL FORM OR
PACKAGE IN WHICH IT WAS IMPORTED, A TAX UPON IT IS TOO PLAINLY A DUTY
ON IMPORTS, TO ESCAPE THE PROHIBITION IN THE CONSTITUTION." 

ALTHOUGH ONE JUSTICE DISSENTED IN BROWN V. MARYLAND, SUPRA, FROM THAT
DAY TO THIS, THIS COURT HAS HELD, WITHOUT A DISSENTING VOICE, THAT
THINGS IMPORTED ARE IMPORTS ENTITLED TO THE IMMUNITY CONFERRED BY THE
CONSTITUTION; THAT THAT IMMUNITY SURVIVES THEIR ARRIVAL IN THIS COUNTRY
AND CONTINUES UNTIL THEY ARE SOLD, REMOVED FROM THE ORIGINAL PACKAGE,
OR PUT TO THE USE FOR WHICH THEY ARE IMPORTED.  WARING V. THE MAYOR,
SUPRA, 122-123; LOW V. AUSTIN, 13 WALL.  29, 32-33; COOK V.
PENNSYLVANIA, 97 U.S. 566, 573; MAY V. NEW ORLEANS, 178 U.S. 496, 501,
507-508; BURKE V. WELLS, 208 U.S. 14, 21-22, 24; GULF FISHERIES CO. V.
MACINERNEY, 276 U.S. 124, 126-127; MCGOLDRICK V. GULF OIL CORP., 309
U.S. 414, 423. 

ALL THE TAXED FIBERS, WITH THE EXCEPTION OF THOSE BROUGHT FROM THE
PHILIPPINE ISLANDS, WHICH WILL PRESENTLY BE SEPARATELY CONSIDERED, WERE
BROUGHT TO THIS COUNTRY FROM FOREIGN LANDS AND WERE UNDOUBTEDLY
IMPORTS, CLOTHED AS SUCH WITH A TAX IMMUNITY WHICH SURVIVED THEIR
IMPORTATION, UNTIL THE HAPPENING OF SOME EVENT SUFFICIENT TO ALTER
THEIR CHARACTER AS IMPORTS.  AS WE HAVE SAID, THE SUPREME COURT OF OHIO
FOUND SUCH EVENTS IN WHAT IT DEEMED TO BE A SALE OF THE MERCHANDISE TO
PETITIONER AFTER IT HAD BEEN LANDED IN THE UNITED STATES, AND IN THE
FURTHER CIRCUMSTANCE THAT BY STORING THE MERCHANDISE IN THE WAREHOUSE
AT PETITIONER'S FACTORY, IT HAD BECOME A PART OF THE COMMON MASS OF
PROPERTY SUBJECT TO STATE TAXATION AND SO COULD NO LONGER BE REGARDED
AS AN IMPORT. 

RESOLUTION OF EITHER POINT IN FAVOR OF RESPONDENT IS DECISIVE OF THE
CASE.  HENCE WE MUST FIRST CONSIDER WHETHER PETITIONER, RATHER THAN THE
FOREIGN PRODUCERS OR SHIPPERS ACTING THROUGH THEIR AMERICAN AGENTS, WAS
THE IMPORTER.  IF SO, THE TAX IMMUNITY OF THE IMPORTED MERCHANDISE
SURVIVED ITS RECEIPT BY PETITIONER AND WE MUST DETERMINE THE FURTHER
QUESTION WHETHER PETITIONER'S SUBSEQUENT TREATMENT OF THE MERCHANDISE
DEPRIVED IT OF ITS CHARACTER, AND HENCE ITS IMMUNITY, AS AN IMPORT. 

                    I 

PETITIONER'S RELATIONSHIP TO THE MERCHANDISE AT THE TIME OF
IMPORTATION AND AFTERWARD IS OF SIGNIFICANCE ONLY IN DETERMINING
WHETHER, AS THE STATE COURT HAS FOUND, THE RELATIONSHIP WAS SO ALTERED
AFTER IMPORTATION THAT IT CAN BE SAID THAT THE PURPOSE OF THE
IMPORTATION HAD BEEN FULFILLED.  IF IT HAD, THERE WAS NO LONGER EITHER
OCCASION OR REASON FOR THE FURTHER SURVIVAL OF THE IMMUNITY FROM
TAXATION.  THAT RELATIONSHIP IS TO BE ASCERTAINED BY REFERENCE TO ALL
THE CIRCUMSTANCES ATTENDING THE IMPORTATION, PARTICULARLY AS SHOWN BY
THE LONG ESTABLISHED COURSE OF BUSINESS BY WHICH PETITIONER'S SUPPLY OF
FIBERS HAS BEEN BROUGHT INTO THE COUNTRY FOR USE IN MANUFACTURING ITS
FINISHED PRODUCT. 

THE STATE INTRODUCED NO EVIDENCE, AND THERE IS NO DISPUTE IN POINT OF
SUBSTANCE AS TO PETITIONER'S EVIDENCE.  THE LATTER CONSISTS OF THE ORAL
TESTIMONY OF PETITIONER'S GENERAL MANAGER, SOME EXAMPLES OF THE
CONTRACTS BY WHICH PETITIONER PROCURED THE MERCHANDISE TO BE BROUGHT TO
THIS COUNTRY, AND TWO STIPULATIONS CONTAINING STATEMENTS, ADMITTED TO
BE TRUE, WHICH WERE MADE BY THE AMERICAN AGENTS OF THE PRODUCERS AND
SHIPPERS OF THE MERCHANDISE. 

BOTH THE BOARD OF TAX APPEALS AND THE STATE COURT, WITHOUT SPECIALLY
FINDING SOME OF THE FACTS WHICH WE REGARD AS OF CONTROLLING
SIGNIFICANCE, CONTENTED THEMSELVES WITH STATING THE FACTS GENERALLY. 
THEY INFERRED FROM THESE FACTS THAT PETITIONER TECHNICALLY WAS BUT A
PURCHASER OF THE MERCHANDISE, AFTER IT HAD BEEN IMPORTED INTO THIS
COUNTRY.  THEY CONCLUDED THAT PETITIONER WAS NOT THE IMPORTER, AND THE
FIBERS HAD CEASED TO BE IMPORTS AFTER THE SALE TO PETITIONER. 

IN ALL CASES COMING TO US FROM A STATE COURT, WE PAY GREAT DEFERENCE
TO ITS DETERMINATIONS OF FACT.  BUT WHEN THE EXISTENCE OF AN ASSERTED
FEDERAL RIGHT OR IMMUNITY DEPENDS UPON THE APPRAISAL OF UNDISPUTED
FACTS OF RECORD, OR WHERE REFERENCE TO THE FACTS IS NECESSARY TO THE
DETERMINATION OF THE PRECISE MEANING OF THE FEDERAL RIGHT OR IMMUNITY,
AS APPLIED, WE ARE FREE TO REEXAMINE THE FACTS AS WELL AS THE LAW IN
ORDER TO DETERMINE FOR OURSELVES WHETHER THE ASSERTED RIGHT OR IMMUNITY
IS TO BE SUSTAINED.  KANSAS CITY SOUTHERN R. CO. V. ALBERS COMMISSION
CO., 223 U.S. 573, 591; TRUAX V. CORRIGAN, 257 U.S. 312, 325; FIRST
NATIONAL BANK V. HARTFORD, 273 U.S. 548, 552, AND CASES CITED; FISKE V.
KANSAS, 274 U.S. 380, 385-386; NORRIS V. ALABAMA, 294 U.S. 587, 589
590. 

IN THIS CASE IT APPEARS WITHOUT CONTRADICTION THAT PETITIONER, IN THE
REGULAR COURSE OF ITS BUSINESS, CONTRACTS FOR ITS MANUFACTURING
REQUIREMENTS OF HEMP, JUTE, SISAL AND OTHER FIBERS, BEFORE THEIR
SHIPMENT TO THIS COUNTRY, AND SOMETIMES EVEN BEFORE THEY ARE PRODUCED
IN THE VARIOUS FOREIGN COUNTRIES OF THEIR ORIGIN.  PETITIONER'S
NEGOTIATIONS FOR THE PURCHASE ARE CARRIED ON WITH BROKERS LOCATED IN
NEW YORK CITY, WHO REPRESENT THE FOREIGN PRODUCERS.  AFTER AN AGREEMENT
AS TO PRICE, PETITIONER ENTERS INTO A FIRM CONTRACT TO PURCHASE THE
FIBERS.  A STANDARD FORM OF CONTRACT IS EXECUTED IN DUPLICATE OR
TRIPLICATE BY PETITIONER AND THE BROKER WHO SIGNS AS AGENT FOR OR "FOR
ACCOUNT OF" HIS NAMED PRINCIPAL.  THE CONTRACT SPECIFIES THE KIND AND
AMOUNT OF FIBERS PURCHASED, THE TIME OF SHIPMENT, THE AMERICAN PORT TO
WHICH THE SHIPMENT IS TO BE MADE, AND FREQUENTLY THE STEAMSHIP COMPANY,
DESIGNATED BY PETITIONER, UPON WHOSE VESSEL THE MERCHANDISE IS TO BE
SHIPPED.  WHILE THE CONTRACT GAVE THE SELLER THE OPTION TO MAKE
DELIVERIES FROM MERCHANDISE WAREHOUSED IN THE UNITED STATES, NO SUCH
DELIVERIES WERE MADE OF ANY OF THE MERCHANDISE HERE IN QUESTION. 

THE PRICE IS A "LANDED PRICE," WHICH INCLUDES AS ITS COMPONENTS THE
CONTRACT COST OF THE GOODS AT POINT OF ORIGIN, THE NORMAL CHARGES FOR
OCEAN FREIGHT, MARINE AND WAR RISK INSURANCE AND UNITED STATES CUSTOMS
CLEARANCE (INCLUDING CUSTOMS DUTIES IN THE CASE OF HEMP, WHICH ALONE OF
THE PURCHASED MERCHANDISE IS SUBJECT TO IMPORT DUTIES), AND THE EXPENSE
OF ARRANGING FOR TRANSSHIPMENT FROM THE PORT OF ENTRY TO PETITIONER AT
XENIA, OHIO.  ANY VARIATION FROM THE NORMAL RATES FOR THESE COMPONENTS
(OTHER THAN THE CONTRACT COST OF THE GOODS AT POINT OF ORIGIN) IS FOR
ACCOUNT OF PETITIONER.  "EXTRA VALUE" INSURANCE COVERING ANY INCREASE
IN VALUE OF THE MERCHANDISE OVER THE CONTRACT PRICE DURING THE VOYAGE,
IS EFFECTED, IF PETITIONER REQUESTS, AT ITS EXPENSE. 

UPON SHIPMENT THE MERCHANDISE IS CONSIGNED TO THE BROKER IN THIS
COUNTRY OR TO A BANKER, EITHER ON AN ORDER OR A STRAIGHT BILL OF
LADING, IN EITHER CASE WITH DIRECTIONS TO "NOTIFY THE HOOVEN & ALLISON
CO."  WHEN THE BALES OF PURCHASED MERCHANDISE ARE LOADED FOR SHIPMENT
ON BOARD VESSEL AT THE POINT OF ORIGIN, THEY ARE GIVEN DISTINCTIVE
MARKINGS REFERABLE TO PETITIONER'S CONTRACT.  A DECLARATION IS THEN
CABLED TO THE NEW YORK BROKER REFERRING TO THE CONTRACT UPON WHICH THE
SHIPMENT IS MADE, STATING THE NAME OF THE VESSEL, THE APPROXIMATE
NUMBER OF BALES SHIPPED, THEIR IDENTIFICATION MARKS, AND THE
APPROXIMATE DATE OF ARRIVAL IN THE UNITED STATES.  THE BROKER
COMMUNICATES THIS INFORMATION TO PETITIONER AND SOMETIMES FOLLOWS IT
BEFORE ARRIVAL OF THE SHIPMENT AT THE PORT OF ENTRY, WITH A PRO FORMA
INVOICE, WHICH STATES THE APPROXIMATE TONNAGE AND VALUE OF THE
SHIPMENT.  PETITIONER THEN GIVES INSTRUCTIONS TO THE BROKER FOR THE
SHIPMENT FROM THE PORT TO XENIA.    THE BROKER ENTERS THE SHIPMENT AT
THE CUSTOM HOUSE IN ITS OWN NAME AS AN ACCOMMODATION TO THE PETITIONER,
WHICH HAS NO FACILITIES FOR CLEARANCE OF THE GOODS THROUGH THE
CUSTOMS.  THE BROKER THEN SHIPS THE MERCHANDISE UPON A STRAIGHT BILL OF
LADING TO XENIA, WHERE IT IS DELIVERED BY THE CARRIER TO PETITIONER. 
AT THAT TIME PETITIONER PAYS THE FREIGHT, AND TEN TO FIFTEEN DAYS AFTER
THE RECEIPT OF THE FINAL INVOICE, IT PAYS THE PURCHASE PRICE TO THE
BROKER.  IT IS STIPULATED THAT THE SALE IS UPON THE UNSECURED CREDIT OF
PETITIONER AND IT DOES NOT APPEAR THAT THERE IS ANY RETENTION OF A
SECURITY TITLE EITHER BY THE FOREIGN SELLER, THE BROKER, OR ANY
INTERVENING BANKER, TO SECURE PAYMENT BY PETITIONER OF THE PURCHASE
PRICE. 

FROM ALL THIS IT IS CLEAR THAT FROM THE BEGINNING, AFTER THE CONTRACT
OF PURCHASE IS SIGNED, THE FOREIGN PRODUCER IS OBLIGATED TO SELL THE
MERCHANDISE ON CREDIT, TO SHIP IT TO AN AMERICAN PORT AND TO DELIVER IT
TO PETITIONER, WHICH IS OBLIGATED TO ACCEPT AND PAY FOR IT.
PERFORMANCE OF THE CONTRACT CALLS FOR, AND NECESSARILY RESULTS IN,
IMPORTATION OF THE MERCHANDISE FROM ITS COUNTRY OF ORIGIN TO THE UNITED
STATES.  PETITIONER'S CONTRACTS OF PURCHASE ARE THE INDUCING AND
EFFICIENT CAUSE OF BRINGING THE MERCHANDISE INTO THE COUNTRY, WHICH IS
IMPORTATION.  EXAMINATION OF THE DOCUMENTS AND CONSIDERATION OF THE
COURSE OF BUSINESS CAN LEAVE NO DOUBT THAT THE PETITIONER NOT ONLY
CAUSES THE IMPORTATION BUT THAT THE PURPOSE AND NECESSARY CONSEQUENCE
OF IT ARE TO SUPPLY PETITIONER WITH THE RAW MATERIAL FOR ITS
MANUFACTURE OF CORDAGE AT ITS FACTORY IN OHIO. 

FROM THE MOMENT OF SHIPMENT THE TAXED MERCHANDISE WAS IDENTIFIED AND
APPROPRIATED TO THE PURCHASE CONTRACT AND TO THAT ULTIMATE PURPOSE, BY
BOTH THE SELLER AND THE BUYER.  PETITIONER COULD RESELL THE MERCHANDISE
WHILE IT WAS IN TRANSIT.  THE RISK OF LOSS FROM CHANGE IN MARKET VALUE
WAS ON PETITIONER, SAVE AS IT MIGHT INSURE AGAINST SUCH LOSS AT ITS OWN
EXPENSE.  THE RIGHT TO DEMAND, RECEIVE AND USE THE MERCHANDISE, SUBJECT
ONLY TO THE PAYMENT OF THE CONTRACT "LANDED PRICE," WAS IN PETITIONER. 
AND OBVIOUSLY IF THE POSSIBILITY OF THE SELLER'S RIGHT OF STOPPAGE IN
TRANSITU, THE CARRIER'S LIEN OR THE NECESSITY OF PAYMENT OF CUSTOMS
DUTIES ARE TO BE REGARDED AS INCONSISTENT WITH IMPORTATION, THERE WOULD
BE FEW IMPORTATIONS AND FEW IMPORTERS IN THE CONSTITUTIONAL SENSE.  FOR
THERE ARE FEW WHO ARE NOT SUBJECT TO SOME OR ALL OF THESE
CONTINGENCIES. 

HERE IT IS AGREED THAT THE SALE WAS ON CREDIT.  SO FAR AS APPEARS IN
THOSE INSTANCES WHERE THE MERCHANDISE WAS CONSIGNED TO A BANKER, IT WAS
FOR THE PURPOSE OF FINANCING THE PRODUCER OR SHIPPER, PENDING RECEIPT
OF THE MERCHANDISE AND PAYMENT FOR IT BY PETITIONER, WHICH APPEARS
ALWAYS TO HAVE PURCHASED ON CREDIT AND TO HAVE RECEIVED THE MERCHANDISE
BEFORE PAYMENT, AND NEVER TO HAVE GIVEN SECURITY FOR ITS PAYMENT. 
THERE WAS THEREFORE NO OCCASION FOR AN IMPLIED RESERVATION OF A
SECURITY "TITLE" AS AGAINST PETITIONER IN EITHER THE SELLERS OR THEIR
AGENTS, OR THE BANKER IN THOSE CASES WHERE THE GOODS WERE CONSIGNED ON
SHIPMENT TO A BANKER. 

FOR THE PURPOSE OF DETERMINING WHETHER PETITIONER WAS THE IMPORTER IN
THE CONSTITUTIONAL SENSE, IT IS IMMATERIAL WHETHER THE TITLE TO THE
MERCHANDISE IMPORTED VESTED IN HIM WHO CAUSED IT TO BE BROUGHT TO THIS
COUNTRY AT THE TIME OF SHIPMENT OR ONLY AFTER ITS ARRIVAL HERE.  FN3
DECISION IN WARING V. THE MAYOR, SUPRA, UPON WHICH THE SUPREME COURT OF
OHIO RELIED, DID NOT TURN ON TECHNICAL QUESTIONS OF PASSAGE OF TITLE. 
FN4  FOR IN DETERMINING THE MEANING AND APPLICATION OF THE
CONSTITUTIONAL PROVISION, WE ARE CONCERNED WITH MATTERS OF SUBSTANCE,
NOT OF FORM.  WHEN THE MERCHANDISE IS BROUGHT FROM ANOTHER COUNTRY TO
THIS, THE EXTENT OF ITS IMMUNITY FROM STATE TAXATION TURNS ON THE
ESSENTIAL NATURE OF THE TRANSACTION, CONSIDERED IN THE LIGHT OF THE
CONSTITUTIONAL PURPOSE, AND NOT ON THE FORMALITIES WITH WHICH THE
IMPORTATION IS CONDUCTED OR ON THE TECHNICAL PROCEDURES BY WHICH IT IS
EFFECTED.  IT IS COMMON KNOWLEDGE TO LAWYERS AND BUSINESSMEN THAT VAST
QUANTITIES OF MERCHANDISE ARE ANNUALLY IMPORTED INTO THIS COUNTRY BY
PURCHASERS RESIDENT HERE, FOR SALE OR MANUFACTURE HERE.  SOMETIMES THE
BUYER COMPLETES THE PURCHASE ABROAD, IN PERSON, AND SHIPS TO THIS
COUNTRY; SOMETIMES, AS IN THIS CASE, THE PURCHASE IS ON UNSECURED
CREDIT, BUT MORE OFTEN IT IS UNDER CONTRACTS BY WHICH THE VENDOR
RESERVES IN HIMSELF OR HIS AGENT OR A BANKER A LIEN OR TITLE AS
SECURITY FOR PAYMENT OF THE PURCHASE PRICE ON OR AFTER ARRIVAL.  TO SAY
THAT THE PURCHASER IS ANY THE LESS AN IMPORTER IN THE ONE CASE THAN IN
THE OTHERS, IS TO IGNORE THE CONSTITUTIONAL PURPOSE AND SUBSTITUTE FORM
FOR SUBSTANCE. 

AS WE HAVE SAID, THE CONSTITUTIONAL PURPOSE IS TO PROTECT THE
EXCLUSIVE POWER OF THE NATIONAL GOVERNMENT TO TAX IMPORTS AND TO
PREVENT WHAT IN MATTER OF SUBSTANCE WOULD AMOUNT TO THE IMPOSITION OF
ADDITIONAL IMPORT DUTIES BY STATES IN WHICH THE PROPERTY MIGHT BE FOUND
OR STORED BEFORE ITS SALE OR USE.  IT IS EVIDENT THAT THE
CONSTITUTIONAL PROHIBITION ENVISAGES THE PRESENT TRANSACTION, QUITE AS
MUCH AS IF THE PETITIONER HAD SENT HIS OWN AGENT ABROAD WHERE HE HAD
PURCHASED AND PAID FOR THE MERCHANDISE AND SHIPPED IT TO PETITIONER IN
THIS COUNTRY.  THE PURPOSE AND RESULT OF THE TRANSACTION ARE THE SAME
IN EITHER CASE.  THE APPREHENDED EVILS OF THE LOCAL TAXATION OF IMPORTS
AFTER THEIR ARRIVAL HERE ARE THE SAME. 

IT IS ENOUGH FOR PRESENT PURPOSES THAT THE MERCHANDISE IN THIS CASE
WAS IMPORTED; AND THAT PETITIONER WAS THE EFFICIENT CAUSE OF ITS
IMPORTATION, THE PURPOSE AND EFFECT OF WHICH WAS PETITIONER'S
ACQUISITION OF THE MERCHANDISE FOR ITS MANUFACTURE INTO FINISHED
GOODS.  WE CONCLUDE THAT PETITIONER WAS THE IMPORTER, AND THAT THE
MERCHANDISE IN ITS HANDS WAS ENTITLED TO THE CONSTITUTIONAL TAX
IMMUNITY, SURVIVING DELIVERY OF THE IMPORTS TO IT.

                                  II 

WE TURN NOW TO THE QUESTION WHETHER THE IMMUNITY WAS LOST BY THE
STORAGE OF THE MERCHANDISE IN THE ORIGINAL PACKAGES IN PETITIONER'S
WAREHOUSE AT ITS FACTORY, PENDING ITS USE IN PETITIONER'S MANUFACTURING
OPERATIONS.  FOR THE PURPOSE OF THE IMMUNITY IT HAS NOT BEEN THOUGHT,
NOR IS THERE REASON FOR SUPPOSING, THAT IT MATTERS WHETHER THE IMPORTED
MERCHANDISE IS STORED IN THE ORIGINAL PACKAGE IN THE IMPORTER'S
WAREHOUSE AT THE PORT OF ENTRY OR IN AN INTERIOR STATE.  THE REASON FOR
THE ORIGINAL PACKAGE DOCTRINE, AS FULLY EXPOUNDED IN BROWN V. MARYLAND,
SUPRA, IS THAT UNLESS THE IMMUNITY SURVIVES TO SOME EXTENT THE ARRIVAL
OF THE MERCHANDISE IN THE UNITED STATES, THE IMMUNITY ITSELF WOULD BE
DESTROYED.  FOR THERE IS NO PURPOSE OF TAXING IMPORTATION, ITSELF, EVEN
ITS ULTIMATE SUPPRESSION, WHICH COULD NOT BE EQUALLY ACCOMPLISHED BY
LAYING A LIKE TAX ON THINGS IMPORTED AFTER THEIR ARRIVAL AND WHILE THEY
ARE IN THE HANDS OF THE IMPORTER. 

ON THE OTHER HAND, THE IMMUNITY IS ADEQUATELY PROTECTED AND THE STATE
POWER TO TAX IS ADEQUATELY SAFEGUARDED IF, AS HAS BEEN THE CASE EVER
SINCE BROWN V. MARYLAND, SUPRA, AN IMPORT IS DEEMED TO RETAIN ITS
CHARACTER AS SUCH "WHILE REMAINING THE PROPERTY OF THE IMPORTER, IN HIS
WAREHOUSE, IN THE ORIGINAL FORM OR PACKAGE IN WHICH IT WAS IMPORTED,"
SEE BROWN V. MARYLAND, SUPRA, 442, OR UNTIL PUT TO THE USE FOR WHICH IT
WAS IMPORTED.  CHIEF JUSTICE MARSHALL, IN BROWN V. MARYLAND, SUPRA, PP.
442-443, REJECTED THE SUGGESTION THAT "AN IMPORTER MAY BRING IN GOODS,
AS PLATE, FOR HIS OWN USE, AND THUS RETAIN MUCH VALUABLE PROPERTY
EXEMPT FROM TAXATION."  PLAINLY IF AND WHEN REMOVED FROM THE PACKAGE IN
WHICH THEY ARE IMPORTED OR WHEN USED FOR THE PURPOSE FOR WHICH THEY ARE
IMPORTED, THEY CEASE TO BE IMPORTS AND THEIR TAX EXEMPTION IS AT AN
END.  IT IS QUITE ANOTHER MATTER TO SAY, AND CHIEF JUSTICE MARSHALL DID
NOT SAY, THAT BECAUSE THEY MAY BE TAXED WHEN USED, THE IMPORTER MAY NOT
HOLD THEM TAX FREE UNTIL THE ORIGINAL PACKAGES ARE BROKEN OR UNTIL THEY
ARE PUT TO THE USE FOR WHICH THEY ARE IMPORTED.  HE SAID, P. 443:  "THE
SAME OBSERVATIONS (I.E., THE IMPORTER HAS MIXED THE GOODS WITH THE
COMMON MASS OF PROPERTY, RENDERING THEM TAXABLE) APPLY TO PLATE, OR
OTHER FURNITURE USED BY THE IMPORTER." 

WE HAVE OFTEN INDICATED THE DIFFERENCE IN THIS RESPECT BETWEEN THE
LOCAL TAXATION OF IMPORTS IN THE ORIGINAL PACKAGE AND THE LIKE TAXATION
OF GOODS, EITHER BEFORE OR AFTER THEIR SHIPMENT IN INTERSTATE
COMMERCE.  IN THE ONE CASE THE IMMUNITY DERIVES FROM THE PROHIBITION
UPON TAXATION OF THE IMPORTED MERCHANDISE ITSELF.  IN THE OTHER THE
IMMUNITY IS ONLY FROM SUCH LOCAL REGULATION BY TAXATION, AS INTERFERES
WITH THE CONSTITUTIONAL POWER OF CONGRESS TO REGULATE THE COMMERCE,
WHETHER THE TAXED MERCHANDISE IS IN THE ORIGINAL PACKAGE OR NOT.  THE
REGULATORY EFFECT OF A TAX, OTHERWISE PERMISSIBLE, IS NOT IN GENERAL
AFFECTED BY RETENTION OF THE MERCHANDISE IN THE ORIGINAL PACKAGE IN
WHICH IT HAS BEEN TRANSPORTED.  WOODRUFF V. PARHAM, 8 WALL.  123; BROWN
V. HOUSTON, 114 U.S. 622; AMERICAN STEEL & WIRE CO. V. SPEED, 192 U.S.
500, 521; SONNEBORN BROS. V. CURETON, 262 U.S. 506, 508-513; BALDWIN V.
SEELIG, 294 U.S. 511, 526-527. 

THIS COURT HAS POINTED OUT ON SEVERAL OCCASIONS THAT IMPORTS FOR
MANUFACTURE CEASE TO BE SUCH AND LOSE THEIR CONSTITUTIONAL IMMUNITY
FROM STATE TAXATION WHEN THEY ARE SUBJECTED TO THE MANUFACTURE FOR
WHICH THEY WERE IMPORTED, MAY V. NEW ORLEANS, SUPRA, 501; GULF
FISHERIES CO. V. MACINERNEY, SUPRA, 126; MCGOLDRICK V. GULF OIL CORP.,
SUPRA, 423, OR WHEN THE ORIGINAL PACKAGES IN WHICH THEY WERE IMPORTED
ARE BROKEN, LOW V. AUSTIN, SUPRA, 34; MAY V. NEW ORLEANS, SUPRA, 508
509.  BUT NO OPINION OF THIS COURT HAS EVER SAID OR INTIMATED THAT
IMPORTS HELD BY THE IMPORTER IN THE ORIGINAL PACKAGE AND BEFORE THEY
WERE SUBJECTED TO THE MANUFACTURE FOR WHICH THEY WERE IMPORTED, ARE
LIABLE TO STATE TAXATION.  ON THE CONTRARY, CHIEF JUSTICE TANEY, IN
AFFIRMING THE DOCTRINE OF BROWN V. MARYLAND, IN WHICH HE APPEARED AS
COUNSEL FOR THE STATE, DECLARED, AS WE NOW AFFIRM:  "INDEED, GOODS
IMPORTED, WHILE THEY REMAIN IN THE HANDS OF THE IMPORTER, IN THE FORM
AND SHAPE IN WHICH THEY WERE BROUGHT INTO THE COUNTRY, CAN IN NO JUST
SENSE BE REGARDED AS A PART OF THAT MASS OF PROPERTY IN THE STATE
USUALLY TAXED FOR THE SUPPORT OF STATE GOVERNMENT."  LICENSE CASES, 5
HOW.  504, 575. 

IN BROWN V. MARYLAND, SUPRA, THE IMPORTED MERCHANDISE HELD IN
ORIGINAL PACKAGES IN THE IMPORTER'S WAREHOUSE FOR SALE, WAS DEEMED TAX
IMMUNE.  WE DO NOT PERCEIVE UPON WHAT GROUNDS IT CAN BE THOUGHT THAT
IMPORTS FOR MANUFACTURE LOSE THEIR CHARACTER AS IMPORTS ANY SOONER OR
MORE READILY THAN IMPORTS FOR SALE.  THE CONSTITUTIONAL NECESSITY THAT
THE IMMUNITY, IF IT IS TO BE PRESERVED AT ALL, SURVIVE THE LANDING OF
THE MERCHANDISE IN THE UNITED STATES AND CONTINUE UNTIL A POINT IS
REACHED, CAPABLE OF PRACTICAL DETERMINATION, WHEN IT CAN FAIRLY BE SAID
THAT IT HAS BECOME A PART OF THE MASS OF TAXABLE PROPERTY WITHIN A
STATE, IS THE SAME IN BOTH CASES. 

IT CANNOT BE SAID THAT THE FIBERS WERE SUBJECTED TO MANUFACTURE WHEN
THEY WERE PLACED IN PETITIONER'S WAREHOUSE IN THEIR ORIGINAL PACKAGES. 
AND IT IS UNNECESSARY TO DECIDE WHETHER, FOR PURPOSES OF THE
CONSTITUTIONAL IMMUNITY, THE PRESENCE OF SOME FIBERS IN THE FACTORY WAS
SO ESSENTIAL TO CURRENT MANUFACTURING REQUIREMENTS THAT THEY COULD BE
SAID TO HAVE ENTERED THE PROCESS OF MANUFACTURE, AND HENCE WERE ALREADY
PUT TO THE USE FOR WHICH THEY WERE IMPORTED, BEFORE THEY WERE REMOVED
FROM THE ORIGINAL PACKAGES.  EVEN THOUGH THE INVENTORY OF RAW MATERIAL
REQUIRED TO BE KEPT ON HAND TO MEET THE CURRENT OPERATIONAL NEEDS OF A
MANUFACTURING BUSINESS COULD BE THOUGHT TO HAVE THEN ENTERED THE
MANUFACTURING PROCESS, THE DECISION OF THE OHIO SUPREME COURT DID NOT
REST ON THAT GROUND, AND THE RECORD AFFORDS NO BASIS FOR SAYING THAT
ANY PART OF PETITIONER'S FIBERS, STORED IN ITS WAREHOUSE, WERE REQUIRED
TO MEET SUCH IMMEDIATE CURRENT NEEDS.  HENCE WE HAVE NO OCCASION TO
CONSIDER THAT QUESTION. 

IT IS SAID THAT OUR DECISION WILL RESULT IN DISCRIMINATION AGAINST
DOMESTIC AND IN FAVOR OF FOREIGN PRODUCERS OF GOODS.  BUT SUCH
DISCRIMINATIONS AS THERE MAY BE ARE IMPLICIT IN THE CONSTITUTIONAL
PROVISION AND IN ITS PURPOSE TO PROTECT IMPORTS FROM STATE TAXATION. 
IT IS ALSO SUGGESTED THAT IT WILL BE DIFFICULT TO ASCERTAIN IN
PARTICULAR CASES WHEN AN ORIGINAL PACKAGE IS BROKEN, A DIFFICULTY WHICH
ARISES, NOT OUT OF THE PRESENT DECISION, BUT OUT OF THE ORIGINAL
PACKAGE RULE ITSELF, WHICH WE DO NOT UNDERSTAND TO BE CHALLENGED HERE. 
MOREOVER, THIS SUPPOSED DIFFICULTY DOES NOT SEEM TO HAVE BAFFLED
JUDICIAL DECISION IN ANY CASE IN THE MORE THAN A HUNDRED YEARS WHICH
HAVE FOLLOWED THE DECISION IN BROWN V. MARYLAND, SUPRA. 

AS WAS EMPHASIZED IN BROWN V. MARYLAND, SUPRA, THE RECONCILIATION OF
THE COMPETING DEMANDS OF THE CONSTITUTIONAL IMMUNITY AND OF THE STATE'S
POWER TO TAX, IS AN EXTREMELY PRACTICAL MATTER.  IN VIEW OF THE FACT
THAT THE CONSTITUTION GIVES CONGRESS AUTHORITY TO CONSENT TO STATE
TAXATION OF IMPORTS AND HENCE TO LAY DOWN ITS OWN TEST FOR DETERMINING
WHEN THE IMMUNITY ENDS, WE SEE NO CONVINCING PRACTICAL REASON FOR
ABANDONING THE TEST WHICH HAS BEEN APPLIED FOR MORE THAN A CENTURY, OR
WHY, IF WE ARE TO RETAIN IT IN THE CASE OF IMPORTS FOR SALE, WE SHOULD
REJECT IT IN THE CASE OF IMPORTS FOR MANUFACTURE.  UNLESS WE ARE TO
IGNORE THE CONSTITUTIONAL PROHIBITION WE CANNOT SAY THAT IMPORTS FOR
MANUFACTURE ARE NOT ENTITLED TO THE IMMUNITY WHICH THE CONSTITUTION
COMMANDS, AND WE SEE NO THEORETICAL OR PRACTICAL GROUNDS FOR SAYING,
MORE THAN IN THE CASE OF GOODS IMPORTED FOR SALE, THAT THE IMMUNITY
ENDS WHILE THEY ARE IN THE ORIGINAL PACKAGE AND BEFORE THEY ARE DEVOTED
TO THE PURPOSE FOR WHICH THEY WERE IMPORTED. 
       III 

THERE REMAINS THE QUESTION WHETHER THE FIBERS WHICH PETITIONER
BROUGHT FROM THE PHILIPPINE ISLANDS AND STORED IN ITS WAREHOUSE IN THE
ORIGINAL PACKAGES ARE ALSO IMPORTS, CONSTITUTIONALLY IMMUNE FROM STATE
TAXATION. 

RESPONDENTS ARGUE THAT THE PHILIPPINE ISLANDS ARE NOT A FOREIGN
COUNTRY AND THAT ONLY ARTICLES BROUGHT HERE FROM FOREIGN COUNTRIES ARE
IMPORTS WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION.  GOODS
TRANSPORTED FROM ONE STATE TO ANOTHER ARE NOT IMPORTS, SINCE THEY ARE
ARTICLES ORIGINATING IN THE UNITED STATES AND NOT BROUGHT INTO IT.
WOODRUFF V. PARHAM, SUPRA; SONNEBORN BROS. V. CURETON, SUPRA; BALDWIN
V. SEELIG, SUPRA.  IT IS PETITIONER'S ARGUMENT THAT MERCHANDISE BROUGHT
FROM THE PHILIPPINES TO THE UNITED STATES IS AN IMPORT BECAUSE IT IS
BROUGHT INTO THE UNITED STATES FROM A PLACE WITHOUT, EVEN THOUGH NOT
FROM A FOREIGN COUNTRY.  IMPLICIT IN THIS ARGUMENT IS THE CONTENTION
THAT THE PHILIPPINES, WHILE BELONGING TO THE UNITED STATES AS A
SOVEREIGN, ARE NOT PART OF IT; AND THAT MERCHANDISE BROUGHT FROM THE
PHILIPPINES IS AN IMPORT BECAUSE IT ORIGINATES OUTSIDE OF AND IS
BROUGHT INTO THE TERRITORY COMPRISING THE SEVERAL STATES WHICH ARE
UNITED UNDER AND BY THE CONSTITUTION, TERRITORY IN WHICH THE
CONSTITUTIONAL PROHIBITION AGAINST THE STATE TAXATION OF IMPORTS, IS
ALONE APPLICABLE. 

THE CONSTITUTION PROVIDES US WITH NO DEFINITION OF THE TERM "IMPORTS"
OTHER THAN SUCH AS IS IMPLICIT IN THE WORD ITSELF.  IMPORTS WERE
DEFINED BY CHIEF JUSTICE MARSHALL IN BROWN V. MARYLAND, SUPRA, 437, AS
"THINGS IMPORTED" AND "ARTICLES BROUGHT INTO A COUNTRY."  HE ADDED:
"IF WE APPEAL TO USAGE FOR THE MEANING OF THE WORD, WE SHALL RECEIVE
THE SAME ANSWER.  THEY ARE THE ARTICLES THEMSELVES WHICH ARE BROUGHT
INTO THE COUNTRY." 

HE THUS DEFINED IMPORTS BY REFERENCE NOT TO THEIR FOREIGN ORIGIN BUT
TO THE PHYSICAL FACT THAT THEY ARE ARTICLES BROUGHT INTO THE COUNTRY
FROM SOME PLACE WITHOUT IT.  SINCE MOST IMPORTS ORIGINATE IN FOREIGN
COUNTRIES, COURTS HAVE NOT UNNATURALLY FALLEN INTO THE HABIT OF
REFERRING TO IMPORTS AS THINGS BROUGHT INTO THIS COUNTRY FROM A FOREIGN
COUNTRY.  WARING V. THE MAYOR, SUPRA; WOODRUFF V. PARHAM, SUPRA;
PITTSBURGH & SOUTHERN COAL CO. V. LOUISIANA, 156 U.S. 590, 600;
PATAPSCO GUANO CO. V. NORTH CAROLINA, 171 U.S. 345, 350; MAY V. NEW
ORLEANS, SUPRA.  FN5  BUT THE CONSTITUTION SAYS NOTHING OF THE FOREIGN
ORIGIN OF IMPORTS, AND IN NONE OF THESE CASES WAS IT NECESSARY TO
DECISION TO FORMULATE THE RULE IN TERMS OF ORIGIN IN A FOREIGN
COUNTRY.  IN EACH CASE THE RESULT WOULD HAVE BEEN THE SAME IF THE COURT
HAD TREATED IMPORTS MERELY AS ARTICLES BROUGHT INTO THE COUNTRY FROM A
POINT WITHOUT. 

CHIEF JUSTICE MARSHALL'S DEFINITION HAS RECEIVED SUPPORT IN CASES
HOLDING OR SUGGESTING THAT FISH CAUGHT IN THE OPEN SEA AND BROUGHT INTO
THIS COUNTRY ARE IMPORTS ENTITLED TO THE CONSTITUTIONAL PROTECTION,
ALTHOUGH THEY DID NOT COME FROM A FOREIGN COUNTRY.  GULF FISHERIES CO.
V. DARROUZET, 17 F.2D 374, 376; BOOTH FISHERIES CORP. V. CASE, 182
WASH. 392, 395, 47 P.2D 834.  IN GULF FISHERIES CO. V. MACINERNEY,
SUPRA, WE FOUND IT UNNECESSARY TO DECIDE THE POINT.  IN THAT CASE THE
FISH HAD BEEN SUBJECTED TO A MANUFACTURING PROCESS AFTER THEIR ARRIVAL
IN PORT AND BEFORE THEY WERE TAXED.  HENCE, EVEN IF ORIGINALLY IMPORTS,
THEY HAD CEASED TO BE SUCH AND WERE NO LONGER IMMUNE FROM THE
CHALLENGED STATE TAX.  SEE ALSO FISHERMEN'S COOPERATIVE ASSN. V. STATE,
198 WASH. 413, 88 P.2D 593.  THE DEFINITION OF IMPORTS AS ARTICLES
BROUGHT INTO THE COUNTRY FINDS SUPPORT ALSO IN THE CIRCUMSTANCE THAT IT
HAS NEVER BEEN SERIOUSLY DOUBTED THAT MERCHANDISE BROUGHT INTO THE
UNITED STATES FROM WITHOUT IS SUBJECT TO THE POWER OF CONGRESS TO
IMPOSE CUSTOMS DUTIES, EVEN THOUGH THE MERCHANDISE IS NOT OF FOREIGN
ORIGIN.  AND THE OCCASION FOR PROTECTING THE POWER OF THE NATIONAL
GOVERNMENT TO LAY AND COLLECT CUSTOMS DUTIES UPON SUCH MERCHANDISE, IS
PRECISELY THE SAME AS IN THE CASE OF THAT OF FOREIGN ORIGIN.  HENCE IT
IS PLAIN THAT SUCH IMPORTATIONS, ALTHOUGH NOT OF FOREIGN ORIGIN, ARE
WITHIN THE DESIGN AND PURPOSE OF THE CONSTITUTIONAL PROHIBITION AGAINST
THE LOCAL TAXATION OF IMPORTS. 

WE FIND IT IMPOSSIBLE TO SAY THAT MERELY BECAUSE MERCHANDISE, BROUGHT
INTO THE COUNTRY FROM A PLACE WITHOUT, DOES NOT COME FROM A FOREIGN
COUNTRY, IT IS NOT AN IMPORT ENVISAGED BY THE WORDS AND PURPOSE OF THE
CONSTITUTIONAL PROHIBITION.  THE INTERPRETATION IN BROWN V. MARYLAND,
SUPRA, THE OCCASIONAL JUDICIAL DECISIONS THAT FOREIGN ORIGIN IS NOT A
NECESSARY CHARACTERISTIC OF IMPORTS SO LONG AS THEY ARE BROUGHT INTO
THE COUNTRY FROM A PLACE WITHOUT IT, AND THE PURPOSE OF THE
CONSTITUTIONAL PROHIBITION, ARE ALIKE PERSUASIVE THAT THERE MAY BE
IMPORTS IN THE CONSTITUTIONAL SENSE WHICH DO NOT HAVE A FOREIGN
ORIGIN. 

THE FACT THAT THE MERCHANDISE HERE IN QUESTION DID NOT COME FROM A
FOREIGN COUNTRY, IF THE CONTENTION BE ACCEPTED THAT THE PHILIPPINES ARE
NOT TO BE REGARDED AS SUCH, IS THEREFORE WITHOUT SIGNIFICANCE.  IT IS
MATERIAL ONLY WHETHER IT CAME FROM A PLACE WITHOUT THE "COUNTRY." 
HENCE, IN DETERMINING WHAT ARE IMPORTS FOR CONSTITUTIONAL PURPOSES, WE
MUST ASCERTAIN THE TERRITORIAL LIMITS OF THE "COUNTRY" INTO WHICH THEY
ARE BROUGHT.  OBVIOUSLY, IF THE PHILIPPINES ARE TO BE REGARDED AS A
PART OF THE UNITED STATES IN THIS SENSE, MERCHANDISE BROUGHT FROM THE
PHILIPPINES TO THE UNITED STATES WOULD NOT BE BROUGHT INTO THE UNITED
STATES FROM A PLACE WITHOUT, AND WOULD NOT BE IMPORTS, MORE THAN
ARTICLES TRANSPORTED FROM ONE STATE TO ANOTHER. 

THE TERM "UNITED STATES" MAY BE USED IN ANY ONE OF SEVERAL SENSES. 
IT MAY BE MERELY THE NAME OF A SOVEREIGN OCCUPYING THE POSITION
ANALOGOUS TO THAT OF OTHER SOVEREIGNS IN THE FAMILY OF NATIONS.  IT MAY
DESIGNATE THE TERRITORY OVER WHICH THE SOVEREIGNTY OF THE UNITED STATES
EXTENDS, OR IT MAY BE THE COLLECTIVE NAME OF THE STATES WHICH ARE
UNITED BY AND UNDER THE CONSTITUTION.  FN6 

WHEN BROWN V. MARYLAND, SUPRA, WAS DECIDED, THE UNITED STATES WAS
WITHOUT DEPENDENCIES OR TERRITORIES OUTSIDE ITS THEN TERRITORIAL
BOUNDARIES ON THE NORTH AMERICAN CONTINENT, AND THE COURT HAD BEFORE IT
ONLY THE QUESTION WHETHER FOREIGN ARTICLES BROUGHT INTO THE STATE OF
MARYLAND COULD BE SUBJECTED TO STATE TAXATION.  IT SEEMS PLAIN THAT
CHIEF JUSTICE MARSHALL, IN HIS REFERENCE TO IMPORTS AS ARTICLES BROUGHT
INTO THE COUNTRY, COULD HAVE HAD REFERENCE ONLY TO ARTICLES BROUGHT
INTO A STATE WHICH IS ONE OF THE STATES UNITED BY AND UNDER THE
CONSTITUTION, AND IN WHICH ALONE THE CONSTITUTIONAL PROHIBITION HERE
INVOLVED IS APPLICABLE. 

THE RELATION OF THE PHILIPPINES TO THE UNITED STATES, TAKEN AS THE
COLLECTIVE NAME OF THE STATES WHICH ARE UNITED BY AND UNDER THE
CONSTITUTION, IS IN MANY RESPECTS DIFFERENT FROM THE STATUS OF THOSE
AREAS WHICH, WHEN THE CONSTITUTION WAS ADOPTED, WERE BROUGHT UNDER THE
CONTROL OF CONGRESS AND WHICH WERE ULTIMATELY ORGANIZED INTO STATES OF
THE UNITED STATES.  SEE BALZAC V. PORTO RICO, 258 U.S. 298, 304-305,
AND CASES CITED.  HENCE WE DO NOT STOP TO INQUIRE WHETHER ARTICLES
BROUGHT INTO SUCH TERRITORIES OR BROUGHT FROM SUCH TERRITORIES INTO A
STATE, COULD HAVE BEEN REGARDED AS IMPORTS, CONSTITUTIONALLY IMMUNE
FROM STATE TAXATION.  WE CONFINE THE PRESENT DISCUSSION TO THE QUESTION
WHETHER SUCH ARTICLES, BROUGHT FROM THE PHILIPPINES AND INTRODUCED INTO
THE UNITED STATES, ARE IMPORTS SO IMMUNE. 

WE HAVE ADVERTED TO THE FACT THAT THE REASONS FOR PROTECTING FROM
INTERFERENCE, BY STATE TAXATION, THE CONSTITUTIONAL POWER OF THE
NATIONAL GOVERNMENT TO COLLECT CUSTOMS DUTIES, APPLY EQUALLY WHETHER
THE MERCHANDISE BROUGHT INTO THE COUNTRY IS OF FOREIGN ORIGIN OR NOT. 
THE CONSTITUTION HAS NOT MADE THE FOREIGN ORIGIN OF ARTICLES IMPORTED
THE TEST OF IMPORTATION, BUT ONLY THEIR ORIGIN IN A PLACE OVER WHICH
THE CONSTITUTION HAS NOT EXTENDED ITS COMMANDS WITH RESPECT TO IMPORTS
AND THEIR TAXATION.  HENCE OUR QUESTION MUST BE DECIDED, NOT BY
DETERMINING WHETHER THE PHILIPPINES ARE A FOREIGN COUNTRY, AS INDEED
THEY HAVE BEEN HELD NOT TO BE WITHIN THE MEANING OF THE GENERAL TARIFF
LAWS OF THE UNITED STATES, FOURTEEN DIAMOND RINGS V. UNITED STATES, 183
U.S. 176; CF. DE LIMA V. BIDWELL, 182 U.S. 1; DOOLEY V. UNITED STATES,
182 U.S. 222, AND WITHIN THE SCOPE OF OTHER GENERAL LAWS, FABER V.
UNITED STATES, 221 U.S. 649; CF. HUUS V. NEW YORK & P.R. S.S. CO., 182
U.S. 392; GONZALES V. WILLIAMS, 192 U.S. 1; WEST INDIA OIL CO. V.
DOMENECH, 311 U.S. 20, BUT BY DETERMINING WHETHER THEY HAVE BEEN UNITED
GOVERNMENTALLY WITH THE UNITED STATES BY AND UNDER THE CONSTITUTION. 

THAT OUR DEPENDENCIES, ACQUIRED BY CESSION AS THE RESULT OF OUR WAR
WITH SPAIN, ARE TERRITORIES BELONGING TO, BUT NOT A PART OF, THE UNION
OF STATES UNDER THE CONSTITUTION, WAS LONG SINCE ESTABLISHED BY A
SERIES OF DECISIONS IN THIS COURT BEGINNING WITH THE INSULAR TAX CASES
IN 1901; DE LIMA V. BIDWELL, SUPRA; DOOLEY V. UNITED STATES, SUPRA, 182
U.S. 222; DOWNES V. BIDWELL, 182 U.S. 244; DOOLEY V. UNITED STATES, 183
U.S. 151; AND SEE ALSO PUBLIC UTILITY COMMISSIONERS V. YNCHAUSTI & CO.,
251 U.S. 401, 406-407; BALZAC V. PORTO RICO, SUPRA.  THIS STATUS HAS
EVER SINCE BEEN MAINTAINED IN THE PRACTICAL CONSTRUCTION OF THE
CONSTITUTION BY ALL THE AGENCIES OF OUR GOVERNMENT IN DEALING WITH OUR
INSULAR POSSESSIONS.  IT IS NO LONGER DOUBTED THAT THE UNITED STATES
MAY ACQUIRE TERRITORY BY CONQUEST OR BY TREATY, AND MAY GOVERN IT
THROUGH THE EXERCISE OF THE POWER OF CONGRESS CONFERRED BY SEC. 3 OF
ARTICLE IV OF THE CONSTITUTION "TO DISPOSE OF AND MAKE ALL NEEDFUL
RULES AND REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY
BELONGING TO THE UNITED STATES."  DOOLEY V. UNITED STATES, SUPRA, 183
U.S. AT 157; DORR V. UNITED STATES, 195 U.S. 138, 149; BALZAC V. PORTO
RICO, SUPRA, 305; CINCINNATI SOAP CO. V. UNITED STATES, 301 U.S. 308,
323. 

IN EXERCISING THIS POWER, CONGRESS IS NOT SUBJECT TO THE SAME
CONSTITUTIONAL LIMITATIONS, AS WHEN IT IS LEGISLATING FOR THE UNITED
STATES.  SEE DOWNES V. BIDWELL, SUPRA; HAWAII V. MANKICHI, 190 U.S.
197; DORR V. UNITED STATES, SUPRA; DOWDELL V. UNITED STATES, 221 U.S.
325, 332; OCAMPO V. UNITED STATES, 234 U.S. 91, 98; PUBLIC UTILITY
COMMISSIONERS V. YNCHAUSTI & CO., SUPRA, 406-407; BALZAC V. PORTO RICO,
SUPRA.  AND IN GENERAL THE GUARANTIES OF THE CONSTITUTION, SAVE AS THEY
ARE LIMITATIONS UPON THE EXERCISE OF EXECUTIVE AND LEGISLATIVE POWER
WHEN EXERTED FOR OR OVER OUR INSULAR POSSESSIONS, EXTEND TO THEM ONLY
AS CONGRESS, IN THE EXERCISE OF ITS LEGISLATIVE POWER OVER TERRITORY
BELONGING TO THE UNITED STATES, HAS MADE THOSE GUARANTIES APPLICABLE. 
SEE BALZAC V. PORTO RICO, SUPRA.  THE CONSTITUTIONAL RESTRICTIONS ON
THE POWER OF CONGRESS TO DEAL WITH ARTICLES BROUGHT INTO OR SENT OUT OF
THE UNITED STATES, DO NOT APPLY TO ARTICLES BROUGHT INTO OR SENT OUT OF
THE PHILIPPINES.  DESPITE THE RESTRICTIONS OF SECS. 8 AND 9 OF ARTICLE
I OF THE CONSTITUTION, SUCH ARTICLES MAY BE TAXED BY CONGRESS AND
WITHOUT APPORTIONMENT.  DOWNES V. BIDWELL, SUPRA.  IT FOLLOWS THAT
ARTICLES BROUGHT FROM THE PHILIPPINES INTO THE UNITED STATES ARE
IMPORTS IN THE SENSE THAT THEY ARE BROUGHT FROM TERRITORY, WHICH IS NOT
A PART OF THE UNITED STATES, INTO THE TERRITORY OF THE UNITED STATES,
ORGANIZED BY AND UNDER THE CONSTITUTION, WHERE ALONE THE IMPORT CLAUSE
OF THE CONSTITUTION IS APPLICABLE. 

THE STATUS OF THE PHILIPPINES AS TERRITORY BELONGING TO THE UNITED
STATES, BUT NOT CONSTITUTIONALLY UNITED WITH IT, HAS BEEN MAINTAINED
CONSISTENTLY IN ALL THE GOVERNMENTAL RELATIONS BETWEEN THE PHILIPPINES
AND THE UNITED STATES.  FOLLOWING THE CONQUEST OF THE PHILIPPINES, THEY
WERE GOVERNED FOR A PERIOD UNDER THE WAR POWER.  AFTER ANNEXATION BY
THE TREATY OF PARIS OF DECEMBER 10, 1898, MILITARY GOVERNMENT WAS
SUCCEEDED BY A FORM OF EXECUTIVE GOVERNMENT.  BY THE SPOONER AMENDMENT
TO THE ARMY APPROPRIATION BILL OF MARCH 2, 1901, C. 803, 31 STAT. 895,
910, IT WAS PROVIDED THAT "ALL MILITARY, CIVIL, AND JUDICIAL POWERS
NECESSARY TO GOVERN THE PHILIPPINE ISLANDS  ...  SHALL, UNTIL OTHERWISE
PROVIDED BY CONGRESS, BE VESTED IN SUCH PERSON AND PERSONS AND SHALL BE
EXERCISED IN SUCH MANNER AS THE PRESIDENT OF THE UNITED STATES SHALL
DIRECT, FOR THE ESTABLISHMENT OF CIVIL GOVERNMENT AND FOR MAINTAINING
AND PROTECTING THE INHABITANTS OF SAID ISLANDS IN THE FREE ENJOYMENT OF
THEIR LIBERTY, PROPERTY, AND RELIGION  ..."  ON JULY 1, 1902 CONGRESS
PROVIDED FOR A COMPLETE SYSTEM OF CIVIL GOVERNMENT BY THE ORIGINAL
PHILIPPINE ORGANIC ACT, C. 1369, 32 STAT. 691.  STEP BY STEP CONGRESS
HAS CONFERRED GREATER POWERS UPON THE TERRITORIAL GOVERNMENT, AND THOSE
OF THE FEDERAL GOVERNMENT HAVE BEEN DIMINISHED CORRESPONDINGLY,
ALTHOUGH CONGRESS RETAINS PLENARY POWER OVER THE TERRITORIAL GOVERNMENT
UNTIL SUCH TIME AS THE PHILIPPINES ARE MADE INDEPENDENT.  THIS PROCESS
CULMINATED IN THE ACT OF MARCH 24, 1934, C. 84, 48 STAT. 456, PROVIDING
FOR THE INDEPENDENCE OF THE ISLANDS.  THE ADOPTION BY THE PHILIPPINES
AND APPROVAL BY THE UNITED STATES OF A CONSTITUTION FOR THE
COMMONWEALTH OF THE PHILIPPINE ISLANDS, AS PROVIDED BY THE ACT, HAVE
PREPARED THE WAY FOR THEIR COMPLETE INDEPENDENCE. 

THE ACT OF 1934 MADE SPECIAL PROVISIONS FOR THE RELATIONS BETWEEN THE
TWO GOVERNMENTS PENDING THE FINAL WITHDRAWAL OF SOVEREIGNTY OF THE
UNITED STATES FROM THE PHILIPPINES AND IN PARTICULAR PROVIDED FOR A
LIMIT ON THE NUMBER AND AMOUNT OF ARTICLES PRODUCED OR MANUFACTURED IN
THE PHILIPPINE ISLANDS THAT MIGHT BE "EXPORTED" TO THE UNITED STATES
FREE OF DUTY.  SEC. 6.  IT PROVIDED FOR THE COMPLETE WITHDRAWAL AND
SURRENDER OF ALL RIGHT OF POSSESSION, SUPERVISION, JURISDICTION,
CONTROL OR SOVEREIGNTY OF THE UNITED STATES OVER THE PHILIPPINES ON THE
4TH OF JULY FOLLOWING THE EXPIRATION OF TEN YEARS FROM THE DATE OF THE
INAUGURATION OF THE NEW GOVERNMENT, ORGANIZED UNDER THE CONSTITUTION
PROVIDED FOR BY THE INDEPENDENCE ACT.  FN7  SEC. 10(A).  THE NEW
PHILIPPINE CONSTITUTION WAS ADOPTED ON FEBRUARY 8, 1935, AND THE NEW
GOVERNMENT UNDER IT WAS INAUGURATED ON NOVEMBER 14, 1935.  BY THE
PROVISIONS OF THE INDEPENDENCE ACT, THE UNITED STATES RETAINED CERTAIN
POWERS WITH RESPECT TO OUR TRADE RELATIONS WITH THE ISLANDS, WITH
RESPECT TO THEIR FINANCIAL OPERATIONS AND CURRENCY, AND THE CONTROL OF
THEIR FOREIGN RELATIONS.  THE POWER OF REVIEW BY THIS COURT OF
PHILIPPINE CASES IS CONTINUED AND EXTENDED TO ALL CASES INVOLVING THE
CONSTITUTION OF THE COMMONWEALTH OF THE PHILIPPINE ISLANDS.  SEC.
7(6).  THUS BY THE ORGANIZATION OF THE NEW PHILIPPINE GOVERNMENT UNDER
THE CONSTITUTION OF 1935, THE ISLANDS HAVE BEEN GIVEN, IN MANY ASPECTS,
THE STATUS OF AN INDEPENDENT GOVERNMENT, WHICH HAS BEEN REFLECTED IN
ITS RELATIONS AS SUCH WITH THE OUTSIDE WORLD.  FN8 

IN THE MEANTIME, AND EVER SINCE THE INSULAR TAX CASES, SUPRA,
CONGRESS HAS OFTEN TREATED AS IMPORTS, ARTICLES BROUGHT TO THE UNITED
STATES FROM THE PHILIPPINES.  BY THE ACT OF AUGUST 29, 1916, C. 416, 39
STAT. 548, 48 U.S.C. SEC. 1042, THE TERRITORIAL GOVERNMENT OF THE
PHILIPPINES WAS AUTHORIZED TO ENACT TARIFF LAWS.  THE SUGAR QUOTA LAW,
7 U.S.C. SEC. 608A (1), DEFINED AS IMPORTS THE AMOUNTS OF SUGAR
PERMITTED TO BE BROUGHT INTO THE UNITED STATES FROM THE PHILIPPINES,
AND PROHIBITED SUCH IMPORTATION IN EXCESS OF PRESCRIBED QUOTAS.  THE
ACT OF JUNE 14, 1935, C. 240, 49 STAT. 340, 48 U.S.C. SEC. 1236A,
PROVIDED FOR RESTRICTION OF THE AMOUNT OF HARD FIBERS AND ITS PRODUCTS
WHICH COULD BE BROUGHT ANNUALLY FROM THE PHILIPPINES TO THE UNITED
STATES.  SEE ALSO 48 U.S.C. SEC. 1236.  AND THE INDEPENDENCE ACT,
SUPRA, 48 U.S.C. SEC. 1236(A)(B), ALSO REGULATED THE AMOUNT OF "EXPORT
TAX" WHICH MIGHT BE LEVIED BY THE PHILIPPINES ON ARTICLES SHIPPED TO
THE UNITED STATES FROM THE PHILIPPINE ISLANDS.  FN9 

THE INDEPENDENCE ACT, WHILE IT DID NOT RENDER THE PHILIPPINES FOREIGN
TERRITORY, CINCINNATI SOAP CO. V. UNITED STATES, SUPRA, 318-320, TREATS
THE PHILIPPINES AS A FOREIGN COUNTRY FOR CERTAIN PURPOSES.  IN 48
U.S.C. SEC. 1238(A)(1), IT ESTABLISHED IMMIGRATION QUOTAS FOR FILIPINOS
COMING TO THE UNITED STATES, AS IF THE PHILIPPINES WERE A SEPARATE
COUNTRY, AND IN THAT CONNECTION EXTENDED TO FILIPINOS THE IMMIGRATION
LAWS RELATING TO THE EXCLUSION OR EXPULSION OF ALIENS.  IT ALSO
PROVIDED, 48 U.S.C. SEC. 1238(A)(2), THAT CITIZENS OF THE PHILIPPINE
ISLANDS WHO ARE NOT CITIZENS OF THE UNITED STATES SHALL BE CONSIDERED
AS IF THEY WERE ALIENS.  FOR PURPOSES OF 8 U.S.C. SECS. 154 AND 156,
RELATING TO DEPORTATION, THE PHILIPPINE ISLANDS ARE DECLARED TO BE A
FOREIGN COUNTRY.  48 U.S.C. SEC. 1238(A)(4).  FOREIGN SERVICE OFFICERS
OF THE UNITED STATES MAY BE ASSIGNED TO THE PHILIPPINES, AND ARE TO BE
CONSIDERED AS STATIONED IN A FOREIGN COUNTRY.  48 U.S.C. SEC. 1238A. 
AND THE INDEPENDENCE ACT, SEC. 6, 48 STAT. 456, 460, PROVIDES THAT
"WHEN USED IN THIS SECTION IN A GEOGRAPHICAL SENSE, THE TERM 'UNITED
STATES' INCLUDES ALL TERRITORIES AND POSSESSIONS OF THE UNITED STATES,
EXCEPT THE PHILIPPINE ISLANDS, THE VIRGIN ISLANDS, AMERICAN SAMOA, AND
THE ISLAND OF GUAM."  AS WE HAVE SAID, THE PHILIPPINES HAVE FREQUENTLY
DEALT WITH OTHER COUNTRIES AS A SOVEREIGNTY DISTINCT FROM THE UNITED
STATES. 

THE UNITED STATES ACQUIRED THE PHILIPPINES BY CESSION WITHOUT
OBLIGATION TO ADMIT THEM TO STATEHOOD OR INCORPORATE THEM IN THE UNION
OF STATES OR TO MAKE THEM A PART OF THE UNITED STATES, AS DISTINGUISHED
FROM MERELY BELONGING TO IT.  AS WE HAVE SEEN, THEY ARE NOT A PART OF
THE UNITED STATES IN THE SENSE THAT THEY ARE SUBJECT TO AND ENJOY THE
BENEFITS OR PROTECTION OF THE CONSTITUTION, AS DO THE STATES WHICH ARE
UNITED BY AND UNDER IT.  IN PARTICULAR, THE CONSTITUTIONAL PROVISIONS
GOVERNING IMPORTS AND EXPORTS AND THEIR TAXATION, DO NOT EXTEND TO
ARTICLES BROUGHT INTO OR OUT OF THE PHILIPPINES.  THE SEVERAL ACTS OF
CONGRESS PROVIDING FOR THE GOVERNMENT OF THE PHILIPPINES HAVE NOT
ALTERED THEIR STATUS IN THESE RESPECTS, AND CONGRESSIONAL LEGISLATION
GOVERNING TRADE RELATIONS OF THE UNITED STATES WITH THE PHILIPPINES HAS
NOT ONLY BEEN CONSISTENT WITH THAT STATUS, BUT HAS OFTEN TREATED
ARTICLES BROUGHT FROM THE PHILIPPINES TO THE UNITED STATES AS IMPORTS. 
OUR TARIFF LAWS IN THEIR PRACTICAL OPERATION HAVE IN GENERAL PLACED
MERCHANDISE BROUGHT FROM THE PHILIPPINES INTO THE UNITED STATES IN THE
SAME RELATIONSHIP TO THE CONSTITUTIONAL TAXING POWER OF THE NATIONAL
GOVERNMENT AND THE STATES AS ARTICLES BROUGHT HERE FROM FOREIGN
COUNTRIES. 

THE NATIONAL CONCERN IN PROTECTING NATIONAL COMMERCIAL RELATIONS, BY
EXEMPTING IMPORTS FROM STATE TAXATION, WOULD SEEM NOT TO BE ESSENTIALLY
DIFFERENT OR LESS IN THE CASE OF MERCHANDISE BROUGHT FROM THE
PHILIPPINES, WHICH ARE NOT INCLUDED IN THE TERRITORY ORGANIZED UNDER
THE CONSTITUTION, BUT FOR WHICH WE HAVE ASSUMED A NATIONAL
RESPONSIBILITY, THAN IN THE CASE OF ARTICLES ORIGINATING ON THE HIGH
SEAS OR IN FOREIGN COUNTRIES.  AS WE HAVE SAID, THE REASONS FOR
PROTECTING FROM STATE TAXATION ARTICLES THUS BROUGHT INTO THE
TERRITORIAL UNITED STATES ARE THE SAME IN EITHER CASE.  THE ADVANTAGES
AND DISADVANTAGES, IF ANY, WHICH RESULT FROM THE TAX IMMUNITY, ARE
INHERENT IN THE IMPORT CLAUSE.  BUT THOSE ADVANTAGES AND DISADVANTAGES
IN THE CASE OF THE PHILIPPINES ARE NO MORE BEYOND THE REACH OF CONGRESS
THAN IN THE CASE OF OTHER IMPORTS.  CONGRESS IS LEFT FREE BY THE TERMS
OF THE IMPORT CLAUSE TO REMOVE THE PROHIBITION OF STATE TAXATION OF
IMPORTS AND WITH IT THE ADVANTAGES OR DISADVANTAGES, WHATEVER THEY MAY
BE, ARISING FROM THE TAX IMMUNITY.  CONGRESS, THROUGH THE COMMERCE
CLAUSE, POSSESSES THE SAME POWER OF CONTROL OF STATE TAXATION OF ALL
MERCHANDISE MOVING IN INTERSTATE OR FOREIGN COMMERCE.  AND CONGRESS IS
FREE, AS IN THE CASE OF OTHER IMPORTS, TO REGULATE THE FLOW OF
MERCHANDISE FROM THE PHILIPPINES INTO THE UNITED STATES BY THE
IMPOSITION OF EITHER CUSTOMS DUTIES OR INTERNAL REVENUE TAXES. 

WE CONCLUDE THAT PRACTICAL AS WELL AS THEORETICAL CONSIDERATIONS AND
THE STRUCTURE OF OUR CONSTITUTIONAL SYSTEM REQUIRE US TO HOLD THAT
ARTICLES BROUGHT FROM THE PHILIPPINES INTO THE UNITED STATES ARE
IMPORTS, SUBJECT TO THE CONSTITUTIONAL PROVISIONS RELATING TO IMPORTS
BOTH BECAUSE, AS WAS SAID IN BROWN V. MARYLAND, THEY ARE BROUGHT INTO
THE UNITED STATES, AND BECAUSE THE PLACE FROM WHENCE THEY ARE BROUGHT
IS NOT A PART OF THE UNITED STATES IN THE CONSTITUTIONAL SENSE TO WHICH
THE PROVISIONS WITH RESPECT TO IMPORTS ARE APPLICABLE.  REVERSED. 

FN1  THE SUPREME COURT OF WASHINGTON HAS HELD CONTRARY TO THE
DECISION OF THE OHIO COURT.  SEE WASHINGTON CHOCOLATE CO. V. KING
COUNTY, 21 WASH.2D 630, 152 P.2D 981. 

FN2  SEE MADISON, DEBATES IN THE FEDERAL CONVENTION OF 1787, AUGUST
28, 1787(HUNT & SCOTT ED.). 

FN3  SECTION 1483(1) OF 19 U.S.C. PROVIDES THAT MERCHANDISE IMPORTED
INTO THE UNITED STATES "SHALL BE HELD TO BE THE PROPERTY OF THE PERSON
TO WHOM THE SAME IS CONSIGNED."  WE DO NOT DEEM THIS PROVISION TO BE
SIGNIFICANT HERE, SINCE IT IS DESIGNED MERELY TO IDENTIFY THE PERSON
LIABLE FOR THE PAYMENT OF CUSTOMS DUTIES, AND SINCE, AS WE HAVE SAID,
THE TIME WHEN TITLE PASSES TO PETITIONER IS IMMATERIAL TO DECISION. 

FN4  IN THE WARING CASE, THE PURCHASER, CLAIMING TAX IMMUNITY AS THE
IMPORTER, PURCHASED THE MERCHANDISE, AFTER ITS SHIPMENT FROM ABROAD,
FROM THE AMERICAN CONSIGNEE, SOMETIMES BEFORE AND SOMETIMES AFTER ITS
ARRIVAL IN THE PORT OF ENTRY.  RISK OF LOSS WAS TO BE ON THE SELLER
UNTIL THE MERCHANDISE WAS ENTERED AT THE CUSTOMHOUSE AND DELIVERED FROM
THE VESSEL INTO THE PURCHASER'S LIGHTERS ALONGSIDE.  THE COURT THOUGHT
IT IMMATERIAL WHETHER THE PURCHASE CONTRACT WAS ENTERED INTO BEFORE OR
AFTER ARRIVAL.  SINCE THE RISK OF LOSS REMAINED ON THE SHIPPER UNTIL
THE CUSTOMHOUSE ENTRY AND DELIVERY TO THE PURCHASER, IT HELD THAT THE
SHIPPER OR THE CONSIGNEE WAS THE IMPORTER; THAT THE PURCHASER'S SALE OF
THE GOODS, WHICH WAS TAXED, WAS THE SECOND SALE AFTER IMPORTATION, AND
FOR THAT REASON WAS NOT FREE OF TAX.  IN THESE CIRCUMSTANCES IT IS
CLEAR THAT THE PURCHASER WAS NOT THE CAUSE OF THE IMPORTATION, THAT THE
PURCHASER HAD NO CONTROL OVER OR RIGHT TO DEMAND THE MERCHANDISE BEFORE
ARRIVAL IN PORT AND THAT THE FOREIGN SHIPPER, WHO BORE THE RISK OF LOSS
AND RETAINED CONTROL OF THE MERCHANDISE AND THE RIGHT TO CONTROL IT
UNTIL ITS DELIVERY TO PETITIONER, WAS THE IMPORTER. 

FN5  IN DOOLEY V. UNITED STATES, 183 U.S. 151, THE COURT SUSTAINED
UNDER THE FORAKER ACT OF APRIL 12, 1900, C. 191, 31 STAT. 77, THE LEVY
AND COLLECTION OF A TAX IN PUERTO RICO UPON GOODS BROUGHT THERE FROM
NEW YORK.  THE TAX WAS HELD TO BE A VALID EXERCISE OF THE POWER OF
CONGRESS TO ENACT LAWS FOR THE GOVERNMENT OF A DEPENDENCY ACQUIRED BY
TREATY, SEE DOWNES V. BIDWELL, 182 U.S. 244.  THE COURT STATED ALSO AS
AN ALTERNATIVE GROUND, BUT ONE UNNECESSARY FOR DECISION, THAT THE LEVY
WAS NOT A PROHIBITED TAX ON EXPORTS, SINCE PUERTO RICO WAS NOT A
FOREIGN COUNTRY. 

FN6  SEE LANGDELL, "THE STATUS OF OUR NEW TERRITORIES," 12 HARV. L.
REV. 365, 371; SEE ALSO THAYER, "OUR NEW POSSESSIONS," 12 HARV. L. REV.
464; THAYER, "THE INSULAR TARIFF CASES IN THE SUPREME COURT," 15 HARV.
L. REV. 164; LITTLEFIELD, "THE INSULAR CASES," 15 HARV. L. REV. 169,
281. 

FN7  SINCE THE WAR WITH JAPAN AND THAT COUNTRY'S TEMPORARY OCCUPATION
OF THE PHILIPPINES, CONGRESS HAS PROVIDED THAT THE DATE OF THE
INDEPENDENCE OF THE PHILIPPINES MAY BE ADVANCED BY THE PRESIDENT OF THE
UNITED STATES, UPON HIS PROCLAMATION OF THEIR LIBERATION AND THE
RESTORATION OF THE NORMAL FUNCTIONS OF GOVERNMENT.  ACT OF JUNE 29,
1944, C. 322, 58 STAT. 625. 

FN8  THE PHILIPPINE COMMONWEALTH PARTICIPATED AS A SIGNATORY IN THE
FOLLOWING:  AGREEMENT AND PROTOCOL REGARDING PRODUCTION AND MARKETING
OF SUGAR OF MAY 6, 1937; UNIVERSAL POSTAL CONVENTION OF MAY 23, 1939;
DECLARATION BY UNITED NATIONS OF JANUARY 1, 1942(THE PHILIPPINES SIGNED
THE DECLARATION ON JUNE 14, 1942); AGREEMENT FOR UNITED NATIONS RELIEF
AND REHABILITATION ADMINISTRATION OF NOVEMBER 9, 1943; UNITED NATIONS
MONETARY AND FINANCIAL CONFERENCE AT BRETTON WOODS, NEW HAMPSHIRE, OF
JULY 1 TO 22, 1944; THE PROTOCOL PROLONGING THE INTERNATIONAL AGREEMENT
REGARDING THE REGULATION OF PRODUCTION AND MARKETING OF SUGAR OF AUGUST
31, 1944; THE INTERNATIONAL CIVIL AVIATION CONFERENCE OF NOVEMBER 1 TO
DECEMBER 7, 1944. 

FN9  THIS COURT HAS REFERRED TO GOODS BROUGHT HERE FROM THE
PHILIPPINES AS "IMPORTS."  SEE CINCINNATI SOAP CO. V. UNITED STATES,
301 U.S. 308, 320. 

MR. JUSTICE REED, DISSENTING IN PART. 

MY DISAGREEMENT WITH THE COURT IS CONFINED TO THAT PORTION OF THE
OPINION WHICH DETERMINES THAT THE PHILIPPINE ISLANDS IS NOT A PART OF
THIS "COUNTRY" AS THAT WORD IS DEFINED IN THE OPINION. 

THE PRACTICAL EFFECT OF THE DECISION IS TO PLACE THE PRODUCTS OF
THOSE TERRITORIES AND POSSESSIONS WHICH HAVE NOT BEEN INCORPORATED INTO
OUR "COUNTRY" AS INTEGRAL PARTS THEREOF - PUERTO RICO, THE PHILIPPINES,
GUAM, CANAL ZONE, AND PERHAPS OTHER TERRITORIES OR POSSESSIONS - AT A
CONSIDERABLE ADVANTAGE OVER THE COMPETING PRODUCTS OF STATES OF THE
CONTINENTAL UNITED STATES.  IT ENABLES IMPORTERS, WHETHER FOR
MANUFACTURE OR SALE, FROM THESE POSSESSIONS TO KEEP ON HAND, TAX FREE,
QUANTITIES OF NON-TAXABLE ORIGINAL PACKAGES OF IMPORTED GOODS, SUCH AS
CLOTHING, EMBROIDERIES, LIQUORS, TOBACCO, SUGARS, VEGETABLE OILS AND
FIBRES.  FREEDOM FROM TAXATION HAS TODAY BECOME AN APPRECIABLE
ADVANTAGE.  FURTHERMORE THIS FREEDOM FROM STATE TAXATION IS GAINED
THROUGH AN INTERPRETATION OF CONSTITUTIONAL POWER AND THEREFORE IS
BEYOND THE REACH OF EQUALIZATION BY THE STATES ALONE IN ALL
CIRCUMSTANCES AND BY THE CONGRESS EXCEPT BY COMPLEX TARIFF LEGISLATION
WHICH WOULD ONLY REACH WAREHOUSED IMPORTS FROM DEPENDENCIES.  THE
CONGRESSIONAL RELIEF TO PRODUCERS OF THE SEVERAL STATES OF THE UNION,
THEREFORE, IS AN AWKWARD APPROACH, WHICH WILL CREATE IRRITATION WITH
THE IMPORTING TERRITORIES BY REASON OF COUNTERVAILING TARIFF
INCREASES. 

THESE ARE ONLY PRACTICAL DISADVANTAGES OF TODAY'S DECISION WHICH
SHOULD NOT OVERRIDE A CONSTITUTIONAL REQUIREMENT; BUT AS IT DOES NOT
SEEM TO ME THE CONSTITUTION CLEARLY CALLS FOR THIS SACRIFICE OF MARKETS
BY PRODUCERS IN THE STATES, I WOULD NOT CONSTRUE THE CONSTITUTION TO
PUT THE PHILIPPINES ENTIRELY BEYOND THE PALE OF THE AMERICAN ECONOMIC
UNION.  I DO NOT SEE THE NECESSITY FOR SUCH A RULING AND, IN FACT, I
THINK THE CONSTITUTION CALLS FOR PRECISELY THE OPPOSITE CONCLUSION FOR
THE FOLLOWING REASONS. 

(1)  IN THE CONSIDERATION OF THE TAXABILITY BY OHIO OF SHIPMENTS FROM
THE PHILIPPINES WHICH HAVE COMPLETED THEIR JOURNEY FROM THE PHILIPPINES
BUT REMAIN INTACT IN THEIR ORIGINAL PACKAGES, THE SIGNIFICANT
CONSTITUTIONAL PROVISION IS ARTICLE I, SEC. 10, CLAUSE 2, WHICH READS
AS FOLLOWS: 

"NO STATE SHALL, WITHOUT THE CONSENT OF THE CONGRESS, LAY ANY IMPOSTS
OR DUTIES ON IMPORTS OR EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY
NECESSARY FOR EXECUTING IT'S INSPECTION LAWS:  AND THE NET PRODUCE OF
ALL DUTIES AND IMPOSTS, LAID BY ANY STATE ON IMPORTS OR EXPORTS, SHALL
BE FOR THE USE OF THE TREASURY OF THE UNITED STATES; AND ALL SUCH LAWS
SHALL BE SUBJECT TO THE REVISION AND CONTROUL OF THE CONGRESS." 

THE CONSTITUTION CONTAINS NO DEFINITION OF THE WORD "IMPORTS" AND
NOTHING APPEARS IN ITS HISTORY OR IN THE DECISIONS OF THIS COURT WHICH
INDICATES THAT THE WORD WAS USED OTHERWISE IN THIS SECTION THAN IN ITS
NORMAL MEANING OF A THING BROUGHT INTO THE LIMITS OF THE NATION WHICH
POSSESSES POWER OVER THE EXTERNAL COMMERCE WHICH MAY FLOW INTO A STATE
OR STATES WHICH ARE SUBJECT TO THE PROHIBITION OF THE QUOTED
CONSTITUTIONAL PROVISION.  NORMALLY THESE IMPORTS ARE FROM FOREIGN
COUNTRIES AND HENCE THERE ARE MANY REFERENCES TO IMPORTS IN LEGISLATION
AND DECISIONS WHICH INDICATE THAT THE SOURCE OF IMPORTS IS FOREIGN
COUNTRIES.  FN1    LANDS ARE EITHER WITHIN THE SOVEREIGN POWER OF THE
UNITED STATES OR ARE OUTSIDE AND BEYOND THAT POWER.  WHEN CONQUEST
RIPENS INTO CESSION, LANDS LOSE THEIR FOREIGN CHARACTER AND BECOME A
PART OF THE TERRITORIES OF THE VICTOR.  FN2  THE UNITED STATES HAS BEEN
CONTENT TO LEAVE ITS POSSESSIONS WITH A LARGE MEASURE OF SELF
GOVERNMENT.  TO THE PHILIPPINES IT HAS PROMISED FULL INDEPENDENCE BUT
THE TIME FOR FULFILLMENT OF THAT PROMISE HAS NOT ARRIVED.  UNTIL THAT
DATE, THE UNITED STATES HAS RESPONSIBILITIES TOWARD THE PHILIPPINES AND
HAS EXERCISED POWER UNILATERALLY TO MAKE FURTHER CONCESSIONS TO THE
ISLANDS.  FN3  UNTIL COMPLETE INDEPENDENCE IS REACHED, THE CITIZENS OF
THE PHILIPPINES OWE ALLEGIANCE TO THE UNITED STATES AND EVERY
PHILIPPINE OFFICIAL RECOGNIZES THIS DUTY.  48 STAT. 456.  THE
INTERRELATION BETWEEN THE UNITED STATES AND THE PHILIPPINES IS FOR BOTH
A BASIS FOR AMICABLE RELATIONS AFTER COMPLETE DISSOLUTION OF THE
EXISTING TIES.  FN4 

(2)  THIS COURT, HOWEVER, DETERMINES THAT AN IMPORT UNDER ARTICLE I,
SEC. 10, CLAUSE 2, IS A COMMODITY BROUGHT INTO THIS "COUNTRY" AND THAT
THE PHILIPPINES IS NOT A PART OF THIS "COUNTRY" WITHIN THE MEANING
WHICH THE COURT ATTRIBUTES TO THAT WORD.  THE COURT IS OF THE VIEW THAT
THIS "COUNTRY" INCLUDES ONLY THOSE SECTIONS OF THE LANDS UNDER OUR
JURISDICTION WHICH HAVE BEEN SO INCORPORATED INTO OUR SYSTEM BY ACT OF
CONGRESS AS TO BE ENTITLED TO GOVERNMENT UNDER ALL PROVISIONS OF THE
CONSTITUTION RATHER THAN BY CLAUSE 2, SEC. 3, ARTICLE IV, REGARDING
"TERRITORY ...  BELONGING TO THE UNITED STATES."  DOWNES V. BIDWELL,
182 U.S. 244.  AS A BASIS FOR THIS DISTINCTION, THE COURT DEPENDS UPON
A STATEMENT IN BROWN V. MARYLAND, 12 WHEAT.  AT 437, THAT A "DUTY ON
IMPORTS IS A CUSTOM OR A TAX LEVIED ON ARTICLES BROUGHT INTO A
COUNTRY."  THE COURT MUST MAKE THIS ARGUMENT TO SUPPORT ITS POSITION AS
OF COURSE THE PHILIPPINES IS NOT A FOREIGN COUNTRY.  CINCINNATI SOAP
CO. V. UNITED STATES, 301 U.S. 308, 319. 

THERE ARE A NUMBER OF REASONS WHY I THINK THAT THIS RELIANCE ON THIS
LANGUAGE OF BROWN V. MARYLAND LEAVES THE OPINION WITHOUT SUPPORT IN ITS
CONCLUSION THAT SHIPMENTS FROM THE PHILIPPINES ARE IMPORTS.  IN THE
FIRST PLACE, IN BROWN V. MARYLAND, THERE WAS NO OCCASION TO DISTINGUISH
BETWEEN ARTICLES BROUGHT INTO THE COUNTRY AND ARTICLES BROUGHT FROM
FOREIGN PLACES.  THE WORDS USED ARE DESCRIPTIVE OF COMMERCE FROM
FOREIGN LANDS.  SECONDLY, WOODRUFF V. PARHAM, 8 WALL.  123, INTERPRETS
THE MEANING OF "BROUGHT INTO THE COUNTRY" AS USED IN BROWN V. MARYLAND
AS FOLLOWS, PP. 131-32: 

"IN THE CASE OF BROWN V. MARYLAND, THE WORD IMPORTS, AS USED IN THE
CLAUSE NOW UNDER CONSIDERATION, IS DEFINED, BOTH ON THE AUTHORITY OF
THE LEXICONS AND OF USAGE, TO BE ARTICLES BROUGHT INTO THE COUNTRY; AND
IMPOST IS THERE SAID TO BE A DUTY, CUSTOM, OR TAX LEVIED ON ARTICLES
BROUGHT INTO THE COUNTRY.  IN THE ORDINARY USE OF THESE TERMS AT THIS
DAY, NO ONE WOULD, FOR A MOMENT, THINK OF THEM AS HAVING RELATION TO
ANY OTHER ARTICLES THAN THOSE BROUGHT FROM A COUNTRY FOREIGN TO THE
UNITED STATES, AND AT THE TIME THE CASE OF BROWN V. MARYLAND WAS
DECIDED - NAMELY, IN 1827 - IT IS REASONABLE TO SUPPOSE THAT THE
GENERAL USAGE WAS THE SAME, AND THAT IN DEFINING IMPORTS AS ARTICLES
BROUGHT INTO THE COUNTRY, THE CHIEF JUSTICE USED THE WORD COUNTRY AS A
SYNONYME FOR UNITED STATES." 

SEE ALSO AMERICAN STEEL & WIRE CO. V. SPEED, 192 U.S. 500, 520. 
THIRDLY, THE WRITER OF THE OPINION IN BROWN V. MARYLAND REFERRED, P.
439, TO THE PURPOSE OF THE PROHIBITION AGAINST STATE TAXATION OF
IMPORTS AS A THING DESIRABLE "TO PRESERVE  ...  OUR COMMERCIAL
CONNEXIONS WITH FOREIGN NATIONS."  THE DISSENT REFERRED REPEATEDLY TO
FOREIGN MERCHANDISE AS DID COUNSEL IN THEIR ARGUMENT.  FOURTHLY, THE
SUGGESTION THAT THE COURT'S VIEW IS SUPPORTED BY THE DECISIONS THAT SEA
PRODUCTS ARE IMPORTS SEEMS TO ME UNFOUNDED.  DEEP-SEA PRODUCTS COME
FROM WATERS BEYOND THE NATIONAL SOVEREIGNTY OR JURISDICTION AND HENCE
ARE IMPORTS UNDER ANY DEFINITION.  AMERICAN FISHERIES EVEN MAY REQUIRE,
UNLESS AMERICAN BOTTOMS ARE AMERICAN TERRITORY, LEGISLATION TO RELIEVE
THEIR CATCH OF GENERAL TARIFF CHARGES.  PROCTER & GAMBLE MFG. CO. V.
UNITED STATES, 19 C.C.P.A. (CUSTOMS) 415.  THE REQUIRED CONCLUSION, IT
SEEMS TO ME, IS THAT AN IMPORT IS AN ARTICLE BROUGHT FROM BEYOND THE
SOVEREIGNTY OR JURISDICTION OF THE UNITED STATES.  DE LIMA V. BIDWELL,
182 U.S. 1, 180. 

(3)  LAND WITHIN THE JURISDICTION OF THE UNITED STATES CANNOT EXPORT
TO THE UNITED STATES UNDER SEC. 10, ARTICLE I, ANY MORE THAN ONE STATE
CAN EXPORT TO OR IMPORT FROM ANOTHER STATE.  192 U.S. AT 520.  WHEN THE
INSULAR CASES DETERMINED THAT ARTICLES FROM THE LANDS SPAIN CEDED TO US
WERE SUBJECT TO TARIFF DUTIES AT THE WILL OF CONGRESS, THE DECISIONS
WERE BASED ON THE POWER OF CONGRESS TO IMPOSE DUTIES UNEQUALLY, I E.,
WITHOUT UNIFORMITY, DESPITE ARTICLE I, SEC. 8, CLAUSE 1, OF THE
CONSTITUTION,  FN5  ON COMMODITIES FROM LANDS UNDER OUR FLAG BECAUSE
THESE LANDS HAD NOT BEEN INCORPORATED BY ACT OF CONGRESS INTO THE UNION
AS AN INTEGRAL PART OF THE UNITED STATES.  DOWNES V. BIDWELL, 182 U.S.
244, 298 ET SEQ.; DORR V. UNITED STATES, 195 U.S. 138, 149; BALZAC V.
PORTO RICO, 258 U.S. 298, 305.  THE QUESTION AS TO THE MEANING OF
IMPORTS OR IMPORTED WAS NOT DISCUSSED.  WHETHER OR NOT THE ARTICLES
WERE IMPORTS, SO LONG AS THE LANDS OF THEIR ORIGIN WERE NOT AN INTEGRAL
PART OF THE UNITED STATES, THE CONGRESS COULD PUT SUCH DUTIES AS IT
CHOSE ON THE PRODUCTS.  IT DOES NOT FOLLOW THAT BECAUSE THE PHILIPPINES
IS NOT AN INTEGRAL PART OF THE UNITED STATES ITS SHIPMENTS ARE IMPORTS
UNDER ARTICLE I, SEC. 10, UNLESS THE VIEW OF THE COURT'S OPINION OF
TODAY IS ADOPTED THAT AN IMPORT IS AN ARTICLE BROUGHT INTO THE UNITED
STATES AS THAT COUNTRY IS DEFINED IN THE COURT'S OPINION.  THE ARGUMENT
ADVANCED BY THE COURT TO SUSTAIN ITS DECLARATION THAT THE ARTICLES
BROUGHT FROM THE PHILIPPINES ARE IMPORTS WOULD HAVE MADE SHIPMENTS FROM
THE LOUISIANA PURCHASE, DOWNES V. BIDWELL, 182 U.S. 244, 322-33;
FLORIDA, ID. PP. 333-34, AND HAWAII, HAWAII V. MANKICHI, 190 U.S. 197,
219, ALSO IMPORTS UNTIL THESE TERRITORIES WERE INCORPORATED INTO THE
UNITED STATES.  HISTORY REFUTES SUCH A POSITION. 

WE ARE THUS LEFT TO DEFINE THE WORD IMPORT AS USED IN SEC. 10,
ARTICLE I, IN ITS NORMAL SENSE TO ACCOMPLISH THE PURPOSE OF THE
AT P. 439.  WHETHER IT WAS TO GRANT THE UNION A SOURCE OF REVENUE, TO
PRESERVE HARMONY AMONG ITS MEMBERS OR TO AVOID STATE TARIFFS WHICH
WOULD AFFECT RELATIONS WITH FOREIGN GOVERNMENTS, THE PURPOSE IS NOT
ADVANCED BY MOLDING PHILIPPINE SHIPMENTS INTO IMPORTS IN THE
CONSTITUTIONAL SENSE.  REVENUE MAY BE EXACTED BY THE FEDERAL GOVERNMENT
FROM PHILIPPINE PRODUCTS BROUGHT INTO THE STATES AND A STATE CANNOT
COLLECT A DUTY FROM SUCH ARTICLES IF THEY ARE NOT IMPORTS.  DOWNES V.
BIDWELL, 182 U.S. 244; WOODRUFF V. PARHAM, 8 WALL.  123, 133; COE V.
ERROL, 116 U.S. 517, 526.  NO LIGHT CAN COME FROM THE HISTORY OF THE
ADOPTION OF THE SECTION.  THE IDEA OF AN AMERICAN POSSESSION WAS NOT IN
BEING.  BUT SINCE THE FOUNDING FATHERS WERE CREATING A COMMERCIAL AS
WELL AS A POLITICAL ENTITY, IT SEEMS MORE CONSONANT WITH THEIR PURPOSE
TO DEFINE IMPORTS UNDER THE SECTION AS THINGS BROUGHT INTO THE
TERRITORY UNDER THE JURISDICTION OR SOVEREIGNTY OF THE AMERICAN
GOVERNMENT. 

(4)  SUCH A CONCLUSION PROBABLY MEANT LITTLE TO THE PHILIPPINES. 
CONGRESS HAS PROVIDED FOR THEIR EARLY INDEPENDENCE.  BUT THE PRINCIPLE
ESTABLISHED BY THIS DECISION WILL PERSIST FOR THE OTHER LANDS WHICH
BECAME AMERICAN BY THE TREATY OF PARIS.  THE COURT'S OPINION DISCLAIMS
DETERMINATION OF ANY RIGHTS BEYOND THE PHILIPPINES BUT THE BASIS UPON
WHICH THE DECISION RESTS SUPPORTS SIMILAR RIGHTS FOR ALL LANDS COVERED
BY THE TREATY OF PARIS.  SIMILAR ARTICLES COVERED ALL THE CEDED LANDS. 
FN6  PUERTO RICO IS IN THE SAME STATUS AS THE PHILIPPINES.  BALZAC V.
PORTO RICO, 258 U.S. 298, 305.  TODAY'S DECISION THUS ASSUMES A
CONTINUING IMPORTANCE WHICH JUSTIFIES SETTING OUT MY REASONS FOR
DISSENTING. 

FN1  PRODUCTS OF THE SEA BROUGHT IN AS IMPORTS ARE A MINOR
VARIATION. 

TARIFF ACT OF 1930, 46 STAT. 590, PROVIDES THAT DUTIABLE ARTICLES ARE
THOSE "IMPORTED FROM ANY FOREIGN COUNTRY."  THE PHILIPPINES IS NOT A
FOREIGN COUNTRY UNDER A TARIFF ACT WHICH PROHIBITS IMPORTATION FROM A
FOREIGN COUNTRY OF GOODS MADE BY CONVICT LABOR.  28 OP. ATTY. GEN.
422.  THE PHILIPPINES IS NOT FOREIGN COUNTRY UNDER THE TARIFF LAWS.  DE
LIMA V. BIDWELL, 182 U.S. 1, 197; FOURTEEN DIAMOND RINGS V. UNITED
STATES, 183 U.S. 176; DOOLEY V. UNITED STATES, 182 U.S. 222, 234;
DOOLEY V. UNITED STATES, 183 U.S. 151; AMERICAN STEEL & WIRE CO. V.
SPEED, 192 U.S. 500, 520. 

FN2  AMERICAN INSURANCE CO. V. CANTER, 1 PET. 511, 542; FLEMING V.
PAGE, 9 HOW.  603, 614; DOOLEY V. UNITED STATES, 182 U.S. 222, 223. 

FN3  PHILIPPINE INDEPENDENCE ACT OF MARCH 24, 1934, 48 STAT. 456;
AMENDING THE PHILIPPINE INDEPENDENCE ACT AS TO TRADE AND FINANCIAL
RELATIONS AND RIGHTS OF PHILIPPINE CITIZENS IN THE UNITED STATES AND
ALL PLACES SUBJECT TO ITS JURISDICTION, ACT OF AUGUST 7, 1939, 53 STAT.
1226; SUSPENDING THE EXPORT TAX ON PHILIPPINE PRODUCTS, ACT OF DECEMBER
22, 1941, 55 STAT. 852; FILIPINO REHABILITATION COMMISSION ACT OF JUNE
29, 1944, 58 STAT. 626. 

FN4  ADDRESS OF PRESIDENT SERGIO OSMENA ON THE OCCASION OF THE
REESTABLISHMENT OF THE COMMONWEALTH GOVERNMENT IN MANILA, FEBRUARY 27,
1945. 

FN5  ARTICLE I, SEC. 8, CLAUSE 1:  "THE CONGRESS SHALL HAVE POWER TO
LAY AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES, TO PAY THE DEBTS
AND PROVIDE FOR THE COMMON DEFENCE AND GENERAL WELFARE OF THE UNITED
STATES; BUT ALL DUTIES, IMPOSTS AND EXCISES SHALL BE UNIFORM THROUGHOUT
THE UNITED STATES; ..." 

FN6  TREATY OF PARIS, DECEMBER 10, 1898, 30 STAT. 1754: 

"ARTICLE II. SPAIN CEDES TO THE UNITED STATES THE ISLAND OF PORTO
RICO AND OTHER ISLANDS NOW UNDER SPANISH SOVEREIGNTY IN THE WEST
INDIES, AND THE ISLAND OF GUAM IN THE MARIANAS OR LADRONES. 

"ARTICLE III.  SPAIN CEDES TO THE UNITED STATES THE ARCHIPELAGO KNOWN
AS THE PHILIPPINE ISLANDS, AND COMPREHENDING THE ISLANDS LYING WITHIN
THE FOLLOWING LINE:..." 

MR. JUSTICE BLACK, DISSENTING. 

IN BROWN V. MARYLAND, 12 WHEAT.  419, 442, MARSHALL, C.J., POINTEDLY
REJECTED THE ARGUMENT THAT THE RULE ANNOUNCED IN THAT CASE WOULD PERMIT
AN IMPORTER "TO BRING IN GOODS  ...  FOR HIS OWN USE, AND THUS RETAIN
MUCH VALUABLE PROPERTY EXEMPT FROM TAXATION."  FN1  TODAY, THIS COURT,
IN HOLDING THAT AN OHIO MANUFACTURER MAY ESCAPE PAYMENT OF A NON
DISCRIMINATORY STATE AD VALOREM TAX ON GOODS IMPORTED FROM ABROAD AND
HELD FOR USE IN ITS FACTORY, INTERPRETS MARSHALL'S OPINION IN A MANNER
WHICH SQUARELY CONFLICTS WITH HIS OWN INTERPRETATION OF THE RULE HE
ANNOUNCED. 

IT HAS, FROM THE VERY BEGINNING, BEEN RECOGNIZED THAT "...  THERE
MUST BE A POINT OF TIME WHEN THE PROHIBITION (TO TAX) CEASES, AND THE
POWER OF THE STATE TO TAX COMMENCES"; ALTHOUGH THE TASK OF DRAWING THIS
LINE IS SO DIFFICULT THAT NO GENERAL RULE "UNIVERSAL IN ITS
APPLICATION" CAN BE STATED, YET THAT LINE NEVERTHELESS "...  EXISTS,
AND MUST BE MARKED AS THE CASES ARISE."  BROWN V. MARYLAND, SUPRA,
441.  THE COURT DID THERE DRAW AN ARBITRARY LINE OF DEMARCATION MARKING
THE BOUNDARY OF A STATE'S POWER TO TAX PROPERTY "IMPORTED FOR SALE." 
IT HELD THAT, AS TO PROPERTY IMPORTED FOR SALE, "WHILE REMAINING THE
PROPERTY OF THE IMPORTER, IN HIS WAREHOUSE, IN THE ORIGINAL FORM OR
PACKAGE IN WHICH IT WAS IMPORTED, A TAX UPON IT IS TOO PLAINLY A DUTY
ON IMPORTS TO ESCAPE THE PROHIBITION IN THE CONSTITUTION."  BROWN V.
MARYLAND, SUPRA, AT 442.  THE RIGHT TO SELL, IT WAS THERE SAID, WAS AN
ELEMENT OF THE RIGHT TO IMPORT, AND THUS A STATE TAX IMPOSED BEFORE, OR
AS A CONDITION UPON, THE SALE, WOULD SUBSTANTIALLY IMPAIR THE RIGHT OF
SALE GRANTED BY THE GOVERNMENT TO IMPORTERS.  THE COURT REINFORCED ITS
CONCLUSION BY REFERRING TO ITS BELIEF THAT A STATE TAX ON THE IMPORTER
WOULD INCREASE THE COST TO THE ULTIMATE DOMESTIC PURCHASERS, AND THAT
THE EFFECT OF THIS WOULD BE TO ENABLE THE GREAT SEAPORT STATES
INDIRECTLY TO LEVY TRIBUTE UPON CONSUMERS OF IMPORTED ARTICLES LIVING
IN THE NONSEAPORT STATES, A PRACTICE WHICH THE CONSTITUTIONAL CLAUSE
HERE INVOKED WAS INTENDED TO PREVENT.  FN2 

WHILE THE RULE ANNOUNCED IN BROWN V. MARYLAND HAS AT TIMES BEEN
SEVERELY CRITICIZED, SEE E.G. LICENSE CASES, 5 HOW.  504, OPINION OF
MR. JUSTICE DANIEL, 615-617, AND HAS IN SOME CASES BEEN NARROWLY
RESTRICTED IN ITS APPLICATION,  FN3  IT HAS BEEN, AND STILL IS, THE
GENERAL RULE OF DECISION IN THIS COURT, AS REGARDS IMPORTS FOR SALE
FROM FOREIGN COUNTRIES.  BUT NEITHER THE RULE NOR THE REASONING IN
BROWN V. MARYLAND, NOR ANY OF THE CASES WHICH FOLLOWED IT, SUPPORT THE
COURT'S HOLDING THAT ONE WHO IMPORTS AN ARTICLE FOR HIS OWN USE OR
CONSUMPTION CAN ENJOY THE FULL BENEFITS OF OWNERSHIP, AND
SIMULTANEOUSLY CLAIM AN IMMUNITY FROM STATE TAXATION ON THE GROUND THAT
IT IS STILL AN IMPORT.  THE COURT, IN BROWN V. MARYLAND, WAS IN REALITY
TREATING GOODS IN THE HANDS OF AN IMPORTER FOR SALE, AS THOUGH THEY
WERE STILL IN TRANSIT UNTIL THE FIRST SALE HAD BEEN MADE.  THIS WAS IN
ACCORD WITH THE INTERPRETATION OF THE RULE BY CHIEF JUSTICE TANEY IN
THE LICENSE CASES, SUPRA, 575.  HE THERE SAID THAT WHILE IMPORTED
ARTICLES "ARE IN THE HANDS OF THE IMPORTER FOR SALE  ...  THEY MAY BE
REGARDED AS MERELY IN TRANSITU, AND ON THEIR WAY TO THE DISTANT CITIES,
VILLAGES AND COUNTRY FOR WHICH THEY ARE DESTINED, AND WHERE THEY ARE
EXPECTED TO BE USED AND CONSUMED, AND FOR THE SUPPLY OF WHICH THEY WERE
IN TRUTH IMPORTED."    BUT THE FIBERS HERE WERE NOT IN TRANSITU IN ANY
POSSIBLE SENSE OF THE PHRASE.  EVERY CONCEIVABLE RELATIONSHIP THEY HAD
ONCE BORNE TO THE PROCESS OF IMPORTATION HAD ENDED.  THEY WERE AT REST
IN THE PETITIONER'S FACTORY ALONG WITH ITS OTHER RAW MATERIALS, HAVING
ARRIVED AT THE POINT WHERE THEY WERE "TO BE USED AND CONSUMED" IN
CURRENT PRODUCTION, AND KEPT AS A "BACKLOG" TO ASSURE CONSTANT
OPERATION OF THE PLANT. 

BROWN V. MARYLAND AND THE CASES WHICH FOLLOWED IT STAND FOR THE RULE
THAT ONE WHO PAYS IMPORT DUTIES ON GOODS INTENDED FOR SALE THEREBY
PURCHASES THE RIGHT TO SELL THE GOODS, FREE FROM STATE TAXATION SO LONG
AS THE GOODS ARE HELD IN THE ORIGINAL PACKAGE.  UNTIL TODAY, NONE OF
THIS COURT'S DECISIONS HAVE EVER HELD OR EVEN INTIMATED THAT ONE WHO
IMPORTS GOODS FOR HIS OWN USE PURCHASES FROM THE FEDERAL GOVERNMENT, BY
PAYMENT OF IMPORT DUTIES, A RIGHT TO HOLD THEM FREE FROM LIABILITY FOR
STATE TAXES, AFTER THEY HAVE REACHED THE END OF THEIR IMPORT JOURNEY
AND ARE BEING HELD FOR USE IN THE IMPORTER'S FACTORY.  NEITHER THE
"PURCHASE-OF-A-RIGHT-TO-SELL" ARGUMENT NOR ANY OF THE OTHER REASONS
DEEMED RELEVANT TO SUPPORT THE "IMPORT-FOR-SALE-ORIGINAL-PACKAGE"
DOCTRINE CALL FOR ITS EXTENSION TO GOODS IMPORTED FOR USE. 

IT IS CLEAR UNDER THE DOCTRINE OF BROWN V. MARYLAND, THAT AFTER SALE
BY AN IMPORTER, IMPORTED GOODS ARE SUBJECT TO STATE TAXATION.  THE
OPINION OF THE COURT TODAY, HOLDING THAT GOODS HELD FOR USE ARE IMMUNE
FROM STATE TAXATION, RESULTS IN THIS RATHER ODD SITUATION:  ONE WHO
IMPORTS GOODS HIMSELF AND HOLDS THEM FOR HIS OWN USE IN HIS FACTORY IS
NOT LIABLE TO STATE TAXES ON SUCH GOODS; BUT IF HE BOUGHT THE GOODS
FROM ONE ENGAGED IN THE BUSINESS OF IMPORTING, HE WOULD BE LIABLE TO
TAXATION ON THE SAME GOODS.  THE ARTIFICIALITY OF THIS TAX DISTINCTION
SUGGESTS GRAVE REASONS TO QUESTION THE SOUNDNESS OF THE COURT'S
INTERPRETATION OF THE RULE.  FURTHERMORE, IMPLICIT IN MARSHALL'S
OPINION IS A RECOGNITION OF THE IMPORTANCE OF PROTECTING GOODS IMPORTED
FOR SALE FROM DISCRIMINATION IN THE FORM OF TAXES.  THE NET EFFECT OF
TODAY'S OPINION IS TO ACCOMPLISH JUST SUCH DISCRIMINATION, IN FAVOR OF
GOODS IMPORTED FOR USE, AND AGAINST GOODS IMPORTED FOR SALE. 

AGAIN, STATE TAXATION OF PREVIOUSLY IMPORTED GOODS HELD FOR USE IN
MANUFACTURING DOES NOT AFFORD THE GREAT SEAPORT STATES AN OPPORTUNITY
TO TAX IMPORTS TO THE DETRIMENT OF OTHER STATES.  THIS WAS ONE OF THE
APPREHENDED EVILS WHICH THE "IMPORT FOR SALE" RULE IN BROWN V. MARYLAND
WAS FASHIONED TO PREVENT.  THE MOST FERTILE IMAGINATION WOULD BE HARD
PUT TO PROVE THAT IT WOULD INJURE OR THREATEN ANY OTHER STATE FOR OHIO
TO COLLECT ITS NON-DISCRIMINATORY AD VALOREM TAX ON FIBERS HELD FOR USE
IN THAT STATE.  CERTAINLY THE COURT ADVANCES NO PERSUASIVE ARGUMENT IN
THIS RESPECT.  ON THE CONTRARY, IT DOES APPEAR THAT OHIO, AS WELL AS
OTHER STATES, WILL BE INJURED BY A CONSTITUTIONAL INTERPRETATION WHICH
DENIES OHIO THE RIGHT TO COLLECT THE TAX.  OHIO IS INJURED BY THE
COURT'S NEW RULE BECAUSE IT CANNOT APPORTION ITS TAX FAIRLY UPON ALL
WHO CARRY ON BUSINESS UNDER THE PROTECTION OF OHIO'S LAWS. 

THE RULE ANNOUNCED BY THE COURT ALSO DISCRIMINATES AGAINST OTHER
STATES.  THEIR PRODUCTS HELD FOR USE ARE SUBJECT TO STATE TAXATION. 
PRODUCTS FROM ABROAD ARE NOT.  WINES OFFER AN ILLUSTRATION.  WINES,
STOCKED IN ONE'S PRIVATE CELLAR, PRODUCED FROM CALIFORNIA OR NEW YORK
GRAPES, AND HELD FOR FUTURE USE IN THE ORIGINAL PACKAGE OR OTHERWISE,
ARE SUBJECT TO STATE TAXATION.  TODAY'S RULE RENDERS A STATE WHOLLY
POWERLESS TO TAX WINES IMPORTED FROM ABROAD AND HELD FOR FUTURE USE
SIDE BY SIDE WITH TAXABLE WINES MADE IN THE UNITED STATES.  THUS,
THROUGH CONSTITUTIONAL INTERPRETATION, ALL FOREIGN PRODUCTS ARE GRANTED
A TAX SUBSIDY AT THE EXPENSE OF THE INDIVIDUAL STATES AFFECTED.  IF I
THOUGHT THE CONSTITUTION REQUIRED SUCH TAX DISCRIMINATIONS AGAINST
AMERICAN PRODUCTS, I SHOULD AGREE TO THE COURT'S OPINION.  THE WHOLE
HISTORY OF EVENTS LEADING UP TO THE CONSTITUTION, AND THIS COURT'S
OPINIONS IN CONSTRUING IT, PERSUADE ME THAT NO SUCH CONSEQUENCE WAS
EVER CONTEMPLATED BY THOSE WHO WROTE OR APPROVED OUR CONSTITUTION. 

A FINAL WORD AS TO TODAY'S NEW CONSTITUTIONAL DOCTRINE.  PRECISELY
HOW IT IS TO BE APPLIED THE COURT DOES NOT TELL US.  FROM ONE PART OF
THE COURT'S OPINION IT APPEARS THAT THE STATE CAN NEVER TAX THESE
FIBERS AT ALL, SINCE IT SEEMS TO BE SAID THE STATE CAN NEVER TAX UNTIL
THEY "ARE SUBJECTED TO THE MANUFACTURE FOR WHICH THEY WERE IMPORTED." 
ANOTHER PART OF THE OPINION INDICATES THEY CAN BE TAXED WHEN THE
ORIGINAL PACKAGE IS BROKEN.  PREVIOUS OPINIONS OF THIS COURT HAVE
INDICATED THE DIFFICULTIES AND DEFECTS OF AN ORIGINAL PACKAGE
DOCTRINE.  FN4  ARE THESE FIBERS TO BE TAXED WHEN THE "REED" WHICH
COVERS THEM IS REMOVED.  OR MUST THE STATE WAIT UNTIL IT CAN PROVE ONE
OF THE STEEL BANDS HAS BEEN BROKEN?  OTHER QUESTIONS SUGGEST THEMSELVES
IN REGARD TO WINE IMPORTED FOR USE AND STORED IN ONE'S PRIVATE CELLAR
FOR INDIVIDUAL CONSUMPTION.  WHEN, IF AT ALL, CAN A STATE TAX IT?  IS
IT WHEN THE WINE REACHES THE CELLAR OR MUST THE STATE WITHHOLD ITS
TAXING HAND UNTIL THE WINE IS "SUBJECTED TO THE (CONSUMPTION) FOR WHICH
IT WAS IMPORTED"?  OR CAN THE STATE TAX EACH CRATE WHEN THE OWNER, OR
SOMEONE FOR HIM, REMOVES THE CRATE'S TOP WITH A CROWBAR?  IF THE WINE
IS IMPORTED IN LARGE CASKS, DOES IT BECOME TAXABLE WHEN THE STOPPER IS
REMOVED FROM THE BUNGHOLE OR ONLY WHEN A PART OR ALL OF IT HAS BEEN
CONSUMED?  THE STATES ARE ENTITLED TO HAVE A DEFINITE ANSWER TO THESE
PRACTICAL QUESTIONS. 

FN1  COUNSEL FOR MARYLAND HAD ARGUED THAT TO PERMIT STATE TAX
IMMUNITY IN THAT CASE WOULD RESULT IN GRANTING IMMUNITY TO "AN IMPORTER
WHO MAY BRING IN GOODS, AS PLATE, FOR HIS OWN USE, AND THUS RETAIN MUCH
VALUABLE PROPERTY EXEMPT FROM TAXATION."  IN REPLY TO THIS ARGUMENT,
MARSHALL REJECTED THE ASSUMPTION THAT THE PRINCIPLES THEN ANNOUNCED
WOULD GRANT STATE TAX EXEMPTIONS TO IMPORTS THAT HAD REACHED THEIR
ULTIMATE DESTINATION AND WERE BEING USED OR HELD FOR USE BY THE
IMPORTER.  "THE TAX," HE SAID, "FINDS THE ARTICLE ALREADY INCORPORATED
WITH THE MASS OF PROPERTY BY THE ACT OF THE IMPORTER.  HE HAS USED THE
PRIVILEGE (I.E., OF SALE) HE HAD PURCHASED, AND HAS HIMSELF MIXED THEM
UP WITH THE COMMON MASS, AND THE LAW MAY TREAT THEM AS IT FINDS THEM. 
THE SAME OBSERVATIONS APPLY TO PLATE, OR OTHER FURNITURE USED BY THE
IMPORTER."  P. 443. 

FN2  TO THE SAME EFFECT, SEE WOODRUFF V. PARHAM, 8 WALL.  123, 134
136. 

FN3  SEE E.G. MAY V. NEW ORLEANS, 178 U.S. 496; BURKE V. WELLS, 208
U.S. 14; SONNEBORN BROS. V. CURETON, 262 U.S. 506; GULF FISHERIES CO.
V. MACINERNEY, 276 U.S. 124; BALDWIN V. SEELIG, 294 U.S. 511, 526.  SEE
ALSO MEXICAN PETROLEUM CORP. V. SOUTH PORTLAND, 121 MAINE 128, 115 A.
900, 23 A.L.R. 965, 971-980; TRES RITOS RANCH CO. V. ABBOTT, 44 N.
MEX.  556, 105 P.2D 1070. 

FN4  NOTE 3, SUPRA. 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, AND MR. JUSTICE RUTLEDGE
JOIN IN THIS OPINION.  MR. JUSTICE DOUGLAS IS OF THE VIEW THAT,
ACCEPTING THE COURT'S RULING THAT THESE PRODUCTS ARE "IMPORTS," THE
RULE SHOULD BE APPLIED WITHOUT DISCRIMINATION AGAINST THE PHILIPPINES. 

MR. JUSTICE MURPHY, CONCURRING IN PART. 

WITH MR. JUSTICE BLACK'S VIEW THAT WHATEVER CONSTITUTIONAL TAX
IMMUNITY THE MERCHANDISE IN QUESTION MAY HAVE HAD WAS LOST BY VIRTUE OF
ITS STORAGE IN PETITIONER'S WAREHOUSE PENDING ITS USE IN PETITIONER'S
MANUFACTURING OPERATIONS I AGREE.  BUT THE COURT HOLDS OTHERWISE ON
THAT ISSUE.  WE THEREFORE ARE MET WITH THE FURTHER ISSUE AS TO WHETHER
THE FACT THAT THE MERCHANDISE WAS SHIPPED FROM THE PHILIPPINE ISLANDS
TO THE UNITED STATES MADE THE MERCHANDISE AN IMPORT WITHIN THE MEANING
OF ARTICLE I, SEC. 10, CLAUSE 2 OF THE CONSTITUTION AND THEREFORE
IMMUNE FROM STATE TAXATION.  AS TO THAT PROBLEM I AM CONVINCED THAT THE
AFFIRMATIVE ANSWER GIVEN BY THE CHIEF JUSTICE IS THE CORRECT ONE AND I
CONCUR IN THAT PORTION OF HIS OPINION. 

THAT AFFIRMATIVE ANSWER, IN MY ESTIMATION, IS COMPELLED IN GOOD
MEASURE BY PRACTICAL CONSIDERATIONS.  THE MORAL AND LEGAL OBLIGATIONS
OWED THE PHILIPPINE ISLANDS BY THE UNITED STATES ARE, SO FAR AS I AM
AWARE, MATCHLESS AND UNIQUE.  THE UNITED STATES IS COMMITTED TO A
POLICY OF GRANTING COMPLETE INDEPENDENCE TO THE PHILIPPINES.  IT HAS
ALREADY GRANTED THEIR PEOPLE AND THEIR OFFICIALS A LARGE MEASURE OF
AUTONOMY.  BUT UNTIL THE SOVEREIGNTY OF THE UNITED STATES IS FINALLY
WITHDRAWN, THE UNITED STATES RETAINS PLENARY AND UNRESTRICTED POWERS
OVER THEM AND IS RESPONSIBLE FOR THEIR WELFARE. 

WE HAVE AS A NATION EXHIBITED AN IDEAL AND A SELFLESS CONCERN FOR THE
WELL-BEING OF THE PHILIPPINE PEOPLE, A CONCERN THAT HAS BEEN DEEPENED
BY THE DEVASTATION THAT WAR HAS BROUGHT TO THEIR LAND.  SINCE THE
ISLANDS WERE CEDED TO US, WE HAVE AT ONCE FOSTERED THEIR ECONOMIC
DEVELOPMENT THROUGH PREFERENTIAL TRADE AGREEMENTS AND ENCOURAGED THEIR
DESIRES FOR FREEDOM AND INDEPENDENCE.  THEIR INDUSTRIES AND THEIR
AGRICULTURE HAVE GRADUALLY BEEN ADJUSTED IN CONTEMPLATION OF THEIR
EVENTUAL SOVEREIGN INDEPENDENCE.  BUT WAR HAS STRICKEN THEIR LAND AND
THEIR PEOPLES.  THEIR GROWING ECONOMY HAS BEEN LARGELY DECIMATED BY
OVER THREE YEARS OF RUTHLESS INVASION AND OCCUPATION.  FILIPINOS IN
COUNTLESS NUMBERS HAVE YIELDED UP NOT ONLY THEIR PROPERTY BUT THEIR
LIVES AND THEIR LIBERTIES.  THEIR ECONOMIC AND SOCIAL STRUCTURE HAS
FALLEN ABOUT THEM IN RUINS. 

NOW, WITH THE ISLANDS LIBERATED, OUR MORAL AND LEGAL OBLIGATIONS ARE
GREATER THAN EVER BEFORE.  OUR RESPONSIBILITY FOR PROVIDING URGENT
RELIEF AND REHABILITATION HAS BEEN READILY ASSUMED.  BUT THE MORE
COMPLEX AND DIFFICULT DUTY OF HELPING TO RECONSTRUCT THE PHILIPPINE
ECONOMIC STRUCTURE REMAINS TO BE FULFILLED.  IT IS CLEAR THAT THE
PHILIPPINES CANNOT SAFELY BE THROWN INTO THE WORLD MARKET AND LEFT TO
SHIFT FOR THEMSELVES.  FOR THE FORESEEABLE FUTURE, AT LEAST, THEIR
ECONOMY MUST BE CLOSELY LINKED TO THAT OF THE UNITED STATES, WITHOUT
EITHER COUNTRY ABANDONING OR RETREATING FROM THE COMMON IDEAL OF
INDEPENDENCE FOR THE PHILIPPINES. 

ACCORDINGLY IT IS MY VIEW THAT IF IT IS REASONABLY POSSIBLE TO DO SO
WE SHOULD AVOID A CONSTRUCTION OF THE TERM "IMPORTS," AS USED IN
ARTICLE I, SEC. 10, CLAUSE 2 OF THE CONSTITUTION, THAT WOULD PLACE
PHILIPPINE PRODUCTS AT A DISADVANTAGE ON THE AMERICAN MARKET TO THE
ADVANTAGE OF PRODUCTS FROM OTHER COUNTRIES OR THAT MIGHT BE A MEANS OF
IMPEDING THE ECONOMIC REHABILITATION OF THE PHILIPPINES.  IF WE CAN
JUSTIFIABLY CONSTRUE THAT TERM TO PROHIBIT STATE TAXATION ON SHIPMENTS
FROM THE PHILIPPINES WE SHALL TO THAT EXTENT HAVE CONFORMED TO THE
NATIONAL POLICY OF AIDING THE PHILIPPINE RECONSTRUCTION.  ANY TAXATION
OR TARIFF ON PHILIPPINE SHIPMENTS THAT MAY BE FELT TO BE NECESSARY FROM
THE STANDPOINT OF THE UNITED STATES WOULD THEN BECOME A MATTER SOLELY
FOR CONGRESS, WHICH COULD PROPERLY BALANCE ANY CONFLICTING INTERESTS OF
THE TWO NATIONS. 

SUCH A CONSTRUCTION, IN MY ESTIMATION, IS ENTIRELY FAIR AND
REASONABLE.  THERE ARE, TO BE SURE, STATEMENTS BY THIS COURT TO THE
EFFECT THAT THE TERM "IMPORTS" REFERS ONLY TO THOSE GOODS BROUGHT IN
FROM A COUNTRY FOREIGN TO THE UNITED STATES.  WOODRUFF V. PARHAM, 8
WALL.  123, 136; DOOLEY V. UNITED STATES, 183 U.S. 151, 154.  BUT SUCH
STATEMENTS, AS POINTED OUT BY THE COURT TODAY, WERE UNNECESSARY TO THE
DECISION OF THE ISSUES THERE INVOLVED AND CANNOT CONTROL THE PROBLEM
PRESENTED HERE.  IT HAS ALSO BEEN HELD THAT THE PHILIPPINE ISLANDS ARE
NOT A FOREIGN COUNTRY WITHIN THE MEANING OF TARIFF LAWS SPECIFICALLY
REFERRING TO ANY "FOREIGN COUNTRY."  FOURTEEN DIAMOND RINGS V. UNITED
STATES, 183 U.S. 176; DE LIMA V. BIDWELL, 182 U.S. 1.  THE
INAPPLICABILITY OF THESE CASES IS OBVIOUS. 

IT FURTHER APPEARS THAT CONGRESS HAS USUALLY AVOIDED THE USE OF THE
TERM "IMPORTS" IN THE ENACTMENT OF LEGISLATION AFFECTING TRADE WITH THE
PHILIPPINES AND OTHER DEPENDENCIES AND THAT THE TERM HAS BEEN REGARDED
BY CERTAIN GOVERNMENT AGENCIES AS INAPPLICABLE TO ARTICLES COMING FROM
THE PHILIPPINES.  BUT SUCH USAGE CLEARLY CANNOT AFFECT OUR
INTERPRETATION OF A CONSTITUTIONAL PROVISION. 

AS APPEARS MORE FULLY IN THE COURT'S OPINION, THERE IS THUS NO
CONTROLLING AUTHORITY REQUIRING US TO HOLD THAT SHIPMENTS FROM THE
PHILIPPINES ARE NOT IMPORTS WITHIN THE MEANING OF ARTICLE I, SEC. 10,
CLAUSE 2 OF THE CONSTITUTION.  UNDER SUCH CIRCUMSTANCES THE
INTERPRETATION OF THIS CONSTITUTIONAL PROVISION ADOPTED BY THE CHIEF
JUSTICE IS A PERMISSIBLE ONE.  AND, IN VIEW OF WHAT I CONCEIVE TO BE
THE PRACTICAL CONSIDERATIONS, IT IS A HIGHLY NECESSARY AND DESIRABLE
ONE.  ONLY UNDER THAT INTERPRETATION CAN THIS PART OF THE CONSTITUTION
BE CONSISTENT WITH OUR DUTIES AS TRUSTEE FOR THE PHILIPPINES. 
..END :











COMMISSIONER V. SMITH, 324 U.S. 695 


NO. 371.  DECIDED APRIL 9, 1945.  - REHEARING DENIED. 


THE CONCLUSION OF THE TAX COURT UPON THE FACTS OF THIS CASE THAT THE
OPTION TO PURCHASE STOCK WAS EFFECTIVELY EXERCISED AND TAXABLE
COMPENSATION WAS RECEIVED, NOT WHEN THE OPTIONEE MADE HIS ELECTION AND
PAID THE OPTION PRICE, BUT WHEN THE SHARES WERE DELIVERED TO HIM, IS
SUPPORTED BY THE RECORD.  P. 696. 

COMMISSIONER OF INTERNAL REVENUE V. SMITH. 

ON PETITION FOR REHEARING. 

ON PETITION FOR REHEARING OF COMMISSIONER V. SMITH, 324 U.S. 177. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, ON MOTION FOR REHEARING IN THIS COURT, FOR THE FIRST TIME
CONTENDS THAT IF HE IS TAXABLE AT ALL AFTER THE RECEIPT OF THE OPTION
IN 1934, HE IS TAXABLE AS OF THE DATE IN MARCH, 1938, WHEN HE EXERCISED
HIS OPTION, AND NOT WHEN HE RECEIVED THE STOCK IN LATER YEARS.  THE
ONLY LATER YEAR IN QUESTION IS 1939 IN WHICH THE RECEIVED A SUBSTANTIAL
PART OF THE STOCK.  BEFORE THE DELIVERY IN 1939 AND AFTER THE EXERCISE
OF THE OPTION IN 1938 THERE WAS A SUBSTANTIAL INCREASE IN THE VALUE OF
THE STOCK.  HE ARGUES THAT THE TAX SHOULD BE MEASURED BY THE VALUE OF
THE STOCK IN 1938 LESS THE OPTION PRICE.  CF. PALMER V. COMMISSIONER,
302 U.S. 63, 73. 

IT IS TRUE THAT RESPONDENT GAVE NOTICE OF HIS EXERCISE OF THE OPTION
AND PAID THE OPTION PRICE IN 1938.  BUT AT THAT TIME WESTERN, UNDER ITS
CONTRACT WITH HAWLEY, HAD A RIGHT TO RECEIVE BUT A PART OF THE STOCK
SUBJECT TO RESPONDENT'S OPTION; ITS RIGHT TO THE REMAINDER WAS
CONDITIONED UPON ITS MAKING FURTHER PAYMENTS OF HAWLEY'S INDEBTEDNESS. 
RESPONDENT'S OPTION CONTEMPLATED DELIVERY TO HIM OF HAWLEY'S STOCK ONLY
IF AND WHEN WESTERN BECAME ENTITLED TO RECEIVE THE STOCK FROM HAWLEY. 
IN FACT DELIVERIES OF THE STOCK WERE MADE TO RESPONDENT UPON EACH
OCCASION ONLY A DAY OR TWO AFTER WESTERN RECEIVED IT FROM HAWLEY. 

THE TAX COURT FOUND THAT RESPONDENT RECEIVED COMPENSATION "WHEN (HE)
EXERCISED HIS OPTION AND RECEIVED THE STOCK."  WE TAKE IT THAT THE TAX
COURT REGARDED FULFILLMENT OF THE CONDITIONS UPON THE RIGHT OF WESTERN
TO RECEIVE THE STOCK, AND THEREFORE OF THE CONDITIONS UPON THE
DERIVATIVE RIGHT OF RESPONDENT TO RECEIVE IT UNDER HIS OPTION, AS
PREREQUISITE TO THE EFFECTIVE EXERCISE OF THE OPTION; AND THAT THE
TAXABLE COMPENSATION TO RESPONDENT INTENDED TO BE SECURED BY THE OPTION
WAS IN FACT RECEIVED BY RESPONDENT AS AND WHEN THE SHARES OF STOCK WERE
DELIVERED TO HIM, SINCE PRIOR TO THAT TIME THERE WAS NO CERTAINTY THAT
HE WOULD RECEIVE THE STOCK.  THIS CONCLUSION OF THE TAX COURT FINDS
AMPLE SUPPORT IN THE RECORD, AND WE CONCUR IN IT. 

WE DO NOT HAVE BEFORE US A CASE WHERE BY THE EXERCISE OF AN OPTION IN
ONE YEAR THE TAXPAYER ACQUIRES AN UNCONDITIONAL RIGHT TO RECEIVE THE
STOCK IN A LATER YEAR.  WE EXPRESS NO OPINION UPON THE QUESTION
WHETHER, IN SUCH A CASE, COMPENSATION WOULD BE RECEIVED AND WOULD BE
TAXABLE IN THE EARLIER OR THE LATER YEAR. 

THE PETITION FOR REHEARING IS DENIED. 

MR. JUSTICE ROBERTS ADHERES TO HIS DISSENT. 
..END :













BROOKLYN BANK V. O'NEIL, 324 U.S. 697 


ARGUED FEBRUARY 5, 6, 1945.  - DECIDED APRIL 9, 1945.  - 293 N.Y. 666,
56 N.E.2D 259, AFFIRMED.  - 144F.2D 584, AFFIRMED.  - 144F.2D 292,
REVERSED IN PART. 


1.  IN THE ABSENCE OF A BONA FIDE DISPUTE BETWEEN THE EMPLOYER AND THE
EMPLOYEE AS TO LIABILITY, AN EMPLOYEE'S WRITTEN WAIVER OF HIS RIGHT TO
LIQUIDATED DAMAGES UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT
DOES NOT BAR A SUBSEQUENT ACTION BY THE EMPLOYEE TO RECOVER SUCH
LIQUIDATED DAMAGES.  P. 707. 

2.  THE LEGISLATIVE POLICY BEHIND THE PROVISION OF SEC. 16(B) FOR
LIQUIDATED DAMAGES, AS EVIDENCED BY THE LEGISLATIVE HISTORY OF THE
PROVISION AND BY OTHER PROVISIONS AND THE STRUCTURE OF THE ACT, SHOWS
THAT CONGRESS DID NOT INTEND THAT AN EMPLOYEE SHOULD BE ALLOWED TO
WAIVE HIS RIGHT TO LIQUIDATED DAMAGES.  P. 706. 

3.  EXCEPTIONAL CIRCUMSTANCES OF THE KIND HELD TO JUSTIFY A WAIVER
AGREEMENT SUCH AS WAS UPHELD IN FORT SMITH & WESTERN R. CO. V. MILLS,
253 U.S. 206, ARE NOT HERE INVOLVED.  P. 709. 

4.  THE RIGHT OF THE EMPLOYEE TO LIQUIDATED DAMAGES UNDER SEC. 16(B)
DOES NOT DEPEND ON WHETHER THE EMPLOYEE IS COMPELLED TO SUE FOR MINIMUM
WAGES DUE.  P. 711. 

5.  ABSENCE FROM THE FAIR LABOR STANDARDS ACT OF A SPECIFIC PROVISION
PROHIBITING WAIVERS OF RIGHTS UNDER THE ACT IS NOT TO BE CONSTRUED AS
PERMITTING SUCH WAIVERS.  P. 712. 

6.  AN EMPLOYEE'S RELEASE AND WAIVER OF RIGHTS TO MINIMUM WAGES AND
LIQUIDATED DAMAGES UNDER THE FAIR LABOR STANDARDS ACT, IN CONSIDERATION
OF A SUM KNOWN BY BOTH EMPLOYER AND EMPLOYEE TO BE LESS THAN THE
STATUTORY MINIMUM WAGES DUE, IS VOID.  P. 713. 

7.  IT IS UNNECESSARY HERE TO DETERMINE QUESTIONS OF THE VALIDITY AND
EFFECT OF AGREEMENTS BETWEEN EMPLOYER AND EMPLOYEE IN SETTLEMENT OF
CLAIMS ARISING UNDER THE ACT WHERE THERE IS A BONA FIDE DISPUTE BETWEEN
THE PARTIES.  P. 714. 

8.  THE QUESTION OF THE RIGHT TO INTEREST ON SUMS RECOVERABLE UNDER
SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT IS ONE OF FEDERAL, NOT
LOCAL, LAW.  P. 715. 

9.  AN EMPLOYEE RECOVERING MINIMUM WAGES AND LIQUIDATED DAMAGES UNDER
SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT IS NOT ENTITLED TO INTEREST
ON THE SUMS SO RECOVERED.  P. 715. 

BROOKLYN SAVINGS BANK V. O'NEIL. 

NO. 445.  CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.* 

*TOGETHER WITH NO. 554, DIZE V. MADDRIX, ON CERTIORARI TO THE CIRCUIT
COURT OF APPEALS FOR THE FOURTH CIRCUIT, ARGUED FEBRUARY 6, 1945, AND
NO. 421, ARSENAL BUILDING CORP. ET AL. V. GREENBERG, ON CERTIORARI TO
THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT, ARGUED FEBRUARY 2,
5, 1945. 

CERTIORARI, 323 U.S. 698, 702, TO REVIEW DECISIONS IN THREE CASES
UNDER THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE WRITS OF CERTIORARI GRANTED IN THESE THREE CASES PRESENT
QUESTIONS AS TO THE INTERPRETATION OF SECTION 16(B) OF THE FAIR LABOR
STANDARDS ACT OF 1938, 52 STAT. 1060, AT 1069, WHICH PROVIDES THAT AN
EMPLOYER WHO VIOLATES THE MINIMUM WAGE AND MAXIMUM HOUR PROVISIONS OF
THE ACT "...  SHALL BE LIABLE TO THE EMPLOYEE OR EMPLOYEES AFFECTED IN
THE AMOUNT OF THEIR UNPAID MINIMUM WAGES, OR THEIR UNPAID OVERTIME
COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL EQUAL AMOUNT AS
LIQUIDATED DAMAGES...."  FN1  CASES NO. 445 AND NO. 554 RAISE THE
QUESTION WHETHER AN EMPLOYEE SUBJECT TO THE TERMS OF THE ACT CAN WAIVE
OR RELEASE HIS RIGHT TO RECEIVE FROM HIS EMPLOYER LIQUIDATED DAMAGES
UNDER SEC. 16(B).  CASE NO. 421 PRESENTS THE ISSUE OF WHETHER IN A SUIT
BROUGHT PURSUANT TO THE PROVISIONS OF SEC. 16(B) THE EMPLOYEE IS
ENTITLED TO INTEREST ON SUMS RECOVERED AS WAGES AND LIQUIDATED DAMAGES
UNDER THAT SECTION.  SINCE THESE THREE CASES INVOLVE SIMILAR PROBLEMS
RELATING TO THE INTERPRETATION OF SEC. 16(B) AND THE CONGRESSIONAL
POLICY BEHIND ITS ADOPTION, ALL THREE CASES WILL BE DEALT WITH IN ONE
OPINION.  SEE ALSO NO. 462, POST, P. 720. 

                               NO. 445. 

THE PETITIONER, BROOKLYN SAVINGS BANK, OWNED AND OPERATED AN ELEVEN
STORY OFFICE BUILDING IN WHICH THE RESPONDENT WAS EMPLOYED AS A NIGHT
WATCHMAN DURING A TWO-YEAR PERIOD FROM NOVEMBER 5, 1938, TO AUGUST 30,
1940.  SINCE A SUBSTANTIAL PORTION OF THAT BUILDING WAS DEVOTED TO THE
PRODUCTION OF GOODS FOR COMMERCE,  FN2  THE RESPONDENT WAS ENTITLED TO
OVERTIME COMPENSATION UNDER THE PROVISIONS OF SEC. 7 OF THE FAIR LABOR
STANDARDS ACT.  FN3  52 STAT. 1063.  NO SUCH COMPENSATION WAS PAID AT
THAT TIME.  HOWEVER, IN NOVEMBER, 1942, OVER TWO YEARS AFTER THE
RESPONDENT HAD LEFT PETITIONER'S SERVICE, THE PETITIONER COMPUTED THE
STATUTORY OVERTIME COMPENSATION DUE THE RESPONDENT AND OFFERED HIM A
CHECK FOR $423.16 IN RETURN FOR A RELEASE OF ALL OF HIS RIGHTS UNDER
THE ACT.  THE RESPONDENT SIGNED THE RELEASE AND TOOK THE CHECK.  SINCE
THIS SUM DID NOT INCLUDE ANY PAYMENT FOR LIQUIDATED DAMAGES PROVIDED
FOR IN SEC. 16(B) OF THE ACT, THE RESPONDENT SUBSEQUENTLY INSTITUTED
THE PRESENT PROCEEDING IN A NEW YORK CITY MUNICIPAL COURT TO RECOVER
LIQUIDATED DAMAGES DUE HIM UNDER SEC. 16(B).  THE COMPLAINT WAS
DISMISSED ON THE GROUNDS THAT RESPONDENT FAILED TO PROVE A CAUSE OF
ACTION AND ALSO THAT THE RESPONDENT "RELEASED ANY CLAIM FOR LIQUIDATED
DAMAGES OR COUNSEL FEES."  THE APPELLATE TERM REVERSED, PER CURIAM,
HOLDING THAT RESPONDENT WAS EMPLOYED IN THE PRODUCTION OF GOODS FOR
COMMERCE WITHIN THE MEANING OF THE FAIR LABOR STANDARDS ACT AND WAS
ENTITLED THEREFORE TO RECOVER LIQUIDATED DAMAGES BY REASON OF
PETITIONER'S DEFAULT IN MAKING OVERTIME PAYMENTS AS REQUIRED BY SEC. 7
OF THE ACT.  FN4  THIS DECISION WAS AFFIRMED BY THE NEW YORK APPELLATE
DIVISION,  FN5  AND BY THE NEW YORK COURT OF APPEALS.  FN6  SINCE THE
NEW YORK COURT OF APPEALS DECIDED A FEDERAL QUESTION OF SUBSTANCE NOT
HERETOFORE DETERMINED BY THIS COURT, WE GRANTED CERTIORARI  FN7
LIMITED TO THE QUESTION OF WHETHER THE RESPONDENT'S RELEASE OF ALL
CLAIMS AND DAMAGES UNDER THE ACT, GIVEN AT THE TIME HE RECEIVED PAYMENT
OF THE OVERTIME COMPENSATION DUE UNDER THE ACT, IS A DEFENSE TO AN
ACTION SUBSEQUENTLY BROUGHT SOLELY TO RECOVER LIQUIDATED DAMAGES.  THE
JURISDICTION OF THIS COURT RESTS ON SEC. 237(B) OF THE JUDICIAL CODE. 

                        NO. 554. 

THE PETITIONER IN THIS SECOND CASE OPERATED A BOX FACTORY IN WHICH HE
EMPLOYED THE RESPONDENT DURING THE PERIOD FROM OCTOBER, 1938, THE
EFFECTIVE DATE OF THE FAIR LABOR STANDARDS ACT, TO NOVEMBER, 1942, WHEN
RESPONDENT WAS DISCHARGED.  DURING THIS PERIOD THE RESPONDENT WORKED
HOURS IN EXCESS OF THE STATUTORY MAXIMUMS IN EFFECT DURING THIS
PERIOD.  PETITIONER FAILED TO PAY RESPONDENT TIME AND ONE-HALF FOR
OVERTIME AS REQUIRED BY THE ACT.  IN SEPTEMBER, 1942, THE WAGE AND HOUR
ADMINISTRATION PROCURED AN INJUNCTION, BY CONSENT, PROHIBITING THE
PETITIONER FROM VIOLATING THE ACT.  IN NOVEMBER, 1942, THE PETITIONER
TENDERED THE RESPONDENT $500 FOR WAGES DUE AND OWING UNDER THE ACT, THE
LATTER ACCEPTING THE MONEY AND SIGNING A GENERAL RELEASE OF ALL CLAIMS
AGAINST PETITIONER UNDER THE ACT.  BOTH PARTIES KNEW AT THIS TIME THAT
MORE THAN $500 WAS DUE TO RESPONDENT FOR MINIMUM WAGES AND OVERTIME PAY
UNDER THE ACT.  SHORTLY THEREAFTER, THE RESPONDENT ENGAGED COUNSEL TO
RECOVER THE BALANCE DUE HIM UNDER THE ACT.  PETITIONER, BEFORE SUIT WAS
FILED, TENDERED THE BALANCE OF THE STATUTORY WAGES DUE, BUT RESPONDENT
REFUSED TO ACCEPT IT BECAUSE IT DID NOT INCLUDE AN EQUAL SUM FOR
LIQUIDATED DAMAGES.  THEREUPON THE RESPONDENT BROUGHT SUIT FOR $276.05,
THE BALANCE OF THE STATUTORY WAGES DUE RESPONDENT, AND $776.05, BEING
LIQUIDATED DAMAGES EQUAL TO THE WHOLE AMOUNT ($500 PLUS $276.05) WHICH
HAD ORIGINALLY BEEN UNLAWFULLY WITHHELD.  IN HIS ANSWER, THE PETITIONER
PLEADED SETTLEMENT OF RESPONDENT'S CLAIM FOR $500, THE RELEASE GIVEN BY
RESPONDENT PURSUANT TO SUCH SETTLEMENT, AND THE PETITIONER'S SUBSEQUENT
TENDER OF A CHECK FOR THE DEFICIENCY IN STATUTORY MINIMUM AND OVERTIME
WAGES DUE.  THE DISTRICT COURT GRANTED JUDGMENT FOR THE RESPONDENT
RELYING ON GUESS V. MONTAGUE, 140 F.2D 500, WHICH HELD INVALID A
SETTLEMENT AGREEMENT ON THE PART OF EMPLOYEES TO ACCEPT LESS THAN THE
STATUTORY MINIMUM WAGE.  FN8 THE CIRCUIT COURT OF APPEALS FOR THE
FOURTH CIRCUIT AFFIRMED.  FN9 

BECAUSE THE DECISION OF THE CIRCUIT COURT OF APPEALS DECIDED AN
IMPORTANT QUESTION OF FEDERAL LAW WHICH HAS NOT BEEN, BUT SHOULD BE,
SETTLED BY THIS COURT, WE GRANTED CERTIORARI  FN10  LIMITED TO THE
QUESTION OF WHETHER THERE HAD BEEN A COMPROMISE OF RESPONDENT'S CLAIM. 
JURISDICTION OF THIS COURT RESTS ON SEC. 240(A) OF THE JUDICIAL CODE. 

THE PETITION IN NO. 445 RAISES THE QUESTION OF WHETHER AN EMPLOYEE,
ACCEPTING FROM HIS EMPLOYER A DELAYED PAYMENT OF THE BASIC STATUTORY
WAGES DUE UNDER THE ACT, CAN VALIDLY RELEASE AND WAIVE ANY FURTHER
RIGHT TO RECOVER LIQUIDATED DAMAGES UNDER THE PROVISIONS OF SEC.
16(B).  FN11  A PRELIMINARY QUESTION ARISES AS TO WHETHER RESPONDENT'S
RELEASE WAS GIVEN IN SETTLEMENT OF A BONA FIDE DISPUTE BETWEEN THE
PARTIES WITH RESPECT TO COVERAGE OR AMOUNT DUE UNDER THE ACT OR WHETHER
IT CONSTITUTED A MERE WAIVER OF HIS RIGHT TO LIQUIDATED DAMAGES.  THE
STATE COURTS MADE NO FINDINGS OF FACT ON THIS ISSUE.  WHERE A STATE
COURT FAILS TO PASS ON EVIDENCE OR MAKE FINDINGS OF FACT BECAUSE UNDER
THEIR RESPECTIVE VIEWS THE FACTS REFERRED TO ARE IMMATERIAL, WE ARE NOT
RELIEVED FROM THE DUTY OF EXAMINING THE EVIDENCE FOR THE PURPOSE OF
DETERMINING WHAT FACTS REASONABLY MIGHT BE AND PRESUMABLY WOULD BE
FOUND THEREFROM BY THE STATE COURT.  MERCHANTS' NATIONAL BANK V.
RICHMOND, 256 U.S. 635, 638; CARLSON V. CURTISS, 234 U.S. 103, 105. 
CF. UNITED GAS CO. V. TEXAS, 303 U.S. 123, 143; CRESWILL V. KNIGHTS OF
PYTHIAS, 225 U.S. 246, 261.  WE THINK THE RECORD IN THIS CASE SHOWS
THAT THE RELEASE WAS NOT GIVEN IN SETTLEMENT OF A BONA FIDE DISPUTE
BETWEEN EMPLOYER AND EMPLOYEE.  PETITIONER UNDERTOOK TO PAY THE
RESPONDENT AFTER OUR DECISION IN KIRSCHBAUM CO. V. WALLING, 316 U.S.
517, WHICH DETERMINED THE APPLICABILITY OF THE FAIR LABOR STANDARDS ACT
TO BUILDING OPERATORS LIKE THE PETITIONER.  PETITIONER'S ANSWER IN THE
MUNICIPAL COURT MERELY RELIED UPON PAYMENT OF THE STATUTORY LIABILITY
AND THE RELEASE OF OTHER CLAIMS.  WITH THE EXCEPTION OF THE RECITAL IN
THE RELEASE, THERE IS NOTHING IN THE RECORD WHICH SHOWS THAT THE
RESPONDENT'S RELEASE WAS OBTAINED AS THE RESULT OF THE SETTLEMENT OF A
BONA FIDE DISPUTE BETWEEN THE PARTIES WITH RESPECT TO COVERAGE OR
AMOUNT.  FN12  MOREOVER, THE DECISION BY THE NEW YORK APPELLATE
DIVISION WAS BASED ON RIGOPOULOS V. KERVAN, 140 F.2D 506, WHICH
INVOLVED WAIVER OF RIGHT TO LIQUIDATED DAMAGES IN THE ABSENCE OF A BONA
FIDE DISPUTE AND WHICH EXPRESSLY RESERVED DECISION ON THE QUESTION OF
VALIDITY OF A SETTLEMENT WHERE THERE WAS SUCH A DISPUTE BETWEEN THE
PARTIES.  THE ISSUE PRESENTED IN NO. 445 THEREFORE IS WHETHER IN THE
ABSENCE OF A BONA FIDE DISPUTE BETWEEN THE PARTIES AS TO LIABILITY,
RESPONDENT'S WRITTEN WAIVER OF HIS RIGHT TO LIQUIDATED DAMAGES UNDER
SEC. 16(B) BARS A SUBSEQUENT ACTION TO RECOVER LIQUIDATED DAMAGES.  WE
ARE OF THE OPINION THAT IT DOES NOT BAR SUCH CLAIM.  FN13 

IT HAS BEEN HELD IN THIS AND OTHER COURTS THAT A STATUTORY RIGHT
CONFERRED ON A PRIVATE PARTY, BUT AFFECTING THE PUBLIC INTEREST, MAY
NOT BE WAIVED OR RELEASED IF SUCH WAIVER OR RELEASE CONTRAVENES THE
STATUTORY POLICY.  MIDSTATE HORTICULTURAL CO. V. PENNSYLVANIA R. CO.,
320 U.S. 356, 361; PHILLIPS V. GRAND TRUNK R. CO., 236 U.S. 662, 667. 
CF. YOUNG V. HIGBEE CO., 324 U.S. 204, 212.  WHERE A PRIVATE RIGHT IS
GRANTED IN THE PUBLIC INTEREST TO EFFECTUATE A LEGISLATIVE POLICY,
WAIVER OF A RIGHT SO CHARGED OR COLORED WITH THE PUBLIC INTEREST WILL
NOT BE ALLOWED WHERE IT WOULD THWART THE LEGISLATIVE POLICY WHICH IT
WAS DESIGNED TO EFFECTUATE.  FN14 WITH RESPECT TO PRIVATE RIGHTS
CREATED BY A FEDERAL STATUTE, SUCH AS SEC. 16(B), THE QUESTION OF
WHETHER THE STATUTORY RIGHT MAY BE WAIVED DEPENDS UPON THE INTENTION OF
CONGRESS AS MANIFESTED IN THE PARTICULAR STATUTE.  AS WAS STATED IN
MIDSTATE HORTICULTURAL CO. V. PENNSYLVANIA R. CO., 320 U.S. 356, 360,
"...  WHETHER THE POLICY OF  ...  (THE) LEGISLATION CONTEMPLATES THE
ONE RESULT OR THE OTHER  ...  IS THE CONTROLLING QUESTION." 

NEITHER THE STATUTORY LANGUAGE, THE LEGISLATIVE REPORTS  FN15  NOR
THE DEBATES  FN16  INDICATES THAT THE QUESTION AT ISSUE WAS
SPECIFICALLY CONSIDERED AND RESOLVED BY CONGRESS.  IN THE ABSENCE OF
EVIDENCE OF SPECIFIC CONGRESSIONAL INTENT, IT BECOMES NECESSARY TO
RESORT TO A BROADER CONSIDERATION OF THE LEGISLATIVE POLICY BEHIND THIS
PROVISION AS EVIDENCED BY ITS LEGISLATIVE HISTORY AND THE PROVISIONS IN
AND STRUCTURE OF THE ACT.  SEE TENNESSEE COAL CO. V. MUSCODA LOCAL, 321
U.S. 590, 597; UNITED STATES V. DARBY, 312 U.S. 100, 117-18, 122-23. 
SUCH CONSIDERATION CLEARLY SHOWS THAT CONGRESS DID NOT INTEND THAT AN
EMPLOYEE SHOULD BE ALLOWED TO WAIVE HIS RIGHT TO LIQUIDATED DAMAGES. 

THE LEGISLATIVE HISTORY OF THE FAIR LABOR STANDARDS ACT SHOWS AN
INTENT ON THE PART OF CONGRESS TO PROTECT CERTAIN GROUPS OF THE
POPULATION FROM SUB-STANDARD WAGES AND EXCESSIVE HOURS WHICH ENDANGERED
THE NATIONAL HEALTH AND WELL-BEING AND THE FREE FLOW OF GOODS IN
INTERSTATE COMMERCE N17.  THE STATUTE WAS A RECOGNITION OF THE FACT
THAT DUE TO THE UNEQUAL BARGAINING POWER AS BETWEEN EMPLOYER AND
EMPLOYEE, CERTAIN SEGMENTS OF THE POPULATION REQUIRED FEDERAL
COMPULSORY LEGISLATION TO PREVENT PRIVATE CONTRACTS ON THEIR PART WHICH
ENDANGERED NATIONAL HEALTH AND EFFICIENCY AND AS A RESULT THE FREE
MOVEMENT OF GOODS IN INTERSTATE COMMERCE.  FN18  TO ACCOMPLISH THIS
PURPOSE STANDARDS OF MINIMUM WAGES AND MAXIMUM HOURS WERE PROVIDED. 
NEITHER PETITIONER NOR RESPONDENT SUGGESTS THAT THE RIGHT TO THE BASIC
STATUTORY MINIMUM WAGE COULD BE WAIVED BY ANY EMPLOYEE SUBJECT TO THE
ACT.  NO ONE CAN DOUBT BUT THAT TO ALLOW WAIVER OF STATUTORY WAGES BY
AGREEMENT WOULD NULLIFY THE PURPOSES OF THE ACT.  WE ARE OF THE OPINION
THAT THE SAME POLICY CONSIDERATIONS WHICH FORBID WAIVER OF BASIC
MINIMUM AND OVERTIME WAGES UNDER THE ACT ALSO PROHIBIT WAIVER OF THE
EMPLOYEE'S RIGHT TO LIQUIDATED DAMAGES. 

WE HAVE PREVIOUSLY HELD THAT THE LIQUIDATED DAMAGE PROVISION IS NOT
PENAL IN ITS NATURE BUT CONSTITUTES COMPENSATION FOR THE RETENTION OF A
WORKMAN'S PAY WHICH MIGHT RESULT IN DAMAGES TOO OBSCURE AND DIFFICULT
OF PROOF FOR ESTIMATE OTHER THAN BY LIQUIDATED DAMAGES.  OVERNIGHT
MOTOR CO. V. MISSEL, 316 U.S. 572.  IT CONSTITUTES A CONGRESSIONAL
RECOGNITION THAT FAILURE TO PAY THE STATUTORY MINIMUM ON TIME MAY BE SO
DETRIMENTAL TO MAINTENANCE OF THE MINIMUM STANDARD OF LIVING "NECESSARY
FOR HEALTH, EFFICIENCY AND GENERAL WELL-BEING OF WORKERS"  FN19  AND TO
THE FREE FLOW OF COMMERCE, THAT DOUBLE PAYMENT MUST BE MADE IN THE
EVENT OF DELAY IN ORDER TO INSURE RESTORATION OF THE WORKER TO THAT
MINIMUM STANDARD OF WELL-BEING.  FN20  EMPLOYEES RECEIVING LESS THAN
THE STATUTORY MINIMUM ARE NOT LIKELY TO HAVE SUFFICIENT RESOURCES TO
MAINTAIN THEIR WELL-BEING AND EFFICIENCY UNTIL SUCH SUMS ARE PAID AT A
FUTURE DATE.  THE SAME POLICY WHICH FORBIDS WAIVER OF THE STATUTORY
MINIMUM AS NECESSARY TO THE FREE FLOW OF COMMERCE REQUIRES THAT
REPARATIONS TO RESTORE DAMAGE DONE BY SUCH FAILURE TO PAY ON TIME MUST
BE MADE TO ACCOMPLISH CONGRESSIONAL PURPOSES.  MOREOVER, THE SAME
POLICY WHICH FORBIDS EMPLOYEE WAIVER OF THE MINIMUM STATUTORY RATE
BECAUSE OF INEQUALITY OF BARGAINING POWER, PROHIBITS THESE SAME
EMPLOYEES FROM BARGAINING WITH THEIR EMPLOYER IN DETERMINING WHETHER SO
LITTLE DAMAGE WAS SUFFERED THAT WAIVER OF LIQUIDATED DAMAGE IS CALLED
FOR.  THIS CONCLUSION IS IN ACCORD WITH DECISIONS OF THE MAJORITY OF
THE FEDERAL COURTS THAT HAVE CONSIDERED THIS QUESTION.  FN21  THIS
RESULT, MOREOVER, AVOIDS THE DIFFICULT PROBLEMS OF ALLOCATION THAT
WOULD ARISE IN NUMEROUS CASES WHERE A LUMP SUM WAS PAID FOR BACK WAGES
AND WAIVER OF RIGHT TO LIQUIDATED DAMAGES AND WHERE ISSUE WAS
SUBSEQUENTLY RAISED AS TO WHETHER THERE HAD BEEN FULL PAYMENT OF THE
BASIC MINIMUM AND OVERTIME WAGES SPECIFIED IN THE ACT.  NOR DOES THE
INSTANT CASE INVOLVE EXCEPTIONAL CIRCUMSTANCES OF THE KIND HELD TO
JUSTIFY A WAIVER AGREEMENT SUCH AS WAS UPHELD IN FORT SMITH & WESTERN
R. CO. V. MILLS, 253 U.S. 206. 

THE PRIVATE-PUBLIC CHARACTER OF THIS RIGHT IS FURTHER BORNE OUT BY AN
EXAMINATION OF THE ENFORCEMENT PROVISIONS OF THE ACT.  ALTHOUGH THE
DIFFICULTIES OF ENFORCEMENT UNDER THE ACT WERE RECOGNIZED,  FN22  THE
ADMINISTRATOR WAS GIVEN LIMITED ENFORCEMENT POWERS.  CRIMINAL
PROSECUTION WAS AVAILABLE ONLY FOR WILLFUL VIOLATIONS - DIFFICULT TO
PROVE.  SEC. 16(A).  THE ADMINISTRATOR'S CIVIL REMEDY LAY BY WAY OF
SUIT FOR AN INJUNCTION, WHICH BY ITS NATURE TENDS TO BE PROSPECTIVE IN
OPERATION.  NO POWER WAS VESTED IN THE ADMINISTRATOR TO BRING AN ACTION
AT LAW TO OBTAIN PAYMENT OF MINIMUM WAGES LEFT UNPAID AND TO RECOVER
DAMAGES ARISING FROM DELAY IN PAYMENT.  SOLE RIGHT TO BRING SUCH SUIT
WAS VESTED IN THE EMPLOYEE UNDER SEC. 16(B).  ALTHOUGH THIS RIGHT TO
SUE IS COMPENSATORY, IT IS NEVERTHELESS AN ENFORCEMENT PROVISION.  FN23
AND NOT THE LEAST EFFECTIVE ASPECT OF THIS REMEDY IS THE POSSIBILITY
THAT AN EMPLOYER WHO GAMBLES ON EVADING THE ACT WILL BE LIABLE FOR
PAYMENT NOT ONLY OF THE BASIC MINIMUM ORIGINALLY DUE BUT ALSO DAMAGES
EQUAL TO THE SUM LEFT UNPAID.  TO PERMIT AN EMPLOYER TO SECURE A
RELEASE FROM THE WORKER WHO NEEDS HIS WAGES PROMPTLY WILL TEND TO
NULLIFY THE DETERRENT EFFECT WHICH CONGRESS PLAINLY INTENDED THAT SEC.
16(B) SHOULD HAVE.  KNOWLEDGE ON THE PART OF THE EMPLOYER THAT HE
CANNOT ESCAPE LIABILITY FOR LIQUIDATED DAMAGES BY TAKING ADVANTAGE OF
THE NEEDS OF HIS EMPLOYEES TENDS TO INSURE COMPLIANCE IN THE FIRST
PLACE.  TO ALLOW CONTRACTS FOR WAIVER OF LIQUIDATED DAMAGES
APPROXIMATES SITUATIONS WHERE COURTS HAVE UNIFORMLY HELD THAT CONTRACTS
TENDING TO ENCOURAGE VIOLATION OF LAWS ARE VOID AS CONTRARY TO PUBLIC
POLICY.  FN24 

PROHIBITION OF WAIVER OF CLAIMS FOR LIQUIDATED DAMAGES ACCORDS WITH
THE CONGRESSIONAL POLICY OF UNIFORMITY IN THE APPLICATION OF THE
PROVISIONS OF THE ACT TO ALL EMPLOYERS SUBJECT THERETO, UNLESS
EXPRESSLY EXEMPTED BY THE PROVISIONS OF THE ACT.  AN EMPLOYER IS NOT TO
BE ALLOWED TO GAIN A COMPETITIVE ADVANTAGE BY REASON OF THE FACT THAT
HIS EMPLOYEES ARE MORE WILLING TO WAIVE CLAIMS FOR LIQUIDATED DAMAGES
THAN ARE THOSE OF HIS COMPETITOR.  FN25  THE SAME CONSIDERATIONS
CALLING FOR EQUALITY OF TREATMENT WHICH WE FOUND SO COMPELLING IN
MIDSTATE HORTICULTURAL CO., SUPRA, EXIST HERE. 

THE PROVISIONS OF THE STATUTE REFLECT THE POLICY CONSIDERATIONS
DISCUSSED ABOVE WHICH PROHIBIT WAIVER OF THE RIGHT TO LIQUIDATED
DAMAGES.  SECTIONS 7(A) AND 16(B) ARE MANDATORY IN FORM.  IN TERMS THEY
DIRECT THAT THE EMPLOYER SHALL NOT EMPLOY A WORKER LONGER THAN THE
SPECIFIED TIME WITHOUT PAYMENT OF OVERTIME COMPENSATION AND THAT, UPON
VIOLATION OF THIS PROVISION, THE EMPLOYER SHALL BE LIABLE FOR STATUTORY
WAGES AND LIQUIDATED DAMAGES.  ONE SECTION, SEC. 16(B), CREATES THE
OBLIGATION FOR THE ENTIRE REMEDY.  COLLECTION OF BOTH WAGES AND DAMAGES
IS LEFT TO THE EMPLOYEE.  FN26 

RESPONDENT ARGUES THAT SEC. 16(B) INDICATES THAT THE RIGHT TO
LIQUIDATED DAMAGES ARISES ONLY IF THE EMPLOYEE IS COMPELLED TO SUE FOR
MINIMUM WAGES DUE.  SECTION 16(B) IN NO WAY BEARS OUT THIS
INTERPRETATION.  FN27  IT PROVIDES ABSOLUTELY THAT THE EMPLOYER SHALL
BE LIABLE FOR LIQUIDATED DAMAGES IN AN AMOUNT EQUAL TO MINIMUM WAGES
OVERDUE; LIABILITY IS NOT CONDITIONED ON DEFAULT AT THE TIME SUIT IS
BEGUN.  IT IS ALSO ARGUED THAT THE ELIMINATION FROM A PREDECESSOR BILL
OF A PROVISION PROHIBITING WAIVER OF THE PROVISIONS OF THE ACT
INDICATES A CONGRESSIONAL INTENT TO ALLOW AN EMPLOYEE TO WAIVE HIS
CLAIM TO LIQUIDATED DAMAGES.  FN28  BUT SUCH A CONTENTION PROVES TOO
MUCH.  IT APPLIES WITH EQUAL FORCE TO THE RIGHT TO MINIMUM WAGES.  SUCH
AN INTERPRETATION WOULD NULLIFY THE EFFECTIVENESS OF THE ACT.  IT IS
ALSO SUGGESTED THAT THE FAILURE TO IMPOSE CRIMINAL SANCTIONS FOR THE
VIOLATION OF THE LIQUIDATED DAMAGE PROVISIONS OR TO AUTHORIZE AN
INJUNCTION TO PREVENT THEIR VIOLATION MANIFESTS A DIFFERENCE IN
CONGRESS' ATTITUDE TOWARD THE WAIVER OF THE EMPLOYEE'S RIGHT TO THE
BASIC STATUTORY WAGE AS COMPARED WITH HIS RIGHT TO LIQUIDATED DAMAGES. 
BUT THERE IS NO REASON FOR MAKING AN EMPLOYER SUBJECT TO A CRIMINAL
PENALTY OR AN INJUNCTION FOR FAILURE TO PAY LIQUIDATED DAMAGES.  THEY
ARE COLLECTIBLE AS PRIVATE DAMAGES BY THE EMPLOYEE FOR FAILURE TO OBEY
THE SAME REQUIREMENTS AS TO WAGES WHICH ARE PUNISHED AND CONTROLLED, SO
FAR AS THE PURELY PUBLIC INTEREST IS CONCERNED, BY CRIMINAL SANCTIONS
AND INJUNCTION. 

PETITIONER RELIES ON THE FACT THAT VARIOUS OTHER FEDERAL STATUTES
AUTHORIZING EMPLOYEES TO SUE FOR WAGES OR FOR DAMAGES ARISING FROM
INJURIES SUSTAINED IN THE COURSE OF EMPLOYMENT CONTAIN SPECIFIC
PROVISIONS PROHIBITING WAIVER OF RIGHTS UNDER THE ACTS INVOLVED, OR
PROVIDE MEANS BY WHICH COMPROMISES AND SETTLEMENTS CAN BE APPROVED. 
FN29  THERE IS NO INDICATION WHY CONGRESS DID NOT EMBODY A SIMILAR
PROVISION IN THE ACT UNDER CONSIDERATION IN THIS CASE.  ABSENCE OF SUCH
PROVISIONS, HOWEVER, HAS NOT PREVENTED THE COURTS FROM INVALIDATING
WAIVERS WHERE THE LEGISLATIVE POLICY WOULD BE THWARTED BY PERMITTING
SUCH CONTRACTS.  FN30  THE DECISION IN THE INSTANT CASE IS BASED ON THE
LEGISLATIVE POLICY BEHIND THIS ENACTMENT AND ISSUES ARISING UNDER OTHER
ACTS HAVING DIFFERENT LEGISLATIVE BACKGROUNDS ARE NOT CONCLUSIVE IN
DETERMINING THE LEGISLATIVE INTENT WITH RESPECT TO THE FAIR LABOR
STANDARDS ACT.  FAILURE TO PROVIDE A METHOD OF WAIVING CLAIMS UNDER THE
ACT CAN SUPPORT CONTRARY INFERENCES, THAT SUCH WAIVERS WERE TO BE
ALLOWED OR THAT THE PROVISIONS OF THE ACT STATE A SETTLED POLICY WHICH
CANNOT BE MODIFIED BY PRIVATE CONTRACTS.  WE ARE OF THE OPINION THAT
THE LEGISLATIVE HISTORY AND PROVISIONS OF THE ACT SUPPORT A VIEW
PROHIBITING SUCH WAIVER.  AS WAS STATED IN WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379, 397, "'WHILE IN INDIVIDUAL CASES HARDSHIP MAY
RESULT, THE RESTRICTION WILL ENURE TO THE BENEFIT OF THE GENERAL CLASS
OF EMPLOYEES IN WHOSE INTEREST THE LAW IS PASSED AND SO TO THAT OF THE
COMMUNITY AT LARGE.'  (ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525.) 
ID., P. 563." 

THE INVALIDITY OF THE RELEASE OR WAIVER IN NO. 445 MAKES THE RELEASE
AND WAIVER INVOLVED IN NO. 554 A FORTIORI INVALID.  IN THE LATTER CASE
BOTH THE FEDERAL DISTRICT COURT  FN31  AND THE CIRCUIT COURT OF APPEALS
FN32  FOUND "THAT BOTH PARTIES KNEW MORE THAN $500.00 WAS DUE  ..." 
AT THE TIME THE PETITIONER TENDERED $500 TO THE RESPONDENT IN RETURN
FOR A COMPREHENSIVE RELEASE COVERING ALL OF THE RESPONDENT'S CLAIMS
AGAINST THE PETITIONER EMPLOYER.  THUS IN THAT CASE THE EMPLOYER AND
EMPLOYEE ATTEMPTED BY MEANS OF THAT RELEASE TO WAIVE THE RIGHT TO THE
BASIC STATUTORY MINIMUM AS WELL AS THE RIGHT TO LIQUIDATED DAMAGES. 
THIS ATTEMPTED RELEASE AND WAIVER OF RIGHTS UNDER THE ACT WAS
ABSOLUTELY VOID.  SEE SMITH V. MCCULLOUGH, 270 U.S. 456, 465.  WHEN
PETITIONER ATTEMPTED TO PAY THE ADDITIONAL SUM DUE AS A STATUTORY
MINIMUM, THE RESPONDENT REFUSED TO ACCEPT PAYMENT, THUS THERE WAS NO
VALID SETTLEMENT WHICH WOULD OPERATE TO BAR THE RESPONDENT EMPLOYEE'S
RIGHT TO RECOVER THE BALANCE OF THE STATUTORY MINIMUM WAGE STILL DUE
AND LIQUIDATED DAMAGES EQUAL IN AMOUNT TO THE ENTIRE SUM OF WAGES WHICH
THE EMPLOYER HAD NOT PAID PROMPTLY. 

OUR DECISION OF THE ISSUES RAISED IN NO. 445 AND NO. 554 HAS NOT
NECESSITATED A DETERMINATION OF WHAT LIMITATION, IF ANY, SEC. 16(B) OF
THE ACT PLACES ON THE VALIDITY OF AGREEMENTS BETWEEN AN EMPLOYER AND
EMPLOYEE TO SETTLE CLAIMS ARISING UNDER THE ACT IF THE SETTLEMENT IS
MADE AS THE RESULT OF A BONA FIDE DISPUTE BETWEEN THE TWO PARTIES, IN
CONSIDERATION OF A BONA FIDE COMPROMISE AND SETTLEMENT.  NEITHER OF THE
ABOVE-MENTIONED CASES PRESENTED SUCH ISSUES FOR OUR CONSIDERATION.  CF.
DUNCAN V. THOMPSON, 315 U.S. 1, 7; GARRETT V. MOORE-MCCORMACK CO., 317
U.S. 239; TENNESSEE COAL CO. V. MUSCODA LOCAL, 321 U.S. 590, 603. 

THERE REMAINS TO BE CONSIDERED THE QUESTION WHETHER AN EMPLOYEE
RECOVERING MINIMUM WAGES AND LIQUIDATED DAMAGES UNDER THE PROVISIONS OF
SEC. 16(B) IS ALSO ENTITLED TO INTEREST ON THE SUMS SO RECOVERED.  FN33
WE GRANTED CERTIORARI IN NO. 421  FN34  TO THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT, LIMITED TO THE QUESTION OF THE
PROPRIETY OF ALLOWING INTEREST ON RECOVERIES OF UNPAID OVERTIME
COMPENSATION AND LIQUIDATED DAMAGES UNDER THE ACT.  CERTIORARI WAS
GRANTED BECAUSE THAT COURT DECIDED AN IMPORTANT FEDERAL QUESTION OF
SUBSTANCE WHICH HAD NOT PREVIOUSLY BEEN DETERMINED BY THIS COURT.  THE
JURISDICTION OF THIS COURT IN NO. 421 RESTS ON SEC. 240(A) OF THE
JUDICIAL CODE. 

WE ARE OF THE OPINION THAT THE QUESTION OF THE RIGHT TO INTEREST ON
SUMS RECOVERABLE UNDER THE PROVISIONS OF SEC. 16(B) OF THE ACT
CONSTITUTES A QUESTION OF FEDERAL, NOT LOCAL, LAW.  BOARD OF
COMMISSIONERS V. UNITED STATES, 308 U.S. 343, 349-50; SEE PRUDENCE
CORP. V. GEIST, 316 U.S. 89, 95; GARRETT V. MOORE-MCCORMACK CO., 317
U.S. 239.  INTEREST IS NOT RECOVERABLE IN JUDGMENTS OBTAINED UNDER SEC.
16(B).  AS WAS INDICATED IN OUR DECISION IN OVERNIGHT MOTOR CO. V.
MISSEL, SUPRA, SEC. 16(B) AUTHORIZES THE RECOVERY OF LIQUIDATED DAMAGES
AS COMPENSATION FOR DELAY IN PAYMENT OF SUMS DUE UNDER THE ACT.  SINCE
CONGRESS HAS SEEN FIT TO FIX THE SUMS RECOVERABLE FOR DELAY, IT IS
INCONSISTENT WITH CONGRESSIONAL INTENT TO GRANT RECOVERY OF INTEREST ON
SUCH SUMS IN VIEW OF THE FACT THAT INTEREST IS CUSTOMARILY ALLOWED AS
COMPENSATION FOR DELAY IN PAYMENT.  TO ALLOW AN EMPLOYEE TO RECOVER THE
BASIC STATUTORY WAGE AND LIQUIDATED DAMAGES, WITH INTEREST, WOULD HAVE
THE EFFECT OF GIVING AN EMPLOYEE DOUBLE COMPENSATION FOR DAMAGES
ARISING FROM DELAY IN THE PAYMENT OF THE BASIC MINIMUM WAGES.  SEE
ROYAL INDEMNITY CO. V. UNITED STATES, 313 U.S. 289, 296.  ALLOWANCE OF
INTEREST ON MINIMUM WAGES AND LIQUIDATED DAMAGES RECOVERABLE UNDER SEC.
16(B) TENDS TO PRODUCE THE UNDESIRABLE RESULT OF ALLOWING INTEREST ON
INTEREST.  SEE CHEROKEE NATION V. UNITED STATES, 270 U.S. 476, 490. 
CONGRESS BY ENUMERATING THE SUMS RECOVERABLE IN AN ACTION UNDER SEC.
16(B) MEANT TO PRECLUDE RECOVERY OF INTEREST ON MINIMUM WAGES AND
LIQUIDATED DAMAGES.  FN35 

THE JUDGMENTS IN NO. 445 AND NO. 554 ARE HEREBY AFFIRMED.  THE
JUDGMENT IN NO. 421 IS REVERSED IN SO FAR AS IT INCLUDED INTEREST. 

FN1  SECTION 16(B) PROVIDES: 

"ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 6 OR SECTION 7
OF THIS ACT SHALL BE LIABLE TO THE EMPLOYEE OR EMPLOYEES AFFECTED IN
THE AMOUNT OF THEIR UNPAID MINIMUM WAGES, OR THEIR UNPAID OVERTIME
COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL EQUAL AMOUNT AS
LIQUIDATED DAMAGES.  ACTION TO RECOVER SUCH LIABILITY MAY BE MAINTAINED
IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE OR MORE EMPLOYEES FOR
AND IN BEHALF OF HIMSELF OR THEMSELVES AND OTHER EMPLOYEES SIMILARLY
SITUATED, OR SUCH EMPLOYEE OR EMPLOYEES MAY DESIGNATE AN AGENT OR
REPRESENTATIVE TO MAINTAIN SUCH ACTION FOR AND IN BEHALF OF ALL
EMPLOYEES SIMILARLY SITUATED.  THE COURT IN SUCH ACTION SHALL, IN
ADDITION TO ANY JUDGMENT AWARDED TO THE PLAINTIFF OR PLAINTIFFS, ALLOW
A REASONABLE ATTORNEY'S FEE TO BE PAID BY THE DEFENDANT, AND COSTS OF
THE ACTION." 

FN2  THE NEW YORK APPELLATE TERM HELD THAT THE FAIR LABOR STANDARDS
ACT APPLIED TO THE PETITIONER'S OPERATION OF ITS BUILDING.  THIS
HOLDING WAS AFFIRMED BY THE APPELLATE DIVISION AND THE COURT OF
APPEALS.  SEE NOTES 5 AND 6.  PETITIONER DID NOT RAISE THIS ISSUE IN
HIS PETITION FOR CERTIORARI. 

FN3  SECTION 7(A) PROVIDES: 

"NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION,
EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE - 

(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION, 

(2) FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND YEAR
FROM SUCH DATE, OR 

(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED
AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT
WHICH HE IS EMPLOYED." 

FN4  O'NEIL V. BROOKLYN SAVINGS BANK, 180 MISC. 542, 43 N.Y.S.2D 25. 

FN5  O'NEIL V. BROOKLYN SAVINGS BANK, 267 APP. DIV. 317, 46 N.Y.S.2D
631. 

FN6  AFFIRMED WITHOUT OPINION, 293 N.Y. 666, 56 N.E.2D 259. 

FN7  323 U.S. 698. 

FN8  MADDRIX V. DIZE, 7 WAGE HOUR REP. 313(JAN.  31, 1944, NOT
OFFICIALLY REPORTED). 

FN9  DIZE V. MADDRIX, 144 F.2D 584. 

FN10  323 U.S. 702. 

FN11  SEE NOTE 1 SUPRA. 

FN12  THE RESPONDENT, EMPLOYEE, WAS INFORMED BY A THIRD PERSON SOME
TWO YEARS AFTER HE LEFT THE PETITIONER'S EMPLOYMENT THAT PETITIONER HAD
SOME MONEY FOR HIM.  RESPONDENT WENT TO PETITIONER'S OFFICES. 
ACCORDING TO RESPONDENT'S TESTIMONY, THERE WAS NO DISCUSSION OR DISPUTE
PRIOR TO HIS ACCEPTANCE OF THE CHECK GIVEN HIM BY THE PETITIONER EITHER
AS TO THE EXISTENCE OF LIABILITY UNDER THE ACT OR AS TO THE AMOUNT OF
SUCH LIABILITY.  VIEWED MOST FAVORABLY PETITIONER'S WITNESS' TESTIMONY
WAS MERELY TO THE EFFECT THAT THE PETITIONER HAD SUBJECTIVE DOUBTS AS
TO THE EXISTENCE AND AMOUNT OF ITS LIABILITY.    FN13  FOR A GENERAL
DISCUSSION OF THE PROBLEM RAISED BY THIS CASE, SEE HERMAN, THE
ADMINISTRATION AND ENFORCEMENT OF THE FAIR LABOR STANDARDS ACT, 6 LAW
AND CONTEMP.  PROBS.  368; TEPPER, CONSENT JUDGMENTS AND CONTEMPT CASES
UNDER THE FAIR LABOR STANDARDS ACT OF 1938, 22 BOSTON UNIV.  L. REV.
390; DETERMINATION OF WAGES UNDER FAIR LABOR STANDARDS ACT, 43 COL. L.
REV. 355; 57 HARV. L. REV. 257. 

FN14  SEE UNITED STATES V. MORLEY CONSTRUCTION CO., 98 F.2D 781, 788;
LABOR BOARD V. AMERICAN POTASH & CHEMICAL CORP., 113 F.2D 232, 118 F.2D
630; LABOR BOARD V. STACKPOLE CARBON CO., 128 F.2D 188, 190; WATERMAN
S.S. CORP. V. LABOR BOARD, 119 F.2D 760; PERRY V. W.L. HUFFMAN
AUTOMOBILE CO., 104 NEB. 211, 175 N.W. 1021, REVERSED ON REHEARING, 104
NEB. 214, 179 N.W. 501; HARRINGTON V. DEPT. OF LABOR & INDUSTRY, 252
MICH. 87, 233 N.W. 361. 

FN15  THE PROVISIONS OF SEC. 16(B) APPEARED FOR THE FIRST TIME IN THE
BILL REPORTED BY A CONFERENCE COMMITTEE OF BOTH HOUSES.  THE COMMITTEE
REPORT SIMPLY STATED, H. REP. NO. 2738, 75TH CONG., 3D SESS., P. 33: 

"SECTION 16 OF THE CONFERENCE AGREEMENT PROVIDES A FINE OF NOT MORE
THAN $10,000, OR IMPRISONMENT FOR NOT MORE THAN 6 MONTHS, OR BOTH, FOR
VIOLATIONS OF THE ACT.  NO PERSON IS TO BE IMPRISONED UPON CONVICTION
FOR A FIRST OFFENSE.  THIS SECTION ALSO PROVIDES FOR CIVIL REPARATIONS
FOR VIOLATIONS OF THE WAGES AND HOURS PROVISIONS.  IF AN EMPLOYEE IS
EMPLOYED FOR LESS THAN THE LEGAL MINIMUM WAGE, OR IF HE IS EMPLOYED IN
EXCESS OF THE SPECIFIED HOURS WITHOUT RECEIVING THE PRESCRIBED PAYMENT
FOR OVERTIME, HE MAY RECOVER FROM HIS EMPLOYER TWICE THE AMOUNT BY
WHICH THE COMPENSATION HE SHOULD HAVE RECEIVED EXCEEDS THAT WHICH HE
ACTUALLY RECEIVED." 

THERE WERE THREE LEGISLATIVE REPORTS ON PREDECESSOR BILLS BUT THESE
BILLS DID NOT CONTAIN ANY PROVISION ANALOGOUS TO SEC. 16(B).  S. REP.
NO. 884, 75TH CONG., 1ST SESS.; H. REP. NO. 1452, 75TH CONG., 1ST
SESS.; H. REP. NO. 2182, 75TH CONG., 3D SESS. 

FN16  AS INDICATED IN NOTE 15, SUPRA, SEC. 16(B) WAS FIRST
INCORPORATED INTO THE FAIR LABOR STANDARDS ACT OF 1938 IN THE BILL
REPORTED OUT OF THE CONFERENCE COMMITTEE OF BOTH HOUSES.  THE DEBATES
IN BOTH HOUSES PRIOR TO ADOPTION OF THE CONFERENCE REPORT WERE QUITE
BRIEF, 83 CONG. REC. 9158-78, 9246-67.  THE ONLY REFERENCE TO SEC.
16(B) WAS BY REPRESENTATIVE KELLER WHO STATED, 83 CONG. REC. P. 9264; 

"AMONG THE PROVISIONS FOR THE ENFORCEMENT OF THE ACT AN OLD PRINCIPLE
HAS BEEN ADOPTED AND WILL BE APPLIED TO NEW USES.  IF THERE SHALL OCCUR
VIOLATIONS OF EITHER THE WAGES OR HOURS, THE EMPLOYEES CAN THEMSELVES,
OR BY DESIGNATED AGENT OR REPRESENTATIVES, MAINTAIN AN ACTION IN ANY
COURT TO RECOVER THE WAGES DUE THEM AND IN SUCH A CASE THE COURT SHALL
ALLOW LIQUIDATED DAMAGES IN ADDITION TO THE WAGES DUE EQUAL TO SUCH
DEFICIENT PAYMENT AND SHALL ALSO ALLOW A REASONABLE ATTORNEY'S FEES AND
ASSESS THE COURT COSTS AGAINST THE VIOLATOR OF THE LAW SO THAT
EMPLOYEES WILL NOT SUFFER THE BURDEN OF AN EXPENSIVE LAWSUIT.  THE
PROVISION HAS THE FURTHER VIRTUE OF MINIMIZING THE COST OF ENFORCEMENT
BY THE GOVERNMENT.  IT IS BOTH A COMMON-SENSE AND ECONOMICAL METHOD OF
REGULATION.  THE BILL HAS OTHER PENALTIES FOR VIOLATIONS AND OTHER
JUDICIAL REMEDIES, BUT THE PROVISION WHICH I HAVE MENTIONED PUTS
DIRECTLY INTO THE HANDS OF THE EMPLOYEES WHO ARE AFFECTED BY VIOLATION
THE MEANS AND ABILITY TO ASSERT AND ENFORCE THEIR OWN RIGHTS, THUS
AVOIDING THE ASSUMPTION BY GOVERNMENT OF THE SOLE RESPONSIBILITY TO
ENFORCE THE ACT." 

FN17  H. REP. NO. 2738, 75TH CONG., 3D SESS., PP. 1, 13, 21 AND 28. 

FN18  THE LEGISLATIVE DEBATES INDICATE THAT THE PRIME PURPOSE OF THE
LEGISLATION WAS TO AID THE UNPROTECTED, UNORGANIZED AND LOWEST PAID OF
THE NATION'S WORKING POPULATION; THAT IS, THOSE EMPLOYEES WHO LACKED
SUFFICIENT BARGAINING POWER TO SECURE FOR THEMSELVES A MINIMUM
SUBSISTENCE WAGE.  81 CONG. REC. 7652, 7672, 7885; 82 CONG. REC. 1386,
1395, 1491, 1505, 1507; 83 CONG. REC. 7283, 7298, 9260, 9265.  SEE ALSO
H. REP. NO. 1452, 75TH CONG., 1ST SESS., P. 9; S. REP. NO. 884, 75TH
CONG., 1ST SESS., PP. 3-4. 

FN19  SEC. 2(A), 52 STAT. 1060. 

FN20  THE NECESSITY OF PROMPT PAYMENT TO WORKERS OF WAGES HAS LONG
BEEN RECOGNIZED BY CONGRESS AS WELL AS BY STATE LEGISLATURES.  NUMEROUS
STATUTORY PROVISIONS HAVE BEEN ADOPTED TO INSURE PROMPT PAYMENT.  SEE
FOR EXAMPLE, 33 U.S.C. SEC. 914(E) AND (F); 46 U.S.C. SEC. 596; WIS.
REV. STAT. 1941, SEC. 103.39; N.Y. LABOR LAW, C. 31, SEC. 196; CALIF.
LABOR CODE, 1937, SECS. 204, 205, 219. 

AS TO THE IMPORTANCE TO THE WORKER OF RECEIVING PROMPT PAYMENT, SEE
LABOR LAWS AND THEIR ADMINISTRATION, 1936 BULL.  NO. 629, U.S. DEPT. OF
LABOR, BUREAU OF LABOR STATISTICS, P. 139. 

FN21  FLEMING V. POST, 146 F.2D 441; SENECA COAL & COKE CO. V.
LOFTON, 136 F.2D 359; RIGOPOULOS V. KERVAN, 140 F.2D 506; BIRBALAS V.
CUNEO PRINTING INDUSTRIES, 140 F.2D 826; TRAVIS V. RAY, 41 F.SUPP.  6;
HUTCHINSON V. WILLIAM C. BARRY, INC., 44 F.SUPP.  829.  CONTRA:  GUESS
V. MONTAGUE, 140 F.2D 500. 

THERE HAS BEEN LESS UNANIMITY OVER THE RIGHT TO COMPROMISE CLAIMS
UNDER THE STATUTE IN CASES INVOLVING A BONA FIDE DISPUTE.  SEE ATLANTIC
CO. V. BROUGHTON, 146 F.2D 480; FLEMING V. POST, SUPRA; FLEMING V.
WARSHAWSKY & CO., 123 F.2D 622; DONAHUE V. SUSQUEHANNA COLLIERIES CO.,
138 F.2D 3; RIGOPOULOS V. KERVAN, SUPRA; DAVID V. ATLANTIC CO., 69 GA.
APP. 643, 26 S.E.2D 650.  FOR DISCUSSION OF THE RELEASE AND SETTLEMENT
PROBLEM AS IT HAS ARISEN UNDER THE STATE WORKMEN'S COMPENSATION ACTS,
SEE DODD, ADMINISTRATION OF WORKMEN'S COMPENSATION, 186 ET SEQ. 

FOR LOWER FEDERAL COURT DECISIONS HOLDING THAT RIGHTS TO UNPAID
MINIMUM WAGES AND OVERTIME COMPENSATION CONSTITUTE A SINGLE RIGHT, SEE
FLEMING V. POST, SUPRA; BIRBALAS V. CUNEO PRINTING INDUSTRIES, SUPRA.
CF. BUCKLEY V. OCEANIC S.S. CO., 5 F.2D 545. 

FN22  SEE STATEMENT BY SECRETARY OF LABOR, JOINT HEARINGS, COMMITTEE
ON EDUCATION AND LABOR, UNITED STATES SENATE, AND COMMITTEE ON LABOR OF
HOUSE OF REPRESENTATIVES, 75TH CONG., 1ST SESS., ON S. 2475 AND H.R.
7200, PART 1, P. 181.  SEE ALSO NOTE 16, SUPRA. 

FN23  JOINT HEARINGS, OP. CIT., SUPRA, NOTE 22, PART 2, P. 457.  SEE
ALSO NOTE 16, SUPRA. 

FN24  SEE SAGE V. HAMPE, 235 U.S. 99, 105; SMITH V. MCCULLOUGH, 270
U.S. 456, 465; MUSCHANY V. UNITED STATES, 324 U.S. 49, 64. 

FN25  H. REP. NO. 2182, 75TH CONG., 3D SESS., PP. 6-7, STATES: "
THERE ARE TO BE NO DIFFERENTIALS EITHER BETWEEN SECTIONS OF THE UNITED
STATES, BETWEEN INDUSTRIES, OR BETWEEN EMPLOYERS.  NO EMPLOYER IN ANY
PART OF THE UNITED STATES IN ANY INDUSTRY AFFECTING INTERSTATE COMMERCE
NEED FEAR THAT HE WILL BE REQUIRED BY LAW TO OBSERVE WAGE AND HOUR
STANDARDS HIGHER THAN THOSE APPLICABLE TO HIS COMPETITORS.  NO EMPLOYEE
IN ANY PART OF THE UNITED STATES IN ANY INDUSTRY AFFECTING INTERSTATE
COMMERCE NEED FEAR THAT THE FAIR LABOR STANDARDS MAINTAINED BY HIS
EMPLOYER WILL BE JEOPARDIZED BY OPPRESSIVE LABOR STANDARDS MAINTAINED
BY THOSE WITH WHOM HIS EMPLOYER COMPETES." 

FN26  SEC. 16, 52 STAT. 1069. 

FN27  SEE NOTE 1, SUPRA. 

FN28  SECTION 20(A) AND (B) OF THE ORIGINAL BILLS INTRODUCED INTO THE
HOUSE AND SENATE PROVIDED AS FOLLOWS: 

"SEC. 20.  (A)  ANY CONTRACT, AGREEMENT, OR UNDERSTANDING FOR THE
EMPLOYMENT OF ANY PERSON IN VIOLATION OF ANY PROVISION OF THIS ACT OR
OF A REGULATION OR ORDER THEREUNDER SHALL BE NULL AND VOID. 

"(B)  ANY CONTRACT, AGREEMENT, UNDERSTANDING, CONDITION, STIPULATION,
OR PROVISION BINDING ANY PERSON TO WAIVE COMPLIANCE WITH ANY PROVISION
OF THIS ACT OR WITH ANY REGULATION OR ORDER THEREUNDER SHALL BE NULL
AND VOID." 

S. 2475, 75TH CONG., 1ST SESS., INTRODUCED MAY 24, 1937; H.R. 7200,
75TH CONG., 1ST SESS., INTRODUCED MAY 24, 1937. 

EXCEPT FOR RENUMBERING OF THE SECTION AND ONE SLIGHT CHANGE IN
LANGUAGE, THIS PROVISION REMAINED IN THE BILL AND ITS VARIOUS
AMENDMENTS, APPARENTLY UNTIL IT WAS ELIMINATED BY THE CONFERENCE
COMMITTEE.  SECTION 17, S. 2475, CALENDAR NO. 905(REPORT NO. 884), 75TH
CONG., 1ST SESS., REPORTED WITH AN AMENDMENT, JULY 6, 1937; SEC. 17, S.
2475, UNION CALENDAR NO. 535(REPORT NO. 1452), 75TH CONG., 1ST SESS.,
REPORTED WITH AMENDMENT, AUG. 6, 1937; SEC. 16, S. 2475, 75TH CONG., 2D
SESS., AMENDED AND RECOMMITTED, DEC. 17, 1937.  THE REASON FOR
ELIMINATING THIS PROVISION FROM THE FINAL BILL DOES NOT APPEAR.  IT WAS
DONE IN THE COURSE OF THE GENERAL REVISION OF THE BILL IN THE
CONFERENCE COMMITTEE. 

FN29  THE FOLLOWING FEDERAL STATUTES CONTAIN EXPRESS PROVISIONS
RELATING TO THE WAIVER OR SETTLEMENT OF CLAIMS UNDER THEM:
LONGSHOREMEN'S AND HARBOR WORKERS' COMP. ACT, 33 U.S.C. SECS. 908(I),
915(B), 916; FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SEC. 55; JONES
ACT, 46 U.S.C. SEC. 688; SETTLEMENT OF WAGE CLAIMS OF MERCHANT SEAMEN,
46 U.S.C. SECS. 597, 644.  THE FEDERAL COURTS HAVE INTERPRETED THESE
PROVISIONS STRICTLY SO AS TO PROTECT THE EMPLOYEE.  GARRETT V. MOORE
MCCORMACK CO., 317 U.S. 239; DUNCAN V. THOMPSON, 315 U.S. 1; PACIFIC
MAIL S.S. CO. V. LUCAS, 258 U.S. 266; ARROW STEVEDORE CO. V. PILLSBURY,
88 F.2D 446; PACIFIC EMPLOYERS INS. CO. V. PILLSBURY, 130 F.2D 21;
HENDERSON V. GLENS FALLS INDEMNITY CO., 134 F.2D 320; WESTENRIDER V.
UNITED STATES, 134 F.2D 772. 

FN30  SEE NOTE 14, SUPRA. 

FN31  7 WAGE HOUR REP. 313. 

FN32  144 F.2D 584, 585. 

FN33  IN NO. 445 THE NEW YORK APPELLATE TERM ALLOWED INTEREST ON
UNPAID LIQUIDATED DAMAGES.  O'NEIL V. BROOKLYN SAVINGS BANK, 180 MISC.
542, 43 N.Y.S.2D 25.  THIS WAS AFFIRMED ON SUBSEQUENT APPEALS TO HIGHER
STATE COURTS.  SEE NOTES 5 AND 6 SUPRA.  SINCE PETITIONER IN NO. 445
DID NOT SEEK CERTIORARI ON THIS ISSUE, WE HAVE NOT EXAMINED IT.
CONNECTICUT RY. CO. V. PALMER, 305 U.S. 493, 495. 

THE FEDERAL DISTRICT COURT AND CIRCUIT COURT OF APPEALS IN NO. 554
DID NOT AWARD THE EMPLOYEE IN THAT CASE INTEREST ON SUMS ADJUDGED DUE
AS UNPAID OVERTIME WAGES AND LIQUIDATED DAMAGES. 

FN34  323 U.S. 698. 

FN35  SEE NOTE 1, SUPRA. 

MR. CHIEF JUSTICE STONE, DISSENTING IN NO. 445 AND CONCURRING IN NO.
554. 

MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER AND I THINK THE JUDGMENT
SHOULD BE REVERSED IN BROOKLYN SAVINGS BANK V. O'NEIL, NO. 445, AND
AFFIRMED IN DIZE V. MADDRIX, NO. 554. 

                               NO. 445. 

RESPONDENT WAS EMPLOYED BY PETITIONER IN NEW YORK, AND IN NEW YORK
GAVE TO PETITIONER, WITHOUT CONSIDERATION, A PURPORTED WRITTEN RELEASE
OF ITS OBLIGATION TO PAY THE STATUTORY LIQUIDATED DAMAGES PRESCRIBED BY
SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT.  SECTION 243 OF THE DEBTOR
AND CREDITOR LAW OF NEW YORK DECLARES A WRITTEN INSTRUMENT PURPORTING
TO RELEASE "ALL CLAIMS, DEBTS, DEMANDS OR OBLIGATIONS  ...  SHALL NOT
BE INVALID BECAUSE OF THE ABSENCE OF CONSIDERATION OR OF A SEAL." 
COUNSEL ARE AGREED THAT, UNLESS THE WORDS OR POLICY OF THE FAIR LABOR
STANDARDS ACT PRECLUDE, THE WRITTEN RELEASE WAS AS EFFECTIVE TO
DISCHARGE THE OBLIGATION FOR LIQUIDATED DAMAGES AS WAS THE RELEASE
UNDER SEAL AT COMMON LAW. 

WE FIND NOTHING IN THE FAIR LABOR STANDARDS ACT TO PREVENT THE
EFFECTIVE OPERATION OF SUCH A RELEASE UPON THE CAUSE OF ACTION FOR
LIQUIDATED DAMAGES MORE THAN ANY OTHER.  SECTION 16(B) OF THE ACT
AUTHORIZES THE EMPLOYEE TO RECOVER LIQUIDATED DAMAGES FROM AN EMPLOYER
WHO VIOLATES THE DUTY IMPOSED BY SECS. 6 AND 7 OF THE ACT TO PAY THE
PRESCRIBED MINIMUM AND OVERTIME WAGES.  THAT DUTY IS EXPRESSED IN SECS.
6 AND 7 IN TERMS OF A COMMAND TO THE EMPLOYER.  WILLFUL FAILURE TO OBEY
IT IS MADE A CRIMINAL OFFENSE BY SECS. 15(A)(2) AND 16(A), AND
AUTHORITY TO ENJOIN VIOLATIONS OF SECS. 6 AND 7 IS GIVEN BY SECS. 15
AND 17. 

THESE PROVISIONS AND THESE ALONE AFFORD SOME BASIS FOR INFERRING A
CONGRESSIONAL POLICY AGAINST THE RELEASE OF MINIMUM AND OVERTIME
WAGES.  BUT THE ACT PLACES THE RIGHT TO RECOVER LIQUIDATED DAMAGES
AUTHORIZED BY SEC. 16(B) ON A VERY DIFFERENT FOOTING.  THAT SECTION
EXPRESSES NO COMMAND.  IT MERELY IMPOSES A CIVIL LIABILITY ON THE
EMPLOYER AND GIVES AN ACTION TO THE EMPLOYEE TO ENFORCE THE LIABILITY. 
FAILURE BY THE EMPLOYER TO PAY THE PRESCRIBED LIQUIDATED DAMAGES IS NOT
MADE A CRIMINAL OFFENSE BY SECS. 15 AND 16 AND MAY NOT BE ENJOINED
UNDER SECS. 15 AND 17. 

THE STUDIOUS AVOIDANCE OF ANY PROVISION MAKING THE NON-PAYMENT OF THE
LIQUIDATED DAMAGES A PUBLIC WRONG, BY THE OMISSIONS OF SANCTIONS WHICH
THE STATUTE DOES IMPOSE FOR THE FAILURE TO PAY MINIMUM AND OVERTIME
WAGES, IS THE MOST PERSUASIVE KIND OF EVIDENCE THAT IT WAS THE
CONGRESSIONAL PURPOSE TO LEAVE UNDISTURBED THE GENERAL POLICY OF THE
LAW THAT A MERE PRIVATE CLAIM FOR DAMAGES MAY BE RELEASED AT THE WILL
OF THE CLAIMANT.  IT IS NOT AN ANSWER TO SAY THAT "THERE IS NO REASON
FOR MAKING AN EMPLOYER SUBJECT TO A CRIMINAL PENALTY OR AN INJUNCTION
FOR FAILURE TO PAY LIQUIDATED DAMAGES," SINCE THEY ARE "COLLECTIBLE AS
PRIVATE DAMAGES."  IT IS PRECISELY BECAUSE THE STATUTE IN THIS CASE HAS
IN EVERY RESPECT TREATED THE CLAIM FOR LIQUIDATED DAMAGES AS A PRIVATE
CLAIM WHILE IMPOSING SANCTIONS, AS FOR A PUBLIC WRONG, FOR NON-PAYMENT
OF MINIMUM AND OVERTIME WAGES, THAT WE MUST INFER THAT CONGRESS
INTENDED THAT THE CLAIM FOR LIQUIDATED DAMAGES SHOULD HAVE THE STATUS
OF PRIVATE CLAIMS, WHICH ARE SUBJECT TO RELEASE, A STATUS WHICH THE
STATUTE DENIED TO MINIMUM AND OVERTIME WAGES. 

THIS POINTED DIFFERENCE IN THE TREATMENT OF THE TWO CLASSES OF CLAIMS
IS UNDERSCORED BY THE COMPLETE LACK OF ANY LEGISLATIVE HISTORY
SUGGESTING THAT THERE WAS ANY CONGRESSIONAL PURPOSE TO TREAT ALIKE THE
TWO CLASSES OF CLAIMS WHICH IT TREATED SO DIFFERENTLY IN THE STATUTE. 
IN ITS PROGRESS THROUGH CONGRESS THERE WAS STRICKEN FROM THE BILL,
WHICH WAS FINALLY ENACTED AS THE FAIR LABOR STANDARDS ACT, A CLAUSE
PROVIDING THAT ANY AGREEMENT FOR WAIVER OF COMPLIANCE WITH ANY
PROVISION OF THE ACT SHOULD BE VOID.  SECTION 17(B), S. 2475, AS PASSED
BY SENATE, 75TH CONG., 1ST SESS., 1937.  WITH THIS PROVISION
ELIMINATED, THE MANDATORY TERMS OF SECS. 6 AND 7, THE CRIMINAL
PENALTIES OF THE ACT, AND ITS PROVISION FOR RELIEF IN EQUITY, AFFORD
THE SOLE GROUND TO BE FOUND EITHER WITHIN OR WITHOUT THE STATUTE FOR
ANY INFERENCE OF A CONGRESSIONAL POLICY AGAINST THE RELEASE OF CLAIMS
ARISING UNDER THE ACT.  THESE FACTORS CONCERN ONLY THE MINIMUM AND
OVERTIME WAGES.  THEY NEITHER SUPPORT NOR SUGGEST ANY CONGRESSIONAL
POLICY AGAINST RELEASE OF LIQUIDATED DAMAGES TO WHICH THEY ARE
INAPPLICABLE AND WHOLLY UNRELATED.    IF SUCH AN UNDECLARED POLICY IS
TO BE INFERRED, IT MUST BE INFERRED FROM THE STATUTE, READ IN ITS
APPROPRIATE SETTING.  THE STATUTE IS SILENT AS TO ANY EXCEPTIONAL
POLICY WITH RESPECT TO CLAIMS FOR UNLIQUIDATED DAMAGES - A SILENCE
WHICH IS GIVEN MEANING BY THE PROVISIONS AFFIRMATIVELY MAKING NON
PAYMENT OF MINIMUM AND OVERTIME WAGES A PUBLIC WRONG.  ANY INFERENCE
THAT A RELEASE OF MINIMUM AND OVERTIME WAGES IS INVALID MUST BE BECAUSE
THE RELEASE IS AN AGGRAVATION OF THE PUBLIC WRONG.  BUT TO DRAW THAT
INFERENCE IS TO FORECLOSE THE POSSIBILITY OF A LIKE INFERENCE WITH
RESPECT TO LIQUIDATED DAMAGES, THE NON-PAYMENT OF WHICH IS NOT MADE A
PUBLIC WRONG. 

WE HELD IN OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, THAT THE
PROVISION FOR LIQUIDATED DAMAGES IS NOT PUNITIVE.  HENCE IT CANNOT IN
ITSELF BE SAID EITHER TO HAVE CREATED OR SANCTIONED A PUBLIC RIGHT OR
INTEREST IN THE RECOVERY OF LIQUIDATED DAMAGES.  IN VIEW OF THE
UNCERTAIN COVERAGE OF THE ACT WE CANNOT IGNORE THE FACT THAT THE
STATUTORY LIABILITY MAY BE HARSH IN ITS APPLICATION AND ENABLE THE
EMPLOYEE TO RECOVER AN AMOUNT FAR IN EXCESS OF ANY DAMAGE WHICH HE HAS
IN FACT SUFFERED.  ALL THESE CONSIDERATIONS PERSUASIVELY SUGGEST THAT
CONGRESS HAS ADOPTED NO POLICY WHICH PRECLUDES THE EMPLOYEE FROM
RELEASING, AS IN THE CASE OF OTHER CLAIMS, THE CLAIM FOR LIQUIDATED
DAMAGES WHEN THE RELEASE CONFORMS TO LOCAL LAW AND IS PROCURED WITHOUT
OVERREACHING OR UNFAIRNESS. 

ON THE CONTRARY THE PROVISIONS OF THE ACT SHOW, AND THE LEGISLATIVE
HISTORY EMPHASIZES, THAT CONGRESS INTENDED TO TREAT THE LIQUIDATED
DAMAGE OBLIGATION DIFFERENTLY FROM ITS COMMAND TO PAY MINIMUM AND
OVERTIME WAGES.  BECAUSE OF THIS DIFFERENCE WE CANNOT SAY THAT IT
INTENDED TO PLACE THE EMPLOYEE SO FAR IN TUTELAGE AS NOT TO BE FREE TO
GIVE, AND THE EMPLOYER TO OBTAIN, A RELEASE OF WHAT IS BY THE TERMS OF
THE STATUTE NOTHING MORE THAN A CAUSE OF ACTION FOR DAMAGES WHICH IN
FACT HE MAY OR MAY NOT HAVE SUFFERED. 

                               NO. 554. 

THERE APPEARS TO HAVE BEEN NO ACCORD AND SATISFACTION IN THIS CASE,
AND FOR THE REASONS STATED IN OUR OPINION IN BROOKLYN SAVINGS BANK V.
O'NEIL, NO. 445, THE ATTEMPTED RELEASE BY RESPONDENT OF HIS CLAIM FOR
OVERTIME WAGES WAS VOID AS AGAINST THE POLICY OF THE FAIR LABOR
STANDARDS ACT.  BECAUSE OF PETITIONER'S FAILURE TO PAY OVERTIME WAGES
AS DIRECTED BY SEC. 7 OF THE ACT, RESPONDENT IS ENTITLED TO RECOVER
LIQUIDATED DAMAGES AS PROVIDED BY SEC. 16(B), AND THE JUDGMENT SHOULD
BE AFFIRMED. 
..END :











FITZGERALD CO. V. PEDERSEN, 324 U.S. 720 


NO. 462.  ARGUED FEBRUARY 5, 1945.  - DECIDED APRIL 9, 1945.  - 293 N.Y.
126, 56 N.E.2D 77, AFFIRMED IN PART. 


1.  AN EMPLOYEE IS NOT ENTITLED TO INTEREST ON SUMS RECOVERED IN AN
ACTION FOR OVERTIME COMPENSATION AND LIQUIDATED DAMAGES UNDER SEC.
16(B) OF THE FAIR LABOR STANDARDS ACT.  ARSENAL BLDG. CORP. V.
GREENBERG, ANTE, P. 697.  P. 724. 

2.  THE UNCONTESTED FACTS OF RECORD SHOW THAT THE EMPLOYEES IN
QUESTION WERE ENGAGED IN REPAIRING ABUTMENTS AND SUBSTRUCTURES OF
BRIDGES WHICH WERE PART OF THE LINE OF AN INTERSTATE RAILROAD,
SUSTAINING THE CONCLUSION THAT THEY WERE "ENGAGED IN (INTERSTATE)
COMMERCE" AND COVERED BY THE FAIR LABOR STANDARDS ACT.  P. 724. 

J.F. FITZGERALD CONSTRUCTION CO. V. PEDERSEN. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 323 U.S. 698, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE PLAINTIFFS IN A SUIT FOR OVERTIME COMPENSATION AND LIQUIDATED
DAMAGES UNDER THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE WRIT OF CERTIORARI IN THE INSTANT CASE RAISES TWO QUESTIONS FOR
CONSIDERATION:  THE FIRST, WHETHER AN EMPLOYEE WHO OBTAINS A JUDGMENT
FOR UNPAID OVERTIME WAGES AND LIQUIDATED DAMAGES UNDER SEC. 7(A)  FN1
AND SEC. 16(B)  FN2  OF THE FAIR LABOR STANDARDS ACT OF 1938 IS
ENTITLED TO INTEREST ON SUCH SUMS; THE SECOND, A NARROW QUESTION WITH
RESPECT TO THE INTERPRETATION OF A JUDGMENT OF THIS COURT, WHICH WAS
ENTERED IN ITS PER CURIAM OPINION ON A PRIOR WRIT OF CERTIORARI,
REVERSING A PRIOR STATE COURT JUDGMENT IN THIS SAME CASE. 

THE PROCEEDINGS LEADING TO THE FIRST WRIT BEGAN WHEN THE RESPONDENT,
PEDERSEN, AN EMPLOYEE OF THE PETITIONER, A CONSTRUCTION COMPANY,
INSTITUTED AN ACTION IN THE SUPREME COURT OF THE STATE OF NEW YORK, IN
BEHALF OF HIMSELF AND OTHER EMPLOYEES, TO RECOVER OVERTIME COMPENSATION
AND LIQUIDATED DAMAGES ALLEGED TO BE DUE BY VIRTUE OF SECS. 7 AND 16(B)
OF THE FAIR LABOR STANDARDS ACT.  THE ACTION WAS TRIED ON AN AGREED
STATEMENT OF FACTS WHICH STATED THAT THE NEW YORK CENTRAL RAILROAD
COMPANY OPERATED INTERSTATE TRAINS OVER FOUR BRIDGES LOCATED ON ITS
RIGHT OF WAY IN THE STATE OF NEW YORK; THAT ABUTMENTS SUPPORTING TWO
BRIDGES WERE DESTROYED AND THAT THE SUBSTRUCTURES OF THE TWO OTHER
BRIDGES WERE DAMAGED BY A FLOOD.  THE STIPULATION ALSO STATED: 

"THEREAFTER, THE RAILROAD COMPANY ENTERED INTO A CONTRACT WITH THE
DEFENDANT, AN INDEPENDENT CONTRACTOR ENGAGED IN GENERAL CONSTRUCTION
WORK, FOR THE CONSTRUCTION OF ENTIRELY NEW ABUTMENTS UNDER THE TWO
BRIDGES WHERE THE ABUTMENTS HAD BEEN WASHED OUT AND DESTROYED, AS
AFORESAID, AND FOR REPAIRING THE SUBSTRUCTURES OF THE OTHER TWO BRIDGES
WHICH HAD BEEN DAMAGED, AS AFORESAID. 

     .         .         .         .         . 

"DEFENDANT EMPLOYED PLAINTIFFS, TOGETHER WITH OTHER INDIVIDUALS, AS
ITS EMPLOYEES IN DOING WORK UNDER SAID CONTRACT AND PAID THEM AT THE
RATES PER HOUR, AS SHOWN ON SCHEDULE 'A' ANNEXED HERETO." 

AFTER MAKING FINDINGS OF FACT IN CONFORMITY WITH THE STIPULATION, THE
TRIAL COURT DISMISSED THE RESPONDENTS' COMPLAINT.  FN3  THE APPELLATE
DIVISION  FN4  AND COURT OF APPEALS  FN5  AFFIRMED THE LOWER COURT
DECISION ON THE THEORY THAT THE NATURE OF THE EMPLOYER'S GENERAL
BUSINESS ACTIVITY - NOT THE ACTIVITIES OF EMPLOYEES ON A PARTICULAR JOB
- DETERMINED WHETHER AN EMPLOYEE WAS "ENGAGED IN (INTERSTATE) COMMERCE"
WITHIN THE MEANING OF SEC. 7(A) OF THE ACT.  SINCE THE PETITIONER, AN
INDEPENDENT CONTRACTOR NOT ITSELF ENGAGED IN INTERSTATE COMMERCE, WAS
EMPLOYED BY THE RAILROAD TO PERFORM WORK LOCAL IN CHARACTER, IT WAS
FELT PETITIONER'S EMPLOYEES WERE NOT SUBJECT TO THE ACT.  ON PETITION
FOR CERTIORARI, THIS COURT REVERSED  FN6  THE JUDGMENT OF THE STATE
COURTS DISMISSING THE COMPLAINT, ON THE AUTHORITY OF OVERSTREET V.
NORTH SHORE CORP., 318 U.S. 125, IN WHICH THE FAIR LABOR STANDARDS ACT
WAS HELD TO APPLY TO EMPLOYEES ENGAGED IN THE ACTUAL REPAIR OF A
FACILITY OF INTERSTATE COMMERCE.  ON PETITION FOR REHEARING BY THE
PETITIONER IN THE INSTANT CASE, OUR JUDGMENT WAS AMENDED BY ADDING: 

"AND WITHOUT PREJUDICE TO A DETERMINATION OF THE NATURE OF THE
EMPLOYMENT OF ANY MEMBERS OF THE CLASS ON WHOSE BEHALF THIS SUIT HAS
BEEN BROUGHT."  318 U.S. 742. 

THIS LEFT OPEN FOR TRIAL THE QUESTION OF WHETHER EACH MEMBER OF THE
CLASS WAS ENGAGED IN INTERSTATE COMMERCE AS ALLEGED IN THE PETITION. 

AFTER REMAND TO THE STATE COURTS, THE PETITIONER MOVED IN THE TRIAL
COURT TO DISMISS THE COMPLAINT ON THE RECORD OF THE PRIOR PROCEEDINGS
APPARENTLY ON THE THEORY THAT THE AGREED STATEMENT OF FACTS IN THE
PRIOR PROCEEDINGS WERE INSUFFICIENT TO PROVE THAT THE RESPONDENTS,
EMPLOYEES, WERE "ENGAGED IN (INTERSTATE) COMMERCE."  PETITIONER DID NOT
ATTEMPT TO INTRODUCE ANY EVIDENCE REBUTTING ANY INFERENCE TO THE
CONTRARY THAT MIGHT BE DRAWN FROM THE STIPULATION OF FACTS IN THE
RECORD.  RESPONDENTS THEREUPON MOVED FOR SUMMARY JUDGMENT UNDER RULE
113 OF THE NEW YORK RULES OF CIVIL PRACTICE.  THE LOWER COURT ENTERED
JUDGMENT FOR THE RESPONDENTS, EMPLOYEES, FOR STATUTORY WAGES AND
LIQUIDATED DAMAGES, WITH INTEREST ON SUCH SUMS FROM APRIL 1, 1939.  FN7
THE APPELLATE DIVISION  FN8  AND COURT OF APPEALS AFFIRMED THIS
DECISION.  FN9  BECAUSE THE ALLOWANCE OF INTEREST BY THE COURT OF
APPEALS RAISED A FEDERAL QUESTION OF SUBSTANCE NOT HERETOFORE
DETERMINED BY THIS COURT, AND IN ORDER TO CLARIFY DOUBTS AS TO THE
MEANING OF OUR PREVIOUS JUDGMENT IN THIS CASE, WE GRANTED CERTIORARI. 
FN10  JURISDICTION OF THIS COURT RESTS ON SEC. 237(B) OF THE JUDICIAL
CODE. 

IN ARSENAL BUILDING CORP. V. GREENBERG, NO. 421, ANTE, P. 697, WE
HELD THAT AN EMPLOYEE WAS NOT ENTITLED TO INTEREST ON SUMS RECOVERED IN
AN ACTION BROUGHT UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT. 
THIS QUESTION IS DISCUSSED IN THAT OPINION AND FOR THE REASONS SET
FORTH THEREIN, WE HOLD THAT THE NEW YORK COURT OF APPEALS ERRED IN
ALLOWING INTEREST ON THE SUMS RECOVERED BY THE RESPONDENTS IN THE
INSTANT CASE. 

PETITIONER CONTENDS THAT THE STATE COURTS ERRED IN SUSTAINING A
JUDGMENT FOR RESPONDENTS.  IT IS ARGUED THAT THE LATTER FAILED TO
SATISFY THE BURDEN OF PROOF THAT THE PARTICULAR ACTIVITIES OF THE
RESPONDENTS CONSTITUTED ENGAGING "IN (INTERSTATE) COMMERCE."  WE ARE OF
A CONTRARY OPINION.  THE AGREED STATEMENT OF FACTS, WHICH WAS PART OF
THE RECORD BOTH FOR PURPOSES OF PETITIONER'S MOTION TO DISMISS AND
RESPONDENTS' MOTION FOR SUMMARY JUDGMENT, CONSTITUTES SUFFICIENT
EVIDENCE TO SUPPORT THE STATE COURTS' RULING IN THIS MATTER.  FN11  THE
AGREED STATEMENT OF FACTS STATES THAT THE PETITIONER ENTERED INTO A
CONTRACT WITH THE RAILROAD "FOR THE CONSTRUCTION OF ENTIRELY NEW
ABUTMENTS UNDER THE TWO BRIDGES  ...  AND FOR REPAIRING THE
SUBSTRUCTURES OF THE OTHER TWO BRIDGES," ALL FOUR OF THESE BRIDGES
BEING PART OF THE RAILROAD'S INTERSTATE LINE.  IT WAS ALSO STIPULATED
THAT THE RESPONDENTS WERE "DOING WORK UNDER SAID CONTRACT."  IT IS
CLEAR THAT EMPLOYEES WHO ACTUALLY REPAIR ABUTMENTS OR SUBSTRUCTURES OF
BRIDGES ON WHICH ARE LAID TRACKS USED IN INTERSTATE TRANSPORTATION ARE
"ENGAGED IN (INTERSTATE) COMMERCE."  OVERSTREET V. NORTH SHORE CORP.,
318 U.S. 125, 130; MCLEOD V. THRELKELD, 319 U.S. 491, 494.  THE
STIPULATION OF FACTS IN THIS CASE RECITES SPECIFICALLY AND PRECISELY
THAT THE CONTRACT WAS FOR SUCH WORK AND ALSO THAT THE RESPONDENTS WERE
ENGAGED IN DOING WORK UNDER SAID "CONTRACT."  THE STIPULATION OF FACTS
WOULD NOT SEEM TO EMBRACE ACTIVITIES NOT ESSENTIAL AND A PART OF THE
MAIN WORK OF REPAIR.  THIS INTERPRETATION OF THE STIPULATION ACCORDS
WITH THAT ADOPTED BY THE STATE TRIAL COURT.  FN12  IN AMENDING OUR
JUDGMENT ON REHEARING  FN13  WHEN THIS CASE WAS PREVIOUSLY BEFORE US ON
WRIT OF CERTIORARI, THE WAY WAS OPENED TO PETITIONER TO CONTEST THE
ISSUE OF WHETHER EACH RESPONDENT WAS HIMSELF ACTUALLY ENGAGED IN
INTERSTATE COMMERCE.  A DOUBT HAD ARISEN AS TO WHETHER THIS COULD BE
DONE BECAUSE OUR JUDGMENT OF REVERSAL WAS BASED EXPLICITLY ON THE
OVERSTREET CASE, AND IN THAT DECISION WE CONCLUSIVELY DETERMINED THAT
THE PARTICULAR EMPLOYEES THERE INVOLVED WERE COVERED BY THE ACT.  ON
THE REMAND TO THE STATE COURTS, PETITIONER DID NOT CONTEST RESPONDENTS'
CLAIM ON THIS ISSUE ALTHOUGH IT APPEARS IT COULD HAVE DONE SO WHEN THE
RESPONDENTS MOVED FOR SUMMARY JUDGMENT.  FN14  SINCE THE UNCONTESTED
FACTS IN THE RECORD ARE TO THE EFFECT THAT THE RESPONDENTS WERE
ACTUALLY ENGAGED IN REPAIRING THE ABUTMENTS AND SUBSTRUCTURE, THE
JUDGMENT OF THE STATE COURT MUST BE SUSTAINED IN THIS RESPECT. 

THE JUDGMENT OF THE STATE COURT IS AFFIRMED EXCEPT IN SO FAR AS IT
PROVIDES FOR RECOVERY OF INTEREST ON THE SUMS ADJUDGED TO BE DUE
RESPONDENTS UNDER THE ACT; IN THIS LATTER RESPECT THE JUDGMENT IS
REVERSED. 

FN1  SECTION 7(A), 52 STAT. 1063, PROVIDES: 

"NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION,
EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE - 

(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION, 

(2)  FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND
YEAR FROM SUCH DATE, OR 

(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED
AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT
WHICH HE IS EMPLOYED." 

FN2  SECTION 16(B), 52 STAT. 1069, PROVIDES: 

"ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 6 OR SECTION 7
OF THIS ACT SHALL BE LIABLE TO THE EMPLOYEE OR EMPLOYEES AFFECTED IN
THE AMOUNT OF THEIR UNPAID MINIMUM WAGES, OR THEIR UNPAID OVERTIME
COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL EQUAL AMOUNT AS
LIQUIDATED DAMAGES.  ACTION TO RECOVER SUCH LIABILITY MAY BE MAINTAINED
IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE OR MORE EMPLOYEES FOR
AND IN BEHALF OF HIMSELF OR THEMSELVES AND OTHER EMPLOYEES SIMILARLY
SITUATED, OR SUCH EMPLOYEE OR EMPLOYEES MAY DESIGNATE AN AGENT OR
REPRESENTATIVE TO MAINTAIN SUCH ACTION FOR AND IN BEHALF OF ALL
EMPLOYEES SIMILARLY SITUATED.  THE COURT IN SUCH ACTION SHALL, IN
ADDITION TO ANY JUDGMENT AWARDED TO THE PLAINTIFF OR PLAINTIFFS, ALLOW
A REASONABLE ATTORNEY'S FEE TO BE PAID BY THE DEFENDANT, AND COSTS OF
THE ACTION." 

FN3  PEDERSEN V. FITZGERALD CONSTRUCTION CO., 173 MISC. 188, 18
N.Y.S.2D 920. 

FN4  ID., 262 APP. DIV. 665, 30 N.Y.S.2D 989. 

FN5  ID., 288 N.Y. 687, 43 N.E.2D 83, AFFIRMING WITHOUT OPINION. 

FN6  ID., 318 U.S. 740. 

FN7  OPINION UNREPORTED. 

FN8  PEDERSEN V. FITZGERALD CONSTRUCTION CO., 266 APP. DIV. 1032, 44
N.Y.S.2D 595. 

FN9  ID., 29 N.Y. 126, 56 N.E.2D 77. 

FN10  323 U.S. 698. 

FN11  SEE SUPRA, P. 722. 

FN12  THE NEW YORK TRIAL COURT STATED IN ITS OPINION (UNREPORTED): 

"THE FAIR IMPORT OF THESE CONCEDED FACTS IS THAT DEFENDANT WAS
ENGAGED IN CERTAIN WORK, AND THAT PLAINTIFF AND HIS ASSOCIATES WERE ITS
EMPLOYEES, NOT GENERALLY, BUT IN DOING THIS PARTICULAR WORK ....  BUT
IN ANY EVENT THE CONCEDED FACTS, IN MY JUDGMENT, EMBRACE NO ACTIVITIES
NOT ESSENTIAL TO THE MAIN WORK OF REPAIR (PEDERSEN V. DELAWARE, L. &
W.R. CO., 229 U.S. 146).  SUCH I THINK, WAS THE FAIR IMPORT OF THE
FACTS AS CONTEMPLATED BY THE PARTIES WHEN THE AGREED STATEMENT WAS MADE
...." 

FN13  318 U.S. 742. 

FN14 THE TRIAL COURT STATED IN ITS OPINION (UNREPORTED): 

"IT WAS NO MORE A DIRECTION TO THE PLAINTIFF THAN IT WAS A PERMISSION
TO THE DEFENDANT TO REOPEN THE MATTER, IF EITHER SO DESIRED, AND COULD
SO DO UNDER OUR PRACTICE, FOR THE PURPOSE OF GETTING FURTHER PROOF AS
TO THE PRECISE ACTIVITIES OF PLAINTIFF AND HIS ASSOCIATES." 
..END :






















HARTFORD-EMPIRE CO. V. U.S., 324 U.S. 570 


DECIDED APRIL 2, 1945. 


1.  UPON REVIEW OF A DECREE OF THE DISTRICT COURT IN A SUIT BROUGHT BY
THE UNITED STATES FOR VIOLATION OF THE SHERMAN ACT, THIS COURT, THOUGH
IT AFFIRMS THE DISTRICT COURT'S FINDINGS AS TO VIOLATION OF THE ACT,
MAY MODIFY PROVISIONS OF THE DECREE.  P. 571. 

2.  THE OPINION HERETOFORE RENDERED BY THIS COURT IN THESE CASES
(HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386) IS HERE ADDED TO
AND CLARIFIED IN SEVERAL PARTICULARS.  P. 571. 

HARTFORD-EMPIRE CO. ET AL. V. UNITED STATES. 

NO. 2.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF OHIO* . 

UPON PETITION BY THE UNITED STATES FOR CLARIFICATION OR
RECONSIDERATION OF HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386. 

*TOGETHER WITH NO. 3, CORNING GLASS WORKS ET AL. V. UNITED STATES;
NO. 4, OWENS-ILLINOIS GLASS CO. ET AL. V. UNITED STATES; NO. 5, HAZEL
ATLAS GLASS CO. ET AL. V. UNITED STATES; NO. 6, THATCHER MANUFACTURING
CO. ET AL. V. UNITED STATES; AND NO. 7, LYNCH CORPORATION ET AL. V.
UNITED STATES, ALSO ON APPEALS FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF OHIO. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

SUBSEQUENT TO THE ANNOUNCEMENT OF THE DECISION OF THE COURT IN THE
ABOVE CASES, THE UNITED STATES FILED A PETITION FOR CLARIFICATION OR
RECONSIDERATION. 

WE HAVE NO OCCASION TO RECONSIDER THE OPINION AS RESPECTS THE
NECESSITY FOR MODIFICATION OF THE DECREE ENTERED BY THE DISTRICT
COURT.  IN THE MANY CASES WHICH HAVE COME HERE FOR REVIEW OF DECREES IN
SUITS BROUGHT BY THE GOVERNMENT FOR VIOLATION OF THE SHERMAN LAW, IT
HAS NEVER BEEN SUGGESTED THAT THIS COURT MUST ACCEPT THE DECREE
FASHIONED BY THE TRIAL COURT, IF WE AFFIRM THAT COURT'S FINDINGS AS TO
VIOLATION OF THE STATUTE, AND CANNOT MODIFY THE TERMS OF RELIEF AS
DRAFTED BY THE COURT BELOW.  THE PRACTICE HAS BEEN THE CONTRARY.  FN1
THIS IS NOT ONLY IN CONFORMITY TO THE UNQUESTIONED POWER OF AN
APPELLATE COURT IN AN EQUITY CAUSE, BUT BECAUSE IN SUITS UNDER THE
SHERMAN ACT, IT IS UNTHINKABLE THAT CONGRESS HAS ENTRUSTED THE
ENFORCEMENT OF A STATUTE OF SUCH FAR-REACHING IMPORTANCE TO THE
JUDGMENT OF A SINGLE JUDGE, WITHOUT REVIEW OF THE RELIEF GRANTED OR
DENIED BY HIM. 

IN ORDER THAT THERE MAY BE NO MISUNDERSTANDING WE THINK IT WELL TO
ADD TO THE OPINION IN THE FOLLOWING PARTICULARS. 

1.  THE OPINION STATES (P. 411): 

"THE ROYALTIES PAID TO THE RECEIVER BY HARTFORD'S LESSEES MAY, UNLESS
THE DISTRICT COURT FINDS THAT HARTFORD HAS, SINCE THE ENTRY OF THE
RECEIVERSHIP DECREE, VIOLATED THE ANTI-TRUST LAWS, OR ACTED CONTRARY TO
THE TERMS OF THE FINAL DECREE AS MODIFIED BY THIS OPINION, BE PAID OVER
TO HARTFORD.  IN ANY EVENT HARTFORD SHOULD RECEIVE OUT OF THESE
ROYALTIES COMPENSATION ON A QUANTUM MERUIT BASIS, FOR SERVICES RENDERED
TO LESSEES." 

THE GOVERNMENT POINTS OUT THAT HAD IT NOT BEEN FOR THE RECEIVERSHIP,
MANY OF THE LICENSEES (MOST OF WHOM WERE NOT PARTIES TO THE PROCEEDING)
WOULD HAVE PAID NO FURTHER ROYALTIES TO HARTFORD, AND THAT THEY MAY BE
ABLE TO JUSTIFY REFUSAL OF PAYMENT OF ANY ROYALTIES FROM THE DATE OF
THE RECEIVERSHIP, AND OUGHT NOT TO BE PUT INTO THE POSITION OF
RECOVERING ROYALTIES PAID TO THE RECEIVER, FROM HARTFORD. 

IT HAS BEEN OPEN TO EACH OF THESE LICENSEES AT ANY TIME TO REPUDIATE
ITS LEASE AND LICENSE, TO RETURN THE LEASED MACHINERY, TO REFUSE TO PAY
FURTHER RENTALS OR ROYALTIES, AND TO DEFEND ANY SUIT ARISING OUT OF
SUCH REFUSAL TO PAY, EITHER FOR INFRINGEMENT OR OTHERWISE.  IT MAY BE
THAT LICENSEES HAVE NOT TAKEN THIS COURSE BECAUSE THEY RELIED ON THE
DECREE AS ENTERED BY THE DISTRICT COURT.  IN SUCH RELIANCE THEY MAY
HAVE EXPECTED THAT THE MONEYS PAID THE RECEIVER WOULD BE REPAID TO
THEM. 

IN VIEW OF THE MODIFICATIONS REQUIRED BY THE OPINION OF THIS COURT,
SUCH LICENSEES MUST PAY REASONABLE RENTAL AND SERVICE CHARGES ON A
QUANTUM MERUIT BASIS (LEAVING OUT OF CONSIDERATION ANY AMOUNT OTHERWISE
PAYABLE FOR THE PRIVILEGE OF PRACTICING THE PATENTED INVENTIONS
INVOLVED) IN RESPECT OF THE MACHINES USED IN THE INTERIM.  UNLESS
HARTFORD, SINCE THE ENTRY OF THE DECREE BY THE DISTRICT COURT, HAS BEEN
GUILTY OF SOME ADDED VIOLATION OF THE ANTI-TRUST LAWS, LICENSEES MUST
ELECT (A) TO REMAIN LICENSEES ON SUCH REASONABLE RENTAL AND ROYALTY
BASIS FOR THE FUTURE AS THE DISTRICT COURT MAY FIX, OR (B) REPUDIATE
THE LEASES AND LITIGATE THEIR RIGHTS AS AGAINST HARTFORD TO RETAIN ANY
PORTION OF THE RENTS AND ROYALTIES PAID.  DEPENDING UPON SUCH ELECTION
OF EACH OF THE LESSEES, THE DISTRICT COURT MAY, ON THE APPLICATION OF
EACH, MAKE AN APPROPRIATE ORDER FOR THE DISPOSITION OF THE FUND IN THE
LIGHT OF THE LICENSEES' ELECTION AND THE PRINCIPLES STATED IN THE
OPINION OF THIS COURT. 

2.  THE GOVERNMENT EXPRESSES APPREHENSION LEST THE STATEMENT IN THE
OPINION THAT THE DECREE OF THE DISTRICT COURT IS VACATED AND THE CAUSE
REMANDED FOR FURTHER PROCEEDINGS WOULD RESULT IN THE EXISTENCE OF NO
JUDGMENT IN EFFECT IN THE INTERVAL BETWEEN THE ISSUE OF THIS COURT'S
MANDATE AND THE FORMULATION OF A NEW DECREE BY THE DISTRICT COURT.  WE
NEED ONLY SAY THAT THE DECREE FROM WHICH THE APPEAL WAS TAKEN STANDS
UNTIL FURTHER ORDER OR ORDERS ARE ENTERED BY THE DISTRICT COURT
PURSUANT TO MANDATE. 

3.  IN VARIOUS PORTIONS OF THE OPINION DIRECTION IS GIVEN FOR
PROVISIONS IN THE DECREE RELATING TO "FEEDERS, FORMERS, STACKERS AND
LEHRS, AND PATENTS COVERING THESE OR IMPROVEMENTS OF THEM, OR METHODS
OR PROCESSES USED IN CONNECTION WITH THEM  ..."  IT IS SAID THAT THIS
PHRASEOLOGY MAY OMIT THE OWENS AND HARTFORD SUCTION MACHINE PATENTS,
INCLUDING O'NEILL SUCTION PATENTS ACQUIRED BY OWENS.  THE LANGUAGE USED
WAS INTENDED TO COVER SUCH SUCTION MACHINES. 

4. THE OPINION STATES (P. 419): 

"HARTFORD AND THE OTHER CORPORATE DEFENDANTS MENTIONED IN PARAGRAPH
24 SHOULD BE REQUIRED TO LEASE OR LICENSE GLASS MAKING MACHINERY OF THE
CLASSES EACH NOW MANUFACTURES TO ANY WHO MAY DESIRE TO TAKE LICENSES
..." 

IT IS SUGGESTED THAT THIS LANGUAGE MIGHT PERMIT HARTFORD TO CANCEL ALL
ITS LEASES AND RETAKE THE LEASED MACHINERY. 

THAT WAS NOT INTENDED BY THE LANGUAGE USED.  IT WAS INTENDED THAT IF
PERSONS DESIRED TO TAKE A LICENSE INSTEAD OF TAKING A LEASE, AND
HARTFORD WERE WILLING TO LICENSE WITHOUT LEASING MACHINERY, THIS MIGHT
BE DONE ON REASONABLE TERMS.  HARTFORD SHOULD OF COURSE BE COMPELLED TO
LEASE MACHINERY COVERED BY ITS PATENTS ACCORDING TO ITS PAST PRACTICE,
ON REASONABLE TERMS, AND SHOULD BE REQUIRED TO LICENSE THE PATENTS
INVOLVED FOR MANUFACTURE AND USE OR SALE, ALSO ON REASONABLE TERMS. 

5.  THE GOVERNMENT FINDS SOME DUBIETY IN THE PHRASE, RELATING TO
REVISION OF PARAGRAPH 24(A) OF THE DISTRICT COURT'S DECREE, VIZ.,
"SHOULD BE REQUIRED TO LEASE OR LICENSE GLASS MAKING MACHINERY OF THE
CLASSES EACH NOW MANUFACTURES TO ANY WHO MAY DESIRE TO TAKE LICENSES." 
THE LANGUAGE IS AMENDED TO ADD AFTER THE WORD "MANUFACTURES" THE WORDS
"OR LEASES." 

6.  THE GOVERNMENT SUGGESTS THAT THE OPINION SHOULD BE CLARIFIED TO
PERMIT INDEPENDENT MACHINERY MANUFACTURERS TO OBTAIN LICENSES.  THE
OPINION IS SO MODIFIED, AND THE CORPORATE DEFENDANTS ARE REQUIRED TO
LICENSE ALL APPLICANTS TO MAKE, USE, OR SELL THE PATENTED MACHINES AT
REASONABLE ROYALTIES. 

7.  THE GOVERNMENT APPREHENDS THAT THE USE OF THE WORD "STANDARD"
WITH RESPECT TO THE ROYALTIES TO BE CHARGED BY HARTFORD MAY BE TAKEN AS
A DETERMINATION THAT PRESENT ROYALTIES ARE REASONABLE.  TO AVOID ANY
MISUNDERSTANDING WE SUBSTITUTE FOR THE PHRASE "STANDARD ROYALTIES" THE
PHRASE "UNIFORM REASONABLE ROYALTIES."  SUCH UNIFORM REASONABLE
ROYALTIES MAY INCLUDE RENTAL OF THE MACHINES, THE SERVICING OF THE
MACHINES, OR THE USE OF THE PATENTS FOR THE PRODUCTION OF GLASSWARE ON
THE LEASED MACHINES, THE LICENSEE TO HAVE THE OPTION AT HIS ELECTION TO
TAKE AND PAY FOR ANY OR ALL OF THESE PRIVILEGES.  HARTFORD SHOULD ALSO
BE REQUIRED TO LICENSE THE PATENTS FOR MANUFACTURE FOR USE OR SALE, BUT
WITH THE LIMITATION THAT SIMILAR LICENSES AT UNIFORM REASONABLE
ROYALTIES MUST BE AVAILABLE TO ALL WHO DESIRE THEM. 

8.  THE GOVERNMENT DESIRES THAT POWER BE RESERVED TO THE DISTRICT
COURT TO DISSOLVE HARTFORD. 

THE DISTRICT COURT, IN ITS OPINION, CONCLUDED, AND WE THINK PROPERLY,
THAT IN THE SITUATION PRESENTED A DISSOLUTION OF HARTFORD AND A
DISTRIBUTION OF ITS PATENTS INTO VARIOUS HANDS WOULD CREATE A WORSE
SITUATION THAN THAT ENVISAGED BY THE DISTRICT COURT'S DECREE.  WE THINK
THIS IS EQUALLY TRUE OF THE STATUS TO BE ESTABLISHED BY THE
MODIFICATION OF THE DECREE REQUIRED BY OUR OPINION.  THE OPINION DID
NOT DISTURB PARAGRAPH 57(A) OF THE DECREE ENTERED BELOW.  IF IT BE
FOUND THAT A DECREE ENTERED IN ACCORDANCE WITH THIS COURT'S OPINION HAS
FAILED TO BRING ABOUT A CORRECTION OF THE VIOLATIONS OF THE ANTI-TRUST
LAW WHICH ARE THE BASIS OF THE RELIEF GRANTED, IT WILL OF COURSE BE
OPEN TO THE GOVERNMENT, ON A PROPER SHOWING, TO APPLY FOR FURTHER OR
OTHER RELIEF. 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

THE NECESSITY FOR A SECOND OPINION, IN EFFECT A FURTHER DETAILED
WRITING OF THE DECREE IN THIS CASE, GIVES ADDED POINT TO THE VIEW
EXPRESSED IN AN EARLIER DISSENT, 323 U.S. 438, THAT THIS COURT SHOULD
NOT UNDERTAKE THE LONG DISTANCE WRITING OF THE DETAILED PROVISIONS FOR
RELIEF, AMOUNTING TO A FRAMING OF THE DECREE, IN SHERMAN ACT
PROCEEDINGS.  I DO NOT SAY THAT CONGRESS HAS ENTRUSTED ENFORCEMENT OF
THE SHERMAN ACT "TO THE JUDGMENT OF A SINGLE JUDGE."  FN1  I DO SAY
THAT HIS JUDGMENT UPON THE FACTS OF THIS CASE IS NECESSARILY BETTER
INFORMED THAN THAT OF APPELLATE JUDGES, HOWEVER CONSCIENTIOUS OR
INDUSTRIOUS; AND ACCORDINGLY HIS FINDINGS, WHEN THEY ARE SUSTAINED
WITHOUT QUALIFICATION UPON THE CHARACTER AND EXTENT OF THE VIOLATION,
ARE ENTITLED TO SIMILAR WEIGHT UPON THE CHARACTER OF THE RELIEF
REQUIRED, UNLESS THEY EXCEED THE LIMITS IMPOSED BY LAW OR AMOUNT TO A
CLEAR ABUSE OF DISCRETION.  MANY OF THE DETAILED REVISIONS MADE HERE IN
THE DECREE CANNOT QUALIFY IN EITHER CATEGORY.  A COURT WHICH SO
ACCURATELY FOUND THE FACTS AND MADE CONCLUSIONS CONCERNING THE
VIOLATION HARDLY CAN HAVE ERRED SO CONSISTENTLY OR SO GROSSLY AS THIS
COURT'S ACTION NECESSARILY IMPLIES WAS THE CASE. 

FURTHER ELABORATION OF THIS VIEW IS NOT NOW REQUIRED, EXCEPT TO SAY
THAT IF THE COURT IS THUS TO TAKE OVER THE BUSINESS OF THE TRIAL
COURTS, ACTUALLY IF NOT IN FORM COMMINGLING ITS APPELLATE WITH ORIGINAL
JURISDICTION, OF COURSE IT SHOULD SPARE NO PAINS TO MAKE ITS MANDATE
CLEAR OR TO CORRECT MINUTE ERRORS INEVITABLE IN PERFORMING THE TASK
WITHOUT HAVING HEARD THE EVIDENCE, HOWEVER GREAT THE CARE GIVEN TO IT. 

THIS REMINDER ALONE PERHAPS WOULD NOT JUSTIFY FURTHER OBJECTION BY
DISSENTING JUSTICES.  IT CANNOT BE CAPTIOUS, HOWEVER, IF THEY FIND
THEMSELVES UNABLE TO ACCEPT, THROUGH ACQUIESCENCE BY SILENCE, STATED
VIEWS OF THE RECORD AT VARIANCE WITH THEIR OWN.  IT IS STATED IN THE
REVISED OPINION THAT "THE DISTRICT COURT, IN ITS OPINION, CONCLUDED,
AND WE THINK PROPERLY, THAT IN THE SITUATION PRESENTED A DISSOLUTION OF
HARTFORD AND A DISTRIBUTION OF ITS PATENTS INTO VARIOUS HANDS WOULD
CREATE A WORSE SITUATION THAN THAT ENVISAGED BY THE DISTRICT COURT'S
DECREE."  I AM UNABLE TO LOCATE SUCH A FINDING OR CONCLUSION IN THE
RECORD. 

A FORMER DISSENTING OPINION POINTED OUT (323 U.S. 445) THAT THE
DISTRICT COURT DID NOT DENY THE GOVERNMENT'S PRAYER FOR DISSOLUTION. 
IT ONLY DEFERRED ACTION ON THAT REQUEST AND THIS WAS EXPRESSLY UPON THE
CONDITION THAT HARTFORD MEET THE CONDITIONS OF ITS DECREE, INCLUDING
COMPULSORY LICENSING, ROYALTY FREE, AND TRANSFER OF ITS MANAGEMENT TO
COURT OFFICERS, NOT ONLY PENDING APPEAL BUT UNTIL THE COURT SHOULD
FIND, AFTER A REASONABLE TIME, THAT COMPETITION HAD BEEN RESTORED TO
THE INDUSTRY.  THE COURT EXPRESSLY STATED:  "IF AFTER THE EXPIRATION OF
A REASONABLE TIME, IT APPEARS TO THE COURT THAT THE STEPS HE IS NOW
TAKING ARE INSUFFICIENT TO RESTORE A FREE AND COMPETITIVE STATUS TO THE
INDUSTRY, THE RECEIVERS SHALL BE ORDERED TO SUBMIT A PLAN OR PLANS FOR
THE DISSOLUTION OF HARTFORD."  THE COURT FURTHER SAID, "DISSOLUTION IS
NOT RESORTED TO BY THE COURT UNLESS HARTFORD WILLS IT SO.  THE MEASURES
HEREIN ADOPTED BY THE COURT ARE DEEMED NECESSARY TO INSTALL COMPETITION
TO THE INDUSTRY  ..."  IT PREVIOUSLY HAD STATED THAT "NO HALF-WAY
MEASURES WILL SUFFICE," THAT THE GOVERNMENT HAD REQUESTED DISSOLUTION,
BUT THAT "THE COURT, HOWEVER, IS FIRST GOING TO MAKE AN ATTEMPT TO
AVOID THAT, IF IT IS POSSIBLE TO DO SO AND AT THE SAME TIME RESTORE
COMPETITION TO THE INDUSTRY.  IF THIS CANNOT BE WORKED OUT TO THE
SATISFACTION OF THE COURT, DISSOLUTION WILL BE ORDERED."  46 F.SUPP. 
621, 622, 620.  FN2 

THE DISTRICT COURT HAS MADE NO FINDING THAT COMPETITION HAS BEEN
RESTORED TO THE INDUSTRY.  THIS COURT DOES NOT PURPORT TO MAKE ONE, AND
HAS NO POWER TO MAKE ONE, IN THE ABSENCE OF EVIDENCE TO SHOW THAT
COMPETITION HAS BEEN RESTORED.  NO SUCH EVIDENCE HAS BEEN TAKEN.  YET,
AS I READ ITS TERMS, THIS COURT'S DECREE, INCLUDING THE PRESENT
REVISIONS, FORBIDS THE DISTRICT COURT TO MAKE ONE UPON REMAND OF THIS
CAUSE. 

CLEARLY COMPETITION HAD NOT BEEN RESTORED TO THE INDUSTRY WHEN THE
DISTRICT COURT'S DECREE WAS ENTERED IN AUGUST, 1942.  THE ONLY OCCASION
FOR ITS DECREE THEN, OR FOR CONTINUANCE NOW OF THE RELIEF AS MODIFIED,
WAS AND IS TO BRING ABOUT SUCH A RESTORATION.  THIS COURT'S ORIGINAL
DECREE DECLARED, "THE RECEIVERSHIP SHOULD BE WOUND UP AND THE BUSINESS
RETURNED TO HARTFORD."  323 U.S. 411.  THAT DIRECTION WAS MADE UPON THE
ASSUMPTION THAT THE DISTRICT COURT HAD CONCLUDED "THAT A CONTINUANCE OF
CERTAIN OF HARTFORD'S ACTIVITIES WOULD BE OF ADVANTAGE TO THE GLASS
INDUSTRY AND DENIED, FOR THE TIME BEING, THAT FORM OF RELIEF," I.E.,
DISSOLUTION.  323 U.S. 408.  THAT ASSUMPTION HAS NOW BEEN STATED IN THE
PRESENT OPINION AS ONE THAT THE DISTRICT COURT "CONCLUDED, AND WE THINK
PROPERLY, THAT IN THE SITUATION PRESENTED A DISSOLUTION OF HARTFORD AND
A DISTRIBUTION OF ITS PATENTS INTO VARIOUS HANDS WOULD CREATE A WORSE
SITUATION THAN THAT ENVISAGED BY THE DISTRICT COURT'S DECREE."  THE
FURTHER CONCLUSION IS EXPRESSED THAT "THIS IS EQUALLY TRUE OF THE
STATUS TO BE ESTABLISHED BY THE MODIFICATION OF THE DECREE REQUIRED BY
OUR OPINION."  UNLESS THIS LANGUAGE IS AT ONCE A RULING THAT
DISSOLUTION WAS NOT JUSTIFIED AND WOULD NOT HAVE BEEN SUSTAINED, IF
ORDERED IN 1942, AND THAT IT SHOULD NOT NOW BE DECREED, I AM UNABLE TO
UNDERSTAND ITS MEANING.  THAT IT IS SO EFFECTIVE APPEARS FROM THE
FURTHER DIRECTION, "IF IT BE FOUND THAT A DECREE ENTERED IN ACCORDANCE
WITH THIS COURT'S OPINION HAS FAILED TO BRING ABOUT A CORRECTION OF THE
VIOLATIONS OF THE ANTI-TRUST LAW WHICH ARE THE BASIS OF THE RELIEF
GRANTED, IT WILL OF COURSE BE OPEN TO THE GOVERNMENT, ON A PROPER
SHOWING, TO APPLY FOR FURTHER OR OTHER RELIEF." 

IN MY JUDGMENT THIS EFFECTIVELY MODIFIES, IF IT DOES NOT NULLIFY,
PARAGRAPH 57A OF THE DISTRICT COURT'S DECREE IN SO FAR AS IT RESERVED
THE POWER TO ORDER DISSOLUTION OF HARTFORD, IF AFTER A REASONABLE TIME
COMPETITION SHOULD NOT BE RESTORED, NOTWITHSTANDING THE APPARENT
DISCLAIMER OF THIS EFFECT.  NO FINDING CAN NOW BE MADE, NOR CAN ONE BE
MADE FOR SOME TIME IN THE FUTURE, THAT "A DECREE ENTERED IN ACCORDANCE
WITH THIS COURT'S OPINION HAS FAILED TO BRING ABOUT A CORRECTION OF THE
VIOLATIONS," MUCH LESS THAT COMPETITION HAS BEEN RESTORED IN THE
INDUSTRY, FOR THE SIMPLE REASON THAT NO SUCH DECREE HAS BEEN ENTERED. 
IF ONLY SUCH A FINDING CAN SUSTAIN AN ORDER FOR DISSOLUTION, OBVIOUSLY
NO SUCH ORDER CAN BE MADE UPON THE REMAND OF THIS CASE, WHETHER OR NOT
THE DISTRICT COURT THEN MIGHT FIND, UPON CONCLUSIVE EVIDENCE, THAT
COMPETITION HAD NOT BEEN RESTORED, EVEN UNDER THE MORE STRINGENT TERMS
OF ITS DECREE.  ONLY AT SOME INDEFINITE FUTURE TIME COULD SUCH AN ORDER
BE ENTERED, BASED UPON EVIDENCE THAT THE MILDER TERMS OF THIS COURT'S
DECREE HAD FAILED TO RESTORE COMPETITION. 

IN MY OPINION, THEREFORE, THE DISTRICT COURT IS FORECLOSED FROM
FINDING THAT COMPETITION HAS NOT BEEN RESTORED, EVEN UNDER THE MORE
STRINGENT PROVISIONS OF ITS DECREE, DURING THE NEARLY THREE YEARS IT
HAS BEEN IN FORCE.  IF IN THAT TIME THOSE MEASURES HAVE NOT BEEN
EFFECTIVE TO RESTORE COMPETITION, AS THE COURT CLEARLY THOUGHT MIGHT
PROVE TO BE TRUE, THE GREATLY SOFTENED MEASURES OF THIS COURT'S DECREE
HARDLY CAN BE EXPECTED TO ACCOMPLISH THAT OBJECT.  YET IT EFFECTUALLY
FORBIDS THE DISTRICT COURT TO EXAMINE THE EFFECTS OF ITS DECREE UPON
THE RESTORATION OF COMPETITION, TO MAKE A PRESENT FINDING, IF THE
EVIDENCE SHOULD JUSTIFY IT, THAT COMPETITION HAS NOT BEEN, OR CANNOT
BE, RESTORED, AND TO DECREE DISSOLUTION ACCORDINGLY. 

IN EFFECT THIS COURT FINDS THE FACT FOR ITSELF, WITHOUT EVIDENCE AND,
IN MY OPINION, WITHOUT RIGHT.  THAT IS TRUE UNLESS THE PURPOSE IS TO
RULE, AS A MATTER OF LAW, THAT HARTFORD CANNOT NOW BE DISSOLVED AND IS
ENTITLED TO CONTINUE IN BUSINESS, THUS DOMINATING THE INDUSTRY, EVEN
THOUGH COMPETITION HAS NOT BEEN RESTORED.  THIS COMES NEAR, IF NOT
ENTIRELY, TO DESTROYING THE LONG-ESTABLISHED POWER TO ORDER
DISSOLUTION. 

I THINK ALSO THAT THE ROYALTIES COLLECTED AND IMPOUNDED BY THE COURT
FOR HARTFORD'S PROTECTION IN THE EVENT OF REVERSAL OF ITS JUDGMENT
SHOULD BE RETURNED TO THOSE FROM WHOM THEY WERE COLLECTED.  APART FROM
THE VIEW, PREVIOUSLY EXPRESSED, THAT THE DISTRICT COURT'S FINDING
SHOULD NOT BE DISTURBED TO THE EFFECT THAT FREE LICENSING WAS REQUIRED
TO RESTORE COMPETITION IF HARTFORD WERE TO CONTINUE IN BUSINESS AND IN
CONTROL OF ITS MORE THAN 600 PATENTS, THESE FUNDS WERE COLLECTED ONLY
BY REASON OF THE DISTRICT COURT'S ORDER REQUIRING THIS IN ORDER TO
PRESERVE THE STATUS QUO PENDING APPEAL.  NO ONE CAN TELL NOW WHETHER OR
NOT THE LICENSEES, BUT FOR THIS ORDER, WOULD HAVE ELECTED TO REFUSE TO
PAY THE ROYALTIES AND LITIGATE THEIR RIGHT TO DO SO.  THOSE FUNDS
SHOULD NOT BE RETURNED TO HARTFORD, TO BE RETAINED BY IT AS THE PRODUCT
OR CONSEQUENCE NOT ONLY OF ITS VIOLATION BUT ALSO OF THE COURT'S
ORDER. 

MOREOVER, UNDER THE TERMS OF THIS COURT'S REVISED DECREE, IF THE
LICENSEES WHO HAVE PAID IN THE ROYALTIES ELECT TO REMAIN LICENSEES, AND
PAY THE REASONABLE ROYALTIES REQUIRED "FOR THE FUTURE," IT IS NOT CLEAR
THAT PROVISION IS MADE FOR REPAYMENT TO THEM OF ANY PORTION OF THE
ROYALTIES COLLECTED WHICH MAY BE IN EXCESS OF THE REASONABLE ROYALTIES
THIS COURT'S DECREE REQUIRES BE PAID FOR THE FUTURE.  THE OPPOSITE
APPEARS TO BE THE COURSE DIRECTED.  THE REVISED OPINION REQUIRES THE
LICENSEES TO ELECT "TO REMAIN LICENSEES ON SUCH REASONABLE RENTAL AND
ROYALTY BASIS FOR THE FUTURE AS THE DISTRICT COURT MAY FIX" OR TO
REPUDIATE THE LEASES AND LITIGATE WITH HARTFORD THEIR RIGHTS "TO RETAIN
ANY PORTION OF THE RENTS AND ROYALTIES PAID."  UNDER THE TERMS OF THE
DISTRICT COURT'S DECREE, THE RECEIVERS HAVE COLLECTED RENTS AND
ROYALTIES "UNDER THE PRESENT CONTRACTS AND AGREEMENTS OF HARTFORD IN
ITS LICENSING AND LEASE SYSTEM."  HARTFORD HAS NO MORE RIGHT TO RETAIN
UNREASONABLE ROYALTIES COLLECTED WHILE THE DISTRICT COURT'S DECREE HAS
REMAINED OR CONTINUES TO BE IN EFFECT THAN IT HAS TO COLLECT SUCH
ROYALTIES FOR THE FUTURE. 

FN1  THERE CAN BE NO QUESTION OF THIS COURT'S POWER TO REVIEW AND
MODIFY TERMS OF RELIEF IN SHERMAN ACT SUITS, WHEN THEY EXCEED THE
LIMITS IMPOSED BY LAW OR AMOUNT TO AN ABUSE OF DISCRETION.  AS THE
COURT'S OPINION INDICATES, THIS POWER HAS BEEN FREQUENTLY EXERCISED,
MOST OFTEN IN THE CASES CITED TO STRENGTHEN RATHER THAN TO WEAKEN THE
REMEDY WHERE VIOLATION HAS BEEN FOUND, UNITED STATES V. AMERICAN
TOBACCO CO., 221 U.S. 106, 184; UNITED STATES V. UNION PACIFIC R. CO.,
226 U.S. 470; UNITED STATES V. SWIFT & CO., 286 U.S. 106; UNITED STATES
V. UNIVIS LENS CO., 316 U.S. 241; AND IN NO INSTANCE SUBSTANTIALLY TO
THE EXTENT OF REWRITING THE DETAILED PROVISIONS OF THE DECREE IN
EXTENSO, AS IS DONE IN THIS CASE; CF. SWIFT & CO. V. UNITED STATES, 196
U.S. 375, 396; STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; SUGAR
INSTITUTE V. UNITED STATES, 297 U.S. 553; UNITED STATES V. BAUSCH &
LOMB OPTICAL CO., 321 U.S. 707.  IN LOCAL 167 V. UNITED STATES, 291
U.S. 293, THE JUDGMENT AND DECREE WERE AFFIRMED WITHOUT CHANGE, THE
COURT OBSERVING, AT 299:  "THE UNITED STATES IS ENTITLED TO EFFECTIVE
RELIEF  ....  IN FRAMINING ITS (THE DECREE'S) PROVISIONS DOUBTS SHOULD
BE RESOLVED IN FAVOR OF THE GOVERNMENT AND AGAINST THE CONSPIRATORS." 

FN2  IT IS HARDLY NECESSARY TO POINT OUT SPECIFICALLY THE LARGE
DIFFERENCE BETWEEN A FINDING THAT COMPETITION HAS BEEN RESTORED TO THE
INDUSTRY AND ONE THAT "A DISSOLUTION OF HARTFORD AND A DISTRIBUTION OF
ITS PATENTS INTO VARIOUS HANDS WOULD CREATE A WORSE SITUATION THAN THAT
ENVISAGED BY THE DISTRICT COURT'S DECREE." 

MR. JUSTICE BLACK JOINS IN THIS OPINION. 
..END :
















COLORADO INTERSTATE CO. V. COMM'N, 324 U.S. 581 


ARGUED JANUARY 29, 30, 1945.  - DECIDED APRIL 2, 1945.  - 142 F.2D 943,
AFFIRMED. 


THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT ORDERED
REDUCTIONS IN PETITIONERS' INTERSTATE WHOLESALE RATES.  THOUGH SEPARATE
COMPANIES, PETITIONERS OPERATED THEIR PROPERTIES AS AN INTEGRATED
SYSTEM.  THEIR BUSINESS CONSISTED OF INTRASTATE SALES, DIRECT
INDUSTRIAL SALES, AND INTERSTATE WHOLESALES, OF WHICH ONLY INTERSTATE
WHOLESALES ARE SUBJECT TO REGULATION BY THE COMMISSION.  HELD: 

1.  IN DETERMINING THE AMOUNT OF THE REDUCTIONS IN THE INTERSTATE
WHOLESALE RATES, THE COMMISSION WAS NOT BOUND TO MAKE A SEPARATION OF
THE PROPERTIES USED IN THE REGULATED BUSINESS FROM THOSE IN THE
UNREGULATED, AND ITS FORMULA FOR ALLOCATION OF COSTS BETWEEN REGULABLE
AND NON-REGULABLE SALES DID NOT CONTRAVENE THE ACT.  P. 586. 

(A)  MINNESOTA RATE CASES, 230 U.S. 352, AND SMITH V. ILLINOIS BELL
TELEPHONE CO., 282 U.S. 133, DISTINGUISHED.  P. 589. 

(B)  UNDER THE ACT THE APPROPRIATENESS OF THE ALLOCATION FORMULA USED
BY THE COMMISSION IS A QUESTION OF FACT, NOT OF LAW.  P. 590. 

(C)  THE COMMISSION'S FORMULA DID NOT IGNORE OR FAIL TO GIVE FULL
EFFECT TO THE PRIORITY - RECOGNIZED IN THE CONTRACTS WITH INDUSTRIAL
USERS AND IN MUNICIPAL FRANCHISES - WHICH THE WHOLESALE GAS HAD OVER
DIRECT INDUSTRIAL SALES.  P. 590. 

(D)  THE COMMISSION'S TREATMENT OF THE TRANSMISSION LINE AS A UNIT -
THOUGH SOME LATERALS AND EQUIPMENT WERE USED EXCLUSIVELY FOR INTERSTATE
WHOLESALES, SOME EXCLUSIVELY FOR INTRASTATE OR DIRECT INDUSTRIAL SALES,
AND SOME IN COMMON IN VARYING DEGREES BY THE SEVERAL CLASSES OF
BUSINESS - WAS NOT UNFAIR.  P. 590. 

(E)  THE COMMISSION HAVING FOUND THAT BUT FOR THE DIRECT INDUSTRIAL
MARKET AT PUEBLO AND THE WHOLESALE MARKET AT DENVER THE PIPELINE WOULD
NOT HAVE BEEN BUILT, IT WAS FAIR TO DETERMINE TRANSMISSION COSTS FOR
THE PIPELINE AS A WHOLE AND NOT TO COMPUTE THEM ON A MILEAGE DEMAND
BASIS.  P. 591. 

(F)  CONSIDERATIONS OF FAIRNESS, NOT MERE MATHEMATICS, GOVERN
ALLOCATION OF COSTS.  P. 591. 

(G)  THE CONTENTION THAT CERTAIN INTRASTATE WHOLESALES ARE BURDENED
WITH TOO LARGE A SHARE OF TRANSMISSION COSTS IS REJECTED.  P. 591. 

(H)  THE COMMISSION'S INCLUSION IN THE TOTAL COST OF PETITIONERS'
SERVICE OF A 6 1/2% RETURN ON THE RATE BASE WAS NOT INAPPROPRIATE,
INASMUCH AS THE RATE REDUCTION ORDERED WAS BASED SOLELY ON THE EXCESS
OF REVENUES OVER COSTS (INCLUDING RETURN) DERIVED FROM THE REGULATED
BUSINESS.  P. 593. 

(I)  THE 6 1/2% RETURN ALLOWED BY THE COMMISSION ON THE RATE BASE
DOES NOT LIMIT THE EARNINGS OF THE WHOLE ENTERPRISE TO 6 1/2%, BUT
MERELY MEASURES THE EARNINGS ALLOWED FROM THE REGULATED BUSINESS.  P.
594. 

(J)  THE FINDINGS OF THE COMMISSION ON THE ALLOCATION OF COSTS,
THOUGH THEY LEAVE MUCH TO BE DESIRED, ARE NOT SO VAGUE AS TO MAKE THE
JUDICIAL REVIEW CONTEMPLATED BY THE ACT A PERFUNCTORY PROCESS, AND THE
CASE NEED NOT BE REMANDED FOR FURTHER FINDINGS.  P. 595. 

2.  INTERSTATE SALES OF GAS FOR RESALE, INCLUDING THAT SOLD FOR
RESALE FOR INDUSTRIAL USE, ARE SUBJECT TO RATE REGULATION UNDER THE
ACT.  P. 595. 

(A)  IN SEC. 1(A) OF THE ACT THE WORDS "ULTIMATE DISTRIBUTION TO THE
PUBLIC" DO NOT IMPLY DISTRIBUTION TO DOMESTIC USERS ALONE.  P. 596. 

(B)  THE DECLARATION OF POLICY IN SEC. 1(A) OF THE ACT MAY NOT BE
CONSTRUED AS TAKING OUT OF SEC. 1(B) THE EXPRESS PROVISION SUBJECTING
TO REGULATION GAS SOLD FOR RESALE FOR "INDUSTRIAL USE."  P. 596. 

(C)  FROM THE PROVISO OF SEC. 4(E) OF THE ACT THAT THE COMMISSION
SHALL NOT HAVE AUTHORITY TO SUSPEND THE RATE "FOR THE SALE OF NATURAL
GAS FOR RESALE FOR INDUSTRIAL USE ONLY," IT MAY NOT BE INFERRED THAT
SUCH RATES ARE NOT SUBJECT TO REGULATION BY THE COMMISSION.  P. 596. 

(D)  THAT THE PETITIONERS ARE TREATED AS AN INTEGRATED SYSTEM FOR THE
PURPOSE OF ALLOCATION OF COSTS DOES NOT REQUIRE THAT INTERSTATE SALES
BY ONE TO THE OTHER FOR RESALE FOR INDUSTRIAL USE BE REGARDED AS NON
REGULABLE DIRECT INDUSTRIAL SALES.  P. 596. 

3.  THE PROVISION OF SEC. 1(B) THAT THE ACT SHALL NOT APPLY "TO THE
PRODUCTION OR GATHERING OF NATURAL GAS" DOES NOT PRECLUDE THE
COMMISSION FROM TAKING INTO ACCOUNT THE PRODUCTION PROPERTIES AND
GATHERING FACILITIES OF NATURAL GAS COMPANIES IN DETERMINING THE
REASONABLENESS OF RATES SUBJECT TO ITS JURISDICTION.  PP. 597, 604. 

(A)  THE COMMISSION IS NOT PRECLUDED UNDER THE ACT FROM INCLUDING
PRODUCTION AND GATHERING FACILITIES IN THE RATE BASE, AND IS NOT
REQUIRED INSTEAD TO MAKE AN ALLOWANCE IN OPERATING EXPENSES FOR THE
FAIR FIELD PRICE OF THE GAS AS A COMMODITY.  P. 600. 

4.  THE COMMISSION'S INCLUSION OF PRODUCTION PROPERTIES IN THE RATE
BASE AT ACTUAL LEGITIMATE COST WAS NOT ERRONEOUS AS MATTER OF LAW. 
ERROR IN THIS RESPECT COULD BE DETERMINED ONLY ON CONSIDERATION OF THE
END RESULT OF THE RATE ORDER, A QUESTION NOT PRESENTED ON THE LIMITED
REVIEW GRANTED IN THIS CASE.  P. 604. 

5.  GAS LEASES AND PRODUCING PROPERTIES WHICH WERE TRANSFERRED AT A
WRITE-UP FROM ONE WHOLLY OWNED SUBSIDIARY TO ANOTHER WERE PROPERLY
INCLUDED IN THE RATE BASE AT THE ORIGINAL COST TO THE TRANSFEROR, WHERE
NO ADDITIONAL INVESTMENT WAS SHOWN TO EXIST.  A.T. & T. CO. V. UNITED
STATES, 299 U.S. 232, DISTINGUISHED.  P. 607. 

COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMMISSION ET AL. 

NO. 379.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT* . 

*TOGETHER WITH NO. 380, CANADIAN RIVER GAS CO. V. FEDERAL POWER
COMMISSION ET AL., ALSO ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE TENTH CIRCUIT.  ARGUED JANUARY 30, 1945. 

CERTIORARI, 323 U.S. 807, TO REVIEW THE AFFIRMANCE OF RATE ORDERS OF
THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL POWER COMMISSION AFTER AN INVESTIGATION AND HEARING
ENTERED ORDERS UNDER SEC. 5 OF THE NATURAL GAS ACT OF 1938(52 STAT.
823, 15 U.S.C. SEC. 717D) FINDING THE INTERSTATE WHOLESALE RATES OF
PETITIONERS TO BE EXCESSIVE BY SPECIFIED AMOUNTS PER YEAR AND REQUIRING
PETITIONERS TO REDUCE THE RATES ACCORDINGLY.  43 P.U.R. (N.S.)  205. 
THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED THE
COMMISSION'S ORDERS.  142 F.2D 943.  THE CASES ARE HERE ON PETITIONS
FOR CERTIORARI WHICH WE GRANTED, LIMITED TO THE FEW QUESTIONS TO WHICH
WE WILL PRESENTLY ADVERT. 

PETITIONERS (TO WHOM WE WILL REFER AS CANADIAN AND AS COLORADO
INTERSTATE) HAD THEIR ORIGIN IN AN AGREEMENT MADE IN 1927 BETWEEN
SOUTHWESTERN DEVELOPMENT CO. (SOUTHWESTERN), STANDARD OIL CO.
(N.J.)(STANDARD) AND CITIES SERVICE CO. (CITIES SERVICE).  IT WAS THE
PURPOSE OF THE AGREEMENT TO BRING NATURAL GAS FROM THE PANHANDLE FIELD
IN TEXAS TO THE COLORADO MARKETS, INCLUDING DENVER AND PUEBLO. 
SOUTHWESTERN AGREED TO TRANSFER THROUGH A WHOLLY OWNED SUBSIDIARY,
AMARILLO OIL CO. (AMARILLO), CERTAIN GAS LEASEHOLDS AND PRODUCING
PROPERTIES TO A NEW SUBSIDIARY (CANADIAN) WHICH IT WOULD ORGANIZE FOR
THAT PURPOSE.  STANDARD AGREED TO FORM A NEW CORPORATION (COLORADO
INTERSTATE) AND TO FINANCE ITS CONSTRUCTION OF PIPELINE FACILITIES
WHICH WOULD CONNECT WITH CANADIAN'S FACILITIES AND TRANSPORT GAS FROM
THOSE POINTS IN THE PANHANDLE FIELD TO THE COLORADO MARKETS.  CITIES
SERVICE AGREED TO USE ITS BEST EFFORTS TO OBTAIN FRANCHISES THROUGH ITS
SUBSIDIARIES UNDER WHICH THE NATURAL GAS COULD BE DISTRIBUTED IN
CERTAIN CITIES IN COLORADO INCLUDING DENVER AND PUEBLO.  THE GAS WAS TO
BE SOLD TO COLORADO INTERSTATE BY CANADIAN AT COST (AS DEFINED IN THE
CONTRACT) FOR AT LEAST 20 YEARS FROM 1928.  WE WILL RETURN TO OTHER
DETAILS OF THIS TRIPARTITE AGREEMENT AND OF THE ORGANIZATION AND
FINANCING OF CANADIAN AND COLORADO INTERSTATE.  IT IS SUFFICIENT HERE
TO SAY THAT THE COMPANIES WERE INCORPORATED, THE PIPELINE WAS BUILT,
AND THE BUSINESS PUT INTO OPERATION.  ALTHOUGH CANADIAN AND COLORADO
INTERSTATE ARE SEPARATE COMPANIES, THE COMMISSION FOUND THAT THEIR
PROPERTIES HAVE BEEN OPERATED AS A SINGLE ENTERPRISE. 

CANADIAN PRODUCES FROM ITS OWN PROPERTIES ALL THE GAS WHICH IT
SELLS.  IT HAS ABOUT 300,000 ACRES OF NATURAL GAS LEASEHOLDS AND ON
DECEMBER 31, 1939, WAS OPERATING 94 WELLS.  ITS GATHERING SYSTEM
CONSISTS OF APPROXIMATELY 144 MILES OF PIPE.  IT OWNS AND OPERATES A
TRANSMISSION LINE WHICH CONNECTS WITH ITS GATHERING SYSTEM IN THE
PANHANDLE FIELD AND ENDS ABOUT 85 MILES DISTANT AT A POINT NEAR
CLAYTON, NEW MEXICO.  CANADIAN SELLS SOME OF ITS GAS AT THE WELLHEAD
AND ALONG THE TEXAS PORTION OF ITS TRANSMISSION LINE FOR CONSUMPTION IN
TEXAS.  IT ALSO SELLS GAS FOR RESALE IN CLAYTON, NEW MEXICO.  BUT THE
CHIEF PORTION OF THE GAS IN ITS TRANSMISSION LINE IS SOLD AT THAT POINT
TO COLORADO INTERSTATE.  THE PIPELINE OF COLORADO INTERSTATE EXTENDS TO
DENVER.  IT SELLS THE GAS TO VARIOUS DISTRIBUTING COMPANIES FOR RESALE
BY THEM IN COLORADO AND IN A FEW POINTS IN WYOMING.  FN1  COLORADO
INTERSTATE ALSO SELLS GAS FROM THIS PIPELINE DIRECT TO INDUSTRIAL
CUSTOMERS IN COLORADO FOR THEIR OWN USE. 

IT IS THUS APPARENT THAT THE PIPELINE FROM TEXAS TO COLORADO SERVES
THREE DIFFERENT USES:  (A) INTRASTATE TRANSPORTATION AND SALE IN TEXAS;
(B) INTERSTATE TRANSPORTATION AND SALE TO INDUSTRIAL CUSTOMERS; AND (C)
INTERSTATE TRANSPORTATION TO DISTRIBUTING COMPANIES FOR RESALE.  ONLY
SOME OF THOSE ACTIVITIES ARE SUBJECT TO THE JURISDICTION OF THE
COMMISSION.  FOR SEC. 1(B) OF THE ACT PROVIDES: 

"THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS."  IT IS
AROUND THE MEANING AND IMPLICATIONS OF THAT PROVISION THAT MOST OF THE
PRESENT CONTROVERSY TURNS. 

ALLOCATION OF COST OF SERVICE.  THE QUESTIONS RAISED BY COLORADO
INTERSTATE AND SOME OF THOSE RAISED BY CANADIAN RELATE TO THE FAILURE
OF THE COMMISSION (1) TO SEPARATE THE PHYSICAL PROPERTY USED IN COMMON
IN THE INTRASTATE AND INTERSTATE BUSINESS; (2) TO SEPARATE THAT USED IN
COMMON IN THE SALES OF GAS TO INDUSTRIAL CONSUMERS AND THE SALES OF GAS
FOR RESALE; AND (3) TO SEPARATE THE PROPERTY USED EXCLUSIVELY IN
INTRASTATE BUSINESS OR EXCLUSIVELY FOR INDUSTRIAL SALES.  THE
COMMISSION THOUGHT IT UNNECESSARY TO MAKE SUCH A SEPARATION OF THE
PROPERTIES.  IT NOTED THAT NOWHERE IN THE EVIDENCE PRESENTED BY
PETITIONERS WAS THERE "A COMPLETE PRESENTATION OF THE ENTIRE OPERATIONS
OF THE COMPANY BROKEN DOWN BETWEEN JURISDICTIONAL AND NON
JURISDICTIONAL OPERATIONS."  43 P.U.R. (N.S.), P. 232.  AND IT
CONCLUDED, "ALL THAT CAN BE ACCOMPLISHED BY AN ALLOCATION OF PHYSICAL
PROPERTIES CAN BE ATTAINED BY ALLOCATING COSTS INCLUDING THE RETURN. 
THE LATTER METHOD IS BY FAR THE MOST PRACTICAL AND BUSINESSLIKE."  ID.,
P. 232.  THE COMMISSION ADOPTED THE SO-CALLED "DEMAND AND COMMODITY"
METHOD FOR ALLOCATING COSTS.  CF. ARKANSAS LOUISIANA GAS CO. V.
TEXARKANA, 96 F.2D 179, 185.  IT TOOK THE COSTS AND DIVIDED THEM INTO
THREE CLASSES - VOLUMETRIC, CAPACITY, DISTRIBUTION.  FN2  COSTS
RELATING TO THE PRODUCTION SYSTEM WERE TREATED AS VOLUMETRIC.  FN3
THESE INCLUDED RATE OF RETURN AND DEPRECIATION AND DEPLETION ON LEASES
AND WELLS.  THESE VOLUMETRIC COSTS WERE ALLOCATED TO THE CUSTOMERS IN
PROPORTION TO THE NUMBER OF MCF'S DELIVERED TO EACH CUSTOMER IN 1939. 
THE LARGER SHARE OF THE TRANSMISSION COSTS OF THE DENVER PIPELINE WERE
CLASSIFIED AS CAPACITY COSTS.  SUPPLIES AND EXPENSES OF COMPRESSING
SYSTEMS, MAINTENANCE OF COMPRESSING SYSTEM EQUIPMENT AND ACCRUALS FOR
ITS DEPRECIATION WERE CLASSED AS VOLUMETRIC.  AND ONE-HALF OF THE
RETURN AND INCOME TAXES ON THE DENVER PIPELINE AND ONE-HALF OF
OPERATING LABOR ON THE COMPRESSING SYSTEM WERE CLASSED AS VOLUMETRIC,
THE OTHER HALF BEING CLASSED AS CAPACITY.  CAPACITY COSTS WERE
ALLOCATED TO THE CUSTOMERS IN THE RATIO THAT THE MCF SALES TO EACH
CUSTOMER ON THE SYSTEM PEAK DAY OF FEBRUARY 9, 1939, BORE TO THE TOTAL
SALES TO ALL CUSTOMERS ON THAT DAY.  DISTRIBUTION COSTS WERE COMPOSED
IN PART OF DEPRECIATION, TAXES, AND RETURN ON INVESTMENT IN METERING
AND REGULATING EQUIPMENT THROUGH WHICH GAS IS DELIVERED AT INDIVIDUAL
STATIONS TO EACH CUSTOMER.  THESE WERE ALLOCATED TO EACH CUSTOMER IN
THE RATIO WHICH THE INVESTMENT FOR EACH CUSTOMER BORE TO THE TOTAL
INVESTMENT IN SUCH FACILITIES WHICH WERE AVAILABLE TO SERVE ALL
CUSTOMERS.  DISTRIBUTION COSTS ALSO INCLUDED OPERATING AND MAINTENANCE
EXPENSES INCURRED IN OPERATING THE METERING AND REGULATING STATIONS. 
THESE WERE ALLOCATED ON THE BASIS OF THE NUMBER OF STATIONS. 

THE FUNCTION WHICH AN ALLOCATION OF COSTS (INCLUDING RETURN) IS
DESIGNED TO PERFORM IN A RATE CASE OF THIS CHARACTER IS CLEAR.  THE
AMOUNT OF GROSS REVENUE FROM EACH CLASS OF BUSINESS IS KNOWN.  SOME OF
THOSE REVENUES ARE DERIVED FROM SALES AT RATES WHICH THE COMMISSION HAS
NO POWER TO FIX.  THE OTHER PART OF THE GROSS REVENUES COMES FROM THE
INTERSTATE WHOLESALE RATES WHICH ARE UNDER THE COMMISSION'S
JURISDICTION.  THE PROBLEM IS TO ALLOCATE TO EACH CLASS OF THE BUSINESS
ITS FAIR SHARE OF THE COSTS.  IT IS OF COURSE IMMATERIAL THAT THE
REVENUES FROM THE INTRASTATE SALES OR THE DIRECT INDUSTRIAL SALES MAY
EXCEED THEIR COSTS, SINCE THE AUTHORITY TO REGULATE THOSE PHASES OF THE
BUSINESS IS LACKING.  TO THE EXTENT, HOWEVER, THAT THE REVENUES FROM
THE INTERSTATE WHOLESALE BUSINESS EXCEED THE COSTS ALLOCABLE TO THAT
PHASE OF THE BUSINESS, THE INTERSTATE WHOLESALE RATES ARE EXCESSIVE. 
THE USE OF THAT METHOD IN THESE CASES PRODUCED THE FOLLOWING RESULTS:

    CANADIAN

          EXCESS REVENUE

                    REVENUES     COSTS         OVER COSTS 

REGULATED............ $2,151,000    $1,590,000          $561,000 

UNREGULATED..........  242,000       188,000             54,00

      COLORADO INTERSTATE

                EXCESS REVENUE

                    REVENUES      COSTS         OVER COSTS 

REGULATED............ $4,438,000    $2,373,000        $2,065,000 

UNREGULATED..........  1,335,000     1,204,000           131,000 

THE COMMISSION DID NOT INCLUDE IN THE RATE REDUCTIONS WHICH IT
ORDERED ANY OF THE EXCESS REVENUES OVER COSTS FROM THE UNREGULATED
BUSINESS.  THE REDUCTIONS ORDERED WERE MEASURED SOLELY BY THE EXCESS
REVENUES OVER COSTS IN THE REGULATED BUSINESS, VIZ., $2,065,000 IN CASE
OF COLORADO INTERSTATE AND $561,000 IN CASE OF CANADIAN. 

COLORADO INTERSTATE AND CANADIAN MAKE SEVERAL OBJECTIONS TO THAT
METHOD.  THEY MAINTAIN IN THE FIRST PLACE THAT A SEGREGATION OF THE
PHYSICAL PROPERTY BASED UPON USE IS NECESSARY SO THAT THE PAYMENT DUE
FOR THE USE OF THAT PROPERTY WHICH IS IN THE PUBLIC SERVICE MAY BE
DETERMINED.  RELIANCE FOR THAT POSITION IS RESTED ON THE MINNESOTA RATE
CASES, 230 U.S. 352, 435, AND SMITH V. ILLINOIS BELL TELEPHONE CO., 282
U.S. 133, 146.  THOSE WERE CASES WHICH INVOLVED STATE REGULATION OF
INTRASTATE RATES OF COMPANIES DOING BOTH AN INTRASTATE AND INTERSTATE
BUSINESS.  BUT THE RULE FASHIONED BY THIS COURT FOR USE IN THOSE
SITUATIONS WAS NOT WRITTEN INTO THE NATURAL GAS ACT.  CONGRESS INDEED
PRESCRIBED NO FORMULA FOR DETERMINING HOW THE INTERSTATE WHOLESALE
BUSINESS, WHOSE RATES ARE REGULATED, SHOULD BE SEGREGATED FROM THE
OTHER PHASES OF THE BUSINESS WHOSE RATES ARE NOT REGULATED.  RATE
MAKING IS ESSENTIALLY A LEGISLATIVE FUNCTION.  MUNN V. ILLINOIS, 94
U.S. 113.  CONGRESS, TO BE SURE, HAS PROVIDED FOR JUDICIAL REVIEW OF
THE COMMISSION'S ORDERS.  SEC. 19.  BUT THAT REVIEW IS LIMITED TO
KEEPING THE COMMISSION WITHIN THE BOUNDS WHICH CONGRESS HAS CREATED. 
WHEN CONGRESS, AS HERE, FAILS TO PROVIDE A FORMULA FOR THE COMMISSION
TO FOLLOW, COURTS ARE NOT WARRANTED IN REJECTING THE ONE WHICH THE
COMMISSION EMPLOYS UNLESS IT PLAINLY CONTRAVENES THE STATUTORY SCHEME
OF REGULATION.  IF CONGRESS HAD PRESCRIBED A FORMULA IT WOULD BE THE
DUTY OF THE COMMISSION TO FOLLOW IT.  BUT WE CANNOT SAY THAT UNDER THE
NATURAL GAS ACT THE COMMISSION CAN EMPLOY ONLY ONE ALLOCATION FORMULA
AND THAT THAT FORMULA MUST ENTAIL A SEGREGATION OF PROPERTY.  A
SEPARATION OF PROPERTIES IS MERELY A STEP IN THE DETERMINATION OF COSTS
PROPERLY ALLOCABLE TO THE VARIOUS CLASSES OF SERVICES RENDERED BY A
UTILITY.  BUT WHERE, AS HERE, SEVERAL CLASSES OF SERVICES HAVE A COMMON
USE OF THE SAME PROPERTY, DIFFICULTIES OF SEPARATION ARE OBVIOUS. 
ALLOCATION OF COSTS IS NOT A MATTER FOR THE SLIDE-RULE.  IT INVOLVES
JUDGMENT ON A MYRIAD OF FACTS.  IT HAS NO CLAIM TO AN EXACT SCIENCE. 
HAMILTON, COST AS A STANDARD FOR PRICE, 4 LAW & CONT.  PROB.  321.  BUT
NEITHER DOES THE SEPARATION OF PROPERTIES WHICH ARE NOT IN FACT
SEPARABLE BECAUSE THEY FUNCTION AS AN INTEGRATED WHOLE.  MR. JUSTICE
BRANDEIS, SPEAKING FOR THE COURT IN GROESBECK V. DULUTH, S.S. & A.R.
CO., 250 U.S. 607, 614-615, NOTED THAT "IT IS MUCH EASIER TO REJECT
FORMULAS PRESENTED AS BEING MISLEADING THAN TO FIND ONE APPARENTLY
ADEQUATE."  UNDER THIS ACT THE APPROPRIATENESS OF THE FORMULA EMPLOYED
BY THE COMMISSION IN A GIVEN CASE RAISES QUESTIONS OF FACT, NOT OF
LAW. 

COLORADO INTERSTATE CLAIMS THAT THE COMMISSION'S FORMULA IGNORED OR
AT LEAST FAILED TO GIVE FULL EFFECT TO THE PRIORITY WHICH THE WHOLESALE
GAS HAS OVER DIRECT INDUSTRIAL SALES - A PRIORITY RECOGNIZED IN THE
CONTRACTS WITH INDUSTRIAL USERS AND IN THE MUNICIPAL FRANCHISES.  BUT
OVER THE YEARS THE INTERRUPTIONS OR CURTAILMENTS IN SERVICE TO DIRECT
INDUSTRIAL CUSTOMERS APPEAR TO HAVE BEEN SLIGHT.  FN4  MOREOVER, TO THE
EXTENT THAT THE PRIORITY ACCORDED WHOLESALE GAS WAS ACTUALLY EXERCISED
DURING THE TEST YEAR (1939) THE ALLOCATION OF COSTS MADE BY THE
COMMISSION GAVE FULL EFFECT TO IT.  AS WE HAVE SEEN, VOLUMETRIC COSTS
WERE ALLOCATED TO THE CUSTOMERS IN PROPORTION TO THE NUMBER OF MCF'S
DELIVERED TO EACH CUSTOMER DURING THE YEAR; CAPACITY COSTS WERE
ALLOCATED IN THE RATIO THAT THE MCF SALES TO EACH CUSTOMER ON THE
SYSTEM PEAK DAY BORE TO THE TOTAL SALES ON THAT DAY.  THE FORMULA USED
REFLECTED ALL ACTUAL CURTAILMENTS OF LOAD TO EACH CUSTOMER DURING THE
YEAR AND ON THE SYSTEM PEAK DAY.    COLORADO INTERSTATE OBJECTS BECAUSE
THE COMMISSION TREATED THE TRANSMISSION LINE AS A UNIT.  IT POINTS OUT
THAT SOME LATERALS AND EQUIPMENT (SUCH AS METERING STATIONS) ARE USED
EXCLUSIVELY FOR MAKING WHOLESALE SALES, SOME ARE USED EXCLUSIVELY FOR
MAKING INTRASTATE SALES OR DIRECT INDUSTRIAL SALES, AND SOME ARE USED
IN COMMON IN VARYING DEGREES BY THE SEVERAL CLASSES OF BUSINESS.  IT IS
POINTED OUT, FOR EXAMPLE, THAT THE LINE NORTH OF PUEBLO IS USED ALMOST
EXCLUSIVELY BY THE REGULATED BUSINESS BUT THAT UNDER THE COMMISSION'S
FORMULA THE PIPELINE WAS TREATED AS IF ALL THE GAS WENT INTO THE PIPE
IN TEXAS AND CAME OUT AT THE DENVER CITY GATE.  THESE OBJECTIONS ARE
PARTIALLY MET BY THE MANNER IN WHICH DISTRIBUTION COSTS, TO WHICH WE
HAVE REFERRED, WERE ALLOCATED.  BUT THAT IS NO MORE THAN A PARTIAL
ANSWER SINCE THEY PERTAINED ONLY TO METERING AND REGULATING EQUIPMENT. 
THE LATERALS WERE NOT SEGREGATED.  THEY, HOWEVER, APPEAR TO BE USED
MORE COMMONLY FOR DIRECT INDUSTRIAL RATHER THAN FOR WHOLESALE SALES;
AND WE ARE NOT CONVINCED THAT THE DIRECT INDUSTRIAL SALES WERE SADDLED
WITH GREATER COSTS THAN THEY WOULD HAVE BEEN HAD THE LATERALS BEEN
SEGREGATED.  THE GRAVAMEN OF THIS COMPLAINT IS THAT THE INDUSTRIAL
SALES ARE BEING BURDENED WITH COSTS OF A PART OF THE SYSTEM WHICH THE
DIRECT INDUSTRIAL GAS NEVER USES.  THAT CONTENTION POINTS UP OUR
EARLIER OBSERVATION THAT JUDGMENT AND DISCRETION CONTROL BOTH THE
SEPARATION OF PROPERTY AND THE ALLOCATION OF COSTS WHEN IT IS SOUGHT TO
REDUCE TO ITS COMPONENT PARTS A BUSINESS WHICH FUNCTIONS AS AN
INTEGRATED WHOLE.  THE COMMISSION FOUND THAT BUT FOR THE DIRECT
INDUSTRIAL MARKET AT PUEBLO, COLORADO AND THE WHOLESALE MARKET AT
DENVER, THE PIPELINE WOULD NOT HAVE BEEN CONSTRUCTED.  43 P.U.R.
(N.S.)  P. 210.  IT IS THEREFORE OBVIOUSLY FAIR TO DETERMINE
TRANSMISSION COSTS FOR THE PIPELINE AS A WHOLE AND NOT TO COMPUTE THEM
ON A MILEAGE DEMAND BASIS.  IN THAT WAY THE BENEFICIARIES OF THE ENTIRE
PROJECT SHARE EQUITABLY IN THE COST.  TO ALLOW THE COSTS TO ACCUMULATE
THE CLOSER THE GAS GETS TO DENVER WOULD BE TO ASSUME THAT THE EXTENSION
TO DENVER WAS A SEPARATE PROJECT ON WHICH THE EARLIER CUSTOMERS WERE IN
NO WAY DEPENDENT.  THESE CIRCUMSTANCES ILLUSTRATE THAT CONSIDERATIONS
OF FAIRNESS, NOT MERE MATHEMATICS, GOVERN THE ALLOCATION OF COSTS.  CF.
WABASH VALLEY ELECTRIC CO. V. YOUNG, 287 U.S. 488, 499.  WHAT WE HAVE
SAID ALSO ANSWERS CANADIAN'S COMPLAINT THAT THE WHOLESALE SALES IN
TEXAS FOR CONSUMPTION IN THE TOWNS OF DALHART, HARTLEY, AND TEXLINE,
TEXAS, ARE BURDENED WITH TOO LARGE A SHARE OF TRANSMISSION COSTS.  WE
CAN SEE IN THIS SITUATION NO DIFFERENCE BETWEEN THOSE CUSTOMERS AND THE
ONES LOCATED AT MORE DISTANT POINTS ON THE PIPELINE.  FN5 

COLORADO INTERSTATE OBJECTS TO THAT PART OF THE COMMISSION'S
TREATMENT OF TRANSMISSION COSTS WHEREBY IT ASSIGNED 50% OF THE RETURN
TO CAPACITY COSTS AND 50% TO VOLUMETRIC COSTS.  THE CONTENTION IS THAT
THE ENTIRE RETURN ON THE TRANSMISSION FACILITIES SHOULD BE APPORTIONED
TO CAPACITY COSTS ON THE THEORY THAT THE VOLUMETRIC COSTS HAVE NO
RELATION TO THE PROPERTY REQUIRED FOR MEETING THE MAXIMUM DEMANDS OF
THE WHOLESALE BUSINESS AND THAT THE METHOD EMPLOYED DEPARTS FROM THE
REQUIREMENTS OF A FAIR RETURN ON THE PROPERTY DEVOTED TO THE PUBLIC
SERVICE.  BUT, AS WE HAVE SEEN, CAPACITY COSTS WERE ALLOCATED TO
CUSTOMERS IN THE RATIO THAT THE MCF SALES TO EACH CUSTOMER ON THE
SYSTEM PEAK DAY BORE TO THE TOTAL SALES TO ALL CUSTOMERS ON THAT DAY. 
IT IS NOT APPARENT WHY DIRECT INDUSTRIAL SALES SHOULD CARRY A LIGHTER
SHARE OF THE COSTS MERELY BECAUSE THEIR USE OF THE PIPELINE MAY BE LESS
ON THE SYSTEM PEAK DAY.  AS THE COMMISSION POINTS OUT, IF THE METHOD
ADVANCED BY COLORADO INTERSTATE WERE USED, THE AMOUNT PAID BY THE
INDUSTRIAL CUSTOMER FOR TRANSPORTATION OF THE GAS THROUGH THE PIPELINE
WOULD BE MEASURED NOT BY THE CUSTOMER'S USE THROUGHOUT THE YEAR, WHICH
MIGHT BE SUBSTANTIAL, BUT BY ITS USE ON THE SYSTEM PEAK DAY WHICH MIGHT
BE SLIGHT.  IN THAT EVENT THE INDUSTRIAL CUSTOMER WOULD OBTAIN TO AN
EXTENT FREE TRANSPORTATION OF GAS. 

COLORADO INTERSTATE ALSO MAKES OBJECTION TO THE SELECTION AND USE OF
FEBRUARY 9, 1939, AS THE SYSTEM PEAK DAY AND THE ALLOCATION OF THE
CAPACITY COST COMPONENT OF THE TRANSMISSION COSTS ON THE BASIS OF USE
ON THAT DAY.  IT IS ARGUED THAT THE MEAN TEMPERATURE FOR THAT DAY WAS 8
DEGREE FAHRENHEIT ABOVE ZERO, THAT MUCH LOWER MEAN TEMPERATURES ARE
EXPERIENCED IN THE COLORADO AREA, THAT AS THE TEMPERATURE DROPS THE
LOAD OF RESALE GAS RAPIDLY INCREASES, AND THAT IF THESE CAPACITY COSTS
WERE ALLOCATED ON THE BASIS OF USE DURING THE COLDEST DAY THE RESALE
GAS WOULD CARRY A GREATER PORTION OF THEM.  WE DO NOT STOP TO DEVELOP
THE POINT.  WE HAVE CAREFULLY CONSIDERED COLORADO INTERSTATE'S
CONTENTION.  AS WE READ THE RECORD, IF EITHER OF THE DAYS SELECTED BY
COLORADO INTERSTATE WERE TAKEN AS THE SYSTEM PEAK DAYS, THERE WOULD BE
ALLOCATED TO THE INDUSTRIAL GAS A LARGER PORTION OF THESE CAPACITY
COSTS THAN THE COMMISSION ALLOCATED.  ON THAT SHOWING WE CANNOT SAY
THAT THE CHOICE OF FEBRUARY 9, 1939, WAS UNFAIR. 

COLORADO INTERSTATE AND CANADIAN OBJECT TO THE COMMISSION'S USE OF
THE RETURN.  THE COMMISSION INCLUDED IN THE TOTAL COST OF SERVICE FOR
THESE COMPANIES A 6 1/2 PER CENT RETURN ON THE RATE BASE.  FN6  IN
OTHER WORDS, THE 6 1/2 PER CENT RETURN WAS COMPUTED ON THE BASIS OF ALL
THE PROPERTY USED BY PETITIONERS IN THEIR VARIOUS CLASSES OF BUSINESS -
INTRASTATE SALES, DIRECT INDUSTRIAL SALES, AND INTERSTATE WHOLESALE
SALES.  FN7  NOW IT IS APPARENT THAT IF THE REDUCTION ORDERED WAS BASED
ON THE EXCESS OF REVENUES FROM ALL CLASSES OF BUSINESS OVER THE
AGGREGATE COSTS, THE RESULT WOULD BE TO REDUCE TO A COMMON LEVEL THE
PROFITS FROM EACH CLASS.  IN THAT CASE, WHENEVER A COMPANY WAS MAKING A
HIGHER RETURN ON ITS UNREGULATED BUSINESS THAN THE RATE OF RETURN
ALLOWED FOR THE REGULATED BUSINESS, THE EXCESS EARNINGS FROM THE
UNREGULATED PART WOULD BE APPROPRIATED TO THE ENTIRE BUSINESS.  WHEN
THE UNREGULATED BUSINESS WAS BEING OPERATED AT A LOSS OR AT LESS THAN
THE RETURN WHICH WAS ALLOWED, EXCESS EARNINGS FROM THE REGULATED
BUSINESS WOULD BE APPROPRIATED TO THE UNREGULATED BUSINESS.  A LOW RATE
MIGHT THEREFORE BE CONCEALED BY SIPHONING EARNINGS FROM THE UNREGULATED
BUSINESS; A HIGH RATE MIGHT BE BUILT UP BY MAKING THE REGULATED
BUSINESS SHARE THE LOSSES OF THE UNREGULATED ONE. 

IT IS SAID THAT THAT IS WHAT HAPPENED HERE.  BUT THAT IS NOT TRUE. 
AS WE HAVE SEEN, THE COMMISSION ORDERED A RATE REDUCTION BASED SOLELY
ON THE EXCESS OF REVENUES OVER COSTS (INCLUDING RETURN) DERIVED FROM
THE REGULATED BUSINESS.  NONE OF THE EXCESS REVENUES OVER COSTS
(INCLUDING RETURN) FROM THE UNREGULATED BUSINESS WAS INCLUDED IN THAT
REDUCTION.  IF THE COMMISSION IN DETERMINING COSTS OF THE UNREGULATED
BUSINESS HAD USED A HIGHER RATE OF RETURN, IT WOULD HAVE INCREASED THE
COSTS OF THAT BUSINESS AND REDUCED THE EXCESS REVENUES ALLOCABLE TO IT.
BUT SINCE UNDER THE COMMISSION'S METHOD OF ALLOCATION THE AMOUNT OF
THAT EXCESS WOULD NOT BE REFLECTED IN THE REDUCTION ORDERED, THERE
WOULD BE NO DIFFERENCE IN RESULT. 

THE CASES ARE PRESENTED AS IF THE 6 1/2 PER CENT ALLOWED BY THE
COMMISSION ON THE RATE BASE LIMITS THE EARNINGS FROM THE WHOLE
ENTERPRISE TO 6 1/2 PER CENT.  THAT ALSO IS NOT TRUE.  THE RETURN
MERELY MEASURES THE EARNINGS ALLOWED FROM THE REGULATED BUSINESS.  AS
WE HAVE NOTED, THE EXCESS OF EARNINGS WHICH COLORADO INTERSTATE MAKES
FROM DIRECT INDUSTRIAL SALES (ON THE BASIS OF 6 1/2 PER CENT RETURN) IS
$131,000 ANNUALLY.  THE COMMISSION POINTED OUT (43 P.U.R. (N.S.)  P.
230) THAT IF COLORADO INTERSTATE "RETAINS THESE EARNINGS IN EXCESS OF A
6 1/2 PER CENT RATE OF RETURN ON ITS SALES TO THESE CUSTOMERS, ITS RATE
OF RETURN ON ITS ENTIRE BUSINESS IS INCREASED TO APPROXIMATELY 8 PER
CENT AFTER PLACING INTO EFFECT THE REDUCTIONS IN RATES ORDERED
HEREIN." 

OF THE OTHER OBJECTIONS MADE BY CANADIAN AND COLORADO INTERSTATE ON
THIS PHASE OF THE CASE, WE NEED MENTION ONLY ONE.  FN8  IT IS CONTENDED
THAT THE FINDINGS OF THE COMMISSION ON THE ALLOCATION OF COSTS ARE
INADEQUATE AND THAT THE CASES SHOULD BE REMANDED TO THE COMMISSION SO
THAT APPROPRIATE FINDINGS MAY BE MADE.  THE FINDINGS OF THE COMMISSION
IN THIS REGARD LEAVE MUCH TO BE DESIRED SINCE THEY ARE QUITE SUMMARY
AND INCORPORATE BY REFERENCE THE COMMISSION'S STAFF'S EXHIBITS ON
ALLOCATION OF COST.  BUT THE PATH WHICH IT FOLLOWED CAN BE DISCERNED. 
AND WE DO NOT BELIEVE ITS FINDINGS ARE SO VAGUE AND OBSCURE AS TO MAKE
THE JUDICIAL REVIEW CONTEMPLATED BY THE ACT A PERFUNCTORY PROCESS.  CF.
UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294 U.S. 499; UNITED
STATES V. CAROLINA FREIGHT CARRIERS CORP., 315 U.S. 475. 

CANADIAN'S SALES TO COLORADO INTERSTATE.  THE COMMISSION ORDERED A
BLANKET REDUCTION OF $561,000 IN THE SALES PRICE OF ALL TYPES OF GAS
SOLD BY CANADIAN TO COLORADO INTERSTATE.  A SUBSTANTIAL PART OF THAT
GAS IS SOLD TO COLORADO INTERSTATE FOR RESALE TO DIRECT INDUSTRIAL
CUSTOMERS.  CANADIAN MAINTAINS THAT THE COMMISSION HAS NO AUTHORITY TO
FIX THE RATE ON THE SALE OF THAT PORTION OR CLASS OF GAS TO COLORADO
INTERSTATE.  SEC. 1(B) OF THE ACT, HOWEVER, PROVIDES, AS WE HAVE NOTED,
THAT THE PROVISIONS OF THE ACT APPLY "TO THE SALE IN INTERSTATE
COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR
DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE."  CANADIAN,
HOWEVER, SEEKS SUPPORT FOR ITS POSITION IN THE DECLARATION IN SEC. 1(A)
OF THE ACT THAT "THE BUSINESS OF TRANSPORTING AND SELLING NATURAL GAS
FOR ULTIMATE DISTRIBUTION TO THE PUBLIC IS AFFECTED WITH A PUBLIC
INTEREST."  BUT WE FIND NO WARRANT FOR SAYING THAT THE WORDS "ULTIMATE
DISTRIBUTION TO THE PUBLIC" IMPLY DISTRIBUTION TO DOMESTIC USERS
ALONE.  INDUSTRIAL USERS ARE AS MUCH A PART OF THE "PUBLIC" AS DOMESTIC
USERS AND OTHER COMMERCIAL USERS.  AND THE DISTRIBUTION TO ONE IS AS
"ULTIMATE" AS THE DISTRIBUTION TO THE OTHER.  MOREOVER, THAT
DECLARATION OF POLICY MAY NOT BE USED TO TAKE OUT OF SEC. 1(B) OF THE
ACT THE EXPRESS PROVISION SUBJECTING TO REGULATION GAS SOLD FOR RESALE
FOR "INDUSTRIAL USE."  FURTHERMORE, THE DECLARATION OF POLICY CONTAINED
IN SEC. 1(A) IS NOT AS NARROW AS CANADIAN SUGGESTS.  FOR SEC. 1(A) GOES
ON TO SAY THAT FEDERAL REGULATION IN MATTERS RELATING TO "THE
TRANSPORTATION OF NATURAL GAS AND THE SALE THEREOF IN INTERSTATE AND
FOREIGN COMMERCE IS NECESSARY IN THE PUBLIC INTEREST."  SALES FOR
RESALE TO INDUSTRIAL USERS IS EMBRACED IN THE BROAD SWEEP OF THAT
LANGUAGE.  CANADIAN ALSO SEEKS SUPPORT FOR ITS POSITION FROM THE
PROVISO IN SEC. 4(E) OF THE ACT THAT THE COMMISSION SHALL NOT HAVE
AUTHORITY TO SUSPEND THE RATE "FOR THE SALE OF NATURAL GAS FOR RESALE
FOR INDUSTRIAL USE ONLY."  CANADIAN INFERS FROM THAT PROVISION THAT
SUCH RATES ARE NOT SUBJECT TO REGULATION BY THE COMMISSION.  THE SHORT
ANSWER, HOWEVER, IS THAT THE AUTHORITY OF THE COMMISSION TO SUSPEND
RATES IS RESTRICTED TO RATES OVER WHICH IT HAS JURISDICTION.  IF THE
COMMISSION HAD NO AUTHORITY OVER THE RATES IN QUESTION, THE PROVISO IN
SEC. 4(E) WOULD BE UNNECESSARY.  ACCORDINGLY, IT SEEMS CLEAR THAT ALL
OF THE GAS SOLD BY CANADIAN TO COLORADO INTERSTATE FOR RESALE,
INCLUDING THAT SOLD FOR RESALE FOR INDUSTRIAL USE, IS SUBJECT TO RATE
REGULATION BY THE COMMISSION. 

THERE IS THE FURTHER SUGGESTION IN CANADIAN'S ARGUMENT THAT SINCE THE
COMMISSION TREATED CANADIAN AND COLORADO INTERSTATE AS AN INTEGRATED
SYSTEM FOR PURPOSES OF ALLOCATION OF COSTS, IT SHOULD HAVE LIMITED ITS
RATE REDUCTION TO THOSE RATES OVER WHICH IT WOULD HAVE JURISDICTION IF
THE TWO COMPANIES WERE IN FACT ONE.  IT IS ARGUED THAT IN SUCH EVENT
THERE WOULD BE NO SALES BETWEEN CANADIAN AND COLORADO INTERSTATE AND
THE LATTER'S DIRECT SALES TO INDUSTRIAL USERS WOULD NOT BE SUBJECT TO
THE JURISDICTION OF THE COMMISSION.  THE DIFFICULTY IS THAT COLORADO
INTERSTATE PURCHASES ITS GAS FROM CANADIAN AND THE PURCHASE PRICE IS
THE INTERSTATE WHOLESALE RATE WHICH IS AN OPERATING EXPENSE ON WHICH
COLORADO INTERSTATE'S RESALE RATES ARE COMPUTED.  MOREOVER, CANADIAN AS
REQUIRED BY SEC. 4(C) OF THE ACT HAS ITS RATE TO COLORADO INTERSTATE IN
A RATE SCHEDULE ON FILE WITH THE COMMISSION.  UNLESS AND UNTIL A NEW
RATE SCHEDULE WAS FILED OR THE OLD SCHEDULE CHANGED BY THE COMMISSION,
THAT RATE WOULD HAVE TO BE EXACTED BY CANADIAN AND PAID BY COLORADO
INTERSTATE.  SEC. 4(D).  THAT RATE THEREFORE COULD HARDLY BE MAINTAINED
IF COLORADO INTERSTATE WERE ALLOWED AS AN OPERATING EXPENSE A LESSER
AMOUNT FOR THE GAS IT PURCHASES FROM CANADIAN. 

PRODUCING AND GATHERING FACILITIES.  SEC. 1(B) WHICH WE HAVE ALREADY
QUOTED STATES THAT THE PROVISIONS OF THE ACT "SHALL NOT APPLY  ...  TO
THE PRODUCTION OR GATHERING OF NATURAL GAS."  THE COMMISSION DETERMINED
A RATE BASE WHICH INCLUDES CANADIAN'S PRODUCTION AND GATHERING
PROPERTIES AS WELL AS ITS INTERSTATE TRANSMISSION SYSTEM.  THE RETURN
ALLOWED BY THE COMMISSION WAS LIMITED TO 6 1/2 PER CENT OF THE RATE
BASE SO COMPUTED.  THE COMMISSION MADE AN ALLOWANCE FOR WORKING CAPITAL
TO ENABLE CANADIAN TO CARRY ON ITS PRODUCTION AND GATHERING
OPERATIONS.  THE COMMISSION MADE AN ALLOWANCE FOR CANADIAN'S OPERATING
EXPENSES WHICH INCLUDED THE COST OF PRODUCING AND GATHERING NATURAL
GAS.  THE COMMISSION APPLIED ITS FORMULA FOR ALLOCATION OF COSTS TO
CANADIAN'S PRODUCTION AND GATHERING PROPERTIES AS WELL AS TO ITS OTHER
FACILITIES.  THUS CANADIAN CONTENDS THAT CONTRARY TO THE MANDATE OF
SEC. 1(B) THE COMMISSION HAS UNDERTAKEN TO REGULATE THE PRODUCTION AND
GATHERING OF NATURAL GAS.  RELIANCE FOR THAT POSITION IS SOUGHT FROM
OTHER PROVISIONS OF THE ACT.  IT IS POINTED OUT THAT SEC. 1(A) DECLARES
THAT "THE BUSINESS OF TRANSPORTING AND SELLING NATURAL GAS" FOR
ULTIMATE DISTRIBUTION TO THE PUBLIC IS AFFECTED WITH A PUBLIC INTEREST
AND THAT FEDERAL REGULATION "IN MATTERS RELATING TO THE TRANSPORTATION
OF NATURAL GAS AND THE SALE THEREOF" IN INTERSTATE COMMERCE IS
NECESSARY IN THE PUBLIC INTEREST.  TRANSPORTATION AND SALE DO NOT
INCLUDE PRODUCTION OR GATHERING.  OTHER SECTIONS EMPHASIZE THAT
DISTINCTION.  THUS SEC. 4 AND SEC. 5, THE RATE REGULATING PROVISIONS OF
THE ACT, REFER TO CHARGES FOR THE "TRANSPORTATION OR SALE OF NATURAL
GAS, SUBJECT TO THE JURISDICTION OF THE COMMISSION."  SEC. 7(A) RELATES
TO THE EXTENSION OR IMPROVEMENT OF "TRANSPORTATION FACILITIES"; SEC.
7(B) TO THE ABANDONMENT OF "FACILITIES SUBJECT TO THE JURISDICTION OF
THE COMMISSION"; SEC. 7(C) TO THE CONSTRUCTION OR EXTENSION OF
FACILITIES FOR THE "TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO
THE JURISDICTION OF THE COMMISSION."  IT IS POINTED OUT THAT APART FROM
SEC. 1(B) ONLY A FEW SECTIONS OF THE ACT REFER TO "PRODUCTION."  SEC.
5(B) GIVES THE COMMISSION POWER TO INVESTIGATE "THE COST OF THE
PRODUCTION OR TRANSPORTATION OF NATURAL GAS BY A NATURAL-GAS COMPANY IN
CASES WHERE THE COMMISSION HAS NO AUTHORITY TO ESTABLISH A RATE
GOVERNING THE TRANSPORTATION OR SALE OF SUCH NATURAL GAS."  THIS GOES
NO FURTHER, IT IS SAID, THAN TO AID STATE REGULATION.  SEC. 9(A)
AUTHORIZES THE COMMISSION TO ASCERTAIN AND DETERMINE AND BY ORDER FIX
"THE PROPER AND ADEQUATE RATES OF DEPRECIATION AND AMORTIZATION OF THE
SEVERAL CLASSES OF PROPERTY OF EACH NATURAL-GAS COMPANY USED OR USEFUL
IN THE PRODUCTION, TRANSPORTATION, OR SALE OF NATURAL GAS."  SEC. 9(A)
FURTHER PROVIDES THAT NO NATURAL-GAS COMPANY SUBJECT TO THE
JURISDICTION OF THE COMMISSION SHALL CHARGE TO OPERATING EXPENSES "ANY
DEPRECIATION OR AMORTIZATION CHARGES ON CLASSES OF PROPERTY OTHER THAN
THOSE PRESCRIBED BY THE COMMISSION, OR CHARGE WITH RESPECT TO ANY CLASS
OF PROPERTY A PERCENTAGE OF DEPRECIATION OR AMORTIZATION OTHER THAN
THAT PRESCRIBED THEREFOR BY THE COMMISSION."  THESE ARE SAID, HOWEVER,
TO BE NO MORE THAN ACCOUNTING REQUIREMENTS AND DISTINCT FROM THE FIXING
OF RATES TO BE CHARGED FOR PUBLIC UTILITY OR TRANSPORTATION SERVICES. 
THAT DISTINCTION IS EMPHASIZED, IT IS SAID, BY THE PROVISO IN SEC. 9(A)
THAT "NOTHING IN THIS SECTION SHALL LIMIT THE POWER OF A STATE
COMMISSION TO DETERMINE IN THE EXERCISE OF ITS JURISDICTION, WITH
RESPECT TO ANY NATURAL-GAS COMPANY, THE PERCENTAGE RATES OF
DEPRECIATION OR AMORTIZATION TO BE ALLOWED, AS TO ANY CLASS OF PROPERTY
OF SUCH NATURAL-GAS COMPANY, OR THE COMPOSITE DEPRECIATION OR
AMORTIZATION RATE, FOR THE PURPOSE OF DETERMINING RATES OR CHARGES." 
THE PROVISIONS OF SEC. 10(A) WHICH GIVE THE COMMISSION AUTHORITY TO
REQUIRE REPORTS FROM NATURAL-GAS COMPANIES AS TO THEIR ASSETS AND
LIABILITIES, THE "COST OF MAINTENANCE AND OPERATION OF FACILITIES FOR
THE PRODUCTION" OF NATURAL GAS AND THE LIKE ARE SAID TO BE MERE
INFORMATION REQUIREMENTS QUITE CONSISTENT WITH THE ABSENCE OF POWER TO
REGULATE THE PRODUCTION AND GATHERING OF NATURAL GAS.  FN9  SEE
INTERSTATE COMMERCE COMMISSION V. GOODRICH TRANSIT CO., 224 U.S. 194. 
AND THE AUTHORITY GIVEN THE COMMISSION BY SEC. 14(B) IS SAID MERELY TO
SUPPLEMENT THE COMMISSION'S POWERS UNDER SECTIONS OF THE ACT.  SEC.
14(B) GRANTS THE COMMISSION POWER TO DETERMINE "THE ADEQUACY OR
INADEQUACY OF THE GAS RESERVES HELD OR CONTROLLED BY ANY NATURAL-GAS
COMPANY" AND "THE PROPRIETY AND REASONABLENESS OF THE INCLUSION IN
OPERATING EXPENSES, CAPITAL, OR SURPLUS OF ALL DELAY RENTALS OR OTHER
FORMS OF RENTAL OR COMPENSATION FOR UNOPERATED LANDS AND LEASES."  THIS
IS SAID TO SUPPLEMENT THE COMMISSION'S AUTHORITY OVER THE CONSTRUCTION,
EXTENSION, OR ABANDONMENT OF FACILITIES OR SERVICE UNDER SEC. 7, THE
DETERMINATION OF AMORTIZATION RATES UNDER SEC. 9(A), AND THE ACCOUNTING
REQUIREMENTS OF SEC. 8. 

SUPPORT FOR CANADIAN'S POSITION IS ALSO SOUGHT IN THE LEGISLATIVE
HISTORY OF THE ACT.  IT IS POINTED OUT THAT THE DECLARED PURPOSE OF THE
LEGISLATION WAS TO OCCUPY THE FIELD IN WHICH THIS COURT HAD HELD THE
STATES MIGHT NOT ACT.  SEE FEDERAL POWER COMMISSION V. HOPE NATURAL GAS
CO., 320 U.S. 591, 609-610.  AND IT IS NOTED THAT SENATOR WHEELER, WHO
SPONSORED THE LEGISLATION IN THE SENATE, SAID DURING THE DEBATE IN
ANSWER TO AN INQUIRY WHETHER THE BILL UNDERTOOK TO REGULATE THE
PRODUCTION OF NATURAL GAS OR THE PRODUCERS OF NATURAL GAS:  "IT DOES
NOT ATTEMPT TO REGULATE THE PRODUCERS OF NATURAL GAS OR THE
DISTRIBUTORS OF NATURAL GAS; ONLY THOSE WHO SELL IT WHOLESALE IN
INTERSTATE COMMERCE."  81 CONG. REC. P. 9312. 

FROM THESE VARIOUS MATERIALS IT IS ARGUED THAT THE COMMISSION HAS NO
AUTHORITY TO INCLUDE PRODUCING OR GATHERING FACILITIES IN A RATE BASE
OR TO INCLUDE PRODUCTION OR GATHERING EXPENSES IN OPERATING EXPENSES. 
IT IS SAID THAT WHEN THE COMMISSION FOLLOWS THAT COURSE, IT REGULATES
THE PRODUCTION AND GATHERING OF NATURAL GAS CONTRARY TO THE PROVISIONS
OF SEC. 1(B) OF THE ACT.  IT IS ARGUED THAT THE CORRECT PROCEDURE IS
FOR THE COMMISSION TO ALLOW IN THE OPERATING EXPENSES OF A NATURAL-GAS
COMPANY, WHOSE RATES IT IS EMPOWERED TO FIX, THE "FAIR FIELD PRICE" OR
"FAIR MARKET VALUE, AS A COMMODITY, OF THE GAS" WHICH FINDS ITS WAY
INTO THE TRANSMISSION LINES FOR INTERSTATE TRANSPORTATION AND SALE. 

THIS IS PRECISELY THE ARGUMENT WHICH WEST VIRGINIA, APPEARING AS
AMICUS CURIAE, ADVANCED IN THE HOPE NATURAL GAS CO. CASE.  WE REJECTED
THE ARGUMENT IN THAT CASE.  320 U.S. PP. 607-615, PARTICULARLY P. 614,
N. 25.  WE HAVE REVIEWED IT HERE AT THIS LENGTH IN VIEW OF THE
SERIOUSNESS WITH WHICH IT HAS BEEN URGED NOT ONLY BY CANADIAN BUT ALSO
BY THE INDEPENDENT NATURAL GAS ASSOCIATION OF AMERICA WHICH APPEARED
AMICUS CURIAE.  BUT WE ADHERE TO OUR DECISION IN THE HOPE NATURAL GAS
CO. CASE AND WILL BRIEFLY STATE OUR REASONS. 

A NATURAL-GAS COMPANY AS DEFINED IN SEC. 2(6) OF THE ACT IS "A PERSON
ENGAGED IN THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE, OR
THE SALE IN INTERSTATE COMMERCE OF SUCH GAS FOR RESALE."  CANADIAN IS
SUCH A COMPANY.  IT IS PLAIN THEREFORE THAT THE COMMISSION HAS
AUTHORITY TO FIX ITS INTERSTATE WHOLESALE RATES.  SEC. 5.  IT IS
OBVIOUS THAT WHEN RATES OF A UTILITY ARE FIXED THE VALUE OF ITS
PROPERTY IS AFFECTED.  FOR AS WE STATED IN THE HOPE NATURAL GAS CO.
CASE, VALUE IS "THE END PRODUCT OF THE PROCESS OF RATE-MAKING NOT THE
STARTING POINT."  320 U.S. P. 601.  WHEN A NATURAL-GAS COMPANY WHICH
OWNS PRODUCING PROPERTIES OR A GATHERING SYSTEM IS RESTRICTED IN ITS
EARNINGS BY A RATE ORDER, THE VALUE OF ALL OF ITS PROPERTY IS
AFFECTED.  CONGRESS OF COURSE MIGHT HAVE PROVIDED THAT PRODUCING OR
GATHERING FACILITIES BE EXCLUDED FROM THE RATE BASE AND THAT AN
ALLOWANCE BE MADE IN OPERATING EXPENSES FOR THE FAIR FIELD PRICE OF THE
GAS AS A COMMODITY.  SOME HAVE THOUGHT THAT TO BE THE WISER COURSE. 
BUT WE SEARCH THE ACT IN VAIN FOR ANY SUCH MANDATE.  THE COMMITTEE
REPORT STATED THAT THE ACT PROVIDED "FOR REGULATION ALONG RECOGNIZED
AND MORE OR LESS STANDARDIZED LINES" AND THAT THERE WAS "NOTHING NOVEL
IN ITS PROVISIONS."  H. REP. NO. 709, 75TH CONG., 1ST SESS., P. 3. 
CERTAINLY THE USE OF A RATE BASE WHICH REFLECTS THE PROPERTY OF THE
UTILITY WHOSE RATES ARE BEING FIXED HAS BEEN CUSTOMARY.  2 BONBRIGHT,
VALUATION OF PROPERTY (1937) CH. XXX; SMITH, THE CONTROL OF POWER RATES
IN THE UNITED STATES AND ENGLAND (1932), 159 ANNALS 101.  PRIOR TO THE
ACT THAT METHOD WAS EMPLOYED IN THE FIXING OF THE RATES OF GAS, AS WELL
AS ELECTRIC, UTILITIES.  SEE WILLCOX V. CONSOLIDATED GAS CO., 212 U.S.
19; CEDAR RAPIDS GAS CO. V. CEDAR RAPIDS, 223 U.S. 655; NEWARK NATURAL
GAS & FUEL CO. V. NEWARK, 242 U.S. 405; RAILROAD COMMISSION V. PACIFIC
GAS & ELECTRIC CO., 302 U.S. 388; LONE STAR GAS CO. V. TEXAS, 304 U.S.
224.  WE DO NOT SAY THAT THE COMMISSION LACKS THE AUTHORITY TO DEPART
FROM THE RATE-BASE METHOD.  WE ONLY HOLD THAT THE COMMISSION IS NOT
PRECLUDED FROM USING IT.  THERE ARE AMPLE INDICATIONS THROUGHOUT THE
ACT TO SUPPORT THAT VIEW.  SEC. 6(A) EMPOWERS THE COMMISSION TO
INVESTIGATE AND ASCERTAIN THE "ACTUAL LEGITIMATE COST OF THE PROPERTY
OF EVERY NATURAL-GAS COMPANY, THE DEPRECIATION THEREIN, AND, WHEN FOUND
NECESSARY FOR RATE-MAKING PURPOSES, OTHER FACTS WHICH BEAR ON THE
DETERMINATION OF SUCH COST OR DEPRECIATION AND THE FAIR VALUE OF SUCH
PROPERTY."  AS WE HAVE NOTED, SEC. 9(A) GIVES THE COMMISSION AUTHORITY
NOT ONLY TO REQUIRE NATURAL GAS COMPANIES TO CARRY PROPER AND ADEQUATE
DEPRECIATION AND AMORTIZATION ACCOUNTS BUT ALSO TO FIX SUCH RATES FOR
"THE SEVERAL CLASSES OF PROPERTY OF EACH NATURAL-GAS COMPANY USED OR
USEFUL IN THE PRODUCTION, TRANSPORTATION, OR SALE OF NATURAL GAS."  AND
SEC. 14(B), AS ALREADY STATED, NOT ONLY GIVES THE COMMISSION AUTHORITY
TO DETERMINE THE ADEQUACY OR INADEQUACY OF GAS RESERVES OF A NATURAL
GAS COMPANY BUT ALSO EMPOWERS IT TO DETERMINE THE "PROPRIETY AND
REASONABLENESS OF THE INCLUSION IN OPERATING EXPENSES, CAPITAL, OR
SURPLUS OF ALL DELAY RENTALS OR OTHER FORMS OF RENTAL OR COMPENSATION
FOR UNOPERATED LANDS AND LEASES."  SEC. 9(A) AND SEC. 14(B), THOUGH
DESIGNED NOT TO LIMIT THE POWER OF STATE REGULATORY AGENCIES, PLAINLY
WERE DESIGNED TO AID THE COMMISSION IN ITS RATE-MAKING FUNCTIONS. 
THESE PROVISIONS N10 ALL SUGGEST THAT WHEN CONGRESS DESIGNED THIS ACT
IT WAS THINKING IN TERMS OF THE INGREDIENTS OF A RATE BASE, THE
DEDUCTIONS WHICH MIGHT BE MADE, AND THE ADDITIONS WHICH WERE
CONTEMPLATED.  NO EXCLUSION OF PROPERTY USED OR USEFUL IN PRODUCTION OF
NATURAL GAS WAS MADE.  THAT TYPE OF PROPERTY WAS NOT SINGLED OUT FOR
SPECIAL TREATMENT; IT WAS TREATED THE SAME AS ALL OTHER PROPERTY.  WE
MUST READ SEC. 1(B) IN THE CONTEXT OF THE WHOLE ACT.  IT MUST BE
RECONCILED WITH THE EXPLICIT PROVISIONS WHICH DESCRIBE THE NORMAL
CONVENTIONS OF RATE-MAKING. 

THAT DOES NOT MEAN THAT THE PART OF SEC. 1(B) WHICH PROVIDES THAT THE
ACT SHALL NOT APPLY "TO THE PRODUCTION OR GATHERING OF NATURAL GAS" IS
GIVEN NO MEANING.  CERTAINLY THAT PROVISION PRECLUDES THE COMMISSION
FROM ANY CONTROL OVER THE ACTIVITY OF PRODUCING OR GATHERING NATURAL
GAS.  FOR EXAMPLE, IT MAKES PLAIN THAT THE COMMISSION HAS NO CONTROL
OVER THE DRILLING AND SPACING OF WELLS AND THE LIKE.  IT MAY PUT OTHER
LIMITATIONS ON THE COMMISSION.  WE ONLY DECIDE THAT IT DOES NOT
PRECLUDE THE COMMISSION FROM REFLECTING THE PRODUCTION AND GATHERING
FACILITIES OF A NATURAL GAS COMPANY IN THE RATE BASE AND DETERMINING
THE EXPENSES INCIDENT THERETO FOR THE PURPOSES OF DETERMINING THE
REASONABLENESS OF RATES SUBJECT TO ITS JURISDICTION. 

THAT TREATMENT OF PRODUCING PROPERTIES AND GATHERING FACILITIES HAS
OF COURSE AN INDIRECT EFFECT ON THEM.  AS WE HAVE SAID, RATE-MAKING
LIKE OTHER FORMS OF PRICE FIXING MAY REDUCE THE VALUE OF THE PROPERTY
WHICH IS BEING REGULATED.  FEDERAL POWER COMMISSION V. HOPE NATURAL GAS
CO., SUPRA, P. 601.  BUT THAT WOULD BE TRUE WHETHER OR NOT A RATE BASE
WAS USED.  CANADIAN WOULD BE THE FIRST TO OBJECT IF THE GAS WHICH IT
OWNS WAS GIVEN NO VALUATION IN THESE PROCEEDINGS.  OBVIOUSLY IT HAS
VALUE.  THE ACT DOES NOT SAY THAT THE COMMISSION WOULD HAVE TO VALUE IT
AT THE FAIR FIELD PRICE IF THE COMMISSION ABANDONED THE RATE-BASE
METHOD OF REGULATION.  WE HELD IN THE HOPE NATURAL GAS CO. CASE THAT
UNDER THE ACT IT IS "THE RESULT REACHED NOT THE METHOD EMPLOYED WHICH
IS CONTROLLING....  IT IS NOT THEORY BUT THE IMPACT OF THE RATE ORDER
WHICH COUNTS.  IF THE TOTAL EFFECT OF THE RATE ORDER CANNOT BE SAID TO
BE UNJUST AND UNREASONABLE, JUDICIAL INQUIRY UNDER THE ACT IS AT AN
END."  320 U.S. P. 602.  IF THE COMMISSION FOLLOWED CANADIAN'S METHOD,
EXCLUDED THE PRODUCING PROPERTIES AND GATHERING FACILITIES FROM THE
RATE BASE, VALUED THE GAS AT A PRICE WHICH WOULD REDUCE THE EARNINGS TO
THE LEVEL OF THE PRESENT ORDER, THE EFFECT ON THE PRODUCING PROPERTIES
AND GATHERING FACILITIES WOULD BE PRECISELY THE SAME AS IN THE PRESENT
CASE.  SINCE THERE IS NO PROVISION IN THE ACT WHICH WOULD REQUIRE THE
COMMISSION TO VALUE THE GAS AT THE PRICE URGED BY CANADIAN, THE PROBLEM
ON REVIEW WOULD BE WHETHER THE END RESULT WAS UNJUST AND UNREASONABLE. 
THE POINT IS THAT WHATEVER METHOD FOR RATE-MAKING IS TAKEN THE FIXING
OF RATES AFFECTS THE VALUE OF THE UNDERLYING PROPERTY.  HENCE SEC. 1(B)
COULD BE READ AS PETITIONERS READ IT ONLY IF CONGRESS HAD PUT A FLOOR
UNDER PRODUCING PROPERTIES AND GATHERING FACILITIES AND FIXED A MINIMUM
RETURN ON THEM. 

THESE CONSIDERATIONS LEAD US TO CONCLUDE THAT SEC. 1(B) DOES NOT
PREVENT THE COMMISSION FROM TAKING INTO ACCOUNT THE PRODUCTION
PROPERTIES AND GATHERING FACILITIES OF NATURAL GAS COMPANIES WHEN IT
FIXES THEIR RATES. 

ORIGINAL COST OF PRODUCTION AND GATHERING FACILITIES.  THE COMMISSION
FOUND THE ACTUAL LEGITIMATE COST OF CANADIAN'S PROPERTY, INCLUDING ITS
PRODUCING PROPERTIES AND GATHERING FACILITIES, TO BE $10,784,464 AS OF
DECEMBER 31, 1939.  IT DEDUCTED $2,134,629 FOR ACCRUED DEPRECIATION AND
DEPLETION.  IT ADDED $150,738 FOR WORKING CAPITAL AND $571,923 FOR
GROSS PLANT ADDITIONS TO DECEMBER 31, 1941.  THE RESULT WAS A RATE BASE
OF $9,372,496 WHICH THE COMMISSION ROUNDED TO $9,375,000.  THE
COMMISSION REJECTED ESTIMATES OF REPRODUCTION COST NEW LESS OBSERVED
DEPRECIATION BECAUSE THEY WERE "TOO CONJECTURAL TO HAVE PROBATIVE
VALUE" AND ADOPTED ORIGINAL COST AS "THE BEST AND ONLY RELIABLE
EVIDENCE AS TO PROPERTY VALUES."  43 P.U.R. (N.S.)  PP. 213, 214. 
CANADIAN MAINTAINS THAT IF ITS LEASEHOLDS ARE TO BE INCLUDED IN THE
RATE BASE, IT WAS IMPROPER TO VALUE THEM AS THE COMMISSION DID. 
CANADIAN OFFERED EVIDENCE THAT THEIR PRESENT MARKET VALUE WAS MUCH
HIGHER.  IT ALSO OFFERED EVIDENCE OF A COMMODITY MARKET VALUE OF
NATURAL GAS PER MCF WHICH WOULD GIVE A MUCH HIGHER VALUE TO THE
PRODUCTION PHASE OF CANADIAN'S BUSINESS.  WE DO NOT STOP TO DEVELOP THE
DETAILS OF THESE LINES OF EVIDENCE.  WE CANNOT SAY THAT THE COMMISSION
WAS UNDER A DUTY TO PUT THE LEASEHOLDS INTO THE RATE BASE AT THE
VALUATION URGED BY CANADIAN UNLESS WE REVISE WHAT WE SAID IN FEDERAL
POWER COMMISSION V. NATURAL GAS PIPELINE CO., 315 U.S. 575, 586, AND
OVERRULE FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO., SUPRA.  WE
HELD IN THOSE CASES THAT THE COMMISSION WAS NOT BOUND TO THE USE OF ANY
SINGLE FORMULA IN DETERMINING RATES.  AND IN THE HOPE NATURAL GAS CO.
CASE WE SUSTAINED A RATE ORDER BASED ON ACTUAL LEGITIMATE COST AGAINST
AN INSISTENT CLAIM THAT THE PRODUCING PROPERTIES SHOULD BE GIVEN A
VALUATION WHICH REFLECTED THE MARKET PRICE OF THE GAS.  IN THOSE CASES
WE HELD THAT THE QUESTION FOR THE COURTS WHEN A RATE ORDER IS
CHALLENGED IS WHETHER THE ORDER VIEWED IN ITS ENTIRETY AND MEASURED BY
ITS END RESULTS MEETS THE REQUIREMENTS OF THE ACT.  THAT IS NOT A
STANDARD SO VAGUE AND DEVOID OF MEANING AS TO RENDER JUDICIAL REVIEW A
PERFUNCTORY PROCESS.  IT IS A STANDARD OF FINANCE RESTING ON STUBBORN
FACTS.  FN11  "FROM THE INVESTOR OR COMPANY POINT OF VIEW IT IS
IMPORTANT THAT THERE BE ENOUGH REVENUE NOT ONLY FOR OPERATING EXPENSES
BUT ALSO FOR THE CAPITAL COSTS OF THE BUSINESS.  THESE INCLUDE SERVICE
ON THE DEBT AND DIVIDENDS ON THE STOCK.  CF. CHICAGO & GRAND TRUNK R.
CO. V. WELLMAN, 143 U.S. 339, 345-346.  BY THAT STANDARD THE RETURN TO
THE EQUITY OWNER SHOULD BE COMMENSURATE WITH RETURNS ON INVESTMENTS IN
OTHER ENTERPRISES HAVING CORRESPONDING RISKS.  THAT RETURN, MOREOVER,
SHOULD BE SUFFICIENT TO ASSURE CONFIDENCE IN THE FINANCIAL INTEGRITY OF
THE ENTERPRISE, SO AS TO MAINTAIN ITS CREDIT AND TO ATTRACT CAPITAL. 
SEE MISSOURI EX REL. SOUTHWESTERN BELL TEL. CO. V. PUBLIC SERVICE
COMMISSION, 262 U.S. 276, 291(MR. JUSTICE BRANDEIS CONCURRING)." 
FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO., SUPRA, P. 603. 

HENCE, WE CANNOT SAY AS A MATTER OF LAW THAT THE COMMISSION ERRED IN
INCLUDING THE PRODUCTION PROPERTIES IN THE RATE BASE AT ACTUAL
LEGITIMATE COST.  THAT COULD BE DETERMINED ONLY ON CONSIDERATION OF THE
END RESULT OF THE RATE ORDER, A QUESTION NOT HERE UNDER THE LIMITED
REVIEW GRANTED THE CASE. 

COST TO CANADIAN'S AFFILIATE.  AS WE HAVE SEEN, CANADIAN AND COLORADO
INTERSTATE HAD THEIR ORIGIN IN AN AGREEMENT MADE IN 1927 BETWEEN
SOUTHWESTERN, STANDARD, AND CITIES SERVICE.  PURSUANT TO THAT AGREEMENT
SOUTHWESTERN ORGANIZED CANADIAN, A WHOLLY OWNED SUBSIDIARY, TO WHICH
WERE TRANSFERRED THE GAS LEASEHOLDS AND PRODUCING PROPERTY OWNED BY
AMARILLO, A WHOLLY OWNED SUBSIDIARY OF SOUTHWESTERN.  THE CASH
CONSIDERATION FOR THIS TRANSFER WAS $5,000,000, WHICH WAS ADVANCED BY
STANDARD AT 6 PER CENT INTEREST.  COLORADO INTERSTATE WAS ORGANIZED BY
STANDARD TO CONSTRUCT AND OPERATE THE PIPELINE TO CONNECT WITH
CANADIAN'S FACILITIES AND TO TRANSPORT THE GAS TO THE DENVER MARKET AND
INTERMEDIATE POINTS. 

CANADIAN ISSUED $11,000,000 OF 6% TWENTY-YEAR BONDS TO FINANCE ITS
PORTION OF THE TOTAL PROJECT.  COLORADO INTERSTATE PURCHASED THOSE
BONDS WITH PART OF THE PROCEEDS OF $19,200,000 OF ITS OWN 6% TWENTY
YEAR SINKING FUND BONDS WHICH STANDARD HAD PURCHASED AT PAR. CANADIAN
REPAID THE $5,000,000 ADVANCE MADE BY STANDARD OUT OF THE PROCEEDS OF
THE SALE OF ITS BONDS TO COLORADO INTERSTATE.  CANADIAN'S STOCK WAS
ISSUED TO SOUTHWESTERN AND IS CARRIED ON CANADIAN'S BOOKS AT $1.00. 
CANADIAN ENTERED INTO A "COST" CONTRACT WITH COLORADO INTERSTATE
WHEREBY CANADIAN AGREED TO PRODUCE AND SELL GAS TO COLORADO INTERSTATE
AT "COST" FOR TWENTY YEARS WHICH MIGHT BE EXTENDED BY COLORADO
INTERSTATE.  UNDER THE CONTRACT, "COST" INCLUDED CANADIAN'S OPERATING
EXPENSES, INTEREST AT 6%, AND AMORTIZATION (IN LIEU OF DEPRECIATION,
DEPLETION AND RETIREMENTS) OF ALL OF CANADIAN'S INDEBTEDNESS OVER THE
TWENTY-YEAR PERIOD.  IT WAS ALSO PROVIDED THAT CANADIAN'S "COST" UNDER
THE CONTRACT SHOULD BE DECREASED BY ANY PROFITS WHICH IT MIGHT OBTAIN
FROM OTHER SOURCES INCLUDING ANY LOCAL SALES.  THUS IT WAS OBVIOUS THAT
CANADIAN UNDER THIS "COST" CONTRACT WOULD HAVE NO PROFITS AVAILABLE FOR
DIVIDENDS ON ITS STOCK. 

BUT IN ACCORDANCE WITH THE AGREEMENT COLORADO INTERSTATE ISSUED
$2,000,000 PAR VALUE 6% PREFERRED STOCK AND 1,250,000 SHARES OF NO PAR
COMMON.  CITIES SERVICE RECEIVED 15% OF THE COMMON STOCK.  THE REST OF
THE COMMON STOCK AND ALL OF THE PREFERRED WAS DIVIDED EQUALLY BETWEEN
SOUTHWESTERN AND STANDARD.  THE LATTER PAID $2,000,000 IN CASH FOR ITS
SHARE OF PREFERRED AND COMMON.  SOUTHWESTERN RECEIVED NOT ONLY
PREFERRED AND COMMON STOCK, BUT ALSO $5,000,000 IN CASH FROM THE
PROCEEDS OF THE $11,000,000 OF BONDS WHICH CANADIAN ISSUED AND WHICH
WERE TO BE AMORTIZED OVER TWENTY YEARS AS PART OF THE "COST" OF GAS
SOLD TO COLORADO INTERSTATE BY CANADIAN. 

CANADIAN CONTENDS THAT THE COMMISSION SHOULD HAVE INCLUDED $5,000,000
IN THE RATE BASE FOR THE GAS LEASES AND PRODUCING PROPERTIES ACQUIRED
FROM AMARILLO.  THE ORIGINAL COST OF THE PROPERTIES TO AMARILLO WAS
$1,879,504.  THAT IS ALL THE COMMISSION ALLOWED.  IT SAID, "ANY
TREATMENT WHICH WOULD PERMIT THE CAPITALIZATION OF SUCH AMOUNTS WOULD
OPEN THE DOOR TO THE RENEWAL OF PAST PRACTICES OF THE UTILITY INDUSTRY
WHEN PROPERTIES WERE TRADED BETWEEN AFFILIATED INTERESTS AT INFLATED
PRICES WITH THE EXPECTATION THAT THE PUBLIC WOULD FOOT THE BILL."  43
P.U.R. (N.S.)  P. 215.  WE AGREE.  SOUTHWESTERN OWNED THE PRODUCING
PROPERTIES AT THE BEGINNING OF THE TRANSACTION THROUGH ONE SUBSIDIARY;
IT OWNED THEM AT THE END OF THE TRANSACTION THROUGH ANOTHER
SUBSIDIARY.  AS BETWEEN SOUTHWESTERN AND ITS SUBSIDIARIES THERE WAS NO
MORE THAN AN INTERCOMPANY PROFIT.  IF AMARILLO RATHER THAN CANADIAN HAD
ENTERED THE PROJECT, HAD SOLD A BOND ISSUE TO SOUTHWESTERN AND WITH
PART OF THE PROCEEDS PAID OFF A $5,000,000 LOAN TO STANDARD, CERTAINLY
THE AMOUNT OF THAT PAYMENT WOULD NOT BE PROPERLY INCLUDED IN ITS RATE
BASE.  WE FAIL TO SEE A DIFFERENCE IN SUBSTANCE WHEN ANOTHER WHOLLY
OWNED SUBSIDIARY IS UTILIZED BY SOUTHWESTERN.  THE FACT THAT THE
NEGOTIATIONS BETWEEN SOUTHWESTERN AND STANDARD WERE AT ARM'S LENGTH HAS
NO BEARING ON THE PRESENT PROBLEM.  THE END RESULT IS THAT PROPERTY HAS
BEEN TRANSFERRED AT A WRITE-UP FROM ONE OF SOUTHWESTERN'S POCKETS TO
ANOTHER.  THE IMPACT ON CONSUMERS OF UTILITY SERVICE OF WRITE-UPS AND
INFLATION OF CAPITAL ASSETS THROUGH INTERCOMPANY TRANSACTIONS OR
OTHERWISE IS OBVIOUS.  THE PREVALENCE OF THE PRACTICE IN THE HOLDING
COMPANY FIELD GAVE RISE TO AN INSISTENT DEMAND FOR FEDERAL REGULATION. 
SEE S. DOC. NO. 92, PT. 84-A, 70TH CONG., 1ST SESS., UTILITY
CORPORATIONS, FINAL REPORT OF THE FEDERAL TRADE COMMISSION (1936);
BONBRIGHT & MEANS, THE HOLDING COMPANY (1932), CH. VI; BARNES, THE
ECONOMICS OF PUBLIC UTILITY REGULATION (1942) PP. 95 ET SEQ. 

AMERICAN T. & T. CO. V. UNITED STATES, 299 U.S. 232, IS NOT OPPOSED
TO OUR POSITION.  IT MERELY INDICATES A PROPER TREATMENT FOR AN
INTERCOMPANY TRANSACTION WHERE IN FACT AN ADDITIONAL INVESTMENT IS
SHOWN TO EXIST.  AFFIRMED. 

FN1  THE LATTER RESALES ARE MADE BY COLORADO-WYOMING GAS CO. WHICH
TRANSPORTS THE GAS FROM A POINT NEAR LITTLETON, COLORADO TO CHEYENNE,
WYOMING.  THE PROCEEDINGS AGAINST THIS COMPANY WERE CONSOLIDATED WITH
THOSE AGAINST CANADIAN AND COLORADO INTERSTATE.  THE COMMISSION ALSO
ORDERED A REDUCTION IN THE RATES CHARGED BY COLORADO-WYOMING GAS CO.
THAT ORDER IS HERE FOR REVIEW ON CERTAIN POINTS IN NO. 575, POST, P.
626. 

FN2  THE COMMISSION IN ITS REPORT CHARACTERIZED VOLUMETRIC COSTS AS
VARIABLE COSTS AND CAPACITY COSTS AS FIXED COSTS.  43 P.U.R. (N.S.)  P.
232. 

FN3  A RESIDUAL REFINING CREDIT WAS DETERMINED AND DEDUCTED FROM
PRODUCTION COSTS. 

FN4  FIFTEEN TIMES IN SOME 12 YEARS. 

FN5  SO FAR AS APPEARS CANADIAN PRESENTED NO EVIDENCE SHOWING THE
COST OF THESE INTRASTATE SALES. 

FN6  AS WE HAVE SAID, THE RETURN ON LEASES AND WELLS WAS TREATED AS
VOLUMETRIC COSTS; 50 PER CENT OF THE RETURN ON THE DENVER PIPELINE WAS
TREATED AS VOLUMETRIC AND 50 PER CENT AS CAPACITY COSTS; AND RETURN ON
INVESTMENT IN METERING AND REGULATING EQUIPMENT WAS TREATED AS
DISTRIBUTION COSTS. 

FN7 AS RESPECTS THE ACCOUNTING FOR THE COST OF MONEY INVESTED IN THE
ENTERPRISE SEE SCHLATTER, ADVANCED COST ACCOUNTING (1939), CH. XII;
NEUNER, COST ACCOUNTING (1942), P. 277; LAWRENCE, COST ACCOUNTING
(1930), CH. 22. 

FN8  IT IS OBJECTED THAT THE ALLOCATION MADE BY THE COMMISSION
RESULTS IN DISCRIMINATION BETWEEN PURCHASERS OF GAS FROM COLORADO
INTERSTATE AS INDICATED BY THE FACT THAT COSTS ALLOCATED TO ONE
CUSTOMER WHO IS DISTANT FROM DENVER ARE GREATER THAN COSTS ALLOCATED TO
ANOTHER CUSTOMER AT DENVER.  BUT ALL THE COMMISSION DID WAS TO ORDER AN
AGGREGATE REDUCTION IN THE WHOLESALE RATES OF $2,065,000 SO AS TO
PRODUCE A FAIR RETURN.  THE ADJUSTMENT OF THE RATE SCHEDULES FOR
VARIOUS DELIVERY POINTS HAS NOT YET BEEN MADE.  SEE FEDERAL POWER
COMMISSION V. NATURAL GAS PIPELINE CO., 315 U.S. 575, 584. 

FN9  ANOTHER SECTION OF THE ACT WHICH REFERS TO "PRODUCTION" IS SEC.
11(A).  IT GIVES THE COMMISSION CERTAIN FUNCTIONS TO PERFORM WHERE TWO
OR MORE STATES PROPOSE COMPACTS DEALING WITH THE CONSERVATION,
PRODUCTION, TRANSPORTATION, OR DISTRIBUTION OF NATURAL GAS. 

FN10  SECS. 5(B), 6(A), 9(A), 10(A), AND 14(B). 

FN11  CF. THE BRITISH STANDARDS DESCRIBED IN SMITH, THE CONTROL OF
POWER RATES IN THE UNITED STATES AND ENGLAND, 159 ANNALS 101, 103,
104. 

MR. JUSTICE ROBERTS AND MR. JUSTICE REED DISSENT FROM SO MUCH OF THE
OPINION AS APPROVES THE ALLOCATION BY THE COMMISSION OF INVESTMENTS AND
EXPENSES TO THE NON-REGULABLE TRANSMISSION PROPERTIES.  THEY CONCUR IN
THE DISSENT OF THE CHIEF JUSTICE IN CANADIAN RIVER GAS CO. V. FEDERAL
POWER COMMISSION, POST, P. 615. 

MR. JUSTICE JACKSON, CONCURRING. 

I CONCUR IN UPHOLDING ORDERS OF THE FEDERAL POWER COMMISSION IN THIS
AND COMPANION CASES.  THE COURT CANNOT, CONSISTENTLY WITH FEDERAL POWER
COMMISSION V. HOPE NATURAL GAS CO., 320 U.S. 591, DO OTHERWISE. 

THE OPINION IN THE HOPE CASE LAID DOWN FUNDAMENTAL PRINCIPLES OF
DECISION IN THIS LANGUAGE: "UNDER THE STATUTORY STANDARD OF 'JUST AND
REASONABLE' IT IS THE RESULT REACHED NOT THE METHOD EMPLOYED WHICH IS
CONTROLLING.  IT IS NOT THEORY BUT THE IMPACT OF THE RATE ORDER WHICH
COUNTS.  IF THE TOTAL EFFECT OF THE RATE ORDER CANNOT BE SAID TO BE
UNJUST AND UNREASONABLE, JUDICIAL INQUIRY UNDER THE ACT IS AT AN END. 
THE FACT THAT THE METHOD EMPLOYED TO REACH THAT RESULT MAY CONTAIN
INFIRMITIES IS NOT THEN IMPORTANT."  FEDERAL POWER COMMISSION V. HOPE
NATURAL GAS CO., SUPRA, 602.  THIS CASE INTRODUCED INTO JUDICIAL REVIEW
OF ADMINISTRATIVE ACTION THE PHILOSOPHY THAT THE END JUSTIFIES THE
MEANS.  I HAD BEEN TAUGHT TO REGARD THAT AS A QUESTIONABLE PHILOSOPHY,
SO I DISSENTED AND STILL ADHERE TO THE DISSENT.  BUT IT IS THE LAW OF
THIS COURT, AND I DO NOT UNDERSTAND THAT ANY MAJORITY IS READY TO
RECONSIDER IT. 

IT IS TRUE THAT THE ACT EXCLUDES "PRODUCTION OR GATHERING OF NATURAL
GAS" FROM JURISDICTION OF THE COMMISSION.  IF THE COMMISSION HAD
IMPOSED ANY DIRECT REGULATION UPON THAT ACTIVITY, I WOULD JOIN IN
HOLDING IT TO HAVE EXCEEDED ITS JURISDICTION.  BUT THE ORDERS IN
QUESTION HAVE NO IMMEDIATE "IMPACT" UPON PRODUCTION OR GATHERING OF
GAS. 

THE STATUTE COMMANDS THE COMMISSION TO REGULATE THE PRICE OF NATURAL
GAS TRANSPORTED AND SOLD AT WHOLESALE IN INTERSTATE COMMERCE FOR
RESALE.  THE COMMISSION HAS INVESTIGATED THE FISCAL ASPECTS OF
PRODUCTION AND GATHERING BECAUSE OF THEIR BEARING ON THE REASONABLENESS
OF INTERSTATE RATES.  I SUPPOSE A COMMISSION IS FREE TO TAKE EVIDENCE
AS TO CONDITIONS AND EVENTS QUITE BEYOND ITS REGULATORY JURISDICTION
WHERE THEY ARE THOUGHT TO AFFECT THE COST OF THAT WHOSE PRICE IT IS
DIRECTED TO DETERMINE.  THIS, AS I SEE IT, IS ALL THAT HAS BEEN DONE
HERE. 

OF COURSE THE COMMISSION'S ORDER, WHOSE PRIMARY IMPACT IS ON RATES IN
THE INTERSTATE MARKETS, HAS A VERY IMPORTANT SECONDARY EFFECT ON
PRODUCTION AND ON PRODUCERS OF GAS.  AS THE INDUSTRY IS ORGANIZED THE
COMMISSION COULD NOT FIX AN INTERSTATE PRICE THAT WOULD NOT HAVE SOME
SUCH REACTION.  INDEED, I THINK THE COMMISSION CANNOT WISELY FIX A
REASONABLE PRICE WITHOUT CONSIDERING ITS INCIDENTAL EFFECT ON
PRODUCTION. 

TO LET RATE-BASE FIGURES, COMPILED ON ANY OF THE CONVENTIONAL
THEORIES OF RATE-MAKING, GOVERN A RATE FOR NATURAL GAS SEEMS TO ME
LITTLE BETTER THAN TO DRAW FIGURES OUT OF A HAT.  THESE CASES CONFIRM
AND STRENGTHEN ME IN THE VIEW I STATED IN THE HOPE CASE THAT THE ENTIRE
RATE-BASE METHOD SHOULD BE REJECTED IN PRICING NATURAL GAS, THOUGH IT
MIGHT BE USED TO DETERMINE TRANSPORTATION COSTS.  THESE CASES VIVIDLY
DEMONSTRATE THE DELIRIOUS RESULTS PRODUCED BY THE RATE-BASE METHOD. 
THESE ORDERS IN SOME INSTANCES RESULT IN THREE DIFFERENT PRICES FOR GAS
FROM THE SAME WELL.  THE REGULATED COMPANY IS A PART OWNER, AN
UNREGULATED COMPANY IS A PART OWNER, AND THE LAND OWNER HAS A ROYALTY
SHARE OF THE PRODUCTION FROM CERTAIN WELLS.  THE REGULATED COMPANY BUYS
ALL OF THE GAS FOR ITS INTERSTATE BUSINESS.  IT IS ALLOWED TO PAY AS
OPERATING EXPENSES AN UNREGULATED CONTRACT PRICE FOR ITS CO-OWNER'S
SHARE AND A DIFFERENT UNREGULATED CONTRACT PRICE FOR THE ROYALTY
OWNER'S SHARE, BUT FOR ITS OWN SHARE IT IS ALLOWED SUBSTANTIALLY LESS
THAN EITHER.  ANY METHOD OF RATE-MAKING BY WHICH AN IDENTICAL PRODUCT
FROM A SINGLE WELL, GOING TO THE SAME CONSUMERS, HAS THREE PRICES
DEPENDING ON WHO OWNS IT DOES NOT MAKE SENSE TO ME. 

THESE CASES FURNISH ANOTHER EXAMPLE OF THE CAPRICIOUS RESULTS OF THE
RATE-BASE METHOD IN THIS KIND OF CASE.  THE COMMISSION HAS PUT FIVE OF
THE MOST IMPORTANT LEASEHOLDS, CONTAINING APPROXIMATELY 47,000 ACRES,
IN THE RATE BASE AT $4,244.24, SOMETHING UNDER 10 CENTS PER ACRE. 
THREE SUCH LEASES ARE PUT IN THE RATE BASE AT ZERO.  THIS IS BECAUSE
ORIGINAL COST WAS USED, AND THESE WERE BOUGHT BEFORE DISCOVERY OF GAS
THEREON.  THE COMPANY WHICH TOOK THE HIGH RISK OF WILDCAT EXPLORATION
IS THUS ALLOWED A RETURN OF 6 1/2 PER CENT ON NOTHING FOR THE THREE
LEASES AND A RETURN OF LESS THAN $300 A YEAR ON THE OTHERS.  THEIR
PRESENT MARKET VALUE IS SHOWN BY TESTIMONY TO BE OVER 3 MILLION
DOLLARS. 

I CANNOT FAIRLY SAY THAT THE COMMISSION EXCEEDED ITS JURISDICTION IN
OBTAINING THIS EVIDENCE AND MAKING THESE CALCULATIONS, EVEN THOUGH THE
EVIDENCE RELATED TO PRODUCTION AND GATHERING OF GAS.  BUT I DO THINK IT
IS A FANTASTIC METHOD OF FIXING A "JUST AND REASONABLE" PRICE FOR GAS. 
FN1  ALL OF THAT, HOWEVER, WAS THRASHED OUT IN THE HOPE CASE.    I DO
NOT RECEDE FROM THE VIEWS THEREIN STATED THAT HOPE PROVIDES NO WORKABLE
BASIS OF JUDICIAL REVIEW, NO KEY BY WHICH COMMISSIONS CAN ANTICIPATE
WHAT RULE, IF ANY, WILL CONTROL OUR REVIEW, AND NO GUIDANCE TO COUNSEL
AS TO WHAT ISSUES THEY SHOULD TRY OR HOW THEY SHOULD TRY THEM.  I
THINK, HOWEVER, THAT THE MAJORITY WHICH PROMULGATED THAT DECISION, OR A
MAJORITY OF THAT MAJORITY, SHOULD BE PERMITTED TO CONTINUE TO SPELL OUT
ITS APPLICATION TO SPECIFIC PROBLEMS UNTIL WE SEE WHERE IT LEADS. 

IT IS DIFFICULT FOR ME IN THESE CASES, AND IN SOME IT MIGHT BE
IMPOSSIBLE, TO FOLLOW THE RULE OF HOPE IN REACHING A DECISION.  I HAVE
NO INTUITIVE KNOWLEDGE AS TO WHETHER A GIVEN PRICE IS REASONABLE, AND
MY FUNDAMENTAL CONCEPT OF REASONABLE PRICE IN THIS INDUSTRY AND HOW TO
FIND IT HAS BEEN REJECTED BY THE COURT.  BUT IT HAPPENS THAT THIS CASE
ILLUSTRATES SOME ASPECTS OF THE PROBLEM OF PRICING GAS, AS WILL APPEAR
FROM THE REASONS I SHALL STATE FOR THE FAILURE OF THE COMPANY IN THIS
CASE TO CONVINCE ME THAT IT IS WRONGED BY THE REDUCTION OF PRICES
ORDERED BY THE COMMISSION. 

FAR-SIGHTED GAS-RATE REGULATION WILL CONCERN ITSELF WITH THE PRESENT
AND FUTURE, RATHER THAN WITH THE PAST, AS THE RATE-BASE FORMULA DOES. 
IT WILL TAKE ACCOUNT OF CONDITIONS AND TRENDS AT THE SOURCE OF THE
SUPPLY BEING REGULATED.  IT WILL USE PRICE AS A TOOL TO BRING GOODS TO
MARKET - TO OBTAIN FOR THE PUBLIC SERVICE THE NEEDED AMOUNT OF GAS. 
ONCE A PRICE IS REACHED THAT WILL DO THAT, THERE IS NO LEGAL OR
ECONOMIC REASON TO GO HIGHER; AND ANY RATE ABOVE ONE THAT WILL PERFORM
THIS FUNCTION IS UNWARRANTED.  IF THE SUPPLY COMES FROM A REGION WHERE
THERE IS SUCH OVERPRODUCTION THAT OWNERS ARE READY TO SELL FOR LESS
THAN A FAIR RETURN ON THEIR INVESTMENT, THERE IS NO REASON WHY THE
PUBLIC SHOULD PAY MORE.  ON THE OTHER HAND, IF THE SUPPLY IS NOT TOO
PLENTIFUL AND THE PRICE IS NOT A SUFFICIENT INCENTIVE TO EXPLOIT IT AND
FAILS TO BRING FORTH THE QUANTITY NEEDED, THE PRICE IS UNWISELY LOW,
EVEN IF IT DOES SQUARE PERFECTLY WITH SOMEBODY'S IDEA OF RETURN ON A
"RATE BASE."  THE PROBLEM, OF COURSE, IS TO KNOW WHAT PRICE LEVEL WILL
BE ADEQUATE TO PERFORM THIS ECONOMIC FUNCTION. 

THIS CASE THROWS LIGHT ON A SUBJECT WHICH IN HOPE I WAS TRYING TO
DISCUSS MORE ABSTRACTLY.  THE EVIDENCE HERE SHOWS FACTS FROM WHICH WE
CAN LEARN, IN THE WAY ANY PRACTICAL BUYER WOULD SEEK TO LEARN, AT WHICH
PRICE THIS COMPANY IS ABLE, WILLING, AND READY TO BRING GAS INTO THE
INTERSTATE WHOLESALE MARKET.  IT IS WHAT MIGHT BE CALLED THE MOST
FAVORED-CUSTOMER TEST, A TEST OF COURSE NOT AVAILABLE IN A FULLY
REGULATED INDUSTRY BUT PECULIARLY ADAPTED TO THE CONDITIONS OF THE
NATURAL GAS INDUSTRY AS IT HAS DEVELOPED.  THIS PETITIONER, COLORADO
INTERSTATE GAS COMPANY, SELLS TO COLORADO FUEL AND IRON COMPANY A LARGE
QUANTITY OF GAS FOR INDUSTRIAL USE.  ITS CONSUMPTION APPROXIMATES THAT
OF ALL THE INHABITANTS OF DENVER.  COLORADO FUEL AND IRON USED IN
PLANTS 7,257,379 M.C.F.'S, WHILE DENVER WAS SUPPLIED FOR PUBLIC SERVICE
6,196,882 M.C.F.'S.  THE RATES TO THE FUEL AND IRON COMPANY ARE NOT AND
NEVER HAVE BEEN REGULATED BY PUBLIC AUTHORITY.  IN MAY 1938, THE GAS
COMPANY CONTRACTED TO EXTEND THE FUEL AND IRON SUPPLY CONTRACT FOR FIVE
YEARS AT 9 1/2 CENTS PER M.C.F. FOR BOILER FUEL AND 16 CENTS PER M.C.F.
FOR OTHER PURPOSES.  THE SAME GAS IS SOLD WHOLESALE BY THE SAME COMPANY
AT THE DENVER CITY GATE TO THE LOCAL DISTRIBUTING COMPANY AT 40 CENTS
PER M.C.F. 

OF COURSE DIFFERENCES IN CONDITIONS OF DELIVERY MUST BE ALLOWED FOR. 
GAS FROM THE FIELD IS TRANSMITTED ROUGHLY 200 MILES FROM THE FIELD TO
COLORADO FUEL AND IRON AND ABOUT ANOTHER 100 MILES TO DENVER.  IF 50
PER CENT MORE TRANSPORTATION ADDED 50 PER CENT TO THE ENTIRE PRICE OF
THE FUEL AND IRON COMPANY GAS, WHICH WOULD MEAN ATTRIBUTING A ZERO
VALUE TO IT IN THE FIELD AND ITS ENTIRE SELLING PRICE TO
TRANSPORTATION, IT WOULD BRING GAS TO THE CITY GATE OF DENVER AT ABOUT
14 CENTS BASED ON BOILER GAS AND 24 CENTS BASED ON OTHER GAS, INSTEAD
OF THE 40 CENTS BEING CHARGED. 

ANOTHER DIFFERENCE MUST BE ALLOWED FOR.  THE DENVER PUBLIC SERVICE
HAS PRIORITY OVER THE INDUSTRIAL GAS IN TIME OF SHORTAGE.  THIS IS AN
IMPRESSIVE LEGAL ADVANTAGE, BUT ONE WHOSE REAL WORTH DEPENDS ON THE
NUMBER AND DURATION OF INTERRUPTIONS IT CAUSES IN ACTUAL PRACTICE. 
FROM THE TABULATION OF REDUCTIONS AND SUSPENSIONS OF SERVICE THE FUEL
AND IRON COMPANY APPEARS TO HAVE SUFFERED 5 INTERRUPTIONS FROM 1932 TO
DECEMBER 31, 1940 - THE SHORTEST FOR FIFTEEN HOURS, THE LONGEST FOR
FIFTY HOURS.  I DO NOT BELITTLE THESE INTERRUPTIONS - THEY MAY BE VERY
COSTLY TO AN INDUSTRIAL CUSTOMER - BUT NOTHING INDICATES THAT THEY
ACCOUNT FOR ANY SUCH DIFFERENCE IN PRICE AS WE HAVE HERE. 

THERE IS EVERY INDICATION THAT THE COLORADO FUEL AND IRON PRICE WAS
REALLY A BARGAINED ONE.  THE GAS COMPANY'S POSITION SEEMS TO HAVE BEEN
THE SAME AS THAT STATED BY ONE OF THE WITNESSES IN THE PANHANDLE CASE,
"IT MAY BE HERESY TO SAY SO BUT WE TRY TO CHARGE OUR NONREGULATED
CUSTOMERS ALL THE TRAFFIC WILL BEAR."  THIS MAY HAVE BEEN CANDOR; IT IS
NOT HERESY.  SUCH IS THE NORMAL SPIRIT OF THE MARKET PLACE.  BUT THE
RECORD SHOWS THAT COLORADO FUEL AND IRON WAS NOT AT THE MERCY OF THE
GAS COMPANY, WAS BARGAINING AT ARM'S LENGTH, HAD A GOOD BARGAINING
POSITION.  IT HAD BEEN USING OTHER FUELS AND THE GAS COMPANY HAD TO BID
FOR ITS BUSINESS AS AGAINST FUEL COMPETITION.  UNDER THIS PRESSURE THE
GAS COMPANY WAS ABLE, READY, AND WILLING TO PART WITH ITS GAS,
DELIVERED 200 MILES FROM THE FIELD, AT 9 1/2 TO 16 CENTS PER M.C.F. 

WHAT ABOUT THE DENVER RATE?  THERE THE LOCAL DISTRIBUTING COMPANY,
WHICH WAS THE PURCHASER, WAS A SUBSIDIARY OF CITIES SERVICE, ONE OF THE
THREE COMPANIES THAT OWNED THE PIPE LINE AND GAS SUPPLY AND WERE THE
SELLERS OF THE GAS.  THAT LOCAL COMPANY HAD BEEN DISTRIBUTING
MANUFACTURED GAS, BY COMPARISON WITH WHICH 40-CENT NATURAL GAS WOULD
LOOK CHEAP, AND IS CHEAP.  IT IS NOT NECESSARY TO DRAW ANY INVIDIOUS
INFERENCES FROM INTERCORPORATE RELATIONSHIPS TO CONCLUDE THAT THE 40
CENT RATE AT THE DENVER GATE WAS NOT A VIGOROUSLY BARGAINED ONE AND WAS
NOT MUCH INFLUENCED BY COMPETITIVE CONSIDERATIONS.  THE GREAT ECONOMIC
ADVANTAGES OF NATURAL GAS TO HOUSEHOLDERS AND THE RELATIVE WASTEFULNESS
OF ITS INDUSTRIAL USE ARE DEVELOPED IN MY OPINION IN HOPE. 

I STRONGLY SUSPECT FROM THE HISTORY OF THIS TRANSACTION THAT THERE IS
AN EXPLANATION OF THE DIFFERENCE IN PRICE - ONE WHICH IS NOT AN
UNCOMMON ARGUMENT USED TO JUSTIFY A LOWER PRICE TO INDUSTRIAL THAN TO
HOUSEHOLD USERS.  TO SUPPLY DENVER REQUIRED LAYING A 20-INCH PIPE LINE,
REQUIRES OPERATING IT, AND REQUIRES MOST OF THE OVERHEAD OF THE
BUSINESS.  TO CARRY THE ADDITIONAL FUEL AND IRON BUSINESS REQUIRED ONLY
TO LAY THE FIRST 200 MILES OF PIPE OF 22-INCH DIAMETER INSTEAD OF 20,
AND THE ADDITIONAL REVENUE FROM INDUSTRIAL SALES DOES NOT ADD THE SAME
PROPORTION OF CAPITAL INVESTMENT, OVERHEAD, OR OPERATING EXPENSE. 
THUS, CHARGING TO DENVER AND OTHER WHOLESALE PURCHASERS FOR RESALE TO
THE PUBLIC NO MORE THAN WOULD BE CHARGED IF THAT SERVICE STOOD ALONE,
THE COMPANY MAY JUSTIFY ITS INDUSTRIAL SALES AT LOW RATES AS GOOD
BUSINESS FROM PETITIONER'S MANAGEMENT POINT OF VIEW. 

BUT I DO NOT THINK IT CAN BE ACCEPTED AS A PRINCIPLE OF PUBLIC
REGULATION THAT INDUSTRIAL GAS MAY HAVE A FREE RIDE BECAUSE THE PIPE
LINE AND COMPRESSOR HAVE TO OPERATE ANYWAY, ANY MORE THAN WE CAN SAY
THAT A BIG CONSUMER SHOULD HAVE A FREE RIDE FOR HIS COAL BECAUSE THE
TRAINS RUN ANYWAY.  IT IS TRUE THAT THE NATURAL GAS ACT FORBIDS
DISCRIMINATION ONLY AS BETWEEN REGULATED RATES AND DOES NOT FORBID
DISCRIMINATIONS BETWEEN THE REGULATED AND UNREGULATED ONES.  15 U.S.C.
SEC. 717C (B).  BUT I DO NOT THINK IT PRECLUDES USE OF A VOLUNTARY,
FAIRLY BARGAINED SELLING PRICE AS A STANDARD OF WHAT IS A "JUST AND
REASONABLE" PRICE.  BY USE OF THE UNREGULATED PRICE AS A BASIS FOR
COMPARISON I THINK A REDUCTION IN THE WHOLESALE RATES FOR RESALE TO THE
PUBLIC IS IN ORDER.  IF THIS MAKES LOW PRICE INDUSTRIAL BUSINESS LESS
DESIRABLE, IT WILL BE IN THE LONG-RANGE PUBLIC INTEREST FOR REASONS
MORE FULLY STATED BY ME IN HOPE. 

I SHOULD LIKE TO REVERSE THIS CASE, NOT BECAUSE I THINK THE RATE
REDUCTION IS WRONG, BUT BECAUSE I THINK THE REAL INWARDNESS OF THE GAS
BUSINESS AS AFFECTS THE FUTURE HAS BEEN OBSCURED BY THE COMMISSION'S
PREOCCUPATION WITH BOOKKEEPING AND HISTORICAL MATTER.  SUCH
CONSIDERATIONS MAY BE RELEVANT TO RATE-BASE THEORIES, BUT WILL NOT BE
VERY SATISFYING TO A COMING GENERATION THAT WILL LOOK BACK AND JUDGE
OUR PRESENT REGULATORY METHOD IN THE LIGHT OF AN EXHAUSTED AND LARGELY
WASTED GAS SUPPLY.  BUT AS THE MATTER STANDS I SEE NO LEGAL GROUNDS FOR
REVERSAL. 

FN1  IT DOES NOT HELP ME TO KNOW WHAT IS A REASONABLE PRICE FOR GAS
TO LEARN WHAT IT DOES TO OUTSTANDING SECURITIES.  MANY GAS COMPANIES
WERE ORGANIZED AND OPERATED IN CARE-FREE DAYS WHEN THEY ISSUED STOCKS
AND BONDS WITHOUT SUPERVISION.  IT DOES NOT PROVE THAT A GAS RATE IS
TOO LOW TO SHOW THAT IT DOES NOT PAY DIVIDENDS ON INFLATED VALUES.  NOR
IS A RATE PROVED EXCESSIVE BY THE FACT THAT IT PAYS A LARGE DIVIDEND
UPON AN EXCEEDINGLY CONSERVATIVE CAPITALIZATION.  I THINK HOPE'S USE OF
RETURN ON STOCK OR BOND ISSUES, REPEATED IN THESE CASES, IS ONE OF THE
LEAST RELIABLE OF POSSIBLE TESTS OF RATES. 

MR. CHIEF JUSTICE STONE, DISSENTING IN NO. 380. 

MR. JUSTICE ROBERTS, MR. JUSTICE REED, MR. JUSTICE FRANKFURTER AND I
ARE OF OPINION THAT THE FEDERAL POWER COMMISSION, IN MAKING THE RATE
ORDER HERE UNDER ATTACK, EXCEEDED ITS JURISDICTION AND REACHED A RESULT
WHICH MUST BE REJECTED BECAUSE UNAUTHORIZED BY THE APPLICABLE STATUTE. 

IN FIXING RATES FOR PETITIONER'S INTERSTATE BUSINESS OF TRANSPORTING
AND SELLING NATURAL GAS FOR RESALE, THE COMMISSION INCLUDED
PETITIONER'S GAS WELLS AND GAS GATHERING FACILITIES TOGETHER WITH ALL
ITS TRANSPORTATION AND DISTRIBUTION FACILITIES IN A SINGLE RATE BASE. 
IT VALUED THE WELLS AND GATHERING FACILITIES AT THEIR PRUDENT
INVESTMENT COST OF MANY YEARS AGO, A VALUATION DRASTICALLY LESS THAN
THEIR PRESENT MARKET VALUE.  IT THEN RESTRICTED PETITIONER'S RETURN TO
6 1/2% OF THE RATE BASE, INCLUDING THE WELLS AND PRODUCTION FACILITIES,
CONSTITUTING APPROXIMATELY TWO-THIRDS OF THE TOTAL RATE BASE.  IT THUS
SUBJECTED PETITIONER'S PRODUCTION AND GATHERING PROPERTY TO THE SAME
REGULATION AS THAT WHICH THE STATUTE IMPOSES UPON PETITIONER'S PROPERTY
USED AND USEFUL IN THE INTERSTATE TRANSPORTATION AND SALE OF GAS FOR
RESALE.  THIS, WE THINK, THE NATURAL GAS ACT IN PLAIN TERMS PROHIBITS. 

THE NATURAL GAS ACT OF 1938, 52 STAT. 821, 15 U.S.C. SEC. 717, ET
SEQ., AS AMENDED FEBRUARY 7, 1942, 56 STAT. 83, DECLARES, SEC. 1(A):
"THE BUSINESS OF TRANSPORTING AND SELLING NATURAL GAS FOR ULTIMATE
DISTRIBUTION TO THE PUBLIC IS AFFECTED WITH A PUBLIC INTEREST, AND  ...
FEDERAL REGULATION IN MATTERS RELATING TO THE TRANSPORTATION OF
NATURAL GAS AND THE SALE THEREOF IN INTERSTATE AND FOREIGN COMMERCE IS
NECESSARY IN THE PUBLIC INTEREST."  IN THE EXECUTION OF THIS POLICY
SECS. 4 AND 5 OF THE ACT SET UP A COMPLETE SCHEME OF REGULATION OF
RATES AND CHARGES FOR THE TRANSPORTATION AND SALE OF NATURAL GAS BY
"NATURAL GAS COMPANIES" AT WHOLESALE IN INTERSTATE COMMERCE.  SECTION
2(6) DEFINES A NATURAL GAS COMPANY AS "A PERSON ENGAGED IN THE
TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE, OR THE SALE IN
INTERSTATE COMMERCE OF SUCH GAS FOR RESALE."  SECTION 1(B) PROVIDES:
"THE PROVISIONS OF THIS ACT SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE  ..., BUT SHALL NOT APPLY TO ANY OTHER
TRANSPORTATION OR SALE OF NATURAL GAS  ...  OR TO THE PRODUCTION OR
GATHERING OF NATURAL GAS." 

THE COURT REJECTS PETITIONER'S CONTENTIONS THAT THESE PROVISIONS
PRECLUDE THE COMMISSION FROM INCLUDING THE GAS WELLS AND GATHERING
FACILITIES IN THE RATE BASE FOR PETITIONER'S REGULATED BUSINESS; THAT
REGULATION BEGINS ONLY WITH THE DELIVERY OF GAS INTO PETITIONER'S
TRANSMISSION PIPE LINE AND INCLUDES, AS THE STATUTE PROVIDES, ONLY THE
INTERSTATE TRANSPORTATION AND SALE OF THE GAS FOR RESALE.  PETITIONER
INSISTS THAT, SINCE THE WELLS AND GATHERING FACILITIES ARE NOT SUBJECT
TO COMMISSION REGULATION, THE COST OR VALUE OF THE GAS UPON ITS
DELIVERY TO PETITIONER'S TRANSMISSION LINE MUST, FOR PURPOSES OF RATE
REGULATION OF THE REGULATED BUSINESS OF TRANSPORTATION AND SALE, BE
TAKEN AT ITS FAIR MARKET VALUE. 

THIS ISSUE IS NOW FOR THE FIRST TIME PRESENTED TO THIS COURT FOR
DECISION.  NO SUCH QUESTION WAS RAISED OR DECIDED IN FEDERAL POWER
COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591, 610-614.  ALTHOUGH IT WAS
MENTIONED IN THE AMICUS BRIEF OF THE STATE OF WEST VIRGINIA, WHICH WAS
NOT A PARTY TO THE SUIT, NO SUCH ISSUE WAS RAISED BY THE PARTIES IN THE
CASE.  THERE THE GAS WELLS AND GATHERING PROPERTY WERE INCLUDED IN THE
RATE BASE VALUED AT ITS PRUDENT INVESTMENT COST, AND THE ALLOWED RETURN
WAS RESTRICTED TO 6 1/2%.  BUT NO OBJECTION WAS TAKEN TO THE INCLUSION
OF THE PRODUCTION PROPERTY IN THE RATE BASE, EITHER IN THE CIRCUIT
COURT OF APPEALS OR, SO FAR AS THE RECORD SHOWS, IN THE APPLICATION TO
THE COMMISSION FOR REHEARING.  SECTION 19(B) PROVIDES THAT NO OBJECTION
TO THE COMMISSION'S ORDER MAY BE CONSIDERED BY THE COURT UNLESS RAISED
IN THE APPLICATION TO THE COMMISSION FOR REHEARING.  THE PRODUCTION
PROPERTY HAVING BEEN INCLUDED IN THE RATE BASE WITHOUT OBJECTION, WE
COULD CONSIDER ONLY THE QUESTION WHICH WAS RAISED WITH RESPECT TO
PROPERTY ADMITTED TO BE PROPERLY A PART OF THE RATE BASE, NAMELY,
WHETHER ITS VALUATION BY THE COMMISSION AND THE ALLOWED RATE OF RETURN
WERE WITHIN CONSTITUTIONAL LIMITS.  CF. COHENS V. VIRGINIA, 6 WHEAT. 
264, 399. 

THE ACT SPEAKS IN TERMS OF ACTIVITIES WHICH ARE REGULATED AND THOSE
WHICH ARE NOT.  IT SUBJECTS THE INTERSTATE TRANSPORTATION AND SALE OF
NATURAL GAS, AN ACTIVITY, TO THE JURISDICTION OF THE COMMISSION, WHICH
INCLUDES THE EXERCISE OF ITS RATE-MAKING FUNCTION AS PRESCRIBED BY
SECS. 4 AND 5, AND WHICH CONCEDEDLY EXTENDS TO THE VALUATION OF
PROPERTY USED IN INTERSTATE TRANSPORTATION AND SALE OF NATURAL GAS AND
TO THE DETERMINATION OF A FAIR RATE OF RETURN UPON THAT VALUE.    EVEN
THOUGH PRODUCTION AND GATHERING COULD BE THOUGHT TO BE A PART OF THE
REGULATED TRANSPORTATION AND SALE, THAT POSSIBILITY IS PRECLUDED BY THE
WORDS OF SEC. 1(B) WHICH SAY:  "THE PROVISIONS OF THIS ACT (INCLUDING
THOSE OF SECS. 4 AND 5 WHICH PRESCRIBE RATE MAKING FOR THE ACTIVITY OF
TRANSPORTING AND SELLING WHOLESALE) SHALL NOT APPLY" TO ANOTHER
ACTIVITY, "THE PRODUCTION OR GATHERING OF NATURAL GAS."    IT DOES NOT
SEEM POSSIBLE TO SAY IN PLAINER OR MORE UNMISTAKABLE LANGUAGE THAT THE
ONE ACTIVITY, INTERSTATE TRANSPORTATION AND SALE, IS TO BE SUBJECTED
TO, AND THAT THE OTHER, PRODUCTION OR GATHERING, IS TO BE EXCLUDED
FROM, THE VALUATION AND RATE-MAKING POWERS OF THE COMMISSION.  TO
INTERPRET THE WORDS "PRODUCTION OR GATHERING" IN SEC. 1(B) IN THE ONLY
WAY WHICH THE COURT OR THE GOVERNMENT IS ABLE TO SUGGEST, AS REFERRING
ONLY TO THE PHYSICAL ACTIVITIES OF DRILLING AND SPACING THE GAS WELLS,
AND THUS EXCLUDING SUCH ACTIVITIES ALONE FROM REGULATION, SEEMS HARDLY
PLAUSIBLE.  IT IS TRUE THAT "PRODUCTION OR GATHERING" ARE ACTIVITIES
WHICH MAY INCLUDE THE DRILLING AND SPACING OF GAS WELLS.  BUT THE
"TRANSPORTATION AND SALE" REFERRED TO IN THE PHRASE OF SEC. 1(B) "BUT
SHALL NOT APPLY TO ANY OTHER TRANSPORTATION OR SALE OF NATURAL GAS  ...
OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS," IS ALSO AN
ACTIVITY.  YET THE COURT AND THE GOVERNMENT CONCEDE THAT BY THE COMMAND
OF THE ACT THAT IT "SHALL NOT APPLY" TO THE ACTIVITY OF "ANY OTHER
TRANSPORTATION OR SALE," PETITIONER'S PROPERTY USED IN THE
TRANSPORTATION AND SALE OF GAS TO INDUSTRIAL CONSUMERS IS EXCLUDED FROM
THE RATE BASE.  THEY THUS REACH THE SURPRISING CONCLUSION THAT PROPERTY
USED IN ONE SORT OF ACTIVITY TO WHICH THE PROVISIONS OF THE ACT ARE
DECLARED NOT TO APPLY, MAY NEVERTHELESS BE INCLUDED IN THE RATE BASE,
WHILE HOLDING THAT ANOTHER SORT OF PROPERTY, ALSO USED IN AN ACTIVITY
TO WHICH THE PROVISIONS OF THE ACT ARE BY THE SAME PHRASE DECLARED NOT
TO APPLY, IS NEVERTHELESS EXCLUDED FROM THE RATE BASE. 

NOR IS THE PLAUSIBILITY OF THE GOVERNMENT'S CONSTRUCTION AIDED BY
REFERENCE TO THE PROVISIONS OF THE ACT  FN1  GIVING THE COMMISSION
POWER TO MAKE INVESTIGATIONS, TO REGULATE ACCOUNTS, TO GATHER
INFORMATION AND TO FIND VALUES OF PROPERTY OF NATURAL GAS COMPANIES AND
THEIR DEPRECIATION.  THESE PROVISIONS ARE OBVIOUSLY DIRECTED AT AIDING
THE COMMISSION IN THE EXERCISE OF VARIOUS POWERS WHICH ARE CONFERRED
UPON IT BUT WHICH ARE UNRELATED TO THE REGULATION OF THE PRODUCTION OR
GATHERING OF NATURAL GAS.  SECTION 5(B), FOR EXAMPLE, AUTHORIZES THE
COMMISSION TO PROCURE THE INFORMATION OF COSTS OF PRODUCTION OR
TRANSPORTATION OF NATURAL GAS IN AID OF STATE COMMISSIONS, AND SUCH WAS
ITS PURPOSE.  H. REP. NO. 709, P. 5, 75TH CONG., 1ST SESS., ON H.R.
6586.  SECTIONS 9(A) AND 10(A) GIVE AUTHORITY ESSENTIAL TO THE
COMMISSION'S ADMITTED POWER TO REGULATE THE INTERSTATE SALE OF GAS AT
WHOLESALE, TO DETERMINE WHETHER THE COST OF OR CHARGE FOR THE GAS
ACQUIRED BY A NATURAL GAS COMPANY, WHOSE RATES ARE REGULATED, ARE
EXCESSIVE BECAUSE UNRELATED TO FAIR OR MARKET VALUE, ESPECIALLY WHERE
THE RELATIONS BETWEEN THE PRODUCER AND THE INTERSTATE WHOLESALE
DISTRIBUTOR ARE NOT AT ARM'S LENGTH.  UNITED FUEL GAS CO. V. RAILROAD
COMM'N, 278 U.S. 300, 320; SMITH V. ILLINOIS BELL TEL. CO., 282 U.S.
133, 144; WESTERN DISTRIBUTING CO. V. PUBLIC SERVICE COMM'N, 285 U.S.
119; DAYTON POWER CO. V. PUBLIC UTILITIES COMM'N, 292 U.S. 290; NATURAL
GAS CO. V. SLATTERY, 302 U.S. 300, 306-308; ARKANSAS GAS CO. V. DEPT.,
304 U.S. 61; CF. INTERSTATE COMMERCE COMM'N V. GOODRICH TRANSIT CO.,
224 U.S. 194, 211.  AND THE DETERMINATION OF THE COMMISSION PERMITTED
BY SEC. 14(A) WITH RESPECT TO THE AMOUNT OF GAS RESERVE IS ESSENTIAL TO
THE DETERMINATION OF THE RATE OF DEPRECIATION AND AMORTIZATION OF THE
GAS COMPANY'S REGULATED TRANSMISSION LINE, SINCE ITS USEFUL LIFE IS
NORMALLY LIMITED BY THE AVAILABLE GAS SUPPLY. 

NO REASON, FOUNDED UPON THE LANGUAGE OF THE STATUTE OR ITS PURPOSE,
IS ADVANCED FOR DISREGARDING THE PLAIN COMMAND OF SEC. 1(B) EXCLUDING
THE PRODUCTION OR GATHERING OF THE GAS FROM THOSE OTHER ACTIVITIES, THE
TRANSPORTING AND SELLING, WHICH ARE SUBJECT TO THE REGULATORY
PROVISIONS OF SECS. 4 AND 5.  THE LANGUAGE WAS WELL CHOSEN TO
ACCOMPLISH EXACTLY WHAT THE LEGISLATIVE HISTORY SHOWS WAS INTENDED TO
BE ACCOMPLISHED.  THE REPORT OF THE HOUSE COMMITTEE (H. REP. NO. 709,
75TH CONG., 1ST SESS.), RECOMMENDING ADOPTION OF THE BILL WHICH BECAME
THE NATURAL GAS ACT, SHOWS BEYOND DOUBT THAT THE PURPOSE OF THE
LEGISLATION WAS TO BRING UNDER FEDERAL REGULATORY CONTROL THE
INTERSTATE TRANSPORTATION AND SALE OF NATURAL GAS WHICH HAD BEEN HELD
NOT TO BE SUBJECT TO STATE REGULATION, IN MISSOURI V. KANSAS GAS CO.,
265 U.S. 298; CF. PUBLIC UTILITIES COMM'N V. ATTLEBORO CO., 273 U.S.
83, BUT TO LEAVE UNDISTURBED ALL OTHER MATTERS WHICH WERE THEN SUBJECT
TO STATE REGULATION, WHICH INCLUDED RATE-MAKING FOR PRODUCTION AND
GATHERING.  SEE ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS CO., 314
U.S. 498, 506; FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., SUPRA,
609.  AND UPON THE FLOOR OF THE SENATE THE SPONSOR OF THE BILL
DECLARED:  "IT DOES NOT ATTEMPT TO REGULATE THE PRODUCERS OF NATURAL
GAS OR THE DISTRIBUTORS OF NATURAL GAS; ONLY THOSE WHO SELL IT
WHOLESALE IN INTERSTATE COMMERCE."  81 CONG. REC., P. 9312.  THAT THE
EXEMPTION OF THE PRODUCTION OF NATURAL GAS FROM REGULATION WAS THOUGHT
BY THE REGULATORY AUTHORITIES THEMSELVES TO EXCLUDE REGULATION, BY THE
COMMISSION, OF THE PRICE OF GAS IN THE PRODUCING FIELD, APPEARS FROM
THE HEARINGS UPON THE PREDECESSOR BILL,  FN2  WHICH CONTAINED
PROVISIONS IDENTICAL WITH OR SUBSTANTIALLY EQUIVALENT TO SECS. 5(B),
6(A), 9(A), AND 10(A) OF THE ACT AS FINALLY PASSED, AND SEC. 1(B) OF
WHICH DECLARED THAT THE PROVISIONS OF THE BILL SHOULD NOT APPLY "TO THE
PRODUCTION OF NATURAL GAS." 

THE EXCLUSION OF PRODUCTION AND GATHERING OF NATURAL GAS FROM THE
REGULATORY AUTHORITY OF THE COMMISSION IS A COMMAND TO THE COMMISSION
NOT TO REGULATE THAT WHICH IS EXCLUDED.  OTHERWISE POWERS RESERVED TO
THE STATES WOULD BE ENCROACHED UPON CONTRARY TO THE WORDS AND PURPOSE
OF THE ACT, AND A PRETENDED GOVERNMENT WOULD BE SET UP BY COMMISSION
ACTION, WITHOUT THE AUTHORITY OF CONGRESS. 

THE COMMISSION DID NOT DENY THE COMMAND, BUT JUSTIFIED DISREGARD OF
IT ONLY BY SAYING THAT "CANADIAN'S PRODUCTION AND GATHERING OPERATIONS
ARE AN INTEGRAL PART OF ITS TOTAL OPERATIONS, INCLUDING TRANSPORTATION
IN INTERSTATE COMMERCE AND THE SALE OF NATURAL GAS FOR RESALE IN
INTERSTATE COMMERCE."  AND IT ADDED:  "THE INVESTIGATION OF CANADIAN'S
PRODUCTION AND GATHERING PROPERTY AND OPERATIONS IS INDISPENSABLE IN
REGULATING CANADIAN'S RATES AND CHARGES FOR THE SALE OF NATURAL GAS IN
INTERSTATE COMMERCE FOR RESALE."  SUCH AN INVESTIGATION WAS UNDOUBTEDLY
PROPER AND NECESSARY IN ORDER TO ASCERTAIN THE FAIR UNREGULATED VALUE
OF THE NATURAL GAS PRODUCED IN AN UNREGULATED FIELD, ON ITS DELIVERY
INTO PETITIONER'S TRANSMISSION PIPE LINE, IN ORDER TO ENABLE THE
COMMISSION TO REGULATE APPROPRIATELY THE SALES PRICE OF THE GAS. 

BUT THIS DOES NOT MEAN THAT IN FIXING RATES FOR A REGULATED BUSINESS
WHICH DERIVES ITS DISTRIBUTED PRODUCT FROM AN UNREGULATED BUSINESS THAT
THE PROPERTY OF THE LATTER IS NOT TO BE SEGREGATED FROM THE REGULATED
PROPERTY, OR THAT THERE CAN RIGHTLY BE APPLIED TO IT STANDARDS OF
VALUATION AND RATE OF RETURN WHICH ARE APPLICABLE ONLY TO A REGULATED
BUSINESS.  INTERSTATE COMMERCE COMM'N V. GOODRICH TRANSIT CO., SUPRA,
211; SMITH V. ILLINOIS BELL TEL. CO., SUPRA, 151; WESTERN DISTRIBUTING
CO. V. PUBLIC SERVICE COMM'N, SUPRA, 123-124.  OTHERWISE ITS EXCLUSION
FROM REGULATION WOULD BE MEANINGLESS.  THE STANDARDS TO BE APPLIED IN
ORDER TO MAKE CERTAIN THAT THE REGULATED BUSINESS IS NOT PAYING TOO
MUCH FOR THE PRODUCT ARE THOSE WHICH CURRENTLY APPLY IN THE UNREGULATED
BUSINESS.  THIS, AS WE HAVE POINTED OUT, WAS RECOGNIZED BY THE
SOLICITOR OF THE COMMISSION IN THE HEARINGS ON PROPOSED LEGISLATION
CULMINATING IN THE PRESENT ACT.  HE SAID THAT THE UNREGULATED FIELD
PRICE WAS CONTROLLING UPON THE COMMISSION "IF THE TRANSACTION IS AT
ARM'S LENGTH.  IF THE TRANSACTION IS NOT AT ARM'S LENGTH, OF COURSE,
ITS REASONABLENESS MAY BE INQUIRED INTO, UNDER THE DECISIONS OF THE
SUPREME COURT."  FN3 

IT IS ONE THING TO SAY THAT SUCH INVESTIGATION IS NECESSARY TO
ASCERTAIN THE FAIR UNREGULATED VALUE OF PETITIONER'S GAS WHEN
PRODUCED.  BUT IT IS QUITE ANOTHER TO SAY, AND THE COMMISSION DID NOT
SAY, THAT IT IS NECESSARY OR PERMISSIBLE FOR THE COMMISSION TO FIX THE
VALUE OF PETITIONER'S PRODUCTION PROPERTY AND THE GAS WHICH IT PRODUCES
FAR BELOW THEIR MARKET VALUE, AND TO RESTRICT PETITIONER'S RETURN FROM
ITS UNREGULATED BUSINESS BELOW THAT WHICH WOULD BE PRODUCED IF THE GAS
PRODUCTION WERE UNREGULATED.  SUCH RESTRICTIONS CAN BE JUSTIFIED ONLY
BY AUTHORIZED RATE REGULATION.  FROM SUCH REGULATION PETITIONER'S GAS
WELLS AND PRODUCTION FACILITIES HAVE BEEN SPECIFICALLY EXEMPTED BY
COMMAND OF THE STATUTE. 

WHERE A REGULATED UTILITY PROCURES FROM AN UNREGULATED SOURCE THE
PRODUCT WHICH IT DISTRIBUTES, THE PROPER COST WHICH THE REGULATED
COMPANY SHOULD BE ALLOWED TO PAY FOR IT, WHEN THE COMMISSION IS NOT
AUTHORIZED TO REGULATE THE PRODUCTION, PRESENTS A PROBLEM NOT FREE FROM
DIFFICULTIES.  BUT HERE THE COMMISSION HAS MADE NO EFFORT TO MEET THESE
DIFFICULTIES, IF SUCH THERE BE, EXCEPT BY THE ONE COURSE WHICH THE
STATUTE FORBIDS, BY SUBJECTING THE PRODUCTION PROPERTY TO REGULATION. 

A FAMILIAR AND PERMISSIBLE WAY OF MEETING THEM, AS PETITIONER POINTS
OUT, IS BY TREATING THE PROPERTY UNREGULABLE IN LAW AS UNREGULABLE IN
FACT, AND APPLYING TO IT THOSE STANDARDS OF VALUE AND RETURN WHICH
CURRENTLY PREVAIL IN AN UNREGULATED BUSINESS WHEN IT IS CONDUCTED AT
ARM'S LENGTH.  PETITIONER URGES THAT THERE ARE OTHER COURSES OPEN TO
THE COMMISSION WHICH WILL NOT VIOLATE THE STATUTE, AND THAT THERE IS
UNCONTRADICTED EVIDENCE IN THE RECORD SHOWING THAT NATURAL GAS HAS A
MARKET VALUE AT THE WELLHEAD AND AT THE POINT OF DELIVERY INTO
PETITIONER'S TRANSMISSION LINE.  THOSE CONDITIONS WOULD INDICATE THAT
GAS PRODUCTION PROPERTY IN THE AREA IN QUESTION HAS AN ASCERTAINABLE
MARKET VALUE ON WHICH, IN THE ABSENCE OF REGULATION, PETITIONER IS FREE
TO RECEIVE THE RETURN CURRENTLY PRODUCED BY SUCH PROPERTY. 

WITHOUT AN APPROPRIATE INVESTIGATION WE CANNOT KNOW THE FACT, WHICH
IS FOR THE COMMISSION AND NOT FOR US TO DETERMINE.  IF INVESTIGATION
DISCLOSES DIFFICULTIES WHICH ONLY LEGISLATION CAN COPE WITH, THE ANSWER
IS FURTHER LEGISLATION, NOT DISREGARD OF EXISTING LEGISLATION.  BUT THE
COMMISSION HAS MADE NO SUCH DETERMINATION OR INVESTIGATION AND, SO FAR
AS APPEARS, HAS GIVEN NO CONSIDERATION TO THE EVIDENCE SUPPORTING
PETITIONER'S CONTENTIONS.  IT IS THE DUTY OF THE COMMISSION SO TO
CONDUCT ITS PROCEEDINGS AS TO RESTRICT ITS ACTION WITHIN THE
JURISDICTION CONFERRED UPON IT.  IT IS PLAIN THAT IT HAS NOT PERFORMED
THAT DUTY HERE, AND THAT IT SHOULD BE REQUIRED TO DO SO.  WHETHER THE
FACILITIES FOR THE PRODUCTION OF NATURAL GAS SHOULD BE REGULATED AND,
IF SO, WHETHER THE REGULATION SHOULD BE LEFT TO THE STATES, AS WE THINK
CONGRESS HAS LEFT IT, ARE MATTERS FOR CONGRESS TO DETERMINE.  IF IT BE
THOUGHT THAT PETITIONER'S PROFITS FROM PRODUCTION OF GAS ARE TOO GREAT
BECAUSE THEY ARE UNREGULATED, AND IF IT BE THOUGHT TO BE IMPORTANT THAT
THEY BE REDUCED, IT IS IMMENSELY MORE IMPORTANT THAT THAT BE NOT
ACCOMPLISHED BY LAWLESS ACTION. 

IT IS NO ANSWER TO CITE OUR AUTHORITIES INVOLVING STATE REGULATION,
FN4  IN ORDER TO PROVE THAT THE COMMISSION HERE HAS ACTED WITHIN ITS
STATUTORY AUTHORITY.  IN REVIEWING SUCH CASES WE ACCEPT THE STATE'S
CONSTRUCTION OF ITS STATUTES FIXING THE JURISDICTION OF STATE
REGULATORY BODIES.  NOR IS IT ANY JUSTIFICATION OF THE COMMISSION'S
ACTION TO SAY, APPLYING THE HOPE CASE, THAT THE END RESULT OF THE
COMMISSION'S ACTION IS THAT PETITIONER'S UNREGULATED PROPERTY IS NOT
BEING CONFISCATED.  AUTHORIZED UTILITY REGULATION MAY, OF COURSE,
RESULT IN A PERMISSIBLE DIMINUTION OF PROPERTY VALUES AND INCOME,
PROVIDED THE REGULATION DOES NOT SO EXCEED CONSTITUTIONAL LIMITATIONS
AS TO BE "CONFISCATORY."  HENCE, LOSS OR DAMAGE CAUSED BY AUTHORIZED
UTILITY REGULATION GIVES RISE TO NO ACTIONABLE WRONG IF THE REGULATION
IS WITHIN CONSTITUTIONAL LIMITATIONS.  SUCH WAS THE PRINCIPLE LAID DOWN
IN THE HOPE CASE. 

BUT ANY SUCH DIMINUTION IN VALUE OR RETURN, CAUSED BY UNAUTHORIZED
REGULATION, IS UNLAWFUL WITHOUT REFERENCE TO CONSTITUTIONAL
PRINCIPLES.  IN THE HOPE CASE THERE WAS NO CONTENTION THAT THE
UTILITY'S PRODUCTION PROPERTY WAS NOT SUBJECT TO REGULATION.  THE ONLY
QUESTION WAS WHETHER THE RETURN UPON IT, AS ALLOWED BY STATUTORY
AUTHORITY, WAS CONFISCATORY BECAUSE IT WENT BEYOND THE CONSTITUTIONAL
LIMITS OF THE POWER TO REGULATE.  HERE THE QUESTION IS ONLY OF THE
DEPRIVATION OF PETITIONER'S PROPERTY BY THE COMMISSION'S ACTION IN
EXCESS OF ITS STATUTORY POWER TO REGULATE.  THAT POWER, IN THE CASE OF
PETITIONER'S PRODUCTION PROPERTY, WE THINK DOES NOT EXIST.  SO FAR AS
THE UNAUTHORIZED REGULATION DEPRIVES PETITIONER OF ITS PROPERTY, THE
DEPRIVATION CANNOT BE JUSTIFIED BY SAYING THAT, IF AUTHORIZED, IT WOULD
NOT VIOLATE THE CONSTITUTION.  ABSENCE OF CONFISCATION BY AUTHORIZED
COMMISSION REGULATION DOES NOT PROVE THAT THE COMMISSION HAS
LEGISLATIVE AUTHORITY TO REGULATE. 

FN1  SECTION 5(B) AUTHORIZES INVESTIGATION BY THE COMMISSION OF THE
COST OF PRODUCTION OF NATURAL GAS, WHERE THE COMMISSION HAS NO
AUTHORITY TO ESTABLISH A RATE GOVERNING THE TRANSPORTATION OR SALE OF
SUCH NATURAL GAS.  SECTION 6(A) EMPOWERS THE COMMISSION TO ASCERTAIN
THE COST OF THE PROPERTY OF EVERY NATURAL GAS COMPANY AND OTHER FACTS
BEARING ON THE DETERMINATION OF SUCH COST "WHEN FOUND NECESSARY FOR
RATE MAKING PURPOSES."  SECTION 9(A) AUTHORIZES THE COMMISSION TO
DETERMINE THE PROPER "RATES OF DEPRECIATION AND AMORTIZATION" OF THE
SEVERAL CLASSES OF PROPERTY OF EACH NATURAL GAS COMPANY "USED OR USEFUL
IN THE PRODUCTION, TRANSPORTATION, OR SALE OF NATURAL GAS."  SECTION
10(A) GIVES THE COMMISSION AUTHORITY TO REQUIRE REPORTS FROM NATURAL
GAS COMPANIES OF THEIR "COST OF MAINTENANCE AND OPERATION OF FACILITIES
FOR THE PRODUCTION" OF NATURAL GAS.  SECTION 14(A) GIVES THE COMMISSION
POWER TO DETERMINE THE "ADEQUACY OR INADEQUACY OF THE GAS RESERVES HELD
OR CONTROLLED" BY THEM.    FN2  IN THE HEARINGS UPON THE EARLIER BILL,
MR. DEVANE, SOLICITOR OF THE FEDERAL POWER COMMISSION, STATED:
"SECTION 1(B) ALSO PROVIDES THAT THE COMMISSION SHALL HAVE NO
JURISDICTION OVER THE GATHERING OR GATHERING RATES FOR NATURAL GAS." 
"GATHERING RATES," HE EXPLAINED AS "THE RATES THAT ARE PAID IN THE
GATHERING FIELD."  HE FURTHER STATED, "THERE IS NO CONTROL OF THE
GATHERING RATE; THE COMMISSION WOULD NOT HAVE JURISDICTION.  THAT PRICE
IS FIXED BY COMPETITIVE CONDITIONS THAT EXIST IN THE FIELD."  HE SAID
THAT THE COMMISSION DOES NOT HAVE ANY POWER OVER THE PRICE "THAT IS
PAID TO THE GATHER, TO THE MAN THAT PRODUCES IT; THAT IS BINDING IF THE
TRANSACTION IS AT ARM'S LENGTH.  IF THE TRANSACTION IS NOT AT ARM'S
LENGTH, OF COURSE, ITS REASONABLENESS MAY BE INQUIRED INTO, UNDER THE
DECISIONS OF THE SUPREME COURT."  THERE IS NOTHING IN THE SUBSEQUENT
LEGISLATIVE HISTORY TO INDICATE THAT THIS UNDERSTANDING WITH RESPECT TO
SEC. 1(B) IN THE EARLIER ACT WAS CHANGED AT A LATER STAGE, AND SEC.
1(B) AS FINALLY ADOPTED INDICATES NO SUCH CHANGE.  HEARINGS ON H.R.
11662, 74TH CONG., 2D SESS., PP. 28, 42-3. 

FN3  SEE FOOTNOTE 2, SUPRA. 

FN4  WILLCOX V. CONSOLIDATED GAS CO., 212 U.S. 19; CEDAR RAPIDS GAS
CO. V. CEDAR RAPIDS, 223 U.S. 655; NEWARK NATURAL GAS CO. V. NEWARK,
242 U.S. 405; PUBLIC UTILITIES COMM'N V. LANDON, 249 U.S. 236;
PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMM'N, 252 U.S. 23; RAILROAD
COMMISSION V. PACIFIC GAS & ELECTRIC CO., 302 U.S. 388; LONE STAR GAS
CO. V. TEXAS, 304 U.S. 224. 
..END :



COLORADO-WYOMING CO. V. COMM'N, 324 U.S. 626 


NO. 575.  ARGUED JANUARY 30, 1945.  - DECIDED APRIL 2, 1945.  - 142 F.2D
943, AFFIRMED IN PART - REVERSED IN PART. 


1.  WHOLESALES TO DISTRIBUTORS WITHIN A STATE OF NATURAL GAS WHICH THE
WHOLESALER PURCHASES WITHIN THE STATE, BUT WHICH MOVES IN A CONTINUOUS
STREAM ACROSS STATE LINES TO THE LOCAL DISTRIBUTORS, ARE IN INTERSTATE
COMMERCE AND SUBJECT TO REGULATION UNDER THE NATURAL GAS ACT.  P. 630. 

2.  THE RATE REDUCTION ORDERED BY THE COMMISSION IN THIS CASE IS
SUSTAINED TO THE EXTENT THAT IT REFLECTS A VALID REDUCTION IN THE RATES
OF A COMPANY FROM WHICH THE PETITIONER PURCHASES GAS; BUT AS TO THE
BALANCE OF THE RATE REDUCTION, THE JUDGMENT APPROVING THE RATE
REDUCTION ORDER IS REVERSED BECAUSE OF INADEQUATE FINDINGS BY THE
COMMISSION.  P. 634. 

COLORADO-WYOMING GAS CO. V. FEDERAL POWER COMMISSION ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 323 U.S. 701, TO REVIEW THE AFFIRMANCE OF A RATE ORDER OF
THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A COMPANION CASE TO COLORADO INTERSTATE GAS CO. V.
FEDERAL POWER COMMISSION AND CANADIAN RIVER GAS CO. V. FEDERAL POWER
COMMISSION, ANTE, P. 581.  PETITIONER BEGAN OPERATIONS IN 1925.  UNTIL
1929 PETITIONER OBTAINED ITS ENTIRE SUPPLY FROM THE WELLINGTON FIELD OF
THE CONTINENTAL OIL CO., NEAR FT. COLLINS, COLORADO.  ITS TRANSMISSION
LINE RAN FROM THAT POINT NORTH TO CHEYENNE, WYOMING.  THE WELLINGTON
FIELD BEGAN TO DIMINISH.  SO PETITIONER, IN OCTOBER, 1929, ENTERED INTO
A TWENTY-YEAR CONTRACT WITH COLORADO INTERSTATE TO PURCHASE GAS FROM
IT, THE GAS TO BE DELIVERED TO PETITIONER AT ITS METERING STATION NEAR
LITTLETON, COLORADO.  ACCORDINGLY, IN 1929 AND 1930 PETITIONER
CONSTRUCTED A PIPELINE BETWEEN FT. COLLINS, COLORADO, AND LITTLETON,
COLORADO, WHERE CONNECTION WAS MADE WITH COLORADO INTERSTATE'S
TRANSMISSION SYSTEM.  BETWEEN 1929 AND 1939 BRANCH LINES WERE
CONSTRUCTED TO SERVE VARIOUS CITIES, TOWNS, AND INDUSTRIAL CUSTOMERS IN
COLORADO.  AT THE PRESENT TIME ALL BUT TWO PER CENT OF ITS GAS IS
OBTAINED FROM COLORADO INTERSTATE.  PETITIONER SELLS GAS AT THE
CHEYENNE CITY GATE TO ITS AFFILIATE CHEYENNE LIGHT, FUEL AND POWER CO.
IT ALSO SELLS DIRECTLY TO INDUSTRIAL CONSUMERS IN COLORADO AND TO SOME
EXTENT IN WYOMING.  AND IT SELLS GAS AT VARIOUS CITY GATES IN COLORADO
FOR RESALE. 

THE INVESTIGATION AND HEARINGS ON THE INTERSTATE WHOLESALE RATES OF
CANADIAN, COLORADO INTERSTATE AND PETITIONER WERE CONSOLIDATED.  AS WE
HAVE SEEN, THE COMMISSION ORDERED CANADIAN TO REDUCE ITS RATES BY
$561,000 PER YEAR.  THAT AMOUNT MADE UP PART OF THE $2,065,000 ANNUAL
REDUCTION WHICH THE COMMISSION ORDERED IN THE RATES OF COLORADO
INTERSTATE.  IN THE PRESENT CASE THE COMMISSION FOUND THAT PETITIONER'S
REVENUES WERE $159,000 IN EXCESS OF COSTS AND A FAIR RETURN AND THAT
$119,000 OF THAT EXCESS WERE ALLOCABLE TO PETITIONER'S SALES FOR
RESALE.  THE COMMISSION ORDERED PETITIONER TO REDUCE ITS WHOLESALE
RATES BY $119,000 A YEAR (43 P.U.R. (N.S.)  205, 234).  THAT DOES NOT
REPRESENT THE NET DECREASE IN REVENUE, SINCE THE COMMISSION ORDERED
COLORADO INTERSTATE TO REDUCE ITS RATES TO PETITIONER BY $98,000 A
YEAR.  ACCORDINGLY, THE NET DECREASE IN REVENUES OF PETITIONER WILL BE
$21,000 IF THE COMMISSION'S ORDER STANDS.  THE PETITION FOR CERTIORARI
WHICH WE GRANTED TO REVIEW THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
AFFIRMING THE ORDER OF THE COMMISSION (142 F.2D 943) WAS LIMITED TO THE
QUESTION WHETHER THE ALLOCATION OF COST OF SERVICE USED BY THE
COMMISSION IS WITHOUT SUPPORT IN THE RECORD AND CONTRARY TO LAW. 

THE COMMISSION IN THIS CASE AS IN COLORADO INTERSTATE GAS CO. V.
FEDERAL POWER COMMISSION AND CANADIAN RIVER GAS CO. V. FEDERAL POWER
COMMISSION DID NOT MAKE A SEPARATION OF PROPERTIES USED IN THE
REGULATED BUSINESS FROM THOSE USED IN THE UNREGULATED.  IT USED INSTEAD
THE SAME METHOD OF ALLOCATION OF COSTS AS IT DID IN THOSE OTHER CASES. 
PETITIONER CONTENDS THAT THE COMMISSION'S METHOD OF ALLOCATION OF COSTS
INCLUDED IN THE REGULATED BUSINESS A PART OF ITS BUSINESS WHICH
CONGRESS HAS NOT SUBJECTED TO REGULATION BY THE COMMISSION.  AS WE HAVE
NOTED, PETITIONER'S TRANSMISSION LINE COMMENCES IN COLORADO NEAR
LITTLETON WHERE IT CONNECTS WITH THE PIPELINE OF COLORADO INTERSTATE. 
PETITIONER SELLS SOME OF ITS GAS IN COLORADO FOR RESALE TO DOMESTIC
USERS IN CERTAIN TOWNS IN COLORADO.  THE COMMISSION HELD THAT THOSE
WHOLESALE SALES WERE SUBJECT TO ITS JURISDICTION.  PETITIONER CONTENDS
THAT THOSE SALES ARE MADE IN INTRASTATE COMMERCE AND ARE NOT SUBJECT TO
THE COMMISSION'S RATE-MAKING POWERS.  ITS POSITION IS THAT THE ONE AND
ONLY SALE FOR RESALE BY IT IN INTERSTATE COMMERCE IS THE SALE AT THE
CITY GATE IN CHEYENNE, SINCE NONE OF THE COLORADO SALES INVOLVE
INTERSTATE COMMERCE SO FAR AS PETITIONER IS CONCERNED. 

THE ANSWER TURNS ON THE MEANING OF SEC. 1(B) OF THE ACT (52 STAT.
821, 15 U.S.C. SEC. 717) WHICH PROVIDES: 

"(B) THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE TRANSPORTATION
OF NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE
COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR
DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS
COMPANIES ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY
TO ANY OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

THE COMMISSION RELIED ON ILLINOIS GAS CO. V. CENTRAL ILLINOIS CO.,
314 U.S. 498, IN CONCLUDING THAT IT HAD JURISDICTION OVER THE WHOLESALE
SALES IN COLORADO.  THAT CASE PRESENTED THE QUESTION WHETHER THE
ILLINOIS COMMISSION OR THE FEDERAL POWER COMMISSION HAD AUTHORITY TO
AUTHORIZE A PIPELINE EXTENSION WHOLLY WITHIN ILLINOIS.  THE COMPANY
PROPOSING THE EXTENSION (ILLINOIS GAS CO.)  OWNED A PIPELINE SYSTEM
WHOLLY IN ILLINOIS WHICH WAS CONNECTED AT VARIOUS POINTS IN THAT STATE
WITH THE PIPELINE OF ITS PARENT COMPANY, PANHANDLE EASTERN PIPE LINE
CO., WHICH OWNED AND OPERATED A NATURAL GAS PIPELINE SYSTEM FROM GAS
FIELDS IN TEXAS, KANSAS AND OKLAHOMA ACROSS ILLINOIS AND INTO INDIANA. 
THE ILLINOIS COMPANY PURCHASED ITS GAS UNDER A LONG TERM CONTRACT FROM
PANHANDLE EASTERN AND TRANSPORTED IT THROUGH ITS OWN LINES TO LOCAL GAS
DISTRIBUTING UTILITIES IN ILLINOIS TO WHICH IT SOLD THE GAS FOR
DISTRIBUTION TO CONSUMERS IN VARIOUS ILLINOIS CITIES.  WE HELD THAT THE
ILLINOIS COMPANY BY VIRTUE OF SEC. 7(C) OF THE ACT  FN1  COULD BUILD AN
EXTENSION TO CONNECT WITH THE FACILITIES OF A COMPANY DISTRIBUTING GAS
TO CONSUMERS IN ILLINOIS ONLY AFTER OBTAINING A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY FROM THE FEDERAL POWER COMMISSION.  WE HELD
THAT THE ILLINOIS COMPANY AND PANHANDLE EASTERN WERE ENGAGED "IN
INTERSTATE COMMERCE IN THE PURCHASE AND SALE OF THE NATURAL GAS WHICH
MOVES IN A CONTINUOUS STREAM FROM POINTS WITHOUT THE STATE" INTO THE
PIPES OF THE ILLINOIS COMPANY; AND THAT "THE PARTICULAR POINT AT WHICH
THE TITLE AND CUSTODY OF THE GAS PASS TO THE PURCHASER, WITHOUT
ARRESTING ITS MOVEMENT TO THE INTENDED DESTINATION, DOES NOT AFFECT THE
ESSENTIAL INTERSTATE NATURE OF THE BUSINESS."  314 U.S. PP. 503, 504. 
WE POINTED OUT THAT THE PURPOSE OF THE ACT WAS TO PROVIDE "AN AGENCY
FOR REGULATING THE WHOLESALE DISTRIBUTION TO PUBLIC SERVICE COMPANIES
OF NATURAL GAS MOVING INTERSTATE, WHICH THIS COURT HAD DECLARED TO BE
INTERSTATE COMMERCE NOT SUBJECT TO CERTAIN TYPES OF STATE REGULATION." 
ID., P. 506.  WE REVIEWED THE EARLIER DECISIONS OF THE COURT WHICH
ADOPTED THE MECHANICAL TEST FOR DETERMINING WHEN INTERSTATE COMMERCE
ENDS AND INTRASTATE COMMERCE BEGINS, VIZ., WHEN THE GAS IS INTRODUCED
INTO THE SERVICE PIPES OF THE LOCAL DISTRIBUTOR.  WE NOTED THAT IT WAS
TO FIT THE PATTERN OF STATE REGULATION REFLECTED IN THOSE DECISIONS
THAT THE NATURAL GAS ACT WAS PASSED. 

ACCORDINGLY, WE CONCLUDE THAT IF PETITIONER'S PIPELINE WERE TO BE
CONSTRUCTED TODAY FROM LITTLETON, COLORADO TO THE CITY GATES OF THE
COLORADO TOWNS WHERE PETITIONER'S GAS IS RESOLD, SEC. 7(C) WOULD
REQUIRE THAT A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY BE
OBTAINED FROM THE COMMISSION.  FOR IN THIS CASE AS IN ILLINOIS GAS CO.
V. CENTRAL ILLINOIS CO., SUPRA, THE GAS WHICH PETITIONER PURCHASES FROM
COLORADO INTERSTATE MOVES IN A CONTINUOUS STREAM ACROSS STATE LINES TO
LOCAL DISTRIBUTING COMPANIES IN COLORADO AS WELL AS WYOMING.  IF
PETITIONER IS ENGAGED IN "THE TRANSPORTATION OF NATURAL GAS IN
INTERSTATE COMMERCE" TO THOSE COLORADO TOWNS WITHIN THE MEANING OF SEC.
1(B), ITS WHOLESALE SALES IN COLORADO ARE ALSO SALES "IN INTERSTATE
COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION" AS
THOSE WORDS ARE USED IN SEC. 1(B).  THAT COMMERCE DOES NOT END UNTIL
THE GAS ENTERS THE SERVICE PIPES OF THE DISTRIBUTING COMPANIES. 

MOST OF THE OTHER OBJECTIONS WHICH PETITIONER RAISES TO THE
COMMISSION'S METHOD OF ALLOCATION OF COSTS HAVE BEEN CONSIDERED IN THE
CASES OF COLORADO INTERSTATE GAS CO. V. FEDERAL POWER COMMISSION AND
CANADIAN RIVER GAS CO. V. FEDERAL POWER COMMISSION.  WE NEED NOT REPEAT
WHAT WE SAID THERE.  BUT THERE ARE A FEW DISTINCT PHASES OF THIS CASE
WHICH MUST BE SEPARATELY STATED. 

PETITIONER SAYS THAT THE COMMISSION TREATED IT ALONG WITH CANADIAN
AND COLORADO INTERSTATE AS AN INTEGRATED UNIT FOR PURPOSES OF THE
ALLOCATION OF COSTS.  THE INFERENCE IS THAT THE COMMISSION COMBINED
PETITIONER'S COSTS WITH THOSE OF THE OTHER TWO COMPANIES AND ALLOCATED
THE COMBINED COSTS THREE WAYS.  THAT IS NOT THE FACT.  PETITIONER IS
INDEPENDENT IN MANAGEMENT AND CONTROL FROM THE OTHER TWO.  ITS SYSTEM
WAS NOT CONSTRUCTED AS PART OF CANADIAN'S AND COLORADO INTERSTATE'S
SYSTEM BUT WAS STARTED INDEPENDENTLY AND CONNECTED WITH THE OTHERS AT A
LATER STAGE.  THE COMMISSION RECOGNIZED THAT IN OPERATION THE THREE
COMPANY PROJECT WAS A SINGLE ONE IN THE SENSE THAT AN ALTERATION IN
CANADIAN'S RATES AFFECTED THE REASONABLENESS OF THE RATES OF COLORADO
INTERSTATE AND IN TURN THE REASONABLENESS OF THE RATES OF PETITIONER. 
BUT WHEN IT CAME TO AN ALLOCATION OF COSTS AMONG PETITIONER'S CLASSES
OF BUSINESS THE COMMISSION CONSIDERED PETITIONER'S COSTS ALONE. 

HERE AS IN THE CASES OF CANADIAN AND COLORADO INTERSTATE THE FINDINGS
OF THE COMMISSION LEAVE MUCH TO BE DESIRED.  THE FINDINGS ARE GENERAL
AND INCORPORATE BY REFERENCE THE STAFF EXHIBITS, ON WHICH RELIANCE IS
PUT FOR THE SUBSIDIARY FINDINGS.  BUT IN THIS CASE THERE ARE ADDED
DIFFICULTIES.  THE STAFF USED ONE SYSTEM, THE COMMISSION ANOTHER.  AS
THE COMMISSION SAID, THE STAFF "DEPARTED FROM THE USE OF THE SYSTEM
PEAK DAY FOR ALLOCATING DEMAND (FIXED) COSTS AND COMBINED THE SEPARATE
CLASS PEAKS OF RESALE CUSTOMERS AND OF MAIN LINE INDUSTRIAL
CUSTOMERS."  43 P.U.R. (N.S.)  P. 233.  THE COMMISSION THOUGHT A
DIFFERENT METHOD WOULD BE IN KEEPING WITH PETITIONER'S OPERATIONS.  IT
SAID:  "THE COLORADO PORTLAND CEMENT COMPANY, THE PRINCIPAL MAIN LINE
INDUSTRIAL USER, IS CURTAILED REGULARLY DURING SYSTEM PEAK DAYS.  ITS
DEMAND ON THE SYSTEM PEAK DAY IS, IN OUR OPINION, A PROPER MEASURE OF
ITS PROPORTIONATE SHARE OF DEMAND COSTS THAN ITS HIGHEST OFF-PEAK
DEMAND.  ACCORDINGLY, THE PRINCIPLES AND METHODS OF COST ALLOCATION
PRESENTED BY COMMISSION STAFF ARE ADOPTED WITH THE MODIFICATION THAT
THE COINCIDENT DEMANDS OF ALL CUSTOMERS ON THE SYSTEM PEAK DAY ARE
USED, AND WITH EXCEPTION OF DELIVERIES TO HIGHWAY GAS COMPANY."  43
P.U.R. (N.S.)  P. 234.  WHEN WE READ THAT FINDING AGAINST THE RECORD
THERE ARE AMBIGUITIES WHICH WE ARE UNABLE TO RESOLVE WERE IT OUR
PROVINCE TO DO SO. 

(1)  THE "SYSTEM PEAK DAY" IS FEBRUARY 9, 1939 - THE SAME DAY CHOSEN
FOR CANADIAN AND COLORADO INTERSTATE.  WE KNOW FROM OUR SEARCH OF THE
RECORD THAT IS NOT THE ACTUAL PEAK DAY IN 1939 FOR PETITIONER'S
BUSINESS.  WE ARE TOLD BY THE COMMISSION IN ITS BRIEF THAT IT IS THE
RATIO OF DELIVERIES TO THE REGULABLE AND NON-REGULABLE CUSTOMERS RATHER
THAN TOTAL DELIVERIES THAT DETERMINES THE ALLOCATION OF CAPACITY
COSTS.  BUT THERE ARE NO FINDINGS WHICH INDICATE WHY THE SYSTEM PEAK
DAY FOR OTHER COMPANIES SHOULD BE TAKEN AS THE SYSTEM PEAK DAY FOR THIS
COMPANY.  NOR ARE THERE ANY FINDINGS WHICH INDICATE THAT THE RATIO ON
THE SYSTEM PEAK DAY IS A MORE RELIABLE GUIDE IN THE ALLOCATION OF COSTS
THAN THE RATIO ON THE ACTUAL PEAK DAY OF THIS COMPANY. 

(2)  THE COMMISSION SAYS IT ALLOCATED CAPACITY COSTS ON THE BASIS OF
THE "COINCIDENT DEMANDS OF ALL CUSTOMERS ON THE SYSTEM PEAK DAY."  IT
SAID THAT COLORADO PORTLAND CEMENT CO. IS "CURTAILED REGULARLY DURING
SYSTEM PEAK DAYS" AND THAT ITS "DEMAND" ON THAT DAY IS THE PROPER
MEASURE OF ITS PROPORTIONATE SHARE OF CAPACITY COSTS.  WE ASSUME IT
MEANT BY "COINCIDENT DEMANDS" ON THE SYSTEM PEAK DAY, THE AMOUNT OF GAS
ACTUALLY DELIVERED ON THAT DAY, NOT THE CUSTOMERS' RESPECTIVE NEEDS FOR
GAS ON THAT DAY.  BUT WHEN WE TURN TO THE RECORD THERE ARE
AMBIGUITIES.  THE STAFF EXHIBIT ON WHICH THE COMMISSION APPARENTLY
RELIED DESIGNATES AS ONE CLASSIFICATION THE "MAXIMUM DAY DELIVERIES ON
COLORADO INTERSTATE GAS CO. PEAK DAY - THURS., FEB. 9, 1939."  UNDER
THAT HEADING WE COMPUTE 1,777 MCF TO DIRECT-SALE CUSTOMERS AND 9,009
MCF TO RESALE CUSTOMERS ON FEBRUARY 9, 1939.  THE COMMISSION IN ITS
BRIEF TELLS US THAT THAT WAS THE BASIS ON WHICH IT ALLOCATED CAPACITY
COSTS, VIZ. 83.5 PER CENT TO THE RESALE GAS, 16.5 PER CENT TO THE
DIRECT-SALE GAS.  BUT THERE IS EVIDENCE IN THE RECORD THAT THE DIRECT
SALE CUSTOMERS RECEIVED ON FEBRUARY 9, 1939 NOT 1,777 MCF BUT ONLY 522
MCF.  IF WE USE 522 MCF RATHER THAN 1,777 MCF IN OUR COMPUTATIONS WE
SHIFT TO THE INTERSTATE WHOLESALE SALES ALMOST $21,000 ADDITIONAL
COSTS.  NOW THE NET RATE DECREASE ORDERED BY THE COMMISSION IN THIS
CASE AMOUNTED TO $21,000.  HENCE THAT NET DECREASE SUBSTANTIALLY
DISAPPEARS IF WE TAKE 522 MCF RATHER THAN 1,777 MCF AS THE AMOUNT OF
DIRECT SALES ON FEB. 9, 1939.  THE CHOICE OF THE LOWER FIGURE WOULD
THUS BE FATAL TO THE COMMISSION'S CASE.    WE DO NOT KNOW WHY THE LOWER
FIGURE WAS REJECTED.  THERE ARE NO FINDINGS TO GUIDE US.  IN THE RECORD
THERE IS TESTIMONY WHICH MAY SUFFICE AS A PARTIAL RECONCILIATION OF THE
DIFFERENCE AND WHICH CASTS SOME DOUBTS ON THE ACCURACY OF THE LOWER
FIGURE.  BUT WE HAVE BEEN UNABLE COMPLETELY TO RECONCILE THE
DIFFERENCE.  WE DO KNOW FROM A READING OF THE RECORD THAT THE STAFF
EXHIBIT FROM WHICH THE 1,777 MCF ITEM WAS OBTAINED WAS BASED AT LEAST
IN PART ON AVERAGES OR ESTIMATES, NOT ON ACTUAL DELIVERIES.  IT IS NOT
CLEAR WHETHER 1,777 MCF RESTED ON ESTIMATES OR REFLECTED ACTUAL
DELIVERIES BY PETITIONER ON FEB. 9, 1939.  THE CAPTION "MAXIMUM DAY
DELIVERIES ON COLORADO INTERSTATE GAS CO. PEAK DAY - THURS., FEB. 9,
1939" IS AMBIGUOUS.  IT MAY MEAN THAT THE GAS DELIVERED TO PETITIONER
BY COLORADO INTERSTATE ON THAT DAY WAS APPORTIONED AMONG THE SEVERAL
CLASSES OF CUSTOMERS ACCORDING TO THEIR ACTUAL USE ON THAT DAY.  IT MAY
MEAN ACTUAL DELIVERIES BY PETITIONER DURING THAT DAY.  THE FIGURES MAY
OR MAY NOT BE THE SAME. 

THE REVIEW WHICH CONGRESS HAS PROVIDED FOR THESE RATE ORDERS IS
LIMITED.  SEC. 19(B) SAYS THAT THE "FINDING OF THE COMMISSION AS TO THE
FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE."  BUT
WE MUST FIRST KNOW WHAT THE "FINDING" IS BEFORE WE CAN GIVE IT THAT
CONCLUSIVE WEIGHT.  WE HAVE REPEATEDLY EMPHASIZED THE NEED FOR CLARITY
AND COMPLETENESS IN THE BASIC OR ESSENTIAL FINDINGS ON WHICH
ADMINISTRATIVE ORDERS REST.  FLORIDA V. UNITED STATES, 282 U.S. 194,
215; UNITED STATES V. BALTIMORE & OHIO R. CO., 293 U.S. 454, 464;
UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294 U.S. 499, 504-505,
510-511; UNITED STATES V. CAROLINA CARRIERS CORP., 315 U.S. 475, 488
489.  THEIR ABSENCE CAN ONLY CLOG THE ADMINISTRATIVE FUNCTION AND ADD
TO THE DELAYS IN RATE-MAKING.  WE CANNOT DISPENSE WITH THEM FOR
CONGRESS HAS PROVIDED THE STANDARDS FOR JUDICIAL REVIEW UNDER THIS
ACT.  SEC. 19(B).  THE COURTS CANNOT PERFORM THE FUNCTION WHICH
CONGRESS ASSIGNED TO THEM IN ABSENCE OF ADEQUATE FINDINGS.  NOR ARE
THEY AUTHORIZED UNDER SEC. 19(B) TO MAKE FINDINGS AND SUBSTITUTE THEM
FOR THOSE OF THE COMMISSION. 

WE THINK IT IS PLAIN THAT $98,000 OF THE RATE DECREASE ORDERED BY THE
COMMISSION IN THIS CASE IS VALID SINCE IT REFLECTS THE REDUCTION IN THE
RATES OF COLORADO INTERSTATE FROM WHOM PETITIONER PURCHASES PRACTICALLY
ALL OF ITS GAS.  BUT THE BALANCE OF THE $119,000 RATE DECREASE WHICH
WAS ORDERED, VIZ. $21,000, IS SO SHROUDED IN DOUBT THAT FURTHER
FINDINGS BY THE COMMISSION ARE NECESSARY. 

ACCORDINGLY, WE AFFIRM THE JUDGMENT BELOW INSOFAR AS IT SUSTAINED THE
ORDER OF THE COMMISSION DIRECTING PETITIONER TO REDUCE ITS RATES BY
$98,000.  AS TO THE BALANCE OF THE RATE REDUCTION, WE REVERSE THE
JUDGMENT BELOW, SET ASIDE THE ORDER OF THE COMMISSION, AND REMAND THE
CAUSE FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  SEE
SEC. 19(B).  IT IS SO ORDERED. 

FN1  SEC. 7(C) PROVIDES IN PART: 

"NO NATURAL-GAS COMPANY SHALL UNDERTAKE THE CONSTRUCTION OR EXTENSION
OF ANY FACILITIES FOR THE TRANSPORTATION OF NATURAL GAS TO A MARKET IN
WHICH NATURAL GAS IS ALREADY BEING SERVED BY ANOTHER NATURAL-GAS
COMPANY, OR ACQUIRE OR OPERATE ANY SUCH FACILITIES OR EXTENSIONS
THEREOF, OR ENGAGE IN TRANSPORTATION BY MEANS OF ANY NEW OR ADDITIONAL
FACILITIES, OR SELL NATURAL GAS IN ANY SUCH MARKET, UNLESS AND UNTIL
THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE COMMISSION A CERTIFICATE
THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY REQUIRE OR
WILL REQUIRE SUCH NEW CONSTRUCTION OR OPERATION OF ANY SUCH FACILITIES
OR ESTENSIONS THEREOF:..." 

A NATURAL-GAS COMPANY IS DEFINED IN SEC. 2(6) AS A "PERSON ENGAGED IN
THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE, OR THE SALE
IN INTERSTATE COMMERCE OF SUCH GAS FOR RESALE." 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, MR. JUSTICE REED, AND MR.
JUSTICE FRANKFURTER ARE OF THE OPINION THAT THE CASE SHOULD BE REMANDED
TO THE COMMISSION FOR SEPARATE ALLOCATION OF INVESTMENT AND OPERATING
COST BETWEEN THE REGULABLE AND NONREGULABLE PROPERTIES, AS WELL AS FOR
THE CLARIFICATION OF FINDINGS DIRECTED IN THE OPINION.  THEY AGREE THAT
THE DELIVERIES TO WHOLESALERS IN COLORADO ARE IN INTERSTATE COMMERCE. 
..END :
















PANHANDLE CO. V. POWER COMM'N, 324 U.S. 635 


NO. 296.  ARGUED JANUARY 29, 1945.  - DECIDED APRIL 2, 1945.  - 143 F.2D
488, AFFIRMED. 


1.  UNDER SEC. 19(B) OF THE NATURAL GAS ACT, PROVIDING FOR REVIEW OF
ORDERS OF THE COMMISSION BY THE CIRCUIT COURTS OF APPEALS, AN OBJECTION
THAT THE NATURAL GAS COMPANY IS NOT LOCATED AND DOES NOT HAVE ITS
PRINCIPAL PLACE OF BUSINESS IN THE CIRCUIT IN WHICH THE PROCEEDING WAS
BROUGHT GOES NOT TO THE JURISDICTION BUT ONLY TO THE VENUE, AND IS TOO
LATE WHEN RAISED FOR THE FIRST TIME AFTER JUDGMENT.  P. 638. 

2.  IN THE EXCEPTIONAL CIRCUMSTANCES OF THIS CASE, THE FEDERAL POWER
COMMISSION, IN DETERMINING REDUCTIONS IN INTERSTATE WHOLESALE RATES OF
A NATURAL GAS COMPANY WHOSE BUSINESS CONSISTED OF DIRECT INDUSTRIAL
SALES (UNREGULATED) AS WELL AS INTERSTATE WHOLESALES (REGULATED), DID
NOT EXCEED THE LIMITS OF ITS DISCRETION WHEN IT ALLOCATED TO THE
REGULATED BUSINESS ALL EXCESS EARNINGS OF THE ENTIRE BUSINESS OVER 6
1/2 PER CENT.  P. 646. 

3.  IT WAS NOT ERROR FOR THE COMMISSION TO CONSTRUCT A NATURAL GAS
COMPANY'S RATE BASE ON THE ACTUAL LEGITIMATE COST OF THE COMPANY'S
PROPERTY, OR TO INCLUDE IN THE RATE BASE THE COMPANY'S PRODUCING
PROPERTIES AND GATHERING FACILITIES.  CANADIAN RIVER GAS CO. V. FEDERAL
POWER COMM'N, ANTE, P. 581.  P. 648. 

4.  HAVING FAILED TO OBJECT IN ITS APPLICATION FOR REHEARING BEFORE
THE COMMISSION TO THE INCLUSION OF ITS PRODUCING PROPERTIES AND
GATHERING FACILITIES IN THE RATE BASE, PETITIONER IS PRECLUDED BY SEC.
19(B) OF THE ACT FROM ATTACKING THE ORDER OF THE COMMISSION ON THE
GROUND THAT THEY ARE INCLUDED.  P. 649. 

5.  SINCE THE ISSUE IN A RATE CASE UNDER THE NATURAL GAS ACT IS
WHETHER THE RATE FIXED IS "JUST AND REASONABLE," THE QUESTION ON REVIEW
IS NOT THE METHOD OF VALUATION BUT THE END RESULT OBTAINED.  P. 649. 

6.  UPON THE UNDISPUTED FACTS OF THIS CASE, THE COURT CAN NOT SAY
THAT THE RATE OF RETURN ALLOWED BY THE COMMISSION IS NOT COMMENSURATE
WITH THE RISKS, THAT CONFIDENCE IN THE COMPANY'S FINANCIAL INTEGRITY
HAS BEEN IMPAIRED, OR THAT THE COMPANY'S ABILITY TO ATTRACT CAPITAL, TO
MAINTAIN ITS CREDIT, AND TO OPERATE SUCCESSFULLY AND EFFICIENTLY HAS
BEEN IMPEDED.  FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S.
591.  P. 650. 

PANHANDLE EASTERN PIPE LINE CO. ET AL. V. FEDERAL POWER COMMISSION ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 323 U.S. 808, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PANHANDLE EASTERN PIPE LINE CO. (WHOM WE WILL CALL PANHANDLE EASTERN)
OWNS PROPERTIES WHICH CONSTITUTE A NATURAL GAS PRODUCTION,
TRANSPORTATION, AND MARKETING SYSTEM.  FN1  THE SYSTEM EXTENDS FROM GAS
FIELDS IN TEXAS, OKLAHOMA AND KANSAS THROUGH MISSOURI, ILLINOIS,
INDIANA AND OHIO AND INTO MICHIGAN.  FN2  THE CITY OF DETROIT AND THE
COUNTY OF WAYNE, MICHIGAN, FILED A COMPLAINT WITH THE FEDERAL POWER
COMMISSION ALLEGING THAT PANHANDLE EASTERN'S RATES ON GAS SOLD TO A
DISTRIBUTING COMPANY IN MICHIGAN FOR RESALE THERE WERE UNJUST AND
UNREASONABLE.  THE COMMISSION ON ITS OWN MOTION INSTITUTED AN
INVESTIGATION UNDER THE NATURAL GAS ACT OF 1938, 52 STAT. 821, 15
U.S.C. SEC. 717, OF ALL OF THE INTERSTATE WHOLESALE RATES OF PANHANDLE
EASTERN.  FN3  FOLLOWING EXTENDED HEARINGS THE COMMISSION ENTERED AN
INTERIM ORDER, HERE UNDER REVIEW, FINDING PETITIONER'S INTERSTATE
WHOLESALE RATES TO BE EXCESSIVE AND REQUIRING PETITIONER TO REDUCE THEM
ON AND AFTER NOVEMBER 1, 1942, AS TO REFLECT, WHEN APPLIED TO
PETITIONER'S 1941 TRANSPORTATION AND SALES, A REDUCTION OF NOT LESS
THAN $5,094,384 PER ANNUM BELOW THE 1941 CONSOLIDATED GROSS OPERATING
REVENUES OF $17,789,573.  SEE 45 P.U.R. (N.S.)  203, 223.  THAT ORDER
WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT,
ONE JUDGE DISSENTING IN PART.  143 F.2D 488.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED LIMITED TO THE TWO
QUESTIONS WHICH WE WILL DISCUSS.  BUT BEFORE WE REACH THEM WE MUST
DISPOSE OF A CHALLENGE MADE BY THE CITY OF CLEVELAND, AS AMICUS CURIAE,
TO THE JURISDICTION OF THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT OVER THE SUBJECT MATTER OF THIS LITIGATION.  PANHANDLE EASTERN
SOUGHT REVIEW IN THAT COURT OF THE COMMISSION'S ORDER UNDER SEC. 19(B)
OF THE ACT WHICH SO FAR AS MATERIAL HERE PROVIDES: 

"ANY PARTY TO A PROCEEDING UNDER THIS CHAPTER AGGRIEVED BY AN ORDER
ISSUED BY THE COMMISSION IN SUCH PROCEEDING MAY OBTAIN A REVIEW OF SUCH
ORDER IN THE CIRCUIT COURT OF APPEALS OF THE UNITED STATES FOR ANY
CIRCUIT WHEREIN THE NATURAL-GAS COMPANY TO WHICH THE ORDER RELATES IS
LOCATED OR HAS ITS PRINCIPAL PLACE OF BUSINESS, OR IN THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA  ..." 

THE PETITION FOR REVIEW STATED THAT PETITIONER HAD ITS PRINCIPAL
PLACE OF BUSINESS IN KANSAS CITY, MISSOURI.  THAT WAS NOT DENIED BY THE
COMMISSION AND AT NO TIME PRIOR TO THE ENTRY OF THE JUDGMENT AFFIRMING
THE COMMISSION'S ORDER WAS THE JURISDICTION OF THE CIRCUIT COURT OF
APPEALS CHALLENGED.  AFTER THE JUDGMENT OF AFFIRMANCE HAD BEEN ENTERED,
HOWEVER, THE CITY OF CLEVELAND FILED A MOTION IN THE CIRCUIT COURT OF
APPEALS FOR LEAVE TO INTERVENE AND CHALLENGED THE JURISDICTION OF THAT
COURT ON THE GROUND THAT PETITIONER DID NOT HAVE ITS PRINCIPAL PLACE OF
BUSINESS IN THAT CIRCUIT.  THE SAME OBJECTION IS PRESSED HERE. 

IF THE OBJECTION IS TO THE JURISDICTION OF THE COURT, IT DOES NOT
COME TOO LATE.  INDUSTRIAL ADDITION ASSN. V. COMMISSIONER, 323 U.S.
310.  BUT WE THINK IT GOES TO VENUE, NOT TO JURISDICTION.  WE READ SEC.
19(B) TO INVEST ALL INTERMEDIATE FEDERAL COURTS WITH THE POWER TO
REVIEW ORDERS OF THE COMMISSION, PROVIDED, HOWEVER, THAT IF A CIRCUIT
COURT OF APPEALS, RATHER THAN THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA, IS CHOSEN, THE PARTIES MAY OBJECT THAT THE PARTICULAR CIRCUIT
LACKS THE SPECIFIED QUALIFICATIONS.  VENUE RELATES TO THE CONVENIENCE
OF LITIGANTS.  NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165.  THE
PROVISIONS OF SEC. 19(B) PLAINLY ARE OF THAT CHARACTER.  REVIEW IN THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA WHERE THE COMMISSION MUST
MAINTAIN ITS PRINCIPAL OFFICE AND HOLD ITS GENERAL SESSIONS (46 STAT.
797, 16 U.S.C. SEC. 792) IS CONVENIENT FOR THE COMMISSION.  REVIEW IN
ANY CIRCUIT WHERE THE NATURAL GAS COMPANY IS LOCATED OR HAS ITS
PRINCIPAL PLACE OF BUSINESS IS DESIGNED TO SERVE THE CONVENIENCE OF THE
COMPANY.  THE GENERAL GRANT OF AUTHORITY IN SEC. 19(B) TO ALL THE
COURTS OF APPEAL SUGGESTS THAT THE QUESTION OF WHICH ONE SHOULD
EXERCISE THE POWER IN A PARTICULAR CASE IS A QUESTION OF VENUE.  NONE
OF THE RESPONDENTS OBJECTED AT ANY TIME TO THE VENUE OF THE COURT
BELOW.  THE RIGHT TO HAVE A CASE HEARD IN THE COURT OF PROPER VENUE MAY
BE LOST UNLESS SEASONABLY ASSERTED.  INDUSTRIAL ADDITION ASSN. V.
COMMISSIONER, SUPRA.  IT MAY BE WAIVED BY ANY PARTY, INCLUDING THE
GOVERNMENT.  PEORIA & P.U.R. CO. V. UNITED STATES, 263 U.S. 528, 535
536; INDUSTRIAL ADDITION ASSN. V. COMMISSIONER, SUPRA.  THE OBJECTION
OF THE CITY OF CLEVELAND, WHICH CAME AFTER JUDGMENT HAD BEEN RENDERED,
CAME TOO LATE.  CF. UNITED STATES V. CALIFORNIA CANNERIES, 279 U.S.
553, 556.  HENCE, WE NEED NOT DECIDE WHETHER THE SUIT WAS BROUGHT IN
THE PROPER CIRCUIT. 

SEGREGATION OF THE REGULATED AND UNREGULATED BUSINESSES.  PANHANDLE
EASTERN MAKES DIRECT INDUSTRIAL SALES AS WELL AS SALES TO DISTRIBUTING
COMPANIES FOR RESALE.  THE COMMISSION MADE NO SEGREGATION OR SEPARATION
OF THE PROPERTIES USED IN THESE TWO CLASSES OF BUSINESS.  NOR DID IT
MAKE AN ALLOCATION OF COSTS BETWEEN THE REGULATED AND UNREGULATED
PHASES OF THE BUSINESS AS IT DID IN COLORADO INTERSTATE GAS CO. V.
FEDERAL POWER COMMISSION, CANADIAN RIVER GAS CO. V. FEDERAL POWER
COMMISSION, AND COLORADO-WYOMING GAS CO. V. FEDERAL POWER COMMISSION,
ANTE, PP. 581, 626.  THE REASONS WHICH THE COMMISSION ADVANCED FOR ITS
FAILURE TO MAKE ANY ALLOCATION ARE SO CRUCIAL TO THE DISPOSITION OF THE
CASE THAT WE QUOTE FROM THE OPINION: 

"UPON THE RECORD BEFORE US, WE CONSIDER IT UNNECESSARY TO MAKE AN
ALLOCATION OF THE RESPONDENTS' BUSINESS AS BETWEEN SALES FOR RESALE AND
DIRECT SALES.  THE DIRECT SALES ARE MADE TO NINETEEN INDUSTRIAL
CUSTOMERS ON AN INTERRUPTIBLE BASIS AND AT PRICES FIXED IN COMPETITION
WITH OTHER FUELS. 

"ACCORDING TO RESPONDENTS' OWN EVIDENCE, NO CAPACITY HAS EVER BEEN
CONSTRUCTED OR PROVIDED IN THEIR GAS PLANT FOR THESE DIRECT INDUSTRIAL
CUSTOMERS.  IT IS EQUALLY CLEAR THAT DELIVERIES ARE MADE TO THEM ONLY
WHEN THERE IS AVAILABLE EXCESS OFF-PEAK CAPACITY NOT REQUIRED BY THE
OTHER WHOLESALE CUSTOMERS.  AS EVIDENCE OF THIS FACT, IN 1941 THE
VOLUME OF GAS SOLD TO THE DIRECT INDUSTRIAL CUSTOMERS AMOUNTED TO 13.2
PER CENT OF THE TOTAL SYSTEM SALES, WHEREAS ON THE SYSTEM PEAK DAY OF
THE 1941-1942 WINTER THE DIRECT INDUSTRIAL SALES CONSTITUTED ONLY 2.69
PER CENT OF THE TOTAL DELIVERIES, DUE TO INTERRUPTIONS AND CURTAILMENTS
BROUGHT ABOUT BY THE NECESSITY FOR MEETING THE WHOLESALE CUSTOMER
REQUIREMENTS. 

"TESTIMONY OF RESPONDENTS' WITNESSES DISCLOSES THAT ONLY $128,848 OF
THE ENTIRE INVESTMENT IN PLANT (LESS THAN ONE-SIXTH OF ONE PER CENT) IS
USED EXCLUSIVELY IN THE SERVICE OF THE DIRECT INDUSTRIALS.  MOREOVER,
THE RESPONDENTS THEMSELVES TREAT THEIR ENTIRE BUSINESS AS A UNIT AND
MAKE NO SEGREGATION OF COSTS OR PROFITS ON THEIR BOOKS AS BETWEEN THE
TWO CLASSES OF SALES.  INDEED, PANHANDLE EASTERN'S PRESIDENT TESTIFIED
QUITE CLEARLY ON CROSS-EXAMINATION THAT ANY ATTEMPT TO ALLOCATE WOULD
BE 'THEORETICAL,' 'UNREALISTIC,' AND 'NOT PRACTICAL' BECAUSE OF THE
UNIFIED CHARACTER OF THE BUSINESS. 

"DELIVERIES TO THE DIRECT INDUSTRIALS ARE MADE ONLY WHEN THE PLANT IS
NOT FULLY USED IN SERVING THE REQUIREMENTS OF THE WHOLESALE BUSINESS,
AND ARE CURTAILED OR INTERRUPTED WHEN THE CAPACITY IS REQUIRED BY THE
WHOLESALE CUSTOMERS.  IT IS APPARENT THAT THE INCIDENTAL DIRECT
INDUSTRIAL BUSINESS IS IN REALITY A BY-PRODUCT OF THE WHOLESALE
BUSINESS, COMPARABLE TO THE RESPONDENTS' GASOLINE EXTRACTION BUSINESS. 
ALL PARTIES ARE AGREED THAT THE EXPENSES AND REVENUES IN CONNECTION
WITH THE SALE OF GASOLINE EXTRACTED FROM THE NATURAL GAS SHOULD BE
TREATED AS AN INTEGRAL PART OF THE RESPONDENTS' ENTIRE OPERATIONS. 
THUS, IT IS MANIFEST FROM THE EVIDENCE THAT THE DIRECT INDUSTRIAL SALES
ARE PURELY INCIDENTAL TO THE MAIN OR PRINCIPAL ENTERPRISE, VIZ.:  THE
WHOLESALE BUSINESS OF THE RESPONDENTS."  45 P.U.R. (N.S.)  P. 218. 

PETITIONER CONTENDS THAT THESE REASONS DO NOT JUSTIFY THE FAILURE OF
THE COMMISSION TO MAKE A FORMAL ALLOCATION EITHER OF THE PROPERTY OR
THE COSTS BETWEEN THE REGULATED AND UNREGULATED BUSINESS.  IT SAYS THAT
THE DIRECT SALES ARE BEYOND THE JURISDICTION OF THE COMMISSION EVEN
THOUGH THEY ARE COMPARATIVELY SMALL.  IT ASSERTS THAT THE FACT THAT THE
DIRECT SALES ARE ON AN INTERRUPTIBLE BASIS MERELY EMPHASIZES THE
RELATIVELY SMALL AMOUNT OF THE COST OF CONSTRUCTION AND OPERATION
ATTRIBUTABLE TO SUCH SALES.  IT SAYS THAT NO WAIVER OF THE STATUTORY
RIGHT TO HAVE THE DIRECT SALES FREE FROM REGULATION CAN BE INFERRED AND
THAT IN ANY EVENT THE COMMISSION'S JURISDICTION CANNOT BE ENLARGED BY
WAIVER.  AND IT CONTENDS THAT THE COMMISSION'S FINDING THAT THE DIRECT
INDUSTRIAL BUSINESS IS "IN REALITY A BY-PRODUCT OF THE WHOLESALE
BUSINESS" IS NOT SUPPORTED IN REASON OR IN FACT. 

WE AGREE THAT THE COMMISSION MUST MAKE A SEPARATION OF THE REGULATED
AND UNREGULATED BUSINESS WHEN IT FIXES THE INTERSTATE WHOLESALE RATES
OF A COMPANY WHOSE ACTIVITIES EMBRACE BOTH.  OTHERWISE THE PROFITS OR
LOSSES, AS THE CASE MAY BE, OF THE UNREGULATED BUSINESS WOULD BE
ASSIGNED TO THE REGULATED BUSINESS AND THE COMMISSION WOULD TRANSGRESS
THE JURISDICTIONAL LINES WHICH CONGRESS WROTE INTO THE ACT.  FN4  THE
COMMISSION RECOGNIZES THIS NECESSITY.  AS IT STATED IN RE CITIES
SERVICE GAS CO., 50 P.U.R. (N.S.)  65, 89:  "THE COMPANY'S FACILITIES
AND OPERATIONS ARE DEVOTED IN PART TO NATURAL GAS SERVICE WHICH IS NOT
SUBJECT TO OUR JURISDICTION.  THIS SERVICE CONSISTS PRINCIPALLY OF GAS
SALES MADE DIRECTLY TO LARGE INDUSTRIAL CONSUMERS.  THE NECESSITY
ARISES, THEREFORE, FOR MAKING AN ALLOCATION OF COSTS AS BETWEEN THE
JURISDICTIONAL AND NON-JURISDICTIONAL SALES."  THE QUESTION IS WHETHER
A FORMAL ALLOCATION WAS NECESSARY UNDER THE EXCEPTIONAL CIRCUMSTANCES
OF THIS CASE. 

WE STATE THE QUESTION THAT NARROWLY BECAUSE THE DISPUTE IN THIS CASE
REFLECTS NOT A REJECTION BY THE COMMISSION OF THE PRINCIPLE OF
ALLOCATION BUT A DISAGREEMENT OVER THE PROPRIETY OF THE PROCEDURE
FOLLOWED HERE. 

WHAT THE COMMISSION DID WAS TO ALLOCATE TO THE INTERSTATE WHOLESALE
BUSINESS ALL OF THE EARNINGS FROM THE ENTIRE BUSINESS IN EXCESS OF A 6
1/2 PER CENT RETURN.  INSOFAR AS THAT PROCEDURE ALLOCATED TO THE
INTERSTATE WHOLESALE BUSINESS ANY EARNINGS FROM THE DIRECT INDUSTRIAL
SALES IN EXCESS OF 6 1/2 PER CENT, IT IS SAID TO BE JUSTIFIED BY THE
USE WHICH THE DIRECT INDUSTRIAL BUSINESS MADE OF THE MAIN TRANSMISSION
LINE AND ITS FACILITIES.  IF THAT WAS UNFAIR, THE ORDER MUST BE SET
ASIDE.  IF IT WAS FAIR, NO REVERSIBLE ERROR IS SHOWN. 

A WITNESS FOR PETITIONER TESTIFIED AT THE HEARING THAT UNDER
PETITIONER'S ALLOCATION OF COSTS THE UNREGULATED BUSINESS HAS THE USE
OF FACILITIES OF THE COMPANY WITHOUT ANY CHARGE.  HE TESTIFIED THAT
THERE SHOULD BE A CHARGE AGAINST THE UNREGULATED BUSINESS FOR THE USE
OF THAT PROPERTY.  ANOTHER WITNESS FOR PETITIONER STATED THAT THE
COMPANY DID NOT MAKE ANY ALLOCATION BETWEEN THE REGULATED AND
UNREGULATED BUSINESS - "THAT IS, ALLOCATION OF JOINTLY USED ASSETS" -
IN DETERMINING WHAT WOULD BE CHARGED TO THE UNREGULATED SALES.  HE
STATED, "IT MAY BE HERESY TO SAY SO BUT WE TRY TO CHARGE OUR
NONREGULATED CUSTOMERS ALL THE TRAFFIC WILL BEAR."  IT WAS CONCEDED
THAT THE COMPANY ATTEMPTS NO ALLOCATION IN THE CONDUCT OF ITS
BUSINESS.  THE BUSINESS IS OPERATED AS A UNIT.  AND ONE OF PETITIONER'S
OFFICERS TESTIFIED: 

"Q.  THAT IS, ANY ATTEMPT TO ALLOCATE RETURN, AS BETWEEN REGULATED
BUSINESS AND UNREGULATED BUSINESS:  IS THAT WHAT YOU MEANT WAS
UNREALISTIC? 

"A.  THAT IS CORRECT  ...  IF YOU ARE GOING TO ALLOCATE IT
THEORETICALLY YOU SHOULD ALLOCATE IT ON THE BASIS OF THE INVESTMENT AND
THE EXPENSES INCIDENT TO EACH PART OF THE BUSINESS. 

"Q.  BUT IT IS THEORETICAL? 

"A.  THAT IS CORRECT. 

"Q.  AND NOT PRACTICAL? 

"A.  THAT IS WHAT I AM TRYING TO SAY." 

PETITIONER PRESENTED EVIDENCE SHOWING THAT IN THE TEST YEAR 91.57 PER
CENT OF ITS TOTAL REVENUES, OR $16,289,045, WAS RECEIVED FROM ITS
WHOLESALE SALES AND 8.43 PER CENT, OR $1,500,527, WAS RECEIVED FROM ITS
DIRECT INDUSTRIAL SALES.  IT PRESENTED A STUDY SHOWING TOTAL OPERATING
EXPENSES OF ABOUT $7,900,000(NOT INCLUDING FEDERAL INCOME TAXES AND
RETURN) AND ASSIGNING $499,699 TO THE DIRECT INDUSTRIAL SALES.  THUS AN
APPARENT PROFIT OF $1,000,828 BEFORE INCOME TAXES WAS SHOWN FOR THE
DIRECT INDUSTRIAL SALES.  BUT THAT STUDY DID NOT ALLOCATE ANY OF THE
ANNUAL DEPRECIATION EXPENSE OF THE MAIN TRANSMISSION LINE ($2,238,589)
TO THE DIRECT INDUSTRIAL SALES.  OF THE $633,270 AD VALOREM TAXES ON
TRANSMISSION LINES, ONLY $1,738 APPLICABLE TO THE LATERALS USED
EXCLUSIVELY FOR DIRECT INDUSTRIAL SALES WERE ALLOCATED TO THEM.  NONE
OF THE MAIN TRANSMISSION LINE OPERATING AND MAINTENANCE COSTS WAS
CHARGED TO THE DIRECT INDUSTRIAL SALES. 

PETITIONER RECOGNIZED THE UNFAIRNESS OF ATTRIBUTING TO THE DIRECT
INDUSTRIAL SALES ALL OF THE APPARENT PROFIT OF $1,000,828.  ONE OF
PETITIONER'S WITNESS TESTIFIED:    "Q.  IS THERE ANY ENGINEERING BASIS
FOR A DIVISION, FROM AN ENGINEERING STANDPOINT? 

"A.  NOT AS AN ENGINEERING MATTER.  I DO NOT KNOW OF ANY BASIS.  AS A
BUSINESS MATTER, I THINK THERE ARE WAYS IN WHICH IT COULD BE FAIRLY
DECIDED.  I THINK IT REQUIRES SOME JUDGMENT BASED UPON BUSINESS
EXPERIENCE TO MAKE A FAIR ALLOCATION OF IT BUT THERE IS A LITTLE OVER A
MILLION DOLLARS, SOME PORTION OF WHICH COULD, IN ALL FAIRNESS, BE SET
ASIDE AS A CHARGE AGAINST OPERATIONS ON THE NON-REGULATED SALES AND A
CREDIT AGAINST OPERATIONS ON THE REGULATED SALES."  HE WENT ON TO
INDICATE WHAT HE THOUGHT A FAIR ALLOCATION WOULD BE:    "A. IT IS MY
OPINION THAT THAT $1,000,828.98 SHOULD BE DIVIDED FIFTY-FIFTY. 

"Q.  WHY? 

"A.  IT IS JUST MY JUDGMENT AS A BUSINESSMAN THAT THAT WOULD BE A
FAIR ALLOCATION OF IT. 

"Q.  YOU MEAN FIFTY-FIFTY AS BETWEEN REGULATED AND NON-REGULATED
BUSINESS? 

"A.  THAT IS CORRECT.  I THINK THAT WOULD BE A FAIR ALLOCATION. 

"Q.  THAT IS A BUSINESS JUDGMENT ESTIMATE, NOT A MATHEMATICAL
ESTIMATE? 

"A.  THAT IS RIGHT.  IN THAT WAY, THIS NON-REGULATED BUSINESS HAS
CONTRIBUTED HALF A MILLION DOLLARS A YEAR TOWARDS THE REDUCTION IN COST
OF THE REGULATED BUSINESS AND IF IT DOES NOT CONTRIBUTE SOMETHING, I DO
NOT THINK THERE IS ANY JUSTIFICATION FOR HAVING THE BUSINESS." 

PETITIONER REQUESTED THE COMMISSION TO FIND THAT IT HAD BUILT NO
CAPACITY FOR ITS DIRECT INDUSTRIAL SALES WHICH WERE "INCREMENTAL" IN
NATURE AND THAT IT WAS REASONABLE TO ALLOCATE "50 PER CENT OF THE NET
EARNINGS FROM NONREGULATED SALES AS A CREDIT TO NET EARNINGS FROM
REGULATED SALES, AS COMPENSATION FOR THE TEMPORARY USE OF SUCH
FACILITIES PROVIDED FOR REGULATED SALES BUT USED FROM TIME TO TIME IN
TRANSPORTING THE GAS FOR DIRECT, INTERRUPTIBLE, NONREGULATED SALES,
WHEN NOT REQUIRED FOR REGULATED SALES."  PETITIONER ASSERTS THAT IT
ALSO REQUESTED THE COMMISSION TO MAKE A SEGREGATION OF THE PROPERTIES
USED IN THE TWO CLASSES OF BUSINESS.  NO SUCH REQUEST, HOWEVER, WAS
INCLUDED IN THE PETITION FOR REHEARING.  AT THAT STAGE THE PETITIONER
MERELY ASSERTED THAT THE COMMISSION ERRED (1) IN TAKING THE PROCEEDS
FROM THE DIRECT INDUSTRIAL SALES INTO CONSIDERATION IN DETERMINING THE
AMOUNT OF ITS PROFITS AND IN ORDERING THE RATE REDUCTION; AND (2) IN
FAILING REASONABLY TO ALLOCATE PETITIONER'S EARNINGS BETWEEN REGULATED
SALES AND UNREGULATED SALES.  THAT PRECLUDES AN ATTACK IN THE COURTS ON
THE COMMISSION'S ORDER FOR FAILURE TO MAKE A SEGREGATION OF PROPERTY. 
FOR SEC. 19(B) OF THE ACT PROVIDES THAT "NO OBJECTION TO THE ORDER OF
THE COMMISSION SHALL BE CONSIDERED BY THE COURT UNLESS SUCH OBJECTION
SHALL HAVE BEEN URGED BEFORE THE COMMISSION IN THE APPLICATION FOR
REHEARING UNLESS THERE IS REASONABLE GROUND FOR FAILURE SO TO DO."  NO
SUCH EXCUSE HAS BEEN TENDERED. 

ON THESE FACTS WE CANNOT SAY THAT THE COMMISSION TRANSGRESSED THE
JURISDICTIONAL REQUIREMENTS OF THE ACT WHEN IT FAILED TO MAKE A FORMAL
ALLOCATION OF COSTS OR OF PROPERTY.  ALL AGREED THAT AN ALLOCATION ON
THE BASIS OF INVESTMENT OR COSTS WOULD BE IMPRACTICAL.  ALL AGREED THAT
SOME DIVISION OF THE APPARENT PROFIT FROM THE DIRECT INDUSTRIAL
BUSINESS HAD TO BE MADE.  ALL AGREED THAT THE FAIR DIVISION WAS A
MATTER OF JUDGMENT, NOT MATHEMATICS.  IN VIEW OF THOSE CONCESSIONS BY
PETITIONER, THE MANNER IN WHICH IT CONDUCTED ITS BUSINESS, ITS FAILURE
TO INSIST ON A SEGREGATION OF PROPERTY IN ITS PETITION FOR REHEARING,
AND ITS OWN FAILURE TO KEEP ACCOUNTS WHICH REFLECTED A SEGREGATION OF
THE PROPERTIES OR AN ALLOCATION OF COSTS AMONG THE TWO CLASSES OF
BUSINESS, WE DO NOT THINK IT CAN NOW BE ASSERTED THAT THE COMMISSION
ERRED IN FORSAKING A FORMULA AND USING ITS INFORMED JUDGMENT INSTEAD. 

WE DO NOT MEAN TO IMPLY THAT SUCH CONCESSIONS WOULD WARRANT A
DEPARTURE OF THE COMMISSION FROM THE STATUTORY SCHEME OF REGULATION. 
THE ISSUE IS A MUCH NARROWER ONE.  THE COMMISSION DID NOT UNDERTAKE TO
FIX INDUSTRIAL RATES.  THE COMMISSION, AS WAS ITS DUTY, MERELY
DETERMINED WHAT EARNINGS WERE PROPERLY ALLOCABLE TO THE UNREGULATED
BUSINESS.  PETITIONER DISAGREES WITH THE RESULT.  THE USE OF A FORMULA
FOR AN ALLOCATION OF COSTS OR A SEGREGATION OF PROPERTY MIGHT OR MIGHT
NOT HAVE BEEN MORE FAVORABLE TO PETITIONER.  BUT ONCE THE USE OF SUCH A
FORMULA IS WAIVED OR IS CONCEDED TO BE IMPRACTICAL OR THEORETICAL,
THERE MUST BE SOME DISCRETION IN THE COMMISSION TO MAKE THAT
DETERMINATION THROUGH THE EXERCISE OF ITS INFORMED JUDGMENT.  WE CANNOT
SAY THAT THE COMMISSION ABUSED ITS DISCRETION BY CONCLUDING ON THE
BASIS OF THE SPECIAL CIRCUMSTANCES HERE PRESENTED THAT EARNINGS OF THE
ENTIRE BUSINESS IN EXCESS OF A 6 1/2 PER CENT RETURN SHOULD BE
ALLOCATED TO THE INTERSTATE WHOLESALE BUSINESS.  THE SMALL INVESTMENT
IN THE DIRECT INDUSTRIAL BUSINESS, THE INCREMENTAL NATURE OF IT, THE
EXTENT OF THE INTERRUPTIONS IN SERVICE TO THE DIRECT INDUSTRIAL
CUSTOMERS, THE MANNER IN WHICH THE MANAGEMENT HAS TREATED IT AFFORD A
BASIS FOR THE REFUSAL OF THE COMMISSION TO CREDIT IT WITH A LARGER
SHARE OF THE EARNINGS THAN 6 1/2 PER CENT. 

THE COMMISSION, WHILE IT LACKS AUTHORITY TO FIX RATES FOR DIRECT
INDUSTRIAL SALES, MAY TAKE THOSE RATES INTO CONSIDERATION WHEN IT FIXES
THE RATES FOR INTERSTATE WHOLESALE SALES WHICH ARE SUBJECT TO ITS
JURISDICTION.  FOR SEC. 5(A) PROVIDES THAT WHENEVER THE COMMISSION
"SHALL FIND THAT ANY RATE, CHARGE, OR CLASSIFICATION DEMANDED,
OBSERVED, CHARGED, OR COLLECTED BY ANY NATURAL-GAS COMPANY IN
CONNECTION WITH ANY TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO
THE JURISDICTION OF THE COMMISSION, OR THAT ANY RULE, REGULATION,
PRACTICE, OR CONTRACT AFFECTING SUCH RATE, CHARGE, OR CLASSIFICATION IS
UNJUST, UNREASONABLE, UNDULY DISCRIMINATORY, OR PREFERENTIAL, THE
COMMISSION SHALL DETERMINE THE JUST AND REASONABLE RATE."  IT IS CLEAR
THAT CONTRACTS COVERING DIRECT INDUSTRIAL SALES COME WITHIN THAT
ITALICIZED CLAUSE OF SEC. 5(A).  FN5  THE INDUSTRIAL RATES IN FORCE
HERE PRODUCE REVENUES OF $1,500,527 WITH EXPENSES OF $499,699 WHICH,
ACCORDING TO PETITIONER, RESULT IN EARNINGS OF $1,000,828 BEFORE INCOME
TAXES.  THAT IS AN APPARENT PROFIT OF MORE THAN 200 PER CENT.  IT IS A
FAIRLY OBVIOUS INDICATION THAT THE REGULATED BUSINESS IS BEING SADDLED
WITH COSTS WHICH IN FAIRNESS SHOULD BE BORNE BY DIRECT INDUSTRIAL
SALES.  THAT IS AN EXTREMELY RELEVANT CONSIDERATION FOR THE COMMISSION
TO TAKE INTO ACCOUNT WHEN IT DETERMINES WHAT COSTS ARE FAIRLY
ATTRIBUTABLE TO EACH BUSINESS AND WHAT THE RESULTANT RATE FOR THE
WHOLESALE BUSINESS SHOULD BE.  SEC. 5(A) DOES NOT OF COURSE GIVE THE
COMMISSION AUTHORITY TO DISREGARD THE JURISDICTIONAL LINES WHICH
CONGRESS HAS DRAWN BETWEEN INTERSTATE WHOLESALE SALES AND DIRECT
INDUSTRIAL SALES SO AS TO LEVEL THE PROFITS BETWEEN THE TWO CLASSES OF
BUSINESS.  BUT SEC. 5(A) REINFORCES OUR CONCLUSION THAT IN THE
EXCEPTIONAL CIRCUMSTANCES OF THIS CASE THE COMMISSION DID NOT EXCEED
THE LIMITS OF ITS DISCRETION WHEN IT ALLOCATED TO THE REGULATED
BUSINESS ALL EXCESS EARNINGS OF THE ENTIRE BUSINESS OVER 6 1/2 PER
CENT. 

PRODUCING AND GATHERING FACILITIES.  THE COMMISSION CONSTRUCTED A
RATE BASE ON THE ACTUAL LEGITIMATE COST OF PETITIONER'S PROPERTY IN
SERVICE ON DECEMBER 31, 1941, WHICH IT FOUND TO BE $78,814,292.  IT
DEDUCTED $12,596,987 FOR ACCRUED DEPRECIATION, DEPLETION AND
AMORTIZATION.  IT ADDED $920,000 FOR WORKING CAPITAL.  THE RESULT WAS A
RATE BASE OF $67,137,305 ON WHICH THE COMMISSION ALLOWED A RETURN OF 6
1/2 PER CENT WHICH IT FOUND TO BE "FAIR AND LIBERAL."  IT INCLUDED IN
THE RATE BASE PETITIONER'S PRODUCING PROPERTIES  FN6  AND GATHERING
FACILITIES.  PETITIONER CLAIMS THAT WAS ERROR.  IT CONTENDS THAT IT WAS
INCUMBENT ON THE COMMISSION TO DETERMINE THE FIELD PRICE OR ACTUAL
FIELD VALUE OF NATURAL GAS IN THE AREAS IN WHICH PETITIONER PRODUCES
GAS, TO ELIMINATE PETITIONER'S LEASEHOLDS AND PRODUCING AND GATHERING
FACILITIES FROM THE RATE BASE, TO DISALLOW EXPENSES OF GATHERING AND
PRODUCTION, AND TO ALLOW PETITIONER AS AN EXPENSE ITEM THE FIELD PRICE
OR ACTUAL FIELD VALUE FOR ALL GAS PRODUCED BY IT AND TAKEN INTO THE
PIPELINE SYSTEM.  EVIDENCE WAS OFFERED TO SHOW WHAT THE MARKET PRICE OR
ACTUAL FIELD VALUE OF THE GAS WAS.  THE ARGUMENT IS THAT THE PROCEDURE
FOLLOWED BY THE COMMISSION EXTENDS ITS JURISDICTION OVER "THE
PRODUCTION OR GATHERING OF NATURAL GAS" CONTRARY TO THE MANDATE OF SEC.
1(B).  FN7  PETITIONER SUGGESTS MOREOVER THAT IF ITS LEASEHOLDS ARE TO
BE INCLUDED IN THE RATE BASE THEY SHOULD NOT BE INCLUDED AT COST BUT AT
WHAT PETITIONER CLAIMS TO BE THE MARKET VALUE.  FN8 

THIS PHASE OF THE CASE IS CONTROLLED BY CANADIAN RIVER GAS CO. V.
FEDERAL POWER COMMISSION, SUPRA.  WE NEED NOT REPEAT WHAT WE SAID
THERE.  IT IS CLEAR THAT THE VALUE OF PRODUCING PROPERTIES AND
GATHERING FACILITIES IS AFFECTED WHENEVER RATES ARE FIXED.  THAT IS
INEVITABLY TRUE WHETHER THE LEASEHOLDS ARE PUT INTO THE RATE BASE OR
WHETHER AS PETITIONER URGES THE GAS IS VALUED AS A COMMODITY.  THAT
RESULT IS NOT AVOIDED UNLESS CONGRESS PUTS A FLOOR UNDER PRODUCTION
PROPERTIES AND GATHERING FACILITIES OF NATURAL GAS COMPANIES AND FIXES
A MINIMUM RETURN ON THEM.  THAT CONGRESS HAS NOT DONE.  AS JUDGE
SANBORN APTLY STATED IN THE OPINION OF THE CIRCUIT COURT OF APPEALS:
"IF THERE IS AN INFIRMITY IN THE COMMISSION'S DETERMINATION OF THE
AMOUNT WHICH SHOULD BE INCLUDED IN THE RATE BASE AS THE COST OR VALUE
OF SUCH FACILITIES, WE THINK THE INFIRMITY ARISES FROM THE METHOD USED
IN MAKING THE VALUATION, AND NOT FROM ANY LACK OF JURISDICTION."  143
F.2D 495.  PETITIONER, MOREOVER, FAILED TO OBJECT IN ITS APPLICATION
FOR REHEARING BEFORE THE COMMISSION TO THE INCLUSION OF ITS PRODUCING
PROPERTIES AND GATHERING FACILITIES IN THE RATE BASE.  IT IS
ACCORDINGLY PRECLUDED BY SEC. 19(B) OF THE ACT FROM ATTACKING THE ORDER
OF THE COMMISSION ON THE GROUND THAT THEY ARE INCLUDED. 

FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO., 320 U.S. 591, HOLDS
THAT THE COMMISSION IS NOT BOUND TO USE ANY SINGLE FORMULA FOR THE
FIXING OF RATES.  IT IS NOT PRECLUDED FROM USING ACTUAL LEGITIMATE COST
AS IT DID HERE.  THE QUESTION ON REVIEW IS NOT THE METHOD OF VALUATION
WHICH WAS USED BUT THE END RESULT OBTAINED SINCE THE ISSUE IS WHETHER
THE RATE FIXED IS "JUST AND REASONABLE."  SEC. 5.  IN THE PRESENT CASE
THE 6 1/2 PER CENT RETURN ALLOWED BY THE COMMISSION WILL PERMIT
PETITIONER TO EARN $4,363,925 ANNUALLY ON THE BASIS OF THE TEST YEAR
AFTER MEETING ALL OPERATING EXPENSES WHICH INCLUDE DEPRECIATION,
EXPLORATORY AND DEVELOPMENT COSTS, AND FEDERAL INCOME TAXES.  THE COST
OF SERVICING PETITIONER'S LONG-TERM DEBT IS $957,786 OR 2.88 PER CENT.
THE COST OF MEETING THE REQUIREMENTS OF THE PREFERRED STOCK IS $939,000
OR 5.8 PER CENT.  THAT LEAVES $2,467,139 FOR $20,184,175 OF COMMON
STOCK - A RETURN OF 12 PER CENT.  THE RETURN WOULD BE 9 PER CENT
FIGURED ON THE BASIS OF COMMON STOCK AND SURPLUS OF $27,650,000.  WE
ARE UNABLE TO SAY ON THESE UNDISPUTED FACTS THAT THE RETURN IS NOT
COMMENSURATE WITH THE RISKS, THAT CONFIDENCE IN PETITIONER'S FINANCIAL
INTEGRITY HAS BEEN IMPAIRED, OR THAT PETITIONER'S ABILITY TO ATTRACT
CAPITAL, TO MAINTAIN ITS CREDIT, AND TO OPERATE SUCCESSFULLY AND
EFFICIENTLY HAS BEEN IMPEDED.  FN9  SEE FEDERAL POWER COMMISSION V.
HOPE NATURAL GAS CO., SUPRA, P. 603.  AFFIRMED. 

FN1  THE OTHER PETITIONERS, ILLINOIS NATURAL GAS CO. AND MICHIGAN GAS
TRANSMISSION CORP., WERE WHOLLY OWNED SUBSIDIARIES OF PANHANDLE
EASTERN.  THEY SOLD ALL OF THEIR PROPERTIES TO PANHANDLE EASTERN AFTER
THESE PROCEEDINGS WERE INSTITUTED AND WERE THEN DISSOLVED. 
ACCORDINGLY, WE WILL REFER THROUGHOUT TO THE THREE COMPANIES AS
"PETITIONER." 

FN2  THE COMMISSION FOUND THAT THE AGGREGATE LINES IN THIS SYSTEM
CONSTITUTE "THE LONGEST NATURAL-GAS PIPE LINE IN THE WORLD, SERVING
MORE THAN 200 CITIES, TOWNS, AND COMMUNITIES WITH MORE THAN 700,000
RETAIL CUSTOMERS IN TEXAS, KANSAS, MISSOURI, ILLINOIS, INDIANA,
MICHIGAN, AND OHIO."  45 P.U.R. (N.S.)  203, 208. 

FN3  THE INVESTIGATION ALSO INCLUDED ILLINOIS NATURAL GAS CO. AND
MICHIGAN GAS TRANSMISSION CORP.  SEE NOTE 1, SUPRA. 

FN4  SEC. 1(B) PROVIDES: 

"THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURALGAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY
OTHER TRANSPORTATION OR SALE OF NATURAL GAS OR TO THE LOCAL
DISTRIBUTION OF NATURAL GAS OR TO THE FACILITIES USED FOR SUCH
DISTRIBUTION OR TO THE PRODUCTION OR GATHERING OF NATURAL GAS." 

FN5  THERE MUST BE FILED WITH THE COMMISSION NOT ONLY SCHEDULES OF
RATES SUBJECT TO THE JURISDICTION OF THE COMMISSION BUT "THE
CLASSIFICATIONS, PRACTICES, AND REGULATIONS AFFECTING SUCH RATES AND
CHARGES, TOGETHER WITH ALL CONTRACTS WHICH IN ANY MANNER AFFECT OR
RELATE TO SUCH RATES, CHARGES, CLASSIFICATIONS, AND SERVICES."  SEC.
4(C).  BY RULE 54.30 THE COMMISSION REQUIRES THE FILING WITH IT OF ALL
CONTRACTS FOR DIRECT INDUSTRIAL SALES INVOLVING SALES IN EXCESS OF
100,000 MCF PER YEAR.  SEE 8 FED. REG. 16101. 

FN6  PETITIONER PRODUCES APPROXIMATELY 50 PER CENT OF THE GAS WHICH
IT TRANSPORTS AND SELLS, THE REMAINDER BEING PURCHASED.  THE PAYMENTS
FOR GAS PURCHASED WERE ALLOWED BY THE COMMISSION AS AN OPERATING
EXPENSE. 

FN7  SEE NOTE 4, SUPRA. 

FN8  THE MARKET VALUE IS ALLEGED TO BE ABOUT $8,400,000 AS COMPARED
WITH SOME $955,000 WHICH THE COMMISSION FOUND TO BE THE ACTUAL
LEGITIMATE COST. 

FN9  THE COMMISSION STATED ON THIS PHASE OF THE CASE: 

"THE EVIDENCE DISCLOSES THAT THE RESPONDENTS' BUSINESS IS
EXCEPTIONALLY FREE FROM SERIOUS BUSINESS HAZARDS.  THE GAS SUPPLY IS
ASSURED FOR AT LEAST THIRTY TO THIRTY-FIVE MORE YEARS.  WE HAVE MADE
AMPLE PROVISION IN THE ANNUAL DEPRECIATION ALLOWANCE FOR THE
RESTORATION OF THE CAPITAL INVESTMENT IN THE PROPERTY OVER THE CLAIMED
LIFE OF THE GAS SUPPLY.  THE RESPONDENTS' MARKETS ARE RAPIDLY EXPANDING
AND EMBRACE THE LARGE METROPOLITAN AREA OF DETROIT, WHICH ALONE TAKES
40 PER CENT OF THE ENTIRE OUTPUT UNDER A LONG-TERM CONTRACT.  PANHANDLE
EASTERN'S PRESIDENT TESTIFIED THAT THE DEMAND FOR SERVICE IS SO GREAT
THAT WITHIN THE NEXT YEAR THE RESPONDENTS WILL BE CALLED UPON TO SELL
EVERY CUBIC FOOT OF GAS THAT CAN POSSIBLY BE DELIVERED THROUGH THE
LINES, AND THAT THE CAPACITY FACTOR WILL INCREASE FROM 70 PER CENT TO
90 PER CENT.    "IT IS LIKEWISE APPARENT FROM RESPONDENTS' OWN EVIDENCE
THAT PANHANDLE EASTERN HAS BEEN ABLE TO RAISE CONSIDERABLE CAPITAL AT
LOW COST.  ONLY RECENTLY IT SUCCESSFULLY COMPLETED A FINANCING PROGRAM
AT REMARKABLY LOW RATES WHICH RESULTED IN A SUBSTANTIAL REDUCTION IN
ITS ANNUAL COST OF CAPITAL.  IN FEBRUARY, 1941, PANHANDLE EASTERN SOLD
$18,250,000 OF FIRST MORTGAGE AND FIRST LIEN BONDS AND $5,000,000 OF
SERIAL NOTES AT AN AVERAGE ANNUAL INTEREST COST OF 2.74 PER CENT.  IN
FEBRUARY, 1942, IT SOLD AN ADDITIONAL $10,000,000 OF FIRST MORTGAGE
BONDS AT AN INTEREST COST OF 3.13 PER CENT AND $15,000,000 OF PREFERRED
STOCK AT A COST OF 5.86 PER CENT.  AFTER THE FINANCING, PANHANDLE
EASTERN'S ANNUAL COST OF LONG-TERM DEBT WAS 2.88 PER CENT AND PREFERRED
STOCK WAS 5.87 PER CENT, A COMBINED ANNUAL COST OF ONLY 3.85 PER CENT
FOR THESE SECURITIES. 

"PANHANDLE EASTERN HAS EARNED AN AVERAGE OF 10.64 PER CENT ON ITS NET
INVESTMENT OVER THE PAST FIVE YEARS, AND MICHIGAN GAS AN AVERAGE OF 8.5
PER CENT DURING APPROXIMATELY THE SAME PERIOD."  45 P.U.R. (N.S.)  P.
215. 

MR. CHIEF JUSTICE STONE, CONCURRING. 

MR. JUSTICE ROBERTS, MR. JUSTICE REED, MR. JUSTICE FRANKFURTER AND I
CONCUR FOR THE FOLLOWING REASONS ONLY. 

PETITIONERS DID NOT RAISE OBJECTIONS IN THEIR APPLICATION FOR
REHEARING TO THE COMMISSION TO THE INCLUSION OF THEIR PRODUCING AND
GATHERING FACILITIES IN THE RATE BASE.  BY SEC. 19(B) OF THE NATURAL
GAS ACT "NO OBJECTION TO THE ORDER OF THE COMMISSION SHALL BE
CONSIDERED BY THE COURT UNLESS SUCH OBJECTION SHALL HAVE BEEN URGED
BEFORE THE COMMISSION IN THE APPLICATION FOR REHEARING UNLESS THERE IS
REASONABLE GROUND FOR FAILURE SO TO DO."  NO REASON APPEARS FOR THE
FAILURE OF PETITIONERS HERE TO MAKE OBJECTION ON REHEARING TO THE
INCLUSION OF THE PRODUCTION AND GATHERING FACILITIES IN THE RATE BASE. 

..END :





SPECIAL EQUIPMENT CO. V. COE, 324 U.S. 370 


NO. 469.  ARGUED MARCH 2, 5, 1945.  - DECIDED MARCH 26, 1945.  - 144
F.2D 497, REVERSED. 


1.  IN THIS SUIT IN EQUITY UNDER R.S. SEC. 4915 TO COMPEL THE
COMMISSIONER OF PATENTS TO ISSUE A PATENT UPON AN APPLICATION FOR A
SUBCOMBINATION OF THE ELEMENTS OF A MACHINE, ASSUMED TO BE A USEFUL
INVENTION, FOR WHICH THE CLAIMANT HAD PREVIOUSLY FILED A PATENT
APPLICATION, THE RECORD FAILS TO ESTABLISH THAT THE CLAIMANT INTENDED
TO MISUSE THE PATENT ON THE SUBCOMBINATION OR TO MAKE NO USE OF THE
ALLEGED INVENTION, AND THE DECISION OF THE COURT BELOW REFUSING ON THAT
GROUND TO ORDER ISSUANCE OF THE PATENT WAS THEREFORE ERRONEOUS.  PP.
374, 380. 

2.  A SUBCOMBINATION PATENT MAY LEGITIMATELY BE USED AS A MEANS OF
PREVENTING APPROPRIATION BY OTHERS OF A COMBINATION INVENTION WHICH THE
CLAIMANT IS USING, WHERE THERE IS ABSENT ANY PURPOSE TO ENLARGE THE
PATENT MONOPOLY OF EITHER INVENTION.  P. 376. 

A PATENT ON A COMBINATION EMBODIED IN AN INVENTOR'S COMPLETE MACHINE,
WITHOUT ALLOWANCE OF SUBCOMBINATION CLAIMS, WOULD NOT PREVENT FREE USE
OF THE SUBCOMBINATION.  HENCE DENIAL OF A PATENT ON THE SUBCOMBINATION
WOULD DEPRIVE THE INVENTOR OF THE BENEFIT OF THE EXCLUSIVE RIGHT TO USE
THE SUBCOMBINATION IN THE WAYS SPECIFIED BY THE PATENT LAWS.  IT WOULD
ALSO LEAVE THE PUBLIC FREE TO USE, AND THUS TO APPROPRIATE A PART,
HOWEVER IMPORTANT, OF THE INVENTOR'S COMPLETE MACHINE, EVEN THOUGH
PATENTED. 

3.  THE STATUTES PERMIT, AND IT IS THE SETTLED PRACTICE OF THE PATENT
OFFICE TO ALLOW, SUBCOMBINATION AS WELL AS COMBINATION CLAIMS.  P.
377. 

4.  THE PATENT GRANT IS NOT OF A RIGHT TO THE PATENTEE TO USE THE
INVENTION, BUT OF THE RIGHT TO EXCLUDE OTHERS FROM USING IT.  P. 378. 

5.  ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, LENDS NO
SUPPORT TO THE CONTENTION THAT A PATENTEE MAY NOT USE HIS PATENT AS A
PROTECTION AGAINST MISAPPROPRIATION OF HIS INVENTION, EVEN THOUGH THE
INVENTION IS NOT USED.  P. 379. 

6.  PETITIONER'S INTENDED USE OF THE SUBCOMBINATION PATENT TO PREVENT
OTHERS FROM APPROPRIATING THE ALLEGED INVENTION AND BY THAT MEANS FROM
APPROPRIATING AN ESSENTIAL PART OF THE COMPLETE MACHINE IS IN NO WAY
INCONSISTENT WITH PETITIONER'S MAKING OTHER PERMISSIBLE USES OF THE
SUBCOMBINATION PATENT.  P. 379. 

SPECIAL EQUIPMENT CO. V. COE, COMMISSIONER OF PATENTS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 323 U.S. 697, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT IN A SUIT UNDER R.S. SEC. 4915 TO COMPEL THE
COMMISSIONER OF PATENTS TO ISSUE A PATENT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT IN EQUITY, BROUGHT IN THE DISTRICT COURT OF THE
DISTRICT OF COLUMBIA, UNDER R.S. SEC. 4915, TO COMPEL RESPONDENT, THE
COMMISSIONER OF PATENTS, TO ISSUE A PATENT UPON AN APPLICATION FOR A
SUBCOMBINATION OF THE ELEMENTS OF A MACHINE FOR WHICH THE INVENTOR HAD
PREVIOUSLY FILED A PATENT APPLICATION.  THE DISTRICT COURT GAVE
JUDGMENT FOR RESPONDENT.  THE COURT OF APPEALS FOR THE DISTRICT
AFFIRMED, 144 F.2D 497, AND WE GRANTED CERTIORARI, 323 U.S. 697.  THE
QUESTION IS WHETHER THE COURT OF APPEALS CORRECTLY RESTED ITS DECISION
UPON THE GROUND THAT PETITIONER DID NOT INTEND TO MAKE OR USE THE
INVENTION AND THAT THE PURPOSE OF SEEKING THE PATENT WAS TO EXPLOIT AND
PROTECT THE COMBINATION INVENTION EMBODIED IN THE COMPLETE MACHINE, OF
WHICH THE SUBCOMBINATION IS A PART. 

EWALD, THE PLAINTIFF IN THE DISTRICT COURT IN WHOSE STEAD PETITIONER,
HIS ASSIGNEE, WAS LATER SUBSTITUTED AS A PARTY, MADE APPLICATION FOR A
PATENT ON A "FRUIT-TREATING APPARATUS" EMBRACING THE COMBINATION
EMBODIED IN HIS COMPLETE MACHINE.  CERTAIN CLAIMS OF HIS APPLICATION
WERE ALLOWED OCTOBER 27, 1938, BUT A PATENT HAS NOT YET ISSUED.  THE
FOLLOWING YEAR HE MADE A RENEWED APPLICATION FOR THE SUBCOMBINATION,
WITH WHICH THE PRESENT SUIT IS CONCERNED.  THE SPECIFICATIONS OF THE
ORIGINAL APPLICATION DISCLOSED MECHANISMS FOR AUTOMATICALLY PERFORMING
THE SUCCESSIVE OPERATIONS OF BOBBING (CUTTING OFF THE STEMS),
SPLITTING, PARING, AND CORING PEARS, IN PREPARATION FOR CANNING OR
OTHER PROCESSING. 

THE ORIGINAL APPLICATION SPECIFIED AND CLAIMED AN APPARATUS
CONSISTING OF TWO SPACED, HORIZONTALLY MOUNTED TURRETS OR TURNTABLES,
COMBINED WITH MEANS FOR CONTINUOUSLY, BUT INTERMITTENTLY, ROTATING BOTH
IN THE SAME DIRECTION.  FIXED UPON AND ROTATABLE WITH THE TABLE OF THE
FIRST TURRET ARE A PLURALITY OF PEAR RECEIVING AND CLAMPING MEANS,
SPACED UPON THE UPPER SURFACE OF THE TURNTABLE, ADAPTED TO RECEIVE AND
CLAMP EITHER A PRE-SPLIT OR A WHOLE PEAR.  AT THE FIRST INTERMITTENT
STOP A SWINGING KNIFE SHEARS OFF (BOBS) THE STEM OF THE FRUIT, WHICH
EXTENDS BEYOND THE CLAMPS.  AT THE NEXT INTERMITTENT STOP, OVERHEAD
TRAVELING JAWS OR CLAMPS GRASP THE FRUIT CONCURRENTLY WITH ITS RELEASE
FROM THE FIRST CLAMP AND CARRY THE FRUIT LONGITUDINALLY TO A POINT OVER
THE SECOND TURNTABLE. 

AS THE PEAR IS THUS CARRIED FROM THE FIRST TURRET TO A POSITION OVER
THE SECOND, IT IS SPLIT BY A FIXED VERTICALLY POSITIONED KNIFE
STRADDLED BY THE OVERHEAD TRAVELING CLAMPS.  AS THE CLAMPS FORCE THE
PEAR AGAINST AND PAST THE KNIFE, IT CLEAVES THE PEAR INTO SUBSTANTIALLY
EQUAL HALF SECTIONS.  THE PEAR SECTIONS ARE THEN AUTOMATICALLY,
SUCCESSIVELY DEPOSITED IN SPACED CUPS FIXED ON THE SECOND REVOLVING
TURNTABLE.  AT THE NEXT STOP OF THAT TURNTABLE THE PEAR SECTION RESTING
IN ITS CUP IS PEELED BY AN AUTOMATICALLY OPERATED PARING KNIFE.  AT THE
NEXT SUCCESSIVE STOP THE CORE IS REMOVED FROM THE PEAR SECTION BY AN
AUTOMATICALLY OPERATED CORING DEVICE.  AFTER COMPLETING THE CORING, THE
MECHANISM AUTOMATICALLY SEPARATES THE PEAR SECTION FROM THE CORE AND
THE PEELING AND DISCHARGES THEM AND THE PEAR SECTION INTO APPROPRIATE
RECEPTACLES. 

IN THE OPERATION OF THE MACHINE WHOLE OR SPLIT PEARS MAY BE FED BY
HAND TO THE HOLDING AND CLAMPING DEVICES ON THE FIRST TURRET WHERE THE
PEARS ARE BOBBED.  THE WHOLE PEAR IS THEN SPLIT AS IT IS CARRIED BY THE
OVERHANGING JAWS FROM THE FIRST TURRET TO THE SECOND.  THE PEELING AND
CORING OF BOTH PRE-SPLIT AND WHOLE PEARS ARE THEN CARRIED THROUGH BY
THE OPERATION OF THE SECOND TURRET. 

THE PATENT APPLICATION FOR THE COMPLETE MACHINE DISCLOSES A HIGHLY
INGENIOUS DEVICE, WHICH IS SAID TO HAVE ACHIEVED A GREAT ADVANCE IN THE
ART BY INCREASING THE SPEED AND SKILL WITH WHICH PEARS ARE PREPARED FOR
CANNING, AND TO RESULT IN A GREAT SAVING OF MANPOWER.  THE RENEWED
APPLICATION FOR THE SUBCOMBINATION SPECIFIES AND CLAIMS THE APPARATUS
WHICH WE HAVE DESCRIBED BUT WITHOUT THE SPLITTING KNIFE.  IN THE
OPERATION OF THE DEVICE THUS CLAIMED THE PEARS ARE PRE-SPLIT BY HAND. 
THE SPLIT SECTIONS ARE PLACED FACE TO FACE IN THE RECEIVING AND
CLAMPING MEANS UPON THE FIRST TURNTABLE, AFTER WHICH THE OPERATION,
EXCEPT THE SPLITTING BY THE SPLITTING KNIFE, PROCEEDS IN EXACTLY THE
SAME WAY AND ACCOMPLISHES THE SAME RESULT AS WHEN THE SPLITTING KNIFE
IS PRESENT. 

ADDITIONAL CLAIMS, WHICH ARE THOSE SUED ON, COVERING ALL THE ELEMENTS
OF THE COMBINATION EXCEPT THE SPLITTING KNIFE, WERE DULY PRESENTED TO
THE PATENT OFFICE.  THERE THEY WERE REJECTED AS INCOMPLETE, BROADER
THAN THE INVENTION DISCLOSED BY THE PETITIONER IN HIS APPLICATION, AND
MISLEADING, AND AS COVERING CONSTRUCTIONS NOT CONTEMPLATED BY
PETITIONER'S APPLICATION.  RESPONDENT COMMISSIONER, ALLEGING NO PRIOR
ART AGAINST THE ALLOWANCE OF THE CLAIMS, SET UP THESE OBJECTIONS IN HIS
ANSWER IN THE DISTRICT COURT AS THE SOLE GROUNDS OF DEFENSE TO THE
SUIT.  THE DISTRICT COURT SUSTAINED THE COMMISSIONER ON THE GROUNDS
ASSIGNED BY HIM FOR REJECTION OF THE CLAIMS, AND FOR THE FURTHER REASON
THAT THE SUBCOMBINATION CLAIMS DID NOT "COMBINE TO PRODUCE ANY USEFUL
RESULT." 

THE COURT OF APPEALS, AFTER OBSERVING THE OPERATION OF PETITIONER'S
SUBCOMBINATION WITHOUT THE CUTTING KNIFE, AS SHOWN BY MOVING PICTURES,
CONCLUDED THAT THE DEVICE WAS FAR MORE USEFUL IN ITS OPERATION THAN THE
OLD METHOD OF PREPARING FRUIT BY HAND, AND, WITHOUT DECIDING THE POINT,
ADDED THAT IT WAS PLAUSIBLE TO SAY "THAT TWO DISTINCT INVENTIONS ARE
DISCLOSED IN THE APPLICATION." 

WITHOUT FURTHER EXAMINATION OF THE ISSUES RAISED BY THE PLEADINGS, IT
AFFIRMED THE JUDGMENT OF THE DISTRICT COURT UPON THE NEW AND
INDEPENDENT GROUND THAT A PATENT ON THE SUBCOMBINATION SHOULD NOT BE
GRANTED BECAUSE OF "THE DANGERS OF APPROVING A PRINCIPLE WHICH PERMITS
A PATENT MONOPOLY TO BE EXTENDED BY GRANTING CLAIMS ON DISTINCT
INVENTIONS, WHICH THE APPLICANT HAS NO INTENTION OF EXPLOITING AS
DISTINCT INVENTIONS."  IT SAID:  "THE RECORD SHOWS THAT IT (THE
SUBCOMBINATION PATENT) IS TO BE USED TO EXPLOIT AND PROTECT THE PATENT
MONOPOLY OF ANOTHER RELATED INVENTION, TO-WIT:  THE COMPLETE MACHINE. 
THERE IS NO INTENTION TO MAKE OR LICENSE OTHERS TO MAKE THE PARTIAL
MACHINE BECAUSE, ALTHOUGH IT IS POSSIBLE TO USE IT WITHOUT THE CUTTING
KNIFE, IT IS NOT DESIGNED FOR SUCH INDEPENDENT USE."  IT THOUGHT THAT
THE GRANT OF A PATENT WHICH THE PATENTEE HAS NO INTENTION OF EXPLOITING
AS A DISTINCT INVENTION "FOR THE PURPOSE OF BLOCKING THE DEVELOPMENT OF
MACHINES WHICH MIGHT BE CONSTRUCTED BY OTHERS," IS INCONSISTENT WITH
THE CONSTITUTIONAL REQUIREMENT THAT THE PATENT GRANT MUST "PROMOTE THE
PROGRESS OF SCIENCE AND USEFUL ARTS." 

WE ARE POINTED TO NO FACTUAL BASIS IN THE RECORD FOR THE ASSERTION
THAT PETITIONER CONTEMPLATES EITHER THE MISUSE OR NON-USE OF THE
COMBINATION PATENT, OTHER THAN THAT SUGGESTED IN THE COURT'S OPINION
THAT THE COMPLETE MACHINE DOES THE WORK BETTER THAN THE SUBCOMBINATION,
WITHOUT THE KNIFE, CAN DO IT AND THAT THERE WOULD BE NO REASON TO
MANUFACTURE THE PARTIAL MACHINE WHEN THE COMPLETE MACHINE WAS
AVAILABLE.  A SEPARATE OPINION IN WHICH ALL THE JUDGES CONCURRED ALSO
STATES THAT PETITIONER "ADMITTED, BOTH ON ARGUMENT AND IN ITS BRIEF IN
THE PRESENT CASE, THAT ITS PURPOSE IN FILING THE DISPUTED CLAIMS WAS TO
'PROTECT' THE MAIN INVENTION AND THAT IT HAD NO INTENTION OF
MANUFACTURING THE SUBCOMBINATION MACHINE."  THE REFERENCE, AS AGREED BY
COUNSEL ON THE ARGUMENT BEFORE US, IS TO A STATEMENT IN PETITIONER'S
BRIEF IN THE COURT BELOW THAT:  "THE CLAIMS IN ISSUE ARE SOUGHT PURELY
TO PREVENT APPROPRIATION OF THE  ...  MACHINE BY THE OBVIOUS EXPEDIENT
OF ELIMINATING THE SPLITTING MECHANISM."  IT WILL BE OBSERVED THAT THIS
STATEMENT OF PETITIONER IS NOT OF A PURPOSE EITHER TO SUPPRESS THE USE
OF THE PATENTED INVENTION OR TO USE IT OR THE PATENT TO EXPLOIT OR
ENLARGE THE PATENT MONOPOLY OF THE COMPLETE MACHINE. 

THE COURT BELOW FOUND SUPPORT FOR ITS CONCLUSION IN OUR DECISIONS
HOLDING THAT A PATENTEE MAY NOT ENLARGE THE MONOPOLY OF HIS PATENT BY
LICENSING HIS INVENTION ON TERMS OR CONDITIONS WHICH TIE TO ITS USE THE
USE OF MATERIAL OR DEVICES WHICH THE LICENSED INVENTION DOES NOT
EMBRACE, WHETHER THEY ARE PATENTED, ETHYL GASOLINE CORP. V. UNITED
STATES, 309 U.S. 436, 459; STANDARD SANITARY MFG. CO. V. UNITED STATES,
226 U.S. 20, OR UNPATENTED, MOTION PICTURE PATENTS CO. V. UNIVERSAL
FILM MFG. CO., 243 U.S. 502; UNITED SHOE MACHINERY CORP. V. UNITED
STATES, 258 U.S. 451; CARBICE CORPORATION V. AMERICAN PATENTS CORP.,
283 U.S. 27; LEITCH MANUFACTURING CO. V. BARBER CO., 302 U.S. 458. 

IT IS CLEAR THAT NO SUCH CASE IS PRESENTED HERE.  WE FIND NOTHING IN
THE STATEMENT QUOTED FROM PETITIONER'S BRIEF IN THE COURT BELOW OR IN
THE RECORD TO INDICATE THAT PETITIONER PROPOSES TO MAKE ANY SUCH USE OF
THE PATENT WHICH IT NOW SEEKS, EITHER BY THE METHOD OF LICENSING IT OR
OTHERWISE.  THE STATEMENT EXPRESSES ONLY A PURPOSE TO PREVENT
APPROPRIATION OF THE COMPLETE MACHINE BY THE APPROPRIATION OF A PART OF
IT EMBODIED IN THE SUBCOMBINATION FOR WHICH THE PATENT IS ASKED.  THERE
IS NOTHING TO SUGGEST ANY PURPOSE OR REASON FOR A PURPOSE TO ENLARGE
THE MONOPOLY EITHER OF THE SUBCOMBINATION OR OF THE COMPLETE MACHINE BY
TYING TOGETHER THEIR USES.  CONTROL OF A PART COULD NOT BE USED AS A
MEANS OF ENLARGING AN ALREADY ACQUIRED CONTROL OF THE WHOLE.  AND,
OBVIOUSLY, LICENSING THE SUBCOMBINATION, WHICH IS LESS USEFUL THAN THE
WHOLE, WOULD NOT, IN ANY CIRCUMSTANCES DISCLOSED BY THE RECORD, BE A
PRACTICAL MEANS OF ENLARGING THE USE OF THE WHOLE.  FAILURE TO ACQUIRE
CONTROL OF THE WHOLE WOULD BE A LEGITIMATE REASON FOR WISHING TO
ACQUIRE AND RETAIN CONTROL OF A PART, IF IT INVOLVES A PATENTABLE
INVENTION.  AND WE THINK IT PLAINLY IS LEGITIMATE TO USE A PATENT ON
THE SUBCOMBINATION AS A MEANS OF PREVENTING APPROPRIATION BY OTHERS OF
PETITIONER'S MORE IMPORTANT COMPLETE INVENTION WHICH HE IS USING, WHERE
THERE IS ABSENT, AS THERE IS HERE, ANY PURPOSE TO ENLARGE THE MONOPOLY
OF EITHER INVENTION. 

A PATENT ON THE COMBINATION EMBODIED IN THE COMPLETE MACHINE, WITHOUT
THE ALLOWANCE OF THE SUBCOMBINATION CLAIMS, WOULD NOT, AS THE COURT
BELOW THOUGHT, PREVENT THE FREE USE OF THE SUBCOMBINATION.  CORN
PLANTER PATENT, 23 WALL.  181, 224; SCHUMACHER V. CORNELL, 96 U.S. 549,
554; ROWELL V. LINDSAY, 113 U.S. 97, 101; MERCOID CORP. V. MID
CONTINENT CO., 320 U.S. 661, 668.  HENCE DENIAL OF A PATENT ON THE
SUBCOMBINATION WOULD DEPRIVE THE INVENTOR OF THE BENEFIT OF THE
EXCLUSIVE RIGHT TO USE THE SUBCOMBINATION IN THE WAYS SPECIFIED BY THE
PATENT LAWS.  IT WOULD ALSO LEAVE THE PUBLIC FREE TO USE, AND THUS TO
APPROPRIATE A PART, HOWEVER IMPORTANT, OF THE INVENTOR'S COMPLETE
MACHINE, EVEN THOUGH PATENTED. 

IF, AS WE MUST ASSUME, PETITIONER HAS TWO INVENTIONS, BOTH OF WHICH
ARE USEFUL AND ONE OF WHICH INCLUDES THE OTHER IN ITS ENTIRETY, IT IS
EVIDENT THAT THE VALUE OF THE FORMER WOULD BE GREATLY IMPAIRED IF THE
SUBCOMBINATION INVENTION COULD BE FREELY USED BY OTHERS.  SEE DEERING
V. WINONA HARVESTER WORKS, 155 U.S. 286, 302.  BUT SUCH APPROPRIATION
OR IMPAIRMENT OF THE VALUE OF THE FULL COMBINATION COULD BE ACHIEVED
ONLY BY APPROPRIATION OF THE UNPATENTED SUBCOMBINATION WHICH IS BY
HYPOTHESIS ALSO A USEFUL INVENTION, ENTITLED TO CLAIM THE BENEFIT AND
PROTECTION OF THE PATENT LAWS. 

THE STATUTES PERMIT, AND IT IS THE SETTLED PRACTICE OF THE PATENT
OFFICE, MANY TIMES SUSTAINED BY THIS COURT, TO ALLOW, CLAIMS TO A
COMBINATION AND ALSO ITS SUBCOMBINATIONS.  PHILADELPHIA, W. & B.R. CO.
V. DUBOIS, 12 WALL.  47, 60; DEERING V. WINONA HARVESTER WORKS, SUPRA;
LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO., 213 U.S. 301, 318;
ALTOONA THEATRES V. TRI-ERGON CORP., 294 U.S. 477, 487; MERCOID CORP.
V. MID-CONTINENT CO., SUPRA, 667.  THE QUESTION THEN IS WHETHER,
WITHOUT MORE, THE USE OF THE SUBCOMBINATION PATENT TO PREVENT
APPROPRIATION OF THE COMPLETE MACHINE SO INFRINGES ANY PROVISIONS OR
PRINCIPLES OF THE PATENT LAWS, OR IS SO CONTRARY TO PRINCIPLES
GOVERNING THE AWARD OF EQUITABLE RELIEF, AS TO PERMIT THE COURT TO
REFUSE THE JUDGMENT, WHICH THE STATUTE AUTHORIZES, DIRECTING THAT THE
PATENT ISSUE. 

IN ANSWERING IT THE COURT BELOW ASSUMED THAT SUCH PURPOSE TO PROTECT
THE WHOLE INVENTION WAS TO BE ACHIEVED BY COMPLETE SUPPRESSION OF THE
USE OF THE SUBCOMBINATION INVENTION AND THAT THE SUPPRESSION FOR THE
PROTECTION OF THE COMPLETE MACHINE WOULD INVALIDATE THE PATENT BECAUSE
IT WOULD BE CONTRARY TO THE CONSTITUTIONAL PURPOSE AND TO THE SPIRIT IF
NOT THE LETTER OF THE PATENT LAWS.  WE THINK BOTH ASSUMPTIONS ARE
UNWARRANTED.  SECTION 4886 OF THE REVISED STATUTES AUTHORIZED "ANY
PERSON WHO HAS INVENTED  ...  ANY NEW AND USEFUL  ...  MACHINE" TO
"OBTAIN A PATENT."  THE PATENT GRANT IS NOT OF A RIGHT TO THE PATENTEE
TO USE THE INVENTION, FOR THAT HE ALREADY POSSESSES.  IT IS A GRANT OF
THE RIGHT TO EXCLUDE OTHERS FROM USING IT.  AS THE STATUTE, R.S. SEC.
4884, PROVIDES, THE GRANT IS OF THE "EXCLUSIVE RIGHT TO MAKE, USE, AND
VEND" THE INVENTION, AND THIS INCLUDES THE EXCLUSIVE RIGHT TO LICENSE
OTHERS TO MAKE, USE AND VEND IT.  BY THE VERY TERMS OF THE STATUTE THE
GRANT IS NOTHING MORE THAN A MEANS OF PREVENTING OTHERS, EXCEPT UNDER
LICENSE FROM THE PATENTEE, FROM APPROPRIATING HIS INVENTION.    IT BY
NO MEANS FOLLOWS THAT SUCH A GRANT IS AN INCONSISTENT OR INAPPROPRIATE
EXERCISE OF THE CONSTITUTIONAL AUTHORITY OF CONGRESS "TO PROMOTE THE
PROGRESS OF SCIENCE AND USEFUL ARTS" BY SECURING TO INVENTORS "THE
EXCLUSIVE RIGHT TO THEIR  ...  DISCOVERIES."  CONGRESS, IN THE CHOICE
OF MEANS OF PROMOTING THE USEFUL ARTS BY PATENT GRANTS, COULD HAVE
PROVIDED THAT THE GRANT SHOULD BE CONDITIONED UPON THE USE OF THE
PATENTED INVENTION, AS IN FACT IT DID PROVIDE BY THE ACT OF 1832(4
STAT. 577) AUTHORIZING THE ISSUE OF PATENTS TO ALIENS CONDITIONED UPON
THE USE OF THE INVENTION, WHICH PROVISION WAS LATER REPEALED (5 STAT.
117, 125).  BUT CONGRESS WAS AWARE THAT AN UNPATENTED INVENTION COULD
BE SUPPRESSED AND THE PUBLIC THUS DEPRIVED OF ALL KNOWLEDGE OR BENEFIT
OF IT.  IT COULD HAVE CONCLUDED THAT THE USEFUL ARTS WOULD BE BEST
PROMOTED BY COMPLIANCE WITH THE CONDITIONS OF THE STATUTES WHICH IT DID
ENACT, WHICH REQUIRE THAT PATENTS BE GRANTED ONLY FOR A LIMITED TERM
UPON AN APPLICATION FULLY DISCLOSING THE INVENTION AND THE MANNER OF
MAKING AND USING IT.  IT THUS GAVE TO THE INVENTOR LIMITED OPPORTUNITY
TO GATHER MATERIAL REWARDS FOR HIS INVENTION AND SECURED TO THE PUBLIC
THE BENEFITS OF FULL KNOWLEDGE OF THE INVENTION AND THE RIGHT TO USE IT
UPON THE EXPIRATION OF THE PATENT. 

THIS COURT HAS CONSISTENTLY HELD THAT FAILURE OF THE PATENTEE TO MAKE
USE OF A PATENTED INVENTION DOES NOT AFFECT THE VALIDITY OF THE
PATENT.  CONTINENTAL PAPER BAG CO. V. EASTERN PAPER BAG CO., 210 U.S.
405; CROWN DIE & TOOL CO. V. NYE TOOL WORKS, 261 U.S. 24, 34;
WOODBRIDGE V. UNITED STATES, 263 U.S. 50, 55; FOX FILM CORP. V. DOYAL,
286 U.S. 123, 127; HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386,
433.  NO QUESTION OF NON-USE WAS INVOLVED IN ETHYL GASOLINE CORP. V.
UNITED STATES, SUPRA, 459, ON WHICH THE COURT BELOW RELIED, AND IT
LENDS NO SUPPORT TO THE CONTENTION THAT A PATENTEE MAY NOT RIGHTLY USE
HIS PATENT AS A PROTECTION AGAINST MISAPPROPRIATION OF HIS INVENTION,
EVEN THOUGH IT IS NOT USED.  THERE IT WAS HELD ONLY THAT THE MONOPOLY
OF A PATENT AFFORDED NO DEFENSE FOR VIOLATIONS OF THE SHERMAN ACT WHICH
THE PATENTEE HAD EFFECTED BY USING HIS PATENT TO ENLARGE THE PATENT
MONOPOLY BEYOND THE GRANT AND AS A MEANS OF INCREASING THE USE OF AN
INDEPENDENT PATENTED INVENTION. 

CONGRESS HAS FREQUENTLY BEEN ASKED TO CHANGE THE POLICY OF THE
STATUTES AS INTERPRETED BY THIS COURT BY IMPOSING A FORFEITURE  FN1  OR
PROVIDING FOR COMPULSORY LICENSING  FN2  IF THE PATENT IS NOT USED
WITHIN A SPECIFIED TIME, BUT HAS NOT DONE SO. 

WE HAVE NO OCCASION TO CONSIDER HERE WHETHER A BETTER RULE GOVERNING
THE GRANT OF PATENTS COULD BE DEVISED THAN THAT PRESCRIBED BY CONGRESS,
AS THIS COURT HAS INTERPRETED IT; OR WHETHER THE COURTS ON EQUITABLE
PRINCIPLES SHOULD DECLINE TO ENJOIN PATENT INFRINGEMENTS OR DECLINE TO
COMPEL THE ISSUE OF A PATENT IF AND WHEN IT APPEARS THAT THE PATENTEE
OR INVENTOR INTENDS TO MAKE NO USE OF THE INVENTION.  THE RECORD
NEITHER CALLS UPON NOR PERMITS US TO DECIDE ANY OF THESE QUESTIONS, FOR
IT FAILS TO ESTABLISH THAT PETITIONER HAS ANY SUCH INTENTION. 
PETITIONER'S INTENDED USE OF THE PATENT TO PREVENT OTHERS FROM
APPROPRIATING IT AND BY THAT MEANS FROM APPROPRIATING AN ESSENTIAL PART
OF HIS COMPLETE MACHINE IS IN NO WAY INCONSISTENT WITH PETITIONER'S
MAKING OTHER PERMISSIBLE USES OF THE SUBCOMBINATION PATENT.  IN FACT,
HE DOES USE THE SUBCOMBINATION AS A PART OF HIS COMPLETED MACHINE AND
PROPOSES TO CONTINUE TO USE IT.  EXECUTION OF HIS DECLARED PURPOSE TO
PREVENT APPROPRIATION OF EITHER OF HIS INVENTIONS, WHETHER USED
SEPARATELY OR TOGETHER, WOULD NOT PREVENT HIS LICENSING OTHERS TO MAKE,
USE AND VEND THE SUBCOMBINATION, ON TERMS WHICH WOULD ADEQUATELY
PROTECT THE VALUE OF THE MONOPOLY OF BOTH HIS INVENTIONS TO WHICH HE IS
ENTITLED BY THE PATENT LAWS.  AND WE CANNOT SAY THAT OTHERS, WHO COULD
NOT SECURE A LICENSE TO USE THE COMPLETE MACHINE, WOULD NOT FIND IT
PROFITABLE TO SECURE, OR THAT PETITIONER WOULD NOT FIND IT PROFITABLE
TO GRANT, LICENSES TO USE THE SUBCOMBINATION WHICH THE COURT BELOW HAS
FOUND TO BE A USEFUL DEVICE WHICH HAS ADVANCED THE ART. 

THE RECORD ESTABLISHES NO INTENTION BY PETITIONER NOT TO USE HIS
INVENTION, AND NO PROPOSED USE OF IT DISCLOSED OR SUGGESTED BY THE
RECORD AFFORDS ANY BASIS FOR WITHHOLDING THE GRANT OF THE PATENT.  THE
JUDGMENT BELOW MUST THEREFORE BE REVERSED, AND THE CAUSE REMANDED TO
THE COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS
OPINION TO ENABLE IT TO CONSIDER AND DECIDE THE ISSUES RAISED BY THE
PLEADINGS.  SEE BATES V. UNITED STATES, 323 U.S. 15, 17 AND CASES
CITED.  REVERSED. 

FN1  SEE HARTFORD-EMPIRE CO. V. UNITED STATES, SUPRA, 433, N. 26. 

FN2  SEE HARTFORD-EMPIRE CO. V. UNITED STATES, SUPRA, N. 27. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY CONCUR, DISSENTING. 

THE RIGHT OF SUPPRESSION OF A PATENT CAME INTO THE LAW OVER A CENTURY
AFTER THE FIRST PATENT ACT WAS PASSED.  IN 1886 JUDGE BLODGETT HAD
RULED THAT A PATENTEE "IS BOUND EITHER TO USE THE PATENT HIMSELF OR
ALLOW OTHERS TO USE IT ON REASONABLE OR EQUITABLE TERMS."  HOE V. KNAP,
27 F. 204, 212.  IN 1896 THAT RULE WAS REPUDIATED BY THE CIRCUIT COURT
OF APPEALS FOR THE SIXTH CIRCUIT IN HEATON-PENINSULAR BUTTON-FASTENER
CO. V. EUREKA SPECIALTY CO., 77 F. 288, 295, WHERE THE COURT STATED
THAT A PATENTEE'S "TITLE IS EXCLUSIVE, AND SO CLEARLY WITHIN THE
CONSTITUTIONAL PROVISIONS IN RESPECT OF PRIVATE PROPERTY THAT HE IS
NEITHER BOUND TO USE HIS DISCOVERY HIMSELF, NOR PERMIT OTHERS TO USE
IT."  THAT THEORY WAS ADOPTED BY THIS COURT IN CONTINENTAL PAPER BAG
CO. V. EASTERN PAPER BAG CO., 210 U.S. 405, DECIDED IN 1908.  THAT WAS
AN INFRINGEMENT SUIT.  ONE DEFENSE WAS THAT THE PATENTEE HAD SUPPRESSED
THE PATENT.  THE COURT HELD, MR. JUSTICE HARLAN DISSENTING, THAT
SUPPRESSION OF THE PATENT WAS NO DEFENSE; THAT THE PATENTEE'S "RIGHT
CAN ONLY RETAIN ITS ATTRIBUTE OF EXCLUSIVENESS BY A PREVENTION OF ITS
VIOLATION."  ID., P. 430. 

I THINK IT IS TIME TO BE RID OF THAT RULE.  IT IS INCONSISTENT WITH
THE CONSTITUTION AND THE PATENT LEGISLATION WHICH CONGRESS HAS
ENACTED. 

ARTICLE I, SEC. 8 OF THE CONSTITUTION GRANTS CONGRESS THE POWER "TO
PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR
LIMITED TIMES TO AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR
RESPECTIVE WRITINGS AND DISCOVERIES."  OF THE VARIOUS ENUMERATED POWERS
IT IS THE ONLY ONE WHICH STATES THE PURPOSE OF THE AUTHORITY GRANTED
CONGRESS.  "THE CONGRESS IS GIVEN NO GENERAL POWER TO ISSUE LETTERS
PATENT OR TO REWARD INVENTORS AS IT WILL.  AN EXPERIENCE WITH GRANTS OF
MONOPOLY IN ENGLAND WAS FRESH IN THE MINDS OF THE FATHERS; THE LESSON
HAD BEEN UNDERLINED IN RECENT DIFFERENCES WITH THE CROWN."  HAMILTON,
PATENTS AND FREE ENTERPRISE (1941), P. 152, TEMPORARY NATIONAL ECONOMIC
COMMITTEE, MONOGRAPH NO. 31, 76TH CONG., 3D SESS.  THE PURPOSE "TO
PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS" ACCORDINGLY PROVIDES
THE STANDARDS FOR THE EXERCISE OF THE POWER AND SETS THE LIMITS BEYOND
WHICH IT MAY NOT GO.  THAT PURPOSE ALSO PROVIDES THE GUIDE FOR THE
INTERPRETATION OF PATENT LAWS ENACTED PURSUANT TO THAT POWER. 

IT IS A MISTAKE THEREFORE TO CONCEIVE OF A PATENT AS BUT ANOTHER FORM
OF PRIVATE PROPERTY.  THE PATENT IS A PRIVILEGE "CONDITIONED BY A
PUBLIC PURPOSE."  MERCOID CORP. V. MID-CONTINENT CO., 320 U.S. 661,
666.  THE PUBLIC PURPOSE IS "TO PROMOTE THE PROGRESS OF SCIENCE AND
USEFUL ARTS."  THE EXCLUSIVE RIGHT OF THE INVENTOR IS BUT THE MEANS TO
THAT END.  THAT WAS EARLY RECOGNIZED BY THIS COURT.  SEE PENNOCK V.
DIALOGUE, 2 PET. 1, 19; KENDALL V. WINSOR, 21 HOW.  322, 327-328;
SEYMOUR V. OSBORNE, 11 WALL.  516, 533-534.  BUT THE PAPER BAG CASE
MARKED A RADICAL DEPARTURE FROM THAT THEORY.  IT TREATED THE
"EXCLUSIVE" RIGHT OF THE INVENTOR AS SOMETHING AKIN TO AN "ABSOLUTE"
RIGHT.  IT SUBORDINATED THE PUBLIC PURPOSE OF THE GRANT TO THE SELF
INTEREST OF THE PATENTEE. 

THE RESULT IS THAT SUPPRESSION OF PATENTS HAS BECOME COMMONPLACE. 
PATENTS ARE MULTIPLIED TO PROTECT AN ECONOMIC BARONY OR EMPIRE, NOT TO
PUT NEW DISCOVERIES TO USE FOR THE COMMON GOOD.  FN1 "IT IS COMMON
PRACTICE TO MAKE AN INVENTION AND TO SECURE A PATENT TO BLOCK OFF A
COMPETITOR'S PROGRESS.  BY STUDYING HIS WARE AND DEVELOPING AN
IMPROVEMENT UPON IT, A CONCERN MAY 'FENCE IN' ITS RIVAL; BY A SERIES OF
SUCH MOVES, IT MAY PIN THE TRADE ENEMY WITHIN A TECHNOLOGY WHICH
RAPIDLY BECOMES OBSOLETE.  AS OFTEN AS NOT SUCH MANEUVERS RETARD,
RATHER THAN PROMOTE, THE PROGRESS OF THE USEFUL ARTS.  INVARIABLY THEIR
EFFECT IS TO ENLARGE AND TO PROLONG PERSONAL PRIVILEGE WITHIN THE
PUBLIC DOMAIN."  HAMILTON, OP. CIT., SUPRA, P. 161.  ONE PATENT IS USED
MERELY TO PROTECT ANOTHER.  THE USE OF A NEW PATENT IS SUPPRESSED SO AS
TO PRECLUDE EXPERIMENTATION WHICH MIGHT RESULT IN FURTHER INVENTION BY
COMPETITORS.  FN2  A WHOLE TECHNOLOGY IS BLOCKED OFF.  THE RESULT IS A
CLOG TO OUR ECONOMIC MACHINE AND A BARRIER TO AN ECONOMY OF ABUNDANCE. 

IT IS DIFFICULT TO SEE HOW THAT USE OF PATENTS CAN BE RECONCILED WITH
THE PURPOSE OF THE CONSTITUTION "TO PROMOTE THE PROGRESS OF SCIENCE AND
THE USEFUL ARTS."  CAN THE SUPPRESSION OF PATENTS WHICH ARRESTS THE
PROGRESS OF TECHNOLOGY BE SAID TO PROMOTE THAT PROGRESS?  IT IS
LIKEWISE DIFFICULT TO SEE HOW SUPPRESSION OF PATENTS CAN BE RECONCILED
WITH THE PROVISION OF THE STATUTE WHICH AUTHORIZES A GRANT OF THE
"EXCLUSIVE RIGHT TO MAKE, USE, AND VEND THE INVENTION OR DISCOVERY." 
REV. STAT. SEC. 4884, 35 U.S.C. SEC. 40.  HOW MAY THE WORDS "TO MAKE,
USE, AND VEND" BE READ TO MEAN "NOT TO MAKE, NOT TO USE, AND NOT TO
VEND"?  TAKE THE CASE OF AN INVENTION OR DISCOVERY WHICH UNLOCKS THE
DOORS OF SCIENCE AND REVEALS THE SECRETS OF A DREAD DISEASE.  IS IT
POSSIBLE THAT A PATENTEE COULD BE PERMITTED TO SUPPRESS THAT INVENTION
FOR SEVENTEEN YEARS (THE TERM OF THE LETTERS PATENT) AND WITHHOLD FROM
HUMANITY THE BENEFITS OF THE CURE?  BUT THERE IS NO DIFFERENCE IN
PRINCIPLE BETWEEN THAT CASE AND ANY CASE WHERE A PATENT IS SUPPRESSED
BECAUSE OF SOME IMMEDIATE ADVANTAGE TO THE PATENTEE. 

I THINK IT IS TIME TO RETURN TO THE EARLIER, AND I THINK THE TRUE,
PHILOSOPHY OF THE PATENT SYSTEM.  WE SHOULD NOT PASS ON TO CONGRESS THE
DUTY TO REMOVE THE PRIVATE PERQUISITES WHICH WE HAVE ENGRAFTED ON THE
PATENT LAWS.  THIS COURT WAS RESPONSIBLE FOR THEIR CREATION.  THIS
COURT SHOULD TAKE THE RESPONSIBILITY FOR THEIR REMOVAL.  I WOULD ADOPT
THE VIEW OF HOE V. KNAP, SUPRA. IN A CASE LIKE THE PRESENT (BUTTERWORTH
V. HOE, 112 U.S. 50, 61), AS IN INFRINGEMENT SUITS (MORTON SALT CO. V.
SUPPIGER CO., 314 U.S. 488, 492-494), THE COURT SITS AS A COURT OF
EQUITY.  IT SHOULD WITHHOLD ITS AID FROM A PATENTEE WHO HAS EMPLOYED OR
PLANS TO EMPLOY THE PATENT NOT TO EXPLOIT THE INVENTION BUT TO SUPPRESS
IT IN ORDER TO PROTECT ANOTHER PATENT OR OTHERWISE N3.  CF. ETHYL
GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 459.  IF THAT PURPOSE
WERE CLEAR, A PATENT SHOULD NOT ISSUE IN THE FIRST INSTANCE.  IF IT HAS
BEEN ISSUED AND NOT CANCELLED AND THE PATENT HAS BEEN SUPPRESSED, ANY
ONE SHOULD BE PERMITTED TO USE IT AT LEAST ON PAYMENT OF REASONABLE
ROYALTIES.  IN THAT WAY THE CONSTITUTIONAL OBJECTIVE WILL BE MORE
NEARLY REALIZED - THE PRODUCT OF THE INVENTIVE GENIUS OF THE HUMAN MIND
WILL BE PUT TO WORK IN THE ECONOMY. 

FN1  FOR ILLUSTRATIONS SEE INVESTIGATION OF CONCENTRATION OF ECONOMIC
POWER, HEARINGS, TEMPORARY NATIONAL ECONOMIC COMMITTEE, PT. 2(1939),
PP. 345, 776; HAMILTON, OP. CIT., SUPRA, PP. 46-47, 59. 

FN2  THE VICE IS THE SAME AS THE PRACTICE, CONSISTENTLY CONDEMNED BY
THIS COURT, OF WRITING INTO THE CLAIMS BROAD, GENERAL SPECIFICATIONS. 
AS STATED BY MR. JUSTICE BRADLEY IN CARLTON V. BOKEE, 17 WALL.  463,
471-472, "WE THINK IT PROPER TO REITERATE OUR DISAPPROBATION OF THESE
INGENIOUS ATTEMPTS TO EXPAND A SIMPLE INVENTION OF A DISTINCT DEVICE
INTO AN ALL-EMBRACING CLAIM, CALCULATED BY ITS WIDE GENERALIZATIONS AND
AMBIGUOUS LANGUAGE TO DISCOURAGE FURTHER INVENTION IN THE SAME
DEPARTMENT OF INDUSTRY  ..." 

FN3  THESE SITUATIONS ARE TO BE DISTINGUISHED FROM THE CASE OF THE
INVENTOR WHO THOUGH HE HAS AN EXPECTATION OF EXPLOITING THE PATENT HAS
NOT YET ARRANGED THE NECESSARY FINANCING, OR, FOR OTHER REASONS, HAS
NOT YET BEEN ABLE TO GO INTO PRODUCTION. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I WOULD AFFIRM THE JUDGMENT.  BUT I DO NOT REACH THE INTERESTING AND
IMPORTANT QUESTIONS DEBATED BY THE COURT'S OPINION AND MY DISSENTING
BRETHREN.  THEY ARE OF SUCH A CHARACTER THAT, IN MY OPINION, THEY
SHOULD NOT BE DETERMINED IN THE ABSENCE OF A RECORD PRESENTING FACTS
AND ISSUES MAKING THIS NECESSARY.  IN THIS CASE THE FACTS DO NOT SO
CLEARLY PRESENT THE ISSUES OF "FENCING" AND "BLOCKING" THAT DECISION
UPON THEM IS REQUIRED OR APPROPRIATE. 

THOSE ISSUES WERE NOT RAISED OR CONSIDERED UNTIL THE CASE REACHED THE
COURT OF APPEALS.  EVIDENCE CONCERNING INTENT TO SUPPRESS WAS NOT
RECEIVED IN THE DISTRICT COURT AND PETITIONER IS ENTITLED TO ITS DAY IN
COURT UPON THAT QUESTION, UNLESS IT HAS CONCEDED IT.  THE RECORD, AS
THIS COURT'S OPINION INDICATES, IS NOT CLEAR THAT THE CONCESSION HAS
BEEN MADE WITH THE EFFECT OF ADMITTING THAT PETITIONER HAD NO INTENTION
TO EXPLOIT THE PATENT.  IF, AS THE TRIAL COURT FOUND, THE MACHINE
WITHOUT THE SPLITTING KNIFE WOULD NOT "PRODUCE ANY USEFUL RESULT," THIS
FACT TOGETHER WITH THE ASSERTION OF THE CLAIMS RELATING TO THE FULL
COMBINATION, OR WITH IT AND THE CONCESSIONS APPARENTLY MADE IN THE
COURT OF APPEALS, MIGHT BE SUFFICIENT TO SUSTAIN THAT COURT'S
CONCLUSION THAT THE ONLY PURPOSE OF THE ALLEGED INVENTION WAS TO
"FENCE" OR "BLOCK."  BUT THE COURT OF APPEALS EXPRESSLY REJECTED THE
TRIAL COURT'S FINDING IN THIS RESPECT; AND A SHOWING OF MOTION PICTURES
HERE, SUCH AS TOOK PLACE IN THE COURT OF APPEALS, APPEARED TO
DEMONSTRATE CONCLUSIVELY THAT THE MACHINE NOT ONLY WORKS WITHOUT THE
CUTTING KNIFE, BUT PRODUCES A HIGHLY USEFUL RESULT IF THE PEARS ARE
SPLIT BEFORE BEING PLACED IN THE MACHINE FOR BOBBING, PEELING AND
CORING.  WHATEVER FOUNDATION MIGHT HAVE BEEN FOUND, THEREFORE, TO
SUPPORT THE CONCLUSION OF INTENT TO FENCE OR BLOCK, IN THE MACHINE'S
LACK OF CAPACITY TO PRODUCE ANY USEFUL RESULT, DISAPPEARS FROM THE
CASE.    THE RECORD, HOWEVER, DISCLOSES ANOTHER GROUND WHICH WAS
CONSIDERED IN THE PATENT OFFICE AND THE DISTRICT COURT, WHOLLY
SUFFICIENT TO DISPOSE OF THE CASE AND REQUIRING AFFIRMANCE OF THE
JUDGMENT.  THIS WAS THAT THE CLAIMS IN ISSUE ARE TOO BROAD TO COVER THE
INVENTION.  NO ONE OF THE CLAIMS SPECIFIES OR INDICATES THAT THE PEARS
MUST BE PRESPLIT IN ORDER FOR THE INVENTION TO BE USED OR TO PRODUCE A
USEFUL RESULT.  WITH COMMENDABLE CANDOR, COUNSEL CONCEDED THIS IN THE
ARGUMENT HERE, AND INDEED THE CLAIMS ON THEIR FACE REQUIRE THE
CONCESSION.  PATENTS ARE NOT TO BE GRANTED UPON CLAIMS WHICH DO NOT
ACCURATELY DESCRIBE THE INVENTION AND ALL OF ITS ESSENTIAL FEATURES. 
THESE CLAIMS ARE STATED IN LANGUAGE BROAD ENOUGH TO INCLUDE WHOLE
PEARS.  ADMITTEDLY THE MACHINE WILL NOT WORK, WITHOUT THE KNIFE, AS TO
THEM.  IN MY JUDGMENT THEREFORE THE CLAIMS ARE TOO BROAD.  THE PATENT
OFFICE AND THE DISTRICT COURT SO FOUND.  THE QUESTION IS OPEN AND WAS
PRESENTED IN THE COURT OF APPEALS AND HERE.  ACCORDINGLY I WOULD AFFIRM
THE JUDGMENT. 
..END :














U.S. V. COMMODORE PARK, 324 U.S. 386 


NO. 495.  ARGUED FEBRUARY 9, 1945.  - DECIDED MARCH 26, 1945.  - 143
F.2D 720, REVERSED. 


1.  AN OWNER OF LAND IN THE BED OF A NAVIGABLE STREAM BETWEEN HIGH AND
LOW WATER MARK, THOUGH HIS TITLE IS RECOGNIZED BY THE STATE, IS NOT
ENTITLED TO COMPENSATION FROM THE UNITED STATES FOR A DECREASE IN THE
VALUE OF THE LAND RESULTING FROM OPERATIONS BY THE UNITED STATES FOR
THE IMPROVEMENT OF NAVIGATION.  P. 390. 

2.  A RIPARIAN OWNER WHOSE FAST LANDS WERE NOT INVADED IS NOT
ENTITLED TO COMPENSATION FROM THE UNITED STATES FOR A DECREASE,
RESULTING FROM OPERATIONS BY THE UNITED STATES FOR THE IMPROVEMENT OF
NAVIGATION, IN SUCH VALUE AS HIS LANDS MAY HAVE HAD BY REASON OF THEIR
PROXIMITY TO NAVIGABLE WATERS.  P. 390. 

3.  A PROJECT PURSUANT TO WHICH A NAVIGABLE WATER WAS DREDGED AND THE
DREDGED MATERIAL WAS DEPOSITED IN A CONNECTING NAVIGABLE WATER, THOUGH
ORIGINATED FOR THE IMPROVEMENT OF SHORE FACILITIES AND THOUGH
NAVIGATION OF THE CONNECTING WATER WAS THEREBY BLOCKED, WAS AN
INTEGRATED PROJECT WHICH BORE A SUBSTANTIAL RELATION TO COMMERCE OR
NAVIGATION, AND THE RULE OF GOVERNMENTAL NON-LIABILITY WAS APPLICABLE. 
P. 391. 

4.  THE CONSTITUTIONAL POWER OF THE FEDERAL GOVERNMENT TO REGULATE
COMMERCE MAY BE EXERCISED TO BLOCK NAVIGATION AT ONE PLACE IN ORDER TO
AID IT AT ANOTHER.  P. 393. 

UNITED STATES V. COMMODORE PARK, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 323 U.S. 698, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE PLAINTIFF IN A SUIT AGAINST THE UNITED STATES UNDER THE TUCKER
ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES DREDGED A TIDEWATER NAVIGABLE BAY AND DEPOSITED THE
DREDGED MATERIALS IN A NAVIGABLE ARM OF THE BAY CALLED MASON CREEK,
THEREBY DESTROYING ITS NAVIGABILITY, AND IMPAIRING CERTAIN BENEFITS
ALLEGED TO INHERE IN THE PROXIMITY OF THE LAND TO A NAVIGABLE TIDEWATER
CREEK.  THE BROAD QUESTION PRESENTED IS WHETHER THE FIFTH AMENDMENT
REQUIRES THE GOVERNMENT TO COMPENSATE AN OWNER OF RESIDENTIAL PROPERTY
CONTIGUOUS TO THE CREEK, WHOSE FAST LANDS, THOUGH NOT PHYSICALLY
INVADED, WERE DECREASED IN MARKET VALUE. 

COMMODORE PARK, INC., AN OWNER OF LANDS ON THE CREEK ABOUT A MILE
AWAY FROM THE FILLED-IN SEGMENT, BROUGHT THIS SUIT IN THE DISTRICT
COURT UNDER THE TUCKER ACT, 24 STAT. 505, 28 U.S.C. 41(20) FOR DAMAGES
RESULTING FROM A "TAKING" BY THE GOVERNMENT OF ITS PROPERTY FOR PUBLIC
USE, IN CONNECTION WITH A NAVAL FACILITIES EXPANSION PROGRAM.  AS THE
CASE COMES TO US,  FN1  THE MATERIAL FINDINGS, WHICH WE ACCEPT, ARE
THAT THE GOVERNMENT (1) CAUSED MUD AND SILT TO SETTLE ON THAT PART OF
THE LAND IN QUESTION LYING IN THE BED OF WHAT HAD BEEN A NAVIGABLE
TIDEWATER CREEK BEFORE THE PROJECT WAS COMPLETED, AND (2) DESTROYED THE
NAVIGABILITY OF THE CREEK, THEREBY DEPRIVING RESPONDENT OF THAT PART OF
THE MARKET VALUE OF ITS FAST LAND ATTRIBUTABLE TO ITS PROXIMITY AND
ACCESSIBILITY TO A FRESH TIDEWATER CREEK IN ITS NATURAL AND NAVIGABLE
STATE.  THE GOVERNMENT'S ANSWER, SO FAR AS MATERIAL TO OUR DECISION, IS
THAT RESPONDENT'S ALLEGED OWNERSHIP OF THE LAND BETWEEN HIGH AND LOW
WATER MARKS AND ITS "RIPARIAN RIGHTS" OF ACCESS TO THE NAVIGABLE WATERS
BOTH WERE SUBORDINATE TO THE GOVERNMENT'S PLENARY AUTHORITY OVER
NAVIGABLE WATERS OF THE UNITED STATES, THAT ITS PROGRAM WAS EFFECTUATED
PURSUANT TO THAT AUTHORITY, AND THAT CONSEQUENTLY THERE HAD BEEN NO
"TAKING" OF "PRIVATE PROPERTY" WITHIN THE MEANING OF THE FIFTH
AMENDMENT. 

THE DISTRICT COURT HELD THAT THE ENTIRE PROJECT HAD NO SUBSTANTIAL
RELATION TO NAVIGATION OR COMMERCE, AND FOUND THAT THE MARKET VALUE OF
THE LAND LYING BETWEEN HIGH AND LOW WATER MARKS HAD BEEN DECREASED BY
THE MUD AND SILT DEPOSITS, AND THAT RESPONDENT'S FAST LAND HAD BEEN
REDUCED IN VALUE BECAUSE OF THE LOSS OF THE RIPARIAN RIGHTS OF ACCESS
FOR NAVIGATION, FISHING, BOATING, AND THE LIKE.  IT ACCORDINGLY
RENDERED JUDGMENT FOR RESPONDENT "FOR THE DAMAGES IT  ...  SUSTAINED AS
A RESULT OF THE TAKING OF ITS RIPARIAN RIGHTS AND LANDS  ..."  THE
CIRCUIT COURT OF APPEALS UNANIMOUSLY AGREED THAT THE DREDGING OPERATION
WAS DONE IN FURTHERANCE OF NAVIGATION AND COMMERCE, BUT A MAJORITY HELD
THAT THE DEPOSITING OF THE DREDGED MATERIAL IN THE CREEK WAS NOT IN AID
OF NAVIGATION, AND THEREFORE AFFIRMED THE DISTRICT COURT.  143 F.2D
720.  BECAUSE IT IS IMPORTANT THAT THE GOVERNMENT'S POWER TO ENGAGE IN
PROJECTS IN AID OF NAVIGATION AND COMMERCE BE CLEARLY DEFINED, WE
GRANTED CERTIORARI, 323 U.S. 698. 

A FEW ADDITIONAL FACTS DRAWN FROM THE RECORD WILL SERVE TO CLARIFY
THE ISSUES. 

IN 1940, THE RESPONDENT OWNED A RESIDENTIAL REAL ESTATE DEVELOPMENT
IN NORFOLK, VIRGINIA, LOCATED ON THE EAST SIDE OF MASON CREEK, A
NAVIGABLE TIDEWATER WHICH EXTENDED INLAND ABOUT FOUR OR FIVE MILES FROM
THE NAVIGABLE WATERS OF WILLOUGHBY BAY.  WEST OF MASON CREEK, AND
ADJACENT TO WILLOUGHBY BAY, WAS LOCATED THE HAMPTON ROADS NAVAL
OPERATING BASE, WHICH MAINTAINED A NAVAL AIR STATION WITH SHORE
FACILITIES FOR SEAPLANES.  IT WAS THIS STATION WHICH, UNDER THE
AUTHORITY OF CONGRESS,  FN2  THE NAVY DEPARTMENT ENLARGED AND
IMPROVED.  IN ORDER TO PROVIDE SUITABLE WATERS FOR THE OPERATION OF
LARGE SEAPLANES, THE NAVY, ACTING IN CONJUNCTION WITH THE WAR
DEPARTMENT, 30 STAT. 1121, 1151-1155, DREDGED WILLOUGHBY BAY TO A DEPTH
OF 10 TO 15 FEET BELOW MEAN LOW WATER.  ADDITIONAL LANDS, ADJACENT TO
THE BASE, WERE BOUGHT OR CONDEMNED BY THE GOVERNMENT, ON BOTH THE EAST
AND WEST SIDES OF MASON CREEK.  THE MATERIALS DREDGED FROM THE BAY WERE
IN PART DEPOSITED IN MASON CREEK BETWEEN THE SHORES OF LANDS OWNED BY
THE GOVERNMENT ADJACENT TO THE BAY.  BY THIS PROCESS, THE BED OF MASON
CREEK WAS AT THAT POINT RAISED TO THE LEVEL OF ITS SHORES, THEREBY
BECOMING INCORPORATED AS AN INTEGRAL AND USEFUL PART OF THE NAVAL
OPERATING BASE.  THIS FILL, REINFORCED BY BULWARKS, DYKES AND RETAINING
WALLS, CUT OFF THE REMAINDER OF MASON CREEK, ALONG WHICH RESPONDENT'S
LAND BORDERED, FROM ANY NAVIGABLE OUTLET TO WILLOUGHBY BAY AND THE
SEA.  IT ALSO BLOCKED OFF THE TIDAL MOVEMENTS WHICH PREVIOUSLY HAD
PROVIDED AN ELEMENT OF FRESHNESS IN MASON CREEK'S WATERS, THEREBY
RESULTING IN A STANDING AND STAGNANT POOL.  THIS CONDITION, AT THE
REQUEST OF PROPERTY OWNERS, WAS LATER ALLEVIATED BY DIGGING A CHANNEL
IN THE STREAM'S BED, AND CONNECTING IT WITH THE BAY BY A CULVERT, MUCH
SMALLER IN AREA THAN THE ORIGINAL BED.  AN IRON GRATE, PLACED WHERE THE
CULVERT EMPTIED ITS WATERS INTO THE BAY, CLOSED IT TO NAVIGATION.  WE
MUST TAKE IT FROM THE FINDINGS BELOW THAT THE SIZE AND CONSTRUCTION OF
THE CULVERT WERE INADEQUATE TO AFFORD A COMPLETELY FREE TIDAL MOVEMENT,
AND THAT AS A RESULT, THE WATERS OF MASON CREEK BECAME "SEMI-STAGNANT,"
DEPRIVING THEM OF THE SAME FRESHNESS THEY HAD POSSESSED BEFORE THE WORK
WAS DONE. 

FIRST.  THE JUDGMENT FOR RESPONDENT INVOLVES NO PHYSICAL INVASION OF
ITS FAST LANDS.  ITS PROPERTY WAS MORE THAN A MILE FROM THE FILL MADE
IN MASON CREEK.  THE ONLY LAND FOR WHICH COMPENSATION WAS AWARDED
BECAUSE OF MUD AND SILT DEPOSITS WAS THAT PART OF THE CREEK'S BED
BETWEEN HIGH AND LOW WATER MARKS.  THAT VIRGINIA RECOGNIZES
RESPONDENT'S TITLE TO SUCH LAND  FN3  CANNOT GIVE RESPONDENT A RIGHT TO
COMPENSATION IF ITS MARKET VALUE IS IMPAIRED AS A RESULT OF WORK DONE
BY THE UNITED STATES IN THE INTEREST OF IMPROVEMENT OF NAVIGATION. 
UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 312 U.S. 592, 596-598,
SET AT REST ANY REMAINING DOUBT CONCERNING THE DOMINANT POWER OF THE
GOVERNMENT TO CONTROL AND REGULATE NAVIGABLE WATERS IN THE INTEREST OF
COMMERCE,  FN4 WITHOUT PAYMENT OF COMPENSATION TO ONE WHO UNDER STATE
LAW MAY HOLD "TECHNICAL" LEGAL TITLE (AS BETWEEN HIMSELF AND OTHERS
THAN THE GOVERNMENT) TO A PART OF THE NAVIGABLE STREAM'S BED. 

SECOND.  NOR DOES A RIPARIAN OWNER ACQUIRE A UNIQUE PRIVATE RIGHT
DISTINCT FROM THAT HELD BY ALL OTHERS, TO HAVE ACCESS TO AND ENJOYMENT
OF NAVIGABLE WATERS AND TO RECOVER COMPENSATION FROM THE GOVERNMENT
BECAUSE DEPRIVED OF THAT PRIVILEGE BY AN AUTHORIZED GOVERNMENTAL CHANGE
IN A STREAM.  FN5  RESPONDENT'S PROPERTY WAS ALWAYS SUBJECT TO A
DOMINANT SERVITUDE; IT DID NOT HAVE A VESTED RIGHT TO HAVE THIS
NAVIGABLE STREAM REMAIN FIXED AND UNALTERED SIMPLY BECAUSE OF THE
CONSEQUENT REFLECTED ADDITIONAL MARKET VALUE TO ADJACENT LANDS. 
WHATEVER MARKET VALUE OF RIPARIAN LANDS MAY BE ATTRIBUTABLE TO THEIR
CLOSENESS TO NAVIGABLE WATERS, DOES NOT DETRACT FROM THE GOVERNMENT'S
"ABSOLUTE" POWER,  FN6  IN THE INTERESTS OF COMMERCE, TO MAKE NECESSARY
CHANGES IN A STREAM.  IN SHORT, AS AGAINST THE DEMANDS OF COMMERCE, AN
OWNER OF LAND ADJACENT TO NAVIGABLE WATERS, WHOSE FAST LANDS ARE LEFT
UNINVADED, HAS NO PRIVATE RIPARIAN RIGHTS OF ACCESS TO THE WATERS TO DO
SUCH THINGS AS "FISHING AND BOATING AND THE LIKE," FOR WHICH RIGHTS THE
GOVERNMENT MUST PAY.  FN7 RIPARIAN RIGHTS OF ACCESS TO NAVIGABLE WATERS
CANNOT, AS AGAINST THE GOVERNMENT'S POWER TO CONTROL COMMERCE, BE
BOUGHT AND SOLD. 

THIRD.  IT IS ARGUED THAT THE FOREGOING RULE OF GOVERNMENTAL NON
LIABILITY IS INAPPLICABLE TO THIS CASE.  SINCE THE NAVY DEPARTMENT
ORIGINATED THIS PLAN WITH A VIEW TO IMPROVEMENT OF SHORE FACILITIES, WE
ARE ASKED TO HOLD THAT NEITHER THE DREDGING IN WILLOUGHBY BAY NOR THE
DEPOSIT OF THE DREDGED MATERIAL IN MASON CREEK BORE ANY REAL OR
SUBSTANTIAL RELATION TO COMMERCE OR NAVIGATION.  SUCH A HOLDING WAS THE
BASIS OF THE DISTRICT COURT'S JUDGMENT.  THE CIRCUIT COURT HELD THAT
THE DREDGING IN WILLOUGHBY BAY WAS, BUT THE DEPOSIT IN MASON CREEK WAS
NOT, RELATED TO COMMERCE OR NAVIGATION.  WE CANNOT AGREE.  THE "FACT
THAT PURPOSES OTHER THAN NAVIGATION WILL ALSO BE SERVED COULD NOT
INVALIDATE THE EXERCISE OF THE AUTHORITY CONFERRED, EVEN IF THOSE OTHER
PURPOSES WOULD NOT ALONE HAVE JUSTIFIED AN EXERCISE OF CONGRESSIONAL
POWER."  ARIZONA V. CALIFORNIA, 283 U.S. 423, 456. 

ALL THE WATERS AFFECTED WERE NAVIGABLE.  THE CONSTITUTION ENTRUSTED
TO CONGRESS THE RESPONSIBILITY OF DETERMINING WHAT OBSTRUCTIONS MAY, OR
MAY NOT, BE PLACED IN SUCH WATERS.  FN8 THIS POWER CONGRESS MAY
EXERCISE ITSELF OR THROUGH ITS DULY AUTHORIZED AGENTS.  FN9  HERE, THE
WAR DEPARTMENT, SELECTED BY CONGRESS TO PASS UPON WHEN, AND TO WHAT
EXTENT, NAVIGABLE WATERS MAY BE ALTERED OR OBSTRUCTED, PERMITTED, AND
ACTUALLY SUPERVISED, THE PROGRAM ACCOMPLISHED.  EVEN THOUGH CASES MIGHT
ARISE IN WHICH THE COURTS WOULD LOOK BEHIND THE JUDGMENT OF THIS
SPECIALLY AUTHORIZED AGENCY,  FN10  THIS IS NOT SUCH A CASE. 

WHILE THIS PROJECT TOUCHED TWO SEPARATE, ALTHOUGH CLOSELY RELATED,
BODIES OF NAVIGABLE WATERS, AND LOOKED TO IMPROVEMENT OF SHORE AS WELL
AS WATER FACILITIES, THE ENTIRE PROGRAM AS TO THE WATERS WAS DESIGNED
TO ACHIEVE ONE CLOSELY INTEGRATED UNIT.  THAT THERE WERE TWO BODIES OF
NAVIGABLE WATERS TO WHICH THE ONE PROGRAM RELATED, DOES NOT DETRACT
FROM CONGRESSIONAL POWER AS TO EITHER, FOR ITS POWERS ARE BROAD ENOUGH
TO JUSTIFY ONE UNIFIED PROGRAM FOR THE CONNECTED BODY OF WATERS TO THE
END THAT COMMERCE IN GENERAL MAY BE FOSTERED.  FN11 

THUS, HAVING POWER UNDER THE COMMERCE CLAUSE TO OBSTRUCT NAVIGATION
BY DEPOSITING THE DREDGED SOIL IN WILLOUGHBY BAY, THE GOVERNMENT WAS
LIKEWISE AUTHORIZED TO DEPOSIT IN MASON CREEK FOR THE SAME PURPOSE. 
THERE IS POWER TO BLOCK NAVIGATION AT ONE PLACE TO FOSTER IT AT ANOTHER
N12.  WHETHER THIS BLOCKING BE DONE BY ALTERING THE STREAM'S COURSE, BY
LIGHTHOUSES, JETTIES, PIERS, OR A DAM MADE OF DREDGED MATERIAL, THE
GOVERNMENT'S POWER IS THE SAME AND IN THE INSTANT CASE IS DERIVED FROM
THE SAME SOURCE - ITS AUTHORITY TO REGULATE COMMERCE.  SINCE THE
JUDGMENT AWARDED RESTED ENTIRELY UPON THE CONCLUSION THAT RESPONDENT'S
PROPERTY HAD BEEN TAKEN BY "FILLING AND CLOSING MASON CREEK," AND SINCE
ALL OF RESPONDENT'S "RIPARIAN RIGHTS" WERE SUBORDINATE TO THE
GOVERNMENT'S POWER TO CLOSE THE STREAM, THE JUDGMENT IS REVERSED. 

FN1  IN THE DISTRICT COURT RESPONDENT ALSO CLAIMED THAT MUD AND SILT
HAD BEEN CAST ON HIS FAST LANDS.  THIS PART OF THE CLAIM WAS DENIED BY
THE DISTRICT COURT, AND WE NEED NOT CONSIDER IT. WITH REFERENCE TO IT
THE CIRCUIT COURT OF APPEALS SAID:  "THIS RELIEF DREDGING GAVE RISE TO
THE ADDITIONAL CLAIM ON THE PART OF THE PLAINTIFF THAT MUD AND SILT HAD
BEEN DEPOSITED ON ITS LAND, NOT ONLY BETWEEN HIGH AND LOW WATER MARK
BUT ALSO ABOVE HIGH WATER MARK.  BUT THE DISTRICT JUDGE DISALLOWED THIS
PART OF THE CLAIM AS HE FOUND THAT NO MATERIAL DAMAGE HAD BEEN SUFFERED
IN EXCESS OF THE BENEFIT WHICH THE PLAINTIFF HAD DERIVED FROM THE
PARTIAL FILLING OF LOW MARSHES, INLETS AND COVES ON ITS PROPERTY.  NO
APPEAL WAS TAKEN BY THE PLAINTIFF."  UNITED STATES V. COMMODORE PARK,
143 F.2D 720, 722. 

FN2  48 STAT. 957; 53 STAT. 590-592; 53 STAT. 757, 772-773. 

FN3  SCOTT V. DOUGHTY, 124 VA. 358, 97 S.E. 802; HITE V. TOWN OF
LURAY, 175 VA. 218, 8 S.E.2D 369. 

FN4  UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, 60, 62, 68,
72; SCRANTON V. WHEELER, 179 U.S. 141, 163. 

FN5  SCRANTON V. WHEELER, SUPRA, 159-160; STOCKTON V. BALTIMORE &
N.Y.R. CO., 32 F. 9, 20. 

FN6  UNITED STATES V. RIVER ROUGE CO., 269 U.S. 411, 419; GILMAN V.
PHILADELPHIA, 3 WALL.  713, 724-5. 

FN7  GIBSON V. UNITED STATES, 166 U.S. 269; SCRANTON V. WHEELER,
SUPRA. 

FN8  UNITED STATES V. CHANDLER-DUNBAR CO., SUPRA, 62-67; PENNSYLVANIA
V. WHEELING & BELMONT BRIDGE CO., 18 HOW.  421. 

FN9  UNION BRIDGE CO. V. UNITED STATES, 204 U.S. 364, 377-388;
GREENLEAF-JOHNSON LUMBER CO. V. GARRISON, 237 U.S. 251, 268; SOUTH
CAROLINA V. GEORGIA, 93 U.S. 4, 13. 

FN10  SEE GREENLEAF-JOHNSON LUMBER CO. V. GARRISON, SUPRA, 268;
UNITED STATES V. APPALACHIAN ELECTRIC POWER CO., 311 U.S. 377, 424;
ARIZONA V. CALIFORNIA, 283 U.S. 423, 456. 

FN11  UNITED STATES V. APPALACHIAN POWER CO., SUPRA, 426-437;
OKLAHOMA V. ATKINSON CO., 313 U.S. 508, 527-528. 

FN12  SOUTH CAROLINA V. GEORGIA, SUPRA; SCRANTON V. WHEELER, SUPRA;
ARIZONA V. CALIFORNIA, SUPRA, 451-452. 

MR. JUSTICE ROBERTS IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED FOR THE REASONS STATED IN THE OPINION OF THE CIRCUIT COURT OF
APPEALS, 143 F.2D 721. 
..END :



















ESTATE OF PUTNAM V. COMM'R, 324 U.S. 393 


NO. 534.  ARGUED FEBRUARY 2, 1945.  - DECIDED MARCH 26, 1945.  - 144
F.2D 756, REVERSED. 


1.  WHETHER AT THE DATE OF THE DEATH OF A TAXPAYER A DIVIDEND HAS
"ACCRUED," WITHIN THE MEANING OF SEC. 42 OF THE REVENUE ACT OF 1938, SO
AS TO BE INCLUDIBLE IN COMPUTING INCOME OF THE TAXPAYER, IS A QUESTION
OF FEDERAL LAW.  P. 395. 

2.  A DIVIDEND WHICH WAS DECLARED PRIOR TO THE DATE OF THE DEATH OF A
TAXPAYER (ASSUMED TO BE ON THE CASH RECEIPTS BASIS), BUT WHICH BY THE
TERMS OF THE DECLARATION WAS PAYABLE TO STOCKHOLDERS OF RECORD ON A
DATE SUBSEQUENT TO HIS DEATH, WAS NOT AT THE DATE OF THE DEATH OF THE
TAXPAYER "ACCRUED," WITHIN THE MEANING OF SEC. 42 OF THE REVENUE ACT OF
1938, AND WAS NOT INCLUDIBLE IN COMPUTING NET INCOME OF THE TAXPAYER. 
P. 398. 

ESTATE OF PUTNAM; GUARANTY TRUST CO., EXECUTOR, V. COMMISSIONER OF
INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 702, TO REVIEW THE REVERSAL OF TWO ORDERS OF THE
BOARD OF TAX APPEALS (45 B.T.A. 517) INVOLVING THE INCOME TAX LIABILITY
OF A TAXPAYER AND OF HIS ESTATE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE BRINGS HERE FOR REVIEW A JUDGMENT WHICH APPLIES SECTION 42,
REVENUE ACT OF 1938,  FN1 SO AS TO "ACCRUE" CORPORATE DIVIDENDS ON THE
DATE OF THEIR DECLARATION RATHER THAN THE LATER RECORD OR PAYMENT
DATES.  THE RESULT IS THAT THE DIVIDENDS ARE TAXABLE AS INCOME TO A
DECEDENT TAXPAYER INSTEAD OF TO HIS ESTATE. 

CERTIORARI WAS GRANTED  FN2  BECAUSE OF A CONFLICT IN CONCLUSION
BETWEEN TAR PRODUCTS CORP. V. COMMISSIONER, 130 F.2D 866, AND THIS CASE
AS TO THE DATE OF ACCRUAL OF CORPORATE DIVIDENDS.  THE RESOLUTION OF
THIS CONFLICT IS COMPLICATED BY FURTHER CONFLICTS BETWEEN THE DECISION
BELOW AND THOSE IN OTHER CIRCUITS AS TO WHETHER THE GOVERNING RULE IS
TO BE DRAWN FROM FEDERAL OR STATE LAW.  HELVERING V. MCGLUE'S ESTATE,
119 F.2D 167, 171; COMMISSIONER V. COHEN, 121 F.2D 348, 349. 

THE DECEDENT, HENRY W. PUTNAM, DIED ON MARCH 30, 1938.  PRIOR TO HIS
DEATH SEVERAL CORPORATIONS IN WHICH HE OWNED STOCK DECLARED DIVIDENDS
WHICH BY THE RESOLUTIONS WERE PAYABLE AND WERE PAID TO STOCKHOLDERS OF
RECORD ON DATES WHICH WERE SUBSEQUENT TO HIS DEATH.  EACH OF THESE
DIVIDENDS, AGGREGATING IN ALL $24,051.75, WAS HELD BY THE COMMISSIONER
TO CONSTITUTE INCOME TO THE DECEDENT UNDER THE PROVISIONS OF SEC. 42. 
THE BOARD OF TAX APPEALS DECIDED THAT THE TIME OF ACCRUAL DEPENDS UPON
THE VARYING STATE DECISIONS AS TO WHEN A CORPORATE DEBT ARISES UPON A
DECLARATION OF DIVIDEND WITH A PROVISION FOR ITS PAYMENT TO
STOCKHOLDERS OF RECORD ON SOME FUTURE DATE.  45 B.T.A. 517.  THIS
RESULTED IN AN AGREEMENT IN PART WITH THE COMMISSIONER'S
DETERMINATION. 

THE CIRCUIT COURT OF APPEALS WAS OF THE VIEW THAT FEDERAL LAW
CONTROLLED THE DISPOSITION OF THE CONTROVERSY AND THAT THE DIVIDEND
ACCRUED ON ITS DECLARATION.  COMMISSIONER V. GUARANTY TRUST CO., 144
F.2D 756. 

WE THINK THE FEDERAL LAW CONTROLS.  A FEDERAL REVENUE ACT APPLICABLE
THROUGHOUT THE NATION FIXES LIABILITY ON THE DECEDENT TAXPAYER UNDER
SEC. 42 IF THE DIVIDEND IS "ACCRUED."  THE MEANING OF THAT WORD IN THIS
PERMIT ITS MEANING TO BE VARIED BY STATE LAW.  BURNET V. HARMEL, 287
U.S. 103, 110; PALMER V. BENDER, 287 U.S. 551, 555; UNITED STATES V.
PELZER, 312 U.S. 399, 402-3.  SECTION 42 LAYS DOWN THE TEST OF ACCRUAL
FOR THE TAXATION OF A DECEDENT'S INCOME AND THE DEFINITION OF THE
MEANING AND EXTENT OF THAT TEST IS A FEDERAL RESPONSIBILITY.  THE
PRESENT PROBLEM IS CLOSELY AKIN TO THAT RESOLVED IN LYETH V. HOEY, 305
U.S. 188, 193.  IN THAT CASE AN HEIR RECEIVED A SUM IN SETTLEMENT OF
LITIGATION OVER A WILL.  ITS TAXABILITY AS INCOME UNDER THE FEDERAL
STATUTE DEPENDED UPON THE MEANING OF THE STATUTORY EXEMPTION "ACQUIRED
BY INHERITANCE."  THE LAW OF THE TESTATOR'S DOMICILE HELD SUMS PAID AS
WILL COMPROMISES WERE NOT INHERITANCES.  ACTING ON THE PRINCIPLE THAT,
IN THE INTEREST OF UNIFORMITY, EXEMPTIONS UNDER FEDERAL STATUTES SHOULD
BE DETERMINED BY FEDERAL COURTS, WE REACHED A CONTRARY FEDERAL RULE. 
THE SAME PRINCIPLE LEADS TO OUR CONCLUSION IN THIS CASE.  FN3 

WE RECENTLY EXAMINED THE CONGRESSIONAL PURPOSE IN THE ENACTMENT OF
SEC. 42.  HELVERING V. ENRIGHT, 312 U.S. 636.  THAT PURPOSE WAS TO
COVER INTO INCOME THE "ACCRUALS" THERETOFORE UNREPORTED AS INCOME OF A
DECEDENT TAXPAYER WHO REPORTED ON A CASH BASIS.  BY "ACCRUAL" THE
INCOME SO ACCRUED BECAME SUBJECT TO INCOME TAX AS DECEDENT'S INCOME. 
THESE "ACCRUALS" HAD THERETOFORE ESCAPED TAXATION AS THE INCOME OF
DECEDENT, BECAUSE NO CASH WAS RECEIVED DURING DECEDENT'S LIFE. 
MOREOVER, SUCH PAYMENTS WERE HELD NOT TO BE THE INCOME OF DECEDENT'S
ESTATE ON THE THEORY THAT THE "ACCRUAL" WAS A PART OF THE CORPUS OF THE
ESTATE AT DEATH AND THEREFORE THE ESTATE'S SUBSEQUENT RECEIPT OF THE
"ACCRUALS" AS CASH WAS NOT INCOME TO THE ESTATE.  HELVERING V. ENRIGHT,
SUPRA, P. 639.  IN THE INSTANT CASE THERE IS NO AVOIDANCE OF INCOME
TAXES SUCH AS SEC. 42 WAS DESIGNED TO PREVENT.  IF THE DIVIDEND DOES
NOT "ACCRUE" TO DECEDENT ON THE DATE OF DECLARATION SO AS TO BE TAXABLE
AS INCOME TO HIM, IT WILL APPEAR AS AN ITEM OF INCOME IN THE INCOME TAX
RETURN OF THE ESTATE OR OF THE STOCKHOLDER WHO OWNS THE STOCK ON THE
RECORD DATE.  FN4  TAXWISE, IT MAY BE IMPORTANT UPON WHOM THE TAX FALLS
AS THE SUM ASSESSED MAY VARY ACCORDING TO THE TAX BRACKET OF THE
TAXPAYER.  THIS RESULT, HOWEVER, IS APART FROM THE PURPOSE OF CONGRESS
IN ENACTING SEC. 42 AND IS NOT SIGNIFICANT IN THE INTERPRETATION OF THE

WE ASSUME THAT DECEDENT WAS A TAXPAYER ON THE CASH RECEIPTS BASIS. 
COMPARE 144 F.2D 756, 757.  FN6  OUR INQUIRY LEADS US ONLY TO A
DECISION AS TO WHETHER A DIVIDEND ACCRUES AS INCOME ON ITS DECLARATION
WITH A SUBSEQUENT RECORD DATE, NOT TO WHETHER IT ACCRUES ON ITS RECORD
DATE OR ITS PAYMENT DATE.  A DECLARATION OF A DIVIDEND TO STOCKHOLDERS
OF RECORD ON THE DATE OF THE RESOLUTION BUT PAYABLE IN THE FUTURE IS
NOT INVOLVED.  THIS COURT HAS SUGGESTED THAT A TAX BE DEEMED TO ACCRUE
AS A CHARGE AGAINST A TAXPAYER WHEN EVENTS "OCCUR WHICH FIX THE AMOUNT
OF THE TAX AND DETERMINE THE LIABILITY OF THE TAXPAYER TO PAY IT." 
UNITED STATES V. ANDERSON, 269 U.S. 422, 441.  IT HAS SAID ALSO THAT
ACCRUAL IMPORTS "THAT IT IS THE RIGHT TO RECEIVE AND NOT THE ACTUAL
RECEIPT THAT DETERMINES THE INCLUSION OF THE AMOUNT IN GROSS INCOME." 
SPRING CITY CO. V. COMMISSIONER, 292 U.S. 182, 184.  THE DECLARATION OF
THE DIVIDENDS HERE IN QUESTION FIXES THEIR AMOUNT BUT DOES NOT
DETERMINE THE DISTRIBUTEE.  HE CANNOT BE KNOWN WITH CERTAINTY UNTIL THE
RECORD DATE.  NOR DOES THE STOCKHOLDER HAVE THE RIGHT TO RECEIVE
PAYMENT UPON THE DECLARATION.  THE WORDS OF THE CORPORATE RESOLUTION
WHICH ARRANGES FOR THE PAYMENT FROM THE STOCK RECORD OF A CERTAIN DAY
DETERMINE THE EARLIEST TIME FOR POSSIBLE RECEIPT. 

UNDER THE INCOME TAX ACTS NO STOCKHOLDER HAS A SEPARATE AND DIVISIBLE
TAXABLE INTEREST IN THE ASSETS OF A CORPORATION EVEN THOUGH THOSE
ASSETS HAVE BEEN INCREASED BY EARNINGS.  EARNINGS, BEFORE DECLARATION
OF DIVIDENDS, WHILE INCREASING THE VALUE OF HIS STOCK, HAVE NEVER BEEN
TREATED AS AN EVENT TO MARK TAXABLE INCOME TO THE STOCKHOLDER.  MERE
DECLARATION OF A DIVIDEND DOES NOT ALTER THE STOCKHOLDER'S INTEREST IN
THE CORPORATE ASSETS.  IF NO OTHER FACTORS WERE INVOLVED IN VALUE
EXCEPT EARNINGS AND DIVIDENDS, THE VALUE OF THE STOCK WOULD ADVANCE
PARI PASSU WITH EARNINGS AND THE DECLARATION OF A DIVIDEND WITH A
SUBSEQUENT RECORD DATE FOR PAYMENT WOULD NOT AFFECT THE STOCK'S VALUE. 
UNITED STATES V. PHELLIS, 257 U.S. 156, 171.  SEE SCHABACKER, STOCK
MARKET, 353.  THE STOCKHOLDER CAN ACQUIRE NO INTEREST IN A DIVIDEND,
AMOUNTING TO AN ACCRUAL UNDER SEC. 42, BEFORE THE AMOUNT OF THE
DIVIDEND AND THE DISTRIBUTEE IS DETERMINED. 

IN APPLYING TO THE PRESENT DIVIDENDS OUR DESCRIPTION OF ACCRUALS
UNDER SEC. 42 AS "ASSETS OF DECEDENTS, EARNED DURING THEIR LIFE AND
UNREPORTED AS INCOME, WHICH ON A CASH RETURN, WOULD APPEAR IN THE
ESTATE RETURNS,"  FN7  THE COURT OF APPEALS MAY HAVE TREATED THE WORDS
"EARNED DURING" THE DECEDENT'S LIFE AS THOUGH THEY INCLUDED, PRIOR TO A
DECLARATION OF DIVIDENDS, THE PROPORTIONATE PART OF CORPORATE EARNINGS
ATTRIBUTABLE TO DECEDENT'S STOCK.  IF SO, IT IS A MORE EXTENDED MEANING
THAN WAS INTENDED, SINCE STOCK DOES NOT EARN AN IDENTIFIABLE SEPARATE
TAXABLE SHARE OF CORPORATE PROFITS FOR ITS OWNER BEFORE THE CORPORATION
MAKES THOSE PROFITS AVAILABLE TO THE STOCKHOLDER.  IT IS NOT THE
EARNINGS OF A CORPORATION BUT THE SEPARATION OF THOSE EARNINGS BY A
COMPLETED DIVIDEND WHICH ASSIGNS A PART OF THOSE EARNINGS TO A
STOCKHOLDER.  THE PRICE A STOCKHOLDER WOULD RECEIVE ON A STOCK SALE
AFTER DECLARATION AND BEFORE THE RECORD DATE WOULD REFLECT CORPORATE
EARNINGS BUT WOULD NOT REFLECT THE DECLARATION OR NON-DECLARATION OF A
DIVIDEND.  AS THE SAME VALUE WOULD BE IN THE STOCK WITH OR WITHOUT THE
DECLARATION, THE PRICE WOULD BE THE SAME.  ONLY AN EX-DIVIDEND SALE
WOULD AFFECT PRICE. 

FOR THE EARNINGS OF A CORPORATION TO PASS INTO THE EARNINGS OF ITS
STOCKHOLDER, SO AS TO BE SUBJECT TO ACCRUAL TO THE STOCKHOLDER UNDER
SEC. 42, SOMETHING MORE THAN A DECLARATION OF DIVIDENDS WITH A
SUBSEQUENT RECORD DATE TO IDENTIFY THE DISTRIBUTEE IS REQUIRED.  SUCH A
DECLARATION LEAVES THE IDENTITY OF THE RECIPIENT AT LARGE.  SUCH
UNCERTAINTY DESTROYS ANY CONCEPTION OF ACCRUED AS INVOLVING A RIGHT TO
RECEIVE OR AN OBLIGATION TO PAY, ELEMENTS WHICH WE THINK ARE ESSENTIAL
FOR ACCRUALS UNDER OUR DECISIONS.  FN8  REVERSED. 

FN1  52 STAT. 447, 473, SEC. 42: 

"THE AMOUNT OF ALL ITEMS OF GROSS INCOME SHALL BE INCLUDED IN THE
GROSS INCOME FOR THE TAXABLE YEAR IN WHICH RECEIVED BY THE TAXPAYER,
UNLESS, UNDER METHODS OF ACCOUNTING PERMITTED UNDER SECTION 41, ANY
SUCH AMOUNTS ARE TO BE PROPERLY ACCOUNTED FOR AS OF A DIFFERENT
PERIOD.  IN THE CASE OF THE DEATH OF A TAXPAYER THERE SHALL BE INCLUDED
IN COMPUTING NET INCOME FOR THE TAXABLE PERIOD IN WHICH FALLS THE DATE
OF HIS DEATH, AMOUNTS ACCRUED UP TO THE DATE OF HIS DEATH IF NOT
OTHERWISE PROPERLY INCLUDIBLE IN RESPECT OF SUCH PERIOD OR A PRIOR
PERIOD." 

FN2  323 U.S. 702.  JUDICIAL CODE, SEC. 240(A), AS AMENDED. 

FN3 THE GOVERNMENT CALLS ATTENTION TO THE CONFLICT IN STATE DECISIONS
AS TO THE EVENT WHICH VESTS TITLE ACCORDING TO STATE LAW TO A CORPORATE
DIVIDEND.  SOME SPECIFY THE DECLARATION AND SOME COMPLIANCE WITH THE
REQUIREMENT OF BEING A STOCKHOLDER OF RECORD ON A SUBSEQUENT DATE. 

DECLARATION DATE:  FORD V. SNOOK, 205 APP. DIV. 194, 196, 199 N.Y.S.
630, AFF'D 240 N.Y. 624, 148 N.E. 732; BEATTIE V. GEDNEY, 99 N.J. EQ.
207, 132 A. 652; WESTERN SECURITIES CO. V. SILVER KING MINING CO., 57
UTAH 88, 113, 192 P. 664; 27 GEORGETOWN L.J. 74; 38 HARV. L. REV. 245. 

RECORD DATE; SMITH V. TAECKER, 133 CAL. APP. 351, 24 P.2D 182;
RICHTER & CO. V. LIGHT, 97 CONN. 364, 116 A. 600; FORD V. FORD
MANUFACTURING CO., 222 ILL. APP. 76, 84; NUTTER V. ANDREWS, 246 MASS.
224, 142 N.E. 67. 

ACCRUAL UNDER SEC. 42, HOWEVER, IS NOT DEPENDENT UPON THESE VARYING
CONCEPTS OF WHEN DIVIDENDS VEST.  DESPITE POSSIBLE DIFFERENCE BETWEEN
STATE AND FEDERAL INCOME TAXATION OF DIVIDEND ITEMS, THE PRESUMED
CONGRESSIONAL PURPOSE TO HAVE THE NATIONAL REVENUE ACTS UNIFORMLY
ADMINISTERED LEADS TO A FEDERAL INTERPRETATION OF ACCRUALS UNDER SEC.
42. 

SUCH INCONSISTENCY WOULD NOT OCCUR IF THE FEDERAL ACCRUAL DATE UNDER
SEC. 42 IS HELD EVENTUALLY TO BE THE SAME FOR TAXPAYERS ON THE ACCRUED
AND CASH BASIS.  CF. AVERY V. COMMISSIONER, 292 U.S. 210; TAR PRODUCTS
CORP. V. COMMISSIONER, 130 F.2D 866. 

FN4  RESPONDENT ARGUES FOR THE JUDGMENT BELOW ON THE GROUND THAT THE
DIVIDENDS COULD NOT PROPERLY BE TREATED AS INCOME OF THE ESTATE WHEN
RECEIVED, SINCE THE RECEIPT OF THE DIVIDENDS IN CASH BY THE ESTATE WAS
MERELY A CONVERSION INTO MONEY OF ONE OF THE ASSETS OF THE ESTATE,
CITING VANDERBILT V. COMMISSIONER, 11 B.T.A. 291; NICHOLS V. UNITED
STATES, 64 CT. CLS. 241; 80 TREAS. REG., ART. 13.  THE TRUTH OR ERROR
OF THIS POSITION DEPENDS UPON WHETHER THOSE DIVIDENDS ARE INCOME, BY
VIRTUE OF THE ACCRUAL PROVISION OF SEC. 42, TO THE DECEDENT.  IF THEY
ARE INCOME TO THE DECEDENT, THEY CANNOT BE INCOME ALSO TO THE ESTATE. 
IF THEY ARE NOT INCOME TO THE DECEDENT, THEY ARE INCOME TO THE ESTATE. 
THE VANDERBILT AND NICHOLS CASES WERE APPARENTLY DECIDED ON THE THEORY
THAT THE ITEMS IN CONTROVERSY CONSTITUTED INCOME TO THE DECEDENT AND
ASSETS OF THE ESTATE FOR ESTATE TAX PURPOSES AND THEREFORE COULD NOT
LATER BE INCOME TO THE ESTATE.  THE REGULATION DOES NOT PURPORT TO
DIRECT THE RETURN AS CORPUS OF THE ESTATE OF DIVIDENDS DECLARED BUT
WITH A RECORD DATE SUBSEQUENT TO THE STOCKHOLDER'S DEATH.  NEITHER DO
THE PRESENT REGULATIONS.  105 TREAS. REG., SEC. 81.13; CF. UNITED
STATES V. PHELLIS, 257 U.S. 156, 171. 

CONGRESS HAS MODIFIED SEC. 42 BY AN AMENDMENT WHICH IS INAPPLICABLE
TO THIS CASE.  REVENUE ACT OF 1942, SEC. 134, 56 STAT. 798, 830; H.
REP. NO. 2333, 77TH CONG., 2D SESS., SEC. 125, P. 83; S. REP. 1631,
77TH CONG., 2D SESS., SEC. 135, P. 100. 

FN5  A REFERENCE TO DIVIDENDS APPEARS IN THE LEGISLATIVE HISTORY BUT
CASTS NO LIGHT ON THE PROBLEM OF THE EVENT WHICH ACCRUES A CORPORATE
DIVIDEND.  SEE H.R. 7835, 73D CONG., 2D SESS., PRINTED WITH SENATE
AMENDMENTS, MARCH 28(CALENDAR DAY, APRIL 13), 1934; I.R.B., C.B. 1939
1(PART 2), P. 629, AMENDMENT 27; SEC. 43, REVENUE ACT OF 1934, 48 STAT.
694; SEC. 43, REVENUE ACT OF 1938, 52 STAT. 473. 

FN6  THEREFORE THE CONSTRUCTION OF ACCRUED ACCORDING TO THE
TAXPAYER'S METHOD OF ACCOUNTING, WHICH IS DIRECTED IN SEC. 48(C), 52
STAT. 476, IS NOT OF USE.  HELVERING V. ENRIGHT, 312 U.S. 636, 644. 
AVERY V. COMMISSIONER, 292 U.S. 210, HOLDS THAT DIVIDENDS OF A LIVING
TAXPAYER ON THE CASH BASIS WOULD NOT BECOME HIS INCOME ON MERE
DECLARATION BUT ONLY WHEN "RECEIVED," THAT IS, UNQUALIFIEDLY MADE
SUBJECT TO THE STOCKHOLDER'S DEMAND AS BY CHECK.  "RECEIVED" IN THE
AS INCOME OF SUMS ACTUALLY OR CONSTRUCTIVELY COLLECTED, INCLUDING
DIVIDENDS, AS IT IS IN THE SECTION OF THE STATUTE HERE INVOLVED.  THIS
RULE HAS BEEN CONTINUOUSLY APPLIED.    SEE MASON V. ROUTZAHN, 275 U.S.
175, 178; 65 TREAS. REG., ART. 1541; 101 TREAS. REG., ART. 42-3; 111
TREAS. REG., SEC. 29.42-3; 53 HARV. L. REV. 853; 2 MERTENS, FEDERAL
INCOME TAXATION, 17. 

SEE TAR PRODUCTS CORP. V. COMMISSIONER, 130 F.2D 866, FOR AN INSTANCE
OF THE APPLICATION OF THIS RULE TO A TAXPAYER ON THE ACCRUAL BASIS. 
COMPARE 94 TREAS. REG., ART. 115-1 AND 22(A)(1) FOR APPRAISAL OF
POSITION OF THOSE REGULATIONS AS TO DATE WHEN DIVIDENDS ARE RECEIVED BY
A TAXPAYER.  AMERICAN LIGHT & TRACTION CO. V. COMMISSIONER, 3 T.C.
1048. 

FN7  312 U.S. AT 644-45; 144 F.2D AT 758. 

FN8  THIS ACCORDS WITH THE ORIGINAL HOLDING OF THE BOARD OF TAX
APPEALS ON THIS QUESTION IN ESTATE OF MCGLUE, 41 B.T.A. 1186, 1193. 
AFTER THAT CASE WAS REVERSED ON THE LAW OF NEW YORK, HELVERING V.
MCGLUE'S ESTATE, 119 F.2D 167, THE BOARD FOLLOWED THE CIRCUIT COURT
DECISION.  ESTATE OF LEDYARD, 44 B.T.A. 1056, 1065.  RECENTLY THE TAX
COURT HAS HELD THAT A TAXPAYER ON THE ACCRUAL BASIS SHOULD ACCOUNT FOR
A DIVIDEND WHEN RECEIVED.  AMERICAN LIGHT & TRACTION CO. V.
COMMISSIONER, 3 T.C. 1048. 
..END :
























MALINSKI V. NEW YORK, 324 U.S. 401 


NO. 367.  ARGUED DECEMBER 4, 5, 1944.  - DECIDED MARCH 26, 1945.  - 292
N.Y. 360, 55 N.E.2D 353, AFFIRMED IN PART-REVERSED IN PART. 


1.  UPON REVIEW OF A STATE COURT JUDGMENT AFFIRMING CONVICTIONS OF
CODEFENDANTS MALINSKI AND RUDISH ON A CHARGE OF MURDER, DENIAL OF
RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BEING
CLAIMED, THE JUDGMENT AGAINST MALINSKI IS REVERSED AND THAT AGAINST
RUDISH IS AFFIRMED.  PP. 402, 412. 

2.  THE CASE AGAINST THE CO-DEFENDANT RUDISH, BOTH AS TRIED AND AS
SUSTAINED ON APPEAL, WAS NOT DEPENDENT ON A SUBSEQUENT CONFESSION OF
MALINSKI (THOUGH ASSUMED TO HAVE BEEN COERCED); ON THE RECORD, THE
QUESTIONS RAISED INVOLVE MATTERS OF STATE PROCEDURE BEYOND THE PROVINCE
OF THIS COURT TO REVIEW; AND THE JUDGMENT AGAINST RUDISH IS THEREFORE
AFFIRMED.  ANDERSON V. UNITED STATES, 318 U.S. 350, AND ASHCRAFT V.
TENNESSEE, 322 U.S. 143, DISTINGUISHED.  PP. 410, 412. 

OPINION OF DOUGLAS, J., IN WHICH BLACK, MURPHY AND RUTLEDGE, JJ.,
JOIN: 

3.  THE QUESTION WHETHER THERE HAS BEEN A VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY THE INTRODUCTION OF AN
INVOLUNTARY CONFESSION IS ONE UPON WHICH THIS COURT MUST MAKE AN
INDEPENDENT DETERMINATION ON THE UNDISPUTED EVIDENCE.  P. 404. 

4.  IF ALL THE ATTENDANT CIRCUMSTANCES INDICATE THAT THE CONFESSION
WAS COERCED OR COMPELLED, IT MAY NOT BE USED TO CONVICT A DEFENDANT. 
P. 404. 

5.  A CONVICTION OBTAINED BY USE OF A COERCED CONFESSION WILL BE SET
ASIDE EVEN THOUGH THE EVIDENCE APART FROM THE CONFESSION MIGHT HAVE
BEEN SUFFICIENT TO SUSTAIN THE VERDICT.  P. 404. 

6.  THE EVIDENCE OF THE CIRCUMSTANCES IN WHICH MALINSKI MADE THE
FIRST OF SEVERAL CONFESSIONS, TOGETHER WITH THE COMMENTS OF THE
PROSECUTOR IN HIS SUMMATION TO THE JURY, SHOW THAT THAT CONFESSION WAS
COERCED; AND, UPON THE RECORD, THE CASE MUST BE CONSIDERED AS ONE IN
WHICH A COERCED CONFESSION WAS USED TO OBTAIN A CONVICTION.  P. 406. 

7.  THE JUDGMENT AGAINST MALINSKI, RESTING IN PART ON A COERCED
CONFESSION, MUST BE REVERSED.  A MAJORITY OF THE COURT DO NOT REACH THE
QUESTION WHETHER THE SUBSEQUENT CONFESSIONS WERE FREE FROM THE
INFIRMITIES OF THE FIRST.  P. 410. 

MALINSKI ET AL. V. NEW YORK. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

CERTIORARI, 323 U.S. 694, TO REVIEW THE AFFIRMANCE OF CONVICTIONS OF
MURDER. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

MALINSKI AND RUDISH WERE CONVICTED ALONG WITH ONE INDOVINO OF THE
MURDER OF LEON FOX, A POLICE OFFICER WHO, LATE AT NIGHT, WAS ESCORTING
A MANAGER OF A THEATRE TO A BANK DEPOSITORY.  THE DETAILS WILL BE FOUND
IN 292 N.Y. 360.  THERE WERE NO EYE WITNESSES TO THE CRIME WHO COULD
IDENTIFY THE ROBBERS.  MALINSKI WAS IMPLICATED BY VARIOUS WITNESSES -
BY SPIELFOGEL, AN OLD FRIEND AND A CRIMINAL SERVING A SENTENCE OF
THIRTY TO SIXTY YEARS IN SING SING; BY MALINSKI'S GIRL FRIEND; BY
MALINSKI'S BROTHER-IN-LAW.  EACH TESTIFIED THAT MALINSKI CONFESSED THE
CRIME TO HIM OR HER.  THE CONFESSIONS TO THE GIRL FRIEND AND TO THE
BROTHER-IN-LAW WERE MADE A FEW HOURS AFTER THE CRIME AND WERE MERELY
THAT MALINSKI HAD SHOT A COP; BUT THE CONFESSION TO SPIELFOGEL
DISCLOSED IN DETAIL THE PLANNING AND EXECUTION OF THE CRIME.  MALINSKI
DENIED MAKING THESE CONFESSIONS.  YET AS THE NEW YORK COURT OF APPEALS
POINTED OUT (292 N.Y. P. 370) THOSE CONFESSIONS AND OTHER EVIDENCE OF
THE STATE WERE SUFFICIENT, IF BELIEVED, TO SUPPORT THE CONVICTION,
WHOLLY APART FROM ANOTHER CONFESSION AROUND WHICH THE PRESENT
CONTROVERSY TURNS.  BUT THE CIRCUMSTANCES UNDER WHICH THE LATTER
CONFESSION WAS OBTAINED RAISED THE SUBSTANTIAL FEDERAL QUESTION WHICH
PROMPTED US TO GRANT THE PETITION FOR A WRIT OF CERTIORARI. 

                                   I 

MALINSKI WAS ARRESTED WHILE ON HIS WAY TO WORK ON THE MORNING OF
FRIDAY, OCTOBER 23, 1942.  THE POLICE DID NOT THEN ARRAIGN HIM BUT TOOK
HIM TO A ROOM IN THE BOSSERT HOTEL IN BROOKLYN WHERE HE ARRIVED ABOUT 8
A.M.  HE WAS IMMEDIATELY STRIPPED AND KEPT NAKED UNTIL ABOUT 11 A.M.
AT THAT TIME HE WAS ALLOWED TO PUT ON HIS SHOES, SOCKS AND UNDERWEAR
AND WAS GIVEN A BLANKET IN WHICH TO WRAP HIMSELF.  HE REMAINED THAT WAY
UNTIL ABOUT 6 P.M.  MALINSKI CLAIMS HE WAS BEATEN BY THE POLICE DURING
THAT PERIOD.  THE POLICE DENIED THIS.  THERE WAS NO VISIBLE SIGN OF ANY
BEATING, SUCH AS BRUISES OR SCARS; AND MALINSKI MADE NO COMPLAINT TO
THE JUDGE ON ARRAIGNMENT NOR TO THE JAIL AUTHORITIES WHERE HE WAS LATER
HELD.  SOMETIME DURING FRIDAY MORNING SPIELFOGEL WAS BROUGHT TO THE
HOTEL.  HE AND MALINSKI WERE PUT ALONE TOGETHER IN A ROOM SOMETIME THAT
AFTERNOON.  SHORTLY AFTER THEIR CONFERENCE - APPARENTLY AROUND 5:30
P.M. OR 6:00 P.M. - MALINSKI CONFESSED TO THE POLICE.  AFTER IT WAS
MADE MALINSKI WAS ALLOWED TO DRESS.  MALINSKI WAS KEPT AT THE HOTEL
THAT NIGHT AND THE NEXT THREE DAYS.  THE RECORD DOES NOT SHOW EXACTLY
HOW LONG AND FREQUENT THE QUESTIONING WAS AFTER THE FIRST CONFESSION. 
BUT IT IS CLEAR THAT MALINSKI WAS QUESTIONED IN THE EARLY HOURS OF
SATURDAY, THE 24TH, AND AT OTHER TIMES DURING THAT DAY.  HE WAS FURTHER
QUESTIONED ON SUNDAY, THE 25TH, AND TAKEN WITH SPIELFOGEL FROM THE
HOTEL TO THE SCENE OF THE CRIME WHERE HE IDENTIFIED SEVERAL PLACES
WHICH HAD A RELATIONSHIP TO THE COMMISSION OF THE CRIME AND WHERE HE
POINTED OUT HOW THE CRIME WAS EXECUTED.  ON MONDAY, THE 26TH, HE WAS
TAKEN FROM THE HOTEL TO THE POLICE GARAGE WHERE HE IDENTIFIED THE
AUTOMOBILE USED IN THE ROBBERY.  AT ABOUT 5:00 P.M. ON MONDAY HE WAS
TAKEN TO A POLICE STATION AND QUESTIONED.  ON TUESDAY MORNING, OCTOBER
27TH, ABOUT 2 A.M. HE MADE A CONFESSION AT THE POLICE STATION.  THAT
CONFESSION WAS INTRODUCED AT THE TRIAL.  SHORTLY THEREAFTER - ABOUT
4:00 A.M. - HE WAS BOOKED AND PUT IN A CELL AND SOON ARRAIGNED. 

THE TRIAL COURT HELD A PRELIMINARY HEARING ON THE VOLUNTARY CHARACTER
OF THE CONFESSION OF OCTOBER 27TH BEFORE ALLOWING IT TO BE INTRODUCED
IN EVIDENCE.  THERE IS A QUESTION IN THE CASE WHETHER THE CONFESSION OF
OCTOBER 23RD AS WELL AS THAT OF OCTOBER 27TH WAS SUBMITTED TO THE JURY,
A QUESTION TO WHICH WE WILL RETURN.  IT IS SUFFICIENT HERE TO NOTE THAT
THE TRIAL COURT CHARGED THE JURY THAT A CONFESSION SHOULD NOT BE
CONSIDERED BY THEM UNLESS THEY FOUND BEYOND A REASONABLE DOUBT THAT IT
WAS VOLUNTARY.  AND THEY WERE TOLD THAT ALTHOUGH THE DELAY IN
ARRAIGNMENT WAS NOT CONCLUSIVE, THEY MIGHT CONSIDER IT IN PASSING ON
THE QUESTION OF VOLUNTARINESS.  THE COURT OF APPEALS SUSTAINED THE
JUDGMENT OF CONVICTION BY A DIVIDED VOTE.  FN1  BUT THE QUESTION
WHETHER THERE HAS BEEN A VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT BY THE INTRODUCTION OF AN INVOLUNTARY CONFESSION
IS ONE ON WHICH WE MUST MAKE AN INDEPENDENT DETERMINATION ON THE
UNDISPUTED FACTS.  CHAMBERS V. FLORIDA, 309 U.S. 227; LISENBA V.
CALIFORNIA, 314 U.S. 219; ASHCRAFT V. TENNESSEE, 322 U.S. 143. 

IF ALL THE ATTENDANT CIRCUMSTANCES INDICATE THAT THE CONFESSION WAS
COERCED OR COMPELLED, IT MAY NOT BE USED TO CONVICT A DEFENDANT. 
ASHCRAFT V. TENNESSEE, SUPRA, P. 154.  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.  LYONS V. OKLAHOMA, 322 U.S. 596, 597. 

IF THE EVIDENCE ALONE IS CONSIDERED, THERE IS SERIOUS DOUBT WHETHER
THE CONFESSION MADE ON THE LATE AFTERNOON OF FRIDAY, OCTOBER 23RD (THE
FIRST DAY OF MALINSKI'S DETENTION) WAS ADMISSIBLE UNDER THE RULE OF
CHAMBERS V. FLORIDA, LISENBA V. CALIFORNIA, AND ASHCRAFT V. TENNESSEE,
SUPRA. IF THE CONFESSION HAD BEEN THE PRODUCT OF PERSISTENT QUESTIONING
WHILE MALINSKI STOOD STRIPPED AND NAKED, WE WOULD HAVE A CLEAR CASE. 
BUT IT WAS NOT.  MALINSKI WAS STRIPPED WHEN HE ARRIVED AT THE HOTEL SO
THAT HE MIGHT BE EXAMINED FOR BULLET WOUNDS.  FN2  HE REMAINED IN THAT
CONDITION SEVERAL HOURS - MUCH LONGER THAN ANY SUCH PHYSICAL
EXAMINATION COULD POSSIBLY JUSTIFY.  BUT IT DOES NOT APPEAR THAT HE WAS
SUBJECTED TO MORE THAN OCCASIONAL QUESTIONING DURING THAT PERIOD.  NO
CONFESSION WAS OBTAINED FROM HIM AT THAT TIME.  HE SAID HE WAS BEATEN;
BUT THAT WAS DISPUTED.  AND THE ASSERTION HAS SUCH A DUBIOUS CLAIM TO
VERACITY THAT WE LAY IT ASIDE.  IN ANY EVENT, HE SOON HAD HIS SHOES,
SOCKS, AND UNDERWEAR BACK ON AND A BLANKET IN WHICH TO WRAP HIMSELF. 
HE COMPLAINED OF THAT TREATMENT IN HIS TESTIMONY.  THE POLICE JUSTIFIED
IT WITH THE DUBIOUS EXPLANATION THAT IT WAS TO MAKE CERTAIN THAT
MALINSKI DID NOT ESCAPE.  YET THE RECORD DOES NOT SHOW ANY PERSISTENT
AND INCESSANT - LET ALONE GRUELLING - QUESTIONING BY THE POLICE WHILE
MALINSKI WAS ONLY PARTIALLY CLOTHED.  THERE ARE MANY GAPS IN THE
CHRONOLOGICAL NARRATIVE OF WHAT TRANSPIRED THAT DAY.  BUT SEVERAL
CIRCUMSTANCES STAND OUT.  MALINSKI WAS HELD INCOMMUNICADO; HE WAS NOT
ALLOWED TO SEE A LAWYER, THOUGH HE ASKED FOR ONE, AND HE WAS NOT
ALLOWED TO SEE FRIENDS, WITH ONE EXCEPTION.  FN3 THAT EXCEPTION WAS
SPIELFOGEL.  FN4  AS WE HAVE NOTED, HE AND MALINSKI HAD A PRIVATE
CONFERENCE THAT AFTERNOON.  MALINSKI WAS TOLD THAT SPIELFOGEL WAS
THERE.  MALINSKI ASKED TO SEE HIM.  SPIELFOGEL'S VERSION OF WHAT
TRANSPIRED VARIES FROM MALINSKI'S.  THE FORMER SAYS THAT MALINSKI TOLD
HIM THE POLICE KNEW SO MUCH THAT MALINSKI FIGURED HE "MIGHT AS WELL GO
OUT THERE AND TELL THEM THE REST."  MALINSKI SAID THAT HE ASKED
SPIELFOGEL, "WHAT ARE YOU DOING WITH ME?"; AND THAT SPIELFOGEL REPLIED,
"DON'T LET THEM HIT YOU.  YOU KNOW YOU DIDN'T DO IT.  GO OUT AND SAY I
TOLD YOU TO TELL THE TRUTH."  SHORTLY THEREAFTER MALINSKI MADE HIS
CONFESSION OF OCTOBER 23RD.  IF THAT EVIDENCE ALONE IS NOT SUFFICIENT
TO SHOW THAT THAT CONFESSION WAS COERCED, THE COMMENTS OF THE
PROSECUTOR PLACE IT BEYOND DOUBT.  FOR IN HIS SUMMATION TO THE JURY HE
MADE CERTAIN STATEMENTS WHICH THE COURT OF APPEALS SAID WERE
"INDEFENSIBLE" (292 N.Y. P. 373) AND WHICH WE THINK ARE SUFFICIENT TO
FILL IN ANY GAPS ON THE RECORD BEFORE US AND TO ESTABLISH THAT THIS
CONFESSION WAS NOT MADE VOLUNTARILY.  HE SAID THAT MALINSKI "WAS NOT
HARD TO BREAK"; THAT "HE DID NOT CARE WHAT HE DID.  HE KNEW THE COPS
WERE GOING TO BREAK HIM DOWN."  AND HE ADDED: 

"WHY THIS TALK ABOUT BEING UNDRESSED?  OF COURSE, THEY HAD A RIGHT TO
UNDRESS HIM TO LOOK FOR BULLET SCARS, AND KEEP THE CLOTHES OFF HIM. 
THAT WAS QUITE PROPER POLICE PROCEDURE.  THAT IS SOME MORE PSYCHOLOGY -
LET HIM SIT AROUND WITH A BLANKET ON HIM, HUMILIATE HIM THERE FOR A
WHILE; LET HIM SIT IN THE CORNER, LET HIM THINK HE IS GOING TO GET A
SHELLACKING." 

IF WE TAKE THE PROSECUTOR AT HIS WORD, THE CONFESSION OF OCTOBER 23RD
WAS THE PRODUCT OF FEAR - ONE ON WHICH WE COULD NOT PERMIT A PERSON TO
STAND CONVICTED FOR A CRIME. 

BUT IT IS SAID THAT THIS COERCED CONFESSION WAS NOT INTRODUCED IN
EVIDENCE, THAT IT WAS SUBMITTED TO THE JURY ONLY INSOFAR AS IT THREW
LIGHT ON THE VOLUNTARY CHARACTER OF THE SUBSEQUENT CONFESSIONS, AND
THAT UNDER THE RULE OF LYONS V. OKLAHOMA, SUPRA, P. 601, THE ADEQUACY
OF THAT INSTRUCTION TO THE JURY IS SOLELY FOR THE STATE COURTS TO
DETERMINE.  WE DO NOT THINK, HOWEVER, THAT LYONS V. OKLAHOMA, SUPRA,
FITS THIS CASE. 

THE CONFESSION OF OCTOBER 23RD WAS ORAL.  ITS DETAILS WERE NOT PUT IN
EVIDENCE.  BUT SPIELFOGEL, A WITNESS FOR THE PROSECUTION, ADVERTED TO
IT IN HIS TESTIMONY, SAYING THAT MALINSKI TOLD "EVERYTHING" AT THAT
TIME.  A POLICE OFFICER TESTIFIED ON BEHALF OF THE PROSECUTION TO THE
SAME EFFECT.  THE PROSECUTOR REFERRED TO IT IN HIS SUMMATION IN
LANGUAGE WHICH WE HAVE ALREADY QUOTED.  HE ADDED THAT "SIX O'CLOCK IN
THE EVENING AFTER HE (MALINSKI) WAS PICKED UP, HE TOLD THE WHOLE
THING."  WHEN THE CONFESSION OF OCTOBER 27TH (WHICH WAS A DETAILED
CONFESSION TAKEN DOWN BY A STENOGRAPHER) WAS OFFERED IN EVIDENCE, A
PRELIMINARY HEARING WAS HAD.  THAT HEARING COVERED THE VOLUNTARY
CHARACTER OF THE OCTOBER 23RD CONFESSION AS WELL AS THE OCTOBER 27TH
CONFESSION.  THE TRIAL COURT IN ITS CHARGE TO THE JURY REVIEWED THE
EVENTS LEADING UP TO THE CONFESSION OF OCTOBER 23RD - THE PROSECUTOR'S
VERSION, MALINSKI'S VERSION.  IT THEN REFERRED TO THE DELAY IN
ARRAIGNING MALINSKI, STATING THAT THE POLICE CLAIMED THEY WERE WILLING
TO ARRAIGN MALINSKI ON THE DAY OF HIS ARREST BUT THAT MALINSKI
PREFERRED TO STAY AT THE HOTEL WITH SPIELFOGEL.  IT THEN CHARGED: 

"BE THAT AS IT MAY, I CHARGE YOU THAT IT WAS THE DUTY OF THE POLICE
TO ARRAIGN THE DEFENDANT BEFORE THE NEAREST MAGISTRATE WITHOUT
UNNECESSARY DELAY, AND, FURTHER, THAT IF A POLICE OFFICER FAILED OR
REFUSED TO PERFORM SUCH DUTY, HE IS GUILTY OF A MISDEMEANOR. 

"BUT, GENTLEMEN, YOU WILL BEAR IN MIND THAT THE POLICE DEPARTMENT IS
NOT ON TRIAL IN THIS CASE.  THIS TESTIMONY WAS ADDUCED SOLELY ON THE
QUESTION AS TO WHETHER OR NOT THE ALLEGED CONFESSION LATER MADE WAS THE
RESULT OF THE COERCION, EITHER DIRECT OR IMPLIED, WHICH IS PROHIBITED
BY THE STATUTE, AND WHICH INVALIDATES A CONFESSION IF MADE.  IF YOU
SHOULD FIND THAT THE ARRAIGNMENT OF THE DEFENDANT WAS DELAYED, YOU MAY
CONSIDER THAT ON THE QUESTION OF THE VOLUNTARINESS OF ANY CONFESSION
MADE BY MALINSKY, INCLUDING THE ONE MADE IN THE EARLY HOURS OF OCTOBER
27TH AT THE BATH BEACH STATION HOUSE. 

"HOWEVER, I AM CHARGING YOU THAT THE FAILURE TO ARRAIGN, IN AND OF
ITSELF, IS NOT CONCLUSIVE AGAINST THE PEOPLE, AND DOES NOT IN AND OF
ITSELF, STANDING ALONE, DESTROY THE VALIDITY OF THE CONFESSION.  IS
THAT CLEAR? 

"ON THE QUESTION WHETHER MALINSKI WAS COERCED, YOU MAY CONSIDER THAT
HE MADE NO COMPLAINT TO THE MAGISTRATE WHEN ARRAIGNED AND DID NOT SEEK
THE SERVICES OF THE JAIL PHYSICIAN.  THAT EVIDENCE, IF TRUE, IS NOT,
HOWEVER, CONCLUSIVE AGAINST MALINSKI, BUT MAY BE CONSIDERED BY THE JURY
ON THE ISSUE OF THE VOLUNTARINESS OF THE CONFESSION." 

MALINSKI MADE NO OBJECTIONS TO THESE REFERENCES TO HIS CONFESSION OF
OCTOBER 23RD.  AND WHILE HE ASKED FOR A MISTRIAL BECAUSE OF THE
PROSECUTOR'S COMMENTS, HE MADE ON THIS PHASE OF THE CASE NO REQUESTS TO
CHARGE WHICH WERE REFUSED.  THE COURT OF APPEALS, HOWEVER, DID NOT HOLD
THAT MALINSKI WAS PRECLUDED FROM OBJECTING  FN5  TO THE USE MADE AT THE
TRIAL OF HIS CONFESSION OF OCTOBER 23RD.  IT CONSIDERED HIS OBJECTION
THAT "IT WAS ERROR FOR THE COURT TO SUBMIT TO THE JURY THE CONFESSION
MADE BY MALINSKI ORALLY ON OCTOBER 23RD" AS WELL AS THE OTHER THREE
CONFESSIONS MADE TO THE POLICE.  292 N.Y. P. 370.  AND IT MADE PLAIN,
WHEN IT HELD THAT MALINSKI'S "CONFESSION" SHOULD NOT HAVE BEEN EXCLUDED
AS A MATTER OF LAW, THAT IT MEANT "NOT ONLY THE CONFESSION MADE ORALLY
TO A POLICE OFFICER ON THE FRIDAY NIGHT OF THE ARREST BUT ALSO THE TWO
AUTOMOBILE TRIPS ON SUNDAY AND MONDAY, ONE TO THE POLICE GARAGE TO
PERMIT MALINSKI TO IDENTIFY THE AUTOMOBILE USED IN THE CRIME AND THE
OTHER TO CONEY ISLAND TO REVISIT A RESTAURANT AND THE SCENE OF THE
CRIME, AND THE CONFESSION TO THE DISTRICT ATTORNEY WHICH WAS TAKEN
STENOGRAPHICALLY IN THE EARLY MORNING OF TUESDAY, OCTOBER 27TH."  292
N.Y. PP. 373-374.  ITS RULING WAS THAT NONE OF THE FOUR CONFESSIONS WAS
INVOLUNTARY AS A MATTER OF LAW.  THUS AS WE READ THE OPINION OF THE
COURT OF APPEALS, IT REVIEWED THE JUDGMENT OF CONVICTION ON THE BASIS
THAT ALL FOUR CONFESSIONS TO THE POLICE HAD BEEN SUBMITTED TO THE
JURY.  WE FIND NO INDICATION THAT IT CONSTRUED THE RECORD TO BE LIKE
THE ONE IN LYONS V. OKLAHOMA, SUPRA, WHERE CONSIDERATION OF THE FIRST
COERCED CONFESSION WAS STRICTLY LIMITED TO THE VOLUNTARY CHARACTER OF
SUBSEQUENT CONFESSIONS.  NOR DO WE THINK THAT THE RECORD BEFORE US CAN
BE FAIRLY CONSTRUED IN THAT MANNER.    THERE WERE REPEATED REFERENCES
AT THE TRIAL TO THE CONFESSION OF OCTOBER 23RD.  THE PROSECUTOR MADE
EMPHATIC REFERENCES TO IT IN HIS SUMMATION.  ON THIS RECORD THE FACT
THAT MALINSKI CONFESSED TO THE CRIME SHORTLY AFTER HE WAS ARRESTED
STANDS OUT IN BOLD RELIEF.  THE USE MADE OF THE CONFESSION COULD HARDLY
HAVE BEEN MORE EFFECTIVE HAD ITS DETAILS BEEN PUT IN EVIDENCE.  IT WAS
NOT INSULATED FROM THE TRIAL.  THE PART OF THE CHARGE TO THE JURY WHICH
WE HAVE QUOTED MAY POSSIBLY HAVE BEEN AN EFFORT IN THAT DIRECTION.  BUT
IT IS MORE SUSCEPTIBLE OF THE INTERPRETATION THAT THE DELAY IN
ARRAIGNMENT, NOT THE FIRST CONFESSION, WAS TO BE CONSIDERED "SOLELY ON
THE QUESTION AS TO WHETHER OR NOT THE ALLEGED CONFESSION LATER MADE WAS
THE RESULT OF THE COERCION."  THAT SEEMS TO HAVE BEEN THE
INTERPRETATION GIVEN THE CHARGE BY THE COURT OF APPEALS.  292 N.Y. P.
374.  NO MORE EXPLICIT CHARGE WAS GIVEN.  THE JURY AT NO TIME WAS
ADMONISHED THAT IT COULD NOT CONVICT ON THE BASIS OF THE FIRST
CONFESSION NOR CONSIDER IT AS EVIDENCE AGAINST MALINSKI.  WE MUST
CONSIDER THE CASE, THEREFORE, AS ONE IN WHICH A COERCED CONFESSION WAS
EMPLOYED TO OBTAIN A CONVICTION.  COERCED CONFESSIONS WOULD FIND A WAY
OF CORRUPTING THE TRIAL IF WE SANCTIONED THE USE MADE OF THE OCTOBER
23RD CONFESSION IN THIS CASE.  CONSTITUTIONAL RIGHTS MAY SUFFER AS MUCH
FROM SUBTLE INTRUSIONS AS FROM DIRECT DISREGARD. 

IT IS THUS APPARENT THAT THE JUDGMENT BEFORE US RESTS IN PART ON A
CONFESSION OBTAINED AS A RESULT OF COERCION.  ACCORDINGLY A MAJORITY OF
THE COURT DO NOT COME TO THE QUESTION WHETHER THE SUBSEQUENT
CONFESSIONS WERE FREE FROM THE INFIRMITIES OF THE FIRST ONE.  FN6

                                  II 

WE HAVE NOT MENTIONED RUDISH.  HE DID NOT CONFESS TO THE POLICE.  HE
WAS TRIED JOINTLY WITH MALINSKI, HIS COUNSEL ELECTING NOT TO ASK FOR A
SEVERANCE.  WE ARE ASKED TO REVERSE AS TO RUDISH BECAUSE THE CONFESSION
OF OCTOBER 27TH WHICH WAS INTRODUCED IN EVIDENCE AGAINST MALINSKI WAS
PREJUDICIAL TO RUDISH.  IT IS ARGUED THAT THAT COURSE IS INDICATED BY
ANDERSON V. UNITED STATES, 318 U.S. 350.  IN THAT CASE WE REVERSED A
JUDGMENT OF CONVICTION AGAINST ALL THE DEFENDANTS THOUGH THE
CONFESSIONS WHICH HAD BEEN INTRODUCED WERE THE CONFESSIONS OF ONLY SOME
OF THEM.  BUT IN THAT CASE WE WERE REVIEWING A CRIMINAL PROCEEDING IN A
FEDERAL DISTRICT COURT OVER WHICH WE HAVE MORE CONTROL THAN WE DO OVER
CRIMINAL TRIALS IN THE STATE COURTS.  MCNABB V. UNITED STATES, 318 U.S.
332.  MOREOVER, IN THE ANDERSON CASE THE JURY WAS TOLD THAT IN
CONSIDERING THE GUILT OR INNOCENCE OF EACH DEFENDANT THEY COULD
CONSIDER THE WHOLE PROOF MADE AT THE TRIAL.  AND IT APPEARED THAT THE
PROSECUTION LEANED HEAVILY ON THE CONFESSIONS TO ESTABLISH ITS CASE
AGAINST ALL THE DEFENDANTS.  THE FURTHEST WE HAVE GONE IN A COMPARABLE
CASE FROM A STATE COURT IS TO VACATE THE JUDGMENT AGAINST THE CO
DEFENDANT WHO DID NOT CONFESS AND REMAND THE CASE TO THE STATE COURT
FOR FURTHER CONSIDERATION.  THUS IN ASHCRAFT V. TENNESSEE, 322 U.S.
143, 155, WE FOLLOWED THAT PROCEDURE, AT THE SUGGESTION OF THE ATTORNEY
GENERAL OF THE STATE, WHERE THE JUDGMENT AGAINST THE CO-DEFENDANT WHO
DID NOT CONFESS WAS SUSTAINED BY THE STATE COURT ON THE ASSUMPTION THAT
THE CONFESSION WHICH WE HELD TO BE COERCED WAS PROPERLY ADMITTED AND
THAT THE CONVICTION OF THE DEFENDANT WHO DID CONFESS WAS VALID. 

WE DO NOT BELIEVE THAT PROCEDURE IS APPROPRIATE IN THIS CASE EVEN
THOUGH IT BE ASSUMED ARGUENDO THAT THE CONFESSION OF OCTOBER 27TH WAS
INVOLUNTARY.  IT IS TRUE THAT THAT CONFESSION REFERRED BOTH TO RUDISH
AND TO INDOVINO.  BUT BEFORE THAT CONFESSION WAS OFFERED IN EVIDENCE
THE TRIAL COURT WITH THE COMPLETE APPROVAL OF COUNSEL FOR RUDISH WORKED
OUT A PROCEDURE FOR PROTECTING RUDISH AND INDOVINO.  "X" WAS
SUBSTITUTED FOR RUDISH, "Y" FOR INDOVINO.  THE JURY WERE PLAINLY
INSTRUCTED THAT THE CONFESSION WAS ADMITTED AGAINST MALINSKI ALONE AND
THAT THEY WERE NOT TO SPECULATE CONCERNING THE IDENTITY OF "X" OR "Y." 
WHEN IT CAME TO THE CHARGE, THE TRIAL COURT SUBMITTED THE CASE AGAINST
RUDISH SEPARATELY FROM THE ONE AGAINST MALINSKI.  FN7  THE COURT OF
APPEALS IN SUSTAINING THE JUDGMENT AGAINST RUDISH IN NO RESPECT RELIED
ON ANY CONFESSION TO THE POLICE WHICH MALINSKI MADE.  AND WHEN IT
TURNED TO THE COMMENTS OF THE PROSECUTOR, WHICH WE HAVE QUOTED, IT
NOTED THAT THEY CONCERNED MALINSKI, NOT RUDISH.  292 N.Y. P. 373. 

ON THIS RECORD THE QUESTIONS RAISED BY RUDISH INVOLVE MATTERS OF
STATE PROCEDURE BEYOND OUR PROVINCE TO REVIEW.  BARRINGTON V. MISSOURI,
205 U.S. 483.  SINCE THE CASE AGAINST HIM, BOTH AS TRIED AND AS
SUSTAINED ON REVIEW, WAS NOT DEPENDENT ON MALINSKI'S CONFESSION OF
OCTOBER 27TH, WE THINK IT INAPPROPRIATE TO VACATE THE JUDGMENT AS WE
DID IN ASHCRAFT V. TENNESSEE, SUPRA, THOUGH WE ASSUME THAT THAT
CONFESSION WAS COERCED.  WHETHER OUR REVERSAL OF THE JUDGMENT AGAINST
MALINSKI WOULD AS A MATTER OF STATE LAW AFFECT THE JUDGMENT AGAINST
RUDISH IS NOT FOR US TO SAY.  IN EACH CASE OUR MANDATE WILL PROVIDE FOR
A REMAND TO THE COURT OF APPEALS FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. 

THE JUDGMENT AGAINST RUDISH IS AFFIRMED. 

THE JUDGMENT AGAINST MALINSKI IS REVERSED.  IT IS SO ORDERED. 

FN1  THE COURT OF APPEALS DID NOT DIVIDE ON THE ISSUE WHICH IS BEFORE
US.  THE DISSENTING JUDGES THOUGHT (1) THAT SPIELFOGEL WAS AN
ACCOMPLICE AND THAT THE CONVICTION OF RUDISH WAS NOT SUPPORTED BY
CORROBORATIVE EVIDENCE; AND (2) THAT THE INSTRUCTION CONCERNING THE
VOLUNTARY CHARACTER OF THE CONFESSION WAS NOT ADEQUATE. 

FN2  WHILE THE ROBBERS WERE ESCAPING, THE WOUNDED POLICEMAN FIRED
SEVERAL SHOTS, SOME OF WHICH HIT THE CAR IN WHICH THEY MADE THEIR
ESCAPE. 

FN3  THE MATTER WAS DESCRIBED BY THE PROSECUTOR IN A RATHER SHOCKING
MANNER: 

"THEY HOLD MEN FOR SEVERAL DAYS.  ARE YOU SATISFIED WITH THAT?  THEY
ARE NOT GOING TO LET HIM GO HOME, OR LET HIM GET HOLD OF A SMART
MOUTHPIECE TO PREACH ABOUT HIS RIGHTS AND SUE OUT WRITS.  YOU WANT A
DISTRICT ATTORNEY IN THIS COUNTY THAT IS WORTH HIS SALT, NOT A
POWDERPUFF DISTRICT ATTORNEY.  WHEN YOU ARE TRYING A CASE OF MURDER,
ESPECIALLY MURDER OF A POLICE OFFICER, YOU DON'T GO OVER AND GIVE HIM A
PAT ON THE BACK AND SAY, 'DO YOU WANT ANYTHING?  DO YOU WANT TO HAVE
YOUR LAWYER OR YOUR WIFE OR SOMEBODY ELSE?'  IN FACT AFTER THAT THEY
WOULD NOT EVEN LET HIM SEE MR. MATH, AN ASSISTANT IN OUR OFFICE; THEY
WOULD NOT EVEN LET HIM TALK TO A RABBI.  DO YOU THINK MCNALLY, 17 YEARS
IN THE POLICE DEPARTMENT, IS GOING TO LET THIS JERK FROM THE EAST SIDE
TELL HIM HIS BUSINESS?" 

FN4  AS THE COURT OF APPEALS POINTS OUR (292 N.Y. P. 375), SPIELFOGEL
AND MALINSKI HAD AN AGREEMENT THAT IF EITHER WENT TO PRISON THE ONE WHO
WAS FREE WOULD HELP TAKE CARE OF THE OTHER'S FAMILY.  AFTER SPIELFOGEL
WENT TO SING SING, MALINSKI CONTRIBUTED FOR A WHILE TO THE SUPPORT OF
SPIELFOGEL'S WIFE.  WHEN MALINSKI REFUSED TO PAY ANY MORE, SPIELFOGEL
UNBURDENED HIMSELF TO TWO OTHER CONVICTS, YELLIN AND KOVNER, "BUT WITH
NO INTENTION OF ACTING AGAINST MALINSKI FOR, CURIOUSLY ENOUGH,
TESTIMONY IS IN THIS RECORD THAT, AFTER KNOWLEDGE OF WHAT HAD OCCURRED
IN THE SHOOTING OF FOX REACHED THE POLICE DEPARTMENT AND A LIEUTENANT
OF POLICE WAS SENT TO SING SING PRISON TO INTERVIEW SPIELFOGEL, HE
REFUSED TO TALK TO THE POLICE OFFICER.  EVEN AFTER THAT POLICE OFFICER
HAD TOLD HIM ALL THAT SPIELFOGEL MUST HAVE TOLD TO YELLIN AND KOVNER HE
STILL EVINCED NO INTEREST IN HELPING THE POLICE.  IT WAS ONLY LATER
THAT HE CONSENTED TO TALK." 

FN5  NEW YORK HAS THE RULE THAT IN CAPITAL CASES A NEW TRIAL MAY BE
ORDERED IN THE INTERESTS OF JUSTICE THOUGH NO EXCEPTION WAS TAKEN IN
THE TRIAL COURT.  GILBERT'S ANNO.  CRIMINAL CODE & PENAL LAW (1943)
SEC. 528; PEOPLE V. JUNG HING, 212 N.Y. 393, 405, 106 N.E. 105; PEOPLE
V. LYTTON, 257 N.Y. 310, 313, 178 N.E. 290. 

FN6  MR. JUSTICE BLACK, MR. JUSTICE MURPHY, AND MR. JUSTICE RUTLEDGE
JOIN IN PART I OF THIS OPINION. 

FN7  THIS TREATMENT OF THE MATTER SEEMS TO HAVE FOLLOWED THE
PROCEDURE ADOPTED IN NEW YORK IN CASE OF JOINT TRIALS.  SEE PEOPLE V.
SNYDER, 246 N.Y. 491, 497, 159 N.E. 408; PEOPLE V. FISHER, 249 N.Y.
419, 424, 427, 164 N.E. 336. 

MR. JUSTICE FRANKFURTER. 

IT IS ALSO MY VIEW THAT THE JUDGMENT AS TO MALINSKI CALLS FOR
REVERSAL, LEAVING THE DISPOSITION OF RUDISH'S CONVICTION IN THE LIGHT
OF SUCH REVERSAL TO THE NEW YORK COURT OF APPEALS. 

APART FROM PERMITTING CONGRESS TO USE CRIMINAL SANCTIONS AS MEANS FOR
CARRYING INTO EXECUTION POWERS GRANTED TO IT, THE CONSTITUTION LEFT THE
DOMAIN OF CRIMINAL JUSTICE TO THE STATES.  THE CONSTITUTION, INCLUDING
THE BILL OF RIGHTS, PLACED NO RESTRICTION UPON THE POWER OF THE STATES
TO CONSULT SOLELY THEIR OWN NOTIONS OF POLICY IN FORMULATING PENAL
CODES AND IN ADMINISTERING THEM, EXCEPTING ONLY THAT THEY WERE
FORBIDDEN TO PASS ANY "BILL OF ATTAINDER" OR "EX POST FACTO LAW,"
CONSTITUTION OF THE UNITED STATES, ART. I, SEC. 10.  THIS FREEDOM OF
ACTION REMAINED WITH THE STATES UNTIL 1868.  THE FOURTEENTH AMENDMENT
SEVERELY MODIFIED THE SITUATION.  IT DID SO NOT BY CHANGING THE
DISTRIBUTION OF POWER AS BETWEEN THE STATES AND THE CENTRAL
GOVERNMENT.  CRIMINAL JUSTICE WAS NOT WITHDRAWN FROM THE STATES AND
MADE THE BUSINESS OF FEDERAL LAWMAKING.  THE FOURTEENTH AMENDMENT
MERELY RESTRICTED THE FREEDOM THERETOFORE POSSESSED BY THE STATES IN
THE MAKING AND THE ENFORCEMENT OF THEIR CRIMINAL LAWS. 

UNLIKE THE LIMITATIONS OF THE BILL OF RIGHTS UPON THE USE OF CRIMINAL
PENALTIES BY FEDERAL AUTHORITY, THE FOURTEENTH AMENDMENT PLACED NO
SPECIFIC RESTRICTION UPON THE ADMINISTRATION OF THEIR CRIMINAL LAW BY
THE STATES.  CONGRESS IN PROPOSING THE FOURTEENTH AMENDMENT AND THE
STATES IN RATIFYING IT LEFT TO THE STATES THE FREEDOM OF ACTION THEY
HAD BEFORE THAT AMENDMENT EXCEPTING ONLY THAT AFTER 1868 NO STATE COULD
"ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES"
NOR "DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE
PROCESS OF LAW," NOR DENY TO ANY PERSON THE "EQUAL PROTECTION OF THE
LAWS."  THESE ARE ALL PHRASES OF LARGE GENERALITIES.  BUT THEY ARE NOT
GENERALITIES OF UNILLUMINED VAGUENESS; THEY ARE GENERALITIES
CIRCUMSCRIBED BY HISTORY AND APPROPRIATE TO THE LARGENESS OF THE
PROBLEMS OF GOVERNMENT WITH WHICH THEY WERE CONCERNED.  "THE PRIVILEGES
OR IMMUNITIES OF CITIZENS OF THE UNITED STATES" DERIVED FROM THE TWO
ASPECTS OF CITIZENSHIP IN OUR FEDERAL SYSTEM.  THE SAFEGUARDS OF "DUE
PROCESS OF LAW" AND "THE EQUAL PROTECTION OF THE LAWS" SUMMARIZE THE
HISTORY OF FREEDOM OF ENGLISH-SPEAKING PEOPLES RUNNING BACK TO MAGNA
CARTA AND REFLECTED IN THE CONSTITUTIONAL DEVELOPMENT OF OUR PEOPLE. 
THE HISTORY OF AMERICAN FREEDOM IS, IN NO SMALL MEASURE, THE HISTORY OF
PROCEDURE. 

HERE WE ARE CONCERNED WITH THE REQUIREMENT OF "DUE PROCESS OF LAW" IN
THE ENFORCEMENT OF A STATE'S CRIMINAL LAW.  EXPERIENCE HAS CONFIRMED
THE WISDOM OF OUR PREDECESSORS IN REFUSING TO GIVE A RIGID SCOPE TO
THIS PHRASE.  IT EXPRESSES A DEMAND FOR CIVILIZED STANDARDS OF LAW.  IT
IS THUS NOT A STAGNANT FORMULATION OF WHAT HAS BEEN ACHIEVED IN THE
PAST BUT A STANDARD FOR JUDGMENT IN THE PROGRESSIVE EVOLUTION OF THE
INSTITUTIONS OF A FREE SOCIETY.  THE SUGGESTION THAT "DUE PROCESS OF
LAW," AS GUARANTEED BY THE FOURTEENTH AMENDMENT, IS A COMPENDIOUS
EXPRESSION OF THE ORIGINAL FEDERAL BILL OF RIGHTS (AMENDMENTS I TO
VIII) HAS BEEN REJECTED BY THIS COURT AGAIN AND AGAIN AND AFTER
IMPRESSIVE CONSIDERATION.  SEE, E.G., HURTADO V. CALIFORNIA, 110 U.S.
516; TWINING V. NEW JERSEY, 211 U.S. 78; BROWN V. MISSISSIPPI, 297 U.S.
278; PALKO V. CONNECTICUT, 302 U.S. 319. 

IN THE BILL OF RIGHTS, EIGHTEENTH-CENTURY STATESMEN FORMULATED
SAFEGUARDS AGAINST THE RECURRENCE OF WELLDEFINED HISTORIC GRIEVANCES. 
SOME OF THESE SAFEGUARDS, SUCH AS THE RIGHT TO TRIAL BY A JURY OF
TWELVE AND IMMUNITY FROM PROSECUTION UNLESS INITIATED BY A GRAND JURY,
WERE BUILT ON EXPERIENCE OF RELATIVE AND LIMITED VALIDITY.  "FEW WOULD
BE SO NARROW OR PROVINCIAL AS TO MAINTAIN THAT A FAIR AND ENLIGHTENED
SYSTEM OF JUSTICE WOULD BE IMPOSSIBLE WITHOUT THEM."  PALKO V.
CONNECTICUT, SUPRA, AT 325.  OTHERS, LIKE THE FREEDOM OF THE PRESS OR
THE FREE EXERCISE OF RELIGION OR FREEDOM FROM CONDEMNATION WITHOUT A
FAIR TRIAL, EXPRESS RIGHTS THE DENIAL OF WHICH IS REPUGNANT TO THE
CONSCIENCE OF A FREE PEOPLE.  THEY EXPRESS THOSE "FUNDAMENTAL
PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE BASE OF ALL OUR
CIVIL AND POLITICAL INSTITUTIONS," HEBERT V. LOUISIANA, 272 U.S. 312,
316, AND ARE IMPLIED IN THE COMPREHENSIVE CONCEPT OF "DUE PROCESS OF
LAW." 

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT THUS HAS POTENCY
DIFFERENT FROM AND INDEPENDENT OF THE SPECIFIC PROVISIONS CONTAINED IN
THE BILL OF RIGHTS.  APART FROM ALL OTHER CONSIDERATIONS, HOW COULD IT
BE OTHERWISE WITHOUT CHARGING MADISON AND HIS GREAT CONTEMPORARIES IN
THE FRAMING AND ADOPTION OF THE BILL OF RIGHTS WITH WRITING INTO IT A
MEANINGLESS CLAUSE?  THE FIFTH AMENDMENT SPECIFICALLY PROHIBITS
PROSECUTION OF AN "INFAMOUS CRIME" EXCEPT BY INDICTMENT; IT FORBIDS
DOUBLE JEOPARDY AND SELF-INCRIMINATION, AS WELL AS DEPRIVATION OF
"LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW."  NOT TO
ATTRIBUTE TO DUE PROCESS OF LAW AN INDEPENDENT FUNCTION BUT TO CONSIDER
IT A SHORTHAND STATEMENT OF OTHER SPECIFIC CLAUSES IN THE SAME
AMENDMENT IS TO CHARGE THOSE WHO SECURED THE ADOPTION OF THIS AMENDMENT
WITH MERETRICIOUS REDUNDANCY BY INDIFFERENCE TO A PHRASE - "DUE PROCESS
OF LAW" - WHICH WAS ONE OF THE GREAT INSTRUMENTS IN THE VERY ARSENAL OF
CONSTITUTIONAL FREEDOM WHICH THE BILL OF RIGHTS WAS TO PROTECT AND
STRENGTHEN.  OF COURSE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT HAS THE SAME MEANING.  TO SUPPOSE THAT "DUE PROCESS OF LAW"
MEANT ONE THING IN THE FIFTH AMENDMENT AND ANOTHER IN THE FOURTEENTH IS
TOO FRIVOLOUS TO REQUIRE ELABORATE REJECTION.    A CONSTRUCTION WHICH
GIVES DUE PROCESS NO INDEPENDENT FUNCTION BUT MAKES OF IT A SUMMARY OF
THE SPECIFIC PROVISIONS OF THE BILL OF RIGHTS WOULD TEAR UP BY THE
ROOTS MUCH OF THE FABRIC OF LAW IN THE SEVERAL STATES.  THUS, IT WOULD
REQUIRE ALL THE STATES TO PROSECUTE SERIOUS CRIMES THROUGH THE GRAND
JURY SYSTEM LONG AGO ABANDONED BY MANY OF THEM, SEE HURTADO V.
CALIFORNIA, SUPRA, TO TRY SUCH CRIMES BY A JURY OF TWELVE WHICH SOME OF
THE STATES HAVE SEEN FIT TO MODIFY OR ABANDON, SEE MAXWELL V. DOW, 176
U.S. 581, TO ENFORCE THE PRIVILEGE AGAINST SELF-INCRIMINATION WITH THE
TECHNICAL REQUIREMENTS PREVAILING IN THE FEDERAL COURTS WHEN STATES,
CONSISTENTLY WITH FUNDAMENTAL NOTIONS OF JUSTICE, HAVE SEEN FIT TO MAKE
OTHER ARRANGEMENTS, SEE TWINING V. NEW JERSEY, SUPRA, AND TO HAVE JURY
TRIALS "IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL
EXCEED TWENTY DOLLARS," A REQUIREMENT WHICH THIS COURT HAS HELD OVER
AND OVER AGAIN FOR MORE THAN A HUNDRED YEARS DOES NOT APPLY TO
PROCEEDINGS IN STATE COURTS, SEE LIVINGSTON V. MOORE, 7 PET. 469, 551;
WALKER V. SAUVINET, 92 U.S. 90; PEARSON V. YEWDALL, 95 U.S. 294, 296. 
AND WE CAN HARDLY SELECT ONE PROVISION OF THE BILL OF RIGHTS AND REJECT
ANOTHER, AS FOR INSTANCE THE PROVISION OF THE FOURTH AMENDMENT AGAINST
UNREASONABLE SEARCH AND SEIZURE.  SUCH A VIEW WOULD NOT ONLY DISREGARD
THE HISTORIC MEANING OF "DUE PROCESS."  IT LEADS INEVITABLY TO A WARPED
CONSTRUCTION OF SPECIFIC PROVISIONS OF THE BILL OF RIGHTS TO BRING
WITHIN THEIR SCOPE CONDUCT CLEARLY CONDEMNED BY DUE PROCESS BUT NOT
EASILY FITTING INTO THE PIGEONHOLES OF THE SPECIFIC PROVISIONS.  BUT
FOR CONTRARY SUGGESTIONS, IT WOULD SEEM TOO LATE IN THE DAY TO TREAT
SERIOUSLY THE ARGUMENT THAT A PHRASE SO LADEN WITH HISTORIC MEANING AS
IS "DUE PROCESS OF LAW" CAN BE GIVEN AN IMPROVISED CONTENT OF SOME
SELECTED PROVISION OF THE ORIGINAL BILL OF RIGHTS. 

AND SO, WHEN A CONVICTION IN A STATE COURT IS PROPERLY HERE FOR
REVIEW, UNDER A CLAIM THAT A RIGHT PROTECTED BY THE FOURTEENTH
AMENDMENT HAS BEEN DENIED, THE QUESTION IS NOT WHETHER THE RECORD CAN
BE FOUND TO DISCLOSE AN INFRACTION OF ONE OF THE SPECIFIC PROVISIONS OF
THE FIRST EIGHT AMENDMENTS.  TO COME CONCRETELY TO THE PRESENT CASE,
THE QUESTION IS NOT WHETHER THE RECORD PERMITS A FINDING, BY A TENUOUS
PROCESS OF PSYCHOLOGICAL ASSUMPTIONS AND REASONING, THAT MALINSKI BY
MEANS OF A CONFESSION WAS FORCED TO SELF-INCRIMINATION IN DEFIANCE OF
THE FIFTH AMENDMENT.  THE EXACT QUESTION IS WHETHER THE CRIMINAL
PROCEEDINGS WHICH RESULTED IN HIS CONVICTION DEPRIVED HIM OF THE DUE
PROCESS OF LAW BY WHICH HE WAS CONSTITUTIONALLY ENTITLED TO HAVE HIS
GUILT DETERMINED.  JUDICIAL REVIEW OF THAT GUARANTY OF THE FOURTEENTH
AMENDMENT INESCAPABLY IMPOSES UPON THIS COURT AN EXERCISE OF JUDGMENT
UPON THE WHOLE COURSE OF THE PROCEEDINGS IN ORDER TO ASCERTAIN WHETHER
THEY OFFEND THOSE CANONS OF DECENCY AND FAIRNESS WHICH EXPRESS THE
NOTIONS OF JUSTICE OF ENGLISH-SPEAKING PEOPLES EVEN TOWARD THOSE
CHARGED WITH THE MOST HEINOUS OFFENSES.  THESE STANDARDS OF JUSTICE ARE
NOT AUTHORITATIVELY FORMULATED ANYWHERE AS THOUGH THEY WERE
PRESCRIPTIONS IN A PHARMACOPOEIA.  BUT NEITHER DOES THE APPLICATION OF
THE DUE PROCESS CLAUSE IMPLY THAT JUDGES ARE WHOLLY AT LARGE.  THE
JUDICIAL JUDGMENT IN APPLYING THE DUE PROCESS CLAUSE MUST MOVE WITHIN
THE LIMITS OF ACCEPTED NOTIONS OF JUSTICE AND IS NOT TO BE BASED UPON
THE IDIOSYNCRASIES OF A MERELY PERSONAL JUDGMENT.  THE FACT THAT JUDGES
AMONG THEMSELVES MAY DIFFER WHETHER IN A PARTICULAR CASE A TRIAL
OFFENDS ACCEPTED NOTIONS OF JUSTICE IS NOT DISPROOF THAT GENERAL RATHER
THAN IDIOSYNCRATIC STANDARDS ARE APPLIED.  AN IMPORTANT SAFEGUARD
AGAINST SUCH MERELY INDIVIDUAL JUDGMENT IS AN ALERT DEFERENCE TO THE
JUDGMENT OF THE STATE COURT UNDER REVIEW.  BUT THERE CANNOT BE BLIND
ACCEPTANCE EVEN OF SUCH WEIGHTY JUDGMENT WITHOUT DISREGARDING THE
HISTORIC FUNCTION OF CIVILIZED PROCEDURE IN THE PROGRESS OF LIBERTY. 

AND SO, WITH EVERY RESPECT FOR THE CONTRARY VIEWS OF THE MAJORITY OF
THE JUDGES BELOW AND OF SOME OF MY BRETHREN HERE, I CANNOT ESCAPE
AGREEMENT WITH THE CHIEF JUDGE OF THE NEW YORK COURT OF APPEALS AND TWO
OF HIS ASSOCIATES THAT THERE WAS NOT IN THIS CASE A FAIR TRIAL OF
ISSUES VITAL TO THE DETERMINATION OF GUILT OR INNOCENCE.  CONSIDERING
THE CIRCUMSTANCES OF MALINSKI'S DETENTION, THE LONG AND CONTINUOUS
QUESTIONING, THE WILLFUL AND WRONGFUL DELAY IN HIS ARRAIGNMENT AND THE
OPPORTUNITY THAT THAT GIVES FOR SECURING, BY EXTORTION, CONFESSIONS
SUCH AS WERE HERE INTRODUCED IN EVIDENCE,  FN1  THE FLAGRANT
JUSTIFICATION BY THE PROSECUTOR OF THIS ILLEGALITY AS A NECESSARY
POLICE PROCEDURE, INEVITABLY CALCULATED TO EXCITE THE JURY - ALL THESE
IN COMBINATION ARE SO BELOW THE STANDARDS BY WHICH THE CRIMINAL LAW,
ESPECIALLY IN A CAPITAL CASE, SHOULD BE ENFORCED AS TO FALL SHORT OF
DUE PROCESS OF LAW. 

IN REVIEWING A STATE CRIMINAL CONVICTION WE MUST BE DEEPLY MINDFUL OF
THE RESPONSIBILITIES OF THE STATES FOR THE ENFORCEMENT OF CRIMINAL
LAWS, AND EXERCISE WITH DUE HUMILITY OUR MERELY NEGATIVE FUNCTION IN
SUBJECTING CONVICTIONS FROM STATE COURTS TO THE VERY NARROW SCRUTINY
WHICH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AUTHORIZES. 
ON THE OTHER HAND, IN THE DISCHARGE OF THAT DUTY WE MUST GIVE NO EAR TO
THE LOOSE TALK ABOUT SOCIETY BEING "AT WAR WITH THE CRIMINAL" IF BY
THAT IT IS IMPLIED THAT THE DECENCIES OF PROCEDURE WHICH HAVE BEEN
ENSHRINED IN THE CONSTITUTION MUST NOT BE TOO FASTIDIOUSLY INSISTED
UPON IN THE CASE OF WICKED PEOPLE.  DESPITE THE FACT THAT ENGLISH
CRIMINAL JUSTICE HAS SERIOUS INADEQUACIES AND LAGS BEHIND SOME OF OUR
PENOLOGICAL ADVANCES, IT IS UNDENIABLE THAT ON THE WHOLE IT IS MUCH
MORE EFFECTIVE THAN OURS.  YET THERE CAN BE NO DOUBT, AS ENGLISH
PARLIAMENTARY PROCEEDINGS AND THE REPORTS OF THE ENGLISH COURT OF
CRIMINAL APPEAL AMPLY PROVE, THAT PRACTICES SUCH AS THIS RECORD REVEALS
ARE NOT THERE TOLERATED.  SEE, FOR INSTANCE, INQUIRY IN REGARD TO THE
INTERROGATION BY THE POLICE OF MISS SAVIDGE (1928), CMD.  3147; 217
H.C. DEB.  (5TH SER.  1928), MAY 17, 1928, 1303 ET SEQ. WHATEVER
DIFFERENCES THERE MAY BE BETWEEN THE SITUATIONS IN ENGLAND AND IN THIS
COUNTRY IN THE TASK OF LAW ENFORCEMENT, IT IS INTOLERABLE TO SUGGEST
THAT WE CANNOT HAVE EFFECTIVE LAW ENFORCEMENT WITHOUT CONDUCT SUCH AS
THIS RECORD SPREADS BEFORE US.  THE NOTION THAT WE MUST RESORT TO SUCH
METHODS IN ORDER TO CHECK CRIME OR TO CONVICT CRIMINALS HAS BEEN
REJECTED BY THOSE WHO HAVE HAD MOST TO DO WITH THE CRIMINAL LAW.  AFTER
CONSIDERATION OF THE PROBLEM, A COMMITTEE OF EMINENT LAWYERS REPORTED
THIS CONCLUSION: 

"THE REMEDY FOR THE ILLS WHICH AFFLICT THE ADMINISTRATION OF CRIMINAL
JUSTICE, WHATEVER THAT REMEDY MAY BE, WILL NOT BE FOUND IN MEASURES
WHICH VIOLATE LAW.  SUCH EXPEDIENTS, SO FAR FROM RESTORING HEALTH AND
VIGOR TO THE SYSTEM, ONLY AGGRAVATE AND PROTRACT THE DISORDER.  UNDER
OUR FORM OF GOVERNMENT THE MACHINERY OF CRIMINAL JUSTICE DEPENDS FOR
ITS FORCE AND EFFICIENCY UPON THE ENLIGHTENED MORAL SENSE OF THE
INDIVIDUALS TO WHOM THE PUBLIC BY THEIR CONSTITUTION AND LAWS HAVE
TEMPORARILY ENTRUSTED ITS OPERATION.  AND IT IS AS UNWISE AS IT IS
UNWARRANTED FOR THESE SERVANTS OF THE PUBLIC TO VIOLATE THE
CONSTITUTION AND LAWS IN THE VAIN HOPE OF ACCOMPLISHING USEFUL OR
BENEFICIAL RESULTS."  YEARBOOK (1928) ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK, 235, 255. 

THESE WERE THE VIEWS OF THREE FORMER UNITED STATES ATTORNEYS FOR THE
SOUTHERN DISTRICT OF NEW YORK AND THREE FORMER DISTRICT ATTORNEYS FOR
NEW YORK COUNTY WHOSE EXPERIENCE AND EFFECTIVENESS AS PROSECUTORS WOULD
HARDLY COUNTENANCE DOCTRINAIRE OR SENTIMENTAL VIEWS. 

FN1  IT IS SUGGESTED THAT "THE NEW YORK COURT OF APPEALS UNANIMOUSLY
SUSTAINED THE JURY'S VERDICT THAT THE CONFESSIONS WERE NOT COERCED."  I
DO NOT SO INTERPRET THE VIEWS OF THE MINORITY OF THAT COURT.  THE
OPINION OF CHIEF JUDGE LEHMAN, ON BEHALF OF THE THREE DISSENTING
JUDGES, WILL SPEAK FOR ITSELF: 

"HERE WE ARE AGREED THAT A FINDING BY THE JURY THAT THE DEFENDANT'S
CONFESSION, THOUGH OBTAINED WHILE HE WAS UNLAWFULLY DETAINED WITHOUT
ARRAIGNMENT, IS NOT AGAINST THE WEIGHT OF THE EVIDENCE.  THE OFFICERS
OF THE LAW DENY THAT THEY BEAT THE DEFENDANT OR THREATENED HIM. 
WHATEVER MAY HAVE BEEN THE MOTIVE OF THE POLICE IN TAKING MALINSKI TO
THE HOTEL BOSSERT INSTEAD OF TO A POLICE STATION OR JAIL, WE FIND NO
BASIS FOR ANY INFERENCE THAT THE POLICE BELIEVED THAT THE HOTEL WAS AN
APPROPRIATE PLACE WHERE A PERSON COULD, WITHOUT TOO MUCH RISK OF
DISCOVERY, BE BEATEN IN ORDER TO COMPEL A CONFESSION.  NONETHELESS, IN
THIS CASE, AS IN PEOPLE V. MUMMIANI (SUPRA (258 N.Y. 394), PP. 399
400), 'THE CONCLUSION IS INESCAPABLE' THAT THE POLICE DELAYED THE
ARRAIGNMENT OF THE DEFENDANT 'FOR THE PURPOSE OF SUBJECTING HIM TO AN
INQUISITION IMPOSSIBLE THEREAFTER' AT WHICH HE MIGHT HE INDUCED TO MAKE
A CONFESSION BY RESORT TO WHAT THE SUPREME COURT OF THE UNITED STATES
HAS DESCRIBED AS 'THOSE REPREHENSIBLE PRACTICES KNOWN AS THE "THIRD
DEGREE" WHICH, THOUGH UNIVERSALLY REJECTED AS INDEFENSIBLE, STILL FIND
THEIR WAY INTO USE.'  THERE CAN BE NO FAIR TRIAL OF THE ISSUE WHETHER
THE CONFESSION IS VOLUNTARY WHERE THE JURY IS NOT PROPERLY INFORMED
THAT THE DETENTION WAS UNLAWFUL AND THAT THEY MUST TAKE THAT FACT INTO
CONSIDERATION.  THAT HAS NOT BEEN DONE IN THIS CASE."  PEOPLE V.
MALINSKI, 292 N.Y. 360, 387-388. 

MR. JUSTICE RUTLEDGE, DISSENTING IN PART. 

I CONCUR IN REVERSING THE JUDGMENT AGAINST MALINSKI, BUT DISSENT FROM
AFFIRMANCE OF THE JUDGMENT AGAINST RUDISH. 

I AGREE THAT MALINSKI'S ORAL CONFESSION OF OCTOBER 23, 1942, WAS
COERCED, WAS USED IN EVIDENCE AGAINST HIM AND THAT THIS REQUIRES
REVERSAL OF THE JUDGMENT AGAINST HIM.  I THEREFORE JOIN IN THE COURT'S
OPINION IN SO FAR AS IT RELATES TO HIM.  BUT I AM UNABLE TO AGREE THAT
WE SHOULD STOP WITH THE RULING GROUNDED UPON THE CONFESSION OF OCTOBER
23 ALONE.  I THINK THE SUBSEQUENT CONFESSIONS, INCLUDING THE WRITTEN
ONE OF OCTOBER 27, WERE VITIATED WITH ALL THE COERCION WHICH DESTROYS
ADMISSIBILITY OF THE FIRST ONE.  ACCORDINGLY THEIR USE IN EVIDENCE ALSO
REQUIRES REVERSAL OF THE JUDGMENT AGAINST MALINSKI.  FURTHERMORE, SINCE
THE WRITTEN CONFESSION ALSO AFFECTED RUDISH AND IN MY OPINION THE
DEVICES EMPLOYED WERE INEFFECTIVE TO PREVENT ITS INFLUENCING THE
VERDICT AND THE JUDGMENT AGAINST HIM, I THINK THAT JUDGMENT LIKEWISE
SHOULD BE REVERSED. 

 I 

HOWEVER GREAT THE PROOF AGAINST HIM OTHERWISE MAY BE, UNDER OUR
SYSTEM NO MAN SHOULD BE PUNISHED PURSUANT TO A JUDGMENT INDUCED WHOLLY
OR IN PART BY A COERCED CONFESSION.  IN MY OPINION THE ENTIRE
PROCEDURE, FROM THE TIME MALINSKI WAS TAKEN INTO CUSTODY UNTIL HIS
WRITTEN CONFESSION WAS OBTAINED NEARLY FIVE DAYS LATER, WAS A SINGLE
AND CONTINUOUS PROCESS OF COERCION OF THE TYPE COMMONLY KNOWN AS "THE
THIRD DEGREE."  I DO NOT THINK THE CONSTITUTION HAS ROOM FOR THIS IN
COMPANY WITH ALL THE PROTECTIONS IT THROWS AROUND THE INDIVIDUAL
CHARGED WITH CRIME. 

THE STATE'S SUMMATION BOLDLY ADMITTED THE CASE WAS OF THAT
CHARACTER.  IT CHARACTERIZED MALINSKI'S TREATMENT AS "QUITE PROPER
POLICE PROCEDURE."  IT WAS "SOME MORE PSYCHOLOGY - LET HIM SIT AROUND
WITH A BLANKET ON HIM, HUMILIATE HIM THERE FOR A WHILE; LET HIM SIT IN
THE CORNER, LET HIM THINK HE IS GOING TO GET A SHELLACKING."  THE COURT
OF APPEALS CHARACTERIZED "THE REMARKS" AS "INDEFENSIBLE."  NOT ONLY THE
REMARKS, BUT ALSO THE CONDUCT THEY ACCURATELY DEPICT MUST BEAR THAT
CONDEMNATION, AS THE RECORD DEMONSTRATES. 

THE "PSYCHOLOGY" GOT RESULTS.  IT PRODUCED A CONFESSION N1, THE FIRST
IN A SERIES.  THE COURT OF APPEALS TREATED THEM AS ONE, THOUGH ITS
OPINION EXPRESSLY RECOGNIZED THERE WERE THREE OR MORE.  FN2  THE FIRST
CAME AT THE END OF TEN HOURS OF APPLIED "PSYCHOLOGY."  FN3  THE OTHERS
FOLLOWED LATER IN THE COURSE OF AND AT THE END OF FOUR DAYS OF ILLEGAL
DETENTION. 

BY ANY TEST THE FIRST CONFESSION WAS "INVOLUNTARY."  IT WAS UNWORTHY
OF CREDENCE IN ANY COURT.  NO OTHER CONCLUSION CAN BE DRAWN ON THE
RECORD.  THE UNDISPUTED FACTS  FN4  BEAR OUT THIS VIEW AND THE STATE'S
ADMISSION THAT IT WAS OBTAINED BY THREAT OF "SHELLACKING."  THE
EVIDENCE IS IN CONFLICT ON WHETHER PHYSICAL FORCE WAS USED.  FN5  THERE
IS NO CONFLICT THAT IT WAS THREATENED.  NOR IS THERE ROOM FOR INFERENCE
THAT THE THREAT DID NOT BRING ABOUT THE CONFESSION.  "MALINSKI WAS NOT
HARD TO BREAK."  NO CONVICTION TAINTED WITH THIS CONFESSION'S INFLUENCE
CAN STAND. 

MOREOVER, THE FIRST CONFESSION WAS USED TO SECURE THE DEFENDANTS'
CONVICTION.  IN MORE WAYS THAN ONE.  IN THE FIRST PLACE, IT WAS USED
DIRECTLY IN EVIDENCE AGAINST THE ACCUSED, AS THE COURT OF APPEALS
EXPRESSLY RECOGNIZED WHEN IT SUSTAINED THE TRIAL COURT'S ACTION IN
SUBMITTING THAT CONFESSION, TOGETHER WITH THE LATER ONES, TO THE JURY,
FN6  AND AS WE NOW HOLD.  FURTHER, WE WOULD BE INNOCENT INDEED IF WE
DID NOT BELIEVE THAT "LEADS" FURNISHED WERE FOLLOWED AND THAT THE
EVIDENCE THUS PROCURED AND PRESENTED, AS AN IMMEDIATE CONSEQUENCE OF
THE INITIAL COERCION, HAD PART IN BRINGING ABOUT THE VERDICT.  THE
RECORD BEARS OUT THAT BELIEF.  ELSE WHY WAS MALINSKI ILLEGALLY
DETAINED, INCOMMUNICADO, AT THE HOTEL FOR THREE DAYS AFTER HE HAD TOLD
"THE WHOLE THING"?  WHATEVER MAY BE THE RULE AS TO THE USE OF EVIDENCE
SECURED BY MEANS MERELY UNLAWFUL,  FN7 IN MY JUDGMENT THE CONSTITUTION
DOES NOT TOLERATE THE USE OF EVIDENCE OBTAINED BY UNCONSTITUTIONAL
METHODS, INCLUDING COERCIVE ONES, TO BRING ABOUT A CONVICTION FOR CRIME
WHICH IS CONSTITUTIONAL.  FN8  THE CONSTITUTION DOES NOT THUS NULLIFY
ITS OWN TERMS, SETTING THEM AT WAR WITH EACH OTHER.  THE "LEADS" THUS
SECURED IN VIOLATION OF BOTH THE FUNDAMENTAL LAW AND THE LAW OF THE
STATE  FN9 LED DIRECTLY TO THE LATER CONFESSIONS, INCLUDING THE WRITTEN
ONE, AND VITIATED THEM WITH EVERY VICE INFECTING THE FIRST.  IN MY
JUDGMENT, ALL THAT FOLLOWED THE FIRST CONFESSION WAS THE PRODUCT OF IT
AND THEREFORE OF THE INITIAL COERCION WHICH INDUCED IT.  BEYOND THIS,
THE COERCIVE INFLUENCES THEMSELVES CONTINUED THROUGHOUT THE PERIOD
BETWEEN THE FIRST CONFESSION AND THE LAST, WITH THE SINGLE EXCEPTION
THAT MALINSKI WAS GIVEN BACK HIS CLOTHING.    THIS FACT IS HIGHLY
MATERIAL AS SHOWING THE INITIAL COERCION.  WITHOUT MORE, IT BELIES THE
EXPLANATION THAT THE PRISONER WAS STRIPPED AND KEPT NAKED OR PARTLY SO
FOR TEN HOURS BECAUSE OTHERWISE HE MIGHT TRY TO ESCAPE.  FN10  THAT
DANGER, IF IT EXISTED, CONTINUED AS MUCH AFTER THE FIRST CONFESSION AS
BEFORE IT. IT CONTINUED THROUGHOUT THE WHOLE TIME HE WAS DETAINED AT
THE HOTEL.  MALINSKI WAS STRIPPED AND HELD NAKED OR PARTLY SO, NOT TO
PREVENT HIS ESCAPE, BUT TO DO JUST WHAT THE PROSECUTION SAYS WAS
INTENDED, TO "BREAK" A MAN "WHO WAS NOT HARD TO BREAK" BY INDUCING THE
FEAR OF A "SHELLACKING." 

BUT THE FACT THAT MALINSKI WAS GIVEN BACK HIS CLOTHING, WHEN AND ONLY
WHEN HE CONFESSED, DOES NOT SHOW THAT THE COERCION CEASED THEN OR
BEFORE THE LAST CONFESSION WAS SECURED.  IT SHOWS ONLY THAT ONE OF THE
COERCIVE TACTICS USED HAD BECOME NO LONGER NECESSARY AND THEREFORE NO
LONGER WAS EMPLOYED.  OTHERWISE, WHY WAS MALINSKI NOT PROMPTLY BOOKED
AND ARRAIGNED, AS HE WAS FOUR NIGHTS LATER WHEN THE WRITTEN CONFESSION
WAS SECURED.  WHY WAS HE DETAINED ILLEGALLY AT THE HOTEL FOR THREE DAYS
AND FOUR NIGHTS  FN11  AFTER HE ADMITTEDLY HAD TOLD "EVERYTHING"?  WHY,
FURTHER, WAS HE HELD INCOMMUNICADO DURING ALL THIS TIME, SEEING ONLY
THE POLICE, THE ASSISTANT PROSECUTING ATTORNEY, AND SPIELFOGEL?  WHY
ALSO WAS HE SUBJECTED TO EXAMINATION, INTERRUPTED NOW AND THEN IT IS
TRUE, IN SOME INSTANCES BECAUSE HE FELL ASLEEP, BUT CONTINUING
THROUGHOUT MOST OF EACH DAY, INCLUDING THE TIME OF THE TRIPS TO THE
SCENE OF THE CRIME AND THE POLICE GARAGE, AND TO THE EARLY HOURS OF
EACH MORNING?  FN12 

ALL THIS, THE STATE ASKS US TO BELIEVE, WAS CONSISTENT WITH
MALINSKI'S MAKING A "CLEAN BREAST" ENTIRELY VOLUNTARILY.  ALL THIS
COMPORTS WITH THE VIEW THAT THE COERCION HAD WORN OFF AND THE WRITTEN
CONFESSION WAS THE ACT OF A MAN FREED FROM THE FEARS AND THE PRESSURES
WHICH FORCED OUT THE FIRST ONE, OR SO A JURY COULD FIND.  SUCH IS THE
CLAIM MADE IN THE VIEW THAT THE FIRST CONFESSION WAS NOT USED IN
EVIDENCE AGAINST THE ACCUSED. 

I CANNOT ACCEPT THIS VIEW.  ON THE CONTRARY, I THINK ONLY ONE
CONCLUSION CAN BE DRAWN FROM THE FACTS, NAMELY, THAT ALL THE CONDITIONS
WHICH FORCED OUT MALINSKI'S FIRST CONFESSION CONTINUED IN FULL EFFECT
UNTIL THEY EXTORTED ALSO THE WRITTEN ONE, EXCEPTING ONLY THAT HE WAS
GIVEN BACK HIS CLOTHING.  THAT FACT ALONE IS NOT ENOUGH TO SHOW THAT
THE COERCIVE CONDITIONS WERE WHOLLY ABATED AND THE INFLUENCES THEY
GENERATED HAD NO PART IN BRINGING ABOUT THE LATER CONFESSIONS. 

TAKING AWAY MALINSKI'S CLOTHES IS NOT THE CONTROLLING FACT IN THIS
CASE.  IT WAS ONLY ONE FEATURE OF THE INITIAL DURESS.  THE DETAILS OF
THIS NEED NOT BE REPEATED HERE.  TAKEN ALTOGETHER, THE FIRST DAY'S
PROCEEDINGS WEAVE INTO A PATTERN TYPICAL OF "THIRD DEGREE" METHOD. 

THIS PATTERN WAS NOT TORN APART WHEN IT "BROKE" MALINSKI AND HE
CONFESSED FOR THE FIRST TIME.  WITH THAT EVENT HE WAS NOT ARRAIGNED OR
RELEASED.  HIS UNLAWFUL DETENTION CONTINUED FOR THREE DAYS AND FOUR
NIGHTS.  THE QUESTIONING CONTINUED AT FREQUENT INTERVALS EACH DAY AND
EACH NIGHT.  FN13 SPIELFOGEL  FN14  CONTINUED TO SEE HIM DAILY.  NO ONE
ELSE EXCEPT HIS IMPRISONERS WAS ALLOWED TO SEE HIM AT ANY TIME.  THAT
HE DID NOT ASK AGAIN TO SEE COUNSEL OR OTHERS IS BUT EVIDENCE THAT HE
HAD BEEN "BROKEN."  HE AND SPIELFOGEL WERE TAKEN TO THE SCENE OF THE
CRIME AND TO THE POLICE GARAGE TO IDENTIFY THE AUTOMOBILE USED IN THE
CRIME.  THESE TWO INCIDENTS, I THINK, SHOW CONCLUSIVELY THAT THE
COERCION CONTINUED AFTER, AND DID NOT ABATE WITH, THE FIRST
CONFESSION.  THEY WERE IN THEMSELVES CONFESSIONS, AS THE COURT OF
APPEALS RECOGNIZED.  IN MY VIEW THEY WERE AT ONCE THE PRODUCTS OF THE
FIRST CONFESSION AND IMMEDIATELY CONNECTING LINKS BETWEEN IT AND THE
WRITTEN ONE.  THEY WERE THE CONSEQUENCE OF CONTINUING, THOUGH
INTERRUPTED, EXAMINATION EXTENDING FROM THE TIME OF THE FIRST
CONFESSION TO THE LAST, AND CARRIED WITHIN THEMSELVES THAT CONFESSION'S
VICE, TRANSMITTING IT TO THE WRITTEN ONE.  THEY WERE THE PROCESS, WITH
ALL ELSE THAT WENT ON DURING THE PERIOD, BY WHICH WHATEVER HAD BEEN
OBTAINED AT THE FIRST CONFESSION WAS CHECKED, ELABORATED, VERIFIED AND
DISTILLED UNTIL THE FINAL ESSENCE WAS SEPARATED AND BOTTLED IN THE
WRITTEN CONFESSION, A PROCESS TYPICAL OF "THIRD DEGREE" PROCEDURE. 
THAT THEY BROUGHT FORTH STRONG CORROBORATING EVIDENCE DOES NOT NEGATIVE
OR NULLIFY THE EXISTENCE OF THE COERCIVE CONDITIONS WHICH PRODUCED BOTH
THE INDUCING ORIGINAL CONFESSION AND THE CORROBORATION THUS SECURED. 
FN15  FINALLY WHEN MALINSKI CONFESSED THE LAST TIME, IT WAS IN THE
EARLY HOURS OF THE MORNING, AFTER A NIGHT AND A DAY OF QUESTIONING. 
ONLY AFTER THIS CONFESSION WAS OBTAINED, BUT SIGNIFICANTLY VERY SHORTLY
THEREAFTER, WAS MALINSKI BOOKED, ARRAIGNED AND TAKEN TO THE JAIL. 

ALL THESE FACTS STAND UNDISPUTED ON THE RECORD.  WITH THE FACTS OF
THE FIRST DAY'S PROCEEDINGS, THEY ESTABLISH BEYOND QUESTION THE PATTERN
OF THE "THIRD DEGREE."  THEY ESTABLISH ITS APPLICATION FROM THE TIME OF
THE ARREST THROUGHOUT THE FIRST DAY UNTIL THE FIRST CONFESSION.  THEY
PROVE WITH EQUAL CLARITY, IN MY JUDGMENT, THAT EVERY THREAD IN THAT
PATTERN BUT ONE, NO LONGER NEEDED, CONTINUED TO HOLD THROUGH EVERY
MOMENT FROM THE FIRST CONFESSION TO THE LAST.  NO SINGLE OCCURRENCE,
NOT EXCLUDING THE RETURN OF THE CLOTHING, TOOK PLACE WHICH GIVES BASIS
TO CONCLUDE THAT THE INITIAL PSYCHOLOGICAL PRESSURES WERE RELAXED OR
THEIR COERCIVE INFLUENCE AND EFFECTS WERE NULLIFIED. 

IF AFTER THE CLOTHING WAS RETURNED, MALINSKI NO LONGER FEARED A
"SHELLACKING," AN INFERENCE THERE IS BROAD ROOM TO DOUBT, HE KNEW THERE
WERE OTHER PRESSURES TO TAKE THE PLACE OF THIS THREAT, PRESSURES MADE
POSSIBLE BY ITS SUCCESS IN FORCING FROM HIM THE FIRST CONFESSION.  HE
KNEW THAT ALL OF THE SUBSEQUENT EXAMINATION, AS IT TURNED OUT THROUGH
FOUR NIGHTS AND THREE DAYS, WOULD BE FOUNDED ON THIS CONFESSION AND
THAT HE WOULD BE FORCED TO SQUARE EVERY STATEMENT, BOTH IN IT AND MADE
LATER, NOT ONLY WITH EVERY OTHER STATEMENT BUT ALSO WITH EVERY FACT TO
THE DISCOVERY OF WHICH ANY STATEMENT MIGHT LEAD.  THIS IN FACT WAS WHAT
HE WAS BEING REQUIRED TO DO, AMONG OTHER INCIDENTS, AT THE SCENE OF THE
CRIME AND AT THE POLICE GARAGE.  IN SHORT, HE KNEW THAT HE WAS "ON THE
GRILL" AND WOULD CONTINUE SO UNTIL HE MADE WHATEVER STATEMENT MIGHT
SATISFY THE OFFICIALS WHO HAD HIM IN CHARGE.  CF. CHAMBERS V. FLORIDA,
309 U.S. 227, 240. 

TO SAY THAT IN SUCH CIRCUMSTANCES THE COERCIVE INFLUENCES HAD ENDED
BEFORE THEY PRODUCED THE RESULT AT WHICH THE ENTIRE PROCEDURE WAS AIMED
AND WITH WHICH IT STOPPED, IS, IN MY OPINION, A CONCLUSION WE CANNOT
DRAW AND THE FACTS ALLOW NO ROOM FOR PERMITTING A JURY TO MAKE SUCH AN
INFERENCE. 

WERE THE QUESTION WHOLLY FRESH, THE CONCLUSION WOULD SEEM DOUBTFUL IN
ANY CASE THAT A LATER CONFESSION COULD BE ENTIRELY VOLUNTARY AND
UNCOERCED, WHERE AN EARLIER ONE HAD BEEN COMPELLED.  A MAN ONCE BROKEN
IN WILL DOES NOT READILY, IF EVER, RECOVER FROM THE BREAKING.  CF. MR.
JUSTICE MURPHY, DISSENTING IN LYONS V. OKLAHOMA, 322 U.S. 596, 606.  NO
CHANGE IN CIRCUMSTANCES CAN WHOLLY WIPE OUT ITS EFFECTS UPON HIMSELF OR
UPON OTHERS.  THEREAFTER HE ACTS WITH KNOWLEDGE THAT THE DAMAGE HAS
BEEN DONE.  OTHERS DO LIKEWISE.  HE IS SUSPECT BY HIS OWN MOUTH AND
MUST CONTINUE SO, WHETHER HE REPUDIATES OR CONFIRMS THE CONFESSION.  IF
HE REPUDIATES, HE INCURS THE ADDITIONAL SUSPICION OF LYING, AND HIS
CREDIBILITY AS A WITNESS IN HIS OWN BEHALF IS IMPAIRED, IF NOT
DESTROYED.  IF HE CONFIRMS, HE DOES SO WITH THE KNOWLEDGE HE HAS
ALREADY CONFESSED AND ANY OTHER COURSE WILL BRING UPON HIM THE
SUSPICIONS AND THE BURDEN OF PROOF THEY ENTAIL. 

FOR THESE REASONS A STRICTER STANDARD IS NECESSARY WHERE THE
CONFESSION TENDERED FOLLOWS A PRIOR COERCED ONE THAN IN THE CASE OF A
SINGLE CONFESSION ASSERTED TO HAVE BEEN COERCED.  IT WOULD SEEM
CONSISTENT THEREFORE WITH OUR CONSTITUTIONAL TRADITION THAT ONCE A
COERCED CONFESSION HAS BEEN OBTAINED ALL LATER ONES SHOULD BE EXCLUDED
FROM EVIDENCE, WHEREVER THERE IS EVIDENCE THAT THE COERCED ONE HAS BEEN
USED TO SECURE THE LATER ONES.  IN NO OTHER WAY CAN THE EFFECTS OF THE
COERCION BE WHOLLY EXCLUDED FROM THE TRIAL.  IN NO OTHER WAY CAN ONE
WHO HAS BEEN SUBJECTED TO USE OF FORCE OR COERCIVE "PSYCHOLOGY" BE PUT
UPON AN EQUAL PLANE FOR THE DETERMINATION OF HIS GUILT OR INNOCENCE
WITH OTHERS WHO HAVE ESCAPED SUCH UNLAWFUL ACTION OR BE PUT BACK IN THE
POSITION HE IS ENTITLED BY LAW TO OCCUPY UNTIL HIS TRIAL AND A VERDICT
OF GUILTY, THAT OF A MAN PRESUMED TO BE INNOCENT UNTIL THE CONTRARY IS
PROVED BY LEGAL MEANS BEYOND A REASONABLE DOUBT.  CF. LEHMAN, CH. J.,
DISSENTING IN THE COURT OF APPEALS, 292 N.Y. AT 383. 

IN ANY EVENT, WHERE THERE IS A CONTINUOUS PROCESS OF COERCION SUCH AS
EXISTED IN THIS CASE, RESULTING IN A SERIES OF CONFESSIONS OF WHICH THE
FIRST IS THE CREATIVE PRECURSOR OF THE LATER ONES, AND THEY MOREOVER
ARE OBTAINED UNDER IDENTICAL CIRCUMSTANCES EXCEPT FOR RELAXATION IN ONE
OF THE INITIAL PRESSURES, THERE HARDLY CAN BE ROOM FOR SAYING, AS WAS
SAID IN THE LYONS CASE, THAT THE LATTER CONFESSIONS ARE NOT COERCED. 
FN16  ACCORDINGLY I THINK MALINSKI'S CONVICTION WAS VITIATED AS MUCH BY
ADMISSION OF THE LATTER CONFESSIONS AS BY ADMITTING THE EARLIER ORAL
ONE.  IF SO, HE SHOULD NOT BE REQUIRED TO STAND ANOTHER TRIAL AT WHICH
THOSE CONFESSIONS MAY BE USED AGAINST HIM.  NOR SHOULD THE STATE
OFFICIALS BE PERMITTED TO THINK THEY MAY BE USED AGAIN, THOUGH THE
FIRST ONE MUST BE EXCLUDED. 

                                II 

THIS IS A CAPITAL CASE.  RUDISH HAS BEEN SENTENCED TO DEATH.  THE
WRITTEN CONFESSION INVOLVED HIM.  IT WAS USED IN EVIDENCE AGAINST
MALINSKI.  THE COURT AND COUNSEL ATTEMPTED WHAT I THINK IS AND PROVED
TO BE THE IMPOSSIBLE, NAMELY, TO KEEP RUDISH'S IDENTITY AS ONE OF THE
PERSONS MENTIONED IN THE CONFESSION FROM THE JURY BY DEVICES SIMILAR TO
THOSE EMPLOYED IN ANDERSON V. UNITED STATES, 318 U.S. 350, 356, WITH
THE SAME RESULT.  THE DEVICES WERE SO OBVIOUS AS PERHAPS TO EMPHASIZE
THE IDENTITY OF THOSE THEY PURPORTED TO CONCEAL.  TRUE, THE CHARGE IN
THE ANDERSON CASE WAS NOT METICULOUS AS WAS THE ONE GIVEN HERE TO
SEPARATE THE DEFENDANTS AND APPLY THE CONFESSION ONLY AGAINST THE ONE
AS TO WHOM TECHNICALLY IT WAS ADMITTED.  NEVERTHELESS, I THINK THE LINE
TOO FINE TO DRAW, IN CAPITAL CASES AT ANY RATE, BETWEEN THAT CASE AND
THIS ONE IN THIS RESPECT.  THERE COULD BE NO VALID BASIS FOR ADMITTING
THIS CONFESSION AGAINST RUDISH IN A SEPARATE TRIAL.  DUE PROCESS DOES
NOT PERMIT ONE TO BE CONVICTED UPON HIS OWN COERCED CONFESSION.  IT
SHOULD NOT ALLOW HIM TO BE CONVICTED UPON A CONFESSION WRUNG FROM
ANOTHER BY COERCION.  FN17  A CONVICTION SUPPORTED ONLY BY SUCH A
CONFESSION COULD BE BUT A VARIATION OF TRIAL BY ORDEAL.  CF. BROWN V.
MISSISSIPPI, 297 U.S. 278, 285; CHAMBERS V. FLORIDA, SUPRA, AT 236,
237.  THE EFFECT IS NOT DIFFERENT BECAUSE THE TWO, CONFESSOR AND THE
PERSON IMPLICATED, ARE TRIED TOGETHER OR BECAUSE THE TORTURE IS APPLIED
TO OTHER WITNESSES BUT NOT TO THE ACCUSED.  NOR IS IT DIFFERENT, IN
THIS RESPECT, BECAUSE TRIAL IS IN A STATE RATHER THAN A FEDERAL COURT. 
ACCORDINGLY I THINK THE PRACTICE FOLLOWED IN THE ANDERSON CASE AND IN
ASHCRAFT V. TENNESSEE, 322 U.S. 143, SHOULD BE FOLLOWED IN THIS ONE,
AND THE JUDGMENT AGAINST RUDISH SHOULD BE REVERSED. 

IN LISENBA V. CALIFORNIA, 314 U.S. 219, THE COURT STATED:  "LIKE THE
SUPREME COURT OF CALIFORNIA WE DISAPPROVE THE VIOLATIONS OF LAW
INVOLVED IN THE TREATMENT OF THE PETITIONER, AND WE THINK IT RIGHT TO
ADD THAT WHERE A PRISONER, HELD INCOMMUNICADO, IS SUBJECTED TO
QUESTIONING BY OFFICERS FOR LONG PERIODS, AND DEPRIVED OF THE ADVICE OF
COUNSEL, WE SHALL SCRUTINIZE THE RECORD WITH CARE TO DETERMINE WHETHER,
BY THE USE OF HIS CONFESSION, HE IS DEPRIVED OF LIBERTY OR LIFE THROUGH
TYRANNICAL OR OPPRESSIVE MEANS.  OFFICERS OF THE LAW MUST REALIZE THAT
IF THEY INDULGE IN SUCH PRACTICES THEY MAY, IN THE END, DEFEAT RATHER
THAN FURTHER THE ENDS OF JUSTICE."  314 U.S. AT 240. 

THE WARNING EXACTLY FITS THIS CASE, AS DO ALSO THE REPEATED WARNINGS
REFERRED TO BY THE DISSENTING OPINION IN THE COURT OF APPEALS.  FN18  I
THINK THEY SHOULD BE MADE EFFECTIVE.  THAT CAN BE DONE FULLY IN THIS
CASE ONLY IF THE JUDGMENTS AGAINST BOTH OF THE PETITIONERS ARE
REVERSED. 

FN1  THE EVIDENCE IS UNDISPUTED THAT MALINSKI ARRIVED AT THE HOTEL AT
ABOUT 8:15 A.M., WAS IMMEDIATELY STRIPPED, AND WAS NOT GIVEN BACK HIS
CLOTHING, EXCEPT HIS SHORTS, UNTIL AFTER HE CONFESSED THAT EVENING. 
THE SUMMATION ADDED TO THE STATEMENT QUOTED ABOVE IN THE TEXT:
"MCNALLY (A POLICE OFFICER) TOOK ONE LOOK AT HIM AND SAID, 'COME HERE'
JUST A LITTLE TOUGH TALK - 'WHAT DO YOU KNOW ABOUT IT?'  SIX O'CLOCK
IN THE EVENING AFTER HE WAS PICKED UP HE TOLD THE WHOLE THING." 

FN2  "COUNSEL HAVE URGED UPON US, HOWEVER, THAT IT WAS ERROR FOR THE
COURT TO SUBMIT TO THE JURY THE CONFESSION MADE BY MALINSKI ORALLY ON
OCTOBER 23RD, BY WORD AND DEED ON OCTOBER 25TH AND 26TH AND TO AN
ASSISTANT DISTRICT ATTORNEY AND A STENOGRAPHER IN THE EARLY MORNING
HOURS OF OCTOBER 27TH  .... 

"WHEN WE HAVE SPOKEN OF MALINSKI'S CONFESSION WE INCLUDE, OF COURSE,
NOT ONLY THE CONFESSION MADE ORALLY TO A POLICE OFFICER ON THE FRIDAY
NIGHT OF THE ARREST BUT ALSO THE TWO AUTOMOBILE TRIPS ON SUNDAY AND
MONDAY, ONE TO THE POLICE GARAGE TO PERMIT MALINSKI TO IDENTIFY THE
AUTOMOBILE USED IN THE CRIME AND THE OTHER TO CONEY ISLAND TO REVISIT A
RESTAURANT AND THE SCENE OF THE CRIME, AND THE CONFESSION TO THE
DISTRICT ATTORNEY WHICH WAS TAKEN STENOGRAPHICALLY IN THE EARLY MORNING
OF TUESDAY, OCTOBER 27TH."  292 N.Y. 360, 370, 373-374.    FN3  CF.
NOTE 1. 

FN4  THEY ARE STATED FULLY IN THE COURT'S OPINION. 

FN5  MALINSKI TESTIFIED TO VIOLENCE BY TWO OFFICERS WHO CONTRADICTED
HIM IN THIS RESPECT.  THE MAJORITY IN THE COURT OF APPEALS
CHARACTERIZED THE TESTIMONY AS TO VIOLENCE AS BEING "NOT VERY STRONG." 

FN6  CF. NOTE 2. 

FN7  COMPARE PEOPLE V. ADAMS, 176 N.Y. 351, 68 N.E. 636, AFF'D SUB
NOM. ADAMS V. NEW YORK, 192 U.S. 585; PEOPLE V. DEFORE, 242 N.Y. 13,
150 N.E. 585, CERT. DENIED, 270 U.S. 657; WITH BOYD V. UNITED STATES,
116 U.S. 616; WEEKS V. UNITED STATES, 232 U.S. 383; SILVERTHORNE LUMBER
CO. V. UNITED STATES, 251 U.S. 385; GOULED V. UNITED STATES, 255 U.S.
298; DISSENTING OPINIONS OF JUSTICES HOLMES AND BRANDEIS, OLMSTEAD V.
UNITED STATES, 277 U.S. 438, 469, 471; MCNABB V. UNITED STATES, 318
U.S. 332; ANDERSON V. UNITED STATES, 318 U.S. 350.  SEE FRAENKEL,
RECENT DEVELOPMENTS IN THE LAW OF SEARCH AND SEIZURE (1928) 13 MINN. L.
REV. 1; ATKINSON, ADMISSIBILITY OF EVIDENCE OBTAINED THROUGH
UNREASONABLE SEARCHES AND SEIZURE (1925) 25 COL. L. REV. 11; CHAFEE,
PROGRESS OF THE LAW (1922) 35 HARV. L. REV. 673, 694. 

FN8  CF. BOYD V. UNITED STATES, 116 U.S. 616; WEEKS V. UNITED STATES,
232 U.S. 383. 

FN9  THIS FORMED ONE OF THE CHIEF GROUNDS OF THE STRONG DISSENTING
OPINION, CONCURRED IN BY THREE JUDGES, IN THE COURT OF APPEALS.  292
N.Y. 376.  CF. NOTE 18 INFRA. 

FN10  THE OFFICERS ALSO "EXPLAINED" THEIR FAILURE TO TAKE MALINSKI
BEFORE A MAGISTRATE "WITHOUT UNNECESSARY DELAY" AS THE NEW YORK LAW
REQUIRES (CODE CRIM. PROC. SEC. 165) BY SAYING THAT THOUGH HE WAS
SEIZED ON OCTOBER 23RD HE WAS NOT "ARRESTED" UNTIL OCTOBER 26TH.  CF.
THE DISSENTING OPINION OF LEHMAN, CH. J., 292 N.Y. AT 381-382. 

FN11  THE FOURTH NIGHT WAS DEVOTED TO FINAL INTERROGATION AT THE BATH
BEACH POLICE STATION. 

FN12  THE QUESTIONING OF THE FIRST DAY AND EVENING, FRIDAY, OCTOBER
23, CONTINUED AFTER THE ORAL CONFESSION AND WAS STILL IN PROGRESS AT
3:00 A.M. ON SATURDAY, OCTOBER 24.  TEN TO TWELVE PERSONS WERE USUALLY
PRESENT AND MANY PARTICIPATED IN THE QUESTIONING.  INVESTIGATORS STAYED
FOR A TIME AND LEFT TO RETURN LATER.  ONE DETECTIVE LEFT THE HOTEL AT
10:00 OR 11:00 P.M. ON OCTOBER 23 AND, ON HIS RETURN AT 3:00 A.M.,
FOUND THE QUESTIONING STILL CONTINUING.  THE INTERROGATION, ON AND OFF,
HAD THEN PROCEEDED FOR NINETEEN HOURS. 

THROUGHOUT OCTOBER 24, A POLICE LIEUTENANT TESTIFIED, MANY OF THE
DETECTIVES "CONTINUOUSLY" EXAMINED AND TALKED TO MALINSKI.  THE LATTER
SAID, "THEY KEPT QUESTIONING ME ALL THAT DAY AND NIGHT."  AGAIN ON
OCTOBER 25 HE WAS QUESTIONED "TO CLEAR UP CERTAIN POINTS," THOUGH AN
OFFICER DENIED THAT THIS "WENT ON FOR HOURS AND HOURS."  ON THAT DAY
MALINSKI WAS TAKEN ON A TOUR OF THE SCENE OF THE CRIME.  THE ASSISTANT
DISTRICT ATTORNEY AND A STENOGRAPHER ACCOMPANIED THE PARTY.  MALINSKI
TESTIFIED WITHOUT CONTRADICTION THAT HE "WAS BEING QUESTIONED RIDING
ALL THE WAY BACK TO THE HOTEL," AND THAT THE QUESTIONING CONTINUED
THERE UNTIL 2:00 A.M. 

ON MONDAY, OCTOBER 26, TEN OR TWELVE DETECTIVES WERE STILL PRESENT
WITH MALINSKI AT THE HOTEL.  DURING THE COURSE OF THAT DAY HE WAS
QUESTIONED AND TAKEN TO A POLICE GARAGE TO IDENTIFY THE AUTOMOBILE USED
IN THE CRIME.  THERE IS MUCH CONFUSION IN THE OFFICERS' TESTIMONY AS TO
THE TIME OF THIS TRIP AND WHETHER IT PRECEDED OR FOLLOWED ONE TO THE
BATH BEACH POLICE STATION.  THE WEIGHT OF THEIR EVIDENCE PERHAPS IS
THAT THEY WENT TO THE POLICE GARAGE FIRST, THEN TO THE POLICE STATION,
ARRIVING THERE ABOUT 5:00 P.M.  THE STATE'S SUPPLEMENTARY BRIEF
SUPPORTS THIS VIEW AND THE VIEW THAT ON ARRIVAL AT THE STATION
QUESTIONING BY THE ASSISTANT DISTRICT ATTORNEY AND OTHERS BEGAN.  THERE
IS EVERY REASON TO BELIEVE THAT THE FINAL QUESTIONING OF MALINSKI,
LEADING TO A WRITTEN CONFESSION AT 2:10 A.M., OCTOBER 27, HAD PROCEEDED
FOR SOME NINE HOURS.  AT THE VERY LEAST, WE KNOW THAT THE QUESTIONING
BY A BATTERY OF INVESTIGATORS (EIGHT POLICE OFFICERS IN ADDITION TO THE
ASSISTANT DISTRICT ATTORNEY) WAS IN PROGRESS AT 7:00 P.M., OCTOBER 26,
AND CONTINUED TO MIDNIGHT. 

FN13  CF. NOTE 12 SUPRA. 

FN14  SPIELFOGEL WAS AS MUCH A TOOL TO SECURE MALINSKI'S CONFESSION
AS ANY MEMBER OF THE POLICE.  HE WAS BROUGHT DOWN FROM SING SING ON
OCTOBER 14, 1942, BY THE ASSISTANT DISTRICT ATTORNEY AND OTHERS BECAUSE
OF WHAT HE HAD REVEALED ABOUT THE CRIME.  HE MADE A STATEMENT TO THE
POLICE BEFORE MALINSKI WAS TAKEN INTO CUSTODY AND WAS PRESENT AT THE
HOTEL SHORTLY AFTER MALINSKI WAS BROUGHT THERE.  HE AT FIRST REFUSED TO
DISCUSS THE CASE WITH THE STATE OFFICIALS.  NO SATISFACTORY EXPLANATION
IS OFFERED OF HIS CHANGE IN ATTITUDE. 

FN15  AT THE POLICE GARAGE, ALTHOUGH MALINSKI HAD "CONFESSED," HE
STILL SOUGHT TO PROTECT HIMSELF BY USING HIS HANDKERCHIEF TO OPEN THE
CAR DOOR BECAUSE, HE SAID AT THE TRIAL, HE "DID NOT WANT TO BE FRAMED"
BY LEAVING HIS FINGERPRINTS. 

FN16  THAT THE WRITTEN CONFESSION DID NOT FOLLOW ON THE HEELS OF THE
FIRST, IN THE PRESENT CIRCUMSTANCES, ONLY AGGRAVATED THE ORIGINAL
COERCION.  THE SIGNIFICANT FACT IN LYONS V. OKLAHOMA, NOT PRESENT IN
THIS CASE, WAS THAT THE SECOND CONFESSION WAS MADE UNDER AUSPICES
ENTIRELY DIFFERENT FROM THOSE SURROUNDING THE FIRST.  THE PRISONER WAS
IN THE CUSTODY OF DIFFERENT OFFICIALS, MEN SHOWN BY THE RECORD TO BE
PERSONS WHOM HE HAD NO REASON TO FEAR.  AND THERE WAS NO EVIDENCE THAT
THEY SHARED IN OR AT ANY TIME APPLIED THE BRUTAL METHODS BY WHICH IT
WAS CHARGED, AND DENIED, THE FIRST CONFESSION HAD BEEN OBTAINED.  THE
PRINCIPAL QUESTION WAS WHETHER THE LAPSE OF TIME BETWEEN THE TWO
CONFESSIONS, ONLY SOME TWELVE HOURS, WAS SUFFICIENT SO THAT THE SECOND
COULD BE TAKEN AS HAVING BEEN MADE FREE OF THE COMPULSIONS WHICH
INDUCED THE FIRST, NOTWITHSTANDING THE CHANGE IN OFFICIALS HAVING
CUSTODY.  A MAJORITY HELD THAT THE DIFFERENCE IN TIME WAS SUFFICIENT TO
PERMIT THE QUESTION TO GO TO THE JURY.  BUT THE DECISION ALSO TOOK INTO
ACCOUNT THE CHANGE IN CUSTODIANS.  322 U.S. AT 604.  THE LYONS CASE
THEREFORE IS NOT AUTHORITY FOR THE VIEW THAT THE JURY MIGHT HAVE FOUND
THE SECOND CONFESSION VOLUNTARY, IF THERE HAD BEEN NO SUCH CHANGE.  NOR
DOES IT RULE THAT THE COERCING OFFICIALS, BY PROLONGING THE PERIOD OF
COERCION, THOUGH RELAXING IT IN SOME OF THE TACTICS USED, CAN ESCAPE
ITS CONSEQUENCES AND NULLIFY ITS CONTINUING EFFECTS. 

FN17  THE MATTER GOES BEYOND AND DEEPER THAN MERE VIOLATION OF THE
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION, TO WHATEVER EXTENT
THIS MAY HAVE BEEN APPLIED TO THE STATES BY ADOPTION OF THE FOURTEENTH
AMENDMENT.  COMPARE TWINING V. NEW JERSEY, 211 U.S. 78, AND SNYDER V.
MASSACHUSETTS, 291 U.S. 97, WITH BROWN V. MISSISSIPPI, 297 U.S. 278;
CF. HYSLER V. FLORIDA, 315 U.S. 411, STATING AT 413:  "HOWEVER, IF
FLORIDA THROUGH HER RESPONSIBLE OFFICIALS KNOWINGLY USED FALSE
TESTIMONY WHICH WAS EXTORTED FROM A WITNESS 'BY VIOLENCE AND TORTURE,'
ONE CONVICTED MAY CLAIM THE PROTECTION OF THE DUE PROCESS CLAUSE
AGAINST A CONVICTION BASED UPON SUCH TESTIMONY."  ALTHOUGH THE MAJORITY
THOUGHT THE TENDER OF PROOF INSUFFICIENT TO REQUIRE A TRIAL ON A WRIT
OF ERROR CORAM NOBIS, THREE DISSENTING JUSTICES DEEMED IT IRRELEVANT
WHETHER THE STATE OFFICIALS KNEW THE COERCED CONFESSIONS WERE FALSE,
315 U.S. AT 424, AND INTERPRETED BROWN V. MISSISSIPPI, SUPRA, AND
CHAMBERS V. FLORIDA, SUPRA, AS BARRING "CONFESSIONS WRUNG FROM THE
ACCUSED OR HIS ACCOMPLICES ..."  CF. ALSO MOONEY V. HOLOHAN, 294 U.S.
103, AND PYLE V. KANSAS, 317 U.S. 213. 

FN18  "WE CANNOT CLOSE OUR EYES TO THE FACT THAT OUR FREQUENTLY AND
SOLEMNLY REPEATED ADMONITIONS TO LAW ENFORCEMENT OFFICERS THAT THEY ARE
NOT ABOVE THE LAW AND MAY NOT IN THEIR ZEAL TO OBTAIN CONVICTIONS HOLD,
WITHOUT ARRAIGNMENT, PERSONS SUSPECTED OF CRIME IN ORDER TO HAVE
OPPORTUNITY TO OBTAIN CONFESSIONS, ARE OFTEN UNHEEDED."  292 N.Y. AT
386. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 

MR. JUSTICE MURPHY, DISSENTING IN PART. 

AS POINTED OUT IN THE OPINION OF THE COURT, MALINSKI'S ORAL CONFESSION
OF OCTOBER 23 WAS INVOLUNTARY IN CHARACTER AND HENCE ITS ADMISSION
INVALIDATED HIS CONVICTION.  BUT IT IS EQUALLY CLEAR TO ME THAT THE
PATTERN OF MENTAL FEAR CONTINUED UNTIL HIS ARRAIGNMENT ON OCTOBER 27,
THEREBY VOIDING AS WELL HIS CONFESSIONS BY WORD AND DEED ON OCTOBER 25
AND 26 AND THE WRITTEN CONFESSION MADE DURING THE EARLY HOURS OF
OCTOBER 27.  IT IS INCONCEIVABLE, MOREOVER, THAT THE ADMISSION OF THESE
TAINTED CONFESSIONS WAS WITHOUT INFLUENCE IN THE CONVICTION OF THE CO
DEFENDANT RUDISH.  ACCORDINGLY, I AGREE WITH MR. JUSTICE RUTLEDGE THAT
THE JUDGMENT SHOULD BE REVERSED ALSO AS TO RUDISH. 

THE SUBHUMAN PSYCHOLOGY APPLIED BY THE POLICE TO MALINSKI BEGAN SOON
AFTER HIS ARREST ON OCTOBER 23.  HE WAS STRIPPED, HUMILIATED AND
THREATENED WITH A SHELLACKING.  HE WAS QUESTIONED THROUGHOUT THE DAY
AND WAS DENIED THE BENEFIT OF COUNSEL, RELATIVES OR FRIENDS.  THIS
SUCCEEDED IN BREAKING MALINSKI'S WILL, WHICH THE PROSECUTOR BOASTED
"WAS NOT HARD TO BREAK," AND THE POLICE WERE ABLE TO EXTRACT AN ORAL
CONFESSION FROM HIM.  BUT THIS WAS NOT ENOUGH; THE POLICE WANTED A
WRITTEN CONFESSION.  SO THEY CONTINUED TO HOLD THE "BROKEN" MALINSKI
UNTIL SUCH A CONFESSION WAS FORTHCOMING ON OCTOBER 27.  DURING THIS
PERIOD HE WAS ILLEGALLY HELD WITHOUT BEING ARRAIGNED, WAS QUESTIONED AT
FREQUENT INTERVALS AND SAW NO ONE SAVE HIS QUESTIONERS AND SPIELFOGEL. 
THE ONLY CONCESSION MADE TO HIM WAS THE PRIVILEGE OF WEARING ALL HIS
CLOTHES. 

THERE IS AN ABSENCE OF ANY EVIDENCE THAT THE "BROKEN" MALINSKI
REGAINED HIS FREE INDEPENDENT WILL DURING THE ILLEGAL DETENTION OR THAT
THE EFFECTS OF THE HUMILIATION AND THREATENED SHELLACKING, WHICH CAUSED
HIM TO "BREAK," WORE OFF PRIOR TO THE WRITTEN CONFESSION ON OCTOBER
27.  THERE WAS NOT EVEN A TWELVE-HOUR INTERVAL BETWEEN THE
INTERROGATIONS OR A CHANGE OF INTERROGATORS WHICH THIS COURT IN LYONS
V. OKLAHOMA, 322 U.S. 596, THOUGHT SUFFICIENT TO BREAK THE PATTERN OF
COERCION.  THE REIGN OF MENTAL FEAR AND TERROR HERE WAS CONTINUOUS FOR
FOUR DAYS AND MALINSKI'S WILL WAS IN A SHATTERED STATE ON THE OCCASION
OF MAKING EACH CONFESSION.  SUCH CONFESSIONS CANNOT BE DIGNIFIED WITH
THE ADJECTIVE "VOLUNTARY," HOWEVER NON-COERCIVE MAY HAVE BEEN THE
IMMEDIATE SURROUNDING CIRCUMSTANCES. 

ONCE AN ATMOSPHERE OF COERCION OR FEAR IS CREATED, SUBSEQUENT
CONFESSIONS SHOULD AUTOMATICALLY BE INVALIDATED UNLESS THERE IS PROOF
BEYOND ALL REASONABLE DOUBT THAT SUCH AN ATMOSPHERE HAS BEEN DISPELLED
AND THAT THE ACCUSED HAS COMPLETELY REGAINED HIS FREE INDIVIDUAL WILL. 
OTHERWISE WE MIGHT AS WELL DISCARD ALL PRETENSE TO A CIVILIZED AND
HUMANE SYSTEM OF CRIMINAL JUSTICE AND ADOPT WITHOUT FURTHER ADO THE
TERRORISTIC POLICE PRACTICES OF CERTAIN PAST AND PRESENT TYRANNIES IN
OTHER PARTS OF THE WORLD.  SINCE ALL THE CONFESSIONS HERE WERE MADE IN
A CONTINUING BACKGROUND OF THREATENED COERCION, IT FOLLOWS THAT THEY
ALL WERE VOID. 

ONE OTHER MATTER IS WORTHY OF COMMENT.  MALINSKI, AS WELL AS HIS CO
DEFENDANT RUDISH, IS AN AMERICAN OF JEWISH ANCESTRY.  THE PROSECUTOR
MADE CERTAIN REMARKS IN HIS STATEMENT TO THE JURY THAT MAY HAVE BEEN
INTENDED AND WERE INDICATIVE OF A DESIRE TO APPEAL TO RACIAL AND
RELIGIOUS BIGOTRY.  HE SPOKE OF MALINSKY AS A "JERK FROM THE EAST SIDE"
AND REFERRED TO HIS RESIDENCE IN "THE LOWER EAST SIDE OF MANHATTAN,
WHERE YOUR LIFE IS NOT WORTH A PRETZEL."  THIS IS A CHARACTERIZATION OF
A TERRITORY CONTAINING A LARGE PROPORTION OF AMERICANS OF LIKE ORIGIN. 

THOSE CLOTHED WITH AUTHORITY IN COURT ROOMS OF THIS NATION HAVE THE
DUTY TO CONDUCT AND SUPERVISE PROCEEDINGS SO THAT AN ACCUSED PERSON MAY
BE ADJUDGED SOLELY ACCORDING TO THE DICTATES OF JUSTICE AND REASON. 
THIS DUTY IS AN ESPECIALLY HIGH ONE IN CAPITAL CASES.  INSTEAD OF AN
ATTITUDE OF INDIFFERENCE AND CARELESSNESS IN SUCH MATTERS, JUDGES AND
OFFICERS OF THE COURT SHOULD TAKE THE INITIATIVE TO CREATE AN
ATMOSPHERE FREE FROM UNDUE PASSION AND EMOTIONALISM.  THIS NECESSARILY
REQUIRES THE EXCLUSION OF ATTACKS OR APPEALS MADE BY COUNSEL TENDING TO
REFLECT UPON THE RACE, CREED OR COLOR OF THE DEFENDANT.  HERE THE
DEFENDANTS' VERY LIVES WERE AT STAKE AND IT WAS OF THE UTMOST
IMPORTANCE THAT THE TRIAL BE CONDUCTED IN SURROUNDINGS FREE FROM
POISONOUS AND DANGEROUS IRRELEVANCIES THAT MIGHT INFLAME THE JURY TO
THE DETRIMENT OF THE DEFENDANTS.  BRAZEN APPEALS RELATING TO THEIR RACE
OR FAITH HAD NO RELEVANCE WHATEVER TO THE GRAVE ISSUE FACING THE JURY
AND COULD ONLY BE DESIGNED TO INFLUENCE THE JURY UNFAIRLY; AND SUBTLE
AND INDIRECT ATTACKS WERE EVEN MORE DANGEROUS AND EFFECTIVE. 
STATEMENTS OF THIS CHARACTER ARE THE DIRECT ANTITHESIS OF EVERY
PRINCIPLE OF AMERICAN JUSTICE AND FAIR PLAY.  THEY ALONE ARE ENOUGH TO
CAST GRAVE DOUBTS UPON THE VALIDITY OF THE ENTIRE PROCEEDINGS. 

MR. CHIEF JUSTICE STONE. 

MR. JUSTICE ROBERTS, MR. JUSTICE REED, MR. JUSTICE JACKSON AND I
THINK THE JUDGMENT SHOULD BE AFFIRMED AS TO BOTH PETITIONERS. 

MALINSKI, CHARGED WITH MURDER, MADE SEVERAL CONFESSIONS OF GUILT,
WHICH WERE INTRODUCED IN EVIDENCE AT HIS TRIAL.  TWO, MADE TO THE
POLICE, ARE ALLEGED TO HAVE BEEN COERCED, THE FIRST ON OCTOBER 23RD AND
THE OTHER FOUR DAYS LATER ON OCTOBER 27TH.  DURING THAT TIME HE
ADMITTED TO THE POLICE OTHER ISOLATED FACTS WHICH TENDED TO FASTEN
GUILT UPON HIM.  THREE FRIENDS OF MALINSKI ALSO TESTIFIED THAT ON
SEVERAL OCCASIONS SHORTLY AFTER THE COMMISSION OF THE CRIME AND LONG
BEFORE HIS ARREST, HE VOLUNTARILY ADMITTED TO THEM AND TO HIS SISTER
THAT HE HAD COMMITTED THE CRIME. 

THE TESTIMONY AS TO WHETHER THE FIRST CONFESSION TO THE POLICE WAS
COERCED WAS SHARPLY CONFLICTING.  THERE WAS NO EVIDENCE THAT PETITIONER
WAS SUBJECTED TO ANY COERCION AT OR ABOUT THE TIME OF THE SECOND
CONFESSION TO THE POLICE, SAVE AS THE JURY COULD FIND THAT THE
COERCION, IF ANY, ATTENDING THE FIRST CONFESSION CONTINUED TO OPERATE
SO AS TO INDUCE THE SECOND.    THE TRIAL COURT, AFTER REVIEWING FULLY
THE EVIDENCE OF PETITIONER'S DETENTION AND THE COERCION BY THE POLICE
WHICH IS SAID TO HAVE ATTENDED HIS FIRST CONFESSION, AND OF THE DELAY
IN HIS ARRAIGNMENT, INSTRUCTED THE JURY:  "THIS TESTIMONY WAS ADDUCED
SOLELY ON THE QUESTION AS TO WHETHER OR NOT THE ALLEGED CONFESSION
LATER MADE WAS THE RESULT OF THE COERCION, EITHER DIRECT OR IMPLIED,
WHICH IS PROHIBITED BY THE STATUTE, AND WHICH INVALIDATES A CONFESSION
IF MADE.  IF YOU SHOULD FIND THAT THE ARRAIGNMENT OF THE DEFENDANT WAS
DELAYED, YOU MAY CONSIDER THAT ON THE QUESTION OF THE VOLUNTARINESS OF
ANY CONFESSION MADE BY MALINSKI, INCLUDING THE ONE MADE IN THE EARLY
HOURS OF OCTOBER 27  ..." 

THE TRIAL COURT ALSO CORRECTLY INSTRUCTED THE JURY THAT PETITIONER'S
CONTENTION WAS THAT THE CONFESSION OF OCTOBER 27 WAS TAINTED BY THE
DETENTION AND COERCION WHICH HAD PRECEDED IT, AND THAT "YOU MUST FIND
BEYOND A REASONABLE DOUBT THAT THIS CONFESSION WAS A VOLUNTARY ONE
BEFORE YOU WOULD HAVE THE RIGHT TO CONSIDER IT."  WITH RESPECT TO THIS
LATER CONFESSION, THE JURY WAS FURTHER INSTRUCTED: 

"IF YOU FIND BEYOND A REASONABLE DOUBT THAT THE CONFESSION IS A
VOLUNTARY ONE, YOU WILL THEN DETERMINE WHETHER OR NOT THE STATEMENTS
INCULPATING THE DEFENDANT, THEREIN CONTAINED, ARE TRUE.  IF YOU SHALL
HAVE RESOLVED BOTH OF THESE QUESTIONS IN FAVOR OF THE PROSECUTION, THEN
AND ONLY THEN WILL YOU CONSIDER THE CONFESSION IN DETERMINING THE GUILT
OR INNOCENCE OF THE DEFENDANT  ..."  THERE WERE NO EXCEPTIONS TO THESE
INSTRUCTIONS AND NO REQUESTS FOR A FURTHER CHARGE ON THIS SUBJECT. 

AFTER A PAINSTAKING REVIEW OF THE FACTS, THE NEW YORK COURT OF
APPEALS UNANIMOUSLY SUSTAINED THE JURY'S VERDICT THAT THE CONFESSIONS
WERE NOT COERCED.  FN1  THAT COURT, ON APPEAL FROM A JUDGMENT OF DEATH,
HAS POWER, WHICH WE ARE NOT FREE TO EXERCISE IN A CASE COMING FROM A
STATE COURT, TO MAKE NEW FINDINGS OF FACT, ART. 6, SEC. 7 OF THE NEW
YORK CONSTITUTION OF 1939; FN2  PEOPLE V. MCGRATH, 202 N.Y. 445, 450;
96 N.E. 92, AND ALSO TO GIVE JUDGMENT WITHOUT REGARD TO TECHNICAL
ERRORS, DEFECTS OR EXCEPTIONS NOT AFFECTING SUBSTANTIAL RIGHTS.  N.Y.
CODE CRIM. PROC., SEC. 542. 

IT SEEMS TO BE RECOGNIZED BY THIS COURT THAT THE QUESTION WHETHER THE
SECOND CONFESSION WAS COERCED WAS PROPERLY SUBMITTED TO THE JURY.  BUT
IT HOLDS THAT THE FIRST CONFESSION WAS COERCED AND WAS SUBMITTED TO THE
JURY AS ITSELF PROOF OF GUILT, AND THAT FOR THAT REASON THE VERDICT
MUST BE SET ASIDE ALTHOUGH THE JURY FOUND UNDER THE INSTRUCTIONS OF THE
COURT, WHICH WE HAVE QUOTED, THAT THE SECOND CONFESSION WAS NOT
COERCED. 

EVEN THOUGH THE FIRST CONFESSION WERE THE PRODUCT OF COERCION, THE
TRIAL COURT, AS WE HAVE POINTED OUT, INSTRUCTED THE JURY THAT THE
EVIDENCE WITH RESPECT TO THE FIRST CONFESSION WAS ADDUCED ONLY TO SHOW
THAT THE SECOND WAS COERCED.  AND THE JURY WAS INSTRUCTED THAT IT COULD
CONSIDER THE SECOND CONFESSION, ONLY IF IT FOUND IT VOLUNTARY, AND THAT
IT COULD CONVICT IN THAT CASE.  IN VIEW OF THESE INSTRUCTIONS, WE
CANNOT SAY THAT THE FIRST CONFESSION WAS SUBMITTED TO THE JURY, OR
THAT, IN THE ABSENCE OF ANY EXCEPTION OR REQUEST TO CHARGE MORE
PARTICULARLY, THERE WAS ANY ERROR OF WHICH PETITIONER CAN COMPLAIN. 
HENCE THE JURY'S VERDICT MUST BE TAKEN AS CONCLUSIVELY ESTABLISHING
THAT THE SECOND CONFESSION WAS VOLUNTARY AND WAS NOT INDUCED BY ANY
COERCION ATTENDING THE FIRST.  LYONS V. OKLAHOMA, 322 U.S. 596. 

BUT EVEN IF IT COULD BE SAID, AS THE COURT OF APPEALS SEEMS TO HAVE
THOUGHT, THAT THE JURY'S VERDICT WAS A DETERMINATION THAT THE FIRST
CONFESSION WAS NOT COERCED, WE PERCEIVE NO GROUND ON WHICH THAT
DETERMINATION CAN BE DISREGARDED.  THIS COURT RECOGNIZES THAT IF ONLY
THE TESTIMONY SUBMITTED TO THE JURY BE CONSIDERED, THE QUESTION WHETHER
THE FIRST CONFESSION WAS COERCED WAS FOR THE JURY.  THE COURT SETS
ASIDE THE JURY'S VERDICT SOLELY BECAUSE OF THE INTERPRETATION IT PLACES
UPON THE CONFLICTING TESTIMONY IN THE LIGHT OF CERTAIN REMARKS, WHICH
THE OPINION OF MR. JUSTICE DOUGLAS QUOTES, MADE BY THE PROSECUTING
ATTORNEY IN THE COURSE OF HIS SUMMATION TO THE JURY.  BUT THE
PROSECUTOR DID NOT TESTIFY IN THE CASE, AND IT DOES NOT APPEAR THAT HE
WAS PRESENT AT ANY OF THE INTERVIEWS OF PETITIONER BY THE POLICE, OR
HAD ANY KNOWLEDGE OF THE ALLEGED COERCION.  AT MOST, HIS REMARKS WERE
AN ILL-ADVISED ATTEMPT AT JUSTIFICATION OF THE COERCION WHICH THE
DEFENSE HAD ALLEGED.  HE ADDED NO WORD BY WAY OF PROOF OR ADMISSION TO
THE EVIDENCE ALREADY BEFORE THE JURY.  THE JURY, ACTING WITHIN ITS
PROVINCE, COULD HAVE CONCLUDED, AS IT EVIDENTLY DID, THAT THE
PROSECUTOR'S REMARKS DID NOT TEND TO PROVE ANYTHING MORE THAN HIS OWN
INEPTITUDE.  THE COURT'S DECISION THUS SETS ASIDE THE CONVICTION BY THE
PROCESS OF RE-WEIGHING THE CONFLICTING TESTIMONY AS TO THE ALLEGED
COERCION, IN THE LIGHT OF THE ARGUMENTS ADDRESSED TO THE JURY. 

IT IS NOT THE FUNCTION OF THIS COURT, IN REVIEWING, ON CONSTITUTIONAL
GROUNDS, CRIMINAL CONVICTIONS BY STATE COURTS, TO WEIGH THE EVIDENCE ON
WHICH THE JURY HAS PRONOUNCED ITS VERDICT, ALSO IN THE LIGHT OF THE
ARGUMENTS OF COUNSEL, OR TO SIT AS A SUPER-JURY.  WE HAVE, IN
APPROPRIATE CASES, SET ASIDE STATE CONVICTIONS AS VIOLATING DUE PROCESS
WHERE WE WERE ABLE TO SAY THAT THE CASE WAS IMPROPERLY SUBMITTED TO THE
JURY OR THAT THE UNCHALLENGED EVIDENCE PLAINLY SHOWED A VIOLATION OF
THE CONSTITUTIONAL RIGHTS OF THE ACCUSED.  BROWN V. MISSISSIPPI, 297
U.S. 278; CHAMBERS V. FLORIDA, 309 U.S. 227; WARD V. TEXAS, 316 U.S.
547.  BUT WE HAVE NOT HITHERTO OVERTURNED THE VERDICT OF A STATE COURT
JURY BY WEIGHING THE CONFLICTING EVIDENCE ON WHICH IT WAS BASED. 

THE RIGHTFUL INDEPENDENCE OF THE STATES IN THE ADMINISTRATION OF
THEIR OWN CRIMINAL LAWS IN THEIR OWN COURTS REQUIRES THAT IN SUCH CASES
WE SCRUPULOUSLY AVOID RETRYING THE FACTS WHICH HAVE BEEN SUBMITTED TO
THE JURY, EXCEPT ON A CLEAR SHOWING OF ERROR SUBSTANTIALLY AFFECTING
THE CONSTITUTIONAL RIGHTS OF THE ACCUSED.  WE AGREE THAT THE
CONTROLLING PRINCIPLES UPON WHICH THIS COURT REVIEWS ON CONSTITUTIONAL
GROUNDS A STATE COURT CONVICTION FOR CRIME, ARE AS STATED IN THE
OPINION OF MR. JUSTICE FRANKFURTER.  BUT THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT IS CONCERNED WITH MATTERS OF SUBSTANCE.  IT CANNOT
RIGHTLY BE MADE THE INSTRUMENT OF REFORM OF THE MANNERS OF STATE
OFFICIALS.  AND HOWEVER REPREHENSIBLE OR EVEN CRIMINAL THE ACTS OF
STATE OFFICIALS MAY BE, IN SO FAR AS THE CONDUCT OF THE TRIAL IS
CONCERNED, THEY DO NOT INFRINGE DUE PROCESS UNLESS THEY RESULT IN THE
USE AGAINST THE ACCUSED OF EVIDENCE WHICH IS COERCED OR KNOWN TO THE
STATE TO BE FRAUDULENT OR PERJURED, OR UNLESS THEY OTHERWISE DENY TO
HIM THE SUBSTANCE OF A FAIR TRIAL, WHICH IS DUE PROCESS.  SEE LISENBA
V. CALIFORNIA, 314 U.S. 219, 235-238; BUCHALTER V. NEW YORK, 319 U.S.
427, AND AUTHORITIES CITED. 

JUDGED BY THESE STANDARDS, WE THINK THAT THERE WAS NO DENIAL OF DUE
PROCESS IN SUBMITTING PETITIONER MALINSKI'S CONFESSION TO THE JURY IN
THE MANNER IN WHICH THEY WERE IN FACT SUBMITTED, AND THAT THERE IS NO
CONSTITUTIONAL GROUND FOR SETTING ASIDE THE JURY'S VERDICT AGAINST
HIM.  WE CANNOT SAY ON THIS RECORD THAT THE JURY WAS NOT RIGHTLY
PERMITTED TO DETERMINE WHETHER PETITIONER'S CONFESSIONS OF GUILT TO THE
POLICE WERE COERCED, OR THAT THE VERDICT WAS WITHOUT SUPPORT IN THE
EVIDENCE, OR THAT THE INSTRUCTION THAT THE JURY COULD FIND THE
DEFENDANT GUILTY IF IT FOUND THAT THE SECOND CONFESSION WAS NOT THE
RESULT OF THE ALLEGED COERCION AT THE TIME OF THE FIRST, WAS NOT
PROPERLY GIVEN. 

PETITIONER RUDISH HAS RAISED NO SUBSTANTIAL FEDERAL QUESTION
REVIEWABLE HERE, AND HIS CONVICTION, AS WELL AS MALINSKI'S, SHOULD BE
AFFIRMED. 

FN1  THE CHIEF JUDGE AND TWO OTHERS, DISSENTING, THOUGHT THAT THE
CONVICTION SHOULD BE REVERSED BECAUSE OF THE INSUFFICIENCY OF THE
CHARGE AS TO THE DELAY IN ARRAIGNMENT; THEY APPARENTLY RELIED ON STATE
GROUNDS, AND NOT ON THE FEDERAL CONSTITUTION. 

FN2  THE AMENDMENT TO ART. 6, SEC. 7, EFFECTIVE JANUARY 1, 1944,
RETAINS THIS POWER IN THE COURT OF APPEALS. 
..END :







GEORGIA V. PENNSYLVANIA R. CO., 324 U.S. 439 


NO. 11, ORIGINAL.  ARGUED JANUARY 2, 1945.  - DECIDED MARCH 26, 1945.  -
MOTION GRANTED. 


1.  LEAVE IS GRANTED THE STATE OF GEORGIA TO FILE IN THIS COURT
AGAINST TWENTY RAILROADS A BILL OF COMPLAINT IN WHICH THE STATE, SUING
AS PARENS PATRIAE AND IN ITS PROPRIETARY CAPACITY, AND SEEKING
INJUNCTIVE RELIEF, CHARGES THAT THE DEFENDANTS HAVE CONSPIRED TO FIX
FREIGHT RATES WHICH DISCRIMINATE AGAINST THE STATE AND THAT THE
NORTHERN ROADS USE COERCION ON THE SOUTHERN ROADS IN THE FIXING OF
JOINT THROUGH RATES.  CONST., ART. III, SEC. 2; 28 U.S.C. SEC. 341;
CLAYTON ACT, SEC. 16.  PP. 443, 452. 

2.  THE BILL STATES A JUSTICIABLE CONTROVERSY.  MASSACHUSETTS V.
MELLON, 262 U.S. 447, AND FLORIDA V. MELLON, 273 U.S. 12,
DISTINGUISHED.  P. 445. 

3.  THAT THE UNITED STATES MAY BRING CRIMINAL PROSECUTIONS OR SUITS
FOR INJUNCTIONS UNDER THE ANTITRUST LAWS DOES NOT PRECLUDE THE STATE
FROM MAINTAINING THE SUIT.  P. 447. 

4.  IN DETERMINING WHETHER A STATE MAY INVOKE THE ORIGINAL
JURISDICTION OF THIS COURT IN A DISPUTE WHICH IS JUSTICIABLE, THE
INTERESTS OF THE STATE ARE NOT CONFINED TO THOSE WHICH ARE PROPRIETARY,
BUT EMBRACE ALSO THE SO-CALLED QUASI-SOVEREIGN INTERESTS.  P. 447. 

5.  THE STATE MAY MAINTAIN THE SUIT AS PARENS PATRIAE ACTING ON
BEHALF OF ITS CITIZENS, AND THE INJURY TO THE STATE IN ITS PROPRIETARY
CAPACITY MAY BE TREATED AS MAKEWEIGHT.  P. 450. 

6.  A STATE IS A "PERSON" ENTITLED TO SUE FOR INJUNCTIVE RELIEF UNDER
SEC. 16 OF THE CLAYTON ACT.  P. 452. 

7.  THE STATE IS NOT ENTITLED TO RECOVER DAMAGES, EVEN IF THE
CONSPIRACY BE PROVED.  KEOGH V. CHICAGO & N.W.R. CO., 260 U.S. 156.  P.
453. 

8.  THE INJUNCTIVE RELIEF SOUGHT BY THE STATE AGAINST THE ALLEGED
RATE-FIXING COMBINATION AND CONSPIRACY AMONG THE DEFENDANT CARRIERS IS
NOT A MATTER OVER WHICH THE INTERSTATE COMMERCE COMMISSION HAS
JURISDICTION, AND THE RELIEF SOUGHT IS THEREFORE NOT SUCH AS IS
AVAILABLE UNDER SEC. 16 OF THE CLAYTON ACT ONLY IN A SUIT BROUGHT BY
THE UNITED STATES.  P. 454. 

9.  RATE-FIXING COMBINATIONS ARE NOT IMMUNE FROM THE OPERATION OF THE
ANTITRUST LAWS.  P. 456. 

10.  THERE IS NO WARRANT IN THE INTERSTATE COMMERCE ACT AND THE
SHERMAN ACT FOR SAYING THAT THE AUTHORITY TO FIX JOINT THROUGH RATES
CLOTHES WITH LEGALITY A CONSPIRACY TO DISCRIMINATE AGAINST A STATE OR A
REGION, TO USE COERCION IN THE FIXING OF RATES, OR TO PUT IN THE HANDS
OF A COMBINATION OF CARRIERS A VETO POWER OVER RATES PROPOSED BY A
SINGLE CARRIER.  P. 458. 

11.  THE PROVISION OF SEC. 16 OF THE CLAYTON ACT, AUTHORIZING RELIEF
BY INJUNCTION "WHEN AND UNDER THE SAME CONDITIONS AND PRINCIPLES AS
INJUNCTIVE RELIEF AGAINST THREATENED CONDUCT THAT WILL CAUSE LOSS OR
DAMAGE IS GRANTED BY COURTS OF EQUITY," IS HERE SUFFICIENTLY SATISFIED
TO JUSTIFY FILING OF THE BILL OF COMPLAINT.  P. 460. 

12.  THAT THE RATES WHICH HAVE BEEN FIXED BY THE ALLEGED COMBINATION
MAY OR MAY NOT BE HELD UNLAWFUL BY THE INTERSTATE COMMERCE COMMISSION
IS IMMATERIAL TO THE ISSUE HERE PRESENTED.  P. 460. 

13.  A COMBINATION TO FIX REASONABLE AND NON-DISCRIMINATORY RATES MAY
NEVERTHELESS BE ILLEGAL.  P. 460. 

14. DAMAGE MUST BE PRESUMED TO FLOW FROM A CONSPIRACY TO MANIPULATE
RATES WITHIN THAT ZONE OF REASONABLENESS (BETWEEN MAXIMA AND MINIMA)
WITHIN WHICH A CARRIER IS ORDINARILY FREE TO ADJUST ITS CHARGES FOR
ITSELF.  P. 461. 

15.  CONSTRUED AS CHARGING A CONSPIRACY AMONG THE DEFENDANTS TO USE
COERCION IN THE FIXING OF RATES AND TO DISCRIMINATE AGAINST GEORGIA IN
THE RATES WHICH ARE FIXED, THE BILL STATES A CAUSE OF ACTION UNDER THE
ANTITRUST LAWS.  P. 462. 

16.  THE BILL IS HERE CONSTRUED WITH THAT LIBERALITY ACCORDED THE
COMPLAINT OF A SOVEREIGN STATE AS PRESENTING A SUBSTANTIAL QUESTION
WITH SUFFICIENT CLARITY AND SPECIFICITY AS TO REQUIRE A JOINDER OF
ISSUES.  P. 463. 

17.  A STATE MAY NOT INVOKE THE ORIGINAL JURISDICTION OF THIS COURT
IN A SUIT AGAINST ONE OF ITS CITIZENS.  P. 463. 

18.  SINCE THE TWO DEFENDANT CORPORATIONS WHICH CLAIM TO BE CITIZENS
OF GEORGIA ARE NOT INDISPENSABLE PARTIES TO THE SUIT, IT IS UNNECESSARY
AT THIS STAGE OF THE PROCEEDINGS TO DETERMINE WHETHER THEY ARE CITIZENS
OF GEORGIA WITHIN THE MEANING OF ART. III, SEC. 2 OF THE CONSTITUTION. 
THE CITIZENSHIP OF THE TWO DEFENDANTS IN QUESTION MAY BE CHALLENGED BY
A MOTION TO STRIKE; AND, IF THEY ARE STRICKEN, THIS COURT WOULD NOT
LOSE ORIGINAL JURISDICTION OVER THE CONTROVERSY BETWEEN GEORGIA AND THE
OTHER DEFENDANTS.  P. 463. 

19.  IT DOES NOT NECESSARILY FOLLOW FROM THE GRANT OF LEAVE TO FILE
THE BILL OF COMPLAINT THAT THIS COURT MUST EXERCISE ITS ORIGINAL
JURISDICTION.  P. 464. 

20.  CLAUSE 2 OF SEC. 2 OF ARTICLE III OF THE CONSTITUTION, WHICH
CONFERS ON THIS COURT JURISDICTION OF THOSE CASES INTER ALIA "IN WHICH
A STATE SHALL BE PARTY," DOES NOT GRANT EXCLUSIVE JURISDICTION TO THIS
COURT IN THE CLASSES OF CASES ENUMERATED, AND THE EXERCISE OF THE
JURISDICTION IS NOT MANDATORY IN EVERY CASE.  P. 464. 

21. THIS COURT CAN NOT TAKE JUDICIAL NOTICE OF THE DISTRICT OR
DISTRICTS WHEREIN ALL OF THE DEFENDANT RAILROADS ARE "FOUND" OR
"TRANSACT BUSINESS," WITHIN THE MEANING OF THE VENUE PROVISION OF SEC.
12 OF THE CLAYTON ACT.  P. 466. 

22.  NO SHOWING HAVING BEEN MADE HERE THAT ALL OF THE DEFENDANTS CAN
BE "FOUND" IN SOME CONVENIENT FORUM, IT CAN NOT BE SAID THAT GEORGIA
HAS A PROPER AND ADEQUATE REMEDY APART FROM THE ORIGINAL JURISDICTION
OF THIS COURT.  ONCE A STATE MAKES OUT A CASE WITHIN THE ORIGINAL
JURISDICTION OF THIS COURT, ITS RIGHT TO COME HERE IS ESTABLISHED; THE
CONSTITUTION DOES NOT REQUIRE THAT THE STATE GO FURTHER AND SHOW THAT
NO OTHER FORUM IS AVAILABLE TO IT.  P. 466. 

23.  APART FROM SPECIFIC EXCEPTIONS CREATED BY CONGRESS, THE
JURISDICTION OF THE FEDERAL DISTRICT COURTS IS TERRITORIAL.  P. 467. 

24.  THE PROVISION OF SEC. 5 OF THE SHERMAN ACT EMPOWERING THE COURT
BEFORE WHOM PROCEEDINGS UNDER SEC. 4 ARE PENDING TO BRING IN PARTIES
WHO RESIDE OUTSIDE THE DISTRICT IS LIMITED, AS IS SEC. 4, TO SUITS
BROUGHT BY THE UNITED STATES.  P. 467. 

25.  IN THE EXERCISE OF ITS DISCRETION THIS COURT DOES NOT REMIT
GEORGIA TO THE FEDERAL DISTRICT COURTS FOR RELIEF BUT GRANTS LEAVE TO
FILE THE AMENDED BILL OF COMPLAINT.  P. 468. 

GEORGIA V. PENNSYLVANIA RAILROAD CO. ET AL. 

ON MOTION FOR LEAVE TO FILE AMENDED BILL OF COMPLAINT. 

ON MOTION BY THE STATE OF GEORGIA FOR LEAVE TO FILE AN AMENDED BILL
OF COMPLAINT AGAINST TWENTY RAILROADS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE STATE OF GEORGIA BY THIS MOTION FOR LEAVE TO FILE A BILL OF
COMPLAINT  FN1  SEEKS TO INVOKE THE ORIGINAL JURISDICTION OF THIS COURT
UNDER ART. III, SEC. 2 OF THE CONSTITUTION.  SEE JUDICIAL CODE SEC.
233, 28 U.S.C. SEC. 341.  THE DEFENDANTS ARE SOME TWENTY RAILROAD
COMPANIES.  ON NOVEMBER 6, 1944, WE ISSUED A RULE TO SHOW CAUSE WHY
GEORGIA SHOULD NOT BE PERMITTED TO FILE ITS BILL OF COMPLAINT.  RETURNS
TO THE RULE HAVE BEEN MADE AND ORAL ARGUMENT HAD. 

GEORGIA SUES IN FOUR CAPACITIES, ONLY TWO OF WHICH WE NEED MENTION:
(1) IN HER CAPACITY AS A QUASI-SOVEREIGN OR AS AGENT AND PROTECTOR OF
HER PEOPLE AGAINST A CONTINUING WRONG DONE TO THEM; AND (2) IN HER
CAPACITY AS A PROPRIETOR TO REDRESS WRONGS SUFFERED BY THE STATE AS THE
OWNER OF A RAILROAD AND AS THE OWNER AND OPERATOR OF VARIOUS
INSTITUTIONS OF THE STATE. 

THE ESSENCE OF THE COMPLAINT IS A CHARGE OF A CONSPIRACY AMONG THE
DEFENDANTS IN RESTRAINT OF TRADE AND COMMERCE AMONG THE STATES.  IT
ALLEGES THAT THEY HAVE FIXED ARBITRARY AND NONCOMPETITIVE RATES AND
CHARGES FOR TRANSPORTATION OF FREIGHT BY RAILROAD TO AND FROM GEORGIA
SO AS TO PREFER THE PORTS OF OTHER STATES OVER THE PORTS OF GEORGIA. 
IT CHARGES THAT SOME SIXTY RATE BUREAUS, COMMITTEES, CONFERENCES,
ASSOCIATIONS AND OTHER PRIVATE RATE-FIXING AGENCIES HAVE BEEN UTILIZED
BY DEFENDANTS TO FIX THESE RATES; THAT NO ROAD CAN CHANGE JOINT THROUGH
RATES WITHOUT THE APPROVAL OF THESE PRIVATE AGENCIES; THAT THIS PRIVATE
RATE-FIXING MACHINERY WHICH IS NOT SANCTIONED BY THE INTERSTATE
COMMERCE ACT AND WHICH IS PROHIBITED BY THE ANTI-TRUST ACTS HAS PUT THE
EFFECTIVE CONTROL OF RATES TO AND FROM GEORGIA IN THE HANDS OF THE
DEFENDANTS.  THE COMPLAINT ALLEGES THAT THESE PRACTICES IN PURPOSE AND
EFFECT GIVE MANUFACTURERS, SELLERS AND OTHER SHIPPERS IN THE NORTH AN
ADVANTAGE OVER MANUFACTURERS, SHIPPERS AND OTHERS IN GEORGIA.  IT
ALLEGES THAT THE RATES SO FIXED ARE APPROXIMATELY 39 PER CENT HIGHER
THAN THE RATES AND CHARGES FOR TRANSPORTATION OF LIKE COMMODITIES FOR
LIKE DISTANCES BETWEEN POINTS IN THE NORTH.  IT ALLEGES THAT THE
DEFENDANTS WHO HAVE LINES WHOLLY OR PRINCIPALLY IN THE SOUTH ARE
GENERALLY DOMINATED AND COERCED BY THE DEFENDANTS WHO HAVE NORTHERN
ROADS, AND THEREFORE THAT, EVEN WHEN THE SOUTHERN DEFENDANTS DESIRE,
THEY CANNOT PUBLISH JOINT THROUGH RATES BETWEEN GEORGIA AND THE NORTH
WHEN THE NORTHERN CARRIERS REFUSE TO JOIN IN SUCH RATES. 

IT IS ALLEGED THAT THE RATES AS A RESULT OF THE CONSPIRACY ARE SO
FIXED AS 

"(A)  TO DENY TO MANY OF GEORGIA'S PRODUCTS EQUAL ACCESS WITH THOSE
OF OTHER STATES TO THE NATIONAL MARKET; 

(B)  TO LIMIT IN A GENERAL WAY THE GEORGIA ECONOMY TO STAPLE
AGRICULTURAL PRODUCTS, TO RESTRICT AND CURTAIL OPPORTUNITY IN
MANUFACTURING, SHIPPING AND COMMERCE, AND TO PREVENT THE FULL AND
COMPLETE UTILIZATION OF THE NATURAL WEALTH OF THE STATE; 

(C)  TO FRUSTRATE AND COUNTERACT THE MEASURES TAKEN BY THE STATE TO
PROMOTE A WELL-ROUNDED AGRICULTURAL PROGRAM, ENCOURAGE MANUFACTURE AND
SHIPPING, PROVIDE FULL EMPLOYMENT, AND PROMOTE THE GENERAL PROGRESS AND
WELFARE OF ITS PEOPLE; AND 

(D)  TO HOLD THE GEORGIA ECONOMY IN A STATE OF ARRESTED
DEVELOPMENT." 

THE COMPLAINT ALLEGES THAT THE DEFENDANTS ARE NOT CITIZENS OF
GEORGIA; THAT GEORGIA IS WITHOUT REMEDY IN HER OWN COURTS, AS THE
DEFENDANTS ARE OUTSIDE HER JURISDICTION; THAT SHE HAS NO ADMINISTRATIVE
REMEDY, THE INTERSTATE COMMERCE COMMISSION HAVING NO POWER TO AFFORD
RELIEF AGAINST SUCH A CONSPIRACY; THAT THE ISSUES PRESENTED CONSTITUTE
A JUSTICIABLE QUESTION. 

THE PRAYER IS FOR DAMAGES AND FOR INJUNCTIVE RELIEF. 

WE WILL RETURN LATER TO THE CAUSE OF ACTION WHICH GEORGIA SEEKS TO
ALLEGE.  IT IS SUFFICIENT AT THIS POINT TO SAY THAT FOR PURPOSES OF
THIS MOTION FOR LEAVE TO FILE WE CONSTRUE THE ALLEGATION THAT
DEFENDANTS HAVE CONSPIRED TO FIX THE RATES SO AS TO "PREFER" THE PORTS
OF OTHER STATES OVER THE PORTS OF GEORGIA AS A CHARGE THAT DEFENDANTS
HAVE CONSPIRED TO FIX RATES SO AS TO DISCRIMINATE AGAINST GEORGIA.  AND
WE CONSTRUE THE ALLEGATION THAT THE SOUTHERN DEFENDANTS ARE DOMINATED
AND COERCED BY THE NORTHERN ROADS AND CANNOT PUBLISH JOINT THROUGH
RATES WHEN THE NORTHERN ROADS REFUSE TO JOIN AS A CHARGE THAT THE
NORTHERN ROADS USE COERCION ON THE SOUTHERN ROADS IN THE FIXING OF
JOINT THROUGH RATES. 

DEFENDANTS IN THEIR RETURNS PRAY THAT THE MOTION FOR LEAVE TO FILE BE
DENIED ON THREE GROUNDS: (1) THAT THE COMPLAINT PRESENTS NO JUSTICIABLE
CONTROVERSY; (2) THAT THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION;
AND (3) THAT TWO OF THE DEFENDANTS ARE CITIZENS OF GEORGIA.  LEAVE TO
FILE SHOULD OF COURSE BE DENIED IF IT IS PLAIN THAT NO RELIEF MAY BE
GRANTED IN THE EXERCISE OF THE ORIGINAL JURISDICTION OF THIS COURT. 
SEE ALABAMA V. ARIZONA, 291 U.S. 286, 291-292; ARIZONA V. CALIFORNIA,
298 U.S. 558, 572. 

JUSTICIABLE CONTROVERSY.  IT IS SAID THAT THE BILL DOES NOT SET FORTH
A JUSTICIABLE CONTROVERSY WITHIN THE RULE OF MASSACHUSETTS V. MELLON,
262 U.S. 447, AND FLORIDA V. MELLON, 273 U.S. 12.  WE TAKE THE OTHER
VIEW, FOR WE ARE OF THE OPINION THAT GEORGIA AS PARENS PATRIAE AND AS
PROPRIETOR OF VARIOUS INSTITUTIONS ASSERTS A CLAIM WITHIN JUDICIAL
COGNIZANCE.  THE COMPLAINT OF GEORGIA IN THOSE RESPECTS IS NOT OF A
POLITICAL OR GOVERNMENTAL CHARACTER.  THERE IS INVOLVED NO QUESTION OF
DISTRIBUTION OF POWERS BETWEEN THE STATE AND THE NATIONAL GOVERNMENT AS
IN MASSACHUSETTS V. MELLON AND IN FLORIDA V. MELLON, SUPRA.  AND, AS WE
SHALL DEVELOP MORE FULLY WHEN WE TURN TO A CONSIDERATION OF THE
ASSERTION THAT NO CAUSE OF ACTION HAS BEEN STATED, WE ARE NOT ASKED TO
RESOLVE A DISPUTE WHICH HAS BEEN WITHDRAWN FROM THE JUDICIARY OR WHICH
BY THE CHARTER OF OUR GOVERNMENT HAS BEEN REPOSED IN DEPARTMENTS OTHER
THAN THE JUDICIARY.  CF. COLEMAN V. MILLER, 307 U.S. 433, 456, 460. 
THE COMPLAINT ALLEGES A CONSPIRACY TO RESTRAIN TRADE AND COMMERCE
THROUGH THE FIXING OF RATES.  THE HISTORY OF RESTRAINTS OF TRADE MAKES
IT PLAIN THAT THESE PROBLEMS PRESENT JUDICIAL QUESTIONS WITH WHICH
COURTS HAVE LONG DEALT.  FN2 

IT IS OF COURSE TRUE THAT GEORGIA DOES NOT HAVE A RIGHT TO INVOKE THE
ORIGINAL JURISDICTION OF THE COURT MERELY BECAUSE THERE MAY BE INVOLVED
A JUDICIAL QUESTION.  IT IS NOT ENOUGH THAT A STATE IS PLAINTIFF.  THE
ORIGINAL JURISDICTION IS CONFINED TO CIVIL SUITS WHERE DAMAGE HAS BEEN
INFLICTED OR IS THREATENED, NOT TO THE ENFORCEMENT OF PENAL STATUTES OF
A STATE.  WISCONSIN V. PELICAN INS. CO., 127 U.S. 265, 297-300.  AND
THOUGH THE SUIT IS CIVIL, LEAVE TO FILE WILL BE DENIED WHERE IT APPEARS
THAT THE SUIT BROUGHT IN THE NAME OF THE STATE IS IN REALITY FOR THE
BENEFIT OF PARTICULAR INDIVIDUALS.  OKLAHOMA V. ATCHISON, T. & S.F.R.
CO., 220 U.S. 277; OKLAHOMA V. COOK, 304 U.S. 387; JONES V. BOWLES, 322
U.S. 707.  MOREOVER, MASSACHUSETTS V. MELLON AND FLORIDA V. MELLON,
SUPRA, MAKE PLAIN THAT THE UNITED STATES, NOT THE STATE, REPRESENTS THE
CITIZENS AS PARENS PATRIAE IN THEIR RELATIONS TO THE FEDERAL
GOVERNMENT. 

THE PRESENT CONTROVERSY, HOWEVER, DOES NOT FALL WITHIN ANY OF THOSE
CATEGORIES.  THIS IS A CIVIL, NOT A CRIMINAL, PROCEEDING.  NOR IS THIS
A SITUATION WHERE THE UNITED STATES RATHER THAN GEORGIA STANDS AS
PARENS PATRIAE TO THE CITIZENS OF GEORGIA.  THIS IS NOT A SUIT LIKE
THOSE IN MASSACHUSETTS V. MELLON, AND FLORIDA V. MELLON, SUPRA, WHERE A
STATE SOUGHT TO PROTECT HER CITIZENS FROM THE OPERATION OF FEDERAL
STATUTES.  HERE GEORGIA ASSERTS RIGHTS BASED ON THE ANTI-TRUST LAWS. 
THE FACT THAT THE UNITED STATES MAY BRING CRIMINAL PROSECUTIONS OR
SUITS FOR INJUNCTIONS UNDER THOSE LAWS DOES NOT MEAN THAT GEORGIA MAY
NOT MAINTAIN THE PRESENT SUIT.  AS WE HAVE SEEN, GEORGIA SUES AS A
PROPRIETOR TO REDRESS WRONGS SUFFERED BY IT AS THE OWNER OF A RAILROAD
AND AS THE OWNER AND OPERATOR OF VARIOUS PUBLIC INSTITUTIONS.  GEORGIA,
SUING FOR HER OWN INJURIES, IS A "PERSON" WITHIN THE MEANING OF SEC. 16
OF THE CLAYTON ACT; SHE IS AUTHORIZED TO MAINTAIN SUITS TO RESTRAIN
VIOLATIONS OF THE ANTI-TRUST LAWS OR TO RECOVER DAMAGES BY REASON
THEREOF.  GEORGIA V. EVANS, 316 U.S. 159.  BUT GEORGIA IS NOT CONFINED
TO SUITS DESIGNED TO PROTECT ONLY HER PROPRIETARY INTERESTS.  THE
RIGHTS WHICH GEORGIA ASSERTS, PARENS PATRIAE, ARE THOSE ARISING FROM AN
ALLEGED CONSPIRACY OF PRIVATE PERSONS WHOSE PRICE-FIXING SCHEME, IT IS
SAID, HAS INJURED THE ECONOMY OF GEORGIA.  THOSE RIGHTS ARE OF COURSE
BASED ON FEDERAL LAWS.  THE ENFORCEMENT OF THE CRIMINAL SANCTIONS OF
THESE ACTS HAS BEEN ENTRUSTED EXCLUSIVELY TO THE FEDERAL GOVERNMENT. 
SEE GEORGIA V. EVANS, SUPRA, P. 162.  BUT WHEN IT CAME TO OTHER
SANCTIONS CONGRESS FOLLOWED A DIFFERENT COURSE AND AUTHORIZED CIVIL
SUITS NOT ONLY BY THE UNITED STATES BUT BY OTHER PERSONS AS WELL.  AND
WE FIND NO INDICATION THAT, WHEN CONGRESS FASHIONED THOSE CIVIL
REMEDIES, IT RESTRICTED THE STATES TO SUITS TO PROTECT THEIR
PROPRIETARY INTERESTS.  SUITS BY A STATE, PARENS PATRIAE, HAVE LONG
BEEN RECOGNIZED.  THERE IS NO APPARENT REASON WHY THOSE SUITS SHOULD BE
EXCLUDED FROM THE PURVIEW OF THE ANTI-TRUST ACTS. 

IN DETERMINING WHETHER A STATE MAY INVOKE OUR ORIGINAL JURISDICTION
IN A DISPUTE WHICH IS JUSTICIABLE (OKLAHOMA V. COOK, SUPRA, P. 393) THE
INTERESTS OF THE STATE ARE NOT CONFINED TO THOSE WHICH ARE PROPRIETARY;
THEY EMBRACE THE SO-CALLED "QUASI-SOVEREIGN" INTERESTS WHICH IN THE
WORDS OF GEORGIA V. TENNESSEE COPPER CO., 206 U.S. 230, 237, ARE
"INDEPENDENT OF AND BEHIND THE TITLES OF ITS CITIZENS, IN ALL THE EARTH
AND AIR WITHIN ITS DOMAIN."  IN THAT CASE THIS COURT ENJOINED
MANUFACTURING COMPANIES FROM DISCHARGING NOXIOUS GAS FROM THEIR WORKS
IN TENNESSEE OVER GEORGIA'S TERRITORY.  IT WAS POINTED OUT THAT "IT IS
A FAIR AND REASONABLE DEMAND ON THE PART OF A SOVEREIGN THAT THE AIR
OVER ITS TERRITORY SHOULD NOT BE POLLUTED ON A GREAT SCALE BY
SULPHUROUS ACID GAS, THAT THE FORESTS ON ITS MOUNTAINS, BE THEY BETTER
OR WORSE, AND WHATEVER DOMESTIC DESTRUCTION THEY HAVE SUFFERED, SHOULD
NOT BE FURTHER DESTROYED OR THREATENED BY THE ACT OF PERSONS BEYOND ITS
CONTROL, THAT THE CROPS AND ORCHARDS ON ITS HILLS SHOULD NOT BE
ENDANGERED FROM THE SAME SOURCE."  206 U.S. P. 238.  THAT CASE FOLLOWED
MISSOURI V. ILLINOIS, 180 U.S. 208, WHERE MISSOURI WAS GRANTED LEAVE TO
FILE A BILL SEEKING TO ENJOIN THE DISCHARGE OF SEWAGE INTO THE
MISSISSIPPI.  FN3 THE COURT OBSERVED THAT "IF THE HEALTH AND COMFORT OF
THE INHABITANTS OF A STATE ARE THREATENED, THE STATE IS THE PROPER
PARTY TO REPRESENT AND DEFEND THEM."  180 U.S. P. 241.  AND SEE NEW
YORK V. NEW JERSEY, 256 U.S. 296, 301-302.  IN KANSAS V. COLORADO, 206
U.S. 46, KANSAS WAS ALLOWED TO SUE TO RESTRAIN THE DIVERSION OF WATER
FROM THE ARKANSAS RIVER, AN INTERSTATE STREAM.  THE COURT IN UPHOLDING
THE RIGHT OF KANSAS TO MAINTAIN THE SUIT STATED:  "IT IS NOT ACTING
DIRECTLY AND SOLELY FOR THE BENEFIT OF ANY INDIVIDUAL CITIZEN TO
PROTECT HIS RIPARIAN RIGHTS.  BEYOND ITS PROPERTY RIGHTS IT HAS AN
INTEREST AS A STATE IN THIS LARGE TRACT OF LAND BORDERING ON THE
ARKANSAS RIVER.  ITS PROSPERITY AFFECTS THE GENERAL WELFARE OF THE
STATE.  THE CONTROVERSY RISES, THEREFORE, ABOVE A MERE QUESTION OF
LOCAL PRIVATE RIGHT AND INVOLVES A MATTER OF STATE INTEREST, AND MUST
BE CONSIDERED FROM THAT STANDPOINT."  206 U.S. P. 99.  AND SEE COLORADO
V. KANSAS, 320 U.S. 383; NORTH DAKOTA V. MINNESOTA, 263 U.S. 365.  IN
PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553, PENNSYLVANIA AND OHIO WERE
ALLOWED TO MAINTAIN SUITS WHICH SOUGHT TO ENJOIN WEST VIRGINIA FROM
INTERFERING WITH THE FLOW OF NATURAL GAS FROM WEST VIRGINIA TO THE
OTHER STATES.  THE COURT SAID: 

"THE ATTITUDE OF THE COMPLAINANT STATES IS NOT THAT OF MERE
VOLUNTEERS ATTEMPTING TO VINDICATE THE FREEDOM OF INTERSTATE COMMERCE
OR TO REDRESS PURELY PRIVATE GRIEVANCES.  EACH SUES TO PROTECT A TWO
FOLD INTEREST - ONE AS THE PROPRIETOR OF VARIOUS PUBLIC INSTITUTIONS
AND SCHOOLS WHOSE SUPPLY OF GAS WILL BE LARGELY CURTAILED OR CUT OFF BY
THE THREATENED INTERFERENCE WITH THE INTERSTATE CURRENT, AND THE OTHER
AS THE REPRESENTATIVE OF THE CONSUMING PUBLIC WHOSE SUPPLY WILL BE
SIMILARLY AFFECTED.  BOTH INTERESTS ARE SUBSTANTIAL AND BOTH ARE
THREATENED WITH SERIOUS INJURY. 

"EACH STATE USES LARGE AMOUNTS OF THE GAS IN HER SEVERAL INSTITUTIONS
AND SCHOOLS,  - THE GREATER PART IN THE DISCHARGE OF DUTIES WHICH ARE
RELATIVELY IMPERATIVE.  A BREAK OR CESSATION IN THE SUPPLY WILL
EMBARRASS HER GREATLY IN THE DISCHARGE OF THOSE DUTIES AND EXPOSE
THOUSANDS OF DEPENDENTS AND SCHOOL CHILDREN TO SERIOUS DISCOMFORT, IF
NOT MORE.  TO SUBSTITUTE ANOTHER FORM OF FUEL WILL INVOLVE VERY LARGE
PUBLIC EXPENDITURES. 

"THE PRIVATE CONSUMERS IN EACH STATE NOT ONLY INCLUDE MOST OF THE
INHABITANTS OF MANY URBAN COMMUNITIES BUT CONSTITUTE A SUBSTANTIAL
PORTION OF THE STATE'S POPULATION.  THEIR HEALTH, COMFORT AND WELFARE
ARE SERIOUSLY JEOPARDIZED BY THE THREATENED WITHDRAWAL OF THE GAS FROM
THE INTERSTATE STREAM.  THIS IS A MATTER OF GRAVE PUBLIC CONCERN IN
WHICH THE STATE, AS THE REPRESENTATIVE OF THE PUBLIC, HAS AN INTEREST
APART FROM THAT OF THE INDIVIDUALS AFFECTED.  IT IS NOT MERELY A REMOTE
OR ETHICAL INTEREST BUT ONE WHICH IS IMMEDIATE AND RECOGNIZED BY LAW." 
262 U.S. PP. 591-592.    IT SEEMS TO US CLEAR THAT UNDER THE AUTHORITY
OF THESE CASES GEORGIA MAY MAINTAIN THIS SUIT AS PARENS PATRIAE ACTING
ON BEHALF OF HER CITIZENS THOUGH HERE, AS IN GEORGIA V. TENNESSEE
COPPER CO., SUPRA, P. 237, WE TREAT THE INJURY TO THE STATE AS
PROPRIETOR MERELY AS A "MAKEWEIGHT."  THE ORIGINAL JURISDICTION OF THIS
COURT IS ONE OF THE MIGHTY INSTRUMENTS WHICH THE FRAMERS OF THE
CONSTITUTION PROVIDED SO THAT ADEQUATE MACHINERY MIGHT BE AVAILABLE FOR
THE PEACEFUL SETTLEMENT OF DISPUTES BETWEEN STATES AND BETWEEN A STATE
AND CITIZENS OF ANOTHER STATE.  SEE MISSOURI V. ILLINOIS, SUPRA, PP.
219-224; VIRGINIA V. WEST VIRGINIA, 246 U.S. 565, 599.  TRADE BARRIERS,
RECRIMINATIONS, INTENSE COMMERCIAL RIVALRIES HAD PLAGUED THE COLONIES. 
FN4  THE TRADITIONAL METHODS AVAILABLE TO A SOVEREIGN FOR THE
SETTLEMENT OF SUCH DISPUTES WERE DIPLOMACY AND WAR.  SUIT IN THIS COURT
WAS PROVIDED AS AN ALTERNATIVE.  MISSOURI V. ILLINOIS, SUPRA, P. 241;
GEORGIA V. TENNESSEE COPPER CO., SUPRA, P. 237. 

IF THE ALLEGATIONS OF THE BILL ARE TAKEN AS TRUE, THE ECONOMY OF
GEORGIA AND THE WELFARE OF HER CITIZENS HAVE SERIOUSLY SUFFERED AS THE
RESULT OF THIS ALLEGED CONSPIRACY.  DISCRIMINATORY RATES ARE BUT ONE
FORM OF TRADE BARRIERS.  THEY MAY CAUSE A BLIGHT NO LESS SERIOUS THAN
THE SPREAD OF NOXIOUS GAS OVER THE LAND OR THE DEPOSIT OF SEWAGE IN THE
STREAMS.  THEY MAY AFFECT THE PROSPERITY AND WELFARE OF A STATE AS
PROFOUNDLY AS ANY DIVERSION OF WATERS FROM THE RIVERS.  THEY MAY
STIFLE, IMPEDE, OR CRIPPLE OLD INDUSTRIES AND PREVENT THE ESTABLISHMENT
OF NEW ONES.  THEY MAY ARREST THE DEVELOPMENT OF A STATE OR PUT IT AT A
DECIDED DISADVANTAGE IN COMPETITIVE MARKETS.  SUCH A CHARGE AT LEAST
EQUALS IN GRAVITY THE ONE WHICH PENNSYLVANIA AND OHIO HAD WITH WEST
VIRGINIA OVER THE CURTAILMENT OF THE FLOW OF NATURAL GAS FROM THE WEST
VIRGINIA FIELDS.  THERE ARE SUBSTITUTE FUELS TO WHICH THE ECONOMY OF A
STATE MIGHT BE ADJUSTED.  BUT DISCRIMINATORY RATES FASTENED ON A REGION
HAVE A MORE PERMANENT AND INSIDIOUS QUALITY.  GEORGIA AS A
REPRESENTATIVE OF THE PUBLIC IS COMPLAINING OF A WRONG WHICH, IF
PROVEN, LIMITS THE OPPORTUNITIES OF HER PEOPLE, SHACKLES HER
INDUSTRIES, RETARDS HER DEVELOPMENT, AND RELEGATES HER TO AN INFERIOR
ECONOMIC POSITION AMONG HER SISTER STATES.  THESE ARE MATTERS OF GRAVE
PUBLIC CONCERN IN WHICH GEORGIA HAS AN INTEREST APART FROM THAT OF
PARTICULAR INDIVIDUALS WHO MAY BE AFFECTED.  GEORGIA'S INTEREST IS NOT
REMOTE; IT IS IMMEDIATE.  IF WE DENIED GEORGIA AS PARENS PATRIAE THE
RIGHT TO INVOKE THE ORIGINAL JURISDICTION OF THE COURT IN A MATTER OF
THAT GRAVITY, WE WOULD WHITTLE THE CONCEPT OF JUSTICIABILITY DOWN TO
THE STATURE OF MINOR OR CONVENTIONAL CONTROVERSIES.  THERE IS NO
WARRANT FOR SUCH A RESTRICTION. 

OKLAHOMA V. ATCHISON, T. & S.F.R. CO., SUPRA, IS NOT OPPOSED TO THIS
VIEW.  IN THAT CASE, THE DEFENDANT RAILROAD COMPANY HAD OBTAINED A
GRANT FROM CONGRESS TO LOCATE AND MAINTAIN A RAILWAY LINE THROUGH THE
INDIAN TERRITORY OUT OF WHICH THE STATE OF OKLAHOMA WAS LATER FORMED. 
THE FEDERAL ACT PROVIDED CERTAIN MAXIMUM TRANSPORTATION RATES WHICH THE
COMPANY MIGHT CHARGE.  OKLAHOMA SUED TO CANCEL THE GRANT, TO HAVE THE
PROPERTY GRANTED DECREED TO BE IN THE STATE OF OKLAHOMA AS CESTUI QUE
TRUST, TO ENJOIN THE DEFENDANT FROM OPERATING A RAILROAD IN THE STATE,
AND TO ENJOIN PENDENTE LITE THE EXACTION OF GREATER RATES THAN THE
MAXIMUM RATES SPECIFIED.  THE COURT CONSTRUED THE ACT OF CONGRESS AS
SUBJECTING THE RATES TO FEDERAL CONTROL UNTIL THE TERRITORY BECAME A
PART OF A STATE, AT WHICH TIME THE RATES BECAME SUBJECT TO STATE
CONTROL.  THE COURT HELD THAT OUR ORIGINAL JURISDICTION COULD NOT BE
INVOKED BY A STATE MERELY BECAUSE ITS CITIZENS WERE INJURED.  WE ADHERE
TO THAT DECISION.  IT DOES NOT CONTROL THE PRESENT ONE.  THIS IS NO
ATTEMPT TO UTILIZE OUR ORIGINAL JURISDICTION IN SUBSTITUTION FOR THE
ESTABLISHED METHODS OF ENFORCING LOCAL LAW.  THIS IS NOT A SUIT IN
WHICH A STATE IS A MERE NOMINAL PLAINTIFF, INDIVIDUAL SHIPPERS BEING
THE REAL COMPLAINANTS.  THIS IS A SUIT IN WHICH GEORGIA ASSERTS CLAIMS
ARISING OUT OF FEDERAL LAWS AND THE GRAVAMEN OF WHICH RUNS FAR BEYOND
THE CLAIM OF DAMAGE TO INDIVIDUAL SHIPPERS. 

SINCE THE CLAIM WHICH GEORGIA ASSERTS AS PARENS PATRIAE AS WELL AS
PROPRIETOR MEETS THE STANDARDS OF JUSTICIABILITY AND SINCE GEORGIA IS A
"PERSON" ENTITLED TO ENFORCE THE CIVIL SANCTIONS OF THE ANTI-TRUST
LAWS, THE REASONS WHICH HAVE BEEN ADVANCED FOR DENYING GEORGIA THE
OPPORTUNITY TO PRESENT HER CAUSE OF ACTION TO THIS COURT FAIL. 

CAUSE OF ACTION.  IT IS ARGUED THAT THE COMPLAINT FAILS TO STATE A
CAUSE OF ACTION.  (1) IT IS POINTED OUT THAT UNDER THE PRINCIPLE OF THE
ABILENE CASE NO ACTION FOR DAMAGES ON THE BASIS OF UNJUST,
UNREASONABLE, OR DISCRIMINATORY RAILROAD RATES MAY BE MAINTAINED
WITHOUT PRIOR RESORT TO THE INTERSTATE COMMERCE COMMISSION.  TEXAS &
PACIFIC R. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426; GREAT NORTHERN
R. CO. V. MERCHANTS ELEVATOR CO., 259 U.S. 285.  (2) IT IS SAID THAT AN
INJUNCTION MAY NOT BE GRANTED TO RESTRAIN RATES ALLEGED TO BE
UNREASONABLE OR DISCRIMINATORY WHERE THERE HAS BEEN NO PRIOR
DETERMINATION OF THE MATTER BY THE COMMISSION AND THAT THE ONLY WAY A
STATE OR ANY OTHER PERSON MAY OBTAIN A JUDICIAL DETERMINATION OF THE
LEGALITY OF A RATE IS BY REVIEW OF THE COMMISSION'S ORDER.  BALTIMORE &
OHIO R. CO. V. PITCAIRN COAL CO., 215 U.S. 481; NORTH DAKOTA V. CHICAGO
& N.W.R. CO., 257 U.S. 485; TEXAS V. INTERSTATE COMMERCE COMMISSION,
258 U.S. 158.  (3) IT IS SAID THAT DAMAGES UNDER THE ANTI-TRUST LAWS
MAY NOT BE RECOVERED AGAINST RAILROAD CARRIERS THOUGH THE RATES
APPROVED BY THE COMMISSION WERE FIXED PURSUANT TO A CONSPIRACY.  KEOGH
V. CHICAGO & N.W.R. CO., 260 U.S. 156.  (4) IT IS SAID THAT PERSONS
OTHER THAN THE UNITED STATES ARE BARRED FROM ENJOINING VIOLATIONS OF
THE ANTI-TRUST LAWS BY VIRTUE OF SEC. 16 OF THE CLAYTON ACT.  38 STAT.
737, 15 U.S.C. SEC. 26.  SEE CENTRAL TRANSFER CO. V. TERMINAL R. ASSN.,
288 U.S. 469, 473-475; TERMINAL WAREHOUSE CO. V. PENNSYLVANIA R. CO.,
297 U.S. 500, 513.  (5) IT IS ARGUED THAT GEORGIA CANNOT MAINTAIN AN
ACTION ON COMMON LAW PRINCIPLES BASED UPON A CONSPIRACY AMONG CARRIERS
TO FIX RATES. 

WE THINK IT IS CLEAR FROM THE KEOGH CASE ALONE THAT GEORGIA MAY NOT
RECOVER DAMAGES EVEN IF THE CONSPIRACY ALLEGED WERE SHOWN TO EXIST. 
THAT WAS A SUIT FOR DAMAGES UNDER SEC. 7 OF THE SHERMAN ACT.  26 STAT.
210.  THE COURT RECOGNIZED THAT ALTHOUGH THE RATES FIXED HAD BEEN FOUND
REASONABLE AND NON-DISCRIMINATORY BY THE COMMISSION, THE UNITED STATES
WAS NOT BARRED FROM ENFORCING THE REMEDIES OF THE SHERMAN ACT.  260
U.S. PP. 161-162.  IT HELD, HOWEVER, THAT FOR PURPOSES OF A SUIT FOR
DAMAGES A RATE WAS NOT NECESSARILY ILLEGAL BECAUSE IT WAS THE RESULT OF
A CONSPIRACY IN RESTRAINT OF TRADE.  THE LEGAL RIGHTS OF A SHIPPER
AGAINST A CARRIER IN RESPECT TO A RATE ARE TO BE MEASURED BY THE
PUBLISHED TARIFF.  THAT RATE UNTIL SUSPENDED OR SET ASIDE WAS FOR ALL
PURPOSES THE LEGAL RATE AS BETWEEN SHIPPER AND CARRIER AND MAY NOT BE
VARIED OR ENLARGED EITHER BY THE CONTRACT OR TORT OF THE CARRIER.  AND
IT ADDED:  "THIS STRINGENT RULE PREVAILS, BECAUSE OTHERWISE THE
PARAMOUNT PURPOSE OF CONGRESS - PREVENTION OF UNJUST DISCRIMINATION -
MIGHT BE DEFEATED.  IF A SHIPPER COULD RECOVER UNDER SEC. 7 OF THE ANTI
TRUST ACT FOR DAMAGES RESULTING FROM THE EXACTION OF A RATE HIGHER THAN
THAT WHICH WOULD OTHERWISE HAVE PREVAILED, THE AMOUNT RECOVERED MIGHT,
LIKE A REBATE, OPERATE TO GIVE HIM A PREFERENCE OVER HIS TRADE
COMPETITORS."  260 U.S. P. 163.  THE REASONING AND PRECEDENT OF THAT
CASE APPLY WITH FULL FORCE HERE.  BUT IT DOES NOT DISPOSE OF THE MAIN
PRAYER OF THE BILL, STRESSED AT THE ARGUMENT, WHICH ASKS FOR RELIEF BY
WAY OF INJUNCTION. 

IT IS CLEAR THAT A SUIT COULD NOT BE MAINTAINED HERE TO REVIEW,
ANNUL, OR SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 
CONGRESS HAS PRESCRIBED THE METHOD FOR OBTAINING THAT RELIEF.  IT IS
EXCLUSIVE OF ALL OTHER REMEDIES, INCLUDING A SUIT BY A STATE IN THIS
COURT.  NORTH DAKOTA V. CHICAGO & N.W.R. CO., SUPRA; TEXAS V.
INTERSTATE COMMERCE COMMISSION, SUPRA.  THE SAME RESULT OBTAINS WHERE
THE BASIS FOR ATTACKING AN ORDER OF THE COMMISSION IS A VIOLATION OF
THE ANTI-TRUST LAWS, SAVE IN THE CASE WHERE THE UNITED STATES IS THE
COMPLAINANT.  FOR SEC. 16 OF THE CLAYTON ACT WHICH GIVES RELIEF BY WAY
OF INJUNCTION AGAINST THREATENED LOSS OR DAMAGE THROUGH VIOLATION OF
THE ANTI-TRUST LAWS PROVIDES THAT NO ONE EXCEPT THE UNITED STATES SHALL
BE ENTITLED TO BRING SUCH SUITS AGAINST COMMON CARRIERS SUBJECT TO THE
INTERSTATE COMMERCE ACT "IN RESPECT OF ANY MATTER SUBJECT TO THE
REGULATION, SUPERVISION, OR OTHER JURISDICTION" OF THE COMMISSION. 
CENTRAL TRANSFER CO. V. TERMINAL R. ASSN., SUPRA, INDICATES THAT IF
GEORGIA IN THE PRESENT PROCEEDING SOUGHT TO SET ASIDE THE RATES OF THE
DEFENDANTS, LEAVE TO FILE WOULD HAVE TO BE DENIED.  IN THAT CASE THE
COMMISSION HAD APPROVED CERTAIN RATE SCHEDULES WHICH ENTAILED
ABANDONING CERTAIN "OFF-TRACK" STATIONS AND THE EMPLOYMENT BY THE
CARRIERS OF A SINGLE TRANSFER COMPANY TO DO INTERSTATION HAULING.  THE
CARRIERS PROCEEDED TO MAKE AN AGREEMENT TO CARRY OUT THE PROGRAM WHICH
HAD BEEN SUBMITTED TO THE COMMISSION AND WHICH WAS LATER APPROVED BY
IT.  SUIT WAS BROUGHT BY A PRIVATE COMPANY TO ENJOIN PERFORMANCE OF THE
CONTRACT ON THE GROUND THAT IT CREATED A MONOPOLY IN VIOLATION OF THE
ANTI-TRUST LAWS.  THE COURT HELD THAT THE SUIT WAS BARRED BY SEC. 16 OF
THE CLAYTON ACT.  THE COURT POINTED OUT THAT THE PURPOSE OF SEC. 16 WAS
"TO PRECLUDE ANY INTERFERENCE BY INJUNCTION WITH ANY BUSINESS OR
TRANSACTIONS OF INTERSTATE CARRIERS OF SUFFICIENT PUBLIC SIGNIFICANCE
AND IMPORTANCE TO BE WITHIN THE JURISDICTION OF THE COMMISSION, EXCEPT
WHEN THE SUIT IS BROUGHT BY THE GOVERNMENT ITSELF."  288 U.S. P. 475. 
IT ADDED (P. 476):  "TRUE, A CONTRACT MAY PRECEDE AND HAVE EXISTENCE
APART FROM THE SEVERAL ACTS REQUIRED TO PERFORM IT, AND CONCEIVABLY ALL
OF THOSE ACTS MIGHT BE DONE IF NO CONTRACT OR AGREEMENT TO PERFORM THEM
HAD EVER EXISTED.  BUT WHEN THEY ARE DONE IN PERFORMANCE OF AN
AGREEMENT, THERE IS NO WAY BY WHICH THE AGREEMENT ITSELF CAN BE
ASSAILED BY INJUNCTION EXCEPT BY RESTRAINING ACTS DONE IN PERFORMANCE
OF IT.  THAT, IN THIS CASE, THE STATUTE FORBIDS, NOT BECAUSE THE
CONTRACT IS WITHIN THE JURISDICTION OF THE INTERSTATE COMMERCE
COMMISSION, BUT BECAUSE THE ACTS DONE IN PERFORMANCE OF IT, WHICH MUST
NECESSARILY BE ENJOINED IF ANY RELIEF IS GIVEN, ARE MATTERS SUBJECT TO
THE JURISDICTION OF THE COMMISSION."  THE POLICY BEHIND THESE
RESTRICTIONS PLACED ON SUITORS BY THE CONGRESS WAS APTLY STATED IN
TERMINAL WAREHOUSE CO. V. PENNSYLVANIA R. CO., SUPRA, P. 513, AS
FOLLOWS:  "IF A SUFFERER FROM THE DISCRIMINATORY ACTS OF CARRIERS BY
RAIL OR BY WATER MAY SUE FOR AN INJUNCTION UNDER THE CLAYTON ACT
WITHOUT RESORT IN THE FIRST INSTANCE TO THE REGULATORY COMMISSION, THE
UNITY OF THE SYSTEM OF REGULATION BREAKS DOWN BEYOND REPAIR."  WE
ADHERE TO THESE DECISIONS.  BUT WE DO NOT BELIEVE THEY OR THE
PRINCIPLES FOR WHICH THEY STAND ARE A BARRIER TO THE MAINTENANCE OF
THIS SUIT BY GEORGIA. 

THE RELIEF WHICH GEORGIA SEEKS IS NOT A MATTER SUBJECT TO THE
JURISDICTION OF THE COMMISSION.  GEORGIA IN THIS PROCEEDING IS NOT
SEEKING AN INJUNCTION AGAINST THE CONTINUANCE OF ANY TARIFF; NOR DOES
SHE SEEK TO HAVE ANY TARIFF PROVISION CANCELLED.  SHE MERELY ASKS THAT
THE ALLEGED RATE-FIXING COMBINATION AND CONSPIRACY AMONG THE DEFENDANT
CARRIERS BE ENJOINED.  AS WE SHALL SEE, THAT IS A MATTER OVER WHICH THE
COMMISSION HAS NO JURISDICTION.  AND AN INJUNCTION DESIGNED TO PUT AN
END TO THE CONSPIRACY NEED NOT ENJOIN OPERATION UNDER ESTABLISHED RATES
AS WOULD HAVE BEEN THE CASE HAD AN INJUNCTION ISSUED IN CENTRAL
TRANSFER CO. V. TERMINAL R. ASSN., SUPRA. 

THESE CARRIERS ARE SUBJECT TO THE ANTI-TRUST LAWS.  UNITED STATES V.
SOUTHERN PACIFIC CO., 259 U.S. 214.  CONSPIRACIES AMONG CARRIERS TO FIX
RATES WERE INCLUDED IN THE BROAD SWEEP OF THE SHERMAN ACT.  UNITED
STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290; UNITED STATES V.
JOINT TRAFFIC ASSN., 171 U.S. 505.  CONGRESS BY SEC. 11 OF THE CLAYTON
ACT ENTRUSTED THE COMMISSION WITH AUTHORITY TO ENFORCE COMPLIANCE WITH
CERTAIN OF ITS PROVISIONS "WHERE APPLICABLE TO COMMON CARRIERS" UNDER
THE COMMISSION'S JURISDICTION.  FN5  IT HAS THE POWER TO LIFT THE BAN
OF THE ANTI-TRUST LAWS IN FAVOR OF CARRIERS WHO MERGE OR CONSOLIDATE
(NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12, 25
26) AND THE DUTY TO GIVE WEIGHT TO THE ANTI-TRUST POLICY OF THE NATION
BEFORE APPROVING MERGERS AND CONSOLIDATIONS.  MCLEAN TRUCKING CO. V.
UNITED STATES, 321 U.S. 67.  BUT CONGRESS HAS NOT GIVEN THE COMMISSION
COMPARABLE AUTHORITY TO REMOVE RATE-FIXING COMBINATIONS FROM THE
PROHIBITIONS CONTAINED IN THE ANTI-TRUST LAWS.  IT HAS NOT PLACED THESE
COMBINATIONS UNDER THE CONTROL AND SUPERVISION OF THE COMMISSION.  NOR
HAS IT EMPOWERED THE COMMISSION TO PROCEED AGAINST SUCH COMBINATIONS
AND THROUGH CEASE AND DESIST ORDERS OR OTHERWISE TO PUT AN END TO THEIR
ACTIVITIES.  REGULATED INDUSTRIES ARE NOT PER SE EXEMPT FROM THE
SHERMAN ACT.  UNITED STATES V. BORDEN CO., 308 U.S. 188, 198 ET SEQ. IT
IS TRUE THAT THE COMMISSION'S REGULATION OF CARRIERS HAS GREATLY
EXPANDED SINCE THE SHERMAN ACT.  SEE ARIZONA GROCERY CO. V. ATCHISON,
T. & S.F.R. CO., 284 U.S. 370, 385-386.  BUT IT IS ELEMENTARY THAT
REPEALS BY IMPLICATION ARE NOT FAVORED.  ONLY A CLEAR REPUGNANCY
BETWEEN THE OLD LAW AND THE NEW RESULTS IN THE FORMER GIVING WAY AND
THEN ONLY PRO TANTO TO THE EXTENT OF THE REPUGNANCY.  UNITED STATES V.
BORDEN, SUPRA, PP. 198, 199.  NONE OF THE POWERS ACQUIRED BY THE
COMMISSION SINCE THE ENACTMENT OF THE SHERMAN ACT RELATES TO THE
REGULATION OF RATE-FIXING COMBINATIONS.  TWICE CONGRESS HAS BEEN
TENDERED PROPOSALS TO LEGALIZE RATE-FIXING COMBINATIONS.  FN6  BUT IT
HAS NOT ADOPTED THEM.  IN VIEW OF THIS HISTORY WE CAN ONLY CONCLUDE
THAT THEY HAVE NO IMMUNITY FROM THE ANTI-TRUST LAWS.    IT IS POINTED
OUT, HOWEVER, THAT UNDER SEC. 1(4) OF THE INTERSTATE COMMERCE ACT (54
STAT. 900, 49 U.S.C. SEC. 1(4)) IT IS "THE DUTY OF EVERY COMMON CARRIER
SUBJECT TO THIS CHAPTER TO PROVIDE AND FURNISH TRANSPORTATION UPON
REASONABLE REQUEST THEREFOR, AND TO ESTABLISH REASONABLE THROUGH ROUTES
WITH OTHER SUCH CARRIERS, AND JUST AND REASONABLE RATES, FARES,
CHARGES, AND CLASSIFICATIONS APPLICABLE THERETO."  AND IT IS NOTED THAT
AGREEMENT AMONG CARRIERS IS PROVIDED IN THE ESTABLISHMENT OF JOINT
RATES.  SEC. 6.  THAT IS TRUE.  BUT IT WOULD BE A PERVERSION OF THOSE
CHARACTER ALLEGED TO EXIST HERE.  THE COLLABORATION CONTEMPLATED IN THE
FIXING OF THROUGH AND JOINT RATES IS OF A RESTRICTIVE NATURE.  WE DO
NOT STOP AT THIS STAGE OF THE PROCEEDINGS TO DELINEATE THE LEGITIMATE
AREA IN WHICH THAT COLLABORATION MAY OPERATE.  IN THE KEOGH CASE (260
U.S. 156) THE SUIT WAS ONE FOR DAMAGES UNDER THE SHERMAN ACT.  THE
CHARGE WAS THAT THE DEFENDANT CARRIERS HAD FORMED A RATE BUREAU OR
COMMITTEE TO SECURE AGREEMENT IN RESPECT TO FREIGHT RATES AMONG THE
CONSTITUENT RAILROAD COMPANIES WHICH WOULD OTHERWISE BE COMPETING
CARRIERS.  AS WE HAVE SEEN, THE COURT HELD THAT DAMAGES COULD NOT BE
RECOVERED.  BUT MR. JUSTICE BRANDEIS SPEAKING FOR A UNANIMOUS COURT
STATED THAT A CONSPIRACY TO FIX RATES MIGHT BE ILLEGAL THOUGH THE RATES
FIXED WERE REASONABLE AND NON-DISCRIMINATORY.  HE SAID (260 U.S. PP.
161-162):  "ALL THE RATES FIXED WERE REASONABLE AND NON
DISCRIMINATORY.  THAT WAS SETTLED BY THE PROCEEDINGS BEFORE THE
COMMISSION....  BUT UNDER THE ANTI-TRUST ACT, A COMBINATION OF CARRIERS
TO FIX REASONABLE AND NON-DISCRIMINATORY RATES MAY BE ILLEGAL; AND IF
SO, THE GOVERNMENT MAY HAVE REDRESS BY CRIMINAL PROCEEDINGS UNDER SEC.
3, BY INJUNCTION UNDER SEC. 4, AND BY FORFEITURE UNDER SEC. 6.  THAT
WAS SETTLED BY UNITED STATES V. TRANS-MISSOURI FREIGHT ASSOCIATION, 166
U.S. 290, AND UNITED STATES V. JOINT TRAFFIC ASSOCIATION, 171 U.S.
505.  THE FACT THAT THESE RATES HAD BEEN APPROVED BY THE COMMISSION
WOULD NOT, IT SEEMS, BAR PROCEEDINGS BY THE GOVERNMENT."  THE TRANS
MISSOURI FREIGHT ASSN. CASE AND THE JOINT TRAFFIC ASSN. CASE HAVE BEEN
FOLLOWED IN OTHER FIELDS.  UNITED STATES V. SOCONY-VACUUM OIL CO., 310
U.S. 150, AND THE CASES WHICH PRECEDED IT INDICATE THE EXTENT OF THE
BAN ON PRICE-FIXING UNDER THE SHERMAN ACT.  BUT WE NEED NOT AT THIS
JUNCTURE DETERMINE THE FULL EXTENT TO WHICH THAT PRINCIPLE IS
APPLICABLE IN THE FIXING OF JOINT THROUGH RATES.  IT IS SUFFICIENT HERE
TO NOTE THAT WE FIND NO WARRANT IN THE INTERSTATE COMMERCE ACT AND THE
SHERMAN ACT FOR SAYING THAT THE AUTHORITY TO FIX JOINT THROUGH RATES
CLOTHES WITH LEGALITY A CONSPIRACY TO DISCRIMINATE AGAINST A STATE OR A
REGION, TO USE COERCION IN THE FIXING OF RATES, OR TO PUT IN THE HANDS
OF A COMBINATION OF CARRIERS A VETO POWER OVER RATES PROPOSED BY A
SINGLE CARRIER.  THE TYPE OF REGULATION WHICH CONGRESS CHOSE DID NOT
ELIMINATE THE EMPHASIS ON COMPETITION AND INDIVIDUAL FREEDOM OF ACTION
IN RATE-MAKING.  1 SHARFMAN, THE INTERSTATE COMMERCE COMMISSION (1931),
P. 81.  THE ACT WAS DESIGNED TO PRESERVE PRIVATE INITIATIVE IN RATE
MAKING AS INDICATED BY THE DUTY OF EACH COMMON CARRIER TO INITIATE ITS
OWN RATES.  ARIZONA GROCERY CO. V. ATCHISON, T. & S.F.R. CO., SUPRA.
IF A COMBINATION OF THE CHARACTER DESCRIBED IN THIS BILL OF COMPLAINT
IS IMMUNE FROM SUIT, THAT FREEDOM OF ACTION DISAPPEARS.  THE COERCIVE
AND COLLUSIVE INFLUENCES OF GROUP ACTION TAKE ITS PLACE.  FN7 A
MONOPOLY POWER IS CREATED UNDER THE AEGIS OF PRIVATE PARTIES WITHOUT
CONGRESSIONAL SANCTION AND WITHOUT GOVERNMENTAL SUPERVISION OR
CONTROL. 

THESE CONSIDERATIONS EMPHASIZE THE IRRELEVANCY TO THE PRESENT PROBLEM
OF THE FACT THAT THE COMMISSION HAS AUTHORITY TO REMOVE DISCRIMINATORY
RATES OF THE CHARACTER ALLEGED TO EXIST HERE.  UNDER SEC. 3(1) OF THE
ACT RATES ARE DECLARED UNLAWFUL WHICH GIVE "ANY UNDUE OR UNREASONABLE
PREFERENCE OR ADVANTAGE" TO ANY PORT, REGION, DISTRICT, TERRITORY AND
THE LIKE.  AND THE COMMISSION HAS TAKEN SOME ACTION IN THAT REGARD. 
SEE ALABAMA V. NEW YORK C.R. CO., 235 I.C.C. 255; 237 I.C.C. 515; LIVE
STOCK TO AND FROM THE SOUTH, 253 I.C.C. 241.  THE PRESENT BILL DOES NOT
SEEK TO HAVE THE COURT ACT IN THE PLACE OF THE COMMISSION.  IT SEEKS TO
REMOVE FROM THE FIELD OF RATE-MAKING THE INFLUENCES OF A COMBINATION
WHICH EXCEED THE LIMITS OF THE COLLABORATION AUTHORIZED FOR THE FIXING
OF JOINT THROUGH RATES.  IT SEEKS TO PUT AN END TO DISCRIMINATORY AND
COERCIVE PRACTICES.  THE AIM IS TO MAKE IT POSSIBLE FOR INDIVIDUAL
CARRIERS TO PERFORM THEIR DUTY UNDER THE ACT, SO THAT WHATEVER TARIFFS
MAY BE CONTINUED IN EFFECT OR SUPERSEDED BY NEW ONES MAY BE TARIFFS
WHICH ARE FREE FROM THE RESTRICTIVE, DISCRIMINATORY, AND COERCIVE
INFLUENCES OF THE COMBINATION.  THAT IS NOT TO UNDERCUT OR IMPAIR THE
PRIMARY JURISDICTION OF THE COMMISSION OVER RATES.  IT IS TO FREE THE
RATE-MAKING FUNCTION OF THE INFLUENCES OF A CONSPIRACY OVER WHICH THE
COMMISSION HAS NO AUTHORITY BUT WHICH IF PROVEN TO EXIST CAN ONLY
HINDER THE COMMISSION IN THE TASKS WITH WHICH IT IS CONFRONTED. 

WHAT WE HAVE SAID DISPOSES FOR THE MOST PART OF THE ARGUMENT THAT
RECOGNIZED PRINCIPLES OF EQUITY PREVENT US FROM GRANTING THE RELIEF
WHICH IS ASKED.  SEC. 16 OF THE CLAYTON ACT PROVIDES FOR RELIEF BY
INJUNCTION "WHEN AND UNDER THE SAME CONDITIONS AND PRINCIPLES AS
INJUNCTIVE RELIEF AGAINST THREATENED CONDUCT THAT WILL CAUSE LOSS OR
DAMAGE IS GRANTED BY COURTS OF EQUITY."  THOSE REQUIREMENTS ARE
SUFFICIENTLY SATISFIED TO JUSTIFY A FILING OF THIS BILL.  IT MUST BE
REMEMBERED THAT THIS IS A SUIT TO DISSOLVE AN ILLEGAL COMBINATION OR TO
CONFINE IT TO THE LEGITIMATE AREA OF COLLABORATION.  THAT RELIEF CANNOT
BE OBTAINED FROM THE COMMISSION FOR IT HAS NO SUPERVISORY AUTHORITY
OVER THE COMBINATION.  IT IS TRUE THAT THE INJURY TO GEORGIA IS NOT IN
THE EXISTENCE OF THE COMBINATION PER SE BUT IN THE RATES WHICH ARE
FIXED BY THE COMBINATION.  THE FACT THAT THE RATES WHICH HAVE BEEN
FIXED MAY OR MAY NOT BE HELD UNLAWFUL BY THE COMMISSION IS IMMATERIAL
TO THE ISSUE BEFORE US.  THE KEOGH CASE INDICATES THAT EVEN A
COMBINATION TO FIX REASONABLE AND NON-DISCRIMINATORY RATES MAY BE
ILLEGAL.  260 U.S. P. 161.  THE REASON IS THAT THE INTERSTATE COMMERCE
ACT DOES NOT PROVIDE REMEDIES FOR THE CORRECTION OF ALL THE ABUSES OF
RATE-MAKING WHICH MIGHT CONSTITUTE VIOLATIONS OF THE ANTI-TRUST LAWS. 
THUS A "ZONE OF REASONABLENESS EXISTS BETWEEN MAXIMA AND MINIMA WITHIN
WHICH A CARRIER IS ORDINARILY FREE TO ADJUST ITS CHARGES FOR ITSELF." 
UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294 U.S. 499, 506. 
WITHIN THAT ZONE THE COMMISSION LACKS POWER TO GRANT RELIEF EVEN THOUGH
THE RATES ARE RAISED TO THE MAXIMA BY A CONSPIRACY AMONG CARRIERS WHO
EMPLOY UNLAWFUL TACTICS.  IF THE RATE-MAKING FUNCTION IS FREED FROM THE
UNLAWFUL RESTRAINTS OF THE ALLEGED CONSPIRACY, THE RATES OF THE FUTURE
WILL THEN BE FIXED IN THE MANNER ENVISIONED BY CONGRESS WHEN IT ENACTED
THIS LEGISLATION.  DAMAGE MUST BE PRESUMED TO FLOW FROM A CONSPIRACY TO
MANIPULATE RATES WITHIN THAT ZONE. 

MOREOVER, THE RELIEF SOUGHT FROM THIS COURT IS NOT AN UPROOTING OF
ESTABLISHED RATES.  WE ARE NOT ASKED FOR A DECREE WHICH WOULD BE AN
IDLE GESTURE.  WE ARE NOT ASKED TO ENJOIN WHAT THE COMMISSION MIGHT
LATER APPROVE OR CONDONE.  WE ARE NOT ASKED TO TRENCH ON THE DOMAIN OF
THE COMMISSION; NOR NEED ANY DECREE WHICH MAY BE ULTIMATELY ENTERED IN
THIS CAUSE HAVE THAT EFFECT.  GEORGIA ALLEGES, "NO ADMINISTRATIVE
PROCEEDING DIRECTED AGAINST A PARTICULAR SCHEDULE OF RATES WOULD AFFORD
RELIEF TO THE STATE OF GEORGIA SO LONG AS THE DEFENDANTS REMAINED FREE
TO PROMULGATE RATES BY COLLUSIVE AGREEMENT.  UNTIL THE CONSPIRACY IS
ENDED, THE CORROSION OF NEW SCHEDULES, ESTABLISHED BY THE COLLUSIVE
POWER OF THE DEFENDANT CARRIERS ACTING IN CONCERT, WOULD FRUSTRATE ANY
ACTION SOUGHT TO BE TAKEN BY ADMINISTRATIVE PROCESS TO REDRESS THE
GRIEVANCES FROM WHICH THE STATE OF GEORGIA SUFFERS."  RATE-MAKING IS A
CONTINUOUS PROCESS.  GEORGIA IS SEEKING A DECREE WHICH WILL PREVENT IN
THE FUTURE THE KIND OF HARMFUL CONDUCT WHICH HAS OCCURRED IN THE PAST. 
TAKE THE CASE OF COERCION.  IF IT IS SHOWN THAT THE ALLEGED COMBINATION
EXISTS AND USES COERCION IN THE FIXING OF JOINT THROUGH RATES, ONLY AN
INJUNCTION AIMED AT FUTURE CONDUCT OF THAT CHARACTER CAN GIVE ADEQUATE
RELIEF.  INDEED, SO LONG AS THE COLLABORATION WHICH EXISTS EXCEEDS
LAWFUL LIMITS AND CONTINUES IN OPERATION, THE ONLY EFFECTIVE REMEDY
LIES IN DISSOLVING THE COMBINATION OR IN CONFINING IT WITHIN LEGITIMATE
BOUNDARIES.  ANY DECREE WHICH IS ENTERED WOULD LOOK TO THE FUTURE AND
WOULD FREE TOMORROW'S RATE-MAKING FROM THE COERCIVE AND COLLUSIVE
INFLUENCES ALLEGED TO EXIST.  IT CANNOT OF COURSE BE DETERMINED IN
ADVANCE WHAT RATES MAY BE LAWFULLY ESTABLISHED.  BUT COERCION CAN BE
ENJOINED.  AND SO CAN A COMBINATION WHICH HAS AS ITS PURPOSE AN
INVIDIOUS DISCRIMINATION AGAINST A REGION OR LOCALITY.  DISSOLUTION OF
ILLEGAL COMBINATIONS OR A RESTRICTION OF THEIR CONDUCT TO LAWFUL
CHANNELS IS A CONVENTIONAL FORM OF RELIEF ACCORDED IN ANTI-TRUST
SUITS.  NO MORE IS ENVISAGED HERE.  IF THE ALLEGED COMBINATION IS SHOWN
TO EXIST, THE DECREE WHICH CAN BE ENTERED WILL BE NO IDLE OR FUTILE
GESTURE.  IT WILL RESTORE THAT DEGREE OF COMPETITION ENVISAGED BY
CONGRESS WHEN IT ENACTED THE INTERSTATE COMMERCE ACT.  IT WILL
ELIMINATE FROM RATE-MAKING THE COLLUSIVE PRACTICES WHICH THE ANTI-TRUST
LAWS CONDEMN AND WHICH ARE NOT SANCTIONED BY THE INTERSTATE COMMERCE
ACT.  IT WILL SUPPLY AN EFFECTIVE REMEDY WITHOUT WHICH THERE CAN BE
ONLY AN ENDLESS EFFORT TO RECTIFY THE CONTINUOUS INJURY INFLICTED BY
THE UNLAWFUL COMBINATION.  THE THREATENED INJURY IS CLEAR.  THE DAMAGE
ALLEGED IS SUFFICIENT TO SATISFY THE PRELIMINARY REQUIREMENTS OF THIS
MOTION TO FILE.  THERE IS NO ADMINISTRATIVE CONTROL OVER THE
COMBINATION.  AND NO ADEQUATE OR EFFECTIVE REMEDY OTHER THAN THIS SUIT
IS SUGGESTED WHICH GEORGIA CAN EMPLOY TO ELIMINATE FROM RATE-MAKING THE
INFLUENCES OF THE UNLAWFUL CONSPIRACY ALLEGED TO EXIST HERE. 

AS WE HAVE SAID, WE CONSTRUE THE BILL TO CHARGE A CONSPIRACY AMONG
DEFENDANTS TO USE COERCION IN THE FIXING OF RATES AND TO DISCRIMINATE
AGAINST GEORGIA IN THE RATES WHICH ARE FIXED.  WE HOLD THAT UNDER THAT
CONSTRUCTION OF THE BILL A CAUSE OF ACTION UNDER THE ANTI-TRUST LAWS IS
ALLEGED.  FN8  WE INTIMATE NO OPINION WHETHER THE BILL MIGHT BE
CONSTRUED TO CHARGE MORE THAN THAT OR WHETHER A RATEFIXING COMBINATION
WOULD BE LEGAL UNDER THE INTERSTATE COMMERCE ACT AND THE SHERMAN ACT
BUT FOR THE FEATURES OF DISCRIMINATION AND COERCION CHARGED HERE.  WE
ARE DEALING WITH THE CASE ONLY IN A PRELIMINARY MANNER.  CF. MISSOURI
V. ILLINOIS, 200 U.S. 496, 517, 518.  THE COMPLAINT MAY HAVE TO BE
AMPLIFIED AND CLARIFIED AS RESPECTS THE COERCION AND DISCRIMINATION
CHARGED, THE DAMAGE SUFFERED, OR OTHERWISE.  WE DO NOT TEST IT AGAINST
THE VARIOUS TYPES OF MOTIONS AND PLEADINGS WHICH MAY BE FILED.  WE
CONSTRUE IT WITH THAT LIBERALITY ACCORDED THE COMPLAINT OF A SOVEREIGN
STATE AS PRESENTING A SUBSTANTIAL QUESTION WITH SUFFICIENT CLARITY AND
SPECIFICITY AS TO REQUIRE A JOINDER OF ISSUES. 

ALLEGED MISJOINDER OF PARTIES DEFENDANT.  TWO OF THE DEFENDANT
CORPORATIONS CLAIM TO BE CITIZENS OF GEORGIA.  GEORGIA ASSERTS THEY ARE
NOT.  THAT ISSUE IS AN INVOLVED ONE.  GEORGIA MAY NOT OF COURSE INVOKE
THE ORIGINAL JURISDICTION OF THE COURT IN A SUIT AGAINST ONE OF HER
CITIZENS.  IF EITHER OF THE DEFENDANTS WHO ASSERT THIS DEFENSE IS A
CITIZEN OF GEORGIA AND IS A NECESSARY PARTY, LEAVE TO FILE WOULD HAVE
TO BE DENIED.  PENNSYLVANIA V. QUICKSILVER MINING CO., 10 WALL.  553;
CALIFORNIA V. SOUTHERN PACIFIC CO., 157 U.S. 229; MINNESOTA V. NORTHERN
SECURITIES CO., 184 U.S. 199; LOUISIANA V. CUMMINS, 314 U.S. 577.  WE
DO NOT, HOWEVER, HAVE TO DECIDE AT THIS STAGE OF THE PROCEEDINGS
WHETHER THE CORPORATIONS IN QUESTION ARE CITIZENS OF GEORGIA WITHIN THE
MEANING OF ART. III, SEC. 2 OF THE CONSTITUTION.  THEY ARE NOT
INDISPENSABLE PARTIES.  IN A SUIT TO ENJOIN A CONSPIRACY NOT ALL THE
CONSPIRATORS ARE NECESSARY PARTIES DEFENDANT.  FN9  IT IS AVERRED AND
NOT CHALLENGED THAT THE OTHER DEFENDANTS ARE CITIZENS OF OTHER STATES. 
THE CITIZENSHIP OF THE TWO DEFENDANTS IN QUESTION MAY BE CHALLENGED BY
A MOTION TO STRIKE.  LOUISIANA V. CUMMINS, 314 U.S. 580.  BUT IF THEY
ARE STRICKEN, THE COURT WOULD NOT LOSE ORIGINAL JURISDICTION OVER THE
CONTROVERSY BETWEEN GEORGIA AND THE OTHER DEFENDANTS. 

EXERCISE OF ORIGINAL JURISDICTION.  IT DOES NOT NECESSARILY FOLLOW
THAT THIS COURT MUST EXERCISE ITS ORIGINAL JURISDICTION.  IT HAS AT
TIMES BEEN HELD THAT THIS COURT IS NOT THE APPROPRIATE TRIBUNAL IN
WHICH TO MAINTAIN SUITS BROUGHT BY A STATE. 

BY CLAUSE 1 OF SEC. 2 OF ARTICLE III OF THE CONSTITUTION, THE
JUDICIAL POWER OF THE UNITED STATES EXTENDS "TO ALL CASES, IN LAW AND
EQUITY, ARISING UNDER  ...  THE LAWS OF THE UNITED STATES" AND "TO
CONTROVERSIES  ...  BETWEEN A STATE AND CITIZENS OF ANOTHER STATE." 
FN10  CLAUSE 2 OF SEC. 2 OF ARTICLE III CONFERS ON THIS COURT
JURISDICTION OF THOSE CASES "IN WHICH A STATE SHALL BE PARTY."  BUT
CLAUSE 2 OF SEC. 2 MERELY DISTRIBUTES THE JURISDICTION CONFERRED BY
CLAUSE 1 OF SEC. 2.  LOUISIANA V. TEXAS, 176 U.S. 1, 16; MASSACHUSETTS
V. MISSOURI, 308 U.S. 1, 19.  CLAUSE 2 DOES NOT GRANT EXCLUSIVE
JURISDICTION TO THIS COURT IN THE CASES ENUMERATED BY IT.  AMES V.
KANSAS, 111 U.S. 449, 469; PLAQUEMINES FRUIT CO. V. HENDERSON, 170 U.S.
511.  AND IT HAS BEEN HELD THAT THE EXERCISE OF THAT JURISDICTION IS
NOT MANDATORY IN EVERY CASE.  NORTH DAKOTA V. CHICAGO & N.W.R. CO.,
SUPRA; GEORGIA V. CHATTANOOGA, 264 U.S. 472, 483; OKLAHOMA V. COOK,
SUPRA, P. 396; MASSACHUSETTS V. MISSOURI, SUPRA.  THE COURT IN ITS
DISCRETION HAS WITHHELD THE EXERCISE OF ITS JURISDICTION WHERE THERE
HAS BEEN NO WANT OF ANOTHER SUITABLE FORUM TO WHICH THE CAUSE MAY BE
REMITTED IN THE INTERESTS OF CONVENIENCE, EFFICIENCY AND JUSTICE. 
GEORGIA V. CHATTANOOGA, SUPRA; MASSACHUSETTS V. MISSOURI, SUPRA. 
THERE IS SOME SUGGESTION THAT THE ISSUES TENDERED BY THE BILL OF
COMPLAINT PRESENT QUESTIONS WHICH A DISTRICT COURT IS QUITE COMPETENT
TO DECIDE.  IT IS POINTED OUT THAT THE REMEDY IS ONE NORMALLY PURSUED
IN THE DISTRICT COURTS WHOSE FACILITIES AND PRESCRIBED JUDICIAL DUTIES
ARE BETTER ADAPTED TO THE EXTENDED TRIAL OF ISSUES OF FACT THAN ARE
THOSE OF THIS COURT.  AND IT IS SAID THAT NO REASON APPEARS WHY THE
PRESENT SUIT MAY NOT CONVENIENTLY PROCEED IN THE DISTRICT COURT OF THE
PROPER VENUE OR WHY THE CONVENIENCE OF THE PARTIES AND WITNESSES, AS
WELL AS OF THE COURTS, WOULD BE BETTER SERVED BY A TRIAL BEFORE A
MASTER APPOINTED BY THIS COURT THAN BY A TRIAL IN A DISTRICT COURT WITH
THE CUSTOMARY APPELLATE REVIEW.  FN11  THE SUGGESTION IS THAT WE DENY
THE MOTION FOR LEAVE TO FILE, WITHOUT PREJUDICE TO THE MAINTENANCE OF
THE SUIT IN AN APPROPRIATE DISTRICT COURT.  SEE MASSACHUSETTS V.
MISSOURI, SUPRA, PP. 17-18. 

THERE IS, HOWEVER, A REASON WHY WE SHOULD NOT FOLLOW THAT PROCEDURE
HERE THOUGH IN OTHER RESPECTS WE ASSUME IT WOULD BE WHOLLY
APPROPRIATE.  SEC. 16 OF THE CLAYTON ACT (15 U.S.C. SEC. 26), WITH THE
EXCEPTIONS ALREADY NOTED, PROVIDES THAT "ANY PERSON  ...  SHALL BE
ENTITLED TO SUE FOR AND HAVE INJUNCTIVE RELIEF, IN ANY COURT OF THE
UNITED STATES HAVING JURISDICTION OVER THE PARTIES, AGAINST THREATENED
LOSS OR DAMAGE BY A VIOLATION OF THE ANTITRUST LAWS."  SEC. 12 OF THE
CLAYTON ACT (15 U.S.C. SEC. 22) PROVIDES THAT "ANY SUIT, ACTION, OR
PROCEEDING UNDER THE ANTITRUST LAWS AGAINST A CORPORATION MAY BE
BROUGHT NOT ONLY IN THE JUDICIAL DISTRICT WHEREOF IT IS AN INHABITANT,
BUT ALSO IN ANY DISTRICT WHEREIN IT MAY BE FOUND OR TRANSACTS BUSINESS;
AND ALL PROCESS IN SUCH CASES MAY BE SERVED IN THE DISTRICT OF WHICH IT
IS AN INHABITANT, OR WHEREVER IT MAY BE FOUND." 

FROM THESE PROVISIONS IT IS APPARENT THAT GEORGIA MIGHT SUE THE
DEFENDANTS ONLY IN THE JUDICIAL DISTRICT WHERE THEY ARE INHABITANTS OR
WHERE THEY MAY BE FOUND OR TRANSACT BUSINESS.  THE BILL OF COMPLAINT,
HOWEVER, ALLEGES AND (WITH THE EXCEPTION OF THE TWO DEFENDANTS ALREADY
MENTIONED) IT IS NOT DENIED THAT "THE PARTIES DEFENDANT ARE NOT
CITIZENS OF GEORGIA, OR WITHIN THE JURISDICTION OF ITS COURTS."  IF
THAT ALLEGATION IS TAKEN AS TRUE, IT IS APPARENT THAT GEORGIA COULD NOT
FIND ALL OF THE DEFENDANTS IN ONE OF THE JUDICIAL DISTRICTS OF GEORGIA
SO AS TO MAINTAIN A SUIT OF THIS CHARACTER AGAINST ALL OF THEM IN A
DISTRICT COURT IN GEORGIA.  CERTAINLY WE HAVE NO BASIS FOR ASSUMING
THAT ALL OF THE SOCALLED NORTHERN ROADS, INCORPORATED IN SUCH STATES AS
PENNSYLVANIA, MARYLAND, INDIANA, OHIO, NEW YORK AND ILLINOIS, ARE DOING
BUSINESS IN GEORGIA.  IT IS SAID THAT MOST OF THE DEFENDANTS CAN BE
FOUND IN GEORGIA, IN THE DISTRICT OF COLUMBIA, OR IN OTHER DISTRICTS. 
BUT NO SUCH FACTS APPEAR IN THE RECORD BEFORE US.  AND WE CANNOT TAKE
JUDICIAL NOTICE OF THE DISTRICT OR DISTRICTS WHEREIN ALL OF THE
DEFENDANTS ARE "FOUND" OR "TRANSACT BUSINESS."  WE WOULD NOT BE
WARRANTED IN DEPRIVING GEORGIA OF THE ORIGINAL JURISDICTION OF THIS
COURT MERELY BECAUSE EACH OF THE DEFENDANTS COULD BE FOUND IN SOME
JUDICIAL DISTRICT.  UNLESS IT WERE CLEAR THAT ALL OF THEM COULD BE
FOUND IN SOME CONVENIENT FORUM WE COULD NOT SAY THAT GEORGIA HAD A
"PROPER AND ADEQUATE REMEDY" APART FROM THE ORIGINAL JURISDICTION OF
THIS COURT.  MASSACHUSETTS V. MISSOURI, SUPRA, P. 19.  NO SUCH SHOWING
HAS BEEN MADE.  ONCE A STATE MAKES OUT A CASE WHICH COMES WITHIN OUR
ORIGINAL JURISDICTION, ITS RIGHT TO COME HERE IS ESTABLISHED.  THERE IS
NO REQUIREMENT IN THE CONSTITUTION THAT IT GO FURTHER AND SHOW THAT NO
OTHER FORUM IS AVAILABLE TO IT. 

IT IS TRUE THAT SEC. 5 OF THE SHERMAN ACT EMPOWERS THE COURT BEFORE
WHOM PROCEEDINGS UNDER SEC. 4 ARE PENDING TO BRING IN PARTIES WHO
RESIDE OUTSIDE THE DISTRICT IN WHICH THE COURT IS HELD.  FN12  THAT
PROCEDURE IS AVAILABLE IN CIVIL SUITS BROUGHT BY THE UNITED STATES. 
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 46.  BUT SINCE SEC. 4 IS
LIMITED TO SUITS BROUGHT BY THE UNITED STATES, SEC. 5 IS SIMILARLY
CONFINED.  SEE GREER, MILLS & CO. V. STOLLER, 77 F. 1; HANSEN PACKING
CO. V. ARMOUR & CO., 16 F.SUPP.  784, 787.  APART FROM SPECIFIC
EXCEPTIONS CREATED BY CONGRESS THE JURISDICTION OF THE DISTRICT COURTS
IS TERRITORIAL.  AS STATED IN ROBERTSON V. RAILROAD LABOR BOARD, 268
U.S. 619, 622-623: 

"IN A CIVIL SUIT IN PERSONAM JURISDICTION OVER THE DEFENDANT, AS
DISTINGUISHED FROM VENUE, IMPLIES, AMONG OTHER THINGS, EITHER VOLUNTARY
APPEARANCE BY HIM OR SERVICE OF PROCESS UPON HIM AT A PLACE WHERE THE
OFFICER SERVING IT HAS AUTHORITY TO EXECUTE A WRIT OF SUMMONS.  UNDER
THE GENERAL PROVISIONS OF LAW, A UNITED STATES DISTRICT COURT CANNOT
ISSUE PROCESS BEYOND THE LIMITS OF THE DISTRICT, HARKNESS V. HYDE, 98
U.S. 476; EX PARTE GRAHAM, 3 WASH. 456; AND A DEFENDANT IN A CIVIL SUIT
CAN BE SUBJECTED TO ITS JURISDICTION IN PERSONAM ONLY BY SERVICE WITHIN
THE DISTRICT.  TOLAND V. SPRAGUE, 12 PET. 300, 330.  SUCH WAS THE
GENERAL RULE ESTABLISHED BY THE JUDICIARY ACT OF SEPTEMBER 24, 1789, C.
20, SEC. 11, 1 STAT. 73, 79, IN ACCORDANCE WITH THE PRACTICE AT THE
COMMON LAW.  PIQUET V. SWAN, 5 MASON 35, 39 ET SEQ. AND SUCH HAS BEEN
THE GENERAL RULE EVER SINCE.  MUNTER V. WEIL CORSET CO., 261 U.S. 276,
279." 

IT FOLLOWS THAT WE SHOULD NOT IN THE EXERCISE OF OUR DISCRETION REMIT
GEORGIA TO THE FEDERAL DISTRICT COURTS FOR RELIEF AGAINST THE INJURIES
OF WHICH SHE COMPLAINS. 

THE MOTION FOR LEAVE TO FILE THE AMENDED BILL OF COMPLAINT IS
GRANTED.  IT IS SO ORDERED. 

FN1  THE ORIGINAL BILL OF COMPLAINT DATED JUNE 12, 1944 WAS FOLLOWED
BY AN AMENDED BILL OF COMPLAINT DATED SEPTEMBER 15, 1944.  OUR
REFERENCES THROUGHOUT ARE TO THE AMENDED BILL. 

FN2  SEE MCLAUGHLIN, CASES ON THE FEDERAL ANTI-TRUST LAWS (1933), PP.
7-42; THORNTON, COMBINATIONS IN RESTRAINT OF TRADE (1928), CHS.  II,
III. 

FN3  AND SEE MISSOURI V. ILLINOIS, 200 U.S. 496; WISCONSIN V.
ILLINOIS, 278 U.S. 367. 

FN4  SEE 1 BEVERIDGE, THE LIFE OF JOHN MARSHALL (1916), PP. 310-311;
BANCROFT, HISTORY OF THE FORMATION OF THE CONSTITUTION (1885), PP. 27,
130, 183, 187, 454. 

FN5  THESE PROVISIONS ARE THOSE RELATING TO DISCRIMINATIONS IN PRICE,
SERVICES, OR FACILITIES (SEC. 2); CERTAIN SALES OF GOODS, WARES,
MERCHANDISE AND THE LIKE (SEC. 3); ACQUISITION BY ONE CORPORATION OF
THE STOCK OF ANOTHER (SEC. 7); INTERLOCKING DIRECTORATES AND OFFICERS
(SEC. 8).  SEE 15 U.S.C. SECS. 13, 14, 18, AND 19.  THE ENFORCEMENT
MACHINERY IS COMPOSED OF CEASE AND DESIST ORDERS ENFORCEABLE IN THE
COURTS.  15 U.S.C. SEC. 21. 

FN6  SEE (1) 51 CONG. RECORD, 63D CONG., 2D SESS., PP. 9582, 9583;
(2) S. 942, 78TH CONG., 1ST SESS.; H.R. 2720, 78TH CONG., 1ST SESS.
THESE LATTER PROPOSALS WERE DESIGNED (1) TO MAKE LAWFUL THE FIXING OF
RATES BY CARRIERS THROUGH RATE BUREAUS, CONFERENCES, OR ASSOCIATIONS;
AND (2) TO PUT THOSE GROUP ACTIVITIES UNDER THE CONTROL OF THE
COMMISSION.  THE HISTORY AND ACTIVITIES OF RATE BUREAUS ARE EXTENSIVELY
REVIEWED IN HEARINGS, SENATE COMMITTEE ON INTERSTATE COMMERCE ON S.
942, REGULATION OF RATE BUREAUS, 78TH CONG., 1ST SESS. 

FN7  WE HAVE CONSIDERED THE ARGUMENT THAT CERTIFICATE NO. 44, ISSUED
MARCH 20, 1943 UNDER SEC. 12 OF THE ACT OF JUNE 11, 1942(56 STAT. 357)
BY THE CHAIRMAN OF THE WAR PRODUCTION BOARD (8 FED. REG. 3804) PROTECTS
THIS ALLEGED COMBINATION FROM THE CHARGES CONTAINED IN THE BILL.  THAT
CERTIFICATE APPROVES JOINT ACTION BY COMMON CARRIERS THROUGH RATE
BUREAUS AND THE LIKE IN THE INITIATION AND ESTABLISHMENT OF RATES.  WE
DO NOT STOP TO ANALYZE IT BEYOND OBSERVING THAT IN NO RESPECT WOULD IT
BE A BAR TO THE PRESENT ACTION.  IT DOES NOT PURPORT TO BE
RETROACTIVE.  IT DOES NOT SANCTION THE USE OF COERCION.  IT DOES NOT
AUTHORIZE ANY COMBINATION TO DISCRIMINATE AGAINST A REGION IN THE
ESTABLISHMENT OF RATES.  MOREOVER, LEGAL MEANS MAY BE EMPLOYED FOR AN
ILLEGAL END. 

FN8  WE THEREFORE DO NOT REACH THE QUESTION WHETHER AN ACTION BASED
ON COMMON LAW PRINCIPLES COULD BE MAINTAINED. 

FN9  SEE WATERMAN V. CANAL-LOUISIANA BANK CO., 215 U.S. 33, 49;
UNITED SHOE MACHINERY CORP. V. UNITED STATES, 258 U.S. 451, 456;
HOPKINS V. OXLEY STAVE CO., 83 F. 912, 915-916; ROCKY MOUNTAIN BELL
TEL. CO. V. MONTANA FEDERATION OF LABOR, 156 F. 809, 811-812.  CF.
UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 247. 

FN10  BY REASON OF THE ELEVENTH AMENDMENT THE JUDICIAL POWER OF THE
UNITED STATES DOES NOT EXTEND TO SUITS BROUGHT AGAINST A STATE BY A
CITIZEN OF ANOTHER STATE. 

FN11  IN A PROPER CASE APPELLATE REVIEW MAY BE HAD DIRECTLY IN THIS
COURT BY CERTIORARI BEFORE JUDGMENT IN THE CIRCUIT COURT OF APPEALS. 
JUDICIAL CODE SEC. 240(A), 28 U.S.C. SEC. 347(A). 

FN12  SEC. 4 READS: 

"THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE INVESTED WITH
JURISDICTION TO PREVENT AND RESTRAIN VIOLATIONS OF SECTIONS 1-7 AND 15
OF THIS TITLE; 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.  SUCH PROCEEDINGS MAY
BE BY WAY OF PETITION SETTING FORTH THE CASE AND PRAYING THAT SUCH
VIOLATION SHALL BE ENJOINED OR OTHERWISE PROHIBITED.  WHEN THE PARTIES
COMPLAINED OF SHALL HAVE BEEN DULY NOTIFIED OF SUCH PETITION THE COURT
SHALL PROCEED, AS SOON AS MAY BE, TO THE HEARING AND DETERMINATION OF
THE CASE; AND PENDING SUCH PETITION AND BEFORE FINAL DECREE, THE COURT
MAY AT ANY TIME MAKE SUCH TEMPORARY RESTRAINING ORDER OR PROHIBITION AS
SHALL BE DEEMED JUST IN THE PREMISES."  SEC. 5 READS: 

"WHENEVER IT SHALL APPEAR TO THE COURT BEFORE WHICH ANY PROCEEDING
UNDER SECTION 4 OF THIS TITLE MAY BE PENDING, THAT THE ENDS OF JUSTICE
REQUIRE THAT OTHER PARTIES SHOULD BE BROUGHT BEFORE THE COURT, THE
COURT MAY CAUSE THEM TO BE SUMMONED, WHETHER THEY RESIDE IN THE
DISTRICT IN WHICH THE COURT IS HELD OR NOT; AND SUBPOENAS TO THAT END
MAY BE SERVED IN ANY DISTRICT BY THE MARSHAL THEREOF." 

MR. CHIEF JUSTICE STONE, DISSENTING. 

MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON,
AND I THINK THAT THE APPLICATION OF THE STATE OF GEORGIA FOR LEAVE TO
FILE ITS AMENDED BILL OF COMPLAINT IN THIS COURT SHOULD BE DENIED (1)
BECAUSE IN ITS JUDICIAL DISCRETION, THIS COURT SHOULD, WITHOUT DECIDING
THE MERITS, LEAVE THE STATE TO ITS REMEDY, IF ANY, IN THE DISTRICT
COURT; (2) BECAUSE THE STATE LACKS STANDING TO PRESENT THE ONLY
SUBSTANTIAL ISSUE IN THE CASE; AND (3) BECAUSE IN THE PRESENT POSTURE
OF THE CASE, THE BILL OF COMPLAINT, FOR SEVERAL REASONS, FAILS TO STATE
A CAUSE OF ACTION FOR WHICH A COURT OF EQUITY CAN GIVE EFFECTIVE
RELIEF. 

AS THE COURT CONCEDES AND FOR REASONS WHICH WILL PRESENTLY BE MORE
FULLY CONSIDERED, THE STATE, UNDER THE RULE LAID DOWN IN KEOGH V.
CHICAGO & NORTHWESTERN R. CO., 260 U.S. 156, CANNOT MAINTAIN ITS SUIT
FOR DAMAGES RESULTING FROM THE ALLEGED CONSPIRACY TO FIX UNLAWFUL
INTERSTATE RAILROAD FREIGHT RATES.  BUT THE COURT GRANTS GEORGIA'S
APPLICATION TO FILE ON THE GROUND THAT ITS BILL OF COMPLAINT, AS NOW
AMENDED, STATES A CAUSE OF ACTION UNDER SEC. 16 OF THE CLAYTON ACT, C.
323, 38 STAT. 737, 15 U.S.C. SEC. 26, FOR AN INJUNCTION AGAINST A
CONSPIRACY IN VIOLATION OF THE ANTITRUST LAWS.  THE COURT HOLDS THAT
SUCH A SUIT IS WITHIN THE ORIGINAL JURISDICTION OF THIS COURT,
CONFERRED BY ARTICLE III, SEC. 2, CLS. 1 AND 2 OF THE CONSTITUTION. 
CLAUSE 1 PROVIDES THAT THE JUDICIAL POWER OF THE UNITED STATES EXTENDS
"TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER  ... THE LAWS OF THE
UNITED STATES" AND "TO CONTROVERSIES  ...  BETWEEN A STATE AND CITIZENS
OF ANOTHER STATE...."  CLAUSE 2 CONFERS ON THIS COURT ORIGINAL
JURISDICTION OF THOSE CASES OR CONTROVERSIES "IN WHICH A STATE SHALL BE
PARTY." 

THE COURT DISREGARDS THE FAINTHEARTED AND UNCONVINCING ASSERTION OF
THE STATE THAT IT HAS A "COMMON LAW" CAUSE OF ACTION ENTITLING IT,
INDEPENDENTLY OF THE CLAYTON ACT AND THE FEDERAL ANTITRUST LAWS, TO
MAINTAIN THE PRESENT SUIT TO RESTRAIN THE ALLEGED CONSPIRACY TO FIX AND
MAINTAIN RATES OR CHARGES FOR THE INTERSTATE TRANSPORTATION OF
FREIGHT.  WE DO NOT STOP TO CONSIDER THIS CONTENTION, FOR WE ARE OF THE
OPINION THAT THE OBJECTIONS TO THE MAINTENANCE OF THE PRESENT SUIT ARE
ESSENTIALLY THE SAME, WHETHER IT BE REGARDED AS A SUIT UPON A CAUSE OF
ACTION ARISING UNDER THE CLAYTON ACT OR AS ONE MAINTAINABLE UPON THE
EQUITABLE PRINCIPLES GENERALLY APPLICABLE IN THE FEDERAL COURTS
INDEPENDENTLY OF THE CLAYTON ACT. 

                    I 

IF IT BE ASSUMED THAT THE STATE MAY MAINTAIN THIS ACTION, EITHER AS
PARENS PATRIAE OR FOR THE INJURY TO ITSELF AS A SHIPPER AND CONSIGNEE
OF INTERSTATE FREIGHT, THE RIGHT SOUGHT TO BE ESTABLISHED IS IN POINT
OF SUBSTANCE LIKE THAT OF A PRIVATE CORPORATION, AND THE REMEDY ASKED
IS ONE NORMALLY PURSUED IN DISTRICT COURTS WHOSE FACILITIES AND
PRESCRIBED JUDICIAL DUTIES ARE BETTER ADAPTED TO THE TRIAL OF ISSUES OF
FACT THAN ARE THOSE OF THIS COURT.  IN AN ORIGINAL SUIT, EVEN WHEN THE
CASE IS FIRST REFERRED TO A MASTER, THIS COURT HAS THE DUTY OF MAKING
AN INDEPENDENT EXAMINATION OF THE EVIDENCE, A TIME-CONSUMING PROCESS
WHICH SERIOUSLY INTERFERES WITH THE DISCHARGE OF OUR EVER-INCREASING
APPELLATE DUTIES.  NO REASON APPEARS WHY THE PRESENT SUIT MAY NOT BE AS
CONVENIENTLY PROCEEDED WITH IN THE DISTRICT COURT OF THE PROPER VENUE
AS IN THIS COURT, OR WHY THE CONVENIENCE OF THE PARTIES AND WITNESSES,
AS WELL AS OF THE COURTS CONCERNED, WOULD BE BETTER SERVED BY A TRIAL
BEFORE A MASTER APPOINTED BY THIS COURT THAN BY A TRIAL IN THE
APPROPRIATE DISTRICT COURT WITH THE CUSTOMARY APPELLATE REVIEW.  THE
CASE SEEMS PREEMINENTLY ONE WHERE THIS COURT MAY AND SHOULD, IN THE
EXERCISE OF ITS DISCRETION AND IN THE INTEREST OF A MORE EFFICIENT
ADMINISTRATION OF JUSTICE, DECLINE TO EXERCISE ITS JURISDICTION, AND
REMIT THE PARTIES TO THE APPROPRIATE DISTRICT COURT FOR THE PROPER
DISPOSITION OF THE CASE THERE.  NORTH DAKOTA V. CHICAGO & NORTHWESTERN
R. CO., 257 U.S. 485; GEORGIA V. CHATTANOOGA, 264 U.S. 472, 483;
OKLAHOMA EX REL. JOHNSON V. COOK, 304 U.S. 387, 396; MASSACHUSETTS V.
MISSOURI, 308 U.S. 1, 17-20.    IT IS SAID THAT GEORGIA SHOULD NOT BE
DEPRIVED OF THE JURISDICTION OF THIS COURT UNLESS IT CAN BRING SUIT
AGAINST ALL THE DEFENDANTS IN ONE CONVENIENT DISTRICT; AND THAT THERE
IS NO REASON FOR ASSUMING THAT ALL THE DEFENDANTS ARE AMENABLE TO SUIT
IN ANY ONE JUDICIAL DISTRICT.  BUT THIS PUTS THE SHOE ON THE WRONG
FOOT.  IT IS GEORGIA WHICH SEEKS TO INVOKE OUR EQUITY JURISDICTION TO
HEAR THIS CASE, AND WHEN THE QUESTION OF OUR DISCRETIONARY POWER TO
REMIT THE PARTIES TO AN ADEQUATE REMEDY IN SOME OTHER COURT IS RAISED,
IT IS INCUMBENT UPON IT TO SHOW THAT IT WILL BE UNABLE TO REACH ALL THE
DEFENDANTS IN A CONVENIENT DISTRICT.  AND GEORGIA, ALTHOUGH INVITED ON
THE ARGUMENT OF THIS MOTION TO DO SO, HAS MADE NO SHOWING THAT THE SUIT
CANNOT BE PROCEEDED WITH IN A DISTRICT COURT AS READILY AS IN THIS
COURT.  IT MADE NO SUCH ALLEGATION IN THE AMENDED BILL OF COMPLAINT
WHICH IT TENDERS.  FN1  HENCE WE CAN ONLY CONCLUDE THAT THERE IS NO
SUCH OBSTACLE. 

FURTHER, IT MAY BE READILY DETERMINED FROM STANDARD WORKS OF
REFERENCE, SUCH AS THE OFFICIAL GUIDE OF THE RAILWAYS, MOODY'S STEAM
RAILROADS, RAILROAD TIMETABLES, AND TELEPHONE DIRECTORIES, THAT THE
SUPPOSED DIFFICULTY IS NOT A REAL ONE.  UNDER SEC. 12 OF THE CLAYTON
ACT, 15 U.S.C. SEC. 22, THESE DEFENDANTS MAY BE SUED IN ANY DISTRICT IN
WHICH THEY ARE "FOUND" OR "TRANSACT BUSINESS."  A CORPORATION BOTH IS
"FOUND" AND "TRANSACTS BUSINESS" IN A DISTRICT IN WHICH IT OPERATES A
RAILROAD OR IN WHICH IT MAINTAINS AN OFFICE FOR THE SOLICITATION OF
FREIGHT OR PASSENGER TRAFFIC.  SEE EASTMAN KODAK CO. V. SOUTHERN PHOTO
CO., 273 U.S. 359, 370-374; UNITED STATES V. UNIVIS LENS CO., 316 U.S.
241, 246.  THESE FACTS MAY BE ASCERTAINED READILY FROM THE SOURCES WE
HAVE MENTIONED.  IT APPEARS FROM THEM THAT THERE ARE SEVERAL DISTRICTS
WHICH WOULD BE AS CONVENIENT FOR A TRIAL AS WASHINGTON, D.C., WHERE
PROCEEDINGS BEFORE THIS COURT WOULD BE HAD, AND IN WHICH GEORGIA MAY
OBTAIN SERVICE OF PROCESS UPON AT LEAST AS MANY OF THE DEFENDANTS NAMED
IN THE COMPLAINT, AS IT MAY SUE IN THIS COURT.  FOR GEORGIA, ITSELF, AS
WELL AS THIS COURT, SEEMS RECONCILED TO THE SUIT'S CONTINUING HERE WITH
BUT EIGHTEEN OF THE TWENTY DEFENDANTS, SINCE TWO MAY BE REQUIRED TO BE
DISMISSED FROM THE SUIT AS CITIZENS OF GEORGIA.  FN2 

OF THE TWENTY DEFENDANTS, AT LEAST 18, NOT INCLUDING THE NEW YORK,
CHICAGO & ST. LOUIS R. CO. AND THE RICHMOND, FREDERICKSBURG & POTOMAC
R. CO. (R.F. & P.), ARE WITHIN THE JURISDICTION OF THE NORTHERN
DISTRICT OF GEORGIA.  OF THESE DEFENDANTS, AT LEAST 19, ALL BUT THE
R.F. & P., TRANSACT BUSINESS IN THE NORTHERN DISTRICT OF ILLINOIS AND
IN THE SOUTHERN DISTRICT OF NEW YORK.  AT LEAST 18, NOT INCLUDING THE
R.F. & P. AND THE NASHVILLE, CHATTANOOGA & ST. LOUIS RY., ARE AMENABLE
TO SUIT IN THE WESTERN DISTRICT OF PENNSYLVANIA AND IN THE EASTERN
DISTRICT OF MICHIGAN.  AT LEAST 18, ALL BUT THE R.F. & P. AND THE
CAROLINA, CLINCHFIELD AND OHIO RAILWAY,  FN3  ARE SUABLE IN THE EASTERN
DISTRICT OF MISSOURI.  THUS, THERE IS NO WANT OF A SUITABLE FORUM IN
WHICH GEORGIA CAN REACH AT LEAST THE SAME NUMBER OF DEFENDANTS AS SHE
MAY SUE IN THIS COURT.  AND IT MAY BE THAT SERVICE CAN BE HAD ON THE
OTHER DEFENDANTS IN THE DISTRICTS NAMED. 

                               II 

IF LEAVE TO FILE WERE DENIED, AS WE THINK IT SHOULD BE, WITHOUT
PREJUDICE TO A SUIT IN A DISTRICT COURT, IT WOULD BE UNNECESSARY AT
THIS STAGE OF THE PROCEEDINGS TO PASS UPON THE QUESTION WHETHER THE
SUIT IS ONE WHICH A COURT OF EQUITY COULD ENTERTAIN.  BUT IN ASSUMING
JURISDICTION OF THE CASE, THE COURT PASSES ON THAT QUESTION.  HENCE IT
BECOMES NECESSARY TO STATE THE REASONS WHY, IN THE PRESENT POSTURE OF
THE CASE, THE STATE DOES NOT STATE A CASE FOR RELIEF WITHIN OUR
ORIGINAL JURISDICTION. 

THE GIST OF THE CAUSE OF ACTION ASSERTED BY THE AMENDED COMPLAINT IS
THE INJURY VISITED UPON THE INHABITANTS OF THE STATE OF GEORGIA BY THE
ALLEGED CONSPIRACY AMONG THE DEFENDANT RAILROADS TO FIX AND MAINTAIN
UNLAWFULLY EXCESSIVE AND DISCRIMINATORY RATES UPON FREIGHT MOVING BY
INTERSTATE RAIL TRANSPORTATION TO AND FROM GEORGIA.  IT IS FURTHER
ALLEGED THAT THE CONSPIRACY VIOLATES THE SHERMAN ACT, AND THAT ITS
EFFECT IS TO RETARD THE ECONOMIC GROWTH OF THE STATE.  TO THIS IS ADDED
WHAT THE COURT CONCEDES IS A MERE "MAKEWEIGHT" ALLEGATION OF INJURY TO
THE STATE IN ITS CAPACITY AS AN OWNER OF A RAILROAD, AND AS A SHIPPER
AND CONSIGNEE OF FREIGHT. 

BUT THE INHABITANTS OF THE STATE WHO HAVE SUFFERED INJURY OR WHO ARE
THREATENED WITH INJURY BY THE UNLAWFUL PRACTICES ALLEGED IN THE AMENDED
COMPLAINT ARE ALONE ENTITLED TO SEEK A LEGAL REMEDY FOR THEIR INJURY,
AND ARE THE PROPER PARTIES PLAINTIFF IN ANY SUIT TO ENFORCE THEIR
RIGHTS WHICH ARE ALLEGED TO HAVE BEEN INFRINGED.  IT HAS LONG BEEN
SETTLED BY THE DECISIONS OF THIS COURT THAT A STATE IS WITHOUT STANDING
TO MAINTAIN SUIT FOR INJURIES SUSTAINED BY ITS CITIZENS AND INHABITANTS
FOR WHICH THEY MAY SUE IN THEIR OWN BEHALF.  NEW HAMPSHIRE V.
LOUISIANA, 108 U.S. 76; LOUISIANA V. TEXAS, 176 U.S. 1; OKLAHOMA V.
ATCHISON, T. & S.F.R. CO., 220 U.S. 277, 289; OKLAHOMA EX REL. JOHNSON
V. COOK, SUPRA, 395-396; JONES EX REL. LOUISIANA V. BOWLES, 322 U.S.
707.  AND MANY YEARS AGO IT WAS ESTABLISHED BY DECISIONS OF THIS COURT,
WHOSE AUTHORITY HAS REMAINED UNIMPAIRED UNTIL DISCARDED BY THE OPINION
OF THE COURT JUST ANNOUNCED, THAT A STATE DOES NOT STAND IN SUCH
RELATION TO ITS CITIZENS AND INHABITANTS AS TO ENABLE IT TO MAINTAIN AN
ORIGINAL SUIT IN THIS COURT TO PROTECT THEM BY INJUNCTION FROM INJURIES
TO THE STATE'S ECONOMY RESULTING FROM THE MAINTENANCE OF UNLAWFUL
INTERSTATE FREIGHT RATES.  OKLAHOMA V. ATCHISON, T. & S.F.R. CO.,
SUPRA; CF. OKLAHOMA V. GULF, C. & S.F.R. CO., 220 U.S. 290, 301. 

IN THE ATCHISON RAILWAY CASE THE PLAINTIFF STATE ALLEGED AS THE BASIS
FOR ITS CAPACITY TO SUE FOR RELIEF, SEE 220 U.S. AT 283-284, AS DOES
GEORGIA HERE, THAT THE MAINTENANCE OF THE UNLAWFUL STRUCTURE OF FREIGHT
RATES ON COMMODITIES WIDELY USED BY INHABITANTS OF THE STATE WAS "'A
MENACE TO THE FUTURE OF SAID STATE'...  (AND) A HINDRANCE TO THE GROWTH
OF THE STATE."  THIS COURT NEVERTHELESS HELD THAT THE WRONG WAS TO THE
INDIVIDUALS OF THE STATE, AND THAT THE STATE WAS THEREFORE NOT IN A
POSITION TO BRING THE SUIT AS PARENS PATRIAE. 

THE FEDERAL GOVERNMENT IS PARENS PATRIAE WITH RESPECT OF THE CAUSE OF
ACTION HERE ALLEGED, AND NOT THE STATE.  THE FEDERAL GOVERNMENT ALONE
STANDS IN SUCH RELATIONSHIP TO THE CITIZENS AND INHABITANTS OF THE
UNITED STATES, AS TO PERMIT THE BRINGING OF SUIT IN THEIR BEHALF, TO
PROTECT THEM FROM THE VIOLATION OF FEDERAL LAWS RELATING TO INTERSTATE
COMMERCE.  SEE MASSACHUSETTS V. MELLON, 262 U.S. 447, 485-486; FLORIDA
V. MELLON, 273 U.S. 12, 18; JONES EX REL. LOUISIANA V. BOWLES, SUPRA.
THE SHERMAN ACT, SECS. 1-4, 15 U.S.C. SECS. 1-4, RECOGNIZED THAT IT IS
THE UNITED STATES WHICH IS PARENS PATRIAE, WHEN IT AUTHORIZED THE
UNITED STATES, NOT THE INDIVIDUAL STATES, TO BRING CRIMINAL
PROSECUTIONS OR SUITS FOR INJUNCTIONS UNDER THE ACT. 

WHEN THE UNITED STATES BRINGS SUCH A SUIT IT IS ACTING ON BEHALF OF
THE PEOPLE OF THE UNITED STATES, AND IN THE NATIONAL INTEREST.  THE
AUTHORITY TO BRING SUCH SUITS INCLUDES THE DISCRETIONARY AUTHORITY NOT
TO BRING THEM, IF THE RESPONSIBLE OFFICERS OF THE GOVERNMENT ARE OF THE
OPINION THAT A SUIT IS NOT WARRANTED OR WOULD BE OF DISSERVICE TO THE
NATIONAL INTEREST.  TO PERMIT A STATE TO BRING A SHERMAN ACT SUIT IN
BEHALF OF THE PUBLIC IS TO FLY IN THE FACE OF THE NATIONAL POLICY
ESTABLISHED BY CONGRESS THAT THE FEDERAL GOVERNMENT SHOULD DETERMINE
WHEN SUCH A SUIT IS TO BE BROUGHT AND HOW IT SHOULD BE PROSECUTED. 

THUS THE SHERMAN ACT ENTRUSTED TO THE NATIONAL GOVERNMENT THE DUTY TO
REPRESENT THE PEOPLE IN THE VINDICATION OF THEIR RIGHTS UNDER THE
ANTITRUST LAWS.  AND THIS IS CONFIRMED BY SEC. 16 OF THE CLAYTON ACT,
WHICH PERMITS INJUNCTION SUITS BY THE UNITED STATES AGAINST COMMON
CARRIERS IN RESPECT OF MATTERS WITHIN THE PROVINCE OF THE INTERSTATE
COMMERCE COMMISSION, WHILE PROHIBITING SUCH SUITS TO ALL OTHERS,
INCLUDING A STATE. 

                            III 

BUT EVEN IF, AS THE COURT DECIDES, GEORGIA HAS STANDING TO MAINTAIN
THIS SUIT, EITHER IN ITS OWN RIGHT OR AS PARENS PATRIAE, AND THIS COURT
HAS JURISDICTION OF THE SUIT AND SHOULD, IN THE EXERCISE OF ITS
DISCRETION, ENTERTAIN IT RATHER THAN REMIT THE PARTIES TO THE DISTRICT
COURT, THE MORE IMPORTANT QUESTION REMAINS WHETHER THE PRESENT SUIT IS
ONE IN WHICH A COURT OF EQUITY CAN GIVE ANY EFFECTIVE RELIEF. 

THE SUIT, SO FAR AS THE COURT ALLOWS ITS PROSECUTION, IS IN EQUITY TO
RESTRAIN AN ALLEGED CONSPIRACY BY THE DEFENDANT RAIL CARRIERS TO FIX
AND MAINTAIN UNJUST, UNLAWFUL, EXCESSIVE, AND DISCRIMINATORY FREIGHT
RATES IN VIOLATION OF THE ANTITRUST LAWS.  SECTION 16 OF THE CLAYTON
ACT, 15 U.S.C. SEC. 26, AUTHORIZES "ANY PERSON" TO MAINTAIN A SUIT TO
RESTRAIN VIOLATIONS OF THE ANTITRUST LAWS, AND THE STATE OF GEORGIA,
SUING FOR ITS OWN INJURIES, IS A PERSON WITHIN THE MEANING OF THAT
THE RELIEF TO BE GIVEN IS AN INJUNCTION "AGAINST THREATENED LOSS OR
DAMAGE BY A VIOLATION OF THE ANTITRUST LAWS, ...  WHEN AND UNDER THE
SAME CONDITIONS AND PRINCIPLES AS INJUNCTIVE RELIEF AGAINST THREATENED
CONDUCT THAT WILL CAUSE LOSS OR DAMAGE IS GRANTED BY COURTS OF EQUITY,
UNDER THE RULES GOVERNING SUCH PROCEEDINGS  ..."  AND EVEN THOUGH, AS
ASSERTED, THE SUIT BE MAINTAINABLE IN THE FEDERAL COURTS INDEPENDENTLY
OF THE CLAYTON ACT, THE CONTROLLING PRINCIPLES GOVERNING THE
MAINTENANCE OF THE SUIT ARE THE SAME IN EITHER CASE.  THE PLAINTIFF
MUST SHOW THREATENED INJURY, VICKSBURG WATERWORKS CO. V. VICKSBURG, 185
U.S. 65, 82; PAINE LUMBER CO. V. NEAL, 244 U.S. 459, 471; DUPLEX CO. V.
DEERING, 254 U.S. 443, 464-465; COMPARE TEXAS V. FLORIDA, 306 U.S. 398,
406-412 WITH MASSACHUSETTS V. MISSOURI, SUPRA, 15-16, FOR WHICH HE IS
WITHOUT OTHER ADEQUATE REMEDY, MATTHEWS V. RODGERS, 284 U.S. 521, 525
526, AND CASES CITED; SCHOENTHAL V. IRVING TRUST CO., 287 U.S. 92, 94;
MYERS V. BETHLEHEM CORP., 303 U.S. 41, 50-52, AND CASES CITED, AND FOR
WHICH A COURT OF EQUITY IS ABLE TO PROVIDE A REMEDY. 

GEORGIA IS THREATENED WITH INJURY ONLY AS THE ALLEGED CONSPIRACY WILL
RESULT IN THE DEFENDANTS' CHARGING FREIGHT RATES OTHER THAN THOSE WHICH
WOULD EXIST IN THE ABSENCE OF THE CONSPIRACY.  THAT IS, GEORGIA IS NOT
INJURED UNLESS OTHER RATES THAN THOSE NOW IN FORCE WOULD BE CHARGED IF
THE ALLEGED CONSPIRACY WERE TO CEASE.  WHILE THREATENED DAMAGE IN THAT
SENSE COULD BE ASSUMED IN A FREE COMPETITIVE MARKET, FREIGHT RATES ARE
NOT, UNDER THE INTERSTATE COMMERCE ACT, ARRIVED AT BY THE PROCESSES OF
FREE COMPETITION.  THE REQUIREMENTS OF THE ACT ARE, AS WE WILL SEE,
THAT THE RATES BE JUST AND REASONABLE AND THAT THEY ACCORD WITH THE
NATIONAL TRANSPORTATION POLICY; THE DETERMINATION, IN THE FIRST
INSTANCE, WHETHER THE RATES CONFORM TO THOSE STANDARDS IS LEFT BY
CONGRESS TO THE INTERSTATE COMMERCE COMMISSION, NOT TO THE COURTS.  AND
UNLESS GEORGIA CAN SHOW THAT THE PRESENT RATES ARE UNLAWFUL, OR THAT
SOME OTHER RATE STRUCTURE, WHICH COULD BE SUBSTITUTED FOR THAT NOW IN
FORCE, WOULD BE JUST AND REASONABLE, WHICH GEORGIA CANNOT DO WITHOUT
PRIOR RESORT TO THE COMMISSION, IT CAN NOT SHOW THAT ANY OTHER
STRUCTURE COULD LAWFULLY EXIST OR THAT ANY INJURY TO IT IS THREATENED
BY THE CONSPIRACY. 

IT FOLLOWS FROM THIS THAT THE PREREQUISITES TO THE MAINTENANCE OF THE
PRESENT SUIT ARE LACKING FOR THE FOLLOWING REASONS:  FIRST, THE STATE
HAS NOT AVAILED ITSELF OF OR EXHAUSTED THE ADMINISTRATIVE REMEDIES
PROVIDED BY THE INTERSTATE COMMERCE ACT, WHICH MAY AFFORD AN ADEQUATE
REMEDY AND WHICH MUST IN ANY CASE PRECEDE THE INSTITUTION OF THE
PRESENT SUIT IN EQUITY.  SECOND, THE SUIT AS NOW FRAMED FALLS WITHIN
THE PROVISO OF SEC. 16 OF THE CLAYTON ACT DENYING TO ANY "PERSON,"
EXCEPT THE UNITED STATES, AUTHORITY "TO BRING SUIT IN EQUITY FOR
INJUNCTIVE RELIEF AGAINST ANY COMMON CARRIER SUBJECT TO THE PROVISIONS
OF" THE INTERSTATE COMMERCE ACT, "IN RESPECT OF ANY MATTER SUBJECT TO
THE REGULATION, SUPERVISION, OR OTHER JURISDICTION OF THE INTERSTATE
COMMERCE COMMISSION."  AND THIRD, IN THE ABSENCE OF A DETERMINATION BY
THE COMMISSION OF THE UNLAWFULNESS OF THE INTERSTATE FREIGHT TARIFFS
FILED OR PROPOSED TO BE FILED BY THE SEVERAL DEFENDANT CARRIERS, NO
COURT OF EQUITY COULD, WITHIN THE SCOPE OF ITS AUTHORITY, FRAME A
DECREE EFFECTIVELY ENJOINING AN AGREEMENT OR "CONSPIRACY" TO FILE
TARIFFS ESTABLISHING INTERSTATE FREIGHT RATES. 

FIRST.  THE FACT THAT A STATE MAY CONSTITUTIONALLY INVOKE THE
JURISDICTION OF THIS COURT IN A SUIT BROUGHT BY IT AGAINST CITIZENS OF
ANOTHER STATE, DOES NOT DISPENSE WITH THE FURTHER REQUISITE THAT IF
EQUITABLE RELIEF IS SOUGHT, THE BILL OF COMPLAINT MUST STATE A CAUSE OF
ACTION COGNIZABLE IN EQUITY, OF SUCH A NATURE THAT THE COURT CAN GIVE
RELIEF.  TEXAS V. FLORIDA, SUPRA, 405.  IT IS, AS WE HAVE SAID, A
FAMILIAR PRINCIPLE GOVERNING THE EXERCISE OF EQUITY JURISDICTION OF
FEDERAL COURTS THAT EQUITABLE RELIEF MAY BE INVOKED ONLY WHEN THE
PLAINTIFF IS WITHOUT OTHER ADEQUATE REMEDY.  AND IT IS A COROLLARY OF
THIS THAT A SUITOR MAY NOT SEEK SUCH RELIEF UNTIL HE HAS EXHAUSTED HIS
AVAILABLE ADMINISTRATIVE REMEDIES.  MYERS V. BETHLEHEM CORP., SUPRA,
51, N. 9, AND CASES CITED; NATURAL GAS CO. V. SLATTERY, 302 U.S. 300,
310-311.    HERE, BY THE TERMS OF SEC. 16 OF THE CLAYTON ACT, AS WELL
AS THE PRINCIPLES GENERALLY GOVERNING EQUITABLE RELIEF IN THE FEDERAL
COURTS, THE STATE, IN ORDER TO SECURE THE AID OF EQUITY, MUST SHOW
INJURY CAUSED OR THREATENED BY THE ALLEGED UNLAWFUL ACTS OF WHICH IT
COMPLAINS.  SINCE THE WRONGFUL ACTS RELIED UPON ARE A CONSPIRACY TO
ADOPT AND MAINTAIN UNJUST, UNLAWFUL, EXCESSIVE OR DISCRIMINATORY
FREIGHT RATES, THE ONLY THREATENED INJURY TO THE STATE OR ITS
INHABITANTS, RESULTING FROM THE CONSPIRACY, IS THAT WHICH IS OR MAY BE
CAUSED BY SUCH UNLAWFUL RATES. 

BUT THE INTERSTATE COMMERCE ACT REQUIRES ALL INTERSTATE RAIL CARRIERS,
BEFORE PUTTING INTO EFFECT RATES OR CHARGES FOR INTERSTATE
TRANSPORTATION TO ADOPT AND FILE WITH THE COMMISSION JUST AND
REASONABLE RATES.  SECS. 1(4)(5)(6), 6(1)(3), 49 U.S.C. SECS.
1(4)(5)(6), 6(1)(3).  IT CONFERS ON THE COMMISSION EXCLUSIVE
JURISDICTION TO DETERMINE THE LAWFULNESS OF ALL RATES APPEARING IN THE
FILED TARIFFS, AND AUTHORITY TO SUSPEND RATES, AND TO ORDER THE
RAILROAD TO CEASE AND DESIST FROM CHARGING OTHER THAN THE LAWFUL
RATES.  SECS. 15(1)(7), 49 U.S.C. SEC. 15(1)(7).  THE COMMISSION'S
DETERMINATION IS TO BE IN ACCORDANCE WITH THE "NATIONAL TRANSPORTATION
POLICY," TO DEVELOP AND PRESERVE A NATIONAL TRANSPORTATION SYSTEM, SEE
WISCONSIN RAILROAD COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S. 563,
585; NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 189-190; RAILROAD
COMMISSION V. SOUTHERN PACIFIC CO., 264 U.S. 331, 341-342, AND TO
ESTABLISH AND MAINTAIN "REASONABLE CHARGES  ..., WITHOUT  ...  UNFAIR
OR DESTRUCTIVE COMPETITIVE PRACTICES  ..."  TRANSPORTATION ACT OF 1940,
C. 722, 54 STAT. 899, SEC. 1. 

THE COMMISSION IS DIRECTED TO CONSIDER THE EFFECT OF RATES ON THE
MOVEMENT OF TRAFFIC, AND THE NEED OF ADEQUATE AND EFFICIENT RAILWAY
TRANSPORTATION SERVICE AT LOW COST, AS WELL AS THE CARRIERS' NEED OF
REVENUES SUFFICIENT TO ENABLE THEM TO PROVIDE THAT SERVICE.  INTERSTATE
COMMERCE ACT, AS AMENDED, SEC. 15A, 49 U.S.C. SEC. 15A.  IN FIXING
RATES OR DIVISIONS, THE COMMISSION'S DETERMINATION MAY TAKE ACCOUNT OF
THE FINANCIAL NEEDS OF THE WEAKER CARRIERS, BY GIVING THEM A LARGER
SHARE OF DIVISIONS, OR BY A GENERAL RATE INCREASE.  FN4  NEW ENGLAND
DIVISIONS CASE, SUPRA, 189-195; BEAUMONT, S.L. & W.R. CO. V. UNITED
STATES, 282 U.S. 74; CF. ANN ARBOR R. CO. V. UNITED STATES, 281 U.S.
658.  IT MAY FIX MINIMUM AS WELL AS MAXIMUM RATES, SEC. 15, 49 U.S.C.
SEC. 15, THUS PERMITTING IT TO PREVENT CUT-THROAT COMPETITION AND TO
PROTECT WEAKER COMPETITORS.  IT MAY CONSIDER THE EFFECT OF COMPETING
MEANS OF TRANSPORTATION, OR OTHER RELEVANT CIRCUMSTANCES AND CONDITIONS
ATTENDING THE TRANSPORTATION SERVICE.  SEE BARRINGER & CO. V. UNITED
STATES, 319 U.S. 1, AND AUTHORITIES CITED; AND ON THE CONSIDERATIONS
UPON WHICH THE COMMISSION FIXES RATES, SEE SHARFMAN, THE INTERSTATE
COMMERCE COMMISSION, VOLUME III-B.  THESE AND MANY OTHER CONTROLLING
FACTORS, WHICH ENTER THE COMMISSION'S DETERMINATION OF RATES, MAY BE
IRRELEVANT TO DECISION IN AN ORDINARY SHERMAN ACT CASE, BUT ARE
INEXTRICABLY INTERWOVEN WITH THE PRESENT SUIT, IN WHICH THE STATE MUST
ESTABLISH THAT INJURY TO IT IS THREATENED BY THE CONSPIRACY TO FIX
FREIGHT RATES. 

THE COMMISSION'S ORDERS ARE ENFORCEABLE BY INJUNCTIONS IN THE
DISTRICT COURTS.  SEC. 16(12), 49 U.S.C. SEC. 16(12).  AND THE
ADMINISTRATIVE REMEDY IS EXCLUSIVE OF ANY WHICH MAY BE AFFORDED BY
COURTS, AT LEAST UNTIL THE COMMISSION HAS PASSED UPON THE VALIDITY OF
THE RATES AND CLASSIFICATIONS INVOLVED.  TEXAS & PACIFIC R. CO. V.
ABILENE COTTON OIL CO., 204 U.S. 426; ROBINSON V. BALTIMORE & OHIO R.
CO., 222 U.S. 506; NORTHERN PACIFIC R. CO. V. SOLUM, 247 U.S. 477;
DIRECTOR GENERAL OF RAILROADS V. VISCOSE CO., 254 U.S. 498; MIDLAND
VALLEY R. CO. V. BARKLEY, 276 U.S. 482.  UNTIL THE COMMISSION ACTS, NO
COURT CAN SAY THAT THE RATES ARE NOT LAWFUL AND REASONABLE OR THAT THEY
ARE NOT WITHIN THE LOWEST RANGE OF THE ZONE OF REASONABLENESS.  NOR CAN
EITHER BE ASSUMED, THE BURDEN BEING UPON GEORGIA TO SHOW THAT IT IS
INJURED BY THE ACTS OF WHICH IT COMPLAINS.  AND IF THE PRESENT RATES
ARE AT THE LOWEST POINT OF REASONABLENESS, AS THEY WELL MAY BE, GEORGIA
IS NOT INJURED, FOR IN THAT EVENT NO LOWER RATES COULD BE LAWFULLY
ENFORCED BY THE COMMISSION OR THE COURTS. 

IT IS NOT WITHOUT PERTINENCE TO THE PRESENT APPLICATION THAT THE
STATE OF GEORGIA AND SEVEN OTHER SOUTHERN STATES ARE PARTIES TO
PROCEEDINGS NOW PENDING BEFORE THE INTERSTATE COMMERCE COMMISSION,
DOCKET NO. 28300, CLASS RATE INVESTIGATION, AND DOCKET NO. 28310,
CONSOLIDATED FREIGHT CLASSIFICATION, IN WHICH THE CHAIRMAN OF THE
GEORGIA PUBLIC SERVICE COMMISSION HAS APPEARED AS THE PRINCIPAL WITNESS
ON BEHALF OF THE STATE.  IN THESE PROCEEDINGS THE WITNESS URGED
UNIFORMITY OF RATES IN SOUTHERN AND OFFICIAL CLASSIFICATION
TERRITORIES, IN CONFORMITY TO THE OFFICIAL TERRITORY SYSTEM OF RATES. 
THE WITNESS RELIED ON SEC. 3(1) OF THE ACT, 49 U.S.C. SEC. 3(1), MAKING
IT UNLAWFUL FOR ANY RAIL CARRIER TO MAKE OR GIVE UNDUE OR UNREASONABLE
PREFERENCES OR ADVANTAGE TO ANY PARTICULAR PERSON, LOCALITY OR
PARTICULAR DESCRIPTION OF TRAFFIC; ON SEC. 1(4)(5)(6), 49 U.S.C. SEC.
1(4)(5)(6), REQUIRING COMMON CARRIERS BY RAIL TO ESTABLISH JUST AND
REASONABLE RATES, FARES, CHARGES AND CLASSIFICATIONS; AND ON SEC. 5(B)
OF THE TRANSPORTATION ACT OF 1940, WHICH REQUIRES THE COMMISSION TO
INVESTIGATE THE LAWFULNESS OF RATES BETWEEN POINTS IN DIFFERENT
CLASSIFICATION TERRITORIES AND TO ENTER SUCH ORDERS AS MAY BE
APPROPRIATE FOR THE REMOVAL "OF ANY UNLAWFULNESS WHICH MAY BE FOUND TO
EXIST." 

IT IS PLAIN THAT THE COMMISSION HAS JURISDICTION IN THESE PROCEEDINGS
TO SET ASIDE SUCH UNLAWFUL RATES AS MAY HAVE RESULTED FROM THE
CONSPIRACIES ALLEGED IN THE STATE'S AMENDED COMPLAINT.  IF THE
COMMISSION ORDERS THEM SET ASIDE, NOTHING FURTHER REMAINS FOR ANY COURT
TO DO, FOR REASONS WHICH WILL PRESENTLY MORE FULLY APPEAR, SAVE ONLY AS
IT MAY BE ASKED TO REVIEW OR ENFORCE THE COMMISSION'S ORDER.  WITHOUT
PRIOR RESORT TO THE COMMISSION, GEORGIA DOES NOT AND CANNOT ESTABLISH
IN A COURT PROCEEDING THAT IT IS THREATENED WITH INJURY BY THE
CONSPIRACY OR THAT IT IS NECESSARY FOR IT TO RESORT TO THE COURTS TO
SECURE THE RELIEF WHICH IT SEEKS IN THE PRESENT SUIT. 

THE STATE SEEKS TO AVOID THESE PLAIN PROVISIONS OF THE CLAYTON AND
INTERSTATE COMMERCE ACTS BY ITS INSISTENCE THAT BY ITS AMENDED
COMPLAINT IT ASKS RELIEF NOT FROM THE UNLAWFUL RATES WHICH HAVE BEEN OR
WILL BE ESTABLISHED AS A RESULT OF THE ALLEGED CONSPIRACY, BUT FROM THE
CONSPIRACY ITSELF, OVER WHICH THE INTERSTATE COMMERCE COMMISSION IS
SAID TO HAVE NO JURISDICTION, AND FROM WHICH IT CAN GIVE NO RELIEF.  IN
THE STATE'S BILL OF COMPLAINT, AS ORIGINALLY PRESENTED, IT SOUGHT AN
INJUNCTION SETTING ASIDE THE UNLAWFUL RATES.  EVIDENTLY REALIZING THAT
ALL COURTS ARE PRECLUDED FROM TAKING SUCH ACTION BEFORE THE COMMISSION
HAS DETERMINED THE VALIDITY OF THE RATES, THE STATE SOUGHT TO OVERCOME
THE DIFFICULTY BY AN AMENDMENT TO ITS BILL OF COMPLAINT, PURPORTING TO
WITHDRAW ITS ATTACK ON THE RATES AND ASSAILING THE CONSPIRACY ALONE. 
BUT, AS THE COURT SEEMS TO RECOGNIZE, EVEN THE AMENDED COMPLAINT
CONTAINS ALLEGATIONS AND RAISES ISSUES AS TO WHETHER THE RATES CHARGED
BY THE DEFENDANTS ARE DISCRIMINATORY.  THE COMPLAINT THEREFORE RAISES
QUESTIONS AS TO INTERFERENCE WITH THE PRIMARY JURISDICTION OF THE
INTERSTATE COMMERCE COMMISSION WHICH ARE ESSENTIALLY THE SAME AS THOSE
PRESENTED BY THE ORIGINAL BILL. 

THIS VERBAL MANEUVER, AS A MEANS OF CONFERRING JURISDICTION ON THIS
COURT, IS FUTILE, FOR THE REASON, AS WE HAVE SAID, THAT THE STATE
CANNOT MAINTAIN ITS SUIT IN EQUITY EITHER UNDER SEC. 16 OF THE CLAYTON
ACT OR UPON GENERAL EQUITY PRINCIPLES, WITHOUT ESTABLISHING A
THREATENED INJURY TO IT OR THOSE WHOM IT REPRESENTS.  AND THIS IS
EQUALLY TRUE WHETHER IT SUES AS PARENS PATRIAE OR AS OWNER OF A
RAILROAD, AND A SHIPPER AND CONSIGNEE OF FREIGHT.  THE THREATENED
INJURY CAN ENSUE ONLY FROM THE MAINTENANCE OF THE UNLAWFUL RATES AND
PRACTICES, WHICH ARE SPECIALLY CHARGED TO BE DISCRIMINATORY.  BUT "A
RATE IS NOT NECESSARILY ILLEGAL BECAUSE IT IS THE RESULT OF A
CONSPIRACY IN RESTRAINT OF TRADE IN VIOLATION OF THE ANTI-TRUST ACT. 
WHAT RATES ARE LEGAL IS DETERMINED BY THE ACT TO REGULATE COMMERCE" AND
NOT BY THE ANTITRUST LAWS.  KEOGH V. CHICAGO & NORTHWESTERN R. CO.,
SUPRA, 162.  HENCE IT FOLLOWS IN THIS CASE THAT THE SUIT CAN BE
MAINTAINED ONLY BY SHOWING THAT THE ALLEGED CONSPIRACY HAS RESULTED OR
WILL RESULT IN UNLAWFUL RATES, OR THAT WITHOUT THE CONSPIRACY, LAWFUL
RATES, OTHER THAN THOSE NOW IN FORCE, WOULD PREVAIL, DETERMINATIONS
WHICH CAN BE MADE ONLY BY THE INTERSTATE COMMERCE COMMISSION, AND WHICH
MUST BE MADE BY IT, BEFORE THIS COURT CAN TAKE ANY JUDICIAL ACTION
BASED UPON SUCH DETERMINATIONS. 

WE ASSUME FOR PRESENT PURPOSES THAT A CONSPIRACY TO FIX LAWFUL RATES
MAY BE A VIOLATION OF THE ANTITRUST LAWS, AS WAS INTIMATED IN THE KEOGH
CASE.  BUT AS THIS COURT THERE POINTED OUT, PAGES 161-162, THE REMEDY
IS NOT TO BE HAD BY THE SUIT OF A PRIVATE INDIVIDUAL; "THE GOVERNMENT
MAY HAVE REDRESS BY CRIMINAL PROCEEDINGS UNDER SEC. 3, BY INJUNCTION
UNDER SEC. 4, AND BY FORFEITURE UNDER SEC. 6."  THE STATE CANNOT, MORE
THAN A PRIVATE INDIVIDUAL, BRING A SUIT UNDER THE CLAYTON ACT TO
RESTRAIN THE CONSPIRACY UNLESS IT BE A CONSPIRACY TO DO SOMETHING
INJURIOUS TO THE PLAINTIFF.  THE ONLY SUCH INJURY ALLEGED IN A GREAT
VARIETY OF WAYS IS THAT CAUSED BY UNLAWFUL AND DISCRIMINATORY FREIGHT
RATES ESTABLISHED BY THE CONSPIRACY.  NO SUCH INJURY CAN BE PRESUMED
FROM A CONSPIRACY TO FIX LAWFUL RATES OR TO FIX ANY RATE UNLESS IT CAN
BE KNOWN WITH WHAT NEW RATES THOSE NOW IN FORCE WILL BE REPLACED BY
COMMISSION ACTION. 

FOR THIS AND LIKE REASONS, THIS COURT HAS UNIFORMLY REFUSED TO PERMIT
A PARTY UNDER GUISE OF SUING UNDER THE ANTITRUST LAWS, TO SEEK IN THE
COURTS BY INDIRECTION, DETERMINATIONS WHICH ARE RESERVED FOR THE
COMMISSION IN THE FIRST INSTANCE.  KEOGH V. CHICAGO & NORTHWESTERN R.
CO., SUPRA; CENTRAL TRANSFER CO. V. TERMINAL RAILROAD ASSN., 288 U.S.
469, 476; TERMINAL WAREHOUSE CO. V. PENNSYLVANIA R. CO., 297 U.S. 500;
AND COMPARE UNITED STATES NAVIGATION CO. V. CUNARD S.S. CO., 284 U.S.
474; ARMOUR & CO. V. ALTON R. CO., 312 U.S. 195.  AS THESE CASES SHOW,
THE STATE CANNOT MAKE ITS ASSAULT ON A MATTER SAID NOT TO BE WITHIN THE
JURISDICTION OF THE COMMISSION, WHEN ADJUDICATION MUST TURN UPON
MATTERS WHICH ARE WITHIN ITS JURISDICTION.  HERE THE COURT CANNOT
ASCERTAIN AND ENJOIN THREATENED INJURY RESULTING FROM A CONSPIRACY TO
FIX UNLAWFUL FREIGHT RATES WITHOUT CONSIDERING THEIR LAWFULNESS AND
REASONABLENESS, AND THUS ENCROACHING UPON THE AUTHORITY WHICH CONGRESS
HAS GIVEN TO THE COMMISSION ALONE.  THE CASE IS THEREFORE PECULIARLY
ONE FOR THE APPLICATION OF THE RULE THAT EQUITY WILL NOT UNDERTAKE TO
GIVE RELIEF UNTIL THE PLAINTIFF HAS EXHAUSTED HIS ADMINISTRATIVE
REMEDIES, FOR UNTIL THAT HAS OCCURRED, IT CANNOT BE KNOWN THAT THE
PLAINTIFF IS WITHOUT ADEQUATE RELIEF OR, IN THE EVENT THAT IT IS NOT,
WHAT RELIEF EQUITY MAY APPROPRIATELY GIVE. 

SECOND.  INDEPENDENT OF, BUT SUPPLEMENTING THE CONSIDERATIONS WHICH
INDICATE THE UNMISTAKABLE INTENTION OF CONGRESS THAT A SUIT LIKE THE
PRESENT SHOULD NOT BE MADE THE MEANS OF BREAKING DOWN THE REGULATORY
POWERS OF THE COMMISSION, ARE THE PROVISIONS OF SEC. 16 OF THE CLAYTON
ACT.  AS ALREADY NOTED, A PROVISO TO THE SECTION WITHHOLDS FROM "ANY
PERSON" OTHER THAN THE UNITED STATES THE RIGHT "TO BRING SUIT IN EQUITY
FOR INJUNCTIVE RELIEF AGAINST ANY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF" THE INTERSTATE COMMERCE ACT "IN RESPECT OF ANY MATTER
SUBJECT TO THE REGULATION, SUPERVISION, OR OTHER JURISDICTION OF THE
INTERSTATE STATE COMMERCE COMMISSION." 

WHEN THE CLAYTON ACT WAS ADOPTED IN 1914, THE COMMISSION HAD ALREADY
BEEN GIVEN BROAD POWERS TO FIX AND REGULATE RATES BY THE HEPBURN ACT OF
JUNE 29, 1906, C. 3591, 34 STAT. 584, AND THE MANN-ELKINS ACT OF JUNE
18, 1910, C. 309, 36 STAT. 539.  CONGRESS REALIZED THE DANGER THAT
INDISCRIMINATE SUITS FOR INJUNCTIONS UNDER THE ANTITRUST LAWS, IN MANY
CASES AFFECTING INTERSTATE RAIL CARRIERS, WOULD SUBSTITUTE THE MANY
DISTRICT COURTS FOR THE COMMISSION, THE SINGLE RATE-MAKING AUTHORITY, A
RETROGRESSION FROM THE CONSISTENT CONGRESSIONAL POLICY TO AVOID
CONFUSION AND CONFLICT IN THIS FIELD.  HENCE, WHEN CONGRESS, BY SEC. 16
OF THE CLAYTON ACT, FOR THE FIRST TIME AUTHORIZED PRIVATE SUITORS TO
SEEK RELIEF BY INJUNCTION UNDER THE ANTITRUST LAWS, IT WAS AT PAINS TO
BAR SUCH SUITS AGAINST CARRIERS WITH RESPECT TO ANY MATTERS WITHIN THE
PROVINCE OF THE COMMISSION.  THUS IT WAS THE PURPOSE OF SEC. 16 TO
PRECLUDE THE BREAKDOWN OF THE UNIFIED RATE STRUCTURE ESTABLISHED FOR
THE NATION BY THE COMMISSION, AS WOULD INEVITABLY RESULT FROM THE
MAINTENANCE UNDER THE SHERMAN ACT OF NUMEROUS INDIVIDUAL SUITS, LIKE
THE PRESENT ONE, AFFECTING RATES WHICH CONGRESS HAD LEFT WITHIN THE
COMMISSION'S EXCLUSIVE CONTROL IN THE FIRST INSTANCE. 

THE STATUTORY COMMAND CAN NO MORE BE EVADED THAN MAY THE EXCLUSIVE
JURISDICTION OF THE COMMISSION TO REGULATE RATES, BY SAYING THAT THE
"RELIEF" WHICH GEORGIA SEEKS IS NOT A MATTER SUBJECT TO THE
JURISDICTION OF THE COMMISSION.  SECTION 16 DOES NOT FORECLOSE A SUIT
MERELY WHERE THE "RELIEF" IS A MATTER SUBJECT TO THE JURISDICTION OF
THE COMMISSION.  ITS WORDS ARE MUCH BROADER.  THEY DENY THE REMEDY,
EXCEPT TO THE UNITED STATES, "IN RESPECT OF ANY MATTER SUBJECT TO ...
THE JURISDICTION" OF THE COMMISSION.  AS WE HAVE SAID, GEORGIA CANNOT
SHOW DAMAGE SAVE BY SHOWING THAT THE COMMISSION WOULD APPROVE SOME RATE
STRUCTURE OTHER THAN THAT PRESENTLY EXISTING.  THAT IS CERTAINLY A
"MATTER SUBJECT TO THE  ...  JURISDICTION" OF THE COMMISSION,
SUFFICIENT TO PRECLUDE A SUIT UNDER SEC. 16. 

THE INSEPARABILITY OF EQUITABLE RELIEF AGAINST A RATE-MAKING
CONSPIRACY FROM THAT AGAINST THE UNLAWFULNESS OF THE RATES WHICH ARE OR
MAY BE ITS FRUITS, HAS ALREADY BEEN POINTED OUT.  SUFFICE IT TO SAY
HERE THAT PRECISELY THE ARGUMENT NOW MADE FOR DISREGARDING THE
PROHIBITION OF SEC. 16 WAS REJECTED BY THIS COURT IN A SUIT BROUGHT BY
AN INJURED PRIVATE PARTY TO RESTRAIN AGREEMENTS OR CONSPIRACIES TO DO
ACTS WITHIN THE JURISDICTION OF THE COMMISSION.  CENTRAL TRANSFER CO.
V. TERMINAL RAILROAD ASSN., SUPRA.  AND COMPARE UNITED STATES
NAVIGATION CO. V. CUNARD S.S. CO., SUPRA, WHERE THIS COURT GAVE THE
LIKE CONSTRUCTION TO SEC. 16 OF THE CLAYTON ACT, IN ITS COMPARABLE
RELATION TO THE AUTHORITY OF THE SHIPPING BOARD TO FIX RATES UNDER THE
SHIPPING ACT OF 1916, C. 451, 39 STAT. 728, 46 U.S.C. SECS. 801-842, AS
AMENDED BY THE MERCHANT MARINE ACT OF 1920, C. 250, 41 STAT. 988.    IN
THE CENTRAL TRANSFER CO. CASE IT WAS URGED THAT SEC. 16 OF THE CLAYTON
ACT DID NOT PRECLUDE THE RELIEF SOUGHT, SINCE THE COMMISSION DID NOT
HAVE JURISDICTION OVER THE AGREEMENTS OR CONTRACTS COMPLAINED OF, BUT
ONLY OVER THE ACTS INVOLVED IN THEIR PERFORMANCE.  THIS COURT GAVE THE
CONCLUSIVE ANSWER WHICH WE THINK SHOULD BE GIVEN NOW, THAT NO
INJUNCTION COULD BE EFFECTIVELY GIVEN AGAINST THE AGREEMENT OR
CONSPIRACY WITHOUT IN SOME MANNER RELATING IT TO THE LAWFULNESS OF THE
ACTS DONE OR TO BE DONE IN EXECUTION OF THE AGREEMENT OR CONTRACT, AND
THAT THE DETERMINATION OF THE LAWFULNESS OF THOSE ACTS AND THEIR
REGULATION WERE WITHIN THE EXCLUSIVE JURISDICTION OF THE ADMINISTRATIVE
AGENCY.  IN THAT CASE, AS WELL AS IN THE UNITED STATES NAVIGATION CO.
CASE, IT WAS POINTED OUT THAT ANY OTHER CONSTRUCTION WOULD DEFEAT THE
PLAIN PURPOSE OF SEC. 16 TO PRECLUDE, EXCEPT IN SUITS BY THE
GOVERNMENT, JUDICIAL INTERFERENCE WITH OR PREJUDGMENT OF THE LAWFULNESS
OF MATTERS WHICH CONGRESS HAS INDUBITABLY PLACED WITHIN THE
JURISDICTION OF THE ADMINISTRATIVE AGENCY. 

EQUITABLE RELIEF UNDER SEC. 16 IN THE PRESENT CASE MUST BE DENIED
UPON THE PRINCIPLE IDENTICAL WITH THAT UPON WHICH THE COURT HAS RELIED
IN DENYING THE RIGHT OF THE STATE TO RECOVER DAMAGES IN THE SUIT WHICH
IT PROPOSES HERE.  THE FACT THAT IN THIS BRANCH OF THE CASE, AS IN
KEOGH V. CHICAGO & NORTHWESTERN R. CO., SUPRA, AND TERMINAL WAREHOUSE
CO. V. PENNSYLVANIA R. CO., SUPRA, THE SUIT IS FOR DAMAGES RESULTING
FROM UNLAWFUL RATES, INSTEAD OF AN INJUNCTION RESTRAINING THREATENED
DAMAGE OR INJURY, IS WITHOUT SIGNIFICANCE.  FOR IN EITHER CASE, DAMAGE
CANNOT ENSUE UNLESS THE AGREEMENT OR CONSPIRACY RESULTS IN AN UNLAWFUL
RATE OR PRACTICE OF WHOSE LAWFULNESS THE COMMISSION IS THE SOLE
ARBITER.  AND IN BOTH, THIS COURT HAS HELD THAT THE SUIT CANNOT BE
MAINTAINED WITHOUT FIRST RESORTING TO THE COMMISSION. 

CONGRESS DID NOT SEE FIT BY ITS EXTENSIVE REVISION OF THE INTERSTATE
COMMERCE ACT IN THE TRANSPORTATION ACT OF 1940, TO ALTER THE
APPLICATION OF THE CLAYTON ACT TO THE JURISDICTION OF THE INTERSTATE
COMMERCE COMMISSION.  FOR US TO ALTER IT NOW TO MEET THE EXIGENCIES OF
A PARTICULAR CASE, WHICH PRESENTS NO PLAUSIBLE RELEVANT DIFFERENCES
FROM THOSE WHICH WE HAVE HERETOFORE DECIDED, IS AN ASSUMPTION OF POWER
WHICH ONLY CONGRESS COULD RIGHTLY EXERCISE, AND A POWER WHICH IT HAS
PLAINLY DECLINED TO EXERCISE. 

THIRD.  EVEN ASSUMING, AS THE STATE DOES, AND AS THE COURT IS
PERSUADED, THAT A COURT OF EQUITY COULD BE CALLED UPON TO ENJOIN A
CONSPIRACY TO ESTABLISH RATES IN ANTICIPATION OF A DETERMINATION OF
THEIR UNLAWFULNESS, IT WOULD PLAINLY BE IMPOSSIBLE TO FRAME A DECREE
FOR RELIEF IN ADVANCE OF A DETERMINATION BY THE COMMISSION THAT THE
PRESENT RATES ARE UNLAWFUL, OR THAT THOSE RESULTING FROM THE DECREE
WOULD BE LAWFUL.  COURTS CANNOT ENJOIN, IN GENERAL TERMS, VIOLATIONS OF
THE SHERMAN ACT, WITHOUT SPECIFYING WHAT ACTS ARE TO BE ENJOINED AS
VIOLATIONS, OR AS AIDING OR INDUCING VIOLATIONS.  SWIFT & CO. V. UNITED
STATES, 196 U.S. 375, 396; SWIFT & CO. V. UNITED STATES, 276 U.S. 311,
328; CF. NEW YORK, N.H. & H.R. CO. V. INTERSTATE COMMERCE COMM'N, 200
U.S. 361, 404; LABOR BOARD V. EXPRESS PUBLISHING CO., 312 U.S. 426. 
NOR CAN IT DETERMINE IN ADVANCE WHAT RATES MAY BE LAWFULLY ESTABLISHED
SINCE THE JURISDICTION TO MAKE THAT DETERMINATION IS RESERVED
EXCLUSIVELY TO THE COMMISSION. 

HENCE THE SUGGESTION, WHICH THE COURT HAS BEEN PERSUADED TO ACCEPT,
THAT THIS COURT CAN FIND A WAY TO ENJOIN THE ALLEGED CONSPIRACY TO FIX
RATES, WITHOUT REGARD TO WHAT RATES ARE OR MAY BE AGREED UPON AND
WHETHER THE COMMISSION FINDS THEM TO BE LAWFUL OR UNLAWFUL, IS AN
INVITATION TO A COURSE OF THE VERIEST FUTILITY.  ANY INJUNCTION WHICH
THIS COURT COULD PROPERLY FRAME MUST NOT BE AN IDLE GESTURE.  IT MUST
BE ONE TO PREVENT THE THREATENED INJURY.  AN INJUNCTION TO PREVENT A
CONSPIRACY WITHOUT RELATION TO ITS INJURIOUS CONSEQUENCES COULD NOT
HAVE THAT EFFECT, AND THE INJUNCTION COULD BE RELATED TO THOSE
CONSEQUENCES IN THIS CASE ONLY BY DEFINING RATES AND PRACTICES WHICH
THE COMMISSION HAS NOT DECLARED, AND MAY OR MAY NOT DECLARE, TO BE
UNLAWFUL. 

IT IS FUTILE TO ATTEMPT TO ENJOIN A CONSPIRACY TO FIX RATES BECAUSE
OF THEIR INJURIOUS EFFECT ON THE PLAINTIFF, UNLESS IT IS KNOWN THAT
THEY ARE UNLAWFUL OR WILL BE AND UNLESS THE COURT IS FREE TO DETERMINE
THE POINT.  AND IT IS FUTILE FOR THIS COURT TO ATTEMPT TO PRESCRIBE
WHAT RATES WILL BE LAWFUL SINCE ITS DETERMINATION WILL NOT BE BINDING
UPON THE COMMISSION, AND MAY BE IGNORED BY IT.  INDEED, EVEN AFTER THE
COMMISSION HAS MADE SUCH A DETERMINATION THIS COURT, IN THE FIRST
INSTANCE, IS WITHOUT POWER TO SET IT ASIDE, NORTH DAKOTA V. CHICAGO &
NORTHWESTERN R. CO., SUPRA; TEXAS V. INTERSTATE COMMERCE COMM'N, 258
U.S. 158, 164-165, FOR EXCLUSIVE JURISDICTION TO SET ASIDE AN ORDER OF
THE COMMISSION IS VESTED IN A DISTRICT COURT OF THREE JUDGES UNDER THE
URGENT DEFICIENCIES ACT, C. 32, 38 STAT. 219, AS AMENDED, 28 U.S.C.
SECS. 41(28), 43. 

IT IS THE DUTY OF THIS COURT TO DISMISS AN ORIGINAL SUIT IN WHICH IT
CANNOT MAKE AN EFFECTIVE DECREE.  SEE ARIZONA V. CALIFORNIA, 298 U.S.
558, 572, AND CASES CITED.  A FORTIORI, IT IS ITS DUTY NOT TO ENTERTAIN
SUCH A SUIT. 

THE SOUNDNESS AND THE COMPELLING NECESSITY FOR THE CONSTRUCTION WHICH
THE COURT HAS HITHERTO GIVEN TO SEC. 16 OF THE CLAYTON ACT COULD NOT BE
BETTER ILLUSTRATED AND EMPHASIZED THAN BY REFERENCE TO THE SITUATION
EXHIBITED BY THE CASE WHICH IS NOW BEFORE US.  ANY DECREE, EFFECTIVE TO
PREVENT THE INJURY OF WHICH THE STATE COMPLAINS, WOULD NECESSARILY
RESULT IN FURTHER INEQUALITIES IN RATES, SUCH AS ARE NOW ALLEGED TO
EXIST.  THE COURT CANNOT ENJOIN AS UNLAWFUL THE ALLEGED CONSPIRACY TO
ESTABLISH RATES WITHOUT UNDERTAKING TO SAY WHAT RATES AND PRACTICES ARE
TO BE DEEMED LAWFUL AND WHAT UNLAWFUL.  BUT BY THIS DETERMINATION THE
INTERSTATE COMMERCE COMMISSION WOULD NOT BE BOUND, NOR WOULD THE UNITED
STATES OR ANY RAILROAD OTHER THAN THOSE WHICH ARE PARTIES DEFENDANT. 

ONLY GEORGIA WOULD SECURE RELIEF APPROXIMATING THAT SOUGHT BY THE
BILL.  IF RELIEF ENJOINING THE CONSPIRACY COMPLAINED OF WERE EFFECTIVE
TO RELIEVE THE STATE OF THE INJURY FROM UNLAWFUL RATES TO WHICH IT
OBJECTS, AND WITHOUT WHICH IT COULD NOT MAINTAIN THE SUIT UNDER SEC.
16, THE DECREE MUST RESULT IN A NEW RATE STRUCTURE APPLICABLE TO THE
RAILROADS WHICH ARE PARTIES DEFENDANT.  PREJUDICE AND DISCRIMINATION
WOULD BE CREATED AS TO EVERY OTHER STATE IN SOUTHERN TERRITORY AND AS
TO SHIPPERS AND CONSIGNEES OF FREIGHT IN THOSE STATES WHO WOULD STILL
BE GOVERNED BY THE PUBLISHED TARIFF RATES, AGAINST WHICH ONLY GEORGIA
AND ITS CITIZENS WOULD HAVE SECURED SOME MEASURE OF RELIEF.  THERE
WOULD BE TWO SETS OF RATES BETWEEN THE SOUTH AND THE NORTH, ONE,
EFFECTED AS A RESULT OF THIS COURT'S DECREE, APPLICABLE TO SHIPPERS IN
GEORGIA OVER THE RAILROADS WHICH ARE DEFENDANTS HERE, AND ANOTHER
GOVERNED BY PUBLISHED TARIFFS APPROVED BY THE COMMISSION AND APPLICABLE
TO ALL OTHER SHIPPERS AND RAILROADS IN THE SOUTH.  SINCE ILLEGALITY IN
EXISTING RATES IS AVERRED BECAUSE OF DISPARITY IN THE LEVEL OF RATES IN
TWO RATE-MAKING AREAS, WITH NO ALLEGATION THAT SOUTHERN CARRIERS
RECEIVE MORE THAN A FAIR CHARGE FOR THEIR TRANSPORTATION SERVICE, THE
COURT WOULD BE REQUIRED TO DETERMINE WHETHER THE DISCRIMINATION SHOULD
BE REMOVED BY INCREASING RATES IN OFFICIAL TERRITORY OR ESTABLISHING AN
INTERMEDIATE LEVEL OF NEW RATES, INTERSTATE COMMERCE COMMISSION V.
UNITED STATES, 289 U.S. 385, 392 - A DETERMINATION WHICH COULD BE
ARRIVED AT ONLY BY THE PERFORMANCE BY THIS COURT OF THE LEGISLATIVE
FUNCTION OF RATE MAKING WHICH HAS HITHERTO BEEN RESERVED TO THE
COMMISSION. 

IF ALL THIS IS TO BE AVOIDED BY THE INJUNCTION AGAINST THE ALLEGED
CONSPIRACY, BUT WITHOUT ENJOINING ANY OF ITS ASSERTED EVIL CONSEQUENCES
IN RATE MAKING, THE ISSUE ORIGINALLY TENDERED WOULD, BY THE AMENDMENT
TO THE BILL OF COMPLAINT, SEEM TO AMOUNT TO LITTLE IF ANYTHING MORE
THAN A POLITICAL ISSUE.  THE AMENDED COMPLAINT ALLEGES THAT "THE WRONG
DONE TRANSCENDS THAT EXPERIENCED BY INDIVIDUALS.  FOR AS MEN, FIRMS,
AND CORPORATIONS HAVE COME AND GONE, THE CONSPIRACY HAS CONTINUED OVER
THE DECADES."  WHILE TRIAL UPON THE ORIGINAL COMPLAINT MIGHT HAVE
REDUCED THIS GRIEVANCE TO THE DIMENSIONS OF A CAUSE OF ACTION TO ENJOIN
ILLEGAL FREIGHT RATES INJURIOUS TO THE STATE, IT NOW APPEARS AS THE
GRIEVANCE OF A SECTION OF THE COUNTRY AGAINST AN EXISTING FEDERAL
SYSTEM OF RATE MAKING, WHICH SHOULD BE ADDRESSED TO CONGRESS RATHER
THAN TO THIS COURT. 

THE SUPPORT WHICH THE DEPARTMENT OF JUSTICE LENDS TO GEORGIA'S
CONTENTIONS BY THE BRIEF AMICUS, FILED IN THIS COURT IN BEHALF OF THE
UNITED STATES, REMOVES ANY EVIDENT NEED FOR ENTERTAINING THIS SUIT. 
THE GOVERNMENT IS CHARGED WITH THE ENFORCEMENT OF THE ANTITRUST LAWS,
AND IS AUTHORIZED BY SEC. 4 OF THE SHERMAN ACT AND SEC. 16 OF THE
CLAYTON ACT TO MAINTAIN SUITS FOR THAT PURPOSE, WHICH OTHERS CANNOT
BRING.  IF IT BELIEVES THAT THE ALLEGED CONSPIRACY EXISTS AND SHOULD BE
STOPPED BY THE REMEDIAL ACTION OF COURTS, WITHOUT RESORT TO THE
COMMISSION, THERE WOULD SEEM TO BE NO REASON WHY, AVOIDING THE MANY
TECHNICAL OBSTACLES TO THE PRESENT SUIT, IT SHOULD NOT PROCEED TO
REMEDY IN THE USUAL MANNER THE GRIEVANCES OF THE CITIZENS OF THE UNITED
STATES INCLUDING CITIZENS OF GEORGIA. 

OTHER OBJECTIONS ASIDE, IT SEEMS OBVIOUS THAT THIS COURT CANNOT GIVE
ANY EFFECTIVE RELIEF REMOVING THE THREAT OF INJURY TO THE STATE
RESULTING FROM A RAILROAD RATE CONSPIRACY WITHOUT BREAKING DOWN THE
SYSTEM OF RATE REGULATION BY THE COMMISSION - A SYSTEM WHICH CONGRESS
HAS PAINSTAKINGLY BUILT UP SINCE THE DECISIONS, MORE THAN FORTY-FIVE
YEARS AGO, IN UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S.
290, AND UNITED STATES V. JOINT TRAFFIC ASSN., 171 U.S. 505, WHEN THE
COMMISSION WAS WITHOUT POWER TO PRESCRIBE RATES.  SEE TEXAS & PACIFIC
R. CO. V. ABILENE COTTON OIL CO., SUPRA; TERMINAL WAREHOUSE CO. V.
PENNSYLVANIA R. CO., SUPRA, 513. 

THE REASONING OF THE COURT IS NOT AND CANNOT BE RESTRICTED TO THIS
CASE.  IF GEORGIA MAY PROSECUTE THE PRESENT SUIT, EVERY SHIPPER OR
CONSIGNEE OF FREIGHT WHO ASSERTS INJURY BY A CONSPIRACY RESPECTING
RAILROAD RATES IN VIOLATION OF THE ANTITRUST LAWS MAY MAINTAIN A LIKE
SUIT IN A DISTRICT COURT.  THE PROSECUTION OF SUCH SUITS CANNOT FAIL TO
BRING CHAOS INTO THE FIELD OF INTERSTATE RATE MAKING.  THE ENTRY OF
DECREES FOR THE PLAINTIFFS COULD ONLY MEAN THE BREAKDOWN OF THE UNIFIED
SYSTEM OF FIXING RATES BY COMMISSION ACTION, WHICH CONGRESS HAS
ORDAINED BY THE INTERSTATE COMMERCE ACT.  IT WAS THE PURPOSE OF SEC. 16
OF THE CLAYTON ACT TO PRECLUDE SUCH A BREAKDOWN.  ITS PURPOSE CAN AND
SHOULD BE EFFECTED BY THE REFUSAL OF THIS COURT TO ENTERTAIN THE
PROPOSED SUIT. 

FN1  SOME RELIANCE IS PLACED ON AN ALLEGATION OF THE PROPOSED AMENDED
COMPLAINT, WHICH, IN ITS CONTEXT, IS THAT THE MATTERS OF WHICH
COMPLAINT IS MADE ARE NOT WITHIN THE JURISDICTION OF THE STATE COURTS
OF GEORGIA; BUT THAT HAS NO BEARING ON THE QUESTION WHETHER THEY ARE
WITHIN THE COMPETENCE OF A FEDERAL DISTRICT COURT IN GEORGIA OR IN ANY
OTHER STATE. 

FN2  THESE TWO DEFENDANTS ARE THE SEABOARD AIR LINE RAILWAY CO., AND
THE NASHVILLE, CHATTANOOGA & ST. LOUIS RY., TWO OF THE LARGEST OF THE
SOUTHERN DEFENDANTS. 

FN3  THIS DEFENDANT HAS BEEN OPERATING SINCE 1924 AS THE CLINCHFIELD
RAILROAD COMPANY, UNDER LEASE TO THE ATLANTIC COAST LINE R. CO. AND THE
LOUISVILLE & NASHVILLE R. CO. 

FN4  UNDER THE RECAPTURE CLAUSE OF THE TRANSPORTATION ACT OF 1920, C.
91, 41 STAT. 488, SEC. 422, ADDING SEC. 15A TO THE INTERSTATE COMMERCE
ACT, PROFITS OF CARRIERS IN EXCESS OF A FAIR RETURN WERE HELD IN TRUST
FOR PURPOSES OF IMPROVING RAILROAD SERVICE.  DAYTON-GOOSE CREEK R. CO.
V. UNITED STATES, 263 U.S. 456.  THE RECAPTURE CLAUSE WAS REPEALED BY
THE ACT OF JUNE 16, 1933, C. 91, 48 STAT. 220, SEC. 205.  BUT ITS
UNDERLYING PURPOSE TO PERMIT RATES SUFFICIENT TO PROVIDE AN ADEQUATE
AND EFFICIENT TRANSPORTATION SYSTEM WAS REAFFIRMED BY THE DECLARATION
OF A "NATIONAL TRANSPORTATION POLICY" WHICH THE COMMISSION IS COMMANDED
TO OBSERVE, BY THE TRANSPORTATION ACT OF 1940, C. 722, 54 STAT. 899,
SEC. 1. 
..END :
























PHILLIPS CO. V. WALLING, 324 U.S. 490 


NO. 608.  ARGUED MARCH 2, 1945.  - DECIDED MARCH 26, 1945.  - 144 F.2D
102, AFFIRMED. 


1.  PROVISIONS OF THE FAIR LABOR STANDARDS ACT GRANTING EXEMPTIONS
FROM THE OPERATION OF THE ACT ARE TO BE NARROWLY CONSTRUED.  P. 493. 

2.  SECTION 13(A)(2) OF THE FAIR LABOR STANDARDS ACT, EXEMPTING FROM
THE OPERATION OF THE ACT EMPLOYEES "ENGAGED IN ANY RETAIL  ...
ESTABLISHMENT," HELD INAPPLICABLE TO WAREHOUSE AND CENTRAL OFFICE
EMPLOYEES OF AN INTERSTATE RETAIL CHAIN STORE SYSTEM.  P. 493. 

A.H. PHILLIPS, INC. V. WALLING, ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION, U.S. DEPARTMENT OF LABOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 323 U.S. 704, TO REVIEW THE AFFIRMANCE OF A DECREE, 50
F.SUPP.  749, ENJOINING THE PETITIONER FROM VIOLATING THE FAIR LABOR
STANDARDS ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

1060, 1067, 29 U.S.C. SEC. 213(A)(2), STATES THAT THE WAGE AND HOUR
PROVISIONS OF THE ACT SHALL NOT APPLY WITH RESPECT TO "ANY EMPLOYEE
ENGAGED IN ANY RETAIL OR SERVICE ESTABLISHMENT THE GREATER PART OF
WHOSE SELLING OR SERVICING IS IN INTRASTATE COMMERCE."  THE ISSUE POSED
BY THIS CASE IS WHETHER EMPLOYEES WORKING IN THE WAREHOUSE AND CENTRAL
OFFICE OF AN INTERSTATE GROCERY CHAIN STORE SYSTEM ARE "ENGAGED IN ANY
RETAIL  ...  ESTABLISHMENT" WITHIN THE MEANING OF SEC. 13(A)(2) SO AS
TO BE EXEMPT FROM THE WAGE AND HOUR PROVISIONS. 

THE PETITIONER CORPORATION OPERATES A CHAIN OF 49 RETAIL GROCERY
STORES IN CITIES AND TOWNS WITHIN A 35-MILE RADIUS FROM SPRINGFIELD,
MASSACHUSETTS.  OF THESE STORES, 40 ARE IN MASSACHUSETTS AND 9 ARE IN
CONNECTICUT.  QUITE APART FROM THESE RETAIL STORES, PETITIONER
MAINTAINS A SEPARATE WAREHOUSE AND OFFICE BUILDING IN SPRINGFIELD IN
WHICH WORK THE EMPLOYEES INVOLVED IN THIS CASE. 

THE WAREHOUSE IS THE ONLY ONE MAINTAINED BY PETITIONER AND IT
SERVICES ALL THE 49 STORES.  EXCEPT FOR BREAD, PASTRY AND MILK, WHICH
ARE SECURED FROM LOCAL SOURCES, ALL OF PETITIONER'S MERCHANDISE IS
DELIVERED BY RAIL AND TRUCK TO THE WAREHOUSE WHERE IT IS DIVIDED AND
THEN DELIVERED BY PETITIONER'S TRUCKS TO THE INDIVIDUAL STORES
ACCORDING TO NEED.  ABOUT 80% OF THE MERCHANDISE PASSING THROUGH THE
WAREHOUSE IS RECEIVED FROM OUTSIDE MASSACHUSETTS, WHILE ABOUT 18% OF
THE TOTAL SALES BY DOLLAR VOLUME OF THE MERCHANDISE SHIPPED FROM THIS
WAREHOUSE IS ACCOUNTED FOR BY PETITIONER'S CONNECTICUT STORES.  EACH
WEEK A REGULAR ORDER IS DELIVERED TO EACH STORE FROM THE WAREHOUSE AND
ADDITIONAL DELIVERIES ARE MADE AS REQUIRED.  MERCHANDISE IS SUPPLIED ON
THE BASIS OF REQUISITIONS PREPARED BY INDIVIDUAL STORE MANAGERS,
SUBJECT TO REVISION BY ONE OF THE THREE SUPERINTENDENTS IN THE CENTRAL
OFFICE.  ALL OF PETITIONER'S SALES ARE MADE EXCLUSIVELY AT THE RETAIL
STORES AND NO DELIVERIES TO CUSTOMERS ARE MADE FROM THE WAREHOUSE. 

EMPLOYEES IN THE CENTRAL OFFICE, WHICH IS LOCATED IN THE SAME
BUILDING AS THE WAREHOUSE, PERFORM THE USUAL FUNCTIONS OF CHECKING
INVOICES, PAYING BILLS, MAKING OUT PAYROLLS, KEEPING INVENTORY RECORDS,
CHECKING STORE DELIVERIES AND THE LIKE.  THE VARIOUS EMPLOYEES IN THE
WAREHOUSE AND THE TRUCK DRIVERS HANDLE THE PHYSICAL WORK CONNECTED WITH
THE RECEIPT, STORAGE AND SHIPMENT OF MERCHANDISE.  NONE OF THESE
EMPLOYEES SEGREGATES HIS TIME AS BETWEEN INTERSTATE AND INTRASTATE
SHIPMENTS; BOTH TYPES OF SHIPMENTS ARE HANDLED INDISCRIMINATELY TO AND
FROM THE WAREHOUSE. 

ON THE BASIS OF THESE FACTS, THE ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION SOUGHT TO ENJOIN PETITIONER FROM VIOLATING THE OVERTIME AND
RECORD PROVISIONS OF THE ACT.  THE DISTRICT COURT GRANTED THE
INJUNCTION, HOLDING (1) THAT THE WAREHOUSE AND CENTRAL OFFICE EMPLOYEES
WERE ENGAGED IN INTERSTATE COMMERCE WITHIN THE MEANING OF THE ACT AND
(2) THAT THEY WERE NOT EXEMPTED FROM THE WAGE AND HOUR PROVISIONS BY
REASON OF SEC. 13(A)(2) SINCE THE WAREHOUSE AND OFFICE BUILDING DID NOT
CONSTITUTE A RETAIL ESTABLISHMENT.  50 F.SUPP.  749.  THE FIRST CIRCUIT
COURT OF APPEALS AFFIRMED AS TO BOTH POINTS.  144 F.2D 102. 
PETITIONER, HOWEVER, HAS SOUGHT REVIEW HERE ONLY AS TO THE SECOND
POINT.  AND CERTIORARI WAS GRANTED BECAUSE OF THE CONFLICTING VIEWS
EXPRESSED ON THIS ISSUE BY LOWER APPELLATE COURTS.  FN1 

THE FAIR LABOR STANDARDS ACT WAS DESIGNED "TO EXTEND THE FRONTIERS OF
SOCIAL PROGRESS" BY "INSURING TO ALL OUR ABLE-BODIED WORKING MEN AND
WOMEN A FAIR DAY'S PAY FOR A FAIR DAY'S WORK."  MESSAGE OF THE
PRESIDENT TO CONGRESS, MAY 24, 1934.  ANY EXEMPTION FROM SUCH
HUMANITARIAN AND REMEDIAL LEGISLATION MUST THEREFORE BE NARROWLY
CONSTRUED, GIVING DUE REGARD TO THE PLAIN MEANING OF STATUTORY LANGUAGE
AND THE INTENT OF CONGRESS.  TO EXTEND AN EXEMPTION TO OTHER THAN THOSE
PLAINLY AND UNMISTAKABLY WITHIN ITS TERMS AND SPIRIT IS TO ABUSE THE
INTERPRETATIVE PROCESS AND TO FRUSTRATE THE ANNOUNCED WILL OF THE
PEOPLE.  WE ACCORDINGLY AGREE WITH THE TWO COURTS BELOW THAT THE
EXEMPTION CONTAINED IN SEC. 13(A)(2) IS INAPPLICABLE IN THIS CASE AND
THAT THE EMPLOYEES INVOLVED ARE ENTITLED TO THE BENEFITS OF THE WAGE
AND HOUR PROVISIONS OF THE ACT.  WE HOLD, IN OTHER WORDS, THAT THE
WAREHOUSE AND CENTRAL OFFICE OF PETITIONER'S CHAIN STORE SYSTEM CANNOT
PROPERLY BE CONSIDERED A RETAIL ESTABLISHMENT WITHIN THE MEANING OF
SEC. 13(A)(2). 

IT IS NECESSARY, IN THE FIRST PLACE, TO UNDERSTAND THE TRUE NATURE OF
PETITIONER'S WAREHOUSE AND OFFICE.  THE PRIME FUNCTION OF PETITIONER'S
CHAIN STORE SYSTEM IS TO SELL GROCERIES AT RETAIL.  LIKE MOST LARGE
CHAINS, HOWEVER, PETITIONER HAS FOUND IT ECONOMICALLY FEASIBLE TO
PERFORM AND INTEGRATE BOTH THE RETAIL AND WHOLESALE FUNCTIONS OF THE
GROCERY BUSINESS.  THE INDEPENDENT WHOLESALER OR MIDDLEMAN HAS BEEN
ELIMINATED FROM THE CHANNEL OF DISTRIBUTION OF PETITIONER'S
MERCHANDISE.  PETITIONER NOT ONLY OPERATES THE RETAIL OUTLETS BUT
PURCHASES THE MERCHANDISE IN QUANTITY FROM PRODUCERS, STORES IT IN A
WAREHOUSE AND SYSTEM-ATICALLY ALLOTS IT TO THE INDIVIDUAL STORES. 
CERTAIN ECONOMIES IN OPERATION RESULT FROM THE DIRECT MASS BUYING AND
CENTRALIZED MERCHANDISING CONTROL WHICH WOULD OTHERWISE BE IMPOSSIBLE
TO ACHIEVE.  FN2  A WAREHOUSE AND A CENTRAL OFFICE SUCH AS PETITIONER
MAINTAINS ARE VITAL FACTORS IN THIS INTEGRATION OF THE RETAIL AND
WHOLESALE FUNCTIONS.  THEY ARE NECESSARY INSTRUMENTS FOR THE SUCCESSFUL
PERFORMANCE OF THE WHOLESALE ASPECTS OF A MULTI-FUNCTION BUSINESS OF
THIS TYPE. 

THERE ARE, TO BE SURE, CERTAIN DISTINCTIONS BETWEEN THE WHOLESALE
ACTIVITIES OF A CHAIN STORE SYSTEM AND THOSE OF AN INDEPENDENT
WHOLESALER.  THUS A CHAIN STORE ENTERPRISE DOES NOT CUSTOMARILY SELL
MERCHANDISE IN ITS WAREHOUSE TO RETAILERS OR OTHER WHOLESALE CUSTOMERS
AS DOES AN INDEPENDENT WHOLESALER.  FN3  THE GOODS STORED IN A CHAIN
STORE WAREHOUSE ARE MERELY DISTRIBUTED RATHER THAN SOLD TO THE RETAIL
STORES.  SEE LIGGETT CO. V. LEE, 288 U.S. 517, 537, 538.  BUT THIS AND
OTHER DIFFERENCES THAT CAN BE FOUND ARISE FROM THE FACT THAT THE CHAIN
ORGANIZATIONS HAVE COMPLETELY MESHED THE RETAIL AND WHOLESALE
FUNCTIONS.  MANY OF THE COSTS AND RISKS NORMALLY ASSUMED BY THE
WHOLESALE MERCHANT BECAUSE OF HIS INDEPENDENT AND COMPETITIVE NATURE
ARE ELIMINATED BY THE CHAIN STORE ORGANIZATION.  THE RESULTING SAVINGS
AND SIMPLIFICATIONS SERVE ONLY TO EMPHASIZE SOME OF THE MAJOR EFFECTS
OF THE APPARENT TREND AWAY FROM THE INDEPENDENT MIDDLEMAN IN OUR
ECONOMY OF DISTRIBUTION N4.  THE DISAPPEARANCE OF THE INDEPENDENT
MIDDLEMAN, TOGETHER WITH MANY OF HIS SEPARATE OPERATIONS AND CHARGES,
DOES NOT MEAN, HOWEVER, THAT HIS ESSENTIAL INTERMEDIARY OR WHOLESALE
FUNCTION OF MOVING GOODS FROM PRODUCER TO RETAILER HAS BEEN ABOLISHED. 
IN THIS INSTANCE IT HAS ONLY BEEN TAKEN OVER BY THE RETAILER, ACTING
THROUGH ITS OWN DISTINCT WHOLESALE UNITS.  FN5 

IN A REALISTIC SENSE, THEREFORE, MOST CHAIN STORE ORGANIZATIONS ARE
MERCHANDISING INSTITUTIONS OF A HYBRID RETAIL-WHOLESALE NATURE.  THEY
POSSESS THE ESSENTIAL CHARACTERISTICS OF BOTH THE RETAILER AND THE
WHOLESALER.  THEIR WHOLESALE FUNCTIONS, WHICH ARE INTEGRATED WITH BUT
ARE PHYSICALLY DISTINCT FROM THEIR RETAIL FUNCTIONS, ARE PERFORMED
THROUGH THEIR WAREHOUSES AND CENTRAL OFFICES.  THAT FACT IS THE
ESSENTIAL KEY TO THE PROBLEM PRESENTED BY THIS CASE.  IT SERVES TO MAKE
CLEAR THE INAPPLICABILITY OF SEC. 13(A)(2) TO PETITIONER'S WAREHOUSE
AND CENTRAL OFFICE EMPLOYEES. 

ENGAGED IN A RETAIL OR SERVICE ESTABLISHMENT OPERATING PRIMARILY IN
LOCAL COMMERCE.  PETITIONER CLAIMS THAT ITS RETAIL STORES, WAREHOUSE
AND CENTRAL OFFICE TOGETHER CONSTITUTE A "RETAIL ESTABLISHMENT" WITHIN
THE MEANING OF THIS EXEMPTION.  THE LACK OF MERIT IN THIS CLAIM IS
OBVIOUS.  EVEN IF, AS PETITIONER URGES, THE WORD "ESTABLISHMENT"
REFERRED TO AN ENTIRE BUSINESS OR ENTERPRISE, THE COMBINED RETAIL
WHOLESALE NATURE OF PETITIONER'S INTERSTATE BUSINESS WOULD PREVENT IT
FROM PROPERLY BEING CLASSIFIED AS A LOCAL "RETAIL ESTABLISHMENT."  BUT
IF, AS WE BELIEVE, CONGRESS USED THE WORD "ESTABLISHMENT" AS IT IS
NORMALLY USED IN BUSINESS AND IN GOVERNMENT  FN6  - AS MEANING A
DISTINCT PHYSICAL PLACE OF BUSINESS - PETITIONER'S ENTERPRISE IS
COMPOSED OF 49 RETAIL ESTABLISHMENTS AND A SINGLE WHOLESALE
ESTABLISHMENT.  SINCE THE EMPLOYEES IN QUESTION WORK IN THE WHOLESALE
ESTABLISHMENT, SEC. 13(A)(2) IS PLAINLY IRRELEVANT. 

MOREOVER, IT IS QUITE APPARENT FROM THE SPARSE LEGISLATIVE HISTORY OF
SEC. 13(A)(2) THAT CONGRESS DID NOT INTEND TO EXEMPT AS A "RETAIL
ESTABLISHMENT" THE WAREHOUSE AND CENTRAL OFFICE OF AN INTERSTATE CHAIN
STORE SYSTEM.  FROM THE STANDPOINT OF ITS LEGISLATIVE ANCESTRY, SEC.
13(A)(2) IS THE OFFSPRING OF A MANIFEST DESIRE TO EXCLUDE FROM THE
SCOPE OF THE ACT "BUSINESS IN THE SEVERAL STATES THAT IS OF A PURELY
LOCAL NATURE."  SEN. REP. 884, 75TH CONG., 1ST SESS., P. 5.  CONGRESS
WAS INTERESTED IN EXEMPTING THOSE REGULARLY ENGAGED IN LOCAL RETAILING
ACTIVITIES AND THOSE EMPLOYED BY SMALL LOCAL RETAIL ESTABLISHMENTS,
EPITOMIZED BY THE CORNER GROCERY, THE DRUG STORE AND THE DEPARTMENT
STORE.  FN7  IT FELT THAT RETAIL CONCERNS OF THIS NATURE DO NOT
SUFFICIENTLY INFLUENCE THE STREAM OF INTERSTATE COMMERCE TO WARRANT
IMPOSING THE WAGE AND HOUR REQUIREMENTS ON THEM.  IBID. P. 5.  SECTION
13(A)(2) IS A PART OF THE ACT ONLY BECAUSE OF THE FEAR THAT SEC.
13(A)(1), IN EXEMPTING EMPLOYEES REGULARLY ENGAGED IN A "LOCAL
RETAILING CAPACITY," DID NOT CLEARLY EXCLUDE THOSE EMPLOYED BY LOCAL
RETAILERS WHO ARE SITUATED NEAR STATE LINES AND WHO MAKE OCCASIONAL
INTERSTATE SALES.  WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564,
571. 

HERE PETITIONER'S WAREHOUSE AND CENTRAL OFFICE EMPLOYEES ARE
PERFORMING WHOLESALE DUTIES IN THE VERY MIDST OF THE STREAM OF
INTERSTATE COMMERCE.  THEY CONSTANTLY DEAL WITH BOTH INCOMING AND
OUTGOING INTERSTATE SHIPMENTS.  SUCH TASKS ARE COMPLETELY UNLIKE THOSE
PURSUED BY EMPLOYEES OF THE SMALL LOCAL RETAILERS, WHO WERE THE SOLE
CONCERN OF CONGRESS IN SEC. 13(A)(2).  THESE DUTIES, RATHER, ARE
ECONOMICALLY, FUNCTIONALLY AND PHYSICALLY LIKE THOSE OF THE INDEPENDENT
WHOLESALER'S EMPLOYEES WHO, WHEN ENGAGED IN INTERSTATE COMMERCE, ARE
ADMITTEDLY ENTITLED TO THE BENEFITS OF THE ACT.  WE FAIL TO PERCEIVE IN
SEC. 13(A)(2) OR IN ITS CONGRESSIONAL BACKGROUND ANY INTENT TO
DISCRIMINATE AGAINST CHAIN STORE EMPLOYEES ENGAGED IN WHOLESALE
ACTIVITIES OR TO GIVE TO CHAIN STORE WAREHOUSES A COMPETITIVE ADVANTAGE
IN LABOR COSTS OVER INDEPENDENT WHOLESALERS. 

WE ARE THUS UNABLE TO SAY THAT THE WAREHOUSE AND CENTRAL OFFICE
EMPLOYEES OF PETITIONER'S INTERSTATE CHAIN STORE SYSTEM PLAINLY AND
UNMISTAKABLY FALL WITHIN EITHER THE TERMS OR THE SPIRIT OF THE
EXEMPTION SPECIFIED IN SEC. 13(A)(2).  ECONOMIC FACTS, LEGAL PRINCIPLES
AND CONSISTENT AND THOROUGH ADMINISTRATIVE INTERPRETATION  FN8  OF THE
EXEMPTION ALL COMPEL THE CONCLUSION THAT SEC. 13(A)(2) IS NOT
APPLICABLE TO THE FACTS OF THIS CASE.  WE THEREFORE AFFIRM THE JUDGMENT
OF THE COURT BELOW.  AFFIRMED. 

FN1  THE DECISION BELOW IN THIS CASE IS IN ACCORD WITH THE REASONING
OF WALLING V. AMERICAN STORES CO., 133 F.2D 840(C.C.A.3), BUT IS IN
CONFLICT WITH ALLESANDRO V. C.F. SMITH CO., 136 F.2D 75(C.C.A.6),
WALLING V. L. WIEMANN CO., 138 F.2D 602(C.C.A.7), AND WALLING V. BLOCK,
139 F.2D 268(C.C.A.9). 

FN2  SEE BECKMAN AND NOLEN, THE CHAIN STORE PROBLEM (1938), PP. 48
50. 

FN3  ALTHOUGH PETITIONER'S WAREHOUSE APPARENTLY DOES NO WHOLESALE
BUSINESS WITH INDEPENDENT RETAILERS, MANY CHAIN STORE WAREHOUSES SELL
CERTAIN QUANTITIES OF MERCHANDISE TO OUTSIDE RETAILERS IN ADDITION TO
SUPPLYING THEIR OWN RETAIL OUTLETS.  BECKMAN AND NOLEN, THE CHAIN STORE
PROBLEM (1938), P. 8. 

FN4  DOES DISTRIBUTION COST TOO MUCH?, TWENTIETH CENTURY FUND (1939),
PP. 81-85, 100-110, 178-181, 345-346; BECKMAN AND NOLEN, THE CHAIN
STORE PROBLEM (1938), PP. 7-9, 42-61; 15 ENCYCLOPAEDIA OF THE SOCIAL
SCIENCES (1935), PP. 411-416. 

FN5  "WHILE IT IS FREQUENTLY SAID THAT THE FUNCTION OF WHOLESALING IS
VITAL EVEN THOUGH THE WHOLESALER MAY NOT BE IN EVERY LINE, SOME
AMPLIFICATION OF THIS REMARK SEEMS ADVISABLE.  SOME AGENCY MUST PROVIDE
THE MACHINERY TO MOVE ALL MERCHANDISE FROM THE PRODUCER TO THE
RETAILER.  REGARDLESS OF WHAT THIS FUNCTION IS CALLED, IT IS
ESSENTIALLY THE SAME AS WHOLESALING  ....  CHAIN STORES, ONCE THEY
ASSUME ENOUGH IMPORTANCE TO JUSTIFY A WAREHOUSE, ARE ENGAGED IN
WHOLESALING AS WELL AS RETAILING.  WHATEVER GOODS ARE HANDLED AT RETAIL
OUTLETS MUST BE BOUGHT IN QUANTITY, HANDLED IN THE WAREHOUSE AND
ALLOTTED TO THE INDIVIDUAL STORES IN MUCH THE SAME WAY THAT WHOLESALERS
WOULD SERVE THE INDEPENDENT DEALERS."  CHAMBER OF COMMERCE OF THE
UNITED STATES, NATIONAL WHOLESALE CONFERENCE, REPORT OF COMMITTEE I,
WHOLESALERS' FUNCTIONS AND SERVICES (1929), PP. 13-14.    FN6  PRIOR TO
THE ADOPTION OF THE FAIR LABOR STANDARDS ACT THE TERM "ESTABLISHMENT"
WAS USED IN THE SENSE OF PHYSICAL PLACE OF BUSINESS BY MANY CENSUS
REPORTS, BUSINESS ANALYSES, ADMINISTRATIVE REGULATIONS, AND STATE
TAXING AND REGULATORY STATUTES.  AS APPLIED TO CHAIN STORE SYSTEMS,
"ESTABLISHMENT" THUS DESCRIBED EACH UNIT IN THE CHAIN.  FOR EXAMPLE,
UNDER THE N.R.A. CODES OF FAIR COMPETITION, PREPARED BY COMMITTEES FROM
THE INDUSTRIES CONCERNED, RETAIL STORES OF A GROCERY CHAIN WERE SUBJECT
TO THE RETAIL FOOD AND GROCERY TRADE CODE, WHILE THE CHAIN STORE
WAREHOUSES AND CENTRAL OFFICES WERE TREATED AS SEPARATE
"ESTABLISHMENTS" SUBJECT TO THE WHOLESALE FOOD AND GROCERY TRADE CODE. 
SEE N.R.A. CODES OF FAIR COMPETITION, VOL. IV, PP. 460-1, 470, AND VOL.
V, PP. 5-6, 13-14. 

FN7  THE ORIGINAL LANGUAGE OF SEC. 13(A)(2), INTRODUCED AS AN
AMENDMENT BY REPRESENTATIVE CELLER, APPLIED TO ANY RETAIL "INDUSTRY." 
REPRESENTATIVE CELLER STATED THAT IF THE AMENDMENT WERE ACCEPTED
"RETAIL DRY GOODS, RETAIL BUTCHERING, GROCERS, RETAIL CLOTHING STORES,
DEPARTMENT STORES WILL ALL BE EXEMPT."  SEVERAL OTHER CONGRESSMEN
EXPRESSED THEIR DESIRE TO ASSURE THE EXEMPTION OF "THE CORNER GROCERY
STORE MAN OR THE FILLING STATION MAN" AND "THE LOCAL GROCERYMAN,
DRUGGIST, CLOTHING STORE, MEAT DEALER - ANY MERCHANT IN FACT."  83
CONG. REC. 7299, 7436-7438.  THE EXEMPTION AS IT FINALLY EMERGED FROM
THE JOINT HOUSE-SENATE CONFERENCE COMMITTEE APPLIED TO ANY RETAIL
"ESTABLISHMENT" RATHER THAN "INDUSTRY."  THE USE OF THE WORD
"ESTABLISHMENT" IS MORE APPROPRIATE TO THE SMALL LOCAL RETAILERS WHICH
CONGRESS HAD IN MIND AND CLEARLY INDICATES THAT CONGRESS MEANT BY IT
SOMETHING LESS OR DIFFERENT THAN "INDUSTRY" OR "ENTERPRISE." 

FN8  SEE INTERPRETATIVE BULLETIN NO. 6, UNITED STATES DEPARTMENT OF
LABOR, WAGE AND HOUR DIVISION, ORIGINALLY ISSUED IN DECEMBER, 1938, AND
REVISED IN JUNE, 1941.  SEE ALSO FIRST ANNUAL REPORT OF THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT
OF LABOR (1940), P. 21, INFORMING CONGRESS THAT "EACH PHYSICALLY
SEPARATED STORE OF A CHAIN OF STORES WILL BE CONSIDERED A SEPARATE
'RETAIL ESTABLISHMENT.'  THE WAREHOUSES AND CENTRAL EXECUTIVE OFFICES
OF THE CHAIN ARE NOT 'RETAIL ESTABLISHMENTS.'" 

THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON
CONCUR IN THE RESULT. 

MR. JUSTICE ROBERTS DISSENTS. 
..END :














U.S. V. WILLOW RIVER CO., 324 U.S. 499 


NO. 312.  ARGUED FEBRUARY 8, 9, 1945.  - DECIDED MARCH 26, 1945.  - 101
CT. CLS. 222, REVERSED. 


1.  AN OWNER OF A DAM AND HYDROELECTRIC PLANT NEAR THE CONFLUENCE OF
NAVIGABLE AND NON-NAVIGABLE STREAMS, AND EMBRACING LANDS RIPARIAN TO
THE NAVIGABLE STREAM, IS NOT ENTITLED UNDER THE FIFTH AMENDMENT TO
COMPENSATION FROM THE UNITED STATES FOR A REDUCTION IN THE GENERATING
CAPACITY OF THE PLANT, WHICH RESULTED FROM AN AUTHORIZED NAVIGATION
IMPROVEMENT THAT RAISED THE LEVEL OF THE WATER OF THE NAVIGABLE STREAM
ABOVE ORDINARY HIGH-WATER MARK.  UNITED STATES V. CRESS, 243 U.S. 316,
DISTINGUISHED.  PP. 504, 506. 

2.  THE RESULTING DAMAGE TO THE RIPARIAN OWNER IN THIS CASE DID NOT
CONSTITUTE SUCH A TAKING OF PROPERTY AS IS REQUIRED BY THE FIFTH
AMENDMENT TO BE COMPENSATED.  P. 510. 

UNITED STATES V. WILLOW RIVER POWER CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 323 U.S. 694, TO REVIEW A JUDGMENT FOR THE PLAINTIFF IN A
SUIT AGAINST THE UNITED STATES TO RECOVER COMPENSATION FOR AN ALLEGED
TAKING OF PROPERTY. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE WILLOW RIVER POWER COMPANY HAS BEEN AWARDED $25,000 BY THE COURT
OF CLAIMS AS JUST COMPENSATION FOR IMPAIRED EFFICIENCY OF ITS
HYDROELECTRIC PLANT CAUSED BY THE ACTION OF THE UNITED STATES IN
RAISING THE WATER LEVEL OF THE ST. CROIX RIVER.  REALITY OF DAMAGE AND
REASONABLENESS OF THE AWARD ARE NOT IN ISSUE.  OUR QUESTION IS WHETHER
THE DAMAGE IS THE RESULT OF A "TAKING" OF PRIVATE PROPERTY, FOR WHICH
JUST COMPENSATION IS REQUIRED BY THE FIFTH AMENDMENT. 

WILLOW RIVER IN ITS NATURAL STATE WAS A NON-NAVIGABLE STREAM, WHICH
FLOWED TO WITHIN A FEW RODS OF THE ST. CROIX RIVER, TURNED AND ROUGHLY
PARALLELED IT FOR SOMETHING LESS THAN A MILE, AND THEN EMPTIED INTO THE
ST. CROIX.  MANY YEARS AGO AN EARTH DAM WAS THROWN ACROSS THE WILLOW
ABOUT A HALF-MILE ABOVE ITS NATURAL MOUTH.  A NEW MOUTH WAS CUT ACROSS
THE NARROW NECK WHICH SEPARATED THE TWO RIVERS AND A DAM WAS BUILT
ACROSS THE ARTIFICIAL CHANNEL CLOSE TO OR UPON THE BANKS OF THE ST.
CROIX.  HERE ALSO WAS BUILT A MILL, WHICH OPERATED UNDER THE HEAD
PRODUCED IN THE POOL BY THE TWO DAMS, WHICH OBSTRUCTED BOTH THE NATURAL
AND THE ARTIFICIAL CHANNEL OF THE WILLOW RIVER. 

THESE LANDS AND APPURTENANT RIGHTS WERE ACQUIRED BY THE WILLOW RIVER
POWER COMPANY, A PUBLIC UTILITY CORPORATION OF THE STATE OF WISCONSIN,
AND WERE DEVOTED TO HYDROELECTRIC GENERATION FOR SUPPLY OF THE
NEIGHBORHOOD.  THE PLANT WAS THE LOWEST OF FOUR ON WILLOW RIVER
OPERATED BY THE COMPANY AS AN INTEGRATED SYSTEM.  THE POWERHOUSE WAS
LOCATED ON LAND OWNED BY THE COMPANY ABOVE ORDINARY HIGH WATER OF THE
ST. CROIX.  MECHANICAL ENERGY FOR GENERATION OF ELECTRICAL ENERGY WAS
DEVELOPED BY WATER IN FALLING FROM THE ARTIFICIAL LEVEL OF NON
NAVIGABLE WILLOW RIVER TO THE NATURAL LEVEL OF NAVIGABLE ST. CROIX
RIVER.  THE ELEVATION OF THE HEAD WATER WHEN AT THE CREST OF THE GATES
WAS 689 FEET ABOVE MEAN SEA LEVEL.  THE OPERATING HEAD VARIED BECAUSE
ELEVATION OF THE TAIL WATER WAS GOVERNED BY THE FLUCTUATING LEVEL OF
THE ST. CROIX.  WHEN THAT RIVER WAS LOW, THE MAXIMUM HEAD WAS
DEVELOPED, AND WAS 22.5 FEET; WHEN THE RIVER WAS AT FLOOD STAGE, THE
OPERATING HEAD DIMINISHED TO AS LITTLE AS EIGHT FEET.  THE ORDINARY
HIGH-WATER MARK IS FOUND TO HAVE BEEN 672 FEET, AND THE HEAD AVAILABLE
ABOVE THAT WAS SEVENTEEN FEET. 

THE GOVERNMENT, IN PURSUANCE OF A CONGRESSIONAL PLAN TO IMPROVE
NAVIGATION, IN AUGUST OF 1938 HAD COMPLETED WHAT IS KNOWN AS THE RED
WING DAM IN THE UPPER MISSISSIPPI, INTO WHICH THE ST. CROIX FLOWS. 
THIS DAM WAS SOME THIRTY MILES DOWNSTREAM, BUT IT CREATED A POOL WHICH
EXTENDED UPSTREAM ON THE ST. CROIX BEYOND RESPONDENT'S PLANT AT AN
ORDINARY ELEVATION OF 675 FEET.  THUS THE WATER LEVEL MAINTAINED BY THE
GOVERNMENT IN THE ST. CROIX WAS APPROXIMATELY THREE FEET ABOVE ITS
ORDINARY HIGH-WATER LEVEL AT CLAIMANT'S PROPERTY.  BY THUS RAISING THE
LEVEL AT WHICH TAIL WATERS MUST FLOW OFF FROM CLAIMANT'S PLANT, THE
GOVERNMENT REDUCED THE OPERATING HEAD BY THREE FEET, USING ORDINARY
HIGH WATER AS THE STANDARD, AND DIMINISHED THE PLANT'S CAPACITY TO
PRODUCE ELECTRIC ENERGY.  THE COMPANY WAS OBLIGED TO SUPPLEMENT ITS
PRODUCTION BY PURCHASE FROM OTHER SOURCES. 

LOSS OF POWER WAS MADE THE ONLY BASIS OF THE AWARD.  THE COURT OF
CLAIMS FOUND AS A FACT THAT "THE VALUE OF THE LOSS IN POWER AS A RESULT
OF THE RAISING OF THE LEVEL OF THE ST. CROIX RIVER BY THREE FEET ABOVE
ORDINARY HIGH WATER WAS $25,000 AT THE TIME AND PLACE OF TAKING," AND
IT RENDERED JUDGMENT FOR THAT AMOUNT.  THERE IS NO FINDING THAT ANY
FAST LANDS WERE FLOODED OR THAT OTHER INJURY WAS DONE TO PROPERTY OR
THAT CLAIMANT OTHERWISE WAS DEPRIVED OF ANY USE OF ITS PROPERTY.  IT IS
TRUE THAT THE WATER LEVEL WAS ABOVE HIGH-WATER MARK ON THE ST. CROIX
RIVER BANKS AND ON CLAIMANT'S STRUCTURES, BUT DAMAGE TO LAND AS LAND OR
TO STRUCTURES AS SUCH IS NOT SHOWN TO BE MORE THAN NOMINAL AND ACCOUNTS
FOR NO PART OF THE AWARD.  THE COURT HELD THAT THE GOVERNMENT "HAD A
RIGHT TO RAISE THE LEVEL OF THE RIVER TO ORDINARY HIGH-WATER MARK WITH
IMPUNITY, BUT IT IS LIABLE FOR THE TAKING OR DEPRIVATION OF SUCH
PROPERTY RIGHTS AS MAY HAVE RESULTED FROM RAISING THE LEVEL BEYOND THAT
POINT."  TURNING, THEN, TO ASCERTAIN WHAT PROPERTY RIGHT HAD BEEN
"TAKEN," THE COURT REFERRED TO UNITED STATES V. CRESS, 243 U.S. 316,
329, 330, WHICH IT SAID WAS IDENTICAL IN FACTS, AND HELD IT HAD NO
OPTION BUT TO FOLLOW IT AND THAT "IT RESULTS THAT PLAINTIFF IS ENTITLED
TO RECOVER THE VALUE OF THE DECREASE IN THE HEAD OF ITS DAM."  FN1 

THE FIFTH AMENDMENT, WHICH REQUIRES JUST COMPENSATION WHERE PRIVATE
PROPERTY IS TAKEN FOR PUBLIC USE, UNDERTAKES TO REDISTRIBUTE CERTAIN
ECONOMIC LOSSES INFLICTED BY PUBLIC IMPROVEMENTS SO THAT THEY WILL FALL
UPON THE PUBLIC RATHER THAN WHOLLY UPON THOSE WHO HAPPEN TO LIE IN THE
PATH OF THE PROJECT.  IT DOES NOT UNDERTAKE, HOWEVER, TO SOCIALIZE ALL
LOSSES, BUT THOSE ONLY WHICH RESULT FROM A TAKING OF PROPERTY.  IF
DAMAGES FROM ANY OTHER CAUSE ARE TO BE ABSORBED BY THE PUBLIC, THEY
MUST BE ASSUMED BY ACT OF CONGRESS AND MAY NOT BE AWARDED BY THE COURTS
MERELY BY IMPLICATION FROM THE CONSTITUTIONAL PROVISION.  THE COURT
BELOW THOUGHT THAT DECREASE OF HEAD UNDER THE CIRCUMSTANCES WAS A
"TAKING" OF SUCH A "PROPERTY RIGHT," AND THAT IS THE CONTENTION OF THE
CLAIMANT HERE. 

IT IS CLEAR, OF COURSE, THAT A HEAD OF WATER HAS VALUE AND THAT THE
COMPANY HAS AN ECONOMIC INTEREST IN KEEPING THE ST. CROIX AT THE LOWER
LEVEL.  BUT NOT ALL ECONOMIC INTERESTS ARE "PROPERTY RIGHTS"; ONLY
THOSE ECONOMIC ADVANTAGES ARE "RIGHTS" WHICH HAVE THE LAW BACK OF THEM,
AND ONLY WHEN THEY ARE SO RECOGNIZED MAY COURTS COMPEL OTHERS TO
FORBEAR FROM INTERFERING WITH THEM OR TO COMPENSATE FOR THEIR
INVASION.  THE LAW LONG HAS RECOGNIZED THAT THE RIGHT OF OWNERSHIP IN
LAND MAY CARRY WITH IT A LEGAL RIGHT TO ENJOY SOME BENEFITS FROM
ADJACENT WATERS.  BUT THAT A CLOSED CATALOGUE OF ABSTRACT AND ABSOLUTE
"PROPERTY RIGHTS" IN WATER HOVERS OVER A GIVEN PIECE OF SHORE LAND,
GOOD AGAINST ALL THE WORLD, IS NOT IN THIS DAY A PERMISSIBLE
ASSUMPTION.  WE CANNOT START THE PROCESS OF DECISION BY CALLING SUCH A
CLAIM AS WE HAVE HERE A "PROPERTY RIGHT"; WHETHER IT IS A PROPERTY
RIGHT IS REALLY THE QUESTION TO BE ANSWERED.  SUCH ECONOMIC USES ARE
RIGHTS ONLY WHEN THEY ARE LEGALLY PROTECTED INTERESTS.  WHETHER THEY
ARE SUCH INTERESTS MAY DEPEND ON THE CLAIMANT'S RIGHTS IN THE LAND TO
WHICH HE CLAIMS THE WATER RIGHTS TO BE APPURTENANT OR INCIDENTAL; ON
THE NAVIGABLE OR NON-NAVIGABLE NATURE OF THE WATERS FROM WHICH HE
ADVANTAGES; ON THE SUBSTANCE OF THE ENJOYMENT THEREOF FOR WHICH HE
CLAIMS LEGAL PROTECTION; ON THE LEGAL RELATIONS OF THE ADVERSARY
CLAIMED TO BE UNDER A DUTY TO OBSERVE OR COMPENSATE HIS INTERESTS; AND
ON WHETHER THE CONFLICT IS WITH ANOTHER PRIVATE RIPARIAN INTEREST OR
WITH A PUBLIC INTEREST IN NAVIGATION.  THE CLAIMANT'S ASSERTION THAT
ITS INTEREST IN A POWER HEAD AMOUNTS TO A "PROPERTY RIGHT" IS MADE
UNDER CIRCUMSTANCES NOT PRESENT IN ANY CASE BEFORE CONSIDERED BY THIS
COURT. 

CLAIMANT IS THE OWNER OF LANDS RIPARIAN TO THE ST. CROIX RIVER, AND
UNDER THE LAW OF WISCONSIN, IN WHICH THE LANDS LIE, THE SHORE OWNER
ALSO HAS TITLE TO THE BED OF THE STREAM.  KAUKAUNA CO. V. GREEN BAY
CANAL CO., 142 U.S. 254, 271; JONES V. PETTIBONE, 2 WIS. 308; WILLOW
RIVER CLUB V. WADE, 100 WIS. 86, 76 N.W. 273.  THE CASE SEEMS TO HAVE
BEEN TRIED ON THE THEORY THAT THE COMPANY MAY ALSO CLAIM BECAUSE OF
INTERFERENCE WITH ITS RIGHTS AS A RIPARIAN OWNER ON THE WILLOW.  BUT
THE GOVERNMENT HAS NOT INTERFERED WITH ANY NATURAL FLOW OF THE WILLOW
PAST CLAIMANT'S LANDS.  WHERE IT WAS RIPARIAN OWNER ALONG WILLOW'S
NATURAL CHANNEL CLAIMANT ALREADY HAD CREATED AN ARTIFICIAL LEVEL MUCH
ABOVE THE GOVERNMENT LEVEL.  IF CLAIMANT'S LAND ALONG THE WILLOW WAS AT
ALL AFFECTED IT WAS AT THE POINT WHERE THE LAND WAS RIPARIAN TO THE
ARTIFICIAL CHANNEL, JUST BACK OF THE SHORE LINE OF THE ST. CROIX, WHERE
THE LAND HAD BEEN CUT AWAY TO INSTALL THE DAM AND POWER PLANT AND TO
UTILIZE THE ADVANTAGES OF BEING RIPARIAN TO THE ST. CROIX.  WE THINK
THE CLAIMANT'S MAXIMUM AND ONLY INTEREST IN THE LEVEL OF THE ST. CROIX
ARISES FROM ITS RIPARIAN POSITION THEREON AND IS NOT HELPED BY THE FACT
THAT ITS UTILIZATION OF RIPARIAN LANDS ON THE ST. CROIX INVOLVES
CONDUCTING OVER THEM AT ARTIFICIAL LEVELS WATERS FROM THE WILLOW. 

THE PROPERTY RIGHT ASSERTED TO BE APPURTENANT TO CLAIMANT'S LAND IS
THAT DESCRIBED IN UNITED STATES V. CRESS, 243 U.S. 316, 330, AS "THE
RIGHT TO HAVE THE WATER FLOW AWAY FROM THE MILL DAM UNOBSTRUCTED,
EXCEPT AS IN THE COURSE OF NATURE" AND HELD IN THAT CASE TO BE AN
"INSEPARABLE PART" OF THE LAND.  THE ARGUMENT HERE IS PUT THAT THE
WATERS OF THE ST. CROIX WERE BACKED UP INTO CLAIMANT'S TAILRACE,
CAUSING DAMAGE.  BUT IF A DYKE KEPT THE WATERS OF THE ST. CROIX OUT OF
THE TAILRACE ENTIRELY IT WOULD NOT HELP.  THE WATER FALLING FROM THE
WILLOW MUST GO SOMEWHERE, AND THE HEAD MAY BE PRESERVED ONLY BY HAVING
THE ST. CROIX CHANNEL SERVE AS A RUN-OFF FOR THE TAIL WATERS.  THE RUN
OFF OF CLAIMANT'S WATER MAY BE SAID TO BE OBSTRUCTED BY THE PRESENCE OF
AN INCREASED LEVEL OF GOVERNMENT-IMPOUNDED WATER AT THE END OF
CLAIMANT'S DISCHARGE PIPES.  THE RESULTING DAMAGE MAY BE PASSED ON TO
THE GOVERNMENT ONLY IF THE RIPARIAN OWNER'S INTEREST IN "HAVING THE
WATER FLOW AWAY" UNOBSTRUCTED ABOVE THE HIGH-WATER LINE IS A LEGALLY
PROTECTED ONE. 

THE BASIC DOCTRINE OF RIPARIAN RIGHTS IN FLOWING STREAMS PREVAILS
WITH MINOR VARIATIONS IN THIRTY-ONE STATES OF THE UNION.  FN2  IT
CHIEFLY WAS EVOLVED TO SETTLE CONFLICTS BETWEEN PARTIES, BOTH OF WHOM
WERE RIPARIAN OWNERS.  EQUALITY OF RIGHT BETWEEN SUCH CLAIMANTS WAS THE
ESSENCE OF THE RESULTING WATER LAW.  "THE FUNDAMENTAL PRINCIPLE OF THIS
SYSTEM IS THAT EACH RIPARIAN PROPRIETOR HAS AN EQUAL RIGHT TO MAKE A
REASONABLE USE OF THE WATERS OF THE STREAM, SUBJECT TO THE EQUAL RIGHT
OF THE OTHER RIPARIAN PROPRIETORS LIKEWISE TO MAKE A REASONABLE USE." 
FN3  WITH THIS BASIC PRINCIPLE AS A BENCH MARK, PARTICULAR RIGHTS TO
USE FLOWING WATER ON RIPARIAN LANDS FOR DOMESTIC PURPOSES AND FOR POWER
WERE DEFINED, EACH RIGHT IN EVERY RIPARIAN OWNER SUBJECT TO THE SAME
RIGHT IN OTHERS ABOVE AND TO A CORRESPONDING DUTY TO THOSE BELOW. 

THE DOCTRINE OF RIPARIAN RIGHTS ATTAINED ITS MAXIMUM AUTHORITY ON NON
NAVIGABLE STREAMS.  NO OVERRIDING PUBLIC INTEREST CHILLED THE CONTEST
BETWEEN OWNERS TO GET THE UTMOST IN BENEFITS FROM FLOWING STREAMS. 
PHYSICAL CONDITIONS USUALLY FAVORED PRACTICAL UTILIZATION OF
THEORETICAL RIGHTS.  IN GENERAL NON-NAVIGABLE STREAMS WERE SMALL,
SHIFTED THEIR COURSES EASILY AND WERE NOT STABLE ENOUGH TO SERVE AS
PROPERTY LINES AS LARGER STREAMS OFTEN DO.  THEY WERE SHALLOW, COULD BE
FORDED AND WERE NO GREAT OBSTACLE TO TILLAGE OR PASTURAGE ON TWO SIDES
OF THE STREAM AS A SINGLE OPERATION.  SUCH STREAMS, LIKE THE LANDS,
WERE FENCED IN, AND WHILE THE WATERS MIGHT SHOW RESENTMENT BY CARRYING
AWAY A FEW SPANS OF FENCE IN THE SPRING, THE RIPARIAN OWNER'S RIGHTS IN
SUCH STREAMS WERE ACKNOWLEDGED BY THE CUSTOM OF THE COUNTRYSIDE AS WELL
AS RECOGNIZED BY THE LAW.  IN SUCH SURROUNDINGS AND AS BETWEEN SUCH
OWNERS EQUALITY OF BENEFITS FROM FLOWING WATERS WAS SOUGHT IN THE RULE
THAT EACH WAS ENTITLED TO THEIR NATURAL FLOW, SUBJECT ONLY TO A
REASONABLE RIPARIAN USE WHICH MUST NOT SUBSTANTIALLY DIMINISH THEIR
QUANTITY OR IMPAIR THEIR QUALITY.  IT WAS IN SUCH A STREAM THAT THIS
COURT FOUND CRESS AS A LANDOWNER UNDER THE LAW OF KENTUCKY POSSESSED
"THE RIGHT TO HAVE THE WATER FLOW AWAY FROM THE MILL DAM UNOBSTRUCTED,
EXCEPT AS IN THE COURSE OF NATURE."  243 U.S. 316, 330. 

CRESS OWNED RIPARIAN LANDS AND THE BED AS WELL OF A NON-NAVIGABLE
CREEK IN KENTUCKY.  HE BUILT A DAM WHICH POOLED THE WATER AND DIVERTED
IT TO HIS HEADRACE; AFTER IT TURNED THE WHEEL OF HIS MILL, IT WAS
RETURNED TO THE STREAM BY HIS TAILRACE.  THE GOVERNMENT BUILT A DAM IN
THE NAVIGABLE KENTUCKY RIVER WHICH BACKED UP THE WATER IN THIS NON
NAVIGABLE TRIBUTARY TO A POINT ONE FOOT BELOW THE CREST OF THE MILL
DAM, LEAVING AN UNWORKABLE HEAD.  THE COURT CONCLUDED THAT CRESS WAS
ENTITLED TO COMPENSATION AS FOR A TAKING.  IT FOUND THAT CRESS HAD THE
RIGHT AS A RIPARIAN OWNER TO THE NATURAL FLOW-OFF OF THE WATER IN THIS
NON-NAVIGABLE STREAM.  THE CRESS CASE IS SIGNIFICANT IN THAT IT
MEASURED THE RIGHTS OF A RIPARIAN OWNER AGAINST THE GOVERNMENT IN
IMPROVING NAVIGATION BY THE STANDARD WHICH HAD BEEN EVOLVED TO MEASURE
THE RIGHTS OF RIPARIAN OWNERS AGAINST EACH OTHER.  THE RIGHTS OF THE
GOVERNMENT AT THAT LOCATION WERE HELD TO BE NO GREATER THAN THOSE OF A
RIPARIAN OWNER, AND THEREFORE, OF COURSE, NOT PARAMOUNT TO THE RIGHTS
OF CRESS. 

WE ARE OF OPINION THAT THE CRESS CASE DOES NOT GOVERN THIS ONE AND
THAT THERE IS NO WARRANT FOR APPLYING IT, AS THE CLAIMANT ASKS, OR FOR
OVERRULING IT, AS THE GOVERNMENT INTIMATES WOULD BE DESIRABLE.  THE
GOVERNMENT THERE WAS CHARGED WITH THE CONSEQUENCES OF CHANGING THE
LEVEL OF A NON-NAVIGABLE STREAM; HERE IT IS SOUGHT TO BE CHARGED WITH
THE SAME CONSEQUENCES FROM CHANGING THE LEVEL IN A NAVIGABLE ONE.  IN
THE FORMER CASE THE NAVIGATION INTEREST WAS HELD NOT TO BE A DOMINANT
ONE AT THE PROPERTY DAMAGED; HERE DOMINANCE OF THE NAVIGATION INTEREST
AT THE ST. CROIX IS CLEAR.  AND THE CLAIMANT IN THIS CASE CANNOT STAND
IN THE CRESS SHOES UNLESS IT CAN ESTABLISH THE SAME RIGHT TO HAVE THE
NAVIGABLE ST. CROIX FLOW TAIL WATERS AWAY AT NATURAL LEVELS THAT CRESS
HAD TO HAVE THE NON-NAVIGABLE STREAM RUN OFF HIS TAIL WATERS AT NATURAL
LEVELS.  THIS COULD ONLY BE DONE BY AN EXTENSION OF THE DOCTRINE OF THE
CRESS CASE.  AS WE HAVE ALREADY SAID, IT "MUST BE CONFINED TO THE FACTS
THERE DISCLOSED."  UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 312
U.S. 592, 597. 

ON NAVIGABLE STREAMS A DIFFERENT RIGHT INTERVENES.  WHILE RIPARIAN
OWNERS ON NAVIGABLE STREAMS USUALLY WERE HELD TO HAVE THE SAME RIGHTS
TO BE FREE FROM INTERFERENCES OF OTHER RIPARIAN OWNERS AS ON NON
NAVIGABLE STREAMS, IT WAS RECOGNIZED FROM THE BEGINNING THAT ALL
RIPARIAN INTERESTS WERE SUBJECT TO A DOMINANT PUBLIC INTEREST IN
NAVIGATION.  THE CONSEQUENCES OF THE LATTER UPON THE FORMER HAVE BEEN
THE SUBJECT OF FREQUENT LITIGATION. 

WITHOUT DETAILING THE LONG STRUGGLE BETWEEN SUCH CONFLICTING
INTERESTS ON NAVIGABLE STREAMS, IT MAY POINT OUT THAT BY 1909 THE LINES
HAD BECOME SHARPLY DRAWN AND WERE THEN SUMMARIZED BY A LEADING AUTHOR:
FN4  "THE OLDER AUTHORITIES HOLD THAT SUCH AN OWNER HAS NO PRIVATE
RIGHTS IN THE STREAM OR BODY OF WATER WHICH ARE APPURTENANT TO HIS
LAND, AND, IN SHORT, NO RIGHTS BEYOND THAT OF ANY OTHER MEMBER OF THE
PUBLIC, AND THAT THE ONLY DIFFERENCE IS THAT HE IS MORE CONVENIENTLY
SITUATED TO ENJOY THE PRIVILEGES WHICH ALL THE PUBLIC HAVE IN COMMON,
AND THAT HE HAS ACCESS TO THE WATERS OVER HIS OWN LAND, WHICH THE
PUBLIC DO NOT."  "ACCESS TO AND USE OF THE STREAM BY THE RIPARIAN OWNER
IS REGARDED AS MERELY PERMISSIVE ON THE PART OF THE PUBLIC AND LIABLE
TO BE CUT OFF ABSOLUTELY IF THE PUBLIC SEES FIT TO DO SO."  AND HE
QUOTED ANOTHER WRITER OF STANDING N5:  "THE OWNER OF THE BANK HAS NO
JUS PRIVATUM, OR SPECIAL USUFRUCTUARY INTEREST, IN THE WATER.  HE DOES
NOT, FROM THE MERE CIRCUMSTANCE THAT HE IS THE OWNER OF THE BANK,
ACQUIRE ANY SPECIAL OR PARTICULAR INTEREST IN THE STREAM, OVER ANY
OTHER MEMBER OF THE PUBLIC, EXCEPT THAT, BY HIS PROXIMITY THERETO, HE
ENJOYS GREATER CONVENIENCES THAN THE PUBLIC GENERALLY.  TO HIM,
RIPARIAN OWNERSHIP BRINGS NO GREATER RIGHTS THAN THOSE INCIDENT TO ALL
THE PUBLIC, EXCEPT THAT HE CAN APPROACH THE WATER MORE READILY, AND
OVER LANDS WHICH THE GENERAL PUBLIC HAVE NO RIGHT TO USE FOR THAT
PURPOSE.  BUT THIS IS A MERE CONVENIENCE, ARISING FROM HIS OWNERSHIP OF
THE LANDS ADJACENT TO THE ORDINARY HIGH-WATER MARK, AND DOES NOT
PREVENT THE STATE FROM DEPRIVING HIM ENTIRELY OF THIS CONVENIENCE, BY
ITSELF MAKING ERECTIONS UPON THE SHORE, OR AUTHORIZING THE USE OF THE
SHORE BY OTHERS, IN SUCH A WAY AS TO DEPRIVE HIM OF THIS CONVENIENCE
ALTOGETHER, AND THE INJURY RESULTING TO HIM THEREFROM, ALTHOUGH GREATER
THAN THAT SUSTAINED BY THE REST OF THE PUBLIC, IS 'DAMNUM ABSQUE
INJURIA.'"  ON THE OTHER HAND, THE AUTHOR POINTED OUT, THERE WERE CASES
HOLDING THAT THE RIPARIAN OWNERS ON NAVIGABLE STREAMS "HAVE VALUABLE
RIGHTS APPURTENANT TO THEIR ESTATES, OF WHICH THEY CANNOT BE DEPRIVED
WITHOUT COMPENSATION."  HE CONSIDERED THIS THE BETTER RULE, AND
SUGGESTED THAT THE COURTS INDICATED SOME TENDENCY TO ADOPT IT. 

HOWEVER, IN 1913 THIS COURT DECIDED UNITED STATES V. CHANDLER-DUNBAR
CO., 229 U.S. 53.  IT INVOLVED THE CLAIM THAT WATER POWER INHERENT IN A
NAVIGABLE STREAM DUE TO ITS FALL IN PASSING RIPARIAN LANDS BELONGS TO
THE SHORE OWNER AS AN APPURTENANT TO HIS LANDS.  THE COURT SET ASIDE
QUESTIONS AS TO THE RIGHT OF RIPARIAN OWNERS ON NON-NAVIGABLE STREAMS
AND ALL QUESTIONS AS TO THE RIGHTS OF RIPARIAN OWNERS ON EITHER
NAVIGABLE OR NON-NAVIGABLE STREAMS AS BETWEEN EACH OTHER.  AND IT LAID
ASIDE AS IRRELEVANT WHETHER THE SHORE OWNER DID OR DID NOT HAVE A
TECHNICAL TITLE TO THE BED OF THE RIVER WHICH WOULD PASS WITH IT "AS A
SHADOW FOLLOWS A SUBSTANCE."  IT DECLARED THAT "IN NEITHER EVENT CAN
THERE BE SAID TO ARISE ANY OWNERSHIP OF THE RIVER.  OWNERSHIP OF A
PRIVATE STREAM WHOLLY UPON THE LANDS OF AN INDIVIDUAL IS CONCEIVABLE;
BUT THAT THE RUNNING WATER IN A GREAT NAVIGABLE STREAM IS CAPABLE OF
PRIVATE OWNERSHIP IS INCONCEIVABLE."  229 U.S. AT 62, 69.  THIS COURT
THEN TOOK A VIEW QUITE IN LINE WITH THE TREND OF FORMER DECISIONS THERE
REVIEWED, THAT A STRATEGIC POSITION FOR THE DEVELOPMENT OF POWER DOES
NOT GIVE RISE TO RIGHT TO MAINTAIN IT AS AGAINST INTERFERENCE BY THE
UNITED STATES IN AID OF NAVIGATION.  WE HAVE ADHERED TO THAT POSITION. 
UNITED STATES V. APPALACHIAN ELECTRIC POWER CO., 311 U.S. 377, 424. 
THE CHANDLER-DUNBAR CASE HELD THAT THE SHORE OWNER HAD NO APPURTENANT
PROPERTY RIGHT IN TWO NATURAL LEVELS OF WATER IN FRONT OF ITS LANDS OR
TO THE USE OF THE NATURAL DIFFERENCE BETWEEN AS A HEAD FOR POWER
PRODUCTION.  IN THIS CASE THE CLAIMANT ASSERTS A SIMILAR RIGHT TO ONE
NATURAL LEVEL IN FRONT OF HIS LANDS AND A RIGHT OF OWNERSHIP IN THE
DIFFERENCE BETWEEN THAT AND THE ARTIFICIAL LEVEL OF THE IMPOUNDED WATER
OF THE WILLOW RIVER.  IT CONSTITUTED A PRIVILEGE OR A CONVENIENCE,
ENJOYED FOR MANY YEARS, PERMISSIBLE SO LONG AS COMPATIBLE WITH
NAVIGATION INTERESTS, BUT IT IS NOT AN INTEREST PROTECTED BY LAW WHEN
IT BECOMES INCONSISTENT WITH PLANS AUTHORIZED BY CONGRESS FOR
IMPROVEMENT OF NAVIGATION. 

IT IS CONCEDED THAT THE RIPARIAN OWNER HAS NO RIGHT AS AGAINST
IMPROVEMENTS OF NAVIGATION TO MAINTENANCE OF A LEVEL BELOW HIGH-WATER
MARK, BUT IT IS CLAIMED THAT THERE IS A RIPARIAN RIGHT TO USE THE
STREAM FOR RUN-OFF OF WATER AT THIS LEVEL.  HIGH-WATER MARK BOUNDS THE
BED OF THE RIVER.  LANDS ABOVE IT ARE FAST LANDS AND TO FLOOD THEM IS A
TAKING FOR WHICH COMPENSATION MUST BE PAID.  BUT THE AWARD HERE DOES
NOT PURPORT TO COMPENSATE A FLOODING OF FAST LANDS OR IMPAIRMENT OF
THEIR VALUE.  LANDS BELOW THAT LEVEL ARE SUBJECT ALWAYS TO A DOMINANT
SERVITUDE IN THE INTERESTS OF NAVIGATION AND ITS EXERCISE CALLS FOR NO
COMPENSATION.  UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 312
U.S. 592; WILLINK V. UNITED STATES, 240 U.S. 572.  THE DAMAGE HERE IS
THAT THE WATER CLAIMANT CONTINUES TO BRING ONTO ITS LANDS THROUGH AN
ARTIFICIAL CANAL FROM THE WILLOW RIVER HAS TO LEAVE ITS LANDS AT AN
ELEVATION OF 675 INSTEAD OF AN ELEVATION OF 672 FEET.  NO CASE IS CITED
AND WE FIND NONE WHICH HOLDS A RIPARIAN OWNER ON NAVIGABLE WATERS TO
HAVE SUCH A LEGAL RIGHT.  THE CRESS CASE WHICH THE COURT OF CLAIMS
RELIED UPON DOES NOT SO HOLD AND DOES NOT GOVERN HERE. 

RIGHTS, PROPERTY OR OTHERWISE, WHICH ARE ABSOLUTE AGAINST ALL THE
WORLD ARE CERTAINLY RARE, AND WATER RIGHTS ARE NOT AMONG THEM. 
WHATEVER RIGHTS MAY BE AS BETWEEN EQUALS SUCH AS RIPARIAN OWNERS, THEY
ARE NOT THE MEASURE OF RIPARIAN RIGHTS ON A NAVIGABLE STREAM RELATIVE
TO THE FUNCTION OF THE GOVERNMENT IN IMPROVING NAVIGATION.  WHERE THESE
INTERESTS CONFLICT THEY ARE NOT TO BE RECONCILED AS BETWEEN EQUALS, BUT
THE PRIVATE INTEREST MUST GIVE WAY TO A SUPERIOR RIGHT, OR PERHAPS IT
WOULD BE MORE ACCURATE TO SAY THAT AS AGAINST THE GOVERNMENT SUCH
PRIVATE INTEREST IS NOT A RIGHT AT ALL. 

OPERATIONS OF THE GOVERNMENT IN AID OF NAVIGATION OFTTIMES INFLICT
SERIOUS DAMAGE OR INCONVENIENCE OR INTERFERE WITH ADVANTAGES FORMERLY
ENJOYED BY RIPARIAN OWNERS, BUT DAMAGE ALONE GIVES COURTS NO POWER TO
REQUIRE COMPENSATION WHERE THERE IS NOT AN ACTUAL TAKING OF PROPERTY. 
CF. GIBSON V. UNITED STATES, 166 U.S. 269; SCRANTON V. WHEELER, 179
U.S. 141; BEDFORD V. UNITED STATES, 192 U.S. 217; JACKSON V. UNITED
STATES, 230 U.S. 1; HUGHES V. UNITED STATES, 230 U.S. 24; CUBBINS V.
MISSISSIPPI RIVER COMMISSION, 241 U.S. 351.  SUCH LOSSES MAY BE
COMPENSATED BY LEGISLATIVE AUTHORITY, NOT BY FORCE OF THE CONSTITUTION
ALONE. 

THE UNCOMPENSATED DAMAGES SUSTAINED BY THIS RIPARIAN OWNER ON A
PUBLIC WATERWAY ARE NOT DIFFERENT FROM THOSE OFTEN SUFFERED WITHOUT
INDEMNIFICATION BY OWNERS ABUTTING ON PUBLIC HIGHWAYS BY LAND.  IT HAS
BEEN HELD IN NEARLY EVERY STATE IN THE UNION THAT "THERE CAN BE NO
RECOVERY FOR DAMAGES TO ABUTTING PROPERTY RESULTING FROM A MERE CHANGE
OF GRADE IN THE STREET IN FRONT OF IT, THERE BEING NO PHYSICAL INJURY
TO THE PROPERTY ITSELF, AND THE CHANGE BEING AUTHORIZED BY LAW."  FN6
THIS APPEARS TO BE THE LAW OF WISCONSIN.  SMITH V. EAU CLAIRE, 78 WIS.
457, 47 N.W. 830; WALISH V. MILWAUKEE, 95 WIS. 16, 69 N.W. 818;
MCCULLOUGH V. CAMPBELLSPORT, 123 WIS. 334, 101 N.W. 709; CF. SMITH V.
WASHINGTON, 20 HOW.  135; TRANSPORTATION CO. V. CHICAGO, 99 U.S. 635. 
IT WOULD BE STRANGE IF THE STATE OF WISCONSIN IS FREE TO RAISE AN
ADJACENT LAND HIGHWAY WITHOUT COMPENSATION BUT THE UNITED STATES MAY
NOT EXERCISE AN ANALOGOUS POWER TO RAISE A HIGHWAY BY WATER WITHOUT
MAKING COMPENSATION WHERE NEITHER TAKES CLAIMANT'S LANDS, BUT EACH CUTS
OFF ACCESS TO AND USE OF A NATURAL LEVEL. 

WE HOLD THAT CLAIMANT'S INTEREST OR ADVANTAGE IN THE HIGH-WATER LEVEL
OF THE ST. CROIX RIVER AS A RUN-OFF FOR TAIL WATERS TO MAINTAIN ITS
POWER HEAD IS NOT A RIGHT PROTECTED BY LAW AND THAT THE AWARD BELOW
BASED EXCLUSIVELY ON THE LOSS IN VALUE THEREOF MUST BE REVERSED. 

FN1  101 CT. CLS. 222, CERTIORARI GRANTED, 323 U.S. 694. 

FN2  THE OTHER 17 HAVE SOME FORM OF THE APPROPRIATIVE SYSTEM.  IT IS
BASED ON THE PRINCIPLE OF PRIORITY OR SENIORITY, UNDER WHICH RIGHTS
ACCRUE TO USERS IN THE ORDER IN WHICH THEY FIRST PUT WATERS TO
BENEFICIAL USE.  THE PRINCIPLE IS NOT EQUAL RIGHT OF USE BUT PARAMOUNT
RIGHT IN THE EARLIER USER.  THE USE IS NOT LIMITED TO RIPARIAN TRACTS
BUT MAY BE DIVERTED TO SITES REMOTE FROM THE STREAM, THUS SPREADING THE
BENEFITS BEYOND RIPARIAN LANDS, A CONSIDERABLE ADVANTAGE TO SOME ARID
REGIONS.  THE BENEFICIAL USE IS MORE EXTENSIVE AND INCLUDES USE FOR
IRRIGATION, MINING, MANUFACTURING AS WELL AS DOMESTIC USES, AND THE
WATER MAY BE PERMANENTLY DIVERTED AND THE STREAM THEREBY DIMINISHED TO
AN EXTENT NOT ALLOWABLE UNDER THE RIPARIAN RIGHTS THEORY.  SEE
BANNISTER, INTERSTATE RIGHTS IN INTERSTATE STREAMS IN THE ARID WEST
(1923) 36 HARV. L. REV. 960. 

FN3  BANNISTER, SUPRA, AT 960.  CHOICE OF THE ARID SECTIONS OF THE
COUNTRY OF THE APPROPRIATIVE IN PREFERENCE TO THE RIPARIAN SYSTEM IS
CITED IN CARDOZO, GROWTH OF THE LAW, 118, 119-20, AS AN EXAMPLE OF
"CONSCIOUS DEPARTURE FROM A KNOWN RULE, AND THE DELIBERATE ADOPTION OF
A NEW ONE, IN OBEDIENCE TO THE PROMPTINGS OF A SOCIAL NEED SO OBVIOUS
AND SO INSISTENT AS TO OVERRUN THE ANCIENT CHANNEL AND CUT A NEW ONE
FOR ITSELF." 

FN4  1 LEWIS ON EMINENT DOMAIN (3D ED. 1909) 116, 119. 

FN5  WOOD ON NUISANCES (1ST ED.)  SEC.  592. 

FN6  1 LEWIS ON EMINENT DOMAIN (3D ED. 1909) 210. 

MR. JUSTICE REED CONCURS IN THE RESULT ON THE GROUND THAT THE UNITED
STATES HAS NOT TAKEN PROPERTY OF THE RESPONDENT. 

MR. JUSTICE ROBERTS. 

I THINK THE JUDGMENT OF THE COURT OF CLAIMS SHOULD BE AFFIRMED.  THE
FINDINGS OF FACT BY THAT COURT ARE SUPPORTED BY THE EVIDENCE.  THEY ARE
TO THE FOLLOWING EFFECT. 

THE ST. CROIX RIVER IS NAVIGABLE.  THE WILLOW RIVER IS A NON
NAVIGABLE STREAM EMPTYING INTO THE ST. CROIX AT HUDSON, WISCONSIN.  THE
RESPONDENT HAS CONSTRUCTED SEVERAL DAMS IN THE WILLOW RIVER FOR THE
PURPOSE OF GENERATING POWER.  THE ONE FARTHEST DOWN STREAM IS "LOCATED
NEAR THE CONFLUENCE OF THE WILLOW RIVER AND THE ST. CROIX RIVER IN THE
CITY OF HUDSON, WISCONSIN, ON LAND OWNED BY (RESPONDENT) ABOVE ORDINARY
HIGH WATER OF THE ST. CROIX RIVER."  AT THE TIME OF THE ERECTION OF THE
RESPONDENT'S DAM, ORDINARY HIGH WATER IN THE ST. CROIX AT HUDSON WAS
672 FEET ABOVE SEA LEVEL.  THE RESPONDENT'S DAM RAISED THE WATER LEVEL
IN WILLOW RIVER TO A HEIGHT OF 694.5 FEET ABOVE SEA LEVEL, THUS
AFFORDING A POWER HEAD OF 22.5 FEET.  FN1 

BY THE GOVERNMENT'S ERECTION OF RED WING DAM THE WATER LEVEL IN THE
ST. CROIX AT HUDSON WAS RAISED TO 675.3 FEET ABOVE MEAN SEA LEVEL.  THE
BACKING UP OF THE WATER REDUCED THE POWER HEAD OF RESPONDENT'S DAM BY
APPROXIMATELY THREE FEET, AND DIMINISHED ITS SUPPLY OF POWER
ACCORDINGLY. 

IN THE COURT BELOW, THE UNITED STATES DENIED THAT THE RED WING DAM
HAD RAISED THE LEVEL OF THE ST. CROIX AT HUDSON TO THE EXTENT CLAIMED
BY THE RESPONDENT, AND CONTENDED THAT WILLOW RIVER WAS A NAVIGABLE
STREAM AND THE RESPONDENT'S DAM WAS, THEREFORE, AN OBSTRUCTION IN THE
NAVIGABLE WATERS OF THE UNITED STATES FOR INTERFERENCE WITH OR INJURY
TO WHICH THE UNITED STATES WAS NOT RESPONSIBLE.  THESE CONTENTIONS WERE
OVERRULED AND ARE NOW ABANDONED.  THERE WAS NO CLAIM BY THE GOVERNMENT
THAT ANY PORTION OF THE RESPONDENT'S CONSTRUCTION WAS BELOW ORDINARY
HIGH-WATER MARK IN THE ST. CROIX.  IN FACT THE GOVERNMENT'S ANSWER
ADMITTED AVERMENTS OF THE PETITION THAT THE DAM AND POWER PLANT WERE
LOCATED NEAR A POINT WHERE THE WILLOW RIVER DISCHARGES INTO THE ST.
CROIX RIVER, AND UPON THE RESPONDENT'S PROPERTY DESCRIBED IN THE
PETITION.  THE ANSWER FURTHER ALLEGED THAT THE "DAM SO CONSTRUCTED BY
THE PLAINTIFF NEAR THE POINT WHERE THE WILLOW RIVER DISCHARGES INTO THE
ST. CROIX RIVER  ...  WAS CONSTRUCTED UPON A CONCRETE FOUNDATION
EXTENDING ACROSS OR OCCUPYING THE FULL WIDTH OF THE MOUTH OF A
NAVIGABLE STREAM" (MEANING THE WILLOW RIVER, WHICH THE GOVERNMENT THEN
CLAIMED WAS NAVIGABLE).  THE OPINION OF THE COURT BELOW STATES THAT
RESPONDENT'S TAILRACE EMPTIED INTO THE ST. CROIX RIVER BELOW ORDINARY
HIGH-WATER LEVEL, AND THIS SEEMS TO BE TRUE.  BUT THE FACT IS
IRRELEVANT. 

THE RESPONDENT OWNED THE LAND ON EITHER SIDE OF THE WILLOW RIVER AT
AND ABOVE THE POINT WHERE ITS DAM WAS CONSTRUCTED.  UNDER THE LAW OF
WISCONSIN THE RESPONDENT OWNED THE BED OF WILLOW RIVER, AND BOTH BY
COMMON AND STATUTE LAW OF WISCONSIN IT HAD THE RIGHT TO ERECT AND USE
THE DAM.  FN2 THAT RIGHT WAS PROPERTY; AND SUCH A RIGHT RECOGNIZED AS
PRIVATE PROPERTY BY THE LAW OF A STATE IS ONE WHICH UNDER THE
CONSTITUTION THE FEDERAL GOVERNMENT IS BOUND TO RECOGNIZE.  MONONGAHELA
NAVIGATION CO. V. UNITED STATES, 148 U.S. 312; FOX RIVER PAPER CO. V.
RAILROAD COMMISSION, 274 U.S. 651, 654, 655.  COMPARE FORD & SON V.
LITTLE FALLS FIBRE CO., 280 U.S. 369, 375, 377.    UNLESS UNITED STATES
V. CRESS, 243 U.S. 316, IS TO BE DISREGARDED OR OVERRULED, THE
RESPONDENT IS ENTITLED TO RECOVER FOR THE PROPERTY TAKEN BY THE
REDUCTION OF THE EFFICIENCY OF ITS DAM DUE TO THE RAISING OF THE HIGH
WATER MARK.  IF THE RESPONDENT'S POWER DAM HAD BEEN IN WILLOW RIVER AT
A DISTANCE OF ONE HUNDRED YARDS OR MORE ABOVE THE CONFLUENCE OF THE TWO
STREAMS, THERE CAN BE NO QUESTION THAT THE DECISION IN THE CRESS CASE
WOULD REQUIRE PAYMENT FOR THE INJURY DONE TO ITS WATER POWER.  SINCE
UNDER LOCAL LAW THE OWNER OF THE LAND AND THE DAM WAS ENTITLED TO HAVE
THE WATER OF THE NON-NAVIGABLE STREAM FLOW BELOW HIS DAM AT THE NATURAL
LEVEL OF THE WILLOW RIVER, WHICH IS AFFECTED BY THE NATURAL LEVEL OF
THE ST. CROIX, THE RAISING OF THAT LEVEL BY NAVIGATION WORKS IN THE ST.
CROIX INVADED THE RESPONDENT'S RIGHTS.  THIS IS THE BASIS OF DECISION
IN THE CRESS CASE.  THE FACT THAT THE RESPONDENT'S DAM IS CLOSE TO THE
HIGH-WATER MARK OF THE ST. CROIX RIVER CAN NOT CALL FOR A DIFFERENT
RESULT. 

THE COURT CONCLUDES THAT THE CRESS CASE IS INAPPLICABLE BY IGNORING
THE FINDING OF THE TRIAL COURT THAT THE INCREASE IN LEVEL OF THE ST.
CROIX ABOVE HIGH-WATER MARK HAS DIMINISHED THE HEAD OF RESPONDENT'S DAM
BY THREE FEET.  BUT TO REACH ITS CONCLUSION THE COURT MUST ALSO
DISREGARD THE NATURAL LAW OF HYDRAULICS THAT WATER SEEKS ITS OWN
LEVEL.  AT THE CONFLUENCE OF THE TWO RIVERS AT NORMAL HIGH WATER OF THE
ST. CROIX, BOTH THE ST. CROIX AND THE WILLOW ARE AT THE SAME LEVEL. 
ANY INCREASE IN THE LEVEL OF THE ST. CROIX ABOVE HIGH-WATER MARK MUST
RESULT IN RAISING THE NATURAL LEVEL OF THE WILLOW TO SOME EXTENT.  THE
COURT BELOW HAS FOUND THAT THE INCREASE IN THE LEVEL OF THE ST. CROIX
OPERATES TO DIMINISH THE HEAD AT RESPONDENT'S DAM BY THE SPECIFIED
AMOUNT.  THE FACTS THUS ESTABLISHED ARE IN ALL RELEVANT RESPECTS
PRECISELY THOSE ON THE BASIS OF WHICH THIS COURT SUSTAINED THE RECOVERY
OF DAMAGES IN THE CRESS CASE. 

IF THE FACT IS THAT RESPONDENT DISCHARGES THE WATER FROM ITS POWER
PLANT THROUGH A TAILRACE EXTENDING BELOW HIGH-WATER MARK OF THE ST.
CROIX, THAT FACT IS IRRELEVANT TO THE PROBLEM PRESENTED.  RESPONDENT
CLAIMS, AND THE COURT BELOW HAS SUSTAINED, ONLY THE RIGHT TO HAVE THE
FLOW OF THE WILLOW MAINTAINED AT ITS NATURAL LEVEL.  THAT LEVEL HAS
BEEN INCREASED BY RAISING THE LEVEL OF THE ST. CROIX ABOVE ITS HIGH
WATER MARK.  THE INCREASE IN THE LEVEL OF THE ST. CROIX ABOVE HIGH
WATER MARK HAS OPERATED TO RAISE THE LEVEL BELOW THE RESPONDENT'S DAM
TO AN EXTENT WHICH HAS DAMAGED RESPONDENT BY DIMINISHING THE POWER
HEAD.  TO THAT EXTENT RESPONDENT HAS SUFFERED DAMAGE AND IS ENTITLED TO
RECOVER ON PRINCIPLES ANNOUNCED IN THE CRESS CASE. 

UNITED STATES V. CRESS HAS STOOD FOR TWENTY-EIGHT YEARS AS A
DECLARATION OF THE LAW APPLICABLE IN CIRCUMSTANCES PRECISELY SIMILAR TO
THOSE HERE DISCLOSED.  I THINK IT IS A RIGHT DECISION IF THE UNITED
STATES, UNDER THE CONSTITUTION, MUST PAY FOR THE DESTRUCTION OF A
PROPERTY RIGHT ARISING OUT OF THE LAWFUL USE OF WATERS NOT REGULABLE BY
THE FEDERAL GOVERNMENT BECAUSE THEY ARE NOT NAVIGABLE. 

FN1  THE COURT'S OPINION REFERS TO THE CIRCUMSTANCE THAT THE DAM IN
QUESTION IS NOT BUILT ACROSS THE NATURAL CHANNEL OF WILLOW RIVER. 
NEITHER THE COURT BELOW NOR THE GOVERNMENT RELIES ON THIS PHASE OF THE
CASE, AND I TAKE IT THAT DECISION DOES NOT DEPEND UPON IT.  THE FACTS
ARE THAT THE ST. CROIX RUNS SUBSTANTIALLY FROM NORTH TO SOUTH.  WILLOW
RIVER, WHICH RUNS WESTWARD, FORMERLY TURNED SOUTHWARD A SHORT DISTANCE
FROM THE ST. CROIX AND SUBSTANTIALLY PARALLELED THE LATTER BEFORE
EMPTYING INTO IT.  THE RESPONDENT DAMMED THE NATURAL CHANNEL TO FORM A
POOL JUST EAST OF THE ST. CROIX, AND THEN BUILT ITS POWERHOUSE, DAM AND
SPILLWAY AT A POINT AT THE EDGE OF THE POOL NEAREST THE ST. CROIX. 

FN2  REVISED STATUTES WISCONSIN 1858, CHAP. XLI, SECS. 2, 3; CHAP.
LVI, SEC. 1; WISCONSIN STATS. 1943, SECS. 30.01(2)(3C, 31.07; WISCONSIN
LAWS, PRIVATE & LOCAL, 1866, CH. 122; 1872, CH. 115; MABIE V. MATTESON,
17 WIS. 1; A.C. CONN CO. V. LITTLE SUAMICO LUMBER MFG. CO., 74 WIS.
652, 43 N.W. 660; KAUKAUNA WATER POWER CO. V. GREEN BAY & M. CANAL CO.,
75 WIS. 385, 390-391, 44 N.W. 638; WATER POWER CASES, 148 WIS. 124, 134
N.W. 330; MCDONALD V. APPLE RIVER POWER CO., 164 WIS. 450, 160 N.W.
156; APFELBACHER V. STATE, 167 WIS. 233, 167 N.W. 244. 

THE CHIEF JUSTICE CONCURS IN THIS OPINION. 
..END :



















CONNECTICUT CO. V. POWER COMM'N, 324 U.S. 515 


NO. 189.  ARGUED JANUARY 3, 1945.  - DECIDED MARCH 26, 1945.  - 141 F.2D
14, REVERSED. 


1.  THE DECLARATION OF POLICY IN SEC. 201(A) OF THE FEDERAL POWER ACT,
THAT FEDERAL REGULATION IS "TO EXTEND ONLY TO THOSE MATTERS WHICH ARE
NOT SUBJECT TO REGULATION BY THE STATES," IS RELEVANT IN RESOLVING
AMBIGUITY IN SPECIFIC PROVISIONS OF THE ACT WHICH PURPORT TO EFFECTUATE
THAT POLICY.  P. 527. 

2.  IN THE PROVISION OF SEC. 201(B) OF THE FEDERAL POWER ACT, THAT
THE COMMISSION SHALL HAVE JURISDICTION OVER ALL FACILITIES FOR THE
TRANSMISSION OR WHOLESALE OF ELECTRIC ENERGY IN INTERSTATE COMMERCE,
"BUT SHALL NOT HAVE JURISDICTION, EXCEPT AS SPECIFICALLY PROVIDED IN
THIS PART AND THE PART NEXT FOLLOWING, OVER FACILITIES USED  ...  IN
LOCAL DISTRIBUTION," THE PHRASE "FACILITIES USED IN LOCAL DISTRIBUTION"
DELIMITS THE JURISDICTION OF THE COMMISSION AND ESTABLISHES A LEGAL
STANDARD WHICH MUST BE OBSERVED IN DETERMINING WHETHER A COMPANY IS A
"PUBLIC UTILITY" UNDER THE ACT.  P. 530. 

3.  THE EXEMPTION FROM THE COMMISSION'S JURISDICTION OF "FACILITIES
USED IN LOCAL DISTRIBUTION" IS NOT LIMITED TO FACILITIES WHICH
DISTRIBUTE NO OUT-OF-STATE ENERGY.  FACILITIES MAY CARRY OUT-OF-STATE
ENERGY EXCLUSIVELY AND STILL BE EXEMPT UNDER THE ACT.  THE TEST IS
WHETHER THEY ARE LOCAL DISTRIBUTION FACILITIES.  P. 531. 

4.  THE JURISDICTION OF THE COMMISSION UNDER THE FEDERAL POWER ACT TO
REGULATE ACCOUNTING PRACTICES EXTENDS ONLY TO COMPANIES WHICH ARE
"PUBLIC UTILITIES" UNDER THE ACT, I.E., COMPANIES WHICH OWN OR OPERATE
FACILITIES THAT ARE SUBJECT TO THE JURISDICTION OF THE COMMISSION.  P.
531. 

5.  THE COURT BELOW HAVING CONSIDERED IRRELEVANT THE APPROPRIATE TEST
OF THE COMMISSION'S JURISDICTION UNDER THE ACT, ITS INQUIRY ON REVIEW
DID NOT PROCEED UNDER A CORRECT RULE OF LAW AND ITS JUDGMENT MUST BE
REVERSED.  P. 532. 

6.  WHERE A FEDERAL AGENCY IS AUTHORIZED TO INVOKE AN OVERRIDING
FEDERAL POWER EXCEPT IN CERTAIN PRESCRIBED SITUATIONS AND THEN TO LEAVE
THE PROBLEM TO TRADITIONAL STATE CONTROL, THE EXISTENCE OF FEDERAL
AUTHORITY TO ACT SHOULD APPEAR AFFIRMATIVELY AND NOT REST ON INFERENCE
ALONE.  P. 532. 

7.  THE BUSINESS OF LOCAL DISTRIBUTION OF ELECTRIC ENERGY DOES NOT AS
A MATTER OF LAW EXCLUDE THE PROCESS OF REDUCING OUT-OF-STATE ELECTRIC
ENERGY FROM HIGH TO LOW VOLTAGE IN SUBDIVIDING IT TO SERVE ULTIMATE
CONSUMERS.  P. 534. 

8.  UPON THE RECORD IN THIS CASE, IT IS DOUBTFUL WHETHER THE
COMMISSION APPLIED THE CORRECT LAW, AND THE CASE SHOULD BE REMANDED TO
THE COMMISSION FOR APPROPRIATE JURISDICTIONAL FINDINGS.  THIS COURT
DOES NOT UNDERTAKE TO DECIDE AS AN ORIGINAL MATTER WHETHER THE
FACILITIES IN QUESTION ARE FACILITIES WHICH SUBJECT THE COMPANY TO THE
ACT, NOR WHETHER THERE WAS BASIS FOR JURISDICTION OF THE COMMISSION
DURING SOME PAST PERIOD BY REASON OF THE COMPANY'S OPERATION OF
FACILITIES SINCE ABANDONED.  P. 534. 

9.  THE JURISDICTION OF THE COMMISSION UNDER THE FEDERAL POWER ACT,
OVER FACILITIES FOR THE TRANSMISSION OF ELECTRIC ENERGY IN INTERSTATE
COMMERCE WHICH ARE NOT USED IN LOCAL DISTRIBUTION, DOES NOT DEPEND UPON
WHETHER ANY PARTICULAR VOLUME OR PROPORTION OF INTERSTATE ENERGY IS
INVOLVED; AND SUCH A JURISDICTIONAL LIMITATION IS NOT TO BE SUPPLIED BY
CONSTRUCTION.  P. 536. 

CONNECTICUT LIGHT & POWER CO. V. FEDERAL POWER COMMISSION. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 323 U.S. 687, TO REVIEW A JUDGMENT SUSTAINING AN ORDER OF
THE FEDERAL POWER COMMISSION REQUIRING THE PETITIONER TO COMPLY WITH
THE UNIFORM SYSTEM OF ACCOUNTS PRESCRIBED BY THE COMMISSION UNDER THE
FEDERAL POWER ACT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL POWER COMMISSION HAS ASSERTED JURISDICTION TO REGULATE
THE ACCOUNTING PRACTICES OF THE CONNECTICUT LIGHT AND POWER COMPANY. 
THE FEDERAL POWER ACT AS AMENDED IN 1935, 49 STAT. 838, 16 U.S.C. SEC.
792 ET SEQ., DECLARES A CONGRESSIONAL POLICY CONCERNING THE BUSINESS OF
TRANSMITTING AND SELLING ELECTRIC ENERGY FOR ULTIMATE DISTRIBUTION TO
THE PUBLIC, AND STATES THAT REGULATION OF "THAT PART OF SUCH BUSINESS
WHICH CONSISTS OF 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."  SEC. 201(A), 49 STAT. 847, 16 U.S.C. SEC.
824(A). 

THE COMPANY, INCORPORATED BY CONNECTICUT, SERVING CUSTOMERS ONLY IN
CONNECTICUT AND OWNING NO UTILITIES PROPERTY OUTSIDE OF THAT STATE, IS
COMPREHENSIVELY REGULATED BY THE CONNECTICUT PUBLIC UTILITIES
COMMISSION IN ACCOUNTING PRACTICES AS IN MANY OTHER MATTERS, AND IT
CHALLENGES THE JURISDICTION OF THE FEDERAL POWER COMMISSION. 

THE STATE OF CONNECTICUT, APPEARING AMICUS CURIAE, THROUGH ITS
ATTORNEY GENERAL AVERS THAT THIS ASSUMPTION OF JURISDICTION BY THE
FEDERAL COMMISSION "REPRESENTS AN UNWARRANTED AND ILLEGAL INVASION OF
THE POWERS OF THE STATE TO REGULATE ITS LOCAL DISTRIBUTING COMPANY,
WHICH POWERS WERE CLEARLY TO BE PRESERVED TO THE STATE UNDER THE
PROVISIONS OF THE FEDERAL POWER ACT."  THE CONNECTICUT PUBLIC UTILITIES
COMMISSION JOINS WITH THE NATIONAL ASSOCIATION OF RAILROAD AND
UTILITIES COMMISSIONERS, ALSO APPEARING AS AMICI CURIAE, AND THEY
CONTEND THAT THE FEDERAL POWER COMMISSION'S ORDER REGULATING ACCOUNTING
PRACTICES EXCEEDS ANY AUTHORITY GIVEN BY THE FEDERAL POWER ACT AND
INTRUDES UPON THE FIELD WHICH THAT ACT EXPRESSLY RESERVED TO LOCAL
REGULATION. 

THE BASIC FACTS ARE NOT SERIOUSLY IN DISPUTE.  THE COMPANY FOR SOME
TIME PRIOR TO AUGUST 26, 1935, THE EFFECTIVE DATE OF THE FEDERAL POWER
ACT, OPERATED AS A MEMBER OF THE CONNECTICUT VALLEY POWER EXCHANGE, AN
INTERSTATE POWER POOL WHICH INTERCHANGED ENERGY AMONG CERTAIN SYSTEMS
IN NEW YORK, MASSACHUSETTS, AND CONNECTICUT.  HAD SUCH OPERATION
CONTINUED, THE COMPANY WOULD BE SUBJECT TO THE ACT AND TO THE
COMMISSION'S ORDER.  TWO DAYS BEFORE ITS EFFECTIVE DATE AND FRANKLY FOR
THE PURPOSE OF AVOIDING FEDERAL REGULATION THE COMPANY REARRANGED ITS
OPERATIONS WITH INTENT TO CUT EVERY CONNECTION AND DISCONTINUE EVERY
FACILITY WHOSE CONTINUED OPERATION WOULD RENDER IT SUBJECT TO THE
FEDERAL POWER COMMISSION'S CONTROL.  THE COMMISSION CONCEDED IN ITS
OPINION AND THE GOVERNMENT ADMITS HERE THE COMPANY'S RIGHT TO DO SO.
FN1  BUT THE COMMISSION SAID PETITIONER'S EFFORT WAS "ONLY A GESTURE,"
FOR WHILE IT CUT CERTAIN CONNECTIONS "IT DID NOT CUT OTHER
INTERCONNECTIONS OVER WHICH INTERSTATE ENERGY FLOWED."  OF THOSE
FACILITIES WHICH THE COMMISSION HELD SUBJECTED THE COMPANY TO THE POWER
ACT AT THE TIME IT BECAME EFFECTIVE, THE COMPANY HAS SINCE DIVESTED
ITSELF OF ALL BUT ONE, AND ON THAT ONE THE COMMISSION RESTS ITS PRESENT
JURISDICTION TO CONTROL PETITIONER'S ACCOUNTING.  BUT IT ALSO CLAIMS
THAT ITS ACCOUNTING ORDERS WERE ENTITLED TO OBEDIENCE UP TO THE TIME OF
THE ABANDONMENT OF THE OTHER FACILITIES AND BECAUSE OF THEM. 

THE FACILITIES ON WHICH JURISDICTION IS PREDICATED ARE FOR TWO
GENERAL TYPES OF OPERATION, ONE BEING USED IN RECEIPT OF INTERSTATE
POWER, THE OTHER FOR TRANSMISSION OF ENERGY SOLD TO A MUNICIPALITY
WHICH IN TURN SOLD SOME PART OF IT FOR EXPORT FROM THE STATE. 

THE ONLY PRESENTLY EXISTING FACILITIES SAID TO CONFER JURISDICTION
ARE AT BRISTOL.  HERE THE PETITIONING COMPANY PURCHASES ENERGY FROM THE
CONNECTICUT POWER COMPANY, WHICH DESPITE A CONFUSING SIMILARITY OF NAME
IS AN ENTIRELY SEPARATE AND UNAFFILIATED CONCERN.  THE PETITIONING
COMPANY RECEIVES POWER AT 66,000 VOLTS FROM THE LINES OF THE
CONNECTICUT POWER COMPANY OVER A SHORT TAP LINE, OWNED BY THE
CONNECTICUT POWER COMPANY, WHICH LEADS TO PETITIONER'S SUBSTATION. 
THERE THE ENERGY IS STEPPED DOWN TO 4,600 AND 13,800 VOLTS AND
TRANSMITTED THENCE OVER MANY CIRCUITS TO CONSUMERS IN AND AROUND
BRISTOL.  THE SUBSTATION INCLUDES ALL OF THE USUAL EQUIPMENT, LIGHTNING
ARRESTERS, DISCONNECTS, OIL CIRCUIT BREAKERS, BUSSES, STEP-DOWN
TRANSFORMERS, AND APPURTENANT STRUCTURES OF AN OUTDOOR SUBSTATION; AND
IN THE SUBSTATION BUILDING A SYNCHRONOUS CONDENSER IS OWNED AND
OPERATED, AS REQUIRED BY THE SUPPLY CONTRACT, TO MAINTAIN THE POWER
FACTOR. 

WHAT IS CALLED THE EAST HAMPTON CONNECTION, SEVERED JULY 1, 1939,
CONSISTED OF FACILITIES BY WHICH THE PETITIONER RECEIVED ENERGY FROM
THE CONNECTICUT POWER COMPANY AT 13,800 VOLTS AND TRANSMITTED IT
SEVERAL MILES TO ITS LEESVILLE SUBSTATION WHERE IT WAS REDUCED TO 4,600
VOLTS AND TO OTHER SUBSTATIONS WHERE IT WAS REDUCED TO 2,300 VOLTS AND
SUPPLIED TO CUSTOMERS.  WHAT IS REFERRED TO AS THE TORRINGTON-WINSTED
DISTRICT CONNECTION, DISCONTINUED IN JUNE OF 1941, WAS DIFFERENTLY
OPERATED.  ENERGY WAS PURCHASED FROM THE TORRINGTON ELECTRIC LIGHT
COMPANY, WHICH IN TURN HAD PURCHASED IT FROM THE CONNECTICUT POWER
COMPANY.  DELIVERY WAS ACCEPTED BY PETITIONER AT THE BUS BAR OF THE
TORRINGTON COMPANY AT LOW VOLTAGE, 2,300 VOLTS, PETITIONER MAINTAINED A
SUBSTATION WHICH STEPPED THIS VOLTAGE UP TO 27,600, AT WHICH IT WAS
TRANSMITTED ABOUT TEN MILES OVER ITS LINES TO A SUBSTATION AT WINSTED
WHERE FACILITIES WERE OPERATED TO LOWER THE VOLTAGE TO 4,600, WHENCE IT
WAS PUT ON DISTRIBUTION LINES. 

THE COMMISSION HELD IN ALL THREE INSTANCES THAT SUCH FACILITIES OF
PETITIONER WERE "FOR THE TRANSMISSION OF ELECTRIC ENERGY  ...  AS
DISTINGUISHED FROM LOCAL DISTRIBUTION THEREOF."  IT FOUND THAT THE
ENERGY RECEIVED FROM THE CONNECTICUT POWER COMPANY AND TORRINGTON
COMPANY "REGULARLY, FREQUENTLY AND FOR SUBSTANTIAL PERIODS OF TIME
INCLUDED ELECTRIC ENERGY IN SUBSTANTIAL AMOUNTS TRANSMITTED FROM
MASSACHUSETTS."  HENCE IT CONCLUDED PETITIONER OWNED FACILITIES FOR
TRANSMISSION OF ENERGY IN INTERSTATE COMMERCE AND WAS A "PUBLIC
UTILITY" UNDER ITS JURISDICTION BY VIRTUE OF THE ACT. 

THE OTHER TYPE OF OPERATION ON WHICH IT PREDICATED JURISDICTION WAS
TERMINATED IN FEBRUARY 1941.  IT CONSISTED OF SALE OF ENERGY AT
WHOLESALE TO THE BOROUGH OF GROTON, WHICH OPERATED A MUNICIPAL
DISTRIBUTION PLANT.  THE BOROUGH, WITH KNOWLEDGE OF THE COMPANY, RESOLD
A PORTION OF THIS ENERGY TO A CORPORATION WHICH TRANSMITTED IT TO
FISHERS ISLAND, A SMALL ISLAND OFF CONNECTICUT SHORE BUT TERRITORY OF
NEW YORK.  THERE IT WAS DISTRIBUTED TO THAT SMALL COMMUNITY AT RETAIL. 
WHEN THE GROTON CONTRACT EXPIRED IN 1940 PETITIONER REFUSED TO RENEW IT
UNLESS THE BOROUGH DISCONTINUED SALES OF ENERGY DESTINED FOR FISHERS
ISLAND.  THIS CHANGE WAS REQUIRED BY THE COMPANY AVOWEDLY TO ELIMINATE
FLOW OF ITS ENERGY TO NEW YORK AND THUS TO REMOVE ONE OF THE GROUNDS ON
WHICH THE COMMISSION HAS ASSERTED JURISDICTION. 

THE COMMISSION HELD THAT FROM THE EFFECTIVE DATE OF THE ACT TO
FEBRUARY 28, 1941, FACILITIES OWNED BY THE COMPANY WERE USED TO CONVEY
ELECTRIC ENERGY TO THE BOROUGH OF GROTON "FOR THE TRANSMISSION AND SALE
AT WHOLESALE OF ELECTRIC ENERGY IN INTERSTATE COMMERCE" AND THAT SUCH
FACILITIES WERE FOR TRANSMISSION OF SUCH ENERGY "AS DISTINGUISHED FROM
LOCAL DISTRIBUTION THEREOF."  HENCE THE COMPANY WAS HELD TO HAVE BEEN A
PUBLIC UTILITY DURING THE PERIOD OF SUCH OPERATION AND SUBJECT FOR THAT
PERIOD TO THE JURISDICTION OF THE COMMISSION. 

IT IS NOT DENIED, ALTHOUGH THE COMMISSION'S FINDINGS AND OPINION MAKE
NO MENTION OF THE FACT AND APPEAR TO HAVE GIVEN IT NO WEIGHT, THAT THE
PREDOMINANT CHARACTERISTIC OF THE COMPANY'S OVER-ALL OPERATION IS THAT
OF A LOCAL AND INTRASTATE SERVICE.  IT SERVES ONE HUNDRED SEVEN TOWNS,
CITIES, AND BOROUGHS OF CONNECTICUT WITH A TOTAL POPULATION OF ABOUT
660,000 AND IN ADDITION SUPPLIES SUBSTANTIALLY ALL THE POWER USED BY
LOCAL COMPANIES WHICH SERVE COMMUNITIES OF CONNECTICUT HAVING A
POPULATION OF 130,000.  IT OWNS NO LINES CROSSING THE CONNECTICUT
BOUNDARY AND DOES NOT CONNECT WITH ANY OTHER COMPANY AT THE BOUNDARY. 
IT HAS NO BUSINESS OTHER THAN CONNECTICUT SERVICE FOR WHICH IT NEEDS
ANY FACILITIES WHATEVER, AND IF LOCAL DISTRIBUTION SERVICE WERE
TERMINATED, NO REMAINING PURPOSE OR USE OF ANY KIND IS SUGGESTED FOR
THE FACILITIES IN QUESTION.  ITS PURCHASES AND SALES, ITS RECEIPTS AND
DELIVERIES OF POWER, ARE ALL WITHIN THE STATE.  ITS RATES AND ITS
FISCAL AND ACCOUNTING AFFAIRS ARE FULLY AND SO FAR AS APPEARS
EFFECTIVELY REGULATED BY THE STATE OF CONNECTICUT. 

THE FEDERAL POWER COMMISSION ON JANUARY 7, 1941 ISSUED ITS ORDER
REQUIRING PETITIONER TO SHOW CAUSE WHY IT SHOULD NOT BE HELD TO BE A
"PUBLIC UTILITY" SUBJECT TO THE ACT AND WHY IT SHOULD NOT RECLASSIFY
AND KEEP ITS ACCOUNTS ACCORDING TO THE FEDERAL COMMISSION'S UNIFORM
SYSTEM.  ON MAY 15, 1942 IT ISSUED FINDINGS AND DECISION.  REHEARING
WAS DENIED.  THE COMPANY THEN APPLIED FOR THE REVIEW BY THE COURT OF
APPEALS OF THE DISTRICT OF COLUMBIA TO WHICH THE STATUTE ENTITLES IT.
SEC. 313(B) OF THE ACT, 49 STAT. 860. 

THE COURT OF APPEALS SUSTAINED THE ORDERS.  141 F.2D 14.  IT HELD
THAT "THE FEDERAL POWER ACT OBVIOUSLY INTENDS TO CONFER FEDERAL
JURISDICTION UPON ELECTRIC DISTRIBUTION SYSTEMS WHICH NORMALLY WOULD
OPERATE AS INTERSTATE BUSINESSES."  IT CONSTRUED THE "BUT" CLAUSE OF
THE ACT, WHICH WE SHALL LATER CONSIDER, AS "INTENDED TO MAKE IT CLEAR
THAT THIS (THE COMMISSION'S) JURISDICTION EXTENDS EVEN TO LOCAL
FACILITIES WHERE THE ACT PROVIDES FOR THEIR REGULATION, AS IT DOES IN
THE CASE OF ACCOUNTING PRACTICES."  THE COURT CONCLUDED THAT
"THEREFORE, WHETHER OR NOT THE FACILITIES BY WHICH PETITIONER
DISTRIBUTES ENERGY FROM MASSACHUSETTS SHOULD BE CLASSIFIED AS 'LOCAL'
IS NOT RELEVANT TO THIS CASE.  THE SOLE TEST OF JURISDICTION OF THE
COMMISSION OVER ACCOUNTS IS WHETHER THESE FACILITIES, 'LOCAL' OR
OTHERWISE, ARE USED FOR THE TRANSMISSION OF ELECTRIC ENERGY FROM A
POINT IN ONE STATE TO A POINT IN ANOTHER."  WE GRANTED CERTIORARI.  323
U.S. 687. 

THE FIRST QUESTION IS WHETHER THE REVIEWING COURT ACTED UNDER A
MISAPPREHENSION AS TO THE MEANING OF THE STATUTE. 

THE JURISDICTIONAL AND REGULATORY PROVISIONS OF THE FEDERAL POWER ACT
APPLY ONLY TO "PUBLIC UTILITIES," AND THE ACT PROVIDES THAT BY "PUBLIC
UTILITIES" IT "MEANS ANY PERSON WHO OWNS OR OPERATES FACILITIES SUBJECT
TO THE JURISDICTION OF THE COMMISSION."  SEC. 201(E), 49 STAT. 848. 
THESE FACILITIES ARE CAREFULLY DEFINED.  "THE COMMISSION SHALL HAVE
JURISDICTION OVER ALL FACILITIES FOR SUCH TRANSMISSION OR SALE OF
ELECTRIC ENERGY, BUT SHALL NOT HAVE JURISDICTION, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS PART AND THE PART NEXT FOLLOWING, OVER
FACILITIES USED FOR THE GENERATION OF ELECTRIC ENERGY OR OVER
FACILITIES USED IN LOCAL DISTRIBUTION OR ONLY FOR THE TRANSMISSION OF
ELECTRIC ENERGY IN INTRASTATE COMMERCE, OR OVER FACILITIES FOR THE
TRANSMISSION OF ELECTRIC ENERGY CONSUMED WHOLLY BY THE TRANSMITTER." 
SEC. 201(B).  TRANSMISSION AND SALE AS USED IN THIS PROVISION ARE
FURTHER DEFINED TO MEAN RESPECTIVELY "TRANSMISSION OF ELECTRIC ENERGY
IN INTERSTATE COMMERCE" AND "SALE OF ELECTRIC ENERGY AT WHOLESALE IN
INTERSTATE COMMERCE."  AND THE ACT GOES ON TO SAY:  "ELECTRIC ENERGY
SHALL BE HELD TO BE TRANSMITTED IN INTERSTATE COMMERCE IF TRANSMITTED
FROM A STATE AND CONSUMED AT ANY POINT OUTSIDE THEREOF" AND THAT SALE
OF ELECTRIC ENERGY AT WHOLESALE MEANS "A SALE OF ELECTRIC ENERGY TO ANY
PERSON FOR RESALE."  SECS. 201(C), (D).  OF COURSE AS PREAMBLE TO ALL
OF THESE PROVISIONS STANDS THE POLICY DECLARATION THAT FEDERAL
REGULATION "OF THAT PART OF SUCH BUSINESS WHICH CONSISTS OF 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."  SEC.
201(A). 

CAN IT BE SAID IN THAT STATE OF THE STATUTE THAT WHETHER FACILITIES
ARE LOCAL IS NOT RELEVANT TO THIS CASE?  THE COURT OF APPEALS IN
RETURNING AN AFFIRMATIVE ANSWER TO THIS QUESTION NOTED THAT "THERE IS A
SUPERFICIAL INCONSISTENCY" BETWEEN ITS POSITION AND THE LAST QUOTED
PROVISION OF THE ACT.  BUT IT SAID THAT WE, IN JERSEY CENTRAL POWER &
LIGHT CO. V. FEDERAL POWER COMMISSION, 319 U.S. 61, HELD THIS
"LIMITATION" "NOT TO APPLY TO THE SECTIONS OF THE ACT WHICH
SPECIFICALLY GIVE THE FEDERAL POWER COMMISSION JURISDICTION OVER
MATTERS OF FINANCIAL ARRANGEMENT, SUCH AS THE ACCOUNTING SECTION WHICH
WE ARE DISCUSSING HERE."  THIS MISAPPREHENDS OUR HOLDING IN THE JERSEY
CENTRAL CASE.  THE LINE DID NOT CROSS STATE BORDERS AND SINCE IT WAS
WHOLLY WITHIN ONE STATE, IT WAS CONTENDED THAT THE LINE WAS USED FOR
INTRASTATE TRANSMISSION AND THAT THE ACT DID NOT APPLY ALTHOUGH THE
LINE WAS USED TO TRANSMIT POWER IN ITS COURSE OF EXPORTATION FROM THE
STATE.  WE DENIED THIS CONTENTION AND SAID, "IT IS IMPOSSIBLE FOR US TO
CONCLUDE THAT THIS DEFINITION MEANS LESS THAN IT SAYS AND APPLIES ONLY
TO THE ENERGY AT THE INSTANT IT CROSSES THE STATE LINE AND SO ONLY TO
THE FACILITIES WHICH CROSS THE LINE AND ONLY TO THE COMPANY WHICH OWNS
THE FACILITIES WHICH CROSS THE LINE.  THE PURPOSE OF THIS ACT WAS
PRIMARILY TO REGULATE THE RATES AND CHARGES OF THE INTERSTATE ENERGY. 
IF INTERVENING COMPANIES MIGHT PURCHASE FROM PRODUCERS IN THE STATE OF
PRODUCTION, FREE OF FEDERAL CONTROL, COST WOULD BE FIXED PRIOR TO THE
INCIDENCE OF FEDERAL REGULATION AND FEDERAL RATE CONTROL WOULD BE
SUBSTANTIALLY IMPAIRED, IF NOT RENDERED FUTILE."  319 U.S. AT 71-72. 
WE HELD THAT THE "PRIMARY PURPOSE" OF THE 1935 AMENDMENTS TO THE POWER
ACT WAS TO GIVE THE POWER COMMISSION CONTROL OF SALES OF ENERGY ACROSS
STATE LINES WHICH HAD BEEN HELD TO BE BEYOND THE CONTROL OF THE STATE
OF EXPORT IN PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM & ELECTRIC
CO., 273 U.S. 83.  HERE, HOWEVER, THE FEDERAL AUTHORITY TO FIX THE SALE
PRICE OF THE ENERGY COMING FROM MASSACHUSETTS IN INTERSTATE COMMERCE
ATTACHES AND PRESUMABLY HAS BEEN OR AT LEAST MAY BE EXERCISED PURSUANT
TO THE JERSEY CENTRAL HOLDING BEFORE THE ENERGY REACHES THIS COMPANY. 
WHAT PETITIONER DOES OR FAILS TO DO IS ONLY AFTER THE INCIDENCE OF
FEDERAL REGULATION AND CAN IN NO WAY FRUSTRATE IT. 

IN THE JERSEY CENTRAL CASE ON CONSIDERATION OF ITS FACTS WE SAID, "WE
CONCLUDE, THEREFORE, THAT JERSEY CENTRAL IS A PUBLIC UTILITY UNDER THIS
ACT."  319 U.S. AT 73.  SUCH A FINDING MADE THE PROVISIONS OF THE ACT
APPLY TO IT.  BUT THE COMPANY CONTENDED, NOTWITHSTANDING ITS STATUS AS
A PUBLIC UTILITY, THAT IT WAS CARRIED OUT OF THAT PARTICULAR FEDERAL
REGULATION BY THE FACT THAT THE STATE REGULATED ITS SECURITY ISSUES. 
WE HELD THAT STATE REGULATION DOES NOT OPERATE TO EXEMPT FROM THE
SECURITY PROVISIONS A COMPANY OTHERWISE SUBJECT TO THE COMMISSION'S
JURISDICTION BUT THAT "THE SOUNDER CONCLUSION, IT SEEMS TO US, IS THAT
THE LIMITATION IS DIRECTED AT GENERATION, TRANSMISSION AND SALE RATHER
THAN THE CORPORATE FINANCIAL ARRANGEMENTS OF THE UTILITIES ENGAGED IN
SUCH PRODUCTION AND DISTRIBUTION."  ID. AT 74-75.  IN OTHER WORDS, THE
POLICY ADMONITION IS TO BE HEEDED IN DETERMINING WHETHER PARTICULAR
FACILITIES MAKE THEIR OWNER A "PUBLIC UTILITY" RATHER THAN IN EXEMPTING
FROM SPECIFIC REGULATORY PROVISIONS A COMPANY FOUND TO BE A PUBLIC
UTILITY.  THE JERSEY CENTRAL CASE DOES NOT READ THE POLICY DECLARATION
OUT OF THE ACT AS THE COURT BELOW ASSUMED IT TO DO. 

LEGISLATIVE HISTORY IS ILLUMINATING AS TO THE CONGRESSIONAL PURPOSE
IN PUTTING THESE PROVISIONS INTO THE ACT.  AS FREQUENTLY IS THE CASE,
THIS ORIGINAL BILL WAS DRAFTED BY THE COUNSEL AND AIDES OF THE AGENCY
CONCERNED.  FN2  IN ITS SUPPORT COMMISSIONER SEAVEY OF THE FEDERAL
POWER COMMISSION SAID TO THE HOUSE COMMITTEE, "THE NEW TITLE II OF THE
ACT IS DESIGNED TO SECURE COORDINATION ON A REGIONAL SCALE OF THE
NATION'S POWER RESOURCES AND TO FILL THE GAP IN THE PRESENT STATE
REGULATION OF ELECTRIC UTILITIES.  IT IS CONCEIVED ENTIRELY AS A
SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, STATE REGULATION."  FN3
PROGRESS OF THE BILL THROUGH VARIOUS STAGES SHOWS CONSTANT PURPOSE TO
PROTECT RATHER THAN TO SUPERVISE AUTHORITY OF THE STATES.  IN REPORTING
A REVISED BILL TO THE SENATE THE COMMITTEE ON INTERSTATE COMMERCE SAID,
"SUBSECTION (A)  ...  DECLARES THE POLICY OF CONGRESS TO EXTEND THAT
REGULATION TO THOSE MATTERS WHICH CANNOT BE REGULATED BY THE STATES AND
TO ASSIST THE STATES IN THE EXERCISE OF THEIR REGULATORY POWERS, BUT
NOT TO IMPAIR OR DIMINISH THE POWERS OF ANY STATE COMMISSION."  N4  THE
REPORT OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE IN
PRESENTING THE AMENDED BILL CALLED ATTENTION TO PUBLIC UTILITIES
COMMISSION V. ATTLEBORO STEAM & ELECTRIC CO., 273 U.S. 83, HOLDING THAT
RATES CHARGED IN INTERSTATE WHOLESALE TRANSACTIONS MAY NOT BE REGULATED
CONSTITUTIONALLY BY THE STATES, AND EXPRESSED THE PURPOSE TO GIVE
FEDERAL JURISDICTION TO REGULATE RATES OF WHOLESALE TRANSACTIONS, BUT
NOT TO GIVE JURISDICTION OVER LOCAL RATES.  IT SAID: 

"THE BILL TAKES NO AUTHORITY FROM STATE COMMISSIONS AND CONTAINS
PROVISIONS AUTHORIZING THE FEDERAL COMMISSION TO AID THE STATE
COMMISSIONS IN THEIR EFFORTS TO ASCERTAIN AND FIX REASONABLE
CHARGES....  THE NEW PARTS ARE SO DRAWN AS TO BE A COMPLEMENT TO AND IN
NO SENSE A USURPATION OF STATE REGULATORY AUTHORITY AND CONTAIN
THROUGHOUT DIRECTIONS TO THE FEDERAL POWER COMMISSION TO RECEIVE AND
CONSIDER THE VIEWS OF STATE COMMISSIONS.  PROBABLY, NO BILL IN RECENT
YEARS HAS SO RECOGNIZED THE RESPONSIBILITIES OF STATE REGULATORY
COMMISSIONS AS DOES TITLE II OF THIS BILL." 

.         .         .         .         . 

"SUBSECTION (B) CONFERS JURISDICTION UPON THE COMMISSION OVER THE
TRANSMISSION OF ELECTRIC ENERGY IN INTERSTATE COMMERCE AND THE SALE OF
ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE, BUT DOES NOT APPLY
TO ANY OTHER SALE OF ELECTRIC ENERGY OR DEPRIVE A STATE OF ANY LAWFUL
AUTHORITY NOW EXERCISED OVER THE EXPORTATION OF HYDROELECTRIC ENERGY
TRANSMITTED OUT OF THE STATE.  AS IN THE SENATE BILL NO JURISDICTION IS
GIVEN OVER LOCAL DISTRIBUTION OF ELECTRIC ENERGY, AND THE AUTHORITY OF
STATES TO FIX LOCAL RATES IS NOT DISTURBED EVEN IN THOSE CASES WHERE
THE ENERGY IS BROUGHT IN FROM ANOTHER STATE."  FN5 

IF WE CONSIDER THE PROFESSIONS OF THE SPONSORS OF THIS BILL TO HAVE
BEEN IN GOOD FAITH, WHERE ARE WE TO FIND THEM WRITTEN INTO THE ACT? 

THE POLICY DECLARATION THAT FEDERAL REGULATION IS "TO EXTEND ONLY TO
THOSE MATTERS WHICH ARE NOT SUBJECT TO REGULATION BY THE STATES" IS ONE
OF GREAT GENERALITY.  IT CANNOT NULLIFY A CLEAR AND SPECIFIC GRANT OF
JURISDICTION, EVEN IF THE PARTICULAR GRANT SEEMS INCONSISTENT WITH THE
BROADLY EXPRESSED PURPOSE.  BUT SUCH A DECLARATION IS RELEVANT AND
ENTITLED TO RESPECT AS A GUIDE IN RESOLVING ANY AMBIGUITY OR
INDEFINITENESS IN THE SPECIFIC PROVISIONS WHICH PURPORT TO CARRY OUT
ITS INTENT.  IT CANNOT BE WHOLLY IGNORED. 

THE DECLARED PURPOSE MIGHT ALSO BE LOOKED FOR IN SPECIFIC DENIALS OF
POWER TO THE COMMISSION, SUCH AS THAT FOUND IN SEC. 204(F), WHICH
PROVIDES THAT ITS CONTROLS, RELATING TO ISSUANCE OF SECURITIES, SHALL
NOT EXTEND TO A PUBLIC UTILITY OPERATING IN A STATE UNDER THE LAWS OF
WHICH ITS SECURITIES ARE REGULATED BY A STATE COMMISSION.  BUT SUCH
EXEMPTIONS FROM PARTICULAR REGULATIONS APPLY ONLY TO COMPANIES FOUND IN
GENERAL TO BE SUBJECT TO FEDERAL REGULATION AND DO NOT PROTECT THE
STATE'S GENERAL CONTROL OVER ITS LOCAL UTILITIES. 

THE ASSURANCE WHICH THE SPONSORS OF THIS LEGISLATION EXPRESSED AS TO
PROTECTION OF THE GENERAL JURISDICTION OF A STATE OVER ELECTRIC
UTILITIES OF THIS CHARACTER EITHER IS NOT GIVEN EFFECT BY THIS ACT AT
ALL, OR IT IS TO BE FOUND IN THE WORDS OF SEC. 201(B), "BUT SHALL NOT
HAVE JURISDICTION, EXCEPT AS SPECIFICALLY PROVIDED IN THIS PART AND THE
PART NEXT FOLLOWING,  ...  OVER FACILITIES USED IN LOCAL DISTRIBUTION
..."  THE COURT BELOW, FOLLOWING A STATEMENT IN HARTFORD ELECTRIC LIGHT
CO. V. FEDERAL POWER COMMISSION, 131 F.2D 953(C.C.A.2D, 1942), HELD
THAT THIS "BUT" CLAUSE "IS INTENDED TO MAKE IT CLEAR THAT THIS
JURISDICTION EXTENDS EVEN TO LOCAL FACILITIES WHERE THE ACT PROVIDES
FOR THEIR REGULATION, AS IT DOES IN THE CASE OF ACCOUNTING PRACTICES." 
THIS SEEMS TO GET THE CART BEFORE THE HORSE, FOR WHETHER THE ACT
PROVIDES FOR SUCH REGULATION DEPENDS ON WHETHER THE FACILITIES ARE
UNDER THE JURISDICTION OF THE COMMISSION; THE COMMISSION'S JURISDICTION
DOES NOT DEPEND ON SOME INDEPENDENT APPLICATION OF THE REGULATORY
PROVISIONS.  BUT THE CITED DECISION, POINTING OUT THAT ONE OF THE
SEVERAL TYPES OF FACILITIES MENTIONED AS EXEMPT IN THE "BUT" CLAUSE,
I.E., THOSE "USED ONLY FOR TRANSMISSION IN INTRASTATE COMMERCE," COULD
NOT POSSIBLY BE USED FOR INTERSTATE TRANSMISSION, REJECTED THE WHOLE
PROVISION TO AVOID A "FOOLISH INTERPRETATION."  IT CONCLUDED, "THE
'BUT' CLAUSE THEN SHOWS UP NOT AS ONE REDUCING JURISDICTION BUT AS A
NEGATIVELY WORDED CONFIRMATION OF THE COMMISSION'S JURISDICTION, IN
CERTAIN CIRCUMSTANCES, OVER THE FACILITIES MENTIONED IN THE 'BUT'
CLAUSE."  FN6  THE COMMISSION TAKES MUCH THE SAME POSITION HERE. 

IT IS HARD FOR US TO BELIEVE THAT CONGRESS MEANT US TO READ "SHALL
HAVE JURISDICTION" WHERE IT HAD CAREFULLY WRITTEN "BUT SHALL NOT HAVE
JURISDICTION."  THE COMMAND "THOU SHALT NOT" IS USUALLY RENDERED AS TO
FORBID AND WE THINK HERE IT WAS EMPLOYED WITHOUT SUBTLETY OR CONTORTION
AND IN ITS USUAL SENSE.  IF OTHERWISE IN DOUBT THIS PROVISION SHOULD BE
READ IN HARMONY WITH THE POLICY PROVISION.  SO READ, ITS TERMS SEEM
PLAINLY TO STATE CIRCUMSTANCES UNDER WHICH THE COMMISSION SHALL NOT
HAVE JURISDICTION.  AS SUCH IT IS THE PROVISION WHICH LOOMED
IMPORTANTLY IN THE MINDS AND SPEECH OF ITS SPONSORS, PERHAPS WAS
NECESSARY TO GET THE BILL PASSED, AND IS ONE WHICH THE COMMISSION MUST
OBSERVE AND THE COURTS MUST ENFORCE. 

THIS BILL CAME BEFORE CONGRESS AS PREPARED BY THE STAFF OF THE
COMMISSION, COUCHED LARGELY IN THE TECHNICAL LANGUAGE OF THE ELECTRIC
ART. FEDERAL JURISDICTION WAS TO FOLLOW THE FLOW OF ELECTRIC ENERGY, AN
ENGINEERING AND SCIENTIFIC, RATHER THAN A LEGALISTIC OR GOVERNMENTAL,
TEST.  TECHNOLOGY OF THE BUSINESS IS SUCH THAT IF ANY PART OF A SUPPLY
OF ELECTRIC ENERGY COMES FROM OUTSIDE OF A STATE IT IS, OR MAY BE,
PRESENT IN EVERY CONNECTED DISTRIBUTION FACILITY.  EVERY FACILITY FROM
GENERATOR TO THE APPLIANCE FOR CONSUMPTION MAY THUS BE CALLED ONE FOR
TRANSMITTING SUCH INTERSTATE POWER.  BY THIS TEST THE CORD FROM A LIGHT
PLUG TO A TOASTER ON THE BREAKFAST TABLE IS A FACILITY FOR TRANSMISSION
OF INTERSTATE ENERGY IF ANY PART OF THE LOAD IS GENERATED WITHOUT THE
STATE.  IT HAS NEVER BEEN QUESTIONED THAT TECHNOLOGICALLY GENERATION,
TRANSMISSION, DISTRIBUTION AND CONSUMPTION ARE SO FUSED AND
INTERDEPENDENT THAT THE WHOLE ENTERPRISE IS WITHIN THE REACH OF THE
COMMERCE POWER OF CONGRESS, EITHER ON THE BASIS THAT IT IS, OR THAT IT
AFFECTS, INTERSTATE COMMERCE, IF AT ANY POINT IT CROSSES A STATE LINE. 
SUCH A BROAD AND UNDIVIDED BASE FOR JURISDICTION OF THE POWER
COMMISSION WOULD BE QUITE UNOBJECTIONABLE AND PERHAPS HIGHLY SALUTARY
IF THE UNITED STATES WERE A UNITARY GOVERNMENT AND THE ONLY CONFLICTING
INTERESTS TO BE CONSIDERED WERE THOSE OF THE REGULATED COMPANY. 

BUT STATE LINES AND BOUNDARIES CUT ACROSS AND SUBDIVIDE WHAT
SCIENTIFICALLY OR ECONOMICALLY VIEWED MAY BE A SINGLE ENTERPRISE. 
CONGRESS IS ACUTELY AWARE OF THE EXISTENCE AND VITALITY OF THESE STATE
GOVERNMENTS.  IT SOMETIMES IS MOVED TO RESPECT STATE RIGHTS AND LOCAL
INSTITUTIONS EVEN WHEN SOME DEGREE OF EFFICIENCY OF A FEDERAL PLAN IS
THEREBY SACRIFICED.  CONGRESS MAY THINK IT EXPEDIENT TO AVOID CLASHES
BETWEEN STATE AND FEDERAL OFFICIALS IN ADMINISTERING AN ACT SUCH AS WE
HAVE HERE.  CONFLICTS WHICH LEAD STATE OFFICIALS TO STAND SHOULDER TO
SHOULDER WITH PRIVATE CORPORATIONS MAKING COMMON CAUSE OF RESISTANCE TO
FEDERAL AUTHORITY MAY BE THOUGHT TO BE PREJUDICIAL TO THE ENDS SOUGHT
BY AN ACT AND REGULATION MORE LIKELY TO BE SUCCESSFUL, EVEN THOUGH MORE
LIMITED, IF IT HAS LOCAL SUPPORT.  CONGRESS MAY THINK COMPLETE
CENTRALIZATION OF CONTROL OF THE ELECTRIC INDUSTRY LIKELY TO OVERTAX
ADMINISTRATIVE CAPACITY OF A FEDERAL COMMISSION.  IT MAY, TOO, THINK IT
WISE TO KEEP THE HAND OF STATE REGULATORY BODIES IN THIS BUSINESS, FOR
THE "INSULATED CHAMBERS OF THE STATES" ARE STILL LABORATORIES WHERE
MANY LESSONS IN REGULATION MAY BE LEARNED BY TRIAL AND ERROR ON A SMALL
SCALE WITHOUT INVOLVING A WHOLE NATIONAL INDUSTRY IN EVERY EXPERIMENT. 

BUT WHATEVER REASON OR COMBINATION OF REASONS LED CONGRESS TO PUT THE
PROVISION IN THE ACT, WE THINK IT MEANT WHAT IT SAID BY THE WORDS "BUT
SHALL NOT HAVE JURISDICTION, EXCEPT AS SPECIFICALLY PROVIDED IN THIS
PART OR THE PART NEXT FOLLOWING  ...  OVER FACILITIES USED IN LOCAL
DISTRIBUTION."  CONGRESS BY THESE TERMS PLAINLY WAS TRYING TO RECONCILE
THE CLAIMS OF FEDERAL AND OF LOCAL AUTHORITIES AND TO APPORTION FEDERAL
AND STATE JURISDICTION OVER THE INDUSTRY.  TO DEFINE THE SCOPE OF STATE
CONTROLS, CONGRESS EMPLOYED TERMS OF LIMITATION PERHAPS LESS
SCIENTIFIC, LESS PRECISE, LESS DEFINITE THAN THE TERMS OF THE GRANT OF
FEDERAL POWER.  THE EXPRESSION "FACILITIES USED IN LOCAL DISTRIBUTION"
IS ONE OF RELATIVE GENERALITY.  BUT AS USED IN THIS ACT IT IS NOT A
MEANINGLESS GENERALITY IN THE LIGHT OF OUR HISTORY AND THE STRUCTURE OF
OUR GOVERNMENT.  WE HOLD THE PHRASE TO BE A LIMITATION ON JURISDICTION
AND A LEGAL STANDARD THAT MUST BE GIVEN EFFECT IN THIS CASE IN ADDITION
TO THE TECHNOLOGICAL TRANSMISSION TEST. 

NOR DO WE THINK THE EXEMPTION OF "FACILITIES USED IN LOCAL
DISTRIBUTION" EXEMPTS ONLY THOSE WHICH DO NOT CARRY ANY TRACE OF OUT-OF
STATE ENERGY.  CONGRESS HAS SAID WITHOUT QUALIFICATION THAT THE
COMMISSION SHALL NOT, UNLESS SPECIFICALLY AUTHORIZED ELSEWHERE IN THE
ACT, HAVE JURISDICTION "OVER FACILITIES USED IN LOCAL DISTRIBUTION." 
TO CONSTRUE THIS AS MEANING THAT, EVEN IF LOCAL, FACILITIES COME UNDER
JURISDICTION OF THE FEDERAL COMMISSION BECAUSE POWER FROM OUT OF STATE,
HOWEVER TRIFLING, COMES INTO THE SYSTEM, WOULD NULLIFY THE EXEMPTION
AND AS A PRACTICAL MATTER WOULD TRANSFER TO FEDERAL JURISDICTION THE
REGULATION OF MANY LOCAL COMPANIES THAT WE THINK CONGRESS INTENDED TO
LEAVE IN STATE CONTROL.  IT DOES NOT SEEM IMPORTANT WHETHER OUT-OF
STATE ENERGY GETS INTO LOCAL DISTRIBUTION FACILITIES.  THEY MAY CARRY
NO ENERGY EXCEPT EXTRA-STATE ENERGY AND STILL BE EXEMPT UNDER THE ACT. 
THE TEST IS WHETHER THEY ARE LOCAL DISTRIBUTION FACILITIES.  THERE IS
NO SPECIFIC PROVISION FOR FEDERAL JURISDICTION OVER ACCOUNTING EXCEPT
AS TO "PUBLIC UTILITIES."  THE ORDER MUST STAND OR FALL ON WHETHER THIS
COMPANY OWNED FACILITIES THAT WERE USED IN TRANSMISSION OF INTERSTATE
POWER AND WHICH WERE NOT FACILITIES USED IN LOCAL DISTRIBUTION. 
SINCE THE COURT OF APPEALS CONSIDERED IRRELEVANT THE JURISDICTIONAL
TEST WHICH WE FIND TO BE IMPOSED BY CONGRESS, THE INQUIRY ON REVIEW HAS
NOT PROCEEDED UNDER A CORRECT RULE OF LAW AND IT FOLLOWS THAT THE
JUDGMENT OF THE COURT OF APPEALS MUST BE REVERSED. 

WHETHER THE COMMISSION'S DECISION WAS REACHED UNDER THE SAME
MISAPPREHENSION OF THE LAW OF ITS JURISDICTION IS NOT MADE SO CLEAR
FROM ITS FINDINGS OR OPINION.  OF COURSE UNDER THE ACT "THE FINDING OF
THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE,
SHALL BE CONCLUSIVE."  SEC. 313(B).  THE COMMISSION HAS FOUND THAT EACH
OF THE FACILITIES IN QUESTION IS "USED FOR THE TRANSMISSION OF ELECTRIC
ENERGY PURCHASED AS AFORESAID FROM THE CONNECTICUT POWER COMPANY, AS
DISTINGUISHED FROM LOCAL DISTRIBUTION THEREOF."  IT HAS NOT, HOWEVER,
MADE AN EXPLICIT FINDING THAT THESE FACILITIES ARE NOT USED IN LOCAL
DISTRIBUTION; AND WE ARE IN DOUBT WHETHER BY APPLICATION OF THE STATUTE
AS HEREIN CONSTRUED IT COULD HAVE DONE SO.  WE HAVE SAID, AND IT IS
APPLICABLE TO THIS CASE, THAT "WHERE A FEDERAL AGENCY IS AUTHORIZED TO
INVOKE AN OVERRIDING FEDERAL POWER EXCEPT IN CERTAIN PRESCRIBED
SITUATIONS AND THEN TO LEAVE THE PROBLEM TO TRADITIONAL STATE CONTROL,
THE EXISTENCE OF FEDERAL AUTHORITY TO ACT SHOULD APPEAR AFFIRMATIVELY
AND NOT REST ON INFERENCE ALONE."  YONKERS V. UNITED STATES, 320 U.S.
685, 692; FLORIDA V. UNITED STATES, 282 U.S. 194, 211-12; CF. PALMER V.
MASSACHUSETTS, 308 U.S. 79, 84; FEDERAL TRADE COMMISSION V. BUNTE
BROS., 312 U.S. 349, 351.  NOTHING EXCEPT EXPLICIT FINDINGS EXCLUDING
THE GROUNDS OF STATE CONTROL GIVES ASSURANCE THAT THE BOUNDS OF FEDERAL
JURISDICTION HAVE BEEN ACCURATELY UNDERSTOOD AND FULLY RESPECTED, AND
THAT STATE POWER HAS BEEN CONSIDERATELY AND DELIBERATELY OVERLAPPED. 

THE FINDINGS AND OPINION OF THE COMMISSION LEAVE US IN DOUBT, TO SAY
THE LEAST, AS TO WHETHER WHAT WE CONSIDER LIMITATIONS ON THE
JURISDICTION OF THE COMMISSION WERE SO CONSIDERED BY IT.  THE ONLY
SPECIFIC REFERENCE TO THE SUBJECT IS THE STATEMENT THAT "RESPONDENT'S
CONTENTIONS THAT IT IS SUBJECT TO REGULATION BY THE PUBLIC UTILITIES
COMMISSION OF THE STATE OF CONNECTICUT AND THEREFORE NOT SUBJECT TO THE
REGULATION PROVIDED BY THE FEDERAL POWER ACT MUST BE REJECTED," CITING
NORTHWESTERN ELECTRIC CO. V. FEDERAL POWER COMMISSION, 125 F.2D 882,
AND IN THE MATTER OF HARTFORD ELECTRIC LIGHT CO., 2 F.P.C. 502, AFF'D,
131 F.2D 953.  IN BOTH OF THOSE CASES FACTUAL DIFFERENCES IN REFERENCE
TO THE STATUS OF THE COMPANY AS A PUBLIC UTILITY WERE INVOLVED, AND WE
AGREE WITH THE COMMISSION THAT ONCE A COMPANY IS PROPERLY FOUND TO BE A
"PUBLIC UTILITY" UNDER THE ACT THE FACT THAT A LOCAL COMMISSION MAY
ALSO HAVE REGULATORY POWER DOES NOT PRECLUDE EXERCISE OF THE
COMMISSION'S FUNCTIONS.  CF. NORTHWESTERN ELECTRIC CO. V. FEDERAL POWER
COMMISSION, 321 U.S. 119.  BUT SUCH A REJECTION OF STATE CONTROL AS
GROUNDS OF EXEMPTION MUST BE PRECEDED BY THE FINDING, GIVING DUE WEIGHT
TO THE POLICY DECLARATION IN DOUBTFUL CASES, THAT THE COMPANY IN
QUESTION IS A "PUBLIC UTILITY" BY REASON OF OWNERSHIP OF FACILITIES NOT
USED IN LOCAL DISTRIBUTION. 

IN DETERMINING THIS THE COMMISSION ANNOUNCED AND APPLIED A RULE WHICH
APPEARS TO BE ONE OF LAW AS TO INTERSTATE TRANSMISSION:  "SUCH
TRANSMISSION, IN OUR OPINION, EXTENDS FROM THE GENERATOR, WHERE
GENERATION IS COMPLETE (CITING UTAH POWER & LIGHT CO. V. PFOST, 286
U.S. 165, 181) TO THE POINT WHERE THE FUNCTION OF CONVEYANCE IN BULK
OVER A DISTANCE, WHICH IS THE ESSENTIAL CHARACTERISTIC OF
'TRANSMISSION,' IS COMPLETED AND THE PROCESS OF SUBDIVIDING THE ENERGY
TO SERVE ULTIMATE CONSUMERS, WHICH IS THE CHARACTERISTIC OF 'LOCAL
DISTRIBUTION,' IS BEGUN (CITING SOUTHERN GAS CORP. V. ALABAMA, 301 U.S.
148, 155; AND EAST OHIO GAS CO. V. TAX COMMISSION, 283 U.S. 465,
471)." 

THE SOUTHERN AND EAST OHIO CASES BOTH INVOLVED NATURAL GAS
TRANSPORTATION INTO A STATE AND SALES OF GAS AT RETAIL THEREIN.  EACH
WAS A TAX CASE IN WHICH THE STATE ASSERTED THAT THE SALES WITHIN THE
STATE CONSTITUTED AN INTRASTATE BUSINESS WHICH IN ONE CASE WOULD
SUPPORT A STATE LEVY OF AN ANNUAL FRANCHISE TAX BASED ON THE ACTUAL
AMOUNT OF CAPITAL EMPLOYED IN THE STATE; AND IN THE OTHER, AN EXCISE
TAX BASED ON GROSS RECEIPTS FROM THE BUSINESS WITHIN THE STATE.  THE
COMPANIES EACH CONTENDED THAT SALES MADE TO CONSUMERS WITHIN THE STATE
WERE STILL WITHIN INTERSTATE COMMERCE AND HENCE THERE WAS NO STATE
JURISDICTION TO TAX.  IN NEITHER CASE WAS THIS COURT REQUIRED TO
DETERMINE THE EXACT POINT AT WHICH INTERSTATE COMMERCE CEASED AND
INTRASTATE COMMENCED.  IT WAS REQUIRED TO FIND ONLY SOME "DOING OF
BUSINESS" WITHIN THE STATE IN ORDER TO SUSTAIN THE CONSTITUTIONALITY OF
THE STATUTES INVOLVED.  IN BOTH CASES IT UPHELD THE POWER OF THE STATE
TO TAX AND IN BOTH HELD THAT THE DISTRIBUTION AT LOW PRESSURE WAS A
LOCAL BUSINESS FOR TAXATION PURPOSES AS DISTINGUISHED FROM TRANSMISSION
IN INTERSTATE COMMERCE.  BUT A HOLDING THAT DISTRIBUTING GAS AT LOW
PRESSURE TO CONSUMERS IS A LOCAL BUSINESS IS NOT A HOLDING THAT THE
PROCESS OF REDUCING IT FROM HIGH TO LOW PRESSURE IS NOT ALSO PART OF
SUCH LOCAL BUSINESS.  IN SO FAR AS THE COMMISSION FOUND IN THESE CASES
A RULE OF LAW WHICH EXCLUDED FROM THE BUSINESS OF LOCAL DISTRIBUTION
THE PROCESS OF REDUCING ENERGY FROM HIGH TO LOW VOLTAGE IN SUBDIVIDING
IT TO SERVE ULTIMATE CONSUMERS, THE COMMISSION HAS MISREAD THE
DECISIONS OF THIS COURT.  NO SUCH RULE OF LAW HAS BEEN LAID DOWN. 

BUT FOR SUCH AN ERRONEOUS VIEW OF THE LAW ESTABLISHED BY OUR
DECISIONS IT SEEMS DOUBTFUL IF THE COMMISSION WOULD HAVE REACHED THE
CONCLUSION THAT IT DID UPON THIS RECORD.  NOR IS IT CLEAR THAT IF IT
WERE REACHED IT WOULD BE SUPPORTED BY SUBSTANTIAL EVIDENCE.  EXPERT
TESTIMONY RECEIVED BY THE COMMISSION ON THE SUBJECT FROM THE
COMMISSION'S OWN EXPERTS SEEMS TO HAVE BEEN PREDICATED UPON THE
COMMISSION'S UNDERSTANDING OF THE LAW.  IT IS NOT FOR US TO MAKE AN
ORIGINAL APPRAISAL OF THE FACTS.  WE DO NOT THEREFORE UNDERTAKE TO
DECIDE AS AN ORIGINAL MATTER WHETHER THE FACILITIES IN QUESTION ARE OR
ARE NOT FACILITIES WHICH CAN SUBJECT THE COMPANY TO THE ACT. 

NOR DO WE UNDERTAKE TO PASS UPON THE CONTENTION OF THE GOVERNMENT
THAT EVEN IF THE PRESENT FACILITIES DO NOT CONSTITUTE A SUFFICIENT
BASIS FOR FEDERAL JURISDICTION THE OPERATION OF OTHER FACILITIES SINCE
ABANDONED SUBJECTS THE COMPANY TO THE ACCOUNTING ORDER OF THE
COMMISSION FOR THE PERIOD OF JANUARY 1, 1937, WHEN IT BECAME EFFECTIVE,
UNTIL JUNE 1, 1941 OR SOME OTHER DATE, DEPENDING ON THE FACILITY FOUND
TO BE THE BASIS OF JURISDICTION.  THE COMPANY CONTENDS THAT TO MAKE IT
INSTALL AN EXPENSIVE SYSTEM OF ACCOUNTING FOR A PERIOD THAT WAS SHORT
AND HAS ALREADY EXPIRED WOULD BE A MERE WASTE OF TIME AND MONEY AND
WOULD BE OF NO PRACTICAL BENEFIT.  THE COMMISSION CONTENDS THAT THE
ACCOUNTING REQUIREMENTS AND INFORMATION WOULD TEND TO DISCOURAGE
FURTHER WRITE-UPS AND INFLATION OF ACCOUNTS AND WOULD AMOUNT TO
"REGULATION BY THE INFORMATORY PROCESS."  IT CONTENDS THAT THIS COMPANY
HAS BEEN GUILTY OF ACCOUNTING ABUSES IN THE NATURE OF WRITE-UPS AND THE
CREATION OF FICTITIOUS SURPLUSES WHICH WOULD BE ELIMINATED OR AT LEAST
DISCOURAGED BY AN APPLICATION OF ITS UNIFORM SYSTEM OF ACCOUNTS.  THE
COMPANY DENIES THAT SUCH ABUSES EXIST.  IT IS NOT, HOWEVER, CONTENDED
THAT CONGRESS HAS CONFERRED ANY JURISDICTION UPON THE COMMISSION TO
REACH ACCOUNTING ABUSES WHEN AND IF THEY EXIST EXCEPT AS TO COMPANIES
WHICH OWN FACILITIES SUBJECT TO THE JURISDICTION OF THE COMMISSION.  IN
OTHER COMPANIES THE CORRECTION OF THESE ABUSES, IF THEY EXIST, IS LEFT
TO THE STATE GOVERNMENT, WHICH HAS THIS COMPANY COMPLETELY WITHIN ITS
POWER AND WHOSE CONSTITUENTS ARE THE SUFFERERS BY ANY ABUSES THAT MAY
EXIST.  WE WILL NOT UNDERTAKE TO MAKE AN ORIGINAL FINDING AS TO
JURISDICTION FOR A PERIOD, ANY MORE THAN AS TO JURISDICTION AT THE
PRESENT TIME. 

ANOTHER CONTENTION MADE BY THE COMPANY MAY BE SHORTLY DISPOSED OF.
IT IS CONTENDED THAT THE VOLUME OF ENERGY PASSING OVER CERTAIN OF THESE
FACILITIES IS INSIGNIFICANT IN PROPORTION TO THE TOTAL.  ONLY ABOUT ONE
FIFTH OF ONE PER CENT OF ALL THE ENERGY RECEIVED AND GENERATED BY THE
COMPANY THROUGHOUT THE STATE OF CONNECTICUT WAS TRANSMITTED OUT OF THE
STATE DURING THE TIME OF THE CONNECTION OF FISHERS ISLAND WITH THE
BOROUGH OF GROTON.  CONGRESS APPEARS TO HAVE LEFT TO THE COMMISSION'S
SOUND ADMINISTRATIVE DISCRETION TO DETERMINE WHETHER OR NOT TO ASSERT
ITS AUTHORITY IN SUCH SITUATIONS.  CONGRESS ANNUALLY RECEIVES A REPORT
OF THE COMMISSION'S WORK AND APPROPRIATES THE FUNDS FOR ITS
CONTINUANCE.  IF IT THINKS THE COMMISSION IS OVER-EXTENDING ITS
ATTENTION TO TRIVIAL SITUATIONS IT HAS READY MEANS OF CONTROL IN ITS
HANDS.  THE WISDOM OF ITS WORK IS NOT OUR CONCERN, BUT ONLY ITS LEGAL
JUSTIFICATION.  WE DO NOT FIND THAT CONGRESS HAS CONDITIONED THE
JURISDICTION OF THE COMMISSION UPON ANY PARTICULAR VOLUME OR PROPORTION
OF INTERSTATE ENERGY INVOLVED, AND WE DO NOT THINK IT WOULD BE
APPROPRIATE TO SUPPLY SUCH A JURISDICTIONAL LIMITATION BY
CONSTRUCTION. 

FOR THE REASONS STATED, THE JUDGMENT OF THE COURT OF APPEALS IS
REVERSED WITH INSTRUCTIONS TO REMAND THE CAUSE TO THE FEDERAL POWER
COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  CF. RE TWIN STATE GAS & ELECTRIC CO., 33 P.U.R. (NS) 39, WHERE
THE COMMISSION APPROVED A PUBLIC UTILITY'S SALE OF CERTAIN FACILITIES
EVEN THOUGH THE SALE MIGHT HAVE BEEN "A STEP IN THE DIRECTION THAT
EVENTUALLY RESULTS IN THE VENDOR COMPANY OBTAINING A STATUS OTHER THAN
THAT OF A PUBLIC UTILITY WITHIN THE JURISDICTION OF THIS COMMISSION." 

FN2  HEARINGS, SENATE COMMITTEE ON INTERSTATE COMMERCE ON S. 1725,
74TH CONG., 1ST SESS., 223. 

FN3  HEARINGS ON H.R. 5423, HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, 74TH CONG., 1ST SESS., 384. 

FN4  SEN. REP. NO. 621, 74TH CONG., 1ST SESS. 

FN5  H.R. REP. NO. 1318, 74TH CONG., 1ST SESS., 7, 8, 27. 

FN6  THE STATEMENT WAS NOT DECISIVE OF THE RESULT, WHICH RESTED ON AN
ALTERNATIVE GROUND; AND THE COURT DID RECOGNIZE NEED FOR THE FURTHER
STEP OF FINDING THAT THE GENERATING FACILITIES WERE USED AS FACILITIES
FOR INTERSTATE WHOLESALE SALES, AND THEREFORE WERE WITHIN SEC. 201(B). 
THE COURT BELOW FAILED EXPRESSLY TO FIND EXISTENCE OF JURISDICTIONAL
FACILITIES UNDER SEC. 201(B).  THE QUOTED STATEMENT READS IN FULL: 

"MOREOVER, AMONG THE FACILITIES DESCRIBED IN THE 'BUT' CLAUSE OF SEC.
201(B), ARE THOSE USED 'ONLY FOR THE TRANSMISSION  ... IN INTRASTATE
COMMERCE'; AS SUCH FACILITIES COULD NOT POSSIBLY BE AMONG THOSE USED
FOR INTERSTATE TRANSMISSION OR INTERSTATE WHOLESALE SALES, THE 'BUT'
CLAUSE BECOMES FOOLISH IF INTERPRETED AS CARVING OUT OF THE AUTHORITY
GRANTED IN THE EARLIER PART OF THE SAME SENTENCE THE FACILITIES
DESCRIBED IN THE 'BUT' CLAUSE.  SUCH A FOOLISH INTERPRETATION IS
AVOIDED BY GIVING EFFECT TO A PHRASE IN THE 'BUT' CLAUSE, I.E., 'EXCEPT
AS SPECIFICALLY PROVIDED IN THIS PART OR THE PART NEXT FOLLOWING
(SECTIONS 824-825R OF THIS TITLE).'  THE 'BUT' CLAUSE THEN SHOWS UP NOT
AS ONE REDUCING JURISDICTION BUT AS A NEGATIVELY WORDED CONFIRMATION OF
THE COMMISSION'S JURISDICTION, IN CERTAIN CIRCUMSTANCES, OVER THE
FACILITIES MENTIONED IN THE 'BUT' CLAUSE.  IN OTHER WORDS, THE 'BUT'
CLAUSE IS TO BE CONSTRUED AS IF IT READ:  'WHEREVER IT IS SO
SPECIFICALLY PROVIDED IN PARTS II AND III, THE COMMISSION SHALL HAVE
JURISDICTION OVER THE FACILITIES USED FOR GENERATION, FOR LOCAL
DISTRIBUTION, FOR INTRASTATE TRANSMISSION, ETC.'" HARTFORD ELECTRIC
LIGHT CO. V. FEDERAL POWER COMMISSION, 131 F.2D 953, 962. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE MURPHY, DISSENTING. 

THE FINDINGS AND OPINION OF THE FEDERAL POWER COMMISSION IN THIS CASE
MAKE CLEAR THAT THEY ARE SUBSTANTIALLY AND REASONABLY ROOTED IN FACT
AND LAW AND THAT PROPER RESPECT HAS BEEN SHOWN FOR JURISDICTIONAL
LIMITATIONS.  REMAND OF THE CASE TO THE COMMISSION FOR FURTHER
CONSIDERATION THUS CAN ONLY SERVE TO PRODUCE NEEDLESS DELAY AND TO
FORCE THE COMMISSION TO MAKE CERTAIN MINOR AND UNNECESSARY CHANGES IN
ITS WRITTEN OPINION.  CF. DISSENTING OPINION IN SECURITIES & EXCHANGE
COMMISSION V. CHENERY CORP., 318 U.S. 80, 95. 

THE BASIC JURISDICTIONAL FACT NECESSARY TO SUSTAIN THE IMPOSITION ON
PETITIONER OF THE COMMISSION'S ACCOUNTING STANDARDS IS THAT PETITIONER
BE A PUBLIC UTILITY WITHIN THE MEANING OF THE FEDERAL POWER ACT.  IN
THE SETTING OF THIS CASE PETITIONER MUST THUS BE FOUND TO OWN OR
OPERATE FACILITIES FOR THE "TRANSMISSION OF ELECTRIC ENERGY IN
INTERSTATE COMMERCE."  SEC. 201(B).  NOWHERE IN THE ACT HAS CONGRESS
DEFINED "TRANSMISSION" OR "FACILITIES" OTHER THAN TO SAY IN SEC. 201(C)
THAT "ELECTRIC ENERGY SHALL BE HELD TO BE TRANSMITTED IN INTERSTATE
COMMERCE IF TRANSMITTED FROM A STATE AND CONSUMED AT ANY POINT OUTSIDE
THEREOF."  THE COMMISSION THEREFORE HAS THE DUTY IN THE FIRST INSTANCE
OF INTERPRETING AND APPLYING THESE TERMS TO THE FACTUAL SITUATION
CONFRONTING IT.  A COURT'S FUNCTION IN REVIEWING THIS JURISDICTIONAL
DETERMINATION IS NECESSARILY LIMITED TO ASCERTAINING WHETHER THAT
DETERMINATION HAS WARRANT IN THE RECORD AND A REASONABLE BASIS IN LAW,
GIVING DUE WEIGHT TO THE FACT THAT THE COMMISSION IS AN EXPERT BODY
DESIGNATED BY CONGRESS AND SPECIALLY EQUIPPED TO GRAPPLE WITH THE
HIGHLY TECHNICAL PROBLEMS ARISING IN THIS FIELD.  LABOR BOARD V. HEARST
PUBLICATIONS, 322 U.S. 111, 130, 131. 

THE COMMISSION HERE HAS FOUND THAT PETITIONER OWNS AND OPERATES AN
ELECTRIC UTILITY SYSTEM IN THE STATE OF CONNECTICUT.  IT IS UNDISPUTED
THAT ELECTRIC ENERGY GENERATED IN MASSACHUSETTS IS TRANSMITTED OVER THE
WIRES OF OTHER COMPANIES TO PETITIONER'S FACILITIES AT BRISTOL,
CONNECTICUT.  IN ORDER TO TRANSMIT POWER ECONOMICALLY FOR SUCH A LONG
DISTANCE, IT IS NECESSARY TO RAISE THE VOLTAGE AND REDUCE THE CURRENT
IN MASSACHUSETTS AS THE ENERGY STARTS ITS INTERSTATE JOURNEY.  BUT THE
HIGH VOLTAGE NEEDED FOR TRANSIT PURPOSES CANNOT BE UTILIZED BY
CONSUMERS.  IT THEREFORE IS NECESSARY TO EMPLOY APPARATUS AT THE
RECEIVING END OF THE INTERSTATE TRANSMISSION TO LOWER THE VOLTAGE. 
PETITIONER ACCORDINGLY MAINTAINS STEP-DOWN TRANSFORMERS AND SUBSTATION
FACILITIES AT BRISTOL FOR THAT PURPOSE.  AFTER THE VOLTAGE IS LOWERED,
THE ENERGY IS SUBDIVIDED AND DISTRIBUTED OVER PETITIONER'S WIRES TO
CONSUMERS IN AND AROUND BRISTOL.    THE COMMISSION CONCLUDED THAT THE
FUNCTIONS OF THE BRISTOL STEP-DOWN TRANSFORMERS AND SUBSTATION
FACILITIES CONSTITUTE TRANSMISSION OF ENERGY IN INTERSTATE COMMERCE
SINCE IT FELT THAT, IN ITS OPINION, SUCH TRANSMISSION "EXTENDS FROM THE
GENERATOR, WHERE GENERATION IS COMPLETE, TO THE POINT WHERE THE
FUNCTION OF CONVEYANCE IN BULK OVER A DISTANCE, WHICH IS THE ESSENTIAL
CHARACTERISTIC OF 'TRANSMISSION,' IS COMPLETED AND THE PROCESS OF
SUBDIVIDING THE ENERGY TO SERVE ULTIMATE CONSUMERS, WHICH IS THE
CHARACTERISTIC OF 'LOCAL DISTRIBUTION,' IS BEGUN."  IN OTHER WORDS, THE
COMMISSION VIEWED THE INTERSTATE TRANSMISSION AS COMPLETE ONLY AFTER
THE ENERGY IS CONVERTED BACK INTO A FORM SUITABLE FOR LOCAL
DISTRIBUTION AND USE AND THE FACILITIES USED FOR SUCH CONVERSION
PURPOSES ARE NECESSARILY FACILITIES FOR INTERSTATE TRANSMISSION. 

THE JURISDICTIONAL DETERMINATION OF THE COMMISSION MUST THEREFORE
STAND OR FALL UPON THE VALIDITY OF ITS ANALYSIS OF WHEN LONG-DISTANCE
TRANSMISSION OF ELECTRICAL ENERGY ACROSS STATE LINES IS AT AN END. 
ONLY IF WE CAN POINT TO AN ABSENCE OF ANY SUBSTANTIAL EVIDENCE TO
SUPPORT THE COMMISSION'S VIEW OR IF WE CAN FIND LEGAL OR STATUTORY
PRINCIPLES COMPELLING THE OPPOSITE VIEW CAN WE JUSTIFIABLY SAY THAT THE
COMMISSION HAD NO JURISDICTION IN THIS CASE OR THAT REMAND SHOULD BE
MADE TO THE COMMISSION FOR FURTHER PROCEEDINGS.  BUT THE COMMISSION'S
VIEW CANNOT BE UNDERMINED ON EITHER BASIS AND IT SHOULD THEREFORE BE
AFFIRMED. 

CERTAINLY THERE IS AMPLE TESTIMONY IN THIS CASE BY ENGINEERS TO THE
EFFECT THAT THE BRISTOL SUBSTATION EQUIPMENT CONSTITUTES "FACILITIES
FOR TRANSMISSION OF ELECTRIC ENERGY IN INTERSTATE COMMERCE," AS
DISTINGUISHED FROM "FACILITIES USED IN LOCAL DISTRIBUTION."  AND THE
VERY FACT THAT THE COMMISSION, WITH ALL ITS ACCUMULATED WISDOM AND
EXPERIENCE, IS OF THE OPINION THAT INTERSTATE TRANSMISSION CEASES ONLY
AFTER THE TRANSMITTED ENERGY HAS BEEN CONVERTED INTO A FORM SUITABLE
FOR LOCAL DISTRIBUTION AND USE IS NOT WITHOUT WEIGHT AND SIGNIFICANCE. 

FROM A LEGAL STANDPOINT, THE COMMISSION MADE NO PLAIN ERROR.  CLEARLY
NO OPINION IN THIS COURT HAS PURPORTED TO DECIDE AT WHAT PRECISE POINT
INTERSTATE TRANSMISSION OF ELECTRICAL ENERGY ENDS AND LOCAL
DISTRIBUTION COMMENCES.  THIS SEEMS TO BE A NOVEL POINT INSOFAR AS
LEGAL PRECEDENT IS CONCERNED.  THE COMMISSION'S CONCLUSION IN THIS
RESPECT HARDLY SEEMS SO UNREASONABLE AND UNSOUND AS TO REQUIRE US TO
HOLD, AS A MATTER OF LAW, THAT INTERSTATE TRANSMISSION ENDS JUST BEFORE
THE VOLTAGE IS DECREASED.  AND THIS COURT DOES NOT PRETEND SO TO HOLD
IN THIS CASE. 

THE COURT CRITICIZES THE COMMISSION AND REMANDS THE CASE TO IT,
HOWEVER, MAINLY BECAUSE IT CITED SOUTHERN GAS CORP. V. ALABAMA, 301
U.S. 148, 155, AND EAST OHIO GAS CO. V. TAX COMMISSION, 283 U.S. 465,
471, IN A FOOTNOTE IN SUPPORT OF ITS PROPOSITION THAT INTERSTATE
TRANSMISSION ENDS ONLY AFTER THE ENERGY IS CONVERTED BACK INTO A FORM
SUITABLE FOR LOCAL DISTRIBUTION.  IT IS SAID THAT THE COMMISSION
ERRONEOUSLY ASSUMED THAT THOSE CASES SET FORTH A RULE OF LAW WHICH
EXCLUDED THE PROCESS OF REDUCING ENERGY FROM HIGH TO LOW VOLTAGE IN
SUBDIVIDING IT TO SERVE ULTIMATE CONSUMERS FROM THE BUSINESS OF LOCAL
DISTRIBUTION.  BUT EVEN ASSUMING THAT THESE TWO CASES DO NOT ENUNCIATE
SUCH A RULE AND DO NOT DIRECTLY SUPPORT THE COMMISSION'S PROPOSITION,
IT DOES NOT FOLLOW THAT THE COMMISSION COMMITTED REVERSIBLE ERROR BY
CITING THEM IN A FOOTNOTE.  THE COMMISSION'S PROPOSITION WAS GROUNDED
NOT ON THESE TWO CASES BUT UPON THE TESTIMONY IN THE RECORD AND ITS OWN
KNOWLEDGE AND EXPERIENCE PERTAINING TO ELECTRICAL TRANSMISSION.  THIS
IS PLAINLY REVEALED BY THE USE OF THE PHRASE "IN OUR OPINION" IN THE
SENTENCE SETTING FORTH THE COMMISSION'S DISTINCTION BETWEEN INTERSTATE
TRANSMISSION AND LOCAL DISTRIBUTION.  THE SLIGHT REFERENCE TO THE
SOUTHERN GAS AND EAST OHIO CASES WAS AT MOST FOR PURPOSES OF ANALOGY
AND CANNOT SERVE TO IMPAIR THE TRUE UNDERLYING BASIS OF THE
COMMISSION'S PROPOSITION.  PRESUMABLY ALL THE COMMISSION NEED DO ON
REMAND IN THIS RESPECT IS TO REMOVE THE FOOTNOTE REFERENCE TO THESE
CASES - A FACT THAT MAKES OBVIOUS THE PROPOSITION THAT MORE THAN AN
IRRELEVANT OR EVEN ERRONEOUS CITATION OF A CASE SHOULD BE REQUIRED
BEFORE WE ARE JUSTIFIED IN REVERSING AN ADMINISTRATIVE DETERMINATION
AND SENDING IT BACK FOR FURTHER CONSIDERATION. 

THE COURT ALSO DEALS AT GREAT LENGTH WITH THE POLICY DECLARATION IN
SEC. 201(A) OF THE ACT THAT FEDERAL REGULATION IS "TO EXTEND ONLY TO
THOSE MATTERS WHICH ARE NOT SUBJECT TO REGULATION BY THE STATES" AND
WITH THE "BUT" CLAUSE IN SEC. 201(B), WHICH STATES THAT THE COMMISSION
SHALL NOT HAVE JURISDICTION, EXCEPT AS SPECIALLY PROVIDED, OVER CERTAIN
FACILITIES, INCLUDING THOSE USED IN LOCAL DISTRIBUTION.  BUT NEITHER OF
THESE PROVISIONS IS CONTROLLING IN THIS CASE WHERE THE COMMISSION HAS
MADE A CLEAR AND SUPPORTABLE FINDING THAT PETITIONER IS A PUBLIC
UTILITY WITHIN THE MEANING OF THE ACT AND WHERE THE ONLY FEDERAL
REGULATION SOUGHT TO BE IMPOSED IS THE ACCOUNTING REQUIREMENTS OF SEC.
301(A). 

IT MAY BE CONCEDED THAT THIS COURT IN JERSEY CENTRAL CO. V. FEDERAL
POWER COMMISSION, 319 U.S. 61, DID NOT READ OUT OF THE ACT THE POLICY
DECLARATION IN SEC. 201(A).  BUT IT DID MAKE CLEAR THAT THE
DECLARATION, WHICH SPEAKS SOLELY IN TERMS OF "REGULATION," WAS DIRECTED
SOLELY AT PROPOSED FEDERAL REGULATION OF THE GENERATION, TRANSMISSION
AND SALE OF ELECTRIC ENERGY RATHER THAN AT PROPOSED FEDERAL REGULATION
OF THE CORPORATE FINANCIAL ARRANGEMENTS OF UTILITIES, SUCH AS THEIR
ACCOUNTING METHODS.  319 U.S. AT 74, 75.  CONGRESS DID NOT INTEND, IN
OTHER WORDS, TO INTRUDE UPON STATE REGULATION OF GENERATION,
TRANSMISSION AND SALE OF ENERGY BUT IT DID INTEND TO IMPOSE FINANCIAL
REGULATIONS ON PUBLIC UTILITIES ENGAGED IN INTERSTATE TRANSMISSION OF
ENERGY EVEN THOUGH STATES MIGHT ALSO IMPOSE FINANCIAL REGULATIONS. 
THIS MEANS, UNDER THE FACTS OF THIS CASE, THAT INTERSTATE TRANSMISSION
OF ENERGY IS A PROPER TEST OF WHETHER FEDERAL ACCOUNTING STANDARDS MAY
BE IMPOSED.  WHAT SORT OF TRANSMISSION MAY BE A PROPER SUBJECT OF
FEDERAL REGULATION IN AND OF ITSELF IF THE STATE OF CONNECTICUT ALREADY
REGULATES THE TRANSMISSION FACILITIES IS NOT IN ISSUE.  THE COMMISSION
CLEARLY DID NOT MISCONCEIVE THE MEANING OF THIS POLICY DECLARATION AND,
IN LIGHT OF THIS COURT'S OPINION, IT APPARENTLY NEED DO NO MORE THAN
SPELL OUT ITS RECOGNITION OF THE SCOPE AND PRESENT INAPPLICABILITY OF
THE DECLARATION. 

NOR DID THE COMMISSION DO VIOLENCE TO THE "BUT" CLAUSE OF SEC.
201(B).  HERE THE COMMISSION, FOLLOWING THE RULE STATED IN THE JERSEY
CENTRAL CASE, 319 U.S. AT 73, THAT "THE DETERMINATIVE FACT IS THE
OWNERSHIP OF FACILITIES USED IN TRANSMISSION," HAS FOUND THAT
PETITIONER IS A PUBLIC UTILITY SINCE IT OWNS AND OPERATES FACILITIES
USED IN INTERSTATE TRANSMISSION OF ENERGY.  THE COMMISSION THUS HAS
JURISDICTION OVER PETITIONER FOR ACCOUNTING PURPOSES.  THE DENIAL OF
JURISDICTION IN THE "BUT" CLAUSE WHERE FACILITIES ARE USED FOR
TRANSMISSION OF ENERGY IN LOCAL COMMERCE HAS NO RELEVANCE IN THIS CASE,
AN OBVIOUS FACT WHICH THE COMMISSION APPARENTLY NOW MUST MAKE EXPLICIT
ON REMAND. 

THE COMMISSION IS DEALING HERE WITH A DIFFICULT MARGINAL CASE.  THE
PRECISE DIVIDING LINE BETWEEN INTERSTATE TRANSMISSION AND LOCAL
DISTRIBUTION CAN ONLY BE DRAWN BY THOSE FAMILIAR WITH THE ENGINEERING
AND ELECTRICAL PROBLEMS INVOLVED.  THE PROBLEM IN THIS CASE, MOREOVER,
IS A RELATIVELY UNIQUE ONE.  AN INFORMAL SURVEY BY THE COMMISSION HAS
SHOWN THAT OUT OF A TOTAL OF ABOUT 1,000 PRIVATELY OWNED ELECTRIC
UTILITIES THERE ARE ONLY 12 WHICH OWN OR OPERATE STEP-DOWN SUBSTATION
FACILITIES FOR TAKING OUT-OF-STATE ENERGY AND WHICH WOULD NOT OTHERWISE
BE PUBLIC UTILITIES UNDER THE ACT.  THE PROBLEM IS THUS ONE PECULIARLY
WITHIN THE COMPETENCE OF THE COMMISSION, WHICH HAS SHOWN NO DESIRE TO
USE THE PRINCIPLE IT HAS ENUNCIATED IN THIS CASE AND COULD NOT USE IT
AS A VEHICLE FOR ASSUMING UNJUSTIFIED JURISDICTION OVER THE FACILITIES
OF ALL THE LOCAL DISTRIBUTING COMPANIES IN THE NATION.  IT HAS GIVEN
PROPER RESPECT TO THE DICTATES OF CONGRESS RELATIVE TO STATE
REGULATION.  WE SHOULD THEREFORE AFFIRM ITS ACTION IN THIS CASE WITHOUT
BURDENING IT WITH REQUIREMENTS OF ARTISTIC REFINEMENT AND OF NEGATIONS
OF THE APPLICABILITY OF IRRELEVANT STATUTORY PROVISIONS. 

MR. JUSTICE BLACK AND MR. JUSTICE REED JOIN IN THIS DISSENT. 
..END :












COMMISSIONER V. WHEELER, 324 U.S. 542 


NO. 354.  ARGUED FEBRUARY 2, 1945.  - DECIDED MARCH 26, 1945.  - 143
F.2D 162, REVERSED. 


ARTICLE 115-3 OF TREASURY REGULATIONS 101, PROMULGATED UNDER THE
REVENUE ACT OF 1938, REQUIRES THAT, FOR COMPUTING UNDER SEC.
112(B)(7)(E) THE AMOUNT OF "EARNINGS AND PROFITS" DISTRIBUTED BY A
CORPORATION AS LIQUIDATING DIVIDENDS, WITH RESPECT TO SECURITIES WHICH
THE CORPORATION HAD ACQUIRED BY TAX-FREE EXCHANGES FOR ITS OWN STOCK
AND HAD LATER SOLD, THE BASIS BE THE TRANSFEROR'S COST RATHER THAN THE
VALUE OF THE SECURITIES AT THE TIME OF THEIR ACQUISITION BY THE
CORPORATION.  HELD: 

1.  THE REGULATION WAS REASONABLE AND A VALID EXERCISE OF THE RULE
MAKING POWER.  P. 546. 

2.  THOUGH THE TAX COURT RELIED ON SEC. 501 OF THE SECOND REVENUE ACT
OF 1940, IT IS UNNECESSARY HERE TO DETERMINE THE CONSTITUTIONALITY OF
APPLYING THAT SECTION RETROACTIVELY.  P. 547. 

COMMISSIONER OF INTERNAL REVENUE V. WHEELER ET AL., EXECUTORS, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 323 U.S. 694, TO REVIEW THE REVERSAL OF A DECISION OF THE
TAX COURT, 1 T.C. 640, WHICH SUSTAINED THE COMMISSIONER'S DETERMINATION
OF DEFICIENCIES IN INCOME TAX. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT HAS HELD SECTION
501(A) OF THE SECOND REVENUE ACT OF 1940 TO BE UNCONSTITUTIONAL.  FN1
THIS OF COURSE CALLED FOR GRANT OF CERTIORARI.  FN2 

SINCE OUR PROBLEM IS NOT COMPUTATION OF A TAX, THE FACTS RELEVANT TO
THE ISSUES IN THE FIVE CASES, CONSOLIDATED ON APPEAL, MAY BE SHORTLY
STATED.  IN 1925, JOHN H. WHEELER AND HIS WIFE, FRANCES, ORGANIZED
UNDER THE LAWS OF CALIFORNIA THE JOHN H. WHEELER COMPANY.  THEN AND
THEREAFTER THEY TRANSFERRED AN ASSORTMENT OF SECURITIES TO IT IN
EXCHANGE FOR SHARES OF ITS COMMON STOCK.  THE SECURITIES HAD COST THEM
$304,684.49 AND AT TRANSFER HAD A FAIR MARKET VALUE OF $491,800.  IN
EXCHANGE THE WHEELERS RECEIVED 4,918 SHARES WITH A PAR VALUE OF $100
EACH.  NO GAIN BY THEM WAS RECOGNIZED FOR INCOME-TAX PURPOSES BY REASON
OF THE EXCHANGE.  CF. INT. REV. CODE SEC. 112(B)(5). 

FOR PURPOSES OF DETERMINING ITS INCOME-TAX LIABILITY ON SUBSEQUENT
DISPOSITION OF THE SECURITIES, THE CORPORATION WAS OBLIGED TO AND DID
USE AS A COST BASE THE COST OF THE SECURITIES TO THE TRANSFERORS,
$304,684.49.  CF. INT. REV. CODE SEC. 113(A)(8).  BUT FOR ITS CORPORATE
ACCOUNTING THE CORPORATION SET UP A COST OF $491,800, MARKET VALUE AT
THE TIME OF ACQUISITION IN EXCHANGE FOR COMMON STOCK OF EQUAL PAR
VALUE.  THE WHOLE QUESTION IN THIS CASE IS WHICH OF THESE BASES IS TO
BE USED TO COMPUTE, PURSUANT TO SEC. 112(B)(7)(E) OF THE REVENUE ACT OF
1938, 52 STAT. 447, 488, THE AMOUNT OF "EARNINGS AND PROFITS"
DISTRIBUTED AS LIQUIDATING DIVIDENDS.  THE ACT OF 1938, TO INDUCE
CORPORATE LIQUIDATIONS, PERMITTED A QUALIFIED STOCKHOLDER TO ELECT
POSTPONEMENT OF A PORTION OF THE GAIN REALIZED ON A DECEMBER 1938
LIQUIDATION AND TO BE TAXED, AS FOR A DIVIDEND, ON "SO MUCH OF THE GAIN
AS IS NOT IN EXCESS OF HIS RATABLE SHARE OF THE EARNINGS AND PROFITS OF
THE CORPORATION  ..."  IF THE MARKET-VALUE BASIS IS USED FOR THE
SECURITIES ACQUIRED FROM THE WHEELERS AND LATER SOLD, THE OPERATIONS OF
THE COMPANY SHOWED A DEFICIT ON NOVEMBER 30, 1938, WHEN THE BOOKS WERE
CLOSED.  IF THE COST-TO-TRANSFERORS BASIS IS USED, "EARNINGS AND
PROFITS" WERE DISTRIBUTED TO RESPONDENTS, THE STOCKHOLDERS, IN THE
AMOUNT OF $132,813.48, AS COMPUTED BY THE COMMISSIONER.  FN3 

AFTER CONSIDERING THE APPLICABILITY OF SEC. 112(B)(7), THE
STOCKHOLDERS DULY DISSOLVED THE CORPORATION AND DISTRIBUTED ITS ASSETS
DURING DECEMBER 1938.  THEY ELECTED TO BE TAXED ON THE GAINS ON THEIR
SHARES PURSUANT TO SEC. 112(B)(7), AND THEY REPORTED, OF COURSE,
ACCORDING TO THE HIGHER OR MARKET-VALUE BASIS FOR THE SECURITIES
ACQUIRED AND DISPOSED OF BY THE COMPANY.  THE COMMISSIONER ASSERTED A
DEFICIENCY BASED ON THE LOWER COST TO THE TRANSFERORS.  IN EXPLAINING
HIS DETERMINATION HE RELIED ON SEC. 501(A) OF THE SECOND REVENUE ACT OF
1940, 54 STAT. 974, 1004, WHICH PROVIDES THAT EARNINGS AND PROFITS ON
THE SALE OR OTHER DISPOSITION OF PROPERTY SHALL BE DETERMINED BY USING
THE ADJUSTED BASIS FOR DETERMINING GAINS AND BY RECOGNIZING SUCH GAINS
TO THE EXTENT THAT THEY ARE RECOGNIZED FOR COMPUTING NET INCOME, AND ON
SEC. 501(C), WHICH MAKES THE PROVISIONS OF SEC. 501(A) APPLICABLE TO
PRIOR YEARS. 

THE TAX COURT SUSTAINED THE COMMISSIONER.  FN4  IT HELD SEC. 501(A)
OF THE ACT OF 1940 A "COMPLETE ANSWER" TO TAXPAYERS' CONTENTION, AND IT
OVERRULED THEIR CLAIM THAT IF THE SECTION WAS APPLICABLE TO INCREASE
THEIR 1938 LIABILITY IT WAS RETROACTIVE IN CONTRAVENTION OF THE FIFTH
AMENDMENT TO THE CONSTITUTION.  THE CIRCUIT COURT OF APPEALS AGREED
THAT THE SECTION WAS APPLICABLE, BUT HELD THAT SUCH RETROACTIVITY
RENDERED IT UNCONSTITUTIONAL. 

ALTHOUGH THE TERM "EARNINGS AND PROFITS" HAS LONG BEEN IN THE REVENUE
ACTS, IN CONNECTION WITH THE DEFINITION OF DIVIDENDS, IT HAS NEVER BEEN
DEFINED BY THE STATUTES  FN5  (EXCEPT IN SO FAR AS SEC. 501(A) OF THE
SECOND ACT OF 1940 HAS NOW DONE SO).  BUT UNDER THE REVENUE ACT OF 1934
AND SUCCEEDING ACTS, THE COMMISSIONER DEALT BY REGULATION WITH THAT
PORTION OF THE PROBLEM OF DEFINITION RELEVANT HERE.  ARTICLE 115-3 OF
TREASURY REGULATIONS 101, PROMULGATED UNDER THE 1938 ACT, PROVIDED IN
PART AS FOLLOWS:  "GAINS AND LOSSES WITHIN THE PURVIEW OF SECTION 112
OR CORRESPONDING PROVISIONS OF PRIOR ACTS ARE BROUGHT INTO THE EARNINGS
AND PROFITS AT THE TIME AND TO THE EXTENT SUCH GAINS AND LOSSES ARE
RECOGNIZED UNDER THAT SECTION."  FN6  THIS REGULATION, IF VALID,
DISPOSES OF THE CONTROVERSY, FOR WHEN THE CORPORATION SOLD ITS
SECURITIES ACQUIRED FROM THE WHEELERS IT REALIZED GAIN, BASED ON
TRANSFEROR'S COST, WHICH WAS FULLY RECOGNIZED UNDER SEC. 112. 

THE ONLY REASON TO DOUBT THE VALIDITY OF THE REGULATION IS FOUND IN
CERTAIN DECISIONS OF THE BOARD OF TAX APPEALS AND LOWER COURTS,
MENTIONED IN THE TAX COURT'S OPINION.  DESPITE THESE ADVERSE DECISIONS,
HOWEVER, THE COMMISSIONER PERSISTED IN APPLYING THE REGULATION.  THE
QUESTION WAS NEVER REVIEWED HERE.  BEFORE IT WAS FINALLY JUDICIALLY
CONSIDERED, CONGRESS ENACTED SEC. 501 OF THE SECOND REVENUE ACT OF
1940, AS THE COMMITTEE REPORTS SHOW,  FN7  TO "CLARIFY THE LAW" BY
ENACTING THE SUBSTANCE OF THE REGULATION.  BUT IF THE REGULATION ITSELF
WAS VALID AND EFFECTIVE, THE CLARIFYING AMENDMENT OF 1940 ADDED NOTHING
TO THE LIABILITY OF THESE TAXPAYERS, AND EVEN THOUGH THE TAX COURT
RELIED ON IT RATHER THAN ON THE REGULATION, NO QUESTION OF
RETROACTIVITY IS PRESENTED. 

WE THINK THE REGULATION IS REASONABLE AND A VALID EXERCISE OF THE
RULE-MAKING POWER.  THE TAXPAYERS ARE INSISTING ON USING AS A BASE FOR
TAX PURPOSES A FIGURE THAT IN ITSELF HAD NO RELATION TO TAXATION.  IT
WAS NO DOUBT PERMISSIBLE AND PERHAPS THE CORRECT ACCOUNTING, FOR
DETERMINING EARNED SURPLUS FOR DIVIDENDS AND SUCH CORPORATE PURPOSES,
FOR THE CORPORATION TO SET UP ITS BOOKS ON THE MARKET VALUE OF ITS
PROPERTY AT THE TIME OF ACQUISITION, WHICH DETERMINED THE VALUE OF THE
STOCK IT ISSUED.  BUT "EARNINGS AND PROFITS" IN THE TAX SENSE, ALTHOUGH
IT DOES NOT CORRESPOND EXACTLY TO TAXABLE INCOME, DOES NOT NECESSARILY
FOLLOW CORPORATE ACCOUNTING CONCEPTS EITHER.  FN8  CONGRESS HAS
DETERMINED THAT IN CERTAIN TYPES OF TRANSACTION THE ECONOMIC CHANGES
ARE NOT DEFINITIVE ENOUGH TO BE GIVEN TAX CONSEQUENCES, AND HAS CLEARLY
PROVIDED THAT GAINS AND LOSSES ON SUCH TRANSACTIONS SHALL NOT BE
RECOGNIZED FOR INCOME-TAX LIABILITY BUT SHALL BE TAKEN ACCOUNT OF
LATER.  SECS. 112, 113.  IT IS SENSIBLE TO CARRY THROUGH THE THEORY IN
DETERMINING THE TAX EFFECT OF SUCH TRANSACTIONS ON EARNINGS AND
PROFITS.  COMPARE COMMISSIONER V. SANSOME, 60 F.2D 931, AND SEE SEN.
REP. NO. 2156, 74TH CONG., 2D SESS., P. 19; H.R. REP. NO. 2894, 76TH
CONG., 3D SESS., P. 41.  INDEED, CONGRESS APPEARS TO HAVE PROVIDED FOR
THIS RESULT IN THE STATUTE ITSELF (SEC. 111(C) OF THE 1938 ACT), WHICH
DECLARES:  "IN THE CASE OF A SALE OR EXCHANGE, THE EXTENT TO WHICH THE
GAIN OR LOSS DETERMINED UNDER THIS SECTION SHALL BE RECOGNIZED FOR THE
PURPOSES OF THIS TITLE, SHALL BE DETERMINED UNDER THE PROVISIONS OF
RECOGNITION OF GAIN OR LOSS TO THE CORPORATION AT THE TIME OF THE
EXCHANGE WITH THE WHEELERS, BECAUSE IT WAS ISSUING ITS OWN STOCK AND SO
REALIZED NO GAIN OR LOSS.  BUT TO RECOGNIZE THE INCREMENT IN VALUE AS
AFFECTING EARNINGS AND PROFITS WOULD NO MORE HARMONIZE WITH THE TAXLESS
CHARACTER OF THE TRANSACTION THAN TO TREAT A REALIZED GAIN AS DOING SO.
THE SAME POLICY WHICH CARRIES OVER THE TRANSFEROR'S BASIS FOR PURPOSES
OF THE CORPORATION'S INCOME TAX (SEC. 113(A)(8)) REQUIRES CARRYING IT
OVER FOR DETERMINING THE TAXABILITY OF ITS DISTRIBUTIONS, AS THE
COMMISSIONER'S REGULATION DIRECTS:  GAINS AND LOSSES ARE TO BE BROUGHT
INTO EARNINGS AND PROFITS AT THE TIME AND "TO THE EXTENT" THAT THEY ARE
RECOGNIZED UNDER SEC. 112.  FINALLY, NO DOUBT OF THE REASONABLENESS OF
THE RULE CAN LINGER IN THE PRESENCE OF SEC. 501(A), BY WHICH CONGRESS
HAS INDICATED ITS EXPRESS APPROVAL OF THE PRINCIPLE THAT THE BASIS FOR
DETERMINING EARNINGS AND PROFITS SHALL BE THE BASIS FOR DETERMINING
GAIN. 

WE THEREFORE THINK THAT ON PRINCIPLES OFTEN REITERATED  FN10  THE
REGULATION IS VALID AND DECISIVE OF THIS ISSUE.  THERE IS NO NECESSITY
TO PREDICATE THE DETERMINATION OF DEFICIENCY ON THE 1940 AMENDMENT. 
THE 1940 AMENDMENT CONSEQUENTLY HAS NO RETROACTIVE EFFECT ON THE
LIABILITY OF THESE TAXPAYERS AND THE CONCLUSION OF THE COURT OF APPEALS
THAT IT IS UNCONSTITUTIONAL IS NOT WARRANTED.  THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED AND THAT OF THE TAX COURT IS AFFIRMED. 
REVERSED. 

FN1  143 F.2D 162. 

FN2  323 U.S. 694. 

FN3  THIS WAS SLIGHTLY MODIFIED BY THE TAX COURT IN AN ASPECT NOT
MATERIAL HERE. 

FN4  1 T.C. 640. 

FN5  SEE PAUL, SELECTED STUDIES IN FEDERAL TAXATION (SECOND SERIES,
1938) 140, 155 ET SEQ. 

FN6  THE PROVISION APPEARS IN REG. 94, ART. 115-3, UNDER THE ACT OF
1936; REG. 86, ART. 115-1, UNDER THE ACT OF 1934; AND IN REG. 103, SEC.
19.115-3 AND REG. 111, SEC. 29.115-3 UNDER THE INTERNAL REVENUE CODE. 

FN7  SEE H.R. REP. NO. 2894, 76TH CONG., 3D SESS., P. 41; SEN. REP.
NO. 2114, 76TH CONG., 3D SESS., P. 22. 

FN8  SEE 1 MERTENS, LAW OF FEDERAL INCOME TAXATION (1942) SEC. 9.33. 

FN9  SEE PAUL, SELECTED STUDIES IN FEDERAL TAXATION (SECOND SERIES,
1938) 193-95. 

FN10  BOSKE V. COMINGORE, 177 U.S. 459, 470; BREWSTER V. GAGE, 280
U.S. 327, 336; UNITED STATES V. KIRBY LUMBER CO., 284 U.S. 1, 3; FAWCUS
MACHINE CO. V. UNITED STATES, 282 U.S. 375, 378.  IT MAY ALSO BE NOTED
THAT THE REGULATION HAS THE SUPPORT OF THE DOCTRINE THAT REENACTMENT OF
THE STATUTE WITHOUT DISAPPROVAL OF REGULATIONS THEREUNDER GIVES THEM
ADDED SANCTION.  UNITED STATES V. DAKOTA-MONTANA OIL CO., 288 U.S. 459,
466; HELVERING V. WINMILL, 305 U.S. 79, 83; HELVERING V. GRIFFITHS, 318
U.S. 371, 395, 397. 

MR. JUSTICE ROBERTS IS OF OPINION THE JUDGMENT SHOULD BE AFFIRMED FOR
THE REASONS STATED BY THE CIRCUIT COURT OF APPEALS, 143 F.2D 162. 
..END :



MARKET STREET R. CO. V. COMM'N, 324 U.S. 548 


NOS. 510 AND 511.  ARGUED FEBRUARY 26, 1945.  - DECIDED MARCH 26, 1945. 
- 24 CAL.2D 378, 150 P.2D 196, AFFIRMED. 


1.  FOR THE PURPOSE OF APPEAL TO THIS COURT, THE JUDGMENT OF THE
SUPREME COURT OF CALIFORNIA HERE INVOLVED BECAME FINAL UPON THAT
COURT'S DENIAL OF A PETITION FOR REHEARING; AND AN APPEAL WAS NOT
PREMATURE THOUGH TAKEN BEFORE EXPIRATION OF THE 30-DAY PERIOD IN WHICH,
UNDER THE STATE LAW AND PRACTICE, THE STATE COURT COULD HAVE MODIFIED
THE JUDGMENT.  P. 551. 

2.  AN ORDER OF THE STATE COMMISSION REQUIRING THE APPELLANT STREET
RAILWAY COMPANY TO REDUCE ITS BASE CASH FARE FROM SEVEN TO SIX CENTS,
HELD, UNDER THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION, NOT A
DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW.  PP. 553, 569. 

(A)  THERE IS NO FOUNDATION IN THE RECORD FOR THE COMPANY'S
CONTENTION THAT IN THE PROCEEDINGS BEFORE THE COMMISSION IT WAS GIVEN
NO ADEQUATE NOTICE THAT ITS RATES WERE UNDER ATTACK AND THEREFORE NO
OPPORTUNITY FOR A HEARING ON THE REASONABLENESS OF ITS RATES.  P. 558. 

(B)  THE ORDER WAS NOT UNSUPPORTED BY EVIDENCE AND WAS NOT RENDERED
INVALID BY THE FACT THAT THE COMMISSION EVALUATED THE COMPANY'S
EXPERIENCE FOR ITSELF WITHOUT THE AID OF EXPERT TESTIMONY.  P. 559. 

(C)  THE ORDER WAS NOT INVALID AS BASED ON MATTERS OUTSIDE THE
RECORD.  THE COMMISSION'S INCIDENTAL REFERENCE TO THE COMPANY'S OWN
REPORTS, ALTHOUGH THEY WERE NOT FORMALLY IN EVIDENCE IN THE PROCEEDING,
DID NOT DENY DUE PROCESS, IN THE ABSENCE OF ANY SHOWING OF ERROR OR
PREJUDICE.  P. 561. 

(D)  AS THE RATE PRESCRIBED BY THE COMMISSION IS NOT HERE FOUND TO BE
CONFISCATORY, IT IS UNNECESSARY TO DETERMINE WHETHER "VALUE OF SERVICE"
WOULD JUSTIFY A RATE WHICH DOES NOT YIELD A FAIR RETURN.  TO THE EXTENT
THAT THE COMMISSION WAS INFLUENCED BY CONSIDERATIONS OF THE VALUE OF
THE SERVICE IN THIS CASE, THERE WAS NO DENIAL TO THE COMPANY OF ANY
CONSTITUTIONAL RIGHT.  P. 562. 

(E)  IN VIEW OF THE COMPANY'S ECONOMIC PLIGHT, THE ORDER WAS NOT
INVALID EVEN THOUGH UNDER THE PRESCRIBED RATE THE COMPANY WOULD OPERATE
AT A LOSS.  THAT THE COMMISSION USED AS A RATE BASE THE PRICE AT WHICH
THE COMPANY HAD OFFERED TO SELL ITS PROPERTIES TO THE MUNICIPALITY, AND
DISREGARDED THEORETICAL REPRODUCTION COSTS, DID NOT VITIATE THE ORDER. 
P. 564. 

THE DUE PROCESS CLAUSE DOES NOT INSURE VALUES NOR REQUIRE RESTORATION
OF VALUES THAT HAVE BEEN LOST BY THE OPERATION OF ECONOMIC FORCES. 

(F)  THAT THE TEST OF EXPERIENCE WHICH THE ORDER CONTEMPLATED WAS
UNAVAILABLE CAN NOT AFFECT ITS CONSTITUTIONAL VALIDITY, WHERE THE
COMPANY ITSELF, BY LITIGATION AND SUBSEQUENT SALE OF THE PROPERTY, HAD
FRUSTRATED SUCH TEST.  P. 568. 

MARKET STREET RAILWAY CO. V. RAILROAD COMMISSION OF CALIFORNIA ET AL. 

APPEALS FROM THE SUPREME COURT OF CALIFORNIA. 

APPEALS FROM A JUDGMENT AFFIRMING AN ORDER OF THE STATE COMMISSION
WHICH DIRECTED THE RAILWAY TO REDUCE ITS FARES FROM SEVEN TO SIX
CENTS.  BECAUSE OF UNCERTAINTY AS TO WHETHER THE FIRST APPEAL WAS
PREMATURE, A SECOND APPEAL WAS TAKEN; THE SECOND APPEAL IS HERE
DISMISSED AND THE FIRST HEARD ON THE MERITS. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

TWO APPEALS HAVE BEEN TAKEN FROM A SINGLE JUDGMENT OF THE SUPREME
COURT OF CALIFORNIA BECAUSE COUNSEL WAS UNCERTAIN WHEN THE JUDGMENT
BECAME FINAL FOR OUR JURISDICTIONAL PURPOSES.  THE DECISION WAS
RENDERED JULY 1, 1944; IT CONCLUDED, "THE ORDER IS AFFIRMED"; A
PETITION FOR REHEARING WAS DENIED JULY 27, 1944.  THE FIRST APPEAL WAS
APPLIED FOR AND ALLOWED ON JULY 31, 1944.  IF THE JUDGMENT BECAME FINAL
ON DENIAL OF REHEARING, THIS APPEAL WAS TIMELY.  HOWEVER, THE
CALIFORNIA RULES ON APPEAL EXPRESSLY PROVIDE THAT A DECISION OF THE
SUPREME COURT "BECOMES FINAL THIRTY DAYS AFTER FILING UNLESS OTHERWISE
ORDERED PRIOR TO THE EXPIRATION OF SAID 30-DAY PERIOD."  FN1
REMITTITUR DOES NOT ISSUE UNTIL THE END OF THE 30-DAY PERIOD.  FN2  IT
ISSUED ON AUGUST 1 AND CERTIFIED, ACCORDING TO PRACTICE, THAT "THE
FOREGOING IS A TRUE COPY OF AN ORIGINAL JUDGMENT ENTERED IN THE ABOVE
ENTITLED CAUSE ON THE 1ST DAY OF JULY, 1944; AND NOW REMAINING OF
RECORD IN MY OFFICE."  IF THE DATE OF ITS ISSUE, BEING ALSO THE DATE OF
FINALITY FIXED BY THE RULE, GOVERNS FINALITY FOR PURPOSES OF OUR
JURISDICTION, THE JUDGMENT WAS NOT A FINAL ONE AT THE TIME THE FIRST
APPEAL WAS GRANTED.  ON THE CHANCE THAT IT MIGHT BE DISMISSED AS
PREMATURE, A SECOND APPEAL WAS PRESENTED AND ALLOWED ON SEPTEMBER 21. 

OUR JURISDICTION TO REVIEW A STATE COURT JUDGMENT IS CONFINED BY LONG
STANDING STATUTE TO ONE WHICH IS FINAL.  JUDICIAL CODE, SEC. 237, 28
U.S.C. SEC. 344.  FINAL IT MUST BE IN TWO SENSES:  IT MUST BE SUBJECT
TO NO FURTHER REVIEW OR CORRECTION IN ANY OTHER STATE TRIBUNAL; IT MUST
ALSO BE FINAL AS AN EFFECTIVE DETERMINATION OF THE LITIGATION AND NOT
OF MERELY INTERLOCUTORY OR INTERMEDIATE STEPS THEREIN.  IT MUST BE THE
FINAL WORD OF A FINAL COURT. 

WE HAVE HELD THAT FINALITY OF A JUDGMENT OF A STATE COURT FOR
DETERMINING THE TIME WITHIN WHICH OUR JURISDICTION TO REVIEW MAY BE
INVOKED IS NOT CONTROLLED BY THE DESIGNATION APPLIED IN STATE
PRACTICE.  DEPARTMENT OF BANKING V. PINK, 317 U.S. 264; COLE V.
VIOLETTE, 319 U.S. 581.  THE JUDGMENT FOR OUR PURPOSES IS FINAL WHEN
THE ISSUES ARE ADJUDGED.  SUCH FINALITY IS NOT DEFERRED BY THE
EXISTENCE OF A LATENT POWER IN THE RENDERING COURT TO REOPEN OR REVISE
ITS JUDGMENT.  THE WAITING PERIOD PRESCRIBED BY THE STATUTE HERE SEEMS
TO RESERVE A POWER OF THAT CHARACTER.  THE DECISION DURING THIS PERIOD
DOES NOT LACK THE ATTRIBUTES OF AN ADJUDICATION, IT IS NOT AWAITING
LAPSE OF TIME TO BECOME A JUDGMENT, IT MERELY IS SUBJECT TO
MODIFICATION.  WHEN THIS PERIOD RUNS, UNLESS THE COURT HAS MOVED
MEANWHILE, IT BECOMES POWERLESS TO CHANGE OR MODIFY THE JUDGMENT. 
OAKLAND V. PACIFIC COAST LUMBER CO., 172 CAL. 332, 337, 156 P. 468;
ESTATE OF ROSS, 189 CAL. 317, 318, 207 P. 1014.  THE RULE IS THUS A
LIMITATION ON THE TIME DURING WHICH THE COURT MAY RECONSIDER, WHICH IN
ABSENCE OF SUCH RULE MIGHT EXPIRE ONLY WITH THE END OF THE TERM OR SOME
OTHER EVENT DETERMINATIVE UNDER LOCAL LAW.  SUCH LATENT POWERS OF STATE
COURTS OVER THEIR JUDGMENTS ARE TOO VARIABLE AND INDETERMINATE TO SERVE
AS TESTS OF OUR JURISDICTION.  OUR TEST IS A PRACTICAL ONE.  WHEN THE
CASE IS DECIDED, THE TIME TO SEEK OUR REVIEW BEGINS TO RUN.  A TIMELY
PETITION FOR REHEARING DEFERS FINALITY FOR OUR PURPOSES UNTIL IT IS
ACTED UPON OR UNTIL POWER TO ACT UPON IT HAS EXPIRED AS HERE IT WOULD
APPEAR TO DO AT THE END OF THE 30-DAY PERIOD.  FN3  IF REHEARING IS
GRANTED, THE JUDGMENT IS OPENED, AND DOES NOT BECOME FINAL AS A
PREREQUISITE TO APPLICATION FOR REVIEW BY US UNTIL DECISION IS RENDERED
UPON REHEARING. 

WE POSTPONED CONSIDERATION OF JURISDICTION UNTIL HEARING ON THE
MERITS.  FN4  WE HOLD THAT THIS JUDGMENT BECAME FINAL ON DENIAL OF
REHEARING, THAT THE FIRST APPEAL WAS TIMELY AND THAT THE PRECAUTIONARY
SECOND APPEAL IS DUPLICATION.  ACCORDINGLY THE APPEAL IN NO. 511 IS
DISMISSED AND THAT IN NO. 510 IS ENTERTAINED UPON ITS MERITS. 

THE MARKET STREET RAILWAY COMPANY AT THE COMMENCEMENT OF THESE
PROCEEDINGS OPERATED A SYSTEM OF PASSENGER TRANSPORTATION BY STREET CAR
AND BY BUS IN SAN FRANCISCO AND ITS ENVIRONS.  THE RAILROAD COMMISSION
OF CALIFORNIA INSTITUTED ON ITS OWN MOTION AN INQUIRY INTO THE
COMPANY'S RATES AND SERVICE.  AFTER HEARINGS, AN ORDER WAS PROMULGATED
REDUCING THE FARE FROM SEVEN TO SIX CENTS.  FN5 THE COMPANY, AFTER
REHEARING WAS DENIED,  FN6  OBTAINED REVIEW BY THE SUPREME COURT OF
CALIFORNIA.  IT ALSO OBTAINED A STAY OF THE COMMISSION'S ORDER,
CONDITIONED UPON IMPOUNDING THE DISPUTED ONE CENT PER PASSENGER TO
ABIDE SETTLEMENT OF THE ISSUES UPON WHICH ITS OWNERSHIP WOULD DEPEND. 
THE SUPREME COURT OF CALIFORNIA AFFIRMED THE ORDER  FN7  AND APPEAL IS
TAKEN TO THIS COURT.  MEANWHILE THE COMPANY SOLD ITS OPERATIVE
PROPERTIES TO THE CITY OF SAN FRANCISCO.  THE CASE IS SAVED FROM BEING
MOOT ONLY BECAUSE ITS DECISION IS NECESSARY TO DETERMINE WHETHER THE
COMPANY IS ENTITLED TO THE IMPOUNDED PORTION OF THE FARES OR WHETHER
THE MONEY SHALL BE REFUNDED TO PASSENGERS MAKING CLAIMS AND UNCLAIMED
AMOUNTS THEREOF BE PAID OVER TO THE STATE, AS REQUIRED BY CONDITIONS OF
THE STAY ORDER. 

THE APPEAL RAISES CONSTITUTIONAL ISSUES ONLY.  THE CONTENTION IS THAT
THE ORDER DEPRIVES THE APPELLANT OF ITS PROPERTY WITHOUT DUE PROCESS OF
LAW, CONTRARY TO THE FOURTEENTH AMENDMENT.  APPELLANT CLAIMS DENIALS OF
DUE PROCESS IN MATTERS OF PROCEDURE IN THAT IT HAD NO ADEQUATE NOTICE
THAT ITS RATES WERE UNDER ATTACK OR ADEQUATE OPPORTUNITY FOR A HEARING
THEREON, THAT THE ORDER IN SEVERAL VITAL PARTICULARS IS NOT SUPPORTED
BY SUBSTANTIAL EVIDENCE OR BY ANY EVIDENCE, AND THAT IT WAS IMPROPERLY
BASED ON MATTERS OUTSIDE OF THE RECORD ON WHICH THERE WAS NO
OPPORTUNITY TO CROSS-EXAMINE OR TO BE HEARD.  IT CLAIMS A TAKING OF ITS
PROPERTY AS A RESULT OF THE ORDER ON THE GROUND THAT IT WOULD FORCE THE
COMPANY TO OPERATE AT A LOSS BECAUSE THE COMMISSION USED A RATE BASE OF
$7,950,000, THE PRICE AT WHICH APPELLANT HAD OFFERED TO SELL ITS
OPERATIVE PROPERTIES TO THE CITY, AND DID NOT CONSIDER REPRODUCTION
COST, HISTORICAL COST, PRUDENT INVESTMENT, OR CAPITALIZATION BASES, ON
ANY OF WHICH UNDER CONVENTIONAL ACCOUNTING THE SIX-CENT FARE WOULD
PRODUCE NO RETURN ON ITS PROPERTY AND WOULD FORCE A SUBSTANTIAL
OPERATING DEFICIT UPON THE COMPANY. 

THE APPELLANT IN SUPPORT OF ITS CONTENTIONS THAT IT HAS BEEN DENIED
DUE PROCESS IN PROCEDURE AND HAS BEEN SUBJECTED TO AN UNCONSTITUTIONAL
TAKING OF ITS PROPERTY INVOKES MANY DECISIONS OF THIS COURT IN WHICH
STATEMENTS HAVE BEEN MADE THAT SEEM TO SUPPORT ITS CONTENTIONS.  BUT IT
SHOULD BE NOTED AT THE OUTSET THAT MOST OF OUR CASES DEAL WITH
UTILITIES WHICH HAD EARNING OPPORTUNITIES, AND PUBLIC REGULATION
CURTAILED EARNINGS OTHERWISE POSSIBLE.  BUT IF THERE WERE NO PUBLIC
REGULATION AT ALL, THIS APPELLANT WOULD BE A PARTICULARLY AILING UNIT
OF A GENERALLY SICK INDUSTRY.  THE PROBLEM OF RECONCILING THE PATRONS'
NEEDS AND THE INVESTORS' RIGHTS IN AN ENTERPRISE THAT HAS PASSED ITS
ZENITH OF OPPORTUNITY AND USEFULNESS, WHOSE INVESTMENT ALREADY IS
IMPAIRED BY ECONOMIC FORCES, AND WHOSE EARNING POSSIBILITIES ARE
ALREADY INVADED BY COMPETITION FROM OTHER FORMS OF TRANSPORTATION, IS
QUITE A DIFFERENT PROBLEM.  THE COMPANY'S PRACTICAL SITUATION THROWS
IMPORTANT LIGHT BOTH ON THE QUESTION WHETHER THE RATE REDUCTION HAS
TAKEN ITS PROPERTY AND ALSO UPON THE CRITICISMS IT MAKES OF THE CONDUCT
OF THE HEARINGS. 

TRANSPORTATION HISTORY OF SAN FRANCISCO FOLLOWS A PATTERN NOT
UNFAMILIAR.  THIS PROPERTY HAS PASSED THROUGH CYCLES OF COMPETITION,
CONSOLIDATION AND MONOPOLY, AND NEW FORMS OF COMPETITION; IT HAS SEEN
DAYS OF PROSPERITY, DECLINE, AND SALVAGE.  IN THE 1850'S AN OMNIBUS
SERVICE BEGAN TO OPERATE IN SAN FRANCISCO.  IN THE 1860'S CAME THE
HORSE CAR.  THE 1870'S SAW THE BEGINNING OF THE CABLE CAR, FOR WHICH
THE CONTOUR OF THE CITY WAS PECULIARLY ADAPTED.  THE MARKET STREET
RAILWAY COMPANY WAS INCORPORATED IN 1893 AND TOOK OVER 11 OF THE 17
STREET CAR LINES THEN INDEPENDENTLY OPERATED IN THE CITY.  IN 1902,
UNITED RAILROADS OF SAN FRANCISCO WAS ORGANIZED.  THIS CONSOLIDATED
UNDER ONE OPERATING CONTROL PROPERTIES OF THE MARKET STREET COMPANY AND
FIVE OTHER LINES, COMPRISING 229 MILES OF TRACK, MUCH OF WHICH WAS
CABLE-OPERATED.  IT SUFFERED GREATLY FROM THE EARTHQUAKE AND FIRE OF
1906, BUT CARRIED OUT A CONSIDERABLE PROGRAM OF RECONSTRUCTION BETWEEN
1906 AND 1910.  IN 1921 IT FAILED TO PAY INTEREST ON OUTSTANDING
BONDS.  BONDHOLDERS ACQUIRED THE PROPERTIES AND REVIVED THE MARKET
STREET RAILWAY COMPANY, WHICH HAD BEEN A DORMANT SUBSIDIARY OF UNITED,
TO OPERATE THEM. 

IN 1912 THE CITY AND COUNTY OF SAN FRANCISCO BEGAN OPERATION OF A
MUNICIPAL STREET RAILWAY LINE.  THIS LINE IS NOT AND NEVER HAS BEEN
UNDER THE RAILROAD COMMISSION'S JURISDICTION.  IT EXPANDED RAPIDLY, ITS
ROUTES IN SOME INSTANCES PARALLEL THOSE OF APPELLANT, AND ITS
COMPETITION HAS BEEN SERIOUS.  THROUGHOUT THE PERIOD OF COMPETITION THE
MUNICIPAL LINES HAVE OPERATED ON A FIVE-CENT FARE.  THE MARKET STREET
LINE ALSO OPERATED ON A FIVE-CENT FARE UNTIL JULY 6, 1937.  IN THAT
YEAR IT APPLIED TO THE COMMISSION FOR AN INCREASE TO A SEVEN-CENT
FARE.  THIS WAS DENIED, BUT A TWO-CENT TRANSFER CHARGE AND OTHER
ADJUSTMENTS WERE AUTHORIZED.  IN MARCH 1938 THE COMPANY AGAIN
PETITIONED FOR A SEVEN-CENT FARE, WITH REDUCTION FOR SCHOOL CHILDREN. 
THE COMMISSION AUTHORIZED A SEVEN-CENT FARE, BUT REQUIRED SOME
CONCESSION TO TOKEN BUYERS.  A FEW MONTHS LATER THE COMPANY AGAIN ASKED
A STRAIGHT SEVEN-CENT FARE AND RELIEF FROM THE TOKEN RATE.  THE
COMMISSION DIRECTED THE COMPANY TO APPLY TO THE CITY FOR PERMISSION TO
ABANDON CERTAIN LINES AND TO PROTECT IT AGAINST "JITNEY COMPETITION,"
STIPULATING THAT THE SEVEN-CENT FARE COULD BE MADE EFFECTIVE IF THE
CITY FAILED TO RESPOND.  THE CITY DID NOT ACT, AND THE SEVEN-CENT FARE
BECAME EFFECTIVE JANUARY 1, 1939. 

BUT THE INCREASE OF FARE BROUGHT NO INCREASE OF REVENUE.  BOTH
TRAFFIC AND REVENUE CONTINUED TO DECLINE, AND IN 1941 REACHED THE
LOWEST POINT IN TWENTY YEARS.  THEN CAME WAR, BRINGING ACCELERATED
ACTIVITY, INCREASE OF POPULATION OF THE CITY, RUBBER AND GAS SHORTAGE,
RESTRICTIONS ON PURCHASE OF NEW AND RETIREMENT OF MANY OLD
AUTOMOBILES.  TRAFFIC AND REVENUES SHOWED A SUDDEN INCREASE.  THE
COMMISSION FOUND, HOWEVER, THAT THE SERVICE HAD CONSTANTLY DETERIORATED
AND WAS WORSE UNDER THE SEVEN-CENT FARE THAN UNDER THE FORMER FIVE-CENT
RATE.  IT RECOGNIZED THAT SOME OF THE CAUSES WERE BEYOND THE COMPANY'S
CONTROL.  BUT AFTER ALLOWANCE FOR THOSE CAUSES, IT ALSO FOUND EVIDENCE
OF LONG-TIME NEGLECT, MISMANAGEMENT, AND INDIFFERENCE TO URGENT PUBLIC
NEED.  IT FOUND THE COMPANY'S SERVICE INFERIOR TO THE SERVICE OF THE
MUNICIPAL LINES, ALTHOUGH APPELLANT CHARGED A 40 PER CENT HIGHER FARE. 
DEFECTS IN SERVICE CONSISTED OF FAILURE TO OPERATE ON SCHEDULE, LONG
INTERVALS BETWEEN CARS, FOLLOWED BY SEVERAL CARS OPERATING WITH LITTLE
HEADWAY, OVERLOADING, INADEQUATE INSPECTION, AND INADEQUATELY
MAINTAINED ROLLING STOCK.  THE COMPANY HAD SOME 70 CARS OUT OF
OPERATION AND IN STORAGE BECAUSE OF SHORTAGE OF MANPOWER.  ITS STREET
CAR ROLLING STOCK WAS OBSOLETE, 73 ELECTRIC CARS AND 12 CABLE CARS
BEING OUT OF SERVICE.  NONE OF THE CARS WAS MODERN.  THE MUNICIPAL
LINES HAD TRIED TO LEASE THE UNUSED CARS FOR OPERATION ON ITS LINES,
BUT THE COMPANY REFUSED.  THE CITY WAS DENIED PRIORITIES FOR PURCHASE
OF NEW BUSSES BY FEDERAL AUTHORITIES BECAUSE OF IDLE ROLLING STOCK IN
THE CITY.  THE COMMISSION CONCLUDED THAT THE REASON FOR THE COMPANY'S
DECLINING TO LEASE FOR A FAIR RENTAL ROLLING STOCK IT COULD NOT USE WAS
FEAR OF COMPETITION.  THE COMPANY WAS HANDICAPPED IN MANPOWER, THE
MUNICIPAL LINES OFFERING SOMEWHAT BETTER WAGES AND WORKING CONDITIONS
THAT SEEMED MORE ATTRACTIVE.  THE ENTIRE SYSTEM WAS SUFFERING FROM
DEFERRED MAINTENANCE, THE AMOUNT EXPENDED FOR WAY AND STRUCTURES
MAINTENANCE HAVING BEEN STEADILY REDUCED, BOTH IN DOLLARS AND IN
PROPORTION OF TOTAL OPERATING COSTS. 

THE COMMISSION DISAGREED WITH THE COMPANY AS TO THE USE TO BE MADE OF
WAR-TIME INCREASE IN REVENUES.  THE COMPANY SAID IT HAD NO DEFINITE
PLAN FOR SETTING ASIDE ANYTHING FOR MAINTENANCE.  THE MANAGEMENT
THOUGHT ITS FIRST OBLIGATION WAS TO DISCHARGE ITS DEBTS.  THE
COMMISSION TOOK THE VIEW THAT ALLOWANCES FOR DEPRECIATION AS PART OF
THE COSTS OF OPERATION SHOULD BE SPENT IN REPLACEMENT OF DEPRECIATED
PROPERTY, AND NOT FOR PAYMENT OF DEBTS. 

REVIEWING THE FINANCIAL RESULTS OF FARE INCREASES, THE COMMISSION
CONCLUDED THAT THE COMPANY WOULD REAP NO LASTING BENEFIT FROM RATES IN
EXCESS OF FIVE CENTS, DUE TO THE TENDENCY OF A HIGHER RATE TO
DISCOURAGE PATRONAGE.  THE WAR TRAFFIC THE COMMISSION THOUGHT
TEMPORARY.  BUT IT CONCLUDED THAT A SIX-CENT FARE WOULD SUFFICIENTLY
STIMULATE TRAFFIC TO LEAVE AFTER OPERATING EXPENSES APPROXIMATELY A SIX
PER CENT RETURN ON A RATE BASE OF $7,950,000.  THIS WAS THE FIGURE AT
WHICH THE COMPANY HAD OFFERED TO SELL ITS OPERATIVE PROPERTIES TO THE
CITY.  ACCORDINGLY THE COMMISSION FOUND THE SIX CENTS TO BE A
REASONABLE RATE TO THE COMPANY AND TO BE ALL OR MORE THAN THE
REASONABLE VALUE OF THE SERVICES BEING RENDERED TO PATRONS.  IT
CONSIDERED THIS RATE TO BE EXPERIMENTAL AND KEPT THE PROCEEDING OPEN
FOR SUCH FURTHER ORDERS AS MIGHT BE JUST AND REASONABLE.  THE COMPANY
APPLIED FOR REHEARING ON SUBSTANTIALLY THE GROUNDS IT URGES HERE.  ITS
ARGUMENTS WERE CONSIDERED AT LENGTH IN AN OPINION WHICH DENIED
REHEARING.  THE SUPREME COURT OF CALIFORNIA OVERRULED ALL OF THE
COMPANY'S OBJECTIONS AND AFFIRMED THE COMMISSION'S ORDER.    THE
REDUCED RATE NEVER TOOK EFFECT.  THE COMPANY OBTAINED DELAY FROM THE
COMMISSION AND A STAY ORDER FROM THE COURT.  IT THEN SOLD ITS
PROPERTIES TO THE CITY, WHICH TOOK OVER AND CONTINUED THE SEVEN-CENT
FARE.  SO THE ANTICIPATIONS OF THE COMMISSION AS TO INCREASED PATRONAGE
FROM THE RATE REDUCTION NEVER HAVE BEEN PUT TO THE TEST OF EXPERIENCE. 
OUR REVIEW CONSIDERS ONLY WHETHER THE ORDER WAS VALID WHEN AND AS
MADE. 

1.  APPELLANT SAYS THAT THE ORDER IS INVALID BECAUSE IT WAS DENIED A
FAIR HEARING, GIVEN NO ADEQUATE NOTICE THAT ITS RATES WERE UNDER
ATTACK, AND HENCE WAS AFFORDED NO OPPORTUNITY FOR A HEARING ON THE
REASONABLENESS OF ITS RATES.  WE FIND THIS CONTENTION TO HAVE NO
FOUNDATION IN THE RECORD.  THE ORDER OF THE COMMISSION INSTITUTING THE
PROCEEDING RECITED ITS BELIEF "THAT PUBLIC INTEREST DEMANDS AN INQUIRY
INTO THE REASONABLENESS OF THE RATES, AS WELL AS THE SUFFICIENCY AND
ADEQUACY OF THE SERVICE RENDERED" BY APPELLANT, AND INVESTIGATION WAS
ORDERED OF BOTH.  DUE NOTICE OF THE PROCEEDING WAS GIVEN AND IT WAS
ENTITLED AN INVESTIGATION "INTO THE REASONABLENESS OF THE RATES AND
CHARGES, AND INTO THE SUFFICIENCY AND ADEQUACY OF THE" SERVICE.  THE
HEARING WAS OPENED WITH A SIMILAR STATEMENT BY THE COMMISSION.  THE
RECORD IS REPLETE WITH EVIDENCE THAT WOULD HAVE NO BEARING ON THE
QUESTIONS OF SERVICE EXCEPT AS FARES WERE INVOLVED.  EXPERTS OF THE
COMMISSION TESTIFIED AT LENGTH AS TO FINANCIAL HISTORY AND RATE
EXPERIENCE OF THE COMPANY.  THE COMPANY'S PRESIDENT TESTIFIED
CONCERNING THE RATE SITUATION AND THE COMPANY'S EXPERIENCE WITH THE
SEVEN-CENT FARE.  ITS COUNSEL PUT IN EVIDENCE THE COMMISSION'S FORMER
DECISIONS AUTHORIZING INCREASES IN FARES. 

THE COMPANY PARTICULARLY COMPLAINS THAT IT HAD NO NOTICE THAT THE
COMMISSION WAS RECEIVING EVIDENCE OF ITS OFFER TO SELL ITS PROPERTIES
FOR $7,950,000 FOR USE AS A RATE BASE.  THE OFFER WAS RECEIVED IN
EVIDENCE WITHOUT LIMITATION OR STATEMENT OF ITS PURPOSE.  NOTHING
APPEARS TO MISLEAD OR ENTRAP THE COMPANY OR TO LULL IT INTO A SENSE OF
SECURITY.  IT SEEMS SIMPLY TO HAVE ASSUMED THAT NO EXPLANATION OF THE
OFFER WAS NECESSARY.  DOUBTLESS THE DECISION AND THE GROUNDS OF
DECISION WERE UNEXPECTED.  BUT SURPRISE IS NOT NECESSARILY WANT OF DUE
PROCESS. 

WE FIND THAT THE COMPANY HAD REASONABLE NOTICE THAT ITS RATES WERE
UNDER ATTACK AND WAS NOT DENIED OPPORTUNITY TO BE HEARD THEREON.  WE
CAN WELL UNDERSTAND HOW COUNSEL'S ATTENTION BECAME DIVERTED TO MORE
SHARPLY CONTESTED ASPECTS OF THE CASE.  BUT EVEN IF A MORE CONVINCING
SHOWING WERE MADE THAT THE COMPANY HAD RELEVANT EVIDENCE TO BE HEARD,
WE FIND NO ADEQUATE EXCUSE FOR THE FAILURE TO OFFER IT IN THE
PROCEEDING.  NO OFFER WAS REJECTED, NO REQUEST FOR TIME TO OBTAIN SUCH
EVIDENCE WAS DENIED.  A MISAPPREHENSION BY A LITIGANT OF THE STEPS
WHICH ITS BEST INTERESTS REQUIRE DURING A TRIAL MAY BE APPEALING
GROUNDS FOR A PLEA TO THE DISCRETION OF THE HEARING TRIBUNAL FOR
ANOTHER CHANCE, BUT IT IS NOT GROUNDS FOR OUR INTERFERENCE AS A DENIAL
OF CONSTITUTIONAL RIGHTS. 

2.  IT IS NEXT CONTENDED THAT THE ORDER IS INVALID UNDER THE DUE
PROCESS CLAUSE BECAUSE IT IS UNSUPPORTED BY EVIDENCE AND IS BASED ON
THE COMMISSION'S SPECULATION AND CONJECTURE.  THIS CHARGE RELATES
PARTICULARLY TO THOSE FINDINGS WHICH PREDICT THE EFFECT OF A RATE
REDUCTION IN STIMULATING TRAFFIC.  THE COMMISSION'S ESTIMATES AND
PREDICTIONS DO NOT FOLLOW ANY PARTICULAR TESTIMONY.  APPELLANT URGES
THAT SUCH PREDICTIVE FINDINGS MAY BE MADE ONLY ON EXPERT TESTIMONY,
SUBJECT TO CROSS-EXAMINATION, EXPLANATION, AND REBUTTAL, AND MAY NOT BE
BASED ON THE COMMISSION'S OWN EXPERT KNOWLEDGE.  VARIOUS CONSIDERATIONS
ARE ADVANCED TO SHOW THAT THE COMMISSION'S PREDICTIONS WERE BASED ON
INNOCENT ANALYSIS AND WERE IMPROBABLE. 

APPELLANT RELIES UPON OUR HOLDING IN OHIO BELL TELEPHONE CO. V.
PUBLIC UTILITIES COMMISSION, 301 U.S. 292.  IN THAT CASE THE COMMISSION
ORDERED REFUNDS "UPON THE STRENGTH OF EVIDENTIAL FACTS NOT SPREAD UPON
THE RECORD."  THIS CONSISTED "OF INFORMATION SECRETLY COLLECTED AND
NEVER YET DISCLOSED.  THE COMPANY PROTESTED.  IT ASKED DISCLOSURE OF
THE DOCUMENTS INDICATIVE OF PRICE TRENDS, AND AN OPPORTUNITY TO EXAMINE
THEM, TO ANALYZE THEM, TO EXPLAIN AND TO REBUT THEM.  THE RESPONSE WAS
A CURT REFUSAL.  UPON THE STRENGTH OF THESE UNKNOWN DOCUMENTS REFUNDS
HAVE BEEN ORDERED FOR SUMS MOUNTING INTO MILLIONS, THE COMMISSION
REPORTING ITS CONCLUSION, BUT NOT THE UNDERLYING PROOFS.  THE PUTATIVE
DEBTOR DOES NOT KNOW THE PROOFS TODAY.  THIS IS NOT THE FAIR HEARING
ESSENTIAL TO DUE PROCESS.  IT IS CONDEMNATION WITHOUT TRIAL."  ID. AT
300.  NOTHING OF THAT KIND OCCURRED IN THIS CASE.  THE BASIS FOR A
JUDGMENT IS HERE IN THE RECORD.  THE COMPANY ITSELF PUT IN EVIDENCE
DECISIONS BY THE COMMISSION IN WHICH BY CAUTIOUS STEPS IT PERMITTED
ADVANCE OF THE RATES FROM FIVE TO SEVEN CENTS.  TRAFFIC RECORDS BEFORE
AND AFTER EACH ADVANCE ARE IN EVIDENCE.  ALSO IN THE RECORD IS THE
TRAFFIC EXPERIENCE OF THE COMPETING MUNICIPAL LINE, WHICH DID NOT
INCREASE ITS FARES AND WHICH DID NOT SUFFER DECLINES IN TRAFFIC AND
REVENUES COMPARABLE TO THOSE WHICH FOLLOWED THIS COMPANY'S INCREASE OF
FARES.  THIS IS NOT A CASE WHERE THE DATA BASIC TO A JUDGMENT HAVE BEEN
WITHHELD FROM THE RECORD.  THE COMPLAINT IS THAT THE COMMISSION FORMED
ITS OWN CONCLUSIONS WITHOUT THE AID OF EXPERT OPINIONS.  IT IS
CONTENDED THAT THE COMMISSION SHOULD DRAW CONCLUSIONS FROM THESE FACTS
ONLY UPON HEARING TESTIMONY OF EXPERTS AS TO THE CONCLUSIONS THEY WOULD
DRAW FROM THE FACTS OF RECORD.  EXPERTS' JUDGMENTS, HOWEVER, WOULD NOT
BIND THE COMMISSION.  THEIR TESTIMONY WOULD BE IN THE NATURE OF
ARGUMENT OR OPINION, AND THE WEIGHT TO BE GIVEN IT WOULD DEPEND UPON
THE COMMISSION'S ESTIMATE OF THE REASONABLENESS OF THEIR CONCLUSIONS
AND THE FORCE OF THEIR REASONING.  THERE IS NOTHING TO INDICATE THAT
ANY CONSIDERATION WHICH COULD BE ADVANCED BY AN EXPERT HAS NOT BEEN
ADVANCED BY THE COMPANY IN ARGUMENT AND FULLY WEIGHED. 

WE CANNOT SAY THAT IT IS A DENIAL OF DUE PROCESS FOR A COMMISSION SO
EXPERIENCED AS THE RECORD SHOWS THIS COMMISSION TO HAVE BEEN WITH THE
AFFAIRS OF THIS PARTICULAR APPELLANT TO DRAW INFERENCES AS TO THE
PROBABLE EFFECT ON TRAFFIC OF A GIVEN RATE DECREASE ON SUCH A RECORD AS
WE HAVE HERE.  PARTICULARLY WOULD A CONCLUSION OF DENIAL OF DUE PROCESS
BE UNWARRANTED WHERE, AS HERE, THE COMMISSION RECOGNIZED THE INFIRMITY
OF ANY PREDICTIONS, REGARDED ITS RATE ORDER AS A TEMPORARY EXPERIMENT
FOR WHICH NO FIXED PERIOD WAS SET, AND HELD OPEN THE PROCEEDING TO
RECEIVE WHATEVER LESSONS EXPERIENCE MIGHT TEACH.  ITS STEP HERE IS
AFTER ALL ONLY RECEDING, ON EXPERIENCE, FROM STEPS IT EARLIER HAD TAKEN
TO ADVANCE THE RATE, WHICH ALSO HAD BEEN REGARDED AS EXPERIMENTAL AND
AS TO WHICH EXPERIENCE HAD DISAPPOINTED EXPECTATIONS.  WE FIND NO
DENIAL OF DUE PROCESS IN THESE CIRCUMSTANCES FROM THE FACT THAT THE
COMMISSION EVALUATED THE COMPANY'S EXPERIENCE FOR ITSELF WITHOUT THE
AID OF EXPERT TESTIMONY. 

3.  IT ALSO IS URGED THAT THE ORDER IS INVALID UNDER THE DUE PROCESS
CLAUSE BECAUSE IT IS BASED ON MATTERS OUTSIDE THE RECORD.  THE DECISION
OF THE COMMISSION STATED THAT "IN THE EIGHT MONTHS' PERIOD, JANUARY TO
AUGUST, INCLUSIVE, OF 1943 THE OPERATING REVENUES OF THE COMPANY
AMOUNTED TO $5,689,775," AND COMPARED THIS WITH THE OPERATING REVENUES
FOR THE SAME PERIOD OF 1942 AND FOUND AN INCREASE OF 20 PER CENT.  ON
THIS BASIS IT ESTIMATED THE TOTAL FOR THE FULL YEAR OF 1943 UNDER THE
PREVAILING SEVEN-CENT FARE.  CHALLENGED UPON THE GROUND THAT THE
OPERATING REVENUES FROM JANUARY TO AUGUST OF 1943 WERE NOT IN THE
RECORD, THE COMMISSION ADMITTED THAT THESE FIGURES WERE TAKEN FROM THE
APPELLANT'S MONTHLY REPORTS FILED WITH THE COMMISSION.  IT CONTENDED
THAT EVEN IF IT WAS IN ERROR TO REFER TO SUCH REPORTS, THE ERROR WAS
HARMLESS, SINCE THE RECORD WITHOUT THE FIGURES SUPPORTED THE
REASONABLENESS OF THE SIX-CENT FARE AND IT WAS THEREFORE IMMATERIAL
THAT THE COMMISSION USED SOME ADDITIONAL FIGURES.  NO CONTENTION IS
MADE HERE THAT THE INFORMATION WAS ERRONEOUS OR WAS MISUNDERSTOOD BY
THE COMMISSION, AND NO CONTENTION IS MADE THAT THE COMPANY COULD HAVE
DISPROVED IT OR EXPLAINED AWAY ITS EFFECT FOR THE PURPOSE FOR WHICH THE
COMMISSION USED IT. THE MOST THAT CAN BE SAID IS THAT THE COMMISSION IN
MAKING ITS PREDICTIVE FINDINGS WENT OUTSIDE OF THE RECORD TO VERIFY ITS
JUDGMENT BY REFERENCE TO ACTUAL TRAFFIC FIGURES THAT BECAME AVAILABLE
ONLY AFTER THE HEARINGS CLOSED.  IT DOES NOT APPEAR THAT THE COMPANY
WAS IN ANY WAY PREJUDICED THEREBY, AND IT MAKES NO SHOWING THAT, IF A
REHEARING WERE HELD TO INTRODUCE ITS OWN REPORTS, IT WOULD GAIN MUCH BY
CROSS-EXAMINATION, REBUTTAL, OR IMPEACHMENT OF ITS OWN AUDITORS OR THE
REPORTS THEY HAD FILED.  DUE PROCESS, OF COURSE, REQUIRES THAT
COMMISSIONS PROCEED UPON MATTERS IN EVIDENCE AND THAT PARTIES HAVE
OPPORTUNITY TO SUBJECT EVIDENCE TO THE TEST OF CROSS-EXAMINATION AND
REBUTTAL.  BUT DUE PROCESS DEALS WITH MATTERS OF SUBSTANCE AND IS NOT
TO BE TRIVIALIZED BY FORMAL OBJECTIONS THAT HAVE NO SUBSTANTIAL BEARING
ON THE ULTIMATE RIGHTS OF PARTIES.  THE PROCESS OF KEEPING INFORMED AS
TO REGULATED UTILITIES IS A CONTINUOUS MATTER WITH COMMISSIONS.  WE ARE
UNWILLING TO SAY THAT SUCH AN INCIDENTAL REFERENCE AS WE HAVE HERE TO A
PARTY'S OWN REPORTS, ALTHOUGH NOT FORMALLY MARKED IN EVIDENCE IN THE
PROCEEDING, IN THE ABSENCE OF ANY SHOWING OF ERROR OR PREJUDICE
CONSTITUTES A WANT OF DUE PROCESS. 

4.  THE ORDER IS SAID TO BE INVALID UNDER THE DUE PROCESS CLAUSE
BECAUSE IT IS BASED IN PART ON THE SO-CALLED "VALUE OF SERVICE"
THEORY.  IT IS URGED THAT "A CONFISCATORY RATE CANNOT BE SUSTAINED ON
THE THEORY THAT IT IS AN ADEQUATE PRICE FOR THE SERVICE INDEPENDENTLY
VALUED" AND THERE IS NO EVIDENCE JUSTIFYING A RATE REDUCTION ON THE
THEORY OF THE VALUE OF THE SERVICE. 

THE QUESTION WHETHER A CONFISCATORY RATE CAN BE JUSTIFIED BECAUSE
SERVICE IS BAD CAN ONLY BE REACHED WHEN WE FIND A PRESCRIBED RATE TO BE
CONFISCATORY.  AS WE DO NOT FIND THIS RATE TO BE SUCH, WE DO NOT NEED
TO PRONOUNCE UPON THE ABSTRACT DOCTRINE AS TO THE VALIDITY OF THE
"VALUE OF SERVICE" THEORY AS JUSTIFYING RATES THAT DO NOT YIELD A FAIR
RETURN.  THE COMMISSION IN THIS CASE DID NOT MAKE AN INDEPENDENT
VALUATION OF THE SERVICE TO PATRONS AND FIX RATES ACCORDINGLY. 

THE CONSIDERATION OF SERVICE AS A JUSTIFICATION FOR RATES ARISES IN
THIS CASE UPON A COMPARISON OF THE SERVICE OF THE COMPANY UNDER THE
FIVE-CENT RATE AND UNDER THE SEVEN-CENT RATE.  THE COMMISSION FOUND
THAT THE 40 PER CENT INCREASE OF RATE HAD BEEN ACCOMPANIED BY A
DETERIORATION OF SERVICE.  SOME FACTORS IN THE BAD SERVICE WERE BEYOND
THE COMPANY'S CONTROL; OTHERS WERE FOUND NOT TO BE WITHOUT REMEDY BY
GOOD MANAGEMENT.  CERTAINLY IF THE INCREASED FARE HAD BEEN ACCOMPANIED
BY AN IMPROVED SERVICE, IT WOULD BE USED AS AN ARGUMENT BY THE COMPANY,
AND A POWERFUL ONE IT WOULD BE, FOR THE CONTINUANCE OF THE HIGHER
RATE.  THAT HIGHER RATES FAILED TO IMPROVE, FAILED EVEN TO MAINTAIN,
SERVICE CERTAINLY REMOVED ONE OF THE JUSTIFICATIONS FOR THE INCREASE
WHICH THE COMPANY WAS ENJOYING.  IT MUST NOT BE FORGOTTEN THAT THE
INCREASES THAT THE COMMISSION HAD ALLOWED WERE ALSO EXPERIMENTAL.  SO
FAR AS THE PUBLIC WAS CONCERNED THE EXPERIMENT WITH THE SEVEN-CENT RATE
YIELDED THEM NO BETTER IMMEDIATE SERVICE AND, BECAUSE OF THE COMPANY'S
POLICIES, GAVE THEM NO PROSPECT OF MORE PERMANENT SERVICE.  IN FACT, BY
DISCOURAGEMENT OF PATRONAGE IT THREATENED THE CONTINUANCE OF THE
SERVICE. 

UNDER THESE CIRCUMSTANCES THE COMMISSION DID NOT PUT A MONETARY VALUE
ON A STREET CAR RIDE AS THE BASIS OF THE FARE.  USING THE COMPANY'S
SERVICE UNDER THE FIVE-CENT FARE AS A STANDARD, IT FOUND THAT THE
PUBLIC - ASIDE FROM THE SERVICE TO WAR PLANTS, WHICH WAS ADMITTEDLY
GOOD - WAS RECEIVING NO MORE TRANSPORTATION SERVICE FOR SEVEN CENTS
THAN IT HAD RECEIVED AT FIVE, AND AT THE SAME TIME THE COMPANY WAS NOT
RECEIVING INCREASED REVENUES BECAUSE THE PRICE OF THE SERVICE HAD
EXCEEDED THE VALUE THAT THE PUBLIC PUT UPON IT AND IT HAD THEREBY
WITHDRAWN ITS PATRONAGE. 

CERTAINLY THE DUE PROCESS CLAUSE OF THE CONSTITUTION IS NOT VIOLATED
WHEN A COMMISSION TAKES INTO CONSIDERATION PRACTICAL RESULTS TO THE
PUBLIC OF ADVANCES WHICH IT HAS ALLOWED IN RATES.  TO THE EXTENT THAT
THE COMMISSION WAS INFLUENCED BY CONSIDERATIONS OF THE VALUE OF THE
SERVICE IN THIS CASE, WE FIND NOTHING THAT DENIES THE COMPANY ANY
RIGHTS POSSESSED UNDER THE FEDERAL CONSTITUTION. 

5.  THE ORDER IS ASSERTED TO BE INVALID BECAUSE IT IS SAID TO BE
CONFISCATORY AND TO COMPEL APPELLANT TO OPERATE AT A LOSS.  THE
COMMISSION USED A RATE BASE OF $7,950,000, THE PRICE AT WHICH THE
PROPERTY HAD BEEN OFFERED TO THE CITY, AND THE SIX-CENT RATE IS NOT
CALCULATED TO PERMIT ANY RETURN ON A GREATER VALUATION.  BEFORE WE
CONSIDER THE VALIDITY OF THIS RATE BASE, WE MAY WELL CONSIDER WHAT
ALTERNATIVES THE CASE PRESENTS.  NO STUDY OF THE PRESENT COST OF
REPRODUCTION IS SHOWN, NO PRESENT FAIR VALUE IS SUGGESTED.  NOR DO WE
THINK IT IMPORTANT.  APART FROM FAMILIAR OBJECTIONS TO THE REPRODUCTION
COST METHOD, NO RESPONSIBLE PERSON WOULD THINK OF REPRODUCING THE
PRESENT PLANT, CONSISTING IN SUBSTANTIAL PART OF CABLE CARS AND
OBSOLETE EQUIPMENT.  THERE IS NO BASIS FOR ASSUMING THAT ANYONE, IN THE
LIGHT OF CONDITIONS WHICH PREVAIL IN THE STREET-SURFACE RAILROAD
INDUSTRY GENERALLY, WOULD CONSIDER REPRODUCING ANY STREET RAILWAY
SYSTEM.  IT WAS NO CONSTITUTIONAL ERROR TO PROCEED TO FIX A RATE IN
DISREGARD OF THEORETICAL REPRODUCTION COSTS.    THE COMMISSION IN 1920
MADE A VALUATION STUDY OF APPELLANT'S PROPERTIES AND FOUND AN
HISTORICAL REPRODUCTION COST OF ROAD AND EQUIPMENT TO BE $29,715,147. 
THIS VALUATION, BROUGHT FORWARD BY ADDING ADDITIONS AND BETTERMENTS AND
DEDUCTING RETIREMENTS, SHOWS A TOTAL AMOUNT FOR ROAD AND EQUIPMENT AS
OF DECEMBER 31, 1942 OF $25,343,543. 

ACTUAL INVESTMENT IS NOT DISCLOSED BY THE RECORD.  IT DOES DISCLOSE
THAT THE BOOK VALUE OF APPELLANT'S PROPERTIES AS OF DECEMBER 31, 1942
WAS $41,768,505.20. 

THE COMPANY'S OUTSTANDING SECURITIES AT THE END OF 1942, ISSUED WITH
THE APPROVAL OF THE COMMISSION, TOTALED $37,921,323.96 AT FACE VALUE. 
THEY CONSISTED OF COMMON STOCK OF OVER $10,000,000; 3 DIFFERENT CLASSES
OF PREFERRED STOCK OF $21,000,000; FIRST MORTGAGE BONDS OF $4,217,500;
EQUIPMENT NOTES OF $735,748.28; AND ADDITIONAL LONG-TERM DEBT OF
$1,041,625.68. 

NOT ONE OF THESE NOR ANY COMBINATION OF THEM AFFORDS A PRACTICAL OR
POSSIBLE RATE BASE, NOR DOES THE COMPANY SUGGEST THAT ALLOWANCE OF ANY
RATE WILL EARN IT A RETURN UPON ANY OF THESE.  IT HAS NOT ITSELF
VENTURED TO ASK A RATE HIGHER THAN SEVEN CENTS, ALTHOUGH THE INADEQUACY
OF ITS YIELD TO TAKE CARE OF THE FINANCIAL REQUIREMENTS OF THE COMPANY
HAS FOR SOME TIME BEEN APPARENT.  THIS COMPANY OBVIOUSLY IS UP AGAINST
A SORT OF LAW OF DIMINISHING RETURNS; THE GREATER AMOUNT IT COLLECTS
PER RIDE, THE LESS AMOUNT IT COLLECTS PER CAR MILE.  IT HAS LONG BEEN
RECOGNIZED THAT THIS FORM OF TRANSPORTATION COULD BE PRESERVED ONLY BY
THE MOST COMPLETE COOPERATION BETWEEN MANAGEMENT AND PUBLIC AND THE
MOST ENLIGHTENED EFFORTS TO MAKE THE SERVICE ATTRACTIVE TO PATRONS. 
FN8  IT IS OBVIOUS THAT, FOR WHATEVER CAUSE, THE APPELLANT HAS NOT
SUCCEEDED IN MAINTAINING ITS SERVICE ON A PAYING BASIS. 

IT IS IDLE TO DISCUSS HOLDINGS OF CASES OR TO DISTINGUISH QUOTATIONS
IN DECISIONS OF THIS OR OTHER COURTS WHICH HAVE DEALT WITH UTILITIES
WHOSE ECONOMIC SITUATION WOULD YIELD A PERMANENT PROFIT, DENIED OR
LIMITED ONLY BY PUBLIC REGULATION.  WHILE THE COMPANY DOES NOT ASSERT
THAT IT WOULD BE ECONOMICALLY PRACTICABLE TO OBTAIN A RETURN ON ITS
INVESTMENT, IT STRONGLY CONTENDS THAT THE ORDER IS CONFISCATORY BY THE
TESTS OF FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO., 320 U.S.
591, 603, 605, FROM WHICH IT CLAIMS TO BE ENTITLED TO A RETURN
"SUFFICIENT TO ASSURE CONFIDENCE IN THE FINANCIAL INTEGRITY OF THE
ENTERPRISE, SO AS TO MAINTAIN ITS CREDIT AND TO ATTRACT CAPITAL" AND TO
"ENABLE THE COMPANY TO OPERATE SUCCESSFULLY, TO MAINTAIN ITS FINANCIAL
INTEGRITY, TO ATTRACT CAPITAL, AND TO COMPENSATE ITS INVESTORS FOR THE
RISKS ASSUMED."  THOSE CONSIDERATIONS, ADVANCED IN THAT CASE (WHICH WAS
REVIEWED PURSUANT TO STATUTE RATHER THAN UNDER THE FOURTEENTH
AMENDMENT), CONCERNED A COMPANY WHICH HAD ADVANTAGE OF AN ECONOMIC
POSITION WHICH PROMISED TO YIELD WHAT WAS HELD TO BE AN EXCESSIVE
RETURN ON ITS INVESTMENT AND ON ITS SECURITIES.  THEY OBVIOUSLY ARE
INAPPLICABLE TO A COMPANY WHOSE FINANCIAL INTEGRITY ALREADY IS
HOPELESSLY UNDERMINED, WHICH COULD NOT ATTRACT CAPITAL ON ANY POSSIBLE
RATE, AND WHERE INVESTORS RECOGNIZE AS LOST A PART OF WHAT THEY HAVE
PUT IN.  IT WAS NOTED IN THE HOPE NATURAL GAS CASE THAT REGULATION DOES
NOT ASSURE THAT THE REGULATED BUSINESS MAKE A PROFIT.  320 U.S. AT 603;
SEE FEDERAL POWER COMMISSION V. NATURAL GAS PIPELINE CO., 315 U.S. 575,
590.  ALL THAT WAS HELD WAS THAT A COMPANY COULD NOT COMPLAIN IF THE
RETURN WHICH WAS ALLOWED MADE IT POSSIBLE FOR THE COMPANY TO OPERATE
SUCCESSFULLY.  THERE WAS NO SUGGESTION THAT LESS MIGHT NOT BE ALLOWED
WHEN THE AMOUNT ALLOWED WAS ALL THAT THE COMPANY COULD EARN.  WITHOUT
ANALYZING RATE CASES IN DETAIL, IT MAY BE SAFELY GENERALIZED THAT THE
DUE PROCESS CLAUSE NEVER HAS BEEN HELD BY THIS COURT TO REQUIRE A
COMMISSION TO FIX RATES ON THE PRESENT REPRODUCTION VALUE OF SOMETHING
NO ONE WOULD PRESENTLY WANT TO REPRODUCE, OR ON THE HISTORICAL
VALUATION OF A PROPERTY WHOSE HISTORY AND CURRENT FINANCIAL STATEMENTS
SHOWED THE VALUE NO LONGER TO EXIST, OR ON AN INVESTMENT AFTER IT HAS
VANISHED, EVEN IF ONCE PRUDENTLY MADE, OR TO MAINTAIN THE CREDIT OF A
CONCERN WHOSE SECURITIES ALREADY ARE IMPAIRED.  THE DUE PROCESS CLAUSE
HAS BEEN APPLIED TO PREVENT GOVERNMENTAL DESTRUCTION OF EXISTING
ECONOMIC VALUES.  IT HAS NOT AND CANNOT BE APPLIED TO INSURE VALUES OR
TO RESTORE VALUES THAT HAVE BEEN LOST BY THE OPERATION OF ECONOMIC
FORCES. 

THE OWNERS OF A PROPERTY DEDICATED TO THE PUBLIC SERVICE CANNOT BE
SAID TO SUFFER INJURY IF A RATE IS FIXED FOR AN EXPERIMENTAL PERIOD,
WHICH PROBABLY WILL PRODUCE A FAIR RETURN ON THE PRESENT FAIR VALUE OF
THEIR PROPERTY.  IF IT HAS LOST ALL VALUE EXCEPT SALVAGE, THEY SUFFER
NO LOSS IF THEY EARN A RETURN ON SALVAGE VALUE.  IF THE PROPERTY HAS NO
PROSPECT OF SALVAGE EXCEPT THROUGH DISMANTLING AND SALE FOR SCRAP, THE
SCRAP VALUE FOR SUCH OF IT AS IS TO BE SCRAPPED MAY REPRESENT ITS
PRESENT WORTH.  IN THIS CASE THE OWNERS WERE FORTUNATE IN HAVING A
POTENTIAL BUYER.  NEGOTIATIONS HAD LONG BEEN UNDER WAY.  THE OPERATIVE
PROPERTIES WERE TWICE OFFERED TO THE CITY OF SAN FRANCISCO FOR
$7,950,000 AND TWICE THE VOTERS REJECTED THE PROPOSITION.  ULTIMATELY
THE PROPERTIES WERE SOLD FOR $7,500,000.  THE EVIDENCE SHOWS THAT THE
PRESIDENT OF THE COMPANY REPORTED TO THE DIRECTORS "THAT THE PRICE
MENTIONED IS THE AMOUNT THAT HAS BEEN AGREED UPON FOR THE PURCHASE BY
THE CITY AND COUNTY OF SAN FRANCISCO OF THE OPERATIVE PROPERTIES OF THE
COMPANY AFTER NEGOTIATIONS IN RESPECT THERETO WHICH COVERED A
CONSIDERABLE PERIOD OF TIME AND, AS PREVIOUSLY MENTIONED, IS THE BEST
PRICE OBTAINABLE THEREFOR."  UPON THIS UNDERSTANDING THE BOARD OF
DIRECTORS RATIFIED THE OFFER AND DIRECTED THE OFFICERS TO CONSUMMATE
IT. 

IT IS NOW CONTENDED THAT THIS OFFER WAS CALCULATED BY A
CAPITALIZATION OF EARNING POWER AND THAT THIS COURT CONDEMNED SUCH A
BASIS OF VALUATION IN FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO.,
320 U.S. 591, 601, WHEN IT SAID, "THE HEART OF THE MATTER IS THAT RATES
CANNOT BE MADE TO DEPEND UPON 'FAIR VALUE' WHEN THE VALUE OF THE GOING
ENTERPRISE DEPENDS ON EARNINGS UNDER WHATEVER RATES MAY BE
ANTICIPATED."  THE PRONOUNCEMENT IN THE HOPE CASE WAS DIRECTED TO A
SITUATION WHERE THE DEMAND FOR THE SERVICE PERMITTED SUCH A RANGE OF
CHOICE IN RATES AS WOULD GREATLY AFFECT THE VALUE OF THE PROPERTY.  NO
SUCH CHOICE APPEARS OPEN TO THE APPELLANT.  APART FROM A LITTLE BRIEF
WAR-TIME PROSPERITY, IT SEEMS DOUBTFUL WHETHER ANY RATE WOULD YIELD
APPELLANT'S OPERATING EXPENSES. 

UNDER THESE CIRCUMSTANCES WE DO NOT FIND THAT ANYTHING HAS BEEN TAKEN
FROM THE APPELLANT BY THE IMPACT OF PUBLIC REGULATION.  IF THE
EXPECTATIONS OF THE COMMISSION AS TO TRAFFIC INCREASE WERE WELL
FOUNDED, IT WOULD EARN UNDER THIS RATE ON THE SALVAGE VALUE OF ITS
PROPERTY, WHICH IS THE ONLY VALUE IT IS SHOWN TO HAVE.  IF EXPECTATIONS
OF INCREASED TRAFFIC WERE UNFOUNDED, IT COULD PROBABLY NOT EARN A
RETURN FROM ANY RATE THAT COULD BE DEVISED.  WE ARE UNABLE TO FIND THAT
THE ORDER IN THIS CASE IS IN VIOLATION OF CONSTITUTIONAL PROHIBITIONS,
HOWEVER UNFORTUNATE THE PLIGHT OF THE APPELLANT. 

6.  THE COMPANY ALSO CONTENDS THAT IT IS ENTITLED TO REVERSAL BECAUSE
THE ORDER CONTEMPLATED A TEST OF EXPERIENCE, AND THE EXPERIMENT HAS NOT
TAKEN PLACE, AND THE COMMISSION'S PREDICTIONS CANNOT BE VERIFIED. 
HOWEVER, IT WAS THE COMPANY WHICH DEFEATED THE EXPERIMENT.  A VERY
SHORT TRIAL - A PERIOD MUCH SHORTER THAN IS REQUIRED TO CONDUCT A
LITIGATION - WOULD HAVE INDICATED THE EFFECT OF THE RATE REDUCTION IN
STIMULATING TRAFFIC.  BUT AT THE COMPANY'S REQUEST THE EXPERIMENT WAS
STAYED AND THEN TOTALLY FRUSTRATED BY THE SALE OF THE PROPERTY.  UNDER
THESE CIRCUMSTANCES THE UNAVAILABILITY OF EXPERIENCE TO TEST THE ORDER
CANNOT AFFECT ITS VALIDITY.  IT MIGHT BE GROUNDS FOR AN APPEAL TO THE
DISCRETION OF THE TRIBUNAL WHICH RENDERED THE ORDER.  IT CERTAINLY IS
NOT A CONSTITUTIONAL OBJECTION TO BE ENFORCED BY US. 

THE FIXING OF FUTURE RATES ALWAYS INVOLVES AN ELEMENT OF PREDICTION. 
EVEN MONOPOLIES MUST SELL THEIR SERVICES IN A MARKET WHERE THERE IS
COMPETITION FOR THE CONSUMER'S DOLLAR AND THE PRICE OF A COMMODITY
AFFECTS ITS DEMAND AND USE.  THIS EFFECT MAY BE PREDICTED OR PROJECTED,
BUT IT CAN BE KNOWN ONLY FROM EXPERIENCE.  THE MANY DETAILED OBJECTIONS
WHICH THE COMPANY MAKES TO THE COMMISSION'S COMPUTATIONS OF PROBABLE
YIELD WOULD BE ANSWERED BY EXPERIENCE.  THERE IS NOTHING IN THE ORDER
WHICH REQUIRES THAT THE TEST PERIOD SHOULD BE A YEAR OR ANY DEFINITE
TIME, AND THERE IS NO GROUND FOR ASSUMING THAT THE COMMISSION WOULD
HAVE REJECTED AN APPLICATION TO MAKE SUCH CHANGES IN THE SCHEDULE AS
EXPERIENCE MIGHT SHOW TO BE NECESSARY, IN ORDER TO PRODUCE, IF
POSSIBLE, THE REVENUE WHICH IT FOUND TO BE NEEDED.  THE COMMISSION HAD
NOT IN THE PAST BEEN INDIFFERENT TO APPELLANT'S FISCAL PROBLEMS.  UNDER
SUCH CIRCUMSTANCES WE THINK IT IS NOT FORBIDDEN BY THE CONSTITUTION
THAT THERE BE A PRAGMATIC TEST OF MATTERS WHICH EVEN THE MOST EXPERT
COULD NOT KNOW IN ADVANCE.  CF. CLARK'S FERRY BRIDGE CO. V. PUBLIC
SERVICE COMMISSION, 291 U.S. 227. 

WE HAVE CONSIDERED APPELLANT'S COMPLAINTS IN CONSIDERABLE DETAIL
BECAUSE THE CASE IN SO MANY WAYS DEPARTS FROM THE USUAL RATE CASE.  WE
FIND NO CONSTITUTIONAL INFIRMITY IN THE RESULT OR IN THE PROCEDURE BY
WHICH IT IS REACHED.  THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA
IS THEREFORE AFFIRMED. 

FN1  RULE 24(A) PROVIDES:  "(WHEN DECISIONS BECOME FINAL)  ALL
DECISIONS OF THE REVIEWING COURTS SHALL BE FILED WITH THE CLERK.  A
DECISION OF THE SUPREME COURT BECOMES FINAL 30 DAYS AFTER FILING UNLESS
OTHERWISE ORDERED PRIOR TO THE EXPIRATION OF SAID 30-DAY PERIOD. 
PURSUANT TO ARTICLE VI, SECTION 4C, OF THE CONSTITUTION, A DECISION OF
A DISTRICT COURT OF APPEAL BECOMES FINAL AS TO THAT COURT, 30 DAYS IN
CIVIL CASES AND 15 DAYS IN CRIMINAL CASES AFTER FILING, AND THEREAFTER
IS NOT SUBJECT TO MODIFICATION OR REHEARING BY SAID COURT.  WHERE AN
OPINION IS MODIFIED WITHOUT CHANGE IN THE JUDGMENT, DURING THE TIME
ALLOWED FOR REHEARING, SUCH MODIFICATION SHALL NOT POSTPONE THE TIME
THAT THE DECISION BECOMES FINAL AS ABOVE PROVIDED; BUT IF THE JUDGMENT
IS MODIFIED DURING THAT TIME, THE PERIOD SPECIFIED HEREIN BEGINS TO RUN
ANEW, AS OF THE DATE OF MODIFICATION."  RULES ON APPEAL FOR THE SUPREME
COURT AND DISTRICT COURTS OF APPEAL OF THE STATE OF CALIFORNIA,
EFFECTIVE JULY 1, 1943.  SEE 22 CAL.2D 1. 

FN2  RULE 25 SO PROVIDES.  "A REMITTITUR SHALL ISSUE AFTER THE FINAL
DETERMINATION OF ANY APPEAL, OR OF ANY ORIGINAL PROCEEDING IN REVIEW IN
WHICH AN ALTERNATIVE WRIT OR ORDER TO SHOW CAUSE HAS BEEN ISSUED. 
UNLESS OTHERWISE ORDERED, THE CLERK OF THE SUPREME COURT SHALL ISSUE
THE REMITTITUR WHEN A JUDGMENT OF THAT COURT BECOMES FINAL  ..."  RULE
25(A).  "FOR GOOD CAUSE SHOWN, OR ON STIPULATION OF THE PARTIES, THE
SUPREME COURT MAY DIRECT THE IMMEDIATE ISSUANCE OF A REMITTITUR."  RULE
25(B).  FOR DISCUSSION OF THIS RULE SEE WITKIN, NEW CALIFORNIA RULES ON
APPEAL (1944) 17 SO. CALIF. L. REV. 248 ET SEQ. 

FN3  "THE SUPREME COURT OR A DISTRICT COURT OF APPEAL MAY GRANT A
REHEARING IN ANY CAUSE AFTER ITS OWN DECISION; AND ANY CAUSE PENDING IN
A DEPARTMENT OF THE SUPREME COURT MAY BE ORDERED HEARD BY THE SUPREME
COURT IN BANK.  A REHEARING OR HEARING IN BANK MAY BE GRANTED ON
PETITION, AS PROVIDED IN SUBDIVISION (B) OF THIS RULE, OR ON THE
COURT'S OWN MOTION, PRIOR TO THE TIME THE DECISION BECOMES FINAL
THEREIN."  RULE 27(A). 

"AN ORDER OF THE SUPREME COURT GRANTING A REHEARING SHALL BE SIGNED
BY AT LEAST 4 JUSTICES ASSENTING THERETO, AND FILED WITH THE CLERK; AND
A HEARING IN BANK AFTER DECISION IN DEPARTMENT MAY BE ORDERED AS
PROVIDED IN ARTICLE VI, SECTION 2, OF THE CONSTITUTION.  IF NO ORDER IS
MADE BEFORE THE DECISION BECOMES FINAL, THE PETITION SHALL BE DEEMED
DENIED, AND THE CLERK SHALL ENTER A NOTATION IN THE REGISTER TO THAT
EFFECT."  RULE 27(E). 

FN4 NOVEMBER 13, 1944. 

FN5  THE OPINIONS ARE REPORTED IN 45 CAL. R.C. DEC. 53. 

FN6  THE OPINION ON REHEARING IS REPORTED IN 45 CAL. R.C. DEC. 162. 

FN7  THE COURT'S OPINION IS REPORTED IN 24 CAL.2D 378, 150 P.2D 196. 

FN8  IN MAY OF 1919 THE SECRETARY OF COMMERCE AND THE SECRETARY OF
LABOR JOINED IN A LETTER TO PRESIDENT WILSON, ADVISING HIM THAT 50 OR
MORE URBAN STREET RAILWAY SYSTEMS REPRESENTING A CONSIDERABLE
PERCENTAGE OF THE ELECTRIC RAILWAY MILEAGE WAS IN THE HANDS OF
RECEIVERS, AFFECTING SOME OF THE LARGEST CITIES OF THE COUNTRY, AND
THAT OTHER SYSTEMS WERE ON THE VERGE OF INSOLVENCY AND THE INDUSTRY AS
A WHOLE WAS VIRTUALLY BANKRUPT.  THEY URGED THE APPOINTMENT OF A
COMMISSION TO STUDY AND REPORT UPON THE PROBLEM.  PRESIDENT WILSON ON
JUNE 1, 1919 NAMED A COMMISSION WHICH HELD EXTENSIVE PUBLIC HEARINGS. 
THE FIRST WITNESS WAS EX-PRESIDENT WILLIAM HOWARD TAFT, SPEAKING FOR
THE NATIONAL WAR LABOR BOARD, AND OTHERS, INCLUDING LEADING MUNICIPAL
AND RAILWAY OFFICIALS AND SUCH EXPERIENCED PERSONS IN THE PROBLEM OF
REGULATION AS NEWTON D. BAKER, MILO R. MALTBIE, MORRIS L. COOK, JOSEPH
B. EASTMAN, AND MANY OTHERS.  PROCEEDINGS OF THE FEDERAL ELECTRIC
RAILWAYS COMMISSION, V. 1.  AN EXHAUSTIVE REPORT WITH MANY
RECOMMENDATIONS WAS MADE.  SEE ANALYSIS OF THE ELECTRIC RAILWAY PROBLEM
PREPARED FOR THE FEDERAL ELECTRIC RAILWAYS COMMISSION BY DE LOS F.
WILCOX, NEW YORK CITY, 1921.  ITS RECOMMENDATIONS WERE EXTENSIVE,
INCLUDING CERTAIN CHANGES BOTH BY THE MUNICIPALITIES AND BY THE
COMPANIES AFFECTED.  THE RECOMMENDATIONS WERE NOT GENERALLY HEEDED BY
EITHER. 
..END :















COMM'R V. COURT HOLDING CO., 324 U.S. 331 


NO. 581.  ARGUED FEBRUARY 26, 1945.  - DECIDED MARCH 12, 1945.  - 143
F.2D 823, REVERSED. 


1.  THERE WAS EVIDENCE TO SUPPORT THE FINDING OF THE TAX COURT THAT
THE TRANSACTION IN QUESTION - FORMALLY A SALE BY STOCKHOLDERS OF
PROPERTY CONVEYED TO THEM AS A "LIQUIDATING DIVIDEND" - WAS A SALE BY
THE CORPORATION RATHER THAN BY THE STOCKHOLDERS, WHICH FINDING MUST
THEREFORE BE ACCEPTED BY THE COURTS; AND THE TAX COURT'S CONCLUSION
THAT, UNDER SEC. 22 OF THE INTERNAL REVENUE CODE, THE CORPORATION WAS
TAXABLE ON THE GAIN FROM THE SALE IS SUSTAINED.  P. 333. 

2.  THAT THE CORPORATION NEVER EXECUTED A WRITTEN AGREEMENT, AND THAT
AN ORAL AGREEMENT FOR THE SALE OF REALTY WAS UNENFORCIBLE UNDER THE
STATE LAW, DOES NOT REQUIRE A DIFFERENT RESULT, IN VIEW OF THE TAX
COURT'S FINDING THAT THE EXECUTED SALE WAS IN SUBSTANCE A SALE BY THE
CORPORATION.  P. 334. 

COMMISSIONER OF INTERNAL REVENUE V. COURT HOLDING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 323 U.S. 702, TO REVIEW THE REVERSAL OF A DECISION OF THE
TAX COURT, 2 T.C. 531, SUSTAINING THE COMMISSIONER'S DETERMINATION OF A
DEFICIENCY IN INCOME TAX. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AN APARTMENT HOUSE, WHICH WAS THE SOLE ASSET OF THE RESPONDENT
CORPORATION, WAS TRANSFERRED IN THE FORM OF A LIQUIDATING DIVIDEND TO
THE CORPORATION'S TWO SHAREHOLDERS.  THEY IN TURN FORMALLY CONVEYED IT
TO A PURCHASER WHO HAD ORIGINALLY NEGOTIATED FOR THE PURCHASE FROM THE
CORPORATION.  THE QUESTION IS WHETHER THE CIRCUIT COURT OF APPEALS
PROPERLY REVERSED  FN1  THE TAX COURT'S CONCLUSION  FN2  THAT THE
CORPORATION WAS TAXABLE UNDER SEC. 22 OF THE INTERNAL REVENUE CODE  FN3
FOR THE GAIN WHICH ACCRUED FROM THE SALE.  THE ANSWER DEPENDS UPON
WHETHER THE FINDINGS OF THE TAX COURT THAT THE WHOLE TRANSACTION SHOWED
A SALE BY THE CORPORATION RATHER THAN BY THE STOCKHOLDERS WERE FINAL
AND BINDING UPON THE CIRCUIT COURT OF APPEALS. 

IT IS UNNECESSARY TO SET OUT IN DETAIL THE EVIDENCE INTRODUCED BEFORE
THE TAX COURT OR ITS FINDINGS.  DESPITE CONFLICTING EVIDENCE, THE
FOLLOWING FINDINGS OF THE TAX COURT ARE SUPPORTED BY THE RECORD: 

THE RESPONDENT CORPORATION WAS ORGANIZED IN 1934 SOLELY TO BUY AND
HOLD THE APARTMENT BUILDING WHICH WAS THE ONLY PROPERTY EVER OWNED BY
IT.  ALL OF ITS OUTSTANDING STOCK WAS OWNED BY MINNIE MILLER AND HER
HUSBAND.  BETWEEN OCTOBER 1, 1939 AND FEBRUARY, 1940, WHILE THE
CORPORATION STILL HAD LEGAL TITLE TO THE PROPERTY, NEGOTIATIONS FOR ITS
SALE TOOK PLACE.  THESE NEGOTIATIONS WERE BETWEEN THE CORPORATION AND
THE LESSEES OF THE PROPERTY, TOGETHER WITH A SISTER AND BROTHER-IN
LAW.  AN ORAL AGREEMENT WAS REACHED AS TO THE TERMS AND CONDITIONS OF
SALE, AND ON FEBRUARY 22, 1940, THE PARTIES MET TO REDUCE THE AGREEMENT
TO WRITING.  THE PURCHASER WAS THEN ADVISED BY THE CORPORATION'S
ATTORNEY THAT THE SALE COULD NOT BE CONSUMMATED BECAUSE IT WOULD RESULT
IN THE IMPOSITION OF A LARGE INCOME TAX ON THE CORPORATION.  THE NEXT
DAY, THE CORPORATION DECLARED A "LIQUIDATING DIVIDEND," WHICH INVOLVED
COMPLETE LIQUIDATION OF ITS ASSETS, AND SURRENDER OF ALL OUTSTANDING
STOCK.  MRS. MILLER AND HER HUSBAND SURRENDERED THEIR STOCK, AND THE
BUILDING WAS DEEDED TO THEM.  A SALE CONTRACT WAS THEN DRAWN, NAMING
THE MILLERS INDIVIDUALLY AS VENDORS, AND THE LESSEES' SISTER AS VENDEE,
WHICH EMBODIED SUBSTANTIALLY THE SAME TERMS AND CONDITIONS PREVIOUSLY
AGREED UPON.  ONE THOUSAND DOLLARS, WHICH A MONTH AND A HALF EARLIER
HAD BEEN PAID TO THE CORPORATION BY THE LESSEES, WAS APPLIED IN PART
PAYMENT OF THE PURCHASE PRICE.  THREE DAYS LATER, THE PROPERTY WAS
CONVEYED TO THE LESSEES' SISTER. 

THE TAX COURT CONCLUDED FROM THESE FACTS THAT, DESPITE THE
DECLARATION OF A "LIQUIDATING DIVIDEND" FOLLOWED BY THE TRANSFERS OF
LEGAL TITLE, THE CORPORATION HAD NOT ABANDONED THE SALES NEGOTIATIONS;
THAT THESE WERE MERE FORMALITIES DESIGNED "TO MAKE THE TRANSACTION
APPEAR TO BE OTHER THAN WHAT IT WAS" IN ORDER TO AVOID TAX LIABILITY. 
THE CIRCUIT COURT OF APPEALS DRAWING DIFFERENT INFERENCES FROM THE
RECORD, HELD THAT THE CORPORATION HAD "CALLED OFF" THE SALE, AND
TREATED THE STOCKHOLDERS' SALE AS UNRELATED TO THE PRIOR NEGOTIATIONS. 

THERE WAS EVIDENCE TO SUPPORT THE FINDINGS OF THE TAX COURT, AND ITS
FINDINGS MUST THEREFORE BE ACCEPTED BY THE COURTS.  DOBSON V.
COMMISSIONER, 320 U.S. 489; COMMISSIONER V. HEININGER, 320 U.S. 467;
COMMISSIONER V. SCOTTISH AMERICAN INVESTMENT CO., 323 U.S. 119.  ON THE
BASIS OF THESE FINDINGS, THE TAX COURT WAS JUSTIFIED IN ATTRIBUTING THE
GAIN FROM THE SALE TO RESPONDENT CORPORATION.  THE INCIDENCE OF
TAXATION DEPENDS UPON THE SUBSTANCE OF A TRANSACTION.  THE TAX
CONSEQUENCES WHICH ARISE FROM GAINS FROM A SALE OF PROPERTY ARE NOT
FINALLY TO BE DETERMINED SOLELY BY THE MEANS EMPLOYED TO TRANSFER LEGAL
TITLE.  RATHER, THE TRANSACTION MUST BE VIEWED AS A WHOLE, AND EACH
STEP, FROM THE COMMENCEMENT OF NEGOTIATIONS TO THE CONSUMMATION OF THE
SALE, IS RELEVANT.  A SALE BY ONE PERSON CANNOT BE TRANSFORMED FOR TAX
PURPOSES INTO A SALE BY ANOTHER BY USING THE LATTER AS A CONDUIT
THROUGH WHICH TO PASS TITLE.  FN4  TO PERMIT THE TRUE NATURE OF A
TRANSACTION TO BE DISGUISED BY MERE FORMALISMS, WHICH EXIST SOLELY TO
ALTER TAX LIABILITIES, WOULD SERIOUSLY IMPAIR THE EFFECTIVE
ADMINISTRATION OF THE TAX POLICIES OF CONGRESS. 

IT IS URGED THAT RESPONDENT CORPORATION NEVER EXECUTED A WRITTEN
AGREEMENT, AND THAT AN ORAL AGREEMENT TO SELL LAND CANNOT BE ENFORCED
IN FLORIDA BECAUSE OF THE STATUTE OF FRAUDS, COMP. GEN. LAWS OF
FLORIDA, 1927, VOL. 3, SEC. 5779.  BUT THE FACT THAT RESPONDENT
CORPORATION ITSELF NEVER EXECUTED A WRITTEN CONTRACT IS UNIMPORTANT,
SINCE THE TAX COURT FOUND FROM THE FACTS OF THE ENTIRE TRANSACTION THAT
THE EXECUTED SALE WAS IN SUBSTANCE THE SALE OF THE CORPORATION.  THE
DECISION OF THE CIRCUIT COURT OF APPEALS IS REVERSED, AND THAT OF THE
TAX COURT AFFIRMED.  IT IS SO ORDERED. 

FN1  143 F.2D 823. 

FN2  2 T.C. 531. 

FN3  PROFITS FROM THE SALE OF PROPERTY ARE TAXABLE AS INCOME UNDER
SEC. 22(A) OF THE INTERNAL REVENUE CODE, 26 U.S.C. 22.  THE TREASURY
REGULATIONS HAVE LONG PROVIDED THAT GAINS ACCURING FROM THE SALES OF A
CORPORATION'S ASSETS, IN WHOLE OR IN PART, CONSTITUTE INCOME TO IT, BUT
THAT A CORPORATION REALIZES NO TAXABLE GAIN BY A MERE DISTRIBUTION OF
ITS ASSETS IN KIND, IN PARTIAL OR IN COMPLETE LIQUIDATION, HOWEVER MUCH
THEY MAY HAVE APPRECIATED IN VALUE SINCE ACQUISITION.  SECS. 19.22(A)
19, 19.22(A)-21, TREASURY REGULATIONS 103. 

FN4  GREGORY V. HELVERING, 293 U.S. 465; MINNESOTA TEA CO. V.
HELVERING, 302 U.S. 609; GRIFFITHS V. COMMISSIONER, 308 U.S. 355;
HIGGINS V. SMITH, 308 U.S. 473. 
..END :


















SHOSHONE INDIANS V. U.S., 324 U.S. 335 


NO. 63.  ARGUED NOVEMBER 10, 13, 1944.  - DECIDED MARCH 12, 1945.  - 100
CT. CLS. 455, AFFIRMED. 


1.  THE TREATY OF JULY 30, 1863 WITH THE NORTHWESTERN BANDS OF THE
SHOSHONE INDIANS WAS NOT A RECOGNITION OR ACKNOWLEDGMENT BY THE UNITED
STATES OF THE INDIAN TITLE TO THE LANDS THEREIN MENTIONED; THEREFORE A
CLAIM TO COMPENSATION FOR THE TAKING OF THE LANDS IS NOT ONE "ARISING
UNDER OR GROWING OUT OF" THE TREATY, WITHIN THE MEANING OF THE SPECIAL
JURISDICTIONAL ACT OF FEBRUARY 28, 1929, AND NO RECOVERY UPON SUCH
CLAIM CAN BE HAD UNDER THAT ACT.  PP. 340, 354. 

(A)  THE FINDING OF THE COURT OF CLAIMS THAT THE UNITED STATES DID
NOT BY THE TREATY INTEND TO RECOGNIZE OR ACKNOWLEDGE INDIAN TITLE TO
THE LANDS, WHICH FINDING WAS THE BASIS OF THAT COURT'S DECISION, PLACES
THE BURDEN ON PETITIONERS TO OVERTHROW THE JUDGMENT OF THE COURT OF
CLAIMS.  P. 346. 

(B)  RECOGNITION OF THE INDIAN TITLE IS NOT TO BE IMPLIED FROM THE
GRANT BY THE INDIANS OF PERMISSION FOR TRAVEL OR MINING AND FOR THE
MAINTENANCE OF COMMUNICATION AND TRANSPORTATION FACILITIES.  P. 348. 

(C)  THAT INDIAN TITLE WAS RECOGNIZED BY THE FORT LARAMIE TREATY DOES
NOT REQUIRE THE CONCLUSION THAT INDIAN TITLE WAS RECOGNIZED BY THE
TREATY OF JULY 30, 1863.  P. 349. 

(D)  USE IN THE TREATY OF THE WORD "CLAIM" OR THE PHRASE "COUNTRY
CLAIMED," THOUGH DESIGNATING THE AREA OVER WHICH THE INDIANS ASSERTED
INDIAN TITLE, DID NOT CONSTITUTE ACKNOWLEDGMENT BY THE UNITED STATES OF
SUCH TITLE.  P. 350. 

(E)  THE SENATE AMENDMENT TO THE TREATY - "NOTHING HEREIN CONTAINED
SHALL BE CONSTRUED OR TAKEN TO ADMIT ANY OTHER OR GREATER TITLE OR
INTEREST IN THE LANDS EMBRACED WITHIN THE TERRITORIES DESCRIBED IN SAID
TREATY IN SAID TRIBES OR BANDS OF INDIANS THAN EXISTED IN THEM UPON THE
ACQUISITION OF SAID TERRITORIES FROM MEXICO BY THE LAWS THEREOF" - WAS
NOT INTENDED TO GIVE RECOGNITION TO INDIAN TITLES BUT ONLY TO AVOID
FURTHER COMPLICATIONS IN THE MEXICAN CESSION TITLE SITUATION.  P. 351. 

2.  INDIAN TREATIES ARE TO BE CONSTRUED ACCORDING TO THEIR TENOR; AND
THEIR TERMS ARE NOT TO BE VARIED BY CONSTRUCTION IN ORDER TO AVOID
ALLEGED INJUSTICES.  P. 353. 

NORTHWESTERN BANDS OF SHOSHONE INDIANS V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 322 U.S. 721, TO REVIEW THE DISMISSAL OF A PROCEEDING
BROUGHT IN THE COURT OF CLAIMS PURSUANT TO A SPECIAL JURISDICTIONAL
ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE NORTHWESTERN BANDS OF SHOSHONE INDIANS, PETITIONERS HERE, SEEK TO
RECOVER FROM THE UNITED STATES DAMAGES ESTIMATED AT FIFTEEN MILLION
DOLLARS FOR THE TAKING OF SOME FIFTEEN MILLION ACRES OF THE LANDS HELD
BY THESE INDIANS BY ABORIGINAL OR IMMEMORIAL TITLE.  THIS TITLE WAS
ALLEGED BY THE INDIANS TO HAVE BEEN RECOGNIZED BY THE UNITED STATES BY
THE TREATY BETWEEN THE PETITIONERS AND THE UNITED STATES AT BOX ELDER,
UTAH TERRITORY, JULY 30, 1863. 

THE SUIT WAS BEGUN IN THE COURT OF CLAIMS AGAINST THE UNITED STATES BY
THE BANDS PURSUANT TO A SPECIAL JURISDICTIONAL ACT OF CONGRESS OF
FEBRUARY 28, 1929, 45 STAT. 1407.  THE ACT CONSENTED TO SUIT AND
RECOVERY AGAINST THE UNITED STATES UPON THE FOLLOWING CONDITIONS:
"THAT JURISDICTION BE, AND HEREBY IS, CONFERRED UPON THE COURT OF
CLAIMS, NOTWITHSTANDING LAPSE OF TIME OR STATUTES OF LIMITATIONS, TO
HEAR, ADJUDICATE, AND RENDER JUDGMENT IN ANY AND ALL CLAIMS WHICH THE
NORTHWESTERN BANDS OF SHOSHONE INDIANS MAY HAVE AGAINST THE UNITED
STATES ARISING UNDER OR GROWING OUT OF THE TREATY OF JULY 2,
1863(EIGHTEENTH STATUTES, PAGE 685 - 2 KAPPLER, 848); TREATY OF JULY
30, 1863(THIRTEENTH STATUTES, PAGE 863(663) - 2 KAPPLER, 850); ACT OF
CONGRESS APPROVED DECEMBER 15, 1874(EIGHTEENTH STATUTES, PAGE 291), AND
ANY SUBSEQUENT TREATY ACT OF CONGRESS, OR EXECUTIVE ORDER, WHICH CLAIMS
HAVE NOT HERETOFORE BEEN DETERMINED AND ADJUDICATED ON THEIR MERITS BY
THE COURT OF CLAIMS OR THE SUPREME COURT OF THE UNITED STATES."  FN1 

THIS COURT HAS JURISDICTION TO GRANT CERTIORARI UNDER THE
JURISDICTIONAL ACT AND SEC. 3(B), ACT OF FEBRUARY 13, 1925, 43 STAT.
939, AS AMENDED BY ACT OF MAY 22, 1939, 53 STAT. 752; SEE COLGATE V.
UNITED STATES, 280 U.S. 43.  CERTIORARI WAS GRANTED IN VIEW OF THE
IMPORTANCE OF THE QUESTION IN INDIAN AFFAIRS. 

THE SUIT IS BASED UPON THE UNLAWFUL TAKING AFTER THE ALLEGED
RECOGNITION OF THE INDIAN TITLE BY THE BOX ELDER TREATY.  WE DO NOT
READ THE PETITION AS CLAIMING ANY RIGHT TO COMPENSATION FOR THE
EXTINGUISHMENT OF AN INDIAN ABORIGINAL TITLE, WHICH WAS UNRECOGNIZED OR
UNACKNOWLEDGED BY THE BOX ELDER TREATY.  UNDER THE WORDS OF THE
JURISDICTIONAL ACT, "ARISING UNDER OR GROWING OUT OF THE TREATY," SUIT
IS AUTHORIZED ONLY FOR RIGHTS ACKNOWLEDGED BY THE TREATY.  THE ACT DOES
NOT AUTHORIZE A SUIT FOR LOSS OF INDIAN TRIBAL RIGHTS ARISING FROM ANY
OTHER ACTS OF THE UNITED STATES.  IF THE TREATY RECOGNIZED THE
ABORIGINAL OR INDIAN TITLE, THE AUTHORITY TO SUE FOR THE TAKING UNDER
THE JURISDICTIONAL ACT IS NOT QUESTIONED.  FN2  NO CLAIM IS BROUGHT
FORWARD BY PETITIONERS ARISING UNDER OR GROWING OUT OF THE OTHER
TREATIES, ACTS OR ORDERS WHICH ARE REFERRED TO IN THE JURISDICTIONAL
ACT.  SEE NORTHWESTERN BANDS OF SHOSHONE INDIANS V. UNITED STATES, 95
CT. CLS. 642, 680.  FN3 

THE COURT OF CLAIMS DETERMINED THAT THE CLAIM FOR THE TAKING OF LAND
SUED UPON BY PETITIONERS DID NOT GROW OUT OF THE BOX ELDER TREATY. 
CERTIORARI WAS SOUGHT AND GRANTED TO DETERMINE WHETHER THERE WAS
"RECOGNITION" OR "ACKNOWLEDGMENT" OF THE INDIAN TITLE BY THIS TREATY
THROUGH THE LANGUAGE EMPLOYED OR BY THE ACT OF ENTERING INTO A TREATY
WITH THE INDIANS AS TO THE USE BY THE UNITED STATES OF LANDS WHICH WERE
CLAIMED BY THE PETITIONERS. 

EVEN WHERE A RESERVATION IS CREATED FOR THE MAINTENANCE OF INDIANS,
THEIR RIGHT AMOUNTS TO NOTHING MORE THAN A TREATY RIGHT OF OCCUPANCY. 
SHOSHONE TRIBE V. UNITED STATES, 299 U.S. 476, 496.  PRIOR TO THE
CREATION OF ANY SUCH AREA, FORMALLY ACKNOWLEDGED BY THE UNITED STATES
AS SUBJECT TO SUCH RIGHT OF INDIAN OCCUPANCY, A CERTAIN NATION, TRIBE
OR BAND OF INDIANS MAY HAVE CLAIMED THE RIGHT BECAUSE OF IMMEMORIAL
OCCUPANCY TO ROAM CERTAIN TERRITORY TO THE EXCLUSION OF ANY OTHER
INDIANS AND IN CONTRADISTINCTION TO THE CUSTOM OF THE EARLY NOMADS TO
WANDER AT WILL IN THE SEARCH FOR FOOD.  UNITED STATES V. SANTA FE
PACIFIC R. CO., 314 U.S. 339, 345.  THIS CLAIM HAS COME TO BE KNOWN AS
INDIAN TITLE AND IS LIKEWISE OFTEN SPOKEN OF AS THE RIGHT OF
OCCUPANCY.  TO DISTINGUISH FROM A RECOGNIZED RIGHT OF OCCUPANCY, WE
SHALL REFER TO THE ABORIGINAL USAGE WITHOUT DEFINITE RECOGNITION OF THE
RIGHT BY THE UNITED STATES AS INDIAN TITLE. 

SINCE JOHNSON V. M'INTOSH, 8 WHEAT.  543, DECIDED IN 1823, GAVE
RATIONALIZATION TO THE APPROPRIATION OF INDIAN LANDS BY THE WHITE MAN'S
GOVERNMENT, THE EXTINGUISHMENT OF INDIAN TITLE BY THAT SOVEREIGNTY HAS
PROCEEDED, AS A POLITICAL MATTER, WITHOUT ANY ADMITTED LEGAL
RESPONSIBILITY IN THE SOVEREIGN TO COMPENSATE THE INDIAN FOR HIS LOSS. 
EXCLUSIVE TITLE TO THE LANDS PASSED TO THE WHITE DISCOVERERS, SUBJECT
TO THE INDIAN TITLE WITH POWER IN THE WHITE SOVEREIGN ALONE TO
EXTINGUISH THAT RIGHT BY "PURCHASE OR CONQUEST."  8 WHEAT.  AT 574, 585
88.  THE WHITES ENFORCED THEIR CLAIMS BY THE SWORD AND OCCUPIED THE
LANDS AS THE INDIANS ABANDONED THEM.  FN4  CONGRESS HAS AUTHORIZED
SUITS ON THE ORIGINAL INDIAN TITLE BUT NO RECOVERY HAS AS YET BEEN
OBTAINED ON THAT GROUND.  SEE COOS BAY INDIAN TRIBE V. UNITED STATES,
87 CT. CLS. 143; CF. WICHITA INDIANS V. UNITED STATES, 89 CT. CLS. 378,
413, 414.  IN THIS CASE, HOWEVER, THE SUCCESS OF THE CLAIM DEPENDS NOT
UPON PROOF OF THE INDIAN TITLE, WHICH MAY BE ADMITTED, 95 CT. CLS. AT
690, BUT UPON RECOGNITION OF THAT TITLE BY THE BOX ELDER TREATY.  IT IS
QUITE UNDERSTANDABLE FROM THE POINT OF VIEW OF BOTH PETITIONERS AND
CONGRESS THAT THE GOVERNMENT SHOULD LIMIT ITS SUBMISSION TO SUITS TO
CLAIMS UNDER THE BOUNDARIES IF ACKNOWLEDGED BY THE TREATY RATHER THAN
TO CONSENT TO JUDICIAL EXAMINATION OF CLAIMS FOR TAKING THE UNKNOWN
AREA OF THEIR POSSIBLE INDIAN TITLE.  FN5  THE SHOSHONE INDIAN TITLE
WAS IN INDIAN COUNTRY (ACT TO REGULATE TRADE AND INTERCOURSE WITH THE
INDIAN TRIBES, 4 STAT. 729; BATES V. CLARK, 95 U.S. 204, 206-208) AND
AS A CONSEQUENCE SUBJECT TO ALL THE UNCERTAINTIES OF DEFINITION OF
BOUNDARIES AND DIFFICULTIES OF PROOF TO ESTABLISH ABORIGINAL TITLE FOR
TRIBES WITH A SHIFTING HABITAT. 

THE DECISIVE QUESTION IN THIS CASE IS WHETHER IT WAS INTENDED BY THE
NORTHWESTERN SHOSHONE OR BOX ELDER TREATY OF JULY 30, 1863, TO
RECOGNIZE OR ACKNOWLEDGE BY IMPLICATION THE INDIAN TITLE TO THE LANDS
MENTIONED IN THAT TREATY.  UNITED STATES V. SANTA FE PACIFIC R. CO.,
314 U.S. 339, 347.  FROM SUCH RECOGNITION OR ACKNOWLEDGMENT BY THIS
TREATY WOULD FLOW A RIGHT OF OCCUPANCY WHICH WOULD BE COMPENSABLE UNDER
THE JURISDICTIONAL ACT. 

FULL FINDINGS OF FACT APPEAR WITH THE OPINION BELOW IN NORTHWESTERN
BANDS OF SHOSHONE INDIANS V. UNITED STATES, 95 CT. CLS. 642.  THESE
FINDINGS SHOW THAT PETITIONERS HERE, THE NORTHWESTERN BANDS, WERE AT
THE TIME OF THE TREATY A PART OF THE SHOSHONE TRIBE, A NOMADIC INDIAN
NATION OF LESS THAN TEN THOUSAND PEOPLE WHICH ROAMED OVER EIGHTY
MILLION ACRES OF PRAIRIE, FOREST AND MOUNTAIN IN THE PRESENT STATES OF
WYOMING, COLORADO, UTAH, IDAHO AND NEVADA.  THE GROUP WITH WHICH WE ARE
CONCERNED WAS COMPRISED OF SOME FIFTEEN OR EIGHTEEN HUNDRED PERSONS AND
CLAIMED, BY THE TREATY, INDIAN TITLE TO SOME TEN MILLION ACRES AND NOW
CLAIM COMPENSATION FOR OVER SIX MILLION ADDITIONAL ACRES. 

AFTER THE DISCOVERY OF GOLD IN CALIFORNIA, WHITE TRAVELERS AND
SETTLERS BEGAN TO TRAVERSE AND PEOPLE THE SHOSHONE DOMAIN WITH THE
RESULT THAT THE INDIANS' GAME DISAPPEARED FROM THEIR HUNTING GROUNDS. 
RACIAL RELATIONS DEGENERATED TO THE POINT THAT INDIAN DEPREDATIONS
INTERFERED WITH TRAVEL AND SETTLEMENT, THE OVERLAND MAILS AND THE NEW
TELEGRAPH LINES.  BY THE TIME OF THE OUTBREAK OF THE CIVIL WAR THE
COMMISSIONER OF INDIAN AFFAIRS, THE AGENTS AND SUPERINTENDENTS OF THE
SHOSHONE TERRITORY WERE AWARE OF THE MISERY OF THE SHOSHONES, THE
DANGERS TO THE EMIGRANT TRAINS AND NEED FOR PEACE TO ENABLE TRAVEL AND
SETTLEMENT IN THE AREA.  WORD HAD REACHED THE COMMISSIONER FROM HIS
SUPERINTENDENT IN UTAH THAT THE SHOSHONE WERE INCLINED TOWARD ACCEPTING
SUPPORT ON LIMITED RESERVATIONS AND WERE WILLING IN RETURN TO CEDE
THEIR OTHER LANDS TO THE UNITED STATES. 

ON JULY 5, 1862, 12 STAT. 512, 529, CONGRESS APPROPRIATED $20,000 FOR
DEFRAYING THE EXPENSES OF NEGOTIATING A TREATY WITH THE SHOSHONES.  THE
APPROPRIATION FOLLOWED A LETTER FROM THE SECRETARY OF THE INTERIOR TO
THE CHAIRMAN OF THE HOUSE COMMITTEE ON INDIAN AFFAIRS EXPRESSING THE
VIEW THAT THE LANDS OWNED BY THE INDIANS OF UTAH WERE LARGELY UNFIT FOR
CULTIVATION AND THAT IT WAS "NOT PROBABLE THAT ANY CONSIDERABLE PORTION
OF THEM WILL BE REQUIRED FOR SETTLEMENT FOR MANY YEARS."  A SPECIAL
COMMISSION WAS PROMPTLY APPOINTED AND INSTRUCTED THAT IT WAS NOT
EXPECTED THAT THE PROPOSED TREATY WOULD EXTINGUISH INDIAN TITLE TO THE
LANDS BUT ONLY SECURE FREEDOM FROM MOLESTATION FOR THE ROUTES OF TRAVEL
AND "ALSO A DEFINITE ACKNOWLEDGMENT AS WELL OF THE BOUNDARIES OF THE
ENTIRE COUNTRY THEY CLAIM AS OF THE LIMITS WITHIN WHICH THEY WILL
CONFINE THEMSELVES, WHICH LIMITS IT IS HARDLY NECESSARY TO STATE SHOULD
BE AS REMOTE FROM SAID ROUTES AS PRACTICABLE." 

AS THE DISTANCES MADE IT IMPRACTICABLE TO GATHER THE SHOSHONE NATION
INTO ONE COUNCIL FOR TREATY PURPOSES, THE COMMISSIONERS MADE FIVE
TREATIES IN AN ENDEAVOR TO CLEAR UP THE DIFFICULTIES IN THE SHOSHONE
COUNTRY.  THESE ARE SET OUT IN FULL IN THE REPORT BELOW.  95 CT. CLS.
642.  FOUR WILL BE FOUND ALSO IN 13 STAT. 663, 681, AND 18 STAT. 685,
689.  THE FIFTH OR MIXED BAND TREATY WAS NOT PROCLAIMED.  IT IS AT 5
KAPPLER 693.  IT IS SUFFICIENT HERE TO SAY THAT BY THE TREATIES THE
INDIANS AGREED NOT TO MOLEST TRAVELERS, STAGE COACHES, TELEGRAPH LINES
OR PROJECTED RAILROADS.  FN6  ALL THE SHOSHONE TREATIES WERE SIMILAR IN
FORM.  THEY SHOW THAT THE BOUNDARIES CLAIMED, AS PETITIONER POINTS OUT,
COVERED THE ENTIRE SHOSHONE COUNTRY.  AFTER ALL FIVE WERE NEGOTIATED
COMMISSIONER DOTY WAS ABLE TO TRACE A ROUGH MAP OF THE SHOSHONE COUNTRY
TO SHOW THE COMMISSIONER OF INDIAN AFFAIRS "THE EXTERIOR BOUNDARIES OF
THE TERRITORIES CLAIMED BY THE SHOSHONEES IN THEIR RECENT TREATIES, AS
ALSO THE LINES OF THE COUNTRY OCCUPIED BY DIFFERENT PORTIONS OF THE
TRIBE INDICATED UPON IT AS CORRECTLY AS THE MAP WILL ALLOW."  HE HAD
ASKED INDIAN AFFAIRS FOR THE MAP UPON WHICH THIS INFORMATION WAS TRACED
"TO SHOW THE BOUNDARIES OF THE COUNTRY CEDED BY THE SHOSHONES." 

PETITIONERS' TREATY, THE NORTHWESTERN SHOSHONE TREATY, NEEDS TO BE
SET OUT IN FULL FOR READY EXAMINATION.  IT READS AS FOLLOWS: 

"ARTICLES OF AGREEMENT MADE AT BOX ELDER, IN UTAH TERRITORY, THIS
30TH DAY OF JULY, A.D., 1863, BY AND BETWEEN THE UNITED STATES OF
AMERICA, REPRESENTED BY BRIGADIER-GENERAL P. EDWARD CONNOR, COMMANDING
THE MILITARY DISTRICT OF UTAH, AND JAMES DUANE DOTY, COMMISSIONER, AND
THE NORTHWESTERN BANDS OF THE SHOSHONEE INDIANS, REPRESENTED BY THEIR
CHIEFS AND WARRIORS: 

ARTICLE I. IT IS AGREED THAT FRIENDLY AND AMICABLE RELATIONS SHALL BE
REESTABLISHED BETWEEN THE BANDS OF THE SHOSHONEE NATION, PARTIES
HERETO, AND THE UNITED STATES; AND IT IS DECLARED THAT A FIRM AND
PERPETUAL PEACE SHALL BE HENCEFORTH MAINTAINED BETWEEN THE SAID BANDS
AND THE UNITED STATES. 

ARTICLE II.  THE TREATY CONCLUDED AT FORT BRIDGER ON THE 2ND DAY OF
JULY, 1863, BETWEEN THE UNITED STATES AND THE SHOSHONEE NATION, BEING
READ AND FULLY INTERPRETED AND EXPLAINED TO THE SAID CHIEFS AND
WARRIORS, THEY DO HEREBY GIVE THEIR FULL AND FREE ASSENT TO ALL OF THE
PROVISIONS OF SAID TREATY, AND THE SAME ARE HEREBY ADOPTED AS A PART OF
THIS AGREEMENT, AND THE SAME SHALL BE BINDING UPON THE PARTIES HERETO. 

ARTICLE III.  IN CONSIDERATION OF THE STIPULATIONS IN THE PRECEDING
ARTICLES, THE UNITED STATES AGREE TO INCREASE THE ANNUITY TO THE
SHOSHONEE NATION FIVE THOUSAND DOLLARS, TO BE PAID IN THE MANNER
PROVIDED IN SAID TREATY.  AND THE SAID NORTHWESTERN BANDS HEREBY
ACKNOWLEDGE TO HAVE RECEIVED OF THE UNITED STATES, AT THE SIGNING OF
THESE ARTICLES, PROVISIONS AND GOODS TO THE AMOUNT OF TWO THOUSAND
DOLLARS, TO RELIEVE THEIR IMMEDIATE NECESSITIES, THE SAID BANDS HAVING
BEEN REDUCED BY THE WAR TO A STATE OF UTTER DESTITUTION. 

ARTICLE IV.  THE COUNTRY CLAIMED BY POKATELLO, FOR HIMSELF AND HIS
PEOPLE, IS BOUNDED ON THE WEST BY RAFT RIVER AND ON THE EAST BY THE
PORTENEUF MOUNTAINS."  13 STAT. 663.  BEFORE IT OR THE OTHER TREATIES
WERE RATIFIED BY THE SENATE AN ADDITIONAL ARTICLE WAS ADDED TO EACH
AND, EXCEPT FOR ONE TREATY NOT FURTHER INVOLVED HERE, ACCEPTED BY THE
INDIANS.  THE ADDITION READS AS FOLLOWS: 

"NOTHING HEREIN CONTAINED SHALL BE CONSTRUED OR TAKEN TO ADMIT ANY
OTHER OR GREATER TITLE OR INTEREST IN THE LANDS EMBRACED WITHIN THE
TERRITORIES DESCRIBED IN SAID TREATY IN SAID TRIBES OR BANDS OF INDIANS
THAN EXISTED IN THEM UPON THE ACQUISITION OF SAID TERRITORIES FROM
MEXICO BY THE LAWS THEREOF." 

THE PORTIONS OF THE FORT BRIDGER TREATY OF JULY 2, 1863, OF ANY
POSSIBLE EFFECT WILL BE FOUND IN NOTE 6, SUPRA. 

SUBSEQUENT TO THE RATIFICATION OF THE TREATIES, AN ACT OF CONGRESS
WAS PASSED ON FEBRUARY 23, 1865, 13 STAT. 432, FOR THE EXTINCTION OF
INDIAN TITLE TO LANDS IN UTAH TERRITORY; AND ANOTHER ACT ON JULY 20,
1867, 15 STAT. 17, FOR DEALING WITH HOSTILE INDIANS AND CHOOSING
RESERVATIONS FOR INDIANS DWELLING EAST OF THE ROCKY MOUNTAINS.  NONE OF
THE SHOSHONES ENTERED INTO TREATIES UNDER EITHER OF THESE ACTS EXCEPT
THE EASTERN SHOSHONES WHO HAD SIGNED THE FORT BRIDGER TREATY OF JULY 2,
1863.  ON JULY 3, 1868, THEY RELINQUISHED ALL CLAIM TO UNITED STATES
TERRITORY EXCEPT A RESERVATION IN WYOMING OF 3,047,730 ACRES.  15 STAT.
673.  NO OTHER TREATY OR OTHER FORMAL ARRANGEMENT HAS BEEN MADE BETWEEN
PETITIONERS AND THE UNITED STATES DEALING WITH THEIR LANDS.  FN7 
WITHOUT SEEKING ANY CESSION OR RELINQUISHMENT OF CLAIM FROM THE
SHOSHONE, EXCEPT THE EASTERN SHOSHONE RELINQUISHMENT OF JULY 3, 1868,
JUST REFERRED TO, THE UNITED STATES HAS TREATED THE REST OF THE
SHOSHONE TERRITORY AS A PART OF THE PUBLIC DOMAIN.  SCHOOL LANDS WERE
GRANTED.  13 STAT. 32; 26 STAT. 216; 28 STAT. 109.  NATIONAL FORESTS
WERE FREELY CREATED.  33 STAT. 2307; 34 STAT. 3099, 3198, 3206, 3247,
3251; 37 STAT. 1678.  THE LANDS WERE OPENED TO PUBLIC SETTLEMENT UNDER
THE HOMESTEAD LAWS.  REPORT OF THE COMMISSIONER OF THE GENERAL LAND
OFFICE (1868), PP. 55, 59, 63; REPORT OF THE COMMISSIONER OF THE
GENERAL LAND OFFICE (1869), PP. 163, 168, 177.  THUS WE HAVE
ADMINISTRATION OF THIS TERRITORY BY THE UNITED STATES PROCEEDING AS
THOUGH NO INDIAN LAND TITLES WERE INVOLVED. 

THE COURT OF CLAIMS EXAMINED THE EVIDENCE ADDUCED BEFORE IT AND
REACHED THE CONCLUSION AS A FINDING OF FACT THAT THE UNITED STATES "DID
NOT INTEND THAT IT (THE TREATY) SHOULD BE A STIPULATION OF RECOGNITION
AND ACKNOWLEDGEMENT OF ANY EXCLUSIVE USE AND OCCUPANCY RIGHT OR TITLE
OF THE INDIANS, PARTIES THERETO....  THE TREATY WAS INTENDED TO BE, AND
WAS, A TREATY OF PEACE AND AMITY WITH STIPULATED ANNUITIES FOR THE
PURPOSES OF ACCOMPLISHING THOSE OBJECTS AND ACHIEVING THAT END."  95
CT. CLS. AT 676.  THIS FINDING MOLDED THE OPINION AND JUDGMENT BELOW. 
WHETHER THE ISSUE AS TO ACKNOWLEDGMENT BY A TREATY OF INDIAN TITLE TO
LAND IS TREATED AS A QUESTION OF FACT, LIKE INDIAN RIGHT TO OCCUPANCY
ITSELF, UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339, 345; 53
STAT. 752, OR AS A MATTER OF INFERENCE TO BE DRAWN BY THE TRIER OF FACT
FROM THE TREATY AND SURROUNDING CIRCUMSTANCES OR AS A CONCLUSION OF LAW
TO BE REVIEWED BY THIS COURT UPON THE RECORD, THIS FINDING PLACES THE
BURDEN ON PETITIONERS TO OVERTHROW THE JUDGMENT OF THE COURT OF
CLAIMS.  IN REACHING ITS CONCLUSION, THE LOWER COURT POINTED OUT IN ITS
OPINION THAT NOTHING IN THE LEGISLATION OR OFFICIAL DOCUMENTS,
COMMUNICATIONS OR INSTRUCTIONS WHICH BROUGHT ABOUT THE TREATY INDICATED
ANY PURPOSE TO RECOGNIZE INDIAN TITLE TO THE TERRITORY OVER WHICH THE
SHOSHONE ROAMED AND HUNTED.  THE COMMISSIONERS WERE INSTRUCTED
SPECIFICALLY ON JULY 22, 1862, THAT THEY WERE NOT EXPECTED TO NEGOTIATE
FOR THE EXTINCTION OF THE INDIAN TITLE BUT FOR THE SECURITY OF ROUTES
OVER THE LANDS AND "A DEFINITE ACKNOWLEDGMENT AS WELL OF THE BOUNDARIES
OF THE ENTIRE COUNTRY THEY (THE INDIANS) CLAIM."  THE LETTER SHOWS
UNCERTAINTY AS TO THE LOCATION OF THE BANDS.  THE COMMISSIONER OF
INDIAN AFFAIRS WROTE OF THE SHOSHONE NATION AS ROAMING UTAH AND EASTERN
WASHINGTON BUT THE VERY INDEFINITENESS OF THE INFORMATION REQUIRED A
STATEMENT FROM THE INDIANS OF THEIR CLAIMS.  95 CT. CLS. AT 690.  THE
COMMISSIONER LEARNED FROM THE TREATIES THAT THE SHOSHONES CLAIMED
TERRITORY IN COLORADO, WYOMING, IDAHO, AND NEVADA AGGREGATING SEVERAL
TIMES THE ACREAGE IN UTAH.  THERE APPARENTLY WAS NO CLAIM TO WASHINGTON
LAND.  COMMISSIONER DOTY'S LETTER TRANSMITTING THE MAP DESCRIBING THE
TERRITORIES CLAIMED BY THE SHOSHONES AND TELLING OF THE NEGOTIATIONS
HAS NOTHING THAT INDICATES THE POSSIBILITY OF AN ACKNOWLEDGMENT BY THE
UNITED STATES OF THE INDIAN TITLE TO ANY OF THE LANDS.  SEE NOTE 5,
SUPRA. 

AN EXAMINATION OF THE TEXT OF THE NORTHWESTERN SHOSHONE TREATY AND
THE OTHERS WHICH WERE ENTERED INTO WITH THE OTHER SHOSHONE TRIBES, 95
CT. CLS. 642, SHOWS THE COMMISSIONERS CAREFULLY FOLLOWED THEIR
INSTRUCTIONS.  IN THE EASTERN SHOSHONE TREATY, THE BOUNDARIES ARE
SPOKEN OF "AS DEFINED AND DESCRIBED BY SAID NATION," NOTE 6, SUPRA.  IN
THE NORTHWESTERN SHOSHONE TREATY THE LAND IS DESCRIBED AS "THE COUNTRY
CLAIMED BY POKATELLO, FOR HIMSELF AND HIS PEOPLE."  IN THE WESTERN
SHOSHONE TREATY PERMISSION WAS GIVEN FOR MINERAL PROSPECTING AND
EXTRACTING AND THE BOUNDARIES ARE SAID TO DEFINE "THE COUNTRY CLAIMED
AND OCCUPIED."  THE SAME LANGUAGE IS USED AS TO THE BOUNDARIES IN THE
SHOSHONEE-GOSHIP TREATY.  THIS TREATY ALSO PERMITTED PROSPECTING FOR
AND THE WORKING OF MINES.  THE MIXED BANDS TREATY DESCRIBED A COUNTRY
"CLAIMED BY THE SAID BANDS" AND "AS DESCRIBED BY THEM."  NOWHERE IN ANY
OF THE SERIES OF TREATIES IS THERE A SPECIFIC ACKNOWLEDGMENT OF INDIAN
TITLE OR RIGHT OF OCCUPANCY.  IT SEEMS TO US A REASONABLE INFERENCE
THAT HAD EITHER THE INDIANS OR THE UNITED STATES UNDERSTOOD THAT THE
TREATIES RECOGNIZED THE INDIAN TITLE TO THESE DOMAINS, SUCH PURPOSE
WOULD HAVE BEEN CLEARLY AND DEFINITELY EXPRESSED BY INSTRUCTION, BY
TREATY TEXT OR BY THE REPORTS OF THE TREATY COMMISSIONERS, TO THEIR
SUPERIORS OR IN THE TRANSMISSION OF THE TREATIES TO THE SENATE FOR
RATIFICATION. 

PETITIONERS ARGUE THAT THE PERMISSION FROM THE INDIANS FOR TRAVEL OR
MINING AND FOR THE MAINTENANCE OF COMMUNICATION AND TRANSPORTATION
FACILITIES BY THE UNITED STATES FOR ITS CITIZENS IMPLY A RECOGNITION BY
THE UNITED STATES OF THE INDIAN TITLE.  THEY QUOTE, AS PERSUASIVE,
THESE WORDS FROM AN EARLY INDIAN CASE:  "THE ACCEPTANCE OF THESE
CESSIONS IS AN ACKNOWLEDGMENT OF THE RIGHT OF THE CHEROKEES TO MAKE OR
WITHOLD THEM."  WORCESTER V. GEORGIA, 6 PET. 515, 556.  AN EXAMINATION
OF THE CIRCUMSTANCES UNDER WHICH THIS COURT MADE THE JUST-QUOTED
STATEMENT ILLUSTRATES HOW INAPPOSITE ITS USE BY PETITIONERS IS TO THE
PRESENT QUESTION.  THE QUOTATION WAS WRITTEN IN EXPLANATION OF RIGHTS
OF PASSAGE WHICH WERE GRANTED BY THE CHEROKEES THROUGH LANDS WHICH BY
OTHER ARTICLES OF THE TREATY HAD BEEN SPECIFICALLY SET APART AND
SOLEMNLY GUARANTEED TO THE CHEROKEES.  7 STAT. 39.  NO SUCH SPECIFIC
RECOGNITION IS IN THE BOX ELDER TREATY.  BUT WE SEE NOTHING
INCONSISTENT WITH NON-RECOGNITION OF THE INDIAN TITLE AND THE INSERTION
OF THESE PROVISIONS AGAINST MOLESTATION OF STRUCTURES, TRAVELERS OR
EXPLOITERS OF MINERAL DEPOSITS WITHIN THE TERRITORIES.  THE UNITED
STATES UNDOUBTEDLY MIGHT HAVE ASSERTED, AT THE TIME OF THE TREATY, ITS
PURPOSE TO EXTINGUISH INDIAN TITLE OR IT MIGHT HAVE RECOGNIZED INDIAN
TITLE OR IT MIGHT, AS THE COURT OF CLAIMS HELD, HAVE SOUGHT ONLY
FREEDOM FROM HOSTILE ACTS FROM ROVING BANDS BY THE COMMITMENTS FOR
SUPPLIES.  THE TREATIES WERE MADE IN THE MIDST OF CIVIL WAR AND BEFORE
THE OUTCOME OF THAT CONFLICT WAS CLEAR. 

PETITIONERS URGE THAT RECOGNITION OF THE INDIAN TITLE WAS INFERRED
FROM THE LANGUAGE OF THE FORT LARAMIE TREATY OF SEPTEMBER 17, 1851, 11
STAT. 749, FORT BERTHOLD INDIANS V. UNITED STATES, 71 CT. CLS. 308;
ASSINIBOINE INDIAN TRIBE V. UNITED STATES, 77 CT. CLS. 347, 370; CROW
NATION V. UNITED STATES, 81 CT. CLS. 238, 272, AND THAT A DIFFERENT
INFERENCE IN THE PRESENT CASE IS INCONSISTENT WITH THOSE HOLDINGS. 
APART FROM THE FACT THAT DIFFERENT TREATIES ARE INVOLVED, THE
CIRCUMSTANCES SURROUNDING THE EXECUTION OF THE FORT LARAMIE TREATY
INDICATE A PURPOSE TO RECOGNIZE THE INDIAN TITLE TO THE LANDS DESCRIBED
IN THE FORT LARAMIE TREATY, WHICH MAY WELL HAVE INDUCED THE COURT OF
CLAIMS TO REACH ONE CONCLUSION IN THOSE CASES AND ANOTHER IN THIS.  FOR
EXAMPLE, THE INSTRUCTIONS TO THE COMMISSIONERS FOR THE FORT LARAMIE
NEGOTIATIONS CONTAINED THIS DIRECTION: 

"IT IS IMPORTANT, IF PRACTICABLE, TO ESTABLISH FOR EACH TRIBE SOME
FIXED BOUNDARIES WITHIN WHICH THEY SHOULD STIPULATE GENERALLY TO
RESIDE, AND EACH SHOULD AGREE NOT TO INTRUDE WITHIN THE LIMITS ASSIGNED
TO ANOTHER TRIBE WITHOUT ITS CONSENT."  71 CT. CLS. 312.  FURTHER IN
REPORTING THE TREATY, IT WAS SAID: 

"THE LAYING OFF OF THE COUNTRY INTO GEOGRAPHICAL, OR RATHER NATIONAL
DOMAINS, I REGARD AS A VERY IMPORTANT MEASURE, INASMUCH AS IT WILL TAKE
AWAY A GREAT CAUSE OF QUARREL AMONG THEMSELVES, AND AT THE SAME TIME
ENABLE THE GOVERNMENT TO ASCERTAIN WHO ARE THE DEPREDATORS, SHOULD
DEPREDATIONS HEREAFTER BE COMMITTED."  71 CT. CLS. 313. 

FURTHERMORE, THE WORDS OF THE FORT LARAMIE TREATY ARE MORE APT TO
EXPRESS RECOGNITION OF INDIAN TITLE THAN THOSE OF BOX ELDER.  ARTICLE 5
SAYS: 

"THE AFORESAID INDIAN NATIONS DO HEREBY RECOGNIZE AND ACKNOWLEDGE THE
FOLLOWING TRACTS OF COUNTRY, INCLUDED WITHIN THE METES AND BOUNDARIES
HEREINAFTER DESIGNATED, AS THEIR RESPECTIVE TERRITORIES, VIZ:..."  71
CT. CLS. 315.  IN CONSIDERATION OF THE TREATY STIPULATIONS THE UNITED
STATES BOUND ITSELF TO FURNISH SUPPLIES AND TO PROTECT THE INDIAN
NATIONS AGAINST DEPREDATIONS BY ITS CITIZENS.  SUCH DISTINCTIONS MAY
QUITE JUSTIFIABLY HAVE LED THE COURT OF CLAIMS TO DIFFERENT CONCLUSIONS
THAN IT REACHED FROM CONSIDERATION OF THE NORTHWESTERN SHOSHONE
TREATY.  FN8 

PETITIONERS POINT OUT THAT THE WORD "CLAIM" OR THE PHRASE "COUNTRY
CLAIMED" WAS OFTEN USED ON THE FRONTIER TO INDICATE TITLE OR RIGHT.  WE
KNOW THIS MEANING IN MINING LAW AND IN ENTRIES FOR LAND PATENTS.  THE
MEANING OF THE WORD OR PHRASE DEPENDS UPON ITS USE.  IN THESE TREATIES
IT SEEMS CLEARLY TO DESIGNATE THE BOUNDARIES OVER WHICH THE INDIANS
ASSERTED INDIAN TITLE BUT THAT FALLS SHORT OF ACKNOWLEDGMENT OF SUCH
RIGHT BY THE UNITED STATES. 

RELIANCE IS ALSO PLACED BY PETITIONERS UPON THE SENATE'S AMENDMENT TO
THE TREATY  FN9  AS A LIMITATION OF THE TREATY'S RECOGNITION OF INDIAN
TITLE TO THE DESCRIBED LANDS.  THIS LIMITATION, PETITIONERS ARGUE,
DEMONSTRATES THAT NO OTHER LIMITATION WAS INTENDED.  PETITIONERS TAKE
THE POSITION THAT THERE WAS NO NEED FOR THIS LIMITATION "IF THE TREATY
RECOGNIZED NO RIGHTS."  WHILE SUCH A LIMITATION WOULD NOT HAVE BEEN
NEEDED IF THE SENATE OF THAT DAY WERE POSITIVE, ON WEIGHING THE ISSUE
AS WE NOW DO, THAT THE TREATY WAS INEFFECTIVE TO GIVE ANY ADDITIONAL
COLOR TO INDIAN TITLES WITHIN OR WITHOUT THE MEXICAN CESSION, IT IS
UNLIKELY THAT THE RATIFYING BODY COULD OR DID APPRAISE THE SEVERAL
POSSIBILITIES WHICH ARE NOW PRESENTED.  THE SENATE WAS WELL ACQUAINTED
WITH THE COMPLICATIONS OF MEXICAN LAND TITLES IN THE CESSION.  A
PORTION OF THE LANDS LAY WITHIN THE BOUNDARIES OF THE FORMER MEXICAN
STATE OF ALTA CALIFORNIA.  THE SENATE WAS FAMILIAR, TOO, WITH THE LEGAL
POSITION OF INDIAN TITLES IN THE SHOSHONE COUNTRY OUTSIDE THE MEXICAN
CESSION.  FN10  SUCH TITLES WERE SUBJECT TO THE SAME RULES AS SIMILAR
TITLES IN ALL INDIAN COUNTRY.  4 STAT. 729.  THE STATUS OF INDIAN
TITLES WITHIN THE MEXICAN CESSION OF 1848, HOWEVER, HAD NOT THEN BEEN
JUDICIALLY DETERMINED.  FN11  THE TREATY OF GUADALUPE HIDALGO
GUARANTEED THE PROPERTY RIGHTS OF MEXICANS IN THE CESSION.  FN12
CONTROVERSIES OVER THESE RIGHTS HAD CAUSED THE REJECTION BY THE SENATE
OF ARTICLE X OF THE TREATY AS SUBMITTED.  FN13  THE REJECTION WAS
FOLLOWED BY THE PROTOCOL OF QUERETARO OF 1848 IN WHICH OUR
COMMISSIONERS FOR THE EXCHANGE OF RATIFICATIONS UNDERTOOK TO MAKE
EXPLANATION TO MEXICO OF THE REJECTION OF ARTICLE X. FN14  THE PROTOCOL
ITSELF WAS A SUBJECT OF HOUSE AND SENATE DEBATE AND OF EXTENSIVE
DIPLOMATIC CORRESPONDENCE.  FN15  THERE HAD BEEN, ALSO, THE ACT OF
MARCH 3, 1851, 9 STAT. 631, TO SETTLE THE PRIVATE LAND CLAIMS IN
CALIFORNIA, AFTER ITS ADMISSION AS A STATE.  LITIGATION OVER LAND
TITLES IN THE MEXICAN CESSION HAD ALREADY REACHED THIS COURT.  UNITED
STATES V. NYE, 21 HOW.  408; UNITED STATES V. BASSETT, 21 HOW.  412;
UNITED STATES V. ROSE, 23 HOW.  262.  WE DO NOT THINK THAT THE
AMENDMENT INDICATES MORE THAN AN INTENTION TO BE SURE THE NEW TREATY
DID NOT ADD TO THE COMPLEXITIES OF THE MEXICAN CESSION TITLE
SITUATION.  CF. BARKER V. HARVEY, 181 U.S. 481, 491; UNITED STATES V.
TITLE INS. CO., 265 U.S. 472, 484. 

PETITIONERS SUGGEST THAT IN THE CONSTRUCTION OF INDIAN TREATIES WE,
AS A SELF-RESPECTING NATION, HESITATE TO CONSTRUE LANGUAGE, WHICH IS
SELECTED BY US AS GUARDIAN OF THE INDIANS, TO OUR WARD'S PREJUDICE. 
"ALL DOUBTS," SAY PETITIONERS, "MUST BE RESOLVED IN THEIR (THE
INDIANS') FAVOR."  MR. JUSTICE MCLEAN, CONCURRING IN WORCESTER V.
GEORGIA, 6 PET. 515 AT 582, SAID, "THE LANGUAGE USED IN TREATIES WITH
THE INDIANS SHOULD NEVER BE CONSTRUED TO THEIR PREJUDICE."  BUT THE
CONTEXT SHOWS THAT THE JUSTICE MEANT NO MORE THAN THAT THE LANGUAGE
SHOULD BE CONSTRUED IN ACCORDANCE WITH THE TENOR OF THE TREATY.  FN16
THAT, WE THINK, IS THE RULE WHICH THIS COURT HAS APPLIED CONSISTENTLY
TO INDIAN TREATIES.  WE ATTEMPT TO DETERMINE WHAT THE PARTIES MEANT BY
THE TREATY.  WE STOP SHORT OF VARYING ITS TERMS TO MEET ALLEGED
INJUSTICES.  SUCH GENEROSITY, IF ANY MAY BE CALLED FOR IN THE RELATIONS
BETWEEN THE UNITED STATES AND THE INDIANS, IS FOR THE CONGRESS.  FN17 

IT SEEMS TO US CLEAR FROM THE CIRCUMSTANCES LEADING UP TO AND
FOLLOWING THE EXECUTION OF THE BOX ELDER TREATY THAT THE PARTIES DID
NOT INTEND TO RECOGNIZE OR ACKNOWLEDGE BY THAT TREATY THE INDIAN TITLE
TO THE LANDS IN QUESTION.  WHETHER THE LANDS WERE IN FACT HELD BY THE
SHOSHONES BY INDIAN TITLE FROM OCCUPANCY OR OTHERWISE OR WHAT RIGHTS
FLOW TO THE INDIANS FROM SUCH TITLE IS NOT INVOLVED.  SINCE THE RIGHTS,
IF ANY THE SHOSHONES HAVE, DID NOT ARISE UNDER OR GROW OUT OF THE BOX
ELDER TREATY, NO RECOVERY MAY BE HAD UNDER THE JURISDICTIONAL ACT. 
AFFIRMED. 

FN1  THE OTHER SECTIONS OF THE JURISDICTIONAL ACT ARE ROUTINE AND NOT
HERE INVOLVED.  THEY PROVIDE FOR THE EMPLOYMENT OF ATTORNEYS FOR THE
INDIANS, FOR SET-OFFS TO THE UNITED STATES, FOR REVIEW IN THIS COURT,
PROCESS, SERVICE ON AND APPEARANCE BY THE ATTORNEY GENERAL AND THE
DISPOSITION OF SUMS RECOVERED. 

FN2  THE CLAIM UPON WHICH THE INDIAN AFFAIRS COMMITTEE OF THE HOUSE
BASED ITS RECOMMENDATION FOR THE PASSAGE OF AN IDENTICAL JURISDICTIONAL
ACT WAS A CLAIM FOR THE TAKING OF THIS ABORIGINAL TITLE WHICH THE
COMMITTEE SAID WAS RECOGNIZED BY THE BOX ELDER TREATY.  H. REP. NO.
1030, 70TH CONG., 1ST SESS.; CF. UNITED STATES V. CREEK NATION, 295
U.S. 103, 108.    FN3  IN A SIMILAR JURISDICTIONAL ACT FOR THE BENEFIT
OF THE EASTERN SHOSHONE THE QUESTION OF WHETHER THEIR CLAIM AROSE UNDER
OR GREW OUT OF A CERTAIN TREATY WAS NOT INVOLVED.  THAT TREATY, FORT
BRIDGER, JULY 3, 1868, SPECIFICALLY RECOGNIZED AND SET APART A
RESERVATION FOR THE EASTERN SHOSHONE.  ART. II, 15 STAT. 673; 44 STAT.
1349; SHOSHONE TRIBE V. UNITED STATES, 299 U.S. 476. 

FN4  BEECHER V. WETHERBY, 95 U.S. 517, 525; BUTTZ V. NORTHERN PACIFIC
R. CO., 119 U.S. 55, 70; LONE WOLF V. HITCHCOCK, 187 U.S. 553, 564;
UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339, 347.    FN5
LETTER OF COMMISSIONER DOTY, TRANSMITTED BY MESSAGE OF THE PRESIDENT,
JANUARY, 1864, EXECUTIVE K, L, M, N, O, 38TH CONG., 1ST SESS., P. 17: 

"AS NONE OF THE INDIANS OF THIS COUNTRY HAVE PERMANENT PLACES OF
ABODE, IN THEIR HUNTING EXCURSIONS THEY WANDER OVER AN IMMENSE REGION,
EXTENDING FROM THE FISHERIES AT AND BELOW SALMON FALLS, ON THE
SHOSHONEE RIVER, NEAR THE OREGON LINE, TO THE SOURCES OF THAT STREAM,
AND TO THE BUFFALO COUNTRY BEYOND." 

FN6  ARTICLES II AND III FROM THE FORT BRIDGER TREATY OF JULY 2,
1863, THE ONE FIRST MADE, WILL ILLUSTRATE THE TYPE OF AGREEMENT: 

"ARTICLE II.  THE SEVERAL ROUTES OF TRAVEL THROUGH THE SHOSHONEE
COUNTRY, NOW OR HEREAFTER USED BY WHITE MEN, SHALL BE AND REMAIN
FOREVER FREE AND SAFE FOR THE USE OF THE GOVERNMENT OF THE UNITED
STATES, AND OF ALL EMIGRANTS AND TRAVELLERS UNDER ITS AUTHORITY AND
PROTECTION, WITHOUT MOLESTATION OR INJURY FROM ANY OF THE PEOPLE OF
SAID NATION.  AND IF DEPREDATIONS SHOULD AT ANY TIME BE COMMITTED BY
BAD MEN OF THEIR NATION, THE OFFENDERS SHALL BE IMMEDIATELY SEIZED AND
DELIVERED UP TO THE PROPER OFFICERS OF THE UNITED STATES, TO BE
PUNISHED AS THEIR OFFENCES SHALL DESERVE; AND THE SAFETY OF ALL
TRAVELLERS PASSING PEACEABLY OVER SAID ROUTES IS HEREBY GUARANTEED BY
SAID NATION.  MILITARY AGRICULTURAL SETTLEMENTS AND MILITARY POSTS MAY
BE ESTABLISHED BY THE PRESIDENT OF THE UNITED STATES ALONG SAID ROUTES;
FERRIES MAY BE MAINTAINED OVER THE RIVERS WHEREVER THEY MAY BE
REQUIRED; AND HOUSES ERECTED AND SETTLEMENTS FORMED AT SUCH POINTS AS
MAY BE NECESSARY FOR THE COMFORT AND CONVENIENCE OF TRAVELLERS. 

"ARTICLE III.  THE TELEGRAPH AND OVERLAND STAGE LINES HAVING BEEN
ESTABLISHED AND OPERATED THROUGH A PART OF THE SHOSHONEE COUNTRY, IT IS
EXPRESSLY AGREED THAT THE SAME MAY BE CONTINUED WITHOUT HINDRANCE,
MOLESTATION, OR INJURY FROM THE PEOPLE OF SAID NATION; AND THAT THEIR
PROPERTY, AND THE LIVES OF PASSENGERS IN THE STAGES, AND OF THE
EMPLOYEES OF THE RESPECTIVE COMPANIES, SHALL BE PROTECTED BY THEM. 

"AND FURTHER, IT BEING UNDERSTOOD THAT PROVISION HAS BEEN MADE BY THE
GOVERNMENT OF THE UNITED STATES FOR THE CONSTRUCTION OF A RAILWAY FROM
THE PLAINS WEST TO THE PACIFIC OCEAN, IT IS STIPULATED BY SAID NATION
THAT SAID RAILWAY, OR ITS BRANCHES, MAY BE LOCATED, CONSTRUCTED, AND
OPERATED, WITHOUT MOLESTATION FROM THEM, THROUGH ANY PORTION OF THE
COUNTRY CLAIMED BY THEM." 

ARTICLE IV RELATING TO BOUNDARIES IN THIS FORT BRIDGER TREATY READS
AS FOLLOWS: 

"IT IS UNDERSTOOD THE BOUNDARIES OF THE SHOSHONEE COUNTRY, AS DEFINED
AND DESCRIBED BY SAID NATION, IS AS FOLLOWS:  ON THE NORTH, BY THE
MOUNTAINS ON THE NORTH SIDE OF THE VALLEY OF SHOSHONEE OR SNAKE RIVER;
ON THE EAST, BY THE WIND RIVER MOUNTAINS, PEENAHPAH RIVER, THE NORTH
FORK OF PLATTE OR KOO-CHIN-AGAH, AND THE NORTH PARK OR BUFFALO HOUSE;
AND ON THE SOUTH, BY YAMPAH RIVER AND THE UINTAH MOUNTAINS.  THE
WESTERN BOUNDARY IS LEFT UNDEFINED, THERE BEING NO SHOSHONEES FROM THAT
DISTRICT OF COUNTRY PRESENT; BUT THE BANDS NOW PRESENT CLAIM THAT THEIR
OWN COUNTRY IS BOUNDED ON THE WEST BY SALT LAKE."  18 STAT. 685-6. 

FN7  THE COURT OF CLAIMS SUMMARIZED THE HISTORY OF THE PETITIONER
BANDS, SUBSEQUENT TO THE BOX ELDER TREATY, IN THIS WAY: 

"AFTER THE MAKING OF THE TREATY OF JULY 30, 1863, THE PLAINTIFF BANDS
BECAME WIDELY SCATTERED OVER NORTHERN UTAH AND NEVADA, AND SOUTHERN
IDAHO.  IN 1873 THE COMMISSIONER OF INDIAN AFFAIRS APPOINTED A
COMMISSION TO INVESTIGATE ALL TRIBES AND BANDS IN THIS REGION AND TO
ASCERTAIN THEIR NUMBER AND THE PROBABILITY OF GATHERING THEM UPON ONE
OR MORE RESERVATIONS WHERE THEY COULD BE MORE IMMEDIATELY UNDER THE
CARE OF THE GOVERNMENT.  THE COMMISSION MADE AN EXHAUSTIVE
INVESTIGATION INTO THE MATTERS ENTRUSTED TO IT AND REPORTED THAT IT HAD
NO TRUSTWORTHY INFORMATION AS TO THE NUMBER OF BANDS OF THE
NORTHWESTERN SHOSHONE INDIANS.  THE COMMISSION FURTHER REPORTED THAT A
PART OF THE NORTHWESTERN SHOSHONES UNDER POCATELLO (WHO SIGNED THE
TREATY OF JULY 30, 1863) HAD ALREADY GONE TO THE FORT HALL (IDAHO)
RESERVATION IN SOUTHEAST IDAHO, AND THAT CHIEF TAV-I-WUN-SHEA, WITH HIS
SMALL BAND, HAD GONE TO THE WIND RIVER (WYOMING) RESERVATION CREATED
AND SET APART UNDER THE TREATY WITH THE EASTERN SHOSHONES IN 1868. 
TOOMONTSO (WHO HAD SIGNED THE NORTHWESTERN TREATY OF JULY 30) AND HIS
BAND AT ABOUT THIS TIME TOOK UP THEIR ABODE ON THE FORT HALL INDIAN
RESERVATION AND AN INDEFINITE NUMBER OF INDIANS OF THIS BAND HAD GONE
TO THE WIND RIVER RESERVATION.  EVENTUALLY THE REMNANTS OF THE BANDS OF
INDIANS UNDER SAN PITZ (A SIGNER OF THE NORTHWESTERN SHOSHONE TREATY OF
JULY 30), AND SAIGWITS, ALSO A PARTY TO THE TREATY, WERE INDUCED BY THE
COMMISSION TO REMOVE TO THE FORT HALL INDIAN RESERVATION, THUS MAKING A
TOTAL OF 400 NORTHWESTERN SHOSHONE INDIANS ON THE FORT HALL
RESERVATION.  THE COMMISSION FURTHER REPORTED THAT A CAREFUL
ENUMERATION DISCLOSED THAT THERE WERE 400 NORTHWESTERN SHOSHONE INDIANS
IN SOUTHERN IDAHO.  IN 1873 A NUMBER OF NORTHWESTERN SHOSHONE INDIANS
HAD GATHERED IN NORTHEASTERN NEVADA AND WERE ASSIGNED BY THE INDIAN
AGENT IN NEVADA TO A SMALL AREA IN THAT SECTION AS A HOME.  ON MAY 10,
1877, THIS TRACT, BY ORDER OF THE PRESIDENT, WAS WITHDRAWN FROM SALE OR
SETTLEMENT AND SET APART AS A RESERVATION FOR THE NORTHWESTERN SHOSHONE
INDIANS.  HOWEVER, IN 1879, ALL THE INDIANS THEREON, NUMBERING ABOUT
300, WERE REMOVED TO THE WESTERN SHOSHONE INDIAN RESERVATION KNOWN AS
THE DUCK VALLEY INDIAN RESERVATION IN SOUTHWESTERN IDAHO AND NORTHERN
NEVADA."  95 CT. CLS. AT 677. 

FN8  WE NOTE BUT CONSIDER UNIMPORTANT, BECAUSE THIS ISSUE WAS NOT
INVOLVED, CAUSAL REFERENCES BY THIS AND OTHER COURTS THAT THE SHOSHONE
TREATIES RECOGNIZED INDIAN TITLE IN THE SHOSHONES.  SHOSHONE TRIBE V.
UNITED STATES, 299 U.S. 476, 485; UNITED STATES V. SHOSHONE TRIBE, 304
U.S. 111, 113; SHOSHONE INDIANS V. UNITED STATES, 85 CT. CLS. 331, 335;
UNITED STATES V. BOARD OF COMM'RS, 145 F.2D 329. 

WE DO NOT CONSIDER THE REFERENCES OF THE ADMINISTRATORS IN ROUTINE
COMMUNICATIONS CALLED FOR IN THE PREPARATION OF THIS CASE BEFORE THE
COURT OF CLAIMS TO THE "SHOSHONI INDIAN RESERVATION (NORTHWESTERN
BAND)" TO THE FACT THAT THE TERRITORY OF THE SHOSHONES "WAS RECOGNIZED
BY THE UNITED STATES" OR "SET APART FOR THE SHOSHONE INDIANS" OF ANY
MORE WEIGHT.  NOTHING IN THESE STATEMENTS SHOWS THAT THE ATTENTION OF
THE ADMINISTRATORS WAS FOCUSED ON THE PROBLEM OF RECOGNITION OR THAT
THEY REFLECTED A CONTEMPORANEOUS INTERPRETATION. 

IT DOES NOT SEEM IMPORTANT TO DETERMINE WHETHER THE COURT OF CLAIMS
ABUSED ITS DISCRETION IN REFUSING ADMISSION TO SUCH ADMINISTRATIVE
LETTERS WRITTEN IN 1939, RELATING TO PREPARATION FOR THIS SUIT, OF MAPS
OF THE TERRITORY.  WE HAVE EXAMINED THE TENDERED EVIDENCE.  IT WAS ALSO
SEEN BY THE COURT OF CLAIMS AND IF IT HAD BEEN ADMITTED IT WOULD HAVE
BEEN MERELY CUMULATIVE AND COULD NOT HAVE CHANGED THE CONCLUSION
BELOW. 

FN9  "NOTHING HEREIN CONTAINED SHALL BE CONSTRUED OR TAKEN TO ADMIT
ANY OTHER OR GREATER TITLE OR INTEREST IN THE LANDS EMBRACED WITHIN THE
TERRITORIES DESCRIBED IN SAID TREATY IN SAID TRIBES OR BANDS OF INDIANS
THAN EXISTED IN THEM UPON THE ACQUISITION OF SAID TERRITORIES FROM
MEXICO BY THE LAWS THEREOF." 

FN10  SPANISH CLAIMS NORTH OF THE 42ND PARALLEL OF LATITUDE, THEN THE
NORTHERN LINE OF MEXICO, WERE CEDED TO THE UNITED STATES IN 1821,
TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES, VOL. 3, P.
3, AND ART. 8; RUSSIAN CLAIMS SOUTH OF 45 DEGREES 40' NORTH LATITUDE IN
1824, OP. CIT. P. 151 AND ART. 3; AND THE BRITISH CLAIMS SOUTH OF NORTH
LATITUDE 49 DEGREES IN 1846, OP. CIT., VOL. 5, P. 3 AND ART. III. 

FN11  BARKER V. HARVEY, 181 U.S. 481, CRAMER V. UNITED STATES, 261
U.S. 219; UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339. 

FN12  5 TREATIES OP. CIT., SUPRA, 207, ART. VIII AND IX.  UNITED
STATES V. O'DONNELL, 303 U.S. 501, 504. 

FN13  TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES,
VOL. 5, PP. 242, 245: 

"ARTICLE X. ALL GRANTS OF LAND MADE BY THE MEXICAN GOVERNMENT OR BY
THE COMPETENT AUTHORITIES, IN TERRITORIES PREVIOUSLY APPERTAINING TO
MEXICO, AND REMAINING FOR THE FUTURE WITHIN THE LIMITS OF THE UNITED
STATES, SHALL BE RESPECTED AS VALID, TO THE SAME EXTENT THAT THE SAME
GRANTS WOULD BE VALID, IF THE SAID TERRITORIES HAD REMAINED WITHIN THE
LIMITS OF MEXICO  ...." 

FN14  THE EXPLANATION IN THE SECOND ARTICLE OF THE PROTOCOL WAS AS
FOLLOWS: 

"SECOND.  THE AMERICAN GOVERNMENT BY SUPPRESSING THE XTH ARTICLE OF
THE TREATY OF GUADALUPE DID NOT IN ANY WAY INTEND TO ANNUL THE GRANTS
OF LANDS MADE BY MEXICO IN THE CEDED TERRITORIES.  THESE GRANTS,
NOTWITHSTANDING THE SUPPRESSION OF THE ARTICLE OF THE TREATY, PRESERVE
THE LEGAL VALUE WHICH THEY MAY POSSESS; AND THE GRANTEES MAY CAUSE
THEIR LEGITIMATE TITLES TO BE ACKNOWLEDGED BEFORE THE AMERICAN
TRIBUNALS. 

"CONFORMABLY TO THE LAW OF THE UNITED STATES, LEGITIMATE TITLES TO
EVERY DESCRIPTION OF PROPERTY PERSONAL AND REAL, EXISTING IN THE CEDED
TERRITORIES, ARE THOSE WHICH WERE LEGITIMATE TITLES UNDER THE MEXICAN
LAW IN CALIFORNIA AND NEW MEXICO UP TO THE 13TH OF MAY 1846, AND IN
TEXAS UP TO THE 2D MARCH 1836."  TREATIES, ID., VOL. 5, P. 381. 

FN15  SEE TREATIES, ID., VOL. 5, PP. 380-406, PARTICULARLY P. 387. 

FN16  THIS IS THE MEANING OF THE OTHER CASES WHICH ARE CITED BY
PETITIONERS UPON THIS POINT, JONES V. MEEHAN, 175 U.S. 1, 10-12; UNITED
STATES V. WINANS, 198 U.S. 371, 380; MARLIN V. LEWALLEN, 276 U.S. 58,
64; UNITED STATES V. PAYNE, 264 U.S. 446, 448-49; NORTHERN PACIFIC R.
CO. V. UNITED STATES, 227 U.S. 355, 366; SEUFERT BROS. CO. V. UNITED
STATES, 249 U.S. 194, 198; UNITED STATES V. SHOSHONE TRIBE, 304 U.S.
111, 116; SEE ALSO TULEE V. WASHINGTON, 315 U.S. 681, 684. 

FN17  UNITED STATES V. CHOCTAW NATION, 179 U.S. 494, 534-36; CHOCTAW
NATION V. UNITED STATES, 318 U.S. 423, 432. 

MR. JUSTICE ROBERTS IS OF THE VIEW THAT THE JUDGMENT SHOULD BE
REVERSED. 

MR. JUSTICE JACKSON, CONCURRING. 

MR. JUSTICE BLACK AND I THINK IT MAY BE DESIRABLE TO STATE SOME OF
THE DIFFICULTIES WHICH UNDERLIE EFFORTS TO LEAVE SUCH AN INDIAN
GRIEVANCE AS THIS TO SETTLEMENT BY A LAWSUIT. 

IT IS HARD TO SEE HOW ANY JUDICIAL DECISION UNDER SUCH A
JURISDICTIONAL ACT CAN MUCH ADVANCE SOLUTION OF THE PROBLEM OF THE
SHOSHONES.  ANY JUDGMENT THAT WE MAY RENDER GIVES TO THESE INDIANS
NEITHER THEIR LANDS NOR MONEY.  THE JURISDICTIONAL ACT PROVIDES THAT
THE PROCEEDS ABOVE ATTORNEYS' FEES SHALL "BE DEPOSITED IN THE TREASURY
OF THE UNITED STATES TO THE CREDIT OF THE INDIANS" AT 4 PER CENT
INTEREST AND "SHALL BE SUBJECT TO APPROPRIATION BY CONGRESS ONLY FOR
THE HEALTH, EDUCATION, AND INDUSTRIAL ADVANCEMENT OF SAID INDIANS." 
THE ONLY CASH PAYMENT IS ATTORNEYS' FEES.  SECTION 7 PROVIDES THAT THE
COURT OF CLAIMS SHALL DETERMINE A REASONABLE FEE, NOT TO EXCEED 10 PER
CENT OF THE RECOVERY, TOGETHER WITH EXPENSES, TO BE PAID TO THE
ATTORNEYS FOR THE NORTHWESTERN BANDS OUT OF THE SUMS FOUND DUE.  AFTER
COUNSEL ARE THUS PAID, NOT A CENT IS PUT INTO THE REACH OF THE INDIANS;
ALL THAT IS DONE FOR THEM BY A JUDGMENT IS TO EARMARK SOME FUNDS IN THE
TREASURY FROM WHICH CONGRESS MAY AS IT SEES FIT FROM TIME TO TIME MAKE
APPROPRIATIONS "FOR THE HEALTH, EDUCATION, AND INDUSTRIAL ADVANCEMENT
OF SAID INDIANS."  CONGRESS COULD DO THIS, OF COURSE, WITHOUT ANY
JUDGMENT OR EARMARKING OF FUNDS, AS IT OFTEN HAS DONE.  CONGRESS, EVEN
AFTER JUDGMENT, STILL MUST DECIDE THE AMOUNT AND TIMES OF PAYMENT TO
THE INDIANS ACCORDING TO THEIR NEEDS. 

WE WOULD NOT BE SECOND TO ANY OTHER IN RECOGNIZING THAT - JUDGMENT OR
NO JUDGMENT - A MORAL OBLIGATION OF A HIGH ORDER RESTS UPON THIS
COUNTRY TO PROVIDE FOR DECENT SHELTER, CLOTHING, EDUCATION, AND
INDUSTRIAL ADVANCEMENT OF THE INDIAN.  NOTHING IS GAINED BY DWELLING
UPON THE UNHAPPY CONFLICTS THAT HAVE PREVAILED BETWEEN THE SHOSHONES
AND THE WHITES - CONFLICTS WHICH SOMETIMES LEAVES ONE IN DOUBT WHICH
SIDE COULD MAKE THE BETTER CLAIM TO BE CIVILIZED.  THE GENERATION OF
INDIANS WHO SUFFERED THE PRIVATIONS, INDIGNITIES, AND BRUTALITIES OF
THE WESTWARD MARCH OF THE WHITES HAVE GONE TO THE HAPPY HUNTING GROUND,
AND NOTHING THAT WE CAN DO CAN SQUARE THE ACCOUNT WITH THEM.  WHATEVER
SURVIVES IS A MORAL OBLIGATION RESTING ON THE DESCENDANTS OF THE WHITES
TO DO FOR THE DESCENDANTS OF THE INDIANS WHAT IN THE CONDITIONS OF THIS
TWENTIETH CENTURY IS THE DECENT THING. 

IT IS MOST UNFORTUNATE TO TRY TO MEASURE THIS MORAL DUTY IN TERMS OF
LEGAL OBLIGATIONS AND ASK THE COURT TO SPELL OUT INDIAN LEGAL RIGHTS
FROM WRITTEN INSTRUMENTS MADE AND PROBABLY BROKEN LONG AGO AND TO PUT
OUR MORAL DUTY IN FIGURES AS LEGAL DAMAGES.  THE INDIAN PROBLEM IS
ESSENTIALLY A SOCIOLOGICAL PROBLEM, NOT A LEGAL ONE.  WE CAN MAKE ONLY
A PRETENSE OF ADJUDICATION OF SUCH CLAIMS, AND THAT ONLY BY INDULGING
THE MOST UNREALISTIC AND FICTIONAL ASSUMPTIONS. 

HERE WE ARE ASKED TO GO BACK OVER THREE QUARTERS OF A CENTURY TO
SPELL OUT THE MEANING OF A MOST AMBIGUOUS WRITING MADE IN 1863.  ONE OF
THE PARTIES DID NOT KEEP, OR KNOW HOW TO KEEP, WRITTEN RECORDS OF
NEGOTIATIONS.  WRITTEN EVIDENCE BEARING ON INTENTION IS ONLY THAT WHICH
THE WHITES CHOSE TO MAKE.  IT DOES NOT TAKE A PARTICULARLY DISCERNING
EYE TO SEE THAT THESE RECORDS, WRITTEN USUALLY BY INDIAN AGENTS, ARE
QUITE APT TO SPEAK WELL OF THE WRITER'S VIRTUE AND GOOD INTENTION. 
EVIDENCE FROM THE MEMORY OF MAN IS NO LONGER AVAILABLE.  EVEN IF BOTH
PARTIES TO THESE AGREEMENTS WERE OF OUR OWN STOCK, WE BEING A RECORD
KEEPING PEOPLE, A COURT WOULD STILL HAVE THE GRAVEST DIFFICULTY
DETERMINING WHAT THEIR MOTIVES AND INTENTIONS AND MEANINGS WERE. 
STATUTES OF LIMITATIONS CUT OFF MOST SUCH INQUIRIES, NOT BECAUSE A
CLAIM BECOMES LESS JUST THE LONGER IT IS DENIED, BUT BECAUSE ANOTHER
POLICY INTERVENES - THE POLICY TO LEAVE IN REPOSE MATTERS WHICH CAN NO
LONGER BE THE SUBJECT OF INTELLIGENT ADJUDICATION.    EVEN IF THE
HANDICAP OF TIME COULD BE OVERCOME, WE COULD NOT SATISFACTORILY APPLY
LEGAL TECHNIQUES TO INTERPRETATION OF THIS TREATY.  THE INDIAN PARTIES
TO THE TREATY WERE A BAND OF SIMPLE, RELATIVELY PEACEFUL, AND EXTREMELY
PRIMITIVE MEN.  THE POPULATION OF THE BAND WAS ONLY ABOUT 1,500, AND
THE TERRITORIES CLAIMED TO HAVE BEEN OCCUPIED AS THEIR HOME CONSISTED
OF OVER 15,000,000 ACRES OF LAND IN IDAHO, UTAH, AND NEVADA - ABOUT
10,000 ACRES FOR EVERY INDIVIDUAL IN THE BAND.  OF COURSE SO FEW COULD
NOT PATROL AND DEFEND SO VAST A TERRITORY AGAINST INROADS BY THE MORE
AGGRESSIVE AND EFFICIENT WHITES.  THE WHITE WAS A BETTER KILLER.  THE
GAME DISAPPEARED, THE LANDS WERE NOT PRODUCTIVE, AND IN PEACE THE
INDIANS BECAME DESTITUTE.  DESPERATION STIMULATED OR PERHAPS PRODUCED
PREDATORY TENDENCIES AND THEY BEGAN TO FALL UPON THE OVERLAND CARAVANS
AND TO STEAL AND ROB.  THE WHITES BROUGHT FORTH THEIR ARMIES AND
REDUCED THE INDIANS TO SUBMISSION.  THEN THE WHITES "NEGOTIATED" A
TREATY. 

WE REALIZE THAT FOR OVER A CENTURY IT HAS BEEN A JUDICIAL PRACTICE TO
CONSTRUE THESE "AGREEMENTS" WITH INDIANS, AS IF THEY WERE CONTRACTS
BETWEEN WHITE MEN.  IN SOME CASES, WHERE THE PROVISIONS ARE SIMPLE AND
DEFINITE AND DEAL WITH CONCRETE LANDS OR MATTERS, THIS MAY BE
PRACTICABLE.  BUT DESPITE ANTIQUITY OF THE CUSTOM, TO APPLY THE
LITIGATION PROCESS TO SUCH A PROBLEM AS WE HAVE HERE SEEMS FAR
FETCHED.  THE MOST ELEMENTAL CONDITION OF A BARGAIN WAS NOT PRESENT,
FOR THERE WAS NOTHING LIKE EQUALITY OF BARGAINING POWER.  ON ONE SIDE
WERE DOMINANT, POWERFUL, SHREWD, AND EDUCATED WHITES, WHO KNEW EXACTLY
WHAT THEY WANTED.  ON THE OTHER SIDE WERE DESTITUTE, ILLITERATE INDIANS
WHO PRIMARILY WANTED TO BE LET ALONE AND WHO WANTED BY SOME MEANS TO
CONTINUE TO LIVE THEIR OWN ACCUSTOMED LIVES.  HERE WE ARE ASKED TO
DECIDE WHETHER THEIR INTENT WAS TO RELINQUISH TITLES OR MAKE
RESERVATIONS OF TITLES OR RECOGNITION OF TITLES.  THE INDIAN PARTIES
DID NOT KNOW WHAT TITLES WERE, HAD NO SUCH CONCEPT AS THAT OF
INDIVIDUAL LAND TITLE, AND HAD NO SENSE OF PROPERTY IN LAND.  HERE WE
ARE ASKED TO ATTRIBUTE LEGAL MEANINGS TO SUBSCRIBERS OF A WRITTEN
INSTRUMENT WHO HAD NO WRITTEN LANGUAGE OF THEIR OWN IN WHICH TO EXPRESS
ANY MEANING.  WE DOUBT IF ANY INTERPRETER COULD INTELLIGENTLY TRANSLATE
THE CONTENTS OF A WRITING THAT DEALS WITH THE PROPERTY CONCEPT, FOR THE
INDIANS DID NOT HAVE A WORD FOR IT.  PEOPLE DO NOT HAVE WORDS TO FIT
IDEAS THAT HAVE NEVER OCCURRED TO THEM.  OWNERSHIP MEANT NO MORE TO
THEM THAN TO ROAM THE LAND AS A GREAT COMMON, AND TO POSSESS AND ENJOY
IT IN THE SAME WAY THAT THEY POSSESSED AND ENJOYED SUNLIGHT AND THE
WEST WIND AND THE FEEL OF SPRING IN THE AIR.  ACQUISITIVENESS, WHICH
DEVELOPS A LAW OF REAL PROPERTY, IS AN ACCOMPLISHMENT ONLY OF THE
"CIVILIZED." 

OF COURSE THE INDIANS MAY HAVE HAD SOME VAGUE IDEA THAT THEREAFTER
THEY WERE TO STAY OFF CERTAIN LANDS AND THE WHITE MEN IN RETURN WERE TO
STAY OFF CERTAIN OTHER LAND.  BUT WE DO NOT THINK IT IS POSSIBLE NOW TO
REDUCE SUCH A NEBULOUS ACCORD TO TERMS OF COMMON-LAW CONTRACT AND
CONVEYANCING.  THE TREATY WAS A POLITICAL DOCUMENT.  IT WAS INTENDED TO
PACIFY THE INDIANS AND TO LET THE WHITES TRAVEL IN PEACE A ROUTE THEY
SOMEHOW WERE GOING TO TRAVEL ANYWAY. 

HOW SHOULD WE TURN INTO MONEY'S WORTH THE RIGHTS, IF ANY, OF WHICH
THE INDIANS HAVE BEEN DEPRIVED?  SHOULD WE MEASURE IT IN TERMS OF WHAT
WAS LOST TO A PEOPLE WHO NEEDED 10,000 ACRES APIECE TO SUSTAIN
THEMSELVES THROUGH HUNTING AND NOMADIC LIVING, WHO HAD NO SYSTEM OR
STANDARD OF EXCHANGE, AND WHOSE REPRESENTATIVES IN MAKING THE TREATY
APPEAR TO HAVE BEEN SOFTENED FOR THE JOB BY GIFTS OF BLANKETS AND
TRINKETS?  SHOULD WE MEASURE IT IN TERMS OF WHAT WAS GAINED TO OUR
PEOPLE, WHO SUSTAIN THEMSELVES IN LARGE NUMBERS ON FEW ACRES BY GREATER
EFFICIENCY AND UTILIZATION?  OF COURSE AMENDS CAN BE MADE ONLY TO
PROGENY IN TERMS OF THEIR PRESENT NEEDS AS THE JURISDICTIONAL ACT
RECOGNIZES WILL ULTIMATELY BE DONE.  THE INDIANS' GRIEVANCE CALLS FOR
SYMPATHETIC, INTELLIGENT, AND GENEROUS HELP IN DEVELOPING THE LATENT
TALENTS AND ASPIRATIONS OF THE LIVING GENERATION, AND THERE IS LITTLE
ENLIGHTENMENT FOR THAT TASK FROM ENDLESS AND POINTLESS LAWSUITS OVER
THE NEGOTIATION OF GENERATIONS LONG GONE TO THEIR REST. 

WE AGREE WITH MR. JUSTICE REED THAT NO LEGAL RIGHTS ARE TODAY TO BE
RECOGNIZED IN THE SHOSHONES BY REASON OF THIS TREATY.  WE AGREE WITH
MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY AS TO THEIR MORAL DESERTS. 
WE DO NOT MEAN TO LEAVE THE IMPRESSION THAT THE TWO HAVE ANY RELATION
TO EACH OTHER.  THE FINDING THAT THE TREATY CREATES NO LEGAL
OBLIGATIONS DOES NOT RESTRICT CONGRESS FROM SUCH APPROPRIATIONS AS ITS
JUDGMENT DICTATES "FOR THE HEALTH, EDUCATION, AND INDUSTRIAL
ADVANCEMENT OF SAID INDIANS," WHICH IS THE POSITION IN WHICH CONGRESS
WOULD FIND ITSELF IF WE FOUND THAT IT DID CREATE LEGAL OBLIGATIONS AND
TRIED TO PUT A VALUE ON THEM. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I THINK THE CLAIMS WHICH THESE INDIANS ASSERT ARE CLAIMS "ARISING
UNDER OR GROWING OUT OF THE TREATY OF JULY 30, 1863." 

HE WHO COMES TO MY ABODE AND BARGAINS FOR FREE TRANSIT OR A RIGHT OF
WAY ACROSS THE LAND ON WHICH I LIVE AND WHICH I PROCLAIM TO BE MY OWN
CERTAINLY RECOGNIZES THAT I HAVE A CLAIM TO IT. THAT AND MORE WAS DONE
HERE.  ROUTES OF TRAVEL THROUGH THIS SHOSHONE COUNTRY, THE
ESTABLISHMENT OF MILITARY AGRICULTURAL SETTLEMENTS AND MILITARY POSTS,
THE MAINTENANCE OF FERRIES OVER THE RIVERS, THE ERECTION OF HOUSES AND
SETTLEMENTS, THE LOCATION, CONSTRUCTION, AND OPERATION OF A RAILROAD,
THE MAINTENANCE OF TELEGRAPH AND OVERLAND STAGE LINES WERE ALL
NEGOTIATED.  THESE PROVISIONS ALONE CONSTITUTE PLAIN RECOGNITION BY THE
UNITED STATES THAT IT WAS DEALING WITH PEOPLE WHO HAD THE POWER TO
GRANT THESE RIGHTS OF TRAVEL AND SETTLEMENT.  THE UNITED STATES, OF
COURSE, DID NOT NEED TO FOLLOW THAT COURSE.  IT COULD HAVE INVADED THIS
INDIAN COUNTRY AND EXTINGUISHED INDIAN TITLE BY THE SWORD OR BY
APPROPRIATION.  UNITED STATES V. SANTA FE PACIFIC R. CO., 314 U.S. 339,
347, AND CASES CITED.  BUT IT DID NOT CHOOSE THAT COURSE.  IT CHOSE TO
NEGOTIATE A TREATY.  AND THROUGH THE MEDIUM OF THE TREATY IT OBTAINED
FROM THESE INDIANS RIGHTS OF WAY, RIGHTS TO SETTLE, RIGHTS OF TRANSIT. 
IT WAS STATED IN WORCESTER V. GEORGIA, 6 PET. 515, 556, THAT "THE
ACCEPTANCE OF THESE CESSIONS IS AN ACKNOWLEDGMENT OF THE RIGHT OF THE
CHEROKEES TO MAKE OR WITHHOLD THEM."  THAT IS GOOD LAW.  IT IS AS
APPLICABLE HERE AS IT WAS IN THAT EARLY CASE.  THERE, TO BE SURE, LANDS
HAD BEEN SPECIFICALLY SET APART FOR THE CHEROKEES.  BUT THAT IS NOT A
MATERIAL DIFFERENCE.  INDIAN TITLE IS THE RIGHT TO OCCUPANCY BASED ON
ABORIGINAL POSSESSION.  UNITED STATES V. SANTA FE PACIFIC R. CO.,
SUPRA.  IT HAS BEEN THE POLICY OF THE UNITED STATES FROM THE BEGINNING
TO RESPECT THAT RIGHT OF OCCUPANCY.  ID., P. 345.  AS STATED IN MITCHEL
V. UNITED STATES, 9 PET. 711, 746, THE INDIAN "RIGHT OF OCCUPANCY IS
CONSIDERED AS SACRED AS THE FEE SIMPLE OF THE WHITES."  THUS WE MAY NOT
SAY THAT BECAUSE THESE INDIANS HAD ONLY INDIAN TITLE THIS CASE CAN BE
DISTINGUISHED FROM WORCESTER V. GEORGIA, SUPRA.  WHEN THE UNITED STATES
OBTAINED THESE CESSIONS IT ACKNOWLEDGED WHATEVER CLAIM TO THE LAND
THESE INDIANS HAD.  THE INDIANS ASK NO MORE NOW. 

MOREOVER, THE SENATE IN RATIFYING THE TREATY MADE CLEAR THAT IT
CONSTRUED THE TREATY AS RECOGNIZING THE TITLE OR CLAIM OF THESE INDIANS
TO THIS LAND.  THE AMENDMENT ADDED IN THE SENATE PROVIDED:  "NOTHING
HEREIN CONTAINED SHALL BE CONSTRUED OR TAKEN TO ADMIT ANY OTHER OR
GREATER TITLE OR INTEREST IN THE LANDS EMBRACED WITHIN THE TERRITORIES
DESCRIBED IN SAID TREATY IN SAID TRIBES OR BANDS OF INDIANS THAN
EXISTED IN THEM UPON THE ACQUISITION OF SAID TERRITORIES FROM MEXICO BY
THE LAWS THEREOF."  THAT SHOULD PUT BEYOND DISPUTE THAT THE SENATE
UNDERSTOOD THE TREATY TO ACCORD RECOGNITION OF THE TITLE WHICH THE
INDIANS HAD UNDER MEXICAN LAW.  TO SAY IT GIVES NO RECOGNITION TO ANY
CLAIM IS TO ERASE THIS PROVISION FROM THE TREATY. 

BUT IF THERE IS STILL ANY DOUBT AS TO THE MEANING OF THE TREATY IT
SHOULD BE WHOLLY REMOVED BY ANOTHER OF ITS PROVISIONS.  THE TREATY
STATED THAT "THE COUNTRY CLAIMED BY POKATELLO, FOR HIMSELF AND HIS
PEOPLE, IS BOUNDED ON THE WEST BY RAFT RIVER AND ON THE EAST BY THE
PORTENEUF MOUNTAINS." 

THAT IS NOW BRUSHED ASIDE AS IRRELEVANT.  BUT WE SHOULD REMEMBER THAT
NO COUNSEL SAT AT THE ELBOW OF POKATELLO WHEN THE TREATY WAS DRAFTED. 
IT WAS WRITTEN IN A LANGUAGE FOREIGN TO HIM.  HE WAS NOT A
CONVEYANCER.  HE WAS NOT COGNIZANT OF DISTINCTIONS IN TITLE.  HE
NEITHER HAD NOR GAVE DEEDS TO HIS LAND.  THERE WAS NO RECORDING
OFFICE.  BUT HE KNEW THE LAND WHERE HE LIVED AND FOR WHICH HE WOULD
FIGHT.  IF THE STANDARDS OF THE FRONTIER ARE TO GOVERN, HIS ASSERTION
OF OWNERSHIP AND ITS RECOGNITION BY THE UNITED STATES COULD HARDLY HAVE
BEEN PLAINER. 

WE SHOULD REMEMBER THE ADMONITION IN JONES V. MEEHAN, 175 U.S. 1, 11,
THAT IN CONSTRUING A TREATY BETWEEN THE UNITED STATES AND AN INDIAN
TRIBE IT MUST ALWAYS BE BORNE IN MIND "THAT THE NEGOTIATIONS FOR THE
TREATY ARE CONDUCTED, ON THE PART OF THE UNITED STATES, AN ENLIGHTENED
AND POWERFUL NATION, BY REPRESENTATIVES SKILLED IN DIPLOMACY, MASTERS
OF A WRITTEN LANGUAGE, UNDERSTANDING THE MODES AND FORMS OF CREATING
THE VARIOUS TECHNICAL ESTATES KNOWN TO THEIR LAW, AND ASSISTED BY AN
INTERPRETER EMPLOYED BY THEMSELVES; THAT THE TREATY IS DRAWN UP BY THEM
AND IN THEIR OWN LANGUAGE; THAT THE INDIANS, ON THE OTHER HAND, ARE A
WEAK AND DEPENDENT PEOPLE, WHO HAVE NO WRITTEN LANGUAGE AND ARE WHOLLY
UNFAMILIAR WITH ALL THE FORMS OF LEGAL EXPRESSION, AND WHOSE ONLY
KNOWLEDGE OF THE TERMS IN WHICH THE TREATY IS FRAMED IS THAT IMPARTED
TO THEM BY THE INTERPRETER EMPLOYED BY THE UNITED STATES; AND THAT THE
TREATY MUST THEREFORE BE CONSTRUED, NOT ACCORDING TO THE TECHNICAL
MEANING OF ITS WORDS TO LEARNED LAWYERS, BUT IN THE SENSE IN WHICH THEY
WOULD NATURALLY BE UNDERSTOOD BY THE INDIANS." 

WHEN THE STANDARD IS NOT OBSERVED, WHAT THESE INDIANS DID NOT LOSE TO
THE RAILROADS AND TO THE LAND COMPANIES THEY LOSE IN THE FINE WEB OF
LEGAL NICETIES. 

AS STATED BY THE ATTORNEYS GENERAL OF IDAHO AND UTAH WHO APPEAR HERE
AS AMICI CURIAE:  "THE RESULT IS THAT A PEACEFUL AND FRIENDLY PEOPLE,
LULLED INTO A SENSE OF SECURITY BY THE PROFFERS OF THE UNITED STATES OF
PEACE AND AMITY, HAVE BEEN REDUCED FROM A NATION ABLE TO WREST THEIR
LIVING FROM THEIR PRIMITIVE ANCESTRAL HOME TO A NONDESCRIPT, HOMELESS,
AND POVERTY-STRICKEN AGGREGATION OF BANDS OF INDIANS, WITHOUT THE MEANS
TO COMPETE IN THE MODERN CIVILIZATION WHICH HAD DISSEISED THEM.  UNTIL
THE TREATY WITH PETITIONERS, PETITIONERS WERE SO STRONG AND FORMIDABLE
THAT THE TROUBLE AND EXPENSE OF TAKING THEIR LANDS BY WAR - LEAVING OUT
OF ACCOUNT THE DISHONOR THAT WOULD HAVE BEEN INVOLVED IN PROCEEDING
AGAINST A NATION WHICH HAD GIVEN NO CAUSE FOR WAR - WOULD HAVE FAR
OUTWEIGHED THE EXPENSE OF SETTLING WITH THEM FOR THEIR LANDS AT
WHATEVER THE COST IN MONEY.  BUT THE UNITED STATES DID NEITHER. 
CONGRESS FELT IT COULD NOT AT THAT TIME AFFORD TO EXTINGUISH
PETITIONERS' TITLE BY PURCHASE.  CONSEQUENTLY, FOR A MEAGER
CONSIDERATION, THE PETITIONERS GRANTED RESPONDENT CERTAIN VALUABLE
RIGHTS IN THOSE LANDS.  FOR RESPONDENT, UNDER THESE CIRCUMSTANCES, TO
ATTEMPT TO DENY PETITIONERS' TITLE IS UNWORTHY OF OUR COUNTRY.  THE
FAITH OF THIS NATION HAVING BEEN PLEDGED IN THE TREATIES, THE HONOR OF
THE NATION DEMANDS, AND THE JURISDICTIONAL ACT REQUIRES, THAT THESE
LONG-UNSETTLED GRIEVANCES BE SETTLED BY THIS COURT IN SIMPLE JUSTICE TO
A DOWNTRODDEN PEOPLE." 

THE STORY HAS BEEN TOLD BEFORE.  CHESTER FEE, CHIEF JOSEPH (1936);
HOWARD FAST, THE LAST FRONTIER (1944). 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 

MR. JUSTICE MURPHY, DISSENTING. 

IT IS A WELL-SETTLED RULE THAT IN THE INTERPRETATION OF INDIAN
TREATIES ALL AMBIGUITIES ARE TO BE RESOLVED IN FAVOR OF THE INDIANS. 
WORCESTER V. GEORGIA, 6 PET. 515, 582; WINTERS V. UNITED STATES, 207
U.S. 564, 576; CARPENTER V. SHAW, 280 U.S. 363, 367.  WHILE THIS
PRINCIPLE DOES NOT JUSTIFY IGNORING THE PLAIN MEANING OF WORDS IN ORDER
TO PREVENT WHAT APPEARS TO BE AN INJUSTICE TO THE INDIANS, IT DOES MEAN
THAT A COURT IS BOUND TO GIVE TO DOUBTFUL EXPRESSIONS THAT MEANING
LEAST PREJUDICIAL TO THE INTERESTS OF THE INDIANS, GIVING FULL WEIGHT
TO THE CONDITIONS UNDER WHICH THE TREATY WAS DRAWN.  THE APPLICATION OF
THIS PRINCIPLE TO THE FACTS OF THIS CASE MAKES MANIFEST THE ERROR OF
THE COURT OF CLAIMS. 

THE ISSUE HERE CENTERS ABOUT THE MEANING OF THE BOX ELDER TREATY OF
JULY 30, 1863, 13 STAT. 663, ENTERED INTO BETWEEN THE UNITED STATES AND
THE NORTHWESTERN BANDS OF SHOSHONE INDIANS.  DID THE UNITED STATES BY
THAT TREATY ACKNOWLEDGE OR RECOGNIZE THE CLAIM OF THE INDIANS TO THE
LAND IN QUESTION SO AS TO MAKE IT A CLAIM "ARISING UNDER OR GROWING OUT
OF" THE TREATY FOR PURPOSES OF THE JURISDICTIONAL ACT OF FEBRUARY 28,
1929, 45 STAT. 1407?  AN AFFIRMATIVE ANSWER TO THIS QUESTION IS
DICTATED BY BOTH THE TREATY PROVISIONS AND THE CIRCUMSTANCES
SURROUNDING THE MAKING OF THE TREATY.    1.  EVENTS PRECEDING THE BOX
ELDER TREATY.  THE GREAT WESTWARD SURGE OF THE WHITE MEN FROM 1849 TO
1863 THROUGH THE COUNTRY CLAIMED BY THE VARIOUS SHOSHONE TRIBES AROUSED
RESENTMENT AND HOSTILITY AMONG THE INDIANS.  GAME WAS DRIVEN AWAY AND
VEGETATION DESTROYED, FORCING THE INDIANS TO STEAL OR STARVE. 
TELEGRAPH AND OVERLAND DAILY MAIL LINES WERE ESTABLISHED THROUGH THEIR
TERRITORY IN COMPLETE DISREGARD OF ANY RIGHTS THEY MIGHT HAVE.  THE
GOVERNMENT DID LITTLE OR NOTHING TO SUPPLY THE INDIANS WITH FOOD OR
SUPPLIES DURING THIS PERIOD.  WHITE EMIGRANTS AND THE GOVERNMENT WERE
CAUSED CONSIDERABLE TROUBLE BY DEPREDATIONS AND WARLIKE ACTS OF THESE
OPPRESSED INDIANS.  SOME AGREEMENT WHEREBY WHITE EMIGRANTS COULD TRAVEL
AND THE GOVERNMENT COULD MAINTAIN A COMMUNICATION SYSTEM THROUGH THE
SHOSHONE AREA WAS IMPERATIVE. 

LITTLE WAS DONE BEFORE 1861, WHEN THE COMMISSIONER OF INDIAN AFFAIRS
RECOMMENDED THAT A TREATY BE NEGOTIATED WITH THE SHOSHONE INDIANS WHICH
WOULD GRANT THEM ANNUITIES "IN CONSIDERATION OF A RIGHT-OF-WAY ACROSS
THEIR COUNTRY."  IN THE SAME YEAR THE SUPERINTENDENT OF INDIAN AFFAIRS
FOR THE UTAH TERRITORY ALSO RECOMMENDED THE NEGOTIATION OF A TREATY,
STATING THAT THE SHOSHONES "EXPRESS THEIR WILLINGNESS TO CEDE TO THE
UNITED STATES ALL THE LANDS THEY CLAIM IN THIS TERRITORY," WITH CERTAIN
RESERVATIONS. 

IN FEBRUARY, 1862, THE SECRETARY OF THE INTERIOR IN A LETTER TO THE
CHAIRMAN OF THE HOUSE COMMITTEE ON INDIAN AFFAIRS ACKNOWLEDGED THAT THE
LANDS WERE "OWNED BY THE INDIANS" BUT REPORTED THAT LITTLE WAS FIT FOR
CULTIVATION AND WOULD PROBABLY NOT BE "REQUIRED FOR SETTLEMENT FOR MANY
YEARS."  HE THUS DID NOT RECOMMEND THE PURCHASE OF THE LAND.  IN LIGHT
OF THIS LETTER, THE HOUSE COMMITTEE ON INDIAN AFFAIRS RECOMMENDED TO
CONGRESS THAT IT AUTHORIZE THE NEGOTIATION OF A TREATY FOR PASSAGEWAYS
OVER THE LAND CLAIMED BY THE SHOSHONES AND NOT TRY TO PURCHASE THE
LAND. 

ACCORDINGLY ON JULY 5, 1862, CONGRESS AUTHORIZED THE APPOINTMENT OF A
TREATY COMMISSION TO NEGOTIATE SUCH A TREATY.  12 STAT. 512, 529.  ON
JULY 22 THE COMMISSIONER OF INDIAN AFFAIRS INSTRUCTED THE TREATY
COMMISSIONERS WHO HAD BEEN APPOINTED THAT THE GOVERNMENT DID NOT HAVE
SUFFICIENT KNOWLEDGE TO STATE DEFINITELY THE BOUNDARIES OF THE COUNTRY
INHABITED AND CLAIMED BY THE SHOSHONES BUT THAT IT WAS UNDERSTOOD THAT
THEY INHABITED "THE COUNTRY IN THE NORTHERN PART OF UTAH AND EASTERN
PORTION OF WASHINGTON TERRITORIES, THROUGH WHICH LIES THE ROUTE OF THE
OVERLAND MAIL, AND THE EMIGRANT ROUTE THROUGH UTAH AND INTO WASHINGTON
TERRITORY AND IT IS MAINLY TO SECURE THE SAFETY OF THE TRAVEL ALONG
THESE ROUTES THAT A TREATY IS DESIRABLE."  HE FURTHER TOLD THEM THAT IT
WAS NOT EXPECTED THAT THE TREATY WOULD BE NEGOTIATED "WITH A VIEW TO
THE EXTINGUISHMENT OF THE INDIAN TITLE TO THE LAND."  THEY WERE TOLD
THAT THE UNITED STATES' ASSURANCES OF AMICABLE RELATIONS AND THE
CONTEMPLATED PAYMENT OF $20,000 IN ANNUITIES SHOULD ENABLE THEM TO
PROCURE FROM THE INDIANS AN AGREEMENT FOR THE SECURITY OF THE OVERLAND
MAIL AND EMIGRANT ROUTES, IN ADDITION TO A "DEFINITE ACKNOWLEDGMENT AS
WELL OF THE BOUNDARIES OF THE ENTIRE COUNTRY THEY CLAIM, AS OF THE
LIMITS WITHIN WHICH THEY WILL CONFINE THEMSELVES." 

THUS PRIOR TO THE ACTUAL NEGOTIATION OF THE TREATY, THE UNITED STATES
RECOGNIZED THAT THE SHOSHONE TRIBES CLAIMED AND INHABITED CERTAIN
TERRITORY, THE EXACT BOUNDARIES OF WHICH WERE UNCERTAIN.  THE FACT THAT
THE UNITED STATES THOUGHT IT NECESSARY TO MAKE A TREATY CONCERNING
RIGHTS OF WAY AND THE FACT THAT THE UNITED STATES EXPRESSLY DID NOT
DESIRE TO NEGOTIATE "WITH A VIEW TO THE EXTINGUISHMENT OF THE INDIAN
TITLE TO THE LAND" STRONGLY INDICATE THAT THE UNITED STATES CONSIDERED
THE INDIANS AS THE OWNERS OF THIS ILL-DEFINED AREA OF LAND.  THE
SECURING OF RIGHTS OF WAY, WHICH WAS THE MAIN PURPOSE OF THE TREATY,
WOULD HAVE BEEN A NEEDLESS FORMALITY HAD TITLE TO THE UNDERLYING LAND
BEEN THOUGHT TO BE IN THE NAME OF THE UNITED STATES.  AND THE SECURING
OF AN ACKNOWLEDGMENT OF THE BOUNDARIES OF THE LAND CLAIMED BY THE
SHOSHONES, WHICH WAS A SUBSIDIARY PURPOSE OF THE TREATY, WOULD LIKEWISE
HAVE BEEN UNNECESSARY IF THE UNITED STATES CONSIDERED ITSELF THE OWNER
OF ALL THE LAND.  THE STAGE WAS THUS SET FOR A DELINEATION OF THE
SHOSHONE LAND TO WHICH THE UNITED STATES WAS PREPARED TO ACKNOWLEDGE
INDIAN TITLE. 

2.  THE NEGOTIATIONS FOR AND THE CONTENTS OF THE BOX ELDER TREATY. 
THE TREATY COMMISSIONERS FOUND IT IMPOSSIBLE TO ASSEMBLE ALL THE
SHOSHONE TRIBES AT ONE TIME.  THEY THUS NEGOTIATED FIVE SEPARATE
TREATIES WITH THE FIVE SHOSHONE NATIONS.  THEY MET FIRST WITH THE
EASTERN SHOSHONES AT FT. BRIDGER, WYOMING, WHERE THEY NEGOTIATED THE
TREATY OF JULY 2, 1863, 18 STAT. 685.  THIS TREATY PLEDGED PEACE
BETWEEN THE UNITED STATES AND THE INDIANS AND PLEDGED THE UNITED STATES
TO PAY ANNUAL ANNUITIES.  THE SHOSHONES IN TURN AGREED THAT ROUTES OF
TRAVEL THROUGH "SHOSHONE COUNTRY" SHOULD REMAIN FOREVER FREE AND SAFE
FOR THE USE OF THE UNITED STATES AND ITS EMIGRANTS AND TRAVELLERS. 
THEY ALSO AGREED THAT THE UNITED STATES MIGHT ESTABLISH MILITARY
AGRICULTURAL ESTABLISHMENTS AND MILITARY POSTS ALONG SAID ROUTES,
MAINTAIN FERRIES OVER RIVERS, ERECT HOUSES AND SETTLEMENTS WHEREVER
NECESSARY FOR THE COMFORT OF THE TRAVELLERS, OPERATE AND MAINTAIN
EXISTING TELEGRAPH AND OVERLAND STAGE COACH LINES, AND OPERATE A
TRANSCONTINENTAL RAILWAY "THROUGH ANY PORTION OF THE COUNTRY CLAIMED
BY" THE SHOSHONES.  THE TREATY FURTHER SET FORTH A DESCRIPTION OF "THE
SHOSHONEE COUNTRY, AS DEFINED AND DESCRIBED BY SAID NATION," LEAVING
THE WESTERN BOUNDARY UNDEFINED SINCE THERE WERE NO SHOSHONES PRESENT
FROM THAT AREA. 

ON JULY 30, 1863, THE COMMISSIONERS MET WITH THE NORTHWESTERN BANDS
OF SHOSHONE INDIANS AT BOX ELDER, UTAH.  THE RESULTING TREATY ALSO
STIPULATED FOR PEACE AND FRIENDSHIP AND THEN INCORPORATED BY REFERENCE
ALL THE PERTINENT PROVISIONS OF THE FT. BRIDGER TREATY.  THE
NORTHWESTERN BANDS THUS GRANTED THE SAME RIGHTS OF WAY AND EASEMENTS
OVER THEIR LANDS AS THE EASTERN BANDS HAD GRANTED.  THE BOX ELDER
TREATY DID NOT PURPORT TO DESCRIBE ALL THE LAND OF THE NORTHWESTERN
BANDS, BUT ONLY THE "COUNTRY CLAIMED BY POKATELLO (ONE OF THEIR CHIEFS)
FOR HIMSELF AND HIS PEOPLE."  THIS AREA WAS DESCRIBED AS BEING BOUNDED
ON THE WEST BY THE RAFT RIVER AND ON THE EAST BY THE PORTENEUF
MOUNTAINS. 

SIMILAR TREATIES WERE ENTERED INTO WITH THE WESTERN SHOSHONES ON
OCTOBER 1, 1863, THE SHOSHONEE-GOSHIP BANDS ON OCTOBER 12, 1863, AND
THE MIXED BANDS OF SHOSHONE AND BANNOCK INDIANS ON OCTOBER 14, 1863. 
ALL THESE TREATIES WERE SUBSTANTIALLY THE SAME INSOFAR AS THE GRANTING
OF RIGHTS OF WAY AND EASEMENTS WERE CONCERNED.  AND EACH OF THEM SET
FORTH "THE BOUNDARIES OF THE COUNTRY CLAIMED AND OCCUPIED BY SAID
BANDS." 

THUS BY THESE FIVE TREATIES THE UNITED STATES SECURED (A) FREEDOM OF
TRAVEL AND COMMUNICATION THROUGH THE SHOSHONE COUNTRY AND (B) DEFINITE
ACKNOWLEDGMENT OF THE AREAS CLAIMED BY THE SHOSHONES.  WHILE THE BOX
ELDER TREATY DID NOT DEFINE THE BOUNDARIES OF THE NORTHWESTERN SHOSHONE
LANDS COMPLETELY, REFERENCE TO AND COLLOCATION OF THE TERRITORIAL
DESCRIPTIONS IN THE OTHER FOUR TREATIES, AS WELL AS REFERENCE TO THE
MAP PREPARED AT THE TIME BY THE CHAIRMAN OF THE TREATY COMMISSION,
SUPPLY THE TERRITORIAL BOUNDARIES OF THESE LANDS. 

THE VERY ACCEPTANCE IN THE BOX ELDER TREATY OF THESE RIGHTS OF WAY
AND EASEMENTS CONSTITUTED A RECOGNITION AND ACKNOWLEDGMENT BY THE
UNITED STATES THAT THE NORTHWESTERN BANDS HAD TITLE TO THE LAND
CLAIMED.  WORCESTER V. GEORGIA, 6 PET. 515, 556; FORT BERTHOLD INDIANS
V. UNITED STATES, 71 CT. CLS. 308, 332.  SUCH RECOGNITION AND
ACKNOWLEDGMENT NEED NOT BE INDICATED BY ANY PARTICULAR WORD OR PHRASE. 
THEY MAY BE IMPLIED AS WELL AS EXPRESSED.  THAT IS THE CASE HERE.  THE
BOX ELDER TREATY AND THE FOUR OTHER TREATIES WOULD HAVE BEEN
MEANINGLESS HAD THE UNITED STATES NOT THEREBY RECOGNIZED THE INDIAN
TITLE TO THE LAND CLAIMED.  WITHOUT SUCH TITLE, THE INDIANS WOULD HAVE
LACKED POWER TO BARGAIN CONCERNING THE RIGHT TO TRAVEL AND COMMUNICATE
OVER THE LAND.  RECOGNITION OF THIS POWER TO BARGAIN AND ACCEPTANCE OF
THE FRUITS OF THAT BARGAINING IMPLIED RECOGNITION OF THE UNDERLYING
INDIAN TITLE TO THE LAND.  OTHERWISE THERE WOULD HAVE BEEN NO REASON
FOR THE UNITED STATES BOTHERING TO NEGOTIATE.  UNILATERAL ASSERTION OF
RIGHTS WOULD HAVE BEEN RESORTED TO HAD THE UNITED STATES NOT RECOGNIZED
INDIAN TITLE TO THESE LANDS.  THIS IS TRUE WHETHER THE INDIANS HELD
TITLE BASED ON ABORIGINAL POSSESSION OR WHETHER THEY HELD LANDS
SPECIFICALLY SET ASIDE FOR THEM.  IT IS LIKEWISE IMMATERIAL THAT THE
MAIN PURPOSE OF THE TREATIES WAS TO SECURE RIGHTS IN THE LAND RATHER
THAN TO ACKNOWLEDGE OR SECURE TITLE.  THE SECURING OF THOSE RIGHTS
NECESSARILY PRESUPPOSES INDIAN TITLE AND NECESSARILY RECOGNIZES SUCH
TITLE. 

THUS BY ITS ACTION IN NEGOTIATING FOR AND SECURING RIGHTS OF PASSAGE
AND COMMUNICATION, THE UNITED STATES INDICATED ITS RECOGNITION AND
ACKNOWLEDGMENT OF INDIAN TITLE TO THE LAND.  THE DESCRIPTIONS OF THE
LANDS CLAIMED BY THE VARIOUS TRIBES WERE INSERTED MERELY TO GIVE THE
UNITED STATES KNOWLEDGE OF THE PRECISE BOUNDARIES TO THE LAND HELD BY
THE INDIANS.  THE FACT THAT THESE TREATIES AND THE BOX ELDER TREATY IN
PARTICULAR SPEAK IN TERMS OF LAND "CLAIMED" BY THE INDIANS DOES NOT
NEGATE RECOGNITION OF TITLE TO THE LAND SO CLAIMED.  IN THE CONTEXT OF
THESE TREATIES AND IN LIGHT OF THE IGNORANCE OF THE INDIANS OF LEGAL
NICETIES, THE TERM "CLAIM" NEED NOT BE TAKEN TO MEAN BARE ASSERTION TO
TITLE.  IT MUST BE REMEMBERED THAT THESE INDIANS HELD TITLE BY
ABORIGINAL POSSESSION AND THAT THE UNITED STATES WAS IN NO POSITION TO
BARGAIN AS TO THE SCOPE OF THE LAND SO HELD.  A BONA FIDE INDIAN CLAIM
OF THIS TYPE IS SYNONYMOUS WITH OWNERSHIP UNLESS IT CONFLICTS WITH SOME
OTHER OWNERSHIP OR UNLESS SUCH AN INDIAN TITLE IS UNRECOGNIZED IN LAW. 
HERE, HOWEVER, THE UNITED STATES DID RECOGNIZE THIS TYPE OF OWNERSHIP
AND WAS ANXIOUS MERELY TO ASCERTAIN THE SCOPE OF THE LAND SO CLAIMED OR
OWNED.  THE PLACING OF THESE DESCRIPTIONS IN A BILATERAL TREATY IS AT
LEAST CONSISTENT WITH THE CONCLUSION THAT THE UNITED STATES RECOGNIZED
TITLE TO THE EXTENT OF THE LANDS CLAIMED.  AND UNDER THE RULE THAT
AMBIGUITIES ARE TO BE RESOLVED IN FAVOR OF THE INDIANS, WE MUST ADOPT
THAT CONCLUSION. 

3.  EVENTS SUBSEQUENT TO THE BOX ELDER TREATY.  ANY DOUBT AS TO
WHETHER THE UNITED STATES BY THESE TREATIES RECOGNIZED AND ACKNOWLEDGED
INDIAN TITLE TO THE LAND CLAIMED IS REMOVED BY ACTIONS AND STATEMENTS
OF THE GOVERNMENT SUBSEQUENT TO THE MAKING OF THESE TREATIES. 

THE SENATE RATIFIED EACH OF THE TREATIES.  TO FOUR OF THEM, INCLUDING
THE BOX ELDER TREATY, THE SENATE ADDED AN AMENDMENT PROVIDING THAT
NOTHING IN THE TREATY SHOULD BE CONSTRUED TO ADMIT "ANY OTHER OR
GREATER TITLE OR INTEREST IN THE LANDS EMBRACED WITHIN THE TERRITORIES
DESCRIBED IN SAID TREATY IN SAID TRIBES OR BANDS OF INDIANS THAN
EXISTED IN THEM UPON THE ACQUISITION OF SAID TERRITORIES FROM MEXICO BY
THE LAWS THEREOF."  SEE 13 STAT. 664.  WHATEVER MAY HAVE BEEN THE
COMPLEXITIES OF THE MEXICAN CESSION TITLE SITUATION AS DESCRIBED IN THE
OPINION OF THIS COURT, THE SENATE BY THIS AMENDMENT CLEARLY INDICATED
THAT IT UNDERSTOOD EACH TREATY TO CONSTITUTE A RECOGNITION OF INDIAN
TITLE TO THE LAND CLAIMED, AT LEAST AS TO LANDS OUTSIDE THE MEXICAN
CESSION.  HAD THE SENATE BEEN UNDER THE IMPRESSION THAT NO TITLE RIGHTS
WERE INVOLVED IN THE TREATIES IT WOULD HAVE BEEN MEANINGLESS TO ADD
THIS AMENDMENT.  RESOLVING ANY DOUBTS ON THIS SCORE IN FAVOR OF THE
INDIANS COMPELS US TO INTERPRET THIS AMENDMENT AS ANOTHER RECOGNITION
OF INDIAN TITLE. 

IN 1863 THE COMMISSIONER OF INDIAN AFFAIRS RECOMMENDED THAT FURTHER
TREATIES WITH THE SHOSHONES BE NEGOTIATED TO EXTINGUISH THEIR TITLE TO
THE SOIL.  AND CONGRESS IN 1865 AUTHORIZED THE PRESIDENT TO ENTER INTO
TREATIES WITH INDIANS IN THE UTAH TERRITORY FOR THE SURRENDER TO THE
UNITED STATES OF THEIR POSSESSORY RIGHT TO ALL AGRICULTURAL AND MINERAL
LAND AND FOR THEIR SEGREGATION ON RESERVATIONS.  13 STAT. 432. 
ACCORDINGLY A TREATY WAS MADE WITH THE EASTERN SHOSHONES IN 1868
WHEREBY THEY GAVE UP THE TERRITORY CLAIMED BY THEM IN THE FT. BRIDGER
TREATY IN EXCHANGE FOR OTHER LANDS.  15 STAT. 673.  HERE AGAIN IS CLEAR
PROOF THAT THE UNITED STATES CONSIDERED TITLE TO THE LAND TO BELONG TO
THE INDIANS, MAKING EVEN MORE COMPELLING THE CONCLUSION THAT THE 1863
TREATIES CONSTITUTED A NECESSARY RECOGNITION OF THAT TITLE. 

AND AS LATE AS 1934 THE SECRETARY OF THE INTERIOR ADMITTED THAT THE
TERRITORY OF THE SHOSHONES "WAS RECOGNIZED BY THE UNITED STATES AS
BELONGING TO THE VARIOUS BANDS OF SHOSHONE INDIANS" BY THE 1863
TREATIES AND THAT THE "GOVERNMENT RECOGNIZED ALL THE LAND AS BELONGING
TO THE NORTHWESTERN BANDS OF SHOSHONES."  SUCH STATEMENTS ARE MORE THAN
JUSTIFIED BY THE HISTORY AND CONTENTS OF THE TREATIES. 

ONE FINAL MATTER REMAINS.  IT IS SAID THAT ANY MONEY RECOVERED BY THE
INDIANS IN THIS SUIT WOULD HAVE TO BE DEPOSITED IN THE TREASURY OF THE
UNITED STATES, SUBJECT TO APPROPRIATION BY CONGRESS FOR THEIR BENEFIT,
AND THAT THE ONLY POSSIBLE CASH PAYMENT INVOLVES ATTORNEY FEES.  THAT
MAY BE TRUE.  BUT IT DOES NOT JUSTIFY IGNORING THE RIGHTS OF THE
SHOSHONE INDIANS RECOGNIZED UNDER SOLEMN TREATIES ENTERED INTO WITH THE
UNITED STATES.  IT DOES NOT COMMAND US TO OVERTHROW THE MORAL
OBLIGATION OF THE UNITED STATES TO FULFILL ITS TREATY OBLIGATIONS.  AND
IT DOES NOT WARRANT THE APPLICATION OF NARROW PRINCIPLES OF
CONSTRUCTION TO THE INJURY OF THE INDIANS' INTERESTS.  IF CONGRESS
DESIRES TO PLACE IN THE TREASURY ANY MONEY THAT MIGHT BE RECOVERED BY
THE INDIANS IN THIS SUIT THAT IS THE BUSINESS OF CONGRESS, NOT OURS. 
OUR FUNCTION HERE IS AT AN END WHEN WE HAVE DETERMINED IF THE
NORTHWESTERN BANDS HAVE ANY CLAIM "ARISING UNDER OR GROWING OUT OF" THE
BOX ELDER TREATY.  BECAUSE I BELIEVE THEY HAVE SUCH A CLAIM I WOULD
REVERSE THE JUDGMENT BELOW.    MR. JUSTICE FRANKFURTER AND MR. JUSTICE
DOUGLAS CONCUR IN THIS OPINION. 
..END :






ROBINSON V. UNITED STATES, 324 U.S. 282 


NO. 514.  ARGUED FEBRUARY 8, 1945.  - DECIDED MARCH 5, 1945.  - 144 F.2D
392, AFFIRMED. 


THE FEDERAL KIDNAPPING ACT AUTHORIZES A SENTENCE OF DEATH WHEN
RECOMMENDED BY THE JURY, "PROVIDED THAT THE DEATH SENTENCE SHALL NOT BE
IMPOSED BY THE COURT IF, PRIOR TO ITS IMPOSITION, THE KIDNAPPED PERSON
HAS BEEN LIBERATED UNHARMED."  HELD: 

1.  THE FACT THAT THE INJURIES INFLICTED ON THE KIDNAPPED PERSON WERE
NOT PERMANENT, OR WERE HEALED BEFORE IMPOSITION OF SENTENCE, DID NOT
BAR THE DEATH PENALTY.  P. 285. 

2.  IN THE CASE OF A DEFENDANT WHO TWICE VIOLENTLY STRUCK HIS VICTIM
ON THE HEAD WITH AN IRON BAR, INFLICTING INJURIES FROM WHICH SHE WAS
STILL SUFFERING WHEN LIBERATED, AND UPON WHOM THE DEATH SENTENCE WAS
IMPOSED, THE PROVISO WAS NOT INVALID FOR UNCERTAINTY IN THE MEANING OF
THE WORDS "UNHARMED" AND "LIBERATED UNHARMED."  P. 286. 

ROBINSON V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 323 U.S. 808, TO REVIEW THE AFFIRMANCE OF A CONVICTION
AND SENTENCE OF DEATH FOR VIOLATION OF THE FEDERAL KIDNAPPING ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS INDICTED AND CONVICTED IN A DISTRICT COURT FOR
VIOLATING THE FEDERAL KIDNAPPING ACT, 47 STAT. 326, 48 STAT. 781, BY
TRANSPORTING IN INTERSTATE COMMERCE A PERSON WHOM HE HAD KIDNAPPED AND
HELD FOR A REWARD.  THE JURY RECOMMENDED AND THE COURT IMPOSED THE
DEATH PENALTY.  THE CIRCUIT COURT OF APPEALS AFFIRMED, 144 F.2D 392. 
WE GRANTED CERTIORARI LIMITED TO THE SOLE QUESTION OF THE COURT'S
STATUTORY AUTHORITY TO IMPOSE THE DEATH SENTENCE. 

THE ACT AUTHORIZES THE DEATH SENTENCE WHEN RECOMMENDED BY A JURY
"PROVIDED THAT THE SENTENCE OF DEATH SHALL NOT BE IMPOSED BY THE COURT
IF, PRIOR TO ITS IMPOSITION, THE KIDNAPPED PERSON HAS BEEN LIBERATED
UNHARMED."  THE INDICTMENT CHARGED, AND THERE WAS EVIDENCE BEFORE THE
JURY, TO THE EFFECT THAT THE KIDNAPPING VICTIM YIELDED TO CAPTURE ONLY
AFTER THE PETITIONER HAD TWICE VIOLENTLY STRUCK HER ON THE HEAD WITH AN
IRON BAR; THAT WHILE HELD IN CUSTODY HER LIPS WERE ABRASED AND MADE
SWOLLEN BY REPEATED APPLICATIONS OF TAPE ON HER MOUTH; AND THAT WOUNDS
RESULTING FROM THESE ASSAULTS WERE NOT HEALED WHEN SHE WAS LIBERATED
AFTER SIX DAYS' CAPTIVITY.  NO EVIDENCE WAS INTRODUCED, NOR DID THE
INDICTMENT CHARGE, THAT THE INJURIES INFLICTED WERE PERMANENT, OR THAT
THE VICTIM STILL SUFFERED FROM THEM WHEN THE PETITIONER WAS SENTENCED,
NINE YEARS AFTER COMMISSION OF THE OFFENSE.  FN1  THE TRIAL COURT
CHARGED THE JURY THAT IN DETERMINING WHETHER THE VICTIM HAD BEEN
"LIBERATED UNHARMED" THEY WERE LIMITED TO A CONSIDERATION OF HER
CONDITION AT THE TIME SHE WAS LIBERATED, AND THAT THEY WERE NOT
AUTHORIZED TO RECOMMEND THE DEATH PENALTY IF AT THE TIME OF HER
LIBERATION SHE HAD RECOVERED FROM HER INJURIES.  PETITIONER TOOK NO
EXCEPTION TO THE CHARGE, AND ASKED NO OTHER.  ITS CORRECTNESS IS BEFORE
US ONLY TO THE EXTENT THAT WE ARE ASKED TO SAY THAT THE INJURIES
INFLICTED MUST BE PERMANENT OR THEY MUST BE IN EXISTENCE AT THE TIME OF
SENTENCE IN ORDER TO AUTHORIZE THE INFLICTION OF THE DEATH SENTENCE. 

THE SCANT LEGISLATIVE HISTORY OF THE ACT IS OF LITTLE ASSISTANCE TO
US IN INTERPRETING THIS PROVISO.  TWO POSSIBLE REASONS SUGGEST
THEMSELVES, HOWEVER, AS TO THE MOTIVATION OF CONGRESS IN MAKING THE
SEVERITY OF A KIDNAPPER'S PUNISHMENT DEPEND UPON WHETHER HIS VICTIM HAS
BEEN INJURED.  THE FIRST REASON IS THE OLD BELIEF THAT THE SEVERITY OF
THE INJURY SHOULD MEASURE THE RIGOR OF THE PUNISHMENT.  IF THIS BE THE
REASONING IMPLICIT IN THE STATUTE, IT WOULD APPEAR THAT CONGRESS
INTENDED THAT FOR A KIDNAPPER TO OBTAIN THE BENEFIT OF THE PROVISO HE
MUST BOTH LIBERATE AND REFRAIN FROM INJURING HIS VICTIM.  CONGRESS MAY
EQUALLY HAVE INTENDED THIS PROVISION AS A DETERRENT, ON THE THEORY THAT
KIDNAPPERS WOULD BE LESS LIKELY TO INFLICT VIOLENCE UPON THEIR VICTIMS
IF THEY KNEW THAT SUCH ABSTENTION WOULD SAVE THEM FROM THE DEATH
PENALTY.  THIS ASSUMPTION FINDS SOME SLIGHT SUPPORT IN THE LEGISLATIVE
HISTORY,  FN2  IS NOT CONTESTED BY THE GOVERNMENT, HAS BEEN ACCEPTED IN
ONE CASE  FN3  AND IS THE CHIEF PROP FOR THE INTERPRETATION WHICH THE
PETITIONER URGES.  HE ARGUES UPON THIS ASSUMPTION THAT THE WIDER THE
SCOPE OF THE EXEMPTION FROM THE DEATH PENALTY, THE GREATER THE
INDUCEMENT FOR THE KIDNAPPER TO RELEASE THE VICTIM.  TO MAGNIFY THE
INDUCEMENT, WE ARE ASKED TO INTERPRET THE PROVISO AS GRANTING IMMUNITY
FROM THE DEATH SENTENCE TO ANY KIDNAPPER WHO DOES NOT PERMANENTLY
INJURE HIS VICTIM.  WE CANNOT EXPAND THE MEANING OF THE STATUTE ON SUCH
A HYPOTHESIS AND WE TURN TO ITS LANGUAGE. 

WE ACCEPT THE WORD "UNHARMED" APPEARING IN THE PROVISO AS MEANING
UNINJURED.  NEITHER THE WORD "PERMANENT" NOR ANY OTHER WORD SUSCEPTIBLE
OF THAT MEANING WAS USED BY CONGRESS.  THE QUALITY OF THE INJURY TO
WHICH CONGRESS REFERRED IS NOT DEFINED.  IT MAY BE POSSIBLE THAT SOME
TYPES OF INJURY WOULD BE OF SUCH TRIFLING NATURE AS TO BE EXCLUDED FROM
THE CATEGORY OF INJURIES WHICH CONGRESS HAD IN MIND.  WE NEED INDULGE
IN NO SPECULATION IN REGARD TO SUCH A CATEGORY.  THE INJURIES INFLICTED
UPON THIS VICTIM WERE OF SUCH DEGREE THAT THEY CAN NOT BE READ OUT OF
THE ACT'S SCOPE WITHOUT CONTRACTING IT TO THE POINT WHERE ALMOST ALL
INJURIES WOULD BE EXCLUDED.  WE FIND NO JUSTIFICATION WHATEVER FOR
GRAFTING THE WORD "PERMANENT" ONTO THE LANGUAGE WHICH CONGRESS
ADOPTED. 

NOR CAN WE CONSTRUE THE PROVISO AS PRECLUDING THE DEATH SENTENCE
WHERE THE KIDNAPPED PERSON'S INJURIES HAVE BEEN HEALED AT THE TIME
SENTENCE IS IMPOSED.  IT IS NOT TO BE ASSUMED THAT CONGRESS INTENDED A
MATTER OF SUCH GRAVE CONSEQUENCE TO DEFENDANTS AND THE PUBLIC TO TURN
ON THE FORTUITOUS CIRCUMSTANCE OF THE LENGTH OF TIME THAT A CASE IS
PENDING IN THE COURTS.  FAR TOO MANY CONTINGENCIES ARE INVOLVED, FOR
EXAMPLE, THE TIME IT TAKES TO APPREHEND A CRIMINAL, THE CONDITION OF
THE TRIAL DOCKET, AND THE UNCERTAINTIES OF APPEALS.  WE WOULD LONG
HESITATE BEFORE INTERPRETING THE ACT SO AS TO MAKE THE SEVERITY OF
SENTENCE TURN UPON THE DATE SENTENCE IS ULTIMATELY IMPOSED, EVEN IF THE
LANGUAGE OF THE ACT MORE READILY LENT ITSELF TO SUCH A CONSTRUCTION
THAN THIS ONE DOES.  AT THE VERY LEAST, THE PROVISO'S LANGUAGE MUST
MEAN THAT THE KIDNAPPED PERSON SHALL NOT BE SUFFERING FROM INJURIES
WHEN LIBERATED; THE KIDNAPPED PERSON HERE WAS STILL SUFFERING FROM HER
INJURIES WHEN LIBERATED. 

NEVERTHELESS IT IS ARGUED THAT THE DEATH PENALTY PROVISO SHOULD BE
HELD INVALID ON THE GROUND THAT THERE IS UNCERTAINTY AS TO THE PRECISE
MEANING AND SCOPE OF THE WORD "UNHARMED" AND THE PHRASE "LIBERATED
UNHARMED."  IN MOST ENGLISH WORDS AND PHRASES THERE LURK
UNCERTAINTIES.  THE LANGUAGE CONGRESS USED IN THIS ACT PRESENTS NO
EXCEPTION TO THIS GENERAL TRUTH.  ONE THING ABOUT THIS ACT IS NOT
UNCERTAIN, AND THAT IS THE CLEAR PURPOSE OF CONGRESS TO AUTHORIZE
JURIES TO RECOMMEND AND JUDGES TO INFLICT THE DEATH PENALTY, UNDER
CERTAIN CIRCUMSTANCES, FOR KIDNAPPERS WHO HARMED THEIR VICTIMS.  AND WE
CANNOT DOUBT THAT A KIDNAPPER WHO VIOLENTLY STRUCK THE HEAD OF HIS
VICTIM WITH AN IRON BAR, AS EVIDENCE SHOWED THAT THIS PETITIONER DID,
COMES WITHIN THE GROUP CONGRESS HAD IN MIND.  THIS PURPOSE TO AUTHORIZE
A DEATH PENALTY IS CLEAR EVEN THOUGH CONGRESS DID NOT UNMISTAKABLY MARK
SOME BOUNDARY BETWEEN A PIN PRICK AND A PERMANENTLY MUTILATED BODY.  IT
IS FOR CONGRESS AND NOT FOR US TO DECIDE WHETHER IT IS WISE PUBLIC
POLICY TO INFLICT THE DEATH PENALTY AT ALL.  WE DO NOT KNOW WHAT
PROVISION OF LAW, CONSTITUTIONAL OR STATUTORY, GIVES US POWER WHOLLY TO
NULLIFY THE CLEARLY EXPRESSED PURPOSE OF CONGRESS TO AUTHORIZE THE
DEATH PENALTY BECAUSE OF A DOUBT AS TO THE PRECISE CONGRESSIONAL
PURPOSE IN REGARD TO HYPOTHETICAL CASES THAT MAY NEVER ARISE. 

THE TRIAL COURT COMMITTED NO ERROR OF WHICH THIS PETITIONER CAN
COMPLAIN.  AFFIRMED. 

FN1  PETITIONER PLEADED GUILTY TO THE OFFENSE IN 1936.  IN AUGUST,
1943, A DISTRICT COURT HELD HIS PLEA OF GUILTY INVALID ON THE GROUND
THAT HE HAD BEEN DENIED COUNSEL.  THIS APPEAL IS FROM A TRIAL WHICH
TOOK PLACE IN OCTOBER, 1943.  SEE ROBINSON V. JOHNSTON, 118 F.2D 998;
316 U.S. 649; 130 F.2D 202; 50 F.SUPP.  774. 

FN2  WHEN THE ORIGINAL KIDNAPPING BILL WAS PASSED BY THE SENATE IT
DID NOT PROVIDE FOR A DEATH PENALTY.  THE HOUSE COMMITTEE ON THE
JUDICIARY REPORTED IT TO THE FLOOR WITH AN AMENDMENT WHICH AUTHORIZED A
DEATH PENALTY UNLESS THE JURY RECOMMENDED MERCY.  75 CONG. REC., PART
12, 13294.  CONSIDERABLE OPPOSITION TO THE DEATH SENTENCE DEVELOPED IN
THE ENSUING DEBATE.  IB. PP. 13282-13304.  SOME OF THE OPPOSITION
RESTED ON THE ARGUMENT THAT THE DEATH PENALTY WOULD CAUSE KIDNAPPERS TO
KILL THEIR VICTIMS RATHER THAN RELEASE THEM BECAUSE OF FEAR THAT A
LIBERATED VICTIM COULD SEND A KIDNAPPER TO THE ELECTRIC CHAIR.  IB. PP.
13285 ,13304.  THE BILL AS PASSED DID NOT AUTHORIZE THE DEATH PENALTY,
47 STAT. 326.  TWO YEARS LATER AN AMENDMENT WAS PASSED CONTAINING THE
PRESENT PROVISO.  48 STAT. 781.  ITS LEGISLATIVE HISTORY THROWS NO
ADDITIONAL LIGHT ON ITS PURPOSE. 

FN3  UNITED STATES V. PARKER, 19 F.SUPP.  450, 103 F.2D 857. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

THE PENALTY OF DEATH SHOULD NOT BE IMPOSED UPON CONDITIONS DEFINED SO
UNCERTAINLY THAT THEIR IDENTITY CANNOT BE ASCERTAINED OR IS LEFT OPEN
TO GRAVE DOUBT.  IF WORDS EVER NEED TO BE CLEAR, THEY DO WHEN THEY
PERFORM THIS FUNCTION.  I DO NOT KNOW WHAT CONGRESS MEANT WHEN IT
COMMANDED THAT "THE SENTENCE OF DEATH SHALL NOT BE IMPOSED BY THE COURT
IF, PRIOR TO ITS IMPOSITION, THE KIDNAPPED PERSON HAS BEEN LIBERATED
UNHARMED."  48 STAT. 781. 

THE WORDS HAVE THE SOUND OF CERTAINTY WHICH SIMPLE, EVERYDAY LANGUAGE
GIVES FORTH.  THE CERTAINTY IS ONLY ILLUSION.  WHAT DOES "LIBERATED
UNHARMED" MEAN?  THE STATUTE DOES NOT TELL US. NOR DOES THE LEGISLATIVE
HISTORY.  FN1  NEITHER DOES THE COURT'S OPINION.  IT RATHER
DEMONSTRATES THE STATUTE'S AMBIGUITY.  IT DOES NOT SAY WHAT CONGRESS
MEANT.  IT SAYS ONLY THAT CONGRESS MEANT ONE OF TWO THINGS, AND EITHER
WOULD COVER THIS CASE.  FN2  A THIRD POSSIBLE CONSTRUCTION, PUT FORWARD
BY PETITIONER, IS REJECTED.  THE STATUTE, IT IS HELD, DOES NOT MEAN
THAT THE DEATH PENALTY CAN BE IMPOSED ONLY WHEN THE INJURIES INFLICTED
ARE PERMANENT OR, PRESUMABLY, ONLY WHEN THEY REMAIN AT THE TIME OF
SENTENCE, THOUGH NOT PERMANENT.  THE COURT DOES NOT SAY WHAT
"LIBERATED" MEANS.  NOR DOES IT DEFINE "UNHARMED," EXCEPT THAT IT
EXCLUDES THE INJURY INFLICTED IN THIS CASE. 

WHAT ACT IS POINTED TO BY "LIBERATED"?  DOES IT REFER ONLY TO RELEASE
BY THE KIDNAPPER OR DOES IT INCLUDE A CASE OF RESCUE OVERCOMING HIS
WILL AND PURPOSE?  DOES IT COVER HIS ABANDONMENT OF THE VICTIM IN
FLIGHT, LEAVING HIM PERHAPS GAGGED AND BOUND IN SOME LONELY SPOT OR
CELL, NOT FREE BUT NO LONGER IN THE KIDNAPPER'S POWER?  OR MUST HE,
BEFORE THE PRESSURES BECOME TOO GREAT, CHANGE HIS MIND, EXERCISE
DISCRETION AND SET THE VICTIM FREE BEFORE HE IS FORCED TO DO SO? 

SIMILARLY, WHAT IS "UNHARMED"?  A SCRATCH, A CUT, ABRASIONS LEFT BY
REMOVAL OF TAPE OR ROPE, BRUISES, NERVOUS SHOCK, DISTURBANCE OF
DIGESTION, ALL OF A KIND WHICH HEALS OR PASSES BEFORE "LIBERATION"
OCCURS?  FEW KIDNAPPINGS TAKE PLACE WITHOUT HARM OF SOME KIND TO THE
VICTIM.  THEY MAY BE EXECUTED BY FORCE OR BY MERE THREATS.  ONE
PRODUCES TRAUMATIC INJURY, FROM MINOR ABRASION TO DEATH, THE OTHER
NERVOUS OR MENTAL SHOCK OF MOMENTARY OR LIFETIME DURATION.  HOW MUCH
INJURY, AND WHAT KIND, DID CONGRESS HAVE IN MIND? 

IS THE DEATH PENALTY TO BE IMPOSED FOR THE IDENTICAL CUT OR ABRASION,
WHETHER MINOR OR SERIOUS, INFLICTED DURING THE ACT OF TAKING THE
VICTIM, MERELY BECAUSE IN ONE CASE THE KIDNAPPER RELEASES OR ABANDONS
HIM QUICKLY, PERHAPS BECAUSE FORCED TO DO SO, BUT FORBIDDEN IN ANOTHER
BECAUSE HE HOLDS THE VICTIM UNTIL THE INJURY HEALS?  IS REWARD THUS TO
BE GIVEN FOR PROLONGING THE AGONY? 

IS THE JURY TO RANGE THROUGHOUT THE CATEGORY OF HUMAN ILLS, NOT ONLY
TO FIND THAT INJURY HAS BEEN INFLICTED BUT TO EVALUATE WHETHER THOSE
ILLS ARE "INJURIES" WITHIN THE MEANING OF THE STATUTE?  OR IS THIS A
QUESTION OF LAW TO BE DETERMINED BY THE JUDGE UPON SOME VAGUE CRITERION
OF "TRIFLING NATURE" SUCH AS THE OPINION APPEARS TO SUGGEST?  WHETHER
CONGRESS MEANT ALL INJURIES, SLIGHT, SUBSTANTIAL, SERIOUS OR PERMANENT,
OR ONLY SOME OF THESE, THE STATUTE DOES NOT SAY AND THE LEGISLATIVE
HISTORY GIVES NO GUIDE.  THE JUDGE, OR THE JURY, OR BOTH TOGETHER NOT
ONLY MUST APPLY, THEY MUST DETERMINE AND WRITE THE LAW IN THIS RESPECT,
UNTIL AT ANY RATE THIS COURT, EQUALLY WITHOUT LEGISLATIVE GUIDANCE,
TELLS THEM WHAT CONGRESS HAD IN MIND. 

THERE ARE STILL OTHER UNCERTAINTIES.  WAS IT THE INTENT (1) THAT THE
KIDNAPPER MUST BOTH LIBERATE AND REFRAIN FROM INJURING HIS VICTIM OR
(2) MERELY THAT HE MUST NOT INFLICT HARM, HOWEVER THE LIBERATION MAY
OCCUR?  WE ARE NOT TOLD WHAT WAS CONGRESS' PURPOSE, WHETHER TO MEASURE
THE RIGOR OF THE PUNISHMENT BY THE SEVERITY OF THE INJURY OR TO INDUCE
KIDNAPPERS NOT TO USE VIOLENCE AT ALL, DETERRING THEM BY THE THREAT OF
DEATH FOR ITS USE IN WHATEVER DEGREE.  FN3 NEITHER THE LEGISLATIVE
HISTORY NOR THE OPINION GIVES LIGHT ON THIS QUESTION.  IF CONGRESS
WISHED TO INDUCE GENTLE KIDNAPPINGS, INJURIES INFLICTED IN THE COURSE
OF THE ACT OF KIDNAPPING ARE COVERED, PROVIDED THEY REMAIN AT THE TIME
OF "LIBERATION."  THEY WOULD NOT BE INCLUDED, IF HEALED BEFORE IT,
HOWEVER GRAVE WHEN INFLICTED OR HOWEVER DISTANT LIBERATION FROM
INFLICTION.  WHAT IF THE KIDNAPPER, KNOWING THAT TIME IS CRUCIAL, KEEPS
HIS VICTIM UNTIL THE INJURIES ARE HEALED?  WAS IT CONGRESS' PURPOSE TO
INDUCE LONGER DETENTION, THE MORE SERIOUS THE INJURY INFLICTED DURING
THE ORIGINAL ACT?  WHAT IF IT IS INFLICTED AFTERWARD, BUT DURING THE
COURSE OF THE DETENTION?  ONCE INJURY HAS TAKEN PLACE, THE INDUCEMENT
HELD OUT BY THE STATUTE NECESSARILY IS EITHER TO HOLD THE VICTIM UNTIL
CURE IS EFFECTED OR TO DO AWAY WITH HIM SO THAT EVIDENCE, BOTH OF THE
INJURY AND OF THE KIDNAPPING, IS DESTROYED.  FN4  THE MORE SERIOUS THE
INJURY THE STRONGER THESE INDUCEMENTS.  IT IS ONLY UPON SUCH
CONSIDERATIONS, AFFECTING THE VICTIM'S SAFETY, THAT CONGRESS'
QUALIFICATION OF THE POWER TO IMPOSE THE SENTENCE OF DEATH CAN BE
ACCOUNTED FOR.  FN5    FINALLY, WAS CONGRESS ATTEMPTING TO OFFER THE
MAXIMUM INDUCEMENT TO LIBERATION?  IF THIS WAS THE PURPOSE,
PETITIONER'S CONSTRUCTION, REJECTED BY THE COURT, HAS MORE FORCE THAN
THE OTHER POSSIBLE ONES AMONG WHICH IT DECLINES TO CHOOSE.  FOR IN THAT
EVENT THE KIDNAPPER WOULD HAVE INDUCEMENT, ONCE INJURY IS INFLICTED,
THOUGH SERIOUS, TO SURRENDER THE VICTIM IN THE HOPE THAT CARE AFTER
SURRENDER MIGHT BRING ABOUT CURE BEFORE IMPOSITION OF SENTENCE.  IF THE
SINGLE AND VAGUE WORD "UNHARMED" IS CONSTRUED TO MEAN ABSENCE OF
PERMANENT INJURY OR GRAVE INJURY, THOUGH NOT PERMANENT, HE WOULD HAVE
THE HOPE, THE INDUCEMENT THAT SURRENDER MIGHT GIVE ESCAPE FROM THE
MAXIMUM SENTENCE.  CONTRARY TO THE COURT'S VIEW THAT THIS
INTERPRETATION IS IMPOSSIBLE, IT GOES DIRECTLY TO THE UNANSWERED
QUESTIONS, HOW MUCH AND WHAT KINDS OF INJURY CONGRESS HAD IN MIND; AND
TO ADOPT IT WOULD ACCORD WITH THE RULE THAT CRIMINAL STATUTES SHOULD BE
STRICTLY CONSTRUED.  MOREOVER IT WOULD APPLY IN THIS CASE, SINCE THERE
IS NO EVIDENCE OF PERMANENT INJURY OR EVEN THAT THE INJURIES INFLICTED
WERE CRITICAL AT THE TIME OF THE VICTIM'S RELEASE.  SHE TESTIFIED AT
THE TRIAL. 

IT IS TRUE THIS CONSTRUCTION WOULD MAKE IMPOSITION OF THAT PENALTY
DEPEND UPON FORTUITOUS CIRCUMSTANCES, THE LENGTH OF TIME BETWEEN
RELEASE AND SENTENCE, AS WELL AS THE CHANCES OF THE VICTIM TO RECOVER
AND THEIR SUCCESSFUL WORKING OUT IN THAT PERIOD.  BUT ANY OTHER
CONSTRUCTION EITHER MAKES IT DEPEND UPON CIRCUMSTANCES EQUALLY
FORTUITOUS OR HAS THE INEVITABLE EFFECT, IN MANY CASES, OF HOLDING OUT
INDUCEMENT TO THE KIDNAPPER TO INFLICT THE ULTIMATE HARM RATHER THAN TO
REFRAIN FROM INFLICTING HARM AT ALL.  PETITIONER'S CONSTRUCTION MORE
THAN ANY OTHER TAKES INTO ACCOUNT THE VICTIM'S SAFE SURRENDER.  ONCE
THE VICTIM IS HURT, THE KIDNAPPER'S PROBLEM OF WHAT TO DO WITH HIM
BECOMES INESCAPABLE AND THE PROVISION FOR THE EXTREME PENALTY CAN WORK
ONLY TO DEFEAT OR DEFER LIBERATION.  WAS THIS WHAT CONGRESS INTENDED,
KNOWING THAT FEW KIDNAPPINGS CAN OCCUR IN WHICH SOME SUBSTANTIAL HARM
WILL NOT BE DONE? 

I DOUBT THAT CONGRESS INTENDED THESE CONSEQUENCES.  I DO NOT KNOW
FROM ITS WORDS WHAT IT DID INTEND.  THE OPINION DOES NOT ENLIGHTEN ME,
EXCEPT THAT THIS CASE IS ONE OF POSSIBLY MANY, VAGUELY INDICATED, WHICH
MAY HAVE BEEN IN MIND.  CONGRESS HAS BROAD POWER TO PRESCRIBE PENALTIES
FOR CRIME, INCLUDING DEATH.  IT MAY GIVE WIDE DISCRETION TO COURTS IN
SELECTING FROM A BROAD RANGE OF DEFINED PENALTIES TO FIT THE INDIVIDUAL
CASE.  WITHIN LIMITS THIS DISCRETION MAY INCLUDE THE DEATH PENALTY. 

IT IS ONE THING, HOWEVER, FOR CONGRESS TO CONFER THE DISCRETION
CONFINED BY SPECIFIED AND ASCERTAINABLE LIMITS.  IT IS ANOTHER THING
FOR CONGRESS ITSELF TO TURN THE EXERCISE OF THE CONFERRED DISCRETION
UPON CONDITIONS WHICH CANNOT BE ASCERTAINED FROM ITS MANDATE OR CAN BE
LOCATED ONLY WITH THE GREATEST UNCERTAINTY. 

TWO THINGS ARE CLEAR.  CONGRESS DID NOT INTEND THE DEATH PENALTY TO
APPLY TO ALL CONVICTIONS UNDER THE STATUTE.  NOR WAS ITS IMPOSITION
INTENDED TO REST ABSOLUTELY OR EXCLUSIVELY EITHER UPON THE JURY'S
RECOMMENDATION OR IN THE COURT'S DISCRETION.  THE PURPOSE OBVIOUSLY WAS
TO FORBID IT IN SOME CASES.  BUT THESE CAN BE DETERMINED ONLY BY CHOICE
AMONG CONFLICTING INFERENCES WHICH SET ONE PURPOSE CONGRESS MAY HAVE
HAD IN MIND AT WAR WITH OTHERS EQUALLY ATTRIBUTABLE TO IT. 

THIS CASE INVOLVES THE LAW'S EXTREME PENALTY.  THAT PENALTY SHOULD
NOT REST ON DOUBTFUL COMMAND OR VAGUE AND UNCERTAIN CONDITIONS.  THE
WORDS USED HERE, FOR ITS IMPOSITION, ARE TOO GENERAL AND UNPRECISE, THE
PURPOSES CONGRESS HAD IN USING THEM TOO OBSCURE AND CONTRADICTORY, THE
CONSEQUENCES OF APPLYING THEM ARE TOO CAPRICIOUS, WHETHER FOR THE
VICTIM OR FOR THE KIDNAPPER, TO PERMIT THEIR GIVING FOUNDATION FOR
EXERCISE OF THE POWER OF LIFE AND DEATH OVER THE CITIZEN, THOUGH HE BE
A CONVICTED CRIMINAL.  OTHER PENALTIES MIGHT BE RECTIFIED WITH TIME, IF
WRONG.  THIS ONE CANNOT BE. 

MOREOVER, THE COURT'S REFUSAL TO RESOLVE THE STATUTE'S ADMITTED
AMBIGUITY LEAVES HANGING OVER THE HEADS OF FUTURE VICTIMS THE DANGER
WHICH FLOWS FROM "A DEATH PENALTY PROVISION WHICH WOULD ENCOURAGE" THE
SAME IRREPARABLE FATE FOR THEM.  WHEN THAT FATE FALLS IT WILL NOT BE
"HYPOTHETICAL" AND THERE WILL BE NOTHING EITHER WE OR CONGRESS CAN DO
TO REVOKE IT. 

I THINK THE STATUTE TURNS THE POWER TO IMPOSE THE DEATH PENALTY UPON
FACTS SO VAGUELY DEFINED THAT ONLY JUDICIAL LEGISLATION CAN REMEDY THE
DEFECT.  THIS IS NOT THE KIND OF THING COURTS SHOULD BE LEFT TO WORK
OUT CASE BY CASE THROUGH THE "GRADUAL PROCESS OF INCLUSION AND
EXCLUSION."  THIS BUSINESS RATHER BELONGS TO CONGRESS, NOT TO THE
COURTS.  AS THE COURT'S OPINION STATES, THOUGH I THINK IN CONTRADICTION
OF ITS JUDGMENT, "IT IS FOR CONGRESS AND NOT FOR US TO DECIDE WHETHER
IT IS WISE PUBLIC POLICY TO INFLICT THE DEATH PENALTY AT ALL." 
CONGRESS' MANDATE IN SUCH MATTERS MUST BE CLEAR; OTHERWISE WE, NOT
CONGRESS, DECIDE.  IN THIS ONE IT IS BEYOND UNDERSTANDING. 

I WOULD VACATE THE JUDGMENT AND REMAND THE CAUSE FOR THE PETITIONER
TO BE RESENTENCED. 

FN1  THE GOVERNMENT'S BRIEF CANDIDLY STATES:  "THE INTERPRETATION OF
THE PROVISO HERE INVOLVED MUST BE DETERMINED FROM THE FACE OF THE
STATUTE ITSELF SINCE NEITHER THE LEGISLATIVE HISTORY NOR PRIOR STATE
LEGISLATION OFFERS GUIDANCE."  NO HEARINGS WERE HELD ON THE 1934
AMENDMENTS, PROVIDING FOR THE DEATH PENALTY.  THEY WERE ACCEPTED UPON
CONFERENCE REPORTS BY BOTH HOUSES WITHOUT DEBATE.  H. REP. NO. 1595,
73D CONG., 2D SESS.; 78 CONG. REC. 8775, 8856-8857.  NEITHER H. REP.
NO. 1595 NOR H. REP. NO. 1457, 73D CONG., 2D SESS., GIVES LIGHT ON THE
MEANING OF THE LIMITATION. 

FN2  CF. NOTE 3. 

FN3  AT ONE POINT THE OPINION DECLINES TO EXPRESS A CHOICE BETWEEN
THESE POSSIBLE ALTERNATIVES.  AT ANOTHER IT STATES "THE CLEAR PURPOSE
OF CONGRESS" WAS TO AUTHORIZE "THE DEATH PENALTY, UNDER CERTAIN
CIRCUMSTANCES, FOR KIDNAPPERS WHO HARMED THEIR VICTIMS."  IS THIS TO BE
TAKEN AS DECIDING THAT "LIBERATED UNHARMED" MEANS "LIBERATED NOT HAVING
BEEN HARMED AT ALL"?  IF SO, THE COURT'S VIEW DIFFERS FROM THE
GOVERNMENT'S, WHICH IS THAT THE WORDS MEAN "UNHARMED AT THE TIME OF
LIBERATION."  CF. NOTE 5.  MOREOVER, THE OPINION, IF SO EFFECTIVE,
INVITES FOR THE VICTIM THE VERY DANGER CONGRESS SOUGHT TO AVOID BY
PLACING THE LIMITATION UPON THE POWER TO IMPOSE THE SENTENCE. 

FN4  THESE CONSIDERATIONS FOR THE SAFETY OF THE VICTIM, RECENTLY
DRAMATIZED BY THE LINDBERGH CASE, WERE INFLUENTIAL IN BRINGING ABOUT
THE OMISSION FROM THE ORIGINAL KIDNAPPING ACT OF 1932(47 STAT. 326) OF
ANY PROVISION FOR THE DEATH PENALTY.  REPRESENTATIVE CELLER STATED THEM
THUS: 

"IF YOU INSIST UPON THE DEATH PENALTY, I WAGER THAT YOU WILL INFLICT
A PENALTY ON THE VICTIM WHO IS KIDNAPPED.  THE VICTIM MAY BE MURDERED
OR SLAIN BECAUSE THE PRISONER HAS NOTHING TO GAIN BY THE VICTIM BEING
KEPT ALIVE, BECAUSE HE FORFEITS HIS OWN LIFE, IN ANY EVENT  ....  THE
PERSON KIDNAPPED IS THE WITNESS WHO, EVEN WHEN RESCUED, CAN ALWAYS
POINT THE ACCUSING FINGER AT THE GUILTY.  DOING AWAY WITH THE VICTIM
WOULD SAVE THE LIFE OF THE GUILTY."  75 CONG. REC. 13285.  SEE 75 CONG.
REC. 13282-13304 FOR OTHER STATEMENTS OPPOSING THE EXTREME PENALTY. 

FROM THE VIEWPOINT OF POSSIBLE EFFECTIVENESS IN SECURING THE VICTIM'S
SAFETY, THE QUALIFICATION IMPOSED BY THE 1934 ACT WOULD SEEM TO BE
DIRECTED MORE TOWARD THE KINDS OF DANGER CONGRESS HAD IN MIND DURING
THE 1932 DEBATE THAN TOWARD PREVENTING ALL USE OF FORCE IN THE
KIDNAPPING ACT ITSELF.  CF. NOTE 5 AND UNITED STATES V. PARKER, 19
F.SUPP.  450, AFFIRMED, 103 F.2D 857, CERT. DENIED, 307 U.S. 642. 

FN5  THE GOVERNMENT HAS URGED ADOPTION OF THE CONSTRUCTION WHICH
TAKES ACCOUNT OF THESE CONSIDERATIONS.  THE BRIEF STATES: 

"THE WORDS 'LIBERATED UNHARMED'...  ARE SUBJECT TO TWO
INTERPRETATIONS.  THEY MAY BE CONSTRUED TO MEAN LIBERATED WITHOUT
HAVING BEEN HARMED AT ANY TIME IN THE COURSE OF DETENTION, OR  ...
LIBERATED IN AN UNHARMED CONDITION AT THE TIME OF LIBERATION.  THE
FIRST CONSTRUCTION ATTRIBUTES TO CONGRESS THE INTENTION TO CAUSE
KIDNAPPERS NOT TO HARM THE VICTIM BUT WITHOUT TENDING TO SECURE
LIBERATION OF A VICTIM WHO HAS BEEN HARMED.  THE SECOND CONSTRUCTION
OFFERS THE KIDNAPPER AN INDUCEMENT, IN ADDITION TO THE INDUCEMENT NOT
TO HARM, TO CARE FOR AND TO CURE AN INJURED VICTIM SO THAT HE MAY BE
UNHARMED WHEN LIBERATED.  THE SECOND CONSTRUCTION ENCOURAGES KIDNAPPERS
NOT TO MURDER AN INJURED VICTIM, AN INDUCEMENT NOT PRESENT UNDER THE
FIRST CONSTRUCTION.  IN VIEW OF THE TEMPTATION TO KIDNAPPERS TO MURDER
THEIR VICTIMS IN ORDER TO DISPOSE OF WITNESSES TO THEIR CRIME, AND IN
VIEW OF THE INTEREST DISCLOSED IN CONGRESS TO AVOID A DEATH PENALTY
PROVISION WHICH WOULD ENCOURAGE THIS RESULT, THE GOVERNMENT SUBMITS
THAT THE SECOND CONSTRUCTION MORE PROPERLY REFLECTS THE INTENTION OF
CONGRESS AND SHOULD BE ADOPTED." 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 
..END :








U.S. V. FRANKFORT DISTILLERIES, 324 U.S. 293 


ARGUED FEBRUARY 8, 1945.  - DECIDED MARCH 5, 1945.  - 144 F.2D 824,
REVERSED. 


1.  A CONSPIRACY OF PRODUCERS, WHOLESALERS AND RETAILERS TO FIX AND
MAINTAIN RETAIL PRICES OF ALCOHOLIC BEVERAGES SHIPPED INTO A STATE, BY
ADOPTION OF A SINGLE COURSE IN MAKING CONTRACTS OF SALE AND BOYCOTTING
OTHERS WHO WOULD NOT CONFORM, HELD A VIOLATION OF THE SHERMAN ANTITRUST
ACT.  P. 296. 

2.  NEITHER THE MILLER-TYDINGS AMENDMENT OF THE SHERMAN ACT NOR THE
COLORADO FAIR TRADE ACT PERMITS COMBINATIONS OF BUSINESSMEN TO COERCE
OTHERS INTO MAKING "FAIR TRADE" CONTRACTS.  P. 296. 

3.  THE FACT THAT THE ULTIMATE OBJECT OF THE CONSPIRACY WAS THE
FIXING OR MAINTENANCE OF LOCAL RETAIL PRICES DID NOT RENDER THE SHERMAN
ACT INAPPLICABLE.  P. 298. 

4.  THE TWENTY-FIRST AMENDMENT OF THE CONSTITUTION DOES NOT PRECLUDE
PROSECUTION OF THE VIOLATION OF THE SHERMAN ACT HERE ALLEGED.  P. 299. 

5.  THE TWENTY-FIRST AMENDMENT CONFERRED UPON THE STATES BROAD
REGULATORY POWER OVER THE LIQUOR TRAFFIC WITHIN THEIR BOUNDARIES, BUT
DID NOT GIVE THE STATES PLENARY AND EXCLUSIVE POWER TO REGULATE THE
CONDUCT OF PERSONS DOING AN INTERSTATE LIQUOR BUSINESS.  P. 299. 

UNITED STATES V. FRANKFORT DISTILLERIES, INC. 

NO. 523.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT* . 

*TOGETHER WITH NO. 524, UNITED STATES V. NATIONAL DISTILLERS PRODUCTS
CORP.; NO. 525, UNITED STATES V. BROWN FORMAN DISTILLERS CORP.; NO.
526, UNITED STATES V. HIRAM WALKER, INC.; NO. 527, UNITED STATES V.
SCHENLEY DISTILLERS CORP.; NO. 528, UNITED STATES V. SEAGRAM-DISTILLERS
CORP.; NO. 529, UNITED STATES V. MCKESSON & ROBBINS, INC.; AND NO. 530,
UNITED STATES V. SPEEGLE, ALSO ON CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 323 U.S. 699, TO REVIEW THE REVERSAL OF A CONVICTION, 47
F.SUPP.  160, OF VIOLATION OF THE SHERMAN ANTITRUST ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS ARE PRODUCERS, WHOLESALERS, AND RETAILERS, OF ALCOHOLIC
BEVERAGES, WHO WERE INDICTED IN A FEDERAL DISTRICT COURT FOR HAVING
CONSPIRED AND COMBINED TO RESTRAIN COMMERCE IN VIOLATION OF SEC. 1 OF
THE SHERMAN ACT AS AMENDED.  26 STAT. 209; 50 STAT. 693.  THEIR
DEMURRERS AND MOTION TO QUASH HAVING BEEN OVERRULED, RESPONDENTS
PLEADED NOLO CONTENDERE TO ONE COUNT OF THE INDICTMENT.  ON THESE PLEAS
THEY WERE ADJUDGED GUILTY BY THE DISTRICT COURT AND FINED.  47 F.SUPP. 
160.  THE CIRCUIT COURT OF APPEALS REVERSED, ON THE GROUND THAT THE
INDICTMENT FAILED TO SHOW THAT THE CONSPIRACY CHARGED WAS IN RESTRAINT
OF INTERSTATE COMMERCE.  144 F.2D 824.  THE IMPORTANCE OF THE QUESTIONS
INVOLVED PROMPTED US TO GRANT CERTIORARI.  FN1 

THE INDICTMENT ALLEGED THAT 98% OF THE SPIRITUOUS LIQUORS AND 80% OF
THE WINES CONSUMED IN COLORADO WERE SHIPPED THERE FROM OTHER STATES. 
THE ANNUAL SHIPMENTS INTO THE STATE WERE 1,150,000 GALLONS OF LIQUORS
AND 800,000 GALLONS OF WINE.  SEVENTY-FIVE PERCENT OF THESE BEVERAGES
WERE HANDLED BY THE DEFENDANT WHOLESALERS.  RESPONDENTS WERE CHARGED
WITH CONSPIRING, IN VIOLATION OF THE SHERMAN ACT, TO RAISE, FIX AND
MAINTAIN THE RETAIL PRICES OF ALL THESE BEVERAGES BY RAISING, FIXING,
AND STABILIZING RETAIL MARKUPS AND MARGINS OF PROFIT. 

TO ACCOMPLISH THE OBJECTS OF THE CONSPIRACY, IT IS ALLEGED THAT THEY
ADOPTED THE FOLLOWING COURSE OF ACTION.  ALL OF THE RESPONDENTS AGREED
AMONGST THEMSELVES TO (1) DISCUSS, AGREE UPON AND ADOPT ARBITRARY NON
COMPETITIVE RETAIL PRICES, MARKUPS, AND MARGINS OF PROFIT; (2)
DEFENDANT RETAILERS AND WHOLESALERS AGREED TO PERSUADE AND COMPEL
PRODUCERS TO ENTER INTO FAIR TRADE CONTRACTS ON EVERY TYPE AND BRAND OF
ALCOHOLIC BEVERAGE SHIPPED INTO THE STATE, THEREBY TO ESTABLISH
ARBITRARILY HIGH AND NON-COMPETITIVE RETAIL MARKUPS AND MARGINS OF
PROFIT, AGREED UPON BY DEFENDANTS; (3) THE RETAILERS WERE TO PREPARE
AND ADOPT FORMS OF FAIR TRADE CONTRACTS, AND AGREE WITH PRODUCERS AND
WHOLESALERS UPON THESE FORMS; (4) A BOYCOTT PROGRAM WAS ADOPTED BY ALL
OF THE DEFENDANTS UNDER WHICH RETAILERS WOULD REFUSE TO BUY ANY OF THE
BEVERAGES SOLD BY WHOLESALERS OR PRODUCERS WHO REFUSED TO ENTER INTO OR
ENFORCE COMPLIANCE WITH THE TERMS OF THE PRICE-FIXING AGREEMENTS, AND
NON-COMPLYING RETAILERS WOULD BE DENIED AN OPPORTUNITY TO BUY THE GOODS
OF THE DEFENDANT PRODUCERS AND WHOLESALERS.  MACHINERY WAS SET UP TO
MAKE THE BOYCOTT PROGRAM EFFECTIVE. 

THE FACTS ALLEGED IN THE INDICTMENT, WHICH STAND ADMITTED ON
DEMURRER, AND ON THE PLEA OF NOLO CONTENDERE, INDICATE A PATTERN WHICH
BEARS ALL THE EARMARKS OF A TRADITIONAL RESTRAINT OF TRADE.  THE
PARTICIPANTS ARE PRODUCERS, MIDDLEMEN, AND RETAILERS.  THEY HAVE AGREED
AMONG THEMSELVES TO ADOPT A SINGLE COURSE IN MAKING CONTRACTS OF SALE
AND TO BOYCOTT ALL OTHERS WHO WOULD NOT ADOPT THE SAME COURSE. 

THE EFFECT, AND IF IT WERE MATERIAL, THE PURPOSE OF THE COMBINATION
CHARGED, WAS TO FIX PRICES AT AN ARTIFICIAL LEVEL.  SUCH COMBINATIONS,
AFFECTING COMMERCE AMONG THE STATES, TEND TO ELIMINATE COMPETITION, AND
VIOLATE THE SHERMAN ACT PER SE.  UNITED STATES V. SOCONY VACUUM CO.,
310 U.S. 150, 223-224.  PRICE MAINTENANCE CONTRACTS FALL UNDER THE SAME
BAN, ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 458, EXCEPT
AS PROVIDED BY THE 1937 MILLER-TYDINGS AMENDMENT TO THE SHERMAN ACT. 
50 STAT. 693.  THE COMBINATION CHARGED AGAINST RESPONDENTS DOES NOT
FALL WITHIN THIS EXCEPTION.  IT PERMITS THE SELLER OF AN ARTICLE WHICH
BEARS HIS TRADE MARK, BRAND, OR NAME, TO PRESCRIBE A MINIMUM RESALE
PRICE BY CONTRACT, IF SUCH CONTRACTS ARE LAWFUL IN THE STATE WHERE THE
RESALE IS TO BE MADE AND IF THE TRADE-MARKED ARTICLE IS IN FREE AND
OPEN COMPETITION WITH OTHER ARTICLES OF THE SAME COMMODITY.  THIS TYPE
OF "FAIR TRADE" PRICE MAINTENANCE CONTRACT IS LAWFUL IN COLORADO. 
SESSION LAWS OF COLORADO, 1937, CHAP. 146.  BUT THE MILLER-TYDINGS
AMENDMENT TO THE SHERMAN ACT DOES NOT PERMIT COMBINATIONS OF
BUSINESSMEN TO COERCE OTHERS INTO MAKING SUCH CONTRACTS, AND COLORADO
HAS NOT ATTEMPTED TO GRANT SUCH PERMISSION.  BOTH THE FEDERAL AND STATE
"FAIR TRADE" ACTS EXPRESSLY PROVIDE THAT THEY SHALL NOT APPLY TO PRICE
MAINTENANCE CONTRACTS AMONG PRODUCERS, WHOLESALERS AND COMPETITORS.  IT
FOLLOWS THAT WHATEVER MAY BE THE RIGHTS OF AN INDIVIDUAL PRODUCER UNDER
THE MILLER-TYDINGS AMENDMENT TO MAKE PRICE MAINTENANCE CONTRACTS OR TO
REFUSE TO SELL HIS GOODS TO THOSE WHO WILL NOT MAKE SUCH CONTRACTS, A
COMBINATION TO COMPEL PRICE MAINTENANCE IN COMMERCE AMONG THE STATES
VIOLATES THE SHERMAN ACT.  UNITED STATES V. BAUSCH & LOMB CO., 321 U.S.
707, 719-723.  UNITED STATES V. UNIVIS LENS CO., 316 U.S. 241, 252
253.  CONSEQUENTLY, RESPONDENTS WERE PROPERLY CONVICTED, UNLESS AS THEY
ARGUE, THEIR CONDUCT IS NOT COVERED BY THE SHERMAN ACT, EITHER BECAUSE
THE PRICE FIXING APPLIED ONLY TO RETAIL SALES WHICH WERE WHOLLY
INTRASTATE, OR BECAUSE THE STATE'S POWER TO CONTROL THE LIQUOR TRAFFIC
WITHIN ITS BOUNDARIES MAKES THE SHERMAN ACT INAPPLICABLE. 

THESE TWO QUESTIONS THUS POSED RELATE TO THE EXTENT OF THE SHERMAN
ACT'S APPLICATION TO TRADE RESTRAINTS RESULTING FROM ACTIONS WHICH TAKE
PLACE WITHIN A STATE.  IN RESOLVING THEM, THERE IS AN OBVIOUS
DISTINCTION TO BE DRAWN BETWEEN A COURSE OF CONDUCT WHOLLY WITHIN A
STATE AND CONDUCT WHICH IS AN INSEPARABLE ELEMENT OF A LARGER PROGRAM
DEPENDENT FOR ITS SUCCESS UPON ACTIVITY WHICH AFFECTS COMMERCE BETWEEN
THE STATES.  IT IS TRUE THAT THIS COURT HAS ON OCCASION DETERMINED THAT
LOCAL CONDUCT COULD BE INSULATED FROM THE OPERATION OF THE ANTI-TRUST
LAWS ON THE BASIS OF THE PURELY LOCAL AIMS OF A COMBINATION, INSOFAR AS
THOSE AIMS WERE NOT MOTIVATED BY THE PURPOSE OF RESTRAINING COMMERCE,
AND WHERE THE MEANS USED TO ACHIEVE THE PURPOSE DID NOT DIRECTLY TOUCH
UPON INTERSTATE COMMERCE.  THE CASES RELIED UPON BY RESPONDENTS  FN2
FALL WITHIN THIS CATEGORY.  ALL OF THEM INVOLVED THE APPLICATION OF THE
ANTI-TRUST LAWS TO COMBINATIONS OF BUSINESSMEN OR WORKERS IN LABOR
DISPUTES, AND NOT TO INTERSTATE COMMERCIAL TRANSACTIONS.  ON THE OTHER
HAND, THE SOLE ULTIMATE OBJECT OF RESPONDENTS' COMBINATION IN THE
INSTANT CASE WAS PRICE FIXING OR PRICE MAINTENANCE.  AND WITH REFERENCE
TO COMMERCIAL TRADE RESTRAINTS SUCH AS THESE, CONGRESS, IN PASSING THE
SHERMAN ACT, LEFT NO AREA OF ITS CONSTITUTIONAL POWER UNOCCUPIED; IT
"EXERCISED ALL THE POWER IT POSSESSED."  APEX HOSIERY CO. V. LEADER,
310 U.S. 469, 495. 

THE FACT THAT THE ULTIMATE OBJECT OF THE CONSPIRACY CHARGED WAS THE
FIXING OR MAINTENANCE OF LOCAL RETAIL PRICES, DOES NOT OF ITSELF REMOVE
IT FROM THE SCOPE OF THE SHERMAN ACT; RETAIL OUTLETS HAVE ORDINARILY
BEEN THE OBJECT OF ILLEGAL PRICE MAINTENANCE.  FN3  WHATEVER WAS THE
ULTIMATE OBJECT OF THIS CONSPIRACY, THE MEANS ADOPTED FOR ITS
ACCOMPLISHMENT REACHED BEYOND THE BOUNDARIES OF COLORADO.  THE
COMBINATION CONCERNED ITSELF WITH THE TYPE OF CONTRACT USED IN MAKING
INTERSTATE SALES; ITS COERCIVE POWER WAS USED TO COMPEL THE PRODUCERS
OF ALCOHOLIC BEVERAGES OUTSIDE OF COLORADO TO ENTER INTO PRICE
MAINTENANCE CONTRACTS.  NOR DID THE BOYCOTT USED MERELY AFFECT LOCAL
RETAIL BUSINESS.  LOCAL PURCHASING POWER WAS THE WEAPON USED TO FORCE
PRODUCERS MAKING INTERSTATE SALES TO FIX PRICES AGAINST THEIR WILL.  IT
MAY BE TRUE, AS HAS BEEN ARGUED, THAT UNDER COLORADO LAW, RETAILERS ARE
PROHIBITED FROM BUYING FROM OUT-OF-STATE PRODUCERS, BUT THIS FACT HAS
NO RELEVANCY.  THE POWER OF RETAILERS TO COERCE OUT-OF-STATE PRODUCERS
CAN BE JUST AS EFFECTIVELY EXERCISED THROUGH PRESSURE BROUGHT TO BEAR
UPON WHOLESALERS AS THOUGH THE RETAILERS BROUGHT SUCH PRESSURE TO BEAR
DIRECTLY UPON THE PRODUCERS.  AND COMBINATIONS TO RESTRAIN, BY A
BOYCOTT OF THOSE ENGAGED IN INTERSTATE COMMERCE, THROUGH SUCH INDIRECT
COERCION IS PROHIBITED BY THE SHERMAN ACT.  FN4 

IT IS ARGUED THAT THE TWENTY-FIRST AMENDMENT TO THE CONSTITUTION BARS
THIS PROSECUTION.  THAT AMENDMENT BESTOWED UPON THE STATES BROAD
REGULATORY POWER OVER THE LIQUOR TRAFFIC WITHIN THEIR TERRITORIES.  FN5
IT HAS NOT GIVEN THE STATES PLENARY AND EXCLUSIVE POWER TO REGULATE
THE CONDUCT OF PERSONS DOING AN INTERSTATE LIQUOR BUSINESS OUTSIDE
THEIR BOUNDARIES.  GRANTING THE STATE'S FULL AUTHORITY TO DETERMINE THE
CONDITIONS UPON WHICH LIQUOR CAN COME INTO ITS TERRITORY AND WHAT WILL
BE DONE WITH IT AFTER IT GETS THERE, IT DOES NOT FOLLOW FROM THAT FACT
THAT THE UNITED STATES IS WHOLLY WITHOUT POWER TO REGULATE THE CONDUCT
OF THOSE WHO ENGAGE IN INTERSTATE TRADE OUTSIDE THE JURISDICTION OF THE
STATE OF COLORADO. 

THE SHERMAN ACT IS NOT BEING ENFORCED IN THIS CASE IN SUCH MANNER AS
TO CONFLICT WITH THE LAW OF COLORADO.  THOSE COMBINATIONS WHICH THE
SHERMAN ACT MAKES ILLEGAL AS TO PRODUCERS, WHOLESALERS AND RETAILERS
ARE EXPRESSLY EXEMPTED FROM THE SCOPE OF THE FAIR TRADE ACT OF
COLORADO, AND THUS HAVE NO LEGAL SANCTION UNDER STATE LAW EITHER.  FN6
WE THEREFORE DO NOT HAVE HERE A CASE IN WHICH THE SHERMAN ACT IS
APPLIED TO DEFEAT THE POLICY OF THE STATE.  THAT WOULD RAISE QUESTIONS
OF MOMENT WHICH NEED NOT BE DECIDED UNTIL THEY ARE PRESENTED.  THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF THE
DISTRICT COURT IS AFFIRMED.  IT IS SO ORDERED. 

FN1  323 U.S. 699. 

FN2  INDUSTRIAL ASSOCIATION OF SAN FRANCISCO V. UNITED STATES, 268
U.S. 64; LEVERING & GARRIGUES CO. V. MORRIN, 289 U.S. 103; UNITED
LEATHER WORKERS V. HERKERT & MEISEL TRUNK CO., 265 U.S. 457; CF. LOCAL
167 V. UNITED STATES, 291 U.S. 293, 297, AND UNITED STATES V.
HUTCHESON, 312 U.S. 219. 

FN3  SEE, E.G., DR. MILES MEDICAL CO. V. PARK & SONS CO., 220 U.S.
373, 404; ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436; UNITED
STATES V. UNIVIS LENS CO., 316 U.S. 241, 244, 245. 

FN4  FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMMISSION, 312 U.S.
457, 465; LOEWE V. LAWLOR, 208 U.S. 274. 

FN5  CARTER V. VIRGINIA, 321 U.S. 131; ZIFFRIN, INC. V. REEVES, 308
U.S. 132, 138; STATE BOARD V. YOUNG'S MARKET CO., 299 U.S. 59. 

FN6  THE COLORADO FAIR TRADE ACT, 1937 COL. SESSION LAWS, CH. 146,
PROVIDES THAT UNDER CERTAIN CONDITIONS SELLERS OF COMMODITIES CAN
CONTRACT WITH BUYERS NOT TO RESELL, AND TO REQUIRE SUBSEQUENT
PURCHASERS NOT TO RESELL, AT LESS THAN THE MINIMUM PRICE STIPULATED BY
THE SELLER.  BUT THAT ACT SPECIFICALLY PROVIDES THAT IT SHALL NOT APPLY
TO HORIZONTAL AGREEMENTS, "TO ANY CONTRACT OR AGREEMENT BETWEEN OR
AMONG PRODUCERS OR BETWEEN OR AMONG WHOLESALERS OR BETWEEN OR AMONG
RETAILERS AS TO SALE OR RESALE PRICES."  THE COLORADO UNFAIR PRACTICES
ACT, 1941 COL. SESSION LAWS, CH. 227, AMENDING AND REENACTING 1937 COL.
SESSION LAWS, CH. 261, MAKES IT UNLAWFUL TO SELL GOODS BELOW COST TO
INJURE OR DESTROY COMPETITION, AND STATES THAT THE EXPRESS PURPOSE OF
THE ACT IS "TO SAFEGUARD THE PUBLIC AGAINST  ...  MONOPOLIES AND TO
FOSTER AND ENCOURAGE COMPETITION." 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE TWENTY-FIRST AMENDMENT MADE A FUNDAMENTAL CHANGE, AS TO CONTROL
OF THE LIQUOR TRAFFIC, IN THE CONSTITUTIONAL RELATIONS BETWEEN THE
STATES AND NATIONAL AUTHORITY.  BEFORE THAT AMENDMENT - DISREGARDING
THE INTERLUDE OF THE EIGHTEENTH AMENDMENT - ALCOHOL WAS FOR
CONSTITUTIONAL PURPOSES TREATED IN THE ABSTRACT AS AN ARTICLE OF
COMMERCE JUST LIKE PEANUTS AND POTATOES.  AS A RESULT, THE POWER OF THE
STATES TO CONTROL THE LIQUOR TRAFFIC WAS SUBORDINATED TO THE RIGHT OF
FREE TRADE ACROSS STATE LINES AS EMBODIED IN THE COMMERCE CLAUSE.  THE
TWENTY-FIRST AMENDMENT REVERSED THIS LEGAL SITUATION BY SUBORDINATING
RIGHTS UNDER THE COMMERCE CLAUSE TO THE POWER OF A STATE TO CONTROL,
AND TO CONTROL EFFECTIVELY, THE TRAFFIC IN LIQUOR WITHIN ITS BORDERS. 
THE COURSE OF LEGAL HISTORY WHICH MADE NECESSARY THE TWENTY-FIRST
AMENDMENT IN ORDER TO PERMIT THE STATES TO CONTROL THE LIQUOR TRAFFIC,
ACCORDING TO THEIR NOTIONS OF POLICY FREED FROM THE RESTRICTIONS UPON
STATE POWER WHICH THE COMMERCE CLAUSE IMPLIES AS TO ORDINARY ARTICLES
OF COMMERCE, WAS SUMMARIZED IN MY CONCURRING OPINION IN CARTER V.
VIRGINIA, 321 U.S. 131, 139. 

AS A MATTER OF CONSTITUTIONAL LAW, THE RESULT OF THE TWENTY-FIRST
AMENDMENT IS THAT A STATE MAY ERECT ANY BARRIER IT PLEASES TO THE ENTRY
OF INTOXICATING LIQUORS.  ITS BARRIER MAY BE LOW, HIGH, OR
INSURMOUNTABLE.  OF COURSE, IF A STATE CHOOSES NOT TO EXERCISE THE
POWER GIVEN IT BY THE TWENTY-FIRST AMENDMENT AND TO CONTINUE TO TREAT
INTOXICATING LIQUORS LIKE OTHER ARTICLES, THE OPERATION OF THE COMMERCE
CLAUSE CONTINUES.  SINCE THE COMMERCE CLAUSE IS SUBORDINATE TO THE
EXERCISE OF STATE POWER UNDER THE TWENTY-FIRST AMENDMENT, THE SHERMAN
LAW, DERIVING ITS AUTHORITY FROM THE COMMERCE CLAUSE, CAN HAVE NO
GREATER POTENCY THAN THE COMMERCE CLAUSE ITSELF.  IT MUST EQUALLY YIELD
TO STATE POWER DRAWN FROM THE TWENTY-FIRST AMENDMENT.  AND SO, THE
VALIDITY OF A CHARGE UNDER THE SHERMAN LAW RELATING TO INTOXICATING
LIQUORS DEPENDS UPON THE UTILIZATION BY A STATE OF ITS CONSTITUTIONAL
POWER UNDER THE TWENTY-FIRST AMENDMENT.  IF A STATE FOR ITS OWN
SUFFICIENT REASONS DEEMS IT A DESIRABLE POLICY TO STANDARDIZE THE PRICE
OF LIQUOR WITHIN ITS BORDERS EITHER BY A DIRECT PRICE-FIXING STATUTE OR
BY PERMISSIVE SANCTION OF SUCH PRICE-FIXING IN ORDER TO DISCOURAGE THE
TEMPTATIONS OF CHEAP LIQUOR DUE TO CUTTHROAT COMPETITION, THE TWENTY
FIRST AMENDMENT GIVES IT THAT POWER AND THE COMMERCE CLAUSE DOES NOT
GAINSAY IT.  SUCH STATE POLICY CAN NOT OFFEND THE SHERMAN LAW EVEN
THOUGH DISTILLERS OR MIDDLEMEN AGREE WITH LOCAL DEALERS TO RESPECT THIS
POLICY.  IF AN AGREEMENT AMONG LOCAL DEALERS NOT TO BUY LIQUOR THROUGH
CHANNELS OF INTERSTATE COMMERCE DOES NOT OFFEND THE SHERMAN LAW THOUGH
A LIKE AGREEMENT AS TO OTHER COMMODITIES WOULD, AN AGREEMENT AMONG
LIQUOR DEALERS TO ABIDE BY STATE POLICY FOR A UNIFORM PRICE - WHICH IS
FAR LESS RESTRICTIVE OF INTERSTATE COMMERCE THAN A COMPREHENSIVE
BOYCOTT - CAN HARDLY BE A VIOLATION OF THE SHERMAN LAW. 

THUS THE QUESTION IN THIS CASE, AS I SEE IT, IS WHETHER IN FACT THE
POLICY OF COLORADO SANCTIONS SUCH AN ARRANGEMENT AS THE INDICTMENT
CHARGES.  SUCH A POLICY MAY BE EXPRESSED EITHER FORMALLY BY LEGISLATION
OR BY IMPLIED PERMISSION.  UNLESS STATE POLICY IS VOICED EITHER BY
LEGISLATION OR BY STATE COURT DECISIONS, IT IS PRECARIOUS BUSINESS FOR
AN OUTSIDER TO BE CONFIDENT ABOUT THE LEGAL POLICY OF A STATE.  SO FAR
AS OUR ATTENTION HAS BEEN CALLED TO MATERIALS RELEVANT FOR ASCERTAINING
THE POLICY OF COLORADO TOWARD SUCH A PRICE ARRANGEMENT AS IS HERE
CHARGED, IT WOULD BE TEMERARIOUS TO SUGGEST THAT COLORADO DOES SANCTION
IT.  INDEED, THE LEGISLATION OF COLORADO LOOKS IN THE OPPOSITE
DIRECTION.  AND WE HAVE NO GUIDANCE FROM STATE DECISIONS TO SUGGEST
THAT THE APPARENT CONDEMNATION OF SUCH AN ARRANGEMENT UNDER THE
COLORADO FAIR TRADE ACT, SEC. 2, COLO. STAT. ANN., CH. 165, SEC. 20(2),
DOES NOT CONDEMN THE PRICE ARRANGEMENTS BEFORE US.  ALTHOUGH THE
ATTORNEY GENERAL OF COLORADO HAS FILED A BRIEF AS AMICUS CURIAE ON THE
SIDE OF THE RESPONDENTS, HIS ARGUMENT IS NOT BASED ON THE CONTENTION
THAT THE POLICY OF COLORADO SANCTIONS THAT WHICH IT IS CLAIMED THE
SHERMAN LAW FORBIDS.  IN THE VIEW I TAKE OF THE MATTER, IF A STATE
AUTHORIZED THE TRANSACTIONS HERE COMPLAINED OF, THE SHERMAN LAW COULD
NOT OVERRIDE SUCH EXERCISE OF STATE POWER.  FOR, IN ANY EVENT, IF STATE
POLICY DID SO AUTHORIZE IT, CONFORMITY WITH THE STATE POLICY COULD NOT
BE DEEMED AN "UNREASONABLE" RESTRAINT OF INTERSTATE COMMERCE.  BUT I DO
NOT FIND THAT COLORADO HAS DONE SO. 

THE DECISION OF THE COURT BELOW IS NOT WITHOUT SUPPORT IN WHAT HAS
BEEN SAID IN THE PAST IN HOLDING THAT, APART FROM THE TWENTY-FIRST
AMENDMENT, THIS WAS A RESTRAINT LOCAL IN ITS NATURE AND THEREFORE
OUTSIDE THE SCOPE OF THE SHERMAN LAW.  BUT PRICE-FIXING IS SUCH AN
IMMEDIATE RESTRAINT UPON TRADE THAT I DO NOT THINK THAT THE REACH OF
THE CONSEQUENCES OF SUCH AN OBVIOUS RESTRAINT SHOULD BE DETERMINED BY
DRAWING TOO NICE LINES AS A MATTER OF PLEADING.  THE CASE IS BEFORE US,
IN EFFECT, ON DEMURRER TO THE INDICTMENT AND JUDGED ABSTRACTLY, AS A
MATTER OF PLEADING, I CANNOT SAY THAT THE INDICTMENT WAS DEMURRABLE. 

MR. JUSTICE ROBERTS CONCURS IN THIS OPINION. 
..END :








COMMISSIONER V. WEMYSS, 324 U.S. 303 


NO. 629.  ARGUED JANUARY 9, 1945.  - DECIDED MARCH 5, 1945.  - 144 F.2D
78, REVERSED. 


1.  PURSUANT TO AN ANTENUPTIAL AGREEMENT, RESPONDENT MADE A TRANSFER
OF PROPERTY TO HIS PROSPECTIVE WIFE IN CONSIDERATION OF HER PROMISE OF
MARRIAGE AND TO COMPENSATE FOR HER LOSS OF TRUST INCOME WHICH UPON HER
MARRIAGE WOULD GO TO A CHILD BY A FORMER MARRIAGE.  HELD THAT, UNDER
SECS. 501 AND 503 OF THE REVENUE ACT OF 1932 AND APPLICABLE TREASURY
REGULATIONS, THE TRANSFER WAS A TAXABLE GIFT IN ITS ENTIRETY.  P. 306. 

2.  THE DECISION OF THE TAX COURT THAT THE TRANSFER WAS NOT MADE FOR
A "CONSIDERATION IN MONEY OR MONEY'S WORTH," WITHIN THE MEANING OF SEC.
503, IS BINDING ON REVIEW.  P. 307. 

3.  TO RELIEVE A TRANSFER FROM THE GIFT TAX UNDER THE REVENUE ACT OF
1932 THERE MUST BE A CONSIDERATION IN MONEY OR MONEY'S WORTH OF BENEFIT
TO THE TRANSFEROR; DETRIMENT TO THE TRANSFEREE IS INSUFFICIENT.  P.
307. 

COMMISSIONER OF INTERNAL REVENUE V. WEMYSS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 323 U.S. 703, TO REVIEW THE REVERSAL OF A DECISION OF THE
TAX COURT, 2 T.C. 876, SUSTAINING THE COMMISSIONER'S DETERMINATION OF A
DEFICIENCY IN FEDERAL GIFT TAXES. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN 1939 TAXPAYER PROPOSED MARRIAGE TO MRS. MORE, A WIDOW WITH ONE
CHILD.  HER DECEASED HUSBAND HAD SET UP TWO TRUSTS, ONE HALF THE INCOME
OF WHICH WAS FOR THE BENEFIT OF MRS. MORE AND THE OTHER HALF FOR THAT
OF THE CHILD WITH PROVISION THAT, IN THE EVENT OF MRS. MORE'S
REMARRIAGE, HER PART OF THE INCOME CEASED AND WENT TO THE CHILD.  THE
CORPUS OF THE TWO TRUSTS CONSISTED OF STOCK WHICH BROUGHT TO MRS. MORE
FROM THE DEATH OF HER FIRST HUSBAND TO HER REMARRIAGE, ABOUT FIVE YEARS
LATER, AN AVERAGE INCOME OF $5,484 A YEAR.  ON MRS. MORE'S
UNWILLINGNESS TO SUFFER LOSS OF HER TRUST INCOME THROUGH REMARRIAGE THE
PARTIES ON MAY 24, 1939, ENTERED UPON AN AGREEMENT WHEREBY TAXPAYER
TRANSFERRED TO MRS. MORE A BLOCK OF SHARES OF STOCK.  WITHIN A MONTH
THEY MARRIED.  THE COMMISSIONER RULED THAT THE TRANSFER OF THIS STOCK,
THE VALUE OF WHICH, $149,456.13, TAXPAYER DOES NOT CONTROVERT, WAS
SUBJECT TO THE FEDERAL GIFT TAX, SECS. 501 AND 503 OF THE REVENUE ACT
OF 1932, 47 STAT. 169, 245, 247, 26 U.S.C. SECS. 1000, 1002. 
ACCORDINGLY, HE ASSESSED A DEFICIENCY WHICH THE TAX COURT UPHELD, 2
T.C. 876, BUT THE CIRCUIT COURT OF APPEALS REVERSED THE TAX COURT, 144
F.2D 78.  WE GRANTED CERTIORARI TO SETTLE UNCERTAINTIES IN TAX
ADMINISTRATION ENGENDERED BY SEEMINGLY CONFLICTING DECISIONS.  323 U.S.
703. 

THE ANSWER TO OUR PROBLEM TURNS ON THE PROPER APPLICATION OF SECS.
501(A) AND 503 SUPRA TO THE IMMEDIATE FACTS.  THESE PROVISIONS ARE AS
FOLLOWS: 

"SEC. 501.  IMPOSITION OF TAX. 

(A)  FOR THE CALENDAR YEAR 1932 AND EACH CALENDAR YEAR THEREAFTER A
TAX, COMPUTED AS PROVIDED IN SECTION 502, SHALL BE IMPOSED UPON THE
TRANSFER DURING SUCH CALENDAR YEAR BY ANY INDIVIDUAL  ... OF PROPERTY
BY GIFT." 

"SEC. 503.  TRANSFER FOR LESS THAN ADEQUATE AND FULL CONSIDERATION. 

WHERE PROPERTY IS TRANSFERRED FOR LESS THAN AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH, THEN THE AMOUNT BY WHICH THE
VALUE OF THE PROPERTY EXCEEDED THE VALUE OF THE CONSIDERATION SHALL,
FOR THE PURPOSE OF THE TAX IMPOSED BY THIS TITLE, BE DEEMED A GIFT, AND
SHALL BE INCLUDED IN COMPUTING THE AMOUNT OF GIFTS MADE DURING THE
CALENDAR YEAR." 

IN VIEW OF THE MAJOR ROLE WHICH THE TAX COURT PLAYS IN FEDERAL TAX
LITIGATION, IT BECOMES IMPORTANT TO CONSIDER HOW THAT COURT DEALT WITH
THIS PROBLEM.  FUSING, AS IT WERE, SECS. 501 AND 503, THE TAX COURT
READ THEM AS NOT BEING LIMITED BY ANY COMMON LAW TECHNICAL NOTIONS
ABOUT "CONSIDERATION."  AND SO, WHILE RECOGNIZING THAT MARRIAGE WAS OF
COURSE A VALUABLE CONSIDERATION TO SUPPORT A CONTRACT, THE TAX COURT
DID NOT DEEM MARRIAGE TO SATISFY THE REQUIREMENT OF SEC. 503 IN THAT IT
WAS NOT A CONSIDERATION REDUCIBLE TO MONEY VALUE.  ACCORDINGLY, THE
COURT FOUND THE WHOLE VALUE OF THE STOCK TRANSFERRED TO MRS. MORE
TAXABLE UNDER THE STATUTE AND THE RELEVANT TREAS. REG. 79(1936 ED.) 
ART.  8:  "A CONSIDERATION NOT REDUCIBLE TO A MONEY VALUE, AS LOVE AND
AFFECTION, PROMISE OF MARRIAGE, ETC., IS TO BE WHOLLY DISREGARDED, AND
THE ENTIRE VALUE OF THE PROPERTY TRANSFERRED CONSTITUTES THE AMOUNT OF
THE GIFT."  IN THE ALTERNATIVE, THE TAX COURT WAS OF THE VIEW THAT IF
MRS. MORE'S LOSS OF HER TRUST INCOME RATHER THAN THE MARRIAGE WAS
CONSIDERATION FOR THE TAXPAYER'S TRANSFER OF HIS STOCK TO HER, HE IS
NOT RELIEVED FROM THE TAX BECAUSE HE DID NOT RECEIVE ANY MONEY'S WORTH
FROM MRS. MORE'S RELINQUISHMENT OF HER TRUST INCOME, AND, IN ANY EVENT,
THE ACTUAL VALUE OF HER INTEREST IN THE TRUST, SUBJECT TO FLUCTUATIONS
OF ITS STOCK EARNINGS, WAS NOT PROVED.  ONE MEMBER OF THE TAX COURT
DISSENTED, DEEMING THAT THE GIFT TAX LEGISLATION INVOKED ORDINARY
CONTRACT CONCEPTIONS OF "CONSIDERATION." 

THE CIRCUIT COURT OF APPEALS REJECTED THIS LINE OF REASONING.  IT
FOUND IN THE MARRIAGE AGREEMENT AN ARM'S LENGTH BARGAIN AND AN ABSENCE
OF "DONATIVE INTENT" WHICH IT DEEMED ESSENTIAL: "A DONATIVE INTENT
FOLLOWED BY A DONATIVE ACT IS ESSENTIAL TO CONSTITUTE A GIFT; AND NO
STRAINED AND ARTIFICIAL CONSTRUCTION OF A SUPPLEMENTARY STATUTE SHOULD
BE INDULGED TO TAX AS A GIFT A TRANSFER ACTUALLY LACKING DONATIVE
INTENT."  144 F.2D 78, 82. 

THEM TO THE SAME PURPOSE, AND THEY SHOULD NOT BE SEPARATED IN
APPLICATION.  HAD CONGRESS TAXED "GIFTS" SIMPLICITER, IT WOULD BE
APPROPRIATE TO ASSUME THAT THE TERM WAS USED IN ITS COLLOQUIAL SENSE,
AND A SEARCH FOR "DONATIVE INTENT" WOULD BE INDICATED.  BUT CONGRESS
INTENDED TO USE THE TERM "GIFTS" IN ITS BROADEST AND MOST COMPREHENSIVE
SENSE.  H. REP. NO. 708, 72D CONG., 1ST SESS., P. 27; S. REP. NO. 665,
72D CONG., 1ST SESS., P. 39; CF. SMITH V. SHAUGHNESSY, 318 U.S. 176;
ROBINETTE V. HELVERING, 318 U.S. 184.  CONGRESS CHOSE NOT TO REQUIRE AN
ASCERTAINMENT OF WHAT TOO OFTEN IS AN ELUSIVE STATE OF MIND.  FOR
PURPOSES OF THE GIFT TAX IT NOT ONLY DISPENSED WITH THE TEST OF
"DONATIVE INTENT."  IT FORMULATED A MUCH MORE WORKABLE EXTERNAL TEST,
THAT WHERE "PROPERTY IS TRANSFERRED FOR LESS THAN AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH," THE EXCESS IN SUCH MONEY
VALUE "SHALL, FOR THE PURPOSE OF THE TAX IMPOSED BY THIS TITLE, BE
DEEMED A GIFT  ..."  AND TREASURY REGULATIONS HAVE EMPHASIZED THAT
COMMON LAW CONSIDERATIONS WERE NOT EMBODIED IN THE GIFT TAX.  FN1 

TO REINFORCE THE EVIDENT DESIRE OF CONGRESS TO HIT ALL THE PROTEAN
ARRANGEMENTS WHICH THE WIT OF MAN CAN DEVISE THAT ARE NOT BUSINESS
TRANSACTIONS WITHIN THE MEANING OF ORDINARY SPEECH, THE TREASURY
REGULATIONS MAKE CLEAR THAT NO GENUINE BUSINESS TRANSACTION COMES
WITHIN THE PURPORT OF THE GIFT TAX BY EXCLUDING "A SALE, EXCHANGE, OR
OTHER TRANSFER OF PROPERTY MADE IN THE ORDINARY COURSE OF BUSINESS (A
TRANSACTION WHICH IS BONA FIDE, AT ARM'S LENGTH, AND FREE FROM ANY
DONATIVE INTENT)."  TREAS. REG. 79(1936 ED.)  ART.  8.  THUS ON FINDING
THAT A TRANSFER IN THE CIRCUMSTANCES OF A PARTICULAR CASE IS NOT MADE
IN THE ORDINARY COURSE OF BUSINESS, THE TRANSFER BECOMES SUBJECT TO THE
GIFT TAX TO THE EXTENT THAT IT IS NOT MADE "FOR AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH."  SEE 2 PAUL, FEDERAL ESTATE
AND GIFT TAXATION (1942) P. 1113. 

THE TAX COURT IN EFFECT FOUND THE TRANSFER OF THE STOCK TO MRS. MORE
WAS NOT MADE AT ARM'S LENGTH IN THE ORDINARY COURSE OF BUSINESS.  IT
NOTED THAT THE INDUCEMENT WAS MARRIAGE, TOOK ACCOUNT OF THE DISCREPANCY
BETWEEN WHAT SHE GOT AND WHAT SHE GAVE UP, AND ALSO OF THE BENEFIT THAT
HER MARRIAGE SETTLEMENT BROUGHT TO HER SON.  THESE WERE CONSIDERATIONS
THE TAX COURT COULD JUSTIFIABLY HEED, AND HEEDING, DECIDE AS IT DID. 
ITS CONCLUSION ON THE ISSUE BEFORE IT WAS NO LESS TO BE RESPECTED THAN
WERE THE ISSUES WHICH WE DEEMED IT WAS ENTITLED TO DECIDE AS IT DID IN
DOBSON V. COMMISSIONER, 320 U.S. 489, COMMISSIONER V. HEININGER, 320
U.S. 467, COMMISSIONER V. SCOTTISH AMERICAN CO., 323 U.S. 119. 

IF WE ARE TO ISOLATE AS AN INDEPENDENTLY REVIEWABLE QUESTION OF LAW
THE VIEW OF THE TAX COURT THAT MONEY CONSIDERATION MUST BENEFIT THE
DONOR TO RELIEVE A TRANSFER BY HIM FROM BEING A GIFT, WE THINK THE TAX
COURT WAS CORRECT.  SEE COMMISSIONER V. BRISTOL, 121 F.2D 129.  TO BE
SURE, THE REVENUE ACT OF 1932 DOES NOT SPELL OUT A REQUIREMENT OF
BENEFIT TO THE TRANSFEROR TO AFFORD RELIEF FROM THE GIFT TAX.  ITS
FORERUNNER, SEC. 320 OF THE 1924 ACT, 43 STAT. 253, 314, WAS MORE
EXPLICIT IN THAT IT PROVIDED THAT THE EXCESS OF THE TRANSFER OVER "THE
CONSIDERATION RECEIVED SHALL  ... BE DEEMED A GIFT."  IT WILL HARDLY BE
SUGGESTED, HOWEVER, THAT IN RE-IMPOSING THE GIFT TAX IN 1932 CONGRESS
MEANT TO EXCLUDE TRANSFERS THAT WOULD HAVE BEEN TAXED UNDER THE 1924
ACT.  THE SECTION TAXING AS GIFTS TRANSFERS THAT ARE NOT MADE FOR
"ADEQUATE AND FULL (MONEY) CONSIDERATION" AIMS TO REACH THOSE TRANSFERS
WHICH ARE WITHDRAWN FROM THE DONOR'S ESTATE.  TO ALLOW DETRIMENT TO THE
DONEE TO SATISFY THE REQUIREMENT OF "ADEQUATE AND FULL CONSIDERATION"
WOULD VIOLATE THE PURPOSE OF THE STATUTE AND OPEN WIDE THE DOOR FOR
EVASION OF THE GIFT TAX.  SEE 2 PAUL, SUPRA, AT 1114.  REVERSED. 

FN1  TREAS. REG. 79(1936 ED.)  ART.  1:  "IMPOSITION OF TAX.  -  ...
THE TAX IS NOT LIMITED IN ITS IMPOSITION TO TRANSFERS OF PROPERTY
WITHOUT A VALUABLE CONSIDERATION, WHICH AT COMMON LAW ARE TREATED AS
GIFTS, BUT EXTENDS TO SALES AND EXCHANGES FOR LESS THAN AN ADEQUATE AND
FULL CONSIDERATION IN MONEY OR MONEY'S WORTH." 

MR. JUSTICE ROBERTS DISSENTS, AND WOULD AFFIRM THE JUDGMENT FOR THE
REASONS GIVEN IN THE OPINION OF THE CIRCUIT COURT OF APPEALS. 
..END :











MERRILL V. FAHS, 324 U.S. 308 


NO. 126.  ARGUED JANUARY 9, 1945.  - DECIDED MARCH 5, 1945.  - 142 F.2D
651, AFFIRMED. 


1.  BY SEC. 503 OF THE REVENUE ACT OF 1932, TRANSFERS OF PROPERTY ARE
RELIEVED FROM THE GIFT TAX TO THE EXTENT THAT THEY ARE MADE FOR AN
"ADEQUATE AND FULL CONSIDERATION."  HELD, IN THE CASE OF A TRANSFER OF
PROPERTY PURSUANT TO AN ANTENUPTIAL AGREEMENT, THAT THE RELINQUISHMENT
OF MARITAL RIGHTS CAN NOT TO ANY EXTENT CONSTITUTE "ADEQUATE AND FULL
CONSIDERATION."  P. 312. 

2.  PROVISIONS OF THE FEDERAL GIFT AND ESTATE TAX STATUTES ARE TO BE
CONSTRUED HARMONIOUSLY; AND, WHERE OBVIOUS REASONS DO NOT COMPEL
DIVERGENT TREATMENT, IDENTICAL PHRASES CONCERNING THE SAME SUBJECT
MATTER ARE TO BE GIVEN IDENTICAL CONSTRUCTION.  P. 313. 

MERRILL V. FAHS, COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 323 U.S. 686, TO REVIEW THE REVERSAL OF A JUDGMENT OF THE
DISTRICT COURT FOR THE TAXPAYER, 51 F.SUPP.  120, IN A SUIT FOR A
REFUND OF GIFT TAXES. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO COMMISSIONER V. WEMYSS, ANTE, P. 303. 

ON MARCH 7, 1939, TAXPAYER, THE PETITIONER, MADE AN ANTENUPTIAL
AGREEMENT WITH KINTA DESMARE.  TAXPAYER, A RESIDENT OF FLORIDA, HAD
BEEN TWICE MARRIED AND HAD THREE CHILDREN AND TWO GRANDCHILDREN.  HE
WAS A MAN OF LARGE RESOURCES, WITH CASH AND SECURITIES WORTH MORE THAN
$5,000,000, AND FLORIDA REAL ESTATE VALUED AT $135,000.  MISS DESMARE'S
ASSETS WERE NEGLIGIBLE.  BY THE ARRANGEMENT ENTERED INTO THE DAY BEFORE
THEIR MARRIAGE, TAXPAYER AGREED TO SET UP WITHIN NINETY DAYS AFTER
MARRIAGE AN IRREVOCABLE TRUST FOR $300,000, THE PROVISIONS OF WHICH
WERE TO CONFORM TO MISS DESMARE'S WISHES.  THE TAXPAYER WAS ALSO TO
PROVIDE IN HIS WILL FOR TWO ADDITIONAL TRUSTS, ONE, LIKEWISE IN THE
AMOUNT OF $300,000, TO CONTAIN THE SAME LIMITATIONS AS THE INTER VIVOS
TRUST, AND THE OTHER, ALSO IN THE AMOUNT OF $300,000, FOR THE BENEFIT
OF THEIR SURVIVING CHILDREN.  IN RETURN MISS DESMARE RELEASED ALL
RIGHTS THAT SHE MIGHT ACQUIRE AS WIFE OR WIDOW IN TAXPAYER'S PROPERTY,
BOTH REAL AND PERSONAL, EXCEPTING THE RIGHT TO MAINTENANCE AND
SUPPORT.  THE INDUCEMENTS FOR THIS AGREEMENT WERE STATED TO BE THE
CONTEMPLATED MARRIAGE, DESIRE TO MAKE FAIR REQUITAL FOR THE RELEASE OF
MARITAL RIGHTS, FREEDOM FOR THE TAXPAYER TO MAKE APPROPRIATE PROVISIONS
FOR HIS CHILDREN AND OTHER DEPENDENTS, THE UNCERTAINTY SURROUNDING HIS
FINANCIAL FUTURE AND MARITAL TRANQUILLITY.  THAT SUCH AN ANTENUPTIAL
AGREEMENT IS ENFORCEABLE IN FLORIDA IS NOT DISPUTED, NORTH V. RINGLING,
149 FLA. 739, 7 SO.2D 476, NOR THAT FLORIDA GIVES A WIFE AN INCHOATE
INTEREST IN ALL THE HUSBAND'S PROPERTY, CONTINGENT DURING HIS LIFE BUT
ABSOLUTE UPON DEATH.  FLORIDA STATUTES (1941) SEC. 731.34; SMITH V.
HINES, 10 FLA. 258; HENDERSON V. USHER, 125 FLA. 709, 170 SO. 846.  THE
PARTIES MARRIED, AND THE AGREEMENT WAS FULLY CARRIED OUT. 

ON THEIR GIFT TAX RETURN FOR 1939, BOTH REPORTED THE CREATION OF THE
TRUST BUT CLAIMED THAT NO TAX WAS DUE.  THE COMMISSIONER, HOWEVER,
DETERMINED A DEFICIENCY OF $99,000 IN TAXPAYER'S RETURN IN RELATION TO
THE TRANSFER OF THE $300,000.  UPON THE COMMISSIONER'S REJECTION OF THE
TAXPAYER'S CLAIM FOR REFUND OF THE ASSESSMENT PAID BY HIM, THE PRESENT
SUIT AGAINST THE COLLECTOR WAS FILED.  THE DISTRICT COURT SUSTAINED THE
TAXPAYER, 51 F.SUPP.  120, BUT WAS REVERSED BY THE CIRCUIT COURT OF
APPEALS FOR THE FIFTH CIRCUIT, ONE JUDGE DISSENTING.  142 F.2D 651.  WE
GRANTED CERTIORARI IN CONNECTION WITH COMMISSIONER V. WEMYSS, SUPRA,
AND HEARD THE TWO CASES TOGETHER.  323 U.S. 686. 

THIS CASE, UNLIKE THE WEMYSS CASE, DOES NOT COME HERE BY WAY OF THE
TAX COURT.  NO AID CAN THEREFORE BE DRAWN FROM A PRIOR DETERMINATION BY
THE TRIBUNAL SPECIALLY ENTRUSTED WITH TAX ADJUDICATIONS.  (SEE
GRISWOLD, THE NEED FOR A COURT OF TAX APPEALS (1944) 57 HARV. L. REV.
1153, 1173.)  BUT LIKE THE WEMYSS CASE, THIS CASE TURNS ON THE PROPER
APPLICATION OF SEC. 503 OF THE REVENUE ACT OF 1932, 47 STAT. 169, 247,
26 U.S.C. SEC. 1002.  IN THE INTEREST OF CLARITY WE REPRINT IT HERE:
"WHERE PROPERTY IS TRANSFERRED FOR LESS THAN AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH, THEN THE AMOUNT BY WHICH THE
VALUE OF THE PROPERTY EXCEEDED THE VALUE OF THE CONSIDERATION SHALL,
FOR THE PURPOSE OF THE TAX IMPOSED BY THIS TITLE, BE DEEMED A GIFT, AND
SHALL BE INCLUDED IN COMPUTING THE AMOUNT OF GIFTS MADE DURING THE
CALENDAR YEAR."  TAXPAYER CLAIMS THAT MISS DESMARE'S RELINQUISHMENT OF
HER MARITAL RIGHTS CONSTITUTED "ADEQUATE AND FULL CONSIDERATION IN
MONEY OR MONEY'S WORTH."  THE COLLECTOR, RELYING ON THE CONSTRUCTION OF
A LIKE PHRASE IN THE ESTATE TAX, CONTENDS THAT RELEASE OF MARITAL
RIGHTS DOES NOT FURNISH SUCH "ADEQUATE AND FULL CONSIDERATION." 

WE PUT TO ONE SIDE THE ARGUMENT THAT IN ANY EVENT MISS DESMARE'S
CONTINGENT INTEREST IN HER HUSBAND'S PROPERTY HAD TOO MANY VARIABLES TO
BE REDUCIBLE TO DOLLARS AND CENTS, AND THAT ANY ATTEMPT TO TRANSLATE IT
INTO "MONEY'S WORTH" WAS "MERE SPECULATION BEARING THE DELUSIVE
APPEARANCE OF ACCURACY."  HUMES V. UNITED STATES, 276 U.S. 487, 494. 
WE SHALL GO AT ONCE TO THE MAIN ISSUE. 

THE GUIDING LIGHT IS WHAT WAS SAID IN ESTATE OF SANFORD V.
COMMISSIONER, 308 U.S. 39, 44:  "THE GIFT TAX WAS SUPPLEMENTARY TO THE
ESTATE TAX.  THE TWO ARE IN PARI MATERIA AND MUST BE CONSTRUED
TOGETHER."  THE PHRASE ON THE MEANING OF WHICH DECISION MUST LARGELY
TURN - THAT IS, TRANSFERS FOR OTHER THAN "AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH" - CAME INTO THE GIFT TAX BY
WAY OF ESTATE TAX PROVISIONS.  IT FIRST APPEARED IN THE REVENUE ACT OF
1926.  SECTION 303(A)(1) OF THAT ACT, 44 STAT. 9, 72, ALLOWED
DEDUCTIONS FROM THE VALUE OF THE GROSS ESTATE OF CLAIMS AGAINST THE
ESTATE TO THE EXTENT THAT THEY WERE BONA FIDE AND INCURRED "FOR AN
ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH."  IT IS
IMPORTANT TO NOTE THAT THE LANGUAGE OF PREVIOUS ACTS WHICH MADE THE
TEST "FAIR CONSIDERATION" WAS THUS CHANGED AFTER COURTS HAD GIVEN "FAIR
CONSIDERATION" AN EXPANSIVE CONSTRUCTION. 

THE FIRST MODERN ESTATE TAX LAW HAD INCLUDED IN THE GROSS ESTATE
TRANSFERS IN CONTEMPLATION OF, OR INTENDED TO TAKE EFFECT IN POSSESSION
OR ENJOYMENT AT, DEATH, EXCEPT "A BONA FIDE SALE FOR A FAIR
CONSIDERATION IN MONEY OR MONEY'S WORTH."  SEC. 202(B), REVENUE ACT OF
1916, 39 STAT. 756, 777.  DOWER RIGHTS AND OTHER MARITAL PROPERTY
RIGHTS WERE INTENDED TO BE INCLUDED IN THE GROSS ESTATE, SINCE THEY
WERE CONSIDERED MERELY AN EXPECTATION, AND IN 1918 CONGRESS
SPECIFICALLY INCLUDED THEM.  SEC. 402(B), 40 STAT. 1057, 1097.  THIS
PROVISION WAS FOR THE PURPOSE OF CLARIFYING THE EXISTING LAW.  H. REP.
NO. 767, 65TH CONG., 2D SESS., P. 21.  IN 1924 CONGRESS LIMITED
DEDUCTIBLE CLAIMS AGAINST AN ESTATE TO THOSE SUPPORTED BY "A FAIR
CONSIDERATION IN MONEY OR MONEY'S WORTH," SEC. 303(A)(1), 43 STAT. 253,
305, EMPLOYING THE SAME STANDARD APPLIED TO TRANSFERS IN CONTEMPLATION
OF DEATH, H. REP. NO. 179, 68TH CONG., 1ST SESS., PP. 28, 66.  SIMILAR
LANGUAGE WAS USED IN THE GIFT TAX, FIRST IMPOSED BY THE 1924 ACT, BY
PROVIDING, "WHERE PROPERTY IS SOLD OR EXCHANGED FOR LESS THAN A FAIR
CONSIDERATION IN MONEY OR MONEY'S WORTH" THE EXCESS SHALL BE DEEMED A
GIFT.  SEC. 320, 43 STAT. 253, 314. 

THE TWO TYPES OF TAX THUS FOLLOWED A SIMILAR COURSE, LIKE PROBLEMS
AND PURPOSES BEING EXPRESSED IN LIKE LANGUAGE.  IN THIS SITUATION,
COURTS HELD THAT "FAIR CONSIDERATION" INCLUDED RELINQUISHMENT OF DOWER
RIGHTS.  FERGUSON V. DICKSON, 300 F. 961; AND SEE MCCAUGHN V. CARVER,
19 F.2D 126; STUBBLEFIELD V. UNITED STATES, 6 F.SUPP.  440.  CONGRESS
WAS THUS LED, AS WE HAVE INDICATED, TO SUBSTITUTE IN THE 1926 REVENUE
ACT, THE WORDS "ADEQUATE AND FUL CONSIDERATION" IN ORDER TO NARROW THE
SCOPE OF TAX EXEMPTIONS.  SEE TAFT V. COMMISSIONER, 304 U.S. 351, 356. 
WHEN THE GIFT TAX WAS RE-ENACTED IN THE 1932 REVENUE ACT, THE
RESTRICTIVE PHRASE "ADEQUATE AND FULL CONSIDERATION" AS FOUND IN THE
ESTATE TAX WAS TAKEN OVER BY THE DRAFTSMAN. 

TO BE SURE, IN THE 1932 ACT CONGRESS SPECIFICALLY PROVIDED THAT
RELINQUISHMENT OF MARITAL RIGHTS FOR PURPOSES OF THE ESTATE TAX SHALL
NOT CONSTITUTE "CONSIDERATION IN MONEY OR MONEY'S WORTH."  THE
COMMITTEES OF CONGRESS REPORTED THAT IF THE VALUE OF RELINQUISHED
MARITAL INTERESTS 'MAY, IN WHOLE OR IN PART, CONSTITUTE A CONSIDERATION
FOR AN OTHERWISE TAXABLE TRANSFER (AS HAS BEEN HELD TO BE SO), OR AN
OTHERWISE UNALLOWABLE DEDUCTION FROM THE GROSS ESTATE, THE EFFECT
PRODUCED AMOUNTS TO A SUBVERSION OF THE LEGISLATIVE INTENT  ..."  H.
REP. NO. 708, 72D CONG., 1ST SESS., P. 47; S. REP. NO. 665, 72D CONG.,
1ST SESS., P. 50.  PLAINLY, THE EXPLICITNESS WAS ONE OF CAUTIOUS
REDUNDANCY TO PREVENT "SUBVERSION OF THE LEGISLATIVE INTENT."  WITHOUT
THIS SPECIFIC PROVISION, CONGRESS UNDOUBTEDLY INTENDED THE REQUIREMENT
OF "ADEQUATE AND FULL CONSIDERATION" TO EXCLUDE RELINQUISHMENT OF DOWER
AND OTHER MARITAL RIGHTS WITH RESPECT TO THE ESTATE TAX.  COMMISSIONER
V. BRISTOL, 121 F.2D 129; SHEETS V. COMMISSIONER, 95 F.2D 727. 

WE BELIEVE THAT THERE IS EVERY REASON FOR GIVING THE SAME WORDS IN
THE GIFT TAX THE SAME READING.  CORRELATION OF THE GIFT TAX AND THE
ESTATE TAX STILL REQUIRES LEGISLATIVE INTERVENTION.  COMMISSIONER V.
PROUTY, 115 F.2D 331, 337; WARREN, CORRELATION OF GIFT AND ESTATE TAXES
(1941) 55 HARV. L. REV. 1; GRISWOLD, A PLAN FOR THE COORDINATION OF THE
INCOME, ESTATE AND GIFT TAX PROVISIONS (1942) 56 HARV. L. REV. 337. 
BUT TO INTERPRET THE SAME PHRASES IN THE TWO TAXES CONCERNING THE SAME
SUBJECT MATTER IN DIFFERENT WAYS WHERE OBVIOUS REASONS DO NOT COMPEL
DIVERGENT TREATMENT IS TO INTRODUCE ANOTHER AND NEEDLESS COMPLEXITY
INTO THIS ALREADY IRKSOME SITUATION.  HERE STRONG REASONS URGE
IDENTICAL CONSTRUCTION.  TO HOLD OTHERWISE WOULD ENCOURAGE TAX
AVOIDANCE.  COMMISSIONER V. BRISTOL, SUPRA AT 136; 2 PAUL, ESTATE AND
GIFT TAXATION (1942) P. 1118.  AND IT WOULD NOT FULFILL THE PURPOSE OF
THE GIFT TAX IN DISCOURAGING FAMILY SETTLEMENTS SO AS TO AVOID HIGH
INCOME SURTAXES.  H. REP. NO. 708, 72D CONG., 1ST SESS., P. 28; S. REP.
NO. 665, 72D CONG., 1ST SESS., P. 40.  THERE IS THUS EVERY REASON IN
THIS CASE TO CONSTRUE THE PROVISIONS OF BOTH TAXES HARMONIOUSLY. 
ESTATE OF SANFORD V. COMMISSIONER, SUPRA.  FN1 AFFIRMED. 

FN1  TREASURY REGULATIONS 79(1936 ED.)  ART.  8 IS INAPPLICABLE.  TO
FIND THAT THE TRANSACTION WAS "MADE IN THE ORDINARY COURSE OF BUSINESS"
IS TO ATTRIBUTE TO THE TREASURY A STRANGE USE OF ENGLISH. 

MR. JUSTICE ROBERTS DISSENTS. 

MR. JUSTICE REED, DISSENTING. 

THIS CASE DIFFERS FROM COMMISSIONER V. WEMYSS, ANTE, P. 303.  WHETHER
THE TRANSFEROR OF THE SUMS PAID FOR THE RELEASE OF DOWER AND OTHER
MARITAL RIGHTS, RECEIVED ADEQUATE AND FULL CONSIDERATION IN MONEY AND
MONEY'S WORTH IS A QUESTION OF FACT.  THE AGREEMENT RECITES THAT THE
PARTIES CONTEMPLATE MARRIAGE AND PROVIDES THAT THE TRUST SHALL BE SET
UP ONLY IN THE EVENT OF AND FOLLOWING THE MARRIAGE.  PETITIONER WAS
OBLIGATED TO CREATE THE TRUST UPON CONSIDERATION OF THE RELINQUISHMENT
OF MARITAL RIGHTS AND DID SO, AND HENCE THIS IS NOT A CASE INVOLVING
MARRIAGE ALONE AS CONSIDERATION.  THROUGH THE TABLES OF MORTALITY, THE
VALUE OF A SURVIVOR'S RIGHT IN A FIXED SUM RECEIVABLE AT THE DEATH OF A
SECOND PARTY MAY BE ADEQUATELY CALCULATED.  BY ADOPTING PRESENT VALUE
AS THE ACCEPTED FUTURE VALUE, THE UNCERTAINTY INHERENT IN FLUCTUATIONS
OF AN ESTATE'S VALUE IS THEORETICALLY ELIMINATED.  THE TRIAL COURT THUS
FOUND THE PRESENT VALUE OF THE RELEASE OF THE TAXPAYER'S ESTATE FROM
THE WIFE'S SURVIVORSHIP RIGHTS LARGELY EXCEEDED THE AMOUNT PAID BY THE
TAXPAYER AND THAT THE TRANSACTIONS BETWEEN THE PARTIES WERE MADE IN
GOOD FAITH FOR BUSINESS REASONS AND NOT AN ATTEMPT TO EVADE OR AVOID
TAXES.  THUS THE DISTRICT COURT FINDINGS BRING THIS TRANSACTION WITHIN
THE EXPRESS LANGUAGE OF THE APPLICABLE TREASURY REGULATION.  FN1
MERRILL V. FAHS, 51 F.SUPP.  120.  ITS DETERMINATION, WE THINK, ALSO
MAKES IT CLEAR THAT THE HUSBAND'S ESTATE RECEIVED PRACTICAL ADVANTAGES
OF VALUE IN EXCESS OF THE COST PAID.  SEE HENDERSON V. USHER, 125 FLA.
709, 727, 170 SO. 846. 

THE QUESTION OF THE TAXABILITY AS GIFTS OF TRANSFERS TO SPOUSES IN
CONSIDERATION OF THE RELEASE OF MARITAL RIGHTS HAD BEEN A MATTER OF
DISPUTE IN COURTS BEFORE THE PASSAGE OF THE REVENUE ACT OF 1932, SEC.
503, 47 STAT. 169, 247.  FN2  CONGRESS IN THE 1932 ACT, SEC. 804,
DECLARED THAT A TRANSFER OF MARITAL RIGHTS SHOULD NOT BE "CONSIDERATION
IN 'MONEY OR MONEY'S WORTH'" UNDER THE ESTATE TAX PROVISIONS.  THUS
CONGRESS PUT BEYOND ANY QUESTION THE LIABILITY OF TRANSFERORS FOR
ESTATE TAXES WHERE MARITAL RIGHTS WERE THE CONSIDERATION FOR THE
TRANSFER.  ON THE OTHER HAND, IN THE SAME 1932 REVENUE ACT THE LANGUAGE
OF THE GIFT TAX SECTION, SEC. 503, DID NOT HAVE A PROVISION FORBIDDING
THE VALUATION OF MARITAL RIGHTS.  CONSEQUENTLY, SEC. 503 AS INTERPRETED
BY REGULATIONS 79, ART. 8, PERMITS THE TREATMENT OF THE RELINQUISHMENT
OF SUCH RIGHTS, NOT DONATIVE IN INTENT OR EFFECT, AS "MONEY'S WORTH"
CONSIDERATION FOR PROPERTY TRANSFERRED.  IT SEEMS TO US CLEAR THAT WITH
THE JUDICIAL HISTORY OF THE DIFFICULTIES IN ESTATE AND GIFT TAXES AS TO
THE TRANSFER OF MARITAL RIGHTS, WHEN CONGRESS EXPRESSLY PROVIDED THAT
RELINQUISHMENT OF DOWER, CURTESY OR OTHER STATUTORY ESTATE WAS NOT
"CONSIDERATION" FOR ESTATE TAX PURPOSES AND LEFT THE GIFT TAX PROVISION
WITHOUT SUCH A LIMITATION, IT INTENDED THAT THESE RIGHTS BE ACCORDED A
DIFFERENT TREATMENT UNDER THESE SECTIONS.  THIS HAS BEEN THE
DETERMINATION OF THE TAX COURT.  FN3 

IN OUR VIEW THIS JUDGMENT SHOULD BE REVERSED. 

FN1  TREASURY REGULATIONS 79(1936 ED.): 

"ART. 8.  TRANSFERS FOR A CONSIDERATION IN MONEY OR MONEY'S WORTH.  -
TRANSFERS REACHED BY THE STATUTE ARE NOT CONFINED TO THOSE ONLY WHICH,
BEING WITHOUT A VALUABLE CONSIDERATION, ACCORD WITH THE COMMON LAW
CONCEPT OF GIFTS, BUT EMBRACE AS WELL SALES, EXCHANGES, AND OTHER
DISPOSITIONS OF PROPERTY FOR A CONSIDERATION IN MONEY OR MONEY'S WORTH
TO THE EXTENT THAT THE VALUE OF THE PROPERTY TRANSFERRED BY THE DONOR
EXCEEDS THE VALUE OF THE CONSIDERATION GIVEN THEREFOR.  HOWEVER, A
SALE, EXCHANGE, OR OTHER TRANSFER OF PROPERTY MADE IN THE ORDINARY
COURSE OF BUSINESS (A TRANSACTION WHICH IS BONA FIDE, AT ARM'S LENGTH,
AND FREE FROM ANY DONATIVE INTENT), WILL BE CONSIDERED AS MADE FOR AN
ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH.  A
CONSIDERATION NOT REDUCIBLE TO A MONEY VALUE, AS LOVE AND AFFECTION,
PROMISE OF MARRIAGE, ETC., IS TO BE WHOLLY DISREGARDED, AND THE ENTIRE
VALUE OF THE PROPERTY TRANSFERRED CONSTITUTES THE AMOUNT OF THE GIFT." 

FN2  FERGUSON V. DICKSON, 300 F. 961; MCCAUGHN V. CARVER, 19 F.2D
126; STUBBLEFIELD V. UNITED STATES, 79 CT. CLS. 268, 6 F.SUPP.  440. 

FN3  BRISTOL V. COMMISSIONER, 42 B.T.A. 263; JONES V. COMMISSIONER, 1
T.C. 1207; WEMYSS V. COMMISSIONER, 2 T.C. 876, 881. 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS JOIN IN THIS DISSENT. 
..END :


















DRUMMOND V. UNITED STATES, 324 U.S. 316 


NO. 520.  ARGUED FEBRUARY 7, 8, 1945.  - DECIDED MARCH 5, 1945.  - 144
F.2D 375, AFFIRMED. 


1.  A SUIT BY THE UNITED STATES TO ENFORCE RESTRICTIONS ON INDIAN
LANDS IS NOT BARRED BY A PRIOR JUDGMENT IN PROCEEDINGS IN WHICH THE
UNITED STATES WAS NOT FORMALLY A PARTY, BUT IN WHICH THE SECRETARY OF
THE INTERIOR HAD AUTHORIZED EMPLOYMENT AND APPROVED THE FEES OF COUNSEL
FOR THE INDIAN.  P. 317. 

2.  A MORTGAGE OF LANDS INHERITED FROM AN OSAGE ALLOTTEE, GIVEN BY
THE HEIR PRIOR TO THE STATE COURT DECREE ADJUDGING HEIRSHIP, WAS
INVALID UNDER SEC. 7 OF THE ACT OF APRIL 18, 1912, EVEN THOUGH THE HEIR
HAD A CERTIFICATE OF COMPETENCY AT THE TIME OF THE EXECUTION OF THE
MORTGAGE.  P. 318. 

3.  WITHIN THE MEANING OF SEC. 7 OF THE ACT OF APRIL 18, 1912, LANDS
INHERITED FROM AN OSAGE ALLOTTEE, THOUGH AN INCOMPETENT, ARE "TURNED
OVER" TO THE HEIR WHEN THE PROBATE COURT DECREES HEIRSHIP.  P. 319. 

DRUMMOND V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 323 U.S. 699, TO REVIEW THE REVERSAL OF A JUDGMENT
AGAINST THE UNITED STATES IN A SUIT BROUGHT BY IT TO CANCEL A MORTGAGE
AND TO QUIET TITLE TO LANDS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

MAMIE FLETCHER PITTS, A FULL-BLOOD OSAGE INDIAN, DIED ON MAY 24,
1937, LEAVING LAND ALLOTTED TO HER AS A MEMBER OF HER TRIBE.  HER
HUSBAND, GEORGE PITTS, ALSO A FULLBLOOD OSAGE, WAS APPOINTED
ADMINISTRATOR OF HER ESTATE IN APPROPRIATE PROCEEDINGS IN AN OKLAHOMA
COURT.  HIS CERTIFICATE OF COMPETENCY WHICH HAD BEEN GRANTED HIM IN
1910, SEC. 2, SEVENTH, ACT OF JUNE 28, 1906, 34 STAT. 539, 542, WAS
REVOKED BY THE SECRETARY OF THE INTERIOR ON JUNE 24, 1938.  ON
SEPTEMBER 9, 1938, HE WAS ADJUDGED TO BE THE SOLE HEIR BY THE OKLAHOMA
COURT, WHICH ENTERED AN ORDER DIRECTING DISTRIBUTION OF MAMIE'S ESTATE
TO HIM.  PRIOR TO THAT ORDER, HOWEVER, ON JULY 12, 1937, PITTS HAD
EXECUTED A MORTGAGE OF HIS WIFE'S LAND TO DRUMMOND, THE PETITIONER, TO
SECURE A CONTEMPORANEOUS PROMISSORY NOTE.  IT IS THE VALIDITY OF THIS
MORTGAGE, UNDER THE RELEVANT INDIAN LEGISLATION, WHICH IS IN
CONTROVERSY. 

PETITIONER IN 1939 INSTITUTED A SUIT AGAINST PITTS IN THE STATE COURT
TO RECOVER JUDGMENT ON THE NOTE AND TO FORECLOSE THE MORTGAGE.  IN THAT
LITIGATION PITTS, ASSERTING THE INVALIDITY OF THE MORTGAGE, WAS
REPRESENTED BY A PRIVATE ATTORNEY.  FORECLOSURE WAS DECREED, AND THIS
WAS UPHELD IN THE SUPREME COURT OF OKLAHOMA.  PITTS V. DRUMMOND, 189
OKLA. 574, 118 P.2D 244.  FN1  THEREAFTER, THE UNITED STATES BROUGHT
THE PRESENT ACTION IN ITS OWN RIGHT AND ON BEHALF OF PITTS TO CANCEL
THE MORTGAGE AND TO QUIET TITLE.  THE PETITIONER SUCCEEDED IN THE
DISTRICT COURT, BUT THE JUDGMENT WAS REVERSED BY THE CIRCUIT COURT OF
APPEALS FOR THE TENTH CIRCUIT.  144 F.2D 375.  THE CONFLICT IN RESULT
BETWEEN THE DECISION BELOW AND THE EARLIER DECISION OF THE OKLAHOMA
SUPREME COURT LED US TO GRANT CERTIORARI, 323 U.S. 699. 

A CLAIM OF RES JUDICATA MEETS US AT THE OUTSET.  PETITIONER CONTENDS
THAT THE ADJUDICATION IN PITTS V. DRUMMOND, SUPRA, BINDS THE UNITED
STATES.  TO ESCAPE FROM THE RULE THAT THE UNITED STATES IS NOT
PRECLUDED FROM ENFORCING RESTRICTIONS ON INDIAN LANDS BY ANY PRIOR
JUDGMENT IN PROCEEDINGS TO WHICH IT WAS A STRANGER, BOWLING V. UNITED
STATES, 233 U.S. 528, 534-535; UNITED STATES V. HELLARD, 322 U.S. 363,
366; AND SEE COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1941) 369,
PETITIONER RELIES ON THE AUTHORIZATION BY THE SECRETARY OF THE INTERIOR
OF THE EMPLOYMENT OF PITTS' ATTORNEY AND THE APPROVAL OF THE LATTER'S
FEE.  IF THE UNITED STATES IN FACT EMPLOYS COUNSEL TO REPRESENT ITS
INTEREST IN A LITIGATION OR OTHERWISE ACTIVELY AIDS IN ITS CONDUCT, IT
IS PROPERLY ENOUGH DEEMED TO BE A PARTY AND NOT A STRANGER TO THE
LITIGATION AND BOUND BY ITS RESULTS.  COMPARE UNITED STATES V.
CANDELARIA, 271 U.S. 432; 16 F.2D 559, WITH LOGAN V. UNITED STATES, 58
F.2D 697.  BUT TO BIND THE UNITED STATES WHEN IT IS NOT FORMALLY A
PARTY, IT MUST HAVE A LABORING OAR IN A CONTROVERSY.  THIS IS NOT TO BE
INFERRED MERELY BECAUSE THE SECRETARY OF THE INTERIOR ENABLES AN
INCOMPETENT INDIAN TO PROTECT HIS INTERESTS. 

THIS BRINGS US TO THE MERITS OF THE CONTROVERSY - THE VALIDITY OF THE
MORTGAGE GIVEN BY PITTS AS SECURITY FOR A LOAN BEFORE THE OKLAHOMA
COURT ADJUDGED HIM TO BE HIS WIFE'S HEIR.  THE DECISION TURNS ON THE
CONSTRUCTION OF THE ACT OF APRIL 18, 1912, AND MORE PARTICULARLY ON
SECS. 6 AND 7, 37 STAT. 86.  SECTION 6, SO FAR AS HERE RELEVANT,
REMOVES RESTRICTIONS ON ALIENATION OF LAND INHERITED BY HEIRS WHO HAVE
CERTIFICATES OF COMPETENCY OR WHO ARE NOT TRIBAL MEMBERS.  AFTER
PROVIDING THAT ALLOTMENT LANDS OR FUNDS SHALL NOT BE LIABLE OR
SUBJECTED TO ANY CLAIM ARISING PRIOR TO THE GRANTING OF A CERTIFICATE
OF COMPETENCY, SEC. 7 CONTINUES:  "THAT NO LANDS OR MONEYS INHERITED
FROM OSAGE ALLOTTEES SHALL BE SUBJECT TO OR BE TAKEN OR SOLD TO SECURE
THE PAYMENT OF ANY INDEBTEDNESS INCURRED BY SUCH HEIR PRIOR TO THE TIME
SUCH LANDS AND MONEYS ARE TURNED OVER TO SUCH HEIRS."  THESE PROVISIONS
HAVE THE CHARACTERISTIC INFELICITY OF DRAFTSMANSHIP IN INDIAN
LEGISLATION WHICH IS SUCH A FERTILE BREEDER OF WASTEFUL LITIGATION. 
BUT THE LANGUAGE, TOGETHER WITH THE LIGHT SHED BY THE RELEVANT SENATE
REPORT, MAKES THE MEANING CLEAR ENOUGH. 

SINCE PITTS INCURRED THE DEBT TO PETITIONER BEFORE THE PROBATE COURT
ADJUDGED HIM TO BE THE HEIR, THE TRANSACTION COMES CLEARLY WITHIN THE
INVALIDATION OF SEC. 7.  PETITIONER CONTENDS THAT EVEN THOUGH PITTS
INCURRED THE DEBT TO HIM BEFORE THE PROBATE COURT DECREED HEIRSHIP,
POWER TO MORTGAGE THE LAND IS AUTHORIZED BY SEC. 6 WHICH REMOVED
RESTRICTIONS ON LAND INHERITED BY AN HEIR HAVING A CERTIFICATE OF
COMPETENCY WHICH PITTS DID HAVE AT THE TIME OF THE MORTGAGE
TRANSACTION.  BUT THIS RESULT WOULD RENDER MEANINGLESS THE SENTENCE WE
HAVE QUOTED FROM SEC. 7 AND DISREGARD THE PURPOSE OF SEC. 7 AS
AUTHORITATIVELY STATED IN THE SENATE REPORT PROPOSING THE LEGISLATION. 
THE OBJECT OF SEC. 7, ACCORDING TO THE SENATE COMMITTEE, WAS THAT "NO
LAND OR MONEY INHERITED SHALL BE SUBJECT TO ANY PRIOR INDEBTEDNESS." 
S. REP. NO. 127, 62D CONG., 1ST SESS., P. 2.  SINCE THE SENTENCE
DEALING WITH THE INVALIDATION IS PRECEDED BY ONE WHICH GIVES FULL
PROTECTION AGAINST DEBTS INCURRED PRIOR TO THE ISSUANCE OF A
CERTIFICATE OF COMPETENCY, THE SECOND SENTENCE WOULD HAVE NO FUNCTION
WHATEVER UNLESS IT BE CONSTRUED TO RENDER UNENFORCEABLE ANY CLAIMS
AGAINST INHERITED PROPERTY ARISING AT ANY TIME BEFORE IT WAS "TURNED
OVER" TO AN HEIR.  AND THIS BRINGS US TO THE FINAL ARGUMENT. 

IT IS URGED THAT SEC. 7 IS INAPPLICABLE BECAUSE MAMIE'S LAND WAS
NEVER "TURNED OVER" TO PITTS BUT CAME TO HIM AUTOMATICALLY ON THE DEATH
OF HIS WIFE.  THE BASIS OF THIS ARGUMENT IS THAT, INASMUCH AS MAMIE WAS
AN INCOMPETENT, HER ESTATE WAS NOT SUBJECT TO ANY CLAIMS AGAINST HER
AND THEREFORE NECESSARILY WOULD COME TO HER HEIR UNBURDENED.  BUT SEC.
7, IN SPEAKING OF TURNING OVER LANDS TO AN HEIR, WAS SURELY NOT
CONCERNED WITH THE MYSTERIES OF SEISIN.  IT DEALT WITH THE
PRACTICALITIES OF ASCERTAINING OWNERSHIP THROUGH INHERITANCE BY
APPROPRIATE PROCEEDINGS.  TO THAT END SEC. 3 OF THE ACT OF 1912
CONFERRED PROBATE JURISDICTION UPON THE STATE COURTS.  IN RE THOMPSON'S
ESTATE, 179 OKLA. 240, 65 P.2D 442.  THE STATUTE, THAT IS, HAD IN MIND
THE JUDICIAL PROCESS OF ASCERTAINING THE HEIR AND THE COMPLETION OF
THAT PROCESS BY COURT ACTION WHEREBY THE LAND WAS "TURNED OVER" TO THE
ASCERTAINED HEIR.  AND SO HERE, WHEN THE OKLAHOMA COURT DECREED THAT
PITTS WAS MAMIE'S HEIR, THE LAND IN THE SENSIBLE USE OF THE PHRASE
"TURNED OVER" WAS TURNED OVER TO PITTS. 

OTHER ARGUMENTS HAVE NOT BEEN OVERLOOKED BUT THEY NEED NOT BE
SEPARATELY CONSIDERED.  AFFIRMED. 

FN1  TO COMPLETE THE HISTORY OF THIS LITIGATION WE NOTE THAT
CERTIORARI WAS DENIED, 315 U.S. 814. 

MR. JUSTICE JACKSON DISSENTS. 
..END :





















DOW CO. V. HALLIBURTON CO., 324 U.S. 320 


ARGUED FEBRUARY 6, 1945.  - DECIDED MARCH 5, 1945.  - 139 F.2D 473,
AFFIRMED. 


1.  TO RESOLVE A CONFLICT BETWEEN CIRCUIT COURTS OF APPEALS AS TO THE
VALIDITY OF A PATENT, THIS COURT WILL DETERMINE INDEPENDENTLY THE
FACTUAL ISSUE OF VALIDITY.  P. 322. 

2.  GREBE AND SANFORD PATENT NO. 1,877,504, CLAIMS 1, 5, 7, 8 AND 9,
FOR A METHOD OF TREATING DEEP WELLS TO INCREASE PRODUCTION, HELD
INVALID FOR WANT OF INVENTION.  PP. 324, 331. 

IN THE DESCRIBED PROCESS THERE WAS NO PATENTABLE INVENTION IN ANY OF
THE FOLLOWING CLAIMS OR ANY COMBINATION THEREOF:  (1) ADDITION OF AN
INHIBITING AGENT TO THE HYDROCHLORIC ACID SOLUTION TO PREVENT
CORROSION; (2) USE OF A DILUTE RATHER THAN A CONCENTRATED HYDROCHLORIC
ACID SOLUTION; (3) USE OF THE ORDINARY PUMP TUBE INSTEAD OF A SPECIALLY
PROTECTED SUPPLY PIPE TO INTRODUCE THE ACID INTO THE WELL. 

3.  THE APPLICATION OF AN OLD PROCESS TO A NEW AND ANALOGOUS USE
LACKS THE VERY ESSENCE OF AN INVENTION.  P. 327. 

4.  THE MERE ADDITION OF WATER TO DILUTE A KNOWN CHEMICAL SOLUTION
DOES NOT ENTITLE ONE TO A PATENT MONOPOLY, AT LEAST UNLESS A DEFINITE
DILUTION POINT OR RANGE IS DISCOVERED CORRESPONDING TO A PHYSICAL
PHENOMENON.  P. 329. 

5.  THE MERE SUBSTITUTION OF EQUIVALENTS WHICH DO SUBSTANTIALLY THE
SAME THING IN THE SAME WAY, EVEN THOUGH BETTER RESULTS MAY BE PRODUCED,
IS NOT SUCH AN INVENTION AS WILL SUSTAIN A PATENT.  P. 330. 

6.  THAT A CLAIMED INVENTION FILLED A LONG FELT WANT AND HAS BEEN A
COMMERCIAL SUCCESS IS RELEVANT ONLY WHEN THE QUESTION OF INVENTION IS
OTHERWISE IN DOUBT.  P. 330. 

DOW CHEMICAL CO. V. HALLIBURTON OIL WELL CEMENTING CO. 

NO. 50.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT* . 

*TOGETHER WITH NO. 61, HALLIBURTON OIL WELL CEMENTING CO. V. DOW
CHEMICAL CO., ALSO ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE SIXTH CIRCUIT. 

CERTIORARI, 322 U.S. 719, ON CROSS-PETITIONS BY A PATENT OWNER
(PETITIONER IN NO. 50) AND AN ALLEGED INFRINGER (CROSS-PETITIONER IN
NO. 61), TO REVIEW THE AFFIRMANCE OF A DECREE HOLDING INVALID CERTAIN
CLAIMS OF A PATENT AND DISMISSING THE COMPLAINT IN A SUIT FOR
INFRINGEMENT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN ISSUE HERE IS THE VALIDITY OF UNITED STATES PATENT NO. 1,877,504,
RELATING TO "THE TREATMENT OF DEEP WELLS, SUCH AS OIL, GAS, BRINE OR
WATER WELLS, TO INCREASE THE OUTPUT THEREFROM," ISSUED TO JOHN J. GREBE
AND ROSS T. SANFORD ON SEPTEMBER 12, 1932. 

PETITIONER, THE OWNER OF THE PATENT, BROUGHT THIS SUIT AGAINST
RESPONDENT FOR ALLEGED INFRINGEMENT.  BOTH THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN AND THE SIXTH CIRCUIT COURT OF APPEALS
HELD THE PATENT INVALID FOR WANT OF INVENTION AND DENIED RELIEF.  139
F.2D 473.  PREVIOUSLY THE TENTH CIRCUIT COURT OF APPEALS, IN REVERSING
THE JUDGMENT OF THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OKLAHOMA, HAD HELD THE PATENT VALID AND INFRINGED IN A SUIT BROUGHT BY
PETITIONER AGAINST ANOTHER PARTY.  DOW CHEMICAL CO. V. WILLIAMS BROS.
WELL TREATING CORP., 81 F.2D 495, CERT. DENIED, 298 U.S. 690.  THE
CONFLICTING VIEWS OF THE APPELLATE COURTS CONCERNING THE VALIDITY OF
THE SAME PATENT LED US TO GRANT CERTIORARI IN THIS CASE, 322 U.S. 719,
AND OBLIGE US TO DECIDE INDEPENDENTLY THE FACTUAL ISSUE OF VALIDITY. 
UNIVERSAL OIL CO. V. GLOBE CO., 322 U.S. 471, 473. 

THE STATED OBJECT OF THE GREBE-SANFORD PATENT IS "TO COUNTERACT SOME
PREVENTABLE NATURAL CAUSES FOR THE DECLINE OF YIELD OF A WELL" WHERE
THE WELL HAS BEEN DRILLED INTO A LIMESTONE OR OTHER CALCAREOUS
FORMATION.  AS OIL IS PUMPED FROM A WELL, THE UNDERGROUND FLOW TO THE
WELL DECREASES AND THE YIELD DECLINES UNTIL PUMPING IS NO LONGER
PROFITABLE.  YET IT IS KNOWN THAT WHEN THAT POINT IS REACHED THERE
OFTEN REMAINS EMBEDDED IN THE ROCK FORMATION A GREAT DEAL OF OIL
UNRECOVERABLE BY ORDINARY PROCESSES.  MANY METHODS HAVE BEEN SUGGESTED
TO RECOVER THIS HIDDEN OIL.  THE FORCING OF WATER OR GAS INTO THE ROCK
FORMATION, THE HEATING OF THE SURROUNDING ROCK AND THE USE OF
EXPLOSIVES HAVE ALL BEEN PROPOSED BUT FOUND WANTING IN ONE WAY OR
ANOTHER. 

EVENTUALLY, HOWEVER, THE IDEA WAS CONCEIVED OF USING ACID TO DISSOLVE
THE LIMESTONE, THUS OPENING CHANNELS THROUGH WHICH THE OIL COULD FLOW
INTO THE WELL.  THIS IDEA FIRST APPEARS TO HAVE BEEN DEVELOPED IN
UNITED STATES PATENT NO. 556,669, ISSUED ON MARCH 17, 1896, TO HERMAN
FRASCH, WITH A HALF INTEREST BEING ASSIGNED TO JOHN W. VAN DYKE.  THE
ESSENCE OF THIS PATENT WAS THE INTRODUCTION INTO THE OIL WELL OF A
LARGE SOLUTION OF HYDROCHLORIC ACID UNDER PRESSURE, WITH FRESH WATER
BEING ADDED LATER TO FORCE THE ACID FURTHER INTO THE LIMESTONE.  FRASCH
RECOMMENDED THE USE OF COMMERCIAL HYDROCHLORIC ACID CONTAINING FROM 30%
TO 40% BY WEIGHT OF THE ACID GAS HCL; HE FURTHER RECOMMENDED THAT THE
ACID REMAIN IN THE WELL FOR TWELVE HOURS.  A SUITABLY ARRANGED PACKER
WAS TO BE USED TO CONFINE THE ACID TO THE LOWER OR OIL-YIELDING PORTION
OF THE WELL HOLE. 

FRASCH ALSO RECOGNIZED THAT THE HYDROCHLORIC ACID WAS LIKELY TO
CORRODE THE METAL WELL EQUIPMENT.  HENCE THE PATENT SUGGESTED THAT THE
REGULAR WELL TUBING BE REMOVED AND THAT AN ENAMELED OR LEAD-LINED PIPE
BE INSERTED TO CONDUCT THE ACID DOWN INTO THE WELL, "OR IT MAY BE
OTHERWISE MADE PROOF AGAINST CORROSION."  AN ADDITIONAL SUGGESTION WAS
THAT AN ALKALINE LIQUID BE INTRODUCED TO NEUTRALIZE THE ACID AFTER IT
HAD PERFORMED ITS FUNCTION. 

FRASCH'S METHOD PROVED SUCCESSFUL IN DISINTEGRATING LIMESTONE ROCK
AND INCREASING THE FLOW OF OIL.  THE RECORD SHOWS THAT AT LEAST
FOURTEEN COMMERCIAL WELLS NEAR LIMA, OHIO, WERE TREATED WITH THIS
PROCESS IN 1895 AND 1896, RESULTING IN SUBSTANTIAL PRODUCTION INCREASES
IN MOST INSTANCES.  WIDE PUBLICITY WAS GIVEN TO THESE OPERATIONS.  BUT
DESPITE THIS SUCCESS, FRASCH AND VAN DYKE SOON DISCONTINUED THEIR WORK
ALONG THESE LINES.  THE REASONS FOR THIS ABANDONMENT ARE NOT CLEARLY
DISCLOSED BY THE RECORD.  RESPONDENT SUGGESTS PERSONAL REASONS ON THE
PART OF FRASCH AND VAN DYKE AND CLAIMS THAT THE RELATIVELY UNDEVELOPED
OIL INDUSTRY AT THAT TIME HAD LITTLE USE FOR SUCH AN INVENTION. 
PETITIONER, HOWEVER, CONTENDS THAT FRASCH'S METHOD WAS SO CUMBERSOME
AND EXPENSIVE THAT IT WAS COMMERCIALLY IMPRACTICABLE; FN1  SUCH IS ALSO
THE REASON ADVANCED BY THE COURT IN THE WILLIAMS BROS. CASE, 81 F.2D AT
496. 

WHATEVER THE REASON FOR THE FAILURE OF THE FRASCH METHOD TO ACHIEVE
WIDE-SPREAD USE, THE GREBE-SANFORD PATENT IN ISSUE CLAIMS TO BE AN
IMPROVED METHOD OF TREATING WELLS WITH A HYDROCHLORIC ACID SOLUTION. 
THE PATENT EXPRESSLY RECOGNIZES THE FRASCH TREATMENT BUT STATES THAT IT
WAS NEVER GENERALLY ADOPTED "DUE TO THE FACT THAT THE ACID ATTACKS THE
METALLIC CASING, PUMP TUBE, ETC. ABOUT AS ACTIVELY AS THE ROCK, AND
CAUSES SERIOUS DAMAGE THERETO."  TO MEET THIS ALLEGED DEFECT, THE GREBE
SANFORD PATENT PROPOSES THE USE OF A HYDROCHLORIC ACID SOLUTION
CONTAINING "A SMALL AMOUNT OF A SUBSTANCE CAPABLE OF INHIBITING ATTACK
OF THE ACID UPON METAL SURFACES  ...  WITH WHICH IT COMES IN CONTACT." 
THE PREFERRED INHIBITING AGENT IS ONE OF SEVERAL SPECIFIED ARSENIC
COMPOUNDS, TO BE ADDED IN THE AMOUNT OF FROM 1% TO 5% OF THE WEIGHT OF
THE SOLUTION.  NUMEROUS OTHER INHIBITORS ARE ALSO SUGGESTED.  THE
PATENT FURTHER STATES THAT "THE STRENGTH OF THE AQUEOUS HYDROCHLORIC
ACID SOLUTION, IN GENERAL BEST ADAPTED TO THE PURPOSE IN HAND, MAY BE
BETWEEN ABOUT 5 PER CENT AND ABOUT 20 PER CENT, AND PREFERABLY SHOULD
BE BETWEEN 10 AND 15 PER CENT ALTHOUGH OTHER CONCENTRATIONS MAY BE
USED, IF DESIRED."  CLAIM 8(CLAIMS 1, 5, 7, 8 AND 9 ARE IN ISSUE) BEST
SUMS UP THE PREFERRED FORM OF THE GREBE-SANFORD PROCESS: 

"THE METHOD FOR INCREASING THE OUTPUT OF AN OIL WELL WHICH COMPRISES
CHARGING INTO THE PUMP TUBE A QUANTITY OF A 5 TO 20 PER CENT
HYDROCHLORIC ACID SOLUTION CONTAINING A RELATIVELY SMALL AMOUNT OF A
CORROSION INHIBITOR, EXPELLING THE ACID FROM THE TUBE INTO THE BORE OF
THE WELL BY APPLYING PRESSURE THEREON, PERMITTING THE ACID TO ACT UPON
THE ROCK FORMATION SURROUNDING THE WELL CAVITY AND WITHDRAWING THE
SPENT ACID." 

THE PARTIES DIFFER AS TO THE PRECISE SCOPE OF THE ALLEGED PATENTABLE
IMPROVEMENT OVER THE FRASCH METHOD OF ACIDIZING WELLS.  RESPONDENT
URGES, AND THE TWO COURTS BELOW HELD, THAT THE SOLE OBJECT OF THE GREBE
SANFORD PROCESS IS SIMPLY TO PROTECT THE WELL EQUIPMENT FROM CORROSION
BY ADDING AN INHIBITING AGENT TO THE HYDROCHLORIC ACID SOLUTION.  FN2
PETITIONER HAS CONSISTENTLY CLAIMED, ON THE OTHER HAND, THAT THE PATENT
SPECIFIES THREE NOVEL POINTS WHICH ELEVATE THE DESCRIBED PROCESS TO THE
LEVEL OF AN INVENTION:  (1) THE ADDITION OF AN INHIBITING AGENT TO THE
HYDROCHLORIC ACID SOLUTION TO PREVENT CORROSION; (2) THE USE OF A
DILUTE RATHER THAN A CONCENTRATED HYDROCHLORIC ACID SOLUTION; AND (3)
THE USE OF THE ORDINARY PUMP TUBE INSTEAD OF A SPECIALLY PROTECTED
SUPPLY PIPE TO INTRODUCE THE ACID INTO THE WELL.  ASSUMING WITHOUT
DECIDING THAT PETITIONER'S VERSION OF THE ALLEGED IMPROVEMENT IS
CORRECT, HOWEVER, WE HOLD THAT NO ONE OF THESE THREE CLAIMS AND NO
COMBINATION THEREOF EVIDENCES THAT DEGREE OF SKILL AND INGENUITY WHICH
CONSTITUTES THE ESSENTIAL INGREDIENT OF A TRUE INVENTION. 

(1)  THE ADDITION OF AN INHIBITING AGENT.  IT IS CLEAR THAT THE GREBE
SANFORD SUGGESTION THAT AN INHIBITING AGENT, PREFERABLY AN ARSENIC
COMPOUND, BE ADDED TO THE HYDROCHLORIC ACID SOLUTION PRESENTS NO
PATENTABLE ADVANCE OVER THE PRIOR ART. PETITIONER MAKES NO CLAIM THAT
THE INHIBITING AGENT IN ANY WAY AFFECTS THE CHEMICAL ACTION OF THE ACID
ON THE LIMESTONE ROCK; IT STATES MERELY THAT THE INHIBITOR ACTS SO AS
TO PREVENT OR RESTRICT THE CORROSIVE EFFECT OF THE ACID ON THE METAL
WELL TUBING AND EQUIPMENT.  BUT LONG BEFORE THE GREBE-SANFORD PROCESS
WAS PATENTED IT HAD BEEN KNOWN THAT INHIBITING AGENTS COULD BE USED TO
PROTECT METALS FROM ACID SOLUTIONS.  MORE PARTICULARLY, IT WAS WELL
KNOWN THAT ARSENIC COMPOUNDS MIXED WITH HYDROCHLORIC ACID SOLUTIONS
ACTED AS EFFECTIVE INHIBITORS AND NUMEROUS PATENTS EMBODYING THAT
PRINCIPLE HAD BEEN GRANTED.  FN3 VARIOUS INHIBITORS WERE AVAILABLE ON
THE MARKET AT THE TIME OF THE CONCEPTION OF THE GREBE-SANFORD PROCESS
AND WERE USED EXTENSIVELY IN THE COMMERCIAL PICKLING OF IRON AND STEEL
PRODUCTS IN ACID SOLUTIONS AND IN THE TRANSPORTATION OF ACIDS IN METAL
CONTAINERS. 

THERE WAS EVIDENCE, MOREOVER, THAT IN 1928 AND 1929 THE GYPSY OIL
COMPANY HAD SUCCESSFULLY USED INHIBITED HYDROCHLORIC ACID TO REMOVE
SCALE FROM CERTAIN OF ITS OIL WELLS DRILLED IN SANDSTONE FORMATIONS. 
THIS PROCESS WAS BASED UPON A REPORT MADE ON BEHALF OF THE MELLON
INSTITUTE AT PITTSBURGH AT THE REQUEST OF THE GYPSY OIL COMPANY, WHICH
HAD BEEN BOTHERED BY THE FORMATION OF SCALE ON THE METAL WELL
EQUIPMENT.  THE REPORT, AFTER NOTING THAT "THE SELECTION OF A SOLVENT
WAS A SIMPLE MATTER" AND THAT "THE COMMERCIAL USE OF INHIBITORS FOR THE
PROTECTION OF METALS IN ACID SOLUTIONS IS NOT NEW," RECOMMENDED THE
REMOVAL OF THE SCALE BY THE USE OF A HYDROCHLORIC ACID SOLUTION TREATED
WITH AN INHIBITOR OBTAINABLE ON THE MARKET.  EVEN IF PETITIONER BE
CORRECT IN LABELING THIS GYPSY OIL COMPANY USE AS AN ABANDONED
EXPERIMENT NOT AMOUNTING TO ANTICIPATION, IT IS SIGNIFICANT THAT THE
USE OF AN INHIBITOR TO CHECK THE HYDROCHLORIC ACID FROM CORRODING THE
METAL WELL EQUIPMENT WHILE ATTACKING THE SCALE SUGGESTED ITSELF WITHOUT
TROUBLE. 

THUS PRIOR TO THE PATENTING OF THE GREBE-SANFORD PROCESS IN 1932 THE
FOLLOWING FACTS WERE MANIFEST AND ELEMENTARY TO ANY ONE SKILLED IN THE
ART:  (A) HYDROCHLORIC ACID WOULD DISSOLVE LIMESTONE AND INCREASE THE
PRODUCTION OF OIL WELLS, AS DEMONSTRATED BY THE FRASCH PATENT; (B)
HYDROCHLORIC ACID WOULD ALSO CORRODE METAL WITH WHICH IT CAME IN
CONTACT; (C) ARSENIC COMPOUNDS AND OTHER CHEMICALS COULD BE ADDED TO
HYDROCHLORIC ACID TO INHIBIT THIS CORROSIVE EFFECT; AND (D) INHIBITED
HYDROCHLORIC ACID COULD EFFECTIVELY BE UTILIZED TO REMOVE SCALE FROM
METAL WELL EQUIPMENT WITHOUT CORRODING THE METAL.  A REPRESENTATIVE OF
THE PURE OIL COMPANY THEN SUGGESTED TO GREBE AND SANFORD THE
POSSIBILITY OF ACIDIZING OIL WELLS TO INCREASE PRODUCTION.  THE LATTER,
FROM THEIR KNOWLEDGE OF BRINE WELL ACIDIZING AND OF CORROSION
INHIBITION, IMMEDIATELY RECOMMENDED THE USE OF HYDROCHLORIC ACID
CONTAINING AN INHIBITOR.  GREBE AND SANFORD AT THIS TIME APPARENTLY DID
NOT KNOW ABOUT THE FRASCH PATENT.  BUT SPURRED BY THE SUGGESTION OF THE
PURE OIL COMPANY, THEY WORKED OUT THE PROCESS IN ISSUE ON THE BASIS OF
KNOWN FACTS AND REACTIONS. 

ALL THE GREBE-SANFORD PROCESS TAUGHT WAS THE OBVIOUS FACT THAT
HYDROCHLORIC ACID COULD BE INHIBITED TO PREVENT CORROSION WHILE BEING
USED TO DISSOLVE LIMESTONE ROCK PURSUANT TO THE FRASCH METHOD OF
ACIDIZING WELLS.  NO NEW MENTAL OR PHYSICAL OPERATION WAS REQUIRED TO
ADD, AS SUGGESTED BY THE GREBE-SANFORD PROCESS, AN ARSENIC COMPOUND OF
FROM 1% TO 5% OF THE WEIGHT OF A HYDROCHLORIC ACID SOLUTION.  NO NEW OR
UNEXPECTED RESULTS WERE OBTAINED BY THE ADDITION OF SUCH AN INHIBITOR. 
IT WAS PERFECTLY PLAIN TO AN EXPERT THAT THE METAL WELL EQUIPMENT WOULD
THEREBY BE PROTECTED FROM CORROSION.  THE GREBE-SANFORD METHOD, IN
SHORT, INVOLVED IN THIS RESPECT NO MORE THAN A MERE APPLICATION OF AN
OLD PROCESS OF INHIBITION TO A NEW AND ANALOGOUS USE OF PROTECTING
METAL WELL EQUIPMENT FROM CORROSION WHEN THE WELL IS BEING ACIDIZED TO
INCREASE PRODUCTION.  SUCH A PROCESS LACKS THE VERY ESSENCE OF AN
INVENTION.  SEE ELECTRIC CABLE CO. V. BROOKLYN EDISON CO., 292 U.S. 69,
79, 80; PARAMOUNT PUBLIX CORP. V. AMERICAN TRI-ERGON CORP., 294 U.S.
464, 473; CUNO ENGINEERING CORP. V. AUTOMATIC DEVICES CORP., 314 U.S.
84, 89. 

THE FACT THAT PRIOR TO 1932 NO ONE HAD APPARENTLY THOUGHT TO USE AN
INHIBITOR WHILE ACIDIZING AN OIL WELL TO INCREASE PRODUCTION CANNOT
INJECT INTO THE GREBE-SANFORD PROCESS THE ATTRIBUTES OF AN INVENTION. 
ESPECIALLY IS THIS SO SINCE THERE IS NO EVIDENCE OF ANY ONE TRYING
UNSUCCESSFULLY TO INHIBIT HYDROCHLORIC ACID FOR SUCH PURPOSES.  HE WHO
IS MERELY THE FIRST TO UTILIZE THE EXISTING FUND OF PUBLIC KNOWLEDGE
FOR NEW AND OBVIOUS PURPOSES MUST BE SATISFIED WITH WHATEVER FAME,
PERSONAL SATISFACTION OR COMMERCIAL SUCCESS HE MAY BE ABLE TO ACHIEVE. 
PATENT MONOPOLIES, WITH ALL THEIR SIGNIFICANT ECONOMIC AND SOCIAL
CONSEQUENCES, ARE NOT RESERVED FOR THOSE WHO CONTRIBUTE SO
INSUBSTANTIALLY TO THAT FUND OF PUBLIC KNOWLEDGE. 

(2)  THE USE OF A DILUTE RATHER THAN A CONCENTRATED HYDROCHLORIC ACID
SOLUTION.  PETITIONER LAYS GREAT STRESS ON THE FACT THAT THE GREBE
SANFORD PROCESS SUGGESTS THE USE OF A DILUTE HYDROCHLORIC ACID SOLUTION
CONTAINING ONLY 5% TO 20% HCL (PREFERABLY 10% TO 15%).  IT IS POINTED
OUT THAT FRASCH'S PATENT CALLED FOR THE USE OF COMMERCIAL HYDROCHLORIC
ACID, WHICH CONTAINS FROM 30% TO 40% OF HCL, AND THAT IN SOME OF HIS
TREATMENTS FROM 27% TO 28% WAS ACTUALLY USED.  PETITIONER CLAIMS THAT
THE DILUTION RECOMMENDED BY THE GREBE-SANFORD PROCESS SUBSTANTIALLY
REDUCES THE VISCOSITY OF THE ACID, GREATLY SLOWS ITS REACTION ON
LIMESTONE (THUS ALLOWING THE ACID TO OPEN UP CHANNELS DISTANT FROM THE
WELL HOLE INSTEAD OF SPENDING ITSELF IMMEDIATELY AND ENTIRELY ON THE
NEARBY ROCK) AND GREATLY REDUCES ITS CORROSIVE ACTION ON IRON AND
STEEL.  FN4    NOTHING APPEARS IN THE GREBE-SANFORD PATENT CLAIMS,
HOWEVER, TO SUPPORT THE THESIS THAT DILUTION IS PART OF THE ALLEGED
INVENTION.  THE MAIN CONCERN SEEMS TO HAVE BEEN DIRECTED AT THE FAILURE
OF FRASCH TO RECOMMEND THE USE OF AN INHIBITING AGENT.  THE SUGGESTED
STRENGTH OF THE GREBE-SANFORD SOLUTION IS MERELY THE ONE "IN GENERAL
BEST ADAPTED TO THE PURPOSE IN HAND" AND IT IS SAID THAT "OTHER
CONCENTRATIONS MAY BE USED, IF DESIRED."  APPARENTLY DILUTION IS
RECOMMENDED SINCE THE INHIBITING AGENT CAN ACT MORE EFFECTIVELY WITH A
WEAKER ACID, WHICH IS OBVIOUSLY LESS CORROSIVE THAN A MORE CONCENTRATED
ACID.  AT THE SAME TIME, THE RECOMMENDED DILUTION ALLOWS THE SOLUTION
TO BE OF A STRENGTH SUCH THAT THE SOLUBLE SALTS FORMED BY ITS ACTION ON
THE ROCK WILL REMAIN DISSOLVED THEREIN.  THE PATENT DOES NOT STATE THAT
AN ACID OUTSIDE THE RANGE OF 5% TO 20% STRENGTH WILL FAIL AND NO
AFFIRMATIVE ADVANTAGE OVER THE FRASCH METHOD IS CLAIMED INSOFAR AS THE
STRENGTH OF THE ACID IS CONCERNED. 

BUT EVEN ASSUMING THAT A DILUTE SOLUTION IS AN INGREDIENT OF THE
ALLEGED INVENTION, WE CAN FIND NONE OF THE ELEMENTS OF TRUE INVENTION
ADHERING THERETO.  THE MERE ADDITION OF WATER TO DILUTE A KNOWN
CHEMICAL SOLUTION DOES NOT ENTITLE ONE TO A PATENT MONOPOLY, AT LEAST
UNLESS A DEFINITE DILUTION POINT OR RANGE IS DISCOVERED CORRESPONDING
TO A PHYSICAL PHENOMENON.  KWIK SET, INC. V. WELCH GRAPE JUICE CO., 86
F.2D 945, 947.  NO SUCH DISCOVERY WAS MADE HERE.  THE ADVANTAGES SAID
TO ACCOMPANY A DILUTE SOLUTION DO NOT CORRESPOND TO ANY PARTICULAR
DILUTION POINT OR RANGE.  THE PATENT RECOMMENDS THAT THE ACID BE
DILUTED TO A 5% TO 20% STRENGTH BUT IT IS RECOGNIZED THAT "OTHER
CONCENTRATIONS MAY BE USED, IF DESIRED," TO ACHIEVE THE PURPOSE AT
HAND.  SUCH A BROAD AND INDEFINITE SPECIFICATION AS TO DILUTION IS
FATAL TO A CLAIMED INVENTION. 

(3)  THE USE OF THE ORDINARY PUMP TUBE.  THE GREBE-SANFORD PATENT
MENTIONS THE USE OF THE ORDINARY PUMP TUBE TO CONVEY THE ACID TO THE
BOTTOM OF THE WELL HOLE, WHEREAS THE FRASCH PATENT HAD CONTEMPLATED
WITHDRAWAL OF THE ORDINARY PUMP TUBE IN FAVOR OF A SMALLER AND
SPECIALLY PROTECTED SUPPLY TUBE.  BUT THIS IS AT MOST AN INCIDENTAL AND
UNIMPORTANT PART OF THE GREBE-SANFORD METHOD, AS IS RECOGNIZED BY THE
STATEMENT IN THE PATENT THAT "IT IS NOT NECESSARY, HOWEVER, TO ADD THE
ACID SOLUTION THROUGH THE PUMP TUBE, AS ANY OTHER CONVENIENT WAY MAY BE
EMPLOYED."  NO NEW FUNCTION IS PERFORMED BY THE PUMP TUBE THAT IS NOT
PERFORMED BY THE FRASCH SUPPLY TUBE; BOTH MERELY CONVEY THE ACID TO THE
BOTTOM OF THE WELL HOLE.  ANY ADVANTAGE IN COST OR SIMPLICITY WHICH THE
USE OF THE ORDINARY PUMP TUBE MAY GIVE IS THE RESULT OF THE USE OF AN
INHIBITOR IN THE ACID RATHER THAN ANY INTRINSIC MERIT OF THE PUMP
TUBE.  IT IS ELEMENTAL THAT THE MERE SUBSTITUTION OF EQUIVALENTS WHICH
DO SUBSTANTIALLY THE SAME THING IN THE SAME WAY, EVEN THOUGH BETTER
RESULTS MAY BE PRODUCED, IS NOT SUCH AN INVENTION AS WILL SUSTAIN A
PATENT.  DUNBAR V. MYERS, 94 U.S. 187, 199; SMITH V. NICHOLS, 21 WALL. 
112, 119. 

FINALLY, PETITIONER CLAIMS THAT THE GREBE-SANFORD PROCESS HAS FILLED
A LONG FELT WANT AND HAS BEEN A COMMERCIAL SUCCESS.  BUT THESE
CONSIDERATIONS ARE RELEVANT ONLY IN A CLOSE CASE WHERE ALL OTHER PROOF
LEAVES THE QUESTION OF INVENTION IN DOUBT.  SMITH V. HALL, 301 U.S.
216, 233; MCCLAIN V. ORTMAYER, 141 U.S. 419, 428, 429.  HERE THE LACK
OF INVENTION IS BEYOND DOUBT AND CANNOT BE OUTWEIGHED BY SUCH FACTORS. 
MOREOVER, THERE IS AN ABSENCE IN THIS CASE OF ANY LONG FELT WANT OR OF
ANY RECOGNIZED PROBLEM THAT HAD BAFFLED THE CONTEMPORARY ART. THERE IS
NO EVIDENCE THAT ANY ONE WITH KNOWLEDGE OF THE FRASCH METHOD AND WITH
KNOWLEDGE OF THE USE OF INHIBITORS IN HYDROCHLORIC ACID EVER TRIED
UNSUCCESSFULLY TO USE THE FRASCH METHOD WITH INHIBITED HYDROCHLORIC
ACID.  NOR IS THERE ANY PROOF OF FRUITLESS DEMANDS AND EFFORTS TO
PREVENT CORROSION WHILE ACIDIZING OIL WELLS.  WHENEVER THE NEED AROSE
TO PREVENT CORROSION IN THE USE OF HYDROCHLORIC ACID, WHETHER FOR
PURPOSES OF PICKLING, SCALE REMOVAL OR OIL WELL ACIDIZING, THE ADDITION
OF INHIBITORS WAS SUGGESTED IMMEDIATELY AND WITHOUT EFFORT.  THE GREAT
FUND OF PUBLIC KNOWLEDGE WAS SIMPLY DRAWN UPON THE FIRST TIME THE
PROBLEM WAS CONSIDERED, RESULTING IN THE OBVIOUS PROCESS DESCRIBED IN
THE GREBE-SANFORD PATENT. 

SINCE WE CONCLUDE THAT THE GREBE-SANFORD PATENT IS INVALID FOR WANT
OF INVENTION, WE NEED NOT CONSIDER RESPONDENT'S CROSS-PETITION RAISING
QUESTIONS AS TO WHETHER RESPONDENT'S PROCESS INFRINGED THE PATENT. 
AFFIRMED. 

FN1  PETITIONER ARGUES THAT (1) FRASCH USED CONCENTRATED SCID THAT
WAS SO CORROSIVE AS TO COMPEL THE USE OF THE COSTLY AND CUMBERSOME
EXPEDIENT OF REMOVING THE ORDINARY WELL TUBE AND INSERTING A SPECIAL
ACID SUPPLY PIPE; (2) CONCENTRATED ACID BEING LESS EFFECTIVE THAN
DILUTED ACID IN REACTING ON THE LIMESTONE ROCK, THE PRODUCTION
INCREASES ACHIEVED BY FRASCH WERE TOO SMALL TO JUSTIFY THE EXPENSE OF
THE TREATMENT; AND (3) VISCOUS SPENT ACID WAS DIFFICULT TO REMOVE UNDER
THE FRASCH METHOD FROM THE PORES OF THE ROCK AND HENCE BLOCKED OR
LESSENED THE FLOW OF OIL TO THE WELL HOLE. 

FN2  ONE OF PETITIONER'S EXPERTS TESTIFIED THAT THE MAIN CLAIM OF THE
GREBE-SANFORD PATENT IS THE ADDITION TO THE HYDROCHLORIC ACID OF SOME
MATERIAL WHICH WILL INHIBIT THE ACTION OF THE ACID AND THAT THE CLAIMED
RESULT "WOULD BE LIMITED APPARENTLY TO THE EQUIPMENT, RATHER THAN TO
THE WELL ITSELF."  HE STATED FURTHER THAT THE SUGGESTED INHIBITORS
"WOULD HAVE NO EFFECT ON THE ACID, IN CONNECTION WITH ITS REACTION UPON
LIMESTONE" AND THAT THEY "HAVE A SPECIFIC FUNCTION ON THE METAL
EQUIPMENT USED IN CONNECTION WITH THE WELL TREATMENT." 

FN3  SEE, FOR EXAMPLE, PATENT TO BENEKER, NO. 914,916(1909); PATENT
TO GRAVELL, NO. 1,678,775(1928).  FOR PATENTS INVOLVING THE USE OF
INHIBITORS OTHER THAN ARSENIC COMPOUNDS, SEE PATENT TO HOLMES, NO.
1,470,225(1923); PATENT TO RHODES, NO. 1,746,677(1930); PATENT TO
RHODES, NO. 1,746,678(1930); PATENT TO VIGNOS, NO. 1,750,651(1930);
PATENT TO HARRISON, NO. 1,766,902(1930); PATENT TO CORSON, NO.
1,773,953(1930); PATENT TO CALCOTT, NO. 1,785,513(1930); PATENT TO
BURKE, NO. 1,789,805(1931). 

FN4  THERE WAS EVIDENCE INTRODUCED TO THE EFFECT THAT A HYDROCHLORIC
ACID SOLUTION IS MUCH MORE CORROSIVE WHEN IT CONTAINS 30% HCI THAN WHEN
IT CONTAINS FROM 5% TO 20%.
..END :














COMMISSIONER V. SMITH, 324 U.S. 177 


NO. 371.  ARGUED JANUARY 30, 31, 1945.  - DECIDED FEBRUARY 26, 1945.  -
142 F.2D 818, REVERSED. 


AN EMPLOYER GAVE TO ITS EMPLOYEE AS COMPENSATION FOR HIS SERVICES AN
OPTION TO PURCHASE SHARES OF STOCK AT A PRICE NOT LESS THAN THE THEN
VALUE OF THE STOCK.  THE OPTION HAD NO VALUE AT THAT TIME, AND THE
COMPENSATION CONTEMPLATED BY THE PARTIES WAS THE TRANSFER TO THE
EMPLOYEE OF THE SHARES OF STOCK AFTER THEIR VALUE HAD INCREASED TO MORE
THAN THE OPTION PRICE.  HELD, UNDER SEC. 22(A) OF THE REVENUE ACT OF
1938 AND OF THE INTERNAL REVENUE CODE, THE EMPLOYEE RECEIVED
"COMPENSATION FOR PERSONAL SERVICE" AND HENCE TAXABLE INCOME IN EACH
YEAR IN WHICH STOCK WAS ACQUIRED, THROUGH EFFECTIVE EXERCISE OF THE
OPTION IN THAT YEAR, IN THE AMOUNT OF THE DIFFERENCE BETWEEN THE OPTION
PRICE AND THE THEN MARKET VALUE OF THE STOCK.  P. 181. 

COMMISSIONER OF INTERNAL REVENUE V. SMITH. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 323 U.S. 696, TO REVIEW THE REVERSAL OF A DECISION OF THE
TAX COURT WHICH SUSTAINED THE COMMISSIONER'S DETERMINATION OF A
DEFICIENCY IN INCOME TAX. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT'S EMPLOYER GAVE TO HIM, AS COMPENSATION FOR HIS SERVICES,
AN OPTION TO PURCHASE FROM THE EMPLOYER CERTAIN SHARES OF STOCK OF
ANOTHER CORPORATION AT A PRICE NOT LESS THAN THE THEN VALUE OF THE
STOCK.  IN TWO LATER TAX YEARS, WHEN THE MARKET VALUE OF THE STOCK WAS
GREATER THAN THE OPTION PRICE, RESPONDENT EXERCISED THE OPTION,
PURCHASING LARGE AMOUNTS OF THE STOCK IN EACH YEAR.  THE QUESTION FOR
DECISION IS WHETHER THE DIFFERENCE BETWEEN THE MARKET VALUE AND THE
OPTION PRICE OF THE STOCK WAS COMPENSATION FOR PERSONAL SERVICES OF THE
EMPLOYEE, TAXABLE AS INCOME IN THE YEARS WHEN HE RECEIVED THE STOCK,
UNDER SEC. 22(A) OF THE REVENUE ACT OF 1938, C. 289, 52 STAT. 447, AND
SEC. 22(A) OF THE INTERNAL REVENUE CODE, 26 U.S.C. SEC. 22(A). 

UPON A PETITION TO REVIEW THE COMMISSIONER'S FINDING OF A TAX
DEFICIENCY AGAINST RESPONDENT FOR THOSE YEARS, THE TAX COURT SUSTAINED
THE COMMISSIONER.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED,
142 F.2D 818, HOLDING THAT THERE WAS NO FINDING AND NO EVIDENCE TO
SUPPORT A FINDING, THAT THE OPTION WAS INTENDED TO ENABLE RESPONDENT TO
MAKE A "BARGAIN PURCHASE" OR THAT THE STOCK WAS ISSUED TO HIM AS
COMPENSATION FOR SERVICES.  IT CONCLUDED THAT THE EXERCISE OF THE
OPTION WAS A MERE PURCHASE OF A CAPITAL INVESTMENT WHICH COULD RESULT
IN TAXABLE INCOME ONLY UPON SALE OF THE STOCK.  WE GRANTED CERTIORARI,
323 U.S. 696, ON A PETITION WHICH ASSERTED CONFLICT OF THE DECISION
BELOW WITH THE DECISION OF THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
IN CONNOLLY'S ESTATE V. COMMISSIONER, 135 F.2D 64. 

THE TAX COURT FOUND THAT FOR MANY YEARS, AND AT ALL RELEVANT TIMES,
RESPONDENT WAS EMPLOYED BY THE WESTERN COOPERAGE COMPANY.  IN 1934
WESTERN TOOK OVER THE MANAGEMENT OF THE HAWLEY PULP AND PAPER CO.
PURSUANT TO A PLAN FOR ITS REORGANIZATION.  HAWLEY WAS THEN IN
FINANCIAL DIFFICULTIES, WITH AN INDEBTEDNESS AMOUNTING TO $2,790,150. 
UNDER ITS CONTRACT WITH HAWLEY, WESTERN WAS TO RETIRE ANNUALLY A
CERTAIN AMOUNT OF HAWLEY'S INDEBTEDNESS.  IN THE EVENT OF SUCCESS IN
THIS UNDERTAKING, AND WHEN THE AMOUNT OF HAWLEY'S INDEBTEDNESS HAD BEEN
REDUCED BY THE SUM OF $1,400,000, WESTERN WAS TO RECEIVE SPECIFIED
AMOUNTS OF THE HAWLEY COMPANY'S CAPITAL STOCK AS COMPENSATION FOR THE
SERVICES THUS RENDERED. 

RESPONDENT, IN THE COURSE OF HIS EMPLOYMENT BY WESTERN, WAS ACTIVE IN
THE REORGANIZATION OF THE HAWLEY COMPANY.  AS COMPENSATION FOR HIS
SERVICES, THE PRESIDENT OF WESTERN, IN DECEMBER 1934, GAVE RESPONDENT
AN ORAL OPTION TO PURCHASE A PART OF THE HAWLEY STOCK, TO BE ACQUIRED
BY WESTERN UNDER ITS CONTRACT.  THIS ACTION WAS CONFIRMED BY RESOLUTION
OF THE BOARD OF DIRECTORS OF WESTERN, PURSUANT TO WHICH WESTERN, AS OF
DECEMBER 10, 1934, AND "IN CONSIDERATION OF SERVICES RENDERED" BY
RESPONDENT PRIOR TO THAT DATE, AGREED IN WRITING TO SELL TO RESPONDENT
AT HIS OPTION, AT TEN CENTS A SHARE, A SPECIFIED PROPORTION OF SUCH
SHARES OF COMMON STOCK AS IT MIGHT BE ENTITLED TO RECEIVE UNDER ITS
CONTRACT WITH HAWLEY.  ON MARCH 18, 1938, WESTERN BECAME ENTITLED TO
THE STIPULATED NUMBER OF SHARES OF THE HAWLEY STOCK AS PROVIDED BY THE
CONTRACT WITH HAWLEY.  IN THAT AND THE FOLLOWING YEAR RESPONDENT, BY
THE EXERCISE OF HIS OPTION, ACQUIRED FROM WESTERN LARGE AMOUNTS OF THE
STOCK ON PAYMENT OF THE OPTION PRICE. 

THE TAX COURT FOUND THAT AT THE DATE OF THE OPTION THE MARKET PRICE
OF THE STOCK DID NOT EXCEED THE OPTION PRICE, BUT THAT IN 1938 THE
MARKET VALUE OF THE STOCK THEN ACQUIRED BY RESPONDENT EXCEEDED ITS
OPTION PRICE BY $81,021, AND THE VALUE OF THAT ACQUIRED IN 1939
EXCEEDED THE OPTION PRICE BY $71,663.  THE COURT FOUND FROM THE OPTION
ITSELF, THE RESOLUTION OF WESTERN'S BOARD OF DIRECTORS, AND FROM
PETITIONER'S OWN TESTIMONY, THAT "WESTERN GAVE THE OPTION TO PETITIONER
(RESPONDENT HERE) AS COMPENSATION FOR SERVICES RENDERED IN EFFECTING
THE REORGANIZATION PLAN OF HAWLEY."  IT HELD THAT THE EXCESS OF THE
MARKET VALUE OF THE SHARES OVER THE OPTION PRICE IN THE YEARS WHEN THE
SHARES WERE RECEIVED BY RESPONDENT, WAS COMPENSATION FOR HIS SERVICES,
TAXABLE AS INCOME IN THOSE YEARS. 

SINCE THE TAX COURT FOUND THAT THE MARKET PRICE OF THE STOCK ON THE
DATE OF THE OPTION DID NOT EXCEED THE OPTION PRICE, IT IS EVIDENT THAT
ITS FINDING THAT THE OPTION WAS GIVEN AS COMPENSATION FOR RESPONDENT'S
SERVICES, HAD REFERENCE TO THE COMPENSATION TO BE DERIVED FROM EXERCISE
OF THE OPTION AFTER THE ANTICIPATED ADVANCE IN MARKET PRICE OF THE
STOCK.  RESPONDENT TESTIFIED THAT IF THE OPTION COULD HAVE BEEN SOLD AT
THE TIME HE RECEIVED IT, IT WOULD HAVE BEEN FOR ONLY A "NEGLIGIBLE" OR
"NOMINAL" AMOUNT.  HE HAS NEVER CONTENDED THAT THE OPTION ITSELF HAD
VALUE WHEN GIVEN AND THERE WAS NO FINDING BY THE TAX COURT THAT IT THEN
HAD VALUE.  THE TAX COURT, IN STATING THE PRINCIPLE WHICH IT DEEMED
APPLICABLE TO THE PRESENT CASE, QUOTED FROM ESTATE OF EDWARD J.
CONNOLLY, 45 B.T.A. 374, AS FOLLOWS:  "IF THE OPTIONS HAD NEVER BEEN
EXERCISED THE OPTIONEES WOULD NEVER HAVE RECEIVED ANY ADDITIONAL
COMPENSATION."  THE OPTION COULD BE EXERCISED ONLY WHEN WESTERN'S
CONTRACT WITH HAWLEY HAD BEEN SUCCESSFULLY PERFORMED BY THE REDUCTION
OF A LARGE PART OF HAWLEY'S INDEBTEDNESS, WHICH WOULD RESULT IN AN
INCREASE IN THE VALUE OF HAWLEY'S CAPITAL STOCK TO BE RECEIVED BY
WESTERN SUBJECT TO RESPONDENT'S OPTION.  MOREOVER, THE TAX COURT
CONCLUDED AS A MATTER OF LAW THAT THE FACTS WHICH IT FOUND, AND WHICH
WE HAVE DETAILED, BROUGHT THE CASE, FOR THE TAX YEAR 1938, WITHIN THE
PROVISIONS OF SEC. 22(A) OF THE REVENUE ACT OF 1938, AND OF THE
INTERPRETATIVE TREASURY REGULATIONS 101, ART. 22(A)-1; AND FOR THE TAX
YEAR 1939, WITHIN THE IDENTICAL PROVISIONS OF SEC. 22(A) OF THE
INTERNAL REVENUE CODE, AND TREASURY REGULATIONS 103, ART. 19.22(A)-1. 

THE ACT AS INCLUDING "GAINS, PROFITS, AND INCOME DERIVED FROM SALARIES,
WAGES, OR COMPENSATION FOR PERSONAL SERVICE, OF WHATEVER KIND AND IN
WHATEVER FORM PAID  ...."  TREASURY REGULATIONS 101, ART. 22(A)-1
PROVIDES: "IF PROPERTY IS TRANSFERRED  ...  BY AN EMPLOYER TO AN
EMPLOYEE, FOR AN AMOUNT SUBSTANTIALLY LESS THAN ITS FAIR MARKET VALUE,
REGARDLESS OF WHETHER THE TRANSFER IS IN THE GUISE OF A SALE OR
EXCHANGE, SUCH  ...  EMPLOYEE SHALL INCLUDE IN GROSS INCOME THE
DIFFERENCE BETWEEN THE AMOUNT PAID FOR THE PROPERTY AND THE AMOUNT OF
ITS FAIR MARKET VALUE TO THE EXTENT THAT SUCH DIFFERENCE IS IN THE
NATURE OF (1) COMPENSATION FOR SERVICES RENDERED  ..." 

TAXABLE INCOME ANY ECONOMIC OR FINANCIAL BENEFIT CONFERRED ON THE
EMPLOYEE AS COMPENSATION, WHATEVER THE FORM OR MODE BY WHICH IT IS
EFFECTED.  SEE OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716,
729.  THE REGULATION SPECIFICALLY INCLUDES IN INCOME, PROPERTY
"TRANSFERRED  ...  BY AN EMPLOYER TO AN EMPLOYEE, FOR AN AMOUNT
SUBSTANTIALLY LESS THAN ITS FAIR MARKET VALUE," EVEN THOUGH THE
TRANSFER TAKES THE FORM OF A SALE OR EXCHANGE, TO THE EXTENT THAT THE
EMPLOYEE RECEIVES COMPENSATION. 

IN CERTAIN ASPECTS AN OPTION MAY BE SPOKEN OF AS "PROPERTY" IN THE
HANDS OF THE OPTION HOLDER.  CF. HELVERING V. SAN JOAQUIN FRUIT CO.,
297 U.S. 496, 498; SHUSTER V. HELVERING, 121 F.2D 643, 645.  WHEN THE
OPTION PRICE IS LESS THAN THE MARKET PRICE OF THE PROPERTY FOR THE
PURCHASE OF WHICH THE OPTION IS GIVEN, IT MAY HAVE PRESENT VALUE AND
MAY BE FOUND TO BE ITSELF COMPENSATION FOR SERVICES RENDERED.  BUT IT
IS PLAIN THAT IN THE CIRCUMSTANCES OF THE PRESENT CASE, THE OPTION WHEN
GIVEN DID NOT OPERATE TO TRANSFER ANY OF THE SHARES OF STOCK FROM THE
EMPLOYER TO THE EMPLOYEE WITHIN THE MEANING OF SEC. 22(A) AND ART.
22(A)-1.  CF. PALMER V. COMMISSIONER, 302 U.S. 63, 71.  AND AS THE
OPTION WAS NOT FOUND TO HAVE ANY MARKET VALUE WHEN GIVEN, IT COULD NOT
ITSELF OPERATE TO COMPENSATE RESPONDENT.  IT COULD DO SO ONLY AS IT
MIGHT BE THE MEANS OF SECURING THE TRANSFER OF THE SHARES OF STOCK FROM
THE EMPLOYER TO THE EMPLOYEE AT A PRICE LESS THAN THEIR MARKET VALUE,
OR POSSIBLY, WHICH WE DO NOT DECIDE, AS THE OPTION MIGHT BE SOLD WHEN
THAT DISPARITY IN VALUE EXISTED.  HENCE THE COMPENSATION FOR
RESPONDENT'S SERVICES, WHICH THE PARTIES CONTEMPLATED, PLAINLY WAS NOT
CONFINED TO THE MERE DELIVERY TO RESPONDENT OF AN OPTION OF NO PRESENT
VALUE, BUT INCLUDED THE COMPENSATION OBTAINABLE BY THE EXERCISE OF THE
OPTION GIVEN FOR THAT PURPOSE.  IT OF COURSE DOES NOT FOLLOW THAT IN
OTHER CIRCUMSTANCES NOT HERE PRESENT THE OPTION ITSELF, RATHER THAN THE
PROCEEDS OF ITS EXERCISE, COULD NOT BE FOUND TO BE THE ONLY INTENDED
COMPENSATION. 

THE TAX COURT THUS FOUND THAT THE OPTION WAS GIVEN TO RESPONDENT AS
COMPENSATION FOR SERVICES, AND IMPLICITLY THAT THE COMPENSATION
REFERRED TO WAS THE EXCESS IN VALUE OF THE SHARES OF STOCK OVER THE
OPTION PRICE WHENEVER THE OPTION WAS EXERCISED.  FROM THESE FACTS IT
CONCLUDED THAT THE COMPENSATION WAS TAXABLE AS SUCH BY THE PROVISIONS
OF THE APPLICABLE REVENUE ACTS AND REGULATIONS.  WE FIND NO BASIS FOR
DISTURBING ITS FINDINGS, AND WE CONCLUDE IT CORRECTLY APPLIED THE LAW
TO THE FACTS FOUND.  ITS DECISION IS AFFIRMED, AND THE JUDGMENT OF THE
COURT OF APPEALS BELOW, REVERSING IT, IS REVERSED. 

MR. JUSTICE ROBERTS IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED FOR THE REASONS STATED BY THE CIRCUIT COURT OF APPEALS, 142
F.2D 818. 
..END :






CHARLESTON ASSN. V. ALDERSON, 324 U.S. 182 


NO. 400.  ARGUED FEBRUARY 7, 1945.  - DECIDED FEBRUARY 26, 1945.  - 126
W. VA. 506, 30 S.E.2D 513, AFFIRMED. 


1.  THE VALIDITY OF A STATE STATUTE UNDER THE FEDERAL CONSTITUTION
DOES NOT APPEAR TO HAVE BEEN DRAWN IN QUESTION IN THIS SUIT IN THE
STATE COURTS CHALLENGING TAX ASSESSMENTS, AND AN APPEAL UNDER SEC.
237(A) OF THE JUDICIAL CODE AS AMENDED IS UNAUTHORIZED; BUT UNDER SEC.
237(C) CERTIORARI IS GRANTED, SINCE APPELLANTS PROPERLY RAISED THE
QUESTION OF THE VALIDITY OF THE ASSESSMENTS UNDER THE EQUAL PROTECTION
CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 184, 187. 

2.  EVEN WHERE THE FEDERAL QUESTION HAS BEEN PROPERLY RAISED AND
DECIDED IN THE STATE COURTS, AN APPEAL UNDER SEC. 237(A) MAY BE
DISMISSED WHERE APPELLANTS FAIL TO ATTACK A STATUTE EXPLICITLY IN THEIR
ASSIGNMENTS OF ERROR HERE.  P. 187. 

3.  SINCE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
DOES NOT OPERATE TO BAR TAXATION WHICH DOES NOT IN FACT BEAR UNEQUALLY
ON PERSONS OR PROPERTY OF THE SAME CLASS, MERE DIFFERENCES IN MODES OF
ASSESSMENT NOT SHOWN TO PRODUCE SUCH INEQUALITY ARE NOT FORBIDDEN.  P.
190. 

4.  NOR DOES THE EQUAL PROTECTION CLAUSE PROHIBIT INEQUALITY IN
TAXATION WHICH RESULTS FROM MERE MISTAKE OR ERROR IN JUDGMENT OF TAX
OFFICIALS, OR WHICH IS NOT SHOWN TO BE THE RESULT OF INTENTIONAL OR
SYSTEMATIC UNDERVALUATION OF SOME BUT NOT ALL OF THE TAXED PROPERTY IN
A SINGLE CLASS.  P. 190. 

5.  THE BURDEN OF ESTABLISHING THE UNCONSTITUTIONALITY OF ASSESSMENTS
FOR TAXATION IS UPON THE PROTESTANT.  P. 191. 

6.  APPELLANT LOAN ASSOCIATIONS FAILED TO SUSTAIN THE BURDEN OF
SHOWING THAT STATE TAX OFFICIALS, WHO ASSESSED APPELLANTS' PROPERTY FOR
STATE TAXATION AT ITS FULL VALUE, DENIED TO APPELLANTS THE EQUAL
PROTECTION OF THE LAWS, GUARANTEED BY THE FOURTEENTH AMENDMENT, BY
THEIR MODE OF VALUATION, FOR TAXATION, OF PROPERTY OF THE SAME CLASS
BELONGING TO OTHER TAXPAYERS.  P. 192. 

CHARLESTON FEDERAL SAVINGS & LOAN ASSOCIATION ET AL. V. ALDERSON,
STATE TAX COMMISSIONER. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. 

APPEAL FROM A JUDGMENT SUSTAINING THE VALIDITY OF ASSESSMENTS FOR
STATE TAXATION. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE TAX OFFICIALS OF WEST VIRGINIA, WHO HAVE
ASSESSED APPELLANTS' PROPERTY FOR STATE TAXATION AT ITS FULL VALUE,
HAVE DENIED TO APPELLANTS THE EQUAL PROTECTION OF THE LAWS, GUARANTEED
BY THE FOURTEENTH AMENDMENT, BY THEIR MODE OF VALUATION, FOR TAXATION,
OF PROPERTY OF THE SAME CLASS BELONGING TO OTHER TAXPAYERS. 

APPELLANTS ARE THREE FEDERAL SAVINGS AND LOAN ASSOCIATIONS, ORGANIZED
UNDER FEDERAL LAWS, AND ONE BUILDING AND LOAN ASSOCIATION, ORGANIZED
UNDER STATE LAWS.  THEY FILED PETITIONS WITH THE COUNTY COURT OF
KANAWHA COUNTY, WEST VIRGINIA, SEEKING A REVIEW AND REDUCTION OF THE
1941 ASSESSMENT OF THEIR PROPERTY FOR TAXATION BY THE COUNTY ASSESSOR. 
THEY ALLEGED THAT THEIR PROPERTY WAS ASSESSED AT A PROPORTIONATELY
HIGHER ASSESSMENT VALUATION THAN THE PROPERTY OF OTHER TAXPAYERS AND
THAT SUCH ASSESSMENT WAS UNEQUAL AND DISCRIMINATORY, IN CONTRAVENTION
OF THE STATE CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE FEDERAL
CONSTITUTION. 

THE COUNTY COURT, SITTING AS A BOARD OF REVIEW, REDUCED THE
ASSESSMENTS AFTER A HEARING.  ON APPEAL THE CIRCUIT COURT FOR KANAWHA
COUNTY REVERSED THE DETERMINATION OF THE COUNTY COURT, AND
REESTABLISHED THE ASSESSMENTS.  THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA, THE HIGHEST COURT OF THE STATE, AFFIRMED, 126 W. VA. 506, 30
S.E.2D 513, HOLDING THAT APPELLANTS HAD FAILED TO MAKE SUCH A CLEAR
SHOWING OF THE UNEQUAL EFFECT OF THE TAX AS TO JUSTIFY THEIR
COMPLAINT. 

THE CASE COMES HERE ON APPEAL FROM THE JUDGMENT OF THE SUPREME COURT
OF APPEALS OF WEST VIRGINIA, PURPORTING TO HAVE BEEN TAKEN UNDER SEC.
237(A) OF THE JUDICIAL CODE AS AMENDED, 28 U.S.C. SEC. 344(A), WHICH
AUTHORIZES AN APPEAL FROM THE "FINAL JUDGMENT OR DECREE IN ANY SUIT IN
THE HIGHEST COURT OF A STATE IN WHICH A DECISION IN THE SUIT COULD BE
HAD,  ...  WHERE IS DRAWN IN QUESTION THE VALIDITY OF A STATUTE OF ANY
STATE, ON THE GROUND OF ITS BEING REPUGNANT TO THE CONSTITUTION,  ...
AND THE DECISION IS IN FAVOR OF ITS VALIDITY."  IN THEIR PROTESTS
AGAINST THE ASSESSMENTS, FILED WITH THE COUNTY COURT, APPELLANTS DID
NOT DRAW IN QUESTION THE VALIDITY OF ANY STATUTE.  THEY ALLEGED ONLY
THAT THE ASSESSMENTS WERE NOT UNIFORM AND EQUAL WITH THE ASSESSMENTS OF
OTHER PROPERTY OWNERS AND THAT THEY VIOLATED THE FOURTEENTH AMENDMENT. 
AND IN THEIR PETITION FOR APPEAL TO THE SUPREME COURT OF APPEALS OF
WEST VIRGINIA APPELLANTS CONTENDED ONLY THAT THE ASSESSMENTS DENIED TO
THEM EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH
AMENDMENT. 

IT IS ESSENTIAL TO OUR JURISDICTION ON APPEAL UNDER SEC. 237(A) THAT
THERE BE AN EXPLICIT AND TIMELY INSISTENCE IN THE STATE COURTS THAT A
STATE STATUTE, AS APPLIED, IS REPUGNANT TO THE FEDERAL CONSTITUTION,
TREATIES OR LAWS.  LOEBER V. SCHROEDER, 149 U.S. 580, 585; ERIE R. CO.
V. PURDY, 185 U.S. 148, 153-4; FULLERTON V. TEXAS, 196 U.S. 192, 193;
CORKRAN OIL CO. V. ARNAUDET, 199 U.S. 182, 193; WALL V. CHESAPEAKE &
OHIO R. CO., 256 U.S. 125, 126; CITIZENS NATIONAL BANK V. DURR, 257
U.S. 99, 106; THORNTON V. MISSISSIPPI, 323 U.S. 668; CARTER V. GENERAL
AMERICAN LIFE INS. CO., 323 U.S. 676; PUTZIER V. RICHARDSON, 323 U.S.
677.  AND IT HAS LONG BEEN SETTLED THAT AN ATTACK UPON A TAX ASSESSMENT
OR LEVY, SUCH AS APPELLANTS HERE MADE, ON THE GROUND THAT IT INFRINGES
A TAXPAYER'S FEDERAL RIGHTS, PRIVILEGES, OR IMMUNITIES, WILL NOT
SUSTAIN AN APPEAL UNDER SEC. 237(A).  JETT BROS. CO. V. CITY OF
CARROLLTON, 252 U.S. 1; CITIZENS NATIONAL BANK V. DURR, SUPRA; INDIAN
TERRITORY ILLUMINATING OIL CO. V. BOARD OF EQUALIZATION, 287 U.S. 573;
MILLER V. BOARD OF COUNTY COMM'RS, 290 U.S. 586; BALTIMORE NATIONAL
BANK V. STATE TAX COMM'N, 296 U.S. 538; IRVINE V. SPAETH, 314 U.S. 575;
MEMPHIS GAS CO. V. BEELER, 315 U.S. 649, 650; COMMERCIAL CREDIT CO. V.
O'BRIEN, 323 U.S. 665; SEE EX PARTE WILLIAMS, 277 U.S. 267, 272; CF.
REEVES V. WILLIAMSON, 317 U.S. 593. 

WHERE IT APPEARS FROM THE OPINION OF THE STATE COURT OF LAST RESORT
THAT A STATE STATUTE WAS DRAWN IN QUESTION, AS REPUGNANT TO THE
CONSTITUTION, AND THAT THE DECISION OF THE COURT WAS IN FAVOR OF ITS
VALIDITY, WE HAVE JURISDICTION ON APPEAL.  FOR WE NEED NOT INQUIRE HOW
AND WHEN THE QUESTION OF THE VALIDITY OF THE STATUTE WAS RAISED WHEN
SUCH QUESTION APPEARS TO HAVE BEEN ACTUALLY CONSIDERED AND DECIDED BY
THAT COURT.  MANHATTAN LIFE INS. CO. V. COHEN, 234 U.S. 123, 134;
CHICAGO, R.I. & P.R. CO. V. PERRY, 259 U.S. 548, 551; SALTONSTALL V.
SALTONSTALL, 276 U.S. 260, 267; HOME INS. CO. V. DICK, 281 U.S. 397,
407; NICKEY V. MISSISSIPPI, 292 U.S. 393, 394; WHITFIELD V. OHIO, 297
U.S. 431, 435-6.  BUT IT DOES NOT APPEAR FROM THE OPINION OF THE
SUPREME COURT OF APPEALS THAT THE FEDERAL QUESTION WAS PRESENTED TO OR
CONSIDERED BY THAT COURT.  WHILE THE OPINION INTIMATES THAT APPELLANTS'
OBJECTION WAS MADE TO THE ADMINISTRATION OF THE STATUTE, IT NOWHERE
INDICATES THAT THEY CONTENDED THAT, AS APPLIED, THE STATUTE WAS INVALID
AS REPUGNANT TO THE FEDERAL CONSTITUTION.  FN1 

APPELLANTS IN THEIR ASSIGNMENT OF ERRORS IN THIS COURT HAVE FAILED TO
ATTACK THE STATE STATUTE AS REPUGNANT TO THE CONSTITUTION, STATING ONLY
THAT THE FINDING AND JUDGMENT BELOW SUSTAINING THE ASSESSMENT VIOLATE
THE EQUAL PROTECTION CLAUSE.  EVEN WHERE THE FEDERAL QUESTION HAS BEEN
PROPERLY RAISED BELOW, AN APPEAL UNDER SEC. 237(A) MAY BE DISMISSED
WHERE APPELLANTS FAIL TO ATTACK A STATUTE EXPLICITLY IN THEIR
ASSIGNMENTS OF ERROR HERE.  CADY V. GEORGIA, 323 U.S. 676; CF. HERBRING
V. LEE, 280 U.S. 111, 117; SEABOARD AIR LINE R. CO. V. WATSON, 287 U.S.
86, 91; FLOURNOY V. WIENER, 321 U.S. 253. 

FOR THESE REASONS WE GRANT APPELLEE'S MOTION TO DISMISS THE APPEAL. 
TREATING THE PAPERS ON WHICH THE APPEAL WAS ALLOWED AS A PETITION FOR
WRIT OF CERTIORARI, AS REQUIRED BY SEC. 237(C) OF THE JUDICIAL CODE, AS
AMENDED, 28 U.S.C. SEC. 344(C), CERTIORARI IS GRANTED, SINCE APPELLANTS
HAVE PROPERLY ATTACKED THE VALIDITY OF THE ASSESSMENTS UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, AND WE PROCEED TO
CONSIDER THE MERITS. 

1941, PROVIDES THAT "THE CAPITAL OF EVERY BUILDING AND LOAN ASSOCIATION
AND FEDERAL SAVINGS AND LOAN ASSOCIATION, AS REPRESENTED OR EVIDENCED
BY THE INVESTMENT SHARES AND INVESTMENT ACCOUNTS IN SUCH ASSOCIATION,
SHALL BE ASSESSED AT ITS TRUE AND ACTUAL VALUE....  THE REAL AND ACTUAL
VALUE OF SUCH CAPITAL, REPRESENTED BY THE MARKET VALUE OF SUCH
INVESTMENT SHARES AND INVESTMENT ACCOUNTS AS AFORESAID, SHALL BE
ASCERTAINED ACCORDING TO THE BEST INFORMATION WHICH THE ASSESSOR MAY BE
ABLE TO OBTAIN ..." 

SHALL BE ASSESSED ANNUALLY AS OF THE FIRST DAY OF JANUARY AT ITS TRUE
AND ACTUAL VALUE; ..."  AND ARTICLE 10, SEC. 1 OF THE CONSTITUTION OF
WEST VIRGINIA PROVIDES:  "...  TAXATION SHALL BE EQUAL AND UNIFORM
THROUGHOUT THE STATE, AND ALL PROPERTY, BOTH REAL AND PERSONAL, SHALL
BE TAXED IN PROPORTION TO ITS VALUE TO BE ASCERTAINED AS DIRECTED BY
LAW.  NO ONE SPECIES OF PROPERTY FROM WHICH A TAX MAY BE COLLECTED
SHALL BE TAXED HIGHER THAN ANY OTHER SPECIES OF PROPERTY OF EQUAL
VALUE."  THIS SECTION OF THE CONSTITUTION ALSO PROVIDES FOR THE
DIVISION OF ALL TAXABLE PROPERTY INTO FOUR CLASSES, WITH A PRESCRIBED
LIMITATION ON THE AMOUNT OF TAX WHICH MAY BE LEVIED UPON EACH CLASS. 
CLASS I CONSISTS OF "PERSONAL PROPERTY EMPLOYED EXCLUSIVELY IN
AGRICULTURE,  ...  PRODUCTS OF AGRICULTURE  ..., INCLUDING LIVESTOCK,
WHILE OWNED BY THE PRODUCER" AND INCLUDES "MONEY, NOTES, BONDS, BILLS
AND ACCOUNTS RECEIVABLE, STOCKS AND OTHER SIMILAR INTANGIBLE PERSONAL
PROPERTY," WHICH IS THE CLASS OF PROPERTY FOR WHICH APPELLANTS ARE
TAXED. 

NOTWITHSTANDING THESE PROVISIONS OF THE CONSTITUTION AND STATUTES OF
THE STATE, IT APPEARS FROM THE EVIDENCE, AND THE STATE COURT OF APPEALS
FOUND, THAT IN 1941, AND SINCE, THE ASSESSOR OF KANAWHA COUNTY,
FOLLOWING THE INSTRUCTIONS OF THE STATE TAX COMMISSIONER, EMPLOYED A
DIFFERENT METHOD IN THE VALUATION AND ASSESSMENT OF THE PROPERTY OF
BUILDING AND LOAN ASSOCIATIONS AND FEDERAL SAVINGS AND LOAN
ASSOCIATIONS, INCLUDING APPELLANTS, FROM THAT EMPLOYED IN ASSESSING
CLASS I PROPERTY OF OTHER TAXPAYERS.  IT IS THIS DIFFERENCE IN THE MODE
OF ASSESSING THE PROPERTY OF DIFFERENT TAXPAYERS WHICH PETITIONERS
CONTEND HAS RESULTED IN TAXING THE PROPERTY OF APPELLANTS AT ITS FULL
VALUE AND LIKE PROPERTY OF OTHER TAXPAYERS AT LESS THAN ITS FULL
VALUATION, IN VIOLATION OF THE EQUAL PROTECTION CLAUSE. 

IT APPEARS FROM THE RECORD THAT THE ASSESSOR IN 1941 FOR THE FIRST
TIME FOLLOWED THE UNIFORM PRACTICE OF ASSESSING THE CAPITAL OF BUILDING
AND LOAN ASSOCIATIONS AND FEDERAL LOAN ASSOCIATIONS AS EVIDENCED BY
THEIR INVESTMENT SHARES AND INVESTMENT ACCOUNTS, CONSTITUTING THEIR
CLASS I INTANGIBLES, AT THEIR FULL VALUE.  BUT IT ALSO APPEARS THAT IN
ASSESSING OTHER TAXPAYERS ON THEIR CLASS I PROPERTY, THE ASSESSOR
VARIED HIS METHOD OF ASSESSMENT AS TO DIFFERENT TYPES OF PROPERTY
INCLUDED IN THE CLASS.  AS TO THEM HE VALUED MONEY AT 100%, BONDS,
NOTES AND ACCOUNTS RECEIVABLE, EXCEPT INSTALLMENT ACCOUNTS, AT ABOUT
70% OF THEIR FACE VALUE AND INSTALLMENT ACCOUNTS AT 65% OF THEIR FACE
VALUE.  LIVESTOCK AND AGRICULTURAL PRODUCTS WERE VALUED AT
APPROXIMATELY 50% OF THEIR "PURCHASE VALUE."  THE ACCOUNTS RECEIVABLE
AND NOTES OF SMALL LOAN COMPANIES WERE ASSESSED AT ABOUT 85% OF THEIR
FACE VALUE.  IT DOES NOT APPEAR HOW COMMERCIAL BANKS AND TRUST
COMPANIES WERE ASSESSED, BUT FOR PURPOSES OF DECISION THE STATE COURT
ASSUMED THAT THEIR CLASS I INTANGIBLES WERE ASSESSED AT THEIR FULL FACE
VALUE. 

THE COURT OF APPEALS FOUND THAT SMALL LOAN COMPANIES AND OTHER
TAXPAYERS WHOSE CLASS I INTANGIBLES WERE TAXED AT LESS THAN THEIR FACE
VALUE ARE ENGAGED IN A BUSINESS DIFFERENT FROM AND INVOLVING A GREATER
RISK THAN THAT IN WHICH BUILDING AND LOAN ASSOCIATIONS AND FEDERAL
SAVINGS AND LOAN ASSOCIATIONS ARE ENGAGED.  IT FOUND THAT THERE WAS A
BASIS FOR THE DISCOUNT FROM FACE VALUE EMPLOYED IN ASSESSING NOTES AND
ACCOUNTS OF SMALL LOAN ASSOCIATIONS, WHICH WAS LACKING IN THE
ASSESSMENT OF THE HIGHER GRADE SECURITIES, HELD BY BUILDING AND LOAN
ASSOCIATIONS AND FEDERAL SAVINGS AND LOAN ASSOCIATIONS, WHOSE
INVESTMENTS ARE GENERALLY MORE CAREFULLY MADE AND BETTER SECURED THAN
THOSE OF OTHER CLASSES OF TAXPAYERS. 

THE COURT CONCLUDED THAT THE METHOD OF ASSESSMENT AND VALUATION
EMPLOYED WAS NOT ADOPTED WITH THE PURPOSE OF TAXING SOME BUT NOT ALL
CLASS I PROPERTY AT LESS THAN ITS TRUE VALUE, BUT AS A MEANS OF
ARRIVING AT ITS TRUE VALUE.  IT SAID:  "WE DO NOT HAVE A CASE WHERE THE
TRUE AND ACTUAL VALUE WAS ASCERTAINED AND A DISCOUNT ALLOWED FROM THAT
VALUE; BUT RATHER A CASE WHERE THE DISCOUNT WAS ALLOWED, PARTICULARLY
AS TO INTANGIBLES, IN AN EFFORT TO REACH THE TRUE VALUE."  WHILE THE
COURT THOUGHT THAT THIS METHOD OF ASSESSMENT MIGHT IN SOME INSTANCES BE
AN ERRONEOUS PERFORMANCE OF THE DUTIES OF THE ASSESSOR, IT HELD THAT A
MERE ERROR OF JUDGMENT AS TO THE MODE OF ASSESSMENT ADOPTED WAS NOT
SUFFICIENT TO ESTABLISH AN UNLAWFUL DISCRIMINATION "WHERE THE PLAN,
THOUGH IMPERFECT, IS ADOPTED IN A GOOD FAITH EFFORT TO SECURE FAIR AND
EQUITABLE ASSESSMENT, AND EQUALITY AND UNIFORMITY IN TAXATION." 

APPELLANTS ARGUE THAT DENIAL TO THEM OF THE EQUAL PROTECTION OF THE
LAWS IS ESTABLISHED BY THE PROOF OF THE ASSESSOR'S DISCRIMINATION IN
HIS MODE OF ASSESSMENT OF THE SAME KIND OF CLASS I PROPERTY BELONGING
TO DIFFERENT TAXPAYERS, AND THAT THIS DISCRIMINATION IS SHOWN TO BE
"INTENTIONAL AND SYSTEMATIC."  BUT THIS ARGUMENT OVERLOOKS THE WELL
ESTABLISHED RULE THAT THE CONSTITUTIONAL PROHIBITION APPLIES ONLY TO
TAXATION WHICH IN FACT BEARS UNEQUALLY ON PERSONS OR PROPERTY OF THE
SAME CLASS AND THAT MERE DIFFERENCES IN MODES OF ASSESSMENT DO NOT DENY
EQUAL PROTECTION UNLESS THEY ARE SHOWN TO PRODUCE SUCH INEQUALITY. 
BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 236; HOME INS. CO. V.
NEW YORK, 134 U.S. 594, 600; ADAMS EXPRESS CO. V. OHIO, 165 U.S. 194,
229; MICHIGAN CENTRAL R. CO. V. POWERS, 201 U.S. 245, 298-300; CF.
HENDRICK V. MARYLAND, 235 U.S. 610; GENERAL AMERICAN TANK CAR CORP. V.
DAY, 270 U.S. 367; INTERSTATE BUSSES CORP. V. HOLYOKE STREET R. CO.,
273 U.S. 45, 51; INTERSTATE BUSSES CORP. V. BLODGETT, 276 U.S. 245,
251.  NOR DOES THE EQUAL PROTECTION CLAUSE PROHIBIT INEQUALITY IN
TAXATION WHICH RESULTS FROM MERE MISTAKE OR ERROR IN JUDGMENT OF TAX
OFFICIALS, PITTSBURGH, C., C. & ST. L.R. CO. V. BACKUS, 154 U.S. 421,
435; COULTER V. LOUISVILLE & N.R. CO., 196 U.S. 599, 609; BROOKLYN CITY
R. CO. V. NEW YORK, 199 U.S. 48, 52; SIOUX CITY BRIDGE V. DAKOTA
COUNTY, 260 U.S. 441, 447; SOUTHERN R. CO. V. WATTS, 260 U.S. 519, 527;
BAKER V. DRUESEDOW, 263 U.S. 137, 142; CUMBERLAND COAL CO. V. BOARD,
284 U.S. 23, 25; ROWLEY V. CHICAGO & NORTHWESTERN R. CO., 293 U.S. 102,
111; GREAT NORTHERN R. CO. V. WEEKS, 297 U.S. 135, 139; OR WHICH IS NOT
SHOWN TO BE THE RESULT OF INTENTIONAL OR SYSTEMATIC UNDERVALUATION OF
SOME BUT NOT ALL OF THE TAXED PROPERTY IN A SINGLE CLASS.  NEW YORK V.
BARKER, 179 U.S. 279, 284, 285; COULTER V. LOUISVILLE & N.R. CO.,
SUPRA; CHICAGO, B. & Q.R. CO. V. BABCOCK, 204 U.S. 585, 597; SUNDAY
LAKE IRON CO. V. WAKEFIELD, 247 U.S. 350, 353; SIOUX CITY BRIDGE V.
DAKOTA COUNTY, SUPRA, 447; SOUTHERN R. CO. V. WATTS, SUPRA; SNOWDEN V.
HUGHES, 321 U.S. 1, 9.    IN ALL THESE RESPECTS APPELLANTS HAVE THE
BURDEN OF ESTABLISHING THE UNCONSTITUTIONALITY OF THE ASSESSMENTS WHICH
THEY ASSAIL, SUNDAY LAKE IRON CO. V. WAKEFIELD, SUPRA, 353, AND CASES
CITED; SOUTHERN R. CO. V. WATTS, SUPRA, 526; CHICAGO G.W.R. CO. V.
KENDALL, 266 U.S. 94, 99; LAWRENCE V. STATE TAX COMM'N, 286 U.S. 276,
284; GREAT NORTHERN R. CO. V. WEEKS, SUPRA, 139; SNOWDEN V. HUGHES,
SUPRA, 9; AND THEY HAVE FAILED TO SUSTAIN THAT BURDEN. 

IT IS PLAIN THAT THE FOURTEENTH AMENDMENT DOES NOT PRECLUDE A STATE
FROM PLACING NOTES AND RECEIVABLES IN A DIFFERENT CLASS FROM PERSONAL
PROPERTY USED IN AGRICULTURE AND THE PRODUCTS OF AGRICULTURE, INCLUDING
LIVESTOCK, AND TAXING THE TWO CLASSES DIFFERENTLY, EVEN THOUGH THE
STATE PLACES THEM IN A SINGLE CLASS FOR OTHER PURPOSES OF TAXATION. 
BELL'S GAP R. CO. V. PENNSYLVANIA, SUPRA, 237; HOME INS. CO. V. NEW
YORK, SUPRA, 606; COULTER V. LOUISVILLE & N.R. CO., SUPRA, 608-9; KLEIN
V. BOARD OF SUPERVISORS, 282 U.S. 19. 

AS WE HAVE SAID, THE STATE COURT CONCLUDED THAT THE DISCOUNT FROM
FACE VALUE ALLOWED IN ASSESSING CLASS I INTANGIBLES OF VARIOUS
TAXPAYERS, OTHER THAN APPELLANTS, WAS FOR THE PURPOSE OF ARRIVING AT
THE TRUE VALUE OF THE PROPERTY ASSESSED.  IN VIEW OF THAT CONCLUSION
AND IN THE ABSENCE OF ANY FINDING OR PERSUASIVE EVIDENCE TO THE
CONTRARY, WE CANNOT SAY THAT THE ALLOWANCE OF THE DISCOUNTS HAS IN FACT
RESULTED IN THE ACTUAL ASSESSMENT OF THE INTANGIBLES OF TAXPAYERS,
OTHER THAN APPELLANTS, AT LESS THAN THEIR TRUE VALUE.  NOR CAN WE SAY
THAT THE DISCOUNTS WHICH WERE DENIED TO APPELLANTS ON THEIR CLASS I
INTANGIBLES FOR THE FIRST TIME IN 1941 WERE INTENDED TO PRODUCE
INEQUALITY IN TAXATION, OR WERE PART OF A SYSTEMATIC EFFORT TO
ACCOMPLISH THAT END, OR IN FACT WERE MORE THAN ERRORS IN JUDGMENT, IF
THAT, IN THE ADMINISTRATION OF THE TAX LAWS. 

WE FIND NO PERSUASIVE EVIDENCE IN THE RECORD AND ARE POINTED TO NONE
FROM WHICH IT COULD BE INFERRED THAT THE VALUE OF CLASS I INTANGIBLES
OF SMALL LOAN COMPANIES AND OTHER TAXPAYERS IN WEST VIRGINIA, NOT
SUBJECT TO THE SAME SUPERVISION AS APPELLANTS, IS NOT GENERALLY LESS
THAN FACE VALUE, OR THAT THE DISCOUNT ALLOWED BY THE ASSESSOR ON THE
INTANGIBLES OF ANY GIVEN TAXPAYER OR CLASS OF TAXPAYERS HAS IN FACT
RESULTED IN AN ASSESSMENT AT LESS THAN THEIR TRUE VALUE.  IT FOLLOWS
THAT APPELLANTS HAVE FAILED TO SUSTAIN THE BURDEN OF SHOWING THAT THE
ASSESSMENTS ARE UNCONSTITUTIONALLY DISCRIMINATORY, AND THE JUDGMENT
MUST BE AFFIRMED. 

FN1  THE PRESIDENT OF THE SUPREME COURT OF APPEALS, IN ALLOWING THE
APPEAL TO THIS COURT, WROTE A MEMORANDUM OPINION TO THE EFFECT THAT THE
QUESTION OF THE VALIDITY OF THE STATUTE UNDER THE CONSTITUTION WAS
RAISED AND DECIDED THERE.  APPELLANTS URGE THAT THIS INDICATES THAT THE
APPEAL IS PROPER.  WHILE A CERTIFICATE OF THE STATE COURT, MADE PART OF
THE RECORD, TO THE EFFECT THAT THE FEDERAL QUESTION IN ISSUE WAS
DECIDED THERE IS GENERALLY SUFFICIENT TO SUSTAIN OUR JURISDICTION, WHEN
IT IS CONSISTENT WITH THE RECORD, CAPITAL CITY DAIRY V. OHIO, 183 U.S.
238, 244; MARVIN V. TROUT, 199 U.S. 212, 222-4; CINCINNATI PACKET CO.
V. BAY, 200 U.S. 179, 182; CONSOLIDATED TURNPIKE V. NORFOLK & O.V.R.
CO., 228 U.S. 596, 599; WHITNEY V. CALIFORNIA, 274 U.S. 357, 360-2;
HONEYMAN V. HANAN, 300 U.S. 14, 22, A CERTIFICATE TO THE SAME EFFECT BY
THE PRESIDING JUSTICE OF THE STATE APPELLATE COURT DOES NOT SUFFICE,
ALTHOUGH IT MAY SERVE TO INTERPRET INDEFINITE OR AMBIGUOUS EVIDENCE IN
THE RECORD, RELIED UPON TO SHOW THAT THE FEDERAL QUESTION WAS RAISED. 
FELIX V. SCHARNWEBER, 125 U.S. 54, 59, 60; HENKEL V. CINCINNATI, 177
U.S. 170; GULF & SHIP ISLAND R. CO. V. HEWES, 183 U.S. 66; HOME FOR
INCURABLES V. NEW YORK, 187 U.S. 155, 158; FULLERTON V. TEXAS, 196 U.S.
192, 194; SEABOARD AIR LINE R. CO. V. DUVALL, 225 U.S. 477, 481;
CONNECTICUT GENERAL LIFE INS. CO. V. JOHNSON, 296 U.S. 535; PURCELL V.
NEW YORK CENTRAL R. CO., 296 U.S. 545; HONEYMAN V. HANAN, SUPRA, 18,
AND CASES CITED; LISENBA V. CALIFORNIA, 314 U.S. 219.  THE MEMORANDUM
OF THE PRESIDENT OF THE WEST VIRGINIA COURT WAS NOT SUFFICIENT OF
ITSELF TO ESTABLISH THAT APPELLANTS ATTACKED A STATUTE BELOW, NOR DOES
THE RECORD CONTAIN ANY EVIDENCE WHICH COULD BE RELIED UPON TO SHOW THAT
THE VALIDITY OF A STATUTE WAS DRAWN IN QUESTION. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE APPEAL RAISES NO
SUBSTANTIAL FEDERAL QUESTION AND THEREFORE CONCURS IN ITS DISMISSAL. 
FOR THE SAME REASON HE THINKS CERTIORARI SHOULD BE DENIED. 

MR. JUSTICE ROBERTS. 

I AM OF OPINION THE JUDGMENT SHOULD BE REVERSED.  I THINK THE
EVIDENCE IS NOT ONLY WITHOUT CONTRADICTION BUT IS PERSUASIVE THAT
PERSONS AND CORPORATIONS WHOSE CIRCUMSTANCES ARE PRECISELY SIMILAR TO
THOSE OF THE COMPLAINING TAXPAYERS, AND PERSONS COMPETING IN THE
INVESTMENT FIELD WITH THEM AND HOLDING SIMILAR SECURITY, HAVE BEEN
BENEFITED BY ASSESSMENTS PURPOSELY INTENDED TO DISCRIMINATE IN THEIR
FAVOR, AND AGAINST THE COMPLAINANTS.  I THINK THE DECISION BELOW
PLAINLY RUNS COUNTER TO DECISIONS OF THIS COURT.  CUMBERLAND COAL CO.
V. BOARD OF REVISION, 284 U.S. 23; IOWA-DES MOINES NATIONAL BANK V.
BENNETT, 284 U.S. 239, 245; CONCORDIA FIRE INS. CO. V. ILLINOIS, 292
U.S. 535. 
..END :









UNITED STATES V. BEACH, 324 U.S. 193 


NO. 620.  ARGUED FEBRUARY 9, 1945.  - DECIDED FEBRUARY 26, 1945.  - 144
F.2D 533, REVERSED. 


THE MANN ACT IS APPLICABLE TO TRANSPORTATION TAKING PLACE WHOLLY
WITHIN THE DISTRICT OF COLUMBIA.  P. 195. 

UNITED STATES V. BEACH. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 323 U.S. 705, TO REVIEW THE REVERSAL OF A CONVICTION FOR
VIOLATION OF THE MANN ACT. 

PER CURIAM. 

RESPONDENT WAS INDICTED AND CONVICTED UPON A JURY TRIAL, IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, OF
TRANSPORTING ANOTHER WOMAN IN WASHINGTON, D.C., FOR THE PURPOSE OF
PROSTITUTION, IN VIOLATION OF THE MANN ACT.  36 STAT. 825, 18 U.S.C.
SEC. 397, ET SEQ. SECTION 2, 18 U.S.C. SEC. 398, MAKES IT A PENAL
OFFENSE KNOWINGLY TO "TRANSPORT OR CAUSE TO BE TRANSPORTED, OR AID OR
ASSIST IN OBTAINING TRANSPORTATION FOR, OR IN TRANSPORTING, IN
INTERSTATE  ...  COMMERCE, OR  ...  IN THE DISTRICT OF COLUMBIA, ANY
WOMAN  ...  FOR THE PURPOSE OF PROSTITUTION  ...  OR WITH THE INTENT
AND PURPOSE TO INDUCE, ENTICE, OR COMPEL SUCH WOMAN  ... TO GIVE
HERSELF UP TO DEBAUCHERY, OR TO ENGAGE IN ANY OTHER IMMORAL PRACTICE
..."  THE PROHIBITED TRANSPORTATION WITH THE INTENT OR PURPOSE TO
INDUCE OR ENTICE THE WOMAN TRANSPORTED TO PRACTICE PROSTITUTION
VIOLATES THE STATUTE.  HOKE V. UNITED STATES, 227 U.S. 308; ATHANASAW
V. UNITED STATES, 227 U.S. 326; HARRIS V. UNITED STATES, 227 U.S. 340,
341; WILSON V. UNITED STATES, 232 U.S. 563, 571; CF. MORTENSEN V.
UNITED STATES, 322 U.S. 369, 374. 

THE COURT OF APPEALS FOR THE DISTRICT SET ASIDE THE CONVICTION ON THE
GROUND THAT THE MANN ACT WAS INAPPLICABLE TO TRANSPORTATION TAKING
PLACE WHOLLY WITHIN THE DISTRICT 144 F.2D 533.  THAT COURT FOUND
SUPPORT FOR ITS CONCLUSION IN THE NUMEROUS ACTS OF CONGRESS ENACTING
LOCAL LAWS FOR THE DISTRICT, WHICH MAKE IT A CRIMINAL OFFENSE FOR "ANY
PROSTITUTE" TO INVITE OR PERSUADE ANY PERSON TO GO WITH HER TO ANY
BUILDING FOR THE PURPOSE OF PROSTITUTION, OR FOR ANY PERSON TO ENTICE
OR FORCE ANY WOMAN TO GO TO A HOUSE OF ASSIGNATION, OR FOR ANY PERSON
TO INVITE, INDUCE, OR PROCURE ANOTHER TO ENGAGE IN PROSTITUTION OR TO
GO TO ANY PLACE FOR PURPOSES OF PROSTITUTION.  FN1 THE COURT THOUGHT
THAT THE ADDITION OF THE PROHIBITION OF THE MANN ACT TO THIS
LEGISLATION, SPECIFICALLY APPLICABLE ONLY IN THE DISTRICT, WAS SO
USELESS AND UNNECESSARY AS TO INDICATE THAT THE MANN ACT WAS NOT
DESIGNED TO APPLY TO THE DISTRICT OF COLUMBIA "EXCEPT IN ITS INTERSTATE
ASPECT."  NO OTHER QUESTION WAS CONSIDERED OR DECIDED BELOW OR
DISCUSSED IN THE BRIEFS AND ARGUMENT OF COUNSEL HERE, AND WE DECIDE NO
OTHER. 

BUT NONE OF THESE ENACTMENTS OF LOCAL APPLICATION SPEAK OF
"TRANSPORTATION" FOR IMMORAL PURPOSES, WHICH IS THE ACT CONDEMNED BY
THE MANN ACT.  THE MANN ACT NOT ONLY PENALIZES SUCH TRANSPORTATION IN
INTERSTATE COMMERCE, WHICH IS DEFINED IN SEC. 1, 18 U.S.C. SEC. 397, AS
INCLUDING ANY COMMERCE INTO OR OUT OF THE DISTRICT, BUT IT SPECIFICALLY
AND REPEATEDLY INCLUDES IN ITS PROHIBITION, SUCH TRANSPORTATION "IN ANY
TERRITORY OR THE DISTRICT OF COLUMBIA."  CONGRESS, IN ENACTING THE MANN
ACT, MADE IT PERFECTLY PLAIN BY ITS COMMITTEE REPORTS ON THE PROPOSED
LEGISLATION THAT IT WAS INTENDED TO APPLY TO TRANSPORTATION TAKING
PLACE WHOLLY WITHIN THE DISTRICT OF COLUMBIA.  H. REP. NO. 47, 61ST
CONG., 2D SESS., P. 2; S. REP. NO. 886, 61ST CONG., 2D SESS., P. 2. 
BOTH REPORTS DECLARE:  "ALL OF THE PROVISIONS WHICH MAKE THE CRIME
DEPEND UPON TRANSPORTATION IN INTERSTATE OR FOREIGN COMMERCE ARE MADE
APPLICABLE TO THE DISTRICT OF COLUMBIA, THE TERRITORIES AND POSSESSIONS
OF THE UNITED STATES, INCLUDING THE PANAMA CANAL ZONE, WITHOUT REGARD
TO THE CROSSING OF DISTRICT, TERRITORIAL, OR STATE LINES  ..."  THIS
WAS RECOGNIZED BOTH BY THE PROPONENTS AND BY THE OPPONENTS OF THE BILL
ON THE FLOOR OF THE HOUSE.  45 CONG. REC. 812-813, 816; 45 CONG. REC.
APP. 14.  (THE POINT WAS NOT DEBATED IN THE SENATE.)  CONGRESS THUS,
THROUGH THE EXERCISE OF ITS POLICE POWER OVER THE DISTRICT, FOLLOWED
ITS USUAL POLICY OF EXTENDING LEGISLATION BASED ON THE COMMERCE POWER
TO THE SAME SUBSTANTIVE ACTS TAKING PLACE WHOLLY WITHIN THE DISTRICT. 
FN2 

WHETHER THE DISTRICT WAS ALREADY ADEQUATELY PROTECTED FROM THE EVILS
OF PROSTITUTION WITHOUT THE ADDED PROHIBITION OF TRANSPORTATION FOR
THAT PURPOSE, WAS FOR CONGRESS, NOT THE COURTS, TO DECIDE.  THE
PROHIBITION WAS DELIBERATELY ADOPTED BY CONGRESS, AND IT CONFLICTS WITH
NO OTHER LEGISLATION APPLICABLE IN THE DISTRICT.  HENCE THE PRESENT
REVERSAL OF THE CONVICTION FOR ITS VIOLATION WAS ERRONEOUS. 

AS THE COURT OF APPEALS DID NOT PASS UPON OTHER GROUNDS FOR REVERSAL
URGED BY RESPONDENT, THE CASE IS REMANDED TO IT FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  BATES V. UNITED STATES, 323 U.S.
15, 17, AND CASES CITED.  REVERSED. 

FN1  D.C. CODE (1929) TIT. 6, SECS. 177, 179; D.C. CODE (1940) SECS.
22-2701, 22-2702, 22-2705 TO 22-2712. 

FN2  SEE, FOR EXAMPLE, THE SHERMAN ACT (15 U.S.C. SEC. 12), THE
FEDERAL TRADE COMMISSION ACT (15 U.S.C. SEC. 44), THE FEDERAL DENTURE
ACT (18 U.S.C. SUPP. III, 1943, SEC. 420G), THE ANTI-RACKETEERING ACT
(18 U.S.C. SEC. 420B), AND THE FOOD, DRUG, AND COSMETIC ACT (21 U.S.C.
SEC. 16). 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MURPHY, DISSENTING. 

WE ARE DEALING HERE WITH A STATUTE KNOWN AND REFERRED TO BY CONGRESS
IN SEC. 8 AS THE "WHITE-SLAVE TRAFFIC ACT."  36 STAT. 825, 827.  THE
CONGRESSIONAL DEBATES AND COMMITTEE REPORTS ON THE LEGISLATION MAKE IT
PLAIN THAT THE ACT WAS DESIGNED AND INTENDED SOLELY TO PREVENT
"WHITESLAVE" TRAFFIC AND THAT IT SHOULD NOT BE APPLIED TO THE SITUATION
PRESENT IN THIS CASE.  SEE 45 CONG. REC. 805, 821, 1035, 1037; H. REP.
NO. 47, 61ST CONG., 2D SESS.; S. REP. NO. 886, 61ST CONG., 2D SESS. 

PRIOR TO THE PASSAGE OF THE ACT IN 1910, NUMEROUS INVESTIGATIONS HAD
DISCLOSED THE EXISTENCE OF A SYSTEMATIC, CONTINUOUS INTERNATIONAL AND
INTERSTATE TRAFFIC IN WOMEN AND GIRLS, WHO WERE BEING FORCED AGAINST
THEIR WILL TO PRACTICE PROSTITUTION.  FN1  FRAUD, TRICKERY, DECEIT,
FORCE AND LIQUOR WERE USED BY PANDERERS AND PROCURERS TO FORCE THEM
INTO LIVES OF SHAMELESS, IMMORAL AND INVOLUNTARY SERVITUDE.  MANY MEN
EARNED THEIR LIVELIHOOD FROM THE SALE AND EXPLOITATION OF THESE WOMEN. 
STATE LAWS WERE FOUND ENTIRELY INADEQUATE TO COPE WITH SUCH AN
EXTENSIVE INTERNATIONAL AND INTERSTATE TRAFFIC. 

CONGRESS, HOWEVER, WAS CAREFUL TO DISTINGUISH THIS VICIOUS TRAFFIC
FROM IMMORALITY AND PROSTITUTION IN GENERAL.  IT MADE IT CLEAR THAT THE
ACT WAS AIMED SOLELY AT THE WHITE-SLAVE TRAFFIC, WHICH WAS EXPLICITLY
DEFINED AS "THE BUSINESS OF SECURING WHITE WOMEN AND GIRLS AND OF
SELLING THEM OUTRIGHT, OR OF EXPLOITING THEM FOR IMMORAL PURPOSES."  H.
REP. NO. 47, P. 11; S. REP. NO. 886, P. 11.  IT WAS POINTED OUT THAT
"THE WOMEN WHO ARE THE VICTIMS OF THE TRAFFIC ARE UNWILLINGLY FORCED TO
PRACTICE PROSTITUTION" AND THAT "THESE WOMEN ARE PRACTICALLY SLAVES IN
THE TRUE SENSE OF THE WORD; THAT MANY OF THEM ARE KEPT IN HOUSES OF ILL
FAME AGAINST THEIR WILL; AND THAT FORCE, IF NECESSARY, IS USED TO
DEPRIVE THEM OF THEIR LIBERTY."  H. REP. NO. 47, P. 10; S. REP. NO.
886, P. 11.  "THE TERM 'WHITE SLAVE' INCLUDES ONLY THOSE WOMEN AND
GIRLS WHO ARE LITERALLY SLAVES - THOSE WOMEN WHO ARE OWNED AND HELD AS
PROPERTY AND CHATTELS - WHOSE LIVES ARE LIVES OF INVOLUNTARY SERVITUDE;
THOSE WHO PRACTICE PROSTITUTION AS A RESULT OF THE ACTIVITIES OF THE
PROCURER, AND WHO, FOR A CONSIDERABLE PERIOD AT LEAST, CONTINUE TO LEAD
THEIR DEGRADED LIVES BECAUSE OF THE POWER EXERCISED OVER THEM BY THEIR
OWNERS."  H. REP. NO. 47, PP. 10, 11; S. REP. NO. 886, P. 11.  FN2 AT
THE SAME TIME, THE CONGRESSIONAL COMMITTEES WERE CAREFUL TO EXPLAIN
THAT THERE WAS NO ATTEMPT, BY INVADING THE PROVINCE OF THE STATES, TO
SUPPRESS OR REGULATE IMMORALITY IN GENERAL OR "TO REGULATE THE PRACTICE
OF VOLUNTARY PROSTITUTION."  NO EFFORT WAS MADE TO PROHIBIT OR PUNISH
THE PRACTICE OF PROSTITUTION OR THE KEEPING OF HOUSES OF ILL FAME. 
THESE MATTERS WERE RECOGNIZED TO BE WITHIN THE PROPER AND EXCLUSIVE
DOMAIN OF STATE LAW.  H. REP. NO. 47, PP. 1, 2. 

THIS RICH BACKGROUND OF CONGRESSIONAL INTENT AND THE CLEAR AND
OBVIOUS TITLE OF THE ACT GIVE MEANING AND BOUNDARIES TO THE BROAD
LANGUAGE USED IN THE STATUTE.  IT WAS THE PERNICIOUS WHITE-SLAVE
TRAFFIC THAT CONGRESS HAD IN MIND WHEN IT PROVIDED IN SEC. 2, UNDER
WHICH RESPONDENT WAS CONVICTED, FOR THE PUNISHMENT OF ANY PERSON
TRANSPORTING IN INTERSTATE OR FOREIGN COMMERCE, OR IN ANY TERRITORY OR
IN THE DISTRICT OF COLUMBIA, ANY WOMAN OR GIRL FOR THE PURPOSE OF
PROSTITUTION, DEBAUCHERY OR ANY OTHER IMMORAL PURPOSE.  THAT COURTS IN
THE PAST HAVE IGNORED THE PLAIN CONGRESSIONAL PURPOSE AND HAVE APPLIED
THESE STATUTORY WORDS IN A LITERAL SENSE, SO AS TO PUNISH ANYONE
TRANSPORTING A WOMAN FOR IMMORAL PURPOSES QUITE APART FROM ANY
CONNECTION WITH WHITE-SLAVERY, DOES NOT COMMAND US TO CONTINUE SUCH AN
ERRONEOUS CONSTRUCTION AND APPLICATION OF THE ACT. 

THEREFORE I AGREE WITH THE COURT TO THE EXTENT THAT ITS JUDGMENT
MEANS THAT THE ACT APPLIES TO WHITE-SLAVE TRAFFIC SOLELY WITHIN THE
DISTRICT OF COLUMBIA, A RESULT REQUIRED BY THE WORDS OF THE STATUTE AND
BY THE CONGRESSIONAL HISTORY.  BUT THE APPLICATION OF THE ACT TO
TRANSPORTATION SOLELY WITHIN THE DISTRICT OF COLUMBIA FOR PURPOSES
QUITE UNRELATED TO WHITE-SLAVERY SHOULD NOT BE SANCTIONED.  THE COURT
DOES NOT PASS UPON THAT ISSUE DIRECTLY AND, IN ITS DISCRETION, MAY
IGNORE IT.  BUT THE FACTS OF THIS CASE SPEAK OUT BOLDLY AND CANNOT BE
UNHEEDED.  TO DO SO IS TO IMPOSE A CRIMINAL STATUTE UNFAIRLY UPON A
CITIZEN BY DISREGARDING ITS TRUE INTENT AND PURPOSE, THEREBY ADDING
ANOTHER INSTANCE OF TORTURED AND GROTESQUE APPLICATION TO ITS ALREADY
UNHAPPY HISTORY. 

THE EVIDENCE HERE DISCLOSES THAT THE RESPONDENT OPERATED A DRESS SHOP
IN THE CITY OF WASHINGTON AND EMPLOYED A GIRL AS AN ASSISTANT.  THE
GIRL AT THE SAME TIME BEGAN TO LIVE WITH RESPONDENT AT THE LATTER'S
APARTMENT.  THREE DAYS LATER RESPONDENT SUGGESTED TO THE GIRL THAT SHE
COULD EARN MORE MONEY BY "SELLING HERSELF."  ALTHOUGH SHE HAD NEVER
PRACTICED PROSTITUTION BEFORE, THE GIRL THOUGHT IT OVER AND FINALLY
AGREED TO WORK FOR RESPONDENT AS A PROSTITUTE.  THE GIRL PRACTICED
PROSTITUTION IN RESPONDENT'S APARTMENT AND IN VARIOUS HOTEL ROOMS TO
WHICH RESPONDENT SENT HER.  ON THE DAY IN QUESTION, RESPONDENT
ACCOMPANIED THE GIRL TO A HOTEL SOME FOUR BLOCKS FROM THE APARTMENT FOR
PURPOSES OF PROSTITUTION.  THE TRIP WAS MADE BY TAXICAB, RESPONDENT
PAYING HER OWN AND THE GIRL'S FARE.  THE EVIDENCE IS CLEAR THAT THE
RESPONDENT IN NO WAY COMPELLED, ENTICED OR INDUCED THE GIRL TO ENGAGE
IN THE BUSINESS OF PROSTITUTION THROUGH FRAUD, DECEIT OR FORCE; IT WAS
A PURELY VOLUNTARY MATTER ON THE PART OF THE GIRL. 

THUS THE COURT TODAY APPLIES THE WHITE SLAVE TRAFFIC ACT TO A CASE OF
VOLUNTARY PROSTITUTION, DESPITE THE FACT THAT NONE OF THE ELEMENTS OF
WHITE-SLAVERY IS PRESENT.  EQUALLY DISREGARDED IS THE FACT THAT
CONGRESS CLEARLY INTENDED SUCH CONDUCT TO REMAIN PUNISHABLE UNDER LOCAL
LAWS AND THAT ADEQUATE LOCAL LAWS FOR THE DISTRICT OF COLUMBIA HAVE
BEEN PROVIDED BY CONGRESS TO COPE WITH THE REAL EVILS PRESENT IN THIS
INSTANCE.  SUCH FACTS MAKE IT UNNECESSARY TO INVOKE THE WHITE SLAVE
TRAFFIC ACT AS A MEANS OF CONTROLLING VOLUNTARY VICE IN THE DISTRICT. 

THE ACT IS APPLIED HERE NOT BECAUSE WHITE-SLAVERY IS PRESENT BUT
BECAUSE ACTS OF VOLUNTARY PROSTITUTION FOLLOWED THE PAYMENT FOR A FOUR
BLOCK TAXICAB RIDE, ACTS WHICH ARE PUNISHABLE UNDER LOCAL LAW.  SUCH
DISTORTION OF THE LEGISLATIVE PURPOSE IS NOT REQUIRED TO SAFEGUARD
SOUND RULES OF INTERPRETATION.  IT CAN ONLY SERVE TO SUBJECT RESIDENTS
OF THE DISTRICT OF COLUMBIA TO THE EVILS OF BLACKMAIL AND PERSECUTION
AND TO PUNISH UNJUSTLY THOSE WHOSE IMMORAL ACTS DO NOT CONSTITUTE WHITE
SLAVERY.  NO PRINCIPLE OF STARE DECISIS AND NO RULE OF STATUTE OR
REASON CAN JUSTIFY SUCH A RESULT. 

FN1  "THE TESTIMONY WHICH HAS BEEN COLLECTED, INCLUDING
CORRESPONDENCE AND OTHER DOCUMENTARY EVIDENCE, WHICH WAS CAPTURED AT
THE TIME OF THE ARREST OF CERTAIN NOTORIOUS CRIMINALS, CLEARLY REVEALS
THAT AN ORGANIZED SOCIETY EXISTS BOTH IN THIS COUNTRY, AND ABROAD,
FORMED FOR NO OTHER PURPOSE THAN TO EXPLOIT INNOCENT GIRLS FOR IMMORAL
PURPOSES.  THIS SYNDICATE HAS HEADQUARTERS, AND DISTRIBUTING CENTERS,
IN NEW YORK, CHICAGO, SAN FRANCISCO, DENVER, AND MANY OTHER AMERICAN
CITIES, EXTENDING EVEN AS FAR NORTH AS NOME IN ALASKA.  FROM THE DATA
ACCUMULATED BY THE GOVERNMENT AGENTS, IT APPEARS THAT WITHIN THE LAST
TEN YEARS, HUNDREDS OF GIRLS HAVE BEEN TRANSFERRED TO VARIOUS PORTIONS
OF THE UNITED STATES, THROUGH THE PERNICIOUS ACTIVITIES OF THE AGENTS
OF THIS SYNDICATE."  45 CONG. REC. 1037. 

FN2  WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2D ED., DEFINES "WHITE
SLAVE" AS "A WOMAN HELD UNWILLINGLY FOR PURPOSES OF COMMERCIAL
PROSTITUTION." 

MR. JUSTICE BLACK JOINS IN THIS OPINION. 
..END :





















GARBER V. CREWS, 324 U.S. 200 


NO. 518.  ARGUED FEBRUARY 6, 7, 1945.  - DECIDED FEBRUARY 26, 1945.  -
144 F.2D 665, AFFIRMED. 


THE DOUBLE LIABILITY IMPOSED ON STOCKHOLDERS OF NATIONAL BANKS BY SEC.
23 OF THE ACT OF DECEMBER 23, 1913, HELD ENFORCIBLE AGAINST ONE WHO
SOLD HIS SHARES WITHIN SIXTY DAYS OF THE CLOSING OF THE BANK WHILE
INSOLVENT, EVEN THOUGH THE SALE WAS MADE IN GOOD FAITH AND THOUGH THE
BANK'S CLOSING WAS VOLUNTARY.  P. 202. 

GARBER V. CREWS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 323 U.S. 701, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE PETITIONER HERE IN AN ACTION TO ENFORCE A NATIONAL BANK
STOCKHOLDERS' LIABILITY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON TO DETERMINE THE APPLICATION IN THE CIRCUMSTANCES
OF THIS CASE OF SEC. 23 OF THE ACT OF DEC. 23, 1913,  FN1  WHICH
IMPOSES LIABILITY UPON STOCKHOLDERS OF A CLOSED NATIONAL BANK. 

NOVEMBER 25, 1929, THE AMERICAN NATIONAL BANK OF ENID, OKLAHOMA,
PURSUANT TO A RESOLUTION OF ITS DIRECTORS, WHICH RECITED THAT IT
CONTEMPLATED "DISPOSING OF ITS CURRENT BUSINESS AND THEREAFTER GOING
INTO VOLUNTARY LIQUIDATION," SOLD ITS BUSINESS AND TRANSFERRED ITS
ASSETS TO THE FIRST NATIONAL BANK OF THE SAME CITY IN CONSIDERATION OF
THE PAYMENT OF $350,000 AND THE ASSUMPTION OF ITS LIABILITIES AS
DISCLOSED BY ITS BOOKS.  THE PURCHASING BANK RETAINED $110,000 TO
GUARANTEE THE COLLECTION OF NEGOTIABLE PAPER TAKEN OVER AND TO COVER
CERTAIN REAL ESTATE TEMPORARILY RETAINED BY THE SELLER.  AMERICAN
CLOSED ITS BUSINESS AND PROMPTLY DISTRIBUTED THE $240,000 CASH RECEIVED
RATABLY AMONGST ITS STOCKHOLDERS. 

THE RESPONDENTS WERE PARTIES TO AN AGREEMENT, MADE IN 1922, WHEREBY
LARGE SUMS WERE DEPOSITED IN A BANK TO AWAIT THE SETTLEMENT OF DISPUTES
RELATIVE TO THE OWNERSHIP OF THE FUNDS DEPOSITED.  IN 1930 SETTLEMENT
WAS REACHED AND DEMAND MADE BY THE RESPONDENTS FOR THE PAYMENT OF THE
DEPOSIT.  IT WAS THEN DISCOVERED THAT THE FUND HAD BEEN DISSIPATED AND
THAT OFFICERS OF AMERICAN, WHICH WAS A CORRESPONDENT OF THE BANK OF
DEPOSIT, HAD PARTICIPATED IN THE EMBEZZLEMENTS.  THE RESPONDENTS
THEREUPON BROUGHT ACTION IN A STATE COURT AGAINST AMERICAN, ITS
OFFICERS AND DIRECTORS, TO FASTEN LIABILITY ON THE BANK AND THE
INDIVIDUALS.  A JUDGMENT AGAINST AMERICAN FOR $249,000 WAS AFFIRMED BY
THE SUPREME COURT OF OKLAHOMA.  FN2 

THE RESPONDENTS BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT FOR
WESTERN OKLAHOMA TO ESTABLISH A TRUST IN THE LIQUIDATING DIVIDEND OF
$240,000 PAID BY AMERICAN TO ITS STOCKHOLDERS AND TO RECOVER FROM THE
STOCKHOLDERS THE AMOUNT NECESSARY TO SATISFY THE BALANCE OF THE
JUDGMENT REMAINING AFTER RESTITUTION BY STOCKHOLDERS OF THE LIQUIDATING
DIVIDEND; THAT IS, TO ENFORCE THE DOUBLE LIABILITY OF STOCKHOLDERS. 
RECOVERY WAS HAD ON EACH CAUSE OF ACTION, AND ALSO ON A THIRD AGAINST
THE FORMER DIRECTORS OF AMERICAN.  THE CIRCUIT COURT OF APPEALS
AFFIRMED THE JUDGMENT ON THE FIRST AND SECOND CAUSES OF ACTION AND
ORDERED DISMISSAL OF THE THIRD.  FN3 

ON NOVEMBER 14, 1929, THE PETITIONER SOLD HIS STOCK IN AMERICAN IN
GOOD FAITH AND FOR A VALUABLE CONSIDERATION TO ONE OVEN.  DECEMBER 20,
1929, THE STOCKHOLDERS AND DIRECTORS OF AMERICAN HELD THE NECESSARY
MEETINGS AND TOOK APPROPRIATE ACTION UNDER THE NATIONAL BANK ACT  FN4
TO GO INTO VOLUNTARY LIQUIDATION, AND THEREAFTER SUCH LIQUIDATION WENT
FORWARD.  IT WILL BE OBSERVED THAT THE SALE OF PETITIONER'S STOCK WAS
WITHIN SIXTY DAYS OF NOVEMBER 25TH AND WITHIN SIXTY DAYS OF DECEMBER
20TH.  THE PETITIONER WAS A DEFENDANT IN THE PRESENT ACTION TO ENFORCE
STOCKHOLDERS' LIABILITY AND JUDGMENT WENT AGAINST HIM AS A
STOCKHOLDER.  IN A PETITION FOR CERTIORARI HE URGED A NUMBER OF
DEFENSES WHICH THE CIRCUIT COURT OF APPEALS HAD OVERRULED.  WE GRANTED
CERTIORARI LIMITED TO THE QUESTION WHETHER HIS SALE OF HIS STOCK
RELIEVED HIM OF LIABILITY.  FN5 

DOES SEC. 23 OF THE ACT OF 1913 JUSTIFY THE JUDGMENT AGAINST THE
PETITIONER?  THE STATUTE READS IN PART: 

"THE STOCKHOLDERS IN ANY NATIONAL BANKING ASSOCIATION WHO SHALL HAVE
TRANSFERRED THEIR SHARES OR REGISTERED THE TRANSFER THEREOF WITHIN
SIXTY DAYS NEXT BEFORE THE DATE OF THE FAILURE OF SUCH ASSOCIATION TO
MEET ITS OBLIGATIONS, OR WITH KNOWLEDGE OF SUCH IMPENDING FAILURE,
SHALL BE LIABLE TO THE SAME EXTENT AS IF THEY HAD MADE NO SUCH
TRANSFER." 

WE ARE OF OPINION THAT THE PETITIONER IS WITHIN THE PLAIN TERMS OF
THE LAW.  ON ITS FACE, THE ACT GRANTS NO EXEMPTION DUE TO THE FACTS
THAT THE SALE WAS MADE FOR CONSIDERATION AND IN GOOD FAITH; THAT, AT
THE TIME, AMERICAN WAS BELIEVED TO BE SOLVENT; OR THAT THE EXISTENCE OF
THE CLAIM ULTIMATELY ESTABLISHED BY THE RESPONDENTS WAS THEN NOT KNOWN
TO THE RESPONDENTS OR TO THE PETITIONER. 

PRIOR TO THE ADOPTION OF SEC. 23 AS A PART OF THE FEDERAL RESERVE ACT
OF 1913,  FN6  THE LIABILITY OF SHAREHOLDERS IN A NATIONAL BANKING
ASSOCIATION HAD BEEN IMPOSED BY R.S. 5151.  SECTION 23 OF THE ACT OF
1913 REENACTED, WITH SLIGHT VERBAL CHANGES, THE FIRST CLAUSE OF THE
FIRST SENTENCE OF R.S. 5151, WHICH PROVIDED: 

"THE SHAREHOLDERS OF EVERY NATIONAL BANKING ASSOCIATION SHALL BE HELD
INDIVIDUALLY RESPONSIBLE, EQUALLY AND RATABLY, AND NOT ONE FOR ANOTHER,
FOR ALL CONTRACTS, DEBTS, AND ENGAGEMENTS OF SUCH ASSOCIATION, TO THE
EXTENT OF THE AMOUNT OF THEIR STOCK THEREIN, AT THE PAR VALUE THEREOF,
IN ADDITION TO THE AMOUNT INVESTED IN SUCH SHARES; ..." 

R.S. 5151 HAD BEEN BEFORE THIS AND OTHER COURTS FOR INTERPRETATION
AND, UNDER IT, IT WAS HELD THAT THE GIST OF ANY ACTION TO IMPOSE
LIABILITY UPON A STOCKHOLDER WHO HAD TRANSFERRED HIS SHARES PRIOR TO
THE ACTUAL CLOSING OF THE BANK WAS THAT THE TRANSFER WAS NOT A REAL ONE
OR WAS FRAUDULENT; THAT IS, MADE WITH THE PURPOSE TO AVOID THE
STATUTORY LIABILITY.  FN7  IT IS OBVIOUS THAT WHEN CONGRESS CAME TO
WRITE THE ACT OF 1913 IT INTENDED, WHILE LEAVING THE RIGHT OF RECOVERY
FOR TRANSFERS NOT FALLING WITHIN SIXTY DAYS OF THE BANK'S CLOSING TO BE
ADJUDGED ACCORDING TO THE OLD STANDARD OF FRAUD OR INTENDED EVASION OF
LIABILITY, TO ANNOUNCE A DRASTIC NEW RULE DENYING EFFECT TO ALL
TRANSFERS MADE WITHIN SIXTY DAYS OF THE BANK'S CESSATION OF BUSINESS. 
IT IS IMPOSSIBLE TO READ THE NEW ENACTMENT OF 1913 IN ANY OTHER SENSE. 
THE ONLY CASES DEALING WITH THE QUESTION IN LOWER FEDERAL COURTS HAVE
SO HELD.  FN8 

THE PETITIONER INSISTS THAT, AS THE INITIATION OF THE LIQUIDATION OF
AMERICAN WAS VOLUNTARY, NO CAUSE OF ACTION AGAINST STOCKHOLDERS AROSE
BY REASON OF THIS ACTION.  BUT WE THINK THAT WHERE A BANK CLOSES ITS
DOORS AND CEASES TO TRANSACT BUSINESS THE RIGHT OF CREDITORS OR OF A
RECEIVER TO ENFORCE STOCKHOLDERS' LIABILITY MATURES AT THE TIME OF SUCH
CLOSING WHETHER AS A RESULT OF VOLUNTARY ACTION OR OF ADVERSE ACTION BY
THE COMPTROLLER OF THE CURRENCY, OR OF THE APPOINTMENT OF A RECEIVER,
IF AT THAT TIME THE BANK WAS INSOLVENT, AS AMERICAN UNDOUBTEDLY WAS, IF
THE RESPONDENTS' CLAIM WAS TAKEN INTO THE RECKONING.  FN9 

THE JUDGMENT OF THE COURT BELOW WAS RIGHT AND MUST BE AFFIRMED. 
AFFIRMED. 

FN1  C. 6, 38 STAT. 251, 273, 12 U.S.C. SEC. 64. 

FN2  AMERICAN NATIONAL BANK V. CREWS, 191 OKLA. 53, 126 P.2D 733. 

FN3  HOEHN V. CREWS, 144 F.2D 665. 

FN4  12 U.S.C. SEC. 181. 

FN5  323 U.S. 701. 

FN6  SUPRA, NOTE 1. 

FN7  NATIONAL BANK V. CASE, 99 U.S. 628; BOWDEN V. JOHNSON, 107 U.S.
251; WHITNEY V. BUTLER, 118 U.S. 655; STUART V. HAYDEN, 169 U.S. 1;
EARLE V. CARSON, 188 U.S. 42; MCDONALD V. DEWEY, 202 U.S. 510. 

FN8  FLETCHER V. PORTER, 20 F.2D 23, AND COLLINS V. CALDWELL, 29 F.2D
329, ARE IN ACCORD WITH THE DECISION OF THE CIRCUIT COURT OF APPEALS IN
THE INSTANT CASE. 

FN9  COMPARE RICHMOND V. IRONS, 121 U.S. 27, 48, 50. 
..END :









YOUNG V. HIGBEE CO., 324 U.S. 204 


NO. 342.  ARGUED FEBRUARY 1, 1945.  - DECIDED FEBRUARY 26, 1945.  - 142
F.2D 1004, REVERSED. 


FROM A DECREE CONFIRMING A PLAN OF REORGANIZATION UNDER CHAPTER X OF
THE BANKRUPTCY ACT, AN APPEAL WAS TAKEN BY P AND B, HOLDERS OF
PREFERRED STOCK.  THE APPEAL WAS BASED LARGELY UPON OBJECTIONS TO
ALLOWANCES MADE TO JUNIOR CLAIMANTS; AND, HAD IT BEEN SUCCESSFUL, THE
PREFERRED STOCKHOLDERS AS A CLASS WOULD HAVE BENEFITED.  FOR A
CONSIDERATION PAID TO THEM, P AND B TRANSFERRED THEIR STOCK TO JUNIOR
CLAIMANTS AND AGREED TO ABANDON THE APPEAL.  PETITIONER, ALSO A HOLDER
OF PREFERRED STOCK, SOUGHT TO INTERVENE AND PROSECUTE THE APPEAL.  THE
CIRCUIT COURT OF APPEALS DENIED LEAVE AND DISMISSED THE APPEAL. 
PETITIONER THEREUPON FILED IN THE BANKRUPTCY COURT A PETITION, ON
BEHALF OF HIMSELF AND ALL OTHER PREFERRED STOCKHOLDERS, SEEKING AN
ACCOUNTING BY P AND B TO THE DEBTOR OR TO THE PREFERRED STOCKHOLDERS,
FOR THE EXCESS OF THE AMOUNT WHICH THEY HAD RECEIVED OVER THE FAIR
VALUE OF THEIR STOCK.  HELD: 

1.  THE CIRCUIT COURT OF APPEALS' DISMISSAL OF THE APPEAL OVER
PETITIONER'S ATTEMPT TO INTERVENE DID NOT BAR PETITIONER'S SUBSEQUENT
PETITION FOR AN ACCOUNTING.  P. 208. 

2.  THE FRUIT OF THE APPEAL BY P AND B BELONGS TO ALL OF THE
PREFERRED STOCKHOLDERS.  P. 213. 

3.  THE BANKRUPTCY COURT HAS JURISDICTION TO AWARD THE RELIEF
PRAYED.  P. 214. 

4.  THE ALLEGED IMPROPER MOTIVE OF THE PETITIONER DOES NOT WARRANT
DENIAL OF THE PRAYER FOR RELIEF, WHICH WAS MADE ON BEHALF OF ALL THE
STOCKHOLDERS.  P. 214. 

YOUNG V. HIGBEE COMPANY ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 323 U.S. 689, TO REVIEW A JUDGMENT WHICH AFFIRMED THE
BANKRUPTCY COURT'S DISMISSAL OF AN APPLICATION FOR RELIEF. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE ACCOUNTABILITY OF STOCKHOLDERS
WHO OBJECTED TO THE CONFIRMATION OF A PLAN OF REORGANIZATION UNDER THE
BANKRUPTCY ACT,  FN1  AND ABANDONED THEIR APPEAL FOR A CONSIDERATION TO
THEMSELVES, WHERE THE BASIS OF THE APPEAL WAS THAT, IF SUCCESSFUL, IT
WOULD BENEFIT THE ENTIRE CLASS. 

THE HIGBEE COMPANY, A DEPARTMENT STORE WITH ASSETS OF MORE THAN SIX
MILLION DOLLARS, FILED A VOLUNTARY PETITION FOR REORGANIZATION.  IT HAD
THREE TYPES OF STOCKS:  COMMON, AND FIRST AND SECOND PREFERRED.  TWO OF
ITS DIRECTORS, BRADLEY AND MURPHY, CLAIMED THAT THEY HAD ACQUIRED BY
PURCHASE A JUNIOR DEBT AGAINST THE COMPANY OF $1,952,000.00.  A PLAN
FOR REORGANIZATION WAS PRESENTED UNDER WHICH THE OWNERS OF THIS JUNIOR
DEBT WERE TO BE AWARDED $600,000.00 IN NEW NOTES AND A LARGE BLOCK OF
COMMON STOCK.  POTTS AND BOAG, RESPONDENTS HERE, AND OWNERS OF SOME
SHARES OF FIRST PREFERRED, OBJECTED TO CONFIRMATION OF THE PLAN.  THEY
CONTENDED, ON SEVERAL GROUNDS, THAT UNLESS THE JUNIOR DEBT WAS
SUBORDINATED TO THE PREFERRED STOCK CLAIMS, THE PLAN ALLOTTED THAT
INDEBTEDNESS TOO GREAT A SHARE IN THE DISTRIBUTION OF THE BANKRUPT'S
ASSETS.  FN2  WHEN THE STOCKHOLDERS' COMMITTEE OF WHICH THEY WERE
MEMBERS APPROVED THE PLAN, POTTS AND BOAG RESIGNED AND ANNOUNCED THE
FORMATION OF A NEW COMMITTEE TO PRESS THEIR OBJECTIONS TO THE JUNIOR
DEBT ALLOWANCE.  NOTWITHSTANDING THESE OBJECTIONS, THE SECURITIES &
EXCHANGE COMMISSION RECOMMENDED THE PLAN'S ACCEPTANCE, 8 S.E.C. 777,
AND THE DISTRICT COURT CONFIRMED IT.  50 F.SUPP.  114.  POTTS AND BOAG
APPEALED FROM THE DISTRICT COURT'S DECREE CONFIRMING THE PLAN. 
ALTHOUGH APPEALING AS INDIVIDUALS, THEIR APPEAL WAS BASED ALMOST
ENTIRELY ON OBJECTIONS TO ALLOWANCES FOR THE JUNIOR INDEBTEDNESS WHICH
LEFT LESS FOR DISTRIBUTION AMONG ALL THE PREFERRED STOCKHOLDERS.  THEIR
APPEAL SOUGHT NO SEPARATE INDIVIDUAL RELIEF FOR THEMSELVES; THEY
APPEALED ONLY TO HAVE THE CONFIRMATION SET ASIDE.  HAD THEIR APPEAL
SUCCEEDED, THE DISTRICT COURT WOULD HAVE BEEN REQUIRED TO REDUCE THE
VALUE OF JUNIOR CLAIMS ASSERTED BY BRADLEY AND MURPHY, THEREBY
INCREASING THE VALUE OF THE CLAIMS OF THE PREFERRED STOCKHOLDERS AS A
CLASS. 

IN THIS SITUATION, POTTS AND BOAG SOLD THEIR STOCK AND THEIR APPEAL
FN3  TO BRADLEY AND MURPHY, CLAIMANTS UNDER THE JUNIOR DEBT; THE
CONSIDERATION PAID WAS $115,000.00.  THE PAR VALUE OF THIS STOCK WAS
$26,000.00.  ITS ADMITTED MARKET VALUE AT THE TIME, AS THE COURT BELOW
FOUND, WAS $17,000.00.  PURSUANT TO THIS CONTRACT FOR SALE OF THE
APPEAL A STIPULATION FOR DISMISSAL WAS FILED IN THE CIRCUIT COURT OF
APPEALS.  PETITIONER YOUNG, A PREFERRED STOCKHOLDER OF THE SAME CLASS,
SOUGHT TO INTERVENE AND PROSECUTE THE APPEAL.  HIS PETITION WAS DENIED
AND THE CASE WAS DISMISSED WITHOUT OPINION.  YOUNG THEN, ON BEHALF OF
HIMSELF AND ALL OTHER PREFERRED STOCKHOLDERS, FILED A PETITION IN THE
DISTRICT COURT SETTING UP THESE FACTS AND PRAYING THAT HE BE AUTHORIZED
TO EMPLOY COUNSEL TO COMPEL POTTS AND BOAG TO ACCOUNT TO THE DEBTOR FOR
THE DIFFERENCE BETWEEN WHAT THEY RECEIVED AND THE FAIR VALUE OF THEIR
STOCK, OR PRAYING IN THE ALTERNATIVE THAT POTTS AND BOAG BE REQUIRED TO
PAY OVER THAT AMOUNT TO THE PREFERRED STOCKHOLDERS.  FN4  AFTER A
HEARING, A SPECIAL MASTER FOUND AS A FACT THAT POTTS AND BOAG HAD
APPEALED IN BEHALF OF THEMSELVES ONLY AND HAD NOT ACTED AS
REPRESENTATIVES OF A CLASS.  THE DISTRICT COURT APPROVED THIS FINDING,
THOUGHT IT DETERMINATIVE OF THE CASE, AND DISMISSED YOUNG'S PETITION. 
THE CIRCUIT COURT OF APPEALS AFFIRMED.  142 F.2D 1004.  BECAUSE
CONSIDERATIONS OF SUBSTANTIAL IMPORTANCE TO THE EFFECTIVE
ADMINISTRATION OF CORPORATE REORGANIZATIONS ARE INVOLVED, WE GRANTED
CERTIORARI, 323 U.S. 689.  FN5 

FIRST.  IT IS ARGUED THAT SINCE THE CIRCUIT COURT OF APPEALS
DISMISSED THE APPEAL OF POTTS AND BOAG OVER YOUNG'S ATTEMPT TO
INTERVENE, YOUNG IS ESTOPPED FROM PROSECUTING THE PRESENT PETITION. 
THIS CONTENTION HAS NO MERIT, FOR THE REASON, AMONG OTHERS, THAT THE
DETERMINATIVE ISSUES IN THE TWO PROCEEDINGS WERE NOT THE SAME.  THE
FIRST PETITION DID NOT PRAY FOR AN ACCOUNTING BY POTTS AND BOAG.  THE
COURT ONLY DECIDED THEN THAT YOUNG COULD NOT INTERVENE AND CONTINUE
THAT APPEAL, AND THAT THE APPEAL SHOULD BE DISMISSED.  NOW, ACCEPTING
THE COURT'S DISMISSAL OF THE APPEAL AS FINAL, YOUNG SEEKS AN ACCOUNTING
FOR THE CONSIDERATION PAID POTTS AND BOAG FOR AGREEING TO DISMISS. 

SECOND.  IT IS ARGUED THAT SINCE POTTS AND BOAG DID NOT EXPRESSLY
SPECIFY THAT THEY APPEALED IN THE INTEREST OF THE WHOLE CLASS OF
PREFERRED STOCKHOLDERS, BUT APPEALED ONLY IN THEIR OWN NAMES, THEY OWED
NO DUTY TO ANY STOCKHOLDERS BUT THEMSELVES.  THE APPEAL HERE, HOWEVER,
WAS NOT FROM A DENIAL OF ANY INDIVIDUAL CLAIM OF POTTS AND BOAG.  ITS
BASIS WAS THAT EVERY OTHER PREFERRED STOCKHOLDER, AS WELL AS
THEMSELVES, WOULD BE INJURED BY CONFIRMATION.  SO FAR AS THE ISSUES
RAISED BY THE APPEAL ARE CONCERNED, THE RIGHTS OF POTTS AND BOAG AND
THE OTHER PREFERRED STOCKHOLDERS WERE INSEPARABLE.  THUS, EVEN THOUGH
THEIR OBJECTION TO CONFIRMATION CONTAINED NO FORMAL CLASS SUIT
ALLEGATIONS, THE SUCCESS OR FAILURE OF THE APPEAL WAS BOUND TO HAVE A
SUBSTANTIAL EFFECT ON THE INTERESTS OF ALL OTHER PREFERRED
STOCKHOLDERS.  THE LIABILITY OF ONE WHO ASSUMES A DETERMINING POSITION
OVER THE RIGHTS OF OTHERS MUST TURN ON SOMETHING MORE SUBSTANTIAL THAN
MERE FORMAL ALLEGATIONS IN A COMPLAINT.  FN6  EQUITY LOOKS TO THE
SUBSTANCE AND NOT MERELY TO THE FORM. 

FURTHERMORE, THE RIGHT OF APPEAL GRANTED BY A STATUTE SHOULD NOT BE
INTERPRETED IN SUCH WAY AS TO DEFEAT RIGHTS CLEARLY GRANTED IN OTHER
PARTS OF THE SAME ACT.  PECK V. JENNESS, 7 HOW.  612, 623.  POTTS AND
BOAG APPEALED UNDER SEC. 206 OF THE CHANDLER ACT, WHICH, CONTRARY TO
THE GENERAL BANKRUPTCY PROCEDURE, GRANTS ANY STOCKHOLDER OR CREDITOR
THE RIGHT TO BE HEARD ON ALL MATTERS RELATING TO CORPORATE
REORGANIZATIONS.  COURTS HAVE LIBERALLY CONSTRUED THIS LANGUAGE AS
AUTHORIZING APPEALS.  FN7  WE ARE NOW ASKED TO SAY THAT THE PRIVILEGE
OF APPEAL GRANTED TO POTTS AND BOAG BY THE ACT VESTED THEM WITH AN
INDEFEASIBLE RIGHT TO SELL THE PRIVILEGE TO THE DISADVANTAGE OF ALL
OTHER STOCKHOLDERS IN THEIR CLASS.  BUT, HISTORICALLY ONE OF THE PRIME
PURPOSES OF THE BANKRUPTCY LAW HAS BEEN TO BRING ABOUT A RATABLE
DISTRIBUTION AMONG CREDITORS OF A BANKRUPT'S ASSETS; TO PROTECT THE
CREDITORS FROM ONE ANOTHER.  FN8  AND THE CORPORATE REORGANIZATION
STATUTES LOOK TO A RATABLE DISTRIBUTION OF ASSETS AMONG CLASSES OF
STOCKHOLDERS AS WELL AS CREDITORS.  THERE WOULD BE NO RATABLE
DISTRIBUTION OF THIS BANKRUPT ESTATE IF POTTS AND BOAG COULD UTILIZE
THEIR STATUTORY RIGHT OF APPEAL TO GET FOR THEIR PREFERRED STOCK $7.00
FOR EVERY $1.00 PAID TO OTHER PREFERRED STOCKHOLDERS.  WE ARE ASKED TO
SAY THAT CONGRESS INTENDED SUCH A CONSEQUENCE, AND TO CONSTRUE THE
RIGHT OF A STOCKHOLDER TO BE HEARD ON A PLAN OF REORGANIZATION AS
CARRYING WITH IT THE RIGHT TO "SELL" THE VERY APPEAL WHICH THE ACT
GRANTS HIM. 

POTTS AND BOAG, BY APPEALING FROM A JUDGMENT WHICH AFFECTED A WHOLE
CLASS OF STOCKHOLDERS, OWED AN OBLIGATION TO THEM, THE FULL EXTENT OF
WHICH WE NEED NOT NOW DELINEATE.  CERTAINLY, AT THE VERY LEAST THEY
OWED THEM AN OBLIGATION TO ACT IN GOOD FAITH.  IF POTTS AND BOAG HAD
DECLINED TO ACCEPT THIS PLAN IN BAD FAITH, THE COURT, UNDER SEC. 203,
FN9  COULD HAVE DENIED THEM THE RIGHT TO VOTE ON THE PLAN AT ALL.  THE
HISTORY OF THIS PROVISION MAKES CLEAR THAT IT WAS INTENDED TO APPLY TO
THOSE STOCKHOLDERS WHOSE SELFISH PURPOSE WAS TO OBSTRUCT A FAIR AND
FEASIBLE REORGANIZATION IN THE HOPE THAT SOMEONE WOULD PAY THEM MORE
THAN THE RATABLE EQUIVALENT OF THEIR PROPORTIONATE PART OF THE BANKRUPT
ASSETS.  FN10  IF POTTS' AND BOAG'S OPPOSITION TO CONFIRMATION SPRANG
FROM SUCH A PURPOSE (AND POTTS AND BOAG DID OBSTRUCT CONFIRMATION UNTIL
THEY WERE ABLE TO "SELL" THEIR APPEAL) THEY WERE ACTING IN BAD FAITH
WITHIN THE STATUTORY MEANING OF THAT TERM.  AND ACCEPTING MONEY AS THE
END RESULT OF SUCH A STATUTORY VIOLATION CANNOT VEST THEM WITH A RIGHT
TO KEEP IT.  PAYMENT TO THEM OF THIS MONEY SIMPLY MEANT THAT THE
DISTRIBUTION OF BANKRUPT ASSETS TO THE JUNIOR DEBT CLAIMANTS, WHO PAID
POTTS AND BOAG, WOULD REPRESENT A SMALLER NET VALUE.  THE STATUTE
CONTEMPLATES, AND THE APPEAL WAS TAKEN ON THE ASSUMPTION, THAT THE LESS
THE JUNIOR CLAIMANTS WERE AWARDED THE MORE ALL THE PREFERRED
STOCKHOLDERS WOULD RECEIVE.  THEREFORE, THE CONSIDERATION OF THE SALE
WHICH POTTS AND BOAG MADE WAS NOT MERELY THEIR OWN INTEREST IN THE
BANKRUPT ESTATE, BUT THE INTEREST OF ALL THE PREFERRED STOCKHOLDERS. 
THE SITUATION WHICH ENABLED THEM TO TRAFFIC IN THE INTERESTS OF OTHERS
WAS CREATED BY A STATUTE PASSED TO PROTECT THE INTERESTS OF ALL OF
THEM.  FN11  THE STATUTE NEITHER COMPELS THEM TO APPEAL NOR TO
PROSECUTE AN APPEAL ALREADY TAKEN CONTRARY TO THEIR OWN INTERESTS; IT
DOES IMPOSE UPON THEM THE DUTY OF GOOD FAITH TO ALL OTHER STOCKHOLDERS
WHOSE INTERESTS THEY TEMPORARILY CONTROL BECAUSE THEY ARE NECESSARILY
INVOLVED IN THE APPEAL.  THIS CONTROL OF THE COMMON RIGHTS OF ALL THE
PREFERRED STOCKHOLDERS IMPOSED ON POTTS AND BOAG A DUTY FAIRLY TO
REPRESENT THOSE COMMON RIGHTS.  FN12  THIS REPRESENTATIVE
RESPONSIBILITY IS EMPHASIZED BY THE FACT THAT THEY MIGHT HAVE BEEN
AWARDED COMPENSATION FOR THEIR SERVICES HAD THEY SUCCEEDED IN REDUCING
THE CLAIM OF THE JUNIOR INDEBTEDNESS TO THE ADVANTAGE OF ALL THE
PREFERRED STOCKHOLDERS.  SEC. 243; CF. SEC. 249.  IN RE KEYSTONE REALTY
HOLDING CO., 117 F.2D 1003, 1006.  THEY CANNOT AVAIL THEMSELVES OF THE
STATUTORY PRIVILEGE OF LITIGATING FOR THE INTEREST OF A CLASS AND THEN
SHAKE OFF THEIR SELF-ASSUMED RESPONSIBILITIES TO OTHERS BY A SIMPLE
ANNOUNCEMENT THAT HENCEFORTH THEY WILL TRADE IN THE RIGHTS OF OTHERS
FOR THEIR OWN AGGRANDIZEMENT.  TO HOLD THAT THE CHANDLER ACT PERMITS
THIS, WOULD BE TO SAY THAT CONGRESS, WHICH SOUGHT MORE EFFECTIVELY TO
ACCOMPLISH FAIR AND EQUITABLE TREATMENT OF INVESTORS, HAD, BY GRANTING
A RIGHT OF APPEAL TO STOCKHOLDERS, DEFEATED ITS PURPOSE, AND HAD
SUBSTANTIALLY MODIFIED THE WHOLE BODY OF LAW IMPOSING THE MOST RIGOROUS
RESPONSIBILITIES FOR FAIR DEALING UPON THOSE WHO REPRESENT THE RIGHTS
OF OTHERS.  FN13 

THE MONEY POTTS AND BOAG RECEIVED IN EXCESS OF THEIR OWN INTEREST AS
STOCKHOLDERS WAS NOT PAID FOR ANYTHING THEY OWNED.  IT CAME TO THEM IN
SETTLEMENT OF LITIGATION WHICH IF CARRIED TO A SUCCESSFUL CONCLUSION
WOULD HAVE ADDED TO THE VALUE OF OTHER PREFERRED STOCKHOLDERS OF THE
COMMON DEBTOR.  THAT THE SUIT WAS SETTLED AND DISMISSED DOES NOT ALTER
THE RIGHTS OF PARTIES AS TO DISTRIBUTION OF THE FRUITS OF THE
SETTLEMENT.  A DISTINCTION AS TO RIGHTS ARISING FROM LITIGATION, WHICH
RESTS UPON THE DIFFERENCE BETWEEN A JUDGMENT AND A SETTLEMENT OF A
LAWSUIT, UNDER THESE CIRCUMSTANCES, AS IN OTHERS, IS "TOO FORMAL TO BE
SOUND."  LYETH V. HOEY, 305 U.S. 188, 195, 196; HELVERING V. SAFE
DEPOSIT & TRUST CO., 316 U.S. 56, 63-67.  THE APPEAL OF POTTS AND BOAG
WAS ALLEGED TO BE FOR THE BENEFIT OF ALL PREFERRED STOCKHOLDERS.  IN
THE CONTEMPLATION OF THE STATUTE WHICH AUTHORIZED THE APPEAL, ITS FRUIT
PROPERLY BELONGS TO ALL THE PREFERRED STOCKHOLDERS.  ONE CREDITOR,
THEREFORE, CANNOT MAKE THAT FRUIT HIS OWN BY A SIMPLE APPROPRIATION OF
IT.  CF. TERRY V. LITTLE, 101 U.S. 216, 218. 

THIRD. IT IS ARGUED THAT EVEN THOUGH THE MONEY PAID IN EXCESS OF THE
STOCK VALUE DOES IN EQUITY AND GOOD CONSCIENCE BELONG TO THE
STOCKHOLDERS, THE BANKRUPTCY COURT IS WITHOUT POWER TO AWARD THE RELIEF
PRAYED.  COURTS OF BANKRUPTCY ARE COURTS OF EQUITY AND EXERCISE ALL
EQUITABLE POWERS UNLESS PROHIBITED BY THE BANKRUPTCY ACT.  SECURITIES &
EXCHANGE COMM'N V. UNITED STATES REALTY CO., 310 U.S. 434, 455.  THE
DISTRICT COURT STILL HAS JURISDICTION TO EXERCISE ITS POWERS UNDER THE
ACT BOTH BECAUSE OF ITS EXPRESS RESERVATION AND BECAUSE OF THE
PROVISIONS OF SEC. 222.  FN14  THAT POWER IS AMPLE TO AUTHORIZE THE
COURT TO ORDER AN ACCOUNTING FOR THE FUNDS IN DISPUTE HERE.  PEPPER V.
LITTON, 308 U.S. 295, 303-310; AMERICAN UNITED INS. CO. V. AVON PARK,
311 U.S. 138, 145-147; CONSOLIDATED ROCK CO. V. DUBOIS, 312 U.S. 510,
521-523. 

NOR CAN WE SUSTAIN THE CONTENTION THAT RELIEF SHOULD BE DENIED ON THE
ALLEGATIONS THAT YOUNG'S MOTIVE IN BRINGING THE PROCEEDING IS AN
UNWORTHY ONE.  HIS PETITION SOUGHT RELIEF FOR THE BENEFIT OF ALL THE
STOCKHOLDERS.  THE RIGHTS OF THESE STOCKHOLDERS ARE NOT TO BE IGNORED
BECAUSE OF SOME MOTIVE ATTRIBUTABLE TO YOUNG.  REVERSED. 

FN1  THE PROCEEDINGS WERE BEGUN IN 1935 UNDER SEC. 77B, 11 U.S.C.
207.  JUNE 22, 1938, CONGRESS PASSED THE CHANDLER ACT, AND THE
PROVISIONS OF CHAPTER 10 OF THE ACT WERE THEREAFTER APPLICABLE TO THESE
PROCEEDINGS.  52 STAT. 883-905, 11 U.S.C. 501-676. 

FN2  THIS $1,952,000.00 JUNIOR INDEBTEDNESS CONSISTED OF SUBORDINATED
NOTES OF THE HIGBEE COMPANY WHICH HAD BEEN BOUGHT BY MIDAMERICA
CORPORATION FOR $100,000.00 AT AN AUCTION SALE IN 1935.  POTTS AND BOAG
CONSISTENTLY MAINTAINED THAT THE JUNIOR DEBT'S PARTICIPATION IN
HIGBEE'S ASSETS SHOULD BE LIMITED TO $100,000.00.  THEY CHARGED THAT
BRADLEY WAS A DIRECTOR OF HIGBEE AND OF MIDAMERICA, AND THUS OCCUPIED
TWO CONFLICTING FIDUCIARY POSITIONS.  THEY INSISTED THAT THE COURT
SHOULD FIND THIS JUNIOR DEBT TO BE "INVALID AND UNENFORCEABLE IN WHOLE
OR IN PART" AND "SUBORDINATED TO THE FIRST AND SECOND PREFERRED
STOCK."    FN3  POTTS' TESTIMONY AS TO THE SALE WAS: 

"Q.  SO THAT IN A SENSE YOU WERE SELLING SOMETHING MORE THAN YOUR
STOCK, I TAKE IT?  A. I THINK SO.    "Q.  YOU WERE SELLING THE APPEAL
WHICH YOU HAD TAKEN IN BEHALF OF YOURSELF AND MR. BOAG; THAT IS A FAIR
STATEMENT, ISN'T IT?  A. I THINK SO." 

THE WRITTEN CONTRACT BETWEEN POTTS AND BOAG AND BRADLEY AND MURPHY
SPECIFICALLY PROVIDED FOR SALE OF THE APPEAL AS WELL AS THE STOCK.  IT
READS IN PART: 

"I HEREBY SELL, ASSIGN, TRANSFER AND SET OVER UNTO CHARLES L. BRADLEY
AND JOHN P. MURPHY, AND THEIR ASSIGNS, 260 SHARES OF FIRST PREFERRED
STOCK OF THE HIGBEE COMPANY, OF CLEVELAND, OHIO, ...  TOGETHER WITH ALL
RIGHTS, TITLE AND INTEREST, BENEFITS OR PRIVILEGES WE, OR EITHER OF US,
HAVE OR MAY HAVE IN AND TO OR BY VIRTUE OF OR ARISING FROM THE MATTER
OF THE HIGBEE COMPANY, DEBTOR, J. FRED POTTS AND WILLIAM W. BOAG,
APPELLANTS, VS.  THE HIGBEE COMPANY, APPELLEE, AND A CERTAIN APPEAL
TAKEN BY J. FRED POTTS AND WILLIAM W. BOAG IN SAID PROCEEDINGS, WHICH
SAID APPEAL IS NOW PENDING IN THE UNITED STATES CIRCUIT COURT OF
APPEALS FOR THE SIXTH CIRCUIT  ..." 

FN4  IN BOTH COURTS BELOW YOUNG SOUGHT AN ORDER AGAINST BRADLEY AND
MURPHY AS WELL AS POTTS AND BOAG BUT BRADLEY AND MURPHY HAVE NOT BEEN
MADE RESPONDENTS IN THIS COURT. 

FN5  THE PETITIONER HAS MADE THE FOLLOWING STATEMENT TO THIS COURT
WITH REFERENCE TO THE RESPONDENT BOAG: 

"DURING THE COURSE OF THE APPEAL IN THE CIRCUIT COURT OF APPEALS IT
FIRST CAME TO PETITIONER'S ATTENTION THAT RESPONDENT BOAG HAD ENTERED
THE ARMED SERVICES.  NO ONE REPRESENTING BOAG HAS APPEARED TO REQUEST A
STAY OF PROCEEDINGS PENDING HIS RETURN.  HOWEVER, PETITIONER HAS NO
DESIRE TO CAUSE JUDGMENT TO BE ENTERED AGAINST BOAG UNDER THESE
CIRCUMSTANCES.  IT WOULD BE ENTIRELY SATISFACTORY TO HAVE THE
PROCEEDINGS STAYED AS TO BOAG PENDING HIS RETURN, ALTHOUGH NO RIGHTS
AGAINST HIM ARE WAIVED." 

UNDER THESE CIRCUMSTANCES NO JUDGMENT AGAINST BOAG WILL BE ENTERED IN
THIS CASE AND THE PROCEEDINGS IN THE CIRCUIT COURT OF APPEALS WILL BE
STAYED AS TO HIM.  SOLDIERS' & SAILORS' CIVIL RELIEF ACT OF 1940, 54
STAT. 1178. 

FN6  SPRAGUE V. TICONIC BANK, 307 U.S. 161.  SEE ATLAS BANK V. NAHANT
BANK, 23 PICK.  (MASS.) 480; WHITTEN V. DABNEY, 171 CAL. 621, 154 P.
312; HONESDALE CO. V. MONTGOMERY, 56 W. VA. 397, 49 S.E. 434; RAWNSLEY
V. TRENTON MUTUAL LIFE INS. CO., 9 N.J. EQ. 95; WOOD V. DUMMER, 30 FED.
CAS. 435, NO. 17,944. 

FN7  IN RE KEYSTONE REALTY HOLDING CO., 117 F.2D 1003; DANA V.
S.E.C., 125 F.2D 542; CF. AMICK V. MORTGAGE SECURITY CORP., 30 F.2D
359. 

FN8  BOESE V. KING, 108 U.S. 379, 385-386; SAMPSELL V. IMPERIAL PAPER
CORP., 313 U.S. 215, 219; CF. CASE V. LOS ANGELES LUMBER CO., 308 U.S.
106.  SEE ALSO 66 PA. L. REV. 224; SENATE DOCUMENT NO. 65, 72ND CONG.,
1ST SESS., 6, 10, 49-93. 

FN9  "SEC.  203.  IF THE ACCEPTANCE OR FAILURE TO ACCEPT A PLAN BY
THE HOLDER OF ANY CLAIM OR STOCK IS NOT IN GOOD FAITH, IN THE LIGHT OF
OR IRRESPECTIVE OF THE TIME OF ACQUISITION THEREOF, THE JUDGE MAY,
AFTER HEARING UPON NOTICE, DIRECT THAT SUCH CLAIM OR STOCK BE
DISQUALIFIED FOR THE PURPOSE OF DETERMINING THE REQUISITE MAJORITY FOR
THE ACCEPTANCE OF A PLAN."  52 STAT. 894. 

FN10  A YEAR BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY HELD ITS
EXTENSIVE HEARINGS ON THE CHANDLER ACT, A CIRCUIT COURT OF APPEALS HELD
THAT A CREDITOR COULD NOT BE DENIED THE PRIVILEGE OF VOTING ON A
REORGANIZATION PLAN UNDER SEC. 77B, ALTHOUGH HE BOUGHT THE VOTES FOR
THE PURPOSE OF PREVENTING CONFIRMATION UNLESS CERTAIN DEMANDS OF HIS
SHOULD BE MET.  TEXAS HOTEL CORP. V. WACO DEVELOPMENT CO., 87 F.2D
395.  THE HEARINGS MAKE CLEAR THE PURPOSE OF THE COMMITTEE TO PASS
LEGISLATION WHICH WOULD BAR CREDITORS FROM A VOTE WHO WERE PROMPTED BY
SUCH A PURPOSE.  TO THIS END THEY ADOPTED THE "GOOD FAITH" PROVISIONS
OF SEC. 203.  ITS PURPOSE WAS TO PREVENT CREDITORS FROM PARTICIPATING
WHO "BY THE USE OF OBSTRUCTIVE TACTICS AND HOLD-UP TECHNIQUES EXACT FOR
THEMSELVES UNDUE ADVANTAGES FROM THE OTHER STOCKHOLDERS WHO ARE
COOPERATING."  BAD FAITH WAS TO BE ATTRIBUTED TO CLAIMANTS WHO OPPOSED
A PLAN FOR A TIME UNTIL THEY WERE "BOUGHT OFF"; THOSE WHO "REFUSED TO
VOTE IN FAVOR OF A PLAN UNLESS  ...  GIVEN SOME PARTICULAR PREFERENTIAL
ADVANTAGE."  HEARINGS ON REVISION OF THE BANKRUPTCY ACT BEFORE THE
COMMITTEE ON THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES, 75TH CONG.,
1ST SESS., ON H.R. 6439, SERIAL 9, PP. 180-182. 

SEE ALSO, ON THE SAME GENERAL TOPIC, MCLAUGHLIN, CAPACITY OF
PLAINTIFF-STOCKHOLDER TO TERMINATE A STOCKHOLDER'S SUIT, 46 YALE L.J.
421; HORNSTEIN, PROBLEMS OF PROCEDURE IN STOCKHOLDER'S DERIVATIVE
SUITS, 42 COL. L. REV. 574, RODGERS AND GROOM, REORGANIZATION OF
RAILROAD CORPORATIONS UNDER SECTION 77 OF THE BANKRUPTCY ACT, 33 COL.
L. REV. 571, 588-601. 

FN11  SEE FEDERAL COMMUNICATIONS COMM'N V. SANDERS RADIO STATION, 309
U.S. 470, 476-7; INTERSTATE COMMERCE COMM'N V. OREGON-WASHINGTON R.
CO., 288 U.S. 14, 25-7. 

FN12  BY VIRTUE OF THEIR STANDING AS SOLE APPELLANTS, POTTS AND BOAG,
DURING THE PENDENCY OF THE APPEAL, DOMINATED THE FATE OF THE
REORGANIZATION AS COMPLETELY AS THOUGH THEY HAD BEEN THE MAJORITY
STOCKHOLDERS OF A GOING CORPORATION.  CF. SOUTHERN PACIFIC CO. V.
BOGERT, 250 U.S. 483, 492:  "BUT THE DOCTRINE BY WHICH THE HOLDERS OF A
MAJORITY OF THE STOCK OF A CORPORATION WHO DOMINATE ITS AFFAIRS ARE
HELD TO ACT AS TRUSTEES FOR THE MINORITY, DOES NOT REST UPON SUCH
TECHNICAL DISTINCTIONS.  IT IS THE FACT OF CONTROL OF THE COMMON
PROPERTY HELD AND EXERCISED, NOT THE PARTICULAR MEANS BY WHICH OR
MANNER IN WHICH THE CONTROL IS EXERCISED, THAT CREATES THE FIDUCIARY
OBLIGATION  ....  THE ESSENTIAL OF THE LIABILITY TO ACCOUNT SOUGHT TO
BE ENFORCED IN THIS SUIT LIES NOT IN FRAUD OR MISMANAGEMENT, BUT IN THE
FACT THAT, HAVING BECOME A FIDUCIARY THROUGH TAKING CONTROL OF THE OLD
HOUSTON COMPANY, THE SOUTHERN PACIFIC HAS SECURED FRUITS WHICH IT HAS
NOT SHARED WITH THE MINORITY.  THE WRONG LAY NOT IN ACQUIRING THE
STOCK, BUT IN REFUSING TO MAKE A PRO RATA DISTRIBUTION ON EQUAL TERMS
AMONG THE OLD HOUSTON COMPANY SHAREHOLDERS. 

FN13  CF. WOODS V. CITY BANK, 312 U.S. 262, 267-269; MEINHARD V.
SALMON, 249 N.Y. 458, 164 N.E. 545. 

FN14  THIS SECTION GIVES THE JUDGE POWER, UNDER CONDITIONS APPLICABLE
HERE, TO ALTER AND MODIFY A REORGANIZATION PLAN EVEN AFTER
CONFIRMATION 

THE CHIEF JUSTICE AND MR. JUSTICE JACKSON CONCUR IN THE RESULT. 

MR. JUSTICE ROBERTS DISSENTS. 
..END :





CANADIAN AVIATOR, LTD. V. U.S., 324 U.S. 215 


NO. 279.  ARGUED JANUARY 5, 1945.  - DECIDED FEBRUARY 26, 1945.  - 421
F.2D 709, REVERSED. 


THE PUBLIC VESSELS ACT PROVIDES THAT "A LIBEL IN PERSONAM IN ADMIRALTY
MAY BE BROUGHT AGAINST THE UNITED STATES  ...  FOR DAMAGES CAUSED BY A
PUBLIC VESSEL OF THE UNITED STATES  ..."  HELD: 

1.  THE REMEDY AFFORDED BY THE ACT IS NOT CONFINED TO CASES WHERE THE
PUBLIC VESSEL IS THE "PHYSICAL INSTRUMENT" BY WHICH THE "PHYSICAL
DAMAGE" IS DONE.  P. 222. 

2.  DAMAGE "CAUSED BY A PUBLIC VESSEL" EMBRACES DAMAGE RESULTING FROM
NEGLIGENCE OF PERSONNEL IN THE OPERATION OF THE VESSEL.  P. 224. 

3.  THE OSCEOLA, 189 U.S. 158; THE VERA CRUZ, NO. 2, 9 L.R., PROB. 
DIV.  96(1884); DOBSON V. UNITED STATES, 27 F.2D 807; AND O'NEAL V.
UNITED STATES, 11 F.2D 869, DISTINGUISHED.  P. 225. 

4.  THE ACT AUTHORIZES THE COURTS TO APPLY PRINCIPLES OF IN REM AS
WELL AS IN PERSONAM LIABILITY IN ADMIRALTY, EVEN THOUGH IT DENIES A
MARITIME LIEN; WHICH IS IN ACCORD WITH THE BROAD PURPOSE OF THE ACT AS
EVIDENCED IN ITS LEGISLATIVE HISTORY.  P. 227. 

5.  A COMPLAINT ALLEGING THAT, WHILE FOLLOWING DIRECTLY ASTERN OF A
PUBLIC VESSEL AS ORDERED BY NAVAL AUTHORITIES, COMPLAINANT'S VESSEL WAS
DAMAGED WHEN IT STRUCK A SUBMERGED WRECK, AND THAT THE ACCIDENT
RESULTED SOLELY FROM THE NEGLIGENCE OF THE PUBLIC VESSEL AND ITS CREW,
STATED A CAUSE OF ACTION UNDER THE ACT.  P. 228. 

CANADIAN AVIATOR, LIMITED V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 323 U.S. 688, TO REVIEW A JUDGMENT AFFIRMING THE
DISMISSAL OF A LIBEL, 52 F.SUPP.  211, UNDER THE PUBLIC VESSELS ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT BRINGS HERE FOR REVIEW A LIBEL FILED BY THE PETITIONER, A
CANADIAN CORPORATION AND OWNER OF THE STEAMSHIP CAVELIER, AGAINST THE
RESPONDENT, THE UNITED STATES GOVERNMENT, TO RECOVER, UNDER THE
PROVISIONS OF THE PUBLIC VESSELS ACT, 1925, 43 STAT. 1112,  FN1
DAMAGES ALLEGED TO HAVE BEEN SUFFERED BY THE CAVELIER DUE TO THE
NEGLIGENT OPERATION OF A PUBLIC VESSEL OF THE UNITED STATES.  THE
UNITED STATES DISTRICT COURT DISMISSED THE LIBEL ON THE GROUND THAT IT
FAILED TO STATE A CAUSE OF ACTION WITHIN THE PUBLIC VESSELS ACT, 1925,
FOR WHICH THE UNITED STATES HAD CONSENTED TO BE SUED.  FN2  THE CIRCUIT
COURT OF APPEALS, ONE JUDGE DISSENTING, AFFIRMED THE DISTRICT COURT. 
FN3 

THE JURISDICTION OF THE UNITED STATES DISTRICT COURT IS BASED ON SEC.
24 OF THE JUDICIAL CODE.  THE PETITION FOR CERTIORARI WAS GRANTED, 323
U.S. 688, BECAUSE THE CIRCUIT COURT OF APPEALS DECIDED A QUESTION OF
GENERAL IMPORTANCE RELATING TO THE CONSTRUCTION OF A FEDERAL STATUTE. 
JURISDICTION OF THIS COURT RESTS ON SEC. 240(A) OF THE JUDICIAL CODE. 

ON AUGUST 4, 1942, THE PETITIONER, THE OWNERS OF THE STEAMSHIP
CAVELIER, FILED A LIBEL IN PERSONAM IN ADMIRALTY IN A FEDERAL DISTRICT
COURT AGAINST THE UNITED STATES TO RECOVER FOR DAMAGES TO ITS SHIP, THE
CAVELIER, ALLEGED TO HAVE BEEN CAUSED BY THE NEGLIGENT OPERATION OF THE
UNITED STATES NAVAL PATROL BOAT, YP 249, A PUBLIC VESSEL OF THE UNITED
STATES.  THE LIBEL AVERRED THAT ON JULY 7, 1942, THE CAVELIER, WHILE EN
ROUTE FROM CANADA TO JAMAICA, WAS ORDERED BY UNITED STATES NAVAL
AUTHORITIES TO ENTER DELAWARE BAY.  UPON APPROACHING THE BAY, THE
CAVELIER RECEIVED FURTHER INSTRUCTIONS FROM THE NAVAL AUTHORITIES THAT
IN HER TRANSIT OF THE WATERS CONSTITUTING THE ENTRANCE TO THE BAY, THE
CAVELIER WAS TO FOLLOW DIRECTLY ASTERN OF THE PATROL BOAT, YP 249, A
PUBLIC VESSEL OF THE UNITED STATES.  WHILE FOLLOWING DIRECTLY ASTERN OF
THE YP 249, AS ORDERED, THE CAVELIER STRUCK A SUBMERGED WRECK AND
SUSTAINED SERIOUS DAMAGES.  IT WAS FURTHER ALLEGED THAT THE COLLISION
WITH THE WRECK WAS DUE "SOLELY TO THE FAULT AND NEGLIGENCE OF THE
UNITED STATES VESSEL YP 249 AND THOSE IN CHARGE OF HER."  FN4  THE
LIBEL ALSO STATED THAT PETITIONER, A CANADIAN CORPORATION, ELECTED TO
HAVE ITS SUIT PROCEED IN ACCORDANCE WITH PRINCIPLES OF LIBELS IN
PERSONAM AND IN REM; THAT IN SIMILAR CIRCUMSTANCES THE GOVERNMENT OF
THE DOMINION OF CANADA ALLOWS NATIONALS OF THE UNITED STATES TO SUE IN
ITS COURTS. 

THE RESPONDENT, UNITED STATES, APPEARED SPECIALLY AND SOUGHT TO HAVE
THE LIBEL DISMISSED BECAUSE IT FAILED TO STATE A CAUSE OF ACTION FOR
WHICH THE UNITED STATES HAD CONSENTED TO BE SUED.  PETITIONER, THE
LIBELANT, OPPOSED THIS ACTION, RELYING ON SEC. 1 OF THE PUBLIC VESSELS
ACT, 1925, WHICH PROVIDED THAT A "LIBEL IN PERSONAM IN ADMIRALTY MAY BE
BROUGHT AGAINST THE UNITED STATES ...  FOR DAMAGES CAUSED BY A PUBLIC
VESSEL OF THE UNITED STATES  ..."  FN5  THE FEDERAL DISTRICT COURT
DISMISSED THE LIBEL ON THE GROUND THAT THE ACCIDENT ALLEGED IN THE
LIBEL WAS NOT CAUSED BY THE "NEGLIGENT OPERATION OF THE VESSEL," THAT
THE VESSEL WAS NOT THE "EFFICIENT CAUSE" OF THE ACCIDENT BUT THAT THE
ACCIDENT AROSE FROM THE "PERSONAL AND INDEPENDENT NEGLIGENCE OF ITS
OFFICERS."  THE COURT HELD THAT THE ACT AUTHORIZED SUIT ONLY WHERE THE
PUBLIC VESSEL WAS THE PROXIMATE CAUSE OF THE DAMAGE. 

THE CIRCUIT COURT OF APPEALS AFFIRMED THE ACTION OF THE DISTRICT
COURT ON THE THEORY THAT THE PHRASE IN THE ACT "CAUSED BY A PUBLIC
VESSEL" MEANT CAUSED BY THOSE IN CHARGE OF THE VESSEL, WITH THE VESSEL
AS THE "NOXIOUS INSTRUMENT," THE "PHYSICAL INSTRUMENT," BY WHICH THE
PHYSICAL DAMAGE WAS DONE; THAT IN THE INSTANT CASE THE PHYSICAL CAUSE
WAS THE SUBMERGED WRECK.  THE CIRCUIT COURT ALSO HELD THAT THE ACT DID
NOT AUTHORIZE RECOVERY ON THE ADMIRALTY PRINCIPLES OF IN REM
LIABILITY. 

THE DISMISSAL BY THE LOWER COURT OF PETITIONER'S LIBEL RAISES THREE
QUESTIONS FOR CONSIDERATION BY THIS COURT:  DOES THE PUBLIC VESSELS
ACT, 1925, AUTHORIZE SUIT AGAINST THE UNITED STATES WHERE THE PUBLIC
VESSEL IS NOT THE PHYSICAL CAUSE, THE "PHYSICAL INSTRUMENT" BY WHICH
THE DAMAGE IS DONE; THAT IS, IS THE ACT CONFINED TO CASES INVOLVING THE
COLLISION SITUATION?  IF NOT, DOES THE ACT, WHICH AUTHORIZES THE FILING
OF A LIBEL IN PERSONAM AGAINST THE UNITED STATES, AUTHORIZE RECOVERY IN
SUCH SUIT ON ADMIRALTY PRINCIPLES OF IN REM AS WELL AS IN PERSONAM
LIABILITY?  FINALLY, IF THE ACT AUTHORIZES RECOVERY ON ADMIRALTY
PRINCIPLES IN REM AND IN PERSONAM, DOES PETITIONER'S LIBEL STATE A
CAUSE OF ACTION UNDER THOSE PRINCIPLES OF ADMIRALTY LAW? 

THE PUBLIC VESSELS ACT, 1925, WAS THE LAST IN A SERIES OF STATUTES
DIRECTED GENERALLY AT AFFORDING PRIVATE VESSEL OWNERS AN ADEQUATE AND
EFFICIENT REMEDY FOR DAMAGES ARISING FROM NEGLIGENT OPERATION OF SHIPS
OWNED BY THE UNITED STATES.  FN6  PRIOR TO 1916 A PRIVATE OWNER WHOSE
SHIP WAS DAMAGED BY NEGLIGENT OPERATION OF A VESSEL OWNED OR OPERATED
BY THE UNITED STATES COULD NOT RECOVER FROM THE UNITED STATES FOR
DAMAGES SUFFERED DUE TO THE UNITED STATES' IMMUNITY FROM SUIT.  ON THE
OTHER HAND, THE UNITED STATES COULD SUE PRIVATE OWNERS FOR DAMAGES
ARISING FROM THEIR NEGLIGENCE.  RECOGNIZING THE INEQUITIES OF THIS
SITUATION, CONGRESS PASSED NUMEROUS PRIVATE ACTS GRANTING RELIEF IN A
PARTICULAR CASE WHERE A PRIVATE VESSEL WAS DAMAGED BY NEGLIGENT
OPERATION OF A GOVERNMENT SHIP.  THE DELAYS, COUPLED WITH THE
INCONVENIENCE TO CONGRESS OF HANDLING EACH CLAIM BY SEPARATE BILL, LED
CONGRESS TO PROVIDE IN THE SHIPPING ACT OF 1916, 39 STAT. 728, THAT
SHIPPING BOARD VESSELS WHILE EMPLOYED AS MERCHANT VESSELS WERE SUBJECT
TO "ALL LAWS, REGULATIONS, AND LIABILITIES GOVERNING MERCHANT VESSELS"
REGARDLESS OF THE FACT THAT THE UNITED STATES OWNED OR HAD AN INTEREST
IN THEM.  FN7 

IN THE LAKE MONROE, 250 U.S. 246, THIS COURT HELD THAT THIS STATUTORY
WAIVER OF SOVEREIGN IMMUNITY FROM SUIT SUBJECTED SHIPPING BOARD
MERCHANT VESSELS TO PROCEEDINGS IN REM IN ADMIRALTY.  SINCE THE ARREST
AND SEIZURE OF A VESSEL INCIDENT TO AN ADMIRALTY PROCEEDING IN REM
PROVED EMBARRASSING, CONGRESS, IN 1920, ADOPTED THE SUITS IN ADMIRALTY
ACT, 41 STAT. 525, FN8  WHICH PROVIDED GENERALLY THAT A "LIBEL IN
PERSONAM" FOR DAMAGES COULD BE FILED AGAINST THE GOVERNMENT IN ANY CASE
WHERE IF THE GOVERNMENT MERCHANT VESSEL WERE PRIVATELY OWNED OR
OPERATED A "PROCEEDING IN ADMIRALTY" COULD BE MAINTAINED, SEC. 2; BUT
THAT VESSELS SUBJECT TO SUIT UNDER THE ACT SHOULD NOT BE SUBJECT TO
SEIZURE OR ARREST, SEC. 1.  ALTHOUGH SEC. 2 OF THE ACT LIMITED SUIT TO
THE "FILING OF A LIBEL IN PERSONAM," THIS COURT INTERPRETED THE
PROVISIONS OF SEC. 3 OF THE ACT TO AUTHORIZE RECOVERY IN SUCH SUIT ON
ADMIRALTY PRINCIPLES OF IN REM AS WELL AS IN PERSONAM LIABILITY.  FN9
EASTERN TRANSPORTATION CO. V. UNITED STATES, 272 U.S. 675.  THE ACT
ALSO PROVIDED THAT THE UNITED STATES SHOULD BE ENTITLED TO THE BENEFITS
OF ALL EXEMPTIONS AND OF ALL LIMITATIONS OF LIABILITY ACCORDED BY LAW
TO OWNERS, CHARTERERS, OPERATORS OR AGENTS OF VESSELS, SEC. 6.  FN10 

AT THE TIME THE SUITS IN ADMIRALTY ACT WAS BEING CONSIDERED BY
CONGRESS, IT WAS PROPOSED TO EXTEND ITS COVERAGE TO INCLUDE "PUBLIC
VESSELS" AS WELL AS MERCHANT VESSELS OF THE UNITED STATES.  APPARENTLY
FEARING THAT SUCH AN EXTENSION OF THE SCOPE OF THE BILL WOULD DELAY
PASSAGE, THE SUITS IN ADMIRALTY ACT WAS ADOPTED, ITS PROVISIONS BEING
CONFINED TO "MERCHANT VESSELS."  FN11 

AFTER THE INTRODUCTION OF SEVERAL BILLS  FN12  DEALING WITH SUITS
AGAINST PUBLIC VESSELS, CONGRESS, IN 1925, ADOPTED THE PUBLIC VESSELS
ACT, 43 STAT. 1112.  IT PROVIDED THAT A "LIBEL IN PERSONAM IN ADMIRALTY
MAY BE BROUGHT AGAINST THE UNITED STATES  ...  FOR DAMAGES CAUSED BY A
PUBLIC VESSEL OF THE UNITED STATES."  SEC. 1.  FN13  VENUE OF SUCH
SUITS IS LAID IN THE DISTRICT COURT FOR THE DISTRICT "IN WHICH THE
VESSEL OR CARGO CHARGED WITH CREATING THE LIABILITY IS FOUND WITHIN THE
UNITED STATES."  FN14  SEC. 2.  IT WAS ALSO PROVIDED THAT SUITS UNDER
THE ACT "SHALL BE SUBJECT TO AND PROCEED IN ACCORDANCE WITH THE
PROVISIONS OF  ...  (SUITS IN ADMIRALTY ACT, 1920, 41 STAT. 525) OR ANY
AMENDMENT THEREOF, IN SO FAR AS THE SAME ARE NOT INCONSISTENT HEREWITH
..."  FN15  THE ACT ALSO SPECIFIED THAT NO SUIT MAY BE BROUGHT BY A
NATIONAL OF A FOREIGN GOVERNMENT UNLESS SAID FOREIGN GOVERNMENT, UNDER
SIMILAR CIRCUMSTANCES, ALLOWS NATIONALS OF THE UNITED STATES TO SUE IN
ITS COURTS, SEC. 5; SECS. 8 AND 9 OF THE ACT CONTAIN PROVISIONS SIMILAR
TO THOSE IN THE SUITS IN ADMIRALTY ACT, PROVIDING THAT THE STATUTE
SHOULD NOT BE CONSTRUED TO RECOGNIZE THE EXISTENCE OF A LIEN AGAINST A
PUBLIC VESSEL AND CONFERRING ON THE UNITED STATES ALL EXEMPTIONS AND
LIMITATIONS OF LIABILITY ACCORDED BY LAW TO OWNERS OF PRIVATE VESSELS. 
FN16 

FIRST.  RESPONDENT CONTENDS THAT SEC. 1 OF THE PUBLIC VESSELS ACT
AUTHORIZING SUITS AGAINST THE UNITED STATES "FOR DAMAGES CAUSED BY A
PUBLIC VESSEL" SHOULD BE CONSTRUED TO APPLY ONLY IN CASES WHERE THE
PUBLIC VESSEL IS THE "PHYSICAL INSTRUMENT" BY WHICH THE "PHYSICAL
DAMAGE" IS DONE, E.G. COLLISION; THAT THEREFORE PETITIONER'S LIBEL DOES
NOT LIE UNDER THE ACT.  SUCH A CONSTRUCTION NARROWLY LIMITS THE ACT'S
RELIEF.  WE CONCLUDE THAT SUCH A NARROW INTERPRETATION OF THE ACT IS
NOT JUSTIFIABLE.  WHILE THE GENERAL HISTORY OF THE ACT AS OUTLINED
ABOVE DOES NOT ESTABLISH THAT THE STATUTE NECESSARILY EXTENDS TO THE
NON-COLLISION CASES IN VIEW OF THE RULE OF STRICT CONSTRUCTION OF
STATUTORY WAIVER OF SOVEREIGN IMMUNITY, UNITED STATES V. SHERWOOD, 312
U.S. 584, 586; EASTERN TRANSPORTATION CO. V. UNITED STATES, SUPRA, WE
THINK CONGRESSIONAL ADOPTION OF BROAD STATUTORY LANGUAGE AUTHORIZING
SUIT WAS DELIBERATE AND IS NOT TO BE THWARTED BY AN UNDULY RESTRICTIVE
INTERPRETATION.  SEE THE LAKE MONROE, 250 U.S. 246; NAHMEH V. UNITED
STATES, 267 U.S. 122, 125-26; EASTERN TRANSPORTATION CO. V. UNITED
STATES, SUPRA; FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229, 231. 

IN 1924, H.R. 6989 WAS INTRODUCED IN THE HOUSE OF REPRESENTATIVES,
ITS PROVISIONS BEING SIMILAR FN17  TO THOSE OF THE PUBLIC VESSELS ACT
AS ADOPTED, WITH THIS MATERIAL DIFFERENCE:  SECTION 1 OF THAT BILL
AUTHORIZED SUIT AGAINST THE UNITED STATES "FOR DAMAGES CAUSED BY
COLLISION BY A PUBLIC VESSEL."  ON REFERENCE TO THE HOUSE COMMITTEE ON
CLAIMS, A SUBSTITUTE BILL, H.R. 9535, WAS REPORTED TO THE HOUSE.  FN18
THIS BILL PROVIDED FOR SUITS "FOR DAMAGES CAUSED BY A PUBLIC VESSEL OF
THE UNITED STATES."  THIS BILL WITH THE LATTER PHRASE INCLUDED
SUBSEQUENTLY BECAME THE PUBLIC VESSELS ACT.  THIS CHANGE IN THE
LANGUAGE OF THE ACT PRIOR TO ITS ADOPTION CONVINCES US THAT CONGRESS
INTENDED TO AUTHORIZE SUITS IN OTHER THAN COLLISION CASES.  THE
SPONSORS OF THE BILL IN BOTH HOUSES OF CONGRESS UNDERSTOOD THAT IT
EXTENDED TO CASES WHERE DAMAGE WAS DONE "BY COLLISION, OR OTHER FAULT
OF GOVERNMENT VESSELS AND GOVERNMENT AGENTS."  FN19  MOREOVER,
CONGRESSIONAL REPORTS ON THIS BILL AND THE COURSE OF DISCUSSION IN THE
NUMEROUS HEARINGS HELD ON PREDECESSOR MEASURES TO THE PRESENT BILL,
INDICATES THAT AUTHORITY TO SUE WAS NOT TO BE LIMITED TO CASES WHERE
THE VESSEL WAS THE PHYSICAL INSTRUMENT THAT CAUSED THE PHYSICAL
DAMAGE.  FN20 

THE USE OF THE PHRASE "CAUSED BY A PUBLIC VESSEL" CONSTITUTES AN
ADOPTION BY CONGRESS OF THE CUSTOMARY LEGAL TERMINOLOGY OF THE
ADMIRALTY LAW WHICH REFERS TO THE VESSEL AS CAUSING THE HARM ALTHOUGH
THE ACTUAL CAUSE IS THE NEGLIGENCE OF THE PERSONNEL IN THE OPERATION OF
THE SHIP.  SUCH PERSONIFICATION OF THE VESSEL, TREATING IT AS A
JURISTIC PERSON WHOSE ACTS AND OMISSIONS, ALTHOUGH BROUGHT ABOUT BY HER
PERSONNEL, ARE PERSONAL ACTS OF THE SHIP FOR WHICH, AS A JURISTIC
PERSON, SHE IS LEGALLY RESPONSIBLE, HAS LONG BEEN RECOGNIZED BY THIS
COURT.  UNITED STATES V. BRIG MALEK ADHEL, 2 HOW.  210, 233-34; THE
CHINA, 7 WALL.  53, 68; RALLI V. TROOP, 157 U.S. 386, 402-3; THE JOHN
G. STEVENS, 170 U.S. 113, 120; THE BARNSTABLE, 181 U.S. 464, 467.  THAT
SUCH WAS THE MEANING ATTRIBUTED TO THIS PHRASE IS FURTHER EVIDENCED BY
SEC. 2 OF THE ACT, RELATING TO VENUE, WHICH PROVIDES THAT VENUE SHALL
LIE IN THE DISTRICT "IN WHICH THE VESSEL OR CARGO CHARGED WITH CREATING
THE LIABILITY IS FOUND."  43 STAT. 1112.  THE CONSENT TO SUIT EMBODIED
IN THE ACT THUS EXTENDS TO CASES WHERE THE NEGLIGENCE OF THE PERSONNEL
OF A PUBLIC VESSEL IN THE OPERATION OF THE VESSEL CAUSES DAMAGE TO
OTHER SHIPS, THEIR CARGOES, AND PERSONNEL, REGARDLESS OF PHYSICAL
CONTACT BETWEEN THE TWO SHIPS,  FN21  AND WHERE PRINCIPLES OF ADMIRALTY
LAW IMPOSE LIABILITY ON PRIVATE PARTIES.  THERE SEEMS NO LOGICAL REASON
FOR ALLOWING RECOVERY FOR COLLISION AND REFUSING RECOVERY FOR DAMAGES
CAUSED BY OTHER MOVEMENTS OF THE OFFENDING VESSEL. 

THE FACT THAT THE COMMITTEE REPORTS ON THE BILL STATE THAT THE "CHIEF
PURPOSE" OF THE ACT IS TO AUTHORIZE RECOVERY IN COLLISION CASES, THAT
THE DEPARTMENTAL LETTERS ATTACHED TO THE REPORT CONSIDER PRINCIPALLY
THE "COLLISION" SITUATION, DOES NOT REQUIRE THAT THE STATUTE SHOULD BE
SO LIMITED.  FN22  RESPONDENT RELIES ON THE OSCEOLA, 189 U.S. 158, IN
WHICH IT WAS HELD THAT A WISCONSIN STATUTE IMPOSING LIABILITY "FOR ALL
DAMAGES  ...  DONE TO PERSONS OR PROPERTY BY SUCH SHIP," DID NOT APPLY
TO INJURIES SUFFERED BY A MEMBER OF A SHIP'S CREW ARISING FROM THE
NEGLIGENCE OF THE MASTER OF THE VESSEL, SINCE THE DAMAGE WAS NOT "DONE
BY THE SHIP HERSELF, AS THE OFFENDING THING,  ..."  189 U.S. 158, 176. 
SINCE THAT CASE INVOLVED A SUIT BY A MEMBER OF THE CREW AGAINST HIS
EMPLOYER-OWNER OF THE VESSEL, THE HOLDING IN THAT DECISION ON ITS FACTS
IS CLEARLY INAPPLICABLE TO THE INSTANT CASE.  MOREOVER, THE LANGUAGE IN
THE WISCONSIN STATUTE IS NARROWER IN SCOPE THAN THAT IN THE PUBLIC
VESSELS ACT, 1925, WHICH REFERS GENERALLY TO "DAMAGES CAUSED BY A
PUBLIC VESSEL."  FURTHERMORE, THE LEGISLATIVE HISTORY OF THE PUBLIC
VESSELS ACT REQUIRES A DIFFERENT RESULT IN SO FAR AS THE OSCEOLA CASE
INTERPRETS THE WISCONSIN STATUTE TO APPLY ONLY TO CASES WHERE THE
VESSEL IS ITSELF THE PHYSICAL CAUSE OF THE DAMAGE.  THESE LATTER TWO
CONSIDERATIONS SERVE ALSO TO DISTINGUISH THE VERA CRUZ, NO. 2, 9 L.R.,
PROB.  DIV.  96(1884). RESPONDENT ALSO RELIES ON DOBSON V. UNITED
STATES, 27 F.2D 807, AND O'NEAL V. UNITED STATES, 11 F.2D 869.  THESE
CASES ARE NOT APPOSITE ON THE QUESTION UNDER CONSIDERATION SINCE THEY
ALSO INVOLVED SUITS FOR DAMAGES, FOR PERSONAL INJURIES SUSTAINED BY A
SEAMAN EMPLOYEE ABOARD HIS OWN SHIP, AGAINST THE UNITED STATES AS
EMPLOYER. 

SECOND.  PETITIONER, EVIDENTLY RELYING ON SEC. 2 OF THE ACT, STATES
IN ITS LIBEL THAT IT ELECTS TO HAVE THE ACTION PROCEED ON PRINCIPLES OF
IN REM AS WELL AS IN PERSONAM LIABILITY.  FN23  AS THE CIRCUIT COURT OF
APPEALS APPARENTLY HOLDS THAT THE ACT DOES NOT AUTHORIZE RECOVERY ON
PRINCIPLES OF IN REM LIABILITY BECAUSE OF THE STATUTORY DENIAL OF A
MARITIME LIEN, WE TURN TO A CONSIDERATION OF THIS HOLDING.  DOES THE
PUBLIC VESSELS ACT WHICH AUTHORIZES FILING OF A "LIBEL IN PERSONAM"
AUTHORIZE THE COURTS TO APPLY PRINCIPLES OF IN REM AS WELL AS IN
PERSONAM LIABILITY IN ADMIRALTY?  FN24  AS WAS INDICATED, P. 219 SUPRA,
THIS COURT HELD THAT THE SUITS IN ADMIRALTY ACT, WHICH ALSO AUTHORIZES
FILING OF A "LIBEL IN PERSONAM" AUTHORIZES THE COURTS TO GRANT JUDGMENT
ON IN REM AS WELL AS IN PERSONAM PRINCIPLES, EXCEPT THAT THE GOVERNMENT
VESSEL WAS NOT SUBJECT TO SEIZURE OR ARREST.  SECTION 3 OF THAT ACT,
"PROCEDURE IN CASES OF LIBEL IN PERSONAM," N25 SPECIFICALLY AUTHORIZES
A LIBELANT, IF HE SO ELECTS, TO PROCEED IN ACCORDANCE WITH PRINCIPLES
OF LIBELS IN REM IF IT APPEARS THAT HAD THE VESSEL BEEN PRIVATELY OWNED
A LIBEL IN REM MIGHT BE MAINTAINED; ELECTION TO SO PROCEED IS NOT TO
PRECLUDE THE LIBELANT FROM SEEKING RELIEF IN PERSONAM IN THE SAME
SUIT.  ALTHOUGH THE PUBLIC VESSELS ACT DOES NOT HAVE A SIMILAR
PROVISION, SEC. 2 OF THE PUBLIC VESSELS ACT EXPRESSLY PROVIDES THAT
"SUITS SHALL BE SUBJECT TO AND PROCEED IN ACCORDANCE WITH THE
PROVISIONS" OF THE SUITS IN ADMIRALTY ACT, "IN SO FAR AS THE SAME ARE
NOT INCONSISTENT" WITH THE PROVISIONS OF THE PUBLIC VESSELS ACT.  FN26
SINCE THERE IS NOTHING IN THE PUBLIC VESSELS ACT THAT IS INCONSISTENT
WITH THIS PROVISION OF THE SUITS IN ADMIRALTY ACT, WE HOLD THAT THE
INCORPORATION CLAUSE APPLIES.  OTHER PROVISIONS OF THE PUBLIC VESSELS
ACT SUPPORT SUCH INCORPORATION.  AUTHORITY IS GIVEN TO SUE GENERALLY
"IN ADMIRALTY"; THIS BROAD GENERIC TERM IMPLIES A RIGHT TO INVOKE
PRINCIPLES OF IN REM AND IN PERSONAM LIABILITY.  FURTHERMORE, IN
EASTERN TRANSPORTATION CO. V. UNITED STATES, SUPRA, WE HELD THAT
AUTHORITY TO RESORT TO BOTH TYPES OF PRINCIPLES OF ADMIRALTY LIABILITY
WAS BORNE OUT BY THE FACT THAT THE SUITS IN ADMIRALTY ACT PROVIDED THAT
THE UNITED STATES SHOULD BE ENTITLED TO ALL THE EXEMPTIONS ACCORDED TO
PRIVATE PERSONS UNDER ADMIRALTY LAW.  WE THERE HELD: 

"THE NECESSARY IMPLICATION IS THAT IF, UNDER THE HARTER ACT  ...  OR
THE LIMITATION OF LIABILITY ACT,  ...  THE UNITED STATES AS OWNER OF A
MERCHANT VESSEL SHOULD NOT BE ABLE TO SHOW PERFORMANCE OF THE
CONDITIONS UPON WHICH SUCH STATUTORY LIMITATIONS OF LIABILITY ARE
GRANTED, IT MUST ASSUME THE PERSONAL LIABILITY FOR NEGLIGENCE IN SUCH
CASES EXACTLY AS A PRIVATE OWNER WOULD."  (272 U.S. 675, 690-91.) 

THE PUBLIC VESSELS ACT CONTAINS THE SAME EXEMPTION PROVISION AS THAT
IN THE SUITS IN ADMIRALTY ACT.  FN27  THIS INTERPRETATION OF THE ACT
ACCORDS WITH THE BROAD PURPOSE EXPRESSED IN THE CONGRESSIONAL HEARINGS
AND REPORTS ON THE ACT.  FN28  IN ADDITION, SUCH AN INTERPRETATION
ACCOMPLISHES CONGRESS' PURPOSE TO GRANT FOREIGN NATIONALS THE SAME
RIGHTS AS WOULD BE ACCORDED OUR NATIONALS IN FOREIGN COURTS IN A
SIMILAR SITUATION; A NARROWER INTERPRETATION WOULD LIMIT THE RECIPROCAL
EFFECT OF THIS ACT.  FN29 

THIRD.  SINCE WE HOLD THAT THE PUBLIC VESSELS ACT WAS INTENDED TO
IMPOSE ON THE UNITED STATES THE SAME LIABILITY (APART FROM SEIZURE OR
ARREST UNDER A LIBEL IN REM) AS IS IMPOSED BY THE ADMIRALTY LAW ON THE
PRIVATE SHIPOWNER, IT REMAINS TO BE CONSIDERED WHETHER PETITIONER
STATES A VALID CAUSE OF ACTION UNDER GENERAL PRINCIPLES OF ADMIRALTY
LAW, IN REM AND IN PERSONAM.  PETITIONER ALLEGES THAT THE RESPONDENT'S
VESSEL, HAVING UNDERTAKEN TO GUIDE PETITIONER'S BOAT, THE CAVELIER,
THROUGH THE WATERS AT THE ENTRANCE OF THE BAY, DID SO IN A NEGLIGENT
FASHION CAUSING PETITIONER TO STRIKE A SUBMERGED WRECK; THAT THE
ACCIDENT WAS CAUSED SOLELY BY THE NEGLIGENCE OF YP 249 AND ITS CREW. 
IT NEEDS NO EXTENDED CITATION OF AUTHORITY TO SHOW THAT WHERE A TUG
NEGLIGENTLY GROUNDS ITS TOW, THE TUG AND ITS OWNER ARE LIABLE FOR THE
DAMAGES RESULTING THEREFROM.  THE QUICKSTEP, 9 WALL.  665; THE JOHN G.
STEVENS, 170 U.S. 113; THE TEMPLE EMERY, 122 F. 180; THE W. G. MASON,
142 F. 913; SEE, THE CASPIAN, 14 F.2D 1013; THE MURRELL, 200 F. 826;
THE SALLY MCDEVITT V. THE J. W. PAXON, 24 F. 302; THE RESCUE, 74 F.
847.  FN30  THE FACT THAT THE CAVELIER WAS NOT FASTENED TO THE YP 249
BY A TOW ROPE IS IRRELEVANT.  FN31  THE LIBEL AVERS THAT SHE WAS UNDER
ORDERS BY THE NAVAL AUTHORITIES TO PROCEED DIRECTLY ASTERN OF THE YP
249; FOR ALL PRACTICAL PURPOSES SHE WAS AS FIRMLY FASTENED TO THE STERN
OF THE YP 249 AS IF SHE HAD BEEN IN TOW. 

THE JUDGMENT OF THE CIRCUIT COURT IS REVERSED, AND THE CAUSE REMANDED
TO THE DISTRICT COURT WITH DIRECTION TO PROCEED WITH CONSIDERATION OF
THE CASE ON THE MERITS. 

FN1  43 STAT. 1112.  SECTION 1 PROVIDES:  "THAT 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  ..." 

FN2  CANADIAN AVIATOR, LTD. V. UNITED STATES, 52 F.SUPP.  211. 

FN3  CANADIAN AVIATOR, LTD. V. UNITED STATES, 142 F.2D 709. 

FN4  THE PETITIONER'S LIBEL ALLEGED THE FOLLOWING SPECIFIC ACTS OF
NEGLIGENCE: 

"1.  SHE WAS NOT IN CHARGE OF A COMPETENT PERSON. 

"2.  SHE FAILED TO KEEP A GOOD LOOK-OUT. 

"3.  SHE FAILED TO GUIDE THE CAVELIER SAFELY THROUGH THE WATERS
CONSTITUTING THE ENTRANCE TO DELAWARE BAY. 

"4.  SHE LED THE CAVELIER DIRECTLY OVER A SUBMERGED WRECK. 

"5.  SHE FAILED TO GIVE THE CAVELIER PROPER OR ADEQUATE GUIDANCE AS
TO MAKING A SAFE ENTRANCE INTO DELAWARE BAY." 

FN5  SEE NOTE 1, SUPRA. 

FN6  BENEDICT, ADMIRALTY (6TH ED.)  VOL.  1, 437; ROBINSON,
ADMIRALTY, 266; LORD, ADMIRALTY CLAIMS AGAINST THE GOVERNMENT, 19
COLUMBIA L. REV. 467; BORCHARD, GOVERNMENT LIABILITY IN TORT, 34 YALE
L.J. 1, 35-41; 39 YALE L.J. 1189. 

FN7  SECTION 9 PROVIDES, IN PART, 39 STAT. 730-31: 

"EVERY VESSEL PURCHASED, CHARTERED, OR LEASED FROM THE BOARD  ...
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." 

FN8  41 STAT. 525-26, SEC. 1:  "THAT NO VESSEL OWNED BY THE UNITED
STATES  ...  OR IN THE POSSESSION OF THE UNITED STATES  ...  AND NO
CARGO OWNED OR POSSESSED BY THE UNITED STATES  ... SHALL HEREAFTER, 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  ... 

"SEC. 2.  THAT 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 SUCH CORPORATION, AS
THE CASE MAY BE, PROVIDED THAT SUCH VESSEL IS EMPLOYED AS A MERCHANT
VESSEL OR IS A TUG BOAT 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  ...." 

FN9  41 STAT. 526:  "THAT SUCH SUITS SHALL PROCEED AND SHALL BE HEARD
AND DETERMINED ACCORDING TO THE PRINCIPLES OF LAW AND TO THE RULES OF
PRACTICE OBTAINING IN LIKE CASES BETWEEN PRIVATE PARTIES  ....  IF THE
LIBELANT SO ELECTS IN HIS LIBEL THE SUIT MAY PROCEED IN ACCORDANCE WITH
THE PRINCIPLES OF LIBELS IN REM WHEREVER IT SHALL APPEAR THAT HAD THE
VESSEL OR CARGO BEEN PRIVATELY OWNED AND POSSESSED A LIBEL IN REM MIGHT
HAVE BEEN MAINTAINED.  ELECTION SO TO PROCEED SHALL NOT PRECLUDE THE
LIBELANT IN ANY PROPER CASE FROM SEEKING RELIEF IN PERSONAM IN THE SAME
SUIT  ...." 

FN10  41 STAT. 527:  "SEC.  6.  THAT THE UNITED STATES OR SUCH
CORPORATION SHALL BE ENTITLED TO THE BENEFITS OF ALL EXEMPTIONS AND OF
ALL LIMITATIONS OF LIABILITY ACCORDED BY LAW TO THE OWNERS, CHARTERERS,
OPERATORS, OR AGENTS OF VESSELS." 

FN11  HEARINGS OF THE HOUSE COMMITTEE ON JUDICIARY, S. 3076 AND H.R.
7124, NOV. 13, 1919, 66TH CONG., 1ST SESS., AT P. 7. 

FN12  H.R. 13591, APRIL 13, 1920, 66TH CONG., 2D SESS.; H.R. 6989,
FEBRUARY 14, 1924, 68TH CONG., 1ST SESS.; H.R. 9075, MAY 5, 1924, 68TH
CONG., 1ST SESS.; H.R. 9535, MAY 29, 1924, 68TH CONG., 1ST SESS. 

FN13  SEE NOTE 1. 

FN14  THE ACT ALSO CONTAINED A SPECIAL VENUE PROVISION FOR CASES
WHERE THE VESSEL WAS OUTSIDE THE TERRITORIAL WATERS OF THE UNITED
STATES.  43 STAT. 1112. 

FN15  43 STAT. 1112:  "SEC.  2.  THAT SUCH SUIT SHALL BE BROUGHT IN
THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT IN WHICH THE
VESSEL OR CARGO CHARGED WITH CREATING THE LIABILITY IS FOUND WITHIN THE
UNITED STATES,  ...  SUCH SUITS SHALL BE SUBJECT TO AND PROCEED IN
ACCORDANCE WITH THE PROVISIONS OF AN ACT ENTITLED 'AN ACT AUTHORIZING
SUITS AGAINST THE UNITED STATES IN ADMIRALTY, SUITS FOR SALVAGE
SERVICES, AND PROVIDING FOR THE RELEASE OF MERCHANT VESSELS BELONGING
TO THE UNITED STATES FROM ARREST AND ATTACHMENT IN FOREIGN
JURISDICTIONS, AND FOR OTHER PURPOSES,' APPROVED MARCH 9, 1920, OR ANY
AMENDMENT THEREOF, IN SO FAR AS THE SAME ARE NOT INCONSISTENT HEREWITH,
EXCEPT THAT NO INTEREST SHALL BE ALLOWED ON ANY CLAIM UP TO THE TIME OF
THE RENDITION OF JUDGMENT UNLESS UPON A CONTRACT EXPRESSLY STIPULATING
FOR THE PAYMENT OF INTEREST." 

FN16  43 STAT. 1113:  "SEC.  8.  NOTHING CONTAINED IN THIS ACT SHALL
BE CONSTRUED TO RECOGNIZE THE EXISTENCE OF OR AS CREATING A LIEN
AGAINST ANY PUBLIC VESSEL OF THE UNITED STATES. 

"SEC. 9.  THE UNITED STATES SHALL BE ENTITLED TO THE BENEFITS OF ALL
EXEMPTIONS AND OF ALL LIMITATIONS OF LIABILITY ACCORDED BY LAW TO THE
OWNERS, CHARTERERS, OPERATORS OR AGENTS OF VESSELS." 

FN17  H.R. 6989, 68TH CONG., 2D SESS., PROVIDED:  "THAT A LIBEL IN
PERSONAM IN ADMIRALTY MAY BE BROUGHT AGAINST THE UNITED STATES,  ...
FOR DAMAGES CAUSED BY COLLISION BY A PUBLIC VESSEL OF THE UNITED
STATES,  ..." 

THIS BILL WAS HIGHLY SIMILAR TO THE PUBLIC VESSELS ACT, 1925, 43
STAT. 1112, AS FINALLY ADOPTED.  A MATERIAL VARIANCE, OTHER THAN THE
ONE MENTIONED ABOVE, WAS A PROVISION MAKING THE CONSENT OF THE ATTORNEY
GENERAL A CONDITION PRECEDENT TO SUIT UNDER THE BILL. 

FN18  H. REP. NO. 913, MAY 31, 1924, 68TH CONG., 1ST SESS. 

FN19  66 CONG. REC. 2087.  REPRESENTATIVE UNDERHILL, THE SPONSOR OF
THE BILL, STATED: 

"THE BILL I HAVE INTRODUCED SIMPLY ALLOWS SUITS IN ADMIRALTY TO BE
BROUGHT BY OWNERS OF VESSELS WHOSE PROPERTY HAS BEEN DAMAGED BY
COLLISION OR OTHER FAULT OF GOVERNMENT VESSELS AND GOVERNMENT AGENTS." 

SIMILARLY, SENATOR BAYARD, IN DISCUSSING THE MEASURE IN THE SENATE,
SAID, 66 CONG. REC. 3560: 

"IT WOULD GIVE A PERSON AGGRIEVED BECAUSE OF AN ACCIDENT BY REASON OF
THE SHORTCOMINGS OF A UNITED STATES SHIP THE RIGHT TO GO INTO A
DISTRICT COURT AND PROSECUTE HIS ACTION.  IT PROVIDES FOR THE
APPEARANCE OF THE ATTORNEY GENERAL OF THE UNITED STATES, AND ALL
MARITIME ACCIDENTS OF ANY KIND RESULTING FROM COLLISION, AND SO ON, ARE
TAKEN CARE OF.  A GREAT DEAL OF MONEY WOULD BE SAVED TO THE
GOVERNMENT." 

FN20  H. REP. NO. 913, 68TH CONG., 1ST SESS., AT P. 63; S. REP. NO.
941, 68TH CONG., 2D SESS., AT P. 3; SEE ALSO H. REP. NO. 1301, 66TH
CONG., 3RD SESS., FEB. 7, 1921, SEE ESPECIALLY LETTER OF THE ACTING
SECRETARY OF THE NAVY, P. 8; HEARINGS BEFORE COMMITTEE ON JUDICIARY OF
THE HOUSE OF REPRESENTATIVES, ON H.R. 9075, 68TH CONG., 1ST SESS., MAY
21, 1924, PP. 6, 19, 21, 23, 28, 30. 

FN21  SEE COASTWISE TRANSPORTATION CORP. V. UNITED STATES, 43 F.2D
401; THE HARDING HIGHWAY, 53 F.2D 938. 

FN22  H. REP. 913, 68TH CONG., 1ST SESS., PP. 1, 6; S. REP. NO. 941,
68TH CONG., 2D SESS., PP. 1, 6. 

FN23  SEE ADMIRALTY RULES, SUPREME COURT, RULE 14: 

"IN ALL SUITS FOR PILOTAGE OR DAMAGE BY COLLISION, THE LIBELLANT MAY
PROCEED IN REM AGAINST THE SHIP AND/OR IN PERSONAM AGAINST THE MASTER
AND/OR THE OWNER."    FN24  SEE NOTE 1, SUPRA.  AT THE TIME OF THE
COMMITTEE REPORTS ON H.R. 9535(WHICH WHEN ADOPTED BECAME THE PUBLIC
VESSELS ACT), THE COURTS HAD NOT YET INTERPRETED THE SUITS IN ADMIRALTY
ACT, 41 STAT. 525, TO AUTHORIZE RECOVERY ON ADMIRALTY PRINCIPLES OF
BOTH IN REM AND IN PERSONAM LIABILITY.  SEE EASTERN TRANSPORTATION CO.
V. UNITED STATES, 272 U.S. 675(1927).  WE FIND NO DISCUSSION OF WHETHER
SEC. 2 OF THE PUBLIC VESSELS ACT IMPORTED BOTH PRINCIPLES INTO ITS
TEXT.  THE PROBLEM HAD BEEN ADVERTED TO IN THE ATTORNEY GENERAL'S
LETTERS OF OPINION TO THE COMMITTEES CONSIDERING THE PROBLEM.  H. REP.
NO. 913, P. 12, 68TH CONG., 1ST SESS.; S. REP. NO. 941, P. 12, 68TH
CONG., 2D SESS.; HEARINGS BEFORE THE COMMITTEE ON JUDICIARY OF THE
HOUSE OF REPRESENTATIVES ON H.R. 9075, MAY 21, 1924, PP. 30, 31 AND
34. 

FN25 46 U.S.C. SEC. 743; SEE NOTE 9, SUPRA. 

FN26  SEE NOTE 15, SUPRA. 

FN27  SEE NOTE 16, SUPRA. 

FN28  SEE NOTE 20, SUPRA. 

FN29  SEE NOTE 16, SUPRA. 

FN30  BENEDICT, ADMIRALTY (6TH ED.), VOL. 1, PP. 363-5, 367-69. 

FN31  IT IS CLEAR THAT TORT LIABILITY IN ADMIRALTY DOES NOT REQUIRE
PHYSICAL CONTACT BETWEEN THE OFFENDING VESSEL AND ITS VICTIM.  SEE
LEATHERS V. BLESSING, 105 U.S. 626, 630:  "NOR IS THE TERM 'TORT,' WHEN
USED IN REFERENCE TO ADMIRALTY JURISDICTION, CONFINED TO WRONGS OR
INJURIES COMMITTED BY DIRECT FORCE, BUT IT INCLUDES WRONGS SUFFERED IN
CONSEQUENCE OF THE NEGLIGENCE OR MALFEASANCE OF OTHERS, WHERE THE
REMEDY AT COMMON-LAW IS BY AN ACTION ON THE CASE."  SEE ALSO EASTERN
TRANSPORTATION CO. V. UNITED STATES, 272 U.S. 675; IN RE FASSETT, 142
U.S. 479, 485; PHILADELPHIA, W. & B.R. CO. V. PHILADELPHIA & H. DE G.
TOWBOAT CO., 23 HOW.  209, 215-16; THE LYNDHURST, 92 F. 681; THE
KRONPRINZESSIN CECILIE, 192 F. 27; THE CAMPANIA, 203 F. 855; THE
WASHINGTON IRVING, 250 F. 797; THE LUKE, 19 F.2D 923, AFF'D, 19 F.2D
925; COASTWISE TRANSPORTATION CORP. V. UNITED STATES, 43 F.2D 401; THE
J. C. HART, 43 F.2D 566; THE FAVORITA, 43 F.2D 569. 
..END :















CATLIN V. UNITED STATES, 324 U.S. 229 


NO. 419.  ARGUED FEBRUARY 1, 2, 1945.  - DECIDED FEBRUARY 26, 1945.  -
142 F.2D 781, AFFIRMED. 


1.  IN A PROCEEDING INSTITUTED BY A PETITION IN THE DISTRICT COURT FOR
THE CONDEMNATION OF LAND UNDER THE WAR PURPOSES ACT OF 1917, A
"JUDGMENT" ENTERED UPON A DECLARATION OF TAKING FILED PURSUANT TO THE
DECLARATION OF TAKING ACT OF 1931, AND A SUBSEQUENT ORDER DENYING THE
LANDOWNER'S MOTION TO VACATE THE JUDGMENT AND TO DISMISS THE PETITION,
HELD NOT "FINAL DECISIONS" UNDER SEC. 128 OF THE JUDICIAL CODE AND
THEREFORE NOT APPEALABLE.  P. 232. 

2.  THE RIGHT OF THE LANDOWNER TO CHALLENGE THE VALIDITY OF THE
TAKING, FOR NONCONFORMITY WITH THE PRESCRIBED STATUTORY PURPOSES, WAS
NOT ABROGATED BY THE DECLARATION OF TAKING ACT; BUT THE RIGHT OF APPEAL
IN THIS RELATION MAY BE EXERCISED ONLY WHEN FINAL JUDGMENT, DISPOSING
OF THE CAUSE IN ITS ENTIRETY, HAS BEEN RENDERED.  P. 240. 

CATLIN ET AL., TRUSTEES, V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 323 U.S. 696, TO REVIEW THE DISMISSAL OF AN APPEAL FROM A
JUDGMENT AND ORDER OF THE DISTRICT COURT IN A CONDEMNATION PROCEEDING. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE PROCEEDING IS FOR THE CONDEMNATION OF LAND IN MADISON COUNTY,
ILLINOIS, UNDER THE WAR PURPOSES ACT OF 1917.  FN1  THE QUESTION FOR
REVIEW IS WHETHER ORDERS ENTERED IN THE COURSE OF THE PROCEEDINGS ARE
APPEALABLE AS "FINAL DECISIONS" WITHIN THE MEANING OF SEC. 128 OF THE
JUDICIAL CODE, AS AMENDED, 28 U.S.C. SEC. 225(A).  FN2 

THE PETITION FOR CONDEMNATION WAS FILED IN THE DISTRICT COURT MARCH
31, 1942.  THE SAME DAY AN ORDER FOR IMMEDIATE POSSESSION WAS ENTERED
EX PARTE.  ON NOVEMBER 12, 1942, PURSUANT TO THE DECLARATION OF TAKING
ACT OF FEBRUARY 26, 1931,  FN3  THE SECRETARY OF WAR FILED A
DECLARATION AND DEPOSITED IN COURT $43,579.00 AS THE ESTIMATED
COMPENSATION FOR TRACT ED-7, TO WHICH PETITIONERS ASSERT OWNERSHIP AS
TRUSTEES.  THE COURT THEREUPON ENTERED "JUDGMENT," LIKEWISE EX PARTE,
DECREEING THAT TITLE HAD VESTED IN THE UNITED STATES UPON THE FILING OF
THE DECLARATION AND MAKING OF THE DEPOSIT, ALSO DECLARING THE RIGHT OF
JUST COMPENSATION "NOW VESTED IN THE PERSONS ENTITLED THERETO," AND
HOLDING THE CAUSE OPEN FOR FURTHER "ORDERS, JUDGMENTS AND DECREES." 

THEREAFTER, ON AUGUST 2, 1943, AN ORDER FOR SERVICE OF PROCESS BY
PUBLICATION WAS ENTERED, AND IN OCTOBER FOLLOWING PETITIONERS MOVED TO
VACATE THE "JUDGMENT" AND TO DISMISS THE PETITION AS TO TRACT ED-7. 
AFTER THIS THE GOVERNMENT AMENDED ITS PETITION  FN4  AND PETITIONERS
FILED AN AMENDED MOTION TO VACATE AND DISMISS,  FN5  WHICH THE COURT
DENIED.  FROM THIS ORDER AND THE ORDER ENTERING THE "JUDGMENT" ON THE
DECLARATION OF TAKING, PETITIONERS APPEALED.  THE CIRCUIT COURT OF
APPEALS HELD THE ORDERS NOT FINAL DECISIONS WITHIN SEC. 128 AND
DISMISSED THE APPEAL.  142 F.2D 781.  WE GRANTED CERTIORARI, 323 U.S.
696, IN ORDER TO RESOLVE CONFLICT UPON THIS QUESTION AMONG SEVERAL
CIRCUIT COURTS OF APPEALS.  FN6 

WE THINK THE JUDGMENT WAS RIGHT.  PETITIONERS' MOTIONS RAISED ISSUES
GROUNDED IN CONTENTIONS THAT THE TAKING WAS NOT FOR A PURPOSE
AUTHORIZED BY THE WAR PURPOSES ACT.  FN7  ACCORDINGLY THEY URGED THAT
NEITHER PETITION STATED A CAUSE OF ACTION, THE COURT ACQUIRED NO
JURISDICTION OF THE CAUSE OR TO ENTER THE ORDER RELATING TO TITLE, AND
IT WAS ERROR TO DENY THE MOTION TO VACATE AND TO DISMISS.  SINCE THE
ISSUE HERE IS WHETHER THE ORDERS ARE FINAL, FOR PURPOSES OF APPEAL, WE
ASSUME, THOUGH WE DO NOT DECIDE, THAT THE SUBSTANTIVE ISSUES HAVE
SUFFICIENT MERIT TO WARRANT DETERMINATION UPON REVIEW.  EVEN SO, WE
THINK PETITIONERS HAVE MISTAKEN THEIR REMEDY. 

THEIR RIGHT TO APPEAL RESTS UPON SEC. 128 OF THE JUDICIAL CODE.  THIS
LIMITS REVIEW TO "FINAL DECISIONS" IN THE DISTRICT COURT.  A "FINAL
DECISION" GENERALLY IS ONE WHICH ENDS THE LITIGATION ON THE MERITS AND
LEAVES NOTHING FOR THE COURT TO DO BUT EXECUTE THE JUDGMENT.  ST.
LOUIS, I.M. & S.R. CO. V. SOUTHERN EXPRESS CO., 108 U.S. 24, 28. 
HENCE, ORDINARILY IN CONDEMNATION PROCEEDINGS APPELLATE REVIEW MAY BE
HAD ONLY UPON AN ORDER OR JUDGMENT DISPOSING OF THE WHOLE CASE, AND
ADJUDICATING ALL RIGHTS, INCLUDING OWNERSHIP AND JUST COMPENSATION, AS
WELL AS THE RIGHT TO TAKE THE PROPERTY.  THIS HAS BEEN THE REPEATED
HOLDING OF DECISIONS HERE.  FN8  THE RULE APPLIES TO REVIEW BY THIS
COURT OF JUDGMENTS OF STATE COURTS, IN ADVANCE OF DETERMINATION OF JUST
COMPENSATION, ALTHOUGH BY LOCAL STATUTE "JUDGMENTS OF CONDEMNATION,"
I.E., OF THE RIGHT TO CONDEMN PARTICULAR PROPERTY, ARE REVIEWABLE
BEFORE COMPENSATION IS FOUND AND AWARDED.  WICK V. SUPERIOR COURT, 278
U.S. 574, 575; PUBLIC SERVICE CO. V. LEBANON, 305 U.S. 558, 671; CF.
DIECKMANN V. UNITED STATES, 88 F.2D 902.  THE FOUNDATION OF THIS POLICY
IS NOT IN MERELY TECHNICAL CONCEPTIONS OF "FINALITY."  IT IS ONE
AGAINST PIECEMEAL LITIGATION.  "THE CASE IS NOT TO BE SENT UP IN
FRAGMENTS...."  LUXTON V. NORTH RIVER BRIDGE CO., 147 U.S. 337, 341. 
REASONS OTHER THAN CONSERVATION OF JUDICIAL ENERGY SUSTAIN THE
LIMITATION.  ONE IS ELIMINATION OF DELAYS CAUSED BY INTERLOCUTORY
APPEALS. 

THE RULE APPLIES TO PROCEEDINGS UNDER THE WAR PURPOSES ACT OF 1917. 
FN9  THAT ACT DOES NOT PURPORT TO CHANGE OR DEPART FROM THE GENERALLY
PREVAILING RULE CONCERNING APPEALS IN CONDEMNATION PROCEEDINGS.  IT IS
AN AMENDED VERSION OF THE 1890 ACT, UNDER WHICH FROM ITS ENACTMENT TO
NOW THAT RULE HAS BEEN APPLIED, EXCEPT IN THE THREE DECISIONS OF
CIRCUIT COURTS OF APPEALS REACHING THE CONTRARY RESULT, WHERE, HOWEVER,
THE DECLARATION OF TAKING ACT OF 1931 ALSO WAS INVOLVED.  FN10 THE 1917
ACT PURPORTS TO AUTHORIZE NO JUDGMENT EXCEPT ONE "FOR THE ACQUIREMENT
BY CONDEMNATION OF ANY LAND," ETC., FOR THE PURPOSES SPECIFIED OR,
NECESSARILY, ONE FINALLY DENYING THIS.  THE PROVISION FOR THE
PROCEEDINGS "TO BE PROSECUTED IN ACCORDANCE WITH THE LAWS RELATING TO
SUITS FOR THE CONDEMNATION OF PROPERTY OF THE STATES WHEREIN THE
PROCEEDINGS MAY BE INSTITUTED  ..."  HAD NO PURPOSE TO MAKE THE RIGHT
OF APPEAL IN SUCH PROCEEDINGS DEPEND UPON AND VARY WITH THE LOCAL
PROCEDURE IN THIS RESPECT, CF. WICK V. SUPERIOR COURT, SUPRA; PUBLIC
SERVICE CO. V. LEBANON, SUPRA, OR TO INCORPORATE LOCAL IDEAS OF
"FINALITY" IN THE APPLICATION OF SEC. 128 TO SUCH SUITS.  THE LANGUAGE
MAY BE APPLIED IN OTHER WAYS WITHOUT INTRODUCING SO MUCH LACK OF
UNIFORMITY INTO THE APPLICATION OF SEC. 128, IF INDEED THE QUOTED
PROVISION HAS NOT BEEN LARGELY NULLIFIED BY THE FEDERAL RULES OF CIVIL
PROCEDURE IN ALL RESPECTS CONCERNING APPEALS.  FN11 

FURTHERMORE, THE 1917 ACT CONTEMPLATED EMERGENCY ACTION, TO THE
EXTENT THAT UPON THE FILING OF THE PETITION IMMEDIATE POSSESSION MIGHT
BE TAKEN AND THE LANDS OCCUPIED "FOR MILITARY PURPOSES" DURING WAR "OR
THE IMMINENCE THEREOF."  THIS PURPOSE, IT SEEMS CLEAR, WOULD BE LARGELY
DEFEATED, IF ENTRY MUST BE DEFERRED UNTIL SPECIFIC CHALLENGES TO
JURISDICTION AND THE SUFFICIENCY OF THE PETITION ARE DETERMINED
SERIATIM, NOT ONLY BY RULING OF THE TRIAL COURT BUT BY SEPARATE APPEALS
FROM EACH RULING WHICH, IF SUSTAINED N12, WOULD END THE LITIGATION, BUT
IF LACKING IN MERIT COULD ONLY PROLONG IT.  WE FIND NEITHER IN THE
LANGUAGE NOR IN THE PURPOSES OF THE 1917 ACT AN INTENT TO AUTHORIZE
DEPARTURE FROM THE GENERAL COURSE OF APPLYING SEC. 128 IN CONDEMNATION
PROCEEDINGS. 

INDEED, WE DO NOT UNDERSTAND PETITIONERS TO URGE THAT THE 1917 ACT
WITHOUT MORE ACCOMPLISHES THE DEPARTURE.  THEY SAY RATHER THAT IT DOES
SO WHEN USED IN CONJUNCTION WITH THE DECLARATION OF TAKING ACT OF
1931.  IT IS THE "JUDGMENT UPON A DECLARATION OF TAKING" AND THE
SUBSEQUENT ORDER DENYING THEIR MOTION TO VACATE THIS "JUDGMENT" AND TO
DISMISS THE PROCEEDINGS WHICH THEY CONTEND ARE "FINAL DECISIONS" WITHIN
SEC. 128 AND THEREFORE APPEALABLE.  IT IS "JUDGMENTS" OF THIS CHARACTER
WHICH THE DECISIONS OF CIRCUIT COURTS OF APPEALS, UPON WHICH
PETITIONERS RELY, HAVE INVOLVED.  ONE OF THEM RELIED EXPRESSLY UPON THE
1931 ACT AS BEING INTENDED "TO SEVER THE TAKING OF TITLE AND POSSESSION
FROM CONTROVERSIES AS TO VALUATION, AND TO PROVIDE A PROCEDURE WHEREBY
THE UNITED STATES MIGHT BE SPEEDILY AND CONCLUSIVELY VESTED WITH TITLE
AND POSSESSION" AND THEREFORE AS HAVING A "FINAL AND IMMEDIATE EFFECT
ON PROPERTY RIGHTS" WHICH "OBVIOUSLY SHOULD BE REVIEWABLE AT ONCE,
WITHOUT THE NECESSITY OF AWAITING THE OUTCOME OF LONG DRAWN OUT
CONTROVERSIES AS TO VALUATION."  PUERTO RICO R. CO. V. UNITED STATES,
131 F.2D 491, 494.  THE REASON STATED MIGHT AFFORD GROUND FOR CONGRESS
TO PROVIDE A SPECIAL APPEAL.  HOWEVER, WE DO NOT THINK THE REASON
ACCORDS WITH THE STATUTE'S PROVISIONS OR THEIR EFFECT.  CONSEQUENTLY IT
GIVES NO GROUND FOR BELIEVING THAT CONGRESS HAS PROVIDED A SEPARATE
APPEAL. 

WE DISPOSE SHORTLY OF THE MOTION, OR THAT PART OF IT, WHICH WAS
DIRECTED AT DISMISSAL OF THE PROCEEDINGS, IN SO FAR AS IT MAY REQUIRE
TREATMENT SEPARATELY FROM THE MOTION TO VACATE THE "JUDGMENT," IF IT
DOES SO AT ALL.  HAD THIS MOTION BEEN GRANTED AND JUDGMENT OF DISMISSAL
BEEN ENTERED, CLEARLY THERE WOULD HAVE BEEN AN END OF THE LITIGATION
AND APPEAL WOULD LIE WITHIN SEC. 128.  UNITED STATES V. CAREY, 143 F.2D
445; UNITED STATES V. MARIN, 136 F.2D 388.  BUT DENIAL OF A MOTION TO
DISMISS, EVEN WHEN THE MOTION IS BASED UPON JURISDICTIONAL GROUNDS, IS
NOT IMMEDIATELY REVIEWABLE.  CF. ROCHE V. EVAPORATED MILK ASSN., 319
U.S. 21.  SEE ALSO DIECKMANN V. UNITED STATES, 88 F.2D 902.  CERTAINLY
THIS IS TRUE WHENEVER THE QUESTION MAY BE SAVED FOR DISPOSITION UPON
REVIEW OF FINAL JUDGMENT DISPOSING OF ALL ISSUES INVOLVED IN THE
LITIGATION OR IN SOME OTHER ADEQUATE MANNER.  AS WILL APPEAR, WE THINK
SUCH A REMEDY IS AVAILABLE IN THIS CASE. 

THE "JUDGMENT" AND THE ORDER DENYING THE MOTION TO VACATE IT STAND NO
BETTER.  THE 1931 ACT, LIKE THAT OF 1917, CONTAINS NO LANGUAGE
PURPORTING TO CHANGE THE GENERAL RULE RELATING TO APPEALS IN
CONDEMNATION PROCEEDINGS.  SECTION 1, WHICH IS THE BASIC SECTION, MAKES
NO EXPRESS REFERENCE TO APPEALS.  FN13  SECTION 2 IMPLIES THE CONTRARY
EFFECT.  IT PROVIDES:  "NO APPEAL IN ANY SUCH CAUSE NOR ANY BOND OR
UNDERTAKING GIVEN THEREIN SHALL OPERATE TO PREVENT OR DELAY THE VESTING
OF TITLE TO SUCH LANDS IN THE UNITED STATES."  WHILE THE SECTION DOES
NOT IN TERMS DENY THE RIGHT OF APPEAL CONTENDED FOR, NEITHER DOES IT
CONFER THAT RIGHT.  THE POSSIBILITY OF DELAYING OR PREVENTING THE
VESTING OF TITLE BY APPEALS WAS EXPLICITLY IN THE MIND OF CONGRESS,
WHEN IT INCLUDED THIS SECTION.  IF IT HAD THOUGHT GRANTING AN EARLIER
APPEAL THAN THE EXISTING PROCEDURE ALLOWED, UPON THE SEVERED ISSUE OF
THE RIGHT TO TAKE THE PROPERTY, WOULD EXPEDITE THE TAKING OR THE
VESTING OF TITLE OR THE PROCEEDINGS IN ANY OTHER MANNER, SLIGHT
ADDITIONAL WORDS WOULD HAVE MADE PROVISION FOR SUCH AN APPEAL.  THE
OMISSION, AND THE CLEAR IMPORT OF THE LANGUAGE USED, ARE AGAINST THE
IMPLICATION THAT SEPARATE APPEALS WERE TO BE ALLOWED. 

THIS SEEMS REINFORCED BY SEC. 4.  IT MAKES THE RIGHT TO TAKE
POSSESSION AND TITLE "IN ADVANCE OF FINAL JUDGMENT" ADDITIONAL TO OTHER
RIGHTS, POWERS OR AUTHORITY CONFERRED BY FEDERAL OR LOCAL LAW, AND
EXPRESSLY STATES THAT THIS RIGHT "SHALL NOT BE CONSTRUED AS ABROGATING,
LIMITING, OR MODIFYING ANY SUCH RIGHT, POWER, OR AUTHORITY."  ONE OF
THE RIGHTS OF THE GOVERNMENT UNDER PREEXISTING FEDERAL LAW WAS THE
RIGHT NOT TO HAVE THE PROCEEDING, OR THE TAKING OF POSSESSION,  FN14
DELAYED BY SEPARATE APPEALS OVER ISSUES OF TITLE OR TAKING.  FN15  ITS
RIGHT WAS RATHER TO HAVE THESE ISSUES DETERMINED WITH OTHERS IN THE
FINAL JUDGMENT DISPOSITIVE OF THE WHOLE CAUSE.  THIS RIGHT, WE THINK,
WAS GUARDED BY SEC. 4 AGAINST BEING CONSTRUED AS HAVING BEEN ABROGATED,
LIMITED OR MODIFIED, BY VIRTUE OF THE ADDITIONAL RIGHT CONFERRED "TO
TAKE POSSESSION AND TITLE IN ADVANCE OF FINAL JUDGMENT."  OTHER
PROVISIONS OF THE STATUTE, AS WILL APPEAR, SUPPORT THE SAME
CONCLUSION. 

MOREOVER, THE STATUTE DOES NOT PURPORT IN TERMS TO AUTHORIZE SUCH A
"JUDGMENT" AS WAS ENTERED IN THIS CAUSE OR TO MAKE ITS ENTRY THE EVENT
UPON WHICH TITLE IS CHANGED, IF SO SUMMARY A PROCEDURE COULD BE VALID. 
THE "JUDGMENT" APPARENTLY WAS ENTERED EX PARTE, PRIOR TO SERVICE OF
PROCESS OR PUBLICATION OF NOTICE.  CF. PENNOYER V. NEFF, 95 U.S. 714. 
BY THE TERMS OF SEC. 1, "UPON THE FILING SAID DECLARATION OF TAKING (IN
THE CONDEMNATION PROCEEDING) AND OF THE DEPOSIT IN THE COURT ...  TITLE
...  SHALL VEST IN THE UNITED STATES  ...  AND SAID LANDS SHALL BE
DEEMED TO BE CONDEMNED AND TAKEN FOR THE USE OF THE UNITED STATES, AND
THE RIGHT TO JUST COMPENSATION FOR THE SAME SHALL VEST IN THE PERSONS
ENTITLED THERETO; AND SAID COMPENSATION SHALL BE ASCERTAINED AND
AWARDED IN SAID PROCEEDING AND ESTABLISHED BY JUDGMENT THEREIN  ..." 
FN16 

THE EXACT EFFECT OF THESE PROVISIONS IS NOT ENTIRELY CLEAR.  BUT WE
FIND NOTHING IN THE STATUTE TO INDICATE THAT CONGRESS INTENDED TO
DEPRIVE THE OWNER OF ALL OPPORTUNITY TO CHALLENGE THE VALIDITY OF THE
TAKING FOR DEPARTURE FROM THE STATUTORY LIMITS.  SUCH A PURPOSE CANNOT
BE IMPLIED FROM THE PROVISION FOR TRANSFER OF TITLE ITSELF AND THE FACT
THAT THE SPECIFIC REFERENCES TO THE FINAL JUDGMENT IN SEC. 1 SPEAK ONLY
CONCERNING COMPENSATION.  THOSE REFERENCES, WE THINK, ARE
COUNTERBALANCED BY OTHER PROVISIONS AND CONSIDERATIONS, IN SO FAR AS
THEY MAY BE THOUGHT TO EXCLUDE MATTERS OF TITLE FROM THE FINAL
ADJUDICATION. 

WE THINK THE PURPOSE WAS TO LEAVE INTACT THE OWNER'S REMEDY EXISTING
BEFORE THE STATUTE WAS ADOPTED.  FOR ONE THING, THE STATUTE IS NOT AN
INDEPENDENT ONE FOR CONDEMNATION.  IT PROVIDES FOR NO NEW CONDEMNATION
PROCEEDING.  IT MERELY AFFORDS STEPS ANCILLARY OR INCIDENTAL TO SUITS
BROUGHT UNDER OTHER STATUTES; AND WAS SO USED IN THIS CASE IN
CONJUNCTION WITH THE SUIT BROUGHT UNDER THE ACT OF 1917.  ITS DECLARED
PURPOSE IS TO EXPEDITE, IN THE CASES TO WHICH IT APPLIES, THE
CONSTRUCTION OF PUBLIC BUILDINGS AND WORKS "BY ENABLING POSSESSION AND
TITLE OF SITES TO BE TAKEN IN ADVANCE OF FINAL JUDGMENT IN PROCEEDINGS
FOR THE ACQUISITION THEREOF UNDER THE POWER OF EMINENT DOMAIN," AS THE
TITLE STATES, AND IT APPLIES TO "ANY PROCEEDING  ...  INSTITUTED  ...
UNDER THE AUTHORITY OF THE UNITED STATES FOR THE ACQUISITION OF ANY
LAND  ...  FOR THE PUBLIC USE  ..."  SEC. 1.  THE PROCEDURE CLEARLY IS
ANCILLARY TO THE MAIN CONDEMNATION PROCEEDING, CF. UNITED STATES V.
17,280 ACRES OF LAND, 47 F.SUPP.  267, 269, IS INTENDED TO DOVETAIL
WITH IT AND BY SEC. 4 IS DECLARED EXPRESSLY TO PROVIDE RIGHTS WHICH ARE
TO BE "IN ADDITION TO" PREEXISTING RIGHTS AND ARE NOT TO "BE CONSTRUED
AS ABROGATING, LIMITING, OR MODIFYING" THEM.  THIS PROVISION, INSERTED
PRIMARILY TO SAFEGUARD THE GOVERNMENT'S INTEREST, IS NOT EXPRESSLY SO
LIMITED; AND WE THINK IT MAY BE APPLIED ALSO TO SAFEGUARD THE OWNER'S
PREEXISTING RIGHTS WHERE DOING THIS WILL NOT BE IN ESSENTIAL CONFLICT
WITH THE ADDITIONAL RIGHTS VALIDLY CONFERRED ON THE GOVERNMENT.  THIS
WOULD BE DONE BY PRESERVING HIS PREEXISTING RIGHT OF APPEAL. 

WHILE THE LANGUAGE AND THE WORDING OF THE ACT ARE NOT WHOLLY FREE
FROM DOUBT, WE SEE NO NECESSARY INCONSISTENCY BETWEEN THE PROVISIONS
FOR TRANSFER OF TITLE UPON FILING OF THE DECLARATION AND MAKING OF THE
DEPOSIT AND AT THE SAME TIME PRESERVING THE OWNER'S PREEXISTING RIGHT
TO QUESTION THE VALIDITY OF THE TAKING AS NOT BEING FOR A PURPOSE
AUTHORIZED BY THE STATUTE UNDER WHICH THE MAIN PROCEEDING IS BROUGHT. 
THAT RESULT MAY BE REACHED IF THE STATUTE IS CONSTRUED TO CONFER UPON
THE GOVERNMENT, UPON OCCURRENCE OF THE EVENTS SPECIFIED, ONLY A
DEFEASIBLE TITLE IN CASES WHERE AN ISSUE CONCERNING THE VALIDITY OF THE
TAKING ARISES.  SO TO CONSTRUE THE ACT WOULD ACCOMPLISH FULLY THE
PURPOSES FOR WHICH IT WAS ADOPTED IN THE LARGE NUMBER OF CASES WHERE NO
SUCH ISSUE IS MADE.  IN OTHERS THIS WOULD GO FAR TOWARD DOING SO, FOR
NOT ALL SUCH ISSUES WILL BE FOLLOWED THROUGH TO FINAL DECISION OR, IF
SO FOLLOWED, WILL TURN OUT ADVERSELY TO THE GOVERNMENT.  THE
ALTERNATIVE CONSTRUCTION, THAT TITLE PASSES IRREVOCABLY, LEAVING THE
OWNER NO OPPORTUNITY TO QUESTION THE TAKING'S VALIDITY OR ONE FOR WHICH
THE ONLY REMEDY WOULD BE TO ACCEPT THE COMPENSATION WHICH WOULD BE JUST
IF THE TAKING WERE VALID, WOULD RAISE SERIOUS QUESTION CONCERNING THE
STATUTE'S VALIDITY.  IN ANY EVENT WE THINK IT WOULD RUN COUNTER TO WHAT
REASONABLE CONSTRUCTION REQUIRES. 

SOME STRESS IS PLACED UPON THE PROVISIONS OF SECS. 3 AND 5 RELATING
TO IRREVOCABLE COMMITMENT OF THE UNITED STATES TO PAY THE AMOUNT
ULTIMATELY TO BE AWARDED,  FN17  TOGETHER WITH THE PROVISION OF SEC. 1
AUTHORIZING AWARD OF MORE THAN THE AMOUNT DEPOSITED AS ESTIMATED
COMPENSATION, AS INDICATING A PURPOSE TO MAKE THE TRANSFER OF TITLE
IRREVOCABLE UPON THE FILING OF THE DECLARATION AND THE MAKING OF THE
DEPOSIT.  FN18  FROM THE FACT THAT THE GOVERNMENT MAY BECOME
IRREVOCABLY COMMITTED TO PAY, IT DOES NOT FOLLOW THAT THE OWNER IS
IRREVOCABLY COMMITTED TO SUBMIT TO THE TAKING, SINCE THE STATUTE'S
TERMS ARE NOT IN PARI MATERIA IN THIS RESPECT.  NEITHER SEC. 3 NOR SEC.
5 PURPORTS TO BIND THE OWNER IRREVOCABLY.  ON THE CONTRARY, SEC. 5
DEALS ONLY WITH AUTHORITY TO EXPEND APPROPRIATED FUNDS FOR DEMOLITION
OF EXISTING STRUCTURES AND CONSTRUCTION OF NEW ONES; AND THE CONCLUDING
PROVISO, REQUIRING THE OPINION OF THE ATTORNEY GENERAL THAT "TITLE HAS
BEEN VESTED IN THE UNITED STATES OR ALL PERSONS HAVING AN INTEREST
THEREIN HAVE BEEN MADE PARTIES TO SUCH PROCEEDING AND WILL BE BOUND BY
THE FINAL JUDGMENT THEREIN," BEFORE THE FUNDS ARE EXPENDED, SEEMS
CLEARLY TO CONTEMPLATE THAT TITLE IS NOT INDEFEASIBLY VESTED IN THE
UNITED STATES MERELY BY FOLLOWING THE ADMINISTRATIVE PROCEDURE.  FINAL
JUDGMENT IN "SUCH PROCEEDING," THAT IS, THE MAIN CONDEMNATION SUIT, IS
NECESSARY FOR THAT PURPOSE.  THE OPERATION OF SECS. 3 AND 5 IS TO CUT
OFF THE GOVERNMENT'S RIGHT TO ABANDON THE PROCEEDINGS.  IT IS NOT TO
COMPEL THE OWNER TO SUBMIT TO UNAUTHORIZED TAKINGS. 

ACCORDINGLY, IN OUR OPINION THE RIGHT OF THE OWNER TO CHALLENGE THE
VALIDITY OF THE TAKING, FOR NONCONFORMITY WITH THE PRESCRIBED STATUTORY
PURPOSES, WAS NOT DESTROYED BY THE 1931 ACT.  NOR WAS THE RIGHT TO DO
THIS UPON APPEAL, EXISTING BEFORE THAT ACT WAS ADOPTED, AFFECTED.  NO
SUCH "SEVERANCE" WAS MADE AS THE COURT DECIDING THE PUERTO RICO CASE
THOUGHT WAS CREATED.  NO NEW RIGHT OF SEPARATE APPEAL WAS GIVEN.  THE
PREEXISTING RIGHT OF APPEAL, INCLUDING APPEAL ON GROUNDS RELATING TO
VALIDITY OF THE TAKING, REMAINED IN FORCE TO BE EXERCISED WHEN AND ONLY
WHEN FINAL JUDGMENT, DISPOSING OF THE CAUSE IN ITS ENTIRETY, HAS BEEN
RENDERED.  THE STATUTE MAKES NO OTHER EXPLICIT PROVISION.  NOR IS ONE
SO CLEARLY IMPLIED THAT WE CAN MAKE IT.  THE WEIGHTIER IMPLICATIONS ARE
THE OTHER WAY. 

WE HAVE NOT DISCUSSED OTHER ISSUES PRESENTED OR SUGGESTED IN THE
BRIEFS OR ARGUMENT, SINCE THAT HAS NOT BEEN NECESSARY TO THE
DISPOSITION OF THIS CAUSE.  THESE INCLUDE THE QUESTION WHETHER, WHEN
POSSESSION HAS BEEN TAKEN AND DAMAGE HAS BEEN DONE TO THE PREMISES IN
THE COURSE OF PROCEEDINGS NOT AUTHORIZED, THE REMEDY BY APPEAL IS
ADEQUATE.  THAT ISSUE HAS NOT BEEN MADE IN THIS CASE, SINCE THE GROUNDS
URGED REST UPON THE PROVISIONS OF THE 1931 ACT RELATING TO TITLE AND
THEIR EFFECT, THROUGH THE PROCEEDINGS HAD, UPON THE PETITIONERS RIGHT. 
THEY DO NOT RELATE SIMPLY TO THE TAKING OF POSSESSION, THE RIGHT TO
TAKE IT OR DAMAGES RESULTING FROM EXERCISE OF THAT RIGHT, APART FROM
THE QUESTION OF TITLE.  POSSESSION IN THIS CASE HAD BEEN TAKEN,
PURSUANT TO THE TERMS OF THE 1917 ACT, PRIOR TO THE TIME OF THE
PURPORTED TRANSFER OF TITLE.  IT WILL BE TIME ENOUGH TO CONSIDER THE
QUESTION CONCERNING ADEQUACY OF THE APPEAL OR POSSIBLE EXISTENCE OF
OTHER REMEDY AFFECTING SUCH A CASE WHEN IT ARISES. 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF AUGUST 18, 1890, 26 STAT. 316, AS AMENDED BY THE ACTS OF
JULY 2, 1917, 40 STAT. 241, AND APRIL 11, 1918, 40 STAT. 518, 50 U.S.C.
SEC. 171.  THE ACT PROVIDES: 

"THAT HEREAFTER THE SECRETARY OF WAR MAY CAUSE PROCEEDINGS TO BE
INSTITUTED IN THE NAME OF THE UNITED STATES, IN ANY COURT HAVING
JURISDICTION OF SUCH PROCEEDINGS FOR THE ACQUIREMENT BY CONDEMNATION OF
ANY LAND, TEMPORARY USE THEREOF OR OTHER INTEREST THEREIN, OR RIGHT
PERTAINING THERETO, NEEDED FOR THE SITE, LOCATION, CONSTRUCTION, OR
PROSECUTION OF WORKS FOR FORTIFICATIONS, COAST DEFENSES, MILITARY
TRAINING CAMPS, AND FOR THE CONSTRUCTION AND OPERATION OF PLANTS FOR
THE PRODUCTION OF NITRATE AND OTHER COMPOUNDS AND THE MANUFACTURE OF
EXPLOSIVES AND OTHER MUNITIONS OF WAR AND FOR THE DEVELOPMENT AND
TRANSMISSION OF POWER FOR THE OPERATIONS OF SUCH PLANTS; SUCH
PROCEEDINGS TO BE PROSECUTED IN ACCORDANCE WITH THE LAWS RELATING TO
SUITS FOR THE CONDEMNATION OF PROPERTY OF THE STATES WHEREIN THE
PROCEEDINGS MAY BE INSTITUTED  ...  AND PROVIDED FURTHER, THAT WHEN
SUCH PROPERTY IS ACQUIRED IN TIME OF WAR, OR THE IMMINENCE THEREOF,
UPON THE FILING OF THE PETITION FOR THE CONDEMNATION OF ANY LAND,
TEMPORARY USE THEREOF OR OTHER INTEREST THEREIN OR RIGHT PERTAINING
THERETO TO BE ACQUIRED FOR ANY OF THE PURPOSES AFORESAID, IMMEDIATE
POSSESSION THEREOF MAY BE TAKEN TO THE EXTENT OF THE INTEREST TO BE
ACQUIRED AND THE LANDS MAY BE OCCUPIED AND USED FOR MILITARY PURPOSES
..." 

FN2  SECTION 128 IS IN PART AS FOLLOWS: 

"THE CIRCUIT COURTS OF APPEAL SHALL HAVE APPELLATE JURISDICTION TO
REVIEW BY APPEAL FINAL DECISIONS - 

"FIRST.  IN THE DISTRICT COURTS, IN ALL CASES SAVE WHERE A DIRECT
REVIEW OF THE DECISION MAY BE HAD IN THE SUPREME COURT UNDER SECTION
345 OF THIS TITLE." 

FN3  46 STAT. 1421, 40 U.S.C. SECS. 258A-258E.  MATERIAL PORTIONS OF
THE STATUTE ARE SET FORTH IN THE TEXT OF THIS OPINION AND THE NOTES. 

FN4  PETITIONERS ATTACKED THE ORIGINAL PETITION FOR FAILURE TO SET
FORTH (1) THE PURPOSE OF THE ACQUISITION OR THAT IT WAS FOR ANY PURPOSE
AUTHORIZED BY THE ACT; (2) THAT THE SECRETARY OF WAR HAD FOUND THAT THE
LAND WAS NEEDED OR (3) HAD REQUESTED THE ATTORNEY GENERAL TO INSTITUTE
THE PROCEEDING TO ACQUIRE IT FOR SUCH A PURPOSE.  CONSIDERING THESE
OBJECTIONS JURISDICTIONAL, PETITIONERS REGARD "ALL FURTHER PROCEEDINGS
BASED UPON THE SAID PETITION" AS "INEFFECTIVE," INCLUDING THE FILING OF
THE FIRST DECLARATION OF TAKING AND THE "JUDGMENT" ENTERED PURSUANT TO
IT. 

THE AMENDMENT ADDED A NEW PARAGRAPH TO THE PETITION STATING THE LANDS
WERE BEING TAKEN FOR PURPOSES DESCRIBED IN THE LANGUAGE OF THE STATUTE
AND INCORPORATED IN THE PETITION THE LETTER OF THE SECRETARY OF WAR
REQUESTING THE ATTORNEY GENERAL TO INSTITUTE THE PROCEEDINGS TO ACQUIRE
THE LAND "FOR USE IN THE ESTABLISHMENT OF THE GRANITE CITY ENGINEER
BRANCH DEPOT."  THIS IS THE SPECIFIC PURPOSE WHICH PETITIONERS SAY DOES
NOT COME WITHIN ANY SET FORTH IN THE STATUTE, FOR WHICH SEE NOTE 1. 

FN5  THE AMENDED MOTION URGED THAT THE AMENDMENT OF THE PETITION, BY
INCORPORATING THE SECRETARY'S STATEMENT OF INTENDED USE FOR AN ENGINEER
DEPOT, CAUSED THE PETITION TO SHOW ON ITS FACE THAT THE USE WAS NOT
WITHIN THOSE AUTHORIZED BY THE ACT.  PETITIONERS ASSERT THE AMENDMENT
"CAME TOO LATE TO VALIDATE" THE "JUDGMENT." 

FN6  DADE COUNTY V. UNITED STATES, 142 F.2D 230(C.C.A. 5), ACCORDS
WITH THE DECISION IN THIS CASE.  CONTRARY DECISIONS WERE RENDERED IN
CITY OF OAKLAND V. UNITED STATES, 124 F.2D 959(C.C.A. 9), CERT. DENIED,
316 U.S. 679; UNITED STATES V. 243.22 ACRES OF LAND, 129 F.2D
678(C.C.A. 2), CERT. DENIED, 317 U.S. 698; PUERTO RICO R. CO. V. UNITED
STATES, 131 F.2D 491(C.C.A. 2). 

UNDER THE COMPARABLE PROVISION OF THE 1929 ACT APPLICABLE IN THE
DISTRICT OF COLUMBIA, WHERE SPECIAL APPEAL MAY BE ALLOWED UPON
INTERLOCUTORY ORDERS, D.C. CODE (1940) SEC. 17-101, COMPARE LEE V.
UNITED STATES, 58 F.2D 879, WITH KEYES V. UNITED STATES, 119 F.2D 444. 

FN7  SEE NOTES 1, 4 AND 5. 

FN8  LUXTON V. NORTH RIVER BRIDGE CO., 147 U.S. 337, 341; SOUTHERN R.
CO. V. POSTAL TELEGRAPH CO., 179 U.S. 641, 643; GRAYS HARBOR CO. V.
COATS-FORDNEY CO., 243 U.S. 251, 256; WASHINGTON EX REL. MCPHERSON
BROS. CO. V. SUPERIOR COURT, 274 U.S. 726; ORNSTEIN V. CHESAPEAKE &
OHIO R. CO., 284 U.S. 572; CF. COLLINS V. MILLER, 252 U.S. 364, 370;
UNITED STATES V. FLORIAN, 312 U.S. 656. 

FN9  NO CASE HAS BEEN FOUND IN WHICH APPEAL WAS TAKEN, OR ATTEMPTED
TO BE TAKEN, UNDER THE 1890 AND 1917 ACTS, FROM AN ORDER OTHER THAN THE
FINAL JUDGMENT DISPOSING OF ALL ISSUES RAISED IN THE PROCEEDING,
INCLUDING COMPENSATION.  THE UNIFORM PRACTICE UNDER THOSE ACTS APPEARS
TO HAVE BEEN THEREFORE TO CONFINE APPEALS TO SUCH ORDERS.  ONLY THREE
CASES APPEAR TO HAVE SOUGHT TO RAISE, IN APPEALS FROM FINAL JUDGMENTS,
THE QUESTION OF THE RIGHT TO CONDEMN.  SEE FORBES V. UNITED STATES, 268
F. 273; CHAPPELL V. UNITED STATES, 81 F. 764, 160 U.S. 499; HENRY V.
UNITED STATES, 46 F.2D 640.  NUMEROUS OTHER CASES INVOLVED APPEALS ON
QUESTIONS AFFECTING COMPENSATION WITHOUT RAISING QUESTION CONCERNING
TITLE OR AUTHORITY TO CONDEMN. 

FN10  CF. NOTE 6 AND TEXT BEGINNING WITH THE PARAGRAPH FOLLOWING NOTE
12. 

FN11  "IN PROCEEDINGS FOR CONDEMNATION OF PROPERTY UNDER THE POWER OF
EMINENT DOMAIN, THESE RULES GOVERN APPEALS BUT ARE NOT OTHERWISE
APPLICABLE."  RULE 81(A)(7). 

FN12  SEE UNITED STATES V. CAREY, 143 F.2D 445; UNITED STATES V.
MARIN, 136 F.2D 388. 

FN13  BECAUSE OF ITS IMPORTANCE, THE SECTION IS SET FORTH HERE IN
FULL, EXCEPT FOR THE CONCLUDING PARAGRAPH WHICH IS QUOTED IN NOTE 14: 

"AN ACT TO EXPEDITE THE CONSTRUCTION OF PUBLIC BUILDINGS AND WORKS
OUTSIDE OF THE DISTRICT OF COLUMBIA BY ENABLING POSSESSION AND TITLE OF
SITES TO BE TAKEN IN ADVANCE OF FINAL JUDGMENT IN PROCEEDINGS FOR THE
ACQUISITION THEREOF UNDER THE POWER OF EMINENT DOMAIN. 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT IN ANY PROCEEDING
IN ANY COURT OF THE UNITED STATES OUTSIDE OF THE DISTRICT OF COLUMBIA
WHICH HAS BEEN OR MAY BE INSTITUTED BY AND IN THE NAME OF AND UNDER THE
AUTHORITY OF THE UNITED STATES FOR THE ACQUISITION OF ANY LAND OR
EASEMENT OR RIGHT OF WAY IN LAND FOR THE PUBLIC USE, THE PETITIONER MAY
FILE IN THE CAUSE, WITH THE PETITION OR AT ANY TIME BEFORE JUDGMENT, A
DECLARATION OF TAKING SIGNED BY THE AUTHORITY EMPOWERED BY LAW TO
ACQUIRE THE LANDS DESCRIBED IN THE PETITION, DECLARING THAT SAID LANDS
ARE THEREBY TAKEN FOR THE USE OF THE UNITED STATES.  SAID DECLARATION
OF TAKING SHALL CONTAIN OR HAVE ANNEXED THERETO - 

"(1)  A STATEMENT OF THE AUTHORITY UNDER WHICH AND THE PUBLIC USE FOR
WHICH SAID LANDS ARE TAKEN. 

"(2)  A DESCRIPTION OF THE LANDS TAKEN SUFFICIENT FOR THE
IDENTIFICATION THEREOF. 

"(3)  A STATEMENT OF THE ESTATE OR INTEREST IN SAID LANDS TAKEN FOR
SAID PUBLIC USE. 

"(4)  A PLAN SHOWING THE LANDS TAKEN. 

"(5)  A STATEMENT OF THE SUM OF MONEY ESTIMATED BY SAID ACQUIRING
AUTHORITY TO BE JUST COMPENSATION FOR THE LAND TAKEN. 

"UPON THE FILING SAID DECLARATION OF TAKING AND OF THE DEPOSIT IN THE
COURT, TO THE USE OF THE PERSONS ENTITLED THERETO, OF THE AMOUNT OF THE
ESTIMATED COMPENSATION STATED IN SAID DECLARATION, TITLE TO THE SAID
LANDS IN FEE SIMPLE ABSOLUTE, OR SUCH LESS ESTATE OR INTEREST THEREIN
AS IS SPECIFIED IN SAID DECLARATION, SHALL VEST IN THE UNITED STATES OF
AMERICA, AND SAID LANDS SHALL BE DEEMED TO BE CONDEMNED AND TAKEN FOR
THE USE OF THE UNITED STATES, AND THE RIGHT TO JUST COMPENSATION FOR
THE SAME SHALL VEST IN THE PERSONS ENTITLED THERETO; AND SAID
COMPENSATION SHALL BE ASCERTAINED AND AWARDED IN SAID PROCEEDING AND
ESTABLISHED BY JUDGMENT THEREIN, AND THE SAID JUDGMENT SHALL INCLUDE,
AS PART OF THE JUST COMPENSATION AWARDED, INTEREST AT THE RATE OF 6 PER
CENTUM PER ANNUM ON THE AMOUNT FINALLY AWARDED AS THE VALUE OF THE
PROPERTY AS OF THE DATE OF TAKING, FROM SAID DATE TO THE DATE OF
PAYMENT; BUT INTEREST SHALL NOT BE ALLOWED ON SO MUCH THEREOF AS SHALL
HAVE BEEN PAID INTO THE COURT.  NO SUM SO PAID INTO THE COURT SHALL BE
CHARGED WITH COMMISSIONS OR POUNDAGE.    "UPON THE APPLICATION OF THE
PARTIES IN INTEREST, THE COURT MAY ORDER THAT THE MONEY DEPOSITED IN
THE COURT, OR ANY PART THEREOF, BE PAID FORTHWITH FOR OR ON ACCOUNT OF
THE JUST COMPENSATION TO BE AWARDED IN SAID PROCEEDING.  IF THE
COMPENSATION FINALLY AWARDED IN RESPECT OF SAID LANDS, OR ANY PARCEL
THEREOF, SHALL EXCEED THE AMOUNT OF THE MONEY SO RECEIVED BY ANY PERSON
ENTITLED, THE COURT SHALL ENTER JUDGMENT AGAINST THE UNITED STATES FOR
THE AMOUNT OF THE DEFICIENCY." 

FN14  THIS WAS AUTHORIZED BY THE ACT OF 1917, CF. NOTE 1 ABOVE, AS
WELL AS BY THE ACT OF 1931 IN THE CONCLUDING PARAGRAPH OF SEC. 1, WHICH
IS AS FOLLOWS: 

"UPON THE FILING OF A DECLARATION OF TAKING, THE COURT SHALL HAVE
POWER TO FIX THE TIME WITHIN WHICH AND THE TERMS UPON WHICH THE PARTIES
IN POSSESSION SHALL BE REQUIRED TO SURRENDER POSSESSION TO THE
PETITIONER.  THE COURT SHALL HAVE POWER TO MAKE SUCH ORDERS IN RESPECT
OF ENCUMBRANCES, LIENS, RENTS, TAXES, ASSESSMENTS, INSURANCE, AND OTHER
CHARGES, IF ANY, AS SHALL BE JUST AND EQUITABLE." 

FN15  SEE NOTE 9. 

FN16  SEE NOTE 13 FOR THE COMPLETE TEXT. 

FN17  SECTION 3 IS SET FORTH IN NOTE 18.  SECTION 5 IS AS FOLLOWS: 

"IN ANY CASE IN WHICH THE UNITED STATES HAS TAKEN OR MAY TAKE
POSSESSION OF ANY REAL PROPERTY DURING THE COURSE OF CONDEMNATION
PROCEEDINGS AND IN ADVANCE OF FINAL JUDGMENT THEREIN AND THE UNITED
STATES HAS BECOME IRREVOCABLY COMMITTED TO PAY THE AMOUNT ULTIMATELY TO
BE AWARDED AS COMPENSATION, IT SHALL BE LAWFUL TO EXPEND MONEYS DULY
APPROPRIATED FOR THAT PURPOSE IN DEMOLISHING EXISTING STRUCTURES ON
SAID LAND AND IN ERECTING PUBLIC BUILDINGS OR PUBLIC WORKS THEREON,
NOTWITHSTANDING THE PROVISIONS OF SECTION 355 OF THE REVISED STATUTES
OF THE UNITED STATES:  PROVIDED, THAT IN THE OPINION OF THE ATTORNEY
GENERAL, THE TITLE HAS BEEN VESTED IN THE UNITED STATES OR ALL PERSONS
HAVING AN INTEREST THEREIN HAVE BEEN MADE PARTIES TO SUCH PROCEEDING
AND WILL BE BOUND BY THE FINAL JUDGMENT THEREIN." 

FN18  INCLUDING OR FOLLOWING THE FINDING REQUIRED BY SEC. 3, WHICH
PROVIDES: 

"ACTION UNDER THIS STATUTE IRREVOCABLY COMMITTING THE UNITED STATES
TO THE PAYMENT OF THE ULTIMATE AWARD SHALL NOT BE TAKEN UNLESS THE
CHIEF OF THE EXECUTIVE DEPARTMENT OR AGENCY OR BUREAU OF THE GOVERNMENT
EMPOWERED TO ACQUIRE THE LAND SHALL BE OF THE OPINION THAT THE ULTIMATE
AWARD PROBABLY WILL BE WITHIN ANY LIMITS PRESCRIBED BY CONGRESS ON THE
PRICE TO BE PAID." 

MR. JUSTICE ROBERTS AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT. 
..END :








GEMSCO, INC. V. WALLING, 324 U.S. 244 


ARGUED DECEMBER 5, 1944.  - DECIDED FEBRUARY 26, 1945.  - 144 F.2D 608,
AFFIRMED. 


UNDER SEC. 8(F) OF THE FAIR LABOR STANDARDS ACT, THE ADMINISTRATOR HAS
AUTHORITY, AS A NECESSARY MEANS OF MAKING EFFECTIVE A MINIMUM WAGE
ORDER FOR THE EMBROIDERIES INDUSTRY, TO PROHIBIT INDUSTRIAL HOMEWORK. 
PP. 254, 269. 

GEMSCO, INC. ET AL. V. WALLING, ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION, U.S. DEPARTMENT OF LABOR. 

NO. 368.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT* . 

*TOGETHER WITH NO. 369, MARETZO ET AL. V. WALLING, ADMINISTRATOR OF
THE WAGE AND HOUR DIVISION, U.S. DEPARTMENT OF LABOR, AND NO. 370,
GUISEPPI ET AL. V. WALLING, ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION, U.S. DEPARTMENT OF LABOR, ALSO ON CERTIORARI TO THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 695, TO REVIEW A JUDGMENT AFFIRMING A WAGE ORDER
PROMULGATED BY THE ADMINISTRATOR UNDER THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE ISSUE TO BE DECIDED IN THESE CASES IS NARROW.  IT IS WHETHER
RESPONDENT, AS ADMINISTRATOR, HAS AUTHORITY UNDER SEC. 8(F) OF THE FAIR
LABOR STANDARDS ACT, 52 STAT. 1060, TO PROHIBIT INDUSTRIAL HOMEWORK AS
A NECESSARY MEANS OF MAKING EFFECTIVE A MINIMUM WAGE ORDER FOR THE
EMBROIDERIES INDUSTRY.  THE QUESTION ARISES IN PROCEEDINGS BROUGHT TO
REVIEW THE ORDER PURSUANT TO SEC. 10.  THE CASES WERE CONSOLIDATED FOR
HEARING IN THE CIRCUIT COURT OF APPEALS, WHICH SUSTAINED THE
ADMINISTRATOR'S ACTION, ONE JUDGE DISSENTING.  GUISEPPI V. WALLING, 144
F.2D 608.  BECAUSE OF THE PUBLIC IMPORTANCE OF THE QUESTION AND ITS
IMPORTANCE FOR PURPOSES OF ADMINISTERING THE STATUTE, CERTIORARI WAS
GRANTED, 323 U.S. 695, LIMITED TO THE STATED ISSUE.  FN1 

ONE OF THE ACT'S PRIMARY OBJECTIVES WAS "A UNIVERSAL MINIMUM WAGE OF
40 CENTS AN HOUR IN EACH INDUSTRY ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE" AND TO REACH THIS LEVEL AS RAPIDLY AS
WAS "ECONOMICALLY FEASIBLE WITHOUT SUBSTANTIALLY CURTAILING
EMPLOYMENT."  SEC. 8(A).  ACCORDINGLY, SEC. 6 ESTABLISHED BASIC MINIMUM
STATUTORY WAGES, TO BE STEPPED UP FROM 25 CENTS AN HOUR TO 40 CENTS
GENERALLY  FN2  DURING THE SEVEN YEARS FROM THE SECTION'S EFFECTIVE
DATE, OCTOBER 23, 1938.  LIMITED FLEXIBILITY WAS PROVIDED IN ACCORDANCE
WITH THE DECLARED PURPOSE TO REACH THE 40-CENT LEVEL EARLIER IF
"ECONOMICALLY FEASIBLE."  CF. 83 CONG. REC. 9256.  SECTION 8 EMPOWERS
THE ADMINISTRATOR TO CONVENE INDUSTRY COMMITTEES WHICH, AFTER
INVESTIGATION, REPORT TO HIM THEIR RECOMMENDATIONS CONCERNING MINIMUM
WAGES  FN3  AND REASONABLE CLASSIFICATIONS.  SEC. 8(A), (B), (C), (D). 
THE ADMINISTRATOR IS THEN REQUIRED BY ORDER TO APPROVE AND CARRY INTO
EFFECT THE COMMITTEE'S RECOMMENDATIONS, AFTER NOTICE TO INTERESTED
PERSONS AND OPPORTUNITY TO BE HEARD, IF HE FINDS THEY "ARE MADE IN
ACCORDANCE WITH LAW, ARE SUPPORTED BY THE EVIDENCE  ...  AND ...  WILL
CARRY OUT THE PURPOSES" OF THE SECTION; OTHERWISE HE MUST DISAPPROVE
THEM.  SEC. 8(D). 

THE ACT'S SCHEME IS THEREFORE A COMBINATION OF "STATUTORY" MINIMUM
WAGES FIXED BY SEC. 6 AND WHAT MAY BE TERMED "COMMITTEE" WAGES,  FN4
FIXED BY ORDER MADE PURSUANT TO SEC. 8.  THE FORMER PREVAIL IN THE
ABSENCE OF SPECIAL ADMINISTRATIVE ACTION; THE LATTER, WHEN SUCH ACTION
HAS BEEN TAKEN TO PRESCRIBE FOR A SPECIFIC INDUSTRY A HIGHER LEVEL THAN
THE GENERALLY PREVAILING STATUTORY FLOOR.  THE ORDER IN THIS CASE,
ENTERED ON APPROVAL OF THE COMMITTEE'S RECOMMENDATIONS, AFTER NOTICE
AND EXTENSIVE HEARINGS, FN5  PRESCRIBED A MINIMUM WAGE OF 40 CENTS AN
HOUR, AN INCREASE OF 2 1/2 CENTS OVER THE PREVIOUSLY PREVAILING
"COMMITTEE" RATE.  FN6  PETITIONERS HAVE NOT CONTESTED THIS, THE
PRIMARY, TERM OF THE ORDER. 

IN THIS STATUTORY SETTING STANDS SEC. 8(F), THE CRUCIAL PROVISION
WHICH IN MATERIAL PART IS AS FOLLOWS: 

"(F)  ORDERS ISSUED UNDER THIS SECTION SHALL DEFINE THE INDUSTRIES AND
CLASSIFICATIONS THEREIN TO WHICH THEY ARE TO APPLY, AND SHALL CONTAIN
SUCH TERMS AND CONDITIONS AS THE ADMINISTRATOR FINDS NECESSARY TO CARRY
OUT THE PURPOSES OF SUCH ORDERS, TO PREVENT THE CIRCUMVENTION OR
EVASION THEREOF, AND TO SAFEGUARD THE MINIMUM WAGE RATES ESTABLISHED
THEREIN.  NO SUCH ORDER SHALL TAKE EFFECT UNTIL AFTER DUE NOTICE IS
GIVEN  ..." 

                       I 

THE NARROW ISSUE TURNS UPON THE SCOPE PROPERLY TO BE GIVEN THE
EMPHASIZED PORTIONS OF THE SECTION.  RESPONDENT SAYS THAT THIS
AUTHORIZES HIM TO TAKE WHATEVER ACTION HE FINDS NECESSARY TO PREVENT
CIRCUMVENTION OR EVASION OF THE ORDER SO THAT THE WAGE RATE IT
ESTABLISHES MAY BE SAFEGUARDED; AND THAT IN THIS CASE HIS FINDINGS,
AMPLY SUSTAINED BY THE EVIDENCE, SHOW PROHIBITION OF INDUSTRIAL
HOMEWORK IS NECESSARY TO ACCOMPLISH THIS END.  AS APPLIED IN THIS CASE,
HE HAS CONSTRUED "NECESSARY" NOT AS MEANING "HELPFUL," "CONSISTENT," OR
"CONVENIENT,"  FN7  BUT AS CONNOTING THAT THE PROHIBITION IS ABSOLUTELY
ESSENTIAL TO ACHIEVE THOSE PURPOSES.  HE SAYS THE WAGE RATE CANNOT BE
MAINTAINED UNLESS INDUSTRIAL HOMEWORK IS PROHIBITED, WITH THE
COMPARATIVELY MINOR EXCEPTIONS THE ORDER ALLOWS N8.  HIS FINDINGS AND
INDEED HIS EXPRESS CONCLUSIONS THEREFORE NECESSARILY DETERMINE THAT
REGULATION, BY MEASURES SHORT OF PROHIBITION, CANNOT ACCOMPLISH THE
RELEVANT PURPOSES OF THE ORDER AND OF THE STATUTE.  FN9 

PETITIONERS DO NOT DISPUTE THE ADMINISTRATOR'S FINDINGS OF FACT OR
THAT THE EVIDENCE FULLY SUSTAINS THEM.  NOR INDEED DO THEY QUESTION HIS
CONCLUSIONS IN ANY RESPECT EXCEPT THAT HE HAS NO LEGAL AUTHORITY TO
MAKE THE PROHIBITION N10.  THE PETITION FOR CERTIORARI CONCEDED, AS
DOES ALSO THE BRIEF, THAT THE PROHIBITION WAS INCLUDED SOLELY BECAUSE
RESPONDENT FOUND "HE COULD NOT (OTHERWISE) ENFORCE THE MINIMUM WAGE
RATE AS TO THE HOME WORKERS EMPLOYED IN THE INDUSTRY."  THE BRIEF
STATES FURTHER THAT PETITIONERS, "DURING THE ENTIRE COURSE OF THE
PROCEEDINGS,  ... CHALLENGED ONLY THE STATUTORY AUTHORITY" OF THE
RESPONDENT TO INCLUDE THE PROHIBITION. 

IN THIS SHARPLY CHISELED STATE OF THE ISSUE, THE ACCURACY OF THE
ADMINISTRATOR'S FINDINGS AND CONCLUSIONS AND THE SUFFICIENCY OF THE
EVIDENCE TO SUSTAIN THEM MUST BE TAKEN NOT ONLY AS TRUE BUT AS
CONCEDED, APART FROM THE SINGLE QUESTION OF AUTHORITY TO INCLUDE THE
PROHIBITION NOTWITHSTANDING IT IS SO BUTTRESSED IN FACT.  FN11  THE
POSTURE OF THE CASE THEREFORE COMPELS ACCEPTANCE OF THE ADMINISTRATOR'S
POSITION THAT, WITHOUT THE PROHIBITION, THE WAGE RATE CANNOT BE
MAINTAINED, AND THAT CIRCUMVENTION AND EVASION CANNOT BE PREVENTED. 

FURTHERMORE, UPON THE FINDINGS THAT IS TRUE NOT ONLY WITH REFERENCE
TO THE EMPLOYEES WHO ARE THEMSELVES HOMEWORKERS.  IT IS TRUE ALSO AS TO
ALL OTHER EMPLOYEES IN THE INDUSTRY N12.  ACCORDING TO THE BEST
AVAILABLE ESTIMATES, THE NUMBER OF HOMEWORKERS AT PEAK EMPLOYMENT
(APRIL 1, 1939, TO JULY 15, 1942) RANGED FROM 8,500 TO 12,000, WHEREAS
THE NUMBER OF FACTORY WORKERS AS OF JUNE, 1942, WAS 18,500.  THE NUMBER
OF WAGE EARNERS PER FACTORY IN 1939 EMPLOYED IN SOME 1,431
ESTABLISHMENTS AVERAGED BETWEEN 12 AND 13 WORKERS.  FN13  NOT ONLY
THEREFORE IS IT IMPOSSIBLE FOR THE ADMINISTRATOR, WITHOUT THE
PROHIBITION, TO FOLLOW THE STATUTE'S MANDATE (SEC. 8(D)) TO "CARRY INTO
EFFECT" THE RECOMMENDATIONS OF THE COMMITTEE AS TO 8,500 TO 12,000
HOMEWORKERS, WHO GENERALLY ARE PART-TIME PIECE-WORKERS N14.  HE NEITHER
CAN DO SO AS TO FACTORY WORKERS, WHO GENERALLY ARE FULL-TIME WORKERS. 

HENCE, IF THE PROHIBITION CANNOT BE MADE, THE FLOOR FOR THE ENTIRE
INDUSTRY FALLS AND THE RIGHT OF THE HOMEWORKERS AND THE EMPLOYERS TO BE
FREE FROM THE PROHIBITION DESTROYS THE RIGHT OF THE MUCH LARGER NUMBER
OF FACTORY WORKERS TO RECEIVE THE MINIMUM WAGE.  THIS IS TRUE NOT
MERELY AS A MATTER OF INFERENCE FROM EVIDENCE HAVING ONLY PROSPECTIVE
AND PREDICTIVE VALUE.  IT IS PROVED CONCLUSIVELY BY THE ADMINISTRATOR'S
EXPERIENCE IN ATTEMPTING BY REGULATORY METHODS TO SECURE COMPLIANCE
WITH THE PREVIOUSLY PREVAILING  FN15  LOWER "COMMITTEE" RATE.  FN16
HIS EXPERIENCE IS BORNE OUT BY THAT OF STATE AND FEDERAL AUTHORITIES
PRIOR TO THE FAIR LABOR STANDARDS ACT.  FN17 ATTEMPTS TO MAINTAIN
MINIMUM WAGES BY REGULATING HOMEWORK HAVE FAILED GENERALLY OF THEIR
PURPOSE.  THIS FAILURE, AFTER FAIR TRIAL, IS RESPONSIBLE FOR THE
ADMINISTRATOR'S RESORT TO PROHIBITION IN THE PRESENT ORDER. 

THE CASE THEREFORE COMES DOWN SQUARELY TO WHETHER OR NOT MINIMUM
WAGES MAY BE EFFECTIVELY PRESCRIBED AND REQUIRED IN THIS INDUSTRY.  IF
HOMEWORK CAN BE PROHIBITED, THIS IS POSSIBLE.  IF IT CANNOT, THE FLOOR
PROVIDED BY THE ORDER CANNOT BE MAINTAINED AND, FURTHER, WHAT IS MORE
IMPORTANT, IT INEVITABLY FOLLOWS THAT NO FLOOR, WHETHER OF "STATUTORY"
OR OF "COMMITTEE" WAGES, CAN BE MAINTAINED.  FN18 

IN THIS LIGHT PETITIONERS' POSITION IS, IN EFFECT, THAT THE STATUTE
CANNOT BE APPLIED TO THIS INDUSTRY.  THEIR ARGUMENT IS NOT PUT IN THESE
TERMS.  IT COMES TO THAT.  SO TO STATE IT IS TO ANSWER IT.  THE
INDUSTRY IS COVERED BY THE ACT.  THIS IS NOT DISPUTED.  THE INTENT OF
CONGRESS WAS TO PROVIDE THE AUTHORIZED MINIMUM WAGE FOR EACH EMPLOYEE
SO COVERED.  NEITHER IS THIS QUESTIONED.  YET IT IS SAID IN SUBSTANCE
THAT CONGRESS AT THE SAME TIME INTENDED TO DEPRIVE THE ADMINISTRATOR OF
THE ONLY MEANS AVAILABLE TO MAKE ITS MANDATE EFFECTIVE.  THE
CONSTRUCTION SOUGHT WOULD MAKE THE STATUTE A DEAD LETTER FOR THIS
INDUSTRY. 

THE STATUTE ITSELF THUS GIVES THE ANSWER.  IT DOES SO IN TWO WAYS, BY
NECESSITY TO AVOID SELF-NULLIFICATION AND BY ITS EXPLICIT TERMS.  THE
NECESSITY SHOULD BE ENOUGH.  BUT THE ACT'S TERMS REINFORCE THE
NECESSITY'S TEACHING.  SECTION 8(D) REQUIRES THE ADMINISTRATOR TO
"CARRY INTO EFFECT" THE COMMITTEE'S APPROVED RECOMMENDATIONS.  SECTION
8(F) COMMANDS HIM TO INCLUDE IN THE ORDER "SUCH TERMS AND CONDITIONS"
AS HE "FINDS NECESSARY TO CARRY OUT" ITS PURPOSES.  THESE DUTIES ARE
BACKED UP BY OTHER PROVISIONS.  FN19  WHEN COMMAND IS SO EXPLICIT AND,
MOREOVER, IS REINFORCED BY NECESSITY IN ORDER TO MAKE IT OPERATIVE,
NOTHING SHORT OF EXPRESS LIMITATION OR ABUSE OF DISCRETION IN FINDING
THAT THE NECESSITY EXISTS SHOULD UNDERMINE THE ACTION TAKEN TO EXECUTE
IT. WHEN NEITHER SUCH LIMITATION NOR SUCH ABUSE EXISTS, BUT THE
NECESSITY IS CONCEDED TO BE WELL FOUNDED IN FACT, THERE WOULD SEEM TO
BE AN END OF THE MATTER. 

   II 

PETITIONERS' OBJECTIONS ARE NOT PROCEDURAL.  THEY HAVE NOT CONTENDED
THAT THE PROVISION OF THE ORDER FORBIDDING HOMEWORK IS A DEFINITION OR
CLASSIFICATION OF THE INDUSTRY OR, EITHER FOR THAT REASON OR ANY OTHER,
MUST BE SUBMITTED TO THE INDUSTRY COMMITTEE AND MADE ONLY UPON ITS
RECOMMENDATION.  SUCH A POSITION WOULD HAVE NULLIFIED THEIR ARGUMENT
THAT THE STATUTE CONFERS NO AUTHORITY IN ANY CASE TO PROHIBIT
HOMEWORK.  THE PROVISION IS NEITHER A DEFINITION NOR A CLASSIFICATION
OF AN INDUSTRY.  IT RELATES MERELY TO A MODE OR METHOD OF CONDUCTING
THE INDUSTRY.  THE STATUTE PROVIDES THAT THE COMMITTEE SHALL RECOMMEND
MINIMUM WAGE RATES AND REASONABLE CLASSIFICATIONS, AND THAT THE
ADMINISTRATOR, IF HE DISAPPROVES "SUCH RECOMMENDATIONS," SHALL REFER
THEM EITHER TO THE COMMITTEE OR TO ANOTHER COMMITTEE.  SEC. 8(A), (B),
(C), (D).  NOTHING IN THE ACT REQUIRES THE ADMINISTRATOR TO TAKE THE
COMMITTEE'S RECOMMENDATION CONCERNING THE TERMS AND CONDITIONS FOUND
NECESSARY TO MAKE THEIR RECOMMENDATION AND THE ORDER BASED ON IT
EFFECTIVE.  HE MUST FIND THAT THE TERMS AND CONDITIONS HE IMPOSES ARE
NECESSARY FOR THIS PURPOSE.  HE DID SO IN THIS CASE, AFTER EXTENDED
HEARINGS, UPON AMPLE EVIDENCE AND UPON FINDINGS OF NECESSITY NOT
QUESTIONED.  TO SAY THAT IN SUCH CIRCUMSTANCES HE CAN ADOPT NO TERM OR
CONDITION WHICH MATERIALLY ALTERS THE INDUSTRY IS ONLY TO SAY CONGRESS
DID NOT MEAN WHAT IT SAID AND THAT THE INDUSTRY CANNOT BE MADE SUBJECT
TO THE STATUTE'S REGULATION.  IT IS ALSO TO IGNORE "THE DISTINCT
SEPARATION OF THE FUNCTIONS TO BE PERFORMED BY THE COMMITTEE UNDER SEC.
8(A), (B), (C), (D), FROM THAT TO BE PERFORMED BY THE ADMINISTRATOR
AFTER SUBMISSION OF THE COMMITTEE'S REPORT  ..."  OPP COTTON MILLS V.
ADMINISTRATOR, 312 U.S. 126, 147. 

PETITIONERS' ARGUMENTS REST CHIEFLY ON THEIR VIEWS OF THE LEGISLATIVE
HISTORY AND THE CHARACTER OF THE PROHIBITION.  THE LATTER, THEY SAY, IS
NOT A "METHOD OF ENFORCEMENT" BUT IS RATHER A FORM OF "EXPERIMENTAL
SOCIAL LEGISLATION" TOUCHING A MATTER NOT INCIDENTAL TO THE ORDER, BUT
IN THE NATURE OF A WHOLLY INDEPENDENT SUBJECT BEYOND THE PURVIEW OF THE
STATUTE AND THEREFORE OF THE ADMINISTRATOR'S POWER. 

THIS ARGUMENT IS CLOSELY INTERLACED WITH THE CONTENTIONS DRAWN FROM
THE LEGISLATIVE HISTORY AND THE STATUTE'S ENFORCEMENT PROVISIONS,
PRESENTLY TO BE NOTED.  IN SO FAR AS IT IS INDEPENDENT OF THESE,
HOWEVER, IT RESTS ON WHOLLY UNTENABLE PREMISES.  ONE IS THAT THE
PROHIBITION IS MERELY AN "ENFORCEMENT" MEASURE.  IT IS RATHER PRIMARILY
PREVENTIVE IN CHARACTER, INTENDED TO AID IN MAKING THE ORDER EFFECTIVE
AND TO ELIMINATE THE NEED FOR ENFORCEMENT.  BUT, IN ACCORDANCE WITH
THEIR "ENFORCEMENT" CONCEPTION, PETITIONERS' LARGER FALLACY IS THAT THE
ADMINISTRATOR CAN TAKE NO ACTION TOWARD MAKING HIS ORDER EFFECTIVE
WHICH, IF TAKEN AS A MATTER OF INDEPENDENT LEGISLATION NOT EXPRESSLY
RELATED TO THE FAIR LABOR STANDARDS ACT'S OBJECTS, WOULD PRODUCE
SUBSTANTIALLY THE SAME SOCIAL AND ECONOMIC EFFECTS, APART FROM THOSE
OBJECTS.  IN THIS VIEW THE ADMINISTRATOR'S POWER IS SO RESTRICTED THAT
HE CAN DO NOTHING IF, IN ADDITION TO MAKING THE RATE EFFECTIVE AND
SAFEGUARDING IT AGAINST CIRCUMVENTION, OTHER SOCIAL AND ECONOMIC
CONSEQUENCES WOULD RESULT.    THE ANSWER IS OBVIOUS.  SECTION 8(F), IN
DIRECTING THE ADMINISTRATOR TO INCLUDE "SUCH TERMS AND CONDITIONS" AS
HE "FINDS NECESSARY TO CARRY OUT THE PURPOSES OF SUCH ORDERS," DID NOT
FORBID HIM TO TAKE THE ONLY MEASURES WHICH WOULD BE EFFECTIVE, MERELY
BECAUSE OTHER CONSEQUENCES NECESSARILY WOULD FOLLOW.  THE LANGUAGE
NEITHER STATES EXPRESSLY NOR IMPLIES THAT HE IS TO DO ONLY WHAT WILL
ACHIEVE THE STATED ENDS AND NOTHING MORE.  THE STATUTE DOES NOT DIRECT
THE ADMINISTRATOR TO MAKE THE RATE EFFECTIVE BY ALL NECESSARY MEANS
EXCEPT THOSE WHICH MAY HAVE OTHER SOCIAL OR ECONOMIC CONSEQUENCES. 
HIS POWER, IT IS TRUE, IS NOT ONE OF SOCIAL OR ECONOMIC REFORM, EXCEPT
AS THAT POWER RELATES TO MAINTAINING AUTHORIZED MINIMUM WAGES AND THE
STATUTORY HOURS OF LABOR.  BUT THE ADMINISTRATOR HAS NOT EXERCISED HIS
AUTHORITY FOR SUCH AN EXTRANEOUS PURPOSE.  HE EXPRESSLY DISCLAIMED ANY
SUCH OBJECT.  FN20  THE ENTIRE RECORD SUPPORTS THE DISCLAIMER.  THE
WHOLE BEARING OF THE EVIDENCE AND THE FINDINGS WAS TOWARD THE EFFECTS
OF HOMEWORK UPON THE WAGE RATE AND ITS MAINTENANCE, NOT UPON OTHER
EVILS IT MAY GENERATE.  PETITIONERS' ARGUMENT, NOT QUESTIONING THE
NECESSITY FOR THE PROHIBITION OR THE FINDING THAT IT EXISTS, WOULD
ACCOMPLISH INDIRECTLY WHAT DIRECT CHALLENGE WHICH THEY DO NOT ATTEMPT
WOULD ACHIEVE, IF SUCCESSFUL.  ABSENT THE NECESSITY, THE
ADMINISTRATOR'S POWER WOULD NOT GO TO THIS LENGTH.  PRESENT THAT
NECESSITY, TO DENY IT, BECAUSE OTHER EFFECTS NECESSARILY BUT
INCIDENTALLY MUST FOLLOW HIS ACTION, WOULD BE TO NULLIFY BOTH HIS POWER
AND THE STATUTE.  NOTHING IN THE STATUTE, WHETHER OF LETTER OR OF
SUBSTANCE, WARRANTS SUCH A LIMITATION.  WHAT IS "INCIDENTAL," WHAT
"INDEPENDENT" OF STATED STATUTORY ENDS OFTEN PRESENTS A DIFFICULT
ISSUE.  BUT THAT IS SELDOM IF EVER TRUE WHEN TO DENY THE AUTHORITY OR
OTHER FEATURE QUESTIONED WOULD NULLIFY THE ACT BY READING OUT OF ITS
PURVIEW THE ONLY MEANS FOR MAKING IT EFFECTIVE.  FN21 

HOMEWORK IN THIS CASE IS NOT AN INDEPENDENT INDUSTRY.  IT IS
CONDUCTED LARGELY BY THE SAME EMPLOYERS WHO MAINTAIN FACTORY
ESTABLISHMENTS OR BY "CONTRACTORS" WHO ARE IN COMPETITION WITH SUCH
EMPLOYERS.  HOMEWORKERS ARE AN INTEGRAL PART OF THE SINGLE INDUSTRY. 
THEIR LABOR COMPETES WITH THE LABOR OF FACTORY WORKERS, WITHIN THE SAME
ESTABLISHMENT, BETWEEN ESTABLISHMENTS, AND BETWEEN REGIONS WHERE THE
INDUSTRY IS CONCENTRATED.  THE EFFECTS OF THEIR COMPETITION WITH
FACTORY WORKERS ARE, AS HAS BEEN SHOWN, TO DESTROY THE LATTERS' RIGHT
AS WELL AS THEIR OWN TO HAVE, PRACTICALLY SPEAKING, THE BENEFIT OF THE
MINIMUM WAGE GUARANTEED BY THE ACT.  THEY REPRESENT THE SMALLER
FRACTION OF THE INDUSTRY, BOTH IN NUMBERS AND IN WORKING TIME.  SUCH
ARE THE UNCONTESTED FINDINGS OF FACT.  FN22 

WHEN ALL OF THESE FACTS ARE TAKEN INTO ACCOUNT, THE CASE IS CLEARLY
NOT AN INSTANCE OF EFFORT TO ACHIEVE ENDS BEYOND OR INDEPENDENT OF THE
STATUTORY OBJECTS.  IT RATHER EXHIBITS BUT AN EXERCISE OF THE NECESSARY
MEANS TO ACCOMPLISH THOSE OBJECTS.  THIS IS CONFIRMED, FURTHER, BY THE
EVIDENCE AND THE FINDINGS WHICH SHOW THAT THE PROHIBITION WILL NOT
ELIMINATE THE GREAT MAJORITY OF HOMEWORKERS FROM THE INDUSTRY; BUT ON
THE CONTRARY WILL RESULT ONLY IN TRANSFER OF THE SCENE OF THEIR WORK
FROM THE HOME TO THE FACTORY AND WILL DO THIS WITHOUT UNDUE HARDSHIP. 
FN23  FOR THE LARGER NUMBER OF WORKERS UNABLE TO MAKE THE TRANSFER, THE
EXCEPTIONS ALLOWED BY THE ORDER WILL PROVIDE AN ADEQUATE MODE FOR
PERMITTING CONTINUANCE OF WORK AT HOME.  FN24 

THE ARGUMENT FROM THE LEGISLATIVE HISTORY UNDERTAKES, IN EFFECT, TO
CONTRADICT THE TERMS OF SEC. 8(F) BY NEGATIVE INFERENCES DRAWN FROM
INCONCLUSIVE EVENTS OCCURRING IN THE COURSE OF CONSIDERATION OF THE
VARIOUS AND WIDELY DIFFERING BILLS WHICH FINALLY, BY COMPROMISE AND
ADJUSTMENT BETWEEN THE TWO HOUSES OF CONGRESS, EMERGED FROM THE
CONFERENCE AS THE ACT.  THE PLAIN WORDS AND MEANING OF A STATUTE CANNOT
BE OVERCOME BY A LEGISLATIVE HISTORY WHICH, THROUGH STRAINED PROCESSES
OF DEDUCTION FROM EVENTS OF WHOLLY AMBIGUOUS SIGNIFICANCE, MAY FURNISH
DUBIOUS BASES FOR INFERENCE IN EVERY DIRECTION.  THIS IS SUCH A CASE. 

PETITIONERS' MOST INSISTENT EMPHASIS IS UPON TWO THINGS.  ONE IS THAT
THE COMMITTEE IN CHARGE OF THE ORIGINAL SENATE BILL REPORTED THAT IT
WAS LIMITED TO TWO OBJECTIVES, THE ESTABLISHMENT OF MINIMUM WAGES AND
MAXIMUM HOURS AND THE PROHIBITION OF INDUSTRIAL CHILD LABOR.  FN25  THE
OTHER, THAT AT VARIOUS STAGES OF CONSIDERATION THE SENATE BILL
CONTAINED, IN THE SECTION (9(6)) COMPARABLE TO WHAT IS NOW SEC. 8(F), A
PARENTHETICAL CLAUSE WHICH EXPRESSLY INCLUDED HOMEWORK AMONG OTHER
SPECIFIED PRACTICES THE ADMINISTRATOR WAS AUTHORIZED TO RESTRICT OR
PROHIBIT,  FN26 AND THIS CLAUSE WAS OMITTED FROM THE FINAL CONFERENCE
DRAFT. 

THE FIRST OBJECTION MERELY REPEATS IN ANOTHER GUISE THE ARGUMENT THAT
HOMEWORK IS AN INDEPENDENT SUBJECT MATTER WHOLLY WITHOUT THE STATUTE'S
PURVIEW, BUT BOLSTERS THIS WITH THE ASSUMPTION THAT BECAUSE OPPRESSIVE
CHILD LABOR WAS COVERED EXPRESSLY, HOMEWORK AND ALL OTHER FACTORS
AFFECTING MAINTENANCE OF MINIMUM WAGES WERE LEFT ENTIRELY UNTOUCHED, IF
THEY PRODUCE OTHER EVILS WHICH INDEPENDENT LEGISLATION MIGHT REACH,
MERELY BECAUSE THEY WERE NOT ALSO SPECIFICALLY MENTIONED.  THE
ASSUMPTION IGNORES THE FACT THAT THE CHILD LABOR PROVISIONS ARE
THEMSELVES INDEPENDENT PROHIBITIONS, NOT LIMITED TO OPERATION IN
SITUATIONS WHERE CHILD LABOR HAS HARMFUL EFFECTS ON MAINTAINING THE
MINIMUM WAGE RATE BUT WORKING ENTIRELY INDEPENDENTLY OF SUCH
CONSEQUENCES.  FN27 THOSE PROVISIONS ARE THEREFORE NOT MERELY MEANS OF
PUTTING INTO EFFECT AND MAINTAINING THE WAGES REQUIRED BY THE ACT, AS
IS THE ADMINISTRATOR'S PROHIBITION OF HOMEWORK.  THE FORMER WOULD APPLY
REGARDLESS OF ANY EFFECT UPON THE WAGE STRUCTURE.  THE LATTER CAN APPLY
ONLY WHEN IT IS CLEAR THAT SUCH EFFECTS REQUIRE THIS IN ORDER TO
MAINTAIN AND SAFEGUARD THAT STRUCTURE. 

THIS DIFFERENCE IS IN FACT THE DIFFERENCE BETWEEN END AND MEANS, MADE
SUCH BY THE TERMS OF THE STATUTE ITSELF.  CONGRESS BY STATING EXPRESSLY
ITS PRIMARY ENDS DOES NOT DENY RESORT TO THE MEANS NECESSARY TO ACHIEVE
THEM.  MENTION OF CHILD LABOR THEREFORE GIVES NO GROUND TO INFER, FROM
FAILURE EXPRESSLY TO MENTION HOMEWORK, THAT THE LATTER WAS NOT INCLUDED
WITHIN THE GENERAL LANGUAGE WHICH COMPREHENDS ALL NECESSARY MEANS TO
ACHIEVE THE ACT'S PRIMARY OBJECTS.  EXACTLY THE OPPOSITE CONCLUSION
MUST BE DRAWN ON THE RECORD, IN VIEW OF THE ADMINISTRATOR'S UNCONTESTED
FINDINGS CONCERNING THE EFFECTS OF HOMEWORK IN PRODUCING HIDDEN CHILD
LABOR AT SUBSTANDARD WAGES, THUS CIRCUMVENTING THE ACT IN TWO OF ITS
PRIMARY OBJECTS.  FN28  THESE FINDINGS THEREFORE GIVE ADDED REASON TO
SUSTAIN HIS CONCLUSION THAT HOMEWORK WAS NOT PUT BEYOND HIS POWER TO
PRESCRIBE THE MEANS NECESSARY TO ACHIEVE THE PURPOSES OF THE ORDER AND
OF THE ACT. 

THE SECOND OBJECTION FARES NO BETTER.  IT IS MERE NEGATIVE INFERENCE
DRAWN FROM THE BARE FACT THAT THE ILLUSTRATIVE PARENTHETICAL CLAUSE WAS
OMITTED FROM THE FINAL CONFERENCE DRAFT WHICH BECAME THE ACT.  NOTHING
IN THE COMMITTEE OR CONFERENCE REPORTS OR IN THE DEBATES INDICATES A
PURPOSE TO PUT HOMEWORK, OR THE OTHER PRACTICES ENUMERATED AT ONE TIME
OR ANOTHER WITHIN THE PARENTHESES, BEYOND THE PURVIEW OF THE ACT OR OF
THE ADMINISTRATOR'S POWER WHEREVER THESE PRACTICES ARE SHOWN TO PREVENT
ACHIEVEMENT OF THE STATUTE'S ENDS. 

THE ANSWER TO THE ARGUMENT MICROSCOPICALLY MADE FROM THE LONG COURSE
OF LEGISLATIVE EVENTS IS OBVIOUS.  FROM THE BEGINNING THE PARENTHETICAL
CLAUSE WAS BUT ILLUSTRATIVE OF THE GENERAL AUTHORITY CONFERRED BY THE
PROVISION OF WHICH IT WAS A PART.  FN29  IT "GREW UP THROUGH STEP BY
STEP ADDITIONS, AMONG WHICH 'HOMEWORK' WAS ONE," 144 F.2D 624, UNTIL
THE PARENTHETICAL ILLUSTRATIONS THREATENED TO SWALLOW UP THE GENERAL
AUTHORITY.  IF NOTHING MORE HAD OCCURRED THAN ELIMINATION OF THE
ILLUSTRATIONS FROM A BILL OTHERWISE ACCEPTED, THE CHANGE WELL MIGHT BE
PUT DOWN, AS JUDGE HAND SUGGESTS, 144 F.2D 624, "TO THE BELIEF THAT IT
WAS UNWISE TO SPECIFY SO MUCH, LEST THE SPECIFICATION BE TAKEN AS
EXHAUSTIVE." 

HOWEVER, AS HE POINTS OUT, THE COURSE OF EVENTS WAS QUITE DIFFERENT,
AND EVEN MORE CONCLUSIVE AGAINST THE PETITIONERS' VIEW.  THE SECTION
CONTAINING THE PARENTHESIS BEGAN, AND CONTINUED, AS A FEATURE OF THE
SENATE BILL.  THIS FOLLOWED AN ENTIRELY DIFFERENT PLAN FROM THE ONE
EVENTUALLY ADOPTED, WHICH WAS A COMPROMISE OF SENATE AND HOUSE
PROPOSALS.  THE SENATE BILL PLACED ADMINISTRATION OF THE ACT IN THE
HANDS OF A BOARD, WHICH WAS BY ORDER TO FIX ALL MINIMUM WAGES.  IN THIS
FORM, INCLUDING THE PARENTHETICAL REFERENCE TO HOMEWORK,  FN30  THE
SENATE ADOPTED THE BILL.  THE HOUSE COMMITTEE TO WHICH THE MEASURE WAS
REFERRED LIKEWISE APPROVED IT.  BUT THE HOUSE ITSELF DECLINED TO DO SO.
IT ADOPTED A DIFFERENT SCHEME, SUBSTITUTING STATUTORY WAGES FOR WAGES
FIXED BY ORDER AS THE SENATE BILL PROPOSED.  FN31  THERE WAS THEREFORE
NO NEED FOR, AND THE HOUSE BILL DID NOT CONTAIN, THE PARENTHESIS OR THE
GENERAL PROVISION OF WHICH IT FORMED A PART. 

WHEN THE TWO BILLS CAME TO CONFERENCE, COMPROMISE WAS WORKED OUT BY
WRITING AROUND THE CONFERENCE TABLE THE FINAL MEASURE COMBINING
FEATURES OF BOTH BILLS.  FN32  THE HOUSE PROVISIONS FOR AN
ADMINISTRATOR AND FOR STATUTORY WAGES WERE RETAINED.  BUT THE LATTER
WERE MODIFIED BY PROVIDING FOR "COMMITTEE" WAGES, TO BE FIXED BY ORDER
OF THE ADMINISTRATOR, BY INCLUDING THE PROVISIONS OF SEC. 8, INCLUDING
8(F), AND ALSO OF SEC. 6(A)(3) AND (4). 

INTO THE FINAL FORM OF THE MEASURE, THOUGH WITHOUT THE PARENTHESIS. 
THE CONFERENCE REPORT (H. REP. NO. 2738, 75TH CONG., 3D SESS.) CONTAINS
NO REFERENCE TO THE ELISION AND NONE APPEARS IN THE RECORD OF THE
ENSUING DEBATE.  83 CONG. REC. 9158, 9246.  THE HISTORY, ACCORDINGLY,
DOES NOT SUSTAIN THE NEGATIVE INFERENCE PETITIONERS WOULD DRAW FROM THE
OMISSION.  THE PARENTHESIS WAS INSERTED, IN THE SENATE, WITHOUT
DISCUSSION OR CONTROVERSY.  IT WAS LIKEWISE ELIMINATED WITHOUT
DISCUSSION OR CONTROVERSY.  SO FAR AS APPEARS, IT WAS NEVER SEPARATELY
CONSIDERED.  NOT THE CLAUSE ALONE OR PARTICULARLY, BUT THE ENTIRE BILL
CONTAINING IT WAS REJECTED BY THE HOUSE. 

THAT REJECTION IS NO EVIDENCE THAT THIS SINGLE FEATURE HAD SPECIAL
SIGNIFICANCE.  REJECTION OF AN ENTIRE BILL CANNOT BE TAKEN TO BE A
SPECIFIC REJECTION OF EACH AND EVERY FEATURE, MORE ESPECIALLY OF THOSE
LATER REINTRODUCED IN THE FINAL DRAFT.  FN33  THE MOST TENABLE
CONCLUSION IS DRAWN BY JUDGE HAND, THAT "THE SECTION, WHICH HAD
APPARENTLY DIED WITH THE SENATE PLAN, WAS LIFTED OUT OF THAT SETTING,
AND WAS PUT INTO THE COMPROMISE BILL AS IT HAD STOOD ORIGINALLY."  AS
HE SAYS, "IT WOULD BE INDEED A FAR CRY TO INFER FROM THAT THAT ALL THE
ITEMS WHICH BY ACCRETION HAD MADE THEIR WAY INTO THE PARENTHESES WERE
IN THIS WAY EXCISED FROM THE ADMINISTRATOR'S POWERS.  INDEED, IF SO -
AS HE ARGUES - HE COULD NOT EVEN REGULATE LABELS  ..."  144 F.2D AT
624. 

THE AMENDMENT TO SEC. 6, RELATING TO HOMEWORK IN PUERTO RICO AND THE
VIRGIN ISLANDS, ADOPTED IN 1940,  FN34  AND CONGRESS' FAILURE IN 1939
AND 1940 TO ADOPT AN AMENDMENT PROPOSED BY THE ADMINISTRATOR TO
AUTHORIZE EXPLICITLY PROHIBITION OF HOMEWORK  FN35  CANNOT OPERATE
RETROACTIVELY, AS IS URGED, TO GIVE THE STATUTE ENACTED IN 1938 A
DIFFERENT MEANING FROM WHAT IT THEN ACQUIRED.  FN36  AND PETITIONERS'
CONTENTIONS DRAWN FROM THE ACT'S ENFORCEMENT PROVISIONS MISCONCEIVE
THEIR EFFECT. 

THE IDEA SEEMS TO BE TWOFOLD, FIRST, THAT THE ADMINISTRATOR HAS NO
ENFORCEMENT FUNCTIONS UNDER THIS ACT; OR, IN ANY EVENT, THAT THE ACT
PROVIDES NO MEANS FOR ENFORCING THE "TERMS AND CONDITIONS," INCLUDING
RESTRICTION OR PROHIBITION OF HOMEWORK, WHICH HE MAY INCLUDE IN HIS
ORDER.  FN37 

THE ADMINISTRATOR'S FUNCTION UNDER SEC. 8(F), THOUGH PRIMARILY
PREVENTIVE, OBVIOUSLY IS RELATED TO ENFORCEMENT.  AND FURTHER, HE IS
EXPRESSLY GRANTED POWERS BEARING DIRECTLY TO THAT END.  APART FROM HIS
INVESTIGATIVE AUTHORITY UNDER SEC. 11, HE HAS POWER ALSO BY EXPRESS
PROVISION OF THAT SECTION TO BRING SUITS UNDER SEC. 17 TO RESTRAIN
VIOLATIONS OF WAGE ORDERS.  FN38 

WE NEED NOT DETERMINE WHETHER THIS INCLUDES AUTHORITY TO SUE
INDEPENDENTLY TO RESTRAIN VIOLATIONS OF "TERMS AND CONDITIONS" PROPERLY
INCLUDED IN SUCH AN ORDER OR TO ASK FOR THIS RELIEF AS INCIDENTAL TO
ENJOINING VIOLATIONS OF THE RATE SPECIFIED.  CF. HECHT CO. V. BOWLES,
321 U.S. 321, 330; ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436,
461; UNITED STATES V. MORGAN, 307 U.S. 183, 194; WARNER & CO. V. LILLY
& CO., 265 U.S. 526, 532.  BUT CERTAINLY THE ABSENCE OF SUCH AUTHORITY
CANNOT BE ASSUMED, CLOSELY RELATED AS IT WOULD BE TO ENFORCEMENT OF THE
ORDER'S PRIMARY TERM.  CONGRESS DID NOT INCLUDE AUTHORITY TO PRESCRIBE
"TERMS AND CONDITIONS" MERELY AS A PREACHMENT.  CF. CALIFORNIA DRIVE-IN
RESTAURANT ASSN. V. CLARK, 22 CAL.2D 287, 140 P.2D 657.  WE DO NOT
THEREFORE CONSIDER FURTHER THESE ASSUMPTIONS. 

FINALLY, PETITIONERS INSIST THAT POWER TO PROHIBIT HOMEWORK COULD NOT
HAVE BEEN INTENDED BECAUSE THE AUTHORITY TO PRESCRIBE "TERMS AND
CONDITIONS" APPLIES ONLY TO "COMMITTEE," NOT TO "STATUTORY" WAGES AND
WILL EXPIRE, BY THE TERMS OF SEC. 8(E),  FN39  ON OCTOBER 23, 1945,
SEVEN YEARS FROM THE EFFECTIVE DATE OF SEC. 8.  THIS ARGUMENT INVOLVES
A MEDLEY OF ASSUMPTIONS AND CONCLUSIONS, SOME CONTRARY TO THE FACT,
OTHERS OF DOUBTFUL VALIDITY.  AMONG THEM ARE THE IDEAS:  (1) THAT THE
POWER TO PRESCRIBE "TERMS AND CONDITIONS" APPLIES ONLY TO "COMMITTEE"
WAGES; (2) THAT THE POWER TO PRESCRIBE OR MAINTAIN SUCH WAGES EXPIRES
ALTOGETHER AT THE END OF THE SEVEN YEARS; AND (3), UPON THESE
HYPOTHESES, THAT IT WOULD BE "ABSURD TO ASSUME THAT CONGRESS INTENDED
THAT THE ADMINISTRATOR COULD MAKE SO DISRUPTIVE BUT TEMPORARY A
REGULATION AS THE PROHIBITION OF HOMEWORK WOULD ENTAIL."    THE LAST
CONCLUSION MIGHT BE ACCEPTED, IF ITS FOUNDATIONS WERE SOLID.  BUT THEY
CRUMBLE.  IN THE FIRST PLACE THE AUTHORITY CONFERRED BY SEC. 8(F) IS TO
BE READ, NOT AS IF IT WERE GIVEN AS OF THE DATE OF THE ORDER (AUGUST,
1943) OR THE TIME WHEN IT MAY BECOME EFFECTIVE,  FN40  BUT AS OF 1938,
WHEN THE SECTION TOOK EFFECT.  ACCORDINGLY, AT THE MINIMUM, THE
AUTHORITY GIVEN WAS TO APPLY OVER A PERIOD OF SEVEN YEARS.  AND THESE
WERE THE MOST CRUCIAL, BECAUSE THE INITIAL, YEARS IN THE STATUTE'S
ANTICIPATED LIFE.  THE SCOPE OF THE POWER WAS NOT CUT DOWN BECAUSE THE
ADMINISTRATOR CHOSE TO TRY FIRST THE LESS EFFECTIVE, BUT SIMILARLY
CONFERRED THOUGH LESS EXTENSIVE POWER OF REGULATION.    BEYOND THIS, IT
IS NOT TRUE THAT THE POWER EITHER TO PRESCRIBE "COMMITTEE" WAGES OR TO
INCLUDE "TERMS AND CONDITIONS" IN THE ORDER EXPIRES ALTOGETHER AT THE
END OF THE FIRST SEVEN YEARS.  SECTION 8(E) EXPRESSLY PROVIDES FOR
CONTINUANCE OR ISSUANCE OF WAGE ORDERS AFTER THAT TIME, WHENEVER THE
INDUSTRY COMMITTEE RECOMMENDS AND THE ADMINISTRATOR FINDS "BY A
PREPONDERANCE OF THE EVIDENCE  ...  THAT THE CONTINUED EFFECTIVENESS OR
THE ISSUANCE OF THE ORDER, AS THE CASE MAY BE, IS NECESSARY IN ORDER TO
PREVENT SUBSTANTIAL CURTAILMENT OF EMPLOYMENT IN THE INDUSTRY."  AND
SEC. 6(A)(3), PERHAPS ALSO 6(A)(4), EXPRESSLY CONTEMPLATES CONTINUANCE
OF WAGE ORDERS ISSUED UNDER SEC. 8 AFTER THE INITIAL SEVEN YEARS.  THE
EXACT SCOPE OF THESE PROVISIONS NEED NOT NOW BE DETERMINED.  IT IS
ENOUGH, FOR PRESENT PURPOSES, THAT THEY LEAVE SOME ROOM, AND IT MAY BE
CONSIDERABLE, FOR THE ISSUANCE OR CONTINUED EFFECTIVENESS OF WAGE
ORDERS AFTER OCTOBER 23, 1945. 

FINALLY, IT IS NOT NECESSARY IN THIS CASE TO DECIDE WHETHER THE POWER
TO PRESCRIBE "TERMS AND CONDITIONS" APPLIES ONLY TO "COMMITTEE" WAGES
AND NOT TO "STATUTORY" WAGES.  STRONG REASONS HAVE BEEN SUGGESTED FOR
BELIEVING IT APPLIES TO BOTH.  FN41  BUT THIS CASE INVOLVES ONLY
"COMMITTEE" WAGES.  THE POWER TO MAKE THEM EFFECTIVE AND TO PREVENT
EVASION WOULD NOT BE CUT DOWN, WERE IT MORE CLEAR THAN IT IS THAT THERE
IS NO AUTHORITY TO PRESCRIBE "TERMS AND CONDITIONS" FOR "STATUTORY"
WAGES OR WERE IT TRUE THAT AUTHORITY TO REQUIRE "COMMITTEE" WAGES WOULD
EXPIRE ALTOGETHER WITH THE INITIAL SEVEN-YEAR PERIOD.  THE QUESTION
WHETHER THE AUTHORITY TO PRESCRIBE "TERMS AND CONDITIONS" APPLIES TO
"STATUTORY" WAGES MAY BE LEFT FOR DECISION WHEN IT ARISES.  UNCERTAIN
AS THE ANSWER NOW IS, IT CANNOT GIVE SOLID GROUND FOR INFERENCE THAT
THE POWER TO PROHIBIT HOMEWORK WAS NOT A NECESSARY MEANS OF MAKING
EFFECTIVE THE MINIMUM WAGE PRESCRIBED BY THE ORDER. 

PETITIONERS' ARGUMENTS HAVE BEEN DIRECTED CHIEFLY TO THE POWER TO
PROHIBIT.  IF VALID, THEY WOULD APPLY EQUALLY TO THE AUTHORITY TO
RESTRICT OR REGULATE.  THEY WOULD NULLIFY THE ADMINISTRATOR'S POWER TO
ESTABLISH OR MAINTAIN MINIMUM WAGES IN THE EMBROIDERIES INDUSTRY.  THEY
CAN HAVE NO SUCH POTENCY. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  THE PETITION SOUGHT REVIEW ALSO ON QUESTIONS OF DUE PROCESS AND
DELEGATION OF LEGISLATIVE POWER.  CF. NOTE 10 INFRA. 

FN2  SECTION 6(A)(3), CF. ALSO SEC. 8(E) AND TEXT INFRA PAGE 267,
PROVIDES FOR ISSUANCE AND CONTINUANCE IN EFFECT OF WAGE ORDERS, TO SOME
EXTENT AT LEAST, AFTER THE SEVEN-YEAR PERIOD: "SEC.  6(A).  EVERY
EMPLOYER SHALL PAY TO EACH OF HIS EMPLOYEES  ...  (3) AFTER THE
EXPIRATION OF SEVEN YEARS  ...  NOT LESS THAN 40 CENTS AN HOUR, OR THE
RATE (NOT LESS THAN 30 CENTS AN HOUR) PRESCRIBED IN THE APPLICABLE
ORDER OF THE ADMINISTRATOR ISSUED UNDER SECTION 8, WHICHEVER IS LOWER
..." 

FN3  "THE COMMITTEE SHALL RECOMMEND TO THE ADMINISTRATOR THE HIGHEST
MINIMUM WAGE RATES FOR THE INDUSTRY WHICH IT DETERMINES, HAVING DUE
REGARD TO ECONOMIC AND COMPETITIVE CONDITIONS, WILL NOT SUBSTANTIALLY
CURTAIL EMPLOYMENT IN THE INDUSTRY."  SEC. 8(B).  RECOMMENDATIONS FOR
CLASSIFICATIONS ARE COVERED BY SEC. 8(C). 

FN4  CF. THE CONCURRING OPINION OF L. HAND, C.J., 144 F.2D 608, 623. 
THE COMBINATION IS THE RESULT OF A COMPROMISE, REACHED IN CONFERENCE,
OF DIFFERENCES BETWEEN THE SENATE AND THE HOUSE AS TO THE STRUCTURE OF
THE BILL.  CF. TEXT INFRA AT NOTE 32. 

FN5  THE INDUSTRY COMMITTEE (NO. 45) WAS APPOINTED JUNE 6, 1942, AND
ON JUNE 30 FOLLOWING SUBMITTED ITS UNANIMOUS REPORT AND
RECOMMENDATIONS, FOR THE 40-CENT RATE, TO THE ADMINISTRATOR.  PUBLISHED
NOTICE OF PUBLIC HEARING WAS GIVEN SEPTEMBER 16.  THE HEARING EXTENDED
OVER TEN DAYS OF THE FOLLOWING NOVEMBER.  THE ADMINISTRATOR BROADENED
ITS SCOPE TO INCLUDE THE QUESTION "WHAT, IF ANY, PROHIBITION,
RESTRICTION, OR REGULATION OF HOME WORK IN THIS INDUSTRY IS NECESSARY
TO CARRY OUT THE PURPOSE OF SUCH ORDER," ETC. 

INDUSTRY REPRESENTATIVES, WHO APPEARED, WERE UNANIMOUS, WITH ONE
EXCEPTION, IN SUPPORTING THE COMMITTEE'S RECOMMENDATION, BUT DIVIDED ON
RESTRICTING OR PROHIBITING INDUSTRIAL HOMEWORK.  LABOR REPRESENTATIVES
SUPPORTED BOTH PROPOSALS, AS DID REPRESENTATIVES OF FEDERAL AND STATE
AGENCIES, INCLUDING THE DEPARTMENTS OF LABOR OF THE UNITED STATES AND
OF THE STATES OF NEW YORK AND RHODE ISLAND. 

EXTENSIVE TESTIMONY WAS TAKEN AND MANY EXHIBITS WERE RECEIVED IN
EVIDENCE.  IN MANY OF ITS ASPECTS THE ADMINISTRATOR FOUND THE EVIDENCE
REPETITIOUS OF THAT UPON WHICH PREVIOUS FINDINGS WERE BASED APPROVING
THE RECOMMENDATIONS OF AN EARLIER INDUSTRY COMMITTEE (NO. 15), WHICH
RESULTED IN ESTABLISHING THE 37 1/2-CENT RATE BY ORDER EFFECTIVE
JANUARY 27, 1941.  ORAL ARGUMENT WAS RESTRICTED TO THE QUESTION OF
HOMEWORK, TO WHICH THE GREATER PART OF THE RECORD OF 1,691 PAGES
RELATES.  THE PROCEDURE WAS SUBSTANTIALLY THAT WHICH HAD BEEN FOLLOWED,
UPON THE SAME QUESTION, IN THE CASES OF SIX OTHER INDUSTRIES.  SEE THE
ADMINISTRATOR'S FINDINGS AND OPINION ON THE MINIMUM WAGE RECOMMENDATION
OF INDUSTRY COMMITTEE NO. 26 FOR, AND INDUSTRIAL HOMEWORK IN, THE
JEWELRY MANUFACTURING INDUSTRY, DATED OCTOBER 16, 1941, AND IN RELATION
TO THE KNITTED OUTERWEAR INDUSTRY (MARCH 30, 1942), WOMEN'S APPAREL
INDUSTRY (JULY 8, 1942), GLOVES AND MITTENS INDUSTRY (AUGUST 22, 1942),
BUTTON AND BUCKLE MANUFACTURING INDUSTRY (SEPTEMBER 19, 1942), AND
HANDKERCHIEF MANUFACTURING INDUSTRY (JANUARY 22, 1943). 

FN6  THE PROVISION FOR THE 40-CENT RATE BECAME EFFECTIVE SEPTEMBER
20, 1943.  THE ORDER PROVIDED THE PROHIBITION OF HOMEWORK SHOULD BECOME
EFFECTIVE AFTER NOVEMBER 15, 1943.  BUT THE DATE WAS POSTPONED,
SUCCESSIVELY, UNTIL JULY 26, 1944, WHEN THE CIRCUIT COURT OF APPEALS
STAYED ENFORCEMENT UNTIL THIS COURT SHOULD ACT ON THE PETITION FOR
CERTIORARI. 

THE ADMINISTRATOR FOUND THAT "THE ESTIMATED DIRECT INCREASE IN THE
WAGE BILL RESULTING FROM THE ESTABLISHMENT OF A MINIMUM WAGE RATE OF 40
CENTS AN HOUR WOULD BE 1.2 PER CENT IN THE THREE MAIN AREAS AND 2.6 PER
CENT IN THE OTHER AREAS."  THESE FINDINGS ARE RELATED TO OTHERS TO THE
EFFECT THAT "ALMOST 90 PERCENT OF THE EMBROIDERY ESTABLISHMENTS ARE
LOCATED IN THE NEW YORK CITY (INCLUDING NORTHERN NEW JERSEY), CHICAGO,
AND PHILADELPHIA METROPOLITAN AREAS  ...."  THE ADMINISTRATOR CONCLUDED
THAT "THE INSIGNIFICANT RISE IN OPERATING COSTS WHICH WILL RESULT FROM
THE RECOMMENDED MINIMUM WILL NOT CAUSE SUBSTANTIAL CURTAILMENT OF
EMPLOYMENT."  CF. SEC. 8(B), (D). 

FN7  CF. ARMOUR & CO. V. WANTOCK, 323 U.S. 126. 

FN8  THE EXCEPTIONS RELATE TO PERSONS OBTAINING SPECIAL HOMEWORK
CERTIFICATES WHO ARE "UNABLE TO ADJUST TO FACTORY WORK BECAUSE OF" AGE,
PHYSICAL OR MENTAL DISABILITY OR ARE UNABLE TO LEAVE HOME BECAUSE THEIR
PRESENCE IS REQUIRED TO CARE FOR AN INVALID; AND WERE ENGAGED IN
INDUSTRIAL HOMEWORK IN THE INDUSTRY PRIOR TO NOVEMBER 2, 1942(EXCEPT
THAT THIS REQUIREMENTS IS NOT TO BE APPLIED IN CASES OF UNUSUAL
HARDSHIP) OR ARE ENGAGED IN SUCH HOMEWORK UNDER THE SUPERVISION OF A
STATE VOCATIONAL REHABILITATION AGENCY OR A SHELTERED WORKSHOP AS
DEFINED IN THE CODE OF FEDERAL REGULATIONS. 

FN9  THE ADMINISTRATOR'S OPINION REVIEWS AT LENGTH THE CONDITIONS
SURROUNDING HOMEWORK IN THE INDUSTRY INEVITABLY TENDING TO PRODUCE
VIOLATION OF MINIMUM WAGE REQUIREMENTS; AND THE EFFORTS PREVIOUSLY MADE
UNDER BOTH STATE AND FEDERAL LEGISLATION TO OVERCOME THESE TENDENCIES
BY REGULATORY MEASURES. 

HIS CONCLUSIONS, UPON THE EVIDENCE, WERE IN GENERAL THAT BOTH STATE
AND FEDERAL EFFORTS AT REGULATION HAD BEEN INEFFECTIVE; THAT VIOLATIONS
WERE WIDESPREAD, OF GREAT VARIETY AND IN GREAT PART CONCEALED; AND THAT
THESE WERE DUE TO FACTORS INHERENT IN THE CONDITIONS UNDER WHICH
INDUSTRIAL HOMEWORK IS PERFORMED AND IMPOSSIBLE TO CORRECT BY THE
REGULATORY MEASURES APPLIED. 

THE ADMINISTRATOR'S REVIEW OF EFFORTS AT REGULATION, BY BOTH STATE,
CF. NOTE 17 INFRA, AND FEDERAL AUTHORITIES PRIOR TO THE FAIR LABOR
STANDARDS ACT, LED HIM TO CONCLUDE "THAT LABOR CONDITIONS IN INDUSTRIAL
HOME WORK ARE NOT SUSCEPTIBLE TO REGULATION," AND THAT, ACCORDING TO
"THE NEARLY UNANIMOUS VIEWPOINT OF FEDERAL AND STATE OFFICIALS HAVING
EXPERIENCE IN THE ADMINISTRATION OF LABOR LAWS,  ...  REGULATION,
RESTRICTION OR PROHIBITION OF INDUSTRIAL HOME WORK MUST BE ON A NATION
WIDE BASIS IF MINIMUM WAGE STANDARDS ARE TO BE PRESERVED AND UPHELD." 

LIKEWISE, "EXPERIENCE UNDER THE FAIR LABOR STANDARDS ACT OF 1938(TO
NOVEMBER, 1942) HAS ALSO INDICATED THAT LABOR CONDITIONS IN INDUSTRIAL
HOMEWORK IN THIS INDUSTRY ARE NOT SUSCEPTIBLE TO REGULATION THAT WILL
GUARANTEE THAT THE HOME WORKER WILL BE PAID THE ESTABLISHED MINIMUM
RATE ....  COMPLIANCE WITH THE ACT HAS BEEN THE EXCEPTION RATHER THAN
THE RULE."  CF. NOTE 16 INFRA.  SUCH HOMEWORK, IT IS FURTHER CONCLUDED,
"FURNISHES A READY MEANS OF CIRCUMVENTING OR EVADING THE MINIMUM WAGE
ORDER FOR THIS INDUSTRY" AND "MERE REGULATION  ...  INCLUDING
REGULATION OF THE RECORD-KEEPING PRACTICES OF EMPLOYERS OR GOVERNMENTAL
ESTABLISHMENT OF PIECE RATES WILL NOT BE ADEQUATE TO SECURE ENFORCEMENT
OF THE MINIMUM WAGE ORDER FOR THE EMBROIDERIES INDUSTRY." 

FN10  IN THE PETITION FOR THE WRIT OF CERTIORARI THE ONLY QUESTIONS
PRESENTED WERE (1) WHETHER THE STATUTE AUTHORIZES INCLUSION OF THE
PROHIBITION AS A "TERM AND CONDITION" OF THE WAGE ORDER; (2) WHETHER,
IF SO, THIS DELEGATION OF AUTHORITY IS CONFINED BY ADEQUATE STANDARDS;
AND (3) WHETHER THE FIFTH AMENDMENT FORBIDS CONGRESS TO AUTHORIZE THE
PROHIBITION "SOLELY BECAUSE OF THE INABILITY TO ENFORCE THE MINIMUM
WAGE RATE APPLICABLE TO HOMEWORKERS, WITHOUT REGARD TO THE SOCIAL AND
ECONOMIC CHARACTER OF SUCH EMPLOYMENT."  CF. NOTE 1 AND TEXT SUPRA. 

FN11  BY SEC. 10, "THE REVIEW BY THE COURT SHALL BE LIMITED TO
QUESTIONS OF LAW, AND FINDINGS OF FACT BY THE ADMINISTRATOR WHEN
SUPPORTED BY SUBSTANTIAL EVIDENCE SHALL BE CONCLUSIVE." 

FN12  THE ADMINISTRATOR'S REPORT STATED:  "IT WAS TESTIFIED AT THE
HEARING THAT HOME WORK IS CHEAPER IN TERMS OF LABOR COSTS THAN FACTORY
WORK AND IS USED BY EMPLOYERS TO REDUCE PRODUCTION COSTS, DESPITE THE
ADVANTAGES DERIVED FROM THE DIRECT SUPERVISION OVER PRODUCTION,
STANDARDIZATION, AND SPECIALIZATION WHICH ARE POSSIBLE IN THE FACTORY. 
THE EVIDENCE  ... CONCLUSIVELY SHOWS THAT LARGE PROPORTIONS OF HOME
WORK EMPLOYEES  ... ARE PAID LESS THAN THE APPLICABLE MINIMUM.  IT IS
APPARENT THAT IF SOME EMPLOYERS ARE ALLOWED TO UTILIZE HOME WORKERS AT
SUBMINIMUM WAGE SCALES, OTHER EMPLOYERS COMPELLED TO PAY A 40-CENT
MINIMUM WILL BE PLACED AT A COMPETITIVE DISADVANTAGE." 

FN13  THE NATURE OF HOMEWORK, IT WAS SAID, IS SUCH THAT ESTIMATES OF
THE NUMBER OF HOMEWORKERS IN THIS INDUSTRY ARE DIFFICULT, WHEREAS BY
CONTRAST EMPLOYMENT FIGURES FOR FACTORY WORKERS MAY BE ASCERTAINED WITH
EASE AND DEFINITENESS.  THE ESTIMATES STATED ARE FROM DATA SUBMITTED BY
THE ECONOMICS BRANCH, WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT
OF LABOR.  THE FIGURES CONCERNING THE NUMBER OF ESTABLISHMENTS AND OF
FACTORY WORKERS WERE DERIVED FROM THE CENSUS OF MANUFACTURES. 

FN14  ACCORDING TO THE REPORT OF THE ECONOMICS BRANCH, CF. NOTE 13
SUPRA, ENTITLED THE CURRENT STATUS OF HOME WORK IN THE EMBROIDERIES
INDUSTRY, OCTOBER, 1942, ONE OF THE MOST IMPORTANT FACTORS AFFECTING
EARNINGS OF HOMEWORKERS IS "THE GREAT MULTIPLICITY OF DESIGNS AND
STYLES."  VARIATIONS ARE CONSTANT AND SHORT LIVED.  PIECE RATES MUST BE
DETERMINED AND APPLIED WITH EVERY CHANGE.  FEW OPERATIONS LEND
THEMSELVES TO STANDARDIZATION, ESPECIALLY FOR HOMEWORK.  IN ONE
INSTANCE, DURING A PERIOD OF SIX MONTHS, A "LACE-CUTTING FIRM RECEIVED
WORK REQUIRING THE CUTTING OF 300 DIFFERENT DESIGNS, EACH OF WHICH HAD
A DIFFERENT PIECE RATE."  THE REPORT FURTHER STATES:  "PIECE RATES FOR
PLANT WORKERS CAN READILY BE CHECKED  ...  THE SETTING OF PIECE RATES
TO YIELD THE MINIMUM WAGE FOR HOME WORKERS IS A MUCH MORE COMPLEX
PROBLEM THAN FOR PLANT WORKERS." 

THE ADMINISTRATOR'S OPINION STATES THE MOST COMMON PRACTICE IN
SETTING PIECE RATES FOR HOME OPERATIONS IS BY THE TIMING OF A SAMPLE
WORKER IN THE FACTORY AND THE EVIDENCE SHOWED THIS WORKER MAY BE A VERY
SKILLED AND EXPERIENCED ONE.  OF THE FIRMS INSPECTED BY THE WAGE AND
HOUR DIVISION JUNE 1, 1939, TO JULY 1, 1942, "A REVIEW OF 211 SHOWED
THAT 80, OR 37.9 PERCENT, FIXED PIECE RATES FOR HOME WORKERS UPON THE
BASIS OF ARBITRARY ESTIMATES; 73, OR 34.6 PERCENT, BASED THE RATES FOR
HOME WORKERS ON TIME TESTS OF PLANT SAMPLE WORKERS; AND ONLY 40, OR 19
PERCENT, BASED THE RATES FOR HOME WORKERS ON TIME TESTS OF SOME OF THE
HOME WORKERS THEMSELVES."  CF. ALSO NOTE 16 INFRA. 

FN15  CF. NOTE 6 SUPRA. 

FN16  CF. NOTE 9 SUPRA.  THE ADMINISTRATOR'S REPORT STATED:  "THE
ECONOMICS BRANCH FOUND THAT EVEN DURING THE BOOM PERIOD FROM JANUARY
27, 1941 TO JULY 1942, 61.2 PERCENT OF THE HOME WORKERS IN THE INDUSTRY
AS A WHOLE WERE PAID LESS THAN 37 1/2 CENTS AN HOUR, IN VIOLATION OF
THE APPLICABLE MINIMUM WAGE ORDER.  IT WAS FOUND THAT 52.6 PERCENT OF
THE HOME WORKERS RECEIVED LESS THAN 35 CENTS AN HOUR; NEARLY 30 PERCENT
LESS THAN 25 CENTS; AND 17.4 PERCENT LESS THAN 20 CENTS.  FIFTEEN HOME
WORKERS, OR 1.8 PERCENT OF THE TOTAL NUMBER, WERE PAID AS LITTLE AS 10
CENTS AN HOUR OR LESS.  THE PERCENTAGE RECEIVING LESS THAN 37 1/2 CENTS
AN HOUR WAS HIGHEST, 90.2 PERCENT, IN LACE CUTTING AND LOWEST, 23.3
PERCENT, IN CROCHET BEADING.  MISCELLANEOUS EMBROIDERY HAD 81.3 PERCENT
OF THE HOME WORKERS RECEIVING LESS THAN THE WAGE ORDER MINIMUM,
PASSEMENTERIE, 74.1 PERCENT, HAND EMBROIDERY, 72.6 PERCENT, AND
SCHIFFLI AND SWISS HAND-MACHINE EMBROIDERY, 31.1 PERCENT."    MUCH
OTHER EVIDENCE, INCLUDING TESTIMONY OF INDIVIDUAL HOMEWORKERS AND OF
THE DIRECTOR OF THE WOMEN'S DIVISION, NEW YORK DEPARTMENT OF LABOR,
RELATING TO INSPECTIONS MADE IN 1941 AND 1942 INVOLVING 1,582
HOMEWORKERS, SUSTAINED THE ADMINISTRATOR'S STATEMENT, "THE EVIDENCE IN
THE RECORD, INCLUDING THE REPORT OF THE ECONOMICS BRANCH, WHICH SHOWED
LOW SUBMINIMUM EARNINGS FOR THE BULK OF THE HOMEWORKERS IN THIS
INDUSTRY, WAS NOT SERIOUSLY CONTESTED AT THE HEARING," AND HIS FURTHER
CONCLUSIONS THAT, IN VIEW OF COMPETITIVE RELATIONSHIPS, MERE REGULATION
OF HOMEWORK WOULD NOT BE ADEQUATE TO SECURE EFFECTIVE ENFORCEMENT OF
THE ORDER AND, LIKEWISE, THAT THIS COULD NOT BE HAD BY APPLYING THE
PROHIBITION TO ONLY PART OF THE INDUSTRY. 

FN17  HE FOUND SPECIFICALLY THAT THE EFFORTS OF NEW YORK AND NEW
JERSEY IN PROHIBITING DISTRIBUTORS WHO OPERATE NO SHOPS FROM
DISTRIBUTING HOMEWORK AND IN RESTRICTING SUCH CONTRACTORS, THOUGH
HAVING A BENEFICIAL EFFECT, HAD NOT "CHANGED THE ECONOMIC STRUCTURE OF
THE INDUSTRY AS PRESENTLY CARRIED ON"; THAT HIDDEN CHILD LABOR IS A
WIDESPREAD CHARACTERISTIC OF THE SYSTEM, DISCOVERABLE ONLY AFTER
EXTENSIVE INVESTIGATION PRESENTING AN ALMOST INSURMOUNTABLE PROBLEM FOR
ENFORCEMENT AGENCIES, EMPLOYERS AND HOMEWORKERS THEMSELVES; THAT
VIOLATIONS OF RECORD KEEPING REGULATIONS BY EMPLOYERS AND WORKERS ARE
CONSISTENT AND WIDESPREAD; AND THAT "IN VIEW OF THE COMPETITIVE
RELATIONSHIP BETWEEN DIFFERENT TYPES OF EMBROIDERY, ANY REGULATORY,
RESTRICTIVE, OR PROHIBITORY ORDER AFFECTING ONLY CERTAIN OPERATIONS
WOULD CREATE A COMPETITIVE DISADVANTAGE FOR THE EMPLOYERS ENGAGED IN
THOSE OPERATIONS." 

NOTING THAT TWELVE STATES HAD LEGISLATED, BEFORE 1900, TO REGULATE
TENEMENT WORKSHOPS, THE ADMINISTRATOR FOUND THAT "EFFECTIVE ENFORCEMENT
WAS IMPOSSIBLE, HOWEVER, AND HOME WORK REMAINED A SERIOUS PROBLEM." 
THE SUBSEQUENT PERIOD OF LEGISLATION BY A FEW STATES "ACHIEVED LITTLE
EFFECTIVE CONTROL PRIOR TO 1930."  NEW STATE LAWS, ENACTED DURING THE
1930'S, PROVIDING FOR ABOLITION OF HOMEWORK BY ADMINISTRATIVE ORDER,
"BECAME THE ONLY EFFECTIVE STATUTORY APPROACH TO A PROBLEM GENERALLY
CONSIDERED BEYOND REGULATION."  UNDER THE NATIONAL INDUSTRIAL RECOVERY
ADMINISTRATION, 118 OF THE 556 CODES INCLUDED HOMEWORK PROVISIONS; AND
86 PERCENT OF THE 118 PROHIBITED HOMEWORK.  HOMEWORK IN CONSEQUENCE WAS
GREATLY REDUCED, BUT ITS VOLUME TURNED SHARPLY UPWARD WHEN THE NATIONAL
INDUSTRIAL RECOVERY ACT WAS DECLARED UNCONSTITUTIONAL IN SCHECHTER
POULTRY CORP. V. UNITED STATES, 295 U.S. 495(1935). 

FN18  NO REASON IS APPARENT WHICH WOULD MAKE ANY FACTOR IN THE
HOMEWORK SITUATION EFFECTIVE TO NULLIFY THE 40-CENT RATE THAT WOULD NOT
APPLY ALSO TO THE 37 1/2-CENT RATE OR ANY OTHER MINIMUM, HOWEVER FIXED,
EXCEPT ONE PLACED SO LOW THAT EVEN HOMEWORKERS WOULD SEEK OTHER KINDS
OF EMPLOYMENT OR ACCEPT IDLENESS IN PREFERENCE.  THE ADMINISTRATOR MADE
NO FINDINGS OR CONCLUSIONS CONCERNING THIS SELF-EVIDENT MATTER. 

FN19  CF. TEXT AT NOTE 38FF INFRA. 

FN20  HIS OPINION EXPRESSLY STATES:  "THIS PROCEEDING IS NOT
CONCERNED WITH THE QUESTION WHETHER HOME WORK IS DESIRABLE OR
UNDESIRABLE FROM A SOCIAL POINT OF VIEW OR AS A FORM OF ECONOMIC
ORGANIZATION.  IT IS CONCERNED SOLELY WITH WHETHER THE HOME WORK SYSTEM
IN THE EMBROIDERIES INDUSTRY FURNISHES A MEANS OF CIRCUMVENTING OR
EVADING A WAGE ORDER PUTTING INTO EFFECT THE MINIMUM WAGE
RECOMMENDATION OF INDUSTRY COMMITTEE NO. 45 SO THAT IT IS NECESSARY TO
PROVIDE IN THE WAGE ORDER FOR ITS REGULATION, RESTRICTION OR
PROHIBITION IN ORDER TO CARRY OUT THE PURPOSES OF SUCH ORDER AND TO
SAFEGUARD THE MINIMUM WAGE RATE ESTABLISHED THEREIN." 

FN21  CF. SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 392;
UNITED STATES V. POWERS, 307 U.S. 214, 217; ARMSTRONG PAINT & VARNISH
WORKS V. NU-ENAMEL CORP., 305 U.S. 315, 333; BIRD V. UNITED STATES, 187
U.S. 118, 124. 

FN22  CF. NOTES 12, 13 AND TEXT AT NOTES 14 AND 16 SUPRA.  OTHER
RELEVANT FINDINGS OF THE ADMINISTRATOR NEED NOT BE QUOTED OR NOTED
SPECIFICALLY, REFERENCE BEING MADE TO HIS OPINION FOR THEM. 

FN23  THE ADMINISTRATOR'S OPINION DEVOTES SOME SEVENTEEN PAGES TO
REVIEW OF THE EVIDENCE IN THIS ASPECT OF THE CASE, INCLUDING PREVIOUS
EXPERIENCE WITH ABILITY OF BOTH EMPLOYERS AND HOMEWORKERS TO ADJUST TO
THE PROHIBITION.  THIS EXPERIENCE RELATED TO THE EFFECTS OF
PROHIBITIONS UNDER VARIOUS STATE LAWS AND THE NATIONAL INDUSTRIAL
RECOVERY ACT.  WITH REFERENCE TO THE LATTER, OF 75 FIRMS INVESTIGATED
BY THE CHILDREN'S BUREAU, DEPARTMENT OF LABOR, ONLY ONE DISCONTINUED
THE LINE OF GOODS ON WHICH HOMEWORKERS HAD BEEN EMPLOYED AND OF 3,135
HOMEWORK EMPLOYEES PRIOR TO THE PROHIBITION, 2,588 OR 82 PERCENT WERE
EMPLOYED IN FACTORIES AFTER THE PROHIBITION.  SIMILAR RESULTS WERE
SHOWN IN THE EXPERIENCE WITH STATE LAWS IN NEW JERSEY, NEW YORK AND
RHODE ISLAND. 

PETITIONERS PRESENTED CONTRARY EVIDENCE, LARGELY STATEMENTS OF
INDIVIDUAL HOMEWORKERS IN EMBROIDERY THAT THEY COULD NOT OR WOULD NOT
MAKE THE TRANSFER, FOR VARIOUS REASONS, IF THE PROHIBITION WERE
ADOPTED.  THE ADMINISTRATOR FOUND SOME OF THIS EVIDENCE UNACCEPTABLE
"AS FURNISHING A SOUND BASIS FOR PREDICATING THEIR ACTUAL CONDUCT WHEN
FACED WITH ACTUAL PROHIBITION" AND CONCLUDED THAT REASONABLE ADJUSTMENT
COULD BE MADE TO THE PROHIBITION BOTH BY EMPLOYEES AND BY THE
EMPLOYERS. 

FN24  CF. NOTE 8 SUPRA.  BECAUSE "RELATIVELY FEW HOME WORKERS WILL BE
ELIGIBLE TO CONTINUE HOME WORK UNDER THIS EXCEPTION," THE ADMINISTRATOR
FOUND THAT "NO THREAT TO THE STANDARDS OF THE WAGE ORDER" WOULD BE
PRESENTED BY MAKING IT. 

FN25  S. REP. NO. 884, 75TH CONG., 1ST SESS.; CF. 81 CONG. REC. 7658,
7659. 

FN26  THE CLAUSE ASSUMED VARIOUS FORMS IN THE COURSE OF CONSIDERATION
OF THE SENATE BILL.  THE SECTION COMPARABLE TO SEC. 8(F) WAS 9(6).  THE
ORIGINAL PARENTHESIS, APPARENTLY, WAS INSERTED IN COMMITTEE IN THE
FORM, "(INCLUDING THE RESTRICTION OR PROHIBITION OF SUCH ACTS OR
PRACTICES)."  S. REP. NO. 884, 75TH CONG., 1ST SESS., 8.  THIS WAS
AMENDED ON THE FLOOR, WITHOUT DEBATE OR RECORD VOTE, TO READ,
"(INCLUDING THE RESTRICTION OR PROHIBITION OF INDUSTRIAL HOME WORK OR
OF SUCH OTHER ACTS OR PRACTICES)," THUS INTRODUCING THE FIRST SPECIFIC
REFERENCE TO HOMEWORK.  81 CONG. REC. 7891.  THE BILL PASSED THE SENATE
WITH THE CLAUSE IN THIS FORM.  81 CONG. REC. 7957. 

THE HOUSE COMMITTEE ON LABOR APPROVED AND REPORTED THE SENATE BILL
WITH THIS VERSION OF THE PARENTHESIS, WHICH WAS RETAINED THROUGH MANY
REVISIONS OF THE BILL AFTER IT WAS RECOMMITTED.  EVENTUALLY THE CLAUSE
WAS EXPANDED IN THE HOUSE COMMITTEE TO READ, "(INCLUDING THE
RESTRICTION OR PROHIBITION OF INDUSTRIAL HOME WORK OR SUCH OTHER ACTS
OR PRACTICES AND SUCH REQUIREMENTS AS THE KEEPING OF RECORDS, LABELING,
PERIODIC REPORTING AND POSTING OF ORDERS AND SCHEDULES)."  HOUSE
CONFIDENTIAL SUBCOMMITTEE PRINT "A" OF FEBRUARY 18, 1938.  THE CLAUSE
DISAPPEARED ENTIRELY FROM THE HOUSE BILL WHEN, SHORTLY BEFORE PASSAGE,
THAT BODY CHANGED THE ENTIRE SCHEME BY SUBSTITUTING "STATUTORY" FOR
"COMMITTEE" WAGES.  CF. H. REP. NO. 2182, 75TH CONG., 3D SESS.; CF.
ALSO TEXT INFRA AT NOTES 32, 33. 

FN27  CF. SEC. 12 AND SEC. 3(1).  THE LATTER DEFINES "OPPRESSIVE
CHILD LABOR."  THE FORMER PROHIBITS PRODUCERS, MANUFACTURERS AND
DEALERS TO "SHIP OR DELIVER FOR SHIPMENT IN COMMERCE ANY GOODS PRODUCED
IN AN ESTABLISHMENT SITUATED IN THE UNITED STATES IN OR ABOUT WHICH
WITHIN THIRTY DAYS PRIOR TO THE REMOVAL OF SUCH GOODS THEREFROM ANY
OPPRESSIVE CHILD LABOR HAS BEEN EMPLOYED ..."  SEE ALSO NOTE 17 SUPRA. 

FN28  THE ADMINISTRATOR, REFERRING TO THE PROHIBITION OF SEC. 12, CF.
NOTE 27 SUPRA, NOTED THAT THE EMPLOYMENT OF CHILDREN IN EITHER
FACTORIES OR HOMES, IN THE PRODUCTION OF GOODS FOR COMMERCE, MUST BE
HIDDEN AND COMMENTED:  "THIS IN ITSELF CONTRIBUTES TO THE DETERIORATION
OF MINIMUM WAGE STANDARDS." 

FN29  CF. NOTE 26 SUPRA; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S.
177, 188FF, 211; FEDERAL LAND BANK V. BISMARCK CO., 314 U.S. 95, 100. 

FN30  CF. NOTE 26 SUPRA. 

FN31  THE HOUSE BILL ALSO SUBSTITUTED AN ADMINISTRATOR FOR THE
SENATE'S BOARD.  PETITIONERS ARGUE FROM THE FACT THAT SUBSTITUTION OF
"STATUTORY" FOR "COMMITTEE" WAGES WAS MADE BECAUSE THE HOUSE OBJECTED
TO THE DISCRETIONARY POWERS GIVEN THE BOARD IN THE SENATE BILL, H. REP.
NO. 2182, 75TH CONG., 3D SESS., AND BECAUSE IT LATER REJECTED
SUBSTITUTE BILLS PATTERNED AFTER THE SENATE MEASURE, CF. 83 CONG. REC.
7389, 7378, 7373, THAT CONGRESS, IN EFFECT, REJECTED EVERY FEATURE OF
THE BILLS WHICH THE HOUSE REFUSED TO ENACT.  THE NON SEQUITUR IS
APPARENT.  BUT IT MAY BE NOTED THE CONTENTION IGNORES ENTIRELY THE
SENATE'S PART IN LEGISLATION, AS WELL AS THE COMPROMISE EFFECTED IN
CONFERENCE BETWEEN THE TWO BODIES AND THE FACT THAT THIS REINTRODUCED
SOME OF THE DISCRETIONARY FEATURES CONTAINED IN THE BILLS THE HOUSE
REJECTED. 

FN32  CF. 83 CONG. REC. 9256; H. REP. NO. 2738, 75TH CONG., 3D SESS.
(CONFERENCE REPORT). 

FN33  CF. NOTE 31 SUPRA. 

FN34  SECTIONS 6(A)(5), 6(C), 5(E), ADDED BY ACT OF JUNE 26, 1940, 54
STAT. 615, 616.  SECTION 6(A)(5) DEALS IN DETAIL WITH HOMEWORKERS IN
PUERTO RICO AND THE VIRGIN ISLANDS. 

FN35  CF. H.R. 5435, 76TH CONG., 1ST SESS., SEC. 4; H. REP. NO. 522,
76TH CONG., 1ST SESS., 8; 84 CONG. REC. 3498; 86 CONG. REC. 5122. 

FN36  IT IS NOT ALTOGETHER CLEAR, FROM THE TERMS OF THE PROPOSED
AMENDMENT, CF. NOTE 35 SUPRA, WHETHER ITS PURPOSE AND EFFECT WERE TO
CLARIFY PREEXISTING PROVISIONS OR TO EXTEND THE ADMINISTRATOR'S
AUTHORITY.  THE DEBATE, 84 CONG. REC. 6620-6622, INDICATES THAT
OPPOSITION IN THE HOUSE WAS DUE PRIMARILY TO BELIEF THAT THE AMENDMENT,
IF ADOPTED, WOULD "TAKE AWAY SOME OF THE EXEMPTIONS THAT SO-CALLED FARM
PEOPLE ENJOY UNDER THE ACT." 

FN37  IT IS SAID THAT SEC. 8(F) DOES NOT PROVIDE FOR A HEARING WITH
REFERENCE TO THE "TERMS AND CONDITIONS" OF A WAGE ORDER AND THE FAILURE
OF THE ACT TO PROVIDE EXPRESSLY FOR THEIR ENFORCEMENT, AS IT DOES FOR
ENFORCEMENT OF ORDERS ISSUED UNDER SECS. 11(C), 12 AND 14, INDICATES
"THE STATUTE DID NOT INCLUDE THE PROHIBITION OF HOMEWORK AS A 'TERM AND
CONDITION' OF A WAGE ORDER."  THE ARGUMENT, IT MAY BE NOTED, APPLIES TO
ALL "TERMS AND CONDITIONS."  IN EFFECT IT URGES THAT ALL ARE
UNENFORCEABLE; AND THEREFORE NONE WAS INTENDED. 

FN38  SECTION 11(A) PROVIDES:  "THE ADMINISTRATOR  ...  MAY
INVESTIGATE  ...  SUCH FACTS, CONDITIONS, PRACTICES, OR MATTERS AS HE
MAY DEEM NECESSARY OR APPROPRIATE TO DETERMINE WHETHER ANY PERSON HAS
VIOLATED ANY PROVISION OF THIS ACT, OR WHICH MAY AID IN THE ENFORCEMENT
OF THE PROVISIONS OF THIS ACT  ....  EXCEPT AS PROVIDED IN SECTION 12,
THE ADMINISTRATOR SHALL BRING ALL ACTIONS UNDER SECTION 17 TO RESTRAIN
VIOLATIONS OF THIS ACT."  CF., E.G., WALLING V. HELMERICH & PAYNE, 323
U.S. 37; WALLING V. BELO CORP., 316 U.S. 624. 

FN39  "NOT ORDER ISSUED UNDER THIS SECTION WITH RESPECT TO ANY
INDUSTRY PRIOR TO THE EXPIRATION OF SEVEN YEARS FROM THE EFFECTIVE DATE
OF SECTION 6 SHALL REMAIN IN EFFECT AFTER SUCH EXPIRATION, AND NO ORDER
SHALL BE ISSUED UNDER THIS SECTION WITH RESPECT TO ANY INDUSTRY ON OR
AFTER SUCH EXPIRATION, UNLESS THE INDUSTRY COMMITTEE BY A PREPONDERANCE
OF THE EVIDENCE BEFORE IT RECOMMENDS, AND THE ADMINISTRATOR BY A
PREPONDERANCE OF THE EVIDENCE ADDUCED AT THE HEARING FINDS, THAT THE
CONTINUED EFFECTIVENESS OR THE ISSUANCE OF THE ORDER, AS THE CASE MAY
BE, IS NECESSARY IN ORDER TO PREVENT SUBSTANTIAL CURTAILMENT OF
EMPLOYMENT IN THE INDUSTRY." 

FN40  CF. NOTE 6 SUPRA. 

FN41  CF. THE OPINION OF L. HAND, C.J., 144 F.2D 608, 623, AND THE
RESERVATION IN THAT OF FRANK, C.J., AT 614, WITH THE AUTHORITIES HE
CITES IN NOTE 7. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE FAIR LABOR STANDARDS ACT GIVES THE ADMINISTRATOR CHARGED WITH ITS
ENFORCEMENT POWER TO FIX WAGES SO THAT THEY ATTAIN A BASIC MINIMUM
RATE.  IN VIEW OF THE VAST AND VARIED RANGE OF SITUATIONS THUS PLACED
UNDER HIS WAGEFIXING AUTHORITY, THE ADMINISTRATOR NATURALLY ENOUGH WAS
GIVEN BY CONGRESS THE POWER TO ISSUE THESE WAGE ORDERS ON "SUCH TERMS
AND CONDITIONS AS THE ADMINISTRATOR FINDS NECESSARY TO CARRY OUT THE
PURPOSES OF SUCH ORDERS, TO PREVENT THE CIRCUMVENTION OR EVASION
THEREOF, AND TO SAFEGUARD THE MINIMUM WAGE RATES ESTABLISHED THEREIN." 
SEC. 8(F), 52 STAT. 1060, 1065, 29 U.S.C. SEC. 208(F).  IT WOULD
DISREGARD THE AUTHORITY THUS GIVEN BY CONGRESS TO DENY THAT THE POWER
TO FIX MINIMUM WAGES CARRIES WITH IT THE SUBSIDIARY POWER TO FORBID AND
TO PREVENT EVASION OF WAGES SO FIXED.  IN THE LIGHT OF THE SHOWING MADE
ON THIS RECORD CONCERNING THE EMBROIDERIES INDUSTRY FOR WHICH THE
ADMINISTRATOR CONCEDEDLY FIXED VALID WAGE RATES, THE MEASURES THAT THE
ADMINISTRATOR TOOK THROUGH PROVISIONS DEALING WITH HOMEWORK IN THE
EMBROIDERIES INDUSTRY WERE RELEVANT TO, AND IN ENFORCEMENT OF, THE
SUBSIDIARY POWER GRANTED BY CONGRESS TO PREVENT EVASION OF THE RATES
FIXED FOR THAT INDUSTRY. 

AND SO I JOIN IN THE COURT'S OPINION. 

MR. JUSTICE ROBERTS. 

WITH DEFERENCE I VENTURE TO THINK THAT THE COURT HERE ESSAYS TO READ
INTO THE LAW WHAT ITS WORDS, FAIRLY CONSTRUED, DO NOT IMPORT.  THE
COURT ARRIVES AT THAT RESULT BY FORMING A JUDGMENT AS TO WHAT CONGRESS
PROBABLY SHOULD HAVE SAID, AND WOULD HAVE SAID, IF IT HAD CONSIDERED
THE MATTER, IN ORDER TO MAKE THE STATUTE WHAT THE COURT DEEMS A MORE
PERFECT INSTRUMENT FOR ATTAINING THE GENERAL OBJECTIVE WHICH CONGRESS
SOUGHT TO ATTAIN, AND THEN MAKES THE NECESSARY ADDITIONS TO THE
LANGUAGE CONGRESS HAS USED.  THE PRINCIPAL, IF NOT THE ONLY ARGUMENT I
FIND IN THE OPINION FOR READING SOMETHING INTO THE STATUTE, IS THAT
OTHERWISE IT CANNOT BE MOST EFFECTIVELY APPLIED TO CERTAIN INDUSTRIES
UNLESS THE INDUSTRIES THEMSELVES ARE MADE OVER.    SECTION 8(F)
PROVIDES THAT THE ADMINISTRATOR'S ORDERS ISSUED UNDER THE SECTION
"SHALL DEFINE THE INDUSTRIES  ...  TO WHICH THEY ARE TO APPLY."  IT IS
NOT SUGGESTED THAT THE ORDER IN QUESTION IS OF THIS DESCRIPTION.  THAT
WITH WHICH THE INDUSTRY COMMITTEE'S INVESTIGATION DEALT WAS A SINGLE
INDUSTRY IN WHICH TWO METHODS OF WORK WERE PURSUED.  OBVIOUSLY IT IS
NOT A DEFINITION OF THE INDUSTRY TO EXCLUDE FROM IT SOME OF THOSE WHO
LABOR IN IT. 

THE SECTION ALSO PROVIDES THAT THE ADMINISTRATOR'S ORDERS "SHALL
CONTAIN SUCH TERMS AND CONDITIONS AS THE ADMINISTRATOR FINDS NECESSARY
TO CARRY OUT THE PURPOSES OF SUCH ORDERS, TO PREVENT THE CIRCUMVENTION
OR EVASION THEREOF, AND TO SAFEGUARD THE MINIMUM WAGE RATES ESTABLISHED
THEREIN."  THE PHILOSOPHY OF THE COURT'S OPINION CAN BE NOTHING LESS
THAN THAT THE ADMINISTRATOR MAY, IF HE FINDS IT NECESSARY, REWRITE THE
STATUTE.  SUPPOSE HE FINDS THAT, IN A GIVEN INDUSTRY, IT IS, AS HE PUTS
IT, IMPOSSIBLE TO ENFORCE THE MINIMUM WAGE PROVISION.  MAY HE THEREUPON
ISSUE AN ORDER PROHIBITING THE FURTHER PROSECUTION OF THAT INDUSTRY AND
REQUIRING ALL THOSE WHO PURSUE IT TO FOLLOW SOME OTHER CALLING?  IT MAY
BE SAID THAT THE SUPPOSITION IS, ON ITS FACE, RIDICULOUS.  BUT IS IT
ANY MORE SO THAN WHAT WAS HERE ACCOMPLISHED?  FORTY PER CENT OF THE
WORKERS IN AN INDUSTRY, UNDER PAIN OF OTHERWISE LOSING THEIR
OCCUPATION, ARE COMPELLED TO GIVE UP WHAT THEY HAVE DONE TIME OUT OF
MIND, AND IF THEY DESIRE TO PURSUE THEIR CALLING TO DO SO UNDER
COMPLETELY CHANGED ECONOMIC CONDITIONS, NOT IN THEIR HOMES BUT IN
FACTORIES WHICH, IF THEY ARE AVAILABLE AT ALL, MAY BE REMOTE FROM THEIR
HOMES. 

THE LANGUAGE OF SEC. 8(F) HAS A REASONABLE AND PROPER OFFICE IN THE
CONTEXT OF THE ACT.  THE PROVISIONS PERMITTED BY THAT SECTION TO BE
INSERTED IN AN ORDER ARE OBVIOUSLY SUCH AS ARE INCIDENTAL TO
ADMINISTRATION, SUCH AS PERTAIN TO KEEPING RECORDS OR FILING REPORTS;
NOT EXORBITANT OR EXCESSIVE SO AS TO AMOUNT TO A REGULATION OR
SUPPRESSION OF AN EXISTING AND RECOGNIZED INDUSTRY. 

IN MY VIEW, ONE NEED NOT GO OUTSIDE THE PROVISIONS OF THE ACT TO BE
CONVINCED THAT CONGRESS NEVER INTENDED TO GRANT THE ADMINISTRATOR THE
POWER HE HAS ASSUMED.  IF IT BE THOUGHT, HOWEVER, THAT THE PHRASEOLOGY
OF SEC. 8(F) IS OF DOUBTFUL IMPORT, THE LEGISLATIVE HISTORY SEEMS TO ME
TO DEMONSTRATE THAT CONGRESS PURPOSELY, AND NOT BY INADVERTENCE, DENIED
THE ASSERTED POWER TO THE ADMINISTRATOR. 

THE STATUTE AIMED AT THREE THINGS - THE LIMITATION OF THE HOURS OF
WORK, THE FIXING OF MINIMUM COMPENSATION PER HOUR, AND THE PROHIBITION
OF CHILD LABOR.  WE MAY ELIMINATE FROM CONSIDERATION THE FIRST AND
THIRD OF THESE OBJECTS, AND THE STATUTORY PROVISIONS IMPLEMENTING THEM,
SINCE WE ARE CONCERNED ONLY WITH MINIMUM WAGES.  THE ACT CREATES A WAGE
AND HOUR DIVISION IN THE DEPARTMENT OF LABOR AND AUTHORIZES THE
APPOINTMENT OF AN ADMINISTRATOR TO BE IN CHARGE OF IT (SEC. 4).  IT
REQUIRES THE APPOINTMENT OF INDUSTRY COMMITTEES REPRESENTING THOSE
ENGAGED IN ANY INDUSTRY (SEC. 5).  IT REQUIRES EVERY EMPLOYER TO PAY
EVERY EMPLOYE ENGAGED IN COMMERCE, OR IN THE PRODUCTION OF GOODS FOR
COMMERCE, AT THE RATE OF NOT LESS THAN TWENTY-FIVE CENTS AN HOUR FOR
THE FIRST YEAR, NOT LESS THAN THIRTY CENTS AN HOUR DURING THE NEXT SIX
YEARS, AND NOT LESS THAN FORTY CENTS AN HOUR AFTER THE EXPIRATION OF
SEVEN YEARS.  THE ADMINISTRATOR IS GIVEN NO AUTHORITY TO ISSUE ANY
ORDERS CONCERNING THESE PRESCRIBED RATES OR THEIR APPLICATION IN
INDUSTRY, WITH THE SOLE EXCEPTION ABOUT TO BE MENTIONED. 

PROVISION IS MADE TO RAISE WAGES ABOVE THE PRESCRIBED MINIMA DURING
THE SEVEN YEAR PERIOD AFTER THE EFFECTIVE DATE OF THE ACT, WITHOUT
CURTAILING EMPLOYMENT OR DISRUPTING THE ECONOMY OF AN INDUSTRY. 
THIS.  THE LATTER SECTION PROVIDES FOR THE CONVENING OF INDUSTRY
COMMITTEES TO WHICH THE ADMINISTRATOR SHALL REFER THE QUESTION WHAT
MINIMUM WAGE RATE SHALL BE SET FOR THE INDUSTRY.  THE COMMITTEE IS TO
INVESTIGATE CONDITIONS IN THE INDUSTRY, HOLD HEARINGS, AND RECOMMEND
THE HIGHEST MINIMUM WAGE RATES WHICH IT DETERMINES, HAVING REGARD TO
ECONOMIC AND COMPETITIVE CONDITIONS, WILL NOT SUBSTANTIALLY CURTAIL
EMPLOYMENT. 

UPON RECEIVING THE COMMITTEE'S RECOMMENDATION, THE ADMINISTRATOR,
AFTER AN OPPORTUNITY FOR HEARING, MAY APPROVE OR DISAPPROVE THE
COMMITTEE'S RECOMMENDATION.  IF HE APPROVES, HE SHALL DO SO BY AN ORDER
THE EFFECT OF WHICH IS TO PUT INTO FORCE THE RECOMMENDED WAGE SCALE. 
SUCH ORDERS ARE NOT TO CONTINUE IN FORCE AFTER SEVEN YEARS FROM THE
EFFECTIVE DATE OF THE STATUTE UNLESS THE COMMITTEE AND THE
ADMINISTRATOR CONCLUDE, AND SO DECLARE, THAT IT IS WITHIN THE PURPOSES
OF THE ACT THAT THE WAGE FIXED BY THE ORDER SHALL REMAIN IN EFFECT
AFTER EXPIRATION OF THAT PERIOD NOTWITHSTANDING THE REQUIREMENT OF SEC.
6 THAT ALL WAGES SHALL REACH THE MINIMUM OF FORTY CENTS AN HOUR AT THAT
TIME. 

NOW IT IS ONLY IN ENFORCEMENT OF A COMMITTEE'S REPORT THAT THE
ADMINISTRATOR HAS POWER TO ISSUE AN ORDER WITH RESPECT TO WAGES, AND IT
IS IN THIS CONTEXT THAT SEC. 8(F) PERMITS HIM TO INCLUDE IN HIS ORDER
"SUCH TERMS AND CONDITIONS" AS HE "FINDS NECESSARY TO CARRY OUT THE
PURPOSES" OF THE ORDER, TO PREVENT CIRCUMVENTION OR EVASION, AND TO
SAFEGUARD THE WAGE RATES THEREBY ESTABLISHED. 

WITH RESPECT TO THE MINIMA FIXED BY SEC. 6, WHICH APPLY UNIVERSALLY
(EXCEPT WHERE THE SPECIAL PROCEDURE AUTHORIZED BY SEC. 8 IS INVOKED),
THE ADMINISTRATOR HAS NO AUTHORITY TO ISSUE ORDERS SUCH AS THAT ISSUED
IN THIS CASE.  HE CANNOT, BECAUSE HE FINDS IT DIFFICULT TO ENFORCE THE
ACT IN AN INDUSTRY, EITHER REMAKE OR SUPPRESS THE INDUSTRY.  THE RESULT
OF THE DECISION IS THAT, IN THE EXCEPTIONAL CASE WHERE A SPECIAL RATE
OF WAGES IS SET IN ADVANCE OF THE PRESCRIBED RATE, THE ADMINISTRATOR
MAY DO WHAT, IN THE GENERALITY OF CASES, HE MAY NOT DO.  THIS
CIRCUMSTANCE GAVE ONE OF THE JUDGES BELOW SO MUCH TROUBLE THAT HE WAS
WILLING TO HOLD, IN THE TEETH OF SEC. 6, THAT THE ADMINISTRATOR MIGHT
IN ALL CASES MAKE SUCH ORDERS AS THAT HERE IN QUESTION.  THUS, INSTEAD
OF WRITING IN ADDITIONAL PROVISIONS IN SEC. 8(F), AS DOES THIS COURT,
HE WAS PREPARED TO WRITE IN A NEW PROVISION IN SEC. 6 TO MAKE THE ACT A
COMPLETE AND LOGICAL STATUTE. 

WE HAVE, THEN, THIS SITUATION:  WITH RESPECT TO ANY INDUSTRY WHICH
HAS NOT BEEN TAKEN OUT OF THE PROVISIONS OF SEC. 6 BY AN INDUSTRY
COMMITTEE'S REPORT AND AN ADMINISTRATOR'S ORDER, THE ADMINISTRATOR
CANNOT FORBID HOME WORK.  AS RESPECTS AN INDUSTRY IN WHICH WAGES HAVE
BEEN FIXED BY A COMMITTEE, THE ADMINISTRATOR HAS THESE SWEEPING AND
DESTRUCTIVE POWERS.  AND THIS, IN SPITE OF THE FACT THAT THE COMMITTEE
IS AUTHORIZED AND REQUIRED TO DEAL WITH THE WAGES OF THE INDUSTRY AS A
WHOLE, AND DID SO DEAL WITH THEM HERE.  THE COMMITTEE NEVER CONSIDERED
THE QUESTION OF AN APPROPRIATE WAGE FOR THE INDUSTRY, UNDER THE
CONDITIONS WHICH WOULD PREVAIL, AFTER THE SUPPRESSION OF A SUBSTANTIAL
PART OF IT BY THE ADMINISTRATOR'S ORDER.  THE INTERPRETATION NOW
SANCTIONED OF THE ADMINISTRATOR'S STATUTORY AUTHORITY TO MAKE ORDERS
"TO PREVENT THE CIRCUMVENTION OR EVASION" OF THE PURPOSES OF THE ACT,
AS INCLUDING THE POWER TO MAKE OVER THE INDUSTRY TO WHICH A WAGE ORDER
IS TO APPLY, THUS DEFEATS ONE OF THE MOST FUNDAMENTAL PURPOSES OF THE
ACT.  BY SEC. 8 NO WAGE ORDER IS TO BE PROMULGATED WITH RESPECT TO AN
INDUSTRY UNLESS THE QUESTION OF THE MINIMUM WAGE FOR THE INDUSTRY HAS
BEEN REFERRED BY THE ADMINISTRATOR TO THE INDUSTRY COMMITTEE, AND THE
CONDITIONS IN THE INDUSTRY AND THE APPROPRIATE WAGE FOR IT HAVE BEEN
THE SUBJECTS OF INVESTIGATION AND REPORT BY THE COMMITTEE.  THE
COMMITTEE IS SPECIFICALLY ENJOINED TO RECOMMEND TO THE ADMINISTRATOR
"THE HIGHEST MINIMUM WAGE RATES FOR THE INDUSTRY WHICH IT DETERMINES,
HAVING DUE REGARD TO ECONOMIC AND COMPETITIVE CONDITIONS, WILL NOT
SUBSTANTIALLY CURTAIL EMPLOYMENT IN THE INDUSTRY."  AND BY SEC. 8(D)
THE ADMINISTRATOR, BEFORE HE PROMULGATES A WAGE ORDER, IS REQUIRED TO
FIND, AFTER "TAKING INTO CONSIDERATION THE SAME FACTORS AS ARE REQUIRED
TO BE CONSIDERED BY THE INDUSTRY COMMITTEE," THAT ITS RECOMMENDATIONS
WILL CARRY OUT THE PURPOSE OF SEC. 8.  THESE REQUIREMENTS MAKE IT CLEAR
THAT THE TERMS AND CONDITIONS WHICH SEC. 8 PERMIT THE ADMINISTRATOR TO
ATTACH TO HIS WAGE ORDERS DO NOT INCLUDE THOSE WHICH MATERIALLY ALTER
THE CONDITIONS OF THE INDUSTRY WHICH MUST BE CONSIDERED AND REPORTED
UPON BY THE COMMITTEE.  SUCH REQUIREMENTS ARE FUTILE IF THE
ADMINISTRATOR, UNDER GUISE OF PREVENTING EVASION OF A MINIMUM WAGE
ORDER, WHICH THE COMMITTEE HAS RECOMMENDED, HAS POWER, ON PROMULGATING
A WAGE ORDER, TO CHANGE THE INDUSTRY INTO ONE WHICH THE COMMITTEE HAS
NEVER INVESTIGATED.  THE ADMINISTRATOR'S ACTION IS IN EFFECT A
SUBVERSION OF THE COMMITTEE'S REPORT, WHEREAS THE ACT CONTEMPLATES A
RESUBMISSION TO THE COMMITTEE IN SUCH A CASE.  OPP COTTON MILLS V.
ADMINISTRATOR, 312 U.S. 126, 146-149. 

SURELY, IF ANY SUCH SWEEPING CONSTRUCTION IS TO BE GIVEN WORDS HAVING
A NARROWER IMPORT, INQUIRY INTO THE LEGISLATIVE HISTORY IS OF CAPITAL
IMPORTANCE.  THAT HISTORY, INSTEAD OF BEING "WHOLLY AMBIGUOUS" AND
FURNISHING A "DUBIOUS BASIS" FOR CONFLICTING INFERENCES, SEEMS TO ME TO
BE LETTER-CLEAR. 

THE PRESIDENTIAL MESSAGE URGING ENACTMENT OF THIS LEGISLATION STATES
TWO OBJECTS:  "TO REDUCE THE LAG IN THE PURCHASING POWER OF INDUSTRIAL
WORKERS" AND TO PUT AN END TO "THE EXISTENCE OF CHILD LABOR."  BOTH
PURPOSES WERE TO BE ACCOMPLISHED "WITHOUT CREATING ECONOMIC
DISLOCATION."  FN1 PURSUANT TO THIS RECOMMENDATION, SENATE BILL NO.
2475 WAS INTRODUCED AND A SIMILAR BILL, H.R. 7200, WAS INTRODUCED IN
THE HOUSE.  JOINT HEARINGS WERE HELD BY SENATE AND HOUSE COMMITTEES. 
SENATE BILL NO. 2475 WAS REPORTED TO THE SENATE.  THOSE IN CHARGE OF IT
ON THE FLOOR REPEATEDLY STATED THAT THE PURPOSE WAS TO LIMIT THE BILL
STRICTLY TO MINIMUM WAGES, MAXIMUM HOURS, AND CHILD LABOR.  THERE IS NO
QUESTION THAT MANY EXPERTS IN THE FIELD FELT THAT THE PROHIBITION OF
HOME WORK WAS ESSENTIAL TO THE ACCOMPLISHMENT OF THE OBJECTIVE OF THE
LEGISLATION.  IN THE JOINT HEARINGS, THE SECRETARY OF LABOR TESTIFIED
THAT POWER SHOULD BE GIVEN TO THE ADMINISTRATIVE AUTHORITY TO "PROHIBIT
ENTIRELY THE USE OF INDUSTRIAL HOME WORK."  FN2  IN THIS CONNECTION THE
SECRETARY ALSO ADVISED THAT THE ADMINISTRATIVE POWERS TO BE GRANTED
SHOULD BE CAREFULLY DEFINED BY THE CONGRESS SO THAT THE ACT WOULD
CLEARLY STATE THEM.  FN3  THE QUESTION OF HOME WORK WAS AGAIN BROACHED
AT THE HEARINGS AT VARIOUS POINTS.  NOTWITHSTANDING THIS, THE BILL, AS
REPORTED TO THE SENATE, CONTAINED NO PROVISION FOR THE PROHIBITION OF
HOME WORK.  THE MEASURE WAS DEBATED AT LENGTH IN THAT BODY.  AS IT THEN
STOOD, SEC. 9(6), DEALING WITH ADMINISTRATIVE ORDERS, WHICH BECAME SEC.
8(F) IN THE BILL AS ENACTED, PROVIDED THAT AN ORDER MIGHT CONTAIN TERMS
AND CONDITIONS THE ADMINISTRATIVE AUTHORITY SHOULD FIND NECESSARY TO
CARRY OUT THE PURPOSES OF THE ORDER TO PREVENT CIRCUMVENTION OR
EVASION, OR TO "SAFEGUARD THE FAIR LABOR STANDARDS THEREIN
ESTABLISHED."  IT WILL BE SEEN THAT THIS LANGUAGE IS NOT MATERIALLY
DIFFERENT IN MEANING FROM THAT FINALLY EMBODIED IN SEC. 8(F).  AN
AMENDMENT WAS PROPOSED FROM THE FLOOR TO ADD THE WORDS "INCLUDING THE
RESTRICTION OR PROHIBITION OF INDUSTRIAL HOME WORK" AND WAS AGREED TO. 

IN ORDER TO EXPEDITE THE ADOPTION OF THE LEGISLATION, THE HOUSE
COMMITTEE LIMITED ITS CONSIDERATION TO THE BILL PASSED BY THE SENATE
AND REPORTED IT FAVORABLY WITH AMENDMENTS.  WITHOUT DETAILING THE HOUSE
PROCEEDINGS, IT IS ENOUGH TO SAY THAT ULTIMATELY A BILL WAS PRESENTED
LARGELY EMBODYING THE PROVISIONS OF SENATE BILL NO. 2475 BUT CREATING
AN ADMINISTRATOR IN LIEU OF A BOARD.  SECTION 9(6), WHICH RELATED TO
WAGE ORDERS, CONTAINED THE SAME PROVISIONS RESPECTING PROHIBITION OF
HOME WORK AS THE SENATE BILL.  FN4 

THE OBJECTIONS TO THE SENATE BILL IN THE HOUSE WERE SUCH THAT A NEW
MEASURE WAS REPORTED ESTABLISHING FIXED MINIMUM WAGES AND MAXIMUM HOURS
AND GRANTING THE SECRETARY OF LABOR ONLY THE POWER TO DECLARE THAT A
PARTICULAR INDUSTRY WAS "AN INDUSTRY AFFECTING COMMERCE" AND SO SUBJECT
TO THE ACT.  IT CONTAINED NO PROVISION FOR ADMINISTRATIVE ORDERS. 
DURING DEBATE ON THIS PROPOSED BILL A SUBSTITUTE WAS PRESENTED
CONTAINING A SECTION RELATING TO WAGE ORDERS, WITH PROVISIONS
RESPECTING HOME WORK THE SAME AS WERE CONTAINED IN THE SENATE BILL AS
PASSED AND IN THE SUBSTITUTE THERETOFORE OFFERED TO THE HOUSE.  THE
BILL THUS OFFERED WAS REJECTED AND THE NEWLY REPORTED HOUSE BILL WAS
PASSED.  CONFEREES WERE APPOINTED AMONGST WHOM WERE THE SENATOR WHO HAD
FIRST PROPOSED THE AMENDMENT RESPECTING ORDERS PROHIBITING HOME WORK
AND TWO OF THE REPRESENTATIVES WHO HAD PRESENTED BILLS CONTAINING
SIMILAR PROVISIONS.  THE CONFERENCE COMMITTEE DELIBERATED FOR A MATTER
OF TWELVE DAYS AND EVIDENTLY GAVE THE MOST METICULOUS CARE TO EACH
MEASURE.  THE CONFERENCE REPORT SHOWS THAT THE COMMITTEE ADOPTED THE
THEORY OF THE HOUSE BILL FIXING DEFINITE MINIMUM STANDARD WAGES TO STEP
UP PERIODICALLY IN THE FUTURE AND ALSO, AS RESPECTS INDUSTRY COMMITTEES
AND INTERIM ORDERS BASED ON INDUSTRY COMMITTEES' REPORTS, ADOPTED THE
MORE FLEXIBLE SYSTEM EMBODIED IN THE SENATE BILL. 

IT IS CLEAR THAT IN REDRAFTING SEC. 8(F), WHICH WAS SEC. 9(6) OF THE
SENATE BILL, THE CONFEREES CONSCIOUSLY AND DELIBERATELY REJECTED THE
CLAUSE "INCLUDING THE RESTRICTION OR PROHIBITION OF INDUSTRIAL HOME
WORK OR OF SUCH OTHER ACTS OR PRACTICES."  THE CONFERENCE REPORT WAS
ACCEPTED, THE BILL PASSED BOTH HOUSES, AND WAS SIGNED BY THE
PRESIDENT. 

THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR RECOGNIZED THAT
IT HAD NO POWER TO ABOLISH HOME WORK.  IN ITS FIRST ANNUAL REPORT, THAT
DIVISION STATED (P. 14) THAT IT WAS TREATING HOME WORKERS AS EMPLOYES
AND NOT AS INDEPENDENT CONTRACTORS.  IN THE SAME REPORT (P. 31) THE
DIVISION WENT INTO DETAIL WITH RESPECT TO REGULATIONS FOR RECORD
KEEPING IN RESPECT OF HOME WORK.  AT PAGE 46, THE DIVISION SAID:  "A
DIFFICULT PROBLEM WHICH HAS REQUIRED THE USE OF SPECIAL INSPECTORS AND
SPECIAL TECHNIQUES IS THAT OF INDUSTRIAL HOMEWORK.  IT HAS BEEN
NECESSARY TO MAKE ELABORATE AND TIME-CONSUMING INVESTIGATIONS AT THE
ESTABLISHMENT OF THE EMPLOYER AND IN THE HOMES OF THE WORKERS."  THAT
DIVISION COOPERATED IN THE DRAFTING OF A BILL (H.R. 5435)  FN5
INTRODUCED BY REPRESENTATIVE NORTON OF THE LABOR COMMITTEE, WHICH
PROVIDED, INTER ALIA:  "THE ADMINISTRATOR SHALL HAVE POWER TO MAKE,
ISSUE, AMEND, AND RESCIND SUCH REGULATIONS AND ORDERS AS ARE NECESSARY
OR APPROPRIATE TO CARRY OUT ANY OF THE PROVISIONS OF THIS ACT.  WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, SUCH REGULATIONS AND ORDERS
MAY  ...  MAKE SPECIAL PROVISION WITH RESPECT TO, INCLUDING THE
RESTRICTION OF, HOME WORK SUBJECT TO THIS ACT TO THE EXTENT NECESSARY
TO SAFEGUARD THE MINIMUM STANDARDS PROVIDED IN THIS ACT OR IN ANY
REGULATION OR ORDER ISSUED PURSUANT THERETO, ..."  THE PROPOSED
AMENDMENT WAS DEBATED AT LENGTH AND WAS DEFEATED.  WITH RESPECT TO IT
REPRESENTATIVE NORTON SAID:  FN6 

"I AM SURE THAT BUSINESS WOULD BE LESS JITTERY ABOUT THIS LAW IF THE
ADMINISTRATOR HAD THE RIGHT TO DEFINE THE APPLICATION OF THE LAW. 
WITHOUT THIS AMENDMENT HE MAY NOT DO SO AND SOME BUSINESS HAS SUFFERED
AS A RESULT.  I BELIEVE THAT HE FURTHER NEEDS THE POWER TO DEFINE
TECHNICAL AND TRADE TERMS USED IN THE ACT AND THE POWER TO MAKE SPECIAL
PROVISIONS WITH RESPECT TO INDUSTRIAL HOME WORK AND MAKE SPECIAL
PROVISION FOR CONSTANT-WAGE PLANS CONSISTENT WITH SECTION 7 RELATING TO
HOURS OF WORK.  HOME WORK HAS LONG BEEN A BLOT ON THE ECONOMIC PICTURE
OF THIS COUNTRY, AND I REGRET TO SAY THAT IN SOME CASES EMPLOYERS HAVE
RESORTED TO THIS MEANS OF EMPLOYMENT TO ESCAPE THE PROVISIONS OF THIS
LAW." 

AGAIN SHE STATED TO THE HOUSE:  FN7 

"...  WE ARE PROPOSING IN SECTION 4 OF H.R. 5435 TO AUTHORIZE THE
ADMINISTRATOR TO MAKE RULES AND REGULATIONS TO CARRY OUT ANY OF THE
PROVISIONS OF THE ACT.  THIS SECTION WILL ALSO GIVE HIM THE RIGHT TO
DEFINE TERMS USED IN THE ACT AND MAKE SPECIAL PROVISIONS WITH RESPECT
TO INDUSTRIAL HOME WORK. 

"AS THE ACT IS NOW WRITTEN IT IS EXTREMELY DOUBTFUL WHETHER THE WAGE
AND HOUR STANDARDS WHICH IT ESTABLISHES CAN BE ENFORCED AS TO
INDUSTRIAL HOME WORKERS.  UNDER PRESENT PRACTICE IN INDUSTRIAL HOME
WORK INDUSTRIES, THE ADMINISTRATOR IS UNABLE TO SECURE PROPER RECORDS
ON WAGES AND HOURS OF HOME WORKERS.  BUSINESS CONCERNS RELYING ON HOME
WORK FOR THEIR LABOR DO NOT ORDINARILY DEAL DIRECTLY WITH THE HOME
WORKERS BUT TURN OVER THE GOODS OR ARTICLES ON WHICH THE WORK IS TO BE
DONE TO CONTRACTORS WHO EMPLOY THE HOME WORKERS.  IF TIME PERMITTED, I
COULD GIVE YOU CONCRETE EXAMPLES OF CRUELTY IN THIS FIELD.  SECTION 4
OF THE AMENDMENTS WOULD GIVE THE ADMINISTRATOR THE NECESSARY AUTHORITY
TO COPE WITH THIS SITUATION." 

IN THE ANNUAL REPORT OF THE WAGE AND HOUR DIVISION FOR 1940
INDUSTRIAL HOME WORK WAS DISCUSSED AT PAGE 89 AND STATEMENTS MADE AS TO
THE REQUIREMENTS OF RECORD KEEPING IN RESPECT OF IT. 

AFTER THE WAGE AND HOUR ACT HAD BECOME LAW IT DEVELOPED THAT IF THE
PRESCRIBED MINIMUM HOURLY WAGES WERE ENFORCED IN PUERTO RICO CERTAIN
INDUSTRIES THERE, WHICH CONSISTED ALMOST ENTIRELY OF HOME WORK, WOULD
BE DESTROYED.  IT WAS BELIEVED THAT THE ONLY RELIEF WHICH WOULD CORRECT
THE SITUATION WOULD BE TO AMEND THE STATUTE TO ABROGATE THE FIXED
MINIMA NAMED IN SEC. 6 TO PROVIDE FOR AN INDUSTRY COMMITTEE TO FIX
LOWER STANDARD WAGES FOR INDUSTRIES CONSISTING LARGELY OF HOME WORKERS
IN THE ISLAND.  SUCH MINIMA WOULD BE RECOMMENDED BY AN INDUSTRY
COMMITTEE AND IMPLEMENTED BY ORDERS OF THE ADMINISTRATOR.  FN8  THE
AMENDMENT WAS ADOPTED IN 1940.  FAR FROM INDICATING ANY THOUGHT ON THE
PART OF CONGRESS OR THE DIVISION THAT THE ADMINISTRATOR WAS EMPOWERED
TO BAN HOME WORK, THIS LEGISLATION, TAKEN IN CONNECTION WITH THE DEFEAT
OF H.R. 5435, INDICATES QUITE CLEARLY THAT NO ONE CONCERNED EITHER IN
THE PASSAGE OR THE ADMINISTRATION OF THE LAW HAD ANY NOTION THAT THE
ADMINISTRATOR WAS AUTHORIZED TO DEAL WITH THE ECONOMIC PROBLEM INVOLVED
IN HOME WORK. 

A SECTION OF THE WAGE AND HOUR DIVISION'S REPORT FOR 1940 CONTAINED A
DISCUSSION OF ENFORCEMENT OF THE ACT WITH RESPECT TO HOME WORK, WITHOUT
ANY SUGGESTION THAT THE ADMINISTRATOR COULD DEAL WITH IT BY ABOLISHING
IT.  (P. 89) 

IN THE REPORT FOR 1941 THE DIVISION, FOR THE FIRST TIME, SUGGESTED
THAT THE ADMINISTRATOR HAD BEEN CONSIDERING, IN CONNECTION WITH WAGE
ORDERS, THE QUESTION:  "MUST HOMEWORK BE ABOLISHED AS ONE OF THE TERMS
AND CONDITIONS OF A WAGE ORDER IN ORDER TO SAFEGUARD AND EFFECTUATE
ENFORCEMENT OF THE ORDER."  (P. 64) 

THUS IT APPEARS THAT THE ADMINISTRATOR, HAVING FAILED TO OBTAIN
EXPLICIT AUTHORITY FROM CONGRESS, BEGAN CONTEMPLATING THE EFFORT TO
PERSUADE THE COURTS THAT HE HAD IMPLIED AUTHORITY IN THE PREMISES. 

IN THE REPORT FOR 1942(P. 19) ALL THAT APPEARS IS THE FOLLOWING: 

"THE PROBLEM OF INDUSTRIAL HOMEWORK HAS BEEN ONE OF THE MOST
IMPORTANT ADMINISTRATIVE QUESTIONS SINCE THE INCEPTION OF THE FAIR
LABOR STANDARDS ACT.  FOR THE GUIDANCE OF THE ADMINISTRATOR, THE DATA
WERE PRESENTED FOR THE JEWELRY AND KNITTED OUTERWEAR INDUSTRIES,
SHOWING CONDITIONS OF INDUSTRIAL HOMEWORK, THE AVERAGE EARNINGS OF
HOMEWORKERS, THE DIFFICULTIES OF ENFORCEMENT OF MINIMUM WAGE PROVISIONS
FOR HOMEWORKERS, AND THE METHODS OF EVASION OF MINIMUM WAGE REGULATIONS
BY WORKERS AND EMPLOYERS." 

THOUGH THERE WAS NO DECLARATION OF A PURPOSE TO ENTER THE SORT OF
ORDER NOW IN QUESTION, IT WAS, IN FACT, ENTERED AUGUST 21, 1943. 

IN THE REPORT FOR 1943, FOR THE FIRST TIME, CONGRESS WAS APPRISED OF
ACTION BEING TAKEN (P. 19) THUS: 

"ENFORCEMENT MEASURES ESTABLISHED TO PROTECT THE STANDARDS OF THE ACT
FOR FACTORY EMPLOYEES HAVE NOT BEEN EFFECTIVE IN CONTROLLING HOURS AND
WAGES OF HOMEWORKERS.  THIS FAILURE PROMPTED REGULATION OF INDUSTRIAL
HOMEWORK UNDER WAGE ORDERS IN INDUSTRIES IN WHICH HOMEWORK IS
PREVALENT.  THESE REGULATIONS ARE DESIGNED TO PROTECT FACTORY EMPLOYEES
AGAINST UNFAIR WAGE COMPETITION. 

"INDUSTRIAL HOMEWORK IN THESE INDUSTRIES IS RESTRICTED TO PERSONS WHO
ARE UNABLE TO ADJUST TO FACTORY WORK BECAUSE OF AGE OR PHYSICAL OR
MENTAL DISABILITY OR WHO ARE HOME-BOUND BECAUSE OF AN INVALID IN THE
HOME AND WHO HAVE BEEN ENGAGED IN THE PARTICULAR INDUSTRY PRIOR TO A
SPECIFIED DATE.  THIS LATTER REQUIREMENT MAY BE WAIVED IN UNUSUAL
HARDSHIP CASES.  THESE RESTRICTIONS WERE ADOPTED AFTER SEARCHING
EXAMINATION OF THE SUBJECT WHICH INCLUDED THE OPINIONS AND CONVICTIONS
OF REPRESENTATIVES OF MANAGEMENT AND LABOR.  A TOTAL OF 4,451
APPLICATIONS FOR INDUSTRIAL HOMEWORK CERTIFICATES HAVE BEEN RECEIVED
AND 3,701 CERTIFICATES HAVE BEEN GRANTED." 

BUT, BY THAT TIME, THIS CASE HAD BEEN TAKEN TO THE CIRCUIT COURT OF
APPEALS TO TEST THE VALIDITY OF THE ORDER HERE UNDER REVIEW. 

I WOULD REVERSE THE JUDGMENT. 

FN1  H.R. REPORT NO. 1452, 75TH CONG., 1ST SESS., PP. 6-7. 

FN2  TESTIMONY AT JOINT HEARINGS, PP. 184, 190, 196, 197. 

FN3  IBID., P. 195. 

FN4  82 CONG. REC. 1511-1516, 1572-1577, 1580, 1585. 

FN5  FIRST ANNUAL REPORT, 1939, P. 160. 

FN6  84 CONG. REC. 3498. 

FN7  86 CONG. REC. 5122. 

FN8  SEE ANNUAL REPORT, WAGE AND HOUR DIVISION, 1940, P. 113;
HEARINGS SENATE COMMITTEE ON APPROPRIATIONS, EMERGENCY RELIEF
APPROPRIATION ACT, 1941, P. 3; S.R. 1754, 76TH CONG., 3D SESS., P. 5FF;
H.R. NO. 2186, 76TH CONG., 3D SESS., P. 15. 

THE CHIEF JUSTICE JOINS IN THIS OPINION. 
..END :











CENTRAL STATES CO. V. MUSCATINE, 324 U.S. 138 


NO. 85.  ARGUED DECEMBER 8, 1944.  - DECIDED FEBRUARY 12, 1945.  -
REVERSED. 


1.  THE CIRCUIT COURT OF APPEALS, WHICH, UPON REVIEW OF A VALID RATE
ORDER OF THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT, HAD
IMPOUNDED PENDENTE LITE AMOUNTS PAID TO THE NATURAL GAS COMPANY BY THE
PETITIONER (A LOCAL DISTRIBUTOR) IN EXCESS OF LAWFUL RATES, WAS WITHOUT
JURISDICTION TO ADJUDICATE THE RIGHTS OF CONSUMERS IN THE FUND OR TO
ORDER PAYMENT OF THE FUND TO OFFICERS OF MUNICIPALITIES FOR THE BENEFIT
OF THOSE ULTIMATELY FOUND ENTITLED.  P. 145. 

2.  IN THIS SITUATION, THE MOST THAT THE COURT BELOW SHOULD DO, IN
VIEW OF THE APPARENT CONTROVERSY AS TO THE CONSUMERS' RIGHT TO A REFUND
OF RATES PAID TO THE PETITIONER, IS TO ORDER THAT THE FUND BE HELD FOR
A REASONABLE TIME TO PERMIT INTERESTED PERSONS TO LITIGATE THE ISSUE IN
A TRIBUNAL HAVING JURISDICTION, THE ORDER TO BE CONDITIONED THAT IF
SUCH LITIGATION IS NOT INSTITUTED WITHIN A REASONABLE TIME, AND
PROSECUTED TO FINAL ADJUDICATION, THE FUND SHALL BE PAID OVER TO THE
PETITIONER, AND THAT, IF IT BE ADJUDGED AS A RESULT OF SUCH LITIGATION
THAT THE PETITIONER IS INDEBTED TO ITS CONSUMERS BECAUSE OF THE
REDUCTION OF WHOLESALE RATES IN THIS PROCEEDING, FURTHER APPLICATION
MAY BE MADE TO THE COURT AS TO DISPOSITION OF THE FUND.  P. 145. 

3.  UNITED STATES V. MORGAN, 307 U.S. 183, AND INLAND STEEL CO. V.
UNITED STATES, 306 U.S. 153, DISTINGUISHED.  P. 145. 

CENTRAL STATES ELECTRIC CO. V. CITY OF MUSCATINE ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 322 U.S. 724, TO REVIEW ORDERS OF THE COURT BELOW WHICH
DIRECTED PAYMENT TO CERTAIN MUNICIPAL OFFICERS OF IMPOUNDED FUNDS
CLAIMED BY THE PETITIONER. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE ARE CONCERNED IN THIS CASE WITH THE NATURE AND EXTENT OF THE
POWERS OF A FEDERAL COURT SITTING TO REVIEW AN ORDER OF THE FEDERAL
POWER COMMISSION. 

THE DECISION OF THE COURT BELOW DENIED THE PETITIONER'S APPLICATION
FOR PAYMENT TO IT OF A FUND OF SOME $25,000 DEPOSITED IN COURT, AND
DIRECTED ITS PAYMENT TO PERSONS NOT PRIVIES TO THE TRANSACTION WHICH
CREATED THE FUND.  A DETAILED RECITATION OF EVENTS IS REQUIRED TO SHOW
HOW THE QUESTION ARISES. 

THE FEDERAL POWER COMMISSION (HEREINAFTER CALLED COMMISSION),
PROCEEDING UNDER THE NATURAL GAS ACT,  FN1  ENTERED AN ORDER AGAINST
THE NATURAL GAS PIPELINE COMPANY OF AMERICA (HEREINAFTER CALLED
PIPELINE) REQUIRING IT TO CUT ITS RATES ON NATURAL GAS TO EFFECT AN
ANNUAL REDUCTION IN REVENUE OF NOT LESS THAN $3,750,000, EFFECTIVE
SEPTEMBER 1, 1940. 

THE PETITIONER, CENTRAL STATES ELECTRIC COMPANY (HEREINAFTER
SOMETIMES CALLED CENTRAL), AN IOWA CORPORATION DOING A PUBLIC UTILITY
BUSINESS IN THAT STATE AND ELSEWHERE, PURCHASED GAS AT WHOLESALE FROM
PIPELINE AND DISTRIBUTED IT IN IOWA. 

PIPELINE SOUGHT A REVIEW OF THE COMMISSION'S ACTION BY THE CIRCUIT
COURT OF APPEALS.  THE COURT SET ASIDE THE ORDER BUT, ON CERTIORARI, WE
REVERSED AND SUSTAINED IT.  FN2  AT THE INCEPTION OF THE CASE PIPELINE
HAD PETITIONED FOR A TEMPORARY STAY AND THE COURT BELOW HAD GRANTED A
STAY ON CONDITION THAT A BOND BE FILED TO SECURE THE REFUND TO
PURCHASERS AT WHOLESALE OF THE AMOUNTS RESPECTIVELY DUE THEM IF THE
COURT SHOULD SUSTAIN THE REDUCTION OF RATES ORDERED BY THE COMMISSION. 
ON THE DISSOLUTION OF THE TEMPORARY STAY ANOTHER WAS ENTERED TO
CONTINUE UNTIL THE FURTHER ORDER OF THE COURT, CONDITIONED THAT
PIPELINE SHOULD ENTER A SECOND BOND IN THE SAME TERMS.  THIS WAS DONE. 

WHEN THIS COURT RENDERED ITS JUDGMENT SUSTAINING THE RATE ORDER,
PIPELINE BECAME LIABLE TO MAKE REFUNDS IN ACCORDANCE WITH THE BOND. 
THE COURT BELOW, PRIOR TO THE PAYMENT OF THE AMOUNT DUE UNDER THE BOND,
FILED AN OPINION HOLDING THAT IT WAS ITS DUTY TO TAKE EXCLUSIVE CONTROL
OVER THE REFUND WHEN MADE AND TO DETERMINE THE RIGHTS OF ALL CLAIMANTS
IN THE FUND, AND MADE AN ORDER ENJOINING CLAIMANTS TO THE FUND FROM
FURTHER PROCEEDING IN ANY OTHER COURT.  THIS ACTION WAS PURSUANT TO A
PETITION OF PIPELINE SHOWING THAT SUITS WERE BEING FILED AGAINST IT IN
OTHER COURTS BY THE ULTIMATE CONSUMERS OF THE GAS SOLD BY PIPELINE TO
THE LOCAL DISTRIBUTING COMPANIES AND ALLEGING THAT UNLESS THE COURT
RETAINED JURISDICTION OF THE FUND PIPELINE WOULD BE SUBJECTED TO
NUMEROUS SIMILAR SUITS.  ILLINOIS COMMERCE COMMISSION, IN AN ANSWER,
STATED THAT THE RATES CHARGED BY DISTRIBUTING COMPANIES IN ILLINOIS
WERE FIXED BY IT AND REFLECTED THE PRICES PAID BY DISTRIBUTORS TO
PIPELINE AND THAT THE REFUND, REPRESENTING EXCESSIVE RATES PAID BY
DISTRIBUTORS, HAD BEEN COLLECTED FROM THE ULTIMATE CONSUMERS AND WAS
EQUITABLY DUE THEM.  THE ILLINOIS LOCAL DISTRIBUTORS THEN BEFORE THE
COURT AGREED THAT THE REFUND SHOULD BE RATABLY PAID TO THE ULTIMATE
CONSUMERS. 

CENTRAL WAS NOT A PARTY TO THE PROCEEDING IN THE CIRCUIT COURT OF
APPEALS, BUT, ON JUNE 29, 1942, IT SENT A LETTER TO THE CLERK, IN
RESPONSE TO ONE FROM HIM, ASSERTING THAT THE PORTION OF THE REFUND
REPRESENTING EXCESSIVE RATES PAID BY CENTRAL DURING THE REFUND PERIOD
SHOULD BE REPAID TO IT AND NOT TO THE ULTIMATE CONSUMERS.  JUNE 30,
1942, THE COURT RENDERED AN OPINION IN WHICH IT DISCUSSED THE RELATIVE
RIGHTS AND INTERESTS OF LOCAL DISTRIBUTORS AND ULTIMATE CONSUMERS.  THE
COURT FOUND THAT, SINCE THE RATES CHARGED TO LOCAL CONSUMERS INCLUDED
THE EXCESS CHARGES PAID BY DISTRIBUTORS TO PIPELINE, THE ULTIMATE
CONSUMERS WERE IN EQUITY ENTITLED TO RECEIVE THE REFUND.  JULY 1, 1942,
PIPELINE PAID INTO COURT A SUM REPRESENTING THAT PORTION OF THE RATES
PAID TO IT IN EXCESS OF THE RATE PERMITTED BY THE COMMISSION'S ORDER. 
THE COURT THEREUPON ENTERED AN ORDER TO SHOW CAUSE, WHICH SPECIFIED THE
REFUND PERIOD, DETERMINED THAT THE AMOUNT PAID INTO COURT WAS THE
PROPERTY OF THE ULTIMATE CONSUMERS, AND ALLOCATED THE FUND TO THE
CUSTOMERS OF THE LOCAL DISTRIBUTORS, INCLUDING CENTRAL'S CUSTOMERS (TO
WHOM THERE WAS ALLOCATED $25,708.54), RESERVED JURISDICTION OF THE FUND
FOR THE PROTECTION OF ALL PERSONS HAVING RIGHTS THEREIN, AND DIRECTED
ALL CLAIMANTS TO THE FUND TO SHOW CAUSE WHY THE ORDER SHOULD NOT BE
BINDING ON THEM.  LATER THE COURT ENTERED AN ORDER IN WHICH IT FOUND
THAT CENTRAL HAD RAISED AN ISSUE CONCERNING THE RELATIVE RIGHTS OF
ITSELF AND ITS CUSTOMERS TO THE AMOUNT IN QUESTION.  CENTRAL, WHICH, AS
WE HAVE SAID, HAD NOT BECOME A PARTY TO THE PROCEEDINGS, THEN FILED A
PETITION IN INTERVENTION PRAYING THAT THE SUM BE PAID TO IT, AND LEAVE
TO INTERVENE WAS GRANTED.  CENTRAL'S PETITION SET FORTH THAT IT
PURCHASED NATURAL GAS FROM PIPELINE DURING THE REFUND PERIOD, PURSUANT
TO A CONTRACT; THAT THE SUM IN QUESTION REPRESENTED AMOUNTS PAID BY
CENTRAL DURING THE REFUND PERIOD IN EXCESS OF THE RATES FIXED BY THE
COMMISSION'S ORDER; THAT CENTRAL SOLD MORE THAN 81% OF THE GAS IN
QUESTION WITHOUT PROFIT TO IOWA ELECTRIC COMPANY, WHICH RESOLD THE SAME
TO SOME 2,400 CONSUMERS IN MUSCATINE, IOWA, AND THAT CENTRAL SOLD THE
BALANCE DIRECTLY TO SOME 320 CONSUMERS IN GREENFIELD, IOWA, 597 IN
KNOXVILLE, IOWA, AND 366 IN PELLA, IOWA; THAT LESS THAN 12 1/2% OF THE
GAS SOLD IN KNOXVILLE AND PELLA WAS NATURAL GAS; THAT IOWA ELECTRIC
COMPANY HAD TRANSFERRED ALL ITS RIGHTS IN AND TO THE FUND TO CENTRAL
FOR THE PURPOSE OF THESE PROCEEDINGS; THAT, BY THE LAW OF IOWA, THE
POWER TO FIX RATES FOR GAS SERVICE IS VESTED IN ITS MUNICIPALITIES, AND
THE UTILITY RATES IN THAT STATE ARE NOT REGULATED BY ANY STATE AGENCY
OR COMMISSION; THAT RATES TO CONSUMERS HAD BEEN VOLUNTARILY REDUCED TO
MEET COMPETITIVE CONDITIONS AND THAT SUCH RATES HAD BEEN APPROVED BY
RESOLUTION OF THE COUNCIL OF MUSCATINE; AND THAT, DUE TO CONDITIONS IN
THE COMMUNITIES SERVICED, THE RATES CHARGED CONSUMERS WERE INSUFFICIENT
TO PRODUCE A FAIR RETURN. 

THEREAFTER THE COURT ENTERED AN ORDER DIRECTING THAT THE ATTORNEY
GENERAL OF IOWA AND THE PURCHASERS OF GAS FROM CENTRAL, AND THEIR
RESPECTIVE MUNICIPAL REPRESENTATIVES IN MUSCATINE AND GREENFIELD, BE
NOTIFIED OF CENTRAL'S CLAIM TO THE FUND AND THAT THEY SHOW CAUSE WHY
THE RELIEF SOUGHT BY CENTRAL SHOULD NOT BE GRANTED.  NO SUCH ORDER WAS
MADE WITH RESPECT TO CONSUMERS IN KNOXVILLE AND PELLA NOR TO ANY
OFFICIALS OF THOSE CITIES.  THE CITY OF MUSCATINE AND THE MAYOR OF
GREENFIELD, PURPORTING TO REPRESENT THE CONSUMERS IN THOSE CITIES,
FILED SEPARATE PLEADINGS IN WHICH THEY ASSERTED THAT THE FUND IN
QUESTION BELONGED TO THE CONSUMERS. 

THE COURT, WITHOUT HEARING EVIDENCE, DENIED THE RELIEF PRAYED BY
CENTRAL BY AN ORDER WHICH WAS STATED TO BE "WITHOUT PREJUDICE" TO
CENTRAL'S "MAKING CLAIM OF ADJUSTMENT WITH THE CITIES OF MUSCATINE,
GREENFIELD, KNOXVILLE AND PELLA  ...  OR WITH THE CONSUMERS OF GAS
FURNISHED BY IT IN SAID CITIES."  THE REASON STATED FOR MAKING THE
ORDER WAS THAT THE COURT WAS WITHOUT JURISDICTION TO HEAR CENTRAL'S
CLAIM SINCE IT INVOLVED A DETERMINATION OF "THE REASONABLENESS OF
PETITIONER'S RATES" AND FURTHER SINCE THE COURT HAD PREVIOUSLY RULED
THAT THE REFUND BELONGED TO THE ULTIMATE CONSUMERS.  IN A SEPARATE
ORDER ENTERED THE SAME DAY, THE COURT DIRECTED PAYMENT OF THE SUM IN
QUESTION TO THE TREASURERS OF THE SEVERAL CITIES IN SPECIFIED AMOUNTS. 
IT FIXED THE AMOUNT ALLOCATED TO MUSCATINE AT 81% OF THE FUND,
APPARENTLY RELYING UPON THE ALLEGATION OF THE PETITION THAT MORE THAN
81% OF THE GAS PURCHASED FROM PIPELINE WAS DELIVERED TO CONSUMERS IN
THAT CITY.  IT APPARENTLY FAILED TO GIVE CONSIDERATION TO THE
ALLEGATION THAT LESS THAN 12 1/2% OF THE GAS SOLD IN KNOXVILLE AND
PELLA WAS NATURAL GAS.  THE ORDER RECITED THAT THE FUND BELONGED TO THE
ULTIMATE CONSUMERS AND THAT THE COURT DESIRED TO PAY IT AT THE EARLIEST
POSSIBLE TIME TO "SUCH PARTIES AS ARE ENTITLED TO THE SAME, AND TO
PERMIT OF A DETERMINATION OF SAID RIGHTS BY A COURT OR BODY HAVING
JURISDICTION THEREOF."  THEREAFTER CENTRAL FILED A SUPPLEMENTAL
PETITION SETTING FORTH THAT, EXCEPT FOR THE STAY ORDER, CENTRAL WOULD
HAVE RETAINED THE SUM IN QUESTION; THAT CENTRAL WAS THE ONLY PARTY IN
PRIVITY WITH PIPELINE AND WAS, THEREFORE, ENTITLED TO THE BENEFIT OF
THE RATE REDUCTION, AND THAT THE BOND FILED PURSUANT TO THE COURT'S
ORDER CALLED FOR PAYMENT OF THE REFUND TO PURCHASERS AT WHOLESALE, ONE
OF WHOM WAS CENTRAL.  IT FURTHER ATTACKED THE JURISDICTION OF THE COURT
TO AWARD THE SUM TO CENTRAL'S ULTIMATE CONSUMERS SINCE SUCH AN AWARD
AMOUNTED TO A RETROACTIVE REDUCTION OF LOCAL RATES TO WHICH THE NATURAL
GAS ACT, BY EXPRESS TERMS, DID NOT APPLY, AND, FINALLY, ASSERTED THAT
THE COURT OUGHT NOT TO MAKE THE AWARD BASED ON A CONCLUSION OF FACT
UNSUPPORTED BY ANY EVIDENCE THAT THE BURDEN OF THE EXCESSIVE RATES HAD
BEEN PASSED ON TO THE CONSUMERS WHEREAS THE COURT, AT THE SAME TIME,
DISCLAIMED JURISDICTION TO DETERMINE THE REASONABLENESS OF LOCAL RATES
AND, THEREFORE, REFUSED TO HEAR EVIDENCE OF CENTRAL'S EQUITABLE RIGHT
TO THE FUND.  MUSCATINE AND THE MAYOR OF GREENFIELD RESPONDED.  THE
COURT DENIED THE PETITION WITHOUT HEARING OR ARGUMENT. 

THE COURT BELOW WAS RIGHT IN ITS VIEW THAT AS A FEDERAL COURT IT HAD
NO POWER, AT LEAST IN THE ABSENCE OF FEDERAL LEGISLATION PURPORTING TO
CONFER SUCH POWER UPON IT, TO FIX OR ADJUST CENTRAL'S RATES, THAT BEING
A LEGISLATIVE FUNCTION OF THE STATE OF IOWA.  THIS WOULD BE SO WHERE
THE FUND IN DISPUTE CAME INTO ITS POSSESSION IN A PROCEEDING TO ENJOIN
THE OPERATION OF AN ORDER AFFECTING STATE RATES,  FN3  AND MUST BE
EQUALLY TRUE WHERE THE PROCEEDING WAS ONE TO ENJOIN COLLECTION OF A
RATE FOR INTERSTATE SERVICE.  THIS, BECAUSE THE COURT BELOW HAD NO
POWER AS A COURT OF EQUITY TO FIX RATES, AND AS A FEDERAL COURT HAD NO
POWER TO ADJUDICATE A MATTER WITHIN THE LEGISLATIVE COMPETENCE OF
IOWA.  THE COURT BELOW SO HELD IN THIS CASE, AND HAS DEALT WITH THE
MATTER MORE FULLY AND TO THE SAME EFFECT IN ANOTHER.  FN4 

THE NATURAL GAS ACT CLEARLY DISCLOSES THAT, THOUGH ITS PURPOSE MAY
HAVE BEEN TO PROTECT THE ULTIMATE CONSUMER AT RETAIL, THE MEANS ADOPTED
WAS LIMITED TO THE REGULATION OF SALES IN INTERSTATE COMMERCE AT
WHOLESALE, LEAVING TO THE STATES THE FUNCTION OF REGULATING THE
INTRASTATE DISTRIBUTION AND SALE OF THE COMMODITY.  THAT CONGRESS
INTENDED TO LEAVE INTRASTATE TRANSACTIONS TO STATE REGULATION IS CLEAR,
NOT ONLY FROM THE LANGUAGE OF THE ACT,  FN5  BUT FROM THE EXCEPTIONALLY
EXPLICIT LEGISLATIVE RECORD,  FN6  AND FROM THIS COURT'S DECISIONS. 
FN7 

THE SHOWING MADE BY THE PETITIONER'S PLEADINGS, AND NOT DENIED, IS
THAT IN IOWA RATES ARE SET BY MUNICIPAL ORDINANCE; THAT THE RATES
COLLECTED FROM CONSUMERS DURING THE REFUND PERIOD WERE THE LAWFUL
RATES, SO FIXED; AND THAT THE SUMS IMPOUNDED WERE DEDUCTED FROM THE
PAYMENTS TO PIPELINE BY CENTRAL OUT OF ITS OWN FUNDS.  THE ONLY REPLY
MADE BY THE MUNICIPAL AUTHORITIES IS THAT THE FUND BELONGS TO THE
ULTIMATE CONSUMERS.  WHETHER THIS IS SO, WHETHER UNDER IOWA LAW
REPARATION MAY BE DEMANDED FOR SUMS PAID BY CONSUMERS UNDER A STANDING
RATE, WE DO NOT KNOW.  NOR DO WE KNOW WHO ARE PROPER PARTIES UNDER IOWA
LAW TO ANY PROCEEDING TO DETERMINE THE RELATIVE RIGHTS OF PETITIONER
AND ITS CUSTOMERS.  CERTAINLY THESE ARE QUESTIONS OF IOWA, NOT OF
FEDERAL, LAW. 

WE ARE OF OPINION THAT THE COURT BELOW LACKED JURISDICTION TO
ADJUDICATE THE QUESTION OF THE CONSUMERS' RIGHTS IN THE FUND IN
DISPUTE.  UNITED STATES V. MORGAN, 307 U.S. 183, ON WHICH THE
RESPONDENTS RELY, IS OBVIOUSLY DISTINGUISHABLE.  THERE THE FUND
IMPOUNDED WAS PART OF THE CHARGES PAID TO THE STOCKYARD MERCHANTS BY
PERSONS WHO HAD BEEN CHARGED THE RATES FOUND BY THE SECRETARY OF
AGRICULTURE TO BE EXCESSIVE.  HERE, SINCE THE FUND REPRESENTS A PORTION
OF SUMS PAID BY CENTRAL TO PIPELINE OUT OF CENTRAL'S FUNDS AND PURSUANT
TO CONTRACT WITH PIPELINE, THE MORGAN CASE WOULD BE AUTHORITY FOR
REPAYMENT TO CENTRAL.  THIS IS TRUE ALSO OF INLAND STEEL CO. V. UNITED
STATES, 306 U.S. 153.  MOREOVER, IF CENTRAL HAD PAID PIPELINE THE
EXCESSIVE RATES, THE LATTER COULD NOT HAVE DEFENDED A SUIT BY CENTRAL
TO RECOVER THE EXCESS ON THE GROUND THAT CENTRAL HAD PASSED ON THE
BURDEN TO ITS CUSTOMERS.  FN8 

THE ULTIMATE CONSUMERS' RIGHTS BEING SUCH AS THE LAW OF IOWA AFFORDS,
THERE IS NO REASON FOR THE PAYMENT OF THE FUND TO MUNICIPALITIES OR
MUNICIPAL OFFICERS UNDER A QUASI TRUST FOR THOSE FOUND ULTIMATELY
ENTITLED, THUS PLACING THE BURDEN ON CENTRAL TO PURSUE THE CITIES OR
THEIR OFFICERS FOR ITS RECOVERY.  AN ORDER TO THIS EFFECT IS CERTAINLY
NOT WITHIN THE COURT'S JURISDICTION AS A FEDERAL COURT OF EQUITY.  THE
MOST THE COURT BELOW SHOULD DO, IN VIEW OF THE APPARENT CONTROVERSY AS
TO THE CONSUMERS' RIGHT TO A REFUND OF RATES HERETOFORE PAID TO
CENTRAL, IS TO ORDER THAT THE FUND BE HELD FOR A REASONABLE TIME TO
PERMIT INTERESTED PERSONS TO LITIGATE THE ISSUE IN A TRIBUNAL HAVING
JURISDICTION, THE ORDER TO BE CONDITIONED THAT IF SUCH LITIGATION IS
NOT INSTITUTED WITHIN A REASONABLE TIME, AND PROSECUTED TO FINAL
ADJUDICATION, THE FUND SHALL BE PAID OVER TO CENTRAL, AND THAT IF IT BE
ADJUDGED AS A RESULT OF SUCH LITIGATION THAT CENTRAL IS INDEBTED TO ITS
CONSUMERS BECAUSE OF THE REDUCTION OF WHOLESALE RATES IN THIS
PROCEEDING, FURTHER APPLICATION MAY BE MADE TO THE COURT AS TO ITS
DISPOSITION.    THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR
FURTHER PROCEEDINGS IN CONFORMITY TO THIS OPINION.  SO ORDERED. 

FN1  52 STAT. 821; 15 U.S.C. SEC. 717.    FN2  FEDERAL POWER
COMMISSION V. NATURAL GAS PIPELINE CO., 315 U.S. 575. 

FN3  CENTRAL KENTUCKY NATURAL GAS CO. V. RAILROAD COMMISSION, 290
U.S. 264, 271, 272. 

FN4  NATURAL GAS PIPELINE CO. V. FEDERAL POWER COMMISSION, 141 F.2D
27. 

FN5  SEE, E.G., SEC. 2(8), 15 U.S.C. SEC. 717(A)(8); SEC. 5(A), 15
U.S.C. SEC. 717DA); SEC. 13, 15 U.S.C. SEC. 717L; SEC. 14A, 15 U.S.C.
SEC. 717MA); SEC. 15A, 15 U.S.C. SEC. 717NA); SEC. 17(A), 15 U.S.C.
SEC. 717(P). 

FN6  H.R. NO. 709, 75TH CONG., 1ST SESS., PP. 1-3. 

FN7  PUBLIC UTILITIES COMM'N V. UNITED FUEL GAS CO., 317 U.S. 456,
467; FEDERAL POWER COMM'N V. HOPE NATURAL GAS CO., 320 U.S. 591, 609
610. 

FN8  SOUTHERN PACIFIC CO. V. DARNELL-TAENZER LUMBER CO., 245 U.S.
531. 

MR. JUSTICE BLACK, DISSENTING. 

THE PRIMARY PURPOSE OF CONGRESS IN PASSING THE NATURAL GAS ACT WAS TO
PROTECT ULTIMATE CONSUMERS OF GAS FROM EXCESSIVE PRICES.  FEDERAL POWER
COMMISSION V. HOPE NATURAL GAS CO., 320 U.S. 591, 610, 612.  THE
COURT'S DECISION TODAY DEFEATS THAT CONGRESSIONAL PURPOSE, FOR UNDER
ITS INTERPRETATION OF THE ACT THE PETITIONER, A RETAIL GAS DISTRIBUTOR,
IS AWARDED A WINDFALL,  FN1 AT THE EXPENSE OF THE VERY CONSUMERS THE
ACT WAS DESIGNED TO PROTECT. 

ON SEPTEMBER 23, 1938, A PETITION PRAYING FOR REDUCTION OF THE
WHOLESALE GAS RATES OF THE NATURAL GAS PIPELINE COMPANY WAS FILED WITH
THE FEDERAL POWER COMMISSION.  JULY 23, 1940, THE COMMISSION ORDERED
THE COMPANY TO MAKE REDUCTIONS IN ITS FUTURE RATES.  THE CIRCUIT COURT
OF APPEALS, UPON THE COMPANY'S PETITION, THEN GRANTED A STAY PENDING
LITIGATION.  LATER, IT STAYED ENFORCEMENT OF THE ORDER.  120 F.2D 625. 
AS A CONDITION OF ITS STAY, THE CIRCUIT COURT OF APPEALS REQUIRED THE
COMPANY TO EXECUTE A MILLION DOLLAR BOND RUNNING TO THE FEDERAL POWER
COMMISSION AND THE ILLINOIS COMMERCE COMMISSION.  ON MARCH 16, 1942,
THIS COURT REVERSED THE CAUSE AND SUSTAINED THE COMMISSION'S ORDER. 
315 U.S. 575. 

SUBSEQUENTLY, $6,377,913.57 WAS PAID INTO THE COURT BY THE PIPELINE
COMPANY, THIS BEING THE AMOUNT IT HAD COLLECTED, PENDING THE
LITIGATION, FROM ILLINOIS, NEBRASKA, AND IOWA GAS DISTRIBUTING
COMPANIES, IN EXCESS OF THE RATES FIXED BY THE COMMISSION. 

THE PIPELINE COMPANY, AND ALL OF THE DISTRIBUTING COMPANIES EXCEPT
PETITIONER HERE AND ONE SMALL COMPANY IN NEBRASKA,  FN2  ACQUIESCED IN
THE HOLDING OF THE COURT BELOW THAT THE FUNDS THUS IMPOUNDED PROPERLY
BELONGED TO THE ULTIMATE CONSUMERS, AND SHOULD BE REFUNDED TO THEM. 
ALL OF THIS AMOUNT, $6,377,913.57, EXCEPT FOR THE $25,708.54 NOW
ORDERED BY THIS COURT TO BE PAID TO THE PETITIONER, HAS BEEN
DISTRIBUTED TO THE ULTIMATE CONSUMERS.  FN3 

THE COURT HOLDS THAT THE DISPOSITION OF SUCH FUNDS MUST BE MADE IN
ACCORDANCE WITH STATE LAW AND THAT THE CIRCUIT COURT OF APPEALS WAS
WITHOUT JURISDICTION TO DISPOSE OF THEM AS IT DID.  UNTIL TODAY, THIS
COURT SEEMS NEVER TO HAVE DOUBTED THAT "IT IS A POWER 'INHERENT IN
EVERY COURT OF JUSTICE SO LONG AS IT RETAINS CONTROL OF THE SUBJECT
MATTER AND OF THE PARTIES, TO CORRECT THAT WHICH HAS BEEN WRONGFULLY
DONE BY VIRTUE OF ITS PROCESS'."  UNITED STATES V. MORGAN, 307 U.S.
183, 197.  HERE, CONSUMERS OF GAS HAVE BEEN INJURED BY A FEDERAL COURT
ORDER STAYING THE FEDERAL POWER COMMISSION'S 1940 RATE CUT.  IN 1942,
THIS COURT SUSTAINED THE COMMISSION'S ORDER.  315 U.S. 575.  AT THAT
TIME, THE PIPELINE COMPANY CONTENDED BEFORE THIS COURT THAT IF THE
COMMISSION'S RATE ORDER SHOULD BE SUSTAINED, THE FUND ACCUMULATED AS A
RESULT OF THE STAY SHOULD BE RETAINED BY IT, AND SHOULD NOT BE TURNED
OVER TO THE DISTRIBUTING COMPANIES BECAUSE "THE PURPOSE OF THE RATE
REGULATION IS THE PROTECTION OF CONSUMERS AND  ...  WILL NOT BE
EFFECTUATED BY REFUNDS TO WHOLESALERS" OF THEIR "PROFITS FOR PAST
BUSINESS."  UPON OUR REMAND OF THE CAUSE FOR FURTHER PROCEEDINGS, THE
PIPELINE COMPANY PETITIONED THE COURT BELOW TO TAKE JURISDICTION OF THE
EXCESS FUNDS.  THAT COURT HELD, IN IMPOUNDING THE FUND HERE INVOLVED,
THAT SINCE IT WAS AUTHORIZED BY SECS. 19(B) AND (C) OF THE ACT TO ISSUE
A STAY PENDING REVIEW OF THE COMMISSION'S RATE ORDER, IT HAD A
MANDATORY OBLIGATION AS A COURT OF EQUITY "TO DETERMINE TO WHOM AND IN
WHAT AMOUNTS THE DISTRIBUTION SHALL BE MADE."  THIS HOLDING WAS IN
ACCORD WITH "THE GOVERNING PRINCIPLE THAT IT IS THE DUTY OF A COURT OF
EQUITY GRANTING INJUNCTIVE RELIEF TO DO SO UPON CONDITIONS THAT WILL
PROTECT ALL - INCLUDING THE PUBLIC - WHOSE INTERESTS THE INJUNCTION MAY
AFFECT."  INLAND STEEL CO. V. UNITED STATES, 306 U.S. 153, 157. 

THE INJURY TO THE CONSUMERS HERE DID NOT STEM FROM STATE LAW OR THE
ACTION OF A STATE COURT; IT WAS THE DIRECT RESULT OF STAY ORDERS MADE
BY A FEDERAL COURT.  THESE ORDERS, WHICH PERMITTED THE PIPELINE COMPANY
TO CONTINUE TO CHARGE RATES WHICH THE COMMISSION HAD DETERMINED TO BE
EXCESSIVE, TO THE DETRIMENT OF ULTIMATE CONSUMERS, WERE ISSUED UNDER
THE PROVISIONS OF THE NATURAL GAS ACT.  THE INJURIES HERE WERE
THEREFORE OCCASIONED BY THE APPLICATION OF FEDERAL LAW IN A FEDERAL
COURT, AND RAISED FEDERAL, AND NOT STATE LAW QUESTIONS.  FOR A FEDERAL
COURT TO REMEDY THIS INJURY BY AFFORDING THAT PROTECTION TO CONSUMERS
WHICH THE ACT CONTEMPLATED, CANNOT, IN MY JUDGMENT, BE SAID TO AMOUNT
TO A REGULATION OF LOCAL GAS RATES. 

THE NATURAL GAS ACT CONTEMPLATES THAT FEDERAL REDUCTION OF WHOLESALE
GAS RATES TO DISTRIBUTORS WILL BE REFLECTED IN REDUCTION OF RETAIL
RATES TO THE ULTIMATE CONSUMERS.  INFORMATION BEFORE THE CONGRESS WHEN
IT PASSED THE NATURAL GAS ACT SHOWED THAT A LARGE PERCENTAGE OF THE
RETAIL COST OF GAS WAS ATTRIBUTABLE TO THE WHOLESALE COST.  FN4  THUS
THE WHOLESALE COST IS A CRITICAL ELEMENT IN A STATE PROCEEDING TO
REGULATE RETAIL COST.  AN EFFECTIVE ORDER OF THE FEDERAL POWER
COMMISSION REDUCING WHOLESALE COSTS AFFORDS LOCAL CONSUMERS A BASIS FOR
A CORRESPONDING RETAIL REDUCTION.  BUT A FEDERAL RATE REDUCTION ORDER
CANNOT BE UTILIZED BEFORE STATE REGULATORY AGENCIES WHERE THE FEDERAL
REDUCTION ORDER HAS BEEN STAYED BY A FEDERAL COURT.  THUS, DURING THE
THREE YEARS THAT THE POWER COMMISSION'S RATE REDUCTION WAS HELD IN
ABEYANCE PURSUANT TO THE STAY ORDERS, THE IOWA CONSUMERS WERE DEPRIVED
OF THE OPPORTUNITY TO OBTAIN A REDUCTION OF THEIR RATES FROM THE LOCAL
REGULATORY AGENCIES.  THE CITY OF MUSCATINE, IOWA, PROMPTLY PASSED AN
ORDINANCE REDUCING LOCAL GAS RATES AFTER VACATION OF THE ORDERS STAYING
ENFORCEMENT OF THE POWER COMMISSION'S RATE REDUCTION. 

ULTIMATE CONSUMERS CAN SECURE BENEFITS FROM A FEDERAL RATE REDUCTION
IN TWO WAYS:  (1) BY USING THE ORDER TO GET REDUCED RATES BEFORE THEIR
LOCAL REGULATORY BODIES; (2) BY THE IMPOUNDING OF FUNDS FOR THEIR
BENEFIT IF A JUDICIAL STAY OF THE FEDERAL REDUCTION ORDER IS GRANTED. 
THE STAY DEPRIVED THESE LOCAL CONSUMERS OF A CHANCE TO USE THE
COMMISSION'S ORDER TO OBTAIN A LOCAL RATE REDUCTION.  THE HOLDING OF
THIS COURT PARTIALLY, IF NOT COMPLETELY, DEPRIVES THEM OF THE BENEFITS
OF THE IMPOUNDED FUNDS.  CF. FIRST NATIONAL BANK V. FLERSHEM, 290 U.S.
504, 520. 

TO DENY PETITIONER DISTRIBUTING COMPANY A REFUND OF THE IMPOUNDED
MONIES WOULD IMPOSE NO DEPRIVATION UPON IT.  PETITIONER'S LOCAL RATES
WERE FIXED BY A MUSCATINE CITY ORDINANCE, TO WHICH RATES THE PETITIONER
ALLEGES IT VOLUNTARILY AGREED.  THAT SCHEDULE OF RATES, PETITIONER
ARGUES, WAS "PRESUMPTIVELY REASONABLE."  FN5  PETITIONER ADMITS THAT
IOWA LAW REQUIRES THE WHOLESALE COST OF GAS TO BE ONE OF THE FACTORS
CONSIDERED IN DETERMINING THE REASONABLENESS OF RATES.  FN6  THE
PETITIONER'S RATES MUST THEREFORE BE CONSIDERED REASONABLE ON THE BASIS
OF THE OLD WHOLESALE PRICE OF GAS, AND ANY INCREMENT ABOVE THOSE RATES
IS A "WINDFALL." 

FURTHERMORE, THE PETITIONER SAYS IT WAS FREE UNDER IOWA LAW TO ATTACK
THE RATES AT ANY TIME AS TOO LOW.  THIS IT NEVER DID.  INSTEAD, IT
REFRAINED FROM DOING SO UNTIL THIS COURT HAD SUSTAINED THE COMMISSION'S
ORDER REDUCING WHOLESALE RATES, AND UNTIL THE CIRCUIT COURT OF APPEALS
HAD ADJUDGED THAT THE MONIES BELONGED TO THE CONSUMERS.  NOT UNTIL THEN
DID IT FILE ITS INTERVENTION CLAIM FOR THE IMPOUNDED FUNDS.  THE REASON
FOR THIS DELAY IS NOT DIFFICULT TO FIND.  PETITIONER, IN ARGUING HERE
THAT IT SHOULD GET THIS IMPOUNDED FUND, ASSERTS THAT UNDER IOWA LAW
"MUNICIPALITIES MAY ONLY FIX RATES PROSPECTIVELY."  IOWA CASES CITED BY
THE PETITIONER  FN7  SEEM TO GIVE SOME SUPPORT TO THIS CONTENTION,
ESPECIALLY WHEN CONSIDERED WITH DECISIONS OF THIS COURT DEALING WITH
ANALOGOUS STATUTORY SITUATIONS.  FN8  I AM THEREFORE UNABLE TO SEE MUCH
LIKELIHOOD OF THESE CONSUMERS OBTAINING RELIEF IN THE IOWA STATE COURTS
FOR THE INJURY THEY HAVE SUFFERED AS A RESULT OF THE FEDERAL COURT'S
ACTION IN GRANTING A STAY OF THE FEDERAL POWER COMMISSION'S ORDER. 

IF MY PREVIOUS ANALYSIS IS CORRECT, THE RULE ANNOUNCED BY THE COURT
TODAY MEANS SIMPLY THIS:  SO LONG AS LITIGATION CAN BE KEPT PENDING IN
THE COURTS AS TO THE VALIDITY OF A FEDERAL POWER COMMISSION RATE
REDUCTION ORDER, THE BENEFITS OF THE NATURAL GAS ACT WILL BE SUSPENDED
AS TO ULTIMATE CONSUMERS, AND WILL BE LARGELY, IF NOT EXCLUSIVELY,
RESTRICTED TO RETAIL DISTRIBUTORS.  FN9  THUS, BY A STRANGE QUIRK OF
STATUTORY CONSTRUCTION, THE EFFORT OF CONGRESS TO PROTECT CONSUMERS
FROM EXCESSIVE RATES IS TRANSFORMED, WHERE LITIGATION IS PENDING, INTO
AN ACT WHICH EXPLOITS CONSUMERS AND UNJUSTLY ENRICHES DISTRIBUTING
COMPANIES.  THIS COMPANY HAS ALREADY RECEIVED A REASONABLE COMPENSATION
FOR ITS SERVICES.  IT IS ENTITLED TO NO MORE UNDER IOWA OR FEDERAL
LAW. 

FN1  THE COURT BELOW REFUSED TO CONSTRUE THE NATURAL GAS ACT SO AS TO
MAKE THIS PETITIONER "THE BENEFICIARY OF A WINDFALL, TO WHICH IT
INTENDS TO HOLD ON, ONCE IT CAN GET POSSESSION OF IT." 

FN2  THIS COMPANY SUBSEQUENTLY SETTLED WITH ITS CONSUMERS BY TURNING
OVER TO THEM APPROXIMATELY 70% OF THE FUNDS ALLOCABLE TO ITS
PURCHASES. 

FN3  JUNE 30, 1972, AFTER A NOTICE HAD BEEN ISSUED TO PETITIONER
CENTRAL, THE COURT HELD THAT ALL REFUNDS "BELONG TO THE CONSUMERS, FOR
WHOSE BENEFIT THESE PROCEEDINGS WERE INSTITUTED."  CENTRAL DID NOT
ACTUALLY INTERVENE UNTIL FOURTEEN MONTHS LATER.  WITH REFERENCE TO THIS
DELAY OF CENTRAL'S THE COURT BELOW SAID IN ITS JUNE 30, 1942 ORDER THAT
"NEBRASKA CITY AND ALL OTHER UTILITIES STOOD BY AND ACCEPTED THE
SITUATION AS IT WAS TENDERED BY THE PLEADINGS AND THE PARTIES.  NOW ONE
OR TWO OF THESE UTILITIES LOCATED WHERE NO STATE SUPERVISORY COMMISSION
EXISTS, ARE ENDEAVORING TO SEIZE THE FRUITS OF THE LITIGATION BROUGHT
FOR THE CONSUMERS AND RETAIN THE MONEY FOR THEIR OWN INDIVIDUAL GAIN. 
IT WOULD BE A GROSS TRAVESTY UPON THE PROCEEDINGS, THE OUTCOME, IF THEY
WERE TO SUCCEED.  WITH THEIR EFFORTS IN THIS RESPECT, WE HAVE NO
SYMPATHY."  WITHOUT GOING INTO A NARRATION OF WHAT LATER OCCURRED, I AM
OF OPINION THAT THE COURT RIGHTFULLY DENIED CENTRAL'S INTERVENTION ON
THE GROUND THAT IT HAD LONG SINCE DECIDED THE QUESTION.  THE IMPORTANCE
OF THE RULE ANNOUNCED BY THE COURT, HOWEVER, PROMPTS ME TO DISCUSS IT. 

FN4  SEE FINAL REPORT OF THE FEDERAL TRADE COMMISSION TO THE SENATE,
SEN. DOC. 92, PART 84-A, 70TH CONG., 1ST SESS., PP. 611, 612; CONG.
RECORD, 75TH CONG., 1ST SESS., VOL. 81, PP. 6723, 6725, 6728; HEARINGS
BEFORE THE HOUSE COMMITTEE ON INTERSTATE & FOREIGN COMMERCE, 75TH
CONG., 1ST SESS., ON H.R. 4008, PP. 27, 38-39, 56-57; HEARING ON H.R.
11662, HOUSE SUBCOMMITTEE ON INTERSTATE & FOREIGN COMMERCE, 74TH CONG.,
2D SESS., PP. 25, 34-35, 81. 

FN5  PETITIONER CITES IN SUPPORT OF ITS ARGUMENT, IOWA RAILWAY &
LIGHT CO. V. JONES AUTO CO., 182 IOWA 982, 164 N.W. 780; TOWN OF
WILLIAMS V. IOWA FALLS ELECTRIC CO., 185 IOWA 493, 170 N.W. 815; KNOTTS
V. NOLLEN, 206 IOWA 261, 218 N.W. 563; MAPLETON V. IOWA PUBLIC SERVICE
CO., 209 IOWA 400, 223 N.W. 476. 

FN6  SEE CEDAR RAPIDS GAS CO. V. CEDAR RAPIDS, 144 IOWA 426, 120 N.W.
966, AFF'D 223 U.S. 655. 

FN7  SEE NOTE 5, SUPRA. 

FN8  CF. PUBLIC UTILITIES COMMISSION V. UNITED FUEL GAS CO., 317 U.S.
456; ARIZONA GROCERY CO. V. ATCHISON, T. & S.F.R. CO., 284 U.S. 370,
389. 

FN9  WHEN A RATE SCHEDULE EMBODYING A PROPOSED INCREASE IN WHOLESALE
RATES BECOMES EFFECTIVE, PENDING A DETERMINATION BY THE COMMISSION OF
THE REASONABLENESS OF SUCH INCREASE, THE COMMISSION IS AUTHORIZED TO
REQUIRE APPROPRIATE GUARANTEES BY SEC. 4(E) OF THE ACT.  THE COMMISSION
MAY REQUIRE THE NATURAL GAS COMPANIES  "...  TO FURNISH A BOND, TO BE
APPROVED BY THE COMMISSION, TO REFUND ANY AMOUNTS ORDERED BY THE
COMMISSION, TO KEEP ACCURATE ACCOUNTS IN DETAIL OF ALL AMOUNTS RECEIVED
BY REASON OF SUCH INCREASE, SPECIFYING BY WHOM AND IN WHOSE BEHALF SUCH
AMOUNTS WERE PAID ..."  THIS WOULD APPEAR TO BE BROAD ENOUGH TO PROTECT
CONSUMERS WHERE THE AMOUNTS WERE PAID IN THEIR BEHALF.  SURELY THE ACT
GIVES NO LESS POWER TO A COURT. 

MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE CONCUR IN THIS DISSENT. 

MR. JUSTICE DOUGLAS, DISSENTING. 

I THINK THAT THE CLAIMS TO THE FUND IN POSSESSION OF THE COURT BELOW
ARE TO BE DETERMINED BY STATE LAW.  THE FEDERAL POWER COMMISSION HAS NO
AUTHORITY TO DETERMINE THE RATES WHICH PETITIONER MAY CHARGE IN THESE
IOWA CITIES.  UNDER THE NATURAL GAS ACT THAT IS FOR IOWA AND IOWA ALONE
TO DETERMINE.  PUBLIC UTILITIES COMMISSION V. UNITED FUEL GAS CO., 317
U.S. 456, 467; FEDERAL POWER COMMISSION V. HOPE NATURAL GAS CO., 320
U.S. 591, 610.  IN THAT RESPECT THIS CASE DIFFERS MARKEDLY FROM UNITED
STATES V. MORGAN, 307 U.S. 183.  IF THERE HAD BEEN NO STAY ORDER
ENTERED AND THE INTERSTATE RATE FROM THE PIPELINE COMPANY TO PETITIONER
HAD BEEN REDUCED WHEN THE FEDERAL POWER COMMISSION ENTERED ITS ORDER,
IT STILL WOULD HAVE TAKEN ACTION BY THE LOCAL AUTHORITIES TO REDUCE THE
RATES IN THESE IOWA CITIES.    BUT THE FEDERAL COURT WHICH HAS THIS
FUND HAS CONSIDERABLE DISCRETION IN ITS MANAGEMENT.  UNITED STATES V.
MORGAN, SUPRA.  I FAIL TO SEE HOW IT ABUSED ITS DISCRETION IN HANDING
THE FUND OVER TO THE LOCAL OFFICIALS.  IT IS ONLY FAIR TO ASSUME THAT A
REDUCTION IN THE INTERSTATE RATE WOULD HAVE BEEN FOLLOWED BY A
REDUCTION IN LOCAL RATES.  FN1  THAT INDEED WAS THE PRIMARY OBJECTIVE
OF THE NATURAL GAS ACT.  FEDERAL POWER COMMISSION V. HOPE NATURAL GAS
CO., SUPRA.  WE ARE POINTED TO NO PROVISION OF LOCAL LAW WHICH RAISES
ANY SUBSTANTIAL QUESTION CONCERNING THE POWER OF THE LOCAL AUTHORITIES
TO MAKE A READJUSTMENT OF RATES THROUGH THE DISTRIBUTION OF FUNDS
IMPOUNDED UNDER A STAY ORDER.  FN2  AND THE CLAIM OF PETITIONER THAT
THE LOCAL LAW WOULD PREVENT A REDUCTION IN ITS RATES FOR THE PERIOD
WHILE THE STAY ORDER WAS IN EFFECT IS FAR TOO VAGUE TO ACQUIRE THE
DIGNITY OF A SUBSTANTIAL QUESTION.  FN3  HE WHO MAINTAINS THAT POSITION
HAS THE DISTINCT BURDEN OF OVERCOMING THE PRESUMPTION THAT AS A MATTER
OF LOCAL LAW THE CONSUMERS WERE ENTITLED TO THE BENEFITS OF THIS RATE
REDUCTION.  PETITIONER FAILS TO CARRY THAT BURDEN.  THE RECORD IS VOID
OF ANY CREDIBLE EVIDENCE THAT A REDUCTION IN THE INTERSTATE RATE WOULD
NOT HAVE WARRANTED A REDUCTION IN LOCAL RATES. 

PETITIONER IS ADEQUATELY PROTECTED BY THE DECREE ENTERED BY THE COURT
BELOW.  THAT COURT DID NOT UNDERTAKE FINALLY TO DETERMINE THE RIGHTS OF
THE PARTIES IN THE FUND.  IT HAS TURNED THE FUND OVER TO RESPONDENTS
WITHOUT PREJUDICE TO PETITIONER'S RIGHTS IN IT.  THOSE RIGHTS ARE
DETERMINABLE UNDER IOWA LAW.  THAT PROCEDURE DOES NOT PRECLUDE
PETITIONER FROM ITS DAY IN AN IOWA COURT IF ITS CLAIM TO THE FUND TURNS
OUT TO BE LESS FRIVOLOUS AND MORE SUBSTANTIAL THAN IT APPEARS TO BE.  I
THINK THE COURT BELOW SELECTED THE MOST EQUITABLE AND JUST METHOD OF
RECTIFYING THE INJURY DONE BY ITS STAY ORDER. 

FN1  THE CITY OF MUSCATINE DID IN FACT REDUCE THE RATES AFTER THE
STAY ORDER HAD BEEN VACATED. 

FN2  PETITIONER ASSERTS, AND I ASSUME, THAT UNDER THE IOWA LAW RATES
CAN BE MADE ONLY PROSPECTIVELY.  BUT IT APPEARS FROM TOWN OF WILLIAMS
V. IOWA FALLS ELECTRIC CO., 185 IOWA 493, 500, 170 N.W. 815, THAT THE
IOWA COURTS UNDER THEIR "BALANCE OF CONVENIENCE" RULE WILL IMPOUND
ALLEGED EXCESSIVE AMOUNTS COLLECTED BY A UTILITY COMPANY PENDING THE
OUTCOME OF RATE LITIGATION SO AS TO PROTECT THE RIGHTS BOTH OF THE
UTILITY AND THE CONSUMERS.  IF THE RATE INCREASE IS ULTIMATELY
DISALLOWED, THE IMPOUNDED FUNDS WILL BE RETURNED TO THE CUSTOMERS;
OTHERWISE THEY WILL BE TURNED OVER TO THE COMPANY.  WE ARE POINTED TO
NO AUTHORITY WHICH SUGGESTS THAT IOWA WOULD NOT SANCTION THE USE OF
SUCH A METHOD OF READJUSTMENT UNDER THE CIRCUMSTANCES OF THIS CASE. 

FN3  SO FAR AS APPEARS THE RATES WHICH PETITIONER WAS CHARGING DURING
THE PERIOD OF THE STAY ORDER HAD BEEN VOLUNTARILY PROPOSED BY IT.
..END :















STATE FARM INS. CO. V. DUEL, 324 U.S. 154 


NO. 115.  ARGUED JANUARY 12, 1945.  - DECIDED FEBRUARY 12, 1945.  - 244
WIS. 429, 12 N.W.2D 696, AFFIRMED. 


A STATUTE OF WISCONSIN REQUIRES THAT THE UNEARNED PREMIUM RESERVE OF
EVERY INSURANCE COMPANY DOING BUSINESS WITHIN THE STATE SHALL BE
COMPUTED BY A SPECIFIED PERCENTAGE OF PREMIUMS RECEIVED AND SHALL BE
SHOWN AS A LIABILITY IN THE ANNUAL STATEMENT REQUIRED TO BE FILED.  AS
APPLIED TO THE APPELLANT - A FOREIGN INSURANCE COMPANY WHICH OPERATED
IN SOME STATES ON A MEMBERSHIP FEE PLAN (UNLAWFUL IN WISCONSIN) - THE
STATUTE AS CONSTRUED REQUIRES THAT IN COMPUTING THE RESERVE THERE BE
INCLUDED MEMBERSHIP FEES AS WELL AS PREMIUMS RECEIVED IN ALL STATES. 
FOR FAILURE TO COMPLY WITH THE STATUTE, APPELLANT WAS DENIED A LICENSE
TO DO BUSINESS WITHIN THE STATE.  HELD: 

1.  THE STATUTE DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  P. 157. 

(A)  THE RESERVE REQUIREMENT WAS RELEVANT TO THE FINANCIAL STABILITY
OF INSURANCE COMPANIES DOING BUSINESS WITHIN THE STATE, AND WAS
THEREFORE WITHIN THE POWER OF THE STATE FOR THE PROTECTION OF ITS
CITIZENS.  P. 158. 

(B)  THE DUE PROCESS CLAUSE DOES NOT DEMAND UNIFORMITY IN THE
REQUIREMENTS OF THE STATES WITH RESPECT TO FINANCIAL STATEMENTS OF
COMPANIES DOING A MULTI-STATE BUSINESS.  P. 159. 

(C)  THE STATUTE DOES NOT REGULATE OUT-OF-STATE ACTIVITIES.  P. 159. 

2.  THE STATUTE DOES NOT VIOLATE THE FULL FAITH AND CREDIT CLAUSE OF
THE CONSTITUTION.  P. 159. 

(A)  THAT THE STATE OF INCORPORATION DOES NOT TREAT MEMBERSHIP FEES
AS PREMIUMS DOES NOT PRECLUDE WISCONSIN'S DOING SO.  P. 159. 

(B)  THE FULL FAITH AND CREDIT CLAUSE DOES NOT BAR A STATE FROM
IMPOSING STRICTER FINANCIAL STANDARDS FOR CORPORATIONS DOING BUSINESS
WITHIN ITS BORDERS THAN ARE IMPOSED BY THE STATE OF INCORPORATION.  P.
159. 

(C)  THE APPELLANT, CHALLENGING THE POWER OF WISCONSIN TO ENFORCE ITS
OWN STATUTES IN ITS OWN COURTS, DID NOT MEET THE BURDEN OF SHOWING THAT
THE INTERESTS OF THE STATE OF INCORPORATION WERE SUPERIOR.  P. 160. 

3.  AS TO THE APPELLANT'S CONTENTION THAT THE STATUTE AS CONSTRUED
AND APPLIED VIOLATES THE COMMERCE CLAUSE OF THE CONSTITUTION - WHICH
QUESTION WAS NOT RAISED OR PASSED UPON BELOW, BUT EMERGED AFTER THIS
COURT'S DECISION IN UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSN.,
322 U.S. 533 - IT APPEARS THAT THE APPELLANT IS NOT FORECLOSED UNDER
WISCONSIN PROCEDURE FROM OBTAINING A DETERMINATION OF THAT QUESTION IN
THE WISCONSIN COURTS, EITHER IN THE PRESENT SUITS OR IN ANOTHER PENDING
PROCEEDING, SO IT IS NOT NECESSARY TO VACATE THE JUDGMENT BELOW IN
ORDER THAT THE APPELLANT MAY HAVE AN OPPORTUNITY TO OBTAIN THE RULING. 
PP. 160, 163. 

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. V. DUEL, COMMISSIONER OF
INSURANCE. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

APPEAL FROM A JUDGMENT SUSTAINING THE CONSTITUTIONALITY OF A STATE
STATUTE AS CONSTRUED AND APPLIED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 344(A) FROM THE JUDGMENT OF THE WISCONSIN SUPREME COURT WHICH
SUSTAINED THE CONSTITUTIONALITY AS CONSTRUED AND APPLIED TO APPELLANT
OF SEC. 201.18 OF THE WISCONSIN STATUTES, 1943.  244 WIS. 429, 12
N.W.2D 696. 

SEC. 201.18 READS AS FOLLOWS: 

"RESERVES, BASIS FOR.  (1)  THE UNEARNED PREMIUM OR REINSURANCE
RESERVE FOR EVERY INSURANCE COMPANY WHEN NO OTHER STATUTORY PROVISION
IS MADE THEREFOR, SHALL BE COMPUTED BY THE COMMISSIONER BY SETTING UP
FIFTY PER CENT OF THE PREMIUMS RECEIVED ON ALL RISKS THAT HAVE ONE YEAR
OR LESS TO RUN, AND PRO RATA OF ALL PREMIUMS ON RISKS THAT HAVE MORE
THAN ONE YEAR TO RUN.  IN THE CASE OF PERPETUAL RISKS OR POLICIES, THE
WHOLE AMOUNT OF PREMIUM PAID SHALL BE SET UP AS A RESERVE.  EVERY SUCH
COMPANY SHALL SHOW ITS RESERVE, COMPUTED UPON THIS BASIS, AS A
LIABILITY IN THE ANNUAL STATEMENT REQUIRED BY SECTION 201.50. 

"(2)  WHERE NO OTHER PROVISION IS MADE THEREFOR BY LAW, THE RESERVES
OF ANY INSURANCE COMPANY SHALL BE CALCULATED UPON SUCH BASIS, METHOD
AND PLAN AS SHALL FULLY PROVIDE FOR ALL LIABILITIES, AND ANY BASIS,
METHOD AND PLAN FIXED BY THE ORDER OF THE COMMISSIONER SHALL BE PRIMA
FACIE JUST, REASONABLE AND PROPER." 

THE INSURANCE COMMISSIONER OF WISCONSIN REFUSED APPELLANT A LICENSE
IN 1942 AND ALSO IN 1943 FOR FAILURE TO COMPLY WITH THAT PROVISION. 
APPELLANT ACCORDINGLY BROUGHT SUITS TO ENJOIN THE COMMISSIONER FROM
INTERFERING WITH ITS BUSINESS AND TO REQUIRE HIM TO ISSUE IT A LICENSE
TO DO BUSINESS IN THE STATE FOR THE YEARS IN QUESTION.  THE FACTS MAY
BE BRIEFLY STATED. 

APPELLANT IS AN ILLINOIS CORPORATION DOING BUSINESS IN MANY STATES. 
IT STARTED DOING BUSINESS IN WISCONSIN IN 1939.  IT WRITES VARIOUS
FORMS OF AUTOMOBILE INSURANCE ON THE MUTUAL PLAN.  WHEN IT WRITES A
POLICY FOR A NEW CUSTOMER, IT CHARGES HIM A MEMBERSHIP FEE IN ADDITION
TO A PREMIUM.  THE MEMBERSHIP FEE IS NOT RETURNABLE BUT ENTITLES THE
INSURED TO INSURE ONE AUTOMOBILE SO LONG AS HE REMAINS A DESIRABLE RISK
AND SO LONG AS THE COMPANY CONTINUES TO WRITE SUCH COVERAGE.  IT IS
SAID THAT THE MEMBERSHIP FEE GIVES A LIFE OPTION TO THE INSURED TO
PURCHASE INSURANCE AT A SAVING OF FROM TWENTY TO THIRTY-FIVE PER CENT
OF THE USUAL COST.  APPELLANT HAS CONTENDED THAT THE MEMBERSHIP FEES
ARE NO PART OF THE PREMIUMS, FURNISH NO INSURANCE PROTECTION, AND
MERELY REIMBURSE IT FOR THE EXPENSE OF OBTAINING THE NEW BUSINESS. 
WISCONSIN TOOK A DIFFERENT VIEW.  THE COMMISSIONER REFUSED RENEWAL OF
APPELLANT'S LICENSE FOR THE YEARS ENDING MAY 1, 1940, AND MAY 1, 1941. 
LITIGATION FOLLOWED WHICH RESULTED IN THE DECISION OF DUEL V. STATE
FARM MUTUAL AUTOMOBILE INS. CO., 240 WIS. 161, 1 N.W.2D 887.  THE
WISCONSIN SUPREME COURT HELD AS A MATTER OF LAW THAT THE MEMBERSHIP
FEES WERE PART OF APPELLANT'S PREMIUMS AND THAT 50 PER CENT OF THEM
MUST BE INCLUDED IN THE RESERVE REQUIRED BY SEC. 201.18.  THEREUPON
APPELLANT ADOPTED AND SUBMITTED TO THE COMMISSIONER A NEW SCHEME FOR
DOING BUSINESS IN WISCONSIN.  THE PLAN WAS TO ABANDON THE MEMBERSHIP
FEE IN WISCONSIN, TO REQUIRE NONE OF ITS WISCONSIN POLICYHOLDERS, AND
TO DO BUSINESS IN WISCONSIN ON A LEVEL PREMIUM BASIS.  THE RESULT WAS
THAT THE PREMIUMS REQUIRED TO BE PAID IN WISCONSIN WERE 27 PER CENT
HIGHER THAN THOSE REQUIRED IN STATES WHICH CONSTRUED PREMIUMS AS NOT
INCLUDING MEMBERSHIP FEES.  THE COMMISSIONER REFUSED TO GRANT APPELLANT
THE LICENSES FOR THESE LATER YEARS BECAUSE ITS RESERVE REQUIRED BY SEC.
201.18 DID NOT INCLUDE 50 PER CENT OF THE MEMBERSHIP FEES OBTAINED ON
BUSINESS WRITTEN IN OTHER STATES.  THE PRESENT LITIGATION ENSUED.  THE
WISCONSIN SUPREME COURT SUSTAINED THE COMMISSIONER, HOLDING (1) THAT
SEC. 201.18 REQUIRED A RESERVE WHICH COVERED THE OVER-ALL LIABILITY OF
THE APPELLANT AND (2) THAT SEC. 201.18 AS CONSTRUED AND APPLIED DID NOT
CONTRAVENE APPELLANT'S CONSTITUTIONAL RIGHTS. 

OF THE THREE CONSTITUTIONAL QUESTIONS ARGUED HERE TWO WERE RAISED
BELOW.  THEY ARE THAT THE STATUTE VIOLATES (1) THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT AND (2) THE FULL FAITH AND CREDIT PROVISION
OF ART. IV, SEC. 1.  WE THINK NEITHER OF THE TWO HAS MERIT. 

I. SO FAR AS DUE PROCESS OF LAW IS CONCERNED, THIS CASE IS GOVERNED
BY THE PRINCIPLES ANNOUNCED IN OSBORN V. OZLIN, 310 U.S. 53, AND
HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313.  IN OSBORN V. OZLIN,
SUPRA, P. 62, WE STATED THAT "THE MERE FACT THAT STATE ACTION MAY HAVE
REPERCUSSIONS BEYOND STATE LINES IS OF NO JUDICIAL SIGNIFICANCE SO LONG
AS THE ACTION IS NOT WITHIN THAT DOMAIN WHICH THE CONSTITUTION
FORBIDS."  WE SUSTAINED IN THAT CASE VIRGINIA LEGISLATION WHICH FORBADE
A LICENSED COMPANY TO WRITE INSURANCE IN VIRGINIA EXCEPT THROUGH A
RESIDENT AGENT AND WHICH PROVIDED THAT THE RESIDENT AGENT COULD NOT
RETAIN LESS THAN ONE-HALF OF THE CUSTOMARY COMMISSION EVEN THOUGH THE
BUSINESS ORIGINATED WITH AN OUT-OF-STATE BROKER, THE RESIDENT AGENT
RENDERING ONLY A PERFUNCTORY SERVICE.  WE HELD THAT BY SUCH MEASURES
VIRGINIA WAS SEEKING TO PROTECT THE INTERESTS OF HER CITIZENS, NOT TO
PROHIBIT THE MAKING OF CONTRACTS BEYOND HER BORDERS.  IN HOOPESTON
CANNING CO. V. CULLEN, SUPRA, WE SUSTAINED PROVISIONS OF THE NEW YORK
INSURANCE LAW AS APPLIED TO RECIPROCAL INSURANCE ASSOCIATIONS LICENSED
TO DO BUSINESS IN NEW YORK BUT WITH HEADQUARTERS IN ILLINOIS.  THE
REGULATIONS WHICH NEW YORK HAD IMPOSED INCLUDED STIPULATED OPERATING
RESERVES FOR PAYMENT OF LOSSES, A CONTINGENT LIABILITY OF SUBSCRIBERS
OF NOT LESS THAN ONE NOR MORE THAN TEN TIMES THE AMOUNT OF THE ANNUAL
PREMIUM EXPRESSED IN THE CONTRACT, AND A REQUIREMENT FOR THE
MAINTENANCE OF AN UNIMPAIRED SURPLUS.  WE SAID, "NEITHER NEW YORK NOR
ILLINOIS LOSES THE POWER TO PROTECT THE INTERESTS OF ITS CITIZENS
BECAUSE THESE ASSOCIATIONS CARRY ON ACTIVITIES IN BOTH PLACES....  WE
THINK THE REGULATIONS THEMSELVES, SINCE THEY ARE AIMED AT THE
PROTECTION OF THE SOLVENCY OF THE RECIPROCALS OR AT PROMOTING THE
CONVENIENCE WITH WHICH NEW YORK RESIDENTS MAY DO THEIR INSURANCE
BUSINESS, ARE ALL WITHIN THE SCOPE OF STATE POWER."  318 U.S. P. 321. 

WISCONSIN HAS A LEGITIMATE CONCERN WITH THE FINANCIAL SOUNDNESS OF
COMPANIES WRITING INSURANCE CONTRACTS WITH ITS CITIZENS.  THE RESERVE
WHICH IT REQUIRES UNDER SEC. 201.18 IS DESIGNED TO MEASURE THE ENTIRE
FUTURE CONTINGENT LIABILITY ON UNEXPIRED RISKS.  THAT CONTINGENT
LIABILITY IS OBVIOUSLY RELEVANT IN ANY APPRAISAL OF THE FINANCIAL
SOUNDNESS AND STABILITY OF THE COMPANY.  IT IS, TO BE SURE, A
BOOKKEEPING REQUIREMENT.  BUT IT IS MORE THAN THAT:  IT IS ONE OF
WISCONSIN'S MEASURING RODS OF FINANCIAL STABILITY AND STRENGTH.  ANY
FINANCIAL STATEMENT REQUIRED BY WISCONSIN OR ANY OTHER STATE WOULD NEED
REFLECT ALL ASSETS AND LIABILITIES OF THE COMPANY IN THE INTERESTS OF
TRUTH.  THEIR INCLUSION DOES NOT MEAN THAT OUT-OF-STATE ACTIVITIES ARE
BEING REGULATED BY WISCONSIN.  IT ONLY MEANS THAT SOLVENCY OF A MULTI
STATE BUSINESS CAN HARDLY BE DETERMINED ON A SINGLE STATE BASIS. 
ACCOUNTING IS NO EXACT SCIENCE.  THE DUE PROCESS CLAUSE CERTAINLY DOES
NOT REQUIRE UNIFORMITY IN REQUIREMENTS FOR FINANCIAL STATEMENTS OF
COMPANIES DOING A MULTI-STATE BUSINESS.  EACH STATE MUST NECESSARILY
HAVE LEEWAY IN PROVIDING ITS OWN ACCOUNTING STANDARDS FOR COMPANIES
DOING BUSINESS WITHIN ITS BORDERS.  IF A STATE UNDERTOOK TO REGULATE
OUT-OF-STATE ACTIVITIES THROUGH SUCH A REQUIREMENT, DIFFERENT QUESTIONS
WOULD BE POSED.  BUT WE FAIL TO SEE THAT WISCONSIN HAS DONE THAT HERE. 
WE CANNOT SAY THAT THE RESERVE REQUIRED BY WISCONSIN HAS ANY PURPOSE
BUT THE PROTECTION OF ITS OWN CITIZENS.  ITS ADEQUACY OR
APPROPRIATENESS AS A STANDARD FOR QUALIFICATION TO DO BUSINESS IN
WISCONSIN IS THEREFORE A QUESTION FOR WISCONSIN TO DETERMINE. 

II.  LITTLE NEED BE SAID IN REPLY TO THE CONTENTION THAT THE
WISCONSIN STATUTE AS CONSTRUED AND APPLIED VIOLATES THE FULL FAITH AND
CREDIT PROVISION OF THE CONSTITUTION.  APPELLANT'S ARGUMENT COMES DOWN
TO THIS:  ILLINOIS, THE STATE OF INCORPORATION, DOES NOT TREAT THE
MEMBERSHIP FEES AS A PART OF THE PREMIUMS.  THEREFORE, WISCONSIN MAY
NOT DO SO.  THE RESULT WOULD BE THAT NO STATE COULD IMPOSE STRICTER
FINANCIAL STANDARDS FOR FOREIGN CORPORATIONS DOING BUSINESS WITHIN ITS
BORDERS THAN WERE IMPOSED BY THE STATE OF INCORPORATION.  THE FULL
FAITH AND CREDIT PROVISION REQUIRES NO SUCH RESULT.  THIS COURT HAS
RECOGNIZED THAT "IN THE CASE OF STATUTES, THE EXTRA-STATE EFFECT OF
WHICH CONGRESS HAS NOT PRESCRIBED, WHERE THE POLICY OF ONE STATE
STATUTE COMES INTO CONFLICT WITH THAT OF ANOTHER, THE NECESSITY OF SOME
ACCOMMODATION OF THE CONFLICTING INTERESTS OF THE TWO STATES" IS
IMPERATIVE.  ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMMISSION,
294 U.S. 532, 547.  THE FULL FAITH AND CREDIT PROVISION MAY NOT BE USED
TO COMPEL ONE STATE "TO SUBSTITUTE THE STATUTES OF OTHER STATES FOR ITS
OWN STATUTES DEALING WITH A SUBJECT MATTER CONCERNING WHICH IT IS
COMPETENT TO LEGISLATE."  PACIFIC EMPLOYERS INS. CO. V. INDUSTRIAL
ACCIDENT COMMISSION, 306 U.S. 493, 501.  HE WHO CHALLENGES THE POWER OF
ONE STATE TO ENFORCE IN ITS OWN COURTS ITS OWN STATUTES ON SUCH GROUNDS
CARRIES THE BURDEN OF SHOWING THAT "OF THE CONFLICTING INTERESTS
INVOLVED THOSE OF THE FOREIGN STATE ARE SUPERIOR TO THOSE OF THE
FORUM."  ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMMISSION, SUPRA,
P. 548.  THAT BURDEN HAS NOT BEEN CARRIED HERE.  WISCONSIN OBVIOUSLY
HAS A CONSIDERABLE INTEREST IN THE FINANCIAL SOUNDNESS AND STABILITY OF
FOREIGN AS WELL AS DOMESTIC COMPANIES DOING BUSINESS IN WISCONSIN.  IT
IS NOT APPARENT HOW ILLINOIS HAS A SUPERIOR INTEREST.  AS AMONG THE
SEVERAL STATES IT IS WISCONSIN'S PREROGATIVE TO SELECT THE APPROPRIATE
MEANS OF PROTECTING ITS OWN CITIZENS BY ESTABLISHING FINANCIAL
STANDARDS FOR COMPANIES WHICH EXPLOIT THE OPPORTUNITIES WHICH WISCONSIN
AFFORDS. 

III.  APPELLANT'S REMAINING CONTENTION IS THAT THIS WISCONSIN STATUTE
AS CONSTRUED AND APPLIED VIOLATES THE COMMERCE CLAUSE OF THE
CONSTITUTION.  ART. I, SEC. 8.  THIS QUESTION WAS NOT RAISED BELOW.  IT
EMERGED AFTER THE JURISDICTIONAL STATEMENT WAS FILED HERE ON JUNE 1,
1944.  FOR ON JUNE 5, 1944, WE DECIDED UNITED STATES V. SOUTH-EASTERN
UNDERWRITERS ASSN., 322 U.S. 533, HOLDING THAT THE FIRE INSURANCE
BUSINESS WAS COMMERCE WITHIN THE MEANING OF THE COMMERCE CLAUSE AND THE
SHERMAN ACT.  26 STAT. 209, 15 U.S.C. SEC. 1 AND SEC. 2.  SINCE THE
WISCONSIN SUPREME COURT DID NOT PASS ON THE QUESTION, WE MAY NOT DO SO.
MCGOLDRICK V. COMPAGNIE GENERALE TRANSATLANTIQUE, 309 U.S. 430, 434. 
BUT OUR DECISION IN THE SOUTH-EASTERN UNDERWRITERS CASE WAS A
SUPERVENING EVENT ARISING IN THE COURSE OF THIS LITIGATION.  WE DO NOT
THINK APPELLANT SHOULD BE PREJUDICED BY THE FACT THAT THE DECISION CAME
TOO LATE FOR IT TO OBTAIN A RULING BY THE WISCONSIN COURT.  THE
QUESTION IS WHAT DISPOSITION WE SHOULD MAKE OF THIS APPEAL SO THAT IN
THE INTERESTS OF JUSTICE APPELLANT MAY HAVE A HEARING ON THE COMMERCE
POINT. 

A CUSTOMARY PROCEDURE HAS BEEN FOR THE COURT TO VACATE THE JUDGMENT
OF THE STATE COURT WHERE THERE HAS BEEN A SUPERVENING EVENT SINCE ITS
RENDITION WHICH ALTERS THE BASIS UPON WHICH THE JUDGMENT RESTS, AND TO
REMAND THE CASE SO THAT THE COURT FROM WHICH IT CAME MIGHT RECONSIDER
THE QUESTION IN LIGHT OF THE CHANGED CIRCUMSTANCES.  GULF, C. & S.F.R.
CO. V. DENNIS, 224 U.S. 503; MISSOURI V. PUBLIC SERVICE COMMISSION, 273
U.S. 126; PAGEL V. MACLEAN, 283 U.S. 266; PATTERSON V. ALABAMA, 294
U.S. 600, 607; ASHCRAFT V. TENNESSEE, 322 U.S. 143, 156.  SEE DORCHY V.
KANSAS, 264 U.S. 286, 291.  IN THOSE CASES THE SUPERVENING EVENT HAD
RAISED QUESTIONS OF STATE LAW WHICH MIGHT HAVE WARRANTED A REVERSAL OF
THE JUDGMENT.  IF THEY WERE ADEQUATE, IT WOULD BE UNNECESSARY TO REACH
THE FEDERAL QUESTIONS WHICH WERE PRESENTED.  MOREOVER, IT APPEARED IN
SOME OF THOSE CASES THAT UNLESS THE JUDGMENT OF THE STATE COURT WERE
VACATED, THE OPPORTUNITY TO RAISE THE NEW QUESTIONS WHICH HAD EMERGED
MIGHT BE LOST.  SEE GULF, C. & S.F.R. CO. V. DENNIS, SUPRA; PAGEL V.
MACLEAN, SUPRA.  IT IS SUGGESTED THAT THAT COURSE SHOULD BE FOLLOWED
HERE SO THAT THIS ADDITIONAL FEDERAL QUESTION MAY BE PASSED UPON BY THE
WISCONSIN SUPREME COURT.  WE WOULD NOT HESITATE TO ADOPT THAT PROCEDURE
IN THE INTERESTS OF JUSTICE IF IT APPEARED THAT OTHERWISE APPELLANT
WOULD BE FORECLOSED FROM AN ADJUDICATION OF THE ISSUE.  APPELLANT DOES
NOT SHOW THAT IT WOULD BE.  RESPONDENT ASSUMES IN ITS BRIEF THAT
APPELLANT WILL NOT BE FORECLOSED.  AND WE THINK THAT ASSUMPTION IS
WARRANTED FOR THE FOLLOWING REASONS. 

WE ARE ADVISED THAT APPELLANT HAS PENDING IN THE WISCONSIN COURTS
ANOTHER SUIT IN RESPECT TO THE LICENSE YEAR COMMENCING MAY 1, 1944. 
WISCONSIN HAS THE FAMILIAR RULE THAT THOUGH THE VALIDITY OF THE LAW IN
QUESTION MIGHT HAVE BEEN DETERMINED IN AN EARLIER SUIT, THE PRIOR
JUDGMENT IS NOT RES JUDICATA WHERE THE SECOND SUIT IS ON A DIFFERENT
CAUSE OF ACTION IN ABSENCE OF EVIDENCE TO SHOW THAT THE QUESTION WAS
ACTUALLY PRESENTED TO THE COURT AND DECIDED IN THE EARLIER LITIGATION. 
WENTWORTH V. RACINE COUNTY, 99 WIS. 26, 31, 74 N.W. 551; GRUNERT V.
SPALDING, 104 WIS. 193, 213-214, 79 N.W. 606, 80 N.W. 589; LINDEMANN V.
RUSK, 125 WIS. 210, 237, 104 N.W. 119.  BUT IF THAT PRINCIPLE IS
INAPPLICABLE HERE IT IS NEVERTHELESS THE GENERAL RULE THAT RES JUDICATA
IS NO DEFENSE WHERE BETWEEN THE TIME OF THE FIRST JUDGMENT AND THE
SECOND THERE HAS BEEN AN INTERVENING DECISION OR A CHANGE IN THE LAW
CREATING AN ALTERED SITUATION.  2 FREEMAN ON JUDGMENTS (5TH ED. 1925)
SEC. 713; BLAIR V. COMMISSIONER, 300 U.S. 5, 9; WEST COAST LIFE INS.
CO. V. MERCED IRRIGATION DIST., 114 F.2D 654, 662; IN RE POMEROY, 51
MONT. 119, 151 P. 333; HURD V. ALBERT, 214 CAL. 15, 26, 3 P.2D 545.  WE
CANNOT FIND THAT WISCONSIN HAS A DIFFERENT RULE. 

THE WISCONSIN STATUTE, MOREOVER, GIVES THE COURT POWER TO ALLOW AN
AMENDMENT "AT ANY STAGE OF ANY ACTION OR SPECIAL PROCEEDING BEFORE OR
AFTER JUDGMENT, IN FURTHERANCE OF JUSTICE AND UPON SUCH TERMS AS MAY BE
JUST" PROVIDED THAT "THE AMENDED PLEADING STATES A CAUSE OF ACTION
ARISING OUT OF THE CONTRACT, TRANSACTION OR OCCURRENCE OR IS CONNECTED
WITH THE SUBJECT OF THE ACTION UPON WHICH THE ORIGINAL PLEADING IS
BASED."  WIS. STAT. 1943, SEC. 269.44.  THAT POWER HAS BEEN CONSTRUED
VERY LIBERALLY.  KENNEDY V. WAUGH, 23 WIS. 468; POST V. CAMPBELL, 110
WIS. 378, 85 N.W. 1032; MALLON V. TONN, 163 WIS. 366, 157 N.W. 1098;
MICEK V. WAMKA, 165 WIS. 97, 161 N.W. 367; TURNER MFG. CO. V. GMEINDER,
183 WIS. 664, 198 N.W. 611; KAEGI V. INDUSTRIAL COMMISSION, 232 WIS.
16, 285 N.W. 845.  AND IT EXISTS AFTER THE CASE HAS BEEN REMANDED TO
THE TRIAL COURT FOLLOWING AN AFFIRMANCE BY THE WISCONSIN SUPREME
COURT.  SEE ANGERS V. SABATINELLI, 235 WIS. 422, 293 N.W. 173; 239 WIS.
364, 1 N.W.2D 765. 

WE CONCLUDE THAT APPELLANT IS NOT FORECLOSED UNDER WISCONSIN
PROCEDURE FROM OBTAINING A DETERMINATION IN THE WISCONSIN COURTS OF THE
COMMERCE CLAUSE QUESTION EITHER IN THE PRESENT SUITS OR IN THE OTHER
PENDING ONE.  ACCORDINGLY WE DO NOT THINK IT IS NECESSARY TO VACATE THE
JUDGMENT BELOW IN ORDER THAT APPELLANT MAY HAVE AN OPPORTUNITY TO
OBTAIN THE RULING.  AFFIRMED. 

MR. JUSTICE ROBERTS DISSENTS. 

MR. JUSTICE JACKSON. 

I THINK THAT THE JUDGMENT BELOW SHOULD BE VACATED RATHER THAN
AFFIRMED AND DO NOT, THEREFORE, REACH THE CONSTITUTIONAL QUESTIONS
DEALT WITH IN THE COURT'S OPINION.  I DOUBT THAT THE WISCONSIN SUPREME
COURT CAN OPEN AND RE-EXAMINE A JUDGMENT AFTER IT IS AFFIRMED BY THIS
COURT.  AS THE COURT RECOGNIZES, TO VACATE IS THE PROCEDURE THAT HAS
BEEN FOLLOWED WHEN SIMILAR SITUATIONS HAVE BEEN PRESENTED HERETOFORE. 
..END :





















WEBRE STEIB CO. V. COMM'R, 324 U.S. 164 


NO. 148.  ARGUED DECEMBER 13, 1944.  - DECIDED FEBRUARY 12, 1945.  - 140
F.2D 768, MODIFIED. 


1.  IN A PROCEEDING UNDER TITLE VII OF THE REVENUE ACT OF 1936 FOR A
REFUND OF PROCESSING TAXES PAID UNDER THE AGRICULTURAL ADJUSTMENT ACT
OF 1933, THE PRESUMPTION FROM MARGIN EVIDENCE THAT THE CLAIMANT BORE
THE BURDEN OF THE TAX REQUIRES, IN THE ABSENCE OF OPPOSING EVIDENCE, A
REFUND PRO TANTO.  P. 169. 

2.  THE PRESUMPTION ARISING FROM MARGIN EVIDENCE FAVORABLE TO THE
CLAIMANT PLACES UPON THE COMMISSIONER THE BURDEN OF GOING FORWARD WITH
EVIDENCE SUFFICIENT TO SUPPORT A FINDING THAT THE CLAIMANT DID NOT BEAR
THE BURDEN OF THE TAX.  P. 170. 

3.  THE COMMISSIONER'S EVIDENCE IN THIS CASE WAS SUFFICIENT TO
SUPPORT A FINDING THAT THE CLAIMANT HAD NOT BORNE THE BURDEN OF ANY
PART OF THE TAX, AND THE PRESUMPTION FROM THE CLAIMANT'S MARGIN
EVIDENCE WAS THEREBY RENDERED INOPERATIVE.  P. 171. 

4.  ON REVIEW OF ADMINISTRATIVE DECISIONS, THIS COURT MUST DETERMINE
WHETHER THERE IS EVIDENCE LEGALLY SUFFICIENT FOR ADMINISTRATIVE ACTION,
BUT MAY NOT WEIGH IT.  DOBSON V. COMMISSIONER, 320 U.S. 489.  P. 173. 

5.  ALTHOUGH THE COMMISSIONER'S REBUTTAL EVIDENCE RENDERED THE
PRESUMPTION INOPERATIVE, THE RECORD - THE MARGIN EVIDENCE BEING STILL
IN THE CASE FOR WHATEVER IT MIGHT BE WORTH APART FROM THE PRESUMPTION -
IS NOT DEVOID OF RATIONAL SUPPORT FOR A FINDING THAT THE CLAIMANT
ABSORBED SOME OF THE TAX; AND THE CAUSE MUST BE REMANDED TO THE TAX
COURT FOR A WEIGHING OF THE EVIDENCE, INCLUDING SUCH FURTHER EVIDENCE
AS THAT COURT MAY PROPERLY ADMIT.  P. 174. 

6.  EVIDENCE AS TO MARGINS IN A PERIOD LATER THAN THE BASE PERIOD,
THOUGH IRRELEVANT TO THE PRESUMPTION CREATED BY SEC. 907(A), WAS
ADMISSIBLE FOR WHATEVER PROBATIVE VALUE IT MIGHT HAVE INDEPENDENTLY. 
P. 175. 

WEBRE STEIB CO., LTD. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 323 U.S. 686, TO REVIEW A JUDGMENT WHICH, REVERSING A
DECISION OF THE PROCESSING TAX BOARD OF REVIEW, HELD THAT A CLAIM FOR
REFUND OF PROCESSING TAXES SHOULD HAVE BEEN DISALLOWED IN ITS
ENTIRETY. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING BROUGHT FOR RECOVERY OF SUGAR PROCESSING TAXES
PAID UNDER THE AGRICULTURAL ADJUSTMENT ACT OF 1933.  THE COMMISSIONER
HAVING DENIED IN ENTIRETY THE TAXPAYER'S CLAIM FOR $8,169.97, THE TOTAL
TAX PAID BY IT, TAXPAYER PETITIONED FOR REVIEW BY THE PROCESSING TAX
BOARD OF REVIEW, AS PROVIDED BY STATUTE.  49 STAT. 1749.  THE BOARD
AWARDED REFUND IN THE AMOUNT OF $3,655.82, AND MOTIONS FOR REHEARING
MADE BY BOTH PARTIES WERE DENIED BY THE TAX COURT, WHICH HAD SUCCEEDED
TO THE JURISDICTION OF THE PROCESSING TAX BOARD OF REVIEW.  56 STAT.
798.  ON APPEAL, THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED
AND HELD THAT THE CLAIM SHOULD BE DENIED.  140 F.2D 768.  WE TOOK THE
CASE TO REVIEW QUESTIONS OF APPLICATION OF THE "PRIMA FACIE EVIDENCE"
AND "PRESUMPTION" SECTIONS OF TITLE VII, REVENUE ACT OF 1936, ON WHICH
THERE WAS CONFLICT IN THE CIRCUITS.  COMMISSIONER V. BAIN PEANUT CO.,
134 F.2D 853, CERT. GRANTED, 320 U.S. 721, DISMISSED ON MOTION OF
PETITIONER, 321 U.S. 800; HELVERING V. INSULAR SUGAR REFINING CORP.,
141 F.2D 713; CF. E. REGENSBURG & SONS V. HELVERING, 130 F.2D 507. 

A NEW ADMINISTRATIVE PROCEDURE FOR RECOVERY OF TAXES PAID UNDER THE
AGRICULTURAL ADJUSTMENT ACT WAS PROVIDED BY TITLE VII OF THE REVENUE
ACT OF 1936, SECS. 901-917, 49 STAT. 1747, 7 U.S.C. SECS. 644-59,
REPEALING SECS. 21(D), (E), AND (G) OF THE 1935 AMENDMENTS TO THE
AGRICULTURAL ADJUSTMENT ACT, 49 STAT. 771-73.  THE PROVISIONS WERE
REVIEWED AT LENGTH AND THEIR CONSTITUTIONALITY UPHELD IN ANNISTON MFG.
CO. V. DAVIS, 301 U.S. 337.  IN OUTLINE, SO FAR AS RELEVANT TO THIS
CASE, THEY ARE AS FOLLOWS:  THE CLAIMANT IS REQUIRED TO PROVE THAT HE
BORE THE BURDEN OF THE TAX.  SEC. 902.  AVERAGE "MARGINS" PER UNIT OF
THE COMMODITY PROCESSED, CONSISTING OF THE DIFFERENCE BETWEEN COST OF
THE COMMODITY (PLUS TAX PAID, IF ANY) AND GROSS SALES VALUE OF THE
ARTICLES RESULTING FROM THE PROCESSING, ARE TO BE COMPUTED FOR THE TAX
PERIOD AND A BASE PERIOD; THE BASE PERIOD IS THE PERIOD TWO YEARS
PRECEDING IMPOSITION OF THE TAX AND THE SIX MONTHS THEREAFTER (FEBRUARY
TO JULY, 1936).  SECS. 907(B), (C).  IF THE MARGINS FOR THE TAX PERIOD
ARE LOWER THAN THOSE FOR THE BASE PERIOD, IT IS "PRIMA FACIE EVIDENCE"
THAT, TO THAT EXTENT, THE CLAIMANT BORE THE BURDEN OF THE TAX; IF THEY
ARE NOT LOWER, IT IS "PRIMA FACIE EVIDENCE" THAT NONE OF THE BURDEN WAS
BORNE BY THE CLAIMANT.  SEC. 907(A).  BUT THIS "PRESUMPTION" MAY BE
REBUTTED EITHER BY THE CLAIMANT OR BY THE COMMISSIONER, BY PROOF OF
"THE ACTUAL EXTENT" TO WHICH THE CLAIMANT SHIFTED THE TAX TO OTHERS. 
SUCH PROOF MAY INCLUDE, BUT IS NOT LIMITED TO, CERTAIN TYPES OF
EVIDENCE DESCRIBED BY THE STATUTE.  SEC. 907(E). 

FOR OUR PURPOSES THE MATERIAL FACTS MUST BE GLEANED FROM THE FINDINGS
AND MEMORANDUM OF THE BOARD OF REVIEW AND A STIPULATION FILED BY THE
PARTIES IN THE COURT OF APPEALS. 

PETITIONER IS A GROWER AND PURCHASER OF SUGAR CANE, WHICH IT
PROCESSES INTO DIRECT-CONSUMPTION SUGAR AND EDIBLE MOLASSES.  FN1  IT
OPERATES DURING THE MONTHS OF OCTOBER, NOVEMBER AND DECEMBER OF EACH
YEAR.  THE TAX WENT INTO EFFECT ON JUNE 8, 1934 AND PETITIONER PAID
TAXES UNTIL NOVEMBER 8, 1935, SO THAT IT PAID PROCESSING TAXES -
$7,067.12 ON SUGAR AND $1,102.85 ON MOLASSES - FOR THE MONTHS OF
OCTOBER, NOVEMBER AND DECEMBER 1934 AND OCTOBER AND NOVEMBER 1935.  ITS
AVERAGE STATUTORY MARGIN FOR THIS PERIOD WAS $.01192, AND THE TOTAL
NUMBER OF UNITS PROCESSED WAS 2,256,676 POUNDS OF SUGAR.  PETITIONER'S
BASE PERIOD CONSISTED ONLY OF THE TWO YEARS PRIOR TO THE TAX BECAUSE IT
DID NO PROCESSING IN THE SIX MONTHS FEBRUARY TO JULY 1936.  ITS AVERAGE
STATUTORY MARGIN PER UNIT FOR THE BASE PERIOD WAS $.01354.  THUS THE
MARGIN DURING THE TAX PERIOD WAS $.00162 PER UNIT LOWER THAN THAT
DURING THE BASE PERIOD, CREATING "PRIMA FACIE EVIDENCE" THAT PETITIONER
HAD BORNE THE TAX TO THE EXTENT OF $3,655.82, THE AMOUNT OF REFUND
ALLOWED BY THE BOARD.  PETITIONER CONTENDS THAT THIS AMOUNT SHOULD HAVE
BEEN INCREASED BY INCLUDING IN THE MARGINS ITS FIRST PROCESSING AFTER
INVALIDATION OF THE AGRICULTURAL ADJUSTMENT ACT, WHICH WAS ITS
PROCESSING OF THE 1936 CROP, OCTOBER 1936 TO JANUARY 1937.  THE AVERAGE
MARGIN PER UNIT FOR THIS PERIOD, COMPUTED AS FOR THE BASE PERIOD, WAS
$.01582, OR $.00228 MORE THAN THE BASE-PERIOD MARGIN. 

EVIDENCE THAT THE TAX WAS NOT BORNE BY PETITIONER WAS AS FOLLOWS:
UNIVERSAL INCREASES IN THE SALE PRICE OF SUGAR WERE EFFECTED ON THE
DATE OF IMPOSITION OF THE PROCESSING TAX IN THE AMOUNT OF $.55 PER
HUNDRED POUNDS, TO COVER THE AMOUNT OF THE TAX.  ALL OF THE ACCOUNTS
STATED BETWEEN PETITIONER AND ITS BROKER, E. A. RAINOLD, INC.,
RESPECTING SALES OF MOLASSES MADE THROUGH THAT BROKER, INCLUDING THE
PROCESSING TAX AS A SEPARATE ITEM AND AS AN ADDITION TO THE SALE PRICE
OF THE ARTICLE.  "AN ACCOUNT SALE, TYPICAL OF ALL SUCH ACCOUNTS,
RESPECTING THE SALES OF SUGAR, MADE THROUGH ITS SAID BROKER" BORE THE
NOTATION, "GOLDEN RIDGE, 100 PKTS.  10,000#  3.71[ $371.00.  F.O.B.
PLTN.  TAX PD. TAX 0.526[," $.526 BEING THE PREVAILING RATE OF
PROCESSING TAX AT THE TIME THE PARTICULAR ACCOUNT WAS RENDERED.  A
LETTER FROM THE BROKER RAINOLD TO PETITIONER, DATED JANUARY 17, 1936,
CONTAINED THE FOLLOWING:  "ACCORDING TO MEMORANDUM YOU FURNISHED US ON
PROCESSING TAX YOU PAID ON 298,017 POUNDS OF SUGAR, AND WE HAVE
ACCOUNTED TO YOU FOR THERE (THREE) CARS OF 800 POCKETS AND PART CAR OF
300 POCKETS AND WHEN WE GET PAID FOR THE BALANCE OF THIS PART CAR, OR
500 POCKETS, IT WILL TOTAL 3200 POCKETS OR 320,000# ON WHICH THE
PROCESSING TAX WAS INCLUDED IN THE PRICE.  THEREFORE YOU HAVE NOT PAID
ANY MORE TAX THAN YOU COLLECTED AND THESE SUGARS IN WAREHOUSE HERE AND
ELSEWHERE, THAT IS CHICAGO, OR (ARE) REALLY TAX FREE." 

ON THE FOREGOING FACTS THE BOARD OF REVIEW FOUND THAT "THE EXTENT TO
WHICH THE PROCESSING TAX (WAS) PAID AND BORNE BY THE PETITIONER AND NOT
SHIFTED TO OTHERS IN ANY MANNER WHATSOEVER IS $3,655.82," AND IT
AWARDED REFUND IN THAT AMOUNT.  THIS AWARD WAS BASED, THE CIRCUIT COURT
OF APPEALS THOUGHT, "UPON THE THEORY THAT THE CLAIMANT HAD ESTABLISHED
FACTS SUFFICIENT TO INVOKE THE STATUTORY PRESUMPTION THAT IT HAD BORNE
THE BURDEN OF THE TAX" TO THAT EXTENT.  IN THE VIEW OF THE COURT OF
APPEALS, HOWEVER, THE EVIDENCE "CLEARLY WAS SUFFICIENT TO DISSOLVE THE
PRESUMPTION, AND SINCE THERE WAS NO OTHER PROOF TO SUPPORT ANY REFUND,
THE CLAIM SHOULD HAVE BEEN DISALLOWED IN ITS ENTIRETY." 

OUR FIRST QUESTION IS WHETHER THE BOARD WAS ENTITLED TO BASE AN AWARD
UPON THE STATUTORY "PRIMA FACIE EVIDENCE" OR "PRESUMPTION," OR WHETHER
THE GOVERNMENT'S EVIDENCE REMOVED THE PRESUMPTION FROM THE CASE AS A
MATTER OF LAW.  FOR, ALTHOUGH THE BOARD DID NOT STATE HOW IT ARRIVED AT
ITS AWARD, IT SEEMS LIKELY THAT IT RELIED UPON THE PRIMA FACIE EVIDENCE
PROVISIONS AND NOT UPON A WEIGHING OF THE EVIDENCE; PETITIONER DOES NOT
ASSIGN ERROR TO THE CONTRARY, ALTHOUGH IT CONTENDS THAT THE EVIDENCE
SUPPORTS THE BOARD'S AWARD. 

THE STATUTE, UNFORTUNATELY, IS BESET BY THE AMBIGUITY AND THE
IMPRECISION OF DEFINITION WHICH ARE NOT UNCOMMON WITH RESPECT TO
PRESUMPTIONS.  BUT THE DIFFICULTIES OF THE SUBJECT WILL NOT EXCUSE US
FROM THE DUTY TO APPLY AS BEST WE MAY A STATUTE CONGRESS HAS SEEN FIT
TO ENACT.  AT ONE POINT IT SPEAKS ONLY OF "PRIMA FACIE EVIDENCE" AND AT
ANOTHER IT REFERS TO THE PRIOR SECTION AS CREATING A "PRESUMPTION." 
"PRIMA FACIE EVIDENCE" ALONE MIGHT BE TAKEN TO SIGNIFY ONLY A
PERMISSIVE INFERENCE, INDICATING THAT THE COMMISSIONER OR THE COURTS
MIGHT, IF THEY SAW FIT, PERMIT A RECOVERY SOLELY ON THE BASIS OF THE
MARGIN EVIDENCE.  SEE CRANE V. MORRIS, 6 PET. 598, 621; BAILEY V.
ALABAMA, 219 U.S. 219, 234; 9 WIGMORE ON EVIDENCE (3D ED. 1940) SEC.
2494.  BUT THE STATUTE'S LATER USE OF THE WORD "PRESUMPTION" AND THE
CAREFUL DETAIL WITH WHICH THE MARGIN EVIDENCE AND REBUTTAL EVIDENCE ARE
DESCRIBED ARGUE AGAINST SUCH AN INTERPRETATION, AS DOES THE LEGISLATIVE
BACKGROUND.  A COMMITTEE REPORT ON TITLE VII, EXPLAINING THE NECESSITY
FOR AMENDING THE EXISTING REFUND PROVISIONS, STATED:  "IT HAS BEEN
CONTENDED THAT WHILE THAT SECTION (SEC. 21(D) OF THE AGRICULTURAL
ADJUSTMENT ACT) STATES THE CONDITIONS UNDER WHICH THE COMMISSIONER MAY
DENY A REFUND OF TAXES PAID, IT DOES NOT ESTABLISH AFFIRMATIVELY ANY
CONDITIONS, COMPLIANCE WITH WHICH WILL ENABLE THE CLAIMANT TO SECURE A
REFUND."  SEN. REP. 2156, 74TH CONG., 2D SESS., P. 33.  FROM THIS IT
SEEMS CLEAR THAT THE NEW PROVISION WAS MEANT TO PRESCRIBE A MINIMUM OF
PROOF WHICH WOULD REQUIRE REFUND IN THE ABSENCE OF OPPOSING EVIDENCE. 
THEREFORE THE INFERENCE ARISING FROM THE MARGIN EVIDENCE MUST BE A
COMPELLED ONE. 

THE STATUTE DOES NOT TELL, HOWEVER, ON WHAT EVENT THE EXISTENCE OF
THE PRESUMED FACT MUST CEASE TO BE ASSUMED BY THE TRIER.  DOES THE
PRESUMPTION CEASE TO OPERATE AS SOON AS THE COMMISSIONER HAS MET THE
BURDEN OF GOING FORWARD WITH EVIDENCE TO SHOW SHIFTING OF THE TAX, OR
DOES IT PLACE ON HIM THE BURDEN OF PROOF?  THE GOVERNMENT AND THE COURT
BELOW, TAKING THE FORMER VIEW, SUPPORT IT WITH THE CONTENTION THAT "IT
IS NEVER THE FUNCTION OF A REBUTTABLE PRESUMPTION TO SHIFT THE BURDEN
OF PROOF."  COMMISSIONER V. BAIN PEANUT CO., 134 F.2D 853, 857.  IT IS
UNNECESSARY FOR US TO TAKE SO BROAD A GROUND, EVEN IF IT IS CORRECT. 
FN2  DEALING ONLY WITH THE PARTICULAR PRESUMPTION NOW BEFORE US, WE
FIND NOTHING TO INDICATE THAT CONGRESS ATTACHED EXCEPTIONAL PROBATIVE
VALUE TO THE MARGIN EVIDENCE, OR THAT IT DESIRED FOR ANY OTHER REASON
TO TILT THE SCALES SHARPLY AGAINST THE COMMISSIONER RATHER THAN MERELY
TO EVEN THEM SOMEWHAT IN BEHALF OF CLAIMANTS.  THERE IS, FOR EXAMPLE,
NO REASON TO SUPPOSE THAT THE COMMISSIONER IS BETTER ABLE THAN THE
PROCESSOR TO PROVE WHERE THE TAX BURDEN FELL.  ON THE OTHER HAND, THE
SPECIAL PROBLEM HERE OF PREVENTING UNJUST ENRICHMENT, ADDED TO THE
USUAL STRICT EXAMINATION OF CLAIMS AGAINST THE GOVERNMENT, CONVINCES
THAT CONGRESS PROBABLY INTENDED TO LEAVE THE BURDEN OF PROOF ON THE
CLAIMANT.  CF. UNITED STATES V. JEFFERSON ELECTRIC MFG. CO., 291 U.S.
386. 

IN THE ABSENCE OF ANY CLEARER STATEMENT IN THE STATUTE, THEREFORE, WE
THINK THE PRESUMPTION IS GIVEN ADEQUATE EFFECT IF THE BURDEN IS PLACED
ON THE COMMISSIONER OF GOING FORWARD WITH EVIDENCE SUFFICIENT TO
SUPPORT A FINDING THAT THE CLAIMANT DID NOT ABSORB THE TAX.  ONCE SUCH
EVIDENCE IS PRESENTED, THE PRESUMPTION BECOMES INOPERATIVE AND THE
ISSUE IS TO BE DETERMINED AS IF THERE HAD NEVER BEEN A PRESUMPTION. 
THE STATUTE DECLARES, HOWEVER, THAT THE PRESUMPTION MAY BE REBUTTED BY
PROOF OF "THE ACTUAL EXTENT" TO WHICH THE BURDEN OF THE TAX WAS
SHIFTED.  THIS LANGUAGE APPEARS TO MEAN THAT THE PRESUMPTION MAY BE
REBUTTED PRO TANTO, AND NOT NECESSARILY ALL AT ONCE OR NOT AT ALL. 
THUS IT DOES NOT CEASE TO OPERATE ON INTRODUCTION OF EVIDENCE MERELY
SUFFICIENT TO SUPPORT A FINDING THAT SOME OF THE TAX WAS SHIFTED.  IT
MUST BE EVIDENCE SUFFICIENT TO SUPPORT A FINDING THAT THE ENTIRE TAX
WAS SHIFTED.  SHORT OF THAT, THE PRESUMPTION IS NOT ELIMINATED BUT ONLY
DIMINISHED TO THE EXTENT THAT THE REBUTTAL EVIDENCE WILL SUPPORT A
CONTRADICTORY FINDING.  SEE REGENSBURG & SONS V. HELVERING, 130 F.2D
507, 509.  WHEN THE MARGINS ARE UNFAVORABLE TO THE TAXPAYER AND
FAVORABLE TO THE COMMISSIONER, IT IS UNNECESSARY, OF COURSE, TO PLACE A
BURDEN OF GOING FORWARD WITH EVIDENCE ON THE CLAIMANT, FOR HE HAS THAT
BURDEN ANYWAY, AS WELL AS THE BURDEN OF PROOF.  WHETHER THIS MEANS THAT
THE STATUTE'S LANGUAGE MAKING THE PRESUMPTION OPERATE IN FAVOR OF THE
COMMISSIONER IS SUPERFLUOUS, OR THAT IN SUCH A CASE THE PRESUMPTION
MUST BE GIVEN A DIFFERENT EFFECT THAN WHEN IN FAVOR OF THE CLAIMANT, WE
DO NOT NOW DECIDE.  CF. REGENSBURG & SONS V. HELVERING, SUPRA. 

ON THE VIEW WE TAKE OF THE STATUTE, THE PROOF INTRODUCED BY THE
COMMISSIONER MADE THE PRESUMPTION INOPERATIVE.  WE CERTAINLY COULD NOT
SAY THAT, VIEWED BY ITSELF, THE COMMISSIONER'S EVIDENCE WOULD NOT
PERMIT A FINDING THAT PETITIONER SHIFTED THE ENTIRE BURDEN OF THE TAX. 
IT TENDED TO SHOW THAT IN ALL DEALINGS WITH ITS BROKER THE PETITIONER
ADDED THE AMOUNT OF THE TAX TO THE SALE PRICE AND ITEMIZED IT
SEPARATELY.  THAT THIS WAS TRUE AS TO ALL SALES OF MOLASSES SEEMS TO BE
CONCEDED.  IT WAS ALSO TRUE, OR SO IT MIGHT BE FOUND, AS TO A
SUBSTANTIAL PART OF THE SUGAR SALES AND THEREFORE INFERENTIALLY AS TO
ALL SUCH SALES.  PETITIONER RAISES SOME QUESTION AS TO THE PROPER
INFERENCE TO BE DRAWN FROM THE SUGAR ACCOUNT AND THE BROKER'S LETTER
QUOTED ABOVE.  BUT AT LEAST THE BROKER'S REMARKS THAT "THE PROCESSING
TAX WAS INCLUDED IN THE PRICE" AND "THEREFORE YOU HAVE NOT PAID ANY
MORE TAX THAN YOU COLLECTED" ARE UNMISTAKABLE IN THEIR MEANING.  ALL OF
THIS EVIDENCE IS AMONG THE KINDS EXPRESSLY MENTIONED BY THE STATUTE AS
TENDING TO REBUT THE PRESUMPTION.  MORE IMPORTANT, THE STATUTE APPEARS
SPECIFICALLY TO PROVIDE THAT INTRODUCTION OF ANY EVIDENCE OF THIS
PARTICULAR KIND SHALL BE SUFFICIENT TO REBUT THE ENTIRE PRESUMPTION. 
IT STATES THAT THE PRESUMPTION MAY BE REBUTTED BY RPOOF THAT THE
CLAIMANT MODIFIED SALES CONTRACTS TO REFLECT THE INITIATION,
TERMINATION, OR CHANGE IN AMOUNT OF THE TAX, OR "AT ANY SUCH TIME"
CHANGED THE SALE PRICE OF THE ARTICLE, OR "AT ANY TIME" BILLED THE TAX
AS A SEPARATE ITEM, OR INDICATED "BY ANY WRITING" THAT THE SALE PRICE
INCLUDED THE AMOUNT OF THE TAX.  IT THEN DECLARES, "BUT THE CLAIMANT
MAY ESTABLISH THAT SUCH ACTS  ...  DO NOT REPRESENT HIS PRACTICE AT
OTHER TIMES."  SEC. 907(2).  THIS SEEMS CLEARLY TO MEAN THAT WHEN ANY
EXAMPLES OF THE NAMED PRACTICES ARE PROVED, IT MAY BE INFERRED THAT
THEY REPRESENT THE UNIFORM PRACTICE OF THE CLAIMANT AND THE BURDEN
BECOMES HIS TO PROVE THAT THEY DO NOT.  SINCE THE COMMISSIONER PROVED
THAT NOT ONLY IN A FEW CASES BUT IN A GREAT NUMBER THE TAX WAS
INDICATED IN WRITING TO BE INCLUDED IN THE SALE PRICE, WE THINK THERE
IS NO DOUBT THAT HE FULLY REBUTTED THE PRESUMPTION WITHIN THE MEANING
OF THE STATUTE. 

THE SECOND QUESTION IS WHETHER, WITH THE PRESUMPTION OUT OF THE CASE,
THERE IS EVIDENCE FROM WHICH THE TAX COURT WOULD BE ENTITLED TO AWARD A
REFUND TO PETITIONER IN ANY AMOUNT.  THE COURT BELOW, ALTHOUGH IT
REMANDED THE CAUSE, APPARENTLY MEANT FOR IT TO BE DISMISSED, FOR IT
SAID, THE CLAIM SHOULD HAVE BEEN DISALLOWED IN ITS ENTIRETY." 
LITERALLY, OF COURSE, THIS CANNOT BE TRUE, FOR THE MARGIN EVIDENCE
REMAINED IN THE CASE FOR WHATEVER IT MIGHT BE WORTH APART FROM THE
PRESUMPTION.  WITH THIS THE GOVERNMENT AGREES, AND IT CONCEDES THAT,
UNLESS WE CAN SAY THAT THE EVIDENCE WOULD NOT RATIONALLY SUPPORT A
FINDING IN FAVOR OF PETITIONER, THE CASE MUST GO BACK TO THE TAX COURT
FOR DECISION ON THE EVIDENCE RATHER THAN ON THE PRESUMPTION.  WE MUST
DETERMINE WHETHER THERE IS EVIDENCE WHICH IS LEGALLY SUFFICIENT FOR
ADMINISTRATIVE ACTION, BUT WE MAY NOT WEIGH IT.  DOBSON V.
COMMISSIONER, 320 U.S. 489. 

THE FACT THAT MARGINS FOR THE TAX PERIOD ARE LOWER THAN THOSE FOR THE
BASE PERIOD HAS SOME LOGICAL TENDENCY TO ESTABLISH THAT THE BURDEN OF
THE TAX WAS BORNE BY THE PROCESSOR.  SEE ANNISTON MFG. CO. V. DAVIS,
301 U.S. 337, 354.  THERE ARE, TO BE SURE, OTHER AND CONFLICTING
INFERENCES WHICH MAY ALSO BE DRAWN.  AS THE MARGINS ARE DEFINED, THE
DROP MIGHT BE DUE TO A DECLINE IN THE DEMAND FOR THE PROCESSED GOODS,
OR TO A DECREASE IN THE YIELD OF THE RAW COMMODITY, OR TO AN INCREASE
IN THE PRICE OF THE RAW COMMODITY.  BUT WE HAVE NO BASIS FOR SAYING
THAT THE MARGIN THUS DEFINED DOES NOT TEND TO BE COMPARATIVELY STABLE
AND THAT A FALL COINCIDENT WITH IMPOSITION OF A TAX WOULD NOT MORE
LIKELY REFLECT THE TAX THAN A CHANGE IN OTHER FACTORS.  WE SUPPOSE THE
TAKING OF AVERAGE MARGINS OVER A BASE PERIOD HAS SOME TENDENCY TO
PRODUCE THAT RESULT.  AND THE TAX COURT'S SPECIAL EXPERIENCE MIGHT
SUPPORT SUCH AN INFERENCE.  CF. DOBSON V. COMMISSIONER, SUPRA. CONGRESS
APPARENTLY BELIEVED THAT THE RATIONAL CONNECTION WAS STRONG ENOUGH TO
JUSTIFY BASING A FINDING OF ABSORPTION ON THE MARGIN EVIDENCE ALONE. 
FOR, AS WE HAVE SEEN, CONGRESS INTENDED THAT IN A CASE WHERE THE
MARGINS WERE FAVORABLE TO THE CLAIMANT AND NO OTHER EVIDENCE WAS
INTRODUCED THE CLAIMANT SHOULD BE ENTITLED TO A REFUND, AND THERE
APPEARS NO REASON OF CONVENIENCE OR POLICY WHICH WOULD LEAD TO SUCH A
RULE IN THE ABSENCE OF RATIONAL CONNECTION.  FOR ALL THESE REASONS WE
THINK A FINDING OF ABSORPTION WHICH WAS BASED SOLELY ON THE MARGIN
COMPARISONS WOULD NOT BE IRRATIONAL. 

NOR IS THE COMMISSIONER'S EVIDENCE SO CONCLUSIVE AS TO DEPRIVE THE
MARGIN EVIDENCE OF ALL SIGNIFICANCE.  IT PERMITS BUT DOES NOT REQUIRE A
FINDING THAT PETITIONER HAD A UNIFORM PRACTICE OF BILLING THE TAX AS A
SEPARATE ITEM.  EVEN THOUGH SUCH A PRACTICE BE INFERRED, THERE IS NO
EVIDENCE TO SHOW HOW FAR PETITIONER SUCCEEDED IN ITS EFFORT TO PASS THE
TAX ON, EXCEPT FOR THE EVIDENCE THAT THERE WAS A GENERAL RISE IN THE
MARKET ON A DATE SOME MONTHS BEFORE PETITIONER'S PROCESSING BEGAN.  THE
MARGINS ARE SOME EVIDENCE THAT THE PRICE MAY NOT HAVE RESPONDED
CONTINUOUSLY TO THE EFFORT TO SHIFT THE TAX.  THE FACT MAY BE THAT
NEITHER SIDE'S EVIDENCE GOES VERY FAR TOWARD DEMONSTRATING WHERE THE
BURDEN OF THE TAX FELL; FN3  THE INQUIRY IS AT BEST A DIFFICULT ONE. 
BUT WE DO NOT THINK IT CAN BE SAID THAT THE RECORD IS DEVOID OF
RATIONAL SUPPORT FOR A FINDING THAT PETITIONER ABSORBED SOME OF THE
TAX.  ACCORDINGLY WE MUST REMAND THE CASE FOR A WEIGHING OF THE
EVIDENCE, INCLUDING, OF COURSE, SUCH FURTHER EVIDENCE AS THE TAX COURT
MAY THINK IT PROPER TO RECEIVE IN VIEW OF THE WAY IN WHICH THE CASE HAS
BEEN TRIED.  IN DOING SO WE INTIMATE NO OPINION, OF COURSE, AS TO
WHETHER PETITIONER HAS SUSTAINED THE BURDEN OF PROOF PLACED UPON IT BY
THE STATUTE. 

SINCE THE CASE MUST GO BACK, IT IS NECESSARY TO PASS UPON A FURTHER
QUESTION RAISED BY PETITIONER.  PETITIONER, AS WE HAVE NOTED, WAS NOT
PROCESSING DURING THE SIX MONTHS, FEBRUARY TO JULY 1936, DESIGNATED BY
THE STATUTE FOR COMPUTING MARGINS AFTER THE TAX PERIOD.  FOR SUCH A
CASE THE STATUTE PROVIDES:  "IF DURING ANY PART OF SUCH PERIOD THE
CLAIMANT WAS NOT IN BUSINESS  ... THE AVERAGE PRICES PAID OR RECEIVED
BY REPRESENTATIVE CONCERNS ENGAGED IN A SIMILAR BUSINESS AND SIMILARLY
CIRCUMSTANCED MAY WITH THE APPROVAL OF THE COMMISSIONER, WHERE
NECESSARY FOR A FAIR COMPARISON, BE SUBSTITUTED IN MAKING THE NECESSARY
COMPUTATIONS."  SEC. 907(C).  CONTENDING THAT THERE WERE NO SIMILARLY
CIRCUMSTANCED CONCERNS, PETITIONER SOUGHT TO USE THE FIGURES OF A LATER
PERIOD, THAT OF ITS OWN 1936 PRODUCTION, IN COMPUTING THE BASE-PERIOD
MARGINS, WHICH WOULD HAVE MADE THOSE MARGINS HIGHER.  WE THINK THE
BOARD AND THE COURT BELOW WERE CORRECT IN HOLDING THAT THE STATUTORY
METHOD OF MAKING A PRIMA FACIE CASE IS EXCLUSIVE AND THAT THE 1936
EVIDENCE MIGHT NOT BE SO USED.  THE STATUTE'S RESTRICTIONS, HOWEVER,
HAVE REFERENCE ONLY TO THE PRESUMPTION; THEY DO NOT EXCLUDE OTHER
EVIDENCE GENERALLY RELEVANT ON THE ISSUE OF WHETHER THE TAX BURDEN WAS
SHIFTED.  THE 1936 EXPERIENCE, THOUGH IT COULD NOT HELP PETITIONER TO
CREATE A FAVORABLE PRESUMPTION, WAS ENTITLED TO BE GIVEN WHATEVER
PROBATIVE VALUE IT MIGHT INDEPENDENTLY HAVE HAD AND, SUBJECT TO THE
USUAL PRINCIPLES OF ADMISSIBILITY, WAS THEREFORE ADMISSIBLE.  ANNISTON
MFG. CO. V. DAVIS, 301 U.S. 337, 355-56. 

THE JUDGMENT BELOW IS MODIFIED AND THE CAUSE IS REMANDED TO THE
CIRCUIT COURT OF APPEALS WITH DIRECTIONS TO REMAND TO THE TAX COURT FOR
PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 

FN1  THIS PROCESSING WAS SUBJECTED TO TAX BY THE ACT OF MAY 9, 1934,
C. 263, 48 STAT. 670, AMENDING THE AGRICULTURAL ADJUSTMENT ACT.  SEE
ESPECIALLY SEC. 9(D)(6)(A) AND (B) OF THE ACT AS AMENDED, 7 U.S.C.
SECS. 609(D)(6)(A), (B). 

FN2  BUT SEE, E.G., MORRISON V. CALIFORNIA, 291 U.S. 82, 88-91; PAGE
V. PHELPS, 108 CONN. 572, 143 A. 890; WEBER V. CHICAGO, R.I. & P.R.
CO., 175 IOWA 358, 151 N.W. 852; BOND V. ST. LOUIS-SAN FRANCISCO R.
CO., 315 MO. 987, 288 S.W. 777; HOLZHEIMER V. LIT BROTHERS, 262 PA.
150, 105 A. 73; MORGAN, INSTRUCTING THE JURY UPON PRESUMPTIONS AND
BURDEN OF PROOF (1933) 47 HARV. L. REV. 59, 77-83, SOME OBSERVATIONS
CONCERNING PRESUMPTIONS (1931) 44 HARV. L. REV. 906; BOHLEN, STUDIES IN
THE LAW OF TORTS (1926) 636, 637, 648-53; AMERICAN LAW INSTITUTE, MODEL
CODE OF EVIDENCE, RULE 703. 

FN3  SEE JOHNSON, AAA REFUNDS:  A STUDY IN TAX INCIDENCE (1937) 37
COL. L. REV. 910. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I DOUBT THAT CONGRESS INTENDED TO INVOLVE THE AWARD OF REFUNDS OF
PROCESSING TAXES IN THE ABSTRUSE LEARNING OF "DISAPPEARING
PRESUMPTIONS."  IN MY OPINION THE TERMS "PRIMA FACIE EVIDENCE" AND
"PRESUMPTION" MAY BE TAKEN TO HAVE BEEN USED INTERCHANGEABLY IN THE
STATUTE.  I THINK NO MORE WAS INTENDED THAN TO AUTHORIZE A FINDING IN
ACCORDANCE WITH THE MARGIN EVIDENCE, IF NO OTHER WERE PRESENTED; AND IN
CASE OPPOSING EVIDENCE SHOULD BE OFFERED, TO ALLOW INFERENCE EITHER WAY
ACCORDING TO THE WEIGHT OF THE PROOF, TAKING INTO ACCOUNT THE MARGIN
EVIDENCE.  HENCE, IN THIS ASPECT OF THE CASE, I WOULD REST ON THE
DECISION OF THE PROCESSING TAX BOARD OF REVIEW, WHICH ON THE RECORD
REASONABLY MAY BE CONSIDERED TO HAVE BEEN REACHED IN THIS MANNER. 

I ALSO THINK THE STATUTE FORBIDS GOING OUTSIDE THE BASE PERIODS
PRESCRIBED FOR COMPARATIVE DATA.  TO HOLD OTHERWISE WOULD NULLIFY THE
BASE PERIOD PROVISIONS OF THE ACT, WHICH I THINK ARE VALID.  THE CAUSE
OF ACTION HERE RESTS ON A WAIVER OF THE SOVEREIGN IMMUNITY TO SUIT
WHICH CONGRESS MAY MAKE UPON SUCH CONDITIONS AS IT CHOOSES.  NICHOLS V.
UNITED STATES, 7 WALL.  122; LUCKENBACH S.S. CO. V. UNITED STATES, 272
U.S. 533, 536; MINNESOTA V. UNITED STATES, 305 U.S. 382, 388.  ALLOWING
IN THE EVIDENCE CONCERNING OTHER PERIODS, THOUGH NOT FOR THE PURPOSE OF
COMPUTING MARGINS, ACCOMPLISHES INDIRECTLY WHAT THE BASE PERIOD
PROVISIONS WERE DESIGNED TO PROHIBIT. 

ACCORDINGLY, I THINK THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
SHOULD BE REVERSED, WITH DIRECTIONS TO AFFIRM THE DECISION OF THE
PROCESSING TAX BOARD OF REVIEW. 

MR. JUSTICE BLACK CONCURS IN THESE VIEWS. 
..END :



MEXICO V. HOFFMAN, 324 U.S. 30 


NO. 455.  ARGUED JANUARY 11, 12, 1945.  - DECIDED FEBRUARY 5, 1945.  -
143 F.2D 854, AFFIRMED. 


1.  THE DECISIONS OF THE TWO COURTS BELOW THAT THE VESSEL IN QUESTION
WAS NOT IN THE POSSESSION OR SERVICE OF THE MEXICAN GOVERNMENT ARE
SUPPORTED BY THE EVIDENCE.  P. 33. 

2.  A MERCHANT VESSEL OWNED BUT NOT POSSESSED BY A FRIENDLY FOREIGN
GOVERNMENT HELD NOT IMMUNE FROM A SUIT IN REM IN ADMIRALTY, WHERE THE
DEPARTMENT OF STATE HAS REFRAINED FROM CERTIFYING THAT IT ALLOWS THE
IMMUNITY OR RECOGNIZES OWNERSHIP OF THE VESSEL WITHOUT POSSESSION BY
THE FOREIGN GOVERNMENT AS A GROUND FOR IMMUNITY.  PP. 36, 38. 

3.  SINCE THE DEPARTMENT OF STATE HAS LONG AND CONSISTENTLY FOLLOWED
THE POLICY OF RECOGNIZING IMMUNITY FROM SUIT OF A VESSEL IN THE
POSSESSION AND SERVICE OF A FOREIGN GOVERNMENT, THE COURTS HAVE ALLOWED
SUCH IMMUNITY UPON PROOF OF SUCH POSSESSION AND USE EVEN WHEN NOT
CERTIFIED BY THE DEPARTMENT OF STATE.  P. 36. 

4.  IT IS THE DUTY OF THE COURTS, IN A MATTER SO INTIMATELY
ASSOCIATED WITH OUR FOREIGN POLICY AND WHICH MAY PROFOUNDLY AFFECT IT,
NOT TO ENLARGE AN IMMUNITY TO AN EXTENT WHICH THE GOVERNMENT, THOUGH IT
HAS HAD NUMEROUS OPPORTUNITIES, HAS NOT SEEN FIT TO RECOGNIZE.  P. 38. 

REPUBLIC OF MEXICO ET AL. V. HOFFMAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 323 U.S. 697, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE LIBELLANT IN A SUIT IN REM IN ADMIRALTY. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER, IN THE ABSENCE OF THE ADOPTION OF ANY
GUIDING POLICY BY THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE FEDERAL
COURTS SHOULD RECOGNIZE THE IMMUNITY FROM A SUIT IN REM IN ADMIRALTY OF
A MERCHANT VESSEL SOLELY BECAUSE IT IS OWNED THOUGH NOT POSSESSED BY A
FRIENDLY FOREIGN GOVERNMENT. 

RESPONDENT, OWNER AND MASTER OF THE LOTTIE CARSON, AN AMERICAN
FISHING VESSEL, FILED A LIBEL IN REM IN THE DISTRICT COURT FOR SOUTHERN
CALIFORNIA AGAINST THE BAJA CALIFORNIA, HER ENGINES, MACHINERY, TACKLE
AND FURNITURE, FOR DAMAGE ALLEGED TO HAVE BEEN CAUSED WHEN THE BAJA
CALIFORNIA NEGLIGENTLY CAUSED HER TOW TO COLLIDE WITH THE LOTTIE CARSON
IN MEXICAN WATERS.  THE MEXICAN AMBASSADOR TO THE UNITED STATES, ACTING
IN BEHALF OF HIS GOVERNMENT, THEREUPON FILED IN THE DISTRICT COURT A
SUGGESTION THAT THE BAJA CALIFORNIA AT ALL TIMES MENTIONED IN THE LIBEL
AND AT THE TIME OF HER SEIZURE WAS OWNED BY THE REPUBLIC OF MEXICO AND
IN ITS POSSESSION, AND ENGAGED IN THE TRANSPORTATION OF CARGOES BETWEEN
THE PORTS OF THE REPUBLIC OF MEXICO AND ELSEWHERE.  LIBELLANT PUT IN
ISSUE THE ALLEGATIONS OF THE SUGGESTION THAT TITLE TO THE BAJA
CALIFORNIA WAS AT ANY TIME IN THE MEXICAN GOVERNMENT AND DENIED THAT
SHE WAS IN THAT GOVERNMENT'S POSSESSION, PUBLIC SERVICE OR USE.  TRIAL
OF THESE ISSUES PROCEEDED UPON STIPULATED EVIDENCE. 

IN THE MEANTIME THE UNITED STATES ATTORNEY FOR THE DISTRICT, ACTING
UNDER THE DIRECTION OF THE ATTORNEY GENERAL, FILED IN THE DISTRICT
COURT A COMMUNICATION FROM THE SECRETARY OF STATE TO THE ATTORNEY
GENERAL, IN WHICH THE STATE DEPARTMENT CALLED ATTENTION TO THE CLAIM OF
THE MEXICAN GOVERNMENT, ALREADY DETAILED.  THE DEPARTMENT TOOK NO
POSITION WITH RESPECT TO THE ASSERTED IMMUNITY OF THE VESSEL FROM SUIT
OTHER THAN TO CITE ERVIN V. QUINTANILLA, 99 F.2D 935, AND COMPANIA
ESPANOLA V. THE NAVEMAR, 303 U.S. 68.  IN ERVIN V. QUINTANILLA, SUPRA,
THE ASSERTED IMMUNITY FROM SUIT OF THE SAN RICARDO, A VESSEL OF THE
MEXICAN GOVERNMENT, WAS ALLOWED BY THE COURT ON THE GROUND THAT AT THE
TIME OF HER SEIZURE UPON A LIBEL IN REM SHE WAS IN THE POSSESSION AND
SERVICE OF THAT GOVERNMENT.  AND IN COMPANIA ESPANOLA V. THE NAVEMAR,
SUPRA, THE STATE DEPARTMENT HAVING FAILED TO RECOGNIZE THE CLAIMED
IMMUNITY OF THE SPANISH VESSEL NAVEMAR, ALLEGED TO HAVE BEEN
EXPROPRIATED BY AND IN THE POSSESSION OF THE FRIENDLY REPUBLIC OF SPAIN
AT THE TIME OF HER SEIZURE UPON A LIBEL IN REM, THIS COURT DENIED THE
CLAIMED IMMUNITY ON THE GROUND THAT THE LIBELLED VESSEL WAS NOT SHOWN
TO HAVE BEEN IN THE POSSESSION AND PUBLIC SERVICE OF THE FOREIGN
GOVERNMENT. 

THE DISTRICT COURT WAS UNABLE TO FIND, UNDER THE RULE OF THE NAVEMAR,
SUPRA, ANY GROUND FOR RELINQUISHING THE JURISDICTION OVER THE VESSEL,
AND ACCORDINGLY DENIED THE CLAIM OF IMMUNITY.  THE MEXICAN GOVERNMENT
THEN FILED AN ANSWER TO THE LIBEL BY WHICH IT PUT IN ISSUE THE MATERIAL
ALLEGATIONS OF THE LIBEL ON THE MERITS AND RENEWED ITS CLAIM OF
SOVEREIGN IMMUNITY FROM THE SUIT.  THE COURT THEN PROCEEDED WITH THE
TRIAL ON THE MERITS. 

A SECOND SUGGESTION WAS THEN FILED BY THE UNITED STATES ATTORNEY AT
THE DIRECTION OF THE ATTORNEY GENERAL, TRANSMITTING A COMMUNICATION
FROM THE STATE DEPARTMENT, STATING THAT IT ACCEPTED AS TRUE THE
CONTENTION THAT THE BAJA CALIFORNIA WAS THE PROPERTY OF THE MEXICAN
GOVERNMENT AND THAT IT RECOGNIZED A STATEMENT BY THE MEXICAN AMBASSADOR
THAT HIS GOVERNMENT WOULD MEET ANY LIABILITY DECREED AGAINST THE VESSEL
AS A BINDING INTERNATIONAL UNDERTAKING.  THE DISTRICT COURT DENIED THE
CLAIM OF IMMUNITY, FINDING THAT THE SHIP WAS IN "THE POSSESSION,
OPERATION, AND CONTROL" OF THE COMPANIA MEXICANA DE NAVIGACION DEL
PACIFICO, S. DE R.L.  THIS WAS A PRIVATELY OWNED AND OPERATED MEXICAN
CORPORATION ENGAGED IN THE COMMERCIAL CARRIAGE OF CARGOES FOR HIRE FOR
PRIVATE SHIPPERS.  ON THE MERITS THE DISTRICT COURT GAVE JUDGMENT FOR
THE LIBELLANT. 

THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED, 143 F.2D
854, HOLDING ON THE AUTHORITY OF THE NAVEMAR, SUPRA, AND THE KATINGO
HADJIPATERA, 119 F.2D 1022, THAT THE BAJA CALIFORNIA, ALTHOUGH OWNED BY
THE MEXICAN GOVERNMENT, WAS NOT IMMUNE FROM SUIT BECAUSE NOT IN ITS
POSSESSION AND SERVICE.  WE GRANTED CERTIORARI, 323 U.S. 697, ON A
PETITION WHICH PRESENTED THE QUESTION WHETHER TITLE OF THE VESSEL
WITHOUT POSSESSION IN THE MEXICAN GOVERNMENT IS SUFFICIENT TO CALL FOR
JUDICIAL RECOGNITION OF THE ASSERTED IMMUNITY. 

THE DECISIONS OF THE TWO COURTS BELOW THAT THE VESSEL WAS NOT IN THE
POSSESSION OR SERVICE OF THE MEXICAN GOVERNMENT ARE SUPPORTED BY
EVIDENCE AND CALL FOR NO EXTENDED REVIEW HERE.  IT IS SUFFICIENT THAT
IT APPEARS THAT BEFORE THE INJURY TO THE LOTTIE CARSON THE BAJA
CALIFORNIA WAS DELIVERED BY THE MEXICAN GOVERNMENT TO THE PRIVATELY
OWNED AND OPERATED MEXICAN CORPORATION UNDER A CONTRACT FOR A TERM OF
FIVE YEARS.  AS PROVIDED BY THE CONTRACT THE CORPORATION WAS TO OPERATE
THE VESSEL AT ITS OWN EXPENSE IN A PRIVATE FREIGHTING VENTURE ON THE
HIGH SEAS BETWEEN MEXICAN PORTS AND BETWEEN THEM AND FOREIGN PORTS, AND
DID SO OPERATE THE VESSEL UNTIL HER SEIZURE UPON THE LIBEL.  THE
OFFICERS AND CREW WERE SELECTED, CONTROLLED AND PAID BY THE
CORPORATION.  FOR THE USE OF THE VESSEL THE CORPORATION AGREED TO PAY
TO THE MEXICAN GOVERNMENT FIFTY PER CENT OF THE NET PROFITS OF
OPERATIONS BUT UNDERTOOK TO BEAR ALL NET LOSSES. 

THE PRINCIPAL CONTENTION OF PETITIONER IS THAT OUR COURTS SHOULD
RECOGNIZE THE TITLE OF THE MEXICAN GOVERNMENT AS A GROUND FOR IMMUNITY
FROM SUIT EVEN THOUGH THE VESSEL WAS NOT IN THE POSSESSION AND PUBLIC
SERVICE OF THAT GOVERNMENT.  EVER SINCE THE EXCHANGE, 7 CRANCH 116,
THIS GOVERNMENT HAS RECOGNIZED SUCH IMMUNITY FROM SUIT, OF A VESSEL IN
THE POSSESSION AND SERVICE OF A FRIENDLY FOREIGN GOVERNMENT,
L'INVINCIBLE, 1 WHEAT.  238, 252; THE DIVINA PASTORA, 4 WHEAT.  52, 64;
UNITED STATES V. CORNELL STEAMBOAT CO., 202 U.S. 184, 190; EX PARTE
MUIR, 254 U.S. 522, 531-533; THE PESARO, 255 U.S. 216, 219; EX PARTE
NEW YORK, 256 U.S. 503, 510; COMPANIA ESPANOLA V. THE NAVEMAR, SUPRA,
74; EX PARTE PERU, 318 U.S. 578, 588, A PRACTICE WHICH SEEMS TO HAVE
BEEN FOLLOWED WITHOUT SERIOUS DIFFICULTIES TO THE COURTS OR
EMBARRASSMENT TO THE EXECUTIVE BRANCH OF THE GOVERNMENT.  AND IN THE
EXCHANGE, CHIEF JUSTICE MARSHALL INTRODUCED THE PRACTICE, SINCE
FOLLOWED IN THE FEDERAL COURTS, THAT THEIR JURISDICTION IN REM ACQUIRED
BY THE JUDICIAL SEIZURE OF THE VESSEL OF A FRIENDLY FOREIGN GOVERNMENT,
WILL BE SURRENDERED ON RECOGNITION, ALLOWANCE AND CERTIFICATION OF THE
ASSERTED IMMUNITY BY THE POLITICAL BRANCH OF THE GOVERNMENT CHARGED
WITH THE CONDUCT OF FOREIGN AFFAIRS WHEN ITS CERTIFICATE TO THAT EFFECT
IS PRESENTED TO THE COURT BY THE ATTORNEY GENERAL.  UNITED STATES V.
LEE, 106 U.S. 196, 209; EX PARTE MUIR, SUPRA, 533; THE PESARO, SUPRA,
217; COMPANIA ESPANOLA V. THE NAVEMAR, SUPRA, 74; EX PARTE PERU, SUPRA,
588.  THIS PRACTICE IS FOUNDED UPON THE POLICY RECOGNIZED BOTH BY THE
DEPARTMENT OF STATE AND THE COURTS THAT THE NATIONAL INTERESTS WILL BE
BEST SERVED WHEN CONTROVERSIES GROWING OUT OF THE JUDICIAL SEIZURE OF
VESSELS OF FRIENDLY FOREIGN GOVERNMENTS ARE ADJUSTED THROUGH DIPLOMATIC
CHANNELS RATHER THAN BY THE COMPULSION OF JUDICIAL PROCEEDINGS. 
COMPANIA ESPANOLA V. THE NAVEMAR, SUPRA; EX PARTE PERU, SUPRA. 

IN THE ABSENCE OF RECOGNITION OF THE CLAIMED IMMUNITY BY THE POLITICAL
BRANCH OF THE GOVERNMENT, THE COURTS MAY DECIDE FOR THEMSELVES WHETHER
ALL THE REQUISITES OF IMMUNITY EXIST.  THAT IS TO SAY, IT IS FOR THEM
TO DECIDE WHETHER THE VESSEL WHEN SEIZED WAS THAT OF A FOREIGN
GOVERNMENT AND WAS OF A CHARACTER AND OPERATED UNDER CONDITIONS
ENTITLING IT TO THE IMMUNITY IN CONFORMITY TO THE PRINCIPLES ACCEPTED
BY THE DEPARTMENT OF THE GOVERNMENT CHARGED WITH THE CONDUCT OF OUR
FOREIGN RELATIONS.  SEE EX PARTE PERU, SUPRA, 588. 

EVERY JUDICIAL ACTION EXERCISING OR RELINQUISHING JURISDICTION OVER
THE VESSEL OF A FOREIGN GOVERNMENT HAS ITS EFFECT UPON OUR RELATIONS
WITH THAT GOVERNMENT.  HENCE IT IS A GUIDING PRINCIPLE IN DETERMINING
WHETHER A COURT SHOULD EXERCISE OR SURRENDER ITS JURISDICTION IN SUCH
CASES, THAT THE COURTS SHOULD NOT SO ACT AS TO EMBARRASS THE EXECUTIVE
ARM IN ITS CONDUCT OF FOREIGN AFFAIRS.  "IN SUCH CASES THE JUDICIAL
DEPARTMENT OF THIS GOVERNMENT FOLLOWS THE ACTION OF THE POLITICAL
BRANCH, AND WILL NOT EMBARRASS THE LATTER BY ASSUMING AN ANTAGONISTIC
JURISDICTION."  UNITED STATES V. LEE, SUPRA, 209; EX PARTE PERU, SUPRA,
588. 

IT IS THEREFORE NOT FOR THE COURTS TO DENY AN IMMUNITY WHICH OUR
GOVERNMENT HAS SEEN FIT TO ALLOW, OR TO ALLOW AN IMMUNITY ON NEW
GROUNDS WHICH THE GOVERNMENT HAS NOT SEEN FIT TO RECOGNIZE.  FN1  THE
JUDICIAL SEIZURE OF THE PROPERTY OF A FRIENDLY STATE MAY BE REGARDED AS
SUCH AN AFFRONT TO ITS DIGNITY AND MAY SO AFFECT OUR RELATIONS WITH IT,
THAT IT IS AN ACCEPTED RULE OF SUBSTANTIVE LAW GOVERNING THE EXERCISE
OF THE JURISDICTION OF THE COURTS THAT THEY ACCEPT AND FOLLOW THE
EXECUTIVE DETERMINATION THAT THE VESSEL SHALL BE TREATED AS IMMUNE.  EX
PARTE PERU, SUPRA, 588.  BUT RECOGNITION BY THE COURTS OF AN IMMUNITY
UPON PRINCIPLES WHICH THE POLITICAL DEPARTMENT OF GOVERNMENT HAS NOT
SANCTIONED MAY BE EQUALLY EMBARRASSING TO IT IN SECURING THE PROTECTION
OF OUR NATIONAL INTERESTS AND THEIR RECOGNITION BY OTHER NATIONS. 

WHEN SUCH A SEIZURE OCCURS THE FRIENDLY FOREIGN GOVERNMENT MAY ADOPT
THE PROCEDURE OF ASKING THE STATE DEPARTMENT TO ALLOW IT.  BUT THE
FOREIGN GOVERNMENT MAY ALSO PRESENT ITS CLAIM OF IMMUNITY BY APPEARANCE
IN THE SUIT AND BY WAY OF DEFENSE TO THE LIBEL.  IN SUCH A CASE THE
COURT WILL INQUIRE WHETHER THE GROUND OF IMMUNITY IS ONE WHICH IT IS
THE ESTABLISHED POLICY OF THE DEPARTMENT TO RECOGNIZE.  EX PARTE MUIR,
SUPRA, 533; COMPANIA ESPANOLA V. THE NAVEMAR, SUPRA, 74.  SUCH A
POLICY, LONG AND CONSISTENTLY RECOGNIZED AND OFTEN CERTIFIED BY THE
STATE DEPARTMENT AND FOR THAT REASON ACTED UPON BY THE COURTS EVEN WHEN
NOT SO CERTIFIED, IS THAT OF ALLOWING THE IMMUNITY FROM SUIT OF A
VESSEL IN THE POSSESSION AND SERVICE OF A FOREIGN GOVERNMENT. 

IT HAS BEEN HELD BELOW, AS IN THE NAVEMAR, TO BE DECISIVE OF THE CASE
THAT THE VESSEL WHEN SEIZED BY JUDICIAL PROCESS WAS NOT IN THE
POSSESSION AND SERVICE OF THE FOREIGN GOVERNMENT.  HERE BOTH COURTS
HAVE FOUND THAT THE REPUBLIC OF MEXICO IS THE OWNER OF THE SEIZED
VESSEL.  THE STATE DEPARTMENT HAS CERTIFIED THAT IT RECOGNIZES SUCH
OWNERSHIP, BUT IT HAS REFRAINED FROM CERTIFYING THAT IT ALLOWS THE
IMMUNITY OR RECOGNIZES OWNERSHIP OF THE VESSEL WITHOUT POSSESSION BY
THE MEXICAN GOVERNMENT AS A GROUND FOR IMMUNITY.  IT DOES NOT APPEAR
THAT THE DEPARTMENT HAS EVER ALLOWED A CLAIM OF IMMUNITY ON THAT
GROUND, AND WE ARE CITED TO NO CASE IN WHICH A FEDERAL COURT HAS DONE
SO.  IN THE DAVIS, 10 WALL.  15, THIS COURT HELD THAT A SALVAGE LIEN
WAS ENFORCIBLE AGAINST PROPERTY BELONGING TO BUT NOT IN ACTUAL
POSSESSION OF THE UNITED STATES, AND IN THIS IT FOLLOWED A DECISION OF
JUDGE STORY IN UNITED STATES V. WILDER, FED. CAS. NO. 16,694.  AND IN
THE FIDELITY, FED. CAS. NO. 4,758, CHIEF JUSTICE WAITE SAID OF THE
RULING OF THE DAVIS:  "PROPERTY DOES NOT NECESSARILY BECOME A PART OF
THE SOVEREIGNTY BECAUSE IT IS OWNED BY THE SOVEREIGN.  TO MAKE IT SO IT
MUST BE DEVOTED TO THE PUBLIC USE AND MUST BE EMPLOYED IN CARRYING ON
THE OPERATIONS OF THE GOVERNMENT." 

IN THE CASE OF THE NAVEMAR, SUPRA, THE SPANISH AMBASSADOR ASSERTED ON
BEHALF OF THE SPANISH REPUBLIC THAT THE SEIZED VESSEL WAS THE PROPERTY
OF THE REPUBLIC, ACQUIRED BY EXPROPRIATION FROM A SPANISH NATIONAL, BUT
THE CLAIM OF IMMUNITY WHICH HAD NOT BEEN RECOGNIZED BY OUR GOVERNMENT
WAS REJECTED BY THE COURT ON THE GROUND THAT THE SPANISH GOVERNMENT WAS
NOT IN POSSESSION OF THE VESSEL AT THE TIME OF HER ARREST.  FN2 

THE LOWER FEDERAL COURTS HAVE CONSISTENTLY REFUSED TO ALLOW CLAIMS OF
IMMUNITY BASED ON TITLE OF THE CLAIMANT FOREIGN GOVERNMENT WITHOUT
POSSESSION, BOTH BEFORE THE NAVEMAR, SUPRA, LONG V. THE TAMPICO, 16 F.
491, 493, 494(OPINION BY JUDGE ADDISON BROWN); THE JOHNSON LIGHTERAGE
CO. NO. 24, 231 F. 365; THE ATTUALITA, 238 F. 909; THE CARLO POMA, 259
F. 369, 370, REVERSED ON OTHER GROUNDS, 255 U.S. 219; THE BEAVERTON,
273 F. 539, 540; AND SINCE, ERVIN V. QUINTANILLA, SUPRA, 941; THE
UXMAL, 40 F.SUPP.  258, 260; THE KATINGO HADJIPATERA, 40 F.SUPP.  546,
119 F.2D 1022; THE LJUBICA MATKOVIC, 49 F.SUPP.  936. 

WHETHER THIS DISTINCTION BETWEEN POSSESSION AND TITLE MAY BE THOUGHT
TO DEPEND UPON THE AGGRAVATION OF THE INDIGNITY WHERE THE INTERFERENCE
WITH THE VESSEL OUSTS THE POSSESSION OF A FOREIGN STATE, SULLIVAN V.
SAO PAULO, 122 F.2D 355, 360, IT IS PLAIN THAT THE DISTINCTION IS
SUPPORTED BY THE OVERWHELMING WEIGHT OF AUTHORITY.  MORE IMPORTANT, AND
WE THINK CONTROLLING IN THE PRESENT CIRCUMSTANCES, IS THE FACT THAT,
DESPITE NUMEROUS OPPORTUNITIES LIKE THE PRESENT TO RECOGNIZE IMMUNITY
FROM SUIT OF A VESSEL OWNED AND NOT POSSESSED BY A FOREIGN GOVERNMENT,
THIS GOVERNMENT HAS FAILED TO DO SO.  WE CAN ONLY CONCLUDE THAT IT IS
THE NATIONAL POLICY NOT TO EXTEND THE IMMUNITY IN THE MANNER NOW
SUGGESTED, AND THAT IT IS THE DUTY OF THE COURTS, IN A MATTER SO
INTIMATELY ASSOCIATED WITH OUR FOREIGN POLICY AND WHICH MAY PROFOUNDLY
AFFECT IT, NOT TO ENLARGE AN IMMUNITY TO AN EXTENT WHICH THE
GOVERNMENT, ALTHOUGH OFTEN ASKED, HAS NOT SEEN FIT TO RECOGNIZE.  WE
HAVE CONSIDERED BUT DO NOT FIND IT NECESSARY TO DISCUSS OTHER
CONTENTIONS OF PETITIONER, AS THEY ARE WITHOUT MERIT.  AFFIRMED.    FN1
THIS SALUTARY PRINCIPLE WAS NOT FOLLOWED IN BERIZZI BROS. CO. V. THE
PESARO, 271 U.S. 562, WHERE THE COURT ALLOWED THE IMMUNITY, FOR THE
FIRST TIME, TO A MERCHANT VESSEL OWNED BY A FOREIGN GOVERNMENT AND IN
ITS POSSESSION AND SERVICE, ALTHOUGH THE STATE DEPARTMENT HAD DECLINED
TO RECOGNIZE THE IMMUNITY.  THE PROPRIETY OF THUS EXTENDING THE
IMMUNITY WHERE THE POLITICAL BRANCH OF THE GOVERNMENT HAD REFUSED TO
ACT WAS NOT CONSIDERED. 

SINCE THE VESSEL HERE, ALTHOUGH OWNED BY THE MEXICAN GOVERNMENT, WAS
NOT IN ITS POSSESSION AND SERVICE, WE HAVE NO OCCASION TO CONSIDER THE
QUESTIONS PRESENTED IN THE BERIZZI CASE.  IT IS ENOUGH THAT WE FIND NO
PERSUASIVE GROUND FOR ALLOWING THE IMMUNITY IN THIS CASE, AN IMPORTANT
REASON BEING THAT THE STATE DEPARTMENT HAS DECLINED TO RECOGNIZE IT. 

FN2  THE CRISTINA, (1938) A.C. 485, IN WHICH THE IMMUNITY WAS
RECOGNIZED, SEEMS TO HAVE PROCEEDED ON THE GROUND THAT THE POSSESSION
TAKEN IN BEHALF OF THE FRIENDLY FOREIGN GOVERNMENT WAS ACTUAL. 
SIMILARLY IN THE ARANTZAZU MENDI, (1939) A.C. 256, 263, THE SOVEREIGN
WAS "IN FACT IN POSSESSION OF THE SHIP."  IN THE JUPITER, (1924) P.
236, 241, 244(CF. THE JUPITER NO. 2, (1925) P. 69; THE JUPITER NO. 3,
(1927) P. 122, 125), IT APPEARED THAT BEFORE THE SUIT WAS BROUGHT THE
MASTER HAD REPUDIATED THE POSSESSION AND OWNERSHIP OF THE PLAINTIFFS
AND HELD THE VESSEL FOR THE CLAIMANT GOVERNMENT.  AND IN THE PORTO
ALEXANDRE, (1920) P. 30, 34, THE VESSEL HAD BEEN REQUISITIONED UNDER
THE ORDER OF THE FOREIGN GOVERNMENT AND ON THE PARTICULAR VOYAGE WAS
CARRYING FREIGHT FOR THAT GOVERNMENT.  IN THE ANNETTE; THE DORA, (1919)
P. 105, 111, AN ALTERNATIVE GROUND OF DECISION WAS THAT THE SOVEREIGN
HAD PARTED WITH POSSESSION.  THE COURT SAID:  "IF IT IS NOT IN
POSSESSION, THE COURT INTERFERES WITH NO SOVEREIGN RIGHT OF THE
GOVERNMENT BY ARRESTING THE VESSEL, NOR DOES IT, BY ARRESTING THE
VESSEL, COMPEL THE GOVERNMENT TO SUBMIT TO THE JURISDICTION OR TO
ABANDON ITS POSSESSION." 

MR. JUSTICE FRANKFURTER, CONCURRING. 

IN BERIZZI BROS. CO. V. THE PESARO, 271 U.S. 562, THIS COURT HELD FOR
THE FIRST TIME THAT "MERCHANT SHIPS OWNED AND OPERATED BY A FOREIGN
GOVERNMENT HAVE THE SAME IMMUNITY THAT WARSHIPS HAVE."  IT DID SO NOT
BECAUSE THE DEPARTMENT OF STATE BY APPROPRIATE SUGGESTION OR THROUGH
ITS ESTABLISHED POLICY HAD INDICATED THAT DUE REGARD FOR OUR
INTERNATIONAL RELATIONS COUNSELED SUCH AN ABNEGATION OF JURISDICTION
OVER GOVERNMENT-OWNED MERCHANTMEN.  ON THE CONTRARY.  IN ANSWER TO AN
INQUIRY BY JUDGE MACK, BEFORE WHOM THE PESARO'S CLAIM TO IMMUNITY WAS
FIRST RAISED, THE DEPARTMENT OF STATE TOOK THIS POSITION:  "IT IS THE
VIEW OF THE DEPARTMENT THAT GOVERNMENT-OWNED MERCHANT VESSELS OR
VESSELS UNDER REQUISITION OF GOVERNMENTS WHOSE FLAG THEY FLY EMPLOYED
IN COMMERCE SHOULD NOT BE REGARDED AS ENTITLED TO THE IMMUNITIES
ACCORDED PUBLIC VESSELS OF WAR.  THE DEPARTMENT HAS NOT CLAIMED
IMMUNITY FOR AMERICAN VESSELS OF THIS CHARACTER."  THE PESARO, 277 F.
473, 479-480, NOTE 3; AND SEE 2 HACKWORTH, DIGEST OF INTERNATIONAL LAW,
PP. 429-430, 438-439.  THUS, IN BERIZZI BROS. CO. V. THE PESARO, SUPRA,
THIS COURT FELT FREE TO REJECT THE STATE DEPARTMENT'S VIEWS ON
INTERNATIONAL POLICY AND TO FORMULATE ITS OWN JUDGMENT ON WHAT WISE
INTERNATIONAL RELATIONS DEMANDED.  THE COURT NOW SEEMS TO INDICATE,
HOWEVER, THAT WHEN, UPON THE SEIZURE OF A VESSEL OF A FOREIGN
GOVERNMENT, SOVEREIGN IMMUNITY IS CLAIMED, THE ISSUE IS WHETHER THE
VESSEL "WAS OF A CHARACTER AND OPERATED UNDER CONDITIONS ENTITLING IT
TO THE IMMUNITY IN CONFORMITY WITH THE PRINCIPLES ACCEPTED BY THE
DEPARTMENT OF THE GOVERNMENT CHARGED WITH THE CONDUCT OF OUR FOREIGN
RELATIONS." 

IF THIS BE AN IMPLIED RECESSION FROM THE DECISION IN BERIZZI BROS.
CO. V. THE PESARO, I HEARTILY WELCOME IT.  ADJUDICATION SHOULD NOT
BORROW TROUBLE BY WORRYING ABOUT A CASE NOT CALLING FOR DECISION.  IT
IS FOR ME NOT BORROWING TROUBLE TO RAISE THE RELATION OF THE PESARO
DECISION TO THE SITUATION NOW BEFORE THE COURT.  I APPRECIATE THAT THE
DISPOSITION OF THE PRESENT CASE TURNS ON THE WANT OF POSSESSION BY THE
REPUBLIC OF MEXICO.  MY DIFFICULTY IS THAT "POSSESSION" IS TOO TENUOUS
A DISTINCTION ON THE BASIS OF WHICH TO DIFFERENTIATE BETWEEN FOREIGN
GOVERNMENT-OWNED VESSELS ENGAGED MERELY IN TRADE THAT ARE IMMUNE FROM
SUIT AND THOSE THAT ARE NOT.  POSSESSION, ACTUAL OR CONSTRUCTIVE, IS A
LEGAL CONCEPT FULL OF PITFALLS.  EVEN WHERE ONLY PRIVATE INTERESTS ARE
INVOLVED THE DETERMINATION OF POSSESSION, AS BANKRUPTCY CASES, FOR
INSTANCE, ABUNDANTLY PROVE, ENGENDERS MUCH CONFUSION AND CONFLICT. 
ASCERTAINMENT OF WHAT CONSTITUTES POSSESSION OR WHERE IT IS, IS TOO
SUBTLE AND PRECARIOUS A TASK FOR TRANSFER TO A FIELD IN WHICH
INTERNATIONAL INTERESTS AND SUSCEPTIBILITIES ARE INVOLVED. 

IF THE REPUBLIC OF MEXICO NOW SAW FIT TO PUT ONE JUNIOR NAVAL OFFICER
ON MERCHANTMEN WHICH IT OWNS BUT ARE OPERATED BY A PRIVATE AGENCY UNDER
ARRANGEMENTS GIVING THAT GOVERNMENT A FINANCIAL INTEREST IN THE
VENTURE, IT WOULD, I SHOULD SUPPOSE, BE EMBARRASSING TO FIND THAT
MEXICO HERSELF DID NOT INTEND TO BE IN POSSESSION OF SUCH SHIPS.  AND,
CERTAINLY, THE TERMS OF THE FINANCIAL ARRANGEMENT BY WHICH THE
COMMERCIAL ENTERPRISE BEFORE THE COURT IS CARRIED ON CAN READILY BE
VARIED WITHOUT MUCH CHANGE IN SUBSTANCE TO MANIFEST A RELATION TO THE
SHIP BY MEXICO WHICH COULD NOT EASILY BE DEEMED TO DISCLOSE A WANT OF
POSSESSION BY MEXICO. 

THE FACT OF THE MATTER IS THAT THE RESULT IN BERIZZI BROS. CO. V. THE
PESARO, SUPRA, WAS REACHED WITHOUT SUBMISSION BY THE DEPARTMENT OF
STATE OF ITS RELEVANT POLICIES IN THE CONDUCT OF OUR FOREIGN RELATIONS
AND LARGELY ON THE BASIS OF CONSIDERATIONS WHICH HAVE STEADILY LOST
WHATEVER VALIDITY THEY MAY THEN HAVE HAD.  COMPARE THE OVERRULING OF
THE THOMAS JEFFERSON, 10 WHEAT.  428(1825), BY THE GENESEE CHIEF, 12
HOW.  443(1851).  THE VIEWS OF OUR STATE DEPARTMENT AGAINST IMMUNITY
FOR COMMERCIAL SHIPS OWNED BY FOREIGN GOVERNMENTS HAVE BEEN STRONGLY
SUPPORTED BY INTERNATIONAL CONFERENCES, SOME HELD AFTER THE DECISION IN
THE PESARO CASE.  SEE LORD MAUGHAM IN COMPANIA NAVIERA VASCONGADO V.
THE CRISTINA (1938) A.C. 485, 521-523.  BUT THE REAL CHANGE HAS BEEN
THE ENORMOUS GROWTH, PARTICULARLY IN RECENT YEARS, OF "ORDINARY
MERCHANDISING" ACTIVITY BY GOVERNMENTS.  SEE THE WESTERN MAID, 257 U.S.
419, 432.  LORD MAUGHAM IN THE CRISTINA THUS PUT THE MATTER: 

"HALF A CENTURY AGO FOREIGN GOVERNMENTS VERY SELDOM EMBARKED IN TRADE
WITH ORDINARY SHIPS, THOUGH THEY NOT INFREQUENTLY OWNED VESSELS
DESTINED FOR PUBLIC USES, AND IN PARTICULAR HOSPITAL VESSELS, SUPPLY
SHIPS AND SURVEYING OR EXPLORING VESSELS.  THESE WERE DOUBTLESS VERY
STRONG REASONS FOR EXTENDING THE PRIVILEGE LONG POSSESSED BY SHIPS OF
WAR TO PUBLIC SHIPS OF THE NATURE MENTIONED; BUT THERE HAS BEEN A VERY
LARGE DEVELOPMENT OF STATE-OWNED COMMERCIAL SHIPS SINCE THE GREAT WAR,
AND THE QUESTION WHETHER THE IMMUNITY SHOULD CONTINUE TO BE GIVEN TO
ORDINARY TRADING SHIPS HAS BECOME ACUTE.  IS IT CONSISTENT WITH
SOVEREIGN DIGNITY TO ACQUIRE A TRAMP STEAMER AND TO COMPETE WITH
ORDINARY SHIPPERS AND SHIP-OWNERS IN THE MARKETS OF THE WORLD?  DOING
SO, IS IT CONSISTENT TO SET UP THE IMMUNITY OF A SOVEREIGN IF, OWING TO
THE WANT OF SKILL OF CAPTAIN AND CREW, SERIOUS DAMAGE IS CAUSED TO THE
SHIP OF ANOTHER COUNTRY?  IS IT ALSO CONSISTENT TO REFUSE TO PERMIT
PROCEEDINGS TO ENFORCE A RIGHT OF SALVAGE IN RESPECT OF SERVICES
RENDERED, PERHAPS AT GREAT RISK, BY THE VESSEL OF ANOTHER COUNTRY?" 
(1938) A.C. 485, 521-522. 

AND SO, SENSIBLE AS I AM OF THE WEIGHT TO WHICH THE DECISION IN THE
PESARO IS ENTITLED, ITS IMPLICATIONS IN THE LIGHT OF THE IMPORTANT
DEVELOPMENTS IN THE INTERNATIONAL SCENE THAT TWENTY YEARS HAVE BROUGHT
CALL FOR ITS RECONSIDERATION.  THE DEPARTMENT OF STATE, IN ACTING UPON
VIEWS SUCH AS THOSE EXPRESSED BY LORD MAUGHAM, SHOULD NO LONGER BE
EMBARRASSED BY HAVING THE DECISION IN THE PESARO REMAIN UNQUESTIONED,
AND THE LOWER COURTS SHOULD BE RELIEVED FROM THE DUTY OF DRAWING
DISTINCTIONS THAT ARE TOO NICE TO DRAW. 

IT IS MY VIEW, IN SHORT, THAT COURTS SHOULD NOT DISCLAIM JURISDICTION
WHICH OTHERWISE BELONGS TO THEM IN RELATION TO VESSELS OWNED BY FOREIGN
GOVERNMENTS HOWEVER OPERATED EXCEPT WHEN "THE DEPARTMENT OF THE
GOVERNMENT CHARGED WITH THE CONDUCT OF OUR FOREIGN RELATIONS," OR OF
COURSE CONGRESS, EXPLICITLY ASSERTS THAT THE PROPER CONDUCT OF THESE
RELATIONS CALLS FOR JUDICIAL ABSTENTION.  THEREBY RESPONSIBILITY FOR
THE CONDUCT OF OUR FOREIGN RELATIONS WILL BE PLACED WHERE POWER LIES. 
AND UNLESS CONSTRAINED BY THE ESTABLISHED POLICY OF OUR STATE
DEPARTMENT, COURTS WILL BEST DISCHARGE THEIR RESPONSIBILITY BY
ENFORCEMENT OF THE REGULAR JUDICIAL PROCESSES. 

MR. JUSTICE BLACK JOINS IN THIS OPINION. 
..END :










HOUSE V. MAYO, 324 U.S. 42 


NO. 921.  DECIDED FEBRUARY 5, 1945.  - CERTIORARI GRANTED - DECISIONS
BELOW REVERSED. 


A PETITION TO THE FEDERAL DISTRICT COURT FOR A WRIT OF HABEAS CORPUS,
BY ONE CONFINED UNDER A STATE COURT SENTENCE FOR BURGLARY, ALLEGED THAT
THE TRIAL COURT, WITHOUT WARNING AND OVER THE PETITIONER'S PROTESTS,
FORCED HIM TO PLEAD TO THE INFORMATION WITHOUT THE AID AND ADVICE OF
HIS COUNSEL, WHOSE PRESENCE HE REQUESTED.  THE DISTRICT JUDGE DENIED
THE PETITION AND ALSO DENIED A CERTIFICATE OF PROBABLE CAUSE FOR AN
APPEAL UNDER 28 U.S.C. SEC. 466.  THE CIRCUIT COURT OF APPEALS DENIED A
TIMELY APPLICATION FOR ALLOWANCE OF AN APPEAL.  HELD: 

1.  THE CASE IS REVIEWABLE HERE BY CERTIORARI NOT UNDER SEC. 240(A)
BUT UNDER SEC. 262 OF THE JUDICIAL CODE.  P. 44. 

2.  REVIEW HERE BY CERTIORARI UNDER SEC. 262 EXTENDS NOT ONLY TO THE
QUESTION WHETHER THE CIRCUIT COURT OF APPEALS ABUSED ITS DISCRETION IN
REFUSING TO ALLOW THE APPEAL BUT ALSO TO QUESTIONS ON THE MERITS SOUGHT
TO BE RAISED BY THE APPEAL.  P. 44. 

3.  THE PETITION FOR HABEAS CORPUS SUFFICIENTLY ALLEGED A DENIAL OF
THE PETITIONER'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.  P. 46. 

4.  THE DECISION OF THE DISTRICT COURT DENYING HABEAS CORPUS ON THE
GROUND THAT THE QUESTIONS SOUGHT TO BE RAISED HAD BEEN FAIRLY
ADJUDICATED BY THE STATE COURTS WAS UNSUPPORTED, SINCE THE BASIS OF THE
STATE COURT DECISIONS RELIED ON WAS IN EACH INSTANCE THAT THE
PARTICULAR REMEDY SOUGHT WAS NOT ONE PROVIDED BY STATE LAW.  P. 47. 

5.  WHERE A STATE COURT ADJUDICATES THE MERITS OF A STATE PRISONER'S
FEDERAL QUESTIONS, AND THIS COURT EITHER REVIEWS OR DECLINES TO REVIEW
ITS DECISION, A FEDERAL COURT WILL NOT ORDINARILY REEXAMINE ON HABEAS
CORPUS THE QUESTIONS THUS ADJUDICATED.  BUT THAT RULE IS INAPPLICABLE
WHEN THE BASIS OF THE STATE COURT'S DECISION IS THAT THE PARTICULAR
REMEDY SOUGHT IS ONE WHICH THE STATE LAW DOES NOT PROVIDE.  P. 48. 

6.  THE CIRCUIT COURT OF APPEALS ERRED IN NOT CONSIDERING WHETHER THE
CASE WAS AN APPROPRIATE ONE FOR A CERTIFICATE OF PROBABLE CAUSE UNDER
28 U.S.C. SEC. 466, AND ALSO IN NOT ISSUING THE CERTIFICATE.  P. 48. 

7.  THE MOTION FOR LEAVE TO FILE A PETITION FOR HABEAS CORPUS IN THIS
COURT IS DENIED AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THE OPINION OF THIS COURT.  P.
48. 

HOUSE V. MAYO, STATE PRISON CUSTODIAN. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS AND
PETITION FOR WRIT OF CERTIORARI. 

PER CURIAM. 

PETITIONER IS CONFINED IN THE FLORIDA STATE PRISON UNDER SENTENCE FOR
BURGLARY.  HE FILED A PETITION FOR HABEAS CORPUS IN THE UNITED STATES
DISTRICT COURT FOR SOUTHERN FLORIDA, WHICH DENIED THE PETITION WITHOUT
CALLING FOR A RETURN AND WITHOUT A HEARING.  THE DISTRICT JUDGE ALSO
DENIED A CERTIFICATE OF PROBABLE CAUSE FOR AN APPEAL TO THE CIRCUIT
COURT OF APPEALS UNDER 28 U.S.C. SEC. 466.  SECTION 466 REQUIRES SUCH A
CERTIFICATE FOR AN APPEAL FROM A JUDGMENT DENYING A PETITION FOR HABEAS
CORPUS WHEN THE PETITION COMPLAINS OF "DETENTION  ...  BY VIRTUE OF
PROCESS ISSUED OUT OF A STATE COURT."  SINCE THE STATUTE AUTHORIZES
EITHER THE DISTRICT COURT OR "A JUDGE OF THE CIRCUIT COURT OF APPEALS"
TO ISSUE THE CERTIFICATE, THE DISTRICT JUDGE, IN HIS ORDER, STATED THAT
PETITIONER MIGHT APPLY TO A JUDGE OF THE COURT OF APPEALS FOR THE
CERTIFICATE AND FOR THE ALLOWANCE OF HIS APPEAL. 

PETITIONER THEREUPON FILED WITH THE CIRCUIT COURT OF APPEALS A TIMELY
APPLICATION FOR AN APPEAL IN FORMA PAUPERIS, ADDRESSED TO THE "CHIEF
JUSTICE" OF THAT COURT.  THE APPLICATION WAS SUBMITTED TO THE COURT AND
BY IT DENIED ON THE GROUNDS THAT PETITIONER HAD NOT PRESENTED THE
CERTIFICATE OR PROBABLE CAUSE REQUIRED BY SEC. 466, AND THAT THE
DISTRICT JUDGE, ON THE CONTRARY, HAD FOUND THAT NO PROBABLE CAUSE
EXISTED.  THE COURT DID NOT CONSIDER WHETHER THE CASE WAS ONE REQUIRING
IT OR A CIRCUIT JUDGE TO MAKE THE CERTIFICATE OF PROBABLE CAUSE. 

THE CASE COMES HERE ON A MOTION FOR LEAVE TO FILE A PETITION FOR
CERTIORARI AND A MOTION FOR LEAVE TO FILE A PETITION FOR HABEAS
CORPUS.  THE QUESTIONS FOR DECISION ARE:  (1) WHETHER THIS COURT HAS
THE POWER TO ISSUE A WRIT OF CERTIORARI; (2) IF IT HAS, WHETHER IT MAY
REVIEW THE MERITS OF THE DECISION OF THE DISTRICT COURT; AND (3)
WHETHER THE DISTRICT COURT ERRED IN DENYING THE PETITION FOR HABEAS
CORPUS ON THE GROUNDS IT ASSIGNED FOR ITS DECISION. 

THIS COURT CANNOT ISSUE A WRIT OF CERTIORARI IN THE PRESENT CASE
UNDER SEC. 240(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 347(A). 
FERGUSON V. DISTRICT OF COLUMBIA, 270 U.S. 633.  OUR AUTHORITY UNDER
THAT SECTION EXTENDS ONLY TO CASES "IN A CIRCUIT COURT OF APPEALS, OR
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA." 
HERE THE CASE WAS NEVER "IN" THE COURT OF APPEALS, FOR WANT OF A
CERTIFICATE OF PROBABLE CAUSE. 

BUT SEC. 262 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 377, AUTHORIZES
THIS COURT "TO ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED FOR BY
STATUTE, WHICH MAY BE NECESSARY FOR THE EXERCISE OF (ITS JURISDICTION),
AND AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW."  BY VIRTUE OF THAT
COURT OF APPEALS IN DECLINING TO ALLOW AN APPEAL TO IT.  IN RE 620
CHURCH ST. CORP., 299 U.S. 24, 26, AND CASES CITED; HOLIDAY V.
JOHNSTON, 313 U.S. 342, 348, N. 2; WELLS V. UNITED STATES, 318 U.S.
257; STEFFLER V. UNITED STATES, 319 U.S. 38.  AND NOT ONLY DOES OUR
REVIEW EXTEND TO A DETERMINATION OF WHETHER THE CIRCUIT COURT OF
APPEALS ABUSED ITS DISCRETION IN REFUSING TO ALLOW THE APPEAL, BUT IF
SO, IT EXTENDS ALSO TO QUESTIONS ON THE MERITS SOUGHT TO BE RAISED BY
THE APPEAL.  SEE HOLIDAY V. JOHNSTON, SUPRA; STEFFLER V. UNITED STATES,
SUPRA.  WE HOLD THAT THE SAME PRINCIPLES ARE APPLICABLE HERE.  HENCE WE
ARE BROUGHT TO THE QUESTION WHETHER THE DISTRICT COURT RIGHTLY DENIED
THE PETITION. 

PETITIONER ALLEGES IN HIS PETITION FOR HABEAS CORPUS AND IN
SUPPLEMENTAL PAPERS FILED IN THE DISTRICT COURT, THAT HAVING COMPLETED
THE SERVICE OF TWO EARLIER SENTENCES, HE IS NOW CONFINED IN THE FLORIDA
PENITENTIARY SOLELY BY VIRTUE OF A TWENTY-YEAR SENTENCE FOR BURGLARY. 
THE SENTENCE WAS ORIGINALLY IMPOSED IN 1925 UPON HIS PLEA OF GUILTY TO
AN INFORMATION CHARGING THE OFFENSE.  HE ALLEGES THAT HE WAS
REPRESENTED BY HIS OWN ATTORNEY AT THE TRIAL OF THE TWO PRIOR OFFENSES;
THAT HIS ATTORNEY THEN WENT TO HIS OFFICE IN ANOTHER CITY, AND WAS TO
RETURN ON SEPTEMBER 30 OR OCTOBER 1, 1925; THAT PETITIONER WAS BROUGHT
BEFORE THE COURT TO BE SENTENCED FOR THOSE OFFENSES ON SEPTEMBER 11,
1925, WHEN HIS ATTORNEY WAS ABSENT; THAT WITHOUT PREVIOUS WARNING AN
INFORMATION WAS HANDED UP MAKING THE PRESENT CHARGE OF BURGLARY. 
PETITIONER ALLEGES FURTHER THAT HE ASKED FOR TIME TO COMMUNICATE AND
CONSULT WITH HIS ATTORNEY, BUT THAT THIS REQUEST WAS DENIED; THAT HE
WAS FORCED TO PLEAD GUILTY WITHIN A FEW MINUTES AFTER RECEIVING A COPY
OF THE INFORMATION; THAT AT THAT TIME HE WAS IN HIS TWENTIES,
UNEDUCATED, AND A STRANGER IN THE TOWN.  THE PETITION ALSO ALLEGED THAT
PETITIONER HAD "EXHAUSTED ALL LEGAL REMEDIES  ...  TO OBTAIN HIS
FREEDOM" IN THE STATE COURTS.  IN SUPPLEMENTAL PAPERS FILED WITH THE
DISTRICT COURT, HE MADE PARTICULAR REFERENCE TO THE SEVERAL PROCEEDINGS
IN WHICH HE HAD SOUGHT UNSUCCESSFULLY TO RAISE HIS CONSTITUTIONAL
QUESTION IN THE STATE COURTS. 

SINCE THE PETITION FOR HABEAS CORPUS WAS DENIED WITHOUT REQUIRING THE
RESPONDENT TO ANSWER AND WITHOUT A HEARING, WE MUST ASSUME THAT THE
PETITIONER'S ALLEGATIONS ARE TRUE.  WILLIAMS V. KAISER, 323 U.S. 471,
473-474.  FROM THEM IT APPEARS THAT THE TRIAL COURT, WITHOUT WARNING,
AND OVER PETITIONER'S PROTESTS, FORCED HIM TO PLEAD TO THE INFORMATION
WITHOUT THE AID AND ADVICE OF HIS COUNSEL, WHOSE PRESENCE HE
REQUESTED.  THIS WAS A DENIAL OF PETITIONER'S CONSTITUTIONAL RIGHT TO A
FAIR TRIAL, WITH THE AID AND ASSISTANCE OF COUNSEL WHOM HE HAD
RETAINED.  POWELL V. ALABAMA, 287 U.S. 45; EX PARTE HAWK, 321 U.S. 114,
115-116.  WE NEED NOT CONSIDER WHETHER THE STATE WOULD HAVE BEEN
REQUIRED TO APPOINT COUNSEL FOR PETITIONER ON THE FACTS ALLEGED IN THE
PETITION.  COMPARE BETTS V. BRADY, 316 U.S. 455, WITH WILLIAMS V.
KAISER, SUPRA, AND TOMKINS V. MISSOURI, 323 U.S. 485.  IT IS ENOUGH
THAT PETITIONER HAD HIS OWN ATTORNEY AND WAS NOT AFFORDED A REASONABLE
OPPORTUNITY TO CONSULT WITH HIM.  THE FACT THAT PETITIONER PLEADED
GUILTY AFTER THE DENIAL OF HIS REQUEST FOR TIME TO CONSULT WITH HIS
COUNSEL, DOES NOT DEPRIVE HIM OF HIS CONSTITUTIONAL RIGHT TO COUNSEL. 
WILLIAMS V. KAISER, SUPRA; TOMKINS V. MISSOURI, SUPRA. 

IN DENYING THE PETITION, THE DISTRICT COURT DID NOT CONSIDER WHETHER
THIS DEPRIVATION OF CONSTITUTIONAL RIGHT IS REMEDIABLE IN A FEDERAL
HABEAS CORPUS PROCEEDING.  CF. EX PARTE HAWK, SUPRA.  IN WALEY V.
JOHNSTON, 316 U.S. 101, 104-105, AND CASES CITED, WE POINTED OUT THAT
THE WRIT IS AN APPROPRIATE REMEDY IN THE FEDERAL COURTS IN "THOSE
EXCEPTIONAL CASES WHERE THE CONVICTION HAS BEEN IN DISREGARD OF THE
CONSTITUTIONAL RIGHTS OF THE ACCUSED, AND WHERE THE WRIT IS THE ONLY
EFFECTIVE MEANS OF PRESERVING HIS RIGHTS," AT LEAST WHERE "THE FACTS
RELIED ON ARE DEHORS THE RECORD AND THEIR EFFECT ON THE JUDGMENT WAS
NOT OPEN TO CONSIDERATION AND REVIEW ON APPEAL."  NOR DID THE DISTRICT
COURT REACH THE QUESTION WHETHER PETITIONER HAD EXHAUSTED HIS STATE
REMEDIES, WHICH IS PREREQUISITE TO RELIEF BY HABEAS CORPUS IN THE
FEDERAL COURT.  EX PARTE HAWK, SUPRA, 117.  WE FIND IT UNNECESSARY TO
PASS ON EITHER QUESTION IN THE FIRST INSTANCE, OR TO CONSIDER WHETHER
THE DISTRICT COURT SHOULD HAVE CALLED FOR AN ANSWER AND SET THE CASE
FOR A HEARING.  WE EXPRESS NO OPINION UPON THESE QUESTIONS, SINCE THE
DISTRICT COURT RESTED ITS DECISION WHOLLY ON DIFFERENT GROUNDS, WHICH
WE ALONE CONSIDER HERE. 

THE DISTRICT COURT WAS OF THE OPINION THAT "PETITIONER HAS HAD A
FULL, COMPLETE, AND COMPETENT CONSIDERATION AND DECISION IN THE SUPREME
COURT OF FLORIDA OF ALL THE VARIOUS MATTERS HERE SOUGHT AGAIN TO BE
PRESENTED."  THE DISTRICT COURT HAD REFERENCE TO THE DECISIONS OF THE
FLORIDA SUPREME COURT REFERRED TO BY PETITIONER IN HIS PAPERS FILED
WITH THE DISTRICT COURT.  THEY WERE:  HOUSE V. STATE, 127 FLA. 145, 172
SO. 734, A WRIT OF ERROR FROM PETITIONER'S CONVICTION N1; HOUSE V.
STATE, 130 FLA. 400, 177 SO. 705, AN APPLICATION FOR LEAVE TO FILE A
CORAM NOBIS PROCEEDING; AND THE DENIAL BY THE FLORIDA SUPREME COURT
WITHOUT OPINION OF THREE PETITIONS FOR HABEAS CORPUS FILED BY
PETITIONER.  BY EACH FORM OF PROCEEDING PETITIONER ATTEMPTED TO RAISE
THE QUESTIONS HE NOW RAISES IN THE PRESENT PETITION; BUT IN EACH
INSTANCE, SO FAR AS APPEARS, THE FLORIDA SUPREME COURT, WITHOUT
CONSIDERING THE MERITS OF PETITIONER'S CONTENTIONS AND WITHOUT
AFFORDING A HEARING ON THE MERITS, DENIED RELIEF TO PETITIONER, ON THE
GROUND THAT THE PARTICULAR REMEDY SOUGHT WAS NOT THE APPROPRIATE ONE
UNDER FLORIDA LAW TO RAISE THOSE CONTENTIONS.  SEE HOUSE V. STATE, 127
FLA. 145, 148; HOUSE V. STATE, 130 FLA. 400, 406; CF. SKIPPER V.
SCHUMACHER, 124 FLA. 384, 401-404, 169 SO. 58. 

THE DISTRICT COURT ALSO REFERRED TO A DENIAL BY THIS COURT OF A
PETITION FOR CERTIORARI, FILED HERE AFTER THE DENIAL BY THE FLORIDA
SUPREME COURT OF ONE OF THE APPLICATIONS FOR HABEAS CORPUS.  SEE HOUSE
V. MAYO, 322 U.S. 710.  THE DISTRICT COURT THOUGHT THAT THIS WAS AN
EXPRESSION "OF THE OPINION THAT NO MERITORIOUS QUESTION IS PRESENTED BY
THE MATTERS OF WHICH PETITIONER HERE COMPLAINS."  BUT AS WE HAVE OFTEN
SAID, A DENIAL OF CERTIORARI BY THIS COURT IMPORTS NO EXPRESSION OF
OPINION UPON THE MERITS OF A CASE.  SEE HAMILTON-BROWN SHOE CO. V. WOLF
BROTHERS, 240 U.S. 251, 258; SENEY V. SWIFT & CO., 260 U.S. 146, 151;
UNITED STATES V. CARVER, 260 U.S. 482, 490; ATLANTIC COAST LINE R. CO.
V. POWE, 283 U.S. 401, 403-404.  IT IS TRUE THAT WHERE A STATE COURT
HAS CONSIDERED AND ADJUDICATED THE MERITS OF A PETITIONER'S
CONTENTIONS, AND THIS COURT HAS EITHER REVIEWED OR DECLINED TO REVIEW
THE STATE COURT'S DECISION, A FEDERAL COURT WILL NOT ORDINARILY
REEXAMINE UPON WRIT OF HABEAS CORPUS THE QUESTIONS THUS ADJUDICATED. 
SEE EX PARTE HAWK, SUPRA, 118.  BUT THAT RULE IS INAPPLICABLE WHERE, AS
HERE, THE BASIS OF THE STATE COURT DECISION IS THAT THE PARTICULAR
REMEDY SOUGHT IS NOT ONE ALLOWED BY STATE LAW, FOR IN SUCH A CASE THIS
COURT LACKS JURISDICTION TO REVIEW THE DECISION.  WOOLSEY V. BEST, 299
U.S. 1, 2; NEW YORK EX REL. WHITMAN V. WILSON, 318 U.S. 688, 690;
WILLIAMS V. KAISER, SUPRA, 473, 476-479. 

THE DECISION OF THE DISTRICT COURT IS THUS NOT SUPPORTED BY THE
GROUNDS ASSIGNED FOR IT, AND SHOULD HAVE BEEN REVERSED BY THE COURT OF
APPEALS.  AND THE JUDGES OF THAT COURT ERRED IN NOT CONSIDERING WHETHER
THE CASE WAS AN APPROPRIATE ONE FOR A CERTIFICATE OF PROBABLE CAUSE, AS
THEY WERE AUTHORIZED TO DO BY 28 U.S.C. SEC. 466.  WE THINK THAT THEY
ALSO ERRED IN NOT ISSUING THE CERTIFICATE. 

THE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND FOR LEAVE TO
FILE THE PETITION FOR CERTIORARI ARE GRANTED.  THE PETITION FOR
CERTIORARI IS GRANTED, THE ORDER OF THE COURT OF APPEALS AND JUDGMENT
OF THE DISTRICT COURT ARE REVERSED AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS OPINION. 

THE MOTION FOR LEAVE TO FILE A PETITION FOR HABEAS CORPUS IN THIS
COURT IS DENIED.  EX PARTE ABERNATHY, 320 U.S. 219; EX PARTE HAWK,
SUPRA.  SO ORDERED. 

FN1  IN A HABEAS CORPUS PROCEEDING, THE FLORIDA SUPREME COURT DECIDED
THAT THE JUDGMENT AGAINST PETITIONER, ENTERED IN 1927, WAS DEFECTIVE IN
THAT IT DID NOT CONTAIN AND ADJUDICATION OF GUILT.  STATE EX REL. HOUSE
V. MAYO, 122 FLA. 23, 164 SO. 673.  THE COURT REMANDED PETITIONER TO
THE TRIAL COURT FOR THE IMPOSITION OF A PROPER SENTENCE.  ON FEBRUARY
22, 1936, THE TRIAL COURT RESENTENCED PETITIONER TO THE SAME TERM
ORIGINALLY IMPOSED.  THE OPINION REFERRED TO IN THE TEXT, 127 FLA. 145,
WAS ON A WRIT OF ERROR FROM PETITIONER'S CONVICTION, TAKEN AFTER THE
RESENTENCE IN 1936. 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE WRIT OF CERTIORARI SHOULD
BE DENIED. 
..END :







MUSCHANY V. UNITED STATES, 324 U.S. 49 


ARGUED OCTOBER 18, 1944.  - DECIDED FEBRUARY 5, 1945.  - 139 F.2D 661,
REVERSED. 


OPTION CONTRACTS FOR THE PURCHASE OF LAND BY THE UNITED STATES FROM
THE PETITIONERS PROVIDED FOR PAYMENT BY PETITIONERS OF A 5% COMMISSION
TO THE GOVERNMENT'S OPTIONING AGENT AND STIPULATED THAT IF CONDEMNATION
PROCEEDINGS SHOULD BE INSTITUTED THE OPTION PRICE SHOULD CONSTITUTE
JUST COMPENSATION.  IN SUBSEQUENT CONDEMNATION PROCEEDINGS THE
GOVERNMENT DISAFFIRMED THE CONTRACTS.  THE DISTRICT COURT UPHELD THE
CONTRACTS; THE CIRCUIT COURT OF APPEALS REVERSED.  ON REVIEW HERE,
HELD: 

1.  THE CONTRACTS CONTEMPLATED THAT THE AGENT'S COMMISSION SHOULD BE
ADDED TO THE VENDORS' NET PRICE.  P. 56. 

2.  ISSUES OF FRAUD, MISREPRESENTATION AND DURESS ARE NOT BEFORE THIS
COURT, SINCE THE TRIAL COURT MADE FINDINGS SUPPORTED BY SUBSTANTIAL
EVIDENCE AGAINST THE GOVERNMENT ON THOSE ISSUES; THE FINDINGS WERE NOT
REVERSED BY THE CIRCUIT COURT OF APPEALS; AND THE ISSUES WERE NOT
ARGUED HERE.  P. 57. 

3.  EVIDENCE THAT THE GOVERNMENT'S PURCHASING AGENT ENGAGED IN
QUESTIONABLE CONDUCT IN SECURING OPTIONS FROM OTHER VENDORS WAS NOT
RELEVANT TO THE ISSUE OF THE VALIDITY OF THE PETITIONERS' CONTRACTS. 
P. 58. 

4.  MERE DISPARITY BETWEEN THE ORIGINAL COST OF THE LANDS TO THE
SELLER AND THE SALE PRICE TO THE GOVERNMENT DOES NOT RENDER THE
CONTRACTS INVALID.  P. 58. 

5.  THE PROVISION OF SEC. 1 OF THE ACT OF JULY 2, 1940, PROHIBITING
USE OF THE "COST-PLUS-A-PERCENTAGE-OF-COST SYSTEM OF CONTRACTING," IS
APPLICABLE TO PURCHASES OF LANDS.  P. 60. 

6.  THE CONTRACTS DID NOT VIOLATE THE PROVISION OF SEC. 1 OF THE ACT
OF JULY 2, 1940, FORBIDDING USE (UNDER THAT SECTION) OF THE "COST-PLUS
A-PERCENTAGE-OF-COST SYSTEM OF CONTRACTING."  P. 61. 

7.  THE CONTRACTS WERE NOT INVALID AS CONTRARY TO PUBLIC POLICY.  P.
64. 

(A)  THE NATURE OF THE AGENT'S INTEREST AND THE CONTINGENT CHARACTER
OF HIS FEE ARE NOT SUCH AS TO VITIATE THE CONTRACTS.  P. 65. 

(B)  IN THE ABSENCE OF A PLAIN INDICATION OF PUBLIC POLICY THROUGH
LONG GOVERNMENTAL PRACTICE OR STATUTORY ENACTMENTS, OR OF VIOLATIONS OF
OBVIOUS ETHICAL OR MORAL STANDARDS, THIS COURT SHOULD NOT ASSUME TO
DECLARE GOVERNMENT CONTRACTS CONTRARY TO PUBLIC POLICY.  P. 66. 

(C)  THE PROVISIONS OF SECS. 41, 112 AND 113 OF THE CRIMINAL CODE AND
OF THE ACT OF MARCH 3, 1917, DO NOT MANIFEST A PUBLIC POLICY AGAINST
THE USE OF CONTRACTS OF THE TYPE HERE INVOLVED.  P. 67. 

(D)  NOR DOES THE ACTION OF CONGRESS ON SUBSEQUENT LEGISLATION
INDICATE THAT THE CONTRACTS ARE CONTRARY TO PUBLIC POLICY.  P. 68. 

MUSCHANY ET AL. V. UNITED STATES. 

NO. 31.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT.* 

*TOGETHER WITH NO. 32, ANDREWS ET AL. V. UNITED STATES, ALSO ON WRIT
OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 321 U.S. 760, TO REVIEW THE REVERSAL OF JUDGMENTS IN TWO
CONDEMNATION PROCEEDINGS WHICH INVOLVED THE VALIDITY OF CONTRACTS OF
THE UNITED STATES FOR THE PURCHASE OF LANDS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

WRITS OF CERTIORARI WERE ALLOWED TO PETITIONERS BY THIS COURT IN
THESE TWO CASES TO REVIEW THE ACTION OF THE CIRCUIT COURT OF APPEALS
FOR THE EIGHTH CIRCUIT.  FN1  THAT APPELLATE COURT REVERSED THE ACTION
OF THE DISTRICT COURT OF THE EASTERN DISTRICT OF MISSOURI WHICH HAD
UPHELD THE VALIDITY OF CONTRACTS BETWEEN PETITIONERS AND THE UNITED
STATES FOR THE PURCHASE OF LAND FOR THE WELDON SPRINGS, MISSOURI,
ORDNANCE PLANT.  FN2  THE CONTRACTS WERE PLEADED BY PETITIONERS AS
DEFENDANTS IN EMINENT DOMAIN SUITS TO ESTABLISH THE PROPER CONDEMNATION
AWARD. 

THE PETITIONS FOR CERTIORARI WERE GRANTED, 321 U.S. 760, BECAUSE OF
ASSERTED CONFLICT WITH UNITED STATES V. GRACE EVANGELICAL CHURCH, 132
F.2D 460.  JURISDICTION OF THIS COURT RESTS ON SEC. 240 OF THE JUDICIAL
CODE. 

UNDER THE AUTHORITY OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE
APPROPRIATION ACT OF 1941, 54 STAT. 872, THE PRESIDENT APPROVED THE
WELDON SPRINGS PROJECT ON OCTOBER 17, 1940.  PURSUANT TO THIS APPROVAL,
THE WAR DEPARTMENT CLAIMS THAT IT PROCEEDED TO ACQUIRE THE NECESSARY
LAND UNDER THE ACT OF JULY 2, 1917, 40 STAT. 241, AS RESTRICTED BY THE
NATIONAL DEFENSE ACT OF JULY 2, 1940, 54 STAT. 712.  THE STATUTORY
AUTHORITY OF THE WAR DEPARTMENT TO PROCEED AS IT DID IS NOT QUESTIONED
EXCEPT ON THE ISSUE OF WHETHER THE PURCHASE CONTRACTS ENTERED INTO IN
ACQUIRING THE NEEDED LAND VIOLATE THE FIRST SECTION OF THE ACT OF JULY
2, 1940, WHICH PROVIDES: 

"PROVIDED FURTHER, THAT THE COST-PLUS-A-PERCENTAGE-OF-COST SYSTEM OF
CONTRACTING SHALL NOT BE USED UNDER THIS SECTION; BUT THIS PROVISO
SHALL NOT BE CONSTRUED TO PROHIBIT THE USE OF THE COST-PLUS-A-FIXED-FEE
FORM OF CONTRACT WHEN SUCH USE IS DEEMED NECESSARY BY THE SECRETARY OF
WAR."  54 STAT. 713. 

THE DUTY TO ACT FOR THE WAR DEPARTMENT IN OBTAINING THE LAND LAY IN
THE OFFICE OF THE QUARTERMASTER GENERAL AND SPECIFICALLY IN THE REAL
ESTATE BRANCH OF THAT OFFICE.  IN AN EFFORT TO EXPEDITE THE ACQUISITION
OF THE NEEDED LAND, THE HEAD OF THAT BRANCH, COLONEL R.D. VALLIANT,
CONTRACTED WITH R. NEWTON MCDOWELL TO ACT AS THE AGENT FOR THE
GOVERNMENT IN SECURING OPTIONS, ON FORMS APPROVED BY THE UNITED STATES
AND ATTACHED TO THE EMPLOYMENT CONTRACT, FROM THE OWNERS FOR SUBMISSION
TO AND ACCEPTANCE BY THE UNITED STATES.  MR. MCDOWELL'S COMPENSATION
FOR ACTING AS AGENT WAS A "FIVE PER CENT (5%) COMMISSION  ...  TO BE
PAID BY THE VENDOR."  FN3 

THE EMPLOYMENT OF MCDOWELL AS AGENT TO SECURE OPTIONS FOR THE UNITED
STATES WAS CONFIRMED BY THE WAR DEPARTMENT TO THE CITIZENS COMMITTEE,
AN INFORMAL ORGANIZATION OF THOSE WHO OWNED PROPERTY WHICH WAS NEEDED
FOR THE PROPOSED PROJECT.  MCDOWELL WENT TO WORK TO CARRY OUT HIS
CONTRACT.  HE HELD MEETINGS AT WHICH HE EXPLAINED TO THE LANDOWNERS THE
PLAN TO SECURE OPTIONS AND THE OPTION FORM ITSELF.  FROM HIS
EXPLANATION THE LANDOWNERS MUST HAVE UNDERSTOOD THAT THEIR SALE PRICE
WOULD HAVE DEDUCTED FROM IT MCDOWELL'S COMMISSION AND OTHER EXPENSES. 
THIS WAS ALSO THE UNDERSTANDING OF THE GOVERNMENT, AS IS SHOWN NOT ONLY
BY THE DOCUMENTS THEMSELVES WHICH WERE APPROVED BY THE GOVERNMENT BUT
ALSO SPECIFICALLY BY THE TESTIMONY OF COLONEL VALLIANT.  WHILE MCDOWELL
WAS EMPLOYED AND HIS COMMISSION SET BY THE GOVERNMENT, IT WAS ARRANGED
THAT MCDOWELL SHOULD COLLECT HIS MONEY FROM THE VENDOR SO THAT A SINGLE
VOUCHER WOULD COVER THE PURCHASE PRICE AND THE EXPENSES. 

THE APPROVED FORM OF OPTION, WHICH WAS A PART OF MCDOWELL'S CONTRACT
WITH THE GOVERNMENT, WAS USED BY MCDOWELL IN THE PARTICULAR
TRANSACTIONS WHICH ARE UNDER EXAMINATION IN THESE PROCEEDINGS.  THE
OPTION ACCORDS WITH THE REQUIREMENTS OF THE MCDOWELL CONTRACT AND IN
ADDITION PROVIDES FOR AN AGREED VALUATION AT THE OPTION PRICE IN CASE
OF CONDEMNATION.  FN4  THE OFFER WAS ACCEPTED BY THE GOVERNMENT. 

THERE WERE A LARGE NUMBER OF LANDOWNERS IN THE REQUIRED AREA. 
OPTIONS WERE OBTAINED FROM 270, INCLUDING THE PETITIONERS, AND WITH ONE
EXCEPTION THE OPTIONS WERE ACCEPTED BY THE GOVERNMENT AT THE OPTIONED
PRICE.  ALMOST HALF OF THE CONTRACTS WERE CLOSED BY ACCEPTANCE OF DEEDS
AND PAYMENT OF THE PRICE.  CRITICISM OF THE PRICES AND MANNER OF
PURCHASE DEVELOPED AND THE WAR DEPARTMENT REPUDIATED THE REMAINING
CONTRACTS AND TURNED TO CONDEMNATION.  THE REPUDIATION FOLLOWED UPON
THE CONCLUSION AMONG OTHER THINGS THAT THE CONTRACTS VIOLATED THE
STATUTORY PROVISION AGAINST THE COST-PLUS-A-PERCENT-AGE-OF-COST SYSTEM
OF CONTRACTING, PAGE 52, SUPRA, AND WERE CONTRARY TO PUBLIC POLICY
BECAUSE OF THE CONTINGENT INTEREST OF MCDOWELL, WHICH WAS ANTAGONISTIC
TO THE GOVERNMENT. 

PETITIONERS' OPTIONS WERE AMONG THOSE ACCEPTED ONLY TO BE REPUDIATED
LATER, THE GOVERNMENT THEN INSTITUTING CONDEMNATION PROCEEDINGS TO
OBTAIN PETITIONERS' LANDS.  IN THE TWO CONDEMNATION PROCEEDINGS
INSTITUTED AGAINST PETITIONERS, JUDGMENTS WERE ENTERED UPON A
DECLARATION OF TAKING WHICH VESTED TITLES IN THE UNITED STATES.  46
STAT. 1421.  THEREAFTER THE PETITIONERS HERE FILED THEIR ANSWERS IN
WHICH THEY CONSENTED TO THE CONDEMNATION AND DEMANDED THAT THE PRICE
WHICH WAS FIXED IN THE OPTION, ACCEPTED BY THE GOVERNMENT, BE ADOPTED
BY THE TRIAL COURT AS JUST COMPENSATION.  IN REPLY THE GOVERNMENT SET
UP ITS REPUDIATION OF THE CONTRACTS ON NUMEROUS GROUNDS INCLUDING
FRAUD, SUCH UNFAIRNESS TO THE GOVERNMENT BECAUSE OF GROSS OVERVALUATION
THAT THE CONTRACT SHOULD NOT BE ENFORCED IN EQUITY AND GOOD CONSCIENCE
AS WELL AS THE DISREGARD OF THE STATUTORY PROSCRIPTION AND PUBLIC
POLICY, WHICH WAS REFERRED TO IN THE PRECEDING PARAGRAPH AS THE GROUND
FOR REPUDIATION. 

THE TWO CASES WERE DECIDED IN FAVOR OF THE VALIDITY OF THE CONTRACTS
AND THE COMPENSATION WAS FIXED AT THE PRICE STATED IN THE CONTRACT
WITHOUT REVALUATION.  CONSEQUENTLY THERE WAS NO OCCASION FOR THE TRIAL
COURTS TO DETERMINE WHETHER VALUATION MEASURED BY JUST COMPENSATION
WOULD HAVE VARIED FROM THE AGREED PRICE.  THE GOVERNMENT MAKES NO
OBJECTION TO THIS MANNER OF DETERMINING COMPENSATION IF THE ACCEPTED
OPTIONS (CONTRACTS) ARE VALID.  COMPARE DANFORTH V. UNITED STATES, 308
U.S. 271, 282.  IN ONE CASE THE FINDINGS OF FACT AND A COMMENT APPEAR
AS A MEMORANDUM OPINION IN UNITED STATES V. CERTAIN LAND, 46 F.SUPP. 
921.  IN THE OTHER CASE, THE DECREE WAS ENTERED WITHOUT SEPARATE
FINDINGS OF FACT OR OPINION AFTER ADOPTION OF THE MEMORANDUM IN THE
FIRST CASE.  WE PERCEIVE NOTHING IN THE RECORD TO DISTINGUISH THE CASES
HERE AND SHALL DISPOSE OF THEM IN A SINGLE OPINION.  FN5 

THE FOLLOWING DETERMINATION APPEARS IN THE OPINION OF THE TRIAL COURT
FOR THESE CASES, 46 F.SUPP.  AT PAGE 928: 

"THERE IS AN ABSENCE OF ANY SHOWING THAT FACTS WERE CONCEALED, THAT
MISREPRESENTATIONS WERE MADE, OR THAT DURESS WAS USED.  THE PRICE
STATED IN THE OPTION CONTRACT IS NOT UNCONSCIONABLE.  THERE IS NO
FRAUD, ACTUAL OR CONSTRUCTIVE, IN THIS CASE."  FN6 

AS A RESULT OF THIS CONCLUSION, THE ISSUES OF CORRUPT ACTION IN THESE
TWO INSTANCES ARE DECIDED CONTRARY TO THE GOVERNMENT'S CONTENTION AT
THE TRIAL.  NO SUCH CONTENTION WAS MADE BY THE GOVERNMENT HERE.  THE
FINDINGS ALSO STATED, AT PAGE 925: 

"THERE IS NO EVIDENCE THAT THE OPTION PRICE OF FORTY-FIVE HUNDRED
DOLLARS INCLUDED THE AMOUNT THE DEFENDANTS ASKED FOR THE LAND PLUS
MCDOWELL'S FEE OF 5% OF SALE PRICE, THE KANSAS CITY TITLE INSURANCE
COMPANY'S FEE OF 1 1/2% FOR EXAMINING TITLE, THE STAMP TAX OR THE
RECORDING FEE."  WE TREAT THE FINDING AND DETERMINATION AS APPLICABLE
TO BOTH CASES. 

ON APPEAL THE CIRCUIT COURT OF APPEALS FOUND, CONTRARY TO THE TRIAL
COURT'S FINDING QUOTED ABOVE, THAT THE COMMISSION AND EXPENSES WERE
ADDED TO THE VENDORS' NET PRICE.  WE AGREE WITH THE APPELLATE COURT. 
WHILE NO DIRECT EVIDENCE APPEARS AS TO THE ADDITION OF THE EXPENSES TO
THE VENDORS' NET PRICE, IT SEEMS CLEAR FROM THE AGREEMENT BETWEEN THE
GOVERNMENT AND MCDOWELL, THE OPTION CONTRACT, THE STATEMENTS OF
MCDOWELL AT PUBLIC MEETINGS, THE ADVICE GIVEN BY THE CITIZENS'
COMMITTEE AND COLONEL VALLIANT'S TESTIMONY THAT IT WAS GENERALLY
UNDERSTOOD THAT THE OPTION PRICE WAS TO BE CALCULATED IN THIS WAY. 
ALTHOUGH MESSRS.  MUSCHANY AND ANDREWS WERE NOT ASKED SPECIFICALLY AS
TO HOW THEY FIGURED THEIR GROSS PRICES STATED IN THE OPTIONS, BOTH WERE
PRESENT AT A MEETING AT WHICH MCDOWELL EXPLAINED HIS CONTRACT.  SINCE
THE VENDORS AGREED BY THE CONTRACT TO PAY ALL COMMISSIONS AND EXPENSES,
THEY MUST HAVE ADDED THESE EXPENSES TO WHAT THEY EXPECTED TO RECEIVE
NET FOR THEIR LAND.  WHETHER THE ADDITION WAS BY PRECISE ARITHMETICAL
COMPUTATION OR BY INTUITIVE ACTION IS IMMATERIAL.  THE MERE FACT THAT
NO SEPARATE STATEMENT OF THE ITEMS APPEARS IN THE EVIDENCE IN THESE
CASES WOULD NOT OVERTURN THE FORCE OF THIS GENERAL AND DEFINITE
UNDERSTANDING. 

THE COURT OF APPEALS WAS OF THE OPINION THAT THE CONTRACTS WITH THE
LANDOWNERS WERE COST-PLUS-A-PERCENTAGE-OF-COST AND THEREFORE INVALID. 
ANY FURTHER EXAMINATION BY IT OF THE GOVERNMENT'S CONTENTION THAT THE
CONTRACT WAS CONTRARY TO PUBLIC POLICY WAS UNNECESSARY.  PETITIONERS
HERE ATTACK THE FIRST CONCLUSION.  THE GOVERNMENT DEFENDS THE ACTION OF
THE APPELLATE COURT ON THIS GROUND AND ALSO BECAUSE, INDEPENDENTLY OF
THE COST-PLUS PROHIBITION, THE CONTRACTS BETWEEN THE LANDOWNERS AND THE
GOVERNMENT WERE CONTRARY TO PUBLIC POLICY. 

PRIOR TO CONSIDERATION OF THE TWO PRINCIPAL ISSUES RAISED BY THE
PETITIONERS AND RESPONDENT IN THEIR ARGUMENTS BEFORE THIS COURT, IT
SEEMS NECESSARY TO REFER TO THE ALLEGATIONS OF FRAUD, UNCONSCIONABLE
DEALING, BAD FAITH AND MISREPRESENTATION ON WHICH RESPONDENT RELIED IN
THE TRIAL COURT AS INVALIDATING PETITIONERS' CONTRACTS.  AS IS
INDICATED, ANTE, PP. 55-56, THE TRIAL COURT SPECIFICALLY FOUND AGAINST
THE RESPONDENT ON THESE ISSUES.  NOR DID THE CIRCUIT COURT OF APPEALS
REVERSE THE TRIAL COURT'S FINDINGS.  FRAUD, MISREPRESENTATION AND
DURESS WERE NOT ARGUED BEFORE THIS COURT.  SINCE THE TRIAL COURT'S
FINDINGS ON THESE ISSUES ARE SUPPORTED BY SUBSTANTIAL EVIDENCE, IT IS
NOT FOR THIS COURT TO UNDERTAKE AN INDEPENDENT EXAMINATION OF THESE
ISSUES AS SUCH, OR UNDER THE GUISE OF DETERMINING "JUST COMPENSATION." 
FN7  ONLY RECENTLY THIS COURT RESTATED THE RULES RELATING TO THE WEIGHT
TO BE GIVEN FACT DETERMINATIONS BY INFERIOR JUDICIAL OR QUASI-JUDICIAL
BODIES.  UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S. 289, 297-98;
DOBSON V. COMMISSIONER, 320 U.S. 489, 321 U.S. 231.  THEREFORE THIS
CASE COMES BEFORE THIS COURT WITHOUT ANY SUGGESTION OF FRAUD OR
UNFAIRNESS SUCH AS WOULD JUSTIFY HOLDING THE CONTRACTS INVALID.  SINCE
THESE MATTERS ARE NOT BEFORE US, WE NEED EXPRESS NO OPINION ON THIS
ASPECT OF THE CASE. 

THE FEDERAL DISTRICT COURT ADMITTED EVIDENCE WHICH INDICATED THAT
MCDOWELL ENGAGED IN QUESTIONABLE CONDUCT IN SECURING OPTIONS FROM
SELLERS OTHER THAN THE PETITIONERS IN THE INSTANT CASE.  SUCH EVIDENCE
IS NOT RELEVANT TO THE ISSUE OF THE VALIDITY OF PETITIONERS'
CONTRACTS.  THE ENFORCEABILITY OF PETITIONERS' CONTRACTS IS NOT TO BE
DETERMINED OR COLORED BY MCDOWELL'S ALLEGED DEALINGS WITH OTHER
PARTIES; THESE OTHER CONTRACTS ARE NOT INVOLVED IN THE INSTANT CASE AND
CIRCUMSTANCES WHICH MIGHT URGE A DIFFERENT RESULT WITH RESPECT TO THEM
MUST BE CAREFULLY ELIMINATED LEST PETITIONERS BE PENALIZED FOR ILLEGAL
ACTS OF OTHERS. 

THERE REMAINS TO BE CONSIDERED THE QUESTION WHETHER MERE DISPARITY
BETWEEN THE ORIGINAL COST OF THESE LANDS TO THE SELLER AND THE SALE
PRICE TO THE GOVERNMENT MAKES THE CONTRACTS ILLEGAL - WHETHER A
CONTRACT WITH THE GOVERNMENT IS INVALID ON A MERE SHOWING THAT IT WAS
HIGHLY PROFITABLE BUT NOT UNCONSCIONABLE.  CONGRESS' ADOPTION OF
STATUTES PROVIDING FOR THE RENEGOTIATION OF WAR CONTRACTS INDICATES
THAT IN CERTAIN INSTANCES THE GOVERNMENT SEEKS TO RECOVER ABNORMALLY
HIGH CONTRACT PROFITS.  THAT CONGRESS COULD HAVE EXTENDED THE COVERAGE
OF THESE PROVISIONS TO THESE CONTRACTS IS UNQUESTIONED; THE FACT THAT
IT DID NOT DO SO CANNOT BE DISREGARDED BY THIS COURT.  FN8 

IT GOES WITHOUT SAYING THAT IN ALL DEALINGS WITH THE GOVERNMENT,
CONTRACTORS AND AGENTS ALIKE ARE UNDER AN OBLIGATION TO DEAL STRICTLY
WITHIN THE LIMITS OF THE STATUTES AND WITH ABSOLUTE HONESTY.  CRIMINAL
SANCTIONS ENFORCE THIS RULE.  SIMILARLY, THE DOCTRINES OF FRAUD,
UNCONSCIONABLE DEALING AND UNJUST ENRICHMENT ARE TO BE STRICTLY APPLIED
TO INSURE FAIR AND HONEST DEALING BETWEEN THE GOVERNMENT AND ITS
CITIZENS.  THESE REMEDIES ARE AVAILABLE WHENEVER AND WHEREVER
TRANSGRESSIONS TAKE PLACE.  HOWEVER, THE RIGHT TO DETERMINE THE
POLICIES OR METHODS BY WHICH PROPERTY IS TO BE ACQUIRED RESTS WITH
CONGRESS. 

APPLICABILITY OF COST-PLUS-A-PERCENTAGE-OF-COST CLAUSE.  PRIOR TO THE
PRESENT WAR EMERGENCY THE SECRETARY OF WAR HAD BROAD POWERS TO ACQUIRE
LAND FOR MILITARY PURPOSES BY PURCHASE AT PRICES DEEMED REASONABLE BY
HIM OR BY CONDEMNATION.  FN9  THERE WERE NO RESTRICTIONS AS TO THE
MANNER IN WHICH HE SHOULD EXERCISE THIS POWER TO PURCHASE, BUT HIS
POWER TO CONTRACT FOR CONSTRUCTION WORK WAS SHARPLY LIMITED BY
STATUTE.  FN10  THESE RESTRICTIONS, IF CONTINUED, WOULD HAVE SERIOUSLY
IMPEDED THE WAR DEPARTMENT'S PREPARATION FOR WAR.  THEREUPON CONGRESS
PASSED THE ACT OF JULY 2, 1940, WHICH REMOVED CERTAIN OF THESE PRIOR
STATUTORY RESTRICTIONS.  THE ACT DID, HOWEVER, RESTRICT THE BROAD
POWERS CONFERRED THEREIN BY PROHIBITING THE USE OF COST-PLUS-A
PERCENTAGE-OF-COST CONTRACTS; USE OF COST-PLUS-A-FIXED-FEE CONTRACTS
WAS EXPRESSLY APPROVED BY THE ACT.  FN11  THE QUESTION IS RAISED AS TO
WHETHER THE PROHIBITION OF COST-PLUS-A-PERCENTAGE-OF-COST CONTRACTS
APPLIES TO THE WAR DEPARTMENT'S PURCHASE OF THESE LANDS WITH
APPROPRIATIONS FOR THE FISCAL YEAR 1941. 

WE ARE OF THE OPINION THAT THE FIRST SECTION OF THE ACT OF JULY 2,
1940, SEE FOOTNOTE 11, INDICATES THAT THE PURCHASE OF LAND BY THE WAR
DEPARTMENT IS SUBJECT TO THE PROVISIONS OF THAT SECTION; THEREFORE, THE
PROVISO IN THE SECTION WHICH PROHIBITS USE OF THE COST-PLUS-A
PERCENTAGE-OF-COST SYSTEM OF CONTRACTING MUST BE TAKEN TO APPLY TO
PURCHASES OF LAND.  THE ACT OF JULY 2, 1917, 40 STAT. 241, 518,
AUTHORIZING THE PURCHASE OF LAND, IS LIMITED BY THE QUOTED SECTION FROM
54 STAT. 712. 

OUR NEXT INQUIRY IS AS TO WHETHER THE CONTRACT WITH THE VENDORS, NOTE
4, SUPRA, VIOLATES THIS PROHIBITION AGAINST COST-PLUS-A-PERCENTAGE-OF
COST CONTRACTS.  EVIDENTLY THE PROVISO WAS INSERTED TO AVOID THE ABUSES
WHICH WERE PREVALENT BEFORE AND DURING THE FIRST WORLD WAR FROM THE
GOVERNMENT'S GUARANTEE OF COST PLUS A PROFIT TO CONTRACTORS.  FN12 

THE PURPOSE OF CONGRESS WAS TO PROTECT THE GOVERNMENT AGAINST THE
SORT OF EXPLOITATION SO EASILY ACCOMPLISHED UNDER COST-PLUS-A
PERCENTAGE-OF-COST CONTRACTS UNDER WHICH THE GOVERNMENT CONTRACTS AND
IS BOUND TO PAY COSTS, UNDETERMINED AT THE TIME THE CONTRACT IS MADE
AND TO BE INCURRED IN THE FUTURE, PLUS A COMMISSION BASED ON A
PERCENTAGE OF THESE FUTURE COSTS.  THE EVIL OF SUCH CONTRACTS IS THAT
THE PROFIT OF THE OTHER PARTY TO THE CONTRACT INCREASES IN PROPORTION
TO THAT OTHER PARTY'S COSTS EXPENDED IN THE PERFORMANCE.  THE DANGER
GUARDED AGAINST BY THE CONGRESSIONAL PROHIBITION WAS THE INCENTIVE TO A
GOVERNMENT CONTRACTOR WHO ALREADY HAD A BINDING CONTRACT WITH THE
GOVERNMENT FOR PAYMENT OF UNDETERMINED FUTURE COSTS TO PAY LIBERALLY
FOR REIMBURSABLE ITEMS BECAUSE HIGHER COSTS MEANT A HIGHER FEE TO HIM,
HIS PROFIT BEING DETERMINED BY A PERCENTAGE OF COST.  CONGRESS
CERTAINLY DID NOT INTEND TO PREVENT A PARTY WHO WAS MERELY SUBMITTING A
BID TO THE GOVERNMENT FROM COMPUTING THE AMOUNT OF HIS BID BY TAKING
INTO CONSIDERATION HIS COSTS AND THEN ADDING A CERTAIN PERCENTAGE OF
THE COST AS HIS PROFIT, THE RESULTING SUM BID BEING FIXED IN AMOUNT AND
NOT SUBJECT TO CHANGE.  CONGRESS, BY CHANGING THE ORIGINAL PROHIBITION
IN THE ACT FROM ONE OUTLAWING ANY "COST-PLUS" SYSTEM OF CONTRACTING SO
AS TO EXPRESSLY AUTHORIZE USE OF A "COST-PLUS-A-FIXED-FEE" FORM OF
CONTRACT, INDICATED IT DID NOT CARE HOW THE CONTRACTOR COMPUTED HIS FEE
OR PROFIT SO LONG AS THE FEE OR PROFIT WAS FINALLY AND CONCLUSIVELY
FIXED IN AMOUNT AT THE TIME WHEN THE GOVERNMENT BECAME BOUND TO PAY IT
BY ITS ACCEPTANCE OF THE BID.  BY ELIMINATING THE RISK OF LOSS AND
PERMITTING THE GUARANTEE OF A SATISFACTORY BUT FIXED FEE, CONGRESS
SOUGHT PROMPT PERFORMANCE AND LOWER OVER-ALL EXPENDITURES FOR CONTRACTS
IN A RISING LABOR AND COMMODITY MARKET THAN WOULD BE OFFERED BY
CONTRACTORS WHO WERE COMPELLED THEMSELVES TO ASSUME THE RISK OF THESE
UNPREDICTABLE COSTS. 

THE VENDORS' CONTRACT, WHEN READ WITH THE MCDOWELL CONTRACT, SHOWS
THAT THE GOVERNMENT ARRANGED FOR A FEE TO ITS AGENT BASED ON A
PERCENTAGE OF THE PURCHASE PRICE.  THIS DOES NOT FALL WITHIN THE
LANGUAGE OF COST-PLUS-A-PERCENTAGE-OF-COST.  THE OFFER WAS TO SELL TO
THE GOVERNMENT AT A FIXED, DEFINITE PRICE.  THE GOVERNMENT WHEN IT
ACCEPTED THIS OFFER AGREED TO PAY THIS SET AMOUNT AND NO MORE.  THE
CONTRACT CONTAINS NO PROVISION ALLOWING ADJUSTMENT OF PRICE BASED ON
POSSIBLE FUTURE INDETERMINATE EXPENSES.  THE VICE OF COST-PLUS
CONTRACTS IS NOT INHERENT IN THE VENDORS' CONTRACT.  THAT VICE
BASICALLY IS THE INCENTIVE TO THE CONTRACTOR TO INFLATE HIS FUTURE
COSTS TO INCREASE HIS PROFITS SINCE THE GOVERNMENT IS ALREADY BOUND TO
PAY ANY FUTURE UNDETERMINED "COSTS."  THE AMOUNTS TO BE PAID UNDER
PETITIONERS' CONTRACTS ARE NOT SUBJECT TO CHANGE BY FUTURE ACTION OF
THE VENDOR.  THE GOVERNMENT KNEW THE TOTAL COST WHEN IT BECAME BOUND ON
THE CONTRACT.  IF WE READ THE VENDORS' CONTRACT AS AFFECTED BY THE
MCDOWELL CONTRACT, NO COST-PLUS CONTRACT EMERGES.  THE UNITED STATES
KNEW ITS AGENT'S FEE TO THE PENNY WHEN IT ACCEPTED THE OPTION.  IT WAS
FIVE PER CENT OF THE GROSS SALE PRICE.  NOTES 3 AND 4 SUPRA.  THAT IS
TO SAY, THE PRICE TO BE PAID FOR THE LAND WAS SUBJECT TO THE APPROVAL
OF THE GOVERNMENT.  THE WAR DEPARTMENT COULD ACCEPT OR REJECT THE
OFFERS SUBMITTED BY MCDOWELL.  WHEN THE WAR DEPARTMENT APPROVED EACH
OFFER, IT FIXED THE PRECISE FEE WHICH MCDOWELL WAS TO RECEIVE.  THE
ARRANGEMENT MAY HAVE BEEN IMPROVIDENT FROM THE POINT OF VIEW OF THE
GOVERNMENT.  BUT THAT QUESTION GOES TO THE QUALITY OF MANAGEMENT BY ITS
PROCUREMENT OFFICERS.  THE FACT THAT THE PROCUREMENT SYSTEM IS
IMPROVIDENT OBVIOUSLY DOES NOT MAKE IT ILLEGAL.  ILLEGALITY DOES NOT
EMERGE FROM INADEQUATE SUPERVISION OF PRICES BY THE REAL ESTATE
BRANCH.  SUCH OFFICIAL FAILURES ARE NOT CHARGEABLE TO A THIRD PARTY
DEALING WITH THE GOVERNMENT IN GOOD FAITH.  IT MAY BE UNWISE FOR THE
GOVERNMENT TO PAY ITS PURCHASING AGENT A COMMISSION WHICH IS FIGURED ON
COST OF PURCHASES TO THE GOVERNMENT BUT THERE IS NO STATUTORY
PROHIBITION.  SINCE THE UNITED STATES IS THE PURCHASER OF THE LAND AT
THE OPTION PRICE, NO ONE CAN RECEIVE COST PLUS ANYTHING.  NEITHER THE
VENDORS NOR MCDOWELL AGREES TO BUY FROM A THIRD PARTY AND SELL TO THE
GOVERNMENT AT AN ADVANCE.  THE VENDORS' CONTRACT HAS NEITHER THE FORM
NOR THE VICE OF A COST-PLUS CONTRACT.  FN13 

PUBLIC POLICY.  THE GOVERNMENT ADVANCES A FURTHER AND DISTINCT
ARGUMENT FOR AFFIRMING THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
THAT THE VENDORS' CONTRACT IS INVALID.  THIS IS THAT THE CONTRACTS OF
MUSCHANY AND ANDREWS ARE INVALID AS AGAINST PUBLIC POLICY BECAUSE OF
THE INTEREST OF MCDOWELL WHICH IS ANTAGONISTIC TO THE UNITED STATES AND
BECAUSE OF THE CONTINGENT CHARACTER OF THE MCDOWELL FEE WHICH, IT IS
ASSERTED, IS PAID BY THE VENDORS FOR THE PROCUREMENT OF THE CONTRACT OF
SALE.  WE THINK THAT IT IS INADMISSIBLE TO VIEW THE MCDOWELL CONTRACT
AND THE VENDORS' CONTRACTS AS UNRELATED.  ON ACCOUNT OF THE VENDORS'
THOROUGH UNDERSTANDING OF MCDOWELL'S AGENCY, AS DISCUSSED IN THE
PRECEDING DIVISION OF THIS OPINION, THEIR CONTRACTS MUST BE READ AS
THOUGH THE MCDOWELL CONTRACT WAS WRITTEN INTO THEM TO SHOW HIS AGENCY
FOR THE GOVERNMENT. 

WHEN THIS IS DONE, IT IS CLEAR THAT THE OBJECTION TO THE VENDORS'
PAYING A FEE CONTINGENT ON THE SECURING OF A GOVERNMENT CONTRACT
DISAPPEARS.  WHILE IN FORM THE MCDOWELL FEE AND OTHER EXPENSES ARE PAID
BY THE VENDORS, IT WAS SO HANDLED, AS IS SHOWN BY THE FINDING OF THE
TRIAL COURT, THAT "THE SEVERAL TRANSACTIONS (MIGHT BE) CLOSED WITH THE
ISSUANCE OF ONE, INSTEAD OF SEVERAL VOUCHERS, FOR EACH TRACT."  46
F.SUPP.  AT 925-26.  THE EVIDENCE INDICATES THAT IN REALITY MCDOWELL
WAS THE GOVERNMENT'S AGENT AND THAT HIS COMMISSION, ALTHOUGH NOMINALLY
PAID BY THE VENDOR, AMOUNTED TO A PAYMENT BY THE GOVERNMENT TO HIM AS
ITS AGENT.  CONTINGENT FEE CONTRACTS TO SECURE GOVERNMENT BUSINESS FOR
THE EMPLOYER OF THE RECIPIENT HAVE BEEN HELD INVALID BECAUSE OF THEIR
TENDENCY TO INDUCE IMPROPER SOLICITATION OF PUBLIC OFFICERS AND THE
EXERCISE OF POLITICAL PRESSURE.  STEELE V. DRUMMOND, 275 U.S. 199,
206.  FN14  FOR THE MOST PART THESE CASES HAVE INVOLVED SITUATIONS
WHERE A WOULD-BE CONTRACTOR HAS HIRED A THIRD PERSON ON A CONTINGENT
FEE BASIS TO PROCURE FOR THE FORMER A CONTRACT WITH THE GOVERNMENT. 
BUT NEITHER THE LANGUAGE OF THESE CASES NOR THE POLICY BEHIND THEM
APPLIES TO THE SITUATION INVOLVED IN THIS CASE, WHERE THE GOVERNMENT,
NOT THE WOULD-BE CONTRACTOR, HIRES AN AGENT FOR THE PURPOSE OF
SOLICITING OFFERS FROM OWNERS OF NEEDED LAND, THE AGENT'S COMPENSATION
TO BE CONTINGENT ON SUBMISSION OF OFFERS ACCEPTABLE TO THE GOVERNMENT. 
WE HAVE HERE A CONTINGENT FEE CONTRACT OF AN ENTIRELY DIFFERENT TYPE. 
IT IS THE GOVERNMENT HERE WHO PAYS THE CONTINGENT FEE AND PAYS IT NOT
FOR SECURING A CONTRACT FROM THE GOVERNMENT BUT A CONTRACT FOR THE
GOVERNMENT.  THE AGENT ACTS UNDER THE HIGHEST LEGAL AND MORAL
RESPONSIBILITIES TO HIS PRINCIPAL, THE GOVERNMENT.  THERE IS NO PLACE
FOR FINANCIAL TEMPTATION OR POLITICAL PRESSURE TO INFLUENCE PUBLIC
OFFICIALS.  TENDENTIOUS FRAUD DOES NOT EXIST IN SUCH A CONTINGENT
CONTRACT.  IT MAY BE MOST DESIRABLE TO PAY AGENTS ONLY IN THE EVENT
THAT THEY ARE SUCCESSFUL IN ACCOMPLISHING THEIR PURPOSE.  WE ARE
DEALING HERE WITH PUBLIC POLICY.  CONGRESS MAY THINK THAT IT IS WISE TO
OUTLAW CONTINGENT CONTRACTS SUCH AS THIS BUT UNTIL IT DOES WE CANNOT
SAY THAT THEY ARE CONTRARY TO PUBLIC POLICY, ANY MORE THAN WE COULD SAY
COST-PLUS CONTRACTS ARE CONTRARY TO PUBLIC POLICY IN THE ABSENCE OF
LEGISLATION TO THAT EFFECT. 

IN REACHING THE FOREGOING CONCLUSION ON THE CONTINGENT FEE ASPECT OF
THE PROBLEM, WE LAID ASIDE CONSIDERATION, FROM THE STANDPOINT OF PUBLIC
POLICY, OF THE FACT THAT THE CONTINGENT FEE IS TO BE MEASURED BY A
CERTAIN PERCENTAGE OF THE PURCHASE PRICE.  WE NOW CONSIDER THAT.  THE
RECORD GIVES NO SATISFACTORY EXPLANATION FOR THE APPARENTLY INGENUOUS
ACTION OF THE REAL ESTATE BRANCH OF THE WAR DEPARTMENT IN PAYING A
COMMISSION ON THE PURCHASE PRICE TO ITS SOLICITING AGENT.  CERTAINLY
THE OFFICERS REALIZED THE POSSIBILITY OF AND TEMPTATION TO PRICE
INFLATION.  NECESSITY FOR SPEEDY ACQUISITION COULD NOT HAVE BEEN THEIR
MOTIVE IN VIEW OF THE POSSIBILITIES OF A DECLARATION OF TAKING.  46
STAT. 1421.  IT WELL MAY BE THAT EXPERIENCE WITH CONDEMNATION AWARDS
AND THE COST OF ACQUISITION BY SALARIED GOVERNMENT SERVANTS APPEARED TO
FORESHADOW MORE EXPENSE THAN THE PLAN ADOPTED.  FN15 

IT MAY HAVE BEEN THE DEPARTMENT'S CONCLUSION THAT ITS OFFICERS COULD
REGULATE THE OFFER OF PRICES ABOVE THE MARKET BY A REFUSAL TO ACCEPT
THE OPTIONS.  COLONEL VALLIANT VISITED THE AREA TO GATHER INFORMATION
DURING THE PURCHASES.  OUR INQUIRY AT THIS POINT, SINCE CORRUPTION IS
NOT SHOWN, IS AS TO WHETHER THE LIKELIHOOD OF DISADVANTAGE TO THE
GOVERNMENT IS SO MENACING AS TO PROHIBIT SUCH CONTRACTS REGARDLESS OF
THE EFFECT IN A PARTICULAR CASE. 

NO OTHER CASE HAS COME TO OUR ATTENTION WHICH HAS DECLARED THAT A
COMMISSION OR PURCHASE CONTRACT IS INVALID ON THE GROUND OF PUBLIC
POLICY.  PUBLIC POLICY IS TO BE ASCERTAINED BY REFERENCE TO THE LAWS
AND LEGAL PRECEDENTS AND NOT FROM GENERAL CONSIDERATIONS OF SUPPOSED
PUBLIC INTERESTS.  VIDAL V. PHILADELPHIA, 2 HOW.  127, 197-98.  AS THE
TERM "PUBLIC POLICY" IS VAGUE, THERE MUST BE FOUND DEFINITE INDICATIONS
IN THE LAW OF THE SOVEREIGNTY TO JUSTIFY THE INVALIDATION OF A CONTRACT
AS CONTRARY TO THAT POLICY.  TWIN CITY PIPE LINE CO. V. HARDING GLASS
CO., 283 U.S. 353; FROST & CO. V. COEUR D'ALENE MINES CORP., 312 U.S.
38.  IT IS A MATTER OF PUBLIC IMPORTANCE THAT GOOD FAITH CONTRACTS OF
THE UNITED STATES SHOULD NOT BE LIGHTLY INVALIDATED.  ONLY DOMINANT
PUBLIC POLICY WOULD JUSTIFY SUCH ACTION.  IN THE ABSENCE OF A PLAIN
INDICATION OF THAT POLICY THROUGH LONG GOVERNMENTAL PRACTICE OR
STATUTORY ENACTMENTS, OR OF VIOLATIONS OF OBVIOUS ETHICAL OR MORAL
STANDARDS, THIS COURT SHOULD NOT ASSUME TO DECLARE CONTRACTS OF THE WAR
DEPARTMENT CONTRARY TO PUBLIC POLICY.  FN16  THE COURTS MUST BE CONTENT
TO AWAIT LEGISLATIVE ACTION. 

THE GOVERNMENT CALLS ATTENTION TO CRIMINAL CODE, SECS. 41, 112 AND
113, AND THE ACT OF MARCH 3, 1917, 39 STAT. 1106,  FN17  AS INDICATIVE
OF A DECLARED PUBLIC POLICY AGAINST AN AGENT OF THE UNITED STATES BEING
PERMITTED TO HAVE A PECUNIARY INTEREST IN A CONTRACT WHEN THAT INTEREST
WOULD BE ENHANCED IN VALUE AT AN EXPENSE TO THE UNITED STATES.  BUT
THESE SECTIONS RELATE TO A GOVERNMENT OFFICIAL'S REPRESENTATION OF THE
GOVERNMENT IN MATTERS INVOLVING A PRIVATE CORPORATION OR FIRM IN WHICH
THE GOVERNMENT AGENT HAS AN INTEREST, OR A GOVERNMENT OFFICIAL'S
RECEIPT OF CONSIDERATION FOR PROCURING A CONTRACT FROM THE GOVERNMENT
FOR ANY PERSON OR FOR ANY SERVICE RENDERED IN RELATION TO ANY SUCH
CONTRACT, OR RECEIPT OF ANY SALARY OR SUPPLEMENT TO SALARY IN
CONNECTION WITH HIS GOVERNMENT SERVICES FROM ANY SOURCE OTHER THAN THE
GOVERNMENT OF THE UNITED STATES.  THUS THESE SECTIONS MANIFEST A
LEGISLATIVE INTENTION TO BAR A GOVERNMENT AGENT FROM RECEIVING PAY FROM
A THIRD PARTY FOR ASSISTING THAT THIRD PARTY TO SECURE A GOVERNMENT
CONTRACT. 

HERE THE PAY WAS FOR SERVICES RENDERED TO THE GOVERNMENT.  IN FORM
THE VENDORS AGREED TO PAY THE COMPENSATION BUT ACTUALLY THE UNITED
STATES WAS THE PAYOR.  AS STATED ABOVE IT WAS MERELY A CONVENIENT WAY
IN WHICH THE GOVERNMENT'S PROMISE TO PAY ITS AGENT COULD BE MET. 

IT IS QUITE CLEAR THAT THESE PROHIBITIONS AGAINST RECEIPT OF
COMPENSATION FROM THIRD PARTIES FOR SECURING CONTRACTS WERE DIRECTED AT
THE CRIME OF BRIBERY IN ITS OPEN OR SUBTLE FORM.  WE DO NOT SEE THAT
THESE STATUTES MANIFEST A PUBLIC POLICY AGAINST THE USE OF A COMMISSION
SYSTEM FOR PUBLIC PURCHASES.  THE CHANGE AFTER EXPERIENCE, FROM THE
COMMISSION SYSTEM OF LAND PURCHASES TO THE SOLICITATION OF OPTIONS BY
SALARIED EMPLOYEES OF THE GOVERNMENT OR FIXED FEE CONTRACTORS,
INDICATES ADMINISTRATIVE JUDGMENT OF DESIRABILITY, NOT ADMINISTRATIVE
CONDEMNATION OF THE LEGALITY OF THE METHOD.  FN18 

SINCE IT IS CONGRESSIONAL ENACTMENTS WHICH DETERMINE PUBLIC POLICY,
ANY DOUBT WHICH MIGHT EXIST AS TO THE LEGALITY OF SUCH AN ARRANGEMENT
AS WAS ADOPTED BY THE WAR DEPARTMENT FOR THIS AND A FEW OTHER PROJECTS
IS DISSIPATED BY THE ACTION OF CONGRESS ON THE MILITARY ESTABLISHMENT
APPROPRIATION BILL FOR 1942.  APPARENTLY A LIMITATION OF COMMISSIONS ON
LAND PURCHASES WAS OMITTED FROM THE BILL IN ACCORDANCE WITH SUGGESTIONS
OF THE WAR DEPARTMENT.  FN19  THE COMMISSION TYPE OF CONTRACT WAS
RECOGNIZED AS APPROPRIATE IN CERTAIN CIRCUMSTANCES BY THE NAVAL
APPROPRIATION ACT OF 1942, 55 STAT. 151, 177.  FN20  A SIMILAR
PROVISION APPEARS IN THE MILITARY APPROPRIATION ACT OF 1944, SEC. 12,
57 STAT. 347, 369.  FN21    WE HAVE CONSIDERED THE GOVERNMENT'S
CONTENTION THAT THE TWO PER CENT LIMITATION MEANS THAT NOT MORE THAN
TWO PER CENT OF THE ESTIMATED PRICE MAY BE PAID AS A FIXED FEE.  FN22
THERE IS NOTHING THAT INDICATES TO US THAT THE PROVISION IS NOT
INTENDED TO APPLY TO THE CONTRACTS FOR COMMISSION ON THE PURCHASE PRICE
OF LAND.  THIS WAS THE SYSTEM WHICH THE WITNESSES CONSIDERED
DANGEROUS.  REVERSED. 

FN1  UNITED STATES V. MUSCHANY, 139 F.2D 661. 

FN2  UNITED STATES V. CERTAIN LAND, 46 F.SUPP.  921. 

FN3  THE PERTINENT PARTS OF THE MCDOWELL AGENCY CONTRACT ARE: 

"3.  THE OPTIONER SHALL DILIGENTLY ENDEAVOR TO ACQUIRE SUCH OPTIONS,
NOT ONLY WITHIN SUCH TIME, BUT AT THE REASONABLE VALUE OF THE LAND TO
BE ACQUIRED, AND SUBJECT AT ALL TIME TO THE DIRECTIONS OF THE
GOVERNMENT.  THE FORM OF OPTION CONTRACTED TO BE EXECUTED, AND ALL
TERMS, COVENANTS AND CONDITIONS THEREOF, SHALL BE ON THE FORM APPROVED
BY THE GOVERNMENT, AND A COPY OF WHICH IS TO BE ATTACHED HERETO AND
MADE A PART HEREOF.  IT IS UNDERSTOOD THAT THE GOVERNMENT IS TO HAVE
THE EXCLUSIVE RIGHT TO TAKE UP OR REJECT ANY OPTION TO ANY PARCEL OF
LAND OPTIONED BY SAID OPTIONER HEREUNDER, EXCEPT AS HEREINAFTER
PROVIDED. 

"4....  THE OPTIONER SHALL PROCURE FROM THE VENDORS IN ALL CASES WHERE
OPTIONS ARE ACCEPTED ON BEHALF OF THE UNITED STATES, AN ORDER TO THE
KANSAS CITY TITLE AND INSURANCE COMPANY, TO PREPARE CERTIFICATES OF
TITLE AND DEEDS AND IT SHALL BE HIS RESPONSIBILITY TO SEE THAT SAID
CERTIFICATES OF TITLE AND DEEDS ARE TRANSMITTED TO THE PROPER
GOVERNMENT OFFICIAL FOR EXAMINATION.  THE CERTIFICATES OF TITLE TO BE
FURNISHED BY THE KANSAS CITY TITLE AND INSURANCE COMPANY WILL BE ON
FORMS SIMILAR TO THE ONE ATTACHED HERETO AND MADE A PART HEREOF AND
FUNDS TO EFFECT CLOSING OF PURCHASES BY THE TITLE COMPANY WILL BE
FURNISHED BY THE GOVERNMENT TO THE TITLE COMPANY IN FORM OF CHECKS
PAYABLE TO EACH VENDOR IN THE AMOUNT OF THE PURCHASE PRICE SET FORTH IN
THE ACCEPTED OPTIONS." 

"8.  FOR ALL SERVICES HEREUNDER THE COMPENSATION OF THE OPTIONER
SHALL CONSIST SOLELY OF THE FIVE PER CENT (5%) COMMISSION IN EACH
PURCHASE, TO BE PAID BY THE VENDOR, AS MORE SPECIFICALLY SET FORTH IN
THE FORM OF OPTION ATTACHED HERETO AND MADE A PART HEREOF." 

FN4  "UPON EXERCISE OF THIS OPTION BY THE GOVERNMENT, THE UNDERSIGNED
AGREES TO PAY TO R. NEWTON MCDOWELL A COMMISSION OF FIVE PER CENT (5%)
OF THE GROSS SALES PRICE AS FULL PAYMENT FOR THE SERVICES OF SAID R.
NEWTON MCDOWELL IN PROCURING SUCH SALE, PREPARING THE DEED OR DEEDS FOR
THE CONVEYANCE OF SAID LAND AND ARRANGING FOR SETTLEMENT AND CLOSING OF
THE TRANSACTION. 

"UPON FURNISHING OF FINAL CERTIFICATE OF TITLE AS ABOVE SHOWING TITLE
TO BE VESTED IN THE UNITED STATES OF AMERICA, THE AGREED PURCHASE PRICE
ABOVE MENTIONED WILL BE PAID BY THE GOVERNMENT TO THE UNDERSIGNED. 

"IF FOR ANY REASON THE TITLE TO THE LAND IS NOT APPROVED BY THE
ATTORNEY GENERAL, THE GOVERNMENT WILL PROCEED TO ACQUIRE THE LAND BY
CONDEMNATION PROCEEDINGS INSTITUTED IN THE DISTRICT COURT OF THE UNITED
STATES IN WHICH SAID PROPERTY IS LOCATED, UNDER A CONSENT VERDICT
FIXING THE AWARD AT THE AGREED VALUATION AND IN ACCORDANCE WITH ALL THE
TERMS AND PROVISIONS OF THIS OPTION AND WILL UPON FILING ITS PETITION
IN SUCH PROCEEDINGS DEPOSIT SAID AGREED PURCHASE PRICE WITH THE CLERK
OF SAID COURT, SAME TO BE DISBURSED BY SAID OFFICER PURSUANT TO THE
DECREE ENTERED IN SUCH CONDEMNATION PROCEEDINGS." 

FN5  A STIPULATION CONSOLIDATES THE RECORD OF THE TWO CASES BEFORE US
AND A THIRD CASE, NOT HERE INVOLVED, UNITED STATES V. 94.68 ACRES OF
LAND, 45 F.SUPP.  1016, AND AUTHORIZES ITS USE "AS A PART OF THE RECORD
IN EACH OF THE TWO" CASES HERE ON REVIEW.  WHILE THE CASES HAVE NOT
BEEN CONSOLIDATED, ONE WAS SET ON OUR DOCKET FOR HEARING FOLLOWING THE
OTHER, THE UNITED STATES HAS FILED A SINGLE BRIEF AND PETITIONERS A
JOINT REPLY BRIEF. 

FN6  IN THE MUSCHANY CASE, THE AVERAGE VALUATION OF EIGHT GOVERNMENT
WITNESSES, FOR LAND UPON WHICH THE OPTION WAS TAKEN AT $4,500, WAS
$1,972.  THE AVERAGE VALUATION OF SEVEN OF RESPONDENT'S WITNESSES WAS
$4,546.  46 F.SUPP.  925. 

NO FINDING OF VALUE APPEARS FOR THE ANDREWS CASE BUT THE EVIDENCE
SHOWS AN AVERAGE VALUATION BY GOVERNMENT WITNESSES OF $3,114 AND BY THE
VENDOR AND ONE OF HIS WITNESSES OF $12,000. 

FN7  PETITIONERS IN NO. 31 CONTRACTED TO SELL THE GOVERNMENT CERTAIN
LAND FOR $4,500, WHICH THEY HAD PURCHASED IN 1939 FOR $1,000.  THE
RECORD INDICATES THAT SINCE PURCHASING THIS LAND IN 1939, VARIOUS
IMPROVEMENTS HAD BEEN MADE.  AT THE TIME OF PURCHASE THERE WAS NO
HIGHWAY LEADING FROM THE MAIN ROAD TO THE PROPERTY; A THICKET WAS
CLEARED AND A ROAD CONSTRUCTED WHICH PASSED OVER AN ADJOINING PIECE OF
PROPERTY.  THE CULTIVABLE AREA OF LAND WAS INCREASED BY CLEARING TIMBER
THICKETS FROM PART OF THE PROPERTY.  A LOCAL DRAINAGE DISTRICT SURFACED
WITH ROCK THE RIVER FRONTAGE OF THE PROPERTY, PRESUMABLY TO STOP
EROSION.  THERE IS ALSO EVIDENCE INDICATING THAT PETITIONERS IN NO. 31
MADE A VERY GOOD BUY WHEN THEY PURCHASED THIS LAND FOR $1,000.  IT WAS
IN THE HANDS OF PRIOR OWNERS WHO HAD ALLOWED $800 IN BACK TAXES TO
ACCUMULATE ON THE PROPERTY.  AS TO PETITIONERS IN NO. 32, THEY SOLD
LAND TO THE GOVERNMENT IN 1940 AT A PRICE OF $12,000 FOR WHICH THEY
PAID $2,250 IN 1934.  THE LAPSE OF A SIX-YEAR PERIOD OF TIME, THE
CHANGE IN ECONOMIC CONDITIONS FROM THOSE OF A SEVERE AGRICULTURAL
DEPRESSION TO ONE OF WARTIME AGRICULTURAL PROSPERITY FURNISHES SOME
EXPLANATION FOR THE DISPARITY BETWEEN THE PRICE PAID FOR THE LAND IN
1934 AND THE PRICE AT WHICH IT WAS VALUED IN 1940. 

FN8  LEGISLATION IN REGARD TO THE RENEGOTIATION OF WAR CONTRACTS IS
NOT APPLICABLE TO EITHER OF THE CONTRACTS INVOLVED IN THIS CASE.  SEE
REVENUE ACT OF 1942, CH. 619, 56 STAT. 798, TITLE VIII - RENEGOTIATION
OF WAR CONTRACTS - SEC. 801(C)(6); REVENUE ACT OF 1943, C. 63, 58 STAT.
21, 78TH CONG., 2D SESS., TITLE VII, SEC. 701(B), SEC. 403(C)(6). 

FN9  ACT OF JULY 2, 1917, 40 STAT. 241; ACT OF APRIL 11, 1918, 40
STAT. 518. 

FN10  R.S. SEC. 1136; R.S. SEC. 3734; 10 U.S.C. SEC. 1336; THE WALSH
HEALEY OR PREVAILING MINIMUM WAGE ACT, 49 STAT. 2036. 

FN11  54 STAT. 712:  "THAT (A) IN ORDER TO EXPEDITE THE BUILDING UP
OF THE NATIONAL DEFENSE, THE SECRETARY OF WAR IS AUTHORIZED, OUT OF THE
MONEYS APPROPRIATED FOR THE WAR DEPARTMENT FOR NATIONAL-DEFENSE
PURPOSES FOR THE FISCAL YEAR ENDING JUNE 30, 1941, WITH OR WITHOUT
ADVERTISING, (1) TO PROVIDE FOR THE NECESSARY CONSTRUCTION,
REHABILITATION, CONVERSION, AND INSTALLATION AT MILITARY POSTS, DEPOTS,
STATIONS, OR OTHER LOCALITIES, OF PLANTS, BUILDINGS, FACILITIES,
UTILITIES, AND APPURTENANCES THERETO (INCLUDING GOVERNMENT-OWNED
FACILITIES AT PRIVATELY OWNED PLANTS AND THE EXPANSION OF SUCH PLANTS,
AND THE ACQUISITION OF SUCH LAND, AND THE PURCHASE OR LEASE OF SUCH
STRUCTURES, AS MAY BE NECESSARY), FOR THE DEVELOPMENT, MANUFACTURE,
MAINTENANCE, AND STORAGE OF MILITARY EQUIPMENT, MUNITIONS, AND
SUPPLIES, AND FOR SHELTER; ...  PROVIDED, THAT THE LIMITATIONS
CONTAINED IN SECTIONS 1136 AND 3734 OF THE REVISED STATUTES, AS
AMENDED, AND ANY STATUTORY LIMITATION WITH RESPECT TO THE COST OF ANY
INDIVIDUAL PROJECT OF CONSTRUCTION, SHALL BE SUSPENDED UNTIL AND
INCLUDING JUNE 30, 1942, WITH RESPECT TO ANY CONSTRUCTION AUTHORIZED BY
THIS ACT:  PROVIDED FURTHER, THAT NO CONTRACT ENTERED INTO PURSUANT TO
THE PROVISIONS OF THIS SECTION WHICH WOULD OTHERWISE BE SUBJECT TO THE
PROVISIONS OF THE ACT ENTITLED 'AN ACT TO PROVIDE CONDITIONS FOR THE
PURCHASE OF SUPPLIES AND THE MAKING OF CONTRACTS BY THE UNITED STATES,
AND FOR OTHER PURPOSES', APPROVED JUNE 30, 1936(49 STAT. 2036; U.S.C.,
SUPP. V, TITLE 41, SECS. 35-45), SHALL BE EXEMPT FROM THE PROVISIONS OF
SUCH ACT SOLELY BECAUSE OF BEING ENTERED INTO WITHOUT ADVERTISING
PURSUANT TO THE PROVISIONS OF THIS SECTION:  PROVIDED FURTHER, THAT THE
COST-PLUS-A-PERCENTAGE-OF-COST SYSTEM OF CONTRACTING SHALL NOT BE USED
UNDER THIS SECTION; BUT THIS PROVISO SHALL NOT BE CONSTRUED TO PROHIBIT
THE USE OF THE COST-PLUS-A-FIXED-FEE FORM OF CONTRACT WHEN SUCH USE IS
DEEMED NECESSARY BY THE SECRETARY OF WAR." 

FN12  86 CONG. REC. 7839, 7841, 7843.  THE PROVISO AS ADOPTED BY THE
SENATE READ:  "THAT WHAT IS KNOWN AS THE COST-PLUS SYSTEM OF
CONTRACTING SHALL NOT BE USED UNDER THIS SECTION."  WE DO NOT KNOW THE
PRECISE REASON FOR THE CHANGE FROM THIS LANGUAGE TO THE PRESENT, AS IT
TOOK PLACE IN CONFERENCE.  THE STATEMENT FROM THE MANAGERS ON THE PART
OF THE HOUSE READS: 

"(THE CONFERENCE BILL) SUBSTITUTES FOR THE LIMITATION UPON THE USE OF
THE COST-PLUS SYSTEM OF CONTRACTING A PROVISION WHICH BARS THE USE OF
THE COST-PLUS-A-PERCENTAGE-OF-COST SYSTEM BUT ALLOWS THE SECRETARY OF
WAR, WHEN HE DEEMS IT NECESSARY, TO USE THE COST-PLUS-A-FIXED-FEE FORM
OF CONTRACT."  H. REP. NO. 2578, 76TH CONG., 3D SESS., P. 6.  IT MIGHT
BE INFERRED THAT THE CHANGE WAS MADE TO ACCORD WITH THE CLAUSE ALLOWING
COST-PLUS-A-FIXED-FEE.  WHATEVER THE REASON FOR THE CHANGE THE FINAL
FORM IS LESS RESTRICTIVE ON THE WAR DEPARTMENT THAN THE "COST-PLUS"
SYSTEM WHICH WAS FIRST FORBIDDEN. 

FN13  BUT SEE UNITED STATES V. TWO ACRES OF LAND, 144 F.2D 207. 

FN14  CF. PROVIDENCE TOOL CO. V. NORRIS, 2 WALL.  45; TRIST V. CHILD,
21 WALL.  441, 449-52; HAZELTON V. SHECKELLS, 202 U.S. 71, 78, 79;
CROCKER V. UNITED STATES, 240 U.S. 74, 78-81. 

FN15 TESTIMONY OF UNDER SECRETARY PATTERSON, APRIL 29, 1941, BEFORE
THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF
REPRESENTATIVES, ON THE MILITARY ESTABLISHMENT APPROPRIATION BILL FOR
1942, 77TH CONG., 1ST SESS., P. 106. 

FN16  CF. CHICAGO, ST. L. & N.O.R. CO. V. PULLMAN CAR CO., 139 U.S.
79, 89; BALTIMORE & OHIO S.W.R. CO. V. VOIGT, 176 U.S. 498, 513-520. 

AS EXAMPLES OF CONTRACTS WHICH HAVE BEEN HELD INVALID AS ACTS OR
CONTRACTS AGAINST PUBLIC POLICY, SEE SPROTT V. UNITED STATES, 20 WALL. 
459; MCMULLEN V. HOFFMAN, 174 U.S. 639; BURT V. UNION CENTRAL LIFE INS.
CO., 187 U.S. 362. 

FN17  SEE ALSO EXECUTIVE ORDER 9001, TITLE I, SEC. 1, TITLE II, SECS.
5, 6, 6 FED. REG. 6787; 50 U.S.C. SEC. 611, N. (APPENDIX). 

FN18  SEE THE TESTIMONY OF UNDER SECRETARY PATTERSON, HEARINGS BEFORE
THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF
REPRESENTATIVES, ON THE MILITARY ESTABLISHMENT APPROPRIATION BILL FOR
1942, 77TH CONG., 1ST SESS., P. 106. 

FN19  HEARINGS, SUPRA, N. 18, P. 106; HEARINGS BEFORE THE
SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE,
77TH CONG., 1ST SESS., ON H.R. 4965, PP. 47-48. 

FN20  55 STAT. 177:  "SEC.  7.  NO PART OF ANY MONEY APPROPRIATED
HEREIN OR INCLUDED UNDER ANY CONTRACT AUTHORITY HEREIN GRANTED SHALL BE
EXPENDED FOR THE PAYMENT OF ANY COMMISSION ON ANY LAND PURCHASE
CONTRACT IN EXCESS OF 2 PER CENTUM OF THE PURCHASE PRICE." 

FN21  SEE ALSO EXECUTIVE ORDER NO. 9001, TITLE I, 6 FED. REG. 6787,
50 U.S.C. SEC. 611, N. (APPENDIX). 

FN22  SEE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON
APPROPRIATIONS, HOUSE OF REPRESENTATIVES, 77TH CONG., 1ST SESS., ON THE
NAVY DEPARTMENT APPROPRIATION BILL FOR 1942, PP. 502-504, 505-509;
HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS,
U.S. SENATE, 77TH CONG., 1ST SESS., ON THE MILITARY ESTABLISHMENT
APPROPRIATION BILL FOR 1942, PP. 46-50, 53. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

THE CONSTITUTION PROVIDES THAT THE GOVERNMENT SHALL NOT TAKE PRIVATE
PROPERTY FOR A PUBLIC PURPOSE WITHOUT PAYMENT OF JUST COMPENSATION. 
THE PROBLEM HERE IS WHETHER THE ARRANGEMENTS NOW BEFORE US GIVE RISE TO
ENFORCIBLE AGREEMENTS OR WHETHER THE RIGHTS OF THE PARTIES ARE TO BE
GOVERNED BY THE CONSTITUTIONAL REQUIREMENT FOR "JUST COMPENSATION" FOR
THE LAND NEEDED BY THE GOVERNMENT.  MORE SPECIFICALLY, THE QUESTION IS
WHETHER IN THE SITUATION REVEALED BY THIS RECORD THE LAW DEMANDS THAT
CERTAIN PROPERTY HOLDERS SHALL RECEIVE IN PAYMENT FOR THEIR PROPERTIES
AMOUNTS WHICH, EVEN IN THE ABSENCE OF A FINDING OF FRAUD, MAY WELL BE
FAR IN EXCESS OF WHAT IS "JUST COMPENSATION," THEREBY IMPOSING AN
UNJUST BURDEN ON THE PUBLIC.  THE COURT SAYS "YES"; I SAY "NO." 

THE AGREEMENTS WERE EXECUTED UNDER THE FOLLOWING CIRCUMSTANCES.  A
WAR DEPARTMENT REPRESENTATIVE AGREED THAT ONE MCDOWELL SHOULD UNDERTAKE
TO SECURE OPTIONS TO BUY 18,000 ACRES OF LAND AT WELDON SPRINGS,
MISSOURI, WHERE THE GOVERNMENT WAS ABOUT TO BUILD A WAR MUNITIONS
PLANT.  UNDER THE ORIGINAL AGREEMENT, MCDOWELL WAS TO RECEIVE FROM THE
GOVERNMENT A COMMISSION OF 5% OF THE GROSS SALE PRICE OF EACH PARCEL OF
LAND.  LATER, MCDOWELL, PRESUMABLY WITH THE ACQUIESCENCE OF THE
CONTRACTING OFFICER, ADOPTED A PLAN UNDER WHICH THE LANDOWNERS EXECUTED
OPTIONS FOR A PRICE WHICH INCLUDED THE 5% COMMISSION.  THUS, THE LESS
THE COST OF THE LANDS THE LESS MCDOWELL WOULD MAKE; THE GREATER THE
COST, THE GREATER HIS COMMISSION. 

THE ENSUING RESULTS WERE, IF NOT INEVITABLE, AT LEAST NOT
SURPRISING.  WITH PHENOMENAL SPEED MCDOWELL OBTAINED 270 SEPARATE
OPTIONS AND PROMPTLY RECOMMENDED THEIR PURCHASE TO THE DEPARTMENT AT
THE STIPULATED PRICES.  ON WHAT APPEARS TO HAVE BEEN NO MORE THAN AN
INESCAPABLY FORMAL EXAMINATION OF THESE RECOMMENDATIONS,  FN1  129
OPTIONS WERE ACCEPTED AND CONTRACTS OF PURCHASE WERE EXECUTED AT AN
EXPENSE OF APPROXIMATELY A MILLION DOLLARS TO THE GOVERNMENT.  AFTER AN
INVESTIGATION OF THE WHOLE AFFAIR BY THE DEPARTMENT OF JUSTICE THE
REMAINING 149 CONTRACTS WERE REPUDIATED BY THE GOVERNMENT, CONDEMNATION
PROCEEDINGS WERE FILED, AND IMMEDIATE POSSESSION OF THE LAND WAS
AWARDED THE GOVERNMENT.  SEE 46 STAT. 1421.  IN THE CONDEMNATION
PROCEEDINGS THE GOVERNMENT SOUGHT, AS TO THE UNCOMPLETED MCDOWELL
TRANSACTIONS, TO PAY NO MORE THAN JUST COMPENSATION FOR THE
PROPERTIES.    THIS COURT NOW HOLDS THAT THE GOVERNMENT IS IRREVOCABLY
BOUND BY THE CONTRACTING OFFICER'S "ACCEPTANCE" OF THE MCDOWELL
OPTIONS.  AND WHILE THE IMMEDIATE JUDGMENT DIRECTLY AFFECTS ONLY THE
TWO PIECES OF PROPERTY HERE INVOLVED, THE PRINCIPLES ANNOUNCED UPHOLD
THE VALIDITY OF ALL THE MCDOWELL-PROCURED AGREEMENTS, EVEN THOUGH THE
AGREED COST STIPULATED IN THOSE AGREEMENTS MIGHT IN CONDEMNATION
PROCEEDINGS BE JUDICIALLY DETERMINED TO EXCEED JUST COMPENSATION.  THE
DISTRICT COURT IN THESE TWO CASES DID NOT DETERMINE WHAT WOULD BE JUST
COMPENSATION.  IT FOUND NO MORE THAN THAT THE OPTION AGREED PRICE OF
THESE PARTICULAR LANDS WAS NOT "UNREASONABLY EXCESSIVE."  THE DISTRICT
COURT DID NOT FIND THAT THE AGREED PRICES REPRESENT A FAIR MARKET
VALUE; THE OPINION OF THE CIRCUIT COURT OF APPEALS MAKES IT CLEAR
BEYOND DOUBT THAT IT WAS IMPOSSIBLE TO MAKE SUCH A FINDING.  THE RECORD
SHOWS THAT THE GOVERNMENT WILL NOW BE REQUIRED TO PAY THE PETITIONERS
IN NO. 31 A VALUE, AS OF 1940, OF $4,500.00, OR $165.00 PER ACRE, FOR
LAND WHICH PETITIONERS BOUGHT IN 1939 FOR $1,000.00, OR $33.33 PER
ACRE.  THE OTHER PETITIONERS ARE TO BE THE BENEFICIARIES OF A SIMILAR
"CONTRACT" BOUNTY.  FOR LANDS AND IMPROVEMENTS WHICH COST THEM
$2,250.00 IN 1934, OR ABOUT $24.00 PER ACRE, THE GOVERNMENT MUST PAY
$12,000.00, OR $127.00 PER ACRE.  FN2 

THE DETAILS OF THE NEGOTIATIONS BETWEEN MCDOWELL AND THE LANDOWNERS
ARE SET OUT IN THE OPINION OF THE CIRCUIT COURT OF APPEALS AND NEED NOT
BE REPEATED AT LENGTH HERE.  REFERENCE IS THERE MADE TO SUCCESSIVE
RECOMMENDATIONS BY MCDOWELL ON THE SAME PARCEL OF LAND FOR PURCHASE AT
$4,500.00, $10,000.00 AND $4,900.00.  IN ANOTHER INSTANCE A LANDOWNER
REFUSED THE REQUEST OF ONE OF MCDOWELL'S REPRESENTATIVES TO UP THE
PRICE OF HIS PROPERTY $50.00 PER ACRE.  STILL OTHER ILLUSTRATIVE ITEMS
INCLUDED IN AGREED PRICES, SUCH AS THOSE WHICH THE COURT TODAY HOLDS
INVULNERABLE, ARE "ONE YEAR'S LOSS IN SALARY OF EACH PARTNER" AND
$6,500.00 FOR "LOSS OF BUSINESS." 

NOTHING BUT THE CLEAREST AND MOST UNEQUIVOCAL CONGRESSIONAL ENACTMENT
COULD IN MY JUDGMENT BIND THE GOVERNMENT TO SUCH ARRANGEMENTS.  THERE
IS NO SUCH ENACTMENT.  AND EVEN IF CONGRESS HAD NOT ITSELF CONDEMNED
SUCH CONTRACTS AS THESE, CONCEIVABLY, THEY ARE WITHIN THE BAN OF
PRINCIPLES PREVIOUSLY ENUNCIATED BY THIS COURT.  FN3  FOR THE TERMS OF
MCDOWELL'S CONTRACT, WHICH WAS AN INTEGRAL PART OF THE PURCHASING
SYSTEM HERE INVOLVED, WERE SUCH THAT THE HARDER HE WORKED TO REDUCE THE
PRICE OF THE LAND HE BOUGHT, THE LESS HE MADE.  HE COULD NOT POSSIBLY
SERVE MOST PROFITABLY HIS OWN INTEREST AND THAT OF THE GOVERNMENT AT
THE SAME TIME.  ONLY BY ACTING TO THE FINANCIAL DISADVANTAGE OF THE
GOVERNMENT COULD HE ACT FOR THE FINANCIAL ADVANTAGE OF HIMSELF. 

IT WAS TO PROTECT THE PUBLIC FROM THE DANGEROUS TENDENCY OF THE
EXCESSES OF JUST SUCH CONTRACTS THAT CONGRESS HAS REPEATEDLY PROHIBITED
FN4  THE WAR DEPARTMENT FROM USING "THE COST-PLUS-A-PERCENTAGE-OF-COST
SYSTEM OF CONTRACTING."  CONGRESS HAD IN 1936 RECEIVED A REPORT FROM A
SPECIAL SENATE COMMITTEE INVESTIGATING THE MUNITIONS INDUSTRY POINTING
OUT THE EVILS OF THAT CONTRACTING SYSTEM.  THAT REPORT SAID:  "IT IS
GENERALLY ADMITTED THAT EXORBITANT PROFITS WERE MADE UNDER COST PLUS A
PERCENTAGE OF COST CONTRACTS IN THE WORLD WAR....  THE PROFITEERING
UNDER COST PLUS A PERCENTAGE OF COST CONTRACTS IN THE LAST WAR WAS SO
FLAGRANT THAT CONGRESS HAS EXPRESSLY DISAPPROVED OF THEIR USE FOR
GOVERNMENT PROCUREMENT."  FN5 

THE SAME SENATOR WHO MADE THIS REPORT, INITIATED A SENATE DISCUSSION
WHICH LED TO THE IMMEDIATE ADOPTION OF THE PROHIBITION OF "COST-PLUS-A
PERCENTAGE-OF-COST" CONTRACTING IN THE ACT HERE INVOLVED.  HE
EXCORIATED THE COST-PLUS-A-PERCENTAGE SYSTEM AS A "VICIOUS" ONE.  FN6
IT WAS THIS "SYSTEM OF CONTRACTING" WHICH CONGRESS FORBADE, A SYSTEM
WHICH FROM ITS VERY NATURE KEEPS CONSTANTLY DANGLING BEFORE THE EYES OF
THE GOVERNMENT'S CONTRACTUAL AGENT HOPE OF A PROGRESSIVELY INCREASING
REWARD FOR HIMSELF FOR EVERY ADDED DOLLAR OF COST HE CAN GET THE
GOVERNMENT TO PAY.  THIS SYSTEM OF CONTRACTING WAS NOT DEEMED "VICIOUS"
FOR LACK OF "CERTAINTY" AS TO COSTS, BUT BECAUSE OF THE "CERTAINTY" OF
ITS INEXORABLE TENDENCY TO ELEVATE THOSE COSTS TO HEIGHTS WHICH WOULD
IMPOSE UNFAIR BURDENS ON THE PUBLIC TREASURY. 

THAT THIS WAS THE MOVING PURPOSE IN PROHIBITING SUCH A CONTRACT
SYSTEM IS FURTHER SHOWN BY THE FACT THAT CONGRESS AT THE SAME TIME
PERMITTED A "COST-PLUS-A-FIXED-FEE FORM OF CONTRACT."  CERTAINLY
CONGRESS COULD NOT THEREBY HAVE INTENDED TO REDUCE THE SCOPE OF ITS
SWEEPING CONDEMNATION OF "COST-PLUS-A-PERCENTAGE-OF-COST SYSTEM."  ON
THE CONTRARY, PERMISSION TO USE THE FIXED FEE CONTRACT BUT UNDERLINES
THE CONGRESSIONAL INTENT ABSOLUTELY TO PROHIBIT ANY WAR DEPARTMENT
AGENT FROM USING A SYSTEM OF CONTRACTING WHICH WOULD IMPOSE UPON THE
GOVERNMENT INFLATED COSTS BY PROVIDING AN INCENTIVE TO PAD COSTS OR TO
TAKE TOO ROSY A VIEW OF VALUE.  WHATEVER OTHER DISADVANTAGES THE COST
PLUS-A-FIXED-FEE SYSTEM MAY HAVE, NO INCENTIVE TO RAISE THE COST ARISES
FROM THE FIXED FEE.  BUT WHEN A PERCENTAGE FEE OR COMPENSATION IS
PROVIDED FOR, WHICH DIMINISHES OR INCREASES IN PROPORTION TO COSTS,
THERE IS AMPLE MOTIVE OR AT LEAST TENDENCY TO INCREASE SUCH COSTS. 
FN7 

THAT INCENTIVE LOOMS LARGE IN THE CONTRACTS HERE INVOLVED.  FN8  IT
MATTERS NOT INTO WHAT FORM THE ARRANGEMENT IS CAST.  IT IS CONCEDED
THAT HAD THIS CONTRACT REQUIRED MCDOWELL HIMSELF OT BUY AND TAKE TITLE
TO THE LANDS, THE ARRANGEMENT WITH HIM WOULD HAVE BEEN WITHIN THE
CONGRESSIONAL PROHIBITION AS A "COST-PLUS-A-PERCENTAGE-OF-COST"
CONTRACT.  BUT THE FACT THAT HE DID NOT TAKE TITLE HIMSELF DID NOT
LESSEN THE TENDENCY OF THE CONTRACTUAL ARRANGEMENT TO INVITE HIM TO
INCREASE HIS REWARD BY INDUCING THE GOVERNMENT TO PAY A HIGH PRICE FOR
THE LAND.  THE DIFFERENCE CREATED BY THIS SLIGHT DEVIATION IN THE
STRUCTURE OF THE ARRANGEMENTS DID NOT ALTER THEIR EFFECT.  THE
"VICIOUS" TENDENCY AT WHICH CONGRESS HIT WAS STILL PRESENT.  THE
GOVERNMENT WAS STILL OBLIGATED TO PAY THE LANDOWNER'S PRICE - THE
LAND'S COST PLUS A PERCENTAGE TO MCDOWELL OF THAT COST.  FURTHERMORE,
THE EFFECT, IF ANY, OF MCDOWELL'S NOT TAKING TITLE HIMSELF, WAS TO
AGGRAVATE THE GOVERNMENT'S PERIL, FOR MCDOWELL DID NOT TAKE ANY RISKS
OF PURCHASE.  TO HOLD THAT THESE ARRANGEMENTS ARE LEGAL IS TO LEAVE
UNCHECKED A SYSTEM OF GOVERNMENT PURCHASING WHICH CONGRESS HAS DECLARED
TO BE INCOMPATIBLE WITH THE PUBLIC INTEREST. 

IT IS SAID THAT STATUTES PROVIDING FOR THE RENEGOTIATION OF WAR
CONTRACTS INDICATE THAT IN "CERTAIN INSTANCES THE GOVERNMENT SEEKS TO
RECOVER ABNORMALLY HIGH CONTRACT PROFITS."  THESE EFFORTS OF CONGRESS
TO SAFEGUARD THE PUBLIC INTEREST AGAINST UNJUST EXACTIONS PROVIDE NO
EXCUSE FOR THE NARROW CONSTRUCTION THE COURT TODAY GIVES THE "COST-PLUS
A-PERCENTAGE-OF-COST" PROHIBITION.  THEY BUT EMPHASIZE THE INTENTION OF
CONGRESS TO DEVISE MANY SAFEGUARDS AGAINST UNFAIR PROCUREMENT PRICES
WHICH MIGHT UNJUSTLY ENRICH SOME FEW PEOPLE AT THE EXPENSE OF THE
MANY.  I SHOULD THINK THAT IF THESE STATUTES COULD BE GIVEN ANY EFFECT,
UNDER THE CIRCUMSTANCES OF THESE CASES, THEY WOULD BUT PROVIDE AN ADDED
REASON WHY THE GOVERNMENT SHOULD NOT BE REQUIRED TO PAY THESE
LANDOWNERS MORE THAN "JUST COMPENSATION."  CERTAINLY, IN THE LIGHT OF
THE LEGISLATIVE POLICY ARTICULATED IN THE RENEGOTIATION STATUTES, I CAN
SEE NO REASON WHY THIS COURT SHOULD WORK OVERTIME TO SHRINK THE SCOPE
OF THE COST-PLUS-A-PERCENTAGE-OF-COST STATUTORY PROHIBITION. 

THE COURT'S JUDGMENT IN EFFECT UPHOLDS MCDOWELL'S PERCENTAGE
AGREEMENT WITH THE GOVERNMENT AND THE OPTION AGREEMENTS WITH THE
LANDOWNERS MADE PURSUANT THERETO.  IT REQUIRES FULL PAYMENT NOT ONLY OF
THE STIPULATED LAND PRICES BUT OF MCDOWELL'S COMMISSIONS AS WELL.  THIS
IS SO BECAUSE THE $4,500.00 AND $12,000.00 INCLUDED THE COST OF THE
LAND PLUS THE PERCENTAGE OF THAT COST WHICH WAS MCDOWELL'S COMMISSION. 
THUS, AFFIRMANCE OF THE DISTRICT COURT JUDGMENTS NECESSARILY MUST IMPLY
THAT MCDOWELL'S COMMISSION AGREEMENTS WITH THE GOVERNMENT ARE VALID. 

THE LANDOWNERS' RIGHTS ARE INDISSOLUBLY INTERTWINED WITH MCDOWELL'S.
FN9  BOTH MUST STAND OR FALL TOGETHER ON THE VALIDITY OF MCDOWELL'S AND
THE LANDOWNERS' ARRANGEMENTS WITH THE GOVERNMENT.  AND UNDER THOSE
ARRANGEMENTS THE GOVERNMENT WAS TO PAY COST OF THE LANDS FOR WHICH
MCDOWELL NEGOTIATED PLUS FIVE PERCENT OF THAT COST.  THIS WAS A "COST
PLUS-A-PERCENTAGE OF COST SYSTEM OF CONTRACTING."  SUCH AN INTEGRATED
SCHEME OF ILLEGAL ARRANGEMENTS SHOULD NOT BE PERMITTED TO SUPPORT THESE
JUDGMENTS.  THE GOVERNMENT SHOULD BE REQUIRED TO PAY NO MORE THAN JUST
COMPENSATION FOR THE LANDS IT HAS CONDEMNED.  FN10 

FINALLY, I CANNOT AGREE TO THE COURT'S STATEMENT THAT THIS CASE COMES
TO US "WITHOUT ANY SUGGESTION OF FRAUD OR UNFAIRNESS SUCH AS WOULD
JUSTIFY HOLDING THE CONTRACT INVALID."  THE COURT'S OPINION STATES THAT
THOSE WHO DEAL WITH THE GOVERNMENT MUST DO SO "WITH ABSOLUTE HONESTY,"
AND THAT "THE DOCTRINES OF FRAUD, UNCONSCIONABLE DEALING AND UNJUST
ENRICHMENT ARE TO BE STRICTLY APPLIED TO INSURE FAIR AND HONEST DEALING
BETWEEN THE GOVERNMENT AND ITS CITIZENS."  IN MY JUDGMENT, WE ARE
SQUARELY CONFRONTED WITH THE ISSUES OF FRAUD, UNCONSCIONABLE DEALING,
AND UNJUST ENRICHMENT.  I THINK WE SHOULD REMAND THE CASE TO THE
CIRCUIT COURT SO THAT IT CAN PASS UPON THOSE QUESTIONS. 

WE ARE NOT FACED HERE WITH A SITUATION IN WHICH FINDINGS, UPON "AMPLE
EVIDENCE," HAVE BEEN CLEARLY MADE BY A MASTER AND UNEQUIVOCALLY AND
JOINTLY AFFIRMED BY BOTH A DISTRICT COURT AND CIRCUIT COURT OF APPEALS
AS IN UNITED STATES V. BETHLEHEM STEEL CO., 315 U.S. 289, 297-9.  FN11
THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS DID NOT, IN THE
INSTANT CASE, BOTH CONCURRENTLY FIND AN ABSENCE OF FRAUD,
UNCONSCIONABLENESS AND UNJUST ENRICHMENT. 

THE DISTRICT COURT DID STATE IN ITS OPINION THAT THERE WAS "NO
FRAUD," AND THAT THE OPTION PRICES WERE "NOT UNCONSCIONABLE."  THIS
FINDING OF THE ABSENCE OF FRAUD WAS, HOWEVER, UNSUPPORTED BY THE
PRIMARY FINDINGS OF FACT MADE BY IT, AND THAT COURT'S CONCLUSION RESTED
UPON LEGAL ASSUMPTIONS WHICH I THINK CONTRARY TO MANY DECISIONS OF THIS
COURT.  THE SAME IS TRUE OF THE FINDING OF UNCONSCIONABILITY.  AS TO
"UNJUST ENRICHMENT," THE DISTRICT COURT MADE NO FINDING AT ALL, AND I
BELIEVE THAT ITS PRIMARY FINDINGS OF FACT ARE INCONSISTENT WITH ANY
HOLDING THAT THESE LANDHOLDERS WOULD NOT BE "UNJUSTLY ENRICHED" IF THE
GOVERNMENT IS FORCED TO PAY THE OPTION PRICES. 

THE CIRCUIT COURT OF APPEALS FOUND IT UNNECESSARY TO PASS UPON EITHER
OF THESE QUESTIONS.  IT REFUSED TO INDULGE IN WHAT IT TERMED A
"JUDICIAL PARING" OF THE COST-PLUS-A-PERCENTAGE-OF-COST STATUTORY
PROHIBITION, AND HELD THE CONTRACTS VOID UNDER THAT STATUTE. 

THE DISTRICT COURT CONSIDERED THAT THE GOVERNMENT'S ARGUMENT REQUIRED
IT AFFIRMATIVELY TO FIND THE FOLLOWING THREE FACTS IN ORDER TO HOLD
THAT THERE WAS FRAUD:  "(1) THE AGENT'S COMMISSION WAS ADDED TO THE
PURCHASE PRICE, (2) THE PRICE DID NOT REPRESENT THE REASONABLE MARKET
VALUE OF THE LAND, AND (3) MCDOWELL MISREPRESENTED THE VALUE OF THE
LAND TO COL. VALLIANT." 

AS TO THE LATTER POINT, THE DISTRICT COURT, IN ITS OPINION, STATED
THAT THERE WAS NO MISREPRESENTATION BY MCDOWELL.  THE CIRCUIT COURT OF
APPEALS DID NOT AFFIRM THIS FINDING.  IT DID SAY THAT THE RECORD AND
FINDINGS OF THE TRIAL COURT LEFT NO QUESTION "AS TO THE ACTUAL GOOD
FAITH OF THE QUARTERMASTER DEPARTMENT IN THE MATTER."  BUT AFTER
NARRATING CERTAIN ACTIVITIES OF MCDOWELL, IT OBSERVED THAT "THESE
INCONSISTENCIES AND DISGUISINGS CAN HARDLY BE COMMENDED AS DESIRABLE
METHODS OF HANDLING EXPENDITURES OF PUBLIC FUNDS.  THE EXCUSE MADE BY
THE QUARTERMASTER DEPARTMENT ON THE TRIAL WAS ITS DESIRE TO GET THE JOB
DONE AS SPEEDILY AS POSSIBLE AND 'BECAUSE IN ONE SINGLE VOUCHER WE
COULD PROVIDE FOR THE PAYMENT OF A NUMBER OF DIFFERENT SERVICES.'  THE
RESULT REACHED IN THE OPINION REQUIRES NO FURTHER PURSUIT HERE OF THESE
PARTICULAR MATTERS."  THE CIRCUIT COURT'S OPINION, TAKEN IN ITS
ENTIRETY, SHOWS BEYOND DOUBT THAT IT DID NOT APPROVE THE DISTRICT
COURT'S FINDINGS AS TO MCDOWELL'S DEALINGS. 

THE DISTRICT COURT FURTHER BASED ITS CONCLUSION THAT THERE WAS NO
FRAUD ON A FINDING THAT THE AGENT'S COMMISSION WAS NOT ADDED TO THE
PURCHASE PRICE.  THIS FINDING THE CIRCUIT COURT OF APPEALS EXPRESSLY
REJECTED.  THIS COURT HAS DONE LIKEWISE. 

THE THIRD AND LAST ELEMENT WHICH THE DISTRICT COURT HAD POSED
CONCERNING THE PRESENCE OF FRAUD WAS WHETHER "THE PRICE DID NOT
REPRESENT THE REASONABLE MARKET VALUE OF THE LAND."  NEITHER THE
DISTRICT COURT NOR THE CIRCUIT COURT OF APPEALS FOUND THAT THE PRICE
DID REPRESENT SUCH A VALUE.  IF SUCH A HOLDING HAS BEEN MADE AT ALL, IT
IS BY THIS COURT, AND I CANNOT AGREE TO IT. THE DISTRICT COURT ESCAPED
THE NECESSITY OF MAKING A FINDING AS TO MARKET VALUE BY HOLDING THAT
MARKET VALUE WAS IMMATERIAL SINCE "THE CIRCUMSTANCES OF THIS CASE SHOW
THAT OTHER CONSIDERATIONS WERE IN THE MINDS OF THE PARTIES WHEN THE
OPTION WAS TAKEN.  THE NECESSITY OF NATIONAL DEFENSE HAD FLASHED UPON
THE COUNTRY.  THE IMMINENCE OF THE PERIL WAS IMPRESSIVE.  THE LAND MUST
BE ACQUIRED AT ONCE, WITHOUT THE DELAY INCIDENT TO CONDEMNATION....
THE LAND WAS SOUGHT, BUT MORE WAS DEMANDED; IMMEDIATE POSSESSION WAS
ESSENTIAL TO ITS UNDERTAKING." 

I CAN ACCEPT NEITHER THE COURT'S CONCLUSION, NOR ITS REASONING.  IN
THE FIRST PLACE, THIS COURT HAS LONG HELD "MARKET VALUE" TO BE THE
PROPER STANDARD OF VALUE IN EMINENT DOMAIN PROCEEDINGS, AND IN
CONSIDERING MARKET VALUE IT HAS CONSISTENTLY BEEN HELD THAT LANDOWNERS
ARE NOT ENTITLED TO INCREASED AMOUNTS BECAUSE THE GOVERNMENT ANNOUNCES
THAT IT NEEDS PROPERTY IN A VICINITY.  UNITED STATES V. MILLER, 317
U.S. 369, 374, 376-377.  SECONDLY, IT IS NOVEL DOCTRINE THAT WHEN
NATIONAL PERIL REQUIRES THE GOVERNMENT TO ACQUIRE PROPERTY, THE OWNERS
ARE AS A MATTER OF LAW ENTITLED TO GET MORE THAN MARKET VALUE BECAUSE
MORE IS "DEMANDED."  FURTHERMORE, THE COURT'S ASSUMPTION THAT THE
GOVERNMENT WAS WITHOUT POWER TO GET IMMEDIATE POSSESSION OF THE LAND BY
CONDEMNATION PROCEEDINGS WAS WHOLLY ERRONEOUS.  DECLARATION OF TAKING
ACT, 46 STAT. 1421.    HAVING THUS PUT ASIDE CONSIDERATION OF THE FAIR
OR MARKET VALUE OF THE PROPERTY, THE COURT LIMITED ITSELF TO FINDING
THAT THE OPTION PRICES DID NOT REPRESENT AN "UNREASONABLY EXCESSIVE
VALUE."  WHAT LINE MARKS THE DISTINCTION BETWEEN REASONABLE EXCESS AND
UNREASONABLE EXCESS DOES NOT APPEAR FROM THE DISTRICT COURT'S OPINION
NOR FROM THIS COURT'S OPINION TODAY.  AN EXAMINATION OF THE PARTICULAR
FACTS IN NO. 31 SUGGESTS THE DIFFICULTY OF EVER ASCERTAINING WHAT WOULD
BE AN UNREASONABLY EXCESSIVE VALUE.  IN 1939, $800 BACK TAXES HAD
ACCUMULATED ON 33 ACRES OF LAND.  THE MUSCHANYS BOUGHT IT, PAYING THE
$800 TAXES, $100 TO THE OWNERS, AND APPROXIMATELY $100 WAS ALLEGEDLY
EXPENDED FOR ATTORNEY'S FEE, ABSTRACT OF TITLE, ETC.  IN 1940, THE
"NECESSITY OF NATIONAL DEFENSE HAD FLASHED UPON THE COUNTRY."  THE
FINDING OF THE DISTRICT COURT, WHICH WAS NOT APPROVED BY THE CIRCUIT
COURT OF APPEALS, IS APPARENTLY APPROVED BY THIS COURT TODAY TO THE
EFFECT THAT 350% PROFIT ON THIS PURCHASE OF LAND IS NOT "UNREASONABLY
EXCESSIVE," EVEN THOUGH THE PURCHASER HAS HELD IT FOR ONLY ONE YEAR. 
THE ONLY SUBSIDIARY FINDING OF FACT WHICH THE DISTRICT COURT MADE TO
SUPPORT THIS PHENOMENAL RISE IN VALUE WAS THAT IN 1937 A ROAD HAD BEEN
BUILT WHICH SHORTENED THE DISTANCE TO ST. LOUIS BY ABOUT 15 MILES.  BUT
THIS ROAD HAD BEEN BUILT TWO YEARS BEFORE THE MUSCHANYS PAID OFF THE
BACK TAXES AND TOOK THE PROPERTY INTO THEIR POSSESSION.  THE COURT
TODAY, HOWEVER, REFERS TO CERTAIN OTHER EVENTS WHICH HAD OCCURRED, AND
WHICH ARE EVIDENTLY RELIED UPON AS JUSTIFYING THIS INCREASE IN VALUE
FROM $1,000 TO $4,500 IN THE SHORT SPAN OF A SINGLE YEAR.  IT IS CLEAR
THAT THERE WAS ONE REASON, AND ONE REASON ONLY, FOR THE $4,500 PRICE. 
THAT REASON WAS THAT THE GOVERNMENT NEEDED THE LAND TO HELP WIN THE WAR
AND MCDOWELL HAD A COST-PLUS-A-PERCENTAGE-OF-COST CONTRACT. 

THE CIRCUIT COURT OF APPEALS IN DISCUSSING THIS QUESTION OF VALUE
SAID, "THERE IS, HOWEVER, NO OCCASION FOR US HERE TO REVIEW EITHER THE
GOVERNMENT'S OR THE LANDOWNERS' EVIDENCE AS TO THE VALUE IN THE TWO
CASES.  IF THE VALUE OF THE LAND WERE THE ISSUE TO BE DETERMINED, WE
MIGHT HESITATE TO REJECT THE TRIAL COURT'S FINDINGS IN EITHER CASE,
UNDER RULE 52(A), FEDERAL RULES OF CIVIL PROCEDURE, 28 U.S.C.A.
FOLLOWING SEC. 723C.  BUT THE FINDINGS REFERRED TO ARE NOT
DETERMINATIVE OF THE ISSUE HERE BEING CONSIDERED."  THE CIRCUIT COURT
OF APPEALS THEN WENT ON TO DECIDE THE ONLY QUESTION THAT IT DID DECIDE,
WHICH WAS WHETHER MCDOWELL'S CONTRACT WITH THE GOVERNMENT VIOLATED THE
COST-PLUS-A-PERCENTAGE-OF-COST STATUTE. 

AT THE VERY LEAST, I THINK THE GOVERNMENT IS ENTITLED TO HAVE THE
CIRCUIT COURT OF APPEALS PASS ON THE QUESTIONS OF FRAUD,
UNCONSCIONABILITY, AND UNJUST ENRICHMENT WHICH THIS COURT SAYS "ARE
AVAILABLE WHENEVER AND WHEREVER TRANSGRESSIONS TAKE PLACE." 

FN1 AT THE TIME OF THESE PURCHASES, THE REAL ESTATE SECTION OF THE
QUARTERMASTER CORPS WAS IN CHARGE OF LAND PROCUREMENT.  BECAUSE OF
INTENSIVE NATIONAL DEFENSE ACTIVITY, THIS SECTION HAD UNDER WAY
PURCHASE OF LANDS FOR ONE HUNDRED AND EIGHT SEPARATE PROJECTS,
INVOLVING BETWEEN TWELVE AND FIFTEEN THOUSAND INDIVIDUAL PARCELS, WITH
AN ESTIMATED VALUE OF ABOUT FIFTY MILLION DOLLARS.  THE COLONEL IN
CHARGE OF THE SECTION HAD AT HIS DISPOSAL A STAFF OF THREE COMMISSIONED
OFFICERS AND ABOUT FORTY-ONE CIVILIAN EMPLOYEES.  THIS ARMY OFFICE, IN
CHARGE OF NATION-WIDE LAND PURCHASES, WAS THEREFORE COMPELLED TO RELY
CHIEFLY UPON MCDOWELL'S VALUATIONS. 

THE MUSCHANY TRANSACTION IS A TYPICAL ONE.  NOVEMBER 29, 1940,
MCDOWELL SENT THE OPTION AGREEMENT TO THE WASHINGTON PURCHASING OFFICE
RECOMMENDING ITS "ACCEPTANCE AS A FAIR VALUE TO THE UNITED STATES." 
FOUR DAYS LATER, DECEMBER 3, WITHOUT SEPARATE APPRAISAL OF ANY KIND,
THE WASHINGTON CONTRACTING OFFICER MARKED IT "ACCEPTED."  THIS WAS THE
ONLY CONTRACT EXECUTED WITH THE LANDOWNER BY THE GOVERNMENT, IF SUCH AN
ACTION CAN BE CALLED A CONTRACT AT ALL. 

FN2  IN REFERRING TO THE DISTRICT COURT'S FINDING THAT $12,000.00 WAS
"NOT AN UNREASONABLY EXCESSIVE VALUATION OF THE LAND IN QUESTION," THE
CIRCUIT COURT OF APPEALS MADE THIS COMMENT: 

"THE LATTER FINDING IS PERHAPS A BIT STRAINED, SINCE THE SUBSTANCE OF
THE EVIDENCE ON BEHALF OF THE LANDOWNERS WAS SIMPLY THAT THE LAND HAD A
FARM VALUE OF ONLY $50 AN ACRE (A TOTAL OF $4,725), BUT, AS THE
LANDOWNERS' ONLY VALUE-WITNESS PUT IT, 'I THINK SOMEONE FROM ST. LOUIS
THAT WANTS A SITE WOULD PAY AS HIGH AS $125 AN ACRE (A TOTAL OF
$11,800) FOR THAT GROUND.'" 

FN3  MARSH V. WHITMORE, 21 WALL.  178; MICHOUD V. GIROD, 4 HOW.  503;
PROVIDENCE TOOL CO. V. NORRIS, 2 WALL.  45; HUME V. UNITED STATES, 132
U.S. 406; UNITED STATES V. CARTER, 217 U.S. 286; CROCKER V. UNITED
STATES, 240 U.S. 74; SEE ALSO THE OPINION OF DISTRICT JUDGE COLLET IN
45 F.SUPP.  1016. 

FN4  "AS A RESULT OF EXPERIENCES WITH COST-PLUS-A-PERCENTAGE-OF-COST
CONTRACTS DURING THE FIRST WORLD WAR AND THE EARLY PART OF THIS WAR,
USE OF THIS TYPE OF CONTRACT IS NOW ALMOST WITHOUT EXCEPTION PROHIBITED
BY STATUTE."  C.C.H., WAR LAW SERVICE, GOVERNMENT CONTRACTS, PAR.
1015.  SEE ACT OF JUNE 28, 1940, SEC. 2(A), 54 STAT. 676, 677; ACT OF
MAY 2, 1941, SEC. 2(C), 55 STAT. 148; ACT OF DECEMBER 18, 1941, TITLE
II, SEC. 201, 55 STAT. 839.  SEE ALSO ACT OF JUNE 30, 1941, SEC. 9, 55
STAT. 393, AND ACT OF JUNE 5, 1942, SEC. 13, 56 STAT. 317.  THE
REGULATIONS ISSUED BY THE PRESIDENT UNDER THE FIRST WAR POWERS ACT OF
1941, APPLICABLE TO THE WAR DEPARTMENT, THE NAVY DEPARTMENT, AND THE
UNITED STATES MARITIME COMMISSION, LIKEWISE EXPRESSLY PROHIBIT COST
PLUS-A-PERCENTAGE-OF-COST CONTRACTING.  EXECUTIVE ORDER NO. 9001,
DECEMBER 27, 1941, AS AMENDED, TITLE II, SEC. 6. 

FN5  SENATE REPORT NO. 944, 74TH CONG., 2D SESS., SPECIAL COMMITTEE
INVESTIGATING THE MUNITIONS INDUSTRY, PART 4, AT PAGE 22. 

FN6  "SO THERE IS NOTHING TO HINDER THE PRESENT SECRETARY OF WAR, OR
ANY OTHER SECRETARY OF WAR, IF HE DECIRES TO DO SO, FROM GOING BACK TO
THE OLD, VICIOUS COST-PLUS SYSTEM WHICH WE HAD DURING THE WORLD WAR,
WHEN, IN ONE INSTANCE WHICH FELL UNDER MY OBSERVATION - NOT IN THE WAR
DEPARTMENT, BUT IN THE NAVY DEPARTMENT - IN THE CONSTRUCTION OF NAVAL
VESSELS ON A COST-PLUS 10-PERCENT BASIS, IN MAKING UP THE COST BASE ON
WHICH THE PEOPLE OF THE UNITED STATES WERE REQUIRED NOT ONLY TO PAY
COST BUT TO PAY 10 PERCENT ADDITIONAL, ONE GREAT SHIPBUILDING COMPANY
IN THIS COUNTRY ADDED IN THE COST OF WINES, LIQUORS, AND CIGARS USED ON
THE TRIAL TRIP, AND THE COST OF THE PRIZE GIVEN TO THE LADY WHO
CHRISTENED THE SHIP.  THEY EVEN ADDED IN THE COST OF REPRESENTATIVES
MAINTAINED BY THE COMPANY IN CHINA AND IN JAPAN FOR THE PURPOSE OF
PROMOTING OTHER BUSINESS OF THE COMPANY ON THE THEORY THAT IF THEY
SECURED ANY OUTSIDE BUSINESS IT WOULD REDUCE THE OVERHEAD CHARGEABLE TO
THE GOVERNMENT."  CONG. RECORD, VOL. 86, PART 7, P. 7839, 76TH CONG.,
3D SESS.  ANOTHER SENATOR, IN THE SAME DISCUSSION, SAID WITH REFERENCE
TO THIS SYSTEM OF CONTRACTING, "A MAN WILL SAY, 'I HAVE A RETURN OF 10
PERCENT OF THE CONTRACT PRICE, AND I WILL GET WHAT I CAN UNDER IT, PILE
UP EXPENSES, AND SO FORTH.'"  CONG. RECORD, VOL. 86, PART 7, P. 7841,
76TH CONG., 3D SESS. 

FN7  "THERE ARE TWO GENERAL CLASSES OF 'COST-PLUS' CONTRACTS.  ONE
CLASS IS GENERALLY KNOWN AS 'COST-PLUS-A-PERCENTAGE' CONTRACTS AND THE
OTHER AS 'COST-PLUS-A-FIXED-FEE' CONTRACTS.  THEY ARE MATERIALLY
DIFFERENT.  UNDER THOSE IN THE FIRST CLASS THE FEE OR PROFIT OF THE
CONTRACTOR IS MADE DEPENDENT ON THE COST OF THE WORK WITH THE IDEA THAT
THE AMOUNT OF THE FEE WILL AUTOMATICALLY ADJUST ITSELF TO THE
VARIATIONS IN THE COST OF THE WORK RESULTING FROM CHANGING CONDITIONS
AND REQUIREMENTS DURING THE LIFE OF THE JOB.  IT IS SELF-EVIDENT THAT
UNDER THIS CLASS OF CONTRACT IT IS TO THE FINANCIAL INTEREST OF THE
CONTRACTOR TO HAVE THE COST OF WORK RUN HIGH.  UNDER THE SECOND CLASS,
THE FEE IS NOT AFFECTED BY VARIATIONS IN COSTS, BUT ONLY BY CHANGES IN
THE SCOPE OF THE WORK.  FROM THIS IT FOLLOWS THAT IT IS TO THE
ADVANTAGE OF THE CONTRACTOR TO ACCOMPLISH THE WORK AT AS LOW COSTS AS
POSSIBLE."  THE LAW OF GOVERNMENT CONTRACTS, GRASKE (1941) PP. 122-3. 

FN8 THE CIRCUIT COURT OF APPEALS IN DISCUSSING THE GENERAL TENDENCY
OF THIS SYSTEM OF CONTRACTING TO INCREASE COSTS TO THE GOVERNMENT SAID:
"THE PROBABILITY OF THAT GENERAL RESULT IN THE WELDON SPRINGS
TRANSACTIONS IS, AS WE HAVE INDICATED, QUITE COGENTLY SUGGESTED (AND
INDEED DEMONSTRATED) BY THE RECORD." 

FN9  THE DIFFICULTY OF AN ATTEMPT TO SEGREGATE MCDOWELL'S COMMISSIONS
FROM THE LAND COSTS IS INDICATED BY THE MANNER IN WHICH THE CIRCUIT
COURT OF APPEALS FOUND HE COMPUTED HIS COMMISSIONS.  IT SAID THAT THE
OPTION AGREEMENTS INCLUDED "COMMISSIONS UPON HIS OWN COMMISSIONS,
COMMISSIONS UPON THE COMMISSIONS OF THE KANSAS CITY TITLE INSURANCE
COMPANY FOR CLOSING THE TRANSACTIONS, AND COMMISSIONS UPON THE AMOUNTS
INCLUDED IN THE CONTRACTS FOR REVENUE STAMPS AND RECORDING FEES ....
WHAT PARTICULAR ELEMENTS MCDOWELL HAD FUSED INTO THE REAL ESTATE VALUES
RECOMMENDED BY HIM IN ANY SPECIFIC TRANSACTION WERE APPARENTLY NOT
KNOWN TO THE QUARTERMASTER DEPARTMENT AT THE TIME THE CONTRACTS WERE
APPROVED."  THE MUSCHANYS' OPTION AGREEMENT, IN CASE NO. 31, WHICH THE
GOVERNMENT CONTRACTING OFFICER MARKED "ACCEPTED," DID NOT SHOW THE
AMOUNT OF MCDOWELL'S COMMISSION; IT SHOWED ONLY THAT THE PURCHASE PRICE
WAS $4,500.00.  THERE IS NEITHER FINDING NOR EVIDENCE FROM WHICH IT CAN
BE DETERMINED WHAT PART OF THIS PURCHASE PRICE, IF ANY, REPRESENTS
MCDOWELL'S COMMISSION.  IN FACT, PETITIONERS STRANGELY ENOUGH CONTEND
THAT THERE IS NO EVIDENCCE TO SHOW THAT MCDOWELL IS TO GET ANY PART OF
THE $4,500.00 AS A COMMISSION.  THE SAME SITUATION EXISTS IN NO. 32. 

FN10  WERE THIS CONTRACT NOT INVALID AS VIOLATING THE CONGRESSIONAL
PROHIBITION AGAINST THE COST-PLUS-A-PERCENTAGE-OF-COST SYSTEM, THERE
WOULD STILL REMAIN THE QUESTION AS TO WHETHER THE GOVERNMENT WAS
COMPELLED TO PAY MORE THAN "JUST COMPENSATION" IN THESE CONDEMNATION
PROCEEDINGS.  WE HAVE NEVER DECIDED THAT THERE MAY NOT BE CIRCUMSTANCES
SHORT OF THOSE NECESSARY TO HOLD PRIVATE CONTRACTS ILLEGAL, UNDER WHICH
THE GOVERNMENT MAY, IN CONDEMNATION PROCEEDINGS, OBTAIN JUDICIAL
ASCERTAINMENT OF JUST COMPENSATION, DESPITE A SINGLE CONTRACTING
OFFICER'S AGREEMENT TO PAY MORE, AND DESPITE HIS ATTEMPTED WAIVER OF
THE CONSTITUTIONAL PROVISION THAT THE GOVERNMENT NEED ONLY PAY "JUST
COMPENSATION" FOR LAND IT TAKES FOR PUBLIC USE.  DANFORTH V. UNITED
STATES, 308 U.S. 271, ACTUALLY DECIDED QUITE DIFFERENT QUESTIONS UNDER
A DIFFERENT STATUTE, DIFFERENT PLEADINGS, AND QUITE DIFFERENT
CIRCUMSTANCES.  IN CONDEMNATION PROCEEDINGS, DANFORTH FILED A
COUNTERCLAIM SEEKING JUDGMENT AGAINST THE GOVERNMENT FOR A PRICE
STIPULATED IN AN AGREEMENT.  THE GOVERNMENT ATTACKED THE COUNTERCLAIM
AND IT WAS STRICKEN IN DISTRICT COURT ON TWO GROUNDS ONLY:  (1) THE
GOVERNMENT HAD NOT CONSENTED TO THE SUIT; (2) THE DISTRICT COURT WAS
WITHOUT JURISDICTION BECAUSE MORE THAN $10,000 WAS INVOLVED. 

FN11  EVEN IF THE CIRCUIT COURT OF APPEALS AND THE DISTRICT COURT HAD
BOTH PASSED UPON THESE QUESTIONS, - AND I DO NOT THINK THEY DID - IT
DOES NOT NECESSARILY FOLLOW THAT WE WOULD NOT REVIEW THEM.  SEE CITY
BANK FARMERS TRUST CO. V. MCGOWAN, 323 U.S. 594, 600; CF. CITY BANK
FARMERS TRUST CO. V. MCGOWAN, 142 F.2D 599, 601, AND 43 F.SUPP.  790,
795-6. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE  RUTLEDGE JOIN IN THIS
DISSENT. 
..END :
















BARR V. UNITED STATES, 324 U.S. 83 


NO. 287.  ARGUED DECEMBER 15, 1944.  - DECIDED FEBRUARY 5, 1945.  - 143
F2D 132, REVERSED. 


1.  THE PROPER RATE AT WHICH THE CURRENCY OF THE INVOICE OF THE
IMPORTED GOODS HERE INVOLVED SHOULD HAVE BEEN CONVERTED INTO UNITED
STATES DOLLARS UNDER SEC. 522(C) OF THE TARIFF ACT OF 1930 WAS THE
"FREE" RATE AND NOT THE "OFFICIAL" RATE.  PP. 84, 94. 

2.  SECTION 522(C) IS NOT TO BE CONSTRUED AS AUTHORIZING
CERTIFICATION BY THE FEDERAL RESERVE BANK OF NEW YORK OR PROCLAMATION
BY THE SECRETARY OF THE TREASURY OF ONLY ONE BUYING RATE FOR A
SPECIFIED FOREIGN CURRENCY.  P. 89. 

3.  WHERE UNDER SEC. 522(C) DUAL BUYING RATES HAVE BEEN CERTIFIED,
THAT RATE SHOULD BE USED WHICH IS IN FACT APPLICABLE TO THE PARTICULAR
TRANSACTION, AND THE USE OF A RATE BY WHICH THE COST OF THE GOODS WILL
BE DISTORTED AND AN INFLATED VALUE FOR CUSTOMS PURPOSES PLACED UPON
THEM SHOULD BE AVOIDED.  P. 90. 

4.  THE RESULT HERE REACHED IS NOT INCONSISTENT WITH PROVISIONS OF
SEC. 402 OF THE ACT WHICH REQUIRE THAT THE VALUE OF IMPORTED
MERCHANDISE SHALL BE THE "FOREIGN VALUE OR THE EXPORT VALUE, WHICHEVER
IS HIGHER."  P. 92. 

5.  THE GENERAL AUTHORITY OF THE SECRETARY OF THE TREASURY OVER THE
COLLECTION OF DUTIES ON IMPORTS AND OVER COLLECTORS OF CUSTOMS, AND HIS
AUTHORITY UNDER SEC. 624 OF THE TARIFF ACT OF 1930 TO MAKE RULES AND
REGULATIONS FOR CARRYING OUT THE PROVISIONS OF THE ACT, CAN NOT DETRACT
FROM THE EXPRESS AUTHORITY OF THE FEDERAL RESERVE BANK OF NEW YORK
UNDER SEC. 522(C) TO DETERMINE AND CERTIFY THE BUYING RATE.  P. 92. 

6. THE FUNCTION OF THE SECRETARY OF THE TREASURY UNDER SEC. 522(C) IN
RESPECT OF THE PUBLISHING OF THE RATES CERTIFIED BY THE BANK IS PURELY
MINISTERIAL.  P. 94. 

7.  THE ACTION OF THE SECRETARY OF THE TREASURY IN PUBLISHING ONLY
ONE OF THE RATES CERTIFIED BY THE BANK, AND THE DECISION OF THE
COLLECTOR PURSUANT THERETO, WERE SUBJECT TO JUDICIAL REVIEW.  P. 94. 

8.  AS TO THE CONTENTION THAT CONFUSION AND COMPLEXITY IN
ADMINISTRATION OF THE TARIFF ACT WILL RESULT IF MORE THAN ONE BUYING
RATE MAY BE MADE APPLICABLE TO IMPORTS FROM ONE COUNTRY, THE SHOWING
WOULD HAVE TO BE FAR MORE CLEAR THAN IT IS HERE AND THE MEANING OF THE
ACT MUCH MORE DUBIOUS IN ORDER THAT THOSE ADMINISTRATIVE CONSIDERATIONS
SHOULD BE GIVEN WEIGHT IN THE INTERPRETATIVE PROCESS.  P. 94. 

BARR V. UNITED STATES. 

CERTIORARI TO THE COURT OF CUSTOMS AND PATENT APPEALS. 

CERTIORARI, 323 U.S. 689, TO REVIEW THE REVERSAL OF A JUDGMENT OF THE
CUSTOMS COURT WHICH SUSTAINED A PROTEST OF A DECISION OF THE COLLECTOR
OF CUSTOMS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS THE PROPER RATE AT WHICH THE CURRENCY OF
THE INVOICE OF IMPORTED GOODS SHOULD BE CONVERTED INTO UNITED STATES
DOLLARS UNDER SEC. 522(C) OF THE TARIFF ACT OF 1930.  46 STAT. 739, 31
U.S.C. SEC. 372(C). 

ON MAY 13, 1940, PETITIONER IMPORTED INTO THE UNITED STATES AT THE
PORT OF NEW YORK CERTAIN WOOLEN FABRICS WHICH HAD BEEN EXPORTED FROM
ENGLAND ON MAY 3, 1940.  PAYMENT FOR THE MERCHANDISE WAS MADE WITH
POUNDS STERLING PURCHASED THROUGH THE GUARANTY TRUST CO. OF NEW YORK IN
THE NEW YORK MARKET FOR CABLE TRANSFER.  THE COLLECTOR OF CUSTOMS
CONVERTED THE POUNDS STERLING OF THE INVOICE INTO DOLLARS AT THE
"OFFICIAL" RATE OF EXCHANGE OF $4.035.  PETITIONER CLAIMED THAT THE
CURRENCY OF HIS INVOICE SHOULD HAVE BEEN CONVERTED AT THE "FREE" RATE
OF EXCHANGE OF $3.475138.  HE PAID THE HIGHER RATE AND FILED HIS
PROTEST AGAINST THE COLLECTOR'S ACTION UNDER SEC. 514 OF THE TARIFF ACT
OF 1930.  THE CUSTOMS COURT SUSTAINED THE PROTEST.  79 TREAS. DEC., NO.
7, 14.  THE COURT OF CUSTOMS AND PATENT APPEALS REVERSED.  143 F.2D
132.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTIONS PRESENTED. 

THE "FREE" RATE AND THE "OFFICIAL" RATE HAVE THE FOLLOWING ORIGIN. 

SEC. 522(A) OF THE TARIFF ACT PROVIDES THAT THE VALUE OF FOREIGN COIN
AS EXPRESSED IN THE MONEY OF ACCOUNT OF THE UNITED STATES SHALL BE THAT
OF THE PURE METAL OF SUCH COIN OF STANDARD VALUE, AND THAT IT SHALL BE
ESTIMATED QUARTERLY BY THE DIRECTOR OF THE MINT AND PROCLAIMED BY THE
SECRETARY OF THE TREASURY.  THE VALUE OF THE POUND STERLING AT ALL
TIMES RELEVANT HERE WAS PROCLAIMED TO BE $8.2397.  SEC. 522(B) PROVIDES
THAT, FOR THE PURPOSE OF ASSESSMENT AND COLLECTION OF DUTIES UPON
MERCHANDISE IMPORTED INTO THE UNITED STATES, FOREIGN CURRENCY SHALL BE
CONVERTED, WHEREVER NECESSARY, INTO CURRENCY OF THE UNITED STATES AT
THE VALUES PROCLAIMED BY THE SECRETARY UNDER SEC. 522(A) FOR THE
QUARTER IN WHICH THE MERCHANDISE WAS EXPORTED.  SEC. 522(B) PROVIDES,
HOWEVER, FOR AN EXCEPTION.  THAT EXCEPTION IS CONTAINED IN SEC. 522(C)
WHICH READS AS FOLLOWS: 

"IF NO SUCH VALUE HAS BEEN PROCLAIMED, OR IF THE VALUE SO PROCLAIMED
VARIES BY 5 PER CENTUM OR MORE FROM A VALUE MEASURED BY THE BUYING RATE
IN THE NEW YORK MARKET AT NOON ON THE DAY OF EXPORTATION, CONVERSION
SHALL BE MADE AT A VALUE MEASURED BY SUCH BUYING RATE.  IF THE DATE OF
EXPORTATION FALLS UPON A SUNDAY OR HOLIDAY, THEN THE BUYING RATE AT
NOON ON THE LAST PRECEDING BUSINESS DAY SHALL BE USED.  FOR THE
PURPOSES OF THIS SUBDIVISION SUCH BUYING RATE SHALL BE THE BUYING RATE
FOR CABLE TRANSFERS PAYABLE IN THE FOREIGN CURRENCY SO TO BE CONVERTED;
AND SHALL BE DETERMINED BY THE FEDERAL RESERVE BANK OF NEW YORK AND
CERTIFIED DAILY TO THE SECRETARY OF THE TREASURY, WHO SHALL MAKE IT
PUBLIC AT SUCH TIMES AND TO SUCH EXTENT AS HE DEEMS NECESSARY.  IN
ASCERTAINING SUCH BUYING RATE SUCH FEDERAL RESERVE BANK MAY IN ITS
DISCRETION (1) TAKE INTO CONSIDERATION THE LAST ASCERTAINABLE
TRANSACTIONS AND QUOTATIONS, WHETHER DIRECT OR THROUGH EXCHANGE OF
OTHER CURRENCIES, AND (2) IF THERE IS NO MARKET BUYING RATE FOR SUCH
CABLE TRANSFERS, CALCULATE SUCH RATE FROM ACTUAL TRANSACTIONS AND
QUOTATIONS IN DEMAND OR TIME BILLS OF EXCHANGE." 

AT ALL TIMES PRIOR TO MARCH 25, 1940, THE FEDERAL RESERVE BANK OF NEW
YORK PURSUANT TO ITS AUTHORITY UNDER SEC. 522(C) CERTIFIED DAILY TO THE
SECRETARY OF THE TREASURY ONE BUYING RATE FOR THE POUND STERLING.  WHEN
THE PRESENT WAR BETWEEN GREAT BRITAIN AND GERMANY WAS DECLARED, THE
BRITISH GOVERNMENT INAUGURATED A DETAILED SYSTEM FOR CONTROLLING
FOREIGN EXCHANGE.  IT REQUIRED AMONG OTHER THINGS THAT ALL PERSONS
RESIDENT IN THE UNITED KINGDOM SELL TO THE BRITISH TREASURY AT PRICES
FIXED BY IT ALL FOREIGN CURRENCY WHICH THEY WERE ENTITLED TO SELL, AND
PROHIBITED, WITH CERTAIN EXCEPTIONS, EXPORTATION OF FOREIGN CURRENCY
FROM THE UNITED KINGDOM AND THE PURCHASE AND SALE OF FOREIGN CURRENCY
IN THE UNITED KINGDOM FROM OR TO ANY PERSON OTHER THAN AN AUTHORIZED
DEALER AND AT PRICES FIXED BY THE BRITISH TREASURY.  ON MARCH 7, 1940,
AN ORDER IN COUNCIL, EFFECTIVE MARCH 25, 1940, WAS ISSUED BY THE
BRITISH GOVERNMENT WHICH PROVIDED THAT CERTAIN CLASSES OF MERCHANDISE
FN1  (WHISKEY, FURS, TIN, RUBBER AND JUTE) MIGHT NOT BE EXPORTED FROM
THE UNITED KINGDOM TO THE UNITED STATES AND CERTAIN OTHER COUNTRIES
EXCEPT WHEN PAYMENT HAD BEEN OR WOULD BE MADE TO PERSONS RESIDENT IN
THE UNITED KINGDOM IN SPECIFIED CURRENCIES.  THESE CURRENCIES INCLUDED
UNITED STATES DOLLARS OR ENGLISH POUNDS PURCHASED IN THE UNITED KINGDOM
AFTER SEPTEMBER 3, 1939, FROM AN AUTHORIZED DEALER IN FOREIGN
CURRENCY.  AUTHORIZED DEALERS SOLD ENGLISH POUNDS ONLY AT THE RATE OF
$4.035, PRESCRIBED BY THE BRITISH TREASURY, FROM JANUARY 8, 1940, TO
SEPTEMBER 30, 1942, WHEN THE PRESENT CASE WAS TRIED. 

ON MARCH 19, 1940, THE FEDERAL RESERVE BANK OF NEW YORK NOTIFIED THE
SECRETARY THAT BECAUSE OF THE ORDER OF THE BRITISH GOVERNMENT OF MARCH
7, 1940, IT WOULD CERTIFY, BEGINNING MARCH 25, 1940, TWO RATES FOR THE
POUND STERLING - ONE TO BE DESIGNATED AS THE "FREE" RATE, THE OTHER AS
THE "OFFICIAL" RATE.  THE LATTER WAS THE RATE FIXED BY THE BRITISH
TREASURY.  ON APRIL 15, 1940, THE SECRETARY OF THE TREASURY NOTIFIED
THE COLLECTORS OF CUSTOMS THAT UNTIL FURTHER NOTICE HE WOULD PUBLISH
ONLY THE "OFFICIAL" RATE; AND HE DIRECTED THEM TO USE THAT RATE FOR
ASSESSING AND COLLECTING DUTIES ON IMPORTED MERCHANDISE WHENEVER IT
VARIED BY MORE THAN 5 PER CENT FROM THE VALUE OF THE POUND PROCLAIMED
BY THE SECRETARY UNDER SEC. 522(A) OF THE ACT.  FN2  T.D. 50134, 75
TREAS. DEC. 370, 371, 5 FED. REG. 1447. 

ON THE DATE PETITIONER EXPORTED HIS MERCHANDISE FROM ENGLAND, THE
FEDERAL RESERVE BANK OF NEW YORK CERTIFIED TO THE SECRETARY OF THE
TREASURY THAT AT NOON ON THAT DAY THE "FREE" RATE FOR THE ENGLISH POUND
WAS $3.475138 AND THE "OFFICIAL" RATE WAS $4.035.  THE SECRETARY, IN
ACCORDANCE WITH HIS NOTIFICATION OF APRIL 15, 1940, TO THE COLLECTORS
OF CUSTOMS PUBLISHED ONLY THE "OFFICIAL" RATE.  T.D. 50146, 75 TREAS.
DEC. 388.  SINCE THE "OFFICIAL" RATE VARIED BY MORE THAN 5 PER CENT
FROM THE PROCLAIMED VALUE OF THE POUND FOR THAT QUARTER, THE COLLECTOR
USED THE "OFFICIAL" RATE IN CONVERTING POUNDS INTO DOLLARS FOR THE
PURPOSE OF ASSESSING AND COLLECTING DUTIES UPON THE VALUE OF THE WOOLEN
FABRICS.  THE POUNDS STERLING WHICH PETITIONER USED IN THE PURCHASE OF
THE WOOLENS WERE NOT OBTAINED FROM AN AUTHORIZED DEALER AS DEFINED IN
THE BRITISH ORDER OF MARCH 7, 1940, BUT, AS WE HAVE NOTED, THROUGH THE
GUARANTY TRUST CO. OF NEW YORK IN THE NEW YORK MARKET FOR CABLE
TRANSFER.  PETITIONER CLAIMS THAT THE INVOICE CURRENCY SHOULD HAVE BEEN
CONVERTED AT THE "FREE" RATE OF $3.475138 AS DETERMINED AND CERTIFIED
BY THE FEDERAL RESERVE BANK OF NEW YORK FOR THE DATE OF THIS
EXPORTATION. 

IT WAS NOTED IN UNITED STATES V. WHITRIDGE, 197 U.S. 135, 142, THAT
THE ASSESSMENT OF AN AD VALOREM TAX ON IMPORTS INVOLVED AN
ASCERTAINMENT OF THE TRUE VALUE OF THE ARTICLE TAXED AS OF THE DATE OF
THE TAX AND THAT THE INVOICE PRICE WAS AN APPROXIMATE MEASUREMENT OF
THAT VALUE.  AS POINTED OUT IN THAT CASE, THE HISTORY OF THE STATUTES
SHOWS A CLOSER APPROXIMATION TO THAT VALUE AS THE LEGISLATION HAS
EVOLVED.  AND THE ENACTMENTS MADE SUBSEQUENT TO THE DECISION IN THE
WHITRIDGE CASE ARE CONSISTENT WITH THAT TREND.  IN THE BEGINNING
CONGRESS PRESCRIBED SPECIFIC DOLLAR VALUES OF SPECIFIED COINS.  ACT OF
JULY 31, 1789, SEC. 18, 1 STAT. 29, 41.  NOT LONG AFTER, THE PRESIDENT
WAS GIVEN AUTHORITY TO PRESCRIBE REGULATIONS FOR COMPUTING DUTIES ON
IMPORTS WHERE THE ORIGINAL COST WAS EXHIBITED IN A DEPRECIATED CURRENCY
OF A FOREIGN GOVERNMENT.  ACT OF MARCH 2, 1799, SEC. 61, 1 STAT. 627,
673.  IN 1873 CONGRESS PROVIDED FOR AN ANNUAL ESTIMATE BY THE DIRECTOR
OF THE MINT OF THE FULL METAL VALUE OF STANDARD COINS OF THE VARIOUS
NATIONS AND A PROCLAMATION OF THE VALUE BY THE SECRETARY OF THE
TREASURY.  ACT OF MARCH 3, 1873, 17 STAT. 602.  THAT ESTIMATE WAS
REQUIRED TO BE MADE QUARTERLY RATHER THAN ANNUALLY BY THE ACT OF
OCTOBER 1, 1890, SEC. 52, 26 STAT. 567, 624.  THEN CAME THE ACT OF
AUGUST 27, 1894, SEC. 25, 28 STAT. 509, 552, WHICH RETAINED THE
PROVISION FOR THE ESTIMATE AND PROCLAMATION OF METALLIC VALUES AND GAVE
THE SECRETARY OF THE TREASURY POWER TO ORDER A RELIQUIDATION AT A
DIFFERENT VALUE ON A SHOWING THAT THE VALUE OF THE INVOICE CURRENCY IN
UNITED STATES CURRENCY WAS 10 PER CENT MORE OR LESS THAN THE PROCLAIMED
VALUE.  UNITED STATES V. WHITRIDGE, SUPRA.  THE PROCEDURE UNDER THE
LATTER PROVISION DEPENDED ON A CONSULAR CERTIFICATE TO ESTABLISH THE
PERCENTAGE OF DEPRECIATION OF THE CURRENCY.  T.D. NO. 23725, 5 TREAS.
DEC. 396.  THERE WAS THUS NO SINGLE SOURCE (AND NONE AT ALL IN THE
UNITED STATES) TO WHICH CUSTOMS OFFICIALS COULD LOOK TO DETERMINE THE
EXTENT TO WHICH FOREIGN CURRENCY HAD DEPRECIATED.  MOREOVER, VIOLENT
FLUCTUATIONS IN FOREIGN EXCHANGE RATES HAD OCCURRED AFTER THE FIRST
WORLD WAR.  IT WAS FOR THOSE REASONS THAT SEC. 403(C) WAS ADDED TO THE
EMERGENCY TARIFF ACT OF 1921, 42 STAT. 9, 17.  SEE S. REP. NO. 16, 67TH
CONG., 1ST SESS., P. 16; H. REP. NO. 79, 67TH CONG., 1ST SESS., P. 12;
FRY & FRIEDSAM V. UNITED STATES, 12 CUST.  APP.  486, 489.  AND SEC.
403(C) OF THE 1921 ACT NOW APPEARS AS SEC. 522(C) OF THE 1930 ACT ON
WHOSE MEANING THE PRESENT DECISION TURNS. 

THIS HISTORY MAKES CLEAR THE SEARCH WHICH HAS BEEN MADE FOR A MEASURE
OF THE TRUE DOLLAR VALUES OF IMPORTED MERCHANDISE FOR CUSTOMS PURPOSES
WHICH WAS ACCURATE (SEE CRAMER V. ARTHUR, 102 U.S. 612, 617) AND AT THE
SAME TIME ADMINISTRATIVELY FEASIBLE AND EFFICIENT.  THE FORMULA FINALLY
SELECTED IS DEPENDENT ON THE ACTUAL VALUE OF THE FOREIGN CURRENCY IN
OUR OWN MONEY.  THE RATE FOR THE FOREIGN EXCHANGE WITH WHICH THE
IMPORTED GOODS ARE PURCHASED IS RECOGNIZED AS THE MEASURE OF VALUE OF
THE FOREIGN CURRENCY; THE USE OF THAT RATE REFLECTS VALUES IN UNITED
STATES CURRENCY WHICH ARE DEEMED SUFFICIENTLY ACCURATE TO SERVE AS THE
MEASURE OF THE VALUATION OF THE GOODS FOR PURPOSES OF THE AD VALOREM
TAX.  AS NOTED IN UNITED STATES V. WHITRIDGE, SUPRA, P. 144, THE ACTUAL
"UNIT OF COST" CONFORMS WITH THE TRUTH AND THE MEANING OF THE INVOICE. 

WE WOULD DEPART FROM THAT SCHEME IF WE READ SEC. 522(C) AS SAYING
THAT ON A GIVEN DATE ONLY ONE BUYING RATE FOR A SPECIFIED FOREIGN
CURRENCY COULD BE CERTIFIED BY THE FEDERAL RESERVE BANK OF NEW YORK OR
PROCLAIMED BY THE SECRETARY OF THE TREASURY.  DUAL OR MULTIPLE EXCHANGE
RATES HAVE RESULTED IN RECENT YEARS FROM MEASURES FOR THE CONTROL AND
RESTRICTION OF FOREIGN EXCHANGE AND EXPORT TRANSACTIONS.  FN3  IN THE
PRESENT CASE THE BRITISH GOVERNMENT FIXED THE "OFFICIAL" RATE FOR THE
PURCHASE OF SPECIFIED COMMODITIES FOR EXPORT.  ONE WHO PURCHASED
WOOLENS FOR EXPORT NEED NOT ACQUIRE POUNDS AT THAT RATE.  A LOWER RATE
WAS AVAILABLE AND WAS INDEED TAKEN ADVANTAGE OF BY PETITIONER WHEN HE
PURCHASED POUNDS TO PAY FOR THE WOOLENS.  IF THE HIGHER "OFFICIAL" RATE
IS USED IN THE VALUATION OF THE WOOLENS, THE COST OF THE GOODS WILL BE
DISTORTED AND AN INFLATED VALUE FOR CUSTOMS PURPOSES WILL BE PLACED
UPON THEM.  SUCH A RESULT WOULD BE QUITE OUT OF HARMONY WITH THE
HISTORY OF THESE STATUTES AND SHOULD BE AVOIDED UNLESS THE RESULT IS
PLAINLY REQUIRED BY THE LANGUAGE OF SEC. 522(C).  WE DO NOT THINK IT
IS. 

WE MAY ASSUME THAT THE DUAL OR MULTIPLE EXCHANGE RATES WHICH HAVE
EMERGED WERE NOT IN CONTEMPLATION WHEN THE 1930 ACT WAS PASSED.  AS WE
HAVE NOTED, THEY ARE PARTS OF RATHER RECENT MEASURES FOR THE CONTROL
AND RESTRICTION OF FOREIGN EXCHANGE AND EXPORT TRANSACTIONS.  BUT IF
CONGRESS HAS MADE A CHOICE OF LANGUAGE WHICH FAIRLY BRINGS A GIVEN
SITUATION WITHIN A STATUTE, IT IS UNIMPORTANT THAT THE PARTICULAR
APPLICATION MAY NOT HAVE BEEN CONTEMPLATED BY THE LEGISLATORS.  PUERTO
RICO V. SHELL CO., 302 U.S. 253, 257; BROWDER V. UNITED STATES, 312
U.S. 335, 339, AND CASES CITED.  SEC. 522(C) CONTAINS NO LANGUAGE
INDICATING THAT THE SECRETARY OF THE TREASURY HAS ANY FUNCTION TO
PERFORM EXCEPT THE PUBLICATION OF ANY BUYING RATE WHICH IS CERTIFIED. 
THE DETERMINATION OF THE RATE IS LEFT EXCLUSIVELY TO THE FEDERAL
RESERVE BANK OF NEW YORK.  IT ALONE IS GIVEN DISCRETION IN COMPUTING
IT.  THE DUTY OF THE SECRETARY TO PUBLISH THE CERTIFIED RATE IS AS
CLEAR AS THE DUTY OF THE FEDERAL RESERVE BANK OF NEW YORK TO DETERMINE
AND CERTIFY IT.  IT IS TRUE THAT SEC. 522(C) SPEAKS ONLY OF THE "BUYING
RATE."  AND THAT USE OF THE SINGULAR RATHER THAN THE PLURAL IS STRESSED
BY RESPONDENT.  WE MAY NOTE, HOWEVER, IN PASSING THAT SEC. 1 OF THE
REVISED STATUTES, 1 U.S.C. SEC. 1, PROVIDES THAT "WORDS IMPORTING THE
SINGULAR NUMBER MAY EXTEND AND BE APPLIED TO SEVERAL PERSONS OR
THINGS."  BEYOND THAT IS THE FACT THAT WE ARE CONSTRUING A PROVISION OF
A TARIFF ACT DESIGNED, AS WE HAVE SAID, TO VALUE IMPORTS FOR CUSTOMS
PURPOSES BY MEANS OF THE BUYING RATE OF THE INVOICE CURRENCY.  THE USE
OF THE SINGULAR IS NOT INAPPROPRIATE SINCE THERE IS A BUYING RATE FOR
THE FOREIGN EXCHANGE USED TO PURCHASE EACH SEPARATE IMPORT.  WE ASSUME
THAT THE "OFFICIAL" RATE WAS THE ALL-INCLUSIVE RATE AND COULD HAVE BEEN
USED IN PAYMENT OF EXPORTED GOODS OF ALL KINDS.  BUT SEC. 522(C) MEANS
TO US THAT THAT BUYING RATE IS TO BE USED WHICH IS IN FACT APPLICABLE
TO THE PARTICULAR TRANSACTION.  TO LOOK TO OTHER TRANSACTIONS FOR THE
BUYING RATE IS TO MAKE A VALUATION OF A WHOLLY HYPOTHETICAL IMPORT, NOT
A VALUATION OF THE ACTUAL ONE BEFORE THE COLLECTOR OF CUSTOMS. 
CONGRESS COULD, OF COURSE, CHOOSE ANY STANDARD OF VALUATION, FOR THE
PURPOSES OF THE ASSESSMENT AND COLLECTION OF DUTIES.  BUT CONGRESS IN
THIS SITUATION ENDEAVORED TO PROVIDE A FLEXIBLE AND REALISTIC, NOT AN
ARBITRARY, STANDARD.  WE CAN INDEED SEE NO DIFFERENCE IN PRINCIPLE
BETWEEN THE USE OF ONE OF SEVERAL RATES FOR THE CURRENCY OF A SINGLE
COUNTRY AND THE USE OF ONE OF SEVERAL RATES EACH OF WHICH IS FOR THE
CURRENCY OF A DIFFERENT COUNTRY.  IN EACH DIFFERENT RATES ARE USED TO
ASCERTAIN THE VALUE OF SPECIFIC IMPORTS.  THE LANGUAGE OF SEC. 522(C)
READ AGAINST THE BACKGROUND OF THESE STATUTES INDICATES TO US THAT
CONGRESS UNDERTOOK TO PROVIDE IN EACH CASE THE RATE WHICH GIVES THE
CLOSEST APPROXIMATION TO THE VALUE IN DOLLARS OF THE IMPORTED
MERCHANDISE.  THAT PURPOSE WOULD BE THWARTED IF IN THE CIRCUMSTANCES OF
THIS CASE ONLY ONE BUYING RATE COULD BE USED IN MAKING THE VALUATION OF
THE GOODS.  THE APPLICATION OF THE "OFFICIAL" RATE TO THIS PARTICULAR
TRANSACTION WOULD ASSUME THAT PETITIONER IMPORTED WHISKEY, FURS, TIN,
RUBBER, OR JUTE RATHER THAN WOOLENS.  THE VALUATION OF THE WOOLENS
WOULD BE INFLATED AND A HIGHER DUTY WOULD BE PAID THAN A FAIR READING
OF SEC. 522(C) NECESSITATES. 

IT IS SAID THAT THIS RESULT RUNS COUNTER TO THE PROVISIONS OF SEC.
402 OF THE ACT WHICH REQUIRE THAT THE VALUE OF IMPORTED MERCHANDISE
SHALL BE THE "FOREIGN VALUE OR THE EXPORT VALUE, WHICHEVER IS HIGHER." 
BUT IT IS NOT APPARENT HOW THAT POLICY NEED IN ANY WAY BE DEFEATED OR
IMPAIRED BY THE USE OF THE "FREE" RATE OF EXCHANGE WHERE IT IS IN FACT
APPLICABLE. 

RELIANCE FOR THE OTHER CONCLUSION IS ALSO PLACED ON THE GENERAL
AUTHORITY GIVEN THE SECRETARY OVER THE COLLECTION OF DUTIES ON IMPORTS
FN4  AND OVER COLLECTORS OF CUSTOMS.  FN5  IT IS ALSO POINTED OUT THAT
SEC. 624 OF THE TARIFF ACT OF 1930 PROVIDES THAT "IN ADDITION TO THE
SPECIFIC POWERS CONFERRED BY THIS ACT, THE SECRETARY OF THE TREASURY IS
AUTHORIZED TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO
CARRY OUT THE PROVISIONS OF THIS ACT."  FN6  BUT THESE PROVISIONS
MERELY IMPLEMENT AUTHORITY WHICH IS GRANTED THE SECRETARY AND MAKE
CLEAR THE EXISTENCE OF AUTHORITY WHICH OTHERWISE MIGHT BE ONLY
IMPLIED.  THEY MAY NOT BE USED TO DETRACT FROM THE EXPRESS AUTHORITY
GIVEN THE FEDERAL RESERVE BANK OF NEW YORK UNDER SEC. 522(C).  BUT THIS
RESULT IS CRITICIZED ON THE GROUND THAT IT INTERFERES WITH THE CONTROL
OF FOREIGN EXCHANGE, WHICH FISCAL FUNCTION HAS BEEN ENTRUSTED TO THE
SECRETARY, NOT TO THE FEDERAL RESERVE BANK OF NEW YORK.  IT HARDLY NEED
BE POINTED OUT IN REPLY, HOWEVER, THAT OUR DECISION, LIKE SEC. 522(C),
IS CONCERNED ONLY WITH THE ASSESSMENT AND COLLECTION OF DUTIES UPON
IMPORTS THROUGH THE USE OF A FORMULA WHICH CONGRESS DESIGNED.  IF THE
USE OF THAT FORMULA UNDER THE CHANGED CONDITIONS OF THESE WAR YEARS IS
DISADVANTAGEOUS OR UNDESIRABLE, CONGRESS, OF COURSE, CAN CHANGE IT.
BUT WE CANNOT ASSUME THAT CONGRESS DID NOT MEAN WHAT IT SAID WHEN IT
SELECTED THE FEDERAL RESERVE BANK OF NEW YORK RATHER THAN THE SECRETARY
TO PERFORM A RESTRICTED FUNCTION ON THIS SINGLE PHASE OF THE
COMPLICATED FOREIGN EXCHANGE PROBLEM. 

NOR IS THERE SUBSTANCE IN THE ARGUMENT THAT THE SECRETARY'S ACTION IN
PUBLISHING ONLY ONE OF THE RATES CERTIFIED BY THE BANK IS NON
REVIEWABLE.  SEC. 522(C) PLAINLY GIVES DISCRETION TO THE BANK TO
DETERMINE THE BUYING RATE.  AND FOR THE REASONS STATED WE CANNOT SAY
THAT ONLY ONE BUYING RATE MUST BE DETERMINED AND CERTIFIED.  FN7  THE
EXERCISE OF THE BANK'S DISCRETIONARY POWER UNDER SEC. 522(C) IS IN THE
CATEGORY OF ADMINISTRATIVE OR EXECUTIVE ACTION WHICH THIS COURT HELD
NON-REVIEWABLE IN CRAMER V. ARTHUR, SUPRA, AND IN HADDEN V. MERRITT,
115 U.S. 25, 27-28.  AND SEE UNITED STATES V. BUSH & CO., 310 U.S. 371,
380.  BUT THE FUNCTION OF THE SECRETARY IN THIS REGARD IS PURELY
MINISTERIAL AND IS TO BE CONTRASTED TO OTHER SITUATIONS IN WHICH THE
SECRETARY IS EXERCISING DISCRETIONARY AUTHORITY.  CF. BOSKE V.
COMINGORE, 177 U.S. 459.  THE POWER TO PUBLISH THE CERTIFIED RATE MAY
NOT BE EXERCISED IN SUCH A WAY AS TO DEFEAT THE METHOD OF ASSESSMENT
WHICH CONGRESS HAS PROVIDED.  CF. CAMPBELL V. UNITED STATES, 107 U.S.
407.  CONGRESS HAS GRANTED JUDICIAL REVIEW OF THE DECISIONS OF THE
COLLECTOR INCLUDING THE LEGALITY OF THE ORDERS AND FINDINGS ENTERING
INTO THE PROTESTED DECISION.  SECS. 514-517.  IF THE DECISION OF THE
COLLECTOR CONTRAVENES THE STATUTORY SCHEME AND DISREGARDS RIGHTS WHICH
CONGRESS HAS BESTOWED, THE FACT THAT HE ACTS PURSUANT TO THE DIRECTIONS
OF THE SECRETARY DOES NOT SAVE HIS DECISION FROM REVIEW.  CAMPBELL V.
UNITED STATES, SUPRA.  WE THINK THAT THE USE OF THE "OFFICIAL" RATE OF
EXCHANGE IN ASSESSING AND COLLECTING DUTIES UPON THESE IMPORTS
TRANSCENDED THE AUTHORITY OF THE COLLECTOR AND OF THE SECRETARY AND
THAT THE "FREE" RATE OF EXCHANGE CERTIFIED BY THE FEDERAL RESERVE BANK
OF NEW YORK SHOULD HAVE BEEN USED. 

IT IS FINALLY SAID THAT IF MORE THAN ONE BUYING RATE MAY BE MADE
APPLICABLE TO IMPORTS FROM ONE COUNTRY,  FN8  CONFUSION AND COMPLEXITY
IN ADMINISTRATION OF THE TARIFF ACT WILL RESULT.  BUT THAT SHOWING
WOULD HAVE TO BE FAR MORE CLEAR AND THE MEANING OF THE ACT MUCH MORE
DUBIOUS FOR US TO GIVE THOSE ADMINISTRATIVE CONSIDERATIONS WEIGHT IN
THE INTERPRETATIVE PROCESS.  REVERSED. 

FN1  SUBSEQUENT TO THE EXPORTATION OF THE MERCHANDISE INVOLVED IN THE
PRESENT CASE THIS ORDER WAS AMENDED, EFFECTIVE JUNE 10, 1940, TO
INCLUDE GOODS OF ANY CLASS OR DESCRIPTION. 

FN2  AS WE HAVE NOTED, THE VALUE OF THE POUND STERLING AT ALL TIMES
PERTINENT TO THIS CASE WAS PROCLAIMED TO BE $8.2397. 

FN3  SEE UNITED STATES TARIFF COMMISSION, REGULATION OF TARIFFS IN
FOREIGN COUNTRIES BY ADMINISTRATIVE ACTION (1934); TWENTY-SECOND ANNUAL
REPORT OF THE UNITED STATES TARIFF COMMISSION (1938) P. 1; SOUTHARD,
FOREIGN EXCHANGE PRACTICE AND POLICY (1940) PP. 185 ET SEQ. 

FN4  "THE SECRETARY OF THE TREASURY SHALL DIRECT THE SUPERINTENDENCE
OF THE COLLECTION OF THE DUTIES ON IMPORTS AS HE SHALL JUDGE BEST." 
REV. STAT. SEC. 249, 19 U.S.C. SEC. 3.  AND SEE REV. STAT. SEC. 248, 5
U.S.C. SEC. 242. 

FN5  "THE SECRETARY OF THE TREASURY SHALL PRESCRIBE FORMS OF ENTRIES,
OATHS, BONDS, AND OTHER PAPERS, AND RULES AND REGULATIONS NOT
INCONSISTENT WITH LAW, TO BE USED IN CARRYING OUT THE PROVISIONS OF LAW
RELATING TO RAISING REVENUE FROM IMPORTS, OR TO DUTIES ON IMPORTS, OR
TO WAREHOUSING, AND SHALL GIVE SUCH DIRECTIONS TO COLLECTORS AND
PRESCRIBE SUCH RULES AND FORMS TO BE OBSERVED BY THEM AS MAY BE
NECESSARY FOR THE PROPER EXECUTION OF THE LAW."  REV. STAT. SEC. 251,
19 U.S.C., SUPP. III, SEC. 66.  AND SEE REV. STAT. SEC. 161, 5 U.S.C.
SEC. 22. 

FN6  SEC. 502(C) OF THE ACT PROVIDES THAT "IT SHALL BE THE DUTY OF
ALL OFFICERS OF THE CUSTOMS TO EXECUTE AND CARRY INTO EFFECT ALL
INSTRUCTIONS OF THE SECRETARY OF THE TREASURY RELATIVE TO THE EXECUTION
OF THE REVENUE LAWS; AND IN CASE ANY DIFFICULTY ARISES AS TO THE TRUE
CONSTRUCTION OR MEANING OF ANY PART OF THE REVENUE LAWS, THE DECISION
OF THE SECRETARY SHALL BE BINDING UPON ALL OFFICERS OF THE CUSTOMS." 

FN7  THE CASE IS THEREFORE DIFFERENT FROM COLLECTOR V. RICHARDS, 23
WALL.  246.  IN THAT CASE THE DIRECTOR OF THE MINT CERTIFIED TWO VALUES
OF THE FRANC - ONE UNDER THE PROVISIONS OF THE ACT OF MARCH 3, 1873, 17
STAT. 602, THE OTHER UNDER THE ACT OF MAY 22, 1846, 9 STAT. 14.  THE
DIRECTOR OF THE MINT WAS UNCERTAIN WHETHER THE LATTER ACT HAD BEEN
REPEALED BY THE FORMER.  THE SECRETARY PROCLAIMED THE RATE ESTIMATED BY
THE DIRECTOR UNDER THE 1873 ACT.  THIS COURT SUSTAINED A COLLECTION OF
DUTIES ON THAT BASIS, HOLDING THAT THE PROVISIONS OF THE 1873 ACT
CONTROLLED.  THUS THE DECISION WAS THAT ONLY ONE VALUE OF THE FRANC
CONTROLLED, NOT THAT THE POWER OF THE SECRETARY TO PROCLAIM THE VALUE
INCLUDED THE POWER TO CHOOSE BETWEEN TWO AVAILABLE ONES. 

FN8  IT SHOULD BE NOTED THAT WHERE TWO OR MORE CURRENCIES OF
DIFFERENT CHARACTER CIRCULATE IN A FOREIGN COUNTRY THE TREASURY HAS
PROVIDED FOR THE USE OF THE FOREIGN EXCHANGE RATE FOR EACH, THE RATE
USED BEING THE RATE FOR THE CURRENCY IN WHICH THE SAME OR SIMILAR
MERCHANDISE IS USUALLY BOUGHT AND SOLD IN THE ORDINARY COURSE OF
TRADE.  SEE CUSTOMS REGULATIONS OF 1937, ART. 776(A) AND (E), AS
AMENDED BY TREAS. DEC. 50251(I) AND (J), OCTOBER 10, 1940. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

AS PART OF THE EFFECTIVE FINANCIAL CONDUCT OF THE WAR, THE UNITED
KINGDOM BROUGHT STERLING UNDER CONTROL BY FIXING ITS EXCHANGE VALUE.  A
LIMITED SUPPLY OF STERLING IN FOREIGN COUNTRIES PRESENTED A SPECIAL
PROBLEM.  BUT THOUGH THAT SUPPLY WAS OUT OF ITS BOUNDS, GREAT BRITAIN
BY VARIOUS MECHANISMS COULD BRING IT UNDER CONTROL.  APPARENTLY IT
MOVED TO DO SO AS QUICKLY AS ECONOMIC AND POLITICAL CONSIDERATIONS
PERMITTED.  SEE THE STATEMENT OF THE CHANCELLOR OF THE EXCHEQUER ON
APRIL 9, 1940, IN REPLY TO VARIOUS QUESTIONS IN THE HOUSE OF COMMONS,
359 H.C. DEB.  (5TH SER.  1940) 461-463.  THUS, WHILE "THE VAST BULK OF
TRANSACTIONS BETWEEN STERLING AND OTHER CURRENCIES" WAS CONDUCTED AT
THE EXCHANGE RATE FIXED BY THE GOVERNMENT, THE SUPPLY AND DEMAND OF
STERLING ABROAD CREATED A MARKET.  BY VIRTUE OF VARIOUS BRITISH
RESTRICTIONS THIS FREE STERLING MARKET BECAME INCREASINGLY THIN.  SEE
26 FED. RES. BULL.  (JULY, 1940) 638; THE COMMERCIAL AND FINANCIAL
CHRONICLE, APRIL 20, 1940, VOL. 150, PT. 2, PP. 2478-79.  NEVERTHELESS,
UNTIL THE BRITISH GOVERNMENT COMPLETELY CLAMPED DOWN ON THE USE OF THIS
FREE STERLING IN PAYMENT OF EXPORTS, IT WAS POSSIBLE TO PAY FOR SUCH
EXPORTS IN STERLING PURCHASED AT A LOWER RATE THAN THAT WHICH THE
BRITISH GOVERNMENT BELIEVED TO BE A REFLECTION OF THE TRUE VALUE OF THE
POUND AND OFFICIALLY FIXED AS SUCH. 

PLAINLY ENOUGH, A SINGLE CURRENCY HAVING MULTIPLE VALUES HAS
IMPORTANT BEARINGS UPON THE FLOW OF GOODS AND UPON INTERNATIONAL
ECONOMIC RELATIONS.  IN THE CASE OF GREAT BRITAIN, THE SITUATION MAY
HAVE NOT BEEN SERIOUS BECAUSE, AS WE NOTED, FREE STERLING PLAYED A
RELATIVELY SMALL SHARE IN THE ECONOMIC INTERCHANGE BETWEEN THE TWO
COUNTRIES.  THE "FREE" RATE WAS EMPLOYED ONLY IN LIMITED TRANSACTIONS
AND EVIDENTLY REPRESENTED ON THE PART OF GREAT BRITAIN MERELY A
TRANSITORY COMPROMISE WITH CIRCUMSTANCES.  IN SHORT, THE OFFICIAL RATE
WAS NOT AN UNREALITY.  BUT IN THE CASE OF SOME COUNTRIES, A DUAL SYSTEM
OF RATES OF EXCHANGE MAY HAVE DECISIVE ECONOMIC EFFECTS THROUGH HIGHLY
ORGANIZED MANIPULATION OF EXCHANGE, WITH ALL THE EVILS THAT RESULT FROM
CONFUSION AND FROM DEPRECIATED CURRENCIES. 

TO DISPOSE OF THE CASE ON THE ASSUMPTION THAT IT MERELY INVOLVES
ENFORCEMENT OF A CONGRESSIONAL POLICY FOR ASSURING APPROXIMATE ACCURACY
IN DETERMINING THE TRUE DOLLAR VALUE OF A PARTICULAR IMPORTATION IS TO
THROW THE SIGNIFICANCE OF THE CASE OUT OF FOCUS.  THE PROBLEM, AS I SEE
IT, IS WHETHER CONGRESS BY SEC. 522(C) OF THE TARIFF ACT OF 1930, 46
STAT. 590, 739, 31 U.S.C. SEC. 372(C), PROHIBITED THE SECRETARY OF THE
TREASURY FROM SAFEGUARDING THE PUBLIC INTEREST AS HE DID, IN RELATION
TO DISLOCATIONS IN THE MONEY MARKETS FOLLOWING THE OUTBREAK OF THE WAR
AND TO THEIR REPERCUSSIONS BOTH UPON OUR DOMESTIC ECONOMY AND OUR
INTERNATIONAL RELATIONS.  THAT THE TREASURY'S INSTRUCTION TO THE
COLLECTORS OF CUSTOMS TO ASSESS TARIFF DUTIES ON THE BASIS OF THE
STERLING RATE FIXED BY THE BRITISH GOVERNMENT WAS NOT AN ORDINARY
TREASURY ORDER AFFECTING THE COLLECTION OF REVENUE IS ATTESTED BY THE
FACT THAT THE INSTRUCTION WAS THE RESULT OF A CONFERENCE OF THE
SECRETARY OF STATE, THE SECRETARY OF THE TREASURY, THE ATTORNEY GENERAL
AND THE SECRETARY OF AGRICULTURE.  SEE NEW YORK TIMES, APRIL 17, 1940,
P. 4, COL. 5; THE COMMERCIAL AND FINANCIAL CHRONICLE, APRIL 20, 1940,
VOL. 150, PT. 2, PP. 2478-79. 

IT IS NOT SUGGESTED THAT APART FROM SEC. 522(C) THIS GOVERNMENT COULD
NOT PROTECT ITS INTERESTS IN RELATION TO THE ABNORMAL CURRENCY
SITUATIONS PRECIPITATED BY THE WAR THROUGH SUCH ACTION AS THE SECRETARY
OF THE TREASURY HERE TOOK.  THE WIDE DUTIES OF FINANCIAL SUPERVISION
POSSESSED BY THE SECRETARY BY VIRTUE OF HIS OFFICE AND THE BROAD POWERS
IMPLIED IN VARIOUS PROVISIONS OF LAW, SEE FOR INSTANCE:  5 U.S.C. SEC.
242, 19 U.S.C. SEC. 3; SEC. 624 OF THE TARIFF ACT OF 1930, 46 STAT.
590, 759, 19 U.S.C. SEC. 1624, AND BOSKE V. COMINGORE, 177 U.S. 459,
WOULD GIVE HIM AMPLE WARRANT TO FIX A RATE FOR DOLLAR CONVERSIONS OF
FOREIGN CURRENCIES ON A UNIFORM BASIS REFLECTING THE DOMINANT VALUE
AMONG MULTIPLE VALUES OF A FOREIGN CURRENCY AND ONE NOT SUBJECT TO
MANIPULATIONS OR INFLUENCES ADVERSE TO OUR INTERESTS. 

WITHDRAWAL OF THIS POWER OF THE SECRETARY OF THE TREASURY IMPLIES A
RADICAL CURTAILMENT OF HIS HISTORIC AND APPROPRIATE AUTHORITY TO
PROTECT THE NATION'S FISCAL INTERESTS.  IF IT CHOSE, OF COURSE CONGRESS
COULD SO CURTAIL THE SECRETARY'S POWERS.  BUT SUCH AN IMPORTANT CHANGE
IN THE EXECUTIVE RESPONSIBILITY FOR OUR FISCAL AFFAIRS OUGHT TO BE
DISCLOSED THROUGH SOME UNEQUIVOCAL CONGRESSIONAL EXPRESSION.  TO FIND
SUCH DESTRUCTIVE FORCE IN SEC. 522(C) IS TO ATTRIBUTE TO IT A POTENCY
NOT DESIGNED BY CONGRESS.  IT IS CONCEDED THAT IN THE LEGISLATION WHICH
IS NOW SEC. 522(C) CONGRESS WAS CONCERNED SOLELY WITH FLUCTUATIONS IN A
SINGLE EXCHANGE RATE, A PROBLEM THROWN UP AFTER THE FIRST WORLD WAR. 
AND SO CONGRESS DESIGNATED THE FEDERAL RESERVE BANK AS A FACT-FINDING
AGENCY TO ASCERTAIN THE MOST DURABLE AMONG FLUCTUATING QUOTATIONS.  BUT
MULTIPLE RATES FOR A SINGLE CURRENCY - WITH THEIR EFFECTS UPON THE FLOW
OF GOODS AND UPON INTERNATIONAL ECONOMIC RELATIONS AND THE
OPPORTUNITIES THEY AFFORD FOR HIGHLY ORGANIZED MANIPULATIONS OF
EXCHANGE - PRESENT A TOTALLY DIFFERENT PROBLEM.  THAT PROBLEM, AS IS
ADMITTED BY THE FEDERAL RESERVE BANK APPEARING BEFORE US AS AMICUS
CURIAE, WAS NOT AT ALL IN THE CONTEMPLATION OF CONGRESS.  THAT PROBLEM
WAS NOT DEALT WITH BY CONGRESS BECAUSE IT DID NOT CONFRONT CONGRESS. 
AS A PROBLEM IT DID NOT EMERGE UNTIL, IN 1940, THE PRESENT WAR
CONFRONTED THE FEDERAL RESERVE BANK AND THE SECRETARY OF THE TREASURY
WITH IT.    THE FEDERAL RESERVE BANK AND THE SECRETARY OF THE TREASURY,
HAVING DIFFERENT FUNCTIONS, NATURALLY DEALT WITH IT DIFFERENTLY. 
ALTHOUGH, TO BE SURE, SEC. 522(C) CHARGED THE FEDERAL RESERVE BANK WITH
THE ASCERTAINMENT OF A SINGLE EXCHANGE RATE, THE BANK NATURALLY ENOUGH
SOLVED THE DILEMMA WHICH CONFRONTED IT WHEN THERE WERE TWO RATES FOR
STERLING BY REPORTING BOTH, ALTHOUGH THE SIGNIFICANCE OF THE TWO RATES
AND THE RANGE OF THEIR FUNCTIONS VARIED GREATLY.  IT WAS NOT FOR THE
BANK TO PICK ONLY ONE RATE, FOR THE BANK IS MERELY A REPORTING AGENCY
AND NOT A POLICY-MAKING AGENCY.  BUT THE DETERMINATION WHETHER ONE OF
THE TWO RATES IS THE RATE, AND IF SO WHICH SHOULD HAVE THAT FISCAL
FUNCTION, IS A POLICY PROBLEM, AND THE SECRETARY OF THE TREASURY IS THE
AGENCY VESTED WITH RESPONSIBILITY FOR FISCAL POLICIES. 

FOR THE SELECTION BY THE SECRETARY OF THE TREASURY OF AN EXCHANGE RATE
IN A SITUATION LIKE THE ONE BEFORE US HAS IMPLICATIONS FAR BEYOND
TRANSLATING INTO DOLLARS THE VALUE AT WHICH A PARTICULAR IMPORTER
ACTUALLY SETTLED FOR THE FOREIGN PRICE OF HIS GOODS.  THE SELECTION OF
THE GOVERNING RATE OF EXCHANGE IN THE CASE OF MULTIPLE RATES AFFECTS AT
LEAST THREE VERY IMPORTANT PHASES OF OUR INTERNATIONAL ECONOMIC
RELATIONS.  BY SEC. 402 OF THE TARIFF ACT OF 1930, 46 STAT. 590, 708,
19 U.S.C. SEC. 1402, IN THE ASSESSMENT OF AD VALOREM DUTIES IT IS
NECESSARY TO ASCERTAIN THE FOREIGN MARKET VALUE, WHICH NORMALLY MEANS
THE FOREIGN HOME VALUE.  COMMODITIES SUBJECT TO THE "OFFICIAL" RATE AND
COMMODITIES AVAILABLE THROUGH "FREE" STERLING MAY WELL HAVE AN
IDENTICAL HOME VALUE AND YET, ACCORDING TO THE CONTENTION OF THE
IMPORTER, ONE VALUATION WOULD HAVE TO BE REACHED ACCORDING TO SEC.
522(C) AND ANOTHER ACCORDING TO SEC. 402.  AGAIN, THE SECRETARY OF THE
TREASURY MAY IMPOSE COUNTERVAILING DUTIES WHENEVER HE FINDS THAT
IMPORTED GOODS ENJOY A BOUNTY, DIRECT OR INDIRECT.  SECTION 303 OF THE
TARIFF ACT OF 1930, 46 STAT. 590, 687, 19 U.S.C. SEC. 1303.  SUCH
BOUNTIES MAY READILY TAKE THE FORM OF FAVORABLE EXCHANGE RATES.  AN
UNWARRANTABLY RIGID DENIAL TO THE SECRETARY OF THE DETERMINATION OF AN
EXCHANGE RATE WHICH IN SUBSTANCE CORRESPONDS TO THE REALITIES OF
INTERNATIONAL EXCHANGE MAY FORCE HIM TO EXERCISE THE PENALIZING POWER
OF IMPOSING COUNTERVAILING DUTIES.  FINALLY, FOREIGN EXCHANGE RATES
AFFECT THE FRUITFUL USE OF FOREIGN TRADE AGREEMENTS.  SECTION 350 OF
THE TARIFF ACT OF 1930 AS AMENDED BY 48 STAT. 943, 19 U.S.C. SEC. 1351
ET SEQ. 

ALL THESE DANGEROUS POTENTIALITIES WOULD OF COURSE BE IRRELEVANT IF
CONGRESS HAD DEALT WITH THE PROBLEM OF MULTIPLE RATES IN A RIGID WAY
AND PUT THE RESPONSIBILITY UPON THE FEDERAL RESERVE BANK TO SELECT ONE
OF SUCH MULTIPLE RATES.  BUT THE HAND OF THE GOVERNMENT OUGHT NOT TO BE
TIED TOO CLOSELY WHERE, TO PUT IT MILDLY, THE CONGRESSIONAL PURPOSE HAS
BEEN AMBIGUOUSLY EXPRESSED.  WE CANNOT FIND SUCH PURPOSE FROM A READING
OF WHAT CONGRESS HAS WRITTEN.  WE ARE HARDLY JUSTIFIED IN ASSUMING THAT
IF CONGRESS HAD ADDRESSED ITSELF TO THIS PROBLEM IT WOULD HAVE TIED THE
HANDS OF THE SECRETARY OF THE TREASURY AND BROUGHT INTO PLAY ALL THE
DIFFICULTIES THAT HAVE BEEN INDICATED IN THE ASCERTAINMENT OF FOREIGN
HOME VALUE, IN THE IMPOSITION OF COUNTERVAILING DUTIES, AND IN
EMBARRASSING THE POLICY OF TRADE AGREEMENTS.  THE POWER OF CONGRESS TO
PASS NEW LEGISLATION IS HARDLY A REASON FOR GIVING OLD LEGISLATION A
CONSTRUCTION THAT DISREGARDS ITS HISTORY AND ITS CONTEXT AND THE
UNHAPPY CONSEQUENCES OF SUCH DISREGARD. 

OF COURSE, GENERAL CONDEMNATION OF A PRACTICE COVERS ANY SPECIFIC
MANIFESTATION OF IT, EVEN THOUGH THE LATTER WAS "UNFORESEEN" BY
CONGRESS, PUERTO RICO V. SHELL CO., 302 U.S. 253, JUST AS A GENERAL
OUTLAWRY OF THE USE OF A FALSE DOCUMENT HITS ALSO A USE TO WHICH THE
DOCUMENT WAS NOT "ORDINARILY" PUT WHEN THE LEGISLATION WAS PASSED. 
BROWDER V. UNITED STATES, 312 U.S. 335.  BUT THESE ARE INSTANCES OF
PROPER STATUTORY CONSTRUCTION QUITE IRRELEVANT TO THE PRESENT CASE.  IT
IS ONE THING FOR JUDGES NOT TO EXCISE A PARTICULAR SITUATION FROM
LANGUAGE APPROPRIATELY DESCRIBING A GENERAL PROBLEM.  JUDICIAL
INTERPOLATION INTO A STATUTE OF A WHOLLY UNRELATED PROBLEM NOT
ENVISAGED BY CONGRESS IS QUITE ANOTHER MATTER.  IN THIS CASE WE HAVE
NOT AN UNFORESEEN SITUATION FITTING INTO A GENERAL CONTEXT.  HERE WE
HAVE AN UNFORESEEN PROBLEM WITH WHICH CONGRESS DID NOT DEAL AND YET, BY
NOT DEALING WITH IT, IS SAID TO HAVE TAKEN AWAY AUTHORITY THERETOFORE
BELONGING TO THE SECRETARY OF THE TREASURY.  IF THE PROBLEM ITSELF WAS
NOT IN THE CONTEMPLATION OF CONGRESS, AS THIS PROBLEM WAS NOT, HOW CAN
IT BE SAID THAT CONGRESS LEGISLATED CONCERNING THAT PROBLEM? 

THE JUDGMENT SHOULD BE AFFIRMED. 

MR. JUSTICE BLACK JOINS IN THIS DISSENT. 
..END :





PRICE V. GURNEY, 324 U.S. 100 


NO. 410.  ARGUED JANUARY 12, 1945.  - DECIDED FEBRUARY 5, 1945.  - 142
F.2D 404, REVERSED. 


1.  THE BANKRUPTCY COURT IS WITHOUT JURISDICTION TO ENTERTAIN A
CHAPTER X PETITION FILED ON BEHALF OF A CORPORATION (ORGANIZED UNDER
STATE LAW) BY STOCKHOLDERS WHO UNDER THE LOCAL LAW ARE WITHOUT
AUTHORITY TO INSTITUTE SUCH PROCEEDINGS, EVEN THOUGH THAT AUTHORITY
MIGHT HAVE BEEN OBTAINABLE UNDER THE LOCAL LAW BY PROCEEDINGS IN
ANOTHER FORUM.  P. 106. 

2.  UNDER THE BANKRUPTCY ACT, THE POWER OF THE BANKRUPTCY COURT OVER
THE DEBTOR AND ITS PROPERTY PRIOR TO THE APPROVAL OF THE PETITION DOES
NOT EXTEND TO THIS SITUATION.  P. 106. 

PRICE, TRUSTEE, ET AL. V. GURNEY ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 323 U.S. 696, TO REVIEW THE REVERSAL OF AN ORDER OF THE
BANKRUPTCY COURT DISMISSING A PETITION UNDER CHAPTER X OF THE
BANKRUPTCY ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE WESTERN TOOL & MANUFACTURING CO. IS AN OHIO CORPORATION.  IT HAS
OUTSTANDING SOME 1,100 SHARES OF STOCK AND ALSO BONDS WHICH TOTAL IN
PRINCIPAL AMOUNT $73,000 WITH LARGE ARREARAGES OF INTEREST.  SOME
TWENTY YEARS AGO, FOLLOWING A DEFAULT IN PAYMENT OF INTEREST ON THE
BONDS, MORE THAN 50 PER CENT OF THE SHARES OF STOCK WERE PLACED IN A
VOTING TRUST, THE VOTING TRUSTEES BEING DESIGNATED BY THE BONDHOLDERS. 
THE BONDS WERE DEPOSITED WITH A BONDHOLDERS' COMMITTEE.  THE VOTING
TRUSTEES WERE MEMBERS OF THE BONDHOLDERS' COMMITTEE; AND SOME OF THE
VOTING TRUSTEES WERE ALSO DIRECTORS AND OFFICERS OF THE COMPANY.  SINCE
THE VOTING TRUST WAS FORMED THE BONDHOLDERS HAVE BEEN IN CONTROL OF THE
COMPANY.  DIRECTORS HAVE BEEN ELECTED BY THE VOTING TRUSTEES.  IN 1942
THE TRUSTEE UNDER THE MORTGAGE DEED OF TRUST FILED A PETITION TO
FORECLOSE THE LIEN OF THE BONDHOLDERS IN AN OHIO COURT.  THE COURT
APPOINTED ONE OF THE VOTING TRUSTEES RECEIVER; AND HE HAS OPERATED THE
COMPANY AS A GOING CONCERN SINCE THAT TIME.  THE COMPANY FILED ITS
ANSWER IN THE FORECLOSURE PROCEEDING, ADMITTING THE ALLEGATIONS OF THE
BILL AND CONSENTING TO THE APPOINTMENT OF A RECEIVER.  THEREAFTER A
JUDGMENT WAS ENTERED ON THE MORTGAGE FOR SOME $134,000.  RESPONDENT
ACTING ON BEHALF OF HIMSELF AND OTHER HOLDERS OF SHARES OR OF VOTING
TRUST RECEIPTS MOVED TO SET THE JUDGMENT OF THE STATE COURT ASIDE.  WE
ARE TOLD THAT THAT MOTION WAS DENIED.  IT DOES NOT APPEAR WHETHER THERE
WAS AN APPEAL FROM THAT DENIAL OR WHETHER RESPONDENT SOUGHT TO
INTERVENE IN THE FORECLOSURE PROCEEDINGS.  RESPONDENT AS OWNER OF 7
SHARES OF STOCK AND AS AGENT FOR OWNERS OF SOME 675 SHARES (INCLUDING
CERTAIN SHARES DEPOSITED UNDER THE VOTING TRUST) ALSO FILED A PETITION
IN THE NAME OF WESTERN TOOL & MANUFACTURING CO. IN THE DISTRICT COURT
ASKING THAT THE COMPANY BE GIVEN RELIEF UNDER CHAPTER X OF THE
BANKRUPTCY ACT.  52 STAT. 883, 11 U.S.C. SEC. 501.  THE PETITION
STATED, AMONG OTHER THINGS, THAT THE VALUE OF THE ASSETS OF THE COMPANY
WAS GREATLY IN EXCESS OF THE INDEBTEDNESS AND THAT THAT VALUE WOULD BE
LOST TO THE STOCKHOLDERS IN THE FORECLOSURE ACTION.  RESPONDENT
ACCOMPANIED THE PETITION WITH AN AFFIDAVIT WHICH STATED THAT AN
UNSUCCESSFUL ATTEMPT HAD BEEN MADE TO HAVE THE CORPORATION FILE THE
PETITION.  THE AFFIDAVIT SET FORTH RATHER SERIOUS CHARGES AGAINST THE
MANAGEMENT OF THE COMPANY.  IT ALLEGED THAT THE DIRECTORS WERE
UNLAWFULLY ELECTED AND THAT THE CORPORATION WAS WITHOUT A DE JURE
BOARD.  IT ALLEGED THAT CERTAIN OF THE DIRECTORS WERE OCCUPYING
CONFLICTING AND INCONSISTENT FIDUCIARY POSITIONS, I.E. AS MEMBERS OF
THE COMMITTEE THEIR FIDUCIARY RESPONSIBILITY WAS TO THE BONDHOLDERS, AS
VOTING TRUSTEES THEIR FIDUCIARY DUTIES WERE TO THE DEPOSITING
STOCKHOLDERS, AS DIRECTORS AND OFFICERS THEIR FIDUCIARY OBLIGATION WAS
TO ALL THE STOCKHOLDERS, DEPOSITING AND NON-DEPOSITING.  IT CHARGED
THEM WITH ACTS OF MISMANAGEMENT, WITH DISSIPATION OF THE ASSETS OF THE
COMPANY, AND WITH MANAGEMENT OF THE COMPANY SOLELY FOR THE BENEFIT OF
THE BONDHOLDERS AND AGAINST THE INTERESTS OF THE STOCKHOLDERS.  IT
ALLEGED THAT THE VOTING TRUST WAS ILLEGAL AND VOID AND WAS NO LONGER IN
EFFECT SINCE IT HAD BY ITS TERMS EXPIRED.  AND IT ASSERTED THAT THE
ONLY WAY IN WHICH THE VALUE OF THE STOCKHOLDERS' EQUITY IN THE COMPANY
COULD BE PRESERVED WAS BY REORGANIZATION IN BANKRUPTCY. 

THE DISTRICT COURT FIRST APPROVED THE PETITION AS PROPERLY FILED. 
LATER THE BONDHOLDERS' COMMITTEE AND THE CORPORATION FILED MOTIONS TO
DISMISS THE PETITION ON THE GROUNDS, AMONG OTHERS, THAT THE BOARD OF
DIRECTORS OF THE COMPANY HAD NOT AUTHORIZED IT.  A HEARING WAS HELD,
FOLLOWING WHICH THE DISTRICT COURT DISMISSED THE PETITION.  THE CIRCUIT
COURT OF APPEALS REVERSED, ONE JUDGE DISSENTING.  142 F.2D 404.  THE
CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED
BECAUSE OF THE IMPORTANCE OF THE PROBLEM IN THE ADMINISTRATION OF THE
BANKRUPTCY ACT. 

CHAPTER X PROVIDES IN SEC. 126 THAT 

"A CORPORATION, OR THREE OR MORE CREDITORS WHO HAVE CLAIMS AGAINST A
CORPORATION OR ITS PROPERTY AMOUNTING IN THE AGGREGATE TO $5,000 OR
OVER, LIQUIDATED AS TO AMOUNT AND NOT CONTINGENT AS TO LIABILITY, OR AN
INDENTURE TRUSTEE WHERE THE SECURITIES OUTSTANDING UNDER THE INDENTURE
ARE LIQUIDATED AS TO AMOUNT AND NOT CONTINGENT AS TO LIABILITY, MAY, IF
NO OTHER PETITION BY OR AGAINST SUCH CORPORATION IS PENDING UNDER THIS
CHAPTER, FILE A PETITION UNDER THIS CHAPTER."  A CREDITOR IS DEFINED IN
SEC. 106(4) AS THE HOLDER OF ANY "CLAIM."  A CLAIM IS DEFINED IN SEC.
106(1) SO AS TO EXCLUDE STOCK.  AND A PETITION IS DEFINED AS ONE FILED
UNDER CHAPTER X BY A DEBTOR, CREDITORS, OR INDENTURE TRUSTEE.  SEC.
106(9).  IT IS THEREFORE APPARENT THAT CONGRESS HAS NOT GIVEN TO
STOCKHOLDERS THE RIGHT TO FILE PETITIONS UNDER CHAPTER X. THE ABSENCE
OF THAT RIGHT IS EMPHASIZED WHEN WE TURN TO OTHER PROVISIONS OF THE
CHAPTER WHICH DEFINE THE RIGHTS OF STOCKHOLDERS IN THESE REORGANIZATION
PROCEEDINGS.  WHEN A DEBTOR IS CONTINUED IN POSSESSION, A PLAN MAY BE
FILED "BY ANY STOCKHOLDER, IF THE DEBTOR IS NOT FOUND TO BE
INSOLVENT."  SEC. 170(3).  ANY STOCKHOLDER HAS THE RIGHT TO BE HEARD
"ON ALL MATTERS ARISING IN A PROCEEDING UNDER THIS CHAPTER."  SEC.
206.  AND DETAILED PROVISIONS ARE INCLUDED FOR THE PROTECTION OF SUCH
EQUITY AS THE STOCKHOLDERS MAY HAVE IN THE BUSINESS.  SEE FOR EXAMPLE
SEC. 179, SEC. 180, SEC. 196, SEC. 197, SEC. 216, SEC. 221.  THUS THE
RIGHTS WHICH THE STOCKHOLDERS ARE GRANTED BY THE ACT ARISE AFTER THE
PROCEEDINGS HAVE BEEN INSTITUTED.  THEREAFTER THEY NEED NOT BE
REPRESENTED SOLELY BY THE DEBTOR CORPORATION.  THEY MAY APPEAR IN THEIR
OWN RIGHT.  INDEED, THE ACT CONTEMPLATES THEIR PARTICIPATION IN THE
PROCEEDINGS FOR THE PROTECTION OF SUCH EQUITY AS THEY MAY HAVE.  BUT
THE INITIATION OF THE PROCEEDINGS, LIKE THE RUN OF CORPORATE
ACTIVITIES, IS LEFT TO THE CORPORATION ITSELF, I.E. TO THOSE WHO HAVE
THE POWER OF MANAGEMENT. 

THESE PRINCIPLES ARE NOT SERIOUSLY QUESTIONED.  AND RESPONDENTS MAKE
NO PRETENSE OF SAYING THAT THEY IN FACT HAVE THE POWER OF MANAGEMENT
OVER THIS OHIO CORPORATION OR THAT SEC. 8623-55 OF OHIO'S GENERAL
CORPORATION ACT WHICH VESTS THE MANAGEMENT OF OHIO CORPORATIONS IN THE
BOARD OF DIRECTORS  FN1  IS INAPPLICABLE HERE.  THEIR THEORY RATHER IS
THAT THE DIRECTORS HAVE BREACHED THEIR TRUST AND HAVE CAUSED THE
CORPORATION TO COMMIT ACTS WHICH ARE CONFISCATORY OF THE STOCKHOLDERS'
INTERESTS, THAT THE CORPORATION HAS A DEFENSE AGAINST OR A REMEDY IN
ALLEVIATION OF THE FORECLOSURE ACTION WHICH THE DIRECTORS REFUSE TO
INVOKE, AND THAT THEREFORE THE STOCKHOLDERS UNDER THE FAMILIAR RULES
GOVERNING DERIVATIVE ACTIONS (DODGE V. WOOLSEY, 18 HOW.  331; DAVENPORT
V. DOWS, 18 WALL.  626; HAWES V. OAKLAND, 104 U.S. 450) MAY PROCEED ON
BEHALF OF THE CORPORATION.  THAT WAS THE VIEW WHICH PREVAILED IN THE
CIRCUIT COURT OF APPEALS.  BUT WE DO NOT THINK IT STANDS ANALYSIS. 

THERE IS A MISCONCEPTION RUNNING THROUGH THE PRESENTATION OF THIS
CASE WHICH SHOULD BE NOTED AT THE OUTSET.  IT IS A MISNOMER TO SPEAK OF
THE FILING OF THE PETITION ON BEHALF OF THE CORPORATION AS A DERIVATIVE
ACTION.  A DERIVATIVE ACTION IS A SUIT BY A SHAREHOLDER TO ENFORCE A
CORPORATE CAUSE OF ACTION.  THE CORPORATION IS A NECESSARY PARTY TO THE
SUIT.  AND THE RELIEF WHICH IS GRANTED IS A JUDGMENT AGAINST A THIRD
PERSON IN FAVOR OF THE CORPORATION.  THAT IS THE RULE IN OHIO AS WELL
AS ELSEWHERE.  10 OHIO JURIS.  SECS.  244 ET SEQ.; DODGE V. WOOLSEY,
SUPRA; DAVENPORT V. DOWS, SUPRA; HILL V. MURPHY, 212 MASS. 1, 98 N.E.
781; GROEL V. UNITED ELECTRIC CO., 70 N.J. EQ. 616, 61 A. 1061;
CONTINENTAL SECURITIES CO. V. BELMONT, 206 N.Y. 7, 99 N.E. 138. 
SIMILARLY IF A CORPORATION HAS A DEFENSE TO AN ACTION AGAINST IT AND IS
NOT ASSERTING IT, A STOCKHOLDER MAY INTERVENE AND DEFEND ON BEHALF OF
THE CORPORATION.  10 OHIO JURIS.  SEC.  257; EGGERS V. NATIONAL RADIO
CO., 208 CAL. 308, 281 P. 58; FITZWATER V. NATIONAL BANK, 62 KAN. 163,
61 P. 684.  MOREOVER, EQUITY HAS EVOLVED NUMEROUS REMEDIES TO PROTECT
NOT ONLY THE RIGHTS OF THE CORPORATION BUT THE INTERESTS OF THE
STOCKHOLDERS AS SUCH AGAINST VARIOUS ACTS OF MISMANAGEMENT.  SEE 10
OHIO JURIS.  SECS.  260 ET SEQ.; BERLE, STUDIES IN THE LAW OF
CORPORATION FINANCE (1928).  BUT RESPONDENTS HAVE NOT PURSUED EITHER
COURSE.  THE PETITION WHICH THEY HAVE FILED WITH THE BANKRUPTCY COURT
IS NOT A SUIT TO ENFORCE OR PROTECT A CORPORATE RIGHT.  NOR IS IT A
SUIT TO PROTECT THE INTERESTS OF RESPONDENTS AS STOCKHOLDERS.  YET IF
IT WERE EITHER ONE, THE FEDERAL DISTRICT COURT COULD NOT ENTERTAIN IT.
NO DIVERSITY OF CITIZENSHIP IS SHOWN AND NO OTHER BASIS OF FEDERAL
JURISDICTION IS APPARENT.  THE QUESTION THEREFORE IS WHETHER THE
BANKRUPTCY COURT AS AN INCIDENT OF ITS BANKRUPTCY POWERS CAN GIVE
RESPONDENTS THE RELIEF WHICH, IF THEIR CHARGES ARE TAKEN AS TRUE, THEY
MIGHT OBTAIN IN ANOTHER FORUM.  WE DO NOT THINK IT CAN. 

THE DISTRICT COURT IN PASSING ON PETITIONS FILED BY CORPORATIONS UNDER
CHAPTER X MUST OF COURSE DETERMINE WHETHER THEY ARE FILED BY THOSE WHO
HAVE AUTHORITY SO TO ACT.  IN ABSENCE OF FEDERAL INCORPORATION, THAT
AUTHORITY FINDS ITS SOURCE IN LOCAL LAW.  IF THE DISTRICT COURT FINDS
THAT THOSE WHO PURPORT TO ACT ON BEHALF OF THE CORPORATION HAVE NOT
BEEN GRANTED AUTHORITY BY LOCAL LAW TO INSTITUTE THE PROCEEDINGS, IT
HAS NO ALTERNATIVE BUT TO DISMISS THE PETITION.  IT IS NOT ENOUGH THAT
THOSE WHO SEEK TO SPEAK FOR THE CORPORATION MAY HAVE THE RIGHT TO
OBTAIN THAT AUTHORITY.  THE JURISDICTION WHICH CONGRESS HAS GIVEN THE
BANKRUPTCY COURT OVER THE DEBTOR AND ITS PROPERTY PRIOR TO THE APPROVAL
OF THE PETITION (SEE SEC. 111, SEC. 112, AND SEC. 113) DOES NOT EXTEND
TO THIS SITUATION.  THE DISTRICT COURT IN THE EXERCISE OF ITS DIVERSITY
JURISDICTION WOULD OF COURSE HAVE THE POWER TO ENFORCE DERIVATIVE
ACTIONS,  FN2  TO MAKE FAITHLESS DIRECTORS ACCOUNT, AND THE LIKE, WHERE
LOCAL LAW PERMITS.  BUT UNDER THE BANKRUPTCY ACT THE POWER OF THE COURT
TO SHIFT THE MANAGEMENT OF A CORPORATION FROM ONE GROUP TO ANOTHER, TO
SETTLE INTRACORPORATE DISPUTES, AND TO ADJUST INTRACORPORATE CLAIMS IS
STRICTLY LIMITED TO THOSE SITUATIONS WHERE A PETITION HAS BEEN
APPROVED.  THUS SEC. 156 PROVIDES FOR THE DISPLACEMENT OF THE
MANAGEMENT AND THE APPOINTMENT OF A DISINTERESTED TRUSTEE  FN3  IN CASE
OF CERTAIN COMPANIES AFTER APPROVAL OF THE PETITION.  IN OTHER
SITUATIONS THE COURT MAY CONTINUE THE DEBTOR IN POSSESSION.  SEC. 156. 
THE PLAN MUST INCLUDE PROVISIONS "WHICH ARE EQUITABLE, COMPATIBLE WITH
THE INTERESTS OF CREDITORS AND STOCKHOLDERS, AND CONSISTENT WITH PUBLIC
POLICY" WITH RESPECT TO THE MANNER OF SELECTION OF DIRECTORS, OFFICERS
AND THE LIKE.  SEC. 216(11).  AND THE PLAN MUST LIKEWISE PROVIDE FOR
THE RETENTION AND ENFORCEMENT OF CLAIMS, NOT SETTLED OR ADJUSTED IN THE
PLAN, WHICH THE CORPORATION MAY HAVE AGAINST OFFICERS, DIRECTORS, AND
OTHERS.  SEC. 216(13).  BUT NOWHERE IS THERE ANY INDICATION THAT
CONGRESS BESTOWED ON THE BANKRUPTCY COURT JURISDICTION TO DETERMINE
THAT THOSE WHO IN FACT DO NOT HAVE THE AUTHORITY TO SPEAK FOR THE
CORPORATION AS A MATTER OF LOCAL LAW ARE ENTITLED TO BE GIVEN SUCH
AUTHORITY AND THEREFORE SHOULD BE EMPOWERED TO FILE A PETITION ON
BEHALF OF THE CORPORATION.  RESPONDENTS MAY HAVE A MERITORIOUS CASE FOR
RELIEF.  ON THAT WE INTIMATE NO OPINION.  BUT IF THEY ARE TO BE ALLOWED
TO PUT THEIR CORPORATION INTO BANKRUPTCY, THEY MUST PRESENT CREDENTIALS
TO THE BANKRUPTCY COURT SHOWING THEIR AUTHORITY. 

IT IS ARGUED THAT CIRCUITY OF ACTION WILL BE AVOIDED AND THE ADEQUACY
OF STOCKHOLDERS' REMEDIES WILL BE ENHANCED IF THE BANKRUPTCY COURT IS
AUTHORIZED TO ENTERTAIN PETITIONS LIKE THE PRESENT ONE.  THAT MAY WELL
BE TRUE.  BUT ANY SUCH ENLARGEMENT OF THE JURISDICTION OF THE
BANKRUPTCY COURTS IS FOR CONGRESS.  IT HAS CHOSEN TO WITHHOLD FROM
STOCKHOLDERS THE RIGHT TO INSTITUTE THESE BANKRUPTCY PROCEEDINGS.  IN
ABSENCE OF FEDERAL INCORPORATION, INTRACORPORATE DISPUTES OF THE
CHARACTER PRESENTED HERE ARE, AS WE HAVE SAID, GOVERNED BY STATE LAW. 
THE CREATION OF A NEW BASIS OF FEDERAL JURISDICTION TO HEAR THEM, PASS
ON THEIR MERITS, AND ADJUDICATE THEM IS A LEGISLATIVE ACT. 

A DIFFERENT QUESTION IS PRESENTED WHERE STOCKHOLDERS APPEAR IN
OPPOSITION TO A PETITION FILED BY THE CORPORATION.  SEE SEC. 206.  CF.
IN RE BEAVER COTTON MILLS, 275 F. 498; WHITTAKER V. BRICTSON MFG. CO.,
43 F.2D 485.  REVERSED. 

FN1  THAT SECTION READS IN PART AS FOLLOWS: 

"ALL THE CAPACITY OF A CORPORATION SHALL BE VESTED IN AND ALL ITS
AUTHORITY, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT OR IN THE ARTICLES
IN REGARD TO ACTION REQUIRED TO BE TAKEN, AUTHORIZED OR APPROVED BY
SHAREHOLDERS, SHALL BE EXERCISED BY A BOARD OF DIRECTORS OF NOT LESS
THAN THREE PERSONS, WHICH SHALL MANAGE AND CONDUCT THE BUSINESS OF THE
CORPORATION." 

FN2  SEE RULE 23(B), RULES OF CIVIL PROCEDURE.    FN3  AS DEFINED IN
SEC. 158. 
..END :





















FIDELITY CO. V. ROTHENSIES, 324 U.S. 108 


NO. 263.  ARGUED JANUARY 4, 5, 1945.  - DECIDED FEBRUARY 5, 1945.  - 142
F.2D 838, AFFIRMED. 


DECEDENT MADE A TRANSFER OF PROPERTY IN TRUST TO PAY THE INCOME TO
HERSELF FOR LIFE, THENCE TO HER TWO DAUGHTERS, WITH REMAINDERS TO THE
DAUGHTERS' SURVIVING DESCENDANTS; BUT IF BOTH DAUGHTERS SHOULD DIE
WITHOUT DESCENDANTS SURVIVING, THE CORPUS WAS TO GO TO SUCH PERSONS AS
THE DECEDENT SHOULD APPOINT BY WILL.  DECEDENT EXERCISED THE POWER OF
APPOINTMENT BY WILL AND PREDECEASED THE DAUGHTERS.  HELD: 

1.  THE TRANSFER WAS "INTENDED TO TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER (DECEDENT'S) DEATH," WITHIN THE MEANING OF SEC.
302(C) OF THE REVENUE ACT OF 1926.  P. 110. 

2.  THE VALUE AT THE DATE OF THE DEATH OF THE DECEDENT OF THE ENTIRE
CORPUS OF THE TRUST WAS INCLUDIBLE IN THE GROSS ESTATE OF THE DECEDENT
FOR THE PURPOSE OF THE ESTATE TAX UNDER THE 1926 ACT.  P. 111. 

UNDER SEC. 302(C) THE TAXABLE GROSS ESTATE MUST INCLUDE THOSE
PROPERTY INTERESTS THE ULTIMATE POSSESSION AND ENJOYMENT OF WHICH IS
HELD IN SUSPENSE UNTIL THE MOMENT OF THE GRANTOR'S DEATH OR
THEREAFTER. 

3. THERE WAS NO BASIS FOR DEDUCTION FROM THE DECEDENT'S GROSS ESTATE
OF THE VALUES OF THE ESTATES OF THE DAUGHTERS OR THEIR DESCENDANTS.  P.
112. 

FIDELITY-PHILADELPHIA TRUST CO. ET AL., EXECUTORS, V. ROTHENSIES,
COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 323 U.S. 693, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DENYING RECOVERY IN A SUIT FOR REFUND OF FEDERAL ESTATE TAXES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

OUR ATTENTION HERE IS DIRECTED TOWARD THE PROPER VALUATION FOR
FEDERAL ESTATE TAX PURPOSES OF THE CORPUS OF AN INTER VIVOS TRUST WHERE
THE TRANSFER WAS INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT
OR AFTER DEATH AND WHERE THE SETTLOR RETAINED A LIFE ESTATE IN THE
TRUST INCOME AND A REVERSIONARY INTEREST IN THE CORPUS. 

ON MARCH 26, 1928, THE DECEDENT, ANNA C. STINSON OF BRYN MAWR, PA.,
TRANSFERRED CERTAIN PROPERTY IN TRUST, THE VALUE OF WHICH AT THE TIME
OF HER DEATH WAS $84,443.49.  THE INCOME OF THE TRUST WAS TO BE PAID TO
THE SETTLOR DURING HER LIFE AND AT HER DEATH TO HER DAUGHTERS (AGED 12
AND 10 AT THE TIME OF THE CREATION OF THE TRUST) DURING THEIR
RESPECTIVE LIVES.  AT THE DEATH OF EACH DAUGHTER, THE CORPUS SUPPORTING
HER SHARE OF THE INCOME WAS TO BE PAID TO HER DESCENDANTS.  IF EITHER
DAUGHTER DIED WITHOUT LEAVING SURVIVING DESCENDANTS, THE CORPUS OF HER
SHARE WAS TO BE ADDED TO THE SHARE OF THE OTHER DAUGHTER OR OF THE
SURVIVING DESCENDANTS OF THE OTHER DAUGHTER.  BUT IF BOTH DAUGHTERS
DIED WITHOUT LEAVING SURVIVING DESCENDANTS, THE CORPUS WAS TO BE PAID
TO SUCH PERSONS AS THE SETTLOR MIGHT APPOINT BY WILL.  IN DEFAULT OF
SUCH APPOINTMENT, THE CORPUS WAS TO GO TO CERTAIN NAMED CHARITIES. 

THE DECEDENT EXERCISED THE POWER OF APPOINTMENT IN A WILL MADE IN
1930.  SHE DIED IN 1934 AT THE AGE OF 51, LEAVING TWO UNMARRIED
DAUGHTERS.  THE LATTER HAVE SUBSEQUENTLY MARRIED AND BOTH HAVE
CHILDREN. 

THE COMMISSIONER DETERMINED THAT THIS ARRANGEMENT WAS A TRANSFER IN
TRUST INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER
DEATH WITHIN THE MEANING OF SEC. 302(C) OF THE REVENUE ACT OF 1926, 44
STAT. 9, 70, AND THAT THE NET VALUE OF ALL THE PROPERTY COMPRISING THE
CORPUS OF THE TRUST SHOULD BE INCLUDED IN THE DECEDENT'S GROSS ESTATE
FOR ESTATE TAX PURPOSES.  THE EXECUTORS, HOWEVER, DENIED THAT THE
TRANSFER FELL WITHIN THE MEANING OF SEC. 302(C); THEY FURTHER CLAIMED
THAT EVEN IF SEC. 302(C) DID APPLY THE VALUE OF THE LIFE ESTATES OF THE
SETTLOR'S DAUGHTERS AND THE VALUE OF THE REMAINDERS TO THEIR SURVIVING
DESCENDANTS SHOULD BE DEDUCTED FROM THE VALUE OF THE TRUST ASSETS FOR
TAX PURPOSES. 

THE EXECUTORS PAID A TAX ON THE FULL VALUE OF THE TRUST ASSETS AND
FILED THIS CLAIM FOR REFUND OF THE TAX.  THE DISTRICT COURT DENIED
RECOVERY AND THE COURT BELOW AFFIRMED.  142 F.2D 838.  CONFLICT WITH
FIELD'S ESTATE V. COMMISSIONER, 144 F.2D 62, LED US TO GRANT CERTIORARI
LIMITED TO THE QUESTION OF WHETHER THE ENTIRE VALUE OF THE CORPUS OF
THE TRUST AT THE TIME OF DECEDENT'S DEATH SHOULD HAVE BEEN INCLUDED IN
THE DECEDENT'S GROSS ESTATE. 

THE COURTS BELOW, UTILIZING THE PRINCIPLES SET FORTH IN KLEIN V.
UNITED STATES, 283 U.S. 231, AND HELVERING V. HALLOCK, 309 U.S. 106,
CORRECTLY HELD THAT THE DECEDENT'S TRANSFER IN TRUST IN 1928 WAS ONE
INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER DEATH
WITHIN THE MEANING OF SEC. 302(C) OF THE REVENUE ACT OF 1926, PRIOR TO
THE AMENDMENTS OF 1931 AND 1932.  WHILE THE MATTER OF VALUATION WAS NOT
ARGUED AND WAS NOT DIRECTLY IN ISSUE IN THOSE CASES, THE INESCAPABLE
CONSEQUENCE OF THE PRINCIPLES ENUNCIATED THERE AND IN THE DISSENTING
OPINION IN HELVERING V. ST. LOUIS UNION TRUST CO., 296 U.S. 39, 46, IS
TO INCLUDE THE ENTIRE TRUST CORPUS IN THE GROSS ESTATE OF THE DECEDENT
UNDER THESE CIRCUMSTANCES. 

ESTATE OF PROPERTY "TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE
DECEDENT HAS AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, IN
CONTEMPLATION OF OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT
AT OR AFTER HIS DEATH."  AS WE SAID IN HELVERING V. HALLOCK, SUPRA,
110, 111, THIS PROVISION "DEALS WITH PROPERTY NOT TECHNICALLY PASSING
AT DEATH BUT WITH INTERESTS THERETOFORE CREATED.  THE TAXABLE EVENT IS
A TRANSFER INTER VIVOS.  BUT THE MEASURE OF THE TAX IS THE VALUE OF THE
TRANSFERRED PROPERTY AT THE TIME WHEN DEATH BRINGS IT INTO ENJOYMENT." 
CF. REINECKE V. NORTHERN TRUST CO., 278 U.S. 339, 347.  THE TAXABLE
GROSS ESTATE, IN OTHER WORDS, MUST INCLUDE THOSE PROPERTY INTERESTS THE
ULTIMATE POSSESSION OR ENJOYMENT OF WHICH IS HELD IN SUSPENSE UNTIL THE
MOMENT OF THE GRANTOR'S DEATH OR THEREAFTER. 

TESTED BY THAT STANDARD, THE ENTIRE CORPUS OF THE TRUST SHOULD HAVE
BEEN INCLUDED IN THE DECEDENT'S GROSS ESTATE AND AN ESTATE TAX LEVIED
ON ITS NET VALUE AT THE DATE OF DECEDENT'S DEATH.  THE ULTIMATE
DISPOSITION OF ALL THE TRUST PROPERTY WAS SUSPENDED DURING THE LIFE OF
THE DECEDENT.  ONLY AT OR AFTER HER DEATH WAS IT CERTAIN WHETHER THE
PROPERTY WOULD BE DISTRIBUTED UNDER THE POWER OF APPOINTMENT OR AS
PROVIDED IN THE TRUST INSTRUMENT.  THE LIFE ESTATES OF THE DAUGHTERS
WERE CONTINGENT UPON THEIR SURVIVING THEIR MOTHER AND TOOK EFFECT IN
ENJOYMENT ONLY AT THE DEATH OF THE LATTER.  THE REMAINDER INTERESTS OF
THE DESCENDANTS OF THE DAUGHTERS WERE CONTINGENT UPON THEIR SURVIVING
BOTH THE DECEDENT AND THE DAUGHTERS AND TOOK EFFECT IN POSSESSION ONLY
AFTER THE DEATH OF THE DECEDENT.  THUS UNTIL THE MOMENT OF HER DEATH OR
UNTIL AN UNDETERMINED TIME THEREAFTER THE DECEDENT HELD A STRING OR
CONTINGENT POWER OF APPOINTMENT OVER THE TOTAL CORPUS OF THE TRUST. 
THE RETENTION OF SUCH A STRING, WHICH MIGHT HAVE RESULTED IN ALTERING
COMPLETELY THE PLAN CONTEMPLATED BY THE TRUST INSTRUMENT FOR THE
TRANSMISSION OF DECEDENT'S PROPERTY, SUBJECTED THE VALUE OF THE ENTIRE
CORPUS TO ESTATE TAX LIABILITY. 

IT IS FRUITLESS TO SPECULATE ON THE PROBABILITIES OF THE PROPERTY
BEING DISTRIBUTED UNDER THE CONTINGENT POWER OF APPOINTMENT.  INDEED,
SUCH SPECULATION IS IRRELEVANT TO THE MEASUREMENT OF ESTATE TAX
LIABILITY.  THE APPLICATION OF THIS TAX DOES NOT DEPEND UPON "ELUSIVE
AND SUBTLE CASUISTRIES."  HELVERING V. HALLOCK, SUPRA, 118.  NO MORE
SHOULD THE MEASURE OF THE TAX DEPEND UPON CONJECTURES AS TO THE
PROPINQUITY OR CERTAINTY OF THE DECEDENT'S REVERSIONARY INTERESTS.  IT
IS ENOUGH IF HE RETAINS SOME CONTINGENT INTEREST IN THE PROPERTY UNTIL
HIS DEATH OR THEREAFTER, DELAYING UNTIL THEN THE RIPENING OF FULL
DOMINION OVER THE PROPERTY BY THE BENEFICIARIES.  THE VALUE OF THE
PROPERTY SUBJECT TO THE CONTINGENCY, RATHER THAN THE ACTUARIAL OR
THEORETICAL VALUE OF THE POSSIBILITY OF THE OCCURRENCE OF THE
CONTINGENCY, IS THE MEASURE OF THE TAX.  THAT VALUE IS DEMONSTRATED BY
THE CONSEQUENCES THAT WOULD FLOW IN THIS INSTANCE FROM THE DECEDENT'S
SURVIVAL OF HER DAUGHTERS AND ANY OF THE LATTER'S SURVIVING
DESCENDANTS. 

WE ARE NOT CONCERNED HERE WITH DETERMINING WHETHER THE VALUES OF ANY
PROPERTY INTERESTS OR INTERVENING ESTATES NOT AFFECTED BY THE
DECEDENT'S DEATH AND NOT SUBJECT TO THE CONTINGENT POWER OF APPOINTMENT
SHOULD BE DEDUCTED FROM THE VALUE OF THE CORPUS.  THE VALUE OF THE LIFE
ESTATE RETAINED BY THE DECEDENT OBVIOUSLY CANNOT BE DEDUCTED.  AND THE
LIFE ESTATES OF THE DAUGHTERS AND THE REMAINDER INTERESTS OF THEIR
SURVIVING DESCENDANTS WERE ALL SUBJECT TO DIVESTMENT BY THE CONTINGENT
POWER OF APPOINTMENT AND WERE FREED FROM THIS CONTINGENCY ONLY AT OR
AFTER THE DECEDENT'S DEATH.  THERE IS THUS NO BASIS FOR DEDUCTING THEIR
VALUES AS SUGGESTED BY PETITIONERS.  AFFIRMED. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE DISTRICT COURT FOUND THAT THIS TRUST WAS "INTENDED TO TAKE EFFECT
IN POSSESSION OR ENJOYMENT AT OR AFTER" THE DEATH OF THE DECEDENT.  THE
CIRCUIT COURT OF APPEALS AGREED.  CERTIORARI WAS NOT GRANTED ON THAT
QUESTION BUT ONLY ON THE QUESTION WHETHER THE ENTIRE VALUE OF THE
CORPUS OF THE TRUST AT THE TIME OF DECEDENT'S DEATH SHOULD BE INCLUDED
IN HER GROSS ESTATE.  SO IN THIS CASE, AS IN COMMISSIONER V. ESTATE OF
FIELD, POST, P. 113, WE ARE NOT FACED WITH THE QUESTION WHETHER MAY V.
HEINER, 281 U.S. 238, SHOULD SURVIVE HELVERING V. HALLOCK, 309 U.S.
106.  ON THE FINDINGS OF THE DISTRICT COURT, IT IS PLAIN THAT THE
ENTIRE CORPUS MUST BE INCLUDED IN DECEDENT'S GROSS ESTATE BY VIRTUE OF
SEC. 302(C) OF THE 1926 ACT UNLESS THE VALUE OF THE LIFE ESTATE MUST BE
DEDUCTED.  THE VALUE OF THE LIFE ESTATE DEDUCTED IN THE HALLOCK CASE
WAS THE LIFE ESTATE IN THE SETTLOR'S WIFE.  IT WAS EXCLUDED BECAUSE IT
TOOK EFFECT IN POSSESSION OR ENJOYMENT WHEN THE TRUST WAS CREATED.  THE
LIFE ESTATE WHICH THE DECEDENT RESERVED TO HERSELF IS OBVIOUSLY IN A
DIFFERENT CATEGORY.  IT IS NOT AN "OUTSTANDING LIFE ESTATE" WITHIN THE
MEANING OF TREASURY REGULATIONS 80, ART. 17. 

I WOULD REST THE DECISION THERE AND RESERVE JUDGMENT ON THE OTHER
QUESTIONS ADVERTED TO IN THE OPINION OF THE COURT. 
..END :




COMMISSIONER V. ESTATE OF FIELD, 324 U.S. 113 


NO. 578.  ARGUED JANUARY 5, 1945.  - DECIDED FEBRUARY 5, 1945.  - 144
F.2D 62, REVERSED. 


1.  DECEDENT MADE A TRANSFER OF PROPERTY IN TRUST LIMITED IN DURATION
TO THE LIVES OF TWO NIECES.  IF DECEDENT SURVIVED BOTH NIECES THE
CORPUS WAS TO GO TO THE DECEDENT RATHER THAN TO THE BENEFICIARIES NAMED
IN THE TRUST INSTRUMENT.  THE NIECES SURVIVED THE DECEDENT.  HELD THAT,
UNDER SEC. 302(C) OF THE REVENUE ACT OF 1926, THE VALUE OF THE ENTIRE
CORPUS OF THE TRUST PROPERTY AT THE DEATH OF THE DECEDENT WAS
INCLUDIBLE IN THE GROSS ESTATE FOR THE PURPOSE OF THE FEDERAL ESTATE
TAX.  FIDELITY-PHILADELPHIA TRUST CO. V. ROTHENSIES, ANTE, P. 108.  P.
115. 

2. SINCE THE CORPUS OF THE TRUST DID NOT SHED THE POSSIBILITY OF
REVERSION UNTIL THE DECEDENT'S DEATH, THE VALUE OF THE ENTIRE CORPUS ON
THE DATE OF DEATH WAS TAXABLE UNDER SEC. 302(C).  P. 116. 

COMMISSIONER OF INTERNAL REVENUE V. ESTATE OF FIELD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 704, TO REVIEW THE REVERSAL OF A DECISION OF THE
TAX COURT, 2 T.C. 21, WHICH SUSTAINED THE COMMISSIONER'S DETERMINATION
OF A DEFICIENCY IN ESTATE TAXES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO FIDELITY-PHILADELPHIA TRUST CO. V.
ROTHENSIES, ANTE, P. 108.  IT TOO PRESENTS A QUESTION AS TO THE PROPER
VALUATION OF THE CORPUS OF AN INTER VIVOS TRUST UNDER SEC. 302(C) OF
THE REVENUE ACT OF 1926, 44 STAT. 9, 70. 

ON JUNE 8, 1922, THE DECEDENT TRANSFERRED TO A TRUSTEE CERTAIN ASSETS
VALUED AT THE DATE OF HIS DEATH AT THE SUM OF $157,452.82.  THE
MATERIAL PORTIONS OF THE TRUST PROVIDED: 

1.  THE TRUST WAS TO CONTINUE FOR THE JOINT LIVES OF TWO NIECES AND
THE LIFE OF THE SURVIVOR OF THEM UNLESS TERMINATED EARLIER UNDER 4,
INFRA. 

2. THE INCOME WAS TO BE PAID TO THE DECEDENT FOR HIS LIFE UNLESS THE
TRUST TERMINATED BEFORE HIS DEATH. 

3.  IF THE DECEDENT DIED PRIOR TO THE TERMINATION OF THE TRUST
LEAVING ISSUE, THE TRUST PROPERTY WAS TO BE HELD IN TRUST FOR THE
CHILDREN OR THEIR ISSUE, SUBJECT TO DECEDENT'S RIGHT TO REDUCE OR
CANCEL THE AMOUNTS OF THE GIFTS BY WILL OR WRITTEN INSTRUMENT. 
PROVISIONS WERE ALSO MADE FOR A $150,000 TRUST FOR THE WIDOW WHICH IS
NOT IN ISSUE IN THIS CASE. 

4.  DURING THE CONTINUANCE OF THE TRUSTS THE INCOME WAS TO BE PAID TO
THE BENEFICIARY NAMED AND UPON THE DEATH OF THE BENEFICIARY DURING THE
CONTINUANCE OF THE TRUST THE CORPUS WAS TO BE PAID TO THE BENEFICIARY'S
ISSUE SURVIVING, BUT IF THERE BE NONE, TO THE ISSUE OF THE DECEDENT
SURVIVING; IF NONE, THEN TO DECEDENT'S BROTHER OR SISTER OR THEIR
ISSUE. 

5.  UPON TERMINATION OF THE TRUST BEFORE THE DEATH OF THE DECEDENT
THE CORPUS WAS TO BE PAID OVER TO DECEDENT. 

6.  UPON TERMINATION OF THE TRUST AFTER THE DEATH OF THE DECEDENT BUT
DURING THE EXISTENCE OF ANY TRUST THE CORPUS WAS TO BE PAID TO THE LIFE
BENEFICIARY. 

THE DECEDENT AT NO TIME HAD ANY ISSUE.  AT HIS DEATH IN 1937 AT THE
AGE OF 52, HE WAS SURVIVED BY THE TWO NIECES WHOSE LIVES WERE TO
MEASURE THE MAXIMUM LIFE OF THE TRUST.  THESE NIECES WERE THEN AGED 18
AND 25 RESPECTIVELY.  HE WAS ALSO SURVIVED BY HIS WIDOW, A SISTER AND
ISSUE OF A DECEASED BROTHER. 

THE TAX COURT HELD THAT THE ENTIRE AMOUNT OF $157,452.82 WAS
INCLUDABLE IN THE GROSS ESTATE FOR PURPOSES OF THE ESTATE TAX.  2 T.C.
21.  BUT THE COURT BELOW REVERSED AND REMANDED THE CASE TO THE TAX
COURT WITH DIRECTIONS TO INCLUDE IN THE GROSS ESTATE ONLY $24,930.76 -
THE VALUE AT THE TIME OF DECEDENT'S DEATH OF A REMAINDER IN THE SUM OF
$157,452.82 PAYABLE AT ALL EVENTS UPON THE DEATH OF THE SURVIVOR OF TWO
FEMALES, AGED 18 AND 25 RESPECTIVELY.  144 F.2D 62. 

THE ERROR OF THE COURT BELOW IS SELF-EVIDENT FROM OUR DISCUSSION IN
THE FIDELITY-PHILADELPHIA TRUST CO. CASE.  THE TRUST HERE WAS LIMITED
IN DURATION TO THE LIVES OF THE DECEDENT'S TWO NIECES.  BUT IF BOTH
NIECES DIED BEFORE THE DECEDENT, THE CORPUS WOULD HAVE BEEN PAID TO THE
DECEDENT RATHER THAN TO THE BENEFICIARIES NAMED IN THE TRUST INSTRUMENT
(IN THIS INSTANCE THE DECEDENT'S SISTER AND THE ISSUE OF HIS DECEASED
BROTHER).  THUS UNTIL DECEDENT'S DEATH IT WAS UNCERTAIN WHETHER ANY OF
THE CORPUS WOULD PASS TO THE BENEFICIARIES OR WHETHER IT WOULD REVERT
TO THE DECEDENT.  DECEDENT RETAINING A STRING ATTACHED TO ALL THE
PROPERTY UNTIL DEATH SEVERED IT, THE ENTIRE CORPUS WAS SWEPT INTO THE
GROSS ESTATE AND WAS TAXABLE ACCORDINGLY. 

THERE IS NO BASIS EVIDENT FOR DEDUCTING THE VALUE OF THE CORPUS FOR
THE PERIOD OF THE LIFE EXPECTANCIES OF THE TWO MEASURING LIVES, AS WAS
DONE BY THE COURT BELOW.  THE ESTATE TAX IS NOT BASED ON THE VALUE OF
THE REVERSIONARY INTEREST OF THE DECEDENT AT THE TIME OF HIS DEATH BUT
ON THE VALUE AT THE TIME OF HIS DEATH OF THE PROPERTY TO WHICH THAT
REVERSIONARY INTEREST RELATES.  IT MAKES NO DIFFERENCE HOW VESTED MAY
BE THE REMAINDER INTERESTS IN THE CORPUS OR HOW REMOTE OR UNCERTAIN MAY
BE THE DECEDENT'S REVERSIONARY INTEREST.  IF THE CORPUS DOES NOT SHED
THE POSSIBILITY OF REVERSION UNTIL AT OR AFTER THE DECEDENT'S DEATH,
THE VALUE OF THE ENTIRE CORPUS ON THE DATE OF DEATH IS TAXABLE. 
REVERSED. 

MR. JUSTICE DOUGLAS, CONCURRING. 

IF THE TRUST GAVE A LIFE ESTATE TO THE DECEDENT AND THE REMAINDER TO
HIS CHILDREN, SEC. 302(C) OF THE 1926 ACT WOULD NOT REQUIRE THE PAYMENT
OF A TAX UNDER THE RULE OF MAY V. HEINER, 281 U.S. 238; BURNET V.
NORTHERN TRUST CO., 283 U.S. 782; MCCORMICK V. BURNET, 283 U.S. 784;
AND HASSETT V. WELCH, 303 U.S. 303.  THE THEORY OF MAY V. HEINER WAS
THAT UNDER THOSE CIRCUMSTANCES NO INTEREST IN THE PROPERTY PASSED FROM
THE GRANTOR TO THE REMAINDERMAN ON THE GRANTOR'S DEATH, SINCE THE TITLE
OF THE REMAINDERMAN HAD BEEN DEFINITELY FIXED BY THE TRUST DEED.  WE
NEED NOT DETERMINE WHETHER THE RULE OF MAY V. HEINER SHOULD SURVIVE
HELVERING V. HALLOCK, 309 U.S. 106.  SEE PAUL, FEDERAL ESTATE & GIFT
TAXATION (1942) SEC. 7.15.  FOR IN THIS CASE THE GRANTOR RETAINED THE
RIGHT TO REDUCE OR CANCEL BY WILL OR WRITTEN INSTRUMENT THE INTERESTS
OF THE CHILDREN; AND THE CORPUS WOULD HAVE BEEN RETURNED TO THE GRANTOR
IF HE SURVIVED HIS NIECES.  HENCE IT SEEMS PLAIN THAT THE GIFTS OVER
WOULD TAKE EFFECT IN POSSESSION OR ENJOYMENT ONLY AT OR AFTER THE DEATH
OF THE GRANTOR. 
..END :

















HERB V. PITCAIRN, 324 U.S. 117 


ARGUED OCTOBER 17, 18, 1944.  - DECIDED FEBRUARY 5, 1945.  - 384 ILL.
237, 281, 51 N.E.2D 277, 282, CONSIDERED. 


THE RECORDS IN THESE CASES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
BEING AMBIGUOUS AS TO WHETHER THE STATE COURT JUDGMENTS OF DISMISSAL
REST ON A FEDERAL GROUND OR ON AN ADEQUATE STATE GROUND, IT IS
APPROPRIATE IN THE CIRCUMSTANCES THAT THE CAUSES BE CONTINUED FOR SUCH
PERIOD AS WILL ENABLE COUNSEL FOR PETITIONERS WITH ALL CONVENIENT SPEED
TO APPLY TO THE STATE COURT FOR AMENDMENT, OR CERTIFICATE, WHICH WILL
SHOW WHETHER THAT COURT INTENDED TO REST THE JUDGMENTS ON AN ADEQUATE
AND INDEPENDENT STATE GROUND OR WHETHER DECISION OF THE FEDERAL
QUESTION WAS NECESSARY TO THE JUDGMENTS RENDERED.  P. 128. 

HERB V. PITCAIRN ET AL., RECEIVERS FOR WABASH RAILWAY CO. 

NO. 24.  CERTIORARI TO THE SUPREME COURT OF ILLINOIS.* 

*TOGETHER WITH NO. 25, BELCHER V. LOUISVILLE & NASHVILLE RAILROAD
CO., ALSO ON CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

CERTIORARI, 321 U.S. 759, TO REVIEW JUDGMENTS AFFIRMING DISMISSALS OF
TWO SUITS UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

EACH OF THESE PETITIONERS HAS MADE AN ABORTIVE ATTEMPT TO MAINTAIN AN
ACTION IN A CITY COURT OF ILLINOIS ON A CAUSE OF ACTION ALLEGED UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT.  AS THEIR CALLS UPON US FOR
RELIEF PRESENT THE SAME QUESTIONS, IN GRANTING CERTIORARI WE
CONSOLIDATED THE CASES FOR ARGUMENT.  321 U.S. 759. 

HERB ALLEGED INJURY WHILE EMPLOYED AS A SWITCHMAN ON THE WABASH
RAILROAD AT OR NEAR THE CITY OF DECATUR, MASON COUNTY, ILLINOIS, ON
NOVEMBER 23, 1936.  HE FILED COMPLAINT UNDER THE FEDERAL ACT IN THE
CITY COURT OF GRANITE CITY, MADISON COUNTY, ILLINOIS, IN DECEMBER OF
1937.  A VERDICT OF $30,000 WAS RETURNED, WHICH THE TRIAL COURT SET
ASIDE.  FURTHER PROCEEDINGS IN THE APPELLATE COURT AND THE SUPREME
COURT RESULTED IN REMAND TO THE CITY COURT.  377 ILL. 405, 36 N.E.2D
555.  ON MARCH 16, 1942, IN OTHER CASES, THE SUPREME COURT OF ILLINOIS
DECIDED THAT, UNDER THE ILLINOIS CONSTITUTION, A CITY COURT IS WITHOUT
JURISDICTION IN ANY CASE WHERE THE CAUSE OF ACTION AROSE OUTSIDE THE
CITY WHERE THE COURT IS LOCATED.  WERNER V. ILLINOIS CENTRAL R. CO.,
379 ILL. 559, 42 N.E.2D 82; MITCHELL V. L. & N.R. CO., 379 ILL. 522, 42
N.E.2D 86.  WHEN THESE DECISIONS WERE RENDERED, PLAINTIFF MOVED IN THE
CITY COURT FOR A CHANGE OF VENUE, UNDER THE ILLINOIS VENUE STATUTE, TO
THE CIRCUIT COURT OF MADISON COUNTY, A COURT OF GENERAL JURISDICTION. 
MEANWHILE THE TWO-YEAR PERIOD WITHIN WHICH AN ACTION COULD BE
INSTITUTED UNDER THE EMPLOYERS' LIABILITY ACT HAD LONG EXPIRED.  THE
MOTION FOR CHANGE OF VENUE WAS GRANTED AND THE PAPERS CERTIFIED AND
TRANSFERRED ACCORDINGLY.  THE DEFENDANT, LIMITING APPEARANCE FOR THE
SOLE AND ONLY PURPOSE OF THE MOTION, MOVED, IN THE CIRCUIT COURT, TO
DISMISS ON THE GROUNDS THAT THE CITY COURT HAD NO JURISDICTION EITHER
TO ENTERTAIN OR TO TRANSFER THE CASE; THAT, SINCE ALL PROCEEDINGS
THERETOFORE WERE UTTERLY VOID, NO ACTION WAS PENDING OR PROPERLY
COMMENCED BY THE CITY COURT PROCESS, NOR BY THE TRANSFER; THAT, SINCE
NO ACTION HAD BEEN COMMENCED IN A COURT OF COMPETENT JURISDICTION, ANY
RIGHT UNDER THE FEDERAL ACT HAD EXPIRED BY ITS LIMITATION, WHICH
PROVIDED THAT "NO ACTION SHALL BE MAINTAINED UNDER THIS ACT UNLESS
COMMENCED WITHIN TWO YEARS FROM THE DAY THE CAUSE OF ACTION ACCRUED." 
35 STAT. 66, 45 U.S.C. SEC. 56.  FN1  THE CIRCUIT COURT GRANTED THE
MOTION TO DISMISS AND THE SUPREME COURT OF ILLINOIS AFFIRMED.  384 ILL.
237, 51 N.E.2D 277.  ITS AFFIRMANCE IS HERE CLAIMED TO INVOLVE A
FEDERAL QUESTION, ERRONEOUSLY DECIDED. 

BELCHER ALLEGED THAT HE WAS A SWITCHMAN ON THE LOUISVILLE & NASHVILLE
RAILROAD IN ITS YARDS AT NASHVILLE, TENNESSEE, WHERE HE WAS INJURED ON
FEBRUARY 15, 1939.  HE FILED HIS COMPLAINT ON JUNE 22, 1940, IN THE
CITY COURT OF EAST ST. LOUIS, ILLINOIS.  THE ANSWER JOINED ISSUE
GENERALLY AND PLEADED A RELEASE AND SATISFACTION.  REPLY ADMITTED
EXECUTION IN NASHVILLE, TENNESSEE, OF THE DOCUMENT WHICH DEFENDANT
PLEADED, BUT SET UP FACTS IN AVOIDANCE.  ON TRIAL A VERDICT OF $20,000
WAS RETURNED.  THE TRIAL COURT SET IT ASIDE, HOLDING THAT THE EVIDENCE
DID NOT WARRANT THE VERDICT.  THIS WAS ON SEPTEMBER 18, 1941, AND AT
THIS STAGE OF THE LITIGATION THE SUPREME COURT OF ILLINOIS HANDED DOWN
ITS DECISIONS OF MARCH 16, 1942 HOLDING CITY COURTS WITHOUT
JURISDICTION OF CAUSES ARISING OUTSIDE THEIR TERRITORIAL JURISDICTION. 
THE PLAINTIFF MOVED IN CITY COURT THAT VENUE BE CHANGED TO CIRCUIT
COURT OF ST. CLAIR COUNTY, ILLINOIS, AND THE MOTION WAS GRANTED.  THE
STATUTE OF LIMITATIONS ON THE COMMENCEMENT OF THE ACTION AT THIS TIME
HAD RUN.  DEFENDANT MADE APPEARANCE LIMITED TO THE PURPOSE OF MOVING TO
DISMISS.  THE CASE WAS DISMISSED BY THE CIRCUIT COURT, AND THE
DISMISSAL WAS SUSTAINED BY THE SUPREME COURT OF ILLINOIS, IN AN OPINION
WHICH ADOPTED THE OPINION IN THE COMPANION CASE.  384 ILL. 281, 51
N.E.2D 282. 

FIRST.  WHETHER ANY CASE IS PENDING IN THE ILLINOIS COURTS IS A
QUESTION TO BE DETERMINED BY ILLINOIS LAW, AS INTERPRETED BY THE
ILLINOIS SUPREME COURT.  FOR AS WE HAVE SAID OF THE FEDERAL EMPLOYERS'
LIABILITY ACT, "WE DEEM IT WELL TO OBSERVE THAT THERE IS NOT HERE
INVOLVED ANY ATTEMPT BY CONGRESS TO ENLARGE OR REGULATE THE
JURISDICTION OF STATE COURTS OR TO CONTROL OR AFFECT THEIR MODES OF
PROCEDURE, BUT ONLY A QUESTION OF THE DUTY OF SUCH A COURT, WHEN ITS
ORDINARY JURISDICTION AS PRESCRIBED BY LOCAL LAWS IS APPROPRIATE TO THE
OCCASION AND IS INVOKED IN CONFORMITY WITH THOSE LAWS, TO TAKE
COGNIZANCE OF AN ACTION TO ENFORCE A RIGHT OF CIVIL RECOVERY ARISING
UNDER THE ACT OF CONGRESS AND SUSCEPTIBLE OF ADJUDICATION ACCORDING TO
THE PREVAILING RULES OF PROCEDURE."  MONDOU V. NEW YORK, N.H. & H.R.
CO., 223 U.S. 1, 56-57.  "AS TO THE GRANT OF JURISDICTION IN THE
EMPLOYERS' LIABILITY ACT, THAT STATUTE DOES NOT PURPORT TO REQUIRE
STATE COURTS TO ENTERTAIN SUITS ARISING UNDER IT, BUT ONLY TO EMPOWER
THEM TO DO SO, SO FAR AS THE AUTHORITY OF THE UNITED STATES IS
CONCERNED....  BUT THERE IS NOTHING IN THE ACT OF CONGRESS THAT
PURPORTS TO FORCE A DUTY UPON SUCH COURTS AS AGAINST AN OTHERWISE VALID
EXCUSE."  DOUGLAS V. NEW YORK, N.H. & H.R. CO., 279 U.S. 377, 387-88. 
AND SEE CHAMBERS V. BALTIMORE & OHIO R. CO., 207 U.S. 142, 148-49; ST.
LOUIS, I.M. & S.R. CO. V. TAYLOR, 210 U.S. 281; JOHN V. PAULLIN, 231
U.S. 583. 

THE PLIGHT OF PETITIONERS IS NOT DUE TO ANY FAILURE OF THE STATE OF
ILLINOIS TO PROVIDE FORUMS ADEQUATE FOR THE HEARING OF THEIR CASES
UNDER THE FEDERAL STATUTE.  THE STATE PROVIDES A SYSTEM OF CIRCUIT
COURTS SITTING IN EACH OF ITS COUNTIES WHICH HAVE GENERAL AND UNLIMITED
ORIGINAL JURISDICTION AT LAW AND IN EQUITY.  THESE WERE OPEN TO THE
PETITIONERS, BUT THEY CHOSE INSTEAD TO FILE THEIR COMPLAINTS IN CITY
COURTS.  IT WOULD NOT BE OPEN FOR US TO SAY THAT THE STATE IN SETTING
UP A LOCAL COURT COULD NOT LIMIT ITS JURISDICTION TO ACTIONS ARISING
WITHIN THE CITY FOR WHICH IT IS ESTABLISHED. 

WHEN THE SUPREME COURT HELD THESE COURTS WITHOUT JURISDICTION,
PLAINTIFFS MOVED IN CITY COURT UNDER THE ILLINOIS VENUE ACT (ILLINOIS
REVISED STATUTES, 1941, CH. 146, SEC. 36) TO CHANGE VENUE TO THE
CIRCUIT COURT.  THE CITY COURTS GRANTED THE MOTION AND TRANSFERRED THE
PAPERS TO THE CIRCUIT COURT.  THE DEFENDANTS WERE SERVED WITH NO
PROCESS ISSUING FROM THE CIRCUIT COURT, ENTERED NO GENERAL APPEARANCE
IN CIRCUIT COURT.  INSTEAD, APPEARING SPECIALLY, THEY MOVED TO
DISMISS.  IN EACH CASE THE MOTION WAS GROUNDED IN A COMPLETE ABSENCE OF
JURISDICTION IN THE CITY COURTS TO BEGIN, HEAR, OR TRANSFER THE CASE. 
EACH DEFENDANT DENIED THAT THE VENUE ACT GAVE ANY POWER TO THE CITY
COURT TO TRANSFER, AND EACH CLAIMED THAT IF IT DID, IT WOULD BE
UNCONSTITUTIONAL UNDER THE STATE CONSTITUTION.  BOTH ALSO ASSERTED THAT
THE FEDERAL STATUTE OF LIMITATIONS HAD RUN AT THE TIME OF PURPORTED
CHANGE OF VENUE BECAUSE NO SUIT HAD BEEN "COMMENCED" IN CITY COURT
WITHIN ITS MEANING. 

THE SUPREME COURT OF ILLINOIS DID NOT DECIDE WHETHER UNDER THE STATE
CONSTITUTION THE VENUE ACT WAS UNCONSTITUTIONAL, APPARENTLY BECAUSE IT
HELD THE ACT NOT TO APPLY.  IT POINTED OUT THAT "BOTH THE SUBJECT
MATTER AND THE PARTIES MUST BE BEFORE THE COURT, AND JURISDICTION OF
THE ONE WITHOUT THE OTHER WILL NOT SUFFICE; THE TWO MUST CONCUR OR THE
JUDGMENT WILL BE VOID IN ANY CASE IN WHICH THE COURT ASSUMES TO ACT." 
THE CIRCUIT COURT HAD SERVED NO SUMMONS ON DEFENDANTS, AND THEY MADE NO
GENERAL APPEARANCE THEREIN.  ON THE OTHER HAND, THE CITY COURT
ADMITTEDLY HAD NO JURISDICTION OF THE SUBJECT MATTER.  THE SUPREME
COURT USED LANGUAGE WHICH CAN MEAN THAT NO VALID PROCEEDING WAS PENDING
IN EITHER COURT AS A MATTER OF STATE LAW.  FN2  WE THINK THAT THE
SUPREME COURT PROBABLY HAS DECIDED THAT AS MATTER OF ILLINOIS LAW NO
ACTION IS PENDING AGAINST THESE DEFENDANTS IN ANY COURT AND THAT ALL OF
THE PROCEEDINGS HAVE BEEN OF NO EFFECT WHATEVER. 

THE FREEDOM OF THE STATE COURTS SO TO DECIDE IS, OF COURSE, SUBJECT
TO THE QUALIFICATION THAT THE CAUSE OF ACTION MUST NOT BE DISCRIMINATED
AGAINST BECAUSE IT IS A FEDERAL ONE.  MCKNETT V. ST. LOUIS & S.F.R.
CO., 292 U.S. 230.  BUT WE CANNOT SAY THAT THE COURT BELOW, IN SO FAR
AS IT DID HOLD THE CITY COURTS WITHOUT POWER, CONSTRUED THE STATE
JURISDICTION AND VENUE LAWS IN A DISCRIMINATORY FASHION.  IN CENTRAL
ILLINOIS PUBLIC SERVICE CO. V. INDUSTRIAL COMMISSION, 293 ILL. 62, 127
N.E. 80, AND GILL V. LYNCH, 367 ILL. 203, 10 N.E.2D 812, WHICH ARE
CITED TO US BY PETITIONERS, THE ILLINOIS COURT DID UPHOLD THE POWER OF
ONE COURT TO TRANSFER A CAUSE TO ANOTHER COURT FOR CERTAIN PURPOSES. 
ONE CASE, HOWEVER, INVOLVED A PROCEEDING BEGUN IN A CIRCUIT COURT, A
COURT OF GENERAL AND UNLIMITED JURISDICTION.  IT ISSUED A WRIT OF
CERTIORARI TO REVIEW A DECISION OF THE STATE COMPENSATION COMMISSION;
TRANSFER WAS MADE UNDER THE VENUE STATUTE TO ANOTHER CIRCUIT COURT
BECAUSE THE REVIEW STATUTE REQUIRED THE PROCEEDING TO BE IN A COUNTY
WHERE THE DEFENDANT RESIDED OR COULD BE FOUND.  IN THE OTHER CASE A
RECEIVERSHIP PROCEEDING WAS TRANSFERRED FROM COUNTY COURT TO THE
CIRCUIT COURT BECAUSE THE COUNTY COURT WAS WITHOUT EQUITABLE
JURISDICTION.  THUS NEITHER CASE INVOLVED THE JURISDICTION OF A CITY
COURT NOR THE APPLICATION OF THE VENUE STATUTES TO A CITY COURT. 
THEREFORE, THE CASES ARE TOO DISSIMILAR IN THEIR FACTS TO MAKE THIS ONE
APPEAR TO BE A DISCRIMINATION AGAINST A FEDERAL RIGHT WHETHER OR NOT
THEY ARE WHOLLY CONSISTENT WITH SOME OF THE LANGUAGE IN THE PRESENT
CASE.  AND THERE IS NO OTHER BASIS, IN THE OPINION OF THE COURT OR
ELSEWHERE, FOR THE INTIMATION THAT IF PETITIONERS' CASES HAD BEEN
BROUGHT UNDER STATE STATUTES OR COMMON LAW THEY WOULD NOT HAVE BEEN
DISMISSED UNDER THE SAME CIRCUMSTANCES AS THOSE HERE PRESENT. 

HAD THE SUPREME COURT RESTED UPON ITS OBSERVATIONS ABOUT THE
JURISDICTION OF ILLINOIS COURTS AND THE ADEQUACY OF THEIR PROCEDURES TO
BRING AN ACTION INTO EXISTENCE, WE SHOULD BE WITHOUT POWER TO DIRECT
THESE COURTS TO TRY CASES WHICH AS MATTER OF LOCAL LAW ARE NOT
PENDING.  BUT THE COURT DID NOT STOP AT THAT. 

SECOND.  THE CASE WENT TO THE SUPREME COURT OF ILLINOIS WITH A
CERTIFICATION BY THE CIRCUIT COURT THAT A FEDERAL QUESTION WAS
INVOLVED.  THE FEDERAL QUESTION, WHETHER THE ACTION WAS BARRED BY THE
FEDERAL STATUTE OF LIMITATIONS, WAS RAISED BY RESPONDENTS IN THEIR
MOTION TO DISMISS IN THE CIRCUIT COURT.  IN THE COURSE OF ITS OPINION
THE ILLINOIS SUPREME COURT USED LANGUAGE FROM WHICH IT SEEMS REASONABLY
CLEAR THAT THE QUESTION WAS DECIDED,  FN3  EITHER NECESSARILY, BECAUSE
THE COURT HAD NOT DISPOSED OF THE CASE ON STATE LAW GROUNDS, OR
HYPOTHETICALLY.  FOR PURPOSES OF PASSING ON THIS QUESTION THE COURT
SEEMS TO HAVE ASSUMED THAT AN ACTION IS PENDING UNDER STATE LAW; FOR
ONLY IF ONE IS PENDING IS THERE OCCASION TO CONSIDER WHETHER THE CAUSE
OF ACTION IS BARRED. 

PETITIONERS CONTEND THEREFORE THAT THE JUDGMENT BELOW DOES NOT REST
UPON A STATE GROUND BUT UPON AN ERRONEOUSLY DECIDED FEDERAL GROUND -
NAMELY, THAT EVEN THOUGH THE CITY COURT HAD POWER TO TRANSFER THE CASE,
THE ACTION IS BARRED BECAUSE NOT "COMMENCED" UNTIL IT ARRIVED IN
CIRCUIT COURT. 

THIRD.  THIS COURT FROM THE TIME OF ITS FOUNDATION HAS ADHERED TO THE
PRINCIPLE THAT IT WILL NOT REVIEW JUDGMENTS OF STATE COURTS THAT REST
ON ADEQUATE AND INDEPENDENT STATE GROUNDS.  MURDOCK V. MEMPHIS, 20
WALL.  590, 636; BEREA COLLEGE V. KENTUCKY, 211 U.S. 45, 53; ENTERPRISE
IRRIGATION DISTRICT V. FARMERS MUTUAL CANAL CO., 243 U.S. 157, 164; FOX
FILM CORP. V. MULLER, 296 U.S. 207.  THE REASON IS SO OBVIOUS THAT IT
HAS RARELY BEEN THOUGHT TO WARRANT STATEMENT.  IT IS FOUND IN THE
PARTITIONING OF POWER BETWEEN THE STATE AND FEDERAL JUDICIAL SYSTEMS
AND IN THE LIMITATIONS OF OUR OWN JURISDICTION.  OUR ONLY POWER OVER
STATE JUDGMENTS IS TO CORRECT THEM TO THE EXTENT THAT THEY INCORRECTLY
ADJUDGE FEDERAL RIGHTS.  AND OUR POWER IS TO CORRECT WRONG JUDGMENTS,
NOT TO REVISE OPINIONS.  WE ARE NOT PERMITTED TO RENDER AN ADVISORY
OPINION, AND IF THE SAME JUDGMENT WOULD BE RENDERED BY THE STATE COURT
AFTER WE CORRECTED ITS VIEWS OF FEDERAL LAWS, OUR REVIEW COULD AMOUNT
TO NOTHING MORE THAN AN ADVISORY OPINION.  IF THE ILLINOIS COURT MEANS
TO HOLD THAT THE CITY COURTS COULD NOT ADJUDGE, TRANSFER, OR BEGIN
THESE CASES AND THAT NO CASE IS PENDING IN ITS COURTS AT THE PRESENT
TIME, IT IS MANIFEST THAT NO VIEW WE MIGHT EXPRESS OF THE FEDERAL ACT
WOULD REQUIRE ITS COURTS TO PROCEED TO THE TRIAL OF THESE ACTIONS. 

BUT WHAT TO DO WITH CASES IN WHICH THE RECORD IS AMBIGUOUS BUT
PRESENTS REASONABLE GROUNDS TO BELIEVE THAT THE JUDGMENT MAY REST ON
DECISION OF A FEDERAL QUESTION HAS LONG VEXED THE COURT.  IN MANY CASES
THE ANSWER HAS BEEN A STRICT ADHERENCE TO THE RULE THAT IT MUST
AFFIRMATIVELY APPEAR THAT THE FEDERAL QUESTION WAS DECIDED AND THAT ITS
DECISION WAS ESSENTIAL TO DISPOSITION OF THE CASE; AND THAT WHERE IT IS
NOT CLEAR WHETHER THE JUDGMENT RESTS ON A FEDERAL GROUND OR AN ADEQUATE
STATE ONE, THIS COURT WILL NOT REVIEW.  KLINGER V. MISSOURI, 13 WALL. 
257, 263; DE SAUSSURE V. GAILLARD, 127 U.S. 216, 234; JOHNSON V. RISK,
137 U.S. 300, 307; WOOD MOWING MACHINE CO. V. SKINNER, 139 U.S. 293;
ADAMS V. RUSSELL, 229 U.S. 353, 358-61; LYNCH V. NEW YORK, 293 U.S.
52.    IN OTHER CASES WHERE JUSTICE SEEMED TO REQUIRE IT, FOR EXAMPLE
BECAUSE OF SUPERVENING EVENTS, THE COURT HAS SAID THAT TO SET ASIDE THE
JUDGMENT AND REMAND THE CASE TO THE STATE COURT FOR FURTHER
CONSIDERATION IS NOT TO REVIEW, IN ANY PROPER SENSE OF THE TERM, THE
DECISION OF THE STATE COURT.  PATTERSON V. ALABAMA, 294 U.S. 600, 607;
STATE TAX COMM'N V. VAN COTT, 306 U.S. 511, 515.  AND IN MINNESOTA V.
NATIONAL TEA CO., 309 U.S. 551, UNCERTAINTY AS TO THE GROUNDS OF THE
DECISION BELOW LED THE COURT TO VACATE AND REMAND FOR FURTHER
CONSIDERATION.  NATIONAL TEA CO. V. STATE, 205 MINN. 443, 286 N.W. 360;
208 MINN. 607, 294 N.W. 230.  IN LYNCH V. NEW YORK, 293 U.S. 52, THE
COURT STRONGLY INTIMATED THAT HAD PETITIONERS REQUESTED A CONTINUANCE
IN THIS COURT TO PERMIT AN APPLICATION TO THE STATE COURT FOR AMENDMENT
OR CLARIFICATION OF ITS REMITTITUR, THERE WOULD BE POWER AND
WILLINGNESS TO GRANT IT.  LATER, IN INTERNATIONAL STEEL & IRON CO. V.
NATIONAL SURETY CO., 297 U.S. 657, 662, THE RECORD FAILED TO DISCLOSE
THAT A FEDERAL QUESTION HAD BEEN PRESENTED OR DECIDED.  COUNSEL
REQUESTED AT THE BAR CONTINUANCE TO APPLY FOR AMPLIFICATION, AND IT WAS
GRANTED.  REARGUMENT WAS HAD IN THE STATE COURT UPON THE FEDERAL
QUESTION, THE COURT DID PASS ON IT, THE FURTHER PROCEEDINGS WERE
CERTIFIED, AND THIS COURT ASSERTED JURISDICTION AND PROCEEDED TO
DECISION.  THE PRACTICE HAS BECOME COMMON BY WHICH SOME STATE COURTS,
SUCH AS THE NEW YORK COURT OF APPEALS, PROVIDE COUNSEL ON MOTION WITH A
CERTIFICATE OF THE COURT OR OF THE CHIEF JUDGE THAT A STATED FEDERAL
QUESTION WAS PRESENTED AND NECESSARILY PASSED UPON IF SUCH WAS THE
CASE.  SEE, E.G., CASES CITED IN ROBERTSON AND KIRKHAM, JURISDICTION OF
THE SUPREME COURT, SEC. 75. 

IT IS NO CRITICISM OF A STATE COURT THAT WE ARE UNABLE TO SAY IN A
CASE WHERE BOTH STATE AND FEDERAL QUESTIONS ARE PRESENTED, DISCUSSED,
AND PERHAPS DECIDED, THAT THE JUDGMENT WOULD HAVE BEEN THE SAME HAD
ONLY ONE OF THE GROUNDS BEEN PRESENT.  THOSE COURTS MAY ADJUDICATE BOTH
KINDS OF QUESTIONS AND BECAUSE IT IS NOT NECESSARY TO THEIR FUNCTIONS
TO MAKE A SHARP SEPARATION OF THE TWO THEIR DISCUSSION IS OFTEN
INTERLACED.  BUT WE CANNOT PERFORM OUR DUTY TO REFRAIN FROM INTERFERING
IN STATE LAW QUESTIONS AND ALSO TO REVIEW FEDERAL ONES WITHOUT MAKING A
DETERMINATION WHETHER THE ONE OR THE OTHER CONTROLS THE JUDGMENT.  AND
IN CASES WHERE THE ANSWER IS NOT CLEAR TO US, IT SEEMS CONSISTENT WITH
THE RESPECT DUE THE HIGHEST COURTS OF STATES OF THE UNION THAT THEY BE
ASKED RATHER THAN TOLD WHAT THEY HAVE INTENDED.  IF THIS IMPOSES AN
UNWELCOME BURDEN IT SHOULD BE MITIGATED BY THE KNOWLEDGE THAT IT IS TO
PROTECT THEIR JURISDICTION FROM UNWITTING INTERFERENCE AS WELL AS TO
PROTECT OUR OWN FROM UNWITTING RENUNCIATION. 

IT IS OUR PURPOSE SCRUPULOUSLY TO OBSERVE THE LONG STANDING RULE THAT
WE WILL NOT REVIEW A JUDGMENT OF A STATE COURT THAT RESTS ON AN
ADEQUATE AND INDEPENDENT GROUND IN STATE LAW.  NOR WILL WE REVIEW ONE
UNTIL THE FACT THAT IT DOES NOT DO SO APPEARS OF RECORD.  BUT BECAUSE
WE WILL NOT PROCEED WITH A REVIEW WHILE OUR JURISDICTION IS CONJECTURAL
IT DOES NOT FOLLOW THAT WE SHOULD NOT TAKE STEPS TO PROTECT OUR
JURISDICTION WHEN WE ARE GIVEN REASONABLE GROUNDS TO BELIEVE IT
EXISTS.  WE THINK THE SIMPLEST PROCEDURE TO DO SO, WHERE THE RECORD IS
DEFICIENT, IS TO HOLD THE CASE PENDING APPLICATION TO THE STATE COURT
FOR CLARIFICATION OR AMENDMENT.  IT NEED NOT BE ELABORATE OR FORMAL IF
IT IS CLEAR AND DECISIVE IN STATING WHETHER A FEDERAL QUESTION, AND IF
SO, WHAT FEDERAL QUESTION, WAS DECIDED AS A NECESSARY GROUND FOR
REACHING THE JUDGMENT UNDER REVIEW.  IN PROPER CASES WE MAY GRANT
COUNSEL'S REQUEST FOR CONTINUANCE FOR THE PURPOSE.  IN PROPER CASES WE
WILL IMPOSE THE DUTY OF APPLYING FOR IT UPON PETITIONER OR APPELLANTS
UPON OUR OWN MOTION. 

THESE CAUSES ARE CONTINUED FOR SUCH PERIOD AS WILL ENABLE COUNSEL FOR
PETITIONERS WITH ALL CONVENIENT SPEED TO APPLY TO THE SUPREME COURT OF
ILLINOIS FOR AMENDMENT, OR CERTIFICATE, WHICH WILL SHOW WHETHER IT
INTENDED TO REST THE JUDGMENTS HEREIN ON AN ADEQUATE AND INDEPENDENT
STATE GROUND OR WHETHER DECISION OF THE FEDERAL QUESTION WAS NECESSARY
TO THE JUDGMENT RENDERED. 

FN1  AN AMENDMENT ADOPTED AFTER THE PRESENT CAUSES OF ACTION ACCRUED
EXTENDED THE LIMITATION PERIOD TO THREE YEARS, 53 STAT. 1404, BUT NO
QUESTION OF ITS APPLICABILITY IS RAISED AND, IN ANY EVENT, IN EACH CASE
THE TRANSFER TO THE CIRCUIT COURT WAS MADE MORE THAN THREE YEARS AFTER
THE CAUSE OF ACTION ACCRUED. 

FN2  "THE QUESTION INVOLVED RELATES TO THE EFFECT OF THE PROCEEDINGS
HAD IN A COURT WHOLLY INCOMPETENT TO RENDER A VALID JUDGMENT, BECAUSE
IF THE JUDGMENT TO BE RENDERED WOULD BE VOID IT NECESSARILY FOLLOWS THE
PRELIMINARY PROCEEDINGS OF THE COURT, NECESSARY TO RENDITION OF
JUDGMENT, MUST LIKEWISE BE VOID.  IF THE COURT HAS NO JURISDICTION OF
THE SUBJECT MATTER FOR JUDGMENT THERE CAN BE NO JURISDICTION GIVING
EFFECT TO PROCESS OR PLEADINGS. 

     .         .      .         .         . 

"THE FALLACY OF (PLAINTIFF'S) ARGUMENT RESTS IN THE FACT THAT IT
BECOMES NECESSARY TO GIVE VALIDITY TO PROCEEDINGS IN A COURT, THE
JUDGMENT OF WHICH, IF RENDERED UPON SUCH PROCEEDINGS, WOULD BE WHOLLY
VOID.  IF THE ULTIMATE OBJECT TO BE OBTAINED IN A SUIT AT LAW, VIZ., A
JUDGMENT, IS UTTERLY VOID, IT IS DIFFICULT TO UNDERSTAND HOW ANY OF THE
PRELIMINARIES TO SUCH A JUDGMENT, SUCH AS SUMMONS, PLEADINGS,
INTERLOCUTORY ORDERS AND THE LIKE HAVE ANY EFFECT, WHEN THE RESULT, HAD
SUCH PROCEEDING BEEN CONCLUDED IN THE FIRST COURT, WOULD HAVE BEEN A
NULLITY. 

     .         .         .         .         . 

"...  IF APPELLANT'S CONTENTION IS SUSTAINED, A VALID JUDGMENT COULD
BE OBTAINED BY TRANSFERRING THE CAUSE TO THE PROPER COURT UPON A
SUMMONS OR NOTICE THAT DEFENDANTS COULD SAFELY DISREGARD WHEN SERVED
UPON THEM.  THIS WOULD GIVE THE ORDER OF TRANSFER BY THE CITY COURT THE
EFFECT OF VITALIZING PROCESS THAT WAS VOID AND CONSIDERING A CASE
COMMENCED AND PENDING IN A PROPER COURT DURING A PERIOD WHEN, IN LEGAL
CONTEMPLATION, NO JUDICIAL CONTROL OF DEFENDANTS HAD YET BEEN
EXERCISED. 

   .         .         .         .         . 

"IT IS CLEAR A SUIT WAS NOT COMMENCED BY FILING THE PRESENT SUIT IN
THE CITY COURT OF GRANITE CITY, OR BY ISSUING SUMMONS OR FILING A
COMPLAINT.  LACKING REQUISITE JURISDICTION BECAUSE OF THE PROVISIONS OF
THE CONSTITUTION LIMITING IT TO CASES ARISING WITHIN THE LIMITS OF THE
CITY, SUCH COURT WAS WHOLLY INCOMPETENT TO RENDER ANY JUDGMENT OR TO
AUTHORIZE ANY PROCEEDINGS WHICH WOULD RESULT IN A JUDGMENT." 

FN3  "THE MATERIAL POINT FOR CONSIDERATION IS WHETHER THE PLAINTIFF
HAS COMMENCED AN ACTION WITHIN TWO YEARS OF THE DATE OF HIS INJURY IN A
COURT HAVING JURISDICTION TO HEAR AND DETERMINE THE SAME, AS REQUIRED
BY SECTION 6 OF THE FEDERAL EMPLOYERS' LIABILITY ACT  ... 

     .         .       .         .         . 

"...  WE OBSERVE RECOVERY UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
IS CONDITIONED UPON TWO THINGS:  (1) COMMENCING AN ACTION WITHIN TWO
YEARS FROM THE DATE OF THE INJURY; AND (2) COMMENCING SUCH ACTION IN A
COURT HAVING JURISDICTION TO HEAR AND DETERMINE THE SAME  ....  THE
PLAINTIFF HAVING PREDICATED HIS CASE UPON THE FEDERAL EMPLOYERS'
LIABILITY ACT MUST COMPLY WITH ITS PROVISIONS, BOTH WITH RESPECT TO THE
TIME OF COMMENCING THE SUIT AND OF BRINGING IT IN A COURT HAVING
JURISDICTION TO HEAR AND DETERMINE IT. 

     .     .         .         .         . 

"CONCEDING, BUT NOT DECIDING, THAT IN PROPER CASES A COURT WITHOUT
JURISDICTION OF THE SUBJECT MATTER COULD BY STATUTE BE AUTHORIZED TO
TRANSFER ITS PROCEEDINGS  ...  STILL THE CONDITION THAT THE ACTION BE
COMMENCED WITHIN TWO YEARS IS NOT MET  ...  SUCH STATUTES CANNOT
RECREATE A RIGHT GIVEN UNDER A FEDERAL STATUTE THAT HAS CEASED TO EXIST
BY THE TERMS OF THE (FEDERAL) STATUTE. 

     .   .         .         .         . 

"IN THIS CASE JURISDICTION OF THE SUIT WAS WHOLLY LACKING UNTIL JULY
31, 1942(IF WE CONSIDER THE CHANGE-OF-VENUE ACT VALID), AND AT THIS
TIME THE CONDITION IMPOSED UPON THE PLAINTIFF WITH RESPECT TO BRINGING
HIS SUIT HAD EXPIRED BY LAPSE OF TIME.  THIS DETERMINATION MAKES IT
UNNECESSARY TO PASS UPON EITHER THE CONSTITUTIONAL QUESTION INVOLVED OR
THE VALIDITY OF THE CHANGE-OF-VENUE STATUTE." 

IN THE BELCHER CASE THE COURT SAID: 

"UPON PARALLEL FACTS, HERB V. PITCAIRN,  ...  DECIDED THIS DAY, HOLDS
THAT AN ACTION IS NOT COMMENCED WITHIN TWO YEARS OF THE DATE OF INJURY
IN A COURT OF COMPETENT JURISDICTION, AS PRESCRIBED BY SECTION 6 OF THE
FEDERAL EMPLOYERS' LIABILITY ACT, BY TRANSFERRING THE CAUSE FROM A CITY
COURT HAVING NO JURISDICTION OF THE SUBJECT MATTER AT A DATE WHEN THE
ACTION, IF INSTITUTED ORIGINALLY ON SUCH DATE IN THE CIRCUIT COURT,
COULD NOT BE MAINTAINED BECAUSE NOT COMMENCED WITHIN THE STATUTORY
TIME.  OUR DISPOSITION OF THE IDENTICAL ISSUE IN HERB V. PITCAIRN IS
DECISIVE HERE." 

MR. JUSTICE BLACK, DISSENTING. 

FAR-REACHING IMPLICATIONS OF THE COURT'S ACTION IN BOTH THESE CASES
IMPEL ME TO STATE THE REASONS FOR MY DISAGREEMENT. 

IN NOVEMBER, 1936, HERB (THE PETITIONER IN NO. 24) LOST A LEG AND
SUFFERED OTHER SEVERE INJURIES.  HE COMMENCED AN ACTION AGAINST THE
RAILROAD IN AN ILLINOIS CITY COURT, WAS AWARDED A VERDICT, THE TRIAL
JUDGE ENTERED JUDGMENT FOR THE RAILROAD NOTWITHSTANDING THE VERDICT,
AND AN ILLINOIS INTERMEDIATE APPELLATE COURT REVERSED AND DIRECTED THAT
JUDGMENT BE ENTERED FOR HERB.  306 ILL. APP. 583, 29 N.E.2D 543.  THE
ILLINOIS SUPREME COURT REVERSED THE APPELLATE COURT'S JUDGMENT INSOFAR
AS IT HAD DIRECTED THAT A JUDGMENT BE ENTERED FOR HERB, AND REMANDED
THE CASE TO THE CITY COURT FOR THE TRIAL JUDGE TO PASS UPON A MOTION
FOR NEW TRIAL SHOULD ONE BE MADE.  377 ILL. 405, 36 N.E.2D 555. 
ALTHOUGH FIVE YEARS HAD ALREADY ELAPSED SINCE HERB'S INJURIES, HIS
EFFORTS TO SECURE A JUDICIAL DETERMINATION OF HIS RIGHTS UNDER FEDERAL
LAW HAD JUST BEGUN. 

APPARENTLY, AS THE LENGTHY HISTORY OF HERB'S CASE SHOWS, IT HAD LONG
BEEN ASSUMED BY THE COURTS AS WELL AS BY THE LEGAL PROFESSION, THAT
ILLINOIS CITY COURTS HAD JURISDICTION TO TRY RAILROAD EMPLOYEES' CASES
ARISING UNDER FEDERAL LAW.  BUT AFTER REMAND OF HIS CASE TO THE CITY
COURT, THE STATE SUPREME COURT HANDED DOWN OPINIONS IN TWO OTHER CASES
HOLDING THAT CITY COURTS DID NOT HAVE JURISDICTION TO HEAR AND
DETERMINE ACTIONS FOR INJURIES WHICH OCCURRED OUTSIDE THEIR TERRITORIAL
LIMITS.  FN1  IN VIEW OF THIS NEW OBSTACLE TO HIS ACTION, THE
PETITIONER THEN MOVED FOR A CHANGE OF VENUE TO THE CIRCUIT COURT, UNDER
AN ILLINOIS STATUTE AUTHORIZING TRANSFER FROM A "WRONG COURT OR COUNTY"
TO A "PROPER COURT OR COUNTY."  CH. 146, ILL. REV. STAT. 1941, PAR.
36.  THE MOTION WAS GRANTED, AND IN THE CIRCUIT COURT THE RAILROAD
MOVED TO DISMISS THE CAUSE ON THE GROUND THAT (1) ALL OF THE ORDERS OF
THE CITY COURT, INCLUDING THE CHANGE OF VENUE, WERE INVALID; (2) THE
STATUTE AUTHORIZING TRANSFER WAS UNCONSTITUTIONAL; (3) THE SUIT HAD NOT
BEEN "COMMENCED" WITHIN TWO YEARS AFTER THE DATE OF THE INJURY AS
REQUIRED BY SEC. 6 OF THE FEDERAL EMPLOYERS' LIABILITY ACT. 

THE MOTION TO DISMISS WAS SUSTAINED AND HERB APPEALED.  THE CIRCUIT
COURT JUDGE'S CERTIFICATION TO THE ILLINOIS SUPREME COURT RECITED THAT
THE JUDGMENT INVOLVED CONSTRUCTION OF THE ILLINOIS AND UNITED STATES
CONSTITUTIONS, THE VALIDITY OF AN ILLINOIS STATUTE, AND THE VALIDITY
AND CONSTRUCTION OF SEC. 6 OF THE FEDERAL EMPLOYERS' LIABILITY ACT. 

THE COURT BELOW IN THE VERY FIRST SENTENCE AFTER RECITING THE FACTS,
STATED THAT "THE MATERIAL POINT FOR CONSIDERATION" WAS WHETHER THE
REQUIREMENTS OF SEC. 6 OF THE FEDERAL EMPLOYERS' LIABILITY ACT HAD BEEN
MET.  THROUGHOUT ITS ENTIRE OPINION, THE COURT CONSTRUED SEC. 6 AND THE
CITY COURT'S JURISDICTION AS RELATED TO ITS CONSTRUCTION OF THAT
MET.  THEN, HAVING DECIDED THAT THE ACTION WAS NOT "COMMENCED" WITHIN
THE FEDERAL STATUTORY PERIOD, IT SUMMARILY DISPOSED OF THE STATE
QUESTIONS RAISED WITH THIS ONE SENTENCE:  "THIS DETERMINATION MAKES IT
UNNECESSARY TO PASS UPON EITHER THE (ILLINOIS) CONSTITUTIONAL QUESTION
INVOLVED OR THE VALIDITY OF THE (ILLINOIS) CHANGE-OF-VENUE STATUTE." 

IT IS TRUE THAT THE COURT BELOW HELD THAT "PROCEEDINGS IN THE CITY
COURT WERE OF NO EFFECT."  IN SO HOLDING, IT DID NOT DECIDE THAT THIS
FACT ALONE AUTHORIZED DISMISSAL OF THE CASES FROM THE CIRCUIT COURT,
WHICH ADMITTEDLY HAD JURISDICTION TO TRY CASES ARISING UNDER THE
FEDERAL ACT.  CONSEQUENTLY, IT CANNOT BE SAID THAT THIS HOLDING
PROVIDES AN INDEPENDENT STATE GROUND FOR THE CIRCUIT COURT'S
DISMISSAL.  THE ONLY REASON WHY THE CIRCUIT COURT COULD DISMISS UNDER
THE STATE COURT'S VIEW WAS BECAUSE SEC. 6 OF THE FEDERAL ACT REQUIRED A
SUIT TO BE "COMMENCED" IN TWO YEARS.  THIS MADE IT NECESSARY FOR THE
COURT TO INTERPRET THE MEANING AND SCOPE OF "COMMENCED."  IT CONSTRUED
THE WORD AS MEANING NOT ONLY THAT A SUIT SHOULD BE FILED WITHIN TWO
YEARS OF AN INJURY, BUT THAT SUCH SUIT MUST BE FILED IN A COURT HAVING
JURISDICTION TO HEAR AND DETERMINE THE CAUSE.  HAVING THUS BY
CONSTRUCTION SUPERIMPOSED THIS CONDITION ON THE FEDERAL ACT, IT
PROCEEDED TO DETERMINE WHETHER THE CITY COURT HAD SUCH POWER.  IT HELD
THAT THE CITY COURT DID NOT HAVE SUCH POWER (A STATE QUESTION).  THEN
APPLYING ITS CONSTRUCTION OF THE FEDERAL STATUTE, IT DECIDED THAT THE
ACTION HAD NOT BEEN "COMMENCED" WITHIN TWO YEARS FROM THE DATE OF THE
INJURIES (A FEDERAL QUESTION).  ALL OF THIS SHOWS A DETERMINATION OF
FEDERAL QUESTIONS WHICH WE SHOULD DECIDE.    BUT THIS COURT SAYS THAT
OTHER LANGUAGE IN THE STATE COURT'S OPINION INDICATES THAT ITS JUDGMENT
MIGHT REALLY HAVE BEEN RESTED ON A STATE PROCEDURAL GROUND, ADEQUATE TO
SUPPORT THE DISMISSALS.  SO NOW, MORE THAN EIGHT YEARS AFTER HERB WAS
INJURED, BOTH CASES ARE TO BE HELD HERE TO GIVE COUNSEL AN OPPORTUNITY
TO ASK THE STATE SUPREME COURT IF IT "INTENDED TO REST THE JUDGMENTS
HEREIN ON AN ADEQUATE AND INDEPENDENT STATE GROUND OR WHETHER DECISION
OF THE FEDERAL QUESTION WAS NECESSARY TO THE JUDGMENT RENDERED."  I
WOULD NOT THUS LIGHTLY ABDICATE OUR ULTIMATE RESPONSIBILITY TO PROTECT
FEDERALLY CREATED RIGHTS.  TO "ADMIT THAT THE AUTHORITY TO REVIEW THE
ACTION OF A STATE COURT WHERE IT HAS DECIDED A FEDERAL QUESTION CAN BE
RENDERED UNAVAILING BY A SUGGESTION 'THAT THE COURT BELOW MAY HAVE
RESTED ITS JUDGMENT' ON A NON-FEDERAL GROUND, WOULD SIMPLY AMOUNT TO
DEPRIVING THIS COURT OF ALL POWER TO REVIEW FEDERAL QUESTIONS IF ONLY A
PARTY CHOSE TO MAKE SUCH A SUGGESTION."  ST. LOUIS, I.M. & S.R. CO. V.
MCWHIRTER, 229 U.S. 265, 275, 276. 

FURTHERMORE, EVEN A FINAL DETERMINATION THAT THERE WAS AN ADEQUATE
STATE PROCEDURAL GROUND FOR DISMISSAL OF THESE PARTICULAR SUITS WOULD
NOT END THE CONTROVERSIES, ALTHOUGH IT MIGHT PROTRACT LITIGATION FOR
FIVE MORE YEARS.  THIS IS TRUE, BECAUSE IT IS BEYOND BELIEF THAT
DISMISSALS ON THESE PROCEDURAL GROUNDS WOULD BAR NEW ACTIONS BASED ON
THE INJURIES.  AND THE FEDERAL QUESTION SO CLEARLY PRESENTED HERE AND
NOW, COULD HARDLY BE ESCAPED IN NEW ACTIONS.  THAT QUESTION IS, "ARE
THESE SUITS BARRED BY SECTION 6 OF THE FEDERAL EMPLOYERS' LIABILITY
ACT?"  THIS QUESTION PRESENTS A TWOFOLD PROBLEM:  (1) DOES SEC. 6 HAVE
ANY APPLICATION TO THESE ACTIONS; (2) IF SO, SHOULD THE WORD
"COMMENCED" BE CONSTRUED SO AS TO MAKE THE BEGINNING OF THE SUIT IN THE
CITY COURT SUCH A COMMENCEMENT? 

AS TO (1), IT IS TO BE NOTED THAT BOTH COMPLAINANTS CLAIM DAMAGES FOR
VIOLATION OF THE FEDERAL SAFETY APPLIANCE ACT.  27 STAT. 531 ET SEQ.;
45 U.S.C. SEC. 1 ET SEQ. VIOLATION OF THE SAFETY APPLIANCE ACT, EVEN
WITHOUT THE FEDERAL EMPLOYERS' LIABILITY ACT, GIVES RISE TO A CAUSE OF
ACTION ON THE PART OF AN EMPLOYEE INJURED AS THE PROXIMATE RESULT OF
THAT VIOLATION.  LOUISVILLE & NASHVILLE R. CO. V. LAYTON, 243 U.S. 617,
620; TEXAS & PACIFIC R. CO. V. RIGSBY, 241 U.S. 33, 39.  THAT ACT
CONTAINS NO STATUTE OF LIMITATIONS.  NO AUTHORITY HAS BEEN CITED TO
SUPPORT THE PROPOSITION THAT THE CONDITION OF LIABILITY IMPOSED BY SEC.
6 OF THE FEDERAL EMPLOYERS' LIABILITY ACT APPLIES TO ACTIONS FOR
DAMAGES FOR VIOLATION OF THE SAFETY APPLIANCE ACT.  THE RULE OF THIS
COURT HAS BEEN TO GIVE THE SAFETY APPLIANCE ACT, UNDER WHICH THESE
CLAIMS WERE FILED, A LIBERAL CONSTRUCTION, AND ONE WHICH WILL PROMOTE,
NOT DEFEAT, ITS PURPOSE.  SWINSON V. CHICAGO, ST. P., M. & O.R. CO.,
294 U.S. 529, 531. 

ASSUMING THAT PETITIONERS HERE ARE TO BE REQUIRED TO FILE NEW SUITS,
AND THAT THE TWO YEAR LIMITATION OF SEC. 6 OF THE FEDERAL EMPLOYERS'
LIABILITY ACT APPLIES TO INJURIES RESULTING FROM VIOLATION OF THE
SAFETY APPLIANCE ACT, IT STILL MUST BE DETERMINED WHETHER FILING THESE
SUITS IN THE CITY COURTS "COMMENCED" ACTIONS WITHIN THE MEANING OF THAT
WORD AS USED IN SEC. 6. 

CERTAINLY THE RAILROADS HAD NOTICE OF THE SUITS.  THEY EVIDENTLY
THOUGHT THEY HAD BEEN "COMMENCED" WHEN THEY CONTESTED THEM IN ALL THE
COURTS OF ILLINOIS.  THE LAWYERS FOR ALL THE LITIGANTS UNDOUBTEDLY FELT
SURE THAT THEY WERE TRYING LAW SUITS IN PROPER FORUMS.  NEITHER THE
ILLINOIS COURT OF APPEALS NOR THE STATE SUPREME COURT WHICH REMANDED
HERB'S CASE TO THE CITY COURT HAD ANY DOUBT AT THAT TIME THAT SUITS HAD
BEEN "COMMENCED." 

THE PLAINEST PRINCIPLES OF JUSTICE DEMAND THAT THESE EMPLOYEES BE
AFFORDED A TRIAL.  NO REASON THAT CAN BE CONCEIVED FOR ERECTING A
STATUTORY BAR OF TWO YEARS JUSTIFIES AN INFERENCE THAT CONGRESS
INTENDED THAT EMPLOYEES WHO MADE BONA FIDE EFFORTS TO PROSECUTE THEIR
CLAIMS IN A COURT SHOULD BE BARRED BECAUSE OF UNANTICIPATED DECISIONS
AS TO JURISDICTION.  THE WORDS OF THE STATUTE JUSTIFY THE CONSTRUCTION
THAT THESE ACTIONS WERE "COMMENCED" WHEN THEY WERE FILED IN THE CITY
COURTS.  ANY OTHER CONSTRUCTION RESULTS IN A FRUSTRATION OF THE BROAD
OBJECTIVES OF THE ACT. 

FINALLY, I CAN FIND NO WARRANT WHATEVER FOR SAYING THAT THE STATE
SUPREME COURT MAY HAVE SUSTAINED DISMISSAL ON THE GROUND THAT NO SUITS
AT ALL WERE "PENDING" IN THE STATE CIRCUIT COURT.  THAT COURT HAD
JURISDICTION TO TRY THEM.  THE COMPLAINTS WERE THERE.  TRUE, THEY MIGHT
HAVE BEEN BROUGHT THERE BY A CITY COURT CLERK, ALTHOUGH SO FAR AS THE
RECORD SHOWS, PETITIONER'S ATTORNEYS MAY HAVE TAKEN THEM TO THE CIRCUIT
COURT.  BUT THE STATE SUPREME COURT'S OPINIONS DO NOT INDICATE THAT
ILLINOIS LAW REQUIRES THAT A COMPLAINT BE PHYSICALLY FILED BY THE HANDS
OF NO ONE EXCEPT AN INJURED PERSON.  I SHALL NOT BELIEVE THE STATE
COURT WOULD MAKE SUCH A HOLDING UNTIL IT DOES SO. 

FOR SPECIAL REASONS, IN ADDITION TO THOSE ABOVE STATED, I THINK THAT
THIS COURT'S ACTION IN REQUIRING BELCHER (PETITIONER IN NO. 25) TO
OBTAIN SOME KIND OF CERTIFICATE OF "INTENTION" FROM THE ILLINOIS
SUPREME COURT IS WITHOUT ANY CONCEIVABLE JUSTIFICATION.  THE ARGUMENT
OF PARTIES BEFORE US AND THE COURT'S OPINION HAVE TREATED THE BELCHER
CASE AS THOUGH THE SUPREME COURT OF ILLINOIS HAD SUSTAINED ITS
DISMISSAL AND THE HERB DISMISSAL, IN NO. 24, ON IDENTICAL GROUNDS. 
THIS TREATMENT OF THE TWO CASES IS NOT JUSTIFIED UNLESS THE STATE
COURT'S OPINION IN BELCHER'S CASE IS GIVEN A STRAINED INTERPRETATION. 
THE BELCHER OPINION DID CITE THE HERB OPINION AS PRESENTING "PARALLEL
FACTS" TO THOSE OF THE BELCHER CASE.  BUT THE "PARALLEL FACTS" IN THE
TWO CASES UPON WHICH THE BELCHER DISMISSAL WAS PREMISED, WERE CAREFULLY
LIMITED BY THE BELCHER OPINION'S STATEMENT OF THE ISSUE TO THIS
EFFECT: 

"DEFENDANT, APPEARING SPECIALLY, MADE A MOTION TO QUASH THE SUMMONS
ISSUED BY THE CITY COURT AND TO DISMISS THE CAUSE FOR THE REASON, AMONG
OTHERS, THAT THE CAUSE HAVING BEEN ORDERED TRANSFERRED TO THE CIRCUIT
COURT ON JULY 17, 1942, MORE THAN TWO YEARS AFTER THE DATE PLAINTIFF
SUFFERED HIS INJURIES, NAMELY, FEBRUARY 15, 1939, HE COULD NEITHER
INSTITUTE NOR MAINTAIN HIS ACTION IN THE CIRCUIT COURT SINCE IT HAD NOT
BEEN COMMENCED WITHIN TWO YEARS FROM THE DAY THE CAUSE OF ACTION
ACCRUED, CONFORMABLY TO SECTION 6 OF THE FEDERAL EMPLOYERS' LIABILITY
ACT."  BELCHER V. L. & N.R. CO., 384 ILL. 281, 282. 

AFTER STATING THE ISSUE IN THIS LIMITED FASHION, THE BELCHER OPINION
THEN WENT ON TO SAY: 

"UPON PARALLEL FACTS, HERB V. PITCAIRN,  ...  DECIDED THIS DAY, HOLDS
THAT AN ACTION IS NOT COMMENCED WITHIN TWO YEARS OF THE DATE OF INJURY
IN A COURT OF COMPETENT JURISDICTION, AS PRESCRIBED BY SECTION 6 OF THE
FEDERAL EMPLOYERS' LIABILITY ACT, BY TRANSFERRING THE CAUSE FROM A CITY
COURT HAVING NO JURISDICTION OF THE SUBJECT MATTER AT A DATE WHEN THE
ACTION, IF INSTITUTED ORIGINALLY ON SUCH DATE IN THE CIRCUIT COURT,
COULD NOT BE MAINTAINED BECAUSE NOT COMMENCED WITHIN THE STATUTORY
TIME.  OUR DISPOSITION OF THE IDENTICAL ISSUE IN HERB V. PITCAIRN IS
DECISIVE HERE."  BELCHER V. L. & N.R. CO., SUPRA, 282-283. 

IT THUS APPEARS THAT THE BELCHER OPINION SUSTAINING DISMISSAL RESTED
SQUARELY AND EXCLUSIVELY ON THE STATE COURT'S CONCLUSION THAT THE CAUSE
OF ACTION WAS BARRED BY SEC. 6 OF THE FEDERAL EMPLOYERS' LIABILITY
ACT.  NOTWITHSTANDING THIS, THE COURT NOW, SIX YEARS AFTER BELCHER'S
INJURIES, DELAYS A FINAL DECISION ON THE APPLICABILITY OF THE FEDERAL
ACT, TO AWAIT A STATEMENT FROM THE STATE COURT AS TO WHETHER IT WOULD
HAVE DECIDED IT ON A HYPOTHETICAL STATE GROUND HAD THAT GROUND BEEN
CONSIDERED BY IT IN THE FIRST INSTANCE. 

FN1  WERNER V. ILLINOIS CENTRAL R. CO., 379 ILL. 559, 42 N.E.2D 82;
MITCHELL V. LOUISVILLE & NASHVILLE R. CO., 379 ILL. 522, 42 N.E.2D 86. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 

MR. JUSTICE RUTLEDGE, DISSENTING. 

I CONCUR WITH MR. JUSTICE BLACK'S OPINION IN SO FAR AS IT RELATES TO
THE FAILURE OF THE ILLINOIS SUPREME COURT TO TAKE ACCOUNT OF
PETITIONERS' CLAIMS BASED ON THE FEDERAL SAFETY APPLIANCE ACT.  CLEARLY
SEC. 6 OF THE FEDERAL EMPLOYERS' LIABILITY ACT DOES NOT APPLY TO CAUSES
ARISING UNDER THE FORMER ACT AND, ON THIS GROUND ALONE, THE JUDGMENTS
SHOULD BE REVERSED. 

I AGREE ALSO THAT THE ILLINOIS COURT HAS DETERMINED THE CAUSES UNDER
THE EMPLOYERS' LIABILITY ACT SOLELY BY ITS VIEW OF FEDERAL LAW AND THAT
IT HAS DONE SO ERRONEOUSLY.  IT HAS HELD THAT NEITHER ACTION WAS
"COMMENCED" IN TIME WITHIN THE MEANING OF SEC. 6 AND IN DOING SO HAS
INTERPRETED "COMMENCED" TO MEAN BEGUN IN A COURT COMPETENT TO HEAR AND
DETERMINE THE CAUSE.  UNDER THIS DECISION, THE CAUSES WOULD NOT HAVE
BEEN COMMENCED, EVEN IF SIMILAR CAUSES ARISING UNDER STATE LAW WERE
HELD SUFFICIENTLY BEGUN, FOR SIMILAR PURPOSES, IN IDENTICAL
CIRCUMSTANCES.  WE DO NOT KNOW AND CANNOT KNOW WHETHER LOCAL ACTIONS SO
FILED AND TRANSFERRED WOULD BE BARRED.  WE DO NOT KNOW THIS BECAUSE, AS
MR. JUSTICE BLACK POINTS OUT, THE ILLINOIS SUPREME COURT EXPRESSLY
DISAVOWED THAT IT HAD APPLIED OR DETERMINED THE VALIDITY OF THE
ILLINOIS VENUE STATUTES, WHICH ON THEIR FACE PURPORT TO AUTHORIZE JUST
SUCH TRANSFERS AS OCCURRED IN THESE CAUSES.  FN1 CONSEQUENTLY UNTIL THE
VALIDITY AND EFFECT OF THOSE STATUTES ARE DETERMINED, THE ILLINOIS
COURT'S DECISION IN THESE CASES MUST BE TAKEN TO REST WHOLLY UPON ITS
VIEW OF THE MEANING OF SEC. 6, ENTIRELY INDEPENDENTLY OF THE MEANING OF
THE STATE VENUE STATUTES, AND TO BE FOUNDED SOLELY UPON A FEDERAL
GROUND. 

THAT GROUND AS THE ILLINOIS COURT DECIDED IT IS, IN MY OPINION,
CLEARLY WRONG.  IT WAS, APPARENTLY, THAT "COMMENCED" IN SEC. 6 ALWAYS
MEANS "COMMENCED IN A COURT COMPETENT TO HEAR AND DETERMINE THE CAUSE,"
REGARDLESS OF WHETHER LOCAL CAUSES MAY BE SUFFICIENTLY COMMENCED, FOR
SIMILAR PURPOSES, IN A COURT OF LIMITED JURISDICTION CAPABLE OF
TRANSFERRING BUT NOT OF HEARING AND DECIDING THEM.  NOTHING IN SEC. 6
OR THE ACT SO STATES.  ON THE CONTRARY, WHEN THE SUIT IS IN A STATE
COURT, IT IS TO BE TAKEN, BY FAIR IMPLICATION, THAT WHATEVER IS
SUFFICIENT GENERALLY TO CONSTITUTE BEGINNING OF SUIT FOR OTHER ACTIONS
IS BEGINNING OF SUIT FOR THESE.  IF FOR INSTANCE IT SHOULD BE THE STATE
LAW THAT LOCAL CAUSES ARE SUFFICIENTLY COMMENCED FROM THE TIME OF
FILING THE COMPLAINT, THOUGH IN THE WRONG COURT FOR REASONS OF
JURISDICTION RELATING TO TRIAL AND DECISION, IF NEVERTHELESS UPON
DISCOVERY OF THE ERROR THE CAUSE IS TRANSFERRED TO ANOTHER COURT HAVING
COMPLETE JURISDICTION, NOTHING IN SEC. 6 OR THE FEDERAL EMPLOYERS'
LIABILITY ACT REQUIRES OR PERMITS SUITS BROUGHT UNDER THAT ACT TO BE
TREATED DIFFERENTLY.  A STATE MAY CONFER UPON ITS COURTS OF LIMITED
JURISDICTION LIMITED POWERS OVER CAUSES THEY ARE NOT COMPETENT TO HEAR
AND DECIDE.  A SALUTARY INSTANCE WOULD BE TO SAFEGUARD LITIGANTS
AGAINST UNWITTING LOSS OF THEIR RIGHTS OF ACTION THROUGH STUMBLING INTO
JURISDICTIONAL PITFALLS, BY PROVIDING THAT ACTIONS FILED IN THE WRONG
COURT SHOULD NOT BE DEFEATED THROUGH LAPSE OF TIME MERELY BECAUSE THE
PLAINTIFF HAD MISTAKEN HIS COURT, IF UPON DISCOVERY OF THE ERROR,
THOUGH AFTER THE PERIOD, THE CAUSE WERE TRANSFERRED PROMPTLY TO A FULLY
COMPETENT COURT.  SUCH A PROVISION WOULD MERELY CREATE EITHER AN
EXCEPTION TO THE STATUTE OF LIMITATIONS OR A MEANS OF SUSPENDING THE
TIME OF ITS RUNNING.  ON THEIR FACE, THAT IS WHAT THE ILLINOIS VENUE
STATUTES PURPORT TO DO, THOUGH WHETHER THIS IS THEIR EFFECT IS OF
COURSE FOR THE STATE COURTS TO DECIDE. 

IN ANY EVENT, SUCH A STATUTE WOULD NOT BE CONTRARY TO OR INCONSISTENT
WITH SEC. 6 OR ANY OTHER PROVISION OF THE FEDERAL EMPLOYERS' LIABILITY
ACT.  ON THE CONTRARY, LITIGANTS IN THE STATE COURTS UNDER THAT ACT
WOULD BE ENTITLED TO THE BENEFIT OF SUCH A PROVISION IF THIS WERE GIVEN
TO LITIGANTS HAVING CAUSES ARISING UNDER STATE LAW. 

ACCORDINGLY, SINCE THE ILLINOIS COURT HAS HELD THAT SEC. 6 BY ITS OWN
TERMS REQUIRES THAT THE COMMENCING EVENT TAKE PLACE IN A COURT HAVING
JURISDICTION NOT ONLY TO BEGIN AND TRANSFER, BUT ALSO TO HEAR AND TO
DECIDE, THE JUDGMENTS SHOULD BE REVERSED AND REMANDED. 

FN1  THE PERTINENT PROVISIONS OF THE ILLINOIS VENUE STATUTES ARE AS
FOLLOWS:  "THAT WHEREVER ANY SUIT OR PROCEEDING SHALL HEREAFTER BE
COMMENCED, IN ANY COURT OF RECORD IN THIS STATE, AND IT SHALL APPEAR TO
THE COURT WHERE THE SAME IS PENDING, THAT THE SAME HAS BEEN COMMENCED
IN THE WRONG COURT OR COUNTY, THEN UPON MOTION OF EITHER OR ANY OF THE
PARTIES TO SUCH SUIT OR PROCEEDING, THE COURT SHALL CHANGE THE VENUE OF
SUCH SUIT OR PROCEEDING TO THE PROPER COURT OR COUNTY, AND THE SAME
WHEN THE VENUE SHALL BE SO CHANGED, SHALL BE THEN PENDING AND TRIABLE
IN SUCH COURT OR COUNTY TO WHICH THE SAME SHALL BE SO CHANGED THE SAME
AS IN OTHER CASES OF CHANGE OF VENUE:  PROVIDED, THAT WHERE EITHER
PARTY TO SUCH SUIT OR PROCEEDING SHALL PROCURE THE CHANGE OF VENUE AS
HEREIN PROVIDED FOR, THAT THE COURT SHALL REQUIRE THE PLAINTIFF IN SAID
SUIT TO PAY ALL COSTS IN SUCH SUIT OR PROCEEDING, UP TO AND INCLUDING
THE COSTS OF THE CHANGE OF VENUE EXCEPT SUCH COSTS, IF ANY THERE ARE,
AS SHALL HAVE BEEN MADE OR OCCASIONED BY ANSWER TO THE MERITS AND A
TRIAL THEREON, IF ANY SUCH SHALL HAVE BEEN HAD OR MADE, AND SUCH COSTS,
IF ANY, CAUSED BY ANSWER TO THE MERITS AND TRIAL THEREON SHALL ABIDE
THE FINAL RESULT OF SUCH SUIT OR PROCEEDING THE SAME AS IN OTHER CASES
OF CHANGE OF VENUE."  ILL. REV. STAT., 1943, C. 146, SEC. 36. 

"CHANGE OF VENUE FROM CITY COURTS, FOR THE SAME CAUSES AND IN THE
SAME MANNER, MAY BE TAKEN AS FROM CIRCUIT COURTS, AND THE CASES SENT TO
ANY OTHER CITY COURT, OR TO ANY CIRCUIT COURT, OR TO ANY OTHER COURT OF
COMPETENT JURISDICTION WHERE THE CAUSE COMPLAINED OF DOES NOT
EXIST:..."  ILL. REV. STAT., 1943, C. 37, SEC. 346.    "THE CLERK OF
THE COURT TO WHICH THE CHANGE OF VENUE IS GRANTED SHALL FILE THE
TRANSCRIPT AND PAPERS TRANSMITTED TO HIM AND DOCKET THE CAUSE, AND SUCH
CAUSE SHALL BE PROCEEDED IN AND DETERMINED IN ALL THINGS, AS WELL
BEFORE AS AFTER JUDGMENT, AS IF IT HAD ORIGINATED IN SUCH COURT."  ILL.
REV. STAT., 1943, C. 146, SEC. 16. 
..END :









PENNSYLVANIA R. CO. V. U.S., 323 U.S. 588 


NO. 182.  ARGUED JANUARY 11, 1945.  - DECIDED JANUARY 29, 1945.  - 54
F.SUPP.  381, AFFIRMED. 


1.  SECTION 15(4)(B) OF THE INTERSTATE COMMERCE ACT EMPOWERS THE
INTERSTATE COMMERCE COMMISSION TO ESTABLISH A THROUGH ROUTE WHICH WOULD
REQUIRE A CARRIER TO SHORT-HAUL ITSELF WHERE SUCH ROUTE IS NEEDED IN
ORDER TO PROVIDE "ADEQUATE, AND MORE EFFICIENT OR MORE ECONOMIC,
TRANSPORTATION."  HELD THAT, IN DETERMINING WHETHER THE PROPOSED
THROUGH ROUTE IS NEEDED IN ORDER TO PROVIDE "ADEQUATE, AND MORE
EFFICIENT OR MORE ECONOMIC, TRANSPORTATION," THE COMMISSION MAY
CONSIDER THE INTERESTS OF THE SHIPPER AS WELL AS THOSE OF THE CARRIER. 
P. 592. 

2.  THE ORDER OF THE INTERSTATE COMMERCE COMMISSION REQUIRING THE
ESTABLISHMENT OF THROUGH ROUTES WAS SUPPORTED BY THE FINDINGS AND THE
EVIDENCE.  P. 593. 

PENNSYLVANIA RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MARYLAND. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES REFUSING TO
SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, 255 I.C.C.
333. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A DECREE  FN1  OF A DISTRICT COURT OF THREE
JUDGES DISMISSING THE PETITION OF THE APPELLANTS, THIRTEEN TRUNK LINE
RAILROADS, FOR AN INJUNCTION ANNULLING AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION,  FN2  WHICH REQUIRED THE RAILROADS TO ESTABLISH
AND MAINTAIN TWO THROUGH ROUTES. 

THE COMMISSION'S ORDER WAS MADE AFTER HEARING UPON A COMPLAINT OF D.
A. STICKELL & SONS, INC., A MANUFACTURER OF MIXED FEEDS AT HAGERSTOWN,
MD.  THIS CONCERN OBTAINS ITS INBOUND RAW MATERIAL OF GRAIN AND GRAIN
PRODUCTS, ETC., FROM MANUFACTURING PLANTS LOCATED IN SO-CALLED CENTRAL
TERRITORY.  THESE ARE MIXED AND THE MIXED AGGREGATE MOVES FROM THE
PLANT AT HAGERSTOWN TO POINTS EASTWARD, BUT PRINCIPALLY TO THE SO
CALLED DEL-MAR-VA PENINSULA, A PORTION OF DELAWARE, MARYLAND, AND
VIRGINIA, WHICH IS SERVED SOLELY BY THE PENNSYLVANIA RAILROAD. 
HAGERSTOWN LIES ON THE MAIN LINE OF THE WESTERN MARYLAND RAILWAY.  THE
PENNSYLVANIA SERVES IT BY A BRANCH LINE RUNNING FROM HARRISBURG, PA.,
TO WINCHESTER, VA., AND THE BALTIMORE & OHIO BY A BRANCH LINE RUNNING
NORTH FROM ITS MAIN LINE AT WEVERTON, MARYLAND.  THE RAILROADS ACCORD
TRANSIT FACILITIES AT HAGERSTOWN WHEREBY STICKELL MAY RECEIVE THE
INBOUND MATERIALS, MIX THEM, AND SHIP THE PRODUCTS TO DESTINATION ON A
THROUGH RATE PLUS A TRANSIT CHARGE AS IF THE MOVEMENT HAD BEEN A
THROUGH ONE FROM ORIGIN TO DESTINATION.  THE HANDLING OF FREIGHT MOVING
OVER THE PENNSYLVANIA RAILROAD WILL ILLUSTRATE THE PROBLEM.  THE SO
CALLED BACK-HAUL, OR OUT-OF-LINE HAUL, REQUIRED TO REACH HAGERSTOWN
FROM THE PENNSYLVANIA'S MAIN LINE IS 74.5 MILES IN EACH DIRECTION AND
THE ADDITIONAL CHARGE FOR IT IS 4.5 CENTS PER CWT., OR ABOUT 17% OF THE
THROUGH RATE.  INTERCHANGE AND SWITCHING OPERATIONS TO REACH THE
STICKELL PLANT ARE PERFORMED BY THE WESTERN MARYLAND AND THE
PENNSYLVANIA ABSORBS THESE CHARGES.  THE COMMISSION'S ORDER ESTABLISHED
TWO NEW THROUGH ROUTES WHICH INCLUDED THE WESTERN MARYLAND, THE LINE
WHICH SERVES THE STICKELL PLANT.  BOTH REDUCED THE PENNSYLVANIA'S LINE
HAUL TO THAT PORTION OF THE ROUTES EASTWARD OF YORK, PA., OR FULTON
JUNCTION (BALTIMORE), MARYLAND, IN RESPECT OF SHIPMENTS TO THE DEL-MAR
VA PENINSULA, THUS DEPRIVING THE PENNSYLVANIA OF A LONG HAUL FROM
POINTS WEST OF PITTSBURGH, PA., THROUGH HARRISBURG, PA. 

THE GRAVAMEN OF STICKELL'S COMPLAINT BEFORE THE COMMISSION WAS THAT
THE BACK-HAULS INVOLVED IN EXISTING ROUTES DELAYED ITS SHIPMENTS AND,
WHILE THE CHARGE FOR SUCH BACK-HAULS WAS REASONABLE, THE ADDITION OF
THIS CHARGE TO THE THROUGH RATE CUT INTO ITS MARGIN OF PROFIT, WHICH IS
SMALL.  THESE FACTORS, IT CLAIMED, DEPRIVED IT OF ITS RIGHTFUL
COMPETITIVE RELATION TO OTHER MANUFACTURERS OF MIXED FEED. 

THE COMMISSION'S AUTHORITY TO GRANT RELIEF IS BOTTOMED ON SEC. 15(3)
AND (4) OF THE INTERSTATE COMMERCE ACT AS AMENDED.  FN3  THE SUBSECTION
FIRST MENTIONED AUTHORIZES THE COMMISSION, WHEN IT DEEMS IT TO BE
"NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST" TO ESTABLISH THROUGH
ROUTES AND JOINT RATES.  THE SUCCEEDING SUBSECTION IS A LIMITATION ON
THE COMMISSION'S POWER, DERIVED IN PART FROM EARLIER ENACTMENTS,
PROHIBITING THE COMMISSION FROM REQUIRING A LINE-HAUL CARRIER TO SHORT
HAUL ITSELF AS A PARTICIPANT IN A PRESCRIBED THROUGH ROUTE.  THE
EARLIER PART OF THE PARAGRAPH RETAINS THE PROHIBITION AGAINST SHORT
HAULING BUT CONTAINS EXCEPTIONS, ONE OF WHICH, DESIGNATED (B), IS
"UNLESS THE COMMISSION FINDS THAT THE THROUGH ROUTE PROPOSED TO BE
ESTABLISHED IS NEEDED IN ORDER TO PROVIDE ADEQUATE, AND MORE EFFICIENT
OR MORE ECONOMIC, TRANSPORTATION:..."  THE PRINCIPAL CONTROVERSY IN THE
CAUSE TURNS ON THE PROPER INTERPRETATION OF THE QUOTED EXEMPTION FROM
THE GENERAL PROHIBITION OF THROUGH ROUTES WHICH INVOLVE SHORT HAULING. 
THERE ARE CERTAIN SUBSIDIARY ISSUES WHICH WILL BE NOTICED. 

THE OPPOSING VIEWS OF THE PARTIES MAY BE SUMMARIZED.  THE APPELLANTS
ARGUE THAT THE PHRASE "ADEQUATE, AND MORE EFFICIENT OR MORE ECONOMIC,
TRANSPORTATION" REFERS TO CARRIER OPERATIONS AND EXPENSE AND HAS NO
REFERENCE TO THE BROADER PUBLIC INTEREST WHICH EMBRACES SERVICE TO
SHIPPERS AND THE RATES THEY PAY.  THE APPELLEES URGE THAT THE PHRASE
COMPREHENDS THE ADEQUACY OF SERVICE, ITS COST TO THE SHIPPER, AND THE
CONVENIENCE, EFFICIENCY, AND COST OF THE CARRIERS' OPERATIONS.  THE
COMMISSION TOOK THE LATTER VIEW.  IN ITS DECISION IT PURPORTED TO
CONSIDER ALL THESE ELEMENTS AND, ON APPRAISAL OF THEM, CONCLUDED THE
TWO ROUTES IT PRESCRIBED WERE JUSTIFIED BY SEC. 15(4).  THE COURT BELOW
SUSTAINED THE COMMISSION.  WE THINK ITS JUDGMENT WAS RIGHT. 

WITHOUT RECITING IN DETAIL THE STATUTORY HISTORY, WHICH IS GIVEN IN
FULL IN THE OPINION BELOW, IT WILL SUFFICE TO SAY THAT THE COMMISSION
ORIGINALLY CONSTRUED THE SHORT-HAUL PROVISION OF THE INTERSTATE
COMMERCE LAW AS PROTECTING ONLY THE HAUL OF THE ORIGINATING CARRIER. 
IN UNITED STATES V. MISSOURI PACIFIC R. CO., 278 U.S. 269, THIS
CONSTRUCTION WAS OVERRULED.  DECISION WAS HANDED DOWN AFTER THE
COMMISSION HAD MADE AN ORDER ON AN EARLIER COMPLAINT OF STICKELL,
SIMILAR TO THE ORDER HERE INVOLVED; FN4  BUT, AFTER THIS COURT'S
DECISION, THE COMMISSION SET ASIDE THE ORDER IN CONFORMITY TO OUR
OPINION.  SEVERAL UNSUCCESSFUL ATTEMPTS WERE THEREUPON MADE TO INDUCE
CONGRESS TO REPEAL THE SHORT-HAUL PROHIBITION.  WHEN THE 1940 AMENDMENT
TO THE INTERSTATE COMMERCE ACT WAS ON ITS PASSAGE, THE SHORT-HAUL
PROHIBITION WAS ELIMINATED BY THE SENATE.  THE HOUSE RETAINED THE
PROVISION WITHOUT CHANGE. 

IN CONFERENCE SEC. 15(4) WAS AMENDED BY PERMITTING THE COMMISSION TO
REQUIRE A CARRIER TO SHORT-HAUL ITSELF UNDER THE CONDITIONS SPECIFIED
IN THE LANGUAGE WE HAVE QUOTED.  THUS THE TWO SECTIONS - 15(3) AND (4)
SINCE 1940 HAVE PROVIDED THAT THE COMMISSION MAY ESTABLISH A THROUGH
ROUTE IF FOUND TO BE "IN THE PUBLIC INTEREST" BUT MAY NOT ESTABLISH
SUCH A ROUTE WHICH REQUIRES A CARRIER TO SHORT-HAUL ITSELF UNLESS IT
FINDS THAT THE ROUTE WILL PROVIDE ADEQUATE, AND MORE EFFICIENT OR MORE
ECONOMIC, TRANSPORTATION.  THE APPELLANTS SUGGEST THAT IF THE LATTER
PHRASE BE CONSTRUED AS THE COMMISSION HAS CONSTRUED IT THE TWO SECTIONS
TAKEN TOGETHER WILL BE REDUNDANT FOR SUBSECTION (3) PERMITS THE
ESTABLISHMENT OF A THROUGH ROUTE ONLY IF IT IS IN THE PUBLIC INTEREST,
AND THE SHORT-HAUL PROVISION MAY BE DISREGARDED ONLY IF SO TO DO WOULD
BE IN THE PUBLIC INTEREST.  BUT WE THINK THIS IS NOT A FAIR
CONSTRUCTION OF THE STATUTE.  IT IS CONCEIVABLE THAT THE COMMISSION
MIGHT REFUSE TO ESTABLISH MANY THROUGH ROUTES AS NOT REQUIRED IN THE
PUBLIC INTEREST WHERE SHORT HAULING IS NOT INVOLVED.  ON THE OTHER
HAND, IF THE COMMISSION IS ASKED TO ABROGATE THE GENERAL RULE WITH
REGARD TO THE SHORT-HAUL, THE STATUTE SAYS IT MUST HAVE REGARD TO
SEVERAL MATTERS.  THE FIRST OF THESE IS ADEQUACY OF TRANSPORTATION. 
THE EXPRESSION WOULD SEEM TO APPLY ONLY TO THE INTEREST OF THE SHIPPING
PUBLIC.  THE SECOND AND THIRD MATTERS TO BE CONSIDERED ARE EFFICIENT
AND ECONOMIC TRANSPORTATION.  THESE EXPRESSIONS MAY WELL EMBRACE BOTH
SHIPPERS' AND CARRIERS' INTERESTS.  CONGRESS HAD A PURPOSE IN AMENDING
THE PROVISION, AND WE THINK THE COMMISSION WAS NOT IN ERROR IN
CONSTRUING THE LANGUAGE USED AS EVINCING AN INTENT THAT BOTH INTERESTS
SHOULD BE CONSIDERED AND A FAIR BALANCE FOUND. 

THE APPELLANTS REFER TO LEGISLATIVE HISTORY, TO THE POLICY DECLARED
IN THE INTERSTATE COMMERCE LEGISLATION, TO THE DEFINITION OF
TRANSPORTATION IN THE STATUTE, AND OTHER AIDS TO CONSTRUCTION, IN
SUPPORT OF THEIR ARGUMENT.  THESE WERE, IN OUR VIEW, ADEQUATELY
DISCUSSED BY THE COURT BELOW.  WE HAVE CONSIDERED THEM BUT THEY DO NOT
PERSUADE US THAT THE COMMISSION AND THE DISTRICT COURT WERE WRONG IN
THEIR INTERPRETATION OF SEC. 15(4). 

THE APPELLANTS CONTEND THAT EVEN IF THE COMMISSION WAS RIGHT IN ITS
INTERPRETATION OF ITS STATUTORY AUTHORITY, ITS OVER-ALL CONCLUSION IS
NOT SUPPORTED BY EVIDENCE OR BY THE SUBSIDIARY FINDINGS.  THE CLAIM IS
THAT THE COMMISSION DID NOT MAKE FINDINGS THAT THE EXPENSE AND
INCONVENIENCE TO THE CARRIERS CONCERNED OF RENDERING SERVICES OVER
ROUTES INVOLVING FOUR, FIVE, OR SIX RAILROADS, WITH THE CONSEQUENT
INTERCHANGE OF TRAFFIC, WOULD NOT BE INORDINATELY EXPENSIVE AND
BURDENSOME, AND THEY POINT TO CERTAIN EVIDENCE OFFERED BEFORE THE
COMMISSION WHICH THEY SAY THE COMMISSION IGNORED.  IN THE COURT BELOW
THE SAME CONTENTION WAS CONSIDERED AND OVERRULED.  TRUE, THE
COMMISSION'S FINDINGS ARE NOT SHARP AND CLEAR ON THE POINT, BUT THE
MATTER WAS NOT IGNORED AND THE COMMISSION'S DECISION REFERS TO IT.  WE
ARE UNABLE TO SAY THAT THERE WAS NOT SUFFICIENT IN THE RECORD BEFORE
THE COMMISSION, AND IN ITS FINDINGS, TO JUSTIFY THE CONCLUSION THAT THE
COMMISSION, AS IT SAYS IT DID, WEIGHED THE EVIDENCE AND FOUND THAT THE
BALANCE WAS IN FAVOR OF THE ORDER MADE.  JUDGMENT AFFIRMED. 

FN1  54 F.SUPP.  381. 

FN2  STICKELL & SONS V. ALTON R. CO., 255 I.C.C. 333. 

FN3  49 U.S.C. SEC. 15(3)(4). 

FN4  STICKELL & SONS V. WESTERN MARYLAND R. CO., 146 I.C.C. 609. 
..END :







CITY BANK CO. V. MCGOWAN, 323 U.S. 594 


NO. 294.  ARGUED JANUARY 4, 1945.  - DECIDED JANUARY 29, 1945.  - 142
F.2D 599, REVERSED IN PART. 


1.  SECTION 302(C) OF THE REVENUE ACT OF 1926, AS AMENDED, WHICH, FOR
THE PURPOSE OF THE FEDERAL ESTATE TAX, REQUIRES INCLUSION, IN THE GROSS
ESTATE OF A DECEDENT, OF ANY INTEREST IN PROPERTY OF WHICH "THE
DECEDENT HAS AT ANY TIME MADE A TRANSFER  ...  IN CONTEMPLATION OF  ...
HIS DEATH," HELD APPLICABLE TO A TRANSFER OF PROPERTY OF AN
INCOMPETENT PERSON, EFFECTED BY ORDER OF A COURT ACTING IN LIEU OF THE
INCOMPETENT.  P. 598. 

2.  A TRANSFER IS "IN CONTEMPLATION OF DEATH," WITHIN THE MEANING OF
SEC. 302(C), WHERE THE THOUGHT OF DEATH IS THE IMPELLING CAUSE OF THE
TRANSFER.  UNITED STATES V. WELLS, 283 U.S. 102.  P. 599. 

3.  WHERE BY COURT ORDER ANNUAL ALLOWANCES WERE MADE OUT OF THE
SURPLUS INCOME OF AN INCOMPETENT PERSON, OVER SEVENTY YEARS OF AGE AND
INCURABLY INSANE, TO DESCENDANTS WHO WOULD INHERIT THE INCOMPETENT'S
PROPERTY, AND WHERE THE DOMINATING REASON FOR THE ALLOWANCES WAS THAT
THE BENEFICIARIES WOULD EVENTUALLY DIVIDE THE ESTATE, HELD THAT THE
ANNUAL ALLOWANCES - TO THE EXTENT THAT THEY EXCEEDED AN AMOUNT WHICH
THE INCOMPETENT, FOR SOME YEARS PRIOR TO ADJUDICATION OF INCOMPETENCY,
HAD REGULARLY ALLOWED - WERE MADE "IN CONTEMPLATION OF DEATH," WITHIN
THE MEANING OF SEC. 302(C).  P. 599. 

4.  ALLOWANCES MADE BY COURT ORDER OUT OF THE SURPLUS INCOME OF AN
INCOMPETENT PERSON TO COLLATERAL RELATIONS, WHO WOULD INHERIT NO PART
OF THE INCOMPETENT'S PROPERTY AND WHO WERE IN NEED OF FUNDS FOR THEIR
MAINTENANCE AND SUPPORT, HELD NOT MADE "IN CONTEMPLATION OF DEATH"
WITHIN THE MEANING OF SEC. 302(C).  P. 600. 

CITY BANK FARMERS TRUST CO. (FORMERLY FARMERS LOAN & TRUST CO.),
ADMINISTRATOR, V. MCGOWAN, COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 689, TO REVIEW THE AFFIRMANCE OF A JUDGMENT, 43
F.SUPP.  790, WHICH ALLOWED RECOVERY IN PART IN A SUIT FOR REFUND OF
FEDERAL ESTATE TAXES. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE CASE PRESENTS AN ISSUE OF IMPORTANCE ARISING UNDER SEC. 302(C) OF
THE REVENUE ACT OF 1926, AS AMENDED,  FN1  WHICH REQUIRES INCLUSION, IN
THE GROSS TAXABLE ESTATE OF A DECEDENT, OF ANY INTEREST IN PROPERTY OF
WHICH THE "DECEDENT HAS AT ANY TIME MADE A TRANSFER  ...  IN
CONTEMPLATION OF  ...  HIS DEATH  ..."  MORE SPECIFICALLY, THE INQUIRY
IS WHETHER THE SECTION REACHES ALLOWANCES OUT OF THE INCOME OF AN
INCOMPETENT PERSON. 

HELEN HALL VAIL DIED IN 1935 INTESTATE.  FOR NINE YEARS SHE HAD BEEN
INCURABLY INSANE.  IN 1926 AN ADJUDICATION OF INCOMPETENCY WAS ENTERED
BY THE SUPREME COURT OF THE STATE OF NEW YORK, AND A COMMITTEE WAS
APPOINTED TO CARE FOR HER PROPERTY, WHICH CONSISTED OF INCOME-PRODUCING
REALTY AND PERSONALTY.  IN ADDITION, SHE WAS IN RECEIPT OF THE INCOME
OF A TRUST.  DURING THE PERIOD OF FIVE YEARS PRIOR TO THE ADJUDICATION
HER ANNUAL INCOME FROM ALL SOURCES HAD AVERAGED $300,000.  SHE WAS OVER
70 YEARS OF AGE BUT IN GOOD PHYSICAL HEALTH.  SHE HAD A LIVING DAUGHTER
AND THREE GRANDSONS, CHILDREN OF A DECEASED DAUGHTER.  APPLICATION WAS
MADE TO THE COURT TO MAKE ALLOWANCES OUT OF INCOME TO MRS. VAIL'S ISSUE
AND TO A BROTHER AND SISTERS.  THE COURT REFERRED THE MATTER TO A
REFEREE BEFORE WHOM IT WAS SHOWN THAT SHE HAD, OVER A PERIOD OF YEARS,
ALLOWED EACH OF HER DAUGHTERS $6,000, AND ONE OF HER SISTERS $500, PER
ANNUM, AND HAD MADE GIFTS TO HER DAUGHTERS, BUT NOT WITH REGULARITY. 
AS SHE WAS CONFINED IN AN INSTITUTION, HER TOTAL NEEDS, INCLUDING
MAINTENANCE AND TAXES, DID NOT EXCEED $50,000 PER ANNUM.  ACCUMULATED
INCOME IN THE HANDS OF THE COMMITTEE AMOUNTED TO OVER $750,000. 

THE COURT, ON THE BASIS OF THE REFEREE'S REPORT, ENTERED AN ORDER
WHICH, AFTER RECITING THAT MRS. VAIL HAD MADE NO WILL, THAT THE
DAUGHTER AND GRANDCHILDREN, OR THEIR ISSUE, WOULD, UPON HER DEATH, BE
HER ONLY HEIRS AT LAW AND NEXT OF KIN, AND THE ONLY PERSONS ENTITLED TO
SHARE IN HER ESTATE, AND THAT, IF SHE WERE IN POSSESSION OF HER MENTAL
FACULTIES, "SHE WOULD DESIRE THAT THE ALLOWANCE HEREINAFTER FIXED BE
MADE  ..., AND WOULD MAKE SUCH ALLOWANCES TO SUCH PERSONS OUT OF HER
PROPERTY," DIRECTED THE COMMITTEE TO PAY YEARLY, IN QUARTERLY
INSTALLMENTS, $50,000 TO THE LIVING DAUGHTER AND $50,000 TO THE
GUARDIAN OF THE CHILDREN OF THE DECEASED DAUGHTER, $2,000 EACH TO ALL
BUT ONE OF THE BROTHER AND SISTERS; AND $3,000 TO THE REMAINING
SISTER. 

SOME SIX YEARS LATER AN APPLICATION WAS MADE FOR AN INCREASE IN THE
ALLOWANCE.  THE MATTER WAS AGAIN REFERRED FOR HEARING AND, ON THE
COMING IN OF THE REFEREE'S REPORT SHOWING THAT ACCUMULATED INCOME IN
MRS. VAIL'S ACCOUNT HAD INCREASED TO OVER $1,000,000, THAT INCOME HAD
AVERAGED, FOR OVER FIVE YEARS, APPROXIMATELY $395,000 PER ANNUM, AND,
AFTER PAYING ALLOWANCES AND ALL EXPENSES, THE SURPLUS AVERAGED ABOUT
$191,000 A YEAR, THE COURT MADE AN ORDER RECITING THAT SHE WAS THEN 77
YEARS OF AGE AND INCURABLE, ENUMERATED THE ISSUE WHO WOULD BE ENTITLED
TO HER ESTATE AT DEATH, THAT SHE HAD NO WILL, AND THAT IF SHE WERE
COMPETENT SHE WOULD HAVE DESIRED THAT THE SUMS NAMED IN THE EARLIER
DECREE BE AUGMENTED, RAISED THE ALLOWANCES TO THE DAUGHTERS AND TO THE
GRANDCHILDREN COLLECTIVELY TO $75,000, RETROACTIVE TO THE DATE OF THE
ORIGINAL ORDER.  IT WAS NEVER CLAIMED, AND IS NOT CONTENDED, THAT THE
NEXT OF KIN NEEDED ANY SUCH ALLOWANCES FOR THEIR MAINTENANCE AND
SUPPORT IN THEIR STATION IN LIFE.  IT IS CONCEDED THAT THE BROTHER AND
SISTERS TO WHOM ALLOWANCES WERE MADE WERE DESTITUTE AND IN NEED OF
MAINTENANCE. 

AT MRS. VAIL'S DEATH THE ALLOWANCES THERETOFORE PAID TOTALED
$1,377,866.67.  THE COMMISSIONER OF INTERNAL REVENUE INCLUDED THE SUM
IN THE DECEDENT'S GROSS ESTATE AND DETERMINED A DEFICIENCY.  THE
PETITIONER, AS ADMINISTRATOR, PAID THE SUM DEMANDED, CLAIMED A REFUND
AND, ON DENIAL, INSTITUTED THIS ACTION IN THE DISTRICT COURT.  THAT
COURT, UPON CONSIDERATION OF THE RECORD OF THE PROCEEDINGS IN THE
SUPREME COURT OF NEW YORK, FOUND THAT THE TOTAL OF THE ALLOWANCES WAS
PROPERLY INCLUDED IN THE DECEDENT'S GROSS ESTATE, EXCEPT SO MUCH AS
REPRESENTED ANNUAL PAYMENTS TO THE DAUGHTER AND THE GRANDCHILDREN'S
GUARDIAN OF $6,000 EACH AND $500 PER ANNUM OF THE GIFTS TO COLLATERALS,
AND ENTERED JUDGMENT ACCORDINGLY.  FN2  THE CIRCUIT COURT OF APPEALS,
BY A DIVIDED COURT, AFFIRMED THE JUDGMENT.  FN3  WE GRANTED
CERTIORARI. 

THE SUPREME COURT OF NEW YORK IS EMPOWERED BY STATUTE TO ACT AS
REPRESENTATIVE OF THE STATE, AS PARENS PATRIAE, IN CARING FOR THE
PERSONS AND THE ESTATES OF ITS INCOMPETENT CITIZENS.  THAT COURT MAY
GRANT ALLOWANCES OUT OF INCOME ONLY IF IT DETERMINES THAT THE
INCOMPETENT WOULD PROBABLY HAVE GRANTED SUCH ALLOWANCES HIMSELF HAD HE
BEEN SANE.  THE COURT DOES NOT, IN ANY PROPER SENSE, ACT AS THE
INCOMPETENT'S AGENT.  IN THE EXERCISE OF THE POWER THE PRIMARY
CONSIDERATION IS THAT THE INCOMPETENT'S PROPERTY SHALL NOT BE WASTED
BUT PRESERVED AGAINST THE POSSIBILITY OF RESTORATION TO SANITY.  ON
THESE PROPOSITIONS THE PARTIES ARE IN ACCORD. 

THE PETITIONER URGES THAT THE PRESENT CASE IS NOT WITHIN THE TERMS OF
THE STATUTE AND THAT, IN ENACTING SEC. 302, CONGRESS DID NOT
CONTEMPLATE ANY SUCH CONTINGENCY AS THAT HERE INVOLVED.  IT INSISTS
THAT MRS. VAIL MADE NO TRANSFER BUT, IF ANY WAS MADE, THE COURT MADE
IT; THAT SHE HAD AND COULD HAVE NO MOTIVE IN RESPECT OF THE GIFT.  IN
ADDITION, IT URGES THAT, UNDER THE STATE LAW, THE COURT'S CONTROL OVER
THE ESTATE CEASES AT THE INCOMPETENT'S DEATH, AND THE COURT CANNOT MAKE
A WILL FOR HER OR IN ANY WISE INTERFERE WITH THE DEVOLUTION OF HER
ESTATE.  HENCE, IT CONCLUDES THAT TO SUGGEST THE COURT SANCTIONED
TRANSFERS OF A TESTAMENTARY CHARACTER IS TO ASSUME THAT IT EXCEEDED ITS
POWERS.  SUCH AN ASSUMPTION, SO PETITIONER SAYS, OUGHT NOT TO BE
INDULGED.  ON THE CONTRARY, IT SHOULD BE PRESUMED THAT THE COURT ACTED
WITHIN ITS GRANTED POWERS; THAT IS, AUTHORIZED TRANSFERS INTER VIVOS,
WITH NO TESTAMENTARY MOTIVE. 

THE GOVERNMENT, ON THE OTHER HAND, TAKES THE POSITION THAT NOTHING IN
THE LAW OF NEW YORK, AND NO AUTHORITY CITED BY THE PETITIONER,
PRECLUDES THE STATE COURT FROM MAKING AN ALLOWANCE IN CONTEMPLATION OF
DEATH IF, UPON THE RECORD MADE, THE COURT, PLACING ITSELF IN THE
INCOMPETENT'S POSITION ON THE SUPPOSITION THAT SHE WERE SANE AND
COMPETENT, CONCLUDES THAT SHE WOULD HAVE MADE THE TRANSFERS.  AND, IT
ADDS, THAT WHAT WAS DONE BY THE SUPREME COURT IN THIS CASE WAS NOT
APPEALED AND IS NOW BEYOND CORRECTION, IF ERRONEOUS, AND THAT THE
RECORDS AND ORDERS EVINCE AN UNDERSTANDING THAT THE CERTAINTY OF
CONTINUANCE OF DISABILITY UNTIL DEATH, THE FACT OF INTESTACY, AND THE
NATURAL EXPECTATIONS OF THE DISTRIBUTEES UNDER THE INTESTATE LAWS WERE
PREVALENT FACTORS IN MOVING THE COURT TO MAKE THE ORDERS IN QUESTION,
AND CHARACTERIZE THE COURT'S ACTION AS TAKEN IN CONTEMPLATION OF
DEATH.  THE GOVERNMENT SAYS THAT, AS THE COURT WAS REQUIRED TO, AND
DID, ACT AS THE DECEDENT WOULD HAVE ACTED IF COMPETENT, THIS CASE IS
NOT OUTSIDE THE TERMS OF SEC. 302(C) BUT, ON THE CONTRARY, IN
CONTEMPLATION OF LAW, THE DECEDENT DID MAKE THE TRANSFERS IN QUESTION. 

THE ISSUE IS A NARROW ONE.  LITERALLY MRS. VAIL NEITHER MADE THE
TRANSFERS NOR DID SHE HAVE ANY MOTIVE WITH RESPECT TO THEM.  BUT A
COURT STOOD IN HER PLACE AND UNQUESTIONABLY HAD THE FUNCTION OF
EFFECTUATING A TRANSFER OF HER PROPERTY AND OF DETERMINING WHAT MOTIVE
OR PURPOSE WOULD HAVE ACTUATED HER HAD SHE BEEN COMPETENT TO ACT.  IT
SEEMS TO US THAT IT IS STICKING IN THE BARK TO SAY THAT, IN THE
CIRCUMSTANCES, THE TRANSFERS ARE NOT WITHIN THE SECTION BECAUSE
CONGRESS DID NOT ADD A PHRASE TO THE EFFECT THAT WHERE A COURT MADE THE
TRANSFER, ACTING IN LIEU OF THE INCOMPETENT OWNER, SUCH A TRANSFER
SHOULD BE GOVERNED BY THE STATUTE. 

WE HOLD, THEREFORE, THAT WHERE, AS IN NEW YORK, THE COURT IS TO
SUBSTITUTE ITSELF AS NEARLY AS MAY BE FOR THE INCOMPETENT, AND TO ACT
UPON THE SAME MOTIVES AND CONSIDERATIONS AS WOULD HAVE MOVED HER, THE
TRANSFER IS, IN LEGAL EFFECT, HER ACT AND THE MOTIVE IS HERS. 

THIS BEING SO, THE ONLY REMAINING QUESTION IS WHETHER THE PROOF WAS
SUFFICIENT TO OVERCOME THE PRESUMPTION ARISING FROM THE COMMISSIONER'S
DETERMINATION THAT THE TRANSFERS WERE MADE IN CONTEMPLATION OF DEATH. 
THE APPLICABLE TEST IS THAT STATED IN UNITED STATES V. WELLS, 283 U.S.
102.  THIS IS WHETHER THE THOUGHT OF DEATH IS THE IMPELLING CAUSE OF
THE TRANSFER.  AS RESPECTS THE DESCENDANTS OF MRS. VAIL, IT WOULD SEEM
CLEAR ENOUGH THAT THERE WAS NO DOMINANT MOTIVE FOR THE TRANSFER OTHER
THAN THE THOUGHT THAT, AS THEY WOULD INHERIT HER ESTATE, AND AS THERE
WAS A LARGE ACCUMULATION OF UNNEEDED INCOME, THEY MIGHT AS WELL RECEIVE
SUBSTANTIAL PORTIONS NOW AS AWAIT HER DEATH TO ENJOY THEIR
INHERITANCE.  THE FACT THAT THESE BENEFICIARIES DID NOT STAND IN NEED
OF THE MONEY, THE FACT THAT THE INCREASE GRANTED AT THE SECOND HEARING
WAS MADE RETROACTIVE, AND THAT THE PAST INSTALMENTS WERE PAID IN A LUMP
SUM, THE ARGUMENTS OF COUNSEL IN BOTH HEARINGS THAT THE ONLY REASON FOR
GRANTING THE ALLOWANCES TO MRS. VAIL'S DESCENDANTS WAS THAT THEY
INEVITABLY WOULD DIVIDE HER ESTATE AMONGST THEM, AND THE RECITALS OF
THE COURT ORDERS, TO WHICH REFERENCE HAS BEEN MADE, ALL GO TO CONFIRM,
RATHER THAN TO UNDERMINE, THE COMMISSIONER'S DETERMINATION. 

WE THINK THE DISTRICT COURT WAS RIGHT IN HOLDING THAT, TO THE EXTENT
OF $6,000 PER ANNUM, WHICH WAS THE SUM MRS. VAIL, WHEN COMPETENT, HAD
REGULARLY ALLOWED EACH OF HER DAUGHTERS, THE TRANSFERS FALL WITHOUT THE
TERMS OF SEC. 302(C), BUT THAT THE BALANCE OF THE PAYMENTS TO HER
DESCENDANTS FALLS WITHIN ITS SWEEP. 

A DIFFERENT QUESTION IS PRESENTED RESPECTING THE ALLOWANCES TO
COLLATERALS.  IT APPEARS THAT THEY WERE IN NEED OF FUNDS FOR THEIR
MAINTENANCE AND SUPPORT, AND IT IS OBVIOUS THAT NO PAYMENTS TO THEM
COULD BE ON ACCOUNT OF ANY SHARE OF THEIR SISTER'S INTESTATE ESTATE. 
THE ALLOWANCES HAVE THE COLOR OF CURRENT PAYMENTS FOR SUPPORT AND THEY
WERE AUTHORIZED BECAUSE THE COURT CONCLUDED THAT, IF SANE AND COGNIZANT
OF THE SITUATION, MRS. VAIL WOULD HAVE MADE THEM.  THESE CONSIDERATIONS
LEAD TO THE CONCLUSION THAT THE COMMISSIONER'S DETERMINATION CONCERNING
THEM IS REBUTTED AND THAT THEY SHOULD NOT HAVE BEEN INCLUDED IN THE
DECEDENT'S GROSS ESTATE.  TO THE EXTENT INDICATED THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS IS REVERSED.  SO ORDERED. 

FN1  INTERNAL REVENUE CODE SEC. 811(C), 26 U.S.C. SEC. 811(C). 

FN2  43 F.SUPP.  790. 

FN3  142 F.2D 599. 
..END :










BLAIR V. B. & O.R. CO., 323 U.S. 600 


NO. 265.  ARGUED JANUARY 2, 3, 1945.  - DECIDED JANUARY 29, 1945.  - 349
PA. 436, 37 A.2D 736, REVERSED. 


1.  IN THIS SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT TO RECOVER
DAMAGES FOR PERSONAL INJURIES ALLEGED TO HAVE RESULTED FROM NEGLIGENCE
OF THE EMPLOYER IN FAILING TO PROVIDE ADEQUATE EQUIPMENT AND SUFFICIENT
COMPETENT HELP, AND FROM NEGLIGENCE OF FELLOW SERVANTS, THE EVIDENCE
WAS SUFFICIENT TO GO TO THE JURY ON THE ISSUE OF NEGLIGENCE, AND THE
ISSUE SHOULD BE DETERMINED BY THE JURY AND NOT BY THE COURT.  P. 604. 

2.  IN DETERMINING WHETHER THERE WAS NEGLIGENCE, THE EMPLOYER'S
CONDUCT MAY BE VIEWED AS A WHOLE, ESPECIALLY WHERE THE SEVERAL ELEMENTS
FROM WHICH NEGLIGENCE MIGHT BE INFERRED ARE SO CLOSELY INTERWOVEN AS TO
FORM A SINGLE PATTERN AND WHERE EACH IMPARTS CHARACTER TO THE OTHERS. 
P. 604. 

3.  UNDER THE CIRCUMSTANCES OF THIS CASE, WHERE THE EMPLOYEE
RECOGNIZED THE DANGER IN THE MANNER OF MOVING HEAVY PIPE BUT WAS
COMMANDED TO GO AHEAD, HE CAN NOT BE HELD TO HAVE ASSUMED THE RISK.  P.
605. 

4.  IT IS UNNECESSARY IN THIS CASE TO CONSIDER WHETHER THE AMENDMENT
OF THE EMPLOYERS' LIABILITY ACT WHICH ABOLISHED THE DEFENSE OF
ASSUMPTION OF RISK IS APPLICABLE TO CAUSES OF ACTION WHICH AROSE PRIOR
TO THE EFFECTIVE DATE OF THE AMENDMENT.  P. 605. 

BLAIR V. BALTIMORE & OHIO RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

CERTIORARI, POST, P. 688, TO REVIEW A JUDGMENT WHICH, UPON APPEALS
FROM ORDERS OF THE TRIAL COURT, DENIED RECOVERY IN A SUIT UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A JURY IN THE COMMON PLEAS COURT OF ALLEGHENY COUNTY, PENNSYLVANIA,
AWARDED THE PETITIONER A VERDICT FOR $12,000 DAMAGES FOR PERSONAL
INJURIES IN HIS ACTION AGAINST THE RESPONDENT RAILROAD UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C., SEC. 51 ET SEQ. THAT ACT
AUTHORIZES AN EMPLOYEE TO RECOVER FOR SUCH INJURIES IF THEY RESULT "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  ...  APPLIANCES  ...  OR OTHER
EQUIPMENT."  THE COMPLAINT SET OUT IN GREAT DETAIL THE EVENTS LEADING
TO THE INJURY AND ALLEGED THAT THE INJURY WAS THE RESULT OF THE
DEFENDANT'S NEGLIGENCE IN FAILING, UNDER THE CIRCUMSTANCES NARRATED, TO
PROVIDE PETITIONER WITH REASONABLY SUITABLE TOOLS AND APPLIANCES, A
REASONABLY SAFE PLACE IN WHICH TO WORK, REASONABLY SUFFICIENT AND
COMPETENT HELP TO DO THE WORK, AND THE NEGLIGENCE OF THE RESPONDENT'S
EMPLOYEES WHO ASSISTED HIM IN DOING THE WORK.  RESPONDENT MOVED FOR
JUDGMENT NOTWITHSTANDING THE VERDICT ON THE GROUND THAT THERE WAS NO
EVIDENCE TO PROVE ANY NEGLIGENCE ON ITS PART.  THIS MOTION WAS DENIED. 
ALTHOUGH THE TRIAL JUDGE THOUGHT THE VERDICT WAS "JUST AND REASONABLE,"
RESPONDENT'S MOTION FOR NEW TRIAL WAS GRANTED, ON THE GROUND THAT WHILE
THE TESTIMONY WAS SUFFICIENT TO SUPPORT A FINDING THAT THE NEGLIGENCE
OF RESPONDENT'S EMPLOYEES CONTRIBUTED TO THE INJURY, IT WAS NOT
SUFFICIENT TO SHOW THAT THE INJURY RESULTED FROM DEFENDANT'S FAILURE TO
PROVIDE ADEQUATE EQUIPMENT, OR SUFFICIENT AND COMPETENT HELP.  BOTH
PARTIES APPEALED TO THE PENNSYLVANIA SUPREME COURT, WHICH REVERSED,
HOLDING THAT PETITIONER HAD ASSUMED THE RISK OF INJURY BY REMAINING IN
THE EMPLOYMENT AND THAT THERE WAS NO EVIDENCE TO SUPPORT NEGLIGENCE IN
ANY RESPECT.  349 PA. 436, 37 A.2D 736. 

TO DEPRIVE RAILROAD "WORKERS OF THE BENEFIT OF A JURY TRIAL IN CLOSE
OR DOUBTFUL CASES IS TO TAKE AWAY A GOODLY PORTION OF THE RELIEF WHICH
CONGRESS HAS AFFORDED THEM."  BAILEY V. CENTRAL VERMONT R. CO., 319
U.S. 350, 354.  BECAUSE IMPORTANT RIGHTS UNDER THE ACT WERE INVOLVED,
WE GRANTED CERTIORARI. 

DESPITE CONFLICTING EVIDENCE, THERE WAS SUFFICIENT EVIDENCE TO
JUSTIFY THE JURY IN FINDING THAT THE INJURY WAS INFLICTED UNDER THESE
CIRCUMSTANCES.  PETITIONER'S DUTIES WERE TO LOAD AND UNLOAD INBOUND AND
OUTBOUND FREIGHT.  IN UNLOADING A CAR STANDING AT THE PLATFORM ADJACENT
TO RESPONDENT'S WAREHOUSE, PETITIONER CAME TO THREE 10-INCH SEAMLESS
STEEL TUBES, APPROXIMATELY 30 FEET LONG AND WEIGHING SLIGHTLY MORE THAN
A THOUSAND POUNDS EACH.  THE PIPES WERE GREASED AND SLICK.  THE
PETITIONER WENT TO HIS SUPERIOR, INFORMED HIM THAT THE PIPES WERE TOO
HEAVY FOR HIM TO MOVE AND SUGGESTED THAT IT WAS NOT CUSTOMARY FOR THE
RAILROAD TO UNLOAD PIPES OF THIS KIND AT ITS WAREHOUSE, BUT TO SEND THE
CAR DIRECTLY TO THE CONSIGNEE'S PLACE OF BUSINESS WHERE IT HAD PROPER
EQUIPMENT FOR UNLOADING HEAVY MATERIAL.  THIS SUGGESTION WAS REJECTED
AND PETITIONER WAS THEN TOLD TO GET MR. MILLER, THE CAR INSPECTOR, AND
MR. FANNO, THE SECTION MAN, TO HELP HIM UNLOAD. 

PETITIONER'S INSISTENCE THAT THE THREE COULD NOT UNLOAD THE HEAVY
PIPES WAS OVERRIDDEN, AND HE WAS THEN TOLD TO GO AHEAD AND DO THE WORK
OR THEY "WOULD GET SOMEBODY ELSE THAT WOULD."  UNDER THESE
CIRCUMSTANCES, PETITIONER UNDERTOOK TO UNLOAD THE PIPES AND CARRY THEM
THROUGH THE WAREHOUSE TO PLACE IN THE CONSIGNEE'S TRUCK WHICH HAD
BACKED UP TO THE WAREHOUSE PLATFORM ON THE OPPOSITE SIDE FROM THE
RAILROAD CAR.  THE BEST EQUIPMENT AVAILABLE FOR MOVING THE PIPES WAS A
"NOSE TRUCK" OF THE KIND COMMONLY USED IN RAILROAD STATIONS TO MOVE
FREIGHT AND LUGGAGE.  IT WAS ABOUT FIVE FEET LONG AND TWO FEET HIGH,
CONSISTING OF A FLAT METAL FRAME, WITH AN UPRIGHT FLANGE AND TWO WHEELS
AT ONE END AND WHEELBARROW HANDLES AT THE OTHER.  THE PROBLEM WAS TO
BALANCE THREE GREASED, 1000-POUND, 30-FOOT STEEL TUBES ON THIS TRUCK,
MOVE THEM ACROSS TWO PLATFORMS THROUGH THE WAREHOUSE AND PLACE THEM IN
THE CONSIGNEE'S TRUCK.  THE MEN TOOK THE NOSE TRUCK INTO THE CAR,
MANAGED TO GET THE FIRST PIPE LENGTHWISE ON IT, WORKED IT THROUGH THE
CAR DOOR TO THE PLATFORM OVER A STEEL BRIDGE CONNECTING THE CAR AND THE
PLATFORM, AND THEN CARRIED IT TO THE WAITING TRUCK.  PETITIONER HELD
ONE HANDLE OF THE NOSE TRUCK WITH ONE HAND AND THE STEEL TUBE WITH THE
OTHER.  MILLER OCCUPIED THE SAME POSITION AS TO THE OTHER HANDLE AND
THE PIPE.  FANNO HELD THE PIPE AND THE TRUCK AT ITS WHEEL END.  THEY
WERE ALL NECESSARILY CROUCHING, SINCE THE TRUCK WAS ONLY TWO FEET HIGH
WHEN MOVED IN A LEVEL POSITION, AS IT HAD TO BE, TO KEEP THE TUBE FROM
SLIPPING OFF.  THE FIRST TUBE WAS SUCCESSFULLY MOVED.  WHILE THEY WERE
ATTEMPTING TO MOVE THE SECOND TUBE IN THE SAME MANNER, IT SLIPPED. 
FANNO AND MILLER RELEASED THEIR HOLDS, BUT PETITIONER DID NOT.  THE
HEAVY TUBE IN SLIPPING CAUSED THE TRUCK TO KICK BACK RESULTING IN
PETITIONER'S INJURY. 

IN THE PETITIONER'S FOUR-YEAR SERVICE THIS WAS THE FIRST OCCASION
THAT SUCH HEAVY PIPE HAD BEEN MOVED AT THE WAREHOUSE.  FANNO, AGED 60,
AND MILLER, AGED 68, HAD NEVER BEFORE ASSISTED PETITIONER IN SUCH A
MOVEMENT; THEIR DUTIES WERE ENTIRELY DIFFERENT.  THE EVIDENCE INDICATED
THAT THE IMMEDIATE CAUSE OF THE GREASY PIPE'S SLIPPING AS IT DID WAS
EITHER (1) AN UNEVEN PLACE ON THE WAREHOUSE FLOOR DUE TO ITS HAVING
SUNKEN IN; OR (2) PUSHING THE NOSE TRUCK AGAINST THE STANDING COMPANY
TRUCK WITH SUCH FORCE AS TO MAKE THE TUBE MOVE WITH GREAT SUDDENNESS. 
THE FACT THAT FANNO AND MILLER RELEASED THEIR GRIPS AFTER IT BEGAN TO
SLIP ALSO CONTRIBUTED TO THE SUDDENNESS AND FORCE OF THE KICKBACK OF
THE NOSE TRUCK WHICH CAUSED THE PETITIONER'S INJURY. 

WE THINK THERE WAS SUFFICIENT EVIDENCE TO SUBMIT TO THE JURY THE
QUESTION OF NEGLIGENCE POSED BY THE COMPLAINT.  THE DUTY OF THE
EMPLOYER "BECOMES 'MORE IMPERATIVE' AS THE RISK INCREASES."  BAILEY V.
CENTRAL VERMONT R. CO., 319 U.S. 350, 352, 353.  SEE ALSO TILLER V.
ATLANTIC COAST LINE, 318 U.S. 54, 67.  THE NEGLIGENCE OF THE EMPLOYER
MAY BE DETERMINED BY VIEWING ITS CONDUCT AS A WHOLE.  UNION PACIFIC R.
CO. V. HADLEY, 246 U.S. 330, 332, 333.  AND ESPECIALLY IS THIS TRUE IN
A CASE SUCH AS THIS, WHERE THE SEVERAL ELEMENTS FROM WHICH NEGLIGENCE
MIGHT BE INFERRED ARE SO CLOSELY INTERWOVEN AS TO FORM A SINGLE
PATTERN, AND WHERE EACH IMPARTS CHARACTER TO THE OTHERS. 

THE NATURE OF THE DUTY WHICH THE PETITIONER WAS COMMANDED TO
UNDERTAKE, THE DANGERS OF MOVING A GREASED, 1000-POUND STEEL TUBE, 30
FEET IN LENGTH, ON A 5-FOOT TRUCK, THE AREA OVER WHICH THAT TRUCK WAS
COMPELLED TO BE MOVED, THE SUITABLENESS OF THE TOOLS USED IN AN
EXTRAORDINARY MANNER TO ACCOMPLISH A NOVEL PURPOSE, THE NUMBER OF MEN
ASSIGNED TO ASSIST HIM, THEIR EXPERIENCE IN SUCH WORK AND THEIR ABILITY
TO PERFORM THE DUTIES AND THE MANNER IN WHICH THEY PERFORMED THOSE
DUTIES - ALL OF THESE RAISED QUESTIONS APPROPRIATE FOR A JURY TO
APPRAISE IN CONSIDERING WHETHER OR NOT THE INJURY WAS THE RESULT OF
NEGLIGENCE AS ALLEGED IN THE COMPLAINT.  WE CANNOT SAY AS A MATTER OF
LAW THAT THE RAILROAD COMPLIED WITH ITS DUTIES IN A REASONABLY CAREFUL
MANNER UNDER THE CIRCUMSTANCES HERE, NOR THAT THE CONDUCT WHICH THE
JURY MIGHT HAVE FOUND TO BE NEGLIGENT DID NOT CONTRIBUTE TO
PETITIONER'S INJURY "IN WHOLE OR IN PART."  CONSEQUENTLY WE THINK THE
JURY, AND NOT THE COURT, SHOULD FINALLY DETERMINE THESE ISSUES. 

THE COURT BELOW, HOWEVER, THOUGHT THAT THE PLAINTIFF SHOULD NOT
RECOVER BECAUSE HE HAD ASSUMED THE RISK OF THIS DANGER.  IT IS TO BE
NOTED THAT AT THE TIME THIS CASE WAS TRIED CONGRESS HAD PASSED AN ACT
WHICH COMPLETELY ABOLISHED THE DEFENSE OF ASSUMPTION OF RISK.  53 STAT.
1404.  TILLER V. ATLANTIC COAST LINE, SUPRA.  WE NEED NOT CONSIDER
WHETHER THIS STATUTE APPLIES TO THIS CASE, SINCE WE ARE OF OPINION THAT
IT CANNOT BE HELD AS A MATTER OF LAW THAT THE PETITIONER ASSUMED THE
RISKS INCIDENT TO MOVING THE STEEL TUBES. 

IT IS TRUE THAT THE PETITIONER UNDERTOOK TO DO THE WORK AFTER HE HAD
COMPLAINED TO THE COMPANY THAT THE PIPE SHOULD NOT BE MOVED IN THE
MANNER IT WAS.  BUT HE WAS COMMANDED TO GO AHEAD BY HIS SUPERIOR. 
UNDER THESE CIRCUMSTANCES IT CANNOT BE HELD AS A MATTER OF LAW THAT HE
VOLUNTARILY ASSUMED ALL THE RISKS OF INJURY.  THE COURT BELOW CITED BY
WAY OF COMPARISON ITS HOLDING IN A FORMER DECISION, GUERIERRO V.
READING CO., 346 PA. 187, 29 A.2D 510.  THERE IT HAD ANNOUNCED THE RULE
THAT AN EMPLOYEE HAS A DUTY TO QUIT HIS JOB RATHER THAN TO DO SOMETHING
WHICH HE KNOWS, OR OUGHT TO KNOW, IS DANGEROUS.  THIS COURT DOES NOT
APPLY THE DOCTRINE OF ASSUMPTION OF RISK SO RIGOROUSLY.  IN GREAT
NORTHERN R. CO. V. LEONIDAS, 305 U.S. 1, WE AFFIRMED THE JUDGMENT OF
THE SUPREME COURT OF MONTANA, 105 MONT. 302, 72 P.2D 1007.  IN ITS
OPINION THE MONTANA COURT STATED: "WE ARE NOT ABLE TO SAY THAT THE
HAZARD OF CARRYING THE (RAILROAD) TIE WAS SO OPEN AND OBVIOUS THAT THE
PLAINTIFF, AS A MATTER OF LAW, MUST BE HELD TO HAVE ASSUMED THE RISK OF
INJURY BY YIELDING OBEDIENCE TO THE COMMAND OF THE FOREMAN."  SO HERE,
WE DO NOT THINK THAT THIS PETITIONER CAN BE HELD TO HAVE ASSUMED THE
RISK BY OBEYING THE COMMAND OF HIS EMPLOYER'S FOREMAN TO GO ON WITH HIS
JOB.  THE JUDGMENT OF THE SUPREME COURT OF PENNSYLVANIA IS REVERSED,
AND REMANDED TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS ARE OF THE OPINION THAT THE
JUDGMENT SHOULD BE AFFIRMED. 
..END :


















WEILER V. UNITED STATES, 323 U.S. 606 


NO. 340.  ARGUED JANUARY 10, 11, 1945.  - DECIDED JANUARY 29, 1945.  -
143 F.2D 204, REVERSED. 


1.  THE COURT ADHERES TO THE RULE WHICH BARS A CONVICTION OF PERJURY
ON THE UNCORROBORATED TESTIMONY OF A SINGLE WITNESS.  HAMMER V. UNITED
STATES, 271 U.S. 620.  P. 609. 

2.  IN A PROSECUTION FOR PERJURY, THE FEDERAL DISTRICT COURT ERRED IN
REFUSING THE DEFENDANT'S REQUESTED INSTRUCTION TO THE EFFECT THAT, IN
ORDER TO CONVICT, THE FALSITY OF THE STATEMENT MADE UNDER OATH MUST BE
ESTABLISHED BY THE TESTIMONY OF TWO INDEPENDENT WITNESSES OR BY ONE
WITNESS AND CORROBORATING CIRCUMSTANCES.  P. 610. 

3.  THIS COURT IS UNABLE TO SAY THAT THE ERROR OF THE DISTRICT COURT
IN REFUSING THE REQUESTED INSTRUCTION WAS HARMLESS.  GOINS V. UNITED
STATES, 99 F.2D 147, DISTINGUISHED.  P. 611. 

WEILER V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 694, TO REVIEW THE AFFIRMANCE OF A CONVICTION OF
PERJURY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS COURT STATED IN HAMMER V. UNITED STATES, 271 U.S. 620, 626, THAT
"THE GENERAL RULE IN PROSECUTIONS FOR PERJURY IS THAT THE
UNCORROBORATED OATH OF ONE WITNESS IS NOT ENOUGH TO ESTABLISH THE
FALSITY OF THE TESTIMONY OF THE ACCUSED SET FORTH IN THE INDICTMENT." 
THE QUESTION HERE IS WHETHER IT IS REVERSIBLE ERROR TO REFUSE TO CHARGE
THE JURY TO THIS EFFECT. 

THE PETITIONER WAS CONVICTED OF PERJURY IN A FEDERAL DISTRICT COURT. 
FN1  IN A PRIOR CRIMINAL PROCEEDING FOR VIOLATION OF OFFICE OF PRICE
ADMINISTRATION REGULATIONS HE HAD TESTIFIED THAT HE HAD NEITHER BOUGHT
NOR HAD IN HIS POSSESSION IN MARCH, 1942, CERTAIN AUTOMOBILE TIRES.  HE
FURTHER TESTIFIED THAT ALTHOUGH HE HAD SIGNED A NOTARIZED LETTER IN
WHICH HE STATED THAT HE HAD PURCHASED THE TIRES, HE WAS NOT IN REALITY
THE PURCHASER, BUT HAD MERELY LENT THE MONEY FOR THEIR PURCHASE, AND
HAD SIGNED THE LETTER AS AN ACCOMMODATION.  THE JURY ACQUITTED HIM AND
HE WAS THEN INDICTED FOR PERJURY.  THE INDICTMENT CHARGED THAT HIS
TESTIMONY WITH REFERENCE TO THE TIRE TRANSACTION WAS FALSE.  IN THE
PERJURY TRIAL THE PETITIONER REITERATED HIS FORMER TESTIMONY AS TO THE
TIRE TRANSACTION.  SEVERAL GOVERNMENT WITNESSES GAVE TESTIMONY FROM
WHICH THE JURY COULD HAVE FOUND THAT PETITIONER WAS IN FACT THE
PURCHASER. 

WHEN THE EVIDENCE WAS COMPLETED, PETITIONER REQUESTED THE TRIAL JUDGE
TO GIVE THE FOLLOWING INSTRUCTION TO THE JURY: 

"THE GOVERNMENT MUST ESTABLISH THE FALSITY OF THE STATEMENT ALLEGED
TO HAVE BEEN MADE BY THE DEFENDANT UNDER OATH, BY THE TESTIMONY OF TWO
INDEPENDENT WITNESSES OR ONE WITNESS AND CORROBORATING CIRCUMSTANCES. 
UNLESS THAT HAS BEEN DONE, YOU MUST FIND (THE) DEFENDANT NOT GUILTY." 
THIS INSTRUCTION WAS REFUSED, AND THE TRIAL JUDGE IN HIS ORAL CHARGE
COMPLETELY OMITTED ANY REFERENCE TO THE "TWO WITNESS RULE" IN PERJURY
CASES.  THE PETITIONER WAS CONVICTED, AND THE CIRCUIT COURT OF APPEALS
AFFIRMED ON THE GROUND THAT IT WAS FOR THE COURT TO DETERMINE WHETHER
THE QUANTITATIVE RULE OF EVIDENCE IN PERJURY HAD BEEN SATISFIED, THAT
IT HAD BEEN SATISFIED IN THIS CASE, AND THAT CONSEQUENTLY THE DISTRICT
COURT HAD PROPERLY REFUSED THE REQUESTED CHARGE.  143 F.2D 204.  OTHER
CIRCUITS HAVE HELD THAT SIMILAR CHARGES SHOULD BE GIVEN.  PAWLEY V.
UNITED STATES, 47 F.2D 1024, 1026, (C.C.A. 9); ALLEN V. UNITED STATES,
194 F. 664, 668, (C.C.A. 4). 

IN GRANTING CERTIORARI WE LIMITED REVIEW SOLELY TO THE QUESTION OF
WHETHER THE TRIAL COURT ERRED IN DENYING THIS CHARGE. 

FIRST.  THE GOVERNMENT ASKS THAT WE REEXAMINE AND ABANDON THE RULE
WHICH BARS A CONVICTION OF PERJURY ON THE UNCORROBORATED TESTIMONY OF A
SINGLE WITNESS.  THE ARGUMENT IS THAT WHILE THIS QUANTITATIVE RULE AS
PARTICULARLY APPLIED TO PERJURY CASES MAY HAVE BEEN SUITED TO THE NEEDS
OF THE 18TH CENTURY, IT HAS LONG SINCE OUTLIVED ITS USEFULNESS, THAT IT
IS AN INCONGRUITY IN OUR MODERN SYSTEM OF JUSTICE, AND THAT IT RAISES
AN UNJUSTIFIABLE BARRIER TO CONVICTIONS FOR PERJURY. 

OUR SYSTEM OF JUSTICE RESTS ON THE GENERAL ASSUMPTION THAT THE TRUTH
IS NOT TO BE DETERMINED MERELY BY THE NUMBER OF WITNESSES ON EACH SIDE
OF A CONTROVERSY.  IN GAUGING THE TRUTH OF CONFLICTING EVIDENCE, A JURY
HAS NO SIMPLE FORMULATION OF WEIGHTS AND MEASURES UPON WHICH TO RELY. 
THE TOUCHSTONE IS ALWAYS CREDIBILITY; THE ULTIMATE MEASURE OF
TESTIMONIAL WORTH IS QUALITY AND NOT QUANTITY.  TRIERS OF FACT IN OUR
FACT-FINDING TRIBUNALS ARE, WITH RARE EXCEPTIONS, FREE IN THE EXERCISE
OF THEIR HONEST JUDGMENT TO PREFER THE TESTIMONY OF A SINGLE WITNESS TO
THAT OF MANY. 

THE SPECIAL RULE WHICH BARS CONVICTION FOR PERJURY SOLELY UPON THE
EVIDENCE OF A SINGLE WITNESS IS DEEPLY ROOTED IN PAST CENTURIES.  FN2
THAT IT RENDERS SUCCESSFUL PERJURY PROSECUTION MORE DIFFICULT THAN IT
OTHERWISE WOULD BE IS OBVIOUS, AND MOST CRITICISM OF THE RULE HAS
STEMMED FROM THIS RESULT.  IT IS ARGUED THAT SINCE EFFECTIVE
ADMINISTRATION OF JUSTICE IS LARGELY DEPENDENT UPON TRUTHFUL TESTIMONY,
SOCIETY IS ILL-SERVED BY AN "ANACHRONISTIC" RULE WHICH TENDS TO BURDEN
AND DISCOURAGE PROSECUTIONS FOR PERJURY.  PROPONENTS OF THE RULE, ON
THE OTHER HAND, CONTEND THAT SOCIETY IS WELL-SERVED BY SUCH
CONSEQUENCE.  LAWSUITS FREQUENTLY ENGENDER IN DEFEATED LITIGANTS SHARP
RESENTMENTS AND HOSTILITIES AGAINST ADVERSE WITNESSES, AND IT IS
ARGUED, NOT WITHOUT PERSUASIVENESS, THAT RULES OF LAW MUST BE SO
FASHIONED AS TO PROTECT HONEST WITNESSES FROM HASTY AND SPITEFUL
RETALIATION IN THE FORM OF UNFOUNDED PERJURY PROSECUTIONS. 

THE CRUCIAL ROLE OF WITNESSES COMPELLED TO TESTIFY IN TRIALS AT LAW
HAS IMPELLED THE LAW TO GRANT THEM SPECIAL CONSIDERATIONS.  IN ORDER
THAT WITNESSES MAY BE FREE TO TESTIFY WILLINGLY, THE LAW HAS
TRADITIONALLY AFFORDED THEM THE PROTECTION OF CERTAIN PRIVILEGES, SUCH
AS, FOR EXAMPLE, IMMUNITY FROM SUITS FOR LIBEL SPRINGING FROM THEIR
TESTIMONY N3.  SINCE EQUALLY HONEST WITNESSES MAY WELL HAVE DIFFERING
RECOLLECTIONS OF THE SAME EVENT, WE CANNOT REJECT AS WHOLLY
UNREASONABLE THE NOTION THAT A CONVICTION FOR PERJURY OUGHT NOT TO REST
ENTIRELY UPON "AN OATH AGAINST AN OATH."  THE RULE MAY ORIGINALLY HAVE
STEMMED FROM QUITE DIFFERENT REASONING, BUT IMPLICIT IN ITS EVOLUTION
AND CONTINUED VITALITY HAS BEEN THE FEAR THAT INNOCENT WITNESSES MIGHT
BE UNDULY HARASSED OR CONVICTED IN PERJURY PROSECUTIONS IF A LESS
STRINGENT RULE WERE ADOPTED. 

WHETHER IT LOGICALLY FITS INTO OUR TESTIMONIAL PATTERN OR NOT, THE
GOVERNMENT HAS NOT ADVANCED SUFFICIENTLY COGENT REASONS TO CAUSE US TO
REJECT THE RULE.  AS WE SAID IN HAMMER V. UNITED STATES, SUPRA, 626
627, "THE APPLICATION OF THAT RULE IN FEDERAL AND STATE COURTS IS WELL
NIGH UNIVERSAL.  THE RULE HAS LONG PREVAILED, AND NO ENACTMENT IN
DEROGATION OF IT HAS COME TO OUR ATTENTION.  THE ABSENCE OF SUCH
LEGISLATION INDICATES THAT IT IS SOUND AND HAS BEEN FOUND SATISFACTORY
IN PRACTICE."  FN4 

SECOND.  THE COURT BELOW HELD, AND THE GOVERNMENT ARGUES HERE, THAT
IT IS SOLELY THE FUNCTION OF THE JUDGE FINALLY TO DETERMINE WHETHER A
SINGLE WITNESS AND SUFFICIENT CORROBORATIVE EVIDENCE HAVE BEEN
PRESENTED TO SUSTAIN A CONVICTION.  TWO ELEMENTS MUST ENTER INTO A
DETERMINATION THAT CORROBORATIVE EVIDENCE IS SUFFICIENT:  (1) THAT THE
EVIDENCE, IF TRUE, SUBSTANTIATES THE TESTIMONY OF A SINGLE WITNESS WHO
HAS SWORN TO THE FALSITY OF THE ALLEGED PERJURIOUS STATEMENT; (2) THAT
THE CORROBORATIVE EVIDENCE IS TRUSTWORTHY.  TO RESOLVE THIS LATTER
QUESTION IS TO DETERMINE THE CREDIBILITY OF THE CORROBORATIVE
TESTIMONY, A FUNCTION WHICH BELONGS EXCLUSIVELY TO THE JURY.  FN5 THUS,
TO PERMIT THE JUDGE FINALLY TO PASS UPON THIS QUESTION WOULD ENABLE A
JURY TO CONVICT ON THE EVIDENCE OF A SINGLE WITNESS, EVEN THOUGH IT
BELIEVED, CONTRARY TO THE BELIEF OF THE TRIAL JUDGE, THAT THE
CORROBORATIVE TESTIMONY WAS WHOLLY UNTRUSTWORTHY.  SUCH A RESULT WOULD
DEFEAT THE VERY PURPOSE OF THE RULE, WHICH IS TO BAR A JURY FROM
CONVICTING FOR PERJURY ON THE UNCORROBORATED OATH OF A SINGLE WITNESS. 
IT IS THE DUTY OF THE TRIAL JUDGE, WHEN PROPERLY REQUESTED, TO INSTRUCT
THE JURY ON THIS ASPECT OF ITS FUNCTION, IN ORDER THAT IT MAY REACH A
VERDICT IN THE EXERCISE OF AN INFORMED JUDGMENT.  CF. BRUNO V. UNITED
STATES, 308 U.S. 287.  THE REFUSAL OF THE TRIAL JUDGE TO INSTRUCT THE
JURY AS REQUESTED WAS ERROR. 

THIRD.  IT IS ARGUED THAT THIS ERROR DID NOT PREJUDICE THE
DEFENDANT.  WE CANNOT SAY THAT IT DID NOT.  THE JURY CONVICTED WITHOUT
BEING INSTRUCTED THAT MORE THAN THE TESTIMONY OF A SINGLE WITNESS WAS
REQUIRED TO JUSTIFY THEIR VERDICT.  THIS WAS NO MERE "TECHNICAL" ERROR
RELATING TO THE "FORMALITIES AND MINUTIAE" OF THE TRIAL.  BRUNO V.
UNITED STATES, SUPRA, 293, 294.  WE ARE NOT AUTHORIZED TO LOOK AT THE
PRINTED RECORD, RESOLVE CONFLICTING EVIDENCE, AND REACH THE CONCLUSION
THAT THE ERROR WAS HARMLESS BECAUSE WE THINK THE DEFENDANT WAS GUILTY. 
THAT WOULD BE TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE JURY AND,
UNDER OUR SYSTEM OF JUSTICE, JURIES ALONE HAVE BEEN ENTRUSTED WITH THAT
RESPONSIBILITY.  NOR ARE WE COMPELLED TO CONCLUDE THAT THIS ERROR WAS
HARMLESS BECAUSE OF OUR ACTION IN GOINS V. UNITED STATES, 306 U.S. 622,
BY WHICH WE LEFT UNDISTURBED A HOLDING OF THE CIRCUIT COURT OF APPEALS
THAT GOINS, CONVICTED FOR PERJURY, HAD NOT BEEN PREJUDICED BY THE
REFUSAL OF A CHARGE ON THE TWO WITNESS RULE.  GOINS V. UNITED STATES,
99 F.2D 147.  THAT CASE WAS DECIDED ON THE BASIS OF ITS OWN PECULIAR
FACTS AND CANNOT BE EXTENDED TO THE FACTS OF THIS ONE.  REVERSED. 

FN1  18 U.S.C. 231 DEFINES THE FEDERAL OFFENSE OF PERJURY. 

FN2  WIGMORE ON EVIDENCE (THIRD EDITION) SECS. 2030-2044. 

FN3  SEE ALSO 8 WIGMORE, SUPRA, SEC. 2195G. 

FN4  AFTER A CAREFUL STUDY MADE BY A JOINT PARLIAMENTARY COMMITTEE,
LOOKING TO A CODIFICATION OF ENGLISH CRIMINAL LAWS, IT UNANIMOUSLY
RECOMMENDED AND PARLIAMENT PASSED THE FOLLOWING LAW: 

"A PERSON SHALL NOT BE LIABLE TO BE CONVICTED OF ANY OFFENCE AGAINST
THIS ACT, OR OF ANY OFFENCE DECLARED BY ANY OTHER ACT TO BE PERJURY OR
SUBORNATION OF PERJURY, OR TO BE PUNISHABLE AS PERJURY OR SUBORNATION
OF PERJURY SOLELY UPON THE EVIDENCE OF ONE WITNESS AS TO THE FALSITY OF
ANY STATEMENT ALLEGED TO BE FALSE."  PERJURY ACT, 1911, 1 & 2 GEO. V,
C. 6, SEC. 13, PUBLIC GENERAL ACTS, 1ST & 2ND GEO. V, 1911;
PARLIAMENTARY DEBATES, LORDS, VOL. VII, 1911, PP. 143-146; REPORTS FROM
THE JOINT SELECT COMMITTEE OF THE HOUSE OF LORDS AND THE HOUSE OF
COMMONS ON THE LICENSING (CONSOLIDATION) BILL AND THE PERJURY BILL
(H.L.), 1910, NO. 321, P. 62.  CF. STATE V. STOREY, 148 MINN. 398, 182
N.W. 613; MARVEL V. STATE, 33 DEL. 110, 131 A. 317. 

FN5  SEE STATE V. HILL, 223 N.C. 711, 28 S.E.2D 100; BROWN V. STATE,
101 TEX. CRIM. REP. 639, 644, 276 S.W. 929; CLOWER V. STATE, 151 ARK.
359, 236 S.W. 265; MADDEN V. STATE, 26 OKLA. CR. 251, 223 P. 716. 
..END :













U.S. V. PENNSYLVANIA R. CO., 323 U.S. 612 


ARGUED JANUARY 8, 9, 1945.  - DECIDED JANUARY 29, 1945.  - 55 F.SUPP. 
473, REVERSED IN PART. 


1.  UNDER THE TRANSPORTATION ACT OF 1940, THE INTERSTATE COMMERCE
COMMISSION HAS AUTHORITY, IN CONNECTION WITH THROUGH RAIL-WATER ROUTES,
TO REQUIRE A RAILROAD TO INTERCHANGE ITS CARS WITH A WATER CARRIER AND
TO ABROGATE A RULE OF AN ASSOCIATION OF RAILROADS PROHIBITING SUCH
INTERCHANGE.  PP. 615, 619. 

2.  THE AUTHORITY OF THE INTERSTATE COMMERCE COMMISSION TO REQUIRE A
RAILROAD TO INTERCHANGE ITS CARS WITH A WATER CARRIER EXTENDS TO
INTERSTATE MOVEMENTS OVER ROUTES WHICH ARE PARTLY OUTSIDE THE
TERRITORIAL WATERS OF THE UNITED STATES.  PP. 620, 622. 

3.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION FIXING, AS
REASONABLE COMPENSATION FOR THE USE BY A WATER CARRIER OF CARS OF
CONNECTING RAILROADS, $1.00 PER CAR PER DAY FOR SUCH PERIOD AS THE CARS
ARE IN THE WATER CARRIER'S ACTUAL POSSESSION, WAS SUPPORTED BY
SUBSTANTIAL EVIDENCE AND IS SUSTAINED.  P. 623. 

UNITED STATES ET AL. V. PENNSYLVANIA RAILROAD CO. ET AL. 

NO. 47.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT OF NEW JERSEY* . 

*TOGETHER WITH NO. 48, PENNSYLVANIA RAILROAD CO. ET AL. V. UNITED
STATES ET AL., ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT OF NEW JERSEY. 

CROSS APPEALS FROM A JUDGMENT OF A DISTRICT COURT OF THREE JUDGES
SETTING ASIDE IN PART AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

SEATRAIN LINES, INC., IS A COMMON CARRIER OF GOODS BY WATER.  IN
1929, ITS PREDECESSOR BEGAN TO CARRY GOODS FROM BELLE CHASSE,
LOUISIANA, TO HAVANA, CUBA.  EACH OF THE VESSELS USED WAS SO
CONSTRUCTED THAT IT COULD CARRY A NUMBER OF RAILROAD CARS, AND SPECIAL
EQUIPMENT WAS PROVIDED TO HOIST THESE CARS FROM ADJACENT TRACKS ON THE
DOCKS AND MOVE THEM BODILY INTO THE VESSELS.  IT WAS THEREBY RENDERED
UNNECESSARY FOR GOODS CARRIED TO THE PORTS IN RAILROAD CARS TO BE
UNLOADED FROM THE CARS AND CARRIED PIECEMEAL INTO THE VESSELS.  THIS
NEW METHOD OF TRANSPORTATION, SO THE INTERSTATE COMMERCE COMMISSION HAS
FOUND, WAS A GREAT IMPROVEMENT OVER THE OLD PRACTICE, LESS DESTRUCTIVE
TO THE GOODS, MORE ECONOMICAL AND MORE EFFICIENT.  226 I.C.C. 7, 20
21.  IN 1932, SEATRAIN DECIDED TO INITIATE A NEW INTERSTATE SERVICE
BETWEEN HOBOKEN, N. J. AND BELLE CHASSE, LOUISIANA, VIA HAVANA, CUBA,
AND THUS ENTERED INTO DIRECT COMPETITION WITH THE INTERSTATE
TRANSPORTATION OF FREIGHT BY RAILROADS.  DURING THE TIME SEATRAIN HAD
LIMITED ITS BUSINESS TO FOREIGN TRANSPORTATION, I.E., LOUISIANA TO
CUBA, THE NON-COMPETING RAILROADS FREELY PERMITTED IT THE USE OF THEIR
CARS.  SHORTLY AFTER IT BEGAN ITS INTERSTATE SERVICE, HOWEVER, THE
FOLLOWING RULE WAS PROMULGATED BY THE AMERICAN RAILWAY ASSOCIATION:
FN1  "CARS OF RAILWAY OWNERSHIP MUST NOT BE DELIVERED TO A STEAMSHIP,
FERRY OR BARGE LINE FOR WATER TRANSPORTATION WITHOUT PERMISSION OF THE
OWNER FILED WITH THE CAR SERVICE DIVISION."  THEREAFTER, SOME RAILROADS
CONTINUED TO PERMIT SEATRAIN TO USE THEIR CARS BUT OTHERS, INCLUDING
THE PARTIES TO THIS PROCEEDING, REFUSED TO DO SO.  NO RAILROADS
"REFUSED TO PERMIT DELIVERY OF THEIR CARS TO ANY OF THE OTHER ELEVEN
WATER LINES LISTED IN A CIRCULAR OF THE ASSOCIATION AS COMING WITHIN
THE INTENDMENT OF THE RULE."  206 I.C.C. 328, 337. 

A COMPLAINT WAS FILED WITH THE INTERSTATE COMMERCE COMMISSION. 
APPROPRIATE HEARINGS WERE CONDUCTED AND A SERIES OF FINDINGS AND
OPINIONS WERE ENTERED.  THE FINDINGS WERE THAT THE SOLE OBJECT OF THE
ASSOCIATION OF RAILROADS' RULE WAS TO PREVENT DIVERSION OF TRAFFIC FROM
THE RAILROADS TO SEATRAIN; THAT SEATRAIN, AS AN INTERSTATE WATER
CARRIER, WAS SUBJECT TO THE COMMISSION'S JURISDICTION; THAT ITS
INTERSTATE OPERATIONS WERE IN THE PUBLIC INTEREST AND OF ADVANTAGE TO
THE CONVENIENCE AND COMMERCE OF THE PUBLIC; THAT THE COMMISSION HAD
JURISDICTION TO REQUIRE THROUGH RAIL-WATER INTERSTATE ROUTES, AND,
WHERE SUCH THROUGH ROUTES WERE ESTABLISHED, TO REQUIRE RAILROADS TO
INTERCHANGE CARS WITH WATER CARRIERS, 195 I.C.C. 215; 206 I.C.C. 328. 
AN INITIAL ORDER OF THE COMMISSION REQUIRED THE RAILROADS TO ESTABLISH
CERTAIN THROUGH JOINT RAIL-WATER ROUTES WITH SEATRAIN.  SUCH THROUGH
INTERSTATE ROUTES TOGETHER WITH JOINT RATES WERE ESTABLISHED.  226
I.C.C. 7; 243 I.C.C. 199.  THE COMMISSION THEN HEARD EVIDENCE AND FOUND
THAT A PAYMENT OF $1.00 PER DAY WOULD BE A REASONABLE AMOUNT FOR
SEATRAIN TO PAY THE RAILROADS FOR THEIR CARS WHILE THEY WERE IN
SEATRAIN'S POSSESSION.  237 I.C.C. 97; 248 I.C.C. 109.  BASED ON ITS
FINDINGS THE COMMISSION ORDERED THE RAILROADS TO ABSTAIN FROM OBSERVING
AND ENFORCING RULES AND PRACTICES WHICH PROHIBITED THE INTERCHANGE OF
THEIR FREIGHT CARS FOR TRANSPORTATION BY SEATRAIN IN INTERSTATE
COMMERCE.  THE RAILROADS PROMPTLY BROUGHT THIS ACTION UNDER 28 U.S.C.
41(28), 47, TO SET ASIDE THE COMMISSION'S ORDER.  THE DISTRICT COURT
SET ASIDE THE ORDER INSOFAR AS IT REQUIRED RAILROADS TO INTERCHANGE
CARS DESTINED FOR CARRIAGE BY SEATRAIN OUTSIDE THE TERRITORIAL WATERS
OF THE UNITED STATES, BUT SUSTAINED IT IN ALL OTHER RESPECTS.  55
F.SUPP.  473.  BOTH SIDES APPEALED DIRECTLY TO THIS COURT AS AUTHORIZED
BY THE URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, 28 U.S.C. 47, 47A,
AND SEC. 238 OF THE JUDICIAL CODE, 28 U.S.C. 345, PAR. (4). 

FIRST.  IT IS CONTENDED THAT THE RAILROADS ARE UNDER NO DUTY TO
DELIVER THEIR CARS TO SEATRAIN AND THAT THE INTERSTATE COMMERCE
COMMISSION IS WITHOUT AUTHORITY TO REQUIRE THEM TO DO SO.  IT HAS LONG
BEEN HELD, AND IT IS NOT DENIED HERE, THAT SINCE THE PASSAGE OF THE
INTERSTATE COMMERCE ACT, RAILROADS MAY BE COMPELLED TO ESTABLISH
THROUGH ROUTES  FN2  AND TO INTERCHANGE THEIR CARS WITH EACH OTHER,
FN3  BOTH SUBJECT TO REASONABLE TERMS.  NOR IS IT DENIED THAT THE
RAILROADS ARE UNDER A LEGAL DUTY, ENFORCEABLE BY PROPER COMMISSION
ORDERS, TO ESTABLISH THROUGH ROUTES WITH CONNECTING WATER CARRIERS. 
FN4  THE NARROW CONTENTION IS THAT THE POWER GRANTED THE COMMISSION TO
REQUIRE THE ESTABLISHMENT AND OPERATION OF THROUGH RAIL-WATER ROUTES
DOES NOT EMPOWER IT TO REQUIRE A RAILROAD TO INTERCHANGE ITS CARS WITH
A WATER CARRIER.  SINCE THE COMMISSION'S ORDER WAS ENTERED AFTER
PASSAGE OF THE 1940 TRANSPORTATION ACT, 54 STAT. 898, THE QUESTION MUST
BE DECIDED UNDER THAT ACT.  ZIFFRIN, INC. V. UNITED STATES, 318 U.S.
73, 78. 

THERE IS NO LANGUAGE IN THE PRESENT ACT WHICH SPECIFICALLY COMMANDS
THAT RAILROADS MUST INTERCHANGE THEIR CARS WITH CONNECTING WATER
LINES.  WE CANNOT AGREE WITH THE CONTENTION THAT THE ABSENCE OF
SPECIFIC LANGUAGE INDICATES A PURPOSE OF CONGRESS NOT TO REQUIRE SUCH
AN INTERCHANGE.  TRUE, CONGRESS HAS SPECIFIED WITH PRECISE LANGUAGE
SOME OBLIGATIONS WHICH RAILROADS MUST ASSUME.  BUT ALL LEGISLATION
DEALING WITH THIS PROBLEM SINCE THE FIRST ACT IN 1887, 24 STAT. 379,
HAS CONTAINED BROAD LANGUAGE TO INDICATE THE SCOPE OF THE LAW.  THE
VERY COMPLEXITIES OF THE SUBJECT HAVE NECESSARILY CAUSED CONGRESS TO
CAST ITS REGULATORY PROVISIONS IN GENERAL TERMS.  CONGRESS HAS, IN
GENERAL, LEFT THE CONTENTS OF THESE TERMS TO BE SPELLED OUT IN
PARTICULAR CASES BY ADMINISTRATIVE AND JUDICIAL ACTION, AND IN THE
LIGHT OF THE CONGRESSIONAL PURPOSE TO FOSTER AN EFFICIENT AND FAIR
NATIONAL TRANSPORTATION SYSTEM.  CF. CHICAGO, R.I. & P.R. CO. V. UNITED
STATES, 274 U.S. 29, 36; INTERSTATE COMMERCE COMMISSION V. RAILWAY
LABOR EXECUTIVES ASSN., 315 U.S. 373, 376-377. 

THE 1940 TRANSPORTATION ACT IS DIVIDED INTO THREE PARTS, THE FIRST
RELATING TO RAILROADS, THE SECOND TO MOTOR VEHICLES, AND THE THIRD TO
WATER CARRIERS.  THAT ACT, AS HAD EACH PREVIOUS AMENDMENT OF THE
ORIGINAL 1887 ACT, EXPANDED THE SCOPE OF REGULATION IN THIS FIELD AND
CORRELATIVELY BROADENED THE COMMISSION'S POWERS.  THE INTERRELATIONSHIP
OF THE THREE PARTS OF THE ACT WAS MADE MANIFEST BY ITS DECLARATION OF A
"NATIONAL TRANSPORTATION POLICY OF THE CONGRESS TO PROVIDE FOR FAIR AND
IMPARTIAL REGULATION OF ALL MODES OF TRANSPORTATION SUBJECT TO THE
PROVISIONS OF THIS ACT, SO ADMINISTERED AS TO RECOGNIZE AND PRESERVE
THE INHERENT ADVANTAGES OF EACH."  THE DECLARED OBJECTIVE WAS THAT OF
"DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION
SYSTEM BY WATER, HIGHWAY, AND RAIL,  ...  ADEQUATE TO MEET THE NEEDS OF
THE COMMERCE OF THE UNITED STATES  ..."  CONGRESS FURTHER ADMONISHED
THAT "ALL OF THE PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND
ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE DECLARATION OF POLICY." 
54 STAT. 899. 

THIS POLICY CANNOT BE CARRIED OUT AS TO SEATRAIN'S INTERSTATE
CARRIAGE UNLESS RAILROADS INTERCHANGE THEIR CARS WITH IT.  THE
PARTICULAR TYPE OF SERVICE INTRODUCED BY SEATRAIN, AND FOUND BY THE
COMMISSION TO BE QUALITATIVELY SUPERIOR, CANNOT BE RENDERED WITHOUT THE
PRIVILEGE OF CARRYING THE VERY RAILROAD CARS WHICH CARRY FREIGHT TO ITS
PORTS.  THE "INHERENT ADVANTAGES OF THIS SERVICE" WOULD BE LOST TO THE
PUBLIC WITHOUT RAILROAD CAR INTERCHANGE. 

FURTHERMORE, THE ACT CALLS FOR "FAIR AND IMPARTIAL REGULATION."  THE
RAILROAD ASSOCIATION'S RULE HOWEVER IS CONSTRUCTED ON THE PREMISE THAT
THE RAILROADS CAN AT THEIR DISCRETION DETERMINE WHICH WATER CARRIER
MAY, AND WHICH MAY NOT, TRANSPORT THEIR CARS.  SEATRAIN ALONE, OF ALL
THE WATER CARRIERS, ACCORDING TO THE COMMISSION'S FINDINGS, HAS BEEN
REFUSED CAR INTERCHANGE.  THIS MEANS THAT THE ASSOCIATION'S RULE, IF
VALID, ENABLES THE RAILROADS TO DECLINE TO DEAL WITH SEATRAIN AS IT
DOES WITH OTHER CARRIERS.  AS EARLY AS 1914, THE COMMISSION HAD
DECLARED THAT THE INTERSTATE COMMERCE ACT, AS THEN IN EFFECT,
PROHIBITED RAILROAD PRACTICES WHICH LENT THEMSELVES TO SUCH PURPOSE. 
THE COMMISSION SAID AT THAT TIME: 

"IF THE RAIL CARRIERS ARE PERMITTED TO CHOOSE THE PARTICULAR BOAT
LINES WITH WHICH THEY WILL ESTABLISH THROUGH ROUTES AND JOINT RATES,
THEY WILL BE ABLE TO DICTATE WHO SHALL OPERATE ON THE WATER AND WHO
SHALL NOT, FOR A BOAT LINE WHICH IS ACCORDED A MONOPOLY OF THE THROUGH
RAIL-AND-WATER TRAFFIC WILL SOON BE ABLE TO DRIVE ITS COMPETITORS OUT
OF BUSINESS."  PACIFIC NAVIGATION CO. V. SOUTHERN PACIFIC CO., 31
I.C.C. 472, 479. 

WE CANNOT AGREE WITH THE CONTENTION THAT THE COMMISSION HAS LESS
POWER NOW TO PROTECT WATER CARRIERS THAN IT HAD IN 1914.  FN5  THE 1940
ACT WAS INTENDED, TOGETHER WITH THE OLD LAW, TO PROVIDE A COMPLETELY
INTEGRATED INTERSTATE REGULATORY SYSTEM OVER MOTOR, RAILROAD, AND WATER
CARRIERS.  IN THE LIGHT OF ITS DECLARED POLICY, AND BECAUSE OF ITS
PROVISIONS HEREAFTER NOTED, WE THINK RAILROADS ARE UNDER A DUTY TO
PROVIDE INTERCHANGE OF CARS WITH WATER CARRIERS TO THE END THAT
INTERSTATE COMMERCE MAY MOVE WITHOUT INTERRUPTION OR DELAY.  CF. FLOUR
CITY S.S. CO. V. LEHIGH VALLEY R. CO., 24 I.C.C. 179, 184. 

SEC. 1(4) OF PART I OF THE ACT IMPOSES A DUTY ON RAILROADS TO
ESTABLISH REASONABLE THROUGH ROUTES WITH OTHER CARRIERS, INCLUDING
WATER CARRIERS, AND TO "PROVIDE REASONABLE FACILITIES FOR OPERATING
SUCH ROUTES"  FN6  UNDER "REASONABLE RULES AND REGULATIONS." 

SEC. 3(4) MAKES IT THE DUTY OF RAILROADS TO "AFFORD ALL REASONABLE,
PROPER, AND EQUAL FACILITIES FOR THE INTERCHANGE OF TRAFFIC BETWEEN
THEIR  ...  LINES AND CONNECTING LINES, AND FOR THE  ... FORWARDING
...  OF  ...  PROPERTY TO AND FROM CONNECTING LINES," AND A "CONNECTING
LINE" IS DEFINED TO INCLUDE A WATER CARRIER. 

SEC. 15(3) SUPPLEMENTS THESE SECTIONS BY PROVIDING THAT THE
COMMISSION MAY HOLD HEARINGS, AND "SHALL," IF IT DEEMS IT "NECESSARY OR
DESIRABLE IN THE PUBLIC INTEREST,  ...  ESTABLISH THROUGH ROUTES  ...
AND THE TERMS AND CONDITIONS UNDER WHICH SUCH THROUGH ROUTES SHALL BE
OPERATED." 

THESE SECTIONS PROVIDE SUFFICIENT AUTHORIZATION FOR THE COMMISSION'S
ORDER.  IT WAS FROM ITS POWER TO REQUIRE THROUGH ROUTES THAT THE
COMMISSION ORIGINALLY DERIVED ITS POWER TO REQUIRE INTERCHANGE OF
RAILROAD CARS AMONG CONNECTING RAILROADS.  FN7  SINCE A RAIL-WATER
THROUGH ROUTE WITH SEATRAIN CANNOT FUNCTION WITHOUT AN INTERCHANGE OF
CARS, THE UNQUESTIONED POWER OF THE COMMISSION TO REQUIRE ESTABLISHMENT
OF SUCH ROUTES WOULD BE WHOLLY FRUITLESS, WITHOUT THE CORRELATIVE POWER
TO ABROGATE THE ASSOCIATION'S RULE WHICH PROHIBITS THE INTERCHANGE. 

SECOND.  IT IS CONTENDED, AND THE COURT BELOW HELD, THAT IF THE
COMMISSION HAS POWER TO REQUIRE RAILROADS TO INTERCHANGE CARS WITH
THROUGH ROUTE CONNECTING WATER CARRIERS, IT IS WITHOUT POWER TO DO SO
IF A ROUTE TRAVERSES, IN PART, FOREIGN WATERS, AS SEATRAIN'S DOES. 
THIS CONTENTION BASICALLY RESTS ON PARAGRAPHS (1) AND (2) OF SEC. 1 OF
THE INTERSTATE COMMERCE ACT, AS AMENDED BY SEC. 400 OF THE 1920 ACT, 41
STAT. 474, LEFT UNCHANGED BY PART I OF THE 1940 ACT.  THE LANGUAGE
RELIED UPON IN THESE PARAGRAPHS DECLARES THAT THE PROVISIONS OF PART I,
RELATING TO RAILROADS AND THEIR TRANSPORTATION, SHALL APPLY "ONLY
INSOFAR AS SUCH TRANSPORTATION  ...  TAKES PLACE WITHIN THE UNITED
STATES."  LIMITING LANGUAGE TO THE SAME EFFECT IS CONTAINED IN THE
WATER CARRIER REGULATORY PROVISIONS OF PART III OF THE 1940 ACT.  FN8 

THIS COURT HAS STATED THAT THE 1920 ACT, CONTAINING THIS LIMITING
CLAUSE, "APPLIES TO INTERNATIONAL COMMERCE ONLY IN SO FAR AS THE
TRANSPORTATION TAKES PLACE WITHIN THE UNITED STATES."  LEWIS-SIMAS
JONES CO. V. SOUTHERN PACIFIC CO., 283 U.S. 654, 660.  THE QUESTION IN
THAT CASE WAS AS TO JOINT THROUGH RAILROAD RATES OVER A RAILROAD ROUTE
PARTLY IN THE UNITED STATES AND PARTLY IN MEXICO.  THE COURT FURTHER
SAID AS TO THIS SITUATION THAT "THE ACT DOES NOT EMPOWER THE COMMISSION
TO PRESCRIBE OR REGULATE SUCH RATES."  FN9  IN ST. LOUIS, B. & M.R. CO.
V. BROWNSVILLE DISTRICT, 304 U.S. 295, THIS COURT WAS CALLED UPON TO
CONSIDER WHETHER, UNDER THE 1920 ACT, THERE WAS A DUTY ON THE PART OF
AMERICAN RAILROADS TO FURNISH CARS FOR TRANSPORTATION ON A MEXICAN
RAILROAD.  IT WAS THERE HELD THAT IN THE ABSENCE OF A DISCRIMINATION
AGAINST SHIPPERS, PLACES, OR CLASSES OF TRAFFIC WITHIN THE UNITED
STATES, AMERICAN RAILROADS WERE "NOT BOUND BY ANY LAW, REGULATION, OR
TARIFF TO FURNISH CARS FOR TRANSPORTATION IN MEXICO."  THESE DECISIONS
SIMPLY MEANT THAT WHATEVER POWER CONGRESS MIGHT HAVE TO REGULATE THE
CONDUCT OF ITS DOMESTIC COMPANIES DOING BUSINESS ABROAD, FN10  IT HAD,
BY THE LIMITING PROVISIONS OF THE 1920 ACT, EXPRESSED ITS PURPOSE NOT
TO EMPOWER THE COMMISSION WITH GENERAL AUTHORITY TO REGULATE RAIL
TRANSPORTATION IN FOREIGN COUNTRIES.    BUT THESE INTERPRETATIONS OF
THE 1920 ACT CONCERNING RAIL TRANSPORTATION OUTSIDE THE UNITED STATES
ARE OF DUBIOUS RELEVANCE TO THE INSTANT CASE.  FOR CONGRESS HAS, IN
SEC. 15(3) OF THE 1940 ACT, UNEQUIVOCALLY GRANTED TO THE COMMISSION THE
POWER TO ESTABLISH THROUGH JOINT RAILWATER ROUTES, AND SEC. 302(I)(2)
MAKES THIS POWER APPLICABLE TO SUCH ROUTES "FROM A PLACE IN THE UNITED
STATES TO ANOTHER PLACE IN THE UNITED STATES."  FN11  CF. CORNELL
STEAMBOAT CO. V. UNITED STATES, 321 U.S. 634.  THE REASON FOR THIS
GRANT OF AUTHORITY TO THE COMMISSION IS APPARENT.  IT IS WELL KNOWN
THAT A SUBSTANTIAL PART OF INTERCOASTAL AND LAKE TRANSPORTATION AMONG
THE STATES, IN WHICH AMERICAN COMPANIES ENGAGE, TRAVERSES WATERS
OUTSIDE OF THE TERRITORIAL LIMITS OF THE UNITED STATES.  FOREIGN
COUNTRIES HAVE NOT THE SAME INTEREST IN THIS PURELY DOMESTIC CARRIAGE
OF GOODS AS THEY HAVE IN CONTROLLING THE MOVEMENT OF RAILROADS IN THEIR
TERRITORY.  FN12  SUCH TRANSPORTATION MUST BE REGULATED BY THIS COUNTRY
IF IT IS TO BE EFFECTIVELY REGULATED.  CONGRESS RECOGNIZED THIS FACT
WHEN IT MADE SPECIAL PROVISION IN SEC. 15(3) FOR THE COMMISSION TO
REGULATE WATER TRANSPORTATION FROM ONE TO ANOTHER PLACE IN THE UNITED
STATES, EVEN THOUGH THAT TRANSPORTATION TOOK PLACE "PARTLY OUTSIDE" THE
UNITED STATES.  IT IS THIS PARTICULAR PROVISION, MADE ESPECIALLY
APPLICABLE TO INTERSTATE RAIL-WATER TRANSPORTATION, BY WHICH THE
COMMISSION'S AUTHORITY OVER SUCH MOVEMENTS MUST BE MEASURED, RATHER
THAN BY THE LIMITING CLAUSE OF SEC. 1, WHICH IS APPLICABLE TO THE
COMMISSION'S POWER OVER RAILROAD TRANSPORTATION.  THERE IS THEREFORE
NOTHING IN THE ACT TO DENY THE COMMISSION THE SAME POWER OVER
INTERSTATE WATER-RAIL TRANSPORTATION WHICH PASSES THROUGH FOREIGN
WATERS, AS WE HAVE JUST HELD IT ENJOYS WHERE THE TRANSIT IS WHOLLY
WITHIN THE TERRITORIAL LIMITS OF THE UNITED STATES.  WE THEREFORE HOLD
THAT THE ORDER OF THE COMMISSION REQUIRING CAR INTERCHANGES WAS WITHIN
ITS AUTHORITY AS TO INTERSTATE MOVEMENTS WHICH TAKE PLACE WITHIN OR
WITHOUT THE TERRITORIAL WATERS OF THE UNITED STATES.  FN13 

THIRD.  THE COMMISSION FOUND THAT $1.00 PER CAR PER DAY, TO BE PAID
TO THE CAR OWNERS WHILE SEATRAIN ACTUALLY HAD CARS IN ITS POSSESSION,
WAS A REASONABLE COMPENSATION.  ALTHOUGH, IN PRACTICE, CARS BROUGHT TO
THE PORTS MUST SOMETIMES WAIT SEVERAL DAYS FOR SEATRAIN'S SAILING, THE
COMMISSION DID NOT REQUIRE SEATRAIN TO MAKE PER DIEM PAYMENTS DURING
THIS WAITING PERIOD.  IT IS CONTENDED THAT THE COMMISSION SHOULD
REQUIRE SEATRAIN TO PAY FOR THE CARS FROM THE TIME THEY ARE MADE
AVAILABLE TO IT; THAT THE RATE OF COMPENSATION WAS TOO LOW; AND THAT IN
BOTH RESPECTS, THE RESULT IS TO REQUIRE RAILROADS TO AFFORD SEATRAIN
THE "FREE USE" OF THEIR PROPERTY, THEREBY IMPOSING A BURDEN UPON THE
RAILROADS WHICH CONGRESS NEITHER DID NOR COULD HAVE AUTHORIZED. 
CHICAGO, R.I. & P.R. CO. V. UNITED STATES, 284 U.S. 80, 97. 

THE QUESTIONS THUS RAISED DEPEND UPON A DETERMINATION OF FACTS.  THE
FINDINGS OF THE COMMISSION, DISCUSSED AT LENGTH IN ITS OPINIONS,
ILLUSTRATE THE COMPLEX NATURE OF THE FACTS INVOLVED.  237 I.C.C. 97,
101-102; 248 I.C.C. 109.  THOSE FACTS NEED NOT BE REPEATED HERE.  THE
COMMISSION NOT ONLY HAD THE BENEFIT OF THE TESTIMONY OFFERED IN THESE
PROCEEDINGS, BUT WAS POSSESSED OF WIDE EXPERIENCE WITH THE GENERAL
PROBLEM OF CAR HIRE.  SEE E.G. RULES FOR CAR-HIRE SETTLEMENT, 160
I.C.C. 369.  WE HAVE CAREFULLY EXAMINED THE RECORD AND FIND SUBSTANTIAL
EVIDENTIARY SUPPORT FOR THE COMMISSION'S FINDING "THAT THE CURRENT CODE
OF PER DIEM RULES GOVERNING THE INTERCHANGE OF FREIGHT CARS BETWEEN THE
DEFENDANTS ABOVE REFERRED TO AND OTHER RAIL CARRIERS, INCLUDING THE
CURRENT RATE OF $1 PER DAY PAYABLE BY SEATRAIN FOR SUCH PERIOD AS THE
CARS ARE IN ITS ACTUAL POSSESSION, WOULD BE REASONABLE FOR APPLICATION
TO THE INTERCHANGE OF CARS BETWEEN DEFENDANTS AND COMPLAINANTS FOR USE
BY SEATRAIN."  248 I.C.C. AT 119.  THIS BEING TRUE WE SUSTAIN THE
COMMISSION'S ORDER IN THIS RESPECT.  FN14 

WE FIND NO MERIT IN ANY OF THE OTHER CONTENTIONS RAISED AGAINST THE
ORDER OF THE COMMISSION. 

THE JUDGMENT IN NO. 47 IS REVERSED, AND THE JUDGMENT IN NO. 48 IS
AFFIRMED.  IT IS SO ORDERED. 

FN1  LATER THE AMERICAN RAILWAY ASSOCIATION AND OTHER RAILROAD
ORGANIZATIONS CONSOLIDATED THEIR ACTIVITIES UNDER THE NAME OF THE
ASSOCIATION OF AMERICAN RAILROADS.  THE NEW ASSOCIATION ADOPTED THE
SAME RULE. 

FN2  ST. LOUIS S.W.R. CO. V. UNITED STATES, 245 U.S. 136, 142-144. 

FN3  MISSOURI & ILLINOIS COAL CO. V. ILLINOIS CENTRAL R. CO., 22
I.C.C. 39, 44; CHICAGO, R.I. & P.R. CO. V. UNITED STATES, 284 U.S. 80,
91, 101-102; CF. ST. LOUIS, S.W.R. CO. V. ARKANSAS, 217 U.S. 136, 145
146. 

FN4  SUCH HAS LONG BEEN THE RULING OF THE INTERSTATE COMMERCE
COMMISSION.  CHATTANOOGA PACKET CO. V. ILLINOIS CENTRAL R. CO., 33
I.C.C. 384, 391-392; FLOUR CITY S.S. CO. V. LEHIGH VALLEY R. CO., 24
I.C.C. 179; DECATUR NAVIGATION CO. V. L. & N.R. CO., 31 I.C.C. 281,
288; PACIFIC NAVIGATION CO. V. SOUTHERN PACIFIC CO., 31 I.C.C. 472,
479. 

FN5  THIS ARGUMENT RESTS ON A HISTORICAL ANALYSIS OF PROVISIONS IN
THE ORIGINAL ACT AND LATER AMENDMENTS WHICH IMPOSE SPECIFIC DUTIES AS
TO CAR INTERCHANGES.  A DETAILED AND CLEAR NARRATIVE OF THE HISTORY
APPEARS IN THE OPINION OF THE DISTRICT COURT.  55 F.SUPP., SUPRA, 479
483.  IN SUMMARY THE ARGUMENT IS THIS.  THE ORIGINAL 1887 ACT APPLYING
ONLY TO RAILROADS, 24 STAT. 379, REQUIRED IN SEC. 3, AN "INTERCHANGE OF
TRAFFIC" BUT DID NOT SPECIFICALLY PROVIDE FOR AN INTERCHANGE OF CARS. 
THE HEPBURN AMENDMENT OF 1906, 34 STAT. 584, SUBJECTED WATER CARRIERS
TO THE ACT SO FAR AS THEY CONNECTED WITH RAILROADS IN INTERSTATE
COMMERCE, DEFINED TRANSPORTATION TO INCLUDE "CARS" AND "FACILITIES,"
AND MADE IT THE DUTY OF RAILROADS TO ESTABLISH THROUGH ROUTES.  THE
MANN-ELKINS AMENDMENT OF 1910, 36 STAT. 539, 545, REQUIRED CARRIERS TO
MAKE REASONABLE RULES AND REGULATIONS TO PROVIDE FOR "EXCHANGE,
INTERCHANGE, AND RETURN OF CARS" USED ON THROUGH ROUTES.  THE ESCH CAR
SERVICE ACT OF 1917, 40 STAT. 101, AGAIN REQUIRED INTERCHANGE OF CARS,
AND SPECIFICALLY GAVE THE COMMISSION POWER TO ESTABLISH RULES TO
ENFORCE THE REQUIREMENT.  THE TRANSPORTATION ACT OF 1920, 41 STAT. 456,
476, OMITTED THE EXACT LANGUAGE OF THE CAR INTERCHANGE REQUIREMENT
WHICH HAD APPEARED IN THE 1910 MANN-ELKINS AMENDMENT, BUT SUBSTITUTED
FOR IT SECS. 1(10)(11)(13) AND (14) WHICH CONTAINED MORE ELABORATE
LANGUAGE IMPOSING STILL MORE SPECIFIC DUTIES IN THIS RESPECT.  THESE
"CAR SERVICE" PROVISIONS WERE NOT CHANGED BY THE 1940 TRANSPORTATION
ACT.  THE MANN-ELKINS AND THE ESCH CAR SERVICE AMENDMENTS, HOWEVER, HAD
MADE THE CAR INTERCHANGE PROVISIONS APPLICABLE TO EVERY "CARRIER
SUBJECT TO THE PROVISIONS OF THIS ACT."  THE 1920 ACT MADE THE CAR
SERVICE PROVISIONS APPLICABLE TO "CARRIERS BY RAILROAD SUBJECT TO THIS
ACT"; THE 1940 ACT MADE THEM APPLICABLE TO A "CARRIER BY RAILROAD
SUBJECT TO THIS PART."  THE ARGUMENT IS THAT THESE CHANGES, MADE IN THE
1920 AND CARRIED INTO THE 1940 ACT, SHOW A CONTINUING PURPOSE OF
CONGRESS TO DEPRIVE THE COMMISSION OF THE POWER TO REQUIRE INTERCHANGE
OF CARS WITH WATER CARRIERS - TO DETRACT FROM ITS AUTHORITY.  BUT WE
HAVE ALREADY HAD OCCASION TO SAY THAT THE 1920 ACT "MATERIALLY EXTENDS
THE JURISDICTION OF THE COMMISSION IN RESPECT OF LAND AND WATER
TRANSPORTATION AND THE CARRIERS ENGAGED IN IT, WHENEVER PROPERTY MAY BE
OR IS TRANSPORTED IN INTERSTATE COMMERCE BY RAIL AND WATER BY A COMMON
CARRIER OR CARRIERS  ..."  CHICAGO, R.I. & P.R. CO. V. UNITED STATES,
274 U.S. 29, 35.  THIS CONCLUSION AS TO THE SCOPE OF THE 1920 ACT IS
FULLY JUSTIFIED BY ITS HISTORY, 206 I.C.C. SUPRA, 339-343. 
CONSEQUENTLY, THE 1920 CHANGES IN THE LANGUAGE OF THE CAR SERVICE
REQUIREMENTS DO NOT JUSTIFY THE NARROW INTERPRETATION OF THE 1940 ACT
WHICH IS HERE URGED. 

FN6  AS TO CARS BEING "FACILITIES," SEE SEC. 1(3)(A) OF THE ACT, AND
ASSIGNED CAR CASES, 274 U.S. 564, 575, 580; GENERAL AMERICAN TANK CAR
CORP. V. EL DORADO TERMINAL CO., 308 U.S. 422, 428. 

FN7  SEE NOTE 3. 

FN8  SEC. 302(I)(2) OF THE ACT PROVIDES THAT THE TRANSPORTATION
SUBJECT TO REGULATION IS THAT "...  PARTLY BY WATER AND PARTLY BY
RAILROAD OR MOTOR VEHICLE, FROM A PLACE IN THE STATE TO A PLACE IN ANY
OTHER STATE; EXCEPT THAT WITH RESPECT TO SUCH TRANSPORTATION TAKING
PLACE PARTLY IN THE UNITED STATES AND PARTLY OUTSIDE THEREOF, SUCH
TERMS SHALL INCLUDE TRANSPORTATION BY RAILROAD OR MOTOR VEHICLE ONLY
INSOFAR AS IT TAKES PLACE WITHIN THE UNITED STATES  ..." 

FN9  NOTWITHSTANDING THIS, HOWEVER, THE COURT HELD THAT WHERE SUCH
JOINT RATES WERE VOLUNTARILY FIXED AND CHARGED BY AN AMERICAN RAILROAD,
THE COMMISSION COULD, UNDER THE POWER GIVEN IT BY THE 1920 ACT, PASS
UPON THE REASONABLENESS OF THE JOINT INTERNATIONAL RATE. 

FN10  SEE KNOTT V. BOTANY MILLS, 179 U.S. 69; CUNARD S.S. CO. V.
MELLON, 262 U.S. 100, 129. 

FN11  THE COMMISSION DENIED SEATRAIN'S PETITION INSOFAR AS IT ASKED
AN ORDER REQUIRING RAILROADS TO INTERCHANGE THEIR CARS FOR THE PURPOSE
OF HANDLING FREIGHT TO CUBA.  206 I.C.C. SUPRA, 337; 248 I.C.C. SUPRA,
118-119. 

FN12  SECTION 1(1)(A) OF PART I OF THE ACT WHICH CONTAINS THE GENERAL
CLAUSE LIMITING THE ACT'S APPLICATION TO RAILROAD TRANSPORTATION WITHIN
THE UNITED STATES, ALSO DECLARES ITS APPLICATION TO TRANSPORTATION
"FROM ANY PLACE IN THE UNITED STATES THROUGH A FOREIGN COUNTRY TO ANY
OTHER PLACE IN THE UNITED STATES."  THIS LATTER CLAUSE, AS THE DISTRICT
COURT RECOGNIZED, 55 F.SUPP.  SUPRA, 487, WOULD HAVE LITTLE MEANING, IF
THE LIMITING CLAUSE WERE GIVEN THE INTERPRETATION FOR WHICH THE
RAILROADS HERE CONTEND. 

FN13  WE HAVE NOT OVERLOOKED THE ARGUMENT THAT CONGRESS INTENDED TO
TAKE AWAY PART OF THE COMMISSION'S POWER OVER CAR INTERCHANGES BY
REPEALING SUBDIVISION (B) OF SEC. 6(13) OF THE ACT TO REGULATE COMMERCE
AS AMENDED, 37 STAT. 560, 568, WHICH READS AS FOLLOWS:  "TO ESTABLISH
THROUGH ROUTES AND MAXIMUM JOINT RATES BETWEEN AND OVER SUCH RAIL AND
WATER LINES, AND TO DETERMINE ALL THE TERMS AND CONDITIONS UNDER WHICH
SUCH LINES SHALL BE OPERATED IN THE HANDLING OF THE TRAFFIC EMBRACED." 

THIS REPEALED PROVISION WAS SUBSTANTIALLY EMBODIED IN 15(3) OF THE
1940 ACT.  WE THINK COMMISSIONER EASTMAN, THEN CHAIRMAN OF THE
LEGISLATIVE BUREAU, MADE AN ACCURATE STATEMENT WHEN, IN WRITING THE
SENATE-HOUSE CONFERENCE COMMITTEE CONSIDERING THE 1940 ACT, HE STATED
THAT HE DID NOT OBJECT TO THE REPEAL OF 13(B) SINCE "OTHER PROVISIONS
OF THE BILL ADEQUATELY COVER THIS MATTER."  OMNIBUS TRANSPORTATION
LEGISLATION, HOUSE COMMITTEE PRINT, 76TH CONGRESS, 3D SESSION, P. 23. 

FN14  IT IS TO BE NOTED THAT THE COMMISSION HAS NOT FORECLOSED FUTURE
CONSIDERATION OF THE CAR HIRE COMPENSATION PROBLEM, INSOFAR AS IT MAY
BE INVOLVED IN DETERMINING RAILROAD RATES OR A PROPER DIVISION OF
THROUGH RAIL-WATER RATES BETWEEN SEATRAIN AND THE RAILROADS.  248
I.C.C. 117; CF. CHICAGO, R.I. & P.R. CO. V. UNITED STATES, SUPRA, 97,
109, NOTE 11. 

MR. JUSTICE ROBERTS DISSENTS. 
..END :

















OTIS & CO. V. S.E.C., 323 U.S. 624 


NO. 81.  ARGUED NOVEMBER 17, 1944.  - DECIDED JANUARY 29, 1945.  - 142
F.2D 411, AFFIRMED. 


1.  WHETHER A PROVISION OF A CORPORATE CHARTER GRANTING THE PREFERRED
STOCK A SPECIFIED PREFERENCE UPON LIQUIDATION APPLIES TO A LIQUIDATION
IN A SIMPLIFICATION PURSUANT TO SEC. 11(B)(2) AND (E) OF THE PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935 IS A QUESTION OF FEDERAL LAW.  P.
636. 

2.  A PROVISION OF A CORPORATE CHARTER GRANTING THE PREFERRED STOCK A
SPECIFIED PREFERENCE UPON LIQUIDATION, ADOPTED SIX YEARS PRIOR TO THE
ENACTMENT OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, HELD
INOPERATIVE IN A SIMPLIFICATION BY LIQUIDATION UNDER SEC. 11(B)(2) OF
THAT ACT.  P. 637. 

CONGRESS DID NOT INTEND THAT ITS EXERCISE OF POWER TO SIMPLIFY
HOLDING-COMPANY SYSTEMS SHOULD MATURE RIGHTS WHICH WERE CREATED WITHOUT
REGARD TO THE POSSIBILITY OF SUCH EXERCISE OF POWER AND WHICH OTHERWISE
WOULD MATURE ONLY BY VOLUNTARY ACTION OF STOCKHOLDERS OR INVOLUNTARILY
THROUGH ACTION OF CREDITORS. 

3.  CONTINENTAL INSURANCE CO. V. UNITED STATES, 259 U.S. 156,
DISTINGUISHED.  P. 638. 

4.  IN A LIQUIDATION PURSUANT TO SEC. 11(B)(2) OF THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935, ALLOCATION OF THE ASSETS AS BETWEEN
DIFFERENT CLASSES OF SECURITIES MAY BE MADE WITHOUT DOLLAR VALUATION SO
LONG AS EACH SECURITY HOLDER IN THE ORDER OF HIS PRIORITY RECEIVES THE
EQUITABLE EQUIVALENT OF RIGHTS SURRENDERED.  P. 639. 

OTIS & CO. V. SECURITIES & EXCHANGE COMMISSION ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 322 U.S. 724, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
APPROVING A PLAN FOR THE LIQUIDATION AND DISSOLUTION OF A HOLDING
COMPANY PURSUANT TO AN ORDER OF THE SECURITIES & EXCHANGE COMMISSION
UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

AN IMPORTANT ALTHOUGH NARROW LEGAL POINT IN THE INTERPRETATION OF THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935  FN1  IS INVOLVED IN THIS
CASE.  THIS IS WHETHER A PLAN UNDER SEC. 11(E) OF THAT ACT MAY BE "FAIR
AND EQUITABLE" TO PREFERRED STOCKHOLDERS WITHIN THE MEANING OF THOSE
WORDS AS USED IN THAT SECTION, WHICH ALLOWS A PARTICIPATION BY JUNIOR
COMMON STOCKHOLDERS IN THE DISTRIBUTION OF THE ASSETS OF A REGISTERED
HOLDING COMPANY, WHICH IS LIQUIDATED IN COMPLIANCE WITH SEC. 11(B)(2),
BEFORE THE SENIOR PREFERRED STOCKHOLDERS RECEIVE SECURITIES WHOSE
PRESENT VALUE EQUALS THE PREFERRED'S FULL LIQUIDATION PREFERENCES. 

THE SECURITIES AND EXCHANGE COMMISSION APPROVED THE PLAN, HOLDING
COMPANY ACT RELEASE NO. 4215, APRIL 5, 1943.  THE UNITED STATES
DISTRICT COURT OF DELAWARE APPROVED THE PLAN, 51 F.SUPP.  217, AND THE
CIRCUIT COURT OF APPEALS AFFIRMED THIS ACTION.  THIS COURT HAS
JURISDICTION UNDER JUDICIAL CODE, SEC. 240 AND SECTION 25 OF THE
HOLDING COMPANY ACT.  CERTIORARI WAS GRANTED BECAUSE OF THE IMPORTANCE
OF THE QUESTION RAISED IN ADMINISTRATION OF THE ACT.  322 U.S. 724. 

THE UNITED LIGHT AND POWER COMPANY, A MARYLAND CORPORATION, IS A
REGISTERED HOLDING COMPANY UNDER THE ACT.  SEC. 5.  IT IS THE TOP
HOLDING COMPANY OF A LARGE SYSTEM WITH TWENTY-FOUR OTHER CORPORATE
ASSOCIATES.  SEC. 2A (10).  ITS PLACE IN THE SYSTEM VIOLATES THE
PROHIBITION OF THE ACT AGAINST A REGISTERED HOLDING COMPANY BEING A
"HOLDING COMPANY WITH RESPECT TO (ANY) OF ITS SUBSIDIARY COMPANIES
(SEC. 2A (8)) WHICH ITSELF HAS A SUBSIDIARY COMPANY WHICH IS A HOLDING
COMPANY."  SEC. 11(B)(2).  THIS PROHIBITION IS KNOWN AS THE "GREAT
GRANDFATHER CLAUSE." 

IN PROCEEDINGS FOR THE SIMPLIFICATION OF THE SYSTEM, AFTER FINDING
THAT POWER VIOLATED THE GREAT-GRANDFATHER CLAUSE, AN ORDER WAS ENTERED
ON MARCH 20, 1941, DIRECTING THAT POWER BE LIQUIDATED AND DISSOLVED. 
FN2  THE ORDER AUTHORIZED POWER TO SUBMIT TO THE COMMISSION A PLAN FOR
COMPLIANCE WITH THE ORDER "ON A BASIS WHICH IS FAIR AND EQUITABLE TO
ITS SECURITY HOLDERS."  POWER WITH ITS REGISTERED HOLDING COMPANY
SUBSIDIARY, THE UNITED LIGHT AND RAILWAYS COMPANY, A DELAWARE
CORPORATION, ALL OF WHOSE COMMON STOCK WAS OWNED BY POWER, SUBMITTED
SUCH A PLAN AND AFTER EXAMINATION BY THE COMMISSION AND MODIFICATION IT
WAS APPROVED BY ORDER OF APRIL 5, 1943.  THE PLAN WAS HELD SPECIFICALLY
TO BE FAIR AND EQUITABLE TO ALL SECURITY HOLDERS.  BY THE APPLICATION
AND ORDER RAILWAYS' PARTICIPATION IN THE PLAN WAS ACCEPTED.  HOLDING
COMPANY ACT RELEASE NO. 4215.  THIS IS THE ORDER WHICH IS BEFORE US. 

IT APPROVED THE PLAN FOR THE LIQUIDATION AND DISSOLUTION OF POWER AS
"NECESSARY TO EFFECTUATE THE PROVISIONS OF SECTION 11(B) OF THE" ACT. 
FN3  IT DIRECTED COUNSEL FOR THE COMMISSION TO APPLY TO AN APPROPRIATE
FEDERAL COURT FOR AN ORDER ENFORCING THE PLAN.  FN4  THE CENTRAL
FEATURE OF THE PLAN AND THE ONE HERE IN ISSUE WAS POWER'S PROPOSED
DISTRIBUTION OF ITS ASSETS TO ITS PREFERRED AND COMMON STOCKHOLDERS. 
POWER'S CHIEF ASSET WAS ITS HOLDINGS OF COMMON STOCK IN ITS SUBSIDIARY,
RAILWAYS.  IT REPRESENTED OVER $72,000,000 OF ITS TOTAL GROSS ASSETS OF
A LITTLE MORE THAN $81,000,000.  ALL OTHER PROPERTY OF POWER WHICH
REMAINED AFTER THE SATISFACTION OF ITS OBLIGATIONS WAS TO BE
DISTRIBUTED BY POWER TO RAILWAYS.  THUS THIS RESIDUAL PROPERTY OF POWER
WOULD INURE TO THE BENEFIT OF RAILWAYS' NEW COMMON STOCKHOLDERS, THE
FORMER STOCKHOLDERS OF POWER. 

DISTRIBUTION OF POWER'S COMMON STOCK HOLDINGS IN RAILWAYS WAS TO BE
EFFECTED ON THE BASIS OF 5 SHARES OF RAILWAYS' COMMON STOCK FOR ONE
SHARE OF POWER'S PREFERRED AND ONE SHARE OF RAILWAYS' COMMON FOR 20
SHARES OF POWER'S COMMON, AN ALLOCATION OF 94.52% TO POWER'S PREFERRED
STOCKHOLDERS AND 5.48% TO POWER'S COMMON STOCKHOLDERS.  AS RAILWAYS WAS
THE ONLY COMPANY IN THE TIER BELOW POWER OF THE HOLDING COMPANY SYSTEM,
IT WOULD BECOME BY THE DISSOLUTION OF POWER THE TOP HOLDING COMPANY AND
POWER'S PREFERRED AND COMMON STOCKHOLDERS, BY THE DISTRIBUTION TO THEM
OF ALL OF RAILWAYS' COMMON, WOULD HAVE IN THE AGGREGATE THE SAME RIGHTS
IN RAILWAYS AND IN THE HOLDING COMPANY SYSTEM THAT POWER HAD.  THE
RIGHTS AND PREFERENCES OF POWER'S STOCKHOLDERS WOULD OF COURSE
DISAPPEAR WITH THE DISTRIBUTION OF RAILWAYS' COMMON AND THE DISSOLUTION
OF POWER.  AS HOLDERS OF RAILWAYS' SINGLE CLASS OF COMMON, A NEW
RELATIONSHIP OF EQUALITY WOULD ARISE BETWEEN POWER'S PREFERRED AND
COMMON STOCKHOLDERS. 

THIS ORDER WAS PRECEDED BY AN EXAMINATION BY THE COMMISSION INTO THE
SITUATION OF THIS HOLDING COMPANY SYSTEM N5.  FOR A CLEAR UNDERSTANDING
OF THE SINGLE ISSUE AS TO WHETHER, IN THE LIQUIDATION OF A HOLDING
COMPANY BY ORDER OF THE COMMISSION UNDER SEC. 11(E), A PARTICIPATION BY
JUNIOR SECURITY HOLDERS IN THE ASSETS IS PERMISSIBLE BEFORE PREFERRED
SECURITY HOLDERS HAVE RECEIVED THE ENTIRE LIQUIDATING PREFERENCE
SECURED TO THEM BY THE COMPANY'S CHARTER, IT IS SUFFICIENT TO STATE
ONLY THE FOLLOWING FACTS ABOUT WHICH THERE IS NO CONTROVERSY BETWEEN
THE LITIGANTS.  POWER IS A SOLVENT COMPANY.  AS OF APRIL 30, 1942, AND
THERE IS NO INTIMATION THAT ITS CONDITION HAS WORSENED, ITS BALANCE
SHEET SHOWED ASSETS OF $81,159,075 AND LIABILITIES OF ONLY $6,132,976,
WITHOUT CONSIDERATION OF ITS CAPITAL STOCK STRUCTURE.  ITS PRINCIPAL
ASSET, THE RAILWAYS COMMON STOCK HERETOFORE REFERRED TO, HAS A BOOK
VALUE IN EXCESS OF THE $72,000,000 PLUS AT WHICH IT IS CARRIED ON
POWER'S BALANCE SHEET AND AN ACTUAL VALUE WHICH MAKES POWER
UNQUESTIONABLY SOLVENT WITH LARGE EQUITY VALUES IN ITS STOCK. 

POWER HAS OUTSTANDING 600,000 SHARES OF CLASS A PREFERRED.  THIS
PREFERRED STOCK HAS A LIQUIDATION VALUE OF $100 PER SHARE OR
$60,000,000, PLUS ARREARAGES OF $38,700,000 AS OF DECEMBER 31, 1942, OR
A TOTAL LIQUIDATING VALUE AHEAD OF THE COMMON, AS OF THE TIME OF THE
ORDER, OF $98,700,000.  FN6  THERE ARE 2,421,192 SHARES OF CLASS A
COMMON AND 1,055,576 SHARES OF CLASS B COMMON.  FN7 

THE COMMISSION FOUND THE BALANCE SHEET VALUE OF ALL RAILWAYS' COMMON
ON A PRO FORMA CORPORATE BASIS TO BE $77,954,874 AND, WHEN USING A PRO
FORMA CONSOLIDATED BASIS FOR THE ENTIRE SYSTEM, TO BE $81,554,330.  ON
A CAPITALIZATION OF REASONABLY ANTICIPATED EARNINGS OF THE SYSTEM, THE
COMMISSION WAS UNABLE TO FIND A VALUE FOR RAILWAYS' COMMON "WHICH
APPROACHES $98,700,000.00."  FN8 IF THE LIQUIDATION PREFERENCE OF
POWER'S PREFERRED STOCK IS APPLICABLE, UNDER THE COMMISSION'S
CONCLUSIONS ON PRESENT VALUATIONS ALL OF THE RAILWAYS' COMMON WOULD GO
ON DISTRIBUTION TO POWER'S PREFERRED.  THE COMMISSION DETERMINED THAT
THE LIQUIDATION PREFERENCE WAS NOT APPLICABLE AND FOR THESE REASONS. 

THE COMMISSION'S ORDER OF MARCH 20, 1941, FOR THE LIQUIDATION AND
DISSOLUTION OF POWER WAS A STEP IN THE SIMPLIFICATION OF THE HOLDING
COMPANY SYSTEM WHICH SIMPLIFICATION WAS ENJOINED BY SEC. 11(B)(2) OF
THE ACT.  SATISFACTION OF THE GREAT-GRANDFATHER CLAUSE MIGHT HAVE BEEN
OBTAINED IN THIS OR OTHER HOLDING COMPANY SYSTEMS BY AN ORDER FOR
MERGER, CONSOLIDATION OR RECAPITALIZATION BETWEEN TOP HOLDING COMPANIES
OR BETWEEN ASSOCIATE COMPANIES IN THE LOWER TIERS OF THE CORPORATE
HIERARCHY.  SUCH PROCEDURE WOULD AVOID THE LIQUIDATION OF POWER.  CF.
WINDHURST V. CENTRAL LEATHER CO., 105 N.J. EQ. 621, 149 A. 36; PORGES
V. VADSCO SALES CORP., 32 A.2D 148, 151.  THE SELECTION BY THE
COMMISSION OF ONE METHOD OF SYSTEM ADJUSTMENT TO ACCOMPLISH
SIMPLIFICATION RATHER THAN ANOTHER IS AN INCIDENT WHICH OUGHT NOT TO
AFFECT RIGHTS.  THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS THROUGH
SEC. 11(B)(2) TO ACCOMPLISH SIMPLIFICATION AS A MATTER OF PUBLIC POLICY
AND THE COMMISSION'S ADMINISTRATION OF THE ACT BY DISSOLUTION OF THIS
PARTICULAR COMPANY RESULTS IN A TYPE OF LIQUIDATION WHICH IS ENTIRELY
DISTINCT FROM THE "LIQUIDATION OF THE CORPORATION, WHETHER VOLUNTARY OR
INVOLUNTARY" ENVISAGED BY THE CHARTER PROVISIONS OF POWER FOR
PREFERENCES TO THE SENIOR STOCK.  FN9 

THIS CONCLUSION PERMITTED THE COMMISSION TO EXAMINE THE INVESTMENT
VALUES OF THE COMMON AND PREFERRED STOCKS OF POWER.  THE RIGHTS OF THE
PREFERRED STOCK TO $6 ANNUAL CUMULATIVE DIVIDENDS IN THE GOING BUSINESS
FN10  AND TO FULL PRIORITY IN LIQUIDATION OTHER THAN BY OPERATION OF
THE ACT WERE TREATED AS FACTORS IN VALUATION RATHER THAN DETERMINATIVE
OF AMOUNTS PAYABLE IN A TRADITIONAL DISSOLUTION.  UPON ANALYSIS OF THE
HOLDING COMPANY SYSTEM'S EXPERIENCE AND UPON AN ESTIMATE OF FUTURE
EARNINGS, THE COMMISSION ASSUMED EARNINGS OF $6,185,000 ANNUALLY WHICH
WOULD BE APPLICABLE TO RAILWAYS' COMMON AND, AS A CONSEQUENCE OF THE
DISTRIBUTION, TO POWER'S PREFERRED AND COMMON STOCKHOLDERS.  SINCE THE
ANNUAL PREFERRED DIVIDEND REQUIREMENTS WERE $3,600,000, THERE APPEARED
A BALANCE OF $2,585,000 AVAILABLE FOR THE REDUCTION OF PREFERRED STOCK
ARREARAGES OF $38,700,000 AS OF DECEMBER 31, 1942.  THE COMMISSION
NOTED THAT IF ALL THE ASSUMED EARNINGS MATERIALIZED AND WERE APPLIED TO
LIQUIDATING THE PREFERRED CURRENT AND DEFERRED DIVIDENDS, IN
APPROXIMATELY FIFTEEN YEARS THE ARREARAGES WOULD BE PAID AND THE COMMON
WOULD BE IN A POSITION TO RECEIVE DIVIDENDS.  FN11  FURTHERMORE, ONLY
BY FORCED LIQUIDATION COULD THE COMMON STOCK BE DEPRIVED OF ITS
POSSIBILITY FOR FUTURE EARNINGS.  ONLY BY MEANS OF FORCED LIQUIDATION
AND THE RECEIPT OF ALL RAILWAYS' COMMON, COULD POWER'S PREFERRED GAIN A
RIGHT TO PROSPECTIVE EARNINGS ABOVE ITS GUARANTEED DIVIDENDS.  THE
DEFERRED DIVIDENDS DO NOT BEAR INTEREST.  WHILE RECOGNIZING THAT THE
COMMON STOCK PARTICIPATION WAS REMOTE, THE COMMISSION DETERMINED THAT
IN ITS "OVER-ALL JUDGMENT" POWER'S COMMON HAD A LEGITIMATE INVESTMENT
VALUE OF A PROPORTION OF 5.48 PER CENT OF POWER'S ASSETS TO THE
PREFERRED'S VALUE OF 94.52 PER CENT.  SUCH A CONCLUSION IS NOT
"SUSCEPTIBLE OF MATHEMATICAL DEMONSTRATION,"  FN12  ANY MORE THAN ANY
OTHER VALUATION OF A UTILITY'S WORTH.  THE COMMISSION DETERMINED THIS
ALLOCATION WAS FAIR AND EQUITABLE WITHIN SEC. 11(E). 

PETITIONER DOES NOT CHALLENGE THE ABOVE ALLOCATION OF VALUES BETWEEN
THE PREFERRED AND COMMON STOCK OF POWER, IF THE COMMISSION IS CORRECT
IN TREATING THE STOCK RIGHTS AS THOUGH IN A CONTINUING ENTERPRISE
INSTEAD OF IN LIQUIDATION.  PETITIONER RELIES UPON THE CHARTER RIGHTS
WHICH ON LIQUIDATION OF POWER GIVE TO THE PREFERRED $100 AND THE
CUMULATED AND ACCRUED DIVIDENDS.  NOTE 6, SUPRA.  IT RELIES UPON THE
AUTHORITIES OF THIS AND OTHER COURTS WHICH HOLD THAT UNDER A FULL
PRIORITY RULE JUNIOR SECURITIES IN BANKRUPTCY OR EQUITY REORGANIZATIONS
MAY NOT PARTICIPATE IN THE ASSETS UNTIL THE RIGHTS OF THE HOLDERS OF
SENIOR SECURITIES ARE SATISFIED IN FULL.  FN13 PETITIONER SAYS: 

"WHEN THE PLAN, WHATEVER THE DEVICE USED, CONTEMPLATES THE SURRENDER
OF OUTSTANDING SECURITIES FOR NEW SECURITIES, EITHER IN THE SAME OR A
DIFFERENT COMPANY, IT IS NOT 'FAIR AND EQUITABLE' TO FORCE SENIOR
SECURITY HOLDERS TO ACCEPT LESS THAN THAT WHICH THEY ARE CONTRACTUALLY
ENTITLED TO RECEIVE." 

TO PETITIONER, NO DISTINCTION IS TO BE DRAWN BETWEEN LIQUIDATION UNDER
BANKRUPTCY OR REORGANIZATION AND LIQUIDATION UNDER THE PUBLIC UTILITY
HOLDING COMPANY ACT BY VIRTUE OF SECS. 11(B)(2) AND 11(E). 

WE REACH THE CONCLUSION THAT THE SECURITIES AND EXCHANGE COMMISSION
APPLIED THE CORRECT RULE OF LAW AS TO THE RIGHTS OF THE STOCKHOLDERS
INTER SESE.  THAT IS TO SAY, WHEN THE COMMISSION PROCEEDS IN THE
SIMPLIFICATION OF A HOLDING COMPANY SYSTEM, THE RIGHTS OF STOCKHOLDERS
OF A SOLVENT COMPANY WHICH IS ORDERED BY THE COMMISSION TO DISTRIBUTE
ITS ASSETS AMONG ITS STOCKHOLDERS MAY BE EVALUATED ON THE BASIS OF A
GOING BUSINESS AND NOT AS THOUGH A LIQUIDATION WERE TAKING PLACE. 

THE MANIFEST SOLVENCY OF POWER SIMPLIFIES THE PROBLEM OF
STOCKHOLDERS' RIGHTS WITH WHICH WE ARE HERE CONCERNED.  THE CREDITORS
ARE SATISFIED.  FN14  NO POSSIBILITY EXISTS THAT SIMPLIFICATION OF
STRUCTURE IS EMPLOYED HERE TO EVADE OR NULLIFY CREDITORS' RIGHTS IN
REORGANIZATION OR TO TAKE THE PLACE OF TRADITIONAL REORGANIZATION. 
FN15 

LIKE THE BANKRUPTCY AND REORGANIZATION STATUTES, THE PUBLIC UTILITY
HOLDING COMPANY ACT, IN PROVIDING THAT PLANS FOR SIMPLIFICATION BE
"FAIR AND EQUITABLE," INCORPORATES THE PRINCIPLE OF FULL PRIORITY IN
THE TREATMENT TO BE ACCORDED VARIOUS CLASSES OF SECURITY INTERESTS. 
THIS RIGHT TO PRIORITY IN ASSETS WHICH EXISTS BETWEEN CREDITORS AND
STOCKHOLDERS, EXISTS ALSO BETWEEN VARIOUS CLASSES OF STOCKHOLDERS. 
WHEN BY CONTRACT AS EVIDENCED BY CHARTER PROVISIONS ONE CLASS OF
STOCKHOLDERS IS SUPERIOR TO ANOTHER IN ITS CLAIM AGAINST EARNINGS OR
ASSETS, THAT SUPERIOR POSITION MUST BE RECOGNIZED BY COURTS OR AGENCIES
WHICH DEAL WITH THE EARNINGS OR ASSETS OF SUCH A COMPANY.  FAIRNESS AND
EQUITY REQUIRE THIS CONCLUSION.  EVEN BEFORE OUR DECISION IN CASE V.
LOS ANGELES LUMBER PRODUCTS CO. ON NOVEMBER 6, 1939, RECENT FEDERAL
CASES HAD RECOGNIZED THIS PRIORITY.  FN16  THAT HAS BEEN THEIR VIEW
SINCE THE CASE DECISION, IN RE PORTO RICAN AMERICAN TOBACCO CO., 112
F.2D 655, 656-57.  THIS IS THE RULE APPLIED BY THE COMMISSION IN THE
SIMPLIFICATION OF CORPORATE STRUCTURE.  THE COMMISSION RECOGNIZES AND
APPLIES THE DOCTRINE OF FULL PRIORITY BY GIVING VALUE TO THE RIGHTS OF
THE PREFERRED IN A GOING CONCERN RATHER THAN AS IF BY SALE AND
DISTRIBUTION.  ITS VIEWS ARE STATED BELOW.  FN17  THE ISSUE IN THIS
CASE IS NOT WHETHER FULL PRIORITY SHOULD BE GIVEN TO PREFERRED OVER
COMMON STOCKHOLDERS BUT WHETHER THE PRIORITY WHICH IS ESTABLISHED BY
THE CHARTER, NOTE 6, IS APPLICABLE TO A SIMPLIFICATION BY LIQUIDATION
UNDER SEC. 11(B)(2) AND (E).  THERE IS AN ARGUMENT THAT IF THE CHARTER
PROVISION APPLIES TO THIS SITUATION, IT CANNOT BE DISREGARDED AND THAT
IN SUCH A LIQUIDATION "FAIR AND EQUITABLE" WOULD REQUIRE THE
DISTRIBUTION OF ASSETS ONLY TO THE PREFERRED.  WE DO NOT REACH THAT
QUESTION.  THE POINT AT ISSUE IS WHETHER THIS CHARTER PROVISION
APPLIES. 

THE APPLICABILITY OF THE CHARTER PROVISION UNDER THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935 IS A MATTER OF FEDERAL LAW.  FN18 

WHEN THE PRESIDENT SENT TO CONGRESS THE REPORT OF THE NATIONAL POWER
POLICY COMMITTEE WHICH PLACED THE SUGGESTIONS OF THE EXECUTIVE ON
HOLDING COMPANIES BEFORE THE LEGISLATIVE BODY, HE SAID OF THE PENDING
PUBLIC UTILITY HOLDING COMPANY BILL: 

"SUCH A MEASURE WILL NOT DESTROY LEGITIMATE BUSINESS OR WHOLESOME AND
PRODUCTIVE INVESTMENT.  IT WILL NOT DESTROY A PENNY OF ACTUAL VALUE OF
THOSE OPERATING PROPERTIES WHICH HOLDING COMPANIES NOW CONTROL AND
WHICH HOLDING COMPANY SECURITIES REPRESENT INSOFAR AS THEY HAVE ANY
VALUE.  ON THE CONTRARY, IT WILL SURROUND THE NECESSARY REORGANIZATION
OF THE HOLDING COMPANY WITH SAFEGUARDS WHICH WILL IN FACT PROTECT THE
INVESTOR."  S. REP. NO. 621, 74TH CONG., 1ST SESS., P. 2. 

THAT REPORT URGED THE SAME CARE TO INVESTORS: 

"SIMPLIFICATION AND REORGANIZATION OF HOLDING-COMPANY STRUCTURES,
MAKING POSSIBLE WITHIN A REASONABLE PERIOD THE PRACTICAL ELIMINATION OF
THE HOLDING COMPANY, SHOULD BE CONDUCTED UNDER THE COMMISSION'S
SUPERVISION OVER A PERIOD OF TIME TO PREVENT UNDUE LOSSES TO SECURITY
HOLDERS FROM INVESTMENT DISLOCATIONS."  ID., P. 60.  OF COURSE,
CONGRESS WOULD WISH, IN SIMPLIFYING A HOLDING COMPANY SYSTEM CAPITAL
STRUCTURE, TO PRESERVE VALUES TO INVESTORS, NOT TO DESTROY THEM.  FN19
CONSEQUENTLY, WHILE GIVING THE COMMISSION POWER TO COMPEL THE
ELIMINATION OF HOLDING COMPANIES DEEMED UNECONOMIC, IT ALLOWED THE
AFFECTED COMPANIES TO PROPOSE PLANS TO THE COMMISSION TO EFFECTUATE THE
OBJECTS AND THE COMMISSION TO APPROVE SUCH PLANS WHEN THEY WERE
CONSIDERED "FAIR AND EQUITABLE."  SECS. 11(B)(2) AND (E), NOTES 3 AND
4. 

IT MAY BE THAT IF THE CHARTER LIQUIDATION PREFERENCE WERE HELD TO
COVER THIS SITUATION IT WOULD NOT FRUSTRATE THE SIMPLIFICATION OF THE
HOLDING COMPANY SYSTEM, TO THE SAME DEGREE THAT THE GOLD CLAUSE
AGREEMENTS INTERFERED WITH THE POWER OF CONGRESS TO REGULATE THE GOLD
CONTENT OF THE DOLLAR.  NORMAN V. B. & O.R. CO., 294 U.S. 240, 306, ET
SEQ., AND CASES CITED.  DISTRIBUTION TO PREFERRED STOCKHOLDERS ONLY
WITH DISREGARD OF COMMON'S INTEREST WOULD ELIMINATE POWER AND CURE THE
SYSTEM'S PRESENT INCONSISTENCY WITH THE GREAT-GRANDFATHER CLAUSE.  WE
THINK, HOWEVER, THE CHARTER PREFERENCE IS INOPERATIVE IN SIMPLIFICATION
UNDER SEC. 11(B)(2).  THE PROVISION HAVING BEEN ADOPTED IN 1929, SIX
YEARS PRIOR TO ENACTMENT OF THE PUBLIC UTILITY HOLDING COMPANY ACT, A
"SIMPLIFICATION" UNDER THIS ACT, HAVING AS AN INCIDENT TO IT THE
DISSOLUTION OF ONE COMPANY IN A HOLDING COMPANY SYSTEM, WAS NOT AN
ANTICIPATED "LIQUIDATION" WITHIN THE MEANING OF POWER'S CHARTER
PROVISION.  ENFORCEMENT OF AN OVERRIDING PUBLIC POLICY SHOULD NOT HAVE
ITS EFFECT VISITED ON ONE CLASS WITH A CORRESPONDING WINDFALL TO
ANOTHER CLASS OF SECURITY HOLDERS.  NOR SHOULD COMMON STOCK VALUES BE
MADE TO DEPEND ON WHETHER THE COMMISSION, IN ENFORCING COMPLIANCE WITH
THE ACT, RESORTS TO DISSOLUTION OF A PARTICULAR COMPANY IN THE HOLDING
COMPANY SYSTEM, OR RESORTS INSTEAD TO THE DEVICES OF MERGER OR
CONSOLIDATION, WHICH WOULD NOT RUN AFOUL OF A CHARTER PROVISION
FORMULATED YEARS BEFORE ADOPTION OF THE ACT IN QUESTION.  THE
COMMISSION IN ITS ENFORCEMENT OF THE POLICIES OF THE ACT SHOULD NOT BE
HAMPERED IN ITS DETERMINATION OF THE PROPER TYPE OF HOLDING COMPANY
STRUCTURE BY CONSIDERATIONS OF AVOIDANCE OF HARSH EFFECTS ON VARIOUS
STOCK INTERESTS WHICH MIGHT RESULT FROM ENFORCEMENT OF CHARTER
PROVISIONS OF DOUBTFUL APPLICABILITY TO THE PROCEDURES UNDERTAKEN. 
WHERE PRE-EXISTING CONTRACT PROVISIONS EXIST WHICH PRODUCE RESULTS AT
VARIANCE WITH A LEGISLATIVE POLICY WHICH WAS NOT FORESEEABLE AT THE
TIME THE CONTRACT WAS MADE, THEY CANNOT BE PERMITTED TO OPERATE. 
COMPARE NEW YORK TRUST CO. V. SECURITIES & EXCHANGE COMMISSION, 131
F.2D 274; IN RE LACLEDE GAS LIGHT CO., 57 F.SUPP.  997.  THE REASON
DOES NOT LIE IN THE FACT THAT THE BUSINESS OF POWER CONTINUES IN
ANOTHER FORM.  THAT IS TRUE OF BANKRUPTCY AND EQUITY REORGANIZATION. 
IT LIES IN THE FACT THAT CONGRESS DID NOT INTEND THAT ITS EXERCISE OF
POWER TO SIMPLIFY SHOULD MATURE RIGHTS, CREATED WITHOUT REGARD TO THE
POSSIBILITY OF SIMPLIFICATION OF SYSTEM STRUCTURE, WHICH OTHERWISE
WOULD ONLY ARISE BY VOLUNTARY ACTION OF STOCKHOLDERS OR, INVOLUNTARILY,
THROUGH ACTION OF CREDITORS.  WE MUST ASSUME THAT CONGRESS INTENDED TO
EXERCISE ITS POWER WITH THE LEAST POSSIBLE HARM TO CITIZENS. 

BUT IT IS SAID THAT SUCH A CONCLUSION IS AT VARIANCE WITH THIS
COURT'S RULING IN CONTINENTAL INSURANCE CO. V. UNITED STATES, 259 U.S.
156.  IN THAT CASE A LIQUIDATION OF THE READING COMPANY, A HOLDER OF
INTERESTS IN RAILROADS AND COAL MINES, WAS COMPELLED BY GOVERNMENTAL
PROSECUTION SO THAT IT WOULD NOT BE OPERATING IN VIOLATION OF THE
SHERMAN ANTI-TRUST ACT OR THE HEPBURN ACT.  FN20  ITS COAL PROPERTIES,
CORPORATE ASSETS, WERE PASSED TO A NEWLY ORGANIZED COAL COMPANY, THE
VALUE OF WHOSE STOCK, BY NEGOTIABLE CERTIFICATES OF INTEREST, CAME INTO
POSSESSION OF READING'S OLD STOCKHOLDERS INDIVIDUALLY.  THE
DISTRIBUTION GAVE EQUAL PARTICIPATION IN THE COAL PROPERTIES TO THE
COMMON AND PREFERRED STOCK IN ACCORDANCE WITH THE CHARTER AGREEMENT AS
TO ASSETS ON LIQUIDATION, PAGES 177-181.  THE COMMON STOCK CONTENDED
THAT AS THE VALUE OF THE COAL PROPERTIES WAS SURPLUS, ALL OF THE COAL
CERTIFICATES SHOULD GO TO THE COMMON STOCKHOLDERS AS IN A CONTINUING
BUSINESS.  THUS, BY ITS APPROVAL OF THE DISTRIBUTION, THIS COURT
HANDLED THE LIQUIDATION, WHICH WAS FORCED BY LAW, SAYS PETITIONER, IN
ACCORDANCE WITH THE CHARTER PROVISIONS AND NOT AS THOUGH IT WERE A
CONTINUING BUSINESS. 

THE CONTINENTAL OR READING CASE TURNED, HOWEVER, ON THE CHARTER
RIGHTS OF THE PREFERRED TO SHARE EQUALLY WITH THE COMMON IN EARNINGS
WHICH HAD BECOME ASSETS, PAGES 179-80, NOT ON WHETHER A RIGHT TO SHARE
WAS MATURED OR VARIED BY GOVERNMENTAL ACTION.  CONTRARY TO THE
SITUATION IN THIS PRESENT CASE, THE CHARTER PROVISIONS OF THE READING
COMPANY WERE ADOPTED WITH KNOWLEDGE OF THE SANCTIONS OF THE SHERMAN ACT
AGAINST MONOPOLY.  259 U.S. 177 AND 171.  WE DO NOT FEEL CONSTRAINED BY
ITS DEALING WITH CHARTER RIGHTS AS IN A NORMAL LIQUIDATION TO HOLD THAT
WHERE LIQUIDATION IS ADOPTED AS A MATTER OF ADMINISTRATIVE ROUTINE, THE
PREFERENCES ARE THEREBY MATURED. 

AS INDICATED EARLIER IN THIS OPINION, WE HAVE NOT UNDERTAKEN TO
REVIEW THE FACTS TO DETERMINE WHETHER THE ALLOCATION OF STOCK BETWEEN
THE PREFERRED AND COMMON IS IN PROPER PROPORTION.  THAT ISSUE IS NOT
MADE.  IT WAS VIGOROUSLY DISCUSSED BY COMMISSIONER HEALY IN THE
DISSENTING OPINION.  HOLDING COMPANY ACT RELEASE 4215, P. 39 ET SEQ.
SEE DODD, HOLDING COMPANY ACT RECAPITALIZATIONS, 57 HARV. L. REV. 295,
319.  THE ALLOCATION PROPERLY MAY BE MADE WITHOUT DOLLAR VALUATION SO
LONG AS "EACH SECURITY HOLDER IN THE ORDER OF HIS PRIORITY RECEIVES
FROM THAT WHICH IS AVAILABLE FOR THE SATISFACTION OF HIS CLAIM THE
EQUITABLE EQUIVALENT OF THE RIGHTS SURRENDERED."  GROUP OF INVESTORS V.
CHICAGO, M., ST. P. & P.R. CO., 318 U.S. 523, 565; CONSOLIDATED ROCK
PRODUCTS CO. V. DU BOIS, 312 U.S. 510, 529-30; ECKER V. WESTERN PACIFIC
R. CORP., 318 U.S. 448, 482; KANSAS CITY TERMINAL R. CO. V. CENTRAL
UNION TRUST CO., 271 U.S. 445, 455. 

AS THE PARTIES HAVE NOT CHALLENGED THEM, WE HAVE NOT CONSIDERED IN
ANY WAY THE CONSTITUTIONALITY OF THE SECTIONS OF THE HOLDING COMPANY
ACT INVOLVED.  AFFIRMED. 

FN1  49 STAT. 803. 

FN2  THE FINDINGS AND OPINION WHICH LED TO THIS ORDER ARE FOUND IN IN
THE MATTER OF THE UNITED LIGHT AND POWER COMPANY, 8 S.E.C. 837. 

FN3  "IT SHALL BE THE DUTY OF THE COMMISSION, AS SOON AS PRACTICABLE
AFTER JANUARY 1, 1938: 

     .         .         .         . . 

"(2)  TO REQUIRE BY ORDER, AFTER NOTICE AND OPPORTUNITY FOR HEARING,
THAT EACH REGISTERED HOLDING COMPANY, AND EACH SUBSIDIARY COMPANY
THEREOF, SHALL TAKE SUCH STEPS AS THE COMMISSION SHALL FIND NECESSARY
TO ENSURE THAT THE CORPORATE STRUCTURE OR CONTINUED EXISTENCE OF ANY
COMPANY IN THE HOLDING-COMPANY SYSTEM DOES NOT UNDULY OR UNNECESSARILY
COMPLICATE THE STRUCTURE, OR UNFAIRLY OR INEQUITABLY DISTRIBUTE VOTING
POWER AMONG SECURITY HOLDERS, OF SUCH HOLDING-COMPANY SYSTEM.  IN
CARRYING OUT THE PROVISIONS OF THIS PARAGRAPH THE COMMISSION SHALL
REQUIRE EACH REGISTERED HOLDING COMPANY (AND ANY COMPANY IN THE SAME
HOLDING-COMPANY SYSTEM WITH SUCH HOLDING COMPANY) TO TAKE SUCH ACTION
AS THE COMMISSION SHALL FIND NECESSARY IN ORDER THAT SUCH HOLDING
COMPANY SHALL CEASE TO BE A HOLDING COMPANY WITH RESPECT TO EACH OF ITS
SUBSIDIARY COMPANIES WHICH ITSELF HAS A SUBSIDIARY COMPANY WHICH IS A
HOLDING COMPANY  ...."  49 STAT. 820-21, SEC. 11(B)(2). 

FN4  "(E)  IN ACCORDANCE WITH SUCH RULES AND REGULATIONS OR ORDER AS
THE COMMISSION MAY DEEM NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST
OR FOR THE PROTECTION OF INVESTORS OR CONSUMERS, ANY REGISTERED HOLDING
COMPANY OR ANY SUBSIDIARY COMPANY OF A REGISTERED HOLDING COMPANY MAY,
AT ANY TIME AFTER JANUARY 1, 1936, SUBMIT A PLAN TO THE COMMISSION FOR
THE DIVESTMENT OF CONTROL, SECURITIES, OR OTHER ASSETS, OR FOR OTHER
ACTION BY SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF FOR THE
PURPOSE OF ENABLING SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF TO
COMPLY WITH THE PROVISIONS OF SUBSECTION (B).  IF, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, THE COMMISSION SHALL FIND SUCH PLAN, AS
SUBMITTED OR AS MODIFIED, NECESSARY TO EFFECTUATE THE PROVISIONS OF
SUBSECTION (B) AND FAIR AND EQUITABLE TO THE PERSONS AFFECTED BY SUCH
PLAN, THE COMMISSION SHALL MAKE AN ORDER APPROVING SUCH PLAN; AND THE
COMMISSION, AT THE REQUEST OF THE COMPANY, MAY APPLY TO A COURT, IN
ACCORDANCE WITH THE PROVISIONS OF SUBSECTION (F) OF SECTION 18, TO
ENFORCE AND CARRY OUT THE TERMS AND PROVISIONS OF SUCH PLAN.  IF, UPON
ANY SUCH APPLICATION, THE COURT, AFTER NOTICE AND OPPORTUNITY FOR
HEARING, SHALL APPROVE SUCH PLAN AS FAIR AND EQUITABLE AND AS
APPROPRIATE TO EFFECTUATE THE PROVISIONS OF SECTION 11, THE COURT AS A
COURT OF EQUITY MAY, TO SUCH EXTENT AS IT DEEMS NECESSARY FOR THE
PURPOSE OF CARRYING OUT THE TERMS AND PROVISIONS OF SUCH PLAN, TAKE
EXCLUSIVE JURISDICTION AND POSSESSION OF THE COMPANY OR COMPANIES AND
THE ASSETS THEREOF, WHEREVER LOCATED; AND THE COURT SHALL HAVE
JURISDICTION TO APPOINT A TRUSTEE, AND THE COURT MAY CONSTITUTE AND
APPOINT THE COMMISSION AS SOLE TRUSTEE, TO HOLD OR ADMINISTER, UNDER
THE DIRECTION OF THE COURT AND IN ACCORDANCE WITH THE PLAN THERETOFORE
APPROVED BY THE COURT AND THE COMMISSION, THE ASSETS SO POSSESSED."  49
STAT. 822, SEC. 11(E). 

FN5  THE DETAILS ARE FULLY COVERED IN 8 S.E.C. 837 AND APPLICATION
14, RELEASE NO. 4215. 

FN6  POWER'S CHARTER PROVIDES:  "UPON THE DISSOLUTION OR LIQUIDATION
OF THE CORPORATION, WHETHER VOLUNTARY OR INVOLUNTARY, THE HOLDERS OF
THE CLASS A PREFERRED STOCK SHALL BE ENTITLED TO RECEIVE OUT OF THE NET
ASSETS OF THE CORPORATION, WHETHER CAPITAL OR SURPLUS, FOR EACH SHARE
OF SUCH STOCK, ONE HUNDRED DOLLARS AND A SUM OF MONEY EQUIVALENT TO ALL
CUMULATIVE DIVIDENDS ON SUCH SHARE, BOTH ACCRUED AND IN ARREARS
(WHETHER OR NOT THE SAME SHALL HAVE BEEN DECLARED OR EARNED), INCLUDING
THE FULL DIVIDEND FOR THE THEN CURRENT QUARTERLY PERIOD, BEFORE ANY
PAYMENT IS MADE TO THE HOLDERS OF ANY STOCK OTHER THAN THE CLASS A
PREFERRED STOCK.  ANY ASSETS THEREAFTER REMAINING SHALL BE
DISTRIBUTABLE AMONG HOLDERS OF STOCK OTHER THAN THE CLASS A PREFERRED
STOCK IN ACCORDANCE WITH THEIR RIGHTS AT THE TIME OF THE
DISTRIBUTION." 

THE AMENDED CHARTER (1929) ALSO CONTAINS THE FOLLOWING: 

"THE COMMON STOCK OF THE COMPANY SHALL BE SUBJECT TO THE RIGHTS OF
THE HOLDERS OF THE CLASS A PREFERRED STOCK." 

FN7  THE TWO CLASSES ARE ENTITLED TO THE SAME RIGHTS, EXCEPT THE B
HAS VOTES.  AS THERE IS NO DISPUTE BEFORE US AS TO THE RELATIVE RIGHTS
OR PRIORITIES OF THE COMMON, THE TWO CLASSES WILL BE TREATED IN THIS
OPINION AS A SINGLE CLASS OF COMMON. 

FN8  "IN ORDER TO SHOW A VALUE OF AS MUCH AS $98,700,000, IT WOULD BE
NECESSARY TO CAPITALIZE 1942 CONSOLIDATED NET EARNINGS APPLICABLE TO
THE COMMON STOCK OF RAILWAYS (THE HIGHEST EARNINGS SINCE 1931) AT A
RATE OF 6.9%, A TIMES-EARNINGS RATIO OF 14.5.  EVEN IF THE MOST LIBERAL
ESTIMATE OF EARNINGS MADE BY THE MANAGEMENT, IN THE AMOUNT OF
$7,000,000, BE TAKEN AS THE MEASURE OF PROSPECTIVE EARNING POWER,
CAPITALIZATION OF SUCH EARNINGS AT A RATE PRODUCING A TIMES-EARNINGS
RATIO OF 14.1 IS NECESSARY TO REACH AN OVER-ALL VALUE OF $98,700,000." 
RELEASE NO. 4215, PP. 7-8. 

THE COMMISSION ILLUSTRATED THE MARKET VALUATION BY TIMES-EARNINGS
RATIO BY POINTING OUT THAT FOR NINE REPRESENTATIVE PUBLIC UTILITY
HOLDING COMPANIES IT HAD AVERAGED FROM A HIGH OF 12.5 IN 1937 TO A LOW
OF 5.1 IN 1942 WITH 1943 AT 7.1.  ID. 

FN9  RELEASE NO. 4215, PP. 9-12. 

FN10  8 S.E.C. 842.    FN11  RELEASE NO. 4215, P. 18. 

FN12  ID., P. 19. 

FN13  NORTHERN PACIFIC R. CO. V. BOYD, 228 U.S. 482; CASE V. LOS
ANGELES LUMBER PRODUCTS CO., 308 U.S. 106; CONSOLIDATED ROCK PRODUCTS
CO. V. DU BOIS, 312 U.S. 510; MARINE PROPERTIES V. MANUFACTURERS TRUST
CO., 317 U.S. 78; ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448;
GROUP OF INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318 U.S. 523. 

FN14  CREDITORS' CONTRACTS ALSO HAVE BEEN DECLARED SUBJECT TO
EQUITABLE ADJUSTMENT IN CORPORATE REORGANIZATIONS SO LONG AS THEY
RECEIVE "FULL COMPENSATORY TREATMENT" WHETHER THE REORGANIZATION IS IN
BANKRUPTCY (KANSAS CITY TERMINAL R. CO. V. CENTRAL UNION TRUST CO., 271
U.S. 445, 455; CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, 312 U.S. 510,
528-30; GROUP OF INVESTORS V. CHICAGO, M., ST. P. & P.R. CO., 318 U.S.
523, 565-66) OR IN COMPLIANCE WITH REGULATORY STATUTES.  CONTINENTAL
INS. CO. V. UNITED STATES, 259 U.S. 156, 170-76.  THE FULL PRIORITY
RULE APPLIES TO REORGANIZATIONS OF SOLVENT COMPANIES.  CONSOLIDATED
ROCK PRODUCTS CO. V. DU BOIS, 312 U.S. 510, 527. 

FN15  SEE IN THE MATTER OF JACKSONVILLE GAS COMPANY, HOLDING COMPANY
ACT RELEASE NO. 3570, IN RE JACKSONVILLE GAS CO., 46 F.SUPP.  852,
856. 

FN16  IN RE NEW YORK RAILWAYS CORP., 82 F.2D 739, 743-44; IN RE
NATIONAL FOOD PRODUCTS CORP., 23 F.SUPP.  979, 985; IN RE UTILITIES
POWER & LIGHT CORP., 29 F.SUPP.  763, 769. 

FN17  "IT IS POINTED OUT IN COMMISSIONER HEALY'S SEPARATE OPINION
THAT THE WORDS 'FAIR AND EQUITABLE' EMBODIED IN SECTION 11 HAVE A
SETTLED MEANING, AS DETERMINED BY THE COURTS, AND THAT AN APPLICATION
OF THE 'ABSOLUTE PRIORITIES' DOCTRINE MUST RESULT IN NO DISTRIBUTION TO
POWER'S COMMON STOCK IN THIS CASE.  BUT THAT IS BECAUSE HE MEASURES THE
RIGHTS OF THE PREFERRED STOCK AS THEY WOULD BE MEASURED IN BANKRUPTCY
CASES, AND NOT MERELY BECAUSE HE FOLLOWS THE 'ABSOLUTE PRIORITIES'
DOCTRINE IN DETERMINING THE CONSEQUENCES OF THE MEASUREMENT.  IN OTHER
WORDS, WE CAN AGREE WITH HIM WHEN HE SAYS THAT ABSOLUTE PRIORITIES MUST
BE RESPECTED, BECAUSE WE THINK THAT DOCTRINE SIMPLY MEANS THAT THE
COMMON STOCK MUST NOT BE ACCORDED ANY PARTICIPATION UNLESS THE
PREFERRED STOCK HAS BEEN FULLY COMPENSATED FOR ITS RIGHTS AND
PRIORITIES.  BUT THERE THE AREA OF AGREEMENT STOPS, BECAUSE HE SAYS
FURTHER THAT THE RIGHTS AND PRIORITIES OF THE PREFERRED STOCKHOLDERS
ARE THE SAME HERE AS IN BANKRUPTCY CASES, WHERE THEIR CLAIMS TO
LIQUIDATION PREFERENCES (INCLUDING DIVIDEND ARREARAGES) ARE TREATED AS
MATURED.  IN OUR VIEW IT WOULD BE UNCONSCIONABLE AND CONTRARY TO THE
PLAIN INTENTION OF CONGRESS TO SO HOLD."  HOLDING COMPANY ACT RELEASE
NO. 4215, P. 12. 

"UNDER THE CIRCUMSTANCES, FAIR AND EQUITABLE COMPENSATION WILL BE
GIVEN TO ALL OF THE CLAIMANTS IF THEIR RIGHTS ARE MEASURED NOT IN TERMS
OF THE SITUATION CREATED BY THE STATUTE BUT RATHER IN TERMS OF THE
SITUATION TERMINATED BY IT - I.E., AS THOUGH NO LIQUIDATION WERE TO
TAKE PLACE.  IN THIS WAY, EACH CLASS OF STOCK WILL BE ACCORDED ITS
PROPORTIONATE SHARE OF THE BENEFITS TO BE GAINED FROM THE ELIMINATION
OF A USELESS AND EXPENSIVE CORPORATE ENTITY AND FROM THE RECEIPT OF A
SECURITY REPRESENTING A MORE DIRECT INVESTMENT IN THE UNDERLYING ASSETS
AND EARNINGS OF THE SYSTEM."  ID., P. 13. 

FN18  JEROME V. UNITED STATES, 318 U.S. 101, 104; WRAGG V. FEDERAL
LAND BANK, 317 U.S. 325, 328; CHICAGO BOARD OF TRADE V. JOHNSON, 264
U.S. 1, 10; SOLA ELECTRIC CO. V. JEFFERSON CO., 317 U.S. 173, 176;
LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S. 111, 120, 129; CLEARFIELD
TRUST CO. V. UNITED STATES, 318 U.S. 363, 366; O'BRIEN V. WESTERN UNION
TELEGRAPH CO., 113 F.2D 539, 541. 

FN19  "SUCH DISPOSITION AS MAY BE NECESSARY CAN BE ACCOMPLISHED BY
REORGANIZATION WHICH WILL EQUITABLY REDISTRIBUTE SECURITIES AMONG
EXISTING SECURITY HOLDERS."  S. REP. NO. 621, 74TH CONG., 1ST SESS., P.
16; H. REP. NO. 1318, 74TH CONG., 1ST SESS., PP. 49-50. 

FN20  259 U.S. 156 AT 177; UNITED STATES V. READING CO., 253 U.S. 26;
26 STAT. 209; 34 STAT. 584. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. CHIEF JUSTICE STONE, DISSENTING. 

MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER AND I THINK THE JUDGMENT
BELOW SHOULD BE REVERSED. 

THE UNITED LIGHT AND POWER COMPANY, THE SUBJECT OF THIS LITIGATION,
IS A HOLDING COMPANY SUBJECT TO PROVISIONS OF THE PUBLIC UTILITY
HOLDING COMPANY ACT OF AUGUST 26, 1935, 49 STAT. 803.  IT HAS
$60,000,000 PAR VALUE OF CLASS A PREFERRED STOCK, OF WHICH PETITIONER
HOLDS SOME SHARES, AND TWO CLASSES OF COMMON STOCK.  THE CORPORATE
CHARTER PROVIDES: 

"UPON THE DISSOLUTION OR LIQUIDATION OF THE CORPORATION, WHETHER
VOLUNTARY OR INVOLUNTARY, THE HOLDERS OF THE CLASS A PREFERRED STOCK
SHALL BE ENTITLED TO RECEIVE OUT OF THE NET ASSETS OF THE CORPORATION,
WHETHER CAPITAL OR SURPLUS, FOR EACH SHARE OF SUCH STOCK, ONE HUNDRED
DOLLARS AND A SUM OF MONEY EQUIVALENT TO ALL CUMULATIVE DIVIDENDS ON
SUCH SHARE, BOTH ACCRUED AND IN ARREARS (WHETHER OR NOT THE SAME SHALL
HAVE BEEN DECLARED OR EARNED), INCLUDING THE FULL DIVIDEND FOR THE THEN
CURRENT QUARTERLY PERIOD, BEFORE ANY PAYMENT IS MADE TO THE HOLDERS OF
ANY STOCK OTHER THAN THE CLASS A PREFERRED STOCK." 

THE DIVIDENDS ON THE PREFERRED STOCK ACCRUED AND UNPAID AMOUNT TO
$64.50 PER SHARE, AND THE TOTAL PRIORITY OF THE PREFERRED STOCK AS
PROVIDED BY THE CORPORATE CHARTER IS $98,700,000. 

COMMISSION, AFTER AN EXAMINATION OF THEIR CORPORATE STRUCTURES, "TO
COMPEL THE SIMPLIFICATION OF PUBLICUTILITY HOLDING-COMPANY SYSTEMS" AND
TO REQUIRE ANY SUCH HOLDING COMPANY "TO TAKE SUCH ACTION AS THE
COMMISSION SHALL FIND NECESSARY IN ORDER THAT SUCH HOLDING COMPANY
SHALL CEASE TO BE A HOLDING COMPANY WITH RESPECT TO EACH OF ITS
SUBSIDIARY COMPANIES WHICH ITSELF HAS A SUBSIDIARY COMPANY WHICH IS A
HOLDING COMPANY."  SECTION 11(E) REQUIRES ANY PLAN OF REORGANIZATION
APPROVED BY THE COMMISSION TO BE "FAIR AND EQUITABLE TO THE PERSONS
AFFECTED BY SUCH PLAN." 

ACTING UNDER THESE PROVISIONS OF SEC. 11 THE COMMISSION HAS ORDERED
THAT UNITED BE "LIQUIDATED AND DISSOLVED" AS A STEP IN THE
SIMPLIFICATION OF THE HOLDING COMPANY STRUCTURE, SO THAT UNITED SHALL
CEASE TO BE A HOLDING COMPANY AS COMMANDED BY SEC. 11(B)(2), AND ITS
STOCKHOLDERS SHALL BECOME STOCKHOLDERS IN ITS SUBSIDIARY, RAILWAYS CO.
THE COMMISSION, IN ORDERING DISSOLUTION AND LIQUIDATION OF THE COMPANY,
AND PROVIDING FOR THE DISTRIBUTION OF ITS ASSETS, FOUND THAT THE
STIPULATED PRIORITY OF THE PREFERRED STOCK IS FAR IN EXCESS OF THE
PRESENT VALUE OF THE COMPANY'S ASSETS.  IT SAID THAT IF THE STIPULATED
PRIORITY "IS CONTROLLING, OUR INQUIRY MUST PERFORCE BE ENDED AT THIS
POINT IN A DECISION THAT THE PREFERRED STOCK IS ENTITLED TO ALL THE
ASSETS OF THE CORPORATION TO THE EXCLUSION OF THE COMMON." 

NEVERTHELESS, THE COMMISSION HAS ORDERED, AND THIS COURT SUSTAINS THE
ORDER, THAT ONLY 94.52% OF THE ASSETS OF THE COMPANY BE ALLOCATED TO
THE PREFERRED STOCK UPON LIQUIDATION AND 5.48% TO THE COMMON.  FOR
PURPOSES OF LIQUIDATION THE COMMISSION MEASURED THE RIGHTS OF THE
DIFFERENT CLASSES OF STOCKHOLDERS IN TERMS OF THE ESTIMATED VALUE OF
THEIR INTERESTS AS THOUGH THE LIQUIDATION WHICH THE COMMISSION HAD
ORDERED WERE NOT TO TAKE PLACE AND THE CORPORATION WERE TO CONTINUE AS
A GOING CONCERN.  IN SHORT, IN LIQUIDATING THE CORPORATION IT
DETERMINED, AS THE OPINION OF THE COURT DECLARES, THAT IN DISTRIBUTING
THE ASSETS OF THE CORPORATION AMONG ITS STOCKHOLDERS THE RIGHTS OF THE
STOCKHOLDERS "MAY BE EVALUATED ON THE BASIS OF A GOING BUSINESS AND NOT
AS THOUGH A LIQUIDATION WERE TAKING PLACE." 

PEERING INTO THE FUTURE WITH ALMOST CLAIRVOYANT PERCIPIENCE THE
COMMISSION PROPHESIED THAT IF THE COMPANY NOW BEING LIQUIDATED AND
DISSOLVED WERE ALLOWED TO CONTINUE ITS OPERATIONS IT WOULD, FIFTEEN
YEARS HENCE, HAVE PAID ALL ARREARS OF DIVIDENDS ON THE PREFERRED AND
WOULD THEN BE ABLE TO PAY AN ESTIMATED ANNUAL RETURN ON THE COMMON
STOCK IN EXCESS OF $2,500,000.  THIS PROPHECY ASSUMED AVERAGE FUTURE
EARNINGS IN EXCESS OF $6,000,000 A YEAR, A SUM WHICH "ACTUAL EARNINGS
...  HAVE NEVER IN THE PAST TEN YEARS EXCEEDED  ..., EXCEPT IN 1942." 
THIS PROGNOSIS, THE COMMISSION THOUGHT, AFFORDED JUSTIFICATION FOR
DISTRIBUTING THE ASSETS OF THE CORPORATION UPON ITS LIQUIDATION AND
DISSOLUTION, NOT ACCORDING TO THE STIPULATED PRIORITY OF THE PREFERRED
STOCK UPON LIQUIDATION, WHICH IS IN FACT TAKING PLACE, OR INDEED IN
CONFORMITY TO ITS PRIORITY RIGHT TO CURRENT EARNINGS IF THE COMPANY
WERE TO CONTINUE UNLIQUIDATED.  FOR BY THE COMMISSION'S ORDER THE
PREFERRED IS REQUIRED TO SURRENDER TO THE COMMON WHAT IS THE EQUIVALENT
OF MORE THAN 5% OF ITS FIXED PRIORITY RIGHT TO THE ANNUAL EARNINGS FROM
THE ASSETS OF THE COMPANY, WHICH EARNINGS OF A "GOING BUSINESS" WOULD
BE REQUIRED TO SATISFY DIVIDENDS ON THE PREFERRED BEFORE ANY PAYMENT OF
DIVIDENDS ON THE COMMON.  THE PREFERRED STOCKHOLDERS ARE THUS DENIED
THE PRIORITY FOR WHICH THEY HAVE STIPULATED ON LIQUIDATION, AND ALSO
THE PRIORITY WITH RESPECT TO CURRENT EARNINGS TO WHICH THEY WOULD BE
ENTITLED BY VIRTUE OF THEIR POSITION AS PREFERRED STOCKHOLDERS IF THE
COMPANY, WHICH HAS BEEN IN FACT CONDEMNED TO DEATH BY THE COMMISSION,
IS, AS THE COMMISSION AT THE SAME TIME SUPPOSES, TO BE REGARDED AS
LIVING AND FUNCTIONING AS "A GOING BUSINESS." 

THE JUDGMENT OF THE COURT BELOW SUSTAINING SO EXTRAORDINARY A RESULT
SHOULD, IN OUR OPINION, BE REVERSED BECAUSE THE COMMISSION, WITHOUT
AUTHORITY IN LAW AND CONTRARY TO THE COMMAND OF THE STATUTE, HAS
DISREGARDED THE PLAIN TERMS OF THE CORPORATE CHARTER CONTROLLING
PRIORITY OF THE PREFERRED STOCK UPON LIQUIDATION OF THE COMPANY WHETHER
VOLUNTARY OR INVOLUNTARY. 

THE OPINION OF THE COURT ADOPTS FOR ITS SUPPORT A GROUND WHICH THE
COMMISSION DECLINED TO ADOPT, AND THE DECISION OF THE COMMISSION RESTED
UPON A SECOND GROUND ON WHICH THE COURT APPEARS NOT TO RELY.  WE THINK
IT CLEAR THAT NEITHER GROUND IS SUPPORTABLE.  THE FIRST IS THAT THE
CHARTER PROVISION FIXING THE PRIORITY OF THE PREFERRED STOCK IN THE
EVENT OF "LIQUIDATION" WAS NOT INTENDED TO APPLY AND IS INAPPLICABLE TO
A "LIQUIDATION" LIKE THE PRESENT.  FOR HERE, IT IS INSISTED, THE
LIQUIDATION, WHICH HAS IN FACT BEEN ORDERED AND IS BEING ENFORCED, IS
NEVERTHELESS TO BE REGARDED AS A FICTION, AND THE INTERESTS OF THE
DIFFERENT CLASSES OF STOCKHOLDERS ARE TO BE MEASURED BY RESORT TO THE
FICTION THAT THEY ARE CONTINUING INTERESTS IN A CORPORATION WHICH IS
NOT TO BE LIQUIDATED, BUT IS TO BE CONTINUED AS A GOING CONCERN.  THE
OTHER GROUND, ADOPTED BY THE COMMISSION, IS THAT IF THE CHARTER
PROVISION DOES APPLY THE COMMISSION IS FREE TO OVERRIDE IT BY ANY PLAN
OF DISTRIBUTION WHICH IT FINDS TO BE "FAIR AND EQUITABLE." 

AS TO THE FIRST IT IS PLAIN THAT THE COMPANY IS NOW BEING LIQUIDATED
AND DISSOLVED; THAT THE LIQUIDATION IS INVOLUNTARY; AND THAT SOME OF
THE CORPORATION'S ASSETS ARE BEING DISTRIBUTED TO THE COMMON STOCK
BEFORE SATISFACTION OF THE STIPULATED PRIORITY OF THE PREFERRED, AND
THIS WITH FULL KNOWLEDGE OF ALL CONCERNED THAT THE COMPANY IS WITHOUT
ASSETS TO SATISFY THE PRIORITY.  SINCE THESE ARE THE PRECISE CONDITIONS
ON WHICH THE PRIORITY PROVISION WAS, ACCORDING TO ITS TERMS, TO
OPERATE, IT IS NOT APPARENT WHY THIS "LIQUIDATION" IS NOT A
"LIQUIDATION" WITHIN THE MEANING OF THE CHARTER PROVISION. 

IT IS SAID THAT ALTHOUGH THE LIQUIDATION IS INVOLUNTARY, IT IS NOT
WITHIN THE CHARTER PROVISION, AND THAT THE STIPULATION FOR PRIORITY ON
LIQUIDATION MAY BE DISREGARDED BECAUSE THE HOLDING COMPANY ACT WAS
ENACTED AFTER THE ADOPTION OF THE CHARTER, AND HENCE THE PARTIES TO THE
INCORPORATION COULD NOT HAVE CONTEMPLATED A COMPULSORY LIQUIDATION
UNDER ITS PROVISIONS.  WE FIND IT DIFFICULT TO SUPPOSE THAT A
STOCKHOLDER WHO STIPULATES FOR PRIORITY UPON LIQUIDATION, WHETHER
VOLUNTARY OR INVOLUNTARY, IS AT ALL CONCERNED WITH THE PARTICULAR
SOURCE OF THE POWER WHICH MAY COMPEL THE LIQUIDATION OF HIS INVESTMENT
OR WITH THE PURPOSE OF ITS EXERCISE.  UNLESS WORDS HAVE LOST THEIR
MEANING, THE STIPULATION FOR PRIORITY IN THIS CASE CANNOT FAIRLY BE
TAKEN NOT TO INCLUDE ANY KIND OF A LIQUIDATION WHICH WOULD COMPEL THE
SURRENDER OF THE STOCKHOLDER'S INVESTMENT AND FORCE HIM TO SEVER HIS
CONNECTION WITH THE CORPORATION IN WHICH HE HAS INVESTED. 

WHEN THE PREFERRED STOCK OF THE UNITED WAS ISSUED IN 1929 THERE WERE
NUMEROUS STATUTES, STATE AND FEDERAL, WHICH AUTHORIZED LIQUIDATION AND
DISSOLUTION OF CORPORATIONS BY GOVERNMENT COMPULSION.  SEE FOR EXAMPLE
CONTINENTAL INSURANCE CO. V. UNITED STATES, 259 U.S. 156.  IT IS THE
VERIEST FICTION TO SAY THAT INVESTORS IN CORPORATE SECURITIES AT THAT
TIME COULD NOT OR DID NOT CONSIDER THE POSSIBILITY OF THE ADDITION OF A
SINGLE STATUTE TO THIS LIST, OR THAT THE STOCKHOLDERS OF UNITED BY THE
STIPULATION FOR PRIORITY UPON LIQUIDATION, VOLUNTARY OR INVOLUNTARY,
INTENDED TO EXCLUDE FROM ITS OPERATION ANY METHOD OF INVOLUNTARY
LIQUIDATION WHICH WOULD AFFECT THEIR INTERESTS.  TO CONCLUDE THAT THE
PRESENT STIPULATION FOR PRIORITY UPON INVOLUNTARY LIQUIDATION DID NOT
ENVISAGE A LIQUIDATION SUCH AS THIS ONE SEEMS LIKE SAYING THAT AN
INSURANCE POLICY PAYABLE ON THE DEATH OF THE INSURED CREATES NO
OBLIGATION IF THE INSURED DIES FROM A DISEASE WHICH WAS UNKNOWN WHEN
THE POLICY WAS WRITTEN.    WE CANNOT ASSENT TO THE PROPOSITION ADVANCED
BY THE COMMISSION THAT EVEN THOUGH THE PRIORITY STIPULATION WAS
INTENDED TO BE APPLICABLE TO ANY KIND OF AN INVOLUNTARY LIQUIDATION,
INCLUDING ONE SUCH AS THE PRESENT, THE COMMISSION CAN NEVERTHELESS
OVERRIDE IT.  SUCH PROVISIONS FOR PRIORITY IN A CORPORATE CHARTER
CONSTITUTE A CONTRACT AMONG THE STOCKHOLDERS, WHICH IS ENTITLED TO
CONSTITUTIONAL PROTECTION, BEDFORD V. EASTERN BUILDING & LOAN ASSN.,
181 U.S. 227; HOPKINS FEDERAL SAVINGS & LOAN ASSN. V. CLEARY, 296 U.S.
315; TREIGLE V. ACME HOMESTEAD ASSN., 297 U.S. 189, 194-6, IMPAIRMENT
OF WHICH IS NOT LIGHTLY TO BE ATTRIBUTED TO CONGRESS.  NO
CONSTITUTIONAL ISSUE IS RAISED HERE, BUT WE FIND NO PROVISION OF THE
STATUTE WHICH PURPORTS TO CONFER ON THE COMMISSION, IN THE EXERCISE OF
ITS POWER TO LIQUIDATE A CORPORATION, ANY AUTHORITY TO SET ASIDE A
LAWFUL STIPULATION IN WHICH THE STOCKHOLDERS HAVE JOINED FIXING THEIR
RELATIVE RIGHTS IN THE EVENT OF LIQUIDATION. 

ON THE ARGUMENT OF THIS CASE COUNSEL FOR THE RESPONDENT REFERRED TO
THE COMMISSION'S ACTION IN SETTING ASIDE THE CONTRACT AS AN EXERCISE OF
ITS POWER TO "REMOLD" THE CONTRACT.  WHETHER THIS CHARACTERIZATION OF
THE COMMISSION'S ACTION MAY BE THOUGHT TO RENDER IT MORE PALATABLE TO
THE PREFERRED STOCKHOLDERS WHOSE LAWFUL CONTRACT HAS BEEN SET ASIDE BY
THE COMMISSION, IT IS PLAIN THAT IN THE ABSENCE OF SOME CONTROLLING
DIRECTION OF THE STATUTE THERE ARE NO CIRCUMSTANCES HERE WHICH CALL FOR
THE EXERCISE OF ANY IMPLIED POWER OF THE COMMISSION OR COURT TO
READJUST OR RESTATE THE RIGHTS OF THE STOCKHOLDERS WITHOUT REGARD TO
THEIR CONTRACT.  THERE IS NO SUGGESTION THAT THE PRESENT STIPULATION IS
UNLAWFUL, OPPRESSIVE OR INEQUITABLE, OR SUBJECT TO ANY OTHER INFIRMITY;
OR THAT IT IS INCAPABLE OF BEING CARRIED OUT IN THE PRESENT LIQUIDATION
TO WHICH IT APPLIES.  HENCE THERE IS NO BASIS FOR THE EXERCISE OF
EQUITY POWERS TO ADJUST THE RIGHTS OF PARTIES TO A CONTRACT WHICH HAS
BEEN SET ASIDE; OR FOR THE COMMISSION'S ARGUMENT, WHICH THE COURT OF
APPEALS BELOW SEEMS TO HAVE SUSTAINED, 142 F.2D 411, 419, THAT THE
ACTION OF THE COMMISSION IS SUPPORTABLE AS AN EXERCISE OF THE JUDICIAL
POWER TO MAKE AN EQUITABLE DISPOSITION OF THE RIGHTS OF THE PARTIES TO
A FRUSTRATED CONTRACT.  CF. NEW YORK TRUST CO. V. SECURITIES & EXCHANGE
COMMISSION, 131 F.2D 274. 

SO FAR AS THE COMMISSION HAS AUTHORITY TO LIQUIDATE ANY CORPORATION,
LIQUIDATION IS ONLY A STEP IN THE SIMPLIFICATION OF A HOLDING COMPANY
SYSTEM OR THE ELIMINATION OF AN UNDESIRABLE HOLDING COMPANY, WHICH ARE
THE AVOWED PURPOSES OF THE ACT.  THE COMMISSION DOES NOT REVEAL HOW THE
DISTRIBUTION OF THE CORPORATE ASSETS, UPON WHICH THE STOCKHOLDERS HAVE
AGREED, WOULD HAMPER THE SIMPLIFICATION OR THE ELIMINATION OF THE
LIQUIDATED COMPANY; OR HOW THE DIFFERENT DISTRIBUTION ORDERED BY THE
COMMISSION WOULD FACILITATE THEM.  IT SEEMS WHOLLY IRRELEVANT TO THE
ACHIEVEMENT OF THESE, WHICH ARE THE AVOWED PURPOSES OF THE ACT, WHETHER
THE STOCKHOLDERS OF THE DISSOLVED CORPORATION SHARE IN ITS ASSETS IN
ONE PROPORTION OR ANOTHER.  NEITHER THE COMMISSION, THE PUBLIC, NOR THE
STOCKHOLDERS HAVE ANY GROUND FOR COMPLAINT SO LONG AS THE AGREED
PRIORITY RIGHTS TO THE DISTRIBUTED ASSETS REMAIN UNALTERED. 

THE COMMISSION HAS FOUND ITS AUTHORITY FOR SETTING ASIDE THE PRIORITY
STIPULATION IN THE REQUIREMENT OF SEC. 11(E) THAT THE COMMISSION MUST
FIND THAT ANY PLAN IT APPROVES FOR ELIMINATION OF A HOLDING COMPANY IS
"FAIR AND EQUITABLE."  AS WE HAVE ALREADY INDICATED, THE COMMISSION HAS
SAID THAT IT IS "FAIR AND EQUITABLE" TO DEPRIVE PREFERRED STOCKHOLDERS,
IN THE EVENT OF LIQUIDATION, OF THE RIGHTS FOR WHICH THEY HAVE
STIPULATED AND PAID IN ORDER TO COMPENSATE THE COMMON STOCKHOLDERS FOR
RIGHTS WHICH THEY ARE SAID TO HAVE LOST BECAUSE OF THE LIQUIDATION. 
BUT SUCH COMPENSATION OF THE COMMON STOCKHOLDERS AT THE EXPENSE OF THE
PREFERRED IS CONTRARY TO THE PRIORITY STIPULATION BY WHICH BOTH ARE
BOUND.  THE COMMON STOCKHOLDERS, LIKE THE PREFERRED, HAVE NO RIGHT NOT
TO HAVE THE COMPANY LIQUIDATED AND ARE ENTITLED TO NO COMPENSATION
MERELY BECAUSE IT IS LIQUIDATED.  THEIR RIGHTS AS STOCKHOLDERS CANNOT
SURVIVE LIQUIDATION AND DISSOLUTION OF THE COMPANY, AND IN THAT EVENT
AND BECAUSE OF IT AND BECAUSE OF THE STIPULATION NEITHER CAN ASSERT
RIGHTS WHICH THEY COULD ENJOY ONLY IF THE CORPORATION WERE TO CONTINUE
AS A GOING CONCERN. 

WE CAN FIND NO BASIS FOR SAYING THAT IT IS NOT FAIR AND EQUITABLE,
BOTH IN A TECHNICAL AS WELL AS A GENERAL AND NONTECHNICAL SENSE, TO
REQUIRE THE STOCKHOLDERS TO ABIDE BY THEIR AGREEMENT IN THE VERY
CIRCUMSTANCES TO WHICH IT WAS INTENDED TO APPLY, AND WHERE, AS WE HAVE
SAID, THERE IS NO CONTENTION THAT THE CONTRACT WHEN MADE WAS OR IS NOW
OPPRESSIVE, UNFAIR, INEQUITABLE OR ILLEGAL.  BUT BEYOND THIS WE THINK
IT IS QUITE CLEAR THAT THE REQUIREMENT OF SEC. 11(E) THAT THE PLAN BE
"FAIR AND EQUITABLE," INSTEAD OF FURNISHING AUTHORITY FOR THE
DEPRIVATION OF SHAREHOLDERS OF THEIR PRIORITY IN LIQUIDATION, IS A
PROHIBITION AGAINST IT. 

THE PHRASE "FAIR AND EQUITABLE" AS APPLIED TO ANY FORM OF CORPORATE
REORGANIZATION HAS LONG BEEN RECOGNIZED AS SIGNIFYING THE REQUIREMENT
OF THE RULE SANCTIONED BY THIS COURT IN NORTHERN PACIFIC R. CO. V.
BOYD, 228 U.S. 482, AND THE MANY CASES FOLLOWING IT.  THE RULE IS THAT
ANY ARRANGEMENT OR PLAN ENFORCED WITHOUT THE CONSENT OF THE PARTIES
AFFECTED BY IT, BY WHICH THE SUBORDINATE RIGHTS AND INTERESTS OF
STOCKHOLDERS ARE ATTEMPTED TO BE SECURED AT THE EXPENSE OF THE PRIOR
RIGHTS OF OTHER SECURITY HOLDERS, IS UNFAIR AND INEQUITABLE AND WILL
NOT BE JUDICIALLY SANCTIONED.  SEE CASE V. LOS ANGELES LUMBER CO., 308
U.S. 106, AND CASES CITED.  THIS RULE IS APPLICABLE WITH RESPECT TO THE
PRIORITIES OF DIFFERENT CLASSES OF STOCKHOLDERS AS WELL AS TO
PRIORITIES BETWEEN CREDITORS AND STOCKHOLDERS, AND FOR THE SAME
REASONS.  CASE V. LOS ANGELES LUMBER CO., SUPRA, 119, NOTE 14. 

IN THE LOS ANGELES CASE, SUPRA, WE HELD THAT THE WORDS "FAIR AND
EQUITABLE" HAD SO LONG BEEN RECOGNIZED AND APPLIED AS SIGNIFYING THIS
RULE OF PRIORITY AMONG SECURITY HOLDERS IN CORPORATE REORGANIZATIONS AS
TO HAVE BECOME WORDS OF ART, AND THAT THEIR ADOPTION BY SEC. 77B OF THE
BANKRUPTCY ACT, AS APPLICABLE TO REORGANIZATIONS UNDER THAT SECTION,
MUST BE TAKEN TO HAVE INCORPORATED THE RULE OF THE BOYD CASE IN THE
STATUTE, IN THE ABSENCE OF ANY CONTEXT REQUIRING A CONTRARY
CONSTRUCTION.  WE THINK NO OTHER CONSTRUCTION OF SEC. 11(E) OF THE
PRESENT ACT CAN BE SUSTAINED.  NEITHER THE CONTEXT OF THE STATUTE NOR
THE LEGISLATIVE HISTORY SUGGESTS ANY OTHER.  THE COMMISSION HINTS AT NO
REASON FOR NOT GIVING THESE TERMS OF ART, "FAIR AND EQUITABLE," OTHER
THAN THEIR LONG SETTLED AND HITHERTO ACCEPTED MEANING. 

THE COMMISSION JUSTIFIES ITS DEPARTURE FROM THE RULE HERE ONLY BY
RECURRENCE IN ITS BRIEF TO THE PROPOSITION THAT "THE ESSENCE OF THE
REORGANIZATION PROCESS IS THE REMOLDING OF CONTRACT RIGHTS AND THE
SUBSTITUTION THEREFOR OF EQUITABLE EQUIVALENTS."  TO THIS THE ANSWER IS
THAT THE COMMISSION IN THIS CASE IS LIQUIDATING AND DISSOLVING, NOT
REORGANIZING, UNITED, AND THAT IT IS WITHOUT AUTHORITY IN SUCH A CASE
MORE THAN IN A REORGANIZATION TO ALTER OR DISREGARD A CONTRACT FIXING
THE PRIORITIES OF STOCKHOLDERS, AND THAT IN DEPRIVING THE PREFERRED
STOCKHOLDERS OF THEIR PRIORITY RIGHTS THE COMMISSION HAS SUBSTITUTED NO
EQUIVALENT FOR THEM, EITHER LEGAL OR EQUITABLE.  IN FACT IT HAS
SUBSTITUTED NOTHING FOR THE PRIORITY RIGHTS WHICH ITS ORDER DESTROYS. 

THE GOLD CLAUSE CASES, NORMAN V. B. & O.R. CO., 294 U.S. 240, AFFORD
NO ANALOGY AND LEND NO SUPPORT TO WHAT IS NOW ADJUDGED.  THERE
CONGRESS, WITH THE AUTHORITY OF AN EXPRESS PROVISION OF THE
CONSTITUTION, EXPLICITLY ALTERED EXISTING CONTRACTS.  HERE CONGRESS HAS
COMMANDED THE COMMISSION TO RESPECT CONTRACT RIGHTS BY REQUIRING THAT
ITS ACTION CONFORM TO THE WELL DEFINED MEANING OF THE PHRASE "FAIR AND
EQUITABLE."  CONGRESS SEEMS TO HAVE RECOGNIZED THAT THE STIPULATED
PRIORITIES OF STOCKHOLDERS WERE NOT TO BE DISTURBED IN LIQUIDATIONS
ORDERED UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT.  THE REPORT OF
THE SENATE COMMITTEE (S. REP. NO. 621, 74TH CONG., 1ST SESS., P. 33)
RECOMMENDING THE ENACTMENT OF THE PRESENT STATUTE AND PROPONENTS OF THE
BILL (H.R. REP. 1318, 74TH CONG., 1ST SESS., PP. 49-50; 79 CONG. REC.
4607, 8432) REPEATEDLY CITED CONTINENTAL INSURANCE CO. V. UNITED
STATES, SUPRA, IN WHICH IT WAS HELD THAT THE DISTRIBUTION IN A
LIQUIDATION COMPELLED BY THE ENFORCEMENT OF THE SHERMAN AND HEPBURN
ACTS MUST PRESERVE THE STIPULATED PRIORITIES OF THE SEVERAL CLASSES OF
STOCKHOLDERS OF THE OFFENDING CORPORATION. 

THE INTIMATION THAT THE PRIORITY STIPULATION CAN BE DISREGARDED IN
THE PRESENT LIQUIDATION BECAUSE THE COMMISSION COULD HAVE EFFECTED THE
SIMPLIFICATION OF THE HOLDING COMPANY STRUCTURE BY MERGER,
CONSOLIDATION OR RECAPITALIZATION, IS MERELY TO SAY THAT SUCH PROCEDURE
WOULD NOT INVOLVE LIQUIDATION, VOLUNTARY OR INVOLUNTARY, OR, WHAT COMES
TO THE SAME THING, THAT THE PREFERRED STOCKHOLDERS COULD NOT CLAIM THE
PROTECTION OF THE PRIORITY STIPULATION IN SITUATIONS TO WHICH IT DOES
NOT AND WAS NOT INTENDED TO APPLY.  BY BUYING PREFERRED STOCK THE
PREFERRED STOCKHOLDERS PAID FOR THE PRIVILEGE OF MEMBERSHIP IN THE
CORPORATION AND FOR PARTICIPATION IN THE FRUITS OF THE CORPORATE
ENTERPRISE, TO CONTINUE, WITH FULL PRIORITY OF DIVIDENDS SO LONG AS THE
CORPORATION SHOULD CONTINUE AS A GOING CONCERN.  BUT IN THE EVENT OF
LIQUIDATION THEY STIPULATED AND PAID FOR THE SPECIFIED PRIORITY OVER
THE COMMON STOCKHOLDERS IN THE DISTRIBUTION OF THE NET CORPORATE
ASSETS.  THE PREFERRED STOCKHOLDERS HERE ASSERT ONLY THE RIGHTS TO
WHICH THAT STOCK IS ENTITLED ON LIQUIDATION BY THE TERMS OF THE
PRIORITY STIPULATION.  CALLING THE PREFERRED STOCKHOLDERS' RIGHT OF
PRIORITY A "WINDFALL" WILL NOT SERVE AS AN APOLOGY, EXPLANATION, OR
JUSTIFICATION FOR THE COMMISSION'S ACTION IN APPROPRIATING THE PRIORITY
OF THE PREFERRED IN ORDER TO GIVE A WINDFALL TO THE COMMON.  IT IS NO
ANSWER TO SAY THAT THEIR CLAIM ON LIQUIDATION MIGHT HAVE BEEN AVOIDED
BY NOT LIQUIDATING OR TO SAY, AS THE COMMISSION HAS ORDERED, THAT THEY
MUST ACCEPT ON LIQUIDATION LESS THAN THEIR STIPULATED PRIORITY ON
LIQUIDATION AND LESS THAN THE RIGHTS TO WHICH THEY WOULD HAVE BEEN
ENTITLED IF THE CORPORATION HAD CONTINUED AS A GOING CONCERN. 

THE JUDGMENT SHOULD BE REVERSED. 
..END :










PRUDENCE CORP. V. FERRIS, 323 U.S. 650 


NO. 137.  ARGUED DECEMBER 8, 11, 1944.  - DECIDED JANUARY 29, 1945.  -
292 N.Y. 210, 54 N.E.2D 367, AFFIRMED. 


1.  THE BANKRUPTCY COURT HAVING CLOSED A SEC. 77B PROCEEDING FOR THE
REORGANIZATION OF AN ISSUE OF MORTGAGE PARTICIPATION CERTIFICATES,
WITHOUT DETERMINING OR RETAINING JURISDICTION TO DETERMINE THE QUESTION
OF RELATIVE PRIORITY AS BETWEEN A GUARANTOR AND OTHER HOLDERS, AND
HAVING REMITTED THE PARTIES TO "A COURT OF COMPETENT JURISDICTION" FOR
THE DETERMINATION OF THAT QUESTION, THE STATE COURT AS SUCH A COURT
PROPERLY DETERMINED THE QUESTION IN ACCORDANCE WITH THE LAW OF THE
STATE.  PRUDENCE CORP. V. GEIST, 316 U.S. 89, DISTINGUISHED.  PP. 654
656. 

2.  NO APPEAL HAVING BEEN TAKEN FROM THE BANKRUPTCY COURT'S FAILURE
TO RETAIN JURISDICTION TO DETERMINE THE QUESTION OF RELATIVE PRIORITY,
THE ORDER CONFIRMING THE PLAN OF REORGANIZATION IS RES JUDICATA.  P.
654. 

PRUDENCE REALIZATION CORPORATION V. FERRIS ET AL., TRUSTEES, ET AL. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, POST, P. 686, TO REVIEW A DETERMINATION OF THE RELATIVE
RIGHTS OF THE PARTIES IN A DISTRIBUTION TO CREDITORS UNDER A PLAN OF
REORGANIZATION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT IN ONE OF THE COURTS OF THE STATE OF NEW YORK
TO ADJUDICATE CONFLICTING CLAIMS AGAINST PROPERTY HELD TO SATISFY A
MORTGAGE DEBT.  THE IMMEDIATE CONTROVERSY ARISES OUT OF THE
REORGANIZATION IN A UNITED STATES DISTRICT COURT OF A LARGE NEW YORK
GUARANTY COMPANY, ANOTHER PHASE OF WHICH WAS BEFORE US IN PRUDENCE
CORP. V. GEIST, 316 U.S. 89. 

PETITIONER'S PREDECESSOR, THE PRUDENCE COMPANY, INC., LOANED MONEY ON
REAL ESTATE AND ISSUED GUARANTEED MORTGAGE PARTICIPATION CERTIFICATES. 
(FOR AN EXPOSITION OF THE BUSINESS DETAILS SEE IN RE THE WESTOVER,
INC., 82 F.2D 177.)  THE ENTERPRISE WAS ON A VAST SCALE, RUNNING INTO
THE HUNDREDS OF MILLIONS.  OUR IMMEDIATE CONCERN IS WITH CERTIFICATES
OF PARTICIPATION ISSUED BY PRUDENCE IN A BOND AND MORTGAGE MADE BY
BURNSIDE IMPROVEMENT COMPANY.  PRUDENCE GUARANTEED THE CERTIFICATE
HOLDERS THE PAYMENT OF INTEREST AND PRINCIPAL WHEN DUE OR WITHIN
EIGHTEEN MONTHS THEREAFTER.  BURNSIDE, THE MORTGAGOR, DEFAULTED IN THE
PAYMENT OF AN INSTALMENT OF PRINCIPAL DUE JANUARY, 1932.  AFTER THIS
DEFAULT, PRUDENCE ITSELF PURCHASED, EITHER DIRECTLY FROM THE HOLDERS OR
THROUGH A CONCEALED BROKERAGE ACCOUNT AND USUALLY AT A DISCOUNT,
CERTIFICATES AGGREGATING $431,212.86, APPROXIMATELY 42% OF THE AMOUNT
OF OUTSTANDING CERTIFICATES.  IN JUNE, 1932, THE MORTGAGED PREMISES
SECURING THE BURNSIDE CERTIFICATES WERE CONVEYED TO AMALGAMATED
PROPERTIES, INC., A WHOLLYOWNED SUBSIDIARY OF PRUDENCE. 

IN 1935 PRUDENCE WENT INTO REORGANIZATION UNDER SEC. 77B OF THE
BANKRUPTCY ACT, 48 STAT. 912, AND WAS ADJUDICATED INSOLVENT IN 1938. 
AS PART OF THE PRUDENCE PROCEEDINGS, AMALGAMATED, IN 1936, FILED A
VOLUNTARY PETITION FOR REORGANIZATION, BUT THE TWO WERE LATER SEVERED. 
THEREAFTER, UNDER A REORGANIZATION PLAN CONFIRMED BY THE DISTRICT
COURT, ALL THE ASSETS OF PRUDENCE, INCLUDING THE BURNSIDE CERTIFICATES
REACQUIRED BY IT, WERE TRANSFERRED TO PETITIONER, PRUDENCE REALIZATION
CORPORATION. 

IN THE AMALGAMATED PROCEEDING PRUDENCE CLAIMED TO PARTICIPATE IN THE
MORTGAGE ON A PARITY WITH OTHER BURNSIDE CERTIFICATE HOLDERS.  THE
CLAIM WAS OPPOSED ON THE GROUND THAT PRUDENCE, HAVING DEFAULTED ON ITS
GUARANTY, WAS NOT ENTITLED TO PARITY WITH OTHER HOLDERS OF
CERTIFICATES.  THE BANKRUPTCY COURT NEITHER DECIDED THIS QUESTION OF
PARITY NOR RESERVED IT FOR DECISION.  IT "TERMINATED AND FINALLY
CLOSED" THE AMALGAMATED PROCEEDING BY CONFIRMING A PLAN WHICH LEFT THE
CLAIM OF PARTICIPATION BY PRUDENCE IN THE BURNSIDE BOND AND MORTGAGE
FOR ADJUDICATION BY A "COURT OF COMPETENT JURISDICTION."  THERE WERE
PROVISIONS, WITH WHICH WE ARE NOT HERE CONCERNED, FOR HOLDING IN
ESCROW, PENDING SUCH AN ADJUDICATION, THE SHARE CLAIMED BY PETITIONER. 

THEREAFTER, RESPONDENTS, THE TRUSTEES UNDER THE BURNSIDE PLAN, AND
VARIOUS CERTIFICATE HOLDERS BROUGHT THIS ACTION IN THE NEW YORK SUPREME
COURT TO DETERMINE PETITIONER'S RIGHT TO PARTICIPATE AS HOLDER OF
CERTIFICATES ACQUIRED BY THE INSOLVENT GUARANTOR.  PETITIONER'S CLAIM
FOR PARITY OF TREATMENT WAS DENIED, BUT THIS DENIAL WAS REVERSED BY THE
APPELLATE DIVISION, 266 APP. DIV. 543, 42 N.Y.S.2D 528, WHICH IN TURN
WAS REVERSED BY THE COURT OF APPEALS.  IT HELD THAT STATE LAW GOVERNED
AND THAT NEW YORK SUBORDINATED THE GUARANTOR'S CERTIFICATES.  292 N.Y.
210, 54 N.E.2D 367.  WE BROUGHT THE CASE HERE BECAUSE CONFLICT WITH
PRUDENCE CORP. V. GEIST, SUPRA, WAS STRONGLY PRESSED.  PRECISE
APPRECIATION IS THEREFORE REQUIRED OF THE RECORD NOW BEFORE US COMPARED
WITH THAT ON WHICH THE GEIST DECISION WAS BASED. 

IN THE GEIST CASE, THE CLAIM OF PARITY BY THE SAME PETITIONER AROSE
IN CONNECTION WITH DIFFERENT PROPERTY AND ANOTHER CERTIFICATE ISSUE,
THE ZO-GALE ISSUE.  IN THAT CASE ALSO THE QUESTION OF PARITY WAS NOT
SETTLED IN THE ORDER OF CONFIRMATION.  BUT, WHILE IT WAS RESERVED FOR A
COURT OF COMPETENT JURISDICTION, THE CONFIRMATION ORDER CLEARLY
INDICATED THAT THE BANKRUPTCY COURT WAS RESERVING JURISDICTION IN
ITSELF.  "THE COURT RETAINS JURISDICTION TO HEAR AND DETERMINE ALL
QUESTIONS ARISING UNDER PARAGRAPH 7 OF THIS ORDER" - SO RAN THE TERMS
OF THE RESERVATION OF THE PARITY QUESTION IN THE GEIST CASE - AND THE
TRUSTEES "ARE HEREBY GRANTED LEAVE TO APPLY AT ANY TIME AT THE FOOT OF
THIS ORDER FOR SUCH ADJUDICATION."  THE TRUSTEE, GEIST, ACCORDINGLY
APPLIED TO THE BANKRUPTCY COURT FOR AN ORDER ADJUDICATING THE RIGHTS OF
THE CERTIFICATE HOLDERS AND THAT COURT, "IN THE MATTER OF A PLAN OF
REORGANIZATION OF AMALGAMATED PROPERTIES, INC., DEBTOR, IN RESPECT OF
THE ZO-GALE FIRST MORTGAGE PARTICIPATION CERTIFICATES" ISSUED AN ORDER
TO SHOW CAUSE.  WHEN THE AMALGAMATED PROCEEDING WITH RESPECT TO THE ZO
GALE PROPERTY WAS SUBSEQUENTLY CLOSED, THE ORDER PROVIDED THAT "THESE
PROCEEDINGS SHALL HEREAFTER BE TREATED AS DISMISSED FOR ALL PURPOSES,
EXCEPT THE DETERMINATION OF THE QUESTIONS RAISED IN THE PENDING MOTION
BY A. GEIST  ...  FOR DETERMINATION OF THE RELATIVE PRIORITIES  ..." 
THE BANKRUPTCY COURT HAD PATENTLY RETAINED FOR DECISION THE QUESTION
AFFECTING THE DISTRIBUTION OF THE BANKRUPT'S PROPERTY, ALTHOUGH IN ALL
OTHER RESPECTS IT HAD WOUND UP THE PROCEEDINGS.  "THE BANKRUPTCY ACT
PRESCRIBES ITS OWN CRITERIA FOR DISTRIBUTION TO CREDITORS  ...  THE
COURT OF BANKRUPTCY IS A COURT OF EQUITY TO WHICH THE JUDICIAL
ADMINISTRATION OF THE BANKRUPT'S ESTATE IS COMMITTED,  ...  AND IT IS
FOR THAT COURT - NOT WITHOUT APPROPRIATE REGARD FOR RIGHTS ACQUIRED
UNDER RULES OF STATE LAW - TO DEFINE AND APPLY FEDERAL LAW IN
DETERMINING THE EXTENT TO WHICH THE INEQUITABLE CONDUCT OF A CLAIMANT
IN ACQUIRING OR ASSERTING HIS CLAIM IN BANKRUPTCY REQUIRES ITS
SUBORDINATION TO OTHER CLAIMS WHICH, IN OTHER RESPECTS, ARE OF THE SAME
CLASS."  PRUDENCE CORP. V. GEIST, SUPRA AT 95.  ACCORDINGLY WE HELD
THAT THE DISTRICT COURT, SITTING AS A BANKRUPTCY COURT, WAS UNDER DUTY
TO APPLY FEDERAL AND NOT STATE LAW, AND THAT, IN THE CIRCUMSTANCES OF
THE GEIST CASE, THERE WAS "NO AGREEMENT AND NO EQUITABLE BASIS FOR
DEPRIVING THE PRUDENCE COMPANY AND ITS CREDITORS OF THE BENEFITS OF THE
USUAL BANKRUPTCY RULE OF EQUALITY."  PRUDENCE CORP. V. GEIST, SUPRA AT
97. 

THIS CASE IS NOT THE GEIST CASE.  HERE THE BANKRUPTCY COURT NEITHER
CONSIDERED THE QUESTION OF PARITY NOR RETAINED JURISDICTION TO CONSIDER
IT.  THE ORDER OF CONFIRMATION CONTAINED NO PROVISION FOR RETENTION OF
JURISDICTION TO DECIDE THE PARITY QUESTION AS DID THE GEIST ORDER.  NOR
DID THE CLOSING OF THE REORGANIZATION RESERVE JURISDICTION, AS DID THE
GEIST CLOSING ORDER.  THE PROVISIONS FOR DISPOSITION OF THE IMPOUNDED
FUNDS IN CASE SUBORDINATION BE DETERMINED ARE MUCH MORE ELABORATE THAN
THE GEIST CASE DISCLOSES.  IN SHORT, WHILE THE PROVISIONS FOR
ADJUDICATION OF THE PARITY QUESTION IN THE GEIST CASE CLEARLY
CONTEMPLATED DETERMINATION OF IT AS PART OF THE REORGANIZATION
PROCEEDINGS BY THE BANKRUPTCY COURT ITSELF, IN THE PRESENT CASE THE
BANKRUPTCY COURT WASHED ITS HANDS OF THE PROBLEM AND LEFT THE PARTIES
TO LITIGATE THE QUESTION IN ANOTHER FORUM.  FOR IT IS NOT QUESTIONED
THAT THE STATE COURT WAS A "COURT OF COMPETENT JURISDICTION" FOR
ADJUDICATING THE CLAIM OF PARITY. 

TO BE SURE, THE SECURITIES AND EXCHANGE COMMISSION, AS AMICUS CURIAE,
SUGGESTS THAT THE BANKRUPTCY COURT WAS IN ERROR IN FAILING TO RETAIN
JURISDICTION FOR DETERMINING THIS ASPECT OF DISTRIBUTION.  BUT THE
DIFFERENT TREATMENT OF THE SAME PROBLEM BY THE SAME COURT IN THE GEIST
CASE AND IN THIS, TOGETHER WITH ACQUIESCENCE BY THE PETITIONER IN THE
CLOSING ORDER WITHOUT SEEKING A REVIEW OF THE NONRETENTION OF
JURISDICTION, GIVE GROUND FOR BELIEVING THAT THE ARRANGEMENT WAS THE
PRODUCT OF BARGAINING BETWEEN THE PARTIES.  IN ANY EVENT, SINCE NO
APPEAL WAS TAKEN, IT IS NOT NOW OPEN TO FIND ERROR BY THE BANKRUPTCY
COURT IN FAILING TO RETAIN JURISDICTION.  THE ORDER CONFIRMING THE PLAN
OF REORGANIZATION IS RES JUDICATA.  CHICOT COUNTY DIST. V. BAXTER STATE
BANK, 308 U.S. 371, 378. 

BUT IT IS URGED THAT ALTHOUGH THE BANKRUPTCY COURT SPECIFICALLY
REFUSED TO CONSIDER THE RIGHTS OF THE PARTIES AND REMITTED THEM,
PLAINLY ENOUGH, TO THE STATE COURTS FOR THEIR DETERMINATION, THE RIGHTS
WERE TO BE DETERMINED IN THE STATE COURTS BY FEDERAL LAW BECAUSE THE
PARTIES HAD PASSED THROUGH FEDERAL REORGANIZATION PROCEEDINGS.  IN
SPITE OF AN ORDER OF FINAL TERMINATION, THE AUTHORITY OF THE BANKRUPTCY
COURT, IT IS ARGUED, SOMEHOW CONTINUES TO BE EFFECTIVE.  DESPITE THE
FACT THAT NEITHER THE BANKRUPTCY COURT NOR THE REORGANIZATION STATUTE
PROFESSES TO ALTER RIGHTS UNLESS DISCLOSED IN THE PLAN OR IN AN ORDER,
WE ARE ASKED TO RECOGNIZE SOME ENVELOPING CLOUD OF AMENABILITY TO THE
LAW GOVERNING BANKRUPTCY PROCEEDINGS. 

WE FIND NO WARRANT IN THE STATUTE FOR SO HOLDING.  SECTION 77B, UNDER
WHICH THIS REORGANIZATION WAS ACCOMPLISHED, PROVIDES IN SUBSECTION (G)
THAT UPON CONFIRMATION "THE PROVISIONS OF THE PLAN AND OF THE ORDER OF
CONFIRMATION SHALL BE BINDING."  THE RIGHTS ARE THUS FIXED AS THE PLAN
AND THE ORDER PROVIDE AND ARE NOT OTHERWISE AFFECTED.  SUBSECTION (H)
PROVIDES THAT UPON FINAL CONFIRMATION THE DEBTOR OR ITS SUCCESSOR
CORPORATION "SHALL PUT INTO EFFECT AND CARRY OUT THE PLAN AND THE
ORDERS OF THE JUDGE RELATIVE THERETO  ...  AND THE PROPERTY DEALT WITH
BY THE PLAN  ... SHALL BE FREE AND CLEAR OF ALL CLAIMS OF THE DEBTOR,
ITS STOCKHOLDERS AND CREDITORS, EXCEPT SUCH AS MAY CONSISTENTLY WITH
THE PROVISIONS OF THE PLAN BE RESERVED IN THE ORDER CONFIRMING THE PLAN
..."  THE FINAL DECREE, DISCHARGING THE TRUSTEES AND CLOSING THE CASE,
"SHALL DISCHARGE THE DEBTOR FROM ITS DEBTS AND LIABILITIES, AND SHALL
TERMINATE AND END ALL RIGHTS AND INTERESTS OF ITS STOCKHOLDERS, EXCEPT
AS PROVIDED IN THE PLAN OR AS MAY BE RESERVED AS AFORESAID."  HERE THE
COURT ENTERED APPROPRIATE ORDERS TO SECURE THE EXECUTION OF THE PLAN
AND THE TERMINATION OF THE PROCEEDINGS.  BUT THE RELATIVE PRIORITY OF
PARTICIPATION WAS PASSED UPON NEITHER IN THE PLAN NOR BY THE COURT. 
INSTEAD, IT WAS SPECIFICALLY RESERVED.  AND IT WAS RESERVED FOR
DETERMINATION, AS THE PARTIES SAW FIT TO HAVE IT DETERMINED, BY THE NEW
YORK COURTS WITHOUT RESTRICTION BY THE FEDERAL ADJUDICATION.  THE
PARTIES WERE OUT OF THE FEDERAL BANKRUPTCY COURT WITH THEIR ORIGINAL
RIGHTS MODIFIED BY THE TERMS OF THE REORGANIZATION PLAN.  WHEN THEY
CAME BEFORE A NEW YORK COURT SEEKING A DETERMINATION OF THEIR PRESENT
RIGHTS, THAT COURT WAS OBLIGED TO ASCERTAIN WHETHER ANY RIGHTS HAD BEEN
FIXED BY THE REORGANIZATION PLAN AND, IF SO, TO ENFORCE THEM.  RIGHTS
NOT AFFECTED BY THE FEDERAL PROCEEDINGS THE NEW YORK COURT WAS FREE TO
DECIDE ACCORDING TO NEW YORK LAW.  THE BANKRUPTCY COURT HAD REFUSED TO
FIX THE RIGHTS OF THE PARTIES AS TO THE PARTICIPATION OF PRUDENCE-OWNED
BURNSIDE PARTICIPATIONS, AND EXPRESSLY LEFT THEM TO BE FIXED BY THE NEW
YORK COURT AS A "COURT OF COMPETENT JURISDICTION."  ACCORDINGLY, IT WAS
FOR THE NEW YORK COURT OF APPEALS TO DEFINE THE GOVERNING NEW YORK
LAW. 

AND SINCE, IN THE CIRCUMSTANCES OF THIS CASE, NEW YORK LAW GOVERNS,
WE ARE NOT CALLED UPON TO INDICATE, IT HARDLY NEEDS TO BE ADDED,
WHETHER THE RESULT WOULD BE DIFFERENT WERE THE FEDERAL RULE FOR
DISTRIBUTION TO CREDITORS APPLICABLE.  AFFIRMED. 

MR. CHIEF JUSTICE STONE. 

I CONCUR IN THE RESULT. 

THE RELATIVE PRIORITY OF PRUDENCE'S PARTICIPATION IN THE BANKRUPT'S
ESTATE IN A 77B REORGANIZATION IS A FEDERAL RIGHT GOVERNED BY FEDERAL
NOT STATE LAW.  PRUDENCE CORP. V. GEIST, 316 U.S. 89, 95.  AS THE
REORGANIZATION PLAN DID NOT PURPORT TO ALTER THAT RIGHT, BUT MERELY
PROVIDED THAT IT SHOULD BE DETERMINED BY A COURT OF "COMPETENT
JURISDICTION," I CANNOT CONCLUDE THAT THE ADOPTION OF THE PLAN
CONTEMPLATED OR EFFECTED THE ALTERATION OF THE FEDERAL RIGHT BY
REQUIRING IT TO BE REDEFINED IN TERMS OF THE LAW OF NEW YORK, OR OF ANY
OTHER JURISDICTION, WHERE THE PARTIES MIGHT HAPPEN TO SEEK ITS
ADJUDICATION. 

THE FACT THAT A FEDERAL RIGHT IS TO BE ASCERTAINED IN A STATE RATHER
THAN IN A FEDERAL COURT DOES NOT MAKE IT ANY LESS THE DUTY OF THE COURT
TO APPLY FEDERAL LAW.  CHESAPEAKE & OHIO R. CO. V. MARTIN, 283 U.S.
209, 212-213; AWOTIN V. ATLAS EXCHANGE BANK, 295 U.S. 209; BRADY V.
SOUTHERN R. CO., 320 U.S. 476, 479, AND CASES CITED; ILLINOIS STEEL CO.
V. BALTIMORE & OHIO R. CO., 320 U.S. 508, 511, AND CASES CITED; STEELE
V. LOUISVILLE & NASHVILLE R. CO., 323 U.S. 192, 204.  AND A MERE GRANT
BY THE FEDERAL COURT OF PERMISSION TO THE PARTIES TO LITIGATE A FEDERAL
QUESTION IN A STATE COURT, IS NOT A DIRECTION THAT THE QUESTION BE
DETERMINED BY STATE LAW, MORE THAN IS A GENERAL STATUTORY AUTHORIZATION
FOR A SUIT IN THE STATE COURT ON A FEDERAL RIGHT. 

THE STATE COURT HAS HELD THAT PETITIONER, THE HOLDER OF MORTGAGE
PARTICIPATION CERTIFICATES, IS NOT ENTITLED TO SHARE IN THE MORTGAGE
UNTIL THE HOLDERS OF OTHER CERTIFICATES, WHICH PETITIONER HAS
GUARANTEED, ARE PAID IN FULL.  ITS JUDGMENT SHOULD BE AFFIRMED, NOT
BECAUSE THE PLAN CALLED FOR DETERMINATION OF PETITIONER'S RIGHTS IN THE
BANKRUPT'S ESTATE BY STATE RATHER THAN FEDERAL LAW, BUT BECAUSE IN THE
CIRCUMSTANCES OF THIS CASE THE APPLICABLE FEDERAL LAW IS THE SAME AS
THAT WHICH THE STATE COURT HAS APPLIED.  PETITIONER DID NOT, AS IN THE
GEIST CASE, ACQUIRE ITS INTEREST IN THE MORTGAGE AS AN ORIGINAL
INVESTMENT BEFORE IT SOLD AND GUARANTEED CERTIFICATED SHARES IN THE
MORTGAGE, NOR DID IT ACQUIRE ITS OWN CERTIFICATES INDEPENDENTLY OF THE
PERFORMANCE OF ITS OBLIGATION AS A GUARANTOR OF THE CERTIFICATES. 
PETITIONER IS HERE IN THE POSITION OF A SUBROGEE OF A CLAIM WHOSE
PAYMENT IT HAS GUARANTEED.  FOR IT ACQUIRED ITS CLAIM TO PARTICIPATE IN
THE MORTGAGE THROUGH PERFORMANCE OF ITS GUARANTY, BY PURCHASE, AFTER
DEFAULT, OF THE CERTIFICATES OF PARTICIPATION WHICH IT HAD GUARANTEED. 

AS WE RECOGNIZED IN THE GEIST CASE, AND WERE AT PAINS TO POINT OUT,
316 U.S., AT P. 96, SUCH A CASE IS WITHIN THE RULE OF UNITED STATES V.
NATIONAL SURETY CO., 254 U.S. 73, 76; JENKINS V. NATIONAL SURETY CO.,
277 U.S. 258; AMERICAN SURETY CO. V. WESTINGHOUSE ELECTRIC CO., 296
U.S. 133, "THAT A SOLVENT GUARANTOR OR SURETY OF AN INSOLVENT'S
OBLIGATION WILL NOT BE PERMITTED, EITHER BY TAKING INDEMNITY FROM HIS
PRINCIPAL OR BY VIRTUE OF HIS RIGHT OF SUBROGATION, TO COMPETE WITH
OTHER CREDITORS PAYMENT OF WHOSE CLAIMS HE HAS UNDERTAKEN TO ASSURE,
UNTIL THEY ARE PAID IN FULL." 

MR. JUSTICE RUTLEDGE CONCURS IN THIS OPINION. 
..END :









ROSENMAN V. UNITED STATES, 323 U.S. 658 


NO. 207.  ARGUED DECEMBER 15, 1944.  - DECIDED JANUARY 29, 1945.  - 101
CT. CLS. 437, 53 F.SUPP.  722, REVERSED. 


OF THE REVENUE ACT OF 1932, PROVIDES THAT A CLAIM FOR REFUND OF A
FEDERAL ESTATE TAX "ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY
ASSESSED OR COLLECTED MUST BE PRESENTED TO THE COMMISSIONER WITHIN
THREE YEARS NEXT AFTER THE PAYMENT OF SUCH TAX."  HELD: 

1.  THE PERIOD OF LIMITATIONS DID NOT BEGIN TO RUN FROM THE TIME OF A
REMITTANCE WHICH IN EFFECT WAS A DEPOSIT AND WHICH THE COLLECTOR PLACED
IN A SUSPENSE ACCOUNT TO THE CREDIT OF THE ESTATE.  PP. 661-662. 

2.  AS TO A BALANCE OF THE REMITTANCE WHICH WAS APPLIED UPON A
DEFICIENCY SUBSEQUENTLY ASSESSED BY THE COMMISSIONER, A CLAIM FOR
REFUND FILED WITHIN THREE YEARS OF SUCH APPLICATION OF THE BALANCE,
THOUGH MORE THAN THREE YEARS FROM THE DATE OF THE ORIGINAL REMITTANCE,
WAS TIMELY.  P. 661. 

ROSENMAN ET AL., EXECUTORS, V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 691, TO REVIEW A JUDGMENT DENYING IN PART A
REFUND OF FEDERAL ESTATE TAXES. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION UPON A CLAIM FOR REFUND OF A FEDERAL ESTATE TAX,
AND THE SPECIFIC QUESTION BEFORE US IS WHETHER THE CLAIM WAS ASSERTED
TOO LATE.  THE MATTER IS GOVERNED BY SEC. 319(B) OF THE REVENUE ACT OF
1926, 44 STAT. 9, 84, AS AMENDED BY SEC. 810(A) OF THE REVENUE ACT OF
1932, 47 STAT. 169, 282, 26 U.S.C. SEC. 910, READING AS FOLLOWS:  "ALL
CLAIMS FOR THE REFUNDING OF THE TAX IMPOSED BY THIS TITLE ALLEGED TO
HAVE BEEN ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED MUST BE
PRESENTED TO THE COMMISSIONER WITHIN THREE YEARS NEXT AFTER THE PAYMENT
OF SUCH TAX.  THE AMOUNT OF THE REFUND SHALL NOT EXCEED THE PORTION OF
THE TAX PAID DURING THE THREE YEARS IMMEDIATELY PRECEDING THE FILING OF
THE CLAIM, OR IF NO CLAIM WAS FILED, THEN DURING THE THREE YEARS
IMMEDIATELY PRECEDING THE ALLOWANCE OF THE REFUND." 

PETITIONERS ARE EXECUTORS OF THE WILL OF LOUIS ROSENMAN, WHO DIED ON
DECEMBER 25, 1933.  UNDER APPROPRIATE STATUTORY AUTHORITY, THE
COMMISSIONER OF INTERNAL REVENUE EXTENDED THE TIME FOR FILING THE
ESTATE TAX RETURN TO FEBRUARY 25, 1935.  BUT THERE WAS NO EXTENSION OF
THE TIME FOR PAYMENT OF THE TAX WHICH BECAME DUE ONE YEAR AFTER THE
DECEDENT'S DEATH, ON DECEMBER 25, 1934.  THE DAY BEFORE, PETITIONERS
DELIVERED TO THE COLLECTOR OF INTERNAL REVENUE A CHECK FOR $120,000,
THE PURPOSE OF WHICH WAS THUS DEFINED IN A LETTER OF TRANSMITTAL:  "WE
ARE DELIVERING TO YOU HEREWITH, BY MESSENGER, AN ESTATE CHECK PAYABLE
TO YOUR ORDER, FOR $120,000, AS A PAYMENT ON ACCOUNT OF THE FEDERAL
ESTATE TAX  ....  THIS PAYMENT IS MADE UNDER PROTEST AND DURESS, AND
SOLELY FOR THE PURPOSE OF AVOIDING PENALTIES AND INTEREST, SINCE IT IS
CONTENDED BY THE EXECUTORS THAT NOT ALL OF THIS SUM IS LEGALLY OR
LAWFULLY DUE."  THIS AMOUNT WAS PLACED BY THE COLLECTOR IN A SUSPENSE
ACCOUNT TO THE CREDIT OF THE ESTATE.  IN THE BOOKS OF THE COLLECTOR THE
SUSPENSE ACCOUNT CONCERNS MONEYS RECEIVED IN CONNECTION WITH FEDERAL
ESTATE TAXES AND OTHER MISCELLANEOUS TAXES IF, AS HERE, NO ASSESSMENT
FOR TAXES IS OUTSTANDING AT THE TIME.  ON FEBRUARY 25, 1935,
PETITIONERS FILED THEIR ESTATE TAX RETURN ACCORDING TO WHICH THERE WAS
DUE FROM THE ESTATE $80,224.24.  ON MARCH 28, 1935, THE COLLECTOR
ADVISED PETITIONERS THAT $80,224.24 OF THE $120,000 TO THEIR CREDIT IN
THE SUSPENSE ACCOUNT HAD BEEN APPLIED IN SATISFACTION OF THE AMOUNT OF
THE TAX ASSESSED UNDER THEIR RETURN.  ON THE BASIS OF THIS NOTICE,
PETITIONERS, ON MARCH 26, 1938, FILED A CLAIM FOR $39,775.76, THE
BALANCE BETWEEN THE $120,000 PAID BY THEM UNDER PROTEST AND THE
ASSESSED TAX OF $80,224.24. 

UPON COMPLETION, AFTER NEARLY THREE YEARS, OF THE AUDIT OF THE
RETURN, THE COMMISSIONER DETERMINED THAT THE TOTAL NET TAX DUE WAS
$128,759.08.  NO APPEAL TO THE BOARD OF TAX APPEALS HAVING BEEN TAKEN,
A DEFICIENCY OF $48,534.84 WAS ASSESSED.  THE COLLECTOR THEREUPON
APPLIED THE BALANCE OF $39,775.76 STANDING TO THE CREDIT OF PETITIONERS
IN THE SUSPENSE ACCOUNT IN PARTIAL SATISFACTION OF THIS DEFICIENCY, AND
ON APRIL 22, 1938, PETITIONERS PAID TO THE COLLECTOR THE ADDITIONAL
AMOUNT OF $10,497.34, WHICH COVERED THE REMAINDER OF THE DEFICIENCY
PLUS INTEREST.  THE COMMISSIONER THEN REJECTED THE PETITIONERS' CLAIM
FOR REFUND FILED IN MARCH OF THAT YEAR.  ON MAY 20, 1940, PETITIONERS
FILED WITH THE COLLECTOR A CLAIM, BASED ON ADDITIONAL DEDUCTIONS, FOR
REFUND OF $24,717.12.  THE CLAIM WAS REJECTED ON THE GROUND, SO FAR AS
NOW RELEVANT, THAT THE TAX CLAIMED TO HAVE BEEN ILLEGALLY EXACTED HAD
BEEN PAID MORE THAN THREE YEARS PRIOR TO THE FILING OF THE CLAIM,
EXCEPT AS TO THE AMOUNT OF $10,497.34 PAID BY PETITIONERS IN 1938. 
PETITIONERS BROUGHT THIS SUIT IN THE COURT OF CLAIMS WHICH HELD THAT
RECOVERY FOR THE AMOUNT HERE IN DISPUTE WAS BARRED BY STATUTE, 53
F.SUPP.  722.  TO RESOLVE AN ASSERTED CONFLICT OF DECISIONS IN THE
LOWER COURTS WE BROUGHT THE CASE HERE. 

CLAIMS FOR TAX REFUNDS MUST CONFORM STRICTLY TO THE REQUIREMENTS OF
CONGRESS.  A CLAIM FOR REFUND OF AN ESTATE TAX "ALLEGED TO HAVE BEEN
ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED MUST BE PRESENTED TO THE
COMMISSIONER WITHIN THREE YEARS NEXT AFTER THE PAYMENT OF SUCH TAX." 
ON THE FACE OF IT, THIS REQUIREMENT IS COUCHED IN ORDINARY ENGLISH,
AND, SINCE NO EXTRANEOUS RELEVANT AIDS TO CONSTRUCTION HAVE BEEN CALLED
TO OUR ATTENTION, CONGRESS HAS EVIDENTLY MEANT WHAT THESE WORDS
ORDINARILY CONVEY.  THE CLAIM IS FOR REFUND OF A TAX "ALLEGED TO HAVE
BEEN ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED," AND THE CLAIM
MUST HAVE BEEN FILED "AFTER THE PAYMENT OF SUCH TAX," THAT IS, WITHIN
THREE YEARS AFTER PAYMENT OF A TAX WHICH ACCORDING TO THE CLAIM WAS
ERRONEOUSLY OR ILLEGALLY COLLECTED.  THE CRUX OF THE MATTER IS THE
ALLEGED ILLEGAL ASSESSMENT OR COLLECTION, AND "PAYMENT OF SUCH TAX"
PLAINLY PRESUPPOSES CHALLENGED ACTION BY THE TAXING OFFICIALS. 

THE ACTION HERE COMPLAINED OF WAS THE ASSESSMENT OF A DEFICIENCY BY
THE COMMISSIONER IN APRIL 1938.  BEFORE THAT TIME THERE WERE NO TAXES
"ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED" FOR THE COLLECTION OF
WHICH PETITIONERS COULD HAVE FILED A CLAIM FOR REFUND.  THE AMOUNT THEN
DEMANDED AS A DEFICIENCY BY THE COMMISSIONER WAS, SO THE PETITIONERS
CLAIMED, ERRONEOUSLY ASSESSED.  IT IS THIS ERRONEOUS ASSESSMENT THAT
GAVE RISE TO A CLAIM FOR REFUND.  NOT UNTIL THEN WAS THERE SUCH A CLAIM
AS COULD START THE TIME RUNNING FOR PRESENTING THE CLAIM.  IN ANY
RESPONSIBLE SENSE PAYMENT WAS THEN MADE BY THE APPLICATION OF THE
BALANCE CREDITED TO THE PETITIONERS IN THE SUSPENSE ACCOUNT AND BY THE
ADDITIONAL PAYMENT OF $10,497.34 ON APRIL 22, 1938.  BOTH THESE EVENTS
OCCURRED WITHIN THREE YEARS OF MAY 20, 1940, WHEN THE PETITIONERS'
PRESENT CLAIM WAS FILED. 

BUT THE GOVERNMENT CONTENDS "PAYMENT OF SUCH TAX" WAS MADE ON
DECEMBER 24, 1934, WHEN PETITIONERS TRANSFERRED TO THE COLLECTOR A
CHECK FOR $120,000.  THIS STOPPED THE RUNNING OF PENALTIES AND
INTEREST, SAYS THE GOVERNMENT, AND THEREFORE IS TO BE TREATED AS A
PAYMENT BY THE PARTIES.  BUT ON DECEMBER 24, 1934, THE TAXPAYER DID NOT
DISCHARGE WHAT HE DEEMED A LIABILITY NOR PAY ONE THAT WAS ASSERTED. 
THERE WAS MERELY AN INTERIM ARRANGEMENT TO COVER WHATEVER CONTINGENCIES
THE FUTURE MIGHT DEFINE.  THE TAX OBLIGATION DID NOT BECOME DEFINED
UNTIL APRIL 1938.  AND THIS IS THE PRACTICAL CONSTRUCTION WHICH THE
GOVERNMENT HAS PLACED UPON SUCH ARRANGEMENTS.  THE GOVERNMENT DOES NOT
CONSIDER SUCH ADVANCES OF ESTIMATED TAXES AS TAX PAYMENTS.  THEY ARE,
AS IT WERE, PAYMENTS IN ESCROW.  THEY ARE SET ASIDE, AS WE HAVE NOTED,
IN SPECIAL SUSPENSE ACCOUNTS ESTABLISHED FOR DEPOSITING MONEY RECEIVED
WHEN NO ASSESSMENT IS THEN OUTSTANDING AGAINST THE TAXPAYER.  THE
RECEIPT BY THE GOVERNMENT OF MONEYS UNDER SUCH AN ARRANGEMENT CARRIES
NO MORE SIGNIFICANCE THAN WOULD THE GIVING OF A SURETY BOND.  MONEY IN
THESE ACCOUNTS IS HELD NOT AS TAXES DULY COLLECTED ARE HELD BUT AS A
DEPOSIT MADE IN THE NATURE OF A CASH BOND FOR THE PAYMENT OF TAXES
THEREAFTER FOUND TO BE DUE.  SEE RULING OF THE COMPTROLLER GENERAL, A
48307, APRIL 14, 1933, 1(1935) PRENTICE-HALL TAX SERVICE, SPECIAL
REPORTS, PARAGRAPH 45.  ACCORDINGLY, WHERE TAXPAYERS HAVE SUED FOR
INTEREST ON THE "OVERPAYMENT" OF MONEYS RECEIVED UNDER SIMILAR
CONDITIONS, THE GOVERNMENT HAS INSISTED THAT THE ARRANGEMENT WAS MERELY
A "DEPOSIT" AND NOT A "PAYMENT" INTEREST ON WHICH IS DUE FROM THE
GOVERNMENT IF THERE IS AN EXCESS BEYOND THE AMOUNT OF THE TAX
EVENTUALLY ASSESSED.  SEE BUSSER V. UNITED STATES, 130 F.2D 537, 538;
ATLANTIC OIL PRODUCING CO. V. UNITED STATES, 35 F.SUPP.  766; MOSES V.
UNITED STATES, 28 F.SUPP.  817; CHICAGO TITLE & TRUST CO. V. UNITED
STATES, 45 F.SUPP.  323; ESTATE OF ROGERS V. COMMISSIONER, 1942
PRENTICE-HALL B.T.A. MEMORANDUM DECISIONS, PARAGRAPH 42,275.  IF IT IS
NOT PAYMENT IN ORDER TO RELIEVE THE GOVERNMENT FROM PAYING INTEREST ON
A SUBSEQUENTLY DETERMINED EXCESS, IT CANNOT BE PAYMENT TO BAR SUIT BY
THE TAXPAYER FOR ITS ILLEGAL RETENTION.  IT WILL NOT DO TO TREAT THE
SAME TRANSACTION AS PAYMENT AND NOT AS PAYMENT, WHICHEVER FAVORS THE
GOVERNMENT.  SEE UNITED STATES V. WURTS, 303 U.S. 414. 

EXACTION OF INTEREST FROM THE GOVERNMENT REQUIRES STATUTORY
AUTHORITY, AND IT MERELY CARRIES OUT THE TRUE NATURE OF AN ARRANGEMENT
SUCH AS THIS TO TREAT IT AS AN ESTIMATED DEPOSIT AND NOT AS A PAYMENT
WHICH, IF IN EXCESS OF WHAT SHOULD PROPERLY HAVE BEEN EXACTED, ENTITLED
THE TAXPAYER TO INTEREST AS THE RETURN ON THE USE THAT THE GOVERNMENT
HAS HAD OF MONEYS THAT SHOULD NOT HAVE BEEN EXACTED.  (WE NEED NOT HERE
CONSIDER THE EFFECT OF THE CURRENT TAX PAYMENT ACT OF 1943, SEC. 4(D),
57 STAT. 126, 140.)  ON THE OTHER HAND, BY ALLOWING SUCH A DEPOSIT
ARRANGEMENT, THE GOVERNMENT SAFEGUARDS COLLECTION OF THE ASSESSMENT OF
WHATEVER AMOUNT TAX OFFICIALS MAY EVENTUALLY FIND OWING FROM A
TAXPAYER, WHILE THE TAXPAYER IN TURN IS SAVED THE DANGER OF PENALTIES
ON AN ASSESSMENT MADE, AS IN THIS CASE, YEARS AFTER A FAIRLY ESTIMATED
RETURN HAS BEEN FILED.  THE CONSTRUCTION WHICH IN OUR VIEW THE STATUTE
COMPELS SAFEGUARDS THE INTERESTS OF THE GOVERNMENT, INTERPRETS A
BUSINESS TRANSACTION ACCORDING TO ITS TENOR, AND AVOIDS GRATUITOUS
RESENTMENT IN THE RELATIONS BETWEEN TREASURY AND TAXPAYER.  REVERSED. 
..END :












CHOATE V. COMMISSIONER, 324 U.S. 1 


NO. 93.  ARGUED JANUARY 2, 1945.  - DECIDED JANUARY 29, 1945.  - 141
F.2D 641, REVERSED. 


1.  A TAXPAYER WHO TRANSFERRED AN OIL LEASE AND EQUIPMENT FOR CASH AND
A ROYALTY INTEREST, HELD ENTITLED, UPON A RETURN OF INCOME TAX, TO AN
ALLOWANCE FOR THE UNRECOVERED COST OF THE EQUIPMENT.  P. 3. 

2.  UNDER THE REVENUE ACT OF 1938, DEPLETION IS NOT APPLICABLE TO
EQUIPMENT USED IN THE OPERATION OF AN OIL LEASE.  P. 3. 

3.  THE TAX COURT'S DETERMINATION THAT THE TRANSACTION IN QUESTION
INVOLVED AN ABSOLUTE SALE OF THE EQUIPMENT WAS CONCLUSIVE ON REVIEW. 
DOBSON V. COMMISSIONER, 320 U.S. 489; WILMINGTON CO. V. HELVERING, 316
U.S. 164.  P. 3. 

CHOATE V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 323 U.S. 692, TO REVIEW A JUDGMENT WHICH, UPON AN APPEAL
BY THE COMMISSIONER, REVERSED A DECISION OF THE TAX COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1936 CHOATE AND HOGAN, A PARTNERSHIP OF WHICH THE PETITIONER WAS A
MEMBER, ACQUIRED AN OIL AND GAS LEASE.  THEY DRILLED SIX PRODUCING
WELLS ON THE LEASED LAND AND OPERATED THE PROPERTY UNTIL AUGUST 1938. 
AT THAT TIME THEY SOLD TO SYLVA OIL CO. FOR A CASH CONSIDERATION OF
$110,000 ALL THEIR RIGHT, TITLE AND INTEREST IN THE LEASE "TOGETHER
WITH ALL WELLS AND THE EQUIPMENT THEREOF, INCLUDING PUMPS, CASING,
PIPING, TANKS, LEASE HOUSE, AND ALL OTHER PERSONAL PROPERTY ON OR USED
IN CONNECTION" WITH THE PREMISES.  BUT THEY EXPRESSLY RESERVED TO
THEMSELVES "1/8 OF THE 8/8THS OF ALL OIL AND GAS AND CASINGHEAD GAS
WHICH MAY BE PRODUCED AND SAVED" FROM THE LAND.  THEREAFTER SYLVA OIL
CO. DRILLED ADDITIONAL WELLS AND OPERATED THE LEASE.  CHOATE AND HOGAN
IN THEIR PARTNERSHIP RETURN FOR 1938 REPORTED THE TRANSACTION AS A
SALE.  RESPONDENT IN HIS DEFICIENCY NOTICE RULED THAT THE TRANSACTION
CONSTITUTED A SUBLEASE.  THE TAX COURT TOOK THE SAME VIEW, HOLDING THAT
THE PARTNERS MUST LOOK TO DEPLETION FOR THE RETURN OF THEIR CAPITAL. 
IT HELD THAT THE PRINCIPLE OF RECOVERY BY DEPLETION WAS APPLICABLE
WHERE A ROYALTY INTEREST WAS RETAINED AND THAT A CASH BONUS WAS TO BE
REGARDED AS IN THE NATURE OF AN ADVANCE ROYALTY.  IT HELD, HOWEVER,
THAT THERE HAD BEEN AN ABSOLUTE SALE OF THE EQUIPMENT, THAT ITS COST
WAS NOT RECOVERABLE BY DEPLETION, AND THAT THE PARTNERS WERE ENTITLED
TO AN ALLOWANCE FOR THE UNRECOVERED COST OF THE EQUIPMENT TRANSFERRED. 
THE COMMISSIONER CHALLENGED THE LATTER RULING - IN THE CIRCUIT COURT OF
APPEALS FOR THE TENTH CIRCUIT AS RESPECTS CHOATE, IN THE CIRCUIT COURT
OF APPEALS FOR THE FIFTH CIRCUIT AS RESPECTS HOGAN.  THE COMMISSIONER
WON IN THE TENTH CIRCUIT (141 F.2D 641) AND LOST IN THE FIFTH.  HOGAN
V. COMMISSIONER, 141 F.2D 92.  IT WAS TO RESOLVE THAT CONFLICT THAT WE
GRANTED THE PETITION IN THE PRESENT CASE LIMITED TO THAT SINGLE
QUESTION. 

THE COMMISSIONER MAKES AN ELABORATE ARGUMENT BASED ON THE ASSUMPTION
THAT THERE WAS NO SALE OF THE EQUIPMENT.  THE ASSUMPTION IS THAT AFTER
THE PARTNERSHIP TRANSFERRED ITS INTEREST IN THE LEASE ITS INVESTMENT
WAS NO LONGER IN THE LEASEHOLD AND EQUIPMENT AS SUCH BUT WAS AN
ECONOMIC INTEREST IN AN OIL PRODUCING ENTERPRISE - AN INTEREST WHICH IS
DEPLETABLE SINCE IT IS MEASURED BY THE PRODUCTION OF OIL.  BUT THERE
ARE TWO DIFFICULTIES WITH THAT ARGUMENT.  IN THE FIRST PLACE, WE FIND
NOTHING IN THE REVENUE ACT OF 1938, 52 STAT. 447, OR IN THE TREASURY
REGULATIONS WHICH PROVIDES FOR DEPLETION OF EQUIPMENT USED IN THE
OPERATION OF OIL AND GAS WELLS.  A DEDUCTION IS ALLOWED FOR
DEPRECIATION BY SEC. 23(1) WHICH PERMITS A "REASONABLE ALLOWANCE FOR
THE EXHAUSTION, WEAR AND TEAR OF PROPERTY USED IN THE TRADE OR
BUSINESS."  AND SEE TREASURY REGULATIONS 101, ART. 23(M)-18.  SEC.
23(M) PROVIDES THAT IN THE CASE OF "MINES, OIL AND GAS WELLS, OTHER
NATURAL DEPOSITS, AND TIMBER, A REASONABLE ALLOWANCE FOR DEPLETION AND
FOR DEPRECIATION OF IMPROVEMENTS, ACCORDING TO THE PECULIAR CONDITIONS
IN EACH CASE" MAY BE TAKEN AS A DEDUCTION.  AND SEE TREASURY
REGULATIONS 101, ART. 23(M)-10.  DEPLETION IS APPLICABLE TO WASTING
ASSETS - TO THE EXHAUSTION OF NATURAL RESOURCES, NOT OF PROPERTY USED
IN A BUSINESS.  SEE 4 MERTENS, LAW OF FEDERAL INCOME TAXATION (1942)
SEC. 24.02.  THAT DISTINCTION BETWEEN DEPLETION AND DEPRECIATION RUNS
THROUGH THE BASIS PROVISIONS OF THE ACT.  SEE SEC. 111(A), SEC. 113(A)
AND (B), SEC. 114(A) AND (B).  AND THE HISTORY OF THE DEPLETION
PROVISIONS INDEED MAKES CLEAR THAT ONLY INTANGIBLE DRILLING AND
DEVELOPMENT COSTS, NOT COSTS REPRESENTED BY PHYSICAL PROPERTY, ARE
RETURNABLE BY WAY OF DEPLETION.  SEE UNITED STATES V. DAKOTA-MONTANA
OIL CO., 288 U.S. 459; 4 MERTENS, OP. CIT., SEC. 24.48; TREASURY
REGULATIONS 101, ART. 23(M)-16(A).  IN THE SECOND PLACE, THE TAX COURT
FOUND THAT THE PARTIES INTENDED A CASH SALE OF THE EQUIPMENT.  THAT
QUESTION IS ARGUED HERE AS IF IT WERE OPEN FOR REDETERMINATION BY US.
IT IS NOT.  IT IS THE KIND OF ISSUE RESERVED FOR THE TAX COURT UNDER
DOBSON V. COMMISSIONER, 320 U.S. 489, AND WILMINGTON TRUST CO. V.
HELVERING, 316 U.S. 164, 167-168.  ONCE A SALE OF THE EQUIPMENT IS
CONCEDED, IT IS NOT DENIED THAT PETITIONER IS ENTITLED TO AN ALLOWANCE
FOR THE UNRECOVERED COST OF THE EQUIPMENT TRANSFERRED.  SEC. 111(A),
SEC. 113(A) AND (B).  NO QUESTION IS PRESENTED CONCERNING THE
ALLOCATION OF A PORTION OF THE PURCHASE PRICE TO THE EQUIPMENT. 
REVERSED. 
..END :
























HERGET V. CENTRAL BANK CO., 324 U.S. 4 


NO. 322.  ARGUED JANUARY 9, 10, 1945.  - DECIDED JANUARY 29, 1945.  -
141 F.2D 150, AFFIRMED. 


OF ADJUDICATION IN BANKRUPTCY AN ACTION BROUGHT BY THE TRUSTEE IN
BANKRUPTCY TO SET ASIDE AND RECOVER A PREFERENTIAL TRANSFER; AND A
STATE STATUTE OF LIMITATIONS CAN NOT OPERATE TO EXTEND THE PERIOD.  P.
8. 

HERGET, TRUSTEE IN BANKRUPTCY, V. CENTRAL NATIONAL BANK & TRUST CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 323 U.S. 691, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT IN A SUIT BY A TRUSTEE IN BANKRUPTCY TO SET
ASIDE AND RECOVER AN ALLEGED PREFERENTIAL TRANSFER. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE NARROW ISSUE OF WHETHER SEC. 11E OF THE
BANKRUPTCY ACT, 11 U.S.C. SEC. 29E, BARS AT THE END OF TWO YEARS FROM
THE DATE OF ADJUDICATION IN BANKRUPTCY AN ACTION BROUGHT BY THE TRUSTEE
IN BANKRUPTCY TO SET ASIDE AND RECOVER A PREFERENTIAL TRANSFER. 

ON APRIL 11, 1938, N.L. ROGERS & COMPANY, INC., FILED A VOLUNTARY
PETITION IN BANKRUPTCY AND WAS DULY ADJUDGED A BANKRUPT ON THE SAME
DAY.  ON MARCH 3, 1943, THE PETITIONER TRUSTEE FILED A COMPLAINT UNDER
SEC. 60 OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 96, AGAINST THE
RESPONDENT BANK TO SET ASIDE AND RECOVER PAYMENTS TOTALLING OVER
$300,000 ALLEGED TO HAVE BEEN GIVEN ILLEGALLY BY THE BANKRUPT TO THE
RESPONDENT WITHIN FOUR MONTHS PRIOR TO THE FILING OF THE BANKRUPTCY
PETITION.  THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND
THAT THE SUIT HAD BEEN INSTITUTED MORE THAN TWO YEARS SUBSEQUENT TO THE
DATE OF ADJUDICATION IN BANKRUPTCY AND HENCE WAS BARRED BY SEC. 11E. 
IT THUS OVERRULED THE TRUSTEE'S CONTENTION THAT ILLINOIS LAW ALLOWED
HIM FIVE YEARS IN WHICH TO BRING THIS ACTION AND THAT THIS FIVE-YEAR
LIMITATION WAS CONTROLLING SINCE IT FELL WITHIN THE PROVISION OF SEC.
11E ALLOWING SUITS "WITHIN SUCH FURTHER TIME AS THE FEDERAL OR STATE
LAW MAY PERMIT."  53 F.SUPP.  265.  THE COURT BELOW AFFIRMED THIS
JUDGMENT.  141 F.2D 150.  IN OUR VIEW, SUCH A RESULT IS PLAINLY RIGHT. 

TWO-YEAR LIMITATIONS ON SUITS BY AND AGAINST TRUSTEES HAVE LONG BEEN
INTEGRAL PARTS OF FEDERAL BANKRUPTCY STATUTES.  SECTION 8 OF THE
BANKRUPTCY ACT OF 1841, 5 STAT. 440, 446, 447, APPLIED A TWO-YEAR
LIMITATION ON ANY "SUIT AT LAW OR IN EQUITY" BY OR AGAINST ANY ASSIGNEE
OF THE BANKRUPT.  COURTS HELD THAT THIS RELATED ONLY TO SUITS INVOLVING
CLAIMS HELD BY THE BANKRUPT BEFORE ASSIGNMENT, RATHER THAN TO SUITS ON
CLAIMS ARISING AFTER THE BANKRUPTCY PROCEEDINGS BEGAN,  FN1 BUT ITS
APPLICABILITY AS TO RIGHTS ACCRUING TO THE ASSIGNEE ON THE DATE OF THE
ASSIGNMENT BY VIRTUE OF THE BANKRUPTCY ACT APPARENTLY WAS NOT RAISED OR
DETERMINED. 

REENACTED IN SUBSTANTIALLY THE SAME FORM IN REVISED STATUTES SEC. 5057,
PLACED A SIMILAR LIMITATION ON ANY "SUIT AT LAW OR IN EQUITY  ...  BY
OR AGAINST SUCH ASSIGNEE  ...  TOUCHING THE PROPERTY AND RIGHTS OF
PROPERTY" OF THE BANKRUPT.  HERE AGAIN THE LIMITATION WAS HELD TO APPLY
ONLY TO SUITS GROWING OUT OF DISPUTES AND TRANSACTIONS PRIOR TO
ASSIGNMENT.  FN2  DUSHANE V. BEALL, 161 U.S. 513.  BUT IN BAILEY V.
GLOVER, 21 WALL.  342, 346, THIS COURT STATED THAT THIS LIMITATION
"APPLIES TO ALL JUDICIAL CONTESTS BETWEEN THE ASSIGNEE AND OTHER
PERSONS TOUCHING THE PROPERTY OR RIGHTS OF PROPERTY OF THE BANKRUPT
TRANSFERABLE TO OR VESTED IN THE ASSIGNEE."  SEE ALSO GIFFORD V. HELMS,
98 U.S. 248, 252; JENKINS V. INTERNATIONAL BANK, 106 U.S. 571, 575. 
THE INFERENCE SEEMS CLEAR FROM THIS THAT SUITS TO SET ASIDE
PREFERENTIAL TRANSFERS MADE PRIOR TO THE ASSIGNMENT WOULD HAVE BEEN
HELD TO FALL WITHIN THE REACH OF THE TWO-YEAR LIMITATION. 

PROVIDED THAT "SUITS SHALL NOT BE BROUGHT BY OR AGAINST A TRUSTEE OF A
BANKRUPT ESTATE SUBSEQUENT TO TWO YEARS AFTER THE ESTATE HAS BEEN
CLOSED."  STATE AND LOWER FEDERAL COURTS EXPLICITLY AND UNIFORMLY HELD
THAT THIS TWO-YEAR LIMITATION CONTROLLED THE TRUSTEE'S RIGHT TO SET
ASIDE AND RECOVER PREFERENTIAL TRANSFERS UNDER SEC. 60 OF THE ACT.  FN3
BUT COURTS DIFFERED AS TO WHETHER SEC. 11D OR STATE STATUTES OF
LIMITATION APPLIED TO CAUSES OF ACTION INHERITED BY THE TRUSTEE FROM
THE BANKRUPT OR THE BANKRUPT'S CREDITORS.  FN4 

IT WAS THIS CONFLICT UNDER SEC. 11D OF THE 1898 ACT THAT WAS
PRIMARILY RESPONSIBLE FOR THE FRAMING OF THE NEW SEC. 11E IN 1938. 
THIS LATTER PROVISION, WHICH IS CONTROLLING IN THIS CASE, SETTLES THE
PROBLEM BY STATING IN PART THAT "A RECEIVER OR TRUSTEE MAY, WITHIN TWO
YEARS SUBSEQUENT TO THE DATE OF ADJUDICATION OR WITHIN SUCH FURTHER
PERIOD OF TIME AS THE FEDERAL OR STATE LAW MAY PERMIT, INSTITUTE
PROCEEDINGS IN BEHALF OF THE ESTATE UPON ANY CLAIM AGAINST WHICH THE
PERIOD OF LIMITATION FIXED BY FEDERAL OR STATE LAW HAD NOT EXPIRED AT
THE TIME OF THE FILING OF THE PETITION IN BANKRUPTCY." 

IN LIGHT OF THE JUDICIAL CONSTRUCTION AND APPLICATION OF ANALOGOUS
PROVISIONS IN EARLIER BANKRUPTCY ACTS, IT IS SIGNIFICANT THAT CONGRESS
IN SEC. 11E FAILED TO ENLARGE THE TIME FOR BRINGING SUITS ARISING UNDER
THE BANKRUPTCY ACT BY MAKING STATE STATUTES OF LIMITATION OF LONGER
DURATION APPLICABLE TO SUCH FEDERAL CAUSES OF ACTION.  NONE OF THE
PRIOR PROVISIONS HAD BEEN CONSTRUED SO AS TO APPLY STATE STATUTES OF
LIMITATIONS TO ACTIONS BY TRUSTEES BASED ON CLAIMS ARISING UNDER THE
BANKRUPTCY STATUTES.  AND THE COURTS HAD FRANKLY AND UNMISTAKABLY
IMPOSED THE TWO-YEAR LIMITATION OF SEC. 11D OF THE 1898 ACT, WHICH IS
THE IMMEDIATE PREDECESSOR OF SEC. 11E, TO SUITS BY TRUSTEES TO SET
ASIDE AND RECOVER PREFERENTIAL TRANSFERS.  THE LEGISLATIVE BACKGROUND
AND HISTORY, AS WELL AS THE LANGUAGE OF SEC. 11E, ARE BARREN OF ANY
BASIS FOR CONCLUDING THAT CONGRESS INTENDED TO MAKE SUITS OF THIS
NATURE SUBJECT TO LONGER LIMITATIONS IMPOSED BY STATE LAWS.  FN5
CONGRESS COULD HAVE EXPRESSLY RESTRICTED THE FIELD WITHIN WHICH THE TWO
YEAR LIMITATION WAS TO BE OPERATIVE HAD IT SO WISHED.  ITS FAILURE TO
DO SO CANNOT BE IGNORED. 

THE ACTUAL LANGUAGE USED IN SEC. 11E IS CLEARLY APPROPRIATE TO AN
ACTION UNDER SEC. 60.  SECTION 11E IS NOT LIMITED BY ITS WORDS TO
ACTIONS INHERITED BY THE TRUSTEE; NOR DOES IT DISCRIMINATE AGAINST
ACTIONS BY THE TRUSTEE ACCRUING TO HIM UNDER THE ACT.  IT PROVIDES
SIMPLY THAT THE TRUSTEE MUST BRING ACTION ON ANY CLAIM IN BEHALF OF THE
ESTATE WITHIN TWO YEARS SUBSEQUENT TO THE DATE OF ADJUDICATION OR
WITHIN SUCH FURTHER TIME AS THE FEDERAL OR STATE LAW PERMITS, PROVIDED
THAT SUCH LAW DID NOT BAR THE ACTION ON THE DATE WHEN THE PETITION WAS
FILED. 

HERE THE ONLY APPLICABLE LAW IS SEC. 60 OF THE BANKRUPTCY ACT, WHICH
GENERATES THE CAUSE OF ACTION AND WHICH CONTAINS NO TIME LIMITATIONS AS
TO ACTIONS BROUGHT PURSUANT THERETO.  AND SINCE THE TRUSTEE'S RIGHT TO
SET ASIDE AND RECOVER PREFERENTIAL TRANSFERS RELATES TO TRANSACTIONS
OCCURRING PRIOR TO THE FILING OF THE PETITION AND SINCE THIS RIGHT DID
NOT ACCRUE BEFORE THE DATE ON WHICH THE PETITION WAS FILED, SUCH AN
ACTION OBVIOUSLY CANNOT BE EXCLUDED FROM THE LIMITATION ON THE GROUND
THAT IT WAS BARRED BY FEDERAL OR STATE LAW AT THE TIME THE PETITION WAS
FILED.  HENCE THE TRUSTEE WAS BOUND TO "INSTITUTE PROCEEDINGS IN BEHALF
OF THE ESTATE" TO SET ASIDE AND RECOVER ANY PREFERENTIAL TRANSFERS
"WITHIN TWO YEARS SUBSEQUENT TO THE DATE OF ADJUDICATION."  MORE THAN
TWO YEARS HAVING ELAPSED BETWEEN THE DATE OF ADJUDICATION AND THE
COMMENCEMENT OF THE SUIT IN THIS INSTANCE, THE COURTS BELOW PROPERLY
HELD THAT THE ACTION WAS BARRED UNDER SEC. 11E. 

INASMUCH AS THE FEDERAL BANKRUPTCY ACT HAS CREATED THE LIABILITY AND
HAS ALSO FIXED THE LIMITATION OF TIME FOR COMMENCING ACTIONS TO ENFORCE
IT, WE HAVE NO OCCASION TO CONSIDER THE TRUSTEE'S ARGUMENTS CONCERNING
THE APPLICABILITY AND CONSTRUCTION OF THE ILLINOIS STATUTES OF
LIMITATION.  CF. CAMPBELL V. HAVERHILL, 155 U.S. 610; MCCLAINE V.
RANKIN, 197 U.S. 154; RAWLINGS V. RAY, 312 U.S. 96; DAVIES WAREHOUSE
CO. V. BOWLES, 321 U.S. 144, 155, 156. 

THE JUDGMENT OF THE COURT BELOW IS AFFIRMED. 

FN1  SEE IN RE CONANT, 5 BLATCH.  54, FED. CAS. NO. 3086; STEVENS V.
HAUSER, 39 N.Y. 302.  CF. BANKS V. OGDEN, 2 WALL.  57, 70. 

FN2  SEE BOWEN V. DELAWARE, L. & W.R. CO., 153 N.Y. 476, 47 N.E.
907.  CF. PHELAN V. O'BRIEN, 13 F. 656. 

FN3  DAVIS V. WILLEY, 273 F. 397; MEIKLE V. DRAIN, 69 F.2D 290;
ARNOLD GROCERY CO. V. SHACKELFORD, 140 GA. 585, 79 S.E. 470. 

FN4  AMONG THOSE CASES HOLDING THAT SEC. 11D APPLIED ARE ISAACS V.
NEECE, 75 F.2D 566, ENGEBRETSON V. WEST, 133 NEB. 846, 277 N.W. 433,
AND CALLAGHAN V. BAILEY, 293 N.Y. 396, 57 N.E.2D 729.  CASES HOLDING
THAT THE STATE STATUTES OF LIMITATION APPLIED INCLUDE DAVIS V. WILLEY,
273 F. 397, AND SILVERMAN V. CHRISTIAN, 123 N.J. EQ. 506, 198 A. 832. 
SEE ALSO CHARLESWORTH V. HIPSH, INC., 84 F.2D 834; NAIRN V. MCCARTHY,
120 F.2D 910. 

FN5  H. REP. NO. 1409(75TH CONG., 1ST SESS.) P. 20, STATED THAT "A
NEW PROVISION IN SUBDIVISION E PERMITS RECEIVERS AND TRUSTEES WITHIN 2
YEARS AFTER THE ADJUDICATION TO INSTITUTE SUITS ON CLAIMS AGAINST WHICH
THE PERIOD OF LIMITATION FIXED BY FEDERAL OR STATE LAW HAD NOT EXPIRED
AT THE TIME OF THE BANKRUPTCY OR WITHIN SUCH FURTHER TIME AS THE
FEDERAL OR STATE LAW MAY PERMIT." 

S. REP. NO. 1916(75TH CONG., 3D SESS.) P. 13, STATED:  "THE
PROVISIONS OF THE EXISTING LAW IN REGARD TO SUITS BY OR AGAINST
TRUSTEES HAVE BEEN REVISED AND MODIFIED, AND RECEIVERS ARE INCLUDED. 
THE PERIOD OF LIMITATIONS IN RESPECT TO SUCH SUITS HAS BEEN RESTRICTED
IN THE BILL TO 2 YEARS AFTER THE DATE OF ADJUDICATION INSTEAD OF 2
YEARS AFTER THE DATE OF THE CLOSING OF THE ESTATE." 

SEE ALSO JOINT HEARINGS BEFORE THE SUBCOMMITTEES OF THE COMMITTEES ON
THE JUDICIARY (72D CONG., 1ST SESS.) ON S. 3866, PART 4, PP. 932-933; 6
JOURNAL OF NAT. ASSOC. OF REFEREES IN BANKRUPTCY 65; 1 COLLIER ON
BANKRUPTCY (14TH ED.)  1186. 
..END :





REGAL KNITWEAR CO. V. BOARD, 324 U.S. 9 


NO. 86.  ARGUED DECEMBER 8, 1944.  - DECIDED JANUARY 29, 1945.  - 140
F.2D 746, AFFIRMED. 


1.  A CEASE AND DESIST ORDER OF THE NATIONAL LABOR RELATIONS BOARD AND
AN ORDER OF THE CIRCUIT COURT OF APPEALS FOR ITS ENFORCEMENT MAY
VALIDLY PROVIDE THAT THE ORDER SHALL APPLY TO THE EMPLOYER'S
"SUCCESSORS AND ASSIGNS."  P. 16. 

2.  AN ORDER OF THE CIRCUIT COURT OF APPEALS FOR THE ENFORCEMENT OF A
CEASE AND DESIST ORDER OF THE BOARD, THOUGH APPLYING IN TERMS TO
"SUCCESSORS AND ASSIGNS," WOULD HAVE A SCOPE NO BROADER THAN THAT
PRESCRIBED BY RULE 65 OF THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT
COURTS - "EVERY ORDER GRANTING AN INJUNCTION AND EVERY RESTRAINING
ORDER  ...  IS BINDING ONLY UPON THE PARTIES TO THE ACTION, THEIR
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND ATTORNEYS, AND UPON THOSE
PERSONS IN ACTIVE CONCERT OR PARTICIPATION WITH THEM WHO RECEIVE ACTUAL
NOTICE OF THE ORDER BY PERSONAL SERVICE OR OTHERWISE."  P. 14. 

3.  WHETHER ONE BRINGS HIMSELF IN CONTEMPT OF AN ENFORCEMENT ORDER AS
A "SUCCESSOR" OR "ASSIGN" DEPENDS ON AN APPRAISAL OF HIS RELATIONS AND
BEHAVIOR, NOT UPON MERE CONSTRUCTION OF THE TERMS OF THE ORDER.  P.
15. 

REGAL KNITWEAR CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 323 U.S. 692, TO REVIEW A DECREE GRANTING ENFORCEMENT OF
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD, AFTER APPROPRIATE PROCEEDINGS,
ISSUED A CEASE AND DESIST ORDER AGAINST THE PETITIONER, 49 N.L.R.B.
560, AND THEREAFTER OBTAINED FROM THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT AN ORDER FOR ITS ENFORCEMENT.  140 F.2D 746.  WE GRANTED
CERTIORARI, LIMITED TO A SINGLE QUESTION ON WHICH THERE WAS A CONFLICT
IN PRACTICE BETWEEN DIFFERENT CIRCUITS.  323 U.S. 692.  THE BOARD HAS
FOLLOWED THE FORMULA WHICH ORDERS NOT ONLY A PARTICULAR RESPONDENT, BUT
ALSO "ITS OFFICERS, AGENTS, SUCCESSORS AND ASSIGNS" TO CEASE AND
DESIST.  THE QUESTION IS WHETHER ENFORCEMENT WILL BE GRANTED WITHOUT
DELETING "SUCCESSORS AND ASSIGNS" FROM THOSE ENJOINED.  THE CIRCUIT
COURTS OF APPEALS FOR THE FIRST, SECOND, THIRD, FOURTH, AND EIGHTH
CIRCUITS, AND THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA HAVE
UPHELD THE AUTHORITY OF THE BOARD TO INCLUDE SUCH A PROVISION.  FN1  IN
SOME OF THESE CASES CHANGE OF OWNERSHIP WAS SHOWN TO BE PROBABLE AND IN
OTHER CASES THERE WAS NO SUCH PROOF.  THE SECOND CIRCUIT, IN REFUSING
TO DELETE THE PROVISION, SAID:  "IN ALLOWING THESE WORDS TO STAND WE
WISH TO MAKE IT CLEAR, HOWEVER, THAT WE DO NOT HOLD THAT A 'SUCCESSOR'
OR AN 'ASSIGN' WILL BE IN CONTEMPT OF OUR ORDER IF IT SHOULD (EVEN
AFTER NOTICE OF THE ORDER, BUT WITHOUT PARTICIPATING WITH THE
RESPONDENT IN ANY DISOBEDIENCE BY IT) DO EXACTLY THOSE THINGS WHICH THE
ORDER FORBIDS.  IN OTHER WORDS, WE DO NOT HOLD THAT THOSE WORDS IMPOSE
ANY LIABILITY WHICH WOULD NOT EXIST WITHOUT THEM."  LABOR BOARD V.
BLACKSTONE MFG. CO., 123 F.2D 633, 635; SEE ALSO BETHLEHEM STEEL CO. V.
LABOR BOARD, 120 F.2D 641, 650-51(APP.  D.C.).  THE CIRCUIT COURT OF
APPEALS FOR THE SEVENTH CIRCUIT, ON THE OTHER HAND, CONSISTENTLY
ELIMINATES THE PROVISION AS TO SUCCESSORS AND ASSIGNS FROM THE ORDER,
FN2  BUT RECOGNIZES THAT SUCCESSORS OR ASSIGNS UNDER SOME CIRCUMSTANCES
ARE BOUND BY THE BOARD'S ORDER, EVEN WITHOUT THE WORDS.  FN3 

WHEN ONE COURT OF APPEALS STRIKES OUT THE PROVISION BUT SAYS ITS
ABSENCE MAY IN SOME CIRCUMSTANCES HAVE THE SAME EFFECT AS IF IT WERE
THERE, AND ANOTHER COURT OF APPEALS APPROVES THE PROVISION BUT SAYS ITS
PRESENCE MAY HAVE NO MORE EFFECT THAN IF IT WERE OUT, THERE IS MORE
THAN A FAINT SUGGESTION THAT THE CONFLICT IS OVER SEMANTICS RATHER THAN
OVER PRACTICAL REALITIES. 

THE FORMULA THAT INCLUDES SUCCESSORS AND ASSIGNS, AMONG OTHERS, IS
ONE PROBABLY BORROWED FROM THE JARGON OF CONVEYANCING.  DOUBTLESS THESE
WORDS OFTEN ARE USED, NOT OUT OF CONSIDERATION OF THEIR
APPROPRIATENESS, BUT BECAUSE OF THEIR FAMILIARITY.  COURTS OF EQUITY
SOMETIMES HAVE USED THIS FORMULA IN THEIR DECREES.  FN4  BEFORE THE
ENACTMENT OF THE LABOR RELATIONS ACT THE FEDERAL TRADE COMMISSION
ISSUED ORDERS CONTAINING THESE FAMILIAR PROVISIONS.  FN5  THE
SECURITIES AND EXCHANGE COMMISSION HAS DONE THE SAME.  FN6  THE
BITUMINOUS COAL DIVISION OF THE DEPARTMENT OF THE INTERIOR DOES
LIKEWISE.  FN7  THE NATIONAL LABOR RELATIONS BOARD HAS EMPLOYED THIS
FORMULA CONSISTENTLY SINCE 1937,  FN8  AND SOME STATE LABOR BOARDS HAVE
FOLLOWED THE EXAMPLE.  FN9  NOT ONLY HAVE CIRCUIT COURTS OF APPEALS,
EXCEPT OF THE SEVENTH CIRCUIT, GENERALLY ENFORCED ORDERS CONTAINING
THIS PROVISION, BUT THIS COURT HAS SEVERAL TIMES DONE SO.  SOUTHPORT
PETROLEUM CO. V. LABOR BOARD, 315 U.S. 100, 106, NOTE 6.  FN10 

THE DEARTH OF CASES IN WHICH ACTUAL CONTROVERSIES HAVE BEEN
PRECIPITATED BY THIS MORE GENERAL THAN DISCRIMINATING USE OF THIS
RITUAL INDICATES THAT ITS SIGNIFICANCE BOTH FOR GOOD AND ILL IS GREATER
IN ANTICIPATION THAN IN RETROSPECT. 

ADMINISTRATIVE AGENCIES HAVE CONSIDERABLE LATITUDE TO SHAPE THEIR
REMEDIES WITHIN THE SCOPE OF THEIR STATUTORY AUTHORITY AND, WHERE THE
INFIRMITY IS INADEQUACY OF FINDINGS TO SHOW APPROPRIATENESS OF THE
CHOICE MADE IN THE PARTICULAR CASE, ARE ORDINARILY ENTITLED TO HAVE THE
CASE REMANDED FOR FURTHER CONSIDERATION.  PHELPS DODGE CORP. V. LABOR
BOARD, 313 U.S. 177, 194; ADDISON V. HOLLY HILL FRUIT PRODUCTS, 322
U.S. 607, 616.  THE COURTS, NEVERTHELESS, MAY NOT GRANT AN ENFORCEMENT
ORDER OR INJUNCTION SO BROAD AS TO MAKE PUNISHABLE THE CONDUCT OF
PERSONS WHO ACT INDEPENDENTLY AND WHOSE RIGHTS HAVE NOT BEEN ADJUDGED
ACCORDING TO LAW.  CHASE NATIONAL BANK V. NORWALK, 291 U.S. 431, 436
37; HITCHMAN COAL & COKE CO. V. MITCHELL, 245 U.S. 229, 234; SCOTT V.
DONALD, 165 U.S. 107, 117; ALEMITE MFG. CORP. V. STAFF, 42 F.2D 832. 

THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDE THAT:  "EVERY ORDER
GRANTING AN INJUNCTION AND EVERY RESTRAINING ORDER  ...  IS BINDING
ONLY UPON THE PARTIES TO THE ACTION, THEIR OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, AND ATTORNEYS, AND UPON THOSE PERSONS IN ACTIVE CONCERT OR
PARTICIPATION WITH THEM WHO RECEIVE ACTUAL NOTICE OF THE ORDER BY
PERSONAL SERVICE OR OTHERWISE."  FN11  THIS IS DERIVED FROM THE COMMON
LAW DOCTRINE THAT A DECREE OF INJUNCTION NOT ONLY BINDS THE PARTIES
DEFENDANT BUT ALSO THOSE IDENTIFIED WITH THEM IN INTEREST, IN "PRIVITY"
WITH THEM, REPRESENTED BY THEM OR SUBJECT TO THEIR CONTROL.  IN ESSENCE
IT IS THAT DEFENDANTS MAY NOT NULLIFY A DECREE BY CARRYING OUT
PROHIBITED ACTS THROUGH AIDERS AND ABETTORS, ALTHOUGH THEY WERE NOT
PARTIES TO THE ORIGINAL PROCEEDING. 

THE TERM "SUCCESSORS AND ASSIGNS" IN AN ENFORCEMENT ORDER OF COURSE
MAY NOT ENLARGE ITS SCOPE BEYOND THAT DEFINED BY THE FEDERAL RULES OF
CIVIL PROCEDURE.  SUCCESSORS AND ASSIGNS MAY, HOWEVER, BE
INSTRUMENTALITIES THROUGH WHICH DEFENDANT SEEKS TO EVADE AN ORDER OR
MAY COME WITHIN THE DESCRIPTION OF PERSONS IN ACTIVE CONCERT OR
PARTICIPATION WITH THEM IN THE VIOLATION OF AN INJUNCTION.  IF THEY
ARE, BY THAT FACT THEY ARE BROUGHT WITHIN SCOPE OF CONTEMPT PROCEEDINGS
BY THE RULES OF CIVIL PROCEDURE.  WE HAVE INDICATED THAT LABOR BOARD
ORDERS ARE BINDING UPON SUCCESSORS AND ASSIGNS WHO OPERATE AS "MERELY A
DISGUISED CONTINUANCE OF THE OLD EMPLOYER."  SOUTHPORT PETROLEUM CO. V.
LABOR BOARD, 315 U.S. AT 106.  WE HAVE ALSO SAID OF AN INJUNCTION TO
RESTRAIN VIOLATION OF THE FAIR LABOR STANDARDS ACT, WHICH IS SOMEWHAT
ANALOGOUS TO LABOR BOARD ORDERS, THAT "NOT ONLY IS SUCH AN INJUNCTION
ENFORCIBLE BY CONTEMPT PROCEEDINGS AGAINST THE CORPORATION, ITS AGENTS
AND OFFICERS AND THOSE INDIVIDUALS ASSOCIATED WITH IT IN THE CONDUCT OF
ITS BUSINESS, BUT IT MAY ALSO, IN APPROPRIATE CIRCUMSTANCES, BE
ENFORCED AGAINST THOSE TO WHOM THE BUSINESS MAY HAVE BEEN TRANSFERRED,
WHETHER AS A MEANS OF EVADING THE JUDGMENT OR FOR OTHER REASONS." 
WALLING V. REUTER CO., 321 U.S. 671, 674.  IN BOTH OF THESE CASES THE
REFERENCE IS NOT MERELY TO SUCCESSION, BUT TO A RELATION BETWEEN THE
DEFENDANT AND THE SUCCESSOR WHICH MIGHT OF ITSELF ESTABLISH LIABILITY
WITHIN THE TERMS OF RULE 65. 

WE DO NOT UNDERTAKE TO DECIDE WHETHER OR UNDER WHAT CIRCUMSTANCES ANY
KIND OF SUCCESSOR OR ASSIGN WILL BE LIABLE FOR VIOLATION OF A LABOR
BOARD ORDER.  IT IS TRUE THAT WE HAVE SAID THAT "QUESTIONS OF
CONSTRUCTION HAD BETTER BE IRONED OUT BEFORE ENFORCEMENT ORDERS ISSUE
THAN UPON CONTEMPT PROCEEDINGS."  (J.I. CASE CO. V. LABOR BOARD, 321
U.S. 332, 341.)  BUT IT IS APPARENT FROM RULE 65, AND FROM THE VIEWS OF
ONE CIRCUIT COURT OF APPEALS AS TO THE NARROW EFFECT OF THE WORDS IN
THE ORDER AND OF ANOTHER AS TO THE BROAD EFFECT OF THE ORDER WITHOUT
THE WORDS, THAT WHETHER ONE BRINGS HIMSELF IN CONTEMPT AS A "SUCCESSOR
OR ASSIGN" DEPENDS ON AN APPRAISAL OF HIS RELATIONS AND BEHAVIOR AND
NOT UPON MERE CONSTRUCTION OF TERMS OF THE ORDER.  IF DEFENDANTS ENTER
UPON TRANSACTIONS WHICH RAISE DOUBTS AS TO THE APPLICABILITY OF THE
INJUNCTION, THEY MAY PETITION THE COURT GRANTING IT FOR A MODIFICATION
OR CONSTRUCTION OF THE ORDER.  CF. NEW JERSEY V. NEW YORK CITY, 296
U.S. 259.  WHILE SUCH RELIEF WOULD BE IN THE SOUND DISCRETION OF THE
COURT, WE THINK COURTS WOULD NOT BE APT TO WITHHOLD A CLARIFICATION IN
THE LIGHT OF A CONCRETE SITUATION THAT LEFT PARTIES OR "SUCCESSORS AND
ASSIGNS" IN THE DARK AS TO THEIR DUTY TOWARD THE COURT.  ENFORCEMENT
ORDERS ARE ISSUED TO EFFECTUATE THE PURPOSES OF THE ACT, NOT FOR THE
ENTRAPMENT OF PARTIES, AND COURTS NO LESS THAN PARTIES DESIRE TO AVOID
UNWITTING CONTEMPTS AS WELL AS TO PUNISH DELIBERATE ONES. 

NO CONCRETE CASE IS BEFORE US.  WE HAVE HERE AN ABSTRACT CONTROVERSY
OVER THE USE OF THESE WORDS, AND IT IS AS STERILE AS ABSTRACT
CONTROVERSIES USUALLY ARE.  THE EMPLOYER OBJECTS TO THE WORDS OF THE
ORDER MERELY AS WORDS.  THEY DO NOT ENLARGE ITS OWN OBLIGATION, AND IF
IT COMPLIES WITH THE ORDER, LITTLE BY WAY OF OBLIGATION COULD BE PASSED
TO A SUCCESSOR OR ASSIGN BY THE ORDER THAT IS NOT IN ANY EVENT IMPOSED
BY STATUTE.  THE BOARD IS NOT HERE ATTEMPTING TO REACH OR TO HOLD
ANYONE IN CONTEMPT BY VIRTUE OF SUCH ORDERS.  NO SUCCESSOR OR ASSIGN
APPEARS BEFORE US COMPLAINING THAT THESE WORDS PUT HIM IN JEOPARDY.  NO
ONE CAN BE PUNISHED FOR CONTEMPT BECAUSE OF THESE WORDS UNTIL AFTER A
JUDICIAL HEARING, IN WHICH THEIR OPERATION COULD BE DETERMINED ON A
CONCRETE SET OF FACTS.  ALL THAT IS BEFORE US IS THE QUESTION WHETHER
WE WILL HOLD ABSTRACTLY THAT THIS PROVISION IS AN ILLEGAL ONE TO
INCLUDE IN A CEASE AND DESIST ORDER OF THE LABOR BOARD OR AN
ENFORCEMENT ORDER OF THE COURT. 

WHETHER IT IS WISE THAT AN ORDER ATTEMPT TO DEFINE ITS OWN EFFECT ON
OTHERS THAN PARTIES TO THE ACTION WHEN THE LAW HAS ALREADY DONE SO IS
NOT FOR US TO SAY.  WE CANNOT SAY THAT "SUCCESSORS AND ASSIGNS" AS WELL
AS "OFFICERS AND AGENTS" MAY NOT UNDER SOME CIRCUMSTANCES BE AMONG
THOSE REACHED BY THE ORDER WITHIN THE SCOPE OF RULE 65 AND HENCE CANNOT
SAY THAT IT IS NOT A PERMISSIBLE PROVISION.  AFFIRMED. 

FN1  LABOR BOARD V. BREZNER TANNING CO., 141 F.2D 62, 65(C.C.A. 1ST);
LABOR BOARD V. BLACKSTONE MFG. CO., 123 F.2D 633, 635(C.C.A.2D); LABOR
BOARD V. WEIRTON STEEL CO., 135 F.2D 494, 498-99(C.C.A.3D); LABOR BOARD
V. LANDIS TOOL CO., 145 F.2D 152, 157(C.C.A.3D); LABOR BOARD V.
FEINBERG HOSIERY MILL, 134 F.2D 620(C.C.A.4TH); LABOR BOARD V. GLUEK
BREWING CO., 144 F.2D 847, 857(C.C.A.8TH); BETHLEHEM STEEL CO. V. LABOR
BOARD, 120 F.2D 641, 650-51(APP.  D.C.). 

FN2  LABOR BOARD V. BACHELDER, 125 F.2D 387, 388; LABOR BOARD V.
STONE, 125 F.2D 752, 757.  THE SIXTH CIRCUIT HAS ALSO REFUSED IN ONE
CASE TO INCLUDE THE PHRASE.  LABOR BOARD V. CLEVELAND-CLIFFS IRON CO.,
133 F.2D 295, 302. 

FN3  SEE ALSO IN RE LENNON, 166 U.S. 548; INTERNATIONAL BROTHERHOOD
OF TEAMSTERS V. KEYSTONE FREIGHT LINES, 123 F.2D 326, 329; LABOR BOARD
V. CLEVELAND-CLIFFS IRON CO., 133 F.2D 295, 302. 

FN4  SEE DECREES IN UNITED STATES V. PULLMAN CO., CIVIL ACTION NO.
994, E.D. PA. 1944; UNITED STATES V. VEHICULAR PARKING, LTD., CIVIL
ACTION NO. 259, D. DEL. 1944; ALUMINUM COLORS, INC. V. EMPIRE PLATING
CO., 5 F.SUPP.  687; UNITED STATES V. GREAT LAKES TOWING CO., 1 DECREES
AND JUDGMENTS IN FEDERAL ANTITRUST CASES, 253-54(N.D. OHIO, 1915);
UNITED GILPIN CORP. V. WILMORE, 100 COLO. 453, 456, 68 P.2D 34, 35. 

FN5  MATTER OF SUPERIOR WOOLEN MILLS, 8 F.T.C. 283, 288(1924); MATTER
OF AMERICAN SNUFF CO., 11 F.T.C. 144, 160(1927); MATTER OF SHERWIN
WILLIAMS CO., 36 F.T.C. 25, 72, 74(1943). 

FN6  SECURITIES & EXCHANGE COMMISSION V. ALDRICH BLAKE, INC., 1
S.E.C. JUD.  DEC.  19, 21. 

FN7  MATTER OF COVE HILL COAL CO., 7 F.R. 7572, 7574; MATTER OF
WALTRIP & SONS, 7 F.R. 7864. 

FN8  MATTER OF HILL BUS CO., 2 N.L.R.B. 781, 800. 

FN9  MATTER OF THE GREAT ATLANTIC & PACIFIC TEA CO., CASE NO. CU-333,
NEW YORK STATE LABOR RELATIONS BOARD; MATTER OF W.T. GRANT CO., CASE
NO. 82, PENNSYLVANIA LABOR RELATIONS BOARD. 

FN10  CITING CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197,
ENFORCING, AS MODIFIED, 4 N.L.R.B. 71, 108; LABOR BOARD V. NEWPORT NEWS
SHIPBUILDING CO., 308 U.S. 241, ENFORCING 8 N.L.R.B. 866, 877; LABOR
BOARD V. FALK CORP., 308 U.S. 453, ENFORCING 6 N.L.R.B. 654, 666; LABOR
BOARD V. WATERMAN STEAMSHIP CORP., 309 U.S. 206, ENFORCING 7 N.L.R.B.
237, 252; LABOR BOARD V. LINK-BELT CO., 311 U.S. 584, ENFORCING 12
N.L.R.B. 854, 883; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177,
ENFORCING, AS MODIFIED, AND REMANDING 19 N.L.R.B. 547, 603. 

IT IS SUGGESTED, AT LEAST INFERENTIALLY, THAT LABOR BOARD V. EXPRESS
PUBLISHING CO., 312 U.S. 426, IS AUTHORITY AGAINST THE POSITION OF THE
COURT IN THE CASE AT BAR.  HOWEVER, THE ORDER THERE UNDER REVIEW
CONTAINED THESE SAME WORDS.  MATTER OF EXPRESS PUBLISHING CO., 13
N.L.R.B. 1213, 1226.  WHILE THIS COURT LIMITED THE ENFORCEMENT ORDER IN
CERTAIN OTHER RESPECTS, IT DID NOT STRIKE THE WORDS "SUCCESSORS AND
ASSIGNS."  THE ISSUE WAS NOT PASSED ON, BUT ITS VERY ABSENCE FROM A
CASE CONCERNING PERMISSIBLE BREADTH OF ORDERS SUGGESTS THE INNOCUOUS
CHARACTER OF THE PROVISION AS COMPARED WITH THAT PASSED ON IN THE
EXPRESS CASE. 

FN11  RULE 65(D), WHICH IS DERIVED FROM SEC. 19 OF THE CLAYTON ACT,
38 STAT. 738; 28 U.S.C. SEC. 383.    MR. CHIEF JUSTICE STONE,
DISSENTING, WITH WHOM MR. JUSTICE ROBERTS AND MR. JUSTICE REED CONCUR. 

AN INJUNCTION IS A CONTINUING THREAT TO THOSE NAMED AS SUBJECT TO IT,
OF THE PAINS OF CONTEMPT PROCEEDINGS IF THEY DISOBEY ITS PROVISIONS. 
THE OPINION OF THE COURT RECOGNIZES THAT THE PRESENT INJUNCTION RUNNING
AGAINST THE EMPLOYER'S "SUCCESSORS AND ASSIGNS" PURPORTS TO INCLUDE
WITHIN ITS SWEEP SOME WHO ARE NOT SUBJECT TO ITS COMMAND AND IS THUS A
THREAT TO THOSE OVER WHOM THE COURT HAS NO AUTHORITY.  THE OPINION ALSO
ADMITS THAT THE PERSONS WHO ARE BOUND BY THE PRESENT DECREE WOULD BE AS
EFFECTIVELY BOUND IF THE DECREE WERE TO OMIT THE WORDS "SUCCESSORS AND
ASSIGNS."  SEE WALLING V. REUTER CO., 321 U.S. 671, 674-675, AND CASES
CITED. 

IT HAS LONG BEEN DEEMED TO BE AN ABUSE OF POWER FOR A FEDERAL COURT
TO ENJOIN PRACTICES IN WHICH A DEFENDANT HAS NOT ENGAGED AND WHICH ARE
UNRELATED TO THOSE WHICH MAY BE PROPERLY ENJOINED.  SEE LABOR BOARD V.
EXPRESS PUBLISHING CO., 312 U.S. 426, AND CASES CITED.  TO ME IT SEEMS
NO LESS A MISUSE OF AUTHORITY FOR A COURT, AS WELL AS FOR THE LABOR
BOARD ITSELF, TO THREATEN THOSE WHO ARE NOT SUBJECT TO ITS COMMAND. 
THIS IS THE MORE SO WHERE THE TENDENCY OF THE THREAT IS TO INFLICT AN
UNAUTHORIZED PENALTY ON THE EMPLOYER BY DETERRING THIRD PERSONS FROM
DEALING WITH HIM TO ACQUIRE HIS PROPERTY AND BUSINESS, IN CIRCUMSTANCES
IN WHICH THAT MAY LAWFULLY BE DONE. 

THAT THERE HAVE BEEN NUMEROUS CASES BEFORE THIS COURT WHERE THE
BOARD'S ORDER HAS NOT BEEN CHALLENGED IN THIS RESPECT, IS SIGNIFICANT
ONLY AS SHOWING HOW EXTENSIVE THE ABUSE HAS BECOME AND HOW READY
EMPLOYERS AND THE LOWER COURTS HAVE BEEN TO ACQUIESCE IN THREATENED
WRONG WHEN THE INJURY SEEMED NOT TO BE IMMEDIATE.  BUT THESE ARE NOT
REASONS FOR OUR ACQUIESCENCE, WHEN THE QUESTION IS BROUGHT TO US FOR
DECISION FOR THE FIRST TIME.  IT IS NO PART OF THE FUNCTION OF THE
BOARD OR OF COURTS TO MAKE UNWARRANTED THREATS AGAINST SUITORS OR
INNOCENT THIRD PERSONS.  SUCH MISLEADING AND UNWARRANTED USE OF THE
PHRASE SHOULD BE AVOIDED, EITHER BY STRIKING IT FROM THE DECREE OR SO
QUALIFYING IT AS TO DESIGNATE THE CLASS OF "SUCCESSORS AND ASSIGNS" TO
WHOM IT MAY BE LAWFULLY APPLIED.  CF. SOUTHPORT CO. V. LABOR BOARD, 315
U.S. 100, 107. 
..END :









FONDREN V. COMMISSIONER, 324 U.S. 18 


NO. 88.  ARGUED DECEMBER 11, 12, 1944.  - DECIDED JANUARY 29, 1945.  -
141 F.2D 419, AFFIRMED. 


1.  IRREVOCABLE TRUSTS FOR THE BENEFIT OF MINORS PROVIDED FOR
DISTRIBUTION OF SPECIFIED PERCENTAGES WHEN THE BENEFICIARIES REACHED
THE AGES OF 25 AND 30 AND OF THE REMAINDER WHEN THEY REACHED 35.  THE
TRUSTEE WAS AUTHORIZED TO APPLY INCOME AND CORPUS TOWARD MAINTENANCE
AND EDUCATION OF THE BENEFICIARIES IF, CONTRARY TO EXPECTATIONS,
NECESSITY THEREFOR SHOULD ARISE.  HELD THAT GIFTS TO THE TRUSTS WERE
GIFTS OF "FUTURE INTERESTS IN PROPERTY," WITHIN THE MEANING OF SEC.
504(B) OF THE REVENUE ACT OF 1932 AND TREASURY REGULATIONS 79, SO THAT
THE $5,000 EXCLUSION PRESCRIBED BY THAT SECTION WAS NOT ALLOWABLE.  P.
24. 

2.  TO BRING THE STATUTORY EXCLUSION INTO FORCE, IT IS NOT ENOUGH
THAT THE DONEE HAS ACQUIRED VESTED RIGHTS; HE MUST HAVE THE RIGHT
PRESENTLY TO USE, POSSESS, OR ENJOY THE PROPERTY.  P. 20. 

3.  THE FACT THAT THE BENEFICIARY IS SPECIFIED AND IN ESSE, OR THAT
THE AMOUNT OF THE GIFT IS DEFINITE AND CERTAIN, DOES NOT RENDER THE
STATUTORY EXCLUSION APPLICABLE, WHERE ENJOYMENT OF THE PROPERTY IS
POSTPONED.  P. 26. 

4.  SECTION 504(B) MAKES NO DISTINCTION BETWEEN GIFTS FOR THE BENEFIT
OF MINORS AND GIFTS TO ADULTS.  P. 28. 

5.  IT DOES NOT FOLLOW FROM THE RESULT HERE REACHED THAT THE
STATUTORY EXCLUSION WOULD NOT BE APPLICABLE IN ANY CASE TO GIFTS FOR
THE BENEFIT OF MINORS.  P. 29. 

6.  A SETTLED CONSTRUCTION OF A STATUTE, WHICH CONGRESS HAS
REENACTED, SHOULD BE FOLLOWED.  P. 29. 

FONDREN ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 323 U.S. 685, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE TAX COURT, 1 T.C. 1036, SUSTAINING THE COMMISSIONER'S ASSESSMENT OF
A DEFICIENCY IN GIFT TAXES. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

IN 1935, 1936 AND 1937 PETITIONER, ELLA F. FONDREN, AND HER HUSBAND,
SINCE DECEASED, CREATED SEVEN SEPARATE IRREVOCABLE TRUSTS, EACH IN
FAVOR OF A GRANDCHILD OF TENDER YEARS; AND EACH OF THEM MADE GIFTS TO
EACH TRUST OF CORPORATE STOCK HAVING THE FAIR MARKET VALUE OF $5,975. 
THE DONORS MADE GIFT TAX RETURNS FOR 1937, CLAIMING THE STATUTORY
EXCLUSION OF $5,000 FOR EACH GIFT, AND ACCORDINGLY REPORTED TAXABLE
GIFTS FOR EACH TRUST OF $975.  GIFT TAXES WERE PAID ON THIS BASIS. 

THE COMMISSIONER MADE DEFICIENCY ASSESSMENTS, DISALLOWING THE
EXCLUSIONS ON THE GROUND THAT THE GIFTS WERE OF "FUTURE INTERESTS IN
PROPERTY" WITHIN THE MEANING OF THE REVENUE ACT OF 1932, C. 209, 47
STAT. 169, AND TREASURY REGULATIONS 79(1936 ED.).  FN1  THE TAX COURT
UPHELD THE COMMISSIONER, THE CASES BEING CONSOLIDATED FOR HEARING AND
DECISION.  1 T.C. 1036.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE TAX
COURT'S DECISION, ONE JUDGE DISSENTING.  141 F.2D 419.  CERTIORARI WAS
GRANTED, 323 U.S. 685, BECAUSE OF THE IMPORTANCE OF THE QUESTION AS
AFFECTING THE TAXABILITY OF GIFTS MADE FOR THE BENEFIT OF MINOR
CHILDREN AND BECAUSE OF ALLEGED OR APPARENT CONFLICT WITH DECISIONS OF
OTHER COURTS.  FN2 

THE SOLE ISSUE IS WHETHER THE GIFTS WERE OF "FUTURE INTERESTS" WITHIN
THE MEANING OF THE STATUTE AND THE REGULATION.  THE LATTER PROVIDES: 

"ART. 11  ....  'FUTURE INTERESTS' IS A LEGAL TERM, AND INCLUDES
REVERSIONS, REMAINDERS, AND OTHER INTERESTS OR ESTATES, WHETHER VESTED
OR CONTINGENT, AND WHETHER OR NOT SUPPORTED BY A PARTICULAR INTEREST OR
ESTATE, WHICH ARE LIMITED TO COMMENCE IN USE, POSSESSION, OR ENJOYMENT
AT SOME FUTURE DATE OR TIME  ...."  UPON THE FACTS THE ISSUE TURNS ON
WHETHER THE INTERESTS ACQUIRED BY THE MINOR BENEFICIARIES WERE "LIMITED
TO COMMENCE IN USE, POSSESSION, OR ENJOYMENT AT SOME FUTURE DATE OR
TIME."  RYERSON V. UNITED STATES, 312 U.S. 405; UNITED STATES V.
PELZER, 312 U.S. 399. 

UNDER THESE DECISIONS IT IS NOT ENOUGH TO BRING THE EXCLUSION INTO
FORCE THAT THE DONEE HAS VESTED RIGHTS.  IN ADDITION HE MUST HAVE THE
RIGHT PRESENTLY TO USE, POSSESS OR ENJOY THE PROPERTY.  THESE TERMS ARE
NOT WORDS OF ART, LIKE "FEE" IN THE LAW OF SEIZIN, UNITED STATES V.
PELZER, SUPRA, AT 403, BUT CONNOTE THE RIGHT TO SUBSTANTIAL PRESENT
ECONOMIC BENEFIT.  THE QUESTION IS OF TIME, NOT WHEN TITLE VESTS, BUT
WHEN ENJOYMENT BEGINS.  WHATEVER PUTS THE BARRIER OF A SUBSTANTIAL
PERIOD BETWEEN THE WILL OF THE BENEFICIARY OR DONEE NOW TO ENJOY WHAT
HAS BEEN GIVEN HIM AND THAT ENJOYMENT MAKES THE GIFT ONE OF A FUTURE
INTEREST WITHIN THE MEANING OF THE REGULATION. 

ACCORDINGLY, IT HAS BEEN HELD THAT IF THE INCOME OF A TRUST IS
REQUIRED TO BE DISTRIBUTED PERIODICALLY, AS ANNUALLY, BUT DISTRIBUTION
OF THE CORPUS IS DEFERRED, THE GIFT OF THE INCOME IS ONE OF A PRESENT
INTEREST, THAT OF THE CORPUS ONE IN FUTURO.  FISHER V. COMMISSIONER,
132 F.2D 383; SENSENBRENNER V. COMMISSIONER, 134 F.2D 883.  A FORTIORI,
IF INCOME IS TO BE ACCUMULATED AND PAID OVER WITH THE CORPUS AT A LATER
TIME, THE ENTIRE GIFT IS OF A FUTURE INTEREST,  FN3  ALTHOUGH UPON
SPECIFIED CONTINGENCY SOME PORTION OR ALL OF THE FUND MAY BE PAID OVER
EARLIER.  FN4  THE CONTINGENCY MAY BE THE EXERCISE OF THE TRUSTEE'S
DISCRETION, EITHER ABSOLUTE OR CONTINGENT.  FN5 IT MAY ALSO BE THE NEED
OF THE BENEFICIARY, NOT EXISTING WHEN THE TRUST OR GIFT TAKES EFFECT
LEGALLY, BUT ARISING LATER UPON ANTICIPATED THOUGH UNEXPECTED
CONDITIONS, EITHER TO CREATE A DUTY IN THE TRUSTEE TO PAY OVER OR TO
PERMIT HIM TO DO SO IN HIS DISCRETION.  FN6 

IN THE LIGHT OF THESE PRINCIPLES AND DECISIONS, IT IS NECESSARY TO
CONSIDER THE TERMS OF THE TRUSTS AND THE CIRCUMSTANCES IN WHICH THE
GIFTS WERE MADE.  THE TRUST INSTRUMENTS WERE SUBSTANTIALLY UNIFORM
EXCEPT FOR VARIATIONS IN THE NAMES OF THE BENEFICIARIES AND, IN CASE OF
DEATH, THEIR SUCCESSORS IN INTEREST.  THE TRUSTS WERE IRREVOCABLE, THE
DONORS RETAINING NO BENEFICIAL INTEREST IN THE ESTATES.  EACH
INSTRUMENT NAMED THE DONOR, W. W. FONDREN, AS TRUSTEE, AND ELLA F.
FONDREN, THE OTHER DONOR, AS SUCCESSOR TRUSTEE.  THEY RESERVED THE
RIGHTS AS DONORS TO REMOVE ANY TRUSTEE, EXCEPT MR. FONDREN, AND TO NAME
SUCCESSOR TRUSTEES.  SUBJECT TO THESE RESERVATIONS AND THE DIRECTIONS
SET FORTH BELOW, THE TRUSTEE WAS GIVEN SUBSTANTIALLY COMPLETE CONTROL. 

THE TRUSTS' STATED PURPOSE WAS "TO PROVIDE FOR THE PERSONAL COMFORT,
SUPPORT, MAINTENANCE, AND WELFARE" OF THE GRANDCHILDREN.  BUT FROM THE
EXPLICIT RECITALS OF THE INSTRUMENTS,  FN7  AS WELL AS THE EVIDENCE,
INCLUDING A STIPULATION, IT IS CLEAR THAT THE PARENTS OF EACH CHILD
WERE SO SITUATED THAT, WHEN THE GIFTS WERE MADE, THEY WERE FULLY ABLE
TO PROVIDE FOR AND EDUCATE HIM.  AND, FROM THE SAME RECITALS, IT IS
CLEAR THERE WAS LITTLE REASON TO BELIEVE THAT ANY PARENT WOULD NOT
CONTINUE SO UNTIL THE CHILD'S MAJORITY.  ACCORDINGLY, IN EACH INSTANCE,
THE TRUST WAS TO CONTINUE UNTIL THE CHILD SHOULD ATTAIN THE AGE OF
THIRTY-FIVE.  HENCE ALSO THE INCOME WAS TO BE ACCUMULATED, EXCEPT UPON
THE CONTINGENCIES SPECIFIED BELOW, AND EACH BENEFICIARY WAS TO RECEIVE
25 PER CENT OF THE CORPUS AND ACCUMULATIONS AT AGE TWENTY-FIVE, 33 1/3
PER CENT AT AGE THIRTY, AND THE REMAINDER AT AGE THIRTY-FIVE. 

AWARE OF THE UNCERTAINTIES OF OUR WORLD, HOWEVER, THE DONORS DIRECTED
IN ARTICLE 3: 

"...  THE TRUSTEE SHALL PROVIDE FOR THE SUPPORT, MAINTENANCE AND
EDUCATION OF OUR SAID GRANDSON, USING ONLY THE INCOME OF SAID ESTATE
FOR THE PURPOSE IF IT BE SUFFICIENT.  IF IT BE NECESSARY TO USE ANY OF
THE CORPUS OF THE ESTATE FOR THAT PURPOSE AND IN THE JUDGMENT OF THE
TRUSTEE IT IS BEST TO DO SO, SAID TRUSTEE MAY MAKE ADVANCEMENTS OUT OF
THE CORPUS OF SAID TRUST ESTATE FOR SUCH PURPOSE FOR THE BENEFIT OF OUR
SAID GRANDSON. 

"IT IS CONTEMPLATED, HOWEVER, THAT OUR SAID GRANDSON WILL HAVE OTHER
ADEQUATE AND SUFFICIENT MEANS OF SUPPORT, AND THAT IT WILL NOT BE
NECESSARY TO USE EITHER THE INCOME OR THE CORPUS OF THE TRUST ESTATE
HEREBY CREATED TO PROPERLY PROVIDE FOR HIS EDUCATION, MAINTENANCE AND
SUPPORT; AND, IF THE INCOME FROM THE TRUST ESTATE BE NOT NEEDED FOR
THESE PURPOSES, THEN ALL OF THE INCOME FROM SAID TRUST ESTATE NOT SO
NEEDED SHALL BE BY THE TRUSTEE PASSED TO CAPITAL ACCOUNT OF SAID TRUST
ESTATE, AND SHALL BE AND BECOME A PART OF SAID TRUST ESTATE, IT BEING
OUR HOPE THAT ALL OF THE EARNINGS AND INCOME OF SAID TRUST ESTATE
DURING THE PERIOD OF THIS TRUST MAY BE USED TO AUGMENT THE TRUST ESTATE
AND BE DELIVERED TO OUR SAID GRANDSON AT THE PERIODS HEREIN PROVIDED
FOR.  IT IS EXPRESSLY PROVIDED, HOWEVER, THAT OUR SAID GRANDSON SHALL
BE PROPERLY MAINTAINED, EDUCATED AND SUPPORTED, AND IF IT BE NECESSARY
TO USE ALL OF THE INCOME AND EVEN ALL OF THE CORPUS OF THE TRUST ESTATE
HEREBY CREATED AND ALL AUGMENTATIONS THEREOF, IT SHALL BE THE DUTY OF
THE TRUSTEE TO SEE THAT THIS OBLIGATION SHALL BE PROPERLY AND
REASONABLY DISCHARGED  ...." 

IN VIEW OF THE APPARENTLY CONFLICTING TERMS OF THIS ARTICLE FOR USE
OF THE CORPUS, THE EXACT SCOPE OF THE TRUSTEE'S DISCRETION IS BY NO
MEANS CLEAR.  BUT THIS NEED NOT BE DETERMINED.  WHETHER THE DISPOSITION
IS IN HIS JUDGMENT ENTIRELY, AS THE FIRST CLAUSE INDICATES, OR UNDER
THE SECOND IS SO ONLY WITH REFERENCE TO HOW MUCH OF THE FUND MAY BE
NEEDED,  FN8  THE TRUSTEE CANNOT ACT IN ANY CASE TO APPLY CORPUS OR
INCOME FOR THE SUPPORT, MAINTENANCE AND EDUCATION OF THE BENEFICIARY
UNTIL NECESSITY ARISES. 

UNDER THE PARTICULAR FACTS, THIS REQUIREMENT IS IMPORTANT IN TWO
RESPECTS.  IT IS, AS PETITIONERS URGE, A LIMITATION UPON THE TRUSTEE'S
DISCRETION.  HIS POWER IS NOT UNCONFINED.  EVEN THOUGH THE EXISTENCE
AND AMOUNT OF NEED MAY BE IN THE FIRST INSTANCE FOR HIS DETERMINATION,
IT DOES NOT FOLLOW THAT, NEED EXISTING, THE TRUSTEE ARBITRARILY COULD
REFUSE TO MAKE THE APPLICATION.  THE CASE THEREFORE IS NOT ONE IN WHICH
PRESENT ENJOYMENT IS DEPENDENT UPON AN EXERCISE OF THE TRUSTEE'S
ABSOLUTE DISCRETION. 

BUT THIS DOES NOT SHOW, AS PETITIONERS SEEM TO THINK, THAT THE MINOR
BENEFICIARIES HAD, AT THE MOMENT OF THE GIFT, A PRESENT RIGHT OF
ENJOYMENT.  IT RATHER SHOWS THE CONTRARY - THAT THEIR RIGHT WAS NOT
ABSOLUTE AND IMMEDIATE, BUT WAS CONDITIONED, DURING MINORITY AND
AFTERWARD UNTIL THE TIMES SPECIFIED FOR DISTRIBUTION, UPON A
CONTINGENCY WHICH MIGHT NEVER ARISE.  THAT CONTINGENCY, BY THE EXPLICIT
TERMS OF THE TRUST, WAS THE EXISTENCE OF NEED WHICH WAS THEN
NONEXISTENT AND, IN THE STATED CONTEMPLATION OF THE DONORS, WAS NOT
LIKELY TO OCCUR IN THE FUTURE, AT ANY RATE DURING THE CHILD'S
MINORITY.  THE CIRCUMSTANCES SURROUNDING THE DONORS AND THE DONEES
CONFIRM THESE RECITALS.  THE CASE IS ONE THEREFORE IN WHICH THE GIFT,
IF PRESENTLY VESTED, MADE ENJOYMENT CONTINGENT UPON THE OCCURRENCE OF
FUTURE EVENTS, NOT ONLY UNCERTAIN, BUT BY THE RECITALS OF THE
INSTRUMENT ITSELF IMPROBABLE OF OCCURRENCE.  THE GIFTS CONSEQUENTLY
WERE OF "FUTURE INTERESTS IN PROPERTY" WITHIN THE MEANING OF SEC.
504(B). 

PETITIONERS' CONTRARY ARGUMENT, APART FROM THE MISCONCEPTION THAT
LEGAL VESTING OF THE INTEREST WITHOUT MORE SATISFIES THE STATUTE,  FN9
RESTS CHIEFLY UPON CONSIDERATIONS ARISING FROM THE LEGISLATIVE HISTORY
AND FROM THE FACT THAT GIFTS FOR THE BENEFIT OF CHILDREN UNDER LEGAL
DISABILITY TO MANAGE THEIR OWN PROPERTY MUST MAKE PROVISION FOR ITS
CONTROL BY TRUSTEES OR OTHERWISE. 

SPECIAL STRESS IS PLACED ON THE FACT THAT EACH GIFT WAS MADE TO OR
FOR THE BENEFIT OF A SPECIFICALLY NAMED BENEFICIARY THEN IN ESSE AND
FOR A DEFINITE AMOUNT.  AS THE PELZER OPINION NOTED, 312 U.S. AT 403,
THE COMMITTEE REPORTS RECOMMENDING THE LEGISLATION STATED:  "THE
EXEMPTION BEING AVAILABLE ONLY IN SO FAR AS THE DONEES ARE
ASCERTAINABLE, THE DENIAL OF THE EXEMPTION IN THE CASE OF GIFTS OF
FUTURE INTERESTS IS DICTATED BY THE APPREHENDED DIFFICULTY, IN MANY
INSTANCES, OF DETERMINING THE NUMBER OF EVENTUAL DONEES AND THE VALUES
OF THEIR RESPECTIVE GIFTS."  FN10  AND IN THE PELZER CASE THE COURT
FOUND THAT THE GIFT INVOLVED THESE DIFFICULTIES, AS WELL AS
POSTPONEMENT OF ENJOYMENT TO THE HAPPENING OF A FUTURE UNCERTAIN EVENT,
SINCE THE RIGHT OF ENJOYMENT WAS CONTINGENT IN ANY EVENT UPON THE
BENEFICIARIES' SURVIVING THE TEN-YEAR PERIOD SPECIFIED FOR ACCUMULATION
OF INCOME.  312 U.S. AT 404. 

BOTH CONCLUSIONS WOULD SEEM APPLICABLE IN THIS CASE, THE CHIEF
DIFFERENCE BEING THAT THE PERIOD OF POSTPONEMENT, WHICH THE
BENEFICIARIES MUST SURVIVE BEFORE ENJOYMENT BEGINS, IS INDEFINITE
RATHER THAN FOR A SPECIFIED TIME.  THAT IS TRUE IN ANY CASE WHERE THE
LENGTH OF THE PERIOD IS GOVERNED BY A CONTINGENCY.  BUT THE REGULATION,
ADOPTED ALMOST IN THE LANGUAGE OF THE COMMITTEE REPORTS,  FN11  DOES
NOT LIMIT THE DENIAL OF THE EXEMPTION TO INSTANCES WHERE THE DEFERMENT
OF ENJOYMENT IS AT ALL EVENTS FOR A PERIOD WHICH IS DEFINITE AND
CERTAIN.  CF. COMMISSIONER V. GLOS, 123 F.2D 548, 550.  CLEARLY THE
STATUTE IS NOT TO BE APPLIED DIFFERENTLY, TO GRANT OR DENY THE
EXEMPTION, IF THERE IS POSTPONEMENT, MERELY BECAUSE IN ONE CASE THE
PERIOD IS UNDER ANY EVENTUALITY FOR A CERTAIN, SPECIFIED LENGTH OF
TIME, WHEREAS IN ANOTHER IT IS OF UNCERTAIN OR INDEFINITE LENGTH.  THE
IMPORTANT THING IS THE CERTAINTY OF POSTPONEMENT, NOT CERTAINTY OF THE
LENGTH OF ITS DURATION. 

FURTHERMORE, IF THERE IS POSTPONEMENT, THE EXEMPTION IS DENIED
WHETHER OR NOT THE ADMINISTRATIVE DIFFICULTIES ANTICIPATED IN THE
COMMITTEE REPORTS INHERE IN THE PARTICULAR GIFT.  COMMISSIONER V. GLOS,
SUPRA; WELCH V. PAINE, 120 F.2D 141.  THOSE REPORTS SPECIFICALLY STATE
THESE DIFFICULTIES ARE PRESENT "IN MANY INSTANCES."  BUT THEY ALSO
STATE THAT "THE TERM 'FUTURE INTERESTS IN PROPERTY' REFERS TO ANY
INTEREST OR ESTATE, WHETHER VESTED OR CONTINGENT, LIMITED TO COMMENCE
IN POSSESSION OR ENJOYMENT AT A FUTURE DATE."  FN12  THEY THUS
CONTEMPLATE, AS DOES THE REGULATION FRAMED IN SIMILAR TERMS, VESTED AS
WELL AS CONTINGENT INTERESTS AND ESTATES.  AND THERE IS NOTHING TO
INDICATE THAT GIFTS TO SPECIFIED DONEES IN ESSE AND IN DEFINITE AMOUNTS
ARE TO BE EXCLUDED FROM THE DENIAL, IF BY THE TERMS OF THE GIFT
ENJOYMENT IS DEFERRED TO A FUTURE TIME.  AGAIN, THE CRUCIAL THING IS
POSTPONEMENT OF ENJOYMENT, NOT THE FACT THAT THE BENEFICIARY IS
SPECIFIED AND IN ESSE OR THAT THE AMOUNT OF THE GIFT IS DEFINITE AND
CERTAIN.  FN13 

THE CONSIDERATIONS, WHICH PETITIONERS ADVANCE TO SUPPORT THEIR
POSITION, FROM THE MINORITY OF THE BENEFICIARIES AND THEIR CONSEQUENT
LEGAL DISABILITY TO MANAGE AND CONTROL THEIR PROPERTY ARE INTERMINGLED
WITH OTHERS RELATING TO THE MOTIVES OF THE DONORS IN MAKING THE GIFTS. 
IT IS SAID THAT THEIR PURPOSE WAS TO PROVIDE FOR THE "COMFORT, SUPPORT,
MAINTENANCE AND WELFARE," INCLUDING EDUCATION, OF THE GRANDCHILDREN;
THAT THE LATTER WERE INCAPABLE OF TAKING OVER THE MANAGEMENT AND
CONTROL OF THE PROPERTY; THAT ACCORDINGLY IT WAS NECESSARY FOR SOME
ARRANGEMENT TO BE MADE FOR VESTING THIS POWER IN TRUSTEES OR OTHERS
CAPABLE OF EXERCISING IT; THAT THE TRUSTEES WERE GIVEN NO POWER TO
WITHHOLD EITHER INCOME OR CORPUS IN CASE OF NEED; AND CONSEQUENTLY THE
WHOLE FUND BECAME AVAILABLE TO THE BENEFICIARY FOR HIS MAINTENANCE
"IMMEDIATELY UPON THE CONSUMMATION OF THE GIFT," SO THAT HE WAS VESTED
AT ONCE WITH THE RIGHT OF PRESENT ENJOYMENT AS FULLY AS ANY CHILD OF
TENDER YEARS COULD BE AND IN NO WAY DIFFERENTLY, TAKING ACCOUNT OF HIS
DISABILITY, THAN ANY OWNER OF PROPERTY BY TITLE IN FEE SIMPLE.    SO
FAR AS THE ARGUMENT TURNS ON THE MOTIVE OF THE DONORS, IT MAY BE
ANSWERED THAT THE STATUTE AND THE REGULATION MAKE NO SUCH TEST.  IF
MOTIVE HAS BEARING, IT IS ONLY BY REASON OF ITS EFFECT UPON THE ELEMENT
OF TIME AND WHATEVER RELATION MAY BE GIVEN, BY THE PARTICULAR TERMS OF
THE GIFT, TO IT AND THE DISCLOSING OF A PURPOSE TO PROVIDE FOR OR
AGAINST IMMEDIATE ENJOYMENT.  THE STATUTE IN THIS RESPECT PURPORTS TO
MAKE NO DISTINCTION BETWEEN GIFTS TO MINORS AND GIFTS TO ADULTS.  IF
THERE IS DEFERMENT IN EITHER CASE THE EXEMPTION IS DENIED. 
CONSEQUENTLY IN THIS CASE THE DONORS' LAUDABLE DESIRE TO MAKE PROVISION
FOR THEIR GRANDCHILDREN IN CASE OF FUTURE NEED CANNOT NULLIFY THE
DEFERMENT WHICH THE RECITED ABSENCE OF PRESENT NEED, COUPLED WITH THE
TERMS OF THE TRUST, BROUGHT ABOUT.  AGAIN, CONTINGENCY OF NEED IN THE
FUTURE IS NOT IDENTICAL WITH THE FACT OF NEED PRESENTLY EXISTING.  AND
A GIFT EFFECTIVE ONLY FOR THE FORMER SITUATION IS NOT EFFECTIVE, FOR
PURPOSES OF RELIEF FROM THE TAX, AS IF THE LATTER WERE SPECIFIED,
WHETHER THE DONEE IS AN ADULT OR A MINOR. 

UPON THE FACTS, FURTHERMORE, THE TRUSTS HARDLY CAN BE TAKEN AS
DESIGNED PRIMARILY FOR THE PERIODS COVERED BY THE CHILDREN'S MINORITY. 
THEY DID NOT TERMINATE WITH THE ENDING OF THAT PERIOD.  THE GRADUATED
SCALE OF PAYMENTS, BEGINNING AT AGE TWENTY-FIVE AND ENDING AT THIRTY
FIVE, TOGETHER WITH THE PROHIBITION OF PAYMENT EARLIER EXCEPT IN CASE
OF NECESSITY, SHOWS PRINCIPAL CONCERN FOR A PERIOD OF ADULT LIFE.  AND,
FROM THE FACT THAT THIS WOULD BE THE PERIOD WHEN THE GRANDCHILDREN
NORMALLY WOULD BE ASSUMING FAMILY RESPONSIBILITIES OF THEIR OWN, THE
INFERENCE WELL MIGHT BE DRAWN THAT THE CHIEF PURPOSE WAS TO GIVE AID
AND SOME SECURITY IN THAT TIME.  THE CONTINGENT PROVISION, IN CASE OF
EARLIER NEED, CANNOT BE TAKEN THEREFORE TO REPRESENT THE DONORS'
PRIMARY CONCERN AS EXPRESSED IN THE INSTRUMENTS.  CF. FISHER V.
COMMISSIONER, 132 F.2D 383, 386.  BUT, WHETHER SO OR NOT, IN THE
PARTICULAR CIRCUMSTANCES THAT NEED WAS BUT A CONTINGENCY TO BE
REALIZED, IF AT ALL, IN THE FUTURE.  AND, UNTIL REALIZED, THE
CONTINGENCY STOOD SQUARELY IN THE WAY OF ANY CHILD'S RECEIVING A SINGLE
DOLLAR FROM THE FUND. 

FINALLY IT IS URGED THAT UNLESS THESE GIFTS ARE TO BE TAKEN AS
CONFERRING THE RIGHT TO IMMEDIATE ENJOYMENT, NO GIFT FOR THE BENEFIT OF
A CHILD OF TENDER YEARS CAN BE SO REGARDED SINCE IN ANY SUCH CASE "SOME
COMPETENT PERSON MUST BE THE PRIMARY JUDGE AS TO THE NECESSITY AND
EXTENT OF REASONABLE REQUIREMENTS OF THE BENEFICIARY."  THE ARGUMENT IS
APPEALING, IN SO FAR AS IT SEEKS TO AVOID IMPUTING TO CONGRESS THE
INTENTION TO "PENALIZE GIFTS TO MINORS MERELY BECAUSE THE LEGAL
DISABILITY OF THEIR YEARS PRECLUDES THEM FOR A TIME FROM RECEIVING
THEIR INCOME IN HAND CURRENTLY."  CF. DISSTON V. COMMISSIONER, 144 F.2D
115, 119.  BUT WE THINK IT IS NOT APPLICABLE IN THE FACTS OF THIS CASE,
SINCE BY THE TERMS OF THE TRUSTS AND THE FACTS RECITED IN THE
INSTRUMENTS NONE OF THE FUND, WHETHER INCOME OR CORPUS, COULD BE
APPLIED IMMEDIATELY FOR THE CHILD'S USE OR ENJOYMENT. 

IT DOES NOT FOLLOW, AS PETITIONERS SAY, THAT IF THE EXEMPTION DOES
NOT APPLY IN THIS CASE IT CAN APPLY IN NO OTHER MADE FOR A MINOR'S
BENEFIT.  WHENEVER PROVISION IS MADE FOR IMMEDIATE APPLICATION OF THE
FUND FOR SUCH A PURPOSE, WHETHER OF INCOME OR OF CORPUS, THE EXEMPTION
APPLIES.  WHETHER, IN THE CASE OF A GIFT REQUIRING SUCH AN APPLICATION
OF THE INCOME, BUT PROVIDING FOR RETENTION OF A CORPUS NO MORE THAN
REASONABLY SUFFICIENT TO PRODUCE THE INCOME REQUIRED FOR THIS PURPOSE
AND TO INSURE ITS CONTINUED PAYMENT DURING MINORITY, THE DONATION WOULD
FALL WITHIN THE EXEMPTION, AS TO CORPUS AS WELL AS INCOME, IS A
QUESTION NOT PRESENTED ON THIS RECORD AND THEREFORE NOT DETERMINED. 

THE REGULATION HAS RECEIVED THE CONSTRUCTION NOW REAFFIRMED WITH
SUBSTANTIAL CONSISTENCY.  THE STATUTE, WITH THE MEANING THUS SETTLED,
HAS BEEN REENACTED BY CONGRESS.  FN14  THE CONSTRUCTION SHOULD BE
FOLLOWED UNTIL CONGRESS SEES FIT TO CHANGE IT. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE STATUTE IS AS FOLLOWS: 

"SEC. 504.  NET GIFTS. 

"(A)  GENERAL DEFINITION.  - THE TERM 'NET GIFTS' MEANS THE TOTAL
AMOUNT OF GIFTS MADE DURING THE CALENDAR YEAR, LESS THE DEDUCTIONS
PROVIDED IN SECTION 505. 

"(B)  GIFTS LESS THAN $5,000.  - IN THE CASE OF GIFTS (OTHER THAN OF
FUTURE INTERESTS IN PROPERTY) MADE TO ANY PERSON BY THE DONOR DURING
THE CALENDAR YEAR, THE FIRST $5,000 OF SUCH GIFTS TO SUCH PERSON SHALL
NOT, FOR THE PURPOSES OF SUBSECTION (A), BE INCLUDED IN THE TOTAL
AMOUNT OF GIFTS MADE DURING SUCH YEAR." 

THE PERTINENT PART OF THE REGULATION IS QUOTED IN THE TEXT BELOW. 

FN2  THE PETITION ALLEGED CONFLICT WITH SMITH V. COMMISSIONER, 131
F.2D 254(C.C.A.8TH); SENSENBRENNER V. COMMISSIONER, 134 F.2D
883(C.C.A.7TH); AND KINNEY V. ANGLIM, 43 F.SUPP.  431(N.D. CALIF.). 
CF. ALSO DISSTON V. COMMISSIONER, 144 F.2D 115(C.C.A.3     THE
DECISION, ONE JUDGE DISSENTING, OVERRULED THE PRIOR DECISION IN
COMMISSIONER V. TAYLOR, 122 F.2D 714, CERT. DENIED, 314 U.S. 699.  A
PETITION FOR WRIT OF CERTIORARI WAS FILED IN THE DISSTON CASE ON
OCTOBER 12, 1944, AND NOW IS PENDING. 

FN3  WELCH V. PAINE, 120 F.2D 141; COMMISSIONER V. TAYLOR, 122 F.2D
714, 715, CERT. DENIED, 314 U.S. 699; COMMISSIONER V. BRANDEGEE, 123
F.2D 58; COMMISSIONER V. PHILLIPS' ESTATE, 126 F.2D 851; COMMISSIONER
V. GARDNER, 127 F.2D 929; WELCH V. PAINE, 130 F.2D 990; COMMISSIONER V.
WELLS, 132 F.2D 405; FRENCH V. COMMISSIONER, 138 F.2D 254; ROBERTS V.
COMMISSIONER, 143 F.2D 657; HOWE V. UNITED STATES, 142 F.2D 310;
HUTCHINGS-SEALY NATIONAL BANK V. COMMISSIONER, 141 F.2D 422; HELVERING
V. BLAIR, 121 F.2D 945. 

FN4  IBID. 

FN5  WELCH V. PAINE, 120 F.2D 141; COMMISSIONER V. TAYLOR, 122 F.2D
714, 715, CERT. DENIED, 314 U.S. 699; COMMISSIONER V. BRANDEGEE, 123
F.2D 58; COMMISSIONER V. PHILLIPS' ESTATE, 126 F.2D 851; COMMISSIONER
V. GARDNER, 127 F.2D 929; WINTERBOTHAM V. COMMISSIONER, 46 B.T.A. 972;
CF. RYERSON V. UNITED STATES, 312 U.S. 405, 408. 

FN6  CF. AUTHORITIES CITED NOTE 3 SUPRA. 

FN7  CF. THE RECITALS QUOTED IN THE TEXT BELOW. 

FN8  PETITIONER PRESENTS THE CASE AS IF NO DISCRETION WHATEVER WERE
VESTED IN THE TRUSTEE AS TO MAKING THE PAYMENTS OVER.  HOWEVER, IN THE
FIRST PROVISION FOR USE OF THE CORPUS SUCH USE IS AUTHORIZED "IF IT BE
NECESSARY  ...  AND IN THE JUDGMENT OF THE TRUSTEE IT IS BEST TO DO
SO"; IN THE OTHER PROVISION THE DUTY IMPOSED, "IF IT BE NECESSARY TO
USE ALL OF THE INCOME AND EVEN ALL OF THE CORPUS," IS ONE "TO SEE THAT
THIS OBLIGATION SHALL BE PROPERLY AND REASONABLY DISCHARGED."  IF THE
FIRST CLAUSE LIMITS THE SECOND, THE TRUSTEE'S DISCRETION IS BOUNDED
ONLY BY WHAT HE THINKS "IT IS BEST TO DO," AND IN ANY EVENT UNDER THE
LATTER HIS DUTY IS ONLY TO SEE THAT THE OBLIGATION IS "PROPERLY AND
REASONABLY" DISCHARGED.  PRESUMABLY ALSO THE TRUSTEE WOULD HAVE SOME
ROOM FOR JUDGMENT ON WHETHER PARTICULAR CIRCUMSTANCES WOULD AMOUNT TO
NECESSITY AND PARTICULAR MEASURES WOULD BE REQUIRED TO MEET IT. 

FN9  SEVERAL OF PETITIONERS' STATEMENTS OF THEIR CONTENTIONS IGNORE
THE CONTINGENCY UPON WHICH ENJOYMENT IS DEFERRED IN THIS CASE, NAMELY
THE OCCURRENCE AT SOME FUTURE TIME OF THE NEED OR NECESSITY OF THE
BENEFICIARY WHICH WOULD BRING THE TRUSTEE'S POWER OR DUTY TO PROVIDE
FOR SUPPORT OR MAINTENANCE FROM THE TRUST FUND INTO PLAY.  IT IS NOT
NECESSARY TO NOTE THESE CONTENTIONS SPECIFICALLY FURTHER THAN TO SAY,
IN ADDITION TO WHAT HAS BEEN SAID ALREADY, THAT THEY ASSUME AS THE
ANSWER TO IT THE VERY ISSUE IN THE CASE. 

FN10  H. REP. NO. 708, 72D CONG., 1ST SESS., 29; S. REP. NO. 665, 72D
CONG., 1ST SESS., 41. 

FN11  CF. TEXT AT NOTE 12 INFRA. 

FN12  CF. NOTE 10 SUPRA. 

FN13  THE ABSENCE OF THESE FACTORS IS RELEVANT AS SHOWING THE MORE
CLEARLY THAT POSTPONEMENT EXISTS AND THEREFORE THE EXEMPTION DOES NOT
APPLY.  THEIR PRESENCE DOES NOT SHOW THAT THERE IS NO POSTPONEMENT OR
THAT THE EXEMPTION APPLIES.  THE ADMINISTRATIVE DIFFICULTIES RELATING
TO THESE MATTERS "IN MANY INSTANCES" WERE REASONS FOR DENYING THE
EXEMPTION.  THEY DO NOT AND WERE NOT INTENDED TO ENCOMPASS THE FULL
SCOPE OF THE DENIAL.  AS THE STATUTE EXTENDED THE EXEMPTION "IN THE
SPECIFIED AMOUNT, TO ALL GIFTS, WHETHER LARGE OR SMALL, 'MADE TO ANY
PERSON,'" HELVERING V. HUTCHINGS, 312 U.S. 393, 397, SO IT DENIED THE
EXEMPTION TO ALL GIFTS, WHETHER LARGE OR SMALL, VESTED OR CONTINGENT,
MADE TO ANY PERSON, WHETHER SPECIFIED AND IN ESSE OR ASCERTAINABLE ONLY
IN THE FUTURE, AND WHETHER FOR A SPECIFIC OR A PRESENTLY
UNASCERTAINABLE AMOUNT, IF THE GIFT IS ONE OF A "FUTURE INTEREST IN
PROPERTY," THAT IS, ONE AS TO WHICH ENJOYMENT IS POSTPONED TO SOME
FUTURE TIME. 

FN14  CONGRESS WITHDREW THE EXCLUSION, AS TO GIFTS IN TRUST, IN THE
REVENUE ACT OF 1938, C. 289, 52 STAT. 447, SEC. 505, AMENDING SEC.
504(B) OF THE 1932 ACT.  BUT IT WAS RESTORED, THOUGH REDUCED TO $3,000,
BY THE REVENUE ACT OF 1942, C. 619, 56 STAT. 798, SEC. 454. 
..END :



















UNITED STATES V. TOWNSLEY, 323 U.S. 557 


NO. 134.  ARGUED DECEMBER 12, 1944.  - DECIDED JANUARY 15, 1945.  - 101
CT. CLS. 237, AFFIRMED. 


1.  SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, SO
FAR AS IT PROVIDES FOR OVERTIME COMPENSATION FOR SERVICES IN EXCESS OF
40 HOURS PER WEEK, APPLIES TO GOVERNMENT EMPLOYEES OF THE PANAMA CANAL
WHOSE COMPENSATION IS FIXED ON A MONTHLY BASIS.  P. 565. 

2.  IN THE CASE OF AN EMPLOYEE WHOSE NORMAL WORK WEEK WAS SIX 8-HOUR
DAYS, OVERTIME COMPENSATION WAS PROPERLY COMPUTED BY MULTIPLYING THE
EMPLOYEE'S MONTHLY SALARY BY TWELVE AND DIVIDING THE RESULT BY FIFTY
TWO TO ASCERTAIN HIS WEEKLY SALARY; THEN DIVIDING THE WEEKLY SALARY BY
FIVE TO OBTAIN HIS PAY FOR AN 8-HOUR DAY; AND THEN MULTIPLYING THE
NUMBER OF WEEKS IN WHICH HE HAD WORKED A SIXTH DAY BY THE DAILY WAGE
PLUS ONE-HALF.  P. 573. 

UNITED STATES V. TOWNSLEY. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 686, TO REVIEW A JUDGMENT FOR THE PLAINTIFF IN A
SUIT TO RECOVER OVERTIME COMPENSATION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PARTIES AGREE THAT THE PRINCIPAL QUESTION PRESENTED IS WHETHER
SO FAR AS IT PROVIDES FOR OVERTIME COMPENSATION FOR SERVICES IN EXCESS
OF 40 HOURS PER WEEK, APPLIES TO GOVERNMENT EMPLOYES OF THE CANAL ZONE
WHOSE COMPENSATION IS FIXED ON A MONTHLY BASIS.  THE COURT OF CLAIMS
ANSWERED IN THE AFFIRMATIVE.  FN2 IF WE TAKE THE SAME VIEW, A
SUBSIDIARY INQUIRY IS WHETHER THAT COURT ADOPTED THE RIGHT METHOD FOR
CALCULATING THE OVERTIME COMPENSATION. 

THE SECTION, IN FULL, IS: 

"THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION
WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND
OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING
AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER
THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN
ACCORDANCE WITH THE FULL-TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE
SCHEDULES IN EFFECT ON JUNE 1, 1932:  PROVIDED, THAT THE REGULAR HOURS
OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL
BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF." 

BETWEEN MARCH 28, 1934, AND AUGUST 31, 1939, THE RESPONDENT WAS
EMPLOYED BY THE PANAMA CANAL SUCCESSIVELY AS OPERATOR, CHIEF OPERATOR,
AND MASTER OF A DREDGE, AND WAS PAID ON A MONTHLY BASIS AT RATES FIXED
BY THE GOVERNOR OF THE CANAL ZONE UPON RECOMMENDATION OF A WAGE BOARD. 
THE RESPONDENT'S NORMAL WORK WEEK CONSISTED OF SIX 8-HOUR DAYS.  HE
RETIRED AUGUST 29, 1939, AND THEN, FOR THE FIRST TIME, ASSERTED THAT
UNDER THE ACT HE WAS ENTITLED TO COMPENSATION AT THE RATE OF TIME AND
ONE-HALF FOR ALL HOURS WORKED IN EXCESS OF 40 PER WEEK.  IN PROSECUTION
OF HIS CLAIM HE INSTITUTED THIS SUIT MARCH 14, 1940. 

THE COURT OF CLAIMS HELD THAT HE WAS ENGAGED IN ONE OF THE "TRADES
AND OCCUPATIONS" WHOSE COMPENSATION "IS SET BY WAGE BOARDS OR OTHER
WAGE-FIXING AUTHORITIES" COVERED BY THE ACT.  WE THINK THIS CONCLUSION
IS RIGHT AND DO NOT UNDERSTAND THE PETITIONER NOW TO CONTEST IT.  THE
COURT FURTHER HELD THAT THE STATUTE EMBRACED THOSE EMPLOYES OF THE
CANAL ZONE WHOSE WAGES ARE PAID ON A MONTHLY BASIS.  THIS THE
GOVERNMENT CONTESTS, RELYING ON THE WORDS OF THE ACT, ON ADMINISTRATIVE
PRACTICE AND ON LEGISLATIVE HISTORY.  A STATEMENT OF THE BACKGROUND OF
THE LEGISLATION AND ITS APPLICATION SEEMS NECESSARY TO DECISION. 

IN 1923 CONGRESS ADOPTED THE "CLASSIFICATION ACT"  FN3  CLASSIFYING
THE EMPLOYMENT AND FIXING THE COMPENSATION FOR DIFFERENT CLASSES OF
EMPLOYES OF CERTAIN DEPARTMENTS OF THE GOVERNMENT.  IT EXCLUDED FROM
THE TERMS OF THE ACT CERTAIN OCCUPATIONS, INCLUDING APPRENTICES,
HELPERS OR JOURNEYMEN IN A RECOGNIZED TRADE OR CRAFT AND SKILLED OR
SEMI-SKILLED LABORERS, AMONG OTHERS.  ADMITTEDLY, CERTAIN EMPLOYES OF
THE PANAMA CANAL, INCLUDING THE RESPONDENT, WERE NOT COVERED BY THIS
ACT.  THEIR COMPENSATION WAS TO BE FIXED BY THE PRESIDENT, OR BY HIS
AUTHORITY, UNDER THE ACT OF AUGUST 24, 1912; FN4  SPECIFICALLY IT WAS
SET BY THE GOVERNOR OF THE PANAMA CANAL ON THE ADVICE OF A WAGE BOARD. 

THE ACT OF MARCH 28, 1934, WITH WHICH WE ARE HERE CONCERNED, WAS THE
LAST OF THE SO-CALLED ECONOMY ACTS INTENDED TO DECREASE EXPENSES BY
REDUCTION OF COMPENSATION AND SUSPENSION OF PRIVILEGES OF FEDERAL
EMPLOYES.  BY THE FIRST SUCH ACT, APPROVED JUNE 30, 1932,  FN5  A
REGULAR SCHEDULE OF REDUCTION OF SALARIES, BY A SYSTEM OF FURLOUGHS OR
REDUCTION OF THE WORK WEEK, WAS ESTABLISHED. 

BY THE ACT OF MARCH 20, 1933,  FN6  CONGRESS SUPERSEDED THE FURLOUGH
SYSTEM AND PROVIDED FOR A REDUCTION, NOT TO EXCEED 15%, IN THE
COMPENSATION OF ALL EMPLOYES.  BY THE ACT OF MARCH 28, 1934, THIS
REDUCTION WAS CUT TO 10% FOR A PORTION OF THE FISCAL YEAR 1934, AND TO
5% FOR THE FISCAL YEAR 1935.  POSSIBLE REDUCTIONS IN COMPENSATION
IMPOSED ON FEDERAL EMPLOYES WERE NOT, HOWEVER, LIMITED TO THOSE
PRESCRIBED IN THE CITED STATUTES.  MEN WERE DISCHARGED AND REHIRED IN
LOWER CLASSIFICATIONS AT THE LOWER WAGES APPLICABLE AND WERE FURLOUGHED
WITHOUT PAY, IN ORDER TO KEEP WITHIN APPROPRIATIONS. 

WHEN THE BILL WHICH BECAME THE ACT OF MARCH 28, 1934 WAS UNDER
CONSIDERATION, A REPRESENTATIVE OF A LABOR ORGANIZATION APPEARED BEFORE
A SUBCOMMITTEE OF THE SENATE COMMITTEE ON APPROPRIATIONS AND ADVOCATED
LEGISLATION TO PROHIBIT CERTAIN DISCRIMINATORY REDUCTIONS IN THE WAGES
OF PER DIEM NAVY YARD WORKERS.  HE POINTED TO THE CONTINUANCE OF THE
PRACTICE OF FURLOUGHING THEM ONE DAY IN EACH TWO WEEKS, THUS REDUCING
THE HOURS WORKED TO 40 PER WEEK, AND SHOWED THAT THIS, IN ADDITION TO
THE 15% REDUCTION OF PAY REQUIRED BY THE ECONOMY ACT THEN IN FORCE,
ACTUALLY CUT THEIR BASE PAY OVER 22%.  HE ALSO COMPLAINED OF OTHER
PRACTICES WHICH HAD THE EFFECT OF REDUCING THEIR COMPENSATION.  HE
EXPRESSED THE FEAR THAT IF CONGRESS ABOLISHED THE 15% LEVEL CUT, WAGE
BOARDS WOULD AT ONCE TAKE ACTION TO REDUCE EXISTING WAGE SCALES.  HE
PROPOSED A PROVISION WHICH WOULD PROHIBIT REDUCTION OF WAGES BELOW THE
WAGE SCALES WHICH WERE IN EFFECT JUNE 1, 1932, BUT SUGGESTED NO
PROVISION CONCERNING HOURS OF WORK OR OVERTIME PAY.  THE DRAFT HE
SUBMITTED WAS NOT EMBODIED IN THE BILL AS REPORTED. 

SENATOR THOMAS OFFERED THE PRESENT SEC. 23 ON THE FLOOR OF THE
SENATE, STATING MERELY  FN7 "THIS AMENDMENT IS OFFERED TO HELP THE
EMPLOYEES IN THE NAVY YARDS, THE ARSENALS, THE PANAMA CANAL ZONE, THE
GOVERNMENT PRINTING OFFICE, AND THE BUREAU OF ENGRAVING AND PRINTING. 
IT SIMPLY PROPOSES TO PUT THEM BACK ON THE SAME STATUS THEY OCCUPIED IN
JULY OF 1932  ...  THE AMENDMENT ADOPTED THIS AFTERNOON RESTORES THEIR
PAY CUT, IT IS TRUE, PROVIDED THAT AMENDMENT REMAINS IN THE LAW.  THIS
AMENDMENT PROPOSES TO GIVE THE EMPLOYEES OF THESE SEVERAL BUREAUS AN
INCREASE IN THEIR PAY EVEN THOUGH THEY DO NOT HAVE TO WORK AN INCREASED
NUMBER OF HOURS.  AT THE PRESENT TIME THEY WORK 40 HOURS AND GET 44
HOURS' PAY.  UNDER THE AMENDMENT IT IS POSSIBLE THAT THE BOARD THAT HAS
CONTROL OF THESE EMPLOYEES WILL LET THEM WORK 40 HOURS AND THEY WILL
POSSIBLY GET 48 HOURS' PAY, PROVIDED THEY GET AN INCREASE OF THEIR
HOURLY PAY." 

THE AMENDMENT WAS ADOPTED WITHOUT FURTHER REFERENCE TO IT IN EITHER
HOUSE OF CONGRESS.  THE PRESIDENT VETOED THE BILL, WHICH WAS PASSED
OVER HIS VETO.  ON THAT OCCASION A SENATOR INQUIRED WHETHER CERTAIN
LANGUAGE IN THE PRESIDENT'S VETO MESSAGE REFERRED TO THE PROVISIONS OF
SEC. 23 AND THE REPLY WAS THAT THE SENATOR INTERROGATED DID NOT KNOW
WHETHER THIS WAS SO.  WE SHALL SHORTLY SEE THAT THE SECTION DID
SUBSTANTIALLY MORE THAN SENATOR THOMAS STATED IN HIS BRIEF
EXPLANATION. 

PRIOR TO THE EFFECTIVE DATE OF THE ACT, THE RESPONDENT'S REGULAR
HOURS OF WORK WERE 48 PER WEEK, THOUGH HE WAS OFTEN REQUIRED TO WORK
52.  SHORTLY AFTER SEC. 23 BECAME LAW, THE GOVERNOR OF THE PANAMA CANAL
REQUESTED THE COMPTROLLER GENERAL TO DECIDE WHETHER THE SECTION APPLIED
TO EMPLOYES OF THE CANAL AND WHETHER IT REQUIRED PAYMENT OF OVERTIME TO
CERTAIN CLASSES OF EMPLOYES, INCLUDING THE CLASS TO WHICH RESPONDENT
BELONGED.  THE COMPTROLLER GENERAL RULED THAT THE SECTION WAS
APPLICABLE TO EMPLOYES PAID BY THE MONTH AS WELL AS TO THOSE PAID BY
THE HOUR.  FN8  HE DID NOT DIRECTLY RULE ON THE RIGHT OF MONTHLY
EMPLOYES TO BE PAID FOR OVERTIME BUT HIS OPINION INDICATES THE VIEW
THAT THEY WERE NOT TO BE SO PAID SINCE HE STATED:  "...  NO CHANGE IN
THE MONTHLY OR ANNUAL RATE OF COMPENSATION OTHER THAN THAT REQUIRED TO
PAY A RATE NOT LOWER THAN THE RATE PER ANNUM OR PER MONTH PAID JUNE 1,
1932, LESS ANY APPLICABLE PERCENTAGE REDUCTIONS, WOULD BE AUTHORIZED. 
THAT IS TO SAY, THEY ARE TO RECEIVE THE SAME MONTHLY OR ANNUAL
COMPENSATION ALTHOUGH THEIR REGULAR HOURS OF DUTY MAY BE REDUCED." 

NOTWITHSTANDING THIS RULING, THE GOVERNOR ATTEMPTED TO REDUCE THE
MONTHLY EMPLOYES' COMPENSATION BY PUTTING THEM ON AN HOURLY BASIS. 
THIS HE DID BY DIVIDING THE MONTHLY SALARY PAID JUNE 1, 1932, BY 224,
THE NUMBER OF HOURS HE ESTIMATED THEY WORKED PER MONTH MADE UP OF EIGHT
HOURS PER DAY FOR SIX DAYS PER WEEK, SIXTEEN HOURS PER MONTH FOR
OCCASIONAL OVERTIME AND AN ALLOWANCE FOR OCCASIONAL WORK ON SUNDAYS AND
HOLIDAYS.  THIS COMPUTATION SHOWED THEY HAD BEEN WORKED 52 HOURS PER
WEEK.  HAVING THUS ASCERTAINED WHAT HE DEEMED THEIR HOURLY WAGES, HE
ADDED 20% TO THE HOURLY WAGE, SO THAT THEY WOULD RECEIVE THE SAME
AMOUNT FOR A 40-HOUR WEEK AS THEY WOULD THERETOFORE HAVE RECEIVED FOR A
48-HOUR WEEK, DESPITE THE FACT THAT THEY HAD BEEN WORKING AND HAD BEEN
PAID FOR MORE THAN 48 HOURS ACCORDING TO HIS COMPUTATION OF THEIR PRIOR
HOURLY EARNINGS.  THE NET RESULT WAS SUBSTANTIALLY TO REDUCE THEIR
MONTHLY EARNINGS.  AFTER COMPLAINT BY THE EMPLOYES, THE GOVERNOR
SUBMITTED HIS ACTION TO THE COMPTROLLER GENERAL AND REQUESTED
RECONSIDERATION OF THE EARLIER DECISION.  FN9  THAT OFFICIAL REAFFIRMED
HIS PRIOR DECISION AND DISAPPROVED THE RECOMPUTATION OF MONTHLY WAGES
WHICH THE GOVERNOR HAD ADOPTED.  HE RULED THAT THE PROPER PROCEDURE WAS
"TO CONTINUE THE PAYMENT OF THE SAME MONTHLY RATES OF COMPENSATION EVEN
THOUGH THERE MAY HAVE BEEN A REDUCTION IN THE NUMBER OF HOURS PER WEEK
AND NO OVERTIME COMPENSATION IS AUTHORIZED," AND ADDED THAT "THIS IS
THE GENERAL RULE THAT HAS BEEN ADOPTED UNDER THE 40-HOUR WEEK STATUTORY
PROVISION FOR ALL EMPLOYEES PAID ON A MONTHLY OR ANNUAL BASIS."  THE
GOVERNOR'S SUBMISSION AND THE COMPTROLLER GENERAL'S RULING MAKE IT
CLEAR THAT BOTH UNDERSTOOD THAT EMPLOYES PAID ON A MONTHLY BASIS COULD
NOT BE REGULARLY WORKED MORE THAN 40 HOURS A WEEK.  SEVERAL PASSAGES IN
HIS DECISIONS ALSO INDICATE THAT THE COMPTROLLER GENERAL WAS OF OPINION
THAT MONTHLY EMPLOYES SHOULD NOT BE PAID OVERTIME.  THE RULINGS WERE
DEFINITELY THAT EMPLOYES WHOSE WEEKLY WAGES WOULD BE REDUCED BY
REDUCING THEIR WORK HOURS MUST HAVE THOSE WAGES RESTORED TO THE 1932
WAGE LEVEL, AND THAT EMPLOYES WHO HAD NOT HAD THEIR WEEKLY WAGES CUT
BECAUSE THEY WERE PAID BY THE MONTH AND WERE WORKED 52 HOURS PER WEEK
SHOULD NOT HAVE THEIR WAGES CUT AS A RESULT OF SEC. 23 BY THE REDUCTION
OF THEIR WORK WEEK TO 40 HOURS. 

APPARENTLY RELYING ON THE COMPTROLLER GENERAL'S STATEMENT THAT
EMPLOYES ON A MONTHLY WAGE BASIS WERE NOT ENTITLED TO OVERTIME, THE
GOVERNOR CONTINUED TO WORK THE RESPONDENT 48 HOURS A WEEK BUT PAID HIM
NO OVERTIME.  THIS IN SPITE OF HIS KNOWLEDGE THAT THE 40-HOUR WEEK
LIMITATION WAS ALSO APPLICABLE TO THE RESPONDENT IF OTHER PARTS OF SEC.
23 WERE SO APPLICABLE.  IN HIS SECOND SUBMISSION TO THE COMPTROLLER
GENERAL HE STATED HIS UNDERSTANDING OF THE LATTER'S DECISION THAT
MONTHLY EMPLOYES COULD NOT BE WORKED MORE THAN 40 HOURS A WEEK.  THERE
IS NO EVIDENCE THAT THE QUESTION OF THE LEGALITY OF WORKING THE
RESPONDENT OVERTIME WITHOUT PAYING HIM FOR IT WAS EVER SUBMITTED TO THE
COMPTROLLER GENERAL. 

IT SEEMS EVIDENT THAT THE GOVERNOR'S ACTION CANNOT BE JUSTIFIED.  IF
SEC. 23 APPLIED IN THE CASE OF THE RESPONDENT, HIS WORK WEEK SHOULD
HAVE BEEN 40 HOURS.  IF, IN SPITE OF SEC. 23, HIS MONTHLY STIPEND
COVERED EVERY DAY AND EVERY HOUR OF THE MONTH WHETHER SERVICE WAS
RENDERED OR NOT, AS THE COMPTROLLER GENERAL HAD SAID, SO THAT
RESPONDENT COULD NOT BE PAID FOR OVERTIME, THEN HE SHOULD NOT HAVE BEEN
REGULARLY WORKED OVERTIME. 

WITH THIS OUTLINE OF THE SITUATION, WE ARE BROUGHT TO A CONSIDERATION
OF THE GOVERNMENT'S CONTENTION THAT SEC. 23 HAS NO APPLICATION TO THE
RESPONDENT'S COMPENSATION. 

WE TURN FIRST TO THE SUGGESTION THAT THE EXPRESSIONS "WEEKLY
COMPENSATION" AND "WEEKLY EARNINGS" CONTROL ALL OF THE PROVISIONS OF
THE SECTION AND THAT HENCE BOTH THE AFFIRMATIVE PROVISIONS AND THE
PROHIBITION CONTAINED IN THE PROVISO APPLY ONLY TO THOSE EMPLOYES WHO
RECEIVE WEEKLY WAGES.  AS THE RECORD, HOWEVER, FAILS TO INDICATE THAT
ANY OF THE GOVERNMENT EMPLOYES WERE PAID BY THE WEEK, IT IS SAID THAT
THE TERM "WEEKLY" WAS USED AS A METHOD OF ADJUSTING THE WAGES OF PER
HOUR OR PER DIEM EMPLOYES BECAUSE A 40-HOUR WORK WEEK COULD EASILY BE
CALCULATED IN THEIR CASE AS THE MEASURE OF WEEKLY WORK AND COMPENSATION
WHEREAS IT COULD NOT SO READILY BE APPLIED TO MONTHLY EMPLOYES.  BUT WE
THINK THIS SUGGESTION DOES NOT COMPORT EITHER WITH THE PROVISIONS OR
THE OBVIOUS PURPOSE OF THE LEGISLATION.  THE SECTION COMMANDED NOT ONLY
THAT WAGES REDUCED AS A RESULT OF FURLOUGHS AND UNCOMPENSATED OVERTIME
SHOULD BE REESTABLISHED BUT ALSO THAT, FOR THE FUTURE, SUCH WAGES
SHOULD BE MAINTAINED AT THE JUNE 1, 1932, LEVEL, SUBJECT ONLY TO THE
APPLICABLE PERCENTAGE REDUCTIONS PROVIDED BY THE ECONOMY ACTS.  IT
SOUGHT TO FORBID INDIRECT REDUCTION OF WAGES BY THE PROVISION THAT A
WORK WEEK SHOULD CONSIST OF 40 HOURS AND THAT OVERTIME, AT ONE AND ONE
HALF THE REGULAR HOURLY PAY, SHOULD BE PAID FOR ANY HOURS WORKED BEYOND
THAT WEEKLY LIMIT.  AS THE TEST OF WHAT SHOULD CONSTITUTE OVERTIME WAS
MORE CONVENIENTLY CALCULATED BY USING A WORK WEEK, AND THE HOURS WORKED
DURING ANY WEEK, IT WAS QUITE NATURAL THAT CONGRESS SHOULD USE THE
PHRASES "WEEKLY COMPENSATION" AND "WEEKLY EARNINGS" IN SETTING A FLOOR
UNDER WAGES.  FN10    IF THE GOVERNMENT IS RIGHT, SEC. 23 HAD NO
APPLICATION TO RESPONDENT AND THOSE IN LIKE CASE AND THE GOVERNOR COULD
HAVE MAINTAINED A 52-HOUR WORK WEEK AT THE OLD RATE OF PAY OR COULD
HAVE CUT THE WORK WEEK WITH A CORRESPONDING REDUCTION IN PAY.  THE
RESULT WOULD BE, AS THE COURT BELOW POINTED OUT, THAT AN ACT OF
CONGRESS, ON ITS FACE APPLICABLE TO ALL EMPLOYES, INCLUDING MONTHLY
EMPLOYES, WHICH DECLARED THAT THE WEEKLY WAGES OF EMPLOYES "SHALL BE
REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN" THE 1932 RATE
WOULD FOR THE FIRST TIME HAVE AUTHORIZED THE CUTTING OF THE WAGES OF
MONTHLY EMPLOYES BELOW THE 1932 LEVEL WHILE THE WAGES OF ALL OTHERS
WERE BEING RESTORED TO THAT LEVEL.  AS WE HAVE SEEN, THE COMPTROLLER
GENERAL RULED THAT SUCH A CUT IN RESPONDENT'S PAY WAS "IN CONTRAVENTION
OF THE PLAIN TERMS OF THE STATUTE." 

WE ARE CLEAR THAT THE COMPTROLLER GENERAL WAS RIGHT IN RULING THAT
THE STATUTE APPLIED NOT ONLY TO PER DIEM OR HOURLY EMPLOYES BUT ALSO TO
EMPLOYES PAID ON A MONTHLY BASIS, SUCH AS RESPONDENT, WHOSE
COMPENSATION WAS FIXED BY A WAGE BOARD.  WE ARE ALSO CLEAR THAT, ON THE
FACE OF THE STATUTE, IF THE GOVERNOR, IN THE TEETH OF THE STATUTORY
PROVISION, WORKED SUCH EMPLOYEES MORE THAN 40 HOURS A WEEK, THE
OVERTIME PROVISION OF SEC. 23 REQUIRED PAYMENT AT ONE AND ONE-HALF
STRAIGHT TIME PAY FOR THE EXTRA HOURS WORKED. 

THE GOVERNMENT SEEKS TO AVOID SUCH A CONSTRUCTION OF THE ACT BY
INVOKING ASSERTED ADMINISTRATIVE PRACTICE AND LEGISLATIVE HISTORY.  IT
RELIES HEAVILY ON THE STATEMENT MADE TO THE SUBCOMMITTEE, TO WHICH WE
HAVE HERETOFORE REFERRED.  WITH RESPECT TO THIS STATEMENT, WE THINK IT
ENOUGH TO SAY THAT THE SPOKESMAN WAS COMPLAINING ABOUT DISCRIMINATIONS
AGAINST EMPLOYES PAID BY THE DAY OR THE HOUR BUT HE NOWHERE SUGGESTS
THE PROPRIETY OF DISTINGUISHING BETWEEN SUCH EMPLOYES AND THOSE PAID ON
A MONTHLY BASIS BUT WORKED MORE THAN 40 HOURS PER WEEK.  HE ADVOCATES
SETTING THE JUNE 1, 1932, STANDARD AS A MINIMUM SUBJECT ONLY TO
PERCENTAGE REDUCTIONS PROVIDED BY THE ECONOMY ACT.  HE ENVISAGES THE
FACT THAT IF THE WORK WEEK IS REDUCED TO 40 HOURS AND THE JUNE 1932
STANDARD IS THUS REESTABLISHED, THE RESULT WILL BE AN INCREASE IN WAGES
TO THE EMPLOYES CONCERNED.  THE CONSIDERATIONS OF EQUITY ON WHICH HE
RELIES APPLY QUITE AS MUCH TO EMPLOYES PAID BY THE MONTH AS TO THOSE
PAID BY THE DAY OR HOUR.  MOREOVER, AS ABOVE STATED, THE DRAFT HE
SUBMITTED WAS NOT ADOPTED.  ON THE CONTRARY, ONE DIFFERENTLY WORDED
BECAME SEC. 23 OF THE STATUTE. 

THE GOVERNMENT NEXT RELIES ON THE FACT THAT, PRIOR TO THE ADOPTION OF
SEC. 23, NO OVERTIME WAS PAID TO EMPLOYES WHO WERE ON A MONTHLY OR
ANNUAL BASIS.  BUT, AS WE SHALL SEE, THE FULL APPLICATION OF THE
PRINCIPLE OF A WORK WEEK LIMITED TO SPECIFIED HOURS, AND PAYMENT OF
OVERTIME FOR EXTRA HOURS, WAS GRADUALLY ADOPTED BY THE CONGRESS, AND
THE FACT THAT THE OLD PRACTICE WAS ABOLISHED PIECEMEAL CAN HAVE LITTLE
WEIGHT IN DETERMINING WHETHER, AS RESPECTS THE EMPLOYES EMBRACED IN ITS
TERMS, SEC. 23 ABOLISHED THE DISTINCTION AMONGST THOSE EMBRACED IN
TRADES AND OCCUPATIONS WHOSE COMPENSATION WAS FIXED BY WAGE BOARDS. 
MOREOVER, THE SECTION ESSAYED TO DEAL ONLY WITH A SPECIAL CLASS OF
EMPLOYES WHOSE WORKING CONDITIONS ARE MORE NEARLY COMPARABLE TO THOSE
OF MEN EMPLOYED IN PRIVATE INDUSTRY.  THEY MAY, THEREFORE, HAVE BEEN
VALID REASON FOR ESTABLISHING, AS RESPECTS ALL OF THESE EMPLOYES, A
DIFFERENT RULE FROM THAT GENERALLY FOLLOWED IN GOVERNMENT DEPARTMENTS. 

THE GOVERNMENT ALSO RELIES ON THE PRIOR PRACTICE IN THE CANAL ZONE,
BUT WE THINK THIS INCONCLUSIVE.  BY THE ACT OF AUGUST 24, 1912,  FN11
THE PRESIDENT WAS EMPOWERED TO APPOINT EMPLOYES OF THE CANAL ZONE.  THE
ACT PROVIDED THAT "THE COMPENSATION OF SUCH PERSONS SHALL BE FIXED BY
THE PRESIDENT, OR BY HIS AUTHORITY, UNTIL SUCH TIME AS CONGRESS MAY BY
LAW REGULATE THE SAME" (SEC. 4).  BY EXECUTIVE ORDER OF FEBRUARY 2,
1914, THE PRESIDENT ESTABLISHED OVERTIME FOR PER DIEM AND HOURLY
WORKERS BUT FORBADE OVERTIME FOR THOSE PAID ON A MONTHLY OR ANNUAL
BASIS.  CONGRESS DID UNDOUBTEDLY LEGISLATE FURTHER ON THE SUBJECT IN
SEC. 23 OF THE ACT OF 1934.  THE ADMINISTRATIVE PRACTICE PRIOR TO THE
ADOPTION OF THE SECTION IS, THEREFORE, OF NO MOMENT. 

THE GOVERNOR'S ATTEMPT TO REDUCE THE COMPENSATION OF THE RESPONDENT
BY WORKING HIM OVERTIME AND NOT PAYING HIM FOR HIS OVERTIME, IN THE
TEETH OF THE STATUTE AND THE COMPTROLLER GENERAL'S RULING, CERTAINLY
CANNOT BE ACCORDED WEIGHT IN CONSTRUING THE STATUTE. 

THE GOVERNMENT PRODUCED AT THE TRIAL OF THE CASE IN THE COURT BELOW
CERTAIN LETTERS FROM THE NAVY DEPARTMENT, THE GOVERNMENT PRINTING
OFFICE, AND THE BUREAU OF ENGRAVING AND PRINTING OF THE TREASURY
DEPARTMENT STATING THAT THEY HAD INTERPRETED SEC. 23 AS APPLYING ONLY
TO PER DIEM AND HOURLY EMPLOYES, AND THAT NO OVERTIME HAD BEEN PAID TO
EMPLOYES WORKING ON A MONTHLY OR YEARLY BASIS.  THESE LETTERS DO NOT
STATE, HOWEVER, THAT THESE BRANCHES REGULARLY WORKED SUCH EMPLOYES
OVERTIME, AS DID THE GOVERNOR OF THE CANAL ZONE, WITHOUT PAYING FOR
OVERTIME WORK.  SUCH EVIDENCE AS THERE IS IN THE RECORD WOULD SEEM TO
INDICATE THE CONTRARY. 

THE SECRETARY OF THE NAVY SUBMITTED CERTAIN QUESTIONS RESPECTING SEC.
23 TO THE COMPTROLLER GENERAL IMMEDIATELY AFTER THE ENACTMENT OF THE
EXCESS OF 40 HOURS A WEEK "BECAUSE OF AN EXTRAORDINARY EMERGENCY"
SHOULD BE PAID OVERTIME.  THE COMPTROLLER ANSWERED IN THE NEGATIVE,
REFERRING TO HIS DECISION RENDERED THE GOVERNMENT PRINTING OFFICE  FN12
IN WHICH HE SAID THAT THE REGULAR HOURS OF WORK OF EMPLOYES ON AN
ANNUAL BASIS WERE REQUIRED BY SEC. 23 TO BE FIXED AT NOT TO EXCEED 40
PER WEEK.  IN THE SAME OPINION RENDERED TO THE PUBLIC PRINTER HE HAD
RULED THAT SUCH EMPLOYES WERE NOT ENTITLED TO OVERTIME.  THERE IS NO
EVIDENCE THAT THE SECRETARY OF THE NAVY OR THE PUBLIC PRINTER CONCEIVED
THAT THEY COULD WORK PER ANNUM AND PER MONTH EMPLOYES MORE THAN 40
HOURS A WEEK WITHOUT EXTRA COMPENSATION EXCEPT IN CASES OF
EXTRAORDINARY EMERGENCY OR THAT THEY EVER PURSUED A PRACTICE LIKE THAT
OF THE GOVERNOR OF THE PANAMA CANAL.  IT WOULD SEEM, THEREFORE, THAT
THE HOURS OF MONTHLY PAID MECHANICAL EMPLOYES IN THE DEPARTMENTS IN
QUESTION WERE REDUCED TO 40 WITHOUT ANY PAY CUT.  SUCH ACTION WOULD BE
IN ACCORDANCE WITH THE RULINGS OF THE COMPTROLLER GENERAL.  THUS THE
ADMINISTRATIVE CONSTRUCTION OF THE GOVERNOR SEEMS TO STAND ALONE AND IN
CONTRADICTION TO THAT OF OTHER HEADS OF DEPARTMENTS AND OFFICES OF THE
GOVERNMENT, AND, IN THIS RESPECT, WORKED A DISCRIMINATION AGAINST THE
RESPONDENT AND THOSE IN HIS CLASS AS CONTRASTED WITH OTHER EMPLOYES WHO
STOOD IN THE SAME RELATION.  CERTAIN IT IS THAT THE COMPTROLLER GENERAL
NEVER RULED THAT THE STANDARD OF 40 HOURS A WEEK WITH OVERTIME COULD BE
DISREGARDED IN PRACTICE. 

FINALLY, THE GOVERNMENT ARGUES THAT RELATED LEGISLATION INDICATES
CONGRESS DID NOT INTEND SEC. 23 TO APPLY TO EMPLOYES PAID BY THE MONTH
OR BY THE YEAR.  WE THINK, HOWEVER, THAT, ON ANALYSIS, THE COURSE OF
LEGISLATION, CONSIDERED AS A WHOLE, FAILS TO SUSTAIN THE CONTENTION. 
AS WE HAVE SAID, ADOPTION OF THE PRINCIPLE OF LIMITATION OF WORKING
TIME AND EXTRA PAY FOR OVERTIME, IN RESPECT OF GOVERNMENT EMPLOYMENT,
HAS BEEN OF GRADUAL DEVELOPMENT. 

AS EARLY AS 1883 CONGRESS AUTHORIZED THE PUBLIC PRINTER TO PAY EXTRA
PRICES IN ACCORDANCE WITH THE CUSTOMS OF THE TRADE AND THE JUSTICE OF
THE CASE FOR EXTRA WORK ORDERED IN EMERGENCIES, PERFORMED ON SUNDAYS OR
LEGAL HOLIDAYS OR AT NIGHT, IF PERFORMED BY OTHER THAN REGULAR NIGHT
FORCES.  FN13  IT IS ASSUMED THAT THE EMPLOYES EMBRACED IN THIS
LEGISLATION WERE PAID PER DIEM OR PER HOUR.  THE PROVISION FOR PAYMENT
OF OVERTIME IN THE PUBLIC PRINTER'S OFFICE HAS BEEN CONTINUED IN THE
SUCCESSIVE STATUTES.  FN14 

IN 1888 CONGRESS PRESCRIBED AN 8-HOUR DAY WITH PAYMENT FOR OVERTIME
FOR LETTER CARRIERS OF THE UNITED STATES POSTAL SERVICE,  FN15  WHO
RECEIVE ANNUAL SALARIES. 

IN 1911 PROVISION WAS MADE FOR OVERTIME PAY OF EMPLOYES OF THE
CUSTOMS SERVICE REQUIRED BY THE NATURE OF THEIR SERVICE TO WORK AFTER 5
P.M.  FN16  SUCH OVERTIME PAY WAS TO BE REIMBURSED THE GOVERNMENT BY
THE STEAMSHIP COMPANIES WHOSE BUSINESS REQUIRED SUCH SERVICES. 

IN 1919 THE SECRETARY OF AGRICULTURE WAS AUTHORIZED TO PAY EMPLOYES
OF THE BUREAU OF ANIMAL INDUSTRY, EMPLOYED IN INDUSTRIAL ESTABLISHMENTS
IN THE INSPECTION OF MEAT, FOR OVERTIME WORK.  FN17  HERE AGAIN THE
GOVERNMENT WAS TO BE REIMBURSED BY THE ESTABLISHMENT WHICH REQUIRED THE
WORKING OF OVERTIME, BUT THE COMPENSATION PAID THE INSPECTORS WAS ON AN
ANNUAL SALARY BASIS. 

IN 1940 AN ACT WAS PASSED  FN18  MAKING THE REGULAR WORKING HOURS OF
THE NAVY DEPARTMENT AND THE COAST GUARD, AND THEIR FIELD SERVICES
"EIGHT HOURS A DAY OR FORTY HOURS PER WEEK" DURING THE PERIOD OF THE
NATIONAL EMERGENCY.  THE ACT SET A DIFFERENT METHOD OF PAYING THE
OVERTIME TO MONTHLY, PER DIEM, HOURLY AND PIECEWORK EMPLOYES THAN THAT
APPLIED TO EMPLOYES PAID BY THE YEAR, BUT IT IS TO BE NOTED THAT THE 40
HOUR WEEK AND THE OVERTIME RATE OF ONE AND ONE-HALF TIMES THE REGULAR
RATE WAS APPLIED TO MONTHLY EMPLOYES. 

THE GOVERNMENT LAYS GREAT STRESS ON A REPORT OF THE COMMITTEE ON
NAVAL AFFAIRS REPORTING THIS LEGISLATION TO THE SENATE.  FN19  IN THAT
REPORT THE COMMITTEE SAID, REFERRING TO THE 40-HOUR PER WEEK LIMIT, AND
THE PAYMENT FOR OVERTIME:  "IN THIS REGARD, THE PROVISION FOR THE
PAYMENT OF COMPENSATION (FOR OVERTIME) TO PER ANNUM AND PER MONTH
EMPLOYEES IS A DEPARTURE FROM THE PRACTICE HERETOFORE FOLLOWED...."  A
SIMILAR STATEMENT WAS MADE IN THE HOUSE REPORT.  FN20  THE DIFFICULTY
THAT ARISES IN GIVING WEIGHT TO THESE STATEMENTS OF THE CONGRESSIONAL
COMMITTEES IS THAT THE FACTS ALREADY RECITED SHOW THE REPORTS WERE
WRONG IN FACT AND APPARENTLY WERE BASED UPON AN INACCURATE STATEMENT
WHICH WAS CREDITED BY THE COMMITTEES. 

IN THE SAME YEAR CONGRESS PASSED ANOTHER ACT ON THE SUBJECT OF
OVERTIME.  FN21  IN THIS IT WAS PROVIDED: 

"NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, COMPENSATION FOR
EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK
COMPUTED AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR
RATE IS HEREBY AUTHORIZED TO BE PAID AT SUCH PLACES AND TO SUCH
MONTHLY, PER DIEM, HOURLY, AND PIECEWORK EMPLOYEES OF THE FIELD
SERVICES OF THE WAR DEPARTMENT AND THE FIELD SERVICES OF THE PANAMA
CANAL WHOSE WAGES ARE SET BY WAGE BOARDS OR OTHER WAGE FIXING
AUTHORITIES,  ..." 

SUCH LIGHT AS WE GAIN FROM THE DISCUSSION IN CONGRESS INDICATES THAT
CONGRESS ALREADY UNDERSTOOD THAT OVERTIME WAS PAYABLE TO CERTAIN
EMPLOYES OF THE PANAMA CANAL BY VIRTUE OF SEC. 23 OF THE ACT OF 1934,
BUT THAT IT WAS DESIRED TO EXTEND THE LIMITATION OF HOURS PER WEEK AND
THE PAYMENT OF OVERTIME TO EMPLOYES OF THE FIELD SERVICES OF THE ARMY
AND THE FIELD SERVICES OF THE PANAMA CANAL.  THUS, IN THE DEBATE, MR.
RAMSPECK, OF THE HOUSE COMMITTEE ON CIVIL SERVICE, SAID.  FN22 

"THE SECRETARY OF WAR AND THE ASSISTANT SECRETARY OF WAR  ...  SAY
THAT THEY HAVE THE LEGAL AUTHORITY NOW TO PAY OVERTIME TO CERTAIN
EMPLOYEES OF THE WAR DEPARTMENT IN THE ARSENALS AND AT THE PANAMA
CANAL, BUT AS TO OTHERS THEY HAVE NOT THIS AUTHORITY AND THIS CREATES A
BAD ADMINISTRATIVE SITUATION.  THEY HAVE RECOMMENDED THIS BILL, WHICH
HAS PASSED THE SENATE, AND IT IS MY UNDERSTANDING WE HAVE GIVEN THE
SAME AUTHORITY TO THE NAVY DEPARTMENT AS TO THE NAVY YARDS." 

FINALLY, IN 1942, BY JOINT RESOLUTION, CONGRESS PROVIDED FOR OVERTIME
PAY FOR GOVERNMENT EMPLOYES GENERALLY  FN23  INCLUDING EMPLOYES OF
GOVERNMENT-OWNED OR CONTROLLED ORGANIZATIONS AND THOSE OF THE DISTRICT
OF COLUMBIA WHOSE POSITIONS ARE SUBJECT TO THE CLASSIFICATION ACT OF
1923.  THE RESOLUTION EMBODIES A PROVISO EXCLUDING "THOSE WHOSE WAGES
ARE FIXED ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME IN
ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR
ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE,  ..."  FROM THIS
PROVISO THE GOVERNMENT ARGUES THAT CONGRESS BELIEVED THAT UP TO THAT
TIME THOSE WHOSE MONTHLY COMPENSATION WAS FIXED BY WAGE BOARDS HAD NOT
BEEN ENTITLED TO OVERTIME AND THAT THE RESOLUTION GRANTED IT TO THEM
FOR THE FIRST TIME.  WHATEVER CONGRESS MAY HAVE THOUGHT OR INTENDED IN
RESPECT OF THE PROVISO, WE CANNOT IGNORE THE FACT THAT SEC. 23 OF THE
ACT OF MARCH 28, 1934, ON ITS FACE, APPLIED TO SUCH MONTHLY EMPLOYES,
THAT THE COMPTROLLER HAD SO RULED, AND THAT, SO FAR AS APPEARS, THE
DEPARTMENTS CONCERNED HAD ACTED WITH THAT UNDERSTANDING, SAVE ONLY THE
GOVERNOR OF THE PANAMA CANAL WHO, ALTHOUGH SO ADVISED, HAD ACTED IN THE
TEETH OF THE STATUTE. 

THE SAME MISAPPREHENSION WITH RESPECT TO THE EFFECT AND
ADMINISTRATION OF THE ACT OF 1934 SEEMS TO HAVE PREVAILED WHEN THE WAR
OVERTIME PAY ACT OF 1943  FN24  WAS ADOPTED.  THAT ACT, BY A SWEEPING
PROVISION, GRANTED OVERTIME PAY TO ALL CIVIL EMPLOYES OF THE GOVERNMENT
AND ALL EMPLOYES OF GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, EXCEPT
THOSE IN THE GOVERNMENT PRINTING OFFICE AND THE TENNESSEE VALLEY
AUTHORITY.  IT SPECIFICALLY INCLUDED OFFICERS AND EMPLOYES WHOSE WAGES
ARE FIXED ON A MONTHLY OR YEARLY BASIS BY WAGE BOARDS OR SIMILAR
AUTHORITIES, AND EXCLUDED EMPLOYES WHOSE WAGES ARE FIXED ON A DAILY OR
HOURLY BASIS BY WAGE BOARDS. 

WE THINK THIS SUMMARY OF THE LEGISLATION ON THE SUBJECT IS NOT
CONCLUSIVE OR EVEN STRONGLY PERSUASIVE AS AN AID TO THE CONSTRUCTION OF
THE ACT UNDER CONSIDERATION AS OF THE TIME WHEN CONGRESS ADOPTED IT.
IT SEEMS THAT THERE WAS NO VERY CLEAR AND GENERAL POLICY WITH RESPECT
TO THE PAYMENT OF OVERTIME UNTIL THE EXIGENCIES OF THE WAR CALLED FOR
COMPENSATION OF GOVERNMENT EMPLOYES AS A CLASS ON A BASIS SIMILAR TO
THAT ADOPTED IN PRIVATE INDUSTRY.  WHEN THE TIME CAME TO MAKE SUCH
GENERAL PROVISION, THE MORE OR LESS HAPHAZARD DEALING WITH THE SUBJECT
THERETOFORE SEEMS NOT TO HAVE BEEN CLEARLY IN MIND.    WE CONCLUDE THAT
THE COURT OF CLAIMS PROPERLY HELD THAT SEC. 23 APPLIES IN RESPONDENT'S
CASE AND THAT HE IS ENTITLED TO RECOVER FOR THE OVERTIME HE WAS
REQUIRED TO WORK. 

WE REACH THEN THE QUESTION WHETHER THE COURT ADOPTED THE CORRECT
METHOD OF CALCULATING THE OVERTIME COMPENSATION.  THE RESPONDENT
SUBMITTED A COMPUTATION WHEREBY HE MULTIPLIED HIS MONTHLY SALARY BY
TWELVE AND DIVIDED THE RESULT BY FIFTY-TWO TO ASCERTAIN HIS WEEKLY
SALARY.  HE DIVIDED THE WEEKLY SALARY BY FIVE TO OBTAIN HIS DAILY PAY
FOR AN 8-HOUR DAY FOR EACH WEEK THAT HE HAD WORKED A SIXTH DAY.  HE
TOOK THE NUMBER OF WEEKS IN WHICH HE HAD WORKED A SIXTH DAY AND
MULTIPLIED THAT NUMBER BY THE ASCERTAINED DAILY WAGE, PLUS ONE-HALF. 
THE GOVERNMENT ARGUED IN THE COURT BELOW, AND ARGUES IN THIS COURT,
THAT THE MONTHLY WAGE OF THE RESPONDENT COVERED EVERY DAY OF THE MONTH
BECAUSE THE GOVERNMENT HIRED HIS FULL TIME.  AS A RESULT, IT IS SAID,
HIS DAILY PAY SHOULD BE ONE-THIRTIETH OF HIS MONTHLY PAY.  FN25  IN
THIS VIEW, HE HAS BEEN PAID STRAIGHT TIME NOT ONLY FOR THE FIVE DAYS,
OR THE FORTY HOURS, HE SHOULD HAVE BEEN WORKED UNDER SEC. 23 BUT ALSO
FOR THE SIXTH DAY HE WAS REQUIRED TO SERVE.  THE RESULT IS THAT HE
SHOULD BE GRANTED ONLY ADDITIONAL HALF PAY FOR THE SIXTH DAY OF EACH
WEEK.  BUT, ACCORDING TO THIS CONTENTION, THE RESPONDENT WILL ALREADY
HAVE BEEN OVERPAID FOR, ACCORDING TO THE ARGUMENT, HE HAS BEEN PAID
STRAIGHT TIME FOR THE SEVENTH DAY OF EACH WEEK ALTHOUGH HE ONLY WORKED
SIX DAYS AND HAS, THEREFORE, RECEIVED ADDITIONAL OVERTIME PAY FOR THE
SIXTH DAY.  THE COURT BELOW APPROVED THE RESPONDENT'S METHOD OF
RECKONING AND WE THINK ITS DECISION CORRECT.  AFTER THE ADOPTION OF
SEC. 23 THE RESPONDENT WAS IN EFFECT HIRED FOR A WORK WEEK OF FORTY
HOURS, OR A FIVE-DAY WEEK, AND HIS DAILY WAGE WAS TO BE DETERMINED ON
THAT BASIS.  HE HAS NOT BEEN PAID FOR THE SIXTH DAY OF EACH WEEK AND
SHOULD RECOVER STRAIGHT TIME AND ONE-HALF FOR THE SIXTH DAY.  THIS
COMPUTATION ACCOMPLISHES THIS, AND THERE IS AUTHORITY FOR RESORT TO IT.
FN26 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF MARCH 28, 1934, C. 102, 48 STAT. 522; 5 U.S.C. 673C. 

FN2  101 CT. CLS. 237. 

FN3  42 STAT. 1488(5 U.S.C. 661, ET SEQ.). 

FN4  C. 390, 37 STAT. 561, 48 U.S.C. 1305. 

FN5  47 STAT. 382. 

FN6  48 STAT. 8, 13. 

FN7  78 CONG. REC. 2977. 

FN8  SEE 14 COMP. GEN. 158. 

FN9  SEE 14 COMP. GEN. 165. 

FN10  COMPARE OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572; WALLING V.
HELMERICH & PAYNE, 323 U.S. 37; ST. JOHN V. BROWN, 38 F.SUPP.  385;
ALLEN V. MOE, 39 F.SUPP.  5; NELSON V. ST. JOSEPH & G.I.R. CO., 199 MO.
APP. 635, 205 S.W. 870. 

FN11  SUPRA NOTE 4. 

FN12  13 COMP. GEN. 265. 

FN13  ACT OF JANUARY 13, 1883, 22 STAT. 402. 

FN14  SEE 44 U.S.C. 40. 

FN15  ACT OF MAY 24, 1888, 25 STAT. 157; CF. UNITED STATES V. POST,
148 U.S. 124.  SEE ALSO 39 U.S.C. 117. 

FN16  ACT OF FEB. 13, 1911, SEC. 5, 36 STAT. 901.  SEE UNITED STATES
V. MYERS, 320 U.S. 561. 

FN17  ACT OF JULY 24, 1919, 41 STAT. 241, 7 U.S.C. 394. 

FN18  ACT OF JUNE 28, 1940, 54 STAT. 676, 678.  THIS ACT EXPIRED JUNE
30, 1942. 

FN19  S. REP. NO. 1863, 76TH CONG., 3D SESS., PP. 11-12. 

FN20  H. REP. NO. 2257, 76TH CONG., 3D SESS., PP. 3-4. 

FN21  ACT OF OCTOBER 21, 1940, 54 STAT. 1205.  THIS ACT EXPIRED JUNE
30, 1942. 

FN22  86 CONG. REC. 13557. 

FN23  56 STAT. 1068. 

FN24  ACT OF MAY 7, 1943, 57 STAT. 75, SEC. 1. 

FN25  THE GOVERNMENT RELIES ON THE ACT OF JUNE 30, 1906, 34 STAT.
763, 5 U.S.C. 84.  THAT STATUTE, HOWEVER, WAS NOT ADDRESSED TO THE
PROBLEM OF A STANDARD WORK WEEK OF A LIMITED NUMBER OF HOURS AND THE
CALCULATION OF OVERTIME FOR HOURS WORKED IN EXCESS OF THE LIMIT. 

FN26  SEE ST. JOHN V. BROWN; ALLEN V. MOE, SUPRA, NOTE 10. 

MR. JUSTICE MURPHY CONCURS IN THE RESULT. 

THE CHIEF JUSTICE, MR. JUSTICE JACKSON AND MR. JUSTICE RUTLEDGE
DISSENT. 
..END :











TILLER V. ATLANTIC COAST LINE, 323 U.S. 574 


NO. 335.  ARGUED JANUARY 5, 1945.  - DECIDED JANUARY 15, 1945.  - 142
F.2D 718, REVERSED. 


1.  WHETHER THE RAILROAD'S FAILURE TO PROVIDE THE LOCOMOTIVE WITH A
LIGHT ON THE REAR, AS REQUIRED BY RULES PRESCRIBED BY THE INTERSTATE
COMMERCE COMMISSION PURSUANT TO THE BOILER INSPECTION ACT, PROXIMATELY
CONTRIBUTED TO THE DEATH OF THE DECEDENT IN THIS CASE - THOUGH IF THE
LIGHT HAD BEEN PROVIDED IT WOULD HAVE BEEN OBSCURED BY THE CARS WHICH
THE LOCOMOTIVE WAS PUSHING IN REVERSE - WAS A QUESTION FOR THE JURY. 
P. 578. 

2.  THE DISTRICT COURT CORRECTLY CHARGED THE JURY IN THIS CASE THAT
THEIR VERDICT SHOULD BE FOR THE PLAINTIFF IF THEY FOUND THAT THE BACK
UP MOVEMENT WAS UNUSUAL AND UNEXPECTED, THAT IT WAS MADE WITHOUT
ADEQUATE WARNING TO THE DECEDENT, AND THAT FAILURE TO GIVE ADEQUATE
WARNING WAS THE PROXIMATE CAUSE OF THE INJURY.  P. 579. 

3.  IN A SUIT AGAINST A RAILROAD UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT FOR A DEATH RESULTING FROM NEGLIGENCE, AN AMENDMENT OF
THE COMPLAINT ALLEGING A VIOLATION OF THE BOILER INSPECTION ACT, HELD
NOT BARRED BY THE THREE YEARS' LIMITATION OF THE FEDERAL EMPLOYERS'
LIABILITY ACT.  P. 580. 

4.  THE CLAIM ASSERTED BY THE AMENDED COMPLAINT AROSE OUT OF THE SAME
CONDUCT, TRANSACTION AND OCCURRENCE SET FORTH IN THE ORIGINAL
COMPLAINT; THERE WAS THEREFORE NO DEPARTURE.  RULE 15(C) OF THE RULES
OF CIVIL PROCEDURE.  P. 581. 

5.  THE DISTRICT COURT PROPERLY REFUSED TO SET ASIDE THE VERDICT FOR
THE PLAINTIFF IN THIS CASE.  P. 581. 

TILLER, EXECUTOR, V. ATLANTIC COAST LINE RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, POST, P. 689, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PLAINTIFF IN A SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER'S HUSBAND WAS KILLED WHILE IN THE PERFORMANCE OF HIS
DUTIES AS AN EMPLOYEE OF RESPONDENT RAILROAD.  SHE FILED SUIT UNDER THE
FEDERAL EMPLOYERS LIABILITY ACT, 45 U.S.C. SEC. 51 ET SEQ., ALLEGING
THAT HER HUSBAND'S DEATH WAS CAUSED BY THE NEGLIGENT OPERATION OF A
RAILROAD CAR WHICH STRUCK AND KILLED HIM, AND BECAUSE OF RESPONDENT'S
FAILURE TO PROVIDE HIM A REASONABLY SAFE PLACE TO WORK.  THE DISTRICT
COURT DIRECTED A VERDICT IN FAVOR OF THE RAILROAD AND THE CIRCUIT COURT
OF APPEALS AFFIRMED.  128 F.2D 420.  WE REVERSED, HOLDING THAT THERE
WAS SUFFICIENT EVIDENCE OF THE RAILROAD'S NEGLIGENCE TO REQUIRE
SUBMISSION OF THE CASE TO THE JURY.  TILLER V. ATLANTIC COAST LINE R.
CO., 318 U.S. 54, 68, 73.  ON REMAND, PETITIONER AMENDED HER COMPLAINT
IN THE DISTRICT COURT, OVER RESPONDENT'S OBJECTION, BY CHARGING THAT,
IN ADDITION TO THE NEGLIGENCE PREVIOUSLY ALLEGED, THE DECEDENT'S DEATH
WAS CAUSED BY THE RAILROAD'S VIOLATION OF THE FEDERAL BOILER INSPECTION
ACT, 45 U.S.C. SEC. 22 ET SEQ., AND RULES AND REGULATIONS PRESCRIBED BY
THE INTERSTATE COMMERCE COMMISSION PURSUANT TO THE PROVISIONS OF THAT
ACT.  THE JURY RETURNED A VERDICT IN FAVOR OF PETITIONER, AND THE
DISTRICT COURT REFUSED TO SET IT ASIDE.  THE CIRCUIT COURT OF APPEALS
REVERSED, 142 F.2D 718, AND CERTIORARI WAS GRANTED BECAUSE OF THE
IMPORTANCE OF QUESTIONS INVOLVED RELATING TO THE ADMINISTRATION AND
ENFORCEMENT OF THE FEDERAL EMPLOYERS LIABILITY ACT AND THE FEDERAL
BOILER INSPECTION ACT. 

HERE, AS IN THE CIRCUIT COURT OF APPEALS, RESPONDENT HAS AGAIN ARGUED
THAT THE EVIDENCE OF NEGLIGENCE CHARGED IN THE ORIGINAL COMPLAINT WAS
INSUFFICIENT TO JUSTIFY SUBMISSION OF THE CASE TO THE JURY.  SLIGHT
VARIATIONS IN THE EVIDENCE PRESENTED AT THE TWO TRIALS ARE SAID TO
REQUIRE A DIFFERENT CONCLUSION THAN THAT WHICH WE REACHED ON THE FIRST
REVIEW OF THIS CASE. 

AS TO THIS CONTENTION OF RESPONDENT, THE CIRCUIT COURT OF APPEALS
SAID ON THE SECOND APPEAL THAT 

"SINCE THE EVIDENCE AT THE SECOND TRIAL IN RESPECT TO THE MOVEMENT OF
THE CARS WAS SUBSTANTIALLY THE SAME AS AT THE FIRST, THIS DECISION
(I.E. OUR DECISION IN 318 U.S. 54) REQUIRED THE DISTRICT JUDGE
NOTWITHSTANDING THE OPPOSITION OF THE DEFENDANT TO SUBMIT THE CASE TO
THE JURY.  OUR DUTY UPON THIS APPEAL TO AFFIRM THE JUDGMENT  ...  WOULD
HAVE BEEN EQUALLY CLEAR IF THE PLAINTIFF HAD BEEN CONTENT AT THE SECOND
TRIAL TO REST UPON THE LEGAL THEORY OUTLINED IN THE OPINION OF THE
SUPREME COURT; BUT THE PLAINTIFF AMENDED THE COMPLAINT BY SPECIFYING A
NEW ITEM OF NEGLIGENCE WHICH WAS SUBMITTED TO THE JURY AS AN
ALTERNATIVE GROUND FOR RECOVERY.  SINCE THE VERDICT FOR THE PLAINTIFF
WAS GENERAL AND DID NOT SPECIFY THE GROUND ON WHICH IT RESTED, IT
BECOMES NECESSARY FOR US TO DETERMINE WHETHER THERE WAS SUFFICIENT
EVIDENCE TO JUSTIFY THE SUBMISSION OF THIS NEW THEORY TO THE JURY OVER
THE DEFENDANT'S OBJECTION." 

WE REAFFIRM OUR PREVIOUS HOLDING THAT THE EVIDENCE JUSTIFIED
SUBMISSION TO THE JURY OF THE ISSUES RAISED BY THE ORIGINAL ALLEGATIONS
OF NEGLIGENCE. 

THE CIRCUIT COURT OF APPEALS, HOWEVER, HELD THAT THERE WAS NO
EVIDENCE THAT THE ALLEGED VIOLATION OF THE BOILER INSPECTION ACT WAS
"THE PROXIMATE CAUSE OF THE ACCIDENT IN WHOLE OR IN PART," AND THAT THE
DISTRICT COURT SHOULD THEREFORE HAVE DIRECTED THAT THIS ISSUE BE FOUND
IN FAVOR OF THE RAILROAD.  THE COMPLAINT ALLEGED, IN THIS RESPECT, THAT
THE DECEDENT'S DEATH WAS CAUSED BY VIOLATION OF RULES AND REGULATIONS
PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION PURSUANT TO THE
PROVISIONS OF THE FEDERAL BOILER INSPECTION ACT.  THAT ACT BROADLY
AUTHORIZES THE COMMISSION TO PRESCRIBE STANDARDS "TO REMOVE UNNECESSARY
PERIL TO LIFE OR LIMB."  FN1  THE COMPLAINT ALLEGED A VIOLATION OF RULE
131 OF THE COMMISSION, WHICH READS AS FOLLOWS: 

"LOCOMOTIVES USED IN YARD SERVICE.  - EACH LOCOMOTIVE USED IN YARD
SERVICE BETWEEN SUNSET AND SUNRISE SHALL HAVE TWO LIGHTS, ONE LOCATED
ON THE FRONT OF THE LOCOMOTIVE AND ONE ON THE REAR, EACH OF WHICH SHALL
ENABLE A PERSON IN THE CAB OF THE LOCOMOTIVE UNDER THE CONDITIONS,
INCLUDING VISUAL CAPACITY, SET FORTH IN RULE 129, TO SEE A DARK OBJECT
SUCH AS THERE DESCRIBED FOR A DISTANCE OF AT LEAST 300 FEET AHEAD AND
IN FRONT OF SUCH HEADLIGHT; AND SUCH HEADLIGHTS MUST BE MAINTAINED IN
GOOD CONDITION." 

THE LOCOMOTIVE WHICH PUSHED BACKWARDS THE STRING OF CARS ONE OF WHICH
STRUCK AND KILLED THE DECEASED WAS OPERATED IN VIOLATION OF THE LITERAL
WORDS OF THIS REGULATION.  IT WAS BEING USED IN "YARD SERVICE" AT
RESPONDENT'S CLOPTON YARDS "BETWEEN SUNSET AND SUNRISE."  THERE WAS NO
LIGHT ON THE REAR OF THE LOCOMOTIVE, WHICH WAS MOVING IN REVERSE
TOWARDS THE DECEASED.  FN2 

IT WAS FOR THE JURY TO DETERMINE WHETHER THE FAILURE TO PROVIDE THIS
REQUIRED LIGHT ON THE REAR OF THE LOCOMOTIVE PROXIMATELY CONTRIBUTED TO
THE DECEASED'S DEATH.  THE RULING OF THE COURT BELOW THAT IT WAS NOT A
PROXIMATE CAUSE WAS BASED ON THIS REASONING:  THE GENERAL RAILROAD
PRACTICE IN YARD MOVEMENTS IS TO PUSH CARS ATTACHED TO THE REAR OF AN
ENGINE; NO EXPRESS REGULATION OF THE COMMISSION PROHIBITS THIS; IN THE
INSTANT CASE THE CARS ATTACHED TO THE ENGINE NECESSARILY WOULD HAVE
OBSCURED ANY LIGHT ON THE REAR OF THAT ENGINE; THE LIGHT SO OBSCURED
WOULD NOT HAVE ENABLED THE ENGINEER TO SEE 300 FEET BACKWARDS SO AS TO
AVOID INJURING THE DECEASED NOR WOULD THE LIGHT HAVE BEEN VISIBLE TO
THE DECEASED STANDING AT OR NEAR THE TRACK AHEAD OF THE BACKWARD
MOVEMENT.  THEREFORE, THE COURT CONCLUDED, THE FAILURE TO FURNISH THE
LIGHT WAS NOT PROXIMATELY RELATED TO THE DEATH OF TILLER. 

ASSUMING, WITHOUT DECIDING, THAT THE RAILROAD COULD CONSISTENTLY WITH
RULE 131 OBSCURE THE REQUIRED LIGHT ON THE REAR OF THE ENGINE, IT DOES
NOT FOLLOW THAT, AS A MATTER OF LAW, FAILURE TO HAVE THE LIGHT DID NOT
CONTRIBUTE TO TILLER'S DEATH.  THE DECEASED MET HIS DEATH ON A DARK
NIGHT, AND THE DIFFUSED RAYS OF A STRONG HEADLIGHT EVEN THOUGH DIRECTLY
OBSCURED FROM THE FRONT, MIGHT EASILY HAVE SPREAD THEMSELVES SO THAT
ONE STANDING WITHIN THREE CAR-LENGTHS OF THE APPROACHING LOCOMOTIVE
WOULD HAVE BEEN GIVEN WARNING OF ITS PRESENCE, OR AT LEAST SO THE JURY
MIGHT HAVE FOUND.  THE BACKWARD MOVEMENT OF CARS ON A DARK NIGHT IN AN
UNLIT YARD WAS POTENTIALLY PERILOUS TO THOSE COMPELLED TO WORK IN THE
YARD.  TENNANT V. PEORIA & P.U.R. CO., 321 U.S. 29, 33.  AND "THE
STANDARD OF CARE MUST BE COMMENSURATE TO THE DANGERS OF THE BUSINESS." 
TILLER V. ATLANTIC COAST LINE R. CO., SUPRA, 67. 

AN ADDITIONAL GROUND OF THE REVERSAL OF THIS CAUSE BY THE CIRCUIT
COURT OF APPEALS WAS THAT PART OF THE DISTRICT COURT'S CHARGE TO THE
JURY SET OUT IN THE MARGIN.  FN3 IT INSTRUCTED THE JURY THAT IF THEY
BELIEVED THAT THE BACK-UP MOVEMENT WAS AN UNUSUAL AND UNEXPECTED ONE,
AND A DEPARTURE FROM THE GENERAL PRACTICE IN MAKING UP THAT PARTICULAR
TRAIN, AND THAT TILLER HAD NO REASONABLE CAUSE TO BELIEVE THAT SUCH A
MOVEMENT WOULD BE MADE, IT BECAME THE DUTY OF THE DEFENDANT TO GIVE HIM
ADEQUATE WARNING OF THAT MOVEMENT AND IF THE JURY FOUND THAT THE
DEFENDANT FAILED TO PERFORM THIS DUTY, AND THAT FAILURE WAS THE
PROXIMATE CAUSE OF THE INJURY, ITS VERDICT SHOULD BE FOR THE
PLAINTIFF.  THE ORIGINAL COMPLAINT ALLEGED THIS AS ONE OF THE GROUNDS
OF NEGLIGENCE.  THE CIRCUIT COURT OF APPEALS HELD THAT THERE WAS
SUBSTANTIAL TESTIMONY TO SUPPORT A FINDING THAT THE MOVEMENT WAS AN
UNUSUAL ONE.  NEVERTHELESS, BECAUSE NO RAILROAD RULE OR CUSTOM
PROHIBITED SUCH AN UNUSUAL MOVEMENT, BECAUSE SOME OF THE EVIDENCE
SHOWED THAT THE SAME MOVEMENT HAD BEEN PERFORMED ON OTHER OCCASIONS,
AND BECAUSE TILLER WAS FAMILIAR WITH THE LOCAL SITUATION, THE CIRCUIT
COURT OF APPEALS HELD THAT THE RAILROAD OWED NO DUTY TO WARN HIM OF
SUCH AN UNUSUAL MOVEMENT.  WE CANNOT SAY THAT A JURY COULD NOT
REASONABLY FIND NEGLIGENCE FROM THE EVIDENCE WHICH SHOWED SUCH AN
UNPRECEDENTED DEPARTURE FROM THE USUAL CUSTOM AND PRACTICE IN BACKING
CARS, WITHOUT GIVING "ADEQUATE WARNING OF THE MOVEMENT."  COMPARE
TOLEDO, ST. L. & W.R. CO. V. ALLEN, 276 U.S. 165, 171.  FN4  THE CHARGE
OF THE DISTRICT COURT IN THIS RESPECT WAS CORRECT. 

RESPONDENT SEEKS TO SUPPORT THE CIRCUIT COURT'S REVERSAL OF THE CAUSE
ON THE GROUND THAT THE DISTRICT COURT ERRONEOUSLY PERMITTED PETITIONER
TO AMEND HER ORIGINAL COMPLAINT.  THE INJURY OCCURRED MARCH 21, 1940. 
SUIT WAS FILED UNDER THE FEDERAL EMPLOYERS LIABILITY ACT ON JANUARY 17,
1941.  THE AMENDMENT ALLEGING VIOLATION OF THE BOILER INSPECTION ACT
WAS FILED JUNE 1, 1943, WHICH WAS MORE THAN THREE YEARS AFTER THE
DEATH.  FEDERAL EMPLOYERS LIABILITY ACT, SEC. 6, PROVIDES THAT A SUIT
UNDER THAT ACT MUST BE COMMENCED WITHIN THREE YEARS AFTER INJURY.  THE
CONTENTION IS THAT THE THREE-YEAR LIMITATION STATUTE PROVIDED IN THE
FEDERAL EMPLOYERS LIABILITY ACT BARRED THE AMENDMENT WHICH RESTED ON
THE BOILER INSPECTION ACT. 

WE ARE OF THE OPINION THAT THE AMENDMENT WAS PROPERLY PERMITTED. 
"WHENEVER THE CLAIM OR DEFENSE ASSERTED IN THE AMENDED PLEADING AROSE
OUT OF THE CONDUCT, TRANSACTION, OR OCCURRENCE SET FORTH OR ATTEMPTED
TO BE SET FORTH IN THE ORIGINAL PLEADING, THE AMENDMENT RELATES BACK TO
THE DATE OF THE ORIGINAL PLEADING."  THE ORIGINAL COMPLAINT IN THIS
CASE ALLEGED A FAILURE TO PROVIDE A PROPER LOOKOUT FOR DECEASED, TO
GIVE HIM PROPER WARNING OF THE APPROACH OF THE TRAIN, TO KEEP THE HEAD
CAR PROPERLY LIGHTED, TO WARN THE DECEASED OF AN UNPRECEDENTED AND
UNEXPECTED CHANGE IN THE MANNER OF SHIFTING CARS.  THE AMENDED
COMPLAINT CHARGED THE FAILURE TO HAVE THE LOCOMOTIVE PROPERLY LIGHTED. 
BOTH OF THEM RELATED TO THE SAME GENERAL CONDUCT, TRANSACTION AND
OCCURRENCE WHICH INVOLVED THE DEATH OF THE DECEASED.  THERE WAS
THEREFORE NO DEPARTURE.  THE CAUSE OF ACTION NOW, AS IT WAS IN THE
BEGINNING, IS THE SAME - IT IS A SUIT TO RECOVER DAMAGES FOR THE
ALLEGED WRONGFUL DEATH OF THE DECEASED.  "THE EFFECT OF THE AMENDMENT
HERE WAS TO FACILITATE A FAIR TRIAL OF THE EXISTING ISSUES BETWEEN
PLAINTIFF AND DEFENDANT."  MATY V. GRASSELLI CO., 303 U.S. 197, 201. 
THERE IS NO REASON TO APPLY A STATUTE OF LIMITATIONS WHEN, AS HERE, THE
RESPONDENT HAS HAD NOTICE FROM THE BEGINNING THAT PETITIONER WAS TRYING
TO ENFORCE A CLAIM AGAINST IT BECAUSE OF THE EVENTS LEADING UP TO THE
DEATH OF THE DECEASED IN THE RESPONDENT'S YARD.  FN5 

WE FIND NO ERROR IN THE DISTRICT COURT'S DISPOSITION OF THE CASE. 
THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  LILLY V. GRAND TRUNK WESTERN R. CO., 317 U.S. 481, 486; UNITED
STATES V. B. & O.R. CO., 293 U.S. 454. 

FN2  THE CONTENTION IS MADE THAT SINCE THIS LOCOMOTIVE WAS USED IN
ROAD SERVICE AS WELL AS YARD SERVICE THE RULE SHOULD BE HELD
INAPPLICABLE TO IT AS A MATTER OF LAW.  SUCH A NARROW INTERPRETATION OF
THE REGULATION WOULD BE WHOLLY OUT OF KEEPING WITH THE LIBERAL
CONSTRUCTION WHICH WE HAVE CONSTANTLY SAID MUST BE GIVEN TO THIS AND
THE SAFETY APPLIANCE ACT, 45 U.S.C.A., SEC. 1 ET SEQ. LILLY V. GRAND
TRUNK WESTERN R. CO., SUPRA, 486. 

WE THINK THE COURT'S CHARGE TO THE JURY ON THIS POINT WAS CONSISTENT
WITH A PROPER INTERPRETATION OF THE RULE.  THAT CHARGE WAS: 

"IF THE JURY BELIEVES FROM THE EVIDENCE THAT THE ROAD ENGINE, ON THE
NIGHT MR. TILLER WAS INJURED, IN MAKING THE MOVEMENTS IT MADE IN SAID
YARD WAS BEING USED BY THE DEFENDANT TO CLASSIFY ITS CARS AND MAKE UP
ITS TRAIN, THEN THE SAID ENGINE WAS THEN BEING USED IN YARD SERVICE. 
ON THE OTHER HAND, IF THE JURY BELIEVES FROM THE EVIDENCE THAT THE SAID
ROAD ENGINE WAS BACKING INTO SLOW SIDING FOR THE PURPOSE OF GETTING OUT
OF THE WAY OF THE YARD ENGINE SO THAT SAID YARD ENGINE COULD CLASSIFY
CARS AND MAKE UP TRAINS, THEN SAID LOCOMOTIVE IN MAKING SAID MOVEMENT
WAS NOT BEING USED IN YARD SERVICE." 

FN3  "THE COURT CHARGES THE JURY THAT IF YOU BELIEVE FROM THE
EVIDENCE THAT MR. TILLER WAS STRUCK WHILE THE ENGINE AND CARS OF THE
DEFENDANT WERE MAKING A BACK-UP MOVEMENT ON THE NIGHT OF MARCH 20TH,
1940; THAT SUCH MOVEMENT WAS AN UNUSUAL AND AN UNEXPECTED ONE AND A
DEPARTURE FROM THE GENERAL PRACTICE FOLLOWED IN MAKING UP TRAIN NO.
209; THAT MR. TILLER ON THE OCCASION IN QUESTION WAS WORKING ON OR NEAR
THE SLOW SIDING WITHOUT KNOWING OR HAVING REASONABLE CAUSE TO BELIEVE
THAT SUCH A MOVEMENT WOULD BE MADE, THEN IT BECAME AND WAS THE DUTY OF
THE DEFENDANT IN MAKING SUCH MOVEMENT TO GIVE ADEQUATE WARNING OF THE
SAME, AND IF THE JURY BELIEVE FROM THE EVIDENCE THAT THE DEFENDANT
FAILED TO PERFORM SUCH DUTY AND AS A PROXIMATE RESULT OF SUCH FAILURE,
MR. TILLER RECEIVED THE INJURIES FROM WHICH HE DIED, THEN THE JURY
SHOULD RETURN A VERDICT FOR THE PLAINTIFF." 

FN4  SEE CHESAPEAKE & OHIO R. CO. V. DE ATLEY, 241 U.S. 310;
CHESAPEAKE & OHIO R. CO. V. PEYTON, 253 F. 734(C.C.A. 4); FERRINGER V.
CROWLEY OIL & MINERAL CO., 122 LA. 441, 47 SO. 763; LOUISVILLE &
NASHVILLE R. CO. V. ASHER'S ADM'R, 178 KY. 67, 198 S.W. 548; DIRECTOR
GENERAL V. HUBBARD'S ADM'R, 132 VA. 193, 111 S.E. 446; 2 SHEARMAN &
REDFIELD ON NEGLIGENCE (REV. ED.), 566, 607; CF. DAVIS V. PHILADELPHIA
& READING R. CO., 276 F. 187.    FN5  SEE FRIEDERICHSEN V. RENARD, 247
U.S. 207; UNITED STATES V. MEMPHIS COTTON OIL CO., 288 U.S. 62; UNITED
STATES V. POWELL, 93 F.2D 788, 790. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS ARE OF THE OPINION THAT THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD BE AFFIRMED. 
..END :







FITCH CO. V. UNITED STATES, 323 U.S. 582 


NO. 181.  ARGUED DECEMBER 13, 1944.  - DECIDED JANUARY 15, 1945.  - 141
F.2D 380, AFFIRMED. 


1.  UNDER SEC. 603 OF THE REVENUE ACT OF 1932, WHICH IMPOSED ON TOILET
PREPARATIONS SOLD BY MANUFACTURERS OR PRODUCERS AN EXCISE TAX OF A
STATED PERCENTAGE OF THE SELLING PRICE, HELD THAT ADVERTISING AND
SELLING EXPENSES WERE NOT EXCLUDABLE FROM THE SELLING PRICE IN
COMPUTING THE TAX.  P. 584. 

2.  IN COMPUTING THE SELLING PRICE FOR PURPOSES OF THE TAX LEVIED BY
SEC. 603 OF THE REVENUE ACT OF 1932, SEC. 619(A) PROVIDES ON CERTAIN
CONDITIONS FOR THE EXCLUSION OF "A TRANSPORTATION, DELIVERY, INSURANCE,
INSTALLATION, OR OTHER CHARGE  ..."  HELD THAT THE TERM "OTHER CHARGE"
DOES NOT EMBRACE ADVERTISING AND SELLING EXPENSES.  P. 584. 

3.  BY THE RULE OF EJUSDEM GENERIS, APPLICABLE HERE SINCE IT DOES NOT
CONFLICT WITH THE GENERAL PURPOSE OF THE STATUTE, THE TERM "OTHER
CHARGE" IN SEC. 619(A) IS LIMITED TO EXPENSES SIMILAR IN CHARACTER TO
THOSE INCURRED FOR TRANSPORTATION, DELIVERY, INSURANCE, AND
INSTALLATION - ALL OF WHICH ARE INCURRED SUBSEQUENT TO THE PREPARATION
OF AN ARTICLE FOR SHIPMENT AND ARE NOT INCLUDED IN THE MANUFACTURER'S
F.O.B. SELLING PRICE.  P. 585. 

4.  THE CONSTRUCTION HERE GIVEN THE ACT ACCORDS WITH THE CONSISTENT
ADMINISTRATIVE CONSTRUCTION AND IS REQUIRED BY ACCEPTED RULES OF
STATUTORY CONSTRUCTION.  P. 586. 

5.  IT IS NOT FOR THE COURTS TO AFFORD RELIEF FROM SUCH INEQUALITIES
AND DISCRIMINATIONS AS INEVITABLY RESULT WHERE A FLAT TAX IS MEASURED
BY WHOLESALE SELLING PRICES.  P. 586. 

6.  SECTION 619(B) OF THE REVENUE ACT OF 1932 IS INAPPLICABLE WHERE
SALES WERE MADE AT WHOLESALE, AND DOES NOT REQUIRE A DIFFERENT RESULT
FROM THAT HERE REACHED.  P. 587. 

F.W. FITCH CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 690, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE TAXPAYER, 52 F.SUPP.  292, IN A SUIT FOR A TAX REFUND. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

INTERNAL REVENUE CODE SEC. 3401, IMPOSES ON TOILET PREPARATIONS SOLD BY
MANUFACTURERS OR PRODUCERS AN EXCISE TAX EQUIVALENT TO STATED
PERCENTAGES "OF THE PRICE FOR WHICH SO SOLD."  PETITIONER WAS SUBJECT
TO THIS TAX FROM OCTOBER 1, 1936, TO JUNE 30, 1939, AND HAS SOUGHT A
REFUND OF A PORTION OF THE TAX PAID ON THE GROUND THAT ITS SELLING AND
ADVERTISING EXPENSES SHOULD HAVE BEEN EXCLUDED FROM THE SELLING PRICES
IN COMPUTING THE TAX.  THE DISTRICT COURT AFTER TRIAL UPHELD THIS CLAIM
AND AWARDED A REFUND, 52 F.SUPP.  292, BUT THE COURT BELOW REVERSED
THAT JUDGMENT, 141 F.2D 380.  THE ALLEGED CONFLICT WITH THE DECISIONS
OF THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN CAMPANA
CORP. V. HARRISON, 114 F.2D 400, AND CAMPANA CORP. V. HARRISON, 135
F.2D 334, LED US TO GRANT CERTIORARI. 

THE CONTROVERSY HERE CENTERS ABOUT SEC. 619(A) OF THE ACT, WHICH
PROVIDES FOR THE INCLUSION AND EXCLUSION OF CERTAIN ITEMS IN COMPUTING
THE SELLING PRICE FOR PURPOSES OF THE TAX LEVIED BY SEC. 603 AS WELL AS
VARIOUS OTHER SECTIONS.  SECTION 619(A) STATES THAT, IN COMPUTING THE
SALES PRICE, 

"...  THERE SHALL BE INCLUDED ANY CHARGE FOR COVERINGS AND CONTAINERS
OF WHATEVER NATURE, AND ANY CHARGE INCIDENT TO PLACING THE ARTICLE IN
CONDITION PACKED READY FOR SHIPMENT, BUT THERE SHALL BE EXCLUDED THE
AMOUNT OF TAX IMPOSED BY THIS TITLE, WHETHER OR NOT STATED AS A
SEPARATE CHARGE.  A TRANSPORTATION, DELIVERY, INSURANCE, INSTALLATION,
OR OTHER CHARGE (NOT REQUIRED BY THE FOREGOING SENTENCE TO BE INCLUDED)
SHALL BE EXCLUDED FROM THE PRICE ONLY IF THE AMOUNT THEREOF IS
ESTABLISHED TO THE SATISFACTION OF THE COMMISSIONER, IN ACCORDANCE WITH
THE REGULATIONS." 

PETITIONER CONTENDS THAT ADVERTISING AND SELLING EXPENSES FALL WITHIN
THE TERM "OTHER CHARGE" APPEARING IN THE LAST SENTENCE OF SEC. 619(A)
AND HENCE ARE EXCLUDABLE IN DETERMINING THE SELLING PRICE FOR TAX
PURPOSES.  THIS CLAIM, HOWEVER, IS REFUTED BY BOTH THE SPIRIT AND THE
LETTER OF THIS STATUTORY PROVISION. 

CONGRESS SOUGHT IN THE REVENUE ACT OF 1932 TO USE THE MANUFACTURER'S
OR WHOLESALER'S SELLING PRICE, RATHER THAN THE RETAIL PRICE, AS THE
MEASURE OF THE EXCISE TAXES IMPOSED BY SEC. 603.  75 CONG. REC. 11383,
11657.  SECTION 619(A) WAS DESIGNED TO LAY DOWN SPECIFIC RULES FOR
DETERMINING THIS SELLING PRICE, ESPECIALLY IN RELATION TO COSTS
INCURRED AFTER THE ARTICLE ITSELF HAD BEEN MANUFACTURED.  IT PROVIDES
FOR THE USE OF THE MANUFACTURER'S OR PRODUCER'S F.O.B. PRICE AT THE
FACTORY OR PLACE OF PRODUCTION.  IN ESSENCE, ALL MANUFACTURING AND
OTHER CHARGES INCURRED PRIOR TO THE ACTUAL SHIPMENT OF AN ARTICLE AND
REFLECTED SEPARATELY OR OTHERWISE IN THE F.O.B. WHOLESALE PRICE ARE TO
BE INCLUDED IN THE SALE PRICE UNDERLYING THE TAX, WHILE ALL CHARGES
INCURRED SUBSEQUENT THERETO ARE TO BE EXCLUDED.  HENCE ANY ADDITIONAL
CHARGE WHICH A PURCHASER WOULD NOT BE REQUIRED TO PAY IF HE ACCEPTED
DELIVERY OF THE ARTICLE AT THE FACTORY OR PLACE OF PRODUCTION MAY BE SO
EXCLUDED.  SEE H. REP. NO. 708(72D CONG., 1ST SESS.) P. 37; S. REP. NO.
665, PART 3(72D CONG., 1ST SESS.) P. 3; H. CONF. REP. NO. 1492(72D
CONG., 1ST SESS.) P. 22. 

ADVERTISING AND SELLING EXPENSES INCURRED BY A MANUFACTURER SUCH AS
PETITIONER CLEARLY FALL WITHIN THE CLASS OF CHARGES WHICH CONGRESS
INTENDED TO BE INCLUDED IN THE TAX BASE.  REGARDLESS OF WHETHER WE
CONSIDER SUCH EXPENSES TECHNICALLY AS MANUFACTURING COSTS, IT IS
OBVIOUS THAT THEY ARE INCURRED PRIOR TO THE ACTUAL SHIPMENT OF ARTICLES
TO WHOLESALE PURCHASERS AND THAT THEY ENTER INTO THE COMPOSITION OF THE
WHOLESALE SELLING PRICE.  EVEN IF THE PURCHASER ACCEPTS DELIVERY AT THE
FACTORY, HE PAYS FOR THE ADVERTISING AND SELLING EXPENSES.  THUS THEY
MUST BE INCLUDED IN THE TAXABLE SALES PRICE. 

THE INCLUSION OF THESE EXPENSES IS PLAINLY WARRANTED BY THE LANGUAGE
OF SEC. 619(A).  PRE-SHIPMENT CHARGES RELATIVE TO COVERINGS, CONTAINERS
AND PLACING AN ARTICLE IN CONDITION FOR SHIPMENT ARE SPECIFICALLY
INCLUDED IN THE DETERMINATION OF THE SELLING PRICE.  BUT A SUBSEQUENT
"TRANSPORTATION, DELIVERY, INSURANCE, INSTALLATION, OR OTHER CHARGE" IS
TO BE EXCLUDED IF PROPERLY ESTABLISHED.  IN THE SETTING OF THIS CASE,
NO RULE OF REASON OR GRAMMAR JUSTIFIES PLACING ADVERTISING AND SELLING
EXPENSES WITHIN THE MEANING OF THIS EXCLUSIONARY SENTENCE. 

TO BEGIN WITH, ADVERTISING AND SELLING EXPENSES ARE OBVIOUSLY NOT
COMPARABLE TO THE SPECIFIED CHARGES FOR TRANSPORTATION, DELIVERY,
INSURANCE OR INSTALLATION - ALL OF WHICH ARE INCURRED SUBSEQUENT TO THE
PREPARATION OF AN ARTICLE FOR SHIPMENT AND ARE NOT INCLUDED IN THE
MANUFACTURER'S F.O.B. SELLING PRICE.  HENCE ADVERTISING AND SELLING
EXPENSES CANNOT BE ENCOMPASSED BY THE TERM "OTHER CHARGE" UNLESS THAT
TERM BE TAKEN TO INCLUDE CHARGES ENTIRELY DISSIMILAR TO THOSE
SPECIFIED.  THIS TERM, HOWEVER, WAS UNDERSTOOD BY ITS FRAMERS TO MEAN
"LIKE CHARGES" OR "SIMILAR CHARGES" TO THOSE SPECIFICALLY ENUMERATED IN
THE SAME SENTENCE.  H. REP. NO. 708(72D CONG., 1ST SESS.) P. 37; S.
REP. NO. 665, PART 3(72D CONG., 1ST SESS.) P. 3; H. CONF. REP. NO.
1492(72D CONG., 1ST SESS.) P. 22.  WHEN THIS FACT IS ADDED TO THE
GENERAL INTENT OF CONGRESS TO INCLUDE ALL COSTS OR CHARGES INCURRED
PRIOR TO SHIPMENT, THE APPLICABILITY OF THE EJUSDEM GENERIS RULE TO THE
TERM "OTHER CHARGE" BECOMES CLEAR.  THIS RULE, WHICH APPROPRIATELY MAY
BE INVOKED HERE SINCE IT DOES NOT CONFLICT WITH THE GENERAL PURPOSE OF
THE STATUTE, COMPARE SECURITIES & EXCHANGE COMMISSION V. JOINER CORP.,
320 U.S. 344, 350, 351, WITH SMITH V. DAVIS, 323 U.S. 111, LIMITS THE
"OTHER CHARGE" TO EXPENSES SIMILAR IN CHARACTER TO THOSE INCURRED FOR
TRANSPORTATION, DELIVERY, INSURANCE AND INSTALLATION.  SINCE
ADVERTISING AND SELLING EXPENSES ARISE PRIOR TO SHIPMENT AND ARE
NECESSARILY COMPONENTS OF THE F.O.B. SELLING PRICE, THE TERM "OTHER
CHARGE" CANNOT COVER THEM.  FN1  THEY MUST BE INCLUDED IN THE TAX
BASE.  SUCH HAS BEEN THE CONSISTENT ADMINISTRATIVE CONSTRUCTION OF THE
STATUTE, G.C.M. 21114, 1939-1 CUM. BULL.  351, 353.  AND SUCH IS THE
RESULT MADE NECESSARY BY THE ACCEPTED RULES OF STATUTORY CONSTRUCTION. 
FN2 

IT IS ARGUED THAT THIS CONCLUSION RESULTS IN A DISCRIMINATION AGAINST
A MANUFACTURER WHO INDULGES IN HIS OWN ADVERTISING AND SELLING
CAMPAIGNS IN FAVOR OF ONE WHOSE PRODUCTS ARE ADVERTISED BY HIS
CUSTOMERS AND THAT CONGRESS COULD NOT HAVE INTENDED SUCH A
DISCRIMINATION.  BUT THIS DISCRIMINATION, TO THE EXTENT THAT IT MAY
EXIST, IS AN UNAVOIDABLE CONSEQUENCE OF AN EXCISE TAX BASED ON THE
WHOLESALE SELLING PRICE.  SUCH COST FACTORS AS LABOR, MATERIALS AND
ADVERTISING NATURALLY VARY AMONG COMPETING MANUFACTURERS; DIFFERENT
COSTS AND DIFFERENT METHODS OF DOING BUSINESS IN TURN MAY CAUSE THE
WHOLESALE SELLING PRICES TO LACK UNIFORMITY.  AND IF THESE PRICES ARE
TAXED WITHOUT ADJUSTMENT FOR DIFFERING COST FACTORS, TAX INEQUALITIES
AND DISCRIMINATIONS INEVITABLY RESULT.  BUT WHERE, AS HERE, A FLAT TAX
IS PLACED ON THE WHOLESALE SELLING PRICES AND NO STATUTORY PROVISIONS
ARE MADE FOR RELIEF FROM THE RESULTING NATURAL TAX INEQUALITIES, COURTS
ARE POWERLESS TO SUPPLY IT THEMSELVES BY IMPUTING TO CONGRESS AN
UNEXPRESSED INTENT TO ACHIEVE TAX UNIFORMITY AMONG MANUFACTURERS
SELLING AT WHOLESALE.  FN3 

FINALLY, PETITIONER URGES THAT SEC. 619(B) MUST ALSO BE CONSIDERED IN
ORDER TO ASCERTAIN THE TRUE CONGRESSIONAL INTENT AND IN ORDER TO GIVE
SEC. 619(A) ITS PROPER CONSTRUCTION.  BUT SEC. 619(B) MERELY PROVIDES
THAT WHERE THE MANUFACTURER SELLS AT RETAIL, ON CONSIGNMENT OR
OTHERWISE THAN THROUGH AN ARM'S LENGTH TRANSACTION, THE TAX SHALL BE
BASED UPON A FIGURE DETERMINED BY THE COMMISSIONER WITH REFERENCE TO
THE PRICES AT WHICH SIMILAR ARTICLES ARE SOLD IN THE ORDINARY COURSE OF
TRADE.  INASMUCH AS PETITIONER'S SALES WERE MADE AT WHOLESALE, SEC.
619(B) HAS NO DIRECT APPLICATION TO THIS CASE.  BUT IT DOES SERVE TO
EMPHASIZE THE FAILURE OF CONGRESS TO MAKE SIMILAR PROVISIONS FOR TAX
EQUALIZATION UNDER SEC. 619(A) WHERE THE MANUFACTURER'S SALES ARE AT
WHOLESALE.  IT CANNOT, HOWEVER, VARY THE PLAIN INTENT AND LANGUAGE OF
SEC. 619(A) AND CONGRESSIONAL STATEMENTS  FN4  RELATING TO THE
DESIRABILITY OF ELIMINATING DISCRIMINATIONS AGAINST MANUFACTURERS
MAKING RETAIL SALES CANNOT BE TAKEN AS EVIDENCE OF A DESIRE TO PREVENT
THE NATURAL INEQUALITIES THAT RESULT WHEN A TAX IS PLACED ON THE
WHOLESALE SELLING PRICE.  AFFIRMED. 

FN1  THE PARENTHETICAL MATTER FOLLOWING THE TERM "OTHER CHARGE" IN
THE LAST SENTENCE OF SEC. 619(A) - "(NOT REQUIRED BY THE FOREGOING
SENTENCE TO BE INCLUDED)" - IS NOT SIGNIFICANT IN THIS CASE.  IT SERVES
SIMPLY TO PROVIDE THAT, TO THE EXTENT THAT THE PROVISIONS FOR INCLUSION
AND EXCLUSION MAY OVERLAP, THE FORMER SHALL CONTROL. 

FN2  SECTION 3(A) OF THE REVENUE ACT OF 1939, 53 STAT. 862, 863,
INTERNAL REVENUE CODE SEC. 3401, EXCLUDED FROM THE SALE PRICE "A
TRANSPORTATION, DELIVERY, INSURANCE, OR OTHER CHARGE, AND THE
WHOLESALER'S SALESMEN'S COMMISSIONS AND COSTS AND EXPENSES OF
ADVERTISING AND SELLING."  SECTION 3(B) MADE THIS AMENDMENT PROSPECTIVE
ONLY AND HENCE SEC. 3(A) CANNOT BE TAKEN AS A CONGRESSIONAL DECLARATION
THAT THE ADVERTISING AND SELLING EXPENSES WERE INTENDED TO BE EXCLUDED
FROM THE SELLING PRICE UNDER THE REVENUE ACT OF 1932.  ON THE CONTRARY,
THE VERY FACT THAT CONGRESS FOUND IT NECESSARY IN 1939 TO EXCLUDE SUCH
EXPENSES SPECIFICALLY IS PERSUASIVE EVIDENCE THAT PRIOR THERETO
ADVERTISING AND SELLING EXPENSES WERE NOT MEANT TO BE EXCLUDED. 

FN3  CONGRESS HAS SUBSEQUENTLY REALIZED THAT THE EXCISE TAX ON THE
WHOLESALE SELLING PRICE CREATED TAX INEQUALITIES AMONG MANUFACTURERS. 
IN SEC. 552 OF THE REVENUE ACT OF 1941, 55 STAT. 687, 718, CONGRESS
SUBSTITUTED A RETAIL EXCISE TAX FOR THE MANUFACTURER'S EXCISE TAX ON
TOILET PREPARATIONS.  THE REASONS ASSIGNED FOR THE CHANGE WERE THAT
UNDER THE EARLIER LAW "EVASION IS SUBSTANTIAL AND INEQUITABLE
COMPETITIVE SITUATIONS ARE CREATED."  H. REP. NO. 1040(77TH CONG., 1ST
SESS.), P. 33. 

FN4  SEE H. REP. NO. 708(72D CONG., 1ST SESS.), PP. 32-33; 75 CONG.
REC. 5693, 5694. 

MR. JUSTICE ROBERTS CONCURS IN THE RESULT. 
..END :













MCKENZIE V. IRVING TRUST CO., 323 U.S. 365 


NO. 188.  ARGUED DECEMBER 14, 1944.  - DECIDED JANUARY 8, 1945.  - 292
N.Y. 347, 55 N.E.2D 192, AFFIRMED. 


1.  THE PURPOSE OF THE ASSIGNMENT OF CLAIMS ACT OF OCTOBER 9, 1940, 54
STAT. 1029, IS THE PROTECTION OF THE GOVERNMENT AND NOT THE REGULATION
OF EQUITIES OF CLAIMANTS AS BETWEEN THEMSELVES.  P. 369. 

2.  FOR THE PURPOSE OF DETERMINING WHETHER A TRANSFER IS A PREFERENCE
UNDER SEC. 60A OF THE BANKRUPTCY ACT, THAT SECTION PROVIDES THAT THE
TRANSFER SHALL BE DEEMED TO HAVE BEEN MADE "WHEN IT BECAME SO FAR
PERFECTED THAT NO BONA FIDE PURCHASER FROM THE DEBTOR AND NO CREDITOR
COULD THEREAFTER HAVE ACQUIRED ANY RIGHTS IN THE PROPERTY SO
TRANSFERRED SUPERIOR TO THE RIGHTS OF THE TRANSFEREE THEREIN."  SINCE,
IN THE ABSENCE OF ANY CONTROLLING FEDERAL STATUTE, A CREDITOR OR BONA
FIDE PURCHASER COULD ACQUIRE RIGHTS IN THE PROPERTY TRANSFERRED BY THE
DEBTOR ONLY BY VIRTUE OF STATE LAW, SEC. 60A THUS ADOPTS STATE LAW AS
THE RULE OF DECISION FOR DETERMINING THE EFFECTIVENESS OF A TRANSFER
AND THE TIME WHEN A TRANSFER IS DEEMED TO HAVE BEEN MADE OR PERFECTED. 
P. 370. 

3.  IN DETERMINING IN THIS CASE THAT THE TRANSFER OF A CHECK WAS
COMPLETED NOT LATER THAN WHEN THE DEBTOR ENDORSED AND MAILED THE CHECK
TO ITS ASSIGNEE - RATHER THAN WHEN THE ASSIGNEE RECEIVED THE CHECK AND
CREDITED THE PROCEEDS UPON AN ANTECEDENT DEBT - THE STATE COURT APPLIED
THE PROPER TEST UNDER SEC. 60A, AND ITS CONCLUSION THAT UNDER STATE LAW
THE TRANSFER WAS PERFECTED MORE THAN FOUR MONTHS BEFORE BANKRUPTCY IS
ACCEPTED.  HENCE THE TRANSFER WAS NOT A PREFERENCE WITHIN THE MEANING
OF SEC. 60A.  P. 371. 

4.  IN THIS PROCEEDING BY THE TRUSTEE TO SET ASIDE AN ALLEGED
PREFERENCE, THE COURT CAN NOT ADJUDICATE UPON THE PRESENT RECORD THE
CLAIM OF A SURETY WHOSE CLAIM, IF IT HAS ONE, IS ADVERSE AND SUPERIOR
TO THAT OF THE TRUSTEE IN BANKRUPTCY AND THE OTHER CREDITORS, AND WHO
IS NOT A PARTY TO THE SUIT.  P. 372. 

5.  UNDER THE FEDERAL RULE, A SUBSEQUENT ASSIGNEE IS ENTITLED TO
RETAIN ASSIGNED MONEYS WHICH IT RECEIVES WITHOUT NOTICE OF A PRIOR
ASSIGNMENT.  MARTIN V. NATIONAL SURETY CO., 300 U.S. 588,
DISTINGUISHED.  P. 373. 

MCKENZIE, TRUSTEE IN BANKRUPTCY, V. IRVING TRUST CO. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

CERTIORARI, POST, P. 687, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
WHICH DISMISSED A CAUSE OF ACTION IN A COMPLAINT BY THE TRUSTEE IN
BANKRUPTCY SEEKING TO SET ASIDE AN ALLEGED PREFERENCE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, TRUSTEE IN BANKRUPTCY OF GRAVES-QUINN CORPORATION, THE
DEBTOR, BROUGHT THIS SUIT IN THE SUPREME COURT OF NEW YORK TO RECOVER
THE SUM OF $150,000 PAID BY THE DEBTOR TO RESPONDENT, ITS CREDITOR. 
THE PAYMENT WAS ALLEGED TO BE AN UNLAWFUL PREFERENCE UNDER SEC. 60A OF
THE BANKRUPTCY ACT, 11 U.S.C. SEC. 96.  RESPONDENT MOVED FOR SUMMARY
JUDGMENT UNDER RULE 113 OF THE NEW YORK RULES OF CIVIL PRACTICE, ON THE
GROUND THAT THE TRANSFER DID NOT OCCUR WITHIN FOUR MONTHS OF
BANKRUPTCY, AND HENCE WAS NOT A PREFERENCE UNDER SEC. 60A.  THE SUPREME
COURT OF NEW YORK DENIED THE MOTION, BUT THE APPELLATE DIVISION OF THE
SUPREME COURT REVERSED, DISMISSING THE COMPLAINT.  266 APP. DIV. 599,
42 N.Y.S.2D 551.  THE NEW YORK COURT OF APPEALS AFFIRMED, 292 N.Y. 347,
55 N.E.2D 192, HOLDING THAT THE TRANSFER WAS NOT MADE WITHIN FOUR
MONTHS OF BANKRUPTCY. 

WE GRANTED CERTIORARI ON A PETITION RAISING QUESTIONS IMPORTANT TO
THE ADMINISTRATION OF THE BANKRUPTCY ACT, ONLY ONE OF WHICH WE FIND IT
NECESSARY TO DECIDE.  THAT QUESTION IS WHETHER A CHECK, MADE PAYABLE TO
THE BANKRUPT AND ENDORSED AND MAILED BY IT TO RESPONDENT MORE THAN FOUR
MONTHS BEFORE BANKRUPTCY, BUT RECEIVED BY RESPONDENT AND CREDITED UPON
THE BANKRUPT'S ANTECEDENT DEBT WITHIN THE FOUR MONTHS, IS, BY THE
APPLICABLE LAW, A TRANSFER WITHIN THE FOUR MONTHS PERIOD, WITHIN THE
MEANING OF SEC. 60A. 

IN SEPTEMBER, 1940, THE GRAVES-QUINN CORPORATION, LATER ADJUDICATED A
BANKRUPT, ENTERED INTO A CONTRACT WITH THE UNITED STATES, ACTING
THROUGH THE WAR DEPARTMENT, FOR THE CONSTRUCTION OF MILITARY HOUSING. 
THE REQUIRED PAYMENT AND PERFORMANCE BOND WAS GIVEN BY A SURETY TO THE
GOVERNMENT, AND AT THE SAME TIME, OCTOBER 2, 1940, THE SURETY TOOK FROM
THE DEBTOR AS SECURITY AN ASSIGNMENT OF ALL SUMS PAYABLE ON THE
CONTRACT. 

BEGINNING IN OCTOBER, 1940, RESPONDENT, A TRUST COMPANY, MADE LOANS
FROM TIME TO TIME TO THE DEBTOR TO FINANCE ITS OPERATIONS UNDER THE
GOVERNMENT CONTRACT.  IT WAS AGREED THAT THE LOANS WERE TO BE REPAID
FROM THE MONEY TO BE RECEIVED UNDER THE CONTRACT.  ON NOVEMBER 20,
1940, THE DEBTOR EXECUTED AND ON NOVEMBER 22 DELIVERED TO RESPONDENT A
WRITTEN ASSIGNMENT OF THESE MONEYS TO BECOME DUE.  THE ASSIGNMENT WAS
MADE WITHOUT AT THAT TIME GIVING THE NOTICES AND PROCURING THE CONSENT
OF THE SECRETARY OF WAR, WHICH, BY THE ASSIGNMENT OF CLAIMS ACT OF
OCTOBER 9, 1940, 54 STAT. 1029, AMENDING R.S. SEC. 3477, 31 U.S.C. SEC.
203, WERE REQUIRED IN ORDER TO GIVE VALIDITY TO THE ASSIGNMENT.  FN1 

ON NOVEMBER 27, 1940, AFTER THE ASSIGNMENT, THE GOVERNMENT DELIVERED
TO THE DEBTOR ITS CHECK FOR $155,865.50 AS A PROGRESS PAYMENT THEN DUE
UPON THE CONTRACT.  THE DEBTOR ON THAT DATE ENDORSED THE CHECK AND
MAILED IT TO RESPONDENT, ACCOMPANIED BY ITS OWN CHECK FOR THE SUM OF
$150,000, MADE PAYABLE TO RESPONDENT AND DRAWN UPON THE DEBTOR'S
ACCOUNT WITH RESPONDENT.  ON NOVEMBER 28TH, WHICH WAS EXACTLY FOUR
MONTHS BEFORE THE PETITION IN BANKRUPTCY WAS FILED ON MARCH 28, 1941,
RESPONDENT RECEIVED THE CHECKS AND CREDITED $150,000 OF THE PROCEEDS OF
THE GOVERNMENT CHECK ON FOUR PROMISSORY NOTES OF THE DEBTOR,
AGGREGATING $150,000. 

ON NOVEMBER 27 RESPONDENT SENT TO THE SECRETARY OF WAR ITS ASSIGNMENT
OF THE SUMS DUE AND TO BECOME DUE ON THE CONTRACT, AND ON DECEMBER 2,
GAVE THE OTHER NOTICES REQUIRED BY THE STATUTE REGULATING ASSIGNMENTS
OF CLAIMS AGAINST THE UNITED STATES.  ON DECEMBER 5, THE ASSIGNMENT WAS
APPROVED BY THE SECRETARY OF WAR, AND ON THAT DATE THE CONDITIONS OF A
VALID ASSIGNMENT, PRESCRIBED BY THE STATUTE, HAD BEEN FULLY SATISFIED. 

BY SEC. 60A OF THE BANKRUPTCY ACT "A TRANSFER  ...  OF ANY OF THE
PROPERTY OF A DEBTOR TO  ... A CREDITOR FOR OR ON ACCOUNT OF AN
ANTECEDENT DEBT, MADE OR SUFFERED BY SUCH DEBTOR WHILE INSOLVENT AND
WITHIN FOUR MONTHS BEFORE THE FILING BY OR AGAINST HIM OF THE PETITION
IN BANKRUPTCY 

..., THE EFFECT OF WHICH TRANSFER WILL BE TO ENABLE SUCH CREDITOR TO
OBTAIN A GREATER PERCENTAGE OF HIS DEBT THAN SOME OTHER CREDITOR OF THE
SAME CLASS" IS DECLARED TO BE AN UNLAWFUL PREFERENCE.  ONLY A SINGLE
ISSUE WAS RAISED BY RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, WHETHER
THE DEBTOR'S TRANSFER TO RESPONDENT OF $150,000 OF THE PROGRESS PAYMENT
BY THE GOVERNMENT WAS MADE AND PERFECTED MORE THAN FOUR MONTHS BEFORE
THE PETITION IN BANKRUPTCY WAS FILED. 

THE COURT OF APPEALS RESOLVED THIS QUESTION IN RESPONDENT'S FAVOR
UPON TWO INDEPENDENT GROUNDS.  ONE IS THAT WHILE THE ASSIGNMENT WAS NOT
PERFECTED UNTIL DECEMBER 5, 1940, WITHIN THE FOUR MONTHS PERIOD, WHEN
THE NECESSARY NOTICES HAD BEEN GIVEN AND CONSENT OBTAINED, THE
ASSIGNMENT WAS TO BE REGARDED AS THEN RETROACTIVELY VALIDATED AS OF ITS
DATE OF NOVEMBER 22, 1940, WHICH WAS MORE THAN FOUR MONTHS BEFORE THE
BANKRUPTCY.  THE OTHER GROUND IS THAT THE TRANSFER BECAME COMPLETE ON
THE DEBTOR'S ENDORSEMENT AND MAILING OF THE GOVERNMENT CHECK TO
RESPONDENT ON NOVEMBER 27, MORE THAN FOUR MONTHS BEFORE THE
BANKRUPTCY. 

AS WE SUSTAIN THE JUDGMENT ON THE SECOND GROUND WE HAVE NO OCCASION
TO CONSIDER THE FIRST OR TO EXPRESS ANY OPINION UPON IT.  FOR THE
PURPOSE OF DETERMINING THE ADEQUACY OF THE SECOND GROUND, IT IS
UNNECESSARY TO CONSIDER THE EFFECT OF THE ASSIGNMENT UPON THE RIGHT OF
RESPONDENT, AS AN ASSIGNEE, TO DEMAND PAYMENT FROM THE GOVERNMENT OR
THE ASSIGNOR OF THE AMOUNTS DUE ON THE CONTRACT.  FOR HERE THE PAYMENT
WAS MADE BY THE GOVERNMENT TO THE ASSIGNOR, WHICH PAID IT TO RESPONDENT
BEFORE THE ASSIGNMENT WAS VALIDATED BY THE REQUISITE NOTICES AND
CONSENT.  THE PROVISIONS OF THE STATUTE GOVERNING ASSIGNMENTS OF CLAIMS
AGAINST THE GOVERNMENT ARE FOR THE PROTECTION OF THE GOVERNMENT AND NOT
FOR THE REGULATION OF THE EQUITIES OF THE CLAIMANTS AS BETWEEN
THEMSELVES.  MARTIN V. NATIONAL SURETY CO., 300 U.S. 588, 594-595. 
HERE, THE PAYMENT HAVING BEEN MADE TO THE CONTRACTOR AND BY IT
DELIVERED TO RESPONDENT BEFORE THE ASSIGNMENT WAS PERFECTED, THE
GOVERNMENT'S OBLIGATION WAS DISCHARGED; AND THE SITUATION WAS NO
DIFFERENT THAN IT WOULD HAVE BEEN IF NO ASSIGNMENT HAD BEEN MADE.  THE
QUESTION IS THUS PRESENTED WHETHER THE ENDORSEMENT AND MAILING OF THE
CHECK TO RESPONDENT OPERATED AS A TRANSFER ON THE DATE OF MAILING,
RATHER THAN ON THE DATE OF ITS RECEIPT, SO THAT THE TRANSFER WAS MADE
AND PERFECTED BEFORE THE FOUR MONTHS PERIOD. 

WHAT CONSTITUTES A TRANSFER AND WHEN IT IS COMPLETE WITHIN THE
MEANING OF SEC. 60A OF THE BANKRUPTCY ACT IS NECESSARILY A FEDERAL
QUESTION, SINCE IT ARISES UNDER A FEDERAL STATUTE INTENDED TO HAVE
UNIFORM APPLICATION THROUGHOUT THE UNITED STATES.  PRUDENCE CORP. V.
GEIST, 316 U.S. 89, 95, AND CASES CITED; STEELE V. LOUISVILLE &
NASHVILLE R. CO., 323 U.S. 192, 204.  THE STATUTE PROVIDES ITS OWN
DEFINITIONS.  SECTION 1(30) OF THE BANKRUPTCY ACT DECLARES THAT
"'TRANSFER' SHALL INCLUDE THE SALE AND EVERY OTHER  ...  MODE  ...  OF
DISPOSING OF OR OF PARTING WITH PROPERTY ...  OR WITH THE POSSESSION
THEREOF  ..."  AND SEC. 60A PROVIDES THAT A "TRANSFER SHALL BE DEEMED
TO HAVE BEEN MADE AT THE TIME WHEN IT BECAME SO FAR PERFECTED THAT NO
BONA FIDE PURCHASER FROM THE DEBTOR AND NO CREDITOR COULD THEREAFTER
HAVE ACQUIRED ANY RIGHTS IN THE PROPERTY SO TRANSFERRED SUPERIOR TO THE
RIGHTS OF THE TRANSFEREE THEREIN  ..." 

IN THE ABSENCE OF ANY CONTROLLING FEDERAL STATUTE, A CREDITOR OR BONA
FIDE PURCHASER COULD ACQUIRE RIGHTS IN THE PROPERTY TRANSFERRED BY THE
DEBTOR, ONLY BY VIRTUE OF A STATE LAW.  AND HENCE SEC. 60A'S "APPARENT
COMMAND IS TO TEST THE EFFECTIVENESS OF A TRANSFER, AS AGAINST THE
TRUSTEE, BY THE STANDARDS WHICH APPLICABLE STATE LAW WOULD ENFORCE
AGAINST A GOOD FAITH PURCHASER."  CORN EXCHANGE BANK V. KLAUDER, 318
U.S. 434, 436-7.  SEE ALSO BENEDICT V. RATNER, 268 U.S. 353, 359, AND
CASES CITED.  SECTION 60A IN THIS RESPECT, AS DO NUMEROUS OTHER FEDERAL
STATUTES, SEE DAVIES WAREHOUSE CO. V. BOWLES, 321 U.S. 144, 155-156,
AND NOTE 20, AND CASES CITED, THUS ADOPTS STATE LAW AS THE RULE OF
DECISION.  THE STATE STANDARDS WHICH CONTROL THE EFFECTIVENESS OF A
TRANSFER LIKEWISE DETERMINE THE PRECISE TIME WHEN A TRANSFER IS DEEMED
TO HAVE BEEN MADE OR PERFECTED. 

AS WE HAVE SEEN, SEC. 1(30) INCLUDES IN THE TERM "TRANSFER" "EVERY
... MODE OF  ...  PARTING WITH PROPERTY  ...  OR WITH THE POSSESSION
THEREOF."  WHEN THE DEBTOR ENDORSED THE GOVERNMENT CHECK AND PLACED IT
IN THE MAILS, HE PARTED WITH THE POSSESSION AND INTENDED TO PART WITH
THE PROPERTY IN IT, AT A TIME (BEFORE THE FOUR MONTHS' PERIOD) WHEN THE
TRANSFER OF THE PROPERTY TO RESPONDENT WOULD NOT BE AN UNLAWFUL
PREFERENCE.  WHETHER THE TRANSFER WAS PERFECTED ON MAILING THE CHECK
THUS TURNS ON A QUESTION OF STATE LAW, TO WHICH THE HIGHEST COURT OF
THE STATE HAS HERE GIVEN AN AUTHORITATIVE ANSWER.  FN2  THE COURT OF
APPEALS RECOGNIZED THAT ONLY SUCH A "PARTING WITH PROPERTY" IN THE
CHECK, AS WOULD PRECLUDE THE DEBTOR FROM TRANSFERRING ANY INTEREST IN
THE CHECK TO A CREDITOR OR BONA FIDE PURCHASER, WOULD PERFECT THE
TRANSFER TO RESPONDENT WITHIN THE MEANING OF SEC. 60A.  THE COURT ALSO
RECOGNIZED THAT IN THIS RESPECT STATE LAW CONTROLLED DECISION.  IT
FOUND IT UNNECESSARY TO CONSIDER WHETHER A CREDITOR OR BONA FIDE
PURCHASER COULD HAVE OBTAINED RIGHTS IN THE $150,000, PRIOR TO THE
ENDORSEMENT AND MAILING OF THE GOVERNMENT CHECK ON NOVEMBER 27, SINCE
IT THOUGHT THAT THE "DELIVERY OF THE MONEYS TO THE ASSIGNEE WAS
COMPLETE" AT THAT TIME.  FN3  THE STATE COURT HAVING APPLIED THE PROPER
TEST UNDER SEC. 60A, WE ACCEPT ITS CONCLUSION THAT THE TRANSFER WAS
MADE MORE THAN FOUR MONTHS BEFORE BANKRUPTCY. 

PETITIONER, RELYING ON MARTIN V. NATIONAL SURETY CO., SUPRA, ARGUES
THAT AS A MATTER OF FEDERAL LAW THE SURETY COMPANY, WHICH IS A
CREDITOR, HAS RIGHTS TO THE PROCEEDS OF THE GOVERNMENT CONTRACT,
SUPERIOR TO THOSE OF RESPONDENT, AND SUFFICIENT TO REQUIRE RESPONDENT
TO RELINQUISH THE PAYMENT MADE TO IT.  IT DOES NOT APPEAR THAT THE
SURETY HAS MADE ANY SUCH CLAIM.  THE SURETY, WHOSE CLAIM, IF IT HAS
ONE, IS ADVERSE AND SUPERIOR TO THAT OF PETITIONER AND THE OTHER
CREDITORS, IS NOT A PARTY TO THIS SUIT.  THE AFFIDAVITS SUBMITTED ON
THE MOTION FOR SUMMARY JUDGMENT DO NOT FRAME ANY SUCH ISSUE, AND WE ARE
NOT POINTED TO ANY ALLEGATION IN THEM THAT ANY AMOUNT IS DUE AND OWING
FROM THE BANKRUPT TO THE SURETY.  HENCE THE CLAIM, IF IT EXISTS, IS NOT
ONE WHICH COULD BE ADJUDICATED HERE. 

IN ANY EVENT THE AFFIDAVITS FAIL TO ESTABLISH THE ASSERTED PRIORITY
OF THE SURETY OVER RESPONDENT.  THE SURETY DID NOT PERFECT ITS
ASSIGNMENT BY GIVING THE NOTICES AND PROCURING THE CONSENT REQUIRED BY
THE STATUTE.  IT DID NOT RECEIVE THE PROCEEDS OF THE CONTRACT HERE IN
QUESTION.  THEY WERE PAID TO RESPONDENT WHICH DOES NOT APPEAR TO HAVE
HAD ANY NOTICE OF THE PRIOR ASSIGNMENT OF THE SURETY.  UNDER THE
FEDERAL RULE, RESPONDENT IS ENTITLED TO RETAIN THE ASSIGNED MONEY WHICH
IT RECEIVED WITHOUT NOTICE OF THE PRIOR ASSIGNMENT TO THE SURETY. 
JUDSON V. CORCORAN, 17 HOW.  612; CF. SALEM TRUST CO. V. MANUFACTURERS'
CO., 264 U.S. 182, 192-193.  THE MARTIN CASE DOES NOT CONTROL HERE,
SINCE THE SUBSEQUENT ASSIGNEE IN THAT CASE TOOK WITH NOTICE OF AN
EARLIER ASSIGNMENT AND AS PART OF AN OBVIOUSLY FRAUDULENT SCHEME. 
THESE FACTS, WHICH WERE SUFFICIENT IN THAT CASE TO REQUIRE THAT THE
SUBSEQUENT ASSIGNEE RELINQUISH THE TRANSFERRED FUNDS, ARE LACKING
HERE.  HENCE IT IS UNNECESSARY TO CONSIDER WHETHER, AS THE COURT OF
APPEALS HELD, THE TRUSTEE IS WITHOUT STANDING TO ASSERT ALLEGED RIGHTS
OF THE SURETY.  AFFIRMED. 

FN1  SECTION 3477 OF THE REVISED STATUTES, 31 U.S.C. SEC. 203,
DECLARES THAT THE ASSIGNMENT OF ANY CLAIM UPON THE GOVERNMENT SHALL BE
"ABSOLUTELY NULL AND VOID" UNLESS MADE AFTER THE ALLOWANCE OF THE CLAIM
AND THE ISSUE OF A WARRANT FOR ITS PAYMENT.  BUT BY THE AMENDMENT OF
OCTOBER 9, 1940, IT WAS PROVIDED THAT SUCH ASSIGNMENTS OF CLAIMS IN
EXCESS OF $1,000 FOR MONEY DUE OR TO BECOME DUE FROM AN AGENCY OR
DEPARTMENT OF THE GOVERNMENT UPON CONTRACTS ENTERED INTO WITH THE
GOVERNMENT BEFORE THE DATE OF THE AMENDMENT SHOULD BE VALID WHEN MADE
TO A BANK OR TRUST COMPANY UPON NOTICE TO THE SURETY ON THE
CONTRACTOR'S BOND, AND TO CERTAIN SPECIFIED OFFICERS OF THE GOVERNMENT,
INCLUDING THE CONTRACTING OFFICER OR HEAD OF THE DEPARTMENT CONCERNED,
AND UPON CONSENT OF THE HEAD OF THAT AGENCY OR DEPARTMENT. 

FN2  THE ENDORSEMENT AND MAILING OF THE GOVERNMENT CHECK TOOK PLACE
IN BOSTON, MASSACHUSETTS.  THERE IS NO CONTENTION THAT THE SUBSTANTIVE
LAW OF MASSACHUSETTS DETERMINES THE LEGAL EFFECT OF THESE ACTS, NOR
THAT THAT LAW DIFFERS FROM THE LAW OF NEW YORK.  HENCE IT IS
UNNECESSARY TO DECIDE WHETHER THE PROBLEM OF CHOICE OF LAW UNDER SEC.
60A IS TO BE RESOLVED BY FEDERAL STANDARDS, OR WHETHER THAT SECTION
ALSO ADOPTS THE CONFLICT OF LAWS RULES OF THE FORUM.  IF THE FORMER BE
THE CASE, IT WOULD BE NECESSARY FOR THIS COURT TO DETERMINE WHETHER THE
NEW YORK COURT OF APPEALS SHOULD HAVE FOLLOWED MASSACHUSETTS LAW; AND
IF SO THIS COURT WOULD BE UNDER THE DUTY OF MAKING AN INDEPENDENT
INVESTIGATION OF THE MASSACHUSETTS LAW.  CF. BARBER V. BARBER, 323 U.S.
77, 81; ADAM V. SAENGER, 303 U.S. 59, 64, AND CASES CITED.  BUT IF THE
STATUTE ADOPTS THE LOCAL CONFLICT OF LAWS RULES, THE PRESENT CASE WOULD
TURN ON NEW YORK LAW, EVEN THOUGH THE APPLICABLE RULE ADOPTED BY NEW
YORK WERE THE SAME AS THE SUBSTANTIVE LAW OF MASSACHUSETTS.  FOR "EVEN
WHERE THE STATE OF THE FORUM ADOPTS AND APPLIES AS ITS OWN THE LAW OF
THE STATE WHERE THE INJURY WAS INFLICTED, THE EXTENT TO WHICH IT SHALL
APPLY IN ITS OWN COURTS A RULE OF LAW OF ANOTHER STATE IS ITSELF A
QUESTION OF LOCAL LAW OF THE FORUM."  SEE MAGNOLIA PETROLEUM CO. V.
HUNT, 320 U.S. 430, 445, AND CASES CITED. 

FN3  THE COURT OF APPEALS SAID, 292 N.Y. 347, 358-359:  "THE TEST
UNDER THE STATUTE AS AMENDED IN 1938 IS, AS I HAVE SAID, WHETHER NO
'BONA FIDE PURCHASER FROM THE DEBTOR AND NO CREDITOR COULD THEREAFTER
HAVE ACQUIRED ANY RIGHTS IN THE PROPERTY SO TRANSFERRED SUPERIOR TO THE
RIGHTS OF THE TRANSFEREE THEREIN.'  THE 'STANDARDS WHICH APPLICABLE
STATE LAW WOULD ENFORCE AGAINST A GOOD FAITH PURCHASERS' OR AGAINST A
CREDITOR MUST BE APPLIED HERE  ....  IT IS UNNECESSARY TO DECIDE  ...
WHETHER A PURCHASER FOR VALUE OR A CREDITOR COULD HAVE OBTAINED ANY
RIGHTS IN THE MONEYS UNTIL THEY WERE PAID TO THE CONTRACTOR AND THE
CHECK MAILED TO THE (RESPONDENT) ON NOVEMBER 27TH.  IT SEEMS CLEAR THAT
AT LEAST FROM THAT TIME THE TRANSFER WAS PERFECTED  .... (FROM) THE
TIME THAT THE CHECK WAS DEPOSITED IN THE MAIL  ..., DELIVERY OF THE
MONEYS TO THE ASSIGNEE WAS COMPLETE." 

MR. JUSTICE BLACK DISSENTS. 
..END :




U.S. V. GENERAL MORTORS CORP., 323 U.S. 373 


NO. 76.  ARGUED NOVEMBER 16, 17, 1944.  - DECIDED JANUARY 8, 1945.  -
140 F.2D 873, AFFIRMED. 


IN PROCEEDINGS TO DETERMINE THE MEASURE OF JUST COMPENSATION REQUIRED
BY THE FIFTH AMENDMENT TO BE MADE TO A LEASEHOLDER WHERE THE GOVERNMENT
HAS TAKEN, FOR PART OF THE UNEXPIRED TERM OF A LEASE, THE OCCUPANCY OF
A WAREHOUSE WHICH WAS EQUIPPED FOR AND USED IN THE LEASEHOLDER'S
BUSINESS, HELD: 

1.  THE VALUE OF THE OCCUPANCY IS TO BE ASCERTAINED NOT BY TREATING
WHAT HAS BEEN TAKEN AS AN EMPTY WAREHOUSE TO BE LEASED FOR A LONG TERM,
BUT BY WHAT WOULD BE THE MARKET RENTAL VALUE OF THE BUILDING ON A LEASE
BY THE LONG-TERM TENANT TO A TEMPORARY OCCUPANT.  P. 381. 

THE LONG-TERM RENTAL VALUE IS ADMISSIBLE AS EVIDENCE OF THE MARKET
RENTAL VALUE OF THE TEMPORARY OCCUPANCY. 

2.  THE REASONABLE COST OF REMOVING THE LEASEHOLDER'S STORED PROPERTY
AND PREPARING THE SPACE FOR OCCUPANCY BY THE GOVERNMENT - INCLUDING
LABOR, MATERIALS, TRANSPORTATION, AND POSSIBLY THE COST OF TEMPORARY
STORAGE AND RETURNING THE GOODS TO THE PREMISES - MAY BE PROVED, NOT AS
INDEPENDENT ITEMS OF DAMAGE BUT AS ELEMENTS AFFECTING THE PRICE WHICH
WOULD BE ASKED AND PAID FOR TEMPORARY OCCUPANCY.  P. 383. 

3.  THE LEASEHOLDER IS ENTITLED TO COMPENSATION FOR THE DESTRUCTION,
DAMAGE OR DEPRECIATION IN VALUE OF FIXTURES AND PERMANENT EQUIPMENT,
NOT AS PART OF BUT IN ADDITION TO THE VALUE OF THE OCCUPANCY.  P. 383. 

UNITED STATES V. GENERAL MOTORS CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 322 U.S. 722, TO REVIEW A JUDGMENT WHICH, ON AN APPEAL BY
THE COMPANY, REVERSED A JUDGMENT IN A CONDEMNATION PROCEEDING. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS ONE OF FIRST IMPRESSION IN THIS COURT.  IT PRESENTS A
QUESTION ON WHICH THE DECISIONS OF FEDERAL COURTS ARE IN CONFLICT.  FN1
THE PROBLEM INVOLVED IS THE ASCERTAINMENT OF THE JUST COMPENSATION
REQUIRED BY THE FIFTH AMENDMENT OF THE CONSTITUTION, WHERE, IN THE
EXERCISE OF THE POWER OF EMINENT DOMAIN, TEMPORARY OCCUPANCY OF A
PORTION OF A LEASED BUILDING IS TAKEN FROM A TENANT WHO HOLDS UNDER A
LONG TERM LEASE. 

1942,  FN2  PROVIDES, IN PART, THAT THE SECRETARY OF WAR MAY CAUSE
PROCEEDINGS TO BE INSTITUTED, IN ANY COURT HAVING JURISDICTION, TO
ACQUIRE, BY CONDEMNATION, ANY REAL PROPERTY, TEMPORARY USE THEREOF, OR
OTHER INTEREST THEREIN WHICH SHALL BE DEEMED NECESSARY FOR MILITARY OR
OTHER WAR PURPOSES.  THE ACT PROVIDES FURTHER THAT, ON OR AFTER THE
FILING OF THE CONDEMNATION PETITION, IMMEDIATE POSSESSION MAY BE TAKEN
AND THE PROPERTY MAY BE OCCUPIED, USED, OR IMPROVED. 

IN 1928 THE RESPONDENT LEASED A ONE-STORY WAREHOUSE BUILDING IN
CHICAGO FOR A TERM OF TWENTY YEARS, FOR THE STORAGE AND DISTRIBUTION OF
AUTOMOBILE PARTS, AND FITTED THE PREMISES FOR THIS USE.  IN 1942 THE
UNITED STATES BECAME SUBTENANTS OF A PORTION OF THE FLOOR SPACE IN THE
BUILDING.  THERE REMAINED IN THE POSSESSION OF THE RESPONDENT SOME
93,000 SQUARE FEET.  IN THE SPRING OF 1942 THE SECRETARY OF WAR
REQUESTED THE ATTORNEY GENERAL TO INSTITUTE PROCEEDINGS FOR
CONDEMNATION OF THE OCCUPANCY OF THE REMAINING SPACE FOR A TERM ENDING
JUNE 30, 1943.  PURSUANT TO THE REQUEST, THE UNITED STATES, JUNE 8,
1942, FILED A PETITION IN THE DISTRICT COURT FOR AN ORDER CONDEMNING
SUCH TEMPORARY USE AND GRANTING THE GOVERNMENT THE RIGHT OF IMMEDIATE
POSSESSION, USE, AND IMPROVEMENT FOR MILITARY PURPOSES.  ON THE SAME
DAY THE COURT ENTERED AN ORDER DECLARING THE PROPERTY CONDEMNED FOR A
TERM ENDING JUNE 30, 1943, AND GRANTING THE UNITED STATES THE RIGHT OF
IMMEDIATE POSSESSION.  THE ORDER WAS SERVED ON THE RESPONDENT AND
SHORTLY THEREAFTER IT BEGAN REMOVING ITS PERSONAL PROPERTY FROM THE
AREA AND DISMANTLING AND DEMOLISHING BINS AND FIXTURES, SO THAT THE
SPACE WAS AVAILABLE FOR GOVERNMENT USE BY JUNE 19. 

AT THE TRIAL FOR THE ASCERTAINMENT OF THE COMPENSATION DUE THE
RESPONDENT, THE ATTORNEY FOR THE GOVERNMENT, AFTER PROVING THE
AUTHORITY FOR THE TAKING, CALLED A REAL ESTATE EXPERT WHO GAVE HIS
OPINION THAT THE FAIR RENTAL VALUE OF THE SPACE WAS 35 CENTS PER YEAR
PER SQUARE FOOT.  THE GOVERNMENT THEN RESTED. 

THE RESPONDENT CALLED EXPERT WITNESSES WHO TESTIFIED THAT, IN THEIR
OPINION, THE FAIR RENTAL VALUE WAS 43 CENTS PER SQUARE FOOT, AND A
WITNESS WAS PERMITTED TO TESTIFY THAT THE RENT PAID BY THE RESPONDENT
TO ITS LANDLORD HAD VARIED DURING THE YEARS 1940 TO 1942, INCLUSIVE,
FROM 41.9 TO 43.24 CENTS. 

THE RESPONDENT THEN OFFERED TO PROVE VARIOUS ITEMS OF COST CAUSED BY
REMOVAL OF THE CONTENTS.  THESE CONSISTED, INTER ALIA, OF SALARIES OF
EMPLOYES ENGAGED IN THE WORK, COMPENSATION DUE EMPLOYES PUT OUT OF WORK
BY THE REMOVAL, WAGES OF JANITORS AND WATCHMEN FOR THE PROTECTION OF
THE BUILDING DURING THE MOVING, THE COST OF SHIPPING THE CONTENTS OF
THE BUILDING TO OTHER POINTS, COMPENSATION TO EXECUTIVES AND EMPLOYES
WHOSE TIME WAS REQUIRED IN CONNECTION WITH THE MOVING OF THE PROPERTY,
FREIGHT AND HAULAGE CHARGES, RENTAL OF STORAGE SPACE FOR ARTICLES MOVED
OUT, THE VALUE OF THE BIN EQUIPMENT DESTROYED AND THE ESTIMATED
ORIGINAL COST OF THE INSTALLATION OF FIXED EQUIPMENT COMPLETELY LOST AS
A RESULT OF THE DISMANTLING OF THE AREA.  THE COURT SUSTAINED AN
OBJECTION TO THE OFFER.  THE JURY AWARDED COMPENSATION IN A LUMP SUM AT
A RATE OF APPROXIMATELY 40 CENTS PER SQUARE FOOT FOR THE TERM OF ONE
YEAR.  FN3 

THE RESPONDENT APPEALED TO THE CIRCUIT COURT OF APPEALS, ASSIGNING AS
ERROR THE REFUSAL OF ITS OFFER OF PROOF.  THAT COURT MIGHT HAVE
SUSTAINED THE DISTRICT COURT'S RULING ON THE GROUND THAT RESPONDENT WAS
NOT ENTITLED TO PROVE CERTAIN OF THE EXPENDITURES AND LOSSES IN
QUESTION AS INDEPENDENT ITEMS OF DAMAGES ADDITIONAL TO THE VALUE OF THE
INTEREST TAKEN BY CONDEMNATION.  THE COURT, HOWEVER, CONSIDERING
SUBSTANCE RATHER THAN FORM, BY A VOTE OF 2 TO 1, REVERSED THE JUDGMENT,
HOLDING THAT ITEMS OF ACTUAL LOSS WHICH WERE THE DIRECT AND NECESSARY
RESULT OF THE RESPONDENT'S EXCLUSION FROM THE LEASED AREA MIGHT BE
PROVED, NOT AS INDEPENDENT ITEMS BUT AS ELEMENTS TO BE CONSIDERED IN
ARRIVING AT THE SUM WHICH WOULD BE JUST COMPENSATION FOR THE INTEREST
WHICH THE GOVERNMENT CONDEMNED.  THE CAUSE WAS REMANDED FOR TRIAL IN
ACCORDANCE WITH THE RULING OF THE CIRCUIT COURT OF APPEALS.  WE THINK
WE SHOULD REVIEW THAT RULING INASMUCH AS IT IS FUNDAMENTAL TO THE
FURTHER CONDUCT OF THE CASE.  THE CORRECTNESS OF THE DECISION OF THE
COURT BELOW DEPENDS UPON THE SCOPE AND MEANING OF THE CONSTITUTIONAL
PROVISION:  "NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE,
WITHOUT JUST COMPENSATION," WHICH CONDITIONS THE OTHERWISE UNRESTRAINED
POWER OF THE SOVEREIGN TO EXPROPRIATE, WITHOUT COMPENSATION, WHATEVER
IT NEEDS. 

THE CRITICAL TERMS ARE "PROPERTY," "TAKEN" AND "JUST COMPENSATION." 
IT IS CONCEIVABLE THAT THE FIRST WAS USED IN ITS VULGAR AND UNTECHNICAL
SENSE OF THE PHYSICAL THING WITH RESPECT TO WHICH THE CITIZEN EXERCISES
RIGHTS RECOGNIZED BY LAW.  ON THE OTHER HAND, IT MAY HAVE BEEN EMPLOYED
IN A MORE ACCURATE SENSE TO DENOTE THE GROUP OF RIGHTS INHERING IN THE
CITIZEN'S RELATION TO THE PHYSICAL THING, AS THE RIGHT TO POSSESS, USE
AND DISPOSE OF IT.  IN POINT OF FACT, THE CONSTRUCTION GIVEN THE PHRASE
HAS BEEN THE LATTER.  FN4  WHEN THE SOVEREIGN EXERCISES THE POWER OF
EMINENT DOMAIN IT SUBSTITUTES ITSELF IN RELATION TO THE PHYSICAL THING
IN QUESTION IN PLACE OF HIM WHO FORMERLY BORE THE RELATION TO THAT
THING, WHICH WE DENOMINATE OWNERSHIP.  IN OTHER WORDS, IT DEALS WITH
WHAT LAWYERS TERM THE INDIVIDUAL'S "INTEREST" IN THE THING IN
QUESTION.  THAT INTEREST MAY COMPRISE THE GROUP OF RIGHTS FOR WHICH THE
SHORTHAND TERM IS "A FEE SIMPLE" OR IT MAY BE THE INTEREST KNOWN AS AN
"ESTATE OR TENANCY FOR YEARS," AS IN THE PRESENT INSTANCE.  THE
CONSTITUTIONAL PROVISION IS ADDRESSED TO EVERY SORT OF INTEREST THE
CITIZEN MAY POSSESS. 

IN ITS PRIMARY MEANING, THE TERM "TAKEN" WOULD SEEM TO SIGNIFY
SOMETHING MORE THAN DESTRUCTION, FOR IT MIGHT WELL BE CLAIMED THAT ONE
DOES NOT TAKE WHAT HE DESTROYS.  BUT THE CONSTRUCTION OF THE PHRASE HAS
NOT BEEN SO NARROW.  THE COURTS HAVE HELD THAT THE DEPRIVATION OF THE
FORMER OWNER RATHER THAN THE ACCRETION OF A RIGHT OR INTEREST TO THE
SOVEREIGN CONSTITUTES THE TAKING.  GOVERNMENTAL ACTION SHORT OF
ACQUISITION OF TITLE OR OCCUPANCY HAS BEEN HELD, IF ITS EFFECTS ARE SO
COMPLETE AS TO DEPRIVE THE OWNER OF ALL OR MOST OF HIS INTEREST IN THE
SUBJECT MATTER, TO AMOUNT TO A TAKING.  FN5 

BUT IT IS TO BE OBSERVED THAT WHETHER THE SOVEREIGN SUBSTITUTES
ITSELF AS OCCUPANT IN PLACE OF THE FORMER OWNER, OR DESTROYS ALL HIS
EXISTING RIGHTS IN THE SUBJECT MATTER, THE FIFTH AMENDMENT CONCERNS
ITSELF SOLELY WITH THE "PROPERTY," I.E., WITH THE OWNER'S RELATION AS
SUCH TO THE PHYSICAL THING AND NOT WITH OTHER COLLATERAL INTERESTS
WHICH MAY BE INCIDENT TO HIS OWNERSHIP. 

IN THE LIGHT OF THESE PRINCIPLES IT HAS BEEN HELD THAT THE
COMPENSATION TO BE PAID IS THE VALUE OF THE INTEREST TAKEN.  ONLY IN
THE SENSE THAT HE IS TO RECEIVE SUCH VALUE IS IT TRUE THAT THE OWNER
MUST BE PUT IN AS GOOD POSITION PECUNIARILY AS IF HIS PROPERTY HAD NOT
BEEN TAKEN.  IN THE ORDINARY CASE, FOR WANT OF A BETTER STANDARD,
MARKET VALUE, SO CALLED, IS THE CRITERION OF THAT VALUE.  IN SOME CASES
THIS CRITERION CANNOT BE USED EITHER BECAUSE THE INTEREST CONDEMNED HAS
NO MARKET VALUE OR BECAUSE, IN THE CIRCUMSTANCES, MARKET VALUE
FURNISHES AN INAPPROPRIATE MEASURE OF ACTUAL VALUE. 

IN THE TRIAL OF THIS CASE THE PARTIES PRESENTED EVIDENCE OF THE
MARKET VALUE OF THE OCCUPANCY OF BARE FLOOR SPACE FOR THE TERM TAKEN. 
THE RESPONDENT'S OFFER TO PROVE ADDITIONAL ITEMS FOR WHICH IT CLAIMED
COMPENSATION WAS OVERRULED.  THE AWARD WAS THEREFORE LIMITED TO THE
MARKET VALUE OF THE OCCUPANCY OF A VACANT BUILDING.  THE QUESTION IS
WHETHER ANY OTHER ELEMENT OF VALUE INHERED IN THE INTEREST TAKEN. 

THE SOVEREIGN ORDINARILY TAKES THE FEE.  THE RULE IN SUCH A CASE IS
THAT COMPENSATION FOR THAT INTEREST DOES NOT INCLUDE FUTURE LOSS OF
PROFITS, THE EXPENSE OF MOVING REMOVABLE FIXTURES AND PERSONAL PROPERTY
FROM THE PREMISES, THE LOSS OF GOOD-WILL WHICH INHERES IN THE LOCATION
OF THE LAND, OR OTHER LIKE CONSEQUENTIAL LOSSES WHICH WOULD ENSUE THE
SALE OF THE PROPERTY TO SOMEONE OTHER THAN THE SOVEREIGN.  NO DOUBT ALL
THESE ELEMENTS WOULD BE CONSIDERED BY AN OWNER IN DETERMINING WHETHER,
AND AT WHAT PRICE, TO SELL.  NO DOUBT, THEREFORE, IF THE OWNER IS TO BE
MADE WHOLE FOR THE LOSS CONSEQUENT ON THE SOVEREIGN'S SEIZURE OF HIS
PROPERTY, THESE ELEMENTS SHOULD PROPERLY BE CONSIDERED.  BUT THE COURTS
HAVE GENERALLY HELD THAT THEY ARE NOT TO BE RECKONED AS PART OF THE
COMPENSATION FOR THE FEE TAKEN BY THE GOVERNMENT.  FN6  WE ARE NOT TO
BE TAKEN AS DEPARTING FROM THE RULE THEY HAVE LAID DOWN, WHICH WE THINK
SOUND.  EVEN WHERE STATE CONSTITUTIONS COMMAND THAT COMPENSATION BE
MADE FOR PROPERTY "TAKEN OR DAMAGED" FOR PUBLIC USE, AS MANY DO, IT HAS
GENERALLY BEEN HELD THAT THAT WHICH IS TAKEN OR DAMAGED IS THE GROUP OF
RIGHTS WHICH THE SOCALLED OWNER EXERCISES IN HIS DOMINION OF THE
PHYSICAL THING, AND THAT DAMAGE TO THOSE RIGHTS OF OWNERSHIP DOES NOT
INCLUDE LOSSES TO HIS BUSINESS OR OTHER CONSEQUENTIAL DAMAGE.  FN7 

THE QUESTION POSED IN THIS CASE THEN IS, SHALL A DIFFERENT MEASURE OF
COMPENSATION APPLY WHERE THAT WHICH IS TAKEN IS A RIGHT OF TEMPORARY
OCCUPANCY OF A BUILDING EQUIPPED FOR THE CONDEMNEE'S BUSINESS, FILLED
WITH HIS COMMODITIES, AND PRESUMABLY TO BE REOCCUPIED AND USED, AS
BEFORE, TO THE END OF THE LEASE TERM ON THE TERMINATION OF THE
GOVERNMENT'S USE?  THE RIGHT TO OCCUPY, FOR A DAY, A MONTH, A YEAR, OR
A SERIES OF YEARS, IN AND OF ITSELF AND WITHOUT REFERENCE TO THE ACTUAL
USE, NEEDS, OR COLLATERAL ARRANGEMENTS OF THE OCCUPIER, HAS A VALUE. 
THE VALUE OF THAT INTEREST IS AFFECTED, OF COURSE, BY THE KIND OF
BUILDING TO BE OCCUPIED, BY ITS LOCATION, BY ITS SUSCEPTIBILITY TO
VARIOUS USES, BY ITS CONVENIENCES, OR THE REVERSE, AND BY MANY OTHER
FACTORS WHICH GO TO SET THE VALUE OF THE OCCUPANCY.  THESE WERE TAKEN
INTO CONSIDERATION IN FIXING THE MARKET VALUE OF THE FLOOR SPACE TAKEN,
AS IF THAT SPACE WERE BARE AND IN THE MARKET FOR RENT. 

WHILE, AS HAS BEEN SAID, THE GOVERNMENT'S POWER TO TAKE FOR A SHORT
PERIOD, AND TO DEMAND POSSESSION OF THE SPACE TAKEN FREED OF ALL
EQUIPMENT OR PERSONAL PROPERTY THEREIN, CANNOT BE DENIED, THREE
QUESTIONS EMERGE WHICH ARE NOT PRESENTED WHEN WHAT IS TAKEN IS A FEE
INTEREST IN LAND.  THEY ARE:  1.  IS THE LONG-TERM RENTAL VALUE THE
SOLE MEASURE OF THE VALUE OF SUCH SHORT-TERM OCCUPANCY CARVED OUT OF
THE LONG TERM?  2.  IF THE TAKING NECESSITATES THE REMOVAL OF PERSONAL
PROPERTY STORED IN THE BUILDING IN CONFORMITY TO THE NORMAL USE OF SUCH
A BUILDING, IS THE NECESSARY EXPENSE OF THE REMOVAL TO BE CONSIDERED IN
COMPUTING COMPENSATION?  3.  IF A TENANT'S EQUIPMENT AND FIXTURES ARE
TAKEN OR DESTROYED, OR REDUCED IN VALUE, BY THE GOVERNMENT'S ACTION,
MUST IT COMPENSATE FOR THE VALUE THUS TAKEN OR DESTROYED IN ADDITION TO
PAYING THE RENTAL VALUE OF THE OCCUPANCY? 

1.  IF THE GOVERNMENT NEED ONLY PAY THE LONG-TERM RENTAL OF AN EMPTY
BUILDING FOR A TEMPORARY TAKING FROM THE LONG-TERM TENANT A WAY WILL
HAVE BEEN FOUND TO DEFEAT THE FIFTH AMENDMENT'S MANDATE FOR JUST
COMPENSATION IN ALL CONDEMNATIONS EXCEPT THOSE IN WHICH THE
CONTEMPLATED PUBLIC USE REQUIRES THE TAKING OF THE FEE SIMPLE TITLE. 
IN ANY CASE WHERE THE GOVERNMENT MAY NEED PRIVATE PROPERTY, IT CAN
DEVISE ITS CONDEMNATION SO AS TO SPECIFY A TERM OF A DAY, A MONTH, OR A
YEAR, WITH OPTIONAL CONTINGENT RENEWAL FOR INDEFINITE PERIODS, AND WITH
THE CERTAINTY THAT IT NEED PAY THE OWNER ONLY THE LONG-TERM RENTAL RATE
OF AN UNOCCUPIED BUILDING FOR THE SHORT TERM PERIOD, IF THE PREMISES
ARE ALREADY UNDER LEASE OR, IF NOT, THEN A MARKET RENTAL FOR WHATEVER
MINIMUM TERM IT MAY CHOOSE TO SELECT, FIXED ACCORDING TO THE USUAL
MODES OF ARRIVING AT RENTAL RATES.  AND THIS, THOUGH THE OWNER MAY BE
DAMAGED BY THE OUSTER TEN, A SCORE, OR PERHAPS A HUNDRED TIMES THE
AMOUNT FOUND DUE HIM AS "FAIR RENTAL VALUE."  IN THE PRESENT CASE THE
RESPONDENT OFFERED TO PROVE THAT THE ACTUAL EXPENSE OF MOVING ITS
PROPERTY EXCEEDED SEC. 46,000, AND THE LOSS DUE TO DESTRUCTION AND
REMOVAL OF FIXTURES AND FIXED EQUIPMENT EXCEEDED $31,000, IN ADDITION
TO ITS CONTINUING LIABILITY TO PAY RENT FOR THE YEAR OF APPROXIMATELY
$40,000; WHEREAS THE AWARD WAS $38,597.86.  IF SUCH A RESULT BE
SUSTAINED WE CAN SEE NO LIMIT TO UTILIZATION OF SUCH A DEVICE; AND, IF
THERE IS NONE, THE AMENDMENT'S GUARANTY BECOMES, NOT ONE OF JUST
COMPENSATION FOR WHAT IS TAKEN, BUT AN INSTRUMENT OF CONFISCATION
FICTIONALIZING "JUST COMPENSATION" INTO SOME SUCH CONCEPT AS THE COMMON
LAW IDEA OF A PEPPERCORN IN THE LAW OF SEIZIN OR THE LATER ONE OF
"VALUE RECEIVED" IN THAT OF CONTRACTUAL CONSIDERATION.  IF THE VALUE TO
BE PAID IN A CASE LIKE THE PRESENT IS CONFINED, AS MATTER OF LAW, TO
THE LONG-TERM RENTAL OF BARE SPACE, THE OWNER WILL NOT BE SECURE,
EITHER IN HIS RIGHTS OF PROPERTY, OR IN HIS RIGHT TO JUST COMPENSATION
AS A SUBSTITUTE FOR IT, WHEN THE GOVERNMENT TAKES IT FOR THE USE AND
BENEFIT OF ALL.  HERE THE USE OF A WAREHOUSE FOR A SHORT TIME WAS
TAKEN.  THE PROPERTY MIGHT HAVE BEEN THE GENERAL MOTORS FACTORY.  OR
SEVERAL PLANTS.  OR A MODEST STORE OR HOME.  WHATEVER OF PROPERTY THE
CITIZEN HAS THE GOVERNMENT MAY TAKE.  WHEN IT TAKES THE PROPERTY, THAT
IS, THE FEE, THE LEASE, WHATEVER HE MAY OWN, TERMINATING ALTOGETHER HIS
INTEREST, UNDER THE ESTABLISHED LAW IT MUST PAY HIM FOR WHAT IS TAKEN,
NOT MORE; AND HE MUST STAND WHATEVER INDIRECT OR REMOTE INJURIES ARE
PROPERLY COMPREHENDED WITHIN THE MEANING OF "CONSEQUENTIAL DAMAGE" AS
THAT CONCEPTION HAS BEEN DEFINED IN SUCH CASES.  EVEN SO THE
CONSEQUENCES OFTEN ARE HARSH.  FOR THESE WHATEVER REMEDY MAY EXIST LIES
WITH CONGRESS. 

IT IS ALTOGETHER ANOTHER MATTER WHEN THE GOVERNMENT DOES NOT TAKE HIS
ENTIRE INTEREST, BUT BY THE FORM OF ITS PROCEEDING CHOPS IT INTO BITS,
OF WHICH IT TAKES ONLY WHAT IT WANTS, HOWEVER FEW OR MINUTE, AND LEAVES
HIM HOLDING THE REMAINDER, WHICH MAY THEN BE ALTOGETHER USELESS TO HIM,
REFUSING TO PAY MORE THAN THE "MARKET RENTAL VALUE" FOR THE USE OF THE
CHIPS SO CUT OFF.  THIS IS NEITHER THE "TAKING" NOR THE "JUST
COMPENSATION" THE FIFTH AMENDMENT CONTEMPLATES.  THE VALUE OF SUCH AN
OCCUPANCY IS TO BE ASCERTAINED, NOT BY TREATING WHAT IS TAKEN AS AN
EMPTY WAREHOUSE TO BE LEASED FOR A LONG TERM, BUT WHAT WOULD BE THE
MARKET RENTAL VALUE OF SUCH A BUILDING ON A LEASE BY THE LONG-TERM
TENANT TO THE TEMPORARY OCCUPIER.  THE CASE SHOULD BE RETRIED ON THIS
PRINCIPLE.  IN SO RULING WE DO NOT SUGGEST THAT THE LONG-TERM RENTAL
VALUE MAY NOT BE SHOWN AS BEARING ON THE MARKET RENTAL VALUE OF THE
TEMPORARY OCCUPANCY TAKEN.  IT MAY BE EVIDENCE OF THE VALUE OF WHAT IS
TAKEN BUT IT IS NOT THE CRITERION OF VALUE IN SUCH A CASE AS THIS. 

2.  SOME OF THE ELEMENTS WHICH WOULD CERTAINLY AND DIRECTLY AFFECT
THE MARKET PRICE AGREED UPON BY A TENANT AND A SUBLESSEE IN SUCH AN
EXTRAORDINARY AND UNUSUAL TRANSACTION WOULD BE THE REASONABLE COST OF
MOVING OUT THE PROPERTY STORED AND PREPARING THE SPACE FOR OCCUPANCY BY
THE SUBTENANT.  THAT COST WOULD INCLUDE LABOR, MATERIALS, AND
TRANSPORTATION.  AND IT MIGHT ALSO INCLUDE THE STORAGE OF GOODS AGAINST
THEIR SALE OR THE COST OF THEIR RETURN TO THE LEASED PREMISES.  SUCH
ITEMS MAY BE PROVED, NOT AS INDEPENDENT ITEMS OF DAMAGE BUT TO AID IN
THE DETERMINATION OF WHAT WOULD BE THE USUAL - THE MARKET - PRICE WHICH
WOULD BE ASKED AND PAID FOR SUCH TEMPORARY OCCUPANCY OF THE BUILDING
THEN IN USE UNDER A LONG-TERM LEASE.  THE RESPONDENT OFFERED DETAILED
PROOF OF AMOUNTS ACTUALLY AND NECESSARILY PAID FOR THESE PURPOSES.  WE
THINK THAT THE PROOF SHOULD HAVE BEEN RECEIVED FOR THE PURPOSE AND WITH
THE LIMITATION INDICATED.  FN8  PROOF OF SUCH COSTS AS AFFECTING MARKET
VALUE IS TO BE DISTINGUISHED FROM PROOF OF VALUE PECULIAR TO THE
RESPONDENT, OR THE VALUE OF GOOD-WILL OR OF INJURY TO THE BUSINESS OF
THE RESPONDENT WHICH, IN THIS CASE, AS IN THE CASE OF THE CONDEMNATION
OF A FEE, MUST BE EXCLUDED FROM THE RECKONING. 

3.  FOR FIXTURES AND PERMANENT EQUIPMENT DESTROYED OR DEPRECIATED IN
VALUE BY THE TAKING, THE RESPONDENT IS ENTITLED TO COMPENSATION.  AN
OWNER'S RIGHTS IN THESE ARE NO LESS PROPERTY WITHIN THE MEANING OF THE
FIFTH AMENDMENT THAN HIS RIGHTS IN LAND AND THE STRUCTURES THEREON
ERECTED.  AND IT MATTERS NOT WHETHER THEY WERE TAKEN OVER BY THE
GOVERNMENT OR DESTROYED, SINCE, AS HAS BEEN SAID, DESTRUCTION IS
TANTAMOUNT TO TAKING.  FN9  THIS IS TRUE WHETHER THE FIXTURES AND
EQUIPMENT WOULD BE CONSIDERED SUCH AS BETWEEN VENDOR AND VENDEE,  FN10
OR AS A TENANT'S TRADE FIXURES.  FN11  IN RESPECT OF THEM, THE TENANT
WHOSE OCCUPANCY IS TAKEN IS ENTITLED TO COMPENSATION FOR DESTRUCTION,
DAMAGE OR DEPRECIATION IN VALUE.  FN12  AND SINCE THEY ARE PROPERTY
DISTINCT FROM THE RIGHT OF OCCUPANCY SUCH COMPENSATION SHOULD BE
AWARDED NOT AS PART OF BUT IN ADDITION TO THE VALUE OF THE OCCUPANCY AS
SUCH.  AFFIRMED. 

FN1  COMPARE WITH THE DECISION BELOW, 140 F.2D 873, GERSHON BROS. CO.
V. UNITED STATES, 284 F. 849; NATIONAL LABORATORY & SUPPLY CO. V.
UNITED STATES, 275 F. 218; UNITED STATES V. ENTIRE FIFTH FLOOR, 54
F.SUPP.  258; UNITED STATES V. IMPROVED PREMISES, 54 F.SUPP.  469;
UNITED STATES V. CERTAIN PARCELS OF LAND, 54 F.SUPP.  561; UNITED
STATES V. 0.64 ACRES OF LAND, 54 F.SUPP.  562; UNITED STATES V.
BUILDING KNOWN AS 651 BRANNAN STREET, 55 F.SUPP.  667; WM. WRIGLEY JR.
CO. V. UNITED STATES, 75 CT. CLS. 569; HOWARD CO. V. UNITED STATES, 81
CT. CLS. 646. 

FN2  C. 199, 56 STAT. 176, 177, 50 U.S.C. APP. SEC. 632. 

FN3  AFTER JUDGMENT HAD BEEN ENTERED ON THE VERDICTS, THE COURT, ON
THE GOVERNMENT'S MOTION, OPENED THE JUDGMENT AND PERMITTED THE
GOVERNMENT TO AMEND ITS PETITION FOR CONDEMNATION TO DESCRIBE THE
INTEREST TAKEN AS "A TERM FOR YEARS  ...  EXPIRING JUNE 30, 1943,
RENEWABLE FOR ADDITIONAL YEARLY PERIODS THEREAFTER  ...  AT THE
ELECTION OF THE SECRETARY OF WAR," ON SPECIFIED NOTICE OF INTENT SO TO
RENEW.  THE COURT THEN ENTERED A NEW JUDGMENT AWARDING THE AMOUNT OF
THE VERDICT TO RESPONDENT AND RETAINING JURISDICTION FOR THE
ASCERTAINMENT OF FURTHER COMPENSATION FOR DAMAGE TO THE PROPERTY, IF
ANY, BEYOND ORDINARY WEAR AND TEAR, DUE TO THE GOVERNMENT'S OCCUPANCY. 
WE DO NOT UNDERSTAND THAT THESE FACTS ALTER THE QUESTION BEFORE US.
THE CASE NOW PRESENTED INVOLVES ONLY THE ORIGINAL TAKING FOR ONE YEAR. 
IF, ON REMAND, THE CASE BE TREATED AS INVOLVING THE GOVERNMENT'S OPTION
OF RENEWAL, THE ADDITIONAL VALUE OF THAT INTEREST MUST BE INCLUDED IN
THE COMPENSATION AWARDED.  WE EXPRESS NO OPINION AS TO THE GOVERNMENT'S
POWER TO CONDEMN SERVICE, SUCH AS THE FURNISHING OF HEAT AND LIGHT. 

FN4  LEWIS, EMINENT DOMAIN, 3D ED., SECS. 63, 64. 

FN5  SEE, E.G., UNITED STATES V. WELCH, 217 U.S. 333; RICHARDS V.
WASHINGTON TERMINAL CO., 233 U.S. 546. 

FN6  BOTHWELL V. UNITED STATES, 254 U.S. 231; MITCHELL V. UNITED
STATES, 267 U.S. 341; MULLEN BENEVOLENT CORP. V. UNITED STATES, 290
U.S. 89; ORGEL, VALUATION UNDER EMINENT DOMAIN, CHAP. V, PP. 220-252. 

FN7  ORGEL, OP. CIT., P. 253. 

FN8  PATTERSON V. BOSTON, 23 PICK.  (MASS.)  425; GETZ V.
PHILADELPHIA & READING R. CO., 105 PA. 547; PHILADELPHIA & READING R.
CO. V. GETZ, 113 PA. 214, 6 A. 356; MCMILLIN PRINTING CO. V.
PITTSBURGH, C. & W.R. CO., 216 PA. 504, 65 A. 1091; NORTH COAST R. CO.
V. KRAFT CO., 63 WASH. 250, 115 P. 97; NATIONAL LABORATORY & SUPPLY CO.
V. UNITED STATES, 275 F. 218. 

FN9  SUPRA, NOTE 5. 

FN10  JACKSON V. NEW YORK, 213 N.Y. 34, 106 N.E. 758. 

FN11  MATTER OF CITY OF NEW YORK, 66 MISC. REP. 488, 122 N.Y.S. 321;
MATTER OF WILCOX, 165 APP. DIV. 197, 151 N.Y.S. 141; BALES V. WICHITA
MIDLAND VALLEY R. CO., 92 KAN. 771, 141 P. 1009; MATTER OF CITY OF NEW
YORK, 219 APP. DIV. 27, 219 N.Y.S. 353; MATTER OF CITY OF NEW YORK, 256
N.Y. 236, 176 N.E. 377; IN RE WIDENING OF GRATIOT AVE., 294 MICH. 569,
293 N.W. 755; CF. PAUSE V. ATLANTA, 98 GA. 92, 26 S.E. 489. 

FN12  UNITED STATES V. SEAGREN, 50 F.2D 333; MATTER OF CITY OF NEW
YORK, 118 APP. DIV. 865, 103 N.Y.S. 908; ST. LOUIS V. ST. LOUIS, I.M. &
S.R. CO., 266 MO. 694, 182 S.W. 750; PEOPLE V. GANAHL LUMBER CO., 10
CAL.2D 501, 75 P.2D 1067; AND CASES CITED IN NOTE 11. 

THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER AND MR. JUSTICE MURPHY
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING IN PART. 

I AGREE THAT RESPONDENT IS ENTITLED TO COMPENSATION FOR FIXTURES AND
PERMANENT EQUIPMENT DESTROYED OR DEPRECIATED IN VALUE BY THE TAKING.  I
LIKEWISE AGREE THAT RESPONDENT IS ENTITLED TO A FURTHER INCREASE IN ITS
AWARD.  THE AWARD GRANTED IS LESS THAN THE RENTAL WHICH IT IS UNDER A
CONTINUING OBLIGATION TO PAY THE LESSOR.  THE UNITED STATES IS
OCCUPYING THE PREMISES AND PAYING ABOUT 40[ A SQUARE FOOT WHILE
RESPONDENT CONTINUES TO PAY 42[ TO THE LANDLORD.  IN THESE SPECIAL
CIRCUMSTANCES IT IS DIFFICULT TO SEE HOW A LESSEE RECEIVES THAT JUST
COMPENSATION TO WHICH HE IS ENTITLED UNLESS THE UNITED STATES PAYS THE
FULL RENTAL.  IT WOULD INDEED BE A NOVEL RULE OF LAW WHICH ALLOWED THE
GOVERNMENT TO OUST A PERSON FROM A PORTION OF HIS LEASEHOLD, OCCUPY THE
PREMISES, BUT PAY ONLY A PART OF THE RENT, LEAVING THE BALANCE TO BE
PAID BY HIM WHO THOUGH OUSTED HOLDS THE BALANCE OF THE TERM.  BUT I DO
NOT BELIEVE WE SHOULD ALLOW THE COST OF REMOVING PERSONAL PROPERTY FROM
THE PREMISES TO BE REFLECTED IN THE AWARD.  IF THIS WERE A FEE INTEREST
WHICH WAS BEING CONDEMNED, WE WOULD EXCLUDE ALL SUCH EXPENSES FROM THE
AWARD.  CONSEQUENTIAL LOSSES OR INJURIES RESULTING FROM THE TAKING ARE
NOT COMPENSABLE UNDER THE FIFTH AMENDMENT.  MITCHELL V. UNITED STATES,
267 U.S. 341; UNITED STATES V. MILLER, 317 U.S. 369, 376; UNITED STATES
V. POWELSON, 319 U.S. 266, 281-283.  IT TAKES AN ACT OF CONGRESS TO
MAKE THEM SO.  WE SHOULD ADHERE TO THAT RULE.  IF WE ALLOW
CONSEQUENTIAL DAMAGES TO BE SHOWN HERE, I DO NOT SEE HOW WE CAN REFUSE
SUCH AN OFFER OF PROOF WHEN A 10-YEAR LEASE, A 99-YEAR LEASE, OR A FEE
INTEREST IS CONDEMNED.  IF COST OF MOVING IS RELEVANT TO MARKET PRICE
IN ONE CASE, I CANNOT SAY IT IS IRRELEVANT IN THE OTHER.  AND IF ONE
TYPE OF CONSEQUENTIAL DAMAGE IS RELEVANT TO MARKET PRICE, I DO NOT SEE
WHY ALMOST ANY TYPE MAY NOT BE.  IF WE ALLOW THE OFFER OF PROOF IN THE
PRESENT CASE, THE RESULT WILL BE TO LET CONSEQUENTIAL DAMAGES IN UNDER
A NEW GUISE.  IF WE TAKE THAT STEP WE DEMONSTRATE THAT HARD CASES DO
INDEED MAKE BAD LAW.  WE GIVE THE CONSTITUTION AN INTERPRETATION WHICH
PROMISES SWOLLEN VERDICTS WHICH NO ACT OF CONGRESS CAN CURE. 

MR. JUSTICE BLACK JOINS IN THIS OPINION. 
..END :








HARTFORD-EMPIRE CO. V. U.S., 323 U.S. 386 


ARGUED NOVEMBER 15, 16, 17, 18, 1943.  REARGUED OCTOBER 9, 10, 1944.  -
DECIDED JANUARY 8, 1945.  - 46 F.SUPP.  541, MODIFIED. 


1.  THE CONCLUSION THAT THE CORPORATE APPELLANTS AND CERTAIN
INDIVIDUAL APPELLANTS AGREED, CONSPIRED AND COMBINED TO MONOPOLIZE, AND
DID RESTRAIN AND MONOPOLIZE, INTERSTATE AND FOREIGN COMMERCE, BY
ACQUIRING PATENTS COVERING THE MANUFACTURE OF GLASSMAKING MACHINERY AND
BY EXCLUDING OTHERS FROM A FAIR OPPORTUNITY TO ENGAGE IN COMMERCE IN
SUCH MACHINERY AND IN THE MANUFACTURE AND DISTRIBUTION OF GLASS
PRODUCTS, IN VIOLATION OF THE ANTITRUST LAWS, IS SUPPORTED BY THE
FINDINGS AND THE EVIDENCE.  SHERMAN ACT, SECS. 1 AND 2; CLAYTON ACT,
SEC. 3.  PP. 401-403. 

(A)  THE CONCLUSION THAT ONE OF THE CORPORATE APPELLANTS HAD NOT
ABANDONED THE UNLAWFUL CONSPIRACY - IN VIEW OF ITS SUBSEQUENT CONDUCT
AND ITS CONTINUING TO SHARE IN THE FRUITS OF THE CONSPIRACY - IS
SUPPORTED BY THE EVIDENCE.  P. 407. 

(B)  THE DECREE AGAINST FOUR OF THE INDIVIDUAL APPELLANTS, WHO WERE
DIRECTORS AND OFFICERS OF A CORPORATION AS TO WHICH THE COMPLAINT WAS
DISMISSED, MUST BE REVERSED BECAUSE THE ALLEGATIONS OF THE BILL ARE
INSUFFICIENT TO SUPPORT A DECREE AGAINST THEM; THE FINDINGS DO NOT
SUPPORT THE DECREE AS TO THEM; THE REFUSAL OF FINDINGS REQUESTED BY THE
GOVERNMENT EXCULPATES THEM OF PARTICIPATION IN THE CONSPIRACY; AND THE
PROOFS FAIL TO CONNECT THEM WITH THE CONSPIRACY.  P. 403. 

(C)  USE BY THE CORPORATE APPELLANTS OF THEIR JOINT PATENT POSITION
TO ALLOCATE FIELDS OF MANUFACTURE AND TO MAINTAIN PRICES OF UNPATENTED
GLASSWARE VIOLATED THE ANTITRUST LAWS.  P. 406. 

2.  UPON CONSIDERATION OF OBJECTIONS TO PROVISIONS OF THE DECREE OF
THE DISTRICT COURT ENJOINING VIOLATIONS OF THE ANTITRUST LAWS, THE
DECREE IS VACATED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THE OPINION OF THIS COURT.  PP. 408, 435. 

(A)  A DECREE ENJOINING VIOLATIONS OF THE ANTITRUST LAWS MAY NOT
IMPOSE PENALTIES IN THE GUISE OF PREVENTING FUTURE VIOLATIONS.  P.
409. 

(B)  A DECREE OF INJUNCTION AGAINST VIOLATIONS OF THE ANTITRUST LAWS
MUST NOT BE SO VAGUE AS TO PUT THE WHOLE CONDUCT OF THE DEFENDANTS'
BUSINESS AT THE PERIL OF A SUMMONS FOR CONTEMPT; MUST NOT ENJOIN ALL
POSSIBLE BREACHES OF THE LAW; AND MUST NOT WITHDRAW FROM THE DEFENDANTS
THE PROTECTION OF THE LAW OF THE LAND.  P. 410. 

(C)  THE ACTS RESTRAINED BY A DECREE OF INJUNCTION MUST BE DESCRIBED
SPECIFICALLY THEREIN AND NOT BY REFERENCE TO THE BILL OF COMPLAINT.  P.
410. 

(D)  THOUGH USEFUL PENDENTE LITE, THE RECEIVERSHIP AND THE IMPOUNDING
OF FUNDS, ORDERED IN THE CASE OF ONE OF THE CORPORATE APPELLANTS, WERE
NOT NECESSARY TO THE PRESCRIPTION OF APPROPRIATE RELIEF.  THE
RECEIVERSHIP SHOULD BE TERMINATED AND THE IMPOUNDED FUNDS DISPOSED OF
AS HEREIN DIRECTED.  P. 411. 

(E)  OUT OF THE ROYALTIES PAID IN BY LESSEES OF ONE OF THE CORPORATE
APPELLANTS, THE LATTER SHOULD RECEIVE COMPENSATION ON A QUANTUM MERUIT
BASIS FOR SERVICES WHICH IT RENDERED TO THE LESSEES.  P. 411. 

(F)  PROVISIONS OF THE DECREE REQUIRING EACH OF THE APPELLANTS TO
ABSTAIN FOREVER FROM LEASING PATENTED GLASSMAKING MACHINERY, AND
COMPELLING EACH OF THEM IF HE DESIRES TO DISTRIBUTE PATENTED MACHINERY
TO SELL THE MACHINE WHICH EMBODIES THE PATENT TO EVERYONE WHO APPLIES,
AT A PRICE TO BE FIXED BY THE COURT, ARE CONFISCATORY IN EFFECT AND ARE
UNWARRANTED.  P. 412. 

(G)  PROVISIONS OF THE DECREE ENJOINING EACH OF THE APPELLANTS FROM
ENGAGING IN THE DISTRIBUTION OF GLASSMAKING MACHINERY OR IN THE
DISTRIBUTION OF GLASSWARE IN INTERSTATE COMMERCE UNLESS HE AGREES (1)
TO GRANT ROYALTY-FREE LICENSES UNDER PATENTS NOW OWNED; (2) TO GRANT
LICENSES AT REASONABLE ROYALTIES UNDER AFTER-ACQUIRED PATENTS; AND (3)
TO MAKE AVAILABLE TO ANY LICENSEE, AT COST PLUS A REASONABLE PROFIT,
ALL DRAWINGS AND PATTERNS RELATING TO THE MACHINERY OR METHODS USED IN
THE MANUFACTURE OF GLASSWARE EMBODIED IN THE LICENSED INVENTIONS, ARE
CONFISCATORY IN EFFECT AND ARE UNWARRANTED.  P. 413. 

(H)  FOR VIOLATIONS OF THE SHERMAN ACT ARISING FROM THE USE OF PATENT
LICENSES, AGREEMENTS, AND LEASES, THE DECISIONS OF THIS COURT IN MORTON
SALT CO. V. SUPPIGER CO., 314 U.S. 488, AND B.B. CHEMICAL CO. V. ELLIS,
314 U.S. 495, DO NOT AUTHORIZE FORFEITURE OF THE PATENTS.  P. 415. 

(I)  A PROVISION OF THE DECREE WHICH IS VAGUE AND WOULD BE DIFFICULT
OF APPLICATION, AND WHICH SEEMS NOT TO BE ADDRESSED TO ANY PRACTICE
INDULGED IN OR THREATENED BY ANY OF THE APPELLANTS, SHOULD BE MODIFIED
OR ELIMINATED.  P. 418. 

(J)  THE CORPORATE APPELLANTS SHOULD BE ENJOINED FROM FURTHER
PROSECUTION OF INFRINGEMENT SUITS PENDING AT THE TIME THIS SUIT WAS
BROUGHT; ANY ALLEGED INFRINGERS WHO ARE WILLING TO TAKE
NONDISCRIMINATORY AND NONRESTRICTIVE LICENSES AT STANDARD ROYALTIES
SHOULD BE RELEASED; AND THE PATENT OWNER SHOULD BE DENIED DAMAGES AND
PROFITS WHICH IT MIGHT HAVE CLAIMED FOR PAST INFRINGEMENT.  BUT THE
DECREE SHOULD BE WITHOUT PREJUDICE TO FUTURE INFRINGEMENT SUITS AGAINST
PERSONS REFUSING TO TAKE LICENSES AFTER THE DATE OF THE DECREE.  THE
DECREE SHOULD NOT FORBID ANY DEFENDANT FROM SEEKING RECOVERY FOR
INFRINGEMENT, OCCURRING AFTER THE DATE OF THE FINAL DECREE, OF PATENTS
NOT COVERING FEEDERS, FORMERS, STACKERS, LEHRS OR PROCESSES OR METHODS
APPLICABLE TO ANY OF THEM.  P. 419. 

(K)  LICENSE AGREEMENTS BETWEEN THE CORPORATE APPELLANTS WHICH ARE
CONSISTENT WITH THE VIEWS HERE EXPRESSED SHOULD BE ALLOWED TO STAND;
THOSE FOUND TO BE INCONSISTENT SHOULD BE ORDERED REFORMED; AND THE
APPELLANTS SHOULD BE ENJOINED FROM ALTERING THE AGREEMENTS, OR ANY
HEREAFTER MADE IN LIKE TERMS, WITHOUT THE APPROVAL OF THE COURT.  P.
420. 

(1)  THE DECREE SHOULD PERMIT ANY CORPORATE APPELLANT, ACTING ALONE,
TO LEASE OR SELL PATENTED MACHINERY OR LICENSE THE USE OF PATENTS, IF
IT SO ELECTS, PROVIDED ALWAYS THAT NO DISCRIMINATION IS PRACTICED AND
THAT NO RESTRICTIVE CONDITIONS BE ATTACHED SAVE WITH THE APPROVAL OF
THE COURT.  P. 420. 

(M)  THE DECREE SHOULD ORDER DEDICATION TO THE PUBLIC OF A PATENT
WHICH ONE OF THE CORPORATE APPELLANTS, TO BE FREE FROM THE POSSIBLE
THREAT OF SUIT FOR INFRINGEMENT, HAD ACQUIRED BY ASSIGNMENT FROM
ANOTHER.  P. 421. 

(N)  A PROVISION OF THE DECREE ENJOINING CERTAIN RESTRICTIVE
PROVISIONS IN LICENSE AGREEMENTS SHOULD BE AMENDED TO PERMIT ANY
APPELLANT, CORPORATE OR INDIVIDUAL, TO RETAIN AND REFUSE TO LICENSE, TO
USE AND REFUSE TO LICENSE, OR TO LICENSE WITH RESTRICTIONS, ANY PATENT
HEREAFTER APPLIED FOR OR ACQUIRED, EXCEPT THOSE APPLICABLE TO FEEDERS,
FORMERS, STACKERS AND LEHRS AND PROCESSES AND METHODS APPLICABLE
THERETO.  P. 424. 

(O)  A PROVISION OF THE DECREE REQUIRING COURT APPROVAL OF "ANY
AGREEMENT BETWEEN ANY OF THE DEFENDANTS" AND "OF ANY LICENSE AGREEMENT
MADE PURSUANT TO THIS JUDGMENT" IS TOO BROAD.  IF RETAINED, IT SHOULD
BE RESTRICTED TO LEASE OR LICENSE AGREEMENTS AND AGREEMENTS RESPECTING
PATENTS AND TRADE PRACTICES, PRODUCTION, AND TRADE RELATIONS.  P. 424. 

(P)  A PROVISION OF THE DECREE ENJOINING INDIVIDUAL APPELLANTS FROM
OWNERSHIP OF SECURITIES OR EVIDENCE OF INDEBTEDNESS OF MORE THAN ONE
CORPORATION IN THE INDUSTRY SHOULD BE MODIFIED TO PROHIBIT ACQUISITION
OF STOCKS OR BONDS OF ANY CORPORATE APPELLANT BY ANY OTHER SUCH
APPELLANT, AND TO PROHIBIT ANY INDIVIDUAL APPELLANT FROM ACQUIRING A
MEASURE OF CONTROL, THROUGH OWNERSHIP OF STOCKS OR BONDS OR OTHERWISE,
IN A COMPANY COMPETING WITH THAT WITH WHICH HE IS OFFICIALLY CONNECTED
OR IN A SUBSIDIARY OR AFFILIATE OF SUCH COMPETING COMPANY.  P. 425. 

(Q)  AS TO CERTAIN INDIVIDUAL APPELLANTS WHO OWN SUBSTANTIAL AMOUNTS
OF STOCK OF TWO OF THE CORPORATE APPELLANTS, A PERIOD LONGER THAN TWO
YEARS SHOULD BE ALLOWED FOR DIVESTITURE OF THE STOCK OF ONE OR THE
OTHER OF THE CORPORATE APPELLANTS; AND A PROVISO DEPRIVING THEM OF THE
RIGHT TO VOTE THE STOCK OF ONE COMPANY OR THE OTHER, OR TO TRUSTEE THE
STOCK OF ONE OF THE CORPORATIONS, IF BOTH STOCKS ARE HELD LONGER THAN
THE TERM FIXED, WOULD BE APPROPRIATE.  P. 426. 

(R)  A PROVISION OF THE DECREE ENJOINING INDIVIDUAL APPELLANTS FROM
HOLDING AN OFFICE OR DIRECTORSHIP IN MORE THAN ONE CORPORATION WHICH
MANUFACTURES AND SELLS GLASSWARE OR MANUFACTURES OR DISTRIBUTES
GLASSMAKING MACHINERY SHOULD BE LIMITED TO SUCH RELATIONSHIPS IN
COMPETING COMPANIES.  P. 426. 

(S)  PROVISIONS OF THE DECREE ENJOINING ACQUISITION BY ANY OF THE
CORPORATE APPELLANTS OF THE BUSINESS OR ASSETS OF ANY OTHER CORPORATION
(OTHER THAN A SUBSIDIARY), AND BY ANY INDIVIDUAL APPELLANT OF THE
BUSINESS OR ASSETS OF CORPORATIONS OTHER THAN THAT OF WHICH HE IS AN
OFFICER OR DIRECTOR, SHOULD BE LIMITED TO ACQUISITION OF THE BUSINESS
OR ASSETS OF COMPETING COMPANIES.  P. 426. 

(T)  THE APPELLANT TRADE ASSOCIATION, WHICH HAD BEEN AN IMPORTANT
INSTRUMENT OF RESTRAINT AND MONOPOLY, SHOULD BE ORDERED DISSOLVED, AND
THE CORPORATE DEFENDANTS RESTRAINED FOR A PERIOD OF FIVE YEARS FROM
FORMING OR JOINING ANY SUCH ASSOCIATION.  P. 428. 

(U)  AN INJUNCTION BINDING THE CORPORATE APPELLANTS, THEIR OFFICERS,
AGENTS AND EMPLOYEES, IS SUFFICIENT TO CONSTRAIN THE INDIVIDUAL
APPELLANTS SO LONG AS THEY REMAIN IN OFFICIAL RELATIONS, AND TO BIND
THEIR SUCCESSORS; IT IS UNNECESSARY TO ENJOIN THE INDIVIDUAL APPELLANTS
AS INDIVIDUALS.  P. 428. 

(V)  A REQUIREMENT THAT ALL TRADE INFORMATION BE GIVEN TO THE PUBLIC
IS DISAPPROVED.  P. 429. 

(W)  THE INJUNCTION SHOULD PERMIT, AS HERE INDICATED, USUAL BUSINESS
TRANSACTIONS NOT RELATED TO VIOLATIONS OF THE ANTITRUST LAWS.  P. 430. 

(X)  A PROVISION OF THE DECREE WHICH IN EFFECT PROHIBITS THE
ACQUISITION BY ANY APPELLANT OF ANY PATENT, OR OF A RESTRICTED LICENSE
UNDER ANY PATENT, IS INAPPROPRIATE.  P. 431. 

(Y)  THE DECREE MAY PROPERLY RESTRAIN AGREEMENTS AND COMBINATIONS
WHEREBY PATENTS ARE APPLIED FOR AND ACQUIRED TO PREVENT OTHERS FROM
OBTAINING PATENTS ON IMPROVEMENTS WHICH MIGHT AFFECT ROYALTIES ON BASIC
PATENTS; BUT THE DECREE MAY NOT PROHIBIT CORPORATE APPELLANTS FROM
APPLYING FOR PATENTS COVERING THEIR OWN INVENTIONS IN THE ART OF
GLASSMAKING.  P. 432. 

(Z)  A PROVISION OF THE DECREE ENJOINING EACH OF THE APPELLANTS FROM
APPLYING FOR A PATENT "WITH THE INTENTION OF NOT MAKING USE OF THE
INVENTION WITHIN FOUR YEARS" FROM DATE OF ISSUE CAN NOT BE SUSTAINED. 
P. 432. 

(AA)  THE OWNER OF A PATENT IS UNDER NO OBLIGATION TO USE THE PATENT
OR TO GRANT ITS USE TO OTHERS.  P. 432. 

(BB)  A PROVISION OF THE DECREE REQUIRING THE CORPORATE APPELLANTS TO
SUBMIT TO SURVEILLANCE BY THE DEPARTMENT OF JUSTICE AND TO FURNISH
INFORMATION WITH RESPECT TO THEIR BUSINESS SHOULD BE MODIFIED AS WAS A
SIMILAR PROVISION IN UNITED STATES V. BAUSCH & LOMB CO., 321 U.S. 707. 
P. 433. 

(CC)  WHERE INDIVIDUAL APPELLANTS HAVE OFFENDED AGAINST THE ANTI
TRUST LAWS BY ACTING SOLELY ON BEHALF OF, OR IN THE NAME OF, A
CORPORATE APPELLANT, THE DECREE NEED NOT RUN AGAINST THEM AS
INDIVIDUALS.  P. 434. 

(DD)  A PROVISION OF THE DECREE REQUIRING ONE OF THE CORPORATE
APPELLANTS TO CANCEL CERTAIN AGREEMENTS WHICH EXCLUDED THE PARTIES
NAMED FROM ENTERING THE GLASS CONTAINER BUSINESS FOR A PERIOD OF YEARS,
WHICH RESTRICTIONS HAVE ALREADY BEEN RELEASED, IS UNNECESSARY.  P.
435. 

HARTFORD-EMPIRE CO. ET AL. V. UNITED STATES. 

NO. 2.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF OHIO* . 

*TOGETHER WITH NO. 3, CORNING GLASS WORKS ET AL. V. UNITED STATES;
NO. 4, OWENS-ILLINOIS GLASS CO. ET AL. V. UNITED STATES; NO. 5, HAZEL
ATLAS GLASS CO. ET AL. V. UNITED STATES; NO. 6, THATCHER MANUFACTURING
CO. ET AL. V. UNITED STATES; NO. 7, LYNCH CORPORATION ET AL. V. UNITED
STATES; NO. 8, BALL BROTHERS CO. ET AL. V. UNITED STATES; NO. 9, GLASS
CONTAINER ASSOCIATION OF AMERICA, INC. ET AL. V. UNITED STATES; NO. 10,
COLLINS V. UNITED STATES; AND NO. 11, FULTON ET AL. V. UNITED STATES,
ALSO ON APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF OHIO. 

APPEALS UNDER THE EXPEDITING ACT FROM A DECREE ENJOINING VIOLATIONS
OF THE ANTITRUST LAWS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE ARE APPEALS FROM A DECREE  FN1  AWARDING AN INJUNCTION AGAINST
VIOLATIONS OF SECS. 1 AND 2 OF THE SHERMAN ACT, AS AMENDED,  FN2  AND
SEC. 3 OF THE CLAYTON ACT.  FN3 TWO QUESTIONS ARE PRESENTED.  WERE
VIOLATIONS PROVED?  IF SO, ARE THE PROVISIONS OF THE DECREE RIGHT? 

THE COMPLAINT NAMED AS DEFENDANTS 12 CORPORATIONS AND 101 INDIVIDUALS
ASSOCIATED WITH THEM AS OFFICERS OR DIRECTORS.  IT WAS DISMISSED AS TO
3 CORPORATIONS AND 40 INDIVIDUALS.  THE CORPORATIONS ARE THE LEADERS IN
AUTOMATIC GLASSMAKING MACHINERY AND IN THE GLASSWARE INDUSTRY.  THE
CHARGE IS THAT ALL THE DEFENDANTS AGREED, CONSPIRED, AND COMBINED TO
MONOPOLIZE, AND DID MONOPOLIZE AND RESTRAIN INTERSTATE AND FOREIGN
COMMERCE BY ACQUIRING PATENTS COVERING THE MANUFACTURE OF GLASSMAKING
MACHINERY, AND BY EXCLUDING OTHERS FROM A FAIR OPPORTUNITY FREELY TO
ENGAGE IN COMMERCE IN SUCH MACHINERY AND IN THE MANUFACTURE AND
DISTRIBUTION OF GLASS PRODUCTS.  THE GRAVAMEN OF THE CASE IS THAT THE
DEFENDANTS HAVE COOPERATED IN OBTAINING AND LICENSING PATENTS COVERING
GLASSMAKING MACHINERY, HAVE LIMITED AND RESTRICTED THE USE OF THE
PATENTED MACHINERY BY A NETWORK OF AGREEMENTS, AND HAVE MAINTAINED
PRICES FOR UNPATENTED GLASSWARE. 

THE TRIAL LASTED 112 DAYS.  THE COURT FILED AN OPINION OF 160 PAGES,
628 FINDINGS OF FACT AND 89 CONCLUSIONS OF LAW, AND ENTERED A DECREE
COVERING 46 PRINTED PAGES AND COMPRISING 60 NUMBERED PARAGRAPHS.  THE
PRINTED RECORD CONTAINS OVER 16,500 PAGES.  AN OPINION OF REASONABLE
LENGTH MUST DEAL IN SUMMARY FASHION WITH THE FACTS DISCLOSED BY THE
PROOFS AND LEAVE MUCH OF THE DETAILED HISTORY OF THE TRANSACTIONS TO BE
GLEANED FROM THE OPINION BELOW. 

IN 1912 HARTFORD-FAIRMONT COMPANY WAS ORGANIZED TO COMBINE THE
ACTIVITIES OF TWO EXISTING COMPANIES INTERESTED IN GLASS MANUFACTURE
WITH THOSE OF A GROUP OF ENGINEERS WHO DESIRED TO OBTAIN AND EXPLOIT
PATENTS FOR AUTOMATIC GLASSMAKING MACHINERY.  THE DEFENDANT CORNING
GLASS WORKS WAS, AT THAT TIME, ENGAGED PRIMARILY IN THE PRODUCTION AND
DISTRIBUTION OF INCANDESCENT BULBS, SIGN AND OPTICAL WARE, HEAT
RESISTING WARE AND OTHER SPECIALTY GLASSWARE.  ITS FIELD MAY BE DEFINED
ROUGHLY AS THE PRESSED AND BLOWN FIELD, OR THE NONCONTAINER FIELD.  IT
HAS NOT MADE, AND DOES NOT NOW MAKE, CONTAINERS SAVE A LIMITED AMOUNT
OF TUMBLERS.  IN 1909 PERSONS INTERESTED IN CORNING ORGANIZED EMPIRE
MACHINE COMPANY AS A PATENT HOLDING AND DEVELOPING COMPANY. 

THE DEFENDANT OWENS-ILLINOIS GLASS COMPANY (HEREINAFTER CALLED OWENS)
IS A LARGE MANUFACTURER OF GLASS.  MR. OWENS OF THAT COMPANY PRODUCED
THE FIRST FULLY AUTOMATIC MACHINE FOR BLOWING BOTTLES, WHICH IS KNOWN
AS A SUCTION TYPE MACHINE.  HE WAS INTERESTED IN COMPANIES ENGAGED IN
DEVELOPING AND MANUFACTURING THIS TYPE OF MACHINE AND EXERCISING THE
RIGHTS REPRESENTED BY THE OWENS AND RELATED PATENTS.  FROM ABOUT 1904
THE OWENS GROUP FOLLOWED THE POLICY OF GRANTING EXCLUSIVE LICENSES, IN
LIMITED FIELDS, FOR THE MANUFACTURE OF GLASSWARE BY THE SUCTION
PROCESS.  OWENS ITSELF WAS, AND IS, MAINLY INTERESTED IN WHAT IS KNOWN
AS NARROW NECK CONTAINER WARE.  PRIOR TO THE OWENS INVENTIONS
GLASSMAKING HAD BEEN LARGELY A HAND PROCESS.  THEREAFTER, DUE TO OWENS'
RESTRICTIVE LICENSING POLICY, MANY GLASS MANUFACTURERS WERE THREATENED
WITH EXTINCTION UNLESS SOME OTHER COMPETING MACHINE COULD BE DEVISED. 
ULTIMATELY A PROCESS, CALLED SUSPENDED GOB FEEDING, WAS INVENTED, WHICH
WAS MORE ECONOMICAL FOR CERTAIN WARE THAN THE SUCTION PROCESS, AND
COULD BE APPLIED IN THE MANUFACTURE OF DIVERSIFIED GLASSWARE.  THE
INTRODUCTION OF THE GOB FEEDER MACHINE THREATENED OWENS' DOMINATION OF
THE GLASS MACHINERY FIELD AND OWENS, IN SELF-PROTECTION, OBTAINED
PATENTS AND PATENT RIGHTS ON GOB FEEDERS AND LICENSED SOME COMPANIES
FOR THEIR USE. 

HARTFORD-FAIRMONT WAS INTERESTED IN THE DEVELOPMENT OF THE GOB
FEEDER.  IT APPLIED FOR SOME PATENTS AND ACQUIRED OTHERS.  IN THE
MEANTIME, IT LICENSED GOB FEEDER MACHINERY, AS OWENS HAD DONE WITH THE
WARE.  EMPIRE OWNED CERTAIN PATENT APPLICATIONS WHICH WERE IN
INTERFERENCE WITH HARTFORD-FAIRMONT GOB FEEDER APPLICATIONS. 

JUNE 30, 1916, HARTFORD-FAIRMONT AND EMPIRE MADE AN AGREEMENT WHEREBY
EMPIRE WAS GIVEN AN EXCLUSIVE LICENSE TO USE HARTFORD-FAIRMONT'S
PATENTS FOR PRESSED AND BLOWN GLASSWARE AND HARTFORD-FAIRMONT WAS GIVEN
AN EXCLUSIVE LICENSE TO USE EMPIRE'S PATENTS FOR PRODUCTION OF
CONTAINERS.  THUS CORNING OBTAINED EXCLUSIVE RIGHTS, UNDER THE PATENTS,
FOR CORNING'S LINE OF WARE,  - PRESSED AND BLOWN GLASS,  - AND HARTFORD
OBTAINED THE PATENT RIGHTS OF BOTH COMPANIES IN RESPECT OF OTHER
GLASSWARE.  NEGOTIATIONS LED TO AGREEMENTS, OCTOBER 6, 1922, WHEREBY
HARTFORD-EMPIRE (HEREINAFTER CALLED HARTFORD) WAS FORMED AND TOOK OVER
ALL ASSETS OF HARTFORD-FAIRMONT AND OF EMPIRE RELATING TO GLASS
MACHINERY.  EMPIRE RECEIVED 43% OF THE STOCK OF THE COMPANY AND CORNING
RETAINED APPROXIMATELY THE SAME EXCLUSIVE INTEREST THAT EMPIRE HAD
ENJOYED UNDER THE 1916 AGREEMENT.  HARTFORD RETAINED APPROXIMATELY THE
SAME RIGHTS IT HAD OBTAINED FROM EMPIRE IN 1916 SUBJECT TO A SHOP RIGHT
IN CORNING WHICH HAS NOT BEEN EXERCISED.  EMPIRE WAS DISSOLVED IN
1941. 

AFTER 1916 HARTFORD-FAIRMONT (AND ITS SUCCESSOR HARTFORD) AND OWENS
WERE COMPETITORS IN THE GOB FEEDING FIELD; THEIR APPLICATIONS WERE IN
INTERFERENCE IN THE PATENT OFFICE WITH EACH OTHER AND WITH THOSE OF
OTHER APPLICANTS; AND THEY WERE IN LITIGATION.  AS A RESULT OF
NEGOTIATIONS FOR A SETTLEMENT OF THEIR DISPUTES, THEY ENTERED INTO AN
AGREEMENT APRIL 9, 1924, WHEREBY OWENS GRANTED HARTFORD AN EXCLUSIVE
LICENSE UNDER OWENS' PATENTS FOR GOB FEEDER AND FORMING MACHINES AND
HARTFORD GRANTED OWENS A NONEXCLUSIVE, NONASSIGNABLE, AND NONDIVISIBLE
LICENSE TO MAKE AND USE MACHINES AND METHODS EMBODYING PATENTS THEN OR
THEREAFTER OWNED OR ACQUIRED BY HARTFORD FOR THE MANUFACTURE OF
GLASSWARE, BUT OWENS WAS NOT TO SELL OR LICENSE GOB FEEDING MACHINERY
AND WAS EXCLUDED FROM THE PRESSED AND BLOWN FIELD PREVIOUSLY RESERVED
TO CORNING.  OWENS WAS TO RECEIVE ONE-HALF OF HARTFORD'S DIVISIBLE
INCOME FROM LICENSES OVER AND ABOVE $600,000 PER ANNUM.  OWENS RETAINED
A VETO POWER ON HARTFORD'S GRANTING NEW LICENSES ON MACHINES EMBODYING
OWENS' INVENTIONS.  THIS PROVISION WAS ELIMINATED IN 1931.  THE
AGREEMENT LEFT OWENS IN FULL CONTROL OF ITS PATENTED SUCTION PROCESS. 

AS SOON AS THE AGREEMENT HAD BEEN MADE, HARTFORD AND OWENS COMBINED
TO GET CONTROL OF ALL OTHER FEEDER PATENTS.  IN THIS ENDEAVOR THEY
POOLED THE EFFORTS OF THEIR LEGAL STAFFS AND CONTRIBUTED EQUALLY TO THE
PURCHASE OF PATENTS AND THE EXPENSES OF LITIGATION. 

WHILE PATENT CLAIMS UPON APPLICATIONS CONTROLLED BY HARTFORD AND
OWENS WERE PENDING IN THE PATENT OFFICE, HARTFORD PURCHASED, UNDER THE
JOINT ARRANGEMENT, CERTAIN FEEDER PATENTS AND APPLICATIONS BELONGING TO
OUTSIDERS, AND PERSONS TO WHOM FEEDERS HAD BEEN SOLD OR LICENSED BY
SUCH OUTSIDERS WERE PERSUADED TO TAKE LICENSES FROM HARTFORD.  AS A
RESULT OF HARTFORD'S AND OWENS' JOINT EFFORTS IN CONNECTION WITH PATENT
APPLICATIONS AND PURCHASES OF APPLICATIONS AND PATENTS OF OTHERS,
HARTFORD OBTAINED WHAT IT CONSIDERED CONTROLLING PATENTS ON GOB FEEDERS
IN 1926. 

HAZEL-ATLAS GLASS COMPANY (HEREINAFTER CALLED HAZEL) WAS SECOND TO
OWENS IN THE MANUFACTURE AND SALE OF GLASS CONTAINERS.  IT HAD BEEN
USING FEEDERS OF ITS OWN DESIGN AND MANUFACTURE.  TO BUILD UP FURTHER
PATENT CONTROL, TO DISCOURAGE USE OF MACHINERY NOT COVERED BY THEIR
PATENTS, AND TO INFLUENCE GLASSMAKERS TO TAKE LICENSES UNDER HARTFORD'S
INVENTIONS, HARTFORD AND OWENS DESIRED THAT HAZEL SHOULD BECOME A
PARTNER-LICENSEE.  IN 1924 THEY NEGOTIATED WITH HAZEL TO THIS END AND
OFFERED TO RETURN TO HAZEL A SUBSTANTIAL PORTION OF ANY ROYALTIES IT
WOULD HAVE TO PAY AS A LICENSEE.  NO AGREEMENT WAS REACHED AND HARTFORD
BROUGHT INFRINGEMENT SUITS AGAINST HAZEL AND ITS SUBSIDIARIES.  ONE
CIRCUIT COURT OF APPEALS DECIDED FAVORABLY TO HAZEL; ANOTHER FAVORABLY
TO HARTFORD.  SHORTLY AFTER THE LATTER DECISION, HARTFORD AND OWENS, IN
ORDER TO BUTTRESS THE PATENT SITUATION, PERSUADED HAZEL TO MAKE A
SETTLEMENT. 

AS OF JUNE 1, 1932, HARTFORD, OWENS, AND HAZEL EXECUTED A SERIES OF
AGREEMENTS.  HARTFORD LICENSED HAZEL UNDER HARTFORD'S PATENTS,
EXCLUDING FROM THE LICENSE THE PRESSED AND BLOWN FIELD RESERVED TO
CORNING AND WITH RESTRICTIONS AGAINST SALE OR LICENSE BY HAZEL TO
ANYONE ELSE.  HAZEL LICENSED HARTFORD UNDER ALL ITS GLASS MACHINERY
PATENTS, PRESENT AND FUTURE, TO JANUARY 3, 1945.  HAZEL PAID HARTFORD
$1,000,000 AND AGREED TO PAY HARTFORD ROYALTIES, AND HARTFORD AGREED
THAT HAZEL AND OWENS SHOULD EACH RECEIVE ONE-THIRD OF HARTFORD'S NET
INCOME FROM ROYALTIES AND LICENSE FEES OVER AND ABOVE $850,000 PER
ANNUM.  HARTFORD AND OWENS READJUSTED THEIR CONTRACTUAL STATUS TO
CONFORM IT TO THE AGREEMENTS WITH HAZEL.  OWENS MAINTAINED CONTROL OF
ITS OWN SUCTION INVENTIONS.  IT CONFIRMED TO HAZEL ITS EXISTING RIGHTS
UNDER EARLIER AGREEMENTS TO USE THESE.  OWENS OBTAINED AN OPTION EITHER
TO PURCHASE, OR TO BECOME LICENSEE, OF ANY SUCTION INVENTIONS
CONTROLLED BY HARTFORD AND AGREED, IN EVENT OF SUCH ACQUISITION, TO
PERMIT HAZEL TO USE THEM.  OWENS AND HAZEL HAD THE OPTION, ON NOTICE,
TO TERMINATE THEIR CONTRACTS WITH HARTFORD BUT AGREED MUTUALLY TO
PROTECT EACH OTHER IN SUCH EVENT.  THE RESULT OF THIS COMBINATION WAS
THAT RESISTANCE TO HARTFORD'S LICENSING CAMPAIGN DISAPPEARED AND
PRACTICALLY THE ENTIRE INDUSTRY TOOK LICENSES FROM HARTFORD. 

THATCHER MANUFACTURING COMPANY, A LARGE MANUFACTURER OF MILK BOTTLES,
EARLY OBTAINED AN EXCLUSIVE LICENSE TO MANUFACTURE THEM ON THE OWENS
MANUFACTURE MILK BOTTLES ON HARTFORD'S PADDLE NEEDLE FEEDER AND MILK
BOTTLE FORMING MACHINE.  IT PRESSED FOR LIKE RIGHTS UNDER HARTFORD'S
LATER DEVICE, THE SINGLE FEEDER.  THOUGH REFUSING THE GRANT, HARTFORD
ASSURED THATCHER THAT IT WOULD BE GIVEN EVERY CONSIDERATION IN THE
GRANT OF FURTHER LICENSES.  BY A SUPPLEMENTAL AGREEMENT OF DECEMBER 1,
1925, HARTFORD, IN VIEW OF ITS "MORAL OBLIGATION" TO THATCHER, AGREED
TO PAY AND, UNTIL JANUARY 1, 1936, ALLOWED THATCHER A REBATE ON A
CERTAIN PORTION OF THATCHER'S PRODUCTION, AND, IN 1928, AGREED TO GIVE
THATCHER THE REFUSAL OF ANY EXCLUSIVE LICENSE ON FEEDERS AND FORMERS
FOR PRODUCTION OF MILK BOTTLES.  IN 1936 A NEW AGREEMENT WAS MADE
WHEREBY HARTFORD AGREED THAT, SO LONG AS THATCHER MANUFACTURED 750,000
GROSS PER ANNUM, HARTFORD WOULD GRANT NO OTHER LICENSE FOR MANUFACTURE
OF MILK BOTTLES. 

BALL BROTHERS, THE LARGEST MANUFACTURER OF DOMESTIC FRUIT JARS, HAD
USED MACHINES OF ITS OWN DESIGN AS WELL AS THE OWENS SUCTION MACHINES
UNDER LICENSE, BUT HAD NEVER TAKEN ANY LICENSE FROM HARTFORD.  IN 1933
BALL TOOK A LICENSE FROM HARTFORD, OBTAINING ALL THE RESIDUAL RIGHTS OF
HARTFORD FOR THE MANUFACTURE OF FRUIT JARS, AND, INTER ALIA, GRANTED
HARTFORD AN OPTION TO TAKE LICENSES ON ALL BALL'S PATENTS FOR GLASS
MACHINERY THEN OWNED OR THEREAFTER ACQUIRED.  AFTER DISCUSSION AS TO
THE RIGHTS OF HAZEL AND OWENS TO MANUFACTURE FRUIT JARS, IT WAS
PROPOSED THAT THEY BE LIMITED BY WRITTEN AGREEMENT, HAZEL TO 300,000
GROSS AND OWENS TO 100,000 GROSS ANNUALLY.  IT WAS DECIDED NOT TO HAVE
A WRITTEN AGREEMENT BUT BOTH HAVE GENERALLY KEPT WITHIN THESE LIMITS. 
WHEN THE COMPLAINT WAS FILED BALL BROTHERS MANUFACTURED APPROXIMATELY
54.5% OF ALL THE FRUIT JARS MANUFACTURED AND SOLD IN THE UNITED STATES,
HAZEL 17.6%, OWENS 6.4%, AND AN OUTSIDER, USING A MACHINE ON WHICH THE
PATENTS HAD EXPIRED, 21.5%. 

IN GRANTING LICENSES UNDER THE POOLED PATENTS HARTFORD ALWAYS
RESERVED THE RIGHTS WITHIN CORNING'S FIELD.  FURTHER, IT NOT ONLY
LIMITED ITS LICENSEES TO CERTAIN PORTIONS OF THE CONTAINER FIELD BUT,
IN MANY INSTANCES, LIMITED THE AMOUNT OF GLASSWARE WHICH MIGHT BE
PRODUCED BY THE LICENSEE AND, IN NUMEROUS INSTANCES, AS A RESULT OF
CONFERENCES WITH OWENS, HAZEL, THATCHER AND BALL, REFUSED LICENSES TO
PREVENT OVERSTOCKING THE GLASSWARE MARKET AND TO "STABILIZE" THE PRICES
AT WHICH SUCH WARE WAS SOLD. 

IN THE AUTOMATIC MANUFACTURE OF GLASSWARE, OTHER MACHINES ARE USED IN
CONNECTION WITH THE FEEDERS.  THESE ARE KNOWN AS FORMING MACHINES,
STACKERS, AND LEHRS.  THE PURPOSE OF HARTFORD AND OWENS, PARTICIPATED
IN BY THE OTHER THREE LARGE MANUFACTURERS MENTIONED, WAS THAT THERE
SHOULD BE GATHERED INTO THE POOL PATENTS COVERING AND MONOPOLIZING
THESE ADJUNCT MACHINES SO THAT AUTOMATIC GLASS MANUFACTURE, WITHOUT
CONSENT OF THE PARTIES TO THE POOL, WOULD BECOME DIFFICULT IF NOT
IMPOSSIBLE.    SEVERAL FORMING MACHINES NOT COVERED BY HARTFORD PATENTS
WERE ON THE MARKET.  WITHOUT GOING INTO DETAIL, IT IS SUFFICIENT TO SAY
THAT, BY PURCHASES OF PATENTS AND MANUFACTURING PLANTS, AND BY AN
AGREEMENT WITH HARTFORD'S PRINCIPAL COMPETITOR, LYNCH MANUFACTURING
COMPANY, THE FIELD WAS DIVIDED BETWEEN HARTFORD AND LYNCH UNDER
RESTRICTIONS WHICH GAVE HARTFORD CONTROL.  IN THE UPSHOT IT BECAME
IMPOSSIBLE TO USE HARTFORD FEEDERS WITH ANY OTHER FORMING MACHINE THAN
ONE LICENSED BY HARTFORD OR USED BY ITS CONSENT, AND, AS RESPECTS
STACKERS AND LEHRS, HARTFORD ATTAINED A SIMILAR DOMINANT STATUS. 

IN 1935 CERTAIN NEW AGREEMENTS WERE MADE.  THOUGH THE 1932 AGREEMENT
BETWEEN HARTFORD AND HAZEL WAS SUBSTANTIALLY UNAFFECTED, THE CONTRACT
RELATIONSHIPS BETWEEN HARTFORD AND OWENS WERE ALTERED.  THE LATTER
SURRENDERED ITS RIGHT TO ONE-THIRD OF HARTFORD'S DIVISIBLE ROYALTY AND
LICENSE INCOME IN CONSIDERATION OF HARTFORD'S PROMISE TO PAY $2,500,000
IN QUARTERLY INSTALMENTS.  OWENS EXTENDED THE TERM OF HARTFORD'S
LICENSE UNDER CERTAIN OWENS INVENTIONS AND HARTFORD GRANTED OWENS A
ROYALTY-FREE, NONEXCLUSIVE LICENSE UNDER ALL HARTFORD'S SUCTION PATENTS
FOR THE LIFE OF THE PATENTS, EXCLUDING, HOWEVER, GLASSWARE IN CORNING'S
FIELD.  OTHER UNIMPORTANT CHANGES WERE MADE IN EXISTING CONTRACTS. 
OWENS AND HAZEL THEREUPON AMENDED THEIR AGREEMENTS SO AS TO PROTECT
HAZEL IN EVENT THE CONTRACT RELATIONS BETWEEN OWENS AND HARTFORD SHOULD
BE ALTERED. 

OWENS INSISTS THAT, BY THE 1935 AGREEMENTS, IT TERMINATED ALL ITS
RELATIONS WITH OTHERS WHICH COULD VIOLATE THE ANTITRUST STATUTES.  BUT
THE 1935 AGREEMENTS LEFT HARTFORD IN UNDISPUTED CONTROL OF THE GOB
FEEDER FIELD, AND OWENS IN LIKE CONTROL OF THE SUCTION FIELD.  AND THEY
EVIDENTLY RELIED ON THE SITUATION WHICH HAD BEEN BUILT UP, THEIR MUTUAL
INTERESTS, AND OTHER FACTORS, AS SUFFICIENT TO GUARANTEE CONTINUANCE OF
EXISTING RESTRAINTS AND MONOPOLIES WITHOUT THE NECESSITY OF FORMAL
CONTRACTS.  THE DISTRICT COURT FOUND OWENS DID NOT ABANDON THE
CONSPIRACY IN 1935 AND THERE IS EVIDENCE TO SUPPORT THE CONCLUSION. 

IN 1919 THE GLASS CONTAINER ASSOCIATION OF AMERICA WAS FORMED.  PRIOR
TO 1933 ITS MEMBERS PRODUCED 82% OF THE GLASS CONTAINERS MADE IN THE
UNITED STATES AND SINCE HAVE PRODUCED 92%.  SINCE 1931(EXCEPT WHILE THE
NATIONAL INDUSTRIAL RECOVERY ACT WAS IN FORCE) THE ASSOCIATION HAS HAD
A STATISTICAL COMMITTEE OF SEVEN, ON WHICH OWENS, HAZEL, THATCHER, AND,
SINCE 1933, BALL WERE REPRESENTED.  THESE APPELLANTS ALSO WERE
REPRESENTED IN THE BOARD OF DIRECTORS.  HARTFORD, THOUGH NOT A MEMBER,
HAS CLOSELY COOPERATED WITH THE OFFICERS OF THE ASSOCIATION IN EFFORTS
TO DISCOURAGE OUTSIDERS FROM INCREASING PRODUCTION OF GLASSWARE AND
NEWCOMERS FROM ENTERING THE FIELD.  THE COURT BELOW, ON SUFFICIENT
EVIDENCE, HAS FOUND THAT THE ASSOCIATION, THROUGH ITS STATISTICAL
COMMITTEE, ASSIGNED PRODUCTION QUOTAS TO ITS MEMBERS AND THAT THEY AND
HARTFORD WERE ZEALOUS IN SEEING THAT THESE WERE OBSERVED. 

IN SUMMARY, THE SITUATION BROUGHT ABOUT IN THE GLASS INDUSTRY, AND
EXISTING IN 1938, WAS THIS: HARTFORD, WITH THE TECHNICAL AND FINANCIAL
AID OF OTHERS IN THE CONSPIRACY, HAD ACQUIRED, BY ISSUE TO IT OR
ASSIGNMENT FROM THE OWNERS, MORE THAN 600 PATENTS.  THESE, WITH OVER
100 CORNING CONTROLLED PATENTS, OVER 60 OWENS PATENTS, OVER 70 HAZEL
PATENTS, AND SOME 12 LYNCH PATENTS, HAD BEEN, BY CROSSLICENSING
AGREEMENTS, MERGED INTO A POOL WHICH EFFECTUALLY CONTROLLED THE
INDUSTRY.  THIS CONTROL WAS EXERCISED TO ALLOT PRODUCTION IN CORNING'S
FIELD TO CORNING, AND THAT IN RESTRICTED CLASSES WITHIN THE GENERAL
CONTAINER FIELD TO OWENS, HAZEL, THATCHER, BALL, AND SUCH OTHER SMALLER
MANUFACTURERS AS THE GROUP AGREED SHOULD BE LICENSED.  THE RESULT WAS
THAT 94% OF THE GLASS CONTAINERS MANUFACTURED IN THIS COUNTRY ON
FEEDERS AND FORMERS WERE MADE ON MACHINERY LICENSED UNDER THE POOLED
PATENTS. 

THE DISTRICT COURT FOUND THAT INVENTION OF GLASSMAKING MACHINERY HAD
BEEN DISCOURAGED, THAT COMPETITION IN THE MANUFACTURE AND SALE OR
LICENSING OF SUCH MACHINERY HAD BEEN SUPPRESSED, AND THAT THE SYSTEM OF
RESTRICTED LICENSING HAD BEEN EMPLOYED TO SUPPRESS COMPETITION IN THE
MANUFACTURE OF UNPATENTED GLASSWARE AND TO MAINTAIN PRICES OF THE
MANUFACTURED PRODUCT.  THE FINDINGS ARE FULL AND ADEQUATE AND ARE
SUPPORTED BY EVIDENCE, MUCH OF IT CONTEMPORARY WRITINGS OF CORPORATE
DEFENDANTS OR THEIR OFFICERS AND AGENTS. 

IN 1938 THE TEMPORARY NATIONAL ECONOMIC COMMITTEE INVESTIGATED THE
GLASSMAKING INDUSTRY.  MANY OF THE FACTS DISCLOSED IN THIS RECORD WERE
DEVELOPED.  SUBSEQUENTLY THIS SUIT WAS BROUGHT AND, IN PRETRIAL
CONFERENCES, THE GOVERNMENT STATED ITS VIEW AS TO THE TERMS OF
AGREEMENTS AND THE PRACTICES IT DEEMED ILLEGAL.  THE PRINCIPAL
CORPORATE APPELLANTS HAD MADE SOME ALTERATIONS IN THEIR ARRANGEMENTS
AND, AFTER INSTITUTION OF SUIT,  - AND ON OCCASIONS UP TO SUBMISSION OF
THE CASE ON THE PROOFS,  - MADE FURTHER MODIFICATIONS ON THEIR OWN
RESPONSIBILITY, AND WITHOUT CONCURRENCE OF THE APPELLEE OR THE JUDGE,
IN AN EFFORT TO REMEDY ALLEGED ILLEGAL CONDITIONS. 

AS A CONSEQUENCE, WHEN THE CASE STOOD FOR DECISION, THE SITUATION WAS
AS FOLLOWS:  THE RESTRICTIONS IN THE 1935 AGREEMENT BETWEEN HARTFORD
AND OWENS WERE REMOVED, THE EXCLUSIVE PROVISION, AND THE EXCLUSIONS OF
THE MANUFACTURE OF CERTAIN GLASSWARE EMBODIED IN THE 1935 AGREEMENTS
BETWEEN OWENS AND HAZEL WERE WAIVED BY OWENS.  BALL HAD SURRENDERED ITS
RESIDUAL EXCLUSIVE RIGHT FOR FRUIT JARS AND RELEASED A CLAIM AGAINST
HARTFORD THEREUNDER FOR $425,000 IN CONSIDERATION OF HARTFORD
SURRENDERING ITS OPTION TO ACQUIRE ANY BALL FEEDER INVENTIONS. 
HARTFORD WITHDREW THE EXCLUSIVE FEATURES OF ALL ITS LICENSES OF GLASS
MACHINERY.  HARTFORD RETAINED DOMINANCE OF THE GOB FEEDER FIELD. 
OWENS, ALTHOUGH ITS BASIC PATENT HAD EXPIRED, CONTINUED, BY VIRTUE OF
IMPROVEMENT PATENTS, TO DOMINATE THE SUCTION FIELD.  OWENS, LYNCH, AND
HARTFORD WERE THE LEADERS, IF NOT ALTOGETHER DOMINANT IN THE FORMING
MACHINE FIELD. 

IN JULY 1939 THE ASSOCIATION CHANGED THE NATURE OF ITS STATISTICAL
REPORTS WHICH THE COURT FOUND WERE IN REALITY ASSIGNMENTS OF QUOTAS,
AND PROFESSED TO HAVE ABANDONED A VOLUNTARY EXCHANGE OF STATISTICAL
DATA WHICH HAD PREVIOUSLY TAKEN PLACE AT COMMITTEE OR GENERAL
MEETINGS.  IT THEN ADOPTED A FORM OF STATISTICAL STATEMENT ELIMINATING
ALL FORECASTS AND CONFINED ITS REPORTS TO PAST PERFORMANCES OF THE
MEMBERS. 

WE AFFIRM THE DISTRICT COURT'S FINDINGS AND CONCLUSIONS THAT THE
CORPORATE APPELLANTS COMBINED IN VIOLATION OF THE SHERMAN ACT, THAT
HARTFORD AND LYNCH CONTRACTED IN VIOLATION OF THE CLAYTON ACT, AND THAT
THE INDIVIDUAL APPELLANTS WITH EXCEPTIONS TO BE NOTED PARTICIPATED IN
THE VIOLATIONS IN THEIR CAPACITIES AS OFFICERS AND DIRECTORS OF THE
CORPORATIONS. 

CERTAIN INDIVIDUAL APPELLANTS INSIST THAT THE FINDING THAT THEY WERE
PARTIES TO THE CONSPIRACY MUST BE SET ASIDE.  IN NO. 10, ISAAC J.
COLLINS APPEALS FROM THAT PORTION OF THE DECREE WHICH ADJUDGES HIM A
PARTY TO THE CONSPIRACY AND GRANTS RELIEF AGAINST HIM, AND, IN NO. 11,
FULTON, FISHER, AND DILWORTH CHALLENGE THEIR INCLUSION IN THE DECREE. 

WHEN SUIT WAS INSTITUTED COLLINS WAS PRESIDENT OF, AND FULTON,
FISHER, AND DILWORTH WERE OFFICIALLY CONNECTED WITH, ANCHOR HOCKING
GLASS COMPANY.  ALL HAD BEEN OFFICERS, DIRECTORS, AND STOCKHOLDERS OF
COMPANIES WHICH ANCHOR HOCKING ABSORBED.  ANCHOR HOCKING IS, AND ITS
PREDECESSORS WERE, MANUFACTURERS OF GLASSWARE.  NONE WERE HOLDERS OF
MACHINE PATENTS OR IN THE GLASS MACHINE BUSINESS.  IN THE BILL OF
COMPLAINT THE CHARGES AGAINST INDIVIDUALS WERE MADE BY ALLEGING THAT A
COMPANY, AND CERTAIN INDIVIDUAL DEFENDANTS CONNECTED WITH IT, HAD
BECOME PARTIES TO THE CONSPIRACY.  THE BILL CHARGED THAT IN 1937 ANCHOR
HOCKING AND CERTAIN DEFENDANTS, BEING ITS OFFICERS AND DIRECTORS,
JOINED THE CONSPIRACY.  THE APPELLANTS IN QUESTION WERE NAMED AS
AMONGST THESE ANCHOR HOCKING DEFENDANTS AND WERE NOT ELSEWHERE IN THE
BILL SPECIFICALLY CHARGED WITH OTHERWISE PARTICIPATING IN THE
CONSPIRACY. 

AT THE CLOSE OF THE GOVERNMENT'S CASE MOTIONS WERE MADE TO DISMISS
THE BILL AS TO ANCHOR HOCKING AND ALL THE DIRECTORS AND OFFICERS OF
THAT COMPANY, INCLUDING COLLINS, FULTON, FISHER, AND DILWORTH, ON THE
GROUND THAT THE GOVERNMENT HAD FAILED TO PROVE ANY PARTICIPATION BY
THEM IN THE ALLEGED CONSPIRACY.  THE COURT GRANTED THE MOTION WITH
RESPECT TO ALL OF THEM EXCEPT COLLINS.  THEREUPON THESE DEFENDANTS
WITHDREW AND DID NOT PARTICIPATE FURTHER IN THE TRIAL.  SOME MONTHS
LATER, ON A MOTION OF THE GOVERNMENT FOR REHEARING OF THE ORDER OF
DISMISSAL, THE COURT REFUSED TO ALTER ITS ORDER WITH RESPECT TO ANCHOR
HOCKING OR THE DEFENDANTS ASSOCIATED WITH IT, SAVE ONLY FULTON, FISHER,
AND DILWORTH.  AS TO THEM, IT GRANTED REHEARINGS AND RESTORED THEM AS
DEFENDANTS OF RECORD.  WHEN THE FINDINGS AND CONCLUSIONS WERE ENTERED
THESE APPELLANTS WERE NAMED AS PARTICIPANTS IN THE CONSPIRACY AND WERE
INCLUDED IN THE INJUNCTIONS EMBODIED IN VARIOUS SECTIONS OF THE
DECREE. 

WE THINK THE DECREE AGAINST THEM MUST BE REVERSED FOR WANT OF
ALLEGATIONS IN THE BILL SUFFICIENT TO SUPPORT A DECREE AGAINST THEM;
BECAUSE THE FINDINGS MADE DO NOT SUPPORT THE DECREE AS TO THEM; BECAUSE
THE REFUSAL OF FINDINGS REQUESTED BY THE GOVERNMENT EXCULPATES THEM OF
PARTICIPATION IN THE CONSPIRACY; AND, FINALLY, BECAUSE THE PROOFS FAIL
TO CONNECT THEM WITH IT. 

FULTON, FISHER, AND DILWORTH EACH HOLD STOCK OF HARTFORD WHICH THEY
ACQUIRED MANY YEARS AGO.  A COMPANY IN WHICH THEY WERE INTERESTED OWNED
HARTFORD STOCK AND PLEDGED IT UNDER A MORTGAGE.  THE COMPANY GOT INTO
DIFFICULTIES, THE MORTGAGE WAS IN DEFAULT, AND THEY AND OTHERS TOOK
OVER THE PLEDGED HARTFORD STOCK FOR CASH SO AS TO PUT THE COMPANY IN
FUNDS TO REFINANCE ITS MORTGAGE. 

THE THREE APPELLANTS ARE AMONGST THE TWO HUNDRED OR MORE STOCKHOLDERS
OF HARTFORD.  THE BILL DOES NOT, AND COULD NOT, CHARGE THEM IN THEIR
CAPACITY AS STOCKHOLDERS OF HARTFORD, AS PARTIES TO THE CONSPIRACY, AND
THEY ARE NOT TO BE ENJOINED BY REASON OF THEIR STOCK HOLDINGS IN
HARTFORD. 

AS WE HAVE SAID, THEY WERE OFFICERS AND DIRECTORS OF CERTAIN
PREDECESSOR COMPANIES TAKEN OVER BY ANCHOR HOCKING, WHICH WERE NOT
CHARGED IN THE BILL AS PARTICIPANTS IN THE CONSPIRACY.  ANCHOR HOCKING
WAS SO CHARGED AND THESE APPELLANTS AND OTHER INDIVIDUALS WERE CHARGED
IN THE BILL TO HAVE BEEN, AND THEN TO BE, OFFICERS AND DIRECTORS
PARTICIPATING IN THE DIRECTION AND MANAGEMENT OF ANCHOR HOCKING.  THE
COMPLAINT ADDS:  "SUCH INDIVIDUAL DEFENDANTS HAVE APPROVED, AUTHORIZED,
ORDERED, AND DONE SOME OR ALL THE ACTS HEREIN ALLEGED TO HAVE BEEN
PERFORMED BY DEFENDANT ANCHOR HOCKING."  THEY ARE NOT OTHERWISE
SPECIFICALLY CHARGED WITH PARTICIPATING IN THE CONSPIRACY.  IT WOULD
SEEM, THEREFORE, THAT WHEN ANCHOR HOCKING WAS FOUND NOT TO HAVE
PARTICIPATED THE ONLY BASIS FOR CHARGING THEM DISAPPEARED.  MOREOVER,
THE GOVERNMENT'S PROOFS WENT NO FARTHER THAN TO SHOW THAT THESE
APPELLANTS ACTED IN THE BUSINESS AFFAIRS OF ANCHOR HOCKING.  THERE IS
NO PROOF THAT THEY CONSPIRED OR COOPERATED WITH OTHER COMPANIES PARTIES
TO THE CONSPIRACY, OR WITH OTHER INDIVIDUALS WHO WERE OFFICERS AND
DIRECTORS OF SUCH CORPORATIONS.  THE ONLY FINDINGS AS TO ALL ARE TO THE
EFFECT THAT THEY HAVE BEEN OFFICERS AND DIRECTORS OF ANCHOR HOCKING AND
ITS PREDECESSORS, AND STOCKHOLDERS OF HARTFORD AND, AS TO ONE, THAT, IN
ADDITION, AS A HARTFORD-FAIRMONT STOCKHOLDER, HE SIGNED THE AGREEMENT
IN 1922 FOR THE FORMATION OF HARTFORD-EMPIRE.  THE GOVERNMENT REQUESTED
THE COURT TO FIND, WITH RESPECT TO THEM, A NUMBER OF FACTS WHICH, IF
FOUND, WOULD HAVE CONNECTED THEM WITH THE CONSPIRACY.  THE COURT
REFUSED THE REQUESTS.  NOWHERE IN THE FINDINGS OR IN THE OPINION IS ANY
REASON GIVEN WHY THESE APPELLANTS SHOULD BE INCLUDED IN THE
INJUNCTION.  AS TO THEM, THE DECREE MUST BE REVERSED. 

ANCHOR HOCKING WAS A LICENSEE OF HARTFORD MACHINERY.  THE APPELLANT
COLLINS THOUGHT THE ROYALTY CHARGED WAS EXCESSIVE AND COMPLAINED
REPEATEDLY ABOUT IT; AND, BELIEVING THAT HIS COMPANY WAS FREE TO MAKE
GLASS OF ANY CHARACTER ON ANY KIND OF MACHINERY, HE COMPLAINED ABOUT
THE EXCLUSIVE FEATURES OF THE LICENSE.  HE REPEATEDLY AROUSED THE
RESENTMENT OF HARTFORD AND SOME OF THE OTHER PARTICIPANTS IN THE
CONSPIRACY BY HIS ASSERTION OF THE PURPOSE TO USE MACHINERY AND TO
MANUFACTURE GLASSWARE IN WAYS THEY THOUGHT CONTRARY TO HIS COMPANY'S
RIGHTS AS A LICENSEE.  THERE WERE EVEN DISCUSSIONS AS TO WHETHER THE
COMPANY SHOULD BE SUED.  THIS EVIDENCE IS UNCONTRADICTED. 

COLLINS IS A STOCKHOLDER OF HARTFORD.  HE ACQUIRED HIS ORIGINAL STOCK
INTEREST IN THE SAME WAY THAT FULTON, FISHER, AND DILWORTH DID.  IN
1926 HE WAS ELECTED A DIRECTOR, AND REMAINED SUCH UNTIL 1937, WHEN HE
RESIGNED.  THIS WAS PRIOR TO THE T.N.E.C. HEARING IN WHICH THE HARTFORD
LICENSING SYSTEM WAS INVESTIGATED AND PRIOR TO THE INSTITUTION OF
SUIT.  THERE IS NO EVIDENCE OR FINDING OF ANY REASONABLE LIKELIHOOD
THAT HE WILL RESUME THE DIRECTORSHIP.  MOREOVER, THE BILL CHARGES THAT
ANCHOR HOCKING AND THE INDIVIDUALS CONNECTED WITH IT ENTERED THE
CONSPIRACY IN 1937. 

THE BILL DOES NOT CHARGE COLLINS WITH ANY ACT AS OFFICER OR DIRECTOR
OF, OR AS PARTICIPANT IN THE DIRECTION AND MANAGEMENT OF, HARTFORD. 
THE ONLY CHARGE AGAINST HIM IS IN RESPECT OF HIS CONNECTION WITH ANCHOR
HOCKING.  THE EVIDENCE IS THAT COLLINS WAS AN IRREGULAR ATTENDANT AT
DIRECTORS' MEETINGS OF HARTFORD; THAT HE WAS NOT ON ANY COMMITTEE OF
THE BOARD WHICH HAD DIRECT CONTACT WITH THE MANAGEMENT AND PATENT
AFFAIRS OF HARTFORD; THAT HE DID NOT KNOW OF THE PREFERRED TERMS UNDER
WHICH OWENS AND HAZEL WERE LICENSED BY HARTFORD UNTIL THE MATTER WAS
DISCLOSED IN THE T.N.E.C. HEARINGS AND THEN CRITICIZED THE
ARRANGEMENT.  THERE IS NO EVIDENCE THAT, AS A DIRECTOR OF HARTFORD, HE
KNEW, APPROVED, OR VOTED IN FAVOR OF ANY OF THE ACTIONS TAKEN PURSUANT
TO THE CONSPIRACY.  ON THE CONTRARY, THE EVIDENCE IS UNCONTRADICTED
THAT HE REPEATEDLY ADVOCATED MORE LIBERAL LICENSING BY HARTFORD AND
THOUGHT ITS ROYALTIES TOO HIGH.  AS IN THE CASE OF THE OTHER APPELLANTS
MENTIONED, THE GOVERNMENT REQUESTED FINDINGS OF FACT WHICH, IF MADE,
WOULD HAVE SPELLED OUT A CONNECTION BETWEEN COLLINS AND THE OTHER
CONSPIRATORS BUT THESE WERE REFUSED BY THE JUDGE.  COLLINS IS FOUND TO
HAVE BEEN, AND STILL TO BE, A MEMBER OF THE ASSOCIATION'S STATISTICAL
COMMITTEE, BUT THE BILL DOES NOT CHARGE HIM INDIVIDUALLY WITH ANY
CONDUCT IN THAT RELATION.  OF COURSE, ANY INJUNCTION AGAINST THE
ASSOCIATION AND ITS OFFICERS AND AGENTS WILL BIND HIM SO LONG AS HE
REMAINS IN THAT RELATIONSHIP.  TWO OTHER FINDINGS AS TO HIS ACTIVITIES
AS A DIRECTOR OF HARTFORD, AND AS PRESIDENT OF GENERAL GLASS COMPANY,
TOUCH MATTERS AS TO WHICH THE BILL OF COMPLAINT IS SILENT AND
CONCERNING WHICH THE EVIDENCE IS NOT PERSUASIVE OF PARTICIPATION IN ANY
CONSPIRACY CHARGED OR PROVED.  WE ARE OF OPINION THAT AS TO COLLINS,
THE BILL SHOULD BE DISMISSED. 

                          I 

LITTLE NEED BE SAID CONCERNING THE LEGAL PRINCIPLES WHICH VINDICATE
THE DISTRICT COURT'S FINDINGS AND CONCLUSIONS AS TO THE CORPORATE
APPELLANTS AND THE INDIVIDUAL APPELLANTS WHO AS OFFICERS OR DIRECTORS
PARTICIPATED IN THE CORPORATE ACTS WHICH FORWARDED THE OBJECTS OF THE
CONSPIRACY.  AS WAS SAID IN STANDARD SANITARY MFG. CO. V. UNITED
STATES, 226 U.S. 20, 49: 

"RIGHTS CONFERRED BY PATENTS ARE INDEED VERY DEFINITE AND EXTENSIVE,
BUT THEY DO NOT GIVE ANY MORE THAN OTHER RIGHTS AN UNIVERSAL LICENSE
AGAINST POSITIVE PROHIBITIONS.  THE SHERMAN LAW IS A LIMITATION OF
RIGHTS, RIGHTS WHICH MAY BE PUSHED TO EVIL CONSEQUENCES AND THEREFORE
RESTRAINED." 

THE DIFFERENCE BETWEEN LEGITIMATE USE AND PROHIBITED ABUSE OF THE
RESTRICTIONS INCIDENT TO THE OWNERSHIP OF PATENTS BY THE POOLING OF
THEM IS DISCUSSED IN STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163. 
APPLICATION OF THE TESTS THERE ANNOUNCED SUSTAINS THE DISTRICT COURT'S
DECISION.  IT IS CLEAR THAT, BY COOPERATIVE ARRANGEMENTS AND BINDING
AGREEMENTS, THE APPELLANT CORPORATIONS, OVER A PERIOD OF YEARS,
REGULATED AND SUPPRESSED COMPETITION IN THE USE OF GLASSMAKING
MACHINERY AND EMPLOYED THEIR JOINT PATENT POSITION TO ALLOCATE FIELDS
OF MANUFACTURE AND TO MAINTAIN PRICES OF UNPATENTED GLASSWARE. 

THE EXPLANATIONS OFFERED BY THE APPELLANTS ARE UNCONVINCING.  IT IS
SAID, ON BEHALF OF HARTFORD, THAT ITS BUSINESS, IN ITS INCEPTION, WAS
LAWFUL AND WITHIN THE PATENT LAWS; AND THAT, IN ORDER TO PROTECT ITS
LEGITIMATE INTERESTS AS HOLDER OF PATENTS FOR AUTOMATIC GLASS
MACHINERY, IT WAS JUSTIFIED IN BUYING UP AND FENCING OFF IMPROVEMENT
PATENTS, THE GRANT OF WHICH, WHILE LEAVING THE FUNDAMENTAL INVENTIONS
UNTOUCHED, WOULD HAMPER THEIR USE UNLESS TRIBUTE WERE PAID TO THE
OWNERS OF THE SO-CALLED IMPROVEMENTS WHICH, OF THEMSELVES, HAD ONLY A
NUISANCE VALUE. 

THE EXPLANATION FAILS TO ACCOUNT FOR THE OFFENSIVE AND DEFENSIVE
ALLIANCE OF PATENT OWNERS WITH ITS CONCOMITANT STIFLING OF INITIATIVE,
INVENTION, AND COMPETITION. 

NOR CAN OWENS' CONTENTION PREVAIL THAT IT LONG AGO ABANDONED ANY
COOPERATION WITH THE OTHER CORPORATE DEFENDANTS AND HAS BEEN FREE OF
ANY TRAMMEL TO UNRESTRICTED COMPETITION EITHER IN THE MACHINERY OR
GLASS FIELD.  OWENS REMAINED ACTIVE IN THE ASSOCIATION.  IT REMAINED
DOMINANT IN THE SUCTION FIELD.  IT CONTINUED IN CLOSE TOUCH WITH
HARTFORD AND WITH OTHER LARGE MANUFACTURERS OF GLASSWARE WHO WERE
PARTIES TO THE CONSPIRACY.  THE DISTRICT COURT WAS JUSTIFIED IN FINDING
THAT THE MERE CANCELLATION OF THE WRITTEN WORD WAS NOT ENOUGH, IN THE
LIGHT OF SUBSEQUENT CONDUCT, TO ACQUIT OWENS OF FURTHER PARTICIPATION
IN THE CONSPIRACY. 

INDIVIDUAL APPELLANTS, EXCEPT COLLINS, FULTON, FISHER, AND DILWORTH,
WHO WERE OFFICERS OR DIRECTORS OF CORPORATE APPELLANTS EACH DID ONE OR
MORE ACTS, SUCH AS NEGOTIATING, VOTING FOR, OR EXECUTING AGREEMENTS
WHICH CONSTITUTED STEPS IN THE PROGRESS OF THE CONSPIRACY.  TO THIS
EXTENT THEY PARTICIPATED IN VIOLATIONS OF THE STATUTES.  SOME WERE MORE
ACTIVE AND PLAYED A MORE RESPONSIBLE ROLE THAN OTHERS. 

                         II 

THE GOVERNMENT SOUGHT THE DISSOLUTION OF HARTFORD.  THE COURT,
HOWEVER, DECIDED THAT A CONTINUANCE OF CERTAIN OF HARTFORD'S ACTIVITIES
WOULD BE OF ADVANTAGE TO THE GLASS INDUSTRY AND DENIED, FOR THE TIME
BEING, THAT FORM OF RELIEF.  THE COURT WAS OF OPINION, HOWEVER, THAT
THE LONG SERIES OF TRANSACTIONS AND THE PERSISTENT MANIFESTATIONS OF A
PURPOSE TO VIOLATE THE ANTITRUST STATUTES REQUIRED THE ENTRY OF A
DECREE WHICH WOULD PRECLUDE THE RESUMPTION OF UNLAWFUL PRACTICES.  IT
WAS FACED, THEREFORE, WITH THE DIFFICULT PROBLEM OF AWARDING AN
INJUNCTION WHICH WOULD INSURE THE DESIRED END WITHOUT IMPOSING
PUNISHMENTS OR OTHER SANCTIONS FOR PAST MISCONDUCT, A PROBLEM
ESPECIALLY DIFFICULT IN VIEW OF THE STATUS AND RELATIONSHIP OF THE
PARTIES. 

AT THE TRIAL THE GOVERNMENT STATED THAT IN THIS SUIT IT WAS NOT
ATTACKING THE VALIDITY OF ANY PATENT OR CLAIMING ANY PATENT HAD BEEN
AWARDED AN IMPROPER PRIORITY. 

AT THE TIME OF THE DISTRICT COURT'S DECISION, HARTFORD HAD REDUCED
THE ROYALTIES OF ALL ITS LICENSEES TO ITS THEN SCHEDULE OF STANDARD
ROYALTIES SO THAT ALL STOOD ON AN EQUAL BASIS SO FAR AS LICENSE FEES
WERE CONCERNED.  GOVERNMENT COUNSEL DID NOT ASSERT, OR ATTEMPT TO
PROVE, THAT THESE ROYALTIES WERE NOT REASONABLE IN AMOUNT. 

OWENS, AS RESPECTS SUCTION INVENTION LICENSES, HAD REMOVED ALL
RESTRICTIVE CLAUSES; HARTFORD HAD DONE THE SAME WITH RESPECT TO ALL ITS
GLASS MACHINERY LICENSES AND SO HAD HARTFORD AND LYNCH WITH RESPECT TO
FORMING MACHINE LICENSES.  AT THE MOMENT, THEREFORE, NO LICENSEE WAS
RESTRICTED EITHER AS TO KIND OR QUANTITY OF GLASSWARE IT MIGHT
MANUFACTURE BY USE OF THE PATENTED MACHINES, AND NO PATENT OWNER WAS
RESTRICTED BY FORMAL AGREEMENT AS TO THE USE OR LICENSING OF ITS
PATENTS. 

JUST BEFORE THE TRIAL, HARTFORD CONVEYED THREE PATENTS TO CORNING AND
COMPLAINT WAS MADE OF THIS TRANSACTION.  CORNING PAID A SUBSTANTIAL SUM
FOR THE TRANSFER, EVIDENTLY TO PREVENT HARTFORD'S OBSTRUCTING CORNING'S
FREE AND UNTRAMMELED USE OF ITS OWN PATENTS.  TWO OF THE ASSIGNED
PATENTS HAVE EXPIRED AND CORNING PROFESSES ITS WILLINGNESS TO DEDICATE
THE THIRD TO THE PUBLIC. 

THE ASSOCIATION HAD CEASED TO ALLOT QUOTAS AMONGST THE GLASS
MANUFACTURERS OR TO FURNISH ADVANCE INFORMATION OR MAKE RECOMMENDATIONS
TO ITS MEMBERS.  THE LICENSING SYSTEM OF HARTFORD REMAINED THAT OF
LEASING MACHINERY BUILT FOR IT EMBODYING THE PATENTED INVENTIONS. 
RENTALS CONSISTED OF STANDARD ROYALTIES ON PRODUCTION.  UNDER THIS
SYSTEM HARTFORD RENDERED A SERVICE IN THE REPAIR, MAINTENANCE, AND
PROTECTION OF THE MACHINES, WHICH IS VALUABLE, IF NOT ESSENTIAL, TO THE
USERS.  THIS WAS THE STATUS WITH WHICH THE COURT HAD TO DEAL. 

THE APPLICABLE PRINCIPLES ARE NOT DOUBTFUL.  THE SHERMAN ACT PROVIDES
CRIMINAL PENALTIES FOR ITS VIOLATION, AND AUTHORIZES THE RECOVERY OF A
PENAL SUM IN ADDITION TO DAMAGES IN A CIVIL SUIT BY ONE INJURED BY
VIOLATION.  IT ALSO AUTHORIZES AN INJUNCTION TO PREVENT CONTINUING
VIOLATIONS BY THOSE ACTING CONTRARY TO ITS PROSCRIPTIONS.  THE PRESENT
SUIT IS IN THE LAST NAMED CATEGORY AND WE MAY NOT IMPOSE PENALTIES  FN4
IN THE GUISE OF PREVENTING FUTURE VIOLATIONS.  THIS IS NOT TO SAY THAT
A DECREE NEED DEAL ONLY WITH THE EXACT TYPE OF ACTS FOUND TO HAVE BEEN
COMMITTED  FN5  OR THAT THE COURT SHOULD NOT, IN FRAMING ITS DECREE,
RESOLVE ALL DOUBTS IN FAVOR OF THE GOVERNMENT, FN6  OR MAY NOT PROHIBIT
ACTS WHICH IN ANOTHER SETTING WOULD BE UNOBJECTIONABLE.  BUT, EVEN SO,
THE COURT MAY NOT CREATE, AS TO THE DEFENDANTS, NEW DUTIES,
PRESCRIPTION OF WHICH IS THE FUNCTION OF CONGRESS, OR PLACE THE
DEFENDANTS, FOR THE FUTURE, "IN A DIFFERENT CLASS THAN OTHER PEOPLE,"
AS THE GOVERNMENT HAS SUGGESTED.  THE DECREE MUST NOT BE "SO VAGUE AS
TO PUT THE WHOLE CONDUCT OF THE DEFENDANTS' BUSINESS AT THE PERIL OF A
SUMMONS FOR CONTEMPT"; ENJOIN "ALL POSSIBLE BREACHES OF THE LAW"; FN7
OR CAUSE THE DEFENDANTS HEREAFTER NOT "TO BE UNDER THE PROTECTION OF
THE LAW OF THE LAND."  FN8  WITH THESE PRINCIPLES IN MIND WE PROCEED TO
EXAMINE THE TERMS OF THE DECREE ENTERED.  NO REFERENCE WILL BE MADE TO
PARAGRAPHS AS TO WHICH THE APPELLANTS DO NOT OBJECT IF ANY DECREE IS TO
BE ENTERED, NOR TO THOSE CONCERNING WHICH WE THINK OBJECTION IS NOT
WELL FOUNDED. 

THE DECREE MUST BE MODIFIED TO ELIMINATE THE APPELLANTS COLLINS,
DILWORTH, FULTON, AND FISHER. 

PARAGRAPH 1(D) SHOULD BE MODIFIED TO LIMIT ITS COVERAGE TO THE UNITED
STATES, AND CLAUSE (A) SHOULD BE STRICKEN AS TOO INDEFINITE FOR
ENFORCEMENT. 

THE GOVERNMENT CONCEDES THAT PARAGRAPH 5 SHOULD BE MODIFIED TO
CONFINE TO HEAT-RESISTANT WARE THE ADJUDICATION THAT CORNING, HARTFORD,
AND EMPIRE, AND THE INDIVIDUAL DEFENDANTS ASSOCIATED WITH EACH, HAVE
MONOPOLIZED AND ATTEMPTED TO MONOPOLIZE TRADE IN VIOLATION OF SEC. 2 OF
THE SHERMAN ACT.  THIS INVOLVES EXCLUSION FROM THE PARAGRAPH OF
REFERENCE TO LABORATORY, PASTE MOLD, AND ELECTRICAL WARE.  TO COMPORT
WITH THE RECORD THE PHRASE "OVENWARE" SHOULD BE SUBSTITUTED FOR "HEAT
RESISTANT WARE." 

THE GOVERNMENT ALSO AGREES TO THE ELIMINATION OF PARAGRAPH 9, WHICH
GENERALLY ENJOINS THE APPELLANTS FROM VIOLATIONS "AS CHARGED IN THE
COMPLAINT."  THIS CONCESSION IS REQUIRED BY STATUTE, BY THE RULES OF
CIVIL PROCEDURE, AND BY OUR DECISIONS.  FN9 

THE COURT APPOINTED A RECEIVER FOR HARTFORD PENDENTE LITE.  BY
PARAGRAPHS 10 TO 20 OF THE FINAL DECREE IT CONTINUED HIM IN OFFICE AND
GAVE DIRECTIONS AS TO HIS ADMINISTRATION OF HARTFORD'S AFFAIRS,
INCLUDING CERTAIN ACTIONS TO BE TAKEN TO EFFECTUATE FEATURES OF THE
DECREE AFFECTING HARTFORD'S BUSINESS AND LICENSES, WHICH WILL LATER BE
DESCRIBED, AND MEANTIME TO CONTINUE THE RECEIPT OF ROYALTIES UNDER
EXISTING LICENSES, THESE TO BE REPAID TO THE LICENSEES ON THE DECREE
BECOMING FINAL.  THE COURT ALSO ORDERED THE IMPOUNDING OF THE SUMS
PAYABLE BY HAZEL TO HARTFORD, AND BY HARTFORD TO HAZEL, UNDER THE 1932
AGREEMENT, UNTIL THE DECREE SHOULD BECOME FINAL.  BALL BROTHERS WAS
ORDERED TO PAY INTO COURT THE $425,000 RECEIVED FROM HARTFORD PURSUANT
TO THE AMENDMENT, AUGUST 1, 1940, OF BALL'S FEEDER LICENSE AGREEMENT,
BUT NO DISPOSITION OF THE FUND WAS DIRECTED (PARAGRAPH 44).  CORNING
WAS DIRECTED TO PAY INTO COURT THE MONEYS RECEIVED BY IT FROM HARTFORD
IN CONNECTION WITH THE AMENDING AGREEMENTS OF SEPTEMBER 23 AND DECEMBER
1, 1940, AND THAT FUND IS HELD BY THE CLERK PENDING THE FURTHER ORDER
OF THE COURT (PARAGRAPH 45-A). 

WHILE USEFUL FOR THE PRESERVATION OF RIGHTS PENDING THE DETERMINATION
OF THIS LITIGATION, IN THE LIGHT OF WHAT IS HEREAFTER SAID AS TO THE
SUBSTANTIVE PROVISIONS OF THE DECREE, THE RECEIVERSHIP AND THE
IMPOUNDING OF FUNDS WERE NOT NECESSARY TO THE PRESCRIPTION OF
APPROPRIATE RELIEF.  THE RECEIVERSHIP SHOULD BE WOUND UP AND THE
BUSINESS RETURNED TO HARTFORD.  THE ROYALTIES PAID TO THE RECEIVER BY
HARTFORD'S LESSEES MAY, UNLESS THE DISTRICT COURT FINDS THAT HARTFORD
HAS, SINCE THE ENTRY OF THE RECEIVERSHIP DECREE, VIOLATED THE ANTITRUST
LAWS, OR ACTED CONTRARY TO THE TERMS OF THE FINAL DECREE AS MODIFIED BY
THIS OPINION, BE PAID OVER TO HARTFORD.  IN ANY EVENT HARTFORD SHOULD
RECEIVE OUT OF THESE ROYALTIES COMPENSATION ON A QUANTUM MERUIT BASIS,
FOR SERVICES RENDERED TO LESSEES.  THE OTHER FUNDS PAID INTO COURT AND
IMPOUNDED IN THE REGISTRY SHOULD BE REPAID TO THOSE WHO PAID THEM INTO
COURT. 

PARAGRAPHS 21, 22, AND 23 APPLY TO THE CORPORATE DEFENDANTS AND TO
ANY OF THE INDIVIDUAL DEFENDANTS WHO SHALL HEREAFTER ENGAGE IN THE
BUSINESS OF DISTRIBUTING GLASSWARE MACHINERY.  THEY FORBID ANY
DISPOSITION OR TRANSFER OF POSSESSION OF SUCH MACHINERY BY ANY MEANS
OTHER THAN AN OUTRIGHT SALE, AND REQUIRE HARTFORD TO OFFER IN WRITING
TO SELL EACH OF THE PRESENT LESSEES ALL THE MACHINERY NOW UNDER LEASE
TO SUCH LESSEE AT A REASONABLE PRICE TO BE FIXED IN CONSIDERATION OF
THE FEES AND ROYALTIES HERETOFORE PAID, ANY DISPUTE AS TO PRICE TO BE
SETTLED BY THE COURT.  ALL OF THE CORPORATE DEFENDANTS AND THE
INDIVIDUAL DEFENDANTS ARE REQUIRED, IF THEY ENGAGE IN THE BUSINESS OF
DISTRIBUTING GLASSMAKING MACHINERY, TO FILE A WRITING WITH THE COURT
AGREEING TO OFFER, AND TO CONTINUE TO OFFER, TO SELL ANY MACHINERY USED
IN THE MANUFACTURE OF GLASSWARE TO ANY APPLICANT AT REASONABLE AND
EQUAL PRICES AND UPON REASONABLE AND EQUAL TERMS AND CONDITIONS. 

ALL OF THE APPELLANTS ATTACK THESE PROVISIONS.  A COMMON GROUND IS
THAT THIS COURT HAS HELD THAT THE LEASE OF A PATENTED MACHINE IS A
LAWFUL METHOD OF EXERCISING THE EXCLUSIVE PATENT RIGHT OF PRACTICING OR
USING THE INVENTION N10, AND THAT EFFECTIVE RELIEF MAY BE AFFORDED
WITHOUT DESTROYING THE APPELLANTS' PROPERTY RIGHTS IN THE PATENTS THEY
OWN. 

HAZEL, THATCHER, AND BALL OBJECT TO THE INJUNCTION DIRECTED TO THEM
ON THE GROUND THAT NONE OF THEM HAS EVER BEEN IN THE BUSINESS OF
SELLING, LICENSING, OR DISTRIBUTING SUCH MACHINERY.  THE GOVERNMENT
REPLIES THAT THE INJUNCTION IS INTENDED ONLY TO PREVENT THEM FROM AGAIN
SETTING UP A PATENT POOL AND MONOPOLIZING THE PATENTED INVENTIONS.  THE
DECREE SHOULD ENJOIN THE DEFENDANTS FROM SETTING UP SUCH A POOL OR
COMBINING OR HEREAFTER AGREEING TO MONOPOLIZE THE GLASS MACHINERY OR
THE GLASSWARE INDUSTRY, AS WE THINK IT DOES IN OTHER PARAGRAPHS.  BUT
THE DECREE AS ENTERED REQUIRES THAT EACH OF THE DEFENDANTS MUST
HEREAFTER FOREVER ABSTAIN FROM LEASING A PATENTED MACHINE, NO MATTER
WHAT THE DATE OF THE INVENTION, AND COMPELS EACH OF THEM IF HE DESIRES
TO DISTRIBUTE PATENTED MACHINERY TO SELL THE MACHINE WHICH EMBODIES THE
PATENT TO EVERYONE WHO APPLIES, AT A PRICE TO BE FIXED BY THE COURT. 
THE INJUNCTION AS DRAWN IS NOT DIRECTED AT ANY COMBINATION, AGREEMENT
OR CONSPIRACY.  IT BINDS EVERY DEFENDANT FOREVER IRRESPECTIVE OF HIS
CONNECTION WITH ANY OTHER OR OF THE INDEPENDENCE OF HIS ACTION. 
PARAGRAPH 24 ENJOINS EACH OF THE CORPORATE AND INDIVIDUAL APPELLANTS
FROM ENGAGING IN THE DISTRIBUTION OF MACHINERY USED IN GLASS
MANUFACTURE OR IN THE DISTRIBUTION OF GLASSWARE IN INTERSTATE COMMERCE
UNLESS EACH FILES WITH THE COURT AN AGREEMENT (A) TO LICENSE, WITHOUT
ROYALTY OR CHARGE OF ANY KIND, AND FOR THE LIFE OF ALL PATENTS, ANY
APPLICANT TO MAKE, TO HAVE MADE FOR IT, AND TO USE ANY NUMBER OF
MACHINES AND METHODS EMBODIED IN INVENTIONS COVERED BY ANY PATENT OR
PATENT APPLICATION NOW OWNED OR CONTROLLED BY SUCH DEFENDANT; (B) TO
LICENSE, AT A REASONABLE ROYALTY (TO BE FIXED BY THE COURT, IN CASE OF
DISPUTE) ANY APPLICANT TO MAKE, HAVE MADE FOR IT, AND TO USE ANY NUMBER
OF MACHINES AND METHODS IN THE MANUFACTURE OF GLASSWARE EMBODYING
INVENTIONS COVERED BY PATENTS HEREAFTER APPLIED FOR OR OWNED OR
CONTROLLED BY ANY DEFENDANTS; (C) TO MAKE AVAILABLE TO ANY LICENSEE,
UNDER "(A)" AND "(B)," AT COST, PLUS A REASONABLE PROFIT, ALL DRAWINGS
AND PATTERNS "RELATING TO THE MACHINERY OR METHODS USED IN THE
MANUFACTURE OF GLASSWARE" EMBODIED IN THE LICENSED INVENTIONS (WITH
IMMATERIAL EXCEPTIONS). 

SINCE THE PROVISIONS OF PARAGRAPHS 21 TO 24 INCLUSIVE, IN EFFECT
CONFISCATE CONSIDERABLE PORTIONS OF THE APPELLANTS' PROPERTY, WE THINK
THEY GO BEYOND WHAT IS REQUIRED TO DISSOLVE THE COMBINATION AND PREVENT
FUTURE COMBINATIONS OF LIKE CHARACTER.  IT IS TO BE BORNE IN MIND THAT
THE GOVERNMENT HAS NOT, IN THIS LITIGATION, ATTACKED THE VALIDITY OF
ANY PATENT OR THE PRIORITY ASCRIBED TO ANY BY THE PATENT OFFICE, NOR
HAS IT ATTACKED, AS EXCESSIVE OR UNREASONABLE, THE STANDARD ROYALTIES
HERETOFORE EXACTED BY HARTFORD.  HARTFORD HAS REDUCED ALL OF ITS
ROYALTIES TO A UNIFORM SCALE AND HAS WAIVED AND ABOLISHED AND AGREED TO
WAIVE AND ABOLISH ALL RESTRICTIONS AND LIMITATIONS IN ITS OUTSTANDING
LEASES SO THAT EVERY LICENSEE SHALL BE AT LIBERTY TO USE THE MACHINERY
FOR THE MANUFACTURE OF ANY KIND OR QUANTITY OF GLASSWARE COMPREHENDED
WITHIN THE DECREE.  MOREOVER, IF LICENSES OR ASSIGNMENTS BY ANY ONE OF
THE CORPORATE DEFENDANTS TO ANY OTHER STILL CONTAIN ANY OFFENSIVE
PROVISION, SUCH PROVISION CAN, BY APPROPRIATE INJUNCTION, BE CANCELLED,
SO THAT THE OWNER OF EACH PATENT WILL HAVE UNRESTRICTED FREEDOM TO USE
AND TO LICENSE, AND EVERY LICENSEE EQUALLY WITH EVERY OTHER WILL BE
FREE OF RESTRICTION AS TO THE USE OF THE LEASED OR LICENSED MACHINERY,
METHOD OR PROCESS, OR THE ARTICLES MANUFACTURED THEREON OR THEREUNDER. 

IT IS SUGGESTED THAT THERE IS NOT CONFISCATION SINCE HARTFORD MIGHT,
WITH THE LATER CONSENT OF THE COURT, SELL ITS PATENTS.  UNDER THE
DECREE AS ENTERED BELOW NOTHING CAN BE OBTAINED BY HARTFORD FOR THE USE
OF ITS PATENTS AND WE CANNOT SPECULATE AS TO WHAT MIGHT BE THE ULTIMATE
ADJUSTMENTS MADE BY THE TRIAL COURT IN THE DECREE. 

IF, AS SUGGESTED, SOME OF HARTFORD'S PATENTS WERE IMPROPERLY
OBTAINED, OR IF SOME OF THEM WERE AWARDED A PRIORITY TO WHICH THE
INVENTION WAS NOT ENTITLED, AVENUES ARE OPEN TO THE GOVERNMENT TO RAISE
THESE QUESTIONS AND TO HAVE THE PATENTS CANCELLED.  BUT IF, AS WE MUST
ASSUME ON THIS RECORD, A DEFENDANT OWNS VALID PATENTS, IT IS DIFFICULT
TO SAY THAT, HOWEVER MUCH IN THE PAST SUCH DEFENDANT HAS ABUSED THE
RIGHTS THEREBY CONFERRED, IT MUST NOW DEDICATE THEM TO THE PUBLIC. 

THAT A PATENT IS PROPERTY, PROTECTED AGAINST APPROPRIATION BOTH BY
INDIVIDUALS AND BY GOVERNMENT, HAS LONG BEEN SETTLED.  FN11  IN
RECOGNITION OF THIS QUALITY OF A PATENT THE COURTS, IN ENJOINING
VIOLATIONS OF THE SHERMAN ACT ARISING FROM THE USE OF PATENT LICENSES,
AGREEMENTS, AND LEASES, HAVE ABSTAINED FROM ACTION WHICH AMOUNTED TO A
FORFEITURE OF THE PATENTS.  FN12 

THE GOVERNMENT URGES THAT SUCH FORFEITURE IS JUSTIFIED BY OUR RECENT
DECISIONS IN MORTON SALT CO. V. G.S. SUPPIGER CO., 314 U.S. 488, AND
B.B. CHEMICAL CO. V. ELLIS, 314 U.S. 495.  BUT THOSE CASES MERELY APPLY
THE DOCTRINE THAT, SO LONG AS THE PATENT OWNER IS USING HIS PATENT IN
VIOLATION OF THE ANTITRUST LAWS, HE CANNOT RESTRAIN INFRINGEMENT OF IT
BY OTHERS.  WE WERE NOT THERE CONCERNED WITH THE PROBLEM WHETHER, WHEN
A VIOLATION OF THE ANTITRUST LAWS WAS TO BE RESTRAINED AND
DISCONTINUED, THE COURT COULD, AS PART OF THE RELIEF, FORFEIT THE
PATENTS OF THOSE WHO HAD BEEN GUILTY OF THE VIOLATION.  LOWER FEDERAL
COURTS HAVE RIGHTLY REFUSED TO EXTEND THE DOCTRINE OF THOSE CASES TO
ANTITRUST DECREES BY INSERTING FORFEITURE PROVISIONS.  FN13 

LEGISLATIVE HISTORY IS ALSO ENLIGHTENING UPON THIS POINT.  REPEATEDLY
SINCE 1908 LEGISLATION HAS BEEN PROPOSED IN CONGRESS TO GIVE THE COURTS
POWER TO CANCEL A PATENT WHICH HAS BEEN USED AS AN INSTRUMENT TO
VIOLATE ANTITRUST LAWS.  FN14  CONGRESS HAS NOT ADOPTED SUCH
LEGISLATION.  THE TEMPORARY NATIONAL ECONOMIC COMMITTEE RECOMMENDED
IMPOSITION OF SUCH A PENALTY FOR VIOLATION OF ANTITRUST LAWS.  FN15
BUT ITS RECOMMENDATION WAS NOT ADOPTED BY CONGRESS. 

THE GOVERNMENT SUGGESTS THAT CERTAIN EARLIER DECISIONS UNDER THE
SHERMAN ACT, BY ANALOGY, SUPPORT THESE PORTIONS OF THE DECREE.  FN16
THE CASES CITED, HOWEVER, DO NOT SUSTAIN THE SUGGESTION.  IN ALL OF
THEM THE COURT REFRAINED FROM ORDERING COMPULSORY DEALING WITH THE
ASSETS OF THE DEFENDANT WITHOUT COMPENSATION AND, IN MOST OF THEM, THE
DECREES MERELY CALLED FOR REARRANGEMENT OF OWNERSHIP, NOT FOR ITS
DESTRUCTION. 

UNDER PARAGRAPH 24(B) A DEFENDANT HEREAFTER ACQUIRING A PATENT CANNOT
SET THE PRICE FOR ITS USE BY OTHERS, ELECT TO USE IT HIMSELF AND REFUSE
TO LICENSE IT, OR TO RETAIN IT AND NEITHER USE NOR LICENSE IT.  THESE
ARE OPTIONS PATENT OWNERS HAVE ALWAYS ENJOYED.  FN17 

CONGRESS WAS ASKED AS EARLY AS 1877, AND FREQUENTLY SINCE, TO ADOPT A
SYSTEM OF COMPULSORY LICENSING OF PATENTS N18.  IT HAS FAILED TO ENACT
THESE PROPOSALS INTO LAW.  IT HAS ALSO REJECTED THE PROPOSAL THAT A
PATENTEE FOUND GUILTY OF VIOLATION OF THE ANTITRUST LAWS SHOULD BE
COMPELLED, AS A PENALTY, TO LICENSE ALL HIS FUTURE INVENTIONS AT
REASONABLE ROYALTIES.  FN19  THE TEMPORARY NATIONAL ECONOMIC COMMITTEE
RECOMMENDED CONGRESSIONAL ADOPTION OF SUCH A SYSTEM,  FN20  BUT
CONGRESS TOOK NO ACTION TO THAT END. 

PARAGRAPH 24(A) OF THE DECREE SHOULD BE MODIFIED TO PERMIT THE
RESERVATION OF REASONABLE ROYALTIES AND ITS PROVISIONS SHOULD BE
RESTRICTED TO FEEDERS, FORMERS, STACKERS AND LEHRS AND PATENTS COVERING
THESE OR IMPROVEMENTS OF THEM, OR METHODS OR PROCESSES USED IN
CONNECTION WITH THEM. 

PARAGRAPH 24(B) SHOULD BE LIMITED IN RESPECT OF FUTURE APPLICATIONS
AND RESULTING PATENTS OR PATENTS HEREAFTER ACQUIRED BY ASSIGNMENT, TO
THOSE COVERING FEEDERS, FORMERS, STACKERS AND LEHRS, OR PARTS THEREOF
OR IMPROVEMENTS THEREON, AND METHODS AND PROCESSES INVOLVED IN THEIR
CONSTRUCTION AND OPERATION.  FOR EXAMPLE, IF BALL OR THATCHER SHOULD
PROCURE A PATENT ON A BOTTLE-CAPPING MACHINE OR FOR A COMPOSITION OF
GLASS, THERE IS NO REASON TO COMPEL A LICENSE TO HARTFORD OR HAZEL OR
ANYONE ELSE.  OTHER PARAGRAPHS OF THE DECREE PRECLUDE A MISUSE OF THE
PATENT IN VIOLATION OF THE ANTITRUST LAWS. 

PARAGRAPH 24(C) SHOULD BE DELETED. 

PARAGRAPH 25 RESTRAINS ALL THE CORPORATE AND INDIVIDUAL APPELLANTS,
WHENEVER REGULARLY ENGAGED IN THE MANUFACTURE OF GLASSWARE FOR
INTERSTATE COMMERCE, FROM DISCRIMINATION "BY MEANS OF WHOLLY EXCLUSIVE
OR PARTIALLY EXCLUSIVE REQUIREMENT CONTRACTS" "OR OTHERWISE" AGAINST
ANY SUCH MANUFACTURE, PRESENT OR PROSPECTIVE; OR IN THE FILLING OF
ORDERS FOR MACHINERY ON THE BASIS OF THE SIZE OF THE ORDER OR CREDIT
RATING OF THE CUSTOMER, IF HE IS WILLING TO PAY CASH, HIS STANDING IN
THE INDUSTRY OR OTHERWISE; AND FROM CONSPIRING WITH ANY OTHER PERSON OR
CORPORATION TO OBSTRUCT OR DELAY THE FURNISHING OF ANY SUCH MACHINERY. 

THE EARLIER PORTION OF THE PARAGRAPH IS VAGUE AND WOULD BE DIFFICULT
OF APPLICATION.  IT SEEMS NOT TO BE ADDRESSED TO ANY PRACTICE INDULGED
IN OR THREATENED BY ANY OF THE APPELLANTS.  IT SHOULD, THEREFORE, BE
MODIFIED OR ELIMINATED.  THE LAST FIVE LINES OF THE PARAGRAPH ARE
APPROPRIATE ALTHOUGH THE MATTERS COVERED BY THEM ARE APPARENTLY
EMBRACED IN OTHER PORTIONS OF THE DECREE. 

THATCHER AND BALL INSIST THAT NO SUCH INJUNCTION SHOULD BE DIRECTED
TO THEM FOR THE REASON THAT THEY ARE NOT NOW, AND NEVER HAVE BEEN, IN
THE BUSINESS OF OWNING MACHINERY PATENTS OR SELLING OR LICENSING
GLASSMAKING MACHINERY.  WE THINK, HOWEVER, IN VIEW OF THE FACT THAT
THEY HAVE BEEN FOUND TO HAVE CONSPIRED WITH HARTFORD AND THE OTHER
APPELLANTS IN DENYING AND OBSTRUCTING COMPETITORS FROM OBTAINING
MACHINERY, THE INJUNCTION, MODIFIED AS SUGGESTED, MAY STAND AGAINST
THEM. 

PARAGRAPH 26 ENJOINS ALL OF THE CORPORATE APPELLANTS, AND ALL OF THE
INDIVIDUALS ASSOCIATED WITH THEM, UNTIL THE ENTRY OF A FINDING BY THE
COURT ON THE PETITION OF ANY DEFENDANT THAT THE CONSEQUENCES OF THE
CONDUCT OF THE DEFENDANTS IN VIOLATION OF THE ANTITRUST LAWS HAVE BEEN
FULLY DISSIPATED, FROM THE FOLLOWING ACTS:  (A) BRINGING, MAINTAINING,
OR TAKING ANY ACTION IN ANY SUIT FOR INFRINGEMENT OF ANY PATENT OWNED
OR CONTROLLED OR HEREAFTER ISSUED ON PENDING APPLICATIONS COVERING
GLASSWARE MACHINERY; (B) ATTEMPTING TO INTERFERE, BY SUIT OR OTHERWISE,
WITH THE POSSESSION OF ANY MACHINERY OWNED, OR CLAIMED TO BE OWNED, BY
ANY APPELLANT WHICH IS IN THE POSSESSION OF ANY LICENSEE EXCEPT SALE TO
THE LICENSEE PURSUANT TO PARAGRAPH 21; (C) ATTEMPTING TO COLLECT
ROYALTIES OR LICENSE FEES FOR THE USE OF ANY INVENTIONS COVERED BY
EXISTING PATENTS OR APPLICATIONS FOR PATENTS FOR GLASSWARE MACHINERY. 

SINCE PARAGRAPHS 21 TO 24(A) INCLUSIVE ARE TO BE ELIMINATED, THIS
PARAGRAPH, WHICH IS ANCILLARY TO THEM, SHOULD ALSO BE DELETED FROM THE
DECREE, BUT IN VIEW OF THE NATURE OF THE CONSPIRACY FOUND, AN
INJUNCTION SHOULD GO AGAINST THE FURTHER PROSECUTION OF ALL
INFRINGEMENT SUITS PENDING AT THE DATE THIS SUIT WAS BROUGHT.  HARTFORD
AND THE OTHER CORPORATE DEFENDANTS MENTIONED IN PARAGRAPH 24 SHOULD BE
REQUIRED TO LEASE OR LICENSE GLASSMAKING MACHINERY OF THE CLASSES EACH
NOW MANUFACTURES TO ANY WHO MAY DESIRE TO TAKE LICENSES (UNDER PATENTS
ON SUCH MACHINERY OR ON IMPROVEMENTS, METHODS OR PROCESSES APPLICABLE
THERETO), AT STANDARD ROYALTIES AND WITHOUT DISCRIMINATION OR
RESTRICTION, AND IF AT THE TIME OF ENTRY OF THE DECREE THERE ARE ANY
ALLEGED INFRINGERS WHO ARE WILLING TO TAKE SUCH LICENSES THEY SHOULD BE
RELEASED, AND THE PATENT OWNER DEPRIVED OF ALL DAMAGES AND PROFITS
WHICH IT MIGHT HAVE CLAIMED FOR PAST INFRINGEMENT.  THE DECREE SHOULD,
HOWEVER, BE WITHOUT PREJUDICE TO THE FUTURE INSTITUTION OF ANY SUIT OR
SUITS FOR ASSERTED INFRINGEMENTS AGAINST PERSONS REFUSING TO TAKE
LICENSES UNDER ANY OF THE PRESENTLY LICENSED INVENTIONS ARISING OUT OF
THEIR USE AFTER THE DATE OF THE DECREE.  THE DECREE SHOULD NOT FORBID
ANY DEFENDANT FROM SEEKING RECOVERY FOR INFRINGEMENT, OCCURRING AFTER
THE DATE OF THE FINAL DECREE, OF PATENTS NOT COVERING FEEDERS, FORMERS,
STACKERS, LEHRS OR PROCESSES OR METHODS APPLICABLE TO ANY OF THEM. 

PARAGRAPH 27 CANCELS ALL OUTSTANDING AGREEMENTS BETWEEN CORPORATE
APPELLANTS, INCLUDING ALL MODIFICATIONS MADE PRIOR TO OR PENDING
TRIAL.  THIS IS CONSONANT WITH THE TERMS OF THE EARLIER PARAGRAPHS
WHICH REQUIRE CORPORATE APPELLANTS TO LICENSE ALL INVENTIONS INVOLVED,
ROYALTY FREE, AND TO SELL MACHINES EMBODYING SUCH INVENTIONS. 

IN VIEW OF WHAT WE HAVE ALREADY SAID ABOUT THESE EARLIER PARAGRAPHS,
THE LICENSE AGREEMENTS AS MODIFIED BY THE PARTIES AND IN ACCORDANCE
WITH THE VIEWS HERE EXPRESSED, SHOULD BE ALLOWED TO STAND.  AS HAS BEEN
NOTED, THESE ARE ALL AT UNIFORM ROYALTIES, AND ALL WITHOUT RESTRICTIONS
OR DISCRIMINATORY FEATURES.  WE DO NOT UNDERSTAND THAT, AS MODIFIED,
ANY OF THESE AGREEMENTS IS ATTACKED AS CONTAINING IMPROPER OR UNLAWFUL
PROVISIONS.  IF, HOWEVER, ANY OF THEM IS FOUND STILL TO EMBODY
PROVISIONS INCONSISTENT WITH THE FORM OF RELIEF WE HAVE OUTLINED, ITS
REFORMATION SHOULD BE DECREED.  THE APPELLANTS SHOULD BE ENJOINED FROM
HEREAFTER ALTERING THESE AGREEMENTS, OR ANY HEREAFTER MADE IN LIKE
TERMS, WITHOUT THE APPROVAL OF THE COURT.  IF THE EXISTING ROYALTIES
ARE EXCESSIVE THESE MAY BE REDUCED TO A FAIR AND REASONABLE BASIS.  THE
DECREE SHOULD PERMIT ANY CORPORATE APPELLANT, ACTING ALONE, TO LEASE OR
SELL PATENTED MACHINERY OR LICENSE THE USE OF PATENTS, IF IT SO ELECTS,
PROVIDED ALWAYS THAT NO DISCRIMINATION BE PRACTICED AND THAT NO
RESTRICTIVE CONDITIONS BE ATTACHED (EXCEPT AS STATED IN CONNECTION WITH
PARAGRAPH 29) SAVE WITH THE APPROVAL OF THE COURT. 

A WORD SHOULD BE SAID WITH RESPECT TO THE EFFECT OF THIS PARAGRAPH IN
CANCELLING THE AGREEMENT OF SEPTEMBER 23, 1940, BETWEEN HARTFORD-EMPIRE
AND CORNING, AND THE ASSIGNMENT OF THREE PATENTS TO CORNING PURSUANT
THERETO. 

IT WILL BE RECALLED THAT, PRIOR TO THE TRIAL, CORNING AND HARTFORD
CANCELLED THE 1916 AND 1922 AGREEMENTS WHICH THE COURT FOUND ILLEGAL
AND WHICH THE DECREE ORDERED CANCELLED NOTWITHSTANDING THE PARTIES'
PRIOR ACTION.  FURTHER, CORNING WAS GIVEN AN UNRESTRICTED LICENSE BY
HARTFORD WHICH WILL REQUIRE THE PAYMENT OF INCREASED ROYALTIES BY
CORNING FOR USE OF HARTFORD'S INVENTIONS.  IN CONSIDERATION OF THE
CANCELLATION OF THE AGREEMENTS, HARTFORD AGREED TO PAY CORNING
$1,125,000, IN INSTALLMENTS, AND TO TRANSFER TO CORNING THREE PATENTS
OWNED BY HARTFORD.  THE DECREE ORDERS THESE PAYMENTS IMPOUNDED, BUT
MAKES NO DISPOSITION OF THE IMPOUNDED FUND.  IT ALSO REQUIRES CORNING
TO REASSIGN THE PATENTS TO HARTFORD. 

TWO OF THE PATENTS HAVE EXPIRED.  THE REASON FOR CORNING'S DESIRE TO
OBTAIN TITLE TO THE PATENTS WAS THAT TWO OF THEM WERE ALLEGED TO
CONFLICT WITH CERTAIN FEATURES OF CORNING'S RIBBON MACHINE FN21
ALTHOUGH THE CLAIM WAS ALWAYS CONTESTED AND NEVER ESTABLISHED.  THESE
ARE THE TWO EXPIRED PATENTS.  THE THIRD WAS ALLEGED TO INFRINGE UPON A
FEATURE OF A CORNING PATENTED MACHINE KNOWN AS A TURRET CHAIN MACHINE. 
CONTINUED OWNERSHIP OF THE PATENT BY HARTFORD WOULD CONSTITUTE A THREAT
AGAINST THE USE BY CORNING OF THE MACHINE.  THE ASSIGNED PATENT WILL
EXPIRE SIX YEARS BEFORE CORNING'S PATENT ON THE TURRET CHAIN MACHINE. 
NATURALLY CORNING DESIRED TO BE FREE FROM THE POSSIBLE THREAT OF
INFRINGEMENT SUITS.  IT DOES NOT APPEAR THAT THE OWNERSHIP OF THIS
PATENT BY CORNING WOULD TEND TO PERPETUATE OR CREATE ANY IMPROPER
MONOPOLY OR PATENT POOL.  IN ANY EVENT, CORNING HAS AGREED, IF SUCH
DANGER IS FOUND TO EXIST, TO DEDICATE THE PATENT TO THE PUBLIC, SINCE
ALL IT DESIRES IS TO BE FREE OF RESTRAINT ON THE PART OF HARTFORD IN
THE USE OF ITS TURRET CHAIN MACHINE.  SUCH DEDICATION SHOULD BE
ORDERED.    IN THE LIGHT OF THESE FACTS, THE SETTLEMENT MADE BY
HARTFORD AND CORNING OUGHT NOT TO BE SET ASIDE NOR OUGHT THE PAYMENT TO
BE MADE BY HARTFORD TO CORNING THEREUNDER BE ENJOINED.  THE MONEY PAID
INTO COURT BY CORNING SHOULD BE RETURNED TO IT. 

THE PARAGRAPH ORDERS CANCELLATION OF THE AGREEMENTS OF JUNE 30, 1916
BETWEEN HARTFORD-FAIRMONT AND EMPIRE, AND THAT OF OCTOBER 26, 1922
BETWEEN HARTFORD, CORNING AND OTHERS.  THESE HAVE BEEN CANCELLED, BUT
THE DECREE SHOULD ENJOIN THEIR REINSTATEMENT, OR THE MAKING OF LIKE
CONTRACTS IN THE FUTURE. 

PARAGRAPH 28 ORDERS CANCELLATION OF ALL HARTFORD MACHINERY LEASES NOW
OUTSTANDING AND REQUIRES THAT EACH LESSEE BE OFFERED A NEW LICENSE
(WITHOUT ROYALTY, PURSUANT TO PARAGRAPH 24) AND OFFERED THE RIGHT TO
PURCHASE ALL OF THE MACHINERY NOW HELD UNDER LEASE (AS REQUIRED BY
PARAGRAPH 23).  IN VIEW OF WHAT HAS BEEN SAID THIS PROVISION SHOULD NOT
STAND. 

PARAGRAPH 29 ENJOINS THE INSERTION OR ENFORCEMENT OF ANY PROVISION IN
ANY AGREEMENT HERETOFORE OR HEREAFTER MADE BY ANY OF THE APPELLANTS
WHICH (A) DIRECTLY OR INDIRECTLY LIMITS OR RESTRICTS (1) THE TYPE OR
KIND OF PRODUCT, WHETHER GLASSWARE OR ANY OTHER, WHICH CAN BE PRODUCED
ON MACHINES OR EQUIPMENT OR BY PROCESSES EMBODYING INVENTIONS LICENSED
UNDER PATENTS OR PATENT APPLICATIONS, (2) THE USE OF THE PRODUCT SO
PRODUCED, (3) THE CHARACTER, WEIGHT, COLOR, CAPACITY, OR COMPOSITION OF
THE PRODUCT, (4) THE QUANTITY, (5) THE MARKET, EITHER AS TO TERRITORY
OR CUSTOMERS IN OR TO WHICH THE PRODUCT MAY BE SOLD OR DISTRIBUTED, (6)
THE PRICE OR TERMS OF SALE OR OTHER DISPOSITION OF THE PRODUCT, OR (7)
THE USE OF THE MACHINERY OR EQUIPMENT DISTRIBUTED OR THE INVENTIONS
LICENSED IN CONNECTION WITH ANY OTHER MACHINERY OR EQUIPMENT, OR THE
USE OF IT IN ANY SPECIFIED PLANT OR LOCALITY; (B) AUTHORIZES
TERMINATION OF THE LICENSE FOR UNAUTHORIZED USE; (C) PROVIDES THAT THE
LICENSEE SHALL NOT CONTEST THE VALIDITY OF ANY PATENT OR PATENTS OF THE
LICENSOR; (D) PROVIDES THAT IMPROVEMENTS BY THE LICENSEE ON MACHINERY
LEASED AND SOLD SHALL BECOME THE PROPERTY OF THE LESSOR; (E) PROVIDES
THAT RIGHTS TO IMPROVEMENTS AND INVENTIONS COVERING LICENSED MACHINERY
OR PROCESSES OR METHODS SHALL BECOME THE EXCLUSIVE PROPERTY OF THE
LESSOR OR VENDOR; OR (F) GRANTS TO ANY LICENSEE A PREFERENTIAL POSITION
BY LOWER RATES OF ROYALTY, BY DIFFERENT PROVISIONS OF LICENSING,
LEASING, OR SALE, BY EXCLUSIVE LICENSING, REBATE, DISCOUNTS OR
REQUIRING A SHARE IN NET OR GROSS INCOME, OR BY ANY OTHER MEANS. 

THE PARAGRAPH NOW COVERS EVERY KIND OF INVENTION AND EVERY PATENT,
PRESENT OR FUTURE, IN ANY FIELD IF OWNED OR CONTROLLED OR DISTRIBUTED
BY AN APPELLANT. 

THE INJUNCTION WILL STOP ALL INVENTIONS OR ACQUIREMENT OF PATENTS IN
ANY FIELD BY ANY APPELLANT UNLESS FOR ITS OWN USE IN ITS BUSINESS, FOR
IT SETS SUCH LIMITATIONS UPON THE REWARD OF A PATENT AS TO MAKE IT
PRACTICALLY WORTHLESS EXCEPT FOR USE BY THE OWNER.  IT IS UNLIMITED IN
TIME.  IT IS NOT LIMITED TO ANY JOINT ACTION OR CONSPIRACY VIOLATIVE OF
THE ANTITRUST LAWS; IT COVERS INVENTIONS IN EVERY CONCEIVABLE FIELD. 

THE GOVERNMENT NOW AGREES THAT THIS INJUNCTION SHOULD BE LIMITED TO
GLASSMAKING MACHINERY AND GLASSWARE AS DEFINED IN PARAGRAPH 1 OF THE
DECREE OF THE DISTRICT COURT. 

THE CORPORATE APPELLANTS HAVE AMENDED, OR AGREED TO AMEND, EXISTING
LEASES AND LICENSES TO REMOVE ALL SUCH RESTRICTIONS AS ARE ENJOINED. 
FN22  WE HAVE ALREADY SAID THAT THE DECREE SHOULD ENFORCE CONFORMITY OF
ALL LEASE AND LICENSE AGREEMENTS TO THIS STANDARD, AND FORBID THE
REINSTATEMENT OR EMBODIMENT OF ANY SUCH RESTRICTIONS IN EXISTING OR
FUTURE AGREEMENTS RELATING TO THE MACHINERY, METHODS OR PROCESSES
RESPECTING FEEDERS, FORMERS, STACKERS OR LEHRS OR INVOLVED IN THEIR
USE, COVERED BY PATENTS NOW OWNED OR APPLIED FOR OR THOSE HEREAFTER
ACQUIRED BY ANY CORPORATE APPELLANT. 

PARAGRAPH 29 SHOULD BE AMENDED TO PERMIT ANY APPELLANT, CORPORATE OR
INDIVIDUAL, TO RETAIN AND REFUSE TO LICENSE, TO USE AND REFUSE TO
LICENSE, OR TO LICENSE WITH RESTRICTIONS, ANY PATENT HEREAFTER APPLIED
FOR OR ACQUIRED EXCEPT THOSE APPLICABLE TO FEEDERS, FORMERS, STACKERS
AND LEHRS AND PROCESSES AND METHODS APPLICABLE THERETO.  ITS RESTRAINTS
SHOULD BE LIMITED AS WE HAVE INDICATED THOSE OF PARAGRAPH 24(B) SHOULD
BE LIMITED. 

PARAGRAPH 30 APPLIES ALL THE TERMS OF PARAGRAPH 29 TO AGREEMENTS
HEREAFTER MADE BETWEEN ANY OF THE DEFENDANTS.  THIS SHOULD BE MODIFIED
TO CONFORM TO THE ALTERATIONS TO BE MADE IN PARAGRAPH 29. 

PARAGRAPH 31 REQUIRES COURT APPROVAL OF "ANY AGREEMENT BETWEEN ANY OF
THE DEFENDANTS" AND "OF ANY LICENSE AGREEMENT MADE PURSUANT TO THIS
JUDGMENT."  THIS IS TOO SWEEPING.  THE PROVISION IS WITHOUT LIMIT OF
TIME AND NOT TERMINABLE UPON FULFILMENT OF ANY CONDITION.  MANY OF THE
INDIVIDUAL DEFENDANTS ARE EMPLOYEES OF ONE OF THE CORPORATE
DEFENDANTS.  AN EMPLOYMENT CONTRACT COULD NOT BE MADE WITH SUCH AN ONE
WITHOUT COURT APPROVAL.  NOR CAN ANY DEFENDANT ENTER INTO THE MOST
INNOCENT AND USUAL BUSINESS TRANSACTION WITH ANY OTHER, HOWEVER
UNRELATED TO THE CONSPIRACY, WITHOUT SIMILAR APPROVAL.  THIS PARAGRAPH,
IF RETAINED, SHOULD BE RESTRICTED IN APPLICATION TO LEASE OR LICENSE
AGREEMENTS AND AGREEMENTS RESPECTING PATENTS AND TRADE PRACTICES,
PRODUCTION AND TRADE RELATIONS. 

BY PARAGRAPH 33 EACH OF THE INDIVIDUAL DEFENDANTS IS ENJOINED FROM
"HOLDING, CONTROLLING, DIRECTLY OR INDIRECTLY, OR THROUGH CORPORATIONS,
AGENTS, TRUSTEES, REPRESENTATIVES, OR NOMINEES, ANY OF THE ISSUED AND
OUTSTANDING CAPITAL STOCK, BONDS, OR OTHER EVIDENCES OF INDEBTEDNESS OF
MORE THAN ONE CORPORATION ENGAGED EITHER IN THE MANUFACTURE AND SALE OF
GLASSWARE OR IN THE MANUFACTURE OR DISTRIBUTION OF MACHINERY USED IN
THE MANUFACTURE OF GLASSWARE OR IN BOTH...."  THE INDIVIDUAL DEFENDANTS
THUS ENJOINED ARE OFFICERS AND DIRECTORS OF THE CORPORATE DEFENDANTS. 
THE PURPOSE OF DEALING WITH STOCK OWNERSHIP IS TO PREVENT AGGREGATION
OF CONTROL TO THE END OF ESTABLISHING A MONOPOLY OR STIFLING
COMPETITION.  THE OWNERSHIP OF A FEW, OR EVEN A FEW HUNDRED, SHARES OF
STOCK OF A GLASS MANUFACTURING COMPANY NOT IN COMPETITION WITH THE
COMPANY OF WHICH A DEFENDANT HAPPENS TO BE A DIRECTOR OR OFFICER CAN
HAVE NO TENDENCY TOWARDS SUCH A RESULT.  MANY FOOD PACKERS AND MAKERS
OF PROPRIETARY ARTICLES MANUFACTURE PART OR ALL OF THE GLASSWARE IN
WHICH THEIR GOODS ARE SOLD.  THE DECREE WOULD REQUIRE ALL OF THE
DEFENDANTS, AT THEIR PERIL, TO PART WITH ANY STOCK WHICH THEY OWN IN
SUCH A CONCERN AND TO REFRAIN FROM BUYING ANY.  OWENS IS IN THE GLASS
CONTAINER BUSINESS.  IT HAS NEVER MANUFACTURED PRESSED OR BLOWN WARE OR
LIGHT BULBS, YET THE DECREE WOULD FORBID ANY DEFENDANT CONNECTED WITH
OWENS FROM INVESTING IN ANY CONCERN MANUFACTURING THESE ARTICLES.  IT
IS UNNECESSARY TO MULTIPLY INSTANCES OF THE BROAD SWEEP OF THE
PARAGRAPH. 

MOREOVER, THE INJUNCTION IS AGAINST OWNERSHIP OF BONDS OF ANY SUCH
COMPANY.  IT IS DIFFICULT TO SEE HOW SUCH OWNERSHIP IN ANY REASONABLE
AMOUNT BY ANY OF THE INDIVIDUALS IN QUESTION COULD TEND TOWARDS A
VIOLATION OF THE SHERMAN ACT.  THE PHRASE "EVIDENCE OF INDEBTEDNESS" IS
ALSO USED.  THIS WOULD INDICATE COMPLETE PROHIBITION AGAINST MAKING A
LOAN HOWEVER REASONABLE, OR HOWEVER PROPER THE PURPOSE, EVIDENCED BY A
PROMISSORY NOTE. 

THE DECREE SHOULD BE MODIFIED TO PROHIBIT ACQUISITION OF STOCKS OR
BONDS OF ANY CORPORATE APPELLANT BY ANY OTHER SUCH APPELLANT, AND TO
PROHIBIT ONLY THE ACQUISITION OF A MEASURE OF CONTROL THROUGH OWNERSHIP
OF STOCKS OR BONDS OR OTHERWISE, BY ANY INDIVIDUAL IN A COMPANY
COMPETING WITH THAT WITH WHICH HE IS OFFICIALLY CONNECTED OR A
SUBSIDIARY OR AFFILIATE OF SUCH COMPETING COMPANY. 

THE APPELLANTS FALCK, HOUGHTON, HOUGHTON JR. AND LEVIS OWN
SUBSTANTIAL AMOUNTS OF STOCK OF CORNING AND OF HARTFORD.  BY THE DECREE
THEY ARE REQUIRED TO DIVEST THEMSELVES OF THEIR STOCK IN THE ONE OR THE
OTHER WITHIN TWO YEARS FROM THE DATE OF THE JUDGMENT.  IN VIEW OF THE
EFFECT OF THE DECREE ON HARTFORD, IT MAY PROVE DIFFICULT FOR THESE
DEFENDANTS TO COMPLY WITHIN THE PERIOD STATED WITHOUT SEVERE LOSS.  WE
ARE OF OPINION THAT A LONGER TIME SHOULD BE ALLOWED AND THAT AN
ALTERNATIVE PROVISION WOULD BE APPROPRIATE DEPRIVING THESE DEFENDANTS
OF THE RIGHT TO VOTE THE STOCK OF ONE COMPANY OR THE OTHER OR TO
TRUSTEE THE STOCK OF ONE OF THE CORPORATIONS IF BOTH STOCKS ARE HELD
LONGER THAN THE TERM FIXED. 

PARAGRAPH 34 WHICH DEALS WITH PRESENT HOLDINGS OF INDIVIDUAL
APPELLANTS SHOULD BE REVISED TO COMPORT WITH THE VIEWS EXPRESSED AS TO
PARAGRAPH 33. 

PARAGRAPH 35 ENJOINS EACH INDIVIDUAL DEFENDANT FROM HOLDING, AT THE
SAME TIME, AN OFFICE OR DIRECTORSHIP IN MORE THAN ONE CORPORATION WHICH
MANUFACTURES AND SELLS GLASSWARE OR MANUFACTURES OR DISTRIBUTES
GLASSMAKING MACHINERY.  THE INJUNCTION IS NOT LIMITED TO DIRECTORSHIPS
IN MORE THAN ONE OF THE DEFENDANT CORPORATIONS.  THE SAME COMMENT
APPLIES AS HAS BEEN MADE WITH RESPECT TO PARAGRAPH 33.  THERE MAY BE
MANY INSTANCES WHEN THE NORMAL FREEDOM TO ACT AS A DIRECTOR OF MORE
THAN ONE COMPANY WILL IN NO WISE CONFLICT WITH THE POLICIES OF THE
ANTITRUST LAWS OR TEND TO THE FOSTERING OF PRACTICES WHICH THOSE LAWS
FORBID.  THE SAME CONSIDERATIONS APPLY TO PARAGRAPH 36-A AND 36-B,
WHICH SHOULD BE LIMITED TO THE ACQUISITION OF THE BUSINESS OR ASSETS OF
A COMPETING CORPORATION BY A CORPORATE DEFENDANT, AND BY ANY OFFICER OF
A CORPORATE DEFENDANT, OF THE BUSINESS OR ALL THE ASSETS OF A COMPETING
CONCERN, UNLESS THE ACQUISITION IS APPROVED BY THE COURT. 

PARAGRAPHS 37 TO 39 ARE DIRECTED AT THE GLASS CONTAINER ASSOCIATION,
ITS OFFICERS, DIRECTORS, EMPLOYES AND MEMBERS.  THE DISTRICT COURT HAS
FOUND THAT FROM 1928 TO 1937 THE ASSOCIATION, THROUGH THE
INSTRUMENTALITY OF ITS STATISTICAL COMMITTEE, ON WHICH THE PRINCIPAL
CORPORATE DEFENDANTS WERE REPRESENTED, FURNISHED FORECASTS OF PROBABLE
FUTURE PRODUCTION OF EACH OF THE GLASS MANUFACTURERS CONCERNED AND THAT
THESE FORECASTS WERE COMMUNICATED AT MEETINGS OF THE ASSOCIATION BY ONE
MANUFACTURER TO ANOTHER SO THAT THERE WAS GENERAL KNOWLEDGE AMONGST THE
MEMBERS OF THE FORECASTED FUTURE PRODUCTION OF EACH OF THEM.  THESE
FORECASTS, THE COURT FOUND, WERE TREATED BY THE CORPORATE APPELLANTS
AND THEIR OFFICERS AS IN FACT QUOTAS, DEVIATION FROM SUCH QUOTAS WAS
DISCOURAGED, AND IT WAS THE GENERAL UNDERSTANDING THAT EACH
MANUFACTURER SHOULD RESTRICT HIS PRODUCTION TO ACCORD WITH HIS QUOTA. 
THE COURT FURTHER FOUND THAT THE ASSOCIATION, WORKING IN CLOSE
COOPERATION WITH HARTFORD, WHICH WAS NOT A MEMBER, ENDEAVORED TO
DISCOURAGE EXPANSION OF THE INDUSTRY AND TO PREVENT INCREASED
COMPETITION THROUGH THE ENTRY OF NEW UNITS INTO THE VARIOUS FIELDS OF
MANUFACTURE OF GLASS CONTAINERS. 

THE COURT, IN ITS OPINION, INDICATES THAT IT DOES NOT FIND IT
NECESSARY TO DISSOLVE THE ASSOCIATION AND FURTHER INDICATES THAT IT MAY
SERVE A VALUABLE PURPOSE TO THE INDUSTRY "AS A STATISTICAL AND RESEARCH
BODY" AND IN THE PROMOTION OF BETTER METHODS OF MANUFACTURE AND
DISTRIBUTION. 

THE INJUNCTIONS ENTERED IN PARAGRAPHS 37 TO 39, INCLUSIVE, COMPEL THE
ASSOCIATION TO ABOLISH ITS STATISTICAL COMMITTEE AND TO REFRAIN FROM
ESTABLISHING ANY COMMITTEE WITH SIMILAR FUNCTIONS; ENJOIN IT FROM
RETAINING ANY OF ITS PRESENT OFFICERS OR BOARD OF DIRECTORS WHO ARE
DEFENDANTS AND ALSO DIRECTORS, OFFICERS OR EMPLOYES OF ANY DEFENDANT
CORPORATION, AND ORDER IT TO SUBMIT TO THE ATTORNEY GENERAL AND TO THE
COURT THE NAMES OF DIRECTORS OR OFFICERS TO BE ELECTED OR APPOINTED TO
SUCCEED PRESENT INCUMBENTS.  THE ASSOCIATION IS ENJOINED FROM ELECTING,
EMPLOYING, OR CONTINUING IN OFFICE OR EMPLOYMENT, ANYONE WHO IS, AT THE
TIME, AN OFFICER, DIRECTOR, AGENT OR EMPLOYE OF THE CORPORATE
APPELLANTS, AND IS REQUIRED TO AMEND ITS CHARTER AND BY-LAWS TO PREVENT
SUCH EMPLOYMENT. 

WE THINK THE INJUNCTION AS RESPECTS THE ASSOCIATION, WHILE LEAVING IT
IN EXISTENCE, PRACTICALLY DESTROYS ITS FUNCTIONING, EVEN AS AN INNOCENT
TRADE ASSOCIATION FOR WHAT HAVE BEEN HELD LAWFUL ENDS.  FN23  THE
ASSOCIATION HAS UNDOUBTEDLY BEEN AN IMPORTANT INSTRUMENT OF RESTRAINT
AND MONOPOLY.  IT MAY BE MADE SUCH AGAIN, AND DETECTION AND PREVENTION
AND PUNISHMENT FOR SUCH RESUMPTION OF VIOLATIONS OF LAW MAY BE
DIFFICULT IF NOT IMPOSSIBLE.  IN THE LIGHT OF THE RECORD, WE THINK IT
BETTER TO ORDER ITS DISSOLUTION, AND TO PROVIDE THAT THE CORPORATE
DEFENDANTS BE RESTRAINED FOR A PERIOD OF FIVE YEARS FROM FORMING OR
JOINING ANY SUCH TRADE ASSOCIATION, AND THAT THEREAFTER THEY MAY APPLY
FOR LEAVE TO DO SO, AND HAVE SUCH LEAVE ON SHOWING TO THE COURT THAT
THE PURPOSES AND ACTIVITIES OF THE PROPOSED BODY WILL NOT BE VIOLATIVE
OF LAW. 

PARAGRAPH 40 IS A GENERAL INJUNCTION AGAINST FUTURE CONDUCT.  IT IS
DESIGNED TO PREVENT COMBINATIONS, IN VIOLATION OF THE ANTITRUST
STATUTES.  IT NAMES EACH CORPORATE DEFENDANT "AND THE INDIVIDUAL
DEFENDANTS ASSOCIATED THEREWITH" MEANING THE OFFICERS AND DIRECTORS OF
EACH WHO ARE FOUND TO HAVE PARTICIPATED IN THE CONSPIRACY.  BUT AN
INJUNCTION BINDING THE CORPORATE DEFENDANTS, THEIR OFFICERS, AGENTS AND
EMPLOYES, IS SUFFICIENT TO CONSTRAIN THE INDIVIDUAL DEFENDANTS SO LONG
AS THEY REMAIN IN OFFICIAL RELATION, AND TO BIND THEIR SUCCESSORS.  IT
IS UNNECESSARY TO ENJOIN THEM PERSONALLY, WHEN THAT RELATION IS
SEVERED.    SUB-PARAGRAPH (1) PROHIBITS COMBINING WITH ANY OTHER
DEFENDANT OR WITH ANY OTHER MANUFACTURER OR "SELLER" OF GLASSWARE OR
GLASS MACHINERY.  THE APPELLANTS OBJECT TO THE INCLUSION OF THE WORD
"SELLER," CLAIMING THAT THE USE OF THIS TERM MAY PRECLUDE NORMAL
BUSINESS ARRANGEMENTS WITH AGENTS AND CONSIGNEES.  WE SHALL LATER
INDICATE THE PROVISO WE THINK NECESSARY IN THIS CONNECTION.  WE ARE OF
OPINION THAT THE SUB-PARAGRAPH SHOULD BE AMENDED BY EXSCINDING THE
PHRASE "ITS DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES" IN BOTH
CLAUSES, AND INSERTING THE WORDS "WHETHER A NATURAL PERSON, PARTNERSHIP
OR CORPORATION" AFTER THE WORD "GLASSWARE" APPEARING IN THE LAST LINE
OF THE PRINTED DRAFT OF THE DECREE FURNISHED THIS COURT BY THE
APPELLANTS.    SUB-PARAGRAPH (B) SHOULD BE AMENDED BY INSERTING THE
WORD "A" BETWEEN "OF" AND "MANUFACTURERS" (WHICH SHOULD BE IN THE
SINGULAR) IN THE FIRST LINE OF THE SAME DRAFT, DELETING THE WORDS "OR
EFFECT THEREOF" IN THE SIXTH LINE AND INSERTING IN LIEU THEREOF "OF
SUCH ASCERTAINMENT, ESTIMATE OR FORECAST" AND BY INSERTING IN THE NEXT
LINE BETWEEN THE WORDS "PERSUADE" AND "ANY" THE WORDS "OR AGREE WITH". 

SUB-PARAGRAPH (C) SHOULD BE AMENDED TO SUBSTITUTE IN THE SIXTH LINE
OF THE SAME DRAFT FOR "OR WHERE" THE WORD "WITH" AND FOR "OR EFFECT IS"
THE WORDS "OR AGREEMENT". 

SUB-PARAGRAPH (D) SHOULD BE DELETED.  THE REQUIREMENT THAT ALL TRADE
INFORMATION BE GIVEN TO THE PUBLIC WOULD RENDER THE ASSEMBLY OF IT FOR
THE INFORMATION OF MEMBERS USELESS AND INDEED DETRIMENTAL TO
COMPETITION.  THE INCLUSION OF SUCH A PROVISION IN AN ANTITRUST DECREE
HAS BEEN DISAPPROVED BY THIS COURT. 

PARAGRAPH (2) SHOULD BE MODIFIED BY ADDING AT THE END "IN THE
DISTRIBUTION OF GLASSWARE OR MACHINERY FOR THE MANUFACTURE OF
GLASSWARE". 

PARAGRAPH (3) WHICH DEALS WITH DISTRIBUTION OF DATA CONCERNING THE
BUSINESS OF GLASSMAKING AND GLASS MACHINERY DISTRIBUTION IS APPROVED
WITH THESE ALTERATIONS:  AFTER THE WORD "OTHERWISE" IN THE SEVENTH LINE
OF THE DRAFT THERE SHOULD BE INSERTED THE WORDS "PURSUANT TO ANY
AGREEMENT OR UNDERSTANDING OR WITH THE PURPOSE OR INTENT" AND THERE
SHOULD BE DELETED THE WORDS "IN SUCH FORM OR MANNER AS TO INDICATE";
AFTER THE WORD "MACHINERY" IN THE NEXT TO LAST LINE, THE SENTENCE
SHOULD READ, "SHALL LIMIT HIS OR ITS OUTPUT TO ANY PRODUCTION QUOTA OR
SHALL ADHERE OR CONFORM TO ANY PRICE". 

IN ORDER TO PERMIT USUAL BUSINESS TRANSACTIONS NOT RELATED TO
VIOLATIONS OF THE ANTITRUST STATUTES THERE SHOULD BE ADDED AT THE END
OF PARAGRAPH 40 A PROVISO THAT NOTHING IN THE PARAGRAPH IS TO BE
CONSTRUED TO FORBID NORMAL BUSINESS TRANSACTIONS OF ANY OF THE
CORPORATE DEFENDANTS WITH ITS SELLING AGENTS OR CONSIGNEES, PERSONS OR
CORPORATIONS RENDERING SERVICES TO IT, OR CUSTOMERS; OR TO PROHIBIT
TRANSACTIONS WITH CITIZENS OR CORPORATIONS OF FOREIGN NATIONS; OR TO
PREVENT ANY DEFENDANT FROM AVAILING OF THE BENEFITS OF THE WEBB
POMERENCE ACT, THE SMALL BUSINESS MOBILIZATION ACT OR (SAVE AS
ELSEWHERE IN THE DECREE PROVIDED) OF THE BENEFITS OF THE PATENT LAWS. 

PARAGRAPHS 41 AND 42 ARE DUPLICATIONS OF OTHER PROVISIONS OF THE
DECREE.  THEY SHOULD BE DELETED. 

PARAGRAPH 51 ENJOINS ALL DEFENDANTS FROM DIRECTLY OR INDIRECTLY
ACQUIRING, OTHERWISE THAN THROUGH DIRECT ISSUE FROM THE PATENT OFFICE,
ANY PATENT, PATENT APPLICATION, OR EXCLUSIVE RIGHTS THEREUNDER,
COVERING ANY INVENTION EMBODIED OR EMPLOYED IN A MACHINE OR PROCESS
USED, OR TO BE USED, IN GLASSWARE MANUFACTURE ("WHETHER OR NOT THE
MACHINE OR PROCESS EMBODYING OR EMPLOYING THE INVENTION COVERED BY THE
PATENT CAN BE USED WITHOUT INFRINGING ANOTHER PATENT OR PATENTS") WHICH
CONSTITUTES OR EMPLOYS, IN WHOLE OR IN PART, A METHOD, MEANS, OR
PROCESS TO OBTAIN RESULTS IN THE GLASSMAKING ART WHICH IS IDENTICAL
WITH, SIMILAR OR ALTERNATIVE TO, THOSE OBTAINED OR OBTAINABLE BY THE
MACHINERY, METHODS, OR PROCESSES EMBODYING INVENTIONS COVERED BY
PATENTS THEN OWNED OR CONTROLLED BY ANY DEFENDANT, EXCEPT NON-EXCLUSIVE
RIGHTS OR PATENTS ON INVENTIONS OF ITS OR HIS EMPLOYES OR THOSE OF A
SUBSIDIARY, MADE DURING THE TIME OF EMPLOYMENT. 

THE SCOPE OF THE PROVISION IS NOT CLEAR.  WHETHER IT APPLIES TO AN
IMPROVEMENT UPON AN EXISTING PATENTED INVENTION SEEMS DOUBTFUL. 
PERHAPS IT DOES NOT PREVENT AN OWNER OF A PATENT UPON A FEEDER FROM
ACQUIRING ONE UPON A FORMER, OR AN OWNER OF A PATENT UPON A STACKER
FROM ACQUIRING ONE UPON A LEHR, BUT, AS THE PROVISION IS FRAMED, THIS
IS NOT CLEAR.  THE INJUNCTION SEEMS IN EFFECT TO FORBID ACQUISITION BY
ANY DEFENDANT OF ANY PATENT RIGHT IN ANY GLASSMAKING FIELD, FOR MOST OF
THE CORPORATE DEFENDANTS, AND PERHAPS SOME OF THE INDIVIDUALS, NOW OWN
SOME SUCH PATENT. 

IT IS CLEAR, HOWEVER, THAT THE PARAGRAPH ENJOINS ALL ACQUISITION OF
PATENT RIGHTS OTHER THAN NON-EXCLUSIVE LICENSES.  IN THIS RESPECT, IT
IS THE REVERSE OF PARAGRAPH 29 WHICH OUTLAWS ALL GRANTS EXCEPT
UNRESTRICTED NON-EXCLUSIVE LICENCES.  IT WILL BE NOTED THAT THE
INJUNCTION RUNS AGAINST EACH DEFENDANT INDIVIDUALLY AND IS NOT
APPLICABLE TO JOINT ACQUISITIONS OR TO COMBINATIONS OR AGREEMENTS
RESPECTING ACQUISITION.  IT SEEMS TO PROHIBIT THE ACQUISITION OF ANY
PATENT, OR OF A RESTRICTED LICENSE UNDER ANY PATENT BY ANY DEFENDANT. 
IN THIS RESPECT THE PARAGRAPH IS INAPPROPRIATE TO RESTRAIN FUTURE
VIOLATIONS OF THE ANTITRUST STATUTES.  THE PARAGRAPH SHOULD BE
DELETED. 

PARAGRAPH 52 DEALS WITH THE PROBLEM OF SUPPRESSED OR UNWORKED
PATENTS.  MUCH IS SAID IN THE OPINION BELOW, AND IN THE BRIEFS, ABOUT
THE PRACTICE OF THE APPELLANTS IN APPLYING FOR PATENTS TO "BLOCK OFF"
OR "FENCE IN" COMPETING INVENTIONS.  IN THE COOPERATIVE EFFORT OF
CERTAIN OF THE APPELLANTS TO OBTAIN DOMINANCE IN THE FIELD OF PATENTED
GLASSMAKING MACHINERY, MANY PATENTS WERE APPLIED FOR TO PREVENT OTHERS
FROM OBTAINING PATENTS ON IMPROVEMENTS WHICH MIGHT, TO SOME EXTENT,
LIMIT THE RETURN IN THE WAY OF ROYALTY ON ORIGINAL OR FUNDAMENTAL
INVENTIONS.  THE DECREE SHOULD RESTRAIN AGREEMENTS AND COMBINATIONS
WITH THIS OBJECT.  BUT IT IS ANOTHER MATTER TO RESTRAIN EVERY
DEFENDANT, FOR THE INDEFINITE FUTURE, FROM ATTEMPTING TO PATENT
IMPROVEMENTS OF MACHINES OR PROCESSES PREVIOUSLY PATENTED AND THEN
OWNED BY SUCH DEFENDANT.  THIS PARAGRAPH IS, IN OUR JUDGMENT, TOO
BROAD.  IN EFFECT IT PROHIBITS SEVERAL OF THE CORPORATE DEFENDANTS FROM
APPLYING FOR PATENTS COVERING THEIR OWN INVENTIONS IN THE ART OF
GLASSMAKING.  FOR REASONS ELSEWHERE ELABORATED IT CANNOT BE SUSTAINED. 
IT SHOULD BE LIMITED AS WE HAVE SUGGESTED THAT PARAGRAPHS 24(B) AND 29
BE LIMITED.  IN ADDITION, IT ENJOINS EVERY DEFENDANT FROM APPLYING FOR
A PATENT "WITH THE INTENTION OF NOT MAKING COMMERCIAL USE OF THE
INVENTION WITHIN FOUR YEARS" FROM ISSUE OF THE PATENT AND MAKES THE
FAILURE COMMERCIALLY TO USE THE INVENTION PRIMA FACIE PROOF OF THE
ABSENCE OF SUCH INTENTION.  FN24  THIS PROVISION IS ALSO LEGISLATIVE
RATHER THAN REMEDIAL.  UNLESS WE ARE TO OVERTURN SETTLED PRINCIPLES THE
PARAGRAPH IN QUESTION MUST BE ELIMINATED. 

A PATENT OWNER IS NOT IN THE POSITION OF A QUASI-TRUSTEE FOR THE
PUBLIC OR UNDER ANY OBLIGATION TO SEE THAT THE PUBLIC ACQUIRES THE FREE
RIGHT TO USE THE INVENTION.  HE HAS NO OBLIGATION EITHER TO USE IT OR
TO GRANT ITS USE TO OTHERS.  IF HE DISCLOSES THE INVENTION IN HIS
APPLICATION SO THAT IT WILL COME INTO THE PUBLIC DOMAIN AT THE END OF
THE 17-YEAR PERIOD OF EXCLUSIVE RIGHT HE HAS FULFILLED THE ONLY
OBLIGATION IMPOSED BY THE STATUTE.  FN25  THIS HAS BEEN SETTLED
DOCTRINE SINCE AT LEAST 1896.  CONGRESS HAS REPEATEDLY BEEN ASKED, AND
HAS REFUSED, TO CHANGE THE STATUTORY POLICY BY IMPOSING A FORFEITURE
FN26  OR BY A PROVISION FOR COMPULSORY LICENSING N27 IF THE PATENT IS
NOT USED WITHIN A SPECIFIED TIME.  THE GOVERNING RULE IS QUOTED IN
CHAPMAN V. WINTROATH, 252 U.S. 126, AT 137: 

"'A PARTY SEEKING A RIGHT UNDER THE PATENT STATUTES MAY AVAIL HIMSELF
OF ALL THEIR PROVISIONS, AND THE COURTS MAY NOT DENY HIM THE BENEFIT OF
A SINGLE ONE.  THESE ARE QUESTIONS NOT OF NATURAL BUT OF PURELY
STATUTORY RIGHT.  CONGRESS, INSTEAD OF FIXING SEVENTEEN, HAD THE POWER
TO FIX THIRTY YEARS AS THE LIFE OF A PATENT.  NO COURT CAN DISREGARD
ANY STATUTORY PROVISIONS IN RESPECT TO THESE MATTERS ON THE GROUND THAT
IN ITS JUDGMENT THEY ARE UNWISE OR PREJUDICIAL TO THE INTERESTS OF THE
PUBLIC.'  UNITED STATES V. AMERICAN BELL TELEPHONE CO., 167 U.S. 224,
247." 

PARAGRAPH 55 REQUIRES SUBMISSION TO CERTAIN INVESTIGATIONS BY THE
DEPARTMENT OF JUSTICE AND THE FURNISHING OF INFORMATION WITH RESPECT TO
THE BUSINESS OF THE CORPORATE DEFENDANTS IN THE FUTURE.  IT SHOULD BE
MODIFIED TO ACCORD WITH OUR OPINION IN UNITED STATES V. BAUSCH & LOMB
CO., 321 U.S. 707, WHICH INVOLVED A SIMILAR PROVISION. 

A WORD SHOULD BE SAID CONCERNING THE INCLUSION IN MANY PARAGRAPHS OF
THE DECREE, AND IN MANY OF THE INJUNCTIONS IMPOSED, OF VARIOUS
INDIVIDUAL DEFENDANTS WHO IN THE PAST HAVE ACTED AS, AND WHO AT PRESENT
ARE, OFFICERS OR DIRECTORS OF THE CORPORATE DEFENDANTS.  THEY OFFENDED
AGAINST THE ANTITRUST LAWS BY ACTING ON BEHALF OF, OR IN THE NAME OF, A
CORPORATE DEFENDANT.  THERE ARE NO FINDINGS, AND WE ASSUME THERE IS NO
EVIDENCE, THAT ANY OF THEM HAVE APPLIED FOR, OWNED, DEALT IN, AND
LICENSED PATENTS APPERTAINING TO THE GLASSWARE ART. NOR IS THERE
EVIDENCE OR FINDING THAT, AS INDIVIDUALS ACTING FOR THEIR OWN ACCOUNT,
ANY OF THEM, AS A PRINCIPAL, HAS ENTERED INTO ANY OF THE ARRANGEMENTS
FOUND UNLAWFUL BY THE COURT.  DESPITE THESE FACTS, IN PRACTICALLY EVERY
INSTANCE WHERE A CORPORATE DEFENDANT IS RESTRAINED FROM DESCRIBED
ACTION OR CONDUCT, THESE INDIVIDUALS, AS INDIVIDUALS, ARE LIKEWISE
RESTRAINED.  ANY INJUNCTION ADDRESSED TO A CORPORATE DEFENDANT MAY, AS
VARIOUS SECTIONS OF THE DECREE DO, INCLUDE ITS OFFICERS AND AGENTS.  IF
THE INDIVIDUAL DEFENDANTS ARE OFFICERS OR AGENTS THEY WILL BE
COMPREHENDED AS SUCH BY THE TERMS OF THE INJUNCTION.  IF ANY OF THEM
CEASE TO BE SUCH, NO REASON IS APPARENT WHY HE MAY NOT PROCEED, LIKE
OTHER INDIVIDUALS, TO PROSECUTE WHATEVER LAWFUL BUSINESS HE CHOOSES
FREE OF THE RESTRAINT OF AN INJUNCTION.  ON THE OTHER HAND, IF NEW
OFFICERS AND DIRECTORS TAKE THE PLACES OF THESE DEFENDANTS, SUCH NEW
AGENTS WILL AUTOMATICALLY COME UNDER THE TERMS OF THE INJUNCTION. 
THERE IS NO APPARENT NECESSITY FOR INCLUDING THEM INDIVIDUALLY IN EACH
PARAGRAPH OF THE DECREE WHICH IS APPLICABLE TO THE CORPORATE DEFENDANTS
WHOSE AGREEMENTS AND COOPERATION CONSTITUTE THE GRAVAMEN OF THE
COMPLAINT.  THAT THESE INDIVIDUALS MAY HAVE RENDERED THEMSELVES LIABLE
TO PROSECUTION  FN28  BY VIRTUE OF THE PROVISIONS OF SEC. 14 OF THE
CLAYTON ACT  FN29  IS BESIDE THE POINT, SINCE RELIEF IN EQUITY IS
REMEDIAL, NOT PENAL.  THESE CONSIDERATIONS, HOWEVER, DO NOT APPLY TO
THE PROVISIONS OF PARAGRAPHS 3 TO 7 AND 33 TO 35 INCLUSIVE, AS THE SAME
ARE TO BE MODIFIED. 

PARAGRAPH 42 REQUIRES BALL TO CANCEL CERTAIN AGREEMENTS WITH THE KNOX
GLASS BOTTLE COMPANY AND UNDERWOOD, AND WITH BROCKWAY MACHINE BOTTLE
COMPANY AND ROBERT L. WARREN, WHICH EXCLUDED THE PARTIES NAMED FROM
ENTERING THE GLASS CONTAINER BUSINESS FOR PERIODS OF YEARS.  AS IT
APPEARS WITHOUT CONTRADICTION THAT THESE RESTRICTIONS HAVE ALREADY BEEN
RELEASED BY BALL, THE PARAGRAPH SEEMS UNNECESSARY. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AS TO THE APPELLANTS
IN NOS. 10 AND 11; ITS DECISION THAT THE APPELLANTS IN THE OTHER
APPEALS HAVE VIOLATED THE ANTITRUST LAWS AND SHOULD BE ENJOINED FROM
FUTURE SIMILAR VIOLATIONS IS AFFIRMED, BUT THE DECREE ENTERED IS
VACATED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY
TO THIS OPINION. 

FN1  46 F.SUPP.  541. 

FN2  15 U.S.C. SECS. 1 AND 2. 

FN3  15 U.S.C. SEC. 14. 

FN4  STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 77-78. 

FN5  ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 461. 

FN6  LOCAL 167 V. UNITED STATES, 291 U.S. 293, 299. 

FN7  SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 396; LABOR BOARD V.
EXPRESS PUBLISHING CO., 312 U.S. 426, 433, 435-6. 

FN8  NEW YORK, N.H. & H.R. CO. V. INTERSTATE COMMERCE COMM'N, 200
U.S. 361, 404; STANDARD OIL CO. V. UNITED STATES, SUPRA, 80. 

FN9  RULE 65(D), 28 U.S.C.A. FOLLOWING SEC. 723C; SEC. 19 OF THE
CLAYTON ACT, 38 STAT. 738, 28 U.S.C. SEC. 383; SWIFT & CO. V. UNITED
STATES, 196 U.S. 375, 396, 401. 

FN10  UNITED STATES V. UNITED SHOE MACHINERY CO., 247 U.S. 32; UNITED
SHOE MACHINERY CORP. V. UNITED STATES, 258 U.S. 451, 462.  IN THIS CASE
THE COURT DIVIDED ON THE QUESTION OF THE LEGALITY OF CERTAIN TERMS OF
THE LEASES IN QUESTION, BUT THE DISSENTING JUSTICES DID NOT SUGGEST
THAT A LEASE WAS NOT AN APPROPRIATE METHOD OF EXERCISING RIGHTS UNDER
THE PATENT.  CF. INTERNATIONAL BUSINESS MACHINES CORP. V. UNITED
STATES, 298 U.S. 131. 

FN11  JAMES V. CAMPBELL, 104 U.S. 356, 357, 358; HOLLISTER V.
BENEDICT & BURNHAM MFG. CO., 113 U.S. 59, 67; WM. CRAMP & SONS CO. V.
INTERNATIONAL CURTIS MARINE CO., 246 U.S. 28, 39-40; UNITED STATES V.
DUBILIER CONDENSER CORP., 289 U.S. 178, 189. 

FN12  SEE STANDARD SANITARY MFG. CO. V. UNITED STATES, 226 U.S. 20. 
DECREES AND JUDGMENTS IN FEDERAL ANTITRUST CASES (1918) P. 265; UNITED
STATES V. MOTION PICTURE PATENTS CO., 225 F. 800, APPEAL DISMISSED 247
U.S. 524.  DECREES AND JUDGMENTS IN FEDERAL ANTITRUST CASES (1918) PP.
379-380; UNITED SHOE MACHINERY CORP. V. UNITED STATES, 258 U.S. 451;
ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436; UNITED STATES V.
UNIVIS LENS CO., 316 U.S. 241. 

FN13  AMERICAN LECITHIN CO. V. WARFIELD CO., 105 F.2D 207, 211;
NOVADEL-AGENE CORP. V. PENN, 119 F.2D 764, 766-7; SYLVANIA INDUSTRIAL
CORP. V. VISKING CORP., 132 F.2D 947, 958; UNIVERSAL SEWER PIPE CORP.
V. GENERAL CONSTRUCTION CO., 42 F.SUPP.  132, 134; AMERICAN LECITHIN
CO. V. WARFIELD CO., 42 F.SUPP.  270, 272. 

FN14  H.R. 20388, 60TH CONG., 1ST SESS. (1908); H.R. 11796, 61ST
CONG., 1ST SESS. (1909); H.R. 2930, 62D CONG., 1ST SESS. (1911); H.R.
16828, 62D CONG., 2D SESS. (1912); H.R. 23417, AS AMENDED, 62D CONG.,
2D SESS. (1912); H.R. 1700, 63D CONG., 1ST SESS. (1913); H.R. 14865,
63D CONG., 2D SESS. (1914); S. 2783, 70TH CONG., 2D SESS. (1928); S.
2491, 77TH CONG., 2D SESS. (1942).    FN15  FINAL REPORT AND
RECOMMENDATIONS OF THE TEMPORARY NATIONAL ECONOMIC COMMITTEE, SEN. DOC.
NO. 35, PP. 36-7(1941), 77TH CONG., 1ST SESS.  SEE ALSO PRELIMINARY
REPORT SEN. DOC. NO. 95, PP. 16-17(1939), 76TH CONG., 1ST SESS. 

FN16  UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106; UNITED
STATES V. TERMINAL RAILROAD ASSOCIATION, 224 U.S. 383; UNITED STATES V.
GREAT LAKES TOWING CO., 217 F. 656, APPEAL DISMISSED 245 U.S. 675;
UNITED STATES V. NEW ENGLAND FISH EXCHANGE, 258 F. 732; UNITED STATES
V. PULLMAN CO., 50 F.SUPP.  123. 

FN17  PAPER BAG PATENT CASE, 210 U.S. 405, 424; MOTION PICTURE
PATENTS CO. V. UNIVERSAL FILM MFG. CO., 243 U.S. 502, 510, 514; CROWN
DIE & TOOL CO. V. NYE TOOL & MACHINE WORKS, 261 U.S. 24, 34-35. 

FN18  H.R. 8776, 62D CONG., 1ST SESS. (1911); S. 2116, 62D CONG., 1ST
SESS. (1911); H.R. 26185, 62D CONG., 2D SESS. (1912); S. 2303, 77TH
CONG., 2D SESS. (1942); S. 2730, 77TH CONG., 2D SESS. (1942); H.R.
1371, 78TH CONG., 1ST SESS. (1943); CF. S. 300, 45TH CONG., 1ST SESS.
(1877). 

FN19  S. 2783, 70TH CONG., 2D SESS. (1928). 

FN20  FINAL REPORT AND RECOMMENDATIONS OF THE TEMPORARY NATIONAL
ECONOMIC COMMITTEE, SENATE DOC. NO. 35, PP. 36-7(1941), 77TH CONG., 1ST
SESS. 

FN21  THERE IS NO CLAIM THAT THE RIBBON MACHINE PATENT WAS EVER PART
OF A COMBINATION OF PATENTS. 

FN22  THE GOVERNMENT CALLS ATTENTION TO FINDINGS WHICH SHOW THAT
THOUGH HARTFORD ADVISED CERTAIN LICENSEES OF THE REMOVAL OF
RESTRICTIONS IN THEIR LICENSES, THESE LICENSEES HAVE NOT FORMALLY
ACCEPTED THE MORE LIBERAL TERMS.  HARTFORD CAN BE ENJOINED FROM
ENFORCING THE RESTRICTIONS IF THAT IS FOUND NECESSARY. 

FN23  SEE MAPLE FLOORING MANUFACTURERS ASSOCIATION V. UNITED STATES,
268 U.S. 563, 582, 583; CEMENT MANUFACTURERS PROTECTIVE ASSOCIATION V.
UNITED STATES, 268 U.S. 588, 606; APPALACHIAN COALS V. UNITED STATES,
288 U.S. 344, 374; SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553,
598. 

FN24  THE GOVERNMENT SUGGESTS THAT THE PARAGRAPH SHOULD BE REVISED TO
READ:  "WITH THE INTENTION OF NEVER MAKING COMMERCIAL USE OF THE
INVENTIONS COVERED THEREBY, PROVIDED THAT FAILURE TO MAKE SUCH USE
WITHIN FOUR YEARS FROM THE DATE OF ISSUANCE OF PATENTS THEREON SHALL BE
DEEMED PRIMA FACIE PROOF OF THE PRESENCE OF SUCH INTENTION AT THE TIME
OF THE FILING OR PROSECUTION OF SUCH APPLICATIONS." 

FN25  UNITED STATES V. BELL TEL. CO., 167 U.S. 224, 249; CONTINENTAL
PAPER BAG CO. V. EASTERN PAPER BAG CO., 210 U.S. 405, 424, 429, 430. 

FN26  H.R. 13876, 62D CONG., 1ST SESS. (1911); H.R. 22203, 62D CONG.,
2D SESS. (1912); S. 3297, 67TH CONG., 2D SESS. (1922); H.R. 6864, 75TH
CONG., 1ST SESS. (1937). 

FN27  S. 3325, 67TH CONG., 2D SESS. (1922); S. 3474, 69TH CONG., 1ST
SESS. (1926); S. 705, 70TH CONG., 1ST SESS. (1927); S. 203, 71ST CONG.,
1ST SESS. (1929); S. 22, 72D CONG., 1ST SESS. (1931); S. 290, 73D
CONG., 1ST SESS. (1933); S. 383, 74TH CONG., 1ST SESS. (1935); S. 2491,
77TH CONG., 2D SESS. (1942). 

FN28 UNITED STATES V. SOCONY-VACUUM OIL CO., 23 F.SUPP.  937,
AFFIRMED 310 U.S. 150. 

FN29  38 STAT. 736; 15 U.S.C. SEC. 24.  "THAT WHENEVER A CORPORATION
SHALL VIOLATE ANY OF THE PENAL PROVISIONS OF THE ANTITRUST LAWS, SUCH
VIOLATION SHALL BE DEEMED TO BE ALSO THAT OF THE INDIVIDUAL DIRECTORS,
OFFICERS, OR AGENTS OF SUCH CORPORATION WHO SHALL HAVE AUTHORIZED,
ORDERED, OR DONE ANY OF THE ACTS CONSTITUTING IN WHOLE OR IN PART SUCH
VIOLATION, AND SUCH VIOLATION SHALL BE DEEMED AS MISDEMEANOR  ..." 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING IN PART. 

I AGREE WITH THE COURT'S JUDGMENT INSOFAR AS IT SUSTAINS THE DECREE
OF THE DISTRICT JUDGE. 

I CANNOT, HOWEVER, AGREE TO MANY OF THE MODIFICATIONS OF THAT
DECREE.  THESE APPELLANTS HAVE VIOLATED THE ANTI-TRUST LAWS.  THE
DISTRICT COURT'S DECREE, TAKEN AS A WHOLE, IS AN EFFECTIVE REMEDY,
ADMIRABLY SUITED TO NEUTRALIZE THE CONSEQUENCES OF SUCH VIOLATIONS, TO
GUARD AGAINST REPETITION OF SIMILAR ILLEGAL ACTIVITIES, AND TO
DISSIPATE THE UNLAWFUL AGGREGATE OF ECONOMIC POWER WHICH AROSE OUT OF,
AND FED UPON, MONOPOLIZATION AND RESTRAINTS.  UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173.  MANY OF THIS COURT'S MODIFICATIONS
SERIOUSLY IMPAIR THE DECREE AND FRUSTRATE ITS PURPOSES. 

IT WOULD PROBABLY SERVE NO USEFUL PURPOSE TO STATE AT LENGTH THE
REASONS WHICH JUSTIFY THE DISTRICT COURT'S DECREE, SINCE THEY ARE SET
FORTH CLEARLY AND WELL IN ITS OPINION.  IN PARTICULAR, HOWEVER, IT IS
MY BELIEF THAT ANY REASONABLE ASSURANCE THAT THESE APPELLANTS WILL NOT
CONTINUE TO VIOLATE THE ANTI-TRUST LAW REQUIRES THAT WE LEAVE INTACT
THE DISTRICT COURT'S DECREE INSOFAR AS IT (1) PROVIDES FOR APPOINTMENT
OF A RECEIVER AND THE IMPOUNDING OF HARTFORD'S ROYALTIES (PARAGRAPHS 10
20 OF THE DECREE); (2) REQUIRES THAT GLASSWARE MACHINES SHOULD BE
DISPOSED OF BY OUTRIGHT SALE RATHER THAN BY LEASES (PARAGRAPHS 21, 22,
23); (3) REQUIRES THAT PATENTS, ALREADY OWNED, BE LICENSED ROYALTY
FREE; (4) PROHIBITS THE RESTRICTIVE LICENSING PRACTICES WHICH THE
APPELLANTS SO EFFECTIVELY USED TO CREATE AND MAINTAIN THEIR MONOPOLY
(PARAGRAPH 29); (5) ENJOINS THE APPELLANTS FROM THE PRACTICE OF
OBTAINING PATENTS FOR THE PURPOSE OF "FENCING IN" AND "BLOCKING OFF"
NEW INVENTIONS, (PARAGRAPH 52). 

THE DISTRICT COURT'S OPINION IN MY JUDGMENT LAID A CAREFUL AND WELL
REASONED FOUNDATION ESTABLISHING THE NECESSITY FOR EVERY ONE OF THESE
PARAGRAPHS.  IT WOULD BE DIFFICULT TO ADD TO WHAT THE COURT THERE
SAID.  IT IS SUFFICIENT FOR ME TO SAY ONLY A FEW WORDS. 

THE DISTRICT COURT FOUND THAT THESE DEFENDANTS STARTED OUT IN 1916 TO
ACQUIRE A MONOPOLY ON A LARGE SEGMENT OF THE GLASS INDUSTRY.  THEIR
EFFORTS WERE REWARDED BY COMPLETE SUCCESS.  THEY HAVE BECOME ABSOLUTE
MASTERS OF THAT DOMAIN OF OUR PUBLIC ECONOMY.  THEY ACHIEVED THIS
RESULT LARGELY THROUGH THE MANIPULATION OF PATENTS AND LICENSING
AGREEMENTS.  THEY OBTAINED PATENTS FOR THE EXPRESS PURPOSE OF
FURTHERING THEIR MONOPOLY.  THEY UTILIZED VARIOUS TYPES OF RESTRICTIONS
IN CONNECTION WITH LEASING THOSE PATENTS SO AS TO RETAIN THEIR
DOMINANCE IN THAT INDUSTRY.  THE HISTORY OF THIS COUNTRY HAS PERHAPS
NEVER WITNESSED A MORE COMPLETELY SUCCESSFUL ECONOMIC TYRANNY OVER ANY
FIELD OF INDUSTRY THAN THAT ACCOMPLISHED BY THESE APPELLANTS.  THEY
PLANNED THEIR MONOPOLISTIC PROGRAM ON THE BASIS OF GETTING AND KEEPING
AND USING PATENTS, WHICH THEY DEDICATED TO THE DESTRUCTION OF FREE
COMPETITION IN THE GLASS CONTAINER INDUSTRY.  THEIR DECLARED OBJECT WAS
"TO BLOCK THE DEVELOPMENT OF MACHINES WHICH MIGHT BE CONSTRUCTED BY
OTHERS  ..."  AND "TO SECURE PATENTS ON POSSIBLE IMPROVEMENTS OF
COMPETING MACHINES, SO AS TO 'FENCE IN' THOSE AND PREVENT THEIR
REACHING AN IMPROVED STATE."  THESE PATENTS WERE THE MAJOR WEAPONS IN
THE CAMPAIGN TO SUBJUGATE THE INDUSTRY; THEY WERE ALSO THE FRUITS OF
APPELLANTS' VICTORY.  THE RESTORATION OF COMPETITION IN THE GLASS
CONTAINER INDUSTRY DEMANDS THAT APPELLANTS BE DEPRIVED OF THESE
WEAPONS.  THE MOST EFFECTIVE WAY TO ACCOMPLISH THIS END IS TO REQUIRE,
AS THE DISTRICT COURT DID, THAT THESE PATENTS BE LICENSED ROYALTY
FREE. 

THE DECREE OF THE COURT BELOW WAS WELL FASHIONED TO PREVENT A
CONTINUATION OF APPELLANTS' MONOPOLISTIC PRACTICES.  THE DECREE AS
MODIFIED LEAVES THEM FREE, IN A LARGE MEASURE, TO CONTINUE TO FOLLOW
THE COMPETITION-DESTROYING METHODS BY WHICH THEY ACHIEVED CONTROL OF
THE INDUSTRY.  IN FACT, THEY HAVE RECEIVED MUCH MILDER TREATMENT FROM
THIS COURT THAN THEY ANTICIPATED.  THIS IS SHOWN BY A MEMORANDUM OF ONE
OF HARTFORD'S OFFICERS MADE IN 1925.  THAT MEMORANDUM WHICH DISCUSSED
PLANS FOR SUPPRESSION OF A NUMBER OF COMPETITORS, WITH PARTICULAR
REFERENCE TO POSSIBLE PROSECUTIONS UNDER THE SHERMAN ACT, READ IN PART
AS FOLLOWS: 

"OF COURSE, THE COURT MIGHT ORDER THAT WE TRANSFER THE ENTIRE FEDERAL
LICENSING BUSINESS TO SOME OTHER PARTY AND TURN OVER TO THAT PARTY THE
FEDERAL PATENTS.  THIS, OF COURSE, WOULD SIMPLY RESTORE TO A CERTAIN
EXTENT THE EXISTING SITUATION AND ESTABLISH A COMPETITOR....  I  ...
DO NOT SEE MUCH DANGER OF HAVING ANY OF THESE DEALS UPSET....  IF THEY
ARE UPSET, I STILL BELIEVE THAT BY THAT TIME, WE WILL BE IN A BETTER
POSITION EVEN WITH SUCH DISSOLUTION THAN WE WOULD BE OTHERWISE; AND I
SEE NO DANGER WHATSOEVER OF ANY CRIMINAL LIABILITY BECAUSE THE CASES
ARE NECESSARILY SO DOUBTFUL IN THE MATTER OF LAW THAT THEY COULD NEVER
GET ANY JURY TO CONVICT AND I DOUBT IF ANY PROSECUTING OFFICER WOULD
EVER ATTEMPT ANY CRIMINAL ACTION.  CRIMINAL ACTION IN CASES OF THIS
SORT, SO FAR, HAS PRACTICALLY BEEN NONEXISTENT." 

I WOULD SUSTAIN THE DECREE OF THE DISTRICT COURT, FOR THE REASONS IT
GAVE, IN ALL OF THE PARAGRAPHS MENTIONED. 

MR. JUSTICE RUTLEDGE, DISSENTING IN PART. 

WITH MR. JUSTICE BLACK, IN WHOSE OPINION I JOIN, I CONCUR IN THE
COURT'S JUDGMENT TO THE EXTENT THAT IT SUSTAINS THE DISTRICT COURT'S
FINDINGS AND DECREE.  BUT, WITH TWO EXCEPTIONS, I DISSENT FROM THE MORE
IMPORTANT REVISIONS MADE IN THE DECREE. 

IN ANTI-TRUST INJUNCTION SUITS THE COURT'S FUNCTION IS TWOFOLD, TO
DETERMINE LIABILITY AND TO FASHION THE REMEDY TO FIT THE FAULT. 
PERHAPS IN SOME CASES THE TWO THINGS MAY BE TREATED SUBSTANTIALLY
INDEPENDENTLY.  MORE OFTEN THEY ARE SO INTERWOVEN THAT SEPARATION
BECOMES IMPOSSIBLE, IF OTHER THAN WARPED JUSTICE IS DONE.  THIS CASE IS
OF THE LATTER SORT.  BUT THE COURT'S MODIFICATIONS LARGELY DISREGARD
THIS FACT. 

THE STORY INVOLVES A QUARTER OF A CENTURY OF SHERMAN ACT VIOLATION. 
FN1  NECESSARILY IT HAS BEEN SKETCHED HERE ONLY IN OUTLINE.  THE BARE
BONES OF THE HISTORY SHOW, AS RARELY HAS BEEN DONE, THE COMBINATION'S
EXPANDING SCOPE, THE CORRESPONDING GROWTH OF DESIGN, THE VARIED, BUT
OFTEN DEVIOUS AND RUTHLESS METHODS, AS WELL AS THE ULTIMATE TOTAL
SUCCESS OF THIS LONG ADVENTURE IN MONOPOLY AND UNLAWFUL RESTRAINT OF
TRADE.  FN2  WITHOUT THE COLOR SUPPLIED BY DETAIL, HOWEVER, THE
EXCURSION'S TRUE CHARACTER IS HARDLY HALF REVEALED.  THE FULL EFFECT
CANNOT NOW BE GIVEN.  IT APPEARS IN THE DISTRICT COURT'S CAREFUL AND
RESTRAINED OPINION, 46 F.SUPP.  541, BUTTRESSED IN EVERY CONCLUSION,
NEARLY EVERY PAGE, FROM WRITINGS ACCUMULATED, WHILE THE COMBINATION
GREW, IN THE FILES OF THE PRINCIPAL PARTICIPANTS,  FN3  AND IN OTHER
PUBLISHED DOCUMENTS.  FN4 

THIS EMPHASIS UPON THE COMPLETE PICTURE, IN COLOR AND DETAIL, IS
PERTINENT TO LIABILITY.  IT BEARS EVEN MORE DIRECTLY ON THE QUANTITY
AND CHARACTER OF RELIEF REQUIRED TO UPROOT THE COMBINATION'S
DESTRUCTIVE AND UNLAWFUL EFFECTS.  WITHOUT THIS VIEW, MANY OF THE
DECREE'S PROVISIONS, CAST IN DRY LEGAL TERMS, DENUDED OF THE LIFE AND
HISTORY WHICH BROUGHT THEM FORTH, SEEM DRASTIC.  WITH IT, THEY TAKE A
WHOLLY DIFFERENT ASPECT. 

ONE MAY START, WITH THE COURT, UPON THE BASIC IDEA THAT, IN SUCH A
PROCEEDING, THE DECREE'S FUNCTION IS NOT TO IMPOSE SHEER "PUNISHMENT"
FOR PAST MISCONDUCT, BUT IS RATHER TO DEVISE EFFECTIVE MEASURES TO
PREVENT ITS REPETITION AND DISSIPATE ITS CONSEQUENCES.  THIS DOES NOT
MEAN, HOWEVER, THAT THERE IS ANY CLEAR, SHARP LINE WHICH CAN BE DRAWN
ON THE CRUX OF PAST AND FUTURE BETWEEN PUNISHMENT AND PREVENTION OR
DISSIPATION; OR THAT THIS DIFFERENCE SHOULD BE TRANSLATED INTO THE
IMPLICIT ASSUMPTIONS WHICH SEEM TO UNDERLIE THE COURT'S EXTENSIVE
REVISIONS OF THE DECREE AND THEREBY STRIP IT IN GREAT PART OF
EFFECTIVENESS.  THE ASSUMPTIONS RELATE TO THE RESPECTIVE FUNCTIONS OF
TRIAL AND APPELLATE COURTS IN FRAMING THE DECREE AS WELL AS TO THE
CRITERIA BY WHICH ARE TO BE GAUGED THE QUANTITY AND QUALITY OF RELIEF
NEEDED TO BE EFFECTIVE. 

IT SEEMS TO BE IMPLIED FROM THE NUMBER, CHARACTER AND DETAIL OF THE
REVISIONS THAT IT IS THE BUSINESS OF THIS COURT TO REWRITE THE DECREE,
SUBSTITUTING ITS OWN JUDGMENT FOR THAT OF THE DISTRICT COURT WHEN THERE
IS DIFFERENCE CONCERNING THE WISDOM OR NEED OF A PARTICULAR REVISION. 
A SUPPORTING NOTION, APPARENTLY, IS THAT THE "EQUITY" PROCEDURE TO
ENFORCE THE ACT IS HEDGED WITH THE SAME LIMITATIONS NON-STATUTORY
EQUITY HAS PLACED ABOUT ITS ACTION AS A SYSTEM OF PRIVATE REMEDIAL
LITIGATION.  BOTH THESE IDEAS HAVE BACKING IN A THIRD MISCONCEPTION,
THAT MEN WHO HAVE MISUSED THEIR PROPERTY, AND ACQUIRED MUCH OF IT, BY
VIOLATING THE SHERMAN ACT, ARE FREE FOR THE FUTURE TO CONTINUE USING IT
AS ARE OTHER OWNERS WHO HAVE COMMITTED NO SUCH OFFENSE; AND THAT
CONSEQUENTLY THE APPROPRIATE RELIEF AFFECTING SUCH USE IS THE LEAST
RESTRICTION WHICH POSSIBLY WILL PREVENT REPETITION OF PAST VIOLATIONS. 
CF., HOWEVER, UNITED STATES V. UNION PACIFIC R. CO., 226 U.S. 470,
477.  EXCEPT UPON THESE ASSUMPTIONS, THE COURT'S MAJOR REVISIONS OF THE
DECREE CANNOT BE JUSTIFIED. 

SHORTLY, IN MY VIEW IT IS NOT THIS COURT'S BUSINESS TO FASHION OR
REWRITE THE DECREE.  WHERE THE TRIAL COURT, WITH OBVIOUS CARE AND
JUDGMENT, HAS DEVISED MEASURES IT DEEMS ESSENTIAL TO PROTECT THE PUBLIC
INTEREST AND WE AGREE THEY MAY BE SUFFICIENT, OUR MODIFICATIONS BY
WATERING THEM DOWN SHOULD STOP WITH DIRECTIONS TO ELIMINATE PROVISIONS
CONTRARY TO LAW OR THOSE WE CAN SAY AMOUNT TO AN ABUSE OF DISCRETION. 
UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 185.  CHANGES
IMPOSING GREATER RESTRICTIONS SHOULD BE MADE ONLY WHEN THE DECREE IS
INSUFFICIENT TO ACCOMPLISH THE PROTECTION REQUIRED.  IBID.  THE REASONS
WHICH THUS ORDINARILY RESTRICT THE SCOPE OF APPELLATE REVIEW HAVE
MAGNIFIED FORCE IN ANTI-TRUST PROCEEDINGS.  THEIR COMPLEX CHARACTER
USUALLY REQUIRES, AS IN THIS CASE, MONTHS OR YEARS FOR THE TRIAL
COURT'S CONSIDERATION.  WITH ITS MAXIMUM ATTENTION, THIS COURT CANNOT
POSSIBLY ATTAIN THE SAME DETAILED FAMILIARITY WITH THE CAUSE.  NOR CAN
IT FRAME AT LONG DISTANCE, WITH THE SAME ASSURANCE, A DECREE ADEQUATE
FOR THE NECESSITY.    THE SO-CALLED EQUITABLE CHARACTER OF THE
PROCEEDING DOES NOT NULLIFY THIS INHERENT LIMITATION UPON APPELLATE
JUDICIAL ACTION.  NOR DOES IT JUSTIFY AN ATTITUDE WHICH WOULD
CIRCUMSCRIBE THE SUIT OR THE RELIEF WITH THE LIMITATIONS COURTS OF
EQUITY TRADITIONALLY HAVE PUT AROUND THEIR ACTION IN PRIVATE
LITIGATION.  THE ANTI-TRUST INJUNCTION SUIT IS IN FORM "A PROCEEDING IN
EQUITY."  IN SUBSTANCE, IT IS A PUBLIC PROSECUTION, WITH CIVIL RATHER
THAN CRIMINAL SANCTIONS, FOR VINDICATION OF PUBLIC RIGHT AND FOR
REDRESS AND PREVENTION OF PUBLIC INJURY.  TO REGARD THE FASHIONING OF
APPROPRIATE RELIEF IN SUCH A SUIT AS IDENTICAL WITH THE SAME FUNCTION
IN PRIVATE LITIGATION IS TO DISREGARD AT ONCE THE FORMER'S STATUTORY
ORIGIN, ITS PUBLIC CHARACTER, AND THE PUBLIC INTEREST IT PROTECTS.  THE
EQUITABLE GARB OF THE PROCEEDING THEREFORE DOES NOT DETERMINE OR
CONCEAL ITS TRUE CHARACTER.  NOR DOES IT LIMIT THE REQUIRED RELIEF
MERELY TO WHAT WILL PREVENT REPETITION OF THE ILLEGAL CONDUCT BY WHICH
THE COMBINATION HAS BEEN FORMED, ITS PROPERTY ACQUIRED, AND ITS
DOMINATING POSITION SECURED. 

THE CONTRARY VIEW IGNORES THE MOMENTUM INHERENT IN SUCH A
COMBINATION.  THE POWER, AND MUCH OF THE PROPERTY, NOW AGGREGATED IN
THE COMBINATION'S HANDS AND THOSE OF ITS PRINCIPAL PARTICIPANTS, WAS
GATHERED BY UNLAWFUL METHODS, AT THE EXPENSE OF THE PUBLIC AND
COMPETITORS N5.  PRESUMABLY NEITHER POWER NOR PROPERTY COULD HAVE BEEN
ACCUMULATED BY LAWFUL MEANS.  NOR CAN THEY NOW TOGETHER BE TRANSFERRED
LEGALLY TO ANOTHER.  THE LOOSENED RESTRICTIONS OF THIS COURT'S REVISION
MAY BE SUFFICIENT TO PREVENT, FOR THE FUTURE, FURTHER ACTS OF THE
CHARACTER AND HAVING THE EFFECTS OF THE PAST VIOLATIONS.  BUT THE POOL
HAS ACQUIRED MORE THAN 800 PATENTS, WHICH CONTROL THE INDUSTRY, OF
WHICH HARTFORD ALONE HOLDS MORE THAN 600.  ITS MEMBERS, INCLUDING
HARTFORD, ARE NOT COMPELLED TO DISGORGE ANY OF THESE, OR PROHIBITED TO
ACQUIRE OTHERS.  MANY OF THE PATENTS, AND CERTAINLY THE CHERISHED
"PATENT POSITION,"  FN6  WERE SECURED ONLY BY VIRTUE OF THE ILLEGAL
CONDUCT.  WHATEVER BENEFITS MAY FLOW FROM THESE PATENTS AND THE PATENT
POSITION THUS CREATED ARE INEVITABLY THE CONSEQUENCES OF THAT CONDUCT. 
FN7  MERELY TO THROW OFF THE ILLEGAL PRACTICES, SUCH AS RESTRICTED AND
DISCRIMINATORY LICENSING, CANNOT REACH THOSE CONSEQUENCES.  EVERY
DOLLAR HEREAFTER, AS WELL AS HERETOFORE, SECURED FROM LICENSES ON THE
PATENTS ILLEGALLY AGGREGATED IN THE COMBINATION'S HANDS IS MONEY TO
WHICH THE PARTICIPANTS ARE NOT ENTITLED BY VIRTUE OF THE PATENT LAWS OR
OTHERS.  IT IS THE IMMEDIATE PRODUCT OF THE CONSPIRACY.  TO PERMIT
THESE PATENTS TO REMAIN IN THE GUILTY HANDS, AS SOURCES OF CONTINUING
LUCRATIVE REVENUE, NOT ONLY DOES NOT DEPRIVE THEIR OWNERS OF THE FRUIT
OF THEIR MISCONDUCT.  RATHER IT SECURES TO THEM ITS CONTINUED
BENEFITS.  THE POOL MAY NO LONGER UTILIZE ILLEGAL METHODS.  IT, AND THE
CONSTITUENT MEMBERS, WILL CONTINUE TO ENJOY THE PREFERRED COMPETITIVE
POSITION WHICH THEIR CONDUCT HAS GIVEN THEM AND TO USE BOTH THAT
POSITION AND THE ILL-GOTTEN PATENTS, TOGETHER WITH THE PATENT POSITION,
TO DERIVE TRADE ADVANTAGE OVER RIVALS AND GAIN FROM THE PUBLIC WHICH
THE PATENT LAWS OF THEMSELVES NEVER CONTEMPLATED AND THE ANTI-TRUST
LAWS, IN MY OPINION, FORBID.  FN8 

THESE CONSIDERATIONS WERE BEFORE THE DISTRICT COURT'S MIND WHEN IT
DEVISED THE DECREE.  CONCLUDING ITS OPINION, THAT COURT MADE A
"STATEMENT OF THE PRINCIPLES TO BE FOLLOWED" IN FRAMING THE DECREE
WHICH THROWS LIGHT PARTICULARLY UPON ITS CONSIDERED VIEWS OF THE RELIEF
REQUIRED.  IT STATED, WITH UNDISPUTED EVIDENCE  FN9  TO SUSTAIN ITS
CONCLUSION: 

"THE COURT BELIEVES THAT NO HALF-WAY MEASURES WILL SUFFICE.  THERE
HAS BEEN A DELIBERATE VIOLATION OF THE LAW, AND IT IS THE DUTY OF THE
COURT TO DO WHAT HE CAN TO MAKE CERTAIN THAT THESE VIOLATIONS OF THE
LAW WILL CEASE AND WILL NOT BE RESUMED IN THE FUTURE AND THAT
COMPETITION WILL BE RESTORED IN THE INDUSTRY.  THE RECORD DISCLOSES
THAT SOME OF THE INDIVIDUAL DEFENDANTS ANTICIPATED LEGAL ACTION BY THE
GOVERNMENT, AND WENT AHEAD IN SPITE OF THAT AND VIOLATED THE LAW.  THEY
ALSO TRIED TO ANTICIPATE THE REMEDIES THAT MIGHT BE APPLIED AND DID
WHAT THEY COULD TO FORESTALL THE EFFECT OF SUCH REMEDIES AND RETAIN THE
BENEFITS OF THEIR UNLAWFUL ACTIONS.  THE COURT INTENDS TO MAKE CERTAIN
THAT THIS DOES NOT OCCUR."  FN10  (P. 620.) 

THE GOVERNMENT HAD REQUESTED THE DISSOLUTION OF HARTFORD, KEYSTONE OF
THE COMBINATION.  FN11  IN VIEW OF CONTROLLING AUTHORITIES RELATING TO
VIOLATIONS NOT LESS EXTENSIVE OR MORE CLEARLY PROVED, FN12  IT HARDLY
COULD BE SAID, AND THIS COURT'S OPINION DOES NOT SAY, THAT IF
DISSOLUTION OF HARTFORD HAD BEEN ORDERED, THIS WOULD HAVE CONSTITUTED
AN ABUSE OF DISCRETION.  THE DISTRICT COURT DID NOT DENY THAT REMEDY. 
RATHER IT RESERVED THE QUESTION FOR LATER DETERMINATION, UNDERTAKING
MEANWHILE A MILDER REMEDY.  IN ITS OWN WORDS, REFERRING TO THE
GOVERNMENT'S REQUEST FOR DISSOLUTION, THE OPINION STATED: 

"THE COURT, HOWEVER, IS FIRST GOING TO MAKE AN ATTEMPT TO AVOID THAT,
IF IT IS POSSIBLE TO DO SO AND AT THE SAME TIME RESTORE COMPETITION TO
THE INDUSTRY.  IF THIS CANNOT BE WORKED OUT TO THE SATISFACTION OF THE
COURT, DISSOLUTION WILL BE ORDERED." 

"THE FIRST STEP TO BE TAKEN IS THE IMMEDIATE APPOINTMENT OF A
RECEIVER OR RECEIVERS OF HARTFORD.  THE COURT IS GOING TO DENY ANY STAY
FROM THE APPOINTMENT OF SUCH RECEIVERS.  IT IS BELIEVED TO BE
ABSOLUTELY NECESSARY THAT THE RECEIVERS TAKE OVER THE MANAGEMENT OF
HARTFORD FORTHWITH."  (P. 620.) 

AMONG THE REASONS ASSIGNED FOR THIS ACTION WERE, FIRST, IMPORTANT
CHANGES MADE BY HARTFORD WITHOUT THE COURT'S KNOWLEDGE DURING PENDENCY
OF THE SUIT, INVOLVING HEAVY FINANCIAL OBLIGATIONS OF HARTFORD "FOR THE
ADVANCEMENT OF THE INTERESTS OF THE COMPANIES INVOLVED," INCLUDING THE
TRANSFER OF THREE IMPORTANT PATENTS TO CORNING WHICH THE COURT FELT WAS
"FOR THE OBVIOUS PURPOSE OF CONTINUING CORNING'S MONOPOLIES REGARDLESS
OF THE OUTCOME OF THIS SUIT"; FN13  SECOND, TO PREVENT ANY FURTHER
ABUSE OF THE PATENT PRIVILEGES OF HARTFORD AND ANY FURTHER VIOLATION OF
THE LAW, SINCE "UNDER THE CIRCUMSTANCES DISCLOSED BY THE EVIDENCE, THE
COURT FEELS THAT THIS CAN ONLY BE DONE THROUGH COURT OFFICERS"; AND,
THIRD, TO CONSERVE THE ASSETS OF HARTFORD AND PRESERVE THE STATUS QUO. 
PENDING APPEAL, THEREFORE, AND FINAL DETERMINATION OF THE CAUSE, THE
RECEIVERS WERE DIRECTED TO TAKE OVER HARTFORD'S MANAGEMENT, CONTINUE
OPERATION UNDER ITS EXISTING CONTRACTS AND AGREEMENTS FOR LICENSING AND
FOR LEASING ITS MACHINES, AND TO RECEIVE, SET ASIDE AND EARMARK THE
FUNDS RECEIVED FROM LICENSEES, HOLDING THEM FOR RETURN TO THE LICENSEES
IF THE COURT'S DECREE SHOULD BE AFFIRMED.  FINALLY, THE RECEIVERS WERE
TO REMAIN IN CONTROL "UNTIL THE COURT IS SATISFIED THAT THE ABUSES AND
VIOLATIONS OF THE LAW HAVE CEASED, UNTIL THE ORDERS OF THE COURT HAVE
BEEN CARRIED OUT, AND UNTIL THE COURT IS SATISFIED THAT THERE NO LONGER
REMAINS A REASONABLE PROBABILITY THAT THESE PRACTICES WILL BE RESUMED. 
IF, AFTER THE EXPIRATION OF A REASONABLE TIME, IT APPEARS TO THE COURT
THAT THE STEPS HE IS NOW TAKING ARE INSUFFICIENT TO RESTORE A FREE AND
COMPETITIVE STATUS TO THE INDUSTRY, THE RECEIVERS SHALL BE ORDERED TO
SUBMIT A PLAN OR PLANS FOR THE DISSOLUTION OF HARTFORD."  (P. 621.) 

FROM THIS PORTION OF THE OPINION IT IS PERFECTLY CLEAR THAT THE
DISTRICT COURT HAS MADE NO FINAL DECISION CONCERNING THE DISSOLUTION OF
HARTFORD, AS IT WAS AND STILL IS ENTITLED TO DO; AND THAT IT REGARDED
THE RECEIVERSHIP AS A NECESSARY ALTERNATIVE TO GRANTING THAT RELIEF AT
ONCE.  NO OTHER CONCLUSION CAN BE DRAWN THAN THAT THE COURT, IF
COMPELLED TO CHOOSE BETWEEN DISSOLUTION AND PERMITTING HARTFORD THEN TO
CONTINUE UNDER ITS OWN MANAGEMENT, UNHESITATINGLY WOULD HAVE DECREED
ITS DISSOLUTION.  THE COURT IN SO MANY WORDS STATED, WITH REASONS TO
SUPPORT ITS VIEW, THAT HARTFORD'S MANAGEMENT COULD NOT BE TRUSTED TO
CARRY OUT THE TERMS OF ITS DECREE, TO REFRAIN FROM FURTHER PATENT
ABUSES AND VIOLATIONS OF THE LAW, BUT ON THE CONTRARY ALREADY HAD TAKEN
STEPS TO CIRCUMVENT, IN PART, WHATEVER REMEDY MIGHT BE IMPOSED.  FN14 

RECEIVERSHIPS GENERALLY ARE TO BE AVOIDED, IF POSSIBLE.  BUT THERE
ARE TIMES WHEN THEY REMAIN ESSENTIAL.  IF IN ANY CIRCUMSTANCES THEY ARE
SO, IT WOULD SEEM TO BE IN THESE.  YET THIS COURT'S JUDGMENT DIRECTING
TERMINATION DECLARES, IN THE FACE OF THE DISTRICT COURT'S FINDINGS AND
THE EVIDENCE WHICH CLEARLY SUSTAINS THEM, THAT THE RECEIVERSHIP, THOUGH
USEFUL TO PRESERVE THE STATUS QUO PENDING DECISION HERE, WAS "NOT
NECESSARY TO THE PRESCRIPTION OF APPROPRIATE RELIEF" AND SHOULD BE
WOUND UP, AND THAT THE BUSINESS SHOULD BE RETURNED TO HARTFORD.  THIS
IS NOT MERELY A DECISION THAT THE RECEIVERSHIP WAS NOT JUSTIFIED "IN
THE LIGHT OF WHAT IS HEREAFTER SAID AS TO THE SUBSTANTIVE PROVISIONS OF
THE DECREE."  IT IS A SUBSTITUTION OF THIS COURT'S JUDGMENT FOR THAT OF
THE DISTRICT COURT ON THE QUESTION OF DISSOLUTION OF HARTFORD, WHICH IT
RESERVED, FORECLOSING IT FROM DECISION.  IT IS LIKEWISE A SUBSTITUTION
OF THIS COURT'S JUDGMENT FOR THAT OF THE DISTRICT COURT ON THE QUESTION
WHETHER "THE ABUSES AND VIOLATIONS OF THE LAW HAVE CEASED," ALSO
RESERVED FOR FUTURE DECISION, AND WHETHER THE MANAGEMENT OF HARTFORD,
IN THE FACE OF THE EVIDENCE AND THE FINDINGS, CAN BE TRUSTED NOW TO
CARRY OUT THE TERMS OF THE DECREE OR WERE WORTHY OF THAT TRUST WHEN THE
DECREE WAS ENTERED.  ALL THIS, IN ADVANCE OF DETERMINATION OF THE
FACTS, WHICH THIS COURT CANNOT ASCERTAIN, ON WHICH THE DECISION OF
THESE QUESTIONS MUST TURN. 

SUCH AN INVASION OF THE TRIAL COURT'S FUNCTION, IT SEEMS TO ME,
PERVERTS BOTH THAT FUNCTION AND OUR OWN.  IF THAT COURT'S FINDINGS,
JUSTIFYING THE RECEIVERSHIP AND THE RESERVATION OF DECISION ON
DISSOLUTION, WERE CONTRARY TO THE LAW OR THE EVIDENCE, THAT SHOULD BE
DEMONSTRATED AND DECLARED.  IF THEY CONSTITUTED AN ABUSE OF JUDICIAL
DISCRETION, THE NATURE AND CHARACTER OF THE ABUSE SHOULD BE POINTED
OUT.  IF THEY WERE NEITHER, THIS COURT GOES BEYOND ITS PROVINCE BY
SUBSTITUTING ITS OWN LONG-DISTANCE JUDGMENT FOR THE IMMEDIATELY
INFORMED VIEW OF THE DISTRICT COURT AND IN PRECLUDING IT FROM JUDGMENT,
UPON ISSUES RIGHTLY TO BE DETERMINED BY IT, IN THE FIRST INSTANCE,
WHATEVER THE STANDARD WHICH GOVERNS REVIEW, AND IN THE CIRCUMSTANCES
RIGHTLY RESERVED BY IT FOR FUTURE DECISION.  THE ACTION OF THE DISTRICT
COURT IN APPOINTING RECEIVERS SHOULD BE AFFIRMED AND, UPON REMAND OF
THE CAUSE, ITS POWER SHOULD BE UNFETTERED TO RETAIN THEM PENDING ITS
FINDING OF THE CONDITIONS SPECIFIED IN ITS OPINION AND DECREE FOR
RESTORING THE BUSINESS OF ITS OWNERS OR, IN THE ALTERNATIVE, TO DECREE
DISSOLUTION OF HARTFORD, WITHIN A REASONABLE TIME. 

THIS COURT'S MORE IMPORTANT REVISIONS OF THE "PERMANENT STEPS" TAKEN
BY THE DISTRICT COURT MAY BE NOTICED SHORTLY.  THE LATTER'S OPINION
DECLARED (P. 621):  "THE MOST IMPORTANT QUESTION IS WITH RESPECT TO THE
LICENSING AND LEASE SYSTEM NOW USED BY HARTFORD.  THE COURT BELIEVES
THAT THIS IS THE GREATEST ABUSE.  IT IS THROUGH THE LICENSING AND LEASE
SYSTEM THAT HARTFORD RETAINS CONTROL OVER AND DOMINATES THE INDUSTRY." 
FN15  THE COURT STATED ITS VIEW THAT "THERE WILL BE FURTHER ABUSES IN
THE FUTURE AS LONG AS THERE IS A SEMBLANCE OF THAT SYSTEM REMAINING. 
IT IS THE OPINION OF THE COURT THAT THIS ENTIRE SYSTEM MUST BE
ABOLISHED."  ACCORDINGLY IT REQUIRED FOR FUTURE DISTRIBUTION "OUTRIGHT
SALE AT REASONABLE PRICES" IN PLACE OF THE LEASING OF MACHINES, WITH
THAT METHOD'S OBVIOUS DANGER OF REPOSSESSION IN CASE THE LESSEE SHOULD
FAIL TO OBSERVE PRACTICES ESTABLISHED BY THE LESSORS, TACITLY OR
OTHERWISE.  THE COURT ALSO REQUIRED THE LICENSING, ROYALTY FREE, OF
EXISTING PATENTS UPON GLASSMAKING MACHINERY. 

IN MY OPINION BOTH MEASURES WERE FULLY JUSTIFIED BY THE FINDINGS AND
THE EVIDENCE.  THE LEASING OF PATENTED MACHINERY OR INSTRUMENTS LENDS
ITSELF PARTICULARLY TO THE CREATION AND MAINTENANCE OF MONOPOLY AND TO
THE EXTENSION OF MONOPOLISTIC EFFECTS FAR BEYOND THE LIFE AND SCOPE OF
THE CONTROLLING PATENT OR PATENTS.  FN16  THE HOLDER OF A PATENT WHO
OBSERVES THE LAW IS ENTITLED TO EXERCISE HIS RIGHTS OF OWNERSHIP
THROUGH LEASE AS WELL AS SALE.  WHEN, HOWEVER, HE USES HIS PATENT
RIGHT, BY THE DEVICE OF LEASING, TO ACQUIRE A MONOPOLISTIC POSITION
STRONGER THAN THE PATENT ALLOWS, AND ON BEING CALLED TO HALT IS NOT
COMPELLED TO DISPOSE OF THE PATENT, HE SUBJECTS HIMSELF TO WHATEVER
MEASURES ARE REQUIRED TO PREVENT CONTINUANCE OF THE PRACTICE IN THE
FUTURE AND TO UPROOT THE ILLEGAL POSITION AND ADVANTAGE HE THUS
OBTAINS.  IN MY OPINION THE DISTRICT COURT'S FINDING THAT FURTHER
ABUSES WOULD CONTINUE, ESPECIALLY IN VIEW OF THE DANGERS INHERENT IN
THE RIGHT OF REPOSSESSION, JUSTIFIED ITS PROHIBITION OF THE FURTHER USE
OF THE LEASING SYSTEM. 

THE REQUIREMENT OF LICENSING OF EXISTING PATENTS, ROYALTY FREE, WOULD
PRESENT GREATER DIFFICULTY IF THE VIOLATION HAD NOT BEEN SO GROSS AND
SO LONG CONTINUED.  BUT BECAUSE IT WAS BOTH, AND BECAUSE THE EVIDENCE
SHOWS A LONG COURSE OF USING PATENTS AND PATENT POSITION ILLEGALLY TO
ACQUIRE OTHER PATENTS AND CONSOLIDATE STILL STRONGER POSITIONS, IT IS
IMPOSSIBLE NOW TO DETERMINE WHAT PATENTS MEMBERS OF THE COMBINATION MAY
HAVE ACQUIRED ILLEGALLY.  THE CERTAINTY IS, HOWEVER, THAT MANY WERE SO
ACQUIRED.  FN17  SINCE THE POOL AND ITS MEMBERS ARE NOT REQUIRED TO
DISPOSE OF THE PATENTS, ANY REVENUES NOW RECEIVED BY THEM FROM THE
EXISTING PATENTS ARE THE RESULT, AND INEVITABLY WILL CONTINUE TO BE THE
RESULT, OF THE OWNERS' VIOLATION OF THE LAW.  TO PERMIT THE CONTINUED
COLLECTION OF ROYALTIES WOULD BE TO PERPETUATE, FOR THE LIVES OF THE
PATENTS, THE ILLEGAL CONSEQUENCES OF THE VIOLATIONS.  THAT THE COURT IS
BOUND, IN EQUITY, AND BY THE STATUTE, NOT TO DO. 

IT IS SAID, HOWEVER, THAT THE GOVERNMENT HAS NOT ASKED, IN THIS SUIT,
FOR CANCELLATION OF THE EXISTING PATENTS AND THAT THIS PROVISION OF THE
DECREE AMOUNTS TO THAT.  THE DEFENDANTS, IT IS TRUE, CANNOT DERIVE
ROYALTIES FROM THEM UNDER THE TERMS OF THE DECREE, IF THEY CONTINUE TO
DISTRIBUTE MACHINERY AND GLASSWARE IN INTERSTATE COMMERCE.  IF THIS IS
DRASTIC, IT IS BECAUSE THE VIOLATION WAS DRASTIC AND THERE IS NO OTHER
WAY NOW, SHORT OF DISSOLUTION OR CANCELLATION, TO CUT OFF ITS
CONTINUING EFFECTS OF DISADVANTAGE TO THE PUBLIC AND THE INDUSTRY OR OF
BENEFIT TO THE VIOLATORS.  THE COURT, SEEKING TO AVOID DISSOLUTION, HAD
THE DUTY TO APPLY A REMEDY EQUALLY ADEQUATE.  UNITED STATES V. TERMINAL
RAILROAD ASSOCIATION, 224 U.S. 383, 409.  IT COULD NOT DO THIS, IF THE
POOL WERE LEFT A CONTINUING SOURCE OF REVENUE TO THE VIOLATORS AND OF
BURDEN TO THE PUBLIC.  ACCORDINGLY IT REQUIRED THE AGREEMENT FOR
LICENSE, ROYALTY FREE.  SINCE CANCELLATION WAS NOT REQUIRED IN TERMS,
IT DOES NOT FOLLOW MERELY FROM THE ROYALTY FREE PROVISION THAT THE
EFFECT WILL BE THE SAME OR THAT THE DEFENDANTS WILL NOT HAVE THE
BENEFIT OF OTHER INCIDENTS OF OWNERSHIP WHICH MAY BE EXERCISED WITHOUT
PERPETUATING THE UNLAWFUL CONSEQUENCES OF THE PAST MISUSE, SUCH AS
REALIZING THE VALUE OF THE PATENTS BY SALE, MADE UPON PROPER
APPLICATION WITH THE COURT'S APPROVAL.  FN18 

THIS COURT'S REVISIONS OF THE DECREE IN THESE RESPECTS LOAD UPON THE
INDUSTRY AND THE CONSUMING PUBLIC CONTINUING CHARGES IN FAVOR OF THOSE
WHO HAVE VIOLATED BOTH THE ANTI-TRUST STATUTES AND THE PATENT LAWS, A
BURDEN WHICH WILL NOT END UNTIL THE LAST OF THE ILLEGALLY AGGREGATED
PATENTS HAS EXPIRED, IF THEN.  THEY BOTH FORECLOSE DISSOLUTION AND
FORBID THE ONLY OTHER REMEDIES EQUALLY ADEQUATE.  SO TO PERPETUATE THE
UNLAWFUL CONSEQUENCES OF VIOLATION WILL NOT DISCOURAGE, IT CAN ONLY
ENCOURAGE SETTING THE LAW AT NAUGHT. 

FROM WHAT HAS BEEN SAID IT FOLLOWS, OF COURSE, THAT THE COURT
PROPERLY IMPOUNDED HARTFORD'S REVENUES FROM LEASING AND LICENSING
ARRANGEMENTS AND THAT THESE SHOULD NOW BE RETURNED TO THE SOURCES
WHENCE RECEIVED.  AGAIN, CONTRARY TO THE COURT'S IMPLICIT ASSUMPTION,
THE MERE FACT THAT DURING THIS PERIOD THERE WERE NO NEW VIOLATIONS DOES
NOT MEAN THERE WERE NOT CONTINUING EFFECTS OF FORMER ONES. 

THE MODIFICATIONS MADE IN PARAGRAPH 29, RELATING TO RESTRICTIVE
LICENSING, SHOULD NOT GO BEYOND RESTRICTING THE PARAGRAPH TO GLASS
PRODUCTS AND GLASS MACHINERY, AS THE GOVERNMENT NOW CONCEDES SHOULD BE
DONE.  THE PROVISIONS OF THE DECREE CONCERNING THE "FENCING" AND
"BLOCKING" OF PATENTS SHOULD STAND, IN VIEW OF THE PROVEN ABUSES IN
APPLYING FOR PATENTS MERELY TO PREVENT OTHERS FROM OBTAINING THEM. 
OTHER REVISIONS ARE TOO NUMEROUS TO MENTION SPECIFICALLY, EXCEPT TWO. 
I CONCUR IN THE ELIMINATION OF THE INDIVIDUAL DEFENDANTS, COLLINS,
FULTON, FISHER, AND DILWORTH, FROM THE RESTRICTIONS OF THE DECREE, FOR
THE REASONS STATED IN THE COURT'S OPINION.  I CONCUR ALSO IN THE
MODIFICATION WHICH REQUIRES THE DISSOLUTION OF THE GLASS CONTAINER
ASSOCIATION, SINCE THE TERMS OF THE DECREE SUBSTANTIALLY ACCOMPLISH
THIS AND THE DISTRICT COURT EXPRESSLY FOUND THE ASSOCIATION HAD BEEN "A
BREEDING PLACE FOR MANY OF THE ILLEGAL PRACTICES ESTABLISHED HEREIN." 

THE CASE PRESENTS AGAIN THE FUNDAMENTAL PROBLEM OF ACCOMMODATING THE
PROVISIONS OF THE PATENT LAWS TO THOSE OF THE ANTI-TRUST STATUTES. 
BASICALLY THESE ARE OPPOSED IN POLICY, THE ONE GRANTING RIGHTS OF
MONOPOLY, THE OTHER FORBIDDING MONOPOLISTIC ACTIVITIES.  THE PATENT
LEGISLATION PRESENTS A SPECIAL CASE, THE ANTI-TRUST LEGISLATION THE
NATION'S GENERAL POLICY.  WHETHER THE ONE OR THE OTHER IS WISE IS NOT
FOR US TO DETERMINE.  BUT THEIR ACCOMMODATION IS ONE WE MUST MAKE,
WITHIN THE LIMITS ALLOWED TO THE JUDICIAL FUNCTION, WHEN THE ISSUE IS
PRESENTED. 

THE GENERAL POLICY HAS BEEN TO RESTRICT THE RIGHT OF THE PATENT
HOLDER RIGIDLY WITHIN THE TERMS OF HIS GRANT AND, WHEN HE OVERREACHES
ITS BOUNDARY, TO DENY HIM THE USUAL PROTECTIONS OF THE HOLDER OF
PROPERTY.  THAT THIS ORDINARILY HAS BEEN DONE IN INFRINGEMENT SUITS
FN19  OR SUITS FOR CANCELLATION DOES NOT QUALIFY THE FACT OR THE
POLICY.  ON THE OTHER HAND, THE ANTI-TRUST STATUTES HAVE RECEIVED A
BROAD CONSTRUCTION AND CORRESPONDING ENFORCEMENT, WHERE VIOLATION HAS
BEEN CLEARLY SHOWN.  WHEN THE PATENT-HOLDER SO FAR OVERREACHES HIS
PRIVILEGE AS TO INTRUDE UPON THE RIGHTS OF OTHERS AND THE PUBLIC
PROTECTED BY THE ANTI-TRUST LEGISLATION, AND DOES THIS IN SUCH A WAY
THAT HE CANNOT FURTHER EXERCISE THE PRIVILEGE WITHOUT ALSO TRESPASSING
UPON THE RIGHTS THUS PROTECTED, EITHER HIS RIGHT OR THE OTHER PERSON'S,
AND THE PUBLIC RIGHT, MUST GIVE WAY.  IT IS WHOLLY INCONGRUOUS IN SUCH
CIRCUMSTANCES TO SAY THAT THE PRIVILEGE OF THE TRESPASSER SHALL BE
PRESERVED AND THE RIGHTS OF ALL OTHERS WHICH HE HAS TRANSGRESSED SHALL
CONTINUE TO GIVE WAY TO THE CONSEQUENCES OF HIS WRONGDOING. 

THIS IS SUBSTANTIALLY WHAT THE DEFENDANTS HAVE SOUGHT IN THIS
PROCEEDING AND THIS COURT'S REVISION OF THE DECREE HAS GRANTED IN LARGE
MEASURE.  SO INVERTED AN IDEA OF EQUITY, OR OF THE LAW, CANNOT STAND. 
IN A MACHINE AGE, DOMINATED SO WIDELY BY PATENTS, THE EFFECT CAN BE NO
OTHER THAN LARGELY TO NULLIFY THE ANTI-TRUST LAWS.  THERE MAY BE
INSTANCES IN WHICH A PATENT HOLDER, GUILTY OF VIOLATING THOSE STATUTES,
CAN SO SEPARATE HIS VIOLATION AND ITS CONTINUING EFFECTS FROM FURTHER
FULL EXERCISE OF HIS PATENT RIGHT THAT HE MAY BECOME ENTITLED TO A FORM
OF RELIEF WHICH WILL PERMIT THIS.  UNLESS WE ARE TO DISREGARD ENTIRELY
THE FINDINGS AND CONCLUSIONS OF THE DISTRICT COURT, SUPPORTED BY
OVERWHELMING EVIDENCE, THIS IS NOT SUCH A CASE. 

THE COURT'S MAJOR MODIFICATIONS, IN MY OPINION, EMASCULATE THE
DECREE. 

FN1 THE DISTRICT COURT FOUND  "...  THAT THERE HAS NOT ONLY BEEN A
VIOLATION OF THE ANTI-TRUST LAWS, BEGINNING WITH THE FIRST AGREEMENT
BETWEEN HARTFORD AND EMPIRE IN 1916, BUT I AM CONVINCED THAT THIS
VIOLATION OF THE LAWS WAS AS DELIBERATE AS ANY THAT I CAN FIND IN A
REVIEW OF ANTI-TRUST CASES."  46 F.SUPP.  541, 552-553.  HARTFORD AND
LYNCH WERE ALSO FOUND GUILTY OF CONTRACTING IN VIOLATION OF THE CLAYTON
ACT. 

FN2  SIXTEEN PAGES OF THE TRIAL COURT'S OPINION ARE GIVEN TO A
SUMMARY OF MANIFESTATIONS OF CONSCIOUS GUILT.  THE INSTANCE CITED IN
THE OPINION OF MR. JUSTICE BLACK IS ILLUSTRATIVE.  SEE ALSO TEXT INFRA
AT NOTE 10.  THE METHODS EMPLOYED RANGED FROM SUGGESTIONS FOR
"COOPERATION" TO THE DIVISION OF FIELDS WITHIN THE INDUSTRY AND THE
SQUEEZE-OUT OF RIVALS, RUTHLESSLY AND CONSTANTLY THROUGH THE SYSTEM OF
LICENSING AND LEASING WHICH THE COURT FOUND WAS "THE GREATEST ABUSE." 
CF. TEXT INFRA AT NOTE 15.  HAZEL-ATLAS WAS A HOLD-OUT UNTIL THE "THREE
WAY PARTNERSHIP" AGREEMENT OF 1932.  THE LONG STORY SHOWING HOW THAT
COMPANY FINALLY WAS BROUGHT "WITHIN THE FAMILY" IS PARTICULARLY
INTERESTING IN DISCLOSING THE METHODS USED IN BRINGING A RIVAL TO
BOOK. 

FN3  CHARACTERIZING THE CASE AS "PRIMARILY DOCUMENTARY," THOUGH ALSO
NOTING THE "RETICENCE OF SOME OF THE KEY WITNESSES TO DISCLOSE WHAT
PLAINLY WAS WITHIN THEIR KNOWLEDGE AS PRINCIPAL ACTORS IN THE MAIN
CONFERENCES THAT OCCURRED OVER A PERIOD OF TIME," THE COURT STATED: 

"...  IN THIS CASE, THE MEN WHO PLANNED AND DIRECTED THE PROCEEDINGS
UNDER SCRUTINY, FROM 1916 DOWN TO THE TIME OF THE FILING OF THE
COMPLAINT HEREIN, LEFT BEHIND THEM NUMEROUS EXCHANGES OF LETTERS AND
MANY MEMORANDA EXECUTED CONTEMPORANEOUSLY WITH THE HAPPENING OF THE
MAIN EVENTS AND DESIGNED FOR THE INFORMATION OF THEIR CONTEMPORARIES,
THEIR BOARDS OF DIRECTORS, OR FOR THEIR SUCCESSORS IN OFFICE.  IT IS
HARD TO IMAGINE A CASE IN WHICH A COURT WOULD HAVE MORE FIRST-HAND
INFORMATION OF WHAT THE PARTIES DID AND INTENDED THAN IN THE CASE AT
BAR."  (P. 553.) 

FN4  SEE THE REPORTS OF THE TEMPORARY NATIONAL ECONOMIC COMMITTEE,
THE DISCLOSURES OF WHICH WERE LARGELY RESPONSIBLE FOR THE INSTITUTION
OF THIS PROCEEDING.  INVESTIGATION OF CONCENTRATION OF ECONOMIC POWER,
SEN. DOC. NO. 95, 76TH CONG., 1ST SESS. (1939); IBID., SEN. DOC. NO.
35, 77TH CONG., 1ST SESS. (1941); IBID., MONOGRAPH NO. 31, HAMILTON,
PATENTS AND FREE ENTERPRISE, 76TH CONG., 3D SESS., SENATE COMMITTEE
PRINT (1941). 

FN5  REFERRING TO THE DEFENDANTS' ARGUMENT "THAT THE PRICE OF
GLASSWARE TO THE CONSUMER HAS NOT INCREASED," THE DISTRICT COURT'S
OPINION STATED (P. 620):  "BUT AGAIN THIS IS NOT A GOOD DEFENSE IF
THERE HAVE BEEN VIOLATIONS OF THE LAW.  MOREOVER, THE HISTORY OF THE
CASE SHOWS THE GREAT EXTENT TO WHICH AUTOMATIC MACHINERY HAS COME INTO
USE WITHIN THE PAST FORTY YEARS.  IT IS NATURAL TO ASSUME THAT THE COST
OF PRODUCTION WOULD DECREASE WITH THE GREAT INFLUX OF AUTOMATIC
MACHINERY.  EVIDENTLY THE DEFENDANTS MANAGED TO RETAIN THIS SAVING IN
THE COST OF PRODUCTION BY MEANS OF THE CONSPIRACY HEREIN, WHICH IS
MANIFESTED BY THE LARGE PROFITS IN THE INDUSTRY.  THE BENEFITS
CERTAINLY WERE NOT PASSED ON TO THE PUBLIC."  PREVIOUSLY THE COURT HAD
FOUND THAT, "DOMINANCE OVER THE ENTIRE INDUSTRY IS TODAY SO COMPLETE
THAT AT ANY TIME WITHIN THE CHOICE OF HARTFORD AND OWENS PRICES TO THE
CONSUMER OF GLASSWARE MAY ARBITRARILY BE RAISED BEYOND ALL REASON." 
(P. 619.) 

FN6  ILLUSTRATIVE OF THE COMBINATION'S PURPOSE IN THIS RESPECT IS
LEVIS' REPORT TO OWENS' BOARD OF DIRECTORS IN NOVEMBER, 1929:  "OUR
NEGOTIATIONS WITH HARTFORD-EMPIRE COMPANY AND OTHERS, SO FAR AS OUR
PATENT SITUATION AND ROYALTY INCOME IS CONCERNED, SHOULD BE TO ATTEMPT
TO SECURE A POSITION WHEREBY WE PAY NO ROYALTY ON ANY ITEM WE PRODUCE
AND WE ATTEMPT TO HAVE ALL OTHERS PAY ROYALTY ON EVERY ITEM THEY
PRODUCE, WE PARTICIPATING WITH ANY ONE ELSE IN THE ROYALTIES THEY
RECEIVE." 

FN7 WITH REFERENCE TO THE CONTENTION THAT THE AMENDMENTS MADE BY THE
DEFENDANTS IN THEIR CONTRACT RELATIONS, WITHOUT THE COURT'S KNOWLEDGE,
BETWEEN THE FILING OF THE COMPLAINT IN 1939 AND THE CLOSING OF
TESTIMONY OVER TWO YEARS LATER, THE COURT SAID:  "MEN CANNOT, BY
ILLEGAL MEANS, ERECT AN ILLEGAL STRUCTURE - A STRUCTURE OF DOMINANCE
AND CONTROL OVER AN INDUSTRY VITAL TO THE WELFARE OF THE PUBLIC - AND
THEN, BY DESTROYING THE ILLEGAL MEANS BY WHICH THE STRUCTURE HAS BEEN
ERECTED, TAKE THE POSITION THAT THEY HAVE REFORMED, THAT THEY HAVE
ADOPTED A NEW COURSE OF CONDUCT, AND THAT THEY SHOULD GO ON THEIR WAY
UNMOLESTED BY THE LAW - AS LONG AS THE ILLEGAL STRUCTURE AND ITS
ADVERSE EFFECTS UPON THE PUBLIC REMAIN."  (P. 618.) 

FN8  CF. NOTES 13 AND 17 INFRA. 

FN9  THROUGHOUT THE LITIGATION THE FACTS HAVE BEEN SUBSTANTIALLY
UNDISPUTED IN CONSEQUENCE OF THE DOCUMENTARY AND CONCLUSIVE CHARACTER
OF THE PROOFS.  CF. NOTE 3 SUPRA.  THE DISPUTE HAS BEEN PRIMARILY OVER
THE INFERENCES TO BE DRAWN FROM THE FACTS, THE DEFENDANTS CONTENDING,
IN THE WORDS OF THE DISTRICT COURT (P. 615), THAT "ANY CONTROL THAT MAY
EXIST OVER THE PRODUCTION AND MARKETING OF UNPATENTED GLASSWARE IS BUT
THE RESULT OF A NORMAL EXERCISE OF THE PATENT PRIVILEGE," WITH LIKE
CONTENTION, OF COURSE, CONCERNING THE PRODUCTION AND LICENSING OF
GLASSMAKING MACHINERY.  THE CONTENTION MERELY POSES THE BASIC QUESTION
OF LAW IN THE CASE. 

FN10  CF. NOTES 2 AND 13. 

FN11  UNLESS, IN FACT, THIS WERE CORNING, WHICH SINCE 1922 HAS OWNED,
OR CONTROLLED, 43 PER CENT OF HARTFORD'S STOCK.  ACCORDING TO THE
DISTRICT COURT, CORNING "IN PRACTICAL EFFECT HAD SUFFICIENT CONTROL
OVER HARTFORD TO DICTATE THE POLICIES OF HARTFORD IN ACCORDANCE WITH
CORNING'S WISHES."  (P. 557.) 

FN12  STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; UNITED STATES V.
AMERICAN TOBACCO CO., 221 U.S. 106. 

FN13  THE TRIAL COURT'S CONCLUSIONS CONCERNING THESE CHANGES, CF.
TEXT INFRA AT NOTE 14, MAY BE CONSIDERED IN THE LIGHT OF THE OTHER
EVIDENCE SHOWING CONSCIOUSNESS OF VIOLATION, WITH ANTICIPATION OF
REMEDIAL ACTION, CF. NOTE 2 SUPRA, AND OF PRACTICES BY WHICH DOMINATION
OBTAINED UNDER PATENTS WAS MAINTAINED AFTER THEY HAD EXPIRED, E.G.,
HARTFORD'S REFUSAL TO LICENSE OTHERS THAN CORNING TO MAKE HEAT
RESISTANT WARE AND OVEN WARE ON ITS FEEDERS AFTER CORNING'S PATENTS ON
GLASS COMPOSITION FOR THESE WARES HAD EXPIRED IN 1936.  (P. 556.)  CF.
ALSO OWENS' CONTINUED DOMINATION OF THE SUCTION FIELD, NOTED IN THIS
COURT'S OPINION, BY USE OF IMPROVEMENT PATENTS AFTER ITS BASIC PATENT
HAD EXPIRED. 

FN14  CF. NOTE 13 SUPRA. 

FN15  CF. NOTE 2 SUPRA. 

FN16  CF. THE STATEMENT, IN 1922, OF V.M. DORSEY TO A.D. FALCK, OF
CORNING:  "F. G. SMITH, IN PRIVATE, SUGGESTED TO ME THE MOST
REVOLUTIONARY THEORY, WHICH HE WILL NO DOUBT TALK TO YOU ABOUT, VIZ.,
PUTTING OUT THE FEEDERS VERY MUCH LIKE TELEPHONES ARE INSTALLED, THAT
IS, WITH AN INSTALLATION CHARGE WITH A FLAT ROYALTY PLUS ROYALTIES ON
PRODUCTION ABOVE A GIVEN AMOUNT.  I THINK IT HAS MUCH TO BE COMMENDED. 
IT WOULD CERTAINLY PUT THE PIRATES OUT OF BUSINESS QUICKLY." 

FN17  CF. NOTE 7 SUPRA, AND THE INSTANCES CITED FROM EXHIBIT 76 IN
THE DISTRICT COURT'S OPINION, 46 F.SUPP.  541, 604-606, WHICH CAUSED IT
TO RAISE THE QUESTION WHY CRIMINAL PROSECUTION HAD NOT BEEN
INSTITUTED. 

FN18  EVEN A DISPOSITION SO GUARDED WOULD REALIZE FOR THE OWNER THE
FRUIT OF HIS WRONGDOING IN THE CASE OF PATENTS ILLEGALLY ACQUIRED AND
INTEGRATED IN THE POOL.  BUT IT WOULD TERMINATE THE CONTINUING BENEFIT
TO HIM AND THE POSSIBILITY OF HIS FURTHER MISUSING THE PATENT TO THE
PUBLIC HARM. 

FN19  CF. MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488; MERCOID
CORP. V. MID-CONTINENT INVESTMENT CO., 320 U.S. 661. 

MR. JUSTICE BLACK JOINS IN THIS DISSENT. 
..END :





















METROPOLITAN BANK V. U.S., 323 U.S. 454 


NO. 161.  ARGUED DECEMBER 13, 14, 1944.  - DECIDED JANUARY 8, 1945.  -
142 F.2D 474, AFFIRMED. 


1.  RIGHTS AND LIABILITIES ON COMMERCIAL PAPER ISSUED BY THE
GOVERNMENT ARE TO BE DETERMINED BY FEDERAL RATHER THAN LOCAL LAW; AND,
IN THE ABSENCE OF AN APPLICABLE ACT OF CONGRESS, THE GOVERNING RULES
MUST BE FASHIONED BY THE FEDERAL COURTS.  P. 456. 

2.  THE GOVERNMENT IS ENTITLED TO RECOVER PAYMENTS MADE TO A
COLLECTING BANK ON GOVERNMENT CHECKS ON WHICH THE BANK HAD EXPRESSLY
GUARANTEED PRIOR ENDORSEMENTS BUT ON WHICH THE ENDORSEMENTS OF THE
PAYEES WERE FORGED; AND RECOVERY WAS NOT BARRED BY THE NEGLIGENT
FAILURE OF THE GOVERNMENT TO DETECT THE FRAUD OF A GOVERNMENT CLERK
WHO, OVER A PERIOD OF 28 MONTHS, HAD FRAUDULENTLY PROCURED ISSUANCE OF
THE CHECKS UPON FORGED VOUCHERS.  UNITED STATES V. CHASE NATIONAL BANK,
252 U.S. 485, DISTINGUISHED.  P. 457. 

3.  NEGLIGENCE OF A DRAWER-DRAWEE IN FAILING TO DISCOVER FRAUD PRIOR
TO A GUARANTY OF THE GENUINENESS OF PRIOR ENDORSEMENTS DOES NOT ABSOLVE
THE GUARANTOR FROM LIABILITY WHERE THE PRIOR ENDORSEMENTS HAVE BEEN
FORGED.  P. 459. 

NATIONAL METROPOLITAN BANK V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, POST, P. 692, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE UNITED STATES IN A SUIT AGAINST THE BANK TO RECOVER PAYMENTS MADE
ON GOVERNMENT CHECKS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ONE FOLEY, A CIVILIAN CLERK IN THE PAYMASTER'S OFFICE OF THE MARINE
CORPS, PROCURED THE ISSUANCE OF 144 GOVERNMENT CHECKS, DULY SIGNED BY
THE AUTHORIZED DISBURSING OFFICIALS, BY FORGING PAY AND TRAVEL MILEAGE
VOUCHERS IN THE NAMES OF LIVING MARINE CORPS OFFICERS.  THESE FORGERIES
OCCURRED DURING A PERIOD OF TWENTY-EIGHT MONTHS, BEGINNING SHORTLY
BEFORE JULY 14, 1936, AND ENDING NOVEMBER 16, 1938.  THE CHECKS WERE
DRAWN ON THE UNITED STATES TREASURY PAYABLE TO THE ORDER OF THE
OFFICERS AND DELIVERED TO FOLEY FOR DISTRIBUTION TO THEM.  FOLEY FORGED
THEIR ENDORSEMENTS, ADDED HIS OWN NAME AS SECOND ENDORSER, AND
DEPOSITED OR CASHED THE CHECKS AT THE ANACOSTIA BANK.  THAT BANK,
WITHOUT INVESTIGATING THE GENUINENESS OF THE PAYEES' SIGNATURES,
ENDORSED THE CHECKS AND TRANSMITTED THEM TO THE PETITIONER BANK, WHICH
COLLECTED ON THEM FROM THE GOVERNMENT.  BOTH BANKS SPECIFICALLY
GUARANTEED PRIOR ENDORSEMENTS.  ABOUT NOVEMBER 21, 1938, THE GOVERNMENT
DISCOVERED THE FRAUD AND THE FORGERIES, AND ON DECEMBER 8TH FORMALLY
DEMANDED REPAYMENT FROM THE PETITIONER.  REPAYMENT WAS REFUSED.  ON
AUGUST 11, 1942, THE GOVERNMENT BROUGHT THIS SUIT IN THE DISTRICT COURT
TO RECOVER THE PAYMENTS MADE.  THE COMPLAINT CONTAINED TWO COUNTS, ONE
FOR BREACH OF EXPRESS WARRANTY, AND ONE FOR MONEY PAID UNDER A MISTAKE
OF FACT.  THE BANK FILED AN ANSWER IN WHICH IT ADMITTED THAT IT HAD
COLLECTED THE MONEYS FOR THE ACCOUNT OF THE ANACOSTIA BANK AFTER
PRESENTING THE CHECKS TO THE GOVERNMENT WITH ITS STAMPED ENDORSEMENT
GUARANTEEING PRIOR ENDORSEMENTS.  AS DEFENSE IT SET UP THE FOLLOWING:
(1) THE ENDORSEMENT DID NOT AMOUNT TO A GUARANTY OF THE PAYEE'S
SIGNATURE; (2) ISSUANCE OF THE CHECKS BY THE GOVERNMENT WAS A WARRANTY
THAT THEY WERE NOT "FICTITIOUS," BUT GENUINE AND ISSUED FOR A VALUABLE
CONSIDERATION, AND THIS WARRANTY WAS BREACHED; (3) THE GOVERNMENT'S
DISBURSING AGENCIES NEGLECTED PROPERLY TO SUPERVISE AND EXAMINE THE
TRANSACTIONS BOTH BEFORE AND AFTER THE FIRST AND SUCCEEDING CHECKS WERE
ISSUED, THEREBY DELAYING DISCOVERY OF THE FRAUD, AND THIS NEGLECT, NOT
THE BANK'S GUARANTY, CAUSED THE GOVERNMENT'S LOSS.  THE DISTRICT COURT
GRANTED THE GOVERNMENT'S MOTION FOR JUDGMENT ON THE PLEADINGS, AND THE
COURT OF APPEALS AFFIRMED, 142 F.2D 474, ON THE AUTHORITY OF ITS OWN
PRIOR DECISION IN WASHINGTON LOAN & TRUST CO. V. UNITED STATES, 134
F.2D 59(1943).  BECAUSE OF A CONFLICT WITH UNITED STATES V. FIRST
NATIONAL BANK, 138 F.2D 681, (C.C.A. 7, 1943), WE GRANTED CERTIORARI. 

ONLY RECENTLY, IN CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S.
363, WE HAD OCCASION TO CONSIDER RIGHTS AND LIABILITIES OF THE
GOVERNMENT WHICH STEM FROM THE ISSUANCE AND CIRCULATION OF ITS
COMMERCIAL PAPER.  OUR CONCLUSION WAS THAT LEGAL QUESTIONS INVOLVED IN
CONTROVERSIES OVER SUCH COMMERCIAL PAPERS ARE TO BE RESOLVED BY THE
APPLICATION OF FEDERAL RATHER THAN LOCAL LAW AND THAT, IN THE ABSENCE
OF AN APPLICABLE ACT OF CONGRESS, FEDERAL COURTS MUST FASHION THE
GOVERNING RULES.  SOME OF THE QUESTIONS PETITIONER ARGUES HERE ARE
FORECLOSED BY THE CLEARFIELD DECISION.  THERE WE HELD THAT PRESENTATION
OF A GOVERNMENT CHECK TO IT FOR PAYMENT WITH AN EXPRESS GUARANTY OF
PRIOR ENDORSEMENTS AMOUNTS TO A WARRANTY THAT THE SIGNATURE OF THE
PAYEE WAS NOT FORGED, BUT GENUINE.  BREACH OF THAT WARRANTY, WE SAID,
BY PRESENTING A CHECK ON WHICH THE PAYEE'S SIGNATURE IS A FORGERY,
GIVES THE GOVERNMENT A RIGHT TO RECOVER FROM THE GUARANTOR WHEN PAYMENT
IS MADE.  THE CHECKS IN THE INSTANT CASE WERE PRESENTED TO THE
GOVERNMENT BY THE BANK BEARING FORGED ENDORSEMENTS OF THE PAYEE'S NAME,
AND A SPECIFIC GUARANTY BY THE BANK.  UNDER THE CLEARFIELD RULE,
THEREFORE, THE GOVERNMENT SHOULD RECOVER, UNLESS OTHER PRINCIPLES HERE
INVOKED EXEMPT IT FROM LIABILITY. 

IT IS CONTENDED THAT HAD IT NOT BEEN FOR NEGLIGENCE OF THE
GOVERNMENT'S ADMINISTRATIVE OFFICERS IN DETECTING THE FRAUDS OF ITS
CLERK, SOME, IF NOT ALL, OF THE CHECKS WOULD NOT HAVE BEEN ISSUED, AND
THAT NEITHER THE GOVERNMENT NOR THE BANK WOULD HAVE SUFFERED ANY LOSS. 
THE ANSWER ALLEGED FACTS WHICH, IF TRUE, DID SHOW NEGLIGENCE IN FAILING
TO DISCOVER THE FRAUDS, AND SINCE JUDGMENT WAS ENTERED ON THE PLEADINGS
WITHOUT TRIAL, WE MUST TREAT THE CASE AS THOUGH NEGLIGENCE IN THIS
RESPECT HAD BEEN ESTABLISHED.  THIS QUESTION AS TO THE EFFECT OF THE
DRAWER-DRAWEE'S NEGLIGENCE PRIOR TO A SPECIFIC GUARANTY OF ENDORSEMENTS
WAS NOT DIRECTLY INVOLVED IN OUR CLEARFIELD CASE; IT WAS AN ISSUE IN
UNITED STATES V. NATIONAL EXCHANGE BANK, 214 U.S. 302, A CASE ON WHICH
WE LARGELY DREW FOR THE PRINCIPLES ANNOUNCED IN THE CLEARFIELD
DECISION.  IN THE LATTER CASE, WE POINTED OUT THAT THE NATIONAL
EXCHANGE BANK CASE STOOD FOR THE RULE THAT PROMPT DISCOVERY OF FRAUD
WAS NOT A CONDITION PRECEDENT TO SUIT IN CASES LIKE THIS.  THE NATIONAL
EXCHANGE BANK CASE PRESENTED A SITUATION WHERE 194 GOVERNMENT CHECKS
HAD BEEN ISSUED OVER A PERIOD OF TEN YEARS AS A RESULT OF FORGED
VOUCHERS.  THERE, AS HERE, PROPER EXAMINATION AND SUPERVISION BY
GOVERNMENT OFFICIALS WOULD HAVE UNCOVERED THE FRAUDS AND THEREBY
PREVENTED OR REDUCED THE LOSS.  THE COLLECTING BANK DEFENDED THERE, AS
HERE, ON THE GROUND THAT THE GOVERNMENT'S FAILURE TO DISCOVER THE FRAUD
SHOULD ABSOLVE THE COLLECTING BANK FROM LIABILITY.  THIS COURT,
APPLYING THE GENERAL LAW MERCHANT, REJECTED THE DEFENSE.  THE RULE
THERE APPLIED, AS POINTED OUT BY THE COURT BELOW IN WASHINGTON LOAN &
TRUST CO. V. UNITED STATES, SUPRA, HAS BEEN ALMOST UNANIMOUSLY ACCEPTED
BY STATE AND FEDERAL COURTS.  NO PERSUASIVE REASONS HAVE BEEN SUGGESTED
TO US WHY IT SHOULD NOT BE ACCEPTED AS THE GENERAL FEDERAL RULE. 

REJECTION OF THE DEFENSE OF THE GOVERNMENT'S NEGLIGENCE HERE SET UP
DOES NOT, AS PETITIONER ARGUES, CONFLICT WITH THIS COURT'S HOLDING IN
UNITED STATES V. CHASE NATIONAL BANK, 252 U.S. 485.  IN THAT CASE THE
GOVERNMENT BROUGHT SUIT AGAINST A BANK TO RECOVER PAYMENT IT MADE OF A
GOVERNMENT DRAFT WHICH WAS ITSELF A FORGERY.  THE NAME OF THE PAYEE WAS
ALSO FORGED.  RECOVERY WAS DENIED BECAUSE THE INSTRUMENT WAS A
FORGERY.  THE HOLDING RESTED ON A LONG ESTABLISHED EXCEPTION TO THE
GENERAL RULE UNDER WHICH ONE WHO PRESENTS AND COLLECTS A VALID
COMMERCIAL INSTRUMENT WITH A FORGED ENDORSEMENT CAN BE COMPELLED TO
REPAY.  THE REASON FOR THE EXCEPTION IS THAT A DRAWEE IS REQUIRED TO BE
FAMILIAR WITH A DRAWER'S SIGNATURE; IF THEREFORE THE DRAWEE PAYS TO AN
INNOCENT PRESENTER ON A FORGED DRAWER'S SIGNATURE, IT HAS BEEN HELD
THAT THE DRAWEE'S RIGHT TO THE MONEY IS NOT SUPERIOR TO THAT OF THE
INNOCENT PRESENTER.  PRICE V. NEAL, 3 BURR.  1354.  THIS EXCEPTION IS
NOT APPLICABLE HERE BECAUSE THE SIGNATURES OF THE DRAWER ON THESE
CHECKS WERE GENUINE WHILE THOSE IN THE CHASE NATIONAL BANK CONTROVERSY
WERE FORGED.  THE FACT THAT THESE CHECKS WERE INDUCED BY FRAUD DOES NOT
BRING THEM WITHIN THE REASONING OF THE CHASE NATIONAL BANK RULE. 

THERE IS NOTHING HERE TO SUPPORT THE PETITIONER'S CONTENTION THAT THE
GOVERNMENT'S CONDUCT IN ISSUING THE CHECKS PROMPTED IT TO GUARANTEE THE
PAYEE'S ENDORSEMENT.  SUCH A GUARANTEE NO MORE RESULTS FROM THE
ISSUANCE OF GOVERNMENT CHECKS THAN ANY OTHER CHECKS.  GOVERNMENT
REGULATIONS CONCERNING PAYMENT OF ITS COMMERCIAL PAPER POINT THE OTHER
WAY.  TREASURY REGULATIONS HAVE MADE GUARANTEE OF PRIOR ENDORSEMENTS A
PREREQUISITE TO PAYMENT.  31 C.F.R. 202.33.  THIS GUARANTY WAS A
PROTECTION WHICH THE GOVERNMENT SOUGHT NOT ONLY AS TO CHECKS WHICH WERE
ISSUED IN DUE COURSE FOR A VALUABLE CONSIDERATION, BUT AS TO CHECKS
WHICH MIGHT HAVE BEEN IRREGULARLY ISSUED.  THAT THE ADMINISTRATIVE
OFFICERS FAILED FULLY TO PERFORM THEIR DUTY IS NO REASON WHY THE
GOVERNMENT SHOULD BE DEPRIVED OF THE ADVANTAGE OF A GUARANTEE
INDEPENDENTLY MADE BY ONE WHO WAS NOT UNDER COMPULSION OF ANY KIND TO
MAKE IT.  NO EQUITABLE PRINCIPLES REQUIRE THAT ONE WHO, FOR HIS OWN
REASONS, GUARANTEES A PAYEE'S SIGNATURE AFTER ISSUANCE OF A CHECK,
SHALL BE RELIEVED OF HIS VOLUNTARILY ASSUMED OBLIGATION BECAUSE OTHERS
WHO OWED THE GOVERNMENT OBLIGATIONS HAD PREVIOUSLY DEFAULTED IN THEIR
OBLIGATIONS. 

WE DO NOT SAY THAT THERE MAY NOT BE SOME CIRCUMSTANCES, NOT NOW
BEFORE US, UNDER WHICH THE GOVERNMENT MIGHT BE PRECLUDED FROM RECOVERY
BECAUSE OF CONDUCT OF A DRAWER PRIOR TO A GUARANTY OF ENDORSEMENT.  WE
DO HOLD THAT NEGLIGENCE OF A DRAWER-DRAWEE IN FAILING TO DISCOVER FRAUD
PRIOR TO A GUARANTY OF THE GENUINENESS OF PRIOR ENDORSEMENTS DOES NOT
ABSOLVE THE GUARANTOR FROM LIABILITY IN CASES WHERE THE PRIOR
ENDORSEMENTS HAVE BEEN FORGED.  AFFIRMED. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













FORD CO. V. DEPT. OF TREASURY, 323 U.S. 459 


NO. 75.  ARGUED DECEMBER 7, 1944.  - DECIDED JANUARY 8, 1945.  - 141
F.2D 24, VACATED. 


1.  A SUIT AGAINST THE DEPARTMENT OF TREASURY OF THE STATE OF INDIANA
AND INDIVIDUALS CONSTITUTING THE "BOARD OF THE DEPARTMENT OF TREASURY,"
BROUGHT PURSUANT TO SEC. 64-2614 OF BURNS' INDIANA STATUTES ANNOTATED
(1943 REPLACEMENT) FOR A REFUND OF TAXES ALLEGED TO HAVE BEEN ILLEGALLY
COLLECTED, HELD A SUIT AGAINST THE STATE, IN RESPECT OF WHICH THE STATE
HAD NOT CONSENTED TO THE JURISDICTION OF THE FEDERAL DISTRICT COURT. 
P. 463. 

2.  WHERE A SUIT IS IN ESSENCE ONE FOR THE RECOVERY OF MONEY FROM THE
STATE, THE STATE IS THE REAL PARTY IN INTEREST AND IS ENTITLED TO
INVOKE ITS SOVEREIGN IMMUNITY FROM SUIT, EVEN THOUGH INDIVIDUAL
OFFICIALS ARE NOMINAL DEFENDANTS.  P. 464. 

3.  THE ELEVENTH AMENDMENT DENIES TO THE FEDERAL COURTS AUTHORITY TO
ENTERTAIN A SUIT BROUGHT BY PRIVATE PARTIES AGAINST A STATE WITHOUT THE
STATE'S CONSENT.  P. 464. 

4.  INTERPRETATION OF SEC. 64-2614 AS AUTHORIZING SUITS FOR REFUNDS
OF TAXES ONLY IN STATE COURTS ACCORDS WITH THE LEGISLATIVE POLICY OF
THE STATE.  P. 466. 

5.  THE CONTENTION THAT THE SUIT IS AGAINST THE STATE AND IN
CONTRAVENTION OF THE ELEVENTH AMENDMENT IS CONSIDERED BY THIS COURT
THOUGH URGED HERE FOR THE FIRST TIME IN THIS PROCEEDING.  P. 467. 

6.  NEITHER THE ATTORNEY GENERAL NOR ANY OTHER ADMINISTRATIVE OR
EXECUTIVE OFFICER OF THE STATE WAS AUTHORIZED BY STATE LAW TO WAIVE THE
STATE'S IMMUNITY IN THIS PROCEEDING.  P. 468. 

FORD MOTOR CO. V. DEPARTMENT OF TREASURY OF INDIANA ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 322 U.S. 721, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DENYING RECOVERY IN A SUIT FOR A REFUND OF STATE TAXES ALLEGED TO HAVE
BEEN ILLEGALLY COLLECTED. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT BRINGS HERE FOR REVIEW AN ACTION BY PETITIONER, A NON
RESIDENT FOREIGN MANUFACTURING CORPORATION, AGAINST THE RESPONDENTS,
THE DEPARTMENT OF TREASURY OF THE STATE OF INDIANA AND M. CLIFFORD
TOWNSEND, JOSEPH M. ROBERTSON AND FRANK G. THOMPSON, THE GOVERNOR,
TREASURER AND AUDITOR, RESPECTIVELY, OF THE STATE OF INDIANA, WHO
"TOGETHER" CONSTITUTED THE BOARD OF THE DEPARTMENT OF TREASURY.  FN1
PETITIONER SEEKS A REFUND OF GROSS INCOME TAXES PAID TO THE DEPARTMENT
AND MEASURED BY SALES CLAIMED BY THE STATE TO HAVE OCCURRED IN
INDIANA.  FN2 JURISDICTION OF THE UNITED STATES DISTRICT COURT IS
FOUNDED ON ALLEGATIONS OF THE VIOLATION OF ARTICLE I, SEC. 8, THE
COMMERCE CLAUSE, AND THE FOURTEENTH AMENDMENT OF THE CONSTITUTION.  THE
STATE STATUTORY PROCEDURE FOR OBTAINING A REFUND WHICH PETITIONER
FOLLOWED IS SET FORTH IN SEC. 64-2614(A) OF THE INDIANA STATUTES.  FN3 

THE DISTRICT COURT DENIED RECOVERY.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  FN4  CERTIORARI WAS GRANTED  FN5  ON PETITIONER'S ASSERTION
OF ERROR IN THAT THE CIRCUIT COURT OF APPEALS DECIDED AN IMPORTANT
QUESTION OF LOCAL LAW PROBABLY IN CONFLICT WITH AN APPLICABLE DECISION
OF THE SUPREME COURT OF INDIANA.  DEPARTMENT OF TREASURY V.
INTERNATIONAL HARVESTER CO., 221 IND. 416, 47 N.E.2D 150.  AS WE
CONCLUDE THAT PETITIONER'S ACTION COULD NOT BE MAINTAINED IN THE
FEDERAL COURT, WE DO NOT DECIDE THE MERITS OF THE ISSUE. 

PETITIONER'S RIGHT TO MAINTAIN THIS ACTION IN A FEDERAL COURT
DEPENDS, FIRST, UPON WHETHER THE ACTION IS AGAINST THE STATE OF INDIANA
OR AGAINST AN INDIVIDUAL.  SECONDLY, IF THE ACTION IS AGAINST THE
STATE, WHETHER THE STATE HAS CONSENTED TO BE SUED IN THE FEDERAL
COURTS.  RECENTLY THESE QUESTIONS WERE DISCUSSED IN GREAT NORTHERN
INSURANCE CO. V. READ, 322 U.S. 47. 

IN THAT CASE THIS COURT HELD THAT AS THE SUIT WAS AGAINST A STATE
OFFICIAL AS SUCH, THROUGH PROCEEDINGS WHICH WERE AUTHORIZED BY STATUTE
TO COMPEL HIM TO CARRY OUT WITH STATE FUNDS THE STATE'S AGREEMENT TO
REIMBURSE MONEYS ILLEGALLY EXACTED UNDER COLOR OF THE TAX POWER, THE
SUIT WAS ONE AGAINST THE STATE.  WE SAID THAT SUCH A SUIT WAS CLEARLY
DISTINGUISHABLE FROM ACTIONS AGAINST A TAX COLLECTOR TO RECOVER A
PERSONAL JUDGMENT FOR MONEY WRONGFULLY COLLECTED UNDER COLOR OF STATE
LAW.  322 U.S. 47, 50-51.  WHERE RELIEF IS SOUGHT UNDER GENERAL LAW
FROM WRONGFUL ACTS OF STATE OFFICIALS, THE SOVEREIGN'S IMMUNITY UNDER
THE ELEVENTH AMENDMENT DOES NOT EXTEND TO WRONGFUL INDIVIDUAL ACTION,
AND THE CITIZEN IS ALLOWED A REMEDY AGAINST THE WRONGDOER PERSONALLY. 
ATCHISON, T. & S.F.R. CO. V. O'CONNOR, 223 U.S. 280; CF. MATTHEWS V.
RODGERS, 284 U.S. 521, 528.  WHERE, HOWEVER, AN ACTION IS AUTHORIZED BY
STATUTE AGAINST A STATE OFFICER IN HIS OFFICIAL CAPACITY AND
CONSTITUTING AN ACTION AGAINST THE STATE, THE ELEVENTH AMENDMENT
OPERATES TO BAR SUIT EXCEPT IN SO FAR AS THE STATUTE WAIVES STATE
IMMUNITY FROM SUIT.  SMITH V. REEVES, 178 U.S. 436; GREAT NORTHERN
INSURANCE CO. V. READ, 322 U.S. 47. 

WE ARE OF THE OPINION THAT PETITIONER'S SUIT IN THE INSTANT CASE
AGAINST THE DEPARTMENT AND THE INDIVIDUALS AS THE BOARD CONSTITUTES AN
ACTION AGAINST THE STATE OF INDIANA.  A STATE STATUTE PRESCRIBED THE
PROCEDURE FOR OBTAINING REFUND OF TAXES ILLEGALLY EXACTED, PROVIDING
THAT A TAXPAYER FIRST FILE A TIMELY APPLICATION FOR A REFUND WITH THE
STATE DEPARTMENT OF TREASURY.  FN6 UPON DENIAL OF SUCH CLAIM, THE
TAXPAYER IS AUTHORIZED TO RECOVER THE ILLEGAL EXACTION IN AN ACTION
AGAINST THE "DEPARTMENT."  JUDGMENT OBTAINED IN SUCH ACTION IS TO BE
SATISFIED BY PAYMENT "OUT OF ANY FUNDS IN THE STATE TREASURY."  FN7
THIS SECTION CLEARLY PROVIDES FOR AN ACTION AGAINST THE STATE, AS
OPPOSED TO ONE AGAINST THE COLLECTING OFFICIAL INDIVIDUALLY.  NO STATE
COURT DECISION HAS BEEN CALLED TO OUR ATTENTION WHICH WOULD INDICATE
THAT A DIFFERENT INTERPRETATION OF THIS STATUTE HAS BEEN ADOPTED BY
STATE COURTS. 

PETITIONER'S SUIT IN THE FEDERAL DISTRICT COURT IS BASED ON SEC. 64
2614(A) OF THE INDIANA STATUTES AND THEREFORE CONSTITUTES AN ACTION
AGAINST THE STATE, NOT AGAINST THE COLLECTING OFFICIAL AS AN
INDIVIDUAL.  PETITIONER BROUGHT ITS ACTION IN STRICT ACCORD WITH SEC.
64-2614(A).  THE ACTION IS AGAINST THE STATE'S DEPARTMENT OF TREASURY. 
THE COMPLAINT CAREFULLY DETAILS COMPLIANCE WITH THE PROVISIONS OF SEC.
64-2614(A) WHICH REQUIRE A TIMELY APPLICATION FOR REFUND TO THE
DEPARTMENT AS A PREREQUISITE TO A COURT ACTION AUTHORIZED IN THE
THE GOVERNOR, TREASURER AND AUDITOR OF THE STATE AS DEFENDANTS, WHO
"TOGETHER CONSTITUTE THE BOARD OF DEPARTMENT OF TREASURY OF THE STATE
OF INDIANA."  BUT, THEY WERE JOINED AS THE COLLECTIVE REPRESENTATIVES
OF THE STATE, NOT AS INDIVIDUALS AGAINST WHOM A PERSONAL JUDGMENT IS
SOUGHT.  THE PETITIONER DID NOT ASSERT ANY CLAIM TO A PERSONAL JUDGMENT
AGAINST THESE INDIVIDUALS FOR THE CONTESTED TAX PAYMENTS.  THE
PETITIONER'S CLAIM IS FOR A "REFUND," NOT FOR THE IMPOSITION OF
PERSONAL LIABILITY ON INDIVIDUAL DEFENDANTS FOR SUMS ILLEGALLY
EXACTED.  WE HAVE PREVIOUSLY HELD THAT THE NATURE OF A SUIT AS ONE
AGAINST THE STATE IS TO BE DETERMINED BY THE ESSENTIAL NATURE AND
EFFECT OF THE PROCEEDING.  EX PARTE AYERS, 123 U.S. 443, 490-99; EX
PARTE NEW YORK, 256 U.S. 490, 500; WORCESTER COUNTY TRUST CO. V. RILEY,
302 U.S. 292, 296-98.  AND WHEN THE ACTION IS IN ESSENCE ONE FOR THE
RECOVERY OF MONEY FROM THE STATE, THE STATE IS THE REAL, SUBSTANTIAL
PARTY IN INTEREST AND IS ENTITLED TO INVOKE ITS SOVEREIGN IMMUNITY FROM
SUIT EVEN THOUGH INDIVIDUAL OFFICIALS ARE NOMINAL DEFENDANTS.  SMITH V.
REEVES, SUPRA; GREAT NORTHERN INSURANCE CO. V. READ, SUPRA.  WE ARE OF
THE OPINION, THEREFORE, THAT THE PRESENT PROCEEDING WAS BROUGHT IN
RELIANCE ON SEC. 64-2614(A) AND IS A SUIT AGAINST THE STATE. 

IT REMAINS TO BE CONSIDERED WHETHER THE STATE OF INDIANA HAS
CONSENTED TO THIS ACTION AGAINST IT IN THE FEDERAL COURT. 

THE ELEVENTH AMENDMENT PROVIDES THAT:  "THE JUDICIAL POWER OF THE
UNITED STATES SHALL NOT BE CONSTRUED TO EXTEND TO ANY SUIT IN LAW OR
EQUITY, COMMENCED OR PROSECUTED AGAINST ONE OF THE UNITED STATES BY
CITIZENS OF ANOTHER STATE, OR BY CITIZENS OR SUBJECTS OF ANY FOREIGN
STATE."  THIS EXPRESS CONSTITUTIONAL LIMITATION DENIES TO THE FEDERAL
COURTS AUTHORITY TO ENTERTAIN A SUIT BROUGHT BY PRIVATE PARTIES AGAINST
A STATE WITHOUT ITS CONSENT.  HANS V. LOUISIANA, 134 U.S. 1, 10; EX
PARTE NEW YORK, 256 U.S. 490, 497; MISSOURI V. FISKE, 290 U.S. 18, 25;
UNITED STATES V. U.S. FIDELITY & GUARANTY CO., 309 U.S. 506, 512; GREAT
NORTHERN INSURANCE CO. V. READ, SUPRA; STATE V. MUTUAL LIFE INS. CO.,
175 IND. 59, 71, 93 N.E. 213; HOGSTON V. BELL, 185 IND. 536, 548, 112
N.E. 883.  WHILE THE STATE'S IMMUNITY FROM SUIT MAY BE WAIVED, CLARK V.
BARNARD, 108 U.S. 436, 447; GUNTER V. ATLANTIC COAST LINE, 200 U.S.
273; MISSOURI V. FISKE, 290 U.S. 18, 24, THERE IS NOTHING TO INDICATE
AUTHORIZATION OF SUCH WAIVER BY INDIANA IN THE PRESENT PROCEEDING. 

IN ANY COURT OF COMPETENT JURISDICTION; AND THE CIRCUIT OR SUPERIOR
COURT OF THE COUNTY IN WHICH THE TAXPAYER RESIDES OR IS LOCATED SHALL
HAVE ORIGINAL JURISDICTION OF ACTION TO RECOVER ANY AMOUNT IMPROPERLY
COLLECTED."  IN THE READ CASE WE CONSTRUED A SIMILAR PROVISION OF AN
OKLAHOMA TAX REFUND STATUTE AS A WAIVER OF STATE IMMUNITY FROM SUIT IN
STATE COURTS ONLY.  322 U.S. 47, 54.  AS WAS SAID IN THAT CASE:  "WHEN
A STATE AUTHORIZES A SUIT AGAINST ITSELF TO DO JUSTICE TO TAXPAYERS WHO
DEEM THEMSELVES INJURED BY ANY EXACTION, IT IS NOT CONSONANT WITH OUR
DUAL SYSTEM FOR THE FEDERAL COURTS TO BE ASTUTE TO READ THE CONSENT TO
EMBRACE FEDERAL AS WELL AS STATE COURTS....  WHEN WE ARE DEALING WITH
THE SOVEREIGN EXEMPTION FROM JUDICIAL INTERFERENCE IN THE VITAL FIELD
OF FINANCIAL ADMINISTRATION A CLEAR DECLARATION OF THE STATE'S
INTENTION TO SUBMIT ITS FISCAL PROBLEMS TO OTHER COURTS THAN THOSE OF
ITS OWN CREATION MUST BE FOUND."  CF. UNITED STATES V. SHAW, 309 U.S.
495, 501.  SECTION 64-2614 DOES NOT CONTAIN ANY CLEAR INDICATION THAT
THE STATE INTENDED TO CONSENT TO SUIT IN FEDERAL COURTS.  FN8  THE
PROVISION IN THIS SECTION WHICH VESTS ORIGINAL JURISDICTION OF SUITS
FOR REFUND IN THE "CIRCUIT OR SUPERIOR COURT OF THE COUNTY IN WHICH THE
TAXPAYER RESIDES OR IS LOCATED" INDICATES THAT THE STATE LEGISLATURE
CONTEMPLATED SUIT IN THE STATE COURTS.  FN9  MOREOVER, THIS
INTERPRETATION OF SEC. 64-2614(A) TO AUTHORIZE SUITS ONLY IN STATE
COURTS ACCORDS WITH THE STATE LEGISLATIVE POLICY.  INDIANA HAS ADOPTED
A LIBERAL POLICY TOWARD GENERAL CONTRACT CLAIMANTS BUT CONFINES THEIR
SUITS AGAINST THE STATE TO STATE COURTS.  FN10 

IT REMAINS TO BE CONSIDERED WHETHER THE ATTORNEY GENERAL FOR THE
STATE OF INDIANA IN HIS CONDUCT OF THE PRESENT PROCEEDING HAS WAIVED
THE STATE'S IMMUNITY FROM SUIT.  THE STATE ATTORNEY GENERAL IS
AUTHORIZED TO REPRESENT THE STATE IN ACTIONS BROUGHT UNDER THE INDIANA
REFUND STATUTE  FN11.  HE APPEARED IN THE FEDERAL DISTRICT COURT AND
THE CIRCUIT COURT OF APPEALS AND DEFENDED THE SUIT ON THE MERITS.  THE
OBJECTION TO PETITIONER'S SUIT AS A VIOLATION OF THE ELEVENTH AMENDMENT
WAS FIRST MADE AND ARGUED BY INDIANA IN THIS COURT.  THIS WAS IN TIME,
HOWEVER.  THE ELEVENTH AMENDMENT DECLARES A POLICY AND SETS FORTH AN
EXPLICIT LIMITATION ON FEDERAL JUDICIAL POWER OF SUCH COMPELLING FORCE
THAT THIS COURT WILL CONSIDER THE ISSUE ARISING UNDER THIS AMENDMENT IN
THIS CASE EVEN THOUGH URGED FOR THE FIRST TIME IN THIS COURT. 

IT IS CONCEDED BY THE RESPONDENTS THAT IF IT IS WITHIN THE POWER OF
THE ADMINISTRATIVE AND EXECUTIVE OFFICERS OF INDIANA TO WAIVE THE
STATE'S IMMUNITY, THEY HAVE DONE SO IN THIS PROCEEDING.  THE ISSUE THUS
BECOMES ONE OF THEIR POWER UNDER STATE LAW TO DO SO.  AS THIS ISSUE HAS
NOT BEEN DETERMINED BY STATE COURTS,  FN12  THIS COURT MUST RESORT TO
THE GENERAL POLICY OF THE STATE AS EXPRESSED IN ITS CONSTITUTION,
STATUTES AND DECISIONS.  ARTICLE 4, SEC. 24 OF THE INDIANA CONSTITUTION
PROVIDES: 

"PROVISION MAY BE MADE, BY GENERAL LAW, FOR BRINGING SUIT AGAINST THE
STATE, AS TO ALL LIABILITIES ORIGINATING AFTER THE ADOPTION OF THIS
CONSTITUTION; BUT NO SPECIAL ACT AUTHORIZING SUCH SUIT TO BE BROUGHT,
OR MAKING COMPENSATION TO ANY PERSON CLAIMING DAMAGES AGAINST THE
STATE, SHALL EVER BE PASSED." 

WE INTERPRET THIS PROVISION AS INDICATING A POLICY PROHIBITING STATE
CONSENT TO SUIT IN ONE PARTICULAR CASE IN THE ABSENCE OF A GENERAL
CONSENT TO SUIT IN ALL SIMILAR CAUSES OF ACTION.  SINCE THE STATE
LEGISLATURE MAY WAIVE STATE IMMUNITY ONLY BY GENERAL LAW, IT IS NOT TO
BE PRESUMED IN THE ABSENCE OF CLEAR LANGUAGE TO THE CONTRARY, THAT THEY
CONFERRED ON ADMINISTRATIVE OR EXECUTIVE OFFICERS DISCRETIONARY POWER
TO GRANT OR WITHHOLD CONSENT IN INDIVIDUAL CASES.  NOR DO WE THINK THAT
ANY OF THE GENERAL OR SPECIAL POWERS CONFERRED BY STATUTE ON THE
INDIANA ATTORNEY GENERAL TO APPEAR AND DEFEND ACTIONS BROUGHT AGAINST
THE STATE OR ITS OFFICIALS CAN BE DEEMED TO CONFER ON THAT OFFICER
POWER TO CONSENT TO SUIT AGAINST THE STATE IN COURTS WHEN THE STATE HAS
NOT CONSENTED TO BE SUED.  FN13  STATE COURT DECISIONS CONSTRUE
STRICTLY THE STATUTORY POWERS CONFERRED ON THE INDIANA STATE ATTORNEY
GENERAL AND HOLD THAT HE EXERCISES ONLY THOSE POWERS "DELEGATED" TO HIM
BY STATUTE AND DOES NOT POSSESS THE POWERS OF AN ATTORNEY GENERAL AT
"COMMON LAW."  FN14  IT WOULD SEEM, THEREFORE, THAT NO PROPERLY
AUTHORIZED EXECUTIVE OR ADMINISTRATIVE OFFICER OF THE STATE HAS WAIVED
THE STATE'S IMMUNITY TO SUIT IN THE FEDERAL COURTS. 

GUNTER V. ATLANTIC COAST LINE, 200 U.S. 273, IS NOT APPLICABLE TO THE
INSTANT CASE SINCE IT INVOLVED A TAXPAYER'S ANCILLARY SUIT TO ENJOIN
SOUTH CAROLINA TAX OFFICIALS FROM COLLECTING TAXES IN VIOLATION OF AN
EARLIER DECISION OF THIS COURT UPHOLDING THE VALIDITY OF A STATE
AGREEMENT TO EXEMPT THE TAXPAYER'S PROPERTY.  HUMPHREY V. PEGUES, 16
WALL.  244.  THE PEGUES CASE INVOLVED A SUIT AGAINST THE STATE IN THE
PERSON OF ITS TAX OFFICIALS, THE STATE ATTORNEY GENERAL APPEARING FOR
THE STATE AND ARGUING THE CASE ON THE MERITS, NO ISSUE OF SOVEREIGN
IMMUNITY BEING RAISED.  IN THE GUNTER PROCEEDING, BROUGHT OVER TWENTY
YEARS LATER, DEFENDANT SOUTH CAROLINA ATTACKED THE VALIDITY OF THE
PEGUES JUDGMENT ON THE GROUND THAT IN THAT PROCEEDING THE STATE HAD NOT
CONSENTED TO BE SUED.  THIS COURT HELD THE PEGUES JUDGMENT WAS RES
JUDICATA AND BINDING ON THE STATE BECAUSE THE SOUTH CAROLINA STATUTES
CONFERRED ON THE STATE OFFICIALS AND THE ATTORNEY GENERAL POWER THERE
TO "STAND IN JUDGMENT FOR THE STATE," 200 U.S. AT 285, 286-87.  THE
STATE'S SUBMISSION TO THE COURT WAS AUTHORIZED BY STATUTE, NOT BY THE
UNAUTHORIZED CONSENT OF AN OFFICIAL.  FARISH V. STATE BANKING BOARD,
235 U.S. 498, 512.  NO DISTINCTION WAS DRAWN BETWEEN FEDERAL AND STATE
COURTS.  RELIANCE WAS PLACED ON CONTEMPORANEOUS ADMINISTRATIVE
INTERPRETATION OF THE STATE STATUTES, ABSENCE OF ANY LEGISLATIVE ACTION
REPUDIATING THE ATTORNEY GENERAL'S CONDUCT OF THE CASE AND THE FAILURE
OF THE STATE GOVERNMENT IN ALL ITS DEPARTMENTS, FOR MORE THAN TWENTY
YEARS, TO ASSERT ANY RIGHT IN CONFLICT WITH THE PEGUES ADJUDICATION. 
ADMINISTRATIVE CONSTRUCTION BY A STATE OF ITS STATUTES OF CONSENT HAS
INFLUENCE IN DETERMINING OUR CONCLUSIONS.  GREAT NORTHERN INSURANCE CO.
V. READ, SUPRA.    AS WE INDICATED IN THE READ CASE, THE CONSTRUCTION
GIVEN THE INDIANA STATUTE LEAVES OPEN THE ROAD TO REVIEW IN THIS COURT
ON CONSTITUTIONAL GROUNDS AFTER THE ISSUES HAVE BEEN PASSED UPON BY
STATE COURTS.  THE ADVANTAGE OF HAVING STATE COURTS PASS INITIALLY UPON
QUESTIONS WHICH INVOLVE THE STATE'S LIABILITY FOR TAX REFUNDS IS
ILLUSTRATED BY THE INSTANT CASE WHERE PETITIONER SUED IN A FEDERAL
COURT FOR A REFUND ONLY TO URGE ON CERTIORARI THAT THE FEDERAL COURT
ERRED IN ITS INTERPRETATION OF THE STATE LAW APPLICABLE TO THE
QUESTIONS RAISED. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS VACATED AND THE CAUSE
IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE
COMPLAINT FOR WANT OF CONSENT BY THE STATE TO THIS SUIT. 

FN1  WE NEED NOT CONSIDER THE PRESENT STATUS OF THE BOARD OF THE
DEPARTMENT OF TREASURY AS SEC. 64-2614, BURNS, INDIANA STAT. ANN. (1943
REPLACEMENT), PROVIDES FOR SUIT AGAINST THE "DEPARTMENT."  SEE INDIANA
ACTS, 1933, CH. 4, SEC. 13; INDIANA ACTS, 1941, CH. 4 AND CH. 13, SECS.
2, 8; TUCKER V. STATE, 218 IND. 614, 35 N.E.2D 270. 

FN2  BURNS, INDIANA STAT. ANN. SEC. 64-2602(1943 REPLACEMENT). 

FN3  SECTION 64-2614(A) OF BURNS, INDIANA STAT. ANN. (1943
REPLACEMENT) PROVIDES: 

"IF ANY PERSON CONSIDERS THAT HE HAS PAID TO THE DEPARTMENT FOR ANY
YEAR AN AMOUNT WHICH IS IN EXCESS OF THE AMOUNT LEGALLY DUE FROM HIM
FOR THAT YEAR UNDER THE TERMS OF THIS ACT, HE MAY APPLY TO THE
DEPARTMENT, BY VERIFIED PETITION IN WRITING, AT ANY TIME WITHIN THREE
(3) YEARS AFTER THE PAYMENT FOR THE ANNUAL PERIOD FOR WHICH SUCH
ALLEGED OVERPAYMENT HAS BEEN MADE, FOR A CORRECTION OF THE AMOUNT SO
PAID BY HIM TO THE DEPARTMENT, AND FOR A REFUND OF THE AMOUNT WHICH HE
CLAIMS HAS BEEN ILLEGALLY COLLECTED AND PAID.  IN SUCH PETITION, HE
SHALL SET FORTH THE AMOUNT WHICH HE CLAIMS SHOULD BE REFUNDED, AND THE
REASONS FOR SUCH CLAIM.  THE DEPARTMENT SHALL PROMPTLY CONSIDER SUCH
PETITION, AND MAY GRANT SUCH REFUND, IN WHOLE OR IN PART, OR MAY WHOLLY
DENY THE SAME.  IF DENIED IN WHOLE OR IN PART, THE PETITIONER SHALL BE
FORTHWITH NOTIFIED OF SUCH ACTION OF THE DEPARTMENT, AND OF ITS GROUNDS
FOR SUCH DENIAL.  THE DEPARTMENT MAY, IN ITS DISCRETION, GRANT THE
PETITIONER A FURTHER HEARING WITH RESPECT TO SUCH PETITION.  ANY PERSON
IMPROPERLY CHARGED WITH ANY TAX PROVIDED FOR UNDER THE TERMS OF THIS
ACT, AND REQUIRED TO PAY THE SAME, MAY RECOVER ANY AMOUNT THUS
IMPROPERLY COLLECTED, TOGETHER WITH INTEREST, IN ANY PROPER ACTION OR
SUIT AGAINST THE DEPARTMENT IN ANY COURT OF COMPETENT JURISDICTION; AND
THE CIRCUIT OR SUPERIOR COURT OF THE COUNTY IN WHICH THE TAXPAYER
RESIDES OR IS LOCATED SHALL HAVE ORIGINAL JURISDICTION OF ACTION TO
RECOVER ANY AMOUNT IMPROPERLY COLLECTED:  PROVIDED, HOWEVER, THAT NO
COURT SHALL ENTERTAIN SUCH A SUIT, UNLESS THE TAXPAYER SHALL SHOW THAT
HE HAS FILED A PETITION FOR REFUND WITH THE DEPARTMENT, AS HEREINABOVE
PROVIDED, WITHIN ONE (1) YEAR PRIOR TO THE INSTITUTION OF THE ACTION:
PROVIDED, FURTHER, THAT NO SUCH SUIT SHALL BE ENTERTAINED UNTIL THE
EXPIRATION OF SIX (6) MONTHS FROM THE TIME OF FILING SUCH PETITION FOR
REFUND WITH THE DEPARTMENT, UNLESS IN THE MEANTIME, THE DEPARTMENT
SHALL HAVE NOTIFIED THE PETITIONER, IN WRITING, OF THE DENIAL OF SUCH
PETITION  ...." 

FN4  FORD MOTOR CO. V. DEPARTMENT OF TREASURY, 141 F.2D 24. 

FN5  322 U.S. 721. 

FN6  SEE NOTE 3 SUPRA, SEC. 64-2614(A). 

FN7  BURNS, INDIANA STAT. ANN. SEC. 64-2614(B)(1943 REPLACEMENT). 

FN8  SECTION 60-310, BURNS, INDIANA STAT. ANN. (1943 REPLACEMENT),
(ACTS, 1941, CH. 27, SEC. 1, P. 64), PROVIDES FOR THE CREATION OF A
STATE BOARD OF FINANCE.  THIS SECTION READS, IN PART, AS FOLLOWS:
"SUCH BOARD MAY SUE, AND BE SUED IN ITS NAME, IN ANY ACTION, AND IN ANY
COURT HAVING JURISDICTION, WHENEVER NECESSARY TO ACCOMPLISH THE
PURPOSES OF THIS ACT." 

IT DOES NOT APPEAR THAT THE RIGHT TO SUE THE DEPARTMENT OF TREASURY
FOR ERRONEOUS TAX PAYMENTS, WHICH WAS GRANTED BY SEC. 64-2614(A),
BURNS, INDIANA STAT. ANN. (1943 REPLACEMENT)(SEE ACTS, 1937, CH. 117,
SEC. 14, PP. 631-32) HAS BEEN REPEALED OR TRANSFERRED TO THE STATE
BOARD OF FINANCE BY THE ACTS, 1941, CH. 27, OR OTHERWISE. 

IF IT IS HELD BY INDIANA THAT THE STATE'S CONSENT TO BE SUED FOR THE
RECOVERY OF TAXES WAS COVERED BY SEC. 60-310 RATHER THAN BY SEC. 64
2614(A), WE SHOULD BE OF THE OPINION, UNTIL OTHERWISE ADVISED BY
INDIANA ADJUDICATIONS, THAT THE CONSENT WAS LIMITED TO SUITS IN THE
STATE COURTS. 

CHAPTER 27 OF THE ACTS OF 1941, WHICH CREATES THE STATE BOARD OF
FINANCE, APPARENTLY INVESTS THE BOARD WITH CONTROL OVER PUBLIC FUNDS
RATHER THAN WITH THE COLLECTION AND REFUND OF TAXES. 

FN9  REFERENCE TO A PARTICULAR STATE COURT IN A CALIFORNIA STATUTE
SIMILAR TO SEC. 64-2614 WAS HELD TO WARRANT AN INFERENCE THAT THE STATE
LEGISLATURE CONSENTED TO SUIT AGAINST THE STATE IN A STATE COURT ONLY. 
SEE SMITH V. REEVES, 178 U.S. 436, 441. 

FN10  BURNS, INDIANA STAT. ANN. SEC. 4-1501(1933), PROVIDES: 

"ANY PERSON OR PERSONS HAVING OR CLAIMING TO HAVE A MONEY DEMAND
AGAINST THE STATE OF INDIANA, ARISING, AT LAW OR IN EQUITY, OUT OF
CONTRACT, EXPRESS OR IMPLIED,  ...  MAY BRING SUIT AGAINST THE STATE
THEREFOR IN THE SUPERIOR COURT OF MARION COUNTY, INDIANA,  ...  AND
JURISDICTION IS HEREBY CONFERRED UPON SAID SUPERIOR COURT OF MARION
COUNTY, INDIANA, TO HEAR AND DETERMINE SUCH ACTION  ..." 

FN11  SECTION 64-2614(C) PROVIDES: 

"IT SHALL BE THE DUTY OF THE ATTORNEY-GENERAL TO REPRESENT THE
DEPARTMENT, AND/OR THE STATE OF INDIANA, IN ALL LEGAL MATTERS OR
LITIGATION, EITHER CRIMINAL OR CIVIL, RELATING TO THE ENFORCEMENT,
CONSTRUCTION, APPLICATION AND ADMINISTRATION OF THIS ACT, UPON THE
ORDER AND UNDER THE DIRECTION OF THE DEPARTMENT." 

FN12  STATE EX REL. WOODWARD V. SMITH, 85 IND. APP. 56, 152 N.E. 836,
IS THE ONLY INDIANA DECISION WHICH HAS COME TO OUR ATTENTION AS
INVOLVING THE AUTHORITY OF STATE EXECUTIVE OR ADMINISTRATIVE OFFICIALS
TO CONSENT TO SUIT AGAINST THE STATE.  IN THAT CASE PLAINTIFF SUED TO
FORECLOSE A MORTGAGE ON CERTAIN LAND AND JOINED THE STATE OF INDIANA AS
DEFENDANT IN ORDER TO OBTAIN CANCELLATION OF A PRIOR JUDGMENT LIEN ON
THIS PROPERTY IN FAVOR OF THE STATE.  THE DEFENDANT STATE FILED A CROSS
COMPLAINT FOR AFFIRMATIVE RELIEF SEEKING SATISFACTION OF ITS LIEN.  THE
INTERMEDIATE STATE COURT HELD THAT SINCE THE STATE APPEARED, PLEADED TO
THE MERITS AND FILED A CROSS-COMPLAINT FOR AFFIRMATIVE RELIEF, IT
THEREBY CONSENTED THAT IT MIGHT BE MADE A PARTY TO DETERMINE THE
PRIORITY OF ITS LIEN.  THIS CASE INVOLVES AN APPLICATION OF THE WELL
ACCEPTED PRINCIPLE THAT WHEN A SOVEREIGN SUES FOR AFFIRMATIVE RELIEF,
IT IS DEEMED TO HAVE WAIVED ITS SOVEREIGN IMMUNITY AS TO THE ISSUES
PRESENTED BY ITS AFFIRMATIVE CLAIM.  STATE V. PORTSMOUTH SAVINGS BANK,
106 IND. 435, 7 N.E. 379. 

FN13  SECTION 4-1504, BURNS, INDIANA STAT. ANN. (1933) AUTHORIZES THE
STATE ATTORNEY GENERAL TO REPRESENT THE STATE IN ACTIONS BROUGHT
AGAINST IT UNDER SEC. 4-1501, SEE NOTE 10, SUPRA; IT PROVIDES: 

"IT SHALL BE THE DUTY OF THE ATTORNEY-GENERAL OF STATE, IN PERSON OR
BY DEPUTY, TO DEFEND AND REPRESENT THE INTERESTS OF THE STATE IN SAID
SUPERIOR COURT OF MARION COUNTY, INDIANA, AND ALSO IN THE SUPREME COURT
ON APPEAL." 


"SUCH ATTORNEY-GENERAL SHALL PROSECUTE AND DEFEND ALL SUITS THAT MAY
BE INSTITUTED BY OR AGAINST THE STATE OF INDIANA, THE PROSECUTION AND
DEFENSE OF WHICH IS NOT OTHERWISE PROVIDED FOR BY LAW, WHENEVER HE
SHALL HAVE BEEN GIVEN TEN (10) DAYS' NOTICE OF THE PENDENCY THEREOF BY
THE CLERK OF THE COURT IN WHICH SUCH SUITS ARE PENDING, AND WHENEVER
REQUIRED BY THE GOVERNOR OR A MAJORITY OF THE OFFICERS OF STATE, IN
WRITING, TO BE FURNISHED HIM WITHIN A REASONABLE TIME; AND HE SHALL
REPRESENT THE STATE IN ALL CRIMINAL CASES IN THE SUPREME COURT, AND
SHALL DEFEND ALL SUITS BROUGHT AGAINST THE STATE OFFICERS IN THEIR
OFFICIAL RELATIONS, EXCEPT SUITS BROUGHT AGAINST THEM BY THE STATE; AND
HE SHALL BE REQUIRED TO ATTEND TO THE INTERESTS OF THE STATE IN ALL
SUITS, ACTIONS OR CLAIMS IN WHICH THE STATE IS OR MAY BECOME INTERESTED
IN THE SUPREME COURT OF THIS STATE." 

IN ACTIONS BROUGHT UNDER THE PROVISIONS OF SEC. 64-2614(A) UNDER WHICH
PETITIONER'S SUIT IS BROUGHT.  SEE NOTE 11, SUPRA. 

FN14  STATE EX REL. BINGHAM V. HOME BREWING CO., 182 IND. 75, 87-95,
105 N.E. 909; JULIAN V. STATE, 122 IND. 68, 23 N.E. 690.  VARIOUS LOWER
FEDERAL COURT DECISIONS HAVE HELD THAT A STATE ATTORNEY GENERAL CANNOT
WAIVE STATE IMMUNITY FROM SUIT.  DESERET WATER, OIL & IRR.  CO. V.
CALIFORNIA, 202 F. 498; TITLE GUARANTY & SURETY CO. V. GUERNSEY, 205 F.
91; O'CONNOR V. SLAKER, 22 F.2D 147; DUNNUCK V. KANSAS STATE HIGHWAY
COMMISSION, 21 F.SUPP.  882.  THE UNITED STATES ATTORNEY GENERAL HAS
BEEN HELD TO BE WITHOUT POWER TO WAIVE THE SOVEREIGN IMMUNITY OF THE
UNITED STATES.  STANLEY V. SCHWALBY, 162 U.S. 255, 269-70; CF. UNITED
STATES V. SHAW, 309 U.S. 495, 501. 

SEE RICHARDSON V. FAJARDO SUGAR CO., 241 U.S. 44, WHERE, WITHOUT
CONSIDERATION OF ANY LIMITATIONS ON HIS POWERS, WE HELD THAT THE
ATTORNEY GENERAL OF PUERTO RICO COULD WAIVE ITS SOVEREIGN IMMUNITY. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















WILLIAMS V. KAISER, 323 U.S. 471 


NO. 102.  ARGUED DECEMBER 12, 1944.  - DECIDED JANUARY 8, 1945.  -
REVERSED. 


IN A PETITION TO THE SUPREME COURT OF MISSOURI FOR A WRIT OF HABEAS
CORPUS, THE PETITIONER, CONFINED IN A STATE PENITENTIARY UNDER A 15
YEAR SENTENCE FOR ROBBERY BY MEANS OF A DEADLY WEAPON (A CAPITAL
OFFENSE IN MISSOURI), ALLEGED THAT PRIOR TO HIS CONVICTION HE REQUESTED
THE AID OF COUNSEL BUT THAT NONE WAS APPOINTED; THAT HE DID NOT WAIVE
HIS CONSTITUTIONAL RIGHT TO THE AID OF COUNSEL; THAT HE WAS INCAPABLE
OF MAKING HIS OWN DEFENSE ADEQUATELY AND AS A CONSEQUENCE WAS COMPELLED
TO PLEAD GUILTY.  THE COURT ALLOWED THE PETITIONER TO PROCEED IN FORMA
PAUPERIS BUT DENIED THE PETITION FOR FAILURE TO STATE A CAUSE OF
ACTION.  HELD: 

1.  THE PETITIONER'S RIGHT TO COUNSEL WAS A RIGHT PROTECTED BY THE
FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION.  P. 473. 

2.  WHETHER THE FEDERAL RIGHT OF THE PETITIONER WAS INFRINGED IS FOR
THIS COURT TO DETERMINE.  P. 473. 

3.  THE PETITION HAVING BEEN DENIED WITHOUT REQUIRING THE STATE TO
ANSWER AND WITHOUT GIVING THE PETITIONER AN OPPORTUNITY TO PROVE HIS
ALLEGATIONS, AND THE ALLEGATIONS OF THE PETITION BEING NOT INCONSISTENT
WITH THE RECITALS OF THE ACCOMPANYING CERTIFIED COPY OF THE SENTENCE
AND JUDGMENT, THIS COURT TREATS THE ALLEGATIONS OF THE PETITION AS
TRUE.  P. 474. 

4.  THE PETITION SUFFICIENTLY ALLEGED A DEPRIVATION OF DUE PROCESS OF
LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  POWELL V. ALABAMA, 287
U.S. 45.  P. 474. 

5.  IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, IT WILL BE PRESUMED
THAT WHEN A DEFENDANT REQUESTS COUNSEL HE IS WITHOUT COUNSEL AND
WITHOUT FUNDS TO RETAIN COUNSEL.  P. 474. 

6.  ALTHOUGH A JUDGMENT BASED ON A PLEA OF GUILTY, LIKE OTHER
JUDGMENTS, MAY NOT BE SET ASIDE LIGHTLY ON COLLATERAL ATTACK, A
JUDGMENT BASED ON A PLEA OF GUILTY TO A CAPITAL OFFENSE BY A DEFENDANT
WHO REQUESTED BUT WAS NOT GRANTED COUNSEL, AND WHO WAS INCAPABLE
ADEQUATELY OF MAKING HIS OWN DEFENSE, STANDS ON A DIFFERENT FOOTING. 
P. 474. 

7.  THE NATURE OF THE OFFENSE CHARGED AGAINST THE PETITIONER
EMPHASIZED THE NEED OF COUNSEL.  P. 474. 

8.  THE RIGHT OF THE PETITIONER TO CHALLENGE THE VALIDITY OF THE
JUDGMENT OF CONVICTION ON THE CONSTITUTIONAL GROUND OF DENIAL OF HIS
RIGHT TO COUNSEL CAN NOT BE DEFEATED BY HIS FAILURE TO TAKE AN APPEAL
FROM THAT JUDGMENT.  P. 477. 

9.  SINCE THE STATE GROUNDS HERE ADVANCED TO SUSTAIN THE DENIAL OF
THE PETITION ARE INSUBSTANTIAL, THE DENIAL IS ASSUMED TO HAVE BEEN ON
THE GROUND THAT THE PETITION STATED NO CAUSE OF ACTION BASED ON THE
FEDERAL RIGHT.  P. 478. 

WILLIAMS V. KAISER, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

CERTIORARI, 322 U.S. 725, TO REVIEW AN ORDER DENYING A PETITION FOR A
WRIT OF HABEAS CORPUS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER PLEADED GUILTY TO AN INDICTMENT CHARGING HIM WITH ROBBERY
BY MEANS OF A DEADLY WEAPON.  THE CIRCUIT COURT OF IRON COUNTY,
MISSOURI, FOUND HIM GUILTY AND SENTENCED HIM TO THE STATE PENITENTIARY,
WHERE HE IS NOW CONFINED, FOR A TERM OF FIFTEEN YEARS ON MAY 28, 1940. 
IN APRIL, 1944, HE FILED A PETITION FOR A WRIT OF HABEAS CORPUS IN THE
SUPREME COURT OF MISSOURI.  AFTER RECITING THE FOREGOING FACTS
CONCERNING HIS CONVICTION HE FURTHER ALLEGES IN HIS PETITION: 

"PRIOR TO HIS CONVICTION AND SENTENCE, AS AFORESAID, THE PETITIONER
REQUESTED THE AID OF COUNSEL.  AT THE TIME OF HIS CONVICTION AND
SENTENCE, AS AFORESAID, THE PETITIONER WAS WITHOUT THE AID OF COUNSEL,
THE COURT DID NOT MAKE AN APPOINTMENT OF COUNSEL, NOR DID PETITIONER
WAIVE HIS CONSTITUTIONAL RIGHT TO THE AID OF COUNSEL, AND HE WAS
INCAPABLE ADEQUATELY OF MAKING HIS OWN DEFENSE, IN CONSEQUENCE OF WHICH
HE WAS COMPELLED TO PLEAD GUILTY."  AND HE CONTENDS THAT HE WAS
DEPRIVED OF COUNSEL CONTRARY TO THE REQUIREMENTS OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  THE SUPREME COURT OF MISSOURI
ALLOWED PETITIONER TO PROCEED IN FORMA PAUPERIS BUT DENIED THE PETITION
FOR THE REASON THAT IT "FAILS TO STATE A CAUSE OF ACTION."  THE CASE IS
HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF
THE SUBSTANTIAL NATURE OF THE CONSTITUTIONAL QUESTION WHICH IS RAISED. 

MISSOURI HAS A STATUTE WHICH REQUIRES A COURT ON REQUEST TO ASSIGN
COUNSEL TO A PERSON UNABLE TO EMPLOY ONE AND WHO IS CHARGED WITH A
FELONY.  REV. STAT. 1939, SEC. 4003.  THE MISSOURI SUPREME COURT DID
NOT INDICATE THE REASONS FOR ITS DENIAL OF THE PETITION BEYOND THE
STATEMENT THAT THE PETITION FAILED TO STATE A CAUSE OF ACTION. 
WHATEVER THE GROUNDS OF THAT DECISION IT IS BINDING ON US INSOFAR AS
STATE LAW IS CONCERNED.  SMITH V. O'GRADY, 312 U.S. 329.  BUT THE RIGHT
TO COUNSEL IN CASES OF THIS TYPE IS A RIGHT PROTECTED BY THE FOURTEENTH
AMENDMENT OF THE FEDERAL CONSTITUTION.  THE QUESTION WHETHER THAT
FEDERAL RIGHT HAS BEEN INFRINGED IS NOT FORECLOSED HERE, EVEN THOUGH
THE ACTION OF THE STATE COURT WAS ON THE GROUND THAT ITS STATUTE
REQUIRING THE APPOINTMENT OF COUNSEL WAS NOT VIOLATED.  POWELL V.
ALABAMA, 287 U.S. 45, 59-60.  AND MISSOURI HAS NOT SUGGESTED IN THE
ARGUMENT BEFORE THIS COURT THAT IT PROVIDES A REMEDY OTHER THAN HABEAS
CORPUS FOR RELEASE FROM A CONFINEMENT UNDER A JUDGMENT OF CONVICTION
OBTAINED AS A RESULT OF AN UNCONSTITUTIONAL PROCEDURE.  NEITHER IN THE
BRIEFS NOR IN ORAL ARGUMENT DID MISSOURI SUGGEST THAT ITS HABEAS CORPUS
PROCEDURE (SEE REV. STAT. 1939, SECS. 1590, 1621, 1623) IS NOT
AVAILABLE IN THIS SITUATION.  FN1 

THE PETITION FOR HABEAS CORPUS WAS DENIED WITHOUT REQUIRING THE STATE
TO ANSWER OR WITHOUT GIVING PETITIONER AN OPPORTUNITY TO PROVE HIS
ALLEGATIONS.  AND THE ALLEGATIONS CONTAINED IN THE PETITION ARE NOT
INCONSISTENT WITH THE RECITALS OF THE CERTIFIED COPY OF THE SENTENCE
AND JUDGMENT WHICH ACCOMPANIED THE PETITION AND UNDER WHICH PETITIONER
IS CONFINED.  HENCE WE MUST ASSUME THAT THE ALLEGATIONS OF THE PETITION
ARE TRUE.  SMITH V. O'GRADY, SUPRA.  READ IN THAT LIGHT WE THINK THE
PETITION MAKES A PRIMA FACIE SHOWING OF DENIAL OF THE CONSTITUTIONAL
RIGHT.  THE MISSOURI SUPREME COURT HAS RULED THAT WHEN A DEFENDANT
REQUESTS COUNSEL IT WILL BE "PRESUMED," IN ABSENCE OF EVIDENCE TO THE
CONTRARY (STATE V. STEELMAN, 318 MO. 628, 631, 300 S.W. 743), THAT HE
WAS "WITHOUT COUNSEL AND THAT HE LACKED FUNDS TO EMPLOY THEM."  STATE
V. WILLIAMS, 320 MO. 296, 306, 6 S.W.2D 915.  WE INDULGE THE SAME
PRESUMPTION.  CERTAINLY IT MAY BE REASONABLY INFERRED FROM THAT REQUEST
AND FROM THE FURTHER ALLEGATION THAT AS A RESULT OF THE COURT'S FAILURE
TO APPOINT COUNSEL PETITIONER WAS "COMPELLED TO PLEAD GUILTY," THAT HE
WAS UNABLE TO EMPLOY COUNSEL TO PRESENT HIS DEFENSE BECAUSE HE WAS
WITHOUT FUNDS.  LIKE OTHER JUDGMENTS, A JUDGMENT BASED ON A PLEA OF
GUILTY IS NOT OF COURSE TO BE LIGHTLY IMPEACHED IN COLLATERAL
PROCEEDINGS.  SEE JOHNSON V. ZERBST, 304 U.S. 458, 468-469.  BUT A PLEA
OF GUILTY TO A CAPITAL OFFENSE MADE BY ONE WHO ASKED FOR COUNSEL BUT
COULD NOT OBTAIN ONE AND WHO WAS "INCAPABLE ADEQUATELY OF MAKING HIS
OWN DEFENSE" STANDS ON A DIFFERENT FOOTING.  ROBBERY IN THE FIRST
DEGREE (REV. STAT. 1939, SEC. 4450) BY MEANS OF A DEADLY WEAPON IS A
CAPITAL OFFENSE IN MISSOURI.  REV. STAT. 1939, SEC. 4453.  THE LAW OF
MISSOURI HAS IMPORTANT DISTINCTIONS BETWEEN ROBBERY IN THE FIRST
DEGREE, ROBBERY IN THE SECOND DEGREE, GRAND LARCENY, AND PETIT
LARCENY.  FN2  THESE INVOLVE TECHNICAL REQUIREMENTS OF THE INDICTMENT
OR INFORMATION, THE KIND OF EVIDENCE REQUIRED FOR CONVICTION,  FN3  THE
INSTRUCTIONS NECESSARY TO DEFINE THE SEVERAL ELEMENTS OF THE CRIME,
FN4  AND THE VARIOUS DEFENSES WHICH ARE AVAILABLE.  THESE ARE A CLOSED
BOOK TO THE AVERAGE LAYMAN.  THESE CONSIDERATIONS UNDERSCORE WHAT WAS
SAID IN POWELL V. ALABAMA, SUPRA, P. 69:  "EVEN THE INTELLIGENT AND
EDUCATED LAYMAN HAS SMALL AND SOMETIMES NO SKILL IN THE SCIENCE OF
LAW.  IF CHARGED WITH CRIME, HE IS INCAPABLE, GENERALLY, OF DETERMINING
FOR HIMSELF WHETHER THE INDICTMENT IS GOOD OR BAD.  HE IS UNFAMILIAR
WITH THE RULES OF EVIDENCE.  LEFT WITHOUT THE AID OF COUNSEL HE MAY BE
PUT ON TRIAL WITHOUT A PROPER CHARGE, AND CONVICTED UPON INCOMPETENT
EVIDENCE, OR EVIDENCE IRRELEVANT TO THE ISSUE OR OTHERWISE
INADMISSIBLE.  HE LACKS BOTH THE SKILL AND KNOWLEDGE ADEQUATELY TO
PREPARE HIS DEFENSE, EVEN THOUGH HE HAVE A PERFECT ONE.  HE REQUIRES
THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE PROCEEDINGS AGAINST
HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE FACES THE DANGER OF
CONVICTION BECAUSE HE DOES NOT KNOW HOW TO ESTABLISH HIS INNOCENCE.  IF
THAT BE TRUE OF MEN OF INTELLIGENCE, HOW MUCH MORE TRUE IS IT OF THE
IGNORANT AND ILLITERATE, OR THOSE OF FEEBLE INTELLECT."  THOSE
OBSERVATIONS ARE AS PERTINENT IN CONNECTION WITH THE ACCUSED'S PLEA AS
THEY ARE IN THE CONDUCT OF A TRIAL.  THE DECISION TO PLEAD GUILTY IS A
DECISION TO ALLOW A JUDGMENT OF CONVICTION TO BE ENTERED WITHOUT A
HEARING - A DECISION WHICH IS IRREVOCABLE AND WHICH FORECLOSES ANY
POSSIBILITY OF ESTABLISHING INNOCENCE.  IF WE ASSUME THAT PETITIONER
COMMITTED A CRIME, WE CANNOT KNOW THE DEGREE OF PREJUDICE WHICH THE
DENIAL OF COUNSEL CAUSED.  SEE GLASSER V. UNITED STATES, 315 U.S. 60,
75-76.  ONLY COUNSEL COULD DISCERN FROM THE FACTS WHETHER A PLEA OF NOT
GUILTY TO THE OFFENSE CHARGED OR A PLEA OF GUILTY TO A LESSER OFFENSE
WOULD BE APPROPRIATE.  FN5  A LAYMAN IS USUALLY NO MATCH FOR THE
SKILLED PROSECUTOR WHOM HE CONFRONTS IN THE COURT ROOM.  HE NEEDS THE
AID OF COUNSEL LEST HE BE THE VICTIM OF OVERZEALOUS PROSECUTORS, OF THE
LAW'S COMPLEXITY, OR OF HIS OWN IGNORANCE OR BEWILDERMENT. 

THESE ARE REASONS WHY THE RIGHT TO COUNSEL IS "FUNDAMENTAL."  POWELL
V. ALABAMA, SUPRA, P. 70; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233,
243-244; AVERY V. ALABAMA, 308 U.S. 444, 447.  THEY INDICATE THE
PROTECTION WHICH THE INDIVIDUAL NEEDS WHEN CHARGED WITH CRIME.  PROMPT
AND EXPEDITIOUS DETECTION AND PUNISHMENT OF CRIME ARE NECESSARY FOR THE
PROTECTION OF SOCIETY.  BUT THAT MAY NOT BE DONE AT THE EXPENSE OF THE
CIVIL RIGHTS OF THE CITIZEN.  LAW ENFORCEMENT NEED NOT BE INEFFICIENT
WHEN ACCOMMODATED TO THE CONSTITUTIONAL GUARANTEES OF THE INDIVIDUAL. 

POWELL V. ALABAMA, SUPRA, P. 71, HELD THAT AT LEAST IN CAPITAL
OFFENSES "WHERE THE DEFENDANT IS UNABLE TO EMPLOY COUNSEL, AND IS
INCAPABLE ADEQUATELY OF MAKING HIS OWN DEFENSE BECAUSE OF IGNORANCE,
FEEBLE MINDEDNESS, ILLITERACY, OR THE LIKE, IT IS THE DUTY OF THE
COURT, WHETHER REQUESTED OR NOT, TO ASSIGN COUNSEL FOR HIM AS A
NECESSARY REQUISITE OF DUE PROCESS OF LAW."  IT FOLLOWS FROM OUR
CONSTRUCTION OF THIS PETITION THAT IF THE ALLEGATIONS ARE TAKEN AS
TRUE, PETITIONER WAS DENIED DUE PROCESS OF LAW.  IT MAY WELL BE THAT
THESE ALLEGATIONS WILL TURN OUT TO BE SPECIOUS AND UNFOUNDED.  BUT THEY
ARE SUFFICIENT UNDER THE RULE OF POWELL V. ALABAMA TO ESTABLISH A
DEPRIVATION OF DUE PROCESS OF LAW IF THEIR VERITY IS DETERMINED.  SEE
COCHRAN V. KANSAS, 316 U.S. 255.  CF. WALKER V. JOHNSTON, 312 U.S.
275. 

AS WE HAVE SAID, MISSOURI DOES NOT CLAIM THAT HABEAS CORPUS IS NOT
AVAILABLE IN THIS TYPE OF CASE OR THAT UNDER MISSOURI LAW THERE IS SOME
PROCEDURE OTHER THAN HABEAS CORPUS AVAILABLE TO PETITIONER IN WHICH HE
MAY CHALLENGE THE JUDGMENT OF CONVICTION ON CONSTITUTIONAL GROUNDS. 
MISSOURI, HOWEVER, DOES CONTEND THAT THE DENIAL OF COUNSEL COULD HAVE
BEEN CHALLENGED BY PETITIONER BY AN APPEAL, THAT NO APPEAL WAS TAKEN,
AND THAT NO EXTRAORDINARY CIRCUMSTANCES ARE SHOWN WHICH EXCUSE THAT
FAILURE.  HERETOFORE WE HAVE NOT CONSIDERED A FAILURE TO APPEAL AN
ADEQUATE DEFENSE TO HABEAS CORPUS IN THIS TYPE OF CASE.  SMITH V.
O'GRADY, SUPRA. UNDER THESE CIRCUMSTANCES THE FAILURE TO APPEAL ONLY
EMPHASIZES THE NEED OF COUNSEL.  IF AN APPEAL WERE MADE SUCH A
REQUIREMENT, THE DENIAL OF COUNSEL WOULD IN AND OF ITSELF DEFEAT THE
VERY RIGHT WHICH THE CONSTITUTION SOUGHT TO PROTECT. 

IT IS SUGGESTED, MOREOVER, THAT FOR ALL WE KNOW THE DENIAL OF THE
PETITION BY THE SUPREME COURT OF MISSOURI RESTED ON ADEQUATE STATE
GROUNDS.  IT IS A WELL ESTABLISHED PRINCIPLE OF THIS COURT THAT BEFORE
WE WILL REVIEW A DECISION OF A STATE COURT IT MUST AFFIRMATIVELY APPEAR
FROM THE RECORD THAT THE FEDERAL QUESTION WAS PRESENTED TO THE HIGHEST
COURT OF THE STATE HAVING JURISDICTION AND THAT ITS DECISION OF THE
FEDERAL QUESTION WAS NECESSARY TO ITS DETERMINATION OF THE CAUSE. 
HONEYMAN V. HANAN, 300 U.S. 14, 18; LYNCH V. NEW YORK, 293 U.S. 52. 
AND WHERE THE DECISION OF THE STATE COURT MIGHT HAVE BEEN EITHER ON A
STATE GROUND OR ON A FEDERAL GROUND AND THE STATE GROUND IS SUFFICIENT
TO SUSTAIN THE JUDGMENT, THE COURT WILL NOT UNDERTAKE TO REVIEW IT.
KLINGER V. MISSOURI, 13 WALL.  257, 263; WOOD MOWING & REAPING MACHINE
CO. V. SKINNER, 139 U.S. 293, 297; ALLEN V. ARGUIMBAU, 198 U.S. 149,
154-155; LYNCH V. NEW YORK, SUPRA.  WE ADHERE TO THOSE DECISIONS.  BUT
IT IS LIKEWISE WELL SETTLED THAT IF THE INDEPENDENT GROUND WAS NOT A
SUBSTANTIAL OR SUFFICIENT ONE, "IT WILL BE PRESUMED THAT THE STATE
COURT BASED ITS JUDGMENT ON THE LAW RAISING THE FEDERAL QUESTION, AND
THIS COURT WILL THEN TAKE JURISDICTION."  KLINGER V. MISSOURI, SUPRA,
P. 263; JOHNSON V. RISK, 137 U.S. 300, 307; LAWRENCE V. STATE TAX
COMMISSION, 286 U.S. 276, 282-283.  THUS IN MAGUIRE V. TYLER, 8 WALL. 
650, AND IN NEILSON V. LAGOW, 12 HOW.  98, 110, IT WAS CONTENDED THAT
THE JUDGMENTS RESTED ON ADEQUATE STATE GROUNDS.  IN NEITHER WAS THERE
AN OPINION OF THE STATE COURT.  THE COURT EXAMINED THE RECORD, FOUND
THE STATE GROUNDS NOT SUBSTANTIAL OR SUFFICIENT, AND REVERSED THE
JUDGMENTS ON THE FEDERAL QUESTION N6.  WE THINK THE PRINCIPLE OF THOSE
CASES IS APPLICABLE HERE.  THE PETITION ESTABLISHES ON ITS FACE THE
DEPRIVATION OF A FEDERAL RIGHT.  THE DENIAL OF THE PETITION ON THE
GROUNDS THAT IT FAILS TO STATE A CAUSE OF ACTION STRONGLY SUGGESTS THAT
IT WAS DENIED BECAUSE THERE WAS NO CAUSE OF ACTION BASED ON THE FEDERAL
RIGHT.  AND WHEN WE SEARCH FOR AN INDEPENDENT STATE GROUND TO SUPPORT
THE DENIAL, WE FIND NONE.  THE ATTORNEY GENERAL OF MISSOURI ONLY GOES
SO FAR AS TO SAY THAT THE PETITION DID NOT STATE FACTS SUFFICIENT TO
JUSTIFY THE APPOINTMENT OF COUNSEL UNDER THE MISSOURI STATUTE.  BUT AS
WE HAVE SEEN, THE ALLEGATIONS IN THE PETITION SEEM SUFFICIENT UNDER THE
RULE LAID DOWN BY THE SUPREME COURT OF MISSOURI IN STATE V. WILLIAMS,
SUPRA.  AND MISSOURI SUGGESTS NO OTHER STATE GROUND WHICH MIGHT BE THE
BASIS OF THE DECISION.  FN7  THAT IS TO SAY, THE ONLY STATE GROUNDS
WHICH HAVE BEEN ADVANCED IN SUPPORT OF THE DECISION BELOW APPEAR TO BE
INSUBSTANTIAL.  WE CAN ONLY ASSUME THEREFORE THAT THE DENIAL BY THE
SUPREME COURT OF MISSOURI WAS FOR THE REASON THAT THE PETITION STATED
NO CAUSE OF ACTION BASED ON THE FEDERAL RIGHT.  THAT SEEMS TO US TO BE
THE FAIR INTENDMENT OF THE LANGUAGE WHICH IT USED IF WE PUT TO ONE
SIDE, AS WE MUST, THE INSUBSTANTIAL STATE GROUNDS WHICH HAVE BEEN
ADVANCED IN EXPLANATION OF THE DENIAL.  IF PERCHANCE THE SUPREME COURT
OF MISSOURI MEANT THAT SOME REASON OF STATE LAW PRECLUDES A DECISION OF
THE FEDERAL QUESTION, THAT QUESTION IS NOT FORECLOSED BY THIS
DECISION.  CF. STATE TAX COMMISSION V. VAN COTT, 306 U.S. 511;
MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551.  BUT ON THE PRESENT STATE
OF THE RECORD BEFORE US, WE DO NOT SEE WHAT MORE PETITIONER NEED DO TO
ESTABLISH THE FEDERAL RIGHT ON WHICH HIS PETITION IS BASED.  REVERSED. 

FN1  IT IS AVAILABLE TO CHALLENGE THE CONSTITUTIONALITY OF THE
STATUTE ON WHICH THE JUDGMENT OF CONVICTION RESTS.  EX PARTE SMITH, 135
MO. 223, 36 S.W. 628; EX PARTE TAFT V. SHAW, 284 MO. 531, 538-539, 225
S.W. 457; EX PARTE MCKEAN, 338 MO. 597, 600, 92 S.W.2D 141. 

FN2  THUS ONE INDICTED FOR ROBBERY IN THE FIRST DEGREE CANNOT BE
CONVICTED OF ROBBERY IN THE SECOND DEGREE BUT MAY BE CONVICTED OF
LARCENY.  STATE V. JENKINS, 36 MO. 372; STATE V. DAVIDSON, 38 MO. 374;
STATE V. BRANNON, 55 MO. 63.    FN3  SEE STATE V. WHITE, 326 MO. 1000,
34 S.W.2D 79. 

FN4  SEE STATE V. BROWN, 104 MO. 365, 16 S.W. 406; STATE V. WOODWARD,
131 MO. 369, 33 S.W. 14; STATE V. MCLAIN, 159 MO. 340, 60 S.W. 736. 

FN5  "ROBBERY IN THE FIRST DEGREE WITHOUT THE USE OF A DANGEROUS AND
DEADLY WEAPON IS INCLUDED IN THE CHARGE OF ROBBERY BY MEANS OF SUCH
WEAPON.  LARCENY IS ALSO SO INCLUDED, AND WHERE THE CHARGE IS ROBBERY
AND THERE IS EVIDENCE OF A LARCENOUS TAKING OF PROPERTY BUT THE ELEMENT
OF FORCE SUCH AS TO CONSTITUTE THE OFFENSE OF ROBBERY IS WANTING THERE
SHOULD BE AN INSTRUCTION SUBMITTING LARCENY."  STATE V. CRAFT, 338 MO.
831, 843, 92 S.W.2D 626.  AND SEE STATE V. WEINHARDT, 253 MO. 629, 161
S.W. 1151. 

FN6  IN THE FOLLOWING CASES THE COURT WITHOUT BENEFIT OF AN OPINION
OF THE STATE COURT EXAMINED THE PLEADINGS, FOUND SUBSTANTIAL STATE
GROUNDS ON WHICH THE JUDGMENT MIGHT HAVE RESTED, AND DISMISSED THE
WRIT.  JOHNSON V. RISK, SUPRA; ALLEN V. ARGUIMBAU, SUPRA; BACHTEL V.
WILSON, 204 U.S. 36; ADAMS V. RUSSELL, 229 U.S. 353; CUYAHOGA RIVER
POWER CO. V. NORTHERN REALTY CO., 244 U.S. 300, 303; LYNCH V. NEW YORK,
SUPRA; WOOLSEY V. BEST, 299 U.S. 1; MCGOLDRICK V. GULF OIL CORP., 309
U.S. 2. 

FN7  IT IS STATED THAT THE PETITION DOES NOT ALLEGE FACTS WHICH SHOW
THAT PETITIONER WAS DENIED A FAIR TRIAL, THAT HE WAS IGNORANT, THAT HE
WAS INNOCENT, OR THAT THE COURT WAS PREJUDICED.  BUT IT IS NOT APPARENT
HOW THE ADDITION OF ANY SUCH ALLEGATIONS TO THE PETITION WOULD BE
RELEVANT TO PETITIONER'S CAUSE OF ACTION BASED ON THE CONSTITUTIONAL
RIGHT TO COUNSEL.  WE ARE NOT REFERRED TO ANY MISSOURI LAW WHICH WOULD
MAKE THEM RELEVANT. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

AT THE REQUEST OF ONE CHARGED WITH A FELONY AND UNABLE TO EMPLOY
COUNSEL, MISSOURI REQUIRES ITS COURTS TO ASSIGN COUNSEL.  IN STATE V.
WILLIAMS, 320 MO. 296, 6 S.W.2D 915, A DEFENDANT ON TRIAL FOR A CAPITAL
OFFENSE REQUESTED THE COURT TO ASSIGN COUNSEL, AND THE COURT
ACCORDINGLY APPOINTED TWO LAWYERS FOR HIS DEFENSE.  AFTER A PLEA OF
GUILTY AND THE IMPOSITION OF A DEATH SENTENCE, AN APPEAL WAS TAKEN FROM
A DENIAL OF A MOTION IN ARREST OF JUDGMENT ON THE GROUND THAT THE TRIAL
COURT VIOLATED THE MISSOURI STATUTE IN THAT THE RECORD DID NOT SHOW
THAT THE JUDGE HAD ASCERTAINED THE INABILITY OF THE ACCUSED TO EMPLOY
COUNSEL BEFORE APPOINTING THEM.  THE MISSOURI SUPREME COURT HELD THAT
THE ABSENCE OF SUCH A SPECIFIC FINDING DID NOT CONSTITUTE A VIOLATION
OF THE MISSOURI STATUTES.  "THE RECORD SHOWS THAT IT WAS UPON
DEFENDANT'S REQUEST THAT THE COURT ASSIGNED HIM COUNSEL.  HAVING
REQUESTED THE COURT TO ASSIGN COUNSEL, IT WILL THEN BE PRESUMED THAT
DEFENDANT WAS WITHOUT COUNSEL AND THAT HE LACKED FUNDS TO EMPLOY
THEM."  320 MO. AT 306.  THE COURT THUS REJECTED THE FRIVOLOUS CLAIM
THAT BY GIVING THE ACCUSED WHAT HE ASKED FOR, COUNSEL NOT OF HIS CHOICE
HAD BEEN FORCED ON HIM.  THAT DECISION CAN HARDLY SERVE AS A
SPRINGBOARD FOR CONCLUDING IN THIS CASE THAT THE SUPREME COURT OF
MISSOURI VIOLATED THE CONSTITUTION OF THE UNITED STATES IN FINDING THAT
THE RECORD DID NOT SHOW THAT THE TRIAL COURT, IN DENYING THE PRESENT
DEFENDANT'S REQUEST FOR THE ASSIGNMENT OF COUNSEL, DENIED HIM RIGHTS
UNDER THE LAW OF MISSOURI AS WELL AS THE UNITED STATES CONSTITUTION. 
TO BE SURE, THE MISSOURI SUPREME COURT DID NOT WRITE AN OPINION IN
SUPPORT OF ITS CONCLUSION THAT THE PETITIONER'S WRIT FOR HABEAS CORPUS
"FAILS TO STATE A CAUSE OF ACTION."  THERE IS NOTHING SIGNIFICANT ABOUT
THAT, AND IT DOES NOT AFFECT THE BASIS OR SCOPE OF THIS COURT'S REVIEW
OF STATE COURT DECISIONS.  DURING ITS 1942 JUDICIAL YEAR THE SUPREME
COURT OF MISSOURI DISPOSED OF 300 CASES BY OPINION AND 217 CASES
WITHOUT OPINION; DURING ITS 1942 JUDICIAL YEAR THIS COURT DISPOSED OF
218 CASES BY OPINION AND 146 CASES WITHOUT OPINION (APART FROM
DISPOSITIONS OF PETITIONS FOR CERTIORARI).  IF THE DETERMINATION BY THE
MISSOURI COURT CAN REASONABLY BE JUSTIFIED ON FAILURE TO COMPLY WITH A
REQUIREMENT OF MISSOURI LAW, THEN IT MUST BE SO JUSTIFIED.  AND THE
RECORD HERE PLAINLY ALLOWS THE INFERENCE THAT THE PETITIONER DID NOT
MEET THE PROCEDURAL REQUIREMENTS OF MISSOURI LAW FOR RELIEF BY HABEAS
CORPUS.  IF A DECISION OF A STATE COURT CAN REST ON A STATE GROUND, IT
IS OUR DUTY TO CONCLUDE THAT IT DOES SO REST; IT IS OUR DUTY NOT TO
ASSUME THAT THE STATE COURT REJECTED A CLAIM UNDER THE UNITED STATES
CONSTITUTION. 

FROM THE BEGINNING, SUCH HAS BEEN THE PRINCIPLE GOVERNING OUR REVIEW
OF STATE COURT DECISIONS.  IN CASES COMING HERE FROM THE STATE COURTS,
THIS COURT HAS NO POWER TO PASS ON QUESTIONS OF STATE LAW; IT CAN
REVIEW A STATE COURT DECISION ONLY INSOFAR AS THAT RAISES A QUESTION OF
FEDERAL LAW; AND IT CAN ONLY THEN PASS ON THE FEDERAL QUESTION IF A
DECISION ON FEDERAL LAW WAS NECESSARY FOR THE JUDGMENT RENDERED BY THE
STATE COURT.  THIS HISTORIC DISTRIBUTION OF JUDICIAL AUTHORITY AS
BETWEEN THE STATE COURTS AND THIS COURT WAS CONFIRMED AND REINFORCED
DURING THE RECONSTRUCTION PERIOD WHEN THE INFLUENCES TOWARD EXPANSION
OF FEDERAL JURISDICTION WERE AT FLOODTIDE.  MURDOCK V. MEMPHIS, 20
WALL.  590.  FN1 

THESE SOUND LIKE DRY RULES OF TECHNICAL JURISDICTION.  IN FACT THEY
EXPRESS AN IMPORTANT PHASE OF DUE REGARD FOR OUR FEDERAL CONSTITUTIONAL
SYSTEM.  STATE COURTS ARE NO LESS UNDER DUTY TO OBSERVE THE UNITED
STATES CONSTITUTION THAN IS THIS COURT.  TO BE SURE, AUTHORITY IS
VESTED IN THIS COURT TO SEE TO IT THAT THAT DUTY IS OBSERVED.  BUT TO
ASSUME DISOBEDIENCE INSTEAD OF OBEDIENCE TO THE LAW OF THE LAND BY THE
HIGHEST COURTS OF THE STATES IS TO ENGENDER FRICTION BETWEEN THE
FEDERAL AND STATE JUDICIAL SYSTEMS, TO WEAKEN THE AUTHORITY OF THE
STATE COURTS AND THE ADMINISTRATION OF STATE LAWS BY ENCOURAGING
UNMERITORIOUS RESORTS TO THIS COURT, AND WASTEFULLY TO SWELL THE
DOCKETS OF THIS COURT. 

THIS CASE GIVES POINT TO THE IMPORTANCE OF ADHERING TO THE PRINCIPLES
THAT GOVERN OUR REVIEW OF STATE DECISIONS.  NOTHING IS A MORE
FUNDAMENTAL CHARACTERISTIC OF A CIVILIZED SOCIETY THAN THOSE SECURITIES
WHICH SAFEGUARD A FAIR TRIAL FOR ONE ACCUSED OF CRIME.  THOSE
ASSURANCES WERE WRITTEN INTO THE FEDERAL CONSTITUTION EVEN AGAINST
STATE ACTION BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  A
CENTRAL SAFEGUARD IS THE OPPORTUNITY FOR AN ACCUSED TO HAVE ADEQUATE
FACILITIES FOR PRESENTING HIS DEFENSE.  BUT A FULL HALF CENTURY BEFORE
THE UNITED STATES CONSTITUTION MADE THIS REQUIREMENT OF THE STATES,
MISSOURI, WHILE YET A TERRITORY, PROVIDED FOR THE ASSISTANCE OF COUNSEL
FOR ACCUSED IN NEED.  DIGEST OF THE LAWS OF MISSOURI TERRITORY, 1818,
CRIMES AND MISDEMEANORS SEC. 35.  THERE IS NOTHING TO WARRANT THE
ASSUMPTION THAT THE SUPREME COURT OF MISSOURI WAS UNMINDFUL OF THE
EXACTIONS OF ITS OWN HISTORIC LAW OR OF THE EXTENT TO WHICH THAT IS NOW
EMBEDDED IN THE DUE PROCESS CLAUSE.  ON THE CONTRARY, EVERY ASSUMPTION
MUST BE INDULGED THAT THAT COURT WAS MINDFUL OF THE RIGHT WHICH MAY BE
CLAIMED BY AN INDIGENT ACCUSED TO HAVE A LAWYER'S AID FOR HIS DEFENSE. 
BUT IT MAY ALSO HAVE BEEN MINDFUL OF THE REQUIREMENT OF HER LAW THAT A
TRIAL JUDGE BE REASONABLY CONVINCED THAT AN ACCUSED IS IN NEED OF
COUNSEL. 

OF COURSE THIS COURT WILL NOT WITHHOLD ITS REVIEWING POWER OVER A
DECISION OF A STATE COURT BY PRESUMING THAT THE STATE COURT FOUNDED ITS
DECISION ON A WHOLLY UNTENABLE BASIS OF LOCAL LAW.  SEE, E.G., NEILSON
V. LAGOW, 12 HOW.  98, 109-111.  BUT NOTHING IN THE RECORD BEFORE US
PRECLUDES THE ASSUMPTION THAT THE MISSOURI SUPREME COURT FOUND A LOCAL
INADEQUACY IN THE PETITION FOR A WRIT OF HABEAS CORPUS.  IF THE
MISSOURI SUPREME COURT HAD IN FACT REFUSED TO GRANT THE WRIT OF HABEAS
CORPUS BECAUSE IT CONCLUDED THAT THERE WAS NOT A SUFFICIENT ALLEGATION
BY PETITIONER THAT HE HAD NEED FOR COUNSEL, CERTAINLY THIS COURT WOULD
NOT REJECT THAT AS AN INADEQUATE STATE GROUND.  AND IF THAT WOULD HAVE
FURNISHED AN ADEQUATE STATE GROUND, WE MUST ASSUME THAT IT DID, INSTEAD
OF ATTRIBUTING TO THE SUPREME COURT OF MISSOURI A FLAGRANT VIOLATION OF
THE CONSTITUTION.  IF THE MISSOURI SUPREME COURT ENFORCES ITS
REQUIREMENT THAT AN ACCUSED MAKE MANIFEST HIS NEED FOR APPOINTED
COUNSEL AND IF MISSOURI ENFORCES THIS REQUIREMENT EVEN WITH PROCEDURAL
STRICTNESS AGAINST THOSE CONVICTED OF FELONIES YEARS AFTER THEIR
SENTENCE, IT IS NOT FOR US TO BE HYPERCRITICAL IN DENYING TO THE
HIGHEST TRIBUNAL OF A STATE WHAT IT MAY CONCEIVE TO BE ITS DUTY TO SEE
TO IT THAT THE GREAT WRIT OF HABEAS CORPUS IS NOT ABUSED  FN2  AND THAT
THE ADMINISTRATION OF CRIMINAL JUSTICE IS NOT NEEDLESSLY WEAKENED BY
ASTUTE DEVICES.  WHILE THE PETITION IN THIS CASE WAS SIGNED BY WILLIAMS
ALONE, IT BEARS EVERY EVIDENCE OF HAVING BEEN DRAWN BY ONE AWARE OF THE
RELEVANT LEGAL ISSUES AND SKILLED IN LEGAL DRAFTING. 

IF, PERCHANCE, WE WERE TO INTERPRET ERRONEOUSLY THE DECISION OF THE
SUPREME COURT OF MISSOURI IN FINDING THAT THE PRESENT WRIT FAILED TO
STATE A CAUSE OF ACTION BECAUSE IT WAS WANTING IN REQUIREMENTS OF
MISSOURI LAW, NO REAL HARM WILL HAVE BEEN DONE.  BY PROPER APPLICATION
TO THE STATE COURT, THE AMBIGUITY OF THE PRESENT RECORD MAY BE REMOVED
BY SHOWING, IF INDEED SUCH BE THE FACT, THAT THE MISSOURI SUPREME COURT
NECESSARILY REJECTED A FEDERAL CLAIM HERE REVIEWABLE.  SEE WHITNEY V.
CALIFORNIA, 269 U.S. 530; 274 U.S. 357, 360-362; LYNCH V. NEW YORK, 293
U.S. 52; HONEYMAN V. HANAN, 300 U.S. 14.  OR, ANOTHER PETITION FOR A
WRIT OF HABEAS CORPUS MAKING THE NECESSARY ALLEGATIONS WOULD QUICKLY
REVEAL WHETHER THE SUPREME COURT OF MISSOURI FLAGRANTLY DISREGARDED A
LAW OF MISSOURI OLDER THAN THE STATE ITSELF, LET ALONE A RIGHT
SANCTIONED BY THE CONSTITUTION OF THE UNITED STATES.  PETITIONER IS NOW
REPRESENTED BY ABLE AND DEVOTED COUNSEL WHO WOULD QUICKLY ENOUGH BRING
TO LIGHT ANY SUCH DISREGARD.  CERTAINLY WE OUGHT NOT TO ATTRIBUTE
ILLEGALITY TO THE SUPREME COURT OF MISSOURI WHEN THE ASSUMPTION OF
OBEDIENCE TO ITS OWN TRADITIONS LIES SO READILY ON THE SURFACE OF THIS
RECORD. 

THE PETITION SHOULD BE DISMISSED FOR WANT OF JURISDICTION. 

FN1  "THE RULES WHICH GOVERN THE ACTION OF THIS COURT IN CASES OF
THIS SORT ARE WELL SETTLED.  WHERE IT APPEARS BY THE RECORD THAT THE
JUDGMENT OF THE STATE COURT MIGHT HAVE BEEN BASED EITHER UPON A LAW
WHICH WOULD RAISE A QUESTION OF REPUGNANCY TO THE CONSTITUTION, LAWS,
OR TREATIES OF THE UNITED STATES, OR UPON SOME OTHER INDEPENDENT
GROUND; AND IT APPEARS THAT THE COURT DID, IN FACT, BASE ITS JUDGMENT
ON SUCH INDEPENDENT GROUND, AND NOT ON THE LAW RAISING THE FEDERAL
QUESTION, THIS COURT WILL NOT TAKE JURISDICTION OF THE CASE, EVEN
THOUGH IT MIGHT THINK THE POSITION OF THE STATE COURT AN UNSOUND ONE. 
BUT WHERE IT DOES NOT APPEAR ON WHICH OF THE TWO GROUNDS THE JUDGMENT
WAS BASED, THEN, IF THE INDEPENDENT GROUND ON WHICH IT MIGHT HAVE BEEN
BASED WAS A GOOD AND VALID ONE, SUFFICIENT OF ITSELF TO SUSTAIN THE
JUDGMENT, THIS COURT WILL NOT ASSUME JURISDICTION OF THE CASE; BUT IF
SUCH INDEPENDENT GROUND WAS NOT A GOOD AND VALID ONE, IT WILL BE
PRESUMED THAT THE STATE COURT BASED ITS JUDGMENT ON THE LAW RAISING THE
FEDERAL QUESTION, AND THIS COURT WILL THEN TAKE JURISDICTION."  KLINGER
V. MISSOURI, 13 WALL.  257, 263. 

THESE SETTLED PRINCIPLES WERE VERY RECENTLY AGAIN SUMMARIZED IN A PER
CURIAM OPINION IN SOUTHWESTERN BELL TEL. CO. V. OKLAHOMA, 303 U.S. 206,
212-213: 

"WE HAVE REPEATEDLY HELD THAT IT IS ESSENTIAL TO THE JURISDICTION OF
THIS COURT IN REVIEWING A DECISION OF A COURT OF A STATE THAT IT MUST
APPEAR AFFIRMATIVELY FROM THE RECORD, NOT ONLY THAT A FEDERAL QUESTION
WAS PRESENTED FOR DECISION TO THE HIGHEST COURT OF THE STATE HAVING
JURISDICTION BUT THAT ITS DECISION OF THE FEDERAL QUESTION WAS
NECESSARY TO THE DETERMINATION OF THE CAUSE; THAT THE FEDERAL QUESTION
WAS ACTUALLY DECIDED OR THAT THE JUDGMENT AS RENDERED COULD NOT HAVE
BEEN GIVEN WITHOUT DECIDING IT.  DE SAUSSURE V. GAILLARD, 127 U.S. 216,
234; JOHNSON V. RISK, 137 U.S. 300, 306, 307; WOOD MOWING & REAPING
MACHINE CO. V. SKINNER, 139 U.S. 293, 295, 297; WHITNEY V. CALIFORNIA,
274 U.S. 357, 360, 361; LYNCH V. NEW YORK, 293 U.S. 52, 54." 

FN2  "WE ARE DEALING WITH A WRIT ANTECEDENT TO STATUTE, AND THROWING
ITS ROOT DEEP INTO THE GENIUS OF OUR COMMON LAW  ....  IT IS PERHAPS
THE MOST IMPORTANT WRIT KNOWN TO THE CONSTITUTIONAL LAW OF ENGLAND,
AFFORDING AS IT DOES A SWIFT AND IMPERATIVE REMEDY IN ALL CASES OF
ILLEGAL RESTRAINT OR CONFINEMENT.  IT IS OF IMMEMORIAL ANTIQUITY, AN
INSTANCE OF ITS USE OCCURRING IN THE THIRTY-THIRD YEAR OF EDWARD I. IT
HAS THROUGH THE AGES BEEN JEALOUSLY MAINTAINED BY COURTS OF LAW AS A
CHECK UPON THE ILLEGAL USURPATION OF POWER BY THE EXECUTIVE AT THE COST
OF THE LIEGE."  SECRETARY OF STATE FOR HOME AFFAIRS V. O'BRIEN (1923)
A.C. 603, 609. 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :
















TOMKINS V. MISSOURI, 323 U.S. 485 


NO. 64.  ARGUED DECEMBER 12, 1944.  - DECIDED JANUARY 8, 1945.  -
REVERSED. 


IN A PETITION TO THE SUPREME COURT OF MISSOURI FOR A WRIT OF HABEAS
CORPUS, THE PETITIONER, CONFINED IN A STATE PENITENTIARY FOR LIFE UPON
HIS PLEA OF GUILTY TO A CHARGE OF MURDER IN THE FIRST DEGREE, ALLEGED
THAT HE WAS NOT REPRESENTED BY COUNSEL, THAT THE COURT DID NOT MAKE AN
EFFECTIVE APPOINTMENT OF COUNSEL, THAT HE DID NOT WAIVE HIS
CONSTITUTIONAL RIGHT TO COUNSEL, THAT HE WAS IGNORANT OF HIS RIGHT TO
DEMAND COUNSEL, AND THAT HE WAS INCAPABLE ADEPUATELY OF MAKING HIS OWN
DEFENSE.  THE COURT ALLOWED THE PETITIONER TO PROCEED IN FORMA PAUPERIS
BUT DENIED THE PETITION FOR FAILURE TO STATE A CAUSE OF ACTION.  HELD: 

1.  THE ALLEGATIONS OF THE PETITION ARE HERE ASSUMED TO BE TRUE. 
WILLIAMS V. KAISER, ANTE, P. 471.  P. 487. 

2.  A REQUEST FOR COUNSEL BY ONE ACCUSED OF A CAPITAL OFFENSE, WHO IS
UNABLE TO EMPLOY COUNSEL AND INCAPABLE ADEQUATELY OF MAKING HIS OWN
DEFENSE, IS UNNECESSARY; IT IS THE DUTY OF THE COURT IN SUCH CASE TO
APPOINT COUNSEL.  P. 487. 

3.  THAT THE PETITION IN SUCH A CASE AS THIS IS NOT DRAWN WITH
PRECISION AND CLARITY IS NOT FATAL, WHERE THE SUBSTANCE OF THE CLAIM IS
PLAIN.  P. 487. 

4.  THE NATURE OF THE OFFENSE CHARGED AGAINST THE PETITIONER - WHO
COULD HAVE BEEN FOUND GUILTY OF MURDER IN THE FIRST OR SECOND DEGREE OR
OF MANSLAUGHTER, WITH VARYING PENALTIES - EMPHASIZED THE NEED OF
COUNSEL.  P. 488. 

5.  THE PETITION SUFFICIENTLY ALLEGED A DEPRIVATION OF THE RIGHT TO
COUNSEL IN VIOLATION OF THE FOURTEENTH AMENDMENT.  POWELL V. ALABAMA,
287 U.S. 45.  P. 489. 

TOMKINS V. MISSOURI. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

CERTIORARI, 322 U.S. 725, TO REVIEW AN ORDER DENYING A PETITION FOR A
WRIT OF HABEAS CORPUS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A COMPANION CASE TO WILLIAMS V. KAISER, ANTE, P. 471. 
IT, TOO, IS A PETITION FOR A WRIT OF HABEAS CORPUS HERE ON CERTIORARI
TO THE MISSOURI SUPREME COURT.  IT IS ALLEGED IN THE PETITION THAT
PETITIONER IN 1934 WAS CHARGED WITH MURDER IN THE FIRST DEGREE, PLEADED
GUILTY TO THE CHARGE, AND WAS CONVICTED AND SENTENCED TO THE STATE
PENITENTIARY FOR LIFE WHERE HE IS PRESENTLY CONFINED.  THE PETITION WAS
FILED IN 1944.  THE OTHER SALIENT FACTS ALLEGED ARE AS FOLLOWS: 

"THE PETITIONER STATES THAT IN THE PROCEEDINGS IN SAID CIRCUIT COURT
OF PEMISCOT COUNTY, MISSOURI, HE WAS NOT REPRESENTED BY COUNSEL, THE
COURT DID NOT MAKE AN EFFECTIVE APPOINTMENT OF COUNSEL, THE PETITIONER
DID NOT WAIVE HIS CONSTITUTIONAL RIGHT TO THE AID OF COUNSEL, AND HE
WAS IGNORANT OF HIS RIGHT TO DEMAND COUNSEL IN HIS BEHALF, AND HE WAS
INCAPABLE ADEQUATELY OF MAKING HIS OWN DEFENSE."  AND HE CONTENDS THAT
HE WAS DEPRIVED OF COUNSEL CONTRARY TO THE REQUIREMENTS OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  HERE, AS IN THE WILLIAMS
CASE, THE SUPREME COURT OF MISSOURI ALLOWED PETITIONER TO PROCEED IN
FORMA PAUPERIS BUT DENIED THE PETITION FOR THE REASON THAT IT "FAILS TO
STATE A CAUSE OF ACTION."  THE PETITION FOR HABEAS CORPUS WAS DENIED
WITHOUT REQUIRING THE STATE TO ANSWER OR WITHOUT GIVING PETITIONER AN
OPPORTUNITY TO PROVE HIS ALLEGATIONS.  AND THE ALLEGATIONS CONTAINED IN
THE PETITION DO NOT APPEAR TO BE INCONSISTENT WITH THE RECITALS OF THE
CERTIFIED COPY OF THE SENTENCE AND JUDGMENT WHICH ACCOMPANIED THE
PETITION AND UNDER WHICH PETITIONER IS CONFINED.  HENCE, WE MUST ASSUME
HERE, AS IN THE WILLIAMS CASE, THAT THE ALLEGATIONS OF THE PETITION ARE
TRUE. 

POWELL V. ALABAMA, 287 U.S. 45, 71, HELD THAT AT LEAST IN CAPITAL
CASES "WHERE THE DEFENDANT IS UNABLE TO EMPLOY COUNSEL, AND IS
INCAPABLE ADEQUATELY OF MAKING HIS OWN DEFENSE BECAUSE OF IGNORANCE,
FEEBLE MINDEDNESS, ILLITERACY, OR THE LIKE, IT IS THE DUTY OF THE
COURT, WHETHER REQUESTED OR NOT, TO ASSIGN COUNSEL FOR HIM AS A
NECESSARY REQUISITE OF DUE PROCESS OF LAW."  UNDER THAT TEST A REQUEST
FOR COUNSEL IS NOT NECESSARY.  FN1  ONE MUST BE ASSIGNED TO THE ACCUSED
IF HE IS UNABLE TO EMPLOY ONE AND IS INCAPABLE ADEQUATELY OF MAKING HIS
DEFENSE. 

THE PETITION IS NOT DRAWN WITH THE DESIRABLE PRECISION AND CLARITY. 
BUT WE CAN HARDLY DEMAND OF A LAYMAN AND PAUPER WHO DRAWS HIS PETITION
BEHIND PRISON WALLS THE SKILL OF ONE TRAINED IN THE LAW.  IF WE WERE TO
TAKE THAT COURSE, WE WOULD COMPOUND THE INJURY CAUSED BY THE ORIGINAL
DENIAL OF COUNSEL.  A DEPRIVATION OF THE CONSTITUTIONAL RIGHT OF
COUNSEL SHOULD NOT BE READILY INFERRED FROM VAGUE ALLEGATIONS.  BUT
WHERE THE SUBSTANCE OF THE CLAIM IS CLEAR, WE SHOULD NOT INSIST UPON
MORE REFINED ALLEGATIONS THAN PAUPERS, IGNORANT OF THEIR RIGHT OF
COUNSEL AND INCAPABLE OF MAKING THEIR DEFENSE, COULD BE EXPECTED TO
SUPPLY. 

IF THIS PETITION IS READ IN THAT LIGHT, IT SATISFIES THE REQUIREMENTS
OF POWELL V. ALABAMA.  ONE WHO WAS NOT REPRESENTED BY COUNSEL, WHO DID
NOT WAIVE HIS RIGHT TO COUNSEL AND WHO WAS IGNORANT OF HIS RIGHT TO
DEMAND COUNSEL IS ONE OF THE CLASS WHICH THE RULE OF POWELL V. ALABAMA
WAS DESIGNED TO PROTECT.  CERTAINLY WHEN WE READ THESE ALLEGATIONS WITH
THE FURTHER ASSERTION IN THE RECORD THAT PETITIONER WAS AT NO TIME
PRIOR TO CONVICTION ALLOWED TO CONSULT WITH AN ATTORNEY, THE CONCLUSION
IS IRRESISTIBLE THAT PETITIONER WAS UNABLE TO EMPLOY COUNSEL EITHER
BECAUSE HE WAS WITHOUT FUNDS OR BECAUSE HE WAS DEPRIVED OF THE
OPPORTUNITY. 

THE NATURE OF THE CHARGE EMPHASIZES THE NEED FOR COUNSEL.  UNDER
MISSOURI LAW ONE CHARGED WITH MURDER IN THE FIRST DEGREE MAY BE FOUND
GUILTY OF THAT OFFENSE, OF MURDER IN THE SECOND DEGREE, OR OF
MANSLAUGHTER.  REV. STAT. 1939, SECS. 4376, 4844.  THE PUNISHMENTS FOR
THE OFFENSES ARE DIFFERENT.  SECS.4378, 4391.  THE DIFFERENCES BETWEEN
THEM ARE GOVERNED BY RULES OF CONSTRUCTION MEANINGFUL TO THOSE TRAINED
IN THE LAW BUT UNKNOWN TO THE AVERAGE LAYMAN.  FN2  THE DEFENSES COVER
A WIDE RANGE.  FN3  AND THE INGREDIENTS OF THE CRIME OF MURDER IN THE
FIRST DEGREE AS DISTINGUISHED FROM THE LESSER OFFENSES ARE NOT SIMPLE
BUT ONES OVER WHICH SKILLED JUDGES AND PRACTITIONERS HAVE
DISAGREEMENTS.  FN4  THE GUIDING AHND OF COUNSEL IS NEEDED LEST THE
UNWARY CONCEDE THAT WHICH ONLY BEWILDERMENT OR IGNORANCE COULD JUSTIFY
OR PAY A PENALTY WHICH IS GREATER THAN THE LAW OF THE STATE EXACTS FOR
THE OFFENSE WHICH THEY IN FACT AND IN LAW COMMITTED. 

HERE, AS IN THE WILLIAMS CASE, THE ALLEGATIONS OF THE PETITION MAY
TURN OUT TO BE WHOLLY SPECIOUS.  BUT THEY ARE SUFFICIENT TO ESTABLISH A
PRIMA FACIE CASE OF DEPRIVATION OF THE CONSTITUTIONAL RIGHT.  THE OTHER
OBJECTIONS RAISED BY MISSOURI HAVE BEEN ANSWERED IN OUR OPINION IN THE
WILLIAMS CASE.  REVERSED. 

FN1  AS NOTED IN THE WILLIAMS CASE, THE MISSOURI STATUTE GOVERNING
THE APPOINTMENT OF COUNSEL (REV. STAT. 1939, SEC. 4003) EMPLOYS THE
LANGUAGE "ARRAIGNED UPON AN INDICTMENT FOR A FELONY."  THE PROSECUTION
IN THIS CASE WAS UPON AN INFORMATION.  BUT IT SEEMS THAT THE SUPREME
COURT OF MISSOURI APPLIES THE STATUTE IN THAT SITUATION AS WELL.  SEE
STATE V. TERRY, 201 MO. 697, 100 S.W. 432; STATE V. STEELMAN, 318 MO.
628, 300 S.W. 743. 

FN2  IN STATE V. BURRELL, 298 MO. 672, 680, 252 S.W. 709, IT WAS HELD
THAT "WHERE THERE IS WILLFUL KILLING WITH MALICE AFORETHOUGHT, THAT IS,
WITH MALICE AND PREMEDITATION, BUT NOT DELIBERATION, OR IN A COOL STATE
OF BLOOD, THE OFFENSE IS MURDER IN THE SECOND DEGREE.  NOR CAN ANY
HOMICIDE BE MURDER IN THE SECOND DEGREE UNLESS THE ACT CAUSING DEATH
WAS COMMITTED WITH MALICE AFORETHOUGHT, THAT IS, WITH MALICE AND
PREMEDITATION.  WHERE THERE IS A WILLFUL KILLING WITHOUT DELIBERATION
AND NOT WITH MALICE AFORETHOUGHT, THE OFFENSE IS MANSLAUGHTER." 

FN3  SELF-DEFENSE AND INSANITY ARE DEFENSES.  REV. STAT. 1939, SEC.
4049.  JUSTIFIABLE OR EXCUSABLE HOMICIDE IS A DEFENSE (ID. SEC. 4381)
AS THOSE TERMS ARE DEFINED.  ID. SECS. 4379, 4380. 

FN4  "THE LAW PRESUMES THE KILLING WAS MURDER IN THE SECOND DEGREE,
IN THE ABSENCE OF PROOF OF ATTENDANT CIRCUMSTANCES WHICH TEND TO RAISE
THE KILLING TO MURDER IN THE FIRST DEGREE OR TO REDUCE IT TO
MANSLAUGHTER."  STATE V. HENKE, 313 MO. 615, 638, 285 S.W. 392.  AS TO
THE NECESSITY ON CERTAIN EVIDENCE TO GIVE INSTRUCTIONS ON A LESSER
OFFENSE THAN MURDER IN THE FIRST DEGREE, SEE STATE V. WARREN, 326 MO.
843, 33 S.W.2D 125; STATE V. WRIGHT, 337 MO. 441, 85 S.W.2D 7; STATE V.
JACKSON, 344 MO. 1055, 130 S.W.2D 595. 

MR. JUSTICE ROBERTS AND MR. JUSTICE FRANKFURTER THINK THE WRIT SHOULD
BE DISMISSED FOR THE REASONS SET FORTH IN THEIR DISSENT IN WILLIAMS V.
KAISER, ANTE, P. 479. 
..END :



WESTERN UNION V. LENROOT, 323 U.S. 490 


NO. 49.  ARGUED NOVEMBER 8, 9, 1944.  - DECIDED JANUARY 8, 1945.  - 141
F.2D 400, REVERSED. 


1.  THE LEGISLATIVE HISTORY OF THE CHILD LABOR PROVISIONS OF THE FAIR
LABOR STANDARDS ACT OF 1938 IS INCONCLUSIVE AS TO WHETHER THE ACT WAS
INTENDED TO REACH SUCH CHILD LABOR AS IS HERE INVOLVED.  P. 500. 

2.  SECTION 12(A) OF THE FAIR LABOR STANDARDS ACT OF 1938, WHICH
PROVIDES THAT "NO PRODUCER ...  SHALL SHIP OR DELIVER FOR SHIPMENT IN
COMMERCE ANY GOODS PRODUCED IN AN ESTABLISHMENT  ... IN OR ABOUT WHICH
...  ANY OPPRESSIVE CHILD LABOR HAS BEEN EMPLOYED  ...," HELD
INAPPLICABLE TO A COMPANY ENGAGED IN THE TRANSMISSION IN INTERSTATE
COMMERCE OF TELEGRAPH MESSAGES.  P. 501 ET SEQ. 

(A)  TRANSMISSION OF TELEGRAPH MESSAGES IS NOT PRODUCTION OF GOODS,
WITHIN SEC. 12(A).  AS USED IN SEC. 3(J) OF THE ACT, WHICH DEFINES
"PRODUCED" AS MEANING, INTER ALIA, "HANDLED" OR "WORKED ON," THE WORDS
"HANDLED" AND "WORKED ON" INCLUDE EVERY KIND OF INCIDENTAL OPERATION
PREPARATORY TO PUTTING GOODS INTO THE STREAM OF COMMERCE, BUT DO NOT
INCLUDE SUCH HANDLING OR WORKING ON AS ACCOMPLISHES THE INTERSTATE
TRANSIT OR MOVEMENT IN COMMERCE ITSELF.  P. 504. 

(B)  THE WORD "SHIP," USED IN THE ACT IN ITS ORDINARY MEANING, IS
INAPPLICABLE TO TELEGRAPH MESSAGES.  P. 506. 

(C)  THE RECOIL ON THE PUBLIC INTEREST WHICH WOULD ENSUE IS
PERSUASIVE THAT THE ACT DID NOT CONTEMPLATE APPLICATION OF ITS INDIRECT
SANCTIONS TO THE TELEGRAPH COMPANY.  P. 507. 

WESTERN UNION TELEGRAPH CO. V. LENROOT, CHIEF OF CHILDREN'S BUREAU,
UNITED STATES DEPARTMENT OF LABOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 322 U.S. 719, TO REVIEW THE AFFIRMANCE OF A DECREE OF
INJUNCTION, 52 F.SUPP.  142, RESTRAINING ALLEGED VIOLATIONS OF THE
CHILD LABOR PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

A DECREE OF THE DISTRICT COURT IN SUBSTANCE RESTRAINS THE WESTERN
UNION TELEGRAPH COMPANY FROM TRANSMITTING MESSAGES IN INTERSTATE
COMMERCE UNTIL FOR THIRTY DAYS IT HAS CEASED EMPLOYMENT OF MESSENGERS
UNDER THE AGE OF SIXTEEN YEARS AND OF CERTAIN OTHERS BETWEEN THE AGES
OF SIXTEEN AND EIGHTEEN.  THIS WAS THOUGHT TO BE REQUIRED BY THE FAIR
LABOR STANDARDS ACT OF 1938.  THE CIRCUIT COURT OF APPEALS AFFIRMED,
AND WE GRANTED CERTIORARI.  322 U.S. 719. 

THE WESTERN UNION TELEGRAPH COMPANY COLLECTS MESSAGES IN COMMUNITIES
OF ORIGIN AND DISPATCHES THEM BY ELECTRICAL IMPULSES TO PLACES OF
DESTINATION WHERE THEY ARE DISTRIBUTED.  MESSENGERS ARE EMPLOYED IN
BOTH COLLECTION AND DISTRIBUTION.  A LITTLE UNDER 12 PER CENT OF THE
MESSENGER FORCE IS UNDER SIXTEEN YEARS OF AGE, AND ABOUT 0.0033 PER
CENT ARE FROM SIXTEEN TO EIGHTEEN YEARS OF AGE, ENGAGED IN THE
OPERATION OF MOTOR VEHICLES, SCOOTERS, AND TELEMOTORS.  THESE
MESSENGERS ARE EMPLOYED ONLY IN LOCALITIES WHERE THE LAW OF THE STATE
PERMITS IT.  IT IS NOT DENIED THAT BOTH GROUPS ARE ENGAGED IN
OPPRESSIVE CHILD LABOR AS DEFINED BY THE FEDERAL ACT,  FN1  IF IT
APPLIES.  WHETHER IT DOES SO APPLY IS THE ONLY ISSUE HERE. 

                   I 

IT IS CONCEDED THAT THE ACT DOES NOT DIRECTLY PROHIBIT THE EMPLOYMENT
OF THESE MESSENGERS, BECAUSE IT CONTAINS NO PROHIBITION AGAINST
EMPLOYMENT OF CHILD LABOR IN CONDUCTING INTERSTATE COMMERCE.  FN2  IT
IS CONCEDED, TOO, THAT LANGUAGE APPROPRIATE DIRECTLY TO FORBID THIS
EMPLOYMENT WAS PROPOSED TO CONGRESS AND TWICE REJECTED. 

THE MAJOR EVENTS OF THE RECORDED LEGISLATIVE HISTORY OF THIS ACT SO
FAR AS RELEVANT WERE AS FOLLOWS:  AFTER THE PRESIDENT'S LABOR MESSAGE
OF MAY 24, 1937(HOUSE DOC. NO. 255, 75TH CONG., 1ST SESS., P. 2)
REMINDED CONGRESS THAT "A SELF-RESPECTING AND SELF-SUPPORTING DEMOCRACY
CAN PLEAD NO JUSTIFICATION FOR THE EXISTENCE OF CHILD LABOR," BILLS
CAREFULLY DRAWN TO CARRY OUT HIS RECOMMENDATIONS WERE INTRODUCED IN THE
SENATE BY SENATOR BLACK AND IN THE HOUSE BY REPRESENTATIVE CONNERY. 
THESE BILLS EXPRESSLY AND COMPREHENSIVELY PROHIBITED THE EMPLOYMENT OF
CHILD LABOR EITHER IN INTERSTATE COMMERCE OR IN PRODUCTION OF GOODS
INTENDED FOR SHIPMENT IN INTERSTATE COMMERCE, AS WELL AS PROHIBITING
SHIPMENT OF GOODS MADE BY CHILD LABOR.  FN3  WHEN THE BLACK BILL CAME
TO VOTE IN THE SENATE, HOWEVER, ALL OF ITS CHILD-LABOR PROVISIONS WERE
STRICKEN, AND THE PROVISIONS OF ANOTHER BILL RECOMMENDED BY THE
COMMITTEE ON INTERSTATE COMMERCE WERE SUBSTITUTED N4.  THIS PROHIBITED
THE SHIPMENT IN INTERSTATE COMMERCE OF GOODS MADE BY CHILD LABOR, BUT
IT DID NOT PROHIBIT THE USE OF IT IN CARRYING ON THE COMMERCE ITSELF. 
THUS THE SENATE DELETED A DIRECT PROHIBITION OF THE EMPLOYMENT UNDER
QUESTION HERE.  BUT THE HOUSE, IN TURN, STRUCK OUT ALL OF THE CHILD
LABOR PROVISIONS OF THE SENATE BILL AND SUBSTITUTED THOSE OF THE
CONNERY BILL,  FN5  WHICH WAS A COUNTERPART OF THE BLACK BILL.  THIS
WAS MUCH AMENDED, BUT AS PASSED AT LENGTH IT CONTAINED A PROVISION
FORBIDDING CHILD LABOR IN INTERSTATE COMMERCE "IN ANY INDUSTRY
AFFECTING COMMERCE" AND A PROHIBITION OF SHIPMENT OF CHILD-LABOR-MADE
GOODS.  FN6 THE SENATE, HOWEVER, DID NOT AGREE TO THE HOUSE BILL, BUT
MEANWHILE HAD PASSED AS A SEPARATE MEASURE ITS OWN CHILD-LABOR BILL AS
RECOMMENDED BY THE INTERSTATE COMMERCE COMMITTEE.  FN7  THIS DID NOT
PROHIBIT CHILD LABOR IN INTERSTATE COMMERCE.  IN THIS POSTURE THE FAIR
LABOR STANDARDS BILL WENT TO CONFERENCE.  THE CONFERENCE REPORT SAYS
THAT THE COMMITTEE "ADOPTS THE CHILD LABOR PROVISIONS OF THE HOUSE
AMENDMENT, WITH ONE EXCEPTION.  IN VIEW OF THE OMISSION FROM THE
CONFERENCE AGREEMENT OF THE PRINCIPLE OF SECTION 6 OF THE HOUSE
AMENDMENT, SUBSECTION (B) OF SECTION 10 OF THE HOUSE AMENDMENT HAS BEEN
OMITTED."  FN8  THE FORMULA COVERING EVERY EMPLOYER "IN COMMERCE IN AN
INDUSTRY AFFECTING COMMERCE" HAD BEEN EMPLOYED IN THE WAGE AND HOUR AS
WELL AS THE CHILD-LABOR PROVISIONS OF THE HOUSE BILL, AND SEC. 6
CONFERRED ON THE SECRETARY OF LABOR THE POWER TO DECIDE WHETHER AN
INDUSTRY WAS ONE "AFFECTING COMMERCE."  WITH THE ELIMINATION OF THIS
DELEGATION TO THE SECRETARY, THE FORMULA WAS CHANGED IN THE WAGE AND
HOUR PROVISIONS, MAKING THEM APPLY TO "EVERY EMPLOYEE ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE."  INSTEAD OF
MAKING A CORRESPONDING CHANGE IN THE CHILD-LABOR SECTION, THE
CONFERENCE COMMITTEE DROPPED THE WHOLE CLAUSE.  NO REASON FOR THIS
DIFFERENT TREATMENT OF THE CHILD-LABOR SECTION WAS GIVEN. 

NO CONTROVERSY APPEARS TO HAVE ARISEN ON THE FLOOR OF CONGRESS AS TO
INCLUSION OF A DIRECT PROHIBITION APPLICABLE TO INTERSTATE COMMERCE. 
ON THE CONTRARY, THE ADVOCATES OF THE DIFFERENT VERSIONS PASSED BY THE
SENATE AND HOUSE SEEM TO HAVE OVERLOOKED THE FACT THAT ONE CONTAINED
THE PROHIBITION AND THE OTHER DID NOT; CONTROVERSY WAS CHIEFLY OVER
WHETHER THE ACT SHOULD SIMPLY RE-ENACT THE METHOD OF THE 1916 ACT,
WHICH HAD BEEN HELD UNCONSTITUTIONAL, OR SHOULD HEDGE BY INCLUDING
LABELLING AND OTHER REMEDIES WHICH MIGHT HAVE A BETTER CHANCE OF BEING
UPHELD, WHETHER STATE-ISSUED AGE CERTIFICATES SHOULD BE UTILIZED, HOW
MUCH DISCRETION SHOULD BE VESTED IN THE DEPARTMENT OF LABOR, AND
WHETHER PARTICULAR GOODS ONLY OR ALL GOODS FROM A PARTICULAR
ESTABLISHMENT SHOULD BE EXCLUDED FROM COMMERCE.  FN9 SO FAR AS COVERAGE
WAS CONCERNED, ALL PROPONENTS WERE AWARE THAT ANY OF THE SUGGESTED
VERSIONS OF LEGISLATION WOULD REACH ONLY A SMALL FRACTION OF EXISTING
CHILD LABOR,  FN10  AND THE CHIEF CONCERN SEEMS TO HAVE BEEN TO
ELIMINATE CHILD LABOR IN MINING AND MANUFACTURING INDUSTRIES SHIPPING
GOODS IN INTERSTATE COMMERCE,  FN11 WHICH WAS THE MOST OBJECTIONABLE
USE OF CHILD LABOR.  FN12  THIS HAD BEEN THE ONLY OBJECT OF THE EARLIER
LEGISLATION WHICH HAD BEEN HELD UNCONSTITUTIONAL; NEITHER THE ACT OF
1916,  FN13  HELD UNCONSTITUTIONAL IN HAMMER V. DAGENHART, 247 U.S.
251, NOR THE ACT OF 1919,  FN14  HELD UNCONSTITUTIONAL IN BAILEY V.
DREXEL FURNITURE CO., 259 U.S. 20, HAD PROHIBITED CHILD LABOR IN
INTERSTATE COMMERCE, BUT BOTH APPLIED ONLY TO CHILD LABOR IN MINES,
QUARRIES, MILLS, CANNERIES, WORKSHOPS, FACTORIES, AND MANUFACTURING
ESTABLISHMENTS. 

BOTH PARTIES CONTEND ON THE BASIS OF LEGISLATIVE HISTORY THAT THE
OMISSION OF A DIRECT PROHIBITION WAS DELIBERATE; THE COMPANY ARGUING
THAT IT WAS UNWANTED, THE GOVERNMENT THAT IT WAS BELIEVED SUPERFLUOUS. 
WE THINK THAT DISPASSIONATE READING WILL NOT DISCLOSE WHAT EITHER
ADVOCATE SEES IN THIS HISTORY. 

IT IS NOWHERE STATED THAT CONGRESS DID, AND NO REASON IS STATED OR IS
OBVIOUS WHY CONGRESS SHOULD, PURPOSELY LEAVE UNTOUCHED CHILD LABOR
EMPLOYED DIRECTLY IN INTERSTATE COMMERCE.  IT IS TRUE THAT NO OPPONENT
OF CHILD LABOR APPEARED TO WANT TO STRIKE AT ALL OF IT.  AGRICULTURE,
WHICH ACCOUNTS FOR FROM ONE-HALF TO TWO-THIRDS OF IT, WAS EXPRESSLY
EXEMPTED.  CHILD ACTORS, ALMOST NEGLIGIBLE IN NUMBER, WERE EXEMPTED. 
TELEGRAPH MESSENGERS, SO FAR AS THE EVIDENCE REVEALS, ALTHOUGH A
FAMILIAR FORM OF CHILD LABOR, WERE IN NO ONE'S MIND IN CONNECTION WITH
THIS PROHIBITION, ALTHOUGH THE PECULIARITIES OF THAT SERVICE WERE
RECOGNIZED IN ALLOWING THEM UNDER CERTAIN CONDITIONS TO BE EMPLOYED AT
LOWER THAN MINIMUM WAGES UNDER THE ACT.  FN15  BUT WHETHER A MAJORITY
OF CONGRESS, HAD THIS QUESTION COME TO ITS ATTENTION, WOULD HAVE
REGARDED MESSENGER SERVICE AS MORE LIKE AGRICULTURE IN BEING A
RELATIVELY INOFFENSIVE TYPE OF CHILD LABOR OR AS MORE LIKE MINING AND
MANUFACTURING, CONSIDERED MORE HARMFUL, IS A QUESTION ON WHICH WE HAVE
NO INFORMATION WHATEVER. 

ON THE OTHER HAND, WE FIND NOTHING TO SUSTAIN THE GOVERNMENT'S
POSITION THAT "THE OMISSION RESULTED FROM THE REALIZATION THAT THE
INDIRECT SANCTION OF FORBIDDING INTERSTATE SHIPMENT, COUPLED WITH BROAD
STATUTORY DEFINITIONS" WOULD BE CONSTRUED TO ELIMINATE CHILD LABOR FROM
INTERSTATE COMMERCE.  NO SUCH REALIZATION APPEARS IN ANY COMMITTEE
REPORT, IN THE SPEECH OF ANY SPONSOR OF THE BILLS, NOR IN DEBATE EITHER
ON THE PART OF THOSE SUPPORTING OR OF THOSE OPPOSING THE BILLS.  THE
ONLY EXPLANATION ADVANCED FOR THE HYPOTHESIS THAT CONGRESS DELIBERATELY
CHOSE INDIRECTION INSTEAD OF FORTHRIGHT PROHIBITION IS AN ASSUMPTION
THAT THERE WERE DOUBTS OF ITS CONSTITUTIONAL POWER TO ENACT DIRECT
LEGISLATION.  IT IS TRUE THAT IN HAMMER V. DAGENHART, 247 U.S. 251,
THIS COURT HAD HELD THAT AN EARLIER ATTEMPT TO EXCLUDE FROM INTERSTATE
COMMERCE PRODUCTS OF MINES AND MILLS THAT EMPLOYED CHILD LABOR WAS AN
INVALID ATTEMPT TO REACH EMPLOYMENT MATTERS WITHIN THE CONTROL OF THE
STATES.  BUT EVEN THE PREVAILING OPINION IN THAT CASE EXPRESSLY
CONCEDED THAT CONGRESS HAD AMPLE POWER TO CONTROL THE MEANS BY WHICH
INTERSTATE COMMERCE IS CARRIED ON. 247 U.S. AT 272.  THERE WAS NEVER A
HOLDING OR AN INTIMATION IN THIS OR ANY OTHER DECISION OF THIS COURT
THAT A DIRECT PROHIBITION OF CHILD LABOR IN INTERSTATE COMMERCE WOULD
NOT BE SUSTAINED.  RESTRICTIVE INTERPRETATION IN THIS FIELD REACHED ITS
MAXIMUM IN HAMMER V. DAGENHART.  IT WAS DECIDED BY A CLOSELY DIVIDED
COURT AND AT THE TIME THIS BILL WAS PENDING IT WAS UNDERMINED BY LATER
DECISIONS AND WAS THOUGHT TO BE MARKED, EVEN THEN, FOR CONSIGNMENT TO
THE LIMBO OF OVERRULED CASES, A PREDICTION THAT WAS SHORTLY FULFILLED. 
UNITED STATES V. DARBY, 312 U.S. 100.  MOREOVER, THE PURPOSE OF THE
PROPONENTS OF THIS ACT TO CHALLENGE THE DECISION IN HAMMER V. DAGENHART
AND REQUIRE THIS COURT TO RE-EXAMINE ITS SOUNDNESS IS MANIFEST IN MANY
WAYS.  IT CAN HARDLY BE SUPPOSED THAT CONGRESS, WHILE REASSERTING A
POWER ONCE DENIED TO IT, FEARED TO EXERCISE DIRECTLY A POWER OFTEN
CONCEDED AND NEVER DENIED. 

OUR SEARCH OF LEGISLATIVE HISTORY YIELDS NOTHING TO SUPPORT THE
COMPANY'S CONTENTION THAT CONGRESS DID NOT WANT TO REACH SUCH CHILD
LABOR AS WE HAVE HERE.  AND IT YIELDS NO MORE TO SUPPORT THE
GOVERNMENT'S CONTENTION THAT CONGRESS WANTED TO FOREGO DIRECT
PROHIBITION IN FAVOR OF INDIRECT SANCTIONS.  INDEED, WE ARE UNABLE TO
SAY THAT ELIMINATION OF THE DIRECT PROHIBITIONS FROM THE FINAL FORM OF
THE BILL WAS PURPOSEFUL AT ALL OR THAT IT DID NOT HAPPEN FROM SHEER
INADVERTENCE, DUE TO CONCENTRATION ON MORE VITAL AND CONTROVERSIAL
ASPECTS OF THE LEGISLATION.  THE MOST THAT WE CAN MAKE OF IT IS THAT NO
DEFINITE POLICY EITHER WAY APPEARS IN REFERENCE TO SUCH AN EMPLOYMENT
AS WE HAVE IN THIS CASE, NO LEGISLATIVE INTENT IS MANIFEST AS TO THE
FACTS OF THIS CASE WHICH WE SHOULD STRAIN TO EFFECTUATE BY
INTERPRETATION.  OF COURSE, IF BY FAIR CONSTRUCTION THE INDIRECT
SANCTIONS OF THE ACT APPLY TO THIS EMPLOYMENT, COURTS MAY NOT REFUSE TO
ENFORCE THEM MERELY BECAUSE WE CANNOT UNDERSTAND WHY A SIMPLER AND MORE
DIRECT METHOD WAS NOT USED.  BUT WE TAKE THE ACT AS CONGRESS GAVE IT TO
US, WITHOUT ATTEMPTING TO CONFORM IT TO ANY NOTIONS OF WHAT CONGRESS
WOULD HAVE DONE IF THE CIRCUMSTANCES OF THIS CASE HAD BEEN PUT BEFORE
IT.

                                  II 

THE GOVERNMENT BROUGHT THIS ACTION TO REACH INDIRECTLY CHILD LABOR IN
INTERSTATE COMMERCE BY BRINGING IT UNDER THE PROHIBITION OF SEC. 12(A)
OF THE ACT, WHICH SO FAR AS MATERIAL READS "NO PRODUCER, MANUFACTURER,
OR DEALER SHALL SHIP OR DELIVER FOR SHIPMENT IN COMMERCE ANY GOODS
PRODUCED IN AN ESTABLISHMENT SITUATED IN THE UNITED STATES IN OR ABOUT
WHICH WITHIN THIRTY DAYS PRIOR TO THE REMOVAL OF SUCH GOODS THEREFROM
ANY OPPRESSIVE CHILD LABOR HAS BEEN EMPLOYED."  VIOLATION OF THIS
COMMAND IS A CRIME (SECS. 15 AND 16) PUNISHABLE BY A FINE AND
IMPRISONMENT, AND THREATENED VIOLATIONS MAY BE RESTRAINED BY
INJUNCTION.  THE GOVERNMENT IN THIS CASE SOUGHT INJUNCTION.  ITS
COMPLAINT CHARGES THE WESTERN UNION WITH A VIOLATION IN THAT "DEFENDANT
HAS BEEN ENGAGED IN SHIPPING TELEGRAPH MESSAGES IN INTERSTATE COMMERCE
AND IN DELIVERING TELEGRAPH MESSAGES FOR SHIPMENT IN INTERSTATE
COMMERCE, THE SAID GOODS HAVING BEEN PRODUCED IN ITS SAID
ESTABLISHMENTS IN OR ABOUT WHICH THE AFORESAID MINORS WERE EMPLOYED,
SUFFERED, AND PERMITTED TO WORK WITHIN THIRTY (30) DAYS PRIOR TO THE
REMOVAL OF SAID GOODS THEREFROM." 

CONTENTION THAT THIS SECTION IS APPLICABLE TO THE WESTERN UNION IS
PREDICATED ON THREE STEPS, VIZ.:  TELEGRAMS ARE "GOODS" WITHIN ITS
MEANING; THE COMPANY "PRODUCES" THESE GOODS WITHIN THE ACT BECAUSE IT
"HANDLES" THEM; AND TRANSMISSION IS "SHIPMENT" WITHIN ITS TERMS.  IF IT
CAN MAINTAIN ALL THREE OF THESE POSITIONS, THE GOVERNMENT IS ENTITLED
TO AN INJUNCTION; IF IT FAILS IN ANY ONE, ADMITTEDLY THE EFFORT TO
BRING THE EMPLOYMENT UNDER THE ACT MUST FAIL. 

THE GOVERNMENT SAYS MESSAGES ARE "GOODS" BECAUSE THE ACT DEFINES
"GOODS" AS THEREIN USED TO INCLUDE AMONG OTHER THINGS "ARTICLES OR
SUBJECTS OF COMMERCE OF ANY CHARACTER."  SEC. 3(I).  OF COURSE,
STATUTORY DEFINITIONS OF TERMS USED THEREIN PREVAIL OVER COLLOQUIAL
MEANINGS.  FOX V. STANDARD OIL CO., 294 U.S. 87, 95.  IT WAS LONG AGO
SETTLED THAT TELEGRAPH LINES WHEN EXTENDING THROUGH DIFFERENT STATES
ARE INSTRUMENTS OF COMMERCE AND MESSAGES PASSING OVER THEM ARE A PART
OF COMMERCE ITSELF.  WESTERN UNION TELEGRAPH CO. V. JAMES, 162 U.S.
650, 654.  THAT "IDEAS, WISHES, ORDERS, AND INTELLIGENCE" ARE
"SUBJECTS" OF THE INTERSTATE COMMERCE IN WHICH TELEGRAPH COMPANIES
ENGAGE HAS ALSO BEEN HELD.  WESTERN UNION TEL. CO. V. PENDLETON, 122
U.S. 347, 356; CF. ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103, 128. 
IT IS UNNECESSARY TO DECIDE WHETHER ELECTRIC IMPULSES INTO WHICH THE
WORDS OF THE MESSAGE ARE TRANSFORMED ARE "GOODS" WITHIN THE ACT (CF.
UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165; FISHER'S BLEND STATION
V. STATE TAX COMMISSION, 297 U.S. 650; ELECTRIC BOND & SHARE CO. V.
SECURITIES & EXCHANGE COMMISSION, 303 U.S. 419), SINCE THE COMPLAINT IS
NOT BASED ON "SHIPMENT" OF IMPULSES AS "GOODS" BUT ONLY OF MESSAGES. 
WE THINK TELEGRAPHIC MESSAGES ARE CLEARLY "SUBJECTS OF COMMERCE" AND
HENCE THAT THEY ARE "GOODS" UNDER THIS ACT, AS ALLEGED IN THE
COMPLAINT. 

THE NEXT INQUIRY IS WHETHER THE WESTERN UNION TELEGRAPH COMPANY IS A
PRODUCER OF THESE GOODS WITHIN THE ACT.  CONGRESS HAS LAID DOWN A
DEFINITION THAT AS USED IN THE ACT "'PRODUCED' MEANS PRODUCED,
MANUFACTURED, MINED, HANDLED, OR IN ANY OTHER MANNER WORKED ON  ..." 
SEC. 3(J).  THE COMPANY, SAYS THE GOVERNMENT, NOT ONLY "HANDLES" THE
MESSAGE BUT "WORKS ON" IT. 

THE GOVERNMENT CONTENDS THAT IN DEFINING "PRODUCED" THE STATUTE
INTENDS "HANDLED" OR "WORKED ON" TO MEAN NOT ONLY HANDLING OR WORKING
ON IN RELATION TO PRODUCING OR MAKING AN ARTICLE READY TO ENTER
INTERSTATE TRANSIT, BUT ALSO INCLUDES THE HANDLING OR WORKING ON WHICH
ACCOMPLISHES THE INTERSTATE TRANSIT OR MOVEMENT IN COMMERCE ITSELF.  IF
THIS CONSTRUCTION IS ADOPTED, EVERY TRANSPORTER, TRANSMITTER, OR MOVER
IN INTERSTATE COMMERCE IS A "PRODUCER" OF ANY GOODS HE CARRIES.  BUT
THE STATUTE, WHILE DEFINING "PRODUCED" TO MEAN "HANDLED" OR "WORKED ON"
HAS NOT DEFINED "HANDLED" OR "WORKED ON."  THESE ARE TERMS OF ORDINARY
SPEECH AND MEAN WHAT THEY MEAN IN ORDINARY INTERCOURSE IN THIS
CONTEXT.  THEY SERVE A USEFUL PURPOSE WHEN READ TO RELATE TO ALL STEPS,
WHETHER MANUFACTURE OR NOT, WHICH LEAD TO READINESS FOR PUTTING GOODS
INTO THE STREAM OF COMMERCE.  ONE WHO PACKAGES A PRODUCT, OR BOTTLES A
LIQUID, OR LABELS, OR PERFORMS ANY NUMBER OF TASKS INCIDENTAL TO
PREPARING FOR SHIPMENT MIGHT OTHERWISE ESCAPE THE ACT, FOR IN A SENSE
HE NEITHER MANUFACTURES, PRODUCES, OR MINES THE GOODS.  WE ARE CLEAR
THAT "HANDLED" OR "WORKED ON" INCLUDES EVERY KIND OF INCIDENTAL
OPERATION PREPARATORY TO PUTTING GOODS INTO THE STREAM OF COMMERCE. 

IF WE GO BEYOND THIS AND ASSUME THAT HANDLING FOR TRANSIT PURPOSES IS
HANDLING IN PRODUCTION, WE ENCOUNTER RESULTS WHICH WE THINK CONGRESS
COULD NOT HAVE INTENDED.  THE DEFINITIONS OF THIS ACT APPLY TO THE WAGE
AND HOUR PROVISIONS, AS WELL AS TO THE CHILD LABOR PROVISIONS.  SECTION
15(A) MAKES IT UNLAWFUL TO TRANSPORT OR SHIP GOODS IN THE PRODUCTION OF
WHICH ANY EMPLOYEE WAS EMPLOYED IN VIOLATION OF THE WAGE AND HOUR
PROVISIONS.  BUT IT MAKES THIS EXCEPTION:  "EXCEPT THAT NO PROVISION OF
THIS ACT SHALL IMPOSE ANY LIABILITY UPON ANY COMMON CARRIER FOR THE
TRANSPORTATION IN COMMERCE IN THE REGULAR COURSE OF ITS BUSINESS OF ANY
GOODS NOT PRODUCED BY SUCH COMMON CARRIER."  THIS RECOGNIZES A
DISTINCTION BETWEEN HANDLING IN TRANSPORTATION AND PRODUCING, WHICH IS
ENTIRELY PUT TO NAUGHT BY THE GOVERNMENT'S CONTENTION THAT BY
DEFINITION EVERYONE WHO HANDLES GOODS IN CARRIAGE IS THEREBY MADE A
PRODUCER.  THE EXCEPTION THEN IS AS IF IT READ "THE ACT SHALL IMPOSE NO
LIABILITY ON A COMMON CARRIER FOR CARRYING GOODS THAT IT DOES NOT
CARRY."  ONE WOULD NOT READILY IMPUTE SUCH AN ABSURDITY TO CONGRESS;
NOR CAN WE ASSUME, CONTRARY TO THE STATUTE, THAT "PRODUCED" MEANS ONE
THING IN ONE SECTION AND SOMETHING ELSE IN ANOTHER.  TO CONSTRUE THOSE
WORDS TO MEAN THAT HANDLING IN CARRIAGE OR TRANSMISSION IN COMMERCE
MAKES ONE A PRODUCER MAKES ONE OF THESE RESULTS INEVITABLE.  CONGRESS,
WE THINK, DID NOT INTEND TO OBLITERATE ALL DISTINCTION BETWEEN
PRODUCTION AND TRANSPORTATION.  ITS ARTIFICIAL DEFINITION, IF CONSTRUED
TO MEAN THAT "HANDLING" AND "WORKED ON" CATCHES UP INTO THE CATEGORY OF
PRODUCTION EVERY STEP IN PUTTING THE SUBJECT OF COMMERCE IN A STATE TO
ENTER COMMERCE, IS A SENSIBLE AND USEFUL ONE, NOT AT ODDS WITH ANY
OTHER SECTION OF THE ACT.  WE THINK THE GOVERNMENT HAS NOT ESTABLISHED
ITS CONTENTION THAT THE WESTERN UNION IS A "PRODUCER" OF TELEGRAPH
MESSAGES. 

A THIRD INQUIRY REMAINS.  HAS THE COMPANY ENGAGED IN "SHIPPING
TELEGRAPH MESSAGES IN INTERSTATE COMMERCE AND IN DELIVERING TELEGRAPH
MESSAGES FOR SHIPMENT" AS ALLEGED?  THE LEARNED TRIAL COURT SAID, "MORE
TROUBLESOME IS THE QUESTION WHETHER THE DEFENDANT 'SHIPPED' GOODS IN
COMMERCE."  BUT HE CONCLUDED ON THE BASIS OF OUR DECISIONS THAT THE
DEFENDANT WAS A "CARRIER OF MESSAGES" TO BE COMPARED TO A RAILROAD AS A
"CARRIER OF GOODS," CITING TELEGRAPH CO. V. TEXAS, 105 U.S. 460, 464,
PENSACOLA TELEGRAPH CO. V. WESTERN UNION TELEGRAPH CO., 96 U.S. 1.  HE
THOUGHT "SHIP" SYNONYMOUS WITH "TRANSPORT" AND "CONVEY" AND HENCE HELD
THAT THE COMPANY WAS "SHIPPING" MESSAGES. 

THE CIRCUIT COURT OF APPEALS, ALTHOUGH IT SUSTAINED THE INJUNCTION,
TOOK A CONTRARY VIEW OF THE NATURE OF THE ENTERPRISE.  IT ANALYZED THE
TECHNOLOGY OF TRANSMITTING MESSAGES.  THE MESSAGE, IT SAID, NEVER
LEAVES THE ORIGINATING OFFICE.  IT IS ONLY A TEXT FOR SENDING
ELECTRICAL IMPULSES "WHICH ARE NOT ONLY NOT THE SENDER'S MESSAGE, BUT
WOULD BE TOTALLY INCOMPREHENSIBLE TO HIM OR TO THE ADDRESSEE, IF EITHER
COULD PERCEIVE THEM."  IT SAID, "FROM THE FOREGOING IT IS AT ONCE
APPARENT THAT THERE IS NOT THE LEAST SIMILARITY BETWEEN WHAT THE
DEFENDANT DOES AND THE TRANSPORTATION OF GOODS BY A COMMON CARRIER. 
THUS IT CUT THE GROUND FROM UNDER THE GOVERNMENT'S ONLY ALLEGATION OF
VIOLATION:  I.E., THAT THE COMPANY IS ENGAGED IN "SHIPPING" MESSAGES. 
IT ADVANCED THIS THEORY, APPARENTLY, TO ANSWER THE COMPANY'S CONTENTION
THAT IF IT WAS LIKENED TO A CARRIER, AS THE DISTRICT COURT THOUGHT, IT
WAS ENTITLED TO THE BENEFIT OF THE CARRIER'S EXEMPTION IN SEC.
15(A)(1).  WE DO NOT THINK IT IS NECESSARY FOR US TO RESOLVE THE
INTERESTING BUT BAFFLING INQUIRY AS TO PRECISELY WHAT, IF ANYTHING,
MOVES ACROSS STATE LINES IN THE TELEGRAPHIC PROCESS.  IN ITS PRACTICAL
ASPECTS, WHICH CONCERN THE PUBLIC, TRANSMISSION OF MESSAGES IS TOO WELL
KNOWN TO REQUIRE ANALYSIS; AND IN ITS SCIENTIFIC ASPECTS, WHICH
INTEREST THE PHYSICIST, IT IS TOO LITTLE KNOWN TO PERMIT OF IT. 

THE STATUTE APPLIES THE INDIRECT SANCTIONS OF THE ACT ONLY TO THOSE
WHO "SHIP" SUBJECTS OF COMMERCE.  IT DOES NOT, HOWEVER, DEFINE "SHIP." 
THE GOVERNMENT SAYS, "THE VERB 'SHIP' IS AN IMPRECISE WORD MEANING
LITTLE MORE THAN TO SEND OR TO TRANSPORT."  THE TERM, NOT BEING
ARTIFICIALLY DEFINED BY STATUTE, IS FROM THE ORDINARY SPEECH OF
PEOPLE.  ITS IMPRECISION TO LINGUISTS AND SCHOLARS MAY BE CONCEDED. 
BUT IF IT IS COMMON IN THE COURTS, THE MARKET PLACES OR THE SCHOOLS OF
THE COUNTRY TO SPEAK OF SHIPPING A TELEGRAM OR RECEIVING A SHIPMENT OF
TELEGRAMS, WE DO NOT KNOW OF IT, NOR ARE EXAMPLES OF SUCH USAGE CALLED
TO OUR ATTENTION.  NOR, IF ONE DEPARTS FROM THE COMPLAINT IN THE CASE
AND ADOPTS THE THEORY OF THE COURT OF APPEALS, DO WE THINK EITHER
SCIENTIST OR LAYMAN WOULD EVER SPEAK OF "SHIPPING" ELECTRICAL
IMPULSES.  THE FACT IS THAT TO SUSTAIN THE COMPLAINT WE MUST SUPPLY AN
ARTIFICIAL DEFINITION OF "SHIP," ONE WHICH CONGRESS HAD POWER TO ENACT,
BUT DID NOT.  WE DO NOT THINK "SHIP" IN THIS ACT APPLIES TO INTANGIBLE
MESSAGES, WHICH WE DO NOT ORDINARILY SPEAK OF AS BEING "SHIPPED." 

ANOTHER CONSIDERATION CONVINCES US THAT THIS ACT DID NOT CONTEMPLATE
ITS APPLICATION BY INDIRECTION TO SUCH A SITUATION AS WE HAVE IN HAND. 
ITS INDIRECT SANCTIONS ARE WELL ADAPTED TO THE PRODUCER, MINER,
MANUFACTURER, OR HANDLER IN PREPARATION FOR COMMERCE.  THEY BECOME
CLUMSY AND SELF-DEFEATING WHEN APPLIED TO TELEGRAPH COMPANIES,
RAILROADS, INTERSTATE NEWS AGENCIES, AND THE LIKE, AS THIS DECREE
DEMONSTRATES.  THE WESTERN UNION IS NOT FORBIDDEN BY THE DECREE TO
EMPLOY CHILD LABOR, NOR COULD IT BE, FOR IT IS NOT SO FORBIDDEN BY THE
ACT.  AS CONSTRUED BY THE COURTS BELOW, WHAT IS PROHIBITED IS THE
SENDING OF TELEGRAMS - SO LONG AS IT EMPLOYS CHILD LABOR AND FOR A
PERIOD OF THIRTY DAYS AFTER IT QUITS.  THIS, AS THE COMPANY OBSERVES,
IS A SANCTION THAT THE COURT COULD NOT PERMIT TO BECOME EFFECTIVE.  A
SUSPENSION OF TELEGRAPHIC SERVICE FOR ANY PERIOD OF TIME WOULD BE
INTOLERABLE.  OF COURSE, THE GOVERNMENT SAYS, THE COMPANY COULD ESCAPE
ITS EFFECT EXCEPT FOR THE THIRTY-DAY PERIOD BY DISCHARGING SOME TWELVE
PER CENT OF ITS MESSENGERS, WHO ARE UNDER AGE BUT WHOM NEITHER THE
COURT NOR CONGRESS HAS FORBIDDEN IT TO EMPLOY.  IT ALSO SUGGESTS THAT
THE THIRTY-DAY PERIOD MAY BE ABSORBED IN DELAYS.  OR, IT SAYS, THE
DISTRICT COURT OR CIRCUIT COURT OF APPEALS "MAY PROPERLY STAY THE
INJUNCTION FURTHER IN ORDER TO PERMIT THE TRANSMISSION OF MESSAGES
UNTIL PETITIONER HAS A REASONABLE TIME TO COMPLY." 

OF COURSE LITERAL COMPLIANCE COULD BE MADE ONLY BY CEASING TO SEND
MESSAGES, SINCE THAT IS ALL THE DECREE DOES OR COULD COMMAND.  BUT THE
COMPANY COULD AND PROBABLY WOULD AVOID DOING WHAT THE DECREE ORDERS, BY
DOING WHAT IT DOES NOT AND CANNOT ORDER:  VIZ., DISCHARGING THE UNDER
AGE PART OF ITS MESSENGER FORCE.  THIS, HOWEVER, WOULD LEAVE THE THIRTY
DAY PERIOD AFTER OUR MANDATE BECOMES FINAL AND GOES DOWN, DURING WHICH
THE COURTS MUST STAY THE FORCE OF THE INJUNCTION, EITHER CANDIDLY OR BY
DILATORY TACTICS, OR THE COMPANY, BY CONTINUING SERVICE TO THE PUBLIC,
WOULD BE IN CONTEMPT.  EVEN IF THIS WERE DONE, COURTS CANNOT STAY THE
PROVISIONS UNDER WHICH THE SENDING OF MESSAGES DURING SUCH PERIOD IS
MADE CRIMINAL.  WE MAY SUPPOSE THE GOVERNMENT WOULD NOT ACTUALLY
PROSECUTE.  BUT THAT IS ONLY BECAUSE THE SANCTIONS OF THE ACT, IF
APPLIED TO SUCH A SITUATION, ARE SO IMPRACTICAL THAT A VIOLATION
ADJUDGED BY US TO BE PROVEN BY STIPULATION OF THE PARTIES AS TO THE
FACTS WOULD BE WAIVED.  WE THINK IF CONGRESS CONTEMPLATED APPLICATION
OF THIS ACT TO THE WESTERN UNION IT WOULD HAVE PROVIDED SANCTIONS MORE
SUITABLE THAN TO FORBID TELEGRAMS TO BE SENT BY THE ONLY COMPANY
EQUIPPED ON A NATION-WIDE SCALE TO SERVE THE PUBLIC IN SENDING THEM. 
NOR WILL WE BELIEVE WITHOUT MORE EXPRESS TERMS THAN WE FIND HERE THAT
CONGRESS INTENDED THE COURTS TO ISSUE AN INJUNCTION WHICH AS A
PRACTICAL MATTER THEY WOULD HAVE TO LET BECOME A DEAD LETTER, OR
ENFORCE AT SUCH COST TO THE PUBLIC, IF A DEFENDANT PROVED STUBBORN AND
RECALCITRANT.  IF THE INDIRECT SANCTIONS OF THIS ACT WERE LITERALLY TO
BE APPLIED TO GREAT AGENCIES OF TRANSPORTATION AND COMMUNICATION, THE
RECOIL ON THE PUBLIC INTEREST WOULD BE OUT OF ALL PROPORTION TO THE
EVIL SOUGHT TO BE REMEDIED. 

HOWEVER, THE INDIRECT SANCTION OF CUTTING ONE'S GOODS OFF FROM THE
INTERSTATE MARKET IS ONE WHICH CAN BE APPLIED TO PRODUCERS, AS WE HAVE
DEFINED THEM HEREIN, EFFECTIVELY AND WITHOUT INJURY TO THE PUBLIC
INTEREST.  IF SUCH A PRODUCER USING CHILD LABOR IS REFUSED FACILITIES
TO TRANSPORT HIS GOODS, COMPETITORS USUALLY COME IN, NEEDS ARE STILL
SUPPLIED, AND ONLY THE OFFENDER SUFFERS.  THESE INDIRECT SANCTIONS CAN
PRACTICALLY AND LITERALLY BE APPLIED TO THE MINER AND THE MANUFACTURER
WITH NO SUBSTANTIAL RECOIL ON THE PUBLIC INTEREST, AND WITH NO GESTURES
BY THE COURTS THAT THEY CANNOT FOLLOW THROUGH TO PUNISH DISOBEDIENCE. 

ASCERTAINMENT OF THE INTENTION OF CONGRESS IN THIS SITUATION IS
IMPOSSIBLE.  IT IS TO INDULGE IN A FICTION TO SAY THAT IT HAD A
SPECIFIC INTENTION ON A POINT WHICH NEVER OCCURRED TO IT.  HAD THE
OMISSION OF A DIRECT PROHIBITION OF THIS EMPLOYMENT BEEN CALLED TO ITS
ATTENTION, IT MIGHT WELL HAVE SUPPLIED IT, FOR ANY REASON WE CAN SEE. 
CONGRESS OF COURSE HAS THE RIGHT TO BE INDIRECT WHERE IT COULD BE
DIRECT AND TO BE OBSCURE AND CONFUSING WHERE IT COULD BE CLEAR AND
SIMPLE.  BUT HAD IT DETERMINED TO REACH THIS EMPLOYMENT, WE DO NOT
THINK IT WOULD HAVE DONE SO BY ARTIFICE IN PREFERENCE TO PLAIN TERMS. 
IT IS ADMITTED THAT IT IS BEYOND THE JUDICIAL POWER OF INNOVATION TO
SUPPLY A DIRECT PROHIBITION BY CONSTRUCTION.  WE THINK WE SHOULD NOT
TRY TO REACH THE SAME RESULT BY A SERIES OF INTERPRETATIONS SO FAR
FETCHED AND FORCED AS TO BRING INTO QUESTION THE CANDOR OF CONGRESS AS
WELL AS THE INTEGRITY OF THE INTERPRETATIVE PROCESS.  AFTER ALL, THIS
LAW WAS PASSED AS THE RULE BY WHICH EMPLOYERS AND WORKMEN MUST ORDER
THEIR DAILY LIVES.  TO TRANSLATE THIS ACT BY A PROCESS OF
INTERPRETATION INTO AN EQUIVALENT OF THE BILLS CONGRESS REJECTED IS, WE
THINK, BEYOND THE FAIR RANGE OF INTERPRETATION.  DECLINING THAT, WE
CANNOT SUSTAIN THE GOVERNMENT'S BILL OF COMPLAINT.  REVERSED. 

FN1  "'OPPRESSIVE CHILD LABOR' MEANS A CONDITION OF EMPLOYMENT UNDER
WHICH (1) ANY EMPLOYEE UNDER THE AGE OF SIXTEEN YEARS IS EMPLOYED BY AN
EMPLOYER (OTHER THAN A PARENT OR A PERSON STANDING IN PLACE OF A PARENT
EMPLOYING HIS OWN CHILD OR A CHILD IN HIS CUSTODY UNDER THE AGE OF
SIXTEEN YEARS IN AN OCCUPATION OTHER THAN MANUFACTURING OR MINING) IN
ANY OCCUPATION, OR (2) ANY EMPLOYEE BETWEEN THE AGES OF SIXTEEN AND
EIGHTEEN YEARS IS EMPLOYED BY AN EMPLOYER IN ANY OCCUPATION WHICH THE
CHIEF OF THE CHILDREN'S BUREAU IN THE DEPARTMENT OF LABOR SHALL FIND
AND BY ORDER DECLARE TO BE PARTICULARLY HAZARDOUS FOR THE EMPLOYMENT OF
CHILDREN BETWEEN SUCH AGES OR DETRIMENTAL TO THEIR HEALTH OR WELL-BEING
..."  29 U.S.C. SEC. 203(1), JUNE 25, 1938, C. 676, SEC. 3(1), 52
STAT. 1061. 

FN2  THE ACT PROVIDES:  "AFTER THE EXPIRATION OF ONE HUNDRED AND
TWENTY DAYS FROM THE DATE OF ENACTMENT OF THIS ACT, NO PRODUCER,
MANUFACTURER, OR DEALER SHALL SHIP OR DELIVER FOR SHIPMENT IN COMMERCE
ANY GOODS PRODUCED IN AN ESTABLISHMENT SITUATED IN THE UNITED STATES IN
OR ABOUT WHICH WITHIN THIRTY DAYS PRIOR TO THE REMOVAL OF SUCH GOODS
THEREFROM ANY OPPRESSIVE CHILD LABOR HAS BEEN EMPLOYED  ..."  SEC.
12(A), 29 U.S.C. SEC. 212(A).    FN3  "SEC.  7.  IT SHALL BE UNLAWFUL
FOR ANY PERSON, DIRECTLY OR INDIRECTLY - 

"(1)  TO TRANSPORT OR CAUSE TO BE TRANSPORTED IN INTERSTATE COMMERCE,
OR TO AID OR ASSIST IN TRANSPORTING, OR OBTAINING TRANSPORTATION IN
INTERSTATE COMMERCE FOR, OR TO SHIP OR DELIVER OR SELL IN INTERSTATE
COMMERCE, OR TO SHIP OR DELIVER OR SELL WITH KNOWLEDGE THAT SHIPMENT OR
DELIVERY OR SALE THEREOF IN INTERSTATE COMMERCE IS INTENDED, ANY UNFAIR
GOODS; OR 

"(2)  TO EMPLOY UNDER ANY SUBSTANDARD LABOR CONDITIONS ANY EMPLOYEE
ENGAGED IN INTERSTATE COMMERCE OR IN THE PRODUCTION OF GOODS INTENDED
FOR TRANSPORTATION OR SALE IN VIOLATION OF CLAUSE (1) OF THIS
RESPECTIVELY, BY THE SENATE COMMITTEE ON EDUCATION AND LABOR, JULY 6,
1937, AND BY THE HOUSE COMMITTEE ON LABOR, AUGUST 6, 1937.  "UNFAIR
GOODS" WAS DEFINED TO MEAN GOODS PRODUCED BY ANY SUBSTANDARD LABOR
CONDITION, AND THE LATTER WAS DEFINED TO INCLUDE CHILD LABOR.  SECS.
2(A)(11) AND (15). 

FN4  THIS WAS S. 2226, REPORTED IN SEN. REP. NO. 726, 75TH CONG., 1ST
SESS.  IT WAS INCORPORATED INTO THE BLACK BILL JULY 31, 1937, 81 CONG.
REC. 7949-51.  IT PROVIDED:  "SEC.  4(SEC.  27 IN THE AMENDED BLACK
BILL).  IT SHALL BE UNLAWFUL FOR ANY PERSON WHO - 

"(A)  HAS PRODUCED GOODS, WARES, OR MERCHANDISE IN ANY STATE OR
TERRITORY, WHOLLY OR IN PART THROUGH THE USE OF CHILD LABOR, ON OR
AFTER JANUARY 1, 1938; OR 

"(B)  HAS TAKEN DELIVERY OF SUCH GOODS, WARES, OR MERCHANDISE IN ANY
STATE OR TERRITORY WITH NOTICE OF THEIR CHARACTER WHETHER BY PURCHASE
OR ON CONSIGNMENT, AS COMMISSION MERCHANT, AGENT FOR FORWARDING OR
OTHER PURPOSES, OR OTHERWISE, TO TRANSPORT OR CAUSE TO BE TRANSPORTED,
IN ANY MANNER OR BY ANY MEANS WHATSOEVER, OR AID OR ASSIST IN OBTAINING
TRANSPORTATION FOR OR IN TRANSPORTING SUCH GOODS, WARES, OR MERCHANDISE
IN INTERSTATE OR FOREIGN COMMERCE OR TO SELL SUCH GOODS, WARES, OR
MERCHANDISE FOR SHIPMENT IN INTERSTATE OR FOREIGN COMMERCE OR WITH
KNOWLEDGE THAT SHIPMENT THEREOF IN INTERSTATE OR FOREIGN COMMERCE IS
INTENDED."  OTHER PROVISIONS SUBJECTED CHILD-LABOR-MADE GOODS TO THE
LAWS OF THE STATES INTO WHICH THEY WERE SHIPPED REGARDLESS OF THEIR
INTERSTATE CHARACTER, FORBADE TRANSPORTATION INTO STATES IN VIOLATION
OF THEIR LAWS, AND FORBADE SHIPMENT IN INTERSTATE COMMERCE OF GOODS NOT
LABELLED AS TO THEIR CHILD-LABOR CHARACTER.  THE BILL REPRESENTED THE
VIEW THAT SEVERAL METHODS OF CIRCUMVENTING HAMMER V. DAGENHART SHOULD
BE TRIED AT THE SAME TIME, IN CASE ANY SHOULD BE HELD INVALID. 

FN5  SEE S. 2475 AS REPORTED BY HOUSE COMMITTEE ON LABOR, AUGUST 6,
1937, H.R. REP. 1452, 75TH CONG., 1ST SESS. 

FN6  "SEC.  10.  (A).  NO PRODUCER, MANUFACTURER, OR DEALER SHALL
SHIP OR DELIVER FOR SHIPMENT IN COMMERCE ANY GOODS PRODUCED IN AN
ESTABLISHMENT SITUATED IN THE UNITED STATES IN OR ABOUT WHICH WITHIN 30
DAYS PRIOR TO THE REMOVAL OF SUCH GOODS THEREFROM ANY OPPRESSIVE CHILD
LABOR HAS BEEN EMPLOYED  ... 

"(B)  NO EMPLOYER ENGAGED IN COMMERCE IN ANY INDUSTRY AFFECTING
COMMERCE SHALL EMPLOY ANY EMPLOYEE UNDER ANY OPPRESSIVE CHILDLABOR
CONDITION."  83 CONG. REC. 7441; PASSED, ID. AT 7450(75TH CONG., 3D
SESS.). 

FN7  S. 2226, IDENTICAL WITH THE CHILD-LABOR PROVISIONS PREVIOUSLY
INCORPORATED BY THE SENATE IN THE BLACK BILL IN LIEU OF THE LATTER'S
CHILDLABOR PROVISIONS.  SEE NOTE 4, SUPRA.  81 CONG. REC. 9320. 

FN8  CONFERENCE REPORT, H.R. REP. NO. 2738, 75TH CONG., 3D SESS.,
32. 

FN9 SEE 82 CONG. REC. 1411-14, 1597-98, 1691-95, 1780-83, 1822; 83
CONG. REC. 7399-7400. 

FN10  SEE, E.G., JOINT HEARINGS ON FAIR LABOR STANDARDS, SENATE
COMMITTEE ON LABOR AND HOUSE COMMITTEE ON EDUCATION AND LABOR, 75TH
CONG., 1ST SESS., 382-84; HEARINGS ON REGULATION OF CHILD LABOR, SENATE
COMMITTEE ON INTERSTATE COMMERCE, 75TH CONG., 1ST SESS., 60; REMARKS OF
REPRESENTATIVE SCHNEIDER OF THE HOUSE COMMITTEE ON EDUCATION AND LABOR,
82 CONG. REC. 1823, 83 CONG. REC. 7401.  THE CHIEF OF THE CHILDREN'S
BUREAU OF THE DEPARTMENT OF LABOR PRESENTED TO THE SENATE INTERSTATE
COMMERCE COMMITTEE FIGURES, BASED ON THE 1930 CENSUS, SHOWING THE
DISTRIBUTION BY OCCUPATIONS OF CHILD WORKERS BETWEEN 10 AND 15 YEARS:

               OCCUPATION       NUMBER     PER CENT 

AGRICULTURE .................................. 469,497         70.4 

MANUFACTURING AND MECHANICAL INDUSTRIES         68,266         10.2 

TRADE ........................................  49,615          7.4 

DOMESTIC AND PERSONAL SERVICE.................  46,145          7.0 

CLERICAL OCCUPATIONS..........................  16,803     2.5 

TRANSPORTATION ...............................   8,717          1.3 

EXTRACTION OF MINERALS........................   1,184          0.2 

OTHER (INCLUDES PUBLIC AND PROFESSIONAL 

SERVICE, FORESTRY, AND FISHING)...............   6,891          1.0 

HEARINGS, SUPRA, P. 60. 

COMPARABLE FIGURES BASED ON THE 1940 CENSUS (BUT FOR THE AGE GROUP 14
17) ARE AS FOLLOWS:

               OCCUPATION NUMBER     PER CENT 

AGRICULTURE, FORESTRY, FISHING................ 459,966         54.3 

MINING .......................................   2,769          0.3 

CONSTRUCTION .................................  10,476          1.2 

MANUFACTURING ................................ 104,023         12.3 

TRANSPORTATION, COMMUNICATION, AND OTHER 

PUBLIC UTILITIES..............................  12,103          1.4 

TRADE ........................................ 109,687         13.0 

PERSONAL SERVICES ............................ 109,628         13.0 

AMUSEMENT, RECREATION, AND RELATED 

SERVICES .....................................  13,013          1.6 

PROFESSIONAL AND RELATED SERVICES.............  12,128          1.4 

OTHER ........................................  12,944  1.5 

PAMPHLET, 1940 CENSUS DATA ON EMPLOYMENT AND SCHOOL ATTENDANCE OF
MINORS 14 THROUGH 17 YEARS OF AGE (DEPT. OF LABOR, CHILDREN'S BUREAU,
1943) 14. 

SINCE AGRICULTURE WAS EXPRESSLY EXCLUDED (AND THIS WAS TRUE OF ALL
VERSIONS OF CHILD-LABOR LEGISLATION REPORTED TO THE HOUSE AND SENATE),
THE CHILD LABOR CLEARLY COVERED BY THE "PRODUCING GOODS FOR COMMERCE"
FORMULA WAS AT MOST 12-15%, AND MOST OF THE REMAINDER WAS IN
OCCUPATIONS CLEARLY NOT COVERED BY THAT FORMULA, SUCH AS LOCAL
RETAILING AND SERVICE INDUSTRIES.  IN THIS LIGHT, THE OMISSION OF THE
ONE OR TWO PERCENT IN NONPRODUCING INTERSTATE COMMERCE INDUSTRIES, EVEN
IF DELIBERATE, WOULD NOT HAVE BEEN INCONGRUOUS. 

THE FOLLOWING EXCHANGE DURING THE SENATE INTERSTATE COMMERCE
COMMITTEE HEARINGS IS ALSO OF INTEREST, IN VIEW OF THE SENATE'S
REJECTION OF THE BLACK-CONNERY CHILD-LABOR PROVISIONS IN FAVOR OF THE
COMMERCE COMMITTEE PROPOSAL: 

"MISS LENROOT  ....  THERE HAS BEEN A DECIDED SHIFT IN THE EMPLOYMENT
OF CHILDREN BETWEEN THE AGES OF 14 AND 16 YEARS FROM FACTORIES TO
MISCELLANEOUS OCCUPATIONS IN TRADE AND SERVICE INDUSTRIES, WHICH WOULD
NOT BE COVERED BY ANY OF THE BILLS NOW PENDING BEFORE THIS COMMITTEE,
AND WHICH INVOLVE VERY OFTEN EMPLOYMENT OF CHILDREN FOR LONG HOURS AT
VERY LOW WAGES. 

THE CHAIRMAN.  LET ME ASK YOU THIS QUESTION RIGHT THERE:  DO YOU
THINK NEWSBOYS SHOULD BE PROHIBITED FROM WORKING?  I PROPOUND THAT
QUESTION TO YOU BECAUSE IT HAS BEEN PUT UP TO ME. 

MISS LENROOT.  I THINK UNDER ANY POWERS THAT I CAN SEE THAT CONGRESS
HAS OR THAT IT MAY BE CONSTRUED TO HAVE NOW, IT WOULD BE VERY DIFFICULT
IF NOT IMPOSSIBLE TO BRING NEWSBOYS IN. 

THE CHAIRMAN.  BUT DO YOU THINK THEY SHOULD BE PROHIBITED FROM SUCH
EMPLOYMENT? 

MISS LENROOT.  I THINK IF CONGRESS HAD BROAD POWER TO LEGISLATE ON
THE SUBJECT OF CHILD LABOR IT WOULD BE DESIRABLE TO WORK OUT SOME
STANDARD WHICH WOULD BE SOMEWHAT DIFFERENT FROM FACTORY EMPLOYMENT. 

SENATOR MINTON.  IN OTHER WORDS, YOU THINK IT IS IMPROPER TO USE
NEWSBOYS ON THE STREETS TO SELL NEWSPAPERS? 

MISS LENROOT.  UNDER A CERTAIN AGE, AND UNDER CERTAIN CONDITIONS;
YES.  I WOULD MAKE THE AGE SOMEWHAT LOWER THAN THE AGE FOR FACTORY
EMPLOYMENT, HOWEVER." 

HEARINGS, SUPRA, P. 43. 

FN11  THUS SENATOR WHEELER, ONE OF THE AUTHORS OF THE MEASURE ADOPTED
BY THE SENATE, SAID, "WE ARE TRYING TO GIVE YOU SOMETHING OF A
PRACTICAL NATURE THAT CAN BE PASSED, THAT WILL PERHAPS NOT GO AS FAR AS
SOME OF US WOULD LIKE TO SEE IT GO, BUT SOMETHING WHICH WE CAN UPHOLD
AS CONSTITUTIONAL, THAT WILL AFFECT CHILD LABOR, STOP IT, AND PREVENT
IT EFFECTIVELY IN THE FACTORIES, PARTICULARLY IN THE SWEATSHOPS AND
SOUTHERN TEXTILE MILLS."  "WE WANT TO KEEP THEM OUT OF THE FACTORIES
WHERE THEY ARE BEING EXPLOITED AND ARE IN COMPETITION WITH MEN AND IN
COMPETITION WITH WOMEN WHO NEED WORK."  JOINT HEARINGS, SUPRA, NOTE 10,
PP. 33-34, 36.  REPRESENTATIVE SCHNEIDER, WHO WAS APPARENTLY IN CHARGE
OF THE CHILD-LABOR PROVISIONS OF THE LABOR COMMITTEE'S BILL ON THE
FLOOR, REMINDED THE MEMBERS THAT ALTHOUGH THE BILL WENT AS FAR AS IT
COULD, "THE CHILD LABOR THAT IS USED IN THE PRODUCTION OF ARTICLES FOR
INTERSTATE COMMERCE CONSTITUTES ONLY 25 PERCENT OF NONAGRICULTURAL
CHILD LABOR THAT EXISTS TODAY," AND HENCE RATIFICATION OF THE CHILD
LABOR AMENDMENT WAS STILL ESSENTIAL.  82 CONG. REC. 1823.  AND SENATOR
THOMAS, WHO WAS ONE OF THE SENATE MANAGERS IN THE CONFERENCE WHICH
PRODUCED THE FINAL BILL, INTERPRETED THE RESULT OF THE COMPROMISE AS
FOLLOWS IN HIS REPORT TO THE SENATE:  "NEITHER HOUSE NOR SENATE YIELDED
ITS CONVICTIONS, BUT BOTH HOUSES OBTAINED THEIR COMMON OBJECTIVE, WHICH
WAS TO ABOLISH TRAFFIC IN INTERSTATE COMMERCE IN THE PRODUCTS OF CHILD
LABOR AND IN THE PRODUCTS OF UNDERPAID AND OVERWORKED LABOR."  83 CONG.
REC. 9163. 

FN12  SEE GENERALLY THE HEARINGS PRECEDING THE ENACTMENT OF THE CHILD
LABOR ACT OF 1916.  HEARINGS ON H.R. 8234, HOUSE COMMITTEE ON LABOR,
64TH CONG., 1ST SESS.; HEARINGS ON H.R. 8234, SENATE COMMITTEE ON
INTERSTATE COMMERCE, 64TH CONG., 1ST SESS. 

FN13  ACT OF SEPT. 1, 1916, C. 432, SEC. 1, 39 STAT. 675. 

FN14  ACT OF FEB. 24, 1919, C. 18, SEC. 1200, 40 STAT. 1057, 1138. 

FN15  "THE ADMINISTRATOR,  ...  SHALL BY REGULATIONS OR BY ORDERS
PROVIDE FOR (1) THE EMPLOYMENT OF LEARNERS, OF APPRENTICES, AND OF
MESSENGERS EMPLOYED EXCLUSIVELY IN DELIVERING LETTERS AND MESSAGES,
...  AT SUCH WAGES LOWER THAN THE MINIMUM WAGE APPLICABLE UNDER SECTION
6 AND SUBJECT TO SUCH LIMITATIONS AS TO TIME, NUMBER, PROPORTION, AND
LENGTH OF SERVICE AS THE ADMINISTRATOR SHALL PRESCRIBE  ..."  SEC. 14,
29 U.S.C. SEC. 214. 

MR. JUSTICE MURPHY, DISSENTING. 

BY READING INTO THE FAIR LABOR STANDARDS ACT AN EXCEPTION THAT
CONGRESS NEVER INTENDED OR SPECIFIED, THIS COURT HAS TODAY GRANTED THE
WESTERN UNION TELEGRAPH COMPANY A SPECIAL DISPENSATION TO UTILIZE THE
CHANNELS OF INTERSTATE COMMERCE WHILE EMPLOYING ADMITTEDLY OPPRESSIVE
CHILD LABOR.  SUCH A RESULT IS REACHED, TO BORROW THE WORDS OF THE
MAJORITY OPINION, "BY A SERIES OF INTERPRETATIONS SO FAR-FETCHED AND
FORCED AS TO BRING INTO QUESTION THE CANDOR OF CONGRESS AS WELL AS THE
INTEGRITY OF THE INTERPRETATIVE PROCESS." 

THE OPINION OF THE COURT DEMONSTRATES THAT THE LEGISLATIVE HISTORY OF
THE FAIR LABOR STANDARDS ACT IS INCONCLUSIVE INSOFAR AS THE FAILURE TO
INSERT A PROVISION DIRECTLY PROHIBITING CHILD LABOR IN INTERSTATE
COMMERCE IS CONCERNED.  BUT THAT FACTOR IS NEITHER DETERMINATIVE NOR
EVEN SIGNIFICANT IN THE SETTING OF THIS CASE.  THE ISSUE IS NOT WHETHER
THE CHILD LABOR PROVISIONS OF SEC. 12(A) APPLY TO A COMPANY SOLELY
ENGAGED IN INTERSTATE COMMERCE OR IN THE TRANSPORTING OF GOODS IN SUCH
COMMERCE.  RATHER THE CRUCIAL PROBLEM IS WHETHER WESTERN UNION, IN
PREPARING MESSAGES FOR TRANSMISSION IN INTERSTATE COMMERCE, MAY FAIRLY
BE SAID TO BE A "PRODUCER" OF "GOODS" WHICH IT "SHIPS" IN INTERSTATE
COMMERCE SO AS TO COME WITHIN THE PURVIEW OF SEC. 12(A).  THAT WESTERN
UNION MAY ALSO BE THE INTERSTATE TRANSMITTER OF MESSAGES IS BESIDE THE
POINT; IT IS ENOUGH IF IT IS A PRODUCER OF GOODS DESTINED FOR
INTERSTATE SHIPMENT.  INDEED, SEC. 15(A)(1) EXPRESSLY ENVISAGES JUST
SUCH A SITUATION.  IT PROVIDES IN PART THAT NO COMMON CARRIER SHALL BE
LIABLE UNDER THIS ACT "FOR THE TRANSPORTATION IN COMMERCE IN THE
REGULAR COURSE OF ITS BUSINESS OF ANY GOODS NOT PRODUCED BY SUCH COMMON
CARRIER," THEREBY RECOGNIZING THAT IF A CARRIER IS ACTUALLY THE
"PRODUCER" OF THE "GOODS" IT TRANSPORTS IT MAY BE VISITED WITH THE
LIABILITIES OF SEC. 12(A). 

IN APPROACHING THE PROBLEM OF WHETHER WESTERN UNION IS A PRODUCER OF
GOODS SHIPPED IN INTERSTATE COMMERCE WE SHOULD NOT BE UNMINDFUL OF THE
HUMANITARIAN PURPOSES WHICH LED CONGRESS TO ADOPT SEC. 12(A). 
OPPRESSIVE CHILD LABOR IN ANY INDUSTRY IS A REVERSION TO AN OUTMODED
AND DEGENERATE CODE OF ECONOMIC AND SOCIAL BEHAVIOR.  IN THE WORDS OF
THE CHIEF EXECUTIVE, "A SELF-SUPPORTING AND SELF-RESPECTING DEMOCRACY
CAN PLEAD NO JUSTIFICATION FOR THE EXISTENCE OF CHILD LABOR....  ALL
BUT THE HOPELESSLY REACTIONARY WILL AGREE THAT TO CONSERVE OUR PRIMARY
RESOURCES OF MAN POWER, GOVERNMENT MUST HAVE SOME CONTROL OVER  ...
THE EVIL OF CHILD LABOR...."  MESSAGE OF THE PRESIDENT TO CONGRESS, MAY
24, 1937, HOUSE DOC. NO. 255(75TH CONG., 1ST SESS.) P. 2.  CONGRESS
SOUGHT IN SEC. 12(A) TO TRANSLATE THESE SENTIMENTS FROM RHETORIC TO
LAW.  THAT IT MAY NOT HAVE DONE SO TO THE FULL LIMITS OF ITS
CONSTITUTIONAL POWER IS NOT OF CONTROLLING SIGNIFICANCE HERE.  IT
MATTERS ONLY THAT COURTS SHOULD NOT DISREGARD THE LEGISLATIVE MOTIVE IN
INTERPRETING AND APPLYING THE STATUTORY PROVISIONS THAT WERE ADOPTED. 
IF THE EXISTENCE OF OPPRESSIVE CHILD LABOR IN A PARTICULAR INSTANCE
FALLS WITHIN THE OBVIOUS INTENT AND SPIRIT OF SEC. 12(A), WE SHOULD NOT
BE TOO METICULOUS AND EXACTING IN DEALING WITH THE STATUTORY LANGUAGE. 
TO SACRIFICE SOCIAL GAINS FOR THE SAKE OF GRAMMATICAL PERFECTION IS NOT
IN KEEPING WITH THE HIGH TRADITIONS OF THE INTERPRETATIVE PROCESS. 
THE LANGUAGE OF SEC. 12(A), WHEN VIEWED REALISTICALLY AND WITH DUE
REGARD FOR ITS PURPOSE, COMPELS THE CONCLUSION THAT WESTERN UNION HAS
BEEN GUILTY OF A VIOLATION OF THE CHILD LABOR PROVISIONS.  OPPRESSIVE
CHILD LABOR CONDITIONS ARE ADMITTED AND THE ONLY ISSUE CONCERNS THE
APPLICATION OF THE WORDS "GOODS," "PRODUCER" AND "SHIPS" TO THE
ACTIVITIES OF WESTERN UNION. 

1. THE OPINION OF THE MAJORITY CONCEDES THAT TELEGRAPHIC MESSAGES ARE
"SUBJECTS OF COMMERCE," GIBBONS V. OGDEN, 9 WHEAT.  1, 229-230, AND
HENCE ARE "GOODS" AS DEFINED IN SEC. 3(I) OF THE ACT.    2.  THE
MAJORITY HOLDS, HOWEVER, THAT WESTERN UNION IS NOT A "PRODUCER" OF
GOODS, EVEN THOUGH THE TERM "PRODUCED" IS DEFINED IN SEC. 3(J) TO
INCLUDE "HANDLED, OR IN ANY MANNER WORKED ON."  IT FURTHER HOLDS THAT
THE WORDS "HANDLED" OR "WORKED ON" REFER ONLY TO INCIDENTAL OPERATIONS
PREPARATORY TO PUTTING GOODS IN THE STREAM OF COMMERCE AND THAT THEY
CANNOT RELATE TO A "HANDLING" OR "WORKING ON" WHICH ACCOMPLISHES THE
INTERSTATE MOVEMENT IN COMMERCE ITSELF (WHICH IS SAID TO CHARACTERIZE
WESTERN UNION'S ACTIVITIES).  EVEN IF WE ASSUME THAT THIS DISTINCTION
IS CORRECT, HOWEVER, IT DOES NOT PRECLUDE WESTERN UNION FROM BEING
DESCRIBED AS A "PRODUCER."  CONTRARY TO THE VIEW EXPRESSED IN THE
MAJORITY OPINION, THE GOVERNMENT DOES NOT GROUND ITS CASE IN THIS
RESPECT ON A CLAIM THAT MERE TRANSPORTATION OF GOODS BY A CARRIER SUCH
AS WESTERN UNION CONSTITUTES A "HANDLING" OR "WORKING ON" SO AS TO MAKE
THAT CARRIER A PRODUCER.  THE CONTENTION, RATHER, IS THAT WESTERN UNION
EMPLOYEES, PRIOR TO THE INTRODUCTION OF THE MESSAGES INTO INTERSTATE
COMMERCE, "WORK ON" AND "HANDLE" THE MESSAGES.  AND THAT CONTENTION
WOULD SEEM TO BE JUSTIFIED BY THE FACTS. 

BEFORE THE MESSAGES ACTUALLY MOVE IN COMMERCE, WESTERN UNION
EMPLOYEES AID IN THE COMPOSITION OF THE MESSAGES, WRITE THEM ON BLANKS,
MARK THE WRITTEN MESSAGES, TRANSFORM THEM INTO ELECTRIC IMPULSES AND
PERFORM NUMEROUS OTHER INCIDENTAL TASKS.  IN A VERY REAL AND LITERAL
SENSE, THEREFORE, THEY "HANDLE" AND "WORK ON" A MESSAGE BEFORE IT
ENTERS THE CHANNELS OF INTERSTATE COMMERCE.  THE UNIQUENESS OF WESTERN
UNION INSOFAR AS IT ACTS ALSO AS THE INTERSTATE CARRIER OF THESE
MESSAGES DOES NOT NEGATIVE THE FACT THAT IT ACTUALLY PROCESSES AND
HENCE "PRODUCES" THE MESSAGES AS A PREFACE TO THAT INTERSTATE TRANSIT. 

3.  FINALLY, THE MAJORITY DOES NOT THINK THAT THE VERB "SHIP" IS
APPLICABLE TO THE TRANSMISSION EITHER OF ELECTRICAL IMPULSES OR
INTANGIBLE MESSAGES AND HENCE WESTERN UNION DOES NOT "SHIP" GOODS IN
COMMERCE WITHIN THE MEANING OF SEC. 12(A).  AS A MATTER OF LINGUISTIC
PURISM, THIS CONCLUSION IS NOT WITHOUT REASONABLENESS.  BUT PROPER
RESPECT FOR THE LEGISLATIVE INTENT AND THE INTERPRETATIVE PROCESS DOES
NOT DEMAND FASTIDIOUS ADHERENCE TO LINGUISTIC PURISM.  THIS COURT DOES
NOT REQUIRE THAT CONGRESS SPELL OUT ALL TYPES OF "GOODS" OR "SUBJECTS
OF COMMERCE" THAT MOVE IN INTERSTATE COMMERCE; NO MORE SHOULD IT
REQUIRE THAT CONGRESS SPELL OUT EVERY VERB THAT MAY BE IN USAGE AS TO
VARIOUS GOODS OR SUBJECTS OF COMMERCE.  IF THE VERB ACTUALLY USED BY
CONGRESS MAY FAIRLY BE INTERPRETED TO COVER THE PARTICULAR SITUATION IN
A MANNER NOT AT VARIANCE WITH THE INTENT AND SPIRIT OF THE STATUTE, NO
SOUND RULE OF LAW FORBIDS SUCH AN INTERPRETATION. 

AS A MATTER OF FACT, IT IS UNNECESSARY TO STRAIN REALITY IN ORDER TO
APPLY THE VERB "SHIP" TO THE TRANSMISSION OF TELEGRAPH MESSAGES.  THE
VERB IS DEFINED BY COMPETENT AUTHORITY TO MEAN "TO TRANSPORT, OR COMMIT
FOR TRANSPORTATION."  WEBSTER'S NEW INTERNATIONAL DICTIONARY (2D ED.). 
THIS COURT ITSELF HAS REFERRED TO TELEGRAPH COMPANIES AS ENGAGED IN
"TRANSPORTATION" OF MESSAGES.  WESTERN UNION TEL. CO. V. TEXAS, 105
U.S. 460, 464.  SINCE MESSAGES ARE "GOODS" AND SINCE WESTERN UNION IS
THE "PRODUCER" OF THEM, THERE IS NO DIFFICULTY IN SAYING THAT IT
"SHIPS" OR "TRANSPORTS" THE MESSAGES IN COMMERCE WHEN ITS EMPLOYEES
SEND THEM ACROSS STATE LINES. 

SUCH AN INTERPRETATION AND APPLICATION OF THE CLEAR STATUTORY WORDS
ARE NOT ONLY REALISTIC BUT ARE IN OBVIOUS ACCORD WITH THE STATUTORY
POLICY OF ELIMINATING OPPRESSIVE CHILD LABOR IN INDUSTRIES TRANSPORTING
GOODS AND SUBJECTS OF COMMERCE ACROSS STATE LINES.  THE NATURAL EASE
WITH WHICH THESE WORDS FIT THE ACTIVITIES OF WESTERN UNION ADDS WEIGHT
TO THE CONCLUSION THAT SEC. 12(A) COVERS JUST SUCH A SITUATION AS
THIS.  THERE IS NOTHING IN THE STATUTE OR IN ITS LEGISLATIVE BACKGROUND
TO SUGGEST THAT TELEGRAPH COMPANIES ARE EXEMPT AND THE CONSISTENT
ADMINISTRATIVE ATTITUDE HAS BEEN THAT NO SUCH EXEMPTION EXISTS.  CHILD
LABOR REGULATION NO. 3, ISSUED BY THE CHIEF OF THE CHILDREN'S BUREAU,
U.S. DEPARTMENT OF LABOR, MAY 8, 1939; WAGE AND HOUR FIELD
INSTRUCTIONS, JUNE 4, 1942.  IT IS INDISPUTABLE THAT THE EVILS OF
OPPRESSIVE CHILD LABOR ALLOW NO DISTINCTION IN FAVOR OF THE EMPLOYMENT
OF TELEGRAPH MESSENGERS OF TENDER YEARS.  CF. UNITED STATES V.
ROSENWASSER, 323 U.S. 360.  INDEED, THE REFERENCE TO MESSENGERS IN SEC.
14 OF THE ACT IS EVIDENCE OF AN AWARENESS BY CONGRESS THAT THE ACT
WOULD REACH SUCH PERSONS.  IF CONGRESS FOUND IT NECESSARY TO PROVIDE IN
SEC. 14 FOR CERTAIN EXCEPTIONS AS TO MINIMUM WAGES FOR MESSENGERS, IT
SEEMS CLEAR THAT CONGRESS THOUGHT THAT ALL OTHER APPROPRIATE PROVISIONS
OF THE ACT APPLIED TO ALL MESSENGERS ABSENT SPECIFIC EXCEPTIONS. 
MOREOVER, EVEN SEC. 14 MAKES NO DISTINCTION BETWEEN MESSENGERS WORKING
IN AND ABOUT MANUFACTURING ESTABLISHMENTS SHIPPING GOODS IN COMMERCE,
WHO PRESUMABLY STILL COME WITHIN THE PROVISIONS OF SEC. 12(A) UNDER THE
MAJORITY'S VIEW, AND THOSE EMPLOYED BY TELEGRAPH COMPANIES.  UNDER
THESE CIRCUMSTANCES WE ARE NOT JUSTIFIED IN DELINEATING AN EXCEPTION TO
SEC. 12(A) THAT CONGRESS ITSELF DID NOT SEE FIT TO MAKE EXPLICITLY. 

A WORD NEED BE SAID ABOUT THE COURT'S FEAR OF ENFORCING SEC. 12(A)
AGAINST WESTERN UNION.  PURSUANT TO THE CONGRESSIONAL MANDATE, THE
TRIAL COURT ENJOINED WESTERN UNION FROM TRANSMITTING OR DELIVERING FOR
TRANSMISSION IN COMMERCE "TELEGRAPH OR OTHER MESSAGES OR ANY OTHER
GOODS" PRODUCED BY IT IN ANY ESTABLISHMENT IN OR ABOUT WHICH WITHIN 30
DAYS PRIOR TO THE TRANSMISSION THERE SHALL HAVE BEEN EMPLOYED ANY
OPPRESSIVE CHILD LABOR.  IT IS SAID, HOWEVER, THAT THIS IS A SANCTION
THAT WE DARE NOT PERMIT TO BECOME EFFECTIVE SINCE THE SUSPENSION OF
TELEGRAPHIC SERVICE FOR 30 DAYS WOULD BE INTOLERABLE.  SUCH A SANCTION
IS SAID TO BE WELL ADAPTED TO THE PRODUCER, MINER, MANUFACTURER OR
HANDLER BUT CLUMSY AND SELF-DEFEATING WHEN APPLIED TO TELEGRAPH
COMPANIES, RAILROADS AND THE LIKE.  CONVINCED BY THESE CONSIDERATIONS
THAT THE ACT DID NOT CONTEMPLATE ITS APPLICATION TO THIS SITUATION, THE
COURT PROCEEDS TO CARVE OUT A JUDICIAL EXCEPTION TO SEC. 12(A) FOR ALL
INTERSTATE CARRIERS. 

HOWEVER MUCH WE MAY DISLIKE THE IMPOSITION OF CONGRESSIONAL SANCTIONS
AGAINST A PARTICULAR INDUSTRY OR FIELD OF ENDEAVOR, THE JUDICIAL
FUNCTION DOES NOT ALLOW US TO DISREGARD THAT WHICH CONGRESS HAS PLAINLY
AND CONSTITUTIONALLY DECREED AND TO FORMULATE EXCEPTIONS WHICH WE
THINK, FOR PRACTICAL REASONS, CONGRESS MIGHT HAVE MADE HAD IT THOUGHT
MORE ABOUT THE PROBLEM.  TO READ IN EXCEPTIONS BASED UPON THE NATURE OR
IMPORTANCE OF THE PARTICULAR INDUSTRY OR CORPORATION IS DANGEROUS
PRECEDENT.  IF THE SUSPENSION OF TELEGRAPHIC SERVICE FOR 30 DAYS IS SO
INTOLERABLE AS TO JUSTIFY LIFTING THE BURDEN OF SEC. 12(A) FROM THE
SHOULDERS OF WESTERN UNION, CAN IT NOT BE ARGUED WITH EQUAL FERVOR THAT
A 30-DAY INJUNCTION AGAINST INTERSTATE SHIPMENTS BY AN AIRPLANE
MANUFACTURER, A MUNITIONS PLANT OR SOME OTHER INDUSTRY VITAL TO A WAR
OR PEACE TIME ECONOMY WOULD BE LIKEWISE INTOLERABLE?  WHAT VALID
DISTINCTION IN THIS RESPECT IS THERE BETWEEN INTERSTATE CARRIERS AND
MANUFACTURERS OR PRODUCERS?  MOREOVER, ARE WE TO EXAMINE THE
COMPETITIVE SITUATION OR DEGREE OF IMPORTANCE OF A PARTICULAR COMPANY
TO DETERMINE THE AMOUNT OF INTOLERABLENESS WHICH A SUSPENSION OF
INTERSTATE TRANSPORTATION MIGHT ENGENDER?  THESE AND COUNTLESS OTHER
LEGISLATIVE PROBLEMS PRESENT THEMSELVES WHEN WE EMBARK UPON A COURSE OF
FASHIONING EXCEPTIONS TO A STATUTE ACCORDING TO OUR OWN CONCEPTIONS OF
APPROPRIATENESS OF THE SANCTIONS OF AN ACT.  SUCH A COURSE IS AN OPEN
INVITATION TO WHOLESALE VETO OF VALID AND REASONABLE LEGISLATIVE
PROVISIONS BY MEANS OF JUDICIAL REFUSAL TO APPLY STATUTORY ENFORCEMENT
MEASURES.  ADHERENCE TO THE SOUND RULE THAT INEQUITIES AND HARDSHIPS
ARISING FROM STATUTORY SANCTIONS ARE FOR CONGRESS RATHER THAN THE
COURTS TO REMEDY BY WAY OF AMENDMENT TO THE STATUTE IS DESIRABLE AND
NECESSARY IN SUCH A SITUATION. 

WE ARE CHARGED WITH THE DUTY OF INTERPRETING AND APPLYING ACTS OF
CONGRESS IN ACCORDANCE WITH THE LEGISLATIVE INTENT.  COURTS ARE NOT SO
IMPOTENT THAT THEY CANNOT PERFORM THAT DUTY AND, AT THE SAME TIME,
GRANT STAYS OR OTHER APPROPRIATE RELIEF IN THE PUBLIC INTEREST SHOULD
THE OCCASION DEMAND IT.  SEE STANDARD OIL CO. V. UNITED STATES, 221
U.S. 1, 81; UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 187,
188.  THUS IF THE INJUNCTION IS GRANTED HERE AGAINST WESTERN UNION, WE
WILL HAVE VINDICATED TO THAT EXTENT THE PUBLIC POLICY AGAINST
OPPRESSIVE CHILD LABOR.  IF A 30-DAY SUSPENSION OF TELEGRAPH MESSAGES
WOULD UNDULY HARM THE PUBLIC INTEREST, A STAY OF THE MANDATE OR OF THE
INJUNCTION CAN BE GRANTED UNTIL AT LEAST 30 DAYS HAVE ELAPSED DURING
WHICH NO OPPRESSIVE CHILD LABOR HAS BEEN EMPLOYED BY WESTERN UNION. 
THUS BY FASHIONING REMEDIES THROUGH INJUNCTIONS AND STAYS WE CAN AID IN
THE ELIMINATION OF OPPRESSIVE CHILD LABOR WITHOUT UNDUE HARDSHIP ON THE
PUBLIC.  THIS CAN AND SHOULD BE DONE WITHOUT ABDICATING OUR JUDICIAL
FUNCTION AND ASSUMING THE ROLE OF THE LEGISLATURE. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN
IN THIS DISSENT. 
..END :















THOMAS V. COLLINS, 323 U.S. 516 


NO. 14.  ARGUED MAY 1, 1944.  REARGUED OCTOBER 11, 1944.  - DECIDED
JANUARY 8, 1945.  - 141 TEX. 591, 174 S.W.2D 958, REVERSED. 


1.  A STATUTE OF TEXAS REQUIRES LABOR ORGANIZERS TO REGISTER WITH AND
PROCURE AN ORGANIZER'S CARD FROM A DESIGNATED STATE OFFICIAL BEFORE
SOLICITING MEMBERSHIPS IN LABOR UNIONS.  WHILE A STATE COURT ORDER
RESTRAINING THE APPELLANT FROM VIOLATING THE STATUTE WAS IN EFFECT, HE
MADE A SPEECH BEFORE AN ASSEMBLAGE OF WORKERS.  AT THE END OF HIS
SPEECH HE URGED HIS HEARERS GENERALLY TO JOIN A UNION, AND ALSO ASKED
AN INDIVIDUAL BY NAME TO BECOME A MEMBER.  APPELLANT WAS SENTENCED TO A
FINE AND IMPRISONMENT FOR CONTEMPT.  HELD: 

(A)  UPON THE RECORD, THE PENALTY FOR CONTEMPT MUST BE TREATED AS
HAVING BEEN IMPOSED IN RESPECT OF BOTH THE GENERAL AND THE SPECIFIC
INVITATIONS, AND THE JUDGMENT OF CONTEMPT MUST BE AFFIRMED AS TO BOTH
OR NEITHER.  P. 528. 

ON THE QUESTION WHETHER A RESTRICTION COULD BE SUSTAINED IN RESPECT
OF THE APPELLANT'S SOLICITATION OF THE INDIVIDUAL, IF CONSIDERED
SEPARATELY, THE COURT EXPRESSES NO OPINION. 

(B)  AS APPLIED IN THIS CASE, THE STATUTE IMPOSED A PREVIOUS
RESTRAINT UPON APPELLANT'S RIGHTS OF FREE SPEECH AND FREE ASSEMBLY, IN
VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS OF THE FEDERAL
CONSTITUTION.  P. 532. 

(C)  A REQUIREMENT THAT ONE REGISTER BEFORE MAKING A PUBLIC SPEECH TO
ENLIST SUPPORT FOR A LAWFUL MOVEMENT IS INCOMPATIBLE WITH THE
GUARANTIES OF THE FIRST AMENDMENT.  P. 540. 

2.  THE TASK OF DRAWING THE LINE BETWEEN THE FREEDOM OF THE
INDIVIDUAL AND THE POWER OF THE STATE IS MORE DELICATE THAN USUAL WHERE
THE PRESUMPTION SUPPORTING LEGISLATION IS BALANCED BY THE PREFERRED
POSITION OF THE FREEDOMS SECURED BY THE FIRST AMENDMENT.  P. 529. 

3.  RESTRICTION OF THE LIBERTIES GUARANTEED BY THE FIRST AMENDMENT
CAN BE JUSTIFIED ONLY BY CLEAR AND PRESENT DANGER TO THE PUBLIC
WELFARE.  P. 530. 

4.  THE RATIONAL CONNECTION BETWEEN THE REMEDY PROVIDED AND THE EVIL
TO BE CURBED, WHICH IN OTHER CONTEXTS MIGHT SUPPORT LEGISLATION AGAINST
ATTACK ON DUE PROCESS GROUNDS, WILL NOT IN ITSELF SUFFICE TO SUSTAIN A
RESTRICTION OF THE LIBERTIES GUARANTEED BY THE FIRST AMENDMENT.  P.
530. 

5.  FREEDOM OF SPEECH AND OF THE PRESS, AND THE RIGHTS OF THE PEOPLE
PEACEABLY TO ASSEMBLE AND TO PETITION FOR REDRESS OF GRIEVANCES, ARE
COGNATE RIGHTS.  P. 530. 

6.  THE FIRST AMENDMENT'S SAFEGUARDS ARE NOT INAPPLICABLE TO BUSINESS
OR ECONOMIC ACTIVITY.  P. 531. 

7.  STATE REGULATION OF LABOR UNIONS, WHETHER AIMED AT FRAUD OR OTHER
ABUSES, MUST NOT INFRINGE CONSTITUTIONAL RIGHTS OF FREE SPEECH AND FREE
ASSEMBLY.  P. 532. 

THOMAS V. COLLINS, SHERIFF. 

APPEAL FROM THE SUPREME COURT OF TEXAS. 

APPEAL FROM A JUDGMENT IN A HABEAS CORPUS PROCEEDING WHICH SUSTAINED
THE COMMITMENT OF THE APPELLANT FOR CONTEMPT. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE APPEAL IS FROM A DECISION OF THE SUPREME COURT OF TEXAS WHICH
DENIED APPELLANT'S PETITION FOR A WRIT OF HABEAS CORPUS AND REMANDED
HIM TO THE CUSTODY OF APPELLEE, AS SHERIFF OF TRAVIS COUNTY.  141 TEX.
591, 174 S.W.2D 958.  IN SO DECIDING THE COURT UPHELD, AS AGAINST
CONSTITUTIONAL AND OTHER OBJECTIONS, APPELLANT'S COMMITMENT FOR
CONTEMPT FOR VIOLATING A TEMPORARY RESTRAINING ORDER ISSUED BY THE
DISTRICT COURT OF TRAVIS COUNTY.  THE ORDER WAS ISSUED EX PARTE AND IN
TERMS RESTRAINED APPELLANT, WHILE IN TEXAS, FROM SOLICITING MEMBERS FOR
OR MEMBERSHIPS IN SPECIFIED LABOR UNIONS AND OTHERS AFFILIATED WITH THE
CONGRESS OF INDUSTRIAL ORGANIZATIONS, WITHOUT FIRST OBTAINING AN
ORGANIZER'S CARD AS REQUIRED BY HOUSE BILL NO. 100, C. 104, GENERAL AND
SPECIAL LAWS OF TEXAS, REGULAR SESSION, 48TH LEGISLATURE (1943).  AFTER
THE ORDER WAS SERVED, APPELLANT ADDRESSED A MASS MEETING OF WORKERS AND
AT THE END OF HIS SPEECH ASKED PERSONS PRESENT TO JOIN A UNION.  FOR
THIS HE WAS HELD IN CONTEMPT, FINED AND SENTENCED TO A SHORT
IMPRISONMENT. 

THE CASE HAS BEEN TWICE ARGUED HERE.  EACH TIME APPELLANT HAS
INSISTED, AS HE DID IN THE STATE COURTS, THAT THE STATUTE AS IT HAS
BEEN APPLIED TO HIM IS IN CONTRAVENTION OF THE FOURTEENTH AMENDMENT, AS
IT INCORPORATES THE FIRST, IMPOSING A PREVIOUS RESTRAINT UPON THE
RIGHTS OF FREEDOM OF SPEECH AND FREE ASSEMBLY, AND DENYING HIM THE
EQUAL PROTECTION OF THE LAWS.  HE URGES ALSO THAT THE APPLICATION MADE
OF THE STATUTE IS INCONSISTENT WITH THE PROVISIONS OF THE NATIONAL
LABOR RELATIONS ACT, 49 STAT. 449, AND OTHER OBJECTIONS WHICH NEED NOT
BE CONSIDERED.  FOR REASONS TO BE STATED WE THINK THE STATUTE AS IT WAS
APPLIED IN THIS CASE IMPOSED PREVIOUS RESTRAINT UPON APPELLANT'S RIGHTS
OF FREE SPEECH AND FREE ASSEMBLY AND THE JUDGMENT MUST BE REVERSED. 

THE PERTINENT STATUTORY PROVISIONS, SECS. 5 AND 12, ARE PART OF
TEXAS' COMPREHENSIVE SCHEME FOR REGULATING LABOR UNIONS AND THEIR
ACTIVITIES.  THEY ARE SET FORTH IN THE MARGIN.  FN1

                I 

THE FACTS ARE SUBSTANTIALLY UNDISPUTED.  THE APPELLANT, THOMAS, IS
THE PRESIDENT OF THE INTERNATIONAL UNION U.A.W. (UNITED AUTOMOBILE,
AIRCRAFT AND AGRICULTURAL IMPLEMENTS WORKERS) AND A VICE PRESIDENT OF
THE C.I.O.  HIS DUTIES ARE MANIFOLD, BUT IN ADDITION TO EXECUTIVE
FUNCTIONS THEY INCLUDE GIVING AID AND DIRECTION IN ORGANIZING CAMPAIGNS
AND BY HIS OWN STATEMENT SOLICITING MEMBERS, GENERALLY OR IN PARTICULAR
INSTANCES, FOR HIS ORGANIZATIONS AND THEIR AFFILIATED UNIONS.  HE
RECEIVES A FIXED ANNUAL SALARY AS PRESIDENT OF THE U.A.W., RESIDES IN
DETROIT, AND TRAVELS WIDELY THROUGH THE NATION IN PERFORMING HIS WORK. 

O.W.I.U. (OIL WORKERS INDUSTRIAL UNION), A C.I.O. AFFILIATE, IS THE
PARENT ORGANIZATION OF MANY LOCAL UNIONS IN TEXAS, HAVING ITS PRINCIPAL
OFFICE IN FORT WORTH.  ONE OF THESE IS LOCAL NO. 1002, WITH OFFICES IN
HARRIS COUNTY AND MEMBERSHIP CONSISTING LARGELY OF EMPLOYEES OF THE
HUMBLE OIL & REFINING COMPANY'S PLANT AT BAY TOWN, TEXAS, NOT FAR FROM
HOUSTON.  DURING AND PRIOR TO SEPTEMBER, 1943, C.I.O. AND O.W.I.U. WERE
ENGAGED IN A CAMPAIGN TO ORGANIZE THE EMPLOYEES AT THIS PLANT INTO
LOCAL NO. 1002, AFTER AN ORDER PREVIOUSLY MADE BY THE NATIONAL LABOR
RELATIONS BOARD FOR THE HOLDING OF AN ELECTION.  AS PART OF THE
CAMPAIGN A MASS MEETING WAS ARRANGED FOR THE EVENING OF SEPTEMBER 23,
UNDER THE AUSPICES OF O.W.I.U., AT THE CITY HALL IN PELLY, HARRIS
COUNTY, NEAR THE BAY TOWN PLANT.  WIDE PUBLICITY WAS GIVEN TO THE
MEETING BEFOREHAND.  ARRANGEMENTS WERE MADE FOR THOMAS TO COME TO TEXAS
TO ADDRESS IT AND WIDE NOTICE WAS GIVEN TO HIS ANNOUNCED INTENTION OF
DOING SO. 

THOMAS ARRIVED IN HOUSTON THE EVENING OF SEPTEMBER 21.  HE TESTIFIED
WITHOUT CONTRADICTION THAT HIS ONLY OBJECT IN COMING TO HOUSTON WAS TO
ADDRESS THIS MEETING, THAT HE DID NOT INTEND TO REMAIN THERE AFTERWARD
AND THAT HE HAD RETURN RAIL RESERVATIONS FOR LEAVING THE STATE WITHIN
TWO DAYS.  AT ABOUT 2:30 O'CLOCK ON THE AFTERNOON OF THURSDAY,
SEPTEMBER 23, ONLY SOME SIX HOURS BEFORE HE WAS SCHEDULED TO SPEAK,
THOMAS WAS SERVED WITH THE RESTRAINING ORDER AND A COPY OF THE FIAT. 

THESE HAD BEEN ISSUED EX PARTE BY THE DISTRICT COURT OF TRAVIS COUNTY
(WHICH SITS AT AUSTIN, THE STATE CAPITAL, LOCATED ABOUT 170 MILES FROM
HOUSTON) ON THE AFTERNOON OF SEPTEMBER 22, IN A PROCEEDING INSTITUTED
PURSUANT TO SEC. 12 BY THE STATE'S ATTORNEY GENERAL.  THE PETITION FOR
THE ORDER SHOWS ON ITS FACE IT WAS FILED IN ANTICIPATION OF THOMAS'
SCHEDULED SPEECH.  FN2  AND THE TERMS OF THE ORDER SHOW THAT IT WAS
ISSUED IN ANTICIPATION OF THE MEETING AND THE SPEECH.  FN3 

UPON RECEIVING SERVICE, THOMAS CONSULTED HIS ATTORNEYS AND DETERMINED
TO GO AHEAD WITH THE MEETING AS PLANNED.  HE DID SO BECAUSE HE REGARDED
THE LAW AND THE CITATION AS A RESTRAINT UPON FREE SPEECH AND FREE
ASSEMBLY IN SO FAR AS THEY PREVENTED HIS MAKING A SPEECH OR ASKING
SOMEONE TO JOIN A UNION WITHOUT HAVING A LICENSE OR ORGANIZER'S CARD AT
THE TIME. 

ACCORDINGLY, THOMAS WENT TO THE MEETING, ARRIVING ABOUT 8:00 P.M.,
AND, WITH OTHER SPEAKERS, INCLUDING MASSENGALE AND CROSSLAND, BOTH
UNION REPRESENTATIVES, ADDRESSED AN AUDIENCE OF SOME 300 PERSONS.  THE
MEETING WAS ORDERLY AND PEACEFUL.  THOMAS, IN VIEW OF THE UNUSUAL
CIRCUMSTANCES, HAD PREPARED A MANUSCRIPT ORIGINALLY INTENDED, ACCORDING
TO HIS STATEMENT, TO EMBODY HIS ENTIRE ADDRESS.  HE READ THE MANUSCRIPT
TO THE AUDIENCE.  IT DISCUSSED, AMONG OTHER THINGS, THE STATE'S EFFORT,
AS THOMAS CONCEIVED IT, TO INTERFERE WITH HIS RIGHT TO SPEAK AND CLOSED
WITH A GENERAL INVITATION TO PERSONS PRESENT NOT MEMBERS OF A LABOR
UNION TO JOIN LOCAL NO. 1002 AND THEREBY SUPPORT THE LABOR MOVEMENT
THROUGHOUT THE COUNTRY.  AS WRITTEN, THE SPEECH DID NOT ADDRESS THE
INVITATION TO ANY SPECIFIC INDIVIDUAL BY NAME OR OTHERWISE.  FN4  BUT
THOMAS TESTIFIED THAT HE ADDED, AT THE CONCLUSION OF THE WRITTEN
SPEECH, AN ORAL SOLICITATION OF ONE PAT O'SULLIVAN, A NONUNION MAN IN
THE AUDIENCE WHOM HE PREVIOUSLY HAD NEVER SEEN.  FN5 

AFTER THE MEETING THOMAS, WITH TWO OF THE OTHER UNION SPEAKERS, WAS
ARRESTED AND TAKEN BEFORE A JUSTICE OF THE PEACE.  COMPLAINTS WERE
FILED IN CRIMINAL PROCEEDINGS, PRESUMABLY PURSUANT TO SEC. 11.  THOMAS
WAS RELEASED ON BOND, RETURNED TO HIS HOTEL, AND THE NEXT MORNING LEFT
FOR DALLAS.  THERE HE LEARNED AN ATTACHMENT FOR HIS ARREST HAD BEEN
ISSUED AT AUSTIN BY THE TRAVIS COUNTY DISTRICT COURT, PURSUANT TO THE
ATTORNEY GENERAL'S MOTION FILED THAT MORNING IN CONTEMPT PROCEEDINGS
FOR VIOLATION OF THE TEMPORARY RESTRAINING ORDER.  FN6 

ON THE EVENING OF SEPTEMBER 24, THOMAS WENT TO AUSTIN FOR THE HEARING
UPON THE TEMPORARY INJUNCTION SET FOR THE MORNING OF THE 25TH.  AT THIS
TIME HE APPEARED AND MOVED FOR DISMISSAL OF THE COMPLAINT, FOR
DISSOLUTION OF THE TEMPORARY RESTRAINING ORDER, AND TO QUASH THE
CONTEMPT PROCEEDING.  THE MOTIONS WERE DENIED AND, AFTER HEARING, THE
COURT ORDERED THE TEMPORARY INJUNCTION TO ISSUE.  IT ALSO RENDERED
JUDGMENT HOLDING THOMAS IN CONTEMPT FOR VIOLATING THE RESTRAINING ORDER
AND FIXED THE PENALTY AT THREE DAYS IN JAIL AND A FINE OF $100. 
PROCESS FOR COMMITMENT THEREUPON ISSUED AND WAS EXECUTED.  APPLICATION
TO THE SUPREME COURT FOR THE WRIT OF HABEAS CORPUS WAS MADE AND
GRANTED, THE CAUSE WAS SET FOR HEARING IN OCTOBER, AND THOMAS WAS
RELEASED ON BOND, ALL ON SEPTEMBER 25.  THEREAFTER, AN AMENDED
APPLICATION IN HABEAS CORPUS WAS FILED, HEARING ON THE CAUSE WAS HAD,
JUDGMENT WAS RENDERED SUSTAINING THE COMMITMENT, A MOTION FOR REHEARING
WAS OVERRULED, AND THE PRESENT APPEAL WAS PERFECTED.  ARGUMENT FOLLOWED
HERE AT THE CLOSE OF THE LAST TERM, WITH REARGUMENT AT THE BEGINNING OF
THE PRESENT ONE TO CONSIDER QUESTIONS UPON WHICH WE DESIRED FURTHER
DISCUSSION. 

    II 

THE SUPREME COURT OF TEXAS, DEEMING HABEAS CORPUS AN APPROPRIATE
METHOD FOR CHALLENGING THE VALIDITY OF THE STATUTE AS APPLIED,  FN7
SUSTAINED THE ACT AS A VALID EXERCISE OF THE STATE'S POLICE POWER,
TAKEN "FOR THE PROTECTION OF THE GENERAL WELFARE OF THE PUBLIC, AND
PARTICULARLY THE LABORING CLASS," WITH SPECIAL REFERENCE TO
SAFEGUARDING LABORERS FROM IMPOSTURE WHEN APPROACHED BY AN ALLEGED
ORGANIZER.  THE PROVISION, IT WAS SAID, "AFFECTS ONLY THE RIGHT OF ONE
TO ENGAGE IN THE BUSINESS AS A PAID ORGANIZER, AND NOT THE MERE RIGHT
OF AN INDIVIDUAL TO EXPRESS HIS VIEWS ON THE MERITS OF THE UNION."  THE
COURT DECLARED THE ACT "DOES NOT REQUIRE A PAID ORGANIZER TO SECURE A
LICENSE," BUT MAKES MANDATORY THE ISSUANCE OF THE CARD "TO ALL WHO COME
WITHIN THE PROVISIONS OF THE ACT UPON THEIR GOOD-FAITH COMPLIANCE
THEREWITH."  ACCORDINGLY IT HELD THAT THE REGULATION WAS NOT
UNREASONABLE. 

THE COURT CONCEDED HOWEVER THAT THE ACT "INTERFERES TO A CERTAIN
EXTENT WITH THE RIGHT OF THE ORGANIZER TO SPEAK AS THE PAID
REPRESENTATIVE OF THE UNION."  NEVERTHELESS, IT SAID, "SUCH
INTERFERENCES ARE NOT NECESSARILY PROHIBITED BY THE CONSTITUTION.  THE
STATE UNDER ITS POLICE POWER MAY ENACT LAWS WHICH INTERFERE INDIRECTLY
AND TO A LIMITED EXTENT WITH THE RIGHT OF SPEECH OR THE LIBERTY OF THE
PEOPLE WHERE THEY ARE REASONABLY NECESSARY FOR THE PROTECTION OF THE
GENERAL PUBLIC."  ACCORDINGLY, IT LIKENED THE INSTANT PROHIBITION TO
VARIOUS OTHER ONES IMPOSED BY STATE OR FEDERAL LEGISLATION UPON "THE
RIGHT OF ONE TO OPERATE OR SPEAK AS THE AGENT OF ANOTHER," INCLUDING
SECURITIES SALESMEN, INSURANCE AGENTS, REAL ESTATE BROKERS, ETC.  AND
VARIOUS DECISIONS OF THIS COURT AND OTHERS  FN8  WERE THOUGHT TO
SUPPORT THE CONCLUSION THAT THE ACT "IMPOSES NO PREVIOUS GENERAL
RESTRAINT UPON THE RIGHT OF FREE SPEECH....  IT MERELY REQUIRES PAID
ORGANIZERS TO REGISTER WITH THE SECRETARY OF STATE BEFORE BEGINNING TO
OPERATE AS SUCH." 

                          III 

APPELLANT FIRST URGES THAT THE APPLICATION OF THE STATUTE AMOUNTED TO
THE REQUIREMENT OF A LICENSE "FOR THE SIMPLE ACT OF DELIVERING AN
ADDRESS TO A GROUP OF WORKERS."  HE SAYS THE ACT PENALIZED "WAS SIMPLY
AND SOLELY THE ACT OF ADDRESSING THE WORKERS ON THE  ...  BENEFITS OF
UNIONISM, AND CONCLUDING THE ADDRESS WITH A PLEA TO THE AUDIENCE
GENERALLY AND TO A NAMED WORKER IN THE AUDIENCE TO JOIN A UNION."  HE
POINTS OUT THAT HE DID NOT PARADE ON THE STREETS, DID NOT SOLICIT OR
RECEIVE FUNDS, DID NOT "SIGN UP" WORKERS,  FN9  ENGAGED IN NO
DISTURBANCE OR BREACH OF THE PEACE, AND THAT HIS SOLE PURPOSE IN GOING
TO TEXAS AND HIS SOLE ACTIVITY THERE WERE TO MAKE THE ADDRESS INCLUDING
THE INVITATIONS WHICH HE EXTENDED AT THE END.  THERE IS NO EVIDENCE
THAT HE SOLICITED MEMBERSHIPS OR MEMBERS FOR A UNION AT ANY OTHER TIME
OR OCCASION OR INTENDED TO DO SO. HIS POSITION NECESSARILY MAINTAINS
THAT THE RIGHT TO MAKE THE SPEECH INCLUDES THE RIGHT TO ASK MEMBERS OF
THE AUDIENCE, BOTH GENERALLY AND BY NAME, TO JOIN THE UNION. 

APPELLANT ALSO URGES MORE BROADLY THAT THE STATUTE IS AN INVALID
RESTRAINT UPON FREE EXPRESSION IN PENALIZING THE MERE ASKING A WORKER
TO JOIN A UNION, WITHOUT HAVING PROCURED THE CARD, WHETHER THE ASKING
TAKES PLACE IN A PUBLIC ASSEMBLY OR PRIVATELY. 

TEXAS, ON THE OTHER HAND, ASSERTS NO ISSUE OF FREE SPEECH OR FREE
ASSEMBLY IS PRESENTED.  WITH THE STATE COURT, IT SAYS THE STATUTE IS
DIRECTED AT BUSINESS PRACTICES, LIKE SELLING INSURANCE, DEALING IN
SECURITIES, ACTING AS COMMISSION MERCHANT, PAWNBROKING, ETC., AND WAS
ADOPTED "IN RECOGNITION OF THE FACT THAT SOMETHING MORE IS DONE BY A
LABOR ORGANIZER THAN TALKING."  FN10 

ALTERNATIVELY, THE STATE SAYS, SEC. 5 WOULD BE VALID IF IT WERE
FRAMED TO INCLUDE VOLUNTARY, UNPAID ORGANIZERS AND IF NO ELEMENT OF
BUSINESS WERE INVOLVED IN THE UNION'S ACTIVITY.  THE STATUTE "IS A
REGISTRATION STATUTE AND NOTHING MORE," AND CONFERS ONLY "MINISTERIAL
AND NOT DISCRETIONARY POWERS" UPON THE SECRETARY OF STATE.  THE
REQUIREMENT ACCORDINGLY IS REGARDED AS ONE MERELY FOR PREVIOUS
IDENTIFICATION, VALID WITHIN THE RULE OF CITY OF MANCHESTER V. LEIBY,
117 F.2D 661, AND THE DICTUM OF CANTWELL V. CONNECTICUT, 310 U.S. 296,
306.  FN11 

IN ACCORDANCE WITH THEIR DIFFERENT CONCEPTIONS OF THE NATURE OF THE
ISSUES, THE PARTIES WOULD APPLY DIFFERENT STANDARDS FOR DETERMINING
THEM.  APPELLANT RELIES ON THE RULE WHICH REQUIRES A SHOWING OF CLEAR
AND PRESENT DANGER TO SUSTAIN A RESTRICTION UPON FREE SPEECH OR FREE
ASSEMBLY.  FN12  TEXAS, CONSISTENTLY WITH ITS "BUSINESS PRACTICE"
THEORY, SAYS THE APPROPRIATE STANDARD IS THAT APPLIED UNDER THE
COMMERCE CLAUSE TO SUSTAIN THE APPLICATIONS OF STATE STATUTES
REGULATING TRANSPORTATION MADE IN HENDRICK V. MARYLAND, 235 U.S. 610;
CLARK V. PAUL GRAY, INC., 306 U.S. 583; AND CALIFORNIA V. THOMPSON, 313
U.S. 109.  FN13  IN SHORT, THE STATE WOULD APPLY A "RATIONAL BASIS"
TEST, APPELLANT ONE REQUIRING A SHOWING OF "CLEAR AND PRESENT DANGER." 

FINALLY, AS THE CASE IS PRESENTED HERE, TEXAS APPARENTLY WOULD REST
THE VALIDITY OF THE JUDGMENT EXCLUSIVELY UPON THE SPECIFIC INDIVIDUAL
SOLICITATION OF O'SULLIVAN, AND WOULD THROW OUT OF ACCOUNT THE GENERAL
INVITATION, MADE AT THE SAME TIME, TO ALL NONUNION WORKERS IN THE
AUDIENCE.  FN14  HOWEVER, THE CASE CANNOT BE DISPOSED OF ON SUCH A
BASIS.  THE TEXAS SUPREME COURT MADE NO DISTINCTION BETWEEN THE GENERAL
AND THE SPECIFIC INVITATIONS.  FN15  NOR DID THE DISTRICT COURT.  THE
RECORD SHOWS THAT THE RESTRAINING ORDER WAS ISSUED IN EXPLICIT
ANTICIPATION OF THE SPEECH AND TO RESTRAIN THOMAS FROM UTTERING IN ITS
COURSE ANY LANGUAGE WHICH COULD BE TAKEN AS SOLICITATION.  FN16  THE
MOTION FOR THE FIAT IN CONTEMPT WAS FILED AND THE FIAT ITSELF WAS
ISSUED ON ACCOUNT OF BOTH INVITATIONS.  FN17  THE ORDER ADJUDGING
THOMAS IN CONTEMPT WAS IN GENERAL TERMS, FINDING THAT HE HAD VIOLATED
THE RESTRAINING ORDER, WITHOUT DISTINCTION BETWEEN THE SOLICITATIONS
SET FORTH IN THE PETITION AND PROVED AS VIOLATIONS.  FN18  THE SENTENCE
WAS A SINGLE PENALTY.  IN THIS STATE OF THE RECORD IT MUST BE TAKEN
THAT THE ORDER FOLLOWED THE PRAYER OF THE MOTION AND THE FIAT'S
RECITAL, AND THAT THE PENALTY WAS IMPOSED ON ACCOUNT OF BOTH
INVITATIONS.  THE JUDGMENT THEREFORE MUST BE AFFIRMED AS TO BOTH OR AS
TO NEITHER.  CF. WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 292;
STROMBERG V. CALIFORNIA, 283 U.S. 359, 368.  AND IT FOLLOWS THAT THE
STATUTE, AS IT WAS APPLIED, RESTRAINED AND PUNISHED THOMAS FOR
UTTERING, IN THE COURSE OF HIS ADDRESS, THE GENERAL AS WELL AS THE
SPECIFIC INVITATION. 

      IV 

THE CASE CONFRONTS US AGAIN WITH THE DUTY OUR SYSTEM PLACES ON THIS
COURT TO SAY WHERE THE INDIVIDUAL'S FREEDOM ENDS AND THE STATE'S POWER
BEGINS.  CHOICE ON THAT BORDER, NOW AS ALWAYS DELICATE, IS PERHAPS MORE
SO WHERE THE USUAL PRESUMPTION SUPPORTING LEGISLATION IS BALANCED BY
THE PREFERRED PLACE GIVEN IN OUR SCHEME TO THE GREAT, THE INDISPENSABLE
DEMOCRATIC FREEDOMS SECURED BY THE FIRST AMENDMENT.  CF. SCHNEIDER V.
STATE, 308 U.S. 147; CANTWELL V. CONNECTICUT, 310 U.S. 296; PRINCE V.
MASSACHUSETTS, 321 U.S. 158.  THAT PRIORITY GIVES THESE LIBERTIES A
SANCTITY AND A SANCTION NOT PERMITTING DUBIOUS INTRUSIONS.  AND IT IS
THE CHARACTER OF THE RIGHT, NOT OF THE LIMITATION, WHICH DETERMINES
WHAT STANDARD GOVERNS THE CHOICE.  COMPARE UNITED STATES V. CAROLENE
PRODUCTS CO., 304 U.S. 144, 152-153. 

FOR THESE REASONS ANY ATTEMPT TO RESTRICT THOSE LIBERTIES MUST BE
JUSTIFIED BY CLEAR PUBLIC INTEREST, THREATENED NOT DOUBTFULLY OR
REMOTELY, BUT BY CLEAR AND PRESENT DANGER.  FN19  THE RATIONAL
CONNECTION BETWEEN THE REMEDY PROVIDED AND THE EVIL TO BE CURBED, WHICH
IN OTHER CONTEXTS MIGHT SUPPORT LEGISLATION AGAINST ATTACK ON DUE
PROCESS GROUNDS, WILL NOT SUFFICE.  THESE RIGHTS REST ON FIRMER
FOUNDATION.  ACCORDINGLY, WHATEVER OCCASION WOULD RESTRAIN ORDERLY
DISCUSSION AND PERSUASION, AT APPROPRIATE TIME AND PLACE, MUST HAVE
CLEAR SUPPORT IN PUBLIC DANGER, ACTUAL OR IMPENDING.  ONLY THE GRAVEST
ABUSES, ENDANGERING PARAMOUNT INTERESTS, GIVE OCCASION FOR PERMISSIBLE
LIMITATION.  IT IS THEREFORE IN OUR TRADITION TO ALLOW THE WIDEST ROOM
FOR DISCUSSION, THE NARROWEST RANGE FOR ITS RESTRICTION, PARTICULARLY
WHEN THIS RIGHT IS EXERCISED IN CONJUNCTION WITH PEACEABLE ASSEMBLY. 
IT WAS NOT BY ACCIDENT OR COINCIDENCE THAT THE RIGHTS TO FREEDOM IN
SPEECH AND PRESS WERE COUPLED IN A SINGLE GUARANTY WITH THE RIGHTS OF
THE PEOPLE PEACEABLY TO ASSEMBLE AND TO PETITION FOR REDRESS OF
GRIEVANCES.  ALL THESE, THOUGH NOT IDENTICAL, ARE INSEPARABLE.  THEY
ARE COGNATE RIGHTS, CF. DE JONGE V. OREGON, 299 U.S. 353, 364, AND
THEREFORE ARE UNITED IN THE FIRST ARTICLE'S ASSURANCE.  CF. 1 ANNALS OF
CONGRESS 759-760. 

THIS CONJUNCTION OF LIBERTIES IS NOT PECULIAR TO RELIGIOUS ACTIVITY
AND INSTITUTIONS ALONE.  THE FIRST AMENDMENT GIVES FREEDOM OF MIND THE
SAME SECURITY AS FREEDOM OF CONSCIENCE.  CF. PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510; MEYER V. NEBRASKA, 262 U.S. 390; PRINCE V.
MASSACHUSETTS, 321 U.S. 158.  GREAT SECULAR CAUSES, WITH SMALL ONES,
ARE GUARDED.  THE GRIEVANCES FOR REDRESS OF WHICH THE RIGHT OF PETITION
WAS INSURED, AND WITH IT THE RIGHT OF ASSEMBLY, ARE NOT SOLELY
RELIGIOUS OR POLITICAL ONES.  AND THE RIGHTS OF FREE SPEECH AND A FREE
PRESS ARE NOT CONFINED TO ANY FIELD OF HUMAN INTEREST. 

THE IDEA IS NOT SOUND THEREFORE THAT THE FIRST AMENDMENT'S SAFEGUARDS
ARE WHOLLY INAPPLICABLE TO BUSINESS OR ECONOMIC ACTIVITY.  AND IT DOES
NOT RESOLVE WHERE THE LINE SHALL BE DRAWN IN A PARTICULAR CASE MERELY
TO URGE, AS TEXAS DOES, THAT AN ORGANIZATION FOR WHICH THE RIGHTS OF
FREE SPEECH AND FREE ASSEMBLY ARE CLAIMED IS ONE "ENGAGED IN BUSINESS
ACTIVITIES" OR THAT THE INDIVIDUAL WHO LEADS IT IN EXERCISING THESE
RIGHTS RECEIVES COMPENSATION FOR DOING SO.  NOR, ON THE OTHER HAND, IS
THE ANSWER GIVEN, WHETHER WHAT IS DONE IS AN EXERCISE OF THOSE RIGHTS
AND THE RESTRICTION A FORBIDDEN IMPAIRMENT, BY IGNORING THE
ORGANIZATION'S ECONOMIC FUNCTION, BECAUSE THOSE INTERESTS OF WORKINGMEN
ARE INVOLVED OR BECAUSE THEY HAVE THE GENERAL LIBERTIES OF THE CITIZEN,
AS APPELLANT WOULD DO. 

THESE COMPARISONS ARE AT ONCE TOO SIMPLE, TOO GENERAL, AND TOO
INACCURATE TO BE DETERMINATIVE.  WHERE THE LINE SHALL BE PLACED IN A
PARTICULAR APPLICATION RESTS, NOT ON SUCH GENERALITIES, BUT ON THE
CONCRETE CLASH OF PARTICULAR INTERESTS AND THE COMMUNITY'S RELATIVE
EVALUATION BOTH OF THEM AND OF HOW THE ONE WILL BE AFFECTED BY THE
SPECIFIC RESTRICTION, THE OTHER BY ITS ABSENCE.  THAT JUDGMENT IN THE
FIRST INSTANCE IS FOR THE LEGISLATIVE BODY.  BUT IN OUR SYSTEM WHERE
THE LINE CAN CONSTITUTIONALLY BE PLACED PRESENTS A QUESTION THIS COURT
CANNOT ESCAPE ANSWERING INDEPENDENTLY, WHATEVER THE LEGISLATIVE
JUDGMENT, IN THE LIGHT OF OUR CONSTITUTIONAL TRADITION.  SCHNEIDER V.
STATE, 308 U.S. 147, 161.  AND THE ANSWER, UNDER THAT TRADITION, CAN BE
AFFIRMATIVE, TO SUPPORT AN INTRUSION UPON THIS DOMAIN, ONLY IF GRAVE
AND IMPENDING PUBLIC DANGER REQUIRES THIS. 

THAT THE STATE HAS POWER TO REGULATE LABOR UNIONS WITH A VIEW TO
PROTECTING THE PUBLIC INTEREST IS, AS THE TEXAS COURT SAID, HARDLY TO
BE DOUBTED.  THEY CANNOT CLAIM SPECIAL IMMUNITY FROM REGULATION.  SUCH
REGULATION HOWEVER, WHETHER AIMED AT FRAUD OR OTHER ABUSES, MUST NOT
TRESPASS UPON THE DOMAINS SET APART FOR FREE SPEECH AND FREE ASSEMBLY. 
THIS COURT HAS RECOGNIZED THAT "IN THE CIRCUMSTANCES OF OUR TIMES THE
DISSEMINATION OF INFORMATION CONCERNING THE FACTS OF A LABOR DISPUTE
MUST BE REGARDED AS WITHIN THAT AREA OF FREE DISCUSSION THAT IS
GUARANTEED BY THE CONSTITUTION....  FREE DISCUSSION CONCERNING THE
CONDITIONS IN INDUSTRY AND THE CAUSES OF LABOR DISPUTES APPEARS TO US
INDISPENSABLE TO THE EFFECTIVE AND INTELLIGENT USE OF THE PROCESSES OF
POPULAR GOVERNMENT TO SHAPE THE DESTINY OF MODERN INDUSTRIAL SOCIETY." 
THORNHILL V. ALABAMA, 310 U.S. 88, 102-103; SENN V. TILE LAYERS
PROTECTIVE UNION, 301 U.S. 468, 478.  THE RIGHT THUS TO DISCUSS, AND
INFORM PEOPLE CONCERNING, THE ADVANTAGES AND DISADVANTAGES OF UNIONS
AND JOINING THEM IS PROTECTED NOT ONLY AS PART OF FREE SPEECH, BUT AS
PART OF FREE ASSEMBLY.  HAGUE V. C.I.O., 307 U.S. 496.  THE TEXAS
COURT, IN ITS DISPOSITION OF THE CAUSE, DID NOT GIVE SUFFICIENT WEIGHT
TO THIS CONSIDERATION, MORE PARTICULARLY BY ITS FAILURE TO TAKE ACCOUNT
OF THE BLANKETING EFFECT OF THE PROHIBITION'S PRESENT APPLICATION UPON
PUBLIC DISCUSSION AND ALSO OF THE BEARING OF THE CLEAR AND PRESENT
DANGER TEST IN THESE CIRCUMSTANCES. 

  V 

IN APPLYING THESE PRINCIPLES TO THE FACTS OF THIS CASE WE PUT ASIDE
THE BROADER CONTENTIONS BOTH PARTIES HAVE MADE AND CONFINE OUR DECISION
TO THE NARROW QUESTION WHETHER THE APPLICATION MADE OF SEC. 5 IN THIS
CASE CONTRAVENES THE FIRST AMENDMENT. 

THE PRESENT APPLICATION DOES NOT INVOLVE THE SOLICITATION OF FUNDS OR
PROPERTY.  NEITHER SEC. 5 NOR THE RESTRAINING ORDER PURPORTS TO
PROHIBIT OR REGULATE SOLICITATION OF FUNDS, RECEIPT OF MONEY, ITS
MANAGEMENT, DISTRIBUTION, OR ANY OTHER FINANCIAL MATTER.  OTHER
THOMAS NEITHER ASKED NOR ACCEPTED FUNDS OR PROPERTY FOR THE UNION AT
THE TIME OF HIS ADDRESS OR WHILE HE WAS IN TEXAS.  NEITHER DID HE "TAKE
APPLICATIONS" FOR MEMBERSHIP, THOUGH HE OFFERED TO DO SO "IF IT WAS
NECESSARY"; OR ASK ANYONE TO JOIN A UNION AT ANY OTHER TIME THAN THE
OCCASION OF THE PELLY MASS MEETING AND IN THE COURSE OF HIS ADDRESS. 

THOMAS WENT TO TEXAS FOR ONE PURPOSE AND ONE ONLY - TO MAKE THE
SPEECH IN QUESTION.  ITS WHOLE OBJECT WAS PUBLICLY TO PROCLAIM THE
ADVANTAGES OF WORKERS' ORGANIZATION AND TO PERSUADE WORKMEN TO JOIN
LOCAL NO. 1002 AS PART OF A CAMPAIGN FOR MEMBERS.  THESE ALSO WERE THE
SOLE OBJECTS OF THE MEETING.  THE CAMPAIGN, AND THE MEETING, WERE
INCIDENTS OF AN IMPENDING ELECTION FOR COLLECTIVE BARGAINING AGENT,
PREVIOUSLY ORDERED BY NATIONAL AUTHORITY PURSUANT TO THE GUARANTIES OF
NATIONAL LAW.  THOSE GUARANTIES INCLUDE THE WORKERS' RIGHT TO ORGANIZE
FREELY FOR COLLECTIVE BARGAINING.  AND THIS COMPREHENDS WHATEVER MAY BE
APPROPRIATE AND LAWFUL TO ACCOMPLISH AND MAINTAIN SUCH ORGANIZATION. 
IT INCLUDED, IN THIS CASE, THE RIGHT TO DESIGNATE LOCAL NO. 1002 OR ANY
OTHER UNION OR AGENCY AS THE EMPLOYEES' REPRESENTATIVE.  IT INCLUDED
THEIR RIGHT FULLY AND FREELY TO DISCUSS AND BE INFORMED CONCERNING THIS
CHOICE, PRIVATELY OR IN PUBLIC ASSEMBLY.  NECESSARILY CORRELATIVE WAS
THE RIGHT OF THE UNION, ITS MEMBERS AND OFFICIALS, WHETHER RESIDENTS OR
NONRESIDENTS OF TEXAS AND, IF THE LATTER, WHETHER THERE FOR A SINGLE
OCCASION OR SOJOURNING LONGER, TO DISCUSS WITH AND INFORM THE EMPLOYEES
CONCERNING MATTERS INVOLVED IN THEIR CHOICE.  THESE RIGHTS OF ASSEMBLY
AND DISCUSSION ARE PROTECTED BY THE FIRST AMENDMENT.  WHATEVER WOULD
RESTRICT THEM, WITHOUT SUFFICIENT OCCASION, WOULD INFRINGE ITS
SAFEGUARDS.  THE OCCASION WAS CLEARLY PROTECTED.  THE SPEECH WAS AN
ESSENTIAL PART OF THE OCCASION, UNLESS ALL MEANING AND PURPOSE WERE TO
BE TAKEN FROM IT.  AND THE INVITATIONS, BOTH GENERAL AND PARTICULAR,
WERE PARTS OF THE SPEECH, INSEPARABLE INCIDENTS OF THE OCCASION AND OF
ALL THAT WAS SAID OR DONE. 

THAT THERE WAS RESTRICTION UPON THOMAS' RIGHT TO SPEAK AND THE RIGHTS
OF THE WORKERS TO HEAR WHAT HE HAD TO SAY, THERE CAN BE NO DOUBT.  THE
THREAT OF THE RESTRAINING ORDER, BACKED BY THE POWER OF CONTEMPT, AND
OF ARREST FOR CRIME, HUNG OVER EVERY WORD.  A SPEAKER IN SUCH
CIRCUMSTANCES COULD AVOID THE WORDS "SOLICIT," "INVITE," "JOIN."  IT
WOULD BE IMPOSSIBLE TO AVOID THE IDEA.  THE STATUTE REQUIRES NO
SPECIFIC FORMULA.  IT IS NOT CONTENDED THAT ONLY THE USE OF THE WORD
"SOLICIT" WOULD VIOLATE THE PROHIBITION.  WITHOUT SUCH A LIMITATION,
THE STATUTE FORBIDS ANY LANGUAGE WHICH CONVEYS, OR REASONABLY COULD BE
FOUND TO CONVEY, THE MEANING OF INVITATION.  THAT THOMAS CHOSE TO MEET
THE ISSUE SQUARELY, NOT TO HIDE IN AMBIGUOUS PHRASING, DOES NOT
COUNTERACT THIS FACT.  GENERAL WORDS CREATE DIFFERENT AND OFTEN
PARTICULAR IMPRESSIONS ON DIFFERENT MINDS.  NO SPEAKER, HOWEVER
CAREFUL, CAN CONVEY EXACTLY HIS MEANING, OR THE SAME MEANING, TO THE
DIFFERENT MEMBERS OF AN AUDIENCE.  HOW ONE MIGHT "LAUD UNIONISM," AS
THE STATE AND THE STATE SUPREME COURT CONCEDE THOMAS WAS FREE TO DO,
YET IN THESE CIRCUMSTANCES NOT IMPLY AN INVITATION, IS HARD TO
CONCEIVE.  THIS IS THE NUB OF THE CASE, WHICH THE STATE FAILS TO MEET
BECAUSE IT CANNOT DO SO.  WORKINGMEN DO NOT LACK CAPACITY FOR MAKING
RATIONAL CONNECTIONS.  THEY WOULD UNDERSTAND, OR SOME WOULD, THAT THE
PRESIDENT OF U.A.W. AND VICE PRESIDENT OF C.I.O., ADDRESSING AN
ORGANIZATION MEETING, WAS NOT URGING MERELY A PHILOSOPHIC ATTACHMENT TO
ABSTRACT PRINCIPLES OF UNIONISM, DISCONNECTED FROM THE BUSINESS
IMMEDIATELY AT HAND.  THE FEAT WOULD BE INCREDIBLE FOR A NATIONAL
LEADER, ADDRESSING SUCH A MEETING, LAUDING UNIONS AND THEIR PRINCIPLES,
URGING ADHERENCE TO UNION PHILOSOPHY, NOT ALSO AND THEREBY TO SUGGEST
ATTACHMENT TO THE UNION BY BECOMING A MEMBER. 

FURTHERMORE, WHETHER WORDS INTENDED AND DESIGNED TO FALL SHORT OF
INVITATION WOULD MISS THAT MARK IS A QUESTION BOTH OF INTENT AND OF
EFFECT.  NO SPEAKER, IN SUCH CIRCUMSTANCES, SAFELY COULD ASSUME THAT
ANYTHING HE MIGHT SAY UPON THE GENERAL SUBJECT WOULD NOT BE UNDERSTOOD
BY SOME AS AN INVITATION.  IN SHORT, THE SUPPOSEDLY CLEAR-CUT
DISTINCTION BETWEEN DISCUSSION, LAUDATION, GENERAL ADVOCACY, AND
SOLICITATION PUTS THE SPEAKER IN THESE CIRCUMSTANCES WHOLLY AT THE
MERCY OF THE VARIED UNDERSTANDING OF HIS HEARERS AND CONSEQUENTLY OF
WHATEVER INFERENCE MAY BE DRAWN AS TO HIS INTENT AND MEANING. 

SUCH A DISTINCTION OFFERS NO SECURITY FOR FREE DISCUSSION.  IN THESE
CONDITIONS IT BLANKETS WITH UNCERTAINTY WHATEVER MAY BE SAID.  IT
COMPELS THE SPEAKER TO HEDGE AND TRIM.  HE MUST TAKE CARE IN EVERY WORD
TO CREATE NO IMPRESSION THAT HE MEANS, IN ADVOCATING UNIONISM'S MOST
CENTRAL PRINCIPLE, NAMELY, THAT WORKINGMEN SHOULD UNITE FOR COLLECTIVE
BARGAINING, TO URGE THOSE PRESENT TO DO SO. THE VICE IS NOT MERELY THAT
INVITATION, IN THE CIRCUMSTANCES SHOWN HERE, IS SPEECH.  IT IS ALSO
THAT ITS PROHIBITION FORBIDS OR RESTRAINS DISCUSSION WHICH IS NOT OR
MAY NOT BE INVITATION.  THE SHARP LINE CANNOT BE DRAWN SURELY OR
SECURELY.  THE EFFORT TO OBSERVE IT COULD NOT BE FREE SPEECH, FREE
PRESS, OR FREE ASSEMBLY, IN ANY SENSE OF FREE ADVOCACY OF PRINCIPLE OR
CAUSE.  THE RESTRICTION'S EFFECT, AS APPLIED, IN A VERY PRACTICAL SENSE
WAS TO PROHIBIT THOMAS NOT ONLY TO SOLICIT MEMBERS AND MEMBERSHIPS, BUT
ALSO TO SPEAK IN ADVOCACY OF THE CAUSE OF TRADE UNIONISM IN TEXAS,
WITHOUT HAVING FIRST PROCURED THE CARD.  THOMAS KNEW THIS AND FACED THE
ALTERNATIVES IT PRESENTED.  WHEN SERVED WITH THE ORDER HE HAD THREE
CHOICES:  (1) TO STAND ON HIS RIGHT AND SPEAK FREELY; (2) TO QUIT,
REFUSING ENTIRELY TO SPEAK; (3) TO TRIM, AND EVEN THUS TO RISK THE
PENALTY.  HE CHOSE THE FIRST ALTERNATIVE.  WE THINK HE WAS WITHIN HIS
RIGHTS IN DOING SO. 

THE ASSEMBLY WAS ENTIRELY PEACEABLE, AND HAD NO OTHER THAN A WHOLLY
LAWFUL PURPOSE.  THE STATEMENTS FORBIDDEN WERE NOT IN THEMSELVES
UNLAWFUL, HAD NO TENDENCY TO INCITE TO UNLAWFUL ACTION, INVOLVED NO
ELEMENT OF CLEAR AND PRESENT, GRAVE AND IMMEDIATE DANGER TO THE PUBLIC
WELFARE.  MOREOVER, THE STATE HAS SHOWN NO JUSTIFICATION FOR PLACING
RESTRICTIONS ON THE USE OF THE WORD "SOLICIT."  WE HAVE HERE NOTHING
COMPARABLE TO THE CASE WHERE USE OF THE WORD "FIRE" IN A CROWDED
THEATER CREATES A CLEAR AND PRESENT DANGER WHICH THE STATE MAY
UNDERTAKE TO AVOID OR AGAINST WHICH IT MAY PROTECT.  SCHENCK V. UNITED
STATES, 249 U.S. 47.  WE CANNOT SAY THAT "SOLICIT" IN THIS SETTING IS
SUCH A DANGEROUS WORD.  SO FAR AS FREE SPEECH ALONE IS CONCERNED, THERE
CAN BE NO BAN OR RESTRICTION OR BURDEN PLACED ON THE USE OF SUCH A WORD
EXCEPT ON SHOWING OF EXCEPTIONAL CIRCUMSTANCES WHERE THE PUBLIC SAFETY,
MORALITY OR HEALTH IS INVOLVED OR SOME OTHER SUBSTANTIAL INTEREST OF
THE COMMUNITY IS AT STAKE. 

IF THEREFORE USE OF THE WORD OR LANGUAGE EQUIVALENT IN MEANING WAS
ILLEGAL HERE, IT WAS SO ONLY BECAUSE THE STATUTE AND THE ORDER FORBADE
THE PARTICULAR SPEAKER TO UTTER IT.  WHEN LEGISLATION OR ITS
APPLICATION CAN CONFINE LABOR LEADERS ON SUCH OCCASIONS TO INNOCUOUS
AND ABSTRACT DISCUSSION OF THE VIRTUES OF TRADE UNIONS AND SO BECLOUD
EVEN THIS WITH DOUBT, UNCERTAINTY AND THE RISK OF PENALTY, FREEDOM OF
SPEECH FOR THEM WILL BE AT AN END.  A RESTRICTION SO DESTRUCTIVE OF THE
RIGHT OF PUBLIC DISCUSSION, WITHOUT GREATER OR MORE IMMINENT DANGER TO
THE PUBLIC INTEREST THAN EXISTED IN THIS CASE, IS INCOMPATIBLE WITH THE
FREEDOMS SECURED BY THE FIRST AMENDMENT. 

WE DO NOT MEAN TO SAY THERE IS NOT, IN MANY CIRCUMSTANCES, A
DIFFERENCE BETWEEN URGING A COURSE OF ACTION AND MERELY GIVING AND
ACQUIRING INFORMATION.  ON THE OTHER HAND, HISTORY HAS NOT BEEN WITHOUT
PERIODS WHEN THE SEARCH FOR KNOWLEDGE ALONE WAS BANNED.  OF THIS WE MAY
ASSUME THE MEN WHO WROTE THE BILL OF RIGHTS WERE AWARE.  BUT THE
PROTECTION THEY SOUGHT WAS NOT SOLELY FOR PERSONS IN INTELLECTUAL
PURSUITS.  IT EXTENDS TO MORE THAN ABSTRACT DISCUSSION, UNRELATED TO
ACTION.  THE FIRST AMENDMENT IS A CHARTER FOR GOVERNMENT, NOT FOR AN
INSTITUTION OF LEARNING.  "FREE TRADE IN IDEAS" MEANS FREE TRADE IN THE
OPPORTUNITY TO PERSUADE TO ACTION, NOT MERELY TO DESCRIBE FACTS.  CF.
ABRAMS V. UNITED STATES, 250 U.S. 616, 624, AND GITLOW V. NEW YORK, 268
U.S. 652, 672, DISSENTING OPINIONS OF MR. JUSTICE HOLMES.  INDEED, THE
WHOLE HISTORY OF THE PROBLEM SHOWS IT IS TO THE END OF PREVENTING
ACTION THAT REPRESSION IS PRIMARILY DIRECTED AND TO PRESERVING THE
RIGHT TO URGE IT THAT THE PROTECTIONS ARE GIVEN. 

ACCORDINGLY, DECISION HERE HAS RECOGNIZED THAT EMPLOYERS' ATTEMPTS TO
PERSUADE TO ACTION WITH RESPECT TO JOINING OR NOT JOINING UNIONS ARE
WITHIN THE FIRST AMENDMENT'S GUARANTY.  LABOR BOARD V. VIRGINIA
ELECTRIC & POWER CO., 314 U.S. 469.  DECISIONS OF OTHER COURTS HAVE
DONE LIKEWISE N21.  WHEN TO THIS PERSUASION OTHER THINGS ARE ADDED
WHICH BRING ABOUT COERCION, OR GIVE IT THAT CHARACTER, THE LIMIT OF THE
RIGHT HAS BEEN PASSED.  FN22  CF. LABOR BOARD V. VIRGINIA ELECTRIC &
POWER CO., SUPRA.  BUT SHORT OF THAT LIMIT THE EMPLOYER'S FREEDOM
CANNOT BE IMPAIRED.  THE CONSTITUTION PROTECTS NO LESS THE EMPLOYEES'
CONVERSE RIGHT.  OF COURSE ESPOUSAL OF THE CAUSE OF LABOR IS ENTITLED
TO NO HIGHER CONSTITUTIONAL PROTECTION THAN THE ESPOUSAL OF ANY OTHER
LAWFUL CAUSE.  IT IS ENTITLED TO THE SAME PROTECTION. 

                          VI 

APART FROM ITS "BUSINESS PRACTICE" THEORY, THE STATE CONTENDS THAT
SEC. 5 IS NOT INCONSISTENT WITH FREEDOM OF SPEECH AND ASSEMBLY, SINCE
THIS IS MERELY A PREVIOUS IDENTIFICATION REQUIREMENT WHICH, ACCORDING
TO THE STATE COURT'S DECISION, GIVES THE SECRETARY OF STATE ONLY
"MINISTERIAL, NOT DISCRETIONARY" AUTHORITY. 

HOW FAR THE STATE CAN REQUIRE PREVIOUS IDENTIFICATION BY ONE WHO
UNDERTAKES TO EXERCISE THE RIGHTS SECURED BY THE FIRST AMENDMENT HAS
BEEN LARGELY UNDETERMINED.  IT HAS ARISEN HERE CHIEFLY, THOUGH ONLY
TANGENTALLY, IN CONNECTION WITH LICENSE REQUIREMENTS INVOLVING THE
SOLICITATION OF FUNDS, CANTWELL V. CONNECTICUT, SUPRA; CF. SCHNEIDER V.
STATE, 308 U.S. 147; LARGENT V. TEXAS, 318 U.S. 418, AND OTHER
ACTIVITIES UPON THE PUBLIC STREETS OR IN PUBLIC PLACES, CF. LOVELL V.
GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O., 307 U.S. 496, OR HOUSE-TO-HOUSE
CANVASSING, CF. SCHNEIDER V. STATE, SUPRA.  IN THESE CASES, HOWEVER,
THE LICENSE REQUIREMENTS WERE FOR MORE THAN MERE IDENTIFICATION OR
PREVIOUS REGISTRATION AND WERE HELD INVALID BECAUSE THEY VESTED
DISCRETION IN THE ISSUING AUTHORITIES TO CENSOR THE ACTIVITY INVOLVED. 
NEVERTHELESS, IT WAS INDICATED BY DICTUM IN CANTWELL V. CONNECTICUT,
310 U.S. 296, 306,  FN23  THAT A STATUTE GOING NO FURTHER THAN MERELY
TO REQUIRE PREVIOUS IDENTIFICATION WOULD BE SUSTAINED IN RESPECT TO THE
ACTIVITIES MENTIONED.  ALTHOUGH THOSE ACTIVITIES ARE NOT INVOLVED IN
THIS CASE, THAT DICTUM AND THE DECISION IN BRYANT V. ZIMMERMAN, 278
U.S. 63, FURNISH PERHAPS THE INSTANCES OF PRONOUNCEMENT OR DECISION
HERE NEAREST THIS PHASE OF THE QUESTION NOW PRESENTED. 

AS A MATTER OF PRINCIPLE A REQUIREMENT OF REGISTRATION IN ORDER TO
MAKE A PUBLIC SPEECH WOULD SEEM GENERALLY INCOMPATIBLE WITH AN EXERCISE
OF THE RIGHTS OF FREE SPEECH AND FREE ASSEMBLY.  LAWFUL PUBLIC
ASSEMBLIES, INVOLVING NO ELEMENT OF GRAVE AND IMMEDIATE DANGER TO AN
INTEREST THE STATE IS ENTITLED TO PROTECT, ARE NOT INSTRUMENTS OF HARM
WHICH REQUIRE PREVIOUS IDENTIFICATION OF THE SPEAKERS.  AND THE RIGHT
EITHER OF WORKMEN OR OF UNIONS UNDER THESE CONDITIONS TO ASSEMBLE AND
DISCUSS THEIR OWN AFFAIRS IS AS FULLY PROTECTED BY THE CONSTITUTION AS
THE RIGHT OF BUSINESSMEN, FARMERS, EDUCATORS, POLITICAL PARTY MEMBERS
OR OTHERS TO ASSEMBLE AND DISCUSS THEIR AFFAIRS AND TO ENLIST THE
SUPPORT OF OTHERS. 

WE THINK THE CONTROLLING PRINCIPLE IS STATED IN DE JONGE V. OREGON,
299 U.S. 353, 365.  IN THAT CASE THIS COURT HELD THAT, "CONSISTENTLY
WITH THE FEDERAL CONSTITUTION, PEACEABLE ASSEMBLY FOR LAWFUL DISCUSSION
CANNOT BE MADE A CRIME."  AND "THOSE WHO ASSIST IN THE CONDUCT OF SUCH
MEETINGS CANNOT BE BRANDED AS CRIMINALS ON THAT SCORE.  THE QUESTION,
IF THE RIGHTS OF FREE SPEECH AND PEACEABLE ASSEMBLY ARE TO BE
PRESERVED, IS NOT AS TO THE AUSPICES UNDER WHICH THE MEETING IS HELD
BUT AS TO ITS PURPOSE; NOT AS TO THE RELATIONS OF THE SPEAKERS, BUT
WHETHER THEIR UTTERANCES TRANSCEND THE BOUNDS OF THE FREEDOM OF SPEECH
WHICH THE CONSTITUTION PROTECTS.  IF THE PERSONS ASSEMBLING HAVE
COMMITTED CRIMES ELSEWHERE, IF THEY HAVE FORMED OR ARE ENGAGED IN A
CONSPIRACY AGAINST THE PUBLIC PEACE AND ORDER, THEY MAY BE PROSECUTED
FOR THEIR CONSPIRACY OR OTHER VIOLATION OF VALID LAWS.  BUT IT IS A
DIFFERENT MATTER WHEN THE STATE, INSTEAD OF PROSECUTING THEM FOR SUCH
OFFENSES, SEIZES UPON MERE PARTICIPATION IN A PEACEABLE ASSEMBLY AND A
LAWFUL PUBLIC DISCUSSION AS THE BASIS FOR A CRIMINAL CHARGE." 

IF THE EXERCISE OF THE RIGHTS OF FREE SPEECH AND FREE ASSEMBLY CANNOT
BE MADE A CRIME, WE DO NOT THINK THIS CAN BE ACCOMPLISHED BY THE DEVICE
OF REQUIRING PREVIOUS REGISTRATION AS A CONDITION FOR EXERCISING THEM
AND MAKING SUCH A CONDITION THE FOUNDATION FOR RESTRAINING IN ADVANCE
THEIR EXERCISE AND FOR IMPOSING A PENALTY FOR VIOLATING SUCH A
RESTRAINING ORDER.  SO LONG AS NO MORE IS INVOLVED THAN EXERCISE OF THE
RIGHTS OF FREE SPEECH AND FREE ASSEMBLY, IT IS IMMUNE TO SUCH A
RESTRICTION.  IF ONE WHO SOLICITS SUPPORT FOR THE CAUSE OF LABOR MAY BE
REQUIRED TO REGISTER AS A CONDITION TO THE EXERCISE OF HIS RIGHT TO
MAKE A PUBLIC SPEECH, SO MAY HE WHO SEEKS TO RALLY SUPPORT FOR ANY
SOCIAL, BUSINESS, RELIGIOUS OR POLITICAL CAUSE.  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. 

ONCE THE SPEAKER GOES FURTHER, HOWEVER, AND ENGAGES IN CONDUCT WHICH
AMOUNTS TO MORE THAN THE RIGHT OF FREE DISCUSSION COMPREHENDS, AS WHEN
HE UNDERTAKES THE COLLECTION OF FUNDS OR SECURING SUBSCRIPTIONS, HE
ENTERS A REALM WHERE A REASONABLE REGISTRATION OR IDENTIFICATION
REQUIREMENT MAY BE IMPOSED.  IN THAT CONTEXT SUCH SOLICITATION WOULD BE
QUITE DIFFERENT FROM THE SOLICITATION INVOLVED HERE.  IT WOULD BE FREE
SPEECH PLUS CONDUCT AKIN TO THE ACTIVITIES WHICH WERE PRESENT, AND
WHICH IT WAS SAID THE STATE MIGHT REGULATE, IN SCHNEIDER V. STATE,
SUPRA, AND CANTWELL V. CONNECTICUT, SUPRA.  THAT, HOWEVER, MUST BE
DONE, AND THE RESTRICTION APPLIED, IN SUCH A MANNER AS NOT TO INTRUDE
UPON THE RIGHTS OF FREE SPEECH AND FREE ASSEMBLY.  IN THIS CASE THE
SEPARATION WAS NOT MAINTAINED.  IF WHAT THOMAS DID, IN SOLICITING PAT
O'SULLIVAN, WAS SUBJECT TO SUCH A RESTRICTION, AS TO WHICH WE EXPRESS
NO OPINION, THAT ACT WAS INTERTWINED WITH THE SPEECH AND THE GENERAL
INVITATION IN THE PENALTY WHICH WAS IMPOSED FOR VIOLATING THE
RESTRAINING ORDER.  SINCE THE PENALTY MUST BE TAKEN TO HAVE RESTED AS
MUCH ON THE SPEECH AND THE GENERAL INVITATION AS ON THE SPECIFIC ONE,
AND THE FORMER CLEARLY WERE IMMUNE, THE JUDGMENT CANNOT STAND. 

AS WE THINK THE REQUIREMENT OF REGISTRATION, IN THE PRESENT
CIRCUMSTANCES, WAS IN ITSELF AN INVALID RESTRICTION, WE HAVE NO
OCCASION TO CONSIDER WHETHER THE RESTRAINT AS IMPOSED GOES BEYOND
MERELY REQUIRING PREVIOUS IDENTIFICATION OR REGISTRATION.  FN24  NOR DO
WE UNDERTAKE TO DETERMINE THE VALIDITY OF SEC. 5 IN ANY OTHER
APPLICATION THAN THAT MADE UPON THE FACTS OF THIS CASE.  NEITHER DO WE
GROUND OUR DECISION UPON OTHER CONTENTIONS ADVANCED IN THE BRIEFS AND
ARGUMENT.  UPON THE REARGUMENT ATTENTION WAS GIVEN PARTICULARLY TO THE
QUESTIONS WHETHER AND TO WHAT EXTENT THE PROHIBITIONS OF SEC. 5, OR
THEIR APPLICATION IN THIS CASE, ARE CONSISTENT WITH THE PROVISIONS OF
THE NATIONAL LABOR RELATIONS ACT.  BOTH THE PARTIES AND THE GOVERNMENT,
WHICH HAS APPEARED AS AMICUS CURIAE, HAVE ADVANCED CONTENTIONS ON THIS
ISSUE INDEPENDENT OF THOSE PUT FORWARD UPON THE QUESTION OF
CONSTITUTIONALITY.  SINCE A MAJORITY OF THE COURT DO NOT AGREE THAT
SEC. 5 OR ITS PRESENT APPLICATION CONFLICTS WITH THE NATIONAL LABOR
RELATIONS ACT, OUR DECISION RESTS EXCLUSIVELY UPON THE GROUNDS WE HAVE
STATED FOR FINDING THAT THE STATUTE AS APPLIED CONTRAVENES THE
CONSTITUTION. 

THE RESTRAINT IS NOT SMALL WHEN IT IS CONSIDERED WHAT WAS
RESTRAINED.  THE RIGHT IS A NATIONAL RIGHT, FEDERALLY GUARANTEED. 
THERE IS SOME MODICUM OF FREEDOM OF THOUGHT, SPEECH AND ASSEMBLY WHICH
ALL CITIZENS OF THE REPUBLIC MAY EXERCISE THROUGHOUT ITS LENGTH AND
BREADTH, WHICH NO STATE, NOR ALL TOGETHER, NOR THE NATION ITSELF, CAN
PROHIBIT, RESTRAIN OR IMPEDE.  IF THE RESTRAINT WERE SMALLER THAN IT
IS, IT IS FROM PETTY TYRANNIES THAT LARGE ONES TAKE ROOT AND GROW. 
THIS FACT CAN BE NO MORE PLAIN THAN WHEN THEY ARE IMPOSED ON THE MOST
BASIC RIGHTS OF ALL.  SEEDLINGS PLANTED IN THAT SOIL GROW GREAT AND,
GROWING, BREAK DOWN THE FOUNDATIONS OF LIBERTY. 

IN VIEW OF THE DISPOSITION WE MAKE OF THE CAUSE, IT IS UNNECESSARY TO
RULE UPON THE MOTION APPELLEE HAS FILED TO REQUIRE APPELLANT TO FURNISH
SECURITY FOR HIS APPEARANCE TO SERVE THE SENTENCE. 

THE JUDGMENT IS REVERSED. 

FN1  SEC. 5.  "ALL LABOR UNION ORGANIZERS OPERATING IN THE STATE OF
TEXAS SHALL BE REQUIRED TO FILE WITH THE SECRETARY OF STATE, BEFORE
SOLICITING ANY MEMBERS FOR HIS ORGANIZATION, A WRITTEN REQUEST BY
UNITED STATES MAIL, OR SHALL APPLY IN PERSON FOR AN ORGANIZER'S CARD,
STATING (A) HIS NAME IN FULL; (B) HIS LABOR UNION AFFILIATIONS, IF ANY;
(C) DESCRIBING HIS CREDENTIALS AND ATTACHING THERETO A COPY THEREOF,
WHICH APPLICATION SHALL BE SIGNED BY HIM.  UPON SUCH APPLICATIONS BEING
FILED, THE SECRETARY OF STATE SHALL ISSUE TO THE APPLICANT A CARD ON
WHICH SHALL APPEAR THE FOLLOWING:  (1) THE APPLICANT'S NAME; (2) HIS
UNION AFFILIATION; (3) A SPACE FOR HIS PERSONAL SIGNATURE; (4) A
DESIGNATION, 'LABOR ORGANIZER'; AND, (5) THE SIGNATURE OF THE SECRETARY
OF STATE, DATED AND ATTESTED BY HIS SEAL OF OFFICE.  SUCH ORGANIZER
SHALL AT ALL TIMES, WHEN SOLICITING MEMBERS, CARRY SUCH CARD, AND SHALL
EXHIBIT THE SAME WHEN REQUESTED TO DO SO BY A PERSON BEING SO SOLICITED
FOR MEMBERSHIP." 

SEC. 12.  "THE DISTRICT COURTS OF THIS STATE AND THE JUDGES THEREOF
SHALL HAVE FULL POWER, AUTHORITY AND JURISDICTION, UPON THE APPLICATION
OF THE STATE OF TEXAS, ACTING THROUGH AN ENFORCMENT OFFICER HEREIN
AUTHORIZED, TO ISSUE ANY AND ALL PROPER RESTRAINING ORDERS, TEMPORARY
OR PERMANENT INJUNCTIONS, AND ANY OTHER AND FURTHER WRITS OR PROCESSES
APPROPRIATE TO CARRY OUT AND ENFORCE THE PROVISIONS OF THIS ACT.  SUCH
PROCEEDINGS SHALL BE INSTITUTED, PROSECUTED, TRIED AND HEARD AS OTHER
CIVIL PROCEEDINGS OF LIKE NATURE IN SAID COURTS." 

THE ACT ALSO REQUIRES UNIONS TO FILE ANNUAL REPORTS CONTAINING
SPECIFIED NAMES AND ADDRESSES, A STATEMENT OF INCOME AND EXPENDITURE
WITH THE NAMES OF RECIPIENTS, AND COPIES OF ALL CONTRACTS WITH
EMPLOYERS WHICH INCLUDE A CHECK-OFF CLAUSE.  IT PROHIBITS CHARGING DUES
WHICH "WILL CREATE A FUND IN EXCESS OF THE REASONABLE REQUIREMENTS OF
SUCH UNION," DEMANDING OR COLLECTING ANY FEE FOR THE PRIVILEGE TO WORK
AND PROVIDES FOR LIBERAL CONSTRUCTION TO PREVENT "EXCESSIVE INITIATION
FEES."  ALL OFFICERS, AGENTS, ORGANIZERS AND REPRESENTATIVES MUST BE
ELECTED BY AT LEAST A MAJORITY VOTE.  ALIENS AND FELONS (UNLESS
RESTORED TO CITIZENSHIP) CANNOT BE "OFFICERS, OFFICIALS ...  OR LABOR
ORGANIZERS." 

ADDITIONAL ENFORCEMENT PROVISIONS ARE FOUND IN SEC. 11.  A CIVIL
PENALTY NOT EXCEEDING $1,000 IS IMPOSED "IF ANY LABOR UNION VIOLATES
ANY PROVISION OF THIS ACT," TO BE RECOVERED IN A SUIT IN THE NAME OF
THE STATE, INSTITUTED BY AUTHORIZED OFFICERS.  VIOLATION OF THE STATUTE
BY A UNION OFFICER OR LABOR ORGANIZER IS MADE A MISDEMEANOR, PUNISHABLE
BY FINE OF NOT OVER $500 OR CONFINEMENT IN THE COUNTY JAIL FOR NOT TO
EXCEED 60 DAYS, OR BOTH. 

BY SEC. 2(C), "'LABOR ORGANIZER' SHALL MEAN ANY PERSON WHO FOR A
PECUNIARY OR FINANCIAL CONSIDERATION SOLICITS MEMBERSHIPS IN A LABOR
UNION OR MEMBERS FOR A LABOR UNION."  UNDER THE INTERPRETATION
PROMULGATED BY THE SECRETARY OF STATE, "ANY PERSON WHO SOLICITS
MEMBERSHIPS FOR A UNION AND RECEIVES REMUNERATION THEREFOR, WILL BE
CONSIDERED A 'LABOR ORGANIZER'...  SOLICITATION OF MEMBERSHIPS AS AN
INCIDENT TO OTHER DUTIES FOR WHICH A SALARY IS PAID WILL BE CONSIDERED
SOLICITATION FOR REMUNERATION."    FN2  THE PETITION RECITES THE TIME
AND PLACE OF THE MASS MEETING, THAT THOMAS WAS SCHEDULED TO SPEAK AND
WOULD SOLICIT MEMBERS FOR THE UNION AT THE MEETING WITHOUT AN
ORGANIZER'S CARD.  THE RECITALS WERE BASED ON AN ALLEGED PREVIOUS
ANNOUNCEMENT BY HIM OF INTENTION TO DO THESE THINGS, WHICH AT THE
HEARING HE DENIED HAVING MADE.  THE PETITION STATED THERE WAS "NOT
SUFFICIENT TIME BEFORE THE DEFENDANT MAKES THE THREATENED SPEECH" FOR
NOTICE TO BE SERVED AND RETURNED AND CONCLUDES WITH A PRAYER FOR THE
RESTRAINING ORDER. 

FN3  THE ORDER REPEATED SUBSTANTIALLY THE RECITALS OF THE PETITION,
CONCERNING THE MEETING, THOMAS' SCHEDULED SPEECH AND INTENTION TO
SOLICIT MEMBERS, AS GROUNDS FOR ITS ISSUANCE APPEARING FROM "THE SWORN
PETITION AND STATEMENTS OF COUNSEL," AND ENJOINED THOMAS FROM
SOLICITING MEMBERSHIPS IN AND MEMBERS FOR LOCAL NO. 1002 AND ANY OTHER
UNION AFFILIATED WITH THE C.I.O., WHILE IN TEXAS, WITHOUT FIRST
OBTAINING AN ORGANIZER'S CARD. 

FN4  ACCORDING TO THE REPORT OF THE SPEECH GIVEN IN THE RECORD, IT
REFERS TO THOMAS' INVITATION TO SPEAK AT THE MEETING, HIS ACCEPTANCE,
AND HIS INTENTION TO DISCUSS WHY WORKERS SHOULD JOIN THE UNION AND TO
URGE THOSE PRESENT TO DO SO.  AFTER STATING HE HAD LEARNED, ON ARRIVAL,
THAT HIS RIGHT TO MAKE SUCH A SPEECH WAS QUESTIONED, HE SAID:  "I
DIDN'T COME HERE TO BREAK THE LAW.  I CAME HERE TO MAKE THIS SPEECH AND
TO ASK YOU TO JOIN THE UNION.  BUT SINCE THE ISSUE HAS ARISEN I DON'T
WANT ANYBODY TO SAY THAT I'M EVADING IT  ...  TO HAVE AN OPENING TO GET
OUT WITHOUT MAKING A TEST OF THIS LAW  ....  THEREFORE AS VICE
PRESIDENT OF THE C.I.O. AND AS A UNION MAN, I EARNESTLY ASK THOSE OF
YOU WHO ARE NOT NOW MEMBERS OF THE OIL WORKERS INTERNATIONAL UNION TO
JOIN NOW.  I SOLICIT YOU TO BECOME A MEMBER OF THE UNION OF YOUR FELLOW
WORKERS AND THEREBY JOIN HANDS WITH LABOR THROUGHOUT THIS COUNTRY IN
ALL INDUSTRIES  ...." 

FN5  THOMAS TESTIFIED HIS INVITATION TO O'SULLIVAN WAS AS FOLLOWS:
"I SAID, 'PAT O'SULLIVAN, I WANT YOU TO JOIN THE OIL WORKERS UNION.  I
HAVE SOME APPLICATION CARDS HERE, AND I WOULD LIKE TO HAVE YOU SIGN
ONE.'  I WENT ON FROM THERE AND I ASKED EVERYBODY IN THE CROWD WHO WAS
NOT A MEMBER OF THE ORGANIZATION TO COME UP AND IF IT WAS NECESSARY I
WOULD PERSONALLY SIGN HIM TO THESE APPLICATION CARDS." 

THOMAS' ACCOUNT OF WHAT OCCURRED AT THE MEETING IS SUBSTANTIATED BY
THE TESTIMONY OF JESSE OWENS, ASSISTANT ATTORNEY GENERAL OF TEXAS, WHO
WAS PRESENT. 

FN6  THE MOTION RECITED THAT THOMAS "(1)  ...  DID AT SAID TIME AND
PLACE SOLICIT PAT O'SULLIVAN ...  TO JOIN A LOCAL UNION" OF O.W.I.U.
AND "(2)  AT SAID TIME AND PLACE  ...  DID OPENLY AND PUBLICLY SOLICIT
AN AUDIENCE OF APPROXIMATELY 300 PERSONS  ...  TO THEN AND THERE JOIN
AND BECOME MEMBERS" OF O.W.I.U., CHARGED THAT "THE ACTS OF R. J. THOMAS
ABOVE ALLEGED WERE IN OPEN AND FLAGRANT VIOLATION" OF THE COURT'S ORDER
AND WRIT AND ALLEGED THAT "SAID ACTS CONSTITUTE CONTEMPT OF THIS COURT
AND SHOULD BE PUNISHED BY APPROPRIATE ORDER." 

FN7  THE COURT REVIEWED THE CONTEMPT COMMITMENT OVER APPELLEE'S
STRENUOUS JURISDICTIONAL OBJECTIONS.  SINCE THE STATE COURT HAS
DETERMINED THE VALIDITY OF THE STATUTE AND ITS APPLICATION IN THE
HABEAS CORPUS PROCEEDING, AS AGAINST THE OBJECTIONS ON FEDERAL
CONSTITUTIONAL GROUNDS, THOSE QUESTIONS ARE PROPERLY HERE ON THIS
APPEAL.  BRYANT V. ZIMMERMAN, 278 U.S. 63.  THE STATE CONCEDES THIS. 

FN8 CANTWELL V. CONNECTICUT, 310 U.S. 296; COX V. NEW HAMPSHIRE, 312
U.S. 569; CITY OF MANCHESTER V. LEIBY, 117 F.2D 661. 

FN9  HOWEVER, THE RECORD SHOWS HE OFFERED TO SIGN THE APPLICATION
BLANKS OR CARDS "IF IT WAS NECESSARY."  CF. NOTE 5 SUPRA. 

FN10  "HE ACTS FOR AN ALLEGED PRINCIPAL AND COLLECTS MONEY FOR THE
PRINCIPAL, OR IF HE DOES NOT ACTUALLY COLLECT FEES AND DUES IN PERSON,
HE MAKES IT POSSIBLE FOR HIS PRINCIPAL TO COLLECT THEM.  HE PURPORTS TO
ACT FOR A LABOR UNION IN ESTABLISHING A CONTRACTUAL RELATION  ...." 
THE STATEMENTS ARE TAKEN FROM THE BRIEF. 

FN11  "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," CITING FOR COMPARISON LEWIS PUBLISHING CO. V. MORGAN,
299 U.S. 288, 306-310; BRYANT V. ZIMMERMAN, 278 U.S. 63, 72.  CF. TEXT
INFRA AT NOTE 23. 

FN12  CF. SCHENCK V. UNITED STATES, 249 U.S. 47; MR. JUSTICE HOLMES
DISSENTING IN ABRAMS V. UNITED STATES, 250 U.S. 616, 624 AND IN GITLOW
V. NEW YORK, 268 U.S. 652, 672; BRIDGES V. CALIFORNIA, 314 U.S. 252.  A
RECENT STATEMENT IS THAT MADE IN WEST VIRGINIA STATE BOARD OF EDUCATION
V. BARNETTE, 319 U.S. 624, 639:  "THE RIGHT OF A STATE TO REGULATE, FOR
EXAMPLE, A PUBLIC UTILITY MAY WELL INCLUDE, SO FAR AS THE DUE PROCESS
TEST IS CONCERNED, POWER TO IMPOSE ALL OF THE RESTRICTIONS WHICH A
LEGISLATURE MAY HAVE A 'RATIONAL BASIS' FOR ADOPTING.  BUT FREEDOMS OF
SPEECH AND OF PRESS, OF ASSEMBLY, AND OF WORSHIP MAY NOT BE INFRINGED
ON SUCH SLENDER GROUNDS.  THEY ARE SUSCEPTIBLE OF RESTRICTION ONLY TO
PREVENT GRAVE AND IMMEDIATE DANGER TO INTERESTS WHICH THE STATE MAY
LAWFULLY PROTECT." 

FN13  ACCORDING TO THE BRIEF, "THE ANALOGY IS THAT INTERSTATE
COMMERCE LIKE FREEDOM OF RELIGION, SPEECH AND PRESS IS PROTECTED FROM
UNDUE BURDENS IMPOSED BY THE STATES, YET THE STATES STILL HAVE
AUTHORITY TO IMPOSE REGULATIONS WHICH ARE REASONABLE IN RELATION TO THE
SUBJECT." 

FN14  THE ARGUMENT, BOTH AT THE BAR AND IN THE BRIEF, HAS BEEN
INDEFINITE IN THIS RESPECT.  IT HAS NEITHER CONCEDED NOR UNEQUIVOCALLY
DENIED THAT THE SENTENCE WAS IMPOSED ON ACCOUNT OF BOTH ACTS. 
NEVERTHELESS THE STATE MAINTAINS THAT THE INVITATION TO O'SULLIVAN IN
ITSELF IS SUFFICIENT TO SUSTAIN THE JUDGMENT AND SENTENCE AND THAT
NOTHING MORE NEED BE CONSIDERED TO SUPPORT THEM. 

FN15  THAT THE COURT REGARDED THE VIOLATION AS CONSISTING OF BOTH
ACTS APPEARS FROM THE STATEMENT IN THE OPINION THAT THOMAS "VIOLATED
THE TERMS OF THE INJUNCTION BY SOLICITING MEMBERS FOR SAID UNION
WITHOUT HAVING FIRST REGISTERED  ..."  THE PLURAL COULD HAVE BEEN USED
ONLY IF THE GENERAL PLATFORM PLEA WERE CONSIDERED AS BEING ONE OF THE
VIOLATIONS RESTRAINED AND PUNISHED. 

FN16  THE EX PARTE PETITION FOR THE ORDER WAS FOUNDED SOLELY UPON THE
ALLEGATION, BASED ONLY UPON RUMOR AS LATER APPEARED FROM THOMAS'
UNCONTRADICTED TESTIMONY, THAT HE INTENDED TO ADDRESS THE MEETING AND
IN THE COURSE OF HIS SPEECH GENERALLY TO SOLICIT NONUNION MEN PRESENT
TO JOIN THE UNION.  CF. NOTE 2 SUPRA.  WHEN THE PETITION WAS FILED AND
THE RESTRAINING ORDER WAS ISSUED AND SERVED, IT WAS NOT POSSIBLE TO
SPECIFY ANTICIPATED INDIVIDUAL SOLICITATIONS AND CONSEQUENTLY ONLY
ANTICIPATED GENERAL ONES COULD BE AND WERE RELIED UPON.  THE ORDER
THEREFORE MUST BE TAKEN TO HAVE BEEN INTENDED TO REACH EXACTLY WHAT IT
WAS REQUESTED TO GET AT.  CF. NOTE 3 SUPRA; AND TEXT INFRA AT NOTE 20
FF. 

FN17  THE MOTION AFTER RECITING THE SOLICITATION OF O'SULLIVAN AND
ADDING THAT THOMAS "DID OPENLY AND PUBLICLY SOLICIT AN AUDIENCE OF
APPROXIMATELY 300 PERSONS  ...," CLAIMED BOTH ACTS AS BEING "IN OPEN
AND FLAGRANT VIOLATION OF THE ORDER OF THIS COURT" AND AS CONTEMPT, AND
SOUGHT PUNISHMENT FOR THEM. 

FN18  THE ORDER MADE THE USUAL FORMAL RECITALS CONCERNING THE
PREVIOUS PROCEEDINGS, THE PARTIES' APPEARANCE AND THE COURT'S "HAVING
HEARD THE PLEADINGS AND EVIDENCE."  IT THEN, WITHOUT STATING THE
PARTICULAR ACTS IN WHICH THE CONTEMPT CONSISTED, CF. NOTE 17 SUPRA,
FOUND GENERALLY THAT THOMAS "DID IN HARRIS COUNTY, TEXAS, ON THE 23D
DAY OF SEPTEMBER A.D. 1943, VIOLATE THIS COURT'S TEMPORARY RESTRAINING
ORDER HERETOFORE ISSUED INJOINING AND RESTRAINING HIM  ...  FROM
SOLICITING MEMBERS TO JOIN" THE O.W.I.U. WITHOUT OBTAINING AN
ORGANIZER'S CARD, ADJUDGED HIM GUILTY OF CONTEMPT "FOR THE VIOLATION OF
THE LAW AND OF THE ORDER OF THIS COURT ON THE 23D DAY OF SEPTEMBER,
A.D. 1943," AND ASSESSED THE PUNISHMENT AS STATED ABOVE. 

FN19  CF. NOTE 12 SUPRA. 

FN20  SEE NOTE 1 SUPRA.  ACCORDING TO THE STATE'S CONCESSION, THOMAS
MIGHT HAVE MADE SPEECHES "LAUDING UNIONS AND UNIONISM" THROUGHOUT TEXAS
WITHOUT VIOLATING THE STATUTE OR THE ORDER.  AND AT EACH ADDRESS HE
COULD HAVE TAKEN A COLLECTION OR SOUGHT AND RECEIVED CONTRIBUTIONS FOR
THE UNION, OR FOR HIMSELF, WITHOUT RUNNING AFOUL THEIR PROHIBITIONS;
THAT IS, ALWAYS IF IN DOING SO HE AVOIDED USING WORDS OF INVITATION TO
UNORGANIZED WORKERS TO JOIN A C.I.O. UNION. 

FN21  LABOR BOARD V. FORD MOTOR CO., 114 F.2D 905(C.C.A.); LABOR
BOARD V. AMERICAN TUBE BENDING CO., 134 F.2D 993(C.C.A.); COMPARE TEXAS
& N.O.R. CO. V. BROTHERHOOD OF CLERKS, 281 U.S. 548, 568. 

FN22  LABOR BOARD V. TROJAN POWDER CO., 135 F.2D 337(C.C.A.); LABOR
BOARD V. NEW ERA DIE CO., 118 F.2D 500; CF. LABOR BOARD V. FRIEDMAN
HARRY MARKS CLOTHING CO., 301 U.S. 58; INTERNATIONAL ASSOCIATION OF
MACHINISTS V. LABOR BOARD, 311 U.S. 72.  COMPARE TEXAS & N.O.R. CO. V.
BROTHERHOOD OF CLERKS, 281 U.S. 548. 

FN23 CF. NOTE 11 SUPRA. 

FN24  IN SECURING THE DETAILED INFORMATION SEC. 5 REQUIRES, CF. NOTE
1 SUPRA, THE SECRETARY OF STATE HAS ESTABLISHED AN ADMINISTRATIVE
ROUTINE FOR COMPLIANCE, WHICH INCLUDES A FORM OF APPLICATION REQUIRING
THE APPLICANT TO STATE:  (1) HIS NAME; (2) HIS ADDRESS; (3) HIS LABOR
UNION AFFILIATIONS ("SPECIFY DEFINITELY AND FULLY"); (4) THAT "AS
EVIDENCE OF MY AUTHORITY TO ACT AS LABOR ORGANIZER FOR THE LABOR UNION
WITH WHICH I AM CONNECTED, I AM FURNISHING THE FOLLOWING CREDENTIALS";
(5) A COPY OF SUCH CREDENTIALS; (6) THAT HE IS A CITIZEN OF THE UNITED
STATES OF AMERICA; (7) WHETHER HE HAS EVER BEEN CONVICTED OF A FELONY
IN TEXAS OR IN ANY OTHER STATE; AND (A) IF SO, THE NATURE OF THE
OFFENSE AND THE STATE IN WHICH CONVICTION WAS HAD; (B) WHETHER HIS
RIGHTS OF CITIZENSHIP HAVE BEEN FULLY RESTORED; AND (C) BY WHAT
AUTHORITY. 

THE SECRETARY OF STATE TESTIFIED THAT CARDS WERE ISSUED AS OF COURSE
IF THE APPLICATION BLANKS WERE PROPERLY FILLED IN.  BUT IN HIS
INTERPRETATIVE STATEMENT, ISSUED TO THE GENERAL PUBLIC, HE SAID:  "IN
THE ABSENCE OF MISTAKE, FRAUD OR MISREPRESENTATION WITH RESPECT TO
SECURING SAME, IT IS CONSIDERED THAT THE SECRETARY OF STATE HAS NO
DISCRETION IN THE GRANTING OF AN 'ORGANIZER'S CARD,' AND THAT THE
APPLICANT WILL BE ENTITLED TO SAME UPON COMPLIANCE WITH THE ACT.  IT
WILL BE REQUIRED, HOWEVER, THAT THE APPLICANT SHOW A BONA FIDE
AFFILIATION WITH AN EXISTING LABOR UNION."  PRECISELY WHAT
"CREDENTIALS" OR EVIDENCE IN CONNECTION WITH THE FELONY INQUIRY OR
SHOWING OF BONA FIDE AFFILIATION WILL SATISFY THE SECRETARY IS NOT MADE
CLEAR ON THE RECORD.  AND, ACCORDING TO THE TEXAS COURT'S DECISION,
"ALL WHO COME WITHIN THE PROVISIONS OF THE ACT UPON THEIR GOOD-FAITH
COMPLIANCE THEREWITH" ARE ENTITLED TO RECEIVE THE CARD.  COMPLIANCE
UNDER THE DECISION, IT WOULD SEEM, REQUIRES THE SECRETARY TO DETERMINE
THE GOOD FAITH OF THE APPLICATION, AND THUS THE SUFFICIENCY OF THE
AUTHORITY TO ACT FOR THE UNION REPRESENTED.  WHETHER, IN SOME INSTANCES
AT LEAST, THESE DETERMINATIONS WOULD GO BEYOND "MERELY MINISTERIAL"
ACTION AND REQUIRE THE EXERCISE OF DISCRETION, OR THE TIME REQUIRED TO
COMPLY, BY COMPLETING THE ROUTINE, WOULD SO ADD TO THE BURDEN THAT
THESE THINGS MIGHT AMOUNT TO UNDUE PREVIOUS RESTRAINT OR CENSORSHIP,
WHERE MERE REGISTRATION OR PREVIOUS IDENTIFICATION MIGHT NOT DO SO,
NEED NOT BE DETERMINED. 

FROM THE TIME THE ACT BECAME EFFECTIVE IN AUGUST, 1943, UNTIL THE THE
DATE OF TRIAL, SEPTEMBER 25, 1943, 223 LABOR ORGANIZERS' CARDS WERE
ISSUED.  DURING THAT PERIOD 40 OR 50 APPLICATIONS FOR CARDS WERE
RETURNED TO THE APPLICANTS FOR FAILURE TO FILL IN THE INFORMATION
REQUESTED OR TO SIGN THE APPLICATION OR TO ATTACH CREDENTIALS.  OF
THOSE ALL BUT 15 OR 20 HAVE BEEN RESUBMITTED AND CARDS WERE GRANTED. 
NO APPLICATION HAS BEEN "POSITIVELY DENIED" SINCE THE ACT BECAME
EFFECTIVE. 

MR. JUSTICE DOUGLAS, CONCURRING. 

THE INTIMATION THAT THE PRINCIPLE ANNOUNCED IN THIS CASE SERVES LABOR
ALONE AND NOT AN EMPLOYER HAS BEEN ADEQUATELY ANSWERED IN THE OPINION
OF THE COURT IN WHICH I JOIN.  BUT THE EMPHASIS ON SUCH CASES AS LABOR
BOARD V. VIRGINIA ELECTRIC & POWER CO., 314 U.S. 469, AND VIRGINIA
ELECTRIC & POWER CO. V. LABOR BOARD, 319 U.S. 533, TO PROVE THAT
DISCRIMINATION EXISTS MOVES ME TO ADD THESE WORDS.  THOSE CASES WOULD
BE RELEVANT HERE IF WE WERE DEALING WITH LEGISLATION WHICH REGULATED
THE RELATIONS BETWEEN UNIONS AND THEIR MEMBERS.  CF. STEELE V.
LOUISVILLE & NASHVILLE R. CO., ANTE, P. 192.  NO ONE MAY BE REQUIRED TO
OBTAIN A LICENSE IN ORDER TO SPEAK.  BUT ONCE HE USES THE ECONOMIC
POWER WHICH HE HAS OVER OTHER MEN AND THEIR JOBS TO INFLUENCE THEIR
ACTION, HE IS DOING MORE THAN EXERCISING THE FREEDOM OF SPEECH
PROTECTED BY THE FIRST AMENDMENT.  THAT IS TRUE WHETHER HE BE AN
EMPLOYER OR AN EMPLOYEE.  BUT AS LONG AS HE DOES NO MORE THAN SPEAK HE
HAS THE SAME UNFETTERED RIGHT, NO MATTER WHAT SIDE OF AN ISSUE HE
ESPOUSES. 

MR. JUSTICE BLACK AND MR. JUSTICE MURPHY JOIN IN THIS OPINION. 

MR. JUSTICE JACKSON, CONCURRING. 

AS FREQUENTLY IS THE CASE, THIS CONTROVERSY IS DETERMINED AS SOON AS
IT IS DECIDED WHICH OF TWO WELL-ESTABLISHED, BUT AT TIMES OVERLAPPING,
CONSTITUTIONAL PRINCIPLES WILL BE APPLIED TO IT.  THE STATE OF TEXAS
STANDS ON ITS WELL-SETTLED RIGHT REASONABLY TO REGULATE THE PURSUIT OF
A VOCATION, INCLUDING - WE MAY ASSUME - THE OCCUPATION OF LABOR
ORGANIZER.  THOMAS, ON THE OTHER HAND, STANDS ON THE EQUALLY CLEAR
PROPOSITION THAT TEXAS MAY NOT INTERFERE WITH THE RIGHT OF ANY PERSON
PEACEABLY AND FREELY TO ADDRESS A LAWFUL ASSEMBLAGE OF WORKMEN INTENT
ON CONSIDERING LABOR GRIEVANCES.    THOUGH THE ONE MAY SHADE INTO THE
OTHER, A ROUGH DISTINCTION ALWAYS EXISTS, I THINK, WHICH IS MORE
SHORTLY ILLUSTRATED THAN EXPLAINED.  A STATE MAY FORBID ONE WITHOUT ITS
LICENSE TO PRACTICE LAW AS A VOCATION, BUT I THINK IT COULD NOT STOP AN
UNLICENSED PERSON FROM MAKING A SPEECH ABOUT THE RIGHTS OF MAN OR THE
RIGHTS OF LABOR, OR ANY OTHER KIND OF RIGHT, INCLUDING RECOMMENDING
THAT HIS HEARERS ORGANIZE TO SUPPORT HIS VIEWS.  LIKEWISE, THE STATE
MAY PROHIBIT THE PURSUIT OF MEDICINE AS AN OCCUPATION WITHOUT ITS
LICENSE, BUT I DO NOT THINK IT COULD MAKE IT A CRIME PUBLICLY OR
PRIVATELY TO SPEAK URGING PERSONS TO FOLLOW OR REJECT ANY SCHOOL OF
MEDICAL THOUGHT.  SO THE STATE TO AN EXTENT NOT NECESSARY NOW TO
DETERMINE MAY REGULATE ONE WHO MAKES A BUSINESS OR A LIVELIHOOD OF
SOLICITING FUNDS OR MEMBERSHIPS FOR UNIONS.  BUT I DO NOT THINK IT CAN
PROHIBIT ONE, EVEN IF HE IS A SALARIED LABOR LEADER, FROM MAKING AN
ADDRESS TO A PUBLIC MEETING OF WORKMEN, TELLING THEM THEIR RIGHTS AS HE
SEES THEM AND URGING THEM TO UNITE IN GENERAL OR TO JOIN A SPECIFIC
UNION. 

THIS WIDER RANGE OF POWER OVER PURSUIT OF A CALLING THAN OVER SPEECH
MAKING IS DUE TO THE DIFFERENT EFFECTS WHICH THE TWO HAVE ON INTERESTS
WHICH THE STATE IS EMPOWERED TO PROTECT.  THE MODERN STATE OWES AND
ATTEMPTS TO PERFORM A DUTY TO PROTECT THE PUBLIC FROM THOSE WHO SEEK
FOR ONE PURPOSE OR ANOTHER TO OBTAIN ITS MONEY.  WHEN ONE DOES SO
THROUGH THE PRACTICE OF A CALLING, THE STATE MAY HAVE AN INTEREST IN
SHIELDING THE PUBLIC AGAINST THE UNTRUSTWORTHY, THE INCOMPETENT, OR THE
IRRESPONSIBLE, OR AGAINST UNAUTHORIZED REPRESENTATION OF AGENCY.  A
USUAL METHOD OF PERFORMING THIS FUNCTION IS THROUGH A LICENSING
SYSTEM. 

BUT IT CANNOT BE THE DUTY, BECAUSE IT IS NOT THE RIGHT, OF THE STATE
TO PROTECT THE PUBLIC AGAINST FALSE DOCTRINE.  THE VERY PURPOSE OF THE
FIRST AMENDMENT IS TO FORECLOSE PUBLIC AUTHORITY FROM ASSUMING A
GUARDIANSHIP OF THE PUBLIC MIND THROUGH REGULATING THE PRESS, SPEECH,
AND RELIGION.  IN THIS FIELD EVERY PERSON MUST BE HIS OWN WATCHMAN FOR
TRUTH, BECAUSE THE FOREFATHERS DID NOT TRUST ANY GOVERNMENT TO SEPARATE
THE TRUE FROM THE FALSE FOR US.  WEST VIRGINIA STATE BOARD OF EDUCATION
V. BARNETTE, 319 U.S. 624.  NOR WOULD I. VERY MANY ARE THE INTERESTS
WHICH THE STATE MAY PROTECT AGAINST THE PRACTICE OF AN OCCUPATION, VERY
FEW ARE THOSE IT MAY ASSUME TO PROTECT AGAINST THE PRACTICE OF
PROPAGANDIZING BY SPEECH OR PRESS.  THESE ARE THEREBY LEFT GREAT RANGE
OF FREEDOM. 

THIS LIBERTY WAS NOT PROTECTED BECAUSE THE FOREFATHERS EXPECTED ITS
USE WOULD ALWAYS BE AGREEABLE TO THOSE IN AUTHORITY OR THAT ITS
EXERCISE ALWAYS WOULD BE WISE, TEMPERATE, OR USEFUL TO SOCIETY.  AS I
READ THEIR INTENTIONS, THIS LIBERTY WAS PROTECTED BECAUSE THEY KNEW OF
NO OTHER WAY BY WHICH FREE MEN COULD CONDUCT REPRESENTATIVE DEMOCRACY. 
FN1 

THE NECESSITY FOR CHOOSING COLLECTIVE BARGAINING REPRESENTATIVES
BRINGS THE SAME NATURE OF PROBLEM TO GROUPS OF ORGANIZING WORKMEN THAT
OUR REPRESENTATIVE DEMOCRATIC PROCESSES BRING TO THE NATION.  THEIR
SMALLER SOCIETY, TOO, MUST CHOOSE BETWEEN RIVAL LEADERS AND COMPETING
POLICIES.  THIS SHOULD NOT BE AN UNDERGROUND PROCESS.  THE UNION OF
WHICH THOMAS IS THE HEAD WAS ONE OF THE CHOICES OFFERED TO THESE
WORKERS, AND TO ME IT WAS IN THE BEST AMERICAN TRADITION THAT THEY
HIRED A HALL AND ADVERTISED A MEETING, AND THAT THOMAS WENT THERE AND
PUBLICLY FACED HIS LABOR CONSTITUENTS.  HOW BETTER COULD THESE MEN
LEARN WHAT THEY MIGHT BE GETTING INTO?  BY HIS PUBLIC APPEARANCE AND
SPEECH HE WOULD DISCLOSE HIMSELF AS A TEMPERATE MAN OR A VIOLENT ONE, A
REASONABLE LEADER THAT WELL-DISPOSED WORKMEN COULD FOLLOW OR AN
IRRESPONSIBLE ONE FROM WHOM THEY MIGHT EXPECT DISAPPOINTMENT, AN
EARNEST AND UNDERSTANDING LEADER OR A SELF-SEEKER.  IF FREE SPEECH
ANYWHERE SERVES A USEFUL SOCIAL PURPOSE, TO BE JEALOUSLY GUARDED, I
SHOULD THINK IT WOULD BE IN SUCH A RELATIONSHIP. 

BUT IT IS SAID THAT THOMAS URGED AND INVITED ONE AND ALL TO JOIN HIS
UNION, AND SO HE DID.  THIS, IT IS SAID, MAKES THE SPEECH SOMETHING
ELSE THAN A SPEECH; IT HAS BEEN FOUND BY THE TEXAS COURTS TO BE A
"SOLICITATION" AND THEREFORE ITS IMMUNITY FROM STATE REGULATION IS HELD
TO BE LOST.  IT IS NOT OFTEN IN THIS COUNTRY THAT WE NOW MEET WITH
DIRECT AND CANDID EFFORTS TO STOP SPEAKING OR PUBLICATION AS SUCH. 
MODERN INROADS ON THESE RIGHTS COME FROM ASSOCIATING THE SPEAKING WITH
SOME OTHER FACTOR WHICH THE STATE MAY REGULATE SO AS TO BRING THE WHOLE
WITHIN OFFICIAL CONTROL.  HERE, SPEECH ADMITTEDLY OTHERWISE BEYOND THE
REACH OF THE STATES IS ATTEMPTED TO BE BROUGHT WITHIN ITS LICENSING
SYSTEM BY ASSOCIATING IT WITH "SOLICITATION."  SPEECH OF EMPLOYERS
OTHERWISE BEYOND REACH OF THE FEDERAL GOVERNMENT IS BROUGHT WITHIN THE
LABOR BOARD'S POWER TO SUPPRESS BY ASSOCIATING IT WITH "COERCION" OR
"DOMINATION."  SPEECH OF POLITICAL MALCONTENTS IS SOUGHT TO BE REACHED
BY ASSOCIATING IT WITH SOME VARIETY OF "SEDITION."  WHETHER IN A
PARTICULAR CASE THE ASSOCIATION OR CHARACTERIZATION IS A PROVEN AND
VALID ONE OFTEN IS DIFFICULT TO RESOLVE.  IF THIS COURT MAY NOT OR DOES
NOT IN PROPER CASES INQUIRE WHETHER SPEECH OR PUBLICATION IS PROPERLY
CONDEMNED BY ASSOCIATION, ITS CLAIM TO GUARDIANSHIP OF FREE SPEECH AND
PRESS IS BUT A HOLLOW ONE. 

FREE SPEECH ON BOTH SIDES AND FOR EVERY FACTION ON ANY SIDE OF THE
LABOR RELATION IS TO ME A CONSTITUTIONAL AND USEFUL RIGHT.  LABOR IS
FREE TO TURN ITS PUBLICITY ON ANY LABOR OPPRESSION, SUBSTANDARD WAGES,
EMPLOYER UNFAIRNESS, OR OBJECTIONABLE WORKING CONDITIONS.  THE
EMPLOYER, TOO, SHOULD BE FREE TO ANSWER, AND TO TURN PUBLICITY ON THE
RECORDS OF THE LEADERS OR THE UNIONS WHICH SEEK THE CONFIDENCE OF HIS
MEN.  AND IF THE EMPLOYEES OR ORGANIZERS ASSOCIATE VIOLENCE OR OTHER
OFFENSE AGAINST THE LAWS WITH LABOR'S FREE SPEECH, OR IF THE EMPLOYER'S
SPEECH IS ASSOCIATED WITH DISCRIMINATORY DISCHARGES OR INTIMIDATION,
THE CONSTITUTIONAL REMEDY WOULD BE TO STOP THE EVIL, BUT PERMIT THE
SPEECH, IF THE TWO ARE SEPARABLE; AND ONLY RARELY AND WHEN THEY ARE
INSEPARABLE TO STOP OR PUNISH SPEECH OR PUBLICATION. 

BUT I MUST ADMIT THAT IN OVERRIDING THE FINDINGS OF THE TEXAS COURT
WE ARE APPLYING TO THOMAS A RULE THE BENEFIT OF WHICH IN ALL ITS
BREADTH AND VIGOR THIS COURT DENIES TO EMPLOYERS IN NATIONAL LABOR
RELATIONS BOARD CASES.  CF. LABOR BOARD V. VIRGINIA ELECTRIC & POWER
CO., 314 U.S. 469, 479; VIRGINIA ELECTRIC & POWER CO. V. LABOR BOARD,
319 U.S. 533; TROJAN POWDER CO. V. LABOR BOARD, 135 F.2D 337, CERT.
DENIED, 320 U.S. 768; LABOR BOARD V. AMERICAN TUBE BENDING CO., 134
F.2D 993, CERT. DENIED, 320 U.S. 768; ELASTIC STOP NUT CORP. V. LABOR
BOARD, 142 F.2D 371, CERT. DENIED, POST, P. 722.  HOWEVER, THE REMEDY
IS NOT TO ALLOW TEXAS IMPROPERLY TO DENY THE RIGHT OF FREE SPEECH BUT
TO APPLY THE SAME RULE AND SPIRIT TO FREE SPEECH CASES WHOEVER THE
SPEAKER. 

I CONCUR IN THE OPINION OF MR. JUSTICE RUTLEDGE THAT THIS CASE FALLS
IN THE CATEGORY OF A PUBLIC SPEECH, RATHER THAN THAT OF PRACTICING A
VOCATION AS SOLICITOR.  TEXAS DID NOT WAIT TO SEE WHAT THOMAS WOULD SAY
OR DO.  I CANNOT ESCAPE THE IMPRESSION THAT THE INJUNCTION SOUGHT
BEFORE HE HAD REACHED THE STATE WAS AN EFFORT TO FORESTALL HIM FROM
SPEAKING AT ALL AND THAT THE CONTEMPT IS BASED IN PART AT LEAST ON THE
FACT THAT HE DID MAKE A PUBLIC LABOR SPEECH. 

I CONCUR IN REVERSING THE JUDGMENT. 

FN1  WOODROW WILSON PUT THE CASE FOR FREE SPEECH IN THIS CONNECTION
APTLY:  "I HAVE ALWAYS BEEN AMONG THOSE WHO BELIEVED THAT THE GREATEST
FREEDOM OF SPEECH WAS THE GREATEST SAFETY, BECAUSE IF A MAN IS A FOOL,
THE BEST THING TO DO IS TO ENCOURAGE HIM TO ADVERTISE THE FACT BY
SPEAKING.  IT CANNOT BE SO EASILY DISCOVERED IF YOU ALLOW HIM TO REMAIN
SILENT AND LOOK WISE, BUT IF YOU LET HIM SPEAK, THE SECRET IS OUT AND
THE WORLD KNOWS THAT HE IS A FOOL.  SO IT IS BY THE EXPOSURE OF FOLLY
THAT IT IS DEFEATED; NOT BY THE SECLUSION OF FOLLY, AND IN THIS FREE
AIR OF FREE SPEECH MEN GET INTO THAT SORT OF COMMUNICATION WITH ONE
ANOTHER WHICH CONSTITUTES THE BASIS OF ALL COMMON ACHIEVEMENT." 
ADDRESS AT THE INSTITUTE OF FRANCE, PARIS, MAY 10, 1919.  2 SELECTED
LITERARY AND POLITICAL PAPERS AND ADDRESSES OF WOODROW WILSON (1926)
333. 

MR. JUSTICE ROBERTS. 

THE RIGHT TO EXPRESS THOUGHTS FREELY AND TO DISSEMINATE IDEAS FULLY
IS SECURED BY THE CONSTITUTION AS BASIC TO THE CONCEPTION OF OUR
GOVERNMENT.  A LONG SERIES OF CASES HAS APPLIED THESE FUNDAMENTAL
RIGHTS IN A GREAT VARIETY OF CIRCUMSTANCES N1.  NOT UNTIL TODAY,
HOWEVER, HAS IT BEEN QUESTIONED THAT THERE WAS ANY CLASH BETWEEN THIS
RIGHT TO THINK ONE'S THOUGHTS AND TO EXPRESS THEM AND THE RIGHT OF
PEOPLE TO BE PROTECTED IN THEIR DEALINGS WITH THOSE WHO HOLD THEMSELVES
OUT IN SOME PROFESSIONAL CAPACITY BY REQUIRING REGISTRATION OF THOSE
WHO PROFESS TO PURSUE SUCH CALLINGS.  DOCTORS AND NURSES, LAWYERS AND
NOTARIES, BANKERS AND ACCOUNTANTS, INSURANCE AGENTS AND SOLICITORS OF
EVERY KIND IN EVERY STATE OF THIS UNION HAVE TRADITIONALLY BEEN UNDER
DUTY TO MAKE SOME IDENTIFICATION OF THEMSELVES AS PRACTITIONERS OF
THEIR CALLING.  THE QUESTION BEFORE US IS AS TO THE POWER OF TEXAS TO
CALL FOR SUCH REGISTRATION WITHIN LIMITS PRECISELY DEFINED BY THE
SUPREME COURT OF THAT STATE IN SUSTAINING THE STATUTE NOW CHALLENGED. 
THE MOST ACCURATE WAY TO STATE THE ISSUE IS TO QUOTE THE CONSTRUCTION
WHICH THAT COURT PLACED UPON THE TEXAS STATUTE AND THE EXACT LIMITS OF
ITS REQUIREMENT: 

"A CAREFUL READING OF THE SECTION OF THE LAW HERE UNDER CONSIDERATION
WILL DISCLOSE THAT IT DOES NOT INTERFERE WITH THE RIGHT OF THE
INDIVIDUAL LAY MEMBERS OF UNIONS TO SOLICIT OTHERS TO JOIN THEIR
ORGANIZATION.  IT DOES NOT AFFECT THEM AT ALL.  IT APPLIES ONLY TO
THOSE ORGANIZERS WHO FOR A PECUNIARY OR FINANCIAL CONSIDERATION SOLICIT
SUCH MEMBERSHIP.  IT AFFECTS ONLY THE RIGHT OF ONE TO ENGAGE IN THE
BUSINESS AS A PAID ORGANIZER, AND NOT THE MERE RIGHT OF AN INDIVIDUAL
TO EXPRESS HIS VIEWS ON THE MERITS OF THE UNION.  FURTHERMORE, IT WILL
BE NOTED THAT THE ACT DOES NOT REQUIRE A PAID ORGANIZER TO SECURE A
LICENSE, BUT MERELY REQUIRES HIM TO REGISTER AND IDENTIFY HIMSELF AND
THE UNION FOR WHICH HE PROPOSES TO OPERATE BEFORE BEING PERMITTED TO
SOLICIT MEMBERS FOR SUCH UNION.  THE ACT CONFERS NO UNBRIDLED
DISCRETION ON THE SECRETARY OF STATE TO GRANT OR WITHHOLD A
REGISTRATION CARD AT HIS WILL, BUT MAKES IT HIS MANDATORY DUTY TO
ACCEPT THE REGISTRATION AND ISSUE THE CARD TO ALL WHO COME WITHIN THE
PROVISIONS OF THE ACT UPON THEIR GOOD-FAITH COMPLIANCE THEREWITH." 

THE RECORD DISCLOSES THAT TEXAS, IN THE EXERCISE OF HER POLICE POWER,
HAS ADOPTED A STATUTE REGULATING LABOR UNIONS.  WITH MANY OF ITS
PROVISIONS WE ARE NOT PRESENTLY CONCERNED.  THE CONSTITUTIONAL VALIDITY
OF BUT A SINGLE SECTION IS DRAWN IN QUESTION.  THAT SECTION REQUIRES
EVERY "LABOR UNION ORGANIZER" (DEFINED BY THE ACT AS A PERSON "WHO FOR
A PECUNIARY OR FINANCIAL CONSIDERATION SOLICITS MEMBERSHIPS IN A LABOR
UNION OR MEMBERS FOR A LABOR UNION") TO REQUEST, IN WRITING, OF THE
SECRETARY OF STATE, OR PERSONALLY TO APPLY TO THE SECRETARY FOR AN
"ORGANIZER'S CARD," BEFORE SOLICITING MEMBERS FOR HIS ORGANIZATION, AND
TO GIVE HIS NAME, HIS UNION AFFILIATION, AND HIS UNION CREDENTIALS. 
FN2  THE SECRETARY IS THEN TO ISSUE TO HIM A CARD SHOWING HIS NAME AND
AFFILIATION, WHICH IS TO BE SIGNED BY HIM AND ALSO SIGNED AND SEALED BY
THE SECRETARY OF STATE, AND IS TO BEAR THE DESIGNATION "LABOR
ORGANIZER."  IT IS MADE THE DUTY OF THE ORGANIZER TO CARRY THE CARD
AND, ON REQUEST, TO EXHIBIT IT TO ANY PERSON HE SOLICITS. 

THE ACT MAKES VIOLATION THE BASIS OF CRIMINAL PROSECUTION AND
AUTHORIZES INJUNCTIONS TO PREVENT THREATENED DISREGARD OF ITS
PROVISIONS.  IN THIS INSTANCE BOTH PROCEDURES WERE FOLLOWED, BUT THERE
IS BEFORE US ONLY THE VALIDITY OF AN INJUNCTION AND THE SANCTION
IMPOSED FOR REFUSAL TO OBEY IT. 

AS ALWAYS, IT IS IMPORTANT TO REACH THE PRECISE QUESTION PRESENTED. 
ONE PATH TO THIS END IS TO NOTE WHAT IS NOT INVOLVED. 

FIRST, NO POINT IS MADE OF THE CIRCUMSTANCE THAT THE APPELLANT'S
PROPOSED ACTIVITY WAS ENJOINED IN ADVANCE.  COUNSEL AT OUR BAR ASSERTED
THE CONSTITUTIONAL VICE LAY IN THE PROHIBITION OF THE STATUTE AND THAT
VICE WOULD PRECLUDE ARREST AND CONVICTION FOR VIOLATION, NO LESS THAN
INJUNCTION AGAINST THE DENOUNCED ACTIVITY. 

SECONDLY, THE APPELLANT DOES NOT CONTEND THAT HE WAS OTHER THAN A
"LABOR ORGANIZER" WITHIN THE MEANING OF THE ACT.  IN FACT HE IS AN
OFFICER OF A UNION AND NOT EMPLOYED SPECIFICALLY AS AN ORGANIZER OR
SOLICITOR OF MEMBERSHIPS.  HE MIGHT WELL HAVE QUESTIONED THE
APPLICATION OF THE LAW TO HIM, OR TO A PUBLIC ADDRESS MADE BY HIM IN
HIS OFFICIAL CAPACITY, BUT HE REFRAINED, OBVIOUSLY BECAUSE HE WISHED TO
TEST THE ACT'S VALIDITY AND SO, IN EFFECT, STIPULATED THAT ITS SWEEP
INCLUDED HIM, AND HIS CONDUCT ON THE OCCASION IN QUESTION. 

THIRDLY, THE APPELLANT DOES NOT CONTEND THAT, IN ATTEMPTING TO
IDENTIFY SOLICITORS AND PRECLUDE SOLICITATION WITHOUT IDENTIFICATION,
THE STATUTE EITHER IN TERMS, OR AS CONSTRUED AND APPLIED, REACHES OVER
INTO THE REALM OF PUBLIC ASSEMBLY, OF PUBLIC SPEAKING, OF ARGUMENT OR
PERSUASION.  AWARE THAT THE STATE PROPOSED TO INVOKE THE STATUTE
AGAINST HIM, HE MADE SURE THAT THE BARE RIGHT HE ASSERTED TO SOLICIT
WITHOUT COMPLIANCE WITH ITS REQUIREMENT SHOULD NOT BE CLOUDED BY
CONFUSION OF THAT RIGHT WITH THE OTHERS MENTIONED.  IN HIS ADDRESS,
THEREFORE, HE WAS AT PAINS TO STATE THAT HE THEN AND THERE SOLICITED
MEMBERS OF THE AUDIENCE TO JOIN A NAMED UNION; AND TO MAKE ASSURANCE OF
VIOLATION DOUBLY SURE, HE SOLICITED A MAN BY NAME AND OFFERED HIM A
MEMBERSHIP APPLICATION, WHICH THE MAN THEN AND THERE SIGNED. 
FOURTHLY, THE ACT AND THE INJUNCTION WHICH HE DISOBEYED SAY NOTHING OF
SPEECH; THEY ARE AIMED AT A TRANSACTION, - THAT OF SOLICITATION OF
MEMBERS FOR A UNION.  THIS, AND THIS ONLY, IS THE STATUTORY OBJECT
WHICH IS SAID TO RENDER IT UNCONSTITUTIONAL. 

WE ARE NOW IN A POSITION ACCURATELY TO STATE THE APPELLANT'S
CONTENTION.  HE ASSERTS THAT, UNDER THE CONSTITUTIONAL GUARANTEES,
THERE IS A SHARP DISTINCTION BETWEEN BUSINESS RIGHTS AND CIVIL RIGHTS;
THAT IN DISCUSSION OF LABOR PROBLEMS, AND EQUALLY IN SOLICITATION OF
UNION MEMBERSHIP, CIVIL RIGHTS ARE EXERCISED; THAT LABOR ORGANIZATIONS
ARE THE ONLY EFFECTIVE MEANS WHEREBY EMPLOYES MAY EXERCISE THE
GUARANTEED CIVIL RIGHTS, AND THAT, CONSEQUENTLY, ANY INTERFERENCE WITH
THE RIGHT TO SOLICIT MEMBERSHIP IN SUCH ORGANIZATIONS IS A PROHIBITED
ABRIDGMENT OF THESE RIGHTS, EVEN THOUGH THE ACT APPLIES ONLY TO PAID
ORGANIZERS. 

THE ARGUMENT THEN SEEKS TO DRAW A DISTINCTION BETWEEN THIS CASE AND
THOSE IN WHICH WE HAVE SUSTAINED REGISTRATION OF PERSONS WHO DESIRE TO
USE THE STREETS OR TO SOLICIT FUNDS; URGES THAT THE BURDEN THE ACT LAYS
ON LABOR ORGANIZATIONS IS SUBSTANTIAL AND SERIOUSLY HAMPERING AND IS
NOT INTENDED TO PREVENT ANY "CLEAR AND PRESENT DANGER" TO THE STATE. 

STRIPPED TO ITS BARE BONES, THIS ARGUMENT IS THAT LABOR ORGANIZATIONS
ARE BENEFICIAL AND LAWFUL; THAT SOLICITATION OF MEMBERS BY AND FOR THEM
IS A NECESSARY INCIDENT OF THEIR PROGRESS; THAT FREEDOM TO SOLICIT FOR
THEM IS A LIBERTY OF SPEECH PROTECTED AGAINST STATE ACTION BY THE
FOURTEENTH AMENDMENT AND THE NATIONAL LABOR RELATIONS ACT, AND HENCE
TEXAS CANNOT REQUIRE A PAID SOLICITOR TO IDENTIFY HIMSELF.  I THINK
THIS IS THE ISSUE AND THE ONLY ISSUE PRESENTED TO THE COURTS BELOW AND
DECIDED BY THEM, AND THE ONLY ONE RAISED HERE.  THE OPINION OF THE
COURT IMPORTS INTO THE CASE ELEMENTS ON WHICH COUNSEL FOR APPELLANT DID
NOT RELY; ELEMENTS WHICH IN FACT COUNSEL STROVE TO ELIMINATE IN ORDER
TO COME AT THE FUNDAMENTAL CHALLENGE TO ANY REQUIREMENT OF
IDENTIFICATION OF A LABOR ORGANIZER. 

THE POSITION TAKEN IN THE COURT'S OPINION THAT IN SOME WAY THE
STATUTE INTERFERES WITH THE RIGHT TO ADDRESS A MEETING, TO SPEAK IN
FAVOR OF A LABOR UNION, TO PERSUADE ONE'S FELLOWS TO JOIN A UNION, OR
THAT AT LEAST ITS APPLICATION IN THIS CASE DOES, OR MAY, ACCOMPLISH
THAT END IS, IN MY JUDGMENT, WITHOUT SUPPORT IN THE RECORD. 

WE MUST BEAR IN MIND THAT THE APPELLANT HIMSELF WAS PERSUADED THAT
MERELY TO MAKE THE SPEECH HE HAD COME TO TEXAS TO DELIVER WOULD NOT
VIOLATE THE ACT, AND THAT HE, THEREFORE, DETERMINED, IN ORDER TO
PRECLUDE ALL DOUBT AS TO VIOLATION, TO SOLICIT THOSE PRESENT TO JOIN
THE UNION.  AND, FOR THE SAME PURPOSE, HE FURTHER SPECIFICALLY
SOLICITED AN INDIVIDUAL. 

HE HAD NOT BEEN ENJOINED FROM MAKING A SPEECH, NOR FROM ADVOCATING
UNION AFFILIATION.  THE INJUNCTION, IN TERMS, FORBADE "SOLICITING
MEMBERSHIP IN LOCAL UNION NO. 1002  ..."  OR "MEMBERSHIPS IN ANY OTHER
LABOR UNION" WITHOUT FIRST OBTAINING A CARD.  THE INFORMATION ON WHICH
THE CITATION FOR CONTEMPT WAS BASED CHARGED (1) THAT HE SOLICITED PAT
O'SULLIVAN TO JOIN A LOCAL UNION ON SEPTEMBER 23; (2) THAT ON THE SAME
DAY HE OPENLY AND PUBLICLY SOLICITED AN AUDIENCE OF SOME THREE HUNDRED
PERSONS TO JOIN THE OIL WORKERS INTERNATIONAL UNION.  THE
UNCONTRADICTED EVIDENCE IS THAT, WITH APPLICATION BLANKS IN HIS HAND,
HE SAID:  "I EARNESTLY URGE AND SOLICIT ALL OF YOU THAT ARE NOT MEMBERS
OF YOUR LOCAL UNION TO JOIN YOUR LOCAL UNIONS.  I DO THAT IN THE
CAPACITY OF VICE-PRESIDENT OF C.I.O." 

THE TEXT OF THE SPEECH PUT IN EVIDENCE BY THE APPELLANT DOES NOT
DIFFER MATERIALLY.  IT RUNS: "AS VICE-PRESIDENT OF THE C.I.O. AND AS A
UNION MAN, I EARNESTLY ASK THOSE OF YOU WHO ARE NOT NOW MEMBERS OF THE
OIL WORKERS INTERNATIONAL UNION TO JOIN NOW.  I SOLICIT YOU TO BECOME A
MEMBER OF THE UNION OF YOUR FELLOW WORKERS  ..." 

THE JUDGMENT IN THE CONTEMPT PROCEEDING STATES ONLY THAT THE COURT
"FINDS THAT THE DEFENDANT ...  DID  ...  VIOLATE THIS COURT'S TEMPORARY
RESTRAINING ORDER HERETOFORE ISSUED INJOINING AND RESTRAINING HIM, THE
SAID R. J. THOMAS, FROM SOLICITING MEMBERS TO JOIN THE OIL WORKERS
INTERNATIONAL UNION  ..." 

IN HIS PETITION TO THE STATE SUPREME COURT FOR HABEAS CORPUS, THE
APPELLANT DID NOT SUGGEST THAT, UNDER THE GUISE OF PREVENTING HIM FROM
SOLICITING, HE WAS HELD IN CONTEMPT FOR MAKING AN ADDRESS.  THE OPINION
OF THAT COURT STATES THAT THE COMPLAINT CHARGED APPELLANT WITH ENGAGING
"IN SOLICITING MEMBERS FOR A CERTAIN LABOR UNION"; WITH VIOLATING THE
INJUNCTION ISSUED "BY SOLICITING MEMBERS FOR SAID UNION"; AND ADDS:
"RELATORS' COUNSEL IN HIS ARGUMENT BEFORE THIS COURT CONCEDED THE
EXISTENCE OF NECESSARY FACTUAL BASIS FOR THE JUDGMENT IN THE CONTEMPT
PROCEEDINGS."  THUS IT APPEARS THAT BELOW, AS HERE, THE CHALLENGE WAS
NOT AGAINST THE FORM OR CONTENT OF THE PLEADINGS OR THE ORDER; NOT THAT
TEXAS WAS TRYING TO ENJOIN APPELLANT FROM MAKING A SPEECH, BUT THAT IT
COULD NOT REGULATE SOLICITATION. 

IN CONSTRUING THE STATUTE, THE COURT BELOW SAID:  "IT APPLIES ONLY TO
THOSE ORGANIZERS WHO FOR A PECUNIARY OR FINANCIAL CONSIDERATION SOLICIT
SUCH MEMBERSHIP."  THUS IT EXCLUDED ALL QUESTIONS AS TO THE RIGHT OF
SPEECH AND ASSEMBLY AS SUCH. 

IN HIS MOTION FOR A REHEARING BELOW, THE APPELLANT ADVANCED NO
CONTENTION THAT THE JUDGMENT WAS DIRECTED AT HIS SPEECH AS SUCH. 

IN HIS STATEMENT AS TO JURISDICTION FILED IN THIS COURT HE SAID:
"APPELLANT DELIVERED HIS SPEECH TO THE MEETING ATTENDED LARGELY BY
WORKERS OF THE HUMBLE OIL COMPANY AND SOLICITED THE AUDIENCE IN GENERAL
AND ONE PAT O'SULLIVAN IN PARTICULAR TO JOIN THE OIL WORKERS
INTERNATIONAL UNION." 

IN HIS STATEMENT OF POINTS TO BE RELIED ON IN THIS COURT, HE STATED
HE WOULD URGE THAT THE ACT IS UNCONSTITUTIONAL BECAUSE IT "IMPOSES A
PREVIOUS GENERAL RESTRAINT UPON THE EXERCISE OF APPELLANT'S RIGHT OF
FREE SPEECH BY PROHIBITING APPELLANT FROM SOLICITING WORKERS TO JOIN A
UNION," WITHOUT OBTAINING AN ORGANIZER'S CARD.  AND AGAIN THAT IT
VIOLATED OTHER CONSTITUTIONAL PROVISIONS "IN REQUIRING APPELLANT TO
OBTAIN A LICENSE (ORGANIZER'S CARD) BEFORE SOLICITING WORKERS TO JOIN A
UNION." 

NOWHERE IN THE DOCUMENT IS THERE ANY SUGGESTION THAT THE STATUTE IS
INTENDED, OR HAS BEEN APPLIED, TO RESTRAIN OR RESTRICT THE FREEDOM TO
SPEAK, SAVE ONLY AS SPEECH IS AN INTEGRAL PART OF THE TRANSACTION OF
PAID SOLICITATION OF MEN TO JOIN A UNION. 

SINCE ITS REQUIREMENTS ARE NOT OBVIOUSLY BURDENSOME, WE CANNOT VOID
THE STATUTE AS AN UNNECESSARY OR EXCESSIVE EXERCISE OF THE STATE'S
POLICE POWER ON ANY A PRIORI REASONING.  THE STATE SUPREME COURT HAS
FOUND THAT CONDITIONS EXIST IN TEXAS WHICH JUSTIFY AND REQUIRE SUCH
IDENTIFICATION OF PAID ORGANIZERS AS THE LAW PRESCRIBES.  THERE IS NOT
A WORD OF EVIDENCE IN THE RECORD TO CONTRADICT THESE CONCLUSIONS.  IN
THE ABSENCE OF A SHOWING AGAINST THE NEED FOR THE STATUTE THIS COURT
OUGHT NOT INCONTINENTLY TO REJECT THE STATE'S CONSIDERED VIEWS OF
POLICY. 

THE JUDGMENT OF THE COURT BELOW THAT THE POWER EXISTS REASONABLY TO
REGULATE SOLICITATION, AND THAT THE EXERCISE OF THE POWER BY THE ACT IN
QUESTION IS NOT UNNECESSARILY BURDENSOME, IS NOT TO BE REJECTED ON
ABSTRACT GROUNDS.  NO FEE IS CHARGED.  THE CARD MAY BE OBTAINED BY
MAIL.  TO COMPLY WITH THE LAW THE APPELLANT NEED ONLY HAVE FURNISHED
HIS NAME AND AFFILIATION, AND HIS CREDENTIALS.  THE STATUTE NOWISE
REGULATES, CURTAILS, OR BANS HIS ACTIVITIES. 

WE ARE ASKED THEN, ON THIS RECORD, TO HOLD, WITHOUT EVIDENCE TO
SUPPORT SUCH A CONCLUSION, AND AS A MATTER OF JUDICIAL NOTICE, THAT
TEXAS HAS NO BONA FIDE INTEREST TO WARRANT HER LAW MAKERS IN REQUIRING
THAT ONE WHO ENGAGES, FOR PAY, IN THE BUSINESS OF SOLICITING PERSONS TO
JOIN UNIONS SHALL IDENTIFY HIMSELF AS SUCH.  THAT IS ALL THE LAW
REQUIRES. 

WE SHOULD FACE A VERY DIFFERENT QUESTION IF THE STATUTE ATTEMPTED TO
DEFINE THE NECESSARY QUALIFICATIONS OF AN ORGANIZER; PURPORTED TO
REGULATE WHAT ORGANIZERS MIGHT SAY; LIMITED THEIR MOVEMENTS OR
ACTIVITIES; ESSAYED TO REGULATE TIME, PLACE OR PURPOSE OF MEETINGS; OR
RESTRICTED SPEAKERS IN THE EXPRESSION OF VIEWS.  BUT IT DOES NONE OF
THESE THINGS. 

IT IS SUGGESTED THAT THE ACT IS TO BE DISTINGUISHED FROM LEGISLATION
REGULATING THE USE OF THE STREETS OR THE SOLICITATION OF MONEY.  AS
RESPECTS THE FORMER, I THINK OUR DECISION IN COX V. NEW HAMPSHIRE, 312
U.S. 569, AND THAT OF THE CIRCUIT COURT OF APPEALS IN CITY OF
MANCHESTER V. LEIBY, 117 F.2D 661, ARE INDISTINGUISHABLE IN PRINCIPLE,
AND THE COURT BELOW PROPERLY SO HELD.  IF ONE DISSEMINATING NEWS FOR
HIS OWN PROFIT MAY RIGHTFULLY BE REQUIRED TO IDENTIFY HIMSELF, SO MAY
ONE WHO, FOR PROFIT, SOLICITS PERSONS TO JOIN AN ORGANIZATION. 

AS RESPECTS THE SECOND, I SEE NO REASON TO LIMIT WHAT WAS SAID IN
CANTWELL V. CONNECTICUT, 310 U.S. 296, 305, TO SOLICITATION OF MONEY. 
THE SOLICITATION AT WHICH THE TEXAS ACT IS AIMED MAY OR MAY NOT INVOLVE
THE PAYMENT OF INITIATION FEES OR DUES TO THE SOLICITOR.  BUT, IN ANY
CASE, IT INVOLVES THE ASSUMPTION OF BUSINESS AND FINANCIAL LIABILITY BY
HIM WHO IS PERSUADED TO JOIN A UNION.  THE TRANSACTION IS IN ESSENCE A
BUSINESS ONE.  LABOR UNIONS ARE BUSINESS ASSOCIATIONS; THEIR OBJECT IS
GENERALLY BUSINESS DEALINGS AND RELATIONSHIPS AS IS MANIFEST FROM THE
FINANCIAL STATEMENTS OF SOME OF THE NATIONAL UNIONS.  MEN ARE PERSUADED
TO JOIN THEM FOR BUSINESS REASONS, AS EMPLOYERS ARE PERSUADED TO JOIN
TRADE ASSOCIATIONS FOR LIKE REASONS.  OTHER PAID ORGANIZERS, WHETHER
FOR BUSINESS OR FOR CHARITY, COULD BE REQUIRED TO IDENTIFY THEMSELVES. 
THERE IS NO REASON WHY LABOR ORGANIZERS SHOULD NOT DO LIKEWISE.  I
THINK THAT IF ANYONE PURSUES SOLICITATION AS A BUSINESS FOR PROFIT, OF
MEMBERS FOR ANY ORGANIZATION, RELIGIOUS, SECULAR OR BUSINESS, HIS
CALLING DOES NOT BAR THE STATE FROM REQUIRING HIM TO IDENTIFY HIMSELF
AS WHAT HE IS,  - A PAID SOLICITOR. 

WE MAY DEEM THE STATUTORY PROVISION UNDER REVIEW UNNECESSARY OR
UNWISE, BUT IT IS NOT OUR FUNCTION AS JUDGES TO READ OUR VIEWS OF
POLICY INTO A CONSTITUTIONAL GUARANTEE, IN ORDER TO OVERTHROW A STATE
POLICY WE DO NOT PERSONALLY APPROVE, BY DENOMINATING THAT POLICY A
VIOLATION OF THE LIBERTY OF SPEECH.  THE JUDGMENT SHOULD BE AFFIRMED. 

FN1  STROMBERG V. CALIFORNIA, 283 U.S. 359; NEAR V. MINNESOTA, 283
U.S. 697; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; DE JONGE V.
OREGON, 299 U.S. 353; HERNDON V. LOWRY, 301 U.S. 242; LOVELL V.
GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O., 307 U.S. 496; SCHNEIDER V.
IRVINGTON, 308 U.S. 147; THORNHILL V. ALABAMA, 310 U.S. 88; CARLSON V.
CALIFORNIA, 310 U.S. 106; CANTWELL V. CONNECTICUT, 310 U.S. 296;
AMERICAN FEDERATION OF LABOR V. SWING, 312 U.S. 321; BRIDGES V.
CALIFORNIA, 314 U.S. 252; BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769;
MARTIN V. STRUTHERS, 319 U.S. 141; TAYLOR V. MISSISSIPPI, 319 U.S. 583;
CAFETERIA EMPLOYEES UNION V. ANGELOS, 320 U.S. 293.  COMPARE MURDOCK V.
PENNSYLVANIA, 319 U.S. 105; DOUGLAS V. JEANNETTE, 319 U.S. 157; BOARD
OF EDUCATION V. BARNETTE, 319 U.S. 624; FOLLETE V. MCCORMICK, 312 U.S.
573. 

FN2  A SECTION OF THE ACT FORBIDS AN ALIEN OR A CONVICTED FELON WHOSE
CIVIL RIGHTS HAVE NOT BEEN RESTORED TO ACT AS A LABOR ORGANIZER, BUT
THESE PROVISIONS WERE NOT HERE INVOKED OR APPLIED AND NOTHING IN THIS
CASE TURNS ON THEM.  THERE IS NO OCCASION TO DISCUSS THEM UNTIL THEY
ARE DRAWN IN QUESTION.  AND IN ADDITION, SEC. 15 OF THE ACT CONTAINS A
SWEEPING SEVERABILITY CLAUSE. 

THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE FRANKFURTER JOIN
IN THIS OPINION. 
..END :



INDUSTRIAL ASSN. V. COMMISSIONER, 323 U.S. 310 


NO. 118.  ARGUED DECEMBER 13, 1944.  - DECIDED JANUARY 2, 1945.  - 141
F.2D 636, REVERSED. 


1.  IN SEC. 1141 OF THE INTERNAL REVENUE CODE, RELATING TO REVIEW OF
DECISIONS OF THE TAX COURT, THE TERMS "JURISDICTION" AND "VENUE" HAVE
THEIR USUALLY ACCEPTED MEANING.  P. 314. 

2.  BY SEC. 1141(A) ALL OF THE CIRCUIT COURTS OF APPEALS AND THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA ARE GIVEN
JURISDICTION TO REVIEW DECISIONS OF THE TAX COURT, THAT IS, POWER TO
ACT JUDICIALLY UPON A PETITION FOR REVIEW.  P. 314. 

3.  BY SEC. 1141(B)(1) ONE OF THE COURTS OF APPEALS IS DESIGNATED AS
THE COURT OF PROPER VENUE, THAT IS, THE PLACE WHERE THE PETITION WILL
BE HEARD.  P. 314. 

4.  THE OBJECTION THAT THE PETITION IS FILED IN THE WRONG CIRCUIT,
BEING ONE TO VENUE, MAY BE WAIVED BY THE COVERNMENT; AND THIS IT DID
HERE BY STIPULATING THAT THE CASE BE HEARD IN THE COURT OF APPEALS
DESIGNATED BY THE PARTIES.  P. 314. 

(A)  THE STIPULATION IS NOT REQUIRED TO BE FILED WITHIN THREE MONTHS
OF THE DECISION OF THE TAX COURT.  P. 314. 

(B)  NASH-BREYER MOTOR CO. V. BURNET, 283 U.S. 483, DISTINGUISHED. 
P. 315. 

5.  PETITIONER FILED A PETITION FOR REVIEW IN THE COURT BELOW WITHIN
THE THREE MONTHS' PERIOD ALLOWED FOR THAT PURPOSE BY SEC. 1142.  THAT
COURT WAS NOT THE COURT OF PROPER VENUE UNDER SEC. 1141(B)(1).  MORE
THAN THREE MONTHS AFTER THE DECISION OF THE TAX COURT, THE PARTIES MADE
AND FILED A STIPULATION TO HAVE THE CASE HEARD IN THE COURT BELOW. 
HELD, THE COURT BELOW ON FILING OF THE PETITION HAD JURISDICTION, AND
ON THE FILING OF THE STIPULATION WAS THE COURT OF PROPER VENUE. 
DISMISSAL OF THE PETITION FOR WANT OF JURISDICTION WAS THEREFORE
IMPROPER.  P. 315. 

INDUSTRIAL ADDITION ASSOCIATION V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 690, TO REVIEW A JUDGMENT DISMISSING FOR WANT OF
JURISDICTION A PETITION FOR REVIEW OF A DECISION OF THE TAX COURT, 1
T.C. 378. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE PETITIONER, DEEMING ITSELF EXEMPT FROM INCOME AND EXCESS
PROFITS TAXES, FAILED TO FILE ANY TAX RETURNS FOR THE YEARS 1932 TO
1936 INCLUSIVE.  THE COMMISSIONER ASSESSED PETITIONER FOR THE TAXES FOR
THOSE YEARS, WITH PENALTIES, AND THE TAX COURT HAS SUSTAINED THE
ASSESSMENT AS TO THE INCOME TAXES AND ATTENDANT PENALTIES.  PETITIONER,
WITHIN THE THREE MONTHS ALLOWED FOR THAT PURPOSE BY SEC. 1142 OF THE
INTERNAL REVENUE CODE, SOUGHT REVIEW OF THE TAX COURT'S DECISION BY A
PETITION FOR REVIEW FILED WITH THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

BY SEC. 1141(A) OF THE INTERNAL REVENUE CODE, ENTITLED
"JURISDICTION," THE CIRCUIT COURTS OF APPEALS AND THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA ARE GIVEN "EXCLUSIVE JURISDICTION TO
REVIEW THE DECISIONS" OF THE TAX COURT.  SUBSECTION (B)(1), ENTITLED
"VENUE," PROVIDES THAT "SUCH DECISIONS MAY BE REVIEWED BY THE CIRCUIT
COURT OF APPEALS FOR THE CIRCUIT IN WHICH IS LOCATED THE COLLECTOR'S
OFFICE TO WHICH WAS MADE THE RETURN OF THE TAX IN RESPECT TO WHICH THE
LIABILITY ARISES OR, IF NO RETURN WAS MADE, THEN BY THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA."  SINCE PETITIONER FILED
NO RETURN, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA WAS THE
COURT OF PROPER VENUE UNDER THIS SUBSECTION.  IF PETITIONER HAD MADE A
RETURN, IT WOULD HAVE BEEN REQUIRED TO FILE IT WITH A COLLECTOR WHOSE
OFFICE WAS WITHIN THE SIXTH CIRCUIT, THAT OF THE COURT BELOW; IN THAT
EVENT, THAT COURT WOULD HAVE BEEN THE COURT OF PROPER VENUE.  THE CODE
PROVIDES FURTHER, IN SUBSECTION (B)(2):  "NOTWITHSTANDING THE
PROVISIONS OF PARAGRAPH 1, SUCH DECISIONS MAY BE REVIEWED BY ANY
CIRCUIT COURT OF APPEALS  ...  WHICH MAY BE DESIGNATED BY THE
COMMISSIONER AND THE TAXPAYER BY STIPULATION IN WRITING." 

THE COMMISSIONER SUGGESTED TO PETITIONER THAT AS IT HAD FILED NO
RETURNS FOR THE YEARS IN QUESTION AND NO WRITTEN STIPULATION HAD BEEN
ENTERED INTO AS PERMITTED BY SUBSECTION (B)(2), THE CIRCUIT COURT OF
APPEALS FOR THE SIXTH CIRCUIT WAS WITHOUT "JURISDICTION."  IN RESPONSE
TO THIS SUGGESTION, PETITIONER AND THE COMMISSIONER, AFTER THE
EXPIRATION OF THE THREE MONTHS PERIOD IN WHICH A PETITION FOR REVIEW
COULD BE FILED, ENTERED INTO SUCH A WRITTEN STIPULATION, DESIGNATING
THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AS THE COURT TO REVIEW THE
DECISION OF THE TAX COURT.  THE STIPULATION RESERVED TO THE
COMMISSIONER THE RIGHT TO CHALLENGE ITS TIMELINESS AND LEGAL EFFECT. 

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT, ON THE COMMISSIONER'S
MOTION, DISMISSED THE PETITION FOR REVIEW FOR WANT OF JURISDICTION. 
141 F.2D 636.  WE GRANTED CERTIORARI TO RESOLVE AN ASSERTED CONFLICT OF
THE DECISION BELOW WITH THAT OF THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT IN WEGENER V. COMMISSIONER, 119 F.2D 49.  THE QUESTION
PRESENTED IS WHETHER THE COURT BELOW HAD JURISDICTION OF THE PETITION
FOR REVIEW OF THE DECISION OF THE TAX COURT, NOTWITHSTANDING
PETITIONER'S FAILURE TO FILE THE STIPULATION DURING THE THREE MONTHS
PERIOD, WITHIN WHICH REVIEW OF THE TAX COURT'S DECISION COULD BE
SOUGHT. 

THE USE IN JUXTAPOSITION, IN THE STATUTE, OF THE TERMS "JURISDICTION"
AND "VENUE" MARKS A SIGNIFICANT DISTINCTION.  ON THE ONE HAND, THE
STATUTE CONFERS POWER ON THE CIRCUIT COURTS OF APPEALS GENERALLY, TO
ACT JUDICIALLY ON PETITIONS FOR REVIEW PRESENTED TO THEM - WHICH IS
"JURISDICTION."  ON THE OTHER, SUCH OF THOSE COURTS AS ARE SPECIFIED BY
THE STATUTE, OR THE STIPULATION WHICH IT AUTHORIZES, ARE DESIGNATED AS
THE PLACE WHERE, FOR CONVENIENCE OF THE COURTS OR PARTIES OR BOTH, THE
PETITION WILL BE HEARD - WHICH IS "VENUE."  FN1  WANT OF JURISDICTION,
UNLIKE WANT OF VENUE, MAY NOT BE CURED BY CONSENT OF THE PARTIES; BUT
WHEN THE COURT HAS JURISDICTION, IT HAS POWER TO DECIDE THE CASE
BROUGHT BEFORE IT, EVEN THOUGH THE COURT HAVING VENUE IS ONE SITTING IN
ANOTHER CIRCUIT.  GENERAL INVESTMENT CO. V. LAKE SHORE & M.S.R. CO.,
260 U.S. 261, 272-273; BURNRITE COAL CO. V. RIGGS, 274 U.S. 208, 211
212; GENERAL ELECTRIC CO. V. MARVEL CO., 287 U.S. 430, 434-435; NEIRBO
CO. V. BETHLEHEM CORP., 308 U.S. 165, 167-168; FREEMAN V. BEE MACHINE
CO., 319 U.S. 448, 453.  THE RIGHT TO HAVE A CAUSE HEARD IN THE COURT
OF THE PROPER VENUE MAY BE LOST UNLESS SEASONABLY ASSERTED; AND IN THAT
EVENT, THE COURT OF TRIAL HAVING JURISDICTION BUT NOT THE PROPER VENUE
MAY RENDER A JUDGMENT BINDING ON THE PARTIES.  GENERAL INVESTMENT CO.
V. LAKE SHORE & M.S.R. CO., SUPRA, 272; COMMERCIAL CASUALTY CO. V.
CONSOLIDATED STONE CO., 278 U.S. 177, 179; FREEMAN V. BEE MACHINE CO.,
SUPRA, 453.  THE GOVERNMENT MAY WAIVE OBJECTIONS TO VENUE, JUST AS ANY
OTHER LITIGANT MAY, UNITED STATES V. HVOSLEF, 237 U.S. 1, 12; THAMES &
MERSEY INS. CO. V. UNITED STATES, 237 U.S. 19, 24-25; PEORIA & P.U.R.
CO. V. UNITED STATES, 263 U.S. 528, 535-536, AND HERE SUCH WAIVER, BY
STIPULATION, IS CONTEMPLATED BY SEC. 1141(B)(2). 

WE HAVE NO REASON TO SUPPOSE THAT THE TERMS "JURISDICTION" AND
"VENUE" WERE USED IN THE STATUTE IN OTHER THAN THEIR USUALLY ACCEPTED
MEANING, AND NO CONVINCING REASON HAS BEEN ADVANCED WHY THAT MEANING
SHOULD NOT BE ACCEPTED HERE.  UNLESS THESE PLAIN TERMS ARE TO BE
DISREGARDED, ALL THE CIRCUIT COURTS OF APPEALS ARE GIVEN JURISDICTION
TO REVIEW DECISIONS OF THE TAX COURT UPON A PETITION FOR REVIEW, THAT
IS, POWER TO ACT JUDICIALLY UPON THE PETITION.  PEORIA & P.U.R. CO. V.
UNITED STATES, SUPRA, 535-536.  CONSEQUENTLY WHEN IN THIS CASE
PETITIONER FILED ITS PETITION WITH THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT, THAT COURT DID NOT LACK POWER TO PROCEED WITH THE CAUSE,
ALTHOUGH THE COURT OF PROPER VENUE WAS THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA, AS PRESCRIBED BY SEC. 1141(B)(1).  THE PARTIES
WERE FREE TO WAIVE THIS DEFECT OF VENUE, BY FILING THE STIPULATION IN
COMPLIANCE WITH SUBSECTION (B)(2), DESIGNATING THE COURT BELOW AS THE
ONE TO ACT UPON THE PETITION, WHICH WAS ALREADY BEFORE IT AND OF WHICH
IT THEN HAD JURISDICTION. 

THE GOVERNMENT URGES THAT THE STIPULATION HERE DID NOT COMPLY WITH
SEC. 1141(B)(2), SINCE IT WAS NOT FILED WITHIN THREE MONTHS OF THE
DECISION OF THE TAX COURT.  BUT SEC. 1141(B)(2) DOES NOT BY ITS TERMS
PLACE ANY TIME LIMITATION UPON THE FILING OF THE STIPULATION.  THE
GOVERNMENT RELIES ON THE THREE MONTHS LIMITATION IN SEC. 1142, WHICH IS
IN TERMS APPLICABLE ONLY TO THE FILING OF THE PETITION FOR REVIEW.  THE
PETITION HERE WAS FILED WITHIN THREE MONTHS IN A COURT HAVING
JURISDICTION, AND WE SEE NO REASON TO IMPORT INTO THE STIPULATION
PROVISION, SEC. 1141(B)(2), A TIME LIMITATION WHICH IT DOES NOT
CONTAIN. 

IT IS TRUE, AS THE GOVERNMENT ARGUES, THAT DISMISSAL FOR WANT OF THE
PROPER VENUE, OF A PETITION FOR REVIEW PENDING IN A COURT OF APPEALS,
CONTROLS THE JURISDICTION OF THE COURT.  BUT IN SUCH A CASE
JURISDICTION IS CONTROLLED ONLY BY TERMINATING IT.  HERE THE CASE WAS
NOT DISMISSED BEFORE WANT OF VENUE WAS SUPPLIED BY STIPULATION IN THE
MANNER AUTHORIZED BY THE STATUTE.  THIS IMPOSED ON THE COURT THE DUTY
TO EXERCISE ITS JURISDICTION IN DECIDING THE CASE. 

THE GOVERNMENT RELIES, AS DID THE COURT BELOW, ON OUR DECISION IN
NASH-BREYER MOTOR CO. V. BURNET, 283 U.S. 483.  WHEN THAT CASE AROSE,
THE PROVISION IN THE APPLICABLE REVENUE ACT FOR CHOICE OF VENUE BY
STIPULATION OF THE PARTIES, DID NOT PERMIT THEM TO STIPULATE FOR REVIEW
IN ANY CIRCUIT, BUT LIMITED THEIR CHOICE TO TWO SPECIFIED CIRCUITS. 
THE PARTIES IN THAT CASE STIPULATED FOR REVIEW OF A DECISION OF THE
BOARD OF TAX APPEALS IN A CIRCUIT NOT AUTHORIZED BY THE STATUTE, AND
THUS DID NOT CONFORM TO THE STATUTORY VENUE REQUIREMENT.  WE SUSTAINED
THE ACTION OF THE COURT OF APPEALS IN DISMISSING THE PETITION FOR
REVIEW ON THE GROUND THAT THE COURT WAS NOT BOUND TO EXERCISE ITS
JURISDICTION WHERE THE PROPER VENUE WAS IN ANOTHER COURT, SAYING, P.
487: "THE RESTRICTION ON THE POWER OF THE PARTIES TO STIPULATE AS TO
VENUE WOULD BE MEANINGLESS IF THEY COULD WAIVE IT WITHOUT THE CONSENT
OF THE COURT."  IN THIS CASE THE STIPULATION CONFORMS TO THE STATUTE,
AND IS WITHOUT THE INFIRMITY FOUND TO BE FATAL IN THE NASH-BREYER
CASE. 

HERE THE COURT ACQUIRED JURISDICTION OF THE CAUSE UNDER THE STATUTE
BY THE TIMELY FILING OF THE PETITION FOR REVIEW, AND THE PARTIES WERE
AUTHORIZED BY SEC. 1141(B)(2) TO STIPULATE THAT THE REVIEW SHOULD BE
HAD IN THAT COURT.  ON FILING THE STIPULATION THE CAUSE WAS THEN
PENDING IN THE COURT HAVING VENUE, AS WELL AS JURISDICTION, AND THE
CASE WAS IMPROPERLY DISMISSED.  REVERSED. 

FN1  SEE PEORIA & P.U.R. CO. V. UNITED STATES, 263 U.S. 528, 535-536,
WHERE THIS COURT EXPLAINED THE SAME DISTINCTION MADE IN THE URGENT
DEFICIENCIES ACT, 38 STAT. 219, 28 U.S.C. SECS. 41(28), 43. 
..END :















COFFMAN V. BREEZE CORPORATION, 323 U.S. 316 


NO. 71.  ARGUED DECEMBER 7, 1944.  - DECIDED JANUARY 2, 1945.  - 55
F.SUPP.  501, AFFIRMED. 


1.  A BILL OF COMPLAINT BY A PATENT OWNER AGAINST LICENSEES, SEEKING
AN ADJUDICATION OF UNCONSTITUTIONALITY OF THE ROYALTY ADJUSTMENT ACT
AND AN INJUNCTION AGAINST THE LICENSEES FROM COMPLYING WITH THE ACT AND
ORDERS ISSUED PURSUANT THERETO, BUT SEEKING NO RECOVERY OF ROYALTIES
ALLEGED TO BE DUE FROM THE LICENSEES, HELD TO STATE NO CAUSE OF ACTION
IN EQUITY AND TO PRESENT NO CASE OR CONTROVERSY WITHIN THE JUDICIAL
POWER OF THE UNITED STATES AS DEFINED BY SEC. 2 OF ARTICLE III OF THE
CONSTITUTION.  P. 321. 

2.  IN THE CIRCUMSTANCES DISCLOSED BY THE RECORD AND FOR PURPOSES OF
THE PRESENT SUIT, THE CONSTITUTIONALITY OF THE ACT IS WITHOUT LEGAL
SIGNIFICANCE AND CAN INVOLVE NO JUSTICIABLE QUESTION UNLESS AND UNTIL
THE COMPLAINANT SEEKS RECOVERY OF THE ROYALTIES, AND THEN ONLY IF THE
ACT IS RELIED ON AS A DEFENSE.  P. 324. 

3.  THE DECLARATORY JUDGMENT PROCEDURE IS AVAILABLE IN THE FEDERAL
COURTS ONLY WHEN AN ACTUAL CASE OR CONTROVERSY IS INVOLVED, AND MAY NOT
BE USED TO SECURE MERELY AN ADVISORY OPINION.  P. 324. 

4.  THE COURT WILL NOT PASS UPON THE CONSTITUTIONALITY OF LEGISLATION
IN A SUIT WHICH IS NOT ADVERSARY, OR UPON THE COMPLAINT OF ONE WHO
FAILS TO SHOW THAT HE IS INJURED BY ITS OPERATION, OR UNTIL IT IS
NECESSARY TO DO SO TO PRESERVE THE RIGHTS OF THE PARTIES.  P. 324. 

COFFMAN V. BREEZE CORPORATIONS, INC. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEW JERSEY. 

APPEAL FROM THE DISMISSAL BY A DISTRICT COURT OF THREE JUDGES OF THE
COMPLAINT IN A SUIT BY A PATENT OWNER AGAINST HIS LICENSEES,
CHALLENGING THE CONSTITUTIONALITY OF THE ROYALTY ADJUSTMENT ACT.  THE
UNITED STATES HAD BEEN PERMITTED TO INTERVENE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THIS SUIT, BROUGHT IN THE DISTRICT COURT BY
APPELLANT, A PATENT OWNER, TO ENJOIN HIS LICENSEES FROM PAYING ACCRUED
ROYALTIES TO THE GOVERNMENT UNDER THE ROYALTY ADJUSTMENT ACT OF OCTOBER
31, 1942, 56 STAT. 1013, 35 U.S.C. SUPP. III, SECS. 89-96, AND
ATTACKING THE CONSTITUTIONALITY OF THE ACT, WAS RIGHTLY DISMISSED FOR
WANT OF EQUITY JURISDICTION AND FOR WANT OF A JUSTICIABLE CASE OR
CONTROVERSY. 

APPELLANT BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT FOR NEW
JERSEY, JOINING AS DEFENDANTS FEDERAL LABORATORIES, INC., A DELAWARE
CORPORATION, AND APPELLEE BREEZE CORPORATIONS, INC., A NEW JERSEY
CORPORATION.  FEDERAL WAS NOT SERVED WITH PROCESS AND DID NOT APPEAR,
AND THE CAUSE HAS PROCEEDED AGAINST APPELLEE BREEZE ALONE.  THE CASE
BEING ONE IN WHICH THE CONSTITUTIONALITY OF AN ACT OF CONGRESS IS
CHALLENGED AND IN WHICH A PRELIMINARY AND FINAL INJUNCTION IS ASKED
RESTRAINING "THE ENFORCEMENT, OPERATION, OR EXECUTION OF, OR SETTING
ASIDE, IN WHOLE OR IN PART" OF AN ACT OF CONGRESS ON THE GROUND OF ITS
UNCONSTITUTIONALITY, A COURT OF THREE JUDGES WAS CONVENED TO HEAR THE
CAUSE PURSUANT TO SEC. 3 OF THE ACT OF AUGUST 24, 1937, 50 STAT. 752,
28 U.S.C. SEC. 380(A).  FN1 

APPELLEE BREEZE ANSWERED.  UPON APPROPRIATE PROCEEDINGS HAD UNDER 50
STAT. 751, 28 U.S.C. SEC. 401, THE UNITED STATES WAS PERMITTED TO
INTERVENE AS A PARTY.  THEREUPON THE DISTRICT COURT GRANTED THE
GOVERNMENT'S MOTION TO DISMISS THE SUIT FOR WANT OF EQUITY JURISDICTION
AND OF A JUSTICIABLE CASE OR CONTROVERSY.  55 F.SUPP.  501.  THE CASE
COMES HERE ON APPEAL UNDER SEC. 3 OF THE ACT OF AUGUST 24, 1937, C.
754, 50 STAT. 752, 28 U.S.C. SEC. 380(A), AUTHORIZING DIRECT APPEALS TO
THIS COURT IN A CASE WHERE A DISTRICT COURT OF THREE JUDGES CONVENED
PURSUANT TO THE SECTION HAS ENTERED "JUDGMENT GRANTING OR DENYING,
AFTER NOTICE AND HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN
SUCH CASE." 

THE FACTS APPEAR FROM THE PLEADINGS AND BY STIPULATION, AND ARE
ADMITTED FOR THE PURPOSES OF THE MOTION.  APPELLANT, THE OWNER OF A
UNITED STATES PATENT COVERING AN IMPROVEMENT UPON A DEVICE FOR USE IN
STARTING A COMBUSTION MOTOR, AND SHELLS FOR USE WITH THE DEVICE,
ENTERED INTO AN AGREEMENT LICENSING FEDERAL TO MANUFACTURE AND SELL THE
PATENTED DEVICE AT A ROYALTY OF 6% OF THE LICENSEE'S SELLING PRICE OF
THE DEVICE AND ITS PARTS.  AT SOME TIME BEFORE JULY 1937, APPELLEE
BREEZE ACQUIRED ALL OF FEDERAL'S OUTSTANDING SHARES OF CAPITAL STOCK
AND HAS SINCE CONTROLLED ITS BUSINESS AND POLICIES.  IN 1937 IT ENTERED
INTO A CONTRACT, SINCE RENEWED AND CONTINUED WITH FEDERAL, WHEREBY THE
LATTER ENGAGED BREEZE AS ITS EXCLUSIVE "SALES AGENT AND DISTRIBUTOR" TO
MANUFACTURE AND SELL THE PATENTED DEVICE.  BREEZE BEGAN THE MANUFACTURE
AND SALE OF THE PATENTED DEVICE, AND FROM THE ALLEGATIONS OF THE BILL
OF COMPLAINT IT APPEARS, INFERENTIALLY AT LEAST, THAT IT HAS BEEN
ENGAGED TO SOME EXTENT, NOT DISCLOSED, IN SUPPLYING THE WAR AND NAVY
DEPARTMENTS WITH THE PATENTED DEVICE UNDER GOVERNMENT CONTRACTS. 

THE ROYALTY ADJUSTMENT ACT PROVIDES THAT WHENEVER A PATENTED DEVICE
IS "MANUFACTURED, USED, (OR) SOLD  ...  FOR THE UNITED STATES" UNDER A
LICENSE STIPULATING FOR PAYMENT OF ROYALTIES "BELIEVED TO BE
UNREASONABLE OR EXCESSIVE" BY THE HEAD OF THE GOVERNMENT AGENCY
CONCERNED, HE "SHALL GIVE WRITTEN NOTICE OF SUCH FACT TO THE LICENSOR
AND TO THE LICENSEE."  IT PROVIDES THAT WITHIN A REASONABLE TIME
THEREAFTER THE HEAD OF THE AGENCY "SHALL BY ORDER FIX AND SPECIFY SUCH
RATES OR AMOUNTS OF ROYALTIES, IF ANY, AS HE SHALL DETERMINE ARE FAIR
AND JUST, TAKING INTO ACCOUNT THE CONDITIONS OF WARTIME PRODUCTION." 
THE ACT DIRECTS THE LICENSEE, AFTER THE EFFECTIVE DATE OF THE NOTICE,
NOT TO "PAY TO THE LICENSOR, NOR CHARGE DIRECTLY OR INDIRECTLY TO THE
UNITED STATES A ROYALTY, IF ANY, IN EXCESS OF THAT SPECIFIED IN SAID
ORDER ON ACCOUNT OF SUCH MANUFACTURE, USE, SALE OR OTHER DISPOSITION." 

THE ACT DEPRIVES THE LICENSOR OF "ANY REMEDY  ...  AGAINST THE
LICENSEE FOR THE PAYMENT OF ANY ADDITIONAL ROYALTY REMAINING UNPAID." 
IT PROVIDES THAT HIS "SOLE AND EXCLUSIVE REMEDY, EXCEPT AS TO THE
RECOVERY OF ROYALTIES FIXED IN SAID ORDER" IS A SUIT AGAINST THE UNITED
STATES "TO RECOVER SUCH SUM, IF ANY, AS, WHEN ADDED TO THE ROYALTIES
FIXED AND SPECIFIED IN SUCH ORDER, SHALL CONSTITUTE FAIR AND JUST
COMPENSATION TO THE LICENSOR FOR THE MANUFACTURE, USE, SALE, OR OTHER
DISPOSITION OF THE LICENSED INVENTION FOR THE UNITED STATES, TAKING
INTO ACCOUNT THE CONDITIONS OF WARTIME PRODUCTION."  BY SEC. 7 THE ACT
IS MADE APPLICABLE "TO ALL ROYALTIES DIRECTLY OR INDIRECTLY CHARGED OR
CHARGEABLE TO THE UNITED STATES" WHICH "HAVE NOT BEEN PAID TO THE
LICENSOR PRIOR TO THE EFFECTIVE DATE OF THE NOTICE," AS WELL AS TO
ROYALTIES ACCRUING UPON ALL ARTICLES DELIVERED AFTER THE EFFECTIVE
DATE.  BY SEC. 4 ANY REDUCTION IN ROYALTIES AUTHORIZED BY THE ACT IS TO
"INURE TO THE BENEFIT OF THE GOVERNMENT BY WAY OF A CORRESPONDING
REDUCTION IN THE CONTRACT PRICE TO BE PAID  ...  OR BY WAY OF REFUND IF
ALREADY PAID TO THE LICENSEE." 

PURSUANT TO SEC. 1 OF THE ACT THE NAVY DEPARTMENT ON FEBRUARY 24,
1943, GAVE NOTICE TO APPELLANT, APPELLEE BREEZE AND FEDERAL THAT THE
ROYALTIES PROVIDED FOR BY THE LICENSE CONTRACT "NOW BEING PAID DIRECTLY
OR INDIRECTLY" UNDER CONTRACTS IN WHICH FEDERAL OR BREEZE "IS EITHER A
PRIME CONTRACTOR OR A SUBCONTRACTOR ARE BELIEVED TO BE UNREASONABLE OR
EXCESSIVE."  THE NOTICE DIRECTED THAT, UNTIL A ROYALTY ADJUSTMENT ORDER
SHOULD BE ISSUED UNDER THE ACT, "NO ROYALTIES SHOULD BE PAID ON ACCOUNT
OF THE MANUFACTURE, USE, (OR) SALE  ...  FOR THE UNITED STATES" OF THE
PATENTED DEVICE.  A SIMILAR NOTICE WAS GIVEN BY THE WAR DEPARTMENT TO
THE SAME PARTIES ON MARCH 3, 1943.  IN DECEMBER, 1943, THE WAR AND NAVY
DEPARTMENTS ISSUED ROYALTY ADJUSTMENT ORDERS UNDER SEC. 1 OF THE ACT,
PURPORTING TO REDUCE TO SPECIFIED AMOUNTS, DECLARED TO BE "FAIR AND
JUST," THE ROYALTIES ACCRUING ON THE MANUFACTURE AND SALE OF THE
PATENTED DEVICE FOR THE WAR AND NAVY DEPARTMENTS, WITH MAXIMUM
ROYALTIES OF $50,000 PER YEAR COMMENCING JANUARY 1, 1943.  THE ORDERS
FURTHER DIRECTED FEDERAL AND BREEZE TO PAY TO THE TREASURER OF THE
UNITED STATES "THE BALANCE IN EXCESS" OF THE ROYALTY PAYMENTS
AUTHORIZED BY THE ORDERS "WHICH WERE DUE TO LICENSOR AND WERE UNPAID ON
THE EFFECTIVE DATE" OF THE NOTICE, OR WHICH MIGHT THEREAFTER BECOME DUE
TO THE LICENSOR. 

ACCORDING TO THE BILL OF COMPLAINT THERE ARE LARGE AMOUNTS DUE AND
OWING TO APPELLANT AS ROYALTIES UNDER ITS LICENSE CONTRACT WITH FEDERAL
AND THE CONTRACT BETWEEN FEDERAL AND BREEZE.  IT ALSO APPEARS THAT
APPELLANT HAS BROUGHT A SEPARATE SUIT IN THE UNITED STATES DISTRICT
COURT FOR NEW JERSEY AGAINST BREEZE AND FEDERAL FOR AN ACCOUNTING FOR
THE ROYALTIES SAID TO BE DUE TO APPELLANT, IN WHICH BREEZE ALONE WAS
SERVED BY PROCESS AND HAS APPEARED AND ANSWERED.  THE CAUSE IS AT
ISSUE, AND THE COURT HAS RULED THAT APPELLANT RECOVER ALL ROYALTIES
WHICH HAVE ACCRUED OR MAY ACCRUE TO THE DATE OF TRIAL. 

THE ANSWER OF APPELLEE BREEZE IN THE PRESENT SUIT DENIES THAT IT OWES
ANY ROYALTIES TO APPELLANT.  IT ALLEGES THAT WHETHER THE ROYALTY
ADJUSTMENT ACT IS VALID OR INVALID IS A MATTER WHICH IS IMMATERIAL TO
APPELLEE FOR THE REASON THAT IT OWES APPELLANT NO MONEY AS ROYALTIES OR
OTHERWISE.  IN THE PRESENT SUIT APPELLANT ASKS NO JUDGMENT FOR THE
RECOVERY OF THE ROYALTIES ALLEGED TO BE DUE FROM FEDERAL AND APPELLEE
BREEZE.  IT SEEKS ONLY AN ADJUDICATION THAT THE ROYALTY ADJUSTMENT ACT
AND THE ORDERS PURPORTING TO BE MADE IN CONFORMITY TO IT ARE
UNCONSTITUTIONAL AS APPLIED TO APPELLANT, AND ASKS AN INJUNCTION
RESTRAINING BREEZE AND FEDERAL FROM COMPLYING WITH THE ACT AND THE
ORDERS BY PAYING ANY PART OF THE ROYALTIES INTO THE TREASURY OR TO ANY
PERSON OTHER THAN APPELLANT. 

WE AGREE WITH THE CONCLUSION OF THE DISTRICT COURT BELOW THAT
APPELLANT'S BILL OF COMPLAINT STATES NO CAUSE OF ACTION IN EQUITY AND
PRESENTS NO CASE OR CONTROVERSY WITHIN THE JUDICIAL POWER OF THE UNITED
STATES AS DEFINED BY SEC. 2 OF ARTICLE III OF THE CONSTITUTION. 

THE ONLY RIGHTS ASSERTED AS THE BASIS FOR THE RELIEF SOUGHT BY
APPELLANT ARE DERIVED FROM THE LICENSE AGREEMENTS.  THOSE AGREEMENTS,
SO FAR AS NOW APPEARS AND AS WE ASSUME FOR PRESENT PURPOSES, ARE
CONTRACTUAL OBLIGATIONS TO PAY THE STIPULATED ROYALTIES.  AS THEY
ACCRUE, THE ROYALTIES BECOME SIMPLE DEBTS RECOVERABLE IN AN ACTION AT
LAW, OR POSSIBLY, WHERE THE ACCOUNTS ARE COMPLICATED, IN A PROCEEDING
FOR AN ACCOUNTING SUCH AS APPELLANT HAS ALREADY BEGUN IN ITS SEPARATE
SUIT PENDING IN THE DISTRICT COURT OF NEW JERSEY.  KIRBY V. LAKE SHORE
& M.S.R. CO., 120 U.S. 130; UNITED STATES V. OLD SETTLERS, 148 U.S.
427, 465. 

APPELLANT DOES NOT IN THE PRESENT SUIT BRING TO OUR ATTENTION ANY
FACTS SHOWING OR TENDING TO SHOW THAT A SUIT TO RECOVER A MONEY
JUDGMENT FOR THE ROYALTIES WOULD NOT AFFORD COMPLETE AND ADEQUATE
RELIEF WITHOUT RESORT TO AN EQUITABLE REMEDY.  IN SUCH A SUIT IF
APPELLEE BREEZE IS OBLIGATED BY THE CONTRACTS IN QUESTION TO PAY THE
ROYALTIES TO APPELLANT, IT CAN DISCHARGE THAT OBLIGATION ONLY BY
PAYMENT OF THE AMOUNT DUE, OR BY SETTING UP THE ROYALTY ADJUSTMENT ACT
AS A DEFENSE.  COMPLIANCE WITH THE DUTY UNDER THE ACT TO PAY INTO THE
TREASURY THE ROYALTIES WITHHELD FROM APPELLANT WOULD OPERATE BY THE
TERMS OF THE ACT AS A DISCHARGE OF THE OBLIGATION TO PAY APPELLANT.  IF
THAT DEFENSE WERE OFFERED, THE CONSTITUTIONAL VALIDITY OF THESE
PROVISIONS OF THE ACT WOULD BE A JUSTICIABLE ISSUE IN THE CASE, SINCE
UPON ITS ADJUDICATION WOULD DEPEND APPELLANT'S RIGHT OF RECOVERY. 

BUT WHETHER THE PROVISIONS OF THE ACT BE VALID OR INVALID APPELLANT
SHOWS NO GROUND FOR EQUITABLE RELIEF.  IF VALID THEY WOULD BE A
DEFENSE, AND APPELLANT WOULD BE ENTITLED TO NO RELIEF OTHER THAN THAT
AFFORDED BY THE SUIT AGAINST THE GOVERNMENT AUTHORIZED BY SEC. 2 OF THE
ACT.  IF INVALID, APPELLANT'S RIGHT TO RECOVER REMAINS UNIMPAIRED.  THE
SUFFICIENCY OF THE DEFENSE MAY BE AS READILY TESTED IN A SUIT AT LAW TO
RECOVER THE ROYALTIES AS BY THE PRESENT SUIT IN EQUITY TO ENJOIN
PAYMENT OF THE ROYALTIES INTO THE TREASURY.  IN EITHER CASE APPELLANT
WOULD RECEIVE ALL THE RELIEF TO WHICH IT SHOWS ITSELF ENTITLED. 

THE OBLIGATION TO PAY ROYALTIES, AS WE HAVE SAID, APPEARS TO BE NO
MORE THAN A DEBT.  THERE IS NO CONTENTION THAT IT IS A FIDUCIARY
OBLIGATION TO TURN AN EARMARKED FUND OVER TO APPELLANT.  THE COMPLAINT
DOES NOT INDICATE THAT IF APPELLEE IS NOT ENJOINED IT WILL PAY THE
ROYALTIES INTO THE TREASURY, OR, IF IT DOES, THAT APPELLEE WILL BE
UNABLE TO RESPOND TO A JUDGMENT IN APPELLANT'S FAVOR.  APPELLANT THUS
FAILS TO ASSERT ANY RIGHT OF RECOVERY AT LAW IN THE PRESENT SUIT OR TO
SHOW THAT ITS REMEDY AVAILABLE AT LAW IS SO INADEQUATE AS TO ENTITLE IT
TO ASK AN EQUITABLE REMEDY.  JUDICIAL CODE, SEC. 267(28 U.S.C. SEC.
384); BOISE ARTESIAN WATER CO. V. BOISE CITY, 213 U.S. 276, 283; PUSEY
& JONES CO. V. HANSSEN, 261 U.S. 491, 497; HURLEY V. KINCAID, 285 U.S.
95, 105; SCHOENTHAL V. IRVING TRUST CO., 287 U.S. 92, 94. 

SO FAR AS THE PRESENT SUIT SEEKS A DECLARATORY JUDGMENT OR AN
INJUNCTION RESTRAINING PAYMENT OF THE ROYALTIES INTO THE TREASURY, IT
RAISES NO JUSTICIABLE ISSUE.  APPELLANT ASSERTS IN THE PRESENT SUIT NO
RIGHT TO RECOVER THE ROYALTIES.  IT ASKS ONLY A DETERMINATION THAT THE
ROYALTY ADJUSTMENT ACT IS UNCONSTITUTIONAL AND, IF SO FOUND, THAT
COMPLIANCE WITH THE ACT BE ENJOINED, AN ISSUE WHICH APPELLEE BY ITS
ANSWER DECLINES TO CONTEST.  IF CONTESTED THE VALIDITY OF THE ACT WOULD
BE AN ISSUE WHICH, SO FAR AS IT COULD EVER BECOME MATERIAL, WOULD
PROPERLY ARISE ONLY IN A SUIT TO RECOVER THE ROYALTIES, WHERE IT COULD
BE APPROPRIATELY DECIDED. 

IN THE CIRCUMSTANCES DISCLOSED BY THE RECORD AND FOR PURPOSES OF THE
PRESENT SUIT, THE CONSTITUTIONALITY OF THE ACT IS WITHOUT LEGAL
SIGNIFICANCE AND CAN INVOLVE NO JUSTICIABLE QUESTION UNLESS AND UNTIL
APPELLANT SEEKS RECOVERY OF THE ROYALTIES, AND THEN ONLY IF APPELLEE
RELIES ON THE ACT AS A DEFENSE.  THE PRAYER OF THE BILL OF COMPLAINT
THAT THE ACT BE DECLARED UNCONSTITUTIONAL IS THUS BUT A REQUEST FOR AN
ADVISORY OPINION AS TO THE VALIDITY OF A DEFENSE TO A SUIT FOR RECOVERY
OF THE ROYALTIES.  APPELLEE COULD HAVE MADE SUCH A DEFENSE BUT DOES NOT
APPEAR TO HAVE DONE SO IN THE PENDING ACCOUNTING SUIT AND DOES NOT
ASSERT ITS VALIDITY HERE.  THE BILL OF COMPLAINT THUS FAILS TO DISCLOSE
ANY GROUND FOR THE DETERMINATION OF ANY QUESTION OF LAW OR FACT WHICH
COULD BE THE BASIS OF A JUDGMENT ADJUDICATING THE RIGHTS OF THE
PARTIES. 

THE DECLARATORY JUDGMENT PROCEDURE IS AVAILABLE IN THE FEDERAL COURTS
ONLY IN CASES INVOLVING AN ACTUAL CASE OR CONTROVERSY, NASHVILLE, C. &
ST. L.R. CO. V. WALLACE, 288 U.S. 249, 258-264; AETNA LIFE INS. CO. V.
HAWORTH, 300 U.S. 227, 239-240, WHERE THE ISSUE IS ACTUAL AND
ADVERSARY, CHICAGO & GRAND TRUNK R. CO. V. WELLMAN, 143 U.S. 339; SOUTH
SPRING GOLD CO. V. AMADOR GOLD CO., 145 U.S. 300, 301, AND IT MAY NOT
BE MADE THE MEDIUM FOR SECURING AN ADVISORY OPINION IN A CONTROVERSY
WHICH HAS NOT ARISEN.  NEW JERSEY V. SARGENT, 269 U.S. 328; UNITED
STATES V. WEST VIRGINIA, 295 U.S. 463; ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 324; ANNISTON MANUFACTURING CO. V. DAVIS, 301
U.S. 337, 355; ELECTRIC BOND & SHARE CO. V. S.E.C., 303 U.S. 419, 443. 
IN ANY CASE, THE COURT WILL NOT PASS UPON THE CONSTITUTIONALITY OF
LEGISLATION IN A SUIT WHICH IS NOT ADVERSARY, CHICAGO & GRAND TRUNK R.
CO. V. WELLMAN, SUPRA; BARTEMEYER V. IOWA, 18 WALL.  129, 134-35;
ATHERTON MILLS V. 259 U.S. 13, 15, OR UPON THE COMPLAINT OF ONE WHO
FAILS TO SHOW THAT HE IS INJURED BY ITS OPERATION, TYLER V. THE JUDGES,
179 U.S. 405; HENDRICK V. MARYLAND, 235 U.S. 610, 621, OR UNTIL IT IS
NECESSARY TO DO SO TO PRESERVE THE RIGHTS OF THE PARTIES.  LIVERPOOL,
N.Y. & P.S.S. CO. V. COMMISSIONERS, 113 U.S. 33, 39; BURTON V. UNITED
STATES, 196 U.S. 283, 295; ABRAMS V. VAN SCHAICK, 293 U.S. 188;
WILSHIRE OIL CO. V. UNITED STATES, 295 U.S. 100.  AFFIRMED. 

FN1  THE DISTRICT COURT OF THREE JUDGES WAS RIGHTLY CONVENED,
ALTHOUGH THE SUIT WAS BROUGHT AGAINST PRIVATE PARTIES NOT PUBLIC
OFFICERS.  UNLIKE SEC. 266 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 380,
THE ACT OF AUGUST 24, 1937 DOES NOT RESTRICT ITS REQUIREMENT FOR THE
ASSEMBLY OF A DISTRICT COURT OF THREE JUDGES TO SUITS AGAINST PUBLIC
OFFICERS.  SEE OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO., 292
U.S. 386.  SECTION 3 OF THE ACT OF 1937 DIRECTS THAT A COURT OF THREE
JUDGES IS TO BE CONVENED WHENEVER AN INTERLOCUTORY OR PERMANENT
INJUNCTION IS SOUGHT "SUSPENDING OR RESTRAINING THE ENFORCEMENT,
OPERATION, OR EXECUTION OF, OR SETTING ASIDE, IN WHOLE OR IN PART, ANY
ACT OF CONGRESS" UPON THE GROUND THAT IT IS REPUGNANT TO THE
CONSTITUTION.  THIS LANGUAGE APPEARS TO HAVE BEEN TAKEN FROM THE URGENT
DEFICIENCIES ACT OF 1913, 28 U.S.C. SEC. 47.  ITS CHOICE OF LANGUAGE,
DIFFERING FROM THAT OF SEC. 266 OF THE JUDICIAL CODE, MUST BE TAKEN TO
BE DELIBERATE.  SEE JAMESON & CO. V. MORGENTHAU, 307 U.S. 171, 173. 

HERE THE INJUNCTION SOUGHT WOULD RESTRAIN APPELLEE FROM PAYMENT OF
THE ROYALTIES INTO THE TREASURY AS REQUIRED BY THE ACT OF CONGRESS AND
WOULD THUS RESTRAIN THE "OPERATION" OR "EXECUTION" OF THE STATUTE. 
LIKE INTERPRETATION HAS BEEN GIVEN TO THE LIKE LANGUAGE OF THE URGENT
DEFICIENCIES ACT OF 1913.  SEE LAMBERT RUN COAL CO. V. B. & O.R. CO.,
258 U.S. 377; VENNER V. MICHIGAN CENTRAL R. CO., 271 U.S. 127. 

GARMENT WORKERS' UNION V. DONNELLY CO., 304 U.S. 243, IS TO BE
DISTINGUISHED FROM THE PRESENT CASE.  THERE AN INJUNCTION WAS SOUGHT
AGAINST A LABOR UNION FOR VIOLATION OF THE ANTI-TRUST LAWS, THE
PLAINTIFF APPELLEE CONTENDING THAT THE NORRIS-LAGUARDIA ACT, 47 STAT.
70, 29 U.S.C. SEC. 101, WAS INAPPLICABLE OR, IF APPLICABLE,
UNCONSTITUTIONAL.  THIS COURT HELD THAT A DISTRICT COURT OF THREE
JUDGES WAS UNAUTHORIZED BY SEC. 3 OF THE 1937 ACT, SINCE THE CONTENTION
WITH RESPECT TO THE NORRIS-LAGUARDIA ACT WAS NOT AN APPLICATION FOR AN
INJUNCTION WITHIN THE MEANING OF SEC. 3, BUT MERELY AN ANTICIPATION OF
A DEFENSE GOING TO THE JURISDICTION OF THE COURT.  EVEN THOUGH THE
NORRIS-LAGUARDIA ACT WERE APPLICABLE, IT COULD NOT, IF
UNCONSTITUTIONAL, OPERATE AS A DEFENSE, AND NO CASE WAS MADE FOR AN
INJUNCTION. 
..END :












COFFMAN V. FED. LABORATORIES, 323 U.S. 325 


NO. 485.  ARGUED DECEMBER 7, 1944.  - DECIDED JANUARY 2, 1945.  -
AFFIRMED. 


DECIDED UPON THE AUTHORITY OF COFFMAN V. BREEZE CORPORATIONS, INC.,
ANTE, P. 316. 

COFFMAN V. FEDERAL LABORATORIES, INC. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF PENNSYLVANIA. 

APPEAL FROM AN ORDER OF A DISTRICT COURT OF THREE JUDGES, CONVENED
PURSUANT TO 28 U.S.C. SEC. 380(A), DENYING AN INJUNCTION AND STRIKING
PORTIONS OF THE BILL OF COMPLAINT.  THE UNITED STATES HAD BEEN ALLOWED
TO INTERVENE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO COFFMAN V. BREEZE CORPORATIONS, ANTE, P.
316. 

LIKE THAT CASE THE PRESENT SUIT WAS BROUGHT BY APPELLANT AGAINST
FEDERAL LABORATORIES, INC. AND BREEZE CORPORATIONS, INC. TO SECURE
AMONG OTHER THINGS AN ADJUDICATION OF THE CONSTITUTIONAL VALIDITY OF
THE ROYALTY ADJUSTMENT ACT OF CONGRESS OF OCTOBER 31, 1942, 56 STAT.
1013, 35 U.S.C. SUPP. III, SECS. 89-96.  IT SOUGHT ALSO TO ENJOIN
DEFENDANTS FROM PAYING OVER TO THE TREASURY OF THE UNITED STATES
ROYALTIES ALLEGED TO BE DUE UPON THE LICENSE AGREEMENTS INVOLVED IN THE
BREEZE SUIT, AS REQUIRED BY THE NOTICES AND ORDERS OF THE WAR AND NAVY
DEPARTMENTS SERVED UPON APPELLANT AND THE DEFENDANTS PURSUANT TO THE
ACT. 

IN ADDITION, THE BILL OF COMPLAINT ALLEGES THAT THE DEFENDANTS OWE
ROYALTIES TO APPELLANT UNDER THE LICENSE AGREEMENTS, FOR WHICH IT PRAYS
AN ACCOUNTING.  BY WAY OF ANTICIPATION OF THE DEFENSE THAT THE ROYALTY
ADJUSTMENT ACT AND THE NOTICES AND ORDERS OF THE WAR AND NAVY
DEPARTMENTS REQUIRE APPELLEE TO PAY THE ROYALTIES INTO THE TREASURY,
APPELLANT SETS UP THE UNCONSTITUTIONALITY OF THE ACT. 

A DISTRICT COURT OF THREE JUDGES WAS CONVENED TO HEAR THE CAUSE AS
REQUIRED BY THE ACT OF AUGUST 24, 1937, 50 STAT. 752, 28 U.S.C. SEC.
380(A), AND THE UNITED STATES WAS ALLOWED TO INTERVENE AS A PARTY IN
ACCORDANCE WITH SEC. 1 OF THE ACT.  50 STAT. 751, 28 U.S.C. SEC. 401. 
THE DISTRICT COURT, ON MOTION OF THE GOVERNMENT, DISMISSED SO MUCH OF
THE BILL OF COMPLAINT AS SOUGHT AN ADJUDICATION OF THE CONSTITUTIONAL
VALIDITY OF THE ROYALTY ADJUSTMENT ACT AND OF THE NOTICE AND ORDERS
ISSUED UNDER IT.  IT STRUCK FROM THE BILL OF COMPLAINT THE ANTICIPATORY
ALLEGATIONS THAT THE ROYALTY ADJUSTMENT ACT AND THE ORDERS WITH RESPECT
TO THE ROYALTIES OWING APPELLANT ARE UNCONSTITUTIONAL AND VOID, AND IT
STRUCK THE PRAYER OF THE BILL FOR AN INJUNCTION. 

FOR THE REASONS STATED IN OUR OPINION IN THE BREEZE CASE WE HOLD THAT
APPELLANT HAS SHOWN NO GROUND FOR EQUITABLE RELIEF BY WAY OF
INJUNCTION.  THE ALLEGATIONS OF UNCONSTITUTIONALITY OF THE ROYALTY
ADJUSTMENT ACT AND THE ORDERS WERE PLEADED ONLY AS SUPPORTING THE
PRAYER FOR AN INJUNCTION AND WERE THEREFORE PROPERLY STRICKEN WITH THAT
PRAYER.  THE ALLEGATIONS ARE NOT ESSENTIAL TO OR A PROPER PART OF THE
CAUSE OF ACTION FOR AN ACCOUNTING AND RECOVERY OF THE ROYALTIES ALLEGED
TO BE DUE. 

SINCE THE ALLEGATIONS WERE STRICKEN, APPELLEE FEDERAL HAS ANSWERED
SETTING UP AS A SEPARATE DEFENSE THE ROYALTY ADJUSTMENT ORDERS
PROHIBITING PAYMENT OF THE ROYALTIES TO APPELLANT.  UPON THAT ISSUE
APPELLANT WILL BE FREE TO CONTEST THE CONSTITUTIONAL VALIDITY OF THE
ORDERS.  THE JUDGMENT BELOW IS ACCORDINGLY AFFIRMED. 
..END :






MCCULLOUGH V. KAMMERER CORP., 323 U.S. 327 


NO. 46.  ARGUED DECEMBER 11, 1944.  - DECIDED JANUARY 2, 1945.  - 138
F.2D 482, DISMISSED. 


SINCE THE ONLY QUESTION FOR THE REVIEW OF WHICH CERTIORARI WAS GRANTED
IN THIS CASE IS ONE WHICH WAS NOT PROPERLY RAISED, LITIGATED, OR PASSED
UPON BELOW, THE WRIT IS DISMISSED.  P. 328. 

MCCULLOUGH V. KAMMERER CORPORATION ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 322 U.S. 766, TO REVIEW THE AFFIRMANCE OF A DECREE FOR
THE PLAINTIFFS, RESPONDENTS HERE, IN A SUIT FOR INFRINGEMENT OF A
PATENT, 39 F.SUPP.  213.  SEE ALSO 143 F.2D 595. 

PER CURIAM. 

IN THIS CASE BOTH THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT HAVE HELD VALID AND INFRINGED THE REILLY AND
STONE PATENT, NO. 1,625,391, OF APRIL 19, 1927, FOR A PIPE CUTTING
TOOL, OF WHICH PATENT RESPONDENT KAMMERER CORPORATION IS ASSIGNEE.  THE
PATENT EXPIRED ON APRIL 18, 1944, ONLY DAMAGE FOR INFRINGEMENT IS
INVOLVED, AND THERE IS NO CONFLICT OF DECISION WITH RESPECT TO THE
PATENT.  THIS COURT GRANTED CERTIORARI ONLY BECAUSE THE PETITION FOR
CERTIORARI PRESENTED AS A GROUND OF DEFENSE TO THE SUIT, THAT
RESPONDENT KAMMERER CORPORATION HAD LICENSED TO RESPONDENT BAASH-ROSS
TOOL COMPANY THE USE OF THE PATENTED DEVICE IN SUIT, BY AN AGREEMENT
WHICH STIPULATED FOR RESTRICTIONS ON SUCH USE WHICH ARE ASSERTED TO BE
UNAUTHORIZED BY THE PATENT MONOPOLY, CONTRARY TO PUBLIC POLICY, AND
UNLAWFUL. 

ON ORAL ARGUMENT AND SUBMISSION OF THE CAUSE IT APPEARS THAT ALTHOUGH
PETITIONER BY ITS AMENDED ANSWER ALLEGED GENERALLY THAT RESPONDENTS "DO
NOT COME INTO  ...  COURT WITH CLEAN HANDS," THE ANSWER MADE NO MENTION
OF THE RESTRICTIONS CONTAINED IN THE LICENSE AGREEMENT.  THE DISTRICT
COURT MADE NO FINDINGS OF FACT OR LAW WITH RESPECT TO THEM.  ON APPEAL
TO THE CIRCUIT COURT OF APPEALS PETITIONER ASSIGNED NO ERROR WITH
REFERENCE TO THEM AND THE CIRCUIT COURT OF APPEALS DID NOT CONSIDER
THEM, SAYING:  "WE AFFIRM THE JUDGMENTS OF THE DISTRICT COURT,
CONSIDERING HERE ONLY THE APPELLANT'S CLAIM OF ERROR."  138 F.2D 482. 

THUS THE ONLY QUESTION FOR WHICH WE GRANTED CERTIORARI IS ONE NOT
PROPERLY RAISED, LITIGATED OR PASSED UPON BELOW.  DUIGNAN V. UNITED
STATES, 274 U.S. 195, 200; BURNET V. COMMONWEALTH IMPROVEMENT CO., 287
U.S. 415, 418; ZELLERBACH PAPER CO. V. HELVERING, 293 U.S. 172, 182;
UNITED STATES V. CLASSIC, 313 U.S. 299, 329.  THE GROUNDS ASSERTED FOR
THE ALLOWANCE OF CERTIORARI ARE INADEQUATELY SUPPORTED BY THE RECORD,
AND THE WRIT IS THEREFORE DISMISSED. 
..END :























CLEVELAND V. UNITED STATES, 323 U.S. 329 


ARGUED DECEMBER 6, 1944.  - DECIDED JANUARY 2, 1945.  - 52 F.SUPP.  906,
AFFIRMED.  - 143 OHIO ST. 251, 55 N.E.2D 265, REVERSED. 


1.  UNDER SEC. 266 OF THE JUDICIAL CODE, THE JURISDICTION OF A
DISTRICT COURT OF THREE JUDGES WAS PROPERLY INVOKED TO HEAR AND
DETERMINE A SUIT TO RESTRAIN COUNTY AND MUNICIPAL OFFICIALS FROM
ASSESSING AND COLLECTING ALLEGEDLY UNCONSTITUTIONAL TAXES, WHERE SUCH
OFFICIALS WERE ACTING IN THE INTEREST OF THE STATE AND PURSUANT TO A
STATE LAW OF STATEWIDE APPLICATION.  P. 332. 

2.  THE UNITED STATES HOUSING ACT OF SEPTEMBER 1, 1937, PROVIDING FOR
THE USE OF FEDERAL FUNDS AND CREDIT TO IMPROVE HOUSING CONDITIONS, WAS
A VALID EXERCISE OF THE POWER OF CONGRESS TO PROVIDE FOR THE GENERAL
WELFARE.  CONST., ART. I, SEC. 8, CL. 1.  P. 333. 

3.  IT WAS WITHIN THE POWER OF CONGRESS TO EXEMPT FROM STATE TAXATION
PROPERTY ACQUIRED AND OWNED BY THE UNITED STATES, OR AN INSTRUMENTALITY
THEREOF, PURSUANT TO THE UNITED STATES HOUSING ACT.  P. 333. 

CITY OF CLEVELAND V. UNITED STATES ET AL. 

NO. 68.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF OHIO* . 

*TOGETHER WITH NO. 69, BOYLE, COUNTY TREASURER OF CUYAHOGA COUNTY, ET
AL. V. UNITED STATES ET AL., ALSO ON APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO - ARGUED DECEMBER
6, 1944; AND NO. 388, FEDERAL PUBLIC HOUSING AUTHORITY (FORMERLY UNITED
STATES HOUSING AUTHORITY) V. GUCKENBERGER, AUDITOR, HAMILTON COUNTY, ET
AL., ON APPEAL FROM THE SUPREME COURT OF OHIO - ARGUED DECEMBER 6, 7,
1944. 

APPEALS, IN NOS. 68 AND 69, FROM A DECREE OF A DISTRICT COURT OF
THREE JUDGES ENJOINING ASSESSMENT AND COLLECTION OF STATE TAXES; AND,
IN NO. 388, FROM A JUDGMENT SUSTAINING THE DENIAL OF AN APPLICATION FOR
EXEMPTION FROM A STATE TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS PRESENT THE SAME QUESTION OF SUBSTANTIVE LAW AND WILL
BE DEALT WITH IN A SINGLE OPINION. 

IN NO. 68 THE APPELLEES SOUGHT AN INJUNCTION AGAINST THE TAXING
OFFICIALS OF CUYAHOGA COUNTY, OHIO, AND THOSE OF THE CITY OF CLEVELAND,
TO RESTRAIN THEM FROM ATTEMPTING TO ASSESS AND COLLECT TAXES, PURSUANT
TO THE LAWS OF OHIO, ON LANDS ACQUIRED BY CONDEMNATION AND OWNED BY THE
APPELLEES IN THE CITY AND COUNTY.  A PRELIMINARY INJUNCTION WAS ISSUED
BUT, PURSUANT TO STIPULATION, THE COURT PROCEEDED AT ONCE TO HEAR THE
CASE ON THE MERITS, AND ENTERED A FINAL INJUNCTION.  FN1 

THE LANDS INVOLVED WERE ACQUIRED BY THE UNITED STATES BY CONDEMNATION
UNDER THE NATIONAL RECOVERY PROGRAMME FOR LOW-COST HOUSING PROJECTS. 
THE FEDERAL PUBLIC HOUSING AUTHORITY THEN ERECTED LOW-COST DWELLING
UNITS WHICH WERE LEASED TO CLEVELAND METROPOLITAN HOUSING, A STATE OF
OHIO AUTHORITY.  THE LATTER HAS SUBLET THE UNITS TO TENANTS FOR
RESIDENCE PURPOSES. 

THE APPELLANT CONTENDED THAT THE UNITED STATES HOUSING ACT OF
SEPTEMBER 1, 1937,  FN2  IS UNCONSTITUTIONAL BECAUSE CONGRESS HAS NO
POWER UNDER THE CONSTITUTION TO ESTABLISH LOW-COST HOUSING PROJECTS. 

A MAJORITY OF THE COURT BELOW HELD THE FEDERAL STATUTE AUTHORIZED BY
THE CONSTITUTION.  FN3  ITS REASONING WAS THAT EVEN THOUGH THE EVILS OF
BAD HOUSING ARE LOCAL IN THEIR ORIGIN, THEIR EFFECT MAY BECOME SO
WIDESPREAD AS TO CREATE A MENACE TO THE NATIONAL WELFARE AND THAT
CONGRESS IS EMPOWERED TO DEAL WITH THE SUBJECT IN THAT ASPECT.  THE
DISSENTING JUDGE WAS OF THE VIEW THAT THE PROJECT AMOUNTED MERELY TO AN
EMBARKATION BY THE FEDERAL GOVERNMENT IN A PRIVATE BUSINESS AND THAT
THE GOVERNMENT COULD NOT DO THIS IN SUCH A WAY AS TO IMMUNIZE THE
PROPERTY EMPLOYED FROM NORMAL STATE TAXATION TO SUPPORT LOCAL POLICE
AND OTHER SERVICES REQUIRED BY THE COMMUNITY OF WHICH THE HOUSING
PROJECT FORMS A PART. 

IN NO. 69 THE APPELLEES SOUGHT AND WERE AWARDED AN INJUNCTION AGAINST
THE COLLECTION OF LOCAL TAXES UNDER LIKE CIRCUMSTANCES. 

IN NO. 388 THE UNITED STATES HOUSING AUTHORITY APPLIED FOR EXEMPTION
FROM LOCAL PROPERTY TAXES PURSUANT TO THE LAW OF OHIO,  FN4  IN RESPECT
OF A HOUSING PROJECT IN CINCINNATI.  THE REAL ESTATE HAD BEEN PURCHASED
BY THE UNITED STATES AND DEVOTED TO A LOW-COST HOUSING PROJECT PURSUANT
TO THE FEDERAL STATUTE.  FN5  THE APPLICATION WAS DENIED.  APPEAL WAS
TAKEN TO THE SUPREME COURT OF OHIO.  FN6  THE DENIAL WAS AFFIRMED ON
THE GROUNDS THAT NO EXEMPTION WAS PERMITTED BY THE CONSTITUTION AND
STATUTES OF THE STATE AND THAT REFUSAL OF THE CLAIMED EXEMPTION WAS
CONSISTENT WITH THE FEDERAL CONSTITUTION.  FN7  AN APPEAL TO THIS COURT
WAS PERFECTED. 

NOS. 68 AND 69 WERE HEARD AND DECIDED BY A DISTRICT COURT OF THREE
JUDGES PURSUANT TO SEC. 266 OF THE JUDICIAL CODE.  FN8  THE APPELLANTS
INSIST THAT THEY DO NOT ACT AS OFFICERS OF THE STATE IN THE ENFORCEMENT
OR EXECUTION OF ANY STATE STATUTE IN COLLECTING THE TAXES IN QUESTION,
AND THAT SEC. 266 THEREFORE CONFERS NO JURISDICTION ON A THREE-JUDGE
COURT TO HEAR THE CAUSE.  WE OVERRULE THIS CONTENTION. 

THE SECTION IS INAPPLICABLE TO SUITS CHALLENGING LOCAL ORDINANCES OR
STATUTES HAVING ONLY LOCAL APPLICATION.  FN9  BUT THESE CASES INVOLVE
STATE LAW THE APPLICATION OF WHICH IS STATE-WIDE.  FN10 IF THE TAXING
OFFICIALS WERE, IN THESE INSTANCES, THOUGH ACTING UNDER SUCH A LAW,
DOING SO AS LOCAL OFFICIALS AND ON BEHALF OF THE LOCALITY AND NOT AS
OFFICERS OF THE STATE, THE SECTION IS INAPPLICABLE TO SUITS TO RESTRAIN
THEM.  FN11  HERE, HOWEVER, THE OFFICIALS WERE ENFORCING STATE LAWS
EMBODYING A STATE-WIDE CONCERN AND IN THE STATE'S INTEREST, AND IN SUCH
A CASE SEC. 266 IS APPLICABLE.  FN12  THE JURISDICTION OF A COURT OF
THREE JUDGES WAS PROPERLY INVOKED. 

LITTLE NEED BE SAID CONCERNING THE MERITS.  SECTION 1 OF THE HOUSING
ACT  FN13  DECLARES A POLICY TO PROMOTE THE GENERAL WELFARE OF THE
NATION BY EMPLOYING ITS FUNDS AND CREDIT TO ASSIST THE STATES AND THEIR
POLITICAL SUBDIVISIONS TO RELIEVE UNEMPLOYMENT AND SAFEGUARD HEALTH,
SAFETY AND MORALS OF THE NATION'S CITIZENS BY IMPROVING HOUSING
CONDITIONS.  SECTION 5  FN14  PROVIDES IN PART, "THE AUTHORITY,
INCLUDING BUT NOT LIMITED TO ITS FRANCHISE, CAPITAL, RESERVES, SURPLUS,
LOANS, INCOME, ASSETS, AND PROPERTY OF ANY KIND, SHALL BE EXEMPT FROM
ALL TAXATION NOW OR HEREAFTER IMPOSED BY THE UNITED STATES OR BY ANY
STATE, COUNTY, MUNICIPALITY, OR LOCAL TAXING AUTHORITY."  SECTION 13
AUTHORIZES AGREEMENTS BY THE AUTHORITY TO PAY ANNUAL SUMS, NOT
EXCEEDING TAXES WHICH WOULD OTHERWISE BE PAID, IN LIEU OF TAXES.  FN15 

CHALLENGE OF THE POWER OF CONGRESS TO ENACT THE HOUSING ACT MUST
FAIL.  FN16  AND CONGRESS MAY EXEMPT PROPERTY OWNED BY THE UNITED
STATES OR ITS INSTRUMENTALITY FROM STATE TAXATION IN FURTHERANCE OF THE
PURPOSES OF THE FEDERAL LEGISLATION.  THIS IS SETTLED BY SUCH AN ARRAY
OF AUTHORITY THAT CITATION WOULD SEEM UNNECESSARY.  FN17 

THE JUDGMENTS IN NOS. 68 AND 69 ARE AFFIRMED AND THAT IN NO. 388 IS
REVERSED.  NOS. 68 AND 69 AFFIRMED.  NO. 388 REVERSED. 

FN1  52 F.SUPP.  906. 

FN2  42 U.S.C. 1401 FF. 

FN3  ART. I, SEC. 8, CL. 1. 

FN4  OHIO GENERAL CODE, SECS. 5616, 5570-1. 

FN5  SUPRA, NOTE 2. 

FN6  PURSUANT TO SECS. 1464, 1464-1 OHIO GENERAL CODE (1942 SUPP.). 

FN7  143 OHIO ST. 251; 55 N.E.2D 265. 

FN8  28 U.S.C. 380. 

FN9  EX PARTE COLLINS, 277 U.S. 565; EX PARTE PUBLIC NATIONAL BANK,
278 U.S. 101; RORICK V. BOARD OF COMMISSIONERS, 307 U.S. 208. 

FN10  SEE OHIO GENERAL CODE SECS. 5328, 5351. 

FN11  EX PARTE COLLINS, SUPRA; EX PARTE PUBLIC NATIONAL BANK, SUPRA. 

FN12  SPIELMAN MOTOR CO. V. DODGE, 295 U.S. 89; RORICK V. BOARD OF
COMMISSIONERS, SUPRA, 212. 

FN13  42 U.S.C. 1401. 

FN14  42 U.S.C. 1405(E). 

FN15  42 U.S.C. 1413. 

FN16  UNITED STATES V. BUTLER, 297 U.S. 1, 64-67; STEWARD MACHINE CO.
V. DAVIS, 301 U.S. 548, 586; HELVERING V. DAVIS, 301 U.S. 619, 640. 

FN17  SEE, E.G. VAN BROCKLIN V. TENNESSEE, 117 U.S. 151; PITTMAN V.
HOME OWNERS' LOAN CORP., 308 U.S. 21; FEDERAL LAND BANK V. BISMARCK
LUMBER CO., 314 U.S. 95. 
..END :
















GEORGIA LUMBER CO. V. COMPANIA, 323 U.S. 334 


NO. 180.  ARGUED DECEMBER 14, 1944.  - DECIDED JANUARY 2, 1945.  - 141
F.2D 652, AFFIRMED. 


1.  UNDER SEC. 8(C) OF THE ACT OF FEBRUARY 13, 1925, WHICH PROVIDES
THAT NO APPEAL TO A CIRCUIT COURT OF APPEALS SHALL BE ALLOWED "UNLESS
APPLICATION THEREFOR BE DULY MADE WITHIN THREE MONTHS," AND WHICH IS
APPLICABLE TO ADMIRALTY PROCEEDINGS, THE DISTRICT COURT HAS DISCRETION,
WHERE WITHIN THE THREE MONTHS' PERIOD A NOTICE OF APPEAL IS FILED IN
THE OFFICE OF THE CLERK OF THE COURT AND THE INTENTION TO APPEAL IS
APPARENT, TO TREAT THE NOTICE OF APPEAL AS AN APPLICATION FOR ALLOWANCE
OF AN APPEAL; AND THE ACTION OF THE DISTRICT COURT IN SO TREATING A
NOTICE OF APPEAL AS AN APPLICATION FOR ALLOWANCE OF AN APPEAL IN THIS
CASE WAS NOT AN ABUSE OF DISCRETION.  P. 336. 

2.  WHERE THE APPEAL STATUTE MERELY REQUIRES THAT AN APPLICATION FOR
APPEAL BE MADE WITHIN THE PRESCRIBED TIME, THE ALLOWANCE MAY BE MADE
SUBSEQUENTLY.  P. 337. 

GEORGIA HARDWOOD LUMBER CO. V. COMPANIA DE NAVEGACION TRANSMAR, S.A.,
OWNER OF THE S.S. KOTOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 692, TO REVIEW THE REVERSAL OF A DECREE
DISMISSING A LIBEL IN ADMIRALTY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ADMIRALTY CASE HERE ON CERTIORARI FROM THE CIRCUIT COURT
OF APPEALS FOR THE FIFTH CIRCUIT.  A SINGLE QUESTION IS PRESENTED. 
PETITIONER CLAIMS THAT THE APPEAL FROM THE DISTRICT COURT TO THE
CIRCUIT COURT OF APPEALS WAS NOT PROPERLY TAKEN.  SINCE THE RULES OF
CIVIL PROCEDURE DO NOT APPLY TO PROCEEDINGS IN ADMIRALTY,  FN1  THE
QUESTION IS WHETHER THE REQUIREMENTS OF SEC. 8(C) OF THE ACT OF
FEBRUARY 13, 1925, 43 STAT. 936, 940, 28 U.S.C. SEC. 230, WERE MET. 
THAT SECTION PROVIDES: 

"NO WRIT OF ERROR OR APPEAL INTENDED TO BRING ANY JUDGMENT OR DECREE
BEFORE A CIRCUIT COURT OF APPEALS FOR REVIEW SHALL BE ALLOWED UNLESS
APPLICATION THEREFOR BE DULY MADE WITHIN THREE MONTHS AFTER THE ENTRY
OF SUCH JUDGMENT OR DECREE." 

A FINAL DECREE DISMISSING THE LIBEL WAS ENTERED ON APRIL 20, 1943. 
ON JULY 6, 1943, THE LIBELLANT ISSUED A NOTICE OF APPEAL, SERVED IT ON
RESPONDENT'S PROCTORS AND OBTAINED THEIR ACCEPTANCE.  IT FILED THE
NOTICE OF APPEAL IN THE OFFICE OF THE CLERK OF THE DISTRICT COURT ON
JULY 12, 1943.  NOTHING ELSE WAS DONE WITHIN THE THREE MONTHS' PERIOD
EXCEPT TO CONSULT THE DISTRICT JUDGE ON THE AMOUNT OF THE APPEAL BOND. 
THE ASSIGNMENT OF ERRORS AND THE APPEAL BOND WERE FILED JULY 21ST.  A
FORMAL PETITION FOR APPEAL WAS FILED ON AUGUST 12TH AND ALLOWED THE
13TH.  ON AUGUST 30TH THE DISTRICT JUDGE ENTERED AN ORDER WHICH TREATED
THE NOTICE OF APPEAL FILED JULY 12TH AS AN APPLICATION FOR ALLOWANCE OF
THE APPEAL AND GRANTED IT.  THAT ORDER RECITED THAT THE LIBELLANT HAD
ASSUMED THAT THE CLERK WOULD PRESENT THE NOTICE OF APPEAL TO THE JUDGE
FOR AN ALLOWANCE, THAT THE JUDGE KNEW WITHIN THE THREE MONTHS' PERIOD
OF LIBELLANT'S INTENTION TO APPEAL AND WOULD HAVE GRANTED IT IF HE HAD
BEEN SO REQUESTED, THOUGH HE ASSUMED A FORMAL ALLOWANCE WAS NOT
NECESSARY.  THE CIRCUIT COURT OF APPEALS HELD THAT THE NOTICE OF APPEAL
FILED JULY 12TH WAS SUFFICIENT AS AN APPLICATION FOR AN APPEAL AND THAT
THE FAILURE TO ALLOW IT WITHIN THE THREE MONTHS' PERIOD WAS NOT FATAL. 
141 F.2D 652. 

WE AGREE WITH THE CIRCUIT COURT OF APPEALS.  APPLICATION FOR AN
ALLOWANCE OF THE APPEAL WAS OF COURSE NECESSARY.  ALASKA PACKERS ASSN.
V. PILLSBURY, 301 U.S. 174; WELLS V. UNITED STATES, 318 U.S. 257, 260. 
BUT THE LAW DOES NOT PRESCRIBE THE FORM IN WHICH AN APPLICATION FOR
ALLOWANCE OF AN APPEAL MUST BE CAST.  WE CANNOT SAY THAT THE TRIAL
JUDGE ABUSED HIS DISCRETION IN TREATING THE NOTICE OF APPEAL AS AN
APPLICATION FOR AN ALLOWANCE.  IT WAS PROPERLY FILED WITH THE CLERK OF
THE DISTRICT COURT.  FN2  STEFFLER V. UNITED STATES, 319 U.S. 38, 40. 
THE INTENTION TO APPEAL WAS APPARENT.  ONLY A FORMAL REQUEST WAS
LACKING.  IN OTHER INSTANCES, WHERE THE SCOPE OF REVIEW WAS NOT
AFFECTED, COMPARABLE IRREGULARITIES IN PERFECTING AN APPEAL HAVE BEEN
DISREGARDED IN THE INTERESTS OF JUSTICE.  TAYLOR V. VOSS, 271 U.S. 176,
182, AND CASES CITED.  WE DO NOT SUGGEST THAT THE MERE FILING OF A
NOTICE OF APPEAL MUST BE TAKEN AS ADEQUATE.  DESIRABLE PRACTICE
INDICATES THAT EXPLICIT INSTEAD OF IMPLIED APPLICATION FOR AN ALLOWANCE
SHOULD BE MADE IN ORDER TO AVOID LITIGATION.  WE HOLD, HOWEVER, THAT
THERE IS DISCRETION TO TREAT THE NOTICE OF APPEAL AS SUCH AN
APPLICATION. 

ALASKA PACKERS ASSN. V. PILLSBURY, SUPRA, DOES NOT REQUIRE A
DIFFERENT RESULT.  IN THAT CASE AN APPEAL WAS SOUGHT TO BE PERFECTED
SIMPLY BY FILING A NOTICE OF APPEAL.  BUT IT DID NOT APPEAR THAT AN
APPEAL WAS EVER ALLOWED.  THE COURT HELD THAT AN APPEAL MUST BE APPLIED
FOR AND ALLOWED.  IT STRESSED THE IMPORTANCE OF THE ALLOWANCE IN
SCREENING OUT IMPROPER OR PREMATURE APPEALS AND IN MAKING CERTAIN THAT
SECURITY FOR COSTS WAS PROVIDED IN APPROPRIATE CASES.  301 U.S. P.
177.  WE ADHERE TO THAT DECISION.  UNDER THIS STATUTE AN ALLOWANCE OF
AN APPEAL IS ESSENTIAL.  MCCRONE V. UNITED STATES, 307 U.S. 61.  WE
ONLY POINT OUT THAT THE ALASKA PACKERS CASE DID NOT INVOLVE THE
QUESTION PRESENTED HERE, I.E., WHETHER A NOTICE OF APPEAL MAY SUFFICE
AS AN APPLICATION FOR AN ALLOWANCE.  NOR DID IT INVOLVE THE FURTHER
QUESTION WHETHER THE ALLOWANCE MUST BE MADE WITHIN THE THREE MONTHS'
PERIOD.  WE HELD IN RECONSTRUCTION FINANCE CORP. V. PRUDENCE GROUP, 311
U.S. 579, THAT A REQUIREMENT OF THE BANKRUPTCY ACT THAT CERTAIN APPEALS
"BE TAKEN TO AND ALLOWED BY THE CIRCUIT COURT OF APPEALS" WITHIN A
PRESCRIBED TIME WAS SATISFIED WHERE THE APPLICATION WAS TIMELY BUT THE
ALLOWANCE OF THE APPEAL CAME LATER.  OTHERWISE "THE EXISTENCE OF THE
RIGHT TO APPEAL WOULD BE SUBJECT TO CONTINGENCIES WHICH NO DEGREE OF
DILIGENCE BY AN APPELLANT COULD CONTROL."  311 U.S. AT 582.  THAT
RESULT IS EVEN MORE PLAINLY INDICATED UNDER THE PRESENT STATUTE.  THE
TIETJEN & LANG NO. 2, 143 F.2D 711.  FOR WHERE, AS HERE, A STATUTE
MERELY REQUIRES THAT AN APPLICATION FOR AN APPEAL BE MADE WITHIN A
PRESCRIBED TIME, THE ALLOWANCE MAY BE GRANTED SUBSEQUENTLY.  CARDONA V.
QUINONES, 240 U.S. 83.  AFFIRMED. 

FN1  RULE 81(A)(1). 

FN2  WE THEREFORE HAVE A DIFFERENT QUESTION FROM THAT PRESENTED IN
RECONSTRUCTION FINANCE CORP. V. PRUDENCE GROUP, 311 U.S. 579, 582,
WHERE A NOTICE OF APPEAL WAS FILED IN THE DISTRICT COURT BUT THE APPEAL
HAD TO BE ALLOWED BY THE CIRCUIT COURT OF APPEALS. 

HERE THE APPEAL COULD BE ALLOWED EITHER BY THE TRIAL JUDGE OR BY A
JUDGE OF THE CIRCUIT COURT OF APPEALS.  ALASKA PACKERS ASSN. V.
PILLSBURY, SUPRA; MCCRONE V. UNITED STATES, 307 U.S. 61, 65; THE
TIETJEN & LANG NO. 2, 143 F.2D 711, 712; JUDICIAL CODE, SEC. 132, 28
U.S.C. SEC. 228. 
..END :


















SINGER V. UNITED STATES, 323 U.S. 338 


NO. 30.  ARGUED NOVEMBER 9, 10, 1944.  - DECIDED JANUARY 2, 1945.  - 141
F.2D 262, AFFIRMED. 


1.  THE CONSPIRACY CLAUSE OF SEC. 11 OF THE SELECTIVE TRAINING AND
SERVICE ACT OF 1940, 54 STAT. 885, IS NOT LIMITED TO CONSPIRACIES TO
"HINDER OR INTERFERE IN ANY WAY BY FORCE OR VIOLENCE" WITH THE
ADMINISTRATION OF THE ACT, BUT EMBRACES ALL CONSPIRACIES TO VIOLATE THE
ACT.  P. 340. 

2.  THE OFFENSE OF CONSPIRACY UNDER SEC. 11 OF THE SELECTIVE TRAINING
AND SERVICE ACT, UNLIKE THAT UNDER SEC. 37 OF THE CRIMINAL CODE, DOES
NOT REQUIRE AN OVERT ACT.  P. 340. 

3.  THE PRINCIPLE OF STRICT CONSTRUCTION DOES NOT REQUIRE THAT A
CRIMINAL STATUTE BE GIVEN ITS NARROWEST POSSIBLE MEANING.  P. 341. 

4.  WHERE ANOTHER INTERPRETATION IS PERMISSIBLE, A STATUTE SHOULD NOT
BE GIVEN A CONSTRUCTION WHICH MAKES IT REDUNDANT.  P. 344. 

5.  AS TO A PETITIONER WHO DIED SINCE THE GRANT OF A WRIT OF
CERTIORARI TO REVIEW A JUDGMENT OF CONVICTION, THE WRIT IS DISMISSED
AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR SUCH DISPOSITION AS
LAW AND JUSTICE REQUIRE.  P. 346. 

SINGER ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 322 U.S. 720, TO REVIEW THE AFFIRMANCE OF JUDGMENTS OF
CONVICTION FOR CONSPIRACY TO VIOLATE THE SELECTIVE TRAINING AND SERVICE
ACT.  SEE 49 F.SUPP.  912. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE FATHER AND SON.  THEY AND ONE WALTER WEEL WERE
INDICTED IN ONE COUNT CHARGING A CONSPIRACY TO AID WILLARD I. SINGER IN
EVADING SERVICE IN THE ARMED FORCES.  NO OVERT ACT WAS ALLEGED.  A
DEMURRER TO THE INDICTMENT WAS OVERRULED WHICH CLAIMED THAT AN OVERT
ACT WAS NECESSARY.  PETITIONERS WERE TRIED BEFORE A JURY, FOUND GUILTY
AND SENTENCED.  PETITIONER WILLARD I. SINGER RECEIVED A SENTENCE OF ONE
YEAR AND A DAY; PETITIONER MARTIN H. SINGER RECEIVED A SUSPENDED
SENTENCE AND WAS PLACED ON PROBATION FOR TWO YEARS.  MOTIONS IN ARREST
OF JUDGMENT AND FOR A NEW TRIAL WERE DENIED.  49 F.SUPP.  912.  THE
JUDGMENTS OF CONVICTION WERE AFFIRMED BY THE CIRCUIT COURT OF APPEALS. 
141 F.2D 262.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED, LIMITED TO THE QUESTION WHETHER THE CONSPIRACY
CHARGED CONSTITUTES AN OFFENSE UNDER SEC. 11 OF THE SELECTIVE TRAINING
AND SERVICE ACT OF 1940, 54 STAT. 885, 894-895, 50 U.S.C. APP. SEC.
311. 

THE RELEVANT PART OF SEC. 11 READS AS FOLLOWS: 

"ANY PERSON CHARGED AS HEREIN PROVIDED WITH THE DUTY OF CARRYING OUT
ANY OF THE PROVISIONS OF THIS ACT, OR THE RULES OR REGULATIONS MADE OR
DIRECTIONS GIVEN THEREUNDER, WHO SHALL KNOWINGLY FAIL OR NEGLECT TO
PERFORM SUCH DUTY, AND ANY PERSON CHARGED WITH SUCH DUTY, OR HAVING AND
EXERCISING ANY AUTHORITY UNDER SAID ACT, RULES, REGULATIONS, OR
DIRECTIONS WHO SHALL KNOWINGLY MAKE, OR BE A PARTY TO THE MAKING, OF
ANY FALSE, IMPROPER, OR INCORRECT REGISTRATION, CLASSIFICATION,
PHYSICAL OR MENTAL EXAMINATION, DEFERMENT, INDUCTION, ENROLLMENT, OR
MUSTER, AND ANY PERSON WHO SHALL KNOWINGLY MAKE, OR BE A PARTY TO THE
MAKING OF, ANY FALSE STATEMENT OR CERTIFICATE AS TO THE FITNESS OR
UNFITNESS OR LIABILITY OR NONLIABILITY OF HIMSELF OR ANY OTHER PERSON
FOR SERVICE UNDER THE PROVISIONS OF THIS ACT, OR RULES, REGULATIONS, OR
DIRECTIONS MADE PURSUANT THERETO, OR WHO OTHERWISE EVADES REGISTRATION
OR SERVICE IN THE LAND OR NAVAL FORCES OR ANY OF THE REQUIREMENTS OF
THIS ACT, OR WHO KNOWINGLY COUNSELS, AIDS, OR ABETS ANOTHER TO EVADE
REGISTRATION OR SERVICE IN THE LAND OR NAVAL FORCES OR ANY OF THE
REQUIREMENTS OF THIS ACT, OR OF SAID RULES, REGULATIONS, OR DIRECTIONS,
OR WHO IN ANY MANNER SHALL KNOWINGLY FAIL OR NEGLECT TO PERFORM ANY
DUTY REQUIRED OF HIM UNDER OR IN THE EXECUTION OF THIS ACT, OR RULES OR
REGULATIONS MADE PURSUANT TO THIS ACT, OR ANY PERSON OR PERSONS WHO
SHALL KNOWINGLY HINDER OR INTERFERE IN ANY WAY BY FORCE OR VIOLENCE
WITH THE ADMINISTRATION OF THIS ACT OR THE RULES OR REGULATIONS MADE
PURSUANT THERETO, OR CONSPIRE TO DO SO, SHALL, UPON CONVICTION IN THE
DISTRICT COURT OF THE UNITED STATES HAVING JURISDICTION THEREOF, 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  ..."  THE
IT PUNISHES CONSPIRACY "ON THE COMMON LAW FOOTING."  NASH V. UNITED
STATES, 229 U.S. 373, 378.  HENCE THE INDICTMENT IS SUFFICIENT IF THE
WORDS "OR CONSPIRE TO DO SO" EXTEND TO ALL CONSPIRACIES TO COMMIT
OFFENSES AGAINST THE ACT.  IT IS INSUFFICIENT IF THE CONSPIRACY CLAUSE
IS LIMITED TO CONSPIRACIES TO "HINDER OR INTERFERE IN ANY WAY BY FORCE
OR VIOLENCE" WITH THE ADMINISTRATION OF THE ACT.  IF IT IS SO LIMITED
THEN IT WOULD HAVE BEEN NECESSARY TO SUSTAIN THE INDICTMENT UNDER SEC.
37 OF THE CRIMINAL CODE, 18 U.S.C. SEC. 88, WHICH REQUIRES THE
COMMISSION OF AN OVERT ACT.  FN1  SEE UNITED STATES V. RABINOWICH, 238
U.S. 78, 86. 

THOUGH THE MATTER IS NOT FREE FROM DOUBT, WE THINK THE CONSPIRACY
CLAUSE OF SEC. 11 IS NOT LIMITED BUT EMBRACES ALL CONSPIRACIES TO
VIOLATE THE ACT.  THAT IS THE VIEW OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT (UNITED STATES V. O'CONNELL, 126, F.2D 807) AS WELL AS
THE COURT BELOW.  WE THINK THAT CONSTRUCTION IS GRAMMATICALLY
PERMISSIBLE AND CONFORMS WITH THE LEGISLATIVE SCHEME. 

SEVEN OFFENSES PRECEDE THE CONSPIRACY CLAUSE.  EACH IS SET OFF BY A
COMMA.  A COMMA ALSO PRECEDES THE CONSPIRACY CLAUSE AND SEPARATES IT
FROM THE FORCE AND VIOLENCE PROVISION JUST AS THE LATTER IS SEPARATED
BY A COMMA FROM THE CLAUSE WHICH PRECEDES IT.  THE PUNCTUATION OF THE
SENTENCE INDICATES THAT THE DISJUNCTIVE CONSPIRACY CLAUSE IS THE LAST
INDEPENDENT CLAUSE OF A SERIES NOT A PART OF THE PRECEDING CLAUSE.  A
SUBJECT OF "CONSPIRE" MUST BE SUPPLIED HOWEVER THE CONSPIRACY CLAUSE IS
READ.  IT IS TRUE THAT THE SUBJECT MUST BE PLURAL AND THAT THE SUBJECT
OF EACH OF THE PRECEDING CLAUSES IS SINGULAR EXCEPT "ANY PERSON OR
PERSONS" IN THE FORCE AND VIOLENCE CLAUSE.  BUT IT DOES NOT FOLLOW THAT
THE CONSPIRACY CLAUSE IS HITCHED SOLELY TO THE PRECEDING CLAUSE.  WHEN
READ AS APPLICABLE TO ALL THE SUBSTANTIVE OFFENSES, THE VERB "CONSPIRE"
IS PROPER SINCE SOME OF THE SUBJECTS WOULD BE SINGULAR AND SOME
PLURAL. 

A QUESTION REMAINS CONCERNING THE WORD "SO."  THE STRUCTURE OF THE
SENTENCE AS A WHOLE SUGGESTS THAT THE REFERENCE IS TO ALL THE OFFENSES
PREVIOUSLY ENUMERATED.  THE SEVEN OFFENSES WHICH PRECEDE THE CONSPIRACY
CLAUSE ARE SUBSTANTIVE OFFENSES.  EACH CARRIES THE SAME PENALTY AND IS
PUNISHABLE IN THE SAME MANNER.  THE CONSPIRACY CLAUSE COMES LAST AND IS
SEPARATED FROM THE PRECEDING ONE BY A COMMA.  IF THE WORD "SO" IS READ
RESTRICTIVELY, THEN ONE TYPE OF CONSPIRACY IS SET APART FOR SPECIAL
TREATMENT.  IF OUR CONSTRUCTION IS TAKEN, A RATIONAL SCHEME RESULTS
WITH THE SAME MAXIMUM PENALTIES THROUGHOUT - ALL TYPES OF CONSPIRACIES
BEING TREATED EQUALLY, JUST AS THE SUBSTANTIVE OFFENSES ARE TREATED
ALIKE.  NO PERSUASIVE REASON HAS BEEN ADVANCED WHY THE WORDS "CONSPIRE
TO DO SO" SHOULD NOT CARRY THEIR NATURAL SIGNIFICANCE.  THE PRINCIPLE
OF STRICT CONSTRUCTION OF CRIMINAL STATUTES DOES NOT MEAN THAT THEY
MUST BE GIVEN THEIR NARROWEST POSSIBLE MEANING.  UNITED STATES V.
GILES, 300 U.S. 41, 48. 

THE LEGISLATIVE HISTORY THROWS ONLY A LITTLE LIGHT ON THIS PROBLEM OF
THE CONSTRUCTION OF SEC. 11.  WHAT APPEARS IS A BRIEF STATEMENT BY
SENATOR SHEPPARD, CHAIRMAN OF THE SENATE COMMITTEE ON MILITARY AFFAIRS,
WHO EXPLAINED THE BILL ON THE FLOOR OF THE SENATE.  HE STATED THAT THE
PENALTY PROVISIONS OF THE BILL, WHICH ARE SUBSTANTIALLY THE SAME AS
THOSE OF THE WORLD WAR ACT.  EXPERIENCE WITH THE WORLD WAR PROVISIONS
SHOWS THAT THEY WORKED SATISFACTORILY IN PROVIDING THE NECESSARY
PROTECTION."  86 CONG. REC. 10095.  THE SELECTIVE DRAFT ACT OF 1917, 40
STAT. 76, 50 U.S.C. APP. SEC. 201 ET SEQ., CONTAINED NO CONSPIRACY
PROVISION.  AND THE PENALTIES PRESCRIBED FOR THE SUBSTANTIVE OFFENSES
WERE MILDER THAN THOSE CONTAINED IN THE PRESENT ACT.  FN2 CONSPIRACIES
TO COMMIT NONVIOLENT OFFENSES WERE PROSECUTED UNDER SEC. 37 OF THE
CRIMINAL CODE WHICH, AS WE HAVE NOTED, REQUIRES AN OVERT ACT.  FN3
CONSPIRACIES INVOLVING THE USE OF FORCE WERE PROSECUTED UNDER SEC. 6 OF
THE CRIMINAL CODE, 35 STAT. 1089, 18 U.S.C. SEC. 6, WHICH PUNISHES
CONSPIRACIES "BY FORCE TO PREVENT, HINDER, OR DELAY THE EXECUTION OF
ANY LAW OF THE UNITED STATES."  FN4  SEC. 37 OF THE CRIMINAL CODE
PROVIDES A PUNISHMENT OF NOT MORE THAN TWO YEARS' IMPRISONMENT OR A
FINE OF $10,000 OR BOTH.  SEC. 6 OF THE CRIMINAL CODE PROVIDES A
PUNISHMENT OF NOT MORE THAN SIX YEARS' IMPRISONMENT OR A $5,000 FINE,
OR BOTH.  SEC. 11 OF THE PRESENT ACT PROVIDES IMPRISONMENT FOR NOT MORE
THAN FIVE YEARS OR A FINE OF $10,000 OR BOTH.  BOTH SEC. 37 AND SEC. 6
OF THE CRIMINAL CODE WERE IN FORCE WHEN THE PRESENT ACT WAS ADOPTED. 

THE ADDITION OF THE CONSPIRACY CLAUSE OF SEC. 11 WAS A DEPARTURE FROM
THE 1917 ACT AND A SUBSTANTIAL DEPARTURE AT THAT.  MOREOVER, THE "WORLD
WAR PROVISIONS" WHICH, ACCORDING TO SENATOR SHEPPARD, HAD PROVIDED "THE
NECESSARY PROTECTION" WERE CERTAINLY NOT THE PROVISIONS OF THE 1917 ACT
ALONE BUT THE CONSPIRACY STATUTES AS WELL.  HENCE, WE DO NOT TAKE HIS
STATEMENT TO MEAN THAT THE PENALTY PROVISIONS OF SEC. 11 ARE
SUBSTANTIALLY THE SAME AS THOSE CONTAINED IN THE 1917 ACT.  WE READ HIS
SOMEWHAT AMBIGUOUS COMMENTS AS INDICATING THAT HE WAS COMPARING THE
PROVISIONS OF SEC. 11 WITH THE PROVISIONS OF THE 1917 ACT PLUS THE
PROVISIONS OF OTHER STATUTES WHICH WERE EMPLOYED IN ENFORCING THAT
ACT.  THUS SENATOR SHEPPARD'S STATEMENT SUGGESTS THAT SEC. 11 WAS
DESIGNED TO CATALOGUE THE VARIOUS OFFENSES AGAINST THE ACT.  FN5  IT
SUGGESTS THAT THE PURPOSE OF INCLUDING A CONSPIRACY CLAUSE IN SEC. 11
WAS TO FURNISH A SINGLE BASIS FOR PROSECUTING ALL CONSPIRACIES TO
COMMIT OFFENSES AGAINST THE ACT.  THAT RESULTS IN PUNISHMENTS FOR SOME
CONSPIRACIES BEING INCREASED.  BUT THERE WAS LIKEWISE AN INCREASE IN
THE PENALTIES FOR SUBSTANTIVE OFFENSES.  YET UNDER OUR INTERPRETATION
THE SANCTIONS PROVIDED BY SEC. 11 ARE SUBSTANTIALLY THE SAME AS THE SUM
OF THE VARIOUS SANCTIONS PROVIDED FOR THE ENFORCEMENT OF THE 1917 ACT. 

THE UNITED STATES SUGGESTS THAT IF THE CONSPIRACY CLAUSE OF SEC. 11
IS CONSTRUED SO AS TO APPLY ONLY TO CONSPIRACIES TO OBSTRUCT THE ACT BY
FORCE AND VIOLENCE IT WOULD MERELY DUPLICATE SEC. 6 OF THE CRIMINAL
CODE AND HAVE NO EFFECT EXCEPT TO DECREASE THE MAXIMUM IMPRISONMENT FOR
THE OFFENSE FROM SIX YEARS TO FIVE.  IT IS SAID IN REPLY, HOWEVER, THAT
UNDER THE EARLIER ACT IT WAS UNCERTAIN WHETHER CONSPIRACIES
CONTEMPLATING THE USE OF FORCE IN INTERFERING WITH ITS ADMINISTRATION
COULD BE PROSECUTED UNDER SEC. 6 OF THE CRIMINAL CODE.  CF. REEDER V.
UNITED STATES, 262 F. 36, WITH HAYWOOD V. UNITED STATES, 268 F. 795,
799.  AND IT IS ARGUED FROM THAT FACT THAT THE CONSPIRACY CLAUSE OF
SEC. 11 WAS ADDED TO DISPEL THE UNCERTAINTY.  THAT IS LEFT TO
CONJECTURE.  THOUGH WE ASSUME THAT IT WAS A REASON FOR ADDING A
CONSPIRACY CLAUSE TO SEC. 11, WE CANNOT CONCLUDE THAT THE CONSPIRACY
CLAUSE WHICH WAS FASHIONED IS SO LIMITED.  AND WHERE ANOTHER
INTERPRETATION IS WHOLLY PERMISSIBLE, WE WOULD BE RELUCTANT TO GIVE A
STATUTE THAT CONSTRUCTION WHICH MAKES IT WHOLLY REDUNDANT.  ONLY A
CLEAR LEGISLATIVE PURPOSE SHOULD LEAD TO THAT RESULT HERE. 

NOR DO WE FIND FORCE IN THE SUGGESTION THAT THE CONSPIRACY CLAUSE WAS
ADDED MERELY TO FILL IN GAPS LEFT BY SEC. 6 OF THE CRIMINAL CODE WHICH
COVERS ONLY CONSPIRACIES TO OBSTRUCT BY FORCE "THE EXECUTION OF ANY LAW
OF THE UNITED STATES."  IT IS SAID THAT UNITED STATES V. EATON, 144
U.S. 677, ESTABLISHED AS A PRINCIPLE OF FEDERAL CRIMINAL LAW THAT A
PROVISION WHICH ONLY PUNISHES VIOLATIONS OF A "LAW" DOES NOT COVER
VIOLATIONS OF RULES OR REGULATIONS MADE IN CONFORMITY WITH THAT LAW. 
IT IS THEREFORE ARGUED THAT SEC. 6 OF THE CRIMINAL CODE DOES NOT
EMBRACE VIOLATIONS OF RULES OR REGULATIONS AND THAT SEC. 11 FILLED THAT
GAP BY ADDING "RULES OR REGULATIONS" TO THE FORCE AND VIOLENCE CLAUSE. 
HERE AGAIN THE LEGISLATIVE HISTORY LEAVES THAT QUESTION WHOLLY TO
CONJECTURE.  UNITED STATES V. EATON TURNED ON ITS SPECIAL FACTS, AS
UNITED STATES V. GRIMAUD, 220 U.S. 506, 518-519, EMPHASIZES.  IT HAS
NOT BEEN CONSTRUED TO STATE A FIXED PRINCIPLE THAT A REGULATION CAN
NEVER BE A "LAW" FOR PURPOSES OF CRIMINAL PROSECUTIONS.  IT MAY OR MAY
NOT BE, DEPENDING ON THE STRUCTURE OF THE PARTICULAR STATUTE.  THE
EATON CASE INVOLVED A STATUTE WHICH LEVIED A TAX ON OLEOMARGARINE AND
REGULATED IN DETAIL OLEOMARGARINE MANUFACTURERS.  SEC. 5 OF THE STATUTE
PROVIDED FOR THE KEEPING OF SUCH BOOKS AND RECORDS AS THE SECRETARY OF
THE TREASURY MIGHT REQUIRE.  BUT IT PROVIDED NO PENALTY FOR NON
COMPLIANCE.  OTHER SECTIONS, HOWEVER, LAID DOWN OTHER REQUIREMENTS FOR
MANUFACTURERS AND PRESCRIBED PENALTIES FOR VIOLATIONS.  SEC. 20 GAVE
THE SECRETARY THE POWER TO MAKE "ALL NEEDFUL REGULATIONS" FOR ENFORCING
THE ACT.  A REGULATION WAS PROMULGATED UNDER SEC. 20 REQUIRING
WHOLESALERS TO KEEP A PRESCRIBED RECORD.  THE PROSECUTION WAS FOR NON
COMPLIANCE WITH THAT REGULATION.  SEC. 18 IMPOSED CRIMINAL PENALTIES
FOR FAILURE TO DO ANY OF THE THINGS "REQUIRED BY LAW."  THE COURT HELD
THAT THE VIOLATION OF THE REGULATION PROMULGATED UNDER SEC. 20 WAS NOT
AN OFFENSE.  IT REASONED THAT SINCE CONGRESS HAD PRESCRIBED PENALTIES
FOR CERTAIN ACTS BUT NOT FOR THE FAILURE TO KEEP BOOKS THE OMISSION
COULD NOT BE SUPPLIED BY REGULATION.  AND CONGRESS HAD NOT ADDED
CRIMINAL SANCTIONS TO THE RULES PROMULGATED UNDER SEC. 20 OF THAT ACT. 
THE SITUATION HERE IS QUITE DIFFERENT.  SEC. 11 OF THE PRESENT ACT
MAKES IT A CRIME TO DO SPECIFIED ACTS, EITHER BY WAY OF OMISSION OR
COMMISSION, IN VIOLATION OF THE ACT OR THE RULES OR REGULATIONS ISSUED
UNDER IT.  THUS IT IS A FELONY FOR A PERSON TO "FAIL OR NEGLECT TO
PERFORM ANY DUTY REQUIRED OF HIM UNDER OR IN THE EXECUTION OF THIS ACT,
OR RULES OR REGULATIONS MADE PURSUANT TO THIS ACT."  SEC. 11 IS
THEREFORE A LAW OF THE UNITED STATES WHICH IMPOSES CRIMINAL SANCTIONS
FOR DISOBEDIENCE OF THE SELECTIVE SERVICE REGULATIONS.  SINCE CONGRESS
HAS MADE THE VIOLATION OF REGULATIONS A FELONY, IT CAN HARDLY BE
CONTENDED THAT THOSE REGULATIONS ARE NOT A "LAW" FOR THE PURPOSES OF
SEC. 6 OF THE CRIMINAL CODE.  BUT THOUGH WE ASSUME THAT UNITED STATES
V. EATON WAS A REASON FOR ADDING A CONSPIRACY CLAUSE TO SEC. 11, WE
CANNOT ASSUME THAT THE ONE WHICH WAS ADDED HAD THE NARROW SCOPE
SUGGESTED.  WHATEVER THE REASON, WORDS MEAN WHAT THEY SAY.  AND IF WE
GIVE THE WORDS "CONSPIRE TO DO SO" THEIR NATURAL MEANING, WE DO NOT
MAKE THE ACT A TRAP FOR THE INNOCENT.    WE HAVE BEEN ADVISED THAT
MARTIN H. SINGER DIED ON OCTOBER 1, 1944.  THE WRIT IS ACCORDINGLY
DISMISSED AS TO HIM (MENKEN V. ATLANTA, 131 U.S. 405; UNITED STATES V.
JOHNSON, 319 U.S. 503, 520) AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR SUCH DISPOSITION AS LAW AND JUSTICE REQUIRE.  UNITED STATES
V. POMEROY, 152 F. 279, REV'D 164 F. 324; UNITED STATES V. DUNNE, 173
F. 254. 

THE JUDGMENT AS RESPECTS WILLARD I. SINGER IS AFFIRMED. 

FN1  THAT SECTION PROVIDES: 

"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." 

FN2  THE 1917 ACT PUNISHED VARIOUS SUBSTANTIVE OFFENSES OF THE KIND
COVERED BY SEC. 11 OF THE PRESENT ACT BY IMPRISONMENT FOR NOT MORE THAN
ONE YEAR.  SEE SECS. 5 AND 6. 

FN3  SEE UNITED STATES V. MCHUGH, 253 F. 224; ANDERSON V. UNITED
STATES, 269 F. 65; O'CONNELL V. UNITED STATES, 253 U.S. 142; GOLDMAN V.
UNITED STATES, 245 U.S. 474. 

FN4 SEE ENFIELD V. UNITED STATES, 261 F. 141; REEDER V. UNITED
STATES, 262 F. 36.  BUT SEE HAYWOOD V. UNITED STATES, 268 F. 795. 

CONSPIRACIES WERE ALSO PROSECUTED UNDER SEC. 4 OF THE ESPIONAGE ACT
OF JUNE 15, 1917, 40 STAT. 217, 219, 41 STAT. 1359, 50 U.S.C. SEC. 34,
WHICH LIKE SEC. 37 OF THE CRIMINAL CODE REQUIRES AN OVERT ACT.  SEE
FROHWERK V. UNITED STATES, 249 U.S. 204; PIERCE V. UNITED STATES, 252
U.S. 239.  BUT THAT SECTION IS APPLICABLE ONLY IN TIME OF WAR AND HENCE
WAS NOT OPERATIVE WHEN THE PRESENT ACT BECAME THE LAW ON SEPTEMBER 16,
1940. 

FN5  WHETHER, AS ASSUMED IN UNITED STATES V. OFFUTT, 127 F.2D 336,
THERE MAY BE CONSPIRACIES TO VIOLATE SEC. 11 WHICH CAN STILL BE
PROSECUTED UNDER SEC. 37 OF THE CRIMINAL CODE IS A QUESTION WE DO NOT
REACH. 

IF ONLY ONE OF THE STATUTES IS APPLICABLE TO A CONSPIRACY TO VIOLATE
SEC. 11, THE LATTER UNDER WHICH PETITIONERS WERE CONVICTED IS
CONTROLLING, AS IT IS A LATER STATUTE PRESCRIBING PRECISE PENALTIES FOR
SPECIFIED OFFENSES.  CALLAHAN V. UNITED STATES, 285 U.S. 515, 518. 

MR. JUSTICE FRANKFURTER, DISSENTING. 

IN THE PAST, TO SOFTEN THE UNDUE RIGORS OF THE CRIMINAL LAW, COURTS
FREQUENTLY EMPLOYED CANONS OF ARTIFICIAL CONSTRUCTION TO RESTRICT THE
TRANSPARENT SCOPE OF CRIMINAL STATUTES.  I AM NO FRIEND OF SUCH
ARTIFICIALLY RESTRICTIVE INTERPRETATIONS.  CRIMINAL STATUTES SHOULD BE
GIVEN THE MEANING THAT THEIR LANGUAGE MOST OBVIOUSLY INVITES UNLESS
AUTHORITATIVE LEGISLATIVE HISTORY OR ABSURD CONSEQUENCES PRECLUDE SUCH
NATURAL MEANING.  THERE ARE SURELY DEEP CONSIDERATIONS OF POLICY WHY
THE SCOPE OF CRIMINAL CONDEMNATION SHOULD NOT BE EXTENDED BY A STRAINED
READING.  THE NATURAL READING OF THE CONSPIRACY PROVISION OF SEC. 11 OF
THE SELECTIVE SERVICE ACT OF 1940  FN1  CONFINES ITS APPLICATION TO THE
IMMEDIATELY PRECEDING CLAUSE WHICH PUNISHES "ANY PERSON OR PERSONS WHO
SHALL KNOWINGLY HINDER OR INTERFERE IN ANY WAY BY FORCE OR VIOLENCE
WITH THE ADMINISTRATION OF THIS ACT OR THE RULES OR REGULATIONS MADE
PURSUANT THERETO."  SINCE NO ABSURD CONSEQUENCES PRECLUDE THE INDICATED
NATURAL READING OF THIS CRIMINAL STATUTE AND SINCE ALL AVAILABLE
EXTRANEOUS AIDS CONFIRM THE RENDERING WHICH THE TEXT INVITES, I THINK
IT SHOULD BE GIVEN IT. 

IT IS DIFFICULT FOR ME TO BELIEVE THAT IF ONE WERE READING SEC. 11
WITHOUT CONSCIOUSNESS OF THE PROBLEM NOW BEFORE US AND MERELY AS A
MATTER OF ENGLISH ONE WOULD MAKE THE "SO" IN THE PHRASE "CONSPIRE TO DO
SO" RELATE BACK TO ALL THAT IS CONTAINED IN THE TWENTY-TWO PRECEDING
LINES RATHER THAN TO THE "FORCE OR VIOLENCE" CLAUSE IMMEDIATELY
PRECEDING.  THE STRUCTURE OF THE SENTENCE, GRAMMAR, AND CLARITY OF
EXPRESSION COMBINE TO ATTRIBUTE TO THE PHRASE "TO DO SO" A LIMITED
REFERENCE INSTEAD OF MAKING "SO" CARRY THE BURDEN OF THE WHOLE
PARAGRAPH AS ANTECEDENT.  GOOD SENSE REINFORCES THESE TEXTUAL
CONSIDERATIONS.  IT IS MADE AN OFFENSE TO CONSPIRE TO VIOLATE NOT ONLY
THE SEVEN SUBSTANTIVE OFFENSES ENUMERATED BY CONGRESS BUT ALSO THE
MULTITUDINOUS "RULES AND REGULATIONS."  THERE IS AN OBVIOUS DIFFERENCE
BETWEEN CONSPIRACIES TO VIOLATE BY FORCE AND VIOLENCE ANY RULE ISSUED
UNDER THE ACT AND A MERE UNEXECUTED ARRANGEMENT BETWEEN TWO PEOPLE
PEACEFULLY TO ESCAPE ONE OF SUCH RULES. 

ALL EXTRANEOUS AIDS CONFIRM RATHER THAN CONTRADICT THIS CONSTRUCTION. 

THE ONLY AUTHORITATIVE LEGISLATIVE COMMENTARY WE HAVE ON SEC. 11 IS
THE STATEMENT BY SENATOR SHEPPARD, CHAIRMAN OF THE COMMITTEE ON
MILITARY AFFAIRS, IN A FORMAL SPEECH EXPOUNDING THE VARIOUS PROVISIONS
OF THE ACT.  THERE IS EVERY REASON TO BELIEVE THAT SENATOR SHEPPARD'S
SPEECH HAD BEHIND IT THE AUTHORITY OF THOSE WHO FRAMED THIS LEGISLATION
AND WHO WERE COGNIZANT OF THE PRIOR LEGISLATION UPON WHICH THEY WERE
BUILDING.  SENATOR SHEPPARD STATED THAT SEC. 11 "CONTAINS THE PENALTY
PROVISIONS OF THE BILL, WHICH ARE SUBSTANTIALLY THE SAME AS THOSE OF
THE WORLD WAR ACT.  EXPERIENCE WITH THE WORLD WAR PROVISIONS SHOWS THAT
THEY WORKED SATISFACTORILY IN PROVIDING THE NECESSARY PROTECTION."  86
CONG. REC. 10095.  IT IS TO BE NOTED THAT SENATOR SHEPPARD SPOKE OF THE
"WORLD WAR PROVISIONS" AND THEREBY EVIDENTLY HAD IN MIND THE VARIOUS
ENACTMENTS AVAILABLE FOR DEALING WITH INTERFERENCES WITH THE RAISING OF
AN ARMY. 

IN ITS ARSENAL OF PUNISHMENT THE GOVERNMENT HAD PROVISIONS DEALING
SPECIFICALLY WITH CONSPIRACIES AFFECTING THE RECRUITING OF AN ARMY AS
WELL AS THE ALL-COMPREHENDING CONSPIRACY STATUTE OUTLAWING CONSPIRACIES
TO COMMIT ANY OFFENSE AGAINST THE UNITED STATES - AN OLD ENACTMENT
KNOWN TO EVERY TYRO OF FEDERAL LAW SINCE RECONSTRUCTION DAYS (R.S. SEC.
5440, ACT OF MARCH 2, 1867).  WHAT THEN WERE THE SPECIFIC CONSPIRACY
PROVISIONS WHICH WERE "SUBSTANTIALLY" DRAWN UPON FOR THIS WAR FROM THE
LEGISLATION OF THE FIRST WORLD WAR?  (A) SECTION 6 OF THE CRIMINAL
CODE, 18 U.S.C. SEC. 6, PUNISHED CONSPIRACIES "BY FORCE TO PREVENT,
HINDER, OR DELAY THE EXECUTION OF ANY LAW OF THE UNITED STATES  ..." 
WITH A FINE OF $5,000 OR IMPRISONMENT FOR SIX YEARS OR BOTH.  NO OVERT
ACT WAS REQUIRED FOR PROSECUTION FOR THIS CONSPIRACY.  (B) SECTION 4 OF
THE ESPIONAGE ACT, 40 STAT. 217, 219, 50 U.S.C. SEC. 34, OUTLAWED
CONSPIRACIES TO VIOLATE SECS. 2 AND 3 OF THE ESPIONAGE ACT, TO BE
PUNISHED BY A FINE OF $10,000, IMPRISONMENT FOR TWENTY YEARS OR BOTH. 
BUT WAS NOT, HOWEVER, OPERATIVE WHEN THE SELECTIVE SERVICE ACT WAS
ENACTED BECAUSE IT APPLIES ONLY "WHEN THE UNITED STATES IS AT WAR." 

IF THE CONSPIRACY CLAUSE IN SEC. 11 IS CONFINED TO OFFENSES INVOLVING
FORCE OR VIOLENCE, THE PROVISIONS AS TO CONSPIRACY REMAIN SUBSTANTIALLY
THE SAME UNDER THE 1940 ACT AS THEY WERE DURING THE LAST WAR. 
CONSPIRACIES TO COMMIT NONVIOLENT OFFENSES - THAT IS, CONSPIRACIES TO
COMMIT THE RANGE OF SUBSTANTIVE OFFENSES, SOME OF THEM RATHER MINOR IN
CHARACTER, CONTAINED IN SEC. 11 - ARE OF COURSE STILL PUNISHABLE UNDER
THE GENERAL CONSPIRACY PROVISION, TO WIT SEC. 37 OF THE CRIMINAL CODE,
AS WAS THE SITUATION DURING THE LAST WAR.  OFFENSES OF VIOLENCE WHICH
FELL WITHIN SEC. 6 OF THE CRIMINAL CODE IN 1917 ARE NOW INCLUDED WITHIN
SEC. 11, NEITHER OF WHICH REQUIRES AN OVERT ACT.  THE PUNISHMENT FOR
THESE CONSPIRACIES OF VIOLENCE IS SUBSTANTIALLY SIMILAR - A $5,000 FINE
AND SIX YEARS IMPRISONMENT UNDER SEC. 6 AND A $10,000 FINE AND FIVE
YEARS IMPRISONMENT UNDER SEC. 11.  SENATOR SHEPPARD'S DESIRE FOR
PENALTIES "WHICH ARE SUBSTANTIALLY THE SAME AS  ...  THE WORLD WAR
PROVISIONS" WOULD THUS APPEAR TO BE ACCOMPLISHED. 

BUT THE GOVERNMENT URGES THAT IF SEC. 11 OF THE 1940 ACT MERELY HITS
A CONSPIRACY TO DO AN ACT OF VIOLENCE, THE CONSPIRACY CLAUSE WILL BE
REDUNDANT IN THAT IT WILL ACCOMPLISH NOTHING EXCEPT TO INCREASE THE
LIMIT OF THE FINE FROM $5,000 TO $10,000 AND TO DECREASE THE ALLOWABLE
IMPRISONMENT FROM SIX YEARS TO FIVE YEARS.  THIS ARGUMENT WHOLLY
OVERLOOKS TWO IMPORTANT CHANGES EFFECTED BY THE CONSPIRACY PROVISION OF
THE 1940 ACT.  THE CASES HAD RAISED DOUBT WHETHER SEC. 6 OF THE
CRIMINAL CODE WAS PROPERLY APPLICABLE TO CONSPIRACIES TO VIOLATE BY
FORCE THE DRAFT ACT.  COMPARE REEDER V. UNITED STATES, 262 F. 36, CERT.
DENIED, 252 U.S. 581, WITH HAYWOOD V. UNITED STATES, 268 F. 795, 799,
CERT. DENIED, 256 U.S. 689.  BY SPECIFIC INCLUSION OF A CONSPIRACY
PROVISION IN THE SELECTIVE SERVICE ACT, INSTEAD OF LEAVING IT TO THE
GENERALITY OF SEC. 6 OF THE CRIMINAL CODE, THE DOUBT WAS COMPLETELY
ELIMINATED.  THAT IN ITSELF SAVES THE CONSPIRACY PROVISION FROM MERE
REDUNDANCY, FOR IT GIVES IT, AS A MATTER OF LAW ENFORCEMENT, AN
IMPORTANT FUNCTION. 

THE GOVERNMENT ALSO FAILS TO TAKE INTO ACCOUNT THAT THE CONSPIRACY
PROVISION OF SEC. 11 ADDED CONSIDERABLY TO THE SCOPE OF SEC. 6 - THAT
THE NET OF SEC. 11 WOULD CATCH MANY OFFENDERS LEFT FREE BY SEC. 6 OF
THE CRIMINAL CODE.  THE LATTER MERELY REACHES CONSPIRACIES TO OBSTRUCT
BY FORCE THE OPERATION OF "ANY LAW OF THE UNITED STATES."  FOR MORE
THAN HALF A CENTURY, EVER SINCE UNITED STATES V. EATON, 144 U.S. 677,
IT HAS BEEN THE SETTLED PRINCIPLE OF FEDERAL CRIMINAL LAW THAT A
PROVISION MERELY PUNISHING VIOLATION OF A "LAW" DOES NOT COVER
VIOLATIONS OF RULES OR REGULATIONS MADE IN CONFORMITY WITH THAT LAW. 
SEE UNITED STATES V. GRIMAUD, 220 U.S. 506, 518-519.  SECTION 6,
THEREFORE, DOES NOT COVER VIOLATIONS OF RULES OR REGULATIONS.  SECTION
11 OF THE 1940 ACT MADE AN IMPORTANT ADDITION IN THAT IT PUNISHES
CONSPIRACIES TO INTERFERE FORCIBLY NOT MERELY "WITH THE ADMINISTRATION
OF THIS ACT" BUT ALSO WITH "THE RULES OR REGULATIONS MADE PURSUANT
THERETO." 

UNITED STATES V. EATON IS NOT A JUDICIAL SPORT.  IT IS THE
APPLICATION OF A PRINCIPLE WHICH HAS BEEN UNDEVIATINGLY APPLIED BY THIS
COURT - MOST RECENTLY IN VIERECK V. UNITED STATES, 318 U.S. 236, 241 -
AND UPON THE BASIS OF WHICH CONGRESS LEGISLATES.  IN RE KOLLOCK, 165
U.S. 526; UNITED STATES V. GRIMAUD, SUPRA; UNITED STATES V. GEORGE, 228
U.S. 14.  THE PRINCIPLE IS THAT A CRIME IS DEFINED BY CONGRESS, NOT BY
AN EXECUTIVE AGENCY.  SEE UNITED STATES V. SMULL, 236 U.S. 405, 409. 
"WHERE THE CHARGE IS OF CRIME, IT MUST HAVE CLEAR LEGISLATIVE BASIS." 
UNITED STATES V. GEORGE, SUPRA, AT 22.  IT IS ONLY WHEN CONGRESS IN
ADVANCE PRESCRIBES CRIMINAL SANCTIONS FOR VIOLATIONS OF AUTHORIZED
RULES THAT VIOLATIONS OF SUCH RULES CAN BE PUNISHED AS CRIMES.  IT IS
THIS FAR-REACHING DISTINCTION WHICH, IT WAS POINTED OUT IN THE GRIMAUD
CASE, PUT ON ONE SIDE THE DOCTRINE OF THE EATON CASE, WHERE VIOLATION
OF RULES AND REGULATIONS WAS NOT MADE CRIMINAL, AND ON THE OTHER SIDE
LEGISLATION SUCH AS THAT ENFORCED IN THE GRIMAUD CASE WHERE CONGRESS
SPECIFICALLY PROVIDED THAT "ANY VIOLATION OF THE PROVISIONS OF THIS ACT
OR SUCH RULES AND REGULATIONS (OF THE SECRETARY OF AGRICULTURE) SHALL
BE PUNISHED."  UNITED STATES V. GRIMAUD, SUPRA, AT 515.  CONGRESS
CONSCIOUSLY GAVE AN EFFECT TO THE CONSPIRACY CLAUSE OF SEC. 11 WHICH IS
ABSENT FROM THAT OF SEC. 6 OF THE CRIMINAL CODE. 

THERE IS ANOTHER STRONG GROUND FOR CONCLUDING THAT THE DRAFTSMEN OF
THE SELECTIVE SERVICE ACT DID NOT INTEND BY ITS DUBIOUS LANGUAGE TO
EXTEND THE CONSPIRACY PROVISION BEYOND VIOLENT ATTEMPTS AND TO SWEEP
INTO THIS CLAUSE ALL CONSPIRACIES TO VIOLATE THE ACT OR ANY OF ITS
REGULATIONS.  WHENEVER CONGRESS DESIRES TO MAKE A CONSPIRACY PROVISION
APPLY TO A WHOLE SERIES OF SUBSTANTIVE OFFENSES, IT DOES SO
EXPLICITLY.  EITHER THE CONSPIRACY PROVISION IS SET OFF IN A SEPARATE
ELSE CLEAR WORDS OF REFERENCE TO "ANY PROVISION" OR "ANY OF THE ACTS
MADE UNLAWFUL" ARE EMPLOYED.  SEE NATIONAL STOLEN PROPERTY ACT, SEC. 7,
53 STAT. 1178, 1179, 18 U.S.C. SEC. 418A; FARM CREDIT ACT, SEC. 64(F),
48 STAT. 257, 269, 12 U.S.C. SEC. 1138(F); SHERMAN ACT, SECS. 1-3, 26
STAT. 209, AS AMENDED, 15 U.S.C. SECS. 1-3; ACT OF JULY 31, 1861, R.S.
SEC. 1980, 8 U.S.C. SEC. 47.  THE ABSENCE OF SUCH EXPLICITNESS IN THE
SELECTIVE SERVICE ACT IS A STRONG INDICATION THAT NO SUCH SWEEPING
SCOPE WAS INTENDED. 

A STATUTE DEFINING SPECIFIC CRIMES PRESENTS TO COURTS A VERY
DIFFERENT DUTY OF CONSTRUCTION THAN DO REGULATORY ENACTMENTS WHEREIN
CONGRESS RECITES A BROAD POLICY IN LIGHT OF WHICH THE SPECIFIC
PROVISIONS OF THE REGULATORY SCHEME MUST BE CONSTRUED.  IN THE LATTER
SITUATION, A PARTICULAR PROVISION OF A STATUTE DERIVES MEANING FROM THE
BROAD POLICY EXPRESSED.  SEE PHELPS DODGE CORP. V. LABOR BOARD, 313
U.S. 177, 194.  IN A CRIMINAL STATUTE LIKE THE ONE NOW UNDER REVIEW
LANGUAGE DEFINING THE CRIME IS SELF-CONTAINED - THERE IS NO BACKGROUND
OF BROAD POLICY TO GUIDE THE DUTY OF GIVING SUCH LANGUAGE ITS EASY,
MOST NATURAL MEANING. 

IN THE PAST, DECISIONS UNDOUBTEDLY WORKED HARD TO NARROW THE SCOPE OF
A CRIMINAL STATUTE.  IT IS AGAINST THE WHOLE TENOR OF READING A
CRIMINAL STATUTE TO WORK HARD TO GIVE IT THE BROADEST POSSIBLE SCOPE. 
THE RESPONSIBILITY OF CONGRESS FOR MANIFESTING ITS WILL IS ILL SERVED
BY EASY-GOING JUDICIAL CONSTRUCTION OF CRIMINAL STATUTES. 

THESE VIEWS CALL FOR REVERSAL OF THE JUDGMENT. 

FN1  54 STAT. 885, 894, 50 U.S.C. APP. SEC. 311.  "ANY PERSON CHARGED
AS HEREIN PROVIDED WITH THE DUTY OF CARRYING OUT ANY OF THE PROVISIONS
OF THIS ACT, OR THE RULES OR REGULATIONS MADE OR DIRECTIONS GIVEN
THEREUNDER, WHO SHALL KNOWINGLY FAIL OR NEGLECT TO PERFORM SUCH DUTY,
AND ANY PERSON CHARGED WITH SUCH DUTY, OR HAVING AND EXERCISING ANY
AUTHORITY UNDER SAID ACT, RULES, REGULATIONS, OR DIRECTIONS WHO SHALL
KNOWINGLY MAKE, OR BE A PARTY TO THE MAKING, OF ANY FALSE, IMPROPER, OR
INCORRECT REGISTRATION, CLASSIFICATION, PHYSICAL OR MENTAL EXAMINATION,
DEFERMENT, INDUCTION, ENROLLMENT, OR MUSTER, AND ANY PERSON WHO SHALL
KNOWINGLY MAKE, OR BE A PARTY TO THE MAKING OF, ANY FALSE STATEMENT OR
CERTIFICATE AS TO THE FITNESS OR UNFITNESS OR LIABILITY OR NONLIABILITY
OF HIMSELF OR ANY OTHER PERSON FOR SERVICE UNDER THE PROVISIONS OF THIS
ACT, OR RULES, REGULATIONS, OR DIRECTIONS MADE PURSUANT THERETO, OR WHO
OTHERWISE EVADES REGISTRATION OR SERVICE IN THE LAND OR NAVAL FORCES OR
ANY OF THE REQUIREMENTS OF THIS ACT, OR WHO KNOWINGLY COUNSELS, AIDS,
OR ABETS ANOTHER TO EVADE REGISTRATION OR SERVICE IN THE LAND OR NAVAL
FORCES OR ANY OF THE REQUIREMENTS OF THIS ACT, OR OF SAID RULES,
REGULATIONS, OR DIRECTIONS, OR WHO IN ANY MANNER SHALL KNOWINGLY FAIL
OR NEGLECT TO PERFORM ANY DUTY REQUIRED OF HIM UNDER OR IN THE
EXECUTION OF THIS ACT, OR RULES OR REGULATIONS MADE PURSUANT TO THIS
ACT, OR ANY PERSON OR PERSONS WHO SHALL KNOWINGLY HINDER OR INTERFERE
IN ANY WAY BY FORCE OR VIOLENCE WITH THE ADMINISTRATION OF THIS ACT OR
THE RULES OR REGULATIONS MADE PURSUANT THERETO, OR CONSPIRE TO DO SO,
SHALL, UPON CONVICTION IN THE DISTRICT COURT OF THE UNITED STATES
HAVING JURISDICTION THEREOF, 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  ..." 

MR. JUSTICE ROBERTS, MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE JOIN
IN THIS DISSENT. 
..END :

















UNITED STATES V. WADDILL CO., 323 U.S. 353 


NO. 65.  ARGUED NOVEMBER 10, 1944.  - DECIDED JANUARY 2, 1945.  - 182
VA. 351, 28 S.E.2D 741, REVERSED. 


1.  UNDER R.S. SEC. 3466, CLAIMS OF THE UNITED STATES AGAINST AN
INSOLVENT DEBTOR WHO HAS MADE AN ASSIGNMENT FOR THE BENEFIT OF
CREDITORS, HELD ENTITLED TO PRIORITY OVER LIENS HERE ASSERTED UNDER
VIRGINIA LAW BY A LANDLORD FOR RENT AND BY A MUNICIPALITY FOR TAXES. 
P. 355. 

2.  WHETHER A LIEN CREATED BY STATE STATUTE IS OF SUCH CHARACTER AS
TO BRING IT WITHIN A CLAIMED EXCEPTION TO THE PRIORITY OF THE UNITED
STATES UNDER R.S. SEC. 3466 IS A FEDERAL QUESTION.  P. 356. 

UNITED STATES V. WADDILL, HOLLAND & FLINN, INC. ET AL. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

CERTIORARI, 322 U.S. 722, TO REVIEW THE AFFIRMANCE OF A DECREE
DETERMINING THE PRIORITY OF PAYMENT OF CLAIMS OF CREDITORS. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE ISSUE HERE IS WHETHER, IN A STATE PROCEEDING UNDER A GENERAL
ASSIGNMENT FOR BENEFIT OF CREDITORS, SECTION 3466 OF THE REVISED
STATUTES, 31 U.S.C. SEC. 191, GIVES PRIORITY TO A CLAIM OF THE UNITED
STATES OVER A LANDLORD'S LIEN AND A MUNICIPAL TAX LIEN. 

MRS. OELAND ROMAN, THE ASSIGNOR, OPERATED A RESTAURANT IN DANVILLE,
VIRGINIA, ON PREMISES LEASED FROM RESPONDENT WADDILL, HOLLAND & FLINN,
INC. ON JUNE 19, 1941, SHE EXECUTED A GENERAL DEED OF ASSIGNMENT TO A
TRUSTEE FOR THE BENEFIT OF CREDITORS, SPECIFICALLY CONVEYING ALL
PERSONAL PROPERTY, FIXTURES AND EQUIPMENT USED BY HER IN THE CONDUCT OF
THE RESTAURANT AND LOCATED ON THE PREMISES.  THIS PROPERTY REMAINED ON
THE PREMISES UNTIL SOLD BY THE TRUSTEE ON JULY 12, 1941.  AFTER
DEDUCTION OF APPROPRIATE ADMINISTRATIVE EXPENSES, A SUM OF $1,407.29
REMAINED.  FOUR CREDITORS CLAIMED PRIORITY OF PAYMENT FROM THIS
AMOUNT. 

(1)  THE UNITED STATES CLAIMED THE SUM OF $1,559.63, PLUS INTEREST,
REPRESENTING CERTAIN UNPAID FEDERAL UNEMPLOYMENT COMPENSATION TAXES AND
A DEBT ARISING OUT OF A FEDERAL HOUSING ADMINISTRATION TRANSACTION. 

(2)  THE VIRGINIA UNEMPLOYMENT COMPENSATION COMMISSION MADE A TAX
CLAIM OF $66.38, PLUS INTEREST.  THE COMMISSION'S CLAIM, HOWEVER, WAS
CONCEDED TO BE SUBORDINATE TO THAT OF THE UNITED STATES AND NEED NOT BE
FURTHER CONSIDERED HERE. 

(3)  THE CITY OF DANVILLE CLAIMED $300.55 AS PERSONAL PROPERTY TAXES
STILL UNPAID.  ON JULY 2, 1941, THE CITY COLLECTOR DISTRAINED ON ALL OF
THE PROPERTY ON THE LEASED PREMISES. 

(4)  THE LANDLORD, WADDILL, HOLLAND & FLINN, INC., CLAIMED $1,500.00
FOR SIX MONTHS' RENT DUE AND TO BECOME DUE.  THE ASSIGNOR'S LEASE FROM
THIS FIRM RAN FOR FIVE YEARS BEGINNING JANUARY 1, 1937, AT A MONTHLY
RENTAL OF $250.00.  ON JULY 1, 1941, TWELVE DAYS AFTER THE DEED OF
ASSIGNMENT WAS EXECUTED, THE FIRM OBTAINED THE ISSUANCE OF A DISTRESS
WARRANT FOR 3 2/5 MONTHS' PAST DUE RENT AND AN ATTACHMENT FOR 2 3/5
MONTHS' FUTURE INSTALLMENTS OF RENT.  ON THE SAME DAY, THE FIRM LEVIED
THE WARRANT AND ATTACHMENT ON THE ASSIGNOR'S PROPERTY LOCATED ON THE
LEASED PREMISES. 

THE TRUSTEE UNDER THE GENERAL ASSIGNMENT FILED A PETITION IN THE
CORPORATION COURT OF DANVILLE, RECITING THE VARIOUS CLAIMS AND
REQUESTING ADVICE AS TO THE PROPER DISTRIBUTION.  THAT COURT HELD THAT
THE LANDLORD WAS ENTITLED TO PRIORITY IN PAYMENT OVER THE CLAIMS OF THE
UNITED STATES AND THE VIRGINIA UNEMPLOYMENT COMPENSATION COMMISSION BUT
THAT ITS CLAIM WAS SUBORDINATE TO THAT OF THE CITY OF DANVILLE FOR
TAXES IN THE SUM OF $222.31.  ON APPEAL BY THE UNITED STATES, THE
SUPREME COURT OF APPEALS OF VIRGINIA AFFIRMED THIS ORDER OF
DISTRIBUTION.  182 VA. 351, 28 S.E.2D 741.  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE PROBLEMS RAISED AND BECAUSE OF
ASSERTED CONFLICT WITH THIS COURT'S DECISIONS IN NEW YORK V. MACLAY,
288 U.S. 290, AND UNITED STATES V. TEXAS, 314 U.S. 480. 

"THE DEBTS DUE TO THE UNITED STATES SHALL BE FIRST SATISFIED" WHENEVER
ANY PERSON INDEBTED TO THE UNITED STATES IS INSOLVENT OR, "NOT HAVING
SUFFICIENT PROPERTY TO PAY ALL HIS DEBTS, MAKES A VOLUNTARY ASSIGNMENT
THEREOF."  WE HOLD THAT THIS STATUTE CLEARLY SUBORDINATES THE CLAIMS OF
BOTH THE LANDLORD AND THE MUNICIPALITY TO THAT OF THE UNITED STATES. 
THE JUDGMENT OF THE COURT BELOW MUST ACCORDINGLY BE REVERSED. 

THE WORDS OF SEC. 3466 ARE BROAD AND SWEEPING AND, ON THEIR FACE,
ADMIT OF NO EXCEPTION TO THE PRIORITY OF CLAIMS OF THE UNITED STATES. 
THELUSSON V. SMITH, 2 WHEAT.  396, 425; UNITED STATES V. TEXAS, SUPRA,
484.  BUT THIS COURT IN THE PAST HAS RECOGNIZED THAT CERTAIN EXCEPTIONS
COULD BE READ INTO THIS STATUTE.  THE QUESTION HAS NOT BEEN EXPRESSLY
DECIDED, HOWEVER, AS TO WHETHER THE PRIORITY OF THE UNITED STATES MIGHT
BE DEFEATED BY A SPECIFIC AND PERFECTED LIEN UPON THE PROPERTY AT THE
TIME OF THE INSOLVENCY OR VOLUNTARY ASSIGNMENT.  CONARD V. ATLANTIC
INSURANCE CO., 1 PET. 386, 441, 444; BRENT V. BANK OF WASHINGTON, 10
PET. 596, 611, 612; SPOKANE COUNTY V. UNITED STATES, 279 U.S. 80, 95;
UNITED STATES V. KNOTT, 298 U.S. 544, 551; NEW YORK V. MACLAY, SUPRA,
293, 294; UNITED STATES V. TEXAS, SUPRA, 485, 486.  IT IS WITHIN THIS
SUGGESTED EXCEPTION THAT THE LANDLORD AND THE MUNICIPALITY SEEK TO
BRING THEMSELVES.  ONCE AGAIN, HOWEVER, WE DO NOT REACH A DECISION AS
TO WHETHER SUCH AN EXCEPTION IS PERMISSIBLE FOR WE DO NOT BELIEVE THAT
THE ASSERTED LIENS OF THE LANDLORD AND THE MUNICIPALITY WERE
SUFFICIENTLY SPECIFIC AND PERFECTED ON THE DATE OF THE VOLUNTARY
ASSIGNMENT TO CAST ANY SERIOUS DOUBT ON THE PRIORITY OF THE CLAIM OF
THE UNITED STATES. 

THE LANDLORD RESTS ITS CLAIM UPON CERTAIN PROVISIONS OF THE VIRGINIA
CODE OF 1936.  SECTIONS 5519 AND 5523 AUTHORIZE A LANDLORD TO LEVY
DISTRESS FOR SIX MONTHS' RENT UPON "ANY GOODS OF THE LESSEE  ...  FOUND
ON THE PREMISES, OR WHICH MAY HAVE BEEN REMOVED THEREFROM NOT MORE THAN
THIRTY DAYS  ....  FOR NOT MORE THAN SIX MONTHS' RENT IF THE PREMISES
ARE IN A CITY OR TOWN."  SECTION 5524 PROVIDES THAT THE GOODS OF THE
TENANT ON LEASED PREMISES IN A CITY OR TOWN MAY NOT BE REMOVED BY A
LIENOR OR PURCHASER, NOR TAKEN UNDER LEGAL PROCESS, SAVE "ON THE TERMS
OF PAYING TO THE PERSON ENTITLED TO THE RENT SO MUCH AS IS IN ARREAR,
AND SECURING TO HIM SO MUCH AS IS TO BECOME DUE," NOT TO EXCEED SIX
MONTHS' RENT.  OTHER SECTIONS PROVIDE FOR OFFICERS MAKING THE DISTRESS
UNDER WARRANT FROM A JUSTICE, FOUNDED UPON AN AFFIDAVIT OF THE PERSON
CLAIMING THE RENT, AND FOR SUCH OFFICERS TO MAKE RETURNS OF THEIR
ACTIONS AND PROCEEDINGS UPON SUCH WARRANTS.  PROVISIONS ARE ALSO MADE
FOR LEGAL PROCEEDINGS LOOKING TOWARD THE POSSESSION AND SALE OF THE
PROPERTY TO SATISFY THE DEBT. 

THE SUPREME COURT OF APPEALS OF VIRGINIA HAS HERE HELD THAT THESE
ONE WHICH IS MERELY INCHOATE, AND THAT SUCH A LIEN EXISTS INDEPENDENT
OF THE RIGHT OF DISTRESS OR ATTACHMENT, WHICH ARE MERELY REMEDIES FOR
ENFORCING IT."  182 VA. AT 363, 28 S.W.2D AT 746.  IT HAS ALSO HELD
THAT SUCH A LIEN "RELATES BACK TO THE BEGINNING OF THE TENANCY," 182
VA. AT 364, 28 S.E.2D AT 746, THUS GIVING IT FORCE AND EFFECT ON DATE
OF THE VOLUNTARY ASSIGNMENT.  THESE INTERPRETATIONS OF THE VIRGINIA
STATUTES, AS PROPOSITIONS OF STATE LAW, ARE BINDING.  BUT IT IS A
MATTER OF FEDERAL LAW AS TO WHETHER A LIEN CREATED BY STATE STATUTE IS
SUFFICIENTLY SPECIFIC AND PERFECTED TO RAISE QUESTIONS AS TO THE
APPLICABILITY OF THE PRIORITY GIVEN THE CLAIMS OF THE UNITED STATES BY
AN ACT OF CONGRESS.  IF THE PRIORITY OF THE UNITED STATES IS EVER TO BE
DISPLACED BY A LOCAL STATUTORY LIEN, FEDERAL COURTS MUST BE FREE TO
EXAMINE THE LIEN'S ACTUAL LEGAL EFFECT UPON THE PARTIES.  A STATE
COURT'S CHARACTERIZATION OF A LIEN AS SPECIFIC AND PERFECTED, HOWEVER
CONCLUSIVE AS A MATTER OF STATE LAW, CANNOT OPERATE BY ITSELF TO IMPAIR
OR SUPERSEDE A LONG-STANDING CONGRESSIONAL DECLARATION OF PRIORITY. 
FIELD V. UNITED STATES, 9 PET. 182, 201; UNITED STATES V. OKLAHOMA, 261
U.S. 253, 260; SPOKANE COUNTY V. UNITED STATES, SUPRA, 90. 

TESTED BY ITS LEGAL EFFECT UNDER VIRGINIA LAW, THE LANDLORD'S LIEN IN
THIS INSTANCE APPEARED TO SERVE "MERELY AS A CAVEAT OF A MORE PERFECT
LIEN TO COME."  NEW YORK V. MACLAY, SUPRA, 294.  AS OF THE DATE OF THE
VOLUNTARY ASSIGNMENT, IT WAS NEITHER SPECIFIC NOR PERFECTED.  IT GAVE
THE LANDLORD ONLY A GENERAL POWER OVER UNSPECIFIED PROPERTY RATHER THAN
AN ACTUAL INTEREST IN A DEFINITIVE PORTION OR PORTIONS THEREOF. 

SPECIFICITY WAS CLEARLY LACKING AS TO THE LIEN ON JUNE 19, 1941, THE
DATE OF THE ASSIGNMENT.  ON THAT DAY IT WAS STILL UNCERTAIN WHETHER THE
LANDLORD WOULD EVER ASSERT AND INSIST UPON ITS STATUTORY LIEN.  UNTIL
THAT WAS DONE IT WAS IMPOSSIBLE TO DETERMINE THE PARTICULAR SIX MONTHS'
RENT, OR A PROPORTION THEREOF, UPON WHICH THE LIEN WAS BASED.  THE LIEN
DID NOT RELATE TO ANY PARTICULAR SIX MONTHS' RENT BUT COULD ATTACH ONLY
FOR THE RENT WHICH MIGHT BE DUE AT OR AFTER THE TIME WHEN THE LIEN WAS
ASSERTED.  WADES V. FIGGATT, 75 VA. 575, 582.  AND IF IT WERE ASSERTED
AT A TIME WHEN THE TENANCY HAD TERMINATED OR WOULD TERMINATE WITHIN SIX
MONTHS OF THE DATE TO WHICH RENT HAD BEEN FULLY PAID, THE LIEN COULD
ONLY COVER LESS THAN SIX MONTHS' RENT.  CONCEIVABLY THE AMOUNT OF RENT
DUE OR TO BECOME DUE WAS UNCERTAIN ON THE DAY OF THE ASSIGNMENT.  THE
LANDLORD MAY HAVE BEEN MISTAKEN AS TO THE RENTAL RATE OR AS TO PAYMENTS
PREVIOUSLY MADE AND THE TENANT MAY HAVE BEEN ENTITLED TO A SET-OFF. 
SEE ALLEN V. HART, 18 GRATT.  (59 VA.)  722, 737; HANCOCK V. WHITEHALL
TOBACCO CO., 100 VA. 443, 447, 41 S.E. 860.  MOREOVER, WHILE THE LIEN
LEGALLY ATTACHED TO ALL SUCH PROPERTY AS MIGHT BE ON THE PREMISES WHEN
THE LIEN WAS ASSERTED OR WITHIN THIRTY DAYS PRIOR TO DISTRAINT, THE
LANDLORD COULD DISTRAIN GOODS ONLY TO THE EXTENT NECESSARY TO SATISFY
THE RENT JUSTLY BELIEVED TO BE DUE, THE TENANT POSSESSING AN ACTION FOR
DAMAGES FOR EXCESSIVE DISTRAINT.  VA. CODE SEC. 5783; FISHBURNE V.
ENGLEDOVE, 91 VA. 548, 22 S.E. 354; GURFEIN V. HOWELL, 142 VA. 197, 128
S.E. 644.  THUS UNTIL THE EXTENT OF THE LIEN WAS MADE KNOWN BY THE
LANDLORD AND UNTIL SOME STEPS HAD BEEN TAKEN TO DISTRAIN OR ATTACH
SUFFICIENT PROPERTY TO SATISFY THE LIEN, IT WAS IMPOSSIBLE TO SPECIFY
THE GOODS ACTUALLY AND PROPERLY SUBJECT TO THE LIEN.  SOME OF THE GOODS
ON THE PREMISES MAY HAVE BEEN SUBJECT TO MORTGAGES OR LIENS WHICH
ATTACHED BEFORE THE GOODS WERE BROUGHT ON THE PREMISES, IN WHICH CASE
THE LANDLORD'S LIEN WOULD BE INFERIOR.  VA. CODE SEC. 5523.  AND IF
OTHER GOODS WERE REMOVED AFTER THE DATE OF THE VOLUNTARY ASSIGNMENT BUT
MORE THAN THIRTY DAYS BEFORE THE DISTRAINT OR ATTACHMENT, THE RIGHT OF
DISTRAINT AND ATTACHMENT AS TO THOSE GOODS WOULD DISAPPEAR.  VA. CODE
SEC. 5523; DIME DEPOSIT BANK V. WESCOTT, 113 VA. 567, 75 S.E. 179. 
THESE FACTORS COMPEL THE CONCLUSION THAT NEITHER THE RENT SECURED BY
THE LIEN NOR THE PROPERTY SUBJECT TO THE LIEN WAS SUFFICIENTLY SPECIFIC
AND ASCERTAINABLE ON THE DAY OF THE VOLUNTARY ASSIGNMENT TO FALL WITHIN
THE TERMS OF THE SUGGESTED EXCEPTION. 

NOR WAS THE STATUTORY LIEN PERFECTED AS A MATTER OF ACTUAL FACT,
REGARDLESS OF HOW COMPLETE IT MAY HAVE BEEN AS A MATTER OF STATE LAW. 
THE TENANT WAS DIVESTED OF NEITHER TITLE NOR POSSESSION BY THE SILENT
EXISTENCE OF THE LANDLORD'S STATUTORY LIEN ON THE DATE OF THE
ASSIGNMENT.  ONLY AFTER THE LIEN WAS ACTUALLY ASSERTED AND AN
ATTACHMENT OR A DISTRAINT LEVELED, ENABLING THE LANDLORD TO SATISFY HIS
CLAIM OUT OF THE SEIZED GOODS, COULD IT BE ARGUED THAT SUCH GOODS
SEVERED THEMSELVES FROM THE GENERAL AND FREE ASSETS OF THE TENANT FROM
WHICH THE CLAIMS OF THE UNITED STATES WERE ENTITLED TO PRIORITY OF
PAYMENT.  PRIOR TO THAT TIME, THE LIEN OPERATED TO DO NO MORE THAN
PREVENT THE REMOVAL OF GOODS FROM THE PREMISES BY CERTAIN CLASSES OF
PERSONS, VA. CODE SEC. 5524, AND GIVE THE LANDLORD PRIORITY IN
DISTRIBUTION UNDER STATE LAW PROVIDED THAT THE GOODS REMAINED ON THE
PREMISES.  SUCH A POTENTIAL, INCHOATE LIEN COULD NOT DISTURB THE CLEAR
COMMAND OF SEC. 3466 OF THE REVISED STATUTES.  SOMETHING MORE THAN A
"CAVEAT OF A MORE PERFECT LIEN TO COME" WAS NECESSARY. 

THE LIEN OF THE CITY OF DANVILLE STANDS IN NO BETTER POSITION INSOFAR
AS THE CLAIM OF THE UNITED STATES IS CONCERNED.  THE MUNICIPALITY
CONTENDS THAT IT ASSESSED TAXES ON SPECIFIC ITEMS OF FURNITURE AND
EQUIPMENT PURSUANT TO ANNUAL LEVIES MADE BY THE CITY COUNCIL AND THAT A
LIEN ATTACHED TO SUCH PROPERTY ON JANUARY 1, 1941, BY OPERATION OF
STATE LAW.  IT CLAIMS THAT THIS LIEN ATTACHED BEFORE THE CLAIM OF THE
UNITED STATES WAS ACQUIRED AND HENCE HAD PRIORITY. 

UNDER VIRGINIA LAW, HOWEVER, A MUNICIPAL TAX CONFERS A LIEN ON
PERSONAL PROPERTY WHICH ENABLES THE CITY TO FOLLOW IT WHEREVER IT MAY
BE TAKEN ONLY IF THE ASSESSMENT IS SPECIFICALLY MADE ON SUCH PROPERTY. 
DREWRY V. BAUGH & SONS, 150 VA. 394, 400, 401, 143 S.E. 713; CHAMBERS
V. HIGGINS, 169 VA. 345, 351, 352, 193 S.E. 531.  THE CORPORATION COURT
OF DANVILLE RECOGNIZED THAT THE CITY HAD NOT MADE SUCH AN ASSESSMENT IN
THIS CASE SINCE IT HELD THAT ASSESSMENT OF THE FURNITURE AND EQUIPMENT
AS A UNIT WAS SUFFICIENT TO SATISFY THIS RULE "SO LONG AS THEY REMAINED
ON THE PREMISES WHERE THE OWNER'S BUSINESS WAS CONDUCTED."  IT REALIZED
THAT IF THIS PROPERTY UNIT WERE SEPARATED OR REMOVED FROM THE PREMISES
DIFFERENT RESULTS WOULD FOLLOW.  UNLESS AND UNTIL DISTRAINT WAS LEVIED,
WHICH IN THIS CASE OCCURRED THIRTEEN DAYS AFTER THE VOLUNTARY
ASSIGNMENT, IT WAS UNCERTAIN WHETHER THE FURNITURE AND EQUIPMENT WOULD
REMAIN INTACT AS A UNIT ON THE PREMISES AND HENCE BE SUBJECT TO THE TAX
LIEN.  IF SUCH PROPERTY HAD BEEN REMOVED, DISTRAINT COULD THEN HAVE
BEEN LEVIED ON OTHER UNDETERMINED PROPERTY OF THE TENANT.  AT LEAST
UNTIL ACTUAL DISTRAINT, THEREFORE, THERE WAS NO CERTAINTY AS TO THE
PROPERTY SUBJECT TO THE LIEN AND NO TRANSFER OF TITLE OR POSSESSION
RELATIVE TO ANY PROPERTY.  SUCH A LIEN CANNOT BE SAID TO BE SO EXPLICIT
AND PERFECTED ON THE DATE OF THE VOLUNTARY ASSIGNMENT AS TO FALL WITHIN
THE CLAIMED EXCEPTION TO THE PRIORITY OF THE UNITED STATES.  REVERSED. 
MR. JUSTICE JACKSON IS OF OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED FOR THE REASONS STATED BY THE SUPREME COURT OF APPEALS OF
VIRGINIA. 
..END :













UNITED STATES V. ROSENWASSER, 323 U.S. 360 


NO. 106.  ARGUED DECEMBER 12, 1944.  - DECIDED JANUARY 2, 1945.  -
REVERSED. 


THE FAIR LABOR STANDARDS ACT OF 1938 IS APPLICABLE TO EMPLOYEES
COMPENSATED ON A PIECE RATE BASIS, AND EMPLOYERS OF SUCH EMPLOYEES ARE
SUBJECT TO THE CRIMINAL PROVISIONS OF THE ACT.  P. 361. 

UNITED STATES V. ROSENWASSER, DOING BUSINESS AS PERFECT GARMENT CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT SUSTAINING A
DEMURRER AS TO CERTAIN COUNTS OF AN INFORMATION CHARGING VIOLATIONS OF
THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL FROM A JUDGMENT OF THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA.  THAT COURT SUSTAINED APPELLEE'S
DEMURRER TO AN INFORMATION CHARGING VIOLATIONS OF THE MINIMUM WAGE,
OVERTIME AND RECORDKEEPING PROVISIONS OF THE FAIR LABOR STANDARDS ACT
OF 1938, 52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. THIS WAS DONE ON THE
GROUND THAT THE ACT IS INAPPLICABLE WHERE EMPLOYEES ARE COMPENSATED AT
PIECE RATES, AS IS THE CASE IN APPELLEE'S GARMENT BUSINESS.  WE ARE
THUS MET WITH THE CLEAR ISSUE OF WHETHER THE ACT COVERS PIECE RATE
EMPLOYEES SO AS TO SUBJECT THEIR EMPLOYERS TO ITS CRIMINAL PROVISIONS. 

NEITHER THE POLICY OF THE ACT NOR THE LEGISLATIVE HISTORY GIVES ANY
REAL BASIS FOR EXCLUDING PIECE WORKERS FROM THE BENEFITS OF THE
STATUTE.  THIS LEGISLATION WAS DESIGNED TO RAISE SUBSTANDARD WAGES AND
TO GIVE ADDITIONAL COMPENSATION FOR OVERTIME WORK AS TO THOSE EMPLOYEES
WITHIN ITS AMBIT, THEREBY HELPING TO PROTECT THIS NATION "FROM THE
EVILS AND DANGERS RESULTING FROM WAGES TOO LOW TO BUY THE BARE
NECESSITIES OF LIFE AND FROM LONG HOURS OF WORK INJURIOUS TO HEALTH." 
SEN. REP. NO. 884(75TH CONG., 1ST SESS.) P. 4; UNITED STATES V. DARBY,
312 U.S. 100.  NO REASON IS APPARENT WHY PIECE WORKERS WHO ARE
UNDERPAID  FN1  OR WHO WORK LONG HOURS DO NOT FALL WITHIN THE SPIRIT OR
INTENT OF THIS STATUTE, ABSENT AN EXPLICIT EXCEPTION AS TO THEM.  PIECE
RATE AND INCENTIVE SYSTEMS WERE WIDELY PREVALENT IN THE UNITED STATES
AT THE TIME OF THE PASSAGE OF THIS ACT  FN2  AND WE CANNOT ASSUME THAT
CONGRESS MEANT TO DISCRIMINATE AGAINST THE MANY WORKERS COMPENSATED
UNDER SUCH SYSTEMS.  CERTAINLY THE EVILS WHICH THE ACT SOUGHT TO
ELIMINATE PERMIT OF NO DISTINCTION OR DISCRIMINATION BASED UPON THE
METHOD OF EMPLOYEE COMPENSATION AND NONE IS EVIDENT FROM THE
LEGISLATIVE HISTORY. 

THE PLAIN WORDS OF THE STATUTE GIVE AN EVEN MORE UNMISTAKABLE ANSWER
TO THE PROBLEM.  SECTION 6(A) OF THE ACT PROVIDES THAT "EVERY EMPLOYER"
SHALL PAY TO "EACH OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN
THE PRODUCTION OF GOODS FOR COMMERCE" NOT LESS THAN SPECIFIED MINIMUM
"RATES," WHICH AT PRESENT ARE "NOT LESS THAN 30 CENTS AN HOUR." 
EMPLOYEES" FOR LONGER THAN SPECIFIED HOURS IN ANY WEEK WITHOUT PAYING
OVERTIME COMPENSATION "AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES
THE REGULAR RATE AT WHICH HE IS EMPLOYED."  THE TERM "EMPLOYEE" IS
DEFINED IN SEC. 3(E) TO INCLUDE "ANY INDIVIDUAL EMPLOYED BY AN
EMPLOYER," WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT BEING SPECIFIED
IN SEC. 13, AND THE TERM "EMPLOY" IS DEFINED IN SEC. 3(G) TO INCLUDE
"TO SUFFER OR PERMIT TO WORK." 

A BROADER OR MORE COMPREHENSIVE COVERAGE OF EMPLOYEES WITHIN THE
STATED CATEGORIES WOULD BE DIFFICULT TO FRAME.  THE USE OF THE WORDS
"EACH" AND "ANY" TO MODIFY "EMPLOYEE," WHICH IN TURN IS DEFINED TO
INCLUDE "ANY" EMPLOYED INDIVIDUAL, LEAVES NO DOUBT AS TO THE
CONGRESSIONAL INTENTION TO INCLUDE ALL EMPLOYEES WITHIN THE SCOPE OF
THE ACT UNLESS SPECIFICALLY EXCLUDED.  FN3  AND "EACH" AND "ANY"
EMPLOYEE OBVIOUSLY AND NECESSARILY INCLUDES ONE COMPENSATED BY A UNIT
OF TIME, BY THE PIECE OR BY ANY OTHER MEASUREMENT.  FN4  A WORKER IS AS
MUCH AN EMPLOYEE WHEN PAID BY THE PIECE AS HE IS WHEN PAID BY THE
HOUR.  THE TIME OR MODE OF COMPENSATION, IN OTHER WORDS, DOES NOT
CONTROL THE DETERMINATION OF WHETHER ONE IS AN EMPLOYEE WITHIN THE
MEANING OF THE ACT AND NO COURT IS JUSTIFIED IN READING IN AN EXCEPTION
BASED UPON SUCH A FACTOR.  WHEN COMBINED WITH THE CRIMINAL PROVISIONS
OF SECS. 15 AND 16, THE UNRESTRICTED SWEEP OF THE TERM "EMPLOYEE"
SERVES TO INFORM EMPLOYERS WITH DEFINITENESS AND CERTAINTY THAT THEY
ARE CRIMINALLY LIABLE FOR WILLFUL VIOLATIONS OF THE ACT IN RELATION TO
THEIR PIECE RATE EMPLOYEES AS WELL AS TO THEIR EMPLOYEES COMPENSATED BY
OTHER METHODS.  SEE UNITED STATES V. DARBY, SUPRA, 125, 126. 

THE FACT THAT SEC. 6(A) SPEAKS OF A MINIMUM RATE OF PAY "AN HOUR,"
WHILE SEC. 7(A) REFERS TO A "REGULAR RATE" WHICH WE HAVE DEFINED TO
MEAN "THE HOURLY RATE ACTUALLY PAID FOR THE NORMAL, NON-OVERTIME
WORKWEEK," WALLING V. HELMERICH & PAYNE, 323 U.S. 37, 40, DOES NOT
PRECLUDE APPLICATION OF THE ACT TO PIECE WORKERS.  CONGRESS NECESSARILY
HAD TO CREATE PRACTICAL AND SIMPLE MEASURING RODS TO TEST COMPLIANCE
WITH THE REQUIREMENTS AS TO MINIMUM WAGES AND OVERTIME COMPENSATION. 
IT DID SO BY SETTING THE STANDARDS IN TERMS OF HOURS AND HOURLY RATES. 
BUT OTHER MEASURES OF WORK AND COMPENSATION ARE NOT THEREBY VOIDED OR
PLACED OUTSIDE THE REACH OF THE ACT.  SUCH OTHER MODES MERELY MUST BE
TRANSLATED OR REDUCED BY COMPUTATION TO AN HOURLY BASIS FOR THE SOLE
PURPOSE OF DETERMINING WHETHER THE STATUTORY REQUIREMENTS HAVE BEEN
FULFILLED.  OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, 579; WALLING
V. HELMERICH & PAYNE, SUPRA, 40.  THESE HOURLY STANDARDS ARE NOT SO
PHRASED AS REASONABLY TO MISLEAD EMPLOYERS INTO BELIEVING THAT THE ACT
IS LIMITED TO EMPLOYEES WORKING ON AN HOURLY WAGE SCALE.  NOR CAN A
COURT RIGHTLY USE THESE STANDARDS AS A BASIS FOR CUTTING OFF THE
BENEFITS OF THE ACT FROM EMPLOYEES PAID BY OTHER UNITS OF TIME OR BY
THE PIECE.  IF THAT WERE PERMISSIBLE, READY MEANS FOR WHOLESALE EVASION
OF THE ACT'S REQUIREMENTS WOULD BE PROVIDED. 

IT FOLLOWS THAT THE COURT BELOW ERRED IN SUSTAINING APPELLEE'S
DEMURRER TO THE INFORMATION.  ITS JUDGMENT IS REVERSED. 

FN1  THE GOVERNMENT POINTS OUT THAT UNITED STATES DEPARTMENT OF LABOR
STATISTICS SHOW THAT 25.5% TO 48.5% OF THE UNSKILLED WORKERS PAID UNDER
THE PIECE RATE OR INCENTIVE SYSTEMS IN SIX INDUSTRIES (BOOT AND SHOE,
KNITTED OUTERWEAR, KNITTED UNDERWEAR, SEAMLESS HOSIERY, FULL FASHIONED
HOSIERY AND WORK AND KNIT GLOVES) RECEIVED LESS THAN 30 CENTS AN HOUR
AT APPROXIMATELY THE TIME OF THE PASSAGE OF THE ACT. 

FN2  THE GOVERNMENT FURTHER POINTS OUT THAT LARGE PERCENTAGES OF
WORKERS ARE PAID ON A STRAIGHT PIECE BASIS IN THE FOLLOWING INDUSTRIES:
BOOT AND SHOE, BOOT AND SHOE CUT STOCK AND FINDINGS, HOSIERY, KNIT
GOODS, HAT INDUSTRIES, GLOVES, CIGAR, FURNITURE, LEATHER AND MEAT
PACKING.  IT ALSO STATES THAT STUDIES MADE IN 1935, COVERING A CROSS
EMPLOYING 700,699 WAGE EARNERS, INDICATED THAT 22.1% WERE EMPLOYED AT
STRAIGHT PIECE RATES AND AN ADDITIONAL 21.6% ON SOME PREMIUM OR BONUS
SYSTEM.  ANOTHER STUDY MADE IN 1939 REVEALED THAT 61.6% OF THE WORKERS
IN 300 COMPANIES STUDIED WERE PAID ACCORDING TO AN INCENTIVE SYSTEM. 
NATIONAL INDUSTRIAL CONFERENCE BOARD, STUDIES IN PERSONNEL POLICY, NO.
19, SOME PROBLEMS IN WAGE INCENTIVE ADMINISTRATION, P. 11, TABLE 4. 

FN3  SEN. REP. NO. 884(75TH CONG., 1ST SESS.) P. 6, STATES THAT THE
TERM "'EMPLOYEE' IS DEFINED TO INCLUDE ALL EMPLOYEES  ...."  SENATOR
BLACK SAID ON THE FLOOR OF THE SENATE THAT THE TERM "EMPLOYEE" HAD BEEN
GIVEN "THE BROADEST DEFINITION THAT HAS EVER BEEN INCLUDED IN ANY ONE
ACT."  81 CONG. REC. 7657. 

FN4  THE ACT OF JUNE 26, 1940, C. 432, SEC. 3, 54 STAT. 615, ADDED
SEC. 6(A)(5) TO THE FAIR LABOR STANDARDS ACT.  THIS NEW SECTION MAKES
PROVISION FOR ESTABLISHING MINIMUM PIECE RATES BY REGULATION OR ORDER
FOR HOMEWORK IN PUERTO RICO AND THE VIRGIN ISLANDS.  THIS IS EVIDENCE
OF A CONGRESSIONAL INTENT TO INCLUDE WORKERS OF THIS TYPE WITHIN THE
ACT AND A RECOGNITION THAT WITHOUT THIS SPECIAL PROVISION HOMEWORKERS
IN PUERTO RICO AND THE VIRGIN ISLANDS PAID BY THE PIECE WOULD BE
SUBJECT TO THE ORDINARY STATUTORY PROVISIONS RELATING TO MINIMUM
WAGES. 

MR. JUSTICE ROBERTS DISSENTS. 
..END :


















STEELE V. L. & N.R. CO., 323 U.S. 192 


NO. 45.  ARGUED NOVEMBER 14, 15, 1944.  - DECIDED DECEMBER 18, 1944.  -
245 ALA. 113, 16 SO.2D 416, REVERSED. 


1.  THE RAILWAY LABOR ACT IMPOSES ON A LABOR ORGANIZATION, ACTING BY
AUTHORITY OF THE STATUTE AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
A CRAFT OR CLASS OF RAILWAY EMPLOYEES, THE DUTY TO REPRESENT ALL THE
EMPLOYEES IN THE CRAFT WITHOUT DISCRIMINATION BECAUSE OF THEIR RACE,
AND THE COURTS HAVE JURISDICTION TO PROTECT THE MINORITY OF THE CRAFT
OR CLASS FROM THE VIOLATION OF SUCH OBLIGATION.  P. 199. 

2.  THE RAILWAY LABOR ACT IMPOSES ON THE STATUTORY REPRESENTATIVE OF
A CRAFT AT LEAST AS EXACTING A DUTY TO PROTECT EQUALLY THE INTERESTS OF
A MEMBER OF THE CRAFT AS THE CONSTITUTION IMPOSES UPON A LEGISLATURE TO
GIVE EQUAL PROTECTION TO THE INTERESTS OF THOSE FOR WHOM IT
LEGISLATES.  THE ACT CONFERS ON THE BARGAINING REPRESENTATIVE POWERS
COMPARABLE TO THOSE POSSESSED BY A LEGISLATIVE BODY BOTH TO CREATE AND
RESTRICT THE RIGHTS OF THOSE WHOM IT REPRESENTS, BUT IT ALSO IMPOSES ON
THE REPRESENTATIVE A CORRESPONDING DUTY.  P. 202. 

3.  SO LONG AS A LABOR UNION ASSUMES TO ACT AS THE STATUTORY
REPRESENTATIVE OF A CRAFT, IT CANNOT RIGHTLY REFUSE TO PERFORM THE
DUTY, WHICH IS INSEPARABLE FROM THE POWER OF REPRESENTATION CONFERRED
UPON IT, TO REPRESENT THE ENTIRE MEMBERSHIP OF THE CRAFT.  WHILE THE
STATUTE DOES NOT DENY TO SUCH A BARGAINING LABOR ORGANIZATION THE RIGHT
TO DETERMINE ELIGIBILITY TO ITS MEMBERSHIP, IT DOES REQUIRE THE UNION,
IN COLLECTIVE BARGAINING AND IN MAKING CONTRACTS WITH THE CARRIER, TO
REPRESENT NON-UNION OR MINORITY UNION MEMBERS OF THE CRAFT WITHOUT
HOSTILE DISCRIMINATION, FAIRLY, IMPARTIALLY, AND IN GOOD FAITH. 
WHEREVER NECESSARY TO THAT END, THE UNION IS REQUIRED TO CONSIDER
REQUESTS OF NON-UNION MEMBERS OF THE CRAFT AND EXPRESSIONS OF THEIR
VIEWS WITH RESPECT TO COLLECTIVE BARGAINING WITH THE EMPLOYER AND TO
GIVE TO THEM NOTICE OF AND OPPORTUNITY FOR HEARING UPON ITS PROPOSED
ACTION.  P. 204. 

4.  THE RIGHT ASSERTED BY THE PETITIONER, TO A REMEDY FOR BREACH OF
THE STATUTORY DUTY OF THE BARGAINING REPRESENTATIVE TO REPRESENT AND
ACT FOR THE MEMBERS OF A CRAFT WITHOUT DISCRIMINATION AGAINST NEGROES
SOLELY BECAUSE OF THEIR RACE, IS CLAIMED UNDER THE CONSTITUTION AND A
STATUTE OF THE UNITED STATES; AND THE ADVERSE DECISION OF THE HIGHEST
COURT OF THE STATE IS REVIEWABLE HERE UNDER SEC. 237(B) OF THE JUDICIAL
CODE.  P. 204. 

5.  THE PETITIONER HERE HAS NO AVAILABLE ADMINISTRATIVE REMEDY UNDER
THE RAILWAY LABOR ACT, AND THE BILL OF COMPLAINT STATES A CAUSE OF
ACTION ENTITLING HIM TO RELIEF.  P. 205. 

6.  THE RAILWAY LABOR ACT CONTEMPLATES RESORT TO THE USUAL JUDICIAL
REMEDIES OF INJUNCTION AND AWARD OF DAMAGES WHEN APPROPRIATE FOR BREACH
OF THE DUTY IMPOSED BY THE STATUTE ON A UNION REPRESENTATIVE OF A CRAFT
TO REPRESENT THE INTERESTS OF ALL ITS MEMBERS.  P. 207. 

STEELE V. LOUISVILLE & NASHVILLE RAILROAD CO. ET AL. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

CERTIORARI, 322 U.S. 722, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
SUSTAINING A DEMURRER TO A COMPLAINT ASSERTING A FEDERAL RIGHT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE RAILWAY LABOR ACT, 48 STAT. 1185, 45
U.S.C. SECS. 151 ET SEQ., IMPOSES ON A LABOR ORGANIZATION, ACTING BY
AUTHORITY OF THE STATUTE AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
A CRAFT OR CLASS OF RAILWAY EMPLOYEES, THE DUTY TO REPRESENT ALL THE
EMPLOYEES IN THE CRAFT WITHOUT DISCRIMINATION BECAUSE OF THEIR RACE,
AND, IF SO, WHETHER THE COURTS HAVE JURISDICTION TO PROTECT THE
MINORITY OF THE CRAFT OR CLASS FROM THE VIOLATION OF SUCH OBLIGATION. 

THE ISSUE IS RAISED BY DEMURRER TO THE SUBSTITUTED AMENDED BILL OF
COMPLAINT FILED BY PETITIONER, A LOCOMOTIVE FIREMAN, IN A SUIT BROUGHT
IN THE ALABAMA CIRCUIT COURT AGAINST HIS EMPLOYER, THE LOUISVILLE &
NASHVILLE RAILROAD COMPANY, THE BROTHERHOOD OF LOCOMOTIVE FIREMEN AND
ENGINEMEN, AN UNINCORPORATED LABOR ORGANIZATION, AND CERTAIN
INDIVIDUALS REPRESENTING THE BROTHERHOOD.  THE CIRCUIT COURT SUSTAINED
THE DEMURRER, AND THE SUPREME COURT OF ALABAMA AFFIRMED.  245 ALA. 113,
16 SO.2D 416.  WE GRANTED CERTIORARI, 322 U.S. 722, THE QUESTION
PRESENTED BEING ONE OF IMPORTANCE IN THE ADMINISTRATION OF THE RAILWAY
LABOR ACT. 

THE ALLEGATIONS OF THE BILL OF COMPLAINT, SO FAR AS NOW MATERIAL, ARE
AS FOLLOWS:  PETITIONER, A NEGRO, IS A LOCOMOTIVE FIREMAN IN THE EMPLOY
OF RESPONDENT RAILROAD, SUING ON HIS OWN BEHALF AND THAT OF HIS FELLOW
EMPLOYEES WHO, LIKE PETITIONER, ARE NEGRO FIREMEN EMPLOYED BY THE
RAILROAD.  RESPONDENT BROTHERHOOD, A LABOR ORGANIZATION, IS, AS
PROVIDED UNDER SEC. 2, FOURTH OF THE RAILWAY LABOR ACT, THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF THE CRAFT OF FIREMEN EMPLOYED BY THE
RAILROAD AND IS RECOGNIZED AS SUCH BY IT AND THE MEMBERS OF THE CRAFT. 
THE MAJORITY OF THE FIREMEN EMPLOYED BY THE RAILROAD ARE WHITE AND ARE
MEMBERS OF THE BROTHERHOOD, BUT A SUBSTANTIAL MINORITY ARE NEGROES WHO,
BY THE CONSTITUTION AND RITUAL OF THE BROTHERHOOD, ARE EXCLUDED FROM
ITS MEMBERSHIP.  AS THE MEMBERSHIP OF THE BROTHERHOOD CONSTITUTES A
MAJORITY OF ALL FIREMEN EMPLOYED ON RESPONDENT RAILROAD, AND AS UNDER
SEC. 2, FOURTH THE MEMBERS BECAUSE THEY ARE THE MAJORITY HAVE THE RIGHT
TO CHOOSE AND HAVE CHOSEN THE BROTHERHOOD TO REPRESENT THE CRAFT,
PETITIONER AND OTHER NEGRO FIREMEN ON THE ROAD HAVE BEEN REQUIRED TO
ACCEPT THE BROTHERHOOD AS THEIR REPRESENTATIVE FOR THE PURPOSES OF THE
ACT. 

ON MARCH 28, 1940, THE BROTHERHOOD, PURPORTING TO ACT AS
REPRESENTATIVE OF THE ENTIRE CRAFT OF FIREMEN, WITHOUT INFORMING THE
NEGRO FIREMEN OR GIVING THEM OPPORTUNITY TO BE HEARD, SERVED A NOTICE
ON RESPONDENT RAILROAD AND ON TWENTY OTHER RAILROADS OPERATING
PRINCIPALLY IN THE SOUTHEASTERN PART OF THE UNITED STATES.  THE NOTICE
ANNOUNCED THE BROTHERHOOD'S DESIRE TO AMEND THE EXISTING COLLECTIVE
BARGAINING AGREEMENT IN SUCH MANNER AS ULTIMATELY TO EXCLUDE ALL NEGRO
FIREMEN FROM THE SERVICE.  BY ESTABLISHED PRACTICE ON THE SEVERAL
RAILROADS SO NOTIFIED ONLY WHITE FIREMEN CAN BE PROMOTED TO SERVE AS
ENGINEERS, AND THE NOTICE PROPOSED THAT ONLY "PROMOTABLE," I.E. WHITE,
MEN SHOULD BE EMPLOYED AS FIREMEN OR ASSIGNED TO NEW RUNS OR JOBS OR
PERMANENT VACANCIES IN ESTABLISHED RUNS OR JOBS. 

ON FEBRUARY 18, 1941, THE RAILROADS AND THE BROTHERHOOD, AS
REPRESENTATIVE OF THE CRAFT, ENTERED INTO A NEW AGREEMENT WHICH
PROVIDED THAT NOT MORE THAN 50% OF THE FIREMEN IN EACH CLASS OF SERVICE
IN EACH SENIORITY DISTRICT OF A CARRIER SHOULD BE NEGROES; THAT UNTIL
SUCH PERCENTAGE SHOULD BE REACHED ALL NEW RUNS AND ALL VACANCIES SHOULD
BE FILLED BY WHITE MEN; AND THAT THE AGREEMENT DID NOT SANCTION THE
EMPLOYMENT OF NEGROES IN ANY SENIORITY DISTRICT IN WHICH THEY WERE NOT
WORKING.  THE AGREEMENT RESERVED THE RIGHT OF THE BROTHERHOOD TO
NEGOTIATE FOR FURTHER RESTRICTIONS ON THE EMPLOYMENT OF NEGRO FIREMEN
ON THE INDIVIDUAL RAILROADS.  ON MAY 12, 1941, THE BROTHERHOOD ENTERED
INTO A SUPPLEMENTAL AGREEMENT WITH RESPONDENT RAILROAD FURTHER
CONTROLLING THE SENIORITY RIGHTS OF NEGRO FIREMEN AND RESTRICTING THEIR
EMPLOYMENT.  THE NEGRO FIREMEN WERE NOT GIVEN NOTICE OR OPPORTUNITY TO
BE HEARD WITH RESPECT TO EITHER OF THESE AGREEMENTS, WHICH WERE PUT
INTO EFFECT BEFORE THEIR EXISTENCE WAS DISCLOSED TO THE NEGRO FIREMEN. 

UNTIL APRIL 8, 1941, PETITIONER WAS IN A "PASSENGER POOL," TO WHICH
ONE WHITE AND FIVE NEGRO FIREMEN WERE ASSIGNED.  THESE JOBS WERE HIGHLY
DESIRABLE IN POINT OF WAGES, HOURS AND OTHER CONSIDERATIONS. 
PETITIONER HAD PERFORMED AND WAS PERFORMING HIS WORK SATISFACTORILY. 
FOLLOWING A REDUCTION IN THE MILEAGE COVERED BY THE POOL, ALL JOBS IN
THE POOL WERE, ABOUT APRIL 1, 1941, DECLARED VACANT.  THE BROTHERHOOD
AND THE RAILROAD, ACTING UNDER THE AGREEMENT, DISQUALIFIED ALL THE
NEGRO FIREMEN AND REPLACED THEM WITH FOUR WHITE MEN, MEMBERS OF THE
BROTHERHOOD, ALL JUNIOR IN SENIORITY TO PETITIONER AND NO MORE
COMPETENT OR WORTHY.  AS A CONSEQUENCE PETITIONER WAS DEPRIVED OF
EMPLOYMENT FOR SIXTEEN DAYS AND THEN WAS ASSIGNED TO MORE ARDUOUS,
LONGER, AND LESS REMUNERATIVE WORK IN LOCAL FREIGHT SERVICE.  IN
CONFORMITY TO THE AGREEMENT, HE WAS LATER REPLACED BY A BROTHERHOOD
MEMBER JUNIOR TO HIM, AND ASSIGNED WORK ON A SWITCH ENGINE, WHICH WAS
STILL HARDER AND LESS REMUNERATIVE, UNTIL JANUARY 3, 1942.  ON THAT
DATE, AFTER THE BILL OF COMPLAINT IN THE PRESENT SUIT HAD BEEN FILED,
HE WAS REASSIGNED TO PASSENGER SERVICE. 

PROTESTS AND APPEALS OF PETITIONER AND HIS FELLOW NEGRO FIREMEN,
ADDRESSED TO THE RAILROAD AND THE BROTHERHOOD, IN AN EFFORT TO SECURE
RELIEF AND REDRESS, HAVE BEEN IGNORED.  RESPONDENTS HAVE EXPRESSED
THEIR INTENTION TO ENFORCE THE AGREEMENT OF FEBRUARY 18, 1941 AND ITS
SUBSEQUENT MODIFICATIONS.  THE BROTHERHOOD HAS ACTED AND ASSERTS THE
RIGHT TO ACT AS EXCLUSIVE BARGAINING REPRESENTATIVE OF THE FIREMEN'S
CRAFT.  IT IS ALLEGED THAT IN THAT CAPACITY IT IS UNDER AN OBLIGATION
AND DUTY IMPOSED BY THE ACT TO REPRESENT THE NEGRO FIREMEN IMPARTIALLY
AND IN GOOD FAITH; BUT INSTEAD, IN ITS NOTICE TO AND CONTRACTS WITH THE
RAILROADS, IT HAS BEEN HOSTILE AND DISLOYAL TO THE NEGRO FIREMEN, HAS
DELIBERATELY DISCRIMINATED AGAINST THEM, AND HAS SOUGHT TO DEPRIVE THEM
OF THEIR SENIORITY RIGHTS AND TO DRIVE THEM OUT OF EMPLOYMENT IN THEIR
CRAFT, ALL IN ORDER TO CREATE A MONOPOLY OF EMPLOYMENT FOR BROTHERHOOD
MEMBERS. 

THE BILL OF COMPLAINT ASKS FOR DISCOVERY OF THE MANNER IN WHICH THE
AGREEMENTS HAVE BEEN APPLIED AND IN OTHER RESPECTS; FOR AN INJUNCTION
AGAINST ENFORCEMENT OF THE AGREEMENTS MADE BETWEEN THE RAILROAD AND THE
BROTHERHOOD; FOR AN INJUNCTION AGAINST THE BROTHERHOOD AND ITS AGENTS
FROM PURPORTING TO ACT AS REPRESENTATIVE OF PETITIONER AND OTHERS
SIMILARLY SITUATED UNDER THE RAILWAY LABOR ACT, SO LONG AS THE
DISCRIMINATION CONTINUES, AND SO LONG AS IT REFUSES TO GIVE THEM NOTICE
AND HEARING WITH RESPECT TO PROPOSALS AFFECTING THEIR INTERESTS; FOR A
DECLARATORY JUDGMENT AS TO THEIR RIGHTS; AND FOR AN AWARD OF DAMAGES
AGAINST THE BROTHERHOOD FOR ITS WRONGFUL CONDUCT. 

THE SUPREME COURT OF ALABAMA TOOK JURISDICTION OF THE CAUSE BUT HELD
ON THE MERITS THAT PETITIONER'S COMPLAINT STATED NO CAUSE OF ACTION. 
FN1  IT POINTED OUT THAT THE ACT PLACES A MANDATORY DUTY ON THE
RAILROAD TO TREAT WITH THE BROTHERHOOD AS THE EXCLUSIVE REPRESENTATIVE
OF THE EMPLOYEES IN A CRAFT, IMPOSES HEAVY CRIMINAL PENALTIES FOR
WILLFUL FAILURE TO COMPLY WITH ITS COMMAND, AND PROVIDES THAT THE
MAJORITY OF ANY CRAFT SHALL HAVE THE RIGHT TO DETERMINE WHO SHALL BE
THE REPRESENTATIVE OF THE CLASS FOR COLLECTIVE BARGAINING WITH THE
EMPLOYER, SEE VIRGINIAN R. CO. V. SYSTEM FEDERATION, 300 U.S. 515,
545.  IT THOUGHT THAT THE BROTHERHOOD WAS EMPOWERED BY THE STATUTE TO
ENTER INTO THE AGREEMENT OF FEBRUARY 18, 1941, AND THAT BY VIRTUE OF
THE STATUTE THE BROTHERHOOD HAS POWER BY AGREEMENT WITH THE RAILROAD
BOTH TO CREATE THE SENIORITY RIGHTS OF PETITIONER AND HIS FELLOW NEGRO
EMPLOYEES AND TO DESTROY THEM.  IT CONSTRUED THE STATUTE, NOT AS
CREATING THE RELATIONSHIP OF PRINCIPAL AND AGENT BETWEEN THE MEMBERS OF
THE CRAFT AND THE BROTHERHOOD, BUT AS CONFERRING ON THE BROTHERHOOD
PLENARY AUTHORITY TO TREAT WITH THE RAILROAD AND ENTER INTO CONTRACTS
FIXING RATES OF PAY AND WORKING CONDITIONS FOR THE CRAFT AS A WHOLE
WITHOUT ANY LEGAL OBLIGATION OR DUTY TO PROTECT THE RIGHTS OF
MINORITIES FROM DISCRIMINATION OR UNFAIR TREATMENT, HOWEVER GROSS. 
CONSEQUENTLY IT HELD THAT NEITHER THE BROTHERHOOD NOR THE RAILROAD
VIOLATED ANY RIGHTS OF PETITIONER OR HIS FELLOW NEGRO EMPLOYEES BY
NEGOTIATING THE CONTRACTS DISCRIMINATING AGAINST THEM. 

IF, AS THE STATE COURT HAS HELD, THE ACT CONFERS THIS POWER ON THE
BARGAINING REPRESENTATIVE OF A CRAFT OR CLASS OF EMPLOYEES WITHOUT ANY
COMMENSURATE STATUTORY DUTY TOWARD ITS MEMBERS, CONSTITUTIONAL
QUESTIONS ARISE.  FOR THE REPRESENTATIVE IS CLOTHED WITH POWER NOT
UNLIKE THAT OF A LEGISLATURE WHICH IS SUBJECT TO CONSTITUTIONAL
LIMITATIONS ON ITS POWER TO DENY, RESTRICT, DESTROY OR DISCRIMINATE
AGAINST THE RIGHTS OF THOSE FOR WHOM IT LEGISLATES AND WHICH IS ALSO
UNDER AN AFFIRMATIVE CONSTITUTIONAL DUTY EQUALLY TO PROTECT THOSE
RIGHTS.  IF THE RAILWAY LABOR ACT PURPORTS TO IMPOSE ON PETITIONER AND
THE OTHER NEGRO MEMBERS OF THE CRAFT THE LEGAL DUTY TO COMPLY WITH THE
TERMS OF A CONTRACT WHEREBY THE REPRESENTATIVE HAS DISCRIMINATORILY
RESTRICTED THEIR EMPLOYMENT FOR THE BENEFIT AND ADVANTAGE OF THE
BROTHERHOOD'S OWN MEMBERS, WE MUST DECIDE THE CONSTITUTIONAL QUESTIONS
WHICH PETITIONER RAISES IN HIS PLEADING. 

BUT WE THINK THAT CONGRESS, IN ENACTING THE RAILWAY LABOR ACT AND
AUTHORIZING A LABOR UNION, CHOSEN BY A MAJORITY OF A CRAFT, TO
REPRESENT THE CRAFT, DID NOT INTEND TO CONFER PLENARY POWER UPON THE
UNION TO SACRIFICE, FOR THE BENEFIT OF ITS MEMBERS, RIGHTS OF THE
MINORITY OF THE CRAFT, WITHOUT IMPOSING ON IT ANY DUTY TO PROTECT THE
MINORITY.  SINCE PETITIONER AND THE OTHER NEGRO MEMBERS OF THE CRAFT
ARE NOT MEMBERS OF THE BROTHERHOOD OR ELIGIBLE FOR MEMBERSHIP, THE
AUTHORITY TO ACT FOR THEM IS DERIVED NOT FROM THEIR ACTION OR CONSENT
BUT WHOLLY FROM THE COMMAND OF THE ACT.  SECTION 2, FOURTH PROVIDES:
"EMPLOYEES SHALL HAVE THE RIGHT TO ORGANIZE AND BARGAIN COLLECTIVELY
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING.  THE MAJORITY OF ANY
CRAFT OR CLASS OF EMPLOYEES SHALL HAVE THE RIGHT TO DETERMINE WHO SHALL
BE THE REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES OF THIS
ACT...."  UNDER SECS. 2, SIXTH AND SEVENTH, WHEN THE REPRESENTATIVE
BARGAINS FOR A CHANGE OF WORKING CONDITIONS, THE LATTER SECTION
SPECIFIES THAT THEY ARE THE WORKING CONDITIONS OF EMPLOYEES "AS A
CLASS."  SECTION 1, SIXTH OF THE ACT DEFINES "REPRESENTATIVE" AS
MEANING "ANY PERSON OR  ...  LABOR UNION  ...  DESIGNATED EITHER BY A
CARRIER OR GROUP OF CARRIERS OR BY ITS OR THEIR EMPLOYEES, TO ACT FOR
IT OR THEM."  THE USE OF THE WORD "REPRESENTATIVE," AS THUS DEFINED AND
IN ALL THE CONTEXTS IN WHICH IT IS FOUND, PLAINLY IMPLIES THAT THE
REPRESENTATIVE IS TO ACT ON BEHALF OF ALL THE EMPLOYEES WHICH, BY
VIRTUE OF THE STATUTE, IT UNDERTAKES TO REPRESENT. 

BY THE TERMS OF THE ACT, SEC. 2, FOURTH, THE EMPLOYEES ARE PERMITTED
TO ACT "THROUGH" THEIR REPRESENTATIVE, AND IT REPRESENTS THEM "FOR THE
PURPOSES OF" THE ACT.  SECTIONS 2, THIRD, FOURTH, NINTH.  THE PURPOSES
OF THE ACT DECLARED BY SEC. 2 ARE THE AVOIDANCE OF "ANY INTERRUPTION TO
COMMERCE OR TO THE OPERATION OF ANY CARRIER ENGAGED THEREIN," AND THIS
AIM IS SOUGHT TO BE ACHIEVED BY ENCOURAGING "THE PROMPT AND ORDERLY
SETTLEMENT OF ALL DISPUTES CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS."  COMPARE TEXAS & NEW ORLEANS R. CO. V. BROTHERHOOD OF
CLERKS, 281 U.S. 548, 569.  THESE PURPOSES WOULD HARDLY BE ATTAINED IF
A SUBSTANTIAL MINORITY OF THE CRAFT WERE DENIED THE RIGHT TO HAVE THEIR
INTERESTS CONSIDERED AT THE CONFERENCE TABLE AND IF THE FINAL RESULT OF
THE BARGAINING PROCESS WERE TO BE THE SACRIFICE OF THE INTERESTS OF THE
MINORITY BY THE ACTION OF A REPRESENTATIVE CHOSEN BY THE MAJORITY.  THE
ONLY RECOURSE OF THE MINORITY WOULD BE TO STRIKE, WITH THE ATTENDANT
INTERRUPTION OF COMMERCE, WHICH THE ACT SEEKS TO AVOID. 

REPRESENTATIVE SO CHOSEN, OPERATES TO EXCLUDE ANY OTHER FROM
REPRESENTING A CRAFT.  VIRGINIAN R. CO. V. SYSTEM FEDERATION, SUPRA,
545.  THE MINORITY MEMBERS OF A CRAFT ARE THUS DEPRIVED BY THE STATUTE
OF THE RIGHT, WHICH THEY WOULD OTHERWISE POSSESS, TO CHOOSE A
REPRESENTATIVE OF THEIR OWN, AND ITS MEMBERS CANNOT BARGAIN
INDIVIDUALLY ON BEHALF OF THEMSELVES AS TO MATTERS WHICH ARE PROPERLY
THE SUBJECT OF COLLECTIVE BARGAINING.  ORDER OF RAILROAD TELEGRAPHERS
V. RAILWAY EXPRESS AGENCY, 321 U.S. 342, AND SEE UNDER THE LIKE
PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT J.I. CASE CO. V. LABOR
BOARD, 321 U.S. 332, AND MEDO PHOTO SUPPLY CORP. V. LABOR BOARD, 321
U.S. 678. 

THE LABOR ORGANIZATION CHOSEN TO BE THE REPRESENTATIVE OF THE CRAFT
OR CLASS OF EMPLOYEES IS THUS CHOSEN TO REPRESENT ALL OF ITS MEMBERS,
REGARDLESS OF THEIR UNION AFFILIATIONS OR WANT OF THEM.  AS WE HAVE
POINTED OUT WITH RESPECT TO THE LIKE PROVISION OF THE NATIONAL LABOR
RELATIONS ACT IN J.I. CASE CO. V. LABOR BOARD, SUPRA, 338, "THE VERY
PURPOSE OF PROVIDING BY STATUTE FOR THE COLLECTIVE AGREEMENT IS TO
SUPERSEDE THE TERMS OF SEPARATE AGREEMENTS OF EMPLOYEES WITH TERMS
WHICH REFLECT THE STRENGTH AND BARGAINING POWER AND SERVE THE WELFARE
OF THE GROUP.  ITS BENEFITS AND ADVANTAGES ARE OPEN TO EVERY EMPLOYEE
OF THE REPRESENTED UNIT...."  THE PURPOSE OF PROVIDING FOR A
REPRESENTATIVE IS TO SECURE THOSE BENEFITS FOR THOSE WHO ARE
REPRESENTED AND NOT TO DEPRIVE THEM OR ANY OF THEM OF THE BENEFITS OF
COLLECTIVE BARGAINING FOR THE ADVANTAGE OF THE REPRESENTATIVE OR THOSE
MEMBERS OF THE CRAFT WHO SELECTED IT.    AS THE NATIONAL MEDIATION
BOARD SAID IN IN THE MATTER OF REPRESENTATION OF EMPLOYEES OF THE ST.
PAUL UNION DEPOT COMPANY, CASE NO. R-635:  "ONCE A CRAFT OR CLASS HAS
DESIGNATED ITS REPRESENTATIVE, SUCH REPRESENTATIVE IS RESPONSIBLE UNDER
THE LAW TO ACT FOR ALL EMPLOYEES WITHIN THE CRAFT OR CLASS, THOSE WHO
ARE NOT MEMBERS OF THE REPRESENTED ORGANIZATION, AS WELL AS THOSE WHO
ARE MEMBERS."  FN2 

UNLESS THE LABOR UNION REPRESENTING A CRAFT OWES SOME DUTY TO
REPRESENT NON-UNION MEMBERS OF THE CRAFT, AT LEAST TO THE EXTENT OF NOT
DISCRIMINATING AGAINST THEM AS SUCH IN THE CONTRACTS WHICH IT MAKES AS
THEIR REPRESENTATIVE, THE MINORITY WOULD BE LEFT WITH NO MEANS OF
PROTECTING THEIR INTERESTS OR, INDEED, THEIR RIGHT TO EARN A LIVELIHOOD
BY PURSUING THE OCCUPATION IN WHICH THEY ARE EMPLOYED.  WHILE THE
MAJORITY OF THE CRAFT CHOOSES THE BARGAINING REPRESENTATIVE, WHEN
CHOSEN IT REPRESENTS, AS THE ACT BY ITS TERMS MAKES PLAIN, THE CRAFT OR
CLASS, AND NOT THE MAJORITY.  THE FAIR INTERPRETATION OF THE STATUTORY
LANGUAGE IS THAT THE ORGANIZATION CHOSEN TO REPRESENT A CRAFT IS TO
REPRESENT ALL ITS MEMBERS, THE MAJORITY AS WELL AS THE MINORITY, AND IT
IS TO ACT FOR AND NOT AGAINST THOSE WHOM IT REPRESENTS.  FN3  IT IS A
PRINCIPLE OF GENERAL APPLICATION THAT THE EXERCISE OF A GRANTED POWER
TO ACT IN BEHALF OF OTHERS INVOLVES THE ASSUMPTION TOWARD THEM OF A
DUTY TO EXERCISE THE POWER IN THEIR INTEREST AND BEHALF, AND THAT SUCH
A GRANT OF POWER WILL NOT BE DEEMED TO DISPENSE WITH ALL DUTY TOWARD
THOSE FOR WHOM IT IS EXERCISED UNLESS SO EXPRESSED. 

WE THINK THAT THE RAILWAY LABOR ACT IMPOSES UPON THE STATUTORY
REPRESENTATIVE OF A CRAFT AT LEAST AS EXACTING A DUTY TO PROTECT
EQUALLY THE INTERESTS OF THE MEMBERS OF THE CRAFT AS THE CONSTITUTION
IMPOSES UPON A LEGISLATURE TO GIVE EQUAL PROTECTION TO THE INTERESTS OF
THOSE FOR WHOM IT LEGISLATES.  CONGRESS HAS SEEN FIT TO CLOTHE THE
BARGAINING REPRESENTATIVE WITH POWERS COMPARABLE TO THOSE POSSESSED BY
A LEGISLATIVE BODY BOTH TO CREATE AND RESTRICT THE RIGHTS OF THOSE WHOM
IT REPRESENTS, CF. J.I. CASE CO. V. LABOR BOARD, SUPRA, 335, BUT IT HAS
ALSO IMPOSED ON THE REPRESENTATIVE A CORRESPONDING DUTY.  WE HOLD THAT
THE LANGUAGE OF THE ACT TO WHICH WE HAVE REFERRED, READ IN THE LIGHT OF
THE PURPOSES OF THE ACT, EXPRESSES THE AIM OF CONGRESS TO IMPOSE ON THE
BARGAINING REPRESENTATIVE OF A CRAFT OR CLASS OF EMPLOYEES THE DUTY TO
EXERCISE FAIRLY THE POWER CONFERRED UPON IT IN BEHALF OF ALL THOSE FOR
WHOM IT ACTS, WITHOUT HOSTILE DISCRIMINATION AGAINST THEM. 

THIS DOES NOT MEAN THAT THE STATUTORY REPRESENTATIVE OF A CRAFT IS
BARRED FROM MAKING CONTRACTS WHICH MAY HAVE UNFAVORABLE EFFECTS ON SOME
OF THE MEMBERS OF THE CRAFT REPRESENTED.  VARIATIONS IN THE TERMS OF
THE CONTRACT BASED ON DIFFERENCES RELEVANT TO THE AUTHORIZED PURPOSES
OF THE CONTRACT IN CONDITIONS TO WHICH THEY ARE TO BE APPLIED, SUCH AS
DIFFERENCES IN SENIORITY, THE TYPE OF WORK PERFORMED, THE COMPETENCE
AND SKILL WITH WHICH IT IS PERFORMED, ARE WITHIN THE SCOPE OF THE
BARGAINING REPRESENTATION OF A CRAFT, ALL OF WHOSE MEMBERS ARE NOT
IDENTICAL IN THEIR INTEREST OR MERIT.  CF. CARMICHAEL V. SOUTHERN COAL
CO., 301 U.S. 495, 509-510, 512 AND CASES CITED; WASHINGTON V. SUPERIOR
COURT, 289 U.S. 361, 366; METROPOLITAN CASUALTY CO. V. BROWNELL, 294
U.S. 580, 583.  WITHOUT ATTEMPTING TO MARK THE ALLOWABLE LIMITS OF
DIFFERENCES IN THE TERMS OF CONTRACTS BASED ON DIFFERENCES OF
CONDITIONS TO WHICH THEY APPLY, IT IS ENOUGH FOR PRESENT PURPOSES TO
SAY THAT THE STATUTORY POWER TO REPRESENT A CRAFT AND TO MAKE CONTRACTS
AS TO WAGES, HOURS AND WORKING CONDITIONS DOES NOT INCLUDE THE
AUTHORITY TO MAKE AMONG MEMBERS OF THE CRAFT DISCRIMINATIONS NOT BASED
ON SUCH RELEVANT DIFFERENCES.  HERE THE DISCRIMINATIONS BASED ON RACE
ALONE ARE OBVIOUSLY IRRELEVANT AND INVIDIOUS.  CONGRESS PLAINLY DID NOT
UNDERTAKE TO AUTHORIZE THE BARGAINING REPRESENTATIVE TO MAKE SUCH
DISCRIMINATIONS.  CF. YICK WO V. HOPKINS, 118 U.S. 356; YU CONG ENG V.
TRINIDAD, 271 U.S. 500; MISSOURI EX REL. GAINES V. CANADA, 305 U.S.
337; HILL V. TEXAS, 316 U.S. 400. 

THE REPRESENTATIVE WHICH THUS DISCRIMINATES MAY BE ENJOINED FROM SO
DOING, AND ITS MEMBERS MAY BE ENJOINED FROM TAKING THE BENEFIT OF SUCH
DISCRIMINATORY ACTION.  NO MORE IS THE RAILROAD BOUND BY OR ENTITLED TO
TAKE THE BENEFIT OF A CONTRACT WHICH THE BARGAINING REPRESENTATIVE IS
PROHIBITED BY THE STATUTE FROM MAKING.  IN BOTH CASES THE RIGHT
ASSERTED, WHICH IS DERIVED FROM THE DUTY IMPOSED BY THE STATUTE ON THE
BARGAINING REPRESENTATIVE, IS A FEDERAL RIGHT IMPLIED FROM THE STATUTE
AND THE POLICY WHICH IT HAS ADOPTED.  IT IS THE FEDERAL STATUTE WHICH
CONDEMNS AS UNLAWFUL THE BROTHERHOOD'S CONDUCT.  "THE EXTENT AND NATURE
OF THE LEGAL CONSEQUENCES OF THIS CONDEMNATION, THOUGH LEFT BY THE
STATUTE TO JUDICIAL DETERMINATION, ARE NEVERTHELESS TO BE DERIVED FROM
IT AND THE FEDERAL POLICY WHICH IT HAS ADOPTED."  DEITRICK V. GREANEY,
309 U.S. 190, 200-201; BOARD OF COUNTY COMMISSIONERS V. UNITED STATES,
308 U.S. 343; SOLA ELECTRIC CO. V. JEFFERSON CO., 317 U.S. 173, 176-7;
CF. CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363. 

SO LONG AS A LABOR UNION ASSUMES TO ACT AS THE STATUTORY
REPRESENTATIVE OF A CRAFT, IT CANNOT RIGHTLY REFUSE TO PERFORM THE
DUTY, WHICH IS INSEPARABLE FROM THE POWER OF REPRESENTATION CONFERRED
UPON IT, TO REPRESENT THE ENTIRE MEMBERSHIP OF THE CRAFT.  WHILE THE
STATUTE DOES NOT DENY TO SUCH A BARGAINING LABOR ORGANIZATION THE RIGHT
TO DETERMINE ELIGIBILITY TO ITS MEMBERSHIP, IT DOES REQUIRE THE UNION,
IN COLLECTIVE BARGAINING AND IN MAKING CONTRACTS WITH THE CARRIER, TO
REPRESENT NON-UNION OR MINORITY UNION MEMBERS OF THE CRAFT WITHOUT
HOSTILE DISCRIMINATION, FAIRLY, IMPARTIALLY, AND IN GOOD FAITH. 
WHEREVER NECESSARY TO THAT END, THE UNION IS REQUIRED TO CONSIDER
REQUESTS OF NONUNION MEMBERS OF THE CRAFT AND EXPRESSIONS OF THEIR
VIEWS WITH RESPECT TO COLLECTIVE BARGAINING WITH THE EMPLOYER AND TO
GIVE TO THEM NOTICE OF AND OPPORTUNITY FOR HEARING UPON ITS PROPOSED
ACTION. 

SINCE THE RIGHT ASSERTED BY PETITIONER "IS  ...  CLAIMED UNDER THE
CONSTITUTION" AND A "STATUTE OF THE UNITED STATES," THE DECISION OF THE
ALABAMA COURT, ADVERSE TO THAT CONTENTION IS REVIEWABLE HERE UNDER SEC.
237(B) OF THE JUDICIAL CODE, UNLESS THE RAILWAY LABOR ACT ITSELF HAS
EXCLUDED PETITIONER'S CLAIMS FROM JUDICIAL CONSIDERATION.  THE QUESTION
HERE PRESENTED IS NOT ONE OF A JURISDICTIONAL DISPUTE, DETERMINABLE
UNDER THE ADMINISTRATIVE SCHEME SET UP BY THE ACT, CF. SWITCHMEN'S
UNION V. NATIONAL MEDIATION BOARD, 320 U.S. 297; GENERAL COMMITTEE V.
M.-K.-T.R. CO., 320 U.S. 323; GENERAL COMMITTEE V. SOUTHERN PACIFIC
CO., 320 U.S. 338; BROTHERHOOD OF CLERKS V. UNITED TRANSPORT SERVICE
EMPLOYEES, 320 U.S. 715, 816, OR RESTRICTED BY THE ACT TO VOLUNTARY
SETTLEMENT BY RECOURSE TO THE TRADITIONAL IMPLEMENTS OF MEDIATION,
CONCILIATION AND ARBITRATION.  GENERAL COMMITTEE V. M.-K.-T.R. CO.,
SUPRA, 332, 337.  THERE IS NO QUESTION HERE OF WHO IS ENTITLED TO
REPRESENT THE CRAFT, OR WHO ARE MEMBERS OF IT, ISSUES WHICH HAVE BEEN
RELEGATED FOR SETTLEMENT TO THE MEDIATION BOARD, SWITCHMEN'S UNION V.
NATIONAL MEDIATION BOARD, SUPRA; GENERAL COMMITTEE V. M.-K.-T.R. CO.,
SUPRA.  NOR ARE THERE DIFFERENCES AS TO THE INTERPRETATION OF THE
CONTRACT WHICH BY THE ACT ARE COMMITTED TO THE JURISDICTION OF THE
RAILROAD ADJUSTMENT BOARD. 

BOARD OF "DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A
CARRIER OR CARRIERS GROWING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS," MAKES NO REFERENCE TO
DISPUTES BETWEEN EMPLOYEES AND THEIR REPRESENTATIVE.  EVEN THOUGH THE
DISPUTE BETWEEN THE RAILROAD AND THE PETITIONER WERE TO BE HEARD BY THE
ADJUSTMENT BOARD, THAT BOARD COULD NOT GIVE THE ENTIRE RELIEF HERE
SOUGHT.  THE ADJUSTMENT BOARD HAS CONSISTENTLY DECLINED IN MORE THAN
400 CASES TO ENTERTAIN GRIEVANCE COMPLAINTS BY INDIVIDUAL MEMBERS OF A
CRAFT REPRESENTED BY A LABOR ORGANIZATION.  "THE ONLY WAY THAT AN
INDIVIDUAL MAY PREVAIL IS BY TAKING HIS CASE TO THE UNION AND CAUSING
THE UNION TO CARRY IT THROUGH TO THE BOARD."  ADMINISTRATIVE PROCEDURE
IN GOVERNMENT AGENCIES, S. DOC. NO. 10, 77TH CONG., 1ST SESS., PT. 4,
P. 7.  WHETHER OR NOT JUDICIAL POWER MIGHT BE EXERTED TO REQUIRE THE
ADJUSTMENT BOARD TO CONSIDER INDIVIDUAL GRIEVANCES, AS TO WHICH WE
EXPRESS NO OPINION, WE CANNOT SAY THAT THERE IS AN ADMINISTRATIVE
REMEDY AVAILABLE TO PETITIONER OR THAT RESORT TO SUCH PROCEEDINGS IN
ORDER TO SECURE A POSSIBLE ADMINISTRATIVE REMEDY, WHICH IS WITHHELD OR
DENIED, IS PREREQUISITE TO RELIEF IN EQUITY.  FURTHER, SINCE SEC. 3,
FIRST (C) PERMITS THE NATIONAL LABOR ORGANIZATIONS CHOSEN BY THE
MAJORITY OF THE CRAFTS TO "PRESCRIBE THE RULES UNDER WHICH THE LABOR
MEMBERS OF THE ADJUSTMENT BOARD SHALL BE SELECTED" AND TO "SELECT SUCH
MEMBERS AND DESIGNATE THE DIVISION ON WHICH EACH MEMBER SHALL SERVE,"
THE NEGRO FIREMEN WOULD BE REQUIRED TO APPEAR BEFORE A GROUP WHICH IS
IN LARGE PART CHOSEN BY THE RESPONDENTS AGAINST WHOM THEIR REAL
COMPLAINT IS MADE.  IN ADDITION SEC. 3, SECOND PROVIDES THAT A CARRIER
AND A CLASS OR CRAFT OF EMPLOYEES, "ALL ACTING THROUGH THEIR
REPRESENTATIVES, SELECTED IN ACCORDANCE WITH THE PROVISIONS OF THIS
ACT," MAY AGREE TO THE ESTABLISHMENT OF A REGIONAL BOARD OF ADJUSTMENT
FOR THE PURPOSE OF ADJUSTING DISPUTES OF THE TYPE WHICH MAY BE BROUGHT
BEFORE THE ADJUSTMENT BOARD.  IN THIS WAY THE CARRIER AND THE
REPRESENTATIVE AGAINST WHOM THE NEGRO FIREMEN HAVE COMPLAINED HAVE
POWER TO SUPERSEDE ENTIRELY THE ADJUSTMENT BOARD'S PROCEDURE AND TO
CREATE A TRIBUNAL OF THEIR OWN SELECTION TO INTERPRET AND APPLY THE
AGREEMENTS NOW COMPLAINED OF TO WHICH THEY ARE THE ONLY PARTIES.  WE
CANNOT SAY THAT A HEARING, IF AVAILABLE, BEFORE EITHER OF THESE
TRIBUNALS WOULD CONSTITUTE AN ADEQUATE ADMINISTRATIVE REMEDY.  CF.
TUMEY V. OHIO, 273 U.S. 510.  THERE IS NO ADMINISTRATIVE MEANS BY WHICH
THE NEGRO FIREMEN CAN SECURE SEPARATE REPRESENTATION FOR THE PURPOSES
OF COLLECTIVE BARGAINING.  FOR THE MEDIATION BOARD "HAS DEFINITELY
RULED THAT A CRAFT OR CLASS OF EMPLOYEES MAY NOT BE DIVIDED INTO TWO OR
MORE ON THE BASIS OF RACE OR COLOR FOR THE PURPOSE OF CHOOSING
REPRESENTATIVES."  FN4 

IN THE ABSENCE OF ANY AVAILABLE ADMINISTRATIVE REMEDY, THE RIGHT HERE
ASSERTED, TO A REMEDY FOR BREACH OF THE STATUTORY DUTY OF THE
BARGAINING REPRESENTATIVE TO REPRESENT AND ACT FOR THE MEMBERS OF A
CRAFT, IS OF JUDICIAL COGNIZANCE.  THAT RIGHT WOULD BE SACRIFICED OR
OBLITERATED IF IT WERE WITHOUT THE REMEDY WHICH COURTS CAN GIVE FOR
BREACH OF SUCH A DUTY OR OBLIGATION AND WHICH IT IS THEIR DUTY TO GIVE
IN CASES IN WHICH THEY HAVE JURISDICTION.  SWITCHMEN'S UNION V.
NATIONAL MEDIATION BOARD, SUPRA, 300; STARK V. WICKARD, 321 U.S. 288,
306-7.  HERE, UNLIKE GENERAL COMMITTEE V. M.-K.-T.R. CO., SUPRA, AND
GENERAL COMMITTEE V. SOUTHERN PACIFIC CO., SUPRA, THERE CAN BE NO DOUBT
OF THE JUSTICIABILITY OF THESE CLAIMS.  AS WE NOTED IN GENERAL
COMMITTEE V. M.-K.-T.R. CO., SUPRA, 331, THE STATUTORY PROVISIONS WHICH
ARE IN ISSUE ARE STATED IN THE FORM OF COMMANDS.  FOR THE PRESENT
COMMAND THERE IS NO MODE OF ENFORCEMENT OTHER THAN RESORT TO THE
COURTS, WHOSE JURISDICTION AND DUTY TO AFFORD A REMEDY FOR A BREACH OF
STATUTORY DUTY ARE LEFT UNAFFECTED.  THE RIGHT IS ANALOGOUS TO THE
STATUTORY RIGHT OF EMPLOYEES TO REQUIRE THE EMPLOYER TO BARGAIN WITH
THE STATUTORY REPRESENTATIVE OF A CRAFT, A RIGHT WHICH THIS COURT HAS
ENFORCED AND PROTECTED BY ITS INJUNCTION IN TEXAS & NEW ORLEANS R. CO.
V. BROTHERHOOD OF CLERKS, SUPRA, 556-557, 560, AND IN VIRGINIAN R. CO.
V. SYSTEM FEDERATION, SUPRA, 548, AND LIKE IT IS ONE FOR WHICH THERE IS
NO AVAILABLE ADMINISTRATIVE REMEDY. 

WE CONCLUDE THAT THE DUTY WHICH THE STATUTE IMPOSES ON A UNION
REPRESENTATIVE OF A CRAFT TO REPRESENT THE INTERESTS OF ALL ITS MEMBERS
STANDS ON NO DIFFERENT FOOTING AND THAT THE STATUTE CONTEMPLATES RESORT
TO THE USUAL JUDICIAL REMEDIES OF INJUNCTION AND AWARD OF DAMAGES WHEN
APPROPRIATE FOR BREACH OF THAT DUTY. 

THE JUDGMENT IS ACCORDINGLY REVERSED AND REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  THE RESPONDENTS URGE THAT THE CIRCUIT COURT SUSTAINED THEIR
DEMURRERS ON THE GROUND THAT THE SUIT COULD NOT BE MAINTAINED AGAINST
THE BROTHERHOOD, AN UNINCORPORATED ASSOCIATION, SINCE BY ALABAMA
STATUTE SUCH AN ASSOCIATION CANNOT BE SUED UNLESS THE ACTION LIES
AGAINST ALL ITS MEMBERS INDIVIDUALLY, AND ON SEVERAL OTHER STATE-LAW
GROUNDS.  THEY ARGUE ACCORDINGLY THAT THE JUDGMENT OF AFFIRMANCE OF THE
STATE SUPREME COURT MAY BE RESTED ON AN ADEQUATE NON-FEDERAL GROUND. 
AS THAT COURT SPECIFICALLY RESTED ITS DECISION ON THE SOLE GROUND THAT
THE RAILWAY LABOR ACT PLACES NO DUTY UPON THE BROTHERHOOD TO PROTECT
PETITIONER AND OTHER NEGRO FIREMEN FROM THE ALLEGED DISCRIMINATORY
TREATMENT, THE JUDGMENT RESTS WHOLLY ON A FEDERAL GROUND, TO WHICH WE
CONFINE OUR REVIEW.  GRAYSON V. HARRIS, 267 U.S. 352, 358;
INTERNATIONAL STEEL CO. V. NATIONAL SURETY CO., 297 U.S. 657, 666;
INDIANA EX REL. ANDERSON V. BRAND, 303 U.S. 95, 98, 99 AND CASES
CITED.    FN2  THE MEDIATION BOARD'S DECISION IN THIS CASE WAS SET
ASIDE IN BROTHERHOOD OF CLERKS V. UNITED TRANSPORT SERVICE EMPLOYEES,
137 F.2D 817, REVERSED ON JURISDICTIONAL GROUNDS, 320 U.S. 715.  THE
COURT OF APPEALS WAS OF THE OPINION THAT A REPRESENTATIVE IS NOT ONLY
REQUIRED TO ACT IN BEHALF OF ALL THE EMPLOYEES IN A BARGAINING UNIT,
BUT THAT A LABOR ORGANIZATION WHICH EXCLUDES A MINORITY OF A CRAFT FROM
ITS MEMBERSHIP HAS NO STANDING TO ACT AS SUCH REPRESENTATIVE OF THE
MINORITY. 

THE ACT HAS BEEN SIMILARLY INTERPRETED BY THE EMERGENCY BOARD
REFERRED TO IN GENERAL COMMITTEE V. SOUTHERN PACIFIC CO., 320 U.S. 338,
340, 342-343 N. IT DECLARED IN 1937:  "WHEN A CRAFT OR CLASS, THROUGH
REPRESENTATIVES CHOSEN BY A MAJORITY, NEGOTIATES A CONTRACT WITH A
CARRIER, ALL MEMBERS OF THE CRAFT OR CLASS SHARE IN THE RIGHTS SECURED
BY THE CONTRACT, REGARDLESS OF THEIR AFFILIATIONS WITH ANY ORGANIZATION
OF EMPLOYEES  ...  THE REPRESENTATIVES OF THE MAJORITY REPRESENT THE
WHOLE CRAFT OR CLASS IN THE MAKING OF AN AGREEMENT FOR THE BENEFIT OF
ALL  ...." 

FN3  COMPARE THE HOUSE COMMITTEE REPORT ON THE N.L.R.A. (H. REP. NO.
1147, 74TH CONG., 1ST SESS., PP. 20-22) INDICATING THAT ALTHOUGH THE
PRINCIPLE OF MAJORITY RULE "WRITTEN INTO THE STATUTE BOOKS BY CONGRESS
IN THE RAILWAY LABOR ACT OF 1934" WAS TO BE APPLICABLE TO THE
BARGAINING UNIT UNDER THE N.L.R.A., THE EMPLOYER WAS REQUIRED TO GIVE
"EQUALLY ADVANTAGEOUS TERMS TO NONMEMBERS OF THE LABOR ORGANIZATION
NEGOTIATING THE AGREEMENT."  SEE ALSO THE SENATE COMMITTEE REPORT ON
THE N.L.R.A. TO THE SAME EFFECT.  S. REP. NO. 573, 74TH CONG., 1ST
SESS., P. 13. 

FN4  NATIONAL MEDIATION BOARD, THE RAILWAY LABOR ACT AND THE NATIONAL
MEDIATION BOARD, P. 17; SEE IN THE MATTER OF REPRESENTATION OF
EMPLOYEES OF THE CENTRAL OF GEORGIA RY. CO., CASE NO. R-234; IN THE
MATTER OF REPRESENTATION OF EMPLOYEES OF THE ST. PAUL UNION DEPOT CO.,
CASE NO. R-635, SET ASIDE IN BROTHERHOOD OF CLERKS V. UNITED TRANSPORT
SERVICE EMPLOYEES, 137 F.2D 817, REVERSED ON JURISDICTIONAL GROUNDS,
320 U.S. 715. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE MURPHY, CONCURRING. 

THE ECONOMIC DISCRIMINATION AGAINST NEGROES PRACTICED BY THE
BROTHERHOOD AND THE RAILROAD UNDER COLOR OF CONGRESSIONAL AUTHORITY
RAISES A GRAVE CONSTITUTIONAL ISSUE THAT SHOULD BE SQUARELY FACED. 

THE UTTER DISREGARD FOR THE DIGNITY AND THE WELL-BEING OF COLORED
CITIZENS SHOWN BY THIS RECORD IS SO PRONOUNCED AS TO DEMAND THE
INVOCATION OF CONSTITUTIONAL CONDEMNATION.  TO DECIDE THE CASE AND TO
ANALYZE THE STATUTE SOLELY UPON THE BASIS OF LEGAL NICETIES, WHILE
REMAINING MUTE AND PLACID AS TO THE OBVIOUS AND OPPRESSIVE DEPRIVATION
OF CONSTITUTIONAL GUARANTEES, IS TO MAKE THE JUDICIAL FUNCTION
SOMETHING LESS THAN IT SHOULD BE. 

THE CONSTITUTIONAL PROBLEM INHERENT IN THIS INSTANCE IS CLEAR. 
CONGRESS, THROUGH THE RAILWAY LABOR ACT, HAS CONFERRED UPON THE UNION
SELECTED BY A MAJORITY OF A CRAFT OR CLASS OF RAILWAY WORKERS THE POWER
TO REPRESENT THE ENTIRE CRAFT OR CLASS IN ALL COLLECTIVE BARGAINING
MATTERS.  WHILE SUCH A UNION IS ESSENTIALLY A PRIVATE ORGANIZATION, ITS
POWER TO REPRESENT AND BIND ALL MEMBERS OF A CLASS OR CRAFT IS DERIVED
SOLELY FROM CONGRESS.  THE ACT CONTAINS NO LANGUAGE WHICH DIRECTS THE
MANNER IN WHICH THE BARGAINING REPRESENTATIVE SHALL PERFORM ITS
DUTIES.  BUT IT CANNOT BE ASSUMED THAT CONGRESS MEANT TO AUTHORIZE THE
REPRESENTATIVE TO ACT SO AS TO IGNORE RIGHTS GUARANTEED BY THE
CONSTITUTION.  OTHERWISE THE ACT WOULD BEAR THE STIGMA OF
UNCONSTITUTIONALITY UNDER THE FIFTH AMENDMENT IN THIS RESPECT.  FOR
THAT REASON I AM WILLING TO READ THE STATUTE AS NOT PERMITTING OR
ALLOWING ANY ACTION BY THE BARGAINING REPRESENTATIVE IN THE EXERCISE OF
ITS DELEGATED POWERS WHICH WOULD IN EFFECT VIOLATE THE CONSTITUTIONAL
RIGHTS OF INDIVIDUALS. 

IF THE COURT'S CONSTRUCTION OF THE STATUTE RESTS UPON THIS BASIS, I
AGREE.  BUT I AM NOT SURE THAT SUCH IS THE BASIS.  SUFFICE IT TO SAY,
HOWEVER, THAT THIS CONSTITUTIONAL ISSUE CANNOT BE LIGHTLY DISMISSED. 
THE CLOAK OF RACISM SURROUNDING THE ACTIONS OF THE BROTHERHOOD IN
REFUSING MEMBERSHIP TO NEGROES AND IN ENTERING INTO AND ENFORCING
AGREEMENTS DISCRIMINATING AGAINST THEM, ALL UNDER THE GUISE OF
CONGRESSIONAL AUTHORITY, STILL REMAINS.  NO STATUTORY INTERPRETATION
CAN ERASE THIS UGLY EXAMPLE OF ECONOMIC CRUELTY AGAINST COLORED
CITIZENS OF THE UNITED STATES.  NOTHING CAN DESTROY THE FACT THAT THE
ACCIDENT OF BIRTH HAS BEEN USED AS THE BASIS TO ABUSE INDIVIDUAL RIGHTS
BY AN ORGANIZATION PURPORTING TO ACT IN CONFORMITY WITH ITS
CONGRESSIONAL MANDATE.  ANY ATTEMPT TO INTERPRET THE ACT MUST TAKE THAT
FACT INTO ACCOUNT AND MUST REALIZE THAT THE CONSTITUTIONALITY OF THE
STATUTE IN THIS RESPECT DEPENDS UPON THE ANSWER GIVEN. 

THE CONSTITUTION VOICES ITS DISAPPROVAL WHENEVER ECONOMIC
DISCRIMINATION IS APPLIED UNDER AUTHORITY OF LAW AGAINST ANY RACE,
CREED OR COLOR.  A SOUND DEMOCRACY CANNOT ALLOW SUCH DISCRIMINATION TO
GO UNCHALLENGED.  RACISM IS FAR TOO VIRULENT TODAY TO PERMIT THE
SLIGHTEST REFUSAL, IN THE LIGHT OF A CONSTITUTION THAT ABHORS IT, TO
EXPOSE AND CONDEMN IT WHEREVER IT APPEARS IN THE COURSE OF A STATUTORY
INTERPRETATION. 
..END :
























TUNSTALL V. BROTHERHOOD, 323 U.S. 210 


NO. 37.  ARGUED NOVEMBER 14, 1944.  - DECIDED DECEMBER 18, 1944.  - 140
F.2D 35, REVERSED. 


1.  THE RAILWAY LABOR ACT IMPOSES ON A LABOR ORGANIZATION, ACTING AS
THE EXCLUSIVE BARGAINING REPRESENTATIVE OF A CRAFT OR CLASS OF RAILWAY
EMPLOYEES, THE DUTY TO REPRESENT ALL THE EMPLOYEES IN THE CRAFT WITHOUT
DISCRIMINATION BECAUSE OF RACE.  STEELE V. LOUISVILLE & NASHVILLE R.
CO., ANTE, P. 192.  P. 211. 

2.  THE FEDERAL COURTS HAVE JURISDICTION TO ENTERTAIN A NON-DIVERSITY
SUIT IN WHICH PETITIONER, A RAILWAY EMPLOYEE SUBJECT TO THE RAILWAY
LABOR ACT, SEEKS REMEDIES BY INJUNCTION AND AWARD OF DAMAGES FOR THE
FAILURE OF THE UNION BARGAINING REPRESENTATIVE OF HIS CRAFT TO PERFORM
THE DUTY IMPOSED ON IT BY THE ACT, TO REPRESENT PETITIONER AND OTHER
MEMBERS OF HIS CRAFT WITHOUT DISCRIMINATION BECAUSE OF RACE.  P. 212. 

3.  PETITIONER'S CAUSE OF ACTION IS NOT EXCLUDED BY THE RAILWAY LABOR
ACT FROM THE CONSIDERATION OF THE FEDERAL COURTS.  P. 213. 

4.  THE RIGHT ASSERTED BY THE PETITIONER IS DERIVED FROM THE DUTY
IMPOSED BY THE RAILWAY LABOR ACT ON THE BARGAINING REPRESENTATIVE, AND
IS A FEDERAL RIGHT IMPLIED FROM THE STATUTE AND THE POLICY WHICH IT HAS
ADOPTED.  P. 213. 

5.  THE CASE IS THEREFORE ONE ARISING UNDER A LAW REGULATING
COMMERCE, OF WHICH THE FEDERAL COURTS ARE GIVEN JURISDICTION BY 28
U.S.C. SEC. 41(8).  P. 213. 

6.  THE PETITIONER HAS NO ADMINISTRATIVE REMEDY AVAILABLE, AND THE
BILL OF COMPLAINT STATES A CAUSE OF ACTION ENTITLING HIM TO RELIEF.  P.
213. 

TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 322 U.S. 721, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A COMPLAINT FOR WANT OF JURISDICTION. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO STEELE V. LOUISVILLE & NASHVILLE R. CO.,
ANTE, P. 192, IN WHICH WE ANSWERED IN THE AFFIRMATIVE A QUESTION ALSO
PRESENTED IN THIS CASE.  THE QUESTION IS WHETHER THE RAILWAY LABOR ACT,
48 STAT. 1185, 45 U.S.C. SECS. 151 ET SEQ., IMPOSES ON A LABOR
ORGANIZATION, ACTING AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF A
CRAFT OR CLASS OF RAILWAY EMPLOYEES, THE DUTY TO REPRESENT ALL THE
EMPLOYEES IN THE CRAFT WITHOUT DISCRIMINATION BECAUSE OF THEIR RACE. 
THE FURTHER QUESTION IN THIS CASE IS WHETHER THE FEDERAL COURTS HAVE
JURISDICTION TO ENTERTAIN A NONDIVERSITY SUIT IN WHICH PETITIONER, A
RAILWAY EMPLOYEE SUBJECT TO THE ACT, SEEKS REMEDIES BY INJUNCTION AND
AWARD OF DAMAGES FOR THE FAILURE OF THE UNION BARGAINING REPRESENTATIVE
OF HIS CRAFT TO PERFORM THE DUTY IMPOSED ON IT BY THE ACT, TO REPRESENT
PETITIONER AND OTHER MEMBERS OF HIS CRAFT WITHOUT DISCRIMINATION
BECAUSE OF RACE. 

PETITIONER, A NEGRO FIREMAN, EMPLOYED BY THE NORFOLK & SOUTHERN
RAILWAY, BROUGHT THIS SUIT IN THE DISTRICT COURT AGAINST THE RAILWAY,
THE BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN AND CERTAIN OF ITS
SUBSIDIARY LODGES, AND ONE OF ITS OFFICERS, SETTING UP, IN ALL MATERIAL
RESPECTS, A CAUSE OF ACTION LIKE THAT ALLEGED IN THE STEELE CASE.  THE
BROTHERHOOD, A LABOR UNION, IS THE DESIGNATED BARGAINING REPRESENTATIVE
UNDER THE RAILWAY LABOR ACT, FOR THE CRAFT OF FIREMEN OF WHICH
PETITIONER IS A MEMBER, AND IS ACCEPTED AS SUCH BY THE RAILWAY AND ITS
EMPLOYEES. 

ACTING AS SUCH THE BROTHERHOOD GAVE TO THE RAILWAY THE NOTICE OF
MARCH 28, 1940, AND LATER ENTERED INTO THE CONTRACT OF FEBRUARY 18,
1941 AND ITS SUBSEQUENT MODIFICATIONS, ALL OF WHICH WERE THE SUBJECT OF
OUR CONSIDERATION IN THE STEELE CASE.  PETITIONER COMPLAINS OF THE
DISCRIMINATORY APPLICATION OF THE CONTRACT PROVISIONS TO HIM AND OTHER
NEGRO MEMBERS OF HIS CRAFT IN FAVOR OF "PROMOTABLE," I.E. WHITE,
FIREMEN, BY WHICH HE HAS BEEN DEPRIVED OF HIS PRE-EXISTING SENIORITY
RIGHTS, REMOVED FROM THE INTERSTATE PASSENGER RUN TO WHICH HE WAS
ASSIGNED AND THEN ASSIGNED TO MORE ARDUOUS AND DIFFICULT WORK WITH
LONGER HOURS IN YARD SERVICE, HIS PLACE IN THE PASSENGER SERVICE BEING
FILLED BY A WHITE FIREMAN. 

HE ALLEGES THAT THE CONTRACT WAS SIGNED AND PUT INTO EFFECT WITHOUT
NOTICE TO HIM OR OTHER NEGRO MEMBERS OF HIS CRAFT, AND WITHOUT
OPPORTUNITY FOR THEM TO BE HEARD WITH RESPECT TO ITS TERMS, AND THAT
HIS PROTESTS AND DEMANDS FOR RELIEF TO THE RAILWAY AND THE BROTHERHOOD
HAVE BEEN UNAVAILING.  PETITIONER PRAYS FOR A DECLARATORY ADJUDICATION
OF HIS RIGHTS, FOR AN INJUNCTION RESTRAINING THE DISCRIMINATORY
PRACTICES COMPLAINED OF, FOR AN AWARD OF DAMAGES AND FOR OTHER RELIEF. 

THE DISTRICT COURT DISMISSED THE SUIT FOR WANT OF JURISDICTION.  THE
CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT AFFIRMED, 140 F.2D 35,
ON THE GROUND THAT THE FEDERAL COURTS ARE WITHOUT JURISDICTION OF THE
CAUSE, THERE BEING NO DIVERSITY OF CITIZENSHIP AND, INSOFAR AS THE SUIT
IS GROUNDED ON THE WRONGFUL ACTS OF RESPONDENTS, IT IS NOT ONE ARISING
UNDER THE LAWS OF THE UNITED STATES, EVEN THOUGH THE UNION WAS CHOSEN
AS BARGAINING REPRESENTATIVE PURSUANT TO THE RAILWAY LABOR ACT.  SEE
GULLY V. FIRST NATIONAL BANK, 299 U.S. 109, 112, 114. 

FOR THE REASONS STATED IN OUR OPINION IN THE STEELE CASE THE RAILWAY
LABOR ACT ITSELF DOES NOT EXCLUDE THE PETITIONER'S CAUSE OF ACTION FROM
THE CONSIDERATION OF THE FEDERAL COURTS.  CF. SWITCHMEN'S UNION V.
NATIONAL MEDIATION BOARD, 320 U.S. 297; GENERAL COMMITTEE V. M.-K.-T.R.
CO., 320 U.S. 323; GENERAL COMMITTEE V. SOUTHERN PACIFIC CO., 320 U.S.
338; BROTHERHOOD OF CLERKS V. UNITED TRANSPORT SERVICE EMPLOYEES, 320
U.S. 715, 816, WITH TEXAS & NEW ORLEANS R. CO. V. BROTHERHOOD OF
RAILWAY CLERKS, 281 U.S. 548; VIRGINIAN R. CO. V. SYSTEM FEDERATION,
300 U.S. 515. 

WE ALSO HOLD THAT THE RIGHT ASSERTED BY PETITIONER WHICH IS DERIVED
FROM THE DUTY IMPOSED BY THE RAILWAY LABOR ACT ON THE BROTHERHOOD, AS
BARGAINING REPRESENTATIVE, IS A FEDERAL RIGHT IMPLIED FROM THE STATUTE
AND THE POLICY WHICH IT HAS ADOPTED.  IT IS THE FEDERAL STATUTE WHICH
CONDEMNS AS UNLAWFUL THE BROTHERHOOD'S CONDUCT.  "THE EXTENT AND NATURE
OF THE LEGAL CONSEQUENCES OF THIS CONDEMNATION, THOUGH LEFT BY THE
STATUTE TO JUDICIAL DETERMINATION, ARE NEVERTHELESS TO BE DERIVED FROM
IT AND THE FEDERAL POLICY WHICH IT HAS ADOPTED."  DEITRICK V. GREANEY,
309 U.S. 190, 200-201; BOARD OF COUNTY COMMISSIONERS V. UNITED STATES,
308 U.S. 343; SOLA ELECTRIC CO. V. JEFFERSON CO., 317 U.S. 173, 176-7;
CF. CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363.  THE CASE IS
THEREFORE ONE ARISING UNDER A LAW REGULATING COMMERCE OF WHICH THE
FEDERAL COURTS ARE GIVEN JURISDICTION BY 28 U.S.C. SEC. 41(8), JUDICIAL
CODE SEC. 24(8); MULFORD V. SMITH, 307 U.S. 38, 46; PEYTON V. RAILWAY
EXPRESS AGENCY, 316 U.S. 350; CF. ILLINOIS STEEL CO. V. B. & O.R. CO.,
320 U.S. 508, 510-511. 

FOR THE REASONS ALSO STATED IN OUR OPINION IN THE STEELE CASE THE
PETITIONER IS WITHOUT AVAILABLE ADMINISTRATIVE REMEDIES, RESORT TO
WHICH, WHEN AVAILABLE, IS PREREQUISITE TO EQUITABLE RELIEF IN THE
FEDERAL COURTS.  GOLDSMITH V. BOARD OF TAX APPEALS, 270 U.S. 117, 123;
PORTER V. INVESTORS SYNDICATE, 286 U.S. 461, 471; 287 U.S. 346; NATURAL
GAS CO. V. SLATTERY, 302 U.S. 300, 309; ATLAS INS. CO. V. SOUTHERN,
INC., 306 U.S. 563. 

WE HOLD, AS IN THE STEELE CASE, THAT THE BILL OF COMPLAINT STATES A
CAUSE OF ACTION ENTITLING PLAINTIFF TO RELIEF.  AS OTHER JURISDICTIONAL
QUESTIONS WERE RAISED IN THE COURTS BELOW WHICH HAVE NOT BEEN
CONSIDERED BY THE COURT OF APPEALS, THE CASE WILL BE REMANDED TO THAT
COURT FOR FURTHER PROCEEDINGS.  REVERSED. 

MR. JUSTICE MURPHY CONCURS IN THE RESULT FOR THE REASONS EXPRESSED IN
HIS CONCURRING OPINION IN STEELE V. LOUISVILLE & NASHVILLE R. CO.,
ANTE, P. 208. 
..END :




















KOREMATSU V. UNITED STATES, 323 U.S. 214 


NO. 22.  ARGUED OCTOBER 11, 12, 1944.  - DECIDED DECEMBER 18, 1944.  -
140 F.2D 289, AFFIRMED. 


1.  CIVILIAN EXCLUSION ORDER NO. 34 WHICH, DURING A STATE OF WAR WITH
JAPAN AND AS A PROTECTION AGAINST ESPIONAGE AND SABOTAGE, WAS
PROMULGATED BY THE COMMANDING GENERAL OF THE WESTERN DEFENSE COMMAND
UNDER AUTHORITY OF EXECUTIVE ORDER NO. 9066 AND THE ACT OF MARCH 21,
1942, AND WHICH DIRECTED THE EXCLUSION AFTER MAY 9, 1942 FROM A
DESCRIBED WEST COAST MILITARY AREA OF ALL PERSONS OF JAPANESE ANCESTRY,
HELD CONSTITUTIONAL AS OF THE TIME IT WAS MADE AND WHEN THE PETITIONER
AN AMERICAN CITIZEN OF JAPANESE DESCENT WHOSE HOME WAS IN THE
DESCRIBED AREA - VIOLATED IT.  P. 219. 

2.  THE PROVISIONS OF OTHER ORDERS REQUIRING PERSONS OF JAPANESE
ANCESTRY TO REPORT TO ASSEMBLY CENTERS AND PROVIDING FOR THE DETENTION
OF SUCH PERSONS IN ASSEMBLY AND RELOCATION CENTERS WERE SEPARATE, AND
THEIR VALIDITY IS NOT IN ISSUE IN THIS PROCEEDING.  P. 222. 

3.  EVEN THOUGH EVACUATION AND DETENTION IN THE ASSEMBLY CENTER WERE
INSEPARABLE, THE ORDER UNDER WHICH THE PETITIONER WAS CONVICTED WAS
NEVERTHELESS VALID.  P. 223. 

KOREMATSU V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 321 U.S. 760, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
CONVICTION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, AN AMERICAN CITIZEN OF JAPANESE DESCENT, WAS
CONVICTED IN A FEDERAL DISTRICT COURT FOR REMAINING IN SAN LEANDRO,
CALIFORNIA, A "MILITARY AREA," CONTRARY TO CIVILIAN EXCLUSION ORDER NO.
34 OF THE COMMANDING GENERAL OF THE WESTERN COMMAND, U.S. ARMY, WHICH
DIRECTED THAT AFTER MAY 9, 1942, ALL PERSONS OF JAPANESE ANCESTRY
SHOULD BE EXCLUDED FROM THAT AREA.  NO QUESTION WAS RAISED AS TO
PETITIONER'S LOYALTY TO THE UNITED STATES.  THE CIRCUIT COURT OF
APPEALS AFFIRMED,  FN1  AND THE IMPORTANCE OF THE CONSTITUTIONAL
QUESTION INVOLVED CAUSED US TO GRANT CERTIORARI. 

IT SHOULD BE NOTED, TO BEGIN WITH, THAT ALL LEGAL RESTRICTIONS WHICH
CURTAIL THE CIVIL RIGHTS OF A SINGLE RACIAL GROUP ARE IMMEDIATELY
SUSPECT.  THAT IS NOT TO SAY THAT ALL SUCH RESTRICTIONS ARE
UNCONSTITUTIONAL.  IT IS TO SAY THAT COURTS MUST SUBJECT THEM TO THE
MOST RIGID SCRUTINY.  PRESSING PUBLIC NECESSITY MAY SOMETIMES JUSTIFY
THE EXISTENCE OF SUCH RESTRICTIONS; RACIAL ANTAGONISM NEVER CAN. 

IN THE INSTANT CASE PROSECUTION OF THE PETITIONER WAS BEGUN BY
INFORMATION CHARGING VIOLATION OF AN ACT OF CONGRESS, OF MARCH 21,
1942, 56 STAT. 173, WHICH PROVIDES THAT 

"...  WHOEVER SHALL ENTER, REMAIN IN, LEAVE, OR COMMIT ANY ACT IN ANY
MILITARY AREA OR MILITARY ZONE PRESCRIBED, UNDER THE AUTHORITY OF AN
EXECUTIVE ORDER OF THE PRESIDENT, BY THE SECRETARY OF WAR, OR BY ANY
MILITARY COMMANDER DESIGNATED BY THE SECRETARY OF WAR, CONTRARY TO THE
RESTRICTIONS APPLICABLE TO ANY SUCH AREA OR ZONE OR CONTRARY TO THE
ORDER OF THE SECRETARY OF WAR OR ANY SUCH MILITARY COMMANDER, SHALL, IF
IT APPEARS THAT HE KNEW OR SHOULD HAVE KNOWN OF THE EXISTENCE AND
EXTENT OF THE RESTRICTIONS OR ORDER AND THAT HIS ACT WAS IN VIOLATION
THEREOF, BE GUILTY OF A MISDEMEANOR AND UPON CONVICTION SHALL BE LIABLE
TO A FINE OF NOT TO EXCEED $5,000 OR TO IMPRISONMENT FOR NOT MORE THAN
ONE YEAR, OR BOTH, FOR EACH OFFENSE." 

EXCLUSION ORDER NO. 34, WHICH THE PETITIONER KNOWINGLY AND ADMITTEDLY
VIOLATED, WAS ONE OF A NUMBER OF MILITARY ORDERS AND PROCLAMATIONS, ALL
OF WHICH WERE SUBSTANTIALLY BASED UPON EXECUTIVE ORDER NO. 9066, 7 FED.
REG. 1407.  THAT ORDER, ISSUED AFTER WE WERE AT WAR WITH JAPAN,
DECLARED THAT "THE SUCCESSFUL PROSECUTION OF THE WAR REQUIRES EVERY
POSSIBLE PROTECTION AGAINST ESPIONAGE AND AGAINST SABOTAGE TO NATIONAL
DEFENSE MATERIAL, NATIONAL-DEFENSE PREMISES, AND NATIONAL-DEFENSE
UTILITIES...." 

ONE OF THE SERIES OF ORDERS AND PROCLAMATIONS, A CURFEW ORDER, WHICH
LIKE THE EXCLUSION ORDER HERE WAS PROMULGATED PURSUANT TO EXECUTIVE
ORDER 9066, SUBJECTED ALL PERSONS OF JAPANESE ANCESTRY IN PRESCRIBED
WEST COAST MILITARY AREAS TO REMAIN IN THEIR RESIDENCES FROM 8 P.M. TO
6 A.M.  AS IS THE CASE WITH THE EXCLUSION ORDER HERE, THAT PRIOR CURFEW
ORDER WAS DESIGNED AS A "PROTECTION AGAINST ESPIONAGE AND AGAINST
SABOTAGE."  IN HIRABAYASHI V. UNITED STATES, 320 U.S. 81, WE SUSTAINED
A CONVICTION OBTAINED FOR VIOLATION OF THE CURFEW ORDER.  THE
HIRABAYASHI CONVICTION AND THIS ONE THUS REST ON THE SAME 1942
CONGRESSIONAL ACT AND THE SAME BASIC EXECUTIVE AND MILITARY ORDERS, ALL
OF WHICH ORDERS WERE AIMED AT THE TWIN DANGERS OF ESPIONAGE AND
SABOTAGE. 

THE 1942 ACT WAS ATTACKED IN THE HIRABAYASHI CASE AS AN
UNCONSTITUTIONAL DELEGATION OF POWER; IT WAS CONTENDED THAT THE CURFEW
ORDER AND OTHER ORDERS ON WHICH IT RESTED WERE BEYOND THE WAR POWERS OF
THE CONGRESS, THE MILITARY AUTHORITIES AND OF THE PRESIDENT, AS
COMMANDER IN CHIEF OF THE ARMY; AND FINALLY THAT TO APPLY THE CURFEW
ORDER AGAINST NONE BUT CITIZENS OF JAPANESE ANCESTRY AMOUNTED TO A
CONSTITUTIONALLY PROHIBITED DISCRIMINATION SOLELY ON ACCOUNT OF RACE. 
TO THESE QUESTIONS, WE GAVE THE SERIOUS CONSIDERATION WHICH THEIR
IMPORTANCE JUSTIFIED.  WE UPHELD THE CURFEW ORDER AS AN EXERCISE OF THE
POWER OF THE GOVERNMENT TO TAKE STEPS NECESSARY TO PREVENT ESPIONAGE
AND SABOTAGE IN AN AREA THREATENED BY JAPANESE ATTACK. 

IN THE LIGHT OF THE PRINCIPLES WE ANNOUNCED IN THE HIRABAYASHI CASE,
WE ARE UNABLE TO CONCLUDE THAT IT WAS BEYOND THE WAR POWER OF CONGRESS
AND THE EXECUTIVE TO EXCLUDE THOSE OF JAPANESE ANCESTRY FROM THE WEST
COAST WAR AREA AT THE TIME THEY DID.  TRUE, EXCLUSION FROM THE AREA IN
WHICH ONE'S HOME IS LOCATED IS A FAR GREATER DEPRIVATION THAN CONSTANT
CONFINEMENT TO THE HOME FROM 8 P.M. TO 6 A.M.  NOTHING SHORT OF
APPREHENSION BY THE PROPER MILITARY AUTHORITIES OF THE GRAVEST IMMINENT
DANGER TO THE PUBLIC SAFETY CAN CONSTITUTIONALLY JUSTIFY EITHER.  BUT
EXCLUSION FROM A THREATENED AREA, NO LESS THAN CURFEW, HAS A DEFINITE
AND CLOSE RELATIONSHIP TO THE PREVENTION OF ESPIONAGE AND SABOTAGE. 
THE MILITARY AUTHORITIES, CHARGED WITH THE PRIMARY RESPONSIBILITY OF
DEFENDING OUR SHORES, CONCLUDED THAT CURFEW PROVIDED INADEQUATE
PROTECTION AND ORDERED EXCLUSION.  THEY DID SO, AS POINTED OUT IN OUR
HIRABAYASHI OPINION, IN ACCORDANCE WITH CONGRESSIONAL AUTHORITY TO THE
MILITARY TO SAY WHO SHOULD, AND WHO SHOULD NOT, REMAIN IN THE
THREATENED AREAS. 

IN THIS CASE THE PETITIONER CHALLENGES THE ASSUMPTIONS UPON WHICH WE
RESTED OUR CONCLUSIONS IN THE HIRABAYASHI CASE.  HE ALSO URGES THAT BY
MAY 1942, WHEN ORDER NO. 34 WAS PROMULGATED, ALL DANGER OF JAPANESE
INVASION OF THE WEST COAST HAD DISAPPEARED.  AFTER CAREFUL
CONSIDERATION OF THESE CONTENTIONS WE ARE COMPELLED TO REJECT THEM. 

HERE, AS IN THE HIRABAYASHI CASE, SUPRA, AT P. 99, "...  WE CANNOT
REJECT AS UNFOUNDED THE JUDGMENT OF THE MILITARY AUTHORITIES AND OF
CONGRESS THAT THERE WERE DISLOYAL MEMBERS OF THAT POPULATION, WHOSE
NUMBER AND STRENGTH COULD NOT BE PRECISELY AND QUICKLY ASCERTAINED.  WE
CANNOT SAY THAT THE WAR-MAKING BRANCHES OF THE GOVERNMENT DID NOT HAVE
GROUND FOR BELIEVING THAT IN A CRITICAL HOUR SUCH PERSONS COULD NOT
READILY BE ISOLATED AND SEPARATELY DEALT WITH, AND CONSTITUTED A MENACE
TO THE NATIONAL DEFENSE AND SAFETY, WHICH DEMANDED THAT PROMPT AND
ADEQUATE MEASURES BE TAKEN TO GUARD AGAINST IT." 

LIKE CURFEW, EXCLUSION OF THOSE OF JAPANESE ORIGIN WAS DEEMED
NECESSARY BECAUSE OF THE PRESENCE OF AN UNASCERTAINED NUMBER OF
DISLOYAL MEMBERS OF THE GROUP, MOST OF WHOM WE HAVE NO DOUBT WERE LOYAL
TO THIS COUNTRY.  IT WAS BECAUSE WE COULD NOT REJECT THE FINDING OF THE
MILITARY AUTHORITIES THAT IT WAS IMPOSSIBLE TO BRING ABOUT AN IMMEDIATE
SEGREGATION OF THE DISLOYAL FROM THE LOYAL THAT WE SUSTAINED THE
VALIDITY OF THE CURFEW ORDER AS APPLYING TO THE WHOLE GROUP.  IN THE
INSTANT CASE, TEMPORARY EXCLUSION OF THE ENTIRE GROUP WAS RESTED BY THE
MILITARY ON THE SAME GROUND.  THE JUDGMENT THAT EXCLUSION OF THE WHOLE
GROUP WAS FOR THE SAME REASON A MILITARY IMPERATIVE ANSWERS THE
CONTENTION THAT THE EXCLUSION WAS IN THE NATURE OF GROUP PUNISHMENT
BASED ON ANTAGONISM TO THOSE OF JAPANESE ORIGIN.  THAT THERE WERE
MEMBERS OF THE GROUP WHO RETAINED LOYALTIES TO JAPAN HAS BEEN CONFIRMED
BY INVESTIGATIONS MADE SUBSEQUENT TO THE EXCLUSION.  APPROXIMATELY FIVE
THOUSAND AMERICAN CITIZENS OF JAPANESE ANCESTRY REFUSED TO SWEAR
UNQUALIFIED ALLEGIANCE TO THE UNITED STATES AND TO RENOUNCE ALLEGIANCE
TO THE JAPANESE EMPEROR, AND SEVERAL THOUSAND EVACUEES REQUESTED
REPATRIATION TO JAPAN.  FN2 

WE UPHOLD THE EXCLUSION ORDER AS OF THE TIME IT WAS MADE AND WHEN THE
PETITIONER VIOLATED IT. CF. CHASTLETON CORPORATION V. SINCLAIR, 264
U.S. 543, 547; BLOCK V. HIRSH, 256 U.S. 135, 154-5.  IN DOING SO, WE
ARE NOT UNMINDFUL OF THE HARDSHIPS IMPOSED BY IT UPON A LARGE GROUP OF
AMERICAN CITIZENS.  CF. EX PARTE KAWATO, 317 U.S. 69, 73.  BUT
HARDSHIPS ARE PART OF WAR, AND WAR IS AN AGGREGATION OF HARDSHIPS.  ALL
CITIZENS ALIKE, BOTH IN AND OUT OF UNIFORM, FEEL THE IMPACT OF WAR IN
GREATER OR LESSER MEASURE.  CITIZENSHIP HAS ITS RESPONSIBILITIES AS
WELL AS ITS PRIVILEGES, AND IN TIME OF WAR THE BURDEN IS ALWAYS
HEAVIER.  COMPULSORY EXCLUSION OF LARGE GROUPS OF CITIZENS FROM THEIR
HOMES, EXCEPT UNDER CIRCUMSTANCES OF DIREST EMERGENCY AND PERIL, IS
INCONSISTENT WITH OUR BASIC GOVERNMENTAL INSTITUTIONS.  BUT WHEN UNDER
CONDITIONS OF MODERN WARFARE OUR SHORES ARE THREATENED BY HOSTILE
FORCES, THE POWER TO PROTECT MUST BE COMMENSURATE WITH THE THREATENED
DANGER. 

IT IS ARGUED THAT ON MAY 30, 1942, THE DATE THE PETITIONER WAS
CHARGED WITH REMAINING IN THE PROHIBITED AREA, THERE WERE CONFLICTING
ORDERS OUTSTANDING, FORBIDDING HIM BOTH TO LEAVE THE AREA AND TO REMAIN
THERE.  OF COURSE, A PERSON CANNOT BE CONVICTED FOR DOING THE VERY
THING WHICH IT IS A CRIME TO FAIL TO DO.  BUT THE OUTSTANDING ORDERS
HERE CONTAINED NO SUCH CONTRADICTORY COMMANDS. 

THERE WAS AN ORDER ISSUED MARCH 27, 1942, WHICH PROHIBITED PETITIONER
AND OTHERS OF JAPANESE ANCESTRY FROM LEAVING THE AREA, BUT ITS EFFECT
WAS SPECIFICALLY LIMITED IN TIME "UNTIL AND TO THE EXTENT THAT A FUTURE
PROCLAMATION OR ORDER SHOULD SO PERMIT OR DIRECT."  7 FED. REG. 2601. 
THAT "FUTURE ORDER," THE ONE FOR VIOLATION OF WHICH PETITIONER WAS
CONVICTED, WAS ISSUED MAY 3, 1942, AND IT DID "DIRECT" EXCLUSION FROM
THE AREA OF ALL PERSONS OF JAPANESE ANCESTRY, BEFORE 12 O'CLOCK NOON,
MAY 9; FURTHERMORE IT CONTAINED A WARNING THAT ALL SUCH PERSONS FOUND
IN THE PROHIBITED AREA WOULD BE LIABLE TO PUNISHMENT UNDER THE MARCH
21, 1942 ACT OF CONGRESS.  CONSEQUENTLY, THE ONLY ORDER IN EFFECT
TOUCHING THE PETITIONER'S BEING IN THE AREA ON MAY 30, 1942, THE DATE
SPECIFIED IN THE INFORMATION AGAINST HIM, WAS THE MAY 3 ORDER WHICH
PROHIBITED HIS REMAINING THERE, AND IT WAS THAT SAME ORDER, WHICH HE
STIPULATED IN HIS TRIAL THAT HE HAD VIOLATED, KNOWING OF ITS
EXISTENCE.  THERE IS THEREFORE NO BASIS FOR THE ARGUMENT THAT ON MAY
30, 1942, HE WAS SUBJECT TO PUNISHMENT, UNDER THE MARCH 27 AND MAY 3
ORDERS, WHETHER HE REMAINED IN OR LEFT THE AREA. 

IT DOES APPEAR, HOWEVER, THAT ON MAY 9, THE EFFECTIVE DATE OF THE
EXCLUSION ORDER, THE MILITARY AUTHORITIES HAD ALREADY DETERMINED THAT
THE EVACUATION SHOULD BE EFFECTED BY ASSEMBLING TOGETHER AND PLACING
UNDER GUARD ALL THOSE OF JAPANESE ANCESTRY, AT CENTRAL POINTS,
DESIGNATED AS "ASSEMBLY CENTERS," IN ORDER "TO INSURE THE ORDERLY
EVACUATION AND RESETTLEMENT OF JAPANESE VOLUNTARILY MIGRATING FROM
MILITARY AREA NO. 1, TO RESTRICT AND REGULATE SUCH MIGRATION."  PUBLIC
PROCLAMATION NO. 4, 7 FED. REG. 2601.  AND ON MAY 19, 1942, ELEVEN DAYS
BEFORE THE TIME PETITIONER WAS CHARGED WITH UNLAWFULLY REMAINING IN THE
AREA, CIVILIAN RESTRICTIVE ORDER NO. 1, 8 FED. REG. 982, PROVIDED FOR
DETENTION OF THOSE OF JAPANESE ANCESTRY IN ASSEMBLY OR RELOCATION
CENTERS.  IT IS NOW ARGUED THAT THE VALIDITY OF THE EXCLUSION ORDER
CANNOT BE CONSIDERED APART FROM THE ORDERS REQUIRING HIM, AFTER
DEPARTURE FROM THE AREA, TO REPORT AND TO REMAIN IN AN ASSEMBLY OR
RELOCATION CENTER.  THE CONTENTION IS THAT WE MUST TREAT THESE SEPARATE
ORDERS AS ONE AND INSEPARABLE; THAT, FOR THIS REASON, IF DETENTION IN
THE ASSEMBLY OR RELOCATION CENTER WOULD HAVE ILLEGALLY DEPRIVED THE
PETITIONER OF HIS LIBERTY, THE EXCLUSION ORDER AND HIS CONVICTION UNDER
IT CANNOT STAND. 

WE ARE THUS BEING ASKED TO PASS AT THIS TIME UPON THE WHOLE
SUBSEQUENT DETENTION PROGRAM IN BOTH ASSEMBLY AND RELOCATION CENTERS,
ALTHOUGH THE ONLY ISSUES FRAMED AT THE TRIAL RELATED TO PETITIONER'S
REMAINING IN THE PROHIBITED AREA IN VIOLATION OF THE EXCLUSION ORDER. 
HAD PETITIONER HERE LEFT THE PROHIBITED AREA AND GONE TO AN ASSEMBLY
CENTER WE CANNOT SAY EITHER AS A MATTER OF FACT OR LAW THAT HIS
PRESENCE IN THAT CENTER WOULD HAVE RESULTED IN HIS DETENTION IN A
RELOCATION CENTER.  SOME WHO DID REPORT TO THE ASSEMBLY CENTER WERE NOT
SENT TO RELOCATION CENTERS, BUT WERE RELEASED UPON CONDITION THAT THEY
REMAIN OUTSIDE THE PROHIBITED ZONE UNTIL THE MILITARY ORDERS WERE
MODIFIED OR LIFTED.  THIS ILLUSTRATES THAT THEY POSE DIFFERENT PROBLEMS
AND MAY BE GOVERNED BY DIFFERENT PRINCIPLES.  THE LAWFULNESS OF ONE
DOES NOT NECESSARILY DETERMINE THE LAWFULNESS OF THE OTHERS.  THIS IS
MADE CLEAR WHEN WE ANALYZE THE REQUIREMENTS OF THE SEPARATE PROVISIONS
OF THE SEPARATE ORDERS.  THESE SEPARATE REQUIREMENTS WERE THAT THOSE OF
JAPANESE ANCESTRY (1) DEPART FROM THE AREA; (2) REPORT TO AND
TEMPORARILY REMAIN IN AN ASSEMBLY CENTER; (3) GO UNDER MILITARY CONTROL
TO A RELOCATION CENTER THERE TO REMAIN FOR AN INDETERMINATE PERIOD
UNTIL RELEASED CONDITIONALLY OR UNCONDITIONALLY BY THE MILITARY
AUTHORITIES.  EACH OF THESE REQUIREMENTS, IT WILL BE NOTED, IMPOSED
DISTINCT DUTIES IN CONNECTION WITH THE SEPARATE STEPS IN A COMPLETE
EVACUATION PROGRAM.  HAD CONGRESS DIRECTLY INCORPORATED INTO ONE ACT
THE LANGUAGE OF THESE SEPARATE ORDERS, AND PROVIDED SANCTIONS FOR THEIR
VIOLATIONS, DISOBEDIENCE OF ANY ONE WOULD HAVE CONSTITUTED A SEPARATE
OFFENSE.  CF. BLOCKBURGER V. UNITED STATES, 284 U.S. 299, 304.  THERE
IS NO REASON WHY VIOLATIONS OF THESE ORDERS, INSOFAR AS THEY WERE
PROMULGATED PURSUANT TO CONGRESSIONAL ENACTMENT, SHOULD NOT BE TREATED
AS SEPARATE OFFENSES. 

THE ENDO CASE, POST, P. 283, GRAPHICALLY ILLUSTRATES THE DIFFERENCE
BETWEEN THE VALIDITY OF AN ORDER TO EXCLUDE AND THE VALIDITY OF A
DETENTION ORDER AFTER EXCLUSION HAS BEEN EFFECTED.    SINCE THE
PETITIONER HAS NOT BEEN CONVICTED OF FAILING TO REPORT OR TO REMAIN IN
AN ASSEMBLY OR RELOCATION CENTER, WE CANNOT IN THIS CASE DETERMINE THE
VALIDITY OF THOSE SEPARATE PROVISIONS OF THE ORDER.  IT IS SUFFICIENT
HERE FOR US TO PASS UPON THE ORDER WHICH PETITIONER VIOLATED.  TO DO
MORE WOULD BE TO GO BEYOND THE ISSUES RAISED, AND TO DECIDE MOMENTOUS
QUESTIONS NOT CONTAINED WITHIN THE FRAMEWORK OF THE PLEADINGS OR THE
EVIDENCE IN THIS CASE.  IT WILL BE TIME ENOUGH TO DECIDE THE SERIOUS
CONSTITUTIONAL ISSUES WHICH PETITIONER SEEKS TO RAISE WHEN AN ASSEMBLY
OR RELOCATION ORDER IS APPLIED OR IS CERTAIN TO BE APPLIED TO HIM, AND
WE HAVE ITS TERMS BEFORE US. 

SOME OF THE MEMBERS OF THE COURT ARE OF THE VIEW THAT EVACUATION AND
DETENTION IN AN ASSEMBLY CENTER WERE INSEPARABLE.  AFTER MAY 3, 1942,
THE DATE OF EXCLUSION ORDER NO. 34, KOREMATSU WAS UNDER COMPULSION TO
LEAVE THE AREA NOT AS HE WOULD CHOOSE BUT VIA AN ASSEMBLY CENTER.  THE
ASSEMBLY CENTER WAS CONCEIVED AS A PART OF THE MACHINERY FOR GROUP
EVACUATION.  THE POWER TO EXCLUDE INCLUDES THE POWER TO DO IT BY FORCE
IF NECESSARY.  AND ANY FORCIBLE MEASURE MUST NECESSARILY ENTAIL SOME
DEGREE OF DETENTION OR RESTRAINT WHATEVER METHOD OF REMOVAL IS
SELECTED.  BUT WHICHEVER VIEW IS TAKEN, IT RESULTS IN HOLDING THAT THE
ORDER UNDER WHICH PETITIONER WAS CONVICTED WAS VALID. 

IT IS SAID THAT WE ARE DEALING HERE WITH THE CASE OF IMPRISONMENT OF
A CITIZEN IN A CONCENTRATION CAMP SOLELY BECAUSE OF HIS ANCESTRY,
WITHOUT EVIDENCE OR INQUIRY CONCERNING HIS LOYALTY AND GOOD DISPOSITION
TOWARDS THE UNITED STATES.  OUR TASK WOULD BE SIMPLE, OUR DUTY CLEAR,
WERE THIS A CASE INVOLVING THE IMPRISONMENT OF A LOYAL CITIZEN IN A
CONCENTRATION CAMP BECAUSE OF RACIAL PREJUDICE.  REGARDLESS OF THE TRUE
NATURE OF THE ASSEMBLY AND RELOCATION CENTERS - AND WE DEEM IT
UNJUSTIFIABLE TO CALL THEM CONCENTRATION CAMPS WITH ALL THE UGLY
CONNOTATIONS THAT TERM IMPLIES - WE ARE DEALING SPECIFICALLY WITH
NOTHING BUT AN EXCLUSION ORDER.  TO CAST THIS CASE INTO OUTLINES OF
RACIAL PREJUDICE, WITHOUT REFERENCE TO THE REAL MILITARY DANGERS WHICH
WERE PRESENTED, MERELY CONFUSES THE ISSUE.  KOREMATSU WAS NOT EXCLUDED
FROM THE MILITARY AREA BECAUSE OF HOSTILITY TO HIM OR HIS RACE.  HE WAS
EXCLUDED BECAUSE WE ARE AT WAR WITH THE JAPANESE EMPIRE, BECAUSE THE
PROPERLY CONSTITUTED MILITARY AUTHORITIES FEARED AN INVASION OF OUR
WEST COAST AND FELT CONSTRAINED TO TAKE PROPER SECURITY MEASURES,
BECAUSE THEY DECIDED THAT THE MILITARY URGENCY OF THE SITUATION
DEMANDED THAT ALL CITIZENS OF JAPANESE ANCESTRY BE SEGREGATED FROM THE
WEST COAST TEMPORARILY, AND FINALLY, BECAUSE CONGRESS, REPOSING ITS
CONFIDENCE IN THIS TIME OF WAR IN OUR MILITARY LEADERS - AS INEVITABLY
IT MUST - DETERMINED THAT THEY SHOULD HAVE THE POWER TO DO JUST THIS. 
THERE WAS EVIDENCE OF DISLOYALTY ON THE PART OF SOME, THE MILITARY
AUTHORITIES CONSIDERED THAT THE NEED FOR ACTION WAS GREAT, AND TIME WAS
SHORT.  WE CANNOT - BY AVAILING OURSELVES OF THE CALM PERSPECTIVE OF
HINDSIGHT - NOW SAY THAT AT THAT TIME THESE ACTIONS WERE UNJUSTIFIED. 
AFFIRMED. 

FN1  140 F.2D 289. 

FN2  HEARINGS BEFORE THE SUBCOMMITTEE ON THE NATIONAL WAR AGENCIES
APPROPRIATION BILL FOR 1945, PART II, 608-726; FINAL REPORT, JAPANESE
EVACUATION FROM THE WEST COAST, 1942, 309-327; HEARINGS BEFORE THE
COMMITTEE ON IMMIGRATION AND NATURALIZATION, HOUSE OF REPRESENTATIVES,
78TH CONG., 2D SESS., ON H.R. 2701 AND OTHER BILLS TO EXPATRIATE
CERTAIN NATIONALS OF THE UNITED STATES, PP. 37-42, 49-58. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

ACCORDING TO MY READING OF CIVILIAN EXCLUSION ORDER NO. 34, IT WAS AN
OFFENSE FOR KOREMATSU TO BE FOUND IN MILITARY AREA NO. 1, THE TERRITORY
WHEREIN HE WAS PREVIOUSLY LIVING, EXCEPT WITHIN THE BOUNDS OF THE
ESTABLISHED ASSEMBLY CENTER OF THAT AREA.  EVEN THOUGH THE VARIOUS
ORDERS ISSUED BY GENERAL DEWITT BE DEEMED A COMPREHENSIVE CODE OF
INSTRUCTIONS, THEIR TENOR IS CLEAR AND NOT CONTRADICTORY.  THEY PUT
UPON KOREMATSU THE OBLIGATION TO LEAVE MILITARY AREA NO. 1, BUT ONLY BY
THE METHOD PRESCRIBED IN THE INSTRUCTIONS, I.E., BY REPORTING TO THE
ASSEMBLY CENTER.  I AM UNABLE TO SEE HOW THE LEGAL CONSIDERATIONS THAT
LED TO THE DECISION IN HIRABAYASHI V. UNITED STATES, 320 U.S. 81, FAIL
TO SUSTAIN THE MILITARY ORDER WHICH MADE THE CONDUCT NOW IN CONTROVERSY
A CRIME.  AND SO I JOIN IN THE OPINION OF THE COURT, BUT SHOULD LIKE TO
ADD A FEW WORDS OF MY OWN. 

THE PROVISIONS OF THE CONSTITUTION WHICH CONFER ON THE CONGRESS AND
THE PRESIDENT POWERS TO ENABLE THIS COUNTRY TO WAGE WAR ARE AS MUCH
PART OF THE CONSTITUTION AS PROVISIONS LOOKING TO A NATION AT PEACE. 
AND WE HAVE HAD RECENT OCCASION TO QUOTE APPROVINGLY THE STATEMENT OF
FORMER CHIEF JUSTICE HUGHES THAT THE WAR POWER OF THE GOVERNMENT IS
"THE POWER TO WAGE WAR SUCCESSFULLY."  HIRABAYASHI V. UNITED STATES,
SUPRA AT 93; AND SEE HOME BLDG. & L. ASSN. V. BLAISDELL, 290 U.S. 398,
426.  THEREFORE, THE VALIDITY OF ACTION UNDER THE WAR POWER MUST BE
JUDGED WHOLLY IN THE CONTEXT OF WAR.  THAT ACTION IS NOT TO BE
STIGMATIZED AS LAWLESS BECAUSE LIKE ACTION IN TIMES OF PEACE WOULD BE
LAWLESS.  TO TALK ABOUT A MILITARY ORDER THAT EXPRESSES AN ALLOWABLE
JUDGMENT OF WAR NEEDS BY THOSE ENTRUSTED WITH THE DUTY OF CONDUCTING
WAR AS "AN UNCONSTITUTIONAL ORDER" IS TO SUFFUSE A PART OF THE
CONSTITUTION WITH AN ATMOSPHERE OF UNCONSTITUTIONALITY.  THE RESPECTIVE
SPHERES OF ACTION OF MILITARY AUTHORITIES AND OF JUDGES ARE OF COURSE
VERY DIFFERENT.  BUT WITHIN THEIR SPHERE, MILITARY AUTHORITIES ARE NO
MORE OUTSIDE THE BOUNDS OF OBEDIENCE TO THE CONSTITUTION THAN ARE
JUDGES WITHIN THEIRS.  "THE WAR POWER OF THE UNITED STATES, LIKE ITS
OTHER POWERS  ... IS SUBJECT TO APPLICABLE CONSTITUTIONAL LIMITATIONS",
HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146, 156.  TO RECOGNIZE
THAT MILITARY ORDERS ARE "REASONABLY EXPEDIENT MILITARY PRECAUTIONS" IN
TIME OF WAR AND YET TO DENY THEM CONSTITUTIONAL LEGITIMACY MAKES OF THE
CONSTITUTION AN INSTRUMENT FOR DIALECTIC SUBLETIES NOT REASONABLY TO BE
ATTRIBUTED TO THE HARD-HEADED FRAMERS, OF WHOM A MAJORITY HAD HAD
ACTUAL PARTICIPATION IN WAR.  IF A MILITARY ORDER SUCH AS THAT UNDER
REVIEW DOES NOT TRANSCEND THE MEANS APPROPRIATE FOR CONDUCTING WAR,
SUCH ACTION BY THE MILITARY IS AS CONSTITUTIONAL AS WOULD BE ANY
AUTHORIZED ACTION BY THE INTERSTATE COMMERCE COMMISSION WITHIN THE
LIMITS OF THE CONSTITUTIONAL POWER TO REGULATE COMMERCE.  AND BEING AN
EXERCISE OF THE WAR POWER EXPLICITLY GRANTED BY THE CONSTITUTION FOR
SAFEGUARDING THE NATIONAL LIFE BY PROSECUTING WAR EFFECTIVELY, I FIND
NOTHING IN THE CONSTITUTION WHICH DENIES TO CONGRESS THE POWER TO
ENFORCE SUCH A VALID MILITARY ORDER BY MAKING ITS VIOLATION AN OFFENSE
TRIABLE IN THE CIVIL COURTS.  COMPARE INTERSTATE COMMERCE COMMISSION V.
BRIMSON, 154 U.S. 447; 155 U.S. 3, AND MONONGAHELA BRIDGE CO. V. UNITED
STATES, 216 U.S. 177.  TO FIND THAT THE CONSTITUTION DOES NOT FORBID
THE MILITARY MEASURES NOW COMPLAINED OF DOES NOT CARRY WITH IT APPROVAL
OF THAT WHICH CONGRESS AND THE EXECUTIVE DID.  THAT IS THEIR BUSINESS,
NOT OURS. 

MR. JUSTICE ROBERTS. 

I DISSENT, BECAUSE I THINK THE INDISPUTABLE FACTS EXHIBIT A CLEAR
VIOLATION OF CONSTITUTIONAL RIGHTS. 

THIS IS NOT A CASE OF KEEPING PEOPLE OFF THE STREETS AT NIGHT AS WAS
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, NOR A CASE OF TEMPORARY
EXCLUSION OF A CITIZEN FROM AN AREA FOR HIS OWN SAFETY OR THAT OF THE
COMMUNITY, NOR A CASE OF OFFERING HIM AN OPPORTUNITY TO GO TEMPORARILY
OUT OF AN AREA WHERE HIS PRESENCE MIGHT CAUSE DANGER TO HIMSELF OR TO
HIS FELLOWS.  ON THE CONTRARY, IT IS THE CASE OF CONVICTING A CITIZEN
AS A PUNISHMENT FOR NOT SUBMITTING TO IMPRISONMENT IN A CONCENTRATION
CAMP, BASED ON HIS ANCESTRY, AND SOLELY BECAUSE OF HIS ANCESTRY,
WITHOUT EVIDENCE OR INQUIRY CONCERNING HIS LOYALTY AND GOOD DISPOSITION
TOWARDS THE UNITED STATES.  IF THIS BE A CORRECT STATEMENT OF THE FACTS
DISCLOSED BY THIS RECORD, AND FACTS OF WHICH WE TAKE JUDICIAL NOTICE, I
NEED HARDLY LABOR THE CONCLUSION THAT CONSTITUTIONAL RIGHTS HAVE BEEN
VIOLATED. 

THE GOVERNMENT'S ARGUMENT, AND THE OPINION OF THE COURT, IN MY
JUDGMENT, ERRONEOUSLY DIVIDE THAT WHICH IS SINGLE AND INDIVISIBLE AND
THUS MAKE THE CASE APPEAR AS IF THE PETITIONER VIOLATED A MILITARY
ORDER, SANCTIONED BY ACT OF CONGRESS, WHICH EXCLUDED HIM FROM HIS HOME,
BY REFUSING VOLUNTARILY TO LEAVE AND, SO, KNOWINGLY AND INTENTIONALLY,
DEFYING THE ORDER AND THE ACT OF CONGRESS. 

THE PETITIONER, A RESIDENT OF SAN LEANDRO, ALAMEDA COUNTY,
CALIFORNIA, IS A NATIVE OF THE UNITED STATES OF JAPANESE ANCESTRY WHO,
ACCORDING TO THE UNCONTRADICTED EVIDENCE, IS A LOYAL CITIZEN OF THE
NATION. 

A CHRONOLOGICAL RECITATION OF EVENTS WILL MAKE IT PLAIN THAT THE
PETITIONER'S SUPPOSED OFFENSE DID NOT, IN TRUTH, CONSIST IN HIS REFUSAL
VOLUNTARILY TO LEAVE THE AREA WHICH INCLUDED HIS HOME IN OBEDIENCE TO
THE ORDER EXCLUDING HIM THEREFROM.  CRITICAL ATTENTION MUST BE GIVEN TO
THE DATES AND SEQUENCE OF EVENTS. 

DECEMBER 8, 1941, THE UNITED STATES DECLARED WAR ON JAPAN. 

FEBRUARY 19, 1942, THE PRESIDENT ISSUED EXECUTIVE ORDER NO. 9066,
FN1  WHICH, AFTER STATING THE REASON FOR ISSUING THE ORDER AS
"PROTECTION AGAINST ESPIONAGE AND AGAINST SABOTAGE TO NATIONAL-DEFENSE
MATERIAL, NATIONAL-DEFENSE PREMISES, AND NATIONAL-DEFENSE UTILITIES,"
PROVIDED THAT CERTAIN MILITARY COMMANDERS MIGHT, IN THEIR DISCRETION,
"PRESCRIBE MILITARY AREAS" AND DEFINE THEIR EXTENT, "FROM WHICH ANY OR
ALL PERSONS MAY BE EXCLUDED, AND WITH RESPECT TO WHICH THE RIGHT OF ANY
PERSON TO ENTER, REMAIN IN, OR LEAVE SHALL BE SUBJECT TO WHATEVER
RESTRICTIONS" THE "MILITARY COMMANDER MAY IMPOSE IN HIS DISCRETION." 

FEBRUARY 20, 1942, LIEUTENANT GENERAL DEWITT WAS DESIGNATED MILITARY
COMMANDER OF THE WESTERN DEFENSE COMMAND EMBRACING THE WESTERNMOST
STATES OF THE UNION,  - ABOUT ONE-FOURTH OF THE TOTAL AREA OF THE
NATION. 

MARCH 2, 1942, GENERAL DEWITT PROMULGATED PUBLIC PROCLAMATION NO. 1,
FN2  WHICH RECITES THAT THE ENTIRE PACIFIC COAST IS "PARTICULARLY
SUBJECT TO ATTACK, TO ATTEMPTED INVASION  ...  AND, IN CONNECTION
THEREWITH, IS SUBJECT TO ESPIONAGE AND ACTS OF SABOTAGE."  IT STATES
THAT "AS A MATTER OF MILITARY NECESSITY" CERTAIN MILITARY AREAS AND
ZONES ARE ESTABLISHED KNOWN AS MILITARY AREAS NOS. 1 AND 2.  IT ADDS
THAT "SUCH PERSONS OR CLASSES OF PERSONS AS THE SITUATION MAY REQUIRE"
WILL, BY SUBSEQUENT ORDERS, "BE EXCLUDED FROM ALL OF MILITARY AREA NO.
1" AND FROM CERTAIN ZONES IN MILITARY AREA NO. 2.  SUBSEQUENT
PROCLAMATIONS WERE MADE WHICH, TOGETHER WITH PROCLAMATION NO. 1,
INCLUDED IN SUCH AREAS AND ZONES ALL OF CALIFORNIA, WASHINGTON, OREGON,
IDAHO, MONTANA, NEVADA AND UTAH, AND THE SOUTHERN PORTION OF ARIZONA. 
THE ORDERS REQUIRED THAT IF ANY PERSON OF JAPANESE, GERMAN OR ITALIAN
ANCESTRY RESIDING IN AREA NO. 1 DESIRED TO CHANGE HIS HABITUAL
RESIDENCE HE MUST EXECUTE AND DELIVER TO THE AUTHORITIES A CHANGE OF
RESIDENCE NOTICE. 

SAN LEANDRO, THE CITY OF PETITIONER'S RESIDENCE, LIES IN MILITARY
AREA NO. 1. 

ON MARCH 2, 1942, THE PETITIONER, THEREFORE, HAD NOTICE THAT, BY
EXECUTIVE ORDER, THE PRESIDENT, TO PREVENT ESPIONAGE AND SABOTAGE, HAD
AUTHORIZED THE MILITARY TO EXCLUDE HIM FROM CERTAIN AREAS AND TO
PREVENT HIS ENTERING OR LEAVING CERTAIN AREAS WITHOUT PERMISSION.  HE
WAS ON NOTICE THAT HIS HOME CITY HAD BEEN INCLUDED, BY MILITARY ORDER,
IN AREA NO. 1, AND HE WAS ON NOTICE FURTHER THAT, AT SOMETIME IN THE
FUTURE, THE MILITARY COMMANDER WOULD MAKE AN ORDER FOR THE EXCLUSION OF
CERTAIN PERSONS, NOT DESCRIBED OR CLASSIFIED, FROM VARIOUS ZONES
INCLUDING THAT IN WHICH HE LIVED. 

MARCH 21, 1942, CONGRESS ENACTED  FN3  THAT ANYONE WHO KNOWINGLY
"SHALL ENTER, REMAIN IN, LEAVE, OR COMMIT ANY ACT IN ANY MILITARY AREA
OR MILITARY ZONE PRESCRIBED  ...  BY ANY MILITARY COMMANDER ...
CONTRARY TO THE RESTRICTIONS APPLICABLE TO ANY SUCH AREA OR ZONE OR
CONTRARY TO THE ORDER OF ...  ANY SUCH MILITARY COMMANDER" SHALL BE
GUILTY OF A MISDEMEANOR.  THIS IS THE ACT UNDER WHICH THE PETITIONER
WAS CHARGED. 

MARCH 24, 1942, GENERAL DEWITT INSTITUTED THE CURFEW FOR CERTAIN
AREAS WITHIN HIS COMMAND, BY AN ORDER THE VALIDITY OF WHICH WAS
SUSTAINED IN HIRABAYASHI V. UNITED STATES, SUPRA. 

MARCH 24, 1942, GENERAL DEWITT BEGAN TO ISSUE A SERIES OF EXCLUSION
ORDERS RELATING TO SPECIFIED AREAS. 

MARCH 27, 1942, BY PROCLAMATION NO. 4,  FN4  THE GENERAL RECITED THAT
"IT IS NECESSARY, IN ORDER TO PROVIDE FOR THE WELFARE AND TO INSURE THE
ORDERLY EVACUATION AND RESETTLEMENT OF JAPANESE VOLUNTARILY MIGRATING
FROM MILITARY AREA NO. 1, TO RESTRICT AND REGULATE SUCH MIGRATION"; AND
ORDERED THAT, AS OF MARCH 29, 1942, "ALL ALIEN JAPANESE AND PERSONS OF
JAPANESE ANCESTRY WHO ARE WITHIN THE LIMITS OF MILITARY AREA NO. 1, BE
AND THEY ARE HEREBY PROHIBITED FROM LEAVING THAT AREA FOR ANY PURPOSE
UNTIL AND TO THE EXTENT THAT A FUTURE PROCLAMATION OR ORDER OF THIS
HEADQUARTERS SHALL SO PERMIT OR DIRECT."  FN5 

NO ORDER HAD BEEN MADE EXCLUDING THE PETITIONER FROM THE AREA IN
WHICH HE LIVED.  BY PROCLAMATION NO. 4 HE WAS, AFTER MARCH 29, 1942,
CONFINED TO THE LIMITS OF AREA NO. 1.  IF THE EXECUTIVE ORDER NO. 9066
AND THE ACT OF CONGRESS MEANT WHAT THEY SAID, TO LEAVE THAT AREA, IN
THE FACE OF PROCLAMATION NO. 4, WOULD BE TO COMMIT A MISDEMEANOR. 

MAY 3, 1942, GENERAL DEWITT ISSUED CIVILIAN EXCLUSION ORDER NO. 34
FN6  PROVIDING THAT, AFTER 12 O'CLOCK MAY 8, 1942, ALL PERSONS OF
JAPANESE ANCESTRY, BOTH ALIEN AND NONALIEN, WERE TO BE EXCLUDED FROM A
DESCRIBED PORTION OF MILITARY AREA NO. 1, WHICH INCLUDED THE COUNTY OF
ALAMEDA, CALIFORNIA.  THE ORDER REQUIRED A RESPONSIBLE MEMBER OF EACH
FAMILY AND EACH INDIVIDUAL LIVING ALONE TO REPORT, AT A TIME SET, AT A
CIVIL CONTROL STATION FOR INSTRUCTIONS TO GO TO AN ASSEMBLY CENTER, AND
ADDED THAT ANY PERSON FAILING TO COMPLY WITH THE PROVISIONS OF THE
ORDER WHO WAS FOUND IN THE DESCRIBED AREA AFTER THE DATE SET WOULD BE
LIABLE TO PROSECUTION UNDER THE ACT OF MARCH 21, 1942, SUPRA.  IT IS
IMPORTANT TO NOTE THAT THE ORDER, BY ITS EXPRESS TERMS, HAD NO
APPLICATION TO PERSONS WITHIN THE BOUNDS "OF AN ESTABLISHED ASSEMBLY
CENTER PURSUANT TO INSTRUCTIONS FROM THIS HEADQUARTERS  ..."  THE
OBVIOUS PURPOSE OF THE ORDERS MADE, TAKEN TOGETHER, WAS TO DRIVE ALL
CITIZENS OF JAPANESE ANCESTRY INTO ASSEMBLY CENTERS WITHIN THE ZONES OF
THEIR RESIDENCE, UNDER PAIN OF CRIMINAL PROSECUTION.    THE PREDICAMENT
IN WHICH THE PETITIONER THUS FOUND HIMSELF WAS THIS:  HE WAS FORBIDDEN,
BY MILITARY ORDER, TO LEAVE THE ZONE IN WHICH HE LIVED; HE WAS
FORBIDDEN, BY MILITARY ORDER, AFTER A DATE FIXED, TO BE FOUND WITHIN
THAT ZONE UNLESS HE WERE IN AN ASSEMBLY CENTER LOCATED IN THAT ZONE. 
GENERAL DEWITT'S REPORT TO THE SECRETARY OF WAR CONCERNING THE
PROGRAMME OF EVACUATION AND RELOCATION OF JAPANESE MAKES IT ENTIRELY
CLEAR, IF IT WERE NECESSARY TO REFER TO THAT DOCUMENT,  - AND, IN THE
LIGHT OF THE ABOVE RECITATION, I THINK IT IS NOT,  - THAT AN ASSEMBLY
CENTER WAS A EUPHEMISM FOR A PRISON.  NO PERSON WITHIN SUCH A CENTER
WAS PERMITTED TO LEAVE EXCEPT BY MILITARY ORDER. 

IN THE DILEMMA THAT HE DARE NOT REMAIN IN HIS HOME, OR VOLUNTARILY
LEAVE THE AREA, WITHOUT INCURRING CRIMINAL PENALTIES, AND THAT THE ONLY
WAY HE COULD AVOID PUNISHMENT WAS TO GO TO AN ASSEMBLY CENTER AND
SUBMIT HIMSELF TO MILITARY IMPRISONMENT, THE PETITIONER DID NOTHING. 

JUNE 12, 1942, AN INFORMATION WAS FILED IN THE DISTRICT COURT FOR
NORTHERN CALIFORNIA CHARGING A VIOLATION OF THE ACT OF MARCH 21, 1942,
IN THAT PETITIONER HAD KNOWINGLY REMAINED WITHIN THE AREA COVERED BY
EXCLUSION ORDER NO. 34.  A DEMURRER TO THE INFORMATION HAVING BEEN
OVERRULED, THE PETITIONER WAS TRIED UNDER A PLEA OF NOT GUILTY AND
CONVICTED.  SENTENCE WAS SUSPENDED AND HE WAS PLACED ON PROBATION FOR
FIVE YEARS.  WE KNOW, HOWEVER, IN THE LIGHT OF THE FOREGOING
RECITATION, THAT HE WAS AT ONCE TAKEN INTO MILITARY CUSTODY AND LODGED
IN AN ASSEMBLY CENTER.  WE FURTHER KNOW THAT, ON MARCH 18, 1942, THE
PRESIDENT HAD PROMULGATED EXECUTIVE ORDER NO. 9102  FN7  ESTABLISHING
THE WAR RELOCATION AUTHORITY UNDER WHICH SO-CALLED RELOCATION CENTERS,
A EUPHEMISM FOR CONCENTRATION CAMPS, WERE ESTABLISHED PURSUANT TO
COOPERATION BETWEEN THE MILITARY AUTHORITIES OF THE WESTERN DEFENSE
COMMAND AND THE RELOCATION AUTHORITY, AND THAT THE PETITIONER HAS BEEN
CONFINED EITHER IN AN ASSEMBLY CENTER, WITHIN THE ZONE IN WHICH HE HAD
LIVED OR HAS BEEN REMOVED TO A RELOCATION CENTER WHERE, AS THE FACTS
DISCLOSED IN EX PARTE ENDO (POST, P. 283) DEMONSTRATE, HE WAS ILLEGALLY
HELD IN CUSTODY. 

THE GOVERNMENT HAS ARGUED THIS CASE AS IF THE ONLY ORDER OUTSTANDING
AT THE TIME THE PETITIONER WAS ARRESTED AND INFORMED AGAINST WAS
EXCLUSION ORDER NO. 34 ORDERING HIM TO LEAVE THE AREA IN WHICH HE
RESIDED, WHICH WAS THE BASIS OF THE INFORMATION AGAINST HIM.  THAT
ARGUMENT HAS EVIDENTLY BEEN EFFECTIVE.  THE OPINION REFERS TO THE
HIRABAYASHI CASE, SUPRA, TO SHOW THAT THIS COURT HAS SUSTAINED THE
VALIDITY OF A CURFEW ORDER IN AN EMERGENCY.  THE ARGUMENT THEN IS THAT
EXCLUSION FROM A GIVEN AREA OF DANGER, WHILE SOMEWHAT MORE SWEEPING
THAN A CURFEW REGULATION, IS OF THE SAME NATURE,  - A TEMPORARY
EXPEDIENT MADE NECESSARY BY A SUDDEN EMERGENCY.  THIS, I THINK, IS A
SUBSTITUTION OF AN HYPOTHETICAL CASE FOR THE CASE ACTUALLY BEFORE THE
COURT.  I MIGHT AGREE WITH THE COURT'S DISPOSITION OF THE HYPOTHETICAL
CASE.  FN8  THE LIBERTY OF EVERY AMERICAN CITIZEN FREELY TO COME AND TO
GO MUST FREQUENTLY, IN THE FACE OF SUDDEN DANGER, BE TEMPORARILY
LIMITED OR SUSPENDED.  THE CIVIL AUTHORITIES MUST OFTEN RESORT TO THE
EXPEDIENT OF EXCLUDING CITIZENS TEMPORARILY FROM A LOCALITY.  THE
DRAWING OF FIRE LINES IN THE CASE OF A CONFLAGRATION, THE REMOVAL OF
PERSONS FROM THE AREA WHERE A PESTILENCE HAS BROKEN OUT, ARE FAMILIAR
EXAMPLES.  IF THE EXCLUSION WORKED BY EXCLUSION ORDER NO. 34 WERE OF
THAT NATURE THE HIRABAYASHI CASE WOULD BE AUTHORITY FOR SUSTAINING IT.
BUT THE FACTS ABOVE RECITED, AND THOSE SET FORTH IN EX PARTE ENDO,
SUPRA, SHOW THAT THE EXCLUSION WAS BUT A PART OF AN OVER-ALL PLAN FOR
FORCEABLE DETENTION.  THIS CASE CANNOT, THEREFORE, BE DECIDED ON ANY
SUCH NARROW GROUND AS THE POSSIBLE VALIDITY OF A TEMPORARY EXCLUSION
ORDER UNDER WHICH THE RESIDENTS OF AN AREA ARE GIVEN AN OPPORTUNITY TO
LEAVE AND GO ELSEWHERE IN THEIR NATIVE LAND OUTSIDE THE BOUNDARIES OF A
MILITARY AREA.  TO MAKE THE CASE TURN ON ANY SUCH ASSUMPTION IS TO SHUT
OUR EYES TO REALITY. 

AS I HAVE SAID ABOVE, THE PETITIONER, PRIOR TO HIS ARREST, WAS FACED
WITH TWO DIAMETRICALLY CONTRADICTORY ORDERS GIVEN SANCTION BY THE ACT
OF CONGRESS OF MARCH 21, 1942.  THE EARLIER OF THOSE ORDERS MADE HIM A
CRIMINAL IF HE LEFT THE ZONE IN WHICH HE RESIDED; THE LATER MADE HIM A
CRIMINAL IF HE DID NOT LEAVE. 

I HAD SUPPOSED THAT IF A CITIZEN WAS CONSTRAINED BY TWO LAWS, OR TWO
ORDERS HAVING THE FORCE OF LAW, AND OBEDIENCE TO ONE WOULD VIOLATE THE
OTHER, TO PUNISH HIM FOR VIOLATION OF EITHER WOULD DENY HIM DUE PROCESS
OF LAW.  AND I HAD SUPPOSED THAT UNDER THESE CIRCUMSTANCES A CONVICTION
FOR VIOLATING ONE OF THE ORDERS COULD NOT STAND. 

WE CANNOT SHUT OUR EYES TO THE FACT THAT HAD THE PETITIONER ATTEMPTED
TO VIOLATE PROCLAMATION NO. 4 AND LEAVE THE MILITARY AREA IN WHICH HE
LIVED HE WOULD HAVE BEEN ARRESTED AND TRIED AND CONVICTED FOR VIOLATION
OF PROCLAMATION NO. 4.  THE TWO CONFLICTING ORDERS, ONE WHICH COMMANDED
HIM TO STAY AND THE OTHER WHICH COMMANDED HIM TO GO, WERE NOTHING BUT A
CLEVERLY DEVISED TRAP TO ACCOMPLISH THE REAL PURPOSE OF THE MILITARY
AUTHORITY, WHICH WAS TO LOCK HIM UP IN A CONCENTRATION CAMP.  THE ONLY
COURSE BY WHICH THE PETITIONER COULD AVOID ARREST AND PROSECUTION WAS
TO GO TO THAT CAMP ACCORDING TO INSTRUCTIONS TO BE GIVEN HIM WHEN HE
REPORTED AT A CIVIL CONTROL CENTER.  WE KNOW THAT IS THE FACT.  WHY
SHOULD WE SET UP A FIGMENTARY AND ARTIFICIAL SITUATION INSTEAD OF
ADDRESSING OURSELVES TO THE ACTUALITIES OF THE CASE? 

THESE STARK REALITIES ARE MET BY THE SUGGESTION THAT IT IS LAWFUL TO
COMPEL AN AMERICAN CITIZEN TO SUBMIT TO ILLEGAL IMPRISONMENT ON THE
ASSUMPTION THAT HE MIGHT, AFTER GOING TO THE ASSEMBLY CENTER, APPLY FOR
HIS DISCHARGE BY SUING OUT A WRIT OF HABEAS CORPUS, AS WAS DONE IN THE
ENDO CASE, SUPRA.  THE ANSWER, OF COURSE, IS THAT WHERE HE WAS SUBJECT
TO TWO CONFLICTING LAWS HE WAS NOT BOUND, IN ORDER TO ESCAPE VIOLATION
OF ONE OR THE OTHER, TO SURRENDER HIS LIBERTY FOR ANY PERIOD.  NOR WILL
IT DO TO SAY THAT THE DETENTION WAS A NECESSARY PART OF THE PROCESS OF
EVACUATION, AND SO WE ARE HERE CONCERNED ONLY WITH THE VALIDITY OF THE
LATTER. 

AGAIN IT IS A NEW DOCTRINE OF CONSTITUTIONAL LAW THAT ONE INDICTED
FOR DISOBEDIENCE TO AN UNCONSTITUTIONAL STATUTE MAY NOT DEFEND ON THE
GROUND OF THE INVALIDITY OF THE STATUTE BUT MUST OBEY IT THOUGH HE
KNOWS IT IS NO LAW AND, AFTER HE HAS SUFFERED THE DISGRACE OF
CONVICTION AND LOST HIS LIBERTY BY SENTENCE, THEN, AND NOT BEFORE,
SEEK, FROM WITHIN PRISON WALLS, TO TEST THE VALIDITY OF THE LAW. 

MOREOVER, IT IS BESIDE THE POINT TO REST DECISION IN PART ON THE FACT
THAT THE PETITIONER, FOR HIS OWN REASONS, WISHED TO REMAIN IN HIS
HOME.  IF, AS IS THE FACT, HE WAS CONSTRAINED SO TO DO, IT IS INDEED A
NARROW APPLICATION OF CONSTITUTIONAL RIGHTS TO IGNORE THE ORDER WHICH
CONSTRAINED HIM, IN ORDER TO SUSTAIN HIS CONVICTION FOR VIOLATION OF
ANOTHER CONTRADICTORY ORDER. 

I WOULD REVERSE THE JUDGMENT OF CONVICTION. 

FN1  7 FED. REG. 1407. 

FN2  7 FED. REG. 2320. 

FN3  56 STAT. 173. 

FN4  7 FED. REG. 2601. 

FN5  THE ITALICS IN THE QUOTATION ARE MINE.  THE USE OF THE WORD
"VOLUNTARILY" EXHIBITS A GRIM IRONY PROBABLY NOT LOST ON PETITIONER AND
OTHERS IN LIKE CASE.  EITHER SO, OR ITS USE WAS A DISINGENUOUS ATTEMPT
TO CAMOUFLAGE THE COMPULSION WHICH WAS TO BE APPLIED. 

FN6  7 FED. REG. 3967. 

FN7  7 FED. REG. 2165. 

FN8  MY AGREEMENT WOULD DEPEND ON THE DEFINITION AND APPLICATION OF
THE TERMS "TEMPORARY" AND "EMERGENCY."  NO PRONOUNCEMENT OF THE
COMMANDING OFFICER CAN, IN MY VIEW, PRECLUDE JUDICIAL INQUIRY AND
DETERMINATION WHETHER AN EMERGENCY EVER EXISTED AND WHETHER, IF SO, IT
REMAINED, AT THE DATE OF THE RESTRAINT OUT OF WHICH THE LITIGATION
AROSE.  CF. CHASTLETON CORP. V. SINCLAIR, 264 U.S. 543. 

MR. JUSTICE MURPHY, DISSENTING. 

THIS EXCLUSION OF "ALL PERSONS OF JAPANESE ANCESTRY, BOTH ALIEN AND
NON-ALIEN," FROM THE PACIFIC COAST AREA ON A PLEA OF MILITARY NECESSITY
IN THE ABSENCE OF MARTIAL LAW OUGHT NOT TO BE APPROVED.  SUCH EXCLUSION
GOES OVER "THE VERY BRINK OF CONSTITUTIONAL POWER" AND FALLS INTO THE
UGLY ABYSS OF RACISM. 

IN DEALING WITH MATTERS RELATING TO THE PROSECUTION AND PROGRESS OF A
WAR, WE MUST ACCORD GREAT RESPECT AND CONSIDERATION TO THE JUDGMENTS OF
THE MILITARY AUTHORITIES WHO ARE ON THE SCENE AND WHO HAVE FULL
KNOWLEDGE OF THE MILITARY FACTS.  THE SCOPE OF THEIR DISCRETION MUST,
AS A MATTER OF NECESSITY AND COMMON SENSE, BE WIDE.  AND THEIR
JUDGMENTS OUGHT NOT TO BE OVERRULED LIGHTLY BY THOSE WHOSE TRAINING AND
DUTIES ILL-EQUIP THEM TO DEAL INTELLIGENTLY WITH MATTERS SO VITAL TO
THE PHYSICAL SECURITY OF THE NATION. 

AT THE SAME TIME, HOWEVER, IT IS ESSENTIAL THAT THERE BE DEFINITE
LIMITS TO MILITARY DISCRETION, ESPECIALLY WHERE MARTIAL LAW HAS NOT
BEEN DECLARED.  INDIVIDUALS MUST NOT BE LEFT IMPOVERISHED OF THEIR
CONSTITUTIONAL RIGHTS ON A PLEA OF MILITARY NECESSITY THAT HAS NEITHER
SUBSTANCE NOR SUPPORT.  THUS, LIKE OTHER CLAIMS CONFLICTING WITH THE
ASSERTED CONSTITUTIONAL RIGHTS OF THE INDIVIDUAL, THE MILITARY CLAIM
MUST SUBJECT ITSELF TO THE JUDICIAL PROCESS OF HAVING ITS
REASONABLENESS DETERMINED AND ITS CONFLICTS WITH OTHER INTERESTS
RECONCILED.  "WHAT ARE THE ALLOWABLE LIMITS OF MILITARY DISCRETION, AND
WHETHER OR NOT THEY HAVE BEEN OVERSTEPPED IN A PARTICULAR CASE, ARE
JUDICIAL QUESTIONS."  STERLING V. CONSTANTIN, 287 U.S. 378, 401. 

THE JUDICIAL TEST OF WHETHER THE GOVERNMENT, ON A PLEA OF MILITARY
NECESSITY, CAN VALIDLY DEPRIVE AN INDIVIDUAL OF ANY OF HIS
CONSTITUTIONAL RIGHTS IS WHETHER THE DEPRIVATION IS REASONABLY RELATED
TO A PUBLIC DANGER THAT IS SO "IMMEDIATE, IMMINENT, AND IMPENDING" AS
NOT TO ADMIT OF DELAY AND NOT TO PERMIT THE INTERVENTION OF ORDINARY
CONSTITUTIONAL PROCESSES TO ALLEVIATE THE DANGER.  UNITED STATES V.
RUSSELL, 13 WALL.  623, 627-8; MITCHELL V. HARMONY, 13 HOW.  115, 134
5; RAYMOND V. THOMAS, 91 U.S. 712, 716.  CIVILIAN EXCLUSION ORDER NO.
34, BANISHING FROM A PRESCRIBED AREA OF THE PACIFIC COAST "ALL PERSONS
OF JAPANESE ANCESTRY, BOTH ALIEN AND NON-ALIEN," CLEARLY DOES NOT MEET
THAT TEST.  BEING AN OBVIOUS RACIAL DISCRIMINATION, THE ORDER DEPRIVES
ALL THOSE WITHIN ITS SCOPE OF THE EQUAL PROTECTION OF THE LAWS AS
GUARANTEED BY THE FIFTH AMENDMENT.  IT FURTHER DEPRIVES THESE
INDIVIDUALS OF THEIR CONSTITUTIONAL RIGHTS TO LIVE AND WORK WHERE THEY
WILL, TO ESTABLISH A HOME WHERE THEY CHOOSE AND TO MOVE ABOUT FREELY. 
IN EXCOMMUNICATING THEM WITHOUT BENEFIT OF HEARINGS, THIS ORDER ALSO
DEPRIVES THEM OF ALL THEIR CONSTITUTIONAL RIGHTS TO PROCEDURAL DUE
PROCESS.  YET NO REASONABLE RELATION TO AN "IMMEDIATE, IMMINENT, AND
IMPENDING" PUBLIC DANGER IS EVIDENT TO SUPPORT THIS RACIAL RESTRICTION
WHICH IS ONE OF THE MOST SWEEPING AND COMPLETE DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS IN THE HISTORY OF THIS NATION IN THE ABSENCE OF
MARTIAL LAW. 

IT MUST BE CONCEDED THAT THE MILITARY AND NAVAL SITUATION IN THE
SPRING OF 1942 WAS SUCH AS TO GENERATE A VERY REAL FEAR OF INVASION OF
THE PACIFIC COAST, ACCOMPANIED BY FEARS OF SABOTAGE AND ESPIONAGE IN
THAT AREA.  THE MILITARY COMMAND WAS THEREFORE JUSTIFIED IN ADOPTING
ALL REASONABLE MEANS NECESSARY TO COMBAT THESE DANGERS.  IN ADJUDGING
THE MILITARY ACTION TAKEN IN LIGHT OF THE THEN APPARENT DANGERS, WE
MUST NOT ERECT TOO HIGH OR TOO METICULOUS STANDARDS; IT IS NECESSARY
ONLY THAT THE ACTION HAVE SOME REASONABLE RELATION TO THE REMOVAL OF
THE DANGERS OF INVASION, SABOTAGE AND ESPIONAGE.  BUT THE EXCLUSION,
EITHER TEMPORARILY OR PERMANENTLY, OF ALL PERSONS WITH JAPANESE BLOOD
IN THEIR VEINS HAS NO SUCH REASONABLE RELATION.  AND THAT RELATION IS
LACKING BECAUSE THE EXCLUSION ORDER NECESSARILY MUST RELY FOR ITS
REASONABLENESS UPON THE ASSUMPTION THAT ALL PERSONS OF JAPANESE
ANCESTRY MAY HAVE A DANGEROUS TENDENCY TO COMMIT SABOTAGE AND ESPIONAGE
AND TO AID OUR JAPANESE ENEMY IN OTHER WAYS.  IT IS DIFFICULT TO
BELIEVE THAT REASON, LOGIC OR EXPERIENCE COULD BE MARSHALLED IN SUPPORT
OF SUCH AN ASSUMPTION. 

THAT THIS FORCED EXCLUSION WAS THE RESULT IN GOOD MEASURE OF THIS
ERRONEOUS ASSUMPTION OF RACIAL GUILT RATHER THAN BONA FIDE MILITARY
NECESSITY IS EVIDENCED BY THE COMMANDING GENERAL'S FINAL REPORT ON THE
EVACUATION FROM THE PACIFIC COAST AREA.  FN1  IN IT HE REFERS TO ALL
INDIVIDUALS OF JAPANESE DESCENT AS "SUBVERSIVE," AS BELONGING TO "AN
ENEMY RACE" WHOSE "RACIAL STRAINS ARE UNDILUTED," AND AS CONSTITUTING
"OVER 112,000 POTENTIAL ENEMIES  ...  AT LARGE TODAY" ALONG THE PACIFIC
COAST.  FN2  IN SUPPORT OF THIS BLANKET CONDEMNATION OF ALL PERSONS OF
JAPANESE DESCENT, HOWEVER, NO RELIABLE EVIDENCE IS CITED TO SHOW THAT
SUCH INDIVIDUALS WERE GENERALLY DISLOYAL,  FN3 OR HAD GENERALLY SO
CONDUCTED THEMSELVES IN THIS AREA AS TO CONSTITUTE A SPECIAL MENACE TO
DEFENSE INSTALLATIONS OR WAR INDUSTRIES, OR HAD OTHERWISE BY THEIR
BEHAVIOR FURNISHED REASONABLE GROUND FOR THEIR EXCLUSION AS A GROUP. 

JUSTIFICATION FOR THE EXCLUSION IS SOUGHT, INSTEAD, MAINLY UPON
QUESTIONABLE RACIAL AND SOCIOLOGICAL GROUNDS NOT ORDINARILY WITHIN THE
REALM OF EXPERT MILITARY JUDGMENT, SUPPLEMENTED BY CERTAIN SEMI
MILITARY CONCLUSIONS DRAWN FROM AN UNWARRANTED USE OF CIRCUMSTANTIAL
EVIDENCE.  INDIVIDUALS OF JAPANESE ANCESTRY ARE CONDEMNED BECAUSE THEY
ARE SAID TO BE "A LARGE, UNASSIMILATED, TIGHTLY KNIT RACIAL GROUP,
BOUND TO AN ENEMY NATION BY STRONG TIES OF RACE, CULTURE, CUSTOM AND
RELIGION."  FN4  THEY ARE CLAIMED TO BE GIVEN TO "EMPEROR WORSHIPPING
CEREMONIES"  FN5  AND TO "DUAL CITIZENSHIP."  FN6  JAPANESE LANGUAGE
SCHOOLS AND ALLEGEDLY PRO-JAPANESE ORGANIZATIONS ARE CITED AS EVIDENCE
OF POSSIBLE GROUP DISLOYALTY,  FN7  TOGETHER WITH FACTS AS TO CERTAIN
PERSONS BEING EDUCATED AND RESIDING AT LENGTH IN JAPAN.  FN8  IT IS
INTIMATED THAT MANY OF THESE INDIVIDUALS DELIBERATELY RESIDED "ADJACENT
TO STRATEGIC POINTS," THUS ENABLING THEM "TO CARRY INTO EXECUTION A
TREMENDOUS PROGRAM OF SABOTAGE ON A MASS SCALE SHOULD ANY CONSIDERABLE
NUMBER OF THEM HAVE BEEN INCLINED TO DO SO."  FN9  THE NEED FOR
PROTECTIVE CUSTODY IS ALSO ASSERTED.  THE REPORT REFERS WITHOUT
IDENTITY TO "NUMEROUS INCIDENTS OF VIOLENCE" AS WELL AS TO OTHER
ADMITTEDLY UNVERIFIED OR CUMULATIVE INCIDENTS.  FROM THIS, PLUS CERTAIN
OTHER EVENTS NOT SHOWN TO HAVE BEEN CONNECTED WITH THE JAPANESE
AMERICANS, IT IS CONCLUDED THAT THE "SITUATION WAS FRAUGHT WITH DANGER
TO THE JAPANESE POPULATION ITSELF" AND THAT THE GENERAL PUBLIC "WAS
READY TO TAKE MATTERS INTO ITS OWN HANDS."  FN10  FINALLY, IT IS
INTIMATED, THOUGH NOT DIRECTLY CHARGED OR PROVED, THAT PERSONS OF
JAPANESE ANCESTRY WERE RESPONSIBLE FOR THREE MINOR ISOLATED SHELLINGS
AND BOMBINGS OF THE PACIFIC COAST AREA,  FN11  AS WELL AS FOR
UNIDENTIFIED RADIO TRANSMISSIONS AND NIGHT SIGNALLING. 

THE MAIN REASONS RELIED UPON BY THOSE RESPONSIBLE FOR THE FORCED
EVACUATION, THEREFORE, DO NOT PROVE A REASONABLE RELATION BETWEEN THE
GROUP CHARACTERISTICS OF JAPANESE AMERICANS AND THE DANGERS OF
INVASION, SABOTAGE AND ESPIONAGE.  THE REASONS APPEAR, INSTEAD, TO BE
LARGELY AN ACCUMULATION OF MUCH OF THE MISINFORMATION, HALF-TRUTHS AND
INSINUATIONS THAT FOR YEARS HAVE BEEN DIRECTED AGAINST JAPANESE
AMERICANS BY PEOPLE WITH RACIAL AND ECONOMIC PREJUDICES - THE SAME
PEOPLE WHO HAVE BEEN AMONG THE FOREMOST ADVOCATES OF THE EVACUATION. 
FN12  A MILITARY JUDGMENT BASED UPON SUCH RACIAL AND SOCIOLOGICAL
CONSIDERATIONS IS NOT ENTITLED TO THE GREAT WEIGHT ORDINARILY GIVEN THE
JUDGMENTS BASED UPON STRICTLY MILITARY CONSIDERATIONS.  ESPECIALLY IS
THIS SO WHEN EVERY CHARGE RELATIVE TO RACE, RELIGION, CULTURE,
GEOGRAPHICAL LOCATION, AND LEGAL AND ECONOMIC STATUS HAS BEEN
SUBSTANTIALLY DISCREDITED BY INDEPENDENT STUDIES MADE BY EXPERTS IN
THESE MATTERS.  FN13 

THE MILITARY NECESSITY WHICH IS ESSENTIAL TO THE VALIDITY OF THE
EVACUATION ORDER THUS RESOLVES ITSELF INTO A FEW INTIMATIONS THAT
CERTAIN INDIVIDUALS ACTIVELY AIDED THE ENEMY, FROM WHICH IT IS INFERRED
THAT THE ENTIRE GROUP OF JAPANESE AMERICANS COULD NOT BE TRUSTED TO BE
OR REMAIN LOYAL TO THE UNITED STATES.  NO ONE DENIES, OF COURSE, THAT
THERE WERE SOME DISLOYAL PERSONS OF JAPANESE DESCENT ON THE PACIFIC
COAST WHO DID ALL IN THEIR POWER TO AID THEIR ANCESTRAL LAND.  SIMILAR
DISLOYAL ACTIVITIES HAVE BEEN ENGAGED IN BY MANY PERSONS OF GERMAN,
ITALIAN AND EVEN MORE PIONEER STOCK IN OUR COUNTRY.  BUT TO INFER THAT
EXAMPLES OF INDIVIDUAL DISLOYALTY PROVE GROUP DISLOYALTY AND JUSTIFY
DISCRIMINATORY ACTION AGAINST THE ENTIRE GROUP IS TO DENY THAT UNDER
OUR SYSTEM OF LAW INDIVIDUAL GUILT IS THE SOLE BASIS FOR DEPRIVATION OF
RIGHTS.  MOREOVER, THIS INFERENCE, WHICH IS AT THE VERY HEART OF THE
EVACUATION ORDERS, HAS BEEN USED IN SUPPORT OF THE ABHORRENT AND
DESPICABLE TREATMENT OF MINORITY GROUPS BY THE DICTATORIAL TYRANNIES
WHICH THIS NATION IS NOW PLEDGED TO DESTROY.  TO GIVE CONSTITUTIONAL
SANCTION TO THAT INFERENCE IN THIS CASE, HOWEVER WELL-INTENTIONED MAY
HAVE BEEN THE MILITARY COMMAND ON THE PACIFIC COAST, IS TO ADOPT ONE OF
THE CRUELEST OF THE RATIONALES USED BY OUR ENEMIES TO DESTROY THE
DIGNITY OF THE INDIVIDUAL AND TO ENCOURAGE AND OPEN THE DOOR TO
DISCRIMINATORY ACTIONS AGAINST OTHER MINORITY GROUPS IN THE PASSIONS OF
TOMORROW. 

NO ADEQUATE REASON IS GIVEN FOR THE FAILURE TO TREAT THESE JAPANESE
AMERICANS ON AN INDIVIDUAL BASIS BY HOLDING INVESTIGATIONS AND HEARINGS
TO SEPARATE THE LOYAL FROM THE DISLOYAL, AS WAS DONE IN THE CASE OF
PERSONS OF GERMAN AND ITALIAN ANCESTRY.  SEE HOUSE REPORT NO. 2124(77TH
CONG., 2D SESS.) 247-52.  IT IS ASSERTED MERELY THAT THE LOYALTIES OF
THIS GROUP "WERE UNKNOWN AND TIME WAS OF THE ESSENCE."  FN14  YET
NEARLY FOUR MONTHS ELAPSED AFTER PEARL HARBOR BEFORE THE FIRST
EXCLUSION ORDER WAS ISSUED; NEARLY EIGHT MONTHS WENT BY UNTIL THE LAST
ORDER WAS ISSUED; AND THE LAST OF THESE "SUBVERSIVE" PERSONS WAS NOT
ACTUALLY REMOVED UNTIL ALMOST ELEVEN MONTHS HAD ELAPSED.  LEISURE AND
DELIBERATION SEEM TO HAVE BEEN MORE OF THE ESSENCE THAN SPEED.  AND THE
FACT THAT CONDITIONS WERE NOT SUCH AS TO WARRANT A DECLARATION OF
MARTIAL LAW ADDS STRENGTH TO THE BELIEF THAT THE FACTORS OF TIME AND
MILITARY NECESSITY WERE NOT AS URGENT AS THEY HAVE BEEN REPRESENTED TO
BE. 

MOREOVER, THERE WAS NO ADEQUATE PROOF THAT THE FEDERAL BUREAU OF
INVESTIGATION AND THE MILITARY AND NAVAL INTELLIGENCE SERVICES DID NOT
HAVE THE ESPIONAGE AND SABOTAGE SITUATION WELL IN HAND DURING THIS LONG
PERIOD.  NOR IS THERE ANY DENIAL OF THE FACT THAT NOT ONE PERSON OF
JAPANESE ANCESTRY WAS ACCUSED OR CONVICTED OF ESPIONAGE OR SABOTAGE
AFTER PEARL HARBOR WHILE THEY WERE STILL FREE,  FN15  A FACT WHICH IS
SOME EVIDENCE OF THE LOYALTY OF THE VAST MAJORITY OF THESE INDIVIDUALS
AND OF THE EFFECTIVENESS OF THE ESTABLISHED METHODS OF COMBATTING THESE
EVILS.  IT SEEMS INCREDIBLE THAT UNDER THESE CIRCUMSTANCES IT WOULD
HAVE BEEN IMPOSSIBLE TO HOLD LOYALTY HEARINGS FOR THE MERE 112,000
PERSONS INVOLVED - OR AT LEAST FOR THE 70,000 AMERICAN CITIZENS -
ESPECIALLY WHEN A LARGE PART OF THIS NUMBER REPRESENTED CHILDREN AND
ELDERLY MEN AND WOMEN.  FN16 ANY INCONVENIENCE THAT MAY HAVE
ACCOMPANIED AN ATTEMPT TO CONFORM TO PROCEDURAL DUE PROCESS CANNOT BE
SAID TO JUSTIFY VIOLATIONS OF CONSTITUTIONAL RIGHTS OF INDIVIDUALS. 

I DISSENT, THEREFORE, FROM THIS LEGALIZATION OF RACISM.  RACIAL
DISCRIMINATION IN ANY FORM AND IN ANY DEGREE HAS NO JUSTIFIABLE PART
WHATEVER IN OUR DEMOCRATIC WAY OF LIFE.  IT IS UNATTRACTIVE IN ANY
SETTING BUT IT IS UTTERLY REVOLTING AMONG A FREE PEOPLE WHO HAVE
EMBRACED THE PRINCIPLES SET FORTH IN THE CONSTITUTION OF THE UNITED
STATES.  ALL RESIDENTS OF THIS NATION ARE KIN IN SOME WAY BY BLOOD OR
CULTURE TO A FOREIGN LAND.  YET THEY ARE PRIMARILY AND NECESSARILY A
PART OF THE NEW AND DISTINCT CIVILIZATION OF THE UNITED STATES.  THEY
MUST ACCORDINGLY BE TREATED AT ALL TIMES AS THE HEIRS OF THE AMERICAN
EXPERIMENT AND AS ENTITLED TO ALL THE RIGHTS AND FREEDOMS GUARANTEED BY
THE CONSTITUTION. 

FN1  FINAL REPORT, JAPANESE EVACUATION FROM THE WEST COAST, 1942, BY
LT. GEN. J. L. DEWITT.  THIS REPORT IS DATED JUNE 5, 1943, BUT WAS NOT
MADE PUBLIC UNTIL JANUARY, 1944. 

FN2  FURTHER EVIDENCE OF THE COMMANDING GENERAL'S ATTITUDE TOWARD
INDIVIDUALS OF JAPANESE ANCESTRY IS REVEALED IN HIS VOLUNTARY TESTIMONY
ON APRIL 13, 1943, IN SAN FRANCISCO BEFORE THE HOUSE NAVAL AFFAIRS
SUBCOMMITTEE TO INVESTIGATE CONGESTED AREAS, PART 3, PP. 739-40(78TH
CONG., 1ST SESS.): 

"I DON'T WANT ANY OF THEM (PERSONS OF JAPANESE ANCESTRY) HERE.  THEY
ARE A DANGEROUS ELEMENT.  THERE IS NO WAY TO DETERMINE THEIR LOYALTY. 
THE WEST COAST CONTAINS TOO MANY VITAL INSTALLATIONS ESSENTIAL TO THE
DEFENSE OF THE COUNTRY TO ALLOW ANY JAPANESE ON THIS COAST  ....  THE
DANGER OF THE JAPANESE WAS, AND IS NOW - IF THEY ARE PERMITTED TO COME
BACK - ESPIONAGE AND SABOTAGE.  IT MAKES NO DIFFERENCE WHETHER HE IS AN
AMERICAN CITIZEN, HE IS STILL A JAPANESE.  AMERICAN CITIZENSHIP DOES
NOT NECESSARILY DETERMINE LOYALTY  ....  BUT WE MUST WORRY ABOUT THE
JAPANESE ALL THE TIME UNTIL HE IS WIPED OFF THE MAP.  SABOTAGE AND
ESPIONAGE WILL MAKE PROBLEMS AS LONG AS HE IS ALLOWED IN THIS AREA
...." 

FN3  THE FINAL REPORT, P. 9, CASTS A CLOUD OF SUSPICION OVER THE
ENTIRE GROUP BY SAYING THAT "WHILE IT WAS BELIEVED THAT SOME WERE
LOYAL, IT WAS KNOWN THAT MANY WERE NOT." 

FN4  FINAL REPORT, P. VII; SEE ALSO PP. 9, 17.  TO THE EXTENT THAT
ASSIMILATION IS A PROBLEM, IT IS LARGELY THE RESULT OF CERTAIN SOCIAL
CUSTOMS AND LAWS OF THE AMERICAN GENERAL PUBLIC.  STUDIES DEMONSTRATE
THAT PERSONS OF JAPANESE DESCENT ARE READILY SUSCEPTIBLE TO INTEGRATION
IN OUR SOCIETY IF GIVEN THE OPPORTUNITY.  STRONG, THE SECOND-GENERATION
JAPANESE PROBLEM (1934); SMITH, AMERICANS IN PROCESS (1937); MEARS,
RESIDENT ORIENTALS ON THE AMERICAN PACIFIC COAST (1928); MILLIS, THE
JAPANESE PROBLEM IN THE UNITED STATES (1942).  THE FAILURE TO
ACCOMPLISH AN IDEAL STATUS OF ASSIMILATION, THEREFORE, CANNOT BE
CHARGED TO THE REFUSAL OF THESE PERSONS TO BECOME AMERICANIZED OR TO
THEIR LOYALTY TO JAPAN.  AND THE RETENTION BY SOME PERSONS OF CERTAIN
CUSTOMS AND RELIGIOUS PRACTICES OF THEIR ANCESTORS IS NO CRITERION OF
THEIR LOYALTY TO THE UNITED STATES. 

FN5  FINAL REPORT, PP. 10-11.  NO SINISTER CORRELATION BETWEEN THE
EMPEROR WORSHIPPING ACTIVITIES AND DISLOYALTY TO AMERICA WAS SHOWN. 

FN6  FINAL REPORT, P. 22.  THE CHARGE OF "DUAL CITIZENSHIP" SPRINGS
FROM A MISUNDERSTANDING OF THE SIMPLE FACT THAT JAPAN IN THE PAST USED
THE DOCTRINE OF JUS SANGUINIS, AS SHE HAD A RIGHT TO DO UNDER
INTERNATIONAL LAW, AND CLAIMED AS HER CITIZENS ALL PERSONS BORN OF
JAPANESE NATIONALS WHEREVER LOCATED.  JAPAN HAS GREATLY MODIFIED THIS
DOCTRINE, HOWEVER, BY ALLOWING ALL JAPANESE BORN IN THE UNITED STATES
TO RENOUNCE ANY CLAIM OF DUAL CITIZENSHIP AND BY RELEASING HER CLAIM AS
TO ALL BORN IN THE UNITED STATES AFTER 1925.  SEE FREEMAN, "GENESIS,
EXODUS, AND LEVITICUS: GENEALOGY, EVACUATION, AND LAW," 28 CORNELL L.Q.
414, 447-8, AND AUTHORITIES THERE CITED; MCWILLIAMS, PREJUDICE, 123
4(1944). 

FN7  FINAL REPORT, PP. 12-13.  WE HAVE HAD VARIOUS FOREIGN LANGUAGE
SCHOOLS IN THIS COUNTRY FOR GENERATIONS WITHOUT CONSIDERING THEIR
EXISTENCE AS GROUND FOR RACIAL DISCRIMINATION.  NO SUBVERSIVE
ACTIVITIES OR TEACHINGS HAVE BEEN SHOWN IN CONNECTION WITH THE JAPANESE
SCHOOLS.  MCWILLIAMS, PREJUDICE, 121-3(1944). 

FN8  FINAL REPORT, PP. 13-15.  SUCH PERSONS CONSTITUTE A VERY SMALL
PART OF THE ENTIRE GROUP AND MOST OF THEM BELONG TO THE KIBEI MOVEMENT
THE ACTIONS AND MEMBERSHIP OF WHICH ARE WELL KNOWN TO OUR GOVERNMENT
AGENTS. 

FN9  FINAL REPORT, P. 10; SEE ALSO PP. VII, 9, 15-17.  THIS
INSINUATION, BASED PURELY UPON SPECULATION AND CIRCUMSTANTIAL EVIDENCE,
COMPLETELY OVERLOOKS THE FACT THAT THE MAIN GEOGRAPHIC PATTERN OF
JAPANESE POPULATION WAS FIXED MANY YEARS AGO WITH REFERENCE TO
ECONOMIC, SOCIAL AND SOIL CONDITIONS.  LIMITED OCCUPATIONAL OUTLETS AND
SOCIAL PRESSURES ENCOURAGED THEIR CONCENTRATION NEAR THEIR INITIAL
POINTS OF ENTRY ON THE PACIFIC COAST.  THAT THESE POINTS MAY NOW BE
NEAR CERTAIN STRATEGIC MILITARY AND INDUSTRIAL AREAS IS NO PROOF OF A
DIABOLICAL PURPOSE ON THE PART OF JAPANESE AMERICANS.  SEE MCWILLIAMS,
PREJUDICE, 119-121(1944); HOUSE REPORT NO. 2124(77TH CONG., 2D SESS.),
59-93. 

FN10  FINAL REPORT, PP. 8-9.  THIS DANGEROUS DOCTRINE OF PROTECTIVE
CUSTODY, AS PROVED BY RECENT EUROPEAN HISTORY, SHOULD HAVE ABSOLUTELY
NO STANDING AS AN EXCUSE FOR THE DEPRIVATION OF THE RIGHTS OF MINORITY
GROUPS.  SEE HOUSE REPORT NO. 1911(77TH CONG., 2D SESS.) 1-2.  CF.
HOUSE REPORT NO. 2124(77TH CONG., 2D SESS.) 145-7.  IN THIS INSTANCE,
MOREOVER, THERE ARE ONLY TWO MINOR INSTANCES OF VIOLENCE ON RECORD
INVOLVING PERSONS OF JAPANESE ANCESTRY.  MCWILLIAMS, WHAT ABOUT OUR
JAPANESE-AMERICANS?  PUBLIC AFFAIRS PAMPHLETS, NO. 91, P. 8(1944). 

FN11  FINAL REPORT, P. 18.  ONE OF THESE INCIDENTS (THE REPUTED
DROPPING OF INCENDIARY BOMBS ON AN OREGON FOREST) OCCURRED ON SEPT. 9,
1942 - A CONSIDERABLE TIME AFTER THE JAPANESE AMERICANS HAD BEEN
EVACUATED FROM THEIR HOMES AND PLACED IN ASSEMBLY CENTERS.  SEE NEW
YORK TIMES, SEPT. 15, 1942, P. 1, COL. 3. 

FN12  SPECIAL INTEREST GROUPS WERE EXTREMELY ACTIVE IN APPLYING
PRESSURE FOR MASS EVACUATION.  SEE HOUSE REPORT NO. 2124(77TH CONG., 2D
SESS.) 154-6; MCWILLIAMS, PREJUDICE, 126-8(1944).  MR. AUSTIN E. ANSON,
MANAGING SECRETARY OF THE SALINAS VEGETABLE GROWER-SHIPPER ASSOCIATION,
HAS FRANKLY ADMITTED THAT "WE'RE CHARGED WITH WANTING TO GET RID OF THE
JAPS FOR SELFISH REASONS ....  WE DO.  IT'S A QUESTION OF WHETHER THE
WHITE MAN LIVES ON THE PACIFIC COAST OR THE BROWN MEN.  THEY CAME INTO
THIS VALLEY TO WORK, AND THEY STAYED TO TAKE OVER  ....  THEY UNDERSELL
THE WHITE MAN IN THE MARKETS  ....  THEY WORK THEIR WOMEN AND CHILDREN
WHILE THE WHITE FARMER HAS TO PAY WAGES FOR HIS HELP.  IF ALL THE JAPS
WERE REMOVED TOMORROW, WE'D NEVER MISS THEM IN TWO WEEKS, BECAUSE THE
WHITE FARMERS CAN TAKE OVER AND PRODUCE EVERYTHING THE JAP GROWS.  AND
WE DON'T WANT THEM BACK WHEN THE WAR ENDS, EITHER."  QUOTED BY TAYLOR
IN HIS ARTICLE "THE PEOPLE NOBODY WANTS," 214 SAT.  EVE.  POST 24,
66(MAY 9, 1942). 

FN13  SEE NOTES 4-12, SUPRA. 

FN14  FINAL REPORT, P. VII; SEE ALSO, P. 18. 

FN15  THE FINAL REPORT, P. 34, MAKES THE AMAZING STATEMENT THAT AS OF
FEBRUARY 14, 1942, "THE VERY FACT THAT NO SABOTAGE HAS TAKEN PLACE TO
DATE IS A DISTURBING AND CONFIRMING INDICATION THAT SUCH ACTION WILL BE
TAKEN."  APPARENTLY, IN THE MINDS OF THE MILITARY LEADERS, THERE WAS NO
WAY THAT THE JAPANESE AMERICANS COULD ESCAPE THE SUSPICION OF
SABOTAGE. 

FN16  DURING A PERIOD OF SIX MONTHS, THE 112 ALIEN TRIBUNALS OR
HEARING BOARDS SET UP BY THE BRITISH GOVERNMENT SHORTLY AFTER THE
OUTBREAK OF THE PRESENT WAR SUMMONED AND EXAMINED APPROXIMATELY 74,000
GERMAN AND AUSTRIAN ALIENS.  THESE TRIBUNALS DETERMINED WHETHER EACH
INDIVIDUAL ENEMY ALIEN WAS A REAL ENEMY OF THE ALLIES OR ONLY A
"FRIENDLY ENEMY."  ABOUT 64,000 WERE FREED FROM INTERNMENT AND FROM ANY
SPECIAL RESTRICTIONS, AND ONLY 2,000 WERE INTERNED.  KEMPNER, "THE
ENEMY ALIEN PROBLEM IN THE PRESENT WAR," 34 AMER.  JOURN.  OF INT. LAW
443, 444-46; HOUSE REPORT NO. 2124(77TH CONG., 2D SESS.), 280-1. 

MR. JUSTICE JACKSON, DISSENTING. 

KOREMATSU WAS BORN ON OUR SOIL, OF PARENTS BORN IN JAPAN.  THE
CONSTITUTION MAKES HIM A CITIZEN OF THE UNITED STATES BY NATIVITY AND A
CITIZEN OF CALIFORNIA BY RESIDENCE.  NO CLAIM IS MADE THAT HE IS NOT
LOYAL TO THIS COUNTRY.  THERE IS NO SUGGESTION THAT APART FROM THE
MATTER INVOLVED HERE HE IS NOT LAW-ABIDING AND WELL DISPOSED. 
KOREMATSU, HOWEVER, HAS BEEN CONVICTED OF AN ACT NOT COMMONLY A CRIME. 
IT CONSISTS MERELY OF BEING PRESENT IN THE STATE WHEREOF HE IS A
CITIZEN, NEAR THE PLACE WHERE HE WAS BORN, AND WHERE ALL HIS LIFE HE
HAS LIVED.    EVEN MORE UNUSUAL IS THE SERIES OF MILITARY ORDERS WHICH
MADE THIS CONDUCT A CRIME.  THEY FORBID SUCH A ONE TO REMAIN, AND THEY
ALSO FORBID HIM TO LEAVE.  THEY WERE SO DRAWN THAT THE ONLY WAY
KOREMATSU COULD AVOID VIOLATION WAS TO GIVE HIMSELF UP TO THE MILITARY
AUTHORITY.  THIS MEANT SUBMISSION TO CUSTODY, EXAMINATION, AND
TRANSPORTATION OUT OF THE TERRITORY, TO BE FOLLOWED BY INDETERMINATE
CONFINEMENT IN DETENTION CAMPS.    A CITIZEN'S PRESENCE IN THE
LOCALITY, HOWEVER, WAS MADE A CRIME ONLY IF HIS PARENTS WERE OF
JAPANESE BIRTH.  HAD KOREMATSU BEEN ONE OF FOUR - THE OTHERS BEING,
SAY, A GERMAN ALIEN ENEMY, AN ITALIAN ALIEN ENEMY, AND A CITIZEN OF
AMERICAN-BORN ANCESTORS, CONVICTED OF TREASON BUT OUT ON PAROLE - ONLY
KOREMATSU'S PRESENCE WOULD HAVE VIOLATED THE ORDER.  THE DIFFERENCE
BETWEEN THEIR INNOCENCE AND HIS CRIME WOULD RESULT, NOT FROM ANYTHING
HE DID, SAID, OR THOUGHT, DIFFERENT THAN THEY, BUT ONLY IN THAT HE WAS
BORN OF DIFFERENT RACIAL STOCK. 

NOW, IF ANY FUNDAMENTAL ASSUMPTION UNDERLIES OUR SYSTEM, IT IS THAT
GUILT IS PERSONAL AND NOT INHERITABLE.  EVEN IF ALL OF ONE'S
ANTECEDENTS HAD BEEN CONVICTED OF TREASON, THE CONSTITUTION FORBIDS ITS
PENALTIES TO BE VISITED UPON HIM, FOR IT PROVIDES THAT "NO ATTAINDER OF
TREASON SHALL WORK CORRUPTION OF BLOOD, OR FORFEITURE EXCEPT DURING THE
LIFE OF THE PERSON ATTAINTED."  BUT HERE IS AN ATTEMPT TO MAKE AN
OTHERWISE INNOCENT ACT A CRIME MERELY BECAUSE THIS PRISONER IS THE SON
OF PARENTS AS TO WHOM HE HAD NO CHOICE, AND BELONGS TO A RACE FROM
WHICH THERE IS NO WAY TO RESIGN.  IF CONGRESS IN PEACE-TIME LEGISLATION
SHOULD ENACT SUCH A CRIMINAL LAW, I SHOULD SUPPOSE THIS COURT WOULD
REFUSE TO ENFORCE IT. 

BUT THE "LAW" WHICH THIS PRISONER IS CONVICTED OF DISREGARDING IS NOT
FOUND IN AN ACT OF CONGRESS, BUT IN A MILITARY ORDER.  NEITHER THE ACT
OF CONGRESS NOR THE EXECUTIVE ORDER OF THE PRESIDENT, NOR BOTH
TOGETHER, WOULD AFFORD A BASIS FOR THIS CONVICTION.  IT RESTS ON THE
ORDERS OF GENERAL DEWITT.  AND IT IS SAID THAT IF THE MILITARY
COMMANDER HAD REASONABLE MILITARY GROUNDS FOR PROMULGATING THE ORDERS,
THEY ARE CONSTITUTIONAL AND BECOME LAW, AND THE COURT IS REQUIRED TO
ENFORCE THEM.  THERE ARE SEVERAL REASONS WHY I CANNOT SUBSCRIBE TO THIS
DOCTRINE. 

IT WOULD BE IMPRACTICABLE AND DANGEROUS IDEALISM TO EXPECT OR INSIST
THAT EACH SPECIFIC MILITARY COMMAND IN AN AREA OF PROBABLE OPERATIONS
WILL CONFORM TO CONVENTIONAL TESTS OF CONSTITUTIONALITY.  WHEN AN AREA
IS SO BESET THAT IT MUST BE PUT UNDER MILITARY CONTROL AT ALL, THE
PARAMOUNT CONSIDERATION IS THAT ITS MEASURES BE SUCCESSFUL, RATHER THAN
LEGAL.  THE ARMED SERVICES MUST PROTECT A SOCIETY, NOT MERELY ITS
CONSTITUTION.  THE VERY ESSENCE OF THE MILITARY JOB IS TO MARSHAL
PHYSICAL FORCE, TO REMOVE EVERY OBSTACLE TO ITS EFFECTIVENESS, TO GIVE
IT EVERY STRATEGIC ADVANTAGE.  DEFENSE MEASURES WILL NOT, AND OFTEN
SHOULD NOT, BE HELD WITHIN THE LIMITS THAT BIND CIVIL AUTHORITY IN
PEACE.  NO COURT CAN REQUIRE SUCH A COMMANDER IN SUCH CIRCUMSTANCES TO
ACT AS A REASONABLE MAN; HE MAY BE UNREASONABLY CAUTIOUS AND EXACTING. 
PERHAPS HE SHOULD BE. BUT A COMMANDER IN TEMPORARILY FOCUSING THE LIFE
OF A COMMUNITY ON DEFENSE IS CARRYING OUT A MILITARY PROGRAM; HE IS NOT
MAKING LAW IN THE SENSE THE COURTS KNOW THE TERM.  HE ISSUES ORDERS,
AND THEY MAY HAVE A CERTAIN AUTHORITY AS MILITARY COMMANDS, ALTHOUGH
THEY MAY BE VERY BAD AS CONSTITUTIONAL LAW. 

BUT IF WE CANNOT CONFINE MILITARY EXPEDIENTS BY THE CONSTITUTION,
NEITHER WOULD I DISTORT THE CONSTITUTION TO APPROVE ALL THAT THE
MILITARY MAY DEEM EXPEDIENT.  THAT IS WHAT THE COURT APPEARS TO BE
DOING, WHETHER CONSCIOUSLY OR NOT.  I CANNOT SAY, FROM ANY EVIDENCE
BEFORE ME, THAT THE ORDERS OF GENERAL DEWITT WERE NOT REASONABLY
EXPEDIENT MILITARY PRECAUTIONS, NOR COULD I SAY THAT THEY WERE.  BUT
EVEN IF THEY WERE PERMISSIBLE MILITARY PROCEDURES, I DENY THAT IT
FOLLOWS THAT THEY ARE CONSTITUTIONAL.  IF, AS THE COURT HOLDS, IT DOES
FOLLOW, THEN WE MAY AS WELL SAY THAT ANY MILITARY ORDER WILL BE
CONSTITUTIONAL AND HAVE DONE WITH IT. 

THE LIMITATION UNDER WHICH COURTS ALWAYS WILL LABOR IN EXAMINING THE
NECESSITY FOR A MILITARY ORDER ARE ILLUSTRATED BY THIS CASE.  HOW DOES
THE COURT KNOW THAT THESE ORDERS HAVE A REASONABLE BASIS IN NECESSITY? 
NO EVIDENCE WHATEVER ON THAT SUBJECT HAS BEEN TAKEN BY THIS OR ANY
OTHER COURT.  THERE IS SHARP CONTROVERSY AS TO THE CREDIBILITY OF THE
DEWITT REPORT.  SO THE COURT, HAVING NO REAL EVIDENCE BEFORE IT, HAS NO
CHOICE BUT TO ACCEPT GENERAL DEWITT'S OWN UNSWORN, SELF-SERVING
STATEMENT, UNTESTED BY ANY CROSS-EXAMINATION, THAT WHAT HE DID WAS
REASONABLE.  AND THUS IT WILL ALWAYS BE WHEN COURTS TRY TO LOOK INTO
THE REASONABLENESS OF A MILITARY ORDER. 

IN THE VERY NATURE OF THINGS, MILITARY DECISIONS ARE NOT SUSCEPTIBLE
OF INTELLIGENT JUDICIAL APPRAISAL.  THEY DO NOT PRETEND TO REST ON
EVIDENCE, BUT ARE MADE ON INFORMATION THAT OFTEN WOULD NOT BE
ADMISSIBLE AND ON ASSUMPTIONS THAT COULD NOT BE PROVED.  INFORMATION IN
SUPPORT OF AN ORDER COULD NOT BE DISCLOSED TO COURTS WITHOUT DANGER
THAT IT WOULD REACH THE ENEMY.  NEITHER CAN COURTS ACT ON
COMMUNICATIONS MADE IN CONFIDENCE.  HENCE COURTS CAN NEVER HAVE ANY
REAL ALTERNATIVE TO ACCEPTING THE MERE DECLARATION OF THE AUTHORITY
THAT ISSUED THE ORDER THAT IT WAS REASONABLY NECESSARY FROM A MILITARY
VIEWPOINT. 

MUCH IS SAID OF THE DANGER TO LIBERTY FROM THE ARMY PROGRAM FOR
DEPORTING AND DETAINING THESE CITIZENS OF JAPANESE EXTRACTION.  BUT A
JUDICIAL CONSTRUCTION OF THE DUE PROCESS CLAUSE THAT WILL SUSTAIN THIS
ORDER IS A FAR MORE SUBTLE BLOW TO LIBERTY THAN THE PROMULGATION OF THE
ORDER ITSELF.  A MILITARY ORDER, HOWEVER UNCONSTITUTIONAL, IS NOT APT
TO LAST LONGER THAN THE MILITARY EMERGENCY.  EVEN DURING THAT PERIOD A
SUCCEEDING COMMANDER MAY REVOKE IT ALL.  BUT ONCE A JUDICIAL OPINION
RATIONALIZES SUCH AN ORDER TO SHOW THAT IT CONFORMS TO THE
CONSTITUTION, OR RATHER RATIONALIZES THE CONSTITUTION TO SHOW THAT THE
CONSTITUTION SANCTIONS SUCH AN ORDER, THE COURT FOR ALL TIME HAS
VALIDATED THE PRINCIPLE OF RACIAL DISCRIMINATION IN CRIMINAL PROCEDURE
AND OF TRANSPLANTING AMERICAN CITIZENS.  THE PRINCIPLE THEN LIES ABOUT
LIKE A LOADED WEAPON READY FOR THE HAND OF ANY AUTHORITY THAT CAN BRING
FORWARD A PLAUSIBLE CLAIM OF AN URGENT NEED.  EVERY REPETITION IMBEDS
THAT PRINCIPLE MORE DEEPLY IN OUR LAW AND THINKING AND EXPANDS IT TO
NEW PURPOSES.  ALL WHO OBSERVE THE WORK OF COURTS ARE FAMILIAR WITH
WHAT JUDGE CARDOZO DESCRIBED AS "THE TENDENCY OF A PRINCIPLE TO EXPAND
ITSELF TO THE LIMIT OF ITS LOGIC."  FN1  A MILITARY COMMANDER MAY
OVERSTEP THE BOUNDS OF CONSTITUTIONALITY, AND IT IS AN INCIDENT.  BUT
IF WE REVIEW AND APPROVE, THAT PASSING INCIDENT BECOMES THE DOCTRINE OF
THE CONSTITUTION.  THERE IT HAS A GENERATIVE POWER OF ITS OWN, AND ALL
THAT IT CREATES WILL BE IN ITS OWN IMAGE.  NOTHING BETTER ILLUSTRATES
THIS DANGER THAN DOES THE COURT'S OPINION IN THIS CASE. 

IT ARGUES THAT WE ARE BOUND TO UPHOLD THE CONVICTION OF KOREMATSU
BECAUSE WE UPHELD ONE IN HIRABAYASHI V. UNITED STATES, 320 U.S. 81,
WHEN WE SUSTAINED THESE ORDERS IN SO FAR AS THEY APPLIED A CURFEW
REQUIREMENT TO A CITIZEN OF JAPANESE ANCESTRY.  I THINK WE SHOULD LEARN
SOMETHING FROM THAT EXPERIENCE. 

IN THAT CASE WE WERE URGED TO CONSIDER ONLY THE CURFEW FEATURE, THAT
BEING ALL THAT TECHNICALLY WAS INVOLVED, BECAUSE IT WAS THE ONLY COUNT
NECESSARY TO SUSTAIN HIRABAYASHI'S CONVICTION AND SENTENCE.  WE
YIELDED, AND THE CHIEF JUSTICE GUARDED THE OPINION AS CAREFULLY AS
LANGUAGE WILL DO.  HE SAID:  "OUR INVESTIGATION HERE DOES NOT GO BEYOND
THE INQUIRY WHETHER, IN THE LIGHT OF ALL THE RELEVANT CIRCUMSTANCES
PRECEDING AND ATTENDING THEIR PROMULGATION, THE CHALLENGED ORDERS AND
STATUTE AFFORDED A REASONABLE BASIS FOR THE ACTION TAKEN IN IMPOSING
THE CURFEW."  320 U.S. AT 101.  "WE DECIDE ONLY THE ISSUE AS WE HAVE
DEFINED IT - WE DECIDE ONLY THAT THE CURFEW ORDER AS APPLIED, AND AT
THE TIME IT WAS APPLIED, WAS WITHIN THE BOUNDARIES OF THE WAR POWER." 
320 U.S. AT 102.  AND AGAIN:  "IT IS UNNECESSARY TO CONSIDER WHETHER OR
TO WHAT EXTENT SUCH FINDINGS WOULD SUPPORT ORDERS DIFFERING FROM THE
CURFEW ORDER."  320 U.S. AT 105.  HOWEVER, IN SPITE OF OUR LIMITING
WORDS WE DID VALIDATE A DISCRIMINATION ON THE BASIS OF ANCESTRY FOR
MILD AND TEMPORARY DEPRIVATION OF LIBERTY.  NOW THE PRINCIPLE OF RACIAL
DISCRIMINATION IS PUSHED FROM SUPPORT OF MILD MEASURES TO VERY HARSH
ONES, AND FROM TEMPORARY DEPRIVATIONS TO INDETERMINATE ONES.  AND THE
PRECEDENT WHICH IT IS SAID REQUIRES US TO DO SO IS HIRABAYASHI.  THE
COURT IS NOW SAYING THAT IN HIRABAYASHI WE DID DECIDE THE VERY THINGS
WE THERE SAID WE WERE NOT DECIDING.  BECAUSE WE SAID THAT THESE
CITIZENS COULD BE MADE TO STAY IN THEIR HOMES DURING THE HOURS OF DARK,
IT IS SAID WE MUST REQUIRE THEM TO LEAVE HOME ENTIRELY; AND IF THAT, WE
ARE TOLD THEY MAY ALSO BE TAKEN INTO CUSTODY FOR DEPORTATION; AND IF
THAT, IT IS ARGUED THEY MAY ALSO BE HELD FOR SOME UNDETERMINED TIME IN
DETENTION CAMPS.  HOW FAR THE PRINCIPLE OF THIS CASE WOULD BE EXTENDED
BEFORE PLAUSIBLE REASONS WOULD PLAY OUT, I DO NOT KNOW. 

I SHOULD HOLD THAT A CIVIL COURT CANNOT BE MADE TO ENFORCE AN ORDER
WHICH VIOLATES CONSTITUTIONAL LIMITATIONS EVEN IF IT IS A REASONABLE
EXERCISE OF MILITARY AUTHORITY.  THE COURTS CAN EXERCISE ONLY THE
JUDICIAL POWER, CAN APPLY ONLY LAW, AND MUST ABIDE BY THE CONSTITUTION,
OR THEY CEASE TO BE CIVIL COURTS AND BECOME INSTRUMENTS OF MILITARY
POLICY. 

OF COURSE THE EXISTENCE OF A MILITARY POWER RESTING ON FORCE, SO
VAGRANT, SO CENTRALIZED, SO NECESSARILY HEEDLESS OF THE INDIVIDUAL, IS
AN INHERENT THREAT TO LIBERTY.  BUT I WOULD NOT LEAD PEOPLE TO RELY ON
THIS COURT FOR A REVIEW THAT SEEMS TO ME WHOLLY DELUSIVE.  THE MILITARY
REASONABLENESS OF THESE ORDERS CAN ONLY BE DETERMINED BY MILITARY
SUPERIORS.  IF THE PEOPLE EVER LET COMMAND OF THE WAR POWER FALL INTO
IRRESPONSIBLE AND UNSCRUPULOUS HANDS, THE COURTS WIELD NO POWER EQUAL
TO ITS RESTRAINT.  THE CHIEF RESTRAINT UPON THOSE WHO COMMAND THE
PHYSICAL FORCES OF THE COUNTRY, IN THE FUTURE AS IN THE PAST, MUST BE
THEIR RESPONSIBILITY TO THE POLITICAL JUDGMENTS OF THEIR CONTEMPORARIES
AND TO THE MORAL JUDGMENTS OF HISTORY. 

MY DUTIES AS A JUSTICE AS I SEE THEM DO NOT REQUIRE ME TO MAKE A
MILITARY JUDGMENT AS TO WHETHER GENERAL DEWITT'S EVACUATION AND
DETENTION PROGRAM WAS A REASONABLE MILITARY NECESSITY.  I DO NOT
SUGGEST THAT THE COURTS SHOULD HAVE ATTEMPTED TO INTERFERE WITH THE
ARMY IN CARRYING OUT ITS TASK.  BUT I DO NOT THINK THEY MAY BE ASKED TO
EXECUTE A MILITARY EXPEDIENT THAT HAS NO PLACE IN LAW UNDER THE
CONSTITUTION.  I WOULD REVERSE THE JUDGMENT AND DISCHARGE THE
PRISONER. 

FN1  NATURE OF THE JUDICIAL PROCESS, P. 51. 
..END :










WALLACE CORPORATION V. LABOR BOARD, 323 U.S. 248 


ARGUED NOVEMBER 15, 16, 1944.  - DECIDED DECEMBER 18, 1944 - 141 F.2D
87, AFFIRMED. 


1.  THE FINDINGS OF THE NATIONAL LABOR RELATIONS BOARD IN AN UNFAIR
LABOR PRACTICE PROCEEDING THAT LABOR ORGANIZATION "A", WHICH THE BOARD
HAD PREVIOUSLY CERTIFIED AS COLLECTIVE BARGAINING REPRESENTATIVE, HAD
BEEN SET UP, MAINTAINED AND USED BY THE EMPLOYER TO FRUSTRATE THE
THREATENED UNIONIZATION OF ITS PLANT BY LABOR ORGANIZATION "B", AND
THAT THE CLOSED-SHOP CONTRACT BETWEEN A AND THE EMPLOYER HAD BEEN
ENTERED INTO BY THE EMPLOYER WITH KNOWLEDGE THAT A INTENDED TO USE THE
CONTRACT AS A MEANS OF BRINGING ABOUT THE DISCHARGE OF EMPLOYEES WHO
WERE MEMBERS OF B BY DENYING THEM MEMBERSHIP IN A, WERE SUPPORTED BY
THE EVIDENCE AND SUPPORTED THE BOARD'S ORDER REQUIRING THE EMPLOYER TO
DISESTABLISH A, TO CEASE AND DESIST FROM GIVING EFFECT TO THE CLOSED
SHOP CONTRACT, AND TO REINSTATE WITH BACK PAY EMPLOYEES FOUND TO HAVE
BEEN DISCHARGED BECAUSE OF THEIR AFFILIATION WITH B, AND BECAUSE OF
THEIR FAILURE TO BELONG TO A, AS REQUIRED BY THE CLOSED-SHOP CONTRACT. 
P. 251. 

2.  HAVING FOUND THAT THERE WAS A SUBSEQUENT UNFAIR LABOR PRACTICE,
THE BOARD WAS JUSTIFIED IN CONSIDERING EVIDENCE AS TO THE EMPLOYER'S
CONDUCT BOTH BEFORE AND AFTER THE SETTLEMENT AGREEMENT AND
CERTIFICATION.  P. 255. 

3.  ALTHOUGH THE PROVISO OF SEC. 8(3) OF THE NATIONAL LABOR RELATIONS
ACT PERMITS CLOSED-SHOP AGREEMENTS, IT WAS NEVERTHELESS AN UNFAIR LABOR
PRACTICE FOR THE EMPLOYER TO EXECUTE A CLOSED-SHOP AGREEMENT WITH
KNOWLEDGE THAT A INTENDED TO DENY MEMBERSHIP TO B EMPLOYEES BECAUSE OF
THEIR FORMER AFFILIATION WITH B. P. 255. 

4.  A LABOR ORGANIZATION WHICH HAS BEEN SELECTED AS BARGAINING
REPRESENTATIVE UNDER THE NATIONAL LABOR RELATIONS ACT BECOMES THE AGENT
OF ALL THE EMPLOYEES, CHARGED WITH THE RESPONSIBILITY OF REPRESENTING
THEIR INTERESTS FAIRLY AND IMPARTIALLY.  P. 255. 

5.  THE EMPLOYER WAS NOT COMPELLED BY LAW TO ENTER INTO A CONTRACT
UNDER WHICH IT KNEW THAT DISCRIMINATORY DISCHARGES WOULD OCCUR; AND THE
RECORD DISCLOSES THAT THERE WAS MORE WHICH THE EMPLOYER COULD AND
SHOULD HAVE DONE TO PREVENT THE DISCRIMINATORY DISCHARGES EVEN AFTER
THE CONTRACT WAS EXECUTED.  P. 256. 

WALLACE CORPORATION V. NATIONAL LABOR RELATIONS BOARD. 

NO. 66.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT* . 

*TOGETHER WITH NO. 67, RICHWOOD CLOTHESPIN & DISH WORKERS' UNION V.
NATIONAL LABOR RELATIONS BOARD, ALSO ON CERTIORARI TO THE CIRCUIT COURT
OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 322 U.S. 721, TO REVIEW A DECREE GRANTING ENFORCEMENT OF
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 50 N.L.R.B. 138. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN AN ATTEMPT TO SETTLE A LABOR DISPUTE AT THE PLANT OF PETITIONER
COMPANY, AN AGREEMENT APPROVED BY THE BOARD WAS SIGNED BY A C.I.O.
UNION, AN INDEPENDENT UNION, AND THE COMPANY.  AT A CONSENT ELECTION
HELD PURSUANT TO THIS AGREEMENT, INDEPENDENT WON A MAJORITY OF THE
VOTES CAST, FN1  AND WAS CERTIFIED BY THE BOARD AS BARGAINING
REPRESENTATIVE.  THE COMPANY THEN SIGNED A UNION SHOP CONTRACT WITH
INDEPENDENT, WITH KNOWLEDGE - SO THE BOARD HAS FOUND - THAT INDEPENDENT
INTENDED, BY REFUSING MEMBERSHIP TO C.I.O. EMPLOYEES, TO OUST THEM FROM
THEIR JOBS.  INDEPENDENT REFUSED TO ADMIT C.I.O. MEN TO MEMBERSHIP AND
THE COMPANY DISCHARGED THEM. 

IN A SUBSEQUENT UNFAIR LABOR PRACTICE PROCEEDING THE BOARD FOUND THAT
(1) INDEPENDENT HAD BEEN SET UP, MAINTAINED, AND USED BY THE PETITIONER
TO FRUSTRATE THE THREATENED UNIONIZATION OF ITS PLANT BY THE C.I.O.,
AND (2) THE UNION SHOP CONTRACT WAS MADE BY THE COMPANY WITH KNOWLEDGE
THAT INDEPENDENT INTENDED TO USE THE CONTRACT AS A MEANS OF BRINGING
ABOUT THE DISCHARGE OF FORMER C.I.O. EMPLOYEES BY DENYING THEM
MEMBERSHIP IN INDEPENDENT.  THE BOARD HELD THAT THE CONDUCT OF THE
COMPANY IN BOTH THESE INSTANCES CONSTITUTED UNFAIR LABOR PRACTICES.  IT
ENTERED AN ORDER REQUIRING PETITIONER TO DISESTABLISH INDEPENDENT,
DENOMINATED BY IT A "COMPANY UNION"; TO CEASE AND DESIST FROM GIVING
EFFECT TO THE UNION SHOP CONTRACT BETWEEN IT AND INDEPENDENT; AND TO
REINSTATE WITH BACK PAY FORTY-THREE EMPLOYEES, FOUND TO HAVE BEEN
DISCHARGED BECAUSE OF THEIR AFFILIATION WITH THE C.I.O., AND BECAUSE OF
THEIR FAILURE TO BELONG TO INDEPENDENT, AS REQUIRED BY THE UNION SHOP
CONTRACT.  FN2  THE CIRCUIT COURT OF APPEALS ORDERED ENFORCEMENT OF THE
ORDER.  FN3 WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE TO THE
ADMINISTRATION OF THE ACT OF THE QUESTIONS INVOLVED.  322 U.S. 721. 

THE BOARD'S FINDINGS IF VALID SUPPORT THE ENTIRE ORDER.  THIS IS SO
BECAUSE SEC. 8(3) OF THE ACT FN4  DOES NOT PERMIT SUCH A CONTRACT TO BE
MADE BETWEEN A COMPANY AND A LABOR ORGANIZATION WHICH IT HAS
"ESTABLISHED, MAINTAINED, OR ASSISTED."  N5  THE BOARD THEREFORE IS
AUTHORIZED BY THE ACT TO ORDER DISESTABLISHMENT OF SUCH UNIONS AND TO
ORDER AN EMPLOYER TO RENOUNCE SUCH CONTRACTS.  FN6 NOR CAN THE COMPANY,
IF THE BOARD'S FINDINGS ARE WELL-GROUNDED, DEFEND ITS DISCHARGE OF THE
C.I.O. EMPLOYEES ON THE GROUND THAT THE CONTRACT WITH INDEPENDENT
REQUIRED IT TO DO SO.  IT IS CONTENDED THAT THE BOARD'S FINDINGS ARE
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.  AS SHOWN BY ITS ANALYSIS, THE
BOARD GAVE CAREFUL CONSIDERATION TO THE EVIDENCE BEFORE IT RELATING TO
THE UNFAIR LABOR PRACTICES WHICH OCCURRED BOTH BEFORE AND AFTER THE
SETTLEMENT AGREEMENT AND THE CERTIFICATION.  THE CIRCUIT COURT OF
APPEALS UNRESERVEDLY AFFIRMED THE BOARD'S FINDINGS, AND WE FIND AMPLE
SUBSTANTIATING EVIDENCE IN THE RECORD TO JUSTIFY THAT AFFIRMANCE.  WE
NEED THEREFORE BUT BRIEFLY REFER TO THE CIRCUMSTANCES LEADING TO THE
BOARD'S ORDER. 

THE FINDINGS OF THE BOARD ESTABLISH THE FACT OF AN ABIDING HOSTILITY
ON THE PART OF THE COMPANY TO ANY RECOGNITION OF A C.I.O. UNION.  THIS
HOSTILITY WE MUST TAKE IT EXTENDED TO ANY EMPLOYEE WHO DID OR WHO MIGHT
AFFILIATE HIMSELF WITH THE C.I.O. UNION.  THE COMPANY APPARENTLY
PREFERRED TO CLOSE DOWN THIS ONE OF ITS TWO PLANTS RATHER THAN TO
BARGAIN COLLECTIVELY WITH THE C.I.O.  IT PUBLICLY PROCLAIMED THROUGH
ONE OF ITS FOREMEN THAT "...  THE ONES THAT DID NOT SIGN UP WITH THE
C.I.O. DIDN'T HAVE ANYTHING TO WORRY ABOUT  ...  THE COMPANY WOULD SEE
THAT THEY WAS TAKEN CARE OF."  THE SETTLEMENT AGREEMENT PLAINLY IMPLIED
THAT THE OLD EMPLOYEES COULD RETAIN THEIR JOBS WITH THE COMPANY SIMPLY
BY BECOMING MEMBERS OF WHICHEVER UNION WOULD WIN THE ELECTION. 
NEVERTHELESS, THE COMPANY ENTERED INTO AN AGREEMENT WITH INDEPENDENT
WHICH INEVITABLY RESULTED IN BRINGING ABOUT THE DISCHARGE OF A LARGE
BLOC OF C.I.O. MEN AND THEIR PRESIDENT. 

THE CONTRACT WAS EXECUTED AFTER NOTICE TO THE COMPANY BY THE BUSINESS
MANAGER OF INDEPENDENT THAT INDEPENDENT MUST HAVE THE RIGHT TO REFUSE
MEMBERSHIP TO OLD C.I.O. EMPLOYEES WHO MIGHT JEOPARDIZE ITS MAJORITY. 
THIS BUSINESS MANAGER, WHO HAD HIMSELF ORIGINALLY BEEN RECOMMENDED TO
INDEPENDENT BY A COMPANY EMPLOYEE, WROTE THE COMPANY, PRIOR TO THE
MAKING OF THE CONTRACT, THAT INDEPENDENT INSISTED UPON A CLOSED-SHOP
AGREEMENT BECAUSE IT WANTED A "LEGAL MEANS OF DISPOSING OF ANY PRESENT
EMPLOYEES" WHO MIGHT AFFECT ITS MAJORITY, AND "WHO ARE UNFAVORABLE TO
OUR INTERESTS."  THE CONTRACT FURTHER SIGNIFICANTLY PROVIDED THAT THE
COMPANY WOULD BE RELEASED FROM THE CLAUSE REQUIRING IT TO RETAIN IN ITS
EMPLOY UNION MEN ONLY, IF INDEPENDENT SHOULD LOSE ITS MAJORITY AND THE
C.I.O. WIN IT.  FN7 

NEITHER THE BOARD NOR THE COURT BELOW FOUND THAT THE COMPANY ENGAGED
IN A CONSPIRACY TO BRING ABOUT THE DISCHARGE CHARGE OF FORMER C.I.O.
MEMBERS.  BOTH OF THEM, HOWEVER, HAVE FOUND THAT THE CONTRACT WAS
SIGNED WITH KNOWLEDGE ON THE PART OF THE COMPANY THAT INDEPENDENT
PROPOSED TO REFUSE TO ADMIT THEM TO MEMBERSHIP AND THUS ACCOMPLISH THE
VERY SAME PURPOSE.  BY THE PLAN CARRIED OUT THE COMPANY HAS BEEN ABLE
TO ACHIEVE THAT WHICH THE BOARD FOUND WAS ITS OBJECT FROM THE
BEGINNING, NAMELY, TO RID ITSELF OF C.I.O. MEMBERS, CATEGORIZED BY ITS
FOREMAN AS "AGITATORS." 

IT IS CONTENDED THAT THE BOARD'S FINDING AS TO COMPANY DOMINATION HAS
NO SUPPORT IN THE EVIDENCE BECAUSE THE EVIDENCE AS TO COMPANY
DOMINATION ANTEDATED THE SETTLEMENT AND CERTIFICATION, AND HENCE WAS
IMPROPERLY ADMITTED.  THE ARGUMENT IS THAT THE BOARD CANNOT GO BEHIND
THE SETTLEMENT AND CERTIFICATION.  THE PETITIONER DOES NOT ARGUE THAT
ANY LANGUAGE APPEARING IN THE LABOR RELATIONS ACT DENIES THIS POWER TO
THE BOARD, BUT RELIES UPON GENERAL PRINCIPLES ON WHICH THE JUDICIAL
RULE GOVERNING ESTOPPEL IS BASED.  ONLY RECENTLY WE HAD OCCASION TO
NOTE THAT THE DIFFERENCES IN ORIGIN AND FUNCTION BETWEEN ADMINISTRATIVE
BODIES AND COURTS "PRECLUDE WHOLESALE TRANSPLANTATION OF THE RULES OF
PROCEDURE, TRIAL, AND REVIEW WHICH HAVE EVOLVED FROM THE HISTORY AND
EXPERIENCE OF COURTS."  FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE
BROADCASTING CO., 309 U.S. 134, 143.  WITH REFERENCE TO THE ATTEMPTED
SETTLEMENT OF DISPUTES, AS IN THE PERFORMANCE OF OTHER DUTIES IMPOSED
UPON IT BY THE ACT, THE BOARD HAS POWER TO FASHION ITS PROCEDURE TO
ACHIEVE THE ACT'S PURPOSE TO PROTECT EMPLOYEES FROM UNFAIR LABOR
PRACTICES.  WE CANNOT, BY INCORPORATING THE JUDICIAL CONCEPT OF
ESTOPPEL INTO ITS PROCEDURE, RENDER THE BOARD POWERLESS TO PREVENT AN
OBVIOUS FRUSTRATION OF THE ACT'S PURPOSES. 

TO PREVENT DISPUTES LIKE THE ONE HERE INVOLVED, THE BOARD HAS FROM THE
VERY BEGINNING ENCOURAGED COMPROMISES AND SETTLEMENTS.  FN8  THE
PURPOSE OF SUCH ATTEMPTED SETTLEMENTS HAS BEEN TO END LABOR DISPUTES,
AND SO FAR AS POSSIBLE TO EXTINGUISH ALL THE ELEMENTS GIVING RISE TO
THEM.  THE ATTEMPTED SETTLEMENT HERE WHOLLY FAILED TO PREVENT THE
WHOLESALE DISCARD OF EMPLOYEES AS A RESULT OF THEIR UNION
AFFILIATIONS.  THE PURPOSE OF THE SETTLEMENT WAS THEREBY DEFEATED. 
UPON THIS FAILURE, WHEN THE BOARD'S FURTHER ACTION WAS PROPERLY
INVOKED, IT BECAME ITS DUTY TO TAKE FRESH STEPS TO PREVENT FRUSTRATION
OF THE ACT.  TO MEET SUCH SITUATIONS THE BOARD HAS ESTABLISHED AS A
WORKING RULE THE PRINCIPLE THAT IT ORDINARILY WILL RESPECT THE TERMS OF
A SETTLEMENT AGREEMENT APPROVED BY IT.  FN9  IT HAS CONSISTENTLY GONE
BEHIND SUCH AGREEMENTS, HOWEVER, WHERE SUBSEQUENT EVENTS HAVE
DEMONSTRATED THAT EFFORTS AT ADJUSTMENT HAVE FAILED TO ACCOMPLISH THEIR
PURPOSE, OR WHERE THERE HAS BEEN A SUBSEQUENT UNFAIR LABOR PRACTICE. 
FN10  WE THINK THIS RULE ADOPTED BY THE BOARD IS APPROPRIATE TO
ACCOMPLISH THE ACT'S PURPOSE WITH FAIRNESS TO ALL CONCERNED. 
CONSEQUENTLY, SINCE THE BOARD CORRECTLY FOUND THAT THERE WAS A
SUBSEQUENT UNFAIR LABOR PRACTICE, IT WAS JUSTIFIED IN CONSIDERING
EVIDENCE AS TO PETITIONER'S CONDUCT, BOTH BEFORE AND AFTER THE
SETTLEMENT AND CERTIFICATION. 

THE COMPANY DENIES THE EXISTENCE OF A SUBSEQUENT UNFAIR LABOR
PRACTICE.  IT ATTACKS THE BOARD'S CONCLUSION THAT IT WAS AN UNFAIR
LABOR PRACTICE TO EXECUTE THE UNION SHOP CONTRACT WITH KNOWLEDGE THAT
INDEPENDENT AT THAT TIME INTENDED TO DENY MEMBERSHIP TO C.I.O.
EMPLOYEES BECAUSE OF THEIR FORMER AFFILIATIONS WITH THE C.I.O.  IT
ADMITS THAT HAD THERE BEEN NO UNION SHOP AGREEMENT, DISCHARGE OF
EMPLOYEES ON ACCOUNT OF THEIR MEMBERSHIP IN THE C.I.O. WOULD HAVE BEEN
AN UNLAWFUL DISCRIMINATION CONTRARY TO SEC. 8(3) OF THE ACT.  BUT THE
PROVISO IN SEC. 8(3) PERMITS UNION SHOP AGREEMENTS.  IT FOLLOWS
THEREFORE, THE COMPANY ARGUES, THAT, INASMUCH AS SUCH AGREEMENTS
CONTEMPLATE DISCHARGE OF THOSE WHO ARE NOT MEMBERS OF THE CONTRACTING
UNION, AND INASMUCH AS THE COMPANY HAS NO CONTROL OVER ADMISSION TO
UNION MEMBERSHIP, THE CONTRACT IS VALID AND THE COMPANY MUST DISCHARGE
NON-UNION MEMBERS, REGARDLESS OF THE UNION'S DISCRIMINATORY PURPOSE,
AND THE COMPANY'S KNOWLEDGE OF SUCH PURPOSE.  THIS ARGUMENT WE CANNOT
ACCEPT. 

THE DUTIES OF A BARGAINING AGENT SELECTED UNDER THE TERMS OF THE ACT
EXTEND BEYOND THE MERE REPRESENTATION OF THE INTERESTS OF ITS OWN GROUP
MEMBERS.  BY ITS SELECTION AS BARGAINING REPRESENTATIVE, IT HAS BECOME
THE AGENT OF ALL THE EMPLOYEES, CHARGED WITH THE RESPONSIBILITY OF
REPRESENTING THEIR INTERESTS FAIRLY AND IMPARTIALLY.  OTHERWISE,
EMPLOYEES WHO ARE NOT MEMBERS OF A SELECTED UNION AT THE TIME IT IS
CHOSEN BY THE MAJORITY WOULD BE LEFT WITHOUT ADEQUATE REPRESENTATION. 
NO EMPLOYEE CAN BE DEPRIVED OF HIS EMPLOYMENT BECAUSE OF HIS PRIOR
AFFILIATION WITH ANY PARTICULAR UNION.  THE LABOR RELATIONS ACT WAS
DESIGNED TO WIPE OUT SUCH DISCRIMINATION IN INDUSTRIAL RELATIONS. 
NUMEROUS DECISIONS OF THIS COURT DEALING WITH THE ACT HAVE ESTABLISHED
BEYOND DOUBT THAT WORKERS SHALL NOT BE DISCRIMINATORILY DISCHARGED
BECAUSE OF THEIR AFFILIATION WITH A UNION.  WE DO NOT CONSTRUE THE
PROVISION AUTHORIZING A CLOSED SHOP CONTRACT AS INDICATING AN INTENTION
ON THE PART OF CONGRESS TO AUTHORIZE A MAJORITY OF WORKERS AND A
COMPANY, AS IN THE INSTANT CASE, TO PENALIZE MINORITY GROUPS OF WORKERS
BY DEPRIVING THEM OF THAT FULL FREEDOM OF ASSOCIATION AND SELF
ORGANIZATION WHICH IT WAS THE PRIME PURPOSE OF THE ACT TO PROTECT FOR
ALL WORKERS.  IT WAS AS MUCH A DEPRIVATION OF THE RIGHTS OF THESE
MINORITY EMPLOYEES FOR THE COMPANY DISCRIMINATORILY TO DISCHARGE THEM
IN COLLABORATION WITH INDEPENDENT AS IT WOULD HAVE BEEN HAD THE COMPANY
DONE IT ALONE.  TO PERMIT IT TO DO SO BY INDIRECTION, THROUGH THE
MEDIUM OF A "UNION" OF ITS OWN CREATION, WOULD BE TO SANCTION A READILY
CONTRIVED MECHANISM FOR EVASION OF THE ACT. 

ONE FINAL ARGUMENT REMAINS.  THE COMPANY, IT IS SAID, BARGAINED WITH
INDEPENDENT BECAUSE IT WAS COMPELLED TO DO SO BY LAW.  THE UNION SHOP
CONTRACT TO WHICH THE COMPANY AT FIRST OBJECTED, BUT INTO WHICH IT
ENTERED AGAINST THE ADVICE OF COUNSEL, WAS THE RESULT OF THAT
BARGAINING.  THE COMPANY, IT IS POINTED OUT, PERSISTENTLY THOUGH
UNSUCCESSFULLY SOUGHT TO PERSUADE INDEPENDENT TO ADMIT C.I.O. WORKERS
AS MEMBERS OF INDEPENDENT.  HENCE, WE ARE TOLD, THE COMPANY DID ALL IN
ITS POWER TO PREVENT THE DISCHARGES AND SHOULD NOT BE HELD RESPONSIBLE
FOR THEM.  TWO ANSWERS SUGGEST THEMSELVES:  FIRST, THAT THE COMPANY WAS
NOT COMPELLED BY LAW TO ENTER INTO A CONTRACT UNDER WHICH IT KNEW THAT
DISCRIMINATORY DISCHARGES OF ITS EMPLOYEES WERE BOUND TO OCCUR; SECOND,
THE RECORD DISCLOSES THAT THERE WAS MORE THE COMPANY COULD AND SHOULD
HAVE DONE TO PREVENT THESE DISCRIMINATORY DISCHARGES EVEN AFTER THE
CONTRACT WAS EXECUTED.  IMMEDIATELY AFTER THE DISCHARGE OF THIS LARGE
GROUP OF EMPLOYEES, THE LABOR BOARD COMPLAINED TO THE COMPANY.  THE
COMPANY APPEALED IN WRITING TO INDEPENDENT'S BUSINESS MANAGER TO ADMIT
THE MEN TO MEMBERSHIP, AND THUS MAKE POSSIBLE THEIR REINSTATEMENT. 
THIS APPEAL WAS REJECTED.  THE BOARD THEN CALLED TO THE COMPANY'S
ATTENTION OUR DECISION IN LABOR BOARD V. ELECTRIC VACUUM CLEANER CO.,
315 U.S. 685, ASSERTING THAT UNDER ITS AUTHORITY THE MEN HAD BEEN
ILLEGALLY DISCHARGED AND SHOULD BE REINSTATED.  IN SUBSEQUENT
CORRESPONDENCE, THE BOARD SUGGESTED TO THE COMPANY THAT IF IT SHOULD
LATER BE REQUIRED TO REINSTATE THE DISCHARGED EMPLOYEES, IT WOULD HAVE
ONLY ITSELF TO BLAME, SINCE IT HAD VOLUNTARILY DISPENSED WITH THEIR
SERVICES.  IT INSISTED THAT THE COMPANY WAS TAKING A NEEDLESS RISK OF
LIABILITY BECAUSE IF THE BOARD SHOULD HEAR CHARGES AND DISMISS THEM,
THE MEN COULD THEN BE DISCHARGED, BUT IF ON THE OTHER HAND, THE BOARD
SHOULD SUSTAIN THE COMPLAINT, THE DISCHARGED EMPLOYEES "WOULD HAVE
RETAINED THEIR POSITIONS AND YOUR CLIENT WOULD HAVE NO FURTHER
LIABILITY BECAUSE OF THEIR WRONGFUL DISCHARGE."  THE BOARD'S
REPRESENTATIVE AT THAT TIME WROTE THE COMPANY, "I AGAIN BESEECH YOU TO
RETURN THEM TO WORK PENDING A DECISION BY THE NATIONAL LABOR RELATIONS
BOARD ON THIS QUESTION."    IT FOLLOWS FROM WHAT WE HAVE SAID THAT WE
AFFIRM THE JUDGMENT OF THE COURT BELOW APPROVING THE ORDER OF THE BOARD
IN ITS ENTIRETY.  AFFIRMED. 

FN1  OF 207 ELIGIBLE EMPLOYEES, 98 VOTED FOR INDEPENDENT, 83 FOR THE
C.I.O., AND 26 DID NOT VOTE. 

FN2  50 N.L.R.B. 138. 

FN3  141 F.2D 87.    FN4  SECTION 8(3) CONTAINS A PROVISO TO THE
EFFECT THAT NOTHING IN THE ACT "SHALL PRECLUDE AN EMPLOYER FROM MAKING
AN AGREEMENT WITH A LABOR ORGANIZATION (NOT ESTABLISHED, MAINTAINED, OR
ASSISTED BY ANY ACTION DEFINED IN THIS ACT AS AN UNFAIR LABOR PRACTICE)
TO REQUIRE AS A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN  ...." 

FN5  LABOR BOARD V. ELECTRIC VACUUM CLEANER CO., 315 U.S. 685, 694. 

FN6  I.A. OF M. V. LABOR BOARD, 311 U.S. 72, 81-2; LABOR BOARD V.
FALK CORP., 308 U.S. 453, 461. 

FN7  THE CONTRACT READS:  "IT IS MUTUALLY AGREED BY BOTH PARTIES
HERETO THAT SHOULD THE UNION AT ANY TIME BECOME AFFILIATED IN ANY WAY
WITH ANY LABOR ORGANIZATION OR FEDERATION HAVING MEMBERSHIP OR LOCAL
UNION AFFILIATIONS IN MORE THAN ONE TOWN OUTSIDE OF THE CITY OF
RICHWOOD, WEST VIRGINIA, THIS CLAUSE (E) OF ARTICLE I SHALL IMMEDIATELY
BECOME NULL AND VOID,  ..." 

FN8  APPARENTLY MORE THAN 50% OF ALL CASES BEFORE IT HAVE BEEN
ADJUSTED UNDER ITS SUPERVISION.  SEE FIRST ANNUAL REPORT OF THE
NATIONAL LABOR RELATIONS BOARD (1936), PP. 30-31; SECOND ANNUAL REPORT
(1937), PP. 15-17; THIRD ANNUAL REPORT (1938), PP. 20-22; FOURTH ANNUAL
REPORT (1939), PP. 19-22; FIFTH ANNUAL REPORT (1940), PP. 14, 16-18,
20, 26; SIXTH ANNUAL REPORT (1941), PP. 14-15, 25, 26, 27, 29; SEVENTH
ANNUAL REPORT (1942), PP. 22-25, 28-30, 80-86; EIGHTH ANNUAL REPORT
(1943), PP. 20-23, 91, 92. 

FN9  MATTER OF CORN PRODUCTS REFINING CO., 22 N.L.R.B. 824, 828-829;
MATTER OF WICKWIRE BROTHERS, 16 N.L.R.B. 316, 325-326; MATTER OF
GODCHAUX SUGARS, 12 N.L.R.B. 568, 576-579; MATTER OF SHENANDOAH-DIVES
MINING CO., 11 N.L.R.B. 885, 888; CF. MATTER OF LOCOMOTIVE FINISHED
MATERIAL CO., 52 N.L.R.B. 922, 927. 

FN10  MATTER OF LOCOMOTIVE FINISHED MATERIAL CO., SUPRA, 926-928;
MATTER OF CHICAGO CASKET CO., 21 N.L.R.B. 235, 252-256; MATTER OF HARRY
A. HALFF, 16 N.L.R.B. 667, 679-682; CF. MATTER OF WICKWIRE BROTHERS,
SUPRA.  THE COURTS HAVE APPROVED THE BOARD'S PRACTICE IN THIS RESPECT. 
LABOR BOARD V. PHILLIPS GAS & OIL CO., 141 F.2D 304, 305-6(C.C.A. 3);
LABOR BOARD V. HAWK & BUCK CO., 120 F.2D 903, 904-5(C.C.A. 5); LABOR
BOARD V. THOMPSON PRODUCTS, 130 F.2D 363, 366-67(C.C.A. 6); CANYON
CORP. V. LABOR BOARD, 128 F.2D 953, 955-956(C.C.A. 8); SPERRY GYROSCOPE
CO. V. LABOR BOARD, 129 F.2D 922, 931(C.C.A.2).  SEE WAREHOUSEMEN'S
UNION V. LABOR BOARD, 121 F.2D 84, 92-94(APP.  D.C.)  CERT. DEN.  314
U.S. 674. 

MR. JUSTICE JACKSON, DISSENTING. 

A MORE COMPLETE STATEMENT OF THE FACTS THAN IS FOUND IN THE COURT'S
OPINION IS NECESSARY TO DISCLOSE THE REASONS WHY THE CHIEF JUSTICE, MR.
JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER, AND I DISSENT. 

THE WALLACE MANUFACTURING COMPANY EMPLOYS ABOUT 200 EMPLOYEES AND
MAKES CLOTHESPINS AND SIMILAR WOOD PRODUCTS AT RICHWOOD, A SMALL
COMMUNITY IN WEST VIRGINIA.  IN JULY 1941 A UNION AFFILIATED WITH THE
C.I.O., WHICH AFTER THE PRACTICE OF THE COURT'S OPINION WE WILL CALL
THE C.I.O., BEGAN TO ORGANIZE THESE EMPLOYEES, AND THE COMPANY ENGAGED
IN COUNTER MEASURES.  WITHOUT DETAILING THE EVIDENCE OR CONSIDERING THE
MERITS OF THE COMPANY'S OBJECTIONS WE WILL ASSUME THAT THE COMPANY
DURING THIS PERIOD WAS GUILTY OF UNFAIR LABOR PRACTICES. 

ON SEPTEMBER 25, THE C.I.O. CALLED A STRIKE.  ABOUT OCTOBER 2, THE
INDEPENDENT UNION, ONE OF THE PETITIONERS HERE, CAME INTO BEING.  ON
OCTOBER 10, 1941, THE C.I.O. FILED CHARGES WITH THE LABOR BOARD,
ALLEGING AMONG OTHER THINGS THAT THE COMPANY HAD VIOLATED THE ACT BY
SPONSORING THE FORMATION OF THE INDEPENDENT.  AGAIN, WITHOUT WEIGHING
THE EVIDENCE OR THE OBJECTIONS OF THE COMPANY OR OF THE INDEPENDENT, WE
WILL ASSUME THAT THE COMPANY WAS GUILTY. 

ON OCTOBER 14, THE INDEPENDENT DEMANDED RECOGNITION AS BARGAINING
REPRESENTATIVE OF THE EMPLOYEES, AND ON OCTOBER 31, IT FILED WITH THE
LABOR BOARD A PETITION FOR INVESTIGATION AND CERTIFICATION OF IT AS THE
REPRESENTATIVE OF THE COMPANY'S EMPLOYEES. 

THE BOARD, HOWEVER, DID NOT PROCEED ON EITHER THE COMPLAINT OR THE
REQUEST FOR CERTIFICATION.  INSTEAD, AS THE GOVERNMENT STATES, "DURING
THE ENSUING TWO AND ONE-HALF MONTHS, REPRESENTATIVES OF PETITIONER (THE
COMPANY), THE BOARD, AND THE TWO UNIONS ENGAGED IN NEGOTIATIONS LOOKING
TOWARD SETTLEMENT OF THE ENTIRE CONTROVERSY, INCLUDING DISPOSITION OF
THE UNION'S CHARGE AND THE INDEPENDENT'S PETITION."  AGAIN, WITHOUT
CONSIDERING THE COMPANY'S OR THE INDEPENDENT'S OBJECTION OR EVIDENCE,
WE WILL ASSUME THAT DURING THIS TWO AND A HALF MONTHS THE COMPANY
ENGAGED IN UNFAIR LABOR PRACTICES.  THE STRIKE WAS PROCEEDING, HOWEVER,
WITH MUCH BITTERNESS AND SOME VIOLENCE.  ON DECEMBER 30, THE STRIKE
THEN BEING IN ITS FOURTH MONTH, THE C.I.O. BY TELEGRAM OFFERED, WITH
THE APPROVAL OF THE LABOR BOARD, TO ENTER INTO A CONSENT ELECTION "WITH
YOU AND YOUR COMPANY UNION, ON THE CONDITION THAT WHEN WE PROVE A
MAJORITY AND BECOME THE EXCLUSIVE BARGAINING AGENCY FOR ALL YOUR
EMPLOYEES, THAT AS A CONDITION OF EMPLOYMENT ALL ELIGIBLE EMPLOYEES
MUST BECOME MEMBERS OF LOCAL UNION 129, U.C.W.O.C."  THE CLOSED-SHOP
PROPOSAL WAS THUS FIRST BROUGHT FORWARD BY THE C.I.O.  ON JANUARY 13,
THE C.I.O. AND THE INDEPENDENT AND THE COMPANY SIGNED AN AGREEMENT THAT
THE PLANT SHOULD BE OPENED, THAT EVERYONE SHOULD RETURN TO WORK, THAT
THE COMPANY WOULD NOT IN ANY WAY INFLUENCE ITS EMPLOYEES FOR OR AGAINST
EITHER UNION, AND THAT THE UNIONS WOULD NOT EXERCISE ANY COERCION.  THE
COMPANY AGREED TO RECOGNIZE AS EXCLUSIVE BARGAINING AGENT WHICHEVER
UNION WAS PROVED BY A VOTE CONDUCTED BY THE BOARD TO REPRESENT A
MAJORITY OF ITS EMPLOYEES AND TO START NEGOTIATIONS IMMEDIATELY AFTER
THE RESULT OF THE ELECTION WAS DETERMINED AND TO GRANT A UNION SHOP. 
ALL PARTIES ARE AGREED THAT THEY EMPLOYED "UNION SHOP" AS THE
EQUIVALENT OF "CLOSED SHOP."  THERE IS NO FINDING AND NO EVIDENCE THAT
AT THE TIME THE COMPANY ENTERED INTO THIS OBLIGATION IT HAD ANY
FOREKNOWLEDGE AS TO WHICH UNION WOULD WIN OR WHAT THE PRACTICE OF
EITHER AS TO ADMISSION OF MEMBERS WOULD BE, NOR IS THERE ANY EVIDENCE
THAT EITHER UNION HAD DECIDED UPON ANY POLICY IN ANTICIPATION OF
VICTORY.  THERE IS NO CHARGE, NO FINDING, AND NO EVIDENCE THAT THE
COMPANY HAS NOT PERFORMED ITS PART OF THIS AGREEMENT SCRUPULOUSLY. 

THE PARTIES TOOK THIS AGREEMENT TO THE OFFICE OF THE BOARD'S REGIONAL
MANAGER AND ON JANUARY 19 TWO AGREEMENTS WERE DRAWN:  ONE BY WHICH THE
C.I.O. WITHDREW THE CHARGES OF DOMINATION AND OTHER CHARGES; AND THE
OTHER FOR A CONSENT ELECTION TO DETERMINE THE EMPLOYEES' CHOICE OF
REPRESENTATIVE.  BOTH OF THESE AGREEMENTS, AFTER SIGNATURE BY ALL THE
PARTIES, WERE APPROVED IN WRITING BY THE REGIONAL DIRECTOR, ACTING ON
BEHALF OF THE NATIONAL LABOR RELATIONS BOARD AND WITH FULL KNOWLEDGE OF
THE AGREEMENT THAT THE COMPANY WOULD GIVE TO THE WINNER A CLOSED SHOP. 
FN1 

THE EMPLOYEES, WITHOUT DISTINCTION AS TO UNION AFFILIATION, ALL
RETURNED TO WORK.  THE ELECTION WAS HELD JANUARY 30, UNDER THE AUSPICES
OF THE BOARD.  OF THE 186 VALID VOTES CAST, THE INDEPENDENT RECEIVED
98, THE C.I.O. 83, AND 5 VOTES WERE CAST FOR NEITHER.  THE C.I.O. FILED
NO OBJECTIONS, AND THE BOARD ON FEBRUARY 4 CERTIFIED THE INDEPENDENT AS
THE EXCLUSIVE BARGAINING AGENT FOR THE EMPLOYEES IN THE PLANT. 

THEREUPON THE COMPANY BARGAINED WITH THE CERTIFIED REPRESENTATIVE, AS
IT WAS REQUIRED BY LAW TO DO.  THE EVIDENCE IS UNCONTRADICTED THAT THE
COMPANY WAS RELUCTANT STILL TO ENTER INTO A CLOSED-SHOP AGREEMENT.  THE
INDEPENDENT, HOWEVER, INSISTED THAT THE COMPANY PERFORM THE CONTRACT BY
WHICH THE STRIKE HAD BEEN SETTLED.  IT STATED ITS POSITION IN A LETTER
IN WHICH IT SAID:  "THE 'CLOSED SHOP' WILL, THEREFORE, GIVE US SOME
CONTROL IN PREVENTING THE HIRING OF ADDITIONAL EMPLOYEES WHO ARE
UNFAVORABLE TO OUR INTERESTS AND WHO WOULD FURTHER JEOPARDIZE OUR
MAJORITY.  IT WOULD ALSO PROVIDE US WITH A LEGAL MEANS OF DISPOSING OF
ANY PRESENT EMPLOYEES, INCLUDING HARVEY DODRILL WHOM OUR MEMBERS HAVE
DECLARED BY UNANIMOUS BALLOT THAT THEY WILL NOT WORK WITH, WHOSE
PRESENCE IN THE PLANT IS UNFAVORABLE TO OUR INTERESTS BECAUSE THOSE WHO
ARE SO UNFAVORABLE WILL NOT BE PERMITTED TO BECOME MEMBERS OF OUR
ORGANIZATION AND WITHOUT SUCH MEMBERSHIP THEY WOULD NOT BE PERMITTED TO
WORK IN THE PLANT UNDER A CLOSED SHOP CONTRACT WHICH WE RESPECTFULLY
INSIST THAT WE MUST HAVE." 

THIS IS THE FIRST KNOWLEDGE IT IS CLAIMED THE COMPANY HAD OR SHOULD
HAVE HAD OF THE INDEPENDENT'S ADOPTION OF AN EXCLUSIONARY POLICY TOWARD
ITS RIVALS.  THE COMPANY YIELDED, CONSIDERING THE UNION'S MEMBERSHIP
POLICY AS SOMETHING IT COULD NOT INTERFERE WITH, AND THE CLOSED-SHOP
CONTRACT WAS SIGNED.  IT REQUIRED THAT ALL PRESENT AND FUTURE EMPLOYEES
SHOULD BECOME MEMBERS OF THE INDEPENDENT WITHIN TEN DAYS OF THE DATE OF
THE CONTRACT OR FROM THE DATE OF HIRING.  THE CONTRACT AND NOTICE OF
THE CLOSED-SHOP ARRANGEMENT WERE POSTED IN THE PLANT.  ON MARCH 18,
FORTY-THREE EMPLOYEES WERE DISMISSED, ON DEMAND OF THE INDEPENDENT, AS
NOT ELIGIBLE FOR EMPLOYMENT BECAUSE OF NON-MEMBERSHIP IN IT.  LATER IT
APPEARED THAT TWELVE SUCH DISMISSED EMPLOYEES NEVER MADE APPLICATION
FOR MEMBERSHIP IN THE INDEPENDENT, AND THIRTY-ONE MEMBERS WHO HAD
APPLIED FOR MEMBERSHIP HAD BEEN REJECTED BECAUSE WHEN THEIR
APPLICATIONS CAME BEFORE THE MEETING IN REGULAR COURSE THEY DID NOT
RECEIVE THE NUMBER OF BALLOTS NECESSARY UNDER ITS BY-LAWS TO ELECT TO
MEMBERSHIP.  WHETHER THE COMPANY KNEW THAT THEY HAD APPLIED FOR
MEMBERSHIP AND HAD BEEN REJECTED IS DISPUTED, BUT AGAIN WE RESOLVE THE
DOUBT AGAINST THE COMPANY AND ASSUME THAT THE SUPERINTENDENT KNEW THIS
FACT AT THE TIME OF DISCHARGE. 

THERE IS NO DISPUTE, HOWEVER, THAT WHEN MR. WALLACE, THE PRESIDENT OF
THE COMPANY, LEARNED OF THE DISCHARGE HE ATTEMPTED TO PERSUADE THE
INDEPENDENT TO ALLOW THESE EMPLOYEES TO BE REINSTATED.  ON MARCH 20,
1942, HE WROTE TO THE BUSINESS AGENT OF THE INDEPENDENT A LETTER.  THE
BOARD HAS NOT FOUND THAT IT WAS NOT WRITTEN IN GOOD FAITH.  TO THE
CONTRARY, COUNSEL FOR THE BOARD WITH COMMENDABLE CANDOR STATED THAT
THERE IS NO EVIDENCE AND THAT HE MADE NO CONTENTION THAT IT WAS OTHER
THAN A GOOD-FAITH STATEMENT OF THE COMPANY'S POSITION.  AMONG OTHER
THINGS IT SAYS, "WHEN OUR MR. CHRISTMAS TALKED TO YOU ON MARCH 9TH, YOU
WILL RECALL THAT HE APPEALED TO YOU TO SEE THAT THE CLOSED SHOP CLAUSE,
WHICH YOUR UNION INSISTED BE INCLUDED IN THE WORKING AGREEMENT, SHOULD
NOT BE USED IN ANY WAY TO UNFAIRLY PREVENT ANY PERSON FROM WORKING WHO
WANTED TO WORK.  WE REALIZE, OF COURSE, THAT THE CONTRACT DOES NOT GIVE
THE COMPANY THE RIGHT TO TELL THE UNION WHO TO ADMIT AS MEMBERS, AND
FOR THAT REASON MR. CHRISTMAS' TALK WITH YOU AND MINE OVER THE
TELEPHONE COULD ONLY BE DIRECTED TO THE SENSE OF FAIRNESS WHICH WE
BELIEVE EXISTS IN THE MINDS OF YOUR MEMBERS. 

"ENTIRELY ASIDE FROM THE FACT THAT HAVING TO LAY OFF THIS LARGE
NUMBER OF EXPERIENCED PEOPLE WILL BADLY CRIPPLE OUR PRODUCTION WHICH IS
URGENTLY NEEDED, WE FEEL THAT IT IS INDEED A SAD SITUATION WHERE,
ACCOUNT OF SOME INDIVIDUAL DIFFERENCES OF OPINION, PEOPLE WHO HAVE
PERHAPS BEEN FRIENDS AND NEIGHBORS FOR MANY YEARS CANNOT WORK
TOGETHER.  I WILL APPRECIATE YOUR ADVISING ME WHAT CAN BE DONE." 

THE REGIONAL DIRECTOR OF THE BOARD WAS NOTIFIED OF THE DISCHARGES
AND, AS THE COURT'S OPINION STATES, HE DID URGE THE COMPANY TO
DISREGARD ITS CLOSED-SHOP CONTRACT AND RE-EMPLOY NONMEMBERS OF THE
CERTIFIED UNION.  THE COMPANY'S COUNSEL REMINDED HIM THAT HE HAD
EXPRESSED CONCERN ABOUT THE CLOSED-SHOP PROVISION TO THE REGIONAL
DIRECTOR WHEN IT WAS BEING NEGOTIATED, AND THAT THE DIRECTOR HAD
REPLIED THAT HE PROBABLY "WOULD HAVE TO AGREE TO IT AS THE C.I.O.
CERTAINLY WOULD HAVE INSISTED UPON IT IF THEY HAD PREVAILED IN THE
ELECTION."  THE COMPANY INSISTED THAT "MEMBERSHIP IN THE UNION IS
BEYOND THE COMPANY'S CONTROL" AND THAT UNLESS THE UNION RELENTED IT
WOULD STAND BY THE CLOSED-SHOP CONTRACT.  THE COMPANY SUGGESTED,
HOWEVER, TO THE INDEPENDENT THAT IT CONDUCT INTERVIEWS WITH THOSE IT
HAD REJECTED AND RECONSIDER THEM INDIVIDUALLY.  THE UNION BY UNANIMOUS
VOTE REJECTED THE SUGGESTION.  THE REGIONAL DIRECTOR OF THE BOARD ALSO
WROTE TO THE HEAD OF THE INDEPENDENT ABOUT THE INDIVIDUALS DISCHARGED
"BECAUSE THEY WERE NOT MEMBERS OF YOUR UNION.  IT DEVELOPS THAT YOUR
UNION IS UNWILLING TO ACCEPT THEM INTO MEMBERSHIP.  I NEED NOT REMIND
YOU OF THE SERIOUSNESS OF THESE CHARGES."  THE BOARD REPRESENTATIVES
WERE UNABLE TO PERSUADE THE UNION TO ACCEPT THE REJECTED MEMBERS NOR
THE COMPANY TO REPUDIATE ITS AGREEMENT. 

AT THE OPENING OF THE HEARING BEFORE THE EXAMINER JULY 9, 1942, THE
COMPANY DECLARED IT WAS "READY TO TAKE ANY STEPS WHICH ARE NECESSARY TO
THE END THAT THESE PEOPLE BE PUT BACK TO WORK, AS IT HAS BEEN
THROUGHOUT, SINCE THIS AGREEMENT WAS ENTERED INTO."  IT SUGGESTED THAT
THE ATTORNEY FOR THE BOARD AND THE ATTORNEY FOR THE INDEPENDENT WORK
OUT A SETTLEMENT.  THE BOARD'S ATTORNEY EXPRESSED "TO THE
REPRESENTATIVE OF THE COMPANY MY THANKS FOR THE SUGGESTION." 
ADJOURNMENT WAS TAKEN AND COUNSEL FOR THE UNION WENT FROM SUMMERVILLE,
THE PLACE OF HEARING, TO RICHWOOD AND CALLED A MEETING OF THE
INDEPENDENT UNION.  THE BOARD ATTORNEY'S OBJECTION KEPT FURTHER
DEVELOPMENTS OUT OF THE RECORD EXCEPT THAT HE STATED, "I AM WILLING TO
LET THE RECORD SHOW THAT MR. RITCHIE (ATTORNEY FOR THE INDEPENDENT)
MADE ME A PROPOSITION WHICH I WAS UNABLE TO ACCEPT AND THAT I MADE HIM
ONE WHICH HE WAS UNABLE TO ACCEPT."  THE CASE THEREFORE PROCEEDED
AGAINST THE COMPANY.    THE BOARD DID NOT FIND ANY UNFAIR LABOR
PRACTICE ON THE PART OF THE COMPANY BETWEEN THE DATE OF THE SETTLEMENT
AGREEMENT AND THE ELECTION.  IN FACT, IT REFUSED TO ACCEPT THE
RECOMMENDATION OF THE TRIAL EXAMINER FOR SUCH A FINDING, SAYING THAT
"SUCH INTERFERENCE, IF ANY, WAS TOO TRIVIAL," WAS KNOWN TO THE C.I.O.,
WHICH MADE NO OBJECTION TO THE CERTIFICATION, AND HAD COME TO THE
KNOWLEDGE OF THE REGIONAL DIRECTOR PRIOR TO THE ELECTION. 
"NEVERTHELESS, HE PROCEEDED WITH THE ELECTION, FOUND IT TO BE A FAIR
ONE, AND CERTIFIED THE INDEPENDENT." 

NO UNFAIR LABOR PRACTICES AT ANY TIME AFTER THE SETTLEMENT AGREEMENT
ARE FOUND OR CHARGED AGAINST THE EMPLOYER EXCEPT THE MAKING AND
PERFORMING OF THE CLOSED-SHOP AGREEMENT.  THE BOARD STATES ITS POSITION
AS FOLLOWS:  "THE ISSUE REMAINS WHETHER, BY ENTERING INTO THE CLOSED
SHOP CONTRACT WITH THE INDEPENDENT WITH KNOWLEDGE THAT THE INDEPENDENT
INTENDED TO EXCLUDE EMPLOYEES FROM MEMBERSHIP AND BY DISCHARGING
EMPLOYEES DENIED MEMBERSHIP IN THE INDEPENDENT, AS SET FORTH ABOVE, THE
RESPONDENT VIOLATED THE ACT.  THE RESPONDENT CONTENDS THAT IT WAS BOUND
TO ENTER INTO A CLOSED-SHOP CONTRACT BY THE TERMS OF THE ELECTION
AGREEMENT BETWEEN THE RESPONDENT, THE UNION, AND THE INDEPENDENT, AND
URGES THE BOARD TO REGARD THE DISCHARGES AS PROPER SINCE MADE PURSUANT
TO THE CLOSED-SHOP CONTRACT. 

"WE DO NOT AGREE.  AN EMPLOYER MAY NOT ENTER INTO A CLOSED-SHOP
CONTRACT WHICH TO HIS KNOWLEDGE IS DESIGNED TO OPERATE AS AN INSTRUMENT
FOR EFFECTING DISCRIMINATION AGAINST HIS EMPLOYEES SOLELY BECAUSE OF
THEIR PRIOR UNION ACTIVITIES.  THE PROVISO IN SECTION 8(3) OF THE ACT
PERMITS AN EMPLOYER TO ENTER INTO AN AGREEMENT WITH THE DULY DESIGNATED
REPRESENTATIVE OF HIS EMPLOYEES, REQUIRING MEMBERSHIP IN THAT
ORGANIZATION AS A CONDITION OF EMPLOYMENT.  IT IS TRUE THAT UNDER THE
TERMS OF THE ELECTION AGREEMENT THE RESPONDENT WAS BOUND TO EXECUTE A
UNION-SHOP CONTRACT WITH THE VICTORIOUS UNION.  IT BY NO MEANS FOLLOWS,
HOWEVER, THAT THE RESPONDENT WAS ALSO BOUND BY THE ELECTION AGREEMENT
TO ACQUIESCE IN A SCHEME TO PENALIZE EMPLOYEES WHOSE CHOICE OF
REPRESENTATIVES WAS NOT THAT OF THE MAJORITY; NOR CAN THE PROVISO IN

"...  THE FACTS IN THE CASE MAKE IT APPARENT THAT THE RESPONDENT
(COMPANY) WAS PUT ON NOTICE THAT ITS (INDEPENDENT'S) REAL PURPOSE WAS
TO BAR FROM FUTURE EMPLOYMENT WITH THE RESPONDENT PERSONS WHO HAD
ADHERED TO THE CHARGING UNION IN THE ELECTION CAMPAIGN.  WHILE THE
TRIPARTITE AGREEMENT OF JANUARY 13, 1942, MAY HAVE BEEN VALID WHEN
MADE, PERFORMANCE OF ITS TERMS DID NOT REQUIRE THE RESPONDENT KNOWINGLY
TO BECOME A PARTY TO THE INDEPENDENT'S PLAN TO ELIMINATE FROM
RESPONDENT'S PAY ROLL EMPLOYEES SOLELY BECAUSE OF THEIR PAST UNION
ACTIVITIES.  ON THE CONTRARY, WHEN THIS UNLAWFUL SCHEME BECAME KNOWN TO
IT, THE RESPONDENT NOT ONLY HAD A RIGHT TO ABROGATE THE TRIPARTITE
AGREEMENT, BUT ALSO WAS UNDER AN AFFIRMATIVE OBLIGATION TO DO SO....
UNDER THESE CIRCUMSTANCES, THE CLOSED-SHOP AGREEMENT CANNOT BE DEEMED A
DEFENSE, BUT A DISCRIMINATORY DEVICE TO INSURE PERPETUATION OF THE
INDEPENDENT AND THUS DEPRIVE EMPLOYEES OF THEIR STATUTORY RIGHT TO
SELECT BARGAINING REPRESENTATIVES." 

HOLDING THAT EXECUTION AND PERFORMANCE OF THE CLOSED-SHOP AGREEMENT
AFTER THE SETTLEMENT AND CERTIFICATION BY THE BOARD WERE "UNFAIR LABOR
PRACTICES," THE BOARD HELD THEM EFFECTIVE ALSO TO REVIVE THE OLD
CHARGES SETTLED BY THE AGREEMENTS AND ELECTION AND IT WENT BACK TO
THOSE EVENTS TO FIND GROUNDS ON WHICH TO HOLD THAT THE EMPLOYER
DOMINATES THE INDEPENDENT. 

ACCORDINGLY IT ORDERED THAT THE COMPANY DISESTABLISH AND WITHDRAW ALL
RECOGNITION FROM THE INDEPENDENT AS REPRESENTATIVE OF ANY OF ITS
EMPLOYEES.  IT FORBADE "ANY CONTINUATION, RENEWAL, OR MODIFICATION OF
THE EXISTING CONTRACT (WHICH) WOULD PERPETUATE THE CONDITIONS WHICH
HAVE DEPRIVED EMPLOYEES" OF THEIR JOBS; IT ORDERED THE COMPANY TO CEASE
GIVING EFFECT TO ANY CONTRACT BETWEEN IT AND THE INDEPENDENT OR TO ANY
MODIFICATION OR EXTENSION THEREOF.  IT ALSO ORDERED THAT THE COMPANY
"OFFER THE AFORESAID 43 EMPLOYEES IMMEDIATE AND FULL REINSTATEMENT TO
THEIR FORMER OR SUBSTANTIALLY EQUIVALENT POSITIONS, WITHOUT PREJUDICE
TO THEIR SENIORITY OR OTHER RIGHTS AND PRIVILEGES, AND TO MAKE THEM
WHOLE FOR ANY LOSS OF PAY THEY MAY HAVE SUFFERED." 

THE UNDERLYING QUESTION IS, IN THE LANGUAGE OF THE BOARD'S BRIEF,
"WHETHER PETITIONER BY ENTERING INTO AND DISCHARGING EMPLOYEES PURSUANT
TO THE TERMS OF THE CLOSED-SHOP CONTRACT WITH THE INDEPENDENT VIOLATED
THIS LITTLE COMPANY AND ITS TWO HUNDRED EMPLOYEES. 

DISCRIMINATION, TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR
ORGANIZATION.  IF IT ENDED THERE IT WOULD OF COURSE OUTLAW ANY CLOSED
SHOP, FOR THE VERY ESSENCE OF THE CLOSED SHOP IS THAT THE EMPLOYER
DISCRIMINATES IN EMPLOYMENT TO REQUIRE MEMBERSHIP IN A PARTICULAR
UNION.  TO VALIDATE DISCRIMINATION IN SUCH CIRCUMSTANCES A PROVISO
FOLLOWS THAT NO LAW OF THE UNITED STATES "SHALL PRECLUDE AN EMPLOYER
FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION (NOT ESTABLISHED,
MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN THIS ACT AS AN UNFAIR
LABOR PRACTICE) TO REQUIRE AS A CONDITION OF EMPLOYMENT MEMBERSHIP
THEREIN, IF SUCH LABOR ORGANIZATION IS THE REPRESENTATIVE OF THE
EMPLOYEES...." 

AT THE TIME THIS CLOSED-SHOP AGREEMENT WAS MADE THE BOARD HAD
CERTIFIED THE INDEPENDENT AS REPRESENTATIVE OF THE EMPLOYEES.  UNDER
SEC. 8 IT WOULD HAVE BEEN AN UNFAIR LABOR PRACTICE HAD THE COMPANY
REFUSED TO BARGAIN WITH IT.  THE BOARD MADE THE CERTIFICATION, WITHOUT
OBJECTION BY THE DEFEATED C.I.O. AND WITH FULL KNOWLEDGE THAT THE
COMPANY WAS BOUND IN LAW AND IN GOOD FAITH TO GIVE THE CERTIFIED UNION
A CLOSED-SHOP CONTRACT.  WE DO NOT SAY, AND IT IS NOT NECESSARY NOW TO
DECIDE, THAT THE BOARD HAS NO POWER TO PROTECT MINORITIES AT THIS STAGE
OF THE PROCEEDINGS.  WE DO NOT MEAN TO PRECLUDE THE POWER OF THE BOARD,
WHEN THE CONTRACT SETTLING THE STRIKE, WITHDRAWING CHARGES AGAINST THE
COMPANY, AND CONSENTING TO AN ELECTION WITH A CLOSED SHOP TO THE WINNER
WAS BROUGHT TO THE BOARD, TO HAVE REFUSED TO DISMISS CHARGES AND
UNDERTAKE AN ELECTION UNLESS EACH UNION AGREED THAT, IF IT WON A CLOSED
SHOP, IT WOULD OPEN THE UNION TO MEMBERSHIP FROM THE LOSERS ON TERMS
THE BOARD DEEMED FAIR.  SINCE NO ONE COULD TELL WHO WOULD WIN, THIS
WOULD IN ANY EVENT HAVE BEEN AN IMPARTIAL ARRANGEMENT.  EVEN AFTER THE
INDEPENDENT WON, THE BOARD BEFORE CERTIFYING IT MIGHT PERHAPS PROPERLY
HAVE MADE CONDITIONS AS TO REASONABLE TERMS TO THE DEFEATED.  BUT THE
BOARD MADE NO CONDITIONS OR RESERVATIONS OF THE SORT.  INSTEAD, IT
TAKES THE POSITION, AND THE COURT IS HOLDING, THAT SUCH CONDITIONS MUST
BE IMPOSED ON THE UNION BY THE EMPLOYER.  HE MUST SEE THAT THE UNION
WITH WHICH HE HAS BEEN ORDERED TO BARGAIN MAKES PROPER TERMS FOR
ADMISSION INTO THAT CERTIFIED UNION OF ITS FORMER ENEMIES AND RIVALS. 
WE THINK THAT THE DECISION TO THAT EFFECT IS NOT ONLY UNAUTHORIZED BY
CONGRESS, BUT IS UTTERLY AT WAR WITH THE HANDS-OFF REQUIREMENTS WHICH
THE LAW LAYS UPON THE EMPLOYER, AND THAT THIS DECISION IS AT WAR WITH
ONE OF THE BASIC PURPOSES OF LABOR IN ITS STRUGGLE TO OBTAIN THIS ACT
AND OF CONGRESS IN ENACTING IT. 

OF COURSE THE CLOSED SHOP IS WELL KNOWN IN LABOR RELATIONS.  ITS
ESSENTIAL PHILOSOPHY IS THAT ONCE THE EMPLOYEES HAVE CHOSEN THEIR
REPRESENTATIVE UNION, IT IS ENTITLED TO BARGAIN FOR THE EMPLOYER'S HELP
TO MAINTAIN ITS CONTROL.  OTHER EMPLOYER AIDS TO A DOMINANT UNION, SUCH
AS THE CHECK-OFF, ARE ALSO CONCEDED TO UNIONS BY BARGAINING ON BEHALF
OF A MAJORITY WHEN THEY WOULD NOT BE AT ALL PERMISSIBLE FOR THE
EMPLOYER TO USE IN THE FIRST PLACE TO INFLUENCE THE WORKMEN TO CHOOSE A
PARTICULAR UNION BECAUSE HE FAVORED IT.  BUT THE IDEA OF THE CLOSED
SHOP IS THAT, WHILE THESE ACTS OF INFLUENCE OR PRESSURE ON WORKMEN ARE
UNFAIR WHEN EXERTED BY THE EMPLOYER IN HIS OWN INTEREST, THEY ARE FAIR
AND LAWFUL WHEN ENFORCED BY HIM AS AN INSTRUMENT OF THE UNION ITSELF. 
A CLOSED SHOP IS THE ULTIMATE GOAL OF MOST UNION ENDEAVOR, AND NOT A
FEW EMPLOYERS HAVE FOUND IT A STABILIZER OF LABOR RELATIONS BY PUTTING
OUT OF THEIR SHOPS MEN WHO WERE ANTAGONISTIC TO THE DOMINANT UNION,
THUS ENDING STRIFE FOR DOMINATION.  IT PUTS THE EMPLOYMENT OFFICE UNDER
A VETO OF THE UNION, WHICH USES ITS OWN MEMBERSHIP STANDARDS AS A BASIS
ON WHICH TO EXCLUDE MEN FROM EMPLOYMENT. 

NEITHER THE NATIONAL LABOR RELATIONS ACT NOR ANY OTHER ACT OF
CONGRESS EXPRESSLY OR BY IMPLICATION GIVES TO THE BOARD ANY POWER TO
SUPERVISE UNION MEMBERSHIP OR TO DEAL WITH UNION PRACTICES, HOWEVER
UNFAIR THEY MAY BE TO MEMBERS, TO APPLICANTS, TO MINORITIES, TO OTHER
UNIONS, OR TO EMPLOYERS.  THIS MAY OR MAY NOT HAVE BEEN A MISTAKE, BUT
IT WAS NO OVERSIGHT.  WE SUPPOSE THAT THERE IS NO RIGHT WHICH ORGANIZED
LABOR OF EVERY SHADE OF OPINION IN OTHER MATTERS WOULD UNITE MORE
STRONGLY IN DEMANDING THAN THE RIGHT OF EACH UNION TO CONTROL ITS OWN
ADMISSIONS TO MEMBERSHIP.  EACH UNION HAS INSISTED ON ITS FREEDOM TO
FIX ITS OWN QUALIFICATIONS OF APPLICANTS, TO DETERMINE THE VOTE BY
WHICH INDIVIDUAL ADMISSIONS WILL BE GRANTED, TO PRESCRIBE THE
INITIATION OR ADMISSION FEES, TO FIX THE DUES, TO PRESCRIBE THE DUTIES
TO WHICH MEMBERS MUST BE FAITHFUL AND TO DECIDE WHEN AND WHY THEY MAY
BE EXPELLED OR DISCIPLINED.  THE EXCLUSION OF THOSE WHOSE LOYALTY IS TO
A RIVAL UNION OR HOSTILE ORGANIZATION IS ONE OF THE MOST COMMON AND
MOST UNDERSTANDABLE OF PRACTICES, DESIGNED TO DEFEND THE UNION AGAINST
UNDERMINING, SPYING, AND DISCORD, AND POSSIBLE CAPTURE AND DELIVERY
OVER TO A RIVAL.  SOME UNIONS HAVE BATTLED TO EXCLUDE COMMUNISTS, SOME
RACKETEERS, AND ALL TO EXCLUDE THOSE DEEMED DISLOYAL TO THEIR
PURPOSES.  SEE WILLIAMS V. QUILL, 277 N.Y. 1, 7, 12 N.E.2D 547; MILLER
V. RUEHL, 166 MISC. 479, 2 N.Y.S.2D 394. 

THERE ARE THOSE WHO THINK THAT THE TIME HAS COME WHEN UNIONS SHOULD
BE DENIED THIS CONTROL OVER THEIR OWN AFFAIRS.  HOWEVER THIS MAY BE, WE
ONLY KNOW THAT CONGRESS HAS INCLUDED NO SUCH PRINCIPLE EXPRESSLY IN THE
ACT.  IF THE BOARD SHOULD ATTEMPT TO EXERCISE IT AS WE HAVE SUGGESTED
BY WAY OF A CONDITION ON ITS CONDUCTING AN ELECTION OR MAKING A
CERTIFICATION, A QUESTION OF ITS STATUTORY POWER TO DO SO MIGHT ARISE,
ON WHICH WE EXPRESS NO OPINION.  IT WOULD AT LEAST BE A FORTHRIGHT
EXERCISE OF POWER OVER THE UNIONS BY THE BOARD ITSELF ACTING IN THE
PUBLIC INTEREST AND WOULD NOT REQUIRE AN EMPLOYER TO ENGAGE IN
INTERFERENCE WITH UNION AFFAIRS IN DIRECT VIOLATION OF THE ACT. 

BUT THE COURT IS DECIDING NOT ONLY THAT WITHOUT AUTHORITY OF CONGRESS
THE ADMISSION PRACTICES OF A LABOR ORGANIZATION HAVING A CLOSED SHOP
MAY BE POLICED, BUT ALSO, CONTRARY AS WE THINK TO THE ACT, THAT THE
EMPLOYER IS EMPOWERED AND REQUIRED TO DO THE POLICING.  THIS WE THINK
DEFIES BOTH THE EXPRESS TERMS AND THE PHILOSOPHY OF THE ACT.  THE
LETTER OF THE ACT MAKES IT A FORBIDDEN PRACTICE FOR AN EMPLOYER TO
"INTERFERE WITH" OR "RESTRAIN" EMPLOYEES IN THE "RIGHT TO SELF
ORGANIZATION."  WE ASSUME THIS EMPLOYER KNEW THE INDEPENDENT WOULD
EXERCISE ITS POWER OVER ADMISSION PRIVILEGES TO SOME EXTENT TO PROTECT
ITSELF AGAINST INFILTRATION OF HOSTILE ELEMENTS.  THE BOARD MUST HAVE
KNOWN IT, TOO.  AND BOTH MUST HAVE KNOWN THE C.I.O. WOULD, ALSO, IF IT
WON.  HOWEVER, THE INDEPENDENT HAS NOT INDISCRIMINATELY EXCLUDED ALL
WHO WERE AGAINST IT IN THE ELECTION.  THE C.I.O. HAD 83 VOTES; ALL BUT
43 OF THESE VOTERS SEEM TO HAVE BEEN ADMITTED TO THE INDEPENDENT, AND
12 OF THOSE NEVER APPLIED, MAKING 31 APPARENTLY REJECTED.  IN VIEW OF
THE BITTERNESS AND DURATION OF THE STRIKE, INVOLVING SOME SHOOTING, IT
IS NOT STRANGE THAT GOOD WILL DID NOT DESCEND ON THE VICTORS AT ONCE. 
THE BOARD MAY HAVE EXPECTED MORE MODERATION WHEN IT CONDUCTED THE
CONSENT ELECTION AND CERTIFIED THE INDEPENDENT.  THERE IS NOTHING TO
SHOW THAT THE COMPANY DID NOT, TOO.  WHEN IT WAS FOUND HOW HARSHLY THE
INDEPENDENT HAD BEHAVED, THE COMPANY DID TRY PERSUASION TO GET THE
UNION LEADERS TO RELENT - THE COMPANY'S OWN INTERESTS WERE TO GET BACK
MORE OF ITS EXPERIENCED EMPLOYEES.  HOW IT COULD HAVE DONE MORE WITHOUT
BREAKING BOTH FAITH AND THE LAW, THE COURT DOES NOT POINT OUT, AND WE
DO NOT KNOW. 

OF COURSE, IF THE EMPLOYER IN A CLOSED SHOP IS TO BE RESPONSIBLE FOR
THE DISCRIMINATIONS OR UNFAIRNESS OF THE UNION, HE MUST HAVE A RIGHT TO
BE INFORMED ABOUT ITS ADMISSIONS.  IF, IN COLLECTIVE BARGAINING, A
UNION ASKED A CLOSED SHOP, THE EMPLOYER WOULD HAVE TO DEMAND TO KNOW
THE RULES AND PRACTICES ABOUT ADMISSION, THE FEES, THE BYLAWS, THE
METHOD OF ELECTING MEMBERS.  IF HE SHOULD DEMAND THIS AS A CONDITION OF
COLLECTIVE BARGAINING, WE SHOULD EXPECT THE BOARD TO HOLD HIM GUILTY OF
UNFAIR PRACTICES, AND WE HAVE NO DOUBT IT WOULD ASK THIS COURT TO
SUSTAIN IT.  YET HERE THE SOLE GROUND OF PENALIZING THIS EMPLOYER IS
THAT HE DID NOT DO JUST THAT.  SHOULD THE EMPLOYER HAVE MADE THE UNION
ADMIT ALL OF ITS FORMER ENEMIES?  IF NOT, BY WHAT STANDARD COULD HE
ALLOW IT TO SELECT?  MUST IT ALSO BE MADE TO ADMIT EVEN THOSE WHO WOULD
NOT SIGN APPLICATIONS OR PAY INITIATION FEES CLAIMED TO BE TOO
ONEROUS?  THE EMPLOYER IS REQUIRED TO REINSTATE WITH BACK PAY A DOZEN
WHO NEVER EVEN ASKED TO JOIN THE CERTIFIED UNION.  BUT NEITHER THE
COURT NOR THE BOARD SAYS WHAT THE EMPLOYER SHOULD HAVE REQUIRED THE
UNION TO ADOPT AS AN ADMISSION POLICY. 

THE STATUTE EXPRESSLY PERMITS A CLOSED SHOP.  IT CAN BE DENIED ONLY
WHEN THE CERTIFIED UNION IS "ESTABLISHED, MAINTAINED, OR ASSISTED" BY
UNFAIR LABOR PRACTICES OF THE EMPLOYER.  BUT THE STATUTE CANNOT MEAN
THAT THE MAKING AND PERFORMANCE OF A CLOSED-SHOP CONTRACT IN ITSELF IS
AN UNFAIR PRACTICE WHICH INVALIDATES A CLOSED SHOP.  TO SO INTERPRET IT
WOULD BE TO BELIEVE THE CONGRESS BY THIS PROVISION WAS PERPETRATING A
HOAX.  BUT IF IT MEANS THAT THE UNION CAN HAVE A CLOSED SHOP AND THE
EMPLOYER WILL SUPERVISE ITS MEMBERSHIP, IT IS A STRANGE CONTRADICTION
IN AN ACT WHOSE CHIEF PURPOSE WAS TO STERILIZE THE EMPLOYERS AND TO
FREE WORKMEN OF THE INFLUENCE THEY EXERTED THROUGH CONTROL OF THE RIGHT
TO WORK.    WE CAN QUITE UNDERSTAND, AND WE DO NOT MEAN TO CRITICIZE,
THE MOTIVES WHICH ANIMATED THE BOARD.  WE ARE DEALING HERE WITH AN
INDUSTRY LOCATED IN A SMALL COMMUNITY WHERE OPPORTUNITIES FOR OTHER
EMPLOYMENT ARE PROBABLY NOT PLENTIFUL.  IT IS NOT UNLIKELY THAT DENIAL
OF THE RIGHT TO WORK FOR THIS COMPANY WILL KEEP THESE MEN FROM EARNING
A LIVELIHOOD IN A PLACE THEY LONG HAVE LIVED.  IN SO FAR AS THE BOARD
HAS BEEN STIRRED BY CONCERN FOR INDIVIDUAL AND MINORITY PROTECTION
AGAINST ARBITRARY UNION ACTION, WE BOTH UNDERSTAND AND SYMPATHIZE WITH
THEIR CONCERN.  THE EMPLOYER IS THE ONLY ONE IT CAN LAY HANDS ON, AND
THE TEMPTATION IS GREAT TO USE HIM TO PROTECT MINORITY RIGHTS IN THE
LABOR MOVEMENT.  THIS AND THE OTHER CASES BEFORE US GIVE GROUND FOR
BELIEF THAT THE LABOR MOVEMENT IN THE UNITED STATES IS PASSING INTO A
NEW PHASE.  THE STRUGGLE OF THE UNIONS FOR RECOGNITION AND RIGHTS TO
BARGAIN, AND OF WORKMEN FOR THE RIGHT TO JOIN WITHOUT INTERFERENCE,
SEEMS TO BE CULMINATING IN A VICTORY FOR LABOR FORCES.  WE APPEAR NOW
TO BE ENTERING THE PHASE OF STRUGGLE TO RECONCILE THE RIGHTS OF
INDIVIDUALS AND MINORITIES WITH THE POWER OF THOSE WHO CONTROL
COLLECTIVE BARGAINING GROUPS.  WE HAVE JOINED IN THE OPINION IN STEELE
V. LOUISVILLE & NASHVILLE R. CO., ANTE, P. 192.  THAT CASE AROSE UNDER
THE RAILWAY LABOR ACT, WHICH CONTAINS NO AUTHORIZATION WHATEVER FOR A
CLOSED SHOP, ON THE CONTRARY FORBIDS THE DISCRIMINATION UNDERLYING THE
ADOPTION OF A CLOSED SHOP, AND DEALS WITH AN INDUSTRY AND A LABOR GROUP
WHICH NEVER HAS HAD OR SOUGHT A CLOSED SHOP.  BUT HERE WE DEAL WITH A
MINORITY WHICH THE STATUTE HAS SUBJECTED TO CLOSED-SHOP PRACTICES. 
WHETHER THE CLOSED SHOP, WITH OR WITHOUT THE CLOSED UNION, SHOULD OR
SHOULD NOT BE PERMITTED WITHOUT SUPERVISION IS IN THE DOMAIN OF POLICY
MAKING, WHICH IT IS NOT FOR THIS COURT TO UNDERTAKE.  NEITHER DO WE
FIND ANY AUTHORITY IN THE NATIONAL LABOR RELATIONS BOARD TO UNDERTAKE
IT. 

IT HAPPENS TO BE AN INDEPENDENT THAT WON HERE.  BUT COUNSEL FOR THE
BOARD ASSURED US ON ARGUMENT THAT THIS IS NOT A ONE-WAY POLICY TO
REQUIRE INDEPENDENT UNIONS TO ADMIT THEIR ENEMIES.  IT WOULD, AS WE
UNDERSTAND IT, HAVE BEEN APPLIED IN THE SAME MANNER IF THE C.I.O. HAD
WON AND HAD EXCLUDED SOME INDEPENDENT MEMBERS - ON SUSPICION, PERHAPS,
THAT THEY WERE COMPANY SPIES.  THE OBSTACLE THAT THIS DECISION WILL
INTERPOSE TO ALL FUTURE BARGAINING FOR CLOSED SHOPS IS LIKELY TO BE
FELT BY C.I.O. AND A.F. OF L. UNIONS MANY TIMES AS OFTEN AS BY
INDEPENDENTS. 

OF COURSE IT IS THE EMPLOYER WHO IS PENALIZED HERE, AND ON SHALLOW
AND SUPERFICIAL EXAMINATION IT MAY SEEM LIKE ANOTHER VICTORY FOR
LABOR.  THE EMPLOYER MUST PAY MANY THOUSANDS OF DOLLARS FOR HOURS
UNWORKED, BECAUSE IT PERFORMED RELUCTANTLY BUT IN GOOD FAITH ITS CLOSED
SHOP AGREEMENT MADE UNDER AUTHORITY OF CONGRESS AND WITH KNOWLEDGE AND
ENCOURAGEMENT OF THE BOARD, AND WITH THE APPROVAL AND INSTIGATION OF
THE C.I.O. UNION WHOSE MEMBERS NOW GAIN BACK PAY BY ITS REPUDIATION. 
WE THINK THIS CANNOT BE JUSTIFIED AS AN UNFAIR LABOR PRACTICE OUTLAWED
BY CONGRESS.  THAT RESISTANCE TO CLOSED-SHOP UNIONS WILL LIKELY BE
STIFFENED IF EMPLOYERS MUST UNDERWRITE THE FAIRNESS OF CLOSED-SHOP
UNIONS TO APPLICANTS AND MEMBERS, AND THAT A GOOD DEAL LABOR HAS FOUGHT
FOR MAY BE JEOPARDIZED IF THE PRICE OF OBTAINING IT IS TO HAVE THE
UNION POLICED BY THE EMPLOYER, ARE CONSIDERATIONS BEYOND OUR CONCERN. 
WE CAN ONLY VIEW THIS AS A VERY UNFAIR CONSTRUCTION OF THE STATUTE TO
THE EMPLOYER AND ONE NOT WARRANTED BY ANYTHING CONGRESS HAS DIRECTED OR
AUTHORIZED. 

FN1  THE BOARD HAS DECLARED ITS POLICY WITH RESPECT TO CONSENT
ELECTIONS AS FOLLOWS:  "HOWEVER, THE BOARD DOES NOT ORDINARILY ORDER
ELECTIONS IN THE PRESENCE OF UNREMEDIED UNFAIR LABOR PRACTICES, WHETHER
MERELY ALLEGED OR ALREADY FOUND BY THE BOARD, UNLESS THE LABOR
ORGANIZATION WHICH INSTITUTED THE CHARGES HAS AGREED IN ADVANCE THAT IT
WILL NOT RELY UPON THE UNFAIR LABOR PRACTICES AS A BASIS FOR OBJECTING
TO THE CONDUCT OR RESULTS OF THE ELECTION.  THE BOARD ORDERS AN
ELECTION ONLY WHEN IT IS SATISFIED, AFTER CONSIDERING ALL EVIDENCE,
RESPECTING THE EMPLOYER'S COMPLIANCE WITH A PRIOR ORDER CONCERNING
UNFAIR LABOR PRACTICES, THAT 'AN ELECTION FREE FROM ALL EMPLOYER
COMPULSIONS, RESTRAINTS AND INTERFERENCE, CAN BE HELD.'"  EIGHTH ANNUAL
REPORT (1943) 49. 
..END :

















UNITED STATES V. JOHNSON, 323 U.S. 273 


NO. 43.  ARGUED NOVEMBER 8, 1944.  - DECIDED DECEMBER 18, 1944.  - 53
F.SUPP.  596, AFFIRMED. 


1.  A PROSECUTION FOR USING THE MAILS FOR SENDING DENTURES IN
VIOLATION OF THE FEDERAL DENTURE ACT - WHICH ACT CONTAINS NO SPECIFIC
PROVISION RELATIVE TO THE VENUE OF PROSECUTIONS THEREUNDER - CAN NOT BE
HAD IN THE DISTRICT TO WHICH THE DENTURES WERE SENT BUT ONLY IN THE
DISTRICT FROM WHICH THEY WERE SENT.  P. 277. 

2.  SUCH CONSTRUCTION OF THE FEDERAL DENTURE ACT, THOUGH NOT REQUIRED
BY THE COMPULSIONS OF ARTICLE III, SEC. 2 OF THE CONSTITUTION AND OF
THE SIXTH AMENDMENT, IS MORE CONSONANT WITH THE CONSIDERATIONS OF
HISTORIC EXPERIENCE AND POLICY WHICH UNDERLIE THOSE SAFEGUARDS IN THE
CONSTITUTION REGARDING THE TRIAL OF CRIMES.  P. 275. 

3.  QUESTIONS OF VENUE IN CRIMINAL CASES ARE NOT MERELY MATTERS OF
FORMAL LEGAL PROCEDURE; THEY RAISE DEEP ISSUES OF PUBLIC POLICY IN THE
LIGHT OF WHICH LEGISLATION MUST BE CONSTRUED.  P. 276. 

4.  ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, DISTINGUISHED. 
P. 276. 

UNITED STATES V. JOHNSON ET AL., DOING BUSINESS AS UNITED STATES
DENTAL CO., ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF DELAWARE. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT QUASHING AN
INFORMATION FOR VIOLATION OF THE FEDERAL DENTURE ACT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE CONSTRUCTION OF THE FEDERAL DENTURE ACT OF
1942, 56 STAT. 1087, 18 U.S.C. SEC. 420(F)(G)(H)(SUPP.  1943), WHICH
PROVIDES THAT "...  IT SHALL BE UNLAWFUL, IN THE COURSE OF THE CONDUCT
OF A BUSINESS OF CONSTRUCTING OR SUPPLYING DENTURES FROM CASTS OR
IMPRESSIONS SENT THROUGH THE MAILS OR IN INTERSTATE COMMERCE, TO USE
THE MAILS OR ANY INSTRUMENTALITY OF INTERSTATE COMMERCE FOR THE PURPOSE
OF SENDING OR BRINGING INTO  ..."  A STATE OR TERRITORY ANY DENTURE THE
CAST OF WHICH WAS TAKEN BY A PERSON NOT LICENSED TO PRACTICE DENTISTRY
IN THE STATE INTO WHICH THE DENTURE IS SENT.  AN INFORMATION, FILED
OCTOBER 4, 1943, IN THE DISTRICT COURT FOR THE DISTRICT OF DELAWARE,
CHARGED THAT APPELLEES PUT INTO THE MAILS AT CHICAGO FOR DELIVERY IN
HOUSTON, DELAWARE, DENTURES IN VIOLATION OF THE DELAWARE LAWS
PERTAINING TO DENTAL PRACTICE, AND THEREBY VIOLATED THE FEDERAL DENTURE
ACT.  THE INFORMATION WAS QUASHED ON THE GROUND THAT PROSECUTION OF
APPELLEES COULD ONLY BE HAD WHERE THE ILLEGAL DENTURES WERE DEPOSITED. 
53 F.SUPP.  596.  A SECOND INFORMATION, ADDING COUNTS ALLEGING
TRANSMISSION INTO AND DELIVERY IN DELAWARE, WAS QUASHED BY ENTRY OF A
FORMAL ORDER REFERRING TO THE COURT'S EARLIER OPINION.  FN1  THE
GOVERNMENT HAS APPEALED DIRECTLY TO THIS COURT UNDER THE CRIMINAL
APPEALS ACT.  34 STAT. 1246, AS AMENDED, 18 U.S.C. SEC. 682(SUPP. 
1943). 

MUST THESE APPELLEES BE TRIED IN THE NORTHERN DISTRICT OF ILLINOIS OR
MAY THEY BE TRIED IN THE DISTRICT OF ANY STATE THROUGH WHICH THE
DENTURES WERE CARRIED INCLUDING DELAWARE, THE PLACE OF DELIVERY?  HAS
CONGRESS AUTHORIZED SUCH DISCRETION IN THE ENFORCEMENT OF THIS ACT?  IF
IT HAS, THERE IS AN END TO THE MATTER, FOR CONGRESS MAY
CONSTITUTIONALLY MAKE THE PRACTICES WHICH LED TO THE FEDERAL DENTURE
ACT TRIABLE IN ANY FEDERAL DISTRICT THROUGH WHICH AN OFFENDING DENTURE
IS TRANSPORTED.  ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56.  AN
ACCUSED IS SO TRIABLE, IF A FAIR READING OF THE ACT REQUIRES IT.  BUT
IF THE ENACTMENT REASONABLY PERMITS THE TRIAL OF THE SENDER OF OUTLAWED
DENTURES TO BE CONFINED TO THE DISTRICT OF SENDING, AND THAT OF THE
IMPORTER TO THE DISTRICT INTO WHICH THEY ARE BROUGHT, SUCH CONSTRUCTION
SHOULD BE PLACED UPON THE ACT.  SUCH CONSTRUCTION, WHILE NOT REQUIRED
BY THE COMPULSIONS OF ARTICLE III, SEC. 2 OF THE CONSTITUTION AND OF
THE SIXTH AMENDMENT, IS MORE CONSONANT WITH THE CONSIDERATIONS OF
HISTORIC EXPERIENCE AND POLICY WHICH UNDERLIE THOSE SAFEGUARDS IN THE
CONSTITUTION REGARDING THE TRIAL OF CRIMES. 

AWARE OF THE UNFAIRNESS AND HARDSHIP TO WHICH TRIAL IN AN ENVIRONMENT
ALIEN TO THE ACCUSED EXPOSES HIM, THE FRAMERS WROTE INTO THE
CONSTITUTION THAT "THE TRIAL OF ALL CRIMES  ...  SHALL BE HELD IN THE
STATE WHERE THE SAID CRIMES SHALL HAVE BEEN COMMITTED  ..."  ARTICLE
III, SEC. 2, CL. 3.  AS THOUGH TO UNDERSCORE THE IMPORTANCE OF THIS
SAFEGUARD, IT WAS REINFORCED BY THE PROVISION OF THE BILL OF RIGHTS
REQUIRING TRIAL "BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN
THE CRIME SHALL HAVE BEEN COMMITTED."  SIXTH AMENDMENT.  BY UTILIZING
THE DOCTRINE OF A CONTINUING OFFENSE, CONGRESS MAY, TO BE SURE, PROVIDE
THAT THE LOCALITY OF A CRIME SHALL EXTEND OVER THE WHOLE AREA THROUGH
WHICH FORCE PROPELLED BY AN OFFENDER OPERATES.  THUS, AN ILLEGAL USE OF
THE MAILS OR OF OTHER INSTRUMENTS OF COMMERCE MAY SUBJECT THE USER TO
PROSECUTION IN THE DISTRICT WHERE HE SENT THE GOODS, OR IN THE DISTRICT
OF THEIR ARRIVAL, OR IN ANY INTERVENING DISTRICT.  PLAINLY ENOUGH, SUCH
LEEWAY NOT ONLY OPENS THE DOOR TO NEEDLESS HARDSHIP TO AN ACCUSED BY
PROSECUTION REMOTE FROM HOME AND FROM APPROPRIATE FACILITIES FOR
DEFENSE.  IT ALSO LEADS TO THE APPEARANCE OF ABUSES, IF NOT TO ABUSES,
IN THE SELECTION OF WHAT MAY BE DEEMED A TRIBUNAL FAVORABLE TO THE
PROSECUTION. 

THESE ARE MATTERS THAT TOUCH CLOSELY THE FAIR ADMINISTRATION OF
CRIMINAL JUSTICE AND PUBLIC CONFIDENCE IN IT, ON WHICH IT ULTIMATELY
RESTS.  THESE ARE IMPORTANT FACTORS IN ANY CONSIDERATION OF THE
EFFECTIVE ENFORCEMENT OF THE CRIMINAL LAW.  THEY HAVE BEEN ADVERTED TO,
FROM TIME TO TIME, BY EMINENT JUDGES; AND CONGRESS HAS NOT BEEN
UNMINDFUL OF THEM.  QUESTIONS OF VENUE IN CRIMINAL CASES, THEREFORE,
ARE NOT MERELY MATTERS OF FORMAL LEGAL PROCEDURE.  THEY RAISE DEEP
ISSUES OF PUBLIC POLICY IN THE LIGHT OF WHICH LEGISLATION MUST BE
CONSTRUED.  IF AN ENACTMENT OF CONGRESS EQUALLY PERMITS THE UNDERLYING
SPIRIT OF THE CONSTITUTIONAL CONCERN FOR TRIAL IN THE VICINAGE TO BE
RESPECTED RATHER THAN TO BE DISRESPECTED, CONSTRUCTION SHOULD GO IN THE
DIRECTION OF CONSTITUTIONAL POLICY EVEN THOUGH NOT COMMANDED BY IT. 

IT IS SIGNIFICANT THAT WHEN CONGRESS DESIRES TO GIVE A CHOICE OF
TRIAL, IT DOES SO BY SPECIFIC VENUE PROVISIONS GIVING JURISDICTION TO
PROSECUTE IN ANY CRIMINAL COURT OF THE UNITED STATES THROUGH WHICH A
PROCESS OF WRONGDOING MOVES.  SUCH WAS THE SITUATION IN ARMOUR PACKING
CO. V. UNITED STATES, SUPRA.  THE OFFENSE THERE WAS UNDER THE ELKINS
ACT FOR THE TRANSPORTATION OF GOODS AT ILLEGAL FREIGHT RATES, AND
CONGRESS SPECIFICALLY PROVIDED FOR PROSECUTION IN ANY DISTRICT "THROUGH
WHICH THE TRANSPORTATION MAY HAVE BEEN CONDUCTED."  32 STAT. 847, AS
AMENDED, 49 U.S.C. SEC. 41(1). 

IN THE FEDERAL DENTURE ACT CONGRESS DID NOT MAKE PROVISION FOR TRIAL
IN ANY DISTRICT THROUGH WHICH THE GOODS WERE SHIPPED.  THE ABSENCE OF
SUCH A PROVISION WOULD IN ITSELF BE SIGNIFICANT.  ITS SIGNIFICANCE IS
ENHANCED WHEN IT APPEARS THAT THE ATTENTION OF CONGRESS WAS DIRECTED BY
THE POSTMASTER GENERAL TO THE DESIRABILITY OF AUTHORITY FOR A
DISCRETIONARY TRIAL EITHER AT THE PLACE OF SHIPMENT OR AT THE PLACE OF
RECEIPT.  HE WROTE TO THE CHAIRMAN OF THE HOUSE COMMITTEE ON INTERSTATE
AND FOREIGN COMMERCE "THAT CONSIDERATION SHOULD BE GIVEN TO THE
ADVISABILITY OF HAVING THE MEASURE PROVIDE FOR PROSECUTION OF VIOLATORS
IN THE JURISDICTION WHERE THE MATERIAL IS CAUSED TO BE DELIVERED AS
WELL AS IN THE JURISDICTION FROM WHICH IT IS SENT."  HEARINGS BEFORE
SUBCOMMITTEE OF HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON
H.R. 5674, 77TH CONG., 2D SESS. (1942) P. 3.  AND THE COMMITTEE ALSO
INVITED THE VIEWPOINT OF REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE
"ON THE LANGUAGE OF THE BILL."  ID. AT 28.  IN VIEW OF THE KEEN
AWARENESS OF ENFORCING OFFICIALS AS WELL AS THAT OF THE MEMBERS OF THE
COMMITTEE ON INTERSTATE COMMERCE OF THE PROBLEMS RAISED BY VENUE IN
CRIMINAL TRIALS, IT IS INADMISSIBLE TO SUGGEST EITHER OVERSIGHT ON THE
PART OF CONGRESS IN FAILING TO MAKE PROVISION FOR CHOICE OF VENUE OR TO
MAKE THE CAVALIER ASSUMPTION THAT THAT WHICH IS SPECIFICALLY PROVIDED
FOR IN OTHER ENACTMENTS - I.E., TRIAL IN MORE THAN ONE DISTRICT - WAS
AUTHORIZED BUT THROUGH PARSIMONY OF LANGUAGE LEFT UNEXPRESSED IN THE
FEDERAL DENTURE ACT. 

THE ABSENCE OF A VENUE PROVISION SUCH AS THAT WHICH CONGRESS WROTE
INTO THE ELKINS ACT IS FAR MORE RATIONALLY EXPLAINED BY DUE REGARD TO
THE DIFFERENCE BETWEEN THE OFFENSES UNDER THE ELKINS AND THE FEDERAL
DENTURE ACTS RESPECTIVELY.  THE VENUE PROVISION UNDER THE ELKINS ACT
UNDERLINES THE OFFENSE DEFINED BY THAT ACT, WHICH WAS NOT THE ILLEGAL
SENDING OR THE BRINGING OF GOODS BUT THEIR "TRANSPORTATION."  THAT -
TRANSPORTATION - IS INESCAPABLY A PROCESS, A CONTINUING PHENOMENON. 
THE FEDERAL DENTURE ACT DID NOT MAKE "TRANSPORTATION" THE OFFENSE.  IT
PROSCRIBED THE USE OF THE MAILS FOR "THE PURPOSE OF SENDING OR BRINGING
INTO ANY STATE" UNLAWFUL DENTURES.  THE ACT THEREBY HIT TWO TYPES OF
VIOLATORS - THE SENDER AND THE UNLICENSED DENTIST WHO BRINGS IN
DENTURES FROM WITHOUT.  IT IS A REASONABLE AND NOT A STRAINED
CONSTRUCTION TO READ THE STATUTE TO MEAN THAT THE CRIME OF THE SENDER
IS COMPLETE WHEN HE USES THE MAILS IN CHICAGO, AND THE CRIME OF THE
UNLICENSED DENTIST IN CALIFORNIA OR FLORIDA OR DELAWARE, WHO ORDERS THE
DENTURES FROM CHICAGO, IS COMMITTED IN THE STATE INTO WHICH HE BRINGS
THE DENTURES.  AS A RESULT, THE TRIAL OF THE SENDER IS RESTRICTED TO
ILLINOIS AND THAT OF THE UNLICENSED DENTIST TO DELAWARE OR FLORIDA OR
CALIFORNIA.  THE ILLICIT SENDER IN CHICAGO CANNOT BE HAULED FOR TRIAL
ACROSS THE CONTINENT, AND, CONVERSELY, THE UNLICENSED DENTIST CANNOT BE
COMPELLED TO STAND TRIAL IN CHICAGO. 

THE LARGE POLICY BACK OF THE CONSTITUTIONAL SAFEGUARDS COUNSELS
AGAINST THE UNRESTRICTED CONSTRUCTION FOR WHICH THE GOVERNMENT CONTENDS
WHEN CONGRESS HAS NOT COMMANDED IT; AND NO CONSIDERATIONS OF EXPEDIENCY
REQUIRE IT.  PROSECUTIONS OF FEDERAL CRIMES ARE UNDER THE GENERAL
SUPERVISION OF THE ATTORNEY GENERAL OF THE UNITED STATES; UNITED STATES
ATTORNEYS DO NOT EXERCISE AUTONOMOUS AUTHORITY.  THE VINDICATION OF THE
FEDERAL DENTURE ACT THEREFORE DOES NOT DEPEND UPON THE WILLINGNESS OF
SOME LOCAL UNITED STATES ATTORNEY TO PROSECUTE ON BEHALF OF A LOCAL
VICTIM.  WHILE IT MIGHT FACILITATE THE GOVERNMENT'S PROSECUTION IN A
CASE LIKE THIS TO HAVE ITS WITNESSES NEAR THE PLACE OF TRIAL, THERE
MUST BE BALANCED AGAINST THE INCONVENIENCE OF TRANSPORTING THE
GOVERNMENT'S WITNESSES TO TRIAL AT THE PLACE OF THE SENDER THE SERIOUS
HARDSHIP OF DEFENDING PROSECUTIONS IN PLACES REMOTE FROM HOME
(INCLUDING THE ACCUSED'S DIFFICULTIES, FINANCIAL AND OTHERWISE, SEE
R.S. SEC. 878, 28 U.S.C. SEC. 656, OF MARSHALLING HIS WITNESSES), AS
WELL AS THE TEMPTATION TO ABUSES, ALREADY REFERRED TO, IN THE
ADMINISTRATION OF CRIMINAL JUSTICE.  INASMUCH AS THE STATUTE PERMITS
AND DOES NOT FORBID THIS CONSTRUCTION, THE JUDGMENT BELOW SHOULD BE
AFFIRMED.  AFFIRMED. 

FN1  WE ARE CONCERNED ONLY WITH THIS LATTER INFORMATION, BUT THE
COURT'S OPINION, DELIVERED IN CONNECTION WITH THE FIRST INFORMATION,
GAVE ITS REASONS FOR QUASHING BOTH INFORMATIONS. 

MR. JUSTICE MURPHY, CONCURRING. 

I JOIN IN THE OPINION OF THE COURT AND BELIEVE THAT THE JUDGMENT
SHOULD BE AFFIRMED. 

CONGRESS HAS THE CONSTITUTIONAL POWER TO FIX VENUE AT ANY PLACE WHERE
A CRIME OCCURS.  OUR PROBLEM HERE IS TO DETERMINE, IN THE ABSENCE OF A
SPECIFIC VENUE PROVISION, WHERE THE CRIME OUTLAWED BY THE FEDERAL
DENTURE ACT OCCURRED FOR PURPOSES OF VENUE. 

THE ACT PROHIBITS THE USE OF THE MAILS FOR THE PURPOSE OF SENDING OR
BRINGING INTO ANY STATE CERTAIN PROHIBITED ARTICLES.  IT IS UNDISPUTED
THAT WHEN A DEFENDANT PLACES A PROHIBITED ARTICLE IN THE MAILS IN
ILLINOIS FOR THE PURPOSE OF SENDING IT INTO DELAWARE HE HAS COMPLETED A
STATUTORY OFFENSE.  HENCE HE IS TRIABLE IN ILLINOIS.  BUT TO HOLD THAT
THE STATUTORY CRIME ALSO ENCOMPASSES THE RECEIPT OF THE PROHIBITED
ARTICLE IN DELAWARE, JUSTIFYING A TRIAL AT THAT POINT, REQUIRES AN
IMPLICATION THAT I AM UNWILLING TO MAKE IN THE ABSENCE OF MORE EXPLICIT
CONGRESSIONAL LANGUAGE. 

VERY OFTEN THE DIFFERENCE BETWEEN LIBERTY AND IMPRISONMENT IN CASES
WHERE THE DIRECT EVIDENCE OFFERED BY THE GOVERNMENT AND THE DEFENDANT
IS EVENLY BALANCED DEPENDS UPON THE PRESENCE OF CHARACTER WITNESSES. 
THE DEFENDANT IS MORE LIKELY TO OBTAIN THEIR PRESENCE IN THE DISTRICT
OF HIS RESIDENCE, WHICH IN THIS INSTANCE IS USUALLY THE PLACE WHERE THE
PROHIBITED ARTICLE IS MAILED.  THE INCONVENIENCE, EXPENSE AND LOSS OF
TIME INVOLVED IN TRANSPLANTING THESE WITNESSES TO TESTIFY IN TRIALS FAR
REMOVED FROM THEIR HOMES ARE OFTEN TOO GREAT TO WARRANT THEIR USE. 
MOREOVER, THEY ARE LIKELY TO LOSE MUCH OF THEIR EFFECTIVENESS BEFORE A
DISTANT JURY THAT KNOWS NOTHING OF THEIR REPUTATIONS.  SUCH FACTORS
MAKE IT DIFFICULT FOR ME TO CONCLUDE, WHERE CONGRESS HAS NOT SAID SO
SPECIFICALLY, THAT WE SHOULD CONSTRUE THE FEDERAL DENTURE ACT AS
COVERING MORE THAN THE FIRST SUFFICIENT AND PUNISHABLE USE OF THE MAILS
INSOFAR AS THE SENDER OF A PROHIBITED ARTICLE IS CONCERNED.  THE
PRINCIPLE OF NARROW CONSTRUCTION OF CRIMINAL STATUTES DOES NOT WARRANT
INTERPRETING THE "USE" OF THE MAILS TO COVER ALL POSSIBLE USES IN LIGHT
OF THE FOREGOING CONSIDERATIONS. 

MR. JUSTICE REED, DISSENTING. 

THE STATUTE UNDER CONSIDERATION CONDEMNS THE "USE" OF "THE MAILS OR
ANY INSTRUMENTALITY OF INTERSTATE COMMERCE FOR THE PURPOSE OF SENDING
OR BRINGING INTO ANY STATE OR TERRITORY" ANY DENTURE WHICH HAS BEEN
MADE WITHOUT COMPLIANCE WITH THE LAWS OF THAT STATE OR TERRITORY,
RELATING TO THE FURNISHING OF SUCH APPLIANCES.  THE COURT NARROWLY
INTERPRETS THE TERM "USE" TO CONDEMN AS CRIMINAL ONLY THE FIRST USE OF
THE MAILS; IN THIS WAY THE COURT RESTRICTS VENUE FOR PROSECUTION TO
ILLINOIS FOR TRIAL OF AN OFFENDER WHO MAILS A DENTURE IN ILLINOIS WHICH
IS SUBSEQUENTLY DELIVERED THROUGH "USE" OF THE MAILS IN DELAWARE.  WE
THINK, HOWEVER, THAT THE STATUTE CONDEMNS AND MAKES CRIMINAL ANY USE OF
THE MAILS FOR THE PROHIBITED PURPOSE.  UNDER THIS INTERPRETATION THE
APPELLEES' USE OF THE MAILS IS PUNISHABLE IN DELAWARE AND THE DISMISSAL
OF THE INFORMATION IN THIS CASE SHOULD BE REVERSED. 

THE VENUE OF A CRIME MAY BE FIXED AT ANY PLACE WHERE THE ACTS
DENOUNCED AS CRIMES OCCUR.  FN1 THERE IS NO DISAGREEMENT AS TO THIS
RULE OF LAW.  THE COURT REACHES ITS CONCLUSION UPON VENUE UNDER THE
FEDERAL DENTURE ACT NOT UPON ANY COMPULSION OF CONSTITUTION OR STATUTE
BUT BECAUSE A RESTRICTION OF THE VENUE TO THE PLACE OF MAILING SEEMED
TO IT MORE CONSONANT WITH THE UNDERLYING PURPOSES OF THE CONSTITUTIONAL
PROVISIONS AS TO VENUE.  THESE PURPOSES ARE THOUGHT, AS THE COURT
EXPRESSES IT, TO INCLUDE A TRIAL IN AN ENVIRONMENT WHICH IS NOT ALIEN
TO THE ACCUSED.    WE THINK THE COURT MISAPPREHENDS THE PURPOSE OF THE
CONSTITUTIONAL PROVISIONS.  WE UNDERSTAND THEM TO ASSURE A TRIAL IN THE
PLACE WHERE THE CRIME IS COMMITTED AND NOT TO BE CONCERNED WITH THE
DOMICILE OF THE CRIMINAL NOR WITH HIS FAMILIARITY WITH THE ENVIRONMENT
OF THE PLACE OF TRIAL.  HAAS V. HENKEL, 216 U.S. 462.  INDEED IN THE
PRESENT INFORMATION NOTHING APPEARS AS TO RESIDENCE OR DOMICILE OF THE
ACCUSED OR AS TO THEIR PLACE OF BUSINESS. 

CONGRESS BY ITS SPECIFICATION OF THE PRECISE ACTS DENOUNCED AS CRIMES
FIXES VENUE AT THE PLACE WHERE THOSE ACTS ARE COMMITTED.  OUR INQUIRY,
THEN, MUST BE DIRECTED TO A DETERMINATION OF WHAT CONSTITUTES THE CRIME
DENOUNCED BY THE DENTURE ACT.  THE STATUTE CONDEMNS AS UNLAWFUL THE
"USE" OF THE "MAILS OR ANY INSTRUMENTALITY OF INTERSTATE COMMERCE FOR
THE PURPOSE OF SENDING OR BRINGING INTO ANY STATE" THE PROHIBITED
DENTURES.  IT IS NOT THE DEPOSIT OF THE ARTICLE OR ITS DELIVERY WHICH
IS FORBIDDEN BUT THE USE OF THE TRANSPORTATION FACILITIES.  THE SENDING
OR BRINGING OF THE DENTURES IS NOT DENOUNCED AS A SUBSTANTIVE CRIME
APART FROM THE USE OF MAILS OR INSTRUMENTALITIES TO ACCOMPLISH THE
PURPOSE.  THE CRIME CONSISTS OF THE USE OF THE MAILS TO SEND A
PROHIBITED DENTURE "INTO" OR BRING IT "INTO" ANOTHER STATE.  THE
LANGUAGE LEADS US TO THE CONCLUSION THAT A USE FOR THE PROHIBITED
PURPOSE OCCURS AT WHATEVER PLACE THE PROSCRIBED DENTURE IS HANDLED BY
THE MAILS OR AN INSTRUMENTALITY OF COMMERCE. 

THE "USE" FOR THE "PURPOSE" RESULTS IN A CONTINUOUS OFFENSE N2. 
SINCE THE OFFENSE IS COMMITTED WHEREVER THE MAILS OR THE
INSTRUMENTALITIES OF INTERSTATE COMMERCE ARE USED FOR THE PURPOSE OF
SENDING OR BRINGING THE DENTURE INTO A STATE CONTRARY TO THE STATUTE
AND THE ACT HAS NO PROVISION OTHERWISE LIMITING THE PLACE OF TRIAL, THE
VENUE IS AT WHATEVER PLACE THESE ACTS ARE COMMITTED.  ONE OF THE PLACES
IN THE PRESENT CASE IS DELAWARE "INTO" WHICH THE DENTURES WERE BROUGHT
BY APPELLEES' USE OF THE MAILS IN THAT STATE.  FN3  IF THIS ANALYSIS IS
CORRECT, THERE WAS NO OCCASION FOR CONGRESS TO FOLLOW THE SUGGESTION AS
TO VENUE OF THE POSTMASTER GENERAL TO WHICH THE COURT REFERS. 

THE TITLE OF THE ACT INDICATES THAT IT IS DIRECTED AT PRACTICES
THOUGHT TO LEAD TO DENTAL DISORDERS AND "TO PREVENT THE CIRCUMVENTION
OF CERTAIN STATE OR TERRITORIAL LAWS REGULATING THE PRACTICE OF
DENTISTRY."  56 STAT. 1087.  THESE STATE LAWS REGULATED THE FABRICATION
OF PROSTHETIC DENTAL APPLIANCES.  FROM THE HEARINGS  FN4  IT IS CLEAR
THAT THE PURPOSE OF CONGRESS WAS TO PROTECT THE PUBLIC AGAINST THE
EVILS OF ILL-FITTING DENTAL APPLIANCES BY RESTRICTING INTERSTATE
COMMERCE TO DENTAL APPLIANCES WHICH WERE APPROVED BY LICENSED
PRACTITIONERS OF THE STATE INTO WHICH THE APPLIANCES WERE BROUGHT. 
SUCH WAS DECLARED TO BE ITS PURPOSE BY THE REPORT OF THE SENATE
COMMITTEE.  S. REP. NO. 1779, 77TH CONG., 2D SESS., P. 1.  AS THE
INJURY WOULD OCCUR NORMALLY AT THE PLACE OF DELIVERY AND AS THE ACT IS
DESIGNED TO PROTECT ONLY THOSE STATES WHICH HAVE LAWS REGULATING THE
FURNISHING OF APPLIANCES BY UNLICENSED PRACTITIONERS, CONGRESS WOULD
NATURALLY ENACT LEGISLATION WHICH MIGHT PUNISH VIOLATIONS IN THE STATE
OF DELIVERY.  THE PROSECUTING OFFICERS OF THAT STATE WOULD BE MOST
INTERESTED IN ENFORCEMENT AND WOULD BEST UNDERSTAND THE SCOPE OF THE
LAWS OF THE STATE OF DELIVERY.  CONGRESS WOULD NOT WISH TO LEAVE IMMUNE
SHIPMENTS FROM FOREIGN COUNTRIES.  CF. UNITED STATES V. FREEMAN, 239
U.S. 117. 

FN1  CONSTITUTION OF THE UNITED STATES, ART. III, SEC. 2, CL. 3;
SIXTH AMENDMENT.  ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, 73
77; SALINGER V. LOISEL, 265 U.S. 224, 232-235; HORNER V. UNITED STATES,
NO. 1, 143 U.S. 207, 213; IN RE PALLISER, 136 U.S. 257, 265; HYDE V.
SHINE, 199 U.S. 62, 78; HAAS V. HENKEL, 216 U.S. 462, 473. 

FN2  CF. UNITED STATES V. KISSEL, 218 U.S. 601; HYDE V. UNITED
STATES, 225 U.S. 347, 360-67; UNITED STATES V. SOCONY-VACUUM OIL CO.,
310 U.S. 150, 250; IN RE SNOW, 120 U.S. 274; CLARK & MARSHALL, CRIMES
(4TH ED.), SEC. 504(D); WHARTON CRIMINAL LAW (12TH ED.), SEC. 338.  SEE
ALSO IN RE RICHTER, 100 F. 295, 298; MORRIS V. UNITED STATES, 229 F.
516, 521. 

FN3  CF. ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, 72-74;
UNITED STATES V. MIDSTATE CO., 306 U.S. 161, 165; AND SEE UNITED STATES
V. LOMBARDO, 241 U.S. 73, 77; UNITED STATES V. FREEMAN, 239 U.S. 117,
AND IN RE PALLISER, 136 U.S. 257.  THE LATTER TWO CASES ILLUSTRATE THE
DIFFERENCE BETWEEN A CONTINUOUS OFFENSE AND ONE BEGUN IN ONE STATE AND
COMPLETED IN ANOTHER.  COMPARE JUDICIAL CODE, SEC. 42, 28 U.S.C. SEC.
103, WITH SEC. 3237 OF H.R. 5450, 78TH CONG., 2D SESS. 

FN4  HEARING BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE, FEBRUARY 3 AND 4, 1942, 77TH CONG., 2D
SESS., ON H.R. 5674; HEARING BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON INTERSTATE COMMERCE, JULY 15, 16, 17 AND 20, 1942, 77TH
CONG., 2D SESS., ON S. 2371. 

THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN
IN THIS DISSENT. 
..END :
























EX PARTE ENDO, 323 U.S. 283 


NO. 70.  ARGUED OCTOBER 12, 1944.  - DECIDED DECEMBER 18, 1944. 


1.  THE WAR RELOCATION AUTHORITY, WHOSE POWER OVER PERSONS EVACUATED
FROM MILITARY AREAS DERIVES FROM EXECUTIVE ORDER NO. 9066, WHICH WAS
RATIFIED AND CONFIRMED BY THE ACT OF MARCH 21, 1942, WAS WITHOUT
AUTHORITY, EXPRESS OR IMPLIED, TO SUBJECT TO ITS LEAVE PROCEDURE A
CONCEDEDLY LOYAL AND LAW-ABIDING CITIZEN OF THE UNITED STATES.  P.
297. 

2.  WARTIME MEASURES ARE TO BE INTERPRETED AS INTENDING THE GREATEST
POSSIBLE ACCOMMODATION BETWEEN THE CONSTITUTIONAL LIBERTIES OF THE
CITIZEN AND THE EXIGENCIES OF WAR.  P. 300. 

3.  THE SOLE PURPOSE OF THE ACT OF MARCH 21, 1942 AND EXECUTIVE
ORDERS NOS. 9066 AND 9102 WAS THE PROTECTION OF THE WAR EFFORT AGAINST
ESPIONAGE AND SABOTAGE.  P. 300. 

4.  POWER TO DETAIN A CONCEDEDLY LOYAL CITIZEN MAY NOT BE IMPLIED
FROM THE POWER TO PROTECT THE WAR EFFORT AGAINST ESPIONAGE AND
SABOTAGE.  P. 302. 

5.  THE POWER TO DETAIN A CONCEDEDLY LOYAL CITIZEN OR TO GRANT HIM A
CONDITIONAL RELEASE CAN NOT BE IMPLIED AS A USEFUL OR CONVENIENT STEP
IN THE EVACUATION PROGRAM.  P. 302. 

6.  THE ACT OF MARCH 21, 1942 AND EXECUTIVE ORDERS NOS. 9066 AND 9102
AFFORD NO BASIS FOR KEEPING LOYAL EVACUEES OF JAPANESE ANCESTRY IN
CUSTODY ON THE GROUND OF COMMUNITY HOSTILITY.  P. 302. 

7.  THE DISTRICT COURT HAVING ACQUIRED JURISDICTION UPON AN
APPLICATION FOR HABEAS CORPUS, AND THERE BEING WITHIN THE DISTRICT ONE
RESPONSIBLE FOR THE DETENTION AND WHO WOULD BE AN APPROPRIATE
RESPONDENT, THE CAUSE WAS NOT RENDERED MOOT BY THE REMOVAL OF THE
APPLICANT TO ANOTHER CIRCUIT PENDING APPEAL FROM A DENIAL OF THE WRIT,
AND THE DISTRICT COURT HAS JURISDICTION TO ISSUE THE WRIT.  UNITED
STATES V. CRYSTAL, 319 U.S. 755, DISTINGUISHED.  P. 305. 

EX PARTE MITSUYE ENDO. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

ON APPEAL FROM AN ORDER OF THE DISTRICT COURT DENYING A WRIT OF
HABEAS CORPUS, THE CIRCUIT COURT OF APPEALS CERTIFIED QUESTIONS TO THIS
COURT, WHICH, UNDER JUDICIAL CODE SEC. 239, ORDERED THE ENTIRE RECORD
SENT UP. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE COMES HERE ON A CERTIFICATE OF THE COURT OF APPEALS FOR THE
NINTH CIRCUIT, CERTIFYING TO US QUESTIONS OF LAW UPON WHICH IT DESIRES
INSTRUCTIONS FOR THE DECISION OF THE CASE.  JUDICIAL CODE SEC. 239, 28
U.S.C. SEC. 346.  ACTING UNDER THAT SECTION WE ORDERED THE ENTIRE
RECORD TO BE CERTIFIED TO THIS COURT SO THAT WE MIGHT PROCEED TO A
DECISION, AS IF THE CASE HAD BEEN BROUGHT HERE BY APPEAL. 

MITSUYE ENDO, HEREINAFTER DESIGNATED AS THE APPELLANT, IS AN AMERICAN
CITIZEN OF JAPANESE ANCESTRY.  SHE WAS EVACUATED FROM SACRAMENTO,
CALIFORNIA, IN 1942, PURSUANT TO CERTAIN MILITARY ORDERS WHICH WE WILL
PRESENTLY DISCUSS, AND WAS REMOVED TO THE TULE LAKE WAR RELOCATION
CENTER LOCATED AT NEWELL, MODOC COUNTY, CALIFORNIA.  IN JULY, 1942, SHE
FILED A PETITION FOR A WRIT OF HABEAS CORPUS IN THE DISTRICT COURT OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, ASKING THAT
SHE BE DISCHARGED AND RESTORED TO LIBERTY.  THAT PETITION WAS DENIED BY
THE DISTRICT COURT IN JULY, 1943, AND AN APPEAL WAS PERFECTED TO THE
CIRCUIT COURT OF APPEALS IN AUGUST, 1943.  SHORTLY THEREAFTER APPELLANT
WAS TRANSFERRED FROM THE TULE LAKE RELOCATION CENTER TO THE CENTRAL
UTAH RELOCATION CENTER LOCATED AT TOPAZ, UTAH, WHERE SHE IS PRESENTLY
DETAINED.  THE CERTIFICATE OF QUESTIONS OF LAW WAS FILED HERE ON APRIL
22, 1944, AND ON MAY 8, 1944, WE ORDERED THE ENTIRE RECORD TO BE
CERTIFIED TO THIS COURT.  IT DOES NOT APPEAR THAT ANY RESPONDENT WAS
EVER SERVED WITH PROCESS OR APPEARED IN THE PROCEEDINGS.  BUT THE
UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF CALIFORNIA ARGUED
BEFORE THE DISTRICT COURT THAT THE PETITION SHOULD NOT BE GRANTED.  AND
THE SOLICITOR GENERAL ARGUED THE CASE HERE. 

THE HISTORY OF THE EVACUATION OF JAPANESE ALIENS AND CITIZENS OF
JAPANESE ANCESTRY FROM THE PACIFIC COASTAL REGIONS, FOLLOWING THE
JAPANESE ATTACK ON OUR NAVAL BASE AT PEARL HARBOR ON DECEMBER 7, 1941,
AND THE DECLARATION OF WAR AGAINST JAPAN ON DECEMBER 8, 1941(55 STAT.
795), HAS BEEN REVIEWED IN HIRABAYASHI V. UNITED STATES, 320 U.S. 81. 
IT NEED BE ONLY BRIEFLY RECAPITULATED HERE.  ON FEBRUARY 19, 1942, THE
PRESIDENT PROMULGATED EXECUTIVE ORDER NO. 9066, 7 FED. REG. 1407.  IT
RECITED THAT "THE SUCCESSFUL PROSECUTION OF THE WAR REQUIRES EVERY
POSSIBLE PROTECTION AGAINST ESPIONAGE AND AGAINST SABOTAGE TO NATIONAL
DEFENSE MATERIAL, NATIONAL-DEFENSE PREMISES, AND NATIONAL-DEFENSE
UTILITIES, AS DEFINED IN SECTION 4, ACT OF APRIL 20, 1918, 40 STAT.
533, AS AMENDED BY THE ACT OF NOVEMBER 30, 1940, 54 STAT. 1220, AND THE
ACT OF AUGUST 21, 1941, 55 STAT. 655(U.S.C., TITLE 50, SEC. 104)."  AND
IT AUTHORIZED AND DIRECTED 

"THE SECRETARY OF WAR, AND THE MILITARY COMMANDERS WHOM HE MAY FROM
TIME TO TIME DESIGNATE, WHENEVER HE OR ANY DESIGNATED COMMANDER DEEMS
SUCH ACTION NECESSARY OR DESIRABLE, TO PRESCRIBE MILITARY AREAS IN SUCH
PLACES AND OF SUCH EXTENT AS HE OR THE APPROPRIATE MILITARY COMMANDER
MAY DETERMINE, FROM WHICH ANY OR ALL PERSONS MAY BE EXCLUDED, AND WITH
RESPECT TO WHICH, THE RIGHT OF ANY PERSON TO ENTER, REMAIN IN, OR LEAVE
SHALL BE SUBJECT TO WHATEVER RESTRICTIONS THE SECRETARY OF WAR OR THE
APPROPRIATE MILITARY COMMANDER MAY IMPOSE IN HIS DISCRETION.  THE
SECRETARY OF WAR IS HEREBY AUTHORIZED TO PROVIDE FOR RESIDENTS OF ANY
SUCH AREA WHO ARE EXCLUDED THEREFROM, SUCH TRANSPORTATION, FOOD,
SHELTER, AND OTHER ACCOMMODATIONS AS MAY BE NECESSARY, IN THE JUDGMENT
OF THE SECRETARY OF WAR OR THE SAID MILITARY COMMANDER, AND UNTIL OTHER
ARRANGEMENTS ARE MADE, TO ACCOMPLISH THE PURPOSE OF THIS ORDER." 

LT. GENERAL J.L. DE WITT, MILITARY COMMANDER OF THE WESTERN DEFENSE
COMMAND, WAS DESIGNATED TO CARRY OUT THE DUTIES PRESCRIBED BY THAT
EXECUTIVE ORDER.  ON MARCH 2, 1942, HE PROMULGATED PUBLIC PROCLAMATION
NO. 1(7 FED. REG. 2320) WHICH RECITED THAT THE ENTIRE PACIFIC COAST OF
THE UNITED STATES 

"BY ITS GEOGRAPHICAL LOCATION IS PARTICULARLY SUBJECT TO ATTACK, TO
ATTEMPTED INVASION BY THE ARMED FORCES OF NATIONS WITH WHICH THE UNITED
STATES IS NOW AT WAR, AND, IN CONNECTION THEREWITH, IS SUBJECT TO
ESPIONAGE AND ACTS OF SABOTAGE, THEREBY REQUIRING THE ADOPTION OF
MILITARY MEASURES NECESSARY TO ESTABLISH SAFEGUARDS AGAINST SUCH ENEMY
OPERATIONS." 

IT DESIGNATED CERTAIN MILITARY AREAS AND ZONES IN THE WESTERN DEFENSE
COMMAND AND ANNOUNCED THAT CERTAIN PERSONS MIGHT SUBSEQUENTLY BE
EXCLUDED FROM THESE AREAS.  ON MARCH 16, 1942, GENERAL DE WITT
PROMULGATED PUBLIC PROCLAMATION NO. 2 WHICH CONTAINED SIMILAR RECITALS
AND DESIGNATED FURTHER MILITARY AREAS AND ZONES.  7 FED. REG. 2405. 

ON MARCH 18, 1942, THE PRESIDENT PROMULGATED EXECUTIVE ORDER NO. 9102
WHICH ESTABLISHED IN THE OFFICE FOR EMERGENCY MANAGEMENT OF THE
EXECUTIVE OFFICE OF THE PRESIDENT THE WAR RELOCATION AUTHORITY.  7 FED.
REG. 2165.  IT RECITED THAT IT WAS MADE "IN ORDER TO PROVIDE FOR THE
REMOVAL FROM DESIGNATED AREAS OF PERSONS WHOSE REMOVAL IS NECESSARY IN
THE INTERESTS OF NATIONAL SECURITY."  IT PROVIDED FOR A DIRECTOR AND
AUTHORIZED AND DIRECTED HIM TO "FORMULATE AND EFFECTUATE A PROGRAM FOR
THE REMOVAL, FROM THE AREAS DESIGNATED FROM TIME TO TIME BY THE
SECRETARY OF WAR OR APPROPRIATE MILITARY COMMANDER UNDER THE AUTHORITY
OF EXECUTIVE ORDER NO. 9066 OF FEBRUARY 19, 1942, OF THE PERSONS OR
CLASSES OF PERSONS DESIGNATED UNDER SUCH EXECUTIVE ORDER, AND FOR THEIR
RELOCATION, MAINTENANCE, AND SUPERVISION."  THE DIRECTOR WAS GIVEN THE
AUTHORITY, AMONG OTHER THINGS, TO PRESCRIBE REGULATIONS NECESSARY OR
DESIRABLE TO PROMOTE EFFECTIVE EXECUTION OF THE PROGRAM. 

CONGRESS SHORTLY ENACTED LEGISLATION WHICH, AS WE POINTED OUT IN
HIRABAYASHI V. UNITED STATES, SUPRA, RATIFIED AND CONFIRMED EXECUTIVE
ORDER NO. 9066.  SEE 320 U.S. PP. 87-91.  IT DID SO BY THE ACT OF MARCH
21, 1942(56 STAT. 173) WHICH PROVIDED: 

"THAT WHOEVER SHALL ENTER, REMAIN IN, LEAVE, OR COMMIT ANY ACT IN ANY
MILITARY AREA OR MILITARY ZONE PRESCRIBED, UNDER THE AUTHORITY OF AN
EXECUTIVE ORDER OF THE PRESIDENT, BY THE SECRETARY OF WAR, OR BY ANY
MILITARY COMMANDER DESIGNATED BY THE SECRETARY OF WAR, CONTRARY TO THE
RESTRICTIONS APPLICABLE TO ANY SUCH AREA OR ZONE OR CONTRARY TO THE
ORDER OF THE SECRETARY OF WAR OR ANY SUCH MILITARY COMMANDER, SHALL, IF
IT APPEARS THAT HE KNEW OR SHOULD HAVE KNOWN OF THE EXISTENCE AND
EXTENT OF THE RESTRICTIONS OR ORDER AND THAT HIS ACT WAS IN VIOLATION
THEREOF, BE GUILTY OF A MISDEMEANOR AND UPON CONVICTION SHALL BE LIABLE
TO A FINE OF NOT TO EXCEED $5,000 OR TO IMPRISONMENT FOR NOT MORE THAN
ONE YEAR, OR BOTH, FOR EACH OFFENSE." 

BEGINNING ON MARCH 24, 1942, A SERIES OF 108 CIVILIAN EXCLUSION
ORDERS  FN1  WERE ISSUED BY GENERAL DE WITT PURSUANT TO PUBLIC
PROCLAMATION NOS. 1 AND 2.  APPELLANT'S EXCLUSION WAS EFFECTED BY
CIVILIAN EXCLUSION ORDER NO. 52, DATED MAY 7, 1942.  IT ORDERED THAT
"ALL PERSONS OF JAPANESE ANCESTRY, BOTH ALIEN AND NON-ALIEN" BE
EXCLUDED FROM SACRAMENTO, CALIFORNIA,  FN2  BEGINNING AT NOON ON MAY
16, 1942.  APPELLANT WAS EVACUATED TO THE SACRAMENTO ASSEMBLY CENTER ON
MAY 15, 1942, AND WAS TRANSFERRED FROM THERE TO THE TULE LAKE
RELOCATION CENTER ON JUNE 19, 1942. 

ON MAY 19, 1942, GENERAL DE WITT PROMULGATED CIVILIAN RESTRICTIVE
ORDER NO. 1(8 FED. REG. 982) AND ON JUNE 27, 1942, PUBLIC PROCLAMATION
NO. 8.  7 FED. REG. 8346.  THESE PROHIBITED EVACUEES FROM LEAVING
ASSEMBLY CENTERS OR RELOCATION CENTERS EXCEPT PURSUANT TO AN
AUTHORIZATION FROM GENERAL DE WITT'S HEADQUARTERS.  PUBLIC PROCLAMATION
NO. 8 RECITED THAT "THE PRESENT SITUATION WITHIN THESE MILITARY AREAS
REQUIRES AS A MATTER OF MILITARY NECESSITY" THAT THE EVACUEES BE
REMOVED TO "RELOCATION CENTERS FOR THEIR RELOCATION, MAINTENANCE AND
SUPERVISION," THAT THOSE RELOCATION CENTERS BE DESIGNATED AS WAR
RELOCATION PROJECT AREAS, AND THAT RESTRICTIONS ON THE RIGHTS OF THE
EVACUEES TO ENTER, REMAIN IN, OR LEAVE SUCH AREAS BE PROMULGATED. 
THESE RESTRICTIONS WERE APPLICABLE TO THE RELOCATION CENTERS WITHIN THE
WESTERN DEFENSE COMMAND  FN3 AND INCLUDED BOTH OF THOSE IN WHICH
APPELLANT HAS BEEN CONFINED - TULE LAKE RELOCATION CENTER AT NEWELL,
CALIFORNIA AND CENTRAL UTAH RELOCATION CENTER AT TOPAZ, UTAH.  AND
PUBLIC PROCLAMATION NO. 8 PURPORTED TO MAKE ANY PERSON WHO WAS SUBJECT
TO ITS PROVISIONS AND WHO FAILED TO CONFORM TO IT LIABLE TO THE
PENALTIES PRESCRIBED BY THE ACT OF MARCH 21, 1942. 

BY LETTER OF AUGUST 11, 1942, GENERAL DE WITT AUTHORIZED THE WAR
RELOCATION AUTHORITY  FN4  TO ISSUE PERMITS FOR PERSONS TO LEAVE THESE
AREAS.  BY VIRTUE OF THAT DELEGATION  FN5  AND THE AUTHORITY CONFERRED
BY EXECUTIVE ORDER NO. 9102, THE WAR RELOCATION AUTHORITY WAS GIVEN
CONTROL OVER THE INGRESS AND EGRESS OF EVACUEES FROM THE RELOCATION
CENTERS WHERE MITSUYE ENDO WAS CONFINED.  FN6 

THE PROGRAM OF THE WAR RELOCATION AUTHORITY IS SAID TO HAVE THREE
MAIN FEATURES:  (1) THE MAINTENANCE OF RELOCATION CENTERS AS INTERIM
PLACES OF RESIDENCE FOR EVACUEES; (2) THE SEGREGATION OF LOYAL FROM
DISLOYAL EVACUEES; (3) THE CONTINUED DETENTION OF THE DISLOYAL AND SO
FAR AS POSSIBLE THE RELOCATION OF THE LOYAL IN SELECTED COMMUNITIES. 
FN7  IN CONNECTION WITH THE LATTER PHASE OF ITS WORK THE WAR RELOCATION
AUTHORITY ESTABLISHED A PROCEDURE FOR OBTAINING LEAVE FROM RELOCATION
CENTERS.  THAT PROCEDURE, SO FAR AS INDEFINITE LEAVE  FN8  IS
CONCERNED, PRESENTLY PROVIDES  FN9  AS FOLLOWS: 

APPLICATION FOR LEAVE CLEARANCE IS REQUIRED.  AN INVESTIGATION OF THE
APPLICANT IS MADE FOR THE PURPOSE OF ASCERTAINING "THE PROBABLE EFFECT
UPON THE WAR PROGRAM AND UPON THE PUBLIC PEACE AND SECURITY OF ISSUING
INDEFINITE LEAVE" TO THE APPLICANT.  FN10  THE GRANT OF LEAVE CLEARANCE
DOES NOT AUTHORIZE DEPARTURE FROM THE RELOCATION CENTER.  APPLICATION
FOR INDEFINITE LEAVE MUST ALSO BE MADE.  INDEFINITE LEAVE MAY BE
GRANTED UNDER 14 SPECIFIED CONDITIONS.  FN11  FOR EXAMPLE, IT MAY BE
GRANTED (1) WHERE THE APPLICANT PROPOSES TO ACCEPT AN EMPLOYMENT OFFER
OR AN OFFER OF SUPPORT THAT HAS BEEN INVESTIGATED AND APPROVED BY THE
AUTHORITY; OR (2) WHERE THE APPLICANT DOES NOT INTEND TO WORK BUT HAS
"ADEQUATE FINANCIAL RESOURCES TO TAKE CARE OF HIMSELF" AND A RELOCATION
OFFICER HAS INVESTIGATED AND APPROVED "PUBLIC SENTIMENT AT HIS PROPOSED
DESTINATION," OR (3) WHERE THE APPLICANT HAS MADE ARRANGEMENTS TO LIVE
AT A HOTEL OR IN A PRIVATE HOME APPROVED BY A RELOCATION OFFICER WHILE
ARRANGING FOR EMPLOYMENT; OR (4) WHERE THE APPLICANT PROPOSES TO ACCEPT
EMPLOYMENT BY A FEDERAL OR LOCAL GOVERNMENTAL AGENCY; OR (5) WHERE THE
APPLICANT IS GOING TO LIVE WITH DESIGNATED CLASSES OF RELATIVES. 

BUT EVEN IF AN APPLICANT MEETS THOSE REQUIREMENTS, NO LEAVE WILL
ISSUE WHEN THE PROPOSED PLACE OF RESIDENCE OR EMPLOYMENT IS WITHIN A
LOCALITY WHERE IT HAS BEEN ASCERTAINED THAT "COMMUNITY SENTIMENT IS
UNFAVORABLE" OR WHEN THE APPLICANT PLANS TO GO TO AN AREA WHICH HAS
BEEN CLOSED BY THE AUTHORITY TO THE ISSUANCE OF INDEFINITE LEAVE.  FN12
NOR WILL SUCH LEAVE ISSUE IF THE AREA WHERE THE APPLICANT PLANS TO
RESIDE OR WORK IS ONE WHICH HAS NOT BEEN CLEARED FOR RELOCATION.  FN13
MOREOVER, THE APPLICANT AGREES TO GIVE THE AUTHORITY PROMPT NOTICE OF
ANY CHANGE OF EMPLOYMENT OR RESIDENCE.  AND THE INDEFINITE LEAVE WHICH
IS GRANTED DOES NOT PERMIT ENTRY INTO A PROHIBITED MILITARY AREA,
INCLUDING THOSE FROM WHICH THESE PEOPLE WERE EVACUATED.  FN14 

MITSUYE ENDO MADE APPLICATION FOR LEAVE CLEARANCE ON FEBRUARY 19,
1943, AFTER THE PETITION WAS FILED IN THE DISTRICT COURT.  LEAVE
CLEARANCE  FN15  WAS GRANTED HER ON AUGUST 16, 1943.  BUT SHE MADE NO
APPLICATION FOR INDEFINITE LEAVE.  FN16 

HER PETITION FOR A WRIT OF HABEAS CORPUS ALLEGES THAT SHE IS A LOYAL
AND LAW-ABIDING CITIZEN OF THE UNITED STATES, THAT NO CHARGE HAS BEEN
MADE AGAINST HER, THAT SHE IS BEING UNLAWFULLY DETAINED, AND THAT SHE
IS CONFINED IN THE RELOCATION CENTER UNDER ARMED GUARD AND HELD THERE
AGAINST HER WILL. 

IT IS CONCEDED BY THE DEPARTMENT OF JUSTICE AND BY THE WAR RELOCATION
AUTHORITY THAT APPELLANT IS A LOYAL AND LAW-ABIDING CITIZEN.  THEY MAKE
NO CLAIM THAT SHE IS DETAINED ON ANY CHARGE OR THAT SHE IS EVEN
SUSPECTED OF DISLOYALTY.  MOREOVER, THEY DO NOT CONTEND THAT SHE MAY BE
HELD ANY LONGER IN THE RELOCATION CENTER.  THEY CONCEDE THAT IT IS
BEYOND THE POWER OF THE WAR RELOCATION AUTHORITY TO DETAIN CITIZENS
AGAINST WHOM NO CHARGES OF DISLOYALTY OR SUBVERSIVENESS HAVE BEEN MADE
FOR A PERIOD LONGER THAN THAT NECESSARY TO SEPARATE THE LOYAL FROM THE
DISLOYAL AND TO PROVIDE THE NECESSARY GUIDANCE FOR RELOCATION.  BUT
THEY MAINTAIN THAT DETENTION FOR AN ADDITIONAL PERIOD AFTER LEAVE
CLEARANCE HAS BEEN GRANTED IS AN ESSENTIAL STEP IN THE EVACUATION
PROGRAM.  RELIANCE FOR THAT CONCLUSION IS PLACED ON THE FOLLOWING
CIRCUMSTANCES. 

WHEN COMPULSORY EVACUATION FROM THE WEST COAST WAS DECIDED UPON,
PLANS FOR TAKING CARE OF THE EVACUEES AFTER THEIR DETENTION IN THE
ASSEMBLY CENTERS, TO WHICH THEY WERE INITIALLY REMOVED, REMAINED TO BE
DETERMINED.  ON APRIL 7, 1942, THE DIRECTOR OF THE AUTHORITY HELD A
CONFERENCE IN SALT LAKE CITY WITH VARIOUS STATE AND FEDERAL OFFICIALS
INCLUDING THE GOVERNORS OF THE INTERMOUNTAIN STATES.  "STRONG
OPPOSITION WAS EXPRESSED TO ANY TYPE OF UNSUPERVISED RELOCATION AND
SOME OF THE GOVERNORS REFUSED TO BE RESPONSIBLE FOR MAINTENANCE OF LAW
AND ORDER UNLESS EVACUEES BROUGHT INTO THEIR STATES WERE KEPT UNDER
CONSTANT MILITARY SURVEILLANCE."  FN17 SEN. DOC. NO. 96, SUPRA, NOTE 7,
P. 4.  AS STATED BY GENERAL DE WITT IN HIS REPORT TO THE CHIEF OF
STAFF:   "ESSENTIALLY, MILITARY NECESSITY REQUIRED ONLY THAT THE
JAPANESE POPULATION BE REMOVED FROM THE COASTAL AREA AND DISPERSED IN
THE INTERIOR, WHERE THE DANGER OF ACTION IN CONCERT DURING ANY
ATTEMPTED ENEMY RAIDS ALONG THE COAST, OR IN ADVANCE THEREOF AS
PREPARATION FOR A FULL SCALE ATTACK, WOULD BE ELIMINATED.  THAT THE
EVACUATION PROGRAM NECESSARILY AND ULTIMATELY DEVELOPED INTO ONE OF
COMPLETE FEDERAL SUPERVISION, WAS DUE PRIMARILY TO THE FACT THAT THE
INTERIOR STATES WOULD NOT ACCEPT AN UNCONTROLLED JAPANESE MIGRATION." 

FINAL REPORT, SUPRA, NOTE 2, PP. 43-44.  THE AUTHORITY THEREUPON
ABANDONED PLANS FOR ASSISTING GROUPS OF EVACUEES IN PRIVATE
COLONIZATION AND TEMPORARILY PUT TO ONE SIDE PLANS FOR AIDING THE
EVACUEES IN OBTAINING PRIVATE EMPLOYMENT.  FN18  AS AN ALTERNATIVE THE
AUTHORITY "CONCENTRATED ON ESTABLISHMENT OF GOVERNMENT-OPERATED CENTERS
WITH SUFFICIENT CAPACITY AND FACILITIES TO ACCOMMODATE THE ENTIRE
EVACUEE POPULATION."  SEN. DOC. NO. 96, SUPRA, NOTE 7, P. 4. 
ACCORDINGLY, IT UNDERTOOK TO CARE FOR THE BASIC NEEDS OF THESE PEOPLE
IN THE RELOCATION CENTERS, TO PROMOTE AS RAPIDLY AS POSSIBLE THE
PERMANENT RESETTLEMENT OF AS MANY AS POSSIBLE IN NORMAL COMMUNITIES,
AND TO PROVIDE INDEFINITELY FOR THOSE LEFT AT THE RELOCATION CENTERS. 
AN EFFORT WAS MADE TO SEGREGATE THE LOYAL EVACUEES FROM THE OTHERS. 
THE LEAVE PROGRAM WHICH WE HAVE DISCUSSED WAS PUT INTO OPERATION AND
THE RESETTLEMENT PROGRAM COMMENCED.  FN19 

IT IS ARGUED THAT SUCH A PLANNED AND ORDERLY RELOCATION WAS ESSENTIAL
TO THE SUCCESS OF THE EVACUATION PROGRAM; THAT BUT FOR SUCH SUPERVISION
THERE MIGHT HAVE BEEN A DANGEROUSLY DISORDERLY MIGRATION OF UNWANTED
PEOPLE TO UNPREPARED COMMUNITIES; THAT UNSUPERVISED EVACUATION MIGHT
HAVE RESULTED IN HARDSHIP AND DISORDER; THAT THE SUCCESS OF THE
EVACUATION PROGRAM WAS THOUGHT TO REQUIRE THE KNOWLEDGE THAT THE
FEDERAL GOVERNMENT WAS MAINTAINING CONTROL OVER THE EVACUATED
POPULATION EXCEPT AS THE RELEASE OF INDIVIDUALS COULD BE EFFECTED
CONSISTENTLY WITH THEIR OWN PEACE AND WELL-BEING AND THAT OF THE
NATION; THAT ALTHOUGH COMMUNITY HOSTILITY TOWARDS THE EVACUEES HAS
DIMINISHED, IT HAS NOT DISAPPEARED AND THE CONTINUING CONTROL OF THE
AUTHORITY OVER THE RELOCATION PROCESS IS ESSENTIAL TO THE SUCCESS OF
THE EVACUATION PROGRAM.  IT IS ARGUED THAT SUPERVISED RELOCATION, AS
THE CHOSEN METHOD OF TERMINATING THE EVACUATION, IS THE FINAL STEP IN
THE ENTIRE PROCESS AND IS A CONSEQUENCE OF THE FIRST STEP TAKEN.  IT IS
CONCEDED THAT APPELLANT'S DETENTION PENDING COMPLIANCE WITH THE LEAVE
REGULATIONS IS NOT DIRECTLY CONNECTED WITH THE PREVENTION OF ESPIONAGE
AND SABOTAGE AT THE PRESENT TIME.  BUT IT IS ARGUED THAT EXECUTIVE
ORDER NO. 9102 CONFERS POWER TO MAKE REGULATIONS NECESSARY AND PROPER
FOR CONTROLLING SITUATIONS CREATED BY THE EXERCISE OF THE POWERS
EXPRESSLY CONFERRED FOR PROTECTION AGAINST ESPIONAGE AND SABOTAGE.  THE
LEAVE REGULATIONS ARE SAID TO FALL WITHIN THAT CATEGORY. 

FIRST.  WE ARE OF THE VIEW THAT MITSUYE ENDO SHOULD BE GIVEN HER
LIBERTY.  IN REACHING THAT CONCLUSION WE DO NOT COME TO THE UNDERLYING
CONSTITUTIONAL ISSUES WHICH HAVE BEEN ARGUED.  FOR WE CONCLUDE THAT,
WHATEVER POWER THE WAR RELOCATION AUTHORITY MAY HAVE TO DETAIN OTHER
CLASSES OF CITIZENS, IT HAS NO AUTHORITY TO SUBJECT CITIZENS WHO ARE
CONCEDEDLY LOYAL TO ITS LEAVE PROCEDURE. 

IT SHOULD BE NOTED AT THE OUTSET THAT WE DO NOT HAVE HERE A QUESTION
SUCH AS WAS PRESENTED IN EX PARTE MILLIGAN, 4 WALL.  2, OR IN EX PARTE
QUIRIN, 317 U.S. 1, WHERE THE JURISDICTION OF MILITARY TRIBUNALS TO TRY
PERSONS ACCORDING TO THE LAW OF WAR WAS CHALLENGED IN HABEAS CORPUS
PROCEEDINGS.  MITSUYE ENDO IS DETAINED BY A CIVILIAN AGENCY, THE WAR
RELOCATION AUTHORITY, NOT BY THE MILITARY.  MOREOVER, THE EVACUATION
PROGRAM WAS NOT LEFT EXCLUSIVELY TO THE MILITARY; THE AUTHORITY WAS
GIVEN A LARGE MEASURE OF RESPONSIBILITY FOR ITS EXECUTION AND CONGRESS
MADE ITS ENFORCEMENT SUBJECT TO CIVIL PENALTIES BY THE ACT OF MARCH 21,
1942.  ACCORDINGLY, NO QUESTIONS OF MILITARY LAW ARE INVOLVED. 

SUCH POWER OF DETENTION AS THE AUTHORITY HAS STEMS FROM EXECUTIVE
ORDER NO. 9066.  THAT ORDER IS THE SOURCE OF THE AUTHORITY  FN20
DELEGATED BY GENERAL DE WITT IN HIS LETTER OF AUGUST 11, 1942.  AND
EXECUTIVE ORDER NO. 9102 WHICH CREATED THE WAR RELOCATION AUTHORITY
PURPORTED TO DO NO MORE THAN TO IMPLEMENT THE PROGRAM AUTHORIZED BY
EXECUTIVE ORDER NO. 9066. 

WE APPROACH THE CONSTRUCTION OF EXECUTIVE ORDER NO. 9066 AS WE WOULD
APPROACH THE CONSTRUCTION OF LEGISLATION IN THIS FIELD.  THAT EXECUTIVE
ORDER MUST INDEED BE CONSIDERED ALONG WITH THE ACT OF MARCH 21, 1942,
WHICH RATIFIED AND CONFIRMED IT (HIRABAYASHI V. UNITED STATES, SUPRA,
PP. 87-91) AS THE ORDER AND THE STATUTE TOGETHER LAID SUCH BASIS AS
THERE IS FOR PARTICIPATION BY CIVIL AGENCIES OF THE FEDERAL GOVERNMENT
IN THE EVACUATION PROGRAM.  BROAD POWERS FREQUENTLY GRANTED TO THE
PRESIDENT OR OTHER EXECUTIVE OFFICERS BY CONGRESS SO THAT THEY MAY DEAL
WITH THE EXIGENCIES OF WARTIME PROBLEMS HAVE BEEN SUSTAINED.  FN21  AND
THE CONSTITUTION WHEN IT COMMITTED TO THE EXECUTIVE AND TO CONGRESS THE
EXERCISE OF THE WAR POWER NECESSARILY GAVE THEM WIDE SCOPE FOR THE
EXERCISE OF JUDGMENT AND DISCRETION SO THAT WAR MIGHT BE WAGED
EFFECTIVELY AND SUCCESSFULLY.  HIRABAYASHI V. UNITED STATES, SUPRA, P.
93.  AT THE SAME TIME, HOWEVER, THE CONSTITUTION IS AS SPECIFIC IN ITS
ENUMERATION OF MANY OF THE CIVIL RIGHTS OF THE INDIVIDUAL AS IT IS IN
ITS ENUMERATION OF THE POWERS OF HIS GOVERNMENT.  THUS IT HAS
PRESCRIBED PROCEDURAL SAFEGUARDS SURROUNDING THE ARREST, DETENTION AND
CONVICTION OF INDIVIDUALS.  SOME OF THESE ARE CONTAINED IN THE SIXTH
AMENDMENT, COMPLIANCE WITH WHICH IS ESSENTIAL IF CONVICTIONS ARE TO BE
SUSTAINED.  TOT V. UNITED STATES, 319 U.S. 463.  AND THE FIFTH
AMENDMENT PROVIDES THAT NO PERSON SHALL BE DEPRIVED OF LIBERTY (AS WELL
AS LIFE OR PROPERTY) WITHOUT DUE PROCESS OF LAW.  MOREOVER, AS A
FURTHER SAFEGUARD AGAINST INVASION OF THE BASIC CIVIL RIGHTS OF THE
INDIVIDUAL IT IS PROVIDED IN ART. I, SEC. 9 OF THE CONSTITUTION THAT
"THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED,
UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC SAFETY MAY
REQUIRE IT."  SEE EX PARTE MILLIGAN, SUPRA. 

WE MENTION THESE CONSTITUTIONAL PROVISIONS NOT TO STIR THE
CONSTITUTIONAL ISSUES WHICH HAVE BEEN ARGUED AT THE BAR BUT TO INDICATE
THE APPROACH WHICH WE THINK SHOULD BE MADE TO AN ACT OF CONGRESS OR AN
ORDER OF THE CHIEF EXECUTIVE THAT TOUCHES THE SENSITIVE AREA OF RIGHTS
SPECIFICALLY GUARANTEED BY THE CONSTITUTION.  THIS COURT HAS QUITE
CONSISTENTLY GIVEN A NARROWER SCOPE FOR THE OPERATION OF THE
PRESUMPTION OF CONSTITUTIONALITY WHEN LEGISLATION APPEARED ON ITS FACE
TO VIOLATE A SPECIFIC PROHIBITION OF THE CONSTITUTION.  FN22  WE HAVE
LIKEWISE FAVORED THAT INTERPRETATION OF LEGISLATION WHICH GIVES IT THE
GREATER CHANCE OF SURVIVING THE TEST OF CONSTITUTIONALITY.  FN23 THOSE
ANALOGIES ARE SUGGESTIVE HERE.  WE MUST ASSUME THAT THE CHIEF EXECUTIVE
AND MEMBERS OF CONGRESS, AS WELL AS THE COURTS, ARE SENSITIVE TO AND
RESPECTFUL OF THE LIBERTIES OF THE CITIZEN.  IN INTERPRETING A WARTIME
MEASURE WE MUST ASSUME THAT THEIR PURPOSE WAS TO ALLOW FOR THE GREATEST
POSSIBLE ACCOMMODATION BETWEEN THOSE LIBERTIES AND THE EXIGENCIES OF
WAR.  WE MUST ASSUME, WHEN ASKED TO FIND IMPLIED POWERS IN A GRANT OF
LEGISLATIVE OR EXECUTIVE AUTHORITY, THAT THE LAW MAKERS INTENDED TO
PLACE NO GREATER RESTRAINT ON THE CITIZEN THAN WAS CLEARLY AND
UNMISTAKABLY INDICATED BY THE LANGUAGE THEY USED. 

THE ACT OF MARCH 21, 1942, WAS A WAR MEASURE.  THE HOUSE REPORT (H.
REP. NO. 1906, 77TH CONG., 2D SESS., P. 2) STATED, "THE NECESSITY FOR
THIS LEGISLATION AROSE FROM THE FACT THAT THE SAFE CONDUCT OF THE WAR
REQUIRES THE FULLEST POSSIBLE PROTECTION AGAINST EITHER ESPIONAGE OR
SABOTAGE TO NATIONAL DEFENSE MATERIAL, NATIONAL DEFENSE PREMISES, AND
NATIONAL DEFENSE UTILITIES."  THAT WAS THE PRECISE PURPOSE OF EXECUTIVE
ORDER NO. 9066, FOR, AS WE HAVE SEEN, IT GAVE AS THE REASON FOR THE
EXCLUSION OF PERSONS FROM PRESCRIBED MILITARY AREAS THE PROTECTION OF
SUCH PROPERTY "AGAINST ESPIONAGE AND AGAINST SABOTAGE."  AND EXECUTIVE
ORDER NO. 9102 WHICH ESTABLISHED THE WAR RELOCATION AUTHORITY DID SO,
AS WE HAVE NOTED, "IN ORDER TO PROVIDE FOR THE REMOVAL FROM DESIGNATED
AREAS OF PERSONS WHOSE REMOVAL IS NECESSARY IN THE INTERESTS OF
NATIONAL SECURITY."  THE PURPOSE AND OBJECTIVE OF THE ACT AND OF THESE
ORDERS ARE PLAIN.  THEIR SINGLE AIM WAS THE PROTECTION OF THE WAR
EFFORT AGAINST ESPIONAGE AND SABOTAGE.  IT IS IN LIGHT OF THAT ONE
OBJECTIVE THAT THE POWERS CONFERRED BY THE ORDERS MUST BE CONSTRUED. 

NEITHER THE ACT NOR THE ORDERS USE THE LANGUAGE OF DETENTION.  THE
ACT SAYS THAT NO ONE SHALL "ENTER, REMAIN IN, LEAVE, OR COMMIT ANY ACT"
IN THE PRESCRIBED MILITARY AREAS CONTRARY TO THE APPLICABLE
RESTRICTIONS.  EXECUTIVE ORDER NO. 9066 SUBJECTS THE RIGHT OF ANY
PERSON "TO ENTER, REMAIN IN, OR LEAVE" THOSE PRESCRIBED AREAS TO SUCH
RESTRICTIONS AS THE MILITARY MAY IMPOSE.  AND APART FROM THOSE
RESTRICTIONS THE SECRETARY OF WAR IS ONLY GIVEN AUTHORITY TO AFFORD THE
EVACUEES "TRANSPORTATION, FOOD, SHELTER, AND OTHER ACCOMMODATIONS." 
EXECUTIVE ORDER NO. 9102 AUTHORIZES AND DIRECTS THE WAR RELOCATION
AUTHORITY "TO FORMULATE AND EFFECTUATE A PROGRAM FOR THE REMOVAL" OF
THE PERSONS COVERED BY EXECUTIVE ORDER NO. 9066 FROM THE PRESCRIBED
MILITARY AREAS AND "FOR THEIR RELOCATION, MAINTENANCE, AND
SUPERVISION."  AND POWER IS GIVEN THE AUTHORITY TO MAKE REGULATIONS
"NECESSARY OR DESIRABLE TO PROMOTE EFFECTIVE EXECUTION OF SUCH
PROGRAM."  MOREOVER, UNLIKE THE CASE OF CURFEW REGULATIONS (HIRABAYASHI
V. UNITED STATES, SUPRA), THE LEGISLATIVE HISTORY OF THE ACT OF MARCH
21, 1942, IS SILENT ON DETENTION.  AND THAT SILENCE MAY HAVE SPECIAL
SIGNIFICANCE IN VIEW OF THE FACT THAT DETENTION IN RELOCATION CENTERS
WAS NO PART OF THE ORIGINAL PROGRAM OF EVACUATION BUT DEVELOPED LATER
TO MEET WHAT SEEMED TO THE OFFICIALS IN CHARGE TO BE MOUNTING HOSTILITY
TO THE EVACUEES ON THE PART OF THE COMMUNITIES WHERE THEY SOUGHT TO
GO. 

WE DO NOT MEAN TO IMPLY THAT DETENTION IN CONNECTION WITH NO PHASE OF
THE EVACUATION PROGRAM WOULD BE LAWFUL.  THE FACT THAT THE ACT AND THE
ORDERS ARE SILENT ON DETENTION DOES NOT OF COURSE MEAN THAT ANY POWER
TO DETAIN IS LACKING.  SOME SUCH POWER MIGHT INDEED BE NECESSARY TO THE
SUCCESSFUL OPERATION OF THE EVACUATION PROGRAM.  AT LEAST WE MAY SO
ASSUME.  MOREOVER, WE MAY ASSUME FOR THE PURPOSES OF THIS CASE THAT
INITIAL DETENTION IN RELOCATION CENTERS WAS AUTHORIZED.  BUT WE STRESS
THE SILENCE OF THE LEGISLATIVE HISTORY AND OF THE ACT AND THE EXECUTIVE
ORDERS ON THE POWER TO DETAIN TO EMPHASIZE THAT ANY SUCH AUTHORITY
WHICH EXISTS MUST BE IMPLIED.  IF THERE IS TO BE THE GREATEST POSSIBLE
ACCOMMODATION OF THE LIBERTIES OF THE CITIZEN WITH THIS WAR MEASURE,
ANY SUCH IMPLIED POWER MUST BE NARROWLY CONFINED TO THE PRECISE PURPOSE
OF THE EVACUATION PROGRAM. 

A CITIZEN WHO IS CONCEDEDLY LOYAL PRESENTS NO PROBLEM OF ESPIONAGE OR
SABOTAGE.  LOYALTY IS A MATTER OF THE HEART AND MIND, NOT OF RACE,
CREED, OR COLOR.  HE WHO IS LOYAL IS BY DEFINITION NOT A SPY OR A
SABOTEUR.  WHEN THE POWER TO DETAIN IS DERIVED FROM THE POWER TO
PROTECT THE WAR EFFORT AGAINST ESPIONAGE AND SABOTAGE, DETENTION WHICH
HAS NO RELATIONSHIP TO THAT OBJECTIVE IS UNAUTHORIZED. 

NOR MAY THE POWER TO DETAIN AN ADMITTEDLY LOYAL CITIZEN OR TO GRANT
HIM A CONDITIONAL RELEASE BE IMPLIED AS A USEFUL OR CONVENIENT STEP IN
THE EVACUATION PROGRAM, WHATEVER AUTHORITY MIGHT BE IMPLIED IN CASE OF
THOSE WHOSE LOYALTY WAS NOT CONCEDED OR ESTABLISHED.  IF WE ASSUME (AS
WE DO) THAT THE ORIGINAL EVACUATION WAS JUSTIFIED, ITS LAWFUL CHARACTER
WAS DERIVED FROM THE FACT THAT IT WAS AN ESPIONAGE AND SABOTAGE
MEASURE, NOT THAT THERE WAS COMMUNITY HOSTILITY TO THIS GROUP OF
AMERICAN CITIZENS.  THE EVACUATION PROGRAM RESTED EXPLICITLY ON THE
FORMER GROUND NOT ON THE LATTER AS THE UNDERLYING LEGISLATION SHOWS. 
THE AUTHORITY TO DETAIN A CITIZEN OR TO GRANT HIM A CONDITIONAL RELEASE
AS PROTECTION AGAINST ESPIONAGE OR SABOTAGE IS EXHAUSTED AT LEAST WHEN
HIS LOYALTY IS CONCEDED.  IF WE HELD THAT THE AUTHORITY TO DETAIN
CONTINUED THEREAFTER, WE WOULD TRANSFORM AN ESPIONAGE OR SABOTAGE
MEASURE INTO SOMETHING ELSE.  THAT WAS NOT DONE BY EXECUTIVE ORDER NO.
9066 OR BY THE ACT OF MARCH 21, 1942, WHICH RATIFIED IT.  WHAT THEY DID
NOT DO WE CANNOT DO.  DETENTION WHICH FURTHERED THE CAMPAIGN AGAINST
ESPIONAGE AND SABOTAGE WOULD BE ONE THING.  BUT DETENTION WHICH HAS NO
RELATIONSHIP TO THAT CAMPAIGN IS OF A DISTINCT CHARACTER.  COMMUNITY
HOSTILITY EVEN TO LOYAL EVACUEES MAY HAVE BEEN (AND PERHAPS STILL IS) A
SERIOUS PROBLEM.  BUT IF AUTHORITY FOR THEIR CUSTODY AND SUPERVISION IS
TO BE SOUGHT ON THAT GROUND, THE ACT OF MARCH 21, 1942, EXECUTIVE ORDER
NO. 9066, AND EXECUTIVE ORDER NO. 9102, OFFER NO SUPPORT.  AND NONE
OTHER IS ADVANCED.  FN24  TO READ THEM THAT BROADLY WOULD BE TO ASSUME
THAT THE CONGRESS AND THE PRESIDENT INTENDED THAT THIS DISCRIMINATORY
ACTION SHOULD BE TAKEN AGAINST THESE PEOPLE WHOLLY ON ACCOUNT OF THEIR
ANCESTRY EVEN THOUGH THE GOVERNMENT CONCEDED THEIR LOYALTY TO THIS
COUNTRY.  WE CANNOT MAKE SUCH AN ASSUMPTION.  AS THE PRESIDENT HAS SAID
OF THESE LOYAL CITIZENS:    "AMERICANS OF JAPANESE ANCESTRY, LIKE THOSE
OF MANY OTHER ANCESTRIES, HAVE SHOWN THAT THEY CAN, AND WANT TO, ACCEPT
OUR INSTITUTIONS AND WORK LOYALLY WITH THE REST OF US, MAKING THEIR OWN
VALUABLE CONTRIBUTION TO THE NATIONAL WEALTH AND WELL-BEING.  IN
VINDICATION OF THE VERY IDEALS FOR WHICH WE ARE FIGHTING THIS WAR IT IS
IMPORTANT TO US TO MAINTAIN A HIGH STANDARD OF FAIR, CONSIDERATE, AND
EQUAL TREATMENT FOR THE PEOPLE OF THIS MINORITY AS OF ALL OTHER
MINORITIES."  SEN. DOC. NO. 96, SUPRA, NOTE 7, P. 2. 

MITSUYE ENDO IS ENTITLED TO AN UNCONDITIONAL RELEASE BY THE WAR
RELOCATION AUTHORITY. 

SECOND.  THE QUESTION REMAINS WHETHER THE DISTRICT COURT HAS
JURISDICTION TO GRANT THE WRIT OF HABEAS CORPUS BECAUSE OF THE FACT
THAT WHILE THE CASE WAS PENDING IN THE CIRCUIT COURT OF APPEALS
APPELLANT WAS MOVED FROM THE TULE LAKE RELOCATION CENTER IN THE
NORTHERN DISTRICT OF CALIFORNIA WHERE SHE WAS ORIGINALLY DETAINED TO
THE CENTRAL UTAH RELOCATION CENTER IN A DIFFERENT DISTRICT AND
CIRCUIT. 

THAT QUESTION IS NOT COLORED BY ANY PURPOSE TO EFFECTUATE A REMOVAL
IN EVASION OF THE HABEAS CORPUS PROCEEDINGS.  IT APPEARS THAT
APPELLANT'S REMOVAL TO UTAH WAS PART OF A GENERAL SEGREGATION PROGRAM
INVOLVING MANY OF THESE PEOPLE AND WAS IN NO WAY RELATED TO THIS
PENDING CASE.  MOREOVER, THERE IS NO SUGGESTION THAT THERE IS NO ONE
WITHIN THE JURISDICTION OF THE DISTRICT COURT WHO IS RESPONSIBLE FOR
THE DETENTION OF APPELLANT AND WHO WOULD BE AN APPROPRIATE RESPONDENT. 
WE ARE INDEED ADVISED BY THE ACTING SECRETARY OF THE INTERIOR  FN25
THAT IF THE WRIT ISSUES AND IS DIRECTED TO THE SECRETARY OF THE
INTERIOR OR ANY OFFICIAL OF THE WAR RELOCATION AUTHORITY (INCLUDING AN
ASSISTANT DIRECTOR WHOSE OFFICE IS AT SAN FRANCISCO, WHICH IS IN THE
JURISDICTION OF THE DISTRICT COURT), THE CORPUS OF APPELLANT WILL BE
PRODUCED AND THE COURT'S ORDER COMPLIED WITH IN ALL RESPECTS.  THUS IT
WOULD SEEM THAT THE CASE IS NOT MOOT. 

IN UNITED STATES EX REL. INNES V. CRYSTAL, 319 U.S. 755, THE RELATOR
CHALLENGED A JUDGMENT OF COURT MARTIAL BY HABEAS CORPUS.  THE DISTRICT
COURT DENIED HIS PETITION AND THE CIRCUIT COURT OF APPEALS AFFIRMED
THAT ORDER.  AFTER THAT DECISION AND BEFORE HIS PETITION FOR CERTIORARI
WAS FILED HERE, HE WAS REMOVED FROM THE CUSTODY OF THE ARMY TO A
FEDERAL PENITENTIARY IN A DIFFERENT DISTRICT AND CIRCUIT.  THE SOLE
RESPONDENT WAS THE COMMANDING OFFICER.  ONLY AN ORDER DIRECTED TO THE
WARDEN OF THE PENITENTIARY COULD EFFECTUATE HIS DISCHARGE AND THE
WARDEN AS WELL AS THE PRISONER WAS OUTSIDE THE TERRITORIAL JURISDICTION
OF THE DISTRICT COURT.  WE THEREFORE HELD THE CAUSE MOOT.  THERE IS NO
COMPARABLE SITUATION HERE. 

THE FACT THAT NO RESPONDENT WAS EVER SERVED WITH PROCESS OR APPEARED
IN THE PROCEEDINGS IS NOT IMPORTANT.  THE UNITED STATES RESISTS THE
ISSUANCE OF A WRIT.  A CAUSE EXISTS IN THAT STATE OF THE PROCEEDINGS
AND AN APPEAL LIES FROM DENIAL OF A WRIT WITHOUT THE APPEARANCE OF A
RESPONDENT.  EX PARTE MILLIGAN, SUPRA, P. 112; EX PARTE QUIRIN, 317
U.S. 1, 24. 

HENCE, SO FAR AS PRESENTLY APPEARS, THE CAUSE IS NOT MOOT AND THE
DISTRICT COURT HAS JURISDICTION TO ACT UNLESS THE PHYSICAL PRESENCE OF
APPELLANT IN THAT DISTRICT IS ESSENTIAL. 

WE NEED NOT DECIDE WHETHER THE PRESENCE OF THE PERSON DETAINED WITHIN
THE TERRITORIAL JURISDICTION OF THE DISTRICT COURT IS PREREQUISITE TO
FILING A PETITION FOR A WRIT OF HABEAS CORPUS.  SEE IN RE BOLES, 48 F.
75; EX PARTE GOUYET, 175 F. 230, 233; UNITED STATES V. DAY, 50 F.2D
816, 817; UNITED STATES V. SCHLOTFELDT, 136 F.2D 935, 940.  BUT SEE
TIPPITT V. WOOD, 140 F.2D 689, 693.  WE ONLY HOLD THAT THE DISTRICT
COURT ACQUIRED JURISDICTION IN THIS CASE AND THAT THE REMOVAL OF
MITSUYE ENDO DID NOT CAUSE IT TO LOSE JURISDICTION WHERE A PERSON IN
WHOSE CUSTODY SHE IS REMAINS WITHIN THE DISTRICT. 

THERE ARE EXPRESSIONS IN SOME OF THE CASES WHICH INDICATE THAT THE
PLACE OF CONFINEMENT MUST BE WITHIN THE COURT'S TERRITORIAL
JURISDICTION IN ORDER TO ENABLE IT TO ISSUE THE WRIT.  SEE IN RE BOLES,
SUPRA, P. 76; EX PARTE GOUYET, SUPRA; UNITED STATES V. DAY, SUPRA;
UNITED STATES V. SCHLOTFELDT, SUPRA.  BUT WE ARE OF THE VIEW THAT THE
COURT MAY ACT IF THERE IS A RESPONDENT WITHIN REACH OF ITS PROCESS WHO
HAS CUSTODY OF THE PETITIONER.  AS JUDGE COOLEY STATED IN IN THE MATTER
OF SAMUEL W. JACKSON, 15 MICH. 417, 439-440: 

"THE IMPORTANT FACT TO BE OBSERVED IN REGARD TO THE MODE OF PROCEDURE
UPON THIS WRIT IS, THAT IT IS DIRECTED TO, AND SERVED UPON, NOT THE
PERSON CONFINED, BUT HIS JAILER.  IT DOES NOT REACH THE FORMER EXCEPT
THROUGH THE LATTER.  THE OFFICER OR PERSON WHO SERVES IT DOES NOT UNBAR
THE PRISON DOORS, AND SET THE PRISONER FREE, BUT THE COURT RELIEVES HIM
BY COMPELLING THE OPPRESSOR TO RELEASE HIS CONSTRAINT.  THE WHOLE FORCE
OF THE WRIT IS SPENT UPON THE RESPONDENT;" AND SEE UNITED STATES V.
DAVIS, 5 CRANCH C.C. 622, FED. CAS. NO. 14,926; EX PARTE FONG YIM, 134
F. 938; EX PARTE NG QUONG MING, 135 F. 378, 379; SANDERS V. ALLEN, 100
F.2D 717, 719; RIVERS V. MITCHELL, 57 IA. 193, 195, 10 N.W. 626; PEOPLE
V. NEW YORK ASYLUM, 57 APP. DIV. 383, 384, 68 N.Y.S. 279; PEOPLE V. NEW
YORK ASYLUM, 58 APP. DIV. 133, 134, 68 N.Y.S. 656.  THE STATUTE UPON
WHICH THE JURISDICTION OF THE DISTRICT COURT IN HABEAS CORPUS
PROCEEDINGS RESTS (REV. STAT. SEC. 752, 28 U.S.C. SEC. 452) GIVES IT
POWER "TO GRANT WRITS OF HABEAS CORPUS FOR THE PURPOSE OF AN INQUIRY
INTO THE CAUSE OF RESTRAINT OF LIBERTY."  FN26  THAT OBJECTIVE MAY BE
IN NO WAY IMPAIRED OR DEFEATED BY THE REMOVAL OF THE PRISONER FROM THE
TERRITORIAL JURISDICTION OF THE DISTRICT COURT.  THAT END MAY BE SERVED
AND THE DECREE OF THE COURT MADE EFFECTIVE IF A RESPONDENT WHO HAS
CUSTODY OF THE PRISONER IS WITHIN REACH OF THE COURT'S PROCESS EVEN
THOUGH THE PRISONER HAS BEEN REMOVED FROM THE DISTRICT SINCE THE SUIT
WAS BEGUN.  FN27 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  CIVILIAN EXCLUSION ORDERS NOS. 1 TO 99 WERE RATIFIED BY GENERAL
DE WITT'S PUBLIC PROCLAMATION NO. 7 OF JUNE 8, 1942(7 FED. REG. 4498)
AND NOS. 100 TO 108 WERE RATIFIED BY PUBLIC PROCLAMATION NO. 11 OF
AUGUST 18, 1942.  7 FED. REG. 6703. 

FN2  BY PUBLIC PROCLAMATION NO. 4, DATED MARCH 27, 1942(7 FED. REG.
2601) GENERAL DE WITT HAD ORDERED THAT ALL PERSONS OF JAPANESE ANCESTRY
WHO WERE WITHIN THE LIMITS OF MILITARY AREA NO. 1(WHICH INCLUDED THE
CITY OF SACRAMENTO) WERE PROHIBITED "FROM LEAVING THAT AREA FOR ANY
PURPOSE UNTIL AND TO THE EXTENT THAT A FUTURE PROCLAMATION OR ORDER OF
THIS HEADQUARTERS SHALL SO PERMIT OR DIRECT." 

PRIOR TO THIS PROCLAMATION A SYSTEM OF VOLUNTARY MIGRATION HAD BEEN
IN FORCE UNDER WHICH 4,889 PERSONS LEFT THE MILITARY AREAS UNDER THEIR
OWN ARRANGEMENTS.  FINAL REPORT, JAPANESE EVACUATION FROM THE WEST
COAST (1943), P. 109.  THE FOLLOWING REASONS ARE GIVEN FOR TERMINATING
THAT PROGRAM: 

"ESSENTIALLY, THE OBJECTIVE WAS TWOFOLD.  FIRST, IT WAS TO ALLEVIATE
TENSION AND PREVENT INCIDENTS INVOLVING VIOLENCE BETWEEN JAPANESE
MIGRANTS AND OTHERS.  SECOND, IT WAS TO INSURE AN ORDERLY, SUPERVISED,
AND THOROUGHLY CONTROLLED EVACUATION WITH ADEQUATE PROVISION FOR THE
PROTECTION OF THE PERSONS OF EVACUEES AS WELL AS THEIR PROPERTY." 
FINAL REPORT, SUPRA, P. 105. 

FN3  SIX WAR RELOCATION CENTERS AND PROJECT AREAS WERE ESTABLISHED
WITHIN AND FOUR OUTSIDE THE WESTERN DEFENSE COMMAND.  SEE FINAL REPORT,
SUPRA, NOTE 2, PART VI.  EACH ONE WHICH WAS OUTSIDE THE WESTERN DEFENSE
COMMAND WAS DESIGNATED AS A MILITARY AREA BY THE SECRETARY OF WAR IN
PUBLIC PROCLAMATION NO. WD1, DATED AUGUST 13, 1942.  THAT PROCLAMATION
PROVIDED THAT ALL PERSONS OF JAPANESE ANCESTRY IN THOSE AREAS WERE
REQUIRED TO REMAIN THERE UNLESS WRITTEN AUTHORIZATION TO LEAVE WAS
OBTAINED FROM THE SECRETARY OF WAR OR THE DIRECTOR OF THE WAR
RELOCATION AUTHORITY.  7 FED. REG. 6593.  IT RECITED THAT THE UNITED
STATES WAS SUBJECT TO "ESPIONAGE AND ACTS OF SABOTAGE, THEREBY
REQUIRING THE ADOPTION OF MILITARY MEASURES NECESSARY TO ESTABLISH
SAFEGUARDS AGAINST SUCH ENEMY OPERATIONS EMANATING FROM WITHIN AS WELL
AS FROM WITHOUT THE NATIONAL BOUNDARIES."  AND IT ALSO PURPORTED TO
MAKE ANY PERSON WHO WAS SUBJECT TO ITS PROVISIONS AND WHO FAILED TO
OBEY IT LIABLE TO THE PENALTIES PRESCRIBED BY THE ACT OF MARCH 21,
1942. 

FN4  THE LETTER OF AUGUST 11, 1942, IS PRINTED IN THE FINAL REPORT,
SUPRA, NOTE 2, P. 530.  IT RECITED THAT THE DELEGATION OF AUTHORITY WAS
MADE PURSUANT TO PROVISIONS OF PUBLIC PROCLAMATION NO. 8, DATED JUNE
27, 1942.  LATER GENERAL DE WITT DESCRIBED THE SUPERVISION OF
RELOCATION CENTERS BY THE WAR RELOCATION AUTHORITY AS FOLLOWS: 

"THE INITIAL PROBLEM WAS ONE OF SECURITY - THE SECURITY OF THE
PACIFIC COAST.  THE PROBLEM WAS MET BY EVACUATION TO ASSEMBLY CENTERS
FOLLOWED BY A TRANSFER TO RELOCATION CENTERS.  THE LATTER PHASE -
CONSTRUCTION, SUPPLY, EQUIPMENT OF RELOCATION CENTERS AND THE TRANSFER
OF EVACUEES FROM ASSEMBLY TO RELOCATION CENTERS HAD BEEN ACCOMPLISHED
BY THE ARMY.  (WHILE THE COMMANDING GENERAL WAS MADE RESPONSIBLE FOR
THIS LATTER PHASE OF THE PROGRAM, IN SO DOING, HE WAS ACCOMPLISHING A
MISSION OF THE WAR RELOCATION AUTHORITY RATHER THAN STRICTLY AN ARMY
MISSION.)  THE SECOND PROBLEM - NATIONAL IN SCOPE - ESSENTIALLY A
SOCIAL-ECONOMIC PROBLEM, WAS PRIMARILY FOR SOLUTION BY THE WAR
RELOCATION AUTHORITY, AN AGENCY EXPRESSLY CREATED FOR THAT PURPOSE." 

FINAL REPORT, SUPRA, NOTE 2, P. 246. 

ON FEBRUARY 16, 1944, THE PRESIDENT BY EXECUTIVE ORDER NO. 9423
TRANSFERRED THE WAR RELOCATION AUTHORITY TO THE DEPARTMENT OF THE
INTERIOR.  9 FED. REG. 1903.  THE SECRETARY OF THE INTERIOR BY
ADMINISTRATIVE ORDER NO. 1922, DATED FEBRUARY 16, 1944, AUTHORIZED THE
DIRECTOR TO PERFORM UNDER THE SECRETARY'S SUPERVISION AND DIRECTION THE
FUNCTIONS TRANSFERRED TO THE DEPARTMENT BY EXECUTIVE ORDER NO. 9423. 

FN5  AND SEE THE DELEGATION OF AUTHORITY CONTAINED IN THE SECRETARY
OF WAR'S PROCLAMATION WD1 OF AUGUST 13, 1942, SUPRA, NOTE 3, RESPECTING
RELOCATION CENTERS OUTSIDE THE WESTERN DEFENSE COMMAND. 

FN6  THE COMMANDING GENERAL RETAINED EXCLUSIVE JURISDICTION OVER THE
RELEASE OF EVACUEES FOR THE PURPOSE OF EMPLOYMENT, RESETTLEMENT, OR
RESIDENCE WITHIN MILITARY AREA NO. 1 AND THE CALIFORNIA PORTION OF
MILITARY AREA NO. 2.  SEE FINAL REPORT, SUPRA, NOTE 2, P. 242.  AS TO
THE RELOCATION CENTERS SITUATED WITHIN THE EVACUATED ZONE, THE
COMMANDING GENERAL REGULATED "THE CONDITIONS OF TRAVEL AND MOVEMENT
THROUGH THE AREA."  ID. 

"THE COMMANDING GENERAL RECOGNIZED FULLY THAT ONE OF THE PRINCIPAL
RESPONSIBILITIES OF WAR RELOCATION AUTHORITY WAS PROPERLY TO CONTROL
INGRESS AND EGRESS AT RELOCATION CENTERS.  THE EXERCISE OF SUCH CONTROL
BY ARMY AUTHORITIES WOULD HAVE BEEN TANTAMOUNT TO ADMINISTERING THE
CENTERS THEMSELVES.  WHILE THE COMMANDING GENERAL RETAINED EXCLUSIVE
CONTROL TO REGULATE AND PROHIBIT THE ENTRY OR MOVEMENT OF ANY JAPANESE
IN THE EVACUATED AREAS, HE DELEGATED FULLY THE AUTHORITY AND
RESPONSIBILITY TO DETERMINE ENTRY TO AND DEPARTURE FROM THE CENTER
PROPER."  ID. 

FN7  THE FUNCTIONING OF RELOCATION CENTERS IS DESCRIBED IN THE FINAL
REPORT, SUPRA, NOTE 2, PART VI AND IN SEGREGATION OF LOYAL AND DISLOYAL
JAPANESE IN RELOCATION CENTERS, SEN. DOC. NO. 96, 78TH CONG., 1ST
SESS., PP. 4-25. 

FN8  PROVISION WAS ALSO MADE FOR GROUP-LEAVE (OR SEASONAL-WORK LEAVE)
AND SHORT TERM LEAVE NOT TO EXCEED 60 DAYS.  SEE SEN. DOC. NO. 96,
SUPRA, NOTE 7, P. 17. 

FN9  THE FIRST LEAVE PROCEDURE WAS CONTAINED IN ADMINISTRATIVE
INSTRUCTION NO. 22, DATED JULY 20, 1942.  IT PROVIDED IN SHORT THAT ANY
CITIZEN OF JAPANESE ANCESTRY WHO HAD NEVER RESIDED OR BEEN EDUCATED IN
JAPAN COULD APPLY FOR A PERMIT TO LEAVE THE RELOCATION CENTER IF HE
COULD SHOW THAT HE HAD A SPECIFIC JOB OPPORTUNITY AT A DESIGNATED PLACE
OUTSIDE THE RELOCATION CENTER AND OUTSIDE THE WESTERN DEFENSE COMMAND. 
EVERY PERMITTEE WAS SAID TO REMAIN IN THE "CONSTRUCTIVE CUSTODY" OF THE
MILITARY COMMANDER IN WHOSE JURISDICTION THE RELOCATION CENTER WAS
LOCATED.  THE PERMIT COULD BE REVOKED BY THE DIRECTOR AND THE PERMITTEE
REQUIRED TO RETURN TO THE RELOCATION CENTER IF THE DIRECTOR FOUND THAT
THE REVOCATION WAS NECESSARY "IN THE PUBLIC INTEREST."  THE REGULATIONS
OF SEPTEMBER 26, 1942, PROVIDED MORE DETAILED PROCEDURES FOR OBTAINING
LEAVE.  SEE 7 FED. REG. 7656.  ADMINISTRATIVE INSTRUCTION NO. 22 WAS
REVISED NOVEMBER 6, 1942.  IT WAS SUPERSEDED AS A SUPPLEMENT TO THE
REGULATIONS BY THE HANDBOOK OF JULY 20, 1943.  THE REGULATIONS OF
SEPTEMBER 26, 1942 WERE REVISED JANUARY 1, 1944.  SEE 9 FED. REG. 154. 

FN10  HANDBOOK, SEC. 60.6.6.  NINE FACTORS ARE SPECIFIED EACH OF
WHICH IS "REGARDED BY INTELLIGENCE AGENCIES AS SUFFICIENT TO WARRANT A
RECOMMENDATION THAT LEAVE CLEARANCE BE DENIED UNLESS THERE IS AN
ADEQUATE EXPLANATION."  SEC. 60.10.2.  THESE INCLUDE, AMONG OTHERS, A
FAILURE OR REFUSAL TO SWEAR UNQUALIFIED ALLEGIANCE TO THE UNITED STATES
AND TO FORSWEAR ANY FORM OF ALLEGIANCE TO THE JAPANESE EMPEROR OR ANY
OTHER FOREIGN GOVERNMENT, POWER, OR ORGANIZATION; A REQUEST FOR
REPATRIATION OR EXPATRIATION WHETHER OR NOT SUBSEQUENTLY RETRACTED;
MILITARY TRAINING IN JAPAN; EMPLOYMENT ON JAPANESE NAVAL VESSELS; THREE
TRIPS TO JAPAN AFTER THE AGE OF SIX, EXCEPT IN THE CASE OF SEAMEN WHOSE
TRIPS WERE CONFINED TO PORTS OF CALL; AN ORGANIZER, AGENT, MEMBER, OR
CONTRIBUTOR TO SPECIFIED ORGANIZATIONS WHICH INTELLIGENCE AGENCIES
CONSIDER SUBVERSIVE. 

FN11  HANDBOOK, SEC. 60.4.3. 

FN12  ID. 

FN13  ID.  THE WAR RELOCATION AUTHORITY ALSO RECOMMENDS COMMUNITIES
IN WHICH AN EVACUEE WILL BE ACCEPTED, RENDERS AID IN FINDING EMPLOYMENT
OPPORTUNITIES, AND PROVIDES CASH GRANTS, IF NEEDED, TO ASSIST THE
EVACUEE IN REACHING A SPECIFIED DESTINATION AND IN BECOMING ESTABLISHED
THERE.  THE AUTHORITY HAS ESTABLISHED EIGHT AREA OFFICES AND TWENTY-SIX
DISTRICT OFFICES TO HELP CARRY OUT THE RELOCATION PROGRAM.    FN14
SEC. 60.4.8.  OF THE HANDBOOK PROVIDES: 

"BEFORE ANY INDEFINITE LEAVE PERMITTING ANY ENTRY INTO OR TRAVEL IN A
PROHIBITED MILITARY AREA MAY ISSUE, A WRITTEN PASS OR AUTHORIZATION
SHALL BE PROCURED FOR THE APPLICANT FROM THE APPROPRIATE MILITARY
AUTHORITIES AND AN ESCORT SHALL BE PROVIDED IF REQUIRED BY THE MILITARY
AUTHORITIES.  SUCH PASS OR AUTHORIZATION MAY BE PROCURED THROUGH THE
ASSISTANT DIRECTOR IN SAN FRANCISCO, OR IN THE CASE OF THE MANZANAR
RELOCATION CENTER THROUGH THE COMMANDING OFFICER OF THE MILITARY POLICE
AT THE CENTER TO THE EXTENT AUTHORIZED BY THE WESTERN DEFENSE
COMMAND."    FN15  THE LEAVE CLEARANCE STATED THAT IT DID NOT AUTHORIZE
DEPARTURE FROM THE RELOCATION CENTER.  IT ADDED: 

"YOU ARE ELIGIBLE FOR INDEFINITE LEAVE FOR THE PURPOSE OF EMPLOYMENT
OR RESIDENCE IN THE EASTERN DEFENSE COMMAND AS WELL AS IN OTHER AREAS;
PROVIDED THE PROVISIONS OF ADMINISTRATIVE INSTRUCTION NO. 22, REV., ARE
OTHERWISE COMPLIED WITH.  THE PROVOST MARSHAL GENERAL'S DEPT. OF THE
WAR DEPARTMENT HAS DETERMINED THAT YOU, ENDO MITSUYE ARE NOT AT THIS
TIME ELIGIBLE FOR EMPLOYMENT IN PLANTS AND FACILITIES VITAL TO THE WAR
EFFORT." 

FN16  THE FORM OF A CITIZEN'S INDEFINITE LEAVE IS AS FOLLOWS: 

"THIS IS TO CERTIFY THAT .................. A UNITED STATES CITIZEN,
WHO HAS SUBMITTED TO ME SUFFICIENT PROOF OF SUCH CITIZENSHIP, RESIDING
WITHIN .................. RELOCATION AREA, IS ALLOWED TO LEAVE SUCH
AREA ON .................. 19.., AND SUBJECT TO THE TERMS OF THE
REGULATIONS OF THE WAR RELOCATION AUTHORITY RELATING TO THE ISSUANCE OF
LEAVE FOR DEPARTURE FROM A RELOCATION AREA AND SUBJECT TO RESTRICTIONS
ORDERED BY THE UNITED STATES ARMY, AND SUBJECT TO ANY SPECIAL
CONDITIONS OR RESTRICTIONS SET FORTH ON THE REVERSE SIDE HEREOF, TO
ENJOY LEAVE OF INDEFINITE DURATION." 

ONE OF THE GROUNDS GIVEN BY THE DISTRICT COURT FOR DENIAL OF THE
PETITION FOR WRIT OF HABEAS CORPUS WAS THE FAILURE OF APPELLANT TO
EXHAUST HER ADMINISTRATIVE REMEDIES.  THE SOLICITOR GENERAL AND THE WAR
RELOCATION AUTHORITY DO NOT INVOKE THAT RULE HERE, SINCE THE ISSUE
WHICH APPELLANT POSES IS THE VALIDITY OF THE REGULATIONS UNDER WHICH
THE ADMINISTRATIVE REMEDY IS PRESCRIBED. 

FN17  CF. THE ACCOUNT OF THE MEETING BY GENERAL DE WITT IN THE FINAL
REPORT, SUPRA, NOTE 2, PP. 243-244. 

FN18  AND SEE THE FOURTH INTERIM REPORT OF THE TOLAN COMMITTEE, H.R.
REP. NO. 2124, 77TH CONG., 2D SESS., P. 18. 

FN19  THERE WERE 108,503 EVACUEES TRANSFERRED TO RELOCATION CENTERS. 
FINAL REPORT, SUPRA, NOTE 2, P. 279.  AS OF JULY 29, 1944, THERE WERE
28,911 ON INDEFINITE LEAVE AND 61,002 IN THE RELOCATION CENTERS OTHER
THAN TULE LAKE.  IT WAS SOUGHT TO ASSEMBLE AT TULE LAKE THOSE WHOSE
DISLOYALTY WAS DEEMED TO BE ESTABLISHED AND THOSE WHO PERSISTED IN A
REFUSAL TO SAY THEY WOULD BE WILLING TO SERVE IN THE ARMED FORCES OF
THE UNITED STATES ON COMBAT DUTY WHEREVER ORDERED AND TO SWEAR
UNQUALIFIED ALLEGIANCE TO THE UNITED STATES AND FORSWEAR ANY FORM OF
ALLEGIANCE TO THE JAPANESE EMPEROR OR ANY OTHER FOREIGN GOVERNMENT,
POWER OR ORGANIZATION.  THIS GROUP, TOGETHER WITH MINOR CHILDREN,
TOTALED 18,684 ON JULY 29, 1944.  AND SEE HEARINGS, SUBCOMMITTEE ON THE
NATIONAL WAR AGENCIES APPROPRIATION BILL FOR 1945, P. 611. 

FN20  INSOFAR AS PUBLIC PROCLAMATION NO. WD1, DATED AUGUST 13, 1942,
SUPRA, NOTE 3, MIGHT BE DEEMED RELEVANT, IT IS NOT APPLICABLE HERE
SINCE THE RELOCATION CENTERS WITH WHICH WE ARE PRESENTLY CONCERNED WERE
WITHIN THE WESTERN DEFENSE COMMAND. 

FN21  SEE, FOR EXAMPLE, UNITED STATES V. CHEMICAL FOUNDATION, 272
U.S. 1, 12; UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304; YAKUS
V. UNITED STATES, 321 U.S. 414; BOWLES V. WILLINGHAM, 321 U.S. 503. 

FN22  STROMBERG V. CALIFORNIA, 283 U.S. 359; LOVELL V. GRIFFIN, 303
U.S. 444; HAGUE V. C.I.O., 307 U.S. 496; SCHNEIDER V. STATE, 308 U.S.
147; CANTWELL V. CONNECTICUT, 310 U.S. 296. 

FN23  UNITED STATES V. SHREVEPORT GRAIN & ELEVATOR CO., 287 U.S. 77,
82; INTERSTATE COMMERCE COMMISSION V. OREGON-WASHINGTON R. & N. CO.,
288 U.S. 14, 40; ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288,
348; LABOR BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1, 30; ANNISTON
MFG. CO. V. DAVIS, 301 U.S. 337, 351-352. 

FN24  IT IS ARGUED, TO BE SURE, THAT THERE HAS BEEN CONGRESSIONAL
RATIFICATION OF THE DETENTION OF LOYAL EVACUEES UNDER THE LEAVE
REGULATIONS OF THE AUTHORITY THROUGH THE APPROPRIATION OF SUMS FOR THE
EXPENSES OF THE AUTHORITY.  57 STAT. 533, P.L. 139, 78TH CONG., 1ST
SESS., APPROVED JULY 12, 1943 AND 58 STAT. 545, P.L. 372, 78TH CONG.,
2D SESS., APPROVED JUNE 28, 1944.  IT IS POINTED OUT THAT THE
REGULATIONS AND PROCEDURES OF THE AUTHORITY WERE DISCLOSED IN REPORTS
TO THE CONGRESS AND IN CONGRESSIONAL HEARINGS.  SEE, FOR EXAMPLE, SEN.
DOC. NO. 96, SUPRA, NOTE 7; REPORT AND MINORITY VIEWS OF THE SPECIAL
COMMITTEE ON UN-AMERICAN ACTIVITIES ON JAPANESE WAR RELOCATION CENTERS,
H. REP. NO. 717, 78TH CONG., 1ST SESS., PP. 23-26; HEARINGS,
SUBCOMMITTEE OF THE SENATE MILITARY AFFAIRS COMMITTEE ON S. 444, 78TH
CONG., 1ST SESS., PP. 45-46; JAPANESE WAR RELOCATION CENTERS,
SUBCOMMITTEE REPORT ON S. 444 AND S. 101 AND 111, 78TH CONG., 1ST
SESS., PP. 4-5 ET SEQ. AND IT IS SHOWN THAT THE LEAVE PROGRAM OF THE
AUTHORITY WAS MENTIONED BOTH IN THE HOUSE AND SENATE COMMITTEE HEARINGS
ON THE 1944 APPROPRIATION ACT (HEARINGS, SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON APPROPRIATIONS, NATIONAL WAR AGENCIES APPROPRIATION BILL
FOR 1944, 78TH CONG., 1ST SESS., PP. 698, 699, 710; HEARINGS OF THE
SENATE SUBCOMMITTEE ON APPROPRIATIONS, NATIONAL WAR AGENCIES
APPROPRIATION BILL FOR 1944, 78TH CONG., 1ST SESS., P. 382) AND ON THE
FLOOR OF THE HOUSE PRIOR TO PASSAGE OF THE 1944 ACT.  89 CONG. REC. PP.
5983-5985.  CONGRESS MAY OF COURSE DO BY RATIFICATION WHAT IT MIGHT
HAVE AUTHORIZED.  SWAYNE & HOYT V. UNITED STATES, 300 U.S. 297, 301
302.  AND RATIFICATION MAY BE EFFECTED THROUGH APPROPRIATION ACTS. 
ISBRANDTSEN-MOLLER CO. V. UNITED STATES, 300 U.S. 139, 147; BROOKS V.
DEWAR, 313 U.S. 354, 361.  BUT THE APPROPRIATION MUST PLAINLY SHOW A
PURPOSE TO BESTOW THE PRECISE AUTHORITY WHICH IS CLAIMED.  WE CAN
HARDLY DEDUCE SUCH A PURPOSE HERE WHERE A LUMP APPROPRIATION WAS MADE
FOR THE OVERALL PROGRAM OF THE AUTHORITY AND NO SUMS WERE EARMARKED FOR
THE SINGLE PHASE OF THE TOTAL PROGRAM WHICH IS HERE INVOLVED.  CONGRESS
MAY SUPPORT THE EFFORT TO TAKE CARE OF THESE EVACUEES WITHOUT RATIFYING
EVERY PHASE OF THE PROGRAM. 

FN25  IN A LETTER DATED OCTOBER 13, 1944 TO THE SOLICITOR GENERAL AND
FILED HERE. 

FN26  THE ENTIRE SECTION PROVIDES: 

"THE SEVERAL JUSTICES OF THE SUPREME COURT AND THE SEVERAL JUDGES OF
THE CIRCUIT COURTS OF APPEAL AND OF THE DISTRICT COURTS, WITHIN THEIR
RESPECTIVE JURISDICTIONS, SHALL HAVE POWER TO GRANT WRITS OF HABEAS
CORPUS FOR THE PURPOSE OF AN INQUIRY INTO THE CAUSE OF RESTRAINT OF
LIBERTY.  A CIRCUIT JUDGE SHALL HAVE THE SAME POWER TO GRANT WRITS OF
HABEAS CORPUS WITHIN HIS CIRCUIT, THAT A DISTRICT JUDGE HAS WITHIN HIS
DISTRICT; AND THE ORDER OF THE CIRCUIT JUDGE SHALL BE ENTERED IN THE
RECORDS OF THE DISTRICT COURT OF THE DISTRICT WHEREIN THE RESTRAINT
COMPLAINED OF IS HAD." 

THE LAST CLAUSE WAS ADDED BY SEC. 6 OF THE ACT OF FEBRUARY 13, 1925,
43 STAT. 940.  BUT WE FIND NO INDICATION THAT IT WAS ADDED TO CHANGE
THE SCOPE OF JURISDICTION IN HABEAS CORPUS PROCEEDINGS.  ON ITS FACE IT
IS NO MORE THAN A RECORDING REQUIREMENT. 

FN27  CF. RULE 45(1) OF THIS COURT WHICH PROVIDES:  "PENDING REVIEW
OF A DECISION REFUSING A WRIT OF HABEAS CORPUS, THE CUSTODY OF THE
PRISONER SHALL NOT BE DISTURBED." 

MR. JUSTICE MURPHY, CONCURRING. 

I JOIN IN THE OPINION OF THE COURT, BUT I AM OF THE VIEW THAT
DETENTION IN RELOCATION CENTERS OF PERSONS OF JAPANESE ANCESTRY
REGARDLESS OF LOYALTY IS NOT ONLY UNAUTHORIZED BY CONGRESS OR THE
EXECUTIVE BUT IS ANOTHER EXAMPLE OF THE UNCONSTITUTIONAL RESORT TO
RACISM INHERENT IN THE ENTIRE EVACUATION PROGRAM.  AS STATED MORE FULLY
IN MY DISSENTING OPINION IN KOREMATSU V. UNITED STATES, ANTE, P. 233,
RACIAL DISCRIMINATION OF THIS NATURE BEARS NO REASONABLE RELATION TO
MILITARY NECESSITY AND IS UTTERLY FOREIGN TO THE IDEALS AND TRADITIONS
OF THE AMERICAN PEOPLE. 

MOREOVER, THE COURT HOLDS THAT MITSUYE ENDO IS ENTITLED TO AN
UNCONDITIONAL RELEASE BY THE WAR RELOCATION AUTHORITY.  IT APPEARS THAT
MISS ENDO DESIRES TO RETURN TO SACRAMENTO, CALIFORNIA, FROM WHICH
PUBLIC PROCLAMATIONS NOS. 7 AND 11, AS WELL AS CIVILIAN EXCLUSION ORDER
NO. 52, STILL EXCLUDE HER.  AND IT WOULD SEEM TO ME THAT THE
"UNCONDITIONAL" RELEASE TO BE GIVEN MISS ENDO NECESSARILY IMPLIES "THE
RIGHT TO PASS FREELY FROM STATE TO STATE," INCLUDING THE RIGHT TO MOVE
FREELY INTO CALIFORNIA.  TWINING V. NEW JERSEY, 211 U.S. 78, 97;
CRANDALL V. NEVADA, 6 WALL.  35.  IF, AS I BELIEVE, THE MILITARY ORDERS
EXCLUDING HER FROM CALIFORNIA WERE INVALID AT THE TIME THEY WERE
ISSUED, THEY ARE INCREASINGLY OBJECTIONABLE AT THIS LATE DATE, WHEN THE
THREAT OF INVASION OF THE PACIFIC COAST AND THE FEARS OF SABOTAGE AND
ESPIONAGE HAVE GREATLY DIMINISHED.  FOR THE GOVERNMENT TO SUGGEST UNDER
THESE CIRCUMSTANCES THAT THE PRESENCE OF JAPANESE BLOOD IN A LOYAL
AMERICAN CITIZEN MIGHT BE ENOUGH TO WARRANT HER EXCLUSION FROM A PLACE
WHERE SHE WOULD OTHERWISE HAVE A RIGHT TO GO IS A POSITION I CANNOT
SANCTION. 

MR. JUSTICE ROBERTS. 

I CONCUR IN THE RESULT BUT I CANNOT AGREE WITH THE REASONS STATED IN
THE OPINION OF THE COURT FOR REACHING THAT RESULT. 

AS IN KOREMATSU V. UNITED STATES, ANTE, P. 214, THE COURT ENDEAVORS
TO AVOID CONSTITUTIONAL ISSUES WHICH ARE NECESSARILY INVOLVED.  THE
OPINION, AT GREAT LENGTH, ATTEMPTS TO SHOW THAT NEITHER THE EXECUTIVE
NOR THE LEGISLATIVE ARM OF THE GOVERNMENT AUTHORIZED THE DETENTION OF
THE RELATOR. 

1.  WITH RESPECT TO THE EXECUTIVE, IT IS SAID THAT NONE OF THE
EXECUTIVE ORDERS IN QUESTION SPECIFICALLY REFERRED TO DETENTION AND THE
COURT SHOULD NOT IMPLY ANY AUTHORIZATION OF IT.  THIS SEEMS TO ME TO
IGNORE PATENT FACTS.  AS THE OPINION DISCLOSES, THE EXECUTIVE BRANCH OF
THE GOVERNMENT NOT ONLY WAS AWARE OF WHAT WAS BEING DONE BUT IN FACT
THAT WHICH WAS DONE WAS FORMULATED IN REGULATIONS AND IN A SO-CALLED
HANDBOOK OPEN TO THE PUBLIC.  I HAD SUPPOSED THAT WHERE THUS OVERTLY
AND AVOWEDLY A DEPARTMENT OF THE GOVERNMENT ADOPTS A COURSE OF ACTION
UNDER A SERIES OF OFFICIAL REGULATIONS THE PRESUMPTION IS THAT, IN THIS
WAY, THE DEPARTMENT ASSERTS ITS BELIEF IN THE LEGALITY AND VALIDITY OF
WHAT IT IS DOING.  I THINK IT INADMISSIBLE TO SUGGEST THAT SOME
INFERIOR PUBLIC SERVANT EXCEEDED THE AUTHORITY GRANTED BY EXECUTIVE
ORDER IN THIS CASE.  SUCH A BASIS OF DECISION WILL RENDER EASY THE
EVASION OF LAW AND THE VIOLATION OF CONSTITUTIONAL RIGHTS, FOR WHEN
CONDUCT IS CALLED IN QUESTION THE OBVIOUS RESPONSE WILL BE THAT,
HOWEVER MUCH THE SUPERIOR EXECUTIVE OFFICIALS KNEW, UNDERSTOOD, AND
APPROVED THE CONDUCT OF THEIR SUBORDINATES, THOSE SUBORDINATES IN FACT
LACKED A DEFINITE MANDATE SO TO ACT.  IT IS TO HIDE ONE'S HEAD IN THE
SAND TO ASSERT THAT THE DETENTION OF RELATOR RESULTED FROM AN EXCESS OF
AUTHORITY BY SUBORDINATE OFFICIALS. 

2.  AS THE OPINION STATES, THE ACT OF MARCH 21, 1942, SAID NOTHING OF
DETENTION OR IMPRISONMENT, NOR DID EXECUTIVE ORDER NO. 9066 OF DATE
FEBRUARY 19, 1942, BUT I CANNOT AGREE THAT WHEN CONGRESS MADE
APPROPRIATIONS TO THE RELOCATION AUTHORITY, HAVING BEFORE IT THE
REPORTS, THE TESTIMONY AT COMMITTEE HEARINGS, AND THE FULL DETAILS OF
THE PROCEDURE OF THE RELOCATION AUTHORITY WERE EXPOSED IN GOVERNMENT
PUBLICATIONS, THESE APPROPRIATIONS WERE NOT A RATIFICATION AND AN
AUTHORIZATION OF WHAT WAS BEING DONE.  THE CASES CITED IN FOOTNOTE NO.
24 OF THE OPINION DO NOT JUSTIFY ANY SUCH CONCLUSION.  THE DECISION NOW
ADDS AN ELEMENT NEVER BEFORE THOUGHT ESSENTIAL TO CONGRESSIONAL
RATIFICATION, NAMELY, THAT IF CONGRESS IS TO RATIFY BY APPROPRIATION
ANY PART OF THE PROGRAMME OF AN EXECUTIVE AGENCY THE BILL MUST INCLUDE
A SPECIFIC ITEM REFERRING TO THAT PORTION OF THE PROGRAMME.  IN OTHER
WORDS, THE COURT WILL NOT ASSUME THAT CONGRESS RATIFIED THE PROCEDURE
OF THE AUTHORITIES IN THIS CASE IN THE ABSENCE OF SOME SUCH ITEM AS
THIS IN THE APPROPRIATION BILL:   - "FOR THE ADMINISTRATION OF THE
CONDITIONAL RELEASE AND PAROLE PROGRAMME IN FORCE IN RELOCATION
CENTERS."  IN THE LIGHT OF THE KNOWLEDGE CONGRESS HAD AS TO THE DETAILS
OF THE PROGRAMME, I THINK THE COURT IS UNJUSTIFIED IN STRAINING TO
CONCLUDE THAT CONGRESS DID NOT MEAN TO RATIFY WHAT WAS BEING DONE. 

3.  I CONCLUDE, THEREFORE, THAT THE COURT IS SQUARELY FACED WITH A
SERIOUS CONSTITUTIONAL QUESTION,  - WHETHER THE RELATOR'S DETENTION
VIOLATED THE GUARANTEES OF THE BILL OF RIGHTS OF THE FEDERAL
CONSTITUTION AND ESPECIALLY THE GUARANTEE OF DUE PROCESS OF LAW.  THERE
CAN BE BUT ONE ANSWER TO THAT QUESTION.  AN ADMITTEDLY LOYAL CITIZEN
HAS BEEN DEPRIVED OF HER LIBERTY FOR A PERIOD OF YEARS.  UNDER THE
CONSTITUTION SHE SHOULD BE FREE TO COME AND GO AS SHE PLEASES. 
INSTEAD, HER LIBERTY OF MOTION AND OTHER INNOCENT ACTIVITIES HAVE BEEN
PROHIBITED AND CONDITIONED.  SHE SHOULD BE DISCHARGED. 
..END :




ORDER OF CONDUCTORS V. PENN. R. CO., 323 U.S. 166 


NO. 200.  ARGUED NOVEMBER 15, 1944.  - DECIDED DECEMBER 11, 1944.  -
WRIT DISMISSED. 


1.  IN THE PRESENT POSTURE OF THIS CASE - NO REVIEW HAVING BEEN SOUGHT
OF THE JUDGMENT BELOW, NOW FINAL, SO FAR AS IT DISMISSED PETITIONERS'
SUIT AS TO THE NATIONAL MEDIATION BOARD - REMEDIES WHICH WOULD,
DIRECTLY OR INDIRECTLY, SET ASIDE THE BOARD'S CERTIFICATION OF
REPRESENTATIVES OF EMPLOYEES UNDER THE RAILWAY LABOR ACT ARE
INAPPROPRIATE.  P. 171. 

IT IS UNNECESSARY TO DECIDE, AND THE COURT DOES NOT DECIDE, WHETHER
THE REMEDIES SOUGHT WOULD BE AVAILABLE UNDER OTHER CIRCUMSTANCES. 

2.  UPON THE ALLEGATIONS OF THE COMPLAINT IN THIS CASE - THE NATIONAL
MEDIATION BOARD HAVING CERTIFIED A REPRESENTATIVE FOR COLLECTIVE
BARGAINING, AND THERE BEING NO ELECTION PENDING OR IN THE OFFING -
PETITIONERS ARE NOT ENTITLED TO AN INJUNCTION AGAINST FUTURE COERCION
BY A CARRIER OVER THE DESIGNATION OF REPRESENTATIVES OF EMPLOYEES UNDER
THE RAILWAY LABOR ACT.  P. 172. 

ORDER OF RAILWAY CONDUCTORS OF AMERICA ET AL. V. PENNSYLVANIA RAILROAD
CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, POST, P. 688, TO REVIEW THE DISMISSAL OF AN APPEAL, 141
F.2D 366, FROM A JUDGMENT DISMISSING THE COMPLAINT IN A SUIT FOR A
DECLARATORY JUDGMENT AND AN INJUNCTION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR A DECLARATORY JUDGMENT AND FOR AN INJUNCTION
BROUGHT BY THE ORDER OF RAILWAY CONDUCTORS OF AMERICA, AN
UNINCORPORATED ASSOCIATION OF RAILWAY EMPLOYES, AGAINST THE NATIONAL
MEDIATION BOARD, TWO OF ITS MEMBERS, THE PENNSYLVANIA RAILROAD, AND A
SUBSIDIARY RAILROAD COMPANY, AND THE BROTHERHOOD OF RAILROAD TRAINMEN,
AN UNINCORPORATED ASSOCIATION OF RAILWAY EMPLOYES.  FOR THE SAKE OF
BREVITY, THE PLAINTIFFS WILL BE CALLED "PLAINTIFF"; THE NATIONAL
MEDIATION BOARD AND ITS MEMBERS "BOARD"; THE TWO RAILROADS "RAILROAD,"
AND THE BROTHERHOOD OF RAILROAD TRAINMEN "TRAINMEN." 

THE COMPLAINT, AFTER STATING THE CAPACITY OF THE PARTIES, MAKES THE
FOLLOWING ALLEGATIONS, WHICH, AS WILL APPEAR, ARE, FOR PURPOSES OF
DECISION, TO BE TAKEN AS TRUE.  THE PLAINTIFF IS, AND FOR YEARS HAS
BEEN, THE ACCREDITED REPRESENTATIVE AND BARGAINING AGENT FOR THE CRAFT
OF ROAD CONDUCTORS OF THE RAILROAD, AND THE TRAINMEN THE REPRESENTATIVE
AND AGENT OF ROAD BRAKEMEN, YARD CONDUCTORS, YARD BRAKEMEN, BAGGAGEMEN
AND SWITCHTENDERS.  THE TWO ASSOCIATIONS HAVE JOINTLY NEGOTIATED
CONTRACTS WITH THE RAILROAD, AND SUCH A CONTRACT WAS JOINTLY NEGOTIATED
EFFECTIVE APRIL 1, 1927, AND REMAINS IN FORCE WITH RESPECT TO ROAD
CONDUCTORS, EXCEPT AS MODIFIED CONCERNING RATES OF PAY.  APRIL 18,
1941, THE RAILROAD NOTIFIED THE TWO UNIONS OF ITS DESIRE TO ALTER THE
CONTRACT AND, PURSUANT TO THE NOTICE, THE ACCREDITED REPRESENTATIVES OF
THE PARTIES MET IN CONFERENCE TO ADJUST CLASSIFICATIONS OF CONDUCTORS,
RATES OF PAY FOR THEM, AND THE CONTROL OF THE SO-CALLED "EXTRA BOARD"
FOR CONDUCTORS.  DUE TO DISAGREEMENTS BETWEEN THE TWO UNIONS AND THE
CONCURRENCE BY THE RAILROAD IN THE ATTITUDE OF THE TRAINMEN,
REPRESENTATIVES OF THE CONDUCTORS WITHDREW FROM THE JOINT NEGOTIATION
AND SERVED NOTICE OF WITHDRAWAL ON THE RAILROAD.  TWO WEEKS THEREAFTER
THE RAILROAD AND THE TRAINMEN SIGNED A NEW AGREEMENT COVERING THE
MATTERS UNDER CONSIDERATION.  CERTAIN PROVISIONS AGREED UPON BETWEEN
THE RAILROAD AND THE TRAINMEN WERE IN VIOLATION OF SECTIONS OF THE
RAILWAY LABOR ACT AND, THEREFORE, VOID, AND THE PRIOR AGREEMENT BETWEEN
THE CONDUCTORS AND THE RAILROAD REMAINED IN FORCE, BUT, NEVERTHELESS,
THE RAILROAD, SINCE EXECUTION OF THE NEW AGREEMENT WITH THE TRAINMEN,
HAS REFUSED TO BARGAIN WITH THE PLAINTIFF. 

THE RAILROAD AND THE TRAINMEN CONSPIRED AND CONFEDERATED IN AN
UNLAWFUL PROGRAMME DESIGNED TO EMBARRASS, DISCREDIT, AND WEAKEN THE
PLAINTIFF AND STRENGTHEN THE TRAINMEN AND THUS TO INFLUENCE, COERCE,
AND INTERFERE WITH THE CRAFT OF ROAD CONDUCTORS IN THEIR CHOICE OF A
BARGAINING REPRESENTATIVE, AND THE RAILROAD AND TRAINMEN WERE GUILTY OF
ACTS INTENDED, AND EFFECTIVE, TO THAT END.  SEPTEMBER 23, 1942, THE
TRAINMEN FILED WITH THE BOARD A REQUEST TO BE CERTIFIED AS THE
BARGAINING REPRESENTATIVE OF THE CRAFT OF ROAD CONDUCTORS. 

THE PLAINTIFF PROTESTED TO THE BOARD AGAINST THE HOLDING OF AN
ELECTION, CHARGING THAT THE RAILROAD WAS INTERFERING WITH, INFLUENCING,
AND COERCING CONDUCTORS BY UNLAWFULLY BARGAINING WITH THE TRAINMEN WITH
RESPECT TO ROAD CONDUCTORS' WORKING CONDITIONS, IN BREACH OF THE
EXISTING CONTRACT BETWEEN THE PLAINTIFF AND THE RAILROAD.  THE BOARD
ILLEGALLY AND WRONGFULLY RULED THAT IT HAD NO JURISDICTION TO CONSIDER
THE CHARGES, ORDERED AN ELECTION TO DETERMINE THE BARGAINING
REPRESENTATIVE FOR ROAD CONDUCTORS, HELD SUCH ELECTION, AND ISSUED A
CERTIFICATION BASED THEREON THAT TRAINMEN WAS THE AUTHORIZED
REPRESENTATIVE OF THE ROAD CONDUCTORS, WHICH ELECTION AND CERTIFICATION
ARE ILLEGAL, NULL AND VOID, INTER ALIA, BECAUSE THE BOARD REFUSED TO
PERFORM ITS DUTIES BY INVESTIGATING THE ALLEGED UNFAIR LABOR
PRACTICES. 

BASED ON THE FOREGOING ALLEGATIONS, THE RELIEF DEMANDED WAS (1) THAT
THE ELECTION AND CERTIFICATION BE ANNULLED, VACATED, AND SET ASIDE;
(2)(A) THAT THE BOARD AND ITS MEMBERS BE RESTRAINED FROM HOLDING ANY
ELECTION FOR A BARGAINING REPRESENTATIVE OF ROAD CONDUCTORS UNTIL IT
SHALL HAVE CONSIDERED THE UNFAIR LABOR PRACTICES AND FOUND THAT THEY DO
NOT AMOUNT TO INTERFERENCE, INFLUENCE OR COERCION, AND THAT (B), IN THE
ALTERNATIVE, THE COURT DECLARE THE PRACTICES COMPLAINED OF CONSTITUTE
UNLAWFUL INTERFERENCE OR COERCION OF THE CRAFT OF ROAD CONDUCTORS, AND
RESTRAIN THE BOARD FROM HOLDING AN ELECTION UNTIL THE BOARD DETERMINES,
AFTER INVESTIGATION AND HEARING, THAT SUCH INTERFERENCE, INFLUENCE OR
COERCION HAS CEASED; (3)(4) THAT IT BE DECLARED THAT CERTAIN PARAGRAPHS
OF THE AGREEMENT NEGOTIATED BY THE RAILROAD AND THE TRAINMEN WERE NOT
NEGOTIATED WITH THE ACCREDITED REPRESENTATIVE OF THE ROAD CONDUCTORS
AND WERE ILLEGAL INFRINGEMENTS UPON THE EXCLUSIVE RIGHT OF THE
PLAINTIFF, AS ACCREDITED BARGAINING AGENT, TO REPRESENT THE CONDUCTORS;
(5) THAT IT BE DECLARED THAT THE PLAINTIFF, AS SUCH REPRESENTATIVE, HAS
THE EXCLUSIVE RIGHT TO NEGOTIATE IN COLLECTIVE BARGAINING FOR THE
CONDUCTORS; (6) THAT THE RAILROAD BE PERMANENTLY ENJOINED FROM
BARGAINING OR MAKING OR MAINTAINING AGREEMENTS WITH TRAINMEN, OR ANY
OTHER UNION EXCEPT THE PLAINTIFF, ON BEHALF OF ROAD CONDUCTORS SO LONG
AS THE PLAINTIFF IS THE ACCREDITED REPRESENTATIVE OF THAT CLASS; (7)
THAT THE RAILROAD BE DIRECTED TO NEGOTIATE AND BARGAIN WITH THE
PLAINTIFF, AS REPRESENTATIVE OF THE ROAD CONDUCTORS, SO LONG AS THE
PLAINTIFF REMAINS SUCH REPRESENTATIVE; (8) THAT THE RAILROAD BE
ENJOINED FROM DIRECTLY OR INDIRECTLY COERCING, INFLUENCING, OR
INTERFERING WITH THE CRAFT OF ROAD CONDUCTORS AND THEIR CHOICE OF A
REPRESENTATIVE UNDER THE RAILWAY LABOR ACT; (9) FURTHER RELIEF. 

AFTER ANSWERS BY THE DEFENDANTS THE PLAINTIFF MOVED FOR SUMMARY
JUDGMENT ON THE PLEADINGS AND AN AFFIDAVIT WHICH ADDED NOTHING TO THE
MATTERS APPEARING IN THE PLEADINGS.  THE DISTRICT COURT, THOUGH OF
OPINION THAT THERE WAS NO GENUINE ISSUE, AS TO ANY MATERIAL FACT,
PRESENTED UNDER THE MOTION FOR JUDGMENT, NEVERTHELESS DENIED THE MOTION
AND ALSO DISMISSED THE COMPLAINT, BECAUSE IT HELD THAT THE FACTS
ALLEGED AND ADMITTED FAILED TO ESTABLISH A CAUSE OF ACTION. 

THE PLAINTIFF APPEALED TO THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA.  EACH APPELLEE FILED A MOTION TO DISMISS ON THE GROUND THAT
THE COURT LACKED JURISDICTION.  THE MOTIONS WERE GROUNDED ON THE
DECISIONS IN SWITCHMEN'S UNION V. MEDIATION BOARD, 320 U.S. 297 AND
RELATED CASES, FN1  WHICH WERE ANNOUNCED AFTER THE APPEAL HAD BEEN
TAKEN.  THE PLAINTIFF ANSWERED THE MOTIONS.  THE COURT, BEING OF
OPINION THAT, UNDER THE RULINGS IN THE SWITCHMEN'S UNION CASE AND
OTHERS DECIDED AT THE SAME TERM,  FN2  IT WAS WITHOUT JURISDICTION OF
THE CONTROVERSY, DISMISSED THE APPEAL.  FN3 

THE PLAINTIFF APPLIED TO THIS COURT FOR CERTIORARI TO REVIEW THE
JUDGMENT DISMISSING THE TRAINMEN AND THE RAILROAD.  IT DID NOT SEEK
REVIEW OF THE JUDGMENT GRANTING THE BOARD'S MOTION, AND DISMISSING THE
BOARD.  THAT JUDGMENT IS NOW FINAL AND BEYOND REVIEW HERE. 

THE PLAINTIFF BASED ITS CLAIMS TO RELIEF ON SEC. 2 THIRD OF THE
RAILWAY LABOR ACT, WHICH BANS INTERFERENCE, INFLUENCE, OR COERCION BY
EITHER PARTY IN RESPECT OF DESIGNATION OF REPRESENTATIVES BY THE
OTHER.  THE BOARD, IN DENYING JURISDICTION, EVIDENTLY RELIED ON A
PORTION OF SEC. 2 NINTH, DEALING WITH ITS FUNCTION TO INVESTIGATE
DISPUTES CONCERNING REPRESENTATION OF EMPLOYES, TO HOLD ELECTIONS, AND
TO CERTIFY THE AUTHORIZED REPRESENTATIVE, AS LIMITING ITS JURISDICTION
TO THE ACTUAL CONDUCT OF THE INVESTIGATION AND ELECTION AND PRECLUDING
IT FROM INVESTIGATING PRIOR ACTION BY ANY OF THE PARTIES.  THE RAILROAD
RELIED UPON SEC. 2 TENTH, WHICH IT ASSERTS CREATES REMEDIES FOR
VIOLATION OF SEC. 2 THIRD THAT ARE EXCLUSIVE OF ALL OTHER REMEDIES. 
THE RELEVANT PORTIONS OF THE SECTIONS THUS RELIED ON ARE QUOTED IN THE
MARGIN.  FN4  THE CONTENTIONS SO MADE RAISE IMPORTANT QUESTIONS, BUT WE
EXPRESS NO OPINION ON THEM SINCE, FOR REASONS ABOUT TO BE STATED, WE
HOLD THAT WE DO NOT REACH THEM WITHIN THE FRAMEWORK OF THIS CASE. 

THE FIRST AND SECOND PRAYERS FOR RELIEF SEEK THE ANNULMENT AND
CANCELLATION OF THE BOARD'S CERTIFICATION AND AN INJUNCTION AGAINST
BOARD ACTION.  PLAINLY NO SUCH RELIEF SHOULD BE GRANTED, IF AT ALL, IN
THE ABSENCE OF THE BOARD AS A PARTY.  BECAUSE OF THE FAILURE TO APPEAL
FROM THE ORDER DISMISSING IT, THE BOARD IS NOT, AND NEVER CAN BE, A
PARTY TO THIS CAUSE, EITHER HERE OR IN THE COURTS BELOW. 

THE THIRD, FOURTH AND FIFTH PRAYERS IN EFFECT REQUEST A DECLARATION
THAT THE PLAINTIFF IS THE REPRESENTATIVE OF THE ROAD CONDUCTORS FOR
BARGAINING NOTWITHSTANDING THE BOARD'S CERTIFICATION TO THE CONTRARY. 
SINCE THE ELECTION AND CERTIFICATION COULD NOT BE ANNULLED WITHOUT
MAKING THE BOARD A PARTY, THAT RESULT CANNOT BE OBTAINED BY INDIRECTION
BY HAVING THE COURT SUBSTITUTE ITSELF FOR THE BOARD, OR DECLARE,
INDEPENDENTLY OF THE BOARD, WHO IS THE ACCREDITED REPRESENTATIVE OF THE
PLAINTIFF. 

THE SIXTH, SEVENTH, AND EIGHTH PRAYERS HAVE A SIMILAR OBJECT.  THEY
ASK AN INJUNCTION TO PREVENT THE RAILROAD FROM BARGAINING WITH TRAINMEN
AND A MANDATORY INJUNCTION THAT IT SHALL BARGAIN WITH THE PLAINTIFF AS
REPRESENTATIVE OF ROAD CONDUCTORS.  SUCH A DECREE WOULD BE IN THE TEETH
OF THE BOARD'S CERTIFICATION.  TO GRANT SUCH A DECREE WOULD SEEM TO BE
IN CONTRAVENTION OF THE SWITCHMEN'S UNION CASE, SUPRA, AND IN ANY EVENT
SUCH ACTION SHOULD NOT BE TAKEN IN THE ABSENCE OF THE BOARD. 

THE EIGHTH PRAYER SEEKS AN INJUNCTION AGAINST FUTURE ACTS OF THE
RAILROAD COERCIVE OF THE CLASS OF ROAD CONDUCTORS IN CHOOSING A
BARGAINING REPRESENTATIVE.  AS WE HAVE SEEN, AN ELECTION HAS BEEN HELD,
A REPRESENTATIVE CHOSEN AND THE CHOICE CERTIFIED BY THE BOARD.  NO
ELECTION IS NOW PENDING AND THERE IS NO AVERMENT IN THE BILL THAT AN
ELECTION IS ABOUT TO BE HELD OR THAT THE RAILROAD IS ABOUT TO COMMIT
ANY ACT IN VIOLATION OF THE PROSCRIPTION OF SEC. 2 THIRD.  ALL THAT THE
BILL DOES IS TO RECITE WHAT THE RAILROAD HAS HERETOFORE DONE IN ADVANCE
OF THE ELECTION ALREADY HELD AND THE CERTIFICATION BASED UPON IT.  NO
CASE IS STATED REQUIRING THE ENTRY OF THE INJUNCTION PRAYED. 

THE ARGUMENTS IN THIS CASE COVERED A WIDE RANGE AND EMBODIED
SUGGESTIONS AS TO POSSIBLE REMEDIES SHOULD THE BOARD ACT OR REFUSE TO
ACT ON CHARGES OF COERCION ANTECEDENT TO ELECTION AND ON POSSIBLE
REMEDIES TO DEPRIVE AN EMPLOYER GUILTY OF INFLUENCE AND COERCION OF THE
BENEFITS OF THE ELECTION AND THE BOARD'S CERTIFICATION. 

WE DO NOT REACH THE QUESTION RESERVED IN GENERAL COMMITTEE V. M.-K.
T.R. CO., 320 U.S. 323, 336, NOTE 12, WHETHER THE COURTS MAY AFFORD
RELIEF WHERE THE BOARD REFUSES OR FAILS TO PERFORM A FUNCTION DELEGATED
TO IT BY CONGRESS, SINCE THE BOARD IS NOT A PARTY.  NEITHER THE
PLEADINGS NOR THE PRAYERS DISCLOSE A SITUATION IN WHICH THE QUESTION OF
THE AVAILABILITY OF SUCH REMEDIES ANTECEDENT TO, OR SUBSEQUENT TO, THE
ELECTION OR CERTIFICATION NEED BE DISCUSSED OR DECIDED. 

FN1 GENERAL COMMITTEE V. M.-K.-T. R. CO., 320 U.S. 323; GENERAL
COMMITTEE V. SOUTHERN PACIFIC CO., 320 U.S. 338. 

FN2  THE COURT CITED IN ADDITION TO THE CASES RELIED ON BY THE
DEFENDANTS, BROTHERHOOD OF CLERKS V. UNITED TRANSPORT SERVICE
EMPLOYEES, 320 U.S. 715. 

FN3  141 F.2D 366. 

FN4  SEC. 2 THIRD.  "REPRESENTATIVES, FOR THE PURPOSES OF THIS
CHAPTER, SHALL BE DESIGNATED BY THE RESPECTIVE PARTIES WITHOUT
INTERFERENCE, INFLUENCE, OR COERCION BY EITHER PARTY OVER THE
DESIGNATION OF REPRESENTATIVES BY THE OTHER; AND NEITHER PARTY SHALL IN
ANY WAY INTERFERE WITH, INFLUENCE, OR COERCE THE OTHER IN ITS CHOICE OF
REPRESENTATIVES...."  45 U.S.C. SEC. 152 THIRD. 

SEC. 2 NINTH.  "...  THE MEDIATION BOARD SHALL BE AUTHORIZED TO TAKE
A SECRET BALLOT OF THE EMPLOYEES INVOLVED, OR TO UTILIZE ANY OTHER
APPROPRIATE METHOD OF ASCERTAINING THE NAMES OF THEIR DULY DESIGNATED
AND AUTHORIZED REPRESENTATIVES IN SUCH MANNER AS SHALL INSURE THE
CHOICE OF REPRESENTATIVES BY THE EMPLOYEES WITHOUT INTERFERENCE,
INFLUENCE, OR COERCION EXERCISED BY THE CARRIER  ...."  45 U.S.C. SEC.
152 NINTH. 

SEC. 2 TENTH.  "THE WILLFUL FAILURE OR REFUSAL OF ANY CARRIER, ITS
OFFICERS OR AGENTS, TO COMPLY WITH THE TERMS OF THE THIRD, FOURTH,
FIFTH, SEVENTH, OR EIGHTH PARAGRAPH OF THIS SECTION SHALL BE A
MISDEMEANOR  ...  IT SHALL BE THE DUTY OF ANY DISTRICT ATTORNEY OF THE
UNITED STATES TO WHOM ANY DULY DESIGNATED REPRESENTATIVE OF A CARRIER'S
EMPLOYEES MAY APPLY TO INSTITUTE IN THE PROPER COURT AND TO PROSECUTE
UNDER THE DIRECTION OF THE ATTORNEY GENERAL OF THE UNITED STATES, ALL
NECESSARY PROCEEDINGS FOR THE ENFORCEMENT OF THE PROVISIONS OF THIS
U.S.C. SEC. 152 TENTH. 

THE WRIT IS ACCORDINGLY DISMISSED. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 
..END :
























U.S. V. CRESCENT AMUSEMENT CO., 323 U.S. 173 


ARGUED NOVEMBER 6, 7, 1944.  - DECIDED DECEMBER 11, 1944.  - NO. 17
DISMISSED.  - NO. 18 REVERSED.  - NO. 19 AFFIRMED. 


1.  THE MOTIONS IN THE DISTRICT COURT TO AMEND THE FINDINGS IN THIS
CASE RAISED QUESTIONS OF SUBSTANCE, AND AN APPEAL APPLIED FOR AND
ALLOWED WHILE SUCH MOTIONS WERE PENDING WAS PREMATURE AND MUST BE
DISMISSED.  P. 177. 

2.  THAT THE DISTRICT COURT HAS ALLOWED A PREMATURE APPEAL DOES NOT
DEPRIVE IT OF JURISDICTION TO ALLOW A SUBSEQUENT AND TIMELY APPEAL.  P.
177. 

3.  THE SHERMAN ANTITRUST ACT MAY APPLY TO THE BUSINESS OF EXHIBITING
MOTION PICTURES, WHEN A REGULAR INTERCHANGE OF FILMS IN INTERSTATE
COMMERCE IS INVOLVED.  P. 180. 

4.  ON APPEAL THIS COURT CONSIDERS ONLY THE ALLEGED ERRORS WHICH HAVE
BEEN INCLUDED IN THE ASSIGNMENTS OF ERROR.  P. 180. 

5.  THE EVIDENCE SUSTAINS THE DISTRICT COURT'S FINDINGS OF A
CONSPIRACY OF THE DEFENDANT EXHIBITORS OF MOTION PICTURES, AND CERTAIN
OFFICERS THEREOF, UNREASONABLY TO RESTRAIN INTERSTATE TRADE AND
COMMERCE IN MOTION PICTURE FILMS AND TO MONOPOLIZE THE EXHIBITION OF
FILMS IN THE AREAS IN QUESTION, IN VIOLATION OF SEC. 1 AND SEC. 2 OF
THE SHERMAN ACT.  P. 181. 

(A)  THERE WAS AMPLE EVIDENCE THAT THE COMBINATION USED ITS BUYING
POWER FOR THE PURPOSE EITHER OF RESTRICTING THE ABILITY OF ITS
COMPETITORS TO LICENSE FILMS OR OF ELIMINATING COMPETITION BY ACQUIRING
THE COMPETITOR'S PROPERTY OR OTHERWISE.  P. 181. 

(B)  WHETHER THE DISTRIBUTORS WERE TECHNICALLY CO-CONSPIRATORS IS
IMMATERIAL, SINCE ACTION BY A COMBINATION OF EXHIBITORS TO OBTAIN AN
AGREEMENT WITH A DISTRIBUTOR WHEREBY COMMERCE WITH A COMPETING
EXHIBITOR IS SUPPRESSED OR RESTRAINED IS ITSELF A CONSPIRACY IN
RESTRAINT OF TRADE AND A CONSPIRACY TO MONOPOLIZE A PART OF THE TRADE
OR COMMERCE AMONG THE STATES, EACH OF WHICH IS PROHIBITED BY THE
SHERMAN ACT.  P. 183. 

(C)  EVEN IF ERROR BE ASSUMED IN THE INTRODUCTION OF CERTAIN EVIDENCE
- CONSISTING OF LETTERS OR REPORTS WRITTEN BY EMPLOYEES OF CERTAIN OF
THE MAJOR DISTRIBUTORS TO OTHER EMPLOYEES OR OFFICERS IN THE SAME
COMPANY STATING REASONS WHY THE DISTRIBUTOR WAS DISCRIMINATING AGAINST
AN INDEPENDENT AND IN FAVOR OF THE DEFENDANTS - THERE IS SUFFICIENT
OTHER EVIDENCE TO ESTABLISH THE RESTRAINTS OF TRADE AND MONOPOLISTIC
PRACTICES, AND THE BURDEN OF SHOWING PREJUDICE HAS NOT BEEN SUSTAINED. 
P. 184. 

(D)  THOUGH THE FINDINGS LEAVE MUCH TO BE DESIRED IN THE LIGHT OF THE
FUNCTION OF THE TRIAL COURT, THEY ARE SUPPORTED BY THE EVIDENCE AND
MUST THEREFORE BE SUSTAINED.  P. 184. 

6.  UPON CONSIDERATION OF OBJECTIONS TO PROVISIONS OF THE DECREE IN
THIS CASE, HELD: 

(1)  LEST THE PUBLIC INTEREST BE NOT ADEQUATELY PROTECTED, THE DECREE
SHOULD BE REVISED SO AS TO PROHIBIT FUTURE ACQUISITIONS OF A FINANCIAL
INTEREST IN ADDITIONAL THEATRES OUTSIDE OF NASHVILLE "EXCEPT AFTER AN
AFFIRMATIVE SHOWING THAT SUCH ACQUISITION WILL NOT UNREASONABLY
RESTRAIN COMPETITION."  P. 185. 

(2)  PROVISIONS OF THE DECREE ENJOINING THE DEFENDANT EXHIBITORS FROM
MAKING FRANCHISES WITH CERTAIN DISTRIBUTORS "WITH THE PURPOSE AND
EFFECT OF MAINTAINING THEIR THEATRE MONOPOLIES AND PREVENTING
INDEPENDENT THEATRES FROM COMPETING WITH THEM" AND FROM ENTERING INTO
"ANY SIMILAR COMBINATIONS AND CONSPIRACIES HAVING SIMILAR PURPOSES AND
OBJECTS"; FROM COMBINING, IN LICENSING FILMS, THEIR CLOSED TOWNS WITH
THEIR COMPETITIVE SITUATIONS "FOR THE PURPOSE AND WITH THE EFFECT OF
COMPELLING THE MAJOR DISTRIBUTORS TO LICENSE FILMS ON A NON-COMPETITIVE
BASIS IN COMPETITIVE SITUATIONS AND TO DISCRIMINATE" AGAINST THE
INDEPENDENTS; AND ENJOINING EACH DEFENDANT EXHIBITOR "FROM CONDITIONING
THE LICENSING OF FILMS IN ANY COMPETITIVE SITUATION (OUTSIDE NASHVILLE)
UPON THE LICENSING OF FILMS IN ANY OTHER THEATRE SITUATION" - ARE
SUSTAINED.  P. 187. 

(A)  THE FRANCHISE AGREEMENTS AND THE LICENSING SYSTEM WERE THE CHIEF
INSTRUMENTS OF THE UNLAWFUL PRACTICES, AND IT WAS THE DUTY OF THE COURT
TO ENJOIN THEIR CONTINUANCE AND RESUMPTION.  P. 188. 

(B)  THESE PROVISIONS OF THE DECREE ARE NOT UNENFORCEABLE AS TOO
VAGUE AND GENERAL.  P. 188. 

(3)  THE DIVESTITURE PROVISIONS OF THE DECREE - REQUIRING EACH
CORPORATE EXHIBITOR TO DIVEST ITSELF OF THE OWNERSHIP OF ANY STOCK OR
OTHER INTEREST IN ANY OTHER CORPORATE DEFENDANT OR AFFILIATED
CORPORATION, AND ENJOINING IT FROM ACQUIRING ANY INTEREST IN THOSE
COMPANIES; REQUIRING ONE OF THE INDIVIDUAL DEFENDANTS TO RESIGN AS AN
OFFICER OF ANY CORPORATION (EXCEPT CRESCENT) WHICH IS AFFILIATED WITH
ANY DEFENDANT EXHIBITOR AND ENJOINING HIM FROM ACQUIRING CONTROL OVER
ANY SUCH AFFILIATE BY ACTING AS OFFICER OR OTHERWISE; REQUIRING ANOTHER
OF THE INDIVIDUAL DEFENDANTS TO RESIGN AS AN OFFICER OF THE AFFILIATES
(EXCEPT ONE CORPORATION OF HIS CHOICE) AND ENJOINING HIM FROM ACQUIRING
ANY CONTROL OVER THE OTHERS BY ACTING AS AN OFFICER OR OTHERWISE; AND
ALLOWING A YEAR FROM THE DATE OF THE DECREE FOR COMPLETION OF THE
DIVESTITURE - ARE SUSTAINED.  P. 189. 

(A)  IN THIS TYPE OF SHERMAN ACT CASE, THE GOVERNMENT SHOULD NOT BE
CONFINED TO AN INJUNCTION AGAINST FURTHER VIOLATIONS; DISSOLUTION OF
THE COMBINATION MAY BE ORDERED WHERE THE CREATION OF THE COMBINATION IS
ITSELF THE VIOLATION.  P. 189. 

(B)  THOSE WHO VIOLATE THE ACT MAY NOT REAP THE BENEFITS OF THEIR
VIOLATIONS AND AVOID AN UNDOING OF THEIR UNLAWFUL PROJECT ON THE PLEA
OF HARDSHIP OR INCONVENIENCE.  P. 189. 

(C)  THE FACT THAT MINORITY STOCKHOLDERS OF THE AFFILIATED COMPANIES
ARE NOT PARTIES TO THE SUIT DOES NOT BAR A SEPARATION OF THE
COMPANIES.  P. 190. 

(D)  THE REQUIREMENT THAT TWO OF THE DEFENDANT CORPORATE EXHIBITORS
SELL THEIR RESPECTIVE HALF-INTERESTS IN TWO COMPANIES WHICH WERE NOT
MADE PARTIES TO THE PROCEEDINGS IS SUSTAINED, SINCE IT DOES NOT APPEAR
ON THIS RECORD THAT ANY LEGAL RIGHT OF ANY OTHER STOCKHOLDER WOULD BE
AFFECTED.  P. 190. 

UNITED STATES V. CRESCENT AMUSEMENT CO. ET AL. 

NOS. 17 AND 18.  APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF TENNESSEE* . 

*TOGETHER WITH NO. 19, CRESCENT AMUSEMENT CO. ET AL. V. UNITED
STATES, ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE MIDDLE DISTRICT OF TENNESSEE. 

DIRECT APPEALS UNDER THE EXPEDITING ACT FROM A DECREE AGAINST
DEFENDANTS IN A CIVIL SUIT UNDER THE SHERMAN ANTITRUST ACT.  TWO OF THE
APPEALS WERE TAKEN BY THE GOVERNMENT, THE OTHER BY CERTAIN OF THE
DEFENDANTS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS CIVIL SUIT AGAINST NINE AFFILIATED
COMPANIES (WHOM WE WILL CALL THE EXHIBITORS) OPERATING MOTION PICTURE
THEATRES IN SOME 70 SMALL TOWNS IN ALABAMA, ARKANSAS, KENTUCKY,
MISSISSIPPI, AND TENNESSEE; AGAINST CERTAIN OFFICERS OF THESE
COMPANIES; AND AGAINST EIGHT MAJOR DISTRIBUTORS OF MOTION PICTURE
FILMS, CHARGING THEM WITH A CONSPIRACY UNREASONABLY TO RESTRAIN
INTERSTATE TRADE AND COMMERCE IN MOTION-PICTURE FILMS AND TO MONOPOLIZE
THE EXHIBITION OF FILMS IN THIS AREA IN VIOLATION OF SEC. 1 AND SEC. 2
OF THE SHERMAN ACT.  26 STAT. 209, 15 U.S.C. SECS. 1, 2.  THE SUIT WAS
DISMISSED AGAINST FIVE OF THE DISTRIBUTORS ON MOTION OF THE UNITED
STATES.  FN1  OF THE OTHER THREE THE COURT FOUND THAT ONLY ONE HAD
VIOLATED THE SHERMAN ACT.  THE COURT ALSO FOUND THAT SEVEN OF THE
EXHIBITORS AND THREE OF THE INDIVIDUAL DEFENDANTS HAD VIOLATED THE
SHERMAN ACT SUBSTANTIALLY AS CHARGED.  IT ENTERED A DECREE AGAINST
THEM.  FROM THE JUDGMENT ENTERED THE UNITED STATES, SIX OF THE
EXHIBITORS, AND THREE INDIVIDUAL DEFENDANTS APPEAL DIRECTLY TO THIS
COURT UNDER SEC. 2 OF THE ACT OF FEBRUARY 11, 1903, 32 STAT. 823, 15
U.S.C. SEC. 29 AND SEC. 238 OF THE JUDICIAL CODE, AS AMENDED BY THE ACT
OF FEBRUARY 13, 1925, 43 STAT. 936, 938, 28 U.S.C. SEC. 345. 

I. BEFORE WE COME TO THE MERITS THERE IS A PRELIMINARY QUESTION AS TO
WHETHER THE APPEAL OF THE UNITED STATES IN NO. 17 IS PREMATURE.  THE
DISTRICT COURT ENTERED A FINAL JUDGMENT IN THIS CASE ON MAY 17, 1943. 
ON THE SIXTIETH DAY AFTER JUDGMENT THERE WERE MOTIONS PENDING TO AMEND
THE FINDINGS.  ON THAT DAY THE APPEAL WAS APPLIED FOR AND ALLOWED.  ON
AUGUST 30, 1943, THE COURT RULED ON THE MOTIONS TO AMEND ITS FINDINGS. 
WITHIN SIXTY DAYS THEREAFTER THE UNITED STATES APPLIED FOR THE APPEAL
IN NO. 18 AND IT WAS ALLOWED.  THE APPEAL IN NO. 17 WAS FILED HERE AT
THE SAME TIME AS THAT IN NO. 18.  THE APPELLEES MOVE TO DISMISS NO. 17
ON THE GROUND THAT IT WAS PREMATURE AND TO DISMISS NO. 18 ON THE GROUND
THAT THE DISTRICT COURT BY ALLOWING THE FIRST APPEAL LOST JURISDICTION
OF THE CAUSE AND WAS WITHOUT POWER TO ALLOW A FURTHER APPEAL.  WE THINK
THE MOTION TO DISMISS THE APPEAL IN NO. 17 MUST BE GRANTED AND THE
MOTION TO DISMISS THE APPEAL IN NO. 18 DENIED. 

THE MOTION TO AMEND THE FINDINGS TOLLED THE TIME TO APPEAL IF IT WAS
NOT ADDRESSED TO "MERE MATTERS OF FORM BUT RAISED QUESTIONS OF
SUBSTANCE," E.G., IF IT SOUGHT A "RECONSIDERATION OF CERTAIN BASIC
FINDINGS OF FACT AND THE ALTERATION OF THE CONCLUSIONS OF THE COURT." 
LEISHMAN V. ASSOCIATED ELECTRIC CO., 318 U.S. 203, 205.  AN EXAMINATION
OF THE MOTION MAKES PLAIN THAT MATTERS OF SUBSTANCE WERE RAISED.  THE
APPEAL IN NO. 17 WAS ACCORDINGLY PREMATURE.  ZIMMERN V. UNITED STATES,
298 U.S. 167.  BUT IT DOES NOT FOLLOW THAT THE DISTRICT COURT HAD NO
JURISDICTION TO ALLOW THE APPEAL IN NO. 18.  AN APPEAL CAN HARDLY BE
PREMATURE (AND THEREFORE A NULLITY) HERE AND YET NOT PREMATURE (AND
THEREFORE BINDING) BELOW.  UNDER THESE CIRCUMSTANCES AN APPELLANT MAY
RELY UPON THE LATER APPEAL (OHIO PUBLIC SERVICE CO. V. FRITZ, 274 U.S.
12) AND NOT RUN THE RISK OF LOSING AN APPELLATE REVIEW ON THE APPEAL
FIRST ALLOWED.  CF. WILENTZ V. SOVEREIGN CAMP, 306 U.S. 573. 

II.  WE TURN TO THE MERITS.  CRESCENT, THE PRINCIPAL EXHIBITOR  FN2,
OWNS 50% OF THE STOCK OF CUMBERLAND AND LYRIC.  THE MAJORITY OF
CRESCENT'S STOCK IS OWNED BY DEFENDANT SUDEKUM, BY CERTAIN OF HIS
RELATIVES, AND BY DEFENDANTS STENGEL AND BAULCH.  PRIOR TO 1937
CRESCENT OWNED ALMOST TWO-THIRDS OF THE STOCK OF MUSCLE SHOALS; SINCE
THAT TIME MUSCLE SHOALS WAS RUN AS A PARTNERSHIP IN WHICH SUDEKUM'S
WIFE HAD A HALF-INTEREST.  DEFENDANT STENGEL, SUDEKUM'S SON-IN-LAW, IS
THE RECORD HOLDER OF ALL OF ROCKWOOD'S STOCK.  ROCKWOOD OWNS 50% OF THE
STOCK OF CHEROKEE AND KENTUCKY AND OF FIVE OTHER THEATRE CORPORATIONS. 
ROCKWOOD WAS OPERATED AS A "VIRTUAL BRANCH" OF THE CRESCENT BUSINESS
UNDER THE IMMEDIATE SUPERVISION OF STENGEL.  SUDEKUM IS PRESIDENT OF
CRESCENT, CUMBERLAND, AND LYRIC; STENGEL IS AN OFFICER AND DIRECTOR OF
KENTUCKY AND CHEROKEE.  SUDEKUM WAS PAID $200 A WEEK BY CHEROKEE "FOR
HIS ADVICE AND ASSISTANCE IN RUNNING THE BUSINESS."  EACH OF THESE
COMPANIES WAS AN EXHIBITOR OPERATING MOTION PICTURE THEATRES. 

IN THE FIVE-YEAR PERIOD ENDED IN AUGUST 1939 WHEN THIS BILL WAS FILED
THE EXHIBITORS EXPERIENCED A RATHER RAPID GROWTH - IN THE NUMBER OF
TOWNS WHERE THEIR THEATRES WERE OPERATED; IN THE NUMBER OF TOWNS WHERE
THEY OPERATED WITHOUT COMPETITION; IN THEIR EARNINGS AND SURPLUS.  THE
UNITED STATES CLAIMS THAT THAT GROWTH WAS THE PRODUCT OF RESTRAINTS OF
TRADE IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT AND OF MONOPOLISTIC
PRACTICES IN VIOLATION OF SEC. 2. 

THE DISTRICT COURT FOUND THAT EACH OF THE SEVEN EXHIBITORS HAD
VIOLATED THE SHERMAN ACT BY 

"A.  CREATING AND MAINTAINING AN UNREASONABLE MONOPOLY OF THE
BUSINESS OF OPERATING THEATRES IN THE TOWNS OF TENNESSEE, NORTHERN
ALABAMA, AND CENTRAL AND WESTERN KENTUCKY, IN WHICH EACH HAS THEATRES. 

"B.  COMBINING ITS CLOSED TOWNS WITH ITS COMPETITIVE SITUATIONS IN
LICENSING FILMS FOR THE PURPOSE AND WITH THE EFFECT OF COMPELLING THE
MAJOR DISTRIBUTORS TO LICENSE FILMS ON A NON-COMPETITIVE BASIS IN
COMPETITIVE SITUATIONS AND TO DISCRIMINATE AGAINST ITS INDEPENDENT
COMPETITORS IN LICENSING FILMS. 

"C.  COERCING OR ATTEMPTING TO COERCE INDEPENDENT OPERATORS INTO
SELLING OUT TO IT, OR TO ABANDON PLANS TO COMPETE WITH IT BY PREDATORY
PRACTICES."  THE COURT FOUND THAT THESE VIOLATIONS WERE EFFECTED (A) BY
COMBINING WITH EACH OTHER AND WITH CERTAIN MAJOR DISTRIBUTORS IN MAKING
FRANCHISES, I.E. TERM CONTRACTS FOR THE LICENSING OF FILMS, WITH THE
PURPOSE AND EFFECT OF MAINTAINING THEIR THEATRE MONOPOLIES AND
PREVENTING INDEPENDENTS FROM COMPETING WITH THEM; (B) BY COMBINING WITH
EACH OTHER FOR THE PURPOSE OF DIVIDING THE TERRITORY IN WHICH THEATRES
MIGHT BE OPERATED BY ANY OF THEM; (C) BY COMBINING WITH EACH OTHER FOR
THE PURPOSE AND WITH THE EFFECT OF ELIMINATING, SUPPRESSING, AND
PREVENTING INDEPENDENTS FROM COMPETING IN THE TERRITORY IN WHICH EACH
OPERATED; AND (D) BY COMBINING WITH EACH OTHER AND WITH CERTAIN MAJOR
DISTRIBUTORS IN LICENSING FILMS FOR THE PURPOSE AND WITH THE EFFECT OF
MAINTAINING THEIR THEATRE MONOPOLIES AND PREVENTING INDEPENDENTS FROM
COMPETING WITH THEM.  THREE OF THE INDIVIDUAL DEFENDANTS WERE FOUND TO
HAVE PARTICIPATED ACTIVELY IN THESE VIOLATIONS. 

INTERSTATE COMMERCE WAS FOUND TO HAVE BEEN EMPLOYED IN CONSUMMATING
THE CONSPIRACY.  IN THE SELLING SEASON EACH YEAR THE DISTRIBUTOR'S
SALESMEN SOLICIT CONTRACTS FROM THE EXHIBITORS FOR THE DISTRIBUTOR'S
APPROVAL BY THE HOME OFFICE.  AS THE FILMS ARE RELEASED FOR EXHIBITION,
PRINTS ARE SENT TO THE NUMEROUS EXCHANGES LOCATED IN VARIOUS STATES AND
DELIVERED BY THEM TO THE EXHIBITORS IN THEIR RESPECTIVE AREAS.  FN3
THE EXHIBITOR ORDINARILY RETURNS THE PRINT TO THE DISTRIBUTOR'S
EXCHANGE, FROM WHICH IT IS SUPPLIED TO OTHER THEATRES.  THE FINDINGS
ARE WHOLLY ADEQUATE TO ESTABLISH THAT THE BUSINESS OF THE EXHIBITORS
INVOLVES A REGULAR INTERCHANGE OF FILMS IN INTERSTATE COMMERCE.  AS WE
SHALL SEE, THAT COURSE OF BUSINESS MAY BE SUFFICIENT TO MAKE THE
SHERMAN ACT APPLICABLE TO THE BUSINESS OF EXHIBITING MOTION PICTURES. 
INTERSTATE CIRCUIT V. UNITED STATES, 306 U.S. 208.  CF. BINDERUP V.
PATHE EXCHANGE, 263 U.S. 291.  THE CRUCIAL ISSUES IN THE PRESENT CASE
RELATE TO THE EVIDENCE AND THE APPROPRIATENESS OF THE DECREE. 

III.  THE DEFENDANTS ASSERT THAT THE UNITED STATES FAILED TO PROVE
THE ALLEGATIONS OF THE COMPLAINT AS AMPLIFIED BY THE BILL OF
PARTICULARS.  BUT NO SUCH ERROR WAS ASSIGNED.  THE ONLY ASSIGNMENTS ON
THIS PHASE OF THE CASE RELATE TO SUBSIDIARY FINDINGS WHICH ARE PARTS OF
SIXTEEN OF THE ONE HUNDRED AND EIGHTY-SEVEN FINDINGS OF FACT CONTAINED
IN ONE HUNDRED AND TWENTY PRINTED PAGES.  HENCE THEY ARE THE ONLY ONES
WE WILL CONSIDER.  SEABOARD AIR LINE R. CO. V. WATSON, 287 U.S. 86, 91;
E.R. SQUIBB & SONS V. MALLINCKRODT CHEMICAL WORKS, 293 U.S. 190; RULE
9, 275 U.S. 600.  WE HAVE EXAMINED THEM AND CONCLUDE THAT THEY DO NOT
CONSTITUTE REVERSIBLE ERROR.  IF ANY MODIFICATIONS WERE MADE IN THESE
SUBSIDIARY FINDINGS THEY WOULD NOT BE BASIC OR ESSENTIAL ONES. 

THE CRUX OF THE GOVERNMENT'S CASE WAS THE USE OF THE BUYING POWER OF
THE COMBINATION FOR THE PURPOSE OF ELIMINATING COMPETITION WITH THE
EXHIBITORS AND ACQUIRING A MONOPOLY IN THE AREAS IN QUESTION.  THERE
WAS AMPLE EVIDENCE THAT THE COMBINATION USED ITS BUYING POWER FOR THE
PURPOSE EITHER OF RESTRICTING THE ABILITY OF ITS COMPETITORS TO LICENSE
FILMS OR OF ELIMINATING COMPETITION BY ACQUIRING THE COMPETITOR'S
PROPERTY OR OTHERWISE.  FOR EXAMPLE, THE DEFENDANTS WOULD INSIST THAT A
DISTRIBUTOR GIVE THEM MONOPOLY RIGHTS IN TOWNS WHERE THEY HAD
COMPETITION OR ELSE DEFENDANTS WOULD NOT GIVE THE DISTRIBUTOR ANY
BUSINESS IN THE CLOSED TOWNS WHERE THEY HAD NO COMPETITION.  THE
COMPETITOR NOT BEING ABLE TO RENEW HIS CONTRACT FOR FILMS WOULD
FREQUENTLY GO OUT OF BUSINESS OR COME TO TERMS AND SELL OUT TO THE
COMBINATION WITH AN AGREEMENT NOT TO COMPETE FOR A TERM OF YEARS.  THE
MERE THREAT WOULD AT TIMES BE SUFFICIENT AND CAUSE THE COMPETITOR TO
SELL OUT TO THE COMBINATION "BECAUSE HIS MULE WAS SCARED."  IN THAT WAY
SOME OF THE AFFILIATES WERE BORN.  IN SUMMARIZING VARIOUS DEALS OF THIS
CHARACTER THE DISTRICT COURT SAID, "EACH OF THESE AGREEMENTS NOT TO
COMPETE WITH CRESCENT OR ITS AFFILIATES IN OTHER TOWNS EXTENDED FAR
BEYOND THE PROTECTION OF THE BUSINESS BEING SOLD, AND DEMONSTRATED A
CLEAR INTENTION TO MONOPOLIZE THEATRE OPERATION WHEREVER THEY OR THEIR
AFFILIATES SECURED A FOOTHOLD."  FN4 

THE SAME TYPE OF WARFARE WAS WAGED WITH FRANCHISE CONTRACTS WITH
CERTAIN MAJOR DISTRIBUTORS COVERING A TERM OF YEARS.  THESE GAVE THE
DEFENDANTS IMPORTANT EXCLUSIVE FILM-LICENSING AGREEMENTS.  THEIR
DETAILS VARIED.  BUT GENERALLY THEY GAVE THE DEFENDANT EXHIBITORS THE
RIGHT TO FIRST-RUN EXHIBITION OF ALL FEATURE PICTURES WHICH THEY CHOSE
TO SELECT IN THEIR DESIGNATED TOWNS.  CLEARANCES OVER THE SAME OR
NEARBY TOWNS WERE PROVIDED, I.E. A TIME LAG WAS ESTABLISHED BETWEEN THE
SHOWING BY THE DEFENDANT EXHIBITORS AND A SUBSEQUENT SHOWING BY
OTHERS.  THE OPPORTUNITY OF COMPETITORS TO OBTAIN FEATURE PICTURES FOR
SUBSEQUENT RUNS WAS FURTHER CURTAILED BY REPEAT PROVISIONS WHICH GAVE
THE DEFENDANT EXHIBITORS THE OPTION OF SHOWING THE PICTURES IN THEIR
THEATRES A SECOND TIME.  IN REVIEWING ONE OF THESE FRANCHISE AGREEMENTS
THE DISTRICT COURT CONCLUDED, "THE REPEAT-RUN CLAUSE IN THE FRANCHISE
WAS COMPLETELY EFFECTIVE IN PREVENTING THE SALE OF A SECOND-RUN OF ANY
PARAMOUNT FEATURES TO ANY OPPOSITION THEATRE." 

WE ARE NOW TOLD, HOWEVER, THAT THE INDEPENDENTS WERE ELIMINATED BY
THE NORMAL PROCESSES OF COMPETITION; THAT THEIR THEATRES WERE LESS
ATTRACTIVE; THAT THEIR SERVICE WAS INFERIOR; THAT THEY WERE NOT AS
EFFICIENT BUSINESSMEN AS THE DEFENDANTS.  WE MAY ASSUME THAT IF A
SINGLE EXHIBITOR LAUNCHED SUCH A PLAN OF ECONOMIC WARFARE HE WOULD NOT
RUN AFOUL OF THE SHERMAN ACT.  FN5  BUT THE VICE OF THIS UNDERTAKING
WAS THE COMBINATION OF SEVERAL EXHIBITORS IN A PLAN OF CONCERTED
ACTION.  THEY HAD UNITY OF PURPOSE AND UNITY OF ACTION.  THEY POOLED
THEIR BUYING POWER FOR A COMMON END.  IT WILL NOT DO TO ANALOGIZE THIS
TO A CASE WHERE PURCHASING POWER IS POOLED SO THAT THE BUYERS MAY
OBTAIN MORE FAVORABLE TERMS.  THE PLAN HERE WAS TO CRUSH COMPETITION
AND TO BUILD A CIRCUIT FOR THE EXHIBITORS.  THE DISTRICT COURT FOUND
THAT SOME OF THE DISTRIBUTORS WERE CO-CONSPIRATORS ON CERTAIN PHASES OF
THE PROGRAM.  BUT WE CAN PUT THAT CIRCUMSTANCE TO ONE SIDE AND NOT STOP
TO INQUIRE WHETHER THE FINDINGS ARE ADEQUATE ON THAT PHASE OF THE
CASE.  FOR IT IS IMMATERIAL WHETHER THE DISTRIBUTORS TECHNICALLY WERE
OR WERE NOT MEMBERS OF THE CONSPIRACY.  THE SHOWING OF MOTION PICTURES
IS OF COURSE A LOCAL AFFAIR.  BUT ACTION BY A COMBINATION OF EXHIBITORS
TO OBTAIN AN AGREEMENT WITH A DISTRIBUTOR WHEREBY COMMERCE WITH A
COMPETING EXHIBITOR IS SUPPRESSED OR RESTRAINED IS A CONSPIRACY IN
RESTRAINT OF TRADE AND A CONSPIRACY TO MONOPOLIZE A PART OF THE TRADE
OR COMMERCE AMONG THE STATES, EACH OF WHICH IS PROHIBITED BY THE
SHERMAN ACT.  AND AS WE HAVE SAID, THE COURSE OF BUSINESS WHICH
INVOLVES A REGULAR EXCHANGE OF FILMS IN INTERSTATE COMMERCE IS ADEQUATE
TO BRING THE EXHIBITORS WITHIN THE REACH OF THE SHERMAN ACT. 
INTERSTATE CIRCUIT V. UNITED STATES, SUPRA. 

THE EXHIBITORS, HOWEVER, CLAIM THAT THE FINDINGS AGAINST THEM ON THE
FACTS MUST FALL BECAUSE OF IMPROPER EVIDENCE.  THE EVIDENCE TO WHICH
THIS OBJECTION IS DIRECTED CONSISTS OF LETTERS OR REPORTS WRITTEN BY
EMPLOYEES OF CERTAIN OF THE MAJOR DISTRIBUTORS TO OTHER EMPLOYEES OR
OFFICERS IN THE SAME COMPANY STATING REASONS WHY THE DISTRIBUTOR WAS
DISCRIMINATING AGAINST AN INDEPENDENT IN FAVOR OF THE DEFENDANTS.  THE
UNITED STATES ASSERTS THAT THESE LETTERS OR REPORTS WERE DECLARATIONS
OF ONE CONSPIRATOR IN FURTHERANCE OF THE COMMON OBJECTIVE AND THEREFORE
ADMISSIBLE AS EVIDENCE AGAINST ALL UNDER THE RULE OF HITCHMAN COAL &
COKE CO. V. MITCHELL, 245 U.S. 229, 249.  AND IT IS ARGUED THAT IT
MAKES NO DIFFERENCE THAT THESE DISTRIBUTORS WERE DISMISSED OUT OF THE
CASE (DELANEY V. UNITED STATES, 263 U.S. 586, 590) SINCE THEY WERE
CHARGED WITH BEING CO-CONSPIRATORS AND SINCE THE FINDINGS ARE WITH
CERTAIN EXCEPTIONS ADEQUATE TO SUPPORT THE CHARGE.  WE DO NOT COME TO
THAT QUESTION.  THE OTHER EVIDENCE ESTABLISHED THE POSITION OF THE
DISTRIBUTORS AND THEIR RELATIONS TO THE THEATRES INVOLVED, WHAT THE
DISTRIBUTORS IN FACT DID, THE COMBINATION OF THE DEFENDANTS, THE
CHARACTER AND EXTENT OF THEIR BUYING POWER, AND HOW IT WAS IN FACT
USED.  THIS OTHER EVIDENCE WAS SUFFICIENT TO ESTABLISH THE RESTRAINTS
OF TRADE AND MONOPOLISTIC PRACTICES; THE PURPOSE, CHARACTER, AND EXTENT
OF THE COMBINATION ARE INFERABLE FROM IT ALONE.  THUS EVEN IF ERROR BE
ASSUMED IN THE INTRODUCTION OF THE LETTERS AND REPORTS, THE BURDEN OF
SHOWING PREJUDICE HAS NOT BEEN SUSTAINED. 

THE DEFENDANTS FINALLY OBJECT TO THE FINDINGS ON THE GROUND THAT THEY
WERE MAINLY TAKEN VERBATIM FROM THE GOVERNMENT'S BRIEF.  THE FINDINGS
LEAVE MUCH TO BE DESIRED IN LIGHT OF THE FUNCTION OF THE TRIAL COURT. 
SEE UNITED STATES V. FORNESS, 125 F.2D 928, 942-943.  BUT THEY ARE
NONETHELESS THE FINDINGS OF THE DISTRICT COURT.  AND THEY MUST STAND OR
FALL DEPENDING ON WHETHER THEY ARE SUPPORTED BY EVIDENCE.  WE THINK
THEY ARE. 

IV.  THE MAJOR CONTROVERSY HERE HAS TURNED ON THE PROVISIONS OF THE
DECREE. 

A. OBJECTIONS OF THE UNITED STATES.  THE UNITED STATES OBJECTS TO THE
PROVISION OF THE DECREE THAT NO DEFENDANT EXHIBITOR SHALL ACQUIRE A
FINANCIAL INTEREST IN ANY ADDITIONAL THEATRE OUTSIDE NASHVILLE IN ANY
TOWN WHERE THERE ALREADY IS A THEATRE "UNLESS THE OWNER OF SUCH THEATRE
SHOULD VOLUNTARILY OFFER TO SELL SAME TO EITHER OF THE EXHIBITOR
DEFENDANTS, AND WHEN NONE OF SAID DEFENDANTS, THEIR OFFICERS, AGENTS OR
SERVANTS ARE GUILTY OF ANY OF THE ACTS OR PRACTICES PROHIBITED BY
PARAGRAPH NINE (9) HEREOF."  PARAGRAPH 9 REFERRED TO ENJOINS THE
DEFENDANTS "FROM COERCING OR ATTEMPTING TO COERCE INDEPENDENT OPERATORS
INTO SELLING OUT TO IT, OR TO ABANDON PLANS TO COMPETE WITH IT BY
PREDATORY PRACTICES."  IT ASKS THAT THERE BE SUBSTITUTED FOR THAT
PROVISION ONE WHICH THE DISTRICT COURT HAD EARLIER APPROVED RESTRAINING
SUCH ACQUISITIONS "EXCEPT AFTER AN AFFIRMATIVE SHOWING THAT SUCH
ACQUISITION WILL NOT UNREASONABLY RESTRAIN COMPETITION." 

THE COURT AT TIMES HAS RATHER FREELY MODIFIED DECREES IN SHERMAN ACT
CASES WHERE IT APPROVED THE CONCLUSIONS OF THE DISTRICT COURT AS TO THE
NATURE AND CHARACTER OF THE VIOLATIONS.  STANDARD OIL CO. V. UNITED
STATES, 221 U.S. 1, 78-82.  UNITED STATES V. AMERICAN TOBACCO CO., 221
U.S. 106, 184-188.  WE RECOGNIZE HOWEVER THAT THERE IS A WIDE RANGE OF
DISCRETION IN THE DISTRICT COURT TO MOULD THE DECREE TO THE EXIGENCIES
OF THE PARTICULAR CASE; AND WHERE THE FINDINGS OF VIOLATIONS ARE
SUSTAINED, WE WILL NOT DIRECT A RECASTING OF THE DECREE EXCEPT ON A
SHOWING OF ABUSE OF DISCRETION.  SEE ETHYL GASOLINE CORP. V. UNITED
STATES, 309 U.S. 436, 461; UNITED STATES V. BAUSCH & LOMB CO., 321 U.S.
707, 725, 728.  WE THINK THIS IS A CASE WHERE WE SHOULD ACT LEST THE
PUBLIC INTEREST NOT BE ADEQUATELY PROTECTED BY THE DECREE AS CAST. 

THE GENERALITY OF THIS PROVISION OF THE DECREE BIDS FAIR TO CALL FOR
A RETRIAL OF A SHERMAN ACT CASE ANY TIME A CITATION FOR CONTEMPT IS
ISSUED.  THE CRUCIAL FACTS IN EACH CASE WOULD BE SUBTLE ONES AS IS
USUALLY TRUE WHERE PURPOSE AND MOTIVE ARE AT ISSUE.  THIS TYPE OF
PROVISION IS OFTEN THE ONLY PRACTICAL REMEDY AGAINST CONTINUATION OF
ILLEGAL TRADE PRACTICES.  BUT WE ARE DEALING HERE WITH A SITUATION
WHICH PERMITS OF A MORE SELECT TREATMENT.  THE GROWTH OF THIS COMBINE
HAS BEEN THE RESULT OF PREDATORY PRACTICES CONDEMNED BY THE SHERMAN
ACT.  THE OBJECT OF THE CONSPIRACY WAS THE DESTRUCTION OR ABSORPTION OF
COMPETITORS.  IT WAS SUCCESSFUL IN THAT ENDEAVOR.  THE PATTERN OF PAST
CONDUCT IS NOT EASILY FORSAKEN.  WHERE THE PROCLIVITY FOR UNLAWFUL
ACTIVITY HAS BEEN AS MANIFEST AS HERE, THE DECREE SHOULD OPERATE AS AN
EFFECTIVE DETERRENT TO A REPETITION OF THE UNLAWFUL CONDUCT AND YET NOT
STAND AS A BARRIER TO HEALTHY GROWTH ON A COMPETITIVE BASIS.  THE
ACQUISITION OF A COMPETING THEATRE TERMINATES AT ONCE ITS COMPETITION. 
PUNISHMENT FOR CONTEMPT DOES NOT RESTORE THE COMPETITION WHICH HAS BEEN
ELIMINATED.  AND WHERE BUSINESSES HAVE BEEN MERGED OR PURCHASED AND
CLOSED OUT IT IS COMMONLY IMPOSSIBLE TO TURN BACK THE CLOCK.  MOREOVER
IF THE DISTRICT COURT WERE TO SUPERVISE FUTURE ACQUISITIONS IN THIS
CASE, IT WOULD NOT BE UNDERTAKING AN ONEROUS AND ABSORBING
ADMINISTRATIVE BURDEN.  THE BURDEN WOULD NOT SEEM MORE ONEROUS THAN
UNDER THE ALTERNATIVE PROVISION WHERE IN SUBSTANCE THE ISSUE WOULD BE
VIOLATION OF THE SHERMAN ACT VEL NON. 

THESE CONSIDERATIONS IMPEL US TO CONCLUDE THAT THE DECREE SHOULD BE
REVISED SO AS TO PROHIBIT FUTURE ACQUISITIONS OF A FINANCIAL INTEREST
IN ADDITIONAL THEATRES OUTSIDE OF NASHVILLE "EXCEPT AFTER AN
AFFIRMATIVE SHOWING THAT SUCH ACQUISITION WILL NOT UNREASONABLY
RESTRAIN COMPETITION." 

B. OBJECTIONS OF THE DEFENDANTS.  (1)  THE DECREE ENJOINS THE
DEFENDANT EXHIBITORS FROM MAKING FRANCHISES WITH CERTAIN DISTRIBUTORS
"WITH THE PURPOSE AND EFFECT OF MAINTAINING THEIR THEATRE MONOPOLIES
AND PREVENTING INDEPENDENT THEATRES FROM COMPETING WITH THEM" AND FROM
ENTERING INTO "ANY SIMILAR COMBINATIONS AND CONSPIRACIES HAVING SIMILAR
PURPOSES AND OBJECTS."  THE DECREE ALSO ENJOINS THEM FROM COMBINING, IN
LICENSING FILMS, THEIR CLOSED TOWNS WITH THEIR COMPETITIVE SITUATIONS
"FOR THE PURPOSE AND WITH THE EFFECT OF COMPELLING THE MAJOR
DISTRIBUTORS TO LICENSE FILMS ON A NON-COMPETITIVE BASIS IN COMPETITIVE
SITUATIONS AND TO DISCRIMINATE" AGAINST THE INDEPENDENTS.  THE DECREE
ALSO ENJOINS EACH DEFENDANT EXHIBITOR "FROM CONDITIONING THE LICENSING
OF FILMS IN ANY COMPETITIVE SITUATION (OUTSIDE NASHVILLE) UPON THE
LICENSING OF FILMS IN ANY OTHER THEATRE SITUATION." 

IT IS ARGUED THAT THESE PROVISIONS WILL AGGRANDIZE THE DISTRIBUTORS
AT THE EXPENSE OF THE EXHIBITORS, THAT IF SUCH MEASURES ARE TAKEN THEY
SHOULD BE TAKEN AGAINST THE DISTRIBUTORS, THAT THEY DEPRIVE THE
EXHIBITORS OF GROUP PURCHASING POWER, THAT THE FRANCHISE AGREEMENTS ARE
NORMAL AND NECESSARY BOTH FOR DISTRIBUTORS AND EXHIBITORS, AND THAT
THESE PROVISIONS OF THE DECREE ARE SO VAGUE AND GENERAL AS TO GREATLY
BURDEN THE CONDUCT OF THESE BUSINESSES. 

IT IS NOT FOR US, HOWEVER, TO PICK AND CHOOSE BETWEEN COMPETING
BUSINESS AND ECONOMIC THEORIES IN APPLYING THIS LAW.  CONGRESS HAS MADE
THAT CHOICE.  IT HAS DECLARED THAT THE RULE OF TRADE AND COMMERCE
SHOULD BE COMPETITION, NOT COMBINATION.  UNITED STATES V. TRENTON
POTTERIES CO., 273 U.S. 392, 397; FASHION ORIGINATORS' GUILD V. FEDERAL
TRADE COMMISSION, 312 U.S. 457, 465.  SINCE CONGRESS HAS MADE THAT
CHOICE, WE CANNOT REFUSE TO SUSTAIN A DECREE BECAUSE BY SOME OTHER
MEASURE OF THE PUBLIC GOOD THE RESULT MAY NOT SEEM DESIRABLE.  UNITED
STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 221-222.  THE DUTY OF
THE COURT IN THESE CASES IS "TO FRAME ITS DECREE SO AS TO SUPPRESS THE
UNLAWFUL PRACTICES AND TO TAKE SUCH REASONABLE MEASURES AS WOULD
PRECLUDE THEIR REVIVAL."  ETHYL GASOLINE CORP. V. UNITED STATES, SUPRA,
P. 461.  THE CHIEF WEAPONS USED BY THIS COMBINATION IN ITS UNLAWFUL
WARFARE WERE THE FRANCHISE AGREEMENTS AND THE LICENSING SYSTEM.  THE
FACT THAT THOSE INSTRUMENTS COULD BE LAWFULLY USED DOES NOT MEAN THAT
THE DEFENDANTS MAY LEAVE THE COURT UNFETTERED.  CIVIL SUITS UNDER THE
SHERMAN ACT WOULD INDEED BE IDLE GESTURES IF THE INJUNCTION DID NOT RUN
AGAINST THE CONTINUANCE OR RESUMPTION OF THE UNLAWFUL PRACTICE.  AND IT
IS HARD TO SEE HOW THE DECREE COULD BE MADE LESS GENERAL AND MORE
SPECIFIC.  IF IT IS A BURDEN WHICH CANNOT BE LIGHTENED BY APPLICATION
TO THE COURT FOR EXERCISE OF THE POWER WHICH IT HAS RESERVED OVER THE
DECREE, IT IS A BURDEN WHICH THOSE WHO HAVE VIOLATED THE ACT MUST
CARRY.  AND THE FACT THAT THERE MAY BE SOMEWHERE IN THE BACKGROUND A
GREATER CONSPIRACY FROM WHICH FLOW CONSEQUENCES MORE SERIOUS THAN WE
HAVE HERE IS NO WARRANT FOR A REFUSAL TO DEAL WITH THE LESSER ONE WHICH
IS BEFORE US. 

(2)  SERIOUS COMPLAINT IS MADE OF THE DIVESTITURE PROVISIONS OF THE
DECREE.  IT REQUIRES EACH CORPORATE EXHIBITOR TO DIVEST ITSELF OF THE
OWNERSHIP OF ANY STOCK OR OTHER INTEREST IN ANY OTHER CORPORATE
DEFENDANT OR AFFILIATED CORPORATION,  FN6  AND ENJOINS IT FROM
ACQUIRING ANY INTEREST IN THOSE COMPANIES.  SUDEKUM IS REQUIRED TO
RESIGN AS AN OFFICER OF ANY CORPORATION (EXCEPT CRESCENT) WHICH IS
AFFILIATED WITH ANY DEFENDANT EXHIBITOR AND HE IS ENJOINED FROM
ACQUIRING CONTROL OVER ANY SUCH AFFILIATE (EXCEPT CRESCENT) BY ACTING
AS OFFICER OR OTHERWISE.  STENGEL IS REQUIRED TO RESIGN AS OFFICER OF
THE AFFILIATES (EXCEPT ONE CORPORATION OF HIS CHOICE) AND IS ENJOINED
FROM ACQUIRING ANY CONTROL OVER THE OTHERS BY ACTING AS AN OFFICER OR
OTHERWISE.  A YEAR FROM THE DATE OF ENTRY OF THE DECREE IS ALLOWED FOR
COMPLETING THIS DIVESTITURE. 

IT IS SAID THAT THESE PROVISIONS ARE INEQUITABLE AND HARSH INCOME TAX
WISE, THAT THEY EXCEED ANY REASONABLE REQUIREMENT FOR THE PREVENTION OF
FUTURE VIOLATIONS, AND THAT THEY ARE THEREFORE PUNITIVE. 

THE COURT HAS QUITE CONSISTENTLY RECOGNIZED IN THIS TYPE OF SHERMAN
ACT CASE THAT THE GOVERNMENT SHOULD NOT BE CONFINED TO AN INJUNCTION
AGAINST FURTHER VIOLATIONS.  DISSOLUTION OF THE COMBINATION WILL BE
ORDERED WHERE THE CREATION OF THE COMBINATION IS ITSELF THE VIOLATION. 
SEE NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197, 354-360;
STANDARD OIL CO. V. UNITED STATES, SUPRA; UNITED STATES V. AMERICAN
TOBACCO CO., SUPRA, PP. 186-188; UNITED STATES V. UNION PACIFIC R. CO.,
226 U.S. 61, 97; UNITED STATES V. READING CO., 253 U.S. 26, 63; UNITED
STATES V. LEHIGH VALLEY R. CO., 254 U.S. 255; UNITED STATES V. SOUTHERN
PACIFIC CO., 259 U.S. 214; UNITED STATES V. CORN PRODUCTS REFINING CO.,
234 F. 964, 1018.  THOSE WHO VIOLATE THE ACT MAY NOT REAP THE BENEFITS
OF THEIR VIOLATIONS AND AVOID AN UNDOING OF THEIR UNLAWFUL PROJECT ON
THE PLEA OF HARDSHIP OR INCONVENIENCE.  THAT PRINCIPLE IS ADEQUATE HERE
TO JUSTIFY DIVESTITURE OF ALL INTEREST IN SOME OF THE AFFILIATES SINCE
THEIR ACQUISITION WAS PART OF THE FRUITS OF THE CONSPIRACY.  BUT THE
RELIEF NEED NOT, AND UNDER THESE FACTS SHOULD NOT, BE SO RESTRICTED. 
THE FACT THAT THE COMPANIES WERE AFFILIATED INDUCED JOINT ACTION AND
AGREEMENT.  COMMON CONTROL WAS ONE OF THE INSTRUMENTS IN BRINGING ABOUT
UNITY OF PURPOSE AND UNITY OF ACTION AND IN MAKING THE CONSPIRACY
EFFECTIVE.  IF THAT AFFILIATION CONTINUES, THERE WILL BE TEMPTING
OPPORTUNITY FOR THESE EXHIBITORS TO CONTINUE TO ACT IN COMBINATION
AGAINST THE INDEPENDENTS.  THE PROCLIVITY IN THE PAST TO USE THAT
AFFILIATION FOR AN UNLAWFUL END WARRANTS EFFECTIVE ASSURANCE THAT NO
SUCH OPPORTUNITY WILL BE AVAILABLE IN THE FUTURE.  HENCE WE DO NOT
THINK THE DISTRICT COURT ABUSED ITS DISCRETION IN FAILING TO LIMIT THE
RELIEF TO AN INJUNCTION AGAINST FUTURE VIOLATIONS.  THERE IS NO REASON
WHY THE PROTECTION OF THE PUBLIC INTEREST SHOULD DEPEND SOLELY ON THAT
SOMEWHAT CUMBERSOME PROCEDURE WHEN ANOTHER EFFECTIVE ONE IS AVAILABLE. 

THE FACT THAT MINORITY STOCKHOLDERS OF THE AFFILIATED COMPANIES ARE
NOT PARTIES TO THE SUIT IS NO LEGAL BARRIER TO A SEPARATION OF THE
COMPANIES.  UNITED STATES V. AMERICAN TOBACCO CO., SUPRA. NO LEGAL
RIGHT OF ONE STOCKHOLDER IS NORMALLY AFFECTED IF ANOTHER STOCKHOLDER IS
REQUIRED TO SELL HIS STOCK.  AND NO EXCEPTION TO THAT RULE HAS BEEN
SHOWN TO EXIST HERE.  ONLY BUSINESS INCONVENIENCE AND HARDSHIP ARE
ASSERTED.  IT IS SAID, HOWEVER, THAT THE DECREE REQUIRES ROCKWOOD AND
CHEROKEE (TWO DEFENDANT EXHIBITORS) TO SELL THEIR RESPECTIVE HALF
INTERESTS IN TWO COMPANIES WHICH WERE NOT MADE PARTIES TO THE
PROCEEDINGS.  THE ARGUMENT IS THAT THE LATTER COMPANIES ARE
INDISPENSABLE PARTIES IF SUCH DIVESTITURE IS REQUIRED.  RELIANCE IS
PLACED ON MINNESOTA V. NORTHERN SECURITIES CO., 184 U.S. 199.  IN THAT
CASE MINNESOTA BROUGHT AN ORIGINAL ACTION IN THIS COURT ALLEGING THAT
THE ACQUISITION BY NORTHERN SECURITIES CO. OF THE MAJORITY STOCK OF TWO
RAILROAD COMPANIES EFFECTED A CONSOLIDATION OF THE RAILROADS IN
VIOLATION OF MINNESOTA LAW.  MINNESOTA ASKED, AMONG OTHER THINGS, FOR
AN INJUNCTION AGAINST NORTHERN SECURITIES CO. VOTING THE STOCK OF THOSE
COMPANIES.  THE COURT HELD THAT THE TWO RAILROAD COMPANIES WERE
INDISPENSABLE PARTIES; AND SINCE THE JURISDICTION OF THE COURT WOULD
HAVE BEEN DEFEATED IF THEY WERE JOINED, LEAVE TO FILE THE BILL WAS
DENIED.  DENIAL OF THE RIGHT OF A MAJORITY STOCKHOLDER TO VOTE HIS
STOCK WOULD DEPRIVE THE CORPORATION OF A BOARD OF DIRECTORS ELECTED IN
ACCORDANCE WITH STATE LAW.  IF SUCH A STEP WERE TAKEN, THE CORPORATION
SHOULD BE A PARTY SO THAT ALL CORPORATE INTERESTS MIGHT BE
REPRESENTED.  MINNESOTA V. NORTHERN SECURITIES CO. GOES NO FARTHER THAN
THAT.  HERE THERE IS NO SHOWING OF ANY COMPLICATION OF THAT ORDER.  IF
SUCH A COMPLICATION APPEARED, THE DISTRICT COURT COULD BRING IN THE TWO
AFFILIATES AS PARTIES IN ORDER TO EFFECTUATE THE DECREE.  UNITED STATES
V. SOUTHERN PACIFIC CO., SUPRA, P. 241.  BUT ON THIS RECORD IT DOES NOT
APPEAR THAT IF ROCKWOOD AND CHEROKEE ARE REQUIRED TO SELL THEIR HALF
INTERESTS IN THOSE COMPANIES ANY LEGAL RIGHT OF ANY OTHER STOCKHOLDER
WOULD BE AFFECTED.  CF. MORGAN V. STRUTHERS, 131 U.S. 246. 

WE HAVE CONSIDERED THE OTHER CONTENTIONS AND FIND THEM WITHOUT
MERIT.    THE APPEAL IN NO. 17 IS DISMISSED. 

THE JUDGMENT IN NO. 18 IS REVERSED. 

THE JUDGMENT IN NO. 19 IS AFFIRMED.  IT IS SO ORDERED. 

FN1  THIS WAS DONE AFTER A CONSENT DECREE HAD BEEN ENTERED AGAINST
FIVE OF THE MAJOR DISTRIBUTORS IN UNITED STATES V. PARAMOUNT PICTURES,
INC. THIS DISMISSAL DID NOT ELIMINATE THE CHARGE THAT THESE
DISTRIBUTORS HAD CONSPIRED WITH THE DEFENDANT EXHIBITORS TO RESTRAIN
AND MONOPOLIZE TRADE.  AND SOME OF THE DISTRIBUTORS, THOUGH DISMISSED
FROM THE CASE, WERE FOUND TO BE CO-CONSPIRATORS WITH THE EXHIBITORS IN
MAKING FRANCHISE AGREEMENTS AND IN LICENSING FILMS FOR THE PURPOSE OF
MAINTAINING THE EXHIBITORS' THEATRE MONOPOLIES AND OF PREVENTING THE
INDEPENDENTS FROM COMPETING. 

FN2  CRESCENT IS USED FOR CRESCENT AMUSEMENT CO.; CUMBERLAND FOR
CUMBERLAND AMUSEMENT CO.; LYRIC FOR LYRIC AMUSEMENT CO., INC.; CHEROKEE
FOR CHEROKEE AMUSEMENTS, INC.; KENTUCKY FOR KENTUCKY AMUSEMENT CO.,
INC.; MUSCLE SHOALS FOR MUSCLE SHOALS THEATRES; AND ROCKWOOD FOR
ROCKWOOD AMUSEMENT CO. 

FN3  THE DEFENDANT EXHIBITORS DURING THE FIVE-YEAR PERIOD PRECEDING
THE FILING OF THIS SUIT PAID ABOUT 90% OF THEIR TOTAL FILM RENTAL TO
THE EIGHT MAJOR DISTRIBUTORS. 

FN4  THE EXPANSION OF THE COMBINATION DURING THIS PERIOD WAS
SUMMARIZED BY THE DISTRICT COURT AS FOLLOWS: 

"ON AUGUST 11, 1934, THE DEFENDANT EXHIBITORS AND THEIR AFFILIATES
OPERATED IN THIRTY-TWO TOWNS IN TENNESSEE (EXCLUDING NASHVILLE),
KENTUCKY, AND ALABAMA, IN SIX OF WHICH THEY HAD COMPETITION.  ON AUGUST
11, 1939, THE DEFENDANT EXHIBITORS AND THEIR AFFILIATES, WITH THE
EXCEPTION OF STRAND, HERETOFORE DISMISSED AS A DEFENDANT, OPERATED IN
SEVENTY-EIGHT TOWNS IN TENNESSEE (EXCLUDING NASHVILLE), KENTUCKY,
ALABAMA, AND NORTH CAROLINA, IN FIVE OF WHICH THEY HAD COMPETITION, AND
THE ONLY TOWNS IN WHICH THEY HAVE COMPETITION TODAY OUTSIDE OF
NASHVILLE, ARE GADSDEN, ALABAMA, HARRIMAN, GALLATIN AND MCMINNVILLE,
TENNESSEE, AND FRANKLIN, KENTUCKY.  IN TWO OF THESE TOWNS - GADSDEN,
ALABAMA, AND HARRIMAN, TENNESSEE - THE INDEPENDENT THEATRES HAVE OPENED
SINCE THE FILING OF THIS SUIT AND TWO MORE - FRANKLIN, KENTUCKY, AND
GALLATIN, TENNESSEE - ARE TOWNS WHICH CRESCENT ENTERED LESS THAN TWO
YEARS BEFORE THE FILING OF THIS SUIT. 

"OF THE FORTY-FIVE TOWNS IN TENNESSEE LISTED IN THE 1940 CENSUS AS
HAVING POPULATIONS BETWEEN 2,500 AND 10,000, CRESCENT AND ITS
AFFILIATES NOW OPERATE THEATRES IN ALL BUT NINE.  THE INDEPENDENTS
OPERATING IN THREE OF THOSE NINE TOWNS HAVE ALREADY BEEN APPROACHED BY
SUDEKUM EMISSARIES WITH THE SUGGESTION THAT THEY SELL TO ONE OF THE
DEFENDANT EXHIBITORS." 

THEIR FINANCIAL GROWTH WAS FOUND TO BE "OUT OF ALL PROPORTION" TO
THEIR PHYSICAL EXPANSION: 

"DURING THE FIVE-YEAR PERIOD IMMEDIATELY PRECEDING THE SUIT, THE
CRESCENT AND ROCKWOOD COMPANIES EACH EXPERIENCED A PHENOMENAL GROWTH IN
EARNINGS AND SURPLUS WHICH WAS OUT OF ALL PROPORTION TO THE INCREASE IN
GROSS RECEIPTS AND GROSS ASSETS RESULTING FROM PHYSICAL EXPANSION OF
THE BUSINESS AND IMPROVING GENERAL ECONOMIC CONDITIONS.  DURING THE
FIVE-YEAR FISCAL PERIOD FROM JUNE 30, 1934 TO JUNE 30, 1939, CRESCENT'S
TOTAL ASSETS WERE LESS THAN DOUBLED, BUT ITS SURPLUS WAS INCREASED
THIRTY TIMES.  DURING THE LAST FISCAL YEAR OF SAID PERIOD ITS GROSS
RECEIPTS WERE LESS THAN TWICE THE AMOUNT OF ITS GROSS RECEIPTS FOR THE
FIRST FISCAL YEAR OF SAID PERIOD, BUT ITS NET PROFITS (EXCLUSIVE OF
DIVIDENDS RECEIVED) WERE MORE THAN FIVE TIMES THOSE OF THE FIRST YEAR. 
DURING THE FIVE-YEAR PERIOD, ITS NET EARNINGS (EXCLUSIVE OF DIVIDENDS
RECEIVED) AVERAGED ABOUT 35 PER CENT PER ANNUM, ON ITS
CAPITALIZATION." 

FN5  A UNION OF THE EXHIBITOR WITH A DISTRIBUTOR IN SUCH A PROGRAM
WOULD OF COURSE CONSTITUTE A CONSPIRACY UNDER THE SHERMAN ACT AS HELD
IN INTERSTATE CIRCUIT V. UNITED STATES, 306 U.S. 208. 

FN6  DEFINED IN THE DECREE TO EXCLUDE CERTAIN COMPANIES. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE MURPHY, AND MR. JUSTICE JACKSON
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE ROBERTS DISSENTS. 
..END :













BUSBY V. ELECTRIC UTILITIES UNION, 323 U.S. 72 


NO. 74.  ARGUED NOVEMBER 17, 1944.  - DECIDED DECEMBER 4, 1944 -
DISMISSED. 


1.  THE "LAW APPLIED IN THE DISTRICT OF COLUMBIA," WHICH BY RULE 81(E)
OF THE RULES OF CIVIL PROCEDURE GOVERNS PROCEEDINGS IN THE DISTRICT
COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA WHENEVER UNDER
THE RULES THE "LAW OF THE STATE" IS MADE APPLICABLE, IS DERIVED FROM
THE COMMON LAW AND STATUTES OF MARYLAND IN FORCE AT THE TIME OF THE
CESSION OF THE DISTRICT TO THE UNITED STATES, AS MODIFIED BY STATUTES
OF CONGRESS AND AS DETERMINED AND DEVELOPED BY THE COURTS OF THE
DISTRICT.  P. 73. 

2.  UNDER THE PROVISION OF RULE 17(B) OF THE RULES OF CIVIL PROCEDURE
WHICH PERMITS SUIT AGAINST AN UNINCORPORATED ASSOCIATION FOR THE
ENFORCEMENT OF "A SUBSTANTIVE RIGHT EXISTING UNDER THE CONSTITUTION OR
LAWS OF THE UNITED STATES," A CERTIFIED QUESTION WHETHER AN
UNINCORPORATED LABOR UNION IS SUABLE IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT OF COLUMBIA IN AN ACTION OF DEBT CAN NOT
ARISE IN THE PRESENT SUIT UNLESS IT FIRST BE DECIDED THAT UNDER THE LAW
OF THE DISTRICT OF COLUMBIA AN UNINCORPORATED LABOR UNION IS WITHOUT
CAPACITY TO BE SUED IN ITS OWN NAME; AND THAT QUESTION OF LOCAL LAW
SHOULD BE DECIDED BY THE COURTS OF THE DISTRICT OF COLUMBIA BEFORE THIS
COURT IS CALLED UPON TO DECIDE IT.  P. 74. 

3.  ON CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA UNDER 28 U.S.C. SEC. 346, THIS COURT DOES NOT
ANSWER A QUESTION OF LAW WHICH WOULD BE DECISIVE OF THE CAUSE ONLY IN
THE EVENT THAT A QUESTION OF LOCAL LAW, NOT ANSWERED BY THE COURT OF
APPEALS AND INAPPROPRIATE FOR THIS COURT TO CONSIDER IN THE FIRST
INSTANCE, RECEIVES ONE ANSWER RATHER THAN ANOTHER.  P. 75. 

BUSBY ET AL. V. ELECTRIC UTILITIES EMPLOYEES UNION, ETC. 

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA. 

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA UPON AN APPEAL TO THAT COURT FROM A JUDGMENT OF THE
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA
DISMISSING THE COMPLAINT IN AN ACTION OF DEBT AGAINST AN UNINCORPORATED
LABOR UNION. 

PER CURIAM. 

IN THIS CASE THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA,
PURSUANT TO JUDICIAL CODE, SEC. 239, 28 U.S.C. SEC. 346, HAS CERTIFIED
TO THIS COURT THE FOLLOWING QUESTION: 

"IS AN UNINCORPORATED LABOR UNION, WITH ITS PRINCIPAL OFFICE IN THE
DISTRICT OF COLUMBIA, SUABLE AS SUCH IN AN ACTION IN DEBT BROUGHT
AGAINST IT IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA, WHERE SERVICE OF PROCESS IS DULY HAD UPON ITS PRESIDENT AT
ITS PRINCIPAL OFFICE?" 

RULE 17(B) OF THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF
THE UNITED STATES PROVIDES, IN THE CASE OF A PARTY OTHER THAN AN
INDIVIDUAL OR A CORPORATION, THAT:  "CAPACITY TO SUE OR BE SUED SHALL
BE DETERMINED BY THE LAW OF THE STATE IN WHICH THE DISTRICT COURT IS
HELD; EXCEPT THAT A PARTNERSHIP OR OTHER UNINCORPORATED ASSOCIATION,
WHICH HAS NO SUCH CAPACITY BY THE LAW OF SUCH STATE, MAY SUE OR BE SUED
IN ITS COMMON NAME FOR THE PURPOSE OF ENFORCING FOR OR AGAINST IT A
SUBSTANTIVE RIGHT EXISTING UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES." 

BY RULE 81(E), THE "LAW OF THE STATE" IN PROCEEDINGS IN THE DISTRICT
COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA IS "THE LAW
APPLIED IN THE DISTRICT OF COLUMBIA."  THAT LAW IS DERIVED FROM THE
COMMON LAW AND STATUTES OF MARYLAND IN FORCE AT THE TIME OF THE CESSION
OF THE DISTRICT TO THE UNITED STATES, AS MODIFIED BY STATUTES OF
CONGRESS AND AS DETERMINED AND DEVELOPED BY THE COURTS OF THE
DISTRICT.  ACT OF FEBRUARY 27, 1801, 2 STAT. 103; ARMSTRONG V. LEAR, 12
WHEAT.  169, 176; MCKENNA V. FISK, 1 HOW.  241, 249. 

UNDER THESE RULES, A PLAINTIFF MAY PROCEED IN THE DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA AGAINST AN UNINCORPORATED LABOR UNION IN ITS
COMMON NAME IF, BY THE LAW OF THE DISTRICT, IT HAS CAPACITY TO BE SUED
AS SUCH.  ONLY IF IT BE DECIDED THAT BY THE LOCAL LAW SUCH A UNION DOES
NOT HAVE CAPACITY TO BE SUED IN ITS OWN NAME NEED THERE BE
CONSIDERATION OF THE SECOND PART OF RULE 17(B), WHICH PERMITS A SUIT
AGAINST AN UNINCORPORATED ASSOCIATION FOR THE ENFORCEMENT OF "A
SUBSTANTIVE RIGHT EXISTING UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES." 

THE CERTIFICATE IN THIS CASE DISCLOSES THAT THE COURT OF APPEALS IS
IN DOUBT AS TO THE MEANING AND APPLICATION OF THE RULE LAID DOWN IN
UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344, 383-392, AND
THE EFFECT UPON IT OF THE SECOND PART OF RULE 17(B); CF. BROWN V.
UNITED STATES, 276 U.S. 134, 141; PUERTO RICO V. RUSSELL & CO., 288
U.S. 476, 480-482, 483-484; MOFFAT TUNNEL LEAGUE V. UNITED STATES, 289
U.S. 113, 118.  BUT UNDER RULES 17 AND 81 OF THE RULES OF CIVIL
PROCEDURE, AS WE HAVE SAID, THAT QUESTION CANNOT ARISE IN THE PRESENT
SUIT, UNLESS IT IS FIRST DECIDED THAT UNDER THE LAW OF THE DISTRICT AN
UNINCORPORATED LABOR UNION IS WITHOUT CAPACITY TO BE SUED IN ITS OWN
NAME.  AND WE DO NOT UNDERSTAND THE CERTIFICATE TO SEEK OUR AID IN THE
DETERMINATION OF THIS QUESTION OF LOCAL LAW. 

IN ANY EVENT, WE THINK IT APPROPRIATE THAT THE QUESTION OF LOCAL LAW
SHOULD BE ANSWERED BY THE COURTS OF THE DISTRICT BEFORE THIS COURT IS
CALLED UPON TO ANSWER IT, OR TO CONSIDER THE APPLICATION AND EFFECT OF
THE SECOND PART OF RULE 17(B) IN AN ACTION IN DEBT BROUGHT IN THE
DISTRICT OF COLUMBIA AGAINST AN UNINCORPORATED LABOR UNION.  THERE ARE
COGENT REASONS WHY THIS COURT SHOULD NOT UNDERTAKE TO DECIDE QUESTIONS
OF LOCAL LAW WITHOUT THE AID OF SOME EXPRESSION OF THE VIEWS OF JUDGES
OF THE LOCAL COURTS WHO ARE FAMILIAR WITH THE INTRICACIES AND TRENDS OF
LOCAL LAW AND PRACTICE.  WE DO NOT ORDINARILY DECIDE SUCH QUESTIONS
WITHOUT THAT AID WHERE THEY MAY CONVENIENTLY BE DECIDED IN THE FIRST
INSTANCE BY THE COURT WHOSE SPECIAL FUNCTION IT IS TO RESOLVE QUESTIONS
OF THE LOCAL LAW OF THE JURISDICTION OVER WHICH IT PRESIDES. 
HUDDLESTON V. DWYER, 322 U.S. 232, 237, AND CASES CITED.  ONLY IN
EXCEPTIONAL CASES WILL THIS COURT REVIEW A DETERMINATION OF SUCH A
QUESTION BY THE COURT OF APPEALS FOR THE DISTRICT.  DISTRICT OF
COLUMBIA V. PACE, 320 U.S. 698, 702, AND CASES CITED. 

IT IS NOT THE FUNCTION OF THE CERTIFICATE AUTHORIZED BY 28 U.S.C.
SEC. 346 TO REQUIRE THIS COURT TO ANSWER QUESTIONS NOT SHOWN TO BE
NECESSARY TO THE DECISION OF THE CASE.  A QUESTION WILL NOT BE ANSWERED
IF IT IS HYPOTHETICAL, WEBSTER V. COOPER, 10 HOW.  54, 55; PELHAM V.
ROSE, 9 WALL.  103, 107; WHITE V. JOHNSON, 282 U.S. 367, 373; LOWDEN V.
NORTHWESTERN NATIONAL BANK CO., 298 U.S. 160, 162-163, OR IF IT IS
DEPENDENT UPON OTHER QUESTIONS WHICH MAY NOT APPROPRIATELY BE ANSWERED,
JEWELL V. KNIGHT, 123 U.S. 426, 432-433, 435; LOWDEN V. NORTHWESTERN
NATIONAL BANK CO., SUPRA, 166.  THIS COURT WILL NOT ANSWER A QUESTION
WHICH WILL NOT ARISE IN THE PENDING CONTROVERSY UNLESS ANOTHER ISSUE,
NOT YET RESOLVED BY THE CERTIFYING COURT, IS DECIDED IN A PARTICULAR
WAY.  TRIPLETT V. LOWELL, 297 U.S. 638, 647-649; WEBSTER V. COOPER,
SUPRA, 55; CF. UNITED STATES V. BUZZO, 18 WALL.  125, 129. 

WE DO NOT ANSWER THE QUESTION AS TO THE EFFECT OF THE SECOND PART OF
RULE 17(B), SINCE THE ANSWER WILL BE DECISIVE OF THE CASE ONLY IN THE
EVENT THAT A QUESTION OF LOCAL LAW, NOT ANSWERED BY THE COURT OF
APPEALS AND INAPPROPRIATE FOR US TO CONSIDER IN THE FIRST INSTANCE,
RECEIVES ONE RATHER THAN ANOTHER ANSWER.  WE HAVE NO OCCASION TO
DISCUSS THE MEANING AND APPLICATION OF THE RULE OF THE CORONADO CASE OR
THE SECOND PART OF RULE 17(B), WHICH ARE RELEVANT ONLY FOR THE PURPOSE
OF ANSWERING THE QUESTION WHICH, AS WE HAVE SAID, WE CANNOT PROPERLY
ANSWER.  THE CERTIFICATE IS ACCORDINGLY DISMISSED.  SO ORDERED. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING. 

I JOIN IN THE PER CURIAM ON THE ASSUMPTION THAT AFTER THE COURT OF
APPEALS WILL HAVE DISPOSED OF ALL ISSUES TO BE DECIDED BY LOCAL
DISTRICT OF COLUMBIA LAW NOTHING WILL BE LEFT IN THE CERTIFIED QUESTION
FOR THIS COURT TO ANSWER. 

THIS IS A SUIT FOR A LAWYER'S FEE, THAT IS, AN ORDINARY DISTRICT OF
COLUMBIA COMMON LAW ACTION OF DEBT AND NOT ONE TO ENFORCE "A
SUBSTANTIVE RIGHT EXISTING UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES."  FOR, I TAKE IT, IN ALLOWING AN UNINCORPORATED ASSOCIATION TO
BE SUED "IN ITS COMMON NAME FOR THE PURPOSE OF ENFORCING  ...  A
SUBSTANTIVE RIGHT EXISTING UNDER THE  ...  LAWS OF THE UNITED STATES,"
RULE 17(B) OF THE RULES OF CIVIL PROCEDURE REFERRED TO LAWS OF GENERAL
APPLICABILITY THROUGHOUT THE UNITED STATES AND NOT TO THE BODY OF LOCAL
LAW GOVERNING THE DISTRICT OF COLUMBIA.  THEREFORE, SUABILITY OF AN
UNINCORPORATED LABOR UNION IS A LOCAL PROCEDURAL PROBLEM TO BE
DETERMINED, ACCORDING TO RULE 17(B) IN CONJUNCTION WITH RULE 81(E), BY
THE LOCAL LAW OF THE DISTRICT.  THAT "THE SUABILITY OF TRADES UNIONS
... IS AFTER ALL IN ESSENCE AND PRINCIPLE MERELY A PROCEDURAL MATTER"
IS VOUCHED FOR BY THE CORONADO CASE, 259 U.S. 344, 390, THE SCOPE OF
WHICH HAS BEEN AUTHORITATIVELY DEFINED IN BROWN V. UNITED STATES, 276
U.S. 134, 141 AND MOFFAT TUNNEL LEAGUE V. UNITED STATES, 289 U.S. 113,
118.  SINCE SUBSTANTIVE RIGHTS WERE OUTSIDE THE AUTHORITY GIVEN BY
CONGRESS FOR PRESCRIBING RULES OF CIVIL PROCEDURE, RULE 17(B) AND THE
NOTE THERETO BY THE ADVISORY COMMITTEE ON RULES, BY DEALING WITH
CAPACITY TO SUE OR BE SUED, DECISIVELY CONFIRM THE STATEMENT IN THE
CORONADO CASE THAT THE SUABILITY OF A TRADE UNION IS A PROCEDURAL
MATTER. 

BUT IF SUCH A PROCEDURAL MATTER MAY BE CAST IN THE FORM OF A
SUBSTANTIVE ISSUE FOR THE DETERMINATION OF STATUS, IT WOULD, IN THIS
CASE IN ANY EVENT, BE A QUESTION OF THE SUBSTANTIVE LAW OF THE DISTRICT
AND NOT RAISE ANY SUBSTANTIVE ISSUE OF FEDERAL LAW.  IF A SUIT LIKE
THIS WERE BROUGHT IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK UNDER DIVERSITY JURISDICTION, NO CONCEIVABLE QUESTION OTHER
THAN THAT OF THE PROCEDURAL OR SUBSTANTIVE LAW OF THE STATE OF NEW YORK
COULD ARISE.  NO FEDERAL QUESTION IS INFUSED INTO THE LITIGATION
BECAUSE SUCH A LOCAL SUIT WAS BROUGHT IN THE DISTRICT OF COLUMBIA. 

IN VIEW OF THE INCREASE IN THE VOLUME AND THE COMPLEXITY OF THE
BUSINESS THAT IS COMING TO THIS COURT, AND THE BEARING OF THIS INCREASE
UPON THE PROPER DISCHARGE OF ITS WORK (SEE EX PARTE PERU, 318 U.S. 578,
602-604), I DEEM IT IMPORTANT TO AVOID ANY ENCOURAGEMENT HOWEVER SLIGHT
TO FUTILE RESORT TO THIS COURT. 
..END :


















BARBER V. BARBER, 323 U.S. 77 


NO. 51.  ARGUED NOVEMBER 9, 1944.  - DECIDED DECEMBER 4, 1944.  - 180
TENN. 353, 175 S.W.2D 324, REVERSED. 


1.  UPON REVIEW HERE OF A JUDGMENT OF A COURT OF ONE STATE REFUSING TO
GIVE FULL FAITH AND CREDIT TO A JUDGMENT OF A COURT OF ANOTHER, THE
SUFFICIENCY OF THE GROUNDS OF REFUSAL IS FOR THIS COURT TO DETERMINE. 
P. 81. 

2.  UPON REVIEW HERE OF A DECISION OF A COURT OF ONE STATE INVOLVING
THE LAW OF ANOTHER, A FEDERAL RIGHT BEING ASSERTED, IT IS THE DUTY OF
THIS COURT TO DETERMINE FOR ITSELF THE LAW OF SUCH OTHER STATE.  P.
81. 

3.  A DULY AUTHENTICATED JUDGMENT OF A COURT OF GENERAL JURISDICTION
OF ANOTHER STATE IS PRIMA FACIE EVIDENCE OF THE JURISDICTION OF THE
COURT TO RENDER IT AND OF THE RIGHT WHICH IT PURPORTS TO ADJUDICATE. 
P. 86. 

4.  A MONEY JUDGMENT OF A COURT OF NORTH CAROLINA FOR ARREARS OF
ALIMONY, NOT BY ITS TERMS CONDITIONAL AND ON WHICH EXECUTION WAS
DIRECTED TO ISSUE, HELD, UNDER THE LAW OF THAT STATE, NOT SUBJECT TO
MODIFICATION OR RECALL; AND, UNDER THE FEDERAL CONSTITUTION AND THE ACT
OF MAY 26, 1790, AS AMENDED, ENTITLED TO FULL FAITH AND CREDIT.  P.
86. 

BARBER V. BARBER. 

CERTIORARI TO THE SUPREME COURT OF TENNESSEE. 

CERTIORARI, 322 U.S. 719, TO REVIEW THE REVERSAL OF A DECREE IN A
SUIT TO ENFORCE A JUDGMENT OF A COURT OF ANOTHER STATE FOR ARREARS OF
ALIMONY. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE SUPREME COURT OF TENNESSEE,
IN A SUIT BROUGHT UPON A NORTH CAROLINA JUDGMENT FOR ARREARS OF
ALIMONY, RIGHTLY DENIED FULL FAITH AND CREDIT TO THE JUDGMENT, ON THE
GROUND THAT IT LACKS FINALITY BECAUSE, BY THE LAW OF NORTH CAROLINA, IT
IS SUBJECT TO MODIFICATION OR RECALL BY THE COURT WHICH ENTERED IT. 

IN 1920 PETITIONER SECURED IN THE SUPERIOR COURT OF NORTH CAROLINA
FOR BUNCOMBE COUNTY, A COURT OF GENERAL JURISDICTION, A JUDGMENT OF
SEPARATION FROM RESPONDENT, HER HUSBAND.  THE JUDGMENT DIRECTED PAYMENT
TO PETITIONER OF $200 PER MONTH ALIMONY, LATER REDUCED TO $160 PER
MONTH.  IN 1932 RESPONDENT STOPPED PAYING THE PRESCRIBED ALIMONY.  IN
1940, ON PETITIONER'S MOTION IN THE SEPARATION SUIT FOR A JUDGMENT FOR
THE AMOUNT OF THE ALIMONY ACCRUED AND UNPAID UNDER THE EARLIER ORDER,
THE SUPERIOR COURT OF NORTH CAROLINA GAVE JUDGMENT IN HER FAVOR.  IT
ADJUDGED THAT RESPONDENT WAS INDEBTED TO PETITIONER IN THE SUM OF
$19,707.20, UNDER ITS FORMER ORDER, THAT PETITIONER HAVE AND RECOVER OF
RESPONDENT THAT AMOUNT, AND "THAT EXECUTION ISSUE THEREFOR." 

PETITIONER THEN BROUGHT THE PRESENT SUIT IN THE TENNESSEE CHANCERY
COURT TO RECOVER ON THE JUDGMENT THUS OBTAINED.  RESPONDENT, BY HIS
ANSWER, PUT IN ISSUE THE FINALITY, UNDER NORTH CAROLINA LAW, OF THE
JUDGMENT SUED UPON, AND THE CAUSE WAS SUBMITTED FOR DECISION ON THE
PLEADINGS AND A STIPULATION THAT THE COURT MIGHT CONSIDER AS DULY
PROVED THE RECORDS IN TWO PRIOR APPEALS IN THE NORTH CAROLINA
SEPARATION PROCEEDING "UPON THE AUTHORITY OF WHICH THE JUDGMENT SUED
UPON IN THE PRESENT CASE IS PREDICATED," AND THAT THE OPINIONS OF THE
SUPREME COURT OF NORTH CAROLINA UPON THESE APPEALS, BARBER V. BARBER,
216 N.C. 232, 4 S.E.2D 447; 217 N.C. 422, 8 S.E.2D 204, SHOULD BE
"ADMISSIBLE IN EVIDENCE TO PROVE OR TEND TO PROVE THE NORTH CAROLINA
LAW." 

THE TENNESSEE CHANCERY COURT HELD THE JUDGMENT SUED UPON TO BE
ENTITLED TO FULL FAITH AND CREDIT, AND GAVE JUDGMENT FOR PETITIONER
ACCORDINGLY.  THE SUPREME COURT OF TENNESSEE REVERSED ON THE GROUND
THAT THE JUDGMENT WAS WITHOUT THE FINALITY ENTITLING IT TO CREDIT UNDER
THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION, ART. IV, SEC. 1. 
180 TENN. 353, 175 S.W.2D 324.  WE GRANTED CERTIORARI BECAUSE OF AN
ASSERTED CONFLICT WITH SISTARE V. SISTARE, 218 U.S. 1, AND BECAUSE OF
THE IMPORTANCE OF THE ISSUE RAISED.  322 U.S. 719. 

THE CONSTITUTIONAL COMMAND IS THAT "FULL FAITH AND CREDIT SHALL BE
GIVEN IN EACH STATE TO THE PUBLIC ACTS, RECORDS, AND JUDICIAL
PROCEEDINGS OF EVERY OTHER STATE."  ARTICLE IV, SEC. 1 OF THE
CONSTITUTION ALSO PROVIDES THAT "CONGRESS MAY BY GENERAL LAWS PRESCRIBE
THE MANNER IN WHICH SUCH ACTS, RECORDS AND PROCEEDINGS SHALL BE PROVED,
AND THE EFFECT THEREOF."  AND CONGRESS HAS ENACTED THAT JUDGMENTS
"SHALL HAVE SUCH FAITH AND CREDIT GIVEN TO THEM IN EVERY COURT WITHIN
THE UNITED STATES AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE
STATE FROM WHICH THEY ARE TAKEN."  ACT OF MAY 26, 1790, C. 11, 1 STAT.
122, AS AMENDED, 28 U.S.C. SEC. 687. 

IN SISTARE V. SISTARE, SUPRA, 16-17, THIS COURT CONSIDERED WHETHER A
DECREE FOR FUTURE ALIMONY, BROUGHT TO A SISTER STATE, WAS ENTITLED TO
FULL FAITH AND CREDIT AS TO INSTALLMENTS WHICH HAD ACCRUED, BUT WHICH
HAD NOT BEEN REDUCED TO A FURTHER JUDGMENT.  THE COURT HELD THAT A
DECREE FOR FUTURE ALIMONY IS, UNDER THE CONSTITUTION AND THE STATUTE,
ENTITLED TO CREDIT AS TO PAST DUE INSTALLMENTS, IF THE RIGHT TO THEM IS
"ABSOLUTE AND VESTED," EVEN THOUGH THE DECREE MIGHT BE MODIFIED
PROSPECTIVELY BY FUTURE ORDERS OF THE COURT.  SEE ALSO BARBER V.
BARBER, 21 HOW.  582.  THE SISTARE CASE ALSO DECIDED THAT SUCH A DECREE
WAS NOT FINAL, AND THEREFORE NOT ENTITLED TO CREDIT, IF THE PAST DUE
INSTALLMENTS WERE SUBJECT RETROACTIVELY TO MODIFICATION OR RECALL BY
THE COURT AFTER THEIR ACCRUAL.  SEE ALSO LYNDE V. LYNDE, 181 U.S. 183,
187. 

THE SISTARE CASE CONSIDERED THE APPLICABILITY OF THE FULL FAITH AND
CREDIT CLAUSE, ONLY AS TO DECREES FOR FUTURE ALIMONY SOME OF THE
INSTALLMENTS OF WHICH HAD ACCRUED.  THE PRESENT SUIT WAS NOT BROUGHT
UPON A DECREE OF THAT NATURE, BUT UPON A MONEY JUDGMENT FOR ALIMONY
ALREADY DUE AND OWING TO THE PETITIONER, AS TO WHICH EXECUTION WAS
ORDERED TO ISSUE.  THE SUPREME COURT OF TENNESSEE APPLIED TO THIS MONEY
JUDGMENT THE DISTINCTION TAKEN IN THE SISTARE CASE AS TO DECREES FOR
FUTURE ALIMONY.  IT CONCLUDED THAT BY THE LAW OF NORTH CAROLINA THE
JUDGMENT FOR THE SPECIFIC AMOUNT OF ALIMONY ALREADY ACCRUED, WAS
SUBJECT TO MODIFICATION BY THE COURT WHICH AWARDED IT, THAT IT WAS NOT
A FINAL JUDGMENT UNDER THE RULE OF THE SISTARE CASE, AND THEREFORE WAS
NOT ENTITLED TO FULL FAITH AND CREDIT. 

AS WE ARE OF OPINION THAT THE TENNESSEE SUPREME COURT ERRONEOUSLY
CONSTRUED THE LAW OF NORTH CAROLINA AS TO THE FINALITY OF THE JUDGMENT
SUED UPON HERE, IT IS UNNECESSARY TO CONSIDER WHETHER THE RULE OF THE
SISTARE CASE AS TO DECREES FOR FUTURE ALIMONY IS ALSO APPLICABLE TO
JUDGMENTS SUBSEQUENTLY ENTERED FOR ARREARS OF ALIMONY.  COMPARE LYNDE
V. LYNDE, SUPRA, 187, WHERE THIS COURT DISTINGUISHED BETWEEN A DECREE
FOR ARREARS OF ALIMONY AND ONE FOR FUTURE ALIMONY, SOME OF THE
INSTALLMENTS OF WHICH HAD ACCRUED.  SEE ALSO AUDUBON V. SHUFELDT, 181
U.S. 575, 577-578.  FOR THE SAME REASON, IT IS UNNECESSARY TO CONSIDER
WHETHER A DECREE OR JUDGMENT FOR ALIMONY ALREADY ACCRUED, WHICH IS
SUBJECT TO MODIFICATION OR RECALL IN THE FORUM WHICH GRANTED IT, BUT IS
NOT YET SO MODIFIED, IS ENTITLED TO FULL FAITH AND CREDIT UNTIL SUCH
TIME AS IT IS MODIFIED.  CF. LEVINE V. LEVINE, 95 ORE.  94, 109-113,
187 P. 609; HUNT V. MONROE, 32 UTAH 428, 440, 91 P. 269; AND COMPARE
MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268, 275-276, AND CASES CITED. 

WE ASSUME FOR PRESENT PURPOSES THAT PETITIONER'S JUDGMENT FOR ACCRUED
ALIMONY IS NOT ENTITLED TO FULL FAITH AND CREDIT, IF BY THE LAW OF
NORTH CAROLINA IT IS SUBJECT TO MODIFICATION.  THE REFUSAL OF THE
TENNESSEE SUPREME COURT TO GIVE CREDIT TO THAT JUDGMENT BECAUSE OF ITS
NATURE IS A RULING UPON A FEDERAL RIGHT, AND THE SUFFICIENCY OF THE
GROUNDS OF DENIAL IS FOR THIS COURT TO DECIDE.  MAGNOLIA PETROLEUM CO.
V. HUNT, 320 U.S. 430, 443, AND CASES CITED.  AND IN DETERMINING THE
APPLICABLE LAW OF NORTH CAROLINA, THIS COURT REEXAMINES THE ISSUE WITH
DEFERENCE TO THE OPINION OF THE TENNESSEE COURT, ALTHOUGH WE CANNOT
ACCEPT ITS VIEW OF THE LAW OF NORTH CAROLINA AS CONCLUSIVE.  THIS IS
NOT A CASE WHERE A QUESTION OF LOCAL LAW IS PECULIARLY WITHIN THE
COGNIZANCE OF THE LOCAL COURTS IN WHICH THE CASE AROSE.  THE
DETERMINATION OF NORTH CAROLINA LAW CAN BE MADE BY THIS COURT AS
READILY AS BY THE TENNESSEE COURTS, AND SINCE A FEDERAL RIGHT IS
ASSERTED, IT IS THE DUTY OF THIS COURT, UPON AN INDEPENDENT
INVESTIGATION, TO DETERMINE FOR ITSELF THE LAW OF NORTH CAROLINA.  SEE
ADAM V. SAENGER, 303 U.S. 59, 64, AND CASES CITED. 

WE ARE THUS BROUGHT TO THE QUESTION WHETHER, BY THE LAW OF NORTH
CAROLINA, THE JUDGMENT WHICH PETITIONER HAS SECURED IN THAT STATE FOR
ARREARS OF ALIMONY IS SO WANTING IN FINALITY AS NOT TO BE WITHIN THE
COMMAND OF THE CONSTITUTION AND THE ACT OF CONGRESS.  OUR EXAMINATION
OF THE NORTH CAROLINA LAW ON THIS SUBJECT MUST BE IN THE LIGHT OF THE
ADMONITION OF SISTARE V. SISTARE, SUPRA, 22, THAT "EVERY REASONABLE
IMPLICATION MUST BE RESORTED TO AGAINST THE EXISTENCE OF" A POWER TO
MODIFY OR REVOKE INSTALLMENTS OF ALIMONY ALREADY ACCRUED "IN THE
ABSENCE OF CLEAR LANGUAGE MANIFESTING AN INTENTION TO CONFER IT."  THE
ADMONITION IS NONE THE LESS TO BE HEEDED WHEN THE DEBT HAS BEEN REDUCED
TO A JUDGMENT UPON WHICH EXECUTION HAS BEEN DIRECTED TO ISSUE. 

STATS. OF 1943, MICHIE, SEC. 50-16), UNDER WHICH PETITIONER BROUGHT HER
SUIT FOR SEPARATION AND ALIMONY, PROVIDES THAT "IF ANY HUSBAND SHALL
SEPARATE HIMSELF FROM HIS WIFE AND FAIL TO PROVIDE HER AND THE CHILDREN
OF THE MARRIAGE WITH  ...  NECESSARY SUBSISTENCE," SHE MAY MAINTAIN AN
ACTION IN THE SUPERIOR COURT TO HAVE A "REASONABLE SUBSISTENCE"
ALLOTTED AND PAID TO HER.  IT DECLARES THAT "THE ORDER OF ALLOWANCE
...  MAY BE MODIFIED OR VACATED AT ANY TIME, ON THE APPLICATION OF
EITHER PARTY OR OF ANY ONE INTERESTED." 

THIS STATUTE BY ITS TERMS MAKES PROVISION ONLY FOR THE MODIFICATION
OF THE "ORDER OF ALLOWANCE," NOT OF A JUDGMENT RENDERED FOR THE AMOUNT
OF THE UNPAID ALLOWANCES WHICH HAVE ACCRUED UNDER SUCH AN ORDER.  NOR
DOES IT STATE THAT THE ORDER OF ALLOWANCE MAY BE MODIFIED RETROACTIVELY
AS TO ALLOWANCES ALREADY ACCRUED.  THE ORIGINAL NORTH CAROLINA JUDGMENT
ORDERING THE PAYMENT OF SUBSISTENCE INSTALLMENTS OF ALIMONY IS NOT IN
THE RECORD, AND WE ARE NOT ADVISED OF ITS TERMS.  RESPONDENT PLACES HIS
RELIANCE NOT ON THEM, BUT UPON THE NORTH CAROLINA LAW, APART FROM THE
TERMS OF THE DECREE, AS PROVIDING FOR MODIFICATION OF SUCH A JUDGMENT. 
BUT WE ARE AWARE OF NO STATUTE OR DECISION OF ANY COURT OF NORTH
CAROLINA AND NONE HAS BEEN CITED, TO THE EFFECT THAT AN UNCONDITIONAL
JUDGMENT OF THAT STATE FOR ACCRUED ALLOWANCES OF ALIMONY MAY BE
MODIFIED OR RECALLED AFTER ITS RENDITION.  INDEED, WE FIND NO
PRONOUNCEMENT OF ANY NORTH CAROLINA COURT THAT BEFORE SUCH A JUDGMENT
IS RENDERED, AN ORDER FOR FUTURE ALLOWANCES MAY BE MODIFIED OR SET
ASIDE WITH RESPECT TO ALLOWANCES WHICH HAVE ACCRUED AND ARE DUE AND
OWING. 

THE SUPREME COURT OF TENNESSEE FOUND NO SUPPORT IN NORTH CAROLINA
STATUTES OR JUDICIAL DECISIONS FOR ITS CONCLUSION THAT THE NORTH
CAROLINA JUDGMENT FOR ARREARS OF ALIMONY IS SUBJECT TO SUCH
MODIFICATION, OTHER THAN A SINGLE PARAGRAPH OF THE OPINION OF THE
SUPREME COURT OF NORTH CAROLINA AT AN EARLY STAGE OF THE SUIT WHICH
RESULTED IN THE JUDGMENT UPON WHICH SUIT WAS HERE BROUGHT.  FN1  BUT
THESE REMARKS, AS THEIR CONTEXT SHOWS, APPEAR TO BE ADDRESSED, NOT TO
THE POWER OF THE COURT TO MODIFY OR SET ASIDE A JUDGMENT FOR ARREARS OF
ALIMONY, BUT TO THE AUTHORITY CONFERRED BY N.C. CON.  STAT.  SEC. 1667
UPON THE COURT IN THE SUIT FOR ALIMONY TO MODIFY ITS PREVIOUS ORDER FOR
THE ALLOWANCE OF SUBSISTENCE. 

CONSISTENTLY WITH SISTARE V. SISTARE, SUPRA, THE PASSAGE POINTS OUT
THAT SUCH AN ORDER IS NOT FINAL IN THE PROCEEDING IN WHICH IT IS
ENTERED, BUT IS SUBJECT TO MODIFICATION BY FURTHER ORDERS OF THE
COURT.  IN THIS RESPECT THE NORTH CAROLINA COURT WAS BUT FOLLOWING ITS
OWN PRONOUNCEMENT IN THE FIRST APPEAL IN THE SEPARATION PROCEEDING,
BARBER V. BARBER, SUPRA, 216 N.C. 232, 234, AND IN NUMEROUS OTHER
DECISIONS OF THAT COURT.  SEE CREWS V. CREWS, 175 N.C. 168, 173, 95
S.E. 149; ANDERSON V. ANDERSON, 183 N.C. 139, 142, 110 S.E. 863;
TIEDEMANN V. TIEDEMANN, 204 N.C. 682, 683, 169 S.E. 422; WRIGHT V.
WRIGHT, 216 N.C. 693, 696, 6 S.E.2D 555.  BUT IT IS QUITE ANOTHER
MATTER TO SAY THAT PAST DUE INSTALLMENTS MAY BE MODIFIED, OR THAT A
JUDGMENT, NOT BY ITS TERMS CONDITIONAL AND ON WHICH EXECUTION MAY
ISSUE, IS SUBJECT TO MODIFICATION BECAUSE THE OBLIGATION FOR ACCRUED
ALIMONY COULD HAVE BEEN MODIFIED OR SET ASIDE BEFORE ITS MERGER IN THE
JUDGMENT.  AND IN FACT THE NORTH CAROLINA SUPREME COURT HAS BEEN AT
PAINS TO INDICATE THAT SUCH IS NOT THE CASE. 

IN CONSIDERING WHETHER THE DECREE OF ANOTHER STATE FOR FUTURE ALIMONY
IS ENTITLED TO FULL FAITH AND CREDIT, THE NORTH CAROLINA COURT
RECOGNIZES THAT SUCH FAITH AND CREDIT IS REQUIRED AS TO PAST DUE
INSTALLMENTS WHEN IT DOES NOT APPEAR THAT THEY MAY BE MODIFIED OR
REVOKED.  AND IT INTERPRETS GENERAL PROVISIONS FOR MODIFICATION OF A
DECREE DIRECTING FUTURE ALLOWANCES OF ALIMONY AS INAPPLICABLE TO
ALLOWANCES WHICH HAVE BECOME DUE AND OWING.  SINCE ITS DECISION IN
BARBER V. BARBER, IN THE 217TH N.C., IT HAS HELD IN LOCKMAN V. LOCKMAN,
220 N.C. 95, THAT SUCH A DECREE IN FLORIDA IS ENTITLED TO CREDIT IN
NORTH CAROLINA WITH RESPECT TO ARREARS IN ALIMONY.  THE COURT SAID, AT
PAGE 103: 

"THE RULE IN NORTH CAROLINA IS THAT A JUDGMENT AWARDING ALIMONY IS A
JUDGMENT DIRECTING THE PAYMENT OF MONEY BY THE DEFENDANT, AND BY SUCH
JUDGMENT THE DEFENDANT BECOMES INDEBTED TO THE PLAINTIFF FOR SUCH
ALIMONY AS IT FALLS DUE, AND WHEN THE DEFENDANT IS IN ARREARS IN THE
PAYMENT OF ALIMONY, THE COURT MAY JUDICIALLY DETERMINE THE AMOUNT DUE
AND ENTER DECREE ACCORDINGLY.  IT HAS NO LESS DIGNITY THAN ANY OTHER
CONTRACTUAL OBLIGATION.  BARBER V. BARBER, 217 N.C. 422, 8 S.E.(2D)
204.  IN DUSS V. DUSS, 92 FLA. 1081, THE OBLIGATION OF THE DIVORCED
HUSBAND TO PAY ALIMONY WAS STATED IN LANGUAGE OF SIMILAR IMPORT."  THE
SUPREME COURT OF NORTH CAROLINA THUS HAS ASSIMILATED THE LAW OF NORTH
CAROLINA TO THAT OF FLORIDA, UNDER WHICH IT HAD JUST HELD THAT PAST DUE
INSTALLMENTS OF ALIMONY WERE NOT SUBJECT TO MODIFICATION.  IN THIS
STATE OF THE LAW OF NORTH CAROLINA, WE CANNOT SAY THAT PAST DUE
INSTALLMENTS UNDER A DECREE FOR FUTURE ALIMONY CAN BE REVOKED OR
MODIFIED.    STILL LESS CAN WE SAY THAT A JUDGMENT FOR SUCH
INSTALLMENTS CAN BE SO MODIFIED.  THE NORTH CAROLINA SUPREME COURT SAID
IN THE BARBER CASE, 217 N.C. 422, 428:  "THERE IS NO REASON WHY A
JUDGMENT SHOULD NOT BE RENDERED ON AN ALLOWANCE FOR ALIMONY, WHICH IS A
DEBT - AND MORE THAN AN ORDINARY ONE."  AND ELSEWHERE IN ITS OPINION IT
SAID (PAGE 427): 

"A JUDGMENT AWARDING ALIMONY IS A JUDGMENT DIRECTING THE PAYMENT OF
MONEY BY A DEFENDANT TO PLAINTIFF AND, BY SUCH JUDGMENT, THE DEFENDANT
THEREUPON BECOMES INDEBTED TO THE PLAINTIFF FOR SUCH ALIMONY AS IT
BECOMES DUE, AND WHEN THE DEFENDANT IS IN ARREARS IN THE PAYMENT OF
ALIMONY THE COURT MAY, ON APPLICATION OF PLAINTIFF, JUDICIALLY
DETERMINE THE AMOUNT THEN DUE AND ENTER ITS DECREE ACCORDINGLY.  THE
DEFENDANT, BEING A PARTY TO THE ACTION AND HAVING BEEN GIVEN DUE NOTICE
OF THE MOTION, IS BOUND BY SUCH DECREE, AND THE PLAINTIFF IS ENTITLED
TO ALL THE REMEDIES PROVIDED BY LAW FOR THE ENFORCEMENT THEREOF." 

WE DO NOT FIND IN THE LANGUAGE ON WHICH THE TENNESSEE COURT RELIED
ANY CLEAR OR UNEQUIVOCAL INDICATION THAT THE JUDGMENT FOR ARREARS OF
ALIMONY, ON WHICH EXECUTION WAS DIRECTED TO ISSUE, WAS ITSELF SUBJECT
TO MODIFICATION OR RECALL.  TRUE, AS THE OPINION OF THE NORTH CAROLINA
COURT STATES, THE JUDGMENT FOR ARREARS OF ALIMONY WAS NOT A FINAL
JUDGMENT IN THE SEPARATION SUIT.  AS TO FUTURE ALIMONY PAYMENTS NOT
MERGED IN THE MONEY JUDGMENT, THE ALLOTMENTS ORDERED ARE, BY THE TERMS
OF THE STATUTE, SUBJECT TO MODIFICATION.  BUT IT WOULD HARDLY BE
CONSISTENT WITH THE COURT'S STATEMENTS, THAT ACCRUED ALIMONY IS A DEBT
FOR WHICH A JUDGMENT MAY BE RENDERED, THAT THE DEFENDANT IS BOUND BY
THE JUDGMENT, AND THAT "THE PLAINTIFF IS ENTITLED TO ALL THE REMEDIES
PROVIDED BY LAW" FOR ITS ENFORCEMENT, TO SAY THAT THE JUDGMENT MAY BE
MODIFIED OR SET ASIDE BY VIRTUE OF A STATUTE WHICH IN TERMS MERELY
AUTHORIZES MODIFICATION OF THE ORDER FOR PAYMENT OF ALLOWANCES. 

THE JUDGMENT OF A COURT OF GENERAL JURISDICTION OF A SISTER STATE
DULY AUTHENTICATED IS PRIMA FACIE EVIDENCE OF THE JURISDICTION OF THE
COURT TO RENDER IT AND OF THE RIGHT WHICH IT PURPORTS TO ADJUDICATE. 
ADAM V. SAENGER, SUPRA, 62, AND CASES CITED.  THE PRESENT JUDGMENT IS
ON ITS FACE AN UNCONDITIONAL ADJUDICATION OF PETITIONER'S RIGHT TO
RECOVER A SUM OF MONEY DUE AND OWING WHICH, BY THE LAW OF THE STATE, IS
A DEBT.  THE JUDGMENT ORDERS THAT EXECUTION ISSUE.  TO OVERCOME THE
PRIMA FACIE EFFECT OF THE JUDGMENT RECORD, IT IS NECESSARY THAT THERE
BE SOME PERSUASIVE INDICATION THAT NORTH CAROLINA LAW SUBJECTS THE
JUDGMENT TO THE INFIRMITY OF MODIFICATION OR RECALL WHICH IS WANTING
HERE. 

UPON FULL CONSIDERATION OF THE LAW OF NORTH CAROLINA WE CONCLUDE THAT
RESPONDENT HAS NOT OVERCOME THE PRIMA FACIE VALIDITY AND FINALITY OF
THE JUDGMENT SUED UPON.  WE CANNOT SAY THAT THE STATUTORY AUTHORITY TO
MODIFY OR RECALL AN ORDER PROVIDING FOR FUTURE ALLOWANCES OF
INSTALLMENTS OF ALIMONY EXTENDS TO A JUDGMENT FOR OVERDUE INSTALLMENTS
OR THAT SUCH A JUDGMENT IS NOT ENTITLED TO FULL FAITH AND CREDIT. 
REVERSED. 

FN1  THE LANGUAGE QUOTED FROM BARBER V. BARBER, 217 N.C. 422, 427-28,
IS AS FOLLOWS: 

"IT IS NOT A FINAL JUDGMENT IN THE ACTION, SINCE BOTH THE PLAINTIFF
AND THE DEFENDANT MAY APPLY FOR OTHER ORDERS AND FOR MODIFICATIONS OF
ORDERS ALREADY MADE, WHICH THE COURT WILL ALLOW AS THE ENDS OF JUSTICE
REQUIRE, ACCORDING TO THE CHANGED CONDITIONS OF THE PARTIES.  THE
ORDERS MADE FROM TIME TO TIME ARE, OF COURSE, RES JUDICATA, BETWEEN THE
PARTIES, SUBJECT TO THIS POWER OF THE COURT TO MODIFY THEM.  THE
CONSOLIDATION OF THE AMOUNTS DUE, WHEN ASCERTAINED IN ONE ORDER OR
DECREE, DOES NOT INVEST ANY OF THESE ORDERS WITH ANY OTHER CHARACTER
THAN THAT WHICH THEY ORIGINALLY HAD.  IF THE DEFENDANT IS IN COURT ONLY
BY REASON OF THE ORIGINAL SERVICE OF SUMMONS, HE IS IN COURT ONLY FOR
SUCH ORDERS AS, UPON MOTION, ARE APPROPRIATE AND CUSTOMARY IN THE
PROCEEDING THUS INSTITUTED.  THERE IS NO REASON WHY A JUDGMENT SHOULD
NOT BE RENDERED ON AN ALLOWANCE FOR ALIMONY, WHICH IS A DEBT - AND MORE
THAN AN ORDINARY ONE.  THE COURT BELOW, IN ITS SOUND DISCRETION, WHICH
IS NOT ORDINARILY REVIEWABLE BY THIS COURT, UNDER THE MOTION OF
PLAINTIFF IN THIS CAUSE CAN HEAR THE FACTS, CHANGE OF CONDITIONS OF THE
PARTIES, THE PRESENT NEEDS OF SUPPORT OF ANY OF THE CHILDREN AND, IN
ITS SOUND DISCRETION, RENDER JUDGMENT FOR WHAT DEFENDANT OWES UNDER THE
FORMER JUDGMENT AND FAILED TO PAY AND SEE TO IT THAT SUCH JUDGMENT IS
GIVEN TO PROTECT PLAINTIFF, AND 'GIVE DILIGENCE TO MAKE HER (YOUR)
CALLING AND ELECTION SURE.'" 

MR. JUSTICE JACKSON, CONCURRING. 

I CONCUR IN THE RESULT, BUT I THINK THAT THE JUDGMENT OF THE NORTH
CAROLINA COURT WAS ENTITLED TO FAITH AND CREDIT IN TENNESSEE EVEN IF IT
WAS NOT A FINAL ONE.  ON THIS ASSUMPTION I DO NOT FIND IT NECESSARY OR
RELEVANT TO EXAMINE NORTH CAROLINA LAW AS TO WHETHER ITS JUDGMENT MIGHT
UNDER SOME HYPOTHETICAL CIRCUMSTANCES BE MODIFIED. 

NEITHER THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION NOR THE
ACT OF CONGRESS IMPLEMENTING IT SAYS ANYTHING ABOUT FINAL JUDGMENTS OR,
FOR THAT MATTER, ABOUT ANY JUDGMENTS.  BOTH REQUIRE THAT FULL FAITH AND
CREDIT BE GIVEN TO "JUDICIAL PROCEEDINGS" WITHOUT LIMITATION AS TO
FINALITY.  UPON RECOGNITION OF THE BROAD MEANING OF THAT TERM MUCH MAY
SOME DAY DEPEND. 

WHATEVER ELSE THIS NORTH CAROLINA DOCUMENT MIGHT BE, NO ONE DENIES
THAT IT IS A STEP IN A JUDICIAL PROCEEDING, INSTITUTED VALIDLY UNDER
THE STRICTEST STANDARDS OF DUE PROCESS.  ON ITS FACE IT IS FINAL AND BY
ITS TERMS IT AWARDS A MONEY JUDGMENT IN A LIQUIDATED AMOUNT, PRESENTLY
COLLECTIBLE AND PROVIDES "THAT EXECUTION ISSUE THEREFOR."  TENNESSEE
SHOULD HAVE RENDERED SUBSTANTIALLY THE SAME JUDGMENT THAT IT RECEIVED
FROM THE COURTS OF NORTH CAROLINA.  IF LATER A DECREE IS MADE IN NORTH
CAROLINA WHICH MODIFIES OR AMENDS ITS JUDGMENT, THAT MODIFICATION OR
AMENDMENT WILL ALSO BE ENTITLED TO FAITH AND CREDIT IN TENNESSEE. 

OF COURSE A JUDGMENT IS ENTITLED TO FAITH AND CREDIT FOR JUST WHAT IT
IS, AND NO MORE.  BUT ITS OWN TERMS CONSTITUTE A DETERMINATION BY THE
RENDERING COURT AS TO WHAT IT IS, AND AN ENFORCING COURT MAY NOT SEARCH
THE LAWS OF THE STATE TO SEE WHETHER THE JUDGMENT TERMS ARE ERRONEOUS. 
OF COURSE, IF A JUDGMENT BY ITS TERMS RESERVES POWER TO MODIFY OR
STATES CONDITIONS, A JUDGMENT ENTERED UPON IT COULD APPROPRIATELY MAKE
LIKE RESERVATIONS OR CONDITIONS.  NO SUCH APPEAR IN THIS JUDGMENT
UNLESS THEY ARE TO BE ANNEXED TO IT BY A STUDY OF THE LAW OF NORTH
CAROLINA.  ANY APPLICATION FOR SUCH RELIEF SHOULD BE ADDRESSED TO THE
NORTH CAROLINA COURT AND NOT TO THE TENNESSEE COURT NOR TO THIS ONE. 
THE PURPOSE OF THE FULL FAITH AND CREDIT CLAUSE IS TO LENGTHEN THE ARM
OF THE STATE COURT AND TO ELIMINATE STATE LINES AS A SHELTER FROM
JUDICIAL PROCEEDINGS.  THIS IS DEFEATED BY ENTERTAINING A PLEA TO
REVIEW THE SUPPORT IN STATE LAW FOR THE JUDGMENT AS IT HAS BEEN
RENDERED, WHICH IS A DELAYING INQUIRY AS HAS BEEN SHOWN BY THIS CASE. 
..END :




















KANN V. UNITED STATES, 323 U.S. 88 


NO. 35.  ARGUED NOVEMBER 7, 1944.  - DECIDED DECEMBER 4, 1944.  - 140
F.2D 380, REVERSED. 


1.  AN ESSENTIAL ELEMENT OF THE OFFENSE UNDER SEC. 215 OF THE CRIMINAL
CODE IS THAT THE USE OF THE MAILS BE FOR THE PURPOSE OF EXECUTING THE
FRAUDULENT SCHEME.  P. 95. 

2.  THE FRAUDULENT SCHEME ALLEGED BEING ONE TO OBTAIN MONEY, AND
PARTICIPANTS HAVING OBTAINED THE MONEY BY CASHING CHECKS AT BANKS WHICH
THEREUPON BECAME HOLDERS IN DUE COURSE, THE SUBSEQUENT MAILINGS OF THE
CHECKS BY THE BANKS TO THE DRAWEES WERE NOT "FOR THE PURPOSE OF
EXECUTING SUCH SCHEME," WITHIN THE MEANING OF SEC. 215 OF THE CRIMINAL
CODE, AND THE CONVICTION HERE CAN NOT BE SUSTAINED.  P. 94. 

KANN V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 321 U.S. 761, TO REVIEW THE AFFIRMANCE OF A CONVICTION OF
USING THE MAILS TO DEFRAUD IN VIOLATION OF SEC. 215 OF THE CRIMINAL
CODE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE TOOK THIS CASE BECAUSE IT INVOLVES IMPORTANT QUESTIONS ARISING
UNDER SEC. 215 OF THE CRIMINAL CODE.  FN1  THE SECTION PROVIDES THAT
"WHOEVER, HAVING DEVISED  ...  ANY SCHEME OR ARTIFICE TO DEFRAUD, OR
FOR OBTAINING MONEY OR PROPERTY BY MEANS OF FALSE OR FRAUDULENT
PRETENSES, REPRESENTATIONS, OR PROMISES,  ...  SHALL, FOR THE PURPOSE
OF EXECUTING SUCH SCHEME OR ARTIFICE OR ATTEMPTING SO TO DO, PLACE, OR
CAUSE TO BE PLACED, ANY LETTER  ...  IN ANY POST OFFICE, OR  ... CAUSE
TO BE DELIVERED BY MAIL ACCORDING TO THE DIRECTION THEREON  ...  ANY
SUCH LETTER,  ... SHALL BE FINED NOT MORE THAN $1,000, OR IMPRISONED
NOT MORE THAN FIVE YEARS, OR BOTH." 

THE PETITIONER AND SIX OTHERS WERE INDICTED IN THREE COUNTS FOR USING
THE MAIL IN EXECUTION OF A SCHEME TO DEFRAUD.  PETITIONER'S CO
DEFENDANTS PLEADED NOLO CONTENDERE.  HE WAS TRIED AND CONVICTED ON THE
SECOND AND THIRD COUNTS, AND THE CIRCUIT COURT OF APPEALS AFFIRMED THE
CONVICTION.  FN2 

THE INDICTMENT ALLEGED THAT TRIUMPH EXPLOSIVES, INC. IS A MARYLAND
CORPORATION ENGAGED IN THE MANUFACTURE OF MUNITIONS, FOR THE UNITED
STATES, A LARGE AMOUNT OF WHOSE STOCK IS HELD BY THE GENERAL PUBLIC;
THAT PETITIONER WAS PRESIDENT, AND A DIRECTOR, ONE OF HIS CO-DEFENDANTS
WAS AN OFFICER AND DIRECTOR AND FIVE OF THEM SALARIED EXECUTIVE AND
ADMINISTRATIVE EMPLOYES OF THE COMPANY.  THE INDICTMENT CONTINUED THAT
THE DEFENDANTS DEVISED A SCHEME TO DEFRAUD TRIUMPH AND ITS STOCKHOLDERS
AND OBTAIN MONEY FOR THEMSELVES BY DIVERTING PART OF THE PROFITS OF
TRIUMPH ON ITS GOVERNMENT CONTRACTS TO A CORPORATION KNOWN AS ELK MILLS
LOADING CORPORATION AND DISTRIBUTING SUCH PROFITS THROUGH SALARIES,
DIVIDENDS, AND BONUSES TO BE PAID BY ELK MILLS TO THE DEFENDANTS; THAT,
IN PURSUANCE OF THE SCHEME, ELK MILLS WAS ORGANIZED, SOME DEFENDANTS
ELECTED OFFICERS AND DIRECTORS, AND OTHERS ELECTED CONSULTANTS AT
SUBSTANTIAL SALARIES, AND 49% OF ITS STOCK DISTRIBUTED TO FIVE
DEFENDANTS, WHO WERE ADMINISTRATIVE EMPLOYES OF TRIUMPH, WITHOUT
CONSIDERATION; THAT TRIUMPH, PURSUANT TO THE PLAN, SUBCONTRACTED A
GOVERNMENT CONTRACT TO ELK MILLS FOR 51% OF THE LATTER'S STOCK, ON A
BASIS WHICH WOULD YIELD ELK MILLS LARGE PROFITS, AND WOULD INVOLVE
UTILIZATION OF THE EMPLOYES AND SERVICES OF TRIUMPH IN THE PERFORMANCE
OF THE SUBCONTRACT; AND THAT THE DEFENDANTS, PURSUANT TO THE SCHEME,
RECEIVED FROM ELK MILLS SALARIES AND BONUSES FOR WHICH NO SUBSTANTIAL
SERVICES WERE RENDERED, AND DIVIDENDS, TO THE DETRIMENT OF TRIUMPH.  IT
WAS ALLEGED THAT THE FRAUDULENT SCHEME WAS MISREPRESENTED UPON THE
MINUTES OF TRIUMPH AND FALSE REASONS FOR THE TRANSACTION GIVEN. 
FURTHER, THAT, PURSUANT TO THE SCHEME, IT WAS TO BE REPRESENTED THAT
SOME OF THE DEFENDANTS WOULD PURCHASE WITH THEIR OWN MONEY, AND CONVEY
TO ELK MILLS, CERTAIN LANDS FOR THE ISSUE TO THEM OF 49% OF THE STOCK
OF ELK MILLS, WHEREAS IT WAS NOT INTENDED THAT THESE DEFENDANTS SHOULD
USE THEIR OWN FUNDS IN PURCHASING THE LAND TO BE TRANSFERRED IN PAYMENT
OF THE STOCK, AND THAT THIS PLAN WAS CARRIED OUT.  IN SUMMARY, IT WAS
CHARGED THAT THE SCHEME WAS SUCH THAT TRIUMPH SHOULD BE DEPRIVED OF THE
PROFITS RIGHTFULLY BELONGING TO IT AND THESE PROFITS SHOULD BE
DISTRIBUTED AMONGST THE DEFENDANTS THROUGH THE INSTRUMENTALITY OF ELK
MILLS; THAT BONUSES WERE TO BE PAID TO EACH OF THE DEFENDANTS OUT OF
THE PROFITS OF ELK MILLS, AND SUCH BONUSES WERE PAID. 

IN THE FIRST COUNT IT WAS CHARGED THAT THE DEFENDANTS, FOR THE
PURPOSE OF EXECUTING THE SCHEME, CAUSED TO BE DELIVERED BY MAIL A CHECK
DRAWN BY ELK MILLS ON THE PEOPLES BANK OF ELKTON, MARYLAND, IN FAVOR OF
PETITIONER.  FN3  IN THE SECOND, IT WAS CHARGED THAT, FOR THE SAME
PURPOSE, THE DEFENDANTS CAUSED TO BE PLACED IN THE POST OFFICE AT
ELKTON A CHECK DRAWN BY ONE JACKSON ON INDUSTRIAL TRUST COMPANY OF
WILMINGTON, DELAWARE.  IN THE THIRD, IT WAS CHARGED THAT, FOR THE SAME
PURPOSE, THE DEFENDANTS CAUSED TO BE DELIVERED BY MAIL A CHECK DRAWN BY
ELK MILLS ON THE PEOPLES BANK OF ELKTON IN FAVOR OF ONE OF THE
DEFENDANTS, WILLIS. 

AT THE TRIAL THE GOVERNMENT PROVED THE CORPORATE EXISTENCE OF
TRIUMPH, PROVED THAT TRIUMPH HELD GOVERNMENT CONTRACTS, THAT ELK MILLS
WAS INCORPORATED AND BECAME SUBCONTRACTOR OF A GOVERNMENT CONTRACT,
THAT THE STOCK OF ELK MILLS WAS DISTRIBUTED AMONGST CERTAIN OF THE
DEFENDANTS AND TRIUMPH, AS IN THE INDICTMENT ALLEGED, THAT, UNDER THE
SUBCONTRACT, ELK MILLS WAS IN RECEIPT OF SUBSTANTIAL PROFITS AND THAT
THESE PROFITS WERE USED TO PAY SALARIES AND BONUSES TO THE DEFENDANTS,
INCLUDING PETITIONER.  THE GOVERNMENT OFFERED EVIDENCE TENDING TO PROVE
THAT CERTAIN OF THESE ACTIONS HAD BEEN CONCEALED FROM OTHER DIRECTORS
OF TRIUMPH AND THAT THE TRUE SITUATION WAS DISCOVERED WHEN A FEDERAL
OFFICER MADE AN AUDIT OF TRIUMPH'S TRANSACTIONS UNDER GOVERNMENT
CONTRACTS. 

THE PETITIONER OFFERED EVIDENCE TENDING TO PROVE THAT IN ORDER TO
EXPAND TRIUMPH'S BUSINESS TWO BANKS HAD LOANED LARGE SUMS TO TRIUMPH
UNDER WRITTEN AGREEMENTS WHICH RESTRICTED THE AMOUNT IT COULD INVEST IN
CAPITAL ASSETS AND RESTRICTED THE SALARIES AND BONUSES IT COULD PAY;
THAT THE FOUR DEFENDANTS WHO WERE EXECUTIVE EMPLOYES WERE DISSATISFIED
WITH THEIR COMPENSATION AND THREATENED TO LEAVE TRIUMPH UNLESS THEY
SHOULD RECEIVE INCREASED COMPENSATION; THAT THE DIRECTORS OF TRIUMPH
DEVISED THE PLAN OF INCORPORATING ELK MILLS AND SUBCONTRACTING WITH IT
TO MAKE POSSIBLE THE PAYMENT OF SALARIES AND BONUSES WITHOUT VIOLATING
TRIUMPH'S AGREEMENTS WITH ITS BANKS; THAT PETITIONER HAD NO OTHER
MOTIVE IN PARTICIPATING IN THE TRANSACTIONS RELATING TO ELK MILLS, AND
THAT, UPON BEING ADVISED OF THE ARRANGEMENT, TRIUMPH'S BANKS WERE OF
OPINION THAT IT DID NOT VIOLATE THE AGREEMENTS. 

IT WAS PROVED BY THE GOVERNMENT THAT ONE JACKSON CONTRACTED WITH
TRIUMPH FOR THE BUILDING OF A FACTORY FOR ELK MILLS ON LAND CONVEYED TO
TRIUMPH BY SEVERAL OF THE DEFENDANTS.  SOME OF THESE DEFENDANTS
INFORMED THE CONTRACTOR THAT HE MIGHT USE THE TIMBER STANDING ON THE
LAND IN THE CONSTRUCTION OF THE BUILDING.  AFTER HE HAD DONE SO THEY
FALSELY REPRESENTED TO HIM THAT THEY OWNED THE TIMBER AND THAT HE MUST
PAY THEM SOME $12,000 FOR IT.  HE DID SO, BY A CHECK, TO THEIR ORDER,
AND, IN TURN, BILLED TRIUMPH FOR THE SAME AMOUNT.  THERE WAS EVIDENCE
THAT THE PETITIONER WAS ASKED WHETHER IT WAS PROPER TO PAY THE BILL AND
THAT HE STATED HE DID NOT SEE WHY NOT.  IT IS NOT CONTENDED THAT THE
PETITIONER RECEIVED ANY OF THIS MONEY, AND HIS EVIDENCE TENDED TO SHOW
HE HAD NO KNOWLEDGE OF THIS FRAUD PERPETRATED ON TRIUMPH. 

THE USE OF THE MAILS PROVED UNDER COUNT 2 WAS THIS:  THE CHECK OF
JACKSON, THE CONTRACTOR, FOR PURCHASE OF THE TIMBER, TO THE ORDER OF
DEFENDANTS DEIBERT, FELDMAN, KANN (NOT PETITIONER), PRIAL, AND WILLIS,
WAS BY THEM ENDORSED AND CASHED AT THE PEOPLES BANK OF ELKTON,
MARYLAND, AND WAS, BY THAT BANK, DEPOSITED IN THE MAIL TO BE DELIVERED
TO THE BANK IN WILMINGTON, DELAWARE, ON WHICH IT WAS DRAWN. 

WITH RESPECT TO THE THIRD COUNT, THE PROOF WAS THAT ELK MILLS
DELIVERED ITS CHECK ON THE PEOPLES BANK OF ELKTON FOR $5,000 TO WILLIS,
ONE OF THE EXECUTIVE EMPLOYES, AS A BONUS.  IT WAS ENDORSED BY WILLIS
AND DEPOSITED WITH THE FARMERS TRUST COMPANY OF NEWARK, DELAWARE.  THE
NEWARK BANK MAILED THE CHECK TO THE PEOPLES BANK OF ELKTON. 

THE PETITIONER CONTENDS, FIRST, THAT THERE IS NO SUBSTANTIAL EVIDENCE
THAT THE TRANSACTIONS INVOLVING ELK MILLS' SUBCONTRACT WERE OTHER THAN
INNOCENT TRANSACTIONS INTENDED TO FINANCE THE GOVERNMENT CONTRACTS HELD
BY TRIUMPH, IN CONFORMITY TO THAT COMPANY'S AGREEMENTS WITH THE BANK;
OR, IF THE TRANSACTIONS WERE FOR AN IMPROPER PURPOSE, THERE IS NO PROOF
THAT HE WAS A PARTY TO ANY IMPROPER USE OF FUNDS.  SECONDLY, THE
PETITIONER URGES THAT HE ADMITTEDLY RECEIVED NO MONEY FROM THE CHECKS
WHICH ARE DESCRIBED IN COUNTS 2 AND 3, AND THERE IS NO PROOF HE HAD
KNOWLEDGE, OR REASONABLE CAUSE TO BELIEVE, THAT THE CHECKS WOULD GO
THROUGH THE MAILS AND, THEREFORE, HE DID NOT CAUSE THEM TO BE SENT OR
DELIVERED WITHIN THE INTENT OF THE STATUTE.  THIRDLY, HE URGES THAT THE
MAILING OF THE CHECKS BY THE PAYING BANKS COULD NOT BE FOR THE PURPOSE
OF EXECUTING THE SCHEME SINCE THE DEFENDANTS TO WHOM THOSE CHECKS WERE
DELIVERED HAD RECEIVED THE MONEY REPRESENTED BY THE CHECKS AND EACH
TRANSACTION, AFTER SUCH RECEIPT, WAS IRREVOCABLE AS RESPECTS THE
DRAWER. 

THE PETITIONER STRENUOUSLY ARGUES HIS FIRST CONTENTION, BUT, IN THE
VIEW WE TAKE OF THE CASE, WE FIND IT UNNECESSARY TO REVIEW THE
EVIDENCE, IF WE WERE OTHERWISE INCLINED TO DO SO IN THE FACE OF THE
AGREEMENT OF THE COURTS BELOW THAT A CASE WAS MADE FOR THE JURY ON THE
QUESTION OF THE FRAUDULENT NATURE OF THE SCHEME AND THE PETITIONER'S
PARTICIPATION IN IT. 

WITH RESPECT TO THE SECOND CONTENTION, WHILE THERE MAY BE SOME
QUESTION AS TO WHETHER THE DEFENDANTS MAY BE SAID TO HAVE "CAUSED" THE
MAILING OF THE CHECKS, WE THINK IT A FAIR INFERENCE THAT THOSE
DEFENDANTS WHO DREW, OR THOSE WHO CASHED, THE CHECKS BELIEVED THAT THE
BANKS WHICH TOOK THEM WOULD MAIL THEM TO THE BANKS ON WHICH THEY WERE
DRAWN, AND, ASSUMING THE PETITIONER PARTICIPATED IN THE SCHEME, THEIR
KNOWLEDGE WAS HIS KNOWLEDGE.  FN4 

THE REMAINING CONTENTION IS THAT THE CHECKS WERE NOT MAILED IN THE
EXECUTION OF, OR FOR THE PURPOSE OF EXECUTING, THE SCHEME.  THE CHECK
DELIVERED TO THE FIVE DEFENDANTS BY THE BUILDING CONTRACTOR IN PAYMENT
FOR TIMBER THEY CLAIMED TO OWN WAS CASHED BY THEM AT A LOCAL BANK IN
ELKTON, MARYLAND.  BY CASHING IT THEY RECEIVED THE MONEYS IT WAS
INTENDED THEY SHOULD RECEIVE UNDER THE SCHEME.  THE ELKTON BANK BECAME
THE OWNER OF THE CHECK.  FN5  THE SAME IS TRUE OF THE BONUS CHECK
DELIVERED TO DEFENDANT WILLIS AND DEPOSITED AND CREDITED TO HIS
ACCOUNT.  THE BANKS WHICH CASHED OR CREDITED THE CHECKS, BEING HOLDERS
IN DUE COURSE, WERE ENTITLED TO COLLECT FROM THE DRAWEE BANK IN EACH
CASE AND THE DRAWER HAD NO DEFENSE TO PAYMENT.  THE SCHEME IN EACH CASE
HAD REACHED FRUITION.  THE PERSONS INTENDED TO RECEIVE THE MONEY HAD
RECEIVED IT IRREVOCABLY.  IT WAS IMMATERIAL TO THEM, OR TO ANY
CONSUMMATION OF THE SCHEME, HOW THE BANK WHICH PAID OR CREDITED THE
CHECK WOULD COLLECT FROM THE DRAWEE BANK.  IT CANNOT BE SAID THAT THE
MAILINGS IN QUESTION WERE FOR THE PURPOSE OF EXECUTING THE SCHEME, AS
THE STATUTE REQUIRES.  FN6 

THE CASE IS TO BE DISTINGUISHED FROM THOSE WHERE THE MAILS ARE USED
PRIOR TO, AND AS ONE STEP TOWARD, THE RECEIPT OF THE FRUITS OF THE
FRAUD, SUCH AS UNITED STATES V. KENOFSKEY, 243 U.S. 440.  FN7  ALSO TO
BE DISTINGUISHED ARE CASES WHERE THE USE OF THE MAILS IS A MEANS OF
CONCEALMENT SO THAT FURTHER FRAUDS WHICH ARE PART OF THE SCHEME MAY BE
PERPETRATED.  FN8  IN THESE THE MAILING HAS ORDINARILY HAD A MUCH
CLOSER RELATION TO FURTHER FRAUDULENT CONDUCT THAN HAS THE MERE
CLEARING OF A CHECK, ALTHOUGH IT IS CONCEIVABLE THAT THIS ALONE, IN
SOME SETTINGS, WOULD BE ENOUGH.  THE FEDERAL MAIL FRAUD STATUTE DOES
NOT PURPORT TO REACH ALL FRAUDS, BUT ONLY THOSE LIMITED INSTANCES IN
WHICH THE USE OF THE MAILS IS A PART OF THE EXECUTION OF THE FRAUD,
LEAVING ALL OTHER CASES TO BE DEALT WITH BY APPROPRIATE STATE LAW. 

THE GOVERNMENT ARGUES THAT THE SCHEME WAS NOT COMPLETE, THAT SO LONG
AS ELK MILLS REMAINED A SUBCONTRACTOR THE DEFENDANTS EXPECTED TO
RECEIVE FURTHER BONUSES AND PROFITS AND THAT THE CLEARING OF THESE
CHECKS IN THE ORDINARY COURSE WAS ESSENTIAL TO ITS FURTHER
PROSECUTION.  BUT, EVEN IN THAT VIEW, THE SCHEME WAS COMPLETELY
EXECUTED AS RESPECTS THE TRANSACTIONS IN QUESTION WHEN THE DEFENDANTS
RECEIVED THE MONEY INTENDED TO BE OBTAINED BY THEIR FRAUD, AND THE
SUBSEQUENT BANKING TRANSACTIONS BETWEEN THE BANKS CONCERNED WERE MERELY
INCIDENTAL AND COLLATERAL TO THE SCHEME AND NOT A PART OF IT. 

WE HOLD, THEREFORE, THAT ONE ELEMENT OF THE OFFENSE DEFINED BY THE
STATUTE, NAMELY, THAT THE MAILING MUST BE FOR THE PURPOSE OF EXECUTING
THE FRAUD, IS LACKING IN THE PRESENT CASE.  THE JUDGMENT MUST BE
REVERSED.  REVERSED. 

FN1  18 U.S.C. SEC. 338. 

FN2  140 F.2D 380. 

FN3  THE GOVERNMENT ABANDONED THE FIRST COUNT AT THE TRIAL. 

FN4  WEISS V. UNITED STATES, 120 F.2D 472; STEINER V. UNITED STATES,
134 F.2D 931; BLUE V. UNITED STATES, 138 F.2D 351. 

FN5  THIS IS SO UNDER THE UNIFORM NEGOTIABLE INSTRUMENTS ACT WHICH
HAS BEEN ADOPTED IN MARYLAND AND IN DELAWARE.  ANNO.  CODE OF MARYLAND
1939, ART. 13, SEC. 76; REVISED CODE OF DELAWARE (1935), C. 78, ART. 4,
SEC. 57.  THIS ACT HAS ADOPTED THE RULE ANNOUNCED IN BURTON V. UNITED
STATES, 196 U.S. 283, 297; CITY OF DOUGLAS V. FEDERAL RESERVE BANK, 271
U.S. 489, 492; DAKIN V. BAYLY, 290 U.S. 143, 146. 

FN6  MCNEAR V. UNITED STATES, 60 F.2D 861; DYHRE V. HUDSPETH, 106
F.2D 286; STAPP V. UNITED STATES, 120 F.2D 898; UNITED STATES V. MCKAY,
45 F.SUPP.  1001. 

FN7  SEE ALSO SHEA V. UNITED STATES, 251 F. 440; SPEAR V. UNITED
STATES, 228 F. 485; SAVAGE V. UNITED STATES, 270 F. 14; STEWART V.
UNITED STATES, 300 F. 769; TINCHER V. UNITED STATES, 11 F.2D 18.    FN8
SEE E.G. UNITED STATES V. LOWE, 115 F.2D 596; UNITED STATES V. RIEDEL,
126 F.2D 81; DUNHAM V. UNITED STATES, 125 F.2D 895. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK, MR. JUSTICE JACKSON
AND MR. JUSTICE RUTLEDGE CONCUR, DISSENTING. 

I HARDLY THINK WE WOULD SET THIS CONVICTION ASIDE IF THE COLLECTING
BANK INSTEAD OF CASHING THE CHECKS TOOK THEM FOR COLLECTION ONLY AND
REFUSED TO PAY THE DEFENDANTS UNTIL THE CHECKS HAD BEEN HONORED BY THE
DRAWEE.  IT IS PLAIN THAT THE MAILS WOULD THEN BE USED TO OBTAIN THE
FRUITS OF THE FRAUD.  AND I DO NOT SEE WHY THE FRAUD FAILS TO BECOME A
FEDERAL OFFENSE MERELY BECAUSE THE COLLECTING BANK CASHES THE CHECKS. 
THAT WOULD SEEM TO BE IRRELEVANT UNDER THESE CIRCUMSTANCES.  AS POINTED
OUT IN DECKER V. UNITED STATES, 140 F.2D 378, 379, THE OBJECT OF THE
SCHEME WAS TO DEFRAUD TRIUMPH; AND THE USE OF THE MAILS WAS AN
ESSENTIAL STEP TO THAT END.  IT IS TRUE THAT THE COLLECTING BANK WAS A
HOLDER IN DUE COURSE AGAINST WHOM THE DRAWER HAD NO DEFENSE.  BUT THAT
DOES NOT MEAN THAT THE FRAUDULENT SCHEME HAD REACHED FRUITION AT THAT
POINT OF TIME.  YET IF LEGAL TECHNICALITIES RATHER THAN PRACTICAL
CONSIDERATIONS ARE TO DECIDE THAT QUESTION IT SHOULD BE NOTED THAT THE
DEFENDANTS WERE PAYEE-INDORSERS OF THE CHECKS.  THEY HAD RECEIVED ONLY
A CONDITIONAL CREDIT, OR PAYMENT AS THE CASE MAY BE.  IT TOOK PAYMENT
BY THE DRAWEE TO DISCHARGE THEM FROM THEIR LIABILITY AS INDORSERS.  NOT
UNTIL THEN WOULD THE DEFENDANTS RECEIVE IRREVOCABLY THE PROCEEDS OF
THEIR FRAUD. 

MOREOVER, THIS WAS NOT THE LAST STEP IN THE FRAUDULENT SCHEME.  IT
WAS A CONTINUING VENTURE.  SMOOTH CLEARANCES OF THE CHECKS WERE
ESSENTIAL LEST THESE INTERMEDIATE DIVIDENDS BE INTERRUPTED AND THE
CONSPIRATORS BE CALLED UPON TO DISGORGE.  DIFFERENT CONSIDERATIONS
WOULD BE APPLICABLE IF WE WERE DEALING WITH INCIDENTAL MAILINGS.  BUT
WE ARE NOT.  TO OBTAIN MONEY WAS THE SOLE OBJECT OF THIS FRAUD.  THE
USE OF THE MAILS WAS CRUCIAL TO THE TOTAL SUCCESS OF THE FRAUDULENT
PROJECT.  WE ARE NOT JUSTIFIED IN CHOPPING UP THE VITAL BANKING PHASE
OF THE SCHEME INTO SEGMENTS AND ISOLATING ONE PART FROM THE OTHERS. 
THAT WOULD BE WARRANTED IF THE SCHEME WERE TO DEFRAUD THE COLLECTING
BANK.  BUT IT IS PLAIN THAT THESE PLANS HAD A WIDER REACH AND THAT BUT
FOR THE USE OF THE MAILS THEY WOULD NOT HAVE BEEN FINALLY CONSUMMATED. 

..END :










CLINE V. KAPLAN, 323 U.S. 97 


NO. 307.  SUBMITTED NOVEMBER 13, 1944.  - DECIDED DECEMBER 4, 1944.  -
142 F.2D 301, AFFIRMED. 


1.  WHERE A BONA FIDE CLAIM ADVERSE TO THAT OF THE BANKRUPT ESTATE IS
ASSERTED AS TO PROPERTY WHICH IS NOT IN THE ACTUAL OR CONSTRUCTIVE
POSSESSION OF THE BANKRUPTCY COURT, THE CLAIMANT HAS THE RIGHT TO HAVE
THE MERITS OF HIS CLAIM ADJUDICATED IN A PLENARY SUIT.  P. 98. 

2.  THE BANKRUPTCY COURT HAS THE POWER AND THE DUTY TO EXAMINE THE
ADVERSE CLAIM TO ASCERTAIN WHETHER IT IS INGENUOUS AND SUBSTANTIAL.  P.
99. 

3.  WHEN IT IS ESTABLISHED THAT THE ADVERSE CLAIM IS SUBSTANTIAL, THE
BANKRUPTCY COURT CAN NOT RETAIN JURISDICTION UNLESS THE CLAIMANT
CONSENTS TO ITS ADJUDICATION BY THAT COURT.  P. 99. 

4.  CONSENT TO ADJUDICATION BY THE BANKRUPTCY COURT OF AN ADVERSE
CLAIM IS LACKING WHERE THE CLAIMANT HAS THROUGHOUT RESISTED A PETITION
FOR A TURNOVER ORDER AND HAS MADE FORMAL OBJECTION TO THE EXERCISE OF
SUMMARY JURISDICTION BEFORE THE ENTRY OF A FINAL ORDER.  LOUISVILLE
TRUST CO. V. COMINGOR, 184 U.S. 18.  P. 99. 

5.  UPON THE FACTS OF THIS CASE, HELD THAT A CLAIMANT ADVERSE TO THE
BANKRUPT ESTATE, AS TO PROPERTY WHICH WAS NOT IN THE ACTUAL OR
CONSTRUCTIVE POSSESSION OF THE BANKRUPTCY COURT, DID NOT CONSENT TO
ADJUDICATION OF THE CLAIM BY THE BANKRUPTCY COURT.  P. 100. 

CLINE, TRUSTEE IN BANKRUPTCY OF GOLD MEDAL LAUNDRIES, INC. V. KAPLAN
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 691, TO REVIEW A JUDGMENT WHICH, REVERSING
ORDERS OF THE BANKRUPTCY COURT, SUSTAINED THE REFEREE'S DISMISSAL, FOR
LACK OF JURISDICTION, OF A PETITION FOR A TURNOVER ORDER. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE POWERS OF A BANKRUPTCY COURT WHEN A CLAIM
ADVERSE TO THE BANKRUPT ESTATE IS ASSERTED. 

AN INVOLUNTARY PETITION FOR ADJUDICATION IN BANKRUPTCY WAS FILED
AGAINST GOLD MEDAL LAUNDRIES ON SEPTEMBER 22, 1941.  A MONTH LATER THE
ADJUDICATION WAS MADE.  ON DECEMBER 22, PETITIONER, THE TRUSTEE IN
BANKRUPTCY, FILED WITH THE REFEREE A PETITION FOR AN ORDER DIRECTING
THE RESPONDENTS TO TURN OVER CERTAIN ASSETS, ALLEGEDLY BELONGING TO THE
BANKRUPT, WHICH HAD COME INTO POSSESSION OF THE RESPONDENTS SOME
FIFTEEN MONTHS PRIOR TO THE INSTITUTION OF THE BANKRUPTCY PROCEEDINGS. 
RESPONDENTS' ANSWER CLAIMED OWNERSHIP IN THEMSELVES AND PRAYED
DISMISSAL OF THE PETITION.  EXTENSIVE HEARINGS WERE HELD TO DETERMINE
WHETHER THE PROPERTY WAS IN THE CONSTRUCTIVE POSSESSION OF THE
BANKRUPT.  PRIOR TO THE CLOSE OF THE HEARINGS RESPONDENTS ORALLY MOVED
THAT THE PETITION BE DISMISSED FOR WANT OF SUMMARY JURISDICTION AND A
FORMAL MOTION TO THIS EFFECT WAS FILED ON MAY 19, 1942.  ON JUNE 24,
1942, THE REFEREE GRANTED THIS MOTION.  THE DISTRICT COURT REVERSED,
WHEREUPON THE REFEREE DENIED A TURNOVER ORDER ON THE MERITS AND THE
DISTRICT COURT AGAIN REVERSED.  APPEALS FROM BOTH DECISIONS OF THE
DISTRICT COURT WERE TAKEN TO THE CIRCUIT COURT OF APPEALS FOR THE
SEVENTH CIRCUIT.  HAVING FOUND THAT THE OBJECTION TO THE SUMMARY
JURISDICTION HAD BEEN TIMELY AND HAD NOT BEEN WAIVED, THAT COURT
SUSTAINED THE REFEREE'S DISMISSAL FOR LACK OF JURISDICTION.  142 F.2D
301.  CONFLICTING VIEWS HAVING BEEN EXPRESSED IN DIFFERENT CIRCUITS ON
MATTERS AFFECTING BANKRUPTCY ADMINISTRATION WHICH OUGHT NOT TO BE LEFT
IN DOUBT, WE GRANTED CERTIORARI. 

A BANKRUPTCY COURT HAS THE POWER TO ADJUDICATE SUMMARILY RIGHTS AND
CLAIMS TO PROPERTY WHICH IS IN THE ACTUAL OR CONSTRUCTIVE POSSESSION OF
THE COURT.  THOMPSON V. MAGNOLIA CO., 309 U.S. 478, 481.  IF THE
PROPERTY IS NOT IN THE COURT'S POSSESSION AND A THIRD PERSON ASSERTS A
BONA FIDE CLAIM ADVERSE TO THE RECEIVER OR TRUSTEE IN BANKRUPTCY, HE
HAS THE RIGHT TO HAVE THE MERITS OF HIS CLAIM ADJUDICATED "IN SUITS OF
THE ORDINARY CHARACTER, WITH THE RIGHTS AND REMEDIES INCIDENT
THERETO."  GALBRAITH V. VALLELY, 256 U.S. 46, 50; TAUBEL-SCOTT
KITZMILLER CO. V. FOX, 264 U.S. 426.  BUT THE MERE ASSERTION OF AN
ADVERSE CLAIM DOES NOT OUST A COURT OF BANKRUPTCY OF ITS JURISDICTION. 
HARRISON V. CHAMBERLIN, 271 U.S. 191, 194.  IT HAS BOTH THE POWER AND
THE DUTY TO EXAMINE A CLAIM ADVERSE TO THE BANKRUPT ESTATE TO THE
EXTENT OF ASCERTAINING WHETHER THE CLAIM IS INGENUOUS AND SUBSTANTIAL. 
LOUISVILLE TRUST CO. V. COMINGOR, 184 U.S. 18, 25-26.  ONCE IT IS
ESTABLISHED THAT THE CLAIM IS NOT COLORABLE NOR FRIVOLOUS, THE CLAIMANT
HAS THE RIGHT TO HAVE THE MERITS OF HIS CLAIM PASSED ON IN A PLENARY
SUIT AND NOT SUMMARILY.  OF SUCH A CLAIM THE BANKRUPTCY COURT CANNOT
RETAIN FURTHER JURISDICTION UNLESS THE CLAIMANT CONSENTS TO ITS
ADJUDICATION IN THE BANKRUPTCY COURT.  MACDONALD V. PLYMOUTH COUNTY
TRUST CO., 286 U.S. 263. 

CONSENT TO PROCEED SUMMARILY MAY BE FORMALLY EXPRESSED, OR THE RIGHT
TO LITIGATE THE DISPUTED CLAIM BY THE ORDINARY PROCEDURE IN A PLENARY
SUIT, LIKE THE RIGHT TO A JURY TRIAL, MAY BE WAIVED BY FAILURE TO MAKE
TIMELY OBJECTION.  MACDONALD V. PLYMOUTH COUNTY TRUST CO., SUPRA AT 266
267.  CONSENT IS WANTING WHERE THE CLAIMANT HAS THROUGHOUT RESISTED THE
PETITION FOR A TURNOVER ORDER AND WHERE HE HAS MADE FORMAL PROTEST
AGAINST THE EXERCISE OF SUMMARY JURISDICTION BY THE BANKRUPTCY COURT
BEFORE THAT COURT HAS MADE A FINAL ORDER.  LOUISVILLE TRUST CO. V.
COMINGOR, SUPRA.  IN THE COMINGOR CASE ALTHOUGH THE CLAIMANT
"PARTICIPATED IN THE PROCEEDINGS BEFORE THE REFEREE, HE HAD PLEADED HIS
CLAIMS IN THE OUTSET, AND HE MADE HIS FORMAL PROTEST TO THE EXERCISE OF
JURISDICTION BEFORE THE FINAL ORDER WAS ENTERED."  ID. AT 26.  THIS, IT
WAS HELD, NEGATIVED CONSENT AND THEREBY THE RIGHT TO PROCEED
SUMMARILY. 

THUS, WHAT A BANKRUPTCY COURT MAY DO AND WHAT IT MAY NOT DO WHEN A
PETITION FOR A TURNOVER ORDER IS RESISTED BY AN ADVERSE CLAIMANT IS
CLEAR ENOUGH.  BUT WHETHER OR NOT THERE WAS THE NECESSARY CONSENT UPON
WHICH ITS POWER TO PROCEED MAY DEPEND IS, AS IS SO OFTEN TRUE IN
DETERMINING CONSENT, A QUESTION DEPENDING ON THE FACTS OF THE
PARTICULAR CASE.  AND SO WE TURN TO THE FACTS OF THIS CASE. 

WHEN THE TRUSTEE FILED HIS PETITION FOR A TURNOVER ORDER, RESPONDENTS
DENIED ANY BASIS FOR SUCH AN ORDER AND ASSERTED THEIR ADVERSE CLAIM. 
THERE IS NO DISPUTE ABOUT THAT.  BEFORE THE MATTER WENT TO THE REFEREE
FOR DETERMINATION, RESPONDENTS EXPLICITLY RAISED OBJECTION TO THE
DISPOSITION OF THEIR CLAIM BY SUMMARY PROCEDURE.  THEY LATER AMPLIFIED
THAT OBJECTION BY A WRITTEN MOTION AND SUPPORTED IT BY EXTENDED
ARGUMENT.  THE ESTABLISHED PRACTICE BASED ON THE CRITERIA OF THE
COMINGOR CASE WAS THUS ENTIRELY SATISFIED.  WE REJECT THE SUGGESTION
THAT RESPONDENTS CONFERRED CONSENT BY PARTICIPATING IN THE HEARING ON
THE MERITS.  SEE IN RE WEST PRODUCE CORP., 118 F.2D 274, 277.  IN VIEW
OF THE REFEREE'S OPINION THAT THE HEARINGS WERE HELD TO DETERMINE
WHETHER THE BANKRUPT HAD CONSTRUCTIVE POSSESSION OF THE PROPERTY, THE
PETITIONER CAN HARDLY CLAIM THE BENEFIT OF THE RESTRICTED RULE WHICH HE
INVOKES.  IN ANY EVENT, SUCH A VIEW IS CONTRARY TO THAT WHICH WAS
DECIDED IN LOUISVILLE TRUST CO. V. COMINGOR, SUPRA, WHICH HELD, AS WE
HAVE NOTED, THAT CONSENT IS NOT GIVEN EVEN THOUGH CLAIMANT
"PARTICIPATED IN THE PROCEEDINGS" PROVIDED FORMAL OBJECTION TO SUMMARY
JURISDICTION IS MADE BEFORE ENTRY OF THE FINAL ORDER.  AND THE COMINGOR
CASE "HAS BEEN REPEATEDLY CITED AS DETERMINATIVE OF THE LAW AND
PRACTICE IN SIMILAR CASES."  GALBRAITH V. VALLELY, 256 U.S. 46, 49. 

WE FIND NO MERIT IN OTHER QUESTIONS RAISED BY THE PETITIONER.  BUT
THEY DO NOT CALL FOR ELABORATION.  AFFIRMED. 
..END :






SPECTOR MOTOR CO. V. MCLAUGHLIN, 323 U.S. 101 


NO. 62.  ARGUED NOVEMBER 9, 1944.  - DECIDED DECEMBER 4, 1944.  - 139
F.2D 809, VACATED. 


SINCE THE ANSWERS TO THE QUESTIONS OF LOCAL LAW INVOLVED IN THIS CASE
MAY RENDER UNNECESSARY, OR MAY AFFECT, THE DECISION OF THE QUESTIONS
ARISING UNDER THE FEDERAL CONSTITUTION, AND SINCE THE LOCAL QUESTIONS
HAVE NOT BEEN PASSED UPON BY THE STATE COURTS THOUGH AN APPROPRIATE
PROCEEDING IS AVAILABLE, THE CAUSE IS REMANDED TO THE DISTRICT COURT
WITH DIRECTIONS TO RETAIN THE BILL PENDING THE DETERMINATION OF
PROCEEDINGS TO BE BROUGHT WITH REASONABLE PROMPTITUDE IN THE STATE
COURT.  P. 105. 

SPECTOR MOTOR SERVICE, INC. V. MCLAUGHLIN, TAX COMMISSIONER (WALSH,
SUBSTITUTED DEFENDANT). 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 322 U.S. 720, TO REVIEW A JUDGMENT WHICH, ON APPEAL FROM
A DECISION OF THE DISTRICT COURT HOLDING A STATE TAX INAPPLICABLE TO
THE PETITIONER, 47 F.SUPP.  671, HELD THE TAX APPLICABLE AND VALID. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT IN A UNITED STATES DISTRICT COURT TO ENJOIN
THE ENFORCEMENT OF A STATE TAX AND FOR A DECLARATORY JUDGMENT. 

THE CONNECTICUT CORPORATION BUSINESS TAX ACT OF 1935, AS AMENDED,
IMPOSED ON EVERY CORPORATION, NOT OTHERWISE SPECIALLY TAXED, CARRYING
ON OR HAVING THE RIGHT TO CARRY ON BUSINESS WITHIN THE STATE "A TAX OR
EXCISE UPON ITS FRANCHISE FOR THE PRIVILEGE OF CARRYING ON OR DOING
BUSINESS WITHIN THE STATE  ..."  CONN. GEN. STAT. CUM. SUPP. 1935, SEC.
418C, AS AMENDED BY CONN. GEN. STAT. SUPP. 1939, SEC. 354E. 
PETITIONER, A MISSOURI CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS
IN ILLINOIS, IS ENGAGED EXCLUSIVELY IN THE INTERSTATE TRUCKING
BUSINESS.  IT IS NEITHER AUTHORIZED BY CONNECTICUT TO DO INTRASTATE
TRUCKING NOR IN FACT DOES IT ENGAGE IN IT.  IT MAINTAINS TWO LEASED
TERMINALS IN CONNECTICUT SOLELY FOR THE PURPOSE OF CARRYING ON ITS
INTERSTATE BUSINESS.  AT THE REQUEST OF ITS LESSOR, IT HAS FILED WITH
THE SECRETARY OF STATE IN CONNECTICUT A CERTIFICATE OF ITS
INCORPORATION IN MISSOURI, HAS DESIGNATED AN AGENT IN CONNECTICUT FOR
SERVICE OF PROCESS, AND HAS PAID THE STATUTORY FEE.  ON THIS STATE OF
FACTS THE STATE TAX COMMISSIONER DETERMINED THAT PETITIONER WAS SUBJECT
TO THE ACT OF 1935, AS AMENDED, AND ASSESSED THE TAX AGAINST SPECTOR
FOR THE YEARS 1937 TO 1940.  WHEREUPON PETITIONER BROUGHT THIS SUIT IN
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT TO
FREE ITSELF FROM LIABILITY FOR THE TAX.  ALLEGING APPROPRIATE GROUNDS
FOR EQUITABLE RELIEF, PETITIONER CLAIMS THAT THE "TAX OR EXCISE" LEVIED
BY THE ACT DOES NOT APPLY TO IT; AND IN THE ALTERNATIVE THAT, IF IT
SHOULD BE DEEMED WITHIN THE SCOPE OF THE STATUTE, THE TAX OFFENDS
PROVISIONS OF THE CONNECTICUT CONSTITUTION AS WELL AS THE COMMERCE AND
DUE PROCESS CLAUSES OF THE UNITED STATES CONSTITUTION. 

THE DISTRICT COURT CONSTRUED THE STATUTE TO BE "A TAX UPON THE
EXERCISE OF A FRANCHISE TO CARRY ON INTRASTATE COMMERCE IN THE STATE"
AND THEREFORE NOT APPLICABLE TO PETITIONER.  47 F.SUPP.  671, 675.  ON
APPEAL THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT CONSTRUED
THE STATUTE TO REACH ALL CORPORATIONS HAVING ACTIVITY IN CONNECTICUT,
WHETHER DOING OR AUTHORIZED TO DO INTRASTATE BUSINESS OR, LIKE THE
PETITIONER, ENGAGED EXCLUSIVELY IN INTERSTATE COMMERCE.  IT FURTHER
DECIDED ALL CONTENTIONS UNDER THE CONNECTICUT CONSTITUTION AGAINST THE
PETITIONER.  AND SO, THE COURT BELOW FOUND ITSELF COMPELLED "TO FACE
DIRECTLY THE MAIN ISSUE WHETHER THE TAX IS IN FACT AN UNCONSTITUTIONAL
BURDEN ON INTERSTATE COMMERCE."  139 F.2D 809, 813.  THE DISSENTING
JUDGE THUS PHRASED THE ISSUE:  "WE HAVE BEFORE US IN THE BAREST
POSSIBLE FORM THE EFFORT OF A STATE TO LEVY AN EXCISE DIRECTLY UPON THE
PRIVILEGE OF CARRYING ON AN ACTIVITY WHICH IS NEITHER DERIVED FROM THE
STATE, NOR WITHIN ITS POWER TO FORBID."  ID. AT 822.  IT WAS CONCEDED
BELOW THAT IF THE CONNECTICUT TAX WAS CONSTRUED TO COVER PETITIONER IT
WOULD RUN AFOUL THE COMMERCE CLAUSE, WERE THIS COURT TO ADHERE TO WHAT
JUDGE LEARNED HAND CALLED "AN UNBROKEN LINE OF DECISIONS."  ON THE
BASIS OF WHAT IT DEEMED FORESHADOWING "TRENDS," THE MAJORITY VENTURED
THE PROPHECY THAT THIS COURT WOULD CHANGE ITS COURSE, AND ACCORDINGLY
SUSTAINED THE TAX.  IN VIEW OF THE FAR-REACHING IMPORT OF SUCH A
DISPOSITION BY THE CIRCUIT COURT OF APPEALS WE BROUGHT THE CASE HERE. 
322 U.S. 720. 

ONCE DOUBTS PURELY LOCAL TO THE CONSTITUTION AND LAWS OF CONNECTICUT
ARE RESOLVED AGAINST THE PETITIONER THERE ARE AT STAKE IN THIS CASE
QUESTIONS OF MOMENT TOUCHING THE TAXING POWERS OF THE STATES AND THEIR
RELATION TO THE OVERRIDING NATIONAL INTERESTS EMBODIED IN THE COMMERCE
CLAUSE.  THIS IS SO WHETHER THE ISSUE BE AS BROAD AND AS BARE AS THE
DISTRICT COURT AND JUDGE LEARNED HAND FORMULATED IT, OR WHETHER THE
CONNECTICUT STATUTE CARRIES A MORE RESTRICTED MEANING.  IF CONNECTICUT
IN FACT SOUGHT TO TAX THE RIGHT TO ENGAGE IN INTERSTATE COMMERCE, A
LONG COURSE OF CONSTITUTIONAL HISTORY AND "AN UNBROKEN LINE OF
DECISIONS" WOULD INDEED BE BROUGHT INTO QUESTION.  BUT EVEN IF
CONNECTICUT SEEKS MERELY TO LEVY A TAX ON THE NET INCOME OF THIS
INTERSTATE TRUCKING BUSINESS FOR ACTIVITIES ATTRIBUTED TO CONNECTICUT,
QUESTIONS UNDER THE COMMERCE CLAUSE STILL REMAIN IF ONLY BECAUSE OF
WHAT THE COURT BELOW CALLED "INGENIOUS PROVISIONS AS TO ALLOCATION OF
NET INCOME IN THE CASE OF BUSINESS CARRIED ON PARTLY WITHOUT THE
STATE."  139 F.2D 809, 812. 

WE WOULD NOT BE CALLED UPON TO DECIDE ANY OF THESE QUESTIONS OF
CONSTITUTIONALITY, WITH THEIR VARYING DEGREES OF DIFFICULTY, IF, AS THE
DISTRICT COURT HELD, THE STATUTE DOES NOT AT ALL APPLY TO ONE, LIKE
PETITIONER, NOT AUTHORIZED TO DO INTRASTATE BUSINESS.  NOR DO THEY
EMERGE UNTIL ALL OTHER LOCAL CONNECTICUT ISSUES ARE DECIDED AGAINST THE
PETITIONER.  BUT EVEN IF THE STATUTE HITS ASPECTS OF AN EXCLUSIVELY
INTERSTATE BUSINESS, IT IS FOR CONNECTICUT TO DECIDE FROM WHAT ASPECT
OF INTERSTATE BUSINESS SHE SEEKS AN EXACTION.  IT IS FOR HER TO SAY
WHAT IS THE SUBJECT MATTER WHICH SHE HAS SOUGHT TO TAX AND WHAT IS THE
CALCULUS OF THE TAX SHE SEEKS.  EVERY ONE OF THESE QUESTIONS MUST BE
ANSWERED BEFORE WE REACH THE CONSTITUTIONAL ISSUES WHICH DIVIDED THE
COURT BELOW. 

ANSWERS TO ALL THESE QUESTIONS MUST PRECEDE CONSIDERATION OF THE
COMMERCE CLAUSE.  TO NONE HAVE WE AN AUTHORITATIVE ANSWER.  NOR CAN WE
GIVE ONE.  ONLY THE SUPREME COURT OF ERRORS OF CONNECTICUT CAN GIVE
SUCH AN ANSWER.  BUT THIS TAX HAS NOT YET BEEN CONSIDERED OR CONSTRUED
BY THE CONNECTICUT COURTS.  WE HAVE NO AUTHORITATIVE PRONOUNCEMENTS TO
GUIDE US AS TO ITS NATURE AND APPLICATION.  THAT THE ANSWERS ARE NOT
OBVIOUS IS EVIDENCED BY THE DIFFERENT CONCLUSIONS AS TO THE SCOPE OF
THE STATUTE REACHED BY THE TWO LOWER COURTS.  THE CONNECTICUT SUPREME
COURT MAY DISAGREE WITH THE DISTRICT COURT AND AGREE WITH THE CIRCUIT
COURT OF APPEALS AS TO THE APPLICABILITY OF THE STATUTE.  BUT THIS IS
AN ASSUMPTION AND AT BEST "A FORECAST RATHER THAN A DETERMINATION." 
RAILROAD COMMISSION V. PULLMAN CO., 312 U.S. 496, 499.  EQUALLY ARE WE
WITHOUT POWER TO PASS DEFINITIVELY ON THE OTHER CLAIMS URGED UNDER
ARTICLES I AND II OF THE CONNECTICUT CONSTITUTION.  FN1  IF ANY SHOULD
PREVAIL, OUR CONSTITUTIONAL ISSUES WOULD EITHER FALL OR, IN ANY EVENT,
MAY BE FORMULATED IN AN AUTHORITATIVE WAY VERY DIFFERENT FROM ANY
SPECULATIVE CONSTRUCTION OF HOW THE CONNECTICUT COURTS WOULD VIEW THIS
LAW AND ITS APPLICATION.  WATSON V. BUCK, 313 U.S. 387, 401-402. 

IF THERE IS ONE DOCTRINE MORE DEEPLY ROOTED THAN ANY OTHER IN THE
PROCESS OF CONSTITUTIONAL ADJUDICATION, IT IS THAT WE OUGHT NOT TO PASS
ON QUESTIONS OF CONSTITUTIONALITY - HERE THE DISTRIBUTION OF THE TAXING
POWER AS BETWEEN THE STATE AND THE NATION - UNLESS SUCH ADJUDICATION IS
UNAVOIDABLE.  AND SO, AS QUESTIONS OF FEDERAL CONSTITUTIONAL POWER HAVE
BECOME MORE AND MORE INTERTWINED WITH PRELIMINARY DOUBTS ABOUT LOCAL
LAW, WE HAVE INSISTED THAT FEDERAL COURTS DO NOT DECIDE QUESTIONS OF
CONSTITUTIONALITY ON THE BASIS OF PRELIMINARY GUESSES REGARDING LOCAL
LAW.  RAILROAD COMMISSION V. PULLMAN CO., SUPRA; CHICAGO V. FIELDCREST
DAIRIES, 316 U.S. 168; IN RE CENTRAL R. CO. OF NEW JERSEY, 136 F.2D
633.  SEE ALSO BURFORD V. SUN OIL CO., 319 U.S. 315; MEREDITH V. WINTER
HAVEN, 320 U.S. 228, 235; GREEN V. PHILLIPS PETROLEUM CO., 119 F.2D
466; FINDLEY V. ODLAND, 127 F.2D 948; UNITED STATES V. 150.29 ACRES OF
LAND, 135 F.2D 878.  AVOIDANCE OF SUCH GUESSWORK, BY HOLDING THE
LITIGATION IN THE FEDERAL COURTS UNTIL DEFINITE DETERMINATIONS ON LOCAL
LAW ARE MADE BY THE STATE COURTS, MERELY HEEDS THIS TIME-HONORED CANON
OF CONSTITUTIONAL ADJUDICATION. 

WE THINK THIS PROCEDURE SHOULD BE FOLLOWED IN THIS CASE.  THE
DISTRICT COURT HAD JURISDICTION TO ENTERTAIN THIS BILL AND TO GIVE
WHATEVER RELIEF IS APPROPRIATE DESPITE THE JOHNSON ACT  FN2  AND GREAT
LAKES DREDGE CO. V. HUFFMAN, 319 U.S. 293, BECAUSE OF THE UNCERTAINTY
SURROUNDING THE ADEQUACY OF THE CONNECTICUT REMEDY.  SEE WATERBURY
SAVINGS BANK V. LAWLER, 46 CONN. 243; WILCOX V. TOWN OF MADISON, 106
CONN. 223, 137 A. 742.  BUT THERE IS NO DOUBT THAT CONNECTICUT MAKES
AVAILABLE AN ACTION FOR DECLARATORY JUDGMENT FOR THE DETERMINATION OF
THOSE ISSUES OF CONNECTICUT LAW INVOLVED HERE.  CHARTER OAK COUNCIL,
INC. V. TOWN OF NEW HARTFORD, 121 CONN. 466, 185 A. 575; CONZELMAN V.
CITY OF BRISTOL, 122 CONN. 218, 188 A. 659; WALSH V. CITY OF
BRIDGEPORT, 2 CONN. SUPP. 88. 

WE THEREFORE VACATE THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS AND
REMAND THE CAUSE TO THE DISTRICT COURT WITH DIRECTIONS TO RETAIN THE
BILL PENDING THE DETERMINATION OF PROCEEDINGS TO BE BROUGHT WITH
REASONABLE PROMPTITUDE IN THE STATE COURT IN CONFORMITY WITH THIS
OPINION. 

FN1  FOR INSTANCE, PETITIONER CLAIMS THAT NO STANDARD FOR ASSESSMENT
IS SET UP IN THE STATUTE SO THAT THE EXECUTIVE OFFICER IS ACTING IN A
LEGISLATIVE CAPACITY IN VIOLATION OF ARTICLE II; THAT FAILURE TO ALLOW
A DEDUCTION FOR RENT VIOLATES SECS. 1 AND 12 OF ARTICLE I. IN ADDITION
HE CLAIMS THAT THE TAX WAS ASSESSED UNDER THE WRONG SUBSECTION OF THE
STATUTE - SEC. 420CB) INSTEAD OF SEC. 420CA). 

FN2  ACT OF AUGUST 21, 1937, 50 STAT. 738, 28 U.S.C. SEC. 41(1). 
"...  NO DISTRICT COURT SHALL HAVE JURISDICTION OF ANY SUIT TO ENJOIN,
SUSPEND, OR RESTRAIN THE ASSESSMENT, LEVY, OR COLLECTION OF ANY TAX
IMPOSED BY OR PURSUANT TO THE LAWS OF ANY STATE WHERE A PLAIN, SPEEDY,
AND EFFICIENT REMEDY MAY BE HAD AT LAW OR IN EQUITY IN THE COURTS OF
SUCH STATE." 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE BLACK DISSENTS. 
..END :
























U.S. V. STANDARD RICE CO., 323 U.S. 106 


NO. 72.  ARGUED NOVEMBER 16, 1944.  - DECIDED DECEMBER 4, 1944.  - 101
CT. CLS. 85, AFFIRMED. 


1.  A CONTRACT FOR THE SALE OF MATERIAL TO THE UNITED STATES CONTAINED
THE FOLLOWING PROVISION: "PRICES BID HEREIN INCLUDE ANY FEDERAL TAX
HERETOFORE IMPOSED BY THE CONGRESS WHICH IS APPLICABLE TO THE MATERIAL
ON THIS BID.  ANY SALES TAX, DUTIES, IMPOSTS, REVENUES, EXCISE OR OTHER
TAXES WHICH MAY HEREAFTER (THE DATE SET FOR THE OPENING OF THIS BID) BE
IMPOSED BY THE CONGRESS AND MADE APPLICABLE TO THE MATERIAL ON THIS BID
WELL BE CHARGED TO THE GOVERNMENT AND ENTERED ON INVOICES AS A SEPARATE
ITEM."  HELD THAT THE UNITED STATES WAS NOT ENTITLED TO RECOVER FROM
THE CONTRACTOR PROCESSING TAXES IMPOSED BY THE AGRICULTURAL ADJUSTMENT
ACT, WHICH TAXES WERE "APPLICABLE" TO THE MATERIAL WITHIN THE MEANING
OF THE CONTRACT, BUT WHICH, BECAUSE SUBSEQUENTLY ADJUDGED INVALID, WERE
NEVER COLLECTED FROM THE CONTRACTOR.  UNITED STATES V. KANSAS FLOUR
MILLS CORP., 314 U.S. 212, DISTINGUISHED.  P. 110. 

2.  GENERALLY THE UNITED STATES AS A CONTRACTOR IS TO BE TREATED AS
OTHER CONTRACTORS, AND A CONTRACT WHICH IT DRAWS IS NOT TO BE
JUDICIALLY REVISED BECAUSE IT MAY HAVE BEEN IMPROVIDENT.  P. 111. 

UNITED STATES V. STANDARD RICE CO., INC. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 322 U.S. 725, TO REVIEW A JUDGMENT DENYING AN OFFSET TO A
CLAIM AGAINST THE UNITED STATES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT IN THE COURT OF CLAIMS TO RECOVER AN
OVERPAYMENT OF INCOME TAXES MADE BY RESPONDENT.  THE UNITED STATES
CONCEDED THAT THE AMOUNT CLAIMED WAS OWED.  BUT THE COMPTROLLER
GENERAL, PURSUANT TO HIS POWER UNDER SEC. 305 OF THE BUDGET AND
ACCOUNTING ACT OF 1921(42 STAT. 20, 31 U.S.C. SEC. 71) SETTLED AND
ADJUSTED THE CLAIM BY OFFSETTING AGAINST IT AN AMOUNT WHICH HE
CONCLUDED RESPONDENT OWED THE UNITED STATES UNDER A CONTRACT.  SINCE
THE LATTER CLAIM EQUALLED THE OVERASSESSMENT ON THE INCOME TAXES, THE
COMPTROLLER GENERAL REFUSED TO AUTHORIZE A REFUND TO RESPONDENT.  THIS
SUIT FOLLOWED.  THE COURT OF CLAIMS DENIED THE OFFSET AND ENTERED
JUDGMENT FOR RESPONDENT IN THE AMOUNT CLAIMED WITH INTEREST.  101 CT.
CLS. 85, 53 F.SUPP.  717.  THE CASE IS HERE ON A PETITION FOR A WRIT OF
CERTIORARI  FN1  WHICH WE GRANTED BECAUSE OF AN ASSERTED CONFLICT OF
THE DECISION BELOW WITH UNITED STATES V. AMERICAN PACKING & PROVISION
CO., 122 F.2D 445 AND UNITED STATES V. KANSAS FLOUR MILLS CORP., 314
U.S. 212. 

THE CONTRACT UNDER WHICH THE CLAIM AGAINST RESPONDENT WAS ASSERTED
WAS MADE IN NOVEMBER, 1935.  RESPONDENT AGREED TO SUPPLY RICE TO THE
NAVY DEPARTMENT AT THE BID PRICES SPECIFIED IN THE CONTRACT.  A TYPICAL
PRICE PROVISION LISTED 290,000 POUNDS OF RICE AT A UNIT PRICE (PER
POUND) OF .046[ OR A TOTAL PRICE OF $13,340.  THE CONTRACT CONTAINED
THE FOLLOWING PROVISION: 

"PRICES BID HEREIN INCLUDE ANY FEDERAL TAX HERETOFORE IMPOSED BY
THECONGRESS WHICH IS APPLICABLE TO THE MATERIAL ON THIS BID.  ANY SALES
TAX, DUTIES, IMPOSTS, REVENUES, EXCISE OR OTHER TAXES WHICH MAY
HEREAFTER (THE DATE SET FOR THE OPENING OF THIS BID) BE IMPOSED BY THE
CONGRESS AND MADE APPLICABLE TO THE MATERIAL ON THIS BID WILL BE
CHARGED TO THE GOVERNMENT AND ENTERED ON INVOICES AS A SEPARATE ITEM." 

RESPONDENT MADE THE REQUIRED DELIVERIES TO THE UNITED STATES AND
RECEIVED THE FULL PRICE SPECIFIED IN THE CONTRACT.  RESPONDENT WAS THE
FIRST DOMESTIC PROCESSOR OF THE RICE AND ACCORDINGLY PAID THE
PROCESSING TAXES IMPOSED BY THE AGRICULTURAL ADJUSTMENT ACT (48 STAT.
31, 7 U.S.C. SECS. 609, 611) FROM APRIL 1, 1935, UNTIL SEPTEMBER 20,
1935.  BEFORE PAYING THE PROCESSING TAX ON THE RICE PROCESSED FOR THE
MONTH OF OCTOBER, 1935, RESPONDENT OBTAINED AN INJUNCTION AGAINST ITS
COLLECTION.  THE TAX WAS HELD INVALID IN UNITED STATES V. BUTLER, 297
U.S. 1, DECIDED JANUARY 6, 1936.  CONSEQUENTLY RESPONDENT NEVER PAID
THE PROCESSING TAXES ON THE RICE SUPPLIED TO THE UNITED STATES UNDER
THE NOVEMBER, 1935, CONTRACT.  FN2 

THE TAX WAS A FEDERAL TAX "APPLICABLE" TO THE RICE WITHIN THE MEANING
OF THE CONTRACT.  UNITED STATES V. GLENN L. MARTIN CO., 308 U.S. 62,
65.  ITS AMOUNT WAS KNOWN, AND THE VENDOR WAS RESPONSIBLE BY REGULATION
FOR ITS PAYMENT.  UNITED STATES V. KANSAS FLOUR MILLS CORP., SUPRA, P.
214.  IT IS THEREFORE ARGUABLE THAT THE VENDOR FIXED THE BID PRICE TO
PROVIDE A MARGIN OF PROFIT AFTER PAYMENT OF THOSE TAXES FOR WHICH IT
WAS RESPONSIBLE, THAT THE PRICE WAS DESIGNED TO OFFSET PRO TANTO THE
AMOUNT OF THE TAXES, AND THAT IF THEY WERE NOT PAID, THE PRICE SHOULD
BE REDUCED.  THAT IS THE POSITION TAKEN BY THE UNITED STATES AND IT
RELIES ON THE FOLLOWING STATEMENT IN UNITED STATES V. KANSAS FLOUR
MILLS CORP., SUPRA, PP. 216-217:  "IN THE CONTRACTS IN QUESTION, THE
GOVERNMENT DID NOT BUY FOR RESALE.  UNLESS IT RECEIVED THE TAX IT
SUFFERED A DEFINITE DISADVANTAGE.  ITS PURPOSE, AS SHOWN BY THE
CONTRACTS, WAS TO BALANCE THE TAX ELEMENT IN THE PRICE PAID WITH THE
TAX COLLECTED.  THE GOVERNMENT, WHICH COULD NOT PASS ON THE TAX ON
RESALE, WAS THUS PROTECTED, NOT AGAINST A FALL IN THE MARKET PRICE BUT
AGAINST A LOSS IN ITS TAX REVENUES."  BUT WE WERE THERE ONLY ANSWERING
THE ARGUMENT THAT SINCE THE VENDOR DID NOT UNDERTAKE TO PAY THE TAX,
THE RULE IN PRIVATE CONTRACTS SHOULD BE FOLLOWED AND NO READJUSTMENT OF
THE PRICE MADE WHERE THE TAX WAS NOT PAID.  THE DIFFERENCE BETWEEN THE
CASES WAS THAT IN THE LATTER SITUATION THE VENDEE PRESUMABLY PASSED ON
THE TAX WHILE THE UNITED STATES DID NOT SINCE IT DID NOT BUY FOR
RESALE.  THE VITAL FACT IN UNITED STATES V. KANSAS FLOUR MILLS CORP.
WAS THE PROVISION IN THE CONTRACT FOR AN UP-OR-DOWN REVISION OF THE
PRICE IN  CASE OF A CHANGE IN THE PROCESSING TAX BY CONGRESS.  IT
PROVIDED THAT IF A PROCESSING TAX WAS THEREAFTER "IMPOSED OR CHANGED BY
THE CONGRESS," THE CONTRACT PRICE WAS TO BE "INCREASED OR DECREASED
ACCORDINGLY."  IT WAS HELD THAT THE DECISION IN UNITED STATES V. BUTLER
AND ITS RECOGNITION IN THE REVENUE ACT OF 1936 AMOUNTED TO A DOWNWARD
CHANGE CALLING FOR A DECREASE IN THE CONTRACT PRICE.  314 U.S. P. 217. 
THERE IS NO SUCH PROVISION IN THE PRESENT CONTRACT.  THE CLAUSE THAT
THE BID PRICES INCLUDE "ANY FEDERAL TAX HERETOFORE IMPOSED BY THE
CONGRESS WHICH IS APPLICABLE TO THE MATERIAL" MUST BE READ IN THE
CONTEXT OF THIS PARTICULAR CONTRACT.  WHEN IT IS SO READ, A RESULT
DIFFERENT FROM THAT REACHED IN UNITED STATES V. KANSAS FLOUR MILLS
CORP. IS INDICATED. 

THE PRESENT CONTRACT PROVIDES FOR PAYMENT BY THE UNITED STATES OF
SALES AND OTHER TAXES THEREAFTER IMPOSED BY CONGRESS AND MADE
APPLICABLE TO THE RICE.  BUT WHILE IT MAKES THAT PROVISION FOR UPWARD
READJUSTMENT OF THE PRICE, IT PROVIDES FOR NO DOWNWARD REVISION IN CASE
OF SUBSEQUENT CHANGES IN ANY TAX.  THAT SILENCE GAINS ADDED
SIGNIFICANCE HERE IN VIEW OF THE FACT THAT AT THE TIME THE CONTRACT WAS
MADE THE PAYMENT OF THESE PROCESSING TAXES WAS BEING HOTLY CONTESTED
AND THE LITIGATION RESULTING IN UNITED STATES V. BUTLER, SUPRA, WAS
WELL UNDER WAY.  THE INFERENCE IS STRONG THEREFORE THAT THE PARTIES
INTENDED THE PRICE TO BE FIRM, EXCEPT AS IT MIGHT BE INCREASED THROUGH
THE IMPOSITION OF NEW TAXES.  THE PROVISION FOR THE INCLUSION OF
APPLICABLE TAXES PROVIDES A FORMULA FOR DETERMINING THE PRICE TO BE
BILLED.  SINCE THE TAX IN QUESTION COULD NOT BY THE TERMS OF THE
CONTRACT BE BILLED TO THE UNITED STATES, THERE WAS NO OVERCHARGE.  IF
THE CONTRACTOR LAWFULLY AVOIDS PAYMENT OF A TAX HE REDUCES HIS COST AND
INCREASES HIS PROFIT.  BUT IN ABSENCE OF A PROVISION WHICH AUTHORIZES
IT THE REDUCTION OF COST IS HARDLY THE BASIS OF A REFUND TO THE UNITED
STATES.  AS THE COURT OF CLAIMS POINTS OUT, IT IS HARD TO SEE HOW THE
VENDOR COULD BE REQUIRED TO PAY THE UNITED STATES ANY SAVINGS WHICH IT
MADE AS A RESULT OF REDUCTIONS IN TARIFF DUTIES.  YET THE DIFFERENCE
BETWEEN THEM AND OTHER TAXES UNDER THIS CONTRACT IS NOT APPARENT. 
ALTHOUGH THERE WILL BE EXCEPTIONS, IN GENERAL THE UNITED STATES AS A
CONTRACTOR MUST BE TREATED AS OTHER CONTRACTORS UNDER ANALOGOUS
SITUATIONS.  WHEN PROBLEMS OF THE INTERPRETATION OF ITS CONTRACTS ARISE
THE LAW OF CONTRACTS GOVERNS.  HOLLERBACH V. UNITED STATES, 233 U.S.
165, 171-172; UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S. 289, 298
299.  WE WILL TREAT IT LIKE ANY OTHER CONTRACTOR AND NOT REVISE THE
CONTRACT WHICH IT DRAWS ON THE GROUND THAT A MORE PRUDENT ONE MIGHT
HAVE BEEN MADE.  UNITED STATES V. AMERICAN SURETY CO., 322 U.S. 96. 
AFFIRMED. 

FN1  SEE ACT OF FEBRUARY 13, 1925, SEC. 3(B), 43 STAT. 939, AMENDED
BY THE ACT OF MAY 22, 1939, 53 STAT. 752, 28 U.S.C. SEC. 288(B). 

FN2  RESPONDENT DID, HOWEVER, PAY AN UNJUST ENRICHMENT TAX OF
$72,072.30 ON ACCOUNT OF BEING RELIEVED OF THE PROCESSING TAX.  SEE
TITLE III OF THE REVENUE ACT OF 1936, 49 STAT. 1648, 1734.  IT WAS
COMPUTED AND ASSESSED UPON THE BASIS OF INCLUSION OF UNITS INVOLVED IN
THIS SUIT.  IF THOSE UNITS HAD BEEN EXCLUDED, THE UNJUST ENRICHMENT TAX
WOULD HAVE BEEN REDUCED BY $1,706.59.  IF RESPONDENT IS REQUIRED TO
REDUCE ITS PRICE BY THE AMOUNT OF THE UNPAID PROCESSING TAX, IT IS NOT
SUBJECT TO THE UNJUST ENRICHMENT TAX ON THESE TRANSACTIONS.  SEE UNITED
STATES V. KANSAS FLOUR MILLS CORP., SUPRA, P. 216, NOTE 6.  THE UNITED
STATES CONCEDES THAT IF IT PREVAILS THE RESPONDENT IS ENTITLED TO
RECOVER $1,706.59. 

MR. JUSTICE BLACK DISSENTS. 
..END :
























SMITH V. DAVIS, 323 U.S. 111 


NO. 23.  ARGUED OCTOBER 16, 1944.  - DECIDED DECEMBER 4, 1944.  - 197
GA. 95, 28 S.W.2D 148, AFFIRMED. 


1.  AN OPEN ACCOUNT CLAIM OF A CREDITOR OF THE UNITED STATES,
REPRESENTING A BALANCE CLAIMED TO BE DUE UNDER ARMY CONSTRUCTION
CONTRACTS, HELD NOT A CREDIT INSTRUMENTALITY OF THE UNITED STATES AND
NOT CONSTITUTIONALLY IMMUNE FROM NON-DISCRIMINATORY STATE TAXATION.  P.
113. 

2.  R.S. SEC. 3701, EXEMPTING FROM STATE AND LOCAL TAXATION "ALL
STOCKS, BONDS, TREASURY NOTES, AND OTHER OBLIGATIONS OF THE UNITED
STATES," HELD INAPPLICABLE TO AN OPEN ACCOUNT CLAIM OF A CREDITOR OF
THE UNITED STATES.  P. 116. 

3.  UNDER THE RULE OF EJUSDEM GENERIS, THE WORDS "OTHER OBLIGATIONS"
IN R.S. SEC. 3701 ARE TO BE CONSTRUED AS REFERRING ONLY TO OBLIGATIONS
OR SECURITIES OF THE SAME TYPE AS THOSE SPECIFICALLY ENUMERATED, AND
NOT AS EXTENDING TO NON-INTEREST-BEARING CLAIMS OR OBLIGATIONS WHICH
THE UNITED STATES DOES NOT USE OR NEED FOR CREDIT PURPOSES.  P. 117. 

SMITH ET AL., PARTNERS, V. DAVIS ET AL., AS BOARD OF COUNTY TAX
ASSESSORS OF FULTON COUNTY, ET AL. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

CERTIORARI, 321 U.S. 761, TO REVIEW A JUDGMENT DIRECTING DISMISSAL OF
A SUIT TO ENJOIN THE ASSESSMENT OF A STATE TAX. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE PARTNERS ENGAGED IN THE CONTRACTING AND CONSTRUCTION
BUSINESS.  THEY CLAIM THAT ON JANUARY 1, 1942, THE UNITED STATES OWED
THEM A BALANCE OF $29,831.10.  THIS AMOUNT WAS DUE UNDER THE TERMS OF
TWO CONTRACTS FOR WORK, LABOR AND MATERIALS FURNISHED IN CONNECTION
WITH THE CONSTRUCTION OF TWO AIRPORTS FOR THE USE OF THE UNITED STATES
ARMY.  PETITIONERS STATE THAT THIS BALANCE "WAS IN THE NATURE OF AN
OPEN ACCOUNT AND REPRESENTED AN ACCOUNT RECEIVABLE" IN THEIR HANDS. 

THE RESPONDENT TAX OFFICIALS OF FULTON COUNTY, GEORGIA, SOUGHT TO
ASSESS THIS OPEN ACCOUNT FOR STATE AND COUNTY AD VALOREM TAX PURPOSES. 
FN1  PETITIONERS BROUGHT THIS ACTION IN A STATE COURT TO ENJOIN SUCH
ASSESSMENT, CLAIMING THAT THE OPEN ACCOUNT WAS AN INSTRUMENTALITY OF
THE UNITED STATES AND HENCE WAS IMMUNE FROM STATE OR COUNTY TAXATION. 
THE SUPREME COURT OF GEORGIA OVERRULED THE TRIAL COURT'S DISMISSAL OF
RESPONDENTS' GENERAL DEMURRER AND DIRECTED THAT THE PETITION BE
DISMISSED.  197 GA. 95, 28 S.E.2D 148.  WE GRANTED CERTIORARI BECAUSE
OF THE IMPORTANT CONSTITUTIONAL AND STATUTORY PROBLEMS INHERENT IN THE
CASE. 

I. PETITIONERS CLAIM THAT THE PROPOSED TAX ON THE OPEN ACCOUNT CLAIM
AGAINST THE UNITED STATES IS A TAX UPON THE CREDIT OF THE FEDERAL
GOVERNMENT AND UPON ITS POWER TO RAISE MONEY TO CARRY ON MILITARY AND
CIVIL OPERATIONS.  HENCE, IT IS ARGUED, SUCH A TAX IS UNCONSTITUTIONAL
UNDER THE RULE, FIRST ENUNCIATED IN MCCULLOCH V. MARYLAND, 4 WHEAT. 
316, THAT WITHOUT CONGRESSIONAL ACTION THERE IS IMMUNITY FROM STATE AND
LOCAL TAXATION, IMPLIED FROM THE CONSTITUTION ITSELF, OF ALL
PROPERTIES, FUNCTIONS AND INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT. 
FN2  WE THINK OTHERWISE. 

IN THE FIRST PLACE, AN OPEN ACCOUNT CLAIM AGAINST THE UNITED STATES
DOES NOT REPRESENT A CREDIT INSTRUMENTALITY OF THE FEDERAL GOVERNMENT
WITHIN THE MEANING OF THIS CONSTITUTIONAL IMMUNITY.  THE RECORD HERE
REVEALS ONLY THAT PETITIONERS CLAIM THAT THE UNITED STATES OWES THEM
$29,831.10, WHICH AMOUNT IS CARRIED BY THEM AS AN ACCOUNT RECEIVABLE
AND "IS IN THE NATURE OF AN OPEN ACCOUNT."  THERE ARE THE USUAL
PROVISIONS OF STANDARD FORM GOVERNMENT CONSTRUCTION CONTRACTS CALLING
FOR PROGRESS PAYMENTS BY THE UNITED STATES, WITH FINAL PAYMENT BEING
MADE AFTER COMPLETION AND ACCEPTANCE OF THE WORK.  THERE IS NO EVIDENCE
OF ANY BARGAINING FOR A CREDIT EXTENSION OF $29,831.10 OR ANY
PROVISIONS FOR THE PAYMENT OF INTEREST ON AMOUNTS DUE UNDER THE
CONTRACTS.  NOR IS THERE ANY INDICATION THAT ANY CONDITIONS PRECEDENT
NEEDED TO BE FULFILLED OR THAT, ON THE SUPPOSITION THAT THE AMOUNT WAS
CONCEDED TO BE CORRECT BY THE UNITED STATES, ANYTHING OTHER THAN THE
FORMAL MECHANICS OF PAYMENT NEEDED TO BE PERFORMED.  WE CAN ONLY
ASSUME, THEREFORE, THAT THIS IS AN ORDINARY OPEN ACCOUNT AS GENERALLY
DEFINED IN THE COMMERCIAL WORLD.  FN3  IN OTHER WORDS, IT IS AN
UNSETTLED CLAIM OR DEMAND MADE BY THE CREDITOR WHICH APPEARS IN HIS
ACCOUNT BOOKS.  IT IS NOT EVIDENCED BY ANY WRITTEN DOCUMENT WHEREBY THE
UNITED STATES, THE DEBTOR, HAS PROMISED TO PAY THIS CLAIM AT A CERTAIN
TIME IN THE FUTURE; NOR IS THERE ANY BINDING ACKNOWLEDGMENT BY THE
UNITED STATES OF THE CORRECTNESS OF THE CLAIM.  CONCEIVABLY THE AMOUNT
CLAIMED TO BE DUE IS INCORRECT OR IS SUBJECT TO CERTAIN DEFENSES OR
COUNTERCLAIMS BY THE UNITED STATES, NECESSITATING FURTHER SETTLEMENT OR
ADJUSTMENT.  SUCH A UNILATERAL, UNLIQUIDATED CREDITOR'S CLAIM, WHICH BY
ITSELF DOES NOT BIND THE UNITED STATES AND WHICH IN NO WAY INCREASES OR
AFFECTS THE PUBLIC DEBT, CANNOT BE SAID TO BE A CREDIT INSTRUMENTALITY
OF THE UNITED STATES FOR PURPOSES OF TAX IMMUNITY. 

IN THESE RESPECTS A MERE OPEN ACCOUNT CLAIM DIFFERS VITALLY FROM THE
TYPE OF CREDIT INSTRUMENTALITIES WHICH THIS COURT IN THE PAST HAS
RECOGNIZED AS CONSTITUTIONALLY EXEMPT FROM STATE AND LOCAL TAXATION. 
FN4  SUCH INSTRUMENTALITIES IN EACH INSTANCE HAVE BEEN CHARACTERIZED BY
(1) WRITTEN DOCUMENTS, (2) THE BEARING OF INTEREST, (3) A BINDING
PROMISE BY THE UNITED STATES TO PAY SPECIFIED SUMS AT SPECIFIED DATES
AND (4) SPECIFIC CONGRESSIONAL AUTHORIZATION, WHICH ALSO PLEDGED THE
FAITH AND CREDIT OF THE UNITED STATES IN SUPPORT OF THE PROMISE TO
PAY.  THUS IN THE BANKS V. THE MAYOR, 7 WALL.  16, IMMUNITY WAS GRANTED
TO INTEREST-BEARING CERTIFICATES OF INDEBTEDNESS ISSUED TO PUBLIC
CREDITORS PURSUANT TO THE ACT OF MARCH 1, 1862, 12 STAT. 352, AND THE
ACT OF MARCH 17, 1862, 12 STAT. 370.  UNITED STATES STOCK, BEARING
INTEREST OF 6% AND 7%, ISSUED PURSUANT TO THE ACT OF APRIL 20, 1822, 3
STAT. 663, WAS DECLARED IMMUNE IN WESTON V. CHARLESTON, 2 PET. 449. 
SEE ALSO BANK OF COMMERCE V. NEW YORK CITY, 2 BLACK 620, HOLDING IMMUNE
INTEREST-BEARING STOCK OF THE UNITED STATES AUTHORIZED BY VARIOUS ACTS
OF CONGRESS,  FN5 AND BANK OF THE COMMONWEALTH V. COMMISSIONER OF
TAXES, 2 BLACK 635, NOTE, DECLARING IMMUNE UNITED STATES STOCK, BEARING
NOT OVER 5% INTEREST, AUTHORIZED BY THE ACT OF JUNE 14, 1858, 11 STAT.
365.  INTEREST-BEARING BONDS OF THE FEDERAL GOVERNMENT AUTHORIZED BY
LAW HAVE CONSISTENTLY BEEN HELD IMMUNE FROM STATE AND LOCAL TAXATION. 
SEE, FOR EXAMPLE, HOME SAVINGS BANK V. DES MOINES, 205 U.S. 503.  NONE
OF THESE CASES IS AUTHORITY FOR PLACING AN OPEN ACCOUNT CLAIM UNDER THE
PROTECTIVE UMBRELLA OF CONSTITUTIONAL IMMUNITY. 

IT IS CLEAR, MOREOVER, THAT THE PROPOSED TAXATION OF THIS OPEN
ACCOUNT WILL NOT AFFECT OR EMBARRASS IN ANY SUBSTANTIAL MEASURE THE
POWER OF THE UNITED STATES TO SECURE CREDIT OR TO SECURE AID FROM
INDEPENDENT CONTRACTORS FOR NECESSARY MILITARY AND CIVIL CONSTRUCTION
PROJECTS.  THE TAX HERE IS A UNIFORM, NON-DISCRIMINATORY LEVY UPON AN
UNLIQUIDATED ASSET OF THE CREDITOR AND NOT UPON A CREDIT
INSTRUMENTALITY OF THE UNITED STATES.  THAT THIS ASSET INVOLVES A CLAIM
AGAINST THE FEDERAL GOVERNMENT IS NO MORE FATAL TO THE VALIDITY OF THE
TAX THAN THE FACT THAT IN JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134,
THE TAX WAS LEVIED ON THE CONTRACTOR'S GROSS RECEIPTS FROM THE UNITED
STATES OR THE FACT THAT IN ALABAMA V. KING & BOOZER, 314 U.S. 1, THE
SALES TAX WAS PLACED ON THE SALE OF PROPERTY TO A CONTRACTOR FOR USE IN
A FEDERAL GOVERNMENT PROJECT.  THE ASSETS OF AN INDEPENDENT CONTRACTOR
THAT ARE DERIVED FROM THE PROFITS OF A GOVERNMENT CONTRACT STAND IN NO
PREFERRED CONSTITUTIONAL POSITION SO FAR AS TAXATION IS CONCERNED. 
THEY TOO MUST BEAR THEIR FAIR SHARE OF THE TAX BURDEN.  AND AS LONG AS
THAT BURDEN IS NON-DISCRIMINATORY, THERE IS NO BASIS FOR ASSUMING THAT
CONTRACTORS WILL BE ANY LESS WILLING TO ENTER INTO CONSTRUCTION
CONTRACTS WITH THE UNITED STATES.  NOR IS SUCH A TAX LIKELY TO AFFECT
OR IMPAIR IN ANY WAY THEIR ABILITY TO DISCHARGE THEIR DUTIES
EFFICIENTLY.  THERE IS THUS NO PRACTICAL REASON FOR IMMUNIZING OPEN
ACCOUNTS OF THIS NATURE FROM TAXATION. 

II.  THE CLAIM THAT AN OPEN ACCOUNT IS AN OBLIGATION EXEMPT FROM
TAXATION UNDER THE PROVISIONS OF SEC. 3701 OF THE REVISED STATUTES, 31
U.S.C. SEC. 742, IS ALSO WITHOUT MERIT.  CONGRESS BY THIS SECTION HAS
PROVIDED THAT "ALL STOCKS, BONDS, TREASURY NOTES, AND OTHER OBLIGATIONS
OF THE UNITED STATES, SHALL BE EXEMPT FROM TAXATION BY OR UNDER STATE
OR MUNICIPAL OR LOCAL AUTHORITY."  THE PLAIN MEANING OF THESE WORDS AND
THEIR LEGISLATIVE BACKGROUND DISPEL ANY DOUBT AS TO THEIR
INAPPLICABILITY TO AN OPEN ACCOUNT CLAIM OF A CREDITOR OF THE UNITED
STATES. 

OBLIGATIONS ISSUED PURSUANT TO CONGRESSIONAL AUTHORIZATION.  STOCKS,
BONDS AND TREASURY NOTES  FN6  ARE OBVIOUSLY OF THAT NATURE.  AND,
UNDER THE RULE OF EJUSDEM GENERIS, IT IS REASONABLE TO CONSTRUE THE
GENERAL WORDS "OTHER OBLIGATIONS," WHICH ALLEGEDLY COVER OPEN ACCOUNTS,
AS REFERRING ONLY TO OBLIGATIONS OR SECURITIES OF THE SAME TYPE AS
THOSE SPECIFICALLY ENUMERATED.  HIBERNIA SAVINGS SOCIETY V. SAN
FRANCISCO, 200 U.S. 310.  CF. HELVERING V. STOCKHOLMS ENSKILDA BANK,
293 U.S. 84.  THIS INTERPRETATION IS IN ACCORD WITH THE LONG
ESTABLISHED CONGRESSIONAL INTENT TO PREVENT TAXES WHICH DIMINISH IN THE
SLIGHTEST DEGREE THE MARKET VALUE OR THE INVESTMENT ATTRACTIVENESS OF
OBLIGATIONS ISSUED BY THE UNITED STATES IN AN EFFORT TO SECURE
NECESSARY CREDIT.  IT IS UNNECESSARY TO EXTEND SUCH TAX EXEMPTION, AT
LEAST THROUGH STATUTORY INTERPRETATION, TO NON-INTEREST-BEARING CLAIMS
OR OBLIGATIONS WHICH THE UNITED STATES DOES NOT USE OR NEED FOR CREDIT
PURPOSES.  TAX EXEMPTIONS BEING THE EXCEPTION RATHER THAN THE RULE,
MUCH CLEARER LANGUAGE EVIDENCING AN INTENT TO IMMUNIZE OPEN ACCOUNT
CLAIMS UNDER SEC. 3701 IS NECESSARY UNDER THESE CIRCUMSTANCES. 

THE SEVEN STATUTORY EXEMPTION PROVISIONS  FN7  FROM WHICH SEC. 3701
WAS DERIVED FURTHER CONFIRM THE CONCLUSION THAT CONGRESS AT NO TIME
INTENDED TO EXEMPT OPEN ACCOUNT CLAIMS.  IN ALL SEVEN INSTANCES THE
EXEMPTION PROVISIONS APPEARED IN STATUTES AUTHORIZING THE ISSUANCE OF
INTEREST-BEARING BONDS OR TREASURY NOTES.  FIVE OF THE SEVEN STATUTES
SPECIFICALLY LIMITED TAX EXEMPTIONS TO THE SECURITIES ISSUED UNDER
THOSE ENACTMENTS; ONE EXTENDED EXEMPTION TO "ALL STOCKS, BONDS, AND
OTHER SECURITIES OF THE UNITED STATES"; FN8  AND THE OTHER GRANTED
EXEMPTION TO "ALL BONDS, TREASURY NOTES, AND OTHER OBLIGATIONS OF THE
UNITED STATES."  FN9  THUS, IF THE RULE OF EJUSDEM GENERIS BE APPLIED
TO THE TWO LATTER PROVISIONS, ALL SEVEN EXEMPTIONS WERE LIMITED BY
THEIR TERMS TO INTEREST-BEARING SECURITIES OR OBLIGATIONS AUTHORIZED BY
CONGRESS, FOR THE PAYMENT OF WHICH THE CREDIT AND FAITH OF THE UNITED
STATES WAS PLEDGED.  FULL EFFECT MUST ALSO BE GIVEN TO THE SUBSEQUENT
STATUTORY PROVISION ALLOWING STATES TO TAX "LEGAL TENDER NOTES AND
OTHER NOTES AND CERTIFICATES OF THE UNITED STATES PAYABLE ON DEMAND AND
CIRCULATING OR INTENDED TO CIRCULATE AS CURRENCY."  FN10  ALL OF THESE
RELATED STATUTES ARE A CLEAR INDICATION OF AN INTENT TO IMMUNIZE FROM
STATE TAXATION ONLY THE INTEREST-BEARING OBLIGATIONS OF THE UNITED
STATES WHICH ARE NEEDED TO SECURE CREDIT TO CARRY ON THE NECESSARY
FUNCTIONS OF GOVERNMENT.  THAT INTENT, WHICH IS LARGELY CODIFIED IN
SEC. 3701, SHOULD NOT BE EXPANDED OR MODIFIED IN ANY DEGREE BY THE
JUDICIARY. 

THE JUDGMENT OF THE SUPREME COURT OF GEORGIA IS AFFIRMED. 

FN1  GEORGIA CODE (1933) SEC. 92-101 SUBJECTS ALL REAL AND PERSONAL
PROPERTY TO TAXATION, EXCEPT AS OTHERWISE PROVIDED BY LAW, AND SEC. 92
102 INCLUDES WITHIN THE DEFINITION OF PERSONAL PROPERTY "MONEY DUE ON
OPEN ACCOUNT OR EVIDENCED BY NOTES, CONTRACTS, BONDS, OR OTHER
OBLIGATIONS, SECURED OR UNSECURED." 

FN2  PEOPLE EX REL. ASTORIA LIGHT CO. V. CANTOR, 236 N.Y. 417, 141
N.E. 901, IS CITED IN SUPPORT OF THIS ARGUMENT. 

FN3  SEE PATON, ACCOUNTANTS' HANDBOOK 229-30(2D ED., 1934); OLSON AND
HALLMAN, CREDIT MANAGEMENT 36(1925); JAMISON, FINANCE 56 FF (1927);
KRAMER V. GARDNER, 104 MINN. 370, 373, 116 N.W. 925, 926. 

FN4  IN BANK V. SUPERVISORS, 7 WALL.  26, THIS COURT HELD THAT
CONGRESS HAD THE CONSTITUTIONAL POWER, AND EXERCISED IT, TO EXEMPT NON
INTERESTBEARING UNITED STATES LEGAL TENDER NOTES, CALLED "GREENBACKS." 
THE DECISION DID NOT REST ON A FINDING THAT THESE NOTES WERE
CONSTITUTIONALLY EXEMPT IN AND OF THEMSELVES.  CONGRESS THEREAFTER
ENACTED A STATUTE WHICH IN EFFECT REVERSED THIS DECISION AND ALLOWED
SUCH NOTES TO BE TAXED BY STATES.  ACT OF AUG. 13, 1894, 28 STAT. 278,
SEC. 1, 31 U.S.C. SEC. 425. 

FN5  THIS CASE INVOLVED STOCK ISSUED UNDER THE ACT OF APRIL 15, 1842,
5 STAT. 473, THE ACT OF JAN. 26, 1847, 9 STAT. 118, THE ACT OF MARCH
31, 1848, 9 STAT. 217, AND THE ACT OF FEB. 8, 1861, 12 STAT. 129. 

FN6  THE ONLY TREASURY NOTES THAT COULD BE INCLUDED WITHIN SEC. 3701
ARE INTEREST-BEARING ONES, IN LIGHT OF THE PROVISIONS OF THE ACT OF
AUG. 13, 1894, 28 STAT. 278, SEC. 1, 31 U.S.C. SEC. 425, ALLOWING NOTES
AND CERTIFICATES PAYABLE ON DEMAND AND CIRCULATING AS CURRENCY TO BE
TAXED BY THE STATES. 

FN7  (1)  ACT OF FEB. 25, 1862, 12 STAT. 345, 346, EXEMPTING "ALL
STOCKS, BONDS, AND OTHER SECURITIES OF THE UNITED STATES"; (2) ACT OF
MARCH 3, 1863, 12 STAT. 709, 710, EXEMPTING "ALL THE BONDS AND TREASURY
NOTES OR UNITED STATES NOTES ISSUED UNDER THE PROVISIONS OF THIS ACT";
(3)  ACT OF MARCH 3, 1864, 13 STAT. 13, EXEMPTING "ALL BONDS ISSUED
UNDER THIS ACT"; (4)  ACT OF JUNE 30, 1864, 13 STAT. 218, EXEMPTING
"ALL BONDS, TREASURY NOTES, AND OTHER OBLIGATIONS OF THE UNITED
STATES"; (5)  ACT OF JAN. 28, 1865, 13 STAT. 425, EXEMPTING "SUCH
NOTES" AS WERE ISSUED UNDER THE STATUTE IN LIEU OF BONDS; (6)  ACT OF
MARCH 3, 1865, 13 STAT. 468, 469, EXEMPTING "ALL BONDS OR OTHER
OBLIGATIONS ISSUED UNDER THIS ACT"; (7)  ACT OF JULY 14, 1870, 16 STAT.
272, EXEMPTING "ALL OF WHICH SAID SEVERAL CLASSES OF BONDS (AUTHORIZED
TO BE ISSUED UNDER THE ACT) AND THE INTEREST THEREON." 

FN8  ACT OF FEB. 25, 1862, 12 STAT. 345, 346.  THIS HAS BEEN
DESCRIBED IN CONGRESS AS EMBRACING "SIMPLY THE PUBLIC SECURITIES, SUCH
AS ARE DESCRIBED AS THE PERMANENT DEBT OF THE GOVERNMENT."  CONG.
GLOBE, P. 3184, 38TH CONG., 1ST SESS.    FN9  ACT OF JUNE 30, 1864, 13
STAT. 218.  THIS PROVISION COMES CLOSEST TO THE WORDING OF SEC. 3701. 
IN SPEAKING OF THE TERM "OTHER OBLIGATIONS," REP. HOOPER SAID DURING
THE CONGRESSIONAL DEBATES ON THE ACT THAT "I UNDERSTAND, HOWEVER, THAT
THIS PROVISION APPLIES ONLY TO THE INTEREST-BEARING OBLIGATIONS OF THE
GOVERNMENT."  CONG. GLOBE, P. 3183, 38TH CONG., 1ST SESS.  HE ALSO
STATED THAT THE COMMITTEE IN CHARGE OF THE BILL WHICH EVENTUALLY BECAME
LAW "FOUND THE GENERAL PRACTICE SINCE THE COMMENCEMENT OF THE
GOVERNMENT HAD BEEN TO EXEMPT FROM TAXATION THE OBLIGATIONS OF THE
GOVERNMENT ISSUED BY THE UNITED STATES UNDER LOAN BILLS."  IBID. 
THIS ACT, MOREOVER, OBVIOUSLY USED THE WORD "OBLIGATION" THROUGHOUT TO
REFER TO WRITTEN DOCUMENTS, MAKING PROVISIONS RELATING TO
COUNTERFEITING, ALTERING, PRINTING AND PHOTOGRAPHING THEM.  AND IN SEC.
13, THE ACT DEFINED THE WORDS "OBLIGATION OR OTHER SECURITY OF THE
UNITED STATES," AS USED IN THIS ACT, TO INCLUDE AND MEAN "ALL BONDS,
COUPONS, NATIONAL CURRENCY, UNITED STATES NOTES, TREASURY NOTES,
FRACTIONAL NOTES, CHECKS FOR MONEY OF AUTHORIZED OFFICERS OF THE UNITED
STATES, CERTIFICATES OF INDEBTEDNESS, CERTIFICATES OF DEPOSIT, STAMPS,
AND OTHER REPRESENTATIVES OF VALUE OF WHATEVER DENOMINATION, WHICH HAVE
BEEN OR MAY BE ISSUED UNDER ANY ACT OF CONGRESS." 

FN10  ACT OF AUG. 13, 1894, 28 STAT. 278, SEC. 1, 31 U.S.C. SEC.
425.  SEE NOTES 4 AND 6, SUPRA.
..END :






COMM'R V. SCOTTISH AMERICAN CO., 323 U.S. 119 


ARGUED NOVEMBER 16, 1944.  - DECIDED DECEMBER 4, 1944.  - 139 F.2D 419,
AFFIRMED.  - 142 F.2D 401, REVERSED. 


1.  THE CONCLUSION OF THE TAX COURT THAT THE TAXPAYERS IN THIS CASE
HAD "AN OFFICE OR PLACE OF BUSINESS" IN THE UNITED STATES WAS SUPPORTED
BY SUBSTANTIAL EVIDENCE, AND ITS DETERMINATION THAT THEY WERE THEREFORE
ENTITLED TO BE TAXED AS RESIDENT FOREIGN CORPORATIONS UNDER SEC. 231(B)
OF THE REVENUE ACTS OF 1936 AND 1938 COULD NOT BE SET ASIDE ON
APPELLATE REVIEW.  P. 123. 

2.  WHEN THE TAX COURT'S FACTUAL INFERENCES AND CONCLUSIONS ARE
DETERMINATIVE OF COMPLIANCE WITH STATUTORY REQUIREMENTS, THE APPELLATE
COURTS ARE LIMITED TO A DETERMINATION OF WHETHER THEY HAVE ANY
SUBSTANTIAL BASIS IN THE EVIDENCE.  THE JUDICIAL EYE MUST NOT IN THE
FIRST INSTANCE ROVE ABOUT SEARCHING FOR EVIDENCE TO SUPPORT OTHER
CONFLICTING INFERENCES AND CONCLUSIONS WHICH THE JUDGES OR THE
LITIGANTS MAY CONSIDER MORE REASONABLE OR DESIRABLE.  IT MUST BE CAST
DIRECTLY AND PRIMARILY UPON THE EVIDENCE IN SUPPORT OF THOSE MADE BY
THE TAX COURT.  IF A SUBSTANTIAL BASIS IS LACKING THE APPELLATE COURT
MAY THEN INDULGE IN MAKING ITS OWN INFERENCES AND CONCLUSIONS OR IT MAY
REMAND THE CASE TO THE TAX COURT FOR FURTHER APPROPRIATE PROCEEDINGS. 
BUT IF SUCH A BASIS IS PRESENT THE PROCESS OF JUDICIAL REVIEW IS AT AN
END.  P. 124. 

COMMISSIONER OF INTERNAL REVENUE V. SCOTTISH AMERICAN INVESTMENT CO.,
LTD. 

NO. 52.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT.* 

*TOGETHER WITH NO. 53, COMMISSIONER OF INTERNAL REVENUE V. BRITISH
ASSETS TRUST, LTD., AND NO. 54, COMMISSIONER OF INTERNAL REVENUE V.
SECOND BRITISH ASSETS TRUST, LTD., ALSO ON WRITS OF CERTIORARI TO THE
CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT; AND NO. 220, SCOTTISH
AMERICAN INVESTMENT CO., LTD. V. COMMISSIONER OF INTERNAL REVENUE, NO.
221, BRITISH ASSETS TRUST, LTD. V. COMMISSIONER OF INTERNAL REVENUE,
AND NO. 222, SECOND BRITISH ASSETS TRUST, LTD. V. COMMISSIONER OF
INTERNAL REVENUE, ON WRITS OF CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 322 U.S. 722 AND POST, P. 693, TO REVIEW IN NOS. 52, 53,
AND 54 AFFIRMANCES, AND IN NOS. 220, 221, AND 222 REVERSALS, OF
DECISIONS OF THE TAX COURT, 47 B.T.A. 474, WHICH REVERSED THE
COMMISSIONER'S DETERMINATIONS OF DEFICIENCIES IN INCOME TAX. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE CONFRONTED HERE WITH ANOTHER ASPECT OF THE PROBLEM OF THE
JUDICIAL REVIEWABILITY OF TAX COURT DETERMINATIONS. 

THE THREE TAXPAYERS INVOLVED IN THESE CASES ARE INVESTMENT TRUSTS
ORGANIZED UNDER THE LAWS OF GREAT BRITAIN, WITH PRINCIPAL OFFICES IN
EDINBURGH, SCOTLAND.  EACH IS ENGAGED IN THE BUSINESS OF INVESTING THE
FUNDS OF ITS SECURITY HOLDERS FOR THE PRIMARY PURPOSE OF DERIVING
INCOME FROM INVESTMENTS.  THE TAX COURT, FORMERLY KNOWN AS THE BOARD OF
TAX APPEALS, HAD HELD THAT THESE TAXPAYERS HAD AN "OFFICE OR PLACE OF
BUSINESS" WITHIN THE UNITED STATES DURING THE FOUR YEARS IN QUESTION
AND HENCE WERE ENTITLED TO BE TAXED AS RESIDENT FOREIGN CORPORATIONS
UNDER SEC. 231(B) OF THE REVENUE ACTS OF 1936 AND 1938.  47 B.T.A.
474.  SUCH A HOLDING WOULD RESULT IN SUBSTANTIAL TAX SAVINGS THAT WOULD
BE UNAVAILABLE TO THEM HAD THEY NOT MAINTAINED SUCH AN OFFICE IN THIS
COUNTRY.  THE TAX RETURNS FOR THE VARIOUS YEARS HAVING BEEN FILED IN
DIFFERENT COLLECTORS' OFFICES, THE COMMISSIONER APPEALED TO TWO CIRCUIT
COURTS OF APPEAL.  FN1  THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT, DEALING WITH THE 1936 AND 1937 TAX RETURNS, AFFIRMED THE TAX
COURT'S DECISION AS TO THOSE YEARS.  139 F.2D 419.  BUT THE CIRCUIT
COURT OF APPEALS FOR THE THIRD CIRCUIT, CONSIDERING THE IDENTICAL FACTS
AND SUBSTANTIALLY THE SAME STATUTES AND REGULATIONS, HELD THAT THE
TAXPAYERS DID NOT HAVE AN OFFICE OR PLACE OF BUSINESS WITHIN THE UNITED
STATES DURING 1938 AND 1939; THE DECISION OF THE TAX COURT AS TO THOSE
YEARS WAS ACCORDINGLY REVERSED.  142 F.2D 401.  THE IRRECONCILABLE
CONFLICT BETWEEN THE TWO COURTS BELOW LED US TO GRANT CERTIORARI. 

THE TAX COURT MADE VIRTUALLY UNDISPUTED FINDINGS OF FACT WHICH NEED
NOT BE REPEATED HERE IN DETAIL.  IN BRIEF, IT WAS FOUND THAT THE THREE
TAXPAYERS JOINTLY APPOINTED A MEMBER OF AN AMERICAN ACCOUNTING FIRM AS
THEIR ASSISTANT SECRETARY.  HE WAS INSTRUCTED TO ESTABLISH AND MAINTAIN
AN OFFICE IN THE UNITED STATES FOR THEM IN ORDER TO OBTAIN BETTER
REPRESENTATION OF THEIR INTERESTS IN THIS COUNTRY, LARGE AMOUNTS OF
AMERICAN SECURITIES BEING HELD AS INVESTMENTS BY THEM.  BY ESTABLISHING
THIS OFFICE THEY ALSO SOUGHT TO OBTAIN CERTAIN TAX ADVANTAGES.  THE
OFFICE WAS ACCORDINGLY OPENED AND TWO FULL-TIME ASSISTANTS TO THE
ASSISTANT SECRETARY WERE EMPLOYED.  THE AMERICAN SECURITIES WERE KEPT
IN THE CUSTODY OF TWO BANKS, THROUGH WHICH THE SECURITIES WERE BOUGHT
AND SOLD, AND ASSISTANCE ON CERTAIN MATTERS WAS OBTAINED FROM THE
ACCOUNTING FIRM.  THIS OFFICE OF THE TAXPAYERS KEPT FULL RECORDS
CONCERNING ALL AMERICAN HOLDINGS, COLLECTED AND RECEIVED DIVIDENDS ON
SUCH HOLDINGS, ACTED ON PROXIES AND PERFORMED OTHER DUTIES RELATIVE TO
THE MAINTENANCE OF THESE INVESTMENTS.  THE ASSISTANT SECRETARY MADE
PERIODIC FINANCIAL, ECONOMIC AND POLITICAL REPORTS TO THE HOME OFFICES,
AS WELL AS SPECIFIC REPORTS CONCERNING PARTICULAR HOLDINGS.  UNITED
STATES TAX RETURNS WERE PREPARED IN THIS OFFICE AND LOCAL EXPENSES WERE
DISBURSED THEREFROM.  ALL DECISIONS AS TO THE BUYING AND SELLING OF
SECURITIES AND AS TO INVESTMENT POLICIES, HOWEVER, WERE MADE BY THE
HOME OFFICES IN EDINBURGH. 

CERTAIN INFERENCES AND CONCLUSIONS WERE THEN DRAWN FROM THESE FACTS
BY THE TAX COURT.  IT REFUSED TO CONSIDER EACH SEPARATE ACTIVITY IN
THIS OFFICE APART FROM ITS INTEGRAL RELATION TO THE ENTIRE INVESTMENT
TRUST BUSINESS AND WAS OF THE OPINION THAT "AN OFFICE HANDLING AFFAIRS
TO THIS EXTENT MUST BE REGARDED AS REAL AND SUBSTANTIAL.  IT WAS HERE
THAT A VERY LARGE PART OF THE AFFAIRS OF PETITIONERS IN THIS COUNTRY
WERE TAKEN CARE OF."  THE TAX COURT FURTHER CONCLUDED THAT THIS OFFICE
WAS NOT A SHAM BUT WAS A PLACE FOR THE NECESSARY TRANSACTION OF THE
AMERICAN AFFAIRS OF THE TAXPAYERS; "THE OFFICE WAS USED FOR THE REGULAR
TRANSACTION OF BUSINESS AND NOT AS A PLACE WHERE CASUAL OR INCIDENTAL
TRANSACTIONS MIGHT BE, OR WERE, EFFECTED." 

UTILIZING THE PROVISIONS OF SEC. 231(B) AND OF THE REGULATIONS
PROMULGATED THEREUNDER,  FN2  THE TAX COURT REACHED THE ULTIMATE
CONCLUSION THAT THE TAXPAYERS MAINTAINED AN OFFICE OR PLACE OF BUSINESS
WITHIN THE UNITED STATES AND WERE THEREFORE ENTITLED TO BE TAXED AS
RESIDENT FOREIGN CORPORATIONS.  THERE IS NO CHARGE HERE THAT THE TAX
COURT FAILED TO FOLLOW THE APPLICABLE STATUTES OR REGULATIONS.  NO
CLEAR CUT MISTAKE OF LAW IS ALLEGED.  NOR ARE ANY CONSTITUTIONAL ISSUES
INVOLVED.  THE SOLE ISSUE REVOLVES ABOUT THE PROPRIETY OF THE
INFERENCES AND CONCLUSIONS DRAWN FROM THE EVIDENCE BY THE TAX COURT. 
THE TAXPAYERS CLAIM THAT THESE DETERMINATIONS ARE SUPPORTED BY
SUBSTANTIAL EVIDENCE AND HENCE WERE NOT REVERSIBLE BY AN APPELLATE
COURT.  THE COMMISSIONER CHARGES THAT THE FACTS DEMONSTRATE THAT THE
AMERICAN OFFICE WAS NOT INTENDED TO BE USED FOR THE TRANSACTION OF THE
REGULAR BUSINESS OF MAKING INVESTMENTS AND THAT IT WAS IMPROPER AS A
MATTER OF LAW TO CLASSIFY THE TAXPAYERS AS RESIDENT FOREIGN
CORPORATIONS. 

THE ANSWER IS TO BE FOUND IN A PROPER REALIZATION OF THE DISTINCTIVE
FUNCTIONS OF THE TAX COURT AND THE CIRCUIT COURTS OF APPEAL IN THIS
RESPECT.  THE TAX COURT HAS THE PRIMARY FUNCTION OF FINDING THE FACTS
IN TAX DISPUTES, WEIGHING THE EVIDENCE, AND CHOOSING FROM AMONG
CONFLICTING FACTUAL INFERENCES AND CONCLUSIONS THOSE WHICH IT CONSIDERS
MOST REASONABLE.  THE CIRCUIT COURTS OF APPEAL HAVE NO POWER TO CHANGE
OR ADD TO THOSE FINDINGS OF FACT OR TO REWEIGH THE EVIDENCE.  AND WHEN
THE TAX COURT'S FACTUAL INFERENCES AND CONCLUSIONS ARE DETERMINATIVE OF
COMPLIANCE WITH STATUTORY REQUIREMENTS, THE APPELLATE COURTS ARE
LIMITED TO A DETERMINATION OF WHETHER THEY HAVE ANY SUBSTANTIAL BASIS
IN THE EVIDENCE.  THE JUDICIAL EYE MUST NOT IN THE FIRST INSTANCE ROVE
ABOUT SEARCHING FOR EVIDENCE TO SUPPORT OTHER CONFLICTING INFERENCES
AND CONCLUSIONS WHICH THE JUDGES OR THE LITIGANTS MAY CONSIDER MORE
REASONABLE OR DESIRABLE.  IT MUST BE CAST DIRECTLY AND PRIMARILY UPON
THE EVIDENCE IN SUPPORT OF THOSE MADE BY THE TAX COURT.  IF A
SUBSTANTIAL BASIS IS LACKING THE APPELLATE COURT MAY THEN INDULGE IN
MAKING ITS OWN INFERENCES AND CONCLUSIONS OR IT MAY REMAND THE CASE TO
THE TAX COURT FOR FURTHER APPROPRIATE PROCEEDINGS.  BUT IF SUCH A BASIS
IS PRESENT THE PROCESS OF JUDICIAL REVIEW IS AT AN END.  HELVERING V.
NATIONAL GROCERY CO., 304 U.S. 282, 294; WILMINGTON TRUST CO. V.
HELVERING, 316 U.S. 164, 168; COMMISSIONER V. HEININGER, 320 U.S. 467,
475; DOBSON V. COMMISSIONER, 320 U.S. 489. 

OUR EXAMINATION OF THE RECORD CONVINCES US THAT THE FACTUAL
INFERENCES AND CONCLUSIONS OF THE TAX COURT ARE SUPPORTED BY
SUBSTANTIAL EVIDENCE.  WHILE DECISIONS AS TO THE PURCHASE AND SALE OF
AMERICAN SECURITIES WERE MADE IN THE EDINBURGH OFFICES, THERE WAS
ABUNDANT EVIDENCE THAT THE AMERICAN OFFICE PERFORMED VITAL FUNCTIONS IN
THE TAXPAYERS' INVESTMENT TRUST BUSINESS.  THE UNCONTRADICTED EVIDENCE
SHOWED THAT THIS OFFICE COLLECTED DIVIDENDS FROM THE VAST HOLDINGS OF
AMERICAN SECURITIES AND DID COUNTLESS OTHER TASKS ESSENTIAL TO THE
PROPER MAINTENANCE OF A LARGE INVESTMENT PORTFOLIO.  ALTHOUGH SOME
MATTERS PERTAINING TO THE AMERICAN BUSINESS WERE TAKEN CARE OF BY
OTHERS, THIS OFFICE PERFORMED A VERY SUBSTANTIAL PART OF THESE DUTIES
AND COULD BE HELD TO HAVE SATISFIED THE STATUTORY REQUIREMENTS.  WE
CANNOT SAY THAT IT WAS UNREASONABLE FOR THE TAX COURT TO CONCLUDE THAT
THIS OFFICE WAS MORE THAN A SHAM AND THAT IT WAS USED FOR THE REGULAR
TRANSACTION OF BUSINESS.  HENCE IT WAS PROPER AS A MATTER OF LAW FOR
THE TAX COURT TO CLASSIFY THE TAXPAYERS AS RESIDENT FOREIGN
CORPORATIONS UNDER SEC. 231(B).  WE DO NOT DECIDE OR IMPLY THAT THE
CONTRARY INFERENCES AND CONCLUSIONS URGED BY THE COMMISSIONER ARE
ENTIRELY UNREASONABLE OR COMPLETELY UNSUPPORTED BY ANY PROBATIVE
EVIDENCE.  WE MERELY HOLD THAT SUCH CONTENTIONS ARE IRRELEVANT SO LONG
AS THERE IS ADEQUATE SUPPORT IN THE EVIDENCE FOR WHAT THE TAX COURT HAS
INFERRED.  IT FOLLOWS THAT THE TAX COURT'S CONCLUSIONS IN THIS CASE
CANNOT BE SET ASIDE ON APPELLATE REVIEW. 

MOREOVER, THIS CASE EXEMPLIFIES ONE TYPE OF FACTUAL DISPUTE WHERE
JUDICIAL ABSTINENCE SHOULD BE PRONOUNCED.  THE DECISION AS TO THE FACTS
IN THIS CASE, LIKE ANALOGOUS ONES THAT PRECEDED IT,  FN3 IS OF LITTLE
VALUE AS PRECEDENT.  THE FACTUAL PATTERN IS TOO DECISIVE AND TOO VARIED
FROM CASE TO CASE TO WARRANT A GREAT EXPENDITURE OF APPELLATE COURT
ENERGY ON UNRAVELLING CONFLICTING FACTUAL INFERENCES.  THE SKILLED
JUDGMENT OF THE TAX COURT, WHICH IS THE BASIC FACT-FINDING AND
INFERENCE-MAKING BODY, SHOULD THUS BE GIVEN WIDE RANGE IN SUCH
PROCEEDINGS. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT
IS AFFIRMED.  THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS FOR THE
THIRD CIRCUIT IS REVERSED. 

FN1  THE TAXPAYERS' RETURNS FOR 1936 AND 1937 WERE FILED WITH THE
COLLECTOR OF INTERNAL REVENUE FOR THE DISTRICT OF MARYLAND.  THE 1938
AND 1939 RETURNS WERE FILED WITH THE COLLECTOR OF INTERNAL REVENUE AT
NEWARK, N.J. UNDER SEC. 1141 OF THE INTERNAL REVENUE CODE, DECISIONS OF
THE TAX COURT MAY BE REVIEWED BY THE CIRCUIT COURT OF APPEALS FOR THE
CIRCUIT IN WHICH IS LOCATED THE COLLECTOR'S OFFICE WHERE THE TAX RETURN
IS FILED. 

FN2  SECTION 231(B) OF BOTH THE REVENUE ACTS OF 1936 AND 1938
PROVIDES FOR TAXES ON RESIDENT FOREIGN CORPORATIONS, DEFINING THEM AS
"A FOREIGN CORPORATION ENGAGED IN TRADE OR BUSINESS WITHIN THE UNITED
STATES OR HAVING AN OFFICE OR PLACE OF BUSINESS THEREIN."  REVENUE ACT
OF 1936, C. 690, 49 STAT. 1648, 1717; REVENUE ACT OF 1938, C. 289, 52
STAT. 447, 530.  THE TAX COURT AND THE TWO COURTS BELOW DID NOT PASS
UPON THE COMMISSIONER'S CONTENTION, RENEWED BEFORE US, THAT THE
TAXPAYERS WERE NOT "ENGAGED IN TRADE OR BUSINESS" WITHIN THE MEANING OF
THIS SECTION.  WE LIKEWISE DO NOT DISCUSS THAT CLAIM HERE SINCE IT IS
SUFFICIENT IF IT BE FOUND THAT THE TAXPAYERS IN THIS CASE HAD "AN
OFFICE OR PLACE OF BUSINESS" IN THIS COUNTRY.  SEE B.W. JONES TRUST V.
COMMISSIONER, 132 F.2D 914, 917. 

ART. 231-1 OF TREASURY REGULATIONS 94, PROMULGATED UNDER THE REVENUE
ACT OF 1936, PROVIDES IN PART:  "WHETHER A FOREIGN CORPORATION HAS AN
'OFFICE OR PLACE OF BUSINESS' WITHIN THE UNITED STATES DEPENDS UPON THE
FACTS IN A PARTICULAR CASE.  THE TERM 'OFFICE OR PLACE OF BUSINESS,'
HOWEVER, IMPLIES A PLACE FOR THE REGULAR TRANSACTION OF BUSINESS AND
DOES NOT INCLUDE A PLACE WHERE CASUAL OR INCIDENTAL TRANSACTIONS MIGHT
BE, OR ARE, EFFECTED."  ART. 231-1 OF TREASURY REGULATIONS 101,
PROMULGATED UNDER THE REVENUE ACT OF 1938, AND SEC. 19.231-1 OF
TREASURY REGULATIONS 103, APPLYING TO THE YEAR 1939, ARE SUBSTANTIALLY
THE SAME. 

FN3  SEE LINEN THREAD CO. V. COMMISSIONER, 128 F.2D 166; AKTIEBOLAGET
SEPARATOR V. COMMISSIONER, 45 B.T.A. 243, AFFIRMED IN 128 F.2D 739;
B.W. JONES TRUST V. COMMISSIONER, 132 F.2D 914; FAJARDO SUGAR CO. V.
COMMISSIONER, 20 B.T.A. 980; RECHERCHES INDUSTRIELLES V. COMMISSIONER,
45 B.T.A. 253. 
..END :
























ARMOUR & CO. V. WANTOCK, 323 U.S. 126 


NO. 73.  ARGUED OCTOBER 13, 1944.  - DECIDED DECEMBER 4, 1944.  - 140
F.2D 356, AFFIRMED. 


1.  FIREGUARDS EMPLOYED BY A MANUFACTURER OF GOODS FOR INTERSTATE
COMMERCE, HELD COVERED BY THE FAIR LABOR STANDARDS ACT OF 1938, AS
EMPLOYED IN AN "OCCUPATION NECESSARY TO THE PRODUCTION" OF GOODS FOR
INTERSTATE COMMERCE.  P. 129. 

2.  THE CONCLUSION OF BOTH COURTS BELOW THAT, UPON THE FACTS OF THIS
CASE, TIME SPENT ON THE EMPLOYER'S PREMISES BY FIREGUARDS SUBJECT TO
CALL - EXCLUDING TIME SPENT SLEEPING AND EATING, BUT INCLUDING TIME
SPENT IDLING OR IN RECREATION - WAS WORKING TIME COMPENSABLE UNDER THE
MAXIMUM HOURS AND OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT,
SUSTAINED.  P. 132. 

3.  OPINIONS OF THE COURT ARE TO BE READ IN THE LIGHT OF THE FACTS OF
THE CASE.  P. 132. 

ARMOUR & CO. V. WANTOCK ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 322 U.S. 723, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE PLAINTIFFS IN A SUIT UNDER THE FAIR LABOR STANDARDS ACT FOR
OVERTIME, LIQUIDATED DAMAGES, AND ATTORNEY'S FEES. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

ARMOUR AND COMPANY, PETITIONER, HAS BEEN HELD LIABLE TO CERTAIN
EMPLOYEES FOR OVERTIME, LIQUIDATED DAMAGES, AND ATTORNEYS' FEES UNDER
THE FAIR LABOR STANDARDS ACT.  140 F.2D 356.  THE OVERTIME IN QUESTION
IS THAT SPENT ON THE EMPLOYER'S PREMISES AS FIREGUARDS SUBJECT TO CALL,
BUT OTHERWISE PUT TO SUCH PERSONAL USE AS SLEEPING OR RECREATION.  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT ON FACTS OF CONSIDERABLE
SIMILARITY REACHED AN OPPOSITE RESULT, IN SKIDMORE V. SWIFT & CO., 136
F.2D 112, POST, P. 134.  TO RESOLVE THE CONFLICT WE GRANTED CERTIORARI
IN BOTH CASES.  322 U.S. 723. 

ARMOUR AND COMPANY OPERATES A SOAP FACTORY IN CHICAGO WHICH PRODUCES
GOODS FOR INTERSTATE COMMERCE.  IT MAINTAINS A PRIVATE FIRE-FIGHTING
FORCE TO SUPPLEMENT THAT PROVIDED BY THE CITY.  THE RESPONDENTS WERE
EMPLOYED AS FIRE FIGHTERS ONLY, AND OTHERWISE HAD NOTHING TO DO WITH
THE PRODUCTION OF GOODS.  THEY WERE NOT NIGHT WATCHMEN, A SEPARATE
FORCE BEING MAINTAINED FOR THAT PURPOSE.  THEY WERE NOT GIVEN ACCESS TO
THE FACTORY PREMISES AT NIGHT EXCEPT BY CALL OR PERMISSION OF THE
WATCHMEN. 

THESE MEN WORKED IN SHIFTS WHICH BEGAN AT 8:00 A.M., WHEN THEY
PUNCHED A TIME CLOCK.  THE FOLLOWING NINE HOURS, WITH A HALF HOUR OFF
FOR LUNCH, THEY WORKED AT INSPECTING, CLEANING, AND KEEPING IN ORDER
THE COMPANY'S FIRE-FIGHTING APPARATUS, WHICH INCLUDED FIRE ENGINES,
HOSE, PUMPS, WATER BARRELS AND BUCKETS, EXTINGUISHERS, AND A SPRINKLER
SYSTEM.  AT 5:00 P.M. THEY "PUNCHED OUT" ON THE TIME CLOCK.  THEN THEY
REMAINED ON CALL IN THE FIRE HALL, PROVIDED BY THE COMPANY AND LOCATED
ON ITS PROPERTY, UNTIL THE FOLLOWING MORNING AT 8:00.  THEY WENT OFF
DUTY ENTIRELY FOR THE NEXT TWENTY-FOUR HOURS AND THEN RESUMED WORK AS
DESCRIBED. 

DURING THIS NIGHTTIME ON DUTY THEY WERE REQUIRED TO STAY IN THE FIRE
HALL, TO RESPOND TO ANY ALARMS, TO MAKE ANY TEMPORARY REPAIRS OF FIRE
APPARATUS, AND TAKE CARE OF THE SPRINKLER SYSTEM IF DEFECTIVE OR SET
OFF BY MISCHANCE.  THE TIME SPENT IN THESE TASKS WAS RECORDED AND
AMOUNTS ON AVERAGE TO LESS THAN A HALF HOUR A WEEK.  THE EMPLOYER DOES
NOT DENY THAT TIME ACTUALLY SO SPENT SHOULD BE COMPENSATED IN
ACCORDANCE WITH THE ACT. 

THE LITIGATION CONCERNS THE TIME DURING WHICH THESE MEN WERE REQUIRED
TO BE ON THE EMPLOYER'S PREMISES, TO SOME EXTENT AMENABLE TO THE
EMPLOYER'S DISCIPLINE, SUBJECT TO CALL, BUT NOT ENGAGED IN ANY SPECIFIC
WORK.  THE COMPANY PROVIDED COOKING EQUIPMENT, BEDS, RADIOS, AND
FACILITIES FOR CARDS AND AMUSEMENTS WITH WHICH THE MEN SLEPT, ATE, OR
ENTERTAINED THEMSELVES PRETTY MUCH AS THEY CHOSE.  THEY WERE NOT,
HOWEVER, AT LIBERTY TO LEAVE THE PREMISES EXCEPT THAT, BY PERMISSION OF
THE WATCHMAN, THEY MIGHT GO TO A NEARBY RESTAURANT FOR THEIR EVENING
MEAL. 

A SINGLE FIXED WEEKLY WAGE WAS PAID TO THE MEN, REGARDLESS OF THE
VARIATION IN HOURS PER WEEK SPENT ON REGULAR OR ON FIREHOUSE DUTY, THE
SCHEDULE OF SHIFTS OCCASIONING CONSIDERABLE VARIATION IN WEEKLY TIME. 

THIS FIRE-FIGHTING SERVICE WAS NOT MAINTAINED AT THE INSTANCE OF THE
COMPANY'S OFFICIALS IN CHARGE OF PRODUCTION, BUT AT THAT OF ITS
INSURANCE DEPARTMENT.  SEVERAL OTHER PLANTS OF ARMOUR AND THOSE OF
NUMEROUS OTHER MANUFACTURERS IN THE SAME INDUSTRY PRODUCE SIMILAR GOODS
FOR COMMERCE WITHOUT MAINTAINING SUCH A FIRE-FIGHTING SERVICE. 

ON THESE FACTS THE PETITIONER CONTENDS:  FIRST, THAT EMPLOYEES IN
SUCH AUXILIARY FIRE-FIGHTING CAPACITY ARE NOT ENGAGED IN COMMERCE OR IN
PRODUCTION OF GOODS FOR COMMERCE, OR IN ANY OCCUPATION NECESSARY TO
SUCH PRODUCTION WITHIN THE MEANING OF THE ACT; AND, SECOND, THAT EVEN
IF THEY WERE WITHIN THE ACT, TIME SPENT IN SLEEPING, EATING, PLAYING
CARDS, LISTENING TO THE RADIO, OR OTHERWISE AMUSING THEMSELVES, CANNOT
BE COUNTED AS WORKING TIME.  THE EMPLOYEES CONTENDED IN THE DISTRICT
COURT THAT ALL OF SUCH STAND-BY TIME, HOWEVER SPENT, WAS EMPLOYMENT
TIME WITHIN THE ACT, BUT THEY TOOK NO APPEAL FROM THE JUDGMENT IN SO
FAR AS IT WAS ADVERSE TO THEM. 

THE DISTRICT COURT HELD THAT THE EMPLOYEES IN SUCH SERVICE WERE
COVERED BY THE ACT.  BUT IT DECLINED TO GO TO EITHER EXTREME DEMANDED
BY THE PARTIES AS TO WORKING TIME.  USUAL HOURS FOR SLEEP AND FOR
EATING IT RULED WOULD NOT BE COUNTED, BUT THE REMAINING HOURS SHOULD. 
JUDGMENT WAS RENDERED FOR WANTOCK OF $505.67 OVERTIME, THE SAME AMOUNT
IN LIQUIDATED DAMAGES, AND $600 FOR ATTORNEYS' FEES; WHILE SMITH
RECOVERED $943.07 OVERTIME, LIQUIDATED DAMAGES OF EQUAL AMOUNT, AND
ATTORNEYS' FEES OF $650.  THE COURT OF APPEALS AFFIRMED. 

FIRST.  WERE THE EMPLOYEES IN QUESTION COVERED BY THE FAIR LABOR
STANDARDS ACT?  SECTION 7 OF THE ACT, 29 U.S.C. SEC. 207, BY ITS OWN
TERMS APPLIES MAXIMUM HOURS PROVISIONS TO TWO GENERAL CLASSES OF
EMPLOYEES, THOSE WHO ARE ENGAGED IN COMMERCE AND THOSE WHO ARE ENGAGED
IN PRODUCING GOODS FOR COMMERCE.  SECTION 3(J), 29 U.S.C. SEC. 203(J),
ADDS ANOTHER BY THE PROVISION THAT "AN EMPLOYEE SHALL BE DEEMED TO HAVE
BEEN ENGAGED IN THE PRODUCTION OF GOODS IF SUCH EMPLOYEE WAS EMPLOYED
...  IN ANY PROCESS OR OCCUPATION NECESSARY TO THE PRODUCTION" OF GOODS
FOR COMMERCE.  THE COURTS BELOW HELD THAT THE RESPONDENTS WERE INCLUDED
IN THIS CLASS.  THE PETITIONER SEEKS TO LIMIT THOSE ENTITLED TO THIS
CLASSIFICATION BY READING THE WORD "NECESSARY" IN THE HIGHLY
RESTRICTIVE SENSE OF "INDISPENSABLE," "ESSENTIAL," AND "VITAL" - WORDS
IT FINDS IN PREVIOUS PRONOUNCEMENTS OF THIS COURT DEALING WITH THIS
CLAUSE.  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 524-26; OVERSTREET V.
NORTH SHORE CORP., 318 U.S. 125, 129, 130.  THESE AND OTHER CASES, SAYS
PETITIONER, INDICATE THAT IN APPLYING THE ACT A DISTINCTION MUST BE
MADE BETWEEN THOSE PROCESSES OR OCCUPATIONS WHICH AN EMPLOYER FINDS
ADVANTAGEOUS IN HIS OWN PLAN OF PRODUCTION AND THOSE WITHOUT WHICH HE
COULD NOT PRACTICALLY PRODUCE AT ALL.  PRESENT RESPONDENTS, IT
CONTENDS, CLEARLY FALL WITHIN THE FORMER CATEGORY BECAUSE SOAP CAN BE
AND IN MANY OTHER PLANTS IS PRODUCED WITHOUT THE KIND OF FIRE
PROTECTION WHICH THESE EMPLOYEES PROVIDE. 

THE ARGUMENT WOULD GIVE AN UNWARRANTED RIGIDITY TO THE APPLICATION OF
THE WORD "NECESSARY," WHICH HAS ALWAYS BEEN RECOGNIZED AS A WORD TO BE
HARMONIZED WITH ITS CONTEXT.  SEE MCCULLOCH V. MARYLAND, 4 WHEAT.  316,
413, 414.  NO HARD AND FAST RULE WILL TELL US WHAT CAN BE DISPENSED
WITH IN "THE PRODUCTION OF GOODS."  ALL DEPENDS UPON THE DETAIL WITH
WHICH THAT BARE PHRASE IS CLOTHED.  IN THE LAW OF INFANTS' LIABILITY,
WHAT ARE "NECESSARIES" MAY WELL VARY WITH THE ENVIRONMENT TO WHICH THE
INFANT IS EXPOSED:  CLIMATE AND STATION IN LIFE AND MANY OTHER
FACTORS.  SO, TOO, NO HARD AND FAST RULE MAY BE TRANSPOSED FROM ONE
INDUSTRY TO ANOTHER TO SAY WHAT IS NECESSARY IN "THE PRODUCTION OF
GOODS."  WHAT IS PRACTICALLY NECESSARY TO IT WILL DEPEND ON ITS
ENVIRONMENT AND POSITION.  A PLANT MAY BE SO BUILT AS TO BE AN
EXCEPTIONAL FIRE HAZARD, OR IT MAY BE MENACED BY NEIGHBORHOOD.  IT MAY
BE FARTHER FROM PUBLIC FIRE PROTECTION, OR ITS USE OF INFLAMMABLE
MATERIALS MAY MAKE INSTANTANEOUS RESPONSE TO FIRE ALARM OF PECULIAR
IMPORTANCE TO IT. "WHATEVER TERMINOLOGY IS USED, THE CRITERION IS
NECESSARILY ONE OF DEGREE AND MUST BE SO DEFINED."  SANTA CRUZ CO. V.
LABOR BOARD, 303 U.S. 453, 467; KIRSCHBAUM CO. V. WALLING, 316 U.S.
517, 526.  IN THEIR CONTEXT, THE RESTRICTIVE WORDS LIKE
"INDISPENSABLE," WHICH PETITIONER QUOTES, DO NOT HAVE THE AUTOMATIC
SIGNIFICANCE PETITIONER SEEKS TO GIVE THEM.  WHAT IS REQUIRED IS A
PRACTICAL JUDGMENT AS TO WHETHER THE PARTICULAR EMPLOYER ACTUALLY
OPERATES THE WORK AS PART OF AN INTEGRATED EFFORT FOR THE PRODUCTION OF
GOODS. 

THE FACT THAT RESPONDENTS WERE HIRED BY AN EMPLOYER WHICH SHOWS NO
OSTENSIBLE PURPOSE FOR BEING IN BUSINESS EXCEPT TO PRODUCE GOODS FOR
COMMERCE IS NOT WITHOUT WEIGHT, EVEN THOUGH WE RECOGNIZED IN KIRSCHBAUM
CO. V. WALLING THAT IT MIGHT NOT ALWAYS BE DECISIVE (316 U.S. AT 525). 
A COURT WOULD NOT READILY ASSUME THAT A CORPORATION'S MANAGEMENT WAS
SPENDING STOCKHOLDERS' MONEY ON A MERE HOBBY OR AN EXTRAVAGANCE.  THE
COMPANY DOES NOT PROVE OR ASSERT THAT THIS FIRE PROTECTION IS SO
UNRELATED TO ITS BUSINESS OF PRODUCTION THAT IT DOES NOT FOR INCOME-TAX
PURPOSES DEDUCT THE WAGES OF THESE EMPLOYEES FROM GROSS INCOME AS
"ORDINARY AND NECESSARY EXPENSES" (INT. REV. CODE SEC. 23(A)(1)).  THE
RECORD SHOWS THAT THIS DEPARTMENT NOT ONLY HELPS TO SAFEGUARD THE
CONTINUITY OF PRODUCTION AGAINST INTERRUPTION BY FIRE BUT SERVES A
FISCAL PURPOSE AS WELL.  WITHOUT THE DEPARTMENT, INSURANCE COULD NOT BE
OBTAINED AT ANY PRICE EXCEPT BY EMPLOYING ENOUGH WATCHMEN TO MAKE
HOURLY ROUNDS; WITH IT, ONLY ENOUGH WATCHMEN FOR ROUNDS EVERY TWO HOURS
ARE NEEDED.  THIS SAVES TWELVE WATCHMEN, OR ABOUT $17,600 A YEAR, AND
REDUCES INSURANCE PREMIUMS BY $1,200 A YEAR.  WHAT THE NET SAVINGS ARE
HAS NOT BEEN STIPULATED, BUT IT IS CLEAR THAT THIS SO-CALLED "DE LUXE"
SERVICE IS MAINTAINED BECAUSE IT IS GOOD BUSINESS TO DO SO.  MORE IS
NECESSARY TO A SUCCESSFUL ENTERPRISE THAN THAT IT BE PHYSICALLY ABLE TO
PRODUCE GOODS FOR COMMERCE.  IT ALSO AIMS TO PRODUCE THEM AT A PRICE AT
WHICH IT CAN MAINTAIN ITS COMPETITIVE PLACE, AND AN OCCUPATION IS NOT
TO BE EXCLUDED FROM THE ACT MERELY BECAUSE IT CONTRIBUTES TO ECONOMY OR
TO CONTINUITY OF PRODUCTION RATHER THAN TO VOLUME OF PRODUCTION. 

IF SOME OF THE PHRASES QUOTED FROM PREVIOUS DECISIONS DESCRIBE A
HIGHER DEGREE OF ESSENTIALITY THAN THESE RESPONDENTS CAN SHOW, IT MUST
BE OBSERVED THAT THEY WERE ALL UTTERED IN CASES IN WHICH THE EMPLOYEES
WERE HELD TO BE WITHIN THE ACT.  A HOLDING THAT A PROCESS OR OCCUPATION
DESCRIBED AS "INDISPENSABLE" OR "VITAL" IS ONE "NECESSARY" WITHIN THE
ACT CANNOT BE READ AS AN AUTHORITY THAT ALL WHICH CANNOT BE SO
DESCRIBED ARE OUT OF IT.  MCLEOD V. THRELKELD, 319 U.S. 491, WHICH DID
EXCLUDE THE EMPLOYEE FROM THE SCOPE OF THE ACT, IS NOT IN POINT HERE
BECAUSE IT INVOLVED APPLICATION OF THE OTHER CLAUSE OF THE ACT,
COVERING EMPLOYEES ENGAGED "IN COMMERCE," AND THE TEST OF WHETHER ONE
IS IN COMMERCE IS OBVIOUSLY MORE EXACTING THAN THE TEST OF WHETHER HIS
OCCUPATION IS NECESSARY TO PRODUCTION FOR COMMERCE. 

BUT WE THINK THE PREVIOUS CASES INDICATE CLEARLY THAT RESPONDENTS ARE
WITHIN THE ACT.  KIRSCHBAUM CO. V. WALLING, SUPRA, HELD THAT WATCHMEN,
AS WELL AS ENGINEERS, FIREMEN, CARPENTERS AND OTHERS, WERE COVERED,
BECAUSE THEY CONTRIBUTED TO "THE MAINTENANCE OF A SAFE, HABITABLE
BUILDING" WHICH WAS, IN TURN, NECESSARY FOR THE PRODUCTION OF GOODS. 
AGAIN, IN WALTON V. SOUTHERN PACKAGE CORP., 320 U.S. 540, THE
"NECESSARY FOR PRODUCTION" CLAUSE WAS HELD TO COVER A NIGHT WATCHMAN
FOR A MANUFACTURING COMPANY, AND WE POINTED TO THE REDUCTION OF FIRE
INSURANCE PREMIUMS AS EVIDENCE THAT A WATCHMAN "WOULD MAKE A VALUABLE
CONTRIBUTION TO THE CONTINUOUS PRODUCTION OF RESPONDENT'S GOODS."  THE
FUNCTION OF THESE EMPLOYEES IS NOT SIGNIFICANTLY DIFFERENT. 

THE COURTS BELOW DID NOT ERR IN HOLDING THAT RESPONDENTS WERE
EMPLOYED IN AN OCCUPATION REASONABLY NECESSARY TO PRODUCTION AS CARRIED
ON BY THE EMPLOYER AND HENCE WERE COVERED BY THE ACT. 

SECOND.  WAS IT ERROR TO COUNT TIME SPENT IN PLAYING CARDS AND OTHER
AMUSEMENTS, OR IN IDLENESS, AS WORKING TIME? 

THE OVERTIME PROVISIONS OF THE ACT, SEC. 7, 52 STAT. 1063, 29 U.S.C.
SEC. 207, APPLY ONLY TO THOSE WHO ARE "EMPLOYEES" AND TO "EMPLOYMENT"
IN EXCESS OF THE SPECIFIED HOURS; SEC. 3(G), 29 U.S.C. SEC. 203(G),
PROVIDES THAT "'EMPLOY' INCLUDES TO SUFFER OR PERMIT TO WORK." 

HERE, TOO, THE EMPLOYER INTERPRETS FORMER OPINIONS OF THE COURT AS
LIMITATIONS ON THE ACT.  IT CITES STATEMENTS THAT THE CONGRESSIONAL
INTENT WAS "TO GUARANTEE EITHER REGULAR OR OVERTIME COMPENSATION FOR
ALL ACTUAL WORK OR EMPLOYMENT" AND THAT "CONGRESS HERE WAS REFERRING TO
WORK OR EMPLOYMENT  ...  AS THOSE WORDS ARE COMMONLY USED - AS MEANING
PHYSICAL OR MENTAL EXERTION (WHETHER BURDENSOME OR NOT) CONTROLLED OR
REQUIRED BY THE EMPLOYER AND PURSUED NECESSARILY AND PRIMARILY FOR THE
BENEFIT OF THE EMPLOYER AND HIS BUSINESS".  TENNESSEE COAL, IRON & R.
CO. V. MUSCODA LOCAL, 321 U.S. 590, 597, 598.  IT IS TIMELY AGAIN TO
REMIND COUNSEL THAT WORDS OF OUR OPINIONS ARE TO BE READ IN THE LIGHT
OF THE FACTS OF THE CASE UNDER DISCUSSION.  TO KEEP OPINIONS WITHIN
REASONABLE BOUNDS PRECLUDES WRITING INTO THEM EVERY LIMITATION OR
VARIATION WHICH MIGHT BE SUGGESTED BY THE CIRCUMSTANCES OF CASES NOT
BEFORE THE COURT.  GENERAL EXPRESSIONS TRANSPOSED TO OTHER FACTS ARE
OFTEN MISLEADING.  THE CONTEXT OF THE LANGUAGE CITED FROM THE TENNESSEE
COAL CASE SHOULD BE SUFFICIENT TO INDICATE THAT THE QUOTED PHRASES WERE
NOT INTENDED AS A LIMITATION ON THE ACT, AND HAVE NO NECESSARY
APPLICATION TO OTHER STATES OF FACTS. 

OF COURSE AN EMPLOYER, IF HE CHOOSES, MAY HIRE A MAN TO DO NOTHING,
OR TO DO NOTHING BUT WAIT FOR SOMETHING TO HAPPEN.  REFRAINING FROM
OTHER ACTIVITY OFTEN IS A FACTOR OF INSTANT READINESS TO SERVE, AND
IDLENESS PLAYS A PART IN ALL EMPLOYMENTS IN A STAND-BY CAPACITY. 
READINESS TO SERVE MAY BE HIRED, QUITE AS MUCH AS SERVICE ITSELF, AND
TIME SPENT LYING IN WAIT FOR THREATS TO THE SAFETY OF THE EMPLOYER'S
PROPERTY MAY BE TREATED BY THE PARTIES AS A BENEFIT TO THE EMPLOYER. 
WHETHER TIME IS SPENT PREDOMINANTLY FOR THE EMPLOYER'S BENEFIT OR FOR
THE EMPLOYEE'S IS A QUESTION DEPENDENT UPON ALL THE CIRCUMSTANCES OF
THE CASE.    THAT INACTIVE DUTY MAY BE DUTY NONETHELESS IS NOT A NEW
PRINCIPLE INVENTED FOR APPLICATION TO THIS ACT.  IN MISSOURI, K. & T.R.
CO. V. UNITED STATES, 231 U.S. 112, 119, THE COURT HELD THAT INACTIVE
TIME WAS TO BE COUNTED IN APPLYING A FEDERAL ACT PROHIBITING THE
KEEPING OF EMPLOYEES ON DUTY FOR MORE THAN SIXTEEN CONSECUTIVE HOURS. 
REFERRING TO CERTAIN DELAYS, THIS COURT SAID, "IN THE MEANTIME THE MEN
WERE WAITING, DOING NOTHING.  IT IS ARGUED THAT THEY WERE NOT ON DUTY
DURING THIS PERIOD AND THAT IF IT BE DEDUCTED, THEY WERE NOT KEPT MORE
THAN SIXTEEN HOURS.  BUT THEY WERE UNDER ORDERS, LIABLE TO BE CALLED
UPON AT ANY MOMENT, AND NOT AT LIBERTY TO GO AWAY.  THEY WERE NONE THE
LESS ON DUTY WHEN INACTIVE.  THEIR DUTY WAS TO STAND AND WAIT." 

WE THINK THE LABOR STANDARDS ACT DOES NOT EXCLUDE AS WORKING TIME
PERIODS CONTRACTED FOR AND SPENT ON DUTY IN THE CIRCUMSTANCES DISCLOSED
HERE, MERELY BECAUSE THE NATURE OF THE DUTY LEFT TIME HANGING HEAVY ON
THE EMPLOYEES' HANDS AND BECAUSE THE EMPLOYER AND EMPLOYEE COOPERATED
IN TRYING TO MAKE THE CONFINEMENT AND IDLENESS INCIDENT TO IT MORE
TOLERABLE.  CERTAINLY THEY WERE COMPETENT TO AGREE, EXPRESSLY OR BY
IMPLICATION, THAT AN EMPLOYEE COULD RESORT TO AMUSEMENTS PROVIDED BY
THE EMPLOYER WITHOUT A VIOLATION OF HIS AGREEMENT OR A DEPARTURE FROM
HIS DUTY.  BOTH COURTS BELOW HAVING CONCURRED IN FINDING THAT UNDER THE
CIRCUMSTANCES AND THE ARRANGEMENTS BETWEEN THE PARTIES THE TIME SO
SPENT WAS WORKING TIME, WE THEREFORE AFFIRM.  AFFIRMED. 
..END :
























SKIDMORE V. SWIFT & CO., 323 U.S. 134 


NO. 12.  ARGUED OCTOBER 13, 1944.  - DECIDED DECEMBER 4, 1944.  - 136
F.2D 112, REVERSED. 


1.  NO PRINCIPLE OF LAW PRECLUDED A DETERMINATION THAT WAITING TIME
WAS WORKING TIME UNDER THE FAIR LABOR STANDARDS ACT.  ARMOUR & CO. V.
WANTOCK, ANTE, P. 126.  P. 136. 

2.  WHETHER TIME SPENT ON THE EMPLOYER'S PREMISES (OR IN HAILING
DISTANCE) BY FIREGUARDS SUBJECT TO CALL WAS WORKING TIME UNDER THE FAIR
LABOR STANDARDS ACT IS A QUESTION OF FACT TO BE RESOLVED BY APPROPRIATE
FINDINGS OF THE TRIAL COURT.  P. 136. 

3.  ALTHOUGH THE RULINGS, INTERPRETATIONS AND OPINIONS OF THE
ADMINISTRATOR UNDER THE FAIR LABOR STANDARDS ACT DO NOT CONTROL
JUDICIAL DECISION, THEY DO CONSTITUTE A BODY OF EXPERIENCE AND INFORMED
JUDGMENT TO WHICH COURTS AND LITIGANTS MAY PROPERLY RESORT FOR
GUIDANCE.  P. 140. 

SKIDMORE ET AL. V. SWIFT & CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 322 U.S. 723, TO REVIEW THE AFFIRMANCE OF A JUDGMENT, 53
F.SUPP.  1020, DENYING RECOVERY IN A SUIT UNDER THE FAIR LABOR
STANDARDS ACT FOR OVERTIME, LIQUIDATED DAMAGES, AND ATTORNEY'S FEES. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

SEVEN EMPLOYEES OF THE SWIFT AND COMPANY PACKING PLANT AT FORT WORTH,
TEXAS, BROUGHT AN ACTION UNDER THE FAIR LABOR STANDARDS ACT TO RECOVER
OVERTIME, LIQUIDATED DAMAGES, AND ATTORNEYS' FEES, TOTALLING
APPROXIMATELY $77,000.  THE DISTRICT COURT RENDERED JUDGMENT DENYING
THIS CLAIM WHOLLY, 53 F.SUPP.  1020, AND THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT AFFIRMED.  136 F.2D 112. 

IT IS NOT DENIED THAT THE DAYTIME EMPLOYMENT OF THESE PERSONS WAS
WORKING TIME WITHIN THE ACT.  TWO WERE ENGAGED IN GENERAL FIRE-HALL
DUTIES AND MAINTENANCE OF FIRE-FIGHTING EQUIPMENT OF THE SWIFT PLANT. 
THE OTHERS OPERATED ELEVATORS OR ACTED AS RELIEF MEN IN FIRE DUTIES. 
THEY WORKED FROM 7:00 A.M. TO 3:30 P.M., WITH A HALF-HOUR LUNCH PERIOD,
FIVE DAYS A WEEK.  THEY WERE PAID WEEKLY SALARIES. 

UNDER THEIR ORAL AGREEMENT OF EMPLOYMENT, HOWEVER, PETITIONERS
UNDERTOOK TO STAY IN THE FIRE HALL ON THE COMPANY PREMISES, OR WITHIN
HAILING DISTANCE, THREE AND A HALF TO FOUR NIGHTS A WEEK.  THIS
INVOLVED NO TASK EXCEPT TO ANSWER ALARMS, EITHER BECAUSE OF FIRE OR
BECAUSE THE SPRINKLER WAS SET OFF FOR SOME OTHER REASON.  NO FIRES
OCCURRED DURING THE PERIOD IN ISSUE, THE ALARMS WERE RARE, AND THE TIME
REQUIRED FOR THEIR ANSWER RARELY EXCEEDED AN HOUR.  FOR EACH ALARM
ANSWERED THE EMPLOYEES WERE PAID IN ADDITION TO THEIR FIXED
COMPENSATION AN AGREED AMOUNT, FIFTY CENTS AT FIRST, AND LATER SIXTY
FOUR CENTS.  THE COMPANY PROVIDED A BRICK FIRE HALL EQUIPPED WITH STEAM
HEAT AND AIR-CONDITIONED ROOMS.  IT PROVIDED SLEEPING QUARTERS, A POOL
TABLE, A DOMINO TABLE, AND A RADIO.  THE MEN USED THEIR TIME IN SLEEP
OR AMUSEMENT AS THEY SAW FIT, EXCEPT THAT THEY WERE REQUIRED TO STAY IN
OR CLOSE BY THE FIRE HALL AND BE READY TO RESPOND TO ALARMS.  IT IS
STIPULATED THAT "THEY AGREED TO REMAIN IN THE FIRE HALL AND STAY IN IT
OR WITHIN HAILING DISTANCE, SUBJECT TO CALL, IN EVENT OF FIRE OR OTHER
CASUALTY, BUT WERE NOT REQUIRED TO PERFORM ANY SPECIFIC TASKS DURING
THESE PERIODS OF TIME, EXCEPT IN ANSWERING ALARMS."  THE TRIAL COURT
FOUND THE EVIDENTIARY FACTS AS STIPULATED; IT MADE NO FINDINGS OF FACT
AS SUCH AS TO WHETHER UNDER THE ARRANGEMENT OF THE PARTIES AND THE
CIRCUMSTANCES OF THIS CASE, WHICH IN SOME RESPECTS DIFFER FROM THOSE OF
THE ARMOUR CASE (ANTE, P. 126), THE FIRE-HALL DUTY OR ANY PART THEREOF
CONSTITUTED WORKING TIME.  IT SAID, HOWEVER, AS A "CONCLUSION OF LAW"
THAT "THE TIME PLAINTIFFS SPENT IN THE FIRE HALL SUBJECT TO CALL TO
ANSWER FIRE ALARMS DOES NOT CONSTITUTE HOURS WORKED, FOR WHICH OVERTIME
COMPENSATION IS DUE THEM UNDER THE FAIR LABOR STANDARDS ACT, AS
INTERPRETED BY THE ADMINISTRATOR AND THE COURTS," AND IN ITS OPINION
OBSERVED, "OF COURSE WE KNOW PURSUING SUCH PLEASURABLE OCCUPATIONS OR
PERFORMING SUCH PERSONAL CHORES, DOES NOT CONSTITUTE WORK."  THE
CIRCUIT COURT OF APPEALS AFFIRMED. 

FOR REASONS SET FORTH IN THE ARMOUR CASE DECIDED HEREWITH WE HOLD
THAT NO PRINCIPLE OF LAW FOUND EITHER IN THE STATUTE OR IN COURT
DECISIONS PRECLUDES WAITING TIME FROM ALSO BEING WORKING TIME.  WE HAVE
NOT ATTEMPTED TO, AND WE CANNOT, LAY DOWN A LEGAL FORMULA TO RESOLVE
CASES SO VARIED IN THEIR FACTS AS ARE THE MANY SITUATIONS IN WHICH
EMPLOYMENT INVOLVES WAITING TIME.  WHETHER IN A CONCRETE CASE SUCH TIME
FALLS WITHIN OR WITHOUT THE ACT IS A QUESTION OF FACT TO BE RESOLVED BY
APPROPRIATE FINDINGS OF THE TRIAL COURT.  WALLING V. JACKSONVILLE PAPER
CO., 317 U.S. 564, 572.  THIS INVOLVES SCRUTINY AND CONSTRUCTION OF THE
AGREEMENTS BETWEEN THE PARTICULAR PARTIES, APPRAISAL OF THEIR PRACTICAL
CONSTRUCTION OF THE WORKING AGREEMENT BY CONDUCT, CONSIDERATION OF THE
NATURE OF THE SERVICE, AND ITS RELATION TO THE WAITING TIME, AND ALL OF
THE SURROUNDING CIRCUMSTANCES.  FACTS MAY SHOW THAT THE EMPLOYEE WAS
ENGAGED TO WAIT, OR THEY MAY SHOW THAT HE WAITED TO BE ENGAGED.  HIS
COMPENSATION MAY COVER BOTH WAITING AND TASK, OR ONLY PERFORMANCE OF
THE TASK ITSELF.  LIVING QUARTERS MAY IN SOME SITUATIONS BE FURNISHED
AS A FACILITY OF THE TASK AND IN ANOTHER AS A PART OF ITS
COMPENSATION.  THE LAW DOES NOT IMPOSE AN ARRANGEMENT UPON THE
PARTIES.  IT IMPOSES UPON THE COURTS THE TASK OF FINDING WHAT THE
ARRANGEMENT WAS. 

WE DO NOT MINIMIZE THE DIFFICULTY OF SUCH AN INQUIRY WHERE THE
ARRANGEMENTS OF THE PARTIES HAVE NOT CONTEMPLATED THE PROBLEM POSED BY
THE STATUTE.  BUT IT DOES NOT DIFFER IN NATURE OR IN THE STANDARDS TO
GUIDE JUDGMENT FROM THAT WHICH FREQUENTLY CONFRONTS COURTS WHERE THEY
MUST FIND RETROSPECTIVELY THE EFFECT OF CONTRACTS AS TO MATTERS WHICH
THE PARTIES FAILED TO ANTICIPATE OR EXPLICITLY TO PROVIDE FOR. 

CONGRESS DID NOT UTILIZE THE SERVICES OF AN ADMINISTRATIVE AGENCY TO
FIND FACTS AND TO DETERMINE IN THE FIRST INSTANCE WHETHER PARTICULAR
CASES FALL WITHIN OR WITHOUT THE ACT.  INSTEAD, IT PUT THIS
RESPONSIBILITY ON THE COURTS.  KIRSCHBAUM CO. V. WALLING, 316 U.S. 517,
523.  BUT IT DID CREATE THE OFFICE OF ADMINISTRATOR, IMPOSE UPON HIM A
VARIETY OF DUTIES, ENDOW HIM WITH POWERS TO INFORM HIMSELF OF
CONDITIONS IN INDUSTRIES AND EMPLOYMENTS SUBJECT TO THE ACT, AND PUT ON
HIM THE DUTIES OF BRINGING INJUNCTION ACTIONS TO RESTRAIN VIOLATIONS. 
PURSUIT OF HIS DUTIES HAS ACCUMULATED A CONSIDERABLE EXPERIENCE IN THE
PROBLEMS OF ASCERTAINING WORKING TIME IN EMPLOYMENTS INVOLVING PERIODS
OF INACTIVITY AND A KNOWLEDGE OF THE CUSTOMS PREVAILING IN REFERENCE TO
THEIR SOLUTION.  FROM THESE HE IS OBLIGED TO REACH CONCLUSIONS AS TO
CONDUCT WITHOUT THE LAW, SO THAT HE SHOULD SEEK INJUNCTIONS TO STOP IT,
AND THAT WITHIN THE LAW, SO THAT HE HAS NO CALL TO INTERFERE.  HE HAS
SET FORTH HIS VIEWS OF THE APPLICATION OF THE ACT UNDER DIFFERENT
CIRCUMSTANCES IN AN INTERPRETATIVE BULLETIN AND IN INFORMAL RULINGS. 
THEY PROVIDE A PRACTICAL GUIDE TO EMPLOYERS AND EMPLOYEES AS TO HOW THE
OFFICE REPRESENTING THE PUBLIC INTEREST IN ITS ENFORCEMENT WILL SEEK TO
APPLY IT.  WAGE AND HOUR DIVISION, INTERPRETATIVE BULLETIN NO. 13. 

THE ADMINISTRATOR THINKS THE PROBLEMS PRESENTED BY INACTIVE DUTY
REQUIRE A FLEXIBLE SOLUTION, RATHER THAN THE ALL-IN OR ALL-OUT RULES
RESPECTIVELY URGED BY THE PARTIES IN THIS CASE, AND HIS BULLETIN
ENDEAVORS TO SUGGEST STANDARDS AND EXAMPLES TO GUIDE IN PARTICULAR
SITUATIONS.  IN SOME OCCUPATIONS, IT SAYS, PERIODS OF INACTIVITY ARE
NOT PROPERLY COUNTED AS WORKING TIME EVEN THOUGH THE EMPLOYEE IS
SUBJECT TO CALL.  EXAMPLES ARE AN OPERATOR OF A SMALL TELEPHONE
EXCHANGE WHERE THE SWITCHBOARD IS IN HER HOME AND SHE ORDINARILY GETS
SEVERAL HOURS OF UNINTERRUPTED SLEEP EACH NIGHT; OR A PUMPER OF A
STRIPPER WELL OR WATCHMAN OF A LUMBER CAMP DURING THE OFF SEASON, WHO
MAY BE ON DUTY TWENTY-FOUR HOURS A DAY BUT ORDINARILY "HAS A NORMAL
NIGHT'S SLEEP, HAS AMPLE TIME IN WHICH TO EAT HIS MEALS, AND HAS A
CERTAIN AMOUNT OF TIME FOR RELAXATION AND ENTIRELY PRIVATE PURSUITS." 
EXCLUSION OF ALL SUCH HOURS THE ADMINISTRATOR THINKS MAY BE JUSTIFIED. 
IN GENERAL, THE ANSWER DEPENDS "UPON THE DEGREE TO WHICH THE EMPLOYEE
IS FREE TO ENGAGE IN PERSONAL ACTIVITIES DURING PERIODS OF IDLENESS
WHEN HE IS SUBJECT TO CALL AND THE NUMBER OF CONSECUTIVE HOURS THAT THE
EMPLOYEE IS SUBJECT TO CALL WITHOUT BEING REQUIRED TO PERFORM ACTIVE
WORK."  "HOURS WORKED ARE NOT LIMITED TO THE TIME SPENT IN ACTIVE LABOR
BUT INCLUDE TIME GIVEN BY THE EMPLOYEE TO THE EMPLOYER...." 

THE FACTS OF THIS CASE DO NOT FALL WITHIN ANY OF THE SPECIFIC
EXAMPLES GIVEN, BUT THE CONCLUSION OF THE ADMINISTRATOR, AS EXPRESSED
IN THE BRIEF AMICUS CURIAE, IS THAT THE GENERAL TESTS WHICH HE HAS
SUGGESTED POINT TO THE EXCLUSION OF SLEEPING AND EATING TIME OF THESE
EMPLOYEES FROM THE WORKWEEK AND THE INCLUSION OF ALL OTHER ON-CALL
TIME:  ALTHOUGH THE EMPLOYEES WERE REQUIRED TO REMAIN ON THE PREMISES
DURING THE ENTIRE TIME, THE EVIDENCE SHOWS THAT THEY WERE VERY RARELY
INTERRUPTED IN THEIR NORMAL SLEEPING AND EATING TIME, AND THESE ARE
PURSUITS OF A PURELY PRIVATE NATURE WHICH WOULD PRESUMABLY OCCUPY THE
EMPLOYEES' TIME WHETHER THEY WERE ON DUTY OR NOT AND WHICH APPARENTLY
COULD BE PURSUED ADEQUATELY AND COMFORTABLY IN THE REQUIRED
CIRCUMSTANCES; THE REST OF THE TIME IS DIFFERENT BECAUSE THERE IS
NOTHING IN THE RECORD TO SUGGEST THAT, EVEN THOUGH PLEASURABLY SPENT,
IT WAS SPENT IN THE WAYS THE MEN WOULD HAVE CHOSEN HAD THEY BEEN FREE
TO DO SO. 

THERE IS NO STATUTORY PROVISION AS TO WHAT, IF ANY, DEFERENCE COURTS
SHOULD PAY TO THE ADMINISTRATOR'S CONCLUSIONS.  AND, WHILE WE HAVE
GIVEN THEM NOTICE, WE HAVE HAD NO OCCASION TO TRY TO PRESCRIBE THEIR
INFLUENCE.  THE RULINGS OF THIS ADMINISTRATOR ARE NOT REACHED AS A
RESULT OF HEARING ADVERSARY PROCEEDINGS IN WHICH HE FINDS FACTS FROM
EVIDENCE AND REACHES CONCLUSIONS OF LAW FROM FINDINGS OF FACT.  THEY
ARE NOT, OF COURSE, CONCLUSIVE, EVEN IN THE CASES WITH WHICH THEY
DIRECTLY DEAL, MUCH LESS IN THOSE TO WHICH THEY APPLY ONLY BY ANALOGY. 
THEY DO NOT CONSTITUTE AN INTERPRETATION OF THE ACT OR A STANDARD FOR
JUDGING FACTUAL SITUATIONS WHICH BINDS A DISTRICT COURT'S PROCESSES, AS
AN AUTHORITATIVE PRONOUNCEMENT OF A HIGHER COURT MIGHT DO.  BUT THE
ADMINISTRATOR'S POLICIES ARE MADE IN PURSUANCE OF OFFICIAL DUTY, BASED
UPON MORE SPECIALIZED EXPERIENCE AND BROADER INVESTIGATIONS AND
INFORMATION THAN IS LIKELY TO COME TO A JUDGE IN A PARTICULAR CASE. 
THEY DO DETERMINE THE POLICY WHICH WILL GUIDE APPLICATIONS FOR
ENFORCEMENT BY INJUNCTION ON BEHALF OF THE GOVERNMENT.  GOOD
ADMINISTRATION OF THE ACT AND GOOD JUDICIAL ADMINISTRATION ALIKE
REQUIRE THAT THE STANDARDS OF PUBLIC ENFORCEMENT AND THOSE FOR
DETERMINING PRIVATE RIGHTS SHALL BE AT VARIANCE ONLY WHERE JUSTIFIED BY
VERY GOOD REASONS.  THE FACT THAT THE ADMINISTRATOR'S POLICIES AND
STANDARDS ARE NOT REACHED BY TRIAL IN ADVERSARY FORM DOES NOT MEAN THAT
THEY ARE NOT ENTITLED TO RESPECT.  THIS COURT HAS LONG GIVEN
CONSIDERABLE AND IN SOME CASES DECISIVE WEIGHT TO TREASURY DECISIONS
AND TO INTERPRETATIVE REGULATIONS OF THE TREASURY AND OF OTHER BODIES
THAT WERE NOT OF ADVERSARY ORIGIN. 

WE CONSIDER THAT THE RULINGS, INTERPRETATIONS AND OPINIONS OF THE
ADMINISTRATOR UNDER THIS ACT, WHILE NOT CONTROLLING UPON THE COURTS BY
REASON OF THEIR AUTHORITY, DO CONSTITUTE A BODY OF EXPERIENCE AND
INFORMED JUDGMENT TO WHICH COURTS AND LITIGANTS MAY PROPERLY RESORT FOR
GUIDANCE.  THE WEIGHT OF SUCH A JUDGMENT IN A PARTICULAR CASE WILL
DEPEND UPON THE THOROUGHNESS EVIDENT IN ITS CONSIDERATION, THE VALIDITY
OF ITS REASONING, ITS CONSISTENCY WITH EARLIER AND LATER
PRONOUNCEMENTS, AND ALL THOSE FACTORS WHICH GIVE IT POWER TO PERSUADE,
IF LACKING POWER TO CONTROL. 

THE COURTS IN THE ARMOUR CASE WEIGHED THE EVIDENCE IN THE PARTICULAR
CASE IN THE LIGHT OF THE ADMINISTRATOR'S RULINGS AND REACHED A RESULT
CONSISTENT THEREWITH.  THE EVIDENCE IN THIS CASE IN SOME RESPECTS, SUCH
AS THE UNDERSTANDING AS TO SEPARATE COMPENSATION FOR ANSWERING ALARMS,
IS DIFFERENT.  EACH CASE MUST STAND ON ITS OWN FACTS.  BUT IN THIS
CASE, ALTHOUGH THE DISTRICT COURT REFERRED TO THE ADMINISTRATOR'S
BULLETIN, ITS EVALUATION AND INQUIRY WERE APPARENTLY RESTRICTED BY ITS
NOTION THAT WAITING TIME MAY NOT BE WORK, AN UNDERSTANDING OF THE LAW
WHICH WE HOLD TO BE ERRONEOUS.  ACCORDINGLY, THE JUDGMENT IS REVERSED
AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH. 
REVERSED. 
..END :




















CLARIDGE APARTMENTS CO. V. COMM'R, 323 U.S. 141 


NOS. 28 AND 29.  ARGUED OCTOBER 19, 20, 1944.  - DECIDED DECEMBER 4,
1944.  - 138 F.2D 962, REVERSED. 


1.  WHETHER, BY VIRTUE OF SEC. 276C(3) OF THE BANKRUPTCY ACT, SEC. 270
WAS APPLICABLE TO A PROCEEDING UNDER SEC. 77B IN WHICH A FINAL DECREE
HAD BEEN ENTERED PRIOR TO THE EFFECTIVE DATE OF THE CHANDLER ACT IS A
QUESTION OF LAW IN RESPECT OF WHICH THE DOCTRINE OF DOBSON V.
COMMISSIONER, 320 U.S. 489, IS INAPPLICABLE AND THE DETERMINATION OF
THE TAX COURT IS NOT FINAL.  P. 145. 

2.  SECTION 270 OF THE BANKRUPTCY ACT, AS AMENDED, REQUIRING THAT FOR
INCOME TAX PURPOSES THE BASIS OF THE DEBTOR'S PROPERTY BE DECREASED IN
THE AMOUNT BY WHICH THE INDEBTEDNESS OF THE DEBTOR HAS BEEN CANCELED OR
REDUCED IN A CHAPTER X PROCEEDING, HELD NOT MADE APPLICABLE, BY SEC.
276C(3), TO A SEC. 77B PROCEEDING IN WHICH A FINAL DECREE HAD BEEN
ENTERED PRIOR TO THE EFFECTIVE DATE OF THE CHANDLER ACT.  P. 159. 

3.  RETROACTIVE APPLICATION OF A STATUTE IS NOT FAVORED.  P. 164. 

4.  THE FINDINGS OF THE TAX COURT IN THIS CASE AS TO THE ORIGINAL
COST OF THE PROPERTY AND THE PROPRIETY OF DEDUCTIONS OF CERTAIN
EXPENSES WERE WITHIN THE PRINCIPLE OF THE DOBSON CASE.  P. 165. 

CLARIDGE APARTMENTS CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 321 U.S. 759, TO REVIEW THE REVERSAL OF A DECISION OF THE
TAX COURT, 1 T.C. 163, SETTING ASIDE, IN PART, DEFICIENCY ASSESSMENTS
OF INCOME AND EXCESS PROFITS TAXES. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE ISSUES ARISE OUT OF DEFICIENCY ASSESSMENTS MADE IN RESPECT TO
PETITIONER'S FEDERAL INCOME AND EXCESS PROFITS TAXES FOR THE YEARS 1935
TO 1938 INCLUSIVE.  THEY INVOLVE THE APPLICABILITY OF SEC. 270 OF THE
BANKRUPTCY ACT, AS AMENDED,  FN1  SO AS TO REQUIRE REDUCTION OF
DEPRECIATION ALLOWANCES CLAIMED. 

THE TRANSACTIONS AROSE IN CONNECTION WITH A REORGANIZATION PROCEEDING
UNDER SEC. 77B, 48 STAT. 912.  THEY CONSISTED ESSENTIALLY OF
PETITIONER'S ACQUISITION OF ALL THE ASSETS OF THE INSOLVENT DEBTOR
CORPORATION, BY AN EXCHANGE OF ITS CAPITAL STOCK WITHOUT PAR VALUE FOR
THE LATTER'S BONDS THEN OUTSTANDING.  THE COMMISSIONER CONTENDS THAT
THE EXCHANGE RESULTED IN A CANCELLATION OR REDUCTION OF INDEBTEDNESS
WITHIN THE MEANING OF SEC. 270, SO AS TO REQUIRE A CORRESPONDING
REDUCTION IN THE BASIS OF THE PROPERTY TRANSFERRED.  ACCORDINGLY HE NOW
URGES THAT THE ASSESSMENT SHOULD BE MADE, AS THE SECTION REQUIRES, UPON
THE BASIS OF THE FAIR MARKET VALUE OF THE PROPERTY.  FN2  THE
TAXPAYER'S CLAIM IS MADE ON THE HIGHER BASIS OF THE DEBTOR CORPORATION,
IN THE VIEW THAT SEC. 270 IS NOT APPLICABLE TO SUCH A TRANSACTION. 

THIS DIFFERENCE HAS BEEN THE BASIC ONE BETWEEN THE PARTIES IN
PROCEEDINGS BEFORE THE TAX COURT, FN3  THE CIRCUIT COURT OF APPEALS AND
HERE.  OTHERS INCLUDE A SIMILAR QUESTION WITH RESPECT TO THE EXTINCTION
OF THE DEBTOR'S LIABILITY FOR THE ACCRUED UNPAID INTEREST ON THE BONDS
AND WHETHER SEC. 270 IS MADE APPLICABLE RETROACTIVELY TO THE YEARS
PRIOR TO 1938, BY VIRTUE OF THE PROVISIONS OF SEC. 276C(3) OF THE
CHANDLER ACT.  FN4 

THE TAX COURT DECIDED THE PRINCIPAL ISSUE ON THE MERITS IN FAVOR OF
THE TAXPAYER, EXCEPT WITH RESPECT TO THE ACCRUED INTEREST.  CF. ALSO
CAPENTO SECURITIES CORP. V. COMMISSIONER, 47 B.T.A. 691, AFFIRMED, 140
F.2D 382.  IT LIKEWISE LIMITED THE APPLICATION OF SEC. 270 TO THE YEAR
1938 AND SUCCEEDING YEARS.  1 T.C. 163.  THE COURT OF APPEALS REVERSED
THE TAX COURT'S DECISION IN BOTH RESPECTS, HOLDING THERE WAS A
CANCELLATION OF INDEBTEDNESS WITH RESPECT TO THE UNPAID PRINCIPAL  FN5
AND THAT SEC. 270 WAS APPLICABLE RETROACTIVELY TO REQUIRE THE
PRESCRIBED REDUCTION IN BASIS FOR EACH OF THE TAX YEARS IN QUESTION. 
138 F.2D 962.  CERTIORARI WAS GRANTED, 321 U.S. 759, BECAUSE OF THE
IMPORTANCE OF THE QUESTIONS PRESENTED AND A CONFLICT ON THE QUESTION OF
RETROACTIVITY.  FN6  THE FACTS ARE STATED SHORTLY IN THE MARGIN, TO
GIVE CONCRETE PERSPECTIVE.  FN7

 I. 

PETITIONER EARNESTLY ARGUES THAT THE TAX COURT'S DECISION, SO FAR AS
THIS WAS IN ITS FAVOR, SHOULD BE AFFIRMED ON THE AUTHORITY OF DOBSON V.
COMMISSIONER, 320 U.S. 489, THOUGH IN OTHER RESPECTS IT SEEKS A
REVERSAL OF THAT COURT'S JUDGMENT.  FN8  FOR REASONS PRESENTLY TO BE
STATED, WE THINK THE CASE MUST BE DISPOSED OF IN ITS ENTIRETY BY THE
APPLICATION OF SEC. 276C(3), WHICH DETERMINES THE EXTENT TO WHICH SECS.
268 AND 270 ARE APPLICABLE IN POINT OF TIME.  ACCORDINGLY, WE ARE NOT
REQUIRED TO PASS UPON THE MERITS OF THE OTHER INTERESTING ISSUES OR
WHETHER THEY FALL WITHIN THE DOBSON ADMONITION.  ON THE OTHER HAND, THE
QUESTION OF THE APPLICABILITY OF SECS. 268 AND 270, UNDER THE TERMS OF
SEC. 276C(3), TO THE TRANSACTIONS INVOLVED IN THIS CASE OBVIOUSLY IS
ONE OF LAW AND OF A SORT NOT REQUIRING THE SPECIALIZED EXPERIENCE OF
THE TAX COURT TO DETERMINE.  FURTHERMORE, IT INVOLVES MAKING AN
ACCOMMODATION BETWEEN THE CONFLICTING POLICIES, IN PART, OF THE
BANKRUPTCY LAWS AND THE REVENUE ENACTMENTS.  SECTIONS 268 AND 270 ARE
INTEGRAL PARTS OF THE FORMER, THOUGH RELATED IN SUBJECT MATTER TO THE
LATTER, AND WERE SO PLACED FOR PURPOSES RELEVANT PRIMARILY TO THAT
LEGISLATION.  FOR THESE REASONS THE ISSUE FALLS BEYOND THE SCOPE OF THE
DOBSON CASE. 

                                 II. 

THE QUESTION PRESENTED BY SEC. 276C(3) MUST BE DETERMINED IN THE
LIGHT OF THE PROBLEM CREATED BY SECS. 268 AND 270.  A STATEMENT OF
THEIR HISTORY IS NECESSARY TO A GENERAL UNDERSTANDING OF THAT PROBLEM. 
IT STEMS BASICALLY FROM UNITED STATES V. KIRBY LUMBER CO., 284 U.S. 1,
AND SUBSEQUENT DECISIONS WHICH HAVE APPLIED THE PRINCIPLE OF THAT
CASE.  FN9  BY THEM A CORPORATION MAY REALIZE INCOME FROM THE
CANCELLATION OR REDUCTION OF INDEBTEDNESS, DEPENDING UPON THE
CIRCUMSTANCES IN WHICH THE TRANSACTION OCCURS.  HOWEVER, THE LINE
BETWEEN INCOME-PRODUCING REDUCTIONS AND OTHERS IS NOT PRECISE OR
DEFINITE AND GREAT UNCERTAINTY PREVAILED CONCERNING IT, BOTH IN 1934
WHEN SEC. 77B WAS ENACTED AND IN 1938 WHEN CHAPTER X OF THE CHANDLER
ACT WAS ADOPTED.  THE UNCERTAINTY WAS GREATEST PERHAPS IN RELATION TO
TRANSACTIONS OCCURRING IN THE COURSE OF INSOLVENT REORGANIZATIONS. 
FN10 

SOME OF THE OBSCURITY HAS BEEN CREATED BY THE VERY LEGISLATION
ENACTED TO REMOVE IT.  THIS HAS BEEN TRUE OF THE SUCCESSIVE
"REORGANIZATION" PROVISIONS, INCLUDING THOSE FOR "NONRECOGNITION" AND
FOR TRANSFER OF "BASIS," WHICH HAVE APPEARED IN THE VARIOUS REVENUE
ACTS FROM 1918(CF. 40 STAT. 1057) FORWARD.  CLOSELY RELATED, AS THESE
HAVE BEEN, TO THE PROBLEM WHETHER INCOME IS REALIZED BY THE
CANCELLATION OR REDUCTION OF INDEBTEDNESS IN CONNECTION WITH A
REORGANIZATION, THEY HAVE TENDED TO OBSCURE IF NOT TO BLOT OUT THAT
PROBLEM ALTOGETHER IN SITUATIONS COVERED BY THEIR TERMS.  FN11 

BY AND LARGE THE PROVISIONS ARE THE PRODUCT OF AND HAVE REFLECTED
EFFORTS AT COMPROMISE, NONE TOO SUCCESSFUL, BETWEEN THE CONFLICTING
PULLS OF POLICY INVOLVED IN THE REVENUE ACTS AND IN THE BANKRUPTCY
LEGISLATION.  THEY WERE DRAWN AND ENACTED HOWEVER AS PARTS OF THE
REVENUE LAWS AND HAVE REFLECTED INCREASINGLY THE POLICY OF THAT
LEGISLATION.  FN12  ACCORDINGLY, THE SUCCESSION OF STATUTES RELATING TO
THIS FIELD, PRIOR TO SECS. 268 AND 270, REPRESENTS A SERIES OF SHIFTS
IN THE LEGISLATIVE PENDULUM FROM INITIAL BROAD TAX RELIEF, TO ENCOURAGE
NEEDED REORGANIZATIONS, TOWARD NARROWED EXEMPTION, IN ORDER TO
DISCOURAGE USE OF REORGANIZATION FOR EVASION OF TAXES.  THE GENERAL
PURPOSE OF THE PROVISIONS, HOWEVER, WAS TO POSTPONE THE TAX
CONSEQUENCES WHICH OTHERWISE MIGHT ENSUE UPON TRANSACTIONS OCCURRING IN
SUCH CIRCUMSTANCES THAT IMMEDIATE IMPOSITION WAS REGARDED AS
ECONOMICALLY UNJUSTIFIABLE.  FN13  THIS CONTINUED IN THE 1934 GENERAL
REVISION,  FN14 WHICH REMAINED IN EFFECT DURING THE PERIOD OF THIS
LITIGATION. 

IN SOME RESPECTS, AS COMPARED WITH THE PREEXISTING LEGISLATION, THE
1934 PROVISIONS BROADENED, BUT IN OTHERS THEY RESTRICTED, THE SCOPE OF
APPLICATION OF THE PRINCIPLES OF NONRECOGNITION AND TRANSFER OF BASIS. 
FN15  NEVERTHELESS, THEY WERE APPLICABLE TO ALL EXCHANGES FALLING
WITHIN THEIR TERMS, WHETHER OR NOT THE PLAN WAS EXECUTED IN CONNECTION
WITH A JUDICIAL PROCEEDING.  CONSEQUENTLY, WHEN IN JUNE, 1934, SEC. 77B
WAS ADOPTED, THE 1934 REVENUE PROVISIONS BECAME APPLICABLE TO
REORGANIZATIONS UNDER THAT SECTION, BUT ONLY IF THEY MET THE TESTS
PRESCRIBED IN THE REVENUE ACTS, INCLUDING SUCH JUDICIALLY INTERPOLATED
MATTERS AS "CONTINUITY OF INTEREST" AND "BUSINESS PURPOSE."  FN16  MANY
77B REORGANIZATIONS DID NOT QUALIFY UNDER THESE TESTS OR ON SUBSTANTIAL
GROUNDS WERE THOUGHT NOT TO DO SO. 

THE CONSEQUENCE WAS SERIOUSLY TO CLOG THE USE OF THE 77B PROCEDURE. 
OBSTACLES WERE IMPOSED NOT ONLY BY THE DIFFERENCES IN THE TWO STATUTORY
DEFINITIONS OF "REORGANIZATION," BUT ALSO BY AMBIGUITIES IN EACH
DEFINITION WHICH IN THEMSELVES CREATED CONSIDERABLE AREAS OF
UNCERTAINTY.  FN17  AND UNDERLYING THESE REMAINED THE MYSTERY OF WHEN
INCOME WOULD BE REGARDED AS REALIZED, WHICH CONTINUED TO HAUNT
REORGANIZERS UNSURE OF WHETHER THEY COULD BRING THEMSELVES WITHIN THE
STATUTORY EXEMPTIONS.  IN SHORT, THE NECESSITY OF SQUARING THE
REORGANIZATION FIRST WITH SEC. 77B, THEN WITH THE DIFFERENT TERMS OF
THE REVENUE PROVISIONS, AND THE UNCERTAINTIES INVOLVED UNDER EACH
STATUTE IN DOING THIS, ADDED TO THE PUZZLE OF "REALIZED INCOME," MADE
THE PROCESS OF CREDITORS' REORGANIZATION UNDER THE FORMER ACT A HIGHLY
DUBIOUS ADVENTURE.  TO AN UNDETERMINED EXTENT THE EFFECT OF THE REVENUE
ACT'S PROVISIONS WAS TO NULLIFY OR MAKE IMPOSSIBLE OF REALIZATION THE
OBJECTS OF SEC. 77B. 

IN THIS SETTING CONGRESS ADOPTED THE CHANDLER ACT IN 1938.  THAT
STATUTE WAS A GENERAL REVISION OF THE PROVISIONS FOR BANKRUPTCY
REORGANIZATION, INCLUDING THOSE PREVIOUSLY MADE UNDER SEC. 77B.  ONE OF
ITS PRINCIPAL OBJECTS WAS TO ENCOURAGE THE FREER USE OF BANKRUPTCY
REORGANIZATION IN ORDER TO AVOID UNNECESSARY OR PREMATURE
LIQUIDATIONS.  BY THIS TIME CONGRESS HAD BECOME AWARE OF THE HAZARDOUS
AND HAMPERING EFFECTS OF THE 1934 REVENUE PROVISIONS UPON THE OPERATION
OF BANKRUPTCY REORGANIZATIONS UNDER SEC. 77B.  THE OBJECTIVES OF THE
CHANDLER ACT, IN SIMILAR SITUATIONS, COULD NOT BE ACHIEVED WITHOUT
REMOVAL OF THESE IMPEDIMENTS.  SOME PROVISION WAS ESSENTIAL TO PREVENT
THEM FROM HAVING THE SAME EFFECTS UPON THE WORKING OF THE NEW
LEGISLATION.  ACCORDINGLY SEC. 268 WAS DEVISED FOR THIS PURPOSE AND
BECAME A PART OF THE CHANDLER ACT ITSELF.  IT HAD NO OTHER OBJECT, AND
THERE WAS NO OTHER OCCASION FOR ITS BEING, THAN TO FREE CHAPTER X
REORGANIZATIONS FROM THE TAX DETERRENTS, INCLUDING TAX UNCERTAINTIES,
IMPOSED BY THE EXISTING REVENUE ACT PROVISIONS. 

THE RELIEVING EFFECT OF SEC. 268 WAS CONFINED IN THREE WAYS, NAMELY,
(1) TO TRANSACTIONS OCCURRING IN A CHAPTER X REORGANIZATION; (2) TO
TRANSACTIONS INVOLVING A MODIFICATION OR A CANCELLATION, IN WHOLE OR IN
PART, OF THE DEBTOR'S INDEBTEDNESS; AND (3) ITS BENEFITS WERE LIMITED
TO THE DEBTOR CORPORATION, THE TRUSTEE, IF ANY, PROVIDED FOR IN THE
PLAN, AND THE SUCCESSOR OR TRANSFEREE CORPORATION.  WITHIN THESE
LIMITATIONS THE SECTION PROVIDED THAT "NO INCOME OR PROFIT, TAXABLE
UNDER ANY LAW  ...  SHALL  ...  BE DEEMED TO HAVE ACCRUED TO OR TO HAVE
BEEN REALIZED BY ..."  THE PARTIES SPECIFIED, AND THUS REMOVED CHAPTER
X TRANSACTIONS FROM INCIDENCE OF THE UNCERTAINTIES CHARACTERIZING THE
GENERAL "REORGANIZATION" PROVISIONS.  ONE WHO FOLLOWED THE PROCEDURE
COULD BE ASSURED HE WOULD NOT THEREBY RUN INTO TAX CONSEQUENCES WHICH
WOULD BE WORSE THAN THE ECONOMIC ILLNESS REQUIRING THAT CURE. 

AS IT WAS ORIGINALLY CONSIDERED BY THE HOUSE COMMITTEE, THE CHANDLER
ACT CONTAINED NO COUNTERPART OF THE PRESENT SEC. 270.  HAD SEC. 268
THUS BEEN LEFT TO STAND ALONE, WITH NO ACCOMPANYING PROVISION FOR
"BASIS," EITHER THERE WOULD HAVE BEEN NO APPLICABLE PROVISION FOR
"BASIS" OR THE GENERAL "BASIS" PROVISIONS WOULD HAVE REMAINED
APPLICABLE TO CHAPTER X REORGANIZATIONS FALLING WITHIN THEIR TERMS,
WITH THE RESULT THAT THEY WOULD APPLY TO SOME CHAPTER X REORGANIZATIONS
BUT NOT TO OTHERS.  THE LATTER VIEW APPARENTLY WAS GENERALLY ACCEPTED. 
UNDER IT MUCH OF THE PREVIOUS UNCERTAINTY WOULD HAVE REMAINED, BUT WITH
ITS FOCUS SHIFTED FROM "REALIZED INCOME" TO "BASIS."  MOREOVER, IT WAS
THE VIEW OF TREASURY OFFICIALS, APPARENTLY IN THE ASSUMPTION OF
CONTINUED TRANSFER OF "BASIS" UNDER THE GENERAL PROVISIONS, THAT THE
EFFECT OF SEC. 268 WOULD BE TO PROVIDE A DOUBLE DEDUCTION IN SOME
CASES,  FN18  UNLESS COMPLEMENTED BY A CORRESPONDING "BASIS" PROVISION,
AND THUS BE UNFAIR TO THE REVENUE. 

ACCORDINGLY THE TREASURY, AND OTHERS, MADE VARIOUS PROPOSALS,  FN19
WHICH EVENTUATED IN THE ADOPTION OF SEC. 270 IN ITS ORIGINAL FORM. 
THIS PROVIDED FOR TRANSFER OF BASIS, AS DID THE CODE PROVISIONS, BUT
REQUIRED THAT IT BE DECREASED BY THE AMOUNT OF THE REDUCTION OF
INDEBTEDNESS, A MEASURE AT VARIANCE WITH THE TERMS OF THE CODE.  IT WAS
FROM THE REQUIREMENT OF REDUCTION, AND THE MEASURE PROVIDED FOR IT,
THAT NEW DIFFICULTIES WERE DERIVED.  ALTHOUGH THE ONLY OCCASION FOR
MAKING A FURTHER PROVISION CONCERNING BASIS AROSE FROM THE ADOPTION OF
SEC. 268 AND ALTHOUGH THE LEGISLATIVE HISTORY DISCLOSES THE PURPOSE OF
CONGRESS EXACTLY CONTRARY TO PLACING CHAPTER X REORGANIZATIONS AT
RADICAL DISADVANTAGE FROM OTHERS, THE LITERAL EFFECT OF THE ORIGINAL
SEC. 270 CAME NEAR IF NOT ENTIRELY TO WIPING OUT THE WHOLE BENEFIT
CONFERRED BY SEC. 268.  FN20  SOON IT WAS REALIZED THAT LITERAL
APPLICATION OF THE SPECIFIED NEW MEASURE OF REDUCTION WOULD REQUIRE
DECREASE OF BASIS IN MANY INSTANCES TO ZERO OR EVEN TO A POINT BELOW
ZERO, BECAUSE THE AMOUNT OF THE DEBT CANCELLED OR REDUCED WOULD EQUAL
OR EXCEED THE VALUE OF THE PROPERTY OR THAT ASSIGNED TO THE BASIS
TRANSFERRED.  THUS, ANY TAX BENEFIT DERIVED FROM SEC. 268, IN SUCH
CASES, WOULD BE MORE THAN OFFSET BY THE HIGHER TAXES RESULTING IN LATER
YEARS FROM THE ABSENCE OF ANY DEPRECIATION BASE AND IN CASE OF SALE OF
THE PROPERTY ACQUIRED.  AND IN CASES WHERE NO BENEFIT COULD BE DERIVED
FROM SEC. 268, THE EFFECT OF APPLYING SEC. 270 WAS, IF NOT TO IMPOSE A
CAPITAL LEVY,  FN21  THEN TO DENY THE NEW OWNERS EQUAL TREATMENT, NOT
ONLY WITH OTHER TRANSFEREES UNDER THE CODE PROVISIONS, BUT WITH ALL
OTHER TAXPAYERS.    CONGRESS, IN VIEW OF ITS ORIGINAL OBJECT IN
ADOPTING SEC. 268, COULD NOT POSSIBLY HAVE INTENDED SUCH CONSEQUENCES
FOR SEC. 270.  THE CURE WAS WORSE THAN THE DISEASE.  FN22  THE
LEGISLATIVE HISTORY GIVES THE CLEAR IMPRESSION THAT ADOPTION OF THE
ORIGINAL SEC. 270 WAS A PLAIN BLUNDER, THE CONSEQUENCES OF WHICH WERE
NOT FORESEEN, UNDERSTOOD OR INTENDED BY THOSE WHO FINALLY GAVE IT THE
FORM OF LAW.  FN23 

LEGISLATIVE RELIEF OBVIOUSLY WAS IN ORDER AND WAS FORTHCOMING AT THE
NEXT SESSION OF CONGRESS, IN THE AMENDMENT OF SEC. 270 ADDING THE
LANGUAGE GIVING IT ITS PRESENT FORM.  FN24  THE AMENDMENT REMOVED SOME,
BUT NOT ALL OF THE UNCERTAINTY CERTAINTY CONFRONTING CHAPTER X
REORGANIZERS.  IT PLACED A FLOOR TO THE AMOUNT OF REDUCTION REQUIRED. 
IN NO CASE WOULD BASIS BE REDUCED BELOW FAIR MARKET VALUE.  BUT THIS
WAS ONLY PARTIAL CURE OF THE ORIGINAL INFIRMITIES.  ABOVE THE FLOOR,
DEBT CANCELLATION REMAINED THE MEASURE OF REDUCTION, THUS KEEPING
CHAPTER X REORGANIZATIONS GENERALLY AT A DISADVANTAGE WITH THOSE TAKING
PLACE UNDER THE CODE.  BUT, WHAT WAS MORE IMPORTANT, THE CHIEF HAZARD
REMAINED, NAMELY, WHETHER SEC. 270 WAS INTENDED TO OPERATE ONLY WHERE
SEC. 268 WAS EFFECTIVE TO AFFORD ACTUAL TAX BENEFIT OR, AS THE
GOVERNMENT CONTENDS, REGARDLESS OF WHETHER SUCH RELIEF WAS AFFORDED. 
AND IN THIS CASE THE HAZARD HAS BEEN REALIZED IN ASSESSMENT. 

           III. 

WITH THIS BACKGROUND WE TURN TO SEC. 276C(3).  BY THEIR OWN TERMS
SECS. 268 AND 270 APPLY ONLY TO TRANSACTIONS ARISING IN CONNECTION WITH
PROCEEDINGS "UNDER THIS CHAPTER," THAT IS, CHAPTER X OF THE CHANDLER
ACT.  THE INSTANT TRANSACTIONS AROSE IN PROCEEDINGS NOT UNDER CHAPTER
X, BUT UNDER SEC. 77B, WHICH HAD BEEN CLOSED BY FINAL DECREE MARCH 1,
1937.  THE CHANDLER ACT BECAME EFFECTIVE SEPTEMBER 22, 1938. 
ACCORDINGLY SECS. 268 AND 270, OF THEIR OWN FORCE, ARE NOT APPLICABLE
TO THESE TRANSACTIONS.  IF THEY ARE SO AT ALL IT IS BY VIRTUE OF SEC.
276C(3), WHICH THE GOVERNMENT SAYS MUST BE CONSTRUED TO EXTEND THEIR
OPERATION RETROACTIVELY TO INCLUDE THESE FACTS.  THIS PETITIONER
DISPUTES. 

THE LANGUAGE IMMEDIATELY IN QUESTION IS THE ITALICIZED PART OF
SUBDIVISION (3), AS FOLLOWS: 

"(C)  THE PROVISIONS OF SECTIONS 77A AND 77B  ...  SHALL CONTINUE IN
FULL FORCE AND EFFECT WITH RESPECT TO PROCEEDINGS PENDING  ...  UPON
THE EFFECTIVE DATE OF THIS AMENDATORY ACT, EXCEPT THAT - 

     .         .         .         .         . 

"(3)  SECTIONS 268 AND 270 OF THIS ACT SHALL APPLY TO ANY PLAN
CONFIRMED UNDER SECTION 77B BEFORE THE EFFECTIVE DATE OF THIS
AMENDATORY ACT AND TO ANY PLAN WHICH MAY BE CONFIRMED UNDER SECTION 77B
ON AND AFTER SUCH EFFECTIVE DATE, EXCEPT THAT THE EXEMPTION PROVIDED BY
THAT ANY SUCH PLAN HAD FOR ONE OF ITS PRINCIPAL PURPOSES THE AVOIDANCE
OF INCOME TAXES, AND EXCEPT FURTHER THAT WHERE SUCH PLAN HAS NOT BEEN
CONFIRMED ON AND AFTER SUCH EFFECTIVE DATE, SECTION 269 OF THIS ACT
SHALL APPLY WHERE PRACTICABLE AND EXPEDIENT."  52 STAT. 905, 11 U.S.C.
SEC. 676. 

THREE CONSTRUCTIONS HAVE BEEN ADVANCED.  SHORTLY STATED THEY ARE THAT
SECS. 268 AND 270 APPLY TO TRANSACTIONS INVOLVED IN 77B PROCEEDINGS (1)
ONLY IF THE PROCEEDINGS WERE PENDING SEPTEMBER 22, 1938; (2) ONLY FOR
1938 AND LATER TAX YEARS, BUT INCLUDING TRANSACTIONS IN PROCEEDINGS
CLOSED BEFORE SEPTEMBER 22, 1938; (3) FOR ALL TAX YEARS FROM 1934
FORWARD AS TO TRANSACTIONS IN ALL PROCEEDINGS IN WHICH A PLAN HAD BEEN
OR SHOULD BE CONFIRMED, REGARDLESS OF WHETHER THE PROCEEDINGS WERE
PENDING OR HAD BEEN CLOSED ON SEPTEMBER 22, 1938. 

THE PETITIONER ADVANCES THE FIRST TWO VIEWS, ALTERNATIVELY; THE
GOVERNMENT THE THIRD.  THE GOVERNMENT INTERPRETS THE ITALICIZED
LANGUAGE AS IF IT WERE WHOLLY DISCONNECTED FROM AND UNRELATED TO THE
PRECEDING PORTIONS OF SEC. 276C, IN OTHER WORDS, AS AN ENTIRELY
INDEPENDENT PROVISION UNLIMITED BY ITS STATUTORY CONTEXT.  PETITIONER,
ON THE OTHER HAND, REGARDS IT AS MERELY A PART OR PHASE OF SEC. 276C,
FN25  AND THUS REACHES THE EXACTLY CONTRARY VIEW OF ITS MEANING.  THE
STATUTE, IT SAYS, REFERS IN THE FIRST PARAGRAPH OF "C" TO "PROCEEDINGS
PENDING" UNDER 77B AND, TO QUOTE THE BRIEF, "EXCEPTIONS (1), (2) AND
(3) ARE KEYED INTO THIS FIRST PARAGRAPH AND REFER TO PENDING
PROCEEDINGS ALSO.  THEY MERELY EXCEPT FROM THE PENDING CASES THOSE TO
WHICH 77B IS NOT TO APPLY.  SINCE (C) DEALS ONLY WITH PENDING CASES AND
NOT CLOSED CASES, THEY REFER ALSO TO PENDING CASES."  THE GOVERNMENT
CONCEDES THERE IS FORCE IN THIS VIEW, THOUGH IT SUGGESTS, WE THINK
UNTENABLY,  FN26  THAT THE QUESTION IS DOUBTFULLY OPEN.  THE COURT OF
APPEALS ACCEPTED THE GOVERNMENT'S VIEW, THE TAX COURT THE ALTERNATIVE
OR SECOND VIEW ADVANCED BY THE TAXPAYER.  WE THINK NEITHER CAN BE
ACCEPTED AND THAT THE EFFECT OF SEC. 276C(3) IS TO CONFINE THE
APPLICATION OF SECS. 268 AND 270, IN 77B PROCEEDINGS, TO PROCEEDINGS
PENDING WHEN THE CHANDLER ACT BECAME EFFECTIVE. 

IF SECS. 268 AND 270 WERE TO BE APPLIED TO ALL REORGANIZATIONS
COMPLETED UNDER SEC. 77B, LITERALLY THEY WOULD COVER ALL SUCH
TRANSACTIONS RUNNING BACK TO 1934, WHEN THE LATTER SECTION WAS
ENACTED.  AS TO PROCEEDINGS CLOSED WHEN THE CHANDLER ACT TOOK EFFECT,
THIS WOULD INVOLVE DISTURBANCE OF TAX CONSEQUENCES ALREADY SETTLED FOR
FIVE YEARS, UNLESS CASES ARE EXCEPTED WHERE THE STATUTE OF LIMITATIONS
HAD RUN.  FN27  WE HAVE NO MEANS OF KNOWING HOW MUCH RESURRECTION OF
OLD CLAIMS OR GENERATION OF NEW ONES IN RESPECT TO SETTLED MATTERS THIS
WOULD CREATE.  NOR DID THE AUTHORS OF THE CHANDLER ACT.  BUT, FROM THE
CIRCUMSTANCES OF THE TIME AND THE VERY NECESSITIES WHICH BROUGHT ABOUT
ADOPTION OF SEC. 77B, THE VOLUME MUST HAVE BEEN CONSIDERABLE. 

TO CONSTRUE SEC. 276C(3) TO PRODUCE SUCH CONSEQUENCES IN NO WAY WOULD
FURTHER THE PRIMARY OBJECTS OF SECS. 268 AND 270, WHICH WERE TO
ENCOURAGE USE OF CHANDLER ACT PROCEDURES, AT THE SAME TIME PREVENTING
THEIR ABUSE FOR TAX ADVANTAGE.  RATHER IT WOULD PERVERT THOSE SECTIONS
BY CHANGING THEIR CHARACTER, TO THE EXTENT OF THEIR RETROACTIVE
OPERATION, FROM RELIEF PROVISIONS TO PURELY REVENUE MEASURES OF THE
WORST TYPE.  IN ADOPTING THEM CONGRESS WAS NOT UPROOTING THE WHOLE TAX
PAST OF REORGANIZED DEBTORS AND THEIR CREDITORS.  IT WAS, OR PURPORTED
TO BE, GIVING RELIEF FROM HARSH OR UNCERTAIN TAX CONSEQUENCES TO
PERSONS REORGANIZING PRESENTLY OR IN THE FUTURE.  FN28 

THE LANGUAGE DOES NOT REQUIRE SUCH UNLIMITED CONSTRUCTION.  THE WORDS
ARE NOT DIRECTED EXPRESSLY TO PAST TAX YEARS.  NOR ARE THEY FOCUSED
UPON TRANSACTIONS IN CLOSED PROCEEDINGS.  IT IS TRUE THAT SEC. 276C(3),
IF CONSTRUED AS THOUGH IT WERE ENTIRELY INDEPENDENT OF THE REMAINDER OF
SEC. 276C, DOES NOT REFER EXPLICITLY TO PENDING 77B PROCEEDINGS, EXCEPT
IN ITS CONCLUDING CLAUSE.  YET IT IS PART AND PARCEL OF THAT SECTION,
WHICH IN ALL OTHER RESPECTS DEALS ONLY WITH PENDING AND FUTURE
PROCEEDINGS, NOT WITH CLOSED ONES.  AND THE CONCLUDING CLAUSES OF (3)
AFFORD ADDITIONAL EVIDENCE THAT IT WAS INTENDED TO APPLY ONLY TO PLANS
CONFIRMED OR TO BE CONFIRMED IN PENDING PROCEEDINGS, AS DOES ALSO ITS
SETTING IN THE CONTEXT OF SEC. 276 AS A WHOLE.  FN29 

THUS SEC. 276, IN SUBSECTIONS A, B AND C (EXCEPTING ONLY SEC.
276C(3)), DEALS EXCLUSIVELY WITH PENDING OR FUTURE PROCEEDINGS. 
CONGRESS' CONCERN IN "A" WAS THAT CHAPTER X SHOULD APPLY
NOTWITHSTANDING THE SUBSTANTIVE RIGHTS OF DEBTORS, CREDITORS AND OTHERS
HAD ARISEN BEFORE THE EFFECTIVE DATE OF THE ACT.  IN "B" IT WAS THAT
THE PENDENCY OF BANKRUPTCY AND RECEIVERSHIP PROCEEDINGS SHOULD NOT
DEFEAT RESORT TO THE CHANDLER ACT'S PROVISIONS; IN "C" IT WAS WITH AN
ACCOMMODATION OF THE PROVISIONS OF SECS. 77A AND 77B AND THOSE OF THE
CHANDLER ACT AS TO PENDING PROCEEDINGS.  APART FROM SEC. 276C(3),
THEREFORE, THE WHOLE PROBLEM TREATED IN SEC. 276 WAS TO GIVE THE
CHANDLER ACT AS WIDE ROOM AS POSSIBLE FOR FUTURE OPERATION,
NOTWITHSTANDING THE PREVIOUS VESTING OF SUBSTANTIVE RIGHTS OR
INSTITUTION OF BANKRUPTCY OR REORGANIZATION PROCEEDINGS.  CONGRESS WAS
CONCERNED WITH THE ACT'S FUTURE OPERATION, AS A REMEDIAL PROVISION, NOT
AS A METHOD OF CREATING NEW AND RETROACTIVE SUBSTANTIVE RIGHTS AND
LIABILITIES. 

THIS BEING TRUE, IT IS DIFFICULT TO UNDERSTAND WHY CONGRESS MIGHT
WISH TO FOLLOW EXACTLY THE OPPOSITE POLICY WITH REFERENCE TO NEWLY
CREATED SUBSTANTIVE TAX RIGHTS AND LIABILITIES.  IT WOULD SEEM WHOLLY
INCONGRUOUS TO IMPLY SUCH A PURPOSE IN THE ABSENCE OF LANGUAGE
UNQUESTIONABLY REQUIRING IT, BOTH AS A MATTER OF GENERAL LEGISLATIVE
POLICY AND, MORE ESPECIALLY, AS ONE OF ACCOMMODATION WITH THE PURPOSES
OF THE PARTICULAR LEGISLATION.  IN SHORT, APART FROM SUBDIVISION (3),
RELATING TO TAX INCIDENTS OF REORGANIZATION, ALL OF SEC. 276 WAS
DEVOTED ENTIRELY TO MATTERS AFFECTING PENDING AND FUTURE PROCEEDINGS. 
WE CAN FIND REASON FOR NO OTHER VIEW THAN THAT THIS WAS TRUE ALSO OF
THE PROVISIONS FOR APPLICATION OF THE NEW TAX FEATURES. 

THIS IS BORNE OUT BY THE CONCLUDING CLAUSES OF SEC. 276C(3) ITSELF,
WHICH PROVIDE FOR EXCEPTIONS TO ITS OPERATION.  THE SECOND EXCEPTION IN
TERMS RELATES ONLY TO PENDING PROCEEDINGS.  IT CONTEMPLATED FUTURE
CONFIRMATION EXCLUSIVELY.  THE FIRST EXCEPTION, STANDING ALONE,
LITERALLY COULD BE APPLIED IN THE CASE OF A CLOSED PROCEEDING.  BUT
REACHING SUCH CASES WAS NOT A NECESSARY REASON FOR INCLUDING IT.  SUCH
A REASON EXISTED, HOWEVER, IN THE NECESSITY FOR COVERING PLANS ALREADY
CONFIRMED IN PENDING PROCEEDINGS, UNLESS PARTIES THEN REORGANIZING
UNDER SEC. 77B WERE TO BE TREATED DIFFERENTLY FROM OTHERS REORGANIZING
AT THE SAME TIME UNDER CHAPTER X. THE TWO EXCEPTIONS THUS DOVETAILED TO
PROVIDE COMPLETE COVERAGE FOR DISALLOWING THE EXEMPTION GIVEN BY SEC.
268 IN PENDING PROCEEDINGS.  THEY COMPREHENDED DISTINCT SITUATIONS AND
PROVIDED DIFFERENT SANCTIONS,  FN30  ALL HOWEVER CONSISTENT WITH
APPLICATION ONLY IN PENDING PROCEEDINGS.  THUS THE ENTIRE LANGUAGE OF
SEC. 276C(3) WAS CAPABLE OF FULL AND COMPLETE APPLICATION, ALTHOUGH
CONFINED TO PENDING PROCEEDINGS.  TO GIVE IT GREATER SCOPE,
RETROACTIVELY, IS REQUIRED NEITHER BY THE TERMS NOR BY THE PURPOSES OF
THE SPECIFIC PROVISION OR OTHERS RELATED TO IT IN CONTEXT OR BY
REFERENCE. 

THAT THE NARROWER APPLICATION WAS THE INTENDED ONE SEEMS MOST
APPARENT WHEN THE NATURE OF THE PROBLEM WITH WHICH SEC. 276C(3) SOUGHT
TO DEAL IS CONSIDERED.  THERE WAS NO PROBLEM, ARISING FROM ENACTMENT OF
THE CHANDLER ACT, WITH REFERENCE TO CLOSED 77B PROCEEDINGS.  AND THERE
WAS NO REASON ORIGINALLY, WHEN SEC. 268 STOOD ALONE, FOR GIVING THE
RELIEF IT AFFORDED TO TAXPAYERS INVOLVED IN SUCH PROCEEDINGS.  NOTHING
IN THE LEGISLATIVE HISTORY OF SEC. 268, OR OF SEC. 270, SHOWS ANY
CONCERN, INTENT OR OCCASION FOR DEALING WITH SUCH TAXPAYERS.  THE WHOLE
DESIRE RELATED RATHER, AS HAS BEEN SHOWN, TO TAXPAYERS WHO MIGHT BE
ADVERSELY AFFECTED BY THE GENERAL REVENUE PROVISIONS IN TAKING
ADVANTAGE OF THE CHANDLER ACT. 

HOWEVER, THAT ACT ITSELF CREATED ANOTHER PROBLEM, NAMELY, HOW FAR ITS
TERMS SHOULD APPLY IN PENDING 77B PROCEEDINGS.  CONGRESS DECIDED THAT
THE CHANDLER PROCEDURE SHOULD BE FOLLOWED AS FAR AS POSSIBLE, THOUGH
NOT TO THE EXTENT OF DISPLACING THE 77B PROCEDURE IN REORGANIZATIONS
FAR ADVANCED.  FN31  THE SAME POLICY WAS FRAMED FOR OTHER CHAPTERS. 
CONSEQUENTLY SECS. 276C(1) AND (2) WERE INCLUDED, AS WERE ALSO
COMPARABLE PROVISIONS IN OTHER CHAPTERS.  FN32  WITH THEM IN, THE
PROBLEM WAS PRESENTED WHETHER THE CHANDLER ACT'S TAX RELIEF PROVISIONS,
INCLUDING SECS. 268 AND 270, SHOULD APPLY ALSO IN THE PENDING 77B
PROCEEDINGS AND, IF SO, TO WHAT EXTENT - ONLY TO THOSE CONVERTED INTO
CHANDLER ACT PROCEEDINGS BY SEC. 276C(1), OR ALSO TO THOSE PARTIALLY
CONVERTED UNDER SEC. 276C(2) BY AN EXERCISE OF JUDICIAL DISCRETION AND
THOSE FALLING WITHIN 276C(2) BUT SO NEARLY COMPLETED OR OTHERWISE
SITUATED THAT APPLICATION OF THE CHANDLER ACT IN ANY RESPECT WOULD BE
IMPRACTICABLE AND THEREFORE 77B WOULD CONTINUE EXCLUSIVELY EFFECTIVE. 

ALTHOUGH THESE PENDING 77B PROCEEDINGS, AND PARTICULARLY THOSE
NEARING COMPLETION, HAVING BEEN ALREADY BEGUN, WERE GENERALLY WITHOUT
THE SCOPE OF THE ENCOURAGEMENT SECS. 268 AND 270 WERE INTENDED TO GIVE
TO PERSONS CONTEMPLATING REORGANIZATION, CONGRESS UNDOUBTEDLY FELT IT
WOULD BE UNFAIR TO GIVE THE RELIEF TO TAXPAYERS FOLLOWING THE CHANDLER
ACT PROCEDURE, BUT DENY IT TO PERSONS FOLLOWING THAT OF 77B AT THE SAME
TIME.  TO MAKE THIS DISCRIMINATION MIGHT FORCE CONVERSION OF PENDING
77B PROCEEDINGS INTO CHAPTER X PROCEEDINGS, SOLELY ON ACCOUNT OF TAX
CONSEQUENCES, WHERE BUT FOR THEM SUCH CONVERSION WOULD NOT BE PROPER OR
DESIRABLE.  ACCORDINGLY, BY SEC. 276C(3) CONGRESS EXTENDED THE TAX
RELIEF PROVIDED BY SECS. 268 AND 270 ALSO TO PENDING 77B PROCEEDINGS IN
ORDER TO PUT PERSONS CONTINUING 77B REORGANIZATION ON THE SAME BASIS
WITH OTHERS PROCEEDING UNDER CHAPTER X. THERE WAS NO OTHER OCCASION OR
OBJECT FOR THE EXTENSION. 

IN VIEW OF THESE CONSIDERATIONS, BOTH OF CONTEXT AND OF CONSEQUENCE,
WE DO NOT THINK SEC. 276C(3) CAN BE REGARDED AS APPLICABLE TO CLOSED
PROCEEDINGS.  THE PURPOSE RATHER, AS IN THE OTHER PROVISIONS OF SEC.
276, WAS TO LOOK TO THE FUTURE AND IN DOING SO TO MAKE THE NECESSARY
ADJUSTMENT, SO FAR AS WAS POSSIBLE, BETWEEN THE PROVISIONS OF THE
CHANDLER ACT AND PREEXISTING LAWS AS TO PROCEEDINGS PENDING WHEN THE
FORMER TOOK EFFECT.  THUS CONSTRUED, SEC. 276C(3) BECOMES CONSISTENT,
BOTH IN FORM AND IN THE PURPOSE AND EFFECTS OF APPLYING THE NEW TAX
PROVISIONS, WITH THE OTHER PROVISIONS OF SEC. 276 AND WITH THE GENERAL
POLICY OF THE CHANDLER ACT AS TO APPLICABILITY OF ITS TERMS.  FN33  ANY
OTHER VIEW WOULD MAKE SEC. 276C(3) A UNIQUE PROVISION IN THE STATUTE'S
SETTING AND ONE INCONSISTENT WITH, IF NOT ALSO CONTRADICTORY TO, THE
ACT'S GENERAL PURPOSES AND THE LIMITED OBJECTS OF THE PARTICULAR
PROVISIONS IMMEDIATELY IN ISSUE. 

FURTHER SUPPORT FOR THIS VIEW WOULD SEEM TO BE AFFORDED, WHEN THE
CONSEQUENCES OF APPLYING IT OR THE CONTRARY ONE TO SIMILAR PROVISIONS
APPEARING IN OTHER CHAPTERS OF THE CHANDLER ACT  FN34  ARE TAKEN INTO
ACCOUNT.  IF THOSE PROVISIONS ARE TO BE GIVEN RETROACTIVE APPLICATION
COMPARABLE TO WHAT THE GOVERNMENT SAYS SHOULD BE GIVEN TO SECS. 268,
270 AND 276C(3), THE DISRUPTION OF SETTLED TAX SITUATIONS, BY VIRTUE OF
THE CHANDLER ACT'S ADOPTION, MAY BE MULTIPLIED MANY TIMES OVER WHAT
WOULD FOLLOW FROM GIVING SUCH AN EFFECT ONLY TO SECS. 268, 270 AND
276C(3).  ALTHOUGH THE IMMEDIATE CONSEQUENCES OF DECISION IN THIS CASE
ARE LIMITED TO THE SPECIFIC EFFECTS OF THESE SECTIONS, IT IS AT LEAST
DOUBTFUL THAT THEY COULD BE GIVEN A DIFFERENT CONSTRUCTION, AS TO
RETROACTIVE APPLICATION, FROM WHAT MIGHT BE GIVEN TO THE COMPARABLE
INTERPRETATION MAY BE REQUIRED GIVES PAUSE, AT LEAST, BEFORE ADOPTING A
VIEW IN THIS CASE WHICH, IF EXTENDED TO THE OTHER PROVISIONS, WOULD
OPEN SO WIDE A DOOR FOR RETROACTIVE TAXATION. 

AS AGAINST THIS INTERPRETATION, THE GOVERNMENT'S ARGUMENT RESTS
PRIMARILY ON TWO BASES:  (1) THAT THE WORDS OF SEC. 276C(3) REQUIRE ITS
CONSTRUCTION; AND (2) THAT UNLESS THIS IS GIVEN, DISCRIMINATIONS AS TO
TAX CONSEQUENCES WILL BE CREATED BETWEEN TAXPAYERS INVOLVED IN CLOSED
PROCEEDINGS AND THOSE IN PENDING AND FUTURE ONES, WITH THE RESULT THAT
MERE SPEED IN GETTING THE PROCEEDINGS PENDING PRIOR TO SEPTEMBER 22,
1938, TO A FINAL DECREE WOULD DETERMINE WHETHER TAXPAYERS EQUALLY
DESERVING WOULD BE AFFORDED THE RELIEF PROVIDED BY SECS. 268 AND 270. 

THE ANSWERS ARE OBVIOUS.  IN THE FIRST PLACE, THE WORDING OF SEC.
276C(3) DOES NOT REQUIRE THE GOVERNMENT'S CONSTRUCTION.  THAT VIEW CAN
BE TAKEN ONLY IF SUBDIVISION (3) IS TORN, FORMALLY AND SUBSTANTIVELY,
FROM ITS CONTEXT IN THE STATUTE AND THE PROBLEMS WITH WHICH THESE
SURROUNDING PROVISIONS, INCLUDING SECS. 268 AND 270, UNDERTOOK TO
DEAL.  THUS TO TREAT THE PROVISION NOT ONLY WOULD DISREGARD THE
PURPOSES OF ALL THESE RELATED PROVISIONS.  IT WOULD CONVERT SUBDIVISION
(3), IN ITS PRACTICAL APPLICATION, INTO AN ENTIRELY INDEPENDENT TAX
MEASURE, SOLELY IN THE NATURE OF AN AMENDMENT TO THE GENERAL REVENUE
LEGISLATION, AND WITH THE HARSHEST RETROACTIVE TAX CONSEQUENCES.  THIS
IN FACT SEEMS TO BE THE GOVERNMENT'S VIEW OF THE CHARACTER OF THE
LEGISLATION.  FN35  BUT THAT VIEW WHOLLY DISREGARDS THE FACT THAT
NEITHER SECS. 268 AND 270 NOR SEC. 276C(3) HAD ANY PURPOSE ORIGINALLY
OR LATER MERELY TO PRODUCE LARGER REVENUES OR TO OPERATE EXCLUSIVELY AS
REVENUE MEASURES.  IT IS TRUE THEY MODIFIED THE PREEXISTING REVENUE
PROVISIONS, SO FAR AS THEY WERE APPLICABLE BY THEIR TERMS TO DO SO.
BUT THIS WAS A FUNCTION OF THEIR PRIMARY OBJECT, WHICH WAS TO GIVE
RELIEF TO PARTIES UNDERTAKING REORGANIZATION, NOT SIMPLY TO IMPOSE NEW
AND DIFFERENT TAXES UPON THEM, MUCH LESS TO DO SO WITH RESPECT TO
TRANSACTIONS LONG SINCE SETTLED BOTH AS TO TAXES AND AS TO
REORGANIZATION.  THE OBJECTS OF SEC. 276C(3) CANNOT BE IGNORED OR
DISTORTED BY THUS STRIPPING THE PROVISION, FORMALLY AND SUBSTANTIVELY,
FROM ITS STATUTORY SETTING AND THE LIMITATIONS THIS CLEARLY IMPOSES. 

SO FAR AS RESPECTS THE GOVERNMENT'S CONCERN OVER THE POSSIBLE
DISCRIMINATIONS WHICH WILL BE CREATED BETWEEN TAXPAYERS BY ACCEPTANCE
OF PETITIONER'S VIEW, IT IS PERHAPS ENOUGH TO SAY THAT SOME SUCH
DISCRIMINATION IS INEVITABLE WITH WHATEVER SOLUTION MAY BE ACCEPTED;
AND WE THINK WHAT FOLLOWS FROM APPLYING SECS. 268 AND 270 ONLY TO
"PENDING PROCEEDINGS" NOT ONLY IS PREFERABLE TO ANY OTHER BUT IS MOST
CONSISTENT WITH THE NORMAL COURSE OF LEGISLATION.  RETROACTIVITY, EVEN
WHERE PERMISSIBLE, IS NOT FAVORED, EXCEPT UPON THE CLEAREST MANDATE. 
IT IS THE NORMAL AND USUAL FUNCTION OF LEGISLATION TO DISCRIMINATE
BETWEEN CLOSED TRANSACTIONS AND FUTURE ONES OR OTHERS PENDING BUT NOT
COMPLETED.  THE DISCRIMINATION WHICH THE GOVERNMENT FEARS WILL FOLLOW
FROM ACCEPTANCE OF THE TAXPAYER'S VIEW ADMITTEDLY WILL RESULT.  BUT IT
IS ONE CONSISTENT WITH THE NORMAL CONSEQUENCES OF LEGISLATION IN THE
DRAWING OF A LINE BETWEEN THE PAST OR THE PRESENT AND THE FUTURE.  IT
ALSO WAS ONE NECESSARY FOR CONGRESS TO MAKE IF IT WERE NOT TO MAKE
ANOTHER OR OTHERS EQUALLY BAD OR WORSE.  THE GOVERNMENT'S CONCERN IN
THIS CASE IS NOT THAT THE TAXPAYER WILL SUFFER HARSHER DISCRIMINATION
UNDER PETITIONER'S CONSTRUCTION THAN UNDER ITS OWN.  IT IS RATHER THAT
HE WILL NOT SUFFER IT.  FOR, AS INTERPRETED BY THE GOVERNMENT, FN36
SECS. 268, 270 AND 276C(3) APPLIED IN CONJUNCTION WOULD BE MUCH MORE
LIKELY TO PRODUCE NEW, AND RETROACTIVE, TAX BURDENS THAN TAX BENEFITS. 
THE PRESENT CASE IS AN ILLUSTRATION.  TO THIS THE GOVERNMENT MIGHT BE
ENTITLED IF THE STATUTORY MANDATE WERE CLEAR.  IT CANNOT HAVE THAT
ADVANTAGE BY DUBIOUS CONSTRUCTION WHICH IGNORES SO MUCH OF THE
STATUTE'S SETTING, PURPOSE AND HISTORY.  THE LETTER DOES NOT REQUIRE
THIS.  THE CONSEQUENCES FORBID IT. 

THERE REMAINS FOR CONSIDERATION THE REFUSAL OF THE COURT OF APPEALS
TO REVERSE THE FINDINGS OF THE TAX COURT AS TO THE ORIGINAL COST OF THE
APARTMENT BUILDING AND THE PROPRIETY OF DEDUCTIONS CLAIMED IN 1937 FOR
DECORATING EXPENSES.  FN37  THE TAX COURT, IN ARRIVING AT THE COST OF
THE BUILDING, REFUSED TO ALLOW AN ALLEGED TEN PER CENT CONTRACTOR'S
COMMISSION PAID TO THE DEBTOR COMPANY'S PRINCIPAL PROMOTER AND ORIGINAL
SOLE SHAREHOLDER BECAUSE IT WAS NOT CONVINCED BY PETITIONER'S WITNESS
"THAT ANY AMOUNT WAS ACTUALLY PAID BY THE OLD COMPANY FOR CONTRACTOR'S
SERVICES  ...."  1 T.C. 163, 175.  THE TAX COURT ALSO CONCLUDED, AFTER
HEARING VAGUE TESTIMONY ON TWO SMALL DEDUCTIONS IN 1937 FOR DECORATING
AND REPAIRS, THAT THESE WERE NOT PROPERLY TAKEN, BECAUSE THE SAME
DEDUCTIONS FOR THE SAME PURPOSES HAD BEEN CLAIMED AND ALLOWED IN 1936. 
THESE ISSUES WERE WELL WITHIN THE PRINCIPLE OF THE DOBSON CASE.  THE
TAX COURT WAS UPHELD IN THESE RESPECTS BY THE COURT OF APPEALS AND WE
ACCEPT THESE FINDINGS. 

ACCORDINGLY, THE JUDGMENTS ARE REVERSED AND THE CAUSES ARE REMANDED
TO THE CIRCUIT COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  BANKRUPTCY ACT OF JULY 1, 1898, C. 541, 30 STAT. 544, AS AMENDED
BY THE ACT OF JUNE 22, 1938, C. 575, 52 STAT. 904, AND THE ACT OF JULY
1, 1940, C. 500, 54 STAT. 709, 11 U.S.C. SECS. 668, 670.  SECTION 270
IS COMPLEMENTARY TO SEC. 268, WITH WHICH ORIGINALLY IT WAS ENACTED AS
PART OF CHAPTER X OF THE CHANDLER ACT.  THE TWO SECTIONS ARE AS
FOLLOWS, THE ITALICIZED PORTION OF 270 CONSTITUTING THE WHOLE OF THE
AMENDMENT MADE IN 1940. 

"SEC. 268.  EXCEPT AS PROVIDED IN SECTION 270 OF THIS ACT, NO INCOME
OR PROFIT, TAXABLE UNDER ANY LAW OF THE UNITED STATES OR OF ANY STATE
NOW IN FORCE OR WHICH MAY HEREAFTER BE ENACTED, SHALL, IN RESPECT TO
THE ADJUSTMENT OF THE INDEBTEDNESS OF A DEBTOR IN A PROCEEDING UNDER
THIS CHAPTER, BE DEEMED TO HAVE ACCRUED TO OR TO HAVE BEEN REALIZED BY
A DEBTOR, BY A TRUSTEE PROVIDED FOR IN A PLAN UNDER THIS CHAPTER, OR BY
A CORPORATION ORGANIZED OR MADE USE OF FOR EFFECTUATING A PLAN UNDER
THIS CHAPTER BY REASON OF A MODIFICATION IN OR CANCELATION IN WHOLE OR
IN PART OF ANY OF THE INDEBTEDNESS OF THE DEBTOR IN A PROCEEDING UNDER
THIS CHAPTER." 

"SEC. 270.  IN DETERMINING THE BASIS OF PROPERTY FOR ANY PURPOSES OF
ANY LAW OF THE UNITED STATES OR OF A STATE IMPOSING A TAX UPON INCOME,
THE BASIS OF THE DEBTOR'S PROPERTY (OTHER THAN MONEY) OR OF SUCH
PROPERTY (OTHER THAN MONEY) AS IS TRANSFERRED TO ANY PERSON REQUIRED TO
USE THE DEBTOR'S BASIS IN WHOLE OR IN PART SHALL BE DECREASED BY AN
AMOUNT EQUAL TO THE AMOUNT BY WHICH THE INDEBTEDNESS OF THE DEBTOR, NOT
INCLUDING ACCRUED INTEREST UNPAID AND NOT RESULTING IN A TAX BENEFIT ON
ANY INCOME TAX RETURN, HAS BEEN CANCELED OR REDUCED IN A PROCEEDING
UNDER THIS CHAPTER, BUT THE BASIS OF ANY PARTICULAR PROPERTY SHALL NOT
BE DECREASED TO AN AMOUNT LESS THAN THE FAIR MARKET VALUE OF SUCH
PROPERTY AS OF THE DATE OF ENTRY OF THE ORDER CONFIRMING THE PLAN.  ANY
DETERMINATION OF VALUE IN A PROCEEDING UNDER THIS CHAPTER SHALL NOT BE
DEEMED A DETERMINATION OF FAIR MARKET VALUE FOR THE PURPOSES OF THIS
THE SECRETARY OF THE TREASURY, SHALL PRESCRIBE SUCH REGULATIONS AS HE
MAY DEEM NECESSARY IN ORDER TO REFLECT SUCH DECREASE IN BASIS FOR
FEDERAL INCOME-TAX PURPOSES AND OTHERWISE CARRY INTO EFFECT THE
PURPOSES OF THIS SECTION." 

FN2  CF. NOTE 1 SUPRA.  ORIGINALLY THE COMMISSIONER CONTENDED THAT
THE TAXPAYER'S BASIS FOR DEPRECIATION WAS THE MARKET VALUE OF THE
PROPERTY ON ACQUISITION IN 1935 AND THIS WAS A MAJOR ISSUE BEFORE THE
TAX COURT, CF. 1 T.C. 163.  BUT THE TAX COURT HELD PETITIONER HAD
ACQUIRED THE ASSETS IN CONNECTION WITH A REORGANIZATION AS COMPREHENDED
BY SEC. 112(G) OF THE REVENUE ACT OF 1934, AND THAT THEREFORE ITS BASIS
WAS THE ADJUSTED BASIS IN THE HANDS OF THE DEBTOR CORPORATION.  THIS
RULING WAS NOT CONTESTED ON APPEAL AND IS NOT IN QUESTION HERE. 

FN3  CF. NOTE 2 SUPRA. 

FN4  THE SECTION IS SET FORTH IN PART III OF THE OPINION. 

FN5  CONSEQUENTLY IT MADE NO RULING WITH REFERENCE TO THE ACCRUED
INTEREST, SINCE THE AMOUNT OF THE PRINCIPAL HELD TO HAVE BEEN
"CANCELLED" WAS MORE THAN SUFFICIENT TO BRING THE BASIS DOWN TO THE
FAIR MARKET VALUE IN 1935. 

FN6  CF. COMMISSIONER V. COMMODORE, 135 F.2D 89(C.C.A.6TH), HOLDING
THAT SEC. 276C(3) DOES NOT MAKE SECS. 268 AND 270 RETROACTIVELY
APPLICABLE TO TAX YEARS PRIOR TO 1938.  THE IMPORTANCE OF THE QUESTIONS
FOR THE FUTURE HAS BEEN MINIMIZED BY REPEAL OF SEC. 270 BY SEC. 121 OF
THE REVENUE ACT OF 1943, C. 63, 58 STAT. 21, 41. 

FN7  THE PROPERTY CONSISTS OF AN APARTMENT BUILDING, WITH
FURNISHINGS, IN CHICAGO.  IT WAS CONSTRUCTED IN 1924 BY THE CLARIDGE
BUILDING CORPORATION AT A COST IN EXCESS OF $385,000.  THE CORPORATION
AT THAT TIME ISSUED ITS 6 1/2 PER CENT FIRST MORTGAGE BONDS FOR
$340,000.  BY OCTOBER 1, 1931, THE BONDS OUTSTANDING AMOUNTED TO
$277,000.  IN CONSEQUENCE OF DEFAULTS, ON THAT DATE THE TRUSTEE FILED
HIS BILL OF FORECLOSURE, TOOK POSSESSION OF THE PROPERTY, AND
THEREAFTER COLLECTED THE RENTS.  A DECREE FOR FORECLOSURE WAS ENTERED
THE FOLLOWING FEBRUARY, BUT THERE WAS NO SALE AND THE FORECLOSURE
PROCEEDING WAS NEVER CONSUMMATED. 

ON JUNE 16, 1934, THE BUILDING CORPORATION FILED ITS VOLUNTARY
PETITION UNDER SEC. 77B.  IN NOVEMBER OF THAT YEAR A PLAN OF
REORGANIZATION WAS AGREED UPON, WHICH WAS CONFIRMED AND APPROVED MAY
14, 1935.  PURSUANT TO THIS THE TAXPAYER CORPORATION WAS ORGANIZED AND
THE PROPERTY WAS TRANSFERRED TO IT.  NINETY PER CENT OF ITS SHARES WERE
ISSUED TO TRUSTEES FOR DEPOSITING BONDHOLDERS AND TO NONDEPOSITING
BONDHOLDERS, ON THE BASIS OF ONE SHARE OF STOCK FOR EACH $100 FACE
AMOUNT OF BONDS; AND TEN PER CENT OF THE STOCK WAS ISSUED TO THE
SHAREHOLDERS IN THE OLD CORPORATION.  THE FINAL DECREE IN THE SEC. 77B
PROCEEDING WAS ENTERED MARCH 1, 1937. 

ACCORDING TO FINDINGS OF THE TAX COURT, THE FAIR MARKET VALUE OF THE
BUILDING, AS OF MAY 14, 1935(WHEN THE PLAN WAS CONFIRMED, CF. SEC. 270,
NOTE 1 SUPRA), WAS NOT IN EXCESS OF $141,000.  THE ADJUSTED BASIS OF
THE TAXPAYER'S PREDECESSOR IN THAT YEAR WAS $239,377.33, AT WHICH TIME
THE BUILDING HAD A REMAINING USEFUL LIFE OF TWENTY-FIVE YEARS.  THE
FAIR MARKET VALUE OF PETITIONER'S STOCK DID NOT EXCEED $45 PER SHARE IN
1935.  THE TAX COURT ALSO FOUND THAT THE CLARIDGE BUILDING CORPORATION
WAS INSOLVENT THROUGHOUT THE REORGANIZATION PROCEEDINGS. 

FN8  CF. TEXT INFRA AT NOTE 37. 

FN9  CF., E.G., HELVERING V. AMERICAN DENTAL CO., 318 U.S. 322;
KRAMAN DEV.  CO., 3 T.C. 342; PAUL, DEBT AND BASIS REDUCTION UNDER THE
CHANDLER ACT (1940) 15 TULANE L. REV. 1, 5, AND AUTHORITIES CITED IN
NOTES 17, 19. 

FN10  CF. PAUL, OP. CIT. SUPRA, NOTE 9; DARRELL, DISCHARGE OF
INDEBTEDNESS AND THE FEDERAL INCOME TAX (1940) 53 HARV. L. REV. 977;
DARRELL, CREDITORS' REORGANIZATIONS AND THE FEDERAL INCOME TAX (1944)
57 HARV. L. REV. 1009; BANKS, TREATISE ON BANKRUPTCY FOR ACCOUNTANTS
(1939) 80-92. 

FN11  BY ASSUMING THE EXISTENCE OF INCOME OR OTHER TAXABLE GAIN, BUT
PROVIDING FOR NONRECOGNITION, THE INQUIRY WHETHER GAIN OR PROFIT
ACTUALLY HAS ACCRUED IS WHOLLY AVOIDED. 

FN12  CF. AUTHORITIES CITED NOTE 10 SUPRA. 

FN13  CF. PAUL, STUDIES IN FEDERAL TAXATION, THIRD SERIES, 4, 5. 

FN14  SECS. 112, 113 OF THE REVENUE ACT OF 1934, C. 277, 48 STAT.
680, 704, 706. 

FN15  E.G., SEC. 112(G) OF THE 1934 ACT REDEFINED WHAT MIGHT BE A
REORGANIZATION UNDER THE REVENUE ACT.  THUS SEC. 112(G)(1)(A) INCLUDED
ONLY STATUTORY MERGERS OR CONSOLIDATIONS AS REVENUE REORGANIZATIONS,
BUT DROPPED THE EARLIER PARENTHETICAL CLAUSE; SEC. 112(G)(1)(B)
REQUIRED THAT THE ACQUISITION OF STOCK OR PROPERTY OF ANOTHER
CORPORATION BE IN EXCHANGE SOLELY FOR ALL OR A PART OF THE VOTING STOCK
OF THE ACQUIRING CORPORATION TO QUALIFY AS A REORGANIZATION.  HELVERING
V. SOUTHWEST CONSOLIDATED CORP., 315 U.S. 194; CF. SEC. 112(B)(5);
HELVERING V. CEMENT INVESTORS, 316 U.S. 527. 

FN16  CF. HELVERING V. ALABAMA ASPHALTIC LIMESTONE CO., 315 U.S. 179;
PALM SPRINGS HOLDING CORP. V. COMMISSIONER, 315 U.S. 185; BONDHOLDERS
COMMITTEE V. COMMISSIONER, 315 U.S. 189; HELVERING V. SOUTHWEST
CONSOLIDATED CORP., 315 U.S. 194; DARRELL, CREDITORS' REORGANIZATIONS
AND THE FEDERAL INCOME TAX (1940) 57 HARV. L. REV. 1009, 1017-1033. 

FN17  IBID. 

FN18  HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R.
8046, 75TH CONG., 1ST SESS., 352-354; HEARINGS BEFORE SUBCOMMITTEE OF
SENATE COMMITTEE ON THE JUDICIARY ON H.R. 8046, 75TH CONG., 2D SESS.,
137-139. 

FN19  SEE HOUSE COMMITTEE HEARINGS, 353-354; SENATE SUBCOMMITTEE
HEARINGS, 145-146. 

FN20  H. REP. NO. 2372, 76TH CONG., 3D SESS., 2-4; S. REP. NO. 1857,
76TH CONG., 3D SESS., 1-5; HEARINGS BEFORE A SPECIAL SUBCOMMITTEE ON
BANKRUPTCY AND REORGANIZATION OF THE HOUSE JUDICIARY COMMITTEE ON H.R.
9864, 76TH CONG., 3D SESS., 3, 5-11, 13-14, 16, 18-31, 54; CF. PAUL,
DEBT AND BASIS REDUCTION UNDER THE CHANDLER ACT (1940) 15 TULANE L.
REV. 1, 5.    FN21  CF. DARRELL, CREDITORS' REORGANIZATIONS AND THE
FEDERAL INCOME TAX (1940) 57 HARV. L. REV. 1009, 1016. 

FN22  PAUL, DEBT AND BASIS REDUCTION UNDER THE CHANDLER ACT (1940) 15
TULANE L. REV. 1, 5. 

FN23  HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R.
8046, 75TH CONG., 1ST SESS., 352-354; HEARINGS BEFORE SUBCOMMITTEE OF
SENATE COMMITTEE ON THE JUDICIARY ON H.R. 8046, 75TH CONG., 2D SESS.,
137-139, 145-146; HEARINGS BEFORE A SPECIAL SUBCOMMITTEE ON BANKRUPTCY
AND REORGANIZATION OF THE HOUSE JUDICIARY COMMITTEE ON H.R. 9864, 76TH
CONG., 3D SESS., 52-59, 66-67.  A SIGNIFICANT LETTER WRITTEN BY
CONGRESSMAN CHANDLER SHORTLY AFTER THE PASSAGE OF THE CHANDLER ACT WAS
SUBMITTED AT THE 1940 HEARINGS (HEARINGS ON H.R. 9864, AT 52) AND WAS
RECEIVED BY THE SUBCOMMITTEE INTO THE RECORD.  FOR SOME REASON IT WAS
NOT PUBLISHED IN THE RECORD, ALTHOUGH THE CHANDLER LETTER WAS REFERRED
TO IN A LETTER WHICH WAS PUBLISHED (HEARINGS ON H.R. 9864, AT 56).  THE
CHANDLER LETTER MAY BE FOUND IN BANKS, TREATISE ON BANKRUPTCY FOR
ACCOUNTANTS (1939) 84-85. 

FN24  CF. NOTE 1 SUPRA. 

FN25  PETITIONER'S STATEMENT OF THE ARGUMENT DOES NOT TAKE ACCOUNT
EXPRESSLY OF THE OBVIOUS DIFFERENCE BETWEEN WHAT HE CALLS "EXCEPTIONS
(1) AND (2)," ON THE ONE HAND, AND "EXCEPTION (3)," ON THE OTHER.  (1)
AND (2) ARE CLEARLY TRUE SUBSTANTIVE EXCEPTIONS TO THE GENERAL MANDATE
OF "C."  THAT IS, THEY PROVIDE INSTANCES IN WHICH SEC. 77B SHALL NOT
CONTINUE TO OPERATE, CONTRARY TO THE GENERAL PROVISION OF "C" FOR ITS
CONTINUED EFFECTIVENESS IN PENDING PROCEEDINGS.  LIKE EFFECT HOWEVER
CANNOT BE GIVEN TO (3).  IT DOES NOT PURPORT EXPRESSLY TO PROVIDE FOR
NONOPERATION OF 77B.  RATHER ITS FORCE IS TO PROVIDE FOR AN EXTENDED
OPERATION OF SECS. 268 AND 270, WITH REFERENCE TO 77B PROCEEDINGS. 

THE FORMAL DIFFICULTY HOWEVER IS MORE APPARENT THAN SUBSTANTIAL. 
NOTHING IN (3) IS AT ALL INCONSISTENT WITH ITS LIMITATION TO PENDING
77B PROCEEDINGS.  AND THE FORMAL CONNECTION WITH "C," THOUGH AWKWARDLY
MADE, AFFORDS SOME EVIDENCE OF PURPOSE TO LIMIT THE EFFECTS OF (3) TO
SUCH PROCEEDINGS.  THE SAME CONSEQUENCE, HOWEVER, WOULD SEEM TO BE
DICTATED, IF THE FORMAL CONNECTION, AS AN "EXCEPTION" TO "C," WERE
DISREGARDED AND (3) WERE TREATED AS A SEPARATE SUBSECTION, LIKE THE
CORRESPONDING PROVISIONS OF OTHER CHAPTERS.  CF. NOTE 35 INFRA.  THE
SUBSTANTIVE RELATIONSHIP WITH THE SUBJECT MATTER AND PURPOSES OF THE
PRECEDING PROVISIONS OF THE SECTION AS A WHOLE WOULD REMAIN.  CF. TEXT
INFRA PART III. 

FN26  IT IS TRUE PETITIONER DID NOT PRESENT THIS INTERPRETATION IN
THE COURT OF APPEALS OR IN THE TAX COURT.  IT WAS ADVANCED AS A
QUESTION PRESENTED ON THE PETITION FOR A WRIT OF CERTIORARI, THE MATTER
HAS BEEN ARGUED HERE, AND THE GOVERNMENT DOES NOT CLAIM SURPRISE.  THE
ISSUE OF RETROACTIVITY AND PROPER INTERPRETATION OF SEC. 276C(3) HAS
BEEN A FOCAL POINT OF THE CONTROVERSY IN THE COURT OF APPEALS AND IN
THE TAX COURT.  PETITIONER HAS MAINTAINED THROUGHOUT THAT THERE WAS NO
TAX DEFICIENCY FOR EITHER 1938 OR ANY PRIOR YEAR.  THUS THE ISSUE HAS
BEEN PRESENTED AT ALL STAGES, ALTHOUGH A THEORY TO SUSTAIN PETITIONER'S
POSITION CONCERNING IT HAS BEEN ADVANCED HERE WHICH WAS NOT PUT FORWARD
IN PRIOR STAGES OF THE LITIGATION. 

FN27  IT MAY BE NOTED THAT THE TERMS OF SEC. 276C(3) MAKE NO
PROVISION CONCERNING THE STATUTE OF LIMITATIONS.  THEY APPLY LITERALLY
TO ALL PRIOR 77B PROCEEDINGS.  THE COMMISSIONER AND THE TREASURY HAVE
NOT INTERPRETED THE SECTION TO MAKE SECS. 268 AND 270 APPLY BEYOND THE
TIME WHEN THE GENERAL STATUTE HAS RUN.  BUT THIS INTERPRETATION IS NOT
NECESSARILY CONTROLLING, IN THE FACE OF THE BREADTH OF THE LANGUAGE
USED, IF IT IS TAKEN AS UNLIMITED BY ITS CONTEXT.  NO ASSESSMENT WAS
MADE IN THIS CASE FOR 1934 BECAUSE THE PETITIONER CORPORATION WAS NOT
ORGANIZED UNTIL 1935. 

FN28  CF. PART II OF THIS OPINION. 

FN29  THE SECTION COMPRISES THE WHOLE OF ARTICLE XVI OF CHAPTER X,
ENTITLED "WHEN CHAPTER TAKES EFFECT."  IT IS AS FOLLOWS: 

"SEC. 276.  A. THIS CHAPTER SHALL APPLY TO DEBTORS BY WHOM OR AGAINST
WHOM PETITIONS ARE FILED ON AND AFTER THE EFFECTIVE DATE OF THIS
AMENDATORY ACT AND TO THE CREDITORS AND STOCKHOLDERS THEREOF, WHETHER
THEIR RIGHTS, CLAIMS, OR INTERESTS OF ANY NATURE WHATSOEVER HAVE BEEN
ACQUIRED OR CREATED BEFORE OR AFTER SUCH DATE; 

"B.  A PETITION MAY BE FILED UNDER THIS CHAPTER IN A PROCEEDING IN
BANKRUPTCY WHICH IS PENDING ON SUCH DATE, AND A PETITION MAY BE FILED
UNDER THIS CHAPTER NOTWITHSTANDING THE PENDENCY ON SUCH DATE OF A
PROCEEDING IN WHICH A RECEIVER OR TRUSTEE OF ALL OR ANY PART OF THE
PROPERTY OF A DEBTOR HAS BEEN APPOINTED OR FOR WHOSE APPOINTMENT
APPLICATION HAS BEEN MADE IN A COURT OF THE UNITED STATES OR OF ANY
STATE; 

"C.  THE PROVISIONS OF SECTIONS 77A AND 77B OF CHAPTER VIII, AS
AMENDED, OF THE ACT ENTITLED 'AN ACT TO ESTABLISH A UNIFORM SYSTEM OF
BANKRUPTCY THROUGHOUT THE UNITED STATES', APPROVED JULY 1, 1898, SHALL
CONTINUE IN FULL FORCE AND EFFECT WITH RESPECT TO PROCEEDINGS PENDING
UNDER THOSE SECTIONS UPON THE EFFECTIVE DATE OF THIS AMENDATORY ACT,
EXCEPT THAT - 

"(1)  IF THE PETITION IN SUCH PROCEEDINGS WAS APPROVED WITHIN THREE
MONTHS PRIOR TO THE EFFECTIVE DATE OF THIS AMENDATORY ACT, THE
PROVISIONS OF THIS CHAPTER SHALL APPLY IN THEIR ENTIRETY TO SUCH
PROCEEDINGS; AND 

"(2)  IF THE PETITION IN SUCH PROCEEDINGS WAS APPROVED MORE THAN
THREE MONTHS BEFORE THE EFFECTIVE DATE OF THIS AMENDATORY ACT, THE
PROVISIONS OF THIS CHAPTER SHALL APPLY TO SUCH PROCEEDINGS TO THE
EXTENT THAT THE JUDGE SHALL DEEM THEIR APPLICATION PRACTICABLE; AND 

"(3)  SECTIONS 268 AND 270 OF THIS ACT SHALL APPLY TO ANY PLAN
CONFIRMED UNDER SECTION 77B BEFORE THE EFFECTIVE DATE OF THIS
AMENDATORY ACT AND TO ANY PLAN WHICH MAY BE CONFIRMED UNDER SECTION 77B
ON AND AFTER SUCH EFFECTIVE DATE, EXCEPT THAT THE EXEMPTION PROVIDED BY
THAT ANY SUCH PLAN HAD FOR ONE OF ITS PRINCIPAL PURPOSES THE AVOIDANCE
OF INCOME TAXES, AND EXCEPT FURTHER THAT WHERE SUCH PLAN HAS NOT BEEN
CONFIRMED ON AND AFTER SUCH EFFECTIVE DATE, SECTION 269 OF THIS ACT
SHALL APPLY WHERE PRACTICABLE AND EXPEDIENT."  52 STAT. 905, 11 U.S.C.
SEC. 676. 

FN30  I.E., REFUSAL OF CONFIRMATION WHERE THE PLAN HAD NOT BEEN
APPROVED (CF. SEC. 269) AND DISALLOWANCE OF THE TAX EXEMPTION, IF THE
PLAN HAD BEEN CONFIRMED.  FOR TAX PURPOSES THESE COME TO THE SAME
RESULT, A FACT ALSO INDICATIVE THAT BOTH EXCEPTIONS WERE INTENDED TO
OPERATE WITHIN THE GENERAL LIMITATION OF PENDING PROCEEDINGS. 

FN31  S. REP. NO. 1916, 75TH CONG., 3D SESS., 39; HEARINGS BEFORE THE
HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 8046, 75TH CONG., 1ST SESS.,
375-376, 383; HEARINGS BEFORE SUBCOMMITTEE OF THE SENATE COMMITTEE ON
THE JUDICIARY ON H.R. 8046, 75TH CONG., 2D SESS., 6-7. 

FN32  CF. NOTE 34 AND TEXT INFRA. 

FN33  "EXCEPT AS OTHERWISE PROVIDED IN THIS AMENDATORY ACT, THE
PROVISIONS OF THIS AMENDATORY ACT SHALL GOVERN PROCEEDINGS SO FAR AS
PRACTICABLE IN CASES PENDING WHEN IT TAKES EFFECT; BUT PROCEEDINGS IN
CASES THEN PENDING TO WHICH THE PROVISIONS OF THIS AMENDATORY ACT ARE
NOT APPLICABLE SHALL BE DISPOSED OF CONFORMABLY TO THE PROVISIONS OF
SAID ACT APPROVED JULY 1, 1898, AND THE ACTS AMENDATORY THEREOF AND
SUPPLEMENTARY THERETO."  ACT OF JUNE 22, 1938, C. 575, SEC. 6B, 52
STAT. 940. 

FN34  CHAPTERS XI, XII AND XIII DEAL RESPECTIVELY WITH ARRANGEMENTS,
REAL PROPERTY ARRANGEMENTS BY PERSONS OTHER THAN CORPORATIONS, AND WAGE
EARNERS' PLANS.  EACH OF THESE CHAPTERS EMBODIES SECTIONS CORRESPONDING
IN PRINCIPLE TO SECS. 268, 270 AND 276.  THOSE COMPARABLE TO SEC. 276
ARE SEC. 399 IN CHAPTER XI, SEC. 526 IN CHAPTER XII, AND SEC. 686 IN
CHAPTER XIII.  EACH, LIKE SEC. 276, CONTAINS THE WHOLE OF AN ARTICLE
ENTITLED "WHEN CHAPTER TAKES EFFECT."  EACH CONTAINS FOUR SUBSECTIONS
(WITH A FIFTH IN SEC. 686), CORRESPONDING TO SUBSECTIONS A, B AND C OF
SEC. 276 AND SUBDIVISION C(3) OF THAT SECTION.  THUS, SECS. 399(4),
526(4), AND 686(4) CORRESPOND TO SUBDIVISION 276C(3).  THEY DIFFER FROM
IT HOWEVER IN THAT THEY ARE FORMALLY INDEPENDENT SUBSECTIONS, WHEREAS
SEC. 276C(3) IS FORMALLY A PART OF SUBSECTION 276C, DEPENDENT UPON ITS
GENERAL MANDATE, AND THUS PERHAPS EVEN MORE CLEARLY LIMITED BY THE
PRECEDING PROVISIONS.  CF. NOTE 25 SUPRA. 

INSTANCES OF LEGISLATION PECULIAR TO CORPORATE REORGANIZATIONS UNDER
CHAPTER X. THEY ARE RATHER PARTICULAR INSTANCES OF A GENERAL PATTERN OF
LEGISLATION, RELATING TO A COMMON PROBLEM RUNNING THROUGH CHAPTERS X,
XI, XII AND XIII, NAMELY, TO WHAT EXTENT THE CHANDLER ACT'S TERMS
SHOULD BE APPLIED TO PENDING REORGANIZATIONS, ARRANGEMENTS, WAGE
EARNERS' PLANS, ETC.  BECAUSE OF DETAILED DIFFERENCES IN THE SITUATIONS
AFFECTED, THE PROVISIONS CORRESPONDING TO SECS. 268, 270 AND 276 VARY
SOMEWHAT IN DETAIL.  BUT THE SIMILARITIES RATHER THAN THE VARIATIONS,
WHETHER IN SITUATION OR IN TERMS, ARE SIGNIFICANT FOR PRESENT
PURPOSES. 

FN35  THUS, IN ITS BRIEF THE GOVERNMENT ASSERTS, CONCERNING
PETITIONER'S ARGUMENT THAT SECS. 268 AND 270 APPLY ONLY TO "PENDING"
PROCEEDINGS:  "THIS CONTENTION, ALTHOUGH PLAUSIBLE, NEGLECTS THE FACT
THAT SECTIONS 268 AND 270 ARE ESSENTIALLY TAX PROVISIONS."  TO THIS IT
MAY BE ANSWERED THAT THE SECTIONS, IN ORIGIN, PURPOSE AND FUNCTION WERE
"ESSENTIALLY REORGANIZATION PROVISIONS" OR, TO PUT IT DIFFERENTLY,
"ESSENTIALLY TAX RELIEF PROVISIONS."  THE GOVERNMENT'S EMPHASIS UPON
THE SECTIONS AS TAXING MEASURES IGNORES THEIR PRIMARY OBJECT AND
FUNCTION, WHICH WERE TO PROVIDE TAX RELIEF FOR PARTIES UNDERTAKING
REORGANIZATION AND TO PREVENT THE CLOGGING EFFECTS OF THE EXISTING TAX
LAWS UPON THE OPERATION OF THE CHANDLER ACT.  IT ALSO FAILS TO NOTE
THAT RETROACTIVE APPLICATION, IN CLOSED PROCEEDINGS, COULD HAVE NO
POSSIBLE RELATION TO THE LATTER AIM.  THE MATTER IS ONE OF EMPHASIS. 
BUT IT IS NOT PERMISSIBLE, IN CONSTRUING PROVISIONS DESIGNED TO
ENCOURAGE REORGANIZATION, BY GIVING RELIEF FROM TAXES, TO TAKE THEM BY
SUCH AN EMPHASIS AS IF THEY WERE FRAMED EXCLUSIVELY FOR RAISING
REVENUE. 

FN36  THAT IS, WITH SEC. 270 AS OPERATING INDEPENDENTLY OF SEC. 268,
TO REQUIRE REDUCTION IN BASIS EVEN THOUGH NO ACTUAL TAX BENEFIT HAS
BEEN DERIVED UNDER 268. 

FN37  CF. TEXT AT NOTE 8 SUPRA.
..END :







COMMISSIONER V. HARMON, 323 U.S. 44 


NO. 33.  ARGUED OCTOBER 18, 19, 1944.  - DECIDED NOVEMBER 20, 1944.  -
139 F.2D 211, REVERSED. 


HUSBAND AND WIFE WHO ELECT TO HAVE THE OPTIONAL OKLAHOMA COMMUNITY
PROPERTY LAW APPLY TO THEM ARE NOT ENTITLED THEREAFTER TO DIVIDE THE
COMMUNITY INCOME EQUALLY BETWEEN THEM FOR PURPOSES OF FEDERAL INCOME
TAX.  POE V. SEABORN, 282 U.S. 101, DISTINGUISHED.  P. 45. 

COMMISSIONER OF INTERNAL REVENUE V. HARMON. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 321 U.S. 760, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE TAX COURT, 1 T.C. 40, WHICH REVERSED THE COMMISSIONER'S
DETERMINATION OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION POSED BY THIS CASE IS WHETHER, UPON A STATE'S ADOPTION
OF AN OPTIONAL COMMUNITY PROPERTY LAW, A HUSBAND AND WIFE WHO ELECT TO
COME UNDER THAT LAW ARE ENTITLED THEREAFTER TO DIVIDE THE COMMUNITY
INCOME EQUALLY BETWEEN THEM FOR PURPOSES OF FEDERAL INCOME TAX. 

JULY 29, 1939, OKLAHOMA ADOPTED A COMMUNITY PROPERTY LAW OPERATIVE
ONLY IF AND WHEN HUSBAND AND WIFE ELECT TO AVAIL OF ITS PROVISIONS.  IN
CONFORMITY TO THE REQUIREMENTS OF THE STATUTE, THE RESPONDENT AND HIS
WIFE FILED, OCTOBER 26, 1939, A WRITTEN ELECTION TO HAVE THE LAW APPLY
TO THEM.  FROM NOVEMBER 1 TO DECEMBER 31, 1939, THEY RECEIVED INCOME
CONSISTING OF HIS SALARY, DIVIDENDS FROM HIS STOCKS, DIVIDENDS FROM HER
STOCKS, INTEREST ON OBLIGATIONS DUE HIM, DISTRIBUTION OF PROFITS OF A
PARTNERSHIP OF WHICH HE WAS A MEMBER, AND OIL ROYALTIES DU     EACH OF
THEM.  THE ACT CONSTITUTES ALL OF THESE RECEIPTS COMMUNITY INCOME.  THE
TAXPAYER AND HIS WIFE FILED SEPARATE INCOME TAX RETURNS FOR 1939 IN
WHICH EACH REPORTED ONE HALF OF THE NOVEMBER AND DECEMBER INCOME.  THE
COMMISSIONER DETERMINED A DEFICIENCY IN THE VIEW THAT THE RESPONDENT
WAS TAXABLE ON ALL OF THE INCOME DERIVED FROM HIS EARNINGS AND FROM HIS
SEPARATE PROPERTY, BUT ON NONE OF THAT DERIVED FROM HIS WIFE'S SEPARATE
PROPERTY. 

THE TAX COURT SUSTAINED THE METHOD ADOPTED BY THE RESPONDENT AND HIS
WIFE.  FN1  THE CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING,
AFFIRMED THE DECISION.  FN2  BOTH COURTS RELIED ON POE V. SEABORN, 282
U.S. 101.  THEY CONCLUDED THAT, AFTER ELECTION TO TAKE THE BENEFIT OF
THE LAW, THE WIFE BECAME VESTED WITH ONE HALF OF ALL COMMUNITY INCOME
AS THEREIN DEFINED.  AND, SINCE THIS COURT HELD IN POE V. SEABORN THAT
THE COMMUNITY INCOME THERE INVOLVED WAS, AS TO ONE HALF, THE INCOME
"OF" THE WIFE WITHIN THE INTENT OF WHAT IS NOW SEC. 11 OF THE INTERNAL
REVENUE CODE,  FN3 BECAUSE SHE HAD AN ORIGINAL AND NOT A DERIVATIVE
VESTED PROPERTY INTEREST THEREIN, IT MUST FOLLOW THAT, UNDER THE
OKLAHOMA LAW, ONE HALF OF THE INCOME IS THE WIFE'S FOR INCOME TAX
PURPOSES.  THEY OVERRULED THE PETITIONER'S CONTENTION THAT, AS THE
STATUTE PERMITS VOLUNTARY ACTION WHICH EFFECTS A TRANSFER OF RIGHTS OF
THE HUSBAND AND WIFE, THE CASE IS GOVERNED BY LUCAS V. EARL, 281 U.S.
111, AND OTHER DECISIONS OF LIKE IMPORT.  FN4  WE HOLD THAT THE
PETITIONER'S VIEW IS THE RIGHT ONE. 

UNDER LUCAS V. EARL AN ASSIGNMENT OF INCOME TO BE EARNED OR TO ACCRUE
IN THE FUTURE, EVEN THOUGH AUTHORIZED BY STATE LAW AND IRREVOCABLE IN
CHARACTER, IS INEFFECTIVE TO RENDER THE INCOME IMMUNE FROM TAXATION AS
THAT OF THE ASSIGNOR.  ON THE OTHER HAND, IN THOSE STATES WHICH, BY
INHERITANCE OF SPANISH LAW, HAVE ALWAYS HAD A LEGAL COMMUNITY PROPERTY
SYSTEM, WHICH VESTS IN EACH SPOUSE ONE HALF OF THE COMMUNITY INCOME AS
IT ACCRUES, EACH IS ENTITLED TO RETURN ONE HALF OF THE INCOME AS THE
BASIS OF FEDERAL INCOME TAX.  COMMUNITIES ARE OF TWO SORTS,  -
CONSENSUAL AND LEGAL.  A CONSENSUAL COMMUNITY ARISES OUT OF CONTRACT. 
IT DOES NOT SIGNIFICANTLY DIFFER IN ORIGIN OR NATURE FROM SUCH A STATUS
AS WAS IN QUESTION IN LUCAS V. EARL, WHERE BY CONTRACT FUTURE INCOME OF
THE SPOUSES WAS TO VEST IN THEM AS JOINT TENANTS.  IN POE V. SEABORN,
SUPRA, THE COURT WAS NOT DEALING WITH A CONSENSUAL COMMUNITY BUT ONE
MADE AN INCIDENT OF MARRIAGE BY THE INVETERATE POLICY OF THE STATE.  IN
THAT CASE THE COURT WAS FACED WITH THESE FACTS:  THE LEGAL COMMUNITY
SYSTEM OF THE STATES IN QUESTION LONG ANTEDATED THE SIXTEENTH AMENDMENT
AND THE FIRST REVENUE ACT ADOPTED THEREUNDER.  UNDER THAT SYSTEM, AS A
RESULT OF STATE POLICY, AND WITHOUT ANY ACT ON THE PART OF EITHER
SPOUSE, ONE HALF OF THE COMMUNITY INCOME VESTED IN EACH SPOUSE AS THE
INCOME ACCRUED AND WAS, IN LAW, TO THAT EXTENT, THE INCOME OF THE
SPOUSE.  THE TREASURY HAD CONSISTENTLY RULED THAT THE REVENUE ACT
APPLIED TO THE PROPERTY SYSTEMS OF THOSE STATES AS IT FOUND THEM AND
CONSEQUENTLY HUSBAND AND WIFE WERE ENTITLED EACH TO RETURN ONE HALF THE
COMMUNITY INCOME.  THE CONGRESS WAS FULLY CONVERSANT OF THESE RULINGS
AND THE PRACTICE THEREUNDER, WAS ASKED TO ALTER THE PROVISIONS OF LATER
REVENUE ACTS TO CHANGE THE INCIDENCE OF THE TAX, AND REFUSED TO DO SO.
IN THESE CIRCUMSTANCES, THE COURT DECLINED TO APPLY THE DOCTRINE OF
LUCAS V. EARL. 

IN OKLAHOMA, PRIOR TO THE PASSAGE OF THE COMMUNITY PROPERTY LAW, THE
RULES OF THE COMMON LAW, AS MODIFIED BY STATUTE, REPRESENTED THE
SETTLED POLICY OF THE STATE CONCERNING THE RELATION OF HUSBAND AND
WIFE.  A HUSBAND'S INCOME FROM EARNINGS WAS HIS OWN; THAT FROM HIS
SECURITIES WAS HIS OWN.  THE SAME WAS TRUE OF THE WIFE'S INCOME.  PRIOR
TO 1939, OKLAHOMA HAD NO POLICY WITH RESPECT TO THE ARTIFICIAL BEING
KNOWN AS A COMMUNITY.  NOR CAN WE SAY THAT, SINCE THAT YEAR, THE STATE
HAS ANY NEW POLICY, FOR IT HAS NOT ADOPTED, AS AN INCIDENT OF MARRIAGE,
ANY LEGAL COMMUNITY PROPERTY SYSTEM.  THE MOST THAT CAN BE SAID IS THAT
THE PRESENT POLICY OF OKLAHOMA IS TO PERMIT SPOUSES, BY CONTRACT, TO
ALTER THE STATUS WHICH THEY WOULD OTHERWISE HAVE UNDER THE PREVAILING
PROPERTY SYSTEM IN THE STATE. 

SUCH LEGISLATIVE PERMISSION CANNOT ALTER THE TRUE NATURE OF WHAT IS
DONE WHEN HUSBAND AND WIFE, AFTER MARRIAGE, ALTER CERTAIN OF THE
INCIDENTS OF THAT RELATION BY MUTUAL CONTRACT.  MARRIED PERSONS IN MANY
NONCOMMUNITY STATES MIGHT, BY AGREEMENT, MAKE A SIMILAR ALTERATION IN
THEIR PROSPECTIVE RIGHTS TO THE FRUITS OF EACH OTHER'S LABORS OR
INVESTMENTS, AS WAS DONE IN LUCAS V. EARL.  THIS WOULD SEEM TO BE
POSSIBLE IN EVERY STATE WHERE HUSBAND AND WIFE ARE PERMITTED FREELY TO
CONTRACT WITH EACH OTHER RESPECTING PROPERTY THEREAFTER ACQUIRED BY
EITHER. 

MUCH OF COUNSEL'S ARGUMENT IS ADDRESSED TO SPECIFIC FEATURES OF THE
OKLAHOMA COMMUNITY PROPERTY LAW AND COMPARISON OF THOSE FEATURES WITH
THE LAWS OF THE TRADITIONAL COMMUNITY PROPERTY STATES.  WE LAY THIS
ASIDE AND ASSUME THAT, ONCE ESTABLISHED, THE COMMUNITY PROPERTY STATUS
OF OKLAHOMA SPOUSES IS AT LEAST EQUAL TO THAT OF MAN AND WIFE IN ANY
COMMUNITY PROPERTY STATE WITH WHOSE LAW WE WERE CONCERNED IN POE V.
SEABORN.  TO CITE EXAMPLES:  WE THINK IT IMMATERIAL, FOR PRESENT
PURPOSES, THAT THE COMMUNITY STATUS MAY OR MAY NOT BE ALTERED BY
CONTRACT BETWEEN THE PARTIES, MAY OR MAY NOT BE AVOIDED BY ANTENUPTIAL
AGREEMENTS, OR THAT CERTAIN ASSETS OF A SPOUSE MAY OR MAY NOT BE
CLASSED AS "SEPARATE" PROPERTY EXCLUDED FROM THE COMMUNITY.  THE
IMPORTANT FACT IS THAT THE COMMUNITY SYSTEM OF OKLAHOMA IS NOT A
SYSTEM, DICTATED BY STATE POLICY, AS AN INCIDENT OF MATRIMONY. 

OUR DECISIONS IN UNITED STATES V. ROBBINS, 296 U.S. 315, AND IN
UNITED STATES V. MALCOLM, 282 U.S. 792, DO NOT, AS RESPONDENT ARGUES,
REQUIRE AN AFFIRMANCE OF THE JUDGMENT.  THOSE CASES DEALT WITH THE
COMMUNITY PROPERTY LAW OF CALIFORNIA.  THE CONCEPT OF COMMUNITY
PROPERTY CAME TO CALIFORNIA FROM THE SPANISH LAW, AS IT DID IN OTHER
STATES WHOSE TERRITORY HAD ONCE BEEN A PART OF THE SPANISH POSSESSIONS
ON THIS CONTINENT.  THERE HAD BEEN A SERIES OF DECISIONS IN CALIFORNIA
WITH RESPECT TO THE CHARACTER OF THE WIFE'S RIGHTS IN THE COMMUNITY. 
THE COURTS HAD AT TIMES INDICATED THAT THIS WAS A VESTED PROPERTY RIGHT
AND ON OTHER OCCASIONS HAD INDICATED THAT ALL THE WIFE HAD WAS A MERE
EXPECTANCY WHICH RIPENED ON THE DEATH OF THE HUSBAND.  PRIOR TO THE
DECISION IN THE ROBBINS CASE THE SUPREME COURT OF THE STATE HAD FINALLY
RULED THAT HER INTEREST WAS OF THE LATTER SORT.  THE TREASURY HAD TAKEN
THE SAME VIEW AND HAD DENIED CALIFORNIA SPOUSES THE PRIVILEGE OF EACH
RETURNING ONE-HALF OF THE COMMUNITY INCOME.  IN VIEW OF THE DECISION OF
THE SUPREME COURT OF CALIFORNIA THIS COURT SUSTAINED THE TREASURY'S
RULING IN THE ROBBINS CASE.  THIS WAS IN SPITE OF THE FACT THAT OVER A
PERIOD OF YEARS THE LEGISLATURE OF CALIFORNIA HAD ADOPTED STATUTES
WHICH INDICATED THAT THE WIFE'S INTEREST WAS IN FACT MORE THAN A MERE
EXPECTANCY.  IN 1927 THE CALIFORNIA LEGISLATURE, IN AN EFFORT TO SETTLE
THIS CONTROVERSY OF LONG STANDING, ADOPTED A STATUTE DECLARING THAT THE
WIFE'S INTEREST IN THE COMMUNITY WAS A PRESENT VESTED INTEREST.  THEN
CAME THE MALCOLM CASE IN WHICH THE CIRCUIT COURT OF APPEALS FOR THE
NINTH CIRCUIT CERTIFIED TO THIS COURT TWO QUESTIONS:  FIRST, WHETHER IN
VIEW OF THE LAW OF CALIFORNIA THE HUSBAND MUST RETURN THE ENTIRE
INCOME, AND, SECOND, WHETHER THE WIFE, UNDER THE ACT OF 1927, HAD SUCH
AN INTEREST IN THE COMMUNITY INCOME THAT SHE SHOULD SEPARATELY REPORT
AND PAY TAX ON ONE HALF THEREOF.  IN A PER CURIAM OPINION THIS COURT
ANSWERED THE FIRST QUESTION "NO" AND THE SECOND QUESTION "YES."  TWO
CIRCUMSTANCES MUST BE BORNE IN MIND IN CONNECTION WITH THAT DECISION. 
THE INCIDENTS OF THE SYSTEM HAD BEEN THE SUBJECT OF LITIGATION FOR
YEARS.  THE FINAL ACTION OF THE LEGISLATURE COULD WELL BE TAKEN AS
DECLARATORY OF WHAT IT INVOLVED AND IMPLIED AS RESPECTS THE INTERESTS
OF HUSBANDS AND WIVES.  THUS THE COURT WAS NOT REQUIRED TO MEET ANY
SUCH QUESTION AS IS PRESENTED HERE BY THE PERMISSIVE INITIATION OF
COMMUNITY PROPERTY STATUS.  IN ADDITION, INSPECTION OF THE BRIEFS AND
OF THE REPORT WILL SHOW THAT THE COURT'S ACTION WAS BOTTOMED ON A
CONCESSION BY THE GOVERNMENT THAT "WITH RESPECT TO THE PARTICULAR
INCOME HERE IN QUESTION, THE INTERESTS OF THE HUSBAND AND WIFE WERE
SUCH AS TO BRING THE CASE WITHIN THE RULINGS" IN POE V. SEABORN AND
RELATED CASES, "BECAUSE OF AMENDMENTS OF THE CALIFORNIA STATUTES MADE
SINCE UNITED STATES V. ROBBINS, 269 U.S. 315, WAS DECIDED."  IT IS
APPARENT, THEREFORE, THAT OUR DECISIONS DEALING WITH CALIFORNIA LAW DO
NOT ANSWER THE QUESTION PRESENTED IN THIS CASE. 

THE JUDGMENT IS REVERSED. 

FN1  1 T.C. 40. 

FN2  139 F.2D 211. 

FN3  26 U.S.C. SEC. 11.  THE SECTION PROVIDES THAT THE TAX SHALL BE
LEVIED "UPON THE NET INCOME OF EVERY INDIVIDUAL."  THE LANGUAGE HAS
BEEN THE SAME IN EACH OF THE REVENUE ACTS. 

FN4  SEE ALSO BURNET V. LEININGER, 285 U.S. 136; HELVERING V. HORST,
311 U.S. 112; HELVERING V. EUBANK, 311 U.S. 122. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING. 

THE FEDERAL INCOME TAX LAW MAKES A DISCRIMINATION IN FAVOR OF THE
COMMUNITY PROPERTY STATES.  IN 1937 THE SECRETARY OF THE TREASURY
POINTED OUT  FN1  THAT 

"A NEW YORK RESIDENT WITH A SALARY OF $100,000 PAYS ABOUT $32,525
FEDERAL INCOME TAX; A CALIFORNIAN WITH THE SAME SALARY MAY CAUSE ONE
HALF TO BE REPORTED BY HIS WIFE AND THE FEDERAL INCOME TAXES PAYABLE BY
THE TWO WILL BE ONLY $18,626.  THE TOTAL LOSS OF REVENUE DUE TO THIS
UNJUSTIFIABLE DISCRIMINATION AGAINST THE RESIDENTS OF 40 STATES RUNS
INTO THE MILLIONS."  THAT DISCRIMINATION HAS BECOME INCREASINGLY SHARP
AS SURTAX RATES HAVE INCREASED.  FN2  THE SOURCE OF THAT DISCRIMINATION
IS TO BE FOUND IN DECISIONS OF THIS COURT. 

THOSE DECISIONS  FN3  ARE BEST ILLUSTRATED BY POE V. SEABORN, 282
U.S. 101, WHICH INVOLVED THE COMMUNITY PROPERTY SYSTEM OF THE STATE OF
WASHINGTON.  THEY HELD THAT THE HUSBAND NEED PAY THE FEDERAL INCOME TAX
ON ONLY ONE-HALF OF HIS SALARY AND OTHER INCOME FROM THE COMMUNITY,
SINCE THE OTHER HALF OF THOSE EARNINGS FROM THEIR VERY INCEPTION
BELONGED TO HIS WIFE.  THE COLLECTOR HAD ARGUED THAT THE CONTROL
EXERCISED BY THE HUSBAND OVER THE COMMUNITY WAS SUFFICIENT TO MAKE HIM
LIABLE FOR THE TAX ON THE FULL AMOUNT.  THAT RESULT HAD INDEED BEEN
INDICATED BY MR. JUSTICE HOLMES SPEAKING FOR THE COURT IN UNITED STATES
V. ROBBINS, 269 U.S. 315, 327.  AND IT HAS BEEN STRONGLY URGED THAT OUR
RECENT DECISIONS - SUCH AS HELVERING V. CLIFFORD, 309 U.S. 331, AND
HARRISON V. SCHAFFNER, 312 U.S. 579 - MAKE FOR THE SAME RESULT.  FN4
BUT IN POE V. SEABORN AND RELATED CASES THE COURT DISCARDED THAT TEST. 
IT WAS MORE CONCERNED WITH LEGAL DOCTRINE THAN IT WAS WITH ECONOMIC
REALITIES.  IT HELD THAT THE WIFE'S INTEREST IN THE COMMUNITY
(INCLUDING THE HUSBAND'S SALARY) WAS "VESTED"  FN5  AND THAT THEREFORE
THE HUSBAND NEED PAY THE FEDERAL INCOME TAX ON ONLY HALF OF THAT
INCOME. 

ONE DUBIOUS DECISION DOES NOT OF COURSE JUSTIFY ANOTHER.  BUT IF
TEXAS CAN REDUCE THE HUSBAND'S INCOME TAX BY CREATING IN HIS WIFE A
"VESTED" INTEREST IN HALF HIS SALARY AND OTHER INCOME, I FAIL TO SEE
WHY ITS NEIGHBOR, OKLAHOMA, MAY NOT DO THE SAME THING.  THE COURT NOW
CONCEDES THAT ONCE ESTABLISHED, THE COMMUNITY PROPERTY STATUS OF
OKLAHOMA SPOUSES IS AT LEAST EQUAL TO THAT OF MAN AND WIFE IN ANY
COMMUNITY PROPERTY STATE.  HOW THEN CAN OKLAHOMA BE DENIED THE SAME
PRIVILEGE WHICH OTHER COMMUNITY PROPERTY STATES ENJOY? 

IT IS SAID THAT THE ELECTIVE FEATURE OF THE OKLAHOMA STATUTE CAUSES
IT TO RUN AFOUL OF LUCAS V. EARL, 281 U.S. 111, WHICH HELD THAT AN
ASSIGNMENT OF INCOME TO BE EARNED OR TO ACCRUE IN THE FUTURE WAS
INEFFECTIVE TO RENDER THE INCOME IMMUNE FROM TAXATION AS THAT OF THE
ASSIGNOR.  BUT THE COURT WAS NOT TROUBLED WITH LUCAS V. EARL IN POE V.
SEABORN.  IT DISPOSED OF THAT ARGUMENT BY SAYING THAT IN LUCAS V. EARL
THE "VERY ASSIGNMENT" WAS BOTTOMED ON THE FACT THAT "THE EARNINGS WOULD
BE THE HUSBAND'S PROPERTY, ELSE THERE WOULD HAVE BEEN NOTHING ON WHICH
IT COULD OPERATE.  THAT CASE PRESENTS QUITE A DIFFERENT QUESTION FROM
THIS, BECAUSE HERE, BY LAW, THE EARNINGS ARE NEVER THE PROPERTY OF THE
HUSBAND, BUT THAT OF THE COMMUNITY."  282 U.S. P. 117.  BY THE SAME
REASONING WE SHOULD SAY THAT OKLAHOMA HAS MADE THESE EARNINGS THE
"PROPERTY" OF THE COMMUNITY ONCE THE WRITTEN ELECTION HAS BEEN FILED
AND THAT INCOME WHICH ACCRUES THEREAFTER NEVER BECOMES THE SOLE
"PROPERTY" OF THE HUSBAND.  INDEED WE HAVE THE WORD OF THE SUPREME
COURT OF OKLAHOMA THAT SUCH A TRANSFER WAS EFFECTED BY THE WRITTEN
ELECTION FILED BY THE HUSBAND AND WIFE IN THIS CASE.  HARMON V.
OKLAHOMA TAX COMMISSION, 189 OKLA. 475, 118 P.2D 205.  THERE IS NO
SUGGESTION THAT THE TRANSFER OF "PROPERTY" INTERESTS IN THIS CASE IS
ANY LESS GENUINE OR EFFECTIVE THAN IT WAS IN POE V. SEABORN.  THE
WRITTEN ELECTION ONCE FILED IS IRREVOCABLE.  ONLY DEATH OR A DECREE OF
ABSOLUTE DIVORCE CAN ALTER IT.  OKLA. STATS. ANN. 1941, TITLE 32, SEC.
51.  IF AS POE V. SEABORN HOLDS THE CRUCIAL CIRCUMSTANCE IS WHETHER THE
INCOME AS IT ACCRUES IS THE "PROPERTY" OF THE COMMUNITY, IT SHOULD MAKE
NO DIFFERENCE FOR FEDERAL INCOME TAX PURPOSES THAT THE TRANSFER FROM
THE HUSBAND TO THE COMMUNITY WAS EFFECTED BY THE ACT OF FILING A
WRITTEN ELECTION RATHER THAN BY THE ACT OF MARRIAGE.  IF, "BY LAW, THE
EARNINGS ARE NEVER THE PROPERTY OF THE HUSBAND, BUT THAT OF THE
COMMUNITY" (POE V. SEABORN, SUPRA, P. 117), THE HUSBAND SHOULD FARE NO
BETTER IN WASHINGTON OR TEXAS OR CALIFORNIA THAN IN OKLAHOMA.  THE
SOURCE OF THE "LAW" WHICH DETERMINES WHETHER OR NOT THAT RESULT OBTAINS
IS THE SAME IN EACH CASE - THE LEGISLATURE AND THE JUDICIARY OF THE
PARTICULAR STATE.  IF THEY DECLARE THAT THE HUSBAND HAS LOST AND THE
WIFE ACQUIRED A "PROPERTY" INTEREST BY A CERTAIN ACT (WHETHER BY
MARRIAGE, OR BY THE FILING OF A PAPER), IT IS THE "LAW" THOUGH IT IS A
RECENT PRONOUNCEMENT AND NOT AN "INVETERATE" AND LONG STANDING RULE OF
THAT PARTICULAR STATE.  THE CONSEQUENCE UNDER THE FEDERAL INCOME TAX
STATUTE IS OF COURSE FOR US TO DECIDE.  MY ONLY POINT IS THAT IF THAT
IS THE FORMULA FOR SOME STATES IT SHOULD BE THE FORMULA FOR ALL.  WE
SHOULD APPLY IT EQUALLY AND WITHOUT DISCRIMINATION OR WE SHOULD DISCARD
IT COMPLETELY. 

BUT IT IS SAID THAT THE FILING OF A WRITTEN ELECTION UNDER THE
OKLAHOMA STATUTE IS AN "ANTICIPATORY ARRANGEMENT" FOR THE DISPOSITION
OF INCOME UNDER THE RULE OF LUCAS V. EARL; THAT A "CONSENSUAL"
COMMUNITY WILL NOT BE RECOGNIZED FOR FEDERAL INCOME TAX PURPOSES BUT
THAT A "LEGAL" COMMUNITY WILL.  AS THE TAX COURT, HOWEVER, POINTED OUT
(1 T.C. 40, 49) SUCH A DISTINCTION WILL NOT STAND SCRUTINY.  COMMUNITY
PROPERTY CREATED BY MARRIAGE IS THE EFFECT OF A CONTRACT.  FN6  IT IS
THE RESULT OF A CONSENSUAL ACT.  THE SAME IS TRUE WHERE HUSBAND AND
WIFE AGREE TO LEAVE OKLAHOMA AND ESTABLISH THEIR DOMICILE IN TEXAS SO
AS TO GAIN THE ADVANTAGES OF A COMMUNITY PROPERTY SYSTEM.  I CAN SEE NO
DIFFERENCE IN SUBSTANCE WHETHER THE STATE PUTS ITS COMMUNITY PROPERTY
SYSTEM IN EFFECT BY ONE KIND OF CONTRACT OR ANOTHER.  ONE IS AS MUCH
"LEGAL" AS ANOTHER.  THE AGREEMENT TO MARRY OR THE AGREEMENT TO MOVE
FROM OKLAHOMA TO TEXAS IS AS "CONSENSUAL" AS THE ACT OF FILING A
WRITTEN ELECTION UNDER THE OKLAHOMA STATUTE. 

BUT IF A DISTINCTION IS TAKEN BETWEEN A "LEGAL" AND A "CONSENSUAL"
COMMUNITY, IT CANNOT BE CONSISTENTLY MAINTAINED FOR FEDERAL INCOME TAX
PURPOSES.  IN THE FIRST PLACE, EVEN THE DISTINCTION WHICH THE COURT
SEEKS TO TAKE BETWEEN THIS CASE AND POE V. SEABORN VANISHES WHEN AFTER
ACQUIRED PROPERTY IS CONSIDERED.  LET US ASSUME THERE IS PROPERTY FIRST
ACQUIRED IN OKLAHOMA AFTER THE WRITTEN ELECTION HAS BEEN FILED  FN7
AND IN WASHINGTON AFTER MARRIAGE.  HOW ARE WE JUSTIFIED IN SAYING THAT
LUCAS V. EARL MAKES THE WRITTEN ELECTION BUT NOT THE MARRIAGE AN
ANTICIPATORY ARRANGEMENT AFFECTING THE INCOME FROM THAT AFTER-ACQUIRED
PROPERTY?  OKLAHOMA IS AS EXPLICIT AS WASHINGTON IS SAYING THAT
PROPERTY SO ACQUIRED BY THE HUSBAND "SHALL BE DEEMED THE COMMUNITY OR
COMMON PROPERTY OF THE HUSBAND AND THE WIFE AND EACH, SUBJECT TO THE
PROVISIONS OF THIS ACT, SHALL BE VESTED WITH AN UNDIVIDED ONE-HALF
INTEREST THEREIN."  OKLA. STATS. ANN. 1941, TITLE 32, SEC. 56.  IN BOTH
CASES THE HUSBAND NEVER WAS AND NEVER COULD BE THE SOLE OWNER OF THAT
PROPERTY IF LOCAL LAW IS TO BE THE GUIDE.  HIS "STATUS" UNDER OKLAHOMA
LAW IS AS FIXED AND IRREVOCABLE AS IT IS UNDER WASHINGTON LAW.  HOW CAN
IT BE SAID THAT AFTER-ACQUIRED PROPERTY IS GOVERNED BY "STATUS" IN ONE
CASE AND BY "CONTRACT" IN THE OTHER?  IF SUCH A DISTINCTION IS DRAWN,
WE ARE INDEED MAKING INCOME TAX LIABILITY TURN ON "ELUSIVE AND SUBTLE
CASUISTRIES."  CF. HELVERING V. HALLOCK, 309 U.S. 106, 118.  IN THE
SECOND PLACE, THE TAX COURT POINTED OUT IN THIS CASE THAT THE
DIFFERENCE "BETWEEN A COMMUNITY PROPERTY LAW WHICH IS OPERATIVE ONLY
WHEN EXPRESSLY INVOKED AND ONE WHICH OPERATES UNLESS EXPRESSLY REVOKED"
(1 T.C. P. 46) HAS NO PRACTICAL BASIS.  THERE MAY BE A "CONSENSUAL"
COMMUNITY WITHIN A SO-CALLED "LEGAL" COMMUNITY.  IN SOME OF THE SO
CALLED "LEGAL" COMMUNITY PROPERTY STATES SEPARATE PROPERTY OF ONE
SPOUSE MAY BE CONVERTED BY CONTRACT OR DEED INTO COMMUNITY PROPERTY OR
VICE VERSA.  VOLZ V. ZANG, 113 WASH. 378, 194 P. 409; STATE EX REL. VAN
MOSS V. SAILORS, 180 WASH. 269, 39 P.2D 397; KENNEY V. KENNEY, 220
CALIF. 134, 136, 30 P.2D 398.  BUT SEE KELLETT V. KELLETT, 23 TEX. CIV.
APP. 571, 56 S.W. 766; MCDONALD V. LAMBERT, 43 N.M. 27, 85 P.2D 78. 
AND IT HAS BEEN SUPPOSED SINCE POE V. SEABORN THAT INCOME FROM THAT
TYPE OF COMMUNITY PROPERTY WAS NOT THEREAFTER TO BE TREATED AS THE
SEPARATE PROPERTY OF THE SPOUSE WHO ORIGINALLY OWNED IT.  SEE 3
MERTENS, THE LAW OF FEDERAL INCOME TAXATION (1942) SEC. 19.29.  THAT
HAS BEEN THE CONSISTENT VIEW  FN8  BOTH OF THE COURTS (BLACK V.
COMMISSIONER, 114 F.2D 355) AND OF THE TAX COURT.  SHOENHAIR V.
COMMISSIONER, 45 B.T.A. 576, 579; HARMON V. COMMISSIONER, 1 T.C. 40, 46
47.  AND THAT HAS BEEN THE TREASURY POSITION.  G.C.M. 19248, INT. REV.
BULL., CUM. BULL.  1937-2, P. 59.  IF POE V. SEABORN STATES THE CORRECT
RULE, THAT VIEW SEEMS IRREFUTABLE.  COMMUNITY PROPERTY IS NO LESS
CREATED "BY LAW" WHETHER IT WAS CREATED BY THE CONTRACT OF MARRIAGE OR
BY A POST-NUPTIAL AGREEMENT. 

BUT ARE WE NOW TO UNDERSTAND THAT POST-NUPTIAL AGREEMENTS IN ALL
COMMUNITY PROPERTY STATES ARE INEFFECTIVE FOR FEDERAL INCOME TAX
PURPOSES BECAUSE THEY ARE "CONSENSUAL"?  OR IS THE COURT WILLING TO
GIVE INCOME TAX EFFECT TO SUCH CONTRACTS ONLY WITHIN THE ESTABLISHED
COMMUNITY PROPERTY STATES?  IF IT IS THE FORMER THEN WE ARE OVERRIDING
SETTLED ADMINISTRATIVE CONSTRUCTION ON WHICH GREAT RELIANCE WAS PLACED
IN POE V. SEABORN, 282 U.S. P. 116.  IF IT IS THE LATTER, THEN WE CAN
HARDLY SAY THAT THE DIFFERENCE BETWEEN THE OKLAHOMA SYSTEM AND THE
WASHINGTON SYSTEM IS THAT WASHINGTON HAS CREATED ITS SYSTEM "AS AN
INCIDENT OF MATRIMONY" WHILE OKLAHOMA HAS NOT.  IN THAT EVENT WE MAKE
UNMISTAKABLY PLAIN THE DISCRIMINATION AGAINST OKLAHOMA - WE GIVE INCOME
TAX EFFECT TO A POST-NUPTIAL AGREEMENT BETWEEN SPOUSES IN EIGHT STATES
AND DENY EFFECT TO A SIMILAR AGREEMENT IN OKLAHOMA.  THE ONLY APPARENT
BASIS FOR SUCH DISCRIMINATION IS THAT THE COMMUNITY PROPERTY SYSTEMS IN
THE EIGHT STATES ARE TRADITIONAL; THAT THOSE EIGHT STATES HAVE A WELL
SETTLED POLICY; THAT OKLAHOMA MERELY GIVES ITS CITIZENS A CHOICE TO GET
UNDER OR STAY OUT OF ITS COMMUNITY PROPERTY SYSTEM.  YET HOW CAN WE SAY
THAT THE STATE WHICH ALLOWS HUSBAND AND WIFE TO REVOKE OR ALTER ITS
COMMUNITY PROPERTY SYSTEM BY CONTRACT HAS A MORE "SETTLED" POLICY
TOWARDS COMMUNITY PROPERTY THAN A STATE WHICH GIVES HUSBAND AND WIFE
THE CHOICE TO INVOKE ITS COMMUNITY PROPERTY SYSTEM OR TO KEEP THEIR
MARITAL PROPERTY ON A COMMON LAW BASIS?  THE TRUTH IS THAT THERE IS A
WIDE RANGE OF CHOICE IN EACH.  BUT THE FACT THAT THERE IS A CHOICE
SHOULD NOT BE DEEMED FATAL WHEN OKLAHOMA'S CASE COMES BEFORE THE COURT
AND IRRELEVANT WHEN WASHINGTON'S CASE IS HERE. 

THE DISTINCTIVE FEATURE OF THE COMMUNITY PROPERTY SYSTEM IS THAT THE
PRODUCTS OF THE INDUSTRY OF EITHER SPOUSE ARE ATTRIBUTED TO BOTH; THE
HUSBAND IS NEVER THE SOLE "OWNER" OF HIS EARNINGS; HIS WIFE ACQUIRES A
HALF INTEREST IN THEM FROM THEIR VERY INCEPTION.  1 DE FUNIAK,
PRINCIPLES OF COMMUNITY PROPERTY (1943) SEC. 239.  THAT WAS THE TEST
WHICH POE V. SEABORN ADOPTED.  IF OKLAHOMA MEETS THAT TEST, THEN SHE
SHOULD BE TREATED ON A PARITY WITH HER SISTER STATES.  THE FACT THAT
HER SYSTEM IS NEWBORN  FN9  DOES NOT MAKE IT ANY THE LESS GENUINE. 

I DO NOT MEAN TO DEFEND POE V. SEABORN.  I ONLY SAY THAT IF WE ARE TO
STAND BY IT, WE SHOULD NOT ALLOW IT TO BECOME A "VESTED" INTEREST OF
ONLY A FEW OF THE STATES.  THE TRUTH OF THE MATTER IS THAT LUCAS V.
EARL AND HELVERING V. CLIFFORD ON THE ONE HAND AND POE V. SEABORN ON
THE OTHER STATE COMPETING THEORIES OF INCOME TAX LIABILITY.  OR TO PUT
IT ANOTHER WAY, POE V. SEABORN HAS BEEN CARVED OUT AS AN EXCEPTION TO
THE GENERAL RULES OF LIABILITY FOR INCOME TAXES.  IF WE ARE TO CREATE
SUCH EXCEPTIONS WE SHOULD DO SO UNIFORMLY.  WE SHOULD NOT ALLOW THE
RATIONALE OF POE V. SEABORN TO BE GOOD FOR ONE GROUP OF STATES AND FOR
ONE GROUP ONLY.  IF WE ARE TO ABANDON THE RATIONALE OF POE V. SEABORN,
WE SHOULD DO SO OPENLY AND AVOWEDLY.  IF THE PRACTICAL CONSEQUENCES OF
APPLYING THE RATIONALE OF POE V. SEABORN TO OTHER SITUATIONS WOULD BE
DISASTROUS TO FEDERAL FINANCE, IT IS TIME TO REEXAMINE THE CASE.  THE
RULE WHICH IT FASHIONS IS THE RULE OF THIS COURT.  WE HAVE THE
RESPONSIBILITY FOR ITS CREATION.  IF WE ADHERE TO IT, WE SHOULD APPLY
IT WITHOUT DISCRIMINATION.  IF WE ARE NOT TO APPLY IT EQUALLY TO ALL
STATES, WE SHOULD BE RID OF IT.  THIS IS THE TIME TO FACE THE ISSUE
SQUARELY. 

FN1  TAX EVASION AND AVOIDANCE, HEARINGS, HOUSE COMMITTEE ON WAYS AND
MEANS, 75TH CONG., 1ST SESS., P. 4. 

FN2  SEE THE TABLE COMPUTED ON THE 1941 RATES IN 3 MERTENS, LAW OF
FEDERAL INCOME TAXATION (1942) P. 20. 

FN3  GOODELL V. KOCH, 282 U.S. 118, INVOLVING THE COMMUNITY PROPERTY
SYSTEM OF ARIZONA; HOPKINS V. BACON, 282 U.S. 122(TEXAS); BENDER V.
PFAFF, 282 U.S. 127(LOUISIANA); UNITED STATES V. MALCOLM, 282 U.S.
792(CALIFORNIA). 

FN4  SEE FOR EXAMPLE RAY, PROPOSED CHANGES IN FEDERAL TAXATION OF
COMMUNITY PROPERTY, 30 CALIF. L. REV. 397, 407; 1 PAUL, FEDERAL ESTATE
& GIFT TAXATION (1942) SEC. 1.09. 

FN5  CF. HELVERING V. HALLOCK, 309 U.S. 106, 118: 

"THE IMPORTATION OF THESE DISTINCTIONS AND CONTROVERSIES FROM THE LAW
OF PROPERTY INTO THE ADMINISTRATION OF THE ESTATE TAX PRECLUDES A FAIR
AND WORKABLE TAX SYSTEM.  ESSENTIALLY THE SAME INTERESTS, JUDGED FROM
THE POINT OF VIEW OF WEALTH, WILL BE TAXABLE OR NOT, DEPENDING UPON
ELUSIVE AND SUBTLE CASUISTRIES WHICH MAY HAVE THEIR HISTORIC
JUSTIFICATION BUT POSSESS NO RELEVANCE FOR TAX PURPOSES." 

FN6  LOUISIANA HAS RECOGNIZED THAT "THE COMMUNITY OF PROPERTY,
CREATED BY MARRIAGE IS NOT A PARTNERSHIP; IT IS THE EFFECT OF A
CONTRACT GOVERNED BY RULES PRESCRIBED FOR THAT PURPOSE IN THIS CODE." 
CIV. CODE, ART. 2807.  THIS COURT APPLIED THE RULE OF POE V. SEABORN TO
THE LOUISIANA COMMUNITY PROPERTY SYSTEM IN BENDER V. PFAFF, SUPRA, NOTE
3. 

FN7  FOR ALL WE KNOW SOME OF THE INCOME INVOLVED IN THIS CASE MAY
HAVE ACCRUED FROM PROPERTY ACQUIRED AFTER THE WRITTEN ELECTION WAS
FILED. 

FN8  LIKEWISE IF IN THE TRADITIONAL COMMUNITY PROPERTY STATES
COMMUNITY PROPERTY IS TRANSMUTED BY AGREEMENT OF THE SPOUSES INTO THE
SEPARATE PROPERTY OF ONE SPOUSE, THE INCOME THEREAFTER IS TAXABLE
SOLELY TO THE LATTER.  THE TAX COURT HAS SO HELD.  BROOKS V.
COMMISSIONER, 43 B.T.A. 860; SHOENHAIR V. COMMISSIONER, 45 B.T.A. 576. 
AND THE COURTS HAVE SUSTAINED THAT POSITION.  SPARKMAN V. COMMISSIONER,
112 F.2D 774; HELVERING V. HICKMAN, 70 F.2D 985. 

FN9  EVEN THE ARGUMENT BASED ON TRADITION MUST BE TAKEN WITH A GRAIN
OF SALT UNLESS HISTORY IS TO BE NO GUIDE.  APPARENTLY SOME OF THE
STATES WERE MERELY ONE JUMP AHEAD OF THE DECISIONS OF THIS COURT IN
PROVIDING THE WIFE WITH A "VESTED" INTEREST IN THE COMMUNITY.  THE
STORY IS BRIEFLY RELATED IN CAHN, FEDERAL TAXATION AND PRIVATE LAW, 44
COL. L. REV. 669, 674-677. 
..END :















MCDONALD V. COMMISSIONER, 323 U.S. 57 


NO. 36.  ARGUED OCTOBER 20, 1944.  - DECIDED NOVEMBER 20, 1944.  - 139
F.2D 400, AFFIRMED. 


THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS AFFIRMING A DECISION OF
THE TAX COURT DISALLOWING, IN COMPUTING PETITIONER'S INCOME TAX FOR
1939, A DEDUCTION OF CAMPAIGN EXPENSES - INCLUDING AN "ASSESSMENT" BY
THE POLITICAL PARTY OF WHICH HE WAS A CANDIDATE - INCURRED IN
CONTESTING UNSUCCESSFULLY AN ELECTION FOR A JUDGESHIP WHICH HE HAD BEEN
HOLDING TEMPORARILY BY APPOINTMENT, IS AFFIRMED. 

OPINION OF FRANKFURTER, J., IN WHICH STONE, C.J., AND ROBERTS AND
JACKSON, JJ., CONCUR: 

1.  PETITIONER'S CAMPAIGN EXPENSES WERE NOT DEDUCTIBLE (1) UNDER SEC.
23(A)(1)(A) OF THE INTERNAL REVENUE CODE AS EXPENSES INCURRED IN
"CARRYING ON ANY TRADE OR BUSINESS"; (2) UNDER SEC. 23(E)(2) AS A LOSS
INCURRED IN A "TRANSACTION ENTERED INTO FOR PROFIT"; NOR (3) UNDER SEC.
23(A)(2) AS EXPENSES INCURRED "FOR THE PRODUCTION OR COLLECTION OF
INCOME."  P. 60. 

2.  UNDER EXISTING LEGISLATION, AN INCUMBENT IS NO MORE THAN OTHERS
ENTITLED TO DEDUCTION OF CAMPAIGN EXPENSES.  P. 63. 

3.  AFFIRMANCE OF THE DECISION OF THE TAX COURT IN THIS CASE IS
SUPPORTED ALSO BY THE RATIONALE OF DOBSON V. COMMISSIONER, 320 U.S.
489.  P. 64. 

MCDONALD V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 321 U.S. 762, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE TAX COURT, 1 T.C. 738, WHICH SUSTAINED THE COMMISSIONER'S
DETERMINATION OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE CONCLUSION AND JUDGMENT OF THE
COURT, AND AN OPINION IN WHICH THE CHIEF JUSTICE, MR. JUSTICE ROBERTS
AND MR. JUSTICE JACKSON CONCUR. 

THIS IS A CONTROVERSY CONCERNING A DEFICIENCY IN PETITIONER'S INCOME
TAX FOR 1939. 

IN DECEMBER 1938, THE GOVERNOR OF PENNSYLVANIA APPOINTED PETITIONER
TO SERVE AN UNEXPIRED TERM AS JUDGE OF THE COURT OF COMMON PLEAS OF
LUZERNE COUNTY.  UNDER PENNSYLVANIA LAW SUCH AN INTERIM JUDGESHIP IS
FILLED FOR A FULL TERM AT THE NEXT ELECTION.  MCDONALD ACCEPTED THIS
TEMPORARY APPOINTMENT WITH THE UNDERSTANDING THAT HE WOULD CONTEST BOTH
THE PRIMARY AND GENERAL ELECTIONS.  TO OBTAIN THE SUPPORT OF HIS PARTY
ORGANIZATION HE WAS OBLIGED TO PAY TO THE PARTY FUND AN "ASSESSMENT"
MADE BY THE PARTY'S EXECUTIVE COMMITTEE AGAINST ALL OF THE PARTY'S
CANDIDATES.  THE AMOUNTS OF SUCH "ASSESSMENTS" WERE FIXED ON THE BASIS
OF THE TOTAL PROSPECTIVE SALARIES TO BE RECEIVED FROM THE VARIOUS
OFFICES.  THE SALARY OF A COMMON PLEAS JUDGE WAS $12,000 A YEAR FOR A
TERM OF TEN YEARS, AND THE "ASSESSMENT" AGAINST PETITIONER WAS FIXED AT
$8,000.  THE PROCEEDS FROM THESE "ASSESSMENTS" WENT TO THE GENERAL
CAMPAIGN FUND IN THE SERVICE OF THE PARTY'S ENTIRE TICKET.  IN ADDITION
TO THIS POLITICAL LEVY, MCDONALD ALSO SPENT $5,017.27 FOR CUSTOMARY
CAMPAIGN EXPENSES - ADVERTISING, PRINTING, TRAVELLING, ETC.  THE SUM OF
THESE OUTLAYS, $13,017.27, MCDONALD DEDUCTED AS A "REELECTION
EXPENSE."  THE COMMISSIONER OF INTERNAL REVENUE DISALLOWED THE ITEM AND
NOTIFIED HIM OF A DEFICIENCY OF $2,506.77. 

IN APPROPRIATE PROCEEDINGS BEFORE THE TAX COURT OF THE UNITED STATES
THAT COURT SUSTAINED THE COMMISSIONER, 1 T.C. 738, AND ITS DECISION WAS
AFFIRMED BY THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.  139
F.2D 400.  WE BROUGHT THE CASE HERE, 321 U.S. 762, TO GIVE A DEFINITIVE
JUDICIAL ANSWER TO AN IMPORTANT PROBLEM IN THE ADMINISTRATION OF THE
FEDERAL INCOME TAX. 

WHAT CLASS OF OUTLAYS MAY, IN RELATION TO THE FEDERAL INCOME TAX, BE
DEDUCTED FROM GROSS INCOME AND IN WHAT AMOUNT ARE MATTERS SOLELY FOR
CONGRESS.  OUR ONLY PROBLEM IS TO ASCERTAIN WHAT PROVISIONS CONGRESS
HAS MADE REGARDING SUCH EXPENDITURES AS THOSE FOR WHICH THE PETITIONER
CLAIMS THE RIGHT OF DEDUCTION.  THE CASE IS NOT EMBARRASSED BY ANY
ENTANGLEMENT WITH CORRUPT PRACTICES LEGISLATION EITHER STATE OR
FEDERAL. 

THE MATERIALS FROM WHICH MUST BE DISTILLED THE WILL OF CONGRESS ARE
THE FOLLOWING PROVISIONS OF THE INTERNAL REVENUE CODE:  SEC.
23(A)(1)(A), 56 STAT. 798, 819, 26 U.S.C. SEC. 23(A)(1)(A)(SUPP. 
1943), IN CONNECTION WITH SEC. 24(A)(1), 26 U.S.C. SEC. 24(A)(1), AND
SEC. 48(D), 26 U.S.C. SEC. 48(D); SEC. 23(E)(2), 26 U.S.C. SEC.
23(E)(2); SEC. 23(A)(2) AS AMENDED BY SEC. 121 OF THE REVENUE ACT OF
1942, 56 STAT. 798, 819. 

"ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE
TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS" ARE ALLOWED BY SEC.
23(A)(1)(A) AS DEDUCTIONS IN COMPUTING NET INCOME.  ACCORDING TO TAX
LAW TERMINOLOGY (SEC. 48(D) OF THE INTERNAL REVENUE CODE) THE
PERFORMANCE BY PETITIONER OF HIS JUDICIAL OFFICE CONSTITUTED CARRYING
ON A "TRADE OR BUSINESS" WITHIN THE TERMS OF SEC. 23 OF THE INTERNAL
REVENUE CODE.  HE WAS THEREFORE ENTITLED TO DEDUCT FROM HIS GROSS
INCOME ALL THE "ORDINARY AND NECESSARY EXPENSES" PAID DURING 1939 IN
CARRYING ON THAT "TRADE OR BUSINESS."  HE COULD, THAT IS, DEDUCT ALL
EXPENSES THAT RELATED TO THE DISCHARGE OF HIS FUNCTIONS AS A JUDGE. 
BUT HIS CAMPAIGN CONTRIBUTIONS WERE NOT EXPENSES INCURRED IN BEING A
JUDGE BUT IN TRYING TO BE A JUDGE FOR THE NEXT TEN YEARS.  THAT IS AS
TRUE OF THE MONEY HE SPENT MORE IMMEDIATELY FOR HIS OWN REELECTION AS
IT IS OF THE "ASSESSMENT" HE PAID INTO THE PARTY COFFERS FOR THE
SUCCESS OF HIS PARTY'S TICKET.  THE INCONGRUITY OF ALLOWING SUCH
CONTRIBUTIONS AS EXPENSES INCIDENTAL TO THE MEANS OF EARNING INCOME AS
A JUDGE IS UNDERLINED BY THE INSISTENCE THAT PAYMENT OF THE
"ASSESSMENT" LEVIED BY THE PARTY AS A PREREQUISITE TO BEING ALLOWED TO
BE A CANDIDATE IS DEDUCTIBLE AS A "BUSINESS" EXPENSE.  IF SUCH
"ASSESSMENTS" FOR FUTURE ACQUISITION OF A PROFITABLE OFFICE ARE PART OF
THE EXPENSES IN PERFORMING THE FUNCTIONS OF THAT OFFICE FOR THE TAXABLE
YEAR, THEN WHY SHOULD NOT THE SAME DEDUCTION BE ALLOWED FOR
"ASSESSMENT" AGAINST OFFICEHOLDERS NOT CANDIDATES FOR IMMEDIATE
REAPPOINTMENT OR REELECTION BUT WHO PAY SUCH "ASSESSMENTS" OUT OF PARTY
ALLEGIANCE MIXED OR UNMIXED BY A LIVELY SENSE OF FUTURE FAVORS? 

IN ORDER TO DISALLOW THEM WE ARE NOT CALLED UPON TO FIND THAT
PETITIONER'S OUTLAYS COME WITHIN THE PROHIBITION OF SEC. 24 OF THE
INTERNAL REVENUE CODE IN THAT THEY CONSTITUTED "PERSONAL  ...
EXPENSES."  "WHETHER AND TO WHAT EXTENT DEDUCTIONS SHALL BE ALLOWED
DEPENDS UPON LEGISLATIVE GRACE; AND ONLY AS THERE IS CLEAR PROVISION
THEREFOR CAN ANY PARTICULAR DEDUCTION BE ALLOWED."  NEW COLONIAL ICE
CO. V. HELVERING, 292 U.S. 435, 440.  FOR THESE CAMPAIGN EXPENSES TO BE
DEDUCTIBLE, IT MUST BE FOUND THAT THEY CAN CONVENIENTLY COME WITHIN
SEC. 23(A)(1)(A).  TO PUT IT MILDLY, THAT SECTION IS NOT A CLEAR
PROVISION FOR SUCH AN ALLOWANCE.  TO DETERMINE ALLOWABLE DEDUCTIONS BY
THE DIFFERENT INTERNAL PARTY ARRANGEMENTS FOR BEARING THE COST OF
POLITICAL CAMPAIGNS IN THE FORTY-EIGHT STATES WOULD DISREGARD THE
EXPLICIT RESTRICTIONS OF SEC. 23 CONFINING DEDUCTIBLE EXPENSES SOLELY
TO OUTLAYS IN THE EFFORTS OR SERVICES - HERE THE BUSINESS OF JUDGING -
FROM WHICH THE INCOME FLOWS.  COMPARE WELCH V. HELVERING, 290 U.S. 111,
115-116. 

PETITIONER NEXT INSISTS THAT INASMUCH AS HE WAS DEFEATED FOR
REELECTION HIS CAMPAIGN EXPENSES CONSTITUTE A LOSS INCURRED IN A
"TRANSACTION ENTERED INTO FOR PROFIT" AND AS SUCH A DEDUCTIBLE
ALLOWANCE BY VIRTUE OF SEC. 23(E)(2).  FN1  SUCH AN ARGUMENT DOES NOT
DESERVE MORE THAN SHORT SHRIFT.  IF SUFFICES TO SAY THAT PETITIONER'S
MONEY WAS NOT SPENT TO BUY THE ELECTION BUT TO BUY THE OPPORTUNITY TO
PERSUADE THE ELECTORS.  HIS CAMPAIGN CONTRIBUTION WAS NOT AN INSURANCE
OF VICTORY FRUSTRATED BY "AN ACT OF GOD" BUT THE PRICE PAID FOR AN
ACTIVE SHARE IN THE HAZARDS OF POPULAR ELECTIONS.  TO ARGUE THAT THE
LOSS OF THE ELECTION PROVES THAT THE EXPENSE INCURRED IN SUCH ELECTION
IS A DEDUCTIBLE "LOSS" UNDER SEC. 23(E)(2) IS TO PLAY WITH WORDS. 

FINALLY, RELIANCE IS PLACED ON AN AMENDMENT TO THE INTERNAL REVENUE
CODE INTRODUCED BY SEC. 121 OF THE REVENUE ACT OF 1942, 56 STAT. 798,
819.  FN2  THIS AMENDMENT WAS PROPOSED BY THE TREASURY (1 HEARINGS
BEFORE COMMITTEE ON WAYS AND MEANS, REVENUE REVISION, 1942, 77TH CONG.,
2D SESS., P. 88) TO AFFORD RELIEF FOR A SPECIFICALLY DEFINED
INEQUITABLE SITUATION WHICH HAD BECOME MANIFEST BY THE DECISION OF THE
COURT IN HIGGINS V. COMMISSIONER, 312 U.S. 212.  IN THAT CASE THIS
COURT HELD THAT BY PREVIOUS ENACTMENTS CONGRESS HAD MADE NO PROVISION
FOR ALLOWABLE DEDUCTIONS FROM PROFITABLE TRANSACTIONS NOT COVERED BY
THE STATUTORY CONCEPT OF "BUSINESS" INCOME.  BUT OF COURSE EARNINGS
FROM "THE PERFORMANCE OF THE FUNCTIONS OF A PUBLIC OFFICE" HAD
SPECIFICALLY BEEN SO COVERED.  SEC. 48(D).  FN3  CONGRESS ADOPTED THE
TREASURY PROPOSAL FOR THE RESTRICTED PURPOSE WHICH ORIGINATED IT.  AND
SO HERE THE DIFFICULTY IS NOT THAT PETITIONER'S EXPENDITURES RELATED TO
"NON-BUSINESS" INCOME, AND THUS WERE EXCLUDED FROM THE LEGISLATIVE
SCHEME BEFORE THE 1942 AMENDMENT, BUT THAT THEY WERE NOT INCURRED IN
"CARRYING ON" HIS "BUSINESS" OF JUDGING.  THE AMENDMENT OF 1942 MERELY
ENLARGED THE CATEGORY OF INCOMES WITH REFERENCE TO WHICH EXPENSES WERE
DEDUCTIBLE.  IT DID NOT ENLARGE THE RANGE OF ALLOWABLE DEDUCTIONS  FN4
OF "BUSINESS" EXPENSES.  IN SHORT, THE ACT OF 1942 IN NO WISE AFFECTED
THE DISALLOWANCE OF CAMPAIGN EXPENSES AS CONSISTENTLY REFLECTED BY
LEGISLATIVE HISTORY, COURT DECISION, TREASURY PRACTICE AND TREASURY
REGULATIONS.  FN5  NOTHING WHATEVER IN THE CIRCUMSTANCES ATTENDING THE
ADOPTION OF SEC. 121 OF THE REVENUE ACT OF 1942 WARRANTS THE SUGGESTION
THAT CONGRESS UNWITTINGLY INITIATED A RADICAL CHANGE OF POLICY
REGARDING CAMPAIGN EXPENDITURES.  EVERY RELEVANT ITEM OF EVIDENCE
BEARING UPON THE HISTORY OF THIS AMENDMENT PRECLUDES THE INFERENCE THAT
THE TREASURY WITHOUT INTENT AND THE CONGRESS WITHOUT APPRECIATION
OPENED WIDE THE DOOR FOR THE ALLOWANCE OF CAMPAIGN EXPENDITURES AS
DEDUCTIBLE EXPENSES.  IT SURELY IS NOT FAIR TO ATTRIBUTE TO CONGRESS
THE REVERSAL OF ITS POLICY AND THE ENACTMENT OF A FAR-REACHING NEW
POLICY IN THE ABSENCE OF ANY EVIDENCE, HOWEVER TENUOUS OR SPECULATIVE,
THAT CONGRESS WAS LEGISLATING ON THE SUBJECT. 

IT IS NOT FOR THIS COURT TO INITIATE POLICIES AS TO THE DEDUCTION OF
CAMPAIGN EXPENSES.  IT IS FOR CONGRESS TO DETERMINE THE RELATION OF
CAMPAIGN EXPENDITURES TO TAX DEDUCTIONS BY CANDIDATES FOR PUBLIC
OFFICE, UNDER SUCH CIRCUMSTANCES AND WITHIN SUCH LIMITS AS COMMEND
THEMSELVES TO ITS JUDGMENT.  BUT WE CERTAINLY CANNOT DRAW INTIMATIONS
OF SUCH A POLICY FROM LEGISLATION BY CONGRESS INCREASINGLY RESTRICTIVE
AGAINST CAMPAIGN CONTRIBUTIONS AND POLITICAL ACTIVITIES BY GOVERNMENT
OFFICIALS.  THE RELATION BETWEEN MONEY AND POLITICS GENERALLY - AND
MORE PARTICULARLY THE COST OF CAMPAIGNS AND CONTRIBUTIONS BY
PROSPECTIVE OFFICEHOLDERS, ESPECIALLY JUDGES - INVOLVES ISSUES OF FAR
REACHING IMPORTANCE TO A DEMOCRACY AND IS BESET WITH LEGISLATIVE
DIFFICULTIES THAT EVEN JUDGES CAN APPRECIATE.  BUT THESE DIFFICULTIES
CAN NEITHER BE MET NOR AVOIDED BY SPURIOUS INTERPRETATION OF TAX
PROVISIONS DEALING WITH ALLOWABLE DEDUCTIONS. 

TO FIND SANCTION IN EXISTING TAX LEGISLATION FOR DEDUCTION OF
PETITIONER'S CAMPAIGN EXPENDITURES WOULD NECESSARILY REQUIRE ALLOWANCE
OF DEDUCTION FOR CAMPAIGN EXPENDITURES BY ALL CANDIDATES, WHETHER
INCUMBENTS SEEKING REELECTION OR NEW CONTENDERS.  TO DRAW A DISTINCTION
BETWEEN OUTLAYS FOR REELECTION AND THOSE FOR ELECTION - TO ALLOW THE
FORMER AND DISALLOW THE LATTER - IS UNSUPPORTABLE IN REASON.  IT IS
EVEN MORE UNSUPPORTABLE IN PUBLIC POLICY TO DERIVE FROM WHAT CONGRESS
HAS THUS FAR ENACTED A HANDICAP AGAINST CANDIDATES CHALLENGING EXISTING
OFFICEHOLDERS.  AND SO WE CANNOT RECOGNIZE PETITIONER'S CLAIM ON THE
SCORE THAT HE WAS A CANDIDATE FOR REELECTION.  FN6 

EVEN IF THESE CONCLUSIONS, IN THE SETTING OF FEDERAL INCOME TAX
LEGISLATION, DERIVED LESS EASILY THAN THEY DO FROM THE STATUTORY
PROVISIONS UNDER SCRUTINY, WE SHOULD NOT BE INCLINED TO DISPLACE THE
VIEWS OF THE TAX COURT WITH OUR OWN.  FN7  OF COURSE THE TAX COURT
CANNOT DEFINE THE LIMITS OF ITS OWN AUTHORITY.  AND IN CASES LIKE
COMMISSIONER V. HEININGER, 320 U.S. 467, WHERE THE TAX COURT MISTAKENLY
FELT ITSELF BOUND BY SUPERIOR JUDICIAL AUTHORITY, WE MUST GIVE
CORRECTIVE RELIEF.  BUT, AS A SYSTEM, TAX LEGISLATION IS NOT TO BE
TREATED AS THOUGH IT WERE LOOSE TALK OR PRESENTED ISOLATED ABSTRACT
QUESTIONS OF LAW CASTING UPON THE FEDERAL COURTS THE TASK OF
INDEPENDENT CONSTRUCTION.  TAX LANGUAGE NORMALLY HAS AN ENCLOSED
MEANING OR HAS LEGITIMATELY ACQUIRED SUCH BY THE AUTHORITY OF THOSE
SPECIALLY SKILLED IN ITS APPLICATION.  TO SPEAK OF TAX DETERMINATIONS
MADE IN THE SYSTEM OF REVIEW SPECIALLY DESIGNED FOR FEDERAL TAX CASES
AS TECHNICAL IS NOT TO IMPLY OPPROBRIUM. 

HAVING REGARD TO THE CONTROVERSIES WHICH PECULIARLY CALL FOR THIS
COURT'S ADJUDICATION AND TO THE DEMANDS FOR THEIR ADEQUATE DISPOSITION,
AS WELL AS TO THE EXIGENCIES OF LITIGATION GENERALLY, RELATIVELY FEW
APPEALS FROM TAX COURT DECISIONS CAN IN ANY EVENT COME HERE.  THAT
COURT OF NECESSITY MUST BE THE MAIN AGENCY FOR NATION-WIDE SUPERVISION
OF TAX ADMINISTRATION.  WHATEVER THE STATUTORY OR PRACTICAL LIMITATIONS
UPON THE EXERCISE OF ITS AUTHORITY, CONGRESS HAS PLAINLY DESIGNED THAT
TRIBUNAL TO SERVE, AS IT WERE, AS THE EXCHEQUER COURT OF THE COUNTRY. 
DUE REGARD FOR THESE CONSIDERATIONS IS THE UNDERLYING RATIONALE OF
DOBSON V. COMMISSIONER, 320 U.S. 489.  WE ARE THEREFORE RELIEVED FROM
DISCUSSING THE NUMEROUS CASES IN WHICH THE TAX COURT OR ITS
PREDECESSOR, THE BOARD OF TAX APPEALS, ALLOWED OR DISALLOWED DEDUCTIONS
AND THEIR BEARING ON THE SITUATION BEFORE US.  TO DO SO INVOLVES
DETAILED ANALYSIS OF THE SPECIAL CIRCUMSTANCES OF VARIOUS "BUSINESSES"
AND EXPENSES INCIDENT TO THEIR "CARRYING ON."  WE SHALL NOT ENTER THIS
QUAGMIRE OF PARTICULARITIES.  AFFIRMED. 

FN1  "LOSSES BY INDIVIDUALS.  - IN THE CASE OF AN INDIVIDUAL, LOSSES
SUSTAINED DURING THE TAXABLE YEAR AND NOT COMPENSATED FOR BY INSURANCE
OR OTHERWISE  ...  IF INCURRED IN ANY TRANSACTION ENTERED INTO FOR
PROFIT, THOUGH NOT CONNECTED WITH THE TRADE OR BUSINESS." 

FN2  "NON-TRADE OR NON-BUSINESS EXPENSES.  - IN THE CASE OF AN
INDIVIDUAL, ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED
DURING THE TAXABLE YEAR FOR THE PRODUCTION OR COLLECTION OF INCOME, OR
FOR THE MANAGEMENT, CONSERVATION, OR MAINTENANCE OF PROPERTY HELD FOR
THE PRODUCTION OF INCOME."    FN3  "TRADE OR BUSINESS.  - THE TERM
'TRADE OR BUSINESS' INCLUDES THE PERFORMANCE OF THE FUNCTIONS OF A
PUBLIC OFFICE."  THIS AMENDMENT, ADDED BY THE REVENUE ACT OF 1934, 48
STAT. 680, 696, WAS MERELY "DECLARATORY OF EXISTING LAW."  S. REP. NO.
558, 73D CONG., 2D SESS., P. 29.  IT HAD "NOTHING TO DO" WITH CAMPAIGN
EXPENSES, 1 HEARINGS BEFORE COMMITTEE ON FINANCE ON H.R. 8735, 73D
CONG., 2D SESS. (MARCH 6, 1934), P. 29, WHICH CONTINUED TO BE OUTSIDE
DEDUCTIONS ALLOWED BY SEC. 23(A)(1). 

FN4  "A DEDUCTION UNDER THIS SECTION IS SUBJECT, EXCEPT FOR THE
REQUIREMENT OF BEING INCURRED IN CONNECTION WITH A TRADE OR BUSINESS,
TO ALL THE RESTRICTIONS AND LIMITATIONS THAT APPLY IN THE CASE OF THE
DEDUCTION UNDER SECTION 23(A)(1)(A) OF AN EXPENSE PAID OR INCURRED IN
CARRYING ON ANY TRADE OR BUSINESS."  H. REP. NO. 2333, 77TH CONG., 2D
SESS., P. 75; S. REP. NO. 1631, 77TH CONG., 2D SESS., P. 88. 

FN5  REED V. COMMISSIONER, 13 B.T.A. 513, REVERSED ON ANOTHER GROUND,
34 F.2D 263, REVERSED SUB NOM. LUCAS V. REED, 281 U.S. 699; TREAS. REG.
103, SEC. 19.23(A)-15; TREAS. REG. 103, SEC. 23(O)-1; O.D. 864, 4 CUM.
BULL.  211(1921). 

FN6  IN THE INTEREST OF ACCURACY IT IS TO BE POINTED OUT THAT
PETITIONER WAS NOT A CANDIDATE FOR REELECTION; HE WAS A CANDIDATE FOR
ELECTION FOR THE FIRST TIME. 

FN7  THAT THE TAX COURT MAY, AS IS SOMETIMES TRUE EVEN OF OTHER
COURTS, INDULGE IN NEEDLESS AND ERRONEOUS OBSERVATIONS IS BESIDE THE
POINT.  SEE HELVERING V. GOWRAN, 302 U.S. 238, 245-246. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE BLACK, DISSENTING. 

PETITIONER, A LAWYER OF MANY YEARS' EXPERIENCE, GAVE UP HIS PRACTICE
AND ACCEPTED APPOINTMENT AS A JUDGE UPON CONDITION THAT HE RUN TO
SUCCEED HIMSELF.  IN CAMPAIGNING FOR REELECTION HE INCURRED CERTAIN
CAMPAIGN EXPENSES.  THESE EXPENSES, ACCORDING TO THE CIRCUIT COURT OF
APPEALS WERE "LEGITIMATE IN THEIR ENTIRETY," AND "THE OBJECTIVE OF THE
EXPENDITURES WAS TO OBTAIN A CONSIDERABLE AMOUNT OF MONEY, OVER AT
LEAST A DECADE OF YEARS."  THIS COURT HAS NOT REACHED A CONTRARY
CONCLUSION.  FOR OUR PURPOSE, THEREFORE, WE MAY CONSIDER THAT THE
EXPENSES WERE INCURRED, AT LEAST IN PART, "FOR THE PRODUCTION  ...  OF
INCOME."  THE LITERAL LANGUAGE OF SEC. 121 OF THE REVENUE ACT OF 1942,
56 STAT. 798, 819, IS BROAD ENOUGH TO ALLOW A DEDUCTION FOR EXPENSES SO
INDUCED.  THAT STATUTE, WHICH CONGRESS MADE APPLICABLE RETROACTIVELY,
ALLOWS THE FOLLOWING DEDUCTION, IN COMPUTING NET INCOME: 

"IN THE CASE OF AN INDIVIDUAL, ALL THE ORDINARY AND NECESSARY
EXPENSES PAID OR INCURRED DURING THE TAXABLE YEAR FOR THE PRODUCTION OR
COLLECTION OF INCOME, OR FOR THE MANAGEMENT, CONSERVATION, OR
MAINTENANCE OF PROPERTY HELD FOR THE PRODUCTION OF INCOME." 

PRIOR TO THE ENACTMENT OF THIS SECTION, TAXPAYERS IN COMPUTING NET
INCOME WERE NOT ALLOWED DEDUCTIONS FROM GROSS INCOME FOR EXPENSES
INCURRED UNLESS THEY WERE "ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED  ...  IN CARRYING ON A TRADE OR BUSINESS."  CONGRESS, BY THIS
NEW SECTION, INTRODUCED A NEW TYPE OF DEDUCTION, FOR AS THE HOUSE AND
SENATE COMMITTEES SAID, IT ALLOWED  "...  A DEDUCTION FOR THE ORDINARY
AND NECESSARY EXPENSES OF AN INDIVIDUAL PAID OR INCURRED  ...  FOR THE
PRODUCTION AND COLLECTION OF INCOME  ..."  BEFORE THE 1942 ACT, AN
EXPENSE TO BE DEDUCTIBLE HAD TO BE "ORDINARY AND NECESSARY" IN ITS
RELATIONSHIP TO THE TAXPAYER'S BUSINESS; UNDER THE NEW SECTION IT NEED
ONLY BE "ORDINARY AND NECESSARY" IN ITS RELATIONSHIP TO THE TAXPAYER'S
EFFORTS TO PRODUCE INCOME.  HENCE, WHILE THE WORDS "ORDINARY AND
NECESSARY EXPENSES," DEFINING PERMISSIBLE DEDUCTIONS, REMAINED
UNCHANGED IN THE NEW SECTION, THEY WERE GIVEN ADDED CONTENT IN THEIR
NEW RELATIONSHIP.  OBVIOUSLY, TREASURY REGULATIONS AND DECISIONS
LIMITING THE SCOPE OF "ORDINARY AND NECESSARY" AS APPLIED TO BUSINESS
EXPENSES UNDER THE OLD LAW MAY BE WHOLLY UNSUITED TO DEFINE THE MEANING
OF THOSE WORDS IN THEIR NEW CONTEXT, AND SUCH RULINGS AND DECISIONS CAN
THROW LITTLE IF ANY LIGHT ON THE MEANING OF SEC. 121.  SINCE THE
ENACTMENT OF THE NEW SECTION, THE TWO QUESTIONS ESSENTIAL TO
DETERMINATION OF DEDUCTIBILITY ARE:  WERE THE EXPENSES INCURRED IN AN
EFFORT TO PRODUCE INCOME?  WERE THESE EXPENSES, OR PART OF THEM,
"ORDINARY AND NECESSARY" IN CONNECTION WITH THAT EFFORT?  THESE ARE IN
MOST INSTANCES PURE QUESTIONS OF FACT AND IN CASES SUCH AS THIS ARE TO
BE DETERMINED BY THE TAX COURT.  SEE COMMISSIONER V. HEININGER, 320
U.S. 467, 475.  THE TAX COURT DID NOT MAKE FINDINGS OF FACT ON THESE
CRUCIAL ISSUES, BUT CATEGORICALLY DENIED THAT CAMPAIGN EXPENSES COULD
BE DEDUCTED AT ALL.  THIS, I THINK, WAS AN ERRONEOUS INTERPRETATION OF
SEC. 121. 

THE 1942 ACT ARTICULATED THE PURPOSE OF CONGRESS TO WIPE OUT EVERY
VESTIGE OF A POLICY WHICH DENIED TAX DEDUCTIONS FOR LEGITIMATE EXPENSES
INCURRED IN PRODUCING TAXABLE INCOME.  TAXATION ON NET, NOT ON GROSS,
INCOME HAS ALWAYS BEEN THE BROAD BASIC POLICY OF OUR INCOME TAX LAWS. 
NET INCOME MAY BE DEFINED AS WHAT REMAINS OUT OF GROSS INCOME AFTER
SUBTRACTING THE ORDINARY AND NECESSARY EXPENSES INCURRED IN EFFORTS TO
OBTAIN OR TO KEEP IT.  IN 1941, THIS COURT UPHELD IN HIGGINS V.
COMMISSIONER, 312 U.S. 212, A FINDING OF THE BOARD OF TAX APPEALS THAT
ONE WHO MANAGED, CONSERVED AND MAINTAINED HIS OWN PROPERTY WAS NOT
ENGAGED IN A "TRADE OR BUSINESS" AND FOR THIS REASON WAS NOT ENTITLED
TO DEDUCT EXPENSES INCURRED IN PRODUCING HIS GROSS INCOME.  THE EFFECT
OF THIS HOLDING WAS TO IMPAIR THE GENERAL CONGRESSIONAL POLICY TO TAX
ONLY NET INCOME.  CONGRESS IN ITS REVENUE ACT OF 1942, SUPRA, TOOK NOTE
OF THIS IMPAIRMENT AND INDICATED IN A MOST FORTHRIGHT MANNER ITS
ALLEGIANCE TO THE NET INCOME TAX POLICY.  EXCEPT FOR TRANSACTIONS
CARRIED ON "PRIMARILY AS A SPORT, HOBBY, OR RECREATION," SEE SENATE AND
HOUSE COMMITTEE REPORTS, SUPRA, CONGRESS PROVIDED A DEDUCTION FOR ALL
ORDINARY AND NECESSARY EXPENSES INCURRED IN THE PRODUCTION OF INCOME. 
THE LANGUAGE IT UTILIZED WAS CERTAINLY FOR BROADER THAN WAS REQUIRED TO
MEET THE NARROW PROBLEM PRESENTED BY THE HIGGINS CASE.  CONGRESS
SPECIFICALLY DISPOSED OF THE HIGGINS PROBLEM BY ALLOWING A DEDUCTION
FOR THE EXPENSES INCURRED IN  "...  THE MANAGEMENT, CONSERVATION OR
MAINTENANCE OF PROPERTY HELD FOR THE PRODUCTION OF INCOME."  HAD
CONGRESS SIMPLY ENACTED THESE WORDS, AND NOTHING MORE, IT MIGHT
PROPERLY HAVE BEEN INFERRED THAT IT INTENDED TO GRANT THE TYPE OF
DEDUCTION DENIED IN THE HIGGINS CASE, AND NO OTHER.  BUT IT PROVIDED AN
ADDITIONAL DEDUCTION, IN THE VERY SAME SECTION, FOR EXPENSES INCURRED
"IN THE PRODUCTION  ...  OF INCOME."  TO HOLD, THEREFORE, THAT CONGRESS
IN THIS NEW SECTION WAS CONCERNING ITSELF ONLY WITH THE RESTRICTED
ISSUE CREATED BY THE HIGGINS CASE, IS TO DENY ANY MEANING OR VALIDITY
TO THIS LATTER CLAUSE; IN A LARGER SENSE, SUCH A CONSTRUCTION CARVES
OUT OF THE SECTION A VITAL SEGMENT WHICH CONGRESS INTENTIONALLY - OR SO
WE MUST ASSUME - PUT THERE. 

THE COURT INTERPRETS SEC. 121 AS NOT PERMITTING THE DEDUCTIONS,
WITHOUT DENYING THAT THE EXPENDITURES WERE MADE BY PETITIONER FOR "THE
PRODUCTION OF INCOME."  THIS INTERPRETATION RESTS IN PART ON THE
CONCLUSION THAT THE SECTION IN NO WISE APPLIES TO EXPENSES INCURRED IN
"BUSINESS," AND THAT THE DEDUCTIONS CLAIMED BY THE PETITIONER WERE IN
RELATION TO A "BUSINESS" EXPLICITLY SO DENOMINATED BY SEC. 48(D) OF THE
INTERNAL REVENUE CODE.  FN1  THE COURT'S CONSTRUCTION WOULD APPEAR TO
BE QUITE DIFFERENT FROM THAT OF THE HOUSE AND SENATE COMMITTEES WHICH
REPORTED THEIR CONSTRUCTION OF THE MEASURE TO THEIR RESPECTIVE BODIES. 
THE REPORTS EXPRESSLY STATED THAT "THE AMENDMENT  ...  ALLOWS A
DEDUCTION FOR THE ORDINARY AND NECESSARY EXPENSES OF AN INDIVIDUAL
INCURRED DURING THE TAXABLE YEAR FOR THE PRODUCTION AND COLLECTION OF
INCOME  ...  WHETHER OR NOT SUCH EXPENSES ARE INCURRED IN CARRYING ON A
TRADE OR BUSINESS."  WE CANNOT QUESTION THE SPECIAL COMPETENCE OF THESE
TWO COMMITTEES TO INTERPRET THEIR OWN LEGISLATION.  CONGRESS THEREFORE
APPARENTLY INTENDED TO OBLITERATE THE LEGAL NICETIES OF THE "TRADE OR
BUSINESS" DISTINCTION, INSOFAR AS THEY AFFECTED DEDUCTIONS FOR EXPENSES
INCURRED IN THE "PRODUCTION AND COLLECTION OF INCOME." 

THE COURT'S DECISION IS ALSO GROUNDED UPON ITS REFERENCE TO
CONGRESSIONAL POLICY RESTRICTING COMPAIGN CONTRIBUTIONS AND POLITICAL
ACTIVITIES BY GOVERNMENT OFFICIALS.  WE ARE NOT DEALING HERE, HOWEVER,
WITH CAMPAIGN CONTRIBUTIONS MADE BY ONE PERSON TO FURTHER THE CANDIDACY
OF ANOTHER.  BESIDES, CONGRESS HAS NOT ATTEMPTED TO REGULATE
EXPENDITURES OF CANDIDATES FOR STATE OFFICE.  I CAN HARDLY CONCEIVE
THAT WE SHOULD INFER THAT IT WANTED TO PENALIZE THROUGH ITS TAX LAWS
NECESSARY CAMPAIGN EXPENSES, AND THEREBY CONDEMN A PRACTICE OF
CAMPAIGNING THAT IS AS OLD AS OUR COUNTRY AND WHICH EXISTS IN EVERY
STATE OF THE UNION.  UNLESS OUR DEMOCRATIC PHILOSOPHY IS WRONG, THERE
CAN BE NO EVIL IN A CANDIDATE SPENDING A LEGALLY PERMISSIBLE AND
NECESSARY SUM TO APPROACH THE ELECTORATE AND ENABLE THEM TO PASS AN
INFORMED JUDGMENT UPON HIS QUALIFICATIONS.  THIS IS NOT, OF COURSE, TO
BE TAKEN AS DENOTING APPROVAL OF CORRUPT CAMPAIGN EXPENDITURES, OR OF
ANY OF THE MYRIAD ABUSES WHICH BESET OUR SYSTEMS OF ELECTION.  BUT WE
OUGHT NOT TO EVISCERATE A REVENUE ACT, AND DENY THIS STATE OFFICIAL A
DEDUCTION FOR EXPENSES INCURRED IN A STATE ELECTION CAMPAIGN, BECAUSE
CONGRESS HAS LIMITED CAMPAIGN CONTRIBUTIONS IN FEDERAL ELECTIONS, AND
PASSED RESTRICTIVE LEGISLATION AGAINST POLITICAL ACTIVITIES BY FEDERAL
EMPLOYEES. 

THE TAX COURT TOO RELIED UPON GROUNDS OF PUBLIC POLICY.  IT THOUGHT
IT CONTRARY TO "THE BASIC IDEOLOGY UNDERLYING THE PRINCIPLES OF OUR
GOVERNMENT" TO HOLD THAT A PUBLIC OFFICE CONSTITUTES A "TRADE OR
BUSINESS," ALTHOUGH CONGRESS FOR TAX PURPOSES HAD DECLARED IT WAS.  THE
TAX COURT ALSO THOUGHT THAT "UNDER THE BAN OF PUBLIC CONSCIENCE AND
...  PUBLIC POLICY IS THE CONTENTION THAT EXPENDITURES MADE TO PROMOTE
ONE'S CANDIDACY FOR ELECTION TO PUBLIC OFFICE REPRESENT EXPENSES 'PAID
...  FOR THE PRODUCTION OR COLLECTION OF INCOME.'"  PUBLIC OFFICIALS IN
THIS COUNTRY, MANY OF WHOM MUST CAMPAIGN FOR ELECTION, ARE ALMOST
UNIVERSALLY PAID FOR THEIR SERVICES.  THAT WE DO PAY OUR PUBLIC
SERVANTS IS NOT AT ALL INCONSISTENT WITH THE FACT THAT PUBLIC SERVICE
IN A LARGE MEASURE REPRESENTS AN HONEST EXPRESSION OF THE SOCIAL
CONSCIENCE.  NOR DOES INDIVIDUAL DEPENDENCE UPON REMUNERATION FOR SUCH
SERVICES DETRACT AT ALL FROM THE HIGH AND UNCOMPROMISING STANDARDS OF
THOSE WHO PERFORM PUBLIC DUTIES.  WITHOUT MONETARY REWARDS OFFICE
HOLDING WOULD NECESSARILY BE LIMITED TO ONE CLASS ONLY - THE
INDEPENDENTLY WEALTHY.  PROPOSALS TO ACCOMPLISH SUCH A PURPOSE WERE
DELIBERATELY REJECTED AT THE VERY BEGINNING OF THE NATION'S HISTORY.  I
DENY THE EXISTENCE OF A PUBLIC POLICY WHICH, WHILE PERMITTING CONGRESS
TO TAX THE INCOME OF ELECTED PUBLIC OFFICIALS, BARS CONGRESS FROM
ALLOWING A DEDUCTION FOR NECESSARY CAMPAIGN EXPENSES. 

IT IS SAID THAT DOBSON V. COMMISSIONER, 320 U.S. 489, GIVES SOME
SUPPORT TO THE COURT'S DECISION, AND THAT WE SHOULD NOT "DISPLACE THE
VIEWS OF THE TAX COURT WITH OUR OWN."  CF. SECURITY FLOUR MILLS CO. V.
COMMISSIONER, 321 U.S. 281.  THE COURT'S OPINION DOES EXACTLY THAT, FOR
IT RESTS IN PART UPON ITS HOLDING THAT MCDONALD AS A JUDGE WAS ENGAGED
IN "BUSINESS," WHILE THE TAX COURT SPECIFICALLY FOUND THAT HE WAS NOT. 
NEITHER THE DOBSON CASE NOR ANY OTHER TO WHICH THE COURT'S OPINION
POINTS HAS INDICATED THAT WE SHOULD AUTOMATICALLY ACCEPT THE TAX
COURT'S CONSTRUCTION OF A STATUTE, WHILE REPUDIATING THE REASONS ON
WHICH ITS CONCLUSION RESTED. 

STATE OFFICIALS ALL OVER THIS NATION HAVE BEEN SUBJECT TO FEDERAL
INCOME TAXES SINCE 1939.  WHEN THEY RUN FOR OFFICE, THEY MUST
NECESSARILY SPEND SOME MONEY TO ADVERTISE THEIR CAMPAIGNS.  WE PERMIT
PRIVATE INDIVIDUALS TO DEDUCT EXPENSES INCURRED IN ADVERTISING TO GET
BUSINESS.  IF THIS PETITIONER HAD OWNED A FACTORY, THE OPERATIONS OF
WHICH WERE SUSPENDED BECAUSE OF WAR CONTRACTS, AND HAD ADVERTISED GOODS
WHICH HE COULD NOT PRESENTLY SELL, THE EXPENSES OF SUCH ADVERTISING
WOULD HAVE BEEN DEDUCTIBLE UNDER TREASURY RULINGS.  FN2 

SO LONG AS CAMPAIGN EXPENSES SPENT BY CANDIDATES ARE LEGITIMATE,
ORDINARY, AND NECESSARY, I AM UNWILLING TO ASSUME THAT CONGRESS
INTENDED BY THE 1942 ACT TO DISCRIMINATE AGAINST THE THOUSANDS OF STATE
OFFICIALS SUBJECT TO FEDERAL INCOME TAXES.  THE LANGUAGE CONGRESS USED
LITERALLY PROTECTS PETITIONER'S RIGHT TO A DEDUCTION; NOTHING IN THE
LEGISLATIVE HISTORY INDICATES AN INTENT TO DENY IT.  CERTAINLY THERE
ARE ABUSES IN CAMPAIGN EXPENDITURES.  BUT THAT IS A PROBLEM THAT SHOULD
BE ATTACKED SQUARELY BY THE PROPER STATE AND FEDERAL AUTHORITIES, AND
NOT BY STRAINED STATUTORY CONSTRUCTION WHICH PERMITS A DISCRIMINATORY
PENALTY TO BE IMPOSED ON TAXPAYERS WHO WORK FOR THE STATES, COUNTIES,
MUNICIPALITIES, OR THE FEDERAL GOVERNMENT.  I THINK WE SHOULD REVERSE
AND REMAND THIS CAUSE TO THE TAX COURT WITH INSTRUCTIONS TO PASS UPON
THE FACTUAL QUESTIONS WHICH IT DID NOT PREVIOUSLY DETERMINE. 

FN1  CF. UNITED STATES V. PYNE, 313 U.S. 127.  IF THE PETITIONER IS
TO BE DENIED THE BENEFIT OF THE DEDUCTION UNDER THE 1942 AMENDMENT
(SEC. 121(A)(2)) ON THE GROUND THAT THESE EXPENSES WERE INCURRED IN A
"BUSINESS," THEN IT IS DIFFICULT TO UNDERSTAND WHY HE SHOULD BE DENIED
THE DEDUCTION UNDER SEC. 23(A)(1)(A) OF THE INTERNAL REVENUE CODE,
WHICH PROVIDES DEDUCTIONS FOR EXPENSES INCURRED IN CARRYING ON A
BUSINESS.  ON THE ONE HAND, THE COURT DENIES THE DEDUCTION BECAUSE THE
EXPENSES WERE INCURRED IN RELATION TO A "BUSINESS"; ON THE OTHER HAND,
THE COURT DENIES THE DEDUCTION AS A "BUSINESS EXPENSE" ON THE GROUND
THAT HIS EXPENSES "WERE NOT INCURRED IN 'CARRYING ON' HIS
'BUSINESS'..."  THIS IS A DISTINCTION WITHOUT A DIFFERENCE, TWO PHRASES
WITH BUT A SINGLE THOUGHT.    FN2  I.T. 3581, 1-2 CUM. BULL.  88(1942);
I.T. 3564, 1-2 CUM. BULL.  87(1942).  THE FOLLOWING TYPES OF EXPENSES
HAVE BEEN HELD TO BE DEDUCTIBLE AS BUSINESS EXPENSES:  "...  PAYMENTS
BY BREWERS TO ASSOCIATIONS TO COMBAT PROHIBITION; RAILROAD
CONTRIBUTIONS TO AN ASSOCIATION CONDUCTING A CAMPAIGN TO CREATE
FAVORABLE PUBLIC OPINION; FEES PAID TO ORGANIZATIONS TO AVOID LABOR
TROUBLE AND COMBAT UNIONIZATION, AND ALSO UNION DUES; PAYMENTS TO A
FUND TO FIGHT THE BOLL WEEVIL BY A TAXPAYER IN THE COTTON BUSINESS;
MEMBERSHIP FEES OR DUES PAID BY INDIVIDUALS OR CORPORATIONS TO A
CHAMBER OF COMMERCE OR BOARD OF TRADE WHERE THE MEMBERSHIP IS EMPLOYED
AS A MEANS OF ADVANCING THE BUSINESS INTERESTS OF THE INDIVIDUAL OR
CORPORATION; ...  CONTRIBUTIONS TO A CHAMBER OF COMMERCE ENGAGED IN
STIMULATING AND EXPANDING LOCAL BUSINESS; ASSESSMENTS PAID BY MEMBER
BANKS TO A CLEARING HOUSE ASSOCIATION AS A MEANS OF FURTHERING THEIR
BUSINESS INTERESTS, AS WELL AS AMOUNTS TO BE DISTRIBUTED BY THE
ASSOCIATION TO CIVIC ORGANIZATIONS FOR BUILDING UP LOCAL TRADE;
PAYMENTS TO ORGANIZATIONS DESIGNED TO EXPAND TRADE; AND MEMBERSHIP DUES
PAID ASSOCIATIONS ORGANIZED TO PROMOTE THE BUSINESS INTERESTS OF THE
MEMBERS BY THE COLLECTION AND DISSEMINATION TO ITS MEMBERS OF
INFORMATION AND STATISTICS."  4 MERTENS, LAW OF FEDERAL INCOME
TAXATION, 505-7, AND CASES THEREIN CITED.  FOR FURTHER ANALOGOUS
BUSINESS EXPENSE DEDUCTIONS, SEE 4 MERTENS, IBID., CHAPTER 25. 

MR. JUSTICE REED, MR. JUSTICE DOUGLAS, AND MR. JUSTICE MURPHY JOIN IN
THIS DISSENT. 
..END :





















POPE V. UNITED STATES, 323 U.S. 1 


NO. 26.  ARGUED OCTOBER 16, 1944.  - DECIDED NOVEMBER 6, 1944.  - 100
CT. CLS. 375, REVERSED. 


BY THE SPECIAL ACT OF FEBRUARY 27, 1942, CONGRESS CONFERRED UPON THE
COURT OF CLAIMS JURISDICTION TO HEAR, DETERMINE AND RENDER JUDGMENT
UPON CERTAIN CLAIMS OF A CONTRACTOR AGAINST THE GOVERNMENT, IN
CONFORMITY WITH DIRECTIONS GIVEN IN THE ACT.  THE COURT HAD PREVIOUSLY
DENIED RECOVERY ON THE CLAIMS.  THE ACT AUTHORIZED REVIEW HERE BY
CERTIORARI.  HELD: 

1.  THE ACT IS TO BE CONSTRUED NOT AS SETTING ASIDE THE JUDGMENT IN A
CASE ALREADY DECIDED OR AS CHANGING THE RULES OF DECISION FOR THE
DETERMINATION OF A PENDING CASE, BUT RATHER AS CREATING A NEW
OBLIGATION OF THE GOVERNMENT TO PAY THE CONTRACTOR'S CLAIMS WHERE NO
OBLIGATION EXISTED BEFORE.  UNITED STATES V. KLEIN, 13 WALL.  128,
DISTINGUISHED.  P. 8. 

(A)  THERE IS NO CONSTITUTIONAL OBSTACLE TO CONGRESS' IMPOSING ON THE
GOVERNMENT A NEW OBLIGATION WHERE NONE EXISTED BEFORE, FOR WORK
PERFORMED BY THE CONTRACTOR WHICH WAS BENEFICIAL TO THE GOVERNMENT AND
FOR WHICH CONGRESS THOUGHT HE HAD NOT BEEN ADEQUATELY COMPENSATED.  P.
9. 

(B)  THE POWER OF CONGRESS TO PROVIDE FOR THE PAYMENT OF DEBTS,
CONFERRED BY SEC. 8 OF ARTICLE I OF THE CONSTITUTION, IS NOT RESTRICTED
TO PAYMENT OF THOSE DEBTS WHICH ARE LEGALLY BINDING ON THE GOVERNMENT,
BUT EXTENDS TO THE CREATION OF SUCH OBLIGATIONS IN RECOGNITION OF
CLAIMS WHICH ARE MERELY MORAL OR HONORARY.  P. 9. 

2.  BY THE CREATION OF A LEGAL, IN RECOGNITION OF A MORAL, OBLIGATION
TO PAY THE CONTRACTOR'S CLAIMS, CONGRESS DID NOT ENCROACH UPON THE
JUDICIAL FUNCTION WHICH THE COURT OF CLAIMS HAD PREVIOUSLY EXERCISED IN
ADJUDICATING THAT THE OBLIGATION WAS NOT LEGAL.  P. 10. 

3.  NOR DID THE ACT ENCROACH UPON THE JUDICIAL FUNCTION OF THE COURT
OF CLAIMS BY DIRECTING THAT COURT TO PASS UPON THE CONTRACTOR'S CLAIMS
IN CONFORMITY TO THE PARTICULAR RULE OF LIABILITY PRESCRIBED BY THE ACT
AND TO GIVE JUDGMENT ACCORDINGLY.  P. 10. 

(A)  BY THE ACT, CONGRESS IN EFFECT CONSENTED TO JUDGMENT IN AN
AMOUNT TO BE ASCERTAINED BY REFERENCE TO SPECIFIED DATA.  P. 11. 

(B)  WHEN A PLAINTIFF BRINGS SUIT TO ENFORCE A LEGAL OBLIGATION IT IS
NOT ANY THE LESS A CASE OR CONTROVERSY, UPON WHICH A COURT POSSESSING
THE FEDERAL JUDICIAL POWER MAY RIGHTLY GIVE JUDGMENT, BECAUSE THE
PLAINTIFF'S CLAIM IS UNCONTESTED OR INCONTESTABLE.  P. 11. 

(C)  WHETHER THE ACT MAKES THE FINDINGS IN THE EARLIER SUIT
CONCLUSIVE, AND, IF NOT, WHETHER THE EVIDENCE WOULD ESTABLISH THE FACTS
ON WHICH THE ACT PREDICATES LIABILITY, ARE JUDICIAL QUESTIONS.  P. 11. 

(D)  WHETHER THE FACTS BE ASCERTAINED BY PROOF OR BY STIPULATION, IT
IS STILL A PART OF THE JUDICIAL FUNCTION TO DETERMINE WHETHER THERE IS
A LEGALLY BINDING OBLIGATION AND, IF SO, TO GIVE JUDGMENT FOR THE
AMOUNT DUE EVEN THOUGH THE AMOUNT DEPENDS UPON MERE COMPUTATION.  P.
11. 

4.  THE ACT AUTHORIZED THE CLAIMANT TO INVOKE THE JUDICIAL POWER OF
THE COURT OF CLAIMS AND HE DID SO.  P. 12. 

5.  THE APPELLATE JURISDICTION CONFERRED UPON THIS COURT BY ART. III,
SEC. 2, CL. 2 OF THE CONSTITUTION EXTENDS TO DECISIONS OF THE COURT OF
CLAIMS RENDERED IN EXERCISE OF ITS JUDICIAL FUNCTIONS, AND SUCH
APPELLATE REVIEW IS NOT PRECLUDED BY THE FACT THAT CONGRESS HAS ALSO
IMPOSED UPON THE COURT OF CLAIMS NON-JUDICIAL FUNCTIONS OF AN
ADMINISTRATIVE OR LEGISLATIVE CHARACTER.  P. 13. 

6.  THE COURT OF CLAIMS' DETERMINATION THAT THE ACT CONFERRED UPON IT
ONLY NON-JUDICIAL FUNCTIONS AND HENCE THAT IT HAD NO JUDICIAL DUTY TO
PERFORM WAS ITSELF AN EXERCISE OF JUDICIAL POWER REVIEWABLE HERE. 
POSTUM CEREAL CO. V. CALIFORNIA FIG NUT CO., 272 U.S. 693,
DISTINGUISHED.  P. 14. 

POPE V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 321 U.S. 761, TO REVIEW THE DISMISSAL OF A PROCEEDING
BROUGHT IN THE COURT OF CLAIMS PURSUANT TO A SPECIAL JURISDICTIONAL
ACT, WHICH THAT COURT HELD UNCONSTITUTIONAL. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER CONGRESS EXCEEDED ITS
CONSTITUTIONAL AUTHORITY IN ENACTING THE SPECIAL ACT OF FEBRUARY 27,
1942, 56 STAT. 1122,  FN1  BY WHICH, "NOTWITHSTANDING ANY PRIOR
DETERMINATION" OR "ANY STATUTE OF LIMITATIONS," IT PURPORTED TO CONFER
JURISDICTION ON THE COURT OF CLAIMS TO "HEAR AND DETERMINE," AND
DIRECTED IT TO "RENDER JUDGMENT" UPON, CERTAIN CLAIMS OF PETITIONER
AGAINST THE GOVERNMENT IN CONFORMITY TO DIRECTIONS GIVEN IN THE ACT. 

PETITIONER BROUGHT THE PRESENT PROCEEDING IN THE COURT OF CLAIMS TO
RECOVER UPON HIS CLAIMS AS SPECIFIED AND SANCTIONED BY THE SPECIAL
ACT.  THE COURT DISMISSED THE PROCEEDING ON THE GROUND THAT THE ACT WAS
UNCONSTITUTIONAL.  100 CT. CLS. 375.  IT THOUGHT THAT IN REQUIRING THE
COURT TO MAKE A MATHEMATICAL CALCULATION OF THE AMOUNT OF PETITIONER'S
CLAIMS UPON THE BASIS OF DATA ENUMERATED IN THE ACT AND TO GIVE
JUDGMENT FOR THE AMOUNT SO ASCERTAINED, NOTWITHSTANDING THE REJECTION
OF THOSE CLAIMS IN AN EARLIER SUIT IN THE COURT OF CLAIMS, THE ACT WAS
AN UNCONSTITUTIONAL ENCROACHMENT BY CONGRESS UPON THE JUDICIAL FUNCTION
OF THE COURT.  HOLDING THAT IT WAS FREE TO IGNORE THE CONGRESSIONAL
COMMAND BECAUSE GIVEN WITHOUT CONSTITUTIONAL AUTHORITY, THE COURT GAVE
JUDGMENT DISMISSING THE PROCEEDING. 

THE CASE COMES HERE ON PETITION FOR CERTIORARI WHICH ASSIGNS AS ERROR
THE RULING BELOW THAT THE CONGRESSIONAL MANDATE WAS WITHOUT
CONSTITUTIONAL AUTHORITY.  BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
INVOLVED WE ISSUED THE WRIT, 321 U.S. 761.  FOR REASONS WHICH WILL
PRESENTLY APPEAR, WE HOLD THAT WE HAVE JURISDICTION TO REVIEW THE
JUDGMENT BELOW. 

SEVERAL YEARS BEFORE THE ENACTMENT OF THE SPECIAL ACT, PETITIONER
BROUGHT SUIT IN THE COURT OF CLAIMS TO RECOVER AMOUNTS ALLEGED TO BE
DUE UPON HIS CONTRACT WITH THE GOVERNMENT FOR THE CONSTRUCTION OF A
TUNNEL AS A PART OF THE WATER SYSTEM OF THE DISTRICT OF COLUMBIA.  THE
CONSTRUCTION INVOLVED CERTAIN EXCAVATION AND CERTAIN FILLING OF THE
EXCAVATED SPACE, IN PART WITH CONCRETE AND IN PART WITH DRY PACKING AND
GROUT.  DRY PACKING CONSISTS OF CLOSELY PACKED BROKEN ROCK, INTO WHICH
IS PUMPED THE GROUT, A THIN LIQUID MIXTURE OF SAND, CEMENT AND WATER,
WHICH, WHEN IT HARDENS, SERVES TO SOLIDIFY AND STRENGTHEN THE DRY
PACKING. 

INCLUDED IN THE DEMANDS FOR WHICH THE SUIT WAS BROUGHT WERE CERTAIN
CLAIMS WHICH ARE NOW ASSERTED IN THIS PROCEEDING.  THEY COMPRISE A
CLAIM FOR ADDITIONAL EXCAVATION AND CONCRETE WORK ALLEGED TO HAVE BEEN
REQUIRED BECAUSE OF CERTAIN ORDERS OF THE CONTRACTING OFFICER, AND A
CLAIM FOR DRY PACKING AND GROUT FURNISHED BY PETITIONER AND PLACED BY
HIM IN CERTAIN EXCAVATED SPACE OUTSIDE THE SO-CALLED "B" LINE SHOWN ON
THE CONTRACT DRAWINGS.  THE "B" LINE MARKED THE OUTER LIMITS OF THE
TUNNEL BEYOND WHICH, BY THE TERMS OF THE CONTRACT, PETITIONER WAS NOT
TO BE PAID FOR EXCAVATION. 

IN THE FIRST SUIT IT APPEARED THAT PETITIONER SOUGHT RECOVERY FOR
EXCAVATION, FOR WHICH HE HAD NOT BEEN PAID, OF THE SPACE AT THE TOP OF
THE TUNNEL WHERE THE CONTRACTING OFFICER HAD LOWERED THE "B" LINE BY
THREE INCHES, THUS DECREASING THE SPACE FOR THE EXCAVATION FOR WHICH
THE CONTRACT AUTHORIZED PAYMENT TO BE MADE.  THE COURT OF CLAIMS DENIED
RECOVERY OF THIS ITEM.  THE CONTRACTING OFFICER HAD ALSO DIRECTED THE
OMISSION OF CERTAIN TIMBER SUPPORTS OR LAGGING REQUIRED BY THE CONTRACT
TO BE PLACED ON THE SIDE WALLS OF CERTAIN SECTIONS OF THE TUNNEL.  CAVE
INS FROM THE SIDES RESULTED, MAKING IT NECESSARY THAT THE CAVED-IN
MATERIAL BE REMOVED AND THAT THE RESULTING SPACE BE FILLED WITH
CONCRETE, ALL AT INCREASED EXPENSE TO PETITIONER.  THE COURT OF CLAIMS
MADE FINDINGS SHOWING THE AMOUNT OF THE ADDITIONAL EXCAVATION AND
CONCRETE WORK CLAIMED, BUT DENIED RECOVERY ON THESE ITEMS BECAUSE THE
ORDER OF THE CONTRACTING OFFICER FOR THE ADDITIONAL WORK INVOLVED A
CHANGE IN THE CONTRACT WHICH WAS NOT IN WRITING AS THE CONTRACT
REQUIRED. 

THE COURT OF CLAIMS ALSO DENIED PETITIONER'S CLAIM FOR DRY PACKING
AND GROUT.  IT WAS OF OPINION THAT THE GOVERNMENT HAD RECEIVED THE
BENEFIT OF AND WAS LIABLE FOR WHATEVER DRY PACKING PETITIONER HAD DONE
AND FOR SO MUCH OF THE GROUT AS HAD ACTUALLY FOUND ITS WAY INTO THE DRY
PACKED SPACE AND HAD REMAINED THERE.  BUT IT DENIED RECOVERY BECAUSE OF
DEFICIENCY IN THE PROOF AS TO THE EXTENT OF THIS SPACE.  THE ONLY PROOF
OFFERED WAS THE "LIQUID METHOD" OF COMPUTATION, BASED ON THE NUMBER OF
BAGS OF CEMENT USED IN THE PREPARATION OF ALL THE GROUT FURNISHED BY
PETITIONER, THE CEMENT CONSTITUTING A FIXED PROPORTION OF THE GROUT. 
THE COURT HELD, WITH THE GOVERNMENT, THAT THE SEEPAGE OF THE GROUT INTO
AREAS OUTSIDE THAT DRY PACKED RENDERED THE LIQUID METHOD AN UNRELIABLE
MEASURE FOR DETERMINING EITHER THE VOLUME OF THE DRY PACKING OR THE
AMOUNT OF THE GROUT REQUIRED FOR IT.  THE COURT GAVE JUDGMENT
ACCORDINGLY, WHILE ALLOWING TO PETITIONER OTHER CLAIMS UPON HIS
CONTRACT WITH WHICH WE ARE NOT HERE CONCERNED.  PETITIONER'S MOTIONS
FOR A NEW TRIAL WERE DENIED BY THE COURT OF CLAIMS, AND THIS COURT
DENIED CERTIORARI.  303 U.S. 654. 

THE SPECIAL ACT OF CONGRESS DIRECTED THE COURT OF CLAIMS TO "RENDER
JUDGMENT AT CONTRACT RATES UPON THE CLAIMS" OF PETITIONER FOR "CERTAIN
WORK PERFORMED FOR WHICH HE HAS NOT BEEN PAID, BUT OF WHICH THE
GOVERNMENT HAS RECEIVED THE USE AND BENEFIT," AND GAVE JURISDICTION TO
THIS COURT TO REVIEW THE JUDGMENT BY CERTIORARI.  SECTION 2 OF THE ACT
DEFINED THE WORK TO BE COMPENSATED AS "THE EXCAVATION AND CONCRETE WORK
FOUND BY THE COURT TO HAVE BEEN PERFORMED BY THE SAID POPE IN COMPLYING
WITH CERTAIN ORDERS OF THE CONTRACTING OFFICER, WHEREBY THE PLANS FOR
THE WORK WERE SO CHANGED AS TO LOWER THE UPPER 'B' OR 'PAY' LINE THREE
INCHES, AND AS TO OMIT THE TIMBER LAGGING FROM THE SIDE WALLS OF THE
TUNNEL; AND FOR THE WORK OF EXCAVATING MATERIALS WHICH CAVED IN OVER
THE TUNNEL ARCH AND FOR FILLING SUCH CAVED-IN SPACES WITH DRY PACKING
AND GROUT, AS DIRECTED BY THE CONTRACTING OFFICER, THE AMOUNT OF DRY
PACKING TO BE DETERMINED BY THE LIQUID METHOD AS DESCRIBED BY THE COURT
AND BASED ON THE VOLUME OF GROUT ACTUALLY USED, AND THE AMOUNT OF GROUT
TO BE AS DETERMINED BY THE COURT'S PREVIOUS FINDINGS BASED ON THE
NUMBER OF BAGS OF CEMENT USED IN THE GROUT ACTUALLY PUMPED INTO DRY
PACKING." 

THE ACT FURTHER DIRECTED THAT THE COURT SHOULD CONSIDER AS EVIDENCE
IN THE CASE "ANY OR ALL OF THE EVIDENCE" TAKEN BY EITHER PARTY IN THE
EARLIER SUIT, "TOGETHER WITH ANY ADDITIONAL EVIDENCE WHICH MAY BE
TAKEN." 

THE COURT OF CLAIMS IN CONSTRUING THE SPECIAL ACT SAID (100 CT. CLS.
P. 379): 

"A REREADING OF SECTION 2 OF THE ACT WILL SHOW THAT THE TASK WHICH
THE COURT IS DIRECTED TO PERFORM IS A SMALL AND UNIMPORTANT ONE.  IT IS
DIRECTED TO REFER TO ITS PREVIOUS FINDINGS, TAKE CERTAIN CUBIC
MEASUREMENTS AND CERTAIN NUMBERS OF BAGS OF CEMENT WHICH ARE RECITED
THERE BY REFERENCE, MULTIPLY THOSE FIGURES BY THE SEVERAL UNIT PRICES
STIPULATED IN THE CONTRACT FOR THE SEVERAL KINDS OF WORK, ADD THE
RESULTS AND RENDER JUDGMENT FOR THE PLAINTIFF FOR THE SUM.  IF THIS
READING OF SECTION 2 IS CORRECT, NOT ONLY DOES THE SPECIAL ACT PURPORT
TO CONFER UPON THE PLAINTIFF THE UNUSUAL PRIVILEGE OF LITIGATING THE
SAME CASE A SECOND TIME IN A COURT WHICH ONCE FINALLY DECIDED IT, AND
APPLYING A SECOND TIME FOR A REVIEW IN THE SUPREME COURT OF THE UNITED
STATES, WHICH ONCE CONSIDERED AND DENIED SUCH A REVIEW.  THE SPECIAL
ACT ALSO PURPORTS TO DECIDE THE QUESTIONS OF LAW WHICH WERE IN THE CASE
UPON ITS FORMER TRIAL AND WOULD, BUT FOR THE ACT, BE IN IT NOW, AND TO
DECIDE ALL QUESTIONS OF FACT EXCEPT CERTAIN SIMPLE COMPUTATIONS."  SO
CONSTRUED IT THOUGHT THE SPECIAL ACT DIRECTED THE COURT OF CLAIMS TO
DECIDE AGAIN THE CASE OR CONTROVERSY WHICH IT HAD DECIDED IN THE FIRST
SUIT, "TO DECIDE IT FOR THE PLAINTIFF AND GIVE HIM A JUDGMENT FOR AN
AMOUNT" DETERMINED BY A "SIMPLE COMPUTATION, BASED UPON DATA REFERRED
TO IN THE SPECIAL ACT."  THIS, IT CONCLUDED, CONGRESS COULD NOT
"EFFECTIVELY DIRECT." 

FOR THIS CONCLUSION IT RELIED UPON UNITED STATES V. KLEIN, 13 WALL. 
128, IN WHICH THIS COURT RULED THAT CONGRESS WAS WITHOUT CONSTITUTIONAL
POWER TO PRESCRIBE A RULE OF DECISION FOR A CASE PENDING ON APPEAL IN
THIS COURT SO AS TO REQUIRE IT TO ORDER DISMISSAL OF THE SUIT IN WHICH
THE COURT OF CLAIMS HAD GIVEN JUDGMENT FOR THE CLAIMANT.  DECISION WAS
RESTED UPON THE GROUND THAT THE JUDICIAL POWER OVER THE PENDING APPEAL
RESIDED WITH THIS COURT IN THE EXERCISE OF ITS APPELLATE JURISDICTION,
AND THAT CONGRESS WAS WITHOUT CONSTITUTIONAL AUTHORITY TO CONTROL THE
EXERCISE OF ITS JUDICIAL POWER AND THAT OF THE COURT BELOW BY REQUIRING
THIS COURT TO SET ASIDE THE JUDGMENT OF THE COURT OF CLAIMS BY
DISMISSING THE SUIT. 

AS THE OPINION IN THE KLEIN CASE POINTED OUT, PP. 144, 145, THE ACT
OF MARCH 17, 1866, 14 STAT. 9, CONFERRED ON THE COURT OF CLAIMS
JUDICIAL POWER BY GIVING IT AUTHORITY TO RENDER FINAL JUDGMENTS IN
THOSE CASES AND CONTROVERSIES WHICH, PURSUANT TO EXISTING STATUTES, HAD
BEEN PREVIOUSLY LITIGATED BEFORE IT.  BY LATER STATUTES THIS AUTHORITY
WAS EXTENDED TO FUTURE CASES, AND THE COURT HAS SINCE EXERCISED THE
JUDICIAL POWER THUS CONFERRED UPON IT.  SEE EX PARTE BAKELITE CORP.,
279 U.S. 438, 454; UNITED STATES V. JONES, 119 U.S. 477.  WE DO NOT
CONSIDER JUST WHAT APPLICATION THE PRINCIPLES ANNOUNCED IN THE KLEIN
CASE COULD RIGHTLY BE GIVEN TO A CASE IN WHICH CONGRESS SOUGHT,
PENDENTE LITE, TO SET ASIDE A JUDGMENT OF THE COURT OF CLAIMS IN FAVOR
OF THE GOVERNMENT AND TO REQUIRE RELITIGATION OF THE SUIT.  FOR WE DO
NOT CONSTRUE THE SPECIAL ACT AS REQUIRING THE COURT OF CLAIMS TO SET
ASIDE THE JUDGMENT IN A CASE ALREADY DECIDED OR AS CHANGING THE RULES
OF DECISION FOR THE DETERMINATION OF A PENDING CASE. 

BEFORE THE SPECIAL ACT THE CLAIMS OF PETITIONER ON HIS CONTRACT WITH
THE GOVERNMENT HAD BEEN PASSED UPON JUDICIALLY AND MERGED IN A JUDGMENT
WHICH WAS FINAL.  UNITED STATES V. JONES, SUPRA; IN RE SANBORN, 148
U.S. 222, 225; LUCKENBACH S.S. CO. V. UNITED STATES, 272 U.S. 533, 536
ET SEQ. THIS COURT DENIED CERTIORARI, AND THE JUDGMENT, WHICH REMAINS
UNDISTURBED BY ANY SUBSEQUENT LEGISLATIVE OR JUDICIAL ACTION,
CONCLUSIVELY ESTABLISHED THAT PETITIONER WAS NOT ENTITLED TO RECOVER ON
HIS CLAIMS.  THE SPECIAL ACT DID NOT PURPORT TO SET ASIDE THE JUDGMENT
OR TO REQUIRE A NEW TRIAL OF THE ISSUES AS TO THE VALIDITY OF THE
CLAIMS WHICH THE COURT HAD RESOLVED AGAINST PETITIONER.  WHILE
INARTISTICALLY DRAWN THE ACT'S PURPOSE AND EFFECT SEEM RATHER TO HAVE
BEEN TO CREATE A NEW OBLIGATION OF THE GOVERNMENT TO PAY PETITIONER'S
CLAIMS WHERE NO OBLIGATION EXISTED BEFORE.  AND SUCH BEING ITS EFFECT,
THE ACT'S IMPACT UPON THE PERFORMANCE BY THE COURT OF CLAIMS OF ITS
JUDICIAL DUTIES SEEMS NOT TO BE ANY DIFFERENT THAN IT WOULD HAVE BEEN
IF PETITIONER'S CLAIMS HAD NOT BEEN PREVIOUSLY ADJUDICATED THERE. 

WE PERCEIVE NO CONSTITUTIONAL OBSTACLE TO CONGRESS' IMPOSING ON THE
GOVERNMENT A NEW OBLIGATION WHERE THERE HAD BEEN NONE BEFORE, FOR WORK
PERFORMED BY PETITIONER WHICH WAS BENEFICIAL TO THE GOVERNMENT AND FOR
WHICH CONGRESS THOUGHT HE HAD NOT BEEN ADEQUATELY COMPENSATED.  THE
POWER OF CONGRESS TO PROVIDE FOR THE PAYMENT OF DEBTS, CONFERRED BY
SEC. 8 OF ARTICLE I OF THE CONSTITUTION, IS NOT RESTRICTED TO PAYMENT
OF THOSE OBLIGATIONS WHICH ARE LEGALLY BINDING ON THE GOVERNMENT.  IT
EXTENDS TO THE CREATION OF SUCH OBLIGATIONS IN RECOGNITION OF CLAIMS
WHICH ARE MERELY MORAL OR HONORARY.  ROBERTS V. UNITED STATES, 92 U.S.
41; UNITED STATES V. REALTY CO., 163 U.S. 427; UNITED STATES V. COOK,
257 U.S. 523; CINCINNATI SOAP CO. V. UNITED STATES, 301 U.S. 308, 314. 
CONGRESS, BY THE CREATION OF A LEGAL, IN RECOGNITION OF A MORAL,
OBLIGATION TO PAY PETITIONER'S CLAIMS PLAINLY DID NOT ENCROACH UPON THE
JUDICIAL FUNCTION WHICH THE COURT OF CLAIMS HAD PREVIOUSLY EXERCISED IN
ADJUDICATING THAT THE OBLIGATION WAS NOT LEGAL.  FN2  NOR DO WE THINK
IT DID SO BY DIRECTING THAT COURT TO PASS UPON PETITIONER'S CLAIMS IN
CONFORMITY TO THE PARTICULAR RULE OF LIABILITY PRESCRIBED BY THE
SPECIAL ACT AND TO GIVE JUDGMENT ACCORDINGLY.  PENNSYLVANIA V. WHEELING
& BELMONT BRIDGE CO., 18 HOW.  421; ROBERTS V. UNITED STATES, SUPRA;
SEE CHEROKEE NATION V. UNITED STATES, 270 U.S. 476, 486; CF. KLAMATH
INDIANS V. UNITED STATES, 296 U.S. 244; UNITED STATES V. KLAMATH
INDIANS, 304 U.S. 119. 

CONGRESS HAVING EXERCISED ITS CONSTITUTIONAL AUTHORITY TO IMPOSE ON
THE GOVERNMENT A LEGALLY BINDING OBLIGATION, THE DECISIVE QUESTION IS
WHETHER IT INVADED THE JUDICIAL PROVINCE OF THE COURT OF CLAIMS BY
DIRECTING IT TO DETERMINE THE EXTENT OF THE OBLIGATION BY REFERENCE, AS
DIRECTED, TO THE SPECIFIED FACTS, AND TO GIVE JUDGMENT FOR THAT
AMOUNT.  IN ANSWERING, IT IS IMPORTANT THAT THE ACT CONTEMPLATED THAT
PETITIONER SHOULD BRING SUIT ON HIS CLAIMS IN THE USUAL MANNER, THAT
THE COURT WAS GIVEN JURISDICTION TO DECIDE IT, AND THAT PETITIONER BY
BRINGING THE SUIT HAS INVOKED, FOR ITS DECISION, WHATEVER JUDICIAL
POWER THE COURT POSSESSES.  CF. UNITED STATES V. REALTY CO., SUPRA.  IN
THIS POSTURE OF THE CASE IT IS PERTINENT TO INQUIRE WHAT, IF ANYTHING,
CONGRESS ADDED TO OR SUBTRACTED FROM THE JUDICIAL DUTIES OF THE COURT
OF CLAIMS BY DIRECTING THAT IT CONSIDER THE CASE AND GIVE JUDGMENT FOR
THE AMOUNT FOUND TO BE DUE.  STRIPPED OF ALL COMPLEXITIES OF DETAIL THE
CASE IS ONE IN WHICH, SIMPLY STATED, PETITIONER HAS SOUGHT TO ENFORCE
THE OBLIGATION, WHICH THE GOVERNMENT HAS ASSUMED, TO PAY HIM FOR WORK
DONE AND NOT PAID FOR.  CONGRESS HAS IN EFFECT CONSENTED TO JUDGMENT IN
AN AMOUNT TO BE ASCERTAINED BY REFERENCE TO THE SPECIFIED DATA.    WHEN
A PLAINTIFF BRINGS SUIT TO ENFORCE A LEGAL OBLIGATION IT IS NOT ANY THE
LESS A CASE OR CONTROVERSY UPON WHICH A COURT POSSESSING THE FEDERAL
JUDICIAL POWER MAY RIGHTLY GIVE JUDGMENT, BECAUSE THE PLAINTIFF'S CLAIM
IS UNCONTESTED OR INCONTESTABLE.  NOR IS IT ANY THE LESS SO BECAUSE THE
AMOUNT RECOVERABLE DEPENDS UPON A MATHEMATICAL COMPUTATION BASED UPON
DATA TO BE ASCERTAINED WHICH BY THE TERMS OF THE OBLIGATION ARE ITS
MEASURE.  FOR IN ANY CASE THE COURT IS CALLED ON TO SANCTION, BY ITS
JUDGMENT, AN ALLEGED OBLIGATION IN A PROCEEDING IN WHICH THE EXISTENCE,
VALIDITY AND EXTENT OF THE OBLIGATION, THE EXISTENCE OF THE DATA, AND
THE CORRECTNESS OF THE COMPUTATION MAY BE PUT IN ISSUE. 

THE COURT BELOW SEEMS TO HAVE ASSUMED THAT ITS ONLY FUNCTION UNDER
THE SPECIAL ACT WAS TO MAKE A CALCULATION BASED UPON DATA TO BE FOUND
IN THE ACT AND IN THE FINDINGS OF THE EARLIER SUIT.  IN VIEW OF THE
PROVISIONS OF THE SPECIAL ACT FOR TAKING EVIDENCE AND FOR CONSIDERING
THE EVIDENCE IN THE FIRST SUIT, WE CANNOT SAY THAT ALL THE EARLIER
FINDINGS ARE TO BE DEEMED CONCLUSIVE AND THAT THE COURT COULD NOT HAVE
BEEN CALLED ON IN THIS PROCEEDING TO DETERMINE JUDICIALLY WHETHER THEY
ARE SO.  WHETHER THE ACT MAKES THEM CONCLUSIVE, AND IF NOT, WHETHER THE
EVIDENCE WOULD ESTABLISH THE FACTS ON WHICH THE ACT PREDICATES
LIABILITY, ARE JUDICIAL QUESTIONS.  BUT IF THE FACTS BE ASCERTAINED BY
PROOF OR BY STIPULATION, IT IS STILL A PART OF THE JUDICIAL FUNCTION TO
DETERMINE WHETHER THERE IS A LEGALLY BINDING OBLIGATION AND, IF SO, TO
GIVE JUDGMENT FOR THE AMOUNT DUE EVEN THOUGH THE AMOUNT DEPENDS UPON
MERE COMPUTATION. 

IT IS A JUDICIAL FUNCTION AND AN EXERCISE OF THE JUDICIAL POWER TO
RENDER JUDGMENT ON CONSENT.  A JUDGMENT UPON CONSENT IS "A JUDICIAL
ACT."  UNITED STATES V. SWIFT & CO., 286 U.S. 106, 115; SWIFT & CO. V.
UNITED STATES, 276 U.S. 311, 324; SEE ALSO PACIFIC R. CO. V. KETCHUM,
101 U.S. 289; UNITED STATES V. BABBITT, 104 U.S. 767; NASHVILLE, C. &
ST. L.R. CO. V. UNITED STATES, 113 U.S. 261; THOMPSON V. MAXWELL LAND
GRANT & R. CO., 168 U.S. 451.  IT IS LIKEWISE A JUDICIAL ACT TO GIVE
JUDGMENT ON A LEGAL OBLIGATION WHICH THE COURT FINDS TO BE ESTABLISHED
BY STIPULATED FACTS; J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332, 333;
JOHNSON V. YELLOW CAB CO., 321 U.S. 383, 388; EQUITABLE SOCIETY V.
COMMISSIONER, 321 U.S. 560, 561; OR WHEN THE DEFENDANT IS IN DEFAULT. 
VOORHEES V. BANK OF THE UNITED STATES, 10 PET. 449; RANDOLPH V.
BARRETT, 16 PET. 138; CLEMENTS V. BERRY, 11 HOW.  398; COOPER V.
REYNOLDS, 10 WALL.  308; RIO GRANDE IRRIGATION CO. V. GILDERSLEEVE, 174
U.S. 603; FIDELITY & DEPOSIT CO. V. UNITED STATES, 187 U.S. 315;
CHRISTIANSON V. KING COUNTY, 239 U.S. 356, 372.  IT IS A FAMILIAR
PRACTICE AND AN EXERCISE OF JUDICIAL POWER FOR A COURT UPON DEFAULT, BY
TAKING EVIDENCE WHEN NECESSARY OR BY COMPUTATION FROM FACTS OF RECORD,
TO FIX THE AMOUNT WHICH THE PLAINTIFF IS LAWFULLY ENTITLED TO RECOVER
AND TO GIVE JUDGMENT ACCORDINGLY.  RENNER & BUSSARD V. MARSHALL, 1
WHEAT.  215; AURORA CITY V. WEST, 7 WALL.  82, 104; CLEMENTS V. BERRY,
SUPRA; CF. MAYHEW V. THATCHER, 6 WHEAT.  129.  IN ALL THESE CASES THE
COURT DETERMINES THAT THE UNCHALLENGED FACTS SHOWN OF RECORD ESTABLISH
A LEGALLY BINDING OBLIGATION; IT ADJUDICATES THE PLAINTIFF'S RIGHT OF
RECOVERY AND THE EXTENT OF IT, BOTH OF WHICH ARE ESSENTIAL ELEMENTS OF
THE JUDGMENT. 

WE CONCLUDE THAT THE EFFECT OF THE SPECIAL ACT WAS TO AUTHORIZE
PETITIONER TO INVOKE THE JUDICIAL POWER OF THE COURT OF CLAIMS, AND
THAT HE HAS DONE SO.  IT IS TRUE THAT CONGRESS HAS IMPOSED ON THAT
COURT, AS IT HAS ON THE COURTS OF THE DISTRICT OF COLUMBIA, NON
JUDICIAL DUTIES OF AN ADMINISTRATIVE OR LEGISLATIVE CHARACTER.  SEE IN
RE SANBORN, SUPRA; FEDERAL RADIO COMM'N V. NELSON BROS. CO., 289 U.S.
266, 275.  THOSE IMPOSED ON THE COURT OF CLAIMS ARE SUCH AS IT HAS
TRADITIONALLY EXERCISED EVER SINCE ITS ORIGINAL ORGANIZATION AS A MERE
AGENCY OF CONGRESS TO AID IT IN THE PERFORMANCE OF ITS CONSTITUTIONAL
DUTY TO PROVIDE FOR PAYMENT OF THE DEBTS OF THE GOVERNMENT.  SUCH
ADMINISTRATIVE DUTIES COEXIST WITH ITS JUDICIAL FUNCTIONS.  SEE EX
PARTE BAKELITE CORP., SUPRA, 452, ET SEQ. ITS DECISIONS RENDERED IN ITS
ADMINISTRATIVE CAPACITY ARE NOT JUDICIAL ACTS, AND THEIR REVIEW, EVEN
THOUGH SANCTIONED BY CONGRESS, IS NOT WITHIN THE APPELLATE JURISDICTION
OF THIS COURT.  GORDON V. UNITED STATES, 2 WALL.  561; AND SEE THE
VIEWS EXPRESSED BY TANEY, C.J., IN 117 U.S. 697; IN RE SANBORN, SUPRA.
BUT NOTWITHSTANDING THE RETENTION OF SUCH ADMINISTRATIVE DUTIES BY THE
COURT OF CLAIMS, AS IN THE CASE OF THE COURTS OF THE DISTRICT OF
COLUMBIA, CONGRESS HAS PROVIDED FOR APPELLATE REVIEW OF THE JUDGMENTS
OF BOTH COURTS RENDERED IN THEIR JUDICIAL CAPACITY.  AND THIS COURT HAS
HELD, BY AN UNBROKEN LINE OF DECISIONS, THAT ITS APPELLATE
JURISDICTION, CONFERRED BY ART. III, SEC. 2, CL. 2 OF THE CONSTITUTION,
EXTENDS TO THE REVIEW OF SUCH JUDGMENTS OF THE COURT OF CLAIMS; DE
GROOT V. UNITED STATES, 5 WALL.  419; UNITED STATES V. JONES, SUPRA;
NASHVILLE, C. & ST. L.R. CO. V. WALLACE, 288 U.S. 249, 263; AND OF THE
COURTS OF THE DISTRICT OF COLUMBIA; FEDERAL RADIO COMM'N V. NELSON
BROS. CO., SUPRA, AND CASES CITED. 

WE HAVE NO OCCASION TO CONSIDER WHAT EFFECT THE IMPOSITION OF NON
JUDICIAL DUTIES ON THE COURT OF CLAIMS MAY HAVE AFFECTING ITS
CONSTITUTIONAL STATUS AS A COURT AND THE PERMANENCY OF TENURE OF ITS
JUDGES.  CF. WILLIAMS V. UNITED STATES, 289 U.S. 553.  IT IS ENOUGH
THAT, ALTHOUGH THE COURT OF CLAIMS, LIKE THE COURTS OF THE DISTRICT OF
COLUMBIA, EXERCISES NON-JUDICIAL DUTIES, CONGRESS HAS ALSO AUTHORIZED
IT AS AN INFERIOR COURT TO PERFORM JUDICIAL FUNCTIONS WHOSE EXERCISE IS
REVIEWABLE HERE.  THE PROBLEM PRESENTED HERE IS NO DIFFERENT THAN IF
CONGRESS HAD GIVEN A LIKE DIRECTION TO ANY DISTRICT COURT TO BE
FOLLOWED AS IN OTHER TUCKER ACT CASES.  ITS POSSESSION OF NON-JUDICIAL
FUNCTIONS BY DIRECTION OF CONGRESS PRESENTS NO MORE OBSTACLE TO
APPELLATE REVIEW OF ITS JUDICIAL DETERMINATIONS BY THIS COURT, THAN
DOES THE PERFORMANCE OF LIKE FUNCTIONS BY THE COURTS OF THE DISTRICT OF
COLUMBIA OR BY STATE COURTS WHOSE EXERCISE OF JUDICIAL POWER, IN THE
CASES SPECIFIED IN ARTICLE III, SEC. 2, CL. 1, OF THE CONSTITUTION, IS
REVIEWABLE HERE BY VIRTUE OF CL. 2 OF SEC. 2.  COMPARE SOUTHWESTERN
BELL TEL. CO. V. OKLAHOMA, 303 U.S. 206 WITH BARNETT V. ROGERS, 302
U.S. 655.  SEE ALSO PRENTIS V. ATLANTIC COAST LINE, 211 U.S. 210, 225,
226; OKLAHOMA NATURAL GAS CO. V. RUSSELL, 261 U.S. 290. 

THE COURT OF CLAIMS' DETERMINATION THAT THE SPECIAL ACT CONFERRED
UPON IT ONLY NON-JUDICIAL FUNCTIONS AND HENCE THAT IT HAD NO JUDICIAL
DUTY TO PERFORM WAS ITSELF AN EXERCISE OF JUDICIAL POWER REVIEWABLE
HERE.  INTERSTATE COMMERCE COMMISSION V. BRIMSON, 154 U.S. 447.  THE
CASE IS NOT ONE WHERE THE COURT BELOW HAS MADE MERELY AN ADMINISTRATIVE
DECISION NOT SUBJECT TO JUDICIAL REVIEW, WITHOUT PURPORTING TO ACT
JUDICIALLY OR TO RULE AS TO THE EXTENT OF ITS JUDICIAL AUTHORITY AS THE
GROUND OF ITS ACTION OR REFUSAL TO ACT.  POSTUM CEREAL CO. V.
CALIFORNIA FIG NUT CO., 272 U.S. 693.  JURISDICTION TO DECIDE IS
JURISDICTION TO MAKE A WRONG AS WELL AS A RIGHT DECISION.  FAUNTLEROY
V. LUM, 210 U.S. 230, 234, 235; BURNET V. DESMORNES, 226 U.S. 145,
147.  REVERSED. 

FN1  "BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT JURISDICTION BE,
AND THE SAME IS HEREBY, CONFERRED UPON THE COURT OF CLAIMS OF THE
UNITED STATES, NOTWITHSTANDING ANY PRIOR DETERMINATION, ANY STATUTE OF
LIMITATIONS, RELEASE, OR PRIOR ACCEPTANCE OF PARTIAL ALLOWANCE, TO
HEAR, DETERMINE, AND RENDER JUDGMENT UPON THE CLAIMS OF ALLEN POPE, HIS
HEIRS OR PERSONAL REPRESENTATIVES, AGAINST THE UNITED STATES, AS
DESCRIBED AND IN THE MANNER SET OUT IN SECTION 2 HEREOF, WHICH CLAIMS
ARISE OUT OF THE CONSTRUCTION BY HIM OF A TUNNEL FOR THE SECOND HIGH
SERVICE OF THE WATER SUPPLY IN THE DISTRICT OF COLUMBIA. 

"SEC. 2.  THE COURT OF CLAIMS IS HEREBY DIRECTED TO DETERMINE AND
RENDER JUDGMENT AT CONTRACT RATES UPON THE CLAIMS OF THE SAID ALLEN
POPE, HIS HEIRS OR PERSONAL REPRESENTATIVES, FOR CERTAIN WORK PERFORMED
FOR WHICH HE HAS NOT BEEN PAID, BUT OF WHICH THE GOVERNMENT HAS
RECEIVED THE USE AND BENEFIT; NAMELY, FOR THE EXCAVATION AND CONCRETE
WORK FOUND BY THE COURT TO HAVE BEEN PERFORMED BY THE SAID POPE IN
COMPLYING WITH CERTAIN ORDERS OF THE CONTRACTING OFFICER, WHEREBY THE
PLANS FOR THE WORK WERE SO CHANGED AS TO LOWER THE UPPER 'B' OR 'PAY'
LINE THREE INCHES, AND AS TO OMIT THE TIMBER LAGGING FROM THE SIDE
WALLS OF THE TUNNEL; AND FOR THE WORK OF EXCAVATING MATERIALS WHICH
CAVED IN OVER THE TUNNEL ARCH AND FOR FILLING SUCH CAVED-IN SPACES WITH
DRY PACKING AND GROUT, AS DIRECTED BY THE CONTRACTING OFFICER, THE
AMOUNT OF DRY PACKING TO BE DETERMINED BY THE LIQUID METHOD AS
DESCRIBED BY THE COURT AND BASED ON THE VOLUME OF GROUT ACTUALLY USED,
AND THE AMOUNT OF GROUT TO BE AS DETERMINED BY THE COURT'S PREVIOUS
FINDINGS BASED ON THE NUMBER OF BAGS OF CEMENT USED IN THE GROUT
ACTUALLY PUMPED INTO THE DRY PACKING. 

"SEC. 3.  ANY SUIT BROUGHT UNDER THE PROVISIONS OF THIS ACT SHALL BE
INSTITUTED WITHIN ONE YEAR FROM THE DATE OF THE APPROVAL HEREOF, AND
THE COURT SHALL CONSIDER AS EVIDENCE IN SUCH SUIT ANY OR ALL EVIDENCE
HERETOFORE TAKEN BY EITHER PARTY IN THE CASE OF ALLEN POPE AGAINST THE
UNITED STATES, NUMBERED K-366, IN THE COURT OF CLAIMS, TOGETHER WITH
ANY ADDITIONAL EVIDENCE WHICH MAY BE TAKEN. 

"SEC. 4.  FROM ANY DECISION OR JUDGMENT RENDERED IN ANY SUIT
PRESENTED UNDER THE AUTHORITY OF THIS ACT, A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE UNITED STATES MAY BE APPLIED FOR BY EITHER PARTY
THERETO, AS IS PROVIDED BY LAW IN OTHER CASES." 

FN2  THE COURT OF CLAIMS HAS OFTEN SO HELD IN EARLIER CASES.  SEE
E.G. NOCK V. UNITED STATES, 1 CT. CLS. 71, 2 CT. CLS. 451; MURPHY V.
UNITED STATES, 14 CT. CLS. 508, 15 CT. CLS. 217, AFFIRMED 104 U.S. 464,
35 CT. CLS. 494; ALCOCK & CO. V. UNITED STATES, 61 CT. CLS. 312, 74 CT.
CLS. 308; DELUCA V. UNITED STATES, 69 CT. CLS. 262, CERT. DENIED 283
U.S. 862, 84 CT. CLS. 217.  AND SEE MENOMINEE INDIANS V. UNITED STATES,
101 CT. CLS. 10. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















BATES V. UNITED STATES, 323, U.S. 15 


NO. 92.  DECIDED NOVEMBER 6, 1944.  - 141 F.2D 436, VACATED. 


THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS AFFIRMING A CONVICTION OF
THE OFFENSE OF CONSPIRACY TO EXPORT GOLD IN VIOLATION OF EXECUTIVE
ORDER NO. 6260(31 C.F.R. 50.6), AND OTHER OFFENSES, ON GROUNDS CONCEDED
TO BE ERRONEOUS BY THE GOVERNMENT, IS VACATED.  THE GOVERNMENT'S
CONTENTION THAT THE CONVICTION CAN BE SUSTAINED ON OTHER GROUNDS IS NOT
PASSED UPON, AND THE CAUSE IS REMANDED TO THE CIRCUIT COURT OF APPEALS,
SINCE IT IS MORE APPROPRIATE THAT THE CONTENTION BE CONSIDERED IN THE
FIRST INSTANCE BY THAT COURT.  P. 16. 

BATES V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

PETITION FOR A WRIT OF CERTIORARI, HEREIN GRANTED, TO REVIEW THE
AFFIRMANCE OF A CONVICTION OF CONSPIRACY TO COMMIT FEDERAL OFFENSES. 

PER CURIAM. 

PETITIONER ASKS CERTIORARI TO REVIEW HIS CONVICTION UPON AN
INDICTMENT CHARGING CRIMINAL CONSPIRACY TO COMMIT SEVERAL SEPARATE
OFFENSES.  THE INDICTMENT CHARGED PETITIONER, ONE SMITH, AND ANOTHER
(WHO WAS ACQUITTED BY THE JURY), AND PERSONS UNKNOWN, WITH A CONSPIRACY
TO ACQUIRE GOLD BULLION WITHOUT A LICENSE IN VIOLATION OF SEC. 4 OF
EXECUTIVE ORDER 6260(31 C.F.R. SEC. 50.4); TO EARMARK FOR EXPORT, AND
TO EXPORT TO GERMANY GOLD BULLION WITHOUT A LICENSE, BOTH IN VIOLATION
OF SEC. 6 OF THE ORDER (31 C.F.R. SEC. 50.6); AND WITH CONSPIRACY TO
COMMIT TWO COUNTERFEITING OFFENSES. 

AT THE TRIAL THE EVIDENCE SHOWED THAT PETITIONER, WHO WAS INTERESTED
IN MAKING A PROFIT FROM THE SALE OF GOLD, WAS INTRODUCED BY AN INFORMER
TO ONE SCHAETZEL, A GOVERNMENT AGENT WHO POSED AS THE OWNER OF A GOLD
MINE, INTERESTED IN DISPOSING OF GOLD.  PETITIONER TOLD SCHAETZEL A
STORY, CONCEDED BY THE GOVERNMENT TO BE WITHOUT FOUNDATION, TO THE
EFFECT THAT PETITIONER WISHED TO PROCURE GOLD FOR SALE TO NAZI AGENTS
IN THIS COUNTRY WHO PROPOSED TO TRANSPORT IT TO GERMANY BY SUBMARINE. 
PETITIONER, WHO WAS IN FACT SEEKING OTHER WAYS OF DISPOSING OF GOLD,
TRIED WITHOUT SUCCESS TO NEGOTIATE WITH NUMEROUS DEALERS, SOME OF WHOSE
NAMES WERE SUGGESTED TO PETITIONER BY SMITH ON PETITIONER'S PROMISE TO
PAY HIM A COMMISSION.  WHEN SCHAETZEL COMPLAINED TO PETITIONER OF THE
DELAY IN CONSUMMATING THE PROPOSED ARRANGEMENT WITH THE SUPPOSED NAZI
AGENTS, PETITIONER INDUCED SMITH TO POSE AS SUCH TO REASSURE
SCHAETZEL. 

ON THE VERDICT OF THE JURY, FINDING PETITIONER AND SMITH GUILTY AS
CHARGED BY THE INDICTMENT, THE DISTRICT COURT GAVE JUDGMENT AGAINST
THEM.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED THE
CONVICTION OF SMITH BUT AFFIRMED THAT OF PETITIONER, 141 F.2D 436, ON
THE GROUND THAT THE JURY COULD HAVE FOUND THAT PETITIONER HAD CONSPIRED
WITH UNKNOWN NAZI AGENTS TO EXPORT GOLD. 

THE GOVERNMENT, BY ITS BRIEF HERE, FORMALLY CONCEDES THAT
PETITIONER'S CONVICTION CANNOT BE SUSTAINED ON THIS GROUND.  IT ADMITS
THAT PETITIONER'S STORY OF HIS NEGOTIATIONS WITH NAZI AGENTS WAS SHAM,
AS HE TESTIFIED AT THE TRIAL, AND AS IS SHOWN BY OTHER EVIDENCE
SUBMITTED TO THE JURY AND BY THE FAILURE OF THE GOVERNMENT TO PRODUCE
EVIDENCE OF CONTACTS WITH NAZI AGENTS ALTHOUGH PETITIONER WAS UNDER
ALMOST CONSTANT SURVEILLANCE BY GOVERNMENT AGENTS.  THE GOVERNMENT ALSO
CONCEDES THAT IT HAS NO EVIDENCE AND THAT THERE IS NONE IN THE RECORD
TO SUPPORT PETITIONER'S CONVICTION ON ANY THEORY OF A CONSPIRACY TO
EXPORT GOLD.  IT IN EFFECT CONFESSES THAT THE AFFIRMANCE ON THAT GROUND
IS ERROR.  THE GOVERNMENT ALSO ADMITS THAT THE CONVICTION CANNOT BE
SUPPORTED ON THE COUNTERFEITING CHARGES. 

BUT THE GOVERNMENT ARGUES THAT THERE IS EVIDENCE IN THE RECORD
SUFFICIENT TO SUSTAIN THE CONVICTION OF PETITIONER AND SMITH OF
CONSPIRACY TO ACQUIRE GOLD WITHOUT THE PRESCRIBED LICENSE,
NOTWITHSTANDING THE GOVERNMENT'S FAILURE TO SEEK A REVIEW OF THE
REVERSAL OF SMITH'S CONVICTION.  THE DISTRICT COURT'S INSTRUCTIONS TO
THE JURY ARE NOT INCLUDED IN THE RECORD ON APPEAL.  IN THIS STATE OF
THE RECORD THERE CAN BE NO QUESTION THAT THIS CHARGE OF THE INDICTMENT
WAS NOT PROPERLY SUBMITTED TO THE JURY. 

ON THE GOVERNMENT'S CONCESSION, WHICH WE ACCEPT, AS TO THE CHARGE OF
CONSPIRACY TO EXPORT GOLD AND TO COMMIT COUNTERFEITING OFFENSES, THE
JUDGMENT OF THE COURT OF APPEALS CANNOT BE SUSTAINED.  WE DO NOT
CONSIDER THE MERITS OF THE GOVERNMENT'S CONTENTION THAT THE CONVICTION
CAN BE SUSTAINED ON OTHER GROUNDS, SINCE, IN THE CIRCUMSTANCES OF THIS
CASE, WE DEEM IT MORE APPROPRIATE THAT THE COURT OF APPEALS CONSIDER
THAT QUESTION IN THE FIRST INSTANCE.  CF. MANUFACTURERS' FINANCE CO. V.
MCKEY, 294 U.S. 442, 453-454, AND CASES CITED; UNITED STATES V.
MALPHURS, 316 U.S. 1, 3. 

THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE JUDGMENT IS
VACATED AND THE CAUSE REMANDED TO THE CIRCUIT COURT OF APPEALS FOR
FURTHER PROCEEDINGS IN CONFORMITY TO THIS OPINION.  SO ORDERED. 
..END :






CAROLENE PRODUCTS CO. V. U.S., 323 U.S. 18 


NO. 21.  ARGUED OCTOBER 16, 17, 1944.  - DECIDED NOVEMBER 6, 1944.  -
140 F.2D 61, AFFIRMED. 


THE FILLED MILK ACT FORBIDS SHIPMENT IN INTERSTATE COMMERCE OF MILK
"TO WHICH HAS BEEN ADDED, OR WHICH HAS BEEN BLENDED OR COMPOUNDED WITH,
ANY FAT OR OIL OTHER THAN MILK FAT, SO THAT THE RESULTING PRODUCT IS IN
IMITATION OR SEMBLANCE OF MILK."  HELD: 

1.  IN A PROSECUTION FOR VIOLATION OF THE ACT, EVIDENCE THAT THE
DEFENDANT'S COMPOUND WAS NOT NUTRITIONALLY DEFICIENT WAS PROPERLY
EXCLUDED.  P. 22. 

(A)  THE ACT IS NOT TO BE CONSTRUED AS INAPPLICABLE TO PRODUCTS IN
WHICH NUTRITIONAL DEFICIENCY HAS BEEN CORRECTED, ALTHOUGH BY METHODS
DEVELOPED SUBSEQUENTLY TO THE PASSAGE OF THE ACT, SINCE THE ACT WAS
AIMED NOT ONLY AT NUTRITIONAL DEFICIENCY BUT ALSO AT SUBSTITUTION FOR
OR CONFUSION WITH MILK PRODUCTS.  P. 22. 

(B)  THUS TO CONTROL SHIPMENTS IN INTERSTATE COMMERCE SO AS TO
PREVENT CONFUSION, DECEPTION AND SUBSTITUTION IS WITHIN THE POWER OF
CONGRESS UNDER THE COMMERCE CLAUSE.  P. 23. 

2.  THOUGH THE ACT APPLIES ONLY TO PRODUCTS "IN IMITATION OR
SEMBLANCE OF MILK," SUCH IMITATION OR SEMBLANCE MAY RESULT FROM THE
INGREDIENTS USED AND NEED NOT BE THE RESULT OF CONSCIOUS EFFORT.  P.
25. 

3.  AS APPLIED TO THE FILLED MILK INVOLVED HERE, THOUGH THE PRODUCT
BE ASSUMED TO BE WHOLESOME AND PROPERLY LABELED, THE ACT DOES NOT
VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  P. 31. 

(A)  JUDICIAL NOTICE MAY BE TAKEN OF REPORTS OF COMMITTEES OF THE
HOUSE OF REPRESENTATIVES AND THE SENATE, WHICH SHOW THAT CONSIDERATIONS
BESIDES NUTRITIONAL DEFICIENCY INFLUENCED PASSAGE OF THE ACT.  P. 28. 

(B)  HERE, MILK FROM WHICH A VALUABLE ELEMENT (BUTTERFAT) HAS BEEN
REMOVED IS ARTIFICIALLY ENRICHED WITH CHEAPER FATS AND VITAMINS SO THAT
IT IS INDISTINGUISHABLE BY THE AVERAGE PURCHASER FROM WHOLE MILK
PRODUCTS.  THE RESULT IS THAT THE COMPOUND IS CONFUSED WITH AND PASSED
OFF AS THE WHOLE MILK PRODUCT DESPITE PROPER LABELING.  P. 31. 

(C)  WHEN CONGRESS EXERCISES A DELEGATED POWER SUCH AS THAT OVER
INTERSTATE COMMERCE, THE METHODS WHICH IT EMPLOYS MAY BE STRICKEN DOWN
ONLY UPON A CLEAR AND CONVINCING SHOWING THAT THERE IS NO RATIONAL
BASIS FOR THE LEGISLATION.  P. 31. 

CAROLENE PRODUCTS CO. ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 321 U.S. 760, TO REVIEW THE AFFIRMANCE OF CONVICTIONS OF
VIOLATION OF THE FILLED MILK ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE LIMITED WRIT OF CERTIORARI IN THIS CASE WAS GRANTED TO REVIEW
PETITIONERS' CONVICTION, AFFIRMED BY THE CIRCUIT COURT OF APPEALS, FOR
A VIOLATION OF THE FILLED MILK ACT.  FN1  THE COURT WAS MOVED TO ALLOW
THE PETITION IN ORDER TO EXAMINE THE CONTENTIONS THAT THE ACCUSED
ARTICLES OF FOOD CANNOT, UNDER THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT TO THE CONSTITUTION, BE BANNED FROM COMMERCE WHEN THESE
COMPOUNDS ARE NUTRITIONALLY SUFFICIENT AND NOT "IN IMITATION OR
SEMBLANCE" OF MILK OR ANY MILK PRODUCT WITHIN THE MEANING OF THE
STATUTE AND ARE NOT SOLD AS MILK OR A MILK PRODUCT. 

THE CONTENTIONS WHICH ARE RAISED BY PETITIONERS TO AVOID THEIR
CONVICTION WERE NOT DEALT WITH IN OUR PRIOR DECISION WHICH UPHELD THE
ACT'S VALIDITY UPON DEMURRER TO AN EARLIER INDICTMENT WHICH CHARGED ITS
VIOLATION.  UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144.  FN2
SINCE THESE ISSUES ARE IMPORTANT TO THOSE AFFECTED BY THE ACT,
CERTIORARI WAS GRANTED.  321 U.S. 760.  QUESTIONS OF DUE PROCESS UNDER
THE FOURTEENTH AMENDMENT, SIMILAR TO THOSE PRESENTED HERE, HAD ARISEN
FROM STATE FILLED-MILK LEGISLATION WITH VARYING RESULTS.  FN3
CONSIDERATION BY THIS COURT OF THE FILLED-MILK LEGISLATION OF KANSAS
APPEARS IN SAGE STORES CO. V. KANSAS, POST, P. 32. 

THE FACTS, WHICH ARE UNDISPUTED, ARE FULLY SET OUT IN THE OPINIONS OF
THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS.  IT IS SUFFICIENT
FOR OUR PURPOSES TO SUMMARIZE THEM AS FOLLOWS.  THE CORPORATE
PETITIONER SELLS THE PRODUCTS MENTIONED IN THE INDICTMENT WHICH ARE
MANUFACTURED FOR IT BY ANOTHER CORPORATION FROM SKIM MILK, THAT IS,
MILK FROM WHICH A LARGE PERCENTAGE OF THE BUTTERFAT HAS BEEN REMOVED. 
THE PROCESS OF MANUFACTURE CONSISTS OF TAKING NATURAL WHOLE MILK,
EXTRACTING THE BUTTERFAT CONTENT AND THEN ADDING COTTONSEED OR COCOANUT
OIL AND FISH LIVER OIL, WHICH LATTER OIL CONTAINS VITAMINS A AND D. THE
PROCESS INCLUDES PASTEURIZATION OF THE MILK, EVAPORATION,
HOMOGENIZATION OF THE MIXTURE AND STERILIZATION.  THE COMPOUND IS SOLD
UNDER VARIOUS TRADE NAMES IN CANS OF THE SAME SIZE AND SHAPE AS THOSE
USED FOR EVAPORATED MILK.  THE CONTENTS OF THE CAN ARE PRACTICALLY
INDISTINGUISHABLE BY THE BUYING PUBLIC FROM EVAPORATED WHOLE MILK, BUT
THE CANS ARE TRUTHFULLY LABELED TO SHOW THE TRADE NAMES AND THE
INGREDIENTS. 

THE INDICTMENT CHARGED THE PETITIONER CORPORATION AND THE INDIVIDUAL
PETITIONERS, ITS PRESIDENT AND VICE PRESIDENT, WITH VIOLATION OF THE
STATUTE BY MAKING INTERSTATE SHIPMENTS OF THE COMPOUNDS CONTRARY TO
SEC. 2.  FN4  THE CONVICTIONS AND SENTENCES ARE ASSAILED AS IMPROPER ON
THREE GROUNDS: FIRST, THAT THE PETITIONER'S COMPOUNDS WERE NOT COVERED
BY THE RATIONALE OF THE FILLED MILK ACT; SECOND, THAT THE ACT DID NOT
COVER THE COMPOUNDS BECAUSE THEY WERE NOT "IN IMITATION OR SEMBLANCE"
OF A MILK PRODUCT; AND THIRD, THAT SINCE THE COMPOUNDS WERE WHOLESOME
FOOD PRODUCTS AND SOLD WITHOUT FRAUD, IN ANY SENSE, CONGRESS COULD NOT
CONSTITUTIONALLY PROHIBIT THEIR INTERSTATE SHIPMENT. 

FIRST.  AS A BASIS FOR PETITIONER'S POSITION THAT THE FILLED MILK ACT
DOES NOT COVER THEIR COMPOUNDS, IT IS ARGUED THAT THE NUTRITIONAL
DEFICIENCIES OF FILLED MILKS LED TO THE ACT'S ENACTMENT SO AS TO
PROTECT THE PUBLIC HEALTH.  THESE DEFICIENCIES OCCURRED BECAUSE THE
EXTRACTION OF THE BUTTERFAT FROM THE WHOLE MILK REMOVED A LARGE
PROPORTION OF THE FAT SOLUBLE VITAMINS A AND D.  THE HEARINGS ON THE
BILL AND THE COURSE OF THE DEBATE MAKE IT QUITE CLEAR THAT THIS VITAMIN
DEFICIENCY WAS OF MAJOR IMPORTANCE IN BRINGING ABOUT THE ENACTMENT OF
THE ACT.  FN5  PETITIONERS THEN OFFERED IN THE TRIAL COURT TO PROVE
THAT SINCE THE PASSAGE OF THE FILLED MILK ACT IN 1923, THE TECHNIQUE OF
FORTIFICATION OF FOODS WITH VITAMINS A AND D HAD ADVANCED TO A POINT
WHERE THESE VITAMINS COULD BE RESTORED TO SKIM MILK COMPOUNDS SO THAT
THE COMPOUNDS WERE EQUALLY VALUABLE IN THAT RESPECT TO WHOLE MILK
PRODUCTS AND THAT THEIR PRODUCTS HAD BEEN SO ENRICHED.  THE OFFER WAS
REFUSED. 

FILLED MILK IS DEFINED IN SEC. 1(C) OF THE ACT AS ANY MILK, "WHETHER
OR NOT CONDENSED, EVAPORATED, CONCENTRATED, POWDERED, DRIED, OR
DESICCATED, TO WHICH HAS BEEN ADDED, OR WHICH HAS BEEN BLENDED OR
COMPOUNDED WITH, ANY FAT OR OIL OTHER THAN MILK FAT, SO THAT THE
RESULTING PRODUCT IS IN IMITATION OR SEMBLANCE OF MILK  ..., WHETHER OR
NOT CONDENSED, EVAPORATED, CONCENTRATED, POWDERED, DRIED, OR
DESICCATED."  THE PETITIONER'S COMPOUNDS, IT IS AGREED, FALL WITHIN
THIS DEFINITION.  BUT, PETITIONERS CONTEND, THEY DO NOT FALL WITHIN ITS
SPIRIT, SINCE THE VITAMINS WHICH CAUSE DEFICIENCY HAVE BEEN RESTORED
AND THAT THEREFORE THE ACT IS INAPPLICABLE TO THE ENRICHED COMPOUNDS
WITHIN THAT RULE OF STATUTORY CONSTRUCTION, AS ILLUSTRATED BY CHURCH OF
THE HOLY TRINITY V. UNITED STATES, 143 U.S. 457; UNITED STATES V. AETNA
EXPLOSIVES CO., 256 U.S. 402, AND OTHER CASES, WHICH EXCLUDES FROM THE
COVERAGE OF A STATUTE THINGS OR SITUATIONS WHICH ARE BEYOND THE
LEGISLATIVE INTENT. 

PETITIONERS' POSITION AS TO THE LEGISLATIVE PURPOSE OF THE ACT WAS
NOT ACCEPTED BY THE TRIAL OR REVIEWING COURT.  WE AGREE WITH THOSE
COURTS.  WHILE, AS WE HAVE STATED ABOVE, THE VITAMIN DEFICIENCY WAS AN
EFFICIENT CAUSE IN BRINGING ABOUT THE ENACTMENT OF THE FILLED MILK ACT,
IT WAS NOT THE SOLE REASON FOR ITS PASSAGE.  A SECOND REASON WAS THAT
THE COMPOUNDS LEND THEMSELVES READILY TO SUBSTITUTION FOR OR CONFUSION
WITH MILK PRODUCTS.  ALTHOUGH, SO FAR AS THE RECORD SHOWS, FILLED MILK
COMPOUNDS AS ENRICHED ARE EQUALLY WHOLESOME AND NUTRITIOUS AS MILK WITH
THE SAME CONTENT OF CALORIES AND VITAMINS, THEY ARE ARTIFICIAL OR
MANUFACTURED FOODS WHICH ARE CHEAPER TO PRODUCE THAN SIMILAR WHOLE MILK
PRODUCTS.  WHEN COMPOUNDED AND CANNED, WHETHER ENRICHED OR NOT, THEY
ARE INDISTINGUISHABLE BY THE ORDINARY CONSUMER FROM PROCESSED NATURAL
MILK.  THE PURCHASER OF THESE COMPOUNDS DOES NOT GET EVAPORATED MILK. 
THIS SITUATION HAS NOT CHANGED SINCE THE ENACTMENT OF THE ACT.  THE
POSSIBILITY AND ACTUALITY OF CONFUSION, DECEPTION AND SUBSTITUTION WAS
APPRAISED BY CONGRESS.  FN6 THE PREVENTION OF SUCH PRACTICES OR DANGERS
THROUGH CONTROL OF SHIPMENTS IN INTERSTATE COMMERCE IS WITHIN THE POWER
OF CONGRESS.  UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. AT P.
148; CF. MCCRAY V. UNITED STATES, 195 U.S. 27, 63.  THE MANNER BY WHICH
CONGRESS CARRIES OUT THIS POWER, SUBJECT TO CONSTITUTIONAL OBJECTIONS
WHICH ARE CONSIDERED HEREINAFTER IN PART "THIRD" OF THIS OPINION, IS
WITHIN LEGISLATIVE DISCRETION,  FN7  EVEN THOUGH THE METHOD CHOSEN IS
PROHIBITION OF MANUFACTURE, SALE OR SHIPMENT.  FN8  CONGRESS EVIDENTLY
DETERMINED THAT EXCLUSION FROM COMMERCE OF FILLED MILK COMPOUNDS IN THE
SEMBLANCE OF MILK WAS AN APPROPRIATE METHOD TO STRIKE AT EVILS WHICH IT
DESIRED TO SUPPRESS.  ALTHOUGH IT NOW IS MADE TO APPEAR THAT ONE EVIL,
THE NUTRITIONAL DEFICIENCIES, HAS BEEN OVERCOME, THE EVIL OF CONFUSION
REMAINS AND CONGRESS HAS LEFT THE STATUTE IN EFFECT.  IT SEEMS TO US
CLEAR, THEREFORE, THAT THERE IS NO JUSTIFICATION FOR JUDICIAL
INTERFERENCE TO WITHDRAW THESE ASSUMEDLY NONDELETERIOUS COMPOUNDS FROM
THE PROHIBITIONS OF THE ACT.  IT FOLLOWS FROM THE POINT OF VIEW OF THE
COVERAGE OF THE ACT THAT IT WAS NOT ERRONEOUS TO REFUSE TO CONSIDER THE
EVIDENCE WHICH PETITIONERS OFFERED AS TO THE WHOLESOMENESS OF THE
COMPOUNDS. 

SECOND.  THE PETITIONERS URGE ANOTHER REASON WHY THE ACT DOES NOT
COVER THEIR COMPOUNDS.  THIS GROUND IS THAT THE COMPOUNDS ARE NOT "IN
IMITATION OR SEMBLANCE" OF MILK WITHIN THE MEANING OF THE ACT'S
DEFINITION OF FILLED MILK.  SEC. 1(C), SUPRA, P. 22.  COMPARE STATE V.
CAROLENE PRODUCTS CO., 346 MO. 1049, 1060-62, 144 S.W.2D 153.  WE AGREE
THAT THE PRODUCT MUST BE IN IMITATION OR SEMBLANCE OF MILK TO FALL
WITHIN THE PROHIBITION OF THE ACT. 

PETITIONERS RELY UPON THE ADMITTED FACT THAT NO INGREDIENT IS ADDED
TO THE SKIM MILK, OIL AND VITAMINS TO ALTER THE APPEARANCE OF THE
COMPOUND.  ACCEPTING THE EVIDENCE THAT THE COMPOUNDS ARE
INDISTINGUISHABLE FROM WHOLE MILK PRODUCTS BY PURCHASERS, IT IS URGED
THAT THEY CANNOT BE HELD TO BE IN "IMITATION OR SEMBLANCE" OF MILK
UNLESS THE MANUFACTURER PURPOSEFULLY ADDS SOMETHING TO MAKE THE MIXTURE
SIMULATE MILK.  IT IS SAID CONGRESS ADOPTED THIS LANGUAGE FROM SEC.
64(3) OF THE FARMS AND MARKETS LAW OF NEW YORK.  FN9  PRIOR TO THAT
TIME, THE COURT OF APPEALS OF NEW YORK, IN CONSTRUING THE WORDS
"IMITATION OR SEMBLANCE" AS THEY APPEARED IN ANOTHER SECTION OF THE NEW
YORK LAW DIRECTED AT THE REGULATION OF OLEOMARGARINE, HAD INTERPRETED
THEM AS DENOUNCING TRADE IN OLEOMARGARINE ONLY WHEN THE MANUFACTURER
CONSCIOUSLY AND PURPOSEFULLY ATTEMPTED TO CREATE AN IMITATION OR
SEMBLANCE OF MILK PRODUCTS.  PEOPLE V. GUITON, 210 N.Y. 1, 8, 9, 103
N.E. 773.  THE ADOPTION OF THESE WORDS AFTER THIS INTERPRETATION AND IN
THE FACE OF THE CONGRESSIONAL KNOWLEDGE OF THE NEW YORK DECISION AND OF
THE CONTROVERSY OVER THE EFFECT OF THE USE OF SUCH LANGUAGE,  FN10
PETITIONERS CONTEND, BRINGS INTO PLAY THE GENERAL RULE THAT ADOPTION OF
THE WORDING OF A STATUTE FROM ANOTHER LEGISLATIVE JURISDICTION CARRIES
WITH IT THE PREVIOUS JUDICIAL INTERPRETATIONS OF THE WORDING.  WILLIS
V. EASTERN TRUST & BANKING CO., 169 U.S. 295, 307; CF. JAMES V. APPEL,
192 U.S. 129, 135; JOINES V. PATTERSON, 274 U.S. 544, 549. 

THE CASES JUST CITED HAVE ESTABLISHED UNDER SUITABLE CONDITIONS THE
RULE FOR WHICH PETITIONERS CONTEND THAT THE INTERPRETATION GOES WITH
THE ACT.  IT IS A PRESUMPTION OF LEGISLATIVE INTENTION, HOWEVER, WHICH
VARIES IN STRENGTH WITH THE SIMILARITY OF THE LANGUAGE, THE ESTABLISHED
CHARACTER OF THE DECISIONS IN THE JURISDICTION FROM WHICH THE LANGUAGE
WAS ADOPTED AND THE PRESENCE OR LACK OF OTHER INDICIA OF INTENTION. 
COPPER QUEEN MINING CO. V. ARIZONA BOARD, 206 U.S. 474, 479; WHITNEY V.
FOX, 166 U.S. 637, 647. 

HERE WE CANNOT BE SURE THAT CONGRESS, DELIBERATELY OR OTHERWISE,
ADOPTED THE WORDING FROM THE NEW YORK STATUTE.  IN SEC. 2 OF THE
FEDERAL ACT OF AUGUST 2, 1886, 24 STAT. 209, TAXING AND REGULATING
OLEOMARGARINE, SOMEWHAT SIMILAR LANGUAGE OCCURS.  FN11  THAT MAY BE THE
SOURCE OF THE PHRASE.  FURTHERMORE THE GUITON CASE DID NOT INTERPRET
THE SECTION OF THE NEW YORK STATUTE UPON WHICH PETITIONERS CONTEND THE
FEDERAL ACT IS MODELED.  IN THE GUITON CASE, THE COURT OF APPEALS
EXPLAINED THE FORCE OF "IMITATION AND SEMBLANCE" AS USED IN THE
OLEOMARGARINE SECTION, SEC. 38, N.Y. LAWS 1909, CH. 9.  THAT COURT
RELIED UPON THE SPECIAL STATUTORY DEFINITION OF OLEOMARGARINE IN SEC.
30, ID., AS A REASON FOR ITS CONCLUSION THAT THE WORDS PROHIBITED ONLY
CONSCIOUS IMITATION, 210 N.Y. 7.  OLEOMARGARINE WAS THERE DEFINED AS AN
ARTICLE "IN THE SEMBLANCE OF BUTTER."  THE COURT THOUGHT THAT AS THE
SALE OF NATURAL OLEOMARGARINE, WHICH MIGHT HAVE THE "SEMBLANCE" OF
BUTTER WAS PERMITTED, IT WAS NOT INTENDED TO PROHIBIT PRODUCTS WHICH
LOOKED LIKE BUTTER UNLESS THE IMITATION CAME FROM CHOICE.  AS NO
CORRESPONDING DEFINITION OF FILLED MILK OCCURS, THERE COULD BE NO
CERTAINTY THAT THE SAME RESULT WOULD BE REACHED, IF NEW YORK HAD BEEN
CALLED UPON TO INTERPRET SECTION 64. 

FINALLY, AS DETERMINATIVE OF THE INTENTION OF CONGRESS TO INCLUDE
COMPOUNDS WHOSE RESEMBLANCE TO MILK PRODUCTS ARISES FROM THEIR
INGREDIENTS AND NOT FROM CONSCIOUS EFFORT, WE NOTE THE FACT THAT
COMPOUNDS OF THIS INNOCENT CHARACTER WERE SPECIFICALLY INCLUDED BY NAME
IN THE LIST OF COMPOUNDS WHICH THE CONGRESSIONAL REPORTS POINTED OUT AS
PRODUCTS WHICH WERE COVERED BY THE PROPOSED ACT.  FN12  PETITIONER'S
COMPOUNDS WERE THEMSELVES SO NAMED.  THE ADDITION OF VITAMINS DOES NOT
AFFECT THEIR PHYSICAL LIKENESS TO MILK PRODUCTS. 

THIRD.  IF THE FILLED MILK ACT IS APPLICABLE TO THE COMPOUNDS WHOSE
SHIPMENT WAS THE BASIS OF THE INDICTMENT IN THIS CASE, AS WE HAVE JUST
CONCLUDED, PETITIONERS ASSERT THAT THE ACT, AS THUS APPLIED, VIOLATES
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  THEIR ARGUMENT RUNS IN
THIS MANNER.  SINCE THESE ENRICHED COMPOUNDS ARE ADMITTEDLY WHOLESOME
AND SOLD UNDER TRADE NAMES WITH PROPER LABELS WITHOUT THE COMMISSION OF
ANY FRAUD BY PETITIONERS ON THE PUBLIC, CONGRESS CANNOT PROHIBIT THEIR
INTERSTATE SHIPMENT WITHOUT DENYING TO PETITIONERS A RIGHT PROTECTED BY
THE DUE PROCESS CLAUSE, THE RIGHT TO TRADE IN INNOCENT ARTICLES.  THEY
RELY UPON WEAVER V. PALMER BROS. CO., 270 U.S. 402, AND CONTINUE THEIR
PROTEST AGAINST THE REFUSAL OF THE TRIAL COURT TO RECEIVE THE EVIDENCE
AS TO THE WHOLESOMENESS OF THEIR PRODUCT. 

WE DO NOT NEED TO CONSIDER THE REFUSAL OF THE TRIAL COURT TO RECEIVE
EVIDENCE OF THE PURITY AND WHOLESOMENESS OF PETITIONER'S PRODUCTS. 
SUCH EVIDENCE COULD BE MATERIAL ONLY IF THE SOLE BASIS FOR
CONGRESSIONAL ACTION WAS IMPURITY AND UNWHOLESOMENESS.  FN13  UNDER THE
FIRST POINT OF THIS OPINION, WE HAVE DETERMINED THAT THE AVOIDANCE OF
CONFUSION FURNISHED A REASON FOR THE ENACTMENT OF THE FILLED MILK ACT. 
THE TRIAL COURT TOOK JUDICIAL NOTICE, AS DID THE DISTRICT COURT OF THE
DISTRICT OF COLUMBIA, UNITED STATES V. CAROLENE PRODUCTS CO., 51
F.SUPP.  675, 678-79, AND AS WE DO, OF THE REPORTS OF THE COMMITTEES OF
THE HOUSE OF REPRESENTATIVES AND THE SENATE WHICH SHOW THAT OTHER
CONSIDERATIONS THAN NUTRITIONAL DEFICIENCIES INFLUENCED THE PROHIBITION
OF THE SHIPMENT OF FILLED MILK IN INTERSTATE COMMERCE.  THESE
UNCHALLENGED REPORTS, AS WE INDICATED IN PART "FIRST" ABOVE, FURNISH AN
ADEQUATE BASIS, OTHER THAN UNWHOLESOMENESS, FOR THE ACTION OF
CONGRESS.  FN14  THE REPORTS SHOW THAT IT WAS DISPUTABLE AS TO WHETHER
WHOLESOME FILLED MILK SHOULD BE EXCLUDED FROM COMMERCE BECAUSE OF THE
DANGER OF ITS CONFUSION WITH THE CONDENSED OR EVAPORATED NATURAL
PRODUCT OR WHETHER REGULATION WOULD BE SUFFICIENT.  THE POWER WAS IN
CONGRESS TO DECIDE ITS OWN COURSE.  WE NEED LOOK NO FURTHER.  FN15 

WEAVER V. PALMER BROS. CO., SUPRA, IS NOT TO THE CONTRARY.  THIS
COURT THOUGHT THAT UNDER THE FACTS OF THAT RECORD THERE WAS NO
REASONABLE BASIS FOR THE LEGISLATIVE DETERMINATION THAT THE USE OF
SHODDY IN COMFORTABLES WAS DANGEROUS TO THE PUBLIC HEALTH OR THAT IT
OFFERED OPPORTUNITY FOR DECEPTION, PP. 412 AND 414.  THEREFORE THE
PROHIBITION OF ITS USE VIOLATED THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  STERILIZATION, INSPECTION AND LABELING WERE
DEEMED TO BE SUFFICIENT TO NEGATIVE THE POSSIBILITY OF SUCH EVILS.  IT
WAS POINTED OUT IN THE COURSE OF THE OPINION, P. 413, THAT WHERE THE
POSSIBILITY OF EVIL WAS NOT NEGATIVED, LEGISLATION PROHIBITING THE SALE
OF A WHOLESOME ARTICLE WOULD NOT BE INVALIDATED.  POWELL V.
PENNSYLVANIA, 127 U.S. 678.  IN DEALING WITH THE EVILS OF FILLED MILK,
CONGRESS REACHED THE CONCLUSION THAT LABELING WAS NOT AN ADEQUATE
REMEDY FOR DECEPTION.  ON THE POINT OF THE CONSTITUTIONALITY IN
RELATION TO DUE PROCESS OF THE PROHIBITION OF TRADE IN ARTICLES WHICH
ARE NOT IN THEMSELVES DANGEROUS BUT WHICH MAKE OTHER EVILS MORE
DIFFICULT TO CONTROL, SUCH AS CONFUSION IN THE FILLED MILK LEGISLATION,
THE POWELL CASE IS AUTHORITY FOR THE VALIDITY OF CONGRESSIONAL ACTION
IN THE FILLED MILK ACT.  IT INVOLVED A SALE OF AN ARTICLE ASSUMED TO BE
JUST AS GOOD AS BUTTER BUT WHICH WAS PROHIBITED BECAUSE OF ITS
INGREDIENTS.  IN THE POWELL CASE, THIS COURT SAID: 

"THE DEFENDANT THEN OFFERED TO PROVE BY PROF. HUGO BLANCK THAT HE SAW
MANUFACTURED THE ARTICLE SOLD TO THE PROSECUTING WITNESS; THAT IT WAS
MADE FROM PURE ANIMAL FATS; THAT THE PROCESS OF MANUFACTURE WAS CLEAN
AND WHOLESOME, THE ARTICLE CONTAINING THE SAME ELEMENTS AS DAIRY
BUTTER, ...  THAT THE OLEAGINOUS SUBSTANCES IN THE MANUFACTURED ARTICLE
WERE SUBSTANTIALLY IDENTICAL WITH THOSE PRODUCED FROM MILK OR CREAM;
AND THAT THE ARTICLE SOLD TO THE PROSECUTING WITNESS WAS A WHOLESOME
AND NUTRITIOUS ARTICLE OF FOOD, IN ALL RESPECTS AS WHOLESOME AS BUTTER
PRODUCED FROM PURE UNADULTERATED MILK OR CREAM FROM UNADULTERATED
MILK."  PP. 681-82. 

"IT WILL BE OBSERVED THAT THE OFFER IN THE COURT BELOW WAS TO SHOW BY
PROOF THAT THE PARTICULAR ARTICLES THE DEFENDANT SOLD, AND THOSE IN HIS
POSSESSION FOR SALE, IN VIOLATION OF THE STATUTE, WERE, IN FACT,
WHOLESOME OR NUTRITIOUS ARTICLES OF FOOD.  IT IS ENTIRELY CONSISTENT
WITH THAT OFFER THAT MANY, INDEED, THAT MOST KINDS OF OLEOMARGARINE
BUTTER IN THE MARKET CONTAIN INGREDIENTS THAT ARE OR MAY BECOME
INJURIOUS TO HEALTH.  THE COURT CANNOT SAY, FROM ANYTHING OF WHICH IT
MAY TAKE JUDICIAL COGNIZANCE, THAT SUCH IS NOT THE FACT.... 

"WHETHER THE MANUFACTURE OF OLEOMARGARINE, OR IMITATION BUTTER, OF
THE KIND DESCRIBED IN THE STATUTE, IS, OR MAY BE, CONDUCTED IN SUCH A
WAY, OR WITH SUCH SKILL AND SECRECY, AS TO BAFFLE ORDINARY INSPECTION,
OR WHETHER IT INVOLVES SUCH DANGER TO THE PUBLIC HEALTH AS TO REQUIRE,
FOR THE PROTECTION OF THE PEOPLE, THE ENTIRE SUPPRESSION OF THE
BUSINESS, RATHER THAN ITS REGULATION IN SUCH MANNER AS TO PERMIT THE
MANUFACTURE AND SALE OF ARTICLES OF THAT CLASS THAT DO NOT CONTAIN
NOXIOUS INGREDIENTS, ARE QUESTIONS OF FACT AND OF PUBLIC POLICY WHICH
BELONG TO THE LEGISLATIVE DEPARTMENT TO DETERMINE.  AND AS IT DOES NOT
APPEAR UPON THE FACE OF THE STATUTE, OR FROM ANY FACTS OF WHICH THE
COURT MUST TAKE JUDICIAL COGNIZANCE, THAT IT INFRINGES RIGHTS SECURED
BY THE FUNDAMENTAL LAW, THE LEGISLATIVE DETERMINATION OF THOSE
QUESTIONS IS CONCLUSIVE UPON THE COURTS."  PP. 684-85. 

IN HEBE CO. V. SHAW, 248 U.S. 297, THIS COURT IN 1919 UPHELD THE
VALIDITY OF AN OHIO STATUTE WHICH PROHIBITED THE SALE OF CONDENSED MILK
MADE OTHERWISE THAN FROM WHOLE MILK AGAINST AN ATTACK UNDER THE
FOURTEENTH AMENDMENT.  IT WAS ASSUMED THAT THE COMPOUND WAS WHOLESOME
AND IT WAS PROPERLY LABELED.  THE ACT WAS SUSTAINED, HOWEVER, AS A
PROPER EXERCISE OF LEGISLATIVE POWER TO PROTECT THE PUBLIC AGAINST
FRAUDULENT SUBSTITUTION, PP. 302-303.  PURITY EXTRACT CO. V. LYNCH, 226
U.S. 192, 204. 

IN THE ACTION OF CONGRESS ON FILLED MILK THERE IS NO PROHIBITION OF
THE SHIPMENT OF AN ARTICLE OF COMMERCE MERELY BECAUSE IT COMPETES WITH
ANOTHER SUCH ARTICLE WHICH IT RESEMBLES.  SUCH WOULD BE THE PROHIBITION
OF THE SHIPMENT OF COTTON OR SILK TEXTILES TO PROTECT RAYON OR NYLON OR
OF ANTHRACITE TO AID THE CONSUMPTION OF BITUMINOUS COAL OR OF
COTTONSEED OIL TO AID THE SOYBEAN INDUSTRY.  HERE A MILK PRODUCT,
SKIMMED MILK, FROM WHICH A VALUABLE ELEMENT - BUTTERFAT - HAS BEEN
REMOVED IS ARTIFICIALLY ENRICHED WITH CHEAPER FATS AND VITAMINS SO THAT
IT IS INDISTINGUISHABLE IN THE EYES OF THE AVERAGE PURCHASER FROM WHOLE
MILK PRODUCTS.  THE RESULT IS THAT THE COMPOUND IS CONFUSED WITH AND
PASSED OFF AS THE WHOLE MILK PRODUCT IN SPITE OF PROPER LABELING. 

WHEN CONGRESS EXERCISES A DELEGATED POWER SUCH AS THAT OVER
INTERSTATE COMMERCE, THE METHODS WHICH IT EMPLOYS TO CARRY OUT ITS
PURPOSES ARE BEYOND ATTACK WITHOUT A CLEAR AND CONVINCING SHOWING THAT
THERE IS NO RATIONAL BASIS FOR THE LEGISLATION; THAT IT IS AN ARBITRARY
FIAT.  FN16 THIS IS NOT SHOWN HERE.  THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF MARCH 4, 1923, 42 STAT. 1486; UNITED STATES V. CAROLENE
PRODUCTS CO., 51 F.SUPP.  675; CAROLENE PRODUCTS CO. V. UNITED STATES,
140 F.2D 61; CAROLENE PRODUCTS CO. V. UNITED STATES, 321 U.S. 760. 

FN2  CF. CAROLENE PRODUCTS CO. V. EVAPORATED MILK ASSOCIATION, 93
F.2D 202.  IN CAROLENE PRODUCTS CO. V. WALLACE, 307 U.S. 612, 308 U.S.
506, HERE ON APPEAL, WE AFFIRMED THE REFUSAL OF THE TRIAL COURT TO
GRANT AN INTERLOCUTORY OR FINAL DECREE WHICH WOULD ENJOIN PROSECUTION
OF THE CORPORATE PETITIONER FOR ALLEGED VIOLATION OF THE FILLED MILK
ACT.  THE AFFIRMANCE WAS BASED ON A LACK OF NECESSITY FOR EQUITABLE
INTERVENTION TO PROTECT THE CAROLENE PRODUCTS CO. FROM CRIMINAL
PROSECUTION. 

FN3  CASES WHICH SUSTAINED THE VALIDITY OF STATE ACTS AGAINST ATTACKS
WHICH WERE BASED ON THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
WERE:  CAROLENE PRODUCTS CO. V. HARTER, 329 PA. 49, 197 A. 627;
CAROLENE PRODUCTS CO. V. MOHLER, 152 KANS. 2, 13, 102 P.2D 1044;
CAROLENE PRODUCTS CO. V. HANRAHAN, 291 KY. 417, 421, 164 S.W.2D 597;
STATE V. SAGE STORES CO., 157 KANS. 404, 412, 413, PAR. 5, 143 P.2D
652. 

CONTRA:  PEOPLE V. CAROLENE PRODUCTS CO., 345 ILL. 166, 177 N.E. 698;
CAROLENE PRODUCTS CO. V. THOMSON, 276 MICH. 172, 267 N.W. 608; CAROLENE
PRODUCTS CO. V. BANNING, 131 NEBR.  429, 268 N.W. 313. 

FN4  "SEC.  2  ....  IT SHALL BE UNLAWFUL FOR ANY PERSON  ...  TO
SHIP OR DELIVER FOR SHIPMENT IN INTERSTATE OR FOREIGN COMMERCE, ANY
FILLED MILK. 

"SEC. 3.  ANY PERSON VIOLATING ANY PROVISION OF THIS ACT SHALL UPON
CONVICTION THEREOF BE SUBJECT TO A FINE OF NOT MORE THAN $1,000 OR
IMPRISONMENT OF NOT MORE THAN ONE YEAR, OR BOTH; ..."  42 STAT. 1487. 

FN5  UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 149.  H.
REP. NO. 355, 67TH CONG., 1ST SESS., PP. 3-4; S. REP. NO. 987, 67TH
CONG., 4TH SESS., PP. 3-4; 62 CONG. REC. PP. 7581, 7616; HEARINGS,
HOUSE COMMITTEE ON AGRICULTURE, H. RES. 6215, 67TH CONG., 1ST SESS.,
VOL. I, PP. 144, 176-77; HEARINGS, SENATE SUB-COMMITTEE OF THE
COMMITTEE ON AGRICULTURE AND FORESTRY, H. RES. 8086, 67TH CONG., 2D
SESS., VOL. I, PP. 27, 48, 67, 89-90, 121-24, 143, 177, 226, 266. 

FN6  H. REP. NO. 355, 67TH CONG., 1ST SESS., P. 2:  "THE COMPOUND CAN
BE MADE MORE CHEAPLY THAN THE REGULAR ARTICLE  ....  FILLED MILK IS
SOLD UNDER VARIOUS TRADE NAMES  ....  THE MANUFACTURERS CAN NOT SELL IT
AS MILK, BUT IT IS PUT UP IN THE SAME SIZE CANS AS REGULAR CONDENSED
MILK, AND THE EVIDENCE BEFORE THE COMMITTEE SHOWS THAT IT IS ADVERTISED
BY THE RETAIL DEALERS AS MILK AND EVAPORATED MILK.  STOREKEEPERS SELL
IT WITH THE STATEMENTS THAT 'IT TAKES THE PLACE OF MILK,' 'JUST AS GOOD
AS CONDENSED AND MUCH CHEAPER,' 'NOTHING BETTER ON THE MARKET,' 'TAKES
THE PLACE OF CONDENSED MILK.'  INSTANCES HAVE BEEN FOUND IN WHICH THE
COCONUT FAT WAS MIXED WITH MILK AND SOLD FOR CREAM; THE COMPOUND HAS
BEEN USED FOR MAKING ICE CREAM  ....  IN MANY CASES RETAILERS SELL THE
COMPOUND FOR THE SAME PRICE AS THE STRAIGHT EVAPORATED MILK, ALTHOUGH
THE PRICE PER 1-POUND CAN TO THEM IS ABOUT 3 CENTS LESS.  A NUMBER OF
SURVEYS IN VARIOUS PARTS OF THE COUNTRY SHOW THAT THE COMPOUND IS SOLD
LARGELY IN SECTIONS INHABITED BY PEOPLE UNABLE TO READ ENGLISH AND
BETTER RESIDENTIAL DISTRICTS."  CF. ALSO S. REP. NO. 987, 67TH CONG.,
4TH SESS., P. 3. 

FN7  JACOB RUPPERT V. CAFFEY, 251 U.S. 264, 299-301; MILLIKEN V.
UNITED STATES, 283 U.S. 15, 24.  CF. PURITY EXTRACT CO. V. LYNCH, 226
U.S. 192, 201; STERLING V. CONSTANTIN, 287 U.S. 378, 398. 

FN8  SEE NEBBIA V. NEW YORK, 291 U.S. 502, 528, NOTE 26.  TO THE
CASES THERE CITED MAY BE ADDED PATTERSON V. KENTUCKY, 97 U.S. 501,
UPHOLDING THE CONSTITUTIONAL VALIDITY OF A STATE STATUTE PROHIBITING
THE SALE OF OILS OR FLUIDS WHICH CAN BE USED FOR ILLUMINATING PURPOSES
IF SUCH OILS OR FLUIDS IGNITE OR PERMANENTLY BURN BELOW 130 DEGREES
FAHRENHEIT; PRICE V. ILLINOIS, 238 U.S. 446, ESTABLISHING THE
CONSTITUTIONALITY OF A STATE STATUTE PROHIBITING THE SALE OF A FOOD
PRESERVATIVE THAT CONTAINED FORMALDEHYDE, HYDROFLUORIC ACID, BORIC ACID
AND SALICYLIC ACID; UNITED STATES V. HILL, 248 U.S. 420, PROHIBITING BY
FEDERAL STATUTE THE TRANSPORTATION OF LIQUOR INTO A STATE WHOSE LAWS
FORBADE ONLY MANUFACTURING AND SALE; CRESCENT COTTON OIL CO. V.
MISSISSIPPI, 257 U.S. 129, VALIDATING A STATE STATUTE PROHIBITING A
CORPORATION FROM OWNING OR OPERATING A COTTON GIN WHEN ALSO INTERESTED
IN THE MANUFACTURE OF COTTONSEED OIL OR COTTONSEED MEAL; WHITFIELD V.
OHIO, 297 U.S. 431, HOLDING VALID A STATE STATUTE WHICH PROHIBITED THE
SALE IN OPEN MARKET OF GOODS MANUFACTURED BY CONVICTS OR PRISONERS;
HENDERSON CO. V. THOMPSON, 300 U.S. 258, UPHOLDING THE VALIDITY OF A
STATE STATUTE PROHIBITING THE USE OF SWEET NATURAL GAS FOR THE
MANUFACTURE OF CARBON BLACK (SEE ALSO WALLS V. MIDLAND CARBON CO., 254
U.S. 300); AND FEDERAL SECURITY ADMINISTRATOR V. QUAKER OATS CO., 318
U.S. 218, HOLDING VALID AN ADMINISTRATIVE REGULATION PROHIBITING
MANUFACTURE OF "FARINA" ENRICHED SOLELY WITH VITAMIN D. 

FN9  SEC. 64(3).  "NO PERSON SHALL MANUFACTURE, SELL OR EXCHANGE,
OFFER OR EXPOSE FOR SALE OR EXCHANGE, OR HAVE IN HIS POSSESSION WITH
THE INTENT TO SELL OR EXCHANGE ANY CONDENSED, EVAPORATED, CONCENTRATED,
POWDERED, DRIED OR DESICCATED MILK, CREAM OR SKIMMED MILK TO WHICH
THERE HAS BEEN ADDED OR WITH WHICH THERE HAS BEEN MIXED, BLENDED OR
COMPOUNDED, ANY FATS OR OILS, OTHER THAN MILK FAT, SO THAT THE FINISHED
PRODUCT SHALL BE IN IMITATION OR SEMBLANCE OF CONDENSED, EVAPORATED,
CONCENTRATED, POWDERED, DRIED OR DESICCATED MILK."  N.Y. LAWS 1922, CH.
365, SEC. 64, AS AMENDED. 

FN10  HEARINGS, SENATE SUB-COMMITTEE OF THE COMMITTEE ON AGRICULTURE
AND FORESTRY, H. RES. 8086, 67TH CONG., 2D SESS., PP. 219, 221-22, 248
49. 

FN11  "SEC.  2.  THAT FOR THE PURPOSES OF THIS ACT CERTAIN
MANUFACTURED SUBSTANCES, CERTAIN EXTRACTS, AND CERTAIN MIXTURES AND
COMPOUNDS, INCLUDING SUCH MIXTURES AND COMPOUNDS WITH BUTTER, SHALL BE
KNOWN AND DESIGNATED AS 'OLEOMARGARINE', NAMELY:  ALL SUBSTANCES
HERETOFORE KNOWN AS OLEOMARGARINE, OLEO, OLEOMARGARINE-OIL, BUTTERINE,
LARDINE, SUINE, AND NEUTRAL; ALL MIXTURES AND COMPOUNDS OF
OLEOMARGARINE, OLEO, OLEOMARGARINE-OIL, BUTTERINE, LARDINE, SUINE, AND
NEUTRAL; ALL LARD EXTRACTS AND TALLOW EXTRACTS; AND ALL MIXTURES AND
COMPOUNDS OF TALLOW, BEEF-FAT, SUET, LARD, LARD-OIL, VEGETABLE-OIL
ANNOTTO, AND OTHER COLORING MATTER, INTESTINAL FAT, AND OFFAL FAT MADE
IN IMITATION OR SEMBLANCE OF BUTTER, OR WHEN SO MADE, CALCULATED OR
INTENDED TO BE SOLD AS BUTTER OR FOR BUTTER."  24 STAT. 209. 

FN12  S. REP. NO. 987, 67TH CONG., 4TH SESS., P. 3; H. REP. NO. 355,
67TH CONG., 1ST SESS., P. 2; 64 CONG. REC. PP. 3951, 7593. 

FN13  SEE AMERICAN LAW INSTITUTE, MODEL CODE OF EVIDENCE, CH. 9,
RULES 801, 802, 803, PP. 319-22; BIKLE, JUDICIAL DETERMINATION OF
QUESTIONS OF FACT AFFECTING THE CONSTITUTIONAL VALIDITY OF LEGISLATIVE
ACTION, 38 HARV. L. REV. 6; NOTE, THE PRESENTATION OF FACTS UNDERLYING
CONSTITUTIONALITY OF STATUTES, 49 HARV. L. REV. 631; MORGAN, JUDICIAL
NOTICE, 57 HARV. L. REV. 269, 291-94; NOTE, 30 COL. L. REV. 360;
WIGMORE, EVIDENCE (3D ED.), SEC. 2555(D), P. 522; BORDEN'S CO. V.
BALDWIN, 293 U.S. 194, 209; UNITED STATES V. CAROLENE PRODUCTS CO., 304
U.S. 144, 153-54. 

FN14  WEST INDIA OIL CO. V. DOMENECH, 311 U.S. 20, 28; UNITED STATES
V. STEWART, 311 U.S. 60, 64; NEUBERGER V. COMMISSIONER, 311 U.S. 83,
85, N. 1; MILK WAGON DRIVERS' UNION V. LAKE VALLEY CO., 311 U.S. 91,
101-103; FEDERAL COMMUNICATIONS COMM'N V. COLUMBIA BROADCASTING SYSTEM,
311 U.S. 132, 137; TAFT V. HELVERING, 311 U.S. 195, 197, N. 4. 

FN15  CF. ZAHN V. BOARD OF PUBLIC WORKS, 274 U.S. 325, 326, 328;
SPROLES V. BINFORD, 286 U.S. 374, 388-89; OLSEN V. NEBRASKA, 313 U.S.
236, 246. 

FN16  UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 153-54;
HEBE CO. V. SHAW, 248 U.S. 297, 304; MUNN V. ILLINOIS, 94 U.S. 113,
132; SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177, 191
92; CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495, 509; TOWNSEND V.
YEOMANS, 301 U.S. 441, 451; O'GORMAN & YOUNG V. HARTFORD INS. CO., 282
U.S. 251, 257-58; HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146,
163; RAST V. VAN DEMAN & LEWIS CO., 240 U.S. 342, 357.    MR. JUSTICE
BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT. 
..END :










SAGE STORES CO. V. KANSAS, 323 U.S. 32 


NO. 34.  ARGUED OCTOBER 17, 1944.  - DECIDED NOVEMBER 6, 1944.  - 157
KAN. 404, 622, 143 P.2D 652, AFFIRMED. 


A STATUTE OF KANSAS FORBIDS THE SALE OR KEEPING FOR SALE OF MILK "TO
WHICH HAS BEEN ADDED ANY FAT OR OIL OTHER THAN MILK FAT."  ONE OF THE
PURPOSES OF THE LEGISLATION WAS PREVENTION OF FRAUD AND DECEPTION IN
THE SALE OF SUCH COMPOUNDS.  HELD: 

1.  THE STATUTE DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  P. 34. 

THE STATUTE IS NOT WITHOUT RATIONAL BASIS EVEN THOUGH IT PERMITS THE
SALE OF SKIM MILK WHILE FORBIDDING THE SALE OF ALLEGEDLY MORE NUTRITIVE
COMPOUNDS. 

2.  THE QUESTION OF THE COVERAGE OF THE STATUTE IS ONE OF STATE LAW. 
P. 35. 

3.  AS APPLIED TO THE PETITIONERS' PRODUCTS, WHICH HAD THE TASTE,
CONSISTENCY, COLOR AND APPEARANCE OF WHOLE MILK PRODUCTS, THE STATUTE
DID NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 
CAROLENE PRODUCTS CO. V. UNITED STATES, ANTE, P. 18.  P. 36. 

SAGE STORES CO. ET AL. V. KANSAS EX REL. MITCHELL (SUBSTITUTED AS
ATTORNEY GENERAL). 

CERTIORARI TO THE SUPREME COURT OF KANSAS. 

CERTIORARI, 321 U.S. 762, TO REVIEW A JUDGMENT OF THE SUPREME COURT
OF KANSAS WHICH, IN AN ORIGINAL PROCEEDING IN QUO WARRANTO, SUSTAINED
THE CONSTITUTIONALITY OF A STATUTE OF THAT STATE AS APPLIED TO THE
PETITIONERS HERE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

AN ORIGINAL ACTION IN QUO WARRANTO IN THE SUPREME COURT OF THE STATE
OF KANSAS WAS BEGUN AGAINST THE SAGE STORES, A KANSAS CORPORATION, AND
CAROLENE PRODUCTS COMPANY, A MICHIGAN CORPORATION, BY THE STATE OF
KANSAS ON THE RELATION OF ITS ATTORNEY GENERAL.  THE PURPOSE OF THE
PROCEEDING WAS TO STOP THE SALE OR OFFERING FOR SALE IN KANSAS OF
FILLED MILK, MANUFACTURED BY THE MICHIGAN CORPORATION AND SOLD BY THE
KANSAS CORPORATION.  A JUDGMENT GRANTING THIS RELIEF WAS ENTERED BY THE
SUPREME COURT OF KANSAS.  157 KANS. 404, 141 P.2D 655. 

A PETITION FOR A WRIT OF CERTIORARI WAS FILED BY BOTH CORPORATIONS
AND GRANTED BY THIS COURT, 321 U.S. 762, TO EXAMINE A SINGLE ISSUE
PRESENTED BY THE PETITION, TO WIT, WHETHER THE KANSAS STATUTE, WHICH
PROHIBITS THE SELLING OR KEEPING FOR SALE OF THE PRODUCTS OF THE
CAROLENE PRODUCTS CO., WAS AN ARBITRARY, UNREASONABLE AND
DISCRIMINATORY INTERFERENCE WITH PETITIONERS' RIGHTS OF LIBERTY AND
PROPERTY IN VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION OF LAW
CLAUSES OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED
STATES.  A SIMILAR QUESTION AS TO THE FEDERAL FILLED MILK ACT UNDER THE
FIFTH AMENDMENT IS DECIDED TODAY BY THIS COURT.  CAROLENE PRODUCTS CO.
V. UNITED STATES, ANTE, P. 18.  LITTLE NEED BE ADDED TO THAT OPINION. 

THE KANSAS STATUTE WAS FIRST PASSED IN 1923.  REV. STAT. KANS. 1923,
SEC. 65-713.  IT WAS REENACTED AS IT NOW STANDS IN 1927.  LAWS OF KANS.
1927, C. 242, SEC. 8(F)(2).  IT READS AS FOLLOWS: 

"IT SHALL BE UNLAWFUL TO MANUFACTURE, SELL, KEEP FOR SALE, OR HAVE IN
POSSESSION WITH INTENT TO SELL OR EXCHANGE, ANY MILK, CREAM, SKIM MILK,
BUTTERMILK, CONDENSED OR EVAPORATED MILK, POWDERED MILK, CONDENSED SKIM
MILK, OR ANY OF THE FLUID DERIVATIVES OF ANY OF THEM TO WHICH HAS BEEN
ADDED ANY FAT OR OIL OTHER THAN MILK FAT, EITHER UNDER THE NAME OF SAID
PRODUCTS, OR ARTICLES OR THE DERIVATIVES THEREOF, OR UNDER ANY
FICTITIOUS OR TRADE NAME WHATSOEVER."  SEC. 65-707(F)(2), GEN. STAT.
KANS. 1935. 

THE COMPOUNDS WHICH PETITIONERS MANUFACTURE AND SELL ARE COVERED BY
THIS STATUTE.  THEY ARE THE SAME COMPOUNDS WHICH ARE DESCRIBED IN
CAROLENE PRODUCTS CO. V. UNITED STATES, SUPRA.  PETITIONERS' DEFENSE IS
THAT THE COMPOUNDS ARE SANITARY AND HEALTHFUL.  THEY ASSERT THAT THE
CANNED COMPOUND IS PROPERLY LABELED AND THAT NO FRAUD IS PRACTICED UPON
THE BUYING PUBLIC TO INDUCE IT TO USE PETITIONERS' COMPOUND INSTEAD OF
WHOLE MILK PRODUCTS.  IT IS ADMITTED THAT THE ORDINARY CONSUMER CANNOT
DISTINGUISH BETWEEN THE COMPOUNDS AND EVAPORATED WHOLE MILK BY ODOR,
TASTE, CONSISTENCY OR OTHER MEANS SHORT OF CHEMICAL ANALYSIS.  STATE V.
SAGE STORES CO., 157 KANS. 404, 443, FINDING 33. 

IN THESE CIRCUMSTANCES, IT IS PETITIONERS' CONTENTION THAT KANSAS'
PROHIBITION OF THE SALE, OR KEEPING FOR SALE, OF THIS HEALTHFUL PRODUCT
VIOLATES THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT. 

APPARENTLY THE OBJECTION UNDER THE EQUAL PROTECTION CLAUSE IS THAT
THE KANSAS STATUTE PERMITS THE SALE OF SKIMMED MILK WHICH HAS LESS
CALORIES AND FEWER VITAMINS THAN PETITIONERS' COMPOUND AND YET FORBIDS
THE SALE OF THE COMPOUND DESPITE ITS HIGHER NUTRITIVE VALUE.  SUCH AN
OBJECTION IS GOVERNED BY THE SAME STANDARDS OF LEGISLATION AS
OBJECTIONS UNDER THE DUE PROCESS CLAUSE.  IT IS A MATTER OF
CLASSIFICATION AND THE POWER OF THE LEGISLATURE TO CLASSIFY IS AS BROAD
AS ITS POWER TO PROHIBIT.  A VIOLATION OF THE FOURTEENTH AMENDMENT IN
EITHER CASE WOULD DEPEND UPON WHETHER THERE IS ANY RATIONAL BASIS FOR
THE ACTION OF THE LEGISLATURE.  UNITED STATES V. CAROLENE PRODUCTS CO.,
304 U.S. 144, 153-54; CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495,
509. 

THIS WRIT OF CERTIORARI BRINGS TO US ONLY THE QUESTION OF THE
VIOLATION BY THE KANSAS LEGISLATION OF THE FOURTEENTH AMENDMENT.  THE
COVERAGE OF THE KANSAS STATUTE IS A MATTER SOLELY FOR THE DETERMINATION
OF KANSAS.  ALLEN-BRADLEY LOCAL V. BOARD, 315 U.S. 740, 747; UNITED
STATES V. TEXAS, 314 U.S. 480, 487.  IN THIS CASE EVIDENCE WAS
INTRODUCED AS TO THE DEFICIENCIES IN CERTAIN PARTICULARS OF
PETITIONERS' COMPOUNDS AS COMPARED WITH WHOLE MILK PRODUCTS.  THE
FINDINGS OF THE COMMISSIONER WHO ACTED FOR THE SUPREME COURT OF KANSAS
APPEAR IN STATE V. SAGE STORES CO., 157 KANS. 430.  HIS CONCLUSIONS
WHICH WERE ACCEPTED BY THE COURT AS TO THE PROPERTIES OF PETITIONERS'
COMPOUND MAY BE GAUGED BY HIS FINDING 53, STATE V. SAGE STORES CO., 157
KANS. AT PP. 449-50. 

"DEFENDANT'S PRODUCT IS WHOLESOME, NUTRITIOUS AND HARMLESS, IN THE
SENSE THAT IT CONTAINS NOTHING OF A TOXIC NATURE, BUT IT IS INFERIOR TO
EVAPORATED WHOLE MILK IN THE CONTENT OF FATTY ACIDS, PHOSPHOLIPINS,
STEROLS AND VITAMINS E AND K, ALL OF WHICH ARE ESSENTIAL IN HUMAN
NUTRITION, WITH THE PROBABLE EXCEPTION OF VITAMIN E IN THE DIET OF
INFANTS.  IN ADDITION, EVAPORATED WHOLE MILK CONTAINS A SUPERIOR GROWTH
PROMOTING PROPERTY, FOUND IN BUTTERFAT AND NOT IN COTTONSEED OIL,
ESSENTIAL TO THE OPTIMUM GROWTH OF INFANTS. 

"THESE DEFICIENCIES IN DEFENDANT'S PRODUCT, AS COMPARED TO EVAPORATED
WHOLE MILK, ARE LARGELY MADE UP FROM OTHER SOURCES WHEN THE PRODUCT IS
USED AS A SUBSTITUTE FOR WHOLE MILK OR EVAPORATED WHOLE MILK IN THE
DIET OF ADULTS WHO CONSUME A VARIED DIET.  WHEN DEFENDANT'S PRODUCT IS
USED AS A SUBSTITUTE FOR WHOLE MILK OR EVAPORATED WHOLE MILK IN THE
DIET OF INFANTS AND CHILDREN WHO DO NOT CONSUME A VARIED DIET, SUCH
DEFICIENCIES ARE NOT MADE UP, AND THE DIET IS PARTIALLY INADEQUATE. 
DEFENDANT'S PRODUCT DOES 'GET INTO THE CHANNELS OF INFANT NUTRITION.'" 

IT WAS ALSO DETERMINED BY THE COMMISSIONER AND APPROVED BY THE COURT
THAT ONE PURPOSE OF THE LEGISLATURE WAS THE PREVENTION OF FRAUD AND
DECEPTION IN THE SALE OF THESE COMPOUNDS.  STATE V. SAGE STORES CO.,
157 KANS. 404, 412-13. 

AS A CONSEQUENCE OF THIS EVIDENCE, FINDINGS OF FACT AND CONCLUSIONS
OF LAW, THE RATIONAL BASIS FOR THE ACTION OF THE LEGISLATURE IN
PROHIBITING THE SALE, OR KEEPING FOR SALE, OF THE COMPOUNDS IS EVEN
MORE DEFINITE AND CLEAR THAN IN CAROLENE PRODUCTS CO. V. UNITED STATES,
ANTE, P. 18.  SINCE PETITIONERS' PRODUCTS HAD THE TASTE, CONSISTENCY,
COLOR AND APPEARANCE OF WHOLE MILK PRODUCTS, WE NEED NOT CONSIDER THE
VALIDITY OF THE KANSAS ACT AS APPLIED TO COMPOUNDS WHICH ARE READILY
DISTINGUISHABLE FROM WHOLE MILK COMPOUNDS.  REFERENCE IS MADE TO PART
"THIRD" OF THE CAROLENE OPINION FOR A DISCUSSION AS TO WHETHER OR NOT A
PROHIBITION OF THESE PRODUCTS VIOLATES DUE PROCESS. 

IN OUR OPINION THE KANSAS LEGISLATION DID NOT VIOLATE THE FOURTEENTH
AMENDMENT.  AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT. 
..END :










WALLING V. HELMERICH & PAYNE, 323 U.S. 37 


NO. 27.  ARGUED OCTOBER 17, 1944.  - DECIDED NOVEMBER 6, 1944.  - 138
F.2D 705, REVERSED. 


1.  CONTRACTS OF EMPLOYMENT PROVIDING FOR THE COMPUTATION OF
COMPENSATION ON THE SO-CALLED POXON OR SPLIT-DAY PLAN, HELD NOT IN
CONFORMITY WITH REQUIREMENTS OF SEC. 7(A) OF THE FAIR LABOR STANDARDS
ACT.  WALLING V. BELO CORP., 316 U.S. 624, DISTINGUISHED.  P. 39. 

THE VICE OF THE SPLIT-DAY PLAN WAS THAT THE CONTRACT REGULAR RATE DID
NOT REPRESENT THE RATE WHICH WAS ACTUALLY PAID FOR ORDINARY, NON
OVERTIME HOURS, NOR DID IT ALLOW EXTRA COMPENSATION TO BE PAID FOR TRUE
OVERTIME HOURS.  IT WAS DERIVED NOT FROM THE ACTUAL HOURS AND WAGES BUT
FROM A MATHEMATICAL FORMULA DESIGNED TO PERPETUATE THE PRE-STATUTORY
WAGE SCALE. 

2.  A SUIT BY THE ADMINISTRATOR UNDER THE FAIR LABOR STANDARDS ACT TO
ENJOIN AN EMPLOYER FROM USE OF CONTRACTS OF EMPLOYMENT PROVIDING FOR
COMPUTATION OF COMPENSATION ON THE SO-CALLED SPLIT-DAY PLAN, HELD NOT
RENDERED MOOT BY THE EMPLOYER'S VOLUNTARY DISCONTINUANCE OF THE USE OF
SUCH CONTRACTS.  P. 43. 

WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U.S. DEPARTMENT
OF LABOR, V. HELMERICH & PAYNE, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 321 U.S. 759, TO REVIEW THE AFFIRMANCE, AS MODIFIED, OF A
JUDGMENT WHICH, IN A SUIT BY THE ADMINISTRATOR, SUSTAINED THE VALIDITY
OF CERTAIN CONTRACTS OF EMPLOYMENT UNDER THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE CONCERNED HERE WITH THE QUESTION WHETHER CERTAIN PROVISIONS OF
EMPLOYMENT CONTRACTS RELATING TO THE COMPUTATION AND APPLICATION OF
REGULAR AND OVERTIME WAGE RATES CONFORM TO THE REQUIREMENTS OF SEC.
7(A) OF THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060, 29 U.S.C.
SEC. 201 ET SEQ. 

RESPONDENT IS ENGAGED IN THE PRODUCTION OF OIL AND GAS FOR INTERSTATE
COMMERCE AND ITS EMPLOYEES ADMITTEDLY ARE COVERED BY THE ACT.  PRIOR TO
OCTOBER 24, 1938, THE EFFECTIVE DATE OF THE ACT, CERTAIN OF
RESPONDENT'S EMPLOYEES WORKED 8-, 10- AND 12-HOUR DAILY SHIFTS, OR
"TOURS," AND WERE PAID A SPECIFIED WAGE FOR EACH TOUR.  THESE WAGES
WERE IN EXCESS OF THE MINIMUM REQUIRED BY THE ACT, THOUGH THE NUMBER OF
TOURS PER WEEK WOULD OFTEN CAUSE AN EMPLOYEE TO WORK MORE THAN THE
MAXIMUM HOURS ALLOWED BY THE ACT WITHOUT OVERTIME PAY BEING REQUIRED. 

IN ORDER TO MAINTAIN THE SAME WAGE LEVELS AFTER THE ACT BECAME
EFFECTIVE, RESPONDENT MADE NEW EMPLOYMENT CONTRACTS WITH THE EMPLOYEES
IN QUESTION WHEREBY THEY RECEIVED THEIR WAGES UNDER THE SO-CALLED
"POXON" OR SPLIT-DAY PLAN.  THIS PLAN ARBITRARILY DIVIDED EACH REGULAR
TOUR INTO TWO PARTS FOR PURPOSES OF CALCULATING AND APPLYING HOURLY
WAGE RATES.  THE FIRST FOUR HOURS OF EACH 8-HOUR TOUR, THE FIRST FIVE
HOURS OF EACH 10-HOUR TOUR AND THE FIRST FIVE HOURS OF EACH 12-HOUR
TOUR WERE ASSIGNED A SPECIFIED HOURLY RATE DESCRIBED AS THE "BASE OR
REGULAR RATE."  THE REMAINING HOURS IN EACH TOUR WERE TREATED AS
"OVERTIME" AND CALLED FOR PAYMENT AT ONE AND ONE-HALF TIMES THE "BASE
OR REGULAR RATE."  THE CONTRACTS THEN RECITED THAT THE "BASE RATE" SET
FORTH "SHALL NEVER APPLY TO MORE THAN 40 HOURS IN ANY WORK WEEK." 

THESE SO-CALLED "REGULAR" AND "OVERTIME" HOURLY RATES WERE CALCULATED
SO AS TO INSURE THAT THE TOTAL WAGES FOR EACH TOUR WOULD CONTINUE THE
SAME AS UNDER THE ORIGINAL CONTRACTS,  FN1  THEREBY AVOIDING THE
NECESSITY OF INCREASING WAGES OR DECREASING HOURS OF WORK AS THE
STATUTORY MAXIMUM WORKWEEK OF 40 HOURS BECAME EFFECTIVE.  FN2  ONLY IN
THE EXTREMELY UNLIKELY CASE WHERE AN EMPLOYEE'S TOURS TOTALLED MORE
THAN 80 HOURS IN A WEEK  FN3  DID HE BECOME ENTITLED TO ANY PAY IN
ADDITION TO THE REGULAR TOUR WAGES THAT HE WOULD HAVE RECEIVED PRIOR TO
THE ADOPTION OF THE SPLIT-DAY PLAN.  UNTIL MORE THAN 80 HOURS HAD BEEN
WORKED THE PLAN OPERATED SO THAT THE EMPLOYEE COULD NOT BE CREDITED
WITH MORE THAN 40 HOURS OF "REGULAR" WORK, THE REMAINING TIME BEING
DENOMINATED "OVERTIME."  HENCE, SINCE THE WAGES UNDER THE OLD SYSTEM
AND UNDER THE SPLIT-DAY PLAN WERE IDENTICAL, THE ORIGINAL TOUR RATES
COULD BE USED AS THE SIMPLE METHOD OF COMPUTING WAGES FOR EACH PAY
PERIOD.  THE ACTUAL AND REGULAR WORKWEEK WAS ACCORDINGLY SHORN OF ALL
SIGNIFICANCE. 

THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS BOTH HELD THAT
THE SPLIT-DAY PLAN OF COMPENSATION, UNDER THE DECISION OF THIS COURT IN
WALLING V. BELO CORP., 316 U.S. 624, DID NOT VIOLATE THE PROVISIONS OF
SEC. 7(A) OF THE FAIR LABOR STANDARDS ACT.  WE CANNOT AGREE. 

MAY EMPLOY ANY OF HIS EMPLOYEES SUBJECT TO THE ACT, UNLESS THE EMPLOYEE
RECEIVES COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF 40 HOURS AT A
RATE "NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE
IS EMPLOYED."  THE SPLIT-DAY PLAN HERE IN ISSUE SATISFIES NEITHER THE
PURPOSE NOR THE MECHANICS OF THIS REQUIREMENT. 

AS WE POINTED OUT IN OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, 577
578, THE CONGRESSIONAL PURPOSE IN ENACTING SEC. 7(A) WAS TWOFOLD:  (1)
TO SPREAD EMPLOYMENT BY PLACING FINANCIAL PRESSURE ON THE EMPLOYER
THROUGH THE OVERTIME PAY REQUIREMENT, SEE ALSO SOUTHLAND GASOLINE CO.
V. BAYLEY, 319 U.S. 44, 48; AND (2) TO COMPENSATE EMPLOYEES FOR THE
BURDEN OF A WORKWEEK IN EXCESS OF THE HOURS FIXED IN THE ACT.  YET
NEITHER OBJECTIVE COULD BE ATTAINED UNDER THE SPLIT-DAY PLAN.  IT
ENABLED RESPONDENT TO AVOID PAYING REAL OVERTIME WAGES FOR AT LEAST THE
FIRST 40 HOURS WORKED IN EXCESS OF THE STATUTORY MAXIMUM WORKWEEK, THUS
NEGATIVING ANY POSSIBLE EFFECT SUCH A PAYMENT MIGHT HAVE HAD UPON THE
SPREADING OF EMPLOYMENT.  AND THE PLAN WAS SO DESIGNED AS TO DEPRIVE
THE EMPLOYEES OF THEIR STATUTORY RIGHT TO RECEIVE FOR ALL HOURS WORKED
IN EXCESS OF THE FIRST REGULAR 40 HOURS ONE AND ONE-HALF TIMES THE
ACTUAL REGULAR RATE.  THE STATUTORY MAXIMUM WORKWEEK OF 40 HOURS WAS BY
CONTRACT TWISTED INTO AN 80 HOUR MAXIMUM WORKWEEK.  NO PLAN SO
OBVIOUSLY INCONSISTENT WITH THE STATUTORY PURPOSE CAN LAY A CLAIM TO
LEGALITY. 

THE SPLIT-DAY PLAN, MOREOVER, VIOLATED THE BASIC RULES FOR COMPUTING
CORRECTLY THE ACTUAL REGULAR RATE CONTEMPLATED BY SEC. 7(A).  WHILE THE
WORDS "REGULAR RATE" ARE NOT DEFINED IN THE ACT, THEY OBVIOUSLY MEAN
THE HOURLY RATE ACTUALLY PAID FOR THE NORMAL, NON-OVERTIME WORKWEEK. 
OVERNIGHT MOTOR CO. V. MISSEL, SUPRA.  TO COMPUTE THIS REGULAR RATE FOR
RESPONDENT'S EMPLOYEES, ASSUMING THE SAME WAGES AND TOURS, REQUIRED
ONLY THE SIMPLE PROCESS OF DIVIDING THE WAGES RECEIVED FOR EACH TOUR BY
THE NUMBER OF HOURS IN THAT TOUR.  FN4  THIS REGULAR RATE WAS THEN
APPLICABLE TO THE FIRST 40 HOURS REGULARLY WORKED ON THE TOURS AND THE
OVERTIME RATE (150% OF THE REGULAR RATE) BECAME EFFECTIVE AS TO ALL
HOURS WORKED IN EXCESS OF 40. 

BUT RESPONDENT'S PLAN MADE NO EFFORT TO BASE THE REGULAR RATE UPON
THE WAGES ACTUALLY RECEIVED OR UPON THE HOURS ACTUALLY AND REGULARLY
SPENT EACH WEEK IN WORKING.  NOR DID IT ATTEMPT TO APPLY THE REGULAR
RATE TO THE FIRST 40 HOURS ACTUALLY AND REGULARLY WORKED.  INSTEAD THE
PLAN PROVIDED FOR A FICTITIOUS REGULAR RATE CONSISTING OF A FIGURE
SOMEWHAT LOWER THAN THE RATE ACTUALLY RECEIVED.  THIS ILLUSORY RATE WAS
ARBITRARILY ALLOCATED TO THE FIRST PORTION OF EACH DAY'S REGULAR LABOR;
THE LATTER PORTION WAS DESIGNATED "OVERTIME" AND CALLED FOR
COMPENSATION AT A RATE ONE AND ONE-HALF TIMES THE FICTITIOUS REGULAR
RATE.  THUS WHEN AN EMPLOYEE ON REGULAR EIGHT-HOUR TOURS HAD ACTUALLY
WORKED 40 HOURS, RESPONDENT COULD POINT TO THE EMPLOYEE'S CONTRACT AND
CLAIM THAT HE HAD WORKED ONLY 20 "REGULAR" HOURS AND 20 "OVERTIME"
HOURS.  HENCE HE WAS ENTITLED TO NO ADDITIONAL REMUNERATION FOR WORK IN
EXCESS OF 40 HOURS EXCEPT IN THE UNLIKELY SITUATION, WHICH NEVER IN
FACT OCCURRED, OF HIS ACTUALLY WORKING MORE THAN 80 HOURS.  THE VICE OF
RESPONDENT'S PLAN LAY IN THE FACT THAT THE CONTRACT REGULAR RATE DID
NOT REPRESENT THE RATE WHICH WAS ACTUALLY PAID FOR ORDINARY, NON
OVERTIME HOURS, NOR DID IT ALLOW EXTRA COMPENSATION TO BE PAID FOR TRUE
OVERTIME HOURS.  IT WAS DERIVED NOT FROM THE ACTUAL HOURS AND WAGES BUT
FROM INGENIOUS MATHEMATICAL MANIPULATIONS, WITH THE SOLE PURPOSE BEING
TO PERPETUATE THE PRE-STATUTORY WAGE SCALE.  FN5 

IT IS NO ANSWER THAT THE ARTIFICIAL REGULAR RATE WAS A PRODUCT OF
CONTRACT OR THAT IT WAS IN EXCESS OF THE STATUTORY MINIMUM.  THE ACT
CLEARLY CONTEMPLATES THE SETTING OF THE REGULAR RATE IN A BONA FIDE
MANNER THROUGH WAGE NEGOTIATIONS BETWEEN EMPLOYER AND EMPLOYEE,
PROVIDED THAT THE STATUTORY MINIMUM IS RESPECTED.  BUT THIS FREEDOM OF
CONTRACT DOES NOT INCLUDE THE RIGHT TO COMPUTE THE REGULAR RATE IN A
WHOLLY UNREALISTIC AND ARTIFICIAL MANNER SO AS TO NEGATE THE STATUTORY
PURPOSES.  EVEN WHEN WAGES EXCEED THE MINIMUM PRESCRIBED BY CONGRESS,
THE PARTIES TO THE CONTRACT MUST RESPECT THE STATUTORY POLICY OF
REQUIRING THE EMPLOYER TO PAY ONE AND ONE-HALF TIMES THE REGULAR HOURLY
RATE FOR ALL HOURS ACTUALLY WORKED IN EXCESS OF 40.  ANY OTHER
CONCLUSION IN THIS CASE WOULD EXALT INGENUITY OVER REALITY AND WOULD
OPEN THE DOOR TO INSIDIOUS DISREGARD OF THE RIGHTS PROTECTED BY THE
ACT. 

NOTHING IN THIS COURT'S DECISION IN WALLING V. BELO CORP., SUPRA,
SANCTIONS THE USE OF THE SPLIT-DAY PLAN.  THE CONTROVERSY THERE
CENTERED ABOUT THE QUESTION WHETHER THE REGULAR RATE SHOULD BE COMPUTED
FROM THE GUARANTEED WEEKLY WAGE OR WHETHER IT SHOULD BE IDENTICAL WITH
THE HOURLY RATE SET FORTH IN THE EMPLOYMENT CONTRACT.  THERE WAS NO
QUESTION, AS HERE, PERTAINING TO THE APPLICABILITY OF THE REGULAR RATE
TO THE FIRST 40 HOURS ACTUALLY AND REGULARLY WORKED, WITH THE OVERTIME
RATE APPLYING TO ALL HOURS WORKED IN EXCESS THEREOF. 

ONE FINAL POINT REMAINS.  PETITIONER HERE FILED A COMPLAINT IN THE
DISTRICT COURT SEEKING, IN PART, AN INJUNCTION TO COMPEL RESPONDENT TO
CEASE ITS USE OF THE SPLIT-DAY CONTRACTS.  TWO MONTHS AFTER THE
COMPLAINT WAS FILED, BUT BEFORE THE CASE CAME ON FOR TRIAL, RESPONDENT
DISCONTINUED THE USE OF THESE CONTRACTS AND SUBSTITUTED DIFFERENT
COMPENSATION PLANS NOT NOW BEFORE US.  THE DISTRICT COURT, HOWEVER,
DENIED THE INJUNCTION ON THE MERITS INSOFAR AS THE SPLIT-DAY CONTRACTS
WERE CONCERNED, AND THE COURT BELOW AFFIRMED ON A LIKE BASIS.  138 F.2D
705.  IN GRANTING CERTIORARI UPON THE QUESTION OF THE LEGALITY OF THE
SPLIT-DAY PLAN WE ASKED FOR A DISCUSSION OF THE QUESTION WHETHER
RESPONDENT'S DISCONTINUANCE OF THE PLAN RENDERED THE CASE MOOT.  321
U.S. 759.  WE HOLD THAT THE CASE IS NOT MOOT UNDER THESE
CIRCUMSTANCES.  DESPITE RESPONDENT'S VOLUNTARY CESSATION OF THE
CHALLENGED CONDUCT, A CONTROVERSY BETWEEN THE PARTIES OVER THE LEGALITY
OF THE SPLIT-DAY PLAN STILL REMAINS.  VOLUNTARY DISCONTINUANCE OF AN
ALLEGED ILLEGAL ACTIVITY DOES NOT OPERATE TO REMOVE A CASE FROM THE
AMBIT OF JUDICIAL POWER.  SEE HECHT CO. V. BOWLES, 321 U.S. 321, 327;
OTIS & CO. V. SECURITIES & EXCHANGE COMMISSION, 106 F.2D 579, 583-584. 
RESPONDENT HAS CONSISTENTLY URGED THE VALIDITY OF THE SPLIT-DAY PLAN
AND WOULD PRESUMABLY BE FREE TO RESUME THE USE OF THIS ILLEGAL PLAN
WERE NOT SOME EFFECTIVE RESTRAINT MADE.  THERE IS THUS "AN ACTUAL
CONTROVERSY, AND ADVERSE INTERESTS," LORD V. VEAZIE, 8 HOW.  251, 255,
WITH A "SUBJECT-MATTER ON WHICH THE JUDGMENT OF THE COURT CAN OPERATE,"
EX PARTE BAEZ, 177 U.S. 378, 390; ST. PIERRE V. UNITED STATES, 319 U.S.
41, 42. 

WE ACCORDINGLY REVERSE THE JUDGMENT OF THE COURT BELOW WITH
DIRECTIONS TO REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  THUS THE ROTARY HELPERS EMPLOYED BY RESPONDENT FORMERLY RECEIVED
$7 FOR EACH EIGHT HOUR TOUR.  UNDER THE SPLIT-DAY PLAN, THEY RECEIVED A
"REGULAR RATE" OF 70 CENTS AN HOUR FOR THE FIRST FOUR HOURS OF EACH
TOUR AND AN "OVERTIME" RATE OF $1.05 FOR EACH OF THE REMAINING FOUR
HOURS.  THIS TOTALLED $7 FOR THE TOUR. 

FN2  DURING THE FIRST YEAR AFTER THE EFFECTIVE DATE OF THE ACT THE
MAXIMUM WAS 44 HOURS; DURING THE SECOND YEAR 42 HOURS; AND THEREAFTER
40 HOURS. 

FN3  FOR AN EMPLOYEE WORKING ON 12-HOUR TOURS, IT WAS NECESSARY TO
WORK AT LEAST 96 HOURS PER WEEK BEFORE BECOMING ENTITLED TO INCREASED
WAGES UNDER THE SPLIT-DAY PLAN. 

FN4  IN THIS CASE THE WEEKLY WAGE DIVIDED BY THE NUMBER OF HOURS
ACTUALLY WORKED IN THE WEEK WOULD HAVE YIELDED THE SAME REGULAR RATE. 
UNDER EITHER COMPUTATION, A ROTARY HELPER BEING PAID $7 FOR EACH EIGHT
HOUR TOUR WAS RECEIVING 87 1/2 CENTS PER HOUR.  THIS WAS HIS REGULAR
RATE REGARDLESS OF THE NUMBER OF TOURS PER WEEK.  THAT RATE WAS
APPLICABLE TO THE FIRST 40 HOURS REGULARLY WORKED, OR TO THE FIRST FIVE
TOURS.  FOR ALL HOURS IN EXCESS OF 40, THE ROTARY HELPER WAS ENTITLED
TO ONE AND ONE-HALF TIMES THAT RATE, OR $1.31 1/4.  WE, OF COURSE,
EXPRESS NO OPINION AS TO THE PROPER COMPUTATION OF THE REGULAR RATE
UNDER OTHER CIRCUMSTANCES.  NOR DO WE INTEND TO INDICATE THAT THE
FORMULA WE HAVE USED AS SATISFYING THE STATUTORY REQUIREMENTS IS THE
ONLY ONE WHICH RESPONDENT COULD ADOPT AS COMPLYING WITH THEM. 

FN5  IN PARAGRAPH 70(4) OF INTERPRETATIVE BULLETIN NO. 4, AS REVISED
IN NOVEMBER, 1940, THE ADMINISTRATOR EXPRESSED HIS OPINION THAT A PLAN
SIMILAR TO THAT OF RESPONDENT'S DID NOT CONFORM TO THE ACT.  WHILE THIS
OPINION IS NOT BINDING ON THE ADMINISTRATION OF THE ACT, IT DOES "CARRY
PERSUASIVENESS AS AN EXPRESSION OF THE VIEW OF THOSE EXPERIENCED IN THE
ADMINISTRATION OF THE ACT AND ACTING WITH THE ADVICE OF A STAFF
SPECIALIZING IN ITS INTERPRETATION AND APPLICATION."  OVERNIGHT MOTOR
CO. V. MISSEL, 316 U.S. 572, 580-581, N. 17. 
..END :

















BAUMGARTNER V. UNITED STATES, 322 U.S. 665 


NO. 493.  ARGUED APRIL 26, 1944.  - DECIDED JUNE 12, 1944.  - 138 F.2D
29, REVERSED. 


1.  THE RULE THAT CONCURRENT FINDINGS OF TWO LOWER COURTS ARE
PERSUASIVE IN SUPPORT OF THEIR JUDGMENTS DOES NOT RELIEVE THIS COURT OF
THE TASK OF EXAMINING THE FOUNDATION OF FINDINGS IN PARTICULAR CASES. 
P. 670. 

2.  IN A DENATURALIZATION PROCEEDING INVOLVING ISSUES OF BELIEF OR
FRAUD, THE GOVERNMENT'S PROOF MUST BE CLEAR, UNEQUIVOCAL, AND
CONVINCING.  P. 670. 

3.  THE CONCLUSION OF THE TWO LOWER COURTS THAT THAT EXACTING
STANDARD OF PROOF HAS ON THE WHOLE RECORD BEEN SATISFIED CAN NOT BE
DEEMED AN UNREVIEWABLE "FINDING OF FACT."  P. 671. 

4.  IN A SUIT BROUGHT BY THE UNITED STATES UNDER SEC. 338 OF THE
NATIONALITY ACT OF 1940 TO SET ASIDE A NATURALIZATION DECREE AND CANCEL
A CERTIFICATE OF CITIZENSHIP - ISSUED TEN YEARS PREVIOUSLY - ON GROUNDS
OF FRAUD AND ILLEGAL PROCUREMENT, HELD THAT THE EVIDENCE WAS
INSUFFICIENT TO SUSTAIN THE CHARGES THAT AT THE TIME OF HIS ADMISSION
TO CITIZENSHIP THE DEFENDANT DID NOT TRULY AND FULLY RENOUNCE HIS
FOREIGN ALLEGIANCE AND DID NOT IN FACT INTEND TO SUPPORT THE
CONSTITUTION AND LAWS OF THE UNITED STATES.  P. 677. 

BAUMGARTNER V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 321 U.S. 756, TO REVIEW THE AFFIRMANCE OF A DECREE WHICH,
IN A PROCEEDING BROUGHT BY THE UNITED STATES, SET ASIDE AN ORDER
ADMITTING THE DEFENDANT TO CITIZENSHIP AND CANCELED HIS CERTIFICATE OF
NATURALIZATION, 47 F.SUPP.  622. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON SEPTEMBER 26, 1932, THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI ENTERED ITS ORDER ADMITTING BAUMGARTNER TO
CITIZENSHIP AND ISSUED A CERTIFICATE OF NATURALIZATION TO HIM.  ALMOST
TEN YEARS LATER, ON AUGUST 21, 1942, THE UNITED STATES BROUGHT THIS
SUIT UNDER SEC. 338 OF THE NATIONALITY ACT OF 1940(54 STAT. 1137, 1158,
8 U.S.C. SEC. 738) TO SET ASIDE THE NATURALIZATION DECREE AND CANCEL
THE CERTIFICATE.  FN1  THE DISTRICT COURT ENTERED A DECREE FOR THE
GOVERNMENT, 47 F.SUPP.  622, WHICH THE CIRCUIT COURT OF APPEALS FOR THE
EIGHTH CIRCUIT, WITH ONE JUDGE DISSENTING, AFFIRMED.  138 F.2D 29.  WE
BROUGHT THE CASE HERE BECAUSE IT RAISES IMPORTANT ISSUES IN THE PROPER
ADMINISTRATION OF THE LAW AFFECTING NATURALIZED CITIZENS.  321 U.S.
756. 

AS A CONDITION TO RECEIVING HIS AMERICAN CITIZENSHIP, BAUMGARTNER,
LIKE EVERY OTHER ALIEN APPLYING FOR THAT GREAT GIFT, WAS REQUIRED TO
DECLARE ON OATH THAT HE RENOUNCED HIS FORMER ALLEGIANCE, IN THIS CASE
TO THE GERMAN REICH, AND THAT HE WOULD "SUPPORT AND DEFEND THE
CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AGAINST ALL
ENEMIES, FOREIGN AND DOMESTIC," AND THAT HE WOULD "BEAR TRUE FAITH AND
ALLEGIANCE TO THE SAME."  THAT HE DID NOT TRULY AND FULLY RENOUNCE HIS
ALLEGIANCE TO GERMANY AND THAT HE DID NOT IN FACT INTEND TO SUPPORT THE
CONSTITUTION AND LAWS OF THE UNITED STATES AND TO GIVE THEM TRUE FAITH
AND ALLEGIANCE, ARE THE CHARGES OF FRAUD AND ILLEGALITY ON WHICH HIS
CITIZENSHIP IS CLAIMED FORFEIT. 

AS IS TRUE OF THE DETERMINATION OF ALL ISSUES OF FALSITY AND FRAUD,
THE CASE DEPENDS ON ITS OWN PARTICULAR FACTS.  BUT THE DIVISION OF
OPINION AMONG THE JUDGES BELOW MAKES MANIFEST THAT FACTS DO NOT ASSESS
THEMSELVES AND THAT THE DECISIVE ELEMENT IS THE ATTITUDE APPROPRIATE
FOR JUDGMENT OF THE FACTS IN A CASE LIKE THIS.  THE TWO LOWER COURTS
HAVE SUSTAINED THE GOVERNMENT'S CLAIM THAT EXPRESSIONS BY BAUMGARTNER,
IN CONVERSATIONS WITH OTHERS AND IN THE SOLILOQUIES OF A DIARY, SHOWED
THAT HE CONSCIOUSLY WITHHELD COMPLETE RENUNCIATION OF HIS ALLEGIANCE TO
GERMANY AND ENTERTAINED RESERVATIONS IN HIS OATH OF ALLEGIANCE TO THIS
COUNTRY, ITS CONSTITUTION AND ITS LAWS.  WHAT FOLLOWS IS A FAIR SUMMARY
OF THE EVIDENCE ON WHICH THIS FINDING RESTS, PUTTING THE GOVERNMENT'S
CASE IN ITS MOST FAVORABLE LIGHT. 

BAUMGARTNER WAS BORN IN KIEL, GERMANY, ON JANUARY 20, 1895, AND
BROUGHT UP IN MODESTLY COMFORTABLE CIRCUMSTANCES.  HE RECEIVED A
CLASSICAL HIGH-SCHOOL EDUCATION, WHICH HE COMPLETED IN TIME TO ENTER
THE GERMAN ARMY IN 1914.  HE WAS COMMISSIONED A SECOND LIEUTENANT IN
1917, AND SHORTLY THEREAFTER HE WAS CAPTURED BY THE BRITISH AND
CONFINED IN ENGLAND UNTIL NOVEMBER, 1919.  UPON HIS RETURN TO GERMANY,
BAUMGARTNER STUDIED AT THE UNIVERSITY OF DARMSTADT, FROM WHICH HE WAS
GRADUATED IN 1925 AS AN ELECTRICAL ENGINEER.  THEREUPON HE WAS EMPLOYED
BY A PUBLIC UTILITY COMPANY UNTIL JANUARY, 1927, WHEN HE LEFT FOR THE
UNITED STATES.  SHORTLY BEFORE, BAUMGARTNER HAD MARRIED, AND HIS WIFE
FOLLOWED HIM TO THIS COUNTRY LATER IN THE SAME YEAR. 

FOR ABOUT THREE MONTHS, BAUMGARTNER STAYED WITH FRIENDS IN ILLINOIS,
AND THEN CAME TO KANSAS CITY, MISSOURI, WHERE HE WAS EMPLOYED BY THE
KANSAS CITY POWER AND LIGHT COMPANY.  HE CONTINUED IN ITS EMPLOY DOWN
TO THE TIME OF THIS SUIT.  THE MAN TO WHOM HE REPORTED TO WORK
TESTIFIED THAT AFTER ABOUT TWO DAYS ON THE JOB, BAUMGARTNER BEGAN TO
DISCUSS THE POLITICAL SCENE IN GERMANY, TO EXPRESS A LACK OF ENTHUSIASM
FOR THE THEN GERMAN GOVERNMENT, AND TO EXTOL THE VIRTUES OF HITLER AND
HIS MOVEMENT.  BAUMGARTNER SPOKE SO PERSISTENTLY ABOUT THE SUPERIORITY
OF GERMAN PEOPLE, THE GERMAN SCHOOLS, AND THE ENGINEERING WORK OF THE
GERMANS, THAT HE AROUSED ANTAGONISM AMONG HIS CO-WORKERS AND WAS
TRANSFERRED TO A DIFFERENT SECTION OF THE PLANT. 

THERE WAS TESTIMONY THAT IN 1933 OR 1934 MRS. BAUMGARTNER'S MOTHER
VISITED THIS COUNTRY, AND THAT AFTER THIS VISIT, BAUMGARTNER, BEGINNING
IN 1934, "PRAISED THE WORK THAT HITLER WAS DOING OVER THERE IN BRINGING
GERMANY BACK, ON REPEATED OCCASIONS."  EVIDENCE OF STATEMENTS MADE BY
BAUMGARTNER OVER A PERIOD OF ABOUT SEVEN YEARS BEGINNING IN 1933
INDICATED OFT-REPEATED ADMIRATION FOR THE NAZI GOVERNMENT, COMPARISONS
BETWEEN PRESIDENT ROOSEVELT AND ADOLF HITLER WHICH LED TO CONCLUSIONS
THAT THIS COUNTRY WOULD BE BETTER OFF IF RUN AS HITLER RAN GERMANY,
"THAT REGIMENTATION, AS THE NAZIS, FORMED IT WAS SUPERIOR TO THE
DEMOCRACY," AND THAT "THE DEMOCRACY OF THE UNITED STATES WAS A
PRACTICAL FARCE."  ONE WITNESS OF GERMAN EXTRACTION TESTIFIED THAT
BAUMGARTNER TOLD HIM HE WAS "A TRAITOR TO MY COUNTRY" BECAUSE OF THE
WITNESS'S CONDEMNATION OF HITLER.  BAUMGARTNER MADE PUBLIC SPEECHES ON
AT LEAST THREE OCCASIONS BEFORE BUSINESSMEN'S GROUPS, CLUBS, AND THE
LIKE, IN WHICH HE TOLD OF THE ACCOMPLISHMENTS OF THE NAZI GOVERNMENT
AND INDICATED THAT "HE WOULD BE GLAD TO LIVE UNDER THE REGIME OF
HITLER." 

DURING 1937 AND 1938, BAUMGARTNER CONDUCTED A SUNDAY SCHOOL CLASS,
AND FORMER STUDENTS TESTIFIED THAT THE DISCUSSION IN CLASS TURNED TO
GERMANY VERY FREQUENTLY, THAT BAUMGARTNER INDICATED THAT HIS STUDENTS
COULD GET A FAIRER PICTURE OF CONDITIONS IN GERMANY FROM THE GERMAN
RADIO, AND THAT GERMANY WAS JUSTIFIED IN MUCH OF WHAT IT WAS DOING. 
THE SCHOOL SUPERINTENDENT ALSO TESTIFIED THAT HE HAD RECEIVED
COMPLAINTS THAT BAUMGARTNER WAS PREACHING NAZISM. 

IN 1938 BAUMGARTNER RESIGNED FROM THE COUNTRY CLUB CONGREGATIONAL
CHURCH IN KANSAS CITY BECAUSE HE OBJECTED TO THE INJECTION OF POLITICS
INTO THE SERMONS.  IN MAY OF THE NEXT YEAR HIS WIFE AND THEIR THREE
CHILDREN, WHO HAD BEEN BORN IN KANSAS CITY, WENT TO GERMANY TO VISIT
MRS. BAUMGARTNER'S PARENTS.  ONE WITNESS TESTIFIED THAT BAUMGARTNER
EXPLAINED THIS TRIP IN PART BY SAYING THAT "HE WANTED THE CHILDREN TO
BE BROUGHT UP IN GERMAN SCHOOLS," AND WHEN WAR BROKE OUT IN SEPTEMBER,
1939, MRS. BAUMGARTNER CABLED FOR MONEY TO RETURN BUT BAUMGARTNER COULD
NOT RAISE THE NECESSARY FUNDS AND FELT THAT HIS FAMILY WOULD BE AS SAFE
IN GERMANY AS HERE.  BAUMGARTNER REMARKED THAT HE WANTED HIS WIFE TO
COME BACK FROM GERMANY, WHEN SHE DID, ON A GERMAN BOAT.  ONE OF
BAUMGARTNER'S NEIGHBORS TESTIFIED THAT IN A CONVERSATION IN DECEMBER,
1939, BAUMGARTNER, ASKED ABOUT HIS THIRTEEN-YEAR-OLD DAUGHTER THEN IN
GERMANY, SAID SARCASTICALLY:  "EDITH HAS DONE A VERY UN-AMERICAN THING,
SHE HAS JOINED THE NAZI YOUTH MOVEMENT." 

THERE WAS TESTIMONY THAT BAUMGARTNER JUSTIFIED THE GERMAN INVASIONS
IN THE LATE 1930'S, AND ANNOUNCED, WHEN DUNKERQUE FELL, THAT "TODAY I
AM REJOICING."  ONE WITNESS TESTIFIED THAT BAUMGARTNER TOLD HIM THAT HE
"BELONGED TO AN ORDER CALLED THE SO-CALLED 'BUND'," AND THE DIARY WHICH
BAUMGARTNER KEPT FROM DECEMBER 1, 1938, TO THE SUMMER OF 1941 REVEALS
THAT HE ATTENDED A MEETING OF THE GERMAN VOCATIONAL LEAGUE WHERE THE
GERMAN NATIONAL ANTHEM WAS SUNG AND "EVERYONE NATURALLY AROSE AND
ASSUMED THE USUAL GERMAN STANCE WITH THE ARM EXTENDED TO GIVE THE
NATIONAL SOCIALIST GREETING."  OTHER DIARY ENTRIES REFLECT VIOLENT ANTI
SEMITISM, IMPATIENCE AT THE LACK OF PRO-GERMAN MILITANCY OF GERMAN
AMERICANS, AND APPROVAL OF GERMANS WHO HAVE NOT "BEEN AMERICANIZED,
THAT IS, RUINED."  FN2  FINALLY, BAUMGARTNER REPLIED IN THE AFFIRMATIVE
TO THE TRIAL JUDGE'S QUESTION:  "WAS YOUR ATTITUDE TOWARDS THE
PRINCIPLES OF THE AMERICAN GOVERNMENT IN 1932 WHEN YOU TOOK THE OATH
THE SAME AS IT HAS BEEN EVER SINCE?" 

THAT THE CONCURRENT FINDINGS OF TWO LOWER COURTS ARE PERSUASIVE PROOF
IN SUPPORT OF THEIR JUDGMENTS IS A RULE OF WISDOM IN JUDICIAL
ADMINISTRATION.  IN REAFFIRMING ITS IMPORTANCE WE MEAN TO PAY MORE THAN
LIP SERVICE.  BUT THE RULE DOES NOT RELIEVE US OF THE TASK OF EXAMINING
THE FOUNDATION FOR FINDINGS IN A PARTICULAR CASE.  THE MEASURE OF PROOF
REQUISITE TO DENATURALIZE A CITIZEN WAS BEFORE THIS COURT IN
SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118.  IT WAS THERE HELD THAT
PROOF TO BRING ABOUT A LOSS OF CITIZENSHIP MUST BE CLEAR AND
UNEQUIVOCAL.  WE CANNOT ESCAPE THE CONVICTION THAT THE CASE MADE OUT BY
THE GOVERNMENT LACKS THAT SOLIDITY OF PROOF WHICH LEAVES NO TROUBLING
DOUBT IN DECIDING A QUESTION OF SUCH GRAVITY AS IS IMPLIED IN AN
ATTEMPT TO REDUCE A PERSON TO THE STATUS OF ALIEN FROM THAT OF
CITIZEN. 

THE PHRASE "FINDING OF FACT" MAY BE A SUMMARY CHARACTERIZATION OF
COMPLICATED FACTORS OF VARYING SIGNIFICANCE FOR JUDGMENT.  SUCH A
"FINDING OF FACT" MAY BE THE ULTIMATE JUDGMENT ON A MASS OF DETAILS
INVOLVING NOT MERELY AN ASSESSMENT OF THE TRUSTWORTHINESS OF WITNESSES
BUT OTHER APPROPRIATE INFERENCES THAT MAY BE DRAWN FROM LIVING
TESTIMONY WHICH ELUDE PRINT.  THE CONCLUSIVENESS OF A "FINDING OF FACT"
DEPENDS ON THE NATURE OF THE MATERIALS ON WHICH THE FINDING IS BASED. 
THE FINDING EVEN OF A SO-CALLED "SUBSIDIARY FACT" MAY BE A MORE OR LESS
DIFFICULT PROCESS VARYING ACCORDING TO THE SIMPLICITY OR SUBTLETY OF
THE TYPE OF "FACT" IN CONTROVERSY.  FINDING SO-CALLED ULTIMATE "FACTS"
MORE CLEARLY IMPLIES THE APPLICATION OF STANDARDS OF LAW.  AND SO THE
"FINDING OF FACT" EVEN IF MADE BY TWO COURTS MAY GO BEYOND THE
DETERMINATION THAT SHOULD NOT BE SET ASIDE HERE.  THOUGH LABELED
"FINDING OF FACT," IT MAY INVOLVE THE VERY BASIS ON WHICH JUDGMENT OF
FALLIBLE EVIDENCE IS TO BE MADE.  THUS, THE CONCLUSION THAT MAY
APPROPRIATELY BE DRAWN FROM THE WHOLE MASS OF EVIDENCE IS NOT ALWAYS
THE ASCERTAINMENT OF THE KIND OF "FACT" THAT PRECLUDES CONSIDERATION BY
THIS COURT.  SEE, E.G., BEYER V. LEFEVRE, 186 U.S. 114.  PARTICULARLY
IS THIS SO WHERE A DECISION HERE FOR REVIEW CANNOT ESCAPE BROADLY
SOCIAL JUDGMENTS - JUDGMENTS LYING CLOSE TO OPINION REGARDING THE WHOLE
NATURE OF OUR GOVERNMENT AND THE DUTIES AND IMMUNITIES OF CITIZENSHIP. 
DEFERENCE PROPERLY DUE TO THE FINDINGS OF A LOWER COURT DOES NOT
PRECLUDE THE REVIEW HERE OF SUCH JUDGMENTS.  THIS RECOGNIZED SCOPE OF
APPELLATE REVIEW IS USUALLY DIFFERENTIATED FROM REVIEW OF ORDINARY
QUESTIONS OF FACT BY BEING CALLED REVIEW OF A QUESTION OF LAW, BUT THAT
IS OFTEN NOT AN ILLUMINATING TEST AND IS NEVER SELF-EXECUTING.  SUFFICE
IT TO SAY THAT EMPHASIS ON THE IMPORTANCE OF "CLEAR, UNEQUIVOCAL, AND
CONVINCING" PROOF, SEE SCHNEIDERMAN V. UNITED STATES, SUPRA, AT 125, ON
WHICH TO REST THE CANCELLATION OF A CERTIFICATE OF NATURALIZATION WOULD
BE LOST IF THE ASCERTAINMENT BY THE LOWER COURTS WHETHER THAT EXACTING
STANDARD OF PROOF HAD BEEN SATISFIED ON THE WHOLE RECORD WERE TO BE
DEEMED A "FACT" OF THE SAME ORDER AS ALL OTHER "FACTS," NOT OPEN TO
REVIEW HERE. 

THE GRAVAMEN OF THE GOVERNMENT'S COMPLAINT AND OF THE FINDINGS AND
OPINIONS BELOW IS THAT BAUMGARTNER CONSCIOUSLY WITHHELD ALLEGIANCE TO
THE UNITED STATES AND ITS CONSTITUTION AND LAWS; IN SHORT, THAT
BAUMGARTNER WAS GUILTY OF FRAUD.  TO PROVE SUCH INTENTIONAL
MISREPRESENTATION EVIDENCE CALCULATED TO ESTABLISH ONLY THE OBJECTIVE
FALSITY OF BAUMGARTNER'S OATH WAS ADDUCED.  NOTHING ELSE WAS OFFERED TO
SHOW THAT BAUMGARTNER WAS AWARE OF A CONFLICT BETWEEN HIS VIEWS AND THE
NEW POLITICAL ALLEGIANCE HE ASSUMED.  BUT EVEN IF OBJECTIVE FALSITY AS
AGAINST PERJURIOUS FALSITY OF THE OATH IS TO BE DEEMED SUFFICIENT UNDER
SEC. 338(A) OF THE NATIONALITY ACT OF 1940 TO REVOKE AN ADMISSION TO
CITIZENSHIP, IT IS OUR VIEW THAT THE EVIDENCE DOES NOT MEASURE UP TO
THE STANDARD OF PROOF WHICH MUST BE APPLIED TO THIS CASE. 

WE COME THEN TO A CONSIDERATION OF THE EVIDENCE IN THE CONTEXT IN
WHICH THAT EVIDENCE IS TO BE JUDGED.  CONGRESS ALONE HAS BEEN ENTRUSTED
BY THE CONSTITUTION WITH THE POWER TO GIVE OR WITHHOLD NATURALIZATION
AND TO THAT END "TO ESTABLISH A UNIFORM RULE OF NATURALIZATION."  ART.
I, SEC. 8, CLAUSE 4.  IN EXERCISING ITS POWER, CONGRESS HAS AUTHORIZED
THE COURTS TO GRANT AMERICAN CITIZENSHIP ONLY IF THE ALIEN HAS
SATISFIED THE CONDITIONS IMPOSED BY CONGRESS FOR NATURALIZATION.  THERE
IS NO "RIGHT TO NATURALIZATION UNLESS ALL STATUTORY REQUIREMENTS ARE
COMPLIED WITH."  UNITED STATES V. GINSBERG, 243 U.S. 472, 475.  AND SO
"IF A CERTIFICATE IS PROCURED WHEN THE PRESCRIBED QUALIFICATIONS HAVE
NO EXISTENCE IN FACT, IT MAY BE CANCELLED BY SUIT."  TUTUN V. UNITED
STATES, 270 U.S. 568, 578.  FROM THE EARLIEST DAYS OF THE REPUBLIC,
CONGRESS HAS REQUIRED AS A CONDITION OF CITIZENSHIP THAT THE ALIEN
RENOUNCE HIS FOREIGN ALLEGIANCE AND SWEAR ALLEGIANCE TO THIS COUNTRY
AND ITS CONSTITUTION.  ACT OF JANUARY 29, 1795, 1 STAT. 414.  BY THIS
REQUIREMENT CONGRESS HAS NOT USED MEANINGLESS WORDS.  NOR, ON THE OTHER
HAND, HAS IT THEREBY EXPRESSED A NARROW TEST OR FORMULA SUSCEPTIBLE OF
ALMOST MECHANICAL PROOF, AS IS TRUE OF OTHER PREREQUISITES FOR
NATURALIZATION - PERIOD OF RESIDENCE, DOCUMENTATION OF ARRIVAL,
REQUISITE NUMBER OF SPONSORING WITNESSES AND THE LIKE.  ALLEGIANCE TO
THIS GOVERNMENT AND ITS LAWS, IS A COMPENDIOUS PHRASE TO DESCRIBE THOSE
POLITICAL AND LEGAL INSTITUTIONS THAT ARE THE ENDURING FEATURES OF
AMERICAN POLITICAL SOCIETY.  WE ARE HERE DEALING WITH A TEST EXPRESSING
A BROAD CONCEPTION - A BREADTH APPROPRIATE TO THE NATURE OF THE SUBJECT
MATTER, BEING NOTHING LESS THAN THE BONDS THAT TIE AMERICANS TOGETHER
IN DEVOTION TO A COMMON FEALTY.  THE SPACIOUS SCOPE OF THIS CONCEPTION
WAS EXPRESSED BY THIS COURT IN STATING THAT THE CONSTITUTION "WAS MADE
FOR AN UNDEFINED AND EXPANDING FUTURE, AND FOR A PEOPLE GATHERED AND TO
BE GATHERED FROM MANY NATIONS AND OF MANY TONGUES," HURTADO V.
CALIFORNIA, 110 U.S. 516, 530-31, AND AGAIN, "WHEN WE ARE DEALING WITH
WORDS THAT ALSO ARE A CONSTITUENT ACT, LIKE THE CONSTITUTION OF THE
UNITED STATES, WE MUST REALIZE THAT THEY HAVE CALLED INTO LIFE A BEING
THE DEVELOPMENT OF WHICH COULD NOT HAVE BEEN FORESEEN COMPLETELY BY THE
MOST GIFTED OF ITS BEGETTERS.  IT WAS ENOUGH FOR THEM TO REALIZE OR TO
HOPE THAT THEY HAD CREATED AN ORGANISM; IT HAS TAKEN A CENTURY AND HAS
COST THEIR SUCCESSORS MUCH SWEAT AND BLOOD TO PROVE THAT THEY CREATED A
NATION.  THE CASE BEFORE US MUST BE CONSIDERED IN THE LIGHT OF OUR
WHOLE EXPERIENCE AND NOT MERELY IN THAT OF WHAT WAS SAID A HUNDRED
YEARS AGO."  MISSOURI V. HOLLAND, 252 U.S. 416, 433. 

TO ASCERTAIN FULFILMENT OF A TEST IMPLYING SO EXPANSIVE A REACH
PRESENTS DIFFICULT AND DOUBTFUL PROBLEMS EVEN FOR JUDGES PRESUMABLY
WELL-TRAINED IN THE MEANING OF OUR COUNTRY'S INSTITUTIONS AND THEIR
DEMANDS FROM ITS CITIZENS.  "UNDER OUR CONSTITUTION, A NATURALIZED
CITIZEN STANDS ON AN EQUAL FOOTING WITH THE NATIVE CITIZEN IN ALL
RESPECTS, SAVE THAT OF ELIGIBILITY TO THE PRESIDENCY."  LURIA V. UNITED
STATES, 231 U.S. 9, 22.  ONE OF THE PREROGATIVES OF AMERICAN
CITIZENSHIP IS THE RIGHT TO CRITICIZE PUBLIC MEN AND MEASURES - AND
THAT MEANS NOT ONLY INFORMED AND RESPONSIBLE CRITICISM BUT THE FREEDOM
TO SPEAK FOOLISHLY AND WITHOUT MODERATION.  OUR TRUST IN THE GOOD SENSE
OF THE PEOPLE ON DELIBERATE REFLECTION GOES DEEP.  FOR SUCH IS THE
CONTRADICTORINESS OF THE HUMAN MIND THAT THE EXPRESSION OF VIEWS WHICH
MAY COLLIDE WITH CHERISHED AMERICAN IDEALS DOES NOT NECESSARILY PROVE
WANT OF DEVOTION TO THE NATION.  IT WOULD BE FOOLISH TO DENY THAT EVEN
BLATANT INTOLERANCE TOWARD SOME OF THE PRESUPPOSITIONS OF THE
DEMOCRATIC FAITH MAY NOT IMPLY ROOTED DISBELIEF IN OUR SYSTEM OF
GOVERNMENT. 

FORSWEARING PAST POLITICAL ALLEGIANCE WITHOUT RESERVATION AND FULL
ASSUMPTION OF THE OBLIGATIONS OF AMERICAN CITIZENSHIP ARE NOT AT ALL
INCONSISTENT WITH CULTURAL FEELINGS IMBEDDED IN CHILDHOOD AND YOUTH. 
FN3  AND DURING A PERIOD WHEN NEW STRENGTH OF THE LAND OF ONE'S
NATIVITY WAS FLAMBOYANTLY EXPLOITED BEFORE ITS FULL SINISTER MEANING
HAD BEEN ADEQUATELY REVEALED EVEN TO SOME AMERICANS OF THE OLDEST
LINEAGE, SUCH OLD CULTURAL LOYALTY, IT IS WELL KNOWN, WAS STIMULATED
INTO CONFUSION OF MIND AND SOMETIMES TO EXPRESSIONS OF OFFENSIVE
EXUBERANCE. 

THE DENIAL OF APPLICATION FOR CITIZENSHIP BECAUSE THE JUDICIAL MIND
HAS NOT BEEN SATISFIED THAT THE TEST OF ALLEGIANCE HAS BEEN MET,
PRESENTS A PROBLEM VERY DIFFERENT FROM THE REVOCATION OF THE
NATURALIZATION CERTIFICATE ONCE ADMISSION TO THE COMMUNITY OF AMERICAN
CITIZENSHIP HAS BEEN DECREED.  NO DOUBT THE STATUTORY PROCEDURE FOR
NATURALIZATION (SEC. 334, NATIONALITY ACT OF 1940), AND SEC. 338, WITH
WHICH WE ARE HERE CONCERNED, "WERE DESIGNED TO AFFORD CUMULATIVE
PROTECTION AGAINST FRAUDULENT OR ILLEGAL NATURALIZATION."  UNITED
STATES V. NESS, 245 U.S. 319, 327.  BUT RELAXATION IN THE VIGOR
APPROPRIATE FOR SCRUTINIZING THE INTENSITY OF THE ALLEGIANCE TO THIS
COUNTRY EMBRACED BY AN APPLICANT BEFORE ADMITTING HIM TO CITIZENSHIP IS
NOT TO BE CORRECTED BY MEAGRE STANDARDS FOR DISPROVING SUCH ALLEGIANCE
RETROSPECTIVELY.  NEW RELATIONS AND NEW INTERESTS FLOW, ONCE
CITIZENSHIP HAS BEEN GRANTED.  ALL THAT SHOULD NOT BE UNDONE UNLESS THE
PROOF IS COMPELLING THAT THAT WHICH WAS GRANTED WAS OBTAINED IN
DEFIANCE OF CONGRESSIONAL AUTHORITY.  NON-FULFILMENT OF SPECIFIC
CONDITIONS, LIKE TIME OF RESIDENCE OR THE REQUIRED NUMBER OF SUPPORTING
WITNESSES, ARE EASILY ESTABLISHED, AND WHEN ESTABLISHED LEAVE NO ROOM
FOR DISCRETION BECAUSE CONGRESS HAS LEFT NO AREA OF DISCRETION.  BUT
WHERE THE CLAIM OF "ILLEGALITY" REALLY INVOLVES ISSUES OF BELIEF OR
FRAUD, PROOF IS TREACHEROUS AND OBJECTIVE JUDGMENT, EVEN BY THE MOST
DISCIPLINED MINDS, PRECARIOUS.  THAT IS WHY DENATURALIZATION ON THIS
SCORE CALLS FOR WEIGHTY PROOF, ESPECIALLY WHEN THE PROOF OF A FALSE OR
FRAUDULENT OATH RESTS PREDOMINANTLY NOT UPON CONTEMPORANEOUS EVIDENCE
BUT IS ESTABLISHED BY LATER EXPRESSIONS OF OPINION ARGUMENTATIVELY
PROJECTED, AND OFTEN THROUGH THE DISTORTING AND SELF-DELUDING MEDIUM OF
MEMORY, TO AN EARLIER YEAR WHEN QUALIFICATIONS FOR CITIZENSHIP WERE
CLAIMED, TESTED AND ADJUDICATED. 

IT IS IDLE TO TRY TO CAPTURE AND CONFINE THE SPIRIT OF THIS
REQUIREMENT OF PROOF WITHIN ANY FIXED FORM OF WORDS.  THE EXERCISE OF
OUR JUDGMENT IS OF COURSE NOT AT LARGE.  WE ARE FULLY MINDFUL THAT DUE
OBSERVANCE OF THE LAW GOVERNING THE GRANT OF CITIZENSHIP TO ALIENS
TOUCHES THE VERY WELL-BEING OF THE NATION.  NOTHING THAT WE ARE NOW
DECIDING IS INTENDED TO WEAKEN IN THE SLIGHTEST THE ALERTNESS WITH
WHICH ADMISSION TO AMERICAN CITIZENSHIP SHOULD BE SAFEGUARDED.  BUT WE
MUST BE EQUALLY WATCHFUL THAT CITIZENSHIP ONCE BESTOWED SHOULD NOT BE
IN JEOPARDY NOR IN FEAR OF EXERCISING ITS AMERICAN FREEDOM THROUGH A
TOO EASY FINDING THAT CITIZENSHIP WAS DISLOYALLY ACQUIRED.  WE HAVE
SUFFICIENTLY INDICATED THE CONSIDERATIONS OF POLICY, DERIVED FROM THE
TRADITIONS OF OUR PEOPLE, THAT REQUIRE SOLID PROOF THAT CITIZENSHIP WAS
FALSELY AND FRAUDULENTLY PROCURED.  THESE CONSIDERATIONS MUST GUIDE OUR
JUDICIAL JUDGMENT.  NOR CAN THE DUTY OF EXERCISING A JUDGMENT BE EVADED
BY THE ILLUSORY DEFINITENESS OF ANY FORMULA. 

THE INSUFFICIENCY OF THE EVIDENCE TO SHOW THAT BAUMGARTNER DID NOT
RENOUNCE HIS ALLEGIANCE TO GERMANY IN 1932 NEED NOT BE LABORED. 
WHATEVER GERMAN POLITICAL LEANINGS BAUMGARTNER HAD IN 1932, THEY WERE
TO HITLER AND HITLERISM, CERTAINLY NOT TO THE WEIMAR REPUBLIC.  HITLER
DID NOT COME TO POWER UNTIL AFTER BAUMGARTNER FORSWORE HIS ALLEGIANCE
TO THE THEN GERMAN NATION. 

VIEWS ATTRIBUTED TO BAUMGARTNER AS TO THE SUPERIORITY OF GERMAN
PEOPLE, SCHOOLS, ENGINEERING TECHNIQUES, AND THE VIRTUES OF HITLER,
EXPRESSED IN 1927, WHEN HE BEGAN TO WORK IN KANSAS CITY, ARE THE ONLY
DIRECT EVIDENCE INTRODUCED TO SHOW THAT BEFORE HE WAS NATURALIZED IN
1932, HIS ATTITUDE PRECLUDED HIS TRULY OR HONESTLY TAKING AN OATH OF
ALLEGIANCE TO THE UNITED STATES, ITS CONSTITUTION AND ITS LAWS.  AND
HIS STATEMENT AT THE TRIAL THAT HIS ATTITUDE TOWARD THE PRINCIPLES OF
THE AMERICAN GOVERNMENT WAS THE SAME IN 1932 AS IT WAS AT THE TIME OF
THE TRIAL, IS HARDLY SIGNIFICANT.  FOR BAUMGARTNER PROFESSED LOYALTY AT
THE TRIAL, DENIED OR EXPLAINED THE FEW DISTURBING STATEMENTS ATTRIBUTED
TO HIM BY OTHERS, AND RECONCILED SUSPICIOUS DIARY ENTRIES IN WAYS THAT
DO NOT PRECLUDE THE VALIDITY OF HIS OATH OF ALLEGIANCE.  IN SHORT, THE
WEAKNESS OF THE PROOF AS TO BAUMGARTNER'S STATE OF MIND AT THE TIME HE
TOOK THE OATH OF ALLEGIANCE CAN BE REMOVED, IF AT ALL, ONLY BY A
PRESUMPTION THAT DISQUALIFYING VIEWS EXPRESSED AFTER NATURALIZATION
WERE ACCURATE REPRESENTATIONS OF HIS VIEWS WHEN HE TOOK THE OATH.  THE
LOGICAL VALIDITY OF SUCH A PRESUMPTION IS AT BEST DUBIOUS EVEN WERE THE
SUPPORTING EVIDENCE LESS RHETORICAL AND MORE CONCLUSIVE.  BAUMGARTNER
WAS CERTAINLY NOT SHOWN TO HAVE BEEN A PARTY NAZI, AND THERE IS ONLY
THE STATEMENT OF ONE WITNESS THAT BAUMGARTNER HAD TOLD HIM THAT HE WAS
A MEMBER OF THE BUND, TO HINT EVEN REMOTELY THAT BAUMGARTNER WAS
ASSOCIATED WITH ANY GROUP FOR THE SYSTEMATIC AGITATION OF NAZI VIEWS OR
VIEWS HOSTILE TO THIS GOVERNMENT.  ON THE CONTRARY, BAUMGARTNER'S
DIARY, ON WHICH THE GOVERNMENT MAINLY RELIES, REVEALS THAT WHEN IN 1939
HE ATTENDED A MEETING OF THE GERMAN VOCATIONAL LEAGUE AT WHICH THE NAZI
SALUTE WAS GIVEN, IT WAS APPARENTLY HIS ONLY EXPERIENCE WITH THIS
GROUP, AND HE WENT "SINCE I WANTED TO SEE WHAT SORT OF AN ORGANIZATION
THIS VOCATIONAL LEAGUE WAS." 

AND SO WE CONCLUDE THAT THE EVIDENCE AS TO BAUMGARTNER'S ATTITUDE
AFTER 1932 AFFORDS INSUFFICIENT PROOF THAT IN 1932 HE HAD KNOWING
RESERVATIONS IN FORSWEARING HIS ALLEGIANCE TO THE WEIMAR REPUBLIC AND
EMBRACING ALLEGIANCE TO THIS COUNTRY SO AS TO WARRANT THE INFLICTION OF
THE GRAVE CONSEQUENCES INVOLVED IN MAKING AN ALIEN OUT OF A MAN TEN
YEARS AFTER HE WAS ADMITTED TO CITIZENSHIP.  THE EVIDENCE IN THE RECORD
BEFORE US IS NOT SUFFICIENTLY COMPELLING TO REQUIRE THAT WE PENALIZE A
NATURALIZED CITIZEN FOR THE EXPRESSION OF SILLY OR EVEN SINISTER
SOUNDING VIEWS WHICH NATIVE-BORN CITIZENS UTTER WITH IMPUNITY.  THE
JUDGMENT MUST ACCORDINGLY BE REVERSED AND THE CASE REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

FN1 SECTION 338(A) PROVIDES:  "IT SHALL BE THE DUTY OF THE UNITED
STATES DISTRICT ATTORNEYS FOR THE RESPECTIVE DISTRICTS, UPON AFFIDAVIT
SHOWING GOOD CAUSE THEREFOR, TO INSTITUTE PROCEEDINGS ...  FOR THE
PURPOSE OF REVOKING AND SETTING ASIDE THE ORDER ADMITTING SUCH PERSON
TO CITIZENSHIP AND CANCELING THE CERTIFICATE OF NATURALIZATION ON THE
GROUND OF FRAUD OR ON THE GROUND THAT SUCH ORDER AND CERTIFICATE OF
NATURALIZATION WERE ILLEGALLY PROCURED." 

FN2  THE FOLLOWING ARE SOME EXCERPTS FROM BAUMGARTNER'S DIARY:  "THE
ONLY ONES WHO HAVE ANY IDEAS HERE ARE THE JEWS AND THEIR IDEAS ARE
VILE, MEAN, AND MALICIOUS.  ...  TODAY THE PRESIDENT OF THE UNITED
STATES DELIVERED HIS MESSAGE TO THE NEW CONGRESS.  THE SPEECH WAS A
HORRIBLE MIXTURE OF WAR AGITATION AND LAUGHABLE TALK ABOUT THE FREEDOM
OF PRESS, SPEECH, ETC., WHICH THIS COUNTRY ALLEGEDLY HAS AND WHICH HAS
TO BE PROTECTED WITH GUNS.  ...  WE DRANK A BOTTLE OF PSCHORR BREW
TOGETHER TO THE WELFARE AND THE FUTURE OF GERMANY.  ...  THE JEWISH
AMERICAN-ENGLISH FORTRESS IN THE HEART OF CENTRAL EUROPE HAS FALLEN.  A
TERRIBLE DEFEAT FOR THE ABOVE NAMED POWERS WHO WILL PROBABLY HAVE A
DIFFICULT TIME RECOVERING FROM THIS.  ...  LISTENED TO HITLER'S SPEECH
FROM THE KROLLS OPERA HOUSE ON 15.2.  IT WAS WONDERFUL AS USUAL.  ...
THE WHOLE COUNTRY IS UNDER THE INFLUENCE OF THE INSANE ACTIONS OF THE
GOVERNMENT IN WASHINGTON WHICH HAVE THE CHARACTER OF WILD, UNBRIDLED
DESPOTISM." 

FN3  THE RETENTION OF CULTURAL TIES DESPITE THE CHANGE IN "JURIDICAL
AND POLITICAL" STATUS HAS THUS BEEN PUT BY A DISTINGUISHED HISTORIAN,
GAETANO SALVEMINI, IN SPEAKING OF HIS OWN NATURALIZATION:  "THERE IS IN
THIS COUNTRY A WIDER AREA OF GENEROSITY THAN IN ANY OTHER COUNTRY - AT
LEAST IN EUROPE.  IT IS THIS FEELING THAT ONE IS AT HOME HERE THAT
CONQUERS YOU LITTLE BY LITTLE.  AND ONE FINE DAY YOU FEEL THAT YOU ARE
NO LONGER AN EXILE BUT A CITIZEN IN YOUR OWN COUNTRY.  WHEN I TOOK MY
OATH I FELT THAT REALLY I WAS PERFORMING A GRAND FUNCTION.  I WAS
THROWING AWAY NOT MY INTELLECTUAL AND MORAL BUT MY JURISTIC PAST.  I
THREW IT AWAY WITHOUT ANY REGRET.  THE ETHIOPIAN WAR, THE RAPE OF
ALBANIA, THE SPANISH CRIME, AND THIS LAST IDIOTIC CRIME, HAD REALLY
BROKEN MY CONNECTION WITH SOVEREIGNS, POTENTATES, AND ALL THOSE UGLY
THINGS WHICH ARE ENUMERATED IN THE FORMULA OF THE OATH.  IT IS A
WONDERFUL FORMULA.  YOUR PLEDGES ARE ONLY JURIDICAL AND POLITICAL.  YOU
ARE ASKED TO SEVER YOUR CONNECTIONS WITH THE GOVERNMENT OF YOUR FORMER
COUNTRY, NOT WITH THE PEOPLE AND THE CIVILIZATION OF YOUR FORMER
COUNTRY.  AND YOU ARE ASKED TO GIVE ALLEGIANCE TO THE CONSTITUTION OF
YOUR ADOPTED COUNTRY, THAT IS, TO AN IDEAL OF LIFE."  RADCLIFFE
QUARTERLY, AUGUST 1941, PP. 8-9. 

MR. JUSTICE MURPHY: 

THE ISSUE IN THIS CASE IS CLEAR.  THE GOVERNMENT HAS SOUGHT TO SET
ASIDE PETITIONER'S NATURALIZATION CERTIFICATE BECAUSE OF ALLEGED
FRAUDULENT AND ILLEGAL PROCUREMENT.  IT WAS THUS INCUMBENT ON THE
GOVERNMENT TO MEET THE STANDARD OF PROOF LAID DOWN BY THIS COURT IN
SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 125, 158, BY PRESENTING
EVIDENCE OF A "CLEAR, UNEQUIVOCAL, AND CONVINCING" CHARACTER WHICH DID
NOT LEAVE "THE ISSUE IN DOUBT" AS TO WHETHER PETITIONER FRAUDULENTLY OR
ILLEGALLY PROCURED HIS CERTIFICATE. 

IT IS TRUE THAT IN THE SCHNEIDERMAN CASE WE WERE MET WITH THE ISSUE
AS TO WHETHER THE PETITIONER IN THAT CASE HAD ILLEGALLY PROCURED HIS
NATURALIZATION CERTIFICATE IN THAT HE HAD NOT, AT THE TIME OF HIS
NATURALIZATION AND FIVE YEARS PRIOR THERETO, BEHAVED AS A PERSON
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION, AND WELL DISPOSED TO
THE GOOD ORDER AND HAPPINESS OF THE UNITED STATES.  WE EXPRESSLY DID
NOT PASS UPON THE CHARGE OF FRAUD IN OBTAINING THE CERTIFICATE, WHICH
IS THE PRIMARY CHARGE PRESENT IN THIS PROCEEDING.  BUT THE REQUIREMENT
THAT THE GOVERNMENT PROVE ITS CASE BY "CLEAR, UNEQUIVOCAL, AND
CONVINCING" EVIDENCE TRANSCENDS THE PARTICULAR GROUND UPON WHICH THE
GOVERNMENT SEEKS TO SET ASIDE THE NATURALIZATION CERTIFICATE.  THE
DECISION IN THE SCHNEIDERMAN CASE WAS NOT MERELY A DECISION OF AN
ISOLATED CASE.  IT WAS A FORMULATION BY A MAJORITY OF THE COURT OF A
RULE OF LAW GOVERNING ALL DENATURALIZATION PROCEEDINGS.  FN1  THAT RULE
OF LAW IS EQUALLY APPLICABLE WHETHER THE CITIZEN AGAINST WHOM THE
PROCEEDING IS BROUGHT IS A COMMUNIST, A NAZI OR A FOLLOWER OF ANY OTHER
POLITICAL FAITH.  THIS REQUIREMENT OF PROOF WAS RECOGNIZED BY THE COURT
BELOW, 138 F.2D 29, 34, AND BY BOTH THE GOVERNMENT AND THE PETITIONER
BEFORE US. 

IN THE INSTANT CASE THE FAILURE OF THE GOVERNMENT TO PRESENT EVIDENCE
OF A "CLEAR, UNEQUIVOCAL, AND CONVINCING" NATURE THAT PETITIONER
FRAUDULENTLY OR ILLEGALLY PROCURED HIS NATURALIZATION CERTIFICATE IN
1932 IS PATENT.  WITH ONE UNIMPORTANT EXCEPTION, THE GOVERNMENT PROVED
ONLY THAT PETITIONER DISPLAYED CERTAIN NAZI SYMPATHIES AND WAS CRITICAL
OF THE UNITED STATES SEVERAL YEARS AFTER 1932.  THERE WAS NO COMPETENT
EVIDENCE THAT HE ENTERTAINED THESE STRONG BELIEFS OR THAT HE HAD ANY
MENTAL RESERVATIONS IN FORSWEARING HIS ALLEGIANCE TO THE WEIMAR
REPUBLIC IN 1932.    AMERICAN CITIZENSHIP IS NOT A RIGHT GRANTED ON A
CONDITION SUBSEQUENT THAT THE NATURALIZED CITIZEN REFRAIN IN THE FUTURE
FROM UTTERING ANY REMARK OR ADOPTING AN ATTITUDE FAVORABLE TO HIS
ORIGINAL HOMELAND OR THOSE THERE IN POWER, NO MATTER HOW DISTASTEFUL
SUCH CONDUCT MAY BE TO MOST OF US.  HE IS NOT REQUIRED TO IMPRISON
HIMSELF IN AN INTELLECTUAL OR SPIRITUAL STRAIT-JACKET; NOR IS HE
OBLIGED TO RETAIN A STATIC MENTAL ATTITUDE.  MOREOVER, HE DOES NOT LOSE
THE PRECIOUS RIGHT OF CITIZENSHIP BECAUSE HE SUBSEQUENTLY DARES TO
CRITICIZE HIS ADOPTED GOVERNMENT IN VITUPERATIVE OR DEFAMATORY TERMS. 
IT OBVIOUSLY IS MORE DIFFICULT TO CONFORM TO THE STANDARD SET FORTH IN
THE SCHNEIDERMAN CASE BY MERE PROOF OF A STATE OF MIND SUBSEQUENT TO
NATURALIZATION THAN BY PROOF OF FACTS EXISTING PRIOR TO OR AT THE TIME
OF NATURALIZATION.  BUT THAT DOES NOT EXCUSE A FAILURE TO MEET THAT
STANDARD.  THE NATURALIZED CITIZEN HAS AS MUCH RIGHT AS THE NATURAL
BORN CITIZEN TO EXERCISE THE CHERISHED FREEDOMS OF SPEECH, PRESS AND
RELIGION, AND WITHOUT "CLEAR, UNEQUIVOCAL, AND CONVINCING" PROOF THAT
HE DID NOT BEAR OR SWEAR TRUE ALLEGIANCE TO THE UNITED STATES AT THE
TIME OF NATURALIZATION HE CANNOT BE DENATURALIZED.  PROPER REALIZATION
OF THAT PRINCIPLE MAKES CLEAR THE ERROR OF SETTING ASIDE PETITIONER'S
NATURALIZATION CERTIFICATE ON THE BASIS OF THE FACTS ADDUCED IN THIS
PROCEEDING. 

FN1 THE DENATURALIZATION PROCEEDING IN THE SCHNEIDERMAN CASE WAS
BROUGHT UNDER THE PROVISIONS OF SEC. 15 OF THE ACT OF JUNE 29, 1906, 34
STAT. 596, 8 U.S.C. SEC. 405.  PRACTICALLY IDENTICAL PROVISIONS ARE
CONTAINED IN SEC. 338 OF THE NATIONALITY ACT OF 1940, 54 STAT. 1137,
1158, 8 U.S.C. SEC. 738, UNDER WHICH THE PROCEEDING IN THE INSTANT CASE
WAS INSTITUTED.  SEE SCHNEIDERMAN V. UNITED STATES, 320 U.S. AT 121,
NOTE 1. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN
IN THIS OPINION. 
..END :

















HARTZEL V. UNITED STATES, 322 U.S. 680 


NO. 531.  ARGUED APRIL 25, 1944.  - DECIDED JUNE 12, 1944.  - 138 F.2D
169, REVERSED. 


EVIDENCE IN THIS CASE HELD INSUFFICIENT TO SUSTAIN A CONVICTION OF
VIOLATION OF SEC. 3 OF THE ESPIONAGE ACT OF 1917, UPON AN INDICTMENT
CHARGING THAT THE DEFENDANT, IN TIME OF WAR, WILLFULLY ATTEMPTED TO
CAUSE INSUBORDINATION, DISLOYALTY, MUTINY AND REFUSAL OF DUTY IN THE
ARMED FORCES AND WILLFULLY OBSTRUCTED THE RECRUITING AND ENLISTMENT
SERVICE OF THE UNITED STATES.  P. 688. 

HARTZEL V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 320 U.S. 734, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR VIOLATION OF THE ESPIONAGE ACT OF 1917. 

MR. JUSTICE MURPHY ANNOUNCED THE CONCLUSION AND JUDGMENT OF THE
COURT. 

FOR THE FIRST TIME DURING THE COURSE OF THE PRESENT WAR WE ARE
CONFRONTED WITH A PROSECUTION UNDER THE ESPIONAGE ACT OF 1917.  FN1
THE NARROW ISSUE IS WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT
THE JURY'S DETERMINATION THAT PETITIONER VIOLATED THE ACT IN THAT, IN
TIME OF WAR, HE WILLFULLY ATTEMPTED TO CAUSE INSUBORDINATION,
DISLOYALTY, MUTINY AND REFUSAL OF DUTY IN THE ARMED FORCES AND
WILLFULLY OBSTRUCTED THE RECRUITING AND ENLISTMENT SERVICE OF THE
UNITED STATES. 

PETITIONER AND TWO OTHERS WERE CHARGED IN A SEVEN-COUNT INDICTMENT
WITH VIOLATIONS OF THE SECOND AND THIRD CLAUSES  FN2  OF SEC. 3 OF THE
ACT, TOGETHER WITH A VIOLATION OF SEC. 4.  IT WAS ALLEGED THAT IN TIME
OF WAR THEY PUBLISHED AND DISSEMINATED THREE PAMPHLETS TO NUMEROUS
PERSONS AND ORGANIZATIONS, AMONG WHOM WERE INDIVIDUALS AVAILABLE AND
ELIGIBLE FOR RECRUITMENT AND ENLISTMENT IN THE MILITARY AND NAVAL
FORCES OF THE UNITED STATES AS WELL AS INDIVIDUALS ALREADY MEMBERS OF
THE ARMED FORCES.  COUNTS 1, 3 AND 5 CHARGED THAT BY THESE ACTIONS THEY
WILLFULLY OBSTRUCTED THE RECRUITING AND ENLISTMENT SERVICE OF THE
UNITED STATES IN VIOLATION OF THE THIRD CLAUSE OF SEC. 3.  COUNTS 2, 4
AND 6 CHARGED THAT THESE ACTIVITIES CONSTITUTED A WILLFUL ATTEMPT TO
CAUSE INSUBORDINATION, DISLOYALTY, MUTINY AND REFUSAL OF DUTY IN THE
MILITARY AND NAVAL FORCES OF THE UNITED STATES IN VIOLATION OF THE
SECOND CLAUSE OF SEC. 3.  COUNT 7 CHARGED A CONSPIRACY TO VIOLATE SEC.
3, IN VIOLATION OF SEC. 4 OF THE ACT.  PETITIONER WAS FOUND GUILTY ON
ALL COUNTS AND WAS SENTENCED GENERALLY TO FIVE YEARS IN PRISON.  THE
COURT BELOW AFFIRMED HIS CONVICTION ON APPEAL.  FN3  138 F.2D 169.  THE
IMPORTANCE OF THE ISSUES INVOLVED LED US TO GRANT CERTIORARI.  320 U.S.
734. 

PETITIONER, AN AMERICAN CITIZEN, WAS BORN 52 YEARS AGO IN
PENNSYLVANIA.  HIS ANCESTORS, OF SCOTCH, IRISH AND GERMAN DESCENT, CAME
TO THIS COUNTRY OVER 120 YEARS AGO.  HE ENLISTED IN THE ARMED FORCES IN
1917 AND SERVED OVERSEAS.  AFTER HIS HONORABLE DISCHARGE IN 1919, HE
WAS EMPLOYED IN THE CITY HEALTH DEPARTMENT AT AKRON, OHIO, WHILE
EARNING A DEGREE IN SCIENCE AT AKRON UNIVERSITY.  HE THEN TOOK COURSES
IN ECONOMICS AND POLITICAL ECONOMY AT THE UNIVERSITY OF CHICAGO AND
BECAME A FINANCIAL ANALYST AND STATISTICIAN FOR VARIOUS BANKS,
INVESTMENT BROKERS AND INVESTMENT COMPANIES IN CHICAGO.  AFTER 1938 HE
WAS EMPLOYED AS AN AUDITOR AND STATISTICIAN, FIRST BY THE STATE OF
ILLINOIS AND THEN BY THE FEDERAL GOVERNMENT IN CORPORATIONS IN DETROIT
AND CHICAGO PRODUCING MATERIAL FOR THE UNITED STATES ARMY AIR CORPS. 
DURING ALL THIS TIME HE HAD CONSTANTLY ENGAGED IN ECONOMIC RESEARCH ON
HIS OWN BEHALF AND SEVERAL ARTICLES BY HIM WERE PUBLISHED IN REPUTABLE
BUSINESS AND FINANCIAL PERIODICALS.  THERE WAS NO EVIDENCE OF HIS
HAVING BEEN ASSOCIATED IN ANY WAY WITH ANY FOREIGN OR SUBVERSIVE
ORGANIZATION. 

PRIOR TO THE ENTRY OF THE UNITED STATES INTO THE PRESENT WAR,
PETITIONER WROTE SEVERAL SHORT ARTICLES CONTAINING SCURRILOUS AND
VITRIOLIC ATTACKS ON THE ENGLISH, THE JEWS AND THE PRESIDENT OF THE
UNITED STATES.  AMERICANS WERE URGED NOT TO ALLY THEMSELVES WITH THE
ENGLISH.  ONLY A GERMAN VICTORY, IT WAS SAID, WOULD BRING "INCREASED
STABILITY AND SAFETY FOR THE WEST."  PETITIONER HAD CERTAIN OF THESE
ARTICLES MIMEOGRAPHED BY VARIOUS INDIVIDUALS IN CHICAGO, INCLUDING ONE
ELMER SOLLER, WHO WAS LATER INDICTED AS A CO-DEFENDANT WITH
PETITIONER.  SEVERAL HUNDRED COPIES OF THE MIMEOGRAPHED ARTICLES WERE
MAILED BY PETITIONER TO INDIVIDUALS AND ORGANIZATIONS APPEARING ON HIS
MAILING LIST. 

PETITIONER THEN WROTE THREE ARTICLES IN 1942 WHICH FORMED THE BASIS
FOR HIS CONVICTION UNDER THE ESPIONAGE ACT OF 1917.  THESE ARTICLES
REPEATED THE SAME THEMES AND WERE MARKED BY THE SAME CALUMNY AND
INVECTIVE; THEY ARE SET OUT AT LENGTH IN THE OPINION OF THE COURT
BELOW, 138 F.2D AT 170-172, AND NEED NOT BE REPEATED HERE.  IN
SUBSTANCE, THEY DEPICT THE WAR AS A GROSS BETRAYAL OF AMERICA, DENOUNCE
OUR ENGLISH ALLIES AND THE JEWS AND ASSAIL IN RECKLESS TERMS THE
INTEGRITY AND PATRIOTISM OF THE PRESIDENT OF THE UNITED STATES.  THEY
CALL FOR AN ABANDONMENT OF OUR ALLIES AND A CONVERSION OF THE WAR INTO
A RACIAL CONFLICT.  THEY FURTHER URGE AN "INTERNAL WAR OF RACE AGAINST
RACE" AND "OCCUPATION (OF AMERICA) BY FOREIGN TROOPS UNTIL WE ARE ABLE
TO STAND ALONE." 

AFTER WRITING THESE ARTICLES, PETITIONER HAD THEM MIMEOGRAPHED BY HIS
CO-DEFENDANT SOLLER AND MAILED ABOUT SIX HUNDRED COPIES OF THEM,
ANONYMOUSLY, TO PERSONS AND ORGANIZATIONS ON HIS MAILING LIST.  IN
ORDER TO AVOID DETECTION, HE DEPOSITED THE ENVELOPES IN SEVERAL
DIFFERENT MAILBOXES AND ENDEAVORED TO LEAVE NO FINGERPRINTS.  FN4  HE
HAD COMPILED THIS MAILING LIST FROM SEVERAL SOURCES: (1) THE WORLD
ALMANAC, WHICH GAVE HIM THE NAMES OF VARIOUS PROMINENT PEOPLE,
ASSOCIATIONS, FRATERNITIES, SORORITIES, ETC.; (2) A GOVERNMENT
PUBLICATION CONTAINING A LIST OF LABOR UNIONS; (3) DAILY NEWSPAPERS
WHICH MENTIONED THE NAMES OF PEOPLE ACTIVELY ENGAGED IN THE AMERICA
FIRST COMMITTEE; AND (4) TELEPHONE DIRECTORIES AT THE PUBLIC LIBRARY
WHICH GAVE HIM THE NAMES OF VARIOUS STATE AND DISTRICT COMMANDERS OF
THE AMERICAN LEGION.  INCLUDED IN HIS LIST WERE SUCH PERSONS AS UNITED
STATES SENATORS, REPRESENTATIVES, BISHOPS AND OTHER CHURCH OFFICIALS;
SUCH ORGANIZATIONS AS THE DAUGHTERS OF THE AMERICAN REVOLUTION AND WE
THE MOTHERS MOBILIZE WERE ALSO INCLUDED. 

THE GOVERNMENT PROVED THAT TWO OF THESE PAMPHLETS WERE MAILED TO AND
READ BY THE COMMANDING GENERAL OF THE UNITED STATES ARMY AIR FORCES AND
A COLONEL ATTACHED TO THE GENERAL STAFF.  ALL THREE PAMPHLETS WERE
MAILED TO THE UNITED STATES INFANTRY ASSOCIATION, WHICH PUBLISHES THE
INFANTRY JOURNAL, A SERVICE PUBLICATION, AND WERE READ AT ITS
HEADQUARTERS BY TWO ARMY OFFICERS IN THE COURSE OF THEIR DUTIES.  THE
EVIDENCE ALSO SHOWED THAT ONE OR MORE OF THE PAMPHLETS WERE RECEIVED IN
THE MAIL BY THE PRESIDENT OF NORTHWESTERN UNIVERSITY, THE AMERICAN
NEWSPAPER PUBLISHERS ASSOCIATION, THE KIWANIS INTERNATIONAL, THE LIONS
INTERNATIONAL, THE AIR LINE PILOTS ASSOCIATION AND THE AMERICAN LEGION,
DEPARTMENT OF ILLINOIS.  INDIVIDUALS REGISTERED UNDER THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940 AND EMPLOYED BY THESE VARIOUS
ORGANIZATIONS READ THE PAMPHLETS IN THE ORDINARY COURSE OF THEIR WORK,
INCLUDING ONE 20-YEAR-OLD CLERK WHOSE DUTY IT WAS TO OPEN THE INCOMING
MAIL AT THE OFFICE OF THE LIONS INTERNATIONAL.  IN ADDITION, ENVELOPES
ADDRESSED TO AT LEAST EIGHTEEN HIGH-RANKING ARMY OFFICERS WERE FOUND
SECRETED UNDER A BATHTUB IN PETITIONER'S HOME, TOGETHER WITH SEVERAL OF
THE PAMPHLETS. 

SHORTLY AFTER BEING TAKEN INTO CUSTODY, PETITIONER SIGNED A STATEMENT
IN WHICH HE CLAIMED THAT "THE PRIME MOTIVE WHICH IMPELLED ME IN WRITING
AND DISTRIBUTING THE ARTICLES DISCUSSED ABOVE, WAS THE HOPE THAT THEY
MIGHT TEND TO CREATE SENTIMENT AGAINST WAR AMONGST THE WHITE RACES AND
IN DIVERTING THE WAR FROM THEM, TO UNITE THE WHITE RACES AGAINST WHAT I
CONSIDER TO BE THE MORE DANGEROUS ENEMIES, THE YELLOW RACES."  AT THE
TRIAL HE TESTIFIED THAT "I THOUGHT THERE WAS A TREND TOWARD COMMUNISM,
AND I THOUGHT IT WAS QUITE A DANGEROUS POSITION BECAUSE OF WARFARE
BETWEEN THE WHITE RACES, IT WOULD BE THE CAUSE OF WAR BETWEEN THE WHITE
AND YELLOW RACES, AND RATHER THAN HAVE IT BEAT INTO US, WE MIGHT AS
WELL FACE THE FACTS AND KNOW WHAT WE WERE FACING, A CERTAIN GROUP OF
COMMUNISTS DISCUSSING METHODS, THEIR VIEWPOINTS, I WANTED TO HELP
MINIMIZE THAT SO WE COULD AGAIN HAVE PUBLIC STANDPOINT ESTABLISHED IN
THIS COUNTRY."  HE SAID HE THOUGHT HIS ARTICLES MIGHT IMPROVE THE
MORALE OF PERSONS AVAILABLE AND ELIGIBLE FOR RECRUITING AND ENLISTMENT
IN THE ARMED FORCES, THOUGH HE RETRACTED THIS STATEMENT ON CROSS
EXAMINATION.  HIS EFFORTS, HE THOUGHT, "WERE POLITICAL IN CHARACTER"
AND "THE EFFECT ON THE TROOPS OF SAYING THAT AMERICA WAS BETRAYED WOULD
BE FOR THEM TO CONSIDER WHETHER IT WAS OR NOT AND, IF SO, TO FIGHT FOR
AMERICANS." 

ON THE BASIS OF THESE FACTS, PETITIONER WAS FOUND GUILTY OF VIOLATING
THE SECOND AND THIRD CLAUSES OF SEC. 3 OF THE ACT.  THESE CLAUSES ARE
DIRECTED AT THOSE WHO, IN TIME OF WAR, "WILLFULLY CAUSE OR ATTEMPT TO
CAUSE INSUBORDINATION, DISLOYALTY, MUTINY, OR REFUSAL OF DUTY, IN THE
MILITARY OR NAVAL FORCES OF THE UNITED STATES," OR WHO, IN TIME OF WAR,
"WILLFULLY OBSTRUCT THE RECRUITING OR ENLISTMENT SERVICE OF THE UNITED
STATES, TO THE INJURY OF THE SERVICE OF THE UNITED STATES."  THUS THESE
CLAUSES PUNISH THE MAKING AND DISSEMINATION OF STATEMENTS AND WRITINGS
WHICH ARE INTENDED TO HAVE THE EVIL EFFECTS SET FORTH BY CONGRESS.  NO
QUESTION IS HERE RAISED AS TO THE CONSTITUTIONALITY OF THESE PROVISIONS
OR AS TO THE SUFFICIENCY OF THE INDICTMENT RETURNED THEREUNDER.  BUT
SUCH LEGISLATION, BEING PENAL IN NATURE AND RESTRICTING THE RIGHT TO
SPEAK AND WRITE FREELY, MUST BE CONSTRUED NARROWLY AND "MUST BE TAKEN
TO USE ITS WORDS IN A STRICT AND ACCURATE SENSE."  MR. JUSTICE HOLMES,
DISSENTING IN ABRAMS V. UNITED STATES, 250 U.S. 616 AT 627. 

THE LANGUAGE OF THE SECOND AND THIRD CLAUSES OF SEC. 3 MAKES CLEAR
THAT TWO MAJOR ELEMENTS ARE NECESSARY TO CONSTITUTE AN OFFENSE UNDER
THESE CLAUSES.  THE FIRST ELEMENT IS A SUBJECTIVE ONE, CONSISTING OF A
SPECIFIC INTENT OR EVIL PURPOSE AT THE TIME OF THE ALLEGED OVERT ACTS
TO CAUSE INSUBORDINATION OR DISLOYALTY IN THE ARMED FORCES OR TO
OBSTRUCT THE RECRUITING AND ENLISTMENT SERVICE.  THIS REQUIREMENT OF A
SPECIFIC INTENT SPRINGS FROM THE STATUTORY USE OF THE WORD
"WILLFULLY."  THAT WORD, WHEN VIEWED IN THE CONTEXT OF A HIGHLY PENAL
STATUTE RESTRICTING FREEDOM OF EXPRESSION, MUST BE TAKEN TO MEAN
DELIBERATELY AND WITH A SPECIFIC PURPOSE TO DO THE ACTS PROSCRIBED BY
CONGRESS.  CF. UNITED STATES V. MURDOCK, 290 U.S. 389 AT 394; UNITED
STATES V. ILLINOIS CENTRAL R. CO., 303 U.S. 239 AT 242; BROWDER V.
UNITED STATES, 312 U.S. 335 AT 341; SPIES V. UNITED STATES, 317 U.S.
492 AT 497.  THE SECOND ELEMENT IS AN OBJECTIVE ONE, CONSISTING OF A
CLEAR AND PRESENT DANGER THAT THE ACTIVITIES IN QUESTION WILL BRING
ABOUT THE SUBSTANTIVE EVILS WHICH CONGRESS HAS A RIGHT TO PREVENT. 
SCHENCK V. UNITED STATES, 249 U.S. 47.  BOTH ELEMENTS MUST BE PROVED BY
THE GOVERNMENT BEYOND A REASONABLE DOUBT. 

THE REQUISITE SPECIFIC INTENT IN SUCH A CASE AS THIS MAY BE PROVED
NOT ONLY BY THE LANGUAGE ACTUALLY USED IN THE STATEMENTS OR WRITINGS
THEMSELVES BUT ALSO BY THE CIRCUMSTANCES SURROUNDING THEIR PREPARATION
AND DISSEMINATION.  BUT, SO FAR AS THE RECORD IN THIS CASE IS
CONCERNED, NEITHER OF THESE SOURCES IS PRODUCTIVE OF EVIDENCE FROM
WHICH A JURY COULD PROPERLY FIND BEYOND A REASONABLE DOUBT THAT
PETITIONER HAD SUCH AN INTENT AT THE TIME HE COMPOSED AND MAILED THE
THREE PAMPHLETS.  FOR THAT REASON ALONE THE CONVICTION MUST BE
REVERSED. 

THERE IS NOTHING ON THE FACE OF THE THREE PAMPHLETS IN QUESTION TO
INDICATE THAT PETITIONER INTENDED SPECIFICALLY TO CAUSE
INSUBORDINATION, DISLOYALTY, MUTINY OR REFUSAL OF DUTY IN THE MILITARY
FORCES OR TO OBSTRUCT THE RECRUITING AND ENLISTMENT SERVICE.  NO DIRECT
OR AFFIRMATIVE APPEALS ARE MADE TO THAT EFFECT AND NO MENTION IS MADE
OF MILITARY PERSONNEL OR OF PERSONS REGISTERED UNDER THE SELECTIVE
TRAINING AND SERVICE ACT.  THEY CONTAIN, INSTEAD, VICIOUS AND
UNREASONING ATTACKS ON ONE OF OUR MILITARY ALLIES, FLAGRANT APPEALS TO
FALSE AND SINISTER RACIAL THEORIES AND GROSS LIBELS OF THE PRESIDENT. 
FEW IDEAS ARE MORE ODIOUS TO THE MAJORITY OF THE AMERICAN PEOPLE OR
MORE DESTRUCTIVE OF NATIONAL UNITY IN TIME OF WAR.  BUT WHILE SUCH
INIQUITOUS DOCTRINES MAY BE USED UNDER CERTAIN CIRCUMSTANCES AS
VEHICLES FOR THE PURPOSEFUL UNDERMINING OF THE MORALE AND LOYALTY OF
THE ARMED FORCES AND THOSE PERSONS OF DRAFT AGE, THEY CANNOT BY
THEMSELVES BE TAKEN AS PROOF BEYOND A REASONABLE DOUBT THAT PETITIONER
HAD THE NARROW INTENT REQUISITE TO A VIOLATION OF THIS STATUTE. 

NOR DO THE CIRCUMSTANCES OF THE DISTRIBUTION OF THE THREE PAMPHLETS,
SUPPLEMENTED BY PETITIONER'S PRE-TRIAL STATEMENT, HIS TESTIMONY AND THE
SIMILAR ARTICLES WRITTEN AND DISSEMINATED BY HIM BEFORE THE WAR, SUPPLY
SUFFICIENT EVIDENCE OF THE NECESSARY INTENT.  THERE WAS NO EVIDENCE
THAT PETITIONER INTENDED TO INFLUENCE MILITARY PERSONNEL OR INDIVIDUALS
OF DRAFT AGE IN THE MANNER FORBIDDEN BY THE STATUTE IN COMPOSING HIS
MAILING LIST OR IN SENDING HIS PAMPHLETS TO THOSE LISTED THEREIN.  HIS
PURPOSE, RATHER, APPEARS TO HAVE BEEN TO OBTAIN THE NAMES OF PROMINENT
INDIVIDUALS AND ORGANIZATIONS AND TO PROPAGATE HIS IDEAS AMONG THEM. 
THE FACT THAT SOME OF THESE INDIVIDUALS AND SOME OF THE REPRESENTATIVES
OF THESE ORGANIZATIONS WERE OF DRAFT AGE WAS NOT SHOWN TO HAVE BEEN
DOMINANT, OR EVEN PRESENT, IN PETITIONER'S MIND OR TO HAVE MOTIVATED
HIM IN ANY DEGREE.  AND THE FACT THAT HE MAILED HIS PAMPHLETS TO AT
LEAST FOUR HIGH-RANKING ARMY OFFICERS AND ADDRESSED ENVELOPES TO AT
LEAST EIGHTEEN OTHERS IS NOT EVIDENCE FROM WHICH THE JURY COULD INFER
BEYOND A REASONABLE DOUBT THAT HE INTENDED TO CAUSE INSUBORDINATION,
DISLOYALTY, MUTINY OR REFUSAL OF DUTY AMONG THEM.  THEIR INCLUSION IN A
MAILING LIST OF SIX HUNDRED PERSONS AND ORGANIZATIONS IS QUITE
CONSISTENT WITH A MERE INTENT TO INFLUENCE PUBLIC OPINION AND TO
CIRCULATE MALICIOUS POLITICAL PROPAGANDA AMONG OUTSTANDING PERSONAGES,
WHETHER THEY BE IN THE ARMED FORCES OR NOT.    HIS PREWAR WRITINGS, IF
THEY SHOULD BE TAKEN INTO ACCOUNT AT ALL, ARE NO MORE INDICATIVE OF THE
NECESSARY INTENT THAN ARE THE THREE PAMPHLETS IN ISSUE.  HIS STATEMENTS
AND TESTIMONY CONCERNING HIS MOTIVE IN PREPARING AND DISTRIBUTING THE
THREE PAMPHLETS ARE LIKEWISE INDECISIVE.  PROOF THAT HE INTENDED, IN
HIS WORDS, TO "CREATE SENTIMENT AGAINST WAR AMONGST THE WHITE RACES"
AND TO "UNITE THE WHITE RACES AGAINST WHAT I CONSIDER TO BE THE MORE
DANGEROUS ENEMIES, THE YELLOW RACES" DOES NOT SATISFY THE BURDEN WHICH
RESTS ON THE GOVERNMENT TO PROVE BEYOND A REASONABLE DOUBT THAT
PETITIONER HAD THE PURPOSE OR INTENT TO DO WHAT IS OUTLAWED BY SEC. 3
OF THIS ACT.  THOUGHTLESSNESS, CARELESSNESS AND EVEN RECKLESSNESS ARE
NOT SUBSTITUTES FOR THE MORE SPECIFIC STATE OF MIND WHICH THE STATUTE
MAKES AN ESSENTIAL INGREDIENT OF THE CRIME. 

WE ARE NOT UNMINDFUL OF THE FACT THAT THE UNITED STATES IS NOW
ENGAGED IN A TOTAL WAR FOR NATIONAL SURVIVAL AND THAT TOTAL WAR OF THE
MODERN VARIETY CANNOT BE WON BY A DOUBTFUL, DISUNITED NATION IN WHICH
ANY APPRECIABLE SECTOR IS DISLOYAL.  FOR THAT REASON OUR ENEMIES HAVE
DEVELOPED PSYCHOLOGICAL WARFARE TO A HIGH DEGREE IN AN EFFORT TO CAUSE
UNREST AND DISLOYALTY.  MUCH OF THIS TYPE OF WARFARE TAKES THE FORM OF
INSIDIOUS PROPAGANDA IN THE MANNER AND TENOR DISPLAYED BY PETITIONER'S
THREE PAMPHLETS.  CRUDE APPEALS TO OVERTHROW THE GOVERNMENT OR TO
DISCARD OUR ARMS IN OPEN MUTINY ARE SELDOM MADE.  EMPHASIS IS LAID,
RATHER, ON SUCH MATTERS AS THE FUTILITY OF OUR WAR AIMS, THE VICES OF
OUR ALLIES AND THE INADEQUACY OF OUR LEADERSHIP.  BUT THE MERE FACT
THAT SUCH IDEAS ARE ENUNCIATED BY A CITIZEN IS NOT ENOUGH BY ITSELF TO
WARRANT A FINDING OF A CRIMINAL INTENT TO VIOLATE SEC. 3 OF THE
ESPIONAGE ACT.  UNLESS THERE IS SUFFICIENT EVIDENCE FROM WHICH A JURY
COULD INFER BEYOND A REASONABLE DOUBT THAT HE INTENDED TO BRING ABOUT
THE SPECIFIC CONSEQUENCES PROHIBITED BY THE ACT, AN AMERICAN CITIZEN
HAS THE RIGHT TO DISCUSS THESE MATTERS EITHER BY TEMPERATE REASONING OR
BY IMMODERATE AND VICIOUS INVECTIVE WITHOUT RUNNING AFOUL OF THE
ESPIONAGE ACT OF 1917.  SUCH EVIDENCE WAS NOT PRESENT IN THIS CASE. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED. 

FN1  ESPIONAGE ACT OF JUNE 15, 1917, C. 30, 40 STAT. 217, 50 U.S.C.
SEC. 31 ET SEQ. 

FN2  THE SECOND AND THIRD CLAUSES OF SEC. 3 OF THE ACT PROVIDE AS
FOLLOWS:  "WHOEVER, WHEN THE UNITED STATES IS AT WAR,  ...  SHALL
WILLFULLY CAUSE OR ATTEMPT TO CAUSE INSUBORDINATION, DISLOYALTY,
MUTINY, OR REFUSAL OF DUTY, IN THE MILITARY OR NAVAL FORCES OF THE
UNITED STATES, OR SHALL WILLFULLY OBSTRUCT THE RECRUITING OR ENLISTMENT
SERVICE OF THE UNITED STATES, TO THE INJURY OF THE SERVICE OF THE
UNITED STATES, SHALL BE PUNISHED BY A FINE OF NOT MORE THAN $10,000 OR
IMPRISONMENT FOR NOT MORE THAN TWENTY YEARS, OR BOTH."  40 STAT. 217,
219, 41 STAT. 1359, 50 U.S.C. SEC. 33. 

FN3  PETITIONER'S CO-DEFENDANTS - MECARTNEY, AN ATTORNEY, AND SOLLER,
THE MIMEOGRAPHER - WERE FOUND GUILTY ON COUNTS 5, 6 AND 7.  BUT THE
TRIAL JUDGE SET ASIDE MECARTNEY'S CONVICTION ON A MOTION FOR A NEW
TRIAL ON THE GROUND THAT THERE WAS NO EVIDENCE THAT HE HAD ANY ACTIVE
PART IN THE DISTRIBUTION OF THE PAMPHLETS PRODUCED BY PETITIONER. 
SOLLER'S CONVICTION WAS SET ASIDE BY THE COURT BELOW ON THE GROUND THAT
THERE WAS NO PROOF THAT HE KNEW WHAT USE PETITIONER MADE OF THE
PAMPHLETS.  MECARTNEY AND SOLLER WERE THE ONLY CO-CONSPIRATORS OF
PETITIONER NAMED IN THE INDICTMENT AND THE SETTING ASIDE OF THEIR
CONVICTIONS MAKES IT IMPOSSIBLE TO SUSTAIN PETITIONER'S CONVICTION UPON
THE BASIS OF COUNT 7, THE CONSPIRACY COUNT. 

FN4  PETITIONER TESTIFIED THAT "I SENT THE DOCUMENTS OUT ANONYMOUSLY
BECAUSE I ALMOST LOST MY JOB SEVERAL TIMES AND I KNEW I HAD TO BE
CAREFUL AND ALSO BECAUSE OF A GREAT DEAL OF ESPIONAGE IN THE
COMMUNITY.  I DID NOT SIGN MY NAME TO THE DOCUMENTS I SENT OUT FOR THE
SAME REASON.  ...  I TOOK THEM OUT AND DROPPED THEM IN SEVERAL BOXES. 
I DID THAT BECAUSE WITH SUCH A LARGE QUANTITY OF THEM, I THOUGHT
SOMEONE MIGHT THROW THEM OUT.  I MAILED THEM ALL AT ONCE, BUT I DROPPED
ONE HUNDRED IN ONE BOX AND ANOTHER HUNDRED IN EACH OF FOUR OR FIVE
BOXES.  I DIDN'T PUT THEM ALL IN ONE BOX SIMPLY BECAUSE, IF SOMEONE
WOULD THROW ONE OUT THEY WOULD THROW THEM ALL OUT.  I HAD A SUSPICION
THAT SOMEONE IN AUTHORITY MIGHT WELL FIND THESE ARTICLES AND THROW THEM
OUT FOR THE REASONS I GAVE YOU.  I HAD HEARD THAT FINGERPRINTS WOULD BE
IDENTIFIED SO I PUT MY HAND OVER IT LIKE THAT (INDICATING).  I WAS
SUSPICIOUS OF IT FOR THE SAME REASONS I GAVE YOU."  THERE WAS NO
EVIDENCE CONTRADICTING ANY OF THIS TESTIMONY. 

MR. JUSTICE ROBERTS: 

WITHOUT DISCUSSING THE EVIDENCE IN DETAIL OR CHARACTERIZING THE
PETITIONER'S CONDUCT, I DEEM IT SUFFICIENT TO SAY THAT I CONCUR IN THE
VIEW THAT THERE WAS NOT SUFFICIENT EVIDENCE IN THE CASE TO WARRANT
SUBMISSION TO THE JURY.  THE CONVICTION OF VIOLATION OF THE STATUTE
SHOULD, THEREFORE, BE REVERSED. 

MR. JUSTICE REED, WITH WHOM MR. JUSTICE FRANKFURTER, MR. JUSTICE
DOUGLAS AND MR. JUSTICE JACKSON CONCUR, DISSENTING: 

THE FIRST AMENDMENT TO THE CONSTITUTION PRESERVES FREEDOM OF SPEECH
AND OF THE PRESS IN WAR AS WELL AS IN PEACE.  THE RIGHT TO CRITICIZE
THE GOVERNMENT AND THE HANDLING OF THE WAR IS NOT QUESTIONED.  CONGRESS
HAS NOT SOUGHT, DIRECTLY OR INDIRECTLY, TO ABRIDGE THE RIGHT OF ANYONE
TO PRESENT HIS VIEWS ON THE CONDUCT OF THE WAR OR THE MAKING OF THE
PEACE.  THE LEGISLATION UNDER WHICH HARTZEL WAS TRIED AND CONVICTED WAS
AIMED AT THOSE WHO, IN TIME OF WAR, "SHALL WILLFULLY CAUSE OR ATTEMPT
TO CAUSE INSUBORDINATION, DISLOYALTY, OR REFUSAL OF DUTY, IN THE
MILITARY OR NAVAL FORCES OF THE UNITED STATES."  IT IS ONLY WHEN THE
REQUISITE INTENT TO PRODUCE THOSE RESULTS IS PRESENT THAT CRITICISM MAY
CROSS OVER THE LINE OF PROHIBITED CONDUCT.  THE CONSTITUTIONAL POWER OF
CONGRESS SO TO PROTECT THE NATIONAL INTEREST IS BEYOND QUESTION. 
SCHENCK V. UNITED STATES, 249 U.S. 47. 

IF THE PETITIONER COMMITTED ACTS FROM WHICH A PROPERLY INSTRUCTED
JURY COULD REASONABLY CONCLUDE THAT THE REQUISITE INTENTION EXISTED TO
CAUSE THE EVILS AGAINST WHICH THE STATUTE IS DIRECTED, THE SENTENCE WAS
PROPER.  AS THE VERDICT WAS GENERAL, WE NEED ONLY TO EXAMINE THE
PROCEEDINGS UNDER THE COUNT OF THE INDICTMENT WHICH CHARGED VIOLATION
OF THE LAW IN THE WORDS QUOTED IN THE PRECEDING PARAGRAPH.  HIRABAYASHI
V. UNITED STATES, 320 U.S. 81, 105. 

PETITIONER URGES THAT THESE ARTICLES, WHICH CONTAIN ON THEIR FACE NO
EXPLICIT CALL UPON THE MILITARY TO DISOBEY ORDERS, ACT IN A DISLOYAL
MANNER, MUTINY OR DISREGARD THEIR DUTY, CANNOT BE A VIOLATION OF THE
STATUTE BECAUSE THEY OFFER NO PROOF OF THE NECESSARY INTENT AND NONE IS
OFFERED OUTSIDE OF THE PAPERS THEMSELVES.  WE THINK THAT THIS ARGUMENT
FAILS.  CONGRESS HAS MADE IT AN OFFENSE WILLFULLY TO ATTEMPT TO CAUSE
INSUBORDINATION AND LIKEWISE WILLFULLY TO OBSTRUCT THE RECRUITING AND
ENLISTMENT SERVICE OF THE NATION.  IT DOES NOT COMMEND ITSELF TO US TO
HOLD THAT THEREBY CONGRESS WAS MERELY CONCERNED WITH CRUDE ATTEMPTS TO
UNDERMINE THE WAR EFFORT BUT GAVE FREE PLAY TO LESS OBVIOUS AND MORE
SKILLFUL WAYS OF BRINGING ABOUT THE SAME MISCHIEVOUS RESULTS.  PAPERS
OR SPEECHES MAY CONTAIN INCITEMENTS FOR THE MILITARY TO BE
INSUBORDINATE OR TO MUTINY WITHOUT A SPECIFIC CALL UPON THE ARMED
FORCES SO TO ACT.  IF CIRCULATED FOR THE PURPOSE OF UNDERMINING
MILITARY DISCIPLINE, SCURRILOUS ARTICLES, ATTACKING AN ALLY, A MINORITY
OF OUR CITIZENS AND THE PRESIDENT, MAY CONTAIN, WITHOUT WORDS OF
SOLICITATION, INDICATIONS OF PURPOSE SUFFICIENT, IF ACCEPTED AS TRUE,
FROM WHICH TO DRAW AN INTENT TO ACCOMPLISH THE UNLAWFUL RESULTS. 

MOREOVER, WHEN THE OTHER EVIDENCE IS ADDED TO THE ARTICLES
THEMSELVES, WE THINK THAT ENOUGH FACTS REVEALING THE REQUISITE INTENT
WERE PRESENTED TO JUSTIFY THE VERDICT.  OTHER SIMILAR ARTICLES
CIRCULATED PRIOR TO THE DECLARATION OF WAR TENDED TO SHOW A CONTINUING
INTENTION.  THE ARTICLES WHICH WERE THE BASIS OF THE INDICTMENT WERE
SENT TO MILITARY OFFICERS INCLUDING THOSE OF THE HIGHEST RANK.  THIS
CIRCUMSTANCE IS BROUGHT FORWARD BY PETITIONER AS INDICATIVE OF A LACK
OF INTENTION TO UNDERMINE THE MILITARY FORCES.  THIS WAS DOUBTLESS
WEIGHED BY THE JURY, BUT CERTAINLY IT CANNOT BE SAID THAT CIRCULATION
OF PROPAGANDA AMONG OFFICERS SHOWS LESS INTENTION TO PROSELYTE THAN TO
CIRCULATE AMONG THE ENLISTED PERSONNEL.  COPIES WERE SENT TO THE
INFANTRY JOURNAL, A PUBLICATION CIRCULATING LARGELY IN THE ARMED
FORCES.  NOTHING APPEARS AS TO ANY MOTIVE, OTHER THAN INTERFERENCE WITH
DISCIPLINE, THAT THE PETITIONER MIGHT HAVE IN DISTRIBUTING THIS TYPE OF
PAMPHLET TO PROFESSIONAL MILITARY OFFICERS.  THE JURY WAS ENTITLED TO
WEIGH THE FACT THAT THE ARTICLES WERE SENT ANONYMOUSLY.  THE JURY WAS
ALSO ENTITLED TO WEIGH THE FACT THAT THOSE TO WHOM THE ARTICLES WERE
SENT WERE HAND-PICKED AND COMPOSED A SELECT GROUP.  THESE ACTIONS SPEAK
AS LOUD AS WORDS. 

HARTZEL HIMSELF, MOREOVER, MADE A STATEMENT WHICH WAS INTRODUCED AT
THE TRIAL.  IN IT HE TOLD OF THE PREPARATION OF THE PAMPHLETS, THE
SELECTION OF THE MAILING LIST FROM AMONG PROMINENT PERSONAGES AND
ASSOCIATIONS AND HIS REASON FOR HIS ACTS.  HIS INTENT APPEARS IN THESE
WORDS: 

"FINALLY, THE PRIME MOTIVE WHICH IMPELLED ME IN WRITING AND
DISTRIBUTING THE ARTICLES DISCUSSED ABOVE, WAS THE HOPE THAT THEY MIGHT
TEND TO CREATE SENTIMENT AGAINST WAR AMONGST THE WHITE RACES AND IN
DIVERTING THE WAR FROM THEM, TO UNITE THE WHITE RACES AGAINST WHAT I
CONSIDER TO BE THE MORE DANGEROUS ENEMIES, THE YELLOW RACES." 

THE JURY MIGHT WELL INFER FROM THE QUOTED PARAGRAPH THAT HARTZEL, BY
PLACING THESE PAMPHLETS IN MILITARY HANDS, WAS ATTEMPTING TO CAUSE
INSUBORDINATION AMONG THE TROOPS.  HE SOUGHT TO DEVELOP SENTIMENT
"AGAINST WAR AMONG THE WHITE RACES."  GERMANS ARE A "WHITE RACE." 

THESE PAMPHLETS WERE DISTRIBUTED IN 1942.  THE MILITARY SITUATION WAS
THEN NOTHING LIKE SO STRONG AS NOW NOR CONFIDENCE IN OUR STRATEGY SO
UNIFORM.  A LARGE SEGMENT OF PUBLIC OPINION DESIRED TO CONCENTRATE
AGAINST JAPAN, RATHER THAN GERMANY AND ITALY, A VIEWPOINT WHICH
DOUBTLESS HAD ADVOCATES AMONG THE MEMBERS OF THE ARMED FORCES.  IT WAS
AN OPPORTUNE TIME FROM THE VIEWPOINT OF THE GERMAN ENEMY TO PUT
PAMPHLETS SUCH AS THESE IN CIRCULATION WHICH TAUGHT SUSPICION OF
BRITAIN, VILIFIED JEWS AND PROMOTED LACK OF CONFIDENCE IN THE
PRESIDENT.  ON THE QUESTION OF INTENTION, THE CIRCUMSTANCES UNDER WHICH
THE PAMPHLETS WERE DISTRIBUTED WERE IMPORTANT AND ENTITLED TO WEIGHT. 
PETITIONER PLAYED PRECISELY UPON THOSE PREJUDICES FROM WHICH AT THAT
TIME INSUBORDINATION OR DISLOYALTY WAS MOST LIKELY TO DEVELOP. 

WE ARE NOT A JURY PASSING ON HARTZEL'S STATE OF MIND.  OUR SOLE AND
VERY LIMITED DUTY IS TO DECIDE WHETHER THERE WAS EVIDENCE ENOUGH
WARRANTING THE TRIAL JUDGE LETTING THE CASE GO TO THE JURY, WHETHER 12
JURYMEN HAD WARRANT FOR THEIR FINDING THAT HARTZEL'S VERY PURPOSE WAS
TO UNDERMINE THE WILL OF OUR SOLDIERS TO FIGHT OUR NAZI ENEMY, AND
WHETHER THE CIRCUIT COURT OF APPEALS WAS WARRANTED IN SUSTAINING SUCH A
FINDING.  WE ARE AT A LOSS TO KNOW WHAT OTHER INTENT IS TO BE
ATTRIBUTED TO THE DISSEMINATION OF THESE DOCUMENTS TO OUR SOLDIERY.  TO
ADOPT THE LANGUAGE OF MR. JUSTICE HOLMES SPEAKING FOR A UNANIMOUS COURT
IN SCHENCK V. UNITED STATES, 249 U.S. 47, 51, OF COURSE THE DOCUMENTS
WOULD NOT HAVE BEEN SENT UNLESS THEY HAD BEEN INTENDED TO HAVE SOME
EFFECT, AND WE DO NOT SEE WHAT EFFECT THEY COULD BE EXPECTED TO HAVE
UPON PERSONS IN THE MILITARY SERVICE EXCEPT TO INFLUENCE THEM TO
OBSTRUCT THE CARRYING ON OF THE WAR AGAINST GERMANY WHEN PETITIONER
DEEMED THAT A BETRAYAL OF OUR COUNTRY. 

AS THE TRIAL JUDGE APTLY STATED: 

"ALL OF THE CIRCUMSTANCES OF THE CASE, IT SEEMS TO ME, THE VERY
LANGUAGE OF THE PAMPHLETS COMPOSED AND DISTRIBUTED BY HARTZEL SHOW SUCH
INTENT.  FOR WHAT PURPOSE OTHER THAN HINDERING THE CARRYING ON OF THE
WAR IN ANY WAY DID HE HAVE OR COULD HE HAVE HAD IN MIND?  HE APPEARED
ON THE STAND TO BE AN UNUSUALLY SHREWD PERSON.  THE STORY HE TELLS OF
HIS EDUCATION AND HIS ACTIVITIES INDICATES THAT WHATEVER HE DOES IS
DELIBERATE AND WITH A DEFINITE PURPOSE.  HE IS NOT A FANATIC ATTACHED
TO A CAUSE, HAVING POLITICAL AND ECONOMIC THEORIES FOR THE LIBERATION
OF OPPRESSED PEOPLES AS WERE THE DEFENDANTS IN PIERCE V. UNITED STATES,
252 U.S. 239, AND ABRAMS V. UNITED STATES, 250 U.S. 616, WHERE JUSTICES
HOLMES AND BRANDEIS IN DISSENTING OPINIONS FOUND THAT THE LITERATURE
DISTRIBUTED BY THE DEFENDANTS HAD AS ITS PURPOSE PROPAGATING CERTAIN
ECONOMIC IDEAS RATHER THAN INTERFERING WITH ENLISTMENT OR RECRUITING OR
INSUBORDINATION OR DISLOYALTY TO THE ARMY.  IN THIS CASE THE JURY WERE
WARRANTED IN PRESUMING FROM THE PREPARATION AND CIRCULATION OF THE
LITERATURE THAT HARTZEL INTENDED TO OBSTRUCT ENLISTMENT AND RECRUITING
AND TO CAUSE INSUBORDINATION AND DISLOYALTY IN THE MILITARY SERVICE OF
THE UNITED STATES." 

ON THESE FACTS WE WOULD INTRUDE ON THE HISTORIC FUNCTION OF THE JURY
IN CRIMINAL TRIALS TO SAY THAT THE REQUISITE INTENT "TO CAUSE
INSUBORDINATION, DISLOYALTY, OR REFUSAL OF DUTY, IN THE MILITARY OR
NAVAL FORCES" WAS LACKING.  THE RIGHT OF FREE SPEECH IS VITAL.  BUT THE
NECESSITY OF FINDING BEYOND A REASONABLE DOUBT THE INTENT TO PRODUCE
THE PROHIBITED RESULT AFFORDS ABUNDANT PROTECTION TO THOSE WHOSE
CRITICISM IS DIRECTED TO LEGITIMATE ENDS. 
..END :













UNITED STATES V. WHITE, 322 U.S. 694 


NO. 366.  ARGUED MARCH 6, 1944.  - DECIDED JUNE 12, 1944.  - 137 F.2D
24, REVERSED. 


1.  THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION IS
ESSENTIALLY A PERSONAL ONE, APPLYING ONLY TO NATURAL INDIVIDUALS.  P.
698. 

2.  THE PAPERS AND EFFECTS WHICH THE PRIVILEGE PROTECTS MUST BE THE
PRIVATE PROPERTY OF THE PERSON CLAIMING THE PRIVILEGE, OR AT LEAST IN
HIS POSSESSION IN A PURELY PERSONAL CAPACITY.  P. 699. 

3.  AN OFFICER OF AN UNINCORPORATED LABOR UNION HAS NO RIGHT, UNDER
THE FOURTH AND FIFTH AMENDMENTS OF THE FEDERAL CONSTITUTION, TO REFUSE
TO PRODUCE BOOKS AND RECORDS OF THE UNION - WHICH ARE IN HIS POSSESSION
AND WHICH A FEDERAL COURT BY A SUBPOENA DUCES TECUM HAS REQUIRED TO BE
PRODUCED - ON THE GROUND THAT THEY MIGHT TEND TO INCRIMINATE THE UNION
OR HIMSELF AS AN OFFICER THEREOF AND INDIVIDUALLY.  P. 704. 

THE TEST OF THE APPLICABILITY OF THE PRIVILEGE IS WHETHER ONE CAN
FAIRLY SAY UNDER ALL THE CIRCUMSTANCES THAT A PARTICULAR TYPE OF
ORGANIZATION HAS A CHARACTER SO IMPERSONAL IN THE SCOPE OF ITS
MEMBERSHIP AND ACTIVITIES THAT IT CAN NOT BE SAID TO EMBODY OR
REPRESENT THE PURELY PRIVATE OR PERSONAL INTERESTS OF ITS CONSTITUENTS,
BUT RATHER TO EMBODY THEIR COMMON OR GROUP INTERESTS ONLY.  IF SO, THE
PRIVILEGE CAN NOT BE INVOKED ON BEHALF OF THE ORGANIZATION OR ITS
REPRESENTATIVES IN THEIR OFFICIAL CAPACITY.  P. 701. 

4.  WHETHER THE PERSON ASSERTING THE PRIVILEGE IN SUCH CASE IS A
MEMBER OF THE UNION, AND WHETHER THE UNION WAS SUBJECT TO THE
PROVISIONS OF THE STATUTE IN RELATION TO WHICH THE INVESTIGATION WAS
BEING MADE, ARE IMMATERIAL.  P. 704. 

UNITED STATES V. WHITE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 320 U.S. 729, TO REVIEW THE REVERSAL OF A JUDGMENT
SENTENCING THE RESPONDENT FOR CONTEMPT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

DURING THE COURSE OF A GRAND JURY INVESTIGATION INTO ALLEGED
IRREGULARITIES IN THE CONSTRUCTION OF THE MECHANICSBURG NAVAL SUPPLY
DEPOT, THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT
OF PENNSYLVANIA ISSUED A SUBPOENA DUCES TECUM DIRECTED TO "LOCAL NO.
542, INTERNATIONAL UNION OF OPERATING ENGINEERS."  THIS SUBPOENA
REQUIRED THE UNION TO PRODUCE BEFORE THE GRAND JURY ON JANUARY 11,
1943, COPIES OF ITS CONSTITUTION AND BY-LAWS AND SPECIFICALLY
ENUMERATED UNION RECORDS SHOWING ITS COLLECTIONS OF WORK-PERMIT FEES,
INCLUDING THE AMOUNTS PAID THEREFOR AND THE IDENTITY OF THE PAYORS FROM
JANUARY 1, 1942, TO THE DATE OF THE ISSUANCE OF THE SUBPOENA, DECEMBER
28, 1942. 

THE UNITED STATES MARSHAL SERVED THE SUBPOENA ON THE PRESIDENT OF THE
UNION.  ON JANUARY 11, 1943, RESPONDENT APPEARED BEFORE THE GRAND JURY,
DESCRIBING HIMSELF AS "ASSISTANT SUPERVISOR" OF THE UNION.  ALTHOUGH HE
WAS NOT SHOWN TO BE THE AUTHORIZED CUSTODIAN OF THE UNION'S BOOKS, HE
HAD THE DEMANDED DOCUMENTS IN HIS POSSESSION.  HE HAD NOT BEEN
SUBPOENAED PERSONALLY TO TESTIFY NOR PERSONALLY DIRECTED BY THE
SUBPOENA DUCES TECUM TO PRODUCE THE UNION'S RECORDS.  MOREOVER, THERE
WAS NO EFFORT OR INDICATED INTENTION TO EXAMINE HIM PERSONALLY AS A
WITNESS.  NEVERTHELESS HE DECLINED TO PRODUCE THE DEMANDED DOCUMENTS
"UPON THE GROUND THAT THEY MIGHT TEND TO INCRIMINATE LOCAL UNION 542,
INTERNATIONAL UNION OF OPERATING ENGINEERS, MYSELF AS AN OFFICER
THEREOF, OR INDIVIDUALLY."  HE REITERATED HIS REFUSAL AFTER CONSULTING
COUNSEL. 

HE WAS IMMEDIATELY CITED FOR CONTEMPT OF COURT AND DURING THE HEARING
ON THE CONTEMPT REPEATED HIS REFUSAL ONCE AGAIN.  HE BASED HIS REFUSAL
ON THE OPINION OF HIS COUNSEL THAT "GREAT UNCERTAINTY EXISTS TODAY AS
TO WHAT MAY OR MAY NOT CONSTITUTE A VIOLATION OF SECTION 276(B), TITLE
40, OF THE UNITED STATES CODE."  FN1  HE MADE NO EFFORT, ALTHOUGH HE
APPARENTLY WAS WILLING, TO TENDER THE RECORDS FOR THE JUDGE'S
INSPECTION IN SUPPORT OF HIS ASSERTION THAT THEIR CONTENTS WOULD TEND
TO INCRIMINATE HIM OR THE UNION.  THE DISTRICT COURT HELD HIS REFUSAL
INEXCUSABLE, ADJUDGED HIM GUILTY OF CONTEMPT OF COURT AND SENTENCED HIM
TO THIRTY DAYS IN PRISON. 

THE COURT BELOW REVERSED THE DISTRICT COURT'S JUDGMENT BY A DIVIDED
VOTE.  137 F.2D 24.  THE MAJORITY HELD THAT THE RECORDS OF AN
UNINCORPORATED LABOR UNION WERE THE PROPERTY OF ALL ITS MEMBERS AND
THAT, IF RESPONDENT WERE A UNION MEMBER AND IF THE BOOKS AND RECORDS
WOULD HAVE TENDED TO INCRIMINATE HIM, HE PROPERLY COULD REFUSE TO
PRODUCE THEM BEFORE THE GRAND JURY.  THE COURT BELOW ACCORDINGLY
REMANDED THE CASE TO THE DISTRICT COURT WITH DIRECTIONS TO SUSTAIN THE
CLAIM OF PRIVILEGE IF AFTER FURTHER INQUIRY IT SHOULD DETERMINE THAT
RESPONDENT WAS IN FACT A MEMBER OF THE UNION AND THAT THE DOCUMENTS
WOULD TEND TO INCRIMINATE HIM AS AN INDIVIDUAL.  WE GRANTED CERTIORARI,
320 U.S. 729, BECAUSE OF THE NOVEL AND IMPORTANT QUESTION OF
CONSTITUTIONAL LAW WHICH IS PRESENTED.  FN2 

THE ONLY ISSUE IN THIS CASE RELATES TO THE NATURE AND SCOPE OF THE
CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  WE ARE NOT
CONCERNED HERE WITH A COMPLETE DELINEATION OF THE LEGAL STATUS OF
UNINCORPORATED LABOR UNIONS.  WE EXPRESS NO OPINION AS TO THE LEGALITY
OR DESIRABILITY OF INCORPORATING SUCH UNIONS OR AS TO THE NECESSITY OF
CONSIDERING THEM AS SEPARATE ENTITIES APART FROM THEIR MEMBERS FOR
PURPOSES OTHER THAN THE ONE POSED BY THE NARROW ISSUE IN THIS CASE. 
NOR DO WE QUESTION THE OBVIOUS FACT THAT BUSINESS CORPORATIONS, BY
VIRTUE OF THEIR CREATION BY THE STATE AND BECAUSE OF THE NATURE AND
PURPOSE OF THEIR ACTIVITIES, DIFFER IN MANY SIGNIFICANT RESPECTS FROM
UNIONS, RELIGIOUS BODIES, TRADE ASSOCIATIONS, SOCIAL CLUBS AND OTHER
TYPES OF ORGANIZATIONS, AND ACCORDINGLY OWE DIFFERENT OBLIGATIONS TO
THE FEDERAL AND STATE GOVERNMENTS.  OUR ATTENTION IS DIRECTED SOLELY TO
THE RIGHT OF AN OFFICER OF A UNION TO CLAIM THE PRIVILEGE AGAINST SELF
INCRIMINATION UNDER THE CIRCUMSTANCES HERE PRESENTED. 

RESPONDENT CONTENDS THAT AN OFFICER OF AN UNINCORPORATED LABOR UNION
POSSESSES A CONSTITUTIONAL RIGHT TO REFUSE TO PRODUCE, IN COMPLIANCE
WITH A SUBPOENA DUCES TECUM, RECORDS OF THE UNION WHICH ARE IN HIS
CUSTODY AND WHICH MIGHT TEND TO INCRIMINATE HIM.  HE RELIES UPON THE
"UNREASONABLE SEARCH AND SEIZURE" CLAUSE OF THE FOURTH AMENDMENT AND
THE EXPLICIT GUARANTEE OF THE FIFTH AMENDMENT THAT NO PERSON SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF.  WE
HOLD, HOWEVER, THAT NEITHER THE FOURTH NOR THE FIFTH AMENDMENT, BOTH OF
WHICH ARE DIRECTED PRIMARILY TO THE PROTECTION OF INDIVIDUAL AND
PERSONAL RIGHTS, REQUIRES THE RECOGNITION OF A PRIVILEGE AGAINST SELF
INCRIMINATION UNDER THE CIRCUMSTANCES OF THIS CASE. 

THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION IS
ESSENTIALLY A PERSONAL ONE, APPLYING ONLY TO NATURAL INDIVIDUALS.  IT
GROWS OUT OF THE HIGH SENTIMENT AND REGARD OF OUR JURISPRUDENCE FOR
CONDUCTING CRIMINAL TRIALS AND INVESTIGATORY PROCEEDINGS UPON A PLANE
OF DIGNITY, HUMANITY AND IMPARTIALITY.  IT IS DESIGNED TO PREVENT THE
USE OF LEGAL PROCESS TO FORCE FROM THE LIPS OF THE ACCUSED INDIVIDUAL
THE EVIDENCE NECESSARY TO CONVICT HIM OR TO FORCE HIM TO PRODUCE AND
AUTHENTICATE ANY PERSONAL DOCUMENTS OR EFFECTS THAT MIGHT INCRIMINATE
HIM.  PHYSICAL TORTURE AND OTHER LESS VIOLENT BUT EQUALLY REPREHENSIBLE
MODES OF COMPELLING THE PRODUCTION OF INCRIMINATING EVIDENCE ARE
THEREBY AVOIDED.  THE PROSECUTORS ARE FORCED TO SEARCH FOR INDEPENDENT
EVIDENCE INSTEAD OF RELYING UPON PROOF EXTRACTED FROM INDIVIDUALS BY
FORCE OF LAW.  THE IMMEDIATE AND POTENTIAL EVILS OF COMPULSORY SELF
DISCLOSURE TRANSCEND ANY DIFFICULTIES THAT THE EXERCISE OF THE
PRIVILEGE MAY IMPOSE ON SOCIETY IN THE DETECTION AND PROSECUTION OF
CRIME.  WHILE THE PRIVILEGE IS SUBJECT TO ABUSE AND MISUSE, IT IS
FIRMLY EMBEDDED IN OUR CONSTITUTIONAL AND LEGAL FRAMEWORKS AS A BULWARK
AGAINST INIQUITOUS METHODS OF PROSECUTION.  IT PROTECTS THE INDIVIDUAL
FROM ANY DISCLOSURE, IN THE FORM OF ORAL TESTIMONY, DOCUMENTS OR
CHATTELS, SOUGHT BY LEGAL PROCESS AGAINST HIM AS A WITNESS. 

SINCE THE PRIVILEGE AGAINST SELF-INCRIMINATION IS A PURELY PERSONAL
ONE, IT CANNOT BE UTILIZED BY OR ON BEHALF OF ANY ORGANIZATION, SUCH AS
A CORPORATION.  HALE V. HENKEL, 201 U.S. 43; WILSON V. UNITED STATES,
221 U.S. 361; ESSGEE CO. V. UNITED STATES, 262 U.S. 151.  SEE ALSO
UNITED STATES V. INVADER OIL CORP., 5 F.2D 715.  MOREOVER, THE PAPERS
AND EFFECTS WHICH THE PRIVILEGE PROTECTS MUST BE THE PRIVATE PROPERTY
OF THE PERSON CLAIMING THE PRIVILEGE, OR AT LEAST IN HIS POSSESSION IN
A PURELY PERSONAL CAPACITY.  BOYD V. UNITED STATES, 116 U.S. 616.  BUT
INDIVIDUALS, WHEN ACTING AS REPRESENTATIVES OF A COLLECTIVE GROUP,
CANNOT BE SAID TO BE EXERCISING THEIR PERSONAL RIGHTS AND DUTIES NOR TO
BE ENTITLED TO THEIR PURELY PERSONAL PRIVILEGES.  RATHER THEY ASSUME
THE RIGHTS, DUTIES AND PRIVILEGES OF THE ARTIFICIAL ENTITY OR
ASSOCIATION OF WHICH THEY ARE AGENTS OR OFFICERS AND THEY ARE BOUND BY
ITS OBLIGATIONS.  IN THEIR OFFICIAL CAPACITY, THEREFORE, THEY HAVE NO
PRIVILEGE AGAINST SELF-INCRIMINATION.  AND THE OFFICIAL RECORDS AND
DOCUMENTS OF THE ORGANIZATION THAT ARE HELD BY THEM IN A REPRESENTATIVE
RATHER THAN IN A PERSONAL CAPACITY CANNOT BE THE SUBJECT OF THE
PERSONAL PRIVILEGE AGAINST SELF-INCRIMINATION, EVEN THOUGH PRODUCTION
OF THE PAPERS MIGHT TEND TO INCRIMINATE THEM PERSONALLY.  WILSON V.
UNITED STATES, SUPRA; DREIER V. UNITED STATES, 221 U.S. 394; BALTIMORE
& OHIO R. CO. V. INTERSTATE COMMERCE COMMISSION, 221 U.S. 612; WHEELER
V. UNITED STATES, 226 U.S. 478; GRANT V. UNITED STATES, 227 U.S. 74;
ESSGEE CO. V. UNITED STATES, SUPRA.  SUCH RECORDS AND PAPERS ARE NOT
THE PRIVATE RECORDS OF THE INDIVIDUAL MEMBERS OR OFFICERS OF THE
ORGANIZATION.  USUALLY, IF NOT ALWAYS, THEY ARE OPEN TO INSPECTION BY
THE MEMBERS AND THIS RIGHT MAY BE ENFORCED ON APPROPRIATE OCCASIONS BY
AVAILABLE LEGAL PROCEDURES.  SEE GUTHRIE V. HARKNESS, 199 U.S. 148,
153.  THEY THEREFORE EMBODY NO ELEMENT OF PERSONAL PRIVACY AND CARRY
WITH THEM NO CLAIM OF PERSONAL PRIVILEGE. 

THE REASON UNDERLYING THE RESTRICTION OF THIS CONSTITUTIONAL
PRIVILEGE TO NATURAL INDIVIDUALS ACTING IN THEIR OWN PRIVATE CAPACITY
IS CLEAR.  THE SCOPE AND NATURE OF THE ECONOMIC ACTIVITIES OF
INCORPORATED AND UNINCORPORATED ORGANIZATIONS AND THEIR REPRESENTATIVES
DEMAND THAT THE CONSTITUTIONAL POWER OF THE FEDERAL AND STATE
GOVERNMENTS TO REGULATE THOSE ACTIVITIES BE CORRESPONDINGLY EFFECTIVE. 
THE GREATER PORTION OF EVIDENCE OF WRONGDOING BY AN ORGANIZATION OR ITS
REPRESENTATIVES IS USUALLY TO BE FOUND IN THE OFFICIAL RECORDS AND
DOCUMENTS OF THAT ORGANIZATION.  WERE THE CLOAK OF THE PRIVILEGE TO BE
THROWN AROUND THESE IMPERSONAL RECORDS AND DOCUMENTS, EFFECTIVE
ENFORCEMENT OF MANY FEDERAL AND STATE LAWS WOULD BE IMPOSSIBLE.  SEE
HALE V. HENKEL, SUPRA, 70, 74; 8 WIGMORE ON EVIDENCE (3D ED.)  SEC. 
2259A.  THE FRAMERS OF THE CONSTITUTIONAL GUARANTEE AGAINST COMPULSORY
SELF-DISCLOSURE, WHO WERE INTERESTED PRIMARILY IN PROTECTING INDIVIDUAL
CIVIL LIBERTIES, CANNOT BE SAID TO HAVE INTENDED THE PRIVILEGE TO BE
AVAILABLE TO PROTECT ECONOMIC OR OTHER INTERESTS OF SUCH ORGANIZATIONS
SO AS TO NULLIFY APPROPRIATE GOVERNMENTAL REGULATIONS. 

THE FACT THAT THE STATE CHARTERS CORPORATIONS AND HAS VISITORIAL
POWERS OVER THEM PROVIDES A CONVENIENT VEHICLE FOR JUSTIFICATION OF
GOVERNMENTAL INVESTIGATION OF CORPORATE BOOKS AND RECORDS.  HALE V.
HENKEL, SUPRA; WILSON V. UNITED STATES, SUPRA.  BUT THE ABSENCE OF THAT
FACT AS TO A PARTICULAR TYPE OF ORGANIZATION DOES NOT LESSEN THE PUBLIC
NECESSITY FOR MAKING REASONABLE REGULATIONS OF ITS ACTIVITIES
EFFECTIVE, NOR DOES IT CONFER UPON SUCH AN ORGANIZATION THE PURELY
PERSONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  BASICALLY, THE POWER TO
COMPEL THE PRODUCTION OF THE RECORDS OF ANY ORGANIZATION, WHETHER IT BE
INCORPORATED OR NOT, ARISES OUT OF THE INHERENT AND NECESSARY POWER OF
THE FEDERAL AND STATE GOVERNMENTS TO ENFORCE THEIR LAWS, WITH THE
PRIVILEGE AGAINST SELF-INCRIMINATION BEING LIMITED TO ITS HISTORIC
FUNCTION OF PROTECTING ONLY THE NATURAL INDIVIDUAL FROM COMPULSORY
INCRIMINATION THROUGH HIS OWN TESTIMONY OR PERSONAL RECORDS. 

IT FOLLOWS THAT LABOR UNIONS, AS WELL AS THEIR OFFICERS AND AGENTS
ACTING IN THEIR OFFICIAL CAPACITY, CANNOT INVOKE THIS PERSONAL
PRIVILEGE.  THIS CONCLUSION IS NOT REACHED BY ANY MECHANICAL COMPARISON
OF UNIONS WITH CORPORATIONS OR WITH OTHER ENTITIES NOR BY ANY
DETERMINATION OF WHETHER UNIONS TECHNICALLY MAY BE REGARDED AS LEGAL
PERSONALITIES FOR ANY OR ALL PURPOSES.  THE TEST, RATHER, IS WHETHER
ONE CAN FAIRLY SAY UNDER ALL THE CIRCUMSTANCES THAT A PARTICULAR TYPE
OF ORGANIZATION HAS A CHARACTER SO IMPERSONAL IN THE SCOPE OF ITS
MEMBERSHIP AND ACTIVITIES THAT IT CANNOT BE SAID TO EMBODY OR REPRESENT
THE PURELY PRIVATE OR PERSONAL INTERESTS OF ITS CONSTITUENTS, BUT
RATHER TO EMBODY THEIR COMMON OR GROUP INTERESTS ONLY.  IF SO, THE
PRIVILEGE CANNOT BE INVOKED ON BEHALF OF THE ORGANIZATION OR ITS
REPRESENTATIVES IN THEIR OFFICIAL CAPACITY.  LABOR UNIONS - NATIONAL OR
LOCAL, INCORPORATED OR UNINCORPORATED - CLEARLY MEET THAT TEST. 

STRUCTURALLY AND FUNCTIONALLY, A LABOR UNION IS AN INSTITUTION WHICH
INVOLVES MORE THAN THE PRIVATE OR PERSONAL INTERESTS OF ITS MEMBERS. 
IT REPRESENTS ORGANIZED, INSTITUTIONAL ACTIVITY AS CONTRASTED WITH
WHOLLY INDIVIDUAL ACTIVITY.  THIS DIFFERENCE IS AS WELL DEFINED AS THAT
EXISTING BETWEEN INDIVIDUAL MEMBERS OF THE UNION.  THE UNION'S
EXISTENCE IN FACT, AND FOR SOME PURPOSES IN LAW, IS AS PERPETUAL AS
THAT OF ANY CORPORATION, NOT BEING DEPENDENT UPON THE LIFE OF ANY
MEMBER.  IT NORMALLY OPERATES UNDER ITS OWN CONSTITUTION, RULES AND BY
LAWS WHICH, IN CONTROVERSIES BETWEEN MEMBER AND UNION, ARE OFTEN
ENFORCED BY THE COURTS.  THE UNION ENGAGES IN A MULTITUDE OF BUSINESS
AND OTHER OFFICIAL CONCERTED ACTIVITIES, NONE OF WHICH CAN BE SAID TO
BE THE PRIVATE UNDERTAKINGS OF THE MEMBERS FN3.  DULY ELECTED UNION
OFFICERS HAVE NO AUTHORITY TO DO OR SANCTION ANYTHING OTHER THAN THAT
WHICH THE UNION MAY LAWFULLY DO; NOR HAVE THEY AUTHORITY TO ACT FOR THE
MEMBERS IN MATTERS AFFECTING ONLY THE INDIVIDUAL RIGHTS OF SUCH
MEMBERS.  THE UNION OWNS SEPARATE REAL AND PERSONAL PROPERTY, EVEN
THOUGH THE TITLE MAY NOMINALLY BE IN THE NAMES OF ITS MEMBERS OR
TRUSTEES.  FN4  THE OFFICIAL UNION BOOKS AND RECORDS ARE DISTINCT FROM
THE PERSONAL BOOKS AND RECORDS OF THE INDIVIDUALS, IN THE SAME MANNER
AS THE UNION TREASURY EXISTS APART FROM THE PRIVATE AND PERSONAL FUNDS
OF THE MEMBERS.  SEE UNITED STATES V. B. GOEDDE & CO., 40 F.SUPP.  523,
534.  AND NO MEMBER OR OFFICER HAS THE RIGHT TO USE THEM FOR CRIMINAL
PURPOSES OR FOR HIS PURELY PRIVATE AFFAIRS.  THE ACTIONS OF ONE
INDIVIDUAL MEMBER NO MORE BIND THE UNION THAN THEY BIND ANOTHER
INDIVIDUAL MEMBER UNLESS THERE IS PROOF THAT THE UNION AUTHORIZED OR
RATIFIED THE ACTS IN QUESTION.  AT THE SAME TIME, THE MEMBERS ARE NOT
SUBJECT TO EITHER CRIMINAL OR CIVIL LIABILITY FOR THE ACTS OF THE UNION
OR ITS OFFICERS AS SUCH UNLESS IT IS SHOWN THAT THEY PERSONALLY
AUTHORIZED OR PARTICIPATED IN THE PARTICULAR ACTS.  SEE LAWLOR V.
LOEWE, 235 U.S. 522; EAGLE GLASS & MFG. CO. V. ROWE, 245 U.S. 275. 
MOREOVER, THIS COURT IN UNITED MINE WORKERS V. CORONADO COAL CO., 259
U.S. 344, HELD THAT LABOR UNIONS MIGHT BE MADE PARTIES DEFENDANT IN
SUITS FOR DAMAGES UNDER THE SHERMAN ACT BY SERVICE OF PROCESS ON THEIR
OFFICERS. 

BOTH COMMON LAW RULES AND LEGISLATIVE ENACTMENTS HAVE GRANTED MANY
SUBSTANTIVE RIGHTS TO LABOR UNIONS AS SEPARATE FUNCTIONING
INSTITUTIONS.  IN UNITED MINE WORKERS V. CORONADO COAL CO., SUPRA, 385
386, THIS COURT POINTED OUT THAT "THE GROWTH AND NECESSITIES OF THESE
GREAT LABOR ORGANIZATIONS HAVE BROUGHT AFFIRMATIVE LEGAL RECOGNITION OF
THEIR EXISTENCE AND USEFULNESS AND PROVISIONS FOR THEIR PROTECTION,
WHICH THEIR MEMBERS HAVE FOUND NECESSARY.  THEIR RIGHT TO MAINTAIN
STRIKES, WHEN THEY DO NOT VIOLATE LAW OR THE RIGHTS OF OTHERS, HAS BEEN
DECLARED.  THE EMBEZZLEMENT OF FUNDS BY THEIR OFFICERS HAS BEEN
ESPECIALLY DENOUNCED AS A CRIME.  THE SO-CALLED UNION LABEL, WHICH IS A
QUASI TRADEMARK TO INDICATE THE ORIGIN OF MANUFACTURED PRODUCT IN UNION
LABOR, HAS BEEN PROTECTED AGAINST PIRATING AND DECEPTIVE USE BY THE
STATUTES OF MOST OF THE STATES, AND IN MANY STATES AUTHORITY TO SUE TO
ENJOIN ITS USE HAS BEEN CONFERRED ON UNIONS.  THEY HAVE BEEN GIVEN
DISTINCT AND SEPARATE REPRESENTATION AND THE RIGHT TO APPEAR TO
REPRESENT UNION INTERESTS IN STATUTORY ARBITRATIONS, AND BEFORE
OFFICIAL LABOR BOARDS."  EVEN GREATER SUBSTANTIVE RIGHTS HAVE BEEN
GRANTED LABOR UNIONS BY FEDERAL AND STATE LEGISLATION SUBSEQUENT TO THE
STATUTES ENUMERATED IN THE OPINION IN THAT CASE.  FN5 

THESE VARIOUS CONSIDERATIONS COMPEL THE CONCLUSION THAT RESPONDENT
COULD NOT CLAIM THE PERSONAL PRIVILEGE AGAINST SELF-INCRIMINATION UNDER
THESE CIRCUMSTANCES.  THE SUBPOENA DUCES TECUM WAS DIRECTED TO THE
UNION AND DEMANDED THE PRODUCTION ONLY OF ITS OFFICIAL DOCUMENTS AND
RECORDS.  RESPONDENT COULD NOT CLAIM THE PRIVILEGE ON BEHALF OF THE
UNION BECAUSE THE UNION DID NOT ITSELF POSSESS SUCH A PRIVILEGE. 
MOREOVER, THE PRIVILEGE IS PERSONAL TO THE INDIVIDUAL CALLED AS A
WITNESS, MAKING IT IMPOSSIBLE FOR HIM TO SET UP THE PRIVILEGE OF A
THIRD PERSON AS AN EXCUSE FOR A REFUSAL TO ANSWER OR TO PRODUCE
DOCUMENTS.  HENCE RESPONDENT COULD NOT RELY UPON ANY POSSIBLE PRIVILEGE
THAT THE UNION MIGHT HAVE.  HALE V. HENKEL, SUPRA, 69-70; MCALISTER V.
HENKEL, 201 U.S. 90.  NOR COULD RESPONDENT CLAIM THE PRIVILEGE ON
BEHALF OF HIMSELF AS AN OFFICER OF THE UNION OR AS AN INDIVIDUAL.  THE
DOCUMENTS HE SOUGHT TO PLACE UNDER THE PROTECTIVE SHIELD OF THE
PRIVILEGE WERE OFFICIAL UNION DOCUMENTS HELD BY HIM IN HIS CAPACITY AS
A REPRESENTATIVE OF THE UNION.  NO VALID CLAIM WAS MADE THAT ANY PART
OF THEM CONSTITUTED HIS OWN PRIVATE PAPERS.  HE THUS COULD NOT OBJECT
THAT THE UNION'S BOOKS AND RECORDS MIGHT INCRIMINATE HIM AS AN OFFICER
OR AS AN INDIVIDUAL. 

IT IS UNNECESSARY TO DETERMINE WHETHER OR NOT RESPONDENT WAS A MEMBER
OF THE UNION IN QUESTION, FOR IN EITHER EVENT HE COULD NOT INVOKE THE
PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THESE FACTS.  IT IS LIKEWISE
IMMATERIAL WHETHER THE UNION WAS SUBJECT TO THE PROVISIONS OF THE
STATUTE IN RELATION TO WHICH THE GRAND JURY WAS MAKING ITS
INVESTIGATION.  THE EXCLUSION OF THE UNION FROM THE BENEFITS OF THE
PURELY PERSONAL PRIVILEGE DOES NOT DEPEND UPON THE NATURE OF THE
PARTICULAR INVESTIGATION OR PROCEEDING.  THE UNION DOES NOT ACQUIRE THE
PRIVILEGE BY REASON OF THE FACT THAT IT IS NOT CHARGED WITH A CRIME OR
THAT IT MAY NOT BE SUBJECT TO LIABILITY UNDER THE STATUTE IN QUESTION. 
THE UNION AND ITS OFFICERS ACTING IN THEIR OFFICIAL CAPACITY LACK THE
PRIVILEGE AT ALL TIMES OF INSULATING THE UNION'S BOOKS AND RECORDS
AGAINST REASONABLE DEMANDS OF GOVERNMENTAL AUTHORITIES. 

THE JUDGMENT OF THE COURT BELOW MUST BE REVERSED AND THAT OF THE
DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  THIS WAS A REFERENCE TO THE SO-CALLED "KICKBACK" ACT, WHICH WAS
BEFORE US IN UNITED STATES V. LAUDANI, 320 U.S. 543.  SECTION 1 OF THE
ACT PROVIDES THAT WHOEVER SHALL INDUCE ANY PERSON EMPLOYED IN THE
CONSTRUCTION, PROSECUTION OR COMPLETION OF ANY PUBLIC BUILDING OR WORK
FINANCED IN WHOLE OR IN PART BY THE UNITED STATES, OR IN THE REPAIR
THEREOF, TO GIVE UP PART OF HIS COMPENSATION BY FORCE, INTIMIDATION,
THREAT OF PROCURING DISMISSAL FROM EMPLOYMENT, OR BY ANY OTHER MANNER
WHATSOEVER SHALL BE FINED NOT MORE THAN $5,000, OR IMPRISONED NOT MORE
THAN FIVE YEARS, OR BOTH.  ACT OF JUNE 13, 1934, C. 482, 48 STAT. 948,
40 U.S.C. SEC. 276(B). 

FN2  IN ITS PETITION FOR A WRIT OF CERTIORARI IN THIS CASE, THE
GOVERNMENT CLAIMED THAT RESPONDENT HAD TAKEN HIS APPEAL TO THE CIRCUIT
COURT OF APPEALS BY FILING A NOTICE OF APPEAL PURSUANT TO THE CRIMINAL
APPEALS RULES RATHER THAN BY APPLICATION FOR APPEAL AS REQUIRED BY SEC.
8(C) OF THE ACT OF FEBRUARY 13, 1925, C. 229, 43 STAT. 940, 28 U.S.C.
SEC. 230.  SEE NYE V. UNITED STATES, 313 U.S. 33, 43-44.  IT APPEARS,
HOWEVER, THAT AT THE CONTEMPT HEARING AN EXTENSIVE COLLOQUY TOOK PLACE
BETWEEN THE DISTRICT JUDGE AND COUNSEL WITH RESPECT TO THE PERFECTING
OF THE APPEAL AND RESPONDENT AT THAT TIME MADE IN EFFECT AN ORAL
APPLICATION FOR APPEAL WHICH WAS ALLOWED BY THE COURT WITHIN THE
MEANING OF THE ACT OF FEBRUARY 13, 1925. 

FN3  IN UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344, 385,
THIS COURT DESCRIBED THE UNION THERE INVOLVED IN THE FOLLOWING TERMS:
"THE MEMBERSHIP OF THE UNION HAS REACHED 450,000.  THE DUES RECEIVED
FROM THEM FOR THE NATIONAL AND DISTRICT ORGANIZATIONS MAKE A VERY LARGE
ANNUAL TOTAL, AND THE OBLIGATIONS ASSUMED IN TRAVELLING EXPENSES,
HOLDING OF CONVENTIONS, AND GENERAL OVERHEAD COST, BUT MOST OF ALL IN
STRIKES, ARE SO HEAVY THAT AN EXTENSIVE FINANCIAL BUSINESS IS CARRIED
ON, MONEY IS BORROWED, NOTES ARE GIVEN TO BANKS, AND IN EVERY WAY THE
UNION ACTS AS A BUSINESS ENTITY, DISTINCT FROM ITS MEMBERS.  NO
ORGANIZED CORPORATION HAS GREATER UNITY OF ACTION, AND IN NONE IS MORE
POWER CENTERED IN THE GOVERNING EXECUTIVE BODIES." 

FN4  LLOYD, THE LAW RELATING TO UNINCORPORATED ASSOCIATIONS (1938)
165 FF.; WRIGHTINGTON, THE LAW OF UNINCORPORATED ASSOCIATIONS (2D ED.
1923) 336 FF. 

FN5 OUTSTANDING EXAMPLES OF FEDERAL LEGISLATION ENACTED SUBSEQUENT TO
THE CORONADO CASE GIVING RECOGNITION TO UNION PERSONALITY ARE THE
NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 29 U.S.C. SEC. 151, THE
RAILWAY LABOR ACT, 44 STAT. 577, 45 U.S.C. SEC. 151, AND THE NORRIS
LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C. SEC. 101.  THE ANTI-RACKETEERING
ACT, 48 STAT. 979, 18 U.S.C. SEC. 420A-E, EXCEPTS CERTAIN TYPES OF
ACTIVITY BY LABOR UNIONS, THEREBY RECOGNIZING THEM AS ENTITIES CAPABLE
OF VIOLATING THE ACT.  THE WAR LABOR DISPUTES ACT, 57 STAT. 163, 50
U.S.C. APP. SEC. 1501, EVIDENCES A SIMILAR RECOGNITION.  SEE, IN
GENERAL, 1 & 2 TELLER, LABOR DISPUTES AND COLLECTIVE BARGAINING (1940),
PART V. FOR REFERENCES TO AND DISCUSSIONS OF RECENT STATE LABOR
LEGISLATION, SEE ID., PART VI; SMITH AND DELANCEY, "THE STATE
LEGISLATURES AND UNIONISM," 38 MICHIGAN LAW REV. 987. 

MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON
CONCUR IN THE RESULT. 
..END :














U.S. V. UNDERWRITERS ASSN., 322 U.S. 533 


NO. 354.  ARGUED JANUARY 11, 1944.  - DECIDED JUNE 5, 1944.  - 51
F.SUPP.  712, REVERSED. 


1.  A FIRE INSURANCE COMPANY WHICH CONDUCTS A SUBSTANTIAL PART OF ITS
BUSINESS TRANSACTIONS ACROSS STATE LINES IS ENGAGED IN "COMMERCE AMONG
THE SEVERAL STATES" AND SUBJECT TO REGULATION BY CONGRESS UNDER THE
COMMERCE CLAUSE.  P. 539. 

2.  A CONSPIRACY TO RESTRAIN INTERSTATE TRADE AND COMMERCE BY FIXING
AND MAINTAINING ARBITRARY AND NONCOMPETITIVE PREMIUM RATES ON FIRE AND
ALLIED LINES OF INSURANCE, AND A CONSPIRACY TO MONOPOLIZE INTERSTATE
TRADE AND COMMERCE IN SUCH LINES OF INSURANCE, HELD VIOLATIONS OF THE
SHERMAN ANTITRUST ACT.  P. 553. 

3.  CONGRESS DID NOT INTEND THAT THE BUSINESS OF INSURANCE SHOULD BE
EXEMPT FROM THE OPERATION OF THE SHERMAN ACT.  PP. 553, 560. 

UNITED STATES V. SOUTH-EASTERN UNDERWRITERS ASSOCIATION ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF GEORGIA. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT SUSTAINING A
DEMURRER TO AN INDICTMENT FOR VIOLATION OF THE SHERMAN ANTITRUST ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

FOR SEVENTY-FIVE YEARS THIS COURT HAS HELD, WHENEVER THE QUESTION HAS
BEEN PRESENTED, THAT THE COMMERCE CLAUSE OF THE CONSTITUTION DOES NOT
DEPRIVE THE INDIVIDUAL STATES OF POWER TO REGULATE AND TAX SPECIFIC
ACTIVITIES OF FOREIGN INSURANCE COMPANIES WHICH SELL POLICIES WITHIN
THEIR TERRITORIES.  EACH STATE HAS BEEN HELD TO HAVE THIS POWER EVEN
THOUGH NEGOTIATION AND EXECUTION OF THE COMPANIES' POLICY CONTRACTS
INVOLVED COMMUNICATIONS OF INFORMATION AND MOVEMENTS OF PERSONS,
MONEYS, AND PAPERS ACROSS STATE LINES.  NOT ONE OF ALL THESE CASES,
HOWEVER, HAS INVOLVED AN ACT OF CONGRESS WHICH REQUIRED THE COURT TO
DECIDE THE ISSUE OF WHETHER THE COMMERCE CLAUSE GRANTS TO CONGRESS THE
POWER TO REGULATE INSURANCE TRANSACTIONS STRETCHING ACROSS STATE
LINES.  TODAY FOR THE FIRST TIME IN THE HISTORY OF THE COURT THAT ISSUE
IS SQUARELY PRESENTED AND MUST BE DECIDED. 

APPELLEES - THE SOUTH-EASTERN UNDERWRITERS ASSOCIATION (S.E.U.A.),
AND ITS MEMBERSHIP OF NEARLY 200 PRIVATE STOCK FIRE INSURANCE
COMPANIES, AND 27 INDIVIDUALS - WERE INDICTED IN THE DISTRICT COURT FOR
ALLEGED VIOLATIONS OF THE SHERMAN ANTI-TRUST ACT.  THE INDICTMENT
ALLEGES TWO CONSPIRACIES.  THE FIRST, IN VIOLATION OF SEC. 1 OF THE
ACT, WAS TO RESTRAIN INTERSTATE TRADE AND COMMERCE BY FIXING AND
MAINTAINING ARBITRARY AND NON-COMPETITIVE PREMIUM RATES ON FIRE AND
SPECIFIED "ALLIED LINES"  FN1  OF INSURANCE IN ALABAMA, FLORIDA,
GEORGIA, NORTH CAROLINA, SOUTH CAROLINA, AND VIRGINIA; THE SECOND, IN
VIOLATION OF SEC. 2, WAS TO MONOPOLIZE TRADE AND COMMERCE IN THE SAME
LINES OF INSURANCE IN AND AMONG THE SAME STATES.  FN2 

THE INDICTMENT MAKES THE FOLLOWING CHARGES:  THE MEMBER COMPANIES OF
S.E.U.A. CONTROLLED 90 PER CENT OF THE FIRE INSURANCE AND "ALLIED
LINES" SOLD BY STOCK FIRE INSURANCE COMPANIES IN THE SIX STATES WHERE
THE CONSPIRACIES WERE CONSUMMATED.  FN3  BOTH CONSPIRACIES CONSISTED OF
A CONTINUING AGREEMENT AND CONCERT OF ACTION EFFECTUATED THROUGH
S.E.U.A.  THE CONSPIRATORS NOT ONLY FIXED PREMIUM RATES AND AGENTS'
COMMISSIONS, BUT EMPLOYED BOYCOTTS TOGETHER WITH OTHER TYPES OF
COERCION AND INTIMIDATION TO FORCE NON-MEMBER INSURANCE COMPANIES INTO
THE CONSPIRACIES, AND TO COMPEL PERSONS WHO NEEDED INSURANCE TO BUY
ONLY FROM S.E.U.A. MEMBERS ON S.E.U.A. TERMS.  COMPANIES NOT MEMBERS OF
S.E.U.A. WERE CUT OFF FROM THE OPPORTUNITY TO REINSURE THEIR RISKS, AND
THEIR SERVICES AND FACILITIES WERE DISPARAGED; INDEPENDENT SALES
AGENCIES WHO DEFIANTLY REPRESENTED NON-S.E.U.A. COMPANIES WERE PUNISHED
BY A WITHDRAWAL OF THE RIGHT TO REPRESENT THE MEMBERS OF S.E.U.A.; AND
PERSONS NEEDING INSURANCE WHO PURCHASED FROM NON-S.E.U.A. COMPANIES
WERE THREATENED WITH BOYCOTTS AND WITHDRAWAL OF ALL PATRONAGE.  THE TWO
CONSPIRACIES WERE EFFECTIVELY POLICED BY INSPECTION AND RATING BUREAUS
IN FIVE OF THE SIX STATES, TOGETHER WITH LOCAL BOARDS OF INSURANCE
AGENTS IN CERTAIN CITIES OF ALL SIX STATES. 

THE KIND OF INTERFERENCE WITH THE FREE PLAY OF COMPETITIVE FORCES
WITH WHICH THE APPELLEES ARE CHARGED IS EXACTLY THE TYPE OF CONDUCT
WHICH THE SHERMAN ACT HAS OUTLAWED FOR AMERICAN "TRADE OR COMMERCE"
AMONG THE STATES.  FN4  APPELLEES  FN5  HAVE NOT ARGUED OTHERWISE. 
THEIR DEFENSE, SET FORTH IN A DEMURRER, HAS BEEN THAT THEY ARE NOT
REQUIRED TO CONFORM TO THE STANDARDS OF BUSINESS CONDUCT ESTABLISHED BY
THE SHERMAN ACT BECAUSE "THE BUSINESS OF FIRE INSURANCE IS NOT
COMMERCE."  SUSTAINING THE DEMURRER, THE DISTRICT COURT HELD THAT "THE
BUSINESS OF INSURANCE IS NOT COMMERCE, EITHER INTRASTATE OR
INTERSTATE"; IT "IS NOT INTERSTATE COMMERCE OR INTERSTATE TRADE, THOUGH
IT MIGHT BE CONSIDERED A TRADE SUBJECT TO LOCAL LAWS, EITHER STATE OR
FEDERAL, WHERE THE COMMERCE CLAUSE IS NOT THE AUTHORITY RELIED UPON." 
51 F.SUPP.  712, 713, 714. 

THE DISTRICT COURT'S OPINION DOES NOT CONTAIN THE SLIGHTEST
INTIMATION THAT THE INDICTMENT WAS HELD DEFECTIVE ON A THEORY THAT IT
CHARGED THE APPELLEES WITH RESTRAINING AND MONOPOLIZING NOTHING BUT THE
MAKING OF LOCAL CONTRACTS.  THERE WAS NOT EVEN A DEMURRER ON THAT
GROUND.  THE DISTRICT COURT TREATED THE INDICTMENT AS CHARGING ILLEGAL
RESTRAINTS OF TRADE IN THE TOTAL "ACTIVITIES COMPLAINED OF AS
CONSTITUTING THE BUSINESS OF INSURANCE."  51 F.SUPP.  712, 713.  AND IN
GREAT DETAIL THE INDICTMENT SET OUT THESE TOTAL ACTIVITIES, OF WHICH
THE ACTUAL MAKING OF CONTRACTS WAS BUT A PART.  AS RECOGNIZED BY THE
DISTRICT COURT, THE INSURANCE BUSINESS DESCRIBED IN THE INDICTMENT
INCLUDED NOT ONLY THE EXECUTION OF INSURANCE CONTRACTS BUT ALSO
NEGOTIATIONS AND EVENTS PRIOR TO EXECUTION OF THE CONTRACTS AND THE
INNUMERABLE TRANSACTIONS NECESSARY TO PERFORMANCE OF THE CONTRACTS. 
ALL OF THESE ALLEGED TRANSACTIONS, WE SHALL HEREAFTER POINT OUT,
CONSTITUTED A SINGLE CONTINUOUS CHAIN OF EVENTS, MANY OF WHICH WERE
MULTISTATE IN CHARACTER, AND NONE OF WHICH, IF WE ACCEPT THE
ALLEGATIONS OF THE INDICTMENT, COULD POSSIBLY HAVE BEEN CONTINUED BUT
FOR THAT PART OF THEM WHICH MOVED BACK AND FORTH ACROSS STATE LINES. 
TRUE, MANY OF THE ACTIVITIES DESCRIBED IN THE INDICTMENT WHICH
CONSTITUTED THIS CHAIN OF EVENTS MIGHT, IF CONCEPTUALLY SEPARATED FROM
THAT FROM WHICH THEY ARE INSEPARABLE, BE REGARDED AS WHOLLY LOCAL.  BUT
THE DISTRICT COURT IN CONSTRUING THE INDICTMENT DID NOT ATTEMPT SUCH A
METAPHYSICAL SEPARATION.  LOOKING AT ALL THE TRANSACTIONS CHARGED, IT
FELT COMPELLED BY PREVIOUS DECISIONS OF THIS COURT TO HOLD THAT DESPITE
THE INTERSTATE CHARACTER OF MANY OF THEM "THE BUSINESS OF INSURANCE IS
NOT COMMERCE," AND THAT AS A CONSEQUENCE THIS "BUSINESS," CONTRACTS AND
ALL, COULD NOT BE "INTERSTATE COMMERCE" OR "INTERSTATE TRADE."  IN
OTHER WORDS, THE DISTRICT COURT HELD THE INDICTMENT BAD FOR THE SOLE
REASON THAT THE ENTIRE "BUSINESS OF INSURANCE" (NOT MERELY THE PART OF
THE BUSINESS IN WHICH CONTRACTS ARE PHYSICALLY EXECUTED) CAN NEVER
UNDER ANY POSSIBLE CIRCUMSTANCES BE "COMMERCE," AND THAT THEREFORE,
EVEN THOUGH AN INSURANCE COMPANY CONDUCTS A SUBSTANTIAL PART OF ITS
BUSINESS TRANSACTIONS ACROSS STATE LINES, IT IS NOT ENGAGED IN
"COMMERCE AMONG THE STATES" WITHIN THE MEANING OF EITHER THE COMMERCE
CLAUSE OR THE SHERMAN ANTI-TRUST ACT.  FN6  THEREFORE TO SAY THAT THE
INDICTMENT CHARGES NOTHING MORE THAN RESTRAINT AND MONOPOLY IN THE
"MERE FORMATION OF AN INSURANCE CONTRACT," AS HAS BEEN SUGGESTED IN
THIS COURT, IS TO GIVE IT A DIFFERENT AND NARROWER MEANING THAN DID THE
DISTRICT COURT,  - SOMETHING WE CANNOT DO CONSISTENTLY WITH THE
CRIMINAL APPEALS ACT WHICH PERMITS THE CASE TO COME HERE ON DIRECT
APPEAL.  FN7 

THE RECORD, THEN, PRESENTS TWO QUESTIONS AND NO OTHERS:  (1) WAS THE
SHERMAN ACT INTENDED TO PROHIBIT CONDUCT OF FIRE INSURANCE COMPANIES
WHICH RESTRAINS OR MONOPOLIZES THE INTERSTATE FIRE INSURANCE TRADE? 
(2) IF SO, DO FIRE INSURANCE TRANSACTIONS WHICH STRETCH ACROSS STATE
LINES CONSTITUTE "COMMERCE AMONG THE SEVERAL STATES" SO AS TO MAKE THEM
SUBJECT TO REGULATION BY CONGRESS UNDER THE COMMERCE CLAUSE?  SINCE IT
IS OUR CONCLUSION THAT THE SHERMAN ACT WAS INTENDED TO APPLY TO THE
FIRE INSURANCE BUSINESS WE SHALL, FOR CONVENIENCE OF DISCUSSION, FIRST
CONSIDER THE LATTER QUESTION. 

                                  I. 

ORDINARILY COURTS DO NOT CONSTRUE WORDS USED IN THE CONSTITUTION SO
AS TO GIVE THEM A MEANING MORE NARROW THAN ONE WHICH THEY HAD IN THE
COMMON PARLANCE OF THE TIMES IN WHICH THE CONSTITUTION WAS WRITTEN.  TO
HOLD THAT THE WORD "COMMERCE" AS USED IN THE COMMERCE CLAUSE DOES NOT
INCLUDE A BUSINESS SUCH AS INSURANCE WOULD DO JUST THAT.  WHATEVER
OTHER MEANINGS "COMMERCE" MAY HAVE INCLUDED IN 1787, THE DICTIONARIES,
ENCYCLOPEDIAS, AND OTHER BOOKS OF THE PERIOD SHOW THAT IT INCLUDED
TRADE:  BUSINESS IN WHICH PERSONS BOUGHT AND SOLD, BARGAINED AND
CONTRACTED N8.  AND THIS MEANING HAS PERSISTED TO MODERN TIMES. 
SURELY, THEREFORE, A HEAVY BURDEN IS ON HIM WHO ASSERTS THAT THE
PLENARY POWER WHICH THE COMMERCE CLAUSE GRANTS TO CONGRESS TO REGULATE
"COMMERCE AMONG THE SEVERAL STATES" DOES NOT INCLUDE THE POWER TO
REGULATE TRADING IN INSURANCE TO THE SAME EXTENT THAT IT INCLUDES POWER
TO REGULATE OTHER TRADES OR BUSINESSES CONDUCTED ACROSS STATE LINES. 
FN9 

THE MODERN INSURANCE BUSINESS HOLDS A COMMANDING POSITION IN THE
TRADE AND COMMERCE OF OUR NATION.  BUILT UPON THE SALE OF CONTRACTS OF
INDEMNITY, IT HAS BECOME ONE OF THE LARGEST AND MOST IMPORTANT BRANCHES
OF COMMERCE N10.  ITS TOTAL ASSETS EXCEED $37,000,000,000, OR THE
APPROXIMATE EQUIVALENT OF THE VALUE OF ALL FARM LANDS AND BUILDINGS IN
THE UNITED STATES.  FN11  ITS ANNUAL PREMIUM RECEIPTS EXCEED
$6,000,000,000, MORE THAN THE AVERAGE ANNUAL REVENUE RECEIPTS OF THE
UNITED STATES GOVERNMENT DURING THE LAST DECADE.  FN12  INCLUDED IN THE
LABOR FORCE OF INSURANCE ARE 524,000 EXPERIENCED WORKERS, ALMOST AS
MANY AS SEEK THEIR LIVINGS IN COAL MINING OR AUTOMOBILE MANUFACTURING. 
FN13  PERHAPS NO MODERN COMMERCIAL ENTERPRISE DIRECTLY AFFECTS SO MANY
PERSONS IN ALL WALKS OF LIFE AS DOES THE INSURANCE BUSINESS.  INSURANCE
TOUCHES THE HOME, THE FAMILY, AND THE OCCUPATION OR THE BUSINESS OF
ALMOST EVERY PERSON IN THE UNITED STATES.  FN14 

THIS BUSINESS IS NOT SEPARATED INTO 48 DISTINCT TERRITORIAL
COMPARTMENTS WHICH FUNCTION IN ISOLATION FROM EACH OTHER. 
INTERRELATIONSHIP, INTERDEPENDENCE, AND INTEGRATION OF ACTIVITIES IN
ALL THE STATES IN WHICH THEY OPERATE ARE PRACTICAL ASPECTS OF THE
INSURANCE COMPANIES' METHODS OF DOING BUSINESS.  A LARGE SHARE OF THE
INSURANCE BUSINESS IS CONCENTRATED IN A COMPARATIVELY FEW COMPANIES
LOCATED, FOR THE MOST PART, IN THE FINANCIAL CENTERS OF THE EAST.  FN15
PREMIUMS COLLECTED FROM POLICYHOLDERS IN EVERY PART OF THE UNITED
STATES FLOW INTO THESE COMPANIES FOR INVESTMENT.  AS POLICIES BECOME
PAYABLE, CHECKS AND DRAFTS FLOW BACK TO THE MANY STATES WHERE THE
POLICYHOLDERS RESIDE.  THE RESULT IS A CONTINUOUS AND INDIVISIBLE
STREAM OF INTERCOURSE AMONG THE STATES COMPOSED OF COLLECTIONS OF
PREMIUMS, PAYMENTS OF POLICY OBLIGATIONS, AND THE COUNTLESS DOCUMENTS
AND COMMUNICATIONS WHICH ARE ESSENTIAL TO THE NEGOTIATION AND EXECUTION
OF POLICY CONTRACTS.  INDIVIDUAL POLICYHOLDERS LIVING IN MANY DIFFERENT
STATES WHO OWN POLICIES IN A SINGLE COMPANY HAVE THEIR SEPARATE
INTERESTS BLENDED IN ONE ASSEMBLED FUND OF ASSETS UPON WHICH ALL ARE
EQUALLY DEPENDENT FOR PAYMENT OF THEIR POLICIES.  THE DECISIONS WHICH
THAT COMPANY MAKES AT ITS HOME OFFICE - THE RISKS IT INSURES, THE
PREMIUMS IT CHARGES, THE INVESTMENTS IT MAKES, THE LOSSES IT PAYS -
CONCERN NOT JUST THE PEOPLE OF THE STATE WHERE THE HOME OFFICE HAPPENS
TO BE LOCATED.  THEY CONCERN PEOPLE LIVING FAR BEYOND THE BOUNDARIES OF
THAT STATE. 

THAT THE FIRE INSURANCE TRANSACTIONS ALLEGED TO HAVE BEEN RESTRAINED
AND MONOPOLIZED BY APPELLEES FIT THE ABOVE DESCRIBED PATTERN OF THE
NATIONAL INSURANCE TRADE IS SHOWN BY THE INDICTMENT BEFORE US.  OF THE
NEARLY 200 COMBINING COMPANIES, CHARTERED IN VARIOUS STATES AND FOREIGN
COUNTRIES, ONLY 18 MAINTAINED THEIR HOME OFFICES IN ONE OF THE SIX
STATES IN WHICH THE S.E.U.A. OPERATED; AND 127 HAD HEADQUARTERS IN
EITHER NEW YORK, PENNSYLVANIA, OR CONNECTICUT.  DURING THE PERIOD 1931
1941 A TOTAL OF $488,000,000 IN PREMIUMS WAS COLLECTED BY LOCAL AGENTS
IN THE SIX STATES, MOST OF WHICH WAS TRANSMITTED TO HOME OFFICES IN
OTHER STATES; WHILE DURING THE SAME PERIOD $215,000,000 IN LOSSES WAS
PAID BY CHECKS OR DRAFTS SENT FROM THE HOME OFFICES TO THE COMPANIES'
LOCAL AGENTS FOR DELIVERY TO THE POLICYHOLDERS.  FN16  LOCAL AGENTS
SOLICITED PROSPECTS, UTILIZED POLICY FORMS SENT FROM HOME OFFICES, AND
MADE REGULAR REPORTS TO THEIR COMPANIES BY MAIL, TELEPHONE OR
TELEGRAPH.  SPECIAL TRAVELLING AGENTS SUPERVISED LOCAL OPERATIONS.  THE
INSURANCE SOLD BY MEMBERS OF S.E.U.A. COVERED NOT ONLY ALL KINDS OF
FIXED LOCAL PROPERTIES, BUT ALSO SUCH PROPERTIES AS STEAMBOATS, TUGS,
FERRIES, SHIPYARDS, WAREHOUSES, TERMINALS, TRUCKS, BUSSES, RAILROAD
EQUIPMENT AND ROLLING STOCK, AND MOVABLE GOODS OF ALL TYPES CARRIED IN
INTERSTATE AND FOREIGN COMMERCE BY EVERY MEDIA OF TRANSPORTATION. 

DESPITE ALL OF THIS, DESPITE THE FACT THAT MOST PERSONS, SPEAKING
FROM COMMON KNOWLEDGE, WOULD INSTANTLY SAY THAT OF COURSE SUCH A
BUSINESS IS ENGAGED IN TRADE AND COMMERCE, THE DISTRICT COURT FELT
COMPELLED BY DECISIONS OF THIS COURT TO CONCLUDE THAT THE INSURANCE
BUSINESS CAN NEVER BE TRADE OR COMMERCE WITHIN THE MEANING OF THE
COMMERCE CLAUSE.  WE MUST THEREFORE CONSIDER THESE DECISIONS. 

IN 1869 THIS COURT HELD, IN SUSTAINING A STATUTE OF VIRGINIA WHICH
REGULATED FOREIGN INSURANCE COMPANIES, THAT THE STATUTE DID NOT OFFEND
THE COMMERCE CLAUSE BECAUSE "ISSUING A POLICY OF INSURANCE IS NOT A
TRANSACTION OF COMMERCE."  PAUL V. VIRGINIA, 8 WALL.  168, 183.  FN17
SINCE THEN, IN SIMILAR CASES, THIS STATEMENT HAS BEEN REPEATED, AND HAS
BEEN BROADENED.  IN HOOPER V. CALIFORNIA, 155 U.S. 648, 654, 655,
DECIDED IN 1895, THE PAUL STATEMENT WAS REAFFIRMED, AND THE COURT ADDED
THAT, "THE BUSINESS OF INSURANCE IS NOT COMMERCE."  IN 1913 THE NEW
YORK LIFE INSURANCE COMPANY, PROTESTING AGAINST A MONTANA TAX,
CHALLENGED THESE BROAD STATEMENTS, STRONGLY URGING THAT ITS BUSINESS,
AT LEAST, WAS SO CONDUCTED AS TO BE ENGAGED IN INTERSTATE COMMERCE. 
BUT THE COURT AGAIN APPROVED THE PAUL STATEMENT AND HELD AGAINST THE
COMPANY, SAYING THAT "CONTRACTS OF INSURANCE ARE NOT COMMERCE AT ALL,
NEITHER STATE NOR INTERSTATE."  NEW YORK LIFE INS. CO. V. DEER LODGE
COUNTY, 231 U.S. 495, 503-504, 510.  FN18    IN ALL CASES IN WHICH THE
COURT HAS RELIED UPON THE PROPOSITION THAT "THE BUSINESS OF INSURANCE
IS NOT COMMERCE," ITS ATTENTION WAS FOCUSED ON THE VALIDITY OF STATE
STATUTES - THE EXTENT TO WHICH THE COMMERCE CLAUSE AUTOMATICALLY
DEPRIVED STATES OF THE POWER TO REGULATE THE INSURANCE BUSINESS.  SINCE
CONGRESS HAD AT NO TIME ATTEMPTED TO CONTROL THE INSURANCE BUSINESS,
INVALIDATION OF THE STATE STATUTES WOULD PRACTICALLY HAVE BEEN
EQUIVALENT TO GRANTING INSURANCE COMPANIES ENGAGED IN INTERSTATE
ACTIVITIES A BLANKET LICENSE TO OPERATE WITHOUT LEGAL RESTRAINT.  AS
EARLY AS 1866 THE INSURANCE TRADE, THOUGH STILL IN ITS INFANCY,  FN19
WAS SUBJECT TO WIDESPREAD ABUSES.  FN20  TO MEET THE IMPERATIVE NEED
FOR CORRECTION OF THESE ABUSES THE VARIOUS STATE LEGISLATURES,
INCLUDING THAT OF VIRGINIA, PASSED REGULATORY LEGISLATION.  FN21  PAUL
V. VIRGINIA UPHELD ONE OF VIRGINIA'S STATUTES.  TO UPHOLD INSURANCE
LAWS OF OTHER STATES, INCLUDING TAX LAWS, PAUL V. VIRGINIA'S
GENERALIZATION AND REASONING HAVE BEEN CONSISTENTLY ADHERED TO. 

TODAY, HOWEVER, WE ARE ASKED TO APPLY THIS REASONING, NOT TO UPHOLD
ANOTHER STATE LAW, BUT TO STRIKE DOWN AN ACT OF CONGRESS WHICH WAS
INTENDED TO REGULATE CERTAIN ASPECTS OF THE METHODS BY WHICH INTERSTATE
INSURANCE COMPANIES DO BUSINESS; AND, IN SO DOING, TO NARROW THE SCOPE
OF THE FEDERAL POWER TO REGULATE THE ACTIVITIES OF A GREAT BUSINESS
CARRIED ON BACK AND FORTH ACROSS STATE LINES.  BUT PAST DECISIONS OF
THIS COURT EMPHASIZE THAT LEGAL FORMULAE DEVISED TO UPHOLD STATE POWER
CANNOT UNCRITICALLY BE ACCEPTED AS TRUSTWORTHY GUIDES TO DETERMINE
CONGRESSIONAL POWER UNDER THE COMMERCE CLAUSE.  FN22  FURTHERMORE, THE
REASONS GIVEN IN SUPPORT OF THE GENERALIZATION THAT "THE BUSINESS OF
INSURANCE IS NOT COMMERCE" AND CAN NEVER BE CONDUCTED SO AS TO
CONSTITUTE "COMMERCE AMONG THE STATES" ARE INCONSISTENT WITH MANY
DECISIONS OF THIS COURT WHICH HAVE UPHELD FEDERAL STATUTES REGULATING
INTERSTATE COMMERCE UNDER THE COMMERCE CLAUSE.  FN23 

ONE REASON ADVANCED FOR THE RULE IN THE PAUL CASE HAS BEEN THAT
INSURANCE POLICIES "ARE NOT COMMODITIES TO BE SHIPPED OR FORWARDED FROM
ONE STATE TO ANOTHER."  FN24  BUT BOTH BEFORE AND SINCE PAUL V.
VIRGINIA THIS COURT HAS HELD THAT CONGRESS CAN REGULATE TRAFFIC THOUGH
IT CONSIST OF INTANGIBLES N25.  ANOTHER REASON MUCH STRESSED HAS BEEN
THAT INSURANCE POLICIES ARE MERE PERSONAL CONTRACTS SUBJECT TO THE LAWS
OF THE STATE WHERE EXECUTED.  BUT THIS REASON RESTS UPON A DISTINCTION
BETWEEN WHAT HAS BEEN CALLED "LOCAL" AND WHAT "INTERSTATE," A TYPE OF
MECHANICAL CRITERION WHICH THIS COURT HAS NOT DEEMED CONTROLLING IN THE
MEASUREMENT OF FEDERAL POWER.  CF. WICKARD V. FILBURN, 317 U.S. 111,
119-120; PARKER V. BROWN, 317 U.S. 341, 360.  WE MAY GRANT THAT A
CONTRACT OF INSURANCE, CONSIDERED AS A THING APART FROM NEGOTIATION AND
EXECUTION, DOES NOT ITSELF CONSTITUTE INTERSTATE COMMERCE.  CF. HALL V.
GEIGER-JONES CO., 242 U.S. 539, 557-558.  BUT IT DOES NOT FOLLOW FROM
THIS THAT THE COURT IS POWERLESS TO EXAMINE THE ENTIRE TRANSACTION, OF
WHICH THAT CONTRACT IS BUT A PART, IN ORDER TO DETERMINE WHETHER THERE
MAY BE A CHAIN OF EVENTS WHICH BECOMES INTERSTATE COMMERCE.  FN26  ONLY
BY TREATING THE CONGRESSIONAL POWER OVER COMMERCE AMONG THE STATES AS A
"TECHNICAL LEGAL CONCEPTION" RATHER THAN AS A "PRACTICAL ONE, DRAWN
FROM THE COURSE OF BUSINESS" COULD SUCH A CONCLUSION BE REACHED.  SWIFT
& CO. V. UNITED STATES, 196 U.S. 375, 398.  IN SHORT, A NATIONWIDE
BUSINESS IS NOT DEPRIVED OF ITS INTERSTATE CHARACTER MERELY BECAUSE IT
IS BUILT UPON SALES CONTRACTS WHICH ARE LOCAL IN NATURE.  WERE THE RULE
OTHERWISE, FEW BUSINESSES COULD BE SAID TO BE ENGAGED IN INTERSTATE
COMMERCE.  FN27 

ANOTHER REASON ADVANCED TO SUPPORT THE RESULT OF THE CASES WHICH
FOLLOW PAUL V. VIRGINIA HAS BEEN THAT, IF ANY ASPECTS OF THE BUSINESS
OF INSURANCE BE TREATED AS INTERSTATE COMMERCE, "THEN ALL CONTROL OVER
IT IS TAKEN FROM THE STATES AND THE LEGISLATIVE REGULATIONS WHICH THIS
COURT HAS HERETOFORE SUSTAINED MUST BE DECLARED INVALID."  FN28
ACCEPTED WITHOUT QUALIFICATION, THAT BROAD STATEMENT IS INCONSISTENT
WITH MANY DECISIONS OF THIS COURT.  IT IS SETTLED THAT, FOR
CONSTITUTIONAL PURPOSES, CERTAIN ACTIVITIES OF A BUSINESS MAY BE
INTRASTATE AND THEREFORE SUBJECT TO STATE CONTROL, WHILE OTHER
ACTIVITIES OF THE SAME BUSINESS MAY BE INTERSTATE AND THEREFORE SUBJECT
TO FEDERAL REGULATION.  FN29  AND THERE IS A WIDE RANGE OF BUSINESS AND
OTHER ACTIVITIES WHICH, THOUGH SUBJECT TO FEDERAL REGULATION, ARE SO
INTIMATELY RELATED TO LOCAL WELFARE THAT, IN THE ABSENCE OF
CONGRESSIONAL ACTION, THEY MAY BE REGULATED OR TAXED BY THE STATES. 
FN30  IN MARKING OUT THESE ACTIVITIES THE PRIMARY TEST APPLIED BY THE
COURT IS NOT THE MECHANICAL ONE OF WHETHER THE PARTICULAR ACTIVITY
AFFECTED BY THE STATE REGULATION IS PART OF INTERSTATE COMMERCE, BUT
RATHER WHETHER, IN EACH CASE, THE COMPETING DEMANDS OF THE STATE AND
NATIONAL INTERESTS INVOLVED CAN BE ACCOMMODATED.  FN31  AND THE FACT
THAT PARTICULAR PHASES OF AN INTERSTATE BUSINESS OR ACTIVITY HAVE LONG
BEEN REGULATED OR TAXED BY STATES HAS BEEN RECOGNIZED AS A STRONG
REASON WHY, IN THE CONTINUED ABSENCE OF CONFLICTING CONGRESSIONAL
ACTION, THE STATE REGULATORY AND TAX LAWS SHOULD BE DECLARED VALID. 
FN32 

THE REAL ANSWER TO THE QUESTION BEFORE US IS TO BE FOUND IN THE
COMMERCE CLAUSE ITSELF AND IN SOME OF THE GREAT CASES WHICH INTERPRET
IT.  MANY DECISIONS MAKE VIVID THE BROAD AND TRUE MEANING OF THAT
CLAUSE.  IT IS INTERSTATE COMMERCE SUBJECT TO REGULATION BY CONGRESS TO
CARRY LOTTERY TICKETS FROM STATE TO STATE.  LOTTERY CASE, 188 U.S. 321,
355.  SO ALSO IS IT INTERSTATE COMMERCE TO TRANSPORT A WOMAN FROM
LOUISIANA TO TEXAS IN A COMMON CARRIER, HOKE V. UNITED STATES, 227 U.S.
308, 320-323; TO CARRY ACROSS A STATE LINE IN A PRIVATE AUTOMOBILE FIVE
QUARTS OF WHISKEY INTENDED FOR PERSONAL CONSUMPTION, UNITED STATES V.
SIMPSON, 252 U.S. 465; TO DRIVE A STOLEN AUTOMOBILE FROM IOWA TO SOUTH
DAKOTA, BROOKS V. UNITED STATES, 267 U.S. 432, 436-439.  DISEASED
CATTLE RANGING BETWEEN GEORGIA AND FLORIDA ARE IN COMMERCE, THORNTON V.
UNITED STATES, 271 U.S. 414, 425; AND THE TRANSMISSION OF AN ELECTRICAL
IMPULSE OVER A TELEGRAPH LINE BETWEEN ALABAMA AND FLORIDA IS
INTERCOURSE AND SUBJECT TO PARAMOUNT FEDERAL REGULATION, PENSACOLA
TELEGRAPH CO. V. WESTERN UNION TELEGRAPH CO., 96 U.S. 1, 11.  NOT ONLY,
THEN, MAY TRANSACTIONS BE COMMERCE THOUGH NON-COMMERCIAL; THEY MAY BE
COMMERCE THOUGH ILLEGAL AND SPORADIC, AND THOUGH THEY DO NOT UTILIZE
COMMON CARRIERS OR CONCERN THE FLOW OF ANYTHING MORE TANGIBLE THAN
ELECTRONS AND INFORMATION.  THESE ACTIVITIES HAVING ALREADY BEEN HELD
TO CONSTITUTE INTERSTATE COMMERCE, AND PERSONS ENGAGED IN THEM
THEREFORE HAVING BEEN HELD SUBJECT TO FEDERAL REGULATION, IT WOULD
INDEED BE DIFFICULT NOW TO HOLD THAT NO ACTIVITIES OF ANY INSURANCE
COMPANY CAN EVER CONSTITUTE INTERSTATE COMMERCE SO AS TO MAKE IT
SUBJECT TO SUCH REGULATION; - ACTIVITIES WHICH, AS PART OF THE CONDUCT
OF A LEGITIMATE AND USEFUL COMMERCIAL ENTERPRISE, MAY EMBRACE
INTEGRATED OPERATIONS IN MANY STATES AND INVOLVE THE TRANSMISSION OF
GREAT QUANTITIES OF MONEY, DOCUMENTS, AND COMMUNICATIONS ACROSS DOZENS
OF STATE LINES. 

THE PRECISE BOUNDARY BETWEEN NATIONAL AND STATE POWER OVER COMMERCE
HAS NEVER YET BEEN, AND DOUBTLESS NEVER CAN BE, DELINEATED BY A SINGLE
ABSTRACT DEFINITION.  FN33  THE MOST WIDELY ACCEPTED GENERAL
DESCRIPTION OF THAT PART OF COMMERCE WHICH IS SUBJECT TO THE FEDERAL
POWER IS THAT GIVEN IN 1824 BY CHIEF JUSTICE MARSHALL IN GIBBONS V.
OGDEN, 9 WHEAT.  1, 189-190:  "COMMERCE, UNDOUBTEDLY, IS TRAFFIC, BUT
IT IS SOMETHING MORE:  IT IS INTERCOURSE.  IT DESCRIBES THE COMMERCIAL
INTERCOURSE BETWEEN NATIONS, AND PARTS OF NATIONS, IN ALL ITS
BRANCHES.  ...  " COMMERCE IS INTERSTATE, HE SAID, WHEN IT "CONCERNS
MORE STATES THAN ONE."  ID., 194.  NO DECISION OF THIS COURT HAS EVER
QUESTIONED THIS AS TOO COMPREHENSIVE A DESCRIPTION OF THE SUBJECT
MATTER OF THE COMMERCE CLAUSE.  FN34  TO ACCEPT A DESCRIPTION LESS
COMPREHENSIVE, THE COURT HAS RECOGNIZED, WOULD DEPRIVE THE CONGRESS OF
THAT FULL POWER NECESSARY TO ENABLE IT TO DISCHARGE ITS CONSTITUTIONAL
DUTY TO GOVERN COMMERCE AMONG THE STATES.  FN35 

THE POWER CONFINED TO CONGRESS BY THE COMMERCE CLAUSE IS DECLARED IN
THE FEDERALIST TO BE FOR THE PURPOSE OF SECURING THE "MAINTENANCE OF
HARMONY AND PROPER INTERCOURSE AMONG THE STATES."  FN36  BUT ITS
PURPOSE IS NOT CONFINED TO EMPOWERING CONGRESS WITH THE NEGATIVE
AUTHORITY TO LEGISLATE AGAINST STATE REGULATIONS OF COMMERCE DEEMED
INIMICAL TO THE NATIONAL INTEREST.  THE POWER GRANTED CONGRESS IS A
POSITIVE POWER.  IT IS THE POWER TO LEGISLATE CONCERNING TRANSACTIONS
WHICH, REACHING ACROSS STATE BOUNDARIES, AFFECT THE PEOPLE OF MORE
STATES THAN ONE; - TO GOVERN AFFAIRS WHICH THE INDIVIDUAL STATES, WITH
THEIR LIMITED TERRITORIAL JURISDICTIONS, ARE NOT FULLY CAPABLE OF
GOVERNING N37.  THIS FEDERAL POWER TO DETERMINE THE RULES OF
INTERCOURSE ACROSS STATE LINES WAS ESSENTIAL TO WELD A LOOSE
CONFEDERACY INTO A SINGLE, INDIVISIBLE NATION; ITS CONTINUED EXISTENCE
IS EQUALLY ESSENTIAL TO THE WELFARE OF THAT NATION.  FN38 

OUR BASIC RESPONSIBILITY IN INTERPRETING THE COMMERCE CLAUSE IS TO
MAKE CERTAIN THAT THE POWER TO GOVERN INTERCOURSE AMONG THE STATES
REMAINS WHERE THE CONSTITUTION PLACED IT.  THAT POWER, AS HELD BY THIS
COURT FROM THE BEGINNING, IS VESTED IN THE CONGRESS, AVAILABLE TO BE
EXERCISED FOR THE NATIONAL WELFARE AS CONGRESS SHALL DEEM NECESSARY. 
NO COMMERCIAL ENTERPRISE OF ANY KIND WHICH CONDUCTS ITS ACTIVITIES
ACROSS STATE LINES HAS BEEN HELD TO BE WHOLLY BEYOND THE REGULATORY
POWER OF CONGRESS UNDER THE COMMERCE CLAUSE.  WE CANNOT MAKE AN
EXCEPTION OF THE BUSINESS OF INSURANCE. 

                                 II. 

WE COME THEN TO THE CONTENTION, EARNESTLY PRESSED UPON US BY
APPELLEES, THAT CONGRESS DID NOT INTEND IN THE SHERMAN ACT TO EXERCISE
ITS POWER OVER THE INTERSTATE INSURANCE TRADE. 

CERTAINLY THE ACT'S LANGUAGE AFFORDS NO BASIS FOR THIS CONTENTION. 
DECLARED ILLEGAL IN SEC. 1 IS "EVERY CONTRACT, COMBINATION IN THE FORM
OF TRUST OR OTHERWISE, OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE
AMONG THE SEVERAL STATES  ...  "; AND "EVERY PERSON" WHO SHALL MAKE
SUCH A CONTRACT OR ENGAGE IN SUCH A COMBINATION OR CONSPIRACY IS DEEMED
GUILTY OF A MISDEMEANOR.  SECTION 2 IS NOT LESS SWEEPING.  "EVERY
PERSON" WHO MONOPOLIZES, OR ATTEMPTS TO MONOPOLIZE, OR CONSPIRES WITH
"ANY OTHER PERSON" TO MONOPOLIZE, "ANY PART OF THE TRADE OR COMMERCE
AMONG THE SEVERAL STATES" IS, LIKEWISE, DEEMED GUILTY OF A
MISDEMEANOR.  LANGUAGE MORE COMPREHENSIVE IS DIFFICULT TO CONCEIVE.  ON
ITS FACE IT SHOWS A CAREFULLY STUDIED ATTEMPT TO BRING WITHIN THE ACT
EVERY PERSON ENGAGED IN BUSINESS WHOSE ACTIVITIES MIGHT RESTRAIN OR
MONOPOLIZE COMMERCIAL INTERCOURSE AMONG THE STATES. 

A GENERAL APPLICATION OF THE ACT TO ALL COMBINATIONS OF BUSINESS AND
CAPITAL ORGANIZED TO SUPPRESS COMMERCIAL COMPETITION IS IN HARMONY WITH
THE SPIRIT AND IMPULSES OF THE TIMES WHICH GAVE IT BIRTH.  "TRUSTS" AND
"MONOPOLIES" WERE THE TERROR OF THE PERIOD.  FN39  THEIR POWER TO FIX
PRICES, TO RESTRICT PRODUCTION, TO CRUSH SMALL INDEPENDENT TRADERS, AND
TO CONCENTRATE LARGE POWER IN THE FEW TO THE DETRIMENT OF THE MANY,
WERE BUT SOME OF NUMEROUS EVILS ASCRIBED TO THEM.  FN40 THE ORGANIZED
OPPONENTS OF TRUSTS AIMED AT THE COMPLETE DESTRUCTION OF ALL BUSINESS
COMBINATIONS WHICH POSSESSED POTENTIAL POWER, OR HAD THE INTENT, TO
DESTROY COMPETITION IN WHATEVER THE PEOPLE NEEDED OR WANTED.  FN41  SO
GREAT WAS THE STRENGTH OF THE ANTI-TRUST FORCES THAT THE ISSUE OF
TRUSTS AND MONOPOLIES BECAME NON-PARTISAN.  THE QUESTION WAS NOT
WHETHER THEY SHOULD BE ABOLISHED, BUT HOW THIS PURPOSE COULD BEST BE
ACCOMPLISHED.  FN42 

COMBINATIONS OF INSURANCE COMPANIES WERE NOT EXEMPT FROM PUBLIC
HOSTILITY AGAINST THE TRUSTS.  BETWEEN 1885 AND 1912 TWENTY-THREE
STATES ENACTED LAWS FORBIDDING INSURANCE COMBINATIONS.  FN43 WHEN, IN
1911, ONE OF THESE STATE STATUTES WAS UNSUCCESSFULLY CHALLENGED IN THIS
COURT, THE COURT HAD THIS TO SAY:  "WE CAN WELL UNDERSTAND THAT FIRE
INSURANCE COMPANIES, ACTING TOGETHER, MAY HAVE OWNERS OF PROPERTY
PRACTICALLY AT THEIR MERCY IN THE MATTER OF RATES, AND MAY HAVE IT IN
THEIR POWER TO DEPRIVE THE PUBLIC GENERALLY OF THE ADVANTAGES FLOWING
FROM COMPETITION BETWEEN RIVAL ORGANIZATIONS ENGAGED IN THE BUSINESS OF
FIRE INSURANCE.  IN ORDER TO MEET THE EVILS OF SUCH COMBINATIONS OR
ASSOCIATIONS, THE STATE IS COMPETENT TO ADOPT APPROPRIATE REGULATIONS
THAT WILL TEND TO SUBSTITUTE COMPETITION IN THE PLACE OF COMBINATION OR
MONOPOLY."  GERMAN ALLIANCE INS. CO. V. HALE, 219 U.S. 307, 316.  FN44 

APPELLEES ARGUE THAT THE CONGRESS KNEW, AS DOUBTLESS SOME OF ITS
MEMBERS DID, THAT THIS COURT HAD PRIOR TO 1890 SAID THAT INSURANCE WAS
NOT COMMERCE AND WAS SUBJECT TO STATE REGULATION, AND THAT THEREFORE WE
SHOULD READ THE ACT AS THOUGH IT EXPRESSLY EXEMPTED THAT BUSINESS.  BUT
NEITHER BY REPORTS NOR BY STATEMENTS OF THE BILL'S SPONSORS OR OTHERS
WAS ANY PURPOSE TO EXEMPT INSURANCE COMPANIES REVEALED.  AND WE FAIL TO
FIND IN THE LEGISLATIVE HISTORY OF THE ACT AN EXPRESSION OF A CLEAR AND
UNEQUIVOCAL DESIRE OF CONGRESS TO LEGISLATE ONLY WITHIN THAT AREA
PREVIOUSLY DECLARED BY THIS COURT TO BE WITHIN THE FEDERAL POWER.  FN45
CF. HELVERING V. GRIFFITHS, 318 U.S. 371; PARKER V. MOTOR BOAT SALES,
314 U.S. 244.  WE HAVE BEEN SHOWN NOT ONE PIECE OF RELIABLE EVIDENCE
THAT THE CONGRESS OF 1890 INTENDED TO FREEZE THE PROSCRIPTION OF THE
SHERMAN ACT WITHIN THE MOLD OF THEN CURRENT JUDICIAL DECISIONS DEFINING
THE COMMERCE POWER.  ON THE CONTRARY, ALL THE ACCEPTABLE EVIDENCE
POINTS THE OTHER WAY.  THAT CONGRESS WANTED TO GO TO THE UTMOST EXTENT
OF ITS CONSTITUTIONAL POWER IN RESTRAINING TRUST AND MONOPOLY
AGREEMENTS SUCH AS THE INDICTMENT HERE CHARGES ADMITS OF LITTLE, IF
ANY, DOUBT.  FN46  THE PURPOSE WAS TO USE THAT POWER TO MAKE OF OURS,
SO FAR AS CONGRESS COULD UNDER OUR DUAL SYSTEM, A COMPETITIVE BUSINESS
ECONOMY.  FN47  NOR IS IT SUFFICIENT TO JUSTIFY OUR READING INTO THE
ACT AN EXEMPTION FOR INSURANCE THAT THE CONGRESS OF 1890 MAY HAVE KNOWN
THAT STATES ALREADY WERE REGULATING THE INSURANCE BUSINESS.  THE
CONGRESS OF 1890 ALSO KNEW THAT RAILROADS WERE SUBJECT TO REGULATION
NOT ONLY BY STATES BUT BY THE FEDERAL GOVERNMENT ITSELF, BUT THIS FACT
HAS BEEN HELD INSUFFICIENT TO BRING TO THE RAILROAD COMPANIES THE
INTERPRETATIVE EXEMPTION FROM THE SHERMAN ACT THEY HAVE SOUGHT.  UNITED
STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290, 314-315, 320
325. 

APPELLEES FURTHER ARGUE THAT, QUITE APART FROM WHAT THE SHERMAN ACT
MEANT IN 1890, THE SUCCEEDING CONGRESSES HAVE ACCEPTED AND APPROVED THE
DECISIONS OF THIS COURT THAT THE BUSINESS OF INSURANCE IS NOT
COMMERCE.  THEY CALL ATTENTION TO THE FACT THAT AT VARIOUS TIMES SINCE
1890 CONGRESS HAS REFUSED TO ENACT LEGISLATION PROVIDING FOR FEDERAL
REGULATION OF THE INSURANCE BUSINESS, AND THAT SEVERAL RESOLUTIONS
PROPOSING TO AMEND THE CONSTITUTION SPECIFICALLY TO AUTHORIZE FEDERAL
REGULATION OF INSURANCE HAVE FAILED OF PASSAGE.  IN ADDITION THEY
EMPHASIZE THAT, ALTHOUGH THE SHERMAN ACT HAS BEEN AMENDED SEVERAL
TIMES, NO AMENDMENTS HAVE BEEN ADOPTED WHICH SPECIFICALLY BRING
INSURANCE WITHIN THE ACT'S PROSCRIPTION.  THE GOVERNMENT, FOR ITS PART,
POINTS TO EVIDENCE THAT VARIOUS MEMBERS OF CONGRESS DURING THE PERIOD
1900-1914 CONSIDERED THERE WERE "TRUSTS" IN THE INSURANCE BUSINESS, AND
EXPRESSED THE VIEW THAT THE INSURANCE BUSINESS SHOULD BE SUBJECT TO THE
ANTI-TRUST LAWS.  FN48  IT ALSO POINTS OUT THAT IN THE MERCHANT MARINE
ACT OF 1920 CONGRESS SPECIFICALLY EXEMPTED CERTAIN CONDUCT OF MARINE
INSURANCE COMPANIES FROM THE "ANTI-TRUST" LAWS.  FN49 

THE MOST THAT CAN BE SAID OF ALL THIS EVIDENCE CONSIDERED TOGETHER IS
THAT IT IS INCONCLUSIVE AS TO ANY POINT HERE RELEVANT.  BY NO MEANS
DOES IT SHOW THAT THE CONGRESS OF 1890 SPECIFICALLY INTENDED TO EXEMPT
INSURANCE COMPANIES FROM THE ALL-INCLUSIVE SCOPE OF THE SHERMAN ACT. 
NOR CAN WE ATTACH SIGNIFICANCE TO THE OMISSION OF CONGRESS TO INCLUDE
IN ITS AMENDMENTS TO THE ACT AN EXPRESS STATEMENT THAT THE ACT COVERED
INSURANCE.  FROM THE BEGINNING CONGRESS HAS USED LANGUAGE BROAD ENOUGH
TO INCLUDE ALL BUSINESSES, AND NEVER HAS AMENDED THE ACT TO DEFINE
THESE BUSINESSES WITH PARTICULARITY.  AND THE FACT THAT SEVERAL
CONGRESSES SINCE 1890 HAVE FAILED TO ENACT PROPOSED LEGISLATION
PROVIDING FOR MORE OR LESS COMPREHENSIVE FEDERAL REGULATION OF
INSURANCE DOES NOT EVEN REMOTELY SUGGEST THAT ANY CONGRESS HAS HELD THE
VIEW THAT INSURANCE ALONE, OF ALL BUSINESSES, SHOULD BE PERMITTED TO
ENTER INTO COMBINATIONS FOR THE PURPOSE OF DESTROYING COMPETITION BY
COERCIVE AND INTIMIDATORY PRACTICES. 

FINALLY IT IS ARGUED AT GREAT LENGTH THAT VIRTUALLY ALL THE STATES
REGULATE THE INSURANCE BUSINESS ON THE THEORY THAT COMPETITION IN THE
FIELD OF INSURANCE IS DETRIMENTAL BOTH TO THE INSURERS AND THE INSURED,
AND THAT IF THE SHERMAN ACT BE HELD APPLICABLE TO INSURANCE MUCH OF
THIS STATE REGULATION WILL BE DESTROYED.  THE FIRST PART OF THIS
ARGUMENT IS BUTTRESSED BY OPINIONS EXPRESSED BY VARIOUS PERSONS THAT
UNRESTRICTED COMPETITION IN INSURANCE RESULTS IN FINANCIAL CHAOS AND
PUBLIC INJURY.  WHETHER COMPETITION IS A GOOD THING FOR THE INSURANCE
BUSINESS IS NOT FOR US TO CONSIDER.  HAVING POWER TO ENACT THE SHERMAN
ACT, CONGRESS DID SO; IF EXCEPTIONS ARE TO BE WRITTEN INTO THE ACT,
THEY MUST COME FROM THE CONGRESS, NOT THIS COURT.  AND AS WAS SAID IN
ANSWER TO A SIMILAR ARGUMENT THAT THE SHERMAN ACT SHOULD NOT BE APPLIED
TO A RAILROAD COMBINATION: 

"IT IS THE HISTORY OF MONOPOLIES IN THIS COUNTRY AND IN ENGLAND THAT
PREDICTIONS OF RUIN ARE HABITUALLY MADE BY THEM WHEN IT IS ATTEMPTED,
BY LEGISLATION, TO RESTRAIN THEIR OPERATIONS AND TO PROTECT THE PUBLIC
AGAINST THEIR EXACTIONS.  ... 

"BUT EVEN IF THE COURT SHARED THE GLOOMY FOREBODINGS IN WHICH THE
DEFENDANTS INDULGE, IT COULD NOT REFUSE TO RESPECT THE ACTION OF THE
LEGISLATIVE BRANCH OF THE GOVERNMENT IF WHAT IT HAS DONE IS WITHIN THE
LIMITS OF ITS CONSTITUTIONAL POWER.  THE SUGGESTIONS OF DISASTER TO
BUSINESS HAVE, WE APPREHEND, THEIR ORIGIN IN THE ZEAL OF PARTIES WHO
ARE OPPOSED TO THE POLICY UNDERLYING THE ACT OF CONGRESS OR ARE
INTERESTED IN THE RESULT OF THIS PARTICULAR CASE; AT ANY RATE, THE
SUGGESTIONS IMPLY THAT THE COURT MAY AND OUGHT TO REFUSE THE
ENFORCEMENT OF THE PROVISIONS OF THE ACT IF, IN ITS JUDGMENT, CONGRESS
WAS NOT WISE IN PRESCRIBING AS A RULE BY WHICH THE CONDUCT OF
INTERSTATE AND INTERNATIONAL COMMERCE IS TO BE GOVERNED, THAT EVERY
COMBINATION, WHATEVER ITS FORM, IN RESTRAINT OF SUCH COMMERCE AND THE
MONOPOLIZING OR ATTEMPTING TO MONOPOLIZE SUCH COMMERCE SHALL BE
ILLEGAL.  THESE, PLAINLY, ARE QUESTIONS AS TO THE POLICY OF LEGISLATION
WHICH BELONG TO ANOTHER DEPARTMENT, AND THIS COURT HAS NO FUNCTION TO
SUPERVISE SUCH LEGISLATION FROM THE STANDPOINT OF WISDOM OR POLICY. 
...  "  HARLAN, J., AFFIRMING DECREE, NORTHERN SECURITIES CO. V. UNITED
STATES, 193 U.S. 197, 351-352.  THE ARGUMENT THAT THE SHERMAN ACT
NECESSARILY INVALIDATES MANY STATE LAWS REGULATING INSURANCE WE REGARD
AS EXAGGERATED.  FEW STATES GO SO FAR AS TO PERMIT PRIVATE INSURANCE
COMPANIES, WITHOUT STATE SUPERVISION, TO AGREE UPON AND FIX UNIFORM
INSURANCE RATES.  CF. PARKER V. BROWN, 317 U.S. 341, 350-352.  NO
STATES AUTHORIZE COMBINATIONS OF INSURANCE COMPANIES TO COERCE,
INTIMIDATE, AND BOYCOTT COMPETITORS AND CONSUMERS IN THE MANNER HERE
ALLEGED, AND IT CANNOT BE THAT ANY COMPANIES HAVE ACQUIRED A VESTED
RIGHT TO ENGAGE IN SUCH DESTRUCTIVE BUSINESS PRACTICES.  FN50
REVERSED. 

FN1  THE "ALLIED LINES" OF INSURANCE HANDLED BY APPELLEES ARE
DESCRIBED IN THE INDICTMENT AS "INLAND NAVIGATION AND TRANSPORTATION,
INLAND MARINE, SPRINKLER LEAKAGE, EXPLOSION, WINDSTORM AND TORNADO,
EXTENDED COVERAGE, USE AND OCCUPANCY, AND RIOT AND CIVIL COMMOTION
INSURANCE." 

FN2  THE PERTINENT PROVISIONS OF SECS. 1 AND 2 OF THE ACT OF JULY 2,
1890, 26 STAT. 209, AS AMENDED, 15 U.S.C. SECS. 1 AND 2, COMMONLY KNOWN
AS THE SHERMAN ACT, ARE AS FOLLOWS: 

"SEC. 1.  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 HEREBY DECLARED TO BE
ILLEGAL:  ...  EVERY PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN
ANY COMBINATION OR CONSPIRACY DECLARED BY SECTIONS 1-7 OF THIS TITLE TO
BE ILLEGAL SHALL BE DEEMED GUILTY OF A MISDEMEANOR.  ... 

"SEC. 2.  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,  ...
" 

FN3  THE INDICTMENT DOES NOT STATE THE PROPORTION OF FIRE INSURANCE
AND "ALLIED LINES" SOLD BY STOCK COMPANIES, AS DISTINGUISHED FROM
MUTUALS, ETC., IN THE SIX STATES INVOLVED.  BUT IT DOES STATE THAT
"STOCK COMPANIES RECEIVE APPROXIMATELY 85% OF THE TOTAL PREMIUM INCOME
OF ALL FIRE INSURANCE COMPANIES OPERATING IN THE UNITED STATES." 

FN4  SEE, E.G., FASHION GUILD V. TRADE COMM'N, 312 U.S. 457, 465-468;
UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 210-224; SUNSHINE
ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 394; UNITED STATES V.
TRENTON POTTERIES CO., 273 U.S. 392, 395-402; UNITED STATES V. PATTEN,
226 U.S. 525; SWIFT & CO. V. UNITED STATES, 196 U.S. 375. 

FN5  THE APPELLEES INCLUDE ALL OF THE INDIVIDUALS AND COMPANIES NAMED
AS DEFENDANTS IN THE INDICTMENT EXCEPT THE UNIVERSAL INSURANCE COMPANY
AND THE KANSAS CITY FIRE AND MARINE INSURANCE COMPANY, NEITHER OF WHICH
JOINED IN THE DEMURRER TO THE INDICTMENT. 

FN6  ALTHOUGH THE DISTRICT COURT ALSO SUSTAINED TWO ADDITIONAL
GROUNDS OF DEMURRER (THAT THE INDICTMENT DID NOT STATE FACTS SUFFICIENT
TO CONSTITUTE A FEDERAL OFFENSE, AND THAT THE COURT LACKED JURISDICTION
OF THE SUBJECT MATTER), THE OPINION MAKES CLEAR IT DID SO BECAUSE OF
THE CONCLUSION THAT "THE BUSINESS OF INSURANCE IS NOT COMMERCE."  TWO
FURTHER GROUNDS OF DEMURRER, BASED UPON THE FIFTH, SIXTH, AND TENTH
AMENDMENTS, WERE NOT CONSIDERED BY THE DISTRICT COURT. 

FN7  SEE 56 STAT. 271 AMENDING 34 STAT. 1246; 18 U.S.C. 682; UNITED
STATES V. BORDEN CO., 308 U.S. 188, 192-193.  APPELLEES CONTEND THAT
THE DISTRICT COURT READ BOTH COUNTS OF THE INDICTMENT AS ALLEGING THAT
THE TRADE OR COMMERCE SOUGHT TO BE RESTRAINED AND MONOPOLIZED WAS THE
BUSINESS OF SELLING FIRE INSURANCE, THAT THE COURT RIGHTLY DECIDED THAT
SUCH BUSINESS WAS NOT COMMERCE, AND THAT THEREFORE ITS JUDGMENT SHOULD
BE AFFIRMED.  THE GOVERNMENT DENIES THAT THE COURT CONSTRUED THE
INDICTMENT SO NARROWLY.  IT INSISTS THAT THE FIRST COUNT OF THE
INDICTMENT CHARGES A VIOLATION OF SEC. 1 OF THE ACT REGARDLESS OF
WHETHER THE INSURANCE BUSINESS ITSELF BE COMMERCE, SINCE THAT COUNT
CHARGES THAT THE PRACTICES OF THE FIRE INSURANCE COMPANIES CONSTITUTED
AN UNLAWFUL RESTRAINT OF INTERSTATE TRADE OR COMMERCE IN SUCH FIELDS AS
TRANSPORTATION AND INDUSTRY WHICH MUST PURCHASE FIRE INSURANCE.  CF.
POLISH ALLIANCE V. LABOR BOARD, POST, P. 643.  IN THE VIEW WE TAKE OF
THE CASE IT IS UNNECESSARY TO PASS UPON THIS QUESTION.  WE CONSIDER THE
CASE ON THE ASSUMPTION THAT APPELLEES' CONTENTION ON THIS POINT IS
CORRECT. 

FN8  SEE GIBBONS V. OGDEN, 9 WHEAT.  1; ALSO, HAMILTON AND ADAIR, THE
POWER TO GOVERN (N.Y. 1937), PP. 53-63. 

FN9  ALEXANDER HAMILTON, IN 1791, STATING HIS OPINION ON THE
CONSTITUTIONALITY OF THE BANK OF THE UNITED STATES, DECLARED THAT IT
WOULD "ADMIT OF LITTLE IF ANY QUESTION" THAT THE FEDERAL POWER TO
REGULATE FOREIGN COMMERCE INCLUDED "THE REGULATION OF POLICIES OF
INSURANCE."  3 WORKS OF ALEXANDER HAMILTON (FED. ED., N.Y. 1904) PP.
445, 469-470.  SPEAKING OF THE NEED OF A FEDERAL POWER TO REGULATE
"COMMERCE," HAMILTON HAD EARLIER SAID, "IT IS, INDEED, EVIDENT, ON THE
MOST SUPERFICIAL VIEW, THAT THERE IS NO OBJECT, EITHER AS IT RESPECTS
THE INTERESTS OF TRADE OR FINANCE, THAT MORE STRONGLY DEMANDS A FEDERAL
SUPERINTENDENCE."  FEDERALIST NO. XXII, THE FEDERALIST (REV. ED., N.Y.
1901) 110. 

FN10  ACCORDING TO FIGURES GATHERED BY THE NATIONAL RESOURCES
COMMITTEE, EACH OF THE THREE LARGEST LEGAL RESERVE LIFE INSURANCE
COMPANIES IN 1935 HAD ASSETS GREATER THAN ANY ONE OF THE THREE LARGEST
INDUSTRIAL CORPORATIONS, VIZ., THE STANDARD OIL COMPANY OF NEW JERSEY,
THE UNITED STATES STEEL CORPORATION, OR THE GENERAL MOTORS
CORPORATION.  REPORT TO THE PRESIDENT BY THE NATIONAL RESOURCES
COMMITTEE, JUNE 9, 1939:  THE STRUCTURE OF THE AMERICAN ECONOMY, PART
I, PP. 100, 101(U.S. GOVERNMENT PRINTING OFFICE). 

FN11  U.S. DEPARTMENT OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED
STATES, 1942, PP. 335-342, 694. 

FN12  IBID., PP. 195, 335-342. 

FN13  SIXTEENTH CENSUS OF THE UNITED STATES - 1940; PART 1:  UNITED
STATES SUMMARY, VOL. III, THE LABOR FORCE, PP. 180, 181. 

FN14  "WE HAVE SHOWN THAT THE BUSINESS OF INSURANCE HAS VERY DEFINITE
CHARACTERISTICS, WITH A REACH OF INFLUENCE AND CONSEQUENCE BEYOND AND
DIFFERENT FROM THAT OF THE ORDINARY BUSINESSES OF THE COMMERCIAL WORLD,
TO PURSUE WHICH A GREATER LIBERTY MAY BE ASSERTED.  ...  INSURANCE  ...
IS PRACTICALLY A NECESSITY TO BUSINESS ACTIVITY AND ENTERPRISE.  IT
IS, THEREFORE, ESSENTIALLY DIFFERENT FROM ORDINARY COMMERCIAL
TRANSACTIONS, AND, AS WE HAVE SEEN, ACCORDING TO THE SENSE OF THE WORLD
FROM THE EARLIEST TIMES - CERTAINLY THE SENSE OF THE MODERN WORLD - IS
OF THE GREATEST PUBLIC CONCERN."  GERMAN ALLIANCE INS. CO. V. KANSAS,
233 U.S. 389, 414-415. 

FN15  THE FIVE LARGEST LEGAL RESERVE LIFE INSURANCE COMPANIES, OWNING
TOTAL ASSETS OF APPROXIMATELY $15,000,000,000, HAVE THEIR HOME OFFICES
IN OR NEAR NEW YORK CITY.  BEST'S LIFE REPORTS, 1939, AS SUMMARIZED IN
MONOGRAPH 28 PRINTED FOR THE USE OF THE TEMPORARY NATIONAL ECONOMIC
COMMITTEE, APPENDIX A (U.S. GOVERNMENT PRINTING OFFICE, 1940).  EACH OF
THESE COMPANIES IS LICENSED IN EVERY STATE OF THE UNION EXCEPT THAT TWO
OF THEM ARE NOT LICENSED IN TEXAS.  LIFE INSURANCE YEAR BOOK, 1942-3. 

THE FIVE LARGEST STOCK FIRE AND MARINE INSURANCE COMPANIES, OWNING
TOTAL ASSETS OF APPROXIMATELY $550,000,000, ARE SIMILARLY LOCATED. 
BEST'S 1943 DIGEST OF INSURANCE STOCKS, XXXII.  AND EACH DOES BUSINESS
IN EVERY STATE OF THE UNION.  IBID. 

FN16  THE AMOUNTS GIVEN AS PREMIUMS COLLECTED AND LOSSES PAID DURING
THE PERIOD 1931-1941 ARE FOR ALL STOCK FIRE INSURANCE COMPANIES
OPERATING IN THE SIX STATES INVOLVED.  THE COMPANIES WHICH WERE PARTIES
TO THE ALLEGED CONSPIRACIES PROBABLY COLLECTED AND PAID ABOUT 90% OF
THESE AMOUNTS SINCE THEY CONTROLLED THAT PERCENTAGE OF THE TOTAL
BUSINESS. 

FN17  "THE DEFECT OF THE ARGUMENT LIES IN THE CHARACTER OF THEIR
BUSINESS.  ISSUING A POLICY OF INSURANCE IS NOT A TRANSACTION OF
COMMERCE.  THE POLICIES ARE SIMPLE CONTRACTS OF INDEMNITY AGAINST LOSS
BY FIRE, ENTERED INTO BETWEEN THE CORPORATIONS AND THE ASSURED, FOR A
CONSIDERATION PAID BY THE LATTER.  THESE CONTRACTS ARE NOT ARTICLES OF
COMMERCE IN ANY PROPER MEANING OF THE WORD.  THEY ARE NOT SUBJECTS OF
TRADE AND BARTER OFFERED IN THE MARKET AS SOMETHING HAVING AN EXISTENCE
AND VALUE INDEPENDENT OF THE PARTIES TO THEM.  THEY ARE NOT COMMODITIES
TO BE SHIPPED OR FORWARDED FROM ONE STATE TO ANOTHER, AND THEN PUT UP
FOR SALE.  THEY ARE LIKE OTHER PERSONAL CONTRACTS BETWEEN PARTIES WHICH
ARE COMPLETED BY THEIR SIGNATURE AND THE TRANSFER OF THE
CONSIDERATION.  SUCH CONTRACTS ARE NOT INTER-STATE TRANSACTIONS, THOUGH
THE PARTIES MAY BE DOMICILED IN DIFFERENT STATES.  THE POLICIES DO NOT
TAKE EFFECT - ARE NOT EXECUTED CONTRACTS - UNTIL DELIVERED BY THE AGENT
IN VIRGINIA.  THEY ARE, THEN, LOCAL TRANSACTIONS, AND ARE GOVERNED BY
THE LOCAL LAW."  8 WALL.  168, 183.    FN18  OTHER CASES WHICH HAVE
REPEATED OR RELIED UPON THE PAUL GENERALIZATION ARE DUCAT V. CHICAGO,
10 WALL.  410, 415; LIVERPOOL INSURANCE CO. V. MASSACHUSETTS, 10 WALL. 
566, 573; PHILADELPHIA FIRE ASSN. V. NEW YORK, 119 U.S. 110, 118; NOBLE
V. MITCHELL, 164 U.S. 367, 370; NEW YORK LIFE INS. CO. V. CRAVENS, 178
U.S. 389, 401; NUTTING V. MASSACHUSETTS, 183 U.S. 553; NORTHWESTERN
MUTUAL LIFE INS. CO. V. WISCONSIN, 247 U.S. 132; NATIONAL UNION FIRE
INS. CO. V. WANBERG, 260 U.S. 71, 75; BOTHWELL V. BUCKBEE, MEARS CO.,
275 U.S. 274, 276-277; AND COLGATE V. HARVEY, 296 U.S. 404, 432.  FOR A
COLLECTION AND ANALYSIS OF THE CASES SEE GAVIT, THE COMMERCE CLAUSE OF
THE UNITED STATES CONSTITUTION (BLOOMINGTON, INDIANA, 1932), PP. 134
139. 

FN19  FOR STATISTICS ILLUSTRATIVE OF THE TREMENDOUS EXPANSION OF THE
FIRE AND MARINE INSURANCE BUSINESS BETWEEN 1860-1941, SEE NEW YORK
INSURANCE REPORT FOR 1942, VOL. II, TABLE A. IN 1860 FIRE AND MARINE
INSURANCE COMPANIES REPORTING TO THE NEW YORK SUPERINTENDENT OF
INSURANCE LISTED ASSETS OF $44,500,000 AND PREMIUMS WRITTEN OF
$13,500,000.  IN 1941 THEY LISTED ASSETS OF ALMOST $3,000,000,000, AND
PREMIUMS WRITTEN OF $1,150,000,000.  IBID. 

FN20  SEE GENERALLY INSURANCE BLUE BOOK (CENTENNIAL ISSUE 1876-77),
C. VI, "FIRE INSURANCE, 1860-1869"; PATTERSON, THE INSURANCE
COMMISSIONER IN THE UNITED STATES (CAMB.  1927), PP. 519-537; NEHEMKIS,
PAUL V. VIRGINIA, THE NEED FOR RE-EXAMINATION, 27 GEORGETOWN L.J.
519(1939). 

FN21  IBID. 

FN22  SEE, E.G., WICKARD V. FILBURN, 317 U.S. 111, 121-122; BINDERUP
V. PATHE EXCHANGE, 263 U.S. 291, 311; STAFFORD V. WALLACE, 258 U.S.
495, 525-528; BACON V. ILLINOIS, 227 U.S. 504, 516-517; SWIFT & CO. V.
UNITED STATES, 196 U.S. 375, 400. 

FN23  THAT THE DECISIONS OF THIS COURT UPHOLDING STATE INSURANCE LAWS
DO NOT NECESSARILY CONSTITUTE A DENIAL OF FEDERAL POWER TO REGULATE
INSURANCE HAS, UPON OCCASION, BEEN RECOGNIZED BOTH BY INSURANCE
EXECUTIVES AND LAWYERS.  SEE, FOR EXAMPLE, AN ADDRESS ON THE REGULATION
OF INSURANCE BY CONGRESS, BY JOHN F. DRYDEN, PRESIDENT, PRUDENTIAL
INSURANCE COMPANY OF AMERICA, DELIVERED NOVEMBER 22, 1904, PP. 12-13:
"THE DECISION (PAUL V. VIRGINIA), AND THOSE THAT HAVE FOLLOWED, DID NOT
RELATE TO THE REAL POINT INVOLVED IN A CONSIDERATION OF THE REGULATION
OF THE INSURANCE BUSINESS AS INTERSTATE COMMERCE BY THE FEDERAL
GOVERNMENT.  ...  IT IS THE OPINION OF QUALIFIED AUTHORITIES WHO HAVE
GIVEN MOST CAREFUL CONSIDERATION TO THIS ASPECT OF THE SUBJECT ...
THAT UNDER THE IMPLIED AND RESULTING POWERS OF THE CONSTITUTION THE
SUPREME COURT WOULD NOT WITHHOLD THE VERDICT OF CONSTITUTIONALITY FROM
AN ACT OF CONGRESS DECLARING INTERSTATE INSURANCE TO BE INTERSTATE
COMMERCE."  SEE, SIMILARLY, INSURANCE IS COMMERCE, BY GEORGE F. SEWARD,
PRESIDENT, THE FIDELITY AND CASUALTY COMPANY OF NEW YORK (1910) PP. 15
16; S.S. HUEBNER, FEDERAL SUPERVISION AND REGULATION OF INSURANCE,
ANNALS, AMER.  ACAD.  OF POL.  AND SOC. SCIENCE, VOL. XXVI, NO. 3(1905)
681-707.  BUT SEE, E.G., CONTRA:  VANCE, FEDERAL CONTROL OF INSURANCE
CORPORATIONS, 17 GREEN BAG (1905) 83, 89; RANDOLPH, OPINION ON THE
PROPOSAL FOR FEDERAL SUPERVISION OF INSURANCE (N.Y. 1905) PP. 12-20. 

THE REPORT OF THE COMMITTEE ON INSURANCE LAW OF THE AMERICAN BAR
ASSOCIATION, IN 1906, DISCUSSING THE CONSTITUTIONALITY OF FEDERAL
SUPERVISION OF INSURANCE, STATED FLATLY THAT PAUL V. VIRGINIA AND THE
CASES WHICH FOLLOW IT "DO NOT BAR CONGRESSIONAL ACTION."  REPORTS OF
AMERICAN BAR ASSOCIATION, VOL. XXIX, PART 1(1906), PP. 538, 552-567. 

FN24  SEE NOTE 17, SUPRA. 

FN25  SEE FOR ILLUSTRATION GIBBONS V. OGDEN, 9 WHEAT.  1, 189-190,
229-230; PENSACOLA TELEGRAPH CO. V. WESTERN UNION TELEGRAPH CO., 96
U.S. 1; LOTTERY CASE, 188 U.S. 321; JORDAN V. TASHIRO, 278 U.S. 123,
127-128; ELECTRIC BOND & SHARE CO. V. SECURITIES & EXCHANGE COMM'N, 303
U.S. 419, 432-433; AND AMERICAN MEDICAL ASSN. V. UNITED STATES, 317
U.S. 519. 

FN26  CF. HOOPESTON CANNING CO. V. CULLEN, 318 U.S. 313, 317.  "THE
CONTRACTS OF INSURANCE MAY BE SAID TO BE INTERDEPENDENT.  THEY CANNOT
BE REGARDED SINGLY, OR ISOLATEDLY, AND THE EFFECT OF THEIR RELATION IS
TO CREATE A FUND OF ASSURANCE AND CREDIT, THE COMPANIES BECOMING THE
DEPOSITORIES OF THE MONEY OF THE INSURED, POSSESSING GREAT POWER
THEREBY AND CHARGED WITH GREAT RESPONSIBILITY."  GERMAN ALLIANCE INS.
CO. V. KANSAS, 233 U.S. 389, 414.  AND SEE FURST V. BREWSTER, 282 U.S.
493, 497-498. 

FN27  APPRAISING THE SWIFT CASE, MR. CHIEF JUSTICE TAFT HAD THIS TO
SAY:  "THAT CASE WAS A MILESTONE IN THE INTERPRETATION OF THE COMMERCE
CLAUSE OF THE CONSTITUTION.  IT RECOGNIZED THE GREAT CHANGES AND
DEVELOPMENT IN THE BUSINESS OF THIS VAST COUNTRY AND DREW AGAIN THE
DIVIDING LINE BETWEEN INTERSTATE AND INTRASTATE COMMERCE WHERE THE
CONSTITUTION INTENDED IT TO BE.  IT REFUSED TO PERMIT LOCAL INCIDENTS
OF GREAT INTERSTATE MOVEMENT, WHICH TAKEN ALONE WERE INTRASTATE, TO
CHARACTERIZE THE MOVEMENT AS SUCH.  THE SWIFT CASE MERELY FITTED THE
COMMERCE CLAUSE TO THE REAL AND PRACTICAL ESSENCE OF MODERN BUSINESS
GROWTH."  CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1, 35. 

COMPARE INDIANA FARMER'S GUIDE CO. V. PRAIRIE FARMER CO., 293 U.S.
268, 274-277; STAFFORD V. WALLACE, 258 U.S. 495, 518-519. 

FN28  NEW YORK LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495,
509. 

FN29  SEE, E.G., CRUTCHER V. KENTUCKY, 141 U.S. 47, 59-61; ATLANTIC
REFINING CO. V. VIRGINIA, 302 U.S. 22, 26; MCGOLDRICK V. BERWIND-WHITE
CO., 309 U.S. 33. 

FN30  SEE GIBBONS V. OGDEN, 9 WHEAT.  1, 200, 203-210; WILLSON V.
BLACK BIRD CREEK MARSH CO., 2 PET. 245, 250-252; LICENSE CASES, 5 HOW. 
504, OPINION OF MR. CHIEF JUSTICE TANEY, 578-586; COOLEY V. BOARD OF
WARDENS, 12 HOW.  299, 318-321; KELLY V. WASHINGTON, 302 U.S. 1, 9-10. 
CF. STURGES V. CROWNINSHIELD, 4 WHEAT.  122, 192-196; HOUSTON V. MOORE,
5 WHEAT.  1, OPINION OF MR. JUSTICE STORY, 48-50. 

FN31  PARKER V. BROWN, 317 U.S. 341, 362-363; CF. CALIFORNIA V.
THOMPSON, 313 U.S. 109, 112-116; SOUTH CAROLINA STATE HIGHWAY DEPT. V.
BARNWELL BROTHERS, 303 U.S. 177, 184-192, AND CASES CITED THEREIN IN
FOOTNOTE 5; HALL V. GEIGER-JONES CO., 242 U.S. 539, 558-559; BOWMAN V.
CHICAGO & NORTH WESTERN RY. CO., 125 U.S. 465, 482-483.  THAT DIFFERENT
MEMBERS OF THE COURT APPLYING THIS TEST TO A PARTICULAR STATE STATUTE
MAY REACH OPPOSITE CONCLUSIONS AS TO ITS VALIDITY DOES NOT ARGUE
AGAINST THE CORRECTNESS OF THE TEST ITSELF.  SUCH DIFFERENCES IN
JUDGMENT ARE INEVITABLE WHERE SOLUTION OF A CONSTITUTIONAL PROBLEM MUST
DEPEND UPON CONSIDERED EVALUATION OF COMPETING CONSTITUTIONAL
OBJECTIVES.  SEE, E.G., MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33,
48, 59; MCCARROLL V. DIXIE GREYHOUND LINES, 309 U.S. 176, 183;
DUCKWORTH V. ARKANSAS, 314 U.S. 390, 397; CF. GWIN, WHITE & PRINCE V.
HENNEFORD, 305 U.S. 434, 442. 

FN32  SEE, E.G., COOLEY V. BOARD OF WARDENS, 12 HOW.  299; NEW YORK
LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495; CF. BOWMAN V. CHICAGO
& NORTH WESTERN RY. CO., 125 U.S. 465, 482-483. 

FN33  LOTTERY CASE, 188 U.S. 321, 363; CF. KIRSCHBAUM CO. V. WALLING,
316 U.S. 517, 520.  THIS PARTICULAR DIFFICULTY WAS RECOGNIZED BY THE
AUTHORS OF THE FEDERALIST PAPERS:  "ALL NEW LAWS, THOUGH PENNED WITH
THE GREATEST TECHNICAL SKILL, AND PASSED ON THE FULLEST AND MOST MATURE
DELIBERATION, ARE CONSIDERED AS MORE OR LESS OBSCURE AND EQUIVOCAL,
UNTIL THEIR MEANING BE LIQUIDATED AND ASCERTAINED BY A SERIES OF
PARTICULAR DISCUSSIONS AND ADJUDICATIONS.  ...  HERE, THEN, ARE THREE
SOURCES OF VAGUE AND INCORRECT DEFINITIONS:  INDISTINCTNESS OF THE
OBJECT, IMPERFECTION OF THE ORGAN OF CONCEPTION, INADEQUATENESS OF THE
VEHICLE OF IDEAS.  ANY ONE OF THESE MUST PRODUCE A CERTAIN DEGREE OF
OBSCURITY.  THE CONVENTION, IN DELINEATING THE BOUNDARY BETWEEN THE
FEDERAL AND STATE JURISDICTIONS MUST HAVE EXPERIENCED THE FULL EFFECT
OF THEM ALL."  FEDERALIST NO. XXXVI, THE FEDERALIST (REV. ED., N.Y.
1901), PP. 193-194. 

FN34  "COMMERCE IS INTERCOURSE:  ONE OF ITS MOST ORDINARY INGREDIENTS
IS TRAFFIC."  BROWN V. MARYLAND, 12 WHEAT.  419, 446.  "AND ALTHOUGH
COMMERCE INCLUDES TRAFFIC IN THIS NARROWER SENSE, FOR MORE THAN A
CENTURY IT HAS BEEN JUDICIALLY RECOGNIZED THAT IN A BROAD SENSE IT
EMBRACES EVERY PHASE OF COMMERCIAL AND BUSINESS ACTIVITY AND
INTERCOURSE."  JORDAN V. TASHIRO, 278 U.S. 123, 127-128. 

COMMERCE "COMPREHENDS INTERCOURSE FOR THE PURPOSES OF TRADE IN ANY
AND ALL ITS FORMS, INCLUDING THE TRANSPORTATION, PURCHASE, SALE, AND
EXCHANGE OF COMMODITIES.  ...  "  WELTON V. MISSOURI, 91 U.S. 275,
280.  AND "INTERCOURSE OR COMMUNICATION BETWEEN PERSONS IN DIFFERENT
STATES, BY MEANS OF CORRESPONDENCE THROUGH THE MAILS, IS COMMERCE AMONG
THE STATES WITHIN THE MEANING OF THE CONSTITUTION, ESPECIALLY WHERE
...  SUCH INTERCOURSE AND COMMUNICATION REALLY RELATES TO MATTERS OF
REGULAR, CONTINUOUS BUSINESS AND TO THE MAKING OF CONTRACTS AND THE
TRANSPORTATION OF BOOKS, PAPERS, ETC., APPERTAINING TO SUCH BUSINESS." 
INTERNATIONAL TEXTBOOK CO. V. PIGG, 217 U.S. 91, 107. 

FN35  SEE PENSACOLA TELEGRAPH CO. V. WESTERN UNION TELEGRAPH CO., 96
U.S. 1, 9. 

"A GOVERNMENT OUGHT TO CONTAIN IN ITSELF EVERY POWER REQUISITE TO THE
FULL ACCOMPLISHMENT OF THE OBJECTS COMMITTED TO ITS CARE, AND TO THE
COMPLETE EXECUTION OF THE TRUSTS FOR WHICH IT IS RESPONSIBLE, FREE FROM
EVERY OTHER CONTROL, BUT A REGARD TO THE PUBLIC GOOD AND TO THE SENSE
OF THE PEOPLE."  FEDERALIST NO. XXX, THE FEDERALIST, SUPRA, 154. 

FN36  FEDERALIST NO. XL; FEDERALIST NO. XLI; THE FEDERALIST, SUPRA,
PP. 220, 231. 

FN37  COMPARE FEDERALIST NO. XXIII, THE FEDERALIST, SUPRA, 121:
"SHALL THE UNION BE CONSTITUTED THE GUARDIAN OF THE COMMON SAFETY?  ARE
FLEETS AND ARMIES, AND REVENUES, NECESSARY TO THIS PURPOSE?  THE
GOVERNMENT OF THE UNION MUST BE EMPOWERED TO PASS ALL LAWS, AND TO MAKE
ALL REGULATIONS WHICH HAVE RELATION TO THEM.  THE SAME MUST BE THE CASE
IN RESPECT TO COMMERCE, AND TO EVERY OTHER MATTER TO WHICH ITS
JURISDICTION IS PERMITTED TO EXTEND.  ...  NOT TO CONFER IN EACH CASE A
DEGREE OF POWER COMMENSURATE TO THE END, WOULD BE TO VIOLATE THE MOST
OBVIOUS RULES OF PRUDENCE AND PROPRIETY, AND IMPROVIDENTLY TO TRUST THE
GREAT INTERESTS OF THE NATION TO HANDS WHICH ARE DISABLED FROM MANAGING
THEM WITH VIGOR AND SUCCESS." 

SEE NOTE (1943), 32 GEORGETOWN LAW JOURNAL 66. 

FN38  THE POWERS CONFERRED BY THE COMMERCE CLAUSE "ARE NOT CONFINED
TO THE INSTRUMENTALITIES OF COMMERCE  ...  KNOWN OR IN USE WHEN THE
CONSTITUTION WAS ADOPTED, BUT THEY KEEP PACE WITH THE PROGRESS OF THE
COUNTRY, AND ADAPT THEMSELVES TO THE NEW DEVELOPMENTS OF TIME AND
CIRCUMSTANCES.  ...  THEY WERE INTENDED FOR THE GOVERNMENT OF THE
BUSINESS TO WHICH THEY RELATE, AT ALL TIMES AND UNDER ALL
CIRCUMSTANCES."  PENSACOLA TELEGRAPH CO. V. WESTERN UNION TELEGRAPH
CO., 96 U.S. 1, 9.  COMPARE FEDERALIST NO. XLIII, THE FEDERALIST,
SUPRA, 248. 

FN39  A HISTORIAN OF THE WHEEL, ONE OF THE STRONGEST OF THE FARMERS'
ORGANIZATIONS IN THE '80'S, HAD THIS TO SAY ABOUT ITS ORIGIN:  "THE
QUESTION HAS OFTEN BEEN ASKED, WHAT GAVE RISE TO THE WHEEL?  THIS
QUESTION IS AS EASILY ANSWERED AS ASKED, MONOPOLY.  ...  MONOPOLY
ASPIRES TO MAKE THE PEOPLE ITS SERVANTS, POLITICALLY, FINANCIALLY AND
SOCIALLY, AND DEMANDS THAT WE OFFER ON ITS GOLDEN ALTAR ALL THAT WE ARE
AND HAVE, SOULS, BODIES, LIVES, LIBERTY, AND COMMON COUNTRY,
UNRESERVEDLY AND WITHOUT COMPLAINT."  MORGAN, HISTORY OF THE WHEEL AND
ALLIANCE (FORT SCOTT, KAN. 1889), P. 56.  COMPARE SLAUGHTER-HOUSE
CASES, 16 WALL.  36(1873), DISSENTING OPINIONS OF JUSTICES FIELD AND
BRADLEY, PP. 83, 101-110, 111, 119-121. 

FN40  SEE APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 491-493, 497-498;
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 58; UNITED STATES V.
TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290, 322-325.  SEE ALSO
PARAMOUNT FAMOUS LASKY CORP. V. UNITED STATES, 282 U.S. 30, 42-43. 

NOR WAS THE OPPOSITION TO TRUSTS LIMITED TO THE MONOPOLIZATION OF
"GOODS AND SERVICES."  AT THE INSTANCE OF SENATOR INGALLS OF KANSAS AN
AMENDMENT WAS ADDED TO THE SHERMAN BILL DESIGNED TO TAX OUT OF
EXISTENCE THE BUSINESS OF DEALING IN FUTURES CONTRACTS.  21 CONG. REC.
2613.  THE INGALLS AMENDMENT WAS ADOPTED BY THE SENATE WITHOUT A RECORD
VOTE.  ID.  SUBSEQUENTLY THE SHERMAN BILL, AS AMENDED, WAS REDRAFTED BY
THE SENATE JUDICIARY COMMITTEE WHICH USED SUBSTANTIALLY THE SAME BROAD
AND SWEEPING LANGUAGE WHICH SECTIONS 1 AND 2 OF THE ACT CONTAIN TODAY. 
WITH THAT LANGUAGE THE SHERMAN BILL HAD THE SUPPORT OF SENATOR INGALLS
AND OTHER PROPONENTS OF THE INGALLS AMENDMENT.  21 CONG. REC. 3145,
3153.  AND SEE UNITED STATES V. PATTEN, 226 U.S. 525; PETO V. HOWELL,
101 F.2D 353; CF. CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1; STAFFORD
V. WALLACE, 258 U.S. 495. 

SEE, GENERALLY, ASHBY, THE RIDDLE OF THE SPHINX (DES MOINES 1890);
MORGAN, HISTORY OF THE WHEEL AND ALLIANCE (FORT SCOTT, KAN. 1889);
BUCK, THE GRANGER MOVEMENT (CAMB.  1913); CLOUD, MONOPOLIES AND THE
PEOPLE (DAVENPORT, IOWA 1873); WEAVER, A CALL TO ACTION (DES MOINES
1892); HICKS, THE POPULIST REVOLT (MINNEAPOLIS 1931). 

FN41  REPRESENTATIVE OF ANTI-TRUST PLATFORMS, RESOLUTIONS, ETC., OF
CONTEMPORARY AGRARIAN-POLITICAL MOVEMENTS ARE THE FOLLOWING:  "WE
DEMAND  ...  THE PASSAGE OF A LAW PROHIBITING THE FORMATION OF TRUSTS
AND COMBINATIONS BY SPECULATORS TO SECURE CONTROL OF THE NECESSARIES OF
LIFE FOR THE PURPOSE OF FORCING UP PRICES ON CONSUMERS, IMPOSING HEAVY
PENALTIES" (TEXAS FARMERS' STATE ALLIANCE, REPORT OF COMMITTEE ON
INDUSTRIAL DEPRESSION (1888)); "THE OBJECTS OF THE NATIONAL ALLIANCE
ARE  ...  TO OPPOSE ALL FORMS OF MONOPOLY AS BEING DETRIMENTAL TO THE
BEST INTERESTS OF THE PUBLIC" (NATIONAL FARMERS' ALLIANCE, CONSTITUTION
(1887)); "WE HOLD TO THE PRINCIPLE THAT ALL MONOPOLIES ARE DANGEROUS
...  , TENDING TO ENSLAVE A FREE PEOPLE  ...  "  (NATIONAL FARMERS'
ALLIANCE AND INDUSTRIAL UNION, CONSTITUTION (1889)); "WE OPPOSE THE
TYRANNY OF MONOPOLIES" (NATIONAL GRANGE, DECLARATION OF PURPOSES
(1874)).    FN42  THE PLATFORMS OF BOTH THE REPUBLICAN AND THE
DEMOCRATIC PARTIES IN 1888 STATED UNQUALIFIED OPPOSITION TO MONOPOLIES
AND TRUSTS.  BRANDON, PLATFORMS OF THE TWO GREAT POLITICAL PARTIES 1856
1928.  THE RECORDED VOTE IN THE HOUSE ON THE FINAL CONFERENCE REPORT ON
THE SHERMAN ACT SHOWS 242 AYES, NO NAYS, AND 85 NOT VOTING.  21 CONG.
REC. 6314. 

FN43  FOUR OF THESE STATUTES WERE ENACTED BEFORE 1890.  L.N.H. 1885,
CH. 93, P. 289; L. OHIO 1885, NO. 284, P. 231; L. MICH. 1887, NO. 285,
P. 384; L. KAN. 1889, CH. 257, P. 389, AND L. KAN. 1897, CH. 265, P.
481; L. GA. 1890-91, NO. 745, P. 206; L. MAINE 1893, CH. 285, P. 339;
L. MO. 1895, P. 237; L. IOWA 1896, CH. 22, P. 31; L. ALA. 1896-97, NO.
634, P. 1428; L. NEB. 1897, CH. 79, P. 347; L. NEB. 1897, CH. 81, P.
354; L. NEB. 1913, CH. 154, PP. 393, 419; L. WIS. 1897, CH. 356, P.
908; ACTS VA. 1898, CH. 644, P. 683; ACTS S.C. 1902, NO. 574, P. 1057;
L.S.D. 1903, CH. 158, P. 183; G.L. TEX. 1903, CH. 94, P. 119; ARK. ACTS
1905, NO. 1, P. 1, AS AMENDED BY ARK. ACTS 1907, NO. 184, P. 430;
P.L.N.C. 1905, CH. 424, P. 429, AND P.L.N.C. 1915, CH. 166, P. 243;
ACTS TENN. 1905, CH. 479, P. 1019; MISS.  CODE 1906, SEC. 5002, ADOPTED
L. MISS.  1906, CH. 101, P. 78; GEN. L. ORE.  1909, CH. 230, PP. 388,
399; SESS. L. WASH. 1911, CH. 49, PP. 161, 195, AND SESS. L. WASH.
1915, CH. 97, P. 278; L. ARIZ. 1912, CH. 73, P. 354; ACTS LA. 1912, NO.
224, P. 509. 

FN44  THE FARM ORGANIZATIONS OF THIS PERIOD DID NOT RELY SOLELY UPON
PROHIBITORY LEGISLATION TO PROTECT THEMSELVES FROM COMBINATIONS OF
INSURANCE COMPANIES.  "IN 1886, TIRED OF THE EXTORTIONS OF THE OLD-LINE
INSURANCE COMPANIES, THE TERRITORIAL ALLIANCE APPOINTED A COMMITTEE
...  TO DEVISE AND PUT IN OPERATION A SYSTEM OF MUTUAL INSURANCE  ...
, THE RESULT OF WHICH HAS BEEN EMINENTLY SUCCESSFUL."  REPORT OF ALONZO
WARDALL, PRESIDENT OF THE ALLIANCE INSURANCE COMPANIES OF THE DAKOTAS,
PRINTED IN ASHBY, THE RIDDLE OF THE SPHINX (DES MOINES 1890), P. 363. 

FN45  WE HAVE BEEN POINTED TO ONLY ONE REFERENCE MADE TO THE BUSINESS
OF INSURANCE IN THE CONGRESSIONAL DISCUSSIONS PRECEDING PASSAGE OF THE
SHERMAN ACT, AND THAT IS A STATEMENT OF SENATOR TURPIE WHICH FLATLY
CHALLENGED THE REASONING OF THIS COURT IN HOLDING THAT INSURANCE WAS
NOT COMMERCE, AND FURTHER PREDICTED THAT IN THE FUTURE THE COMMERCE
CLAUSE WOULD NOT BE GIVEN SUCH A LIMITED CONSTRUCTION: 

"THE SENATOR FROM MISSOURI (MR. VEST) SPOKE THE OTHER DAY ABOUT THE
DIFFICULTY OF DEFINING THE WORD 'COMMERCE,' ESPECIALLY AS CONTAINED IN
THE PHRASE 'INTERSTATE COMMERCE.'  I RECOLLECT ONE JUDICIAL DECISION
UPON THIS SUBJECT VERY DEFINITELY.  THE SUPREME COURT HAS DECIDED THAT
INSURANCE IS NOT COMMERCE, AND I SUPPOSE BY FOLLOWING THE CIRCLE OF
NEGATIONS LONG ENOUGH AND EXCLUDING ALL THE THINGS NOT COMMERCE WE
SHOULD COME AT LAST TO THE RESIDUUM, WHICH MUST BE COMMERCE OR
INTERSTATE COMMERCE, BECAUSE IT CAN BE NOTHING ELSE.  A FORTIORI,
JUDGING FROM THIS PRINCIPLE, I SHOULD MYSELF HAVE DECIDED THAT
TRANSPORTATION IS NOT COMMERCE NOR INTERSTATE COMMERCE EITHER.  ... 

"I FEEL INCLINED TO MAKE THE PREDICTION, AS ONE OF THE THINGS TO COME
IN THIS VAST DOMAIN, SCARCELY TOUCHED, OF CASES ARISING UNDER THE
CONSTITUTION AND LAWS OF CONGRESS, THAT THE WHOLE MASS OF MERCHANTABLE
PAPER KNOWN AS NEGOTIABLE BY THE LAW MERCHANT, MADE AT ONE PLACE,
NEGOTIABLE AT ANOTHER, PAYABLE AT ANOTHER, TRANSCENDING IN ITS
NEGOTIATION STATE LINES, WILL BE REMITTED TO CONGRESSIONAL ACTION, AND
WITH RESPECT TO ITS CREATION, ITS FORMATION, ITS NEGOTIATION, WITH
RESPECT TO ALL THE RIGHTS AND LIABILITIES WHICH MAY ARISE UNDER IT, THE
PEOPLE, STUNNED WITH THE ETERNAL DISSONANCE OF CONFLICTING DECISIONS
AND JUDGMENTS OF FORTY-EIGHT OR FIFTY TRIBUNALS OF LAST RESORT IN THE
STATES UPON THE SUBJECT OF INTERSTATE NEGOTIABLE PAPER, WILL REQUIRE
CONGRESS TO ACT THEREIN, AND THAT, UNCONSTITUTIONAL AS I NOW DEEM IT OR
THINK IT, IT WILL AS A MATTER OF NECESSITY BE DONE, AND IN ANY SUCH
LEGISLATION WITH RESPECT TO THAT PAPER, THE WHOLE BULK OF IT, THE
PERSONAL AND PECULIAR CONDITIONS OF LITIGANTS WILL NOT BE INQUIRED
ABOUT, BUT SIMPLY WHETHER THE ONE PARTY OR THE OTHER IS ENTITLED TO
RELIEF OR LIABLE TO RECOVERY AGAINST HIM BY REASON OF BEING A PARTY TO
INTERSTATE COMMERCIAL PAPER, NEGOTIABLE AND PAYABLE AND SUABLE UNDER
THE ACTION OF CONGRESS WHICH MAY FINALLY TAKE PLACE UPON THAT SUBJECT. 
... 

"NOR DO I THINK WITH THE SENATOR FROM NEW YORK THAT WE ARE DISCHARGED
FROM DUTY OR RELEASED FROM OUR OBLIGATION TO LEGISLATE UPON THE SUBJECT
OF TRUSTS BECAUSE THE STATES HAVE A RIGHT TO DO SO."  21 CONG. REC.
2556-2557. 

AND SEE NOTE 48, INFRA. 

FN46  SENATOR GEORGE, A MEMBER OF THE SENATE JUDICIARY COMMITTEE
WHICH REDRAFTED THE SHERMAN ACT BEFORE ITS FINAL PASSAGE, STATED ON THE
FLOOR OF THE SENATE THAT, "THE BILL HAS BEEN VERY INGENIOUSLY AND
PROPERLY DRAWN TO COVER EVERY CASE WHICH COMES WITHIN WHAT IS CALLED
THE COMMERCIAL POWER OF CONGRESS.  ...  IT IS WELL KNOWN THAT THE GREAT
EVIL OF THESE COMBINATIONS, THESE CONSPIRACIES, AS THEY ARE CALLED,
THESE MONOPOLIES, AS THEY ARE DENOMINATED BY THE BILL, CONSISTS IN THE
FACT THAT BY COMBINATION, BY ASSOCIATION, THERE HAVE BEEN GATHERED
TOGETHER THE MONEY AND THE MEANS OF LARGE NUMBERS OF PERSONS, AND UNDER
THESE COMBINATIONS, OR CONSPIRACIES, OR TRUSTS, THIS GREAT AGGREGATED
CAPITAL IS WIELDED BY A SINGLE HAND AND GUIDED BY A SINGLE BRAIN, OR AT
LEAST BY HANDS AND BRAINS ACTING IN COMPLETE HARMONY AND CO-OPERATION,
AND THAT IN THIS WAY, BY THIS ASSOCIATION, BY THIS DIRECTION OF THIS
IMMENSE AMOUNT OF CAPITAL, BY ONE ORGANIZED WILL, TO A VERY LARGE
EXTENT, THESE WRONGS HAVE BEEN PERPETRATED UPON THE AMERICAN PEOPLE." 
21 CONG. REC. 3147. 

EARLIER, SENATOR SHERMAN HAD EXPLAINED, "I DO NOT WISH TO SINGLE OUT
ANY PARTICULAR TRUST OR COMBINATION.  IT IS NOT A PARTICULAR TRUST, BUT
THE SYSTEM I AIM AT."  21 CONG. REC. 2457.  AND IN THE HOUSE,
REPRESENTATIVE STEWART, DELIVERING THE LAST SPEECH PRECEDING THE
UNANIMOUS ADOPTION OF THE PRESENT ACT, STATED "  ...  THE PROVISIONS OF
THIS TRUST BILL ARE JUST AS BROAD, SWEEPING, AND EXPLICIT AS THE
ENGLISH LANGUAGE CAN MAKE THEM TO EXPRESS THE POWER OF CONGRESS OVER
THIS SUBJECT UNDER THE CONSTITUTION OF THE UNITED STATES.  ...  " 21
CONG. REC. 6314. 

COMPARE KIDD V. PEARSON, 128 U.S. 1 AND UNITED STATES V. E.C. KNIGHT
CO., 156 U.S. 1, WITH ADDYSTON PIPE & STEEL CO. V. UNITED STATES, 175
U.S. 211 AND UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106. 

FN47  SENATOR SHERMAN, EXPLAINING HIS BILL TO THE SENATE, STATED, "IT
IS TO ARM THE FEDERAL COURTS WITHIN THE LIMITS OF THEIR CONSTITUTIONAL
POWER THAT THEY MAY CO-OPERATE WITH THE STATE COURTS IN CHECKING,
CURBING, AND CONTROLLING THE MOST DANGEROUS COMBINATIONS THAT NOW
THREATEN THE BUSINESS, PROPERTY, AND TRADE OF THE PEOPLE OF THE UNITED
STATES."  21 CONG. REC. 2457. 

FN48  FOR EXAMPLE, THE FOLLOWING COLLOQUY OCCURRED IN THE HOUSE
DURING THE DEBATE IN PASSAGE OF THE CLAYTON ACT: 

"MR. BARTON.  WE HAD AN ILLUSTRATION RECENTLY WHERE A BIG FIRE
INSURANCE COMPANY CAME INTO THE STATE WHERE LOCAL INSURANCE COMPANIES
HAVE BEEN DOING BUSINESS, NOT CONFINED TO THE BORDER OF THE STATE, AND
CUT PRICES IN THAT IMMEDIATE LOCALITY UNTIL WE HAD IN THREE STATES 40
OR 50 LOCAL COMPANIES PUT OUT OF BUSINESS, AND THEN THE PRICE WAS PUT
BACK WHERE IT WAS PROFITABLE TO THE COMPANY.  MIGHT NOT THIS SAME
CONDITION EXIST WHERE WE STARTED A WHOLESALE HOUSE IN A STATE WHERE
THEIR TERRITORY WAS CONFINED TO THE STATE - MIGHT IT NOT BE A REDUCTION
OF PRICES FOR PUTTING THAT INSTITUTION OUT OF BUSINESS? 

"MR. WEBB.  IF THE PURPOSE IS TO WRONGFULLY INJURE OR DESTROY A
COMPETITOR, THIS SECTION WILL COVER SUCH PRACTICE; BUT INSURANCE
COMPANIES ARE NOT REACHED, AS THE SUPREME COURT HAS HELD THAT THEIR
CONTRACTS OR POLICIES ARE NOT INTERSTATE COMMERCE. 

"MR. BARTON.  IS IT NOT RIGHT THAT THEY SHOULD COME WITHIN THE LAW? 

"MR. WEBB.  YES."  51 CONG. REC. 9390. 

SO FAR AS APPEARS, THIS WAS THE ONLY MENTION OF THE INSURANCE CASES
DURING THE DISCUSSIONS LEADING TO PASSAGE OF THE CLAYTON ACT.  AND, AS
IN 1890, WHEN THE SHERMAN ACT WAS UNDER CONSIDERATION, THE REFERENCE TO
THESE CASES SHOWED DISSATISFACTION WITH THEM.  SEE NOTE 45, SUPRA. 

FN49  SEC. 29(B), 41 STAT. 988, 1000. 

FN50  WHETHER RELIANCE ON EARLIER STATEMENTS OF THIS COURT IN THE
PAUL V. VIRGINIA LINE OF CASES THAT INSURANCE IS NOT "COMMERCE" COULD
EVER BE PLEADED AS A DEFENSE TO A CRIMINAL PROSECUTION UNDER THE
SHERMAN ACT IS A QUESTION WHICH HAS BEEN SUGGESTED BUT ONE IT IS NOT
NECESSARY TO DISCUSS AT THIS TIME. 

MR. JUSTICE ROBERTS AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

THIS COURT HAS NEVER DOUBTED, AND I DO NOT DOUBT, THAT TRANSACTIONS
ACROSS STATE LINES WHICH OFTEN ATTEND AND ARE INCIDENTAL TO THE
FORMATION AND PERFORMANCE OF AN INSURANCE CONTRACT, SUCH AS THE USE OF
FACILITIES FOR INTERSTATE COMMUNICATION AND TRANSPORTATION, ARE ACTS OF
INTERSTATE COMMERCE SUBJECT TO REGULATION BY THE FEDERAL GOVERNMENT
UNDER THE COMMERCE CLAUSE.  NOR DO I DOUBT THAT THE BUSINESS OF
INSURANCE AS PRESENTLY CONDUCTED HAS IN MANY ASPECTS SUCH INTERSTATE
MANIFESTATIONS AND SUCH EFFECTS ON INTERSTATE COMMERCE AS MAY SUBJECT
IT TO THE APPROPRIATE EXERCISE OF FEDERAL POWER.  SEE POLISH ALLIANCE
V. LABOR BOARD, POST, P. 643. 

BUT SUCH ARE NOT THE QUESTIONS NOW BEFORE US.  WE ARE NOT CONCERNED
HERE WITH THE POWER OF CONGRESS TO DO WHAT IT HAS NOT ATTEMPTED TO DO,
BUT WITH THE QUESTION WHETHER CONGRESS IN ENACTING THE SHERMAN ACT HAS
ASSERTED ITS POWER OVER THE BUSINESS OF INSURANCE. 

THE QUESTIONS WHICH THE GOVERNMENT HAS RAISED, ADVISEDLY IT WOULD
SEEM (CF. NEW YORK LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495,
499), BY THE INDICTMENT IN THIS CASE, AS IT HAS BEEN INTERPRETED BY THE
DISTRICT COURT BELOW, ARE QUITE DIFFERENT FROM THE QUESTION, DISCUSSED
IN THE COURT'S OPINION, WHETHER THE INCIDENTAL USE OF THE FACILITIES OF
INTERSTATE COMMERCE AND TRANSPORTATION IN THE CONDUCT OF THE FIRE
INSURANCE BUSINESS RENDERS THE BUSINESS ITSELF "COMMERCE" WITHIN THE
MEANING OF THE SHERMAN ACT AND THE COMMERCE CLAUSE.  THE QUESTIONS HERE
ARE WHETHER THE BUSINESS OF ENTERING INTO CONTRACTS IN ONE STATE,
INSURING AGAINST THE RISK OF LOSS BY FIRE OF PROPERTY IN OTHERS, IS
ITSELF INTERSTATE COMMERCE; AND WHETHER AN AGREEMENT OR CONSPIRACY TO
FIX THE PREMIUM RATES OF SUCH CONTRACTS AND IN OTHER WAYS TO RESTRICT
COMPETITION IN EFFECTING POLICIES OF FIRE INSURANCE, VIOLATES THE
SHERMAN ACT.  THE COURT BELOW HAS ANSWERED "NO" TO BOTH OF THESE
QUESTIONS.  I THINK THAT ITS ANSWER IS RIGHT AND ITS JUDGMENT SHOULD BE
AFFIRMED, BOTH ON PRINCIPLE AND IN VIEW OF THE PERMANENCY WHICH SHOULD
BE GIVEN TO THE CONSTRUCTION OF THE COMMERCE CLAUSE AND THE SHERMAN ACT
IN THIS RESPECT, WHICH HAS UNTIL NOW BEEN CONSISTENTLY ADHERED TO BY
ALL BRANCHES OF THE GOVERNMENT. 

THE CASE COMES HERE ON DIRECT APPEAL BY THE GOVERNMENT FROM THE
DISTRICT COURT'S JUDGMENT DISMISSING THE INDICTMENT.  UNDER THE
PROVISIONS OF THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 682, THE ONLY
QUESTIONS OPEN FOR DECISION HERE ARE WHETHER THE DISTRICT COURT'S
CONSTRUCTIONS OF THE COMMERCE CLAUSE AND OF THE SHERMAN ACT, ON WHICH
IT RESTED ITS DECISION, ARE THE CORRECT ONES.  UNITED STATES V. BORDEN
CO., 308 U.S. 188, 193; UNITED STATES V. WAYNE PUMP CO., 317 U.S. 200,
208; UNITED STATES V. SWIFT & CO., 318 U.S. 442, 444. 

FOR THE PARTICULAR FACTS TO WHICH THE COURT BELOW APPLIED THE
CONSTITUTION AND THE SHERMAN ACT WE MUST LOOK TO THE INDICTMENT AS THE
DISTRICT COURT HAS CONSTRUED IT.  AND WE MUST ACCEPT THAT CONSTRUCTION,
FOR BY THE PROVISIONS OF THE CRIMINAL APPEALS ACT THE DISTRICT COURT'S
CONSTRUCTION OF THE INDICTMENT IS REVIEWABLE ON APPEAL NOT BY THIS
COURT BUT BY THE CIRCUIT COURT OF APPEALS.  UNITED STATES V. PATTEN,
226 U.S. 525, 535; UNITED STATES V. COLGATE & CO., 250 U.S. 300, 306;
UNITED STATES V. BORDEN CO., SUPRA. 

THE DISTRICT COURT POINTED OUT THAT THE OFFENSES CHARGED BY THE
INDICTMENT ARE A CONSPIRACY TO FIX ARBITRARY AND NON-COMPETITIVE
PREMIUM RATES ON FIRE INSURANCE SOLD IN SEVERAL NAMED STATES, AND BY
MEANS OF THAT CONSPIRACY TO RESTRAIN AND TO MONOPOLIZE TRADE AND
COMMERCE IN FIRE INSURANCE IN THOSE STATES.  THE COURT WENT ON TO SAY: 

"TO CONSTITUTE A VIOLATION OF THE SHERMAN ACT, THE RESTRAINT AND
MONOPOLY DENOUNCED MUST BE THAT OF INTERSTATE TRADE OR COMMERCE, AND,
UNLESS THE RESTRAINT AND MONOPOLY CHARGED IN THE INDICTMENT BE
RESTRAINT OR MONOPOLY IN INTERSTATE TRADE OR COMMERCE, THE INDICTMENT
MUST FALL. 

"IT IS NOT A QUESTION HERE OF WHETHER THE DEFENDANTS PARTICIPATED IN
SOME INCIDENTAL WAY IN INTERSTATE COMMERCE OR USED IN SOME INSTANCES
THE FACILITIES OF INTERSTATE COMMERCE, BUT IS RATHER WHETHER THE
ACTIVITIES COMPLAINED OF AS CONSTITUTING THE BUSINESS OF INSURANCE
WOULD THEMSELVES CONSTITUTE INTERSTATE TRADE OR COMMERCE, AND WHETHER
DEFENDANTS' METHOD OF CONDUCTING SAME AMOUNTED TO RESTRAINT OR MONOPOLY
OF SAME.  IT IS NOT A QUESTION AS TO WHETHER OR NOT CONGRESS HAD POWER
TO REGULATE THE INSURANCE COMPANIES OR SOME PHASES OF THEIR ACTIVITIES,
BUT RATHER WHETHER CONGRESS DID SO BY THE SHERMAN ACT.    "PERSONS MAY
BE ENGAGED IN INTERSTATE COMMERCE, YET, IF THE RESTRAINT OR MONOPOLY
COMPLAINED OF IS NOT ITSELF A RESTRAINT OR MONOPOLY OF INTERSTATE TRADE
OR COMMERCE, THEY MAY NOT BE CONVICTED OF VIOLATION OF THE SHERMAN
ACT.  THE FACT THAT THEY MAY USE THE MAILS AND INSTRUMENTALITIES OF
INTERSTATE COMMERCE AND COMMUNICATION, AND BE SUBJECT TO FEDERAL
REGULATIONS RELATING THERETO, WOULD NOT MAKE APPLICABLE THE SHERMAN ACT
TO INTERSTATE COMMERCE OR TO ACTIVITIES WHICH WERE NOT COMMERCE AT
ALL. 

"THE WHOLE CASE, THEREFORE, DEPENDS UPON THE QUESTION AS TO WHETHER OR
NOT THE BUSINESS OF INSURANCE IS INTERSTATE TRADE OR COMMERCE, AND IF
SO, WHETHER THE TRANSACTIONS ALLEGED IN THE INDICTMENT CONSTITUTE
INTERSTATE COMMERCE." 

IN SHORT THE DISTRICT COURT CONSTRUED THE INDICTMENT AS CHARGING
RESTRAINTS NOT IN THE INCIDENTAL USE OF THE MAILS OR OTHER
INSTRUMENTALITIES OF INTERSTATE COMMERCE, NOR IN THE INSURANCE OF GOODS
MOVING IN INTERSTATE COMMERCE, BUT IN THE "BUSINESS OF INSURANCE."  AND
BY THE "BUSINESS OF INSURANCE" IT NECESSARILY MEANT THE BUSINESS OF
WRITING CONTRACTS OF INSURANCE, FOR THE INDICTMENT CHARGES ONLY
RESTRAINTS IN ENTERING INTO SUCH CONTRACTS, NOT IN THEIR PERFORMANCE,
FN1  AND THE COURT DEEMED IT IRRELEVANT THAT IN THE NEGOTIATION AND
PERFORMANCE OF THE CONTRACTS APPELLEES "MAY USE THE MAILS AND
INSTRUMENTALITIES OF INTERSTATE COMMERCE."  IT HELD THAT THAT BUSINESS
IS NOT IN ITSELF INTERSTATE COMMERCE, AND THAT THE ALLEGED CONSPIRACIES
TO RESTRAIN AND TO MONOPOLIZE THAT BUSINESS WERE NOT, WITHOUT MORE, IN
RESTRAINT OF INTERSTATE COMMERCE AND CONSEQUENTLY WERE NOT VIOLATIONS
OF THE SHERMAN ACT. 

THIS CONSTRUCTION OF THE INDICTMENT AS CONFINED IN ITS SCOPE TO A
CONSPIRACY TO FIX PREMIUM RATES AND OTHERWISE RESTRAIN COMPETITION IN
THE BUSINESS OF WRITING INSURANCE CONTRACTS, AND TO MONOPOLIZE THAT
BUSINESS - A CONSTRUCTION REQUIRING DECISION OF THE QUESTION WHETHER
THAT BUSINESS IS INTERSTATE COMMERCE - IS ADOPTED BY THE GOVERNMENT. 
ITS BRIEF IN THIS COURT STATES THE "QUESTIONS PRESENTED" AS FOLLOWS: 

"1.  WHETHER THE FIRE INSURANCE BUSINESS IS IN COMMERCE. 

"2.  WHETHER THE FIRE INSURANCE BUSINESS IS SUBJECT TO THE
CONSTITUTIONAL POWER OF CONGRESS TO REGULATE COMMERCE AMONG THE SEVERAL
STATES. 

"3.  WHETHER, IF SO, THE SHERMAN ACT IS VIOLATED BY AN AGREEMENT
AMONG FIRE INSURANCE COMPANIES TO FIX AND MAINTAIN ARBITRARY AND NON
COMPETITIVE RATES AND TO MONOPOLIZE TRADE AND COMMERCE IN FIRE
INSURANCE, IN PART THROUGH BOYCOTTS DIRECTED AT COMPANIES NOT PART OF
THE CONSPIRACY AND THE AGENTS AND PURCHASERS OF INSURANCE WHO DEAL WITH
THEM." 

THE NUMEROUS AND UNVARYING DECISIONS OF THIS COURT THAT "INSURANCE IS
NOT COMMERCE"  FN2  HAVE NEVER DENIED THAT ACTS OF INTERSTATE COMMERCE
MAY BE INCIDENTAL TO THE BUSINESS OF WRITING AND PERFORMING CONTRACTS
OF INSURANCE, OR THAT THOSE INCIDENTAL ACTS ARE SUBJECT TO THE COMMERCE
POWER.  OUR DECISIONS ON THIS SUBJECT HAVE UNIFORMLY RESTED ON THE
GROUND THAT THE FORMATION OF AN INSURANCE CONTRACT, EVEN THOUGH IT
INSURES AGAINST RISK OF LOSS TO PROPERTY LOCATED IN OTHER STATES OR
MOVING IN INTERSTATE COMMERCE, IS NOT INTERSTATE COMMERCE, AND THAT
ALTHOUGH THE INCIDENTS OF INTERSTATE COMMUNICATION AND TRANSPORTATION
WHICH OFTEN ATTEND THE FORMATION AND PERFORMANCE OF AN INSURANCE
CONTRACT ARE INTERSTATE COMMERCE, THEY DO NOT SERVE TO RENDER THE
BUSINESS OF INSURANCE ITSELF INTERSTATE COMMERCE.  SEE HOOPER V.
CALIFORNIA, 155 U.S. 648, 655; NEW YORK LIFE INS. CO. V. DEER LODGE
COUNTY, 231 U.S. 495, 508-9. 

IF AN INSURANCE COMPANY IN NEW YORK EXECUTES AND DELIVERS, EITHER IN
THAT STATE OR ANOTHER, A POLICY INSURING THE OWNER OF A BUILDING IN NEW
JERSEY AGAINST LOSS BY FIRE, NO ACT OF INTERSTATE COMMERCE HAS
OCCURRED.  TRUE, IF THE OWNER COMES TO NEW YORK TO PROCURE THE
INSURANCE OR AFTER DELIVERY IN NEW YORK CARRIES THE POLICY TO NEW
JERSEY, OR THE COMPANY SENDS IT THERE BY MAIL OR MESSENGER, SUCH WOULD
BE ACTS OF INTERSTATE COMMERCE.  SIMILARLY IF THE OWNER PAYS THE
PREMIUMS BY MAIL TO THE COMPANY IN NEW YORK, OR THE COMPANY'S NEW
JERSEY AGENT SENDS THE PREMIUMS TO NEW YORK, OR THE COMPANY IN NEW YORK
SENDS MONEY TO NEW JERSEY ON THE OCCURRENCE OF THE LOSS INSURED
AGAINST, ACTS OF INTERSTATE COMMERCE WOULD OCCUR.  BUT THE POWER OF THE
CONGRESS TO REGULATE THEM IS DERIVED, NOT FROM ITS AUTHORITY TO
REGULATE THE BUSINESS OF INSURANCE, BUT FROM ITS POWER TO REGULATE
INTERSTATE COMMUNICATION AND TRANSPORTATION.  AND SUCH INCIDENTAL USE
OF THE FACILITIES OF INTERSTATE COMMERCE DOES NOT RENDER THE INSURANCE
BUSINESS ITSELF INTERSTATE COMMERCE.  NOR IS THE NATURE OF A SINGLE
INSURANCE TRANSACTION OR A FEW SUCH TRANSACTIONS NOT INVOLVING
INTERSTATE COMMERCE ALTERED IN THAT REGARD MERELY BECAUSE THEIR NUMBER
IS MULTIPLIED.  THE POWER OF CONGRESS TO REGULATE INTERSTATE
COMMUNICATION AND TRANSPORTATION INCIDENTAL TO THE INSURANCE BUSINESS
IS NOT ANY MORE OR ANY LESS BECAUSE THE NUMBER OF INSURANCE
TRANSACTIONS IS GREAT OR SMALL.  THE CONGRESSIONAL POWER TO REGULATE
DOES NOT EXTEND TO THE FORMATION AND PERFORMANCE OF INSURANCE CONTRACTS
SAVE ONLY AS THE LATTER MAY AFFECT COMMUNICATION AND TRANSPORTATION
WHICH ARE INTERSTATE COMMERCE OR MAY OTHERWISE BE FOUND BY CONGRESS TO
AFFECT TRANSACTIONS OF INTERSTATE COMMERCE.  AND EVEN THEN, SUCH
EFFECTS ON THE COMMERCE AS DO NOT INVOLVE RESTRAINTS IN COMPETITION IN
THE MARKETING OF GOODS AND SERVICES ARE NOT WITHIN THE REACH OF THE
SHERMAN ACT.  THAT SUCH ARE THE CONTROLLING PRINCIPLES HAS BEEN FULLY
RECOGNIZED BY THIS COURT IN THE NUMEROUS CASES WHICH HAVE HELD THAT THE
BUSINESS OF INSURANCE IS NOT COMMERCE OR AS SUCH SUBJECT TO THE
COMMERCE POWER.  SEE, FOR EXAMPLE, NEW YORK LIFE INS. CO. V. DEER LODGE
COUNTY, SUPRA, 508-9. 

THESE PRINCIPLES ARE NOT PECULIAR TO INSURANCE CONTRACTS.  THEY ARE
EQUALLY APPLICABLE TO OTHER TYPES OF CONTRACTS WHICH RELATE TO THINGS
OR EVENTS IN OTHER STATES THAN THAT OF THEIR EXECUTION, BUT WHICH DO
NOT CONTAIN ANY OBLIGATION TO ENGAGE IN ANY FORM OF INTERSTATE
COMMERCE.  THE PARTIES TO THEM ARE NOT ENGAGED IN INTERSTATE COMMERCE,
FOR SUCH COMMERCE IS NOT NECESSARILY INVOLVED IN OR PREREQUISITE TO THE
FORMATION OF SUCH CONTRACTS AND THEY DO NOT IN THEIR PERFORMANCE
NECESSARILY INVOLVE THE DOING OF INTERSTATE BUSINESS.  THE MERE
FORMATION OF A CONTRACT TO SELL AND DELIVER COTTON OR COAL OR CRUDE
RUBBER IS NOT IN ITSELF AN INTERSTATE TRANSACTION AND DOES NOT INVOLVE
ANY ACT OF INTERSTATE COMMERCE BECAUSE COTTON, COAL AND CRUDE RUBBER
ARE SUBJECTS OF INTERSTATE OR FOREIGN COMMERCE, OR BECAUSE IN FACT
PERFORMANCE OF THE CONTRACT MAY NOT BE EFFECTED WITHOUT SOME PRECEDENT
OR SUBSEQUENT MOVEMENT INTERSTATE OF THE COMMODITIES SOLD, OR BECAUSE
THERE MAY BE INCIDENTAL USE OF THE FACILITIES OF INTERSTATE COMMERCE OR
TRANSPORTATION IN THE FORMATION OF THE CONTRACT.  WARE & LELAND V.
MOBILE COUNTY, 209 U.S. 405, 411-13; WESTERN LIVE STOCK V. BUREAU OF
REVENUE, 303 U.S. 250, 253.  COMPARE DAHNKE-WALKER CO. V. BONDURANT,
257 U.S. 282, 292.  THAT THE PRINCIPLE UNDERLYING THAT CONCLUSION IS
THE SAME AS THAT UNDERLYING THE DECISIONS OF THIS COURT THAT THE
BUSINESS OF INSURANCE IS NOT INTERSTATE COMMERCE, HAS BEEN REPEATEDLY
RECOGNIZED AND AFFIRMED.  PAUL V. VIRGINIA, 8 WALL.  168, 183; HOOPER
V. CALIFORNIA, 155 U.S. 648, 654; WARE & LELAND V. MOBILE COUNTY,
SUPRA, 411; ENGEL V. O'MALLEY, 219 U.S. 128, 139; NEW YORK LIFE INS.
CO. V. DEER LODGE COUNTY, SUPRA, 511-12; BLUMENSTOCK BROS. V. CURTIS
PUBLISHING CO., 252 U.S. 436, 443; HILL V. WALLACE, 259 U.S. 44, 69;
CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1, 32-3; MOORE V. NEW YORK
COTTON EXCHANGE, 270 U.S. 593, 604; WESTERN LIVE STOCK V. BUREAU OF
REVENUE, SUPRA; AND SEE HOPKINS V. UNITED STATES, 171 U.S. 578, 588-9,
602. 

THE CONCLUSION THAT THE BUSINESS OF WRITING INSURANCE IS NOT
INTERSTATE COMMERCE COULD NOT RIGHTLY BE OTHERWISE UNLESS WE WERE TO
DEPART FROM THE UNIVERSALLY ACCEPTED VIEW THAT THE ACT OF MAKING ANY
CONTRACT WHICH DOES NOT STIPULATE FOR THE PERFORMANCE OF AN ACT OR
TRANSACTION OF INTERSTATE COMMERCE IS NOT IN ITSELF INTERSTATE
COMMERCE.  AND THIS HAS BEEN HELD TO BE TRUE EVEN THOUGH THE CONTRACT
BE EFFECTED BY EXCHANGE OF COMMUNICATIONS ACROSS STATE LINES, SEE NEW
YORK LIFE INS. CO. V. CRAVENS, 178 U.S. 389, 400; WARE & LELAND V.
MOBILE COUNTY, SUPRA; NEW YORK LIFE INS. CO. V. DEER LODGE COUNTY,
SUPRA, 509, A POINT WHICH NEED NOT BE CONSIDERED HERE FOR THE
INDICTMENT MAKES NO CHARGE THAT THE POLICIES WRITTEN BY APPELLEES ARE
THUS EFFECTED, BUT ALLEGES ONLY THAT THEY ARE "SOLD" BY THE DEFENDANTS
IN CERTAIN NAMED STATES. 

UNDOUBTEDLY CONTRACTS SO ENTERED INTO FOR THE SALE OF COMMODITIES
WHICH MOVE IN INTERSTATE COMMERCE MAY BECOME THE IMPLEMENTS FOR
RESTRAINTS IN MARKETING THOSE COMMODITIES, AND WHEN SO USED MAY FOR
THAT REASON BE WITHIN THE SHERMAN ACT, SEE NORTHERN SECURITIES CO. V.
UNITED STATES, 193 U.S. 197, 334, 338; UNITED STATES V. PATTEN, SUPRA,
543-4; STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163, 168-9.  COMPARE
THAMES & MERSEY INS. CO. V. UNITED STATES, 237 U.S. 19.  BUT IT IS
QUITE ANOTHER MATTER TO SAY THAT THE CONTRACTS ARE THEMSELVES
INTERSTATE COMMERCE OR THAT RESTRAINTS IN COMPETITION AS TO THEIR TERMS
OR CONDITIONS ARE WITHIN THE SHERMAN ACT, IN THE ABSENCE OF A SHOWING
THAT THE PURPOSE OR EFFECT IS TO RESTRAIN COMPETITION IN THE MARKETING
OF THE GOODS OR SERVICES TO WHICH THE CONTRACTS RELATE.  COMPARE HILL
V. WALLACE, SUPRA, 69, WITH CHICAGO BOARD OF TRADE V. OLSEN, SUPRA, 31
3; BLUMENSTOCK BROS. V. CURTIS PUBLISHING CO., SUPRA, WITH INDIANA
FARMER'S GUIDE CO. V. PRAIRIE FARMER CO., 293 U.S. 268; MOORE V. NEW
YORK COTTON EXCHANGE, SUPRA, WITH UNITED STATES V. PATTEN, SUPRA. 

IN THIS RESPECT INSURANCE CONTRACTS DO NOT IN POINT OF LAW STAND ON
ANY DIFFERENT FOOTING AS REGARDS THE SHERMAN ACT.  IF CONTRACTS OF
INSURANCE ARE IN FACT MADE THE INSTRUMENTS OF RESTRAINT IN THE
MARKETING OF GOODS AND SERVICES IN OR AFFECTING INTERSTATE COMMERCE,
THEY ARE NOT BEYOND THE REACH OF THE SHERMAN ACT MORE THAN CONTRACTS
FOR THE SALE OF COMMODITIES,  - CONTRACTS WHICH, NOT IN THEMSELVES
INTERSTATE COMMERCE, MAY NEVERTHELESS BE USED AS THE MEANS OF ITS
RESTRAINT.  BUT SINCE TRADE IN ARTICLES OF COMMERCE IS NOT THE SUBJECT
MATTER OF CONTRACTS OF INSURANCE, IT IS EVIDENT THAT NOT ONLY IS THE
WRITING OF INSURANCE POLICIES NOT INTERSTATE COMMERCE BUT THERE IS
LITTLE SCOPE FOR THEIR USE IN RESTRAINING COMPETITION IN THE MARKETING
OF GOODS AND SERVICES IN OR AFFECTING THE COMMERCE. 

THE CONTRACT OF INSURANCE MAKES NO STIPULATION FOR THE SALE OR
DELIVERY OF COMMODITIES IN INTERSTATE COMMERCE OR FOR ANY OTHER
INTERSTATE TRANSACTION.  IT PROVIDES ONLY FOR THE PAYMENT OF A SUM OF
MONEY IN THE EVENT OF THE LOSS INSURED AGAINST, AND IT IS NO NECESSARY
CONSEQUENCE OF THE ALLEGED RESTRAINTS ON COMPETITION IN FIXING PREMIUMS
THAT INTERSTATE COMMERCE WILL BE RESTRAINED.  WE HAVE NO OCCASION TO
CONSIDER THE ARGUMENT WHICH THE COURT BELOW REJECTED, THAT THE
INDICTMENT CHARGES THAT THE CONSPIRACY TO FIX PREMIUMS ADVERSELY
AFFECTS INTERSTATE COMMERCE BECAUSE IN SOME INSTANCES THE COMMODITIES
INSURED MOVE ACROSS STATE LINES, OR BECAUSE INTERSTATE COMMUNICATION
AND TRANSPORTATION ARE IN SOME INSTANCES INCIDENTAL TO THE BUSINESS OF
ISSUING INSURANCE CONTRACTS.  THIS IS SO BOTH BECAUSE, AS WE HAVE SAID,
WE ARE BOUND BY THE DISTRICT COURT'S CONSTRUCTION OF THE INDICTMENT,
AND, MORE IMPORTANTLY, BECAUSE SUCH EFFECTS ON INTERSTATE COMMERCE, AS
WILL PRESENTLY APPEAR, ARE NOT WITHIN THE REACH OF THE SHERMAN ACT. 

THE CONCLUSION SEEMS INESCAPABLE THAT THE FORMATION OF INSURANCE
CONTRACTS, LIKE MANY OTHERS, AND THE BUSINESS OF SO DOING, IS NOT,
WITHOUT MORE, COMMERCE WITHIN THE PROTECTION OF THE COMMERCE CLAUSE OF
THE CONSTITUTION AND THEREBY, IN LARGE MEASURE, EXCLUDED FROM STATE
CONTROL AND REGULATION.  SEE HOOPER V. CALIFORNIA, SUPRA, 655; NEW YORK
LIFE INS. CO. V. DEER LODGE COUNTY, SUPRA.  THIS CONCLUSION SEEMS, UPON
ANALYSIS, NOT ONLY CORRECT ON PRINCIPLE AND IN COMPLETE HARMONY WITH
THE UNIFORM RULINGS BY WHICH THIS COURT HAS HELD THAT THE FORMATION OF
ALL TYPES OF CONTRACT WHICH DO NOT STIPULATE FOR THE PERFORMANCE OF
ACTS OF INTERSTATE COMMERCE, ARE LIKEWISE NOT INTERSTATE COMMERCE, BUT
IT HAS THE SUPPORT OF AN UNBROKEN LINE OF DECISIONS OF THIS COURT
BEGINNING WITH PAUL V. VIRGINIA, SEVENTY-FIVE YEARS AGO, AND EXTENDING
DOWN TO THE PRESENT TIME.  IN 1913 THIS COURT WAS ASKED, ON ELABORATE
BRIEFS AND ARGUMENTS, SUCH AS ARE NOW ADDRESSED TO US, TO OVERRULE PAUL
V. VIRGINIA, SUPRA, AND THE MANY CASES WHICH HAVE FOLLOWED IT.  NEW
YORK LIFE INS. CO. V. DEER LODGE COUNTY, SUPRA.  SEE ALSO NEW YORK LIFE
INS. CO. V. CRAVENS, SUPRA.  IN THE DEER LODGE CASE THE MODE OF
CONDUCTING THE INSURANCE BUSINESS WAS ALMOST IDENTICAL WITH THAT
ALLEGED HERE (231 U.S. AT 499-500); IT WAS STRENUOUSLY URGED, AS HERE,
THAT BY REASON OF THE GREAT SIZE OF INSURANCE COMPANIES "MODERN LIFE
INSURANCE HAD TAKEN ON ESSENTIALLY A NATIONAL AND INTERNATIONAL
CHARACTER" (231 U.S. AT 507); AND, AS HERE, THAT THE USE OF THE MAILS
INCIDENT TO THE FORMATION OF THE CONTRACT AND THE INTERSTATE
TRANSMISSION OF PREMIUMS AND THE PROCEEDS OF THE POLICIES "CONSTITUTE
'A CURRENT OF COMMERCE AMONG THE STATES'" (231 U.S. AT 509).  ALL THESE
ARGUMENTS WERE REJECTED, AND THE BUSINESS OF INSURANCE WAS HELD NOT TO
BE INTERSTATE COMMERCE, ON THE GROUNDS WHICH WE HAVE STATED AND THINK
VALID - BUT WHICH THE GOVERNMENT'S BRIEF AND THE OPINION OF THE COURT
IN THIS CASE HAVE FAILED TO NOTICE.    IF THE BUSINESS OF ENTERING INTO
INSURANCE CONTRACTS IS NOT INTERSTATE COMMERCE, IT SEEMS PLAIN THAT
AGREEMENTS TO FIX PREMIUM RATES, OR OTHER RESTRAINTS ON COMPETITION IN
ENTERING INTO SUCH CONTRACTS, ARE NOT VIOLATIONS OF THE SHERMAN ACT. 
AS WE HAVE OFTEN HAD OCCASION TO POINT OUT, THE RESTRAINTS PROHIBITED
BY THE SHERMAN ACT ARE OF COMPETITION IN THE MARKETING OF GOODS OR
SERVICES WHENEVER THE COMPETITION OCCURS IN OR AFFECTS INTERSTATE
COMMERCE IN THOSE GOODS OR SERVICES.  SEE APEX HOSIERY CO. V. LEADER,
310 U.S. 469, 495-501, AND CASES CITED.  THE CONTRACT OF INSURANCE DOES
NOT UNDERTAKE TO SUPPLY OR MARKET GOODS OR SERVICES AND THERE IS NO
SUGGESTION THAT POLICIES OF INSURANCE WHEN ISSUED ARE ARTICLES OF
COMMERCE OR THAT AFTER THEIR ISSUE THEY ARE SOLD IN THE MARKET AS SUCH,
OR, IF THEY WERE, THAT THE FORMATION OF THE CONTRACT WOULD ITSELF BE
INTERSTATE COMMERCE.  SEE HOOPER V. CALIFORNIA, SUPRA; NEW YORK LIFE
INS. CO. V. DEER LODGE COUNTY, SUPRA, 510; CF. WARE & LELAND V. MOBILE
COUNTY, SUPRA; MOORE V. NEW YORK COTTON EXCHANGE, SUPRA. 

NO MORE DOES THE PERFORMANCE OF AN INSURANCE CONTRACT INVOLVING THE
PAYMENT OF PREMIUMS BY THE INSURED AND THE PAYMENT OF LOSSES BY THE
INSURER INVOLVE THE MARKETING OF GOODS OR SERVICES.  THE INDICTMENT
HERE, AS THE DISTRICT COURT POINTED OUT, CHARGES RESTRAINTS ON
COMPETITION IN FIXING THE TERMS AND CONDITIONS OF INSURANCE CONTRACTS. 
AND EVEN IF WE ASSUME, ALTHOUGH THE DISTRICT COURT DID NOT MENTION IT,
THAT THE INDICTMENT ALSO CHARGES RESTRAINTS ON THE PERFORMANCE OF SUCH
CONTRACTS, IT IS PLAIN THAT SUCH RESTRAINTS ON THE PERFORMANCE AS WELL
AS THE FORMATION OF THE CONTRACTS CANNOT OPERATE AS RESTRAINTS ON
COMPETITION IN THE MARKETING OF GOODS OR SERVICES.  SUCH RESTRAINTS ARE
NOT WITHIN THE PURVIEW OF THE SHERMAN ACT.  COMPARE FEDERAL CLUB V.
NATIONAL LEAGUE, 259 U.S. 200, 209; UNITED MINE WORKERS V. CORONADO
COAL CO., 259 U.S. 344, 410-411; BLUMENSTOCK BROS. V. CURTIS PUBLISHING
CO., SUPRA; MOORE V. NEW YORK COTTON EXCHANGE, SUPRA.  THE PRACTICE OF
LAW IS NOT COMMERCE, NOR, AT LEAST OUTSIDE THE DISTRICT OF COLUMBIA, IS
IT SUBJECT TO THE SHERMAN ACT, AND IT DOES NOT BECOME SO BECAUSE A LAW
FIRM ATTRACTS CLIENTS FROM WITHOUT THE STATE OR SENDS ITS MEMBERS OR
JUNIORS TO OTHER STATES TO ARGUE CASES, OR BECAUSE ITS CLIENTS USE THE
INTERSTATE MAILS TO PAY THEIR FEES.  FEDERAL CLUB V. NATIONAL LEAGUE,
SUPRA. 

IT WOULD BE STRANGE, INDEED, IF CONGRESS, IN ADOPTING THE SHERMAN ACT
IN 1890, MORE THAN TWENTY YEARS AFTER THIS COURT HAD SUPPOSEDLY SETTLED
THE QUESTION, HAD CONSIDERED THAT THE BUSINESS OF INSURANCE WAS
INTERSTATE COMMERCE OR HAD CONTEMPLATED THAT THE SHERMAN ACT WAS TO
APPLY TO IT. NOTHING IN ITS LEGISLATIVE HISTORY SUGGESTS THAT IT WAS
INTENDED TO APPLY TO THE BUSINESS OF INSURANCE.  FN3  THE LEGISLATIVE
MATERIALS INDICATE THAT CONGRESS WAS PRIMARILY CONCERNED WITH
RESTRAINTS OF COMPETITION IN THE MARKETING OF GOODS SOLD IN INTERSTATE
COMMERCE, WHICH WERE CLEARLY WITHIN THE FEDERAL COMMERCE POWER.  FN4
AND WHILE THE ACT IS NOT LIMITED TO RESTRAINTS OF COMMERCE IN PHYSICAL
GOODS, SEE E.G., ATLANTIC CLEANERS & DYERS V. UNITED STATES, 286 U.S.
427, THERE IS NO REASON TO SUPPOSE THAT CONGRESS INTENDED THE ACT TO
APPLY TO MATTERS IN WHICH, UNDER PREVAILING DECISIONS OF THIS COURT,
COMMERCE WAS NOT INVOLVED.  ON THE CONTRARY THE HOUSE COMMITTEE, IN
REPORTING THE BILL WHICH WAS ADOPTED WITHOUT CHANGE, DECLARED:  "NO
ATTEMPT IS MADE TO INVADE THE LEGISLATIVE AUTHORITY OF THE SEVERAL
STATES OR EVEN TO OCCUPY DOUBTFUL GROUNDS.  NO SYSTEM OF LAWS CAN BE
DEVISED BY CONGRESS ALONE WHICH WOULD EFFECTUALLY PROTECT THE PEOPLE OF
THE UNITED STATES AGAINST THE EVILS AND OPPRESSION OF TRUSTS AND
MONOPOLIES.  CONGRESS HAS NO AUTHORITY TO DEAL, GENERALLY, WITH THE
SUBJECT WITHIN THE STATES, AND THE STATES HAVE NO AUTHORITY TO
LEGISLATE IN RESPECT OF COMMERCE BETWEEN THE SEVERAL STATES OR WITH
FOREIGN NATIONS."  FN5 

IN 1904 AND AGAIN IN 1905 PRESIDENT ROOSEVELT URGED "THAT THE
CONGRESS CAREFULLY CONSIDER WHETHER THE POWER OF THE BUREAU OF
CORPORATIONS CANNOT CONSTITUTIONALLY BE EXTENDED TO COVER INTERSTATE
TRANSACTIONS IN INSURANCE."  FN6  THE AMERICAN BAR ASSOCIATION,
EXECUTIVES OF LEADING INSURANCE COMPANIES, AND OTHERS JOINED IN THE
REQUEST.  FN7  NUMEROUS BILLS PROVIDING FOR FEDERAL REGULATION OF
VARIOUS ASPECTS OF THE INSURANCE BUSINESS WERE INTRODUCED BETWEEN 1902
AND 1906  FN8 BUT THE JUDICIARY COMMITTEES OF BOTH HOUSE AND SENATE
CONCLUDED THAT THE REGULATION OF THE BUSINESS OF MARINE, FIRE AND LIFE
INSURANCE WAS BEYOND CONGRESSIONAL POWER.  SEN. REP. NO. 4406, 59TH
CONG., 1ST SESS.; H.R. REP. NO. 2491, 59TH CONG., 1ST SESS., 12-25. 
THE HOUSE COMMITTEE STATED THAT "THE QUESTION AS TO WHETHER OR NOT
INSURANCE IS COMMERCE HAS PASSED BEYOND THE REALM OF ARGUMENT, BECAUSE
THE SUPREME COURT OF THE UNITED STATES HAS SAID MANY TIMES FOR A GREAT
NUMBER OF YEARS THAT INSURANCE IS NOT COMMERCE."  (P. 13.)  FN9 

AND WHEN IN 1914, ONE YEAR AFTER THE DECISION IN NEW YORK LIFE INS.
CO. V. DEER LODGE COUNTY, SUPRA, CONGRESS BY THE CLAYTON ACT, 38 STAT.
730, AMENDED THE SHERMAN ACT AND DEFINED THE TERM "COMMERCE" AS USED IN
THAT ACT, IT GAVE NO INDICATION THAT IT QUESTIONED OR DESIRED THIS
COURT TO OVERRULE THE DECISION OF THE DEER LODGE CASE AND THOSE
PRECEDING IT.  ON THE CONTRARY MR. WEBB, WHO WAS IN CHARGE OF THE BILL
IN THE HOUSE OF REPRESENTATIVES, STATED THAT "INSURANCE COMPANIES ARE
NOT REACHED AS THE SUPREME COURT HAS HELD THAT THEIR CONTRACTS OR
POLICIES ARE NOT INTERSTATE COMMERCE."  51 CONG. REC. 9390.  FN10 

THIS COURT, THROUGHOUT THE SEVENTY-FIVE YEARS SINCE THE DECISION OF
PAUL V. VIRGINIA, HAS ADHERED TO THE VIEW THAT THE BUSINESS OF
INSURANCE IS NOT INTERSTATE COMMERCE.  FN11  SUCH HAS EVER SINCE BEEN
THE PRACTICAL CONSTRUCTION BY THE OTHER BRANCHES OF THE GOVERNMENT OF
THE APPLICATION TO INSURANCE OF THE COMMERCE CLAUSE AND THE SHERMAN
ACT.  LONG CONTINUED PRACTICAL CONSTRUCTION OF THE CONSTITUTION OR A
STATUTE IS OF PERSUASIVE FORCE IN DETERMINING ITS MEANING AND PROPER
APPLICATION.  POCKET VETO CASE, 279 U.S. 655, 688-90; FEDERAL TRADE
COMMISSION V. BUNTE BROS., 312 U.S. 349, 351-2; UNITED STATES V. COOPER
CORP., 312 U.S. 600, 613-14.  IT IS SIGNIFICANT THAT IN THE FIFTY YEARS
SINCE THE ENACTMENT OF THE SHERMAN ACT THE GOVERNMENT HAS NOT UNTIL NOW
SOUGHT TO APPLY IT TO THE BUSINESS OF INSURANCE,  FN12  AND THAT
CONGRESS HAS CONTINUED TO REGARD INSURANCE AS NOT CONSTITUTING
INTERSTATE COMMERCE.  ALTHOUGH OFTEN ASKED TO DO SO IT HAS REPEATEDLY
DECLINED TO PASS LEGISLATION REGULATING THE INSURANCE BUSINESS AND TO
SPONSOR CONSTITUTIONAL AMENDMENTS SUBJECTING IT TO CONGRESSIONAL
CONTROL.  FN13 

THE DECISION NOW RENDERED REPUDIATES THIS LONG-CONTINUED AND
CONSISTENT CONSTRUCTION OF THE COMMERCE CLAUSE AND THE SHERMAN ACT.  WE
DO NOT SAY THAT THAT IS IN ITSELF A SUFFICIENT GROUND FOR DECLINING TO
JOIN IN THE COURT'S DECISION.  THIS COURT HAS NEVER COMMITTED ITSELF TO
ANY RULE OR POLICY THAT IT WILL NOT "BOW TO THE LESSONS OF EXPERIENCE
AND THE FORCE OF BETTER REASONING" BY OVERRULING A MISTAKEN PRECEDENT. 
SEE CASES COLLECTED IN JUSTICE BRANDEIS'S DISSENTING OPINION IN BURNET
V. CORONADO OIL & GAS CO., 285 U.S. 393, 406-9, NOTES 1-4, AND IN SMITH
V. ALLWRIGHT, 321 U.S. 649, 665, N. 10; AND SEE LEGAL TENDER CASES, 12
WALL.  457, 553-54.  THIS IS ESPECIALLY THE CASE WHEN THE MEANING OF
THE CONSTITUTION IS AT ISSUE AND A MISTAKEN CONSTRUCTION IS ONE WHICH
CANNOT BE CORRECTED BY LEGISLATIVE ACTION. 

TO GIVE BLIND ADHERENCE TO A RULE OR POLICY THAT NO DECISION OF THIS
COURT IS TO BE OVERRULED WOULD BE ITSELF TO OVERRULE MANY DECISIONS OF
THE COURT WHICH DO NOT ACCEPT THAT VIEW.  BUT THE RULE OF STARE DECISIS
EMBODIES A WISE POLICY BECAUSE IT IS OFTEN MORE IMPORTANT THAT A RULE
OF LAW BE SETTLED THAN THAT IT BE SETTLED RIGHT.  THIS IS ESPECIALLY SO
WHERE, AS HERE, CONGRESS IS NOT WITHOUT REGULATORY POWER.  CF. PENN
DAIRIES V. MILK CONTROL COMM'N, 318 U.S. 261, 271, 275.  THE QUESTION
THEN IS NOT WHETHER AN EARLIER DECISION SHOULD EVER BE OVERRULED, BUT
WHETHER A PARTICULAR DECISION OUGHT TO BE.  AND BEFORE OVERRULING A
PRECEDENT IN ANY CASE IT IS THE DUTY OF THE COURT TO MAKE CERTAIN THAT
MORE HARM WILL NOT BE DONE IN REJECTING THAN IN RETAINING A RULE OF
EVEN DUBIOUS VALIDITY.  COMPARE HELVERING V. GRIFFITHS, 318 U.S. 371,
400-4. 

FROM WHAT HAS BEEN SAID IT SEEMS PLAIN THAT OUR DECISIONS THAT THE
BUSINESS OF INSURANCE IS NOT COMMERCE ARE NOT UNSOUND IN PRINCIPLE, AND
INVOLVE NO INCONSISTENCY OR LACK OF HARMONY WITH ACCEPTED DOCTRINE. 
THEY PLACE NO FIELD OF ACTIVITY BEYOND THE CONTROL OF BOTH THE NATIONAL
AND STATE GOVERNMENTS AS DID HAMMER V. DAGENHART, 247 U.S. 251,
OVERRULED THREE YEARS AGO BY A UNANIMOUS COURT IN UNITED STATES V.
DARBY, 312 U.S. 100, 117.  ON THE CONTRARY THE RULING THAT INSURANCE IS
NOT COMMERCE, AND IS THEREFORE UNAFFECTED BY THE RESTRICTIONS WHICH THE
COMMERCE CLAUSE IMPOSES ON STATE LEGISLATION, REMOVED THE MOST SERIOUS
OBSTACLE TO REGULATION OF THAT BUSINESS BY THE STATES.  THROUGH THEIR
PLENARY POWER OVER DOMESTIC AND FOREIGN CORPORATIONS WHICH ARE NOT
ENGAGED IN INTERSTATE COMMERCE, THE STATES HAVE DEVELOPED EXTENSIVE AND
EFFECTIVE SYSTEMS OF REGULATION OF THE INSURANCE BUSINESS, OFTEN
SOLVING REGULATORY PROBLEMS OF A LOCAL CHARACTER WITH WHICH IT WOULD BE
IMPRACTICAL OR DIFFICULT FOR CONGRESS TO DEAL THROUGH THE EXERCISE OF
THE COMMERCE POWER.  AND IN VIEW OF THE BROAD POWERS OF THE FEDERAL
GOVERNMENT TO REGULATE MATTERS WHICH, THOUGH NOT THEMSELVES COMMERCE,
NEVERTHELESS AFFECT INTERSTATE COMMERCE, WICKARD V. FILBURN, 317 U.S.
111; POLISH ALLIANCE V. LABOR BOARD, SUPRA, THERE CAN BE NO DOUBT OF
THE POWER OF CONGRESS IF IT SO DESIRES TO REGULATE MANY ASPECTS OF THE
INSURANCE BUSINESS MENTIONED IN THIS INDICTMENT. 

BUT THE IMMEDIATE AND ONLY PRACTICAL EFFECT OF THE DECISION NOW
RENDERED IS TO WITHDRAW FROM THE STATES, IN LARGE MEASURE, THE
REGULATION OF INSURANCE AND TO CONFER IT ON THE NATIONAL GOVERNMENT,
WHICH HAS ADOPTED NO LEGISLATIVE POLICY AND EVOLVED NO SCHEME OF
REGULATION WITH RESPECT TO THE BUSINESS OF INSURANCE.  CONGRESS HAVING
TAKEN NO ACTION, THE PRESENT DECISION SUBSTITUTES, FOR THE VARIED AND
DETAILED STATE REGULATION DEVELOPED OVER A PERIOD OF YEARS, THE LIMITED
AIM AND INDEFINITE COMMAND OF THE SHERMAN ACT FOR THE SUPPRESSION OF
RESTRAINTS ON COMPETITION IN THE MARKETING OF GOODS AND SERVICES IN OR
AFFECTING INTERSTATE COMMERCE, TO BE APPLIED BY THE COURTS TO THE
INSURANCE BUSINESS AS BEST THEY MAY. 

IN THE YEARS SINCE THIS COURT'S PRONOUNCEMENT THAT INSURANCE IS NOT
COMMERCE CAME TO BE REGARDED AS SETTLED CONSTITUTIONAL DOCTRINE, VAST
EFFORTS HAVE GONE INTO THE DEVELOPMENT OF SCHEMES OF STATE REGULATION
AND INTO THE ORGANIZATION OF THE INSURANCE BUSINESS IN CONFORMITY TO
SUCH REGULATORY REQUIREMENTS.  VAST AMOUNTS OF CAPITAL HAVE BEEN
INVESTED IN THE BUSINESS IN RELIANCE ON THE PERMANENCE OF THE EXISTING
SYSTEM OF STATE REGULATION.  HOW FAR THAT SYSTEM IS NOW SUPPLANTED IS
NOT, AND IN THE NATURE OF THINGS COULD NOT WELL BE, EXPLAINED IN THE
COURT'S OPINION.  THE GOVERNMENT ADMITS THAT STATUTES OF AT LEAST FIVE
STATES WILL BE INVALIDATED BY THE DECISION AS IN CONFLICT WITH THE
SHERMAN ACT, AND THE ARGUMENT IN THIS COURT REVEALS SERIOUS DOUBT
WHETHER MANY OTHERS MAY NOT ALSO BE INCONSISTENT WITH THAT ACT.  THE
EXTENT TO WHICH STILL OTHER STATE STATUTES WILL NOW BE INVALIDATED AS
IN CONFLICT WITH THE COMMERCE CLAUSE HAS NOT BEEN EXPLORED IN ANY
DETAIL IN THE BRIEFS AND ARGUMENT OR IN THE COURT'S OPINION. 

CERTAINLY THERE CANNOT BUT BE SERIOUS DOUBT AS TO THE VALIDITY OF
STATE TAXES WHICH MAY NOW BE THOUGHT TO DISCRIMINATE AGAINST THE
INTERSTATE COMMERCE, CF. PHILADELPHIA FIRE ASSN. V. NEW YORK, 119 U.S.
110; OR THE EXTENT TO WHICH CONDITIONS MAY BE IMPOSED ON THE RIGHT OF
INSURANCE COMPANIES TO DO BUSINESS WITHIN A STATE; OR IN GENERAL THE
EXTENT TO WHICH THE STATE MAY REGULATE WHATEVER ASPECTS OF THE BUSINESS
ARE NOW FOR THE FIRST TIME TO BE REGARDED AS INTERSTATE COMMERCE. 
WHILE THIS COURT NO LONGER ADHERES TO THE INFLEXIBLE RULE THAT A STATE
CANNOT IN SOME MEASURE REGULATE INTERSTATE COMMERCE, THE APPLICATION OF
THE TEST PRESENTLY APPLIED REQUIRES "A CONSIDERATION OF ALL THE
RELEVANT FACTS AND CIRCUMSTANCES" IN ORDER TO DETERMINE WHETHER THE
MATTER IS AN APPROPRIATE ONE FOR LOCAL REGULATION AND WHETHER THE
REGULATION DOES NOT UNDULY BURDEN INTERSTATE COMMERCE, PARKER V. BROWN,
317 U.S. 341, 362 - A DETERMINATION WHICH CAN ONLY BE MADE UPON A CASE
TO-CASE BASIS.  ONLY TIME AND COSTLY EXPERIENCE CAN GIVE THE ANSWERS. 

CONGRESS MADE THE CHOICE AGAINST SO DRASTIC A CHANGE WHEN IN 1906 IT
REJECTED THE PROPOSALS TO ASSUME NATIONAL CONTROL OVER THE INSURANCE
BUSINESS.  THE REPORT OF THE HOUSE COMMITTEE ON THE JUDICIARY POINTED
OUT THAT "ALL OF THE EVILS AND WRONGS COMPLAINED OF ARE SUBJECT TO THE
EXCLUSIVE REGULATION OF STATE LEGISLATIVE POWER" AND ADDED:  "ASSUMING
THAT CONGRESS DECLARES THAT INSURANCE IS COMMERCE AND THE SUPREME COURT
HOLDS THE LEGISLATION CONSTITUTIONAL, HOW MUCH COULD CONGRESS REGULATE,
AND WHAT EFFECT WOULD SUCH LEGISLATION HAVE?  IT WOULD DISTURB THE VERY
SUBSTRUCTURE OF GOVERNMENT BY PRECIPITATING A VIOLENT CONFLICT BETWEEN
THE POLICE POWER OF THE STATES AND THE POWER OF CONGRESS TO REGULATE
INTERSTATE COMMERCE.  TO UPHOLD THE FEDERAL POWER WOULD BE TO
EXTINGUISH THE POLICE POWER OF THE STATE BY THE LEGISLATION OF
CONGRESS.  IN OTHER WORDS, CONGRESS WOULD ADMIT CORPORATIONS INTO THE
RESPECTIVE STATES AND HAVE THE ENTIRE REGULATING POWER."  H.R. REP. NO.
2491, 59TH CONG., 1ST SESS., 13, 15-16.  SEE ID. 18.    HAD CONGRESS
CHOSEN TO LEGISLATE FOR SUCH PARTS OF THE INSURANCE BUSINESS AS COULD
BE FOUND TO AFFECT INTERSTATE COMMERCE, WHETHER BY MAKING THE SHERMAN
ACT APPLICABLE TO THEM OR BY REGULATION IN SOME OTHER FORM, IT COULD
HAVE RESOLVED MANY OF THESE QUESTIONS OF CONFLICT BETWEEN FEDERAL AND
STATE REGULATION.  BUT THIS COURT CAN DECIDE ONLY THE QUESTIONS BEFORE
IT IN PARTICULAR CASES.  ITS ACTION IN NOW OVERTURNING THE PRECEDENTS
OF SEVENTY-FIVE YEARS GOVERNING A BUSINESS OF SUCH VOLUME AND OF SUCH
WIDE RAMIFICATIONS, CANNOT FAIL TO BE THE OCCASION FOR LOOSING A FLOOD
OF LITIGATION AND OF LEGISLATION, STATE AND NATIONAL, IN ORDER TO
ESTABLISH A NEW BOUNDARY BETWEEN STATE AND NATIONAL POWER, RAISING
QUESTIONS WHICH CANNOT BE ANSWERED FOR YEARS TO COME, DURING WHICH A
GREAT BUSINESS AND THE REGULATORY OFFICERS OF EVERY STATE MUST BE
HARASSED BY ALL THE DOUBTS AND DIFFICULTIES INSEPARABLE FROM A
REALIGNMENT OF THE DISTRIBUTION OF POWER IN OUR FEDERAL SYSTEM.  THESE
CONSIDERATIONS MIGHT WELL STAY A REVERSAL OF LONG-ESTABLISHED DOCTRINE
WHICH PROMISES SO LITTLE OF ADVANTAGE AND SO MUCH OF HARM.  FOR ME
THESE CONSIDERATIONS ARE CONTROLLING. 

THE JUDGMENT SHOULD BE AFFIRMED. 

FN1  IT CHARGES AN AGREEMENT (A) TO FIX PREMIUM RATES, (B) TO FIX
COMMISSIONS PAID, (C) TO ADOPT RECLASSIFICATIONS OF RISKS ON THE BASIS
OF WHICH PREMIUM RATES ARE FIXED, (D) TO ADHERE TO STANDARD TERMS,
CONDITIONS, AND CLAUSES, IN THE INSURANCE CONTRACT, (E) TO WITHHOLD
REINSURANCE FACILITIES FROM NON-MEMBERS OF THE SOUTH-EASTERN
UNDERWRITERS ASSOCIATION, (F) TO WITHDRAW FROM AND REFUSE TO ENTER
AGENCIES REPRESENTING NON-MEMBERS, (G) TO BOYCOTT AND WITHHOLD
PATRONAGE FROM PURCHASERS OF INSURANCE FROM NON-MEMBERS, (H) TO
DISPARAGE THE SERVICES AND FACILITIES OF NON-MEMBERS, (I) TO ESTABLISH
AND MAINTAIN RATING BUREAUS TO POLICE AND MAINTAIN THESE AGREEMENTS,
(J) TO ESTABLISH AND MAINTAIN BOARDS AND GROUPS OF AGENTS FOR THE SAME
PURPOSE.  THERE IS NO ALLEGATION THAT COMMISSIONS ARE PAID OTHERWISE
THAN ON THE ENTERING INTO OF THE CONTRACTS.  THE INDICTMENT THUS
CHARGES ONLY RESTRAINTS IN THE TERMS OF THE INSURANCE CONTRACTS AND
RESTRAINTS, BY BOYCOTTS, IN COMPETITION IN ENTERING INTO SUCH CONTRACTS
AND IN ENTERING INTO CONTRACTS OF REINSURANCE. 

FN2  E.G., PAUL V. VIRGINIA, 8 WALL.  168; DUCAT V. CHICAGO, 10
WALL.  410; LIVERPOOL INSURANCE CO. V. MASSACHUSETTS, 10 WALL.  566;
PHILADELPHIA FIRE ASSN. V. NEW YORK, 119 U.S. 110; HOOPER V.
CALIFORNIA, 155 U.S. 648; NOBLE V. MITCHELL, 164 U.S. 367; ORIENT
INSURANCE CO. V. DAGGS, 172 U.S. 557; NEW YORK LIFE INS. CO. V.
CRAVENS, 178 U.S. 389; NUTTING V. MASSACHUSETTS, 183 U.S. 553; NEW YORK
LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495; NORTHWESTERN MUTUAL
LIFE INS. CO. V. WISCONSIN, 247 U.S. 132; NATIONAL INSURANCE CO. V.
WANBERG, 260 U.S. 71; BOTHWELL V. BUCKBEE, MEARS CO., 275 U.S. 274. 
SEE ALSO DOYLE V. CONTINENTAL INS. CO., 94 U.S. 535, OVERRULED ON OTHER
GROUNDS BY TERRAL V. BURKE CONSTRUCTION CO., 257 U.S. 529. 

FN3  THE DECISIONS OF THIS COURT THAT THE NEGOTIATION OF A CONTRACT
BETWEEN CITIZENS OF DIFFERENT STATES IS NOT INTERSTATE COMMERCE WERE
KNOWN TO AND ACCEPTED BY CONGRESS.  IN THE COURSE OF THE DEBATES IN THE
SENATE ON THE ORIGINAL BILL INTRODUCED BY SENATOR SHERMAN, SENATOR
TURPIE, DISCUSSING THE EXTENT OF THE FEDERAL COMMERCE POWER, STATED, "I
RECOLLECT ONE JUDICIAL DECISION UPON THIS SUBJECT VERY DEFINITELY.  THE
SUPREME COURT HAS DECIDED THAT INSURANCE IS NOT COMMERCE.  ...  "  21
CONG. REC. 2556.  DURING SUBSEQUENT DEBATES ON THAT BILL SENATOR HOAR,
WHO LATER TOOK CHARGE OF THE REVISED BILL REPORTED BY THE JUDICIARY
COMMITTEE AND ULTIMATELY ENACTED, 21 CONG. REC. 3145 ET SEQ., DENIED
THE EXISTENCE OF FEDERAL SUBSTANTIVE POWER, UNDER THE COMMERCE CLAUSE
OR ARTICLE III, SEC. 2, OVER CONTRACTS BETWEEN CITIZENS OF DIFFERENT
STATES, ASSERTING THAT SENATOR SHERMAN'S BILL COULD BE SUPPORTED ONLY
AS A REGULATION OF THE "IMPORTATION, TRANSPORTATION, OR SALE OF
ARTICLES.   ...  "  21 CONG. REC. 2567.  SEE ALSO THE STATEMENTS OF
SENATOR EUSTIS AT 21 CONG. REC. 2646, 2651-2. 

FN4  SEE SENATOR SHERMAN'S ORIGINAL BILL, S. 3445, 50TH CONG., S. 1,
51ST CONG., AND HIS STATEMENT AT 21 CONG. REC. 2562.  TEXTS OF THE BILL
THROUGHOUT ITS VARIOUS AMENDMENTS ARE SET OUT IN BILLS AND DEBATES
RELATING TO TRUSTS, SEN. DOC. NO. 147, 57TH CONG., 2D SESS. (1903). 

FN5  H.R. REP. NO. 1707, 51ST CONG., 1ST SESS., P. 1.  SEE ALSO THE
STATEMENT ON THE FLOOR OF THE HOUSE BY MR. CULBERSON, IN CHARGE OF THE
BILL, "THERE IS NO ATTEMPT TO EXERCISE ANY DOUBTFUL AUTHORITY ON THIS
SUBJECT, BUT THE BILL IS CONFINED STRICTLY AND ALONE TO SUBJECTS OVER
WHICH, CONFESSEDLY, THERE IS NO QUESTION ABOUT THE LEGISLATIVE POWER OF
CONGRESS  ...  "  21 CONG. REC. 4089.  AND SEE THE STATEMENT OF SENATOR
EDMUNDS, CHAIRMAN OF THE SENATE JUDICIARY COMMITTEE WHICH REPORTED OUT
THE BILL IN THE FORM IN WHICH IT PASSED, THAT IN DRAFTING THAT BILL THE
COMMITTEE THOUGHT THAT "WE WOULD FRAME A BILL THAT SHOULD BE CLEARLY
WITHIN OUR CONSTITUTIONAL POWER, THAT WE SHOULD MAKE ITS DEFINITION OUT
OF TERMS THAT WERE WELL KNOWN TO THE LAW ALREADY, AND WOULD LEAVE IT TO
THE COURTS IN THE FIRST INSTANCE TO SAY HOW FAR THEY COULD CARRY IT OR
ITS DEFINITIONS AS APPLICABLE TO EACH PARTICULAR CASE AS IT MIGHT
ARISE."  21 CONG. REC. 3148.  SIMILARLY SENATOR HOAR, A MEMBER OF THAT
COMMITTEE WHO WITH SENATOR EDMUNDS WAS IN CHARGE OF THE BILL, STATED
"NOW WE ARE DEALING WITH AN OFFENSE AGAINST INTERSTATE OR INTERNATIONAL
COMMERCE, WHICH THE STATE CAN NOT REGULATE BY PENAL ENACTMENT, AND WE
FIND THE UNITED STATES WITHOUT ANY COMMON LAW.  THE GREAT THING THAT
THIS BILL DOES, EXCEPT AFFORDING A REMEDY, IS TO EXTEND THE COMMON-LAW
PRINCIPLES, WHICH PROTECTED FAIR COMPETITION IN TRADE IN OLD TIMES IN
ENGLAND, TO INTERNATIONAL AND INTERSTATE COMMERCE IN THE UNITED
STATES."  21 CONG. REC. 3152. 

FN6  MESSAGES OF THE PRESIDENTS, 6901, 6986-7.  SEE THE REPORT OF THE
COMMISSIONER OF CORPORATIONS, 1905, P. 5, URGING THAT CONGRESS "SO
LEGISLATE UPON THE SUBJECT AS TO AFFORD AN OPPORTUNITY TO PRESENT TO
THE SUPREME COURT THE QUESTION WHETHER INSURANCE AS NOW CONDUCTED IS
INTERSTATE COMMERCE, AND HENCE SUBJECT TO FEDERAL REGULATION." 

SEE ALSO SEN. DOC. NO. 333, 59TH CONG., 1ST SESS. (1906), FOR A
MESSAGE OF PRESIDENT ROOSEVELT PROPOSING AN INSURANCE CODE FOR THE
DISTRICT OF COLUMBIA AND ENCLOSING A REPORT OF A CONVENTION OF STATE
OFFICERS CALLED BY HIM TO INVESTIGATE WRONGFUL INSURANCE METHODS. 

FN7  SEE, E.G., 29 AMERICAN BAR ASSOCIATION REPORTS 538(1906); 24
ANNALS OF AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCES (1904) 69,
78-83; 26 ID. (1905) 681; DRYDEN, AN ADDRESS ON THE REGULATION OF
INSURANCE BY CONGRESS (1904); 1 MOODY'S MAGAZINE (1905-6) 271 ET SEQ.;
38 AMERICAN LAW REVIEW (1904) 181. 

FN8  H.R. 7054, 58TH CONG., 2D SESS. (1903); H.R. 13791, 58TH CONG.,
2D SESS. (1904); H.R. 16274, 58TH CONG., 3D SESS. (1904); S. 7277, 58TH
CONG., 3D SESS. (1905); H.R. 15092, 59TH CONG., 1ST SESS. (1906); H.
RES. NO. 417, 59TH CONG., 1ST SESS. (1906).  SEE FOOTNOTE 9 INFRA.  SEE
ALSO S. 1743, 56TH CONG., 1ST SESS. (1899). 

FN9  COMPARE THE DEBATES IN THE HOUSE ON THE BILL, S. 569, TO
ESTABLISH A DEPARTMENT OF COMMERCE AND LABOR.  AS REPORTED BY THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, SEC. 6 OF THE BILL
PROVIDED FOR THE CREATION OF A BUREAU OF INSURANCE TO "EXERCISE SUCH
CONTROL AS MAY BE PROVIDED BY LAW" OVER INSURANCE COMPANIES AND TO
"FOSTER, PROMOTE, AND DEVELOP" THE INSURANCE BUSINESS BY COLLECTING AND
COMPILING STATISTICS.  H.R. REP. NO. 2970, 57TH CONG., 2D SESS., 12,
15.  AFTER EXTENDED DEBATE, IN WHICH THE PROVISION WAS OBJECTED TO FOR
WANT OF POWER IN THE FEDERAL GOVERNMENT TO REGULATE THE INSURANCE
BUSINESS AND AS A THREAT TO THE CONTINUANCE OF EXISTING STATE
REGULATION, 36 CONG. REC. 868-9, 872-3, 908-11, 919-21, AND IN WHICH IT
WAS INSISTED BY PROPONENTS OF THE BILL, AS NOW, THAT INSURANCE IS
COMMERCE, 36 CONG. REC. 876-7, AMENDMENTS TO STRIKE ALL REFERENCE TO
INSURANCE FROM THE BILL WERE ADOPTED.  36 CONG. REC. 911, 921.  A
PROPOSED AMENDMENT TO PROHIBIT THE USE OF THE MAILS BY INSURANCE
COMPANIES DOING BUSINESS IN VIOLATION OF STATE LAW WAS LIKEWISE
DEFEATED.  36 CONG. REC. 922-3.  THE CONFERENCE COMMITTEE THEN INSERTED
THE PROVISION, ADOPTED AS SEC. 6 OF THE ACT, 32 STAT. 828, AUTHORIZING
THE BUREAU OF CORPORATIONS TO COMPILE AND PUBLISH USEFUL INFORMATION
CONCERNING CORPORATIONS DOING BUSINESS IN THE UNITED STATES AND ENGAGED
IN INTERSTATE OR FOREIGN COMMERCE, "INCLUDING CORPORATIONS ENGAGED IN
INSURANCE."  UPON ASSURANCES THAT THIS SECTION "SIMPLY AUTHORIZES
INFORMATION BEING SECURED" AND THAT "THERE IS NOTHING IN THIS MEASURE
THAT CONTRAVENES THE VOTES OF THE HOUSE ON THAT SUBJECT," 36 CONG. REC.
2008, THE CONFERENCE REPORT WAS ADOPTED.  THE INSURANCE PROVISIONS WERE
NOT IN THE BILL AS IT HAD ORIGINALLY PASSED THE SENATE, AND THE
CONFERENCE REPORT WAS ADOPTED BY THAT BODY WITHOUT DEBATE.  36 CONG.
REC. 1990, 2035-6. 

THE COMMISSIONER OF CORPORATIONS MADE A STUDY OF STATE LEGISLATION,
BUT REPORTED THAT "IN VIEW OF THE DECISIONS OF THE SUPREME COURT I HAVE
NOT FELT WARRANTED IN TRYING TO ASSUME JURISDICTION OVER INSURANCE
COMPANIES FOR THE PURPOSE OF INVESTIGATION."  REPORT OF THE
COMMISSIONER OF CORPORATIONS, 1905, P. 5; SEE REPORT OF THE
COMMISSIONER OF CORPORATIONS, 1904, PP. 29-33; REPORT OF THE SECRETARY
OF COMMERCE AND LABOR, 1903, P. 26. 

FN10  MR. WEBB'S STATEMENT WAS MADE IN ANSWER TO AN INQUIRY BY MR.
BARTON AS TO WHETHER THE PROPOSED SECTION 2 OF THE CLAYTON ACT WOULD
RENDER ILLEGAL CERTAIN PRACTICES IF ENGAGED IN BY WHOLESALERS, IN THE
COURSE OF WHICH MR. BARTON REFERRED TO AN INSTANCE OF SUCH PRACTICES
COMMITTED BY INSURANCE COMPANIES.  THE COLLOQUY CONTINUED: 

"MR. BARTON.  IT IS NOT RIGHT THAT THEY SHOULD COME WITHIN THE LAW? 

MR. WEBB.  YES." 

ASSUMING THAT MR. WEBB'S ANSWER RELATED TO INSURANCE COMPANIES, AND
EXPRESSED A DESIRE THAT SUCH COMPANIES SHOULD BE INCLUDED WITHIN THE
PROHIBITIONS OF THE SHERMAN AND CLAYTON ACTS, BUT WERE NOT, NOTHING WAS
DONE TO AMEND THOSE ACTS SO AS TO CARRY OUT THAT DESIRE OR WHICH WOULD
REQUIRE THIS COURT TO REEXAMINE THE SCOPE OF FEDERAL POWER OVER
INSURANCE. 

FN11  FOR CASES ARISING UNDER THE ANTI-TRUST LAWS IN WHICH THIS COURT
HAS SO STATED SEE HOPKINS V. UNITED STATES, 171 U.S. 578, 602;
BLUMENSTOCK BROS. V. CURTIS PUBLISHING CO., 252 U.S. 436, 443; FEDERAL
CLUB V. NATIONAL LEAGUE, 259 U.S. 200, 209; STANDARD OIL CO. V. UNITED
STATES, 283 U.S. 163, 168-9; AND SEE NORTHERN SECURITIES CO. V. UNITED
STATES, 193 U.S. 197, 372, 377(DISSENTING OPINION).  SEE ALSO UNITED
MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344, 410; UNITED LEATHER
WORKERS V. HERKERT & MEISEL CO., 265 U.S. 457, 470-71, RELYING ON WARE
& LELAND V. MOBILE COUNTY, 209 U.S. 405, A CASE APPLYING THE INSURANCE
RULE TO COTTON FUTURES CONTRACTS NOT CALLING FOR INTERSTATE SHIPMENT OR
DELIVERY. 

FN12  ONE PRIVATE SUIT WAS BROUGHT IN THE DISTRICT OF COLUMBIA TO
ENJOIN RATE-FIXING BY AN UNDERWRITERS' ASSOCIATION; THE SUIT WAS
DISMISSED ON THE GROUND THAT INSURANCE WAS NOT COMMERCE.  LOWN V.
UNDERWRITERS' ASSN., SUP. CT. D.C. JUNE 23, 1915, REPORTED IN 6 FEDERAL
ANTI-TRUST DECISIONS 1048. 

OVER 252 CRIMINAL PROSECUTIONS AND 272 SUITS AT EQUITY HAVE BEEN
INSTITUTED BY THE UNITED STATES UNDER THE SHERMAN ACT, HAMILTON,
ANTITRUST IN ACTION, MONOGRAPH NO. 16, PREPARED FOR THE TEMPORARY
NATIONAL ECONOMIC COMMITTEE (1940) 76, 78, AND OVER 103 PRIVATE ACTIONS
HAVE BEEN BROUGHT, NOTE, 49 YALE L.J. 284, 296(1939). 

FN13  IN ADDITION TO THE BILLS AT NOTE 8, SUPRA, SEE H.J. RES. 31,
60TH CONG., 1ST SESS. (1907); S.J. RES. 103, 63D CONG., 2D SESS.
(1914); H.J. RES. 194, 63D CONG., 2D SESS. (1914); S.J. RES. 58, 64TH
CONG., 1ST SESS. (1915); S.J. RES. 51, 73D CONG., 1ST SESS. (1933), ALL
PROPOSING CONSTITUTIONAL AMENDMENTS. 

MR. JUSTICE FRANKFURTER: 

I JOIN IN THE OPINION OF THE CHIEF JUSTICE. 

THE RELATIONS OF THE INSURANCE BUSINESS TO NATIONAL COMMERCE AND
FINANCE, I HAVE NO DOUBT, AFFORD CONSTITUTIONAL AUTHORITY FOR
APPROPRIATE REGULATION BY CONGRESS OF THE BUSINESS OF INSURANCE,
CERTAINLY NOT TO A LESS EXTENT THAN CONGRESSIONAL REGULATION TOUCHING
AGRICULTURE.  SEE, E.G., SMITH V. KANSAS CITY TITLE CO., 255 U.S. 180;
WICKARD V. FILBURN, 317 U.S. 111.  BUT THE OPINION OF THE CHIEF JUSTICE
LEAVES ME EQUALLY WITHOUT DOUBT THAT BY THE ENACTMENT OF THE SHERMAN
ACT IN 1890, CONGRESS DID NOT MEAN TO DISREGARD THE THEN ACCEPTED
CONCEPTION OF THE CONSTITUTIONAL BASIS FOR THE REGULATION OF THE
INSURANCE BUSINESS.  AND THE EVIDENCE IS OVERWHELMING THAT THE
INAPPLICABILITY OF THE SHERMAN ACT, IN ITS CONTEMPORANEOUS SETTING, TO
INSURANCE TRANSACTIONS SUCH AS THOSE CHARGED BY THIS INDICTMENT HAS
BEEN CONFIRMED AND NOT MODIFIED BY CONGRESSIONAL ATTITUDE AND ACTION IN
THE INTERVENING FIFTY YEARS.  THERE IS NO CONGRESSIONAL WARRANT
THEREFORE FOR BRINGING ABOUT THE FAR-REACHING DISLOCATIONS WHICH THE
OPINIONS OF THE CHIEF JUSTICE AND MR. JUSTICE JACKSON ADUMBRATE. 

MR. JUSTICE JACKSON, DISSENTING IN PART:

     I. 

THE HISTORICAL DEVELOPMENT OF PUBLIC REGULATION OF INSURANCE
UNDERWRITING IN THIS COUNTRY HAS CREATED A DILEMMA WHICH CONFRONTS THIS
COURT TODAY.  IT DEMONSTRATES THAT "THE LIFE OF THE LAW HAS NOT BEEN
LOGIC:  IT HAS BEEN EXPERIENCE." 

FOR ONE HUNDRED FIFTY YEARS CONGRESS NEVER HAS UNDERTAKEN TO REGULATE
THE BUSINESS OF INSURANCE.  THEREFORE TO GIVE THE PUBLIC ANY PROTECTION
AGAINST ABUSES TO WHICH THAT BUSINESS IS PECULIARLY SUSCEPTIBLE THE
STATES HAVE HAD TO REGULATE IT.  SINCE 1851 THE SEVERAL STATES, SPURRED
BY NECESSITY AND WITH ACQUIESCENCE OF EVERY BRANCH OF THE FEDERAL
GOVERNMENT, HAVE BEEN BUILDING UP SYSTEMS OF REGULATION TO DISCHARGE
THIS DUTY TOWARD THEIR INHABITANTS.  FN1    THERE NEVER WAS DOUBT OF
THE RIGHT OF A STATE TO REGULATE THE BUSINESS OF ITS DOMESTIC COMPANIES
DONE WITHIN THE HOME STATE.  THE FOREIGN CORPORATION WAS THE PROBLEM. 
SUCH INSURANCE INTERESTS RESISTED STATE REGULATION AND BROUGHT A SERIES
OF CASES TO THIS COURT.  THE COMPANIES SOUGHT TO DISABLE THE STATES
FROM REGULATING THEM BY ARGUING THAT INSURANCE BUSINESS IS INTERSTATE
COMMERCE, AN ARGUMENT ALMOST IDENTICAL WITH THAT NOW MADE BY THE
GOVERNMENT.  FN2  THE FOREIGN COMPANIES THUS SOUGHT TO VEST INSURANCE
CONTROL EXCLUSIVELY IN CONGRESS AND TO DEPRIVE EVERY STATE OF POWER TO
EXCLUDE THEM, TO REGULATE THEM, OR TO TAX THEM FOR THE PRIVILEGE OF
DOING BUSINESS. 

THE PRACTICAL AND ULTIMATE CHOICE THAT FACED THIS COURT WAS TO SAY
EITHER THAT INSURANCE WAS SUBJECT TO STATE REGULATION OR THAT IT WAS
SUBJECT TO NO EXISTING REGULATION AT ALL.  THE COURT CONSISTENTLY
SUSTAINED THE RIGHT OF THE STATES TO REPRESENT THE PUBLIC INTEREST IN
THIS ENTERPRISE.  IT DID SO, WISELY OR UNWISELY, BY RESORT TO THE
DOCTRINE THAT INSURANCE IS NOT COMMERCE AND HENCE IS UNAFFECTED BY THE
GRANT OF POWER TO CONGRESS TO REGULATE COMMERCE AMONG THE SEVERAL
STATES.  EACH STATE THUS WAS LEFT FREE TO EXCLUDE FOREIGN INSURANCE
COMPANIES ALTOGETHER OR TO ADMIT THEM TO DO BUSINESS ON SUCH CONDITIONS
AS IT SAW FIT TO IMPOSE.  THE WHOLE STRUCTURE OF INSURANCE REGULATION
AND TAXATION AS IT EXISTS TODAY HAS BEEN BUILT UPON THIS ASSUMPTION. 
FN3 

THE DOCTRINE THAT INSURANCE BUSINESS IS NOT COMMERCE ALWAYS HAS BEEN
CRITICIZED AS UNREALISTIC, ILLOGICAL, AND INCONSISTENT WITH OTHER
HOLDINGS OF THE COURT.  I AM UNABLE TO MAKE ANY SATISFACTORY
DISTINCTION BETWEEN INSURANCE BUSINESS AS NOW CONDUCTED AND OTHER
TRANSACTIONS THAT ARE HELD TO CONSTITUTE INTERSTATE COMMERCE.  FN4
WERE WE CONSIDERING THE QUESTION FOR THE FIRST TIME AND WRITING UPON A
CLEAN SLATE, I WOULD HAVE NO MISGIVINGS ABOUT HOLDING THAT INSURANCE
BUSINESS IS COMMERCE AND WHERE CONDUCTED ACROSS STATE LINES IS
INTERSTATE COMMERCE AND THEREFORE THAT CONGRESSIONAL POWER TO REGULATE
PREVAILS OVER THAT OF THE STATES.  I HAVE LITTLE DOUBT THAT IF THE
PRESENT TREND CONTINUES FEDERAL REGULATION EVENTUALLY WILL SUPERSEDE
THAT OF THE STATES. 

THE QUESTION THEREFORE FOR ME SETTLES DOWN TO THIS:  WHAT ROLE OUGHT
THE JUDICIARY TO PLAY IN REVERSING THE TREND OF HISTORY AND SETTING THE
NATION'S FEET ON A NEW PATH OF POLICY?  TO ANSWER THIS I WOULD CONSIDER
WHAT CHOICES WE HAVE IN THE MATTER. 

                             II. 

THE GOVERNMENT CLAIMS, AND WE MUST APPROVE OR REJECT THE CLAIM, THAT
THE ANTITRUST LAWS CONSTITUTE AN EXERCISE OF CONGRESSIONAL POWER WHICH
REACHES THE INSURANCE BUSINESS.  THAT MIGHT BE TRUE ON EITHER OF TWO
DIFFERENT BASES.  THE PRACTICAL AS WELL AS THE THEORETICAL DIFFERENCE
IS SUBSTANTIAL, AS THIS CASE WILL SHOW. 

1.  IF AN ACTIVITY IS HELD TO BE INTERSTATE COMMERCE, CONGRESS HAS
PARAMOUNT REGULATORY POWER.  IF IT ACTS AT ALL IN RELATION TO SUCH A
SUBJECT, IT OFTEN HAS BEEN HELD THAT IT HAS "OCCUPIED THE FIELD" TO THE
EXCLUSION OF THE STATES, THAT THE FEDERAL LEGISLATION DEFINES THE FULL
MEASURE OF REGULATION AND OUTSIDE OF IT THE ACTIVITY IS TO BE FREE. 
FN5  THIS COURT NOW IS NOT FULLY AGREED AS TO THE EFFECTS OF THE
COMMERCE CLAUSE ON STATE POWER,  FN6  BUT AT LEAST THE COURT ALWAYS HAS
CONSIDERED THAT IF AN ACTIVITY IS HELD TO BE INTERSTATE IN CHARACTER A
STATE MAY NOT EXCLUDE, BURDEN, OR OBSTRUCT IT,  FN7  NOR IMPOSE A
LICENSE TAX ON THE PRIVILEGE OF CARRYING IT ON WITHIN THE STATE.  FN8
THE HOLDING OF THE COURT IN THIS CASE BRINGS INSURANCE WITHIN THIS LINE
OF DECISIONS RESTRICTING STATE POWER. 

2.  ALTHOUGH AN ACTIVITY IS HELD NOT TO BE COMMERCE OR NOT TO BE
INTERSTATE IN CHARACTER, CONGRESS NEVERTHELESS MAY REACH IT TO PROHIBIT
SPECIFIC ACTIVITIES IN ITS CONDUCT THAT SUBSTANTIALLY BURDEN OR
RESTRAIN INTERSTATE COMMERCE.  WICKARD V. FILBURN, 317 U.S. 111.  WHEN
THIS POWER IS EXERCISED BY CONGRESS, IT IMPAIRS STATE REGULATION ONLY
IN SO FAR AS IT ACTUALLY CONFLICTS WITH THE FEDERAL REGULATION. 
TERMINAL RAILROAD ASSOCIATION V. BROTHERHOOD OF RAILROAD TRAINMEN, 318
U.S. 1.  THIS CONGRESSIONAL POWER TO REACH ACTIVITIES THAT ARE NOT
INTERSTATE COMMERCE INTERFERES WITH STATE POWER ONLY IN A MILDER,
NARROWER, AND MORE SPECIFIC WAY. 

INSTEAD OF OVERRULING OUR REPEATED DECISIONS THAT INSURANCE IS NOT
COMMERCE, THE COURT COULD APPLY TO THIS CASE THE PRINCIPLE THAT EVEN IF
IT IS NOT COMMERCE THE ANTITRUST LAWS PROHIBIT ITS MANIPULATION TO
RESTRAIN INTERSTATE COMMERCE, JUST AS WE HOLD THAT THE NATIONAL LABOR
RELATIONS ACT PROHIBITS INSURANCE COMPANIES, EVEN IF NOT IN COMMERCE,
FROM ENGAGING IN UNFAIR LABOR PRACTICES WHICH AFFECT COMMERCE.  POLISH
ALLIANCE V. LABOR BOARD, POST, P. 643.  THIS WOULD REQUIRE THE
GOVERNMENT TO SHOW THAT ANY ACTS IT SOUGHT TO PUNISH AFFECT SOMETHING
MORE THAN INSURANCE AND SUBSTANTIALLY AFFECT INTERSTATE TRANSPORTATION
OR INTERSTATE COMMERCE IN SOME COMMODITY.  WHATEVER PROBLEMS OF
RECONCILIATION BETWEEN STATE AND FEDERAL AUTHORITY THIS WOULD PRESENT -
AND IT WOULD NOT AVOID THEM ALL - IT WOULD LEAVE THE BASIS OF STATE
REGULATION UNIMPAIRED. 

THE PRINCIPLES OF DECISION THAT I WOULD APPLY TO THIS CASE ARE
NEITHER NOVEL NOR COMPLICATED AND MAY BE SHORTLY PUT: 

1.  AS A MATTER OF FACT, MODERN INSURANCE BUSINESS, AS USUALLY
CONDUCTED, IS COMMERCE; AND WHERE IT IS CONDUCTED ACROSS STATE LINES,
IT IS IN FACT INTERSTATE COMMERCE. 

2.  IN CONTEMPLATION OF LAW, HOWEVER, INSURANCE HAS ACQUIRED AN
ESTABLISHED DOCTRINAL STATUS NOT BASED ON PRESENT-DAY FACTS.  FOR
CONSTITUTIONAL PURPOSES A FICTION HAS BEEN ESTABLISHED, AND LONG ACTED
UPON BY THE COURT, THE STATES, AND THE CONGRESS, THAT INSURANCE IS NOT
COMMERCE. 

3.  SO LONG AS CONGRESS ACQUIESCES, THIS COURT SHOULD ADHERE TO THIS
CAREFULLY CONSIDERED AND FREQUENTLY REITERATED RULE WHICH SUSTAINS THE
TRADITIONAL REGULATION AND TAXATION OF INSURANCE COMPANIES BY THE
STATES. 

4.  ANY ENACTMENT BY CONGRESS EITHER OF PARTIAL OR OF COMPREHENSIVE
REGULATIONS OF THE INSURANCE BUSINESS WOULD COME TO US WITH THE MOST
FORCEFUL PRESUMPTION OF CONSTITUTIONAL VALIDITY.  THE FICTION THAT
INSURANCE IS NOT COMMERCE COULD NOT BE SUSTAINED AGAINST SUCH A
PRESUMPTION, FOR RESORT TO THE FACTS WOULD SUPPORT THE PRESUMPTION IN
FAVOR OF THE CONGRESSIONAL ACTION.  THE FICTION THEREFORE MUST YIELD TO
CONGRESSIONAL ACTION AND CONTINUES ONLY AT THE SUFFERANCE OF CONGRESS. 

5.  CONGRESS ALSO MAY, WITHOUT EXERTING ITS FULL REGULATORY POWERS
OVER THE SUBJECT, AND WITHOUT CHALLENGING THE BASIS OR SUPPLANTING THE
DETAILS OF STATE REGULATION, ENACT PROHIBITIONS OF ANY ACTS IN PURSUIT
OF THE INSURANCE BUSINESS WHICH SUBSTANTIALLY AFFECT OR UNDULY BURDEN
OR RESTRAIN INTERSTATE COMMERCE. 

6.  THE ANTITRUST LAWS SHOULD BE CONSTRUED TO REACH THE BUSINESS OF
INSURANCE AND THOSE WHO ARE ENGAGED IN IT ONLY UNDER THE LATTER
CONGRESSIONAL POWER.  THIS DOES NOT REQUIRE A CHANGE IN THE DOCTRINE
THAT INSURANCE IS NOT COMMERCE.  THE STATUTE AS THUS CONSTRUED WOULD
AUTHORIZE PROSECUTION OF ALL COMBINATIONS IN THE COURSE OF INSURANCE
BUSINESS TO COMMIT ACTS NOT REQUIRED OR AUTHORIZED BY STATE LAW, SUCH
AS INTIMIDATION, DISPARAGEMENT, OR COERCION, IF THEY UNREASONABLY
RESTRAIN INTERSTATE COMMERCE IN COMMODITIES OR INTERSTATE
TRANSPORTATION.  FN9  IT WOULD LEAVE STATE REGULATION INTACT. 

                                 III. 

THE MAJORITY OF THE SITTING JUSTICES INSIST THAT WE FOLLOW THE MORE
DRASTIC COURSE.  ABSTRACT LOGIC MAY SUPPORT THEM, BUT THE COMMON SENSE
AND WISDOM OF THE SITUATION SEEM OPPOSED.  IT MAY BE SAID THAT
PRACTICAL CONSEQUENCES ARE NO CONCERN OF A COURT, THAT IT SHOULD
CONFINE ITSELF TO LEGAL THEORY.  OF COURSE, IN CASES WHERE A
CONSTITUTIONAL PROVISION OR A CONGRESSIONAL STATUTE IS CLEAR AND
MANDATORY, ITS WISDOM IS NOT FOR US.  BUT THE COURT NOW IS NOT
FOLLOWING, IT IS OVERRULING, AN UNEQUIVOCAL LINE OF AUTHORITY REACHING
OVER MANY YEARS.  WE ARE NOT SUSTAINING AN ACT OF CONGRESS AGAINST
ATTACK ON ITS CONSTITUTIONALITY, WE ARE MAKING UNPRECEDENTED USE OF THE
ACT TO STRIKE DOWN THE CONSTITUTIONAL BASIS OF STATE REGULATION.  I
THINK WE NOT ONLY ARE FREE, BUT ARE DUTY BOUND, TO CONSIDER PRACTICAL
CONSEQUENCES OF SUCH A REVISION OF CONSTITUTIONAL THEORY.  THIS COURT
ONLY RECENTLY RECOGNIZED THAT CERTAIN FORMER DECISIONS AS TO THE
DIVIDING LINE BETWEEN STATE AND FEDERAL POWER WERE ILLOGICAL AND
THEORETICALLY WRONG, BUT AT THE SAME TIME IT ANNOUNCED THAT IT WOULD
ADHERE TO THEM BECAUSE BOTH GOVERNMENTS HAD ACCOMMODATED THE STRUCTURE
OF THEIR LAWS TO THE ERROR.  DAVIS V. DEPARTMENT OF LABOR, 317 U.S.
249, 255.  IT SEEMED A COMMON-SENSE COURSE TO FOLLOW THEN, AND I THINK
SIMILAR CONSIDERATIONS SHOULD RESTRAIN US FROM FOLLOWING A CONTRARY AND
DESTRUCTIVE COURSE NOW. 

THE STATES BEGAN NEARLY A CENTURY AGO TO REGULATE INSURANCE, AND
STATE REGULATION, WHILE NO DOUBT OF UNEVEN QUALITY, TODAY IS A
SUCCESSFUL GOING CONCERN.  SEVERAL OF THE STATES, WHERE THE GREATEST
VOLUME OF BUSINESS IS TRANSACTED, HAVE RIGOROUS AND ENLIGHTENED
LEGISLATION, WITH ENFORCEMENT AND SUPERVISION IN THE HANDS OF
EXPERIENCED AND COMPETENT OFFICIALS.  SUCH STATE DEPARTMENTS, THROUGH
TRIAL AND ERROR, HAVE ACCUMULATED THAT BODY OF INSTITUTIONAL EXPERIENCE
AND WISDOM SO INDISPENSABLE TO GOOD ADMINISTRATION.  THE COURT'S
DECISION AT VERY LEAST WILL REQUIRE AN EXTENSIVE OVERHAULING OF STATE
LEGISLATION RELATING TO TAXATION AND SUPERVISION.  THE WHOLE LEGAL
BASIS WILL HAVE TO BE RECONSIDERED.  WHAT WILL BE IRRETRIEVABLY LOST
AND WHAT MAY BE SALVAGED NO ONE NOW CAN SAY, AND IT WILL TAKE A
GENERATION OF LITIGATION TO DETERMINE.  CERTAINLY THE STATES LOSE VERY
IMPORTANT CONTROLS AND VERY CONSIDERABLE REVENUES.  FN10 

THE RECKLESSNESS OF SUCH A COURSE IS EMPHASIZED WHEN WE CONSIDER THAT
CONGRESS HAS NOT ONE LINE OF LEGISLATION DELIBERATELY DESIGNED TO TAKE
OVER FEDERAL RESPONSIBILITY FOR THIS IMPORTANT AND COMPLICATED
ENTERPRISE.  FN11  THERE IS NO FEDERAL DEPARTMENT OR PERSONNEL WITH
NATIONAL EXPERIENCE IN THE SUBJECT ON WHICH CONGRESS CAN CALL FOR
COUNSEL IN FRAMING REGULATORY LEGISLATION.  A POORER TIME TO THRUST
UPON CONGRESS THE NECESSITY FOR FRAMING A PLAN FOR NATIONALIZATION OF
INSURANCE CONTROL WOULD BE HARD TO FIND. 

MOREOVER, WE HAVE NOT A HINT FROM CONGRESS THAT IT CONCURS IN THE
PLAN TO FEDERALIZE RESPONSIBILITY FOR INSURANCE SUPERVISION.  INDEED,
EVERY INDICATION IS TO THE CONTRARY.  FN12  IT WAS URGED TO DO SO BY
ONE PRESIDENT,  FN13  AND BY THE INSURANCE COMPANIES.  FN14  THE
DECISIONS OF THIS COURT CONFIRMING STATE POWER OVER INSURANCE HAVE BEEN
PARALLELED BY A HISTORY OF CONGRESSIONAL REFUSAL TO EXTEND FEDERAL
AUTHORITY INTO THE FIELD,  FN15  ALTHOUGH NO DECISION EVER HAS
EXPLICITLY DENIED THE POWER TO DO SO. 

THE ORDERLY WAY TO NATIONALIZE INSURANCE SUPERVISION, IF IT BE
DESIRABLE, IS NOT BY COURT DECISION BUT THROUGH LEGISLATION.  JUDICIAL
DECISION OPERATES ON THE STATES AND THE INDUSTRY RETROACTIVELY.  WE
CANNOT ANTICIPATE, AND MORE THAN LIKELY WE COULD NOT AGREE, WHAT
CONSEQUENCES UPON TAX LIABILITIES, REFUNDS, LIABILITIES UNDER STATE LAW
TO STATES OR TO INDIVIDUALS, AND EVEN CRIMINAL LIABILITIES WILL FOLLOW
THIS DECISION.  SUCH PRACTICAL CONSIDERATIONS YEARS AGO DETERRED THE
COURT FROM CHANGING ITS DOCTRINE AS TO INSURANCE N16.  CONGRESS, ON THE
OTHER HAND, IF IT THINKS THE TIME HAS COME TO TAKE INSURANCE REGULATION
INTO THE FEDERAL SYSTEM, MAY FORMULATE AND ANNOUNCE THE WHOLE SCOPE AND
EFFECT OF ITS ACTION IN ADVANCE, FIX A FUTURE EFFECTIVE DATE, AND AVOID
ALL THE CONFUSION, SURPRISE, AND INJUSTICE WHICH WILL BE CAUSED BY THE
ACTION OF THE COURT.  FN17 

A JUDGMENT AS TO WHEN THE EVIL OF A DECISIONAL ERROR EXCEEDS THE EVIL
OF AN INNOVATION MUST BE BASED ON VERY PRACTICAL AND IN PART UPON
POLICY CONSIDERATIONS.  WHEN, AS IN THIS PROBLEM, SUCH PRACTICAL AND
POLITICAL JUDGMENTS CAN BE MADE BY THE POLITICAL BRANCHES OF THE
GOVERNMENT, IT IS THE PART OF WISDOM AND SELF-RESTRAINT AND GOOD
GOVERNMENT FOR COURTS TO LEAVE THE INITIATIVE TO CONGRESS. 

MOREOVER, THIS IS THE METHOD OF RESPONSIBLE DEMOCRATIC GOVERNMENT. 
TO FORCE THE HAND OF CONGRESS IS NO MORE THE PROPER FUNCTION OF THE
JUDICIARY THAN TO TIE THE HANDS OF CONGRESS.  TO USE MY OFFICE, AT A
TIME LIKE THIS, AND WITH SO LITTLE JUSTIFICATION IN NECESSITY, TO
DISLOCATE THE FUNCTIONS AND REVENUES OF THE STATES  FN18  AND TO
CATAPULT CONGRESS INTO IMMEDIATE AND UNDIVIDED RESPONSIBILITY FOR
SUPERVISION OF THE NATION'S INSURANCE BUSINESSES IS MORE THAN I CAN
RECONCILE WITH MY VIEW OF THE FUNCTION OF THIS COURT IN OUR SOCIETY. 

FN1  INSURANCE COMMISSIONS WERE ESTABLISHED BY NEW HAMPSHIRE IN
1851(N.H. LAWS 1851, C. 1111); BY MASSACHUSETTS IN 1852(MASS.  LAWS
1852, C. 231); BY RHODE ISLAND IN 1855(R.I. LAWS, OCTOBER 1854, P. 17,
SEC. 17).  BY 1890, WHEN THE SHERMAN ACT BECAME LAW, SEVENTEEN STATES
HAD ESTABLISHED SUPERVISORY AUTHORITIES.  PATTERSON, THE INSURANCE
COMMISSIONER IN THE UNITED STATES (1927), P. 536, N. 62. 

FN2  SEE PARTICULARLY ARGUMENT OF NEW YORK LIFE INSURANCE COMPANY IN
NEW YORK LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495, 496(1913),
AND THAT FOR PAUL IN PAUL V. VIRGINIA, 8 WALL.  168(1868). 

FN3  PAUL V. VIRGINIA, 8 WALL.  168, 183(1868); HOOPER V. CALIFORNIA,
155 U.S. 648, 655(1895); NOBLE V. MITCHELL, 164 U.S. 367, 370(1896);
NEW YORK LIFE INS. CO. V. CRAVENS, 178 U.S. 389, 401(1900); NEW YORK
LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495(1913); BOTHWELL V.
BUCKBEE, MEARS CO., 275 U.S. 274; DUCAT V. CHICAGO, 10 WALL.  410;
LIVERPOOL INSURANCE CO. V. MASSACHUSETTS, 10 WALL.  566; PHILADELPHIA
FIRE ASSN. V. NEW YORK, 119 U.S. 110; NUTTING V. MASSACHUSETTS, 183
U.S. 553; NORTHWESTERN MUTUAL LIFE INS. CO. V. WISCONSIN, 247 U.S.
132. 

FN4  E.G., CHAMPION V. AMES, 188 U.S. 321(LOTTERY TICKETS); ELECTRIC
BOND & SHARE CO. V. SECURITIES & EXCHANGE COMM'N, 303 U.S. 419(HOLDING
COMPANIES).    FN5  E.G., PENNSYLVANIA R. CO. V. PUBLIC SERVICE COMM'N,
250 U.S. 566. 

FN6  MCCARROLL V. DIXIE GREYHOUND LINES, 309 U.S. 176; DUCKWORTH V.
ARKANSAS, 314 U.S. 390. 

FN7  FURST V. BREWSTER, 282 U.S. 493, AND CASES CITED. 

FN8  ALPHA PORTLAND CEMENT CO. V. MASSACHUSETTS, 268 U.S. 203; CUDAHY
PACKING CO. V. HINKLE, 278 U.S. 460. 

FN9  THE GOVERNMENT CONTENDS THAT AT LEAST COUNT ONE OF THE PRESENT
INDICTMENT CONFORMS TO THIS INTERPRETATION OF THE ANTITRUST LAWS. 
UNDER THE CRIMINAL APPEALS ACT WE HAVE NO JURISDICTION TO CONSTRUE OR
RECONSTRUE THE INDICTMENT.  MY VIEW WOULD REQUIRE REMAND TO THE
DISTRICT COURT OR THE CIRCUIT COURT OF APPEALS FOR CONSIDERATION IN THE
LIGHT OF OUR OPINION. 

FN10  IN 1943, GROSS PREMIUMS TAXES ON INSURANCE COMPANIES YIELDED 40
STATES AN AGGREGATE OF $96,108,000 AND THE REMAINING EIGHT AN ESTIMATED
$26,892,000, MAKING A TOTAL OF $123,000,000.  STATE TAX COLLECTIONS IN
1943, PAMPHLET PUBLISHED BY BUREAU OF THE CENSUS, P. 8. 

FN11  IT IS IMPOSSIBLE TO BELIEVE THAT CONGRESS, IF IT EVER INTENDED
TO ASSUME RESPONSIBILITY FOR GENERAL REGULATION OF INSURANCE, WOULD
HAVE MADE THE ANTITRUST LAWS THE SOLE MANIFESTATION OF ITS PURPOSE. 
ITS ONLY COMMAND IS TO REFRAIN FROM RESTRAINTS OF TRADE.  INTELLIGENT
INSURANCE REGULATION GOES MUCH FURTHER.  IT REQUIRES CAREFUL
SUPERVISION TO ASCERTAIN AND PROTECT SOLVENCY, REGULATION WHICH MAY BE
INCONSISTENT WITH UNBRIDLED RATE COMPETITION.  IT PRESCRIBES SOME
PROVISIONS OF POLICIES OF INSURANCE AND MANY OTHER MATTERS BEYOND THE
SCOPE OF THE SHERMAN ACT. 

ALSO IT REQUIRES SANCTIONS FOR OBEDIENCE FAR MORE EFFECTIVE THAN THE
$5,000 MAXIMUM FINE ON CORPORATIONS PRESCRIBED BY THE ANTITRUST LAWS. 
VIOLATION OF STATE LAWS ARE COMMONLY PUNISHABLE BY CANCELLATION OF
PERMISSION TO DO BUSINESS THEREIN - A DRASTIC SANCTION THAT REALLY
COMMANDS RESPECT. 

THE ANTITRUST LAW SANCTIONS ARE LITTLE BETTER THAN ABSURD WHEN
APPLIED TO HUGE CORPORATIONS ENGAGED IN GREAT ENTERPRISE.  IN THE TWO
RELATED MADISON OIL CASES (SEE UNITED STATES V. SOCONY-VACUUM OIL CO.,
310 U.S. 150) FIFTEEN OF THE SEVENTEEN CORPORATIONS CONVICTED HAD
COMBINED CAPITAL AND SURPLUS REPORTED TO BE $2,833,516,247.  THE TOTAL
CORPORATE FINES ON THEM WERE $255,000, MAKING A RATIO OF FINES TO
CORPORATE CAPITAL AND SURPLUS OF LESS THAN 1/100 OF 1 PER CENT.  IN
ADDITION, FINES OF $180,000 WERE ASSESSED AGAINST INDIVIDUALS.  IN THE
AUTOMOBILE FINANCING CASE (SEE UNITED STATES V. GENERAL MOTORS CORP.,
121 F.2D 376, CERT. DENIED, 314 U.S. 618) GENERAL MOTORS CORPORATION,
THREE WHOLLY OWNED SUBSIDIARIES AND NO INDIVIDUALS WERE CONVICTED.  THE
FINES WERE $20,000.  CAPITAL AND SURPLUS WERE THEN REPORTED AT
$1,047,840,321, THE FINE BEING SOMEWHAT LESS THAN 1/500 OF 1 PER CENT
THEREOF. 

IN EACH CASE THE CORPORATE FINES WERE $5,000, THE MAXIMUM PERMITTED
BY THE STATUTE.  15 U.S.C. SEC. 1. 

FN12  THE LAST AGENCY TO INVESTIGATE INSURANCE PROBLEMS WAS THE
TEMPORARY NATIONAL ECONOMIC COMMITTEE.  IT MADE NO RECOMMENDATION OF
FEDERAL CONTROL.  ITS CHAIRMAN, SENATOR O'MAHONEY, AFTER REVIEWING
CAREFULLY THE PROBLEMS CAUSED BY THE CONCENTRATION OF ECONOMIC POWER IN
THE HANDS OF THE INSURANCE COMPANIES AND THE ABUSES OF THE BUSINESS,
SAID:  "THEREFORE I SAY AGAIN THAT PERSONALLY I WOULD NOT SUPPORT ANY
LAW THAT WOULD UNDERTAKE TO DO AWAY WITH STATE REGULATION OF INSURANCE,
AND THERE NEVER HAS BEEN SUGGESTED TO ME OR TO ANY MEMBER OF THE TNEC
OR TO THE COMMITTEE AS A WHOLE ANY THOUGHT OF DOING AWAY WITH STATE
REGULATION OR IMPOSING FEDERAL SUPERVISION."  26 AMERICAN BAR
ASSOCIATION JOURNAL 913.  BOTH DOMINANT POLITICAL PARTIES HAVE
SUPPORTED THE PRESENT SYSTEM.  IN 1940, THE DEMOCRATIC PLATFORM
CONTAINED THIS PROVISION:  "WE FAVOR STRICT SUPERVISION OF ALL FORMS OF
THE INSURANCE BUSINESS BY THE SEVERAL STATES FOR THE PROTECTION OF
POLICYHOLDERS AND THE PUBLIC."  THE REPUBLICAN PLATFORM OF THAT YEAR
CONTAINED THIS PROVISION:  "WE FAVOR A CONTINUANCE OF REGULATION OF
INSURANCE BY THE SEVERAL STATES." 

FN13  PRESIDENT THEODORE ROOSEVELT TWICE RECOMMENDED THAT CONGRESS
ASSUME CONTROL OF INSURANCE.  MESSAGE OF DECEMBER 6, 1904, 39 CONG.
REC. 12, AND MESSAGE OF DECEMBER 5, 1905, 40 CONG. REC. 95. 

FN14  SEE INSURANCE BLUE BOOK (CENTENNIAL ISSUE, 1876) CH. VI, FIRE
INSURANCE, P. 32. 

FN15  IN 1866, A BILL WAS INTRODUCED IN THE HOUSE, PROVIDING FOR
CREATION OF A NATIONAL BUREAU OF INSURANCE IN THE TREASURY DEPARTMENT. 
IT WAS NOT PASSED.  H.R. 738, 39TH CONG., 1ST SESS. 

IN 1868, A BILL WAS INTRODUCED IN THE SENATE PROPOSING A NATIONAL
BUREAU OF INSURANCE, BUT NEVER PASSED.  S. 299, 40TH CONG., 2D SESS. 

IN 1892, A BILL WAS INTRODUCED IN THE HOUSE CREATING THE OFFICE OF
COMMISSIONER OF INSURANCE.  IT WAS NEVER REPORTED OUT OF COMMITTEE. 
H.R. 9629, 52D CONG., 1ST SESS. 

IN 1897, A BILL WAS INTRODUCED IN THE SENATE TO DECLARE THAT
INSURANCE COMPANIES DOING BUSINESS OUTSIDE OF THE STATES OF THEIR
INCORPORATION WERE TO BE DEEMED TO BE ENGAGED IN INTERSTATE COMMERCE. 
IT WAS NOT REPORTED OUT OF COMMITTEE.  S. 2736, 55TH CONG., 2D SESS. 

AFTER PRESIDENT ROOSEVELT'S RECOMMENDATION OF 1904, SENATOR DRYDEN
INTRODUCED A BILL IN THE SENATE TO ESTABLISH A BUREAU OF INSURANCE IN
THE DEPARTMENT OF COMMERCE.  THE BILL DIED IN COMMITTEE.  S. 7277, 58TH
CONG., 3D SESS. 

AFTER PRESIDENT ROOSEVELT'S SECOND RECOMMENDATION, THE HOUSE
JUDICIARY COMMITTEE REPORTED THAT CONGRESS HAD NO POWER TO REGULATE
INSURANCE, AND SAID:  "THE VIEWS OF THE SUPREME COURT HAVE PRACTICALLY
MET THE APPROVAL OF THE BAR AND BUSINESS MEN OF THE UNITED STATES AS
BEING IN ACCORDANCE WITH LAW AND COMMON SENSE."  H.R. REP. 2491, 59TH
CONG., 1ST SESS., MARCH 23, 1906, P. 14. 

THE SENATE COMMITTEE ON THE JUDICIARY MADE A SIMILAR REPORT.  SEN.
REP. 4406, 59TH CONG., 1ST SESS., 1906. 

IN 1914-15, RESOLUTIONS WERE INTRODUCED IN BOTH THE HOUSE AND THE
SENATE PROPOSING AN AMENDMENT TO THE CONSTITUTION TO THE EFFECT THAT
CONGRESS SHOULD HAVE POWER TO REGULATE THE BUSINESS OR COMMERCE OF
INSURANCE THROUGHOUT THE UNITED STATES AND ITS TERRITORIES OR
POSSESSIONS.  THE RESOLUTIONS WERE NOT REPORTED OUT OF THE JUDICIARY
COMMITTEE.  S.J. RES. 103, 63D CONG., 2D SESS.; H.J. RES. 194, 63D
CONG., 2D SESS.; S.J. RES. 58, 64TH CONG., 1ST SESS. 

IN 1933, A RESOLUTION WAS INTRODUCED FOR A SIMILAR CONSTITUTIONAL
AMENDMENT WHICH DIED IN COMMITTEE.  S.J. RES. 51, 73D CONG., 1ST SESS. 

MOREOVER, BY EXCEPTIONS AND EXEMPTIONS CONGRESS HAS INDICATED A CLEAR
INTENT TO AVOID INTERFERENCE WITH STATE SUPERVISION.  INSURANCE
CORPORATIONS ARE EXCEPTED FROM THOSE WHO MAY BECOME BANKRUPTS.  11
U.S.C. SEC. 22.  INSURANCE ISSUED BY ANY ISSUER UNDER STATE SUPERVISION
IS EXEMPTED FROM THE SECURITIES ACT.  15 U.S.C. SEC. 77C (A)(8). 
INSURANCE COMPANIES SUPERVISED BY STATE AUTHORITY ARE EXEMPTED FROM
REGULATION AS INVESTMENT COMPANIES.  15 U.S.C. SECS. 80A-2(A)(17) AND
80A-3(C)(3). 

FN16  IN NEW YORK LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495,
502, THE COURT SAID:  "TO REVERSE THE CASES, THEREFORE, WOULD REQUIRE
US TO PROMULGATE A NEW RULE OF CONSTITUTIONAL INHIBITION UPON THE
STATES AND WHICH WOULD COMPEL A CHANGE OF THEIR POLICY AND A
READJUSTMENT OF THEIR LAWS.  SUCH RESULT NECESSARILY URGES AGAINST A
CHANGE OF DECISION." 

FN17  IN RESISTING PRESSURE TO FEDERALIZE INSURANCE SUPERVISION
CONGRESS HAS FOLLOWED THE ADVICE OF SOME OF THE BEST INFORMED CHAMPIONS
OF THE PUBLIC INTEREST ON INSURANCE PROBLEMS.  ONE WAS LOUIS D.
BRANDEIS.  SPEAKING AS COUNSEL FOR THE PROTECTIVE COMMITTEE OF POLICY
HOLDERS IN THE EQUITABLE LIFE ASSURANCE SOCIETY, BEFORE THE COMMERCIAL
CLUB OF BOSTON, ON OCTOBER 26, 1905, MR. BRANDEIS SAID: 

"THE SOLE EFFECT OF A FEDERAL LAW WOULD BE - THE SOLE PURPOSE OF THE
DRYDEN BILL (SEE NOTE 15, SUPRA) MUST HAVE BEEN - TO FREE THE COMPANIES
FROM THE CAREFUL SCRUTINY OF THE COMMISSIONERS OF SOME OF THE STATES. 
IT SEEKS TO ROB THE STATE EVEN OF THE RIGHT TO PROTECT ITS OWN CITIZENS
FROM THE LEGALIZED ROBBERY TO WHICH PRESENT INSURANCE MEASURES SUBJECT
THE CITIZENS, FOR BY THE TERMS OF THE BILL A FEDERAL LICENSE WOULD
SECURE THE RIGHT TO DO BUSINESS WITHIN THE BORDERS OF THE STATE,
REGARDLESS OF THE STATE PROHIBITIONS, FREE FROM THE STATE'S PROTECTIVE
REGULATIONS.  WITH A FRANKNESS WHICH IS UNUSUAL - AND AN EFFRONTERY
WHICH IS COMMON - AMONG THE INSURANCE MAGNATES - THIS BILL IS
INTRODUCED IN THE SENATE BY JOHN F. DRYDEN, THE PRESIDENT OF THE
PRUDENTIAL LIFE INSURANCE COMPANY - THE COMPANY WHICH PAYS TO
STOCKHOLDERS ANNUAL DIVIDENDS EQUIVALENT TO 219.78 PER CENT. FOR EACH
DOLLAR PAID IN ON THE STOCK; THE COMPANY WHICH DEVOTES ITSELF MAINLY TO
INSURING THE WORKING MEN AT AN EXPENSE OF OVER 37.28 CENTS ON EVERY
DOLLAR OF PREMIUMS PAID; THE COMPANY WHICH, IN 1904, MADE THE WORST
RECORD OF LAPSED AND SURRENDERED INDUSTRIAL POLICIES.  ... 

"FEDERAL SUPERVISION IS ALSO ADVOCATED BY MR. JAMES M. BECK (FORMERLY
ASSISTANT ATTORNEY GENERAL OF THE UNITED STATES), THE COUNSEL FOR THE
MUTUAL LIFE INSURANCE COMPANY, AND HIS MAIN ARGUMENT AGAINST STATE
SUPERVISION APPEARS TO BE THAT THE COMPANIES PAY, IN THE AGGREGATE, FOR
FEES AND TAXES IN THE SEVERAL STATES $10,000,000, WHICH HE SAYS IS
TWICE AS MUCH AS IS NECESSARY TO COVER THE EXPENSE OF PROPER
SUPERVISION.  TEN MILLION DOLLARS IS A LARGE SUM IN ITSELF, BUT A VERY
SMALL ONE COMPARED WITH THE AGGREGATE ASSETS OR THE AGGREGATE EXPENSE
OF MANAGEMENT.  MR. BECK'S COMPANY PAID IN 1904 $1,138,663 IN TAXES AND
FEES.  ITS MANAGEMENT EXPENSES WERE $15,517,520, OR NEARLY FOURTEEN
TIMES AS MUCH.  OUR MASSACHUSETTS SAVINGS BANKS PAID IN THE YEAR ENDING
OCTOBER 31, 1904, $1,627,794.46 IN TAXES TO THIS COMMONWEALTH:  THAT IS
$80,890.02 MORE THAN THE WHOLE EXPENSE OF MANAGEMENT, WHICH WAS
$1,546,904.44. 

"DOUBTLESS THE INSURANCE DEPARTMENTS OF SOME STATES ARE SUBJECTS FOR
JUST CRITICISM.  IN MANY OF THE STATES THE DEPARTMENT IS INEFFICIENT,
IN SOME DOUBTLESS CORRUPT.  BUT IS THERE ANYTHING IN OUR EXPERIENCE OF
FEDERAL SUPERVISION OF OTHER DEPARTMENTS OF BUSINESS WHICH SHOULD LEAD
US TO ASSUME THAT IT WILL BE FREER FROM GROUNDS OF CRITICISM OR ON THE
WHOLE MORE EFFICIENT THAN THE BEST INSURANCE DEPARTMENT OF ANY OF THE
STATES?  FOR IT MUST BE REMEMBERED THAT AN EFFICIENT SUPERVISION BY THE
DEPARTMENT OF ANY STATE WILL IN EFFECT PROTECT ALL THE POLICYHOLDERS OF
THE COMPANY WHEREVER THEY MAY RESIDE.  LET US REMEMBER RATHER THE
INEFFECTIVENESS FOR EIGHTEEN LONG YEARS OF THE INTERSTATE COMMERCE
COMMISSION TO DEAL WITH RAILROAD ABUSES, THE FUTILE INVESTIGATION BY
COMMISSIONER GARFIELD OF THE BEEF TRUST, AND THE UNFINISHED
INVESTIGATION INTO THE AFFAIRS OF THE OIL TRUST IN WHICH HE HAS SINCE
BEEN ENGAGED.  FEDERAL SUPERVISION WOULD SERVE ONLY TO CENTRALIZE STILL
FURTHER THE POWER OF OUR GOVERNMENT AND TO INCREASE STILL FURTHER THE
POWERS OF THE CORPORATIONS." 

MR. JUSTICE BRANDEIS FOR A UNANIMOUS COURT WROTE, IN BOTHWELL V.
BUCKBEE, MEARS CO., 275 U.S. 274, 276(1927):  "A CONTRACT OF INSURANCE,
ALTHOUGH MADE WITH A CORPORATION HAVING ITS OFFICE IN A STATE OTHER
THAN THAT IN WHICH THE INSURED RESIDES AND IN WHICH THE INTEREST
INSURED IS LOCATED, IS NOT INTERSTATE COMMERCE."  HE JOINED IN OTHER
SIMILAR DECISIONS IN NORTHWESTERN MUTUAL LIFE INS. CO. V. WISCONSIN,
247 U.S. 132; NATIONAL UNION FIRE INS. CO. V. WANBERG, 260 U.S. 71. 

FN18  THIRTY-FIVE STATES OF THE UNION HAVE FILED AMICUS CURIAE BRIEFS
WITH US, PROTESTING AGAINST THE DECISION WHICH THE COURT IS
PROMULGATING. 
..END :



LYONS V. OKLAHOMA, 322 U.S. 596 


NO. 433.  ARGUED APRIL 26, 1944.  - DECIDED JUNE 5, 1944.  - 138 P.2D
142, AFFIRMED. 


1.  THE INSTRUCTION TO THE JURY IN THIS CASE FAIRLY RAISED THE
QUESTION WHETHER THE CHALLENGED CONFESSION WAS VOLUNTARY, AND DID NOT
DENY TO THE DEFENDANT ANY RIGHT UNDER THE FOURTEENTH AMENDMENT.  P.
601. 

2.  THE FOURTEENTH AMENDMENT DOES NOT FORBID THE USE, AT A TRIAL OF
AN ACCUSED FROM WHOM A CONFESSION WAS COERCED, OF A SUBSEQUENT
VOLUNTARY CONFESSION.  P. 603. 

3.  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.  P. 602. 

4.  THE EVIDENCE IN THIS CASE WARRANTED THE INFERENCES THAT THE
EFFECTS OF THE COERCION WHICH VITIATED AN EARLIER CONFESSION BY THE
ACCUSED HAD BEEN DISSIPATED PRIOR TO HIS SECOND CONFESSION AND THAT THE
LATTER WAS VOLUNTARY; AND THE CONVICTION WILL NOT BE SET ASIDE AS
VIOLATIVE OF DUE PROCESS.  P. 604. 

5.  THE FOURTEENTH AMENDMENT PROTECTS AGAINST SUCH CONDUCT OF
CRIMINAL TRIALS AS AMOUNTS TO A DISREGARD OF THAT FUNDAMENTAL FAIRNESS
ESSENTIAL TO THE VERY CONCEPT OF JUSTICE AND AS NECESSARILY PREVENTS A
FAIR TRIAL, BUT DOES NOT PROTECT AGAINST MERE ERROR IN JURY VERDICTS. 
P. 605. 

LYONS V. OKLAHOMA. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA. 

CERTIORARI, 320 U.S. 732, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR MURDER. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT BRINGS TO THIS COURT FOR REVIEW A CONVICTION OBTAINED WITH
THE AID OF A CONFESSION WHICH FURNISHED, IF VOLUNTARY, MATERIAL
EVIDENCE TO SUPPORT THE CONVICTION.  AS THE QUESTIONED CONFESSION
FOLLOWED A PREVIOUS CONFESSION WHICH WAS GIVEN ON THE SAME DAY AND
WHICH WAS ADMITTEDLY INVOLUNTARY,  FN1  THE ISSUE IS THE VOLUNTARY
CHARACTER OF THE SECOND CONFESSION UNDER THE CIRCUMSTANCES WHICH
EXISTED AT THE TIME AND PLACE OF ITS SIGNATURE AND, PARTICULARLY,
BECAUSE OF THE ALLEGED CONTINUED INFLUENCE OF THE UNLAWFUL INDUCEMENTS
WHICH VITIATED THE PRIOR CONFESSION. 

THE PETITIONER WAS CONVICTED IN THE STATE DISTRICT COURT OF CHOCTAW
COUNTY, OKLAHOMA, ON AN INFORMATION CHARGING HIM AND ANOTHER WITH THE
CRIME OF MURDER.  THE JURY FIXED HIS PUNISHMENT AT LIFE IMPRISONMENT. 
THE CONVICTION WAS AFFIRMED BY THE CRIMINAL COURT OF APPEALS, 77 OKL.
CR. - , 138 P.2D 142, REHEARING 140 P.2D 248, AND THIS COURT GRANTED
CERTIORARI, 320 U.S. 732, UPON THE PETITIONER'S REPRESENTATION THAT
THERE HAD BEEN ADMITTED AGAINST HIM AN INVOLUNTARY CONFESSION PROCURED
UNDER CIRCUMSTANCES WHICH MADE ITS USE IN EVIDENCE A VIOLATION OF HIS
RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  FN2 

PRIOR TO SUNDAY, DECEMBER 31, 1939, ELMER ROGERS LIVED WITH HIS WIFE
AND THREE SMALL SONS IN A TENANT HOUSE SITUATED A SHORT DISTANCE
NORTHWEST OF FORT TOWSON, CHOCTAW COUNTY, OKLAHOMA.  LATE IN THE
EVENING OF THAT DAY MR. AND MRS. ROGERS AND A FOUR-YEAR-OLD SON ELVIE
WERE MURDERED AT THEIR HOME AND THE HOUSE WAS BURNED TO CONCEAL THE
CRIME. 

SUSPICION WAS DIRECTED TOWARD THE PETITIONER LYONS AND A CONFEDERATE,
VAN BIZZELL.  ON JANUARY 11, 1940, LYONS WAS ARRESTED BY A SPECIAL
POLICEMAN AND ANOTHER OFFICER WHOSE EXACT OFFICIAL STATUS IS NOT
DISCLOSED BY THE RECORD.  THE FIRST FORMAL CHARGE THAT APPEARS IS AT
LYONS' HEARING BEFORE A MAGISTRATE ON JANUARY 27, 1940.  IMMEDIATELY
AFTER HIS ARREST THERE WAS AN INTERROGATION OF ABOUT TWO HOURS AT THE
JAIL.  AFTER HE HAD BEEN IN JAIL ELEVEN DAYS HE WAS AGAIN QUESTIONED,
THIS TIME IN THE COUNTY PROSECUTOR'S OFFICE.  THIS INTERROGATION BEGAN
ABOUT SIX-THIRTY IN THE EVENING, AND ON THE FOLLOWING MORNING BETWEEN
TWO AND FOUR PRODUCED A CONFESSION.  THIS QUESTIONING IS THE BASIS OF
THE OBJECTION TO THE INTRODUCTION AS EVIDENCE OF A SECOND CONFESSION
WHICH WAS OBTAINED LATER IN THE DAY AT THE STATE PENITENTIARY AT
MCALESTER BY WARDEN JESS DUNN AND INTRODUCED IN EVIDENCE AT THE TRIAL. 
THERE WAS ALSO A THIRD CONFESSION, ORAL, WHICH WAS ADMITTED ON THE
TRIAL WITHOUT OBJECTION BY PETITIONER.  THIS WAS GIVEN TO A GUARD AT
THE PENITENTIARY TWO DAYS AFTER THE SECOND.  ONLY THE PETITIONER,
POLICE, PROSECUTING AND PENITENTIARY OFFICIALS WERE PRESENT AT ANY OF
THESE INTERROGATIONS, EXCEPT THAT A PRIVATE CITIZEN WHO DROVE THE CAR
THAT BROUGHT LYONS TO MCALESTER WITNESSED THIS SECOND CONFESSION. 

LYONS IS MARRIED AND WAS 21 OR 22 YEARS OF AGE AT THE TIME OF THE
ARREST.  THE EXTENT OF HIS EDUCATION OR HIS OCCUPATION DOES NOT
APPEAR.  HE SIGNED THE SECOND CONFESSION.  FROM THE TRANSCRIPT OF HIS
EVIDENCE, THERE IS NO INDICATION OF A SUBNORMAL INTELLIGENCE.  HE HAD
SERVED TWO TERMS IN THE PENITENTIARY - ONE FOR CHICKEN STEALING AND ONE
FOR BURGLARY.  APPARENTLY HE LIVED WITH VARIOUS RELATIVES. 

WHILE PETITIONER WAS COMPETENTLY REPRESENTED BEFORE AND AT THE TRIAL,
COUNSEL WAS NOT SUPPLIED HIM UNTIL AFTER HIS PRELIMINARY EXAMINATION,
WHICH WAS SUBSEQUENT TO THE CONFESSIONS.  HIS WIFE AND FAMILY VISITED
HIM BETWEEN HIS ARREST AND THE FIRST CONFESSION.  THERE IS TESTIMONY BY
LYONS OF PHYSICAL ABUSE BY THE POLICE OFFICERS AT THE TIME OF HIS
ARREST AND FIRST INTERROGATION ON JANUARY 11TH.  HIS SISTER VISITED HIM
IN JAIL SHORTLY AFTERWARDS AND TESTIFIED AS TO MARKS OF VIOLENCE ON HIS
BODY AND A BLACKENED EYE.  LYONS SAYS THAT THIS VIOLENCE WAS
ACCOMPANIED BY THREATS OF FURTHER HARM UNLESS HE CONFESSED.  THIS
EVIDENCE WAS DENIED IN TOTO BY OFFICERS WHO WERE SAID TO HAVE
PARTICIPATED. 

ELEVEN DAYS LATER THE SECOND INTERROGATION OCCURRED.  AGAIN THE
EVIDENCE OF ASSAULT IS CONFLICTING.  ELEVEN OR TWELVE OFFICIALS WERE IN
AND OUT OF THE PROSECUTOR'S SMALL OFFICE DURING THE NIGHT.  LYONS SAYS
THAT HE AGAIN SUFFERED ASSAULT.  DENIALS OF VIOLENCE WERE MADE BY ALL
THE PARTICIPANTS ACCUSED BY LYONS EXCEPT THE COUNTY ATTORNEY, HIS
ASSISTANT, THE JAILER AND A HIGHWAY PATROLMAN.  DISINTERESTED WITNESSES
TESTIFIED TO STATEMENTS BY AN INVESTIGATOR WHICH TENDED TO IMPLICATE
THAT OFFICER IN THE USE OF FORCE, AND THE PROSECUTOR IN CROSS
EXAMINATION USED LANGUAGE WHICH GAVE COLOR TO DEFENDANT'S CHARGE.  IT
IS NOT DISPUTED THAT THE INQUIRY CONTINUED UNTIL TWO-THIRTY IN THE
MORNING BEFORE AN ORAL CONFESSION WAS OBTAINED AND THAT A PAN OF THE
VICTIMS' BONES WAS PLACED IN LYONS' LAP BY HIS INTERROGATORS TO BRING
ABOUT HIS CONFESSION.  AS THE CONFESSION OBTAINED AT THIS TIME WAS NOT
OFFERED IN EVIDENCE, THE ONLY BEARING THESE EVENTS HAVE HERE IS THEIR
TENDENCY TO SHOW THAT THE LATER CONFESSION AT MCALESTER WAS
INVOLUNTARY. 

AFTER THE ORAL CONFESSION IN THE EARLY MORNING HOURS OF JANUARY 23,
LYONS WAS TAKEN TO THE SCENE OF THE CRIME AND SUBJECTED TO FURTHER
QUESTIONING ABOUT THE INSTRUMENTS WHICH WERE USED TO COMMIT THE
MURDERS.  HE WAS RETURNED TO THE JAIL ABOUT EIGHT-THIRTY A.M. AND LEFT
THERE UNTIL EARLY AFTERNOON.  AFTER THAT THE PRISONER WAS TAKEN TO A
NEARBY TOWN OF ANTLERS, OKLAHOMA.  LATER IN THE DAY A DEPUTY SHERIFF
AND A PRIVATE CITIZEN TOOK THE PETITIONER TO THE PENITENTIARY.  THERE,
SOMETIME BETWEEN EIGHT AND ELEVEN O'CLOCK ON THAT SAME EVENING, THE
PETITIONER SIGNED THE SECOND CONFESSION. 

WHEN THE CONFESSION WHICH WAS GIVEN AT THE PENITENTIARY WAS OFFERED,
OBJECTION WAS MADE ON THE GROUND THAT FORCE WAS PRACTICED TO SECURE IT
AND THAT, EVEN IF NO FORCE WAS THEN PRACTICED, THE FEAR INSTILLED BY
THE PRISONER'S FORMER TREATMENT AT HUGO ON HIS FIRST AND SECOND
INTERROGATIONS CONTINUED SUFFICIENTLY COERCIVE IN ITS EFFECT TO REQUIRE
THE REJECTION OF THE SECOND CONFESSION. 

THE JUDGE, IN ACCORDANCE WITH OKLAHOMA PRACTICE AND AFTER HEARING
EVIDENCE FROM THE PROSECUTION AND THE DEFENSE IN THE ABSENCE OF THE
JURY, FIRST PASSED FAVORABLY UPON ITS ADMISSIBILITY AS A MATTER OF LAW,
LYONS V. STATE, 138 P.2D 142, 163; CF. MCNABB V. UNITED STATES, 318
U.S. 332, 338, N. 5, AND THEN, AFTER WITNESSES TESTIFIED BEFORE THE
JURY AS TO THE VOLUNTARY CHARACTER OF THE CONFESSION, SUBMITTED THE
GUILT OR INNOCENCE OF THE DEFENDANT TO THE JURY UNDER A FULL
INSTRUCTION, APPROVED BY THE CRIMINAL COURT OF APPEALS, TO THE EFFECT
THAT VOLUNTARY CONFESSIONS ARE ADMISSIBLE AGAINST THE PERSON MAKING
THEM BUT ARE TO BE "CAREFULLY SCRUTINIZED AND RECEIVED WITH GREAT
CAUTION" BY THE JURY AND REJECTED IF OBTAINED BY PUNISHMENT,
INTIMIDATION OR THREATS.  IT WAS ADDED THAT THE MERE FACT THAT A
CONFESSION WAS MADE IN ANSWER TO INQUIRIES "WHILE UNDER ARREST OR IN
CUSTODY" DOES NOT PREVENT CONSIDERATION OF THE EVIDENCE IF MADE "FREELY
AND VOLUNTARILY."  THE INSTRUCTION DID NOT SPECIFICALLY COVER THE
DEFENDANT'S CONTENTION, EMBODIED IN A REQUESTED INSTRUCTION, THAT THE
SECOND CONFESSION SPRANG FROM THE FEAR ENGENDERED BY THE TREATMENT HE
HAD RECEIVED AT HUGO. 

THE MERE QUESTIONING OF A SUSPECT WHILE IN THE CUSTODY OF POLICE
OFFICERS IS NOT PROHIBITED EITHER AS A MATTER OF COMMON LAW OR DUE
PROCESS.  LISENBA V. CALIFORNIA, 314 U.S. 219, 239-241; WAN V. UNITED
STATES, 266 U.S. 1, 14.  THE QUESTION OF HOW SPECIFIC AN INSTRUCTION IN
A STATE COURT MUST BE UPON THE INVOLUNTARY CHARACTER OF A CONFESSION
IS, AS A MATTER OF PROCEDURE OR PRACTICE, SOLELY FOR THE COURTS OF THE
STATE.  WHEN THE STATE-APPROVED INSTRUCTION FAIRLY RAISES THE QUESTION
OF WHETHER OR NOT THE CHALLENGED CONFESSION WAS VOLUNTARY, AS THIS
INSTRUCTION DID, THE REQUIREMENTS OF DUE PROCESS, UNDER THE FOURTEENTH
AMENDMENT, ARE SATISFIED AND THIS COURT WILL NOT REQUIRE A MODIFICATION
OF LOCAL PRACTICE TO MEET VIEWS THAT IT MIGHT HAVE AS TO THE ADVANTAGES
OF CONCRETENESS.  THE INSTRUCTION GIVEN SATISFIES THE LEGAL
REQUIREMENTS OF THE STATE OF OKLAHOMA AS TO THE PARTICULARITY WITH
WHICH ISSUES MUST BE PRESENTED TO ITS JURIES, LYONS V. STATE, 138 P.2D
142, 164, AND IN VIEW OF THE SCOPE OF THAT INSTRUCTION, IT WAS
SUFFICIENT TO PRECLUDE ANY CLAIM OF VIOLATION OF THE FOURTEENTH
AMENDMENT. 

THE FEDERAL QUESTION PRESENTED IS WHETHER THE SECOND CONFESSION WAS
GIVEN UNDER SUCH CIRCUMSTANCES THAT ITS USE AS EVIDENCE AT THE TRIAL
CONSTITUTES A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, WHICH REQUIRES THAT STATE CRIMINAL PROCEEDINGS "SHALL BE
CONSISTENT WITH THE FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE." 
HEBERT V. LOUISIANA, 272 U.S. 312, 316; MOONEY V. HOLOHAN, 294 U. S.
103, 112; BUCHALTER V. NEW YORK, 319 U.S. 427, 429. 

NO FORMULA TO DETERMINE THIS QUESTION BY ITS APPLICATION TO THE FACTS
OF A GIVEN CASE CAN BE DEVISED.  HOPT V. UTAH, 110 U.S. 574, 583; BETTS
V. BRADY, 316 U.S. 455, 462.  HERE IMPROPER METHODS WERE USED TO OBTAIN
A CONFESSION, BUT THAT CONFESSION WAS NOT USED AT THE TRIAL.  LATER, IN
ANOTHER PLACE AND WITH DIFFERENT PERSONS PRESENT, THE ACCUSED AGAIN
TOLD THE FACTS OF THE CRIME.  INVOLUNTARY CONFESSIONS, OF COURSE, MAY
BE GIVEN EITHER SIMULTANEOUSLY WITH OR SUBSEQUENTLY TO UNLAWFUL
PRESSURES, FORCE OR THREATS.  THE QUESTION OF WHETHER THOSE CONFESSIONS
SUBSEQUENTLY GIVEN ARE THEMSELVES VOLUNTARY DEPENDS ON THE INFERENCES
AS TO THE CONTINUING EFFECT OF THE COERCIVE PRACTICES WHICH MAY FAIRLY
BE DRAWN FROM THE SURROUNDING CIRCUMSTANCES.  LISENBA V. CALIFORNIA,
314 U.S. 219, 240.  THE VOLUNTARY OR INVOLUNTARY CHARACTER OF A
CONFESSION IS DETERMINED BY A CONCLUSION AS TO WHETHER THE ACCUSED, AT
THE TIME HE CONFESSES, IS IN POSSESSION OF "MENTAL FREEDOM" TO CONFESS
TO OR DENY A SUSPECTED PARTICIPATION IN A CRIME.  ASHCRAFT V.
TENNESSEE, 322 U.S. 143, 154; HYSLER V. FLORIDA, 315 U.S. 411, 413. 

WHEN CONCEDED FACTS EXIST WHICH ARE IRRECONCILABLE WITH SUCH MENTAL
FREEDOM, REGARDLESS OF THE CONTRARY CONCLUSIONS OF THE TRIERS OF FACT,
WHETHER JUDGE OR JURY, THIS COURT CANNOT AVOID RESPONSIBILITY FOR SUCH
INJUSTICE BY LEAVING THE BURDEN OF ADJUDICATION SOLELY IN OTHER HANDS. 
BUT WHERE THERE IS A DISPUTE AS TO WHETHER THE ACTS WHICH ARE CHARGED
TO BE COERCIVE ACTUALLY OCCURRED, OR WHERE DIFFERENT INFERENCES MAY
FAIRLY BE DRAWN FROM ADMITTED FACTS, THE TRIAL JUDGE AND THE JURY ARE
NOT ONLY IN A BETTER POSITION TO APPRAISE THE TRUTH OR FALSITY OF THE
DEFENDANT'S ASSERTIONS FROM THE DEMEANOR OF THE WITNESSES BUT THE LEGAL
DUTY IS UPON THEM TO MAKE THE DECISION.  LISENBA V. CALIFORNIA, SUPRA,
P. 238. 

REVIEW HERE DEALS WITH CIRCUMSTANCES WHICH REQUIRE EXAMINATION INTO
THE POSSIBILITY AS TO WHETHER THE JUDGE AND JURY IN THE TRIAL COURT
COULD REASONABLY CONCLUDE THAT THE MCALESTER CONFESSION WAS VOLUNTARY. 
THE FACT THAT THERE IS EVIDENCE WHICH WOULD JUSTIFY A CONTRARY
CONCLUSION IS IMMATERIAL.  TO TRIERS OF FACT IS LEFT THE DETERMINATION
OF THE TRUTH OR ERROR OF THE TESTIMONY OF PRISONER AND OFFICIAL ALIKE. 
IT IS BEYOND QUESTION THAT IF THE TRIERS OF FACT ACCEPTED AS TRUE THE
EVIDENCE OF THE IMMEDIATE EVENTS AT MCALESTER, WHICH WERE DETAILED BY
WARDEN DUNN AND THE OTHER WITNESSES, THE VERDICT WOULD BE THAT THE
CONFESSION WAS VOLUNTARY, SO THAT THE PETITIONER'S CASE RESTS UPON THE
THEORY THAT THE MCALESTER CONFESSION WAS THE UNAVOIDABLE OUTGROWTH OF
THE EVENTS AT HUGO. 

THE FOURTEENTH AMENDMENT DOES NOT PROTECT ONE WHO HAS ADMITTED HIS
GUILT BECAUSE OF FORBIDDEN INDUCEMENTS AGAINST THE USE AT TRIAL OF HIS
SUBSEQUENT CONFESSIONS UNDER ALL POSSIBLE CIRCUMSTANCES.  THE
ADMISSIBILITY OF THE LATER CONFESSION DEPENDS UPON THE SAME TEST - IS
IT VOLUNTARY.  OF COURSE THE FACT THAT THE EARLIER STATEMENT WAS
OBTAINED FROM THE PRISONER BY COERCION IS TO BE CONSIDERED IN
APPRAISING THE CHARACTER OF THE LATER CONFESSION.  THE EFFECT OF
EARLIER ABUSE MAY BE SO CLEAR AS TO FORBID ANY OTHER INFERENCE THAN
THAT IT DOMINATED THE MIND OF THE ACCUSED TO SUCH AN EXTENT THAT THE
LATER CONFESSION IS INVOLUNTARY.  IF THE RELATION BETWEEN THE EARLIER
AND LATER CONFESSION IS NOT SO CLOSE THAT ONE MUST SAY THE FACTS OF ONE
CONTROL THE CHARACTER OF THE OTHER, THE INFERENCE IS ONE FOR THE TRIERS
OF FACT AND THEIR CONCLUSION, IN SUCH AN UNCERTAIN SITUATION, THAT THE
CONFESSION SHOULD BE ADMITTED AS VOLUNTARY, CANNOT BE A DENIAL OF DUE
PROCESS.  CANTY V. ALABAMA, 309 U.S. 629, CANNOT BE SAID TO GO FURTHER
THAN TO HOLD THAT THE ADMISSION OF CONFESSIONS OBTAINED BY ACTS OF
OPPRESSION IS SUFFICIENT TO REQUIRE A REVERSAL OF A STATE CONVICTION BY
THIS COURT.  OUR JUDGMENT THERE RELIED SOLELY UPON CHAMBERS V. FLORIDA,
309 U.S. 227.  THE OKLAHOMA CRIMINAL COURT OF APPEALS IN THE PRESENT
CASE DECIDED THAT THE EVIDENCE WOULD JUSTIFY A DETERMINATION THAT THE
EFFECT OF A PRIOR COERCION WAS DISSIPATED BEFORE THE SECOND CONFESSION
AND WE AGREE.    PETITIONER SUGGESTS A PRESUMPTION THAT EARLIER ABUSES
RENDER SUBSEQUENT CONFESSIONS INVOLUNTARY UNLESS THERE IS CLEAR AND
DEFINITE EVIDENCE TO OVERCOME THE PRESUMPTION.  WE NEED NOT ANALYZE
THIS CONTENTION FURTHER THAN TO SAY THAT IN THIS CASE THERE IS EVIDENCE
FOR THE STATE WHICH, IF BELIEVED, WOULD MAKE IT ABUNDANTLY CLEAR THAT
THE EVENTS AT HUGO DID NOT BRING ABOUT THE CONFESSION AT MCALESTER. 

IN OUR VIEW, THE EARLIER EVENTS AT HUGO DO NOT LEAD UNESCAPABLY TO
THE CONCLUSION THAT THE LATER MCALESTER CONFESSION WAS BROUGHT ABOUT BY
THE EARLIER MISTREATMENTS.  THE MCALESTER CONFESSION WAS SEPARATED FROM
THE EARLY MORNING STATEMENT BY A FULL TWELVE HOURS.  IT FOLLOWED THE
PRISONER'S TRANSFER FROM THE CONTROL OF THE SHERIFF'S FORCE TO THAT OF
THE WARDEN.  ONE PERSON WHO HAD BEEN PRESENT DURING A PART OF THE TIME
WHILE THE HUGO INTERROGATION WAS IN PROGRESS WAS PRESENT AT MCALESTER,
IT IS TRUE, BUT HE WAS NOT AMONG THOSE CHARGED WITH ABUSING LYONS
DURING THE QUESTIONING AT HUGO.  THERE WAS EVIDENCE FROM OTHERS PRESENT
THAT LYONS READILY CONFESSED WITHOUT ANY SHOW OF FORCE OR THREATS
WITHIN A VERY SHORT TIME OF HIS SURRENDER TO WARDEN DUNN AND AFTER
BEING WARNED BY DUNN THAT ANYTHING HE MIGHT SAY WOULD BE USED AGAINST
HIM AND THAT HE SHOULD NOT "MAKE A STATEMENT UNLESS HE VOLUNTARILY
WANTED TO."  LYONS, AS A FORMER INMATE OF THE INSTITUTION, WAS
ACQUAINTED WITH THE WARDEN.  THE PETITIONER TESTIFIED TO NOTHING IN THE
PAST THAT WOULD INDICATE ANY REASON FOR HIM TO FEAR MISTREATMENT
THERE.  THE FACT THAT LYONS, A FEW DAYS LATER, FRANKLY ADMITTED THE
KILLINGS TO A SERGEANT OF THE PRISON GUARD, A FORMER ACQUAINTANCE FROM
HIS OWN LOCALITY, UNDER CIRCUMSTANCES FREE OF COERCION SUGGESTS
STRONGLY THAT THE PETITIONER HAD CONCLUDED THAT IT WAS WISE TO MAKE A
CLEAN BREAST OF HIS GUILT AND THAT HIS CONFESSION TO DUNN WAS
VOLUNTARY.  THE ANSWERS TO THE WARDEN'S QUESTIONS, AS TRANSCRIBED BY A
PRISON STENOGRAPHER, CONTAIN STATEMENTS CORRECTING AND SUPPLEMENTING
THE QUESTIONER'S INFORMATION AND DO NOT APPEAR TO BE MERE SUPINE
ATTEMPTS TO GIVE THE DESIRED RESPONSE TO LEADING QUESTIONS. 

THE FOURTEENTH AMENDMENT IS A PROTECTION AGAINST CRIMINAL TRIALS IN
STATE COURTS CONDUCTED IN SUCH A MANNER AS AMOUNTS TO A DISREGARD OF
"THAT FUNDAMENTAL FAIRNESS ESSENTIAL TO THE VERY CONCEPT OF JUSTICE,"
AND IN A WAY THAT "NECESSARILY PREVENTS A FAIR TRIAL."  LISENBA V.
CALIFORNIA, 314 U.S. 219, 236.  A COERCED CONFESSION IS OFFENSIVE TO
BASIC STANDARDS OF JUSTICE, NOT BECAUSE THE VICTIM HAS A LEGAL
GRIEVANCE AGAINST THE POLICE, BUT BECAUSE DECLARATIONS PROCURED BY
TORTURE ARE NOT PREMISES FROM WHICH A CIVILIZED FORUM WILL INFER
GUILT.  THE FOURTEENTH AMENDMENT DOES NOT PROVIDE REVIEW OF MERE ERROR
IN JURY VERDICTS, EVEN THOUGH THE ERROR CONCERNS THE VOLUNTARY
CHARACTER OF A CONFESSION.  WE CANNOT SAY THAT AN INFERENCE OF GUILT
BASED IN PART UPON LYONS' MCALESTER CONFESSION IS SO ILLOGICAL AND
UNREASONABLE AS TO DENY THE PETITIONER A FAIR TRIAL.  AFFIRMED. 

FN1  WHETHER OR NOT THE OTHER EVIDENCE IN THE RECORD IS SUFFICIENT TO
JUSTIFY THE GENERAL VERDICT OF GUILTY IS NOT NECESSARY TO CONSIDER. 
THE CONFESSION WAS INTRODUCED OVER DEFENDANT'S OBJECTION.  IF SUCH
ADMISSION OF THIS CONFESSION DENIED A CONSTITUTIONAL RIGHT TO DEFENDANT
THE ERROR REQUIRES REVERSAL.  BRAM V. UNITED STATES, 168 U.S. 532, 540
42.  CF. STROMBERG V. CALIFORNIA, 283 U.S. 359, 367, 368; WILLIAMS V.
NORTH CAROLINA, 317 U.S. 287, 291, 292. 

FN2  IN PETITIONER'S BRIEF A CLAIM IS MADE THAT OKLAHOMA DENIED TO
HIM THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH
AMENDMENT.  APPARENTLY PETITIONER RELIES UPON HIS UNDUE DETENTION
WITHOUT PRELIMINARY EXAMINATION, WHICH WAS IN VIOLATION OF THE STATE
CRIMINAL PROCEDURE, AS A DENIAL BY OKLAHOMA OF EQUAL PROTECTION OF THE
LAW.  BUT THE EFFECT OF THE MERE DENIAL OF A PROMPT EXAMINING TRIAL IS
A MATTER OF STATE, NOT OF FEDERAL, LAW.  TO REFUSE THIS IS NOT A DENIAL
OF EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT ALTHOUGH IT IS A
FACT FOR CONSIDERATION ON AN ALLEGATION THAT A CONFESSION USED AT THE
TRIAL WAS COERCED.  CF. MCNABB V. UNITED STATES, 318 U.S. 332, 340;
UNITED STATES V. MITCHELL, 322 U.S. 65. 

MR. JUSTICE DOUGLAS CONCURS IN THE RESULT. 

MR. JUSTICE RUTLEDGE DISSENTS. 

MR. JUSTICE MURPHY, DISSENTING: 

THIS FLAGRANT ABUSE BY A STATE OF THE RIGHTS OF AN AMERICAN CITIZEN
ACCUSED OF MURDER OUGHT NOT TO BE APPROVED.  THE FIFTH AMENDMENT
PROHIBITS THE FEDERAL GOVERNMENT FROM CONVICTING A DEFENDANT ON
EVIDENCE THAT HE WAS COMPELLED TO GIVE AGAINST HIMSELF.  BRAM V. UNITED
STATES, 168 U.S. 532.  DECISIONS OF THIS COURT IN EFFECT HAVE HELD THAT
THE FOURTEENTH AMENDMENT MAKES THIS PROHIBITION APPLICABLE TO THE
STATES.  CHAMBERS V. FLORIDA, 309 U.S. 227; CANTY V. ALABAMA, 309 U.S.
629; LISENBA V. CALIFORNIA, 314 U.S. 219; ASHCRAFT V. TENNESSEE, 322
U.S. 143.  CF. GREEN, "LIBERTY UNDER THE FOURTEENTH AMENDMENT," 27
WASH. UNIV.  L.Q. 497, 533.  IT IS OUR DUTY TO APPLY THAT
CONSTITUTIONAL PROHIBITION IN THIS CASE. 

EVEN THOUGH APPROXIMATELY TWELVE HOURS INTERVENED BETWEEN THE TWO
CONFESSIONS AND EVEN ASSUMING THAT THERE WAS NO VIOLENCE SURROUNDING
THE SECOND CONFESSION, IT IS INCONCEIVABLE UNDER THESE CIRCUMSTANCES
THAT THE SECOND CONFESSION WAS FREE FROM THE COERCIVE ATMOSPHERE THAT
ADMITTEDLY IMPREGNATED THE FIRST ONE.  THE WHOLE CONFESSION TECHNIQUE
USED HERE CONSTITUTED ONE SINGLE, CONTINUING TRANSACTION.  TO CONCLUDE
THAT THE BRUTALITY INFLICTED AT THE TIME OF THE FIRST CONFESSION
SUDDENLY LOST ALL OF ITS EFFECT IN THE SHORT SPACE OF TWELVE HOURS IS
TO CLOSE ONE'S EYES TO THE REALITIES OF HUMAN NATURE.  AN INDIVIDUAL
DOES NOT THAT EASILY FORGET THE TYPE OF TORTURE THAT ACCOMPANIED
PETITIONER'S PREVIOUS REFUSAL TO CONFESS, NOR DOES A PERSON LIKE
PETITIONER SO QUICKLY RECOVER FROM THE GRUESOME EFFECTS OF HAVING HAD A
PAN OF HUMAN BONES PLACED ON HIS KNEES IN ORDER TO FORCE INCRIMINATING
TESTIMONY FROM HIM.  CF. STATE V. ELLIS, 294 MO. 269; FISHER V. STATE,
145 MISS.  116, 110 SO. 361; REASON V. STATE, 94 MISS.  290, 48 SO.
820; WHITLEY V. STATE, 78 MISS.  255; STATE V. WOOD, 122 LA. 1014, 48
SO. 438.  MOREOVER, THE TRIAL JUDGE REFUSED PETITIONER'S REQUEST THAT
THE JURY BE CHARGED THAT THE SECOND CONFESSION WAS NOT FREE AND
VOLUNTARY IF IT WAS OBTAINED WHILE PETITIONER WAS STILL SUFFERING FROM
THE INHUMAN TREATMENT HE HAD PREVIOUSLY RECEIVED.  THUS IT CANNOT BE
SAID THAT WE ARE CONFRONTED WITH A FINDING BY THE TRIER OF FACTS THAT
THE COERCIVE EFFECT OF THE PRIOR BRUTALITY HAD COMPLETELY WORN OFF BY
THE TIME THE SECOND CONFESSION WAS SIGNED. 

PRESUMABLY, THEREFORE, THIS DECISION MEANS THAT STATE OFFICERS ARE
FREE TO FORCE A CONFESSION FROM AN INDIVIDUAL BY RUTHLESS METHODS,
KNOWING FULL WELL THAT THEY DARE NOT USE SUCH A CONFESSION AT THE
TRIAL, AND THEN, AS A PART OF THE SAME CONTINUING TRANSACTION AND
BEFORE THE EFFECTS OF THE COERCION CAN FAIRLY BE SAID TO HAVE
COMPLETELY WORN OFF, PROCURE ANOTHER CONFESSION WITHOUT ANY IMMEDIATE
VIOLENCE BEING INFLICTED.  THE ADMISSION OF SUCH A TAINTED CONFESSION
DOES NOT ACCORD WITH THE FOURTEENTH AMENDMENT'S COMMAND THAT A STATE
SHALL NOT CONVICT A DEFENDANT ON EVIDENCE THAT HE WAS COMPELLED TO GIVE
AGAINST HIMSELF.  CHAMBERS V. FLORIDA, SUPRA; CANTY V. ALABAMA, SUPRA;
LISENBA V. CALIFORNIA, SUPRA; ASHCRAFT V. TENNESSEE, SUPRA. 

MR. JUSTICE BLACK CONCURS IN THIS OPINION. 
..END :











ADDISON V. HOLLY HILL CO., 322 U.S. 607 


NO. 217.  ARGUED JANUARY 10, 1944.  - DECIDED JUNE 5, 1944.  - 136 F.2D
323, REMANDED. 


1.  SECTION 13(A)(10) OF THE FAIR LABOR STANDARDS ACT EXEMPTS FROM THE
MINIMUM WAGE AND OVERTIME REQUIREMENTS OF THE ACT PERSONS EMPLOYED,
"WITHIN THE AREA OF PRODUCTION (AS DEFINED BY THE ADMINISTRATOR)," IN
CANNING AGRICULTURAL COMMODITIES FOR MARKET.  THE ADMINISTRATOR'S
DEFINITION OF "AREA OF PRODUCTION" BROUGHT WITHIN THE EXEMPTION
EMPLOYEES OF CANNERIES WHICH OBTAINED "ALL" OF THEIR FARM PRODUCTS FROM
WITHIN TEN MILES AND HAD NOT MORE THAN SEVEN EMPLOYEES.  HELD: 

(1)  JUDICIAL CONSTRUCTION OF "ALL" IN THE ADMINISTRATOR'S DEFINITION
AS MEANING "SUBSTANTIALLY ALL" WAS NOT PERMISSIBLE.  P. 610. 

(2)  THE ADMINISTRATOR'S DISCRIMINATION BETWEEN CANNERIES HAVING
SEVEN OR LESS EMPLOYEES AND THOSE HAVING MORE WAS UNAUTHORIZED AND
INVALID.  PP. 611, 618. 

2.  A JUDGMENT OF THE DISTRICT COURT ALLOWING RECOVERY UNDER THE
MINIMUM WAGE AND OVERTIME PROVISIONS OF THE ACT HAVING BEEN REVERSED BY
THE CIRCUIT COURT OF APPEALS ON THE GROUND THAT THE ADMINISTRATOR'S
DISCRIMINATION BASED ON NUMBER OF EMPLOYEES WAS INVALID AND THAT THE
CANNERY IN QUESTION WAS EXEMPT UNDER THE REMAINDER OF THE
ADMINISTRATOR'S DEFINITION, THE CAUSE ON REVIEW HERE IS REMANDED TO THE
DISTRICT COURT WITH DIRECTIONS TO RETAIN JURISDICTION UNTIL THE
ADMINISTRATOR, BY MAKING WITH REASONABLE PROMPTNESS A VALID DEFINITION,
ACTS WITHIN THE AUTHORITY GRANTED HIM BY CONGRESS.  P. 619. 

ADDISON ET AL. V. HOLLY HILL FRUIT PRODUCTS, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 320 U.S. 725, TO REVIEW THE REVERSAL OF A JUDGMENT FOR THE
COMPLAINANTS IN A SUIT TO RECOVER MINIMUM WAGES, OVERTIME COMPENSATION,
AND LIQUIDATED DAMAGES UNDER THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT BY EMPLOYEES OF HOLLY HILL FRUIT PRODUCTS,
INC. FOR WAGE PAYMENTS UNDER THE FAIR LABOR STANDARDS ACT.  52 STAT.
1060, 29 U.S.C. SECS. 201 ET SEQ. A JUDGMENT FOR THE EMPLOYEES, THE
PETITIONERS HERE, WAS REVERSED BY THE CIRCUIT COURT OF APPEALS, WHICH
HELD THAT HOLLY HILL'S EMPLOYEES WERE BY VIRTUE OF SEC. 13(A)(10) OF
THE ACT EXEMPTED FROM ITS SCOPE, IN THAT THEY WERE "WITHIN THE AREA OF
PRODUCTION (AS DEFINED BY THE ADMINISTRATOR), ENGAGED IN  ... CANNING
OF AGRICULTURAL  ...  COMMODITIES FOR MARKET  ...  "  THE COURT BELOW
REACHED THIS CONCLUSION BY HOLDING THAT A PORTION OF THE DEFINITION OF
"AREA OF PRODUCTION" MADE BY THE ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION WAS INVALID AND THAT THE REMAINING PORTION AFFORDED
EXEMPTION.  136 F.2D 323.  WE BROUGHT THE CASE HERE, 320 U.S. 725, TO
SETTLE A MUCH LITIGATED QUESTION OF IMPORTANCE IN THE ADMINISTRATION OF
THE FAIR LABOR STANDARDS ACT. 

HOLLY HILL, A CITRUS FRUIT CANNERY EMPLOYING SOME TWO HUNDRED
WORKERS, IS LOCATED IN DAVENPORT, FLORIDA, A TOWN WITH A POPULATION OF
ABOUT 650 PEOPLE.  DURING THE TWO SEASONS IN CONTROVERSY - NOVEMBER 14,
1938 TO MAY 26, 1939, AND NOVEMBER 16, 1939 TO MARCH 30, 1940 - THE
ADMINISTRATOR PROMULGATED THREE REGULATIONS BASED ON THE SCOPE HE GAVE
TO HIS AUTHORITY UNDER SEC. 13(A)(10) TO DEFINE "AREA OF PRODUCTION." 
THE VALIDITY OF ASPECTS OF THESE REGULATIONS IS THE CRUCIAL ISSUE. 

BY REGULATION OF OCTOBER 20, 1938, THE ADMINISTRATOR DEFINED "AREA OF
PRODUCTION" AS USED IN SEC. 13(A)(10) TO INCLUDE AN INDIVIDUAL ENGAGED
IN CANNING "IF THE AGRICULTURAL OR HORTICULTURAL COMMODITIES ARE
OBTAINED BY THE ESTABLISHMENT WHERE HE IS EMPLOYED FROM FARMS IN THE
IMMEDIATE LOCALITY AND THE NUMBER OF EMPLOYEES IN SUCH ESTABLISHMENT
DOES NOT EXCEED SEVEN."  29 CODE FED. REG. (SUPP. 1938) SEC. 536.2(B). 
EFFECTIVE APRIL 20, 1939, AN ALTERNATIVE DEFINITION, APPLICABLE TO
PERISHABLE OR SEASONAL FRESH FRUITS AND VEGETABLES, BROUGHT WORKERS
INTO THE "AREA OF PRODUCTION" IF EMPLOYED "IN AN ESTABLISHMENT WHICH IS
LOCATED IN THE OPEN COUNTRY OR IN A RURAL COMMUNITY AND WHICH OBTAINS
ALL OF ITS PRODUCTS FROM FARMS IN ITS IMMEDIATE LOCALITY."  IT WAS
PROVIDED THAT "'OPEN COUNTRY' OR 'RURAL COMMUNITY' SHALL NOT INCLUDE
ANY CITY OR TOWN OF 2,500 OR GREATER POPULATION ACCORDING TO THE 15TH
UNITED STATES CENSUS, 1930, AND 'IMMEDIATE LOCALITY' SHALL NOT INCLUDE
ANY DISTANCE OF MORE THAN TEN MILES."  29 CODE FED. REG. (SUPP. 1939)
SEC. 536.2(E), PP. 2239-40.  FINALLY, THIS ALTERNATIVE DEFINITION, NO
LONGER LIMITED TO FRUITS AND VEGETABLES, WAS IN SUBSTANCE INCORPORATED
INTO THE REGULATIONS EFFECTIVE JUNE 17, 1939, BUT IN ADDITION IT WAS
PROVIDED THAT AN INDIVIDUAL MIGHT ALSO BE WITHIN THE "AREA OF
PRODUCTION" "IF HE PERFORMS THOSE (CANNING) OPERATIONS ON MATERIALS ALL
OF WHICH COME FROM FARMS IN THE GENERAL VICINITY OF THE ESTABLISHMENT
WHERE HE IS EMPLOYED AND THE NUMBER OF EMPLOYEES ENGAGED IN THOSE
OPERATIONS IN THAT ESTABLISHMENT DOES NOT EXCEED SEVEN."  29 CODE FED.
REG. (SUPP. 1939) SEC. 536.2(A)(D), P. 2240. 

BEFORE COMING TO THE MAIN QUESTION, THAT OF THE VALIDITY OF ADDING A
LIMITATION ON THE ALLOWABLE NUMBER OF EMPLOYEES IN ONE CANNING
ESTABLISHMENT WITHIN THE EXEMPTED GEOGRAPHIC BOUNDS, WE SHALL DISPOSE
OF THE APPLICABILITY OF THE ADMINISTRATOR'S OTHER EXEMPTING DEFINITIONS
TO HOLLY HILL'S EMPLOYEES. 

THE DEFINITIONS WHICH CONTAIN NO EMPLOYEE LIMITATION IMPOSE TWO
ESSENTIAL CONDITIONS ON AN EXEMPTION SOUGHT UNDER SEC. 13(A)(10):  THE
ESTABLISHMENT MUST BE LOCATED IN A CITY OR TOWN HAVING A POPULATION
SMALLER THAN 2,500,  FN1  AND ALL OF ITS PRODUCTS MUST BE OBTAINED FROM
WITHIN TEN MILES OF THE ESTABLISHMENT.  SINCE DAVENPORT CONTAINS LESS
THAN 2,500 PERSONS, THE FIRST CONDITION IS MET AND WE NEED NOT PASS ON
ITS VALIDITY.  FN2  AS TO THE SECOND CONDITION, THE ONLY EVIDENCE
INTRODUCED INDICATES THAT DURING THE 1938-1939 SEASON, ABOUT 2% OF THE
FRUIT USED CAME FROM BEYOND TEN AIR MILES OF THE PLANT, AND THAT FOR
THE 1939-1940 SEASON, ABOUT 3.75% CAME FROM GROVES MORE THAN TEN AIR
MILES FROM HOLLY HILL.  SINCE ALL OF THE FRUIT DID NOT COME FROM WITHIN
TEN MILES, HOLLY HILL DID NOT SATISFY THIS CONDITION OF THE
ADMINISTRATOR'S DEFINITIONS.  THERE CAN BE NO DOUBT THAT THIS
CONCLUSION IS JUSTIFIED BY A LITERAL READING OF THE REGULATIONS, AND
THE COURT BELOW, IN HOLDING THAT THE ADMINISTRATOR'S REQUIREMENT THAT
ALL THE GOODS COME FROM WITHIN TEN MILES MUST BE CONSTRUED TO MEAN
"SUBSTANTIALLY ALL," ENTERED THE ADMINISTRATOR'S DOMAIN.  WHAT WAS SAID
IN ANOTHER CONNECTION IS RELEVANT HERE.  "LOOKED AT BY ITSELF WITHOUT
REGARD TO THE NECESSITY BEHIND IT THE LINE OR POINT SEEMS ARBITRARY. 
IT MIGHT AS WELL OR NEARLY AS WELL BE A LITTLE MORE TO ONE SIDE OR THE
OTHER.  BUT WHEN IT IS SEEN THAT A LINE OR POINT THERE MUST BE, AND
THAT THERE IS NO MATHEMATICAL OR LOGICAL WAY OF FIXING IT PRECISELY,
THE DECISION OF THE (ADMINISTRATOR) MUST BE ACCEPTED UNLESS WE CAN SAY
THAT IT IS VERY WIDE OF ANY REASONABLE MARK."  MR. JUSTICE HOLMES,
DISSENTING, IN LOUISVILLE GAS CO. V. COLEMAN, 277 U.S. 32, 41.  FN3 

WE COME THEN TO THE VALIDITY OF THE OCTOBER 20, 1938, REGULATION AND
THAT OF THE ALTERNATIVE IN THE JUNE 17, 1939, REGULATION WHICH PROVIDE
IN SUBSTANCE THAT AN INDIVIDUAL IS EMPLOYED WITHIN THE "AREA OF
PRODUCTION" IF AN ESTABLISHMENT OBTAINS THE COMMODITIES FROM THE
"IMMEDIATE LOCALITY" (1938) OR ALL THE MATERIALS COME FROM THE "GENERAL
VICINITY" (1939), AND IN ADDITION THE NUMBER OF EMPLOYEES IN THE
ESTABLISHMENT "DOES NOT EXCEED SEVEN."  IN SHORT, WHEN CONGRESS
EXEMPTED "ANY INDIVIDUAL EMPLOYED WITHIN THE AREA OF PRODUCTION (AS
DEFINED BY THE ADMINISTRATOR)" (SEC. 13(A)(10)), DID IT AUTHORIZE THE
ADMINISTRATOR NOT ONLY TO DESIGNATE TERRITORIAL BOUNDS FOR THE PURPOSES
OF EXEMPTION BUT ALSO TO EXCEPT ESTABLISHMENTS FROM SUCH EXEMPTION
ACCORDING TO THE NUMBER OF WORKERS EMPLOYED. 

CONGRESS PROVIDED FOR ELEVEN EXEMPTIONS FROM THE CONTROLLING
PROVISIONS RELATING TO MINIMUM WAGES OR MAXIMUM HOURS OF THE FAIR LABOR
STANDARDS ACT.  FN4  EMPLOYMENT IN AGRICULTURE IS PROBABLY THE MOST FAR
REACHING EXEMPTION.  CLOSELY RELATED TO IT IS THE EXEMPTION WHICH IS
OUR IMMEDIATE CONCERN - THOSE WORKERS ENGAGED IN PROCESSES NECESSARY
FOR THE MARKETING OF AGRICULTURAL PRODUCTS AND EMPLOYED "WITHIN THE
AREA OF PRODUCTION" OF SUCH COMMODITIES.  SUCH WAS THE PHRASE AND SUCH
ITS CONJUNCTION WITH THE EXEMPTION FOR AGRICULTURE OF WHICH IT FORMED
AN INTEGRAL PART AS THE BILL PASSED BOTH HOUSES, EXCEPT THAT THE
ENUMERATED EXEMPTED EMPLOYMENTS SUBSIDIARY TO AGRICULTURE VARIED IN THE
TWO BILLS.  FN5  THE PARENTHETICAL QUALIFICATION "(AS DEFINED BY THE
ADMINISTRATOR)" EMERGED FROM THE CONFERENCE COMMITTEE OF THE TWO
HOUSES.  FN6 

THE TEXTUAL MEANING OF "AREA OF PRODUCTION" IS THUS REINFORCED BY ITS
CONTEXT:  "AREA" CALLS FOR DELIMITATION OF TERRITORY IN RELATION TO THE
COMPLICATED ECONOMIC FACTORS THAT OPERATE BETWEEN AGRICULTURAL LABOR
CONDITIONS AND THE LABOR MARKET OF ENTERPRISES CONCERNED WITH
AGRICULTURAL COMMODITIES AND MORE OR LESS NEAR THEIR PRODUCTION.  THE
PHRASE IS THE MOST APT DESIGNATION OF A ZONE WITHIN WHICH ECONOMIC
INFLUENCES MAY BE DEEMED TO OPERATE AND OUTSIDE OF WHICH THEY LOSE
THEIR FORCE.  IN VIEW, HOWEVER, OF THE VARIETY OF AGRICULTURAL
CONDITIONS AND INDUSTRIES THROUGHOUT THE COUNTRY, THE BOUNDS OF THESE
AREAS COULD NOT BE DEFINED BY CONGRESS ITSELF.  NEITHER WAS IT DEEMED
WISE TO LEAVE SUCH ECONOMIC DETERMINATION TO THE CONTINGENCIES AND
INEVITABLE DIVERSITIES OF LITIGATION.  AND SO CONGRESS LEFT THE
BOUNDARY-MAKING TO THE EXPERIENCED AND INFORMED JUDGMENT OF THE
ADMINISTRATOR.  THEREBY CONGRESS GAVE THE ADMINISTRATOR APPROPRIATE
DISCRETION TO ASSESS ALL THE FACTORS RELEVANT TO THE SUBJECT MATTER,
THAT IS, THE FIXING OF MINIMUM WAGES AND MAXIMUM HOURS. 

IN DELIMITING THE AREA THE ADMINISTRATOR MAY PROPERLY WEIGH AND
SYNTHESIZE ALL SUCH FACTORS.  SO LONG AS HE DOES THAT AND NO MORE,
JUDGMENT BELONGS TO HIM AND NOT TO THE COURTS.  FOR CONGRESS HAS CAST
UPON HIM THE AUTHORITY AND THE DUTY TO DEFINE THE "AREA OF PRODUCTION"
OF AGRICULTURAL COMMODITIES WITH REFERENCE TO WHICH EXEMPTION IN
SUBSIDIARY EMPLOYMENTS MAY OPERATE.  BUT IF CONGRESS INTENDED TO ALLOW
THE ADMINISTRATOR TO DISCRIMINATE BETWEEN SMALLER AND BIGGER
ESTABLISHMENTS WITHIN THE ZONE OF AGRICULTURAL PRODUCTION, CONGRESS
WHOLLY FAILED TO EXPRESS ITS PURPOSE.  WHERE CONGRESS WANTED TO MAKE
EXEMPTION DEPEND ON SIZE, AS IT DID IN TWO OR THREE INSTANCES NOT HERE
RELEVANT, IT DID SO BY APPROPRIATE LANGUAGE.  FN7  CONGRESS REFERRED TO
QUANTITY WHEN IT DESIRED TO LEGISLATE ON THE BASIS OF QUANTITY. 

CONGRESSIONAL PURPOSE AS MANIFESTED BY TEXT AND CONTEXT IS NOT
RENDERED DOUBTFUL BY LEGISLATIVE HISTORY.  MEAGRE AS THAT IS, IT
CONFIRMS WHAT CONGRESS HAS FORMALLY SAID.  THE ONLY EXTRINSIC LIGHT
CAST ON CONGRESSIONAL PURPOSE REGARDING "AREA OF PRODUCTION" IS THAT
CAST BY THE SPONSORS OF THIS PROVISION FOR ENLARGING THE RANGE OF
AGRICULTURAL EXEMPTIONS.  SENATOR SCHWELLENBACH FRANKLY STATED THAT THE
LARGEST APPLE PACKING PLANT IN THE WORLD WOULD BE EXEMPT IF THE "WORK
DONE IN THAT PLANT IS AS DESCRIBED IN THE AMENDMENT."  81 CONG. REC.
7877.  AND IN THE HOUSE, REPRESENTATIVE BIERMANN, WHILE EXPLAINING HIS
AMENDMENT IN SOMEWHAT DELPHIC TERMS, DID INDICATE PLAINLY ENOUGH THAT
HE HAD IN MIND NOT DIFFERENCES BETWEEN ESTABLISHMENTS WITHIN THE SAME
TERRITORY BUT BETWEEN RURAL COMMUNITIES AND URBAN CENTERS:  "MAY I SAY
THAT ALL OVER THIS COUNTRY IT HAS BEEN RECOGNIZED THAT THERE SHOULD BE
A LABOR DIFFERENTIAL BETWEEN THE LARGE CITY AND THE LITTLE TOWN."  83
CONG. REC. 7401.  FN8 

FROM SUCH LIGHT AS CONGRESS GAVE US BEYOND ITS WORDS, IT WOULD APPEAR
THAT IN GIVING EXEMPTION TO AN "AREA OF PRODUCTION," WITHOUT
DIFFERENTIATING AS BETWEEN ESTABLISHMENTS WITHIN SUCH AREA, CONGRESS
MIGHT WELL HAVE CONSIDERED THAT A LARGE PLANT WITHIN AN AREA SHOULD NOT
BE GIVEN AN ADVANTAGE OVER SMALL PLANTS IN COMPETING FOR LABOR WITHIN
THE SAME LOCALITY, WHILE AT THE SAME TIME IT GAVE THE ADMINISTRATOR
AMPLE POWER, IN DEFINING THE AREA, TO TAKE DUE ACCOUNT OF THE
APPROPRIATE ECONOMIC FACTORS IN DRAWING THE GEOGRAPHIC LINES.  IN ANY
EVENT, CONGRESS DID NOT LEAVE IT TO THE ADMINISTRATOR TO DECIDE WHETHER
WITHIN GEOGRAPHIC BOUNDS DEFINED BY HIM THE ACT FURTHER PERMITS
DISCRIMINATION BETWEEN ESTABLISHMENT AND ESTABLISHMENT BASED UPON THE
NUMBER OF EMPLOYEES.  THE DETERMINATION OF THE EXTENT OF AUTHORITY
GIVEN TO A DELEGATED AGENCY BY CONGRESS IS NOT LEFT FOR THE DECISION OF
HIM IN WHOM AUTHORITY IS VESTED. 

THE WIDER A DELEGATION IS MADE BY CONGRESS TO AN ADMINISTRATIVE
AGENCY THE MORE INCOMPLETE IS A STATUTE AND THE AMPLER THE SCOPE FOR
FILLING IN, AS IT IS CALLED, ITS DETAILS.  BUT WHEN CONGRESS WANTS TO
GIVE WIDE DISCRETION IT USES BROAD LANGUAGE.  THUS, IN THE INTERSTATE
COMMERCE ACT, CONGRESS PROHIBITED A LOWER RATE FOR A LONGER THAN A
SHORTER HAUL, BUT IT GAVE AN AUTHORITY TO THE INTERSTATE COMMERCE
COMMISSION, UNDEFINED EXCEPT AS THE GENERAL PURPOSES OF THAT ACT
IMPLIED THE BASIS FOR AFFORDING EXEMPTION, TO GRANT RELIEF FROM THIS
PROHIBITION.  INTERMOUNTAIN RATE CASES, 234 U.S. 476.  AGAIN IN THE
NATIONAL LABOR RELATIONS ACT, CONGRESS GAVE THE BOARD AUTHORITY TO TAKE
SUCH ACTION "AS WILL EFFECTUATE THE POLICIES OF THIS ACT."  SEC. 10(C),
49 STAT. 449, 454, 29 U.S.C. SEC. 160(C).  THE "POLICIES" OF THE ACT
WERE SO BROADLY DEFINED BY CONGRESS THAT THE DETERMINATION OF "THE
RELATION OF REMEDY TO POLICY IS PECULIARLY A MATTER FOR ADMINISTRATIVE
COMPETENCE."  PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194.  IN
THE FAIR LABOR STANDARDS ACT, CONGRESS LEGISLATED VERY DIFFERENTLY IN
RELATION TO THE PROBLEM BEFORE US.  TO BE SURE, THE FAIR LABOR
STANDARDS ACT, LIKE THE NATIONAL LABOR RELATIONS ACT, WAS BASED ON
FINDINGS AND A DECLARATION OF BROAD POLICY.  BUT CONGRESS DID NOT
PRESCRIBE OR PROSCRIBE GENERALLY AND THEN GIVE BROAD DISCRETION FOR
ADMINISTRATIVE RELIEF AS IN THE INTERSTATE COMMERCE ACT OR FOR REMEDIES
AS IN THE NATIONAL LABOR RELATIONS ACT.  CONGRESS DID OTHERWISE.  IT
DEALT WITH EXEMPTIONS IN DETAIL AND WITH PARTICULARITY, ENUMERATING NOT
LESS THAN ELEVEN EXEMPTED CLASSES BASED ON DIFFERENT INDUSTRIES, ON
DIFFERENT OCCUPATIONS WITHIN THE SAME INDUSTRY (THE CLASSIFICATION IN
SOME INSTANCES TO BE DEFINED BY THE ADMINISTRATOR, IN SOME MADE BY
CONGRESS ITSELF, IN OTHERS SUBJECT TO DEFINITION BY OTHER LEGISLATION),
ON SIZE AND ON AREAS.  IN SHORT THE ADMINISTRATOR WAS NOT LEFT AT
LARGE.  A NEW NATIONAL POLICY WAS HERE FORMULATED WITH EXCEPTIONS,
CATALOGUED WITH PARTICULARITY AND NOT LEFT WITHIN THE BROAD DISPENSING
POWER OF THE ADMINISTRATOR.  EXEMPTIONS MADE IN SUCH DETAIL PRECLUDE
THEIR ENLARGEMENT BY IMPLICATION.    WE SHOULD OF COURSE BE FAITHFUL TO
THE MEANING OF A STATUTE.  BUT AFTER ALL CONGRESS EXPRESSES ITS MEANING
BY WORDS.  IF LEGISLATIVE POLICY IS COUCHED IN VAGUE LANGUAGE, EASILY
SUSCEPTIBLE OF ONE MEANING AS WELL AS ANOTHER IN THE COMMON SPEECH OF
MEN, WE SHOULD NOT STIFLE A POLICY BY A PEDANTIC OR GRUDGING PROCESS OF
CONSTRUCTION.  TO LET GENERAL WORDS DRAW NOURISHMENT FROM THEIR PURPOSE
IS ONE THING.  TO DRAW ON SOME UNEXPRESSED SPIRIT OUTSIDE THE BOUNDS OF
THE NORMAL MEANING OF WORDS IS QUITE ANOTHER.  FOR WE ARE HERE NOT
DEALING WITH THE BROAD TERMS OF THE CONSTITUTION "AS A CONTINUING
INSTRUMENT OF GOVERNMENT" BUT WITH PART OF A LEGISLATIVE CODE "SUBJECT
TO CONTINUOUS REVISION WITH THE CHANGING COURSE OF EVENTS."  UNITED
STATES V. CLASSIC, 313 U.S. 299, 316. 

LEGISLATION INTRODUCING A NEW SYSTEM IS AT BEST EMPIRICAL, AND NOT
INFREQUENTLY ADMINISTRATION REVEALS GAPS OR INADEQUACIES OF ONE SORT OR
ANOTHER THAT MAY CALL FOR AMENDATORY LEGISLATION.  BUT IT IS NO WARRANT
FOR EXTENDING A STATUTE THAT EXPERIENCE MAY DISCLOSE THAT IT SHOULD
HAVE BEEN MADE MORE COMPREHENSIVE.  "THE NATURAL MEANING OF WORDS
CANNOT BE DISPLACED BY REFERENCE TO DIFFICULTIES IN ADMINISTRATION." 
COMMONWEALTH V. GRUNSEIT (1943) 67 C.L.R. 58, 80.  FOR THE ULTIMATE
QUESTION IS WHAT HAS CONGRESS COMMANDED, WHEN IT HAS GIVEN NO CLUE TO
ITS INTENTIONS EXCEPT FAMILIAR ENGLISH WORDS AND NO HINT BY THE
DRAFTSMEN OF THE WORDS THAT THEY MEANT TO USE THEM IN ANY BUT AN
ORDINARY SENSE.  THE IDEA WHICH IS NOW SOUGHT TO BE READ INTO THE GRANT
BY CONGRESS TO THE ADMINISTRATOR TO DEFINE "THE AREA OF PRODUCTION"
BEYOND THE PLAIN GEOGRAPHIC IMPLICATIONS OF THAT PHRASE IS NOT SO
COMPLICATED NOR IS ENGLISH SPEECH SO POOR THAT WORDS WERE NOT EASILY
AVAILABLE TO EXPRESS THE IDEA OR AT LEAST TO SUGGEST IT.  AFTER ALL,
LEGISLATION WHEN NOT EXPRESSED IN TECHNICAL TERMS IS ADDRESSED TO THE
COMMON RUN OF MEN AND IS THEREFORE TO BE UNDERSTOOD ACCORDING TO THE
SENSE OF THE THING, AS THE ORDINARY MAN HAS A RIGHT TO RELY ON ORDINARY
WORDS ADDRESSED TO HIM. 

THE DETAILS WITH WHICH THE EXEMPTIONS IN THIS ACT HAVE BEEN MADE
PRECLUDE THEIR ENLARGEMENT BY IMPLICATION.  WHILE THE JUDICIAL FUNCTION
IN CONSTRUING LEGISLATION IS NOT A MECHANICAL PROCESS FROM WHICH
JUDGMENT IS EXCLUDED, IT IS NEVERTHELESS VERY DIFFERENT FROM THE
LEGISLATIVE FUNCTION.  CONSTRUCTION IS NOT LEGISLATION AND MUST AVOID
"THAT RETROSPECTIVE EXPANSION OF MEANING WHICH PROPERLY DESERVES THE
STIGMA OF JUDICIAL LEGISLATION."  KIRSCHBAUM CO. V. WALLING, 316 U.S.
517, 522.  TO BLUR THE DISTINCTIVE FUNCTIONS OF THE LEGISLATIVE AND
JUDICIAL PROCESSES IS NOT CONDUCIVE TO RESPONSIBLE LEGISLATION. 

WE AGREE THEREFORE WITH THE CIRCUIT COURT OF APPEALS IN HOLDING
INVALID THE LIMITATIONS AS TO THE NUMBER OF EMPLOYEES WITHIN A DEFINED
AREA.  BUT WE CANNOT FOLLOW THAT COURT IN DELETING THIS PART OF THE
ADMINISTRATIVE REGULATION AND, BY APPLYING WHAT REMAINS OF THE
DEFINITION, EXEMPTING HOLLY HILL'S EMPLOYEES FROM THE REQUIREMENTS OF
THE ACT.  SINCE THE PROVISION AS TO THE NUMBER OF EMPLOYEES WAS NOT
AUTHORIZED, THE ENTIRE DEFINITION OF WHICH THAT LIMITATION WAS A PART
MUST FALL.  WE CAN HARDLY ASSUME THAT THE ADMINISTRATOR WOULD HAVE
DEFINED "AREA OF PRODUCTION" MERELY BY DELETING THE EMPLOYEE PROVISION,
HAD HE KNOWN OF ITS INVALIDITY.  IT WOULD BE THE SHEEREST GUESSWORK TO
BELIEVE THAT ELIMINATION OF AN IMPORTANT FACTOR IN THE ADMINISTRATOR'S
EQUATION WOULD HAVE LEFT HIS EQUATION UNAFFECTED EVEN IF HE DID NOT
HERE INSIST UPON ITS IMPORTANCE.  IT IS NOT FOR US TO WRITE A
DEFINITION.  THAT IS THE ADMINISTRATOR'S DUTY. 

CONCLUDING, THEN, THAT WHEN CONGRESS GRANTED EXEMPTIONS FOR WORKERS
WITHIN THE "AREA OF PRODUCTION (AS DEFINED BY THE ADMINISTRATOR)" IT
RESTRICTED THE ADMINISTRATOR TO THE DRAWING OF GEOGRAPHIC LINES, EVEN
THOUGH HE MAY TAKE INTO ACCOUNT ALL RELEVANT ECONOMIC FACTORS IN THE
CHOICE OF AREAS OPEN TO HIM, THE REGULATIONS WHICH MADE DISCRIMINATIONS
WITHIN THE AREA DEFINED BY APPLYING THE EXEMPTION ONLY TO PLANTS WITH
LESS THAN SEVEN EMPLOYEES ARE ULTRA VIRES.  BUT THAT LEAVES THE
DIFFICULT PROBLEM OF THE PROPER DISPOSITION OF THE CASE.  IT IS OUR
VIEW THAT THE CASE SHOULD BE REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO HOLD IT UNTIL THE ADMINISTRATOR, BY MAKING A VALID
DETERMINATION OF THE AREA WITH ALL DELIBERATE SPEED, ACTS WITHIN THE
AUTHORITY GIVEN HIM BY CONGRESS. 

SUCH A DISPOSITION IS MOST CONSONANT WITH JUSTICE TO ALL INTERESTS IN
RETRACING THE ERRONEOUS COURSE THAT HAS BEEN TAKEN.  NEITHER LAW NOR
LOGIC DICTATES AN "EITHER-OR" CONCLUSION - THAT IS, A CONCLUSION THAT
THE EMPLOYMENT IN THESE INDUSTRIES IS ENTIRELY EXEMPT BECAUSE THE
ADMINISTRATOR MISCONCEIVED THE BOUNDS OF HIS REGULATORY POWERS ALTHOUGH
PLAINLY ENOUGH HE MEANT TO EXERCISE THEM SO AS NOT TO WITHDRAW ALL
THESE EMPLOYMENTS FROM THE REQUIREMENTS OF THE ACT, OR THAT EMPLOYMENT
IN THESE INDUSTRIES IS SUBJECT TO THE ACT BECAUSE NO EXCEPTION EXCLUDES
IT.  THE TWO OPPOSING ALTERNATIVES DO VIOLENCE TO THE LAW AS CONGRESS
WROTE IT.  TO HOLD THAT ALL INDIVIDUALS "ENGAGED IN HANDLING, PACKING,
STORING, GINNING, COMPRESSING, PASTEURIZING, DRYING, PREPARING IN THEIR
RAW OR NATURAL STATE, OR CANNING OF AGRICULTURAL OR HORTICULTURAL
COMMODITIES FOR MARKET, OR IN MAKING CHEESE OR BUTTER OR OTHER DAIRY
PRODUCTS" ARE EXEMPT FROM THE OPERATION OF THE ACT IS OBVIOUSLY TO FLY
IN THE FACE OF CONGRESSIONAL PURPOSE.  THE ACT EXEMPTS SOME BUT NOT ALL
OF THE EMPLOYEES ENGAGED IN THESE INDUSTRIES, AND IT IS NOT FOR US NOW
TO SAY THAT ALL ARE EXEMPT.  SO TO HOLD WOULD POSTPONE THE OPERATION OF
THE ACT IN THE ENUMERATED INSTANCES FOR AT LEAST SIX YEARS BEYOND THE
DATE FIXED BY CONGRESS.  EQUALLY OFFENDING TO THE PURPOSES OF CONGRESS
AND THEREFORE TO FAIRNESS IN THIS SITUATION IS THE SUGGESTION THAT IF
THE EXEMPTION FALLS ALL EMPLOYEES ENGAGED IN THE DESIGNATED INDUSTRIES
ARE COVERED BY THE ACT. 

THE ACCOMMODATION THAT WE ARE MAKING ASSUMES, WHAT WE MUST ASSUME,
THAT THE ADMINISTRATOR WILL RETROSPECTIVELY ACT AS CONSCIENTIOUSLY
WITHIN THE BOUNDS OF THE POWER GIVEN HIM BY CONGRESS AS HE WOULD HAVE
DONE INITIALLY HAD HE LIMITED HIMSELF TO HIS AUTHORITY.  TO BE SURE
THIS WILL BE A RETROSPECTIVE JUDGMENT, AND LAW SHOULD AVOID
RETROACTIVITY AS MUCH AS POSSIBLE.  BUT OTHER POSSIBLE DISPOSITIONS
LIKEWISE INVOLVE RETROACTIVITY, WITH THE ADDED MISCHIEF OF PRODUCING A
RESULT CONTRARY TO THE STATUTORY DESIGN. 

SUCH AN ADAPTATION OF COURT PROCEDURE TO A REMOLDING OF THE SITUATION
AS NEARLY AS MAY BE TO WHAT IT SHOULD HAVE BEEN INITIALLY IS NOT
UNPRECEDENTED.  SUCH WAS ESSENTIALLY THE PROCEDURE WHICH WAS DEVISED TO
UNRAVEL THE SKEIN IN UNITED STATES V. MORGAN, 307 U.S. 183.  THE COURT
DID NOT FEEL ITSELF BALKED BY THE KIND OF CONSIDERATIONS THAT SEEMED
CONTROLLING TO A BARON PARKE.  THE CREATIVE ANALOGIES OF THE LAW WERE
DRAWN UPON BY WHICH GREAT EQUITY JUDGES, EXERCISING IMAGINATIVE
RESOURCEFULNESS, HAVE ALWAYS ESCAPED THE IMPRISONMENT OF REASON AND
FAIRNESS WITHIN MECHANICAL CONCEPTS OF THE COMMON LAW.  SEE, E.G.,
ATLANTIC COAST LINE V. FLORIDA, 295 U.S. 301; INLAND STEEL CO. V.
UNITED STATES, 306 U.S. 153; AND FOR SOME EXAMPLES OF THIS APPROACH SEE
GRAF V. HOPE BUILDING CORP., 254 N.Y. 1, 7(CARDOZO, CH. J.,
DISSENTING).  THAT SUCH WERE THE LARGE CONSIDERATIONS THAT GUIDED
DECISION IN THE MORGAN CASE THE OPINION MAKES CLEAR:  "  ...  IN
CONSTRUING A STATUTE SETTING UP AN ADMINISTRATIVE AGENCY AND PROVIDING
FOR JUDICIAL REVIEW OF ITS ACTION, COURT AND AGENCY ARE NOT TO BE
REGARDED AS WHOLLY INDEPENDENT AND UNRELATED INSTRUMENTALITIES OF
JUSTICE, EACH ACTING IN THE PERFORMANCE OF ITS PRESCRIBED STATUTORY
DUTY WITHOUT REGARD TO THE APPROPRIATE FUNCTION OF THE OTHER IN
SECURING THE PLAINLY INDICATED OBJECTS OF THE STATUTE.  COURT AND
AGENCY ARE THE MEANS ADOPTED TO ATTAIN THE PRESCRIBED END, AND SO FAR
AS THEIR DUTIES ARE DEFINED BY THE WORDS OF THE STATUTE, THOSE WORDS
SHOULD BE CONSTRUED SO AS TO ATTAIN THAT END THROUGH COORDINATED
ACTION.  NEITHER BODY SHOULD REPEAT IN THIS DAY THE MISTAKE MADE BY THE
COURTS OF LAW WHEN EQUITY WAS STRUGGLING FOR RECOGNITION AS AN
AMELIORATING SYSTEM OF JUSTICE; NEITHER CAN RIGHTLY BE REGARDED BY THE
OTHER AS AN ALIEN INTRUDER, TO BE TOLERATED IF MUST BE, BUT NEVER TO BE
ENCOURAGED OR AIDED BY THE OTHER IN THE ATTAINMENT OF THE COMMON AIM." 
307 U.S. AT 191. 

IF IT BE SAID THAT IN THE MORGAN CASE THE COURT WAS DEALING WITH A
FUND IN COURT - IRRELEVANT THOUGH THAT BE TO THE GOVERNING PRINCIPLES
OF THAT DECISION - NO SUCH CONSTRICTION CAN BE MADE OF THE IMPORT OF
OUR DECISION IN GENERAL AMERICAN TANK CAR CORP. V. TERMINAL CO., 308
U.S. 422.  THAT, LIKE THIS, WAS AN ACTION AT LAW AND NOT A SUIT IN
EQUITY INVOLVING A RES. THE RESPONDENT WAS SEEKING TO RECOVER A SUM
ADMITTEDLY DUE UNDER A CAR-LEASING AGREEMENT WITH PETITIONER.  THE
INTERSTATE COMMERCE COMMISSION URGED THAT SINCE THE COMMISSION HAD NOT,
AS THE LAW REQUIRED, PASSED UPON THE VALIDITY OF THE PRACTICE INVOLVED
IN THE AGREEMENT, THE DISTRICT COURT WAS WITHOUT JURISDICTION.  AND SO,
TECHNICALLY SPEAKING, THE DISTRICT COURT WAS.  BUT THIS COURT REMANDED
THE CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO HOLD THE CAUSE
"PENDING THE CONCLUSION OF AN APPROPRIATE ADMINISTRATIVE PROCEEDING." 
THE PETITION FOR REHEARING CLAIMED THAT OUR DECISION INVOLVED
RETROACTIVITY.  309 U.S. 694.  SO IT DID.  BUT AS AGAINST RETROACTIVITY
WE BALANCED THE CONSIDERATIONS THAT MADE RETROACTIVITY SEEM THE LESSER
EVIL. 

IN SHORT, THE JUDICIAL PROCESS IS NOT WITHOUT THE RESOURCES OF
FLEXIBILITY IN SHAPING ITS REMEDIES, THOUGH COURTS FROM TIME TO TIME
FAIL TO AVAIL THEMSELVES OF THEM.  THE INTERPLAY BETWEEN LAW AND EQUITY
IN THE EVOLUTION OF MORE JUST RESULTS THAN THE HARDENED COMMON LAW
AFFORDED, HAS PROPERLY BEEN DRAWN UPON IN WORKING OUT ACCOMMODATING
RELATIONSHIPS BETWEEN THE JUDICIARY AND ADMINISTRATIVE AGENCIES.  AND
CERTAINLY IN SPECIFIC CASES, SUCH AS THOSE ALREADY REFERRED TO AND IN
THIS, IT IS CONSONANT WITH JUDICIAL ADMINISTRATION AND FAIRNESS NOT TO
BE BALKED BY THE UNDESIRABILITY OF RETROACTIVE ACTION ANY MORE THAN
COURTS HAVE FOUND IT DIFFICULT TO SANCTION LEGISLATIVE RATIFICATION OF
ACTS ORIGINALLY UNLAWFUL, UNITED STATES V. HEINSZEN & CO., 206 U.S.
370; TIACO V. FORBES, 228 U.S. 549; GRAHAM & FOSTER V. GOODCELL, 282
U.S. 409; HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 91, OR
RETROACTIVELY TO GIVE PRIOR LEGISLATION NEW SCOPE.  PARAMINO LUMBER CO.
V. MARSHALL, 309 U.S. 370.  AND IN HABEAS CORPUS PROCEEDINGS, EVEN
THOUGH A PETITIONER WAS UNLAWFULLY IN CUSTODY, THIS COURT HAS ALLOWED
CONTINUED RETENTION OF CUSTODY UNTIL A VALID ORDER COULD BE MADE. 
MAHLER V. EBY, 264 U.S. 32; TOD V. WALDMAN, 266 U.S. 113. 

FINALLY, THERE IS NO DIFFICULTY UPON SUCH A REMAND IN REQUIRING THE
ADMINISTRATOR TO PROMULGATE HIS DEFINITION.  THIS COURT HAS ON SEVERAL
OCCASIONS REQUIRED THE INTERSTATE COMMERCE COMMISSION TO TAKE
JURISDICTION WHEN IT DECLINED TO DO SO OR TO DISCHARGE A DUTY LAID UPON
THE COMMISSION BY STATUTE.  INTERSTATE COMMERCE COMMISSION V. HUMBOLDT
STEAMSHIP CO., 224 U.S. 474; LOUISVILLE CEMENT CO. V. INTERSTATE
COMMERCE COMMISSION, 246 U.S. 638.  SEE ALSO KANSAS CITY SOUTHERN RY.
CO. V. INTERSTATE COMMERCE COMMISSION, 252 U.S. 178.  THE DISTRICT
COURT WOULD NOT BE TELLING THE ADMINISTRATOR HOW TO EXERCISE HIS
DISCRETION BUT WOULD MERELY REQUIRE HIM TO EXERCISE IT.  IT IS A REMEDY
AGAINST INACTION. 

HOLLY HILL ALSO CONTENDED THAT IF IT IS NOT ENTIRELY EXEMPT FROM
PAYING THE OVERTIME RATES HERE AWARDED, IT IS ENTITLED TO THE ADVANTAGE
OF THE PARTIAL SEASONAL EXEMPTTIONS AFFORDED BY SECS. 7(B)(3) AND
7(C).  THE DISTRICT COURT RULED ADVERSELY TO HOLLY HILL ON THESE
CLAIMS, BUT THE CIRCUIT COURT OF APPEALS DID NOT REACH THEM.  IT WILL
BE TIME ENOUGH TO REACH THEM IF THEY SURVIVE THE DISPOSITION NOW MADE
OF THIS CASE. 

ACCORDINGLY, THE CASE IS REMANDED TO THE DISTRICT COURT TO PROCEED IN
CONFORMITY WITH THIS OPINION.  SO ORDERED. 

FN1  THE FACT THAT DAVENPORT IS WITHIN FOUR MILES OF HAINES CITY,
WITH A POPULATION GREATER THAN 2,500, LED THE DISTRICT COURT TO
CONCLUDE THAT HOLLY HILL WAS NOT LOCATED IN THE "OPEN COUNTRY" OR A
"RURAL COMMUNITY."  THIS APPEARS TO BE A PLAIN SOLECISM.  29 CODE FED.
REG. (SUPP. 1939) SEC. 536.2(E), PP. 2239-40, AND SEC. 536.2(D), P.
2240. 

FN2  IT IS CONCEDED THAT A SPECIFIC RULING ON THE POPULATION
CRITERION IS UNNECESSARY. 

FN3  HOLLY HILL HERE ATTACKED THE FINDING OF THE DISTRICT COURT THAT
ALL OF THE FRUIT DID NOT COME FROM WITHIN TEN MILES, BUT WE SEE NO
REASON TO DISTURB IT. 

FN4  "SEC.  13(A) THE PROVISIONS OF SECTIONS 6 AND 7 SHALL NOT APPLY
WITH RESPECT TO (1) ANY EMPLOYEE EMPLOYED IN A BONA FIDE EXECUTIVE,
ADMINISTRATIVE, PROFESSIONAL, OR LOCAL RETAILING CAPACITY, OR IN THE
CAPACITY OF OUTSIDE SALESMAN (AS SUCH TERMS ARE DEFINED AND DELIMITED
BY REGULATIONS OF THE ADMINISTRATOR); OR (2) ANY EMPLOYEE ENGAGED IN
ANY RETAIL OR SERVICE ESTABLISHMENT THE GREATER PART OF WHOSE SELLING
OR SERVICING IS IN INTRASTATE COMMERCE; OR (3) ANY EMPLOYEE EMPLOYED AS
A SEAMAN; OR (4) ANY EMPLOYEE OF A CARRIER BY AIR SUBJECT TO THE
PROVISIONS OF TITLE II OF THE RAILWAY LABOR ACT; OR (5) ANY EMPLOYEE
EMPLOYED IN THE CATCHING, TAKING, HARVESTING, CULTIVATING, OR FARMING
OF ANY KIND OF FISH, SHELLFISH, CRUSTACEA, SPONGES, SEAWEEDS, OR OTHER
AQUATIC FORMS OF ANIMAL AND VEGETABLE LIFE, INCLUDING THE GOING TO AND
RETURNING FROM WORK AND INCLUDING EMPLOYMENT IN THE LOADING, UNLOADING,
OR PACKING OF SUCH PRODUCTS FOR SHIPMENT OR IN PROPAGATING, PROCESSING,
MARKETING, FREEZING, CANNING, CURING, STORING, OR DISTRIBUTING THE
ABOVE PRODUCTS OR BYPRODUCTS THEREOF; OR (6) ANY EMPLOYEE EMPLOYED IN
AGRICULTURE; OR (7) ANY EMPLOYEE TO THE EXTENT THAT SUCH EMPLOYEE IS
EXEMPTED BY REGULATIONS OR ORDERS OF THE ADMINISTRATOR ISSUED UNDER
PUBLICATION OF ANY WEEKLY OR SEMIWEEKLY NEWSPAPER WITH A CIRCULATION OF
LESS THAN THREE THOUSAND THE MAJOR PART OF WHICH CIRCULATION IS WITHIN
THE COUNTY WHERE PRINTED AND PUBLISHED; OR (9) ANY EMPLOYEE OF A
STREET, SUBURBAN, OR INTERURBAN ELECTRIC RAILWAY, OR LOCAL TROLLEY OR
MOTOR BUS CARRIER, NOT INCLUDED IN OTHER EXEMPTIONS CONTAINED IN THIS
PRODUCTION (AS DEFINED BY THE ADMINISTRATOR), ENGAGED IN HANDLING,
PACKING, STORING, GINNING, COMPRESSING, PASTEURIZING, DRYING, PREPARING
IN THEIR RAW OR NATURAL STATE, OR CANNING OF AGRICULTURAL OR
HORTICULTURAL COMMODITIES FOR MARKET, OR IN MAKING CHEESE OR BUTTER OR
OTHER DAIRY PRODUCTS; OR (11) ANY SWITCHBOARD OPERATOR EMPLOYED IN A
PUBLIC TELEPHONE EXCHANGE WHICH HAS LESS THAN FIVE HUNDRED STATIONS." 
52 STAT. 1067, AS AMENDED, 53 STAT. 1266.    FN5  THE EXEMPTIONS
PROVIDED IN SEC. 13(A)(10) DID NOT APPEAR IN THE BILL AS REPORTED TO
THE SENATE, BUT IN THE DEBATE ON THE FLOOR OF THAT BODY AN EFFORT WAS
MADE TO EXTEND THE EXEMPTION ACCORDED TO AGRICULTURAL WORKERS, AND AS
PASSED BY THE SENATE THE BILL PROVIDED THAT "THE TERM 'PERSON EMPLOYED
IN AGRICULTURE', AS USED IN THIS ACT, INSOFAR AS IT SHALL REFER TO
FRESH FRUITS AND VEGETABLES, SHALL INCLUDE PERSONS EMPLOYED WITHIN THE
AREA OF PRODUCTION ENGAGED IN PREPARING, PACKING, OR STORING SUCH FRESH
FRUITS OR VEGETABLES IN THEIR RAW OR NATURAL STATE."  81 CONG. REC.
7876, 7949, 7957.  THIS PROVISION, VARIED SOMEWHAT BY EXTENDING ITS
COVERAGE TO ALL "AGRICULTURAL COMMODITIES" (82 CONG. REC. 1783-1784),
REMAINED AS PART OF THE DEFINITION OF "EMPLOYEE EMPLOYED IN
AGRICULTURE" (H. REP. NO. 2182, 75TH CONG., 3D SESS., P. 2) UNTIL
SHORTLY BEFORE THE BILL WAS FINALLY ADOPTED BY THE HOUSE, AT WHICH TIME
THE SO-CALLED BIERMANN AMENDMENT INCLUDED WITHIN THE DEFINITION OF
EMPLOYEES ENGAGED IN AGRICULTURE "INDIVIDUALS EMPLOYED WITHIN THE AREA
OF PRODUCTION, ENGAGED IN THE HANDLING, PACKING, STORING, GINNING,
COMPRESSING, PASTEURIZING, DRYING, OR CANNING OF FARM PRODUCTS AND IN
MAKING CHEESE AND BUTTER."  83 CONG. REC. 7401, 7407.  AT THE
CONFERENCE ON THE DISAGREEING VOTES OF THE TWO HOUSES, THE "AREA OF
PRODUCTION" PROVISION WAS GIVEN THE FORM IN WHICH IT WAS FINALLY
ENACTED, AND THERE THE PARENTHETICAL PHRASE "AS DEFINED BY THE
ADMINISTRATOR" WAS INSERTED AFTER "AREA OF PRODUCTION."  83 CONG. REC.
9249. 

FN6  COMPARE THIS PROVISION WITH SEC. 13(A)(1) EXEMPTING EMPLOYEES IN
"A BONA FIDE EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, OR LOCAL
RETAILING CAPACITY, OR IN THE CAPACITY OF OUTSIDE SALESMAN (AS SUCH
TERMS ARE DEFINED AND DELIMITED BY REGULATIONS OF THE ADMINISTRATOR)." 
FOR THIS CLASS, THE ADMINISTRATOR IS GIVEN THE AUTHORITY TO DEFINE AND
DELIMIT THE "TERMS" USED.  BUT IN THE SAME SECTION, SUBDIVISION 10
GRANTS AUTHORITY TO DEFINE NOT THE TERM "AREA," BUT TO DEFINE THE
"AREA." 

FN7  SEE SECS. 13(A)(2)(8)(11) DEALING RESPECTIVELY WITH RETAIL OR
SERVICE ESTABLISHMENTS, WEEKLY OR SEMI-WEEKLY NEWSPAPERS AND PUBLIC
TELEPHONE EXCHANGES. 

FN8  REPRESENTATIVE BIERMANN WAS ASKED WHETHER HIS AMENDMENT "WOULD
APPLY TO A PACKING HOUSE LOCATED IN IOWA AND ILLINOIS IN THE AREA OF
PRODUCTION, WHICH EMPLOYS TWO OR THREE HUNDRED MEN."  THIS WAS HIS
COMPLETE ANSWER:  "SPEAKING FRANKLY, I THINK THAT IS SOMETHING THAT
WOULD HAVE TO BE WORKED OUT.  THERE ARE SOME PACKING HOUSES IN THE
STATE OF IOWA THAT THIS AMENDMENT WOULD APPLY TO PERHAPS; BUT MAY I SAY
THAT ALL OVER THIS COUNTRY IT HAS BEEN RECOGNIZED THAT THERE SHOULD BE
A LABOR DIFFERENTIAL BETWEEN THE LARGE CITY AND THE LITTLE TOWN." 
CERTAINLY MR. BIERMANN DID NOT GIVE THE REMOTEST INTIMATION THAT "AREA
OF PRODUCTION" WAS MEANT TO CONVEY ANY IDEA OTHER THAN THAT WHICH AREA
USUALLY CONVEYS. 

MR. JUSTICE ROBERTS: 

I AGREE WITH THE OPINION OF THIS COURT AND WITH THE OPINION OF THE
CIRCUIT COURT OF APPEALS THAT THE ADMINISTRATOR WAS WITHOUT POWER (IF
"AREA OF PRODUCTION" IS TO HAVE ANY SENSIBLE MEANING) TO EXCLUDE FROM
THE AREA AND FROM THE OPERATION OF THE EXEMPTION WORKERS IN A
PROCESSING PLANT CLEARLY WITHIN THE AREA ON THE GROUND THAT A CERTAIN
NUMBER OF EMPLOYES WORKED IN THE PLANT.  IF CONGRESS, WHEN IT SAID THAT
THE AREA OF PRODUCTION SHOULD BE DEFINED BY THE ADMINISTRATOR, MEANT
THAT THAT OFFICIAL SHOULD HAVE A ROVING COMMISSION TO CREATE EXEMPTIONS
FROM THE ACT, THE ENTIRE PROVISION MUST FALL AS AN UNCONSTITUTIONAL
ATTEMPT TO DELEGATE LEGISLATIVE POWER.  WE SHOULD NEVER, HOWEVER,
CONSTRUE AN ACT IN A SENSE WHICH WOULD RENDER IT UNCONSTITUTIONAL IF A
DIFFERENT AND PERMISSIBLE CONSTRUCTION WILL SAVE IT. 

THE LEGISLATIVE HISTORY MAKES IT CLEAR ENOUGH THAT CONGRESS WISHED TO
EXEMPT PLANTS PROCESSING AGRICULTURAL COMMODITIES IN THE LOCALITY OF
THE FARMS WHICH PRODUCED THE COMMODITIES.  REALIZING THAT THE
ASCERTAINMENT OF THE FACTS IN PARTICULAR CASES WOULD BE ESSENTIAL TO
DEFINITION OR DELIMITATION OF THE AREA SERVED, CONGRESS, BY THE PHRASE
"AS DEFINED BY THE ADMINISTRATOR," MEANT TO PERMIT HIM TO DRAW LINES IN
DELIMITATION OF AREAS APPROPRIATELY TO CORRESPOND TO THE FACTS.  I
CONSTRUE THE WORD "DEFINE," IN THIS CONTEXT, TO MEAN "ASCERTAIN THE
FACTS AND ANNOUNCE THE RESULT OF SUCH ASCERTAINMENT."  THE OPINIONS OF
THE COURT BELOW ELABORATE THIS VIEW. 

I THINK THE ADMINISTRATOR'S ORDER MAY WELL BE ALLOWED TO STAND WITH
THE ILLEGAL AND UNAUTHORIZED FEATURE OF IT DELETED.  THIS IS WHAT THE
CIRCUIT COURT OF APPEALS DECIDED AND I BELIEVE IT WAS RIGHT.  OTHER
FEATURES OF THE ORDER WERE NOT, AND ARE NOT, ATTACKED AND IF, FOR THE
FUTURE, THE ADMINISTRATOR DESIRES, IN OTHER ASPECTS, TO AMEND HIS
ORDER, THERE IS NOTHING TO PREVENT.  THIS WOULD LEAD TO AFFIRMANCE OF
THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS AND, IF I COULD MAKE MY
VOTE EFFECTIVE TO THAT END, I SHOULD VOTE FOR AFFIRMANCE.  THE OTHER
MEMBERS OF THE COURT, HOWEVER, ARE FOR REVERSAL, BUT ARE DIVIDED ON THE
QUESTION WHETHER THE JUDGMENT OF THE DISTRICT COURT SHOULD BE AFFIRMED
OR THE CASE HELD IN THAT COURT PENDING AMENDMENT OF THE ORDER BY THE
ADMINISTRATOR.  ENTERTAINING THE VIEWS WHICH I DO, I CANNOT VOTE TO
AFFIRM THE JUDGMENT OF THE DISTRICT COURT, BUT THAT WILL BE THE EFFECT
OF MY ACTION IF I VOTE SIMPLY TO REVERSE THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS.  WHILE I THINK NONE OF THE AUTHORITIES CITED IN THE
OPINION OF MR. JUSTICE FRANKFURTER JUSTIFY THE PROCEDURE THERE
OUTLINED, I AM CONSTRAINED TO VOTE IN ACCORDANCE WITH HIS OPINION. 

I AM CLEAR THAT, IF THE ADMINISTRATOR IS TO BE PERMITTED TO AMEND HIS
ORDER, OR TO ENTER A NEW ORDER EFFECTIVE FROM THE DATE OF THE ONE UNDER
ATTACK, HE MAY NOT RESORT TO GERRYMANDERING OR TO ANY OTHER DEVICE TO
ACCOMPLISH BY INDIRECTION WHAT THE DECISION HOLDS HE CANNOT DO
DIRECTLY.  I PERSONALLY BELIEVE THE SCOPE OF HIS DISCRETION IS MORE
LIMITED THAN SOME OF MY COLLEAGUES THINK AND I DO NOT WISH MY
CONCURRENCE IN THE REMAND OF THE CASE TO THE DISTRICT COURT, TO BE
THERE HELD PENDING THE PROMULGATION OF AN AMENDED ORDER, OR A NEW
ORDER, TO BE TAKEN AS APPROVING IN ADVANCE THE VIEWS EXPRESSED AS TO
THE EXTENT OF THE ADMINISTRATOR'S DISCRETION. 

MR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY CONCUR, DISSENTING: 

IN MY OPINION THE ADMINISTRATOR HAS DEFINED "AREA OF PRODUCTION" IN A
VALID MANNER, AND THEREFORE THE EMPLOYEE PETITIONERS SHOULD PREVAIL. 
BUT IF, AS THE MAJORITY HOLD, HIS DEFINITION IS NOT VALID, THEN THE
EXEMPTION IS NOT OPERATIVE, AND FOR THAT REASON THE PETITIONERS
LIKEWISE SHOULD PREVAIL.  I DISSENT, THEREFORE, FROM THE COURT'S
CONCLUSION THAT THE DEFINITION IS VOID.  I DISSENT EQUALLY FROM THE
WHOLLY NOVEL DISPOSITION IT MAKES OF THE CAUSE ON THAT HYPOTHESIS, IN
REMANDING IT TO AWAIT THE ADMINISTRATOR'S RETROACTIVE REDETERMINATION
OF THE PARTIES' RIGHTS. 

                                  I. 

THE BASIC ISSUE, AS THE CASE WAS PRESENTED, IS WHETHER THE
ADMINISTRATOR CAN INCLUDE IN THE DEFINITION NOT ONLY SPACIAL LIMITS BUT
ALSO A LIMIT UPON THE NUMBER OF EMPLOYEES IN EXEMPTED ESTABLISHMENTS. 
THE ADMINISTRATOR INCLUDED THIS FACTOR IN HIS FIRST DEFINITION; FN1
LATER REEXAMINED IT IN EXTENSIVE HEARINGS; FN2  CONCLUDED ON THE RECORD
THUS MADE THAT NO PURELY GEOGRAPHICAL DEFINITION COULD BE CONFORMED TO
THE MAJOR LEGISLATIVE POLICIES ANNOUNCED IN THE STATUTE; FN3  HAS
RETAINED IT IN EACH OF SEVERAL LATER DEFINITIONS, VARYING IN OTHER
DETAILS, FRAMED AFTER EXTENSIVE HEARING; FN4  AND NOW EARNESTLY INSISTS
IT, OR AN EQUIVALENT LIMITATION ON SIZE OF THE PLANT, MUST BE INCLUDED,
UNLESS ANY DEFINITION HE MAY MAKE IS TO WORK HAVOC WITH SOME MAJOR
POLICY OF THE ACT, EITHER BY EXEMPTING LARGE NUMBERS OF INDUSTRIAL
EMPLOYEES  FN5  OR BY CREATING DISTURBANCES OF COMPETITIVE SITUATIONS,
BOTH FOR FARMERS AND FOR CANNERS AND PACKERS, FN6  WHICH THE STATUTE
EXPRESSLY SOUGHT TO AVOID. 

THE ADMINISTRATOR'S TASK IS HIGHLY COMPLEX.  IT INVOLVES DEFINING
EXEMPTIONS FOR EMPLOYEES THROUGHOUT THE NATION ENGAGED IN "HANDLING,
PACKING, STORING, GINNING, COMPRESSING, PASTEURIZING, DRYING, PREPARING
IN THEIR RAW OR NATURAL STATE, OR CANNING OF AGRICULTURAL OR
HORTICULTURAL COMMODITIES FOR MARKET, OR IN MAKING CHEESE OR BUTTER OR
OTHER DAIRY PRODUCTS."  SEC. 13(A)(10).  ALL THESE OPERATIONS FOLLOW
IMMEDIATELY UPON HARVEST AND REMOVAL FROM THE FIELD OR MILKING.  ALL
CAN BE DONE ON THE FARM AND FREQUENTLY ARE DONE THERE, BUT MAY BE DONE
ELSEWHERE, OFTEN IN FACTORIES.  ALL CONSIST IN THE FIRST STAGES OF
PREPARATION FOR MARKET. 

BUT WHETHER THE SPECIFIED OPERATIONS WILL BE DONE ON THE FARM, AS
PART OF THE FARM WORK OR AWAY FROM IT, AND IN EITHER SMALL NEIGHBORHOOD
ESTABLISHMENTS OR IN LARGER INDUSTRIAL PLANTS, WILL DEPEND UPON A
VARIETY OF FACTORS AS GREAT AS THAT WHICH COMPREHENDS THE WHOLE VAST
PROCESS OF STARTING THE NATION'S CROPS, OVER 300,  FN7  ON THEIR
RESPECTIVE MARKETING COURSES.  THE INITIAL STEPS IN MARKETING SUCH
WIDELY DIFFERENT PRODUCTS AS COTTON AND APPLES; TOBACCO AND MILK;
POTATOES AND CITRUS FRUITS; LEGUME CROPS, WHEAT, CORN AND OTHER GRAINS,
ON THE ONE HAND, AND TOMATOES, STRAWBERRIES, TRUCK GARDEN PRODUCTS,
ETC., ON THE OTHER, ARE WITHIN THE DELEGATION. 

THE MERE ENUMERATION OF THESE INSTANCES INDICATES SOME OF THE
VARIABLES INVOLVED.  OTHERS ADD TO THE DIFFICULTY.  HIGHLY PERISHABLE
CROPS, AS FRUITS AND VEGETABLES, REQUIRE IMMEDIATE ACTION IN THESE
STAGES OF HANDLING.  COTTON, GRAINS, ROOT CROPS, ETC., LESS PERISHABLE,
MAY WAIT LONGER ON THE FARM, SOME FOR MONTHS, BEFORE THESE PROCESSES
BECOME NECESSARY.  SOME CROPS ARE HIGHLY CONCENTRATED FOR PRODUCTION IN
A FEW REGIONS, SUCH AS CITRUS FRUITS IN FLORIDA, SOUTHERN TEXAS, AND
SOUTHERN CALIFORNIA, BUT ARE MARKETED ON A NATION-WIDE SCALE.  OTHERS
HAVE REGIONAL AREAS OF PRODUCTION, LIKE COTTON IN THE SOUTH, CELERY IN
MICHIGAN, TOBACCO IN THE BORDER STATES AND A FEW NORTHERN REGIONS, YET
DEPEND ON THE NATIONAL MARKET.  STILL OTHERS HAVE REGIONS OF GREATER OR
LESS CONCENTRATION, BUT ARE GROWN ALL OVER THE NATION, LIKE WHEAT AND
OTHER GRAINS, APPLES, POTATOES, ETC. 

OBVIOUSLY, "AREA OF PRODUCTION," IN THE SENSE OF WHERE THE COMMODITY
IS PRODUCED FOR PURPOSES OF COMMERCIAL MARKETING, WILL VARY FROM THE
WHOLE NATION, IN THE CASE OF THE MORE COMMON GRAINS, FRUIT CROPS AND
ROOT CROPS, DOWN TO A FEW HIGHLY CONCENTRATED REGIONS OR AREAS IN THE
CASE OF OTHERS MORE DEPENDENT UPON SPECIAL CLIMATIC AND SOIL
COMBINATIONS.  AND BETWEEN THE EXTREMES OF NATION-WIDE AND HIGHLY
LOCALIZED PRODUCTION ARE ALL RANGES OF SECTIONAL AND REGIONAL
PRODUCTION AREAS.  FN8 

RESPONDENT REGARDS THE "AREA OF PRODUCTION" AS THE WHOLE REGION WHERE
A COMMODITY IS GROWN, AND THEREFORE SAYS THE ADMINISTRATOR HAS NO MORE
TO DO THAN LOCATE THE EXISTING LIMITS OF THESE AREAS.  BY THIS
CRITERION THE SOUTH, PERHAPS INCLUDING CALIFORNIA, WOULD BE THE
UNALTERABLE "AREA OF PRODUCTION" FOR COTTON, THE WHOLE NATION FOR EGGS,
WHEAT, CORN, ETC.  THIS CONCEPTION WOULD NULLIFY THE DELEGATION, MAKING
OF THE ADMINISTRATOR MERELY A SURVEYOR IN THE WRONG PLACE.  CONGRESS
CLEARLY WAS NOT MAKING HIM ONLY A FINDER OF FACT, NAMELY, OF THE
GEOGRAPHICAL LIMITS SURROUNDING REGIONS WHERE 300 DIFFERENT COMMODITIES
ARE PRODUCED.  SUCH A VIEW WOULD EXEMPT ALL EMPLOYEES ENGAGED IN THE
OPERATIONS SPECIFIED IN SEC. 13(A)(10). 

THE SAME OBJECTIONS FORBID REGARDING THE "AREA OF PRODUCTION" AS THE
REGION FROM WHICH THE PARTICULAR PLANT PURCHASES ITS RAW MATERIAL.  THE
ONLY SUBSTANTIAL DIFFERENCE WOULD BE TO MAKE THE ADMINISTRATOR'S FACT
FINDING TASK A MORE IMPOSSIBLE ONE.  A DEFINITION WOULD BE REQUIRED FOR
EVERY PLANT ENGAGING IN ANY OF THE SPECIFIED OPERATIONS FOR EACH OF THE
MORE THAN 300 AGRICULTURAL AND HORTICULTURAL COMMODITIES PRODUCED
ANNUALLY IN THE UNITED STATES.  CONGRESS HARDLY COULD HAVE INTENDED TO
LOAD UPON THE ADMINISTRATOR A TASK OF THESE INFINITE PROPORTIONS.  NOR
DID IT INTEND THE EMPLOYER TO DEFINE ITS OWN EXEMPTION, OR TO MAKE THAT
EXEMPTION AUTOMATIC.  CONGRESS INTENDED THE ADMINISTRATOR TO DEFINE THE
AREA OF PRODUCTION.  IT DID NOT AT THE SAME TIME INTEND TO OVERWHELM
HIM WITH MAKING MYRIADS OF PARTICULAR AND HIGHLY VARIABLE DEFINITIONS
FOR EACH OPERATING UNIT, OR TO MAKE HIM MERELY A RUNNER OF COURSES AND
DISTANCES, WHETHER LARGE OR SMALL.  IT RATHER INTENDED HIM TO MAKE
PRACTICAL, WORKABLE AND THEREFORE GENERIC AND STABLE DEFINITIONS. 

IT FOLLOWS NECESSARILY THAT THE ADMINISTRATOR'S POWER IS
DISCRETIONARY AND THE IMPORTANT QUESTIONS ARE TO WHAT EXTENT AND IN
WHAT MANNER MAY HIS DISCRETION WORK.  NEITHER SUBDIVISION (A)(10) NOR
SEC. 13 AS A WHOLE SUPPLIES THESE ANSWERS.  THE SECTION ITSELF DOES NOT
SUPPLY ALL THE STANDARDS NECESSARY FOR DEFINITION OF THE TERM.  AT MOST
IT AFFORDS DIRECTION TO EXEMPT SOME BUT NOT OTHER EMPLOYEES ENGAGED IN
THE SPECIFIED ACTIVITIES AND THAT THOSE EXEMPTED MUST BE WITHIN THE
"AREA OF PRODUCTION."  THIS NECESSARILY INCLUDES SOME REGION WHERE THE
COMMODITY IS PRODUCED.  BUT SINCE THAT REGION IS AN UNKNOWN QUANTITY
AND SO ALSO IS THE QUESTION WHAT EMPLOYEES WITHIN IT ARE TO BE
EXEMPTED, SOLUTIONS MUST BE FOUND EITHER IN OTHER PROVISIONS OF THE
STATUTE OR IN THE LEGISLATIVE HISTORY, UNLESS THE DELEGATION IS TO FALL
FOR WANT OF STANDARDS.    THE STATUTE ITSELF FURNISHES CLEAR GUIDES FOR
DIRECTING THE ADMINISTRATOR.  HE IS CONFINED, AS HAS BEEN NOTED, BY
SUBSECTION (A)(10) TO EMPLOYEES ENGAGED IN THE SPECIFIED INITIAL
OPERATIONS OF MARKETING.  THEY MUST WORK WITHIN SOME PRODUCING REGION. 
APART FROM THE EXEMPTION THEY ARE WITHIN THE ACT'S COVERAGE, BUT CLOSE
TO THE MAJOR LINE IT DRAWS BETWEEN FARM WORKERS, WHO ARE EXCLUDED FROM,
AND INDUSTRIAL LABOR, WHICH IS WITHIN ITS COVERAGE.  DEPENDING, NOT
UPON WHAT THEY DO, BUT UPON WHERE AND HOW THEY DO THIS WORK, THEY WOULD
FALL ON ONE SIDE OR THE OTHER OF THIS LINE AND WITHIN OR WITHOUT THE
INCIDENCE OF THE EVILS THE ACT SOUGHT TO ERADICATE.  THESE WERE "THE
EXISTENCE, IN INDUSTRIES  ...  OF LABOR CONDITIONS DETRIMENTAL TO THE
MAINTENANCE OF THE MINIMUM STANDARD OF LIVING NECESSARY FOR HEALTH,
EFFICIENCY, AND GENERAL WELL-BEING OF WORKERS.  ...  " FN9  CONGRESS
EXERCISED ITS AUTHORITY OVER COMMERCE, "TO CORRECT AND AS RAPIDLY AS
PRACTICABLE TO ELIMINATE THE CONDITIONS ABOVE REFERRED TO IN SUCH
INDUSTRIES WITHOUT SUBSTANTIALLY CURTAILING EMPLOYMENT OR EARNING
POWER."  SEC. 2(A), (B). 

THE BROAD LINE BETWEEN FARMING AND INDUSTRY RUNS THROUGHOUT THE ACT. 
FN10  IT IS THE STATUTE'S BASIC LINE OF POLICY BETWEEN COVERAGE AND
NONCOVERAGE.  THE LINE NOT ONLY IS PERTINENT TO EACH OF THE STATUTE'S
PROVISIONS BUT, WHERE THE CONTRARY IS NOT CLEARLY AND UNAMBIGUOUSLY
STATED, IT IS CONTROLLING.  THERE CAN BE NO ASSUMPTION THAT CONGRESS
INTENDED EMPLOYEES IN ONE GROUP TO BE TRANSFERRED TO OR TREATED AS
BEING IN THE OTHER WHERE NO SUCH CLEAR MANDATE CAN BE FOUND. 

IN DETERMINING WHAT CONGRESS INTENDED BY THE DELEGATION, IT IS
CRUCIAL TO KEEP IN MIND THAT, WHATEVER DECISION THE ADMINISTRATOR MAY
MAKE AND BY WHATEVER CRITERIA, THE EFFECT OF HIS ACTION MUST BE TO PUT
SOME EMPLOYEES ON ONE SIDE OF THIS LINE AND OTHERS ON THE OPPOSITE
SIDE.  THAT CONSEQUENCE HE CANNOT ESCAPE.  AND, BECAUSE HE CANNOT AVOID
IT, THE LINE IS PERTINENT AND MATERIAL TO HIS CHOICE, AS IT IS TO ALL
OTHERS HE MUST MAKE IN PERFORMING HIS DUTIES.  IT IS THE STATUTE'S
LODESTAR.  THE DISTINCTION BETWEEN FARMING AND INDUSTRY IS THE ESSENCE
OF HIS DETERMINATION.  AN "AREA OF PRODUCTION" DETERMINED WITHOUT
REFERENCE TO THIS DISTINCTION WOULD CONTRADICT, NOT ENFORCE, THE
STATUTE'S BASIC POLICY.  AND THIS APPEARS, NOT SOLELY FROM THE POLICY
ITSELF AND THE EFFECTS OF FAILURE TO TAKE IT INTO ACCOUNT, BUT FROM A
CONSIDERATION OF OTHER DETERMINATIONS THE ACT CONFIDES TO THE
ADMINISTRATOR AND OF THE MANNER IN WHICH IT REQUIRES HIM TO MAKE THEM. 

THUS, IN ISSUING MINIMUM WAGE ORDERS AND INDUSTRY CLASSIFICATIONS, HE
AND THE INDUSTRY COMMITTEES MUST HAVE "DUE REGARD TO ECONOMIC AND
COMPETITIVE CONDITIONS," AND ACT SO AS NOT TO "SUBSTANTIALLY CURTAIL
EMPLOYMENT" OR "GIVE A COMPETITIVE ADVANTAGE TO ANY GROUP."  AND THERE
IS A SPECIFIC PROHIBITION AGAINST FIXING WAGES OR CLASSIFICATIONS
"SOLELY ON A REGIONAL BASIS."  RATHER THE GOVERNING CRITERIA ARE TO BE
COMPETITIVE CONDITIONS, WAGES FOR COMPARABLE WORK FIXED BY COLLECTIVE
BARGAINING OR BY VOLUNTARY MINIMUM WAGE PLANS.  SEC. 8(B), (C), (D). 
THE STATUTE'S PRIMARY DESIGN WAS TO BRING INDUSTRIAL WORKERS UNDER ITS
PROTECTIONS AND TO ELIMINATE AS RAPIDLY AS POSSIBLE THE SUBSTANDARD
CONDITIONS OF SUCH LABOR.  BUT THIS WAS TO BE DONE WITH AN EYE ALSO TO
TWO OTHER MATTERS:  ONE, THAT BY TOO RAPID ADVANCE EMPLOYMENT BE NOT
CURTAILED; AND, TWO, THAT COMPETITIVE CONDITIONS IN THE AFFECTED
INDUSTRIES BE NOT UNDULY DISTURBED OR COMPETITIVE ADVANTAGES CREATED. 
CF. SEC. 2. 

THESE PURPOSES WERE INESCAPABLY PERTINENT TO THE PROBLEMS OF
EXEMPTION ARISING UNDER SEC. 13(A)(10).  THEY WERE LIKEWISE PERTINENT
TO OTHER EXEMPTIONS, CF. SEC. 7(C) AND COMPARE SEC. 7(B), AND TO STILL
OTHER DELEGATIONS THE STATUTE CONFIDED TO THE ADMINISTRATOR.  THAT
CONGRESS DID NOT BURDEN THE BOOKS WITH "AN ITEMIZED CATALOGUE"  FN11
OF STANDARDS IN EACH INSTANCE OF DELEGATION, GIVES NO BASIS FOR
BELIEVING THAT WHAT PERMEATED ALL ELSE FOUND THESE PARTS INSULATED. 
THE ADMINISTRATOR CLEARLY HAD POWER, AND MORE, THE DUTY, TO TAKE
ACCOUNT OF THESE FACTORS. 

IF SO, HE COULD NOT ESCAPE THE QUESTION OF SIZE.  AND INDEED THE
COURT DOES NOT DENY THIS.  SIZE CERTAINLY IS NOT IRRELEVANT TO
DISTINGUISH WITHIN ANY GROUP WHICH MAY DO ESSENTIALLY THE SAME WORK IN
TWO DIFFERENT WAYS, ONE THE FARMING WAY, THE OTHER THE INDUSTRIAL ONE. 
IT IS NOT IRRELEVANT TO ECONOMIC DISLOCATIONS OR TO CURTAILMENTS OF
EMPLOYMENT.  AND IT IS RELEVANT TO THESE THINGS AS MUCH WITHIN AS
WITHOUT AN AREA OF PRODUCTION.  FN12 

THE LEGISLATIVE HISTORY DISCLOSES ONE OBJECT OF THE EXEMPTION AS
ORIGINALLY PROPOSED WAS TO PROTECT SMALL FARMERS, WHO ARE UNABLE TO
PERFORM THESE OPERATIONS AT THE FARM AND THEREFORE ARE DEPENDENT UPON
WHATEVER NEARBY ESTABLISHMENTS MAY EXIST, WHETHER LARGE OR SMALL. 
VARIOUS MEMBERS OF THE SENATE AND OF THE HOUSE SPONSORED AMENDMENTS FOR
THIS PURPOSE.  FN13  AS THE BILLS WENT TO CONFERENCE EACH CONTAINED
FLAT EXEMPTIONS, SUBSTANTIALLY COVERING THE ACTIVITIES NOW SPECIFIED IN
SEC. 13(A)(10).  BUT THE DEBATES IN BOTH HOUSES SHOW THAT EVEN THE
SPONSORS OF THE VARIOUS AMENDMENTS DIFFERED OR WERE DOUBTFUL CONCERNING
WHETHER THE AMENDMENTS WOULD GIVE EXEMPTION TO LARGE PLANTS.  FN14
THERE WAS GENERAL AGREEMENT THAT SMALL ONES SHOULD BE RELIEVED FROM
COVERAGE.  FN15  SENATOR REYNOLDS WENT FURTHER AND PROPOSED SEVERAL
AMENDMENTS TO RELIEVE ALL SMALL PLANTS FROM THE ACT'S PROVISIONS, NOT
MERELY THOSE ENGAGED IN THE LIMITED OPERATIONS SPECIFIED IN THE BILLS
OR SEC. 13(A)(10).  THESE WERE DEFEATED.  FN16  AND THERE WAS VIGOROUS
DEMAND, FROM THE SPONSOR OF THE BILL IN THE SENATE AND OTHERS,  FN17
FOR RESTRICTING THE SCOPE OF THE AMENDING EXEMPTIONS TO SMALL PLANTS. 
THESE DIFFERENCES WERE NOT SETTLED ON THE FLOOR OF EITHER HOUSE.  BUT
WHEN THE BILLS CAME TO CONFERENCE, THEY WERE RESOLVED BY CHANGING THE
FLAT EXEMPTIONS INTO DISCRETIONARY ONES TO BE DEFINED BY THE
ADMINISTRATOR. 

SINCE THE DELEGATION FEATURE DID NOT APPEAR UNTIL THE CONFERENCE
REPORT AND THERE IS LITTLE IN THAT REPORT OR IN THE DEBATES UPON IT TO
ADD LIGHT, THE PREVIOUS DISCUSSIONS ARE WHOLLY INCONCLUSIVE, EXCEPT IN
ONE RESPECT.  THIS WAS TO SHOW THAT THERE WAS GREAT VARIETY AND
COMPLEXITY OF OPINION, AND THAT THIS REVOLVED AROUND THE QUESTION OF
SIZE.  THAT QUESTION CONTINUED UNRESOLVED UP TO CONFERENCE AND WAS
RESOLVED THERE, NOT BY DECISION EITHER WAY, BUT BY REFERENCE TO THE
ADMINISTRATOR.  IT MUST BE TAKEN THEREFORE THAT THE PURPOSE WAS TO GIVE
HIM DISCRETION TO MAKE THE NECESSARY CHOICES BETWEEN THE CONFLICTING
VIEWPOINTS AS THE FACTS OF PARTICULAR SITUATIONS WOULD GIVE OCCASION
FOR DOING.  AND, IT WOULD SEEM, THE PREPONDERANCE OF SENTIMENT IN FAVOR
OF EXEMPTING SMALL PLANTS, BUT NOT LARGE ONES, EXCEPT IN OCCASIONAL
INSTANCES WHERE THIS WOULD BE NECESSARY TO PROTECT THE SMALL FARMER,
WELL COULD BE TAKEN AS HIS GUIDING LIGHT.  THE LEGISLATIVE HISTORY,
THEREFORE, IN SO FAR AS IT SHEDS LIGHT AT ALL, CLEARLY IS NOT
INCONSISTENT WITH WHAT THE ADMINISTRATOR HAS DONE, BUT ON THE CONTRARY
SUPPORTS IT. 

THE COURT DOES NOT FIND THE ADMINISTRATOR ACTED IMPROPERLY BY TAKING
THESE CONSIDERATIONS INTO ACCOUNT.  HE ONLY MUST NOT STATE THEM IN HIS
DEFINITION.  AND THIS MATTER OF MERE FORMULATION IS THE CRUX OF THE
CASE.  THE DEFINITION MUST BE MADE "IN RELATION TO THE COMPLICATED
ECONOMIC FACTORS THAT OPERATE BETWEEN AGRICULTURAL LABOR CONDITIONS AND
THE LABOR MARKET OF ENTERPRISES CONCERNED WITH AGRICULTURAL COMMODITIES
AND MORE OR LESS NEAR THEIR PRODUCTION."  THE ADMINISTRATOR IS GIVEN
"APPROPRIATE DISCRETION TO ASSESS ALL THE FACTORS RELEVANT TO THE
SUBJECT MATTER," WHICH IS ESSENTIALLY ONE OF "ECONOMIC DETERMINATION,"
TOO COMPLEX FOR LITIGATION TO SOLVE.  HE "MAY PROPERLY WEIGH AND
SYNTHESIZE ALL SUCH FACTORS." 

IN MAKING HIS ECONOMIC SYNTHESIS, HOWEVER, THE ADMINISTRATOR MUST
STATE HIS RESULTS ONLY IN SURVEYOR'S TERMS.  CONGRESS, WHEN IT GRANTED
THE EXEMPTION, "RESTRICTED THE ADMINISTRATOR TO THE DRAWING OF
GEOGRAPHIC LINES, EVEN THOUGH HE MAY TAKE INTO ACCOUNT ALL RELEVANT
ECONOMIC FACTORS.  ...  "  THE "ZONE WITHIN WHICH ECONOMIC INFLUENCES
MAY BE DEEMED TO OPERATE AND OUTSIDE OF WHICH THEY LOSE THEIR FORCE"
CANNOT BE DEFINED DIRECTLY AND PURPOSIVELY TO DRAW THE LINE BETWEEN THE
ZONE OF FARMING AND THE ZONE OF INDUSTRY.  THIS MUST BE DONE ONLY
INDIRECTLY, IN AN AWKWARD, ROUNDABOUT WAY. 

NOTHING PREVENTS THE ADMINISTRATOR FROM DRAWING THE LINES AS HE
THINKS BEST, UNLESS THE SUGGESTION OF THE SPECIALLY CONCURRING OPINION
IS FOLLOWED THAT THEY MUST BE DRAWN IN REGULAR CIRCLES OR SQUARES.  THE
COURTS HAVE NO BUSINESS TO TELL HIM WHERE TO PUT THEM.  HE CAN DEFINE
DISTANCE BY AIR LINES OR BY ROAD LINES TO MARKET.  HE CAN RUN THE LINES
AROUND BIG TOWNS, BUT NOT AROUND BIG FACTORIES.  BALTIMORE COULD BE
EXCLUDED, BUT NOT MARTIN'S BOMBER PLANT OR ONE LIKE IT, IN SIZE AND
METHODS, FOR PROCESSING OR CANNING FRUITS AND VEGETABLES.  TOWNS MAY GO
OUT, THOUGH SURROUNDED BY TRUCK FARMS, BUT NOT COMMERCIAL CANNERIES. 
RESIDENCES, APPARENTLY, MUST SURROUND THE CANNERY.  IN SHORT, THE
ADMINISTRATOR CAN DRAW WHATEVER MAP LINES HE THINKS WILL ACHIEVE THE
APPROPRIATE ECONOMIC ADJUSTMENTS, EXCEPT ONE WHICH LEAVES OUT PERHAPS
THE BIGGEST CANNING FACTORY OF ALL, AND NO COURT CAN INTERFERE.  I DO
NOT BELIEVE THAT CONGRESS, WHEN IT GAVE THE ADMINISTRATOR HIS
COMPLICATED TASK AND AUTHORIZED HIM TO CONSIDER ALL THE RELEVANT AND
COMPLEX ECONOMIC FACTORS, NOT ONLY DENIED HIM THE POWER TO EXECUTE
THOSE CONSIDERATIONS IN HIS ACTION, BUT COMPELLED HIM TO FRUSTRATE THEM
IN DEFINING "AREA OF PRODUCTION."  THE COURT DOES NOT DENY THE
ADMINISTRATOR MAY CONSIDER THE SIZE OF THE PLANT, AND MAKE THIS EVEN
THE CRUCIAL FACTOR IN HIS DECISION.  YET IT WOULD ONLY IMPEDE OR DEFEAT
HIS JUDGMENT, FORMED ON PROPER CONSIDERATIONS, AS WELL AS THE STATUTE'S
PURPOSES, TO REQUIRE HIM TO STATE THE EXEMPTION, NOT SIMPLY IN THE
TERMS BEST CHOSEN TO EXPRESS HIS MEANING CLEARLY AND DEFINITELY, BUT IN
OTHERS COUCHED IN PURE THOUGH TORTURED GEOGRAPHY.  ACCORDING TO HIS
EXPERIENCE AND CONFIRMED JUDGMENT, SHARED BY SUCCESSIVE ADMINISTRATORS
AND NEVER REVERSED OR MODIFIED, TO REQUIRE THE LATTER METHOD OF
FORMULATION WOULD MAKE HIS TASK WELL NIGH IMPOSSIBLE OR, IF NOT THAT,
INCAPABLE OF BEING DISCHARGED WITHOUT DOING VIOLENCE TO THE ACT'S MAJOR
PURPOSES AND STANDARDS.  FN18 

SO MUCH OF AUTHORITY AND POWER TO DEFEAT THE STATUTE'S INTENDED
OPERATION CANNOT BE GIVEN TO MERE VERBALISM, MORE ESPECIALLY TO ONE
WORD, TORN IN CONTEXT, FUNCTION AND PURPOSE FROM THE REMAINDER OF THE
ACT.  "AREA," IT IS TRUE, MEANS AREA.  BUT "AREA OF PRODUCTION" MEANS
MORE.  "THE NOTION THAT BECAUSE THE WORDS OF A STATUTE ARE PLAIN, ITS
MEANING IS ALSO PLAIN, IS MERELY PERNICIOUS OVERSIMPLIFICATION.  IT IS
A WOODEN ENGLISH DOCTRINE OF RATHER RECENT VINTAGE  ...  TO WHICH LIP
SERVICE HAS ON OCCASION BEEN GIVEN HERE, BUT WHICH SINCE THE DAYS OF
MARSHALL THIS COURT HAS REJECTED, ESPECIALLY IN PRACTICE.  ...  A
STATUTE, LIKE OTHER LIVING ORGANISMS, DERIVES SIGNIFICANCE AND
SUSTENANCE FROM ITS ENVIRONMENT, FROM WHICH IT CANNOT BE SEVERED
WITHOUT BEING MUTILATED."  FN19  AND SO DOES A SECTION IN A STATUTE. 
"AREA OF PRODUCTION" AS USED IN SEC. 13(A)(10) MEANS AN EXEMPTION,
LIMITED TO PERSONS PERFORMING THE SPECIFIED OPERATIONS WITHIN A
PRODUCING REGION, BUT SELECTED FROM ALL SO SITUATED BY AN EXERCISE OF
THE ADMINISTRATOR'S JUDGMENT IN ACCORDANCE WITH THE STATUTE'S PRIME
OBJECTS AND CHIEF LIMITATIONS, AMONG WHICH NECESSARILY IS THE SIZE OF
THE PLANT.  IF THAT IS SO, I SEE NO GOOD REASON FOR FORBIDDING THE
ADMINISTRATOR TO SAY SO. 

IT FOLLOWS THE ADMINISTRATOR HAS NOT IMPROPERLY EXERCISED HIS
FUNCTION, THE DEFINITIONS ARE VALID, AND RESPONDENT'S EMPLOYEES WERE
NOT EXEMPT FROM THE STATUTE'S PROVISIONS. 

              II. 

BUT IF THE DEFINITIONS WERE INVALID, AS THE COURT HOLDS, I COULD NOT
AGREE TO THE EXTREMELY NOVEL DISPOSITION IT MAKES OF THE CASE.  WE ARE
DEALING WITH AN EXEMPTION, NOT WITH THE STATUTE'S PRIMARY COVERAGE. 
CONCEDEDLY THE RESPONDENT EMPLOYER WAS LIABLE TO PETITIONERS FOR THE
MINIMUM WAGES, OVERTIME PAY AND STATUTORY PENALTIES UNDER SEC. 16(B),
IF THEY WERE NOT EXEMPT UNDER SEC. 13(A)(10) OR SOME OTHER EXEMPTION. 
ORDINARILY EXEMPTIONS ARE NOT FAVORED.  COVERAGE, NOT EXEMPTION, IS
PREFERRED.  IF THE EXEMPTION IS DUBIOUS, IT IS NOT GIVEN EFFECT.  IF
AMBIGUOUS, IT IS RESOLVED STRICTLY IN FAVOR OF THE STATUTE'S
APPLICATION.  SPOKANE & INLAND EMPIRE R. CO. V. UNITED STATES, 241 U.S.
344; PIEDMONT & NORTHERN RY. CO. V. INTERSTATE COMMERCE COMMISSION, 286
U.S. 299, 311-312; MCDONALD V. THOMPSON, 305 U.S. 263.  IN THIS CASE,
IF THE EXEMPTION DOES NOT APPLY, THE PETITIONERS ARE WITHIN THE STATUTE
AND RESPONDENT IS LIABLE ON THEIR CLAIMS. 

TO ESCAPE LIABILITY, RESPONDENT HAS THE BURDEN OF SHOWING THE
EXEMPTION DOES APPLY.  BUT TO DO THIS IT CANNOT MERELY SHOW THE
DEFINITION OF THE ADMINISTRATOR IS INVALID.  THAT WOULD ONLY LEAVE
ITSELF AND THE PETITIONING EMPLOYEES SUBJECT TO THE ACT'S PROVISIONS,
WHICH REQUIRE THE PAYMENT OF THE CLAIMS.  RESPONDENT'S DILEMMA
THEREFORE IS BOTH SHARP AND REAL.  IF THE DEFINITION IS VALID, IT DOES
NOT COVER THESE EMPLOYEES AND RESPONDENT IS LIABLE TO THEM.  IF THE
DEFINITION IS INVALID, CLEARLY IT EXEMPTS NO ONE, PETITIONERS ARE
COVERED BY THE ACT, AND THE RESPONDENT MUST PAY.  THIS IS TRUE WHETHER
THE REASON DICTATING INVALIDITY IS WANT OF STANDARDS, APPLICATION OF
THE WRONG ONES, OR MERELY FORMULATING THE RESULT IN THE WRONG WAY. 
THIS DILEMMA PRESENTS THE ALTERNATIVE WHICH RESPONDENT, THE COURT OF
APPEALS AND THIS COURT HAVE ATTEMPTED TO AVOID IN ORDER, SO IT IS SAID,
TO ESCAPE AN "EITHER-OR" CONCLUSION, WHICH IS THE KIND THE LAW ALMOST
ALWAYS MUST MAKE.  IT IS ONE FROM WHICH THERE IS NO ESCAPE WITHOUT
EXERCISE OF INVENTIVE GENIUS BEYOND THE RIGHT OF EITHER COURT TO APPLY
AND WHICH, AS APPLIED HERE, MAKES THE CURE WORSE THAN THE DISEASE. 
RESPONDENT'S INVENTION, AND LIKEWISE THE COURT OF APPEALS', WAS TO
STRIKE THE LIMITATION ON THE NUMBER OF EMPLOYEES AND APPLY THE
REMAINDER OF THE DEFINITION.  THIS BUT EMASCULATES IT.  HENCE ALL HERE,
BUT ONE, ARE AGREED SUCH LIBERTY CANNOT BE TAKEN WITH THE
ADMINISTRATOR'S FUNCTION.  THIS COURT'S INVENTION, HOWEVER, DOES IT
EQUAL OR GREATER VIOLENCE, FIRST, AS I THINK, IN EMASCULATING IT;
SECOND, AND LACKING EVEN MORE IN JUSTIFICATION, IN REQUIRING IT TO BE
EXERCISED WITH BACKWARD-REACHING EFFECT. 

IF THE COURT HAD SOUGHT ITS ESCAPE IN FINDING THAT THERE WERE NO
STANDARDS TO CONTROL THE ADMINISTRATOR'S DISCRETION OR THAT HE HAD
APPLIED THE WRONG STANDARDS, ONE MIGHT UNDERSTAND ITS REFUSAL TO
SUSTAIN THE DEFINITION.  BUT THAT TOO WOULD MEAN THAT PETITIONERS WOULD
RECOVER.  THE COURT DOES NEITHER.  THERE IS NO CLAIM, EXCEPT A
SEMBLANCE OF SUGGESTION IN A SEPARATE OPINION, THAT THE STATUTE
SUPPLIES NO STANDARDS AND THEREFORE GIVES THE ADMINISTRATOR "A ROVING
COMMISSION TO CREATE EXEMPTIONS."  NOR IS THERE ONE THAT THE WRONG
STANDARDS WERE USED.  THE INVENTION IS CALLED FORTH ONLY TO CORRECT A
MODE OF STATEMENT. 

IF THAT WERE ALL, THERE WOULD NOT BE MUCH ROOM TO COMPLAIN.  BUT, IN
ADDITION TO COMPELLING THE ADMINISTRATOR TO MAKE THE DEFINITION IN A
MANNER WHICH FRUSTRATES HIS FUNCTION AND THE STATUTE'S OBJECTIVES, OR
ONLY PARTLY FULFILLS THEM, THE DECISION OPENS THE DOOR TO A GENERAL
EXPANSION OF THE NOVEL, AND I THINK UNAUTHORIZED, PRACTICE OF
RETROACTIVE ADMINISTRATIVE DETERMINATION OF PRIVATE RIGHTS.  THAT IS
TRUE, UNLESS THESE PETITIONERS ARE TO BE SPECIALLY TREATED, ALTHOUGH
LESS THAN A MAJORITY OF THE COURT AGREE THAT THE AUTHORITIES CITED TO
SUSTAIN IT JUSTIFY THE PROCEDURE OUTLINED.  BUT IF THE PROCEDURE IS
JUSTIFIED IN THIS CASE, IT IS IN ANY OTHER WHERE AN ADMINISTRATOR
MISTAKENLY INCLUDES IN A REGULATION A FACTOR LATER HELD TO MAKE IT
INVALID.  NO REASON STATED MAKES THIS CASE A SPECIAL ONE.  AND THERE IS
NONE.  IT CANNOT BE TAKEN THAT THESE PARTIES ARE TO BE SINGLED OUT FOR
UNIQUE TREATMENT, MERELY IN ORDER TO AVOID THE NORMAL LEGAL
CONSEQUENCES OF INVALIDATING ADMINISTRATIVE ACTION.  HENCE, EVERY
INTEREST AFFECTED BY SUCH ACTION NOW MUST TAKE TWO RISKS IN PLACE OF
ONE:  FIRST, THE NORMAL, INESCAPABLE RISK THAT THE GOVERNING REGULATION
MAY BE HELD INVALID; SECOND, IN THAT EVENT, THE NOVEL ONE THAT SOME
FUTURE REGULATION, A WHOLLY UNKNOWN QUANTITY, WILL RELATE BACK OVER AN
INDEFINITE TIME TO CREATE ENTIRELY NEW OR DIFFERENT AND UNEXPECTED
RIGHTS AND LIABILITIES. 

OF COURSE THERE MUST BE ROOM FOR CREATIVE ANALOGIES IN THE LAW TO
GIVE THE DESIRED ESCAPE FROM MECHANICAL CONCEPTS AND PERMIT SHAPING ITS
REMEDIES.  BUT WE ARE AS OFTEN TOLD THAT CONGRESS SHOULD PERFORM THE
CREATIVE ACT IN CONGRESS' FIELD.  THIS SHOULD BE MOST TRUE WHERE WHAT
WE ARE CALLED UPON TO RECREATE IS CONGRESS' OWN HANDIWORK.  IF CONGRESS
INTENDED THE ADMINISTRATOR TO ACT RETROACTIVELY, CONGRESS WHOLLY FAILED
TO EXPRESS THIS PURPOSE. 

MOREOVER, IT IS NOT REMEDIES BUT RIGHTS WHICH ARE THUS REFASHIONED. 
AND NOT EQUITY BUT LAW REMOLDS THEM.  WHO KNOWS, BEFORE THE
REDEFINITION, WHAT PERSONS MAY BE INCLUDED IN ITS COVERAGE?  OR WHETHER
IT MAY NOT HAVE TO BE MADE AGAIN?  THE SAME PERSONS CANNOT BE
INCLUDED.  OTHERWISE THERE WOULD BE NO POINT TO THIS DECISION.  IF THE
ADMINISTRATOR CAN REPHRASE THE SAME COVERAGE IN WHOLLY GEOGRAPHIC
TERMS, APART FROM DELAY THE ONLY RESULT WILL BE TO HAVE CRITICIZED HIS
LANGUAGE.  IF HE CANNOT DO THIS SOME PERSONS, AND NO ONE CAN TELL IN
ADVANCE HOW MANY, WILL BE DEPRIVED ALTOGETHER OF RIGHTS, OTHERS GIVEN
THEM WHO HAD NONE.  SO WITH LIABILITIES. 

THE INNOVATION WOULD BE SERIOUS IF CONFINED TO THIS CASE OR THIS
ACT.  IT IS BEYOND PREDICTION WHAT THE CONSEQUENCES MAY BE, OF
UNCERTAINTY, OR HARDSHIP, OF INJUSTICE IN DEPRIVATION OF RIGHTS, IN
WINDFALLS OF RIGHT TO OTHERS, IN LAYING ON NEW AND WHOLLY UNEXPECTED
LIABILITIES AND IN RELIEVING FROM ANTICIPATED ONES, IF RETROACTIVE
ADMINISTRATIVE REFASHIONING BECOMES THE GENERAL PRACTICE.  THE
ALTERNATIVE, EITHER TO SUSTAIN OR TO HOLD VOID THE REGULATION, AND FIX
THE RIGHTS ACCORDINGLY, IS NOT ONLY THE ACCEPTED AND ESTABLISHED ONE. 
IT IS THE ONLY ONE BY WHICH MEN CAN KNOW THE RISKS THEY ASSUME AT THE
TIME THEY BECOME SUBJECT TO THEM. 

RETROACTIVITY IS NOT FAVORED IN LAW.  FOR THIS THERE ARE SOUND
REASONS, IN SOME CASES CONSTITUTIONAL ONES.  CF. FORBES PIONEER BOAT
LINE V. BOARD OF COMMISSIONERS, 258 U.S. 338; OCHOA V. HERNANDEZ Y
MORALES, 230 U.S. 139.  THERE ARE FEW OCCASIONS WHEN RETROACTIVITY DOES
NOT WORK MORE UNFAIRLY THAN FAIRLY.  CONGRESS, THE STATE LEGISLATURES
AND THE COURTS APPLY THE PRINCIPLE SPARINGLY, EVEN WHERE THEY MAY.  CF.
GRAHAM & FOSTER V. GOODCELL, 282 U.S. 409; UNITED STATES V. HEINSZEN &
CO., 206 U.S. 370.  SELDOM IF EVER THEREFORE MAY ADMINISTRATIVE OR
EXECUTIVE AUTHORITY TO APPLY IT BE INFERRED FROM LEGISLATION NOT
EXPRESSLY GIVING IT.  COMPARE ARIZONA GROCERY CO. V. ATCHISON, T. &
S.F. RY. CO., 284 U.S. 370; HELVERING V. R.J. REYNOLDS TOBACCO CO., 306
U.S. 110.  BUT, IN ANY EVENT, WHATEVER CORRECTIVE NEEDS MAY PROMPT AND
VINDICATE A GRANT OF SUCH AUTHORITY IN OTHER CIRCUMSTANCES ARE NOT
PRESENT IN THIS APPLICATION.  YET, IF THIS DECISION IS TO MARK THE
BEGINNING OF A GENERAL PATTERN, SUCH AUTHORITY NOW BIDS FAIR TO BECOME
A COMMON CHARACTERISTIC OF ADMINISTRATIVE ACTION. 

THE ADMINISTRATIVE PROCESS HAS INCREASINGLY IMPORTANT FUNCTIONS IN
OUR LEGAL SYSTEM.  ORDINARILY IT DOES ENOUGH IF IT TAKES CARE OF TODAY
AND TOMORROW.  WHEN IT BEGINS TO ADD YESTERDAY, WITHOUT CLEAR
CONGRESSIONAL MANDATE, THE BURDEN MAY BECOME TOO GREAT.  IN ANY EVENT,
THAT HAS NOT HERETOFORE GENERALLY BEEN CONSIDERED ITS TASK.  IF THAT
TASK IS TO BE ADDED, THE ADDITION SHOULD BE MADE BY THE BODY WHENCE
ADMINISTRATIVE POWER IS DERIVED, NOT BY THIS COURT'S IMAGINATIVE
RESOURCEFULNESS. 

FINALLY, RESPONDENT HAS NOT ASKED FOR THIS RETROACTIVE "RELIEF."  AND
THIS MAY BE FOR ENTIRELY GOOD REASONS OF ITS OWN.  WHAT RESPONDENT
SOUGHT IN THE DISTRICT COURT, WHAT IT SECURED IN THE COURT OF APPEALS,
AND WHAT IT HAS SOUGHT HERE, BUT CLEARLY IS NOT ENTITLED TO HAVE, IS A
JUDICIAL DECLARATION THAT, AS A MATTER OF LAW, ITS EMPLOYEES WOULD HAVE
BEEN EXEMPT UNDER ANY VALID DEFINITION THE ADMINISTRATOR MIGHT HAVE
ADOPTED.  IN EFFECT, THIS IS A CLAIM OF EXEMPTION BY THE STATUTE
ITSELF, ONE WHICH WOULD NULLIFY THE ADMINISTRATOR'S POWER.  RELIEF NOT
SOUGHT SHOULD NOT BE FORCED ON RESPONDENT BY AN EXERCISE OF THIS
COURT'S INVENTIVE GENIUS.  MORE ESPECIALLY SHOULD THIS NOT BE DONE ON
THE COURT'S OWN MOTION, WITHOUT ANY OF THE PARTIES HAVING HAD AN
OPPORTUNITY TO CONSIDER OR DISCUSS IT IN THE BRIEFS OR IN ARGUMENT. 
UNDER SUCH A POLICY, GENERALLY FOLLOWED, A LITIGANT NEVER CAN KNOW WITH
WHAT KIND OF GIFT HORSE HE MAY COME OUT, EVEN IF SUCCESSFUL.  AND IN
THIS CASE THE PARTIES HAVE FACED THE DOUBLE UNCERTAINTY, WHOLLY
UNANTICIPATED, OF CREATION HERE AND RE-CREATION BY THE ADMINISTRATOR,
WHEN THE LATTER UNDERTAKES RELIEVING THE DISTRICT COURT OF THE DUTY TO
AWAIT HIS FURTHER ACTION.  FN20 

THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE REVERSED AND THE CAUSE
SHOULD BE REMANDED TO THAT COURT FOR DETERMINATION OF THE OTHER ISSUES
IN THE CASE.  FN21 

MR. JUSTICE DOUGLAS JOINS IN THAT PART OF THIS DISSENT WHICH WOULD
HOLD THAT THE ADMINISTRATOR HAS DEFINED "AREA OF PRODUCTION" IN A VALID
MANNER. 

FN1  PROMULGATED OCTOBER 20, 1938, EFFECTIVE FOUR DAYS LATER.  3 FED.
REG. 2536. 

FN2  SEE HEARINGS ON PROPOSED AMENDMENT OF SECTION 536.2(AREA OF
PRODUCTION) OF REGULATIONS ISSUED UNDER THE FAIR LABOR STANDARDS ACT OF
1938, WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR REF. NOS. 54; 73;
162A; 162B; 162C. 

FN3  TESTS PROPOSED AND CONSIDERED INCLUDED:  THE MAPPING OF
PRODUCING TERRITORIES; A FLAT MILEAGE-POPULATION DEFINITION; A "FIRST
CONCENTRATION POINT" CRITERION; A STANDARD WHICH WOULD INCLUDE ONLY
ESTABLISHMENTS WHICH HANDLED AND PREPARED FOR THE ACCOUNT OF THE FARMER
COMMODITIES TO WHICH HE RETAINED TITLE.  ALL THESE AND OTHERS WERE
REJECTED BY SUCCESSIVE ADMINISTRATORS, AFTER BEING URGED AND OPPOSED BY
INDUSTRY REPRESENTATIVES, AS PRESENTING INSUPERABLE OBSTACLES TO
CARRYING OUT THE STATUTE'S MAJOR POLICIES. 

FN4  COMPARE THE DEFINITION PROMULGATED OCTOBER 20, 1938, 3 FED. REG.
2536, WITH THE AMENDMENTS OF APRIL 20, 1939, 4 FED. REG. 1655; JUNE 17,
1939, 4 FED. REG. 2436; OCTOBER 1, 1940, 5 FED. REG. 2647; AND APRIL 1,
1941, 6 FED. REG. 1476. 

FN5  CF. DEPARTMENT OF LABOR RELEASE R. -226, MARCH 18, 1939; G. -60,
JULY 24, 1940. 

FN6  A FLAT MILEAGE DEFINITION WAS IN FORCE DURING PART OF THE TIME
MATERIAL IN THIS CASE, BUT WAS ABANDONED AFTER ITS EFFECTS, BY WAY OF
CREATING SERIOUS UNFAIR DISCRIMINATION BETWEEN COMPETING ESTABLISHMENTS
AND NARROWING GROCERS' OUTLETS, BECAME EVIDENT.  CF. DEPARTMENT OF
LABOR RELEASE G. -60, JULY 24, 1940. 

FN7  CF. FARM AND RANCH SCHEDULES, U.S. CENSUS OF AGRICULTURE, 16TH
CENSUS OF THE UNITED STATES, 1940. 

FN8  AS THE LEGISLATIVE HISTORY SHOWS, CF. TEXT INFRA AT NOTES 13-16,
THERE WAS FAIRLY GENERAL AGREEMENT THAT SOME PART OF THE WORK SPECIFIED
IN SEC. 13(A)(10) SHOULD BE EXEMPT, WHETHER OR NOT IT WAS DONE ON THE
FARM.  BUT BEYOND THIS, A GREAT VARIETY OF OPINION EXISTED BOTH AS TO
HOW FAR THE EXEMPTION SHOULD GO AND AS TO THE ECONOMIC BASIS FOR IT.
AMONG THE LATTER WERE VIEWS THAT THE EXEMPTION SHOULD BE MADE BECAUSE
THE FARMER BORE THE COST OF THE WORK, CF. 81 CONG. REC. 7656, 7877,
7880; OR BECAUSE MANY FARMERS IN FACT PERFORMED IT ON THEIR FARMS AND
AS PART OF THEIR OPERATIONS, CF. SEC. 3(F), 52 STAT. 1060; 81 CONG.
REC. 7657-7659; OR BECAUSE OTHERS WHO HAD TO RESORT TO INDEPENDENT
CONTRACTORS TO HAVE IT DONE WOULD BE DISCRIMINATED AGAINST UNLESS THE
WORK WERE EXEMPT; CF. 81 CONG. REC. 7656, 7658-7660, 7876.  SOME
LEGISLATORS WERE CONCERNED TO HAVE THE EXEMPTION APPLY WHETHER THE WORK
WERE DONE IN LARGE OR SMALL PLANTS; OTHERS TO LIMIT IT TO SMALL ONES
ONLY; AND STILL OTHERS TO SECURE IT COMPLETELY FOR PARTICULAR CROPS. 
NUMEROUS AMENDMENTS WERE TENDERED, BUT FOR THE MOST PART DEFEATED.  IT
WAS NOT UNTIL THE CONFERENCE COMMITTEE'S REPORT WAS FRAMED THAT THE
PROBLEM WAS SOLVED BY REFERRING IT TO DEFINITION BY THE ADMINISTRATOR. 
BUT EVEN PROPONENTS OF THE AMENDMENTS WHICH WERE ADOPTED RECOGNIZED
THAT THE PROBLEM WAS ONE WHICH "THE BOARD ...  WOULD HAVE TO DECIDE,"
81 CONG. REC. 7878, "SOMETHING THAT WOULD HAVE TO BE WORKED OUT," 83
CONG. REC. 7401. 

FN9  SECTION 2(A).  THESE CONDITIONS CONGRESS FOUND BURDEN COMMERCE,
LEAD TO LABOR DISPUTES OBSTRUCTING IT, INTERFERE WITH FAIR AND ORDERLY
MARKETING, AND SPREAD THEMSELVES BY CAUSING THE CHANNELS OF COMMERCE TO
BE USED FOR MARKETING AMONG THE SEVERAL STATES THE GOODS PRODUCED UNDER
THEM.  IBID. 

FN10  "'INDUSTRY' MEANS A TRADE, BUSINESS, INDUSTRY  ...  IN WHICH
INDIVIDUALS ARE GAINFULLY EMPLOYED."  SEC. 3(H).  "'AGRICULTURE'
INCLUDES FARMING IN ALL ITS BRANCHES  ...  AND ANY PRACTICES (INCLUDING
ANY FORESTRY OR LUMBERING OPERATIONS) PERFORMED BY A FARMER OR ON A
FARM AS AN INCIDENT TO OR IN CONJUNCTION WITH SUCH FARMING OPERATIONS,
INCLUDING PREPARATION FOR MARKET, DELIVERY TO STORAGE OR TO MARKET OR
TO CARRIERS FOR TRANSPORTATION TO MARKET."  SEC. 3(F).  SECTION 5
PROVIDES FOR INDUSTRY COMMITTEES AND THEIR FUNCTIONING, TO WHICH THE
ADMINISTRATOR SUBMITS DATA AND FROM WHICH HE RECEIVES RECOMMENDATIONS
AND REPORTS WHICH HE MUST APPROVE BEFORE MAKING THEM EFFECTIVE IN THE
FORM OF MINIMUM WAGE RATES AND INDUSTRY CLASSIFICATIONS.  CF. SEC. 8. 

FN11  NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190, 219. 

FN12 RESPONDENT, HOWEVER, CONSISTENTLY WITH ITS "FACT-FINDER" OR
"SURVEYOR" THEORY OF THE ADMINISTRATOR'S FUNCTION, SAYS THE PURPOSE WAS
NOT TO DISTINGUISH, WITHIN THE SPECIFIED ACTIVITIES, BETWEEN FARMERS
AND INDUSTRIAL WORKERS; IT WAS RATHER TO GO A STEP FURTHER AND EXEMPT
THE LATTER AS WELL, PROVIDED ONLY THEY WERE WITHIN AN AREA OF
PRODUCTION AS RESPONDENT CONCEIVES IT.  THAT THE ADMINISTRATOR MAY
EXEMPT SOME, OR PERHAPS MANY, WHO ARE IN FACT INDUSTRIAL WORKERS,
BECAUSE THEY ARE DOING THESE ACTIVITIES UNDER FACTORY CONDITIONS AND
METHODS, MAY BE CONCEDED.  THAT HE MUST EXEMPT ALL OF THEM, OR SOME
LARGER NUMBER THAN HIS JUDGMENT, FORMED AFTER CONSIDERING THE FACTS,
THE STATUTE'S POLICIES, AND THE EFFECTS OF WHAT HE MAY DO, FINDS
PROPER, CANNOT BE ACCEPTED.  RESPONDENT CLAIMS AN EXEMPTION FIXED BY
THE ACT.  THE STATUTE HAS GIVEN IT ONE ONLY WHEN, IN THE
ADMINISTRATOR'S JUDGMENT, NOT ARBITRARILY FORMED, IT MEETS THE
CONDITIONS WHICH HE FINDS WILL EXECUTE THE LEGISLATIVE POLICY. 

FN13  THE SENATE'S FIRST SUGGESTION OF "AREA OF PRODUCTION" CAME FROM
SENATOR COPELAND, 81 CONG. REC. 7656, ALTHOUGH SENATOR SCHWELLENBACH
BECAME THE CHIEF PROPONENT OF THE CONCEPT THERE.  SENATOR BLACK,
SPONSOR OF THE BILL, WAS CONCERNED WITH THE SCOPE OF "AREA" AND SOUGHT
A MORE ACCURATE TERM FOR LIMITING ITS EFFECT SO AS NOT TO EXEMPT
WORKERS IN LARGE PLANTS, CF. 81 CONG. REC. 7656-7660, 7876-7878, AND
OTHERS EXPRESSED OPINIONS THAT LARGE OPERATORS SHOULD NOT BE EXEMPTED. 
FOR PORTIONS OF THE DISCUSSION ON THE SENATE FLOOR SEE ALSO 81 CONG.
REC. 7648-7673, 7876-7888, 7927-7929, 7947-7949. 

IN THE HOUSE OF REPRESENTATIVES, THE SPONSOR OF THE BILL WAS
REPRESENTATIVE NORTON.  CHIEF PROPONENT OF THE AMENDMENT INVOLVING
"AREA OF PRODUCTION" WAS REPRESENTATIVE BIERMANN.  CF. 83 CONG. REC.
7325-7326, 7401-7408. 

FN14  RESPONDING TO INQUIRY WHETHER PACKING HOUSES IN IOWA AND
ILLINOIS WOULD BE EXEMPTED BY HIS AMENDMENT, REPRESENTATIVE BIERMANN
SAID:  "SPEAKING FRANKLY, I THINK THAT IS SOMETHING THAT WOULD HAVE TO
BE WORKED OUT."  83 CONG. REC. 7401.  SENATOR SCHWELLENBACH CLEARLY
RECOGNIZED HIS AMENDMENT WOULD EXEMPT LARGE AS WELL AS SMALL PACKING
AND SIMILAR PLANTS, 81 CONG. REC. 7877, 7878, BUT EXPRESSED THE OPINION
THERE WOULD NOT BE "ANY LARGE OR ENORMOUS PLANTS" IN THE SPECIFIED
OPERATIONS.  IN RESPONSE TO SENATOR BLACK'S INQUIRY CONCERNING THE
INDEFINITE EFFECT OF "AREA" WITHOUT FURTHER DEFINITION, HE SAID:  "I
GAVE CONSIDERABLE THOUGHT TO THAT.  I DO NOT BELIEVE IT IS POSSIBLE,
AND THAT IS SOMETHING WHICH THE BOARD, WHICH HAS BEEN ACCUSED OF
RECEIVING TOO MUCH POWER, WOULD HAVE TO DECIDE.  IT WOULD HAVE TO
PROVIDE A DEFINITION OF 'IMMEDIATE PRODUCTION AREA.'"  CF. 81 CONG.
REC. 7876-7878.    FN15  SEE THE DISCUSSIONS CITED IN NOTES 8, 13 AND
14.    FN16  CF. 81 CONG. REC. 7948.  RESPONDENT ARGUES FROM THIS THAT
THE INTENT OF CONGRESS WAS SHOWN NOT TO AUTHORIZE THE ADMINISTRATOR, BY
THE LATER CONFERENCE AMENDMENT, TO DISTINGUISH AMONG PLANTS WITHIN THE
"AREA OF PRODUCTION" ON THE BASIS OF SIZE.  THE ARGUMENT, HOWEVER,
IGNORES THE FACT THAT THE AMENDMENTS PROPOSED BY SENATOR REYNOLDS WERE
DRAWN AND INTENDED TO EXEMPT FROM THE STATUTE'S OPERATION ALL PLANTS
HAVING FEWER THAN THE NUMBER OF EMPLOYEES (THE AMENDMENTS VARIED FROM
FIVE TO TEN IN THIS RESPECT), NOT MERELY PLANTS ENGAGED IN THE
PARTICULAR MARGINAL OPERATIONS SPECIFIED IN THE VARIOUS FORMS THE
SCHWELLENBACH AMENDMENT TOOK DURING THE DEBATE.  THE CONCLUSION TO BE
DRAWN FROM THE REJECTION OF THE REYNOLDS AMENDMENTS IS NOT THAT THE
SENATE INTENDED TO EXEMPT ALL PLANTS, LARGE AND SMALL, COVERED BY THE
SCHWELLENBACH AMENDMENT OR BY THE FORM TAKEN BY SEC. 13(A)(10) IN
CONFERENCE, BUT RATHER THAT THE SENATE WAS UNWILLING TO EXCEPT EVEN ALL
PLANTS HAVING AS FEW AS FIVE EMPLOYEES FROM THE STATUTE'S COVERAGE. 

FN17  CF. NOTES 13 AND 14, SUPRA, AND THE CITED DISCUSSIONS. 

FN18  CF. NOTES 1-6, SUPRA, AND TEXT. 

FN19  UNITED STATES V. MONIA, 317 U.S. 424, DISSENTING OPINION AT 431
432. 

FN20  THE ADMINISTRATOR IS NOT A PARTY TO THIS SUIT, BUT HAS APPEARED
AND PARTICIPATED HERE AS AMICUS CURIAE. 

FN21  IN VIEW OF ITS DISPOSITION OF THE CASE, THE COURT OF APPEALS
DID NOT CONSIDER RESPONDENT'S DEFENSES UNDER SECS. 7(B) AND 7(C) OF THE
ACT, ON BOTH OF WHICH THE DISTRICT COURT HELD FOR PETITIONERS. 
..END :


















POLISH ALLIANCE V. LABOR BOARD, 322 U.S. 643 


NO. 226.  ARGUED JANUARY 11, 12, 1944.  - DECIDED JUNE 5, 1944.  - 136
F.2D 175, AFFIRMED. 


1.  IN VIEW OF THE ACTIVITIES OF THE PETITIONER IN THE CONDUCT OF ITS
INSURANCE BUSINESS (DESCRIBED IN THE OPINION), THE NATIONAL LABOR
RELATIONS BOARD WAS JUSTIFIED IN CONCLUDING THAT THE PRACTICES IN WHICH
THE PETITIONER WAS FOUND TO BE AND TO HAVE BEEN ENGAGED WERE, WITHIN
THE MEANING OF THE NATIONAL LABOR RELATIONS ACT, UNFAIR LABOR PRACTICES
"AFFECTING COMMERCE," WHICH THE BOARD WAS EMPOWERED BY THE ACT TO
PREVENT.  PP. 644, 648. 

2.  THE CULTURAL AND FRATERNAL ASPECTS OF THE PETITIONER'S ACTIVITIES
DID NOT EXCEPT IT FROM THE OPERATION OF THE NATIONAL LABOR RELATIONS
ACT.  P. 648. 

3.  THE APPLICATION OF THE NATIONAL LABOR RELATIONS ACT TO THE
ACTIVITIES OF THE PETITIONER, THOUGH IN THE BUSINESS OF INSURANCE, WAS
A VALID EXERCISE OF THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE OF
THE FEDERAL CONSTITUTION.  P. 649. 

POLISH NATIONAL ALLIANCE OF THE UNITED STATES OF NORTH AMERICA V.
NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 320 U.S. 725, TO REVIEW A DECREE GRANTING ENFORCEMENT OF
AN ORDER (AS MODIFIED) OF THE NATIONAL LABOR RELATIONS BOARD, 42
N.L.R.B. 1375. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD, HAVING FOUND THAT PETITIONER, IN
VIOLATION OF THE NATIONAL LABOR RELATIONS ACT, HAD ENGAGED IN UNFAIR
LABOR PRACTICES, ISSUED AN ORDER OF CESSATION AGAINST IT.  42 N.L.R.B.
1375.  ON A PETITION FOR REVIEW AND A CROSS-PETITION OF THE BOARD FOR
ENFORCEMENT, THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT
SUSTAINED THE ORDER.  136 F.2D 175.  OF THE NUMEROUS ISSUES BEFORE THAT
COURT ONLY TWO ARE OPEN HERE, THE IMPORTANCE OF WHICH LED US TO GRANT
CERTIORARI.  320 U.S. 725.  THE QUESTIONS ARE THESE:  (1) IN VIEW OF
THE PETITIONER'S ACTIVITIES, IS THE CONDUCT FOUND BY THE BOARD TO
CONSTITUTE UNFAIR LABOR PRACTICES WITHIN THE SCOPE OF THE NATIONAL
LABOR RELATIONS ACT; (2) IF CONGRESS HAS PROSCRIBED SUCH CONDUCT, HAS
IT EXCEEDED ITS POWER TO REGULATE COMMERCE AMONG THE SEVERAL STATES? 

THE POLISH NATIONAL ALLIANCE IS A FRATERNAL BENEFIT SOCIETY PROVIDING
DEATH, DISABILITY, AND ACCIDENT BENEFITS TO ITS MEMBERS AND THEIR
BENEFICIARIES.  INCORPORATED UNDER THE LAWS OF ILLINOIS, IT IS
ORGANIZED INTO 1,817 LODGES SCATTERED THROUGH TWENTY-SEVEN STATES, THE
DISTRICT OF COLUMBIA, AND THE PROVINCE OF MANITOBA, CANADA.  AS THE
"LARGEST FRATERNAL ORGANIZATION IN THE WORLD OF AMERICANS OF POLISH
DESCENT," IT HAD OUTSTANDING, IN 1941, 272,897 INSURANCE BENEFIT
CERTIFICATES WITH A FACE VALUE OF NEARLY $160,000,000.  OVER 76% OF
THESE CERTIFICATES WERE HELD BY PERSONS LIVING OUTSIDE OF ILLINOIS.  AT
THE END OF THAT YEAR, PETITIONER'S ASSETS TOTALLED ABOUT $30,000,000,
IN CASH, REAL ESTATE IN FIVE STATES, UNITED STATES GOVERNMENT BONDS,
FOREIGN GOVERNMENT BONDS, BONDS OF VARIOUS STATES AND THEIR POLITICAL
SUBDIVISIONS, RAILROAD, PUBLIC UTILITY, AND INDUSTRIAL BONDS, AND
STOCKS.  FROM ITS ORGANIZATION IN 1880 UNTIL THE END OF 1940, THE
ALLIANCE SPENT OVER $7,000,000 FOR CHARITABLE, EDUCATIONAL, AND
FRATERNAL ACTIVITIES AMONG ITS MEMBERS.  DURING THE SAME PERIOD, IT
PAID OUT OVER $38,000,000 IN "MORTUARY CLAIMS." 

PETITIONER DIRECTS FROM ITS HOME OFFICE IN CHICAGO A STAFF OF OVER
225 FULL AND PART-TIME ORGANIZERS AND FIELD AGENTS IN TWENTY-SIX STATES
WHOSE TRAVELING EXPENSES ARE BORNE BY ALLIANCE AND WHO RECEIVE
COMMISSIONS FOR NEW MEMBERSHIPS.  SINCE ITS 1939 CONVENTION, ALLIANCE
HAS ADMITTED NO MORE "SOCIAL MEMBERS."  THEREAFTER, ALL APPLICANTS HAVE
BEEN REQUIRED TO BUY INSURANCE CERTIFICATES PROVIDING VARIOUS TYPES OF
LIFE, ENDOWMENT, AND TERM COVERAGE.  THESE POLICIES CONTAIN THE TYPICAL
LOAN, CASH SURRENDER VALUE, OPTIONAL SETTLEMENT, AND DIVIDEND
PROVISIONS.  PETITIONER SPENT OVER $10,000 FOR ADVERTISING OUTSIDE OF
ILLINOIS DURING 1941.  IT EMPLOYS A GEORGIA CREDIT COMPANY TO REPORT ON
THE FINANCIAL STANDING AND CHARACTER OF THE APPLICANTS, AND REINSURES
SUBSTANDARD RISKS WITH AN INDIANA COMPANY. 

ALLIANCE LODGES ARE ORGANIZED INTO 190 COUNCILS, 160 OF WHICH ARE
OUTSIDE THE STATE OF ILLINOIS.  THE COUNCILS ELECT DELEGATES TO THE
NATIONAL CONVENTION, AND IT IN TURN ELECTS THE EXECUTIVE AND
ADMINISTRATIVE OFFICERS.  THE CENSOR OF ALLIANCE IS ITS RANKING OFFICER
AND HE APPOINTS AN EDITORIAL STAFF WHICH PUBLISHES A WEEKLY PAPER
DISTRIBUTED TO MEMBERS.  OF THE 6,857,556 COPIES PUBLISHED IN 1941,
ABOUT 80% WERE MAILED TO PERSONS LIVING OUTSIDE OF ILLINOIS. 

THIS SUMMARY OF THE ACTIVITIES OF ALLIANCE AND OF THE METHODS AND
FACILITIES FOR THEIR PURSUIT AMPLY SHOWS THE WEB OF MONEY-MAKING
TRANSACTIONS WOVEN ACROSS MANY STATE LINES.  AN EFFECTIVE STRIKE
AGAINST SUCH A BUSINESS ENTERPRISE, CENTERED IN CHICAGO BUT RADIATING
FROM IT ALL OVER THE COUNTRY, WOULD AS A PRACTICAL MATTER CERTAINLY
BURDEN AND OBSTRUCT THE MEANS OF TRANSMISSION AND COMMUNICATION ACROSS
THESE STATE LINES.  STOPPAGE OR DISRUPTION OF THE WORK IN CHICAGO
INVOLVES INTERRUPTIONS IN THE STEADY STREAM, INTO AND OUT OF ILLINOIS,
OF BILLS, NOTICES, AND POLICIES, THE PAYMENTS OF COMMISSIONS, THE
MAKING OF LOANS ON POLICIES, THE INSERTION AND CIRCULATION OF
ADVERTISING MATERIAL IN NEWSPAPERS, AND ITS DISSEMINATION OVER THE
RADIO.  THE EFFECT OF SUCH INTERRUPTIONS ON COMMERCE IS UNMISTAKABLE. 
THE LOAD OF INTERSTATE COMMUNICATION AND TRANSPORTATION SERVICES IS
LESSENED, CASH NECESSARY FOR INTERSTATE BUSINESS BECOMES UNAVAILABLE,
THE BUSINESS, INTERSTATE, OF NEWSPAPERS AND RADIO STATIONS SUFFER.  NOR
IS THIS ALL.  ALLIANCE, IT APPEARS, PLAYS A CREDIT ROLE IN INTERSTATE
INDUSTRIES, RAILROADS, AND OTHER PUBLIC UTILITIES.  IN 1941, IT
ACQUIRED SECURITIES IN AN AMOUNT IN EXCESS OF $11,000,000, AND SOLD OR
REDEEMED SECURITIES COSTING MORE THAN $7,500,000.  FINANCIAL
TRANSACTIONS OF THIS MAGNITUDE CANNOT BE IMPEDED EVEN TEMPORARILY
WITHOUT AFFECTING TO AN EXTENT NOT NEGLIGIBLE THE INTERSTATE
ENTERPRISES IN WHICH THE LARGE ASSETS OF ALLIANCE ARE INVESTED.  THAT
SUCH ARE THE SUBSTANTIAL EFFECTS ON INTERSTATE COMMERCE OF DISLOCATING
LABOR PRACTICES BY INSURANCE COMPANIES, WAS ESTABLISHED BEFORE THE
LABOR BOARD IN AT LEAST THIRTEEN COMPARABLE SITUATIONS.  FN1  THE
PRACTICAL JUSTIFICATION OF SUCH A CONCLUSION HAS NOT HERETOFORE BEEN
CHALLENGED.  CONSIDERATIONS LIKE THESE LED THE BOARD TO FIND THAT
PETITIONER'S PRACTICES "HAVE A CLOSE, INTIMATE, AND SUBSTANTIAL
RELATION TO TRADE, TRAFFIC, AND COMMERCE AMONG THE SEVERAL STATES AND
TEND TO LEAD TO LABOR DISPUTES BURDENING AND OBSTRUCTING COMMERCE," AND
WERE THEREFORE "UNFAIR LABOR PRACTICES AFFECTING COMMERCE WITHIN THE
MEANING OF SECTION 2(6) AND (7)," AND AS SUCH, PROHIBITED BY SEC. 10 OF
THE WAGNER ACT. 

BY THAT ACT, CONGRESS IN ORDER TO PROTECT INTERSTATE COMMERCE FROM
ADVERSE EFFECTS OF LABOR DISPUTES HAS UNDERTAKEN TO REGULATE ALL
CONDUCT HAVING SUCH CONSEQUENCES THAT CONSTITUTIONALLY IT CAN
REGULATE.  LABOR BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1, 31; LABOR
BOARD V. FAINBLATT, 306 U.S. 601, 607.  WITH NEGLIGIBLE EXCEPTIONS,
CONGRESS DID NOT EXERCISE ITS POWER TO REGULATE COMMERCE PRIOR TO ITS
ENACTMENT IN 1887 OF THE INTERSTATE COMMERCE ACT.  24 STAT. 379, 49
U.S.C. SEC. 1 ET SEQ. SINCE THAT TIME IT HAS FREQUENTLY CHOSEN, AS THE
STATUTES AT LARGE ABUNDANTLY PROVE, TO REGULATE ONLY PART OF WHAT IT
CONSTITUTIONALLY CAN REGULATE.  AGAIN, HALF A DOZEN ENACTMENTS, OTHER
THAN THE NATIONAL LABOR RELATIONS ACT, ARE SUFFICIENT TO ILLUSTRATE
THAT WHEN IT WANTS TO BRING ASPECTS OF COMMERCE WITHIN THE FULL SWEEP
OF ITS CONSTITUTIONAL AUTHORITY, IT MANIFESTS ITS PURPOSE BY REGULATING
NOT ONLY "COMMERCE" BUT ALSO MATTERS WHICH "AFFECT," "INTERRUPT," OR
"PROMOTE" INTERSTATE COMMERCE.  SEE, FOR EXAMPLE, ACT OF JUNE 18, 1934,
SEC. 2, 48 STAT. 979, 18 U.S.C. SEC. 420A; BITUMINOUS COAL ACT, SEC. 4
A, 50 STAT. 72, 83, 15 U.S.C. SEC. 834; CIVIL AERONAUTICS ACT, SEC.
1(3), 52 STAT. 973, 977, 49 U.S.C. SEC. 401(3); FEDERAL EMPLOYERS'
LIABILITY ACT, SEC. 1, AS AMENDED, 53 STAT. (PART 2) 1404, 45 U.S.C.
SEC. 51; TRANSPORTATION ACT OF 1920, SEC. 307(B)(3), 41 STAT. 456, 471;
TENNESSEE VALLEY AUTHORITY ACT, SEC. 31, 49 STAT. 1075, 1080, 16 U.S.C.
SEC. 831DD.  IN SO DESCRIBING THE RANGE OF ITS CONTROL, CONGRESS IS NOT
INDULGING STYLISTIC PREFERENCES; IT IS MEDIATING BETWEEN FEDERAL AND
STATE AUTHORITIES, AND DECIDING WHAT MATTERS ARE TO BE TAKEN OVER BY
THE CENTRAL GOVERNMENT AND WHAT TO BE LEFT TO THE STATES.  UNITED
STATES V. DARBY, 312 U.S. 100; KIRSCHBAUM CO. V. WALLING, 316 U.S.
517.  AND SO IN THIS ACT, UNLIKE SOME FEDERAL REGULATORY MEASURES, SEE
FEDERAL TRADE COMM'N V. BUNTE BROS., 312 U.S. 349, 351; KIRSCHBAUM CO.
V. WALLING, SUPRA, AT 522-523, CONGRESS HAS EXPLICITLY REGULATED NOT
MERELY TRANSACTIONS OR GOODS IN INTERSTATE COMMERCE BUT ACTIVITIES
WHICH IN ISOLATION MIGHT BE DEEMED TO BE MERELY LOCAL BUT IN THE
INTERLACINGS OF BUSINESS ACROSS STATE LINES ADVERSELY AFFECT SUCH
COMMERCE.  BY THE WAGNER ACT, CONGRESS GAVE THE BOARD AUTHORITY TO
PREVENT PRACTICES "TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR
OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE."  SEC. 2(7) OF THE
NATIONAL LABOR RELATIONS ACT (49 STAT. 449, 450, 29 U.S.C. SEC.
152(7)).  CONGRESS THEREFORE LEFT IT TO THE BOARD TO ASCERTAIN WHETHER
PROSCRIBED PRACTICES WOULD IN PARTICULAR SITUATIONS ADVERSELY AFFECT
COMMERCE WHEN JUDGED BY THE FULL REACH OF THE CONSTITUTIONAL POWER OF
CONGRESS.  WHETHER OR NO PRACTICES MAY BE DEEMED BY CONGRESS TO AFFECT
INTERSTATE COMMERCE IS NOT TO BE DETERMINED BY CONFINING JUDGMENT TO
THE QUANTITATIVE EFFECT OF THE ACTIVITIES IMMEDIATELY BEFORE THE
BOARD.  APPROPRIATE FOR JUDGMENT IS THE FACT THAT THE IMMEDIATE
SITUATION IS REPRESENTATIVE OF MANY OTHERS THROUGHOUT THE COUNTRY, THE
TOTAL INCIDENCE OF WHICH IF LEFT UNCHECKED MAY WELL BECOME FAR-REACHING
IN ITS HARM TO COMMERCE.  LABOR BOARD V. FAINBLATT, SUPRA, AT 607-608. 

WE HAVE SAID ENOUGH TO INDICATE THE GROUND FOR OUR CONCLUSION THAT
THE BOARD WAS NOT UNJUSTIFIED IN FINDING THAT THE UNFAIR LABOR
PRACTICES FOUND BY IT WOULD AFFECT COMMERCE.  AND THE UNDOUBTED FACT
THAT ALLIANCE PROMOTES, AMONG AMERICANS OF POLISH DESCENT, INTEREST IN,
AND DEVOTION TO, THE CONTRIBUTIONS THAT POLAND HAS MADE TO CIVILIZATION
DOES NOT SUBORDINATE ITS BUSINESS ACTIVITIES TO INSIGNIFICANCE. 
ACCORDINGLY, THE BOARD COULD FIND THAT ITS CULTURAL AND FRATERNAL
ACTIVITIES DO NOT WITHDRAW ALLIANCE FROM AMENABILITY TO THE WAGNER
ACT. 

IN THIS ASPECT, THE CASE WE HAVE BEFORE US PRESENTS A WHOLLY NEW
PROBLEM OF THE RELATION OF FEDERAL AUTHORITY TO THE BUSINESS OF
INSURANCE.  THE LONG SERIES OF INSURANCE CASES THAT HAVE COME TO THIS
COURT FOR MORE THAN SEVENTY-FIVE YEARS, FROM PAUL V. VIRGINIA, 8 WALL. 
168, TO NEW YORK LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495, HAVE
INVARIABLY INVOLVED SOME EXERCISE OF STATE POWER RESISTED, IN MOST
INSTANCES, ON THE CLAIM THAT IT WAS IMPLIEDLY FORBIDDEN BY THE COMMERCE
CLAUSE.  SUCH WAS THE CONTEXT IN WHICH THIS COURT DECIDED AGAIN AND
AGAIN THAT THE MAKING OF A CONTRACT OF INSURANCE IS NOT INTERSTATE
COMMERCE AND THAT, SINCE THE BUSINESS OF INSURANCE IS IN EFFECT MERELY
A CONGERIES OF CONTRACTS, THE STATES MAY, FOR TAXING AND DIVERSE OTHER
PURPOSES, REGULATE THE MAKING OF SUCH CONTRACTS AND THE INSURANCE
BUSINESS FREE FROM THE LIMITATIONS IMPOSED UPON STATE ACTION BY THE
COMMERCE CLAUSE.  CONSTITUTIONAL QUESTIONS THAT LOOK ALIKE OFTEN ARE
ALTOGETHER DIFFERENT AND CALL FOR DIFFERENT ANSWERS BECAUSE THEY BRING
INTO PLAY DIFFERENT PROVISIONS OF THE CONSTITUTION OR DIFFERENT
EXERTIONS OF POWER UNDER IT.  THUS, FEDERAL REGULATION DOES NOT
PRECLUDE STATE TAXATION AND STATE TAXATION DOES NOT PRECLUDE FEDERAL
REGULATION.  COMPARE, FOR EXAMPLE, HEISLER V. THOMAS COLLIERY CO., 260
U.S. 245, WITH SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381. 

WE HAVE, THEREFORE, NOW PRESENTED FOR THE FIRST TIME NOT AN EXERCISE
OF STATE BUT OF NATIONAL POWER IN RELATION TO THE INSURANCE BUSINESS. 
AND SO THE ULTIMATE QUESTION IS WHETHER, IN VIEW OF THE RELATION
BETWEEN THE ACTIVITIES OF THE INSURANCE BUSINESS BEFORE US AND THE
OPERATION OF ECONOMIC FORCES ACROSS STATE LINES, THE CONSTITUTION
DENIES TO CONGRESS THE POWER TO SAY THAT THE INTERPLAY OF THE INSURANCE
BUSINESS AND THOSE ECONOMIC FORCES IS SUCH THAT ITS POWER "TO REGULATE
COMMERCE  ...  AMONG THE SEVERAL STATES" CARRIES WITH IT THE POWER TO
REGULATE THE CONDUCT HERE REGULATED BY RELEVANT LEGISLATION. 

THE PROCESS OF ADJUSTING THE INTERACTING AREAS OF NATIONAL AND STATE
AUTHORITY OVER COMMERCE HAS BEEN REFLECTED IN HUNDREDS OF CASES FROM
THE VERY BEGINNING OF OUR HISTORY.  PRECISELY THE SAME KIND OF ISSUES
HAS PLAGUED THE TWO GREAT ENGLISH-SPEAKING FEDERATIONS, THE
CONSTITUTIONS OF WHICH SIMILARLY DISTRIBUTE LEGISLATIVE POWER OVER
BUSINESS BETWEEN CENTRAL AND SUBORDINATE GOVERNMENTS.  SEE SEC. 91 OF
THE BRITISH NORTH AMERICA ACT, 1867, 30 & 31 VICT., C. 3, AND REPORT OF
THE (CANADIAN) ROYAL COMMISSION ON DOMINION-PROVINCIAL RELATIONS,
(1940) BK. II, C. IV; SEC. 51 OF THE AUSTRALIA CONSTITUTIONAL ACT,
1900, 63 & 64 VICT., C. 12, AND REPORT OF THE (AUSTRALIAN) ROYAL
COMMISSION ON THE CONSTITUTION, (1929) C. XIV.  THESE ARE DIFFICULTIES
INHERENT IN SUCH A FEDERAL CONSTITUTIONAL SYSTEM. 

THE INTERPENETRATIONS OF MODERN SOCIETY HAVE NOT WIPED OUT STATE
LINES.  IT IS NOT FOR US TO MAKE INROADS UPON OUR FEDERAL SYSTEM EITHER
BY INDIFFERENCE TO ITS MAINTENANCE OR EXCESSIVE REGARD FOR THE UNIFYING
FORCES OF MODERN TECHNOLOGY.  SCHOLASTIC REASONING MAY PROVE THAT NO
ACTIVITY IS ISOLATED WITHIN THE BOUNDARIES OF A SINGLE STATE, BUT THAT
CANNOT JUSTIFY ABSORPTION OF LEGISLATIVE POWER BY THE UNITED STATES
OVER EVERY ACTIVITY.  ON THE OTHER HAND, THE OLD ADMONITION NEVER
BECOMES STALE THAT THIS COURT IS CONCERNED WITH THE BOUNDS OF LEGAL
POWER AND NOT WITH THE BOUNDS OF WISDOM IN ITS EXERCISE BY CONGRESS. 
WHEN THE CONDUCT OF AN ENTERPRISE AFFECTS COMMERCE AMONG THE STATES IS
A MATTER OF PRACTICAL JUDGMENT, NOT TO BE DETERMINED BY ABSTRACT
NOTIONS.  THE EXERCISE OF THIS PRACTICAL JUDGMENT THE CONSTITUTION
ENTRUSTS PRIMARILY AND VERY LARGELY TO THE CONGRESS, SUBJECT TO THE
LATTER'S CONTROL BY THE ELECTORATE.  GREAT POWER WAS THUS GIVEN TO THE
CONGRESS:  THE POWER OF LEGISLATION AND THEREBY THE POWER OF PASSING
JUDGMENT UPON THE NEEDS OF A COMPLEX SOCIETY.  STRICTLY CONFINED THOUGH
FAR-REACHING POWER WAS GIVEN TO THIS COURT:  THAT OF DETERMINING
WHETHER THE CONGRESS HAS EXCEEDED LIMITS ALLOWABLE IN REASON FOR THE
JUDGMENT WHICH IT HAS EXERCISED.  TO HOLD THAT CONGRESS COULD NOT DEEM
THE ACTIVITIES HERE IN QUESTION TO AFFECT WHAT MEN OF PRACTICAL AFFAIRS
WOULD CALL COMMERCE, AND TO DEEM THEM RELATED TO SUCH COMMERCE MERELY
BY GOSSAMER THREADS AND NOT BY SOLID TIES, WOULD BE TO DISRESPECT THE
JUDGMENT THAT IS OPEN TO MEN WHO HAVE THE CONSTITUTIONAL POWER AND
RESPONSIBILITY TO LEGISLATE FOR THE NATION.  JUDGMENT AFFIRMED. 

FN1  MATTER OF JOHN HANCOCK MUTUAL LIFE INSURANCE CO., 26 N.L.R.B.
1024; MATTER OF LIFE INSURANCE CO. OF VIRGINIA, 29 N.L.R.B. 246; MATTER
OF LIFE INSURANCE CO. OF VIRGINIA, 31 N.L.R.B. 674; MATTER OF SUPREME
LIBERTY LIFE INSURANCE CO., 32 N.L.R.B. 94; MATTER OF LIFE INSURANCE
CO. OF VIRGINIA, 38 N.L.R.B. 20; MATTER OF COLONIAL LIFE INSURANCE CO.
OF AMERICA, 42 N.L.R.B. 1177; MATTER OF METROPOLITAN LIFE INSURANCE
CO., 43 N.L.R.B. 962; MATTER OF PRUDENTIAL INSURANCE CO. OF AMERICA, 46
N.L.R.B. 430; MATTER OF NORTHWESTERN MUTUAL FIRE ASSOCIATION, 46
N.L.R.B. 825; MATTER OF PEOPLES LIFE INSURANCE CO. OF WASHINGTON, D.C.,
46 NL.R.B. 1115; MATTER OF PRUDENTIAL INSURANCE CO. OF AMERICA, 47
N.L.R.B. 1103; MATTER OF PRUDENTIAL INSURANCE CO. OF AMERICA, 49
N.L.R.B. 450; MATTER OF LIFE AND CASUALTY INSURANCE CO. OF TENNESSEE,
53 N.L.R.B. 1196.  SEE ALSO LABOR BOARD V. BANK OF AMERICA, 130 F.2D
624, 626. 

MR. JUSTICE ROBERTS TOOK NO PARK IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 

MR. JUSTICE BLACK, CONCURRING: 

THE NATIONAL LABOR RELATIONS ACT DOES NOT VEST COURTS WITH POWER TO
REVIEW THE EVIDENCE PRESENTED TO THE LABOR BOARD AND MAKE INDEPENDENT
FINDINGS OF FACT.  29 U.S.C. 160(E).  THEREFORE THE PROPRIETY OF THE
BOARD'S ORDER IN THIS CASE MUST BE CONSIDERED ON THE BASIS OF THE FACTS
THE BOARD FOUND. 

THE BOARD DID NOT EXERCISE JURISDICTION AND ENTER ITS ORDER ON A FACT
FINDING THAT PETITIONER'S INSURANCE ACTIVITIES MERELY AFFECTED COMMERCE
IN TYPES OF INTERSTATE BUSINESS OTHER THAN ITS OWN.  ON THIS FACT ISSUE
IT MADE NO FINDING AT ALL.  ITS FINDING WAS THAT THE PETITIONER, BEING
"ENGAGED IN THE INSURANCE BUSINESS," WAS "ENGAGED IN COMMERCE WITHIN
THE MEANING OF THE ACT."  THIS ULTIMATE FINDING OF FACT RESTED ON
DETAILED SUBORDINATE FINDINGS WHICH REVEALED THE WIDESPREAD INTERSTATE
ACTIVITIES OF THE PETITIONER IN CARRYING ON ITS INSURANCE BUSINESS.  AS
THE COURT'S OPINION POINTS OUT, THESE INSURANCE ACTIVITIES INVOLVED A
"STEADY STREAM, INTO AND OUT OF ILLINOIS, OF BILLS, NOTICES, AND
POLICIES, THE PAYMENTS OF COMMISSIONS, THE MAKING OF LOANS ON POLICIES,
THE INSERTION AND CIRCULATION OF ADVERTISING MATERIAL IN NEWSPAPERS,
AND ITS DISSEMINATION OVER THE RADIO."  ONLY ON THE BASIS OF THE
ULTIMATE FINDING THAT PETITIONER WAS ITSELF "ENGAGED IN COMMERCE" DID
THE BOARD MAKE THE ESSENTIAL FURTHER FINDING THAT PETITIONER'S REFUSAL
TO BARGAIN COLLECTIVELY WITH ITS EMPLOYEES HAD A "CLOSE, INTIMATE, AND
SUBSTANTIAL RELATION TO COMMERCE AMONG THE SEVERAL STATES" AND TENDED
"TO LEAD TO LABOR DISPUTES BURDENING AND OBSTRUCTING COMMERCE." 

AS A CONCLUSION OF LAW THE BOARD STATED THAT PETITIONER'S UNFAIR
LABOR PRACTICES CONSTITUTED "UNFAIR LABOR PRACTICES AFFECTING COMMERCE,
WITHIN THE MEANING OF SECTION 2(6) AND (7) OF THE ACT."  SECTION 2(6)
DEFINES THE TERM "COMMERCE" TO MEAN "TRADE, TRAFFIC  ...  "; AND SEC.
2(7) DEFINES THE TERM "AFFECTING COMMERCE" TO MEAN EITHER "IN COMMERCE"
OR "BURDENING OR OBSTRUCTING COMMERCE."  49 STAT. 449, 450; 29 U.S.C.
152(6) AND (7).  FROM THE LANGUAGE OF THESE DEFINITIONS, AND THE
BOARD'S FINDINGS ABOVE DESCRIBED, IT IS APPARENT THAT THE BOARD'S
CONCLUSION OF LAW THAT "COMMERCE" WAS "AFFECTED" BY PETITIONER'S UNFAIR
LABOR PRACTICES RESTED UPON ITS PREVIOUS CONCLUSION OF FACT THAT
PETITIONER'S INSURANCE BUSINESS WAS ENGAGED IN COMMERCE.  THE BOARD
CONCLUDED THAT, SINCE THE INSURANCE BUSINESS ITSELF WAS ENGAGED IN
COMMERCE, PETITIONER'S REFUSAL TO BARGAIN, AND THE STRIKE THEREBY
PROVOKED, WOULD AFFECT COMMERCE.  COMPARE ASSOCIATED PRESS V. LABOR
BOARD, 301 U.S. 103, 128-130 WITH CONSOLIDATED EDISON CO. V. LABOR
BOARD, 305 U.S. 197, 219-224. 

THE DOCTRINE THAT CONGRESS MAY PROVIDE FOR REGULATION OF ACTIVITIES
NOT THEMSELVES INTERSTATE COMMERCE, BUT MERELY "AFFECTING" SUCH
COMMERCE, RESTS ON THE PREMISE THAT IN CERTAIN FACT SITUATIONS THE
FEDERAL GOVERNMENT MAY FIND THAT REGULATION OF PURELY LOCAL AND
INTRASTATE COMMERCE IS "NECESSARY AND PROPER" TO PREVENT INJURY TO
INTERSTATE COMMERCE.  HOUSTON, E. & W.T. RY. CO. V. UNITED STATES, 234
U.S. 342; SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 46-47; AND SEE
WICKARD V. FILBURN, 317 U.S. 111, 121.  IN APPLYING THIS DOCTRINE TO
PARTICULAR SITUATIONS THIS COURT PROPERLY HAS BEEN CAUTIOUS, AND HAS
REQUIRED CLEAR FINDINGS BEFORE SUBJECTING LOCAL BUSINESS TO PARAMOUNT
FEDERAL REGULATION.  CITY OF YONKERS V. UNITED STATES, 320 U.S. 685,
AND CASES THEREIN CITED.  IT HAS INSISTED UPON "SUITABLE REGARD TO THE
PRINCIPLE THAT WHENEVER THE FEDERAL POWER IS EXERTED WITHIN WHAT WOULD
OTHERWISE BE THE DOMAIN OF STATE POWER, THE JUSTIFICATION OF THE
EXERCISE OF THE FEDERAL POWER MUST CLEARLY APPEAR."  ID.; FLORIDA V.
UNITED STATES, 282 U.S. 194, 211-212; CF. PHELPS DODGE CORP. V. LABOR
BOARD, 313 U.S. 177, 196-197; SECURITIES & EXCHANGE COMM'N V. CHENERY
CORP., 318 U.S. 80, 92-95. 

THE BOARD NOT HAVING FOUND AS A FACT THAT PETITIONER'S LIFE INSURANCE
BUSINESS AFFECTED INTERSTATE ACTIVITIES OF OTHER BUSINESSES, THE FIRST
ISSUE IS WHETHER THE BOARD'S FINDINGS THAT PETITIONER'S INSURANCE
ACTIVITIES WERE CONDUCTED ACROSS STATE LINES ARE SUPPORTED BY
EVIDENCE.  I THINK THEY ARE.  THIS LEADS TO THE QUESTION, CHIEFLY
ARGUED BY BOTH PARTIES, "IS THE BUSINESS OF INSURANCE COMMERCE, AND,
WHEN CONDUCTED ACROSS STATE LINES, SUBJECT TO FEDERAL REGULATION AS
SUCH UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION?"  FOR THE REASONS
GIVEN IN THE COURT'S OPINIONS IN THIS CASE AND IN UNITED STATES V.
SOUTH-EASTERN UNDERWRITERS ASSOCIATION, 322 U.S. 533, I AGREE THAT THE
BUSINESS OF INSURANCE IS COMMERCE, SUBJECT TO FEDERAL REGULATION AS
SUCH WHEN CONDUCTED ACROSS STATE LINES, AND THAT THE BOARD'S ORDER WAS
PROPER. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN IN THIS OPINION. 
..END :


















KANSAS V. MISSOURI, 322 U.S. 654 


NO. 9, ORIGINAL.  OPINION, ANTE, P. 213.  DECREE ENTERED JUNE 5, 1944. 


HEADNOTES-UNAVAILABLE 

KANSAS V. MISSOURI. 

DECREE. 

THIS CAUSE HAVING BEEN SUBMITTED UPON THE PLEADINGS, EVIDENCE AND
EXHIBITS, AFTER ARGUMENTS BY COUNSEL, AND UPON THE MASTER'S REPORT, AND
THE COURT HAVING DULY CONSIDERED SAME AND BEING SUFFICIENTLY ADVISED, 

IT IS ORDERED, ADJUDGED AND DECREED THAT THE BOUNDARY LINE BETWEEN
THE STATES OF KANSAS AND MISSOURI, WHICH EXTENDS FROM THE INTERSECTION
OF THE MISSOURI RIVER WITH THE 40TH PARALLEL, NORTH LATITUDE, SOUTHWARD
TO THE MIDDLE OF THE MOUTH OF THE KAW OR KANSAS RIVER, BE AND IT IS
HEREBY ESTABLISHED AS THE MIDDLE LINE OF THE MAIN NAVIGABLE CHANNEL OF
SAID MISSOURI RIVER AS SAID RIVER FLOWED AT THE TIME OF THE FILING OF
COMPLAINANT'S BILL OF COMPLAINT HEREIN, THROUGHOUT THE ENTIRE COURSE OF
SAID RIVER FROM ITS INTERSECTION WITH THE 40TH PARALLEL, NORTH
LATITUDE, SOUTHWARD TO THE MIDDLE OF THE MOUTH OF THE KAW OR KANSAS
RIVER, WITH THE EXCEPTION OF SUCH DEVIATIONS AND DEPARTURES FROM THE
COURSE OF SAID MISSOURI RIVER, AS IT THEN FLOWED, AS ARE COVERED BY AND
PROVIDED FOR IN THE WRITTEN STIPULATIONS BETWEEN THE PARTIES AND ARE
INCORPORATED IN THE DESCRIPTION OF SAID ENTIRE BOUNDARY HEREINAFTER SET
FORTH. 

THE BOUNDARY LINE NEREINBEFORE MENTIONED AND HEREBY ESTABLISHED IS
MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO-WIT: 

BEGINNING WITH THE FORTIETH PARALLEL OF NORTH LATITUDE, THE SAME
BEING THE BOUNDARY BETWEEN THE STATE OF KANSAS AND THE STATE OF
NEBRASKA, (AT ITS INTERSECTION WITH THE MISSOURI RIVER) THENCE DOWN THE
COURSE OR CHANNEL OF THE SAID MISSOURI RIVER TO A PLACE THEREIN
OPPOSITE WHICH THE LEFT BANK THEREOF IS A POINT 15.50 CHAINS WEST AND
9.75 CHAINS SOUTH OF THE NORTHWEST CORNER OF SECTION FOURTEEN, TOWNSHIP
ONE-SOUTH, RANGE NINETEEN-EAST, DONIPHAN COUNTY, KANSAS. 

THENCE DEPARTING UPON AND FROM THE LEFT BANK (AT A POINT 15.50 CHS. 
SOUTH OF THE NW. CORNER OF SEC. 14, T. 1 S., R. 19 E., DONIPHAN COUNTY,
KANSAS) OF THE PRESENT COURSE OR CHANNEL OF THE SAID MISSOURI RIVER AND
RUNNING N. 40 DEGREES 33' E. FOR A DISTANCE OF 34.33 CHS.; 

THENCE N. 73 DEGREES 00' E. FOR A DISTANCE OF 20.89 CHS.; 

THENCE N. 72 DEGREES 30' E. FOR A DISTANCE OF 21.30 CHS.; 

THENCE N. 73 DEGREES 40' E. FOR A DISTANCE OF 5.22 CHS.  (THE SAME
BEING A POINT 14.44 CHS.  SOUTH OF THE SW. CORNER OF SEC. 26, T. 60 N.,
R. 39 W., HOLT COUNTY, MISSOURI); 

THENCE N. 73 DEGREES 40' E. FOR A DISTANCE OF 8.59 CHS.; 

THENCE N. 74 DEGREES 45' E. FOR A DISTANCE OF 10.01 CHS.; 

THENCE N. 72 DEGREES 15' E. FOR A DISTANCE OF 12.09 CHS.; 

THENCE N. 77 DEGREES 00' E. FOR A DISTANCE OF 1.32 CHS.  (THE SAME
BEING A POINT 36.24 CHS.  NORTH OF THE NW. CORNER OF SEC. 13, T. 1 S.,
R. 19 E., DONIPHAN COUNTY, KANSAS); 

THENCE N. 73 DEGREES 45' E. FOR A DISTANCE OF 6.99 CHS.  (THE SAME
BEING A POINT 3.57 CHS.  SOUTH OF THE QUARTER SECTION CORNER ON THE
SOUTH SIDE OF SEC. 26, T. 60 N., R. 39 W., HOLT COUNTY, MISSOURI); 

THENCE N. 73 DEGREES 45' E. FOR A DISTANCE OF 33.35 CHS.  (THE SAME
BEING A POINT 7.75 CHS.  NORTH OF THE CENTER OF SEC. 12, T. 1 S., R. 19
E., DONIPHAN COUNTY, KANSAS); 

THENCE S. 85 DEGREES 00' E. FOR A DISTANCE OF 40.20 CHS.; 

THENCE S. 83 DEGREES 30' E. FOR A DISTANCE OF 8.00 CHS.  (THE SAME
BEING A POINT 38.66 CHS.  SOUTH OF THE CENTER OF SEC. 25, T. 60 N., R.
39 W., HOLT COUNTY, MISSOURI); 

THENCE S. 83 DEGREES 30' E. FOR A DISTANCE OF 4.95 CHS.; 

THENCE S. 82 DEGREES 45' E. FOR A DISTANCE OF 11.01 CHS.; 

THENCE S. 80 DEGREES 30' E. FOR A DISTANCE OF 9.91 CHS.; 

THENCE S. 80 DEGREES 00' E. FOR A DISTANCE OF 8.95 CHS.; 

THENCE S. 46 DEGREES 00' E. FOR A DISTANCE OF 8.67 CHS.; 

THENCE S. 42 DEGREES 30' E. FOR A DISTANCE OF 10.45 CHS.; 

THENCE S. 38 DEGREES 00' E. FOR A DISTANCE OF 10.98 CHS.; 

THENCE S. 40 DEGREES 30' E. FOR A DISTANCE OF 9.99 CHS.; 

THENCE S. 38 DEGREES 00' E. FOR A DISTANCE OF 9.89 CHS.  (THE SAME
BEING TO THE CENTER OF THE ROAD); 

THENCE S. 18 DEGREES 00' E. FOR A DISTANCE OF 12.57 CHS.; 

THENCE S. 14 DEGREES 26' E. FOR A DISTANCE OF 13.72 CHS.; 

THENCE S. 8 DEGREES 30' W. FOR A DISTANCE OF 11.74 CHS.  (THE SAME
BEING A POINT 40.52 CHS.  WEST OF THE SE. CORNER OF SEC. 31, T. 60 N.,
R. 38 W., HOLT COUNTY, MISSOURI); 

THENCE S. 8 DEGREES 30' W. FOR A DISTANCE OF 5.60 CHS.; 

THENCE S. 12 DEGREES 30' W. FOR A DISTANCE OF 12.22 CHS.; 

THENCE S. 19 DEGREES 30' W. FOR A DISTANCE OF 8.98 CHS.; 

THENCE S. 25 DEGREES 00' W. FOR A DISTANCE OF 15.50 CHS.  (THE SAME
BEING A POINT 52.98 CHS.  W. AND 1.24 CHS.  SOUTH OF THE E. QUARTER
CORNER OF SEC. 6, T. 59 N., R. 38 W., HOLT COUNTY, MISSOURI, WHICH
POINT ALSO IS 68.80 CHS.  EAST OF AND 0.47 CH. SOUTH OF THE CORNER TO
SECS. 13, 18, 19, 24 IN T. 1 S., RS. 19 AND 20 E., DONIPHAN COUNTY,
KANSAS); 

THENCE S. 36 DEGREES 45' W. FOR A DISTANCE OF 21.00 CHS.; 

THENCE S. 28 DEGREES 30' W. FOR A DISTANCE OF 18.50 CHS.; 

THENCE S. 38 DEGREES 15' W. (FOR A DISTANCE OF 36.30 CHS.)  TO THE
LEFT BANK OF THE MISSOURI RIVER, AT WHICH LATTER POINT THE SAID
BOUNDARY RETURNS TO THE LEFT BANK OF THE PRESENT COURSE OR CHANNEL OF
THE SAID MISSOURI RIVER AND FROM THERE DOWN THE COURSE OR CHANNEL OF
THE SAID MISSOURI RIVER TO THE PLACE THEREIN WHERE THE SAID MISSOURI
RIVER INTERSECTS THE WEST LINE OF SEC. 28, T. 59 N., R. 38 W., HOLT
COUNTY, MISSOURI. 

THENCE FROM THE PLACE WHERE THE MISSOURI RIVER INTERSECTS THE WEST
LINE OF SEC. 28, T. 59 N., R. 38 W., HOLT COUNTY, MISSOURI, ON DOWN THE
COURSE OR CHANNEL OF THE SAID MISSOURI RIVER, AND WITH THE MIDDLE LINE
OF THE MAIN NAVIGABLE CHANNEL OF SAID MISSOURI RIVER AS THE SAME FLOWED
ON THE 27TH DAY OF MAY, 1940, THROUGH THE SECTION OF SAID RIVER KNOWN
AS FORBES BEND, IN A GENERAL EASTERLY AND SOUTHEASTERLY DIRECTION
DOWNSTREAM TO THE LOWER END OF FORBES BEND TO A POINT IN THE PRESENT
COURSE OR CHANNEL OF SAID MISSOURI RIVER OPPOSITE WHICH THE LEFT BANK
OF SAID RIVER INTERSECTS THE NORTH AND SOUTH CENTER SECTION LINE OF
SEC. 1, T. 58 N., R. 38 W., IN HOLT COUNTY, MISSOURI, AND THEN
BEGINNING AT SAID POINT IN THE PRESENT COURSE OR CHANNEL OF THE SAID
MISSOURI RIVER OPPOSITE WHICH POINT THE LEFT BANK OF THE SAID MISSOURI
RIVER INTERSECTS THE NORTH AND SOUTH CENTER SECTION LINE OF SEC. 1, T.
58 N., R. 38 W., IN HOLT COUNTY, MISSOURI, AND THENCE PROCEEDING DOWN
THE COURSE OR CHANNEL OF THE SAID MISSOURI RIVER TO THE PLACE THEREIN
OPPOSITE WHICH THE LEFT BANK OF SAID MISSOURI RIVER IS A POINT 2,216
FEET WEST AND 2,096 FEET SOUTH OF THE NORTHEAST CORNER OF THE NW.
QUARTER SEC. 22, T. 2 S., R. 21 E. IN DONIPHAN COUNTY, KANSAS. 

THENCE DEPARTING UPON AND FROM THE LEFT BANK (AT A POINT 2,216 FEET
WEST AND 2,096 FEET SOUTH OF THE NORTHEAST CORNER OF THE NW. QUARTER OF
SEC. 22, T. 2 S., R. 21 E., IN DONIPHAN COUNTY, KANSAS) OF THE PRESENT
COURSE OR CHANNEL OF THE SAID MISSOURI RIVER AND RUNNING THENCE N. 19
DEGREES 13' E., 2,200 FEET; 

THENCE N. 46 DEGREES 30' E., 4,312 FEET; 

THENCE N. 29 DEGREES 40' E., 5,104 FEET; 

THENCE N. 35 DEGREES 45' E., 3,432 FEET; 

THENCE N. 44 DEGREES 10' E., 660 FEET TO A POINT 1,298 FEET WEST OF
THE NW. CORNER OF SEC. 12, T. 2 S., R. 21 E. IN DONIPHAN COUNTY,
KANSAS; 

THENCE IN A NORTHEASTERLY DIRECTION FOR A DISTANCE OF 1,868 FEET TO A
POINT ON THE W. LINE OF SEC. 1, T. 2 S., R. 21 E. IN DONIPHAN COUNTY,
KANSAS, WHICH LATTER POINT ON SAID W. LINE OF SAID SEC. 1 IS 1,350 FEET
N. OF THE SW. CORNER OF SAID SEC. 1; 

THENCE N. 60 DEGREE 00' E., 1,188 FEET; 

THENCE N. 66 DEGREES 25' E., 1,960 FEET TO A POINT 820 FEET SOUTH OF
THE SW. CORNER OF SEC. 24, T. 59 N., R. 37 W. IN HOLT COUNTY,
MISSOURI; 

THENCE N. 84 DEGREES 05' E., 2,618 FEET TO A POINT 534.6 FEET SOUTH
OF THE S. QUARTER CORNER OF SEC. 24, T. 59 N., R. 37 W. IN HOLT COUNTY,
MISSOURI; 

THENCE S. 78 DEGREES 00' E., 2,409 FEET; 

THENCE S. 60 DEGREES 00' E., 2,323 FEET; 

THENCE S. 43 DEGREES 30' E., 2,748 FEET TO THE LEFT BANK OF THE
MISSOURI RIVER (THE SAME BEING A POINT 561 FEET UPSTREAM FROM U.S.
RIVER MARKER NUMBERED 482) AT WHICH LATTER POINT THE SAID BOUNDARY
RETURNS UPON THE LEFT BANK OF THE SAID MISSOURI RIVER TO THE PRESENT
COURSE OR CHANNEL OF THE SAID MISSOURI RIVER; 

THENCE DOWN THE COURSE OR CHANNEL OF THE SAID MISSOURI RIVER TO THE
PLACE THEREIN OPPOSITE WHICH THE RIGHT BANK THEREOF INTERSECTS THE S.
LINE OF SEC. 10, T. 5 S., R. 21 E. IN DONIPHAN COUNTY, KANSAS; 

THENCE DEPARTING UPON AND FROM THE RIGHT BANK OF SAID MISSOURI RIVER
AND RUNNING THENCE W. UPON THE S. LINE OF SAID SEC. 10, T. 5 S., R. 21
E. IN DONIPHAN COUNTY, KANSAS, TO THE SW. CORNER OF SAID SEC. 10; 

THENCE NORTH ON THE W. LINE OF SAID SEC. 10 FOR A DISTANCE OF 1,322
FEET; 

THENCE N. 18 DEGREES 25' W., 1,122 FEET; 

THENCE N. 61 DEGREES 53' W., 793 FEET; 

THENCE S. 88 DEGREES 21' W., 3,434 FEET TO THE W. LINE OF OGDEN
LAND; 

THENCE S. 89 DEGREES 40' W., 1,783 FEET ON THE S. LINE OF THE KOCH
LAND; 

THENCE S. 10 DEGREES 03' W., 309 FEET; 

THENCE S. 43 DEGREES 36' E., 196 FEET (ALONG CENTER OF ROAD); 

THENCE S. 24 DEGREES 30' W., 504 FEET; 

THENCE S. 27 DEGREES 00' W., 282 FEET (TO TOP OF LEVEE); 

THENCE S. 32 DEGREES 30' W., 360 FEET (ACROSS DITCH); 

THENCE S. 35 DEGREES 34' W., 245 FEET; 

THENCE S. 34 DEGREES 18' W., 809 FEET; 

THENCE S. 30 DEGREES 25' W., 132 FEET; 

THENCE S. 14 DEGREES 13' W., 1,254 FEET, TO A POINT (MARKED BY AN OLD
FENCE CORNER POST) ON THE N. LINE OF ATCHISON COUNTY, KANSAS, WHICH
POINT IS 1,571 FEET EAST OF THE PRESENT EAST BANK OF INDEPENDENCE
CREEK; 

THENCE S. 00 DEGREES 00' W., 500 FEET; 

THENCE S. 00 DEGREES 11' W., 750.65 FEET; 

THENCE S. 14 DEGREES 37' W., 749.35 FEET; 

THENCE S. 14 DEGREES 45' W., 800.00 FEET; 

THENCE S. 14 DEGREES 55' W., 1,000.00 FEET; 

THENCE S. 15 DEGREES 14' W., 1,200.00 FEET; 

THENCE S. 15 DEGREES 02' W., 1,000.00 FEET; 

THENCE S. 14 DEGREES 48' W., 795.00 FEET; 

THENCE N. 71 DEGREES 46' E., 117.00 FEET; 

THENCE N. 48 DEGREES 20' E., 100.00 FEET; 

THENCE N. 00 DEGREES 52' W., 158.75 FEET; 

THENCE N. 53 DEGREES 36' E., 259.90 FEET; 

THENCE N. 62 DEGREES 28' E., 159.60 FEET; 

THENCE N. 85 DEGREES 16' E., 326.10 FEET; 

THENCE S. 57 DEGREES 06' E., 519.35 FEET; 

THENCE S. 63 DEGREES 26' E., 268.0 FEET; 

THENCE N. 86 DEGREES 19' E., 412.0 FEET; 

THENCE S. 57 DEGREES 46' E., 536.0 FEET; 

THENCE N. 71 DEGREES 46' E., 124.0 FEET; 

THENCE N. 12 DEGREES 34' W., 328.1 FEET; 

THENCE N. 16 DEGREES 23' E., 295.8 FEET; 

THENCE N. 40 DEGREES 17' E., 238.8 FEET; 

THENCE N. 71 DEGREES 29' E., 166.7 FEET; 

THENCE S. 48 DEGREES 13' E., 201.2 FEET; 

THENCE N. 74 DEGREES 21' E., 694.6 FEET; 

THENCE N. 41 DEGREES 51' E., 125.0 FEET; 

THENCE N. 33 DEGREES 47' E., 59.2 FEET; 

THENCE N. 57 DEGREES 55' E., 193.9 FEET; 

THENCE S. 87 DEGREES 03' E., 369.9 FEET; 

THENCE N. 75 DEGREES 39' E., 285.5 FEET; 

THENCE N. 80 DEGREES 36' E., 361.1 FEET; 

THENCE S. 82 DEGREES 23' E., 304.0 FEET; 

THENCE S. 59 DEGREES 00' E., 187.7 FEET; 

THENCE S. 34 DEGREES 54' E., 173.1 FEET; 

THENCE S. 24 DEGREES 54' E., 268.1 FEET; 

THENCE S. 05 DEGREES 46' E., 77.8 FEET; 

THENCE S. 36 DEGREES 59' W., 338.7 FEET; 

THENCE S. 61 DEGREES 16' W., 252.4 FEET; 

THENCE S. 62 DEGREES 45' W., 313.3 FEET; 

THENCE S. 17 DEGREES 30' W., 296.5 FEET; 

THENCE S. 11 DEGREES 05' W., 167.2 FEET; 

THENCE S. 01 DEGREES 48' W., 460.6 FEET; 

THENCE S. 25 DEGREES 22' E., 250.1 FEET; 

THENCE S. 73 DEGREES 38' E., 277.4 FEET; 

THENCE N. 33 DEGREES 02' E., 151.0 FEET; 

THENCE S. 75 DEGREES 13' E., 329.5 FEET; 

THENCE S. 07 DEGREES 28' E., 126.1 FEET; 

THENCE S. 25 DEGREES 02' W., 244.5 FEET; 

THENCE S. 41 DEGREES 54' W., 215.7 FEET; 

THENCE S. 80 DEGREES 24' W., 251.4 FEET; 

THENCE S. 69 DEGREES 29' W., 210.1 FEET; 

THENCE S. 62 DEGREES 14' W., 495.0 FEET; 

THENCE S. 54 DEGREES 34' W., 386.2 FEET; 

THENCE S. 12 DEGREES 54' W., 443.1 FEET; 

THENCE S. 60 DEGREES 06' E., 263.4 FEET; 

THENCE S. 02 DEGREES 56' W., 283.3 FEET; 

THENCE S. 80 DEGREES 36' W., 136.4 FEET; 

THENCE S. 64 DEGREES 04' W., 192.8 FEET; 

THENCE S. 62 DEGREES 04' W., 236.8 FEET; 

THENCE S. 57 DEGREES 44' W., 342.2 FEET; 

THENCE S. 62 DEGREES 54' W., 293.0 FEET; 

THENCE S. 73 DEGREES 24' W., 230.3 FEET; 

THENCE S. 60 DEGREES 22' W., 267.4 FEET; 

THENCE S. 49 DEGREES 36' W., 344.1 FEET; 

THENCE S. 49 DEGREES 36' W., 200.0 FEET; 

THENCE S. 49 DEGREES 36' W., 71.4 FEET (NORTHEAST CORNER OF ST.
BENEDICT'S); 

THENCE S. 00 DEGREES 12' W., 180.3 FEET; 

THENCE S. 44 DEGREES 46' W., 162.4 FEET; 

THENCE S. 42 DEGREES 33' W., 528.0 FEET; 

THENCE S. 35 DEGREES 10' W., 621.7 FEET; 

THENCE S. 12 DEGREES 59' W., 254.8 FEET; 

THENCE S. 13 DEGREES 20' W., 240.2 FEET; 

THENCE S. 21 DEGREES 23' W., 382.8 FEET; 

THENCE S. 18 DEGREES 05' W., 343.9 FEET; 

THENCE S. 20 DEGREES 47' W., 198.0 FEET; 

THENCE S. 13 DEGREES 18' W., 264.0 FEET; 

THENCE S. 05 DEGREES 40' W., 264.0 FEET; 

THENCE S. 13 DEGREES 00' W., 326.0 FEET;    THENCE S. 19 DEGREES 30'
W., 330.0 FEET; 

THENCE S. 26 DEGREES 44' W., 208.6 FEET; 

THENCE S. 00 DEGREES 00' W., 126.1 FEET; 

THENCE S. 00 DEGREES 00' W., 495.0 FEET; 

THENCE S. 00 DEGREES 00' W., 495.0 FEET, TO A POINT UPON THE RIGHT
BANK OF THE SAID MISSOURI RIVER, AT WHICH LATTER POINT THE SAID
BOUNDARY RETURNS UPON THE RIGHT BANK OF THE SAID MISSOURI RIVER TO THE
PRESENT COURSE OR CHANNEL OF THE SAID MISSOURI RIVER AND RUNNING THENCE
DOWN THE COURSE OR CHANNEL OF THE SAID MISSOURI RIVER TO THE PLACE
THEREIN OPPOSITE WHICH THE LEFT BANK OF THE SAID MISSOURI RIVER IS
2,898 FEET EAST AND 2,124 FEET SOUTH OF THE CENTER OF SEC. 26, T. 54
N., R. 37 W. IN PLATTE COUNTY, MISSOURI, THENCE DEPARTING UPON AND FROM
THE LEFT BANK OF THE PRESENT COURSE OR CHANNEL OF THE SAID MISSOURI
RIVER, AND RUNNING THENCE NORTH TO A POINT 1,850 FEET SOUTH AND 258
FEET EAST OF THE SW. CORNER OF SEC. 24, T. 54, R. 37 W. OF THE 5TH
PRINCIPAL MERIDIAN IN PLATTE COUNTY, MISSOURI; 

THENCE E. 481 FEET; 

THENCE N. 15 DEGREES 55' E. 1,924 FEET TO THE SOUTH LINE OF THE
AFORESAID SEC. 24; 

THENCE E. TO THE NORTH AND SOUTH CENTER LINE OF SEC. 6, T. 7 S., R.
22 E. IN ATCHISON COUNTY, KANSAS; 

THENCE N. TO A POINT 880 FEET NORTH OF THE CENTER CORNER OF SAID
KANSAS SEC. 6; 

THENCE E. 1 MILE TO A POINT 880 FEET NORTH OF THE CENTER LINE OF
KANSAS SEC. 5, T. 7 S., R. 22 E., IN ATCHISON COUNTY, KANSAS; 

THENCE S. 880 FEET TO THE CENTER OF THE AFORESAID KANSAS SEC. 5; 

THENCE E. 645 FEET TO THE TOP OF A LEVEE; 

THENCE S. 17 DEGREES AND 30' E., ALONG THE TOP OF SAID LEVEE, 2,772
FEET; 

THENCE S. 14 DEGREES E., 2,740 FEET; 

THENCE S. 11 DEGREES AND 30' E., 2,721 FEET TO A POINT 130 FEET EAST
OF THE SE. CORNER OF SEC. 8, T. 7, R. 22 E. OF THE 6TH PRINCIPAL
MERIDIAN IN ATCHISON COUNTY, KANSAS; 

THENCE S. 5 DEGREES AND 10' E., ALONG THE CENTER OF A SLOUGH, 2,969
FEET TO THE LEFT BANK OF THE MISSOURI RIVER, THE LATTER POINT BEING
1,750 FEET WEST OF THE SE. CORNER OF THE SW. QUARTER OF FRACTIONAL SEC.
32, T. 54, R. 36 W. OF 5TH PRINCIPAL MERIDIAN, IN PLATTE COUNTY,
MISSOURI, AT WHICH LATTER POINT THE SAID BOUNDARY RETURNS UPON THE LEFT
BANK OF THE SAID MISSOURI RIVER TO THE PRESENT COURSE OR CHANNEL OF THE
SAID MISSOURI RIVER; 

THENCE DOWN THE COURSE OR CHANNEL OF THE SAID MISSOURI RIVER TO THE
PLACE THEREIN OPPOSITE WHICH THE LEFT BANK OF THE SAID MISSOURI RIVER
IS 1,878 FEET WEST AND 1,172 FEET NORTH OF THE W. QUARTER CORNER OF
SEC. 35, T. 7 S., R. 22 E. IN LEAVENWORTH COUNTY, KANSAS; 

THENCE DEPARTING UPON AND FROM THE LEFT BANK OF THE PRESENT COURSE OR
CHANNEL OF THE SAID MISSOURI RIVER AND RUNNING 

THENCE S. 65 DEGREES 57' E., 502 FEET; 

THENCE N. 86 DEGREES 03' E., 207 FEET; 

THENCE N. 74 DEGREES 03' E., 200 FEET; 

THENCE S. 71 DEGREES 57' E., 300 FEET; 

THENCE S. 86 DEGREES 57' E., 800 FEET; 

THENCE N. 77 DEGREES 03' E., 2 FEET TO A POINT ON THE WEST LINE OF
SEC. 35, T. 7 S., R. 22 E. IN LEAVENWORTH COUNTY, KANSAS; 

THENCE N. 77 DEGREES 03' E., 628 FEET; 

THENCE N. 36 DEGREES 03' E., 900 FEET; 

THENCE N. 51 DEGREES 03' E., 900 FEET; 

THENCE N. 63 DEGREES 03' E., 7 FEET TO A POINT ON THE NORTH LINE OF
SEC. 35, T. 7 S., R. 22 E. IN LEAVENWORTH COUNTY, KANSAS; 

THENCE N. 63 DEGREES 03' E., 294 FEET; 

THENCE N. 76 DEGREES 18' E., 292 FEET; 

THENCE N. 78 DEGREES 18' E., 111 FEET TO A POINT ON THE NORTH AND
SOUTH CENTER SECTION LINE OF SEC. 26, T. 7 S., R. 22 E. IN LEAVENWORTH
COUNTY, KANSAS; 

THENCE N. 78 DEGREES 18' E., 648 FEET; 

THENCE N. 84 DEGREES 30' E., 688 FEET; 

THENCE N. 86 DEGREES 56' E., 915 FEET; 

THENCE N. 65 DEGREES 28' E., 450 FEET TO A POINT ON THE EAST LINE OF
SEC. 26, T. 7 S., R. 22 E. IN LEAVENWORTH COUNTY, KANSAS; 

THENCE N. 65 DEGREES 28' E., 212 FEET; 

THENCE N. 81 DEGREES 57' E., 1,054 FEET; 

THENCE N. 86 DEGREES 29' E., 301 FEET; 

THENCE S. 87 DEGREES 11' E., 350 FEET; 

THENCE S. 85 DEGREES 31' E., 382 FEET; 

THENCE S. 84 DEGREES 30' E., 1,478 FEET; 

THENCE S. 80 DEGREES 00' E., 628 FEET; 

THENCE S. 72 DEGREES 31' E., 196 FEET TO BEAR CREEK; 

THENCE FOLLOWING THE MEANDER OF SAID BEAR CREEK AND RUNNING THENCE S.
39 DEGREES 03' E., 601 FEET TO A POINT ON THE NORTH LINE OF SEC. 36, T.
7 S., R. 22 E. IN LEAVENWORTH COUNTY, KANSAS; 

THENCE S. 39 DEGREES 03' E., 609 FEET TO A POINT ON THE EAST LINE OF
SEC. 36, T. 7 S., R. 22 E. IN LEAVENWORTH COUNTY, KANSAS; 

THENCE S. 39 DEGREES 03' E., 231 FEET; 

THENCE S. 41 DEGREES 39' E., 1,995 FEET; 

THENCE S. 8 DEGREES 01' E., 505 FEET TO A POINT ON THE EAST AND WEST
CENTER SECTION LINE OF SEC. 31, T. 7 S., R. 23 E. IN LEAVENWORTH
COUNTY, KANSAS; 

THENCE S. 08 DEGREES 01' E., 175 FEET; 

THENCE S. 43 DEGREES 56' E., 290 FEET; 

THENCE S. 78 DEGREES 52' E., 400 FEET; 

THENCE S. 03 DEGREES 00' E., 329 FEET; 

THENCE S. 38 DEGREES 58' E., 480 FEET; 

THENCE S. 68 DEGREES 02' E., 930 FEET TO A POINT UPON THE LEFT BANK
OF THE MISSOURI RIVER WHERE THE SAID BEAR CREEK EMPTIES INTO THE SAID
MISSOURI RIVER AND WHICH LATTER POINT IS 1,039 FEET NORTH AND 408 FEET
EAST OF THE S. QUARTER CORNER OF SEC. 31, T. 7 S., R. 23 E. IN
LEAVENWORTH COUNTY, KANSAS, AT WHICH LATTER POINT THE SAID BOUNDARY
RETURNS UPON THE LEFT BANK OF THE SAID MISSOURI RIVER TO THE PRESENT
COURSE OR CHANNEL OF THE SAID MISSOURI RIVER AND RUNNING THENCE DOWN
THE COURSE OR CHANNEL OF THE SAID MISSOURI RIVER TO THE MOUTH OF THE
KANSAS RIVER. 

THE STATE OF KANSAS, ITS OFFICERS, AGENTS AND REPRESENTATIVES, ITS
INHABITANTS, AND ALL OTHER PERSONS, ARE PERPETUALLY ENJOINED FROM
DISPUTING OR OPPOSING THE SOVEREIGNTY, JURISDICTION AND DOMINION OF THE
STATE OF MISSOURI OVER THE TERRITORY ADJUDGED TO SAID STATE BY OR IN
CONSEQUENCE OF THIS DECREE; AND THE STATE OF MISSOURI, ITS OFFICERS,
AGENTS AND REPRESENTATIVES, ITS INHABITANTS, AND ALL OTHER PERSONS, ARE
PERPETUALLY ENJOINED FROM DISPUTING OR OPPOSING THE SOVEREIGNTY,
JURISDICTION AND DOMINION OF THE STATE OF KANSAS OVER THE TERRITORY
ADJUDGED TO SAID STATE BY OR IN CONSEQUENCE OF THIS DECREE. 

THAT INSOFAR AS THE CLAIMS ASSERTED BY COMPLAINANT, THE STATE OF
KANSAS, IN ITS BILL AND, PARTICULARLY IN PARAGRAPHS VI AND VII THEREOF,
WITH RESPECT TO THE FORBES BEND AREA OF THE MISSOURI RIVER, AND THE
RELIEF SOUGHT BY SAID COMPLAINANT IN AND BY SAID BILL, ARE AT VARIANCE
WITH THE TERMS OF THE FOREGOING DECREE, SUCH CLAIMS AND RELIEF ARE
DENIED AND SAID BILL TO THIS EXTENT IS DISMISSED. 

BOTH STATES HAVING REQUESTED POSTPONEMENT OF ENTRY OF AN ORDER
DIRECTING THE PLACING OF SUITABLE MONUMENTS OR MARKERS ON THE ABOVE
DESIGNATED BOUNDARY UNTIL THEY HAVE HAD OPPORTUNITY TO CONSIDER
EXCHANGING CERTAIN LANDS AND TO MAKE SUCH EXCHANGES, JURISDICTION OF
THIS CAUSE IS RETAINED FOR THE PURPOSE OF ENTERING SUCH ORDER AT AN
APPROPRIATE TIME. 

THE COSTS OF THIS SUIT ARE EQUALLY DIVIDED BETWEEN THE TWO STATES,
COMPLAINANT AND DEFENDANT, AND THIS CASE IS RETAINED ON THE DOCKET FOR
FURTHER ORDERS IN FULFILLMENT AND ENFORCEMENT OF THE PROVISIONS OF THIS
DECREE. 
..END :










HARVESTER CO. V. DEPT. OF TAXATION, 322 U.S. 435 


ARGUED APRIL 27, 1944.  - DECIDED MAY 29, 1944.  - 243 WIS. 198, 211, 10
N.W.2D 169, 174, AFFIRMED. 


A STATUTE OF WISCONSIN IMPOSES A TAX "FOR THE PRIVILEGE OF DECLARING
AND RECEIVING DIVIDENDS" OUT OF CORPORATE INCOME DERIVED FROM PROPERTY
LOCATED AND BUSINESS TRANSACTED WITHIN THE STATE, AND REQUIRES
CORPORATIONS TO DEDUCT THE TAX FROM DIVIDENDS DISTRIBUTED TO BOTH
RESIDENT AND NONRESIDENT STOCKHOLDERS.  AS ASSESSED TO THE APPELLANTS
(FOREIGN CORPORATIONS DOING BUSINESS WITHIN THE STATE) THE TAX WAS
MEASURED BY SO MUCH OF THEIR DIVIDENDS AS WAS DERIVED FROM THE PORTION
OF THE CORPORATE SURPLUS ATTRIBUTED BY THE TAX AUTHORITIES TO INCOME
EARNED IN WISCONSIN.  THEIR DIVIDENDS WERE DECLARED AT DIRECTORS'
MEETINGS HELD OUTSIDE THE STATE, AND THE DIVIDEND CHECKS WERE DRAWN ON
BANK ACCOUNTS OUTSIDE THE STATE.  HELD: 

1.  APPELLANTS HAVE STANDING TO CHALLENGE THE CONSTITUTIONALITY OF
THE STATUTE.  P. 440. 

APPELLANTS CAN AVOID PAYMENT OF THE TAX FROM THEIR OWN FUNDS ONLY BY
DEDUCTING IT FROM THEIR STOCKHOLDERS' DIVIDENDS.  IN THE LATTER CASE,
THEY WOULD REMAIN LIABLE, AT LEAST TO THE PREFERRED STOCKHOLDERS, FOR
THE AMOUNTS OF THE DEDUCTIONS IF NOT LAWFULLY TAKEN.  IN EITHER ASPECT,
THEREFORE, APPELLANTS ARE ADVERSELY AFFECTED BY OBEDIENCE TO THE
STATUTE, AND MAY CHALLENGE ITS CONSTITUTIONALITY. 

2.  THE TAX IS WITHIN THE POWER OF THE STATE UNDER THE FEDERAL
CONSTITUTION.  P. 441. 

(A)  IN DETERMINING WHETHER A TAX IS WITHIN THE STATE'S
CONSTITUTIONAL POWER, THIS COURT LOOKS TO THE INCIDENCE OF THE TAX AND
ITS PRACTICAL OPERATION, AND NOT ITS CHARACTERIZATION BY THE STATE
COURTS.  P. 441. 

(B)  SO LONG AS THE EARNINGS ARE ACTUALLY DERIVED FROM CORPORATE
ACTIVITY WITHIN THE STATE, AND THEIR WITHDRAWAL FROM THE STATE AND
ULTIMATE DISTRIBUTION, IN WHOLE OR IN PART, TO STOCKHOLDERS ARE SUBJECT
TO SOME STATE CONTROL, THE CONDITIONS OF STATE POWER TO TAX ARE
SATISFIED.  P. 443. 

(C)  THERE IS NO CONSTITUTIONAL OBSTACLE EITHER TO THE STATE'S
DISTRIBUTING THE BURDEN OF THE TAX RATABLY AMONG THE STOCKHOLDERS, AS
THE ULTIMATE BENEFICIARIES OF THE CORPORATION'S ACTIVITIES WITHIN THE
STATE AND OF THE STATE'S RELINQUISHMENT OF CONTROL OVER THE WISCONSIN
EARNINGS, SO AS TO RENDER THE TAX PRO TANTO ONE ON THE STOCKHOLDERS'
INCOME; OR TO THE STATE'S IMPOSING ON THE CORPORATION THE DUTY OF
ACTING AS ITS AGENT FOR THE COLLECTION OF THE TAX, BY REQUIRING
DEDUCTION OF THE TAX FROM EARNINGS DISTRIBUTED AS DIVIDENDS.  P. 441. 

(D)  THE POWER TO TAX THE CORPORATION'S EARNINGS WITHIN THE STATE
INCLUDES THE POWER TO POSTPONE THE TAX UNTIL THE DISTRIBUTION OF THOSE
EARNINGS, AND TO MEASURE IT BY THE AMOUNTS DISTRIBUTED.  P. 441. 

(E)  RESIDENCE OF STOCKHOLDERS WITHIN THE STATE IS NOT ESSENTIAL TO
THE CONSTITUTIONAL LEVY OF A TAX TAKEN OUT OF SO MUCH OF THE
CORPORATION'S WISCONSIN EARNINGS AS IS DISTRIBUTED TO THEM.  P. 441. 

(F)  THE CONSTITUTIONAL VALIDITY OF THE TAX IS UNAFFECTED BY THE FACT
THAT THE POWER OF THE CORPORATION TO DECLARE DIVIDENDS WAS CREATED AND
EXERCISED OUTSIDE OF THE STATE.  P. 443. 

(G)  WISCONSIN'S JURISDICTION TO IMPOSE THE TAX IS UNAFFECTED BY THE
FACT THAT THE STOCKHOLDERS ARE NOT REPRESENTED IN THE WISCONSIN
LEGISLATURE.  P. 443. 

(H)  CONNECTICUT GENERAL INS. CO. V. JOHNSON, 303 U.S. 77,
DISTINGUISHED.  P. 444. 

(I)  THIS COURT IS CONCERNED NOT WITH THE WISDOM OR FAIRNESS OF THE
TAX BUT ONLY WITH THE POWER OF THE STATE TO LAY IT.  P. 444. 

3.  THOUGH THE DIVIDENDS WERE PAID IN PART FROM CORPORATE SURPLUS
EARNED PRIOR TO THE ENACTMENT OF THE TAX STATUTE, THE TAXABLE EVENT -
DISTRIBUTION OF DIVIDENDS FROM WISCONSIN EARNINGS - OCCURRED
SUBSEQUENTLY, AND HENCE NO QUESTION OF RETROACTIVE APPLICATION IS
INVOLVED.  P. 445. 

4.  WHETHER THE FORMULA FOR ASSESSING THE TAX WAS AUTHORIZED BY THE
STATUTE IS A QUESTION THE DECISION OF WHICH BY THE STATE COURT IS
BINDING HERE.  P. 445. 

INTERNATIONAL HARVESTER CO. V. WISCONSIN DEPARTMENT OF TAXATION. 

NO. 620.  APPEAL FROM THE SUPREME COURT OF WISCONSIN* . 

*TOGETHER WITH NO. 621, MINNESOTA MINING & MANUFACTURING CO. V.
WISCONSIN DEPARTMENT OF TAXATION, ALSO ON APPEAL FROM THE SUPREME COURT
OF WISCONSIN. 

APPEALS FROM THE AFFIRMANCE OF JUDGMENTS SUSTAINING ASSESSMENTS OF
STATE TAXES. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THESE CASES COME HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 344(A), FROM JUDGMENTS OF THE SUPREME COURT OF
WISCONSIN, REVIEWING AND SUSTAINING ASSESSMENTS BY APPELLEE, THE
WISCONSIN DEPARTMENT OF TAXATION, OF THE WISCONSIN PRIVILEGE DIVIDEND
TAX IMPOSED WITH RESPECT TO APPELLANTS, WHICH ARE FOREIGN CORPORATIONS
DOING BUSINESS IN WISCONSIN.  243 WIS. 198, 211.  THE APPELLANTS
PRESENT AGAIN, BUT IN A NEW ASPECT, THE SUBSTANCE OF THE QUESTION
DECIDED IN WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435.  IN THAT CASE WE
SUSTAINED THE CONSTITUTIONALITY, UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, OF THE WISCONSIN PRIVILEGE DIVIDEND TAX, SEC. 3
OF CH. 505 OF WISCONSIN LAWS OF 1935 AS AMENDED BY CH. 552, WISCONSIN
LAWS OF 1935.  FN1  THE TAX IS IMPOSED WITH RESPECT TO BOTH FOREIGN AND
DOMESTIC CORPORATIONS DOING BUSINESS WITHIN THE STATE "FOR THE
PRIVILEGE OF DECLARING AND RECEIVING DIVIDENDS" OUT OF INCOME DERIVED
FROM PROPERTY LOCATED AND BUSINESS TRANSACTED IN THE STATE.  THE PAYOR
CORPORATION IS REQUIRED TO DEDUCT THE TAX FROM THE DIVIDENDS PAYABLE TO
BOTH RESIDENT AND NON-RESIDENT STOCKHOLDERS. 

APPELLANTS ARE RESPECTIVELY A NEW JERSEY AND A DELAWARE CORPORATION
DOING BUSINESS IN WISCONSIN.  APPELLEE HAS ASSESSED THE PRIVILEGE
DIVIDEND TAX WITH RESPECT TO DIVIDENDS DECLARED AND PAID BY APPELLANT
HARVESTER COMPANY TO ITS STOCKHOLDERS, INCLUDING NON-RESIDENTS, BETWEEN
DECEMBER 2, 1935 AND OCTOBER 15, 1937, INCLUSIVE, AND ON DIVIDENDS
SIMILARLY DECLARED AND PAID BY APPELLANT MINNESOTA MINING COMPANY IN
THE YEARS 1936 TO 1940, INCLUSIVE.  IN THE CASE OF EACH APPELLANT THE
TAX AS ASSESSED WAS MEASURED BY SO MUCH OF THE DIVIDENDS AS WERE
DERIVED FROM THE PORTION OF THE CORPORATE SURPLUS ATTRIBUTED BY THE TAX
AUTHORITIES TO INCOME EARNED BY THE CORPORATION IN WISCONSIN.  THE
DIVIDENDS WERE DECLARED AT DIRECTORS' MEETINGS HELD OUTSIDE THE STATE,
AND THE DIVIDEND CHECKS WERE DRAWN ON BANK ACCOUNTS OUTSIDE THE STATE. 

IN THE PENNEY CASE WE SUSTAINED THE TAX IN THE CASE OF A DELAWARE
CORPORATION DOING BUSINESS IN WISCONSIN, BUT HAVING ITS PRINCIPAL
OFFICE IN NEW YORK, HOLDING ITS MEETINGS AND VOTING ITS DIVIDENDS
THERE, AND DRAWING ITS DIVIDEND CHECKS ON NEW YORK BANK ACCOUNTS.  IN
CONSIDERING THE INCIDENCE OF THE TAX IN WISCONSIN, WHICH COULD AFFORD A
BASIS FOR THE TAXATION THERE ALTHOUGH THE DECLARATION AND PAYMENT OF
THE DIVIDEND TOOK PLACE OUTSIDE THE STATE, THIS COURT POINTED OUT THAT
THE PRACTICAL OPERATION OF THE TAX IS TO IMPOSE AN ADDITIONAL TAX ON
CORPORATE EARNINGS WITHIN WISCONSIN, BUT TO POSTPONE THE LIABILITY FOR
PAYMENT OF THE TAX UNTIL SUCH EARNINGS ARE PAID OUT IN DIVIDENDS, AND
WE ADDED, 311 U.S. AT P. 442:  "IN A WORD, BY ITS GENERAL INCOME TAX
WISCONSIN TAXES CORPORATE INCOME THAT IS TAKEN IN; BY THE PRIVILEGE
DIVIDEND TAX OF 1935 WISCONSIN SUPERIMPOSED UPON THIS INCOME TAX A TAX
ON CORPORATE INCOME THAT IS PAID OUT." 

SINCE OUR DECISION IN THE PENNEY CASE, THE WISCONSIN SUPREME COURT
HAS SAID, IN BOTH THE PENNEY CASE ON REMAND, 238 WIS. 69, 72-73, AND IN
THE INTERNATIONAL HARVESTER CASE BELOW, 243 WIS. 198, 204-206, THAT
UNDER THE WISCONSIN CONSTITUTION, THE STATE HAS NO POWER TO LAY AN
INCOME TAX ON CITIZENS OF OTHER STATES, WHO ARE NOT DOING BUSINESS IN
WISCONSIN, AND THAT THE TAX IS NOT ON THE INCOME OF THE CORPORATION. 
AND IN WISCONSIN GAS CO. V. DEPARTMENT OF TAXATION, 243 WIS. 216, 10
N.W.2D 140; CF. BLIED V. WISCONSIN FOUNDRY CO., 243 WIS. 221, 10 N.W.2D
142, THE COURT HELD THAT THE BURDEN OF THE TAX IS IMPOSED UPON THE
STOCKHOLDERS SO THAT THE CORPORATION IS NOT ENTITLED TO DEDUCT THE
PRIVILEGE TAX FROM GROSS INCOME AS A BUSINESS EXPENSE, IN ARRIVING AT
NET TAXABLE INCOME UNDER THE STATE'S INCOME TAX LAW.  IN THE WISCONSIN
GAS COMPANY CASE, SUPRA, THE COURT SAID, AT P. 220-1:  "WE ARE CERTAIN
OF THREE THINGS:  (1) THAT THE BURDEN OF THE TAX IS SPECIFICALLY LAID
UPON THE STOCKHOLDER; (2) THAT THE CORPORATION DECLARING THE DIVIDEND
MUST DEDUCT THE TAX FROM THE DIVIDEND AND MAY NOT UNDER ANY
CIRCUMSTANCES TREAT THE TAX AS A NECESSARY EXPENSE OF DOING BUSINESS
(FOR STATE INCOME TAX PURPOSES); (3) THAT THE POWER TO LEVY THE TAX SO
CONSTRUED WAS AUTHORITATIVELY ESTABLISHED IN THE PENNEY CASE." 

FROM THIS, APPELLANTS ARGUE THAT THE STATE COURT HAS NOW CONCLUSIVELY
DECLARED THAT THE TAX IS NOT ON INCOME OF THE CORPORATION, BUT ONLY ON
THE STOCKHOLDERS' PRIVILEGE OF RECEIVING DIVIDENDS, AND THAT IT MUST BE
DEDUCTED FROM THE DIVIDENDS BEFORE THEIR PAYMENT TO THE STOCKHOLDERS. 
APPELLANTS RENEW THE CONTENTIONS URGED IN THE PENNEY CASE THAT SINCE
THE DECLARATIONS OF THE DIVIDENDS HERE IN QUESTION WERE MADE OUTSIDE
THE STATE AND THE NON-RESIDENT STOCKHOLDERS RECEIVED THEIR DIVIDENDS
OUTSIDE THE STATE, THE TAXING STATUTE AS APPLIED IN THESE CASES
INFRINGES DUE PROCESS BY IMPOSING THE TAX ON STOCKHOLDERS AND ON
ACTIVITIES AND OBJECTS OUTSIDE THE TERRITORY OF THE STATE OF WISCONSIN,
AND CONSEQUENTLY OUTSIDE ITS LEGISLATIVE JURISDICTION.  COMPARE
CONNECTICUT GENERAL INS. CO. V. JOHNSON, 303 U.S. 77.  TO THIS IS ADDED
THE FURTHER ARGUMENT, NOT PRESENTED IN THE PENNEY CASE, THAT THE TAX
VIOLATES THE FOURTEENTH AMENDMENT BECAUSE RETROACTIVELY APPLIED TO AND
MEASURED BY WISCONSIN INCOME WHICH WAS EARNED AND CARRIED TO
APPELLANTS' SURPLUS ACCOUNTS BEFORE THE ENACTMENT OF THE STATUTE. 

FOR PRESENT PURPOSES WE ASSUME THAT THE STATUTE, BY DIRECTING
DEDUCTION OF THE TAX FROM DECLARED DIVIDENDS, DISTRIBUTES THE TAX
BURDEN AMONG THE STOCKHOLDERS DIFFERENTLY THAN IF THE CORPORATION HAD
MERELY PAID THE TAX FROM ITS TREASURY AND THAT THE TAX IS THUS, IN
POINT OF SUBSTANCE, LAID UPON AND PAID BY THE STOCKHOLDERS, SOME OF
WHOM MIGHT NOT BEAR THE BURDEN OF THE TAX AT ALL IF, WITHOUT MORE, IT
WERE PAID OUT OF THE CORPORATE TREASURY.  THIS IS OBVIOUSLY THE CASE
HERE WITH RESPECT TO THE DEDUCTIONS FROM DIVIDENDS ON APPELLANT
HARVESTER'S PREFERRED STOCK, SINCE NORMALLY THE ECONOMIC WEIGHT OF
TAXES PAID BY THE CORPORATION WOULD BE BORNE BY ITS COMMON
STOCKHOLDERS. 

IF SUCH IS THE NATURE OF THE TAX, A QUESTION PRELIMINARY TO
DETERMINING ITS VALIDITY IS WHETHER APPELLANTS HAVE STANDING TO URGE
HERE THE CONSTITUTIONAL OBJECTIONS OF THEIR STOCKHOLDERS, WHO ARE NOT
PARTIES TO THE PRESENT SUITS AND WHO ALONE MAY BE AFFECTED ADVERSELY BY
THE TAX.  FOR APPELLANTS ARE PERMITTED TO REIMBURSE THEMSELVES FOR THE
AMOUNTS, WHICH THEY MUST PAY TO THE STATE, BY APPROPRIATE DEDUCTIONS
FROM THE DIVIDENDS BELONGING TO THE STOCKHOLDERS.  APPELLANTS' FAILURE
IN THESE CASES TO MAKE THE DEDUCTIONS WAS BY THEIR OWN CHOICE AND NOT
BY COMPULSION OF THE STATUTE.  BUT AS THE ONLY WAY BY WHICH APPELLANTS
CAN AVOID THE PAYMENT OF THE TAX FROM THEIR OWN FUNDS IS BY COLLECTING
IT FROM THEIR STOCKHOLDERS' DIVIDENDS AND AS APPELLANTS WOULD REMAIN
LIABLE TO THE STOCKHOLDERS, CERTAINLY TO THE PREFERRED STOCKHOLDERS,
FOR THE AMOUNTS OF THE DEDUCTIONS IF NOT LAWFULLY TAKEN, THEY ARE, IN
EITHER ASPECT, ADVERSELY AFFECTED BY OBEDIENCE TO THE STATUTE, IF IT IS
UNCONSTITUTIONAL.  WE THEREFORE CONCLUDE THAT APPELLANTS HAVE STANDING
TO CHALLENGE THE CONSTITUTIONALITY OF THE STATUTE.  CF. ANDERSON
NATIONAL BANK V. LUCKETT, 321 U.S. 233, 242-3. 

FOR THE REASONS STATED IN THE PENNEY CASE WE DO NOT DOUBT THAT A
STATE HAS CONSTITUTIONAL POWER TO MAKE A LEVY UPON A CORPORATION,
MEASURED BY SO MUCH OF ITS EARNINGS FROM WITHIN THE STATE AS IT
DISTRIBUTES IN DIVIDENDS, AND TO MAKE THE TAXABLE EVENT THE
CORPORATION'S RELINQUISHMENT OF THE EARNINGS TO ITS STOCKHOLDERS.  THAT
POWER IS NOT DIMINISHED OR ALTERED BY THE FACT THAT THE STATE COURTS,
FOR PURPOSES OF THEIR OWN, DENOMINATE THE LEVY A TAX ON THE PRIVILEGE
OF DECLARING AND RECEIVING DIVIDENDS, OR THAT THEY DECLINE TO CALL IT
AN INCOME TAX.  IN DETERMINING WHETHER A TAX IS WITHIN THE STATE'S
CONSTITUTIONAL POWER, WE LOOK TO THE INCIDENCE OF THE TAX AND ITS
PRACTICAL OPERATION, AND NOT ITS CHARACTERIZATION BY STATE COURTS. 
SHAFFER V. CARTER, 252 U.S. 37, 55 AND CASES CITED; LAWRENCE V. STATE
TAX COMMISSION, 286 U.S. 276, 280 AND CASES CITED. 

NOR DO WE PERCEIVE ANY CONSTITUTIONAL OBSTACLE, EITHER TO THE STATE'S
DISTRIBUTING THE BURDEN OF THE TAX RATABLY AMONG THE STOCKHOLDERS, AS
THE ULTIMATE BENEFICIARIES OF THE CORPORATION'S ACTIVITIES WITHIN THE
STATE, AND OF THE STATE'S RELINQUISHMENT OF CONTROL OVER THE WISCONSIN
EARNINGS, SO AS TO RENDER THE TAX PRO TANTO ONE ON THE STOCKHOLDERS'
INCOME, OR TO THE STATE'S IMPOSING ON THE CORPORATION THE DUTY OF
ACTING AS ITS AGENT FOR THE COLLECTION OF THE TAX, BY REQUIRING
DEDUCTION OF THE TAX FROM EARNINGS DISTRIBUTED AS DIVIDENDS. 

THE POWER TO TAX THE CORPORATION'S EARNINGS INCLUDES THE POWER TO
POSTPONE THE TAX UNTIL THE DISTRIBUTION OF THOSE EARNINGS, AND TO
MEASURE IT BY THE AMOUNTS DISTRIBUTED.  COMPARE CURRY V. MCCANLESS, 307
U.S. 357, 370.  IN TAXING SUCH DISTRIBUTIONS, WISCONSIN MAY IMPOSE THE
BURDEN OF THE TAX EITHER UPON THE CORPORATION OR UPON THE STOCKHOLDERS
WHO DERIVE THE ULTIMATE BENEFIT FROM THE CORPORATION'S WISCONSIN
ACTIVITIES.  PERSONAL PRESENCE WITHIN THE STATE OF THE STOCKHOLDER
TAXPAYERS IS NOT ESSENTIAL TO THE CONSTITUTIONAL LEVY OF A TAX TAKEN
OUT OF SO MUCH OF THE CORPORATION'S WISCONSIN EARNINGS AS IS
DISTRIBUTED TO THEM.  A STATE MAY TAX SUCH PART OF THE INCOME OF A NON
RESIDENT AS IS FAIRLY ATTRIBUTABLE EITHER TO PROPERTY LOCATED IN THE
STATE OR TO EVENTS OR TRANSACTIONS WHICH, OCCURRING THERE, ARE SUBJECT
TO STATE REGULATION AND WHICH ARE WITHIN THE PROTECTION OF THE STATE
AND ENTITLED TO THE NUMEROUS OTHER BENEFITS WHICH IT CONFERS.  COMPARE
SHAFFER V. CARTER, SUPRA, AND TRAVIS V. YALE & TOWNE MFG. CO., 252 U.S.
60, WITH LAWRENCE V. STATE TAX COMMISSION, SUPRA, AND NEW YORK EX REL.
COHN V. GRAVES, 300 U.S. 308.  AND THE PRIVILEGE OF RECEIVING DIVIDENDS
DERIVED FROM CORPORATE ACTIVITIES WITHIN THE STATE CAN HAVE NO GREATER
IMMUNITY THAN THE PRIVILEGE OF RECEIVING ANY OTHER INCOME FROM SOURCES
LOCATED THERE. 

WE THINK THAT WISCONSIN MAY CONSTITUTIONALLY TAX THE WISCONSIN
EARNINGS DISTRIBUTED AS DIVIDENDS TO THE STOCKHOLDERS.  IT HAS AFFORDED
PROTECTION AND BENEFITS TO APPELLANTS' CORPORATE ACTIVITIES AND
TRANSACTIONS WITHIN THE STATE.  THESE ACTIVITIES HAVE GIVEN RISE TO THE
DIVIDEND INCOME OF APPELLANTS' STOCKHOLDERS AND THIS INCOME FAIRLY
MEASURES THE BENEFITS THEY HAVE DERIVED FROM THESE WISCONSIN
ACTIVITIES.  THERE IS NO CONTENTION HERE THAT THE FORMULA OF
APPORTIONMENT DOES NOT FAIRLY REFLECT THE PROPER PROPORTION OF
APPELLANTS' EARNINGS ATTRIBUTABLE TO THEIR WISCONSIN ACTIVITIES AND
TRANSACTIONS.  WISCONSIN MAY IMPOSE A MEASURE OF CONTROL UPON THE
CORPORATION THERE WITH RESPECT TO ITS WITHDRAWAL OF ITS EARNINGS FROM
THE STATE, AND ALSO MAY, FOR THE PROTECTION OF THE INTERESTS OF THE
STATE AND OF ITS CITIZENS, REGULATE TO SOME EXTENT THE DECLARATION AND
DISTRIBUTION OF DIVIDENDS BY A FOREIGN CORPORATION, CERTAINLY WITH
RESPECT TO ITS WISCONSIN EARNINGS.  SEE, E.G., JUDGE CARDOZO IN GERMAN
AMERICAN COFFEE CO. V. DIEHL, 216 N.Y. 57, 109 N.E. 875; NEW YORK STOCK
CORPORATION LAW, SEC. 114.  THE EARNINGS IN WISCONSIN, THEIR WITHDRAWAL
FROM WISCONSIN AND THEIR DISTRIBUTION IN THE FORM OF DIVIDENDS HAVE
RESULTED IN THE RECEIPT OF INCOME BY THE STOCKHOLDER-TAXPAYERS AND IT
IS WISCONSIN'S RELATION TO ALL WHICH PERMITS IT TO LEVY THE TAX.  IT
MAY CONDITION THE PRIVILEGE OF EARNING AND DISPOSING OF THE WISCONSIN
EARNINGS UPON THE PAYMENT OF A TAX MEASURED BY AND COLLECTED FROM THE
EARNINGS TO BE DISTRIBUTED AS DIVIDENDS.  WISCONSIN V. J.C. PENNEY CO.,
SUPRA. 

THE FACTS THAT WISCONSIN CANNOT PREVENT THE WITHDRAWAL OF THE
EARNINGS FROM THE STATE OR THE DECLARATION OF THE DIVIDENDS, IF THEY BE
THE FACTS, HAVE NO BEARING ON ITS RIGHT TO MEASURE, IN TERMS OF TAXES,
BOTH THE BENEFITS WHICH IT HAS CONFERRED ON THE STOCKHOLDERS IN THEIR
RELATIONS WITH THE STATE, AND THE ACTIVITIES OR TRANSACTIONS WHICH ARE
WITHIN THE REACH OF ITS REGULATORY POWER.  EQUITABLE LIFE SOCIETY V.
PENNSYLVANIA, 238 U.S. 143, 147; CF. MR. JUSTICE HOLMES DISSENTING IN
COMPANIA DE TABACOS V. COLLECTOR, 275 U.S. 87, 99, 100. 

THAT THE DISTRIBUTION OF WISCONSIN EARNINGS WAS EFFECTED BY THE
EXERCISE OUTSIDE WISCONSIN OF THE POWER TO DECLARE DIVIDENDS DOES NOT
DEPRIVE IT OF ITS POWER TO TAKE TOLL FROM THE INCOME EARNED THERE UPON
ITS DISTRIBUTION TO THE STOCKHOLDERS.  SEE BULLEN V. WISCONSIN, 240
U.S. 625; CURRY V. MCCANLESS, SUPRA, 366-370 AND CASES CITED; GRAVES V.
ELLIOTT, 307 U.S. 383; STATE TAX COMMISSION V. ALDRICH, 316 U.S. 174,
180.  AND THE FACT THAT THE STOCKHOLDER-TAXPAYERS NEVER ENTER WISCONSIN
AND ARE NOT REPRESENTED IN THE WISCONSIN LEGISLATURE  FN2  CANNOT
DEPRIVE IT OF ITS JURISDICTION TO TAX.  IT HAS NEVER BEEN THOUGHT THAT
RESIDENCE WITHIN A STATE OR COUNTY IS A SINE QUA NON OF THE POWER TO
TAX.  CF. COOK V. TAIT, 265 U.S. 47.  SO LONG AS THE EARNINGS ACTUALLY
ARISE THERE, AND THEIR WITHDRAWAL FROM THE STATE AND ULTIMATE
DISTRIBUTION, IN WHOLE OR IN PART, TO STOCKHOLDERS ARE SUBJECT TO SOME
STATE CONTROL, THE CONDITIONS OF STATE POWER TO TAX ARE SATISFIED, SEE
SHAFFER V. CARTER, SUPRA, 55; STATE TAX COMMISSION V. ALDRICH, SUPRA;
COMPARE MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 429, EVEN THOUGH SOME
PRACTICALLY EFFECTIVE DEVICE BE NECESSARY IN ORDER TO ENABLE THE STATE
TO COLLECT ITS TAX - HERE BY IMPOSING ON THE CORPORATION THE DUTY TO
WITHHOLD THE TAX ON SO MUCH OF THE EARNINGS WITHDRAWN FROM THE STATE AS
MAY BE DISTRIBUTED IN DIVIDENDS.  IMPOSITION OF THIS REQUIREMENT ON THE
CORPORATION TRANSGRESSES NO CONSTITUTIONAL LIMITATIONS.  NELSON V.
SEARS, ROEBUCK & CO., 312 U.S. 359, 364; NELSON V. MONTGOMERY WARD &
CO., 312 U.S. 373. 

APPELLANTS PRESS WITH VIGOR, AS CONTROLLING DECISION HERE, THE DENIAL
OF THE STATE'S POWER TO TAX IN CONNECTICUT GENERAL INS. CO. V. JOHNSON,
SUPRA.  IN THAT CASE CALIFORNIA SOUGHT TO LEVY A TAX ON GROSS RECEIPTS
DERIVED FROM CONTRACTS MADE AND TO BE PERFORMED IN CONNECTICUT BY A
CONNECTICUT CORPORATION DOING OTHER BUSINESS IN CALIFORNIA.  BUT AS WE
SAID OF THE JOHNSON CASE IN THE PENNEY CASE, SUPRA, 446:  "IN THE
PRECISE CIRCUMSTANCES PRESENTED BY THE RECORD IT WAS FOUND THAT THE TAX
NEITHER IN ITS MEASURE NOR IN ITS INCIDENCE WAS RELATED TO CALIFORNIA
TRANSACTIONS.  HERE, ON THE CONTRARY, THE INCIDENCE OF THE TAX AS WELL
AS ITS MEASURE IS TIED TO THE EARNINGS WHICH THE STATE OF WISCONSIN HAS
MADE POSSIBLE,  ...  " AND BOTH THE EARNINGS AND THEIR DISPOSITION ARE
SUBJECT TO STATE CONTROL AND HENCE ITS POWER TO TAX. 

IT SHOULD BE EMPHASIZED ONCE AGAIN THAT THE FOURTEENTH AMENDMENT DOES
NOT IN TERMS OR IN EFFECT PROHIBIT UNWISE TAXES, MERELY BECAUSE THEY
ARE UNWISE, OR UNFAIR OR BURDENSOME TAXES, MERELY BECAUSE THEY ARE
UNFAIR OR BURDENSOME.  THE WISDOM OR FAIRNESS OF THE TAX BEFORE US ARE
NOT MATTERS SUBJECT TO OUR CONTROL OR REVISION.  WE ARE ONLY CONCERNED
WITH THE POWER OF THE STATE TO LAY THE TAX.  THE POWER TO TAX "IS AN
INCIDENT OF SOVEREIGNTY, AND IS COEXTENSIVE WITH THAT TO WHICH IT IS AN
INCIDENT.  ALL SUBJECTS OVER WHICH THE SOVEREIGN POWER OF A STATE
EXTENDS, ARE OBJECTS OF TAXATION; ...  "  MCCULLOCH V. MARYLAND, SUPRA,
429; CURRY V. MCCANLESS, SUPRA, 366. 

WE CONCLUDE THAT APPELLANTS' STOCKHOLDERS CAN HAVE NO CONSTITUTIONAL
OBJECTION TO THE WITHHOLDING BY WISCONSIN OF A TAX MEASURED BY THEIR
DIVIDENDS DISTRIBUTED FROM WISCONSIN EARNINGS. 

APPELLANTS DO NOT DENY THAT THE DIVIDENDS ARE DERIVED FROM EARNINGS
FROM WITHIN THE STATE OF WISCONSIN, BUT IT IS URGED THAT SOME OF THEM
AT LEAST WERE PAID FROM CORPORATE SURPLUS EARNED AND SET ASIDE IN YEARS
BEFORE THE TAXING STATUTE WAS ENACTED.  BUT SINCE THE TAXABLE EVENT,
THE DISTRIBUTION OF DIVIDENDS PAID FROM EARNINGS, AND THE DEDUCTION OF
THE TAX FROM THEM OCCURRED SUBSEQUENT TO THE ENACTMENT OF THE TAXING
STATUTE, NO QUESTION OF ITS RETROACTIVE APPLICATION IS INVOLVED. 

THE CONTENTION OF APPELLANT, THE HARVESTER COMPANY, THAT THE FORMULA
FOR ASSESSING THE TAX IS NOT ONE AUTHORIZED BY THE STATUTE IS NOT OPEN
TO CONSIDERATION HERE.  THE STATE SUPREME COURT HAS CONSTRUED AND
APPLIED THE STATUTE AND BY ITS CONSTRUCTION WE ARE BOUND.  MEYER V.
WELLS, FARGO & CO., 223 U.S. 298 AND DAVIS V. WALLACE, 257 U.S. 478, ON
WHICH APPELLANT RELIES, WERE CASES COMING HERE FROM THE LOWER FEDERAL
COURTS, IN WHICH THIS COURT WAS REQUIRED TO PLACE ITS OWN CONSTRUCTION
ON A STATE STATUTE WHICH HAD NOT BEEN DEFINITIVELY CONSTRUED BY THE
STATE COURTS.  AFFIRMED. 

FN1  THE STATUTE WAS RE-ENACTED BY SEC. 3 OF CH. 309 OF WIS. LAWS OF
1937; SEC. 1 OF CH. 198 OF WIS. LAWS OF 1939; SEC. 3 OF CH. 63 OF WIS.
LAWS OF 1941; AND SEC. 2 OF CH. 367 OF WIS. LAWS OF 1943. 

FN2  THE WISCONSIN PRIVILEGE DIVIDEND TAX DOES NOT DISCRIMINATE
AGAINST NON-RESIDENTS OR FOREIGN CORPORATIONS, OR PLACE AN UNDUE BURDEN
ON THEM WITHOUT A CORRESPONDING BURDEN ON RESIDENTS OR DOMESTIC
CORPORATIONS.  HENCE THIS IS NOT A CASE WHERE "LEGISLATIVE ACTION IS
NOT LIKELY TO BE SUBJECTED TO THOSE POLITICAL RESTRAINTS WHICH ARE
NORMALLY EXERTED ON LEGISLATION WHERE IT AFFECTS ADVERSELY SOME
INTERESTS WITHIN THE STATE."  SEE SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177, 184-5, N. 2 AND CASES CITED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE JACKSON, DISSENTING: 

THE FACTS OF ONE OF THESE CASES WILL MAKE CLEAR THE GROUNDS UPON
WHICH I DISSENT. 

THE INTERNATIONAL HARVESTER COMPANY IS INCORPORATED UNDER THE LAWS OF
NEW JERSEY.  ITS HEAD BUSINESS OFFICE IS IN CHICAGO, ILLINOIS.  IT HAS
QUALIFIED AND HAS BEEN ADMITTED TO DO BUSINESS IN WISCONSIN AND IN
EVERY STATE IN THE UNION EXCEPT NEVADA.  IT HAS SALES BRANCHES AND
MANUFACTURING PLANTS IN WISCONSIN, AND IN MANY OTHER STATES.  PROCEEDS
OF SALES AND RECEIPTS FROM OPERATIONS IN WISCONSIN AND IN EVERY OTHER
STATE ARE SENT TO THE CORPORATION TREASURY IN CHICAGO AND COMMINGLED IN
GENERAL FUNDS WITHOUT SEGREGATION OR EARMARKING AS TO STATE OF ORIGIN. 

MORE THAN 32,000 STOCKHOLDERS ARE OWNERS OF THIS ENTERPRISE.  THEY
ARE DOMICILED IN EVERY STATE OF THE UNION, LESS THAN 2 PER CENT OF THEM
IN WISCONSIN.  UNDER THE CORPORATION'S CHARTER AND THE APPLICABLE LAW
OF NEW JERSEY THE STOCKHOLDERS MAY BE PAID DIVIDENDS ONLY FROM ITS
SURPLUS OR NET PROFITS.  EVERY CORPORATE ACT CONNECTED WITH PAYMENT OF
DIVIDENDS TAKES PLACE IN CHICAGO.  THERE THE DIRECTORS MEET TO DECLARE
THEM, THERE THE CHECKS ARE DRAWN AND MAILED.  THEY ARE PAID OUT OF THE
CORPORATION'S GENERAL FUNDS ON DEPOSIT IN CHICAGO OR NEW YORK. 

IN 1935 WISCONSIN ENACTED A "PRIVILEGE DIVIDEND TAX."  IT PROVIDES,
WITH EXCEPTIONS NOT MATERIAL: 

"SECTION 3.  PRIVILEGE DIVIDEND TAX.  (1) FOR THE PRIVILEGE OF
DECLARING AND RECEIVING DIVIDENDS, OUT OF INCOME DERIVED FROM PROPERTY
LOCATED AND BUSINESS TRANSACTED IN THIS STATE, THERE IS HEREBY IMPOSED
A TAX EQUAL TO 3 PER CENT OF THE AMOUNT OF SUCH DIVIDENDS DECLARED AND
PAID BY ALL CORPORATIONS (FOREIGN AND LOCAL).  ...  SUCH TAX SHALL BE
DEDUCTED AND WITHHELD FROM SUCH DIVIDENDS PAYABLE TO RESIDENTS AND
NONRESIDENTS BY THE PAYOR CORPORATION. 

     .         .         .        .         . 

"(3)  EVERY SUCH CORPORATION HEREBY MADE LIABLE FOR SUCH TAX, SHALL
DEDUCT THE AMOUNT OF SUCH TAX FROM THE DIVIDENDS SO DECLARED. 

"(4)  IN THE CASE OF CORPORATIONS DOING BUSINESS WITHIN AND WITHOUT
THE STATE OF WISCONSIN, SUCH TAX SHALL APPLY ONLY TO DIVIDENDS DECLARED
AND PAID OUT OF INCOME DERIVED FROM BUSINESS TRANSACTED AND PROPERTY
LOCATED WITHIN THE STATE OF WISCONSIN.  ...  "  WIS. STAT. (1941) SEC.
71.60. 

UNDER THIS LAST PROVISION THE STATE BY FORMULA NOT NOW IMPORTANT
APPORTIONS AMONG THE STATES THE SURPLUS FROM WHICH DIVIDENDS MAY BE
PAID AND THUS DETERMINES A PROPORTION OF THE DIVIDEND ATTRIBUTABLE TO
EARNINGS IN WISCONSIN.  AS APPLIED AND SUSTAINED IN THIS CASE, THE
SHORT OF THE MATTER IS THIS:  WISCONSIN SAYS IT MAY TAX 32,000
STOCKHOLDERS, 98 PER CENT OF WHOM RESIDE IN OTHER STATES.  IT TAXES
THEM WHEN AND BECAUSE THEY RECEIVE A DIVIDEND FROM A CORPORATION NOT IN
ITS INTERNAL AFFAIRS SUBJECT TO ITS LAWS, BY ACTS NOT ONE OF WHICH IS
PERFORMED WITHIN ITS BORDERS. 

AFTER THE SUPREME COURT OF WISCONSIN HELD THIS TAX INVALID IT WAS
REINSTATED BY THIS COURT.  WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435. 
THIS WAS DONE ON THE THEORY THAT THE TAX WAS NOT WHAT WISCONSIN CALLED
IT BUT WAS IN SUBSTANCE AN INCOME TAX ON THE CORPORATION, DEFERRED
UNTIL THE INCOME WAS DISTRIBUTED AND MEASURED BY THE AMOUNT OF THE
DISTRIBUTION.  AS SO INTERPRETED, IT WAS THE FEDERAL UNDISTRIBUTED
PROFITS TAX IN REVERSE; IT WAS A DISTRIBUTED PROFITS TAX.  BUT THE
WISCONSIN COURT HAS RESPECTFULLY BUT FIRMLY INSISTED THAT IT KNOWS WHOM
WISCONSIN IS TAXING AND WHY.  IT SAYS THIS IS NOT AN INCOME TAX, THAT
IT IS NO TAX ON THE CORPORATION, BUT IS A TAX ON THE STOCKHOLDER WHEN
AND BECAUSE HE RECEIVES A DIVIDEND. 

I THINK THE PARTIES ARE ENTITLED TO HAVE THE CONSTITUTIONALITY OF
THIS FAR-REACHING TAX DECIDED ON THE ASSUMPTION THAT IT IS JUST WHAT
THE WISCONSIN LEGISLATURE AND SUPREME COURT SAY IT IS.  IF WE DO, THE
QUESTION IS WHETHER A STATE MAY TAX NONRESIDENT STOCKHOLDERS FOR
RECEIVING FROM A FOREIGN CORPORATION A DIVIDEND FROM ITS SURPLUS OR
UNDIVIDED PROFITS MERELY BECAUSE SOME TIME IN THE PAST A PORTION OF THE
SURPLUS WAS EARNED IN THE STATE. 

WE MUST PUT OUT OF CONSIDERATION ENTIRELY REASONING BY WHICH WE
SUSTAIN STATE TAXATION OF INCOME OF THE CORPORATION.  THESE DIVIDENDS
ARE NOT AND CANNOT BE REGARDED AS INCOME OF THE CORPORATION WITHIN ANY
LEGAL OR ACCOUNTING DEFINITION.  THESE SURPLUS FUNDS CONSTITUTED INCOME
ONCE - AT THE MOMENT OF RECEIPT - AND MAY BE COUNTED AS INCOME FOR ANY
PERIOD WHICH INCLUDES TIME OF RECEIPT.  BUT ONCE RECEIVED, THEY BECAME
CAPITAL FUNDS IN THE SENSE THAT EARNED SURPLUS BECOMES CAPITAL.  WHEN
THEY WERE DISTRIBUTED THEY WERE NOT INCOME OF THE CORPORATION.  THEY
WERE ITS SURPLUS CAPITAL FUNDS.  NOT EVEN THE POWER OF THIS COURT CAN
MAKE INCOME OF OUTGO.  TO SPEAK OF "A TAX ON CORPORATE INCOME THAT IS
PAID OUT" IS AS SELF-CONTRADICTORY AS TO SPEAK OF ROUND SQUARES. 

THESE DIVIDENDS OF COURSE ARE INCOME TO THE STOCKHOLDER, AND ANY
STATE WITH JURISDICTION TO TAX HIM MAY TAX THEM AS SUCH.  BUT I AM
UNABLE TO AGREE THAT HAVING "AFFORDED PROTECTION AND BENEFITS" TO A
CORPORATION GIVES JURISDICTION TO TAX THE INCOMES OF ALL ITS
STOCKHOLDERS.  NOR DO I THINK THAT BECAUSE THE STATE HAS ONCE PERMITTED
THE CORPORATION TO DO BUSINESS AND MAKE EARNINGS IN THE STATE ITS
TAXING POWER FOLLOWS THOSE EARNINGS INTO THE HANDS OF THIRD PERSONS TO
WHOM THEY MAY BE PAID.  A DIVIDEND WHEN DECLARED BECOMES A DEBT OF THE
CORPORATION, ENFORCEABLE AS ANY OTHER DEBT.  IF THERE IS POWER IN
WISCONSIN, BECAUSE FUNDS WERE EARNED THERE, TO TAX THE RECEIPT OF A
DIVIDEND, THERE IS NO REASON WHY IT SHOULD NOT ALSO HAVE POWER TO TAX
THE RECIPIENTS OF CORPORATE FUNDS AS WAGES, SALARIES, OR AS PAYMENT OF
ANY OTHER OBLIGATION. 

MOREOVER, THE COURT ITSELF APPARENTLY FEELS OBLIGED TO ABANDON THE
INCOME-TAX-ON-THE-CORPORATION THEORY IN ORDER TO AVOID THE OBJECTION OF
RETROACTIVITY.  IN CONSIDERING THIS ASPECT OF THE TAX IT SHIFTS TO A
"TAXABLE EVENT" THEORY WHICH PLACES THE EVENT AFTER THE ENACTMENT OF
THE STATUTE. 

I ALSO FIND IT DIFFICULT TO ACCEPT THE STATEMENT THAT THERE IS NO
"CONSTITUTIONAL OBSTACLE EITHER TO THE STATE'S DISTRIBUTING THE BURDEN
OF THE TAX RATABLY AMONG THE STOCKHOLDERS ...  OR TO THE STATE'S
IMPOSING ON THE CORPORATION THE DUTY OF ACTING AS ITS AGENT FOR THE
COLLECTION OF THE TAX.  ...  "  THE RELATIONS BETWEEN DIFFERENT CLASSES
OF STOCKHOLDERS IS FIXED BY THE CORPORATE CHARTER.  IF THIS IS A TAX ON
THE CORPORATION, IT IS CLEAR THAT ITS BURDEN FALLS UPON THE EQUITY
STOCKHOLDERS AND UPON THEM ALONE.  I DO NOT THINK THE STATE OF
WISCONSIN WOULD HAVE THE POWER TO PROVIDE THAT THE PREFERRED
STOCKHOLDERS OF A NEW JERSEY CORPORATION, DESPITE PROVISIONS OF ITS
CHARTER, SHOULD ASSUME A PART OF THE EQUITY BURDEN. 

AS SUPPORTING THIS TAX, THE OPINION OF THE COURT SAYS THAT WISCONSIN
MAY IMPOSE UPON THE CORPORATION "A MEASURE OF CONTROL  ...  WITH
RESPECT TO ITS WITHDRAWAL" OF THESE EARNINGS, AND THAT THEIR "ULTIMATE
DISTRIBUTION  ...  TO STOCKHOLDERS" IS "SUBJECT TO SOME STATE
CONTROL."  I DO NOT UNDERSTAND TO WHAT REFERENCE IS MADE.  THESE
EARNINGS LAWFULLY HAD BEEN ADDED TO SURPLUS OF A NEW JERSEY
CORPORATION, THEY WERE REPRESENTED BY FUNDS LAWFULLY TRANSFERRED TO
CHICAGO OR NEW YORK.  FROM THEM THE CORPORATION MADE THE DISTRIBUTION. 
WHAT CONTROL WISCONSIN HAD OVER THESE FUNDS IN THESE CIRCUMSTANCES I DO
NOT SEE. 

THE ACT IN QUESTION DOES NOT PURPORT TO BE ONE FOR THE PROTECTION OF
LOCAL CREDITORS AGAINST THE CORPORATION'S ILLEGAL PAYMENT OF DIVIDENDS
AS WAS THE ACT DEALT WITH BY JUDGE CARDOZO IN GERMAN-AMERICAN COFFEE
CO. V. DIEHL, 216 N.Y. 57, 109 N.E. 875.  THIS ACT ALTERS THE PURELY
INTERNAL RELATIONS OF DIFFERENT CLASSES OF STOCKHOLDERS WITHOUT IN THE
LEAST AFFECTING THEIR RELATION TO CREDITORS. 

IT IS IMPOSSIBLE TO RECONCILE THE TAXABLE-EVENT THEORY WITH THE
BENEFIT THEORY FOR SUPPORTING THIS TAX.  THE TAXABLE EVENT CLEARLY IS
THE PAYMENT OF THE DIVIDEND.  THE RIGHT TO MAKE SUCH PAYMENT IS NOT
DERIVED FROM WISCONSIN LAW.  THE ABILITY TO DO SO DOES NOT DEPEND ON
WISCONSIN EARNINGS.  THE EXISTENCE OF EARNINGS FOR THE PERIOD, OR OF AN
ACCUMULATED SURPLUS, FROM WISCONSIN EARNINGS ALONE WOULD NOT AUTHORIZE
SUCH A DIVIDEND.  THAT WOULD DEPEND ON NET ACCUMULATIONS FROM ALL
SOURCES AND SURPLUS FROM WISCONSIN MIGHT BE NEUTRALIZED BY LOSSES FROM
OPERATIONS ELSEWHERE.  IN SUCH A CASE IT IS CLEAR THIS STATUTE WOULD
NOT EVEN PURPORT TO TAX, ALTHOUGH WISCONSIN HAD EXTENDED EXACTLY THE
SAME PROTECTION TO THE OPERATIONS WITHIN THE STATE AS OTHERWISE. 
MOREOVER, IF EARNINGS WERE HAD IN WISCONSIN AND THERE WERE NET EARNINGS
OVERALL BUT THE CORPORATION SHOULD DECIDE TO ACCUMULATE THEM, THE
STATUTE WOULD NOT PURPORT TO LAY THE WISCONSIN TAX.  THESE FACTS MAKE
CLEAR THAT WISCONSIN IS DOING WHAT THE SUPREME COURT OF WISCONSIN SAID
IT WAS DOING.  IT LAYS A TAX UPON THE STOCKHOLDER'S DIVIDEND.  IT DOES
NOT TAX THE INCOME OF THE CORPORATION. 

I DO NOT SEE THAT THE WAY TO TAX THE DIVIDENDS OF NON-RESIDENT
STOCKHOLDERS CAN BE BRIDGED BY "SOME PRACTICALLY EFFECTIVE DEVICE"
NECESSARY "IN ORDER TO ENABLE THE STATE TO COLLECT ITS TAX - HERE BY
IMPOSING ON THE CORPORATION THE DUTY TO WITHHOLD THE TAX."  DO WE MEAN
THAT THE STATE MAY EMPOWER OR OBLIGATE A FOREIGN CORPORATION TO COLLECT
FOR IT TAXES IT IS WITHOUT POWER TO COLLECT ITSELF?  THE PHYSICAL POWER
TO GET THE MONEY DOES NOT SEEM TO ME A TEST OF THE RIGHT TO TAX.  MIGHT
DOES NOT MAKE RIGHT EVEN IN TAXATION.  TO HOLD THAT WHAT THE USE OF
OFFICIAL AUTHORITY MAY GET THE STATE MAY KEEP, AND THAT IF IT CANNOT
GET HOLD OF A NONRESIDENT STOCKHOLDER IT MAY HOLD THE COMPANY AS
HOSTAGE FOR HIM, IS STRANGE CONSTITUTIONAL DOCTRINE TO ME.    WHATEVER
RIGHTS WISCONSIN HAS TO REACH BEYOND ITS BORDERS AND TAX NONRESIDENTS
EVERY OTHER STATE HAS ALSO.  ONE WHO PUTS HIS SAVINGS TO WORK IN AN
ENTERPRISE OF NATIONAL SCOPE MAY BE SUBJECTED TO ANY NUMBER OF STATE
TAXES ON HIS DIVIDENDS UP TO FORTY-EIGHT.  ANY NUMBER UP TO FORTY-SEVEN
OF THEM MAY BE LEVIED BY STATES IN WHICH HE NEVER LIVED, NEVER WENT,
DID NO INDIVIDUAL BUSINESS, AND HAS NO VOTE.  REPRESENTATION IS THE
ORDINARY GUARANTY OF FAIRNESS IN TAXATION. 

I DO NOT THINK ANY FACT IN THIS CASE SHOWS JURISDICTION IN WISCONSIN
TO LAY A TAX ON A PRIVILEGE SHE DOES NOT GRANT AND COULD NOT DENY,
WHICH IS EXERCISED WHOLLY OUTSIDE OF HER BORDERS AND BY THOSE WHO ARE
NOT HER CITIZENS OR HER CORPORATE CREATURES.  I SEE NO FOUNDATION FOR
THE TAX WISCONSIN HAS LAID AND NO BETTER FOUNDATION FOR THE SUBSTITUTE
TAX THIS COURT HAS LAID.  I WOULD REVERSE THE JUDGMENTS BELOW. 
..END :





DE CASTRO V. BOARD OF COMM'RS, 322 U.S. 451 


NO. 349.  ARGUED APRIL 24, 1944.  - DECIDED MAY 29, 1944.  - 136 F.2D
419, AFFIRMED. 


1.  ON REVIEW BY THE FEDERAL COURTS, A DECISION OF THE SUPREME COURT
OF PUERTO RICO ON A QUESTION OF LOCAL LAW WILL BE REJECTED ONLY ON A
CLEAR SHOWING THAT THE RULE APPLIED BY THE INSULAR COURT DOES VIOLENCE
TO RECOGNIZED PRINCIPLES OF LOCAL LAW OR ESTABLISHED PRACTICES OF THE
LOCAL COMMUNITY.  DIAZ V. GONZALEZ, 261 U.S. 102, FOLLOWED.  PP. 455
456. 

2.  THE RULING IN BONET V. TEXAS COMPANY, 308 U.S. 463, THAT TO
JUSTIFY REVERSAL OF A DECISION OF THE SUPREME COURT OF PUERTO RICO ON A
MATTER OF LOCAL LAW, "THE ERROR MUST BE CLEAR OR MANIFEST; THE
INTERPRETATION MUST BE INESCAPABLY WRONG," DOES NOT WARRANT SUMMARY
DISPOSITION OF APPEALS FROM THE INSULAR COURT BUT IMPOSES ON THE
CIRCUIT COURT OF APPEALS AND ON THIS COURT THE DUTY TO EXAMINE AND
APPRAISE THE LOCAL LAW IN ITS SETTING, WITH THE SYMPATHETIC DISPOSITION
TO SAFEGUARD IN MATTERS OF LOCAL CONCERN THE ADAPTABILITY OF THE LAW TO
LOCAL PRACTICES AND NEEDS.  P. 458. 

3.  THE DEFERENCE DUE BY THE FEDERAL COURTS ON REVIEW OF DECISIONS OF
THE SUPREME COURT OF PUERTO RICO TO THAT COURT'S UNDERSTANDING OF
MATTERS OF LOCAL CONCERN IS DUE LIKEWISE BY THE FEDERAL DISTRICT COURT
FOR PUERTO RICO IN CASES THERE PENDING AND BY THE FEDERAL COURTS ON
APPEALS THEREFROM.  P. 459. 

4.  THE DECISION OF THE SUPREME COURT OF PUERTO RICO THAT, UNDER THE
APPLICABLE LOCAL LEGISLATION PROPERLY CONSTRUED, THE TERM OF OFFICE OF
THE CITY MANAGER OF SAN JUAN IS FOR "FOUR YEARS, PROVIDED THAT DURING
THE SAME HE OBSERVE GOOD BEHAVIOR" WAS NOT CLEARLY ERRONEOUS AND MUST
BE SUSTAINED ON REVIEW.  P. 464. 

DE CASTRO V. BOARD OF COMMISSIONERS OF SAN JUAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 321 U.S. 757, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE SUPREME COURT OF PUERTO RICO STAYING EXECUTION OF A PRIOR JUDGMENT
WHICH ORDERED REINSTATEMENT OF THE PETITIONER IN A LOCAL PUBLIC
OFFICE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE PETITION URGED AS A GROUND FOR CERTIORARI, WHICH
MOVED US TO GRANT IT, THAT THE DECISION OF THE COURT OF APPEALS BELOW,
AS IN A COMPANION CASE, MARIO MERCADO E HIJOS V. COMMINS, POST, P. 465,
"PRACTICALLY CLOSES THE DOORS OF THE APPELLATE COURT BELOW" TO APPEALS
WHICH THE STATUTES OF THE UNITED STATES ALLOW TO PUERTO RICAN LITIGANTS
IN THE INSULAR COURTS AND "DISCRIMINATES IN FAVOR OF THE FORTUNATE
PERSONS" WHO, THROUGH DIVERSITY OF CITIZENSHIP, CAN TAKE THEIR CASES TO
THE UNITED STATES DISTRICT COURT FOR PUERTO RICO,  FN1  INSTEAD OF TO
THE INSULAR COURTS. 

PETITIONER BROUGHT THE PRESENT PROCEEDING BY PETITION FOR CERTIORARI
IN THE DISTRICT COURT OF SAN JUAN, PUERTO RICO, TO REVIEW THE ACTION OF
RESPONDENT, THE BOARD OF COMMISSIONERS GOVERNING THE CITY OF SAN JUAN,
IN REMOVING PETITIONER FROM THE OFFICE OF CITY MANAGER TO WHICH THE
BOARD HAD APPOINTED HIM.  THE DISTRICT COURT OF SAN JUAN SUSTAINED THE
BOARD.  ON APPEAL THE SUPREME COURT OF PUERTO RICO REVERSED THE INSULAR
DISTRICT COURT AND DIRECTED PETITIONER'S REINSTATEMENT.  57 P.R. 149. 
ON APPEAL TO THE COURT OF APPEALS FOR THE FIRST CIRCUIT UNDER 28 U.S.C.
SEC. 225, THAT COURT AFFIRMED, 116 F.2D 806, AND THIS COURT DENIED
CERTIORARI, 314 U.S. 614. 

ON THE REMAND THE SUPREME COURT OF PUERTO RICO, ON MOTION OF
RESPONDENT, ENTERED JUDGMENT STAYING EXECUTION OF ITS FIRST JUDGMENT
INSOFAR AS IT ORDERED PETITIONER'S REINSTATEMENT, ON THE GROUND THAT
PETITIONER'S TERM OF OFFICE HAD EXPIRED IN FEBRUARY, 1941, AFTER THE
DECISION OF THE COURT OF APPEALS ON THE FIRST APPEAL.  59 D.P.R.
676(SPANISH EDITION).  CONSTRUING THE APPLICABLE STATUTES OF PUERTO
RICO IN THE LIGHT OF THE PRACTICAL CONSTRUCTION GIVEN TO THEM BY PUBLIC
OFFICIALS AND POLITICAL PARTIES OF THE ISLAND, AND OTHER MATTERS OF
WHICH IT TOOK JUDICIAL NOTICE, THE INSULAR COURT CAME TO THE CONCLUSION
THAT "THE TENURE OF OFFICE OF THE CITY MANAGER  ...  IS THAT OF FOUR
YEARS, PROVIDED THAT DURING THE SAME HE OBSERVE GOOD BEHAVIOR."  ON
APPEAL FROM THIS JUDGMENT THE CIRCUIT COURT OF APPEALS AFFIRMED, 136
F.2D 419.  WE GRANTED CERTIORARI, 321 U.S. 757, FOR THE REASON ALREADY
STATED AND BECAUSE SOME OBSERVATIONS IN THE OPINION OF THE CIRCUIT
COURT OF APPEALS HAVE RAISED SERIOUS QUESTIONS WITH RESPECT TO THE
APPROPRIATE RULE GOVERNING DECISION OF CASES INVOLVING LOCAL LAWS,
BROUGHT FROM THE INSULAR COURTS OF PUERTO RICO FOR REVIEW BY THE COURT
OF APPEALS FOR THE FIRST CIRCUIT AND BY THIS COURT. 

THE COURT OF APPEALS, IN AFFIRMING THE JUDGMENT OF THE SUPREME COURT
OF PUERTO RICO, POINTED OUT THAT SEC. 21 OF ACT NO. 99 OF 1931, WHICH
ESTABLISHED THE GOVERNMENT OF THE CITY OF SAN JUAN, THE CAPITAL OF
PUERTO RICO, PROVIDED THAT THE CITY MANAGER "SHALL BE APPOINTED BY THE
BOARD OF COMMISSIONERS CREATED BY THIS ACT AND SHALL HOLD OFFICE DURING
GOOD CONDUCT."  IT SAID, "IF WE WERE FREE TO TAKE A WHOLLY INDEPENDENT
VIEW OF THE POINT AT ISSUE WE WOULD BE INCLINED TO CONCLUDE THAT THE
MEANING OF SEC. 21 IS CLEAR, AND THAT THE COURT BELOW WENT BEYOND THE
PERMISSIBLE LIMITS OF INTERPRETATION IN READING THE CLAUSE 'AND SHALL
HOLD OFFICE DURING GOOD CONDUCT' AS MEANING THAT 'THE TENURE OF OFFICE
OF THE CITY MANAGER OF THE CAPITAL IS THAT OF FOUR YEARS, PROVIDED THAT
DURING THE SAME HE OBSERVE GOOD BEHAVIOR.'"  BUT IT FELT CONSTRAINED TO
AFFIRM THE JUDGMENT OF THE PUERTO RICAN TRIBUNAL BY OUR DECISION AND
OPINION IN BONET V. TEXAS COMPANY, 308 U.S. 463, 471. 

IN THAT CASE, IN REVERSING A DECREE OF THE CIRCUIT COURT OF APPEALS
WHICH HAD REVERSED THE SUPREME COURT OF PUERTO RICO ON A POINT OF LOCAL
LAW, WE SAID, "TO JUSTIFY REVERSAL IN SUCH CASES, THE ERROR MUST BE
CLEAR OR MANIFEST; THE INTERPRETATION MUST BE INESCAPABLY WRONG; THE
DECISION MUST BE PATENTLY ERRONEOUS."  AND SINCE THE COURT OF APPEALS
IN THIS CASE WAS NOT PREPARED TO SAY THAT THE JUDGMENT NOW UNDER REVIEW
IS "INESCAPABLY WRONG," AND AS IT THOUGHT THAT THIS COURT'S STATEMENT
IN THE BONET CASE HAD REDUCED THE DUTY OF THE COURT OF APPEALS TO THE
PERFORMANCE OF A MERE MECHANICAL FUNCTION, IT FELT COMPELLED TO AFFIRM
THE JUDGMENT.  IT ALSO SUGGESTED THAT, AS THE RULE OF DECISION
APPLICABLE TO APPEALS FROM THE INSULAR SUPREME COURT, AS ANNOUNCED BY
THE BONET CASE, HAD NOT BEEN APPLIED IN APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR PUERTO RICO, DIFFERENT INTERPRETATIONS OF LOCAL LAW
MIGHT BE ESTABLISHED IN THE COURT OF APPEALS, DEPENDING ON WHETHER THE
CASE WAS APPEALED FROM THE INSULAR COURT OR FROM THE UNITED STATES
DISTRICT COURT FOR PUERTO RICO. 

OUR OPINION IN THE BONET CASE WAS THE CULMINATION OF EFFORTS BY THIS
COURT, BEGINNING WITH GARCIA V. VELA, 216 U.S. 598, 602(1910); LEWERS &
COOKE V. ATCHERLY, 222 U.S. 285, 294(1911); AND KER & CO. V. COUDEN,
223 U.S. 268, 279(1912), TO INSURE A REVIEW BY THE FEDERAL COURTS OF
DECISIONS OF THE LOCAL COURTS OF OUR INSULAR POSSESSIONS IN MATTERS OF
PECULIARLY LOCAL CONCERN WHICH SHOULD LEAVE APPROPRIATE SCOPE FOR THE
DEVELOPMENT BY THOSE COURTS OF A SYSTEM OF LAW WHICH, DIFFERING FROM
OUR OWN IN ITS ORIGINS AND PRINCIPLES, WOULD NEVERTHELESS BE SUITABLE
TO LOCAL CUSTOMS AND NEEDS.  IN THUS INTERPRETING THE FUNCTION OF THE
FEDERAL APPELLATE COURTS IN REVIEWING DECISIONS OF THE INSULAR
TRIBUNALS WE ONLY FOLLOWED A PRINCIPLE WHICH HAD LONG BEEN ESTABLISHED
FOR APPEALS TO FEDERAL COURTS FROM THE COURTS OF OUR TERRITORIES WITHIN
THE UNITED STATES.  FN2 

FROM THE BEGINNING WE HAVE RECOGNIZED THAT THE APPELLATE REVIEW OF
INSULAR CASES WAS NOT GIVEN TO THE FEDERAL COURTS FOR THE PURPOSE OF
SUPERIMPOSING UPON THE SPANISH LAW OUR COMMON LAW PRECONCEPTIONS,
EXCEPT SO FAR AS THAT LAW MUST YIELD TO THE EXPRESSED WILL OF THE
UNITED STATES.  DIAZ V. GONZALEZ, 261 U.S. 102, 105-6.  HENCE WE HAVE
EMPHASIZED AS A CARDINAL PRINCIPLE OF REVIEW IN SUCH CASES THAT THE
MERE FACT THAT OUR OWN SYSTEM OF LAW AND STATUTORY CONSTRUCTION WOULD
CALL FOR THE APPLICATION OF ONE RULE TO A GIVEN SET OF FACTS, DOES NOT
PRECLUDE THE ADOPTION OF A DIFFERENT ONE BY THE INSULAR COURTS.  SEE
WAIALUA CO. V. CHRISTIAN, 305 U.S. 91, 109.  IF THE RULE THUS ANNOUNCED
BY THE INSULAR COURT IS ONE WHICH IS NOT PLAINLY INCONSISTENT WITH
ESTABLISHED PRINCIPLES OF THE LOCAL LAW, OR IN THEIR ABSENCE IS ONE
ACCEPTED BY THE PRACTICE OF THE COMMUNITY, IT WILL NOT BE REJECTED HERE
MERELY BECAUSE IT IS NOT IN LOGICAL HARMONY WITH THE RULES WHICH WE
WOULD APPLY TO A COMMUNITY WITHIN THE UNITED STATES.  IT WILL BE
REJECTED ONLY ON A CLEAR SHOWING THAT THE RULE APPLIED BY THE LOCAL
COURT DOES VIOLENCE TO RECOGNIZED PRINCIPLES OF LOCAL LAW OR
ESTABLISHED PRACTICES OF THE LOCAL COMMUNITY. 

THE GUIDING PRINCIPLE, WHICH IS INCAPABLE OF STATEMENT IN A SHORT
FORMULA, HAS BEEN VARIOUSLY PHRASED IN TERMS WHICH IN EVERY CASE MUST
BE INTERPRETED IN THE LIGHT OF THE PARTICULAR SITUATION TO WHICH THEY
WERE APPLIED.  FN3  BUT THE PRINCIPLE WHICH THESE PHRASES WERE INTENDED
TO EXPRESS HAS NOT BEEN MORE ACCURATELY AND COMPREHENSIVELY STATED THAN
BY MR. JUSTICE HOLMES IN WORDS WHICH ARE COMPLETELY APPLICABLE TO THE
PRESENT CASE, IN DIAZ V. GONZALEZ, SUPRA, 105-6: 

"THIS COURT HAS STATED MANY TIMES THE DEFERENCE DUE TO THE
UNDERSTANDING OF THE LOCAL COURTS UPON MATTERS OF PURELY LOCAL
CONCERN.  IT IS ENOUGH TO CITE VILLANUEVA V. VILLANUEVA, 239 U.S. 293,
299; NADAL V. MAY, 233 U.S. 447, 454.  THIS IS ESPECIALLY TRUE IN
DEALING WITH THE DECISIONS OF A COURT INHERITING AND BROUGHT UP IN A
DIFFERENT SYSTEM FROM THAT WHICH PREVAILS HERE.  WHEN WE CONTEMPLATE
SUCH A SYSTEM FROM THE OUTSIDE IT SEEMS LIKE A WALL OF STONE, EVERY
PART EVEN WITH ALL THE OTHERS, EXCEPT SO FAR AS OUR OWN LOCAL EDUCATION
MAY LEAD US TO SEE SUBORDINATIONS TO WHICH WE ARE ACCUSTOMED.  BUT TO
ONE BROUGHT UP WITHIN IT, VARYING EMPHASIS, TACIT ASSUMPTIONS,
UNWRITTEN PRACTICES, A THOUSAND INFLUENCES GAINED ONLY FROM LIFE, MAY
GIVE TO THE DIFFERENT PARTS WHOLLY NEW VALUES THAT LOGIC AND GRAMMAR
NEVER COULD HAVE GOT FROM THE BOOKS.  IN THIS CASE A SLIGHT DIFFERENCE
IN THE CAUTION FELT IN DEALING WITH THE INTEREST OF MINORS (BAERGA V.
REGISTRAR OF HUMACAO, 29 P.R. 440, 442), AND A SLIGHT CHANGE OF
EMPHASIS IN THE READING OF STATUTES, EXPLAIN THE DIVERGENCE BETWEEN THE
SUPREME COURT AND THE CIRCUIT COURT OF APPEALS." 

BEYOND THE FACT THAT COMMON LAW JUDGES IN SUCH CASES ARE REVIEWING
CIVIL LAW DECISIONS, IT IS OF SIGNIFICANCE THAT CONSIDERATIONS RELEVANT
FOR DECISION MUST BE DRAWN FROM AN ENVIRONMENT UNFAMILIAR TO AND FAR
REMOVED FROM THAT IN WHICH THE REVIEWING COURT SITS.  THAT WHICH IS
FAMILIAR AND ACCEPTED IN THE ISLAND FORUM, IN CONSTRUING A STATUTE OR
FORMULATING A RULE OF LAW, MAY APPEAR STRANGE OR UNORTHODOX IN A COMMON
LAW SETTING.  IN BRIDGING GAPS BETWEEN LEGAL SYSTEMS HAVING DIFFERENT
ORIGINS AND HISTORY, AND GOVERNING TWO DIFFERENT POLITIES, THE RULE WE
HAVE ANNOUNCED HAS SPECIAL IMPORTANCE. 

REPEATED ADMONITIONS THAT IN CASES COMING FROM THE PUERTO RICAN
INSULAR COURTS TO THE FEDERAL COURTS FOR REVIEW, WHERE THE CONSTITUTION
OR STATUTES OF THE UNITED STATES WERE NOT INVOLVED, GREAT DEFERENCE
MUST BE PAID TO LOCAL DECISIONS, HAVING FAILED OF THEIR PURPOSE, SEE
BONET V. YABUCOA SUGAR CO., 306 U.S. 505,  FN4  WE RESTATED THEM IN
MORE EMPHATIC FORM IN BONET V. TEXAS COMPANY, SUPRA, 470, IN THE
SENTENCE QUOTED IN THE OPINION BELOW WHICH WE HAVE REPEATED HERE.  IN
ORDER THAT ITS TRUE PURPORT MIGHT NOT BE MISUNDERSTOOD WE ACCOMPANIED
THE SENTENCE BY THE STATEMENT OF MR. JUSTICE HOLMES IN DIAZ V.
GONZALEZ, SUPRA, 105-6, WHICH WE HAVE QUOTED, AND IN THE LIGHT OF THAT
EXPOSITION WE ADDED:  "SUCH JUDGMENT OF REVERSAL (BY THE CIRCUIT COURT
OF APPEALS) WOULD NOT BE SUSTAINED HERE EVEN THOUGH WE FELT THAT OF
SEVERAL POSSIBLE INTERPRETATIONS THAT OF THE CIRCUIT COURT OF APPEALS
WAS THE MOST REASONABLE ONE." 

THUS INTERPRETED AND READ IN ITS CONTEXT THE PRINCIPLE, AS RESTATED
IN THE BONET CASE, THAT TO JUSTIFY REVERSAL BY THE FEDERAL COURTS OF A
DECISION OF AN INSULAR SUPREME COURT IN A MATTER OF LOCAL CONCERN, "THE
ERROR MUST BE CLEAR OR MANIFEST; THE INTERPRETATION MUST BE INESCAPABLY
WRONG," IS NOT A MERE MECHANICAL DEVICE WHICH REQUIRES OR ADMITS, SAVE
IN EXCEPTIONAL CASES, OF THE SUMMARY DISPOSITION OF APPEALS FROM THAT
COURT.  NOR DOES IT MINIMIZE THE IMPORTANCE OR DIGNITY OF THE APPELLATE
FUNCTION IN SUCH CASES.  ON THE CONTRARY, WE THINK THAT IT IMPOSES ON
THE COURT OF APPEALS AND ON THIS COURT THE PECULIARLY DELICATE TASK OF
EXAMINING AND APPRAISING THE LOCAL LAW IN ITS SETTING, WITH THE
SYMPATHETIC DISPOSITION TO SAFEGUARD IN MATTERS OF LOCAL CONCERN THE
ADAPTABILITY OF THE LAW TO LOCAL PRACTICES AND NEEDS.  IT IS ONE WHICH
ORDINARILY CANNOT BE PERFORMED SUMMARILY OR WITHOUT FULL ARGUMENT AND
EXAMINATION OF THE LEGAL QUESTIONS INVOLVED.  BUT IF IN THE LIGHT OF
SUCH AN EXAMINATION IT IS FOUND THAT THE RULE ADOPTED BY THE LOCAL
TRIBUNAL IS AN INTELLIGIBLE ONE, NOT SHOWN TO BE OUT OF HARMONY WITH
LOCAL LAW OR PRACTICE, IT IS NOT TO BE REJECTED BECAUSE WE THINK A
BETTER COULD HAVE BEEN DEVISED OR BECAUSE WE FIND IT OUT OF HARMONY
WITH OUR OWN TRADITIONAL SYSTEM OF LAW AND STATUTORY CONSTRUCTION. 

NOR DOES IT FOLLOW THAT THE DEFERENCE DUE, ON APPEALS FROM THE LOCAL
TRIBUNALS, TO THEIR UNDERSTANDING OF MATTERS OF LOCAL CONCERN WILL LEAD
TO THE ESTABLISHMENT OF A LOCAL LAW DIFFERING FROM THAT DEVELOPED IN
DECISIONS IN APPEALS FROM THE FEDERAL DISTRICT COURTS SITTING IN OUR
INSULAR POSSESSIONS.  IT IS NOT ANY THE LESS THE DUTY OF THE FEDERAL
COURTS IN CASES PENDING IN THE FEDERAL DISTRICT COURT OR ON APPEAL FROM
IT TO DEFER TO THAT UNDERSTANDING, WHEN IT HAS FOUND EXPRESSION IN THE
JUDICIAL PRONOUNCEMENTS OF THE INSULAR COURTS, NADAL V. MAY, 233 U.S.
447, 454; DIAZ V. GONZALEZ, SUPRA, 105; WAIALUA CO. V. CHRISTIAN,
SUPRA, 109.  ONCE UNDERSTOOD WHAT DEFERENCE IS TO BE PAID, THE PROBLEM
IS COMPARABLE TO THAT PRESENTED WHEN, UPON APPEALS FROM FEDERAL
DISTRICT COURTS SITTING IN THE STATES, THE FEDERAL APPELLATE COURTS ARE
REQUIRED TO FOLLOW STATE LAW UNDER THE RULE OF ERIE R. CO. V. TOMPKINS,
304 U.S. 64.  SEE WICHITA COMPANY V. CITY BANK, 306 U.S. 103;
HUDDLESTON V. DWYER, 322 U.S. 232. 

THERE REMAINS FOR CONSIDERATION THE APPROPRIATE APPLICATION OF THESE
PRINCIPLES TO THE FACTS OF THE PRESENT CASE.  THE ACT OF THE PUERTO
RICAN LEGISLATURE OF MAY 15, 1931, ACT NO. 99 OF 1931, ESTABLISHED A
SPECIAL FORM OF CITY GOVERNMENT FOR THE CAPITAL CITY, SAN JUAN.  FN5
LEGISLATIVE POWERS ARE VESTED IN A BOARD OF FIVE COMMISSIONERS; THE
FIRST COMMISSIONERS WERE TO BE APPOINTED BY THE GOVERNOR WITH THE
ADVICE AND CONSENT OF THE SENATE, FOR TERMS OF ONE, TWO, THREE, FOUR
AND FIVE YEARS, RESPECTIVELY (SEC. 9), BUT THE COMMISSIONERS SO
APPOINTED WERE TO HOLD OFFICE ONLY UNTIL THE FIRST MONDAY IN JANUARY,
1937, (SEC. 50), AND THEREAFTER THE "BOARD OF COMMISSIONERS CREATED BY
THIS ACT" WAS TO BE ELECTED AT THE GENERAL ELECTION HELD IN 1936 AND
EVERY FOURTH YEAR THEREAFTER (SEC. 50).  FN6  THE ACT PROVIDES THAT THE
CITY MANAGER, WHO IS THE CHIEF EXECUTIVE OF THE CITY, "SHALL BE
APPOINTED BY THE BOARD OF COMMISSIONERS CREATED BY THIS ACT AND SHALL
HOLD OFFICE DURING GOOD CONDUCT" (SEC. 21).  HE "MAY BE REMOVED BY THE
BOARD OF COMMISSIONERS, FOR JUST CAUSE" AFTER HEARING, AND CAUSES FOR
REMOVAL ARE ENUMERATED (SEC. 22).  FIVE OTHER ADMINISTRATIVE OFFICERS
ARE APPOINTED BY THE CITY MANAGER (SEC. 26), AND AN AUDITOR IS
APPOINTED BY THE BOARD OF COMMISSIONERS (SEC. 36); THE PROVISIONS AS TO
THEIR TENURE OF OFFICE AND REMOVAL BY THE AGENCY APPOINTING THEM (SECS.
27, 36) ARE IDENTICAL WITH THOSE FOR THE CITY MANAGER,  FN7  SAVE THAT
ONLY AS TO THE CITY MANAGER DOES THE ACT SPECIFY A TENURE OF OFFICE
"DURING GOOD CONDUCT."  OTHER EMPLOYEES, APPOINTED BY THE OFFICERS
UNDER WHOM THEY SERVE, "SHALL BE APPOINTED FOR THE TERM FOR WHICH EACH
OFFICER IS APPOINTED," AND ARE ALSO REMOVABLE FOR CAUSE AFTER HEARING,
THE CAUSES NOT BEING SPECIFIED, HOWEVER (SEC. 39).  NO PROVISION IS
MADE FOR BRINGING SUCH EMPLOYEES WITHIN THE PUERTO RICAN CIVIL SERVICE
ACT, ACT NO. 88 OF 1931, ADOPTED FOUR DAYS BEFORE THE ADOPTION OF ACT
NO. 99. 

THE PUERTO RICAN SUPREME COURT REFUSED TO HOLD THAT THE PROVISION
THAT THE CITY MANAGER "SHALL HOLD OFFICE DURING GOOD CONDUCT" SO
CONCLUSIVELY ESTABLISHED THAT HE WAS TO HOLD OFFICE FOR LIFE AS TO
PRECLUDE RESORT TO EXTRINSIC EVIDENCE OF LEGISLATIVE INTENTION.  IT
HELD THAT HIS TERM WAS THE SAME AS THAT OF THE BOARD OF COMMISSIONERS
WHICH APPOINTED HIM, SO THAT PETITIONER, WHO WAS APPOINTED IN 1937, BY
A BOARD OF COMMISSIONERS ELECTED FOR FOUR YEARS, HELD OFFICE FOR "FOUR
YEARS PROVIDED THAT DURING THE SAME HE OBSERVE GOOD BEHAVIOR."  FN8  WE
CANNOT SAY THAT THESE HOLDINGS WERE SO CLEARLY WRONG AS TO REQUIRE A
FEDERAL APPELLATE COURT TO REFUSE TO PAY DEFERENCE TO THE INSULAR
COURT'S DECISION. 

WHILE A PROVISION THAT AN OFFICE BE HELD "DURING GOOD BEHAVIOR" IS
GENERALLY DEEMED INDICATIVE OF AN INTENTION TO CREATE A LIFE TENURE
UNLESS CAUSE FOR REMOVAL ARISES, SEE MATTER OF HENNEN, 13 PET. 230,
259; SMITH V. BRYAN, 100 VA. 199, 203, 40 S.E. 652, 653; CHESLEY V.
COUNCIL OF LUNENBURG, 28 DOMINION LAW REP. 571, 572, IT HAS NOT BEEN
REGARDED, EVEN WHERE TRADITIONAL NOTIONS OF ANGLO-AMERICAN LAW PREVAIL,
AS A RIGID FORMULA PRECLUDING ANY OTHER CONSTRUCTION.  FN9 AND A TENURE
FOR A PERIOD OF YEARS DURING GOOD BEHAVIOR HAS NOT BEEN REGARDED AS A
CONTRADICTION IN TERMS BY AMERICAN COURTS.  FN10  IN SHURTLEFF V.
UNITED STATES, 189 U.S. 311, 316, THIS COURT RECOGNIZED AND APPLIED THE
STRONG PRESUMPTION AGAINST THE CREATION OF A LIFE TENURE IN A PUBLIC
OFFICE UNDER THE FEDERAL GOVERNMENT.  TO HOLD THAT THE CITY MANAGER WAS
APPOINTED FOR LIFE WOULD, ACCORDING TO THE TERMS OF SEC. 39, GIVE TO
ALL EMPLOYEES APPOINTED BY HIM A TENURE FOR HIS LIFE.  AN INTENTION TO
CREATE SUCH AN ESTATE PUR AUTRE VIE IN A PUBLIC OFFICE WOULD AT LEAST
BE SOMEWHAT UNUSUAL.  ON THE OTHER HAND, IF THEY ARE TO BE DEEMED
APPOINTED FOR THEIR OWN LIVES, THE RESULT WOULD BE THAT ON THE DEATH OR
RESIGNATION OF ONE CITY MANAGER, HIS SUCCESSOR WOULD BE UNABLE TO
SELECT EVEN HIS MOST IMMEDIATE SUBORDINATES AND A LIFE TENURE WOULD BE
IMPLIED FOR A LARGE GROUP OF MUNICIPAL EMPLOYEES IN DISREGARD OF THE
RULE OF SHURTLEFF V. UNITED STATES. 

MOREOVER THERE IS NO PROVISION THAT THE OTHER MUNICIPAL OFFICERS ARE
TO SERVE DURING GOOD CONDUCT, AND SEC. 39 SEEMS TO ASSUME THAT THEY
SHALL HAVE DEFINED TERMS OF OFFICE.  TO HOLD THAT THEY COULD BE
APPOINTED FOR LIFE WOULD BE INCONSISTENT WITH THE RULE OF SHURTLEFF V.
UNITED STATES, SUPRA, WHICH THE INSULAR COURT ACCEPTED AND APPROVED. 
SINCE THE ACT IS SILENT AS TO THEIR TERMS OF OFFICE, THEY CAN
PRESUMABLY BE APPOINTED FOR ANY TERM NOT EXCEEDING THAT OF THE OFFICER
APPOINTING THEM.  THE INTERPRETATION CONTENDED FOR BY PETITIONER WOULD
SEEMINGLY PRODUCE THE RESULT THAT ALL OF THE OTHER CITY OFFICERS, SAVE
THE AUDITOR, AND THE EMPLOYEES IN THEIR RESPECTIVE OFFICES, COULD BE
APPOINTED FOR THE LIFE OF THE CITY MANAGER, UNLESS HE SHOULD, AS THE
PUERTO RICAN COURT ASSUMED HE COULD, DECIDE TO APPOINT THEM FOR A
SHORTER TERM (SEE SECS. 26, 39).  IN THE LATTER CASE APPOINTEES OF
OTHER OFFICIALS, THEMSELVES APPOINTED FOR SHORT TERMS, WOULD
NECESSARILY HAVE A LIKE TENURE OF OFFICE (SEC. 39), WHILE THOSE OF THE
CITY MANAGER WOULD HAVE A TENURE FOR HIS LIFE, AND THOSE OF THE AUDITOR
A TENURE OF FOUR YEARS.  SUCH INCONGRUITIES THE PUERTO RICAN COURT
THOUGHT WEIGHED HEAVILY AGAINST THE CONTENTION THAT PETITIONER'S TENURE
WAS FOR LIFE.  THIS IS THE MORE SO BECAUSE THE APPOINTEES OF THE CITY
MANAGER AND OF OFFICERS APPOINTED BY HIM INCLUDE MOST OF THE MUNICIPAL
OFFICERS AND EMPLOYEES, NONE OF WHOM ARE SUBJECT TO THE INSULAR CIVIL
SERVICE LAWS, BUT WHO COULD BE APPOINTED FOR PETITIONER'S LIFE SHOULD
PETITIONER'S CONSTRUCTION OF THE ACT PREVAIL. 

IN ADDITION TO CONSIDERING THE CONSEQUENCES OF SUCH A HOLDING THE
PUERTO RICAN SUPREME COURT LOOKED TO THE PRACTICAL CONSTRUCTION PLACED
ON THE ACT BY THE POLITICAL PARTIES OF PUERTO RICO, AS SHOWN BY FACTS
OF WHICH IT COULD PROPERLY TAKE JUDICIAL NOTICE.  IT SAID THAT "THE
POLITICAL PARTIES OF THE ISLAND HAVE ALWAYS CONSTRUED THIS STATUTE IN
THE SENSE THAT THE TERM OF OFFICE OF THE CITY MANAGER OF THE CAPITAL IS
THAT OF FOUR YEARS."  IT POINTED OUT THAT AT THE GENERAL ELECTION HELD
IN 1936 AND AT THAT HELD IN 1940 EACH OF THE POLITICAL PARTIES
PARTICIPATING PROPOSED A CANDIDATE FOR THE OFFICE OF CITY MANAGER,
ALTHOUGH THAT OFFICE DID NOT APPEAR ON THE BALLOT.  IT SAID THAT IT WAS
WELL KNOWN THAT PETITIONER WAS THE CANDIDATE OF THE WINNING PARTY AT
THE 1936 ELECTION AND WAS APPOINTED CITY MANAGER BY THE NEWLY ELECTED
BOARD OF COMMISSIONERS TO REPLACE THE THEN INCUMBENT, AND THAT ANOTHER
WAS THE CANDIDATE OF PETITIONER'S PARTY AT THE 1940 ELECTION, AND WAS
APPOINTED CITY MANAGER BY THE NEWLY ELECTED BOARD OF COMMISSIONERS. 
THIS PRACTICAL CONSTRUCTION BY THE ELECTORATE AND POLITICAL PARTIES, OF
WHICH PETITIONER WAS HIMSELF THE BENEFICIARY,  FN11  STRONGLY SUPPORTS
THE INTERPRETATION OF THE ACT AS CONFERRING ON THE CITY MANAGER A
TENURE NO LONGER THAN THAT OF THE BOARD OF COMMISSIONERS WHICH
APPOINTED HIM. 

IN VIEW OF THESE CONSIDERATIONS AND OF THE PRINCIPLES LONG OBSERVED
BY THIS COURT IN REVIEWING DECISIONS OF THE INSULAR COURTS, WHICH WE
HAVE STATED, WE CANNOT SAY THAT WE SHOULD NOT DEFER TO THE VIEW OF THE
SUPREME COURT OF PUERTO RICO THAT THE MEANING OF SEC. 21, WHEN EXAMINED
WITH THE RELATED PROVISIONS OF ACT NO. 99, IN THE LIGHT OF THE
PREVAILING PRACTICAL CONSTRUCTION OF IT, IS NOT SO PLAIN AND
UNAMBIGUOUS AS TO PRECLUDE RESORT TO EXTRINSIC AIDS TO INTERPRETATION. 
NOR CAN WE SAY, THAT THE PRACTICAL CONSTRUCTION GIVEN THE ACT, TOGETHER
WITH THE STRONG PRESUMPTION AGAINST LIFE TENURES, AND THE PRINCIPLE,
ACCEPTED BY THE SUPREME COURT OF PUERTO RICO ON THE AUTHORITY OF
NUMEROUS AMERICAN DECISIONS, THAT AMBIGUITIES SHOULD BE RESOLVED IN
FAVOR OF THE SHORTER TERM OF OFFICE,  FN12  WERE CLEARLY INSUFFICIENT
TO SUPPORT THE CONSTRUCTION WHICH IT ADOPTED. 

PETITIONER CALLS TO OUR ATTENTION AN OPINION OF THE ATTORNEY GENERAL
OF PUERTO RICO, DATED JANUARY 30, 1937, STATING THAT "THE
ADMINISTRATIVE OFFICERS OF THE CAPITAL   ...  WERE APPOINTED DURING
GOOD BEHAVIOR" AND THAT THE APPOINTMENTS "PARTICIPATE OF THE NATURE OF
A LIFE TENURE."  HE ALSO REFERS TO CORRESPONDENCE OF THE FIRST CITY
MANAGER WHICH COULD BE TAKEN AS SUPPORTING RESPONDENT'S POSITION AS
MUCH AS IT DOES PETITIONER'S.  IT DOES NOT APPEAR THAT THESE WERE
CALLED TO THE ATTENTION OF THE SUPREME COURT OF PUERTO RICO, BUT IN ANY
EVENT THEY DO NOT, IN OUR OPINION, COUNTERBALANCE THE WEIGHT RIGHTLY TO
BE GIVEN TO THE DECISION OF THE INSULAR SUPREME COURT AS THE ULTIMATE
INSULAR INTERPRETER OF THE LOCAL LAW.  WE HAVE CONSIDERED BUT DO NOT
FIND IT NECESSARY TO DISCUSS OTHER CONTENTIONS OF LESSER MOMENT, MOST
OF WHICH WERE DEALT WITH IN THE OPINION OF THE COURT OF APPEALS BELOW,
AND NONE OF WHICH CALL FOR A CONCLUSION DIFFERENT FROM THAT WHICH IT
REACHED.  AFFIRMED. 

FN1  SEE 48 U.S.C. SEC. 863. 

FN2  SWEENEY V. LOMME, 22 WALL.  208, 213; NORTHERN PACIFIC R. CO. V.
HAMBLY, 154 U.S. 349, 361; FOX V. HAARSTICK, 156 U.S. 674, 679; ARMIJO
V. ARMIJO, 181 U.S. 558, 561; COPPER QUEEN MINING CO. V. BOARD OF
EQUALIZATION, 206 U.S. 474, 479; LEWIS V. HERRERA, 208 U.S. 309, 314;
ENGLISH V. ARIZONA, 214 U.S. 359, 361, 363; SANTA FE COUNTY V. COLER,
215 U.S. 296, 305, 307; ALBRIGHT V. SANDOVAL, 216 U.S. 331, 339; TREAT
V. GRAND CANYON RY. CO., 222 U.S. 448, 452; CLASON V. MATKO, 223 U.S.
646, 653; GRAY V. TAYLOR, 227 U.S. 51, 56-57; PHOENIX RY. CO. V.
LANDIS, 231 U.S. 578, 579-580; SANTA FE CENTRAL RY. CO. V. FRIDAY, 232
U.S. 694, 700. 

FN3  GIVEN THE CONDITIONS WHICH, AS WE HAVE POINTED OUT, CALL FOR THE
ACCEPTANCE HERE OF THE DECISION OF THE LOCAL COURT, THIS COURT HAS SAID
THAT ITS DECREE MUST BE ACCEPTED HERE UNLESS "WE THOUGHT IT CLEARLY
WRONG," SANTA FE CENTRAL RY. CO. V. FRIDAY, 232 U.S. 694, 700, UNLESS
"CONSTRAINED TO THE CONTRARY BY A SENSE OF CLEAR ERROR COMMITTED,"
VILLANUEVA V. VILLANUEVA, 239 U.S. 293, 299, MATOS V. ALONSO HERMANOS,
300 U.S. 429, UNLESS "MANIFEST ERROR BE DISCLOSED," FOX V. HAARSTICK,
156 U.S. 674, 679; ENGLISH V. ARIZONA, 214 U.S. 359, 363; SANTA FE
COUNTY V. COLER, 215 U.S. 296, 305; TREAT V. GRAND CANYON RY. CO., 222
U.S. 448, 452; WAIALUA CO. V. CHRISTIAN, 305 U.S. 91, 109, "EXCEPT UPON
AN INESCAPABLE CONCLUSION THAT IT WAS WRONG," DIAZ V. GONZALEZ, 261
U.S. 102, 105, UNLESS "PLAINLY INCORRECT," PUERTO RICO V. RUBERT
HERMANOS, 315 U.S. 637, 646.  IN OTHER CASES, IN AFFIRMING THE DECISION
OF THE LOCAL COURT, WE HAVE SAID THAT WE WILL ACCORD TO ITS DECISION
"GREAT IF NOT CONTROLLING WEIGHT," LEWIS V. HERRERA, 208 U.S. 309, 314;
OR "GREAT WEIGHT," LEWERS & COOKE V. ATCHERLY, 222 U.S. 285, 294; CF.
CORDOVA V. FOLGUERAS, 227 U.S. 375, 378-9; OR THAT WE WOULD "LEAN
TOWARD THE INTERPRETATION ADOPTED BY THE LOCAL COURT," COPPER QUEEN
MINING CO. V. BOARD OF EQUALIZATION, 206 U.S. 474, 479; ENGLISH V.
ARIZONA, SUPRA, 361; CLASON V. MATKE, 223 U.S. 646, 653; GRAY V.
TAYLOR, 227 U.S. 51, 57; OR THAT WE WERE "NOT DISPOSED TO DISTURB" ITS
CONSTRUCTION, ALBRIGHT V. SANDOVAL, 216 U.S. 331, 339; ARMIJO V.
ARMIJO, 181 U.S. 558, 561; CF. PHOENIX RY. CO. V. LANDIS, 231 U.S. 578,
579-80; AND HAVE SPOKEN OF THE "CAUTION TO BE USED BEFORE OVERRULING"
LOCAL DECISIONS, FERNANDEZ & BROS. V. OJEDA, 266 U.S. 144, 146. 

FN4  SEE ALSO DIAZ V. GONZALEZ, 261 U.S. 102; FERNANDEZ & BROS. V.
OJEDA, 266 U.S. 144; MATOS V. ALONSO HERMANOS, 300 U.S. 429; PUERTO
RICO V. RUBERT HERMANOS, 315 U.S. 637; AND SIMILARLY AS TO REVIEW OF
DECISIONS OF THE HAWAIIAN SUPREME COURT, WAIALUA CO. V. CHRISTIAN, 305
U.S. 91. 

FN5  THE FORM OF GOVERNMENT FOR OTHER MUNICIPALITIES IN PUERTO RICO
IS PRESCRIBED BY ACT NO. 53 OF 1928, WHICH PROVIDES FOR A MAYOR TO BE
ELECTED "IN THE SAME MANNER REQUIRED BY THIS ACT FOR MEMBERS OF THE
MUNICIPAL ASSEMBLY" (SEC. 29), AND HENCE PRESUMABLY TO SERVE A TERM OF
FOUR YEARS (CF. SEC. 17). 

FN6  BY ACT NO. 10 OF 1937 THE BOARD WAS INCREASED TO NINE, BEGINNING
IN 1941, FOUR COMMISSIONERS TO BE APPOINTED EVERY FOUR YEARS BY THE
GOVERNOR WITH THE ADVICE AND CONSENT OF THE PUERTO RICAN SENATE, AND
FIVE TO BE ELECTED AS PREVIOUSLY PROVIDED. 

FN7  IN THE ENGLISH TEXT THE CITY MANAGER IS REMOVABLE FOR
"INEXCUSABLE NEGLIGENCE IN THE PERFORMANCE OF HIS DUTIES," THE OFFICERS
APPOINTED BY HIM FOR "INEXCUSABLE IGNORANCE IN THE PERFORMANCE OF THEIR
DUTIES".  IN THE SPANISH TEXT THE WORD IS "NEGLIGENCIA" IN BOTH CASES. 

FN8  WE NEED NOT CONSIDER WHAT, UNDER THIS CONSTRUCTION, WAS THE TERM
OF OFFICE OF THE CITY MANAGER FIRST APPOINTED IN MAY, 1931.  AN
ADMISSIBLE CONSTRUCTION WOULD BE THAT THE BOARD OF COMMISSIONERS
APPOINTED BY THE GOVERNOR TO SERVE UNTIL JANUARY 1937 WAS REGARDED AS A
SINGLE BODY WITH A FIVE-YEAR TERM, DESPITE THE ANNUAL CHANGES IN ITS
MEMBERSHIP, AND HENCE THE CITY MANAGER, WHOSE TERM OF OFFICE WAS THAT
OF THE BODY APPOINTING HIM, ALSO HAD A TENURE OF SOME SIX AND ONE-HALF
YEARS.  AT LEAST THIS CONFORMS TO WHAT IN FACT OCCURRED. 

FN9  STATE COURTS HAVE HELD THAT A PROVISION FOR TENURE "DURING GOOD
BEHAVIOR" DOES NOT PRECLUDE THE TERMINATION OF THE TENURE BY GOOD FAITH
ABOLITION OF THE OFFICE, SHIRA V. STATE, 187 IND. 441, 119 N.E. 833;
THAT SUCH A PROVISION IS NOT NECESSARILY INCONSISTENT WITH A
CONSTITUTIONAL RESTRICTION ON THE NUMBER OF YEARS FOR WHICH THE OFFICE
CAN BE HELD BUT WILL BE READ AS CREATING A TENURE FOR A TERM OF YEARS
DURING GOOD BEHAVIOR, CALLAGHAN V. TOBIN, 40 TEX. CIV. APP. 441, 448,
90 S.W. 328, 331; CALLAGHAN V. IRVIN, 40 TEX. CIV. APP. 453, 459, 90
S.W. 335, 338; CALLAGHAN V. MCGOWN, 90 S.W. 319, 322(TEX.  CIV.  APP.);
NEUMEYER V. KRAKEL, 110 KY. 624, 640, 62 S.W. 518, 523; BUT CF. STUART
V. ELLSWORTH, 105 ME. 523, 75 A. 59; ROTH V. STATE, 158 IND. 242, 266
8, 63 N.E. 460, 468-9; AND THAT A PROVISION THAT OFFICERS APPOINTED BY
THE MAYOR AND COUNCIL SHALL HOLD OFFICE "DURING GOOD BEHAVIOR OR UNTIL
THEY MAY BE SEVERALLY REMOVED BY THE MAYOR OR BY THREE-FOURTHS VOTE OF
THE COUNCIL  ...  " AUTHORIZES REMOVAL AT WILL BY THE MAYOR OR COUNCIL,
SMITH V. BRYAN, 100 VA. 199, 40 S.E. 652; CF. PEOPLE EX REL. MALONEY V.
DOUGLAS, 195 N.Y. 145, 150, 87 N.E. 1070, 1072.  CONTRA, CHESLEY V.
COUNCIL OF LUNENBURG, 28 DOMINION LAW REP. 571.  AND IN CONSTRUING SUCH
PROVISIONS THE COURTS HAVE ATTRIBUTED WEIGHT TO THE PRACTICAL
CONSTRUCTION PLACED ON THEM BY THE PUBLIC OFFICIALS CONCERNED, KLINK V.
STATE, 207 IND. 628, 633, 194 N.E. 352, 354; SMITH V. BRYAN, SUPRA, AND
TO SUPPOSED ANOMALIES RESULTING FROM A CONTRARY CONSTRUCTION, SMITH V.
BRYAN, SUPRA.    FN10  BRUCE V. FOX, 1 DANA (KY.)  447, 452 ET SEQ.;
SEE CASES CITED SUPRA NOTE 9. 

FN11  THE COURTS BELOW DID NOT CONSIDER, AND THE FACTS BEFORE US DO
NOT ENABLE US TO DECIDE, WHETHER SHOULD PETITIONER HAVE PREVAILED IN
HIS CONSTRUCTION OF THE ACT AS PROVIDING A LIFE TENURE, HE COULD ALSO
ESTABLISH HIS RIGHT TO THE OFFICE OVER THAT OF THE FIRST INCUMBENT,
WHOM HE SUPERSEDED. 

FN12  THE PUERTO RICAN SUPREME COURT CITED AGGELER V. DOMINGUEZ, 217
CAL. 429, 19 P.2D 241; LOWRIE V. BRENNAN, 283 MICH. 63, 276 N.W. 900;
CHAMSKI V. BOARD OF AUDITORS, 288 MICH. 238, 284 N.W. 711; DOBKINS V.
REECE, 17 S.W.2D 81(TEX.  CIV.  APP.); SMITH V. BRYAN, SUPRA, N. 9; 135
A.L.R. 1173, 1175. 
..END :









MERCADO V. COMMINS, 322 U.S. 465 


NO. 497.  ARGUED APRIL 24, 1944.  - DECIDED MAY 29, 1944.  - AFFIRMED. 


ALTHOUGH THE DUTY OF THE CIRCUIT COURT OF APPEALS AND OF THIS COURT TO
EXAMINE AND APPRAISE LOCAL LAW IN CASES BROUGHT FOR REVIEW FROM THE
INSULAR COURTS CAN NOT ORDINARILY BE DISCHARGED SUMMARILY, FULL
ARGUMENT IN THIS CASE HAS NOT DEVELOPED ANY ISSUE OF PUERTO RICAN LAW,
OR ANY QUESTION OF THE DEFERENCE RIGHTLY TO BE PAID TO THE DECISIONS OF
THE HIGHEST COURT OF PUERTO RICO, SO SUBSTANTIAL AS TO PRECLUDE THE
SUMMARY JUDGMENT OF AFFIRMANCE ENTERED BY THE CIRCUIT COURT OF
APPEALS.  P. 471. 

MARIO MERCADO E HIJOS V. COMMINS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 321 U.S. 758, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE SUPREME COURT OF PUERTO RICO. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RULE 39(B) OF THE COURT OF APPEALS FOR THE FIRST CIRCUIT, EFFECTIVE
SEPTEMBER 20, 1940, AUTHORIZES THE SUMMARY DISMISSAL OR AFFIRMANCE OF
JUDGMENTS APPEALED FROM THE SUPREME COURT OF PUERTO RICO INVOLVING ONLY
QUESTIONS OF LOCAL LAW, UNLESS IT APPEARS FROM THE RECORD AND
APPELLANT'S REQUIRED "STATEMENT ON APPEAL" THAT THE JUDGMENT APPEALED
FROM "IS 'INESCAPABLY WRONG' OR 'PATENTLY ERRONEOUS' (SANCHO BONET V.
TEXAS CO., 308 U.S. 463(1940))."  IN THIS, AS IN THE COMPANION CASE,
DECASTRO V. BOARD OF COMM'RS OF SAN JUAN, ANTE, P. 451, WE GRANTED
CERTIORARI ON A PETITION RAISING IMPORTANT QUESTIONS CONCERNING THE
APPELLATE REVIEW BY FEDERAL COURTS OF DECISIONS OF THE SUPREME COURT OF
PUERTO RICO IN MATTERS OF LOCAL CONCERN.  THE PETITION HERE PRESENTS
FOR DECISION THE QUESTION (1) WHETHER THE APPLICATION OF RULE 39(B)
INVOLVES AN ABDICATION OF THE DUTY OF THE COURT OF APPEALS TO HEAR AND
DECIDE SUCH APPEALS ON THE MERITS, ON BRIEF AND ARGUMENT, AS ARE OTHER
APPEALS; AND (2) WHETHER THE DECISION OF THE INSULAR SUPREME COURT OF
PUERTO RICO IS SO MANIFESTLY CORRECT AS TO MAKE ANY APPEAL FROM IT
NECESSARILY FRIVOLOUS AND THUS WARRANT DISMISSAL OF THE APPEAL WITHOUT
A HEARING, ON MERE INSPECTION OF THE FACE OF THE RECORD. 

PETITIONER, AN AGRICULTURAL PARTNERSHIP, BY PETITION IN THE INSULAR
DISTRICT COURT OF PONCE, P.R., SOUGHT RESCISSION OF A SALE OF A
PLANTATION KNOWN AS "INDIOS," MADE BY RESPONDENT COMMINS TO OTHERS OF
THE RESPONDENTS, AS IN VIOLATION AND IN FRAUD OF AN OPTION TO PURCHASE
THE PROPERTY GIVEN BY RESPONDENT COMMINS TO PETITIONER.  AFTER A TRIAL,
THE DISTRICT COURT MADE FINDINGS OF FACT ON THE BASIS OF WHICH IT GAVE
JUDGMENT FOR RESPONDENTS.  THE SUPREME COURT OF PUERTO RICO CONFIRMED
THE FINDINGS OF THE DISTRICT COURT AND AFFIRMED THE JUDGMENT.  60
D.P.R. 877(SPANISH EDITION).  ON APPEAL TO THE COURT OF APPEALS FOR THE
FIRST CIRCUIT, UNDER 28 U.S.C. SEC. 225(A), THAT COURT, ON
CONSIDERATION OF THE TYPEWRITTEN RECORD AND APPELLANT'S STATEMENT ON
APPEAL, AND WITHOUT HEARING ARGUMENT AND WITHOUT AN OPINION, AFFIRMED
UNDER ITS RULE 39(B). 

THE DISTRICT COURT AND THE SUPREME COURT BOTH FOUND THE FACTS AS
FOLLOWS:  IN 1932 RESPONDENT PROCURED A LOAN FROM PETITIONER OF MORE
THAN $40,000, FOR WHICH RESPONDENT COMMINS GAVE PETITIONER FOUR
PROMISSORY NOTES PAYABLE TO "THE HOLDER BY ENDORSEMENT," SECURED BY A
MORTGAGE, NOT SPECIFICALLY NAMING ANY MORTGAGEE, ON RESPONDENT COMMINS'
UNDIVIDED INTEREST IN TWO PLANTATIONS, "INDIOS" AND "JUANITA," THEN
OWNED JOINTLY BY HER AND HER SISTER.  AT THAT TIME PETITIONER WAS A
TENANT OF BOTH PLANTATIONS UNDER LEASE, THAT OF "INDIOS" EXPIRING IN
1937, THAT OF "JUANITA" IN 1938.  THE MORTGAGE CONTRACT STIPULATED THAT
MRS. COMMINS UPON THREE MONTHS' WRITTEN NOTICE MIGHT AT ANY TIME BEFORE
MATURITY PAY THE MORTGAGE CREDITS.  IT ALSO PROVIDED THAT "THE DEBTOR,
AS A PART OF THE CONSIDERATION OF THIS CONTRACT, AGREES WITH THE
PARTNERSHIP MARIO MERCADO E HIJOS, SO LONG AS THE MORTGAGE CREDIT
HEREIN CONSTITUTED IS NOT PAID, TO GRANT IT PRIORITY TO PURCHASE AND
SELL OR LEASE HER UNDIVIDED JOINT INTEREST IN THE ESTATES 'INDIOS' AND
'JUANITA' UPON THE SAME PRICE AND TERMS" AS THOSE ON WHICH SHE SHOULD
BE WILLING TO SELL OR LEASE TO ANY OTHER PURCHASER OR LESSEE.  IT
FURTHER PROVIDED "TO THIS EFFECT, THE DEBTOR SHALL ADVISE, UNLESS SUCH
MORTGAGE CREDIT IS PAID  ...  OF ANY OFFER OF SALE OR LEASE MADE TO
HER." 

THE FOLLOWING YEAR, 1933, PETITIONER SOLD THE PROMISSORY NOTES TO THE
HEIRS OF JOSE TOUS SOTO, THE TRANSFER BEING EFFECTED BY DELIVERY OF THE
NOTES AND BY A DEED EXECUTED BY PETITIONER WHICH PURPORTED TO ASSIGN TO
THE HEIRS THE "MORTGAGE CREDITS" AND GUARANTEED PAYMENT IN MONTHLY
INSTALLMENTS OF THE STIPULATED INTEREST OF 9% DUE ON THE NOTES LESS 3/4
OF 1%, WHICH IT WAS AGREED PETITIONER SHOULD RETAIN FOR ITSELF.  NO
MENTION WAS MADE IN THE DEED OF THE OPTION SECURED TO PETITIONER BY THE
MORTGAGE CONTRACT BUT BOTH OF THE INSULAR COURTS MADE FINDINGS WHICH
PETITIONER CONTENDS ESTABLISH THAT THE OPTION WAS NOT INTENDED TO BE
ASSIGNED, BUT THAT THE RIGHTS UNDER IT WERE TO BE RETAINED BY
PETITIONER.  THREE YEARS LATER, IN 1936, THE INTERESTS OF THE OWNERS IN
THE TWO ESTATES WERE PARTITIONED BETWEEN MRS. COMMINS AND HER SISTER,
MRS. COMMINS RECEIVING THE PLANTATION "INDIOS" BY THE PARTITION DEED IN
WHICH PETITIONER JOINED FOR THE PURPOSE OF CONSENTING TO THE
PARTITION.  THE TRIAL COURT MADE FINDINGS WHICH CAN BE INTERPRETED AS
MEANING THAT ALL THE RESPONDENTS WERE IN FACT AWARE THAT IT WAS THE
UNDERSTANDING OF PETITIONER AND THE TRANSFEREES OF THE MORTGAGE
CREDITORS THAT THE OPTION WAS TO REMAIN THE PROPERTY OF PETITIONER. 

IN FEBRUARY, 1937, MRS. COMMINS GAVE A NEW SHORT TERM MORTGAGE FOR
$45,000 ON "INDIOS" PLANTATION TO RESPONDENT MANUEL FRANCISCO LLUBERAS
PASSARELL.  THE PROCEEDS, TO THE EXTENT OF $41,000, WERE BY HER
DIRECTION USED TO PAY HER MORTGAGE INDEBTEDNESS, WITH THREE MONTHS'
INTEREST IN ADVANCE, TO THE HEIRS OF JOSE TOUS SOTO, THE TRANSFEREES OF
THE MORTGAGE CREDITS, WHO, ON RECEIPT OF THE PAYMENT, CANCELLED THE
MORTGAGE.  IMMEDIATELY FOLLOWING THE CANCELLATION MRS. COMMINS SOLD AND
CONVEYED BY DEED THE ESTATE "INDIOS" TO RESPONDENT LLUBERAS PASSARELL
AND HIS SISTERS, WHO ARE ALSO RESPONDENTS.  IT IS THIS DEED WHICH
PETITIONER SEEKS TO CANCEL AS IN VIOLATION OF THE OPTION. 

IN AFFIRMING THE JUDGMENT OF THE PONCE DISTRICT COURT WHICH DENIED
THE PETITION FOR CANCELLATION OF THE CONVEYANCE, THE SUPREME COURT OF
PUERTO RICO RESTED ITS DECISION ON TWO INDEPENDENT GROUNDS, EITHER ONE
OF WHICH, IF SUPPORTABLE, IS SUFFICIENT TO SUSTAIN IT.  CONSTRUING AND
APPLYING THE RELEVANT PROVISIONS OF ART. 152 OF THE PUERTO RICO
MORTGAGE LAW AND SECS. 1418 AND 1759 OF THE CIVIL CODE OF PUERTO RICO,
1930 EDITION,  FN1  IT CONCLUDED THAT THE TRANSFER BY PETITIONER OF THE
MORTGAGE CREDITS TO THE HEIRS OF JOSE TOUS SOTO WITHOUT RESERVATION OF
THE OPTION TO PURCHASE, "CONVEYED" TO THE HEIRS, PETITIONER'S RIGHTS
UNDER THE OPTION AS AN INSEPARABLE INCIDENT OF THE CREDITS SO THAT
AFTER THE TRANSFER PETITIONER WAS NOT ENTITLED TO EXERCISE THE OPTION. 
IT ALSO CONCLUDED THAT SINCE THE OPTION WAS FOR "SO LONG AS THE
MORTGAGE CREDIT HERE CONSTITUTED IS NOT PAID" IT BECAME "EXTINGUISHED"
BY VIRTUE OF THE PAYMENT OF THE MORTGAGE AND COULD NOT THEREAFTER BE
EXERCISED.  IT FURTHER HELD THAT PETITIONER HAD FAILED TO PROVE THAT
THE SALE OF "INDIOS" BY RESPONDENT COMMINS, AFTER THE ASSIGNMENT BY
PETITIONER OF THE MORTGAGE CREDITS, AND AFTER THE PAYMENT OF THE
MORTGAGE AND THE EXPIRATION OF THE OPTION, WAS IN FRAUD OF PETITIONER'S
RIGHTS UNDER THE OPTION. 

THE COURT DID NOT PASS UPON THE CONTENTION THAT THE OPTION TO
PURCHASE WAS VOID AS AN AGREEMENT "ENABLING THE MORTGAGEE TO ADJUDICATE
TO ITSELF THE MORTGAGE PROPERTY" COMPARABLE TO AGREEMENTS FOR
COLLATERAL ADVANTAGE "CLOGGING" THE EQUITY OF REDEMPTION DEEMED
UNLAWFUL IN ANGLO-AMERICAN MORTGAGE LAW.  JENNINGS V. WARD, 2 VERN. 
520; SAMUEL V. JARRAH TIMBER & WOOD PAVING CORP., L.R. (1904) A.C. 323;
21 HARV. L. REV. 459.  BUT ASSUMING THE VALIDITY OF THE OPTION, AS DID
THE SUPREME COURT OF PUERTO RICO, ITS VIEW THAT RIGHTS ACQUIRED BY A
MORTGAGEE AS AN INCIDENT TO THE MORTGAGE DEBT PASSES TO THE TRANSFEREE
OF THE DEBT BY ASSIGNMENT, WHETHER MENTIONED IN THE ASSIGNMENT OR NOT,
IS NOT UNKNOWN TO OUR LAW.  CF. SHELDON V. SILL, 8 HOW.  441, 450;
BATESVILLE INSTITUTE V. KAUFFMAN, 18 WALL.  151, 154; JONES ON
MORTGAGES, SEC. 1033; AND SEE NORTH BRITISH & MERCANTILE INS. CO. V.
ROSE, 228 F. 290, 292.  AND IT IS A FAMILIAR RULE OF OUR LAW THAT, SAVE
IN EXCEPTIONAL CIRCUMSTANCES NOT PRESENT HERE, AN OPTION CAN ONLY BE
EXERCISED IN CONFORMITY TO ITS TERMS AND NEVER AFTER THE TIME FIXED FOR
ITS EXPIRATION.  WATERMAN V. BANKS, 144 U.S. 394, 401-3; KELSEY V.
CROWTHER, 162 U.S. 404, 409; LORD RANELAGH V. MELTON, 2 DREWRY & SMALE
278. 

PETITIONER HAS FURNISHED US WITH NO PERSUASIVE EVIDENCE THAT THE LAW
IS OTHERWISE IN PUERTO RICO.  ON THE CONTRARY THE PUERTO RICAN SUPREME
COURT'S DECISION THAT THE OPTION WAS NECESSARILY ASSIGNED WITH THE
MORTGAGE IS NOT WITHOUT SUPPORT IN THE STATUTORY PROVISIONS WHICH IT
CITED, AND TO WHICH WE HAVE REFERRED.  FN2 WHETHER THE OPTION WAS SO
TRANSFERRED OR NOT IT IS DIFFICULT TO SEE UPON WHAT LEGAL THEORY ANY
SYSTEM OF LAW COULD IN THE CIRCUMSTANCES OF THIS CASE READ INTO AN
OPTION TO PURCHASE, A TERM PROLONGING THE PERIOD SPECIFIED FOR ITS
EXERCISE.  PETITIONER HAS ADVANCED NO SUCH THEORY AND CITES NO
AUTHORITY WHICH WOULD SUPPORT IT. 

AS WE HAVE SAID IN THE DECASTRO CASE, THE DUTY OF THE COURT OF
APPEALS AND OF THIS COURT TO EXAMINE AND APPRAISE LOCAL LAW IN CASES
BROUGHT FOR REVIEW FROM THE INSULAR COURTS CANNOT ORDINARILY BE
DISCHARGED SUMMARILY.  BUT FULL ARGUMENT IN THIS CASE HAS NOT DEVELOPED
ANY ISSUE OF PUERTO RICAN LAW, OR ANY QUESTION OF THE DEFERENCE RIGHTLY
TO BE PAID TO THE DECISIONS OF THE HIGHEST COURT OF PUERTO RICO, SO
SUBSTANTIAL AS TO PRECLUDE THE SUMMARY DISPOSITION MADE OF THIS CASE BY
THE COURT OF APPEALS.  AFFIRMED. 

FN1  ARTICLE 152 OF THE PUERTO RICO MORTGAGE LAW PROVIDES: 

"A MORTGAGE CREDIT MAY BE CONVEYED OR ASSIGNED TO A THIRD PERSON IN
WHOLE OR IN PART, PROVIDED IT BE EFFECTED BY MEANS OF A PUBLIC
INSTRUMENT, NOTICE OF WHICH IS GIVEN TO THE DEBTOR, AND THAT IT BE
RECORDED IN THE REGISTRY. 

"THE DEBTOR SHALL NOT BE BOUND BY SAID CONTRACT TO ANY FURTHER EXTENT
THAN HE WAS BY HIS OWN. 

"THE ASSIGNEE SHALL BE SUBROGATED TO ALL THE RIGHTS OF THE
ASSIGNOR." 


"THE SALE OR ASSIGNMENT OF A CREDIT INCLUDES THAT OF ALL THE
ACCESSORY RIGHTS, SUCH AS THE SECURITY, MORTGAGE, PLEDGE, OR
PRIVILEGE." 


"THE PLEDGE AND THE MORTGAGE ARE INDIVISIBLE, EVEN IF THE DEBT SHOULD
BE DIVIDED AMONG THE LEGAL REPRESENTATIVES OF THE DEBTOR OR OF THE
CREDITOR. 

"THEREFORE, AN HEIR OF THE DEBTOR WHO MAY HAVE PAID A PART OF THE
DEBT CAN NOT REQUEST THAT THE PLEDGE OR MORTGAGE BE PROPORTIONATELY
EXTINGUISHED AS LONG AS THE DEBT HAS NOT BEEN PAID IN FULL. 

"NEITHER CAN THE HEIR OF THE CREDITOR, WHO RECEIVED HIS PART OF THE
DEBT, RETURN THE PLEDGE NOR CANCEL THE MORTGAGE TO THE PREJUDICE OF THE
OTHER HEIRS WHO HAVE NOT BEEN PAID." 

FN2  AS THE PUERTO RICAN SUPREME COURT POINTED OUT, THE OPTION HERE
COULD PROPERLY BE REGARDED AS "AN ACCESSORY RIGHT" OR "PRIVILEGE,"
WITHIN THE MEANING OF SEC. 1418 OF THE CIVIL CODE, QUOTED SUPRA NOTE
1.  SEE MANRESA, COMMENTARIES ON THE CIVIL CODE, VOL. 10, PP. 402-9. 
..END :
























UNIVERSAL OIL CO. V. GLOBE CO., 322 U.S. 471 


NO. 392.  ARGUED MARCH 3, 1944.  - DECIDED MAY 29, 1944.  - 137 F.2D 3,
AFFIRMED. 


1.  IN RESOLVING A CONFLICT BETWEEN CIRCUIT COURTS OF APPEALS WHICH,
AS TO THE SAME PATENT AND UPON SUBSTANTIALLY THE SAME FACTS, REACHED
CONFLICTING CONCLUSIONS AS TO INFRINGEMENT, THIS COURT WILL REEXAMINE
CONCURRENT FINDINGS OF THE DISTRICT COURT AND THE CIRCUIT COURT OF
APPEALS.  P. 473. 

2.  PATENT NO. 1,392,629, TO DUBBS, FOR A PROCESS FOR PRODUCING
GASOLINE AND OTHER LIGHTER OILS FROM HEAVY CRUDE OILS, HELD NOT
INFRINGED BY A PROCESS WHICH, IN THE STEP CORRESPONDING TO THE B TUBES
OF DUBBS, RELIES UPON SUBSTANTIAL VAPORIZATION.  P. 484. 

"WITHOUT SUBSTANTIAL VAPORIZATION" AS USED IN THE DUBBS PATENT MEANS
THAT THE GENERATION AND RELEASE OF VAPORS IN THE B TUBES IS TO BE
AVOIDED SO THAT THE CHARGE WILL ENTER THE C TUBES FOR CRACKING AS
NEARLY AS MAY BE IN THE LIQUID PHASE.  P. 482. 

3.  EGLOFF PATENT NO. 1,537,593, FOR AN IMPROVEMENT ON THE DUBBS
PROCESS FOR PRODUCING LIGHTER FROM HEAVIER OILS, HELD INVALID FOR WANT
OF INVENTION.  P. 486. 

UNIVERSAL OIL PRODUCTS CO. V. GLOBE OIL & REFINING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 320 U.S. 730, TO REVIEW A JUDGMENT WHICH, ON APPEAL FROM
A JUDGMENT OF THE DISTRICT COURT, 40 F.SUPP.  575, IN A SUIT FOR
INFRINGEMENT OF PATENTS, HELD THE PATENTS NOT INFRINGED. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER SUED THE RESPONDENT FOR INFRINGEMENT OF UNITED STATES
PATENTS NO. 1,392,629, DATED OCTOBER 4, 1921, AND NO. 1,537,593, DATED
MAY 12, 1925.  THE FORMER WAS ISSUED TO CARBON P. DUBBS; THE LATTER, TO
GUSTAV EGLOFF.  THESE PATENTS COVER THE DUBBS PROCESS FOR CONVERTING
HEAVY CRUDE OILS TO LIGHTER OILS, ESPECIALLY GASOLINE.  THE CLAIMED
INFRINGEMENT ARISES FROM THE RESPONDENT'S USE FOR THE PURPOSE OF SUCH
CONVERSION OF THE "WINKLER KOCH PROCESS" IN APPARATUS DESIGNED AND
INSTALLED BY THE WINKLER KOCH ENGINEERING COMPANY.  THE DISTRICT COURT
DISMISSED THE BILL ON FINDINGS OF FACT TO THE EFFECT THAT PATENT NO.
1,392,629 WAS VALID BUT NOT INFRINGED, AND THAT PATENT NO. 1,537,593
WAS INVALID, WITHOUT FINDINGS ON THE ISSUE OF INFRINGEMENT.  FN1  THE
MAJORITY OF THE CIRCUIT COURT OF APPEALS FOUND BOTH PATENTS NOT
INFRINGED AND DID NOT PASS ON THEIR VALIDITY; JUDGE LINDLEY WAS OF
OPINION THAT THE DUBBS PATENT WAS INFRINGED BUT THAT BOTH PATENTS WERE
INVALID.  FN2  THE COURT OF APPEALS FOR THE THIRD CIRCUIT FOUND THE
SAME PATENTS TO BE VALID AND INFRINGED BY THE USE OF A PROCESS
SUBSTANTIALLY SIMILAR TO RESPONDENT'S IN ROOT REFINING CO. V. UNIVERSAL
OIL PRODUCTS CO., 78 F.2D 991.  TO RESOLVE THE CONFLICT THUS PRESENTED
WE GRANTED CERTIORARI, 320 U.S. 730. 

WHERE THE QUESTIONS PRESENTED BY THE CONTESTED CLAIMS OF INFRINGEMENT
AND VALIDITY ARE PURELY FACTUAL, THIS COURT ORDINARILY ACCEPTS THE
CONCURRENT CONCLUSIONS OF THE DISTRICT COURT AND CIRCUIT COURT OF
APPEALS IN THESE CASES.  GOODYEAR CO. V. RAY-O-VAC CO., 321 U.S. 275. 
BUT IN RESOLVING CONFLICTING VIEWS OF TWO CIRCUIT COURTS OF APPEALS AS
TO A SINGLE PATENT, WE ARE OBLIGED TO UNDERTAKE AN INDEPENDENT
REEXAMINATION OF THE FACTUAL QUESTIONS.  SANITARY REFRIGERATOR CO. V.
WINTERS, 280 U.S. 30, 35-6. 

THE PATENTS AND THE ALLEGEDLY INFRINGING PROCESS CONCERN COMMERCIAL
METHODS FOR CONVERTING PETROLEUM, AS IT IS FOUND IN NATURE, INTO THE
GASOLINE IN EVERYDAY USE AS MOTOR FUEL.  THE EXPERTS WHO TESTIFIED IN
THE DISTRICT COURT HAVE STATED SOME OF THE THEORETICAL BACKGROUND OF
THE PROCESSES USED, AND A BRIEF SUMMARY OF THIS MATERIAL MAY FACILITATE
UNDERSTANDING OF THE PROCESS INVOLVED. 

LAYMAN AND CHEMIST ALIKE ARE OF COURSE FAMILIAR WITH THE CONCEPTION
OF THE ATOMS OF "CHEMICAL ELEMENTS" AS THE BASIC BUILDING BLOCKS OF
ORDINARY CHEMICAL COMPOUNDS.  FN3  THE ATOMS OF THE "ELEMENTS" HAVE THE
CAPACITY TO COMBINE WITH THE ATOMS OF OTHER ELEMENTS TO FORM THE
MOLECULES OF "CHEMICAL COMPOUNDS," WHOSE PROPERTIES SEEM TO DEPEND
DIRECTLY UPON THE NATURE OF THE MOLECULE.  IN THE FIELD OF OIL
CHEMISTRY, THE OUTSTANDING FACT IS THE EXTRAORDINARY ABILITY OF CARBON
AND HYDROGEN TO COMBINE WITH EACH OTHER INTO MOLECULES CONTAINING
WIDELY VARYING NUMBERS OF CARBON ATOMS WITH DIFFERENT PROPORTIONS OF
HYDROGEN ATOMS IN AN ALMOST UNLIMITED NUMBER OF DIFFERENT STRUCTURAL
ARRANGEMENTS.  THESE COMBINATIONS, GENERICALLY TERMED HYDROCARBONS, ARE
PRESENT IN GREAT VARIETY IN CRUDE OIL. 

THE HYDROCARBONS DIFFER WIDELY FROM ONE ANOTHER IN THEIR PHYSICAL
PROPERTIES, PARTICULARLY IN THE PROPERTY OF VOLATILITY, WHICH IS OF
PRIME IMPORTANCE IN MOTOR FUELS.  AS ONE MIGHT EXPECT, THE HYDROCARBONS
COMPOSED OF LARGE MOLECULES WITH MANY CARBON ATOMS ARE HEAVY, SLUGGISH
LIQUIDS WITH RELATIVELY HIGH BOILING POINTS; THEY ARE NOT SUITABLE FOR
USE AS GASOLINE.  THOSE WITH SMALLER MOLECULES ARE MUCH MORE VOLATILE -
INDEED, THE VERY SMALLEST ARE GASES AT ORDINARY TEMPERATURES. 

THE INITIAL STEP IN THE PREPARATION OF GASOLINE FROM CRUDE OIL
INVOLVES NO MOLECULAR CHANGE; IT CONSISTS MERELY IN SEPARATING THE
LIGHT HYDROCARBONS IN THE NATURAL MIXTURE FROM THE HEAVY HYDROCARBONS. 
THIS STEP IS ACCOMPLISHED BY HEATING THE OIL UNTIL IT VAPORIZES AND
THEN CARRYING THE VAPORS THROUGH A DEVICE FAMILIAR TO INDUSTRIAL
CHEMISTRY UNDER THE NAME OF A FRACTIONATING TOWER.  SUCH A TOWER IS IN
EFFECT A SERIES OF CONDENSERS IN WHICH THE VAPOR MIXTURE IS COOLED AND
THE LIQUID CONDENSATE DRAWN OFF IN SEPARATE STEPS.  FIRST THE HIGH
BOILING POINT CONSTITUENTS, REACHING A LIQUID PHASE AFTER RELATIVELY
LITTLE COOLING, ARE CONDENSED AND WITHDRAWN; THIS PROCESS IS REPEATED
ON THE REMAINING CONSTITUENTS IN SUCCESSIVE STEPS AS THE VAPORS COOL,
UNTIL THERE REMAIN ONLY THOSE LOW BOILING POINT HYDROCARBONS SUITABLE
FOR USE AS GASOLINE. 

BY FRACTIONAL DISTILLATION ALONE, A TYPICAL SAMPLE OF MID-CONTINENT
CRUDE OIL MIGHT YIELD APPROXIMATELY 25% GASOLINE, 5-7% KEROSENE, 30%
GAS OIL, AND A BALANCE OF 38-40% FUEL OIL.  THE FRACTION REMAINING
AFTER THE DISTILLATION OF GASOLINE OR GASOLINE AND KEROSENE IS TERMED
"TOPPED CRUDE." 

FOR MANY YEARS THE COMMERCIAL PETROLEUM INDUSTRY CARRIED THE
PRODUCTION OF GASOLINE FROM CRUDE OIL NO FARTHER THAN THIS INITIAL STEP
OF SEPARATING IT FROM THE MIXTURE.  BUT WITH THE INTRODUCTION OF THE
AUTOMOBILE, THE DEMAND FOR GASOLINE INCREASED RAPIDLY, AND IT BECAME
NECESSARY TO DEVELOP COMMERCIAL APPARATUS FOR THE CONVERSION OF HEAVY
HYDROCARBON MOLECULES TO LIGHT HYDROCARBON MOLECULES BY THE CHEMICAL
PROCESS KNOWN AS "CRACKING."  FN4  CHEMISTS HAD LONG KNOWN THAT BY
HEATING THE HEAVIER HYDROCARBONS TO TEMPERATURES OF THE ORDER OF 750
900 DEGREE FAHRENHEIT, IT WAS POSSIBLE TO DECOMPOSE THE HEAVY MOLECULES
INTO LIGHTER MOLECULES WITH FEWER CARBON ATOMS, WITH THE MAXIMUM
DECOMPOSITION RESULTING FROM FAIRLY PROLONGED APPLICATION OF HEAT.  FN5
THE BREAKDOWN OF THE HEAVY MOLECULES INTO LIGHTER ONES WAS
ACCOMPANIED, HOWEVER, BY A CONCURRENT PHENOMENON - NAMELY, THE
FORMATION OF EVEN HEAVIER HYDROCARBONS AND THE DEPOSIT OF SOLID MATTER
CALLED "COKE" OR "CARBON."  LIKEWISE, AT THE TEMPERATURES USED THE OIL
BOILED, AND IF THE VAPORS WERE NOT RELEASED (AND THEY COULD NOT BE IF
HEAT WAS TO BE APPLIED FOR A LONG PERIOD OF TIME), HIGH PRESSURES
DEVELOPED IN THE STILL.  AND AS THE CRACKING OPERATION YIELDED PRODUCTS
OF INCREASING VOLATILITY, THIS PRESSURE WOULD, APPARENTLY, RISE AS THE
REACTION PROGRESSED. 

THE ENGINEERING PROBLEMS INVOLVED IN THE REDUCTION OF THE LABORATORY
KNOWLEDGE OF CRACKING TO COMMERCIAL PRACTICE WERE FORMIDABLE, SINCE THE
PRESSURES AND TEMPERATURES EMPLOYED CARRIED SEVERE RISKS OF FIRE AND
EXPLOSION.  THE FIRST COMMERCIAL PROCESS WAS INTRODUCED ABOUT 1913 -
THE SO-CALLED BURTON PROCESS.  BURTON HEATED THE CHARGE - GAS OIL - IN
A SIMPLE TANK, OR SHELL STILL.  THE TANK WAS NOT CONTINUOUSLY FED; A
CHARGE OF 8,250 GALLONS WAS PUMPED INTO IT AND BROUGHT TO A TEMPERATURE
OF 700-750 DEGREE OVER A PERIOD OF SOME 12 HOURS UNDER AUTOGENOUS GAS
PRESSURE OF 75 POUNDS.  THE CRACKING OPERATION WAS THEN CONTINUED FOR
24 HOURS.  THE VAPORS LIBERATED IN THE STILL WERE CONDUCTED THROUGH AN
INCLINED LINE TO AN AERIAL CONDENSER, WHERE THE HEAVIER AND LESS
VOLATILE VAPORS WERE LIQUEFIED AND DRAINED BACK INTO THE STILL THROUGH
THE SAME VAPOR LINE, THERE TO BE MIXED WITH THE UNVAPORIZED RESIDUE AND
SUBJECTED TO FURTHER CRACKING.  THIS FIRST FRACTION OF THE VAPORS WAS
CALLED "REFLUX CONDENSATE"; THE UNLIQUEFIED VAPORS WERE CARRIED TO A
SECOND CONDENSER AND LIQUEFIED AS "PRESSURE DISTILLATE," A LIQUID
CONVERTIBLE BY FURTHER REFINING OPERATIONS, NOT HERE RELEVANT, TO
COMMERCIAL GASOLINE. 

THE COKE DEPOSITED DURING CRACKING TENDED TO CAUSE UNEVEN HEATING OF
THE SHELL STILL, WITH RESULTANT FORMATION OF WEAK SPOTS AND DANGER OF
EXPLOSION.  CONSEQUENTLY, IT WAS NECESSARY TO SHUT DOWN THE STILL AFTER
ABOUT 24 HOURS OF CRACKING TO PERMIT THE COKE TO BE CLEANED OUT.  THE
CLEANING AND PRE-HEATING PROCESSES CONSUMED ABOUT HALF THE OPERATING
TIME; THE GASOLINE YIELD RANGED ONLY ABOUT 25-28% OF THE GAS OIL
CHARGE; AND THE MENACE OF EXPLOSION WAS SERIOUS.  THE BURTON PROCESS
WAS MODIFIED AND IMPROVED SOMEWHAT IN 1915 BY THE INTRODUCTION OF THE
BURTON-CLARK PROCESS, WHICH DIFFERED IN THAT IT DID NOT APPLY HEAT
DIRECTLY TO THE SHELL STILL, BUT INSTEAD CIRCULATED THE OIL IN THE
STILL BY CONVECTION THROUGH A SEPARATE HEATING COIL.  THIS IMPROVEMENT
INCREASED THE YIELD TO SOME 30-32%.  THE BURTON-CLARK PROCESS
CONSTITUTED THE GENERAL INDUSTRIAL PRACTICE AT THE TIME OF DUBBS'
PATENT. 

CHEMICAL ENGINEERS IN THE REFINING INDUSTRY WERE ENGAGED IN
CONTINUOUS RESEARCH LOOKING TO THE SOLUTION OF THE COKING PROBLEM AND
THE DEVELOPMENT OF A PROCESS WHICH MIGHT OPERATE CONTINUOUSLY, WITHOUT
WASTEFUL PERIODIC SHUT-DOWNS OF EXPENSIVE PLANT EQUIPMENT.  THE
PROCESSES IN SUIT ARE AMONG THE RESULTS OF THEIR EFFORTS. 

DUBBS PATENT NO. 1,392,629, THE ALLEGED INFRINGEMENT OF WHICH FORMS
THE BASIS OF THIS ACTION, COVERS A PROCESS FIRST DEMONSTRATED IN A
PILOT PLANT AT INDEPENDENCE, KANSAS, IN 1919.  THE OIL CHARGE IS FED
THROUGH A NEST OF HEATED TUBES - CALLED "B TUBES" - ABOUT FOUR INCHES
IN DIAMETER - A HEATING PROCESS NOT UNLIKE THAT USED IN BURTON-CLARK. 
THE HEATED OIL IS THEN DELIVERED TO TUBES OF ABOUT TEN INCHES DIAMETER
"C TUBES" - WHICH ARE ONLY PARTLY FILLED WITH LIQUID OIL.  THE C TUBES
ARE INSULATED, BUT UNHEATED OR ONLY LIGHTLY HEATED TO PREVENT THE
ESCAPE OF HEAT BY RADIATION.  HERE THE VAPOR GENERATED AS THE RESULT OF
HEATING AND CRACKING PASSES FROM THE LIQUID OIL AND IS CARRIED TO VAPOR
LINE CONDENSERS OF THE SAME GENERAL KIND USED IN THE BURTON SYSTEM. 
THE FIRST VAPORS TO CONDENSE - THAT IS, THE REFLUX CONDENSATE - ARE
RETURNED TO THE B TUBES FOR FURTHER HEATING AND CRACKING; THE LIGHTER
VAPORS ARE CARRIED TO A SECOND CONDENSER TO BECOME GASOLINE.  THE
UNVAPORIZED RESIDUE OF LIQUIDS AND SUSPENDED SOLID PARTICLES IN THE C
TUBES IS CONTINUOUSLY WITHDRAWN FROM THE SYSTEM; THUS ONLY THE LIGHT
OILS OF THE REFLUX CONDENSATE, WHICH HAVE BUT A LIMITED TENDENCY TO
FORM COKE, ARE RECYCLED THROUGH THE B TUBES.  SUCH DEPOSIT OF COKE IN
THE LIGHTLY HEATED C TUBES AS OCCURS INVOLVES NO MARKED DANGER OF
EXPLOSION, AND IT PRECLUDES CLOGGING OF THE SMALLER SUPERHEATED B
TUBES.  GAS OIL SUBJECTED TO THE DUBBS PROCESS HAS BEEN MADE TO YIELD
40-50% GASOLINE, AND CONTINUOUS RUNS OF FROM TEN TO TWENTY DAYS ARE
USUAL. 

IN THE COMMERCIAL PRACTICE OF THE DUBBS PATENT, A SIMPLE VAPOR
SEPARATION TANK USUALLY TAKES THE PLACE OF THE C TUBES. 

THE POINTS OF SIMILARITY AND DISSIMILARITY TO THE BURTON-CLARK
PROCESS ARE WORTH NOTING.  BURTON-CLARK SUBJECTED TO PROLONGED HEATING
THE UNVAPORIZED HYDROCARBONS AS WELL AS THE LIGHT REFLUX CONDENSATE. 
SINCE THESE HEAVY HYDROCARBONS HAVE THE GREATEST TENDENCY TO FORM STILL
HEAVIER OILS AND TO DEPOSIT CARBON, THEIR WITHDRAWAL FROM THE APPARATUS
WAS AN IMPORTANT ADVANCE.  THE CONTINUOUS FEED SYSTEM OF THE DUBBS
APPARATUS WAS ALSO REGARDED AS AN IMPROVEMENT ON BURTON'S BATCH
PROCESS.  BURTON-CLARK CIRCULATED THROUGH THE HEATING TUBES THE HEAVY
OILS FORMED DURING CRACKING; DUBBS PERMITTED ONLY A MIXTURE OF FRESH
OIL AND REFLUX CONDENSATE TO PASS THROUGH HIS FURNACE COIL. 

THE EGLOFF PATENT COVERS AN IMPROVEMENT ON THE DUBBS PROCESS. 

AS WE POINTED OUT AT P. 474, SUPRA, THE INITIAL STEP IN THE
SEPARATION OF GASOLINE FROM CRUDE OIL IS FRACTIONAL DISTILLATION; THEN
GAS OIL, THE FRACTION NEXT BELOW GASOLINE AND KEROSENE, IS SUBJECTED TO
CRACKING IN A SPECIAL APPARATUS.  THE FUEL OIL FRACTION HAS SUCH A
STRONG TENDENCY TO FORM VERY HEAVY HYDROCARBONS AND COKE THAT IT IS
UNDESIRABLE AS A CHARGE FOR THE HIGH-TEMPERATURE HEATING COIL IN THE
CRACKING SYSTEMS.  FN6  WHAT EGLOFF PROPOSED WAS A RELATIVELY MILD
HEATING OF THE HEAVY OILS IN A SEPARATE FURNACE - THUS FUEL OIL OR
TOPPED CRUDE MIGHT BE USED AS A CHARGE.  THE TEMPERATURE AND PRESSURE
WOULD BE SUFFICIENT TO OCCASION A MILD CRACKING; THE VAPORS MIGHT THEN
BE DELIVERED TO THE SAME VAPOR SEPARATION TANK USED WITH THE HIGH
TEMPERATURE HEATING TUBES, AND THE REFLUX CONDENSATE FROM THESE VAPORS
MIGHT BE USED AS THE CHARGE FOR THE HIGH-TEMPERATURE TUBES.  THE
SUBSTANTIAL EFFECT IS TO SUBJECT FUEL OIL OR TOPPED CRUDE, FROM WHICH
THE CHARGE FOR A DUBBS PLANT WAS OFTEN SEPARATED BY SEPARATE
DISTILLATION, TO A DISTILLATION AND MILD CRACKING OPERATION, USING THE
VAPOR SEPARATING TANK AND THE CONDENSER APPARATUS OF THE DUBBS PLANT
INSTEAD OF USING SEPARATE APPARATUS TO PREPARE THE DUBBS CHARGE. 

THE APPARATUS OF RESPONDENT'S WINKLER-KOCH PROCESS CLOSELY RESEMBLES
THE APPARATUS OF THE DUBBS-EGLOFF SYSTEM.  OIL IS HEATED IN EITHER THE
HIGH-TEMPERATURE OR LOW-TEMPERATURE FURNACE, DEPENDING ON THE KIND OF
OIL USED; THE HEATED OIL IS DELIVERED TO A VAPOR SEPARATION TANK; THE
REFLUX CONDENSATE FLOWS BACK TO THE HIGH-TEMPERATURE COIL FOR FURTHER
CRACKING. 

THE DIFFERENCES BETWEEN THE PROCESSES, AS DISTINGUISHED FROM THE
APPARATUS, ARE MORE MARKED.  DUBBS TAUGHT THE HEATING OF THE OIL CHARGE
IN THE B TUBES "WITHOUT SUBSTANTIAL VAPORIZATION."  THUS THE
ILLUSTRATIVE RUN IN THE PATENT SUGGESTS THE HEATING OF OIL TO A
TEMPERATURE OF 750 DEGREE TO 860 DEGREE F., WITH A PRESSURE OF ABOUT
100 POUNDS TO THE SQUARE INCH, RESULTING FROM VAPORIZATION, MAINTAINED
IN BOTH B AND C TUBES.  IN THE RESPONDENT'S PROCESS, OIL ENTERS THE
HEATING COILS AT A TEMPERATURE OF 590 DEGREE AND LEAVES AT A
TEMPERATURE OF 940 DEGREE; A PRESSURE OF 500 POUNDS TO THE SQUARE INCH
IS MAINTAINED IN THE HEATING COIL.  SOME 85% OF THE OIL BY WEIGHT AND
95% BY VOLUME REACHES A VAPOR PHASE IN THE HEATING COILS.  THE OIL IN
MIXED LIQUID AND VAPOR PHASE ENTERS THE VAPOR SEPARATION TANK THROUGH A
PRESSURE REDUCTION VALVE, SO THAT THE PRESSURE IN THE TANK IS 26 POUNDS
AS COMPARED TO THE 500 POUNDS OF THE HEATING COIL.   THE COURTS BELOW
BELIEVED THAT THESE DIFFERENCES WERE SUFFICIENT TO PREVENT THE
RESPONDENT'S PROCESS FROM INFRINGING THE CLAIMS OF THE DUBBS PATENT.  A
TYPICAL CLAIM IS CLAIM 5, AS FOLLOWS:    "5.  A CONTINUOUS PROCESS FOR
CRACKING HYDROCARBONS CONSISTING IN PASSING THE SAME IN A STREAM IN AN
ADVANCING DIRECTION FROM AN INLET POINT TO A DISCHARGE POINT SEPARATED
AND ENTIRELY DISASSOCIATED FROM THE INLET POINT, SUBJECTING THE
MATERIAL IN THE FIRST STAGE OF ITS TRAVEL TO A CRACKING TEMPERATURE
WHILE PREVENTING SUBSTANTIAL VAPORIZATION, AFFORDING A VAPORIZATION
SPACE ABOVE THE STREAM DURING THE SECOND STAGE OF THE TRAVEL THEREOF TO
SAID DISCHARGE POINT, TAKING OFF THE VAPORS FROM SAID VAPOR SPACE AND
SUBJECTING THEM TO A CONDENSING ACTION, DISCHARGING INTO THE STREAM AT
A POINT REMOTE FROM THAT WHERE VAPORIZATION OCCURS A PORTION OF THE
CONDENSATES AND MAINTAINING A VAPOR PRESSURE ON THE MATERIAL UNDER
TREATMENT DURING DISTILLATION AND CONDENSATION." 

IT IS APPARENT THAT THE ISSUE OF INFRINGEMENT OF THE DUBBS PATENT
TURNS ON THE CONSTRUCTION TO BE GIVEN THE WORDS, "WITHOUT SUBSTANTIAL
VAPORIZATION," AS THEY ARE USED IN THE CLAIM.  THE PETITIONER ARGUES
THAT WHAT IS CLAIMED IS THAT THERE IS NO RELEASE OF VAPORS FROM THE
LIQUID IN THE B TUBES; THE RESPONDENT ARGUES THAT IT IS MEANT THAT NO
LIQUID OIL PASSES INTO A VAPOR PHASE IN THE B TUBES, THAT IS, THAT
THERE IS NO VAPOR GENERATION IN THE B TUBES. 

EITHER CONSTRUCTION WOULD BE CONSISTENT WITH THE OPERATION OF A
CRACKING PROCESS.  BY APPLYING SUFFICIENT PRESSURE, IT IS POSSIBLE TO
PREVENT THE GENERATION OF VAPOR FROM OIL EVEN AT THE RELATIVELY HIGH
CRACKING TEMPERATURES.  THE GASOLINE YIELDED BY CRACKING OIL IN LIQUID
PHASE IS CHEMICALLY DIFFERENT FROM THAT YIELDED BY VAPOR PHASE
CRACKING, AND AT THE DATE OF THE PATENT, THE LIQUID PHASE PRODUCT WAS
PREFERRED.  THE YIELD OF VAPOR CRACKING WAS A MALODOROUS YELLOW MIXTURE
REQUIRING ADDITIONAL REFINING OPERATIONS TO MAKE IT MARKETABLE;
HOWEVER, SINCE 1919 GASOLINE FORMED BY VAPOR CRACKING HAS BECOME MORE
HIGHLY REGARDED BECAUSE OF ITS SUPERIOR ANTIKNOCK CHARACTERISTICS. 

THE PARTIES ARE WHOLLY AT ODDS AS TO THE NATURE OF THE PROCESS TAUGHT
BY DUBBS IN HIS PATENT SPECIFICATIONS.  THE PETITIONER CONTENDS THAT
CRACKING TAKES PLACE IN THE B TUBES WITH RESULTANT GENERATION OF VAPOR,
AND THAT IN THE C TUBES THE VAPOR IS MERELY SET FREE FROM THE LIQUID
OIL.  THE RESPONDENT ARGUES THAT THE ONLY FUNCTION OF THE B TUBES IS TO
FURNISH ENOUGH HEAT TO CAUSE CRACKING, AND THAT THE OIL ACTUALLY CRACKS
WHILE IT IS IN THE C TUBES.  THE CRACKING PROCESS, IT WILL BE
REMEMBERED, REQUIRES THAT THE OIL BE KEPT AT A HIGH TEMPERATURE FOR
SOME TIME IF SUBSTANTIAL GASOLINE IS TO BE FORMED, AND THE RESPONDENT
COMPARES THE PROCESS TAUGHT BY DUBBS TO THE FAMILIAR FIRELESS COOKER,
IN WHICH A VESSEL WITH HEAT-KEEPING QUALITIES IS FIRST HEATED AND THEN
REMOVED FROM THE FLAME WHILE COOKING GOES ON WITH THE HEAT FIRST
SUPPLIED. 

THE PATENT SEVERAL TIMES REFERS TO THE B TUBES AS "CRACKING TUBES" OR
AS THE "CRACKING ZONE."  IN ITS RELEVANT PARTS, THE PATENT DESCRIBES
THE PROCESS IN THE FOLLOWING TERMS: 

"DESCRIBING THE OPERATION OF THE PROCESS, THE MATERIAL TO BE TREATED
IS DRAWN FROM ANY SUITABLE SOURCE BY MEANS OF THE PUMP J AND DISCHARGED
THEREFROM THROUGH LINE J INTO AND THROUGH TUBES B AND DURING THE TIME
THEY ARE PASSING THROUGH SAID TUBES, THEY ARE SUBJECTED TO SUFFICIENT
HEAT TO CAUSE THE DESIRED AMOUNT OF CRACKING.  SAID OIL IS THEN PASSED
INTO THE TUBES C WHICH ARE ONLY PARTIALLY FILLED WITH THE OIL AND AS
THE OIL PASSES THROUGH THESE TUBES, THERE IS A LIBERATION OF VAPORS
FROM SAME AND WHICH VAPORS PASS UP THROUGH THE VAPOR TUBES D, E. ... 

"A LIGHT FIRE MAY BE MAINTAINED UNDER THE TUBES C AS SHOWN IN THE
DRAWINGS OR SAID TUBES MAY BE HEAVILY INSULATED  ...  TO PREVENT LOSS
OF HEAT BY RADIATION AND THEREBY DISPENSE WITH THE FIRE UNDER THE TUBES
C. ...  THE PER CENT. OF VAPORS GENERATED FROM THE OIL AS IT PASSES
THROUGH THE TUBES C WILL DEPEND ON THE AMOUNT OF HEAT ACQUIRED BY SAID
OIL WHILE PASSING THROUGH THE 4" COILS." 

THE PETITIONER REFERS, ALSO, TO CLAIM 5, WHICH SPECIFIES "A
VAPORIZATION SPACE ABOVE THE STREAM" IN THE C TUBES.  THESE WORDS, WE
ARE TOLD, MUST NECESSARILY REFER TO A SPACE IN WHICH VAPORS ARE
RELEASED, NOT GENERATED.  THIS DOES NOT ADVANCE PETITIONER'S ARGUMENT,
HOWEVER, AS THE SPACE REFERRED TO, AS SHOWN BY THE SUBSEQUENT WORDS OF
CLAIM 5, IS SIMPLY SPACE TO HOLD RELEASED VAPOR, THAT IS, "VAPOR
SPACE."  NEITHER VAPOR SEPARATION NOR VAPOR GENERATION TAKES PLACE IN
THE SPACE ABOVE THE STREAM. 

RESPONDENT TOO SUPPORTS ITS ARGUMENT THAT NOT EVEN GENERATION OF
VAPORS WAS ENVISAGED BY THE DUBBS PATENT LIMITATION AGAINST
"SUBSTANTIAL VAPORIZATION" BY REFERENCE TO THE PATENT.  IT POINTS OUT
THAT AS THE PATENT DOES NOT DEFINE "VAPORIZATION," THE WORD IS USED IN
THE ACCEPTED SENSE OF CHEMICAL NOMENCLATURE.  THE USE OF THE WORD
"VAPORIZATION" IN THE PATENT TO SHOW WHAT TAKES PLACE IN THE C COILS IS
STRESSED BY RESPONDENT AS INDICATIVE OF THE MEANING WITH WHICH THE WORD
WAS USED BY DUBBS.  FN7  THE RESPONDENT SAYS THIS MEANS GENERATION AS
WELL AS RELEASE OF VAPORS BECAUSE THE PATENT SAYS, "THE PER CENT OF
VAPORS GENERATED FROM THE OIL AS IT PASSES THROUGH THE TUBES C WILL
DEPEND ON THE AMOUNT OF HEAT ACQUIRED BY SAID OIL WHILE PASSING THROUGH
THE 4" (B) COILS."  IT IS SAID THAT THE PATENT CONSISTENTLY DESCRIBES
THE CHARGE IN THE B TUBES AS "OIL," AND NEVER AS VAPOR OR MIXED OIL AND
VAPOR OR FOAM. 

THE PETITIONER ARGUES THAT THE READING OF THE PATENT WHICH RESPONDENT
ASKS WOULD RESULT IN AN INOPERATIVE PROCESS UNDER THE CONDITIONS OF THE
ILLUSTRATIVE RUN.  IT SEEMS TO BE CONCEDED THAT OIL HEATED TO 750
DEGREE AT 100 POUNDS PRESSURE WOULD NOT VAPORIZE, BUT IN ORDER FOR
CRACKING TO TAKE PLACE IN THE C TUBES, IT WOULD BE NECESSARY TO FURNISH
SOME ADDITIONAL HEAT TO REPLACE THAT CONSUMED IN THE CRACKING
REACTION.  AT THE HIGHER TEMPERATURES SUGGESTED IN THE ILLUSTRATIVE
RUN, MUCH HIGHER PRESSURES THAN THE 100 POUNDS CALLED FOR BECOME
NECESSARY TO PRECLUDE VAPORIZATION, ALTHOUGH THE HEATED OIL WOULD, IN
COOLING FROM THE HIGHER TEMPERATURES, PROVIDE THE HEAT NECESSARY FOR
THE CRACKING REACTION IN THE C TUBES.  BUT EVEN THOUGH EXPERIMENTATION
AT LOW PRESSURES WOULD SHOW GENERATION OF VAPOR IN THE B TUBES, THIS
WILL NOT CONTROL THE LANGUAGE OF THE CLAIM. 

WE AGREE WITH RESPONDENT'S POSITION AS TO THE TEACHING OF THE
PATENT.  WE ARE OF THE VIEW THAT "WITHOUT SUBSTANTIAL VAPORIZATION" AS
USED IN THE PATENT MEANS THAT THE GENERATION AND RELEASE OF VAPORS IN
THE B TUBES IS TO BE AVOIDED SO THAT THE CHARGE WILL ENTER THE C TUBES
FOR CRACKING AS NEARLY AS MAY BE IN THE LIQUID PHASE.  IT CLEARLY
APPEARS FROM THE HISTORY OF DUBBS' APPLICATION IN THE PATENT OFFICE
THAT THE USE OF THE PHRASE WAS PURPOSEFUL.  IT WAS INSERTED AFTER THE
PATENT OFFICE HAD DISALLOWED CLAIMS WITHOUT THE PHRASE AND IT WAS
EVIDENTLY ADDED TO CLARIFY THE DESCRIPTION OF THE STEPS OF THE PROCESS
AND THE CLAIMS OF NOVELTY.  CF. EXHIBIT SUPPLY CO. V. ACE CORP., 315
U.S. 126, 136.  THE IMPORTANCE IS EVIDENT FROM THE HISTORY OF THE TRADE
SINCE, AS POINTED OUT ABOVE, AT THE TIME OF DUBBS' APPLICATION GASOLINE
OBTAINED BY CRACKING THE CHARGE IN LIQUID PHASE WAS MORE DESIRABLE THAN
THE GASOLINE OBTAINED FROM VAPOR PHASE CRACKING.  FN8 

THE DISTINCTION MADE BY THE CONTROVERTED PHRASE IS OF PRACTICAL
IMPORTANCE.  DUBBS PATENTED A PROCESS FOR CONVERTING HYDROCARBONS
THROUGH CRACKING.  THE DIFFICULTY IN THE PRIOR ART WAS CARBON DEPOSIT
OR COKING.  IF IN THIS PROCESS THE CRACKING OPERATION IS PRESSED TO
SUBSTANTIAL COMPLETION IN THE B TUBES, THE PATENT SEEMS TO FAIL TO
TEACH A METHOD OF PREVENTING COKING IN THOSE TUBES.  COKE THERE WILL
CERTAINLY BE AS A RESULT OF THE CRACKING; WHAT WOULD PREVENT ITS
DEPOSIT?  IT MAY BE POSSIBLE TO PREVENT THE DEPOSIT OF CARBON BY
MAINTAINING A RAPID TURBULENT FLOW; INDEED, WE ARE TOLD THAT THIS IS
THE DEVICE USED IN THE COMMERCIAL APPLICATION OF BOTH PARTIES'
PROCESSES, AND BEHIMER, ANOTHER ENGINEER WORKING IN THE CRACKING FIELD,
ATTRIBUTED THE FAILURE OF A SIMILAR APPARATUS (SEE PATENT NO.
1,883,850) TO THE WANT OF A PUMP OF SUFFICIENTLY HIGH PRESSURE TO
MAINTAIN THE NECESSARY VELOCITY OF FLOW.  BUT THE PATENT, WHILE IT
CALLS FOR A PUMP TO INJECT THE CHARGE INTO THE B TUBES, DOES NOT POINT
OUT THE NEED OF USING RAPID FLOW FOR THIS PURPOSE; THE PRESSURE WITHIN
THE APPARATUS IS EXPRESSLY REFERRED SOLELY TO VAPORIZATION.  ONE
BUILDING A DEVICE ACCORDING TO DUBBS' TEACHING MIGHT, IF HE READ THE
PATENT AS TEACHING THAT CRACKING WAS TO OCCUR IN THE B TUBES, CONTENT
HIMSELF WITH USING RELATIVELY SHORT B TUBES AND A CORRESPONDINGLY SLOW
FLOW TO FURNISH CRACKING TIME.  THAT PROCEDURE WOULD PRESUMABLY LEAD TO
COKING; THE PATENT, HOWEVER, DOES NOT DESCRIBE HOW THAT RESULT MAY BE
AVOIDED. 

THERE IS A REASON OF CONTROLLING IMPORTANCE WHY THE PROTECTION OF THE
DUBBS PATENT MUST BE LIMITED TO A PROCESS IN WHICH CRACKING TAKES PLACE
LARGELY IN THE C TUBES. 

AS A REWARD FOR INVENTIONS AND TO ENCOURAGE THEIR DISCLOSURE, THE
UNITED STATES OFFERS A SEVENTEEN-YEAR MONOPOLY TO AN INVENTOR WHO
REFRAINS FROM KEEPING HIS INVENTION A TRADE SECRET.  BUT THE QUID PRO
QUO IS DISCLOSURE OF A PROCESS OR DEVICE IN SUFFICIENT DETAIL TO ENABLE
ONE SKILLED IN THE ART TO PRACTICE THE INVENTION ONCE THE PERIOD OF THE
MONOPOLY HAS EXPIRED; AND THE SAME PRECISION OF DISCLOSURE IS LIKEWISE
ESSENTIAL TO WARN THE INDUSTRY CONCERNED OF THE PRECISE SCOPE OF THE
MONOPOLY ASSERTED.  BENE V. JEANTET, 129 U.S. 683, 685-86; GENERAL
ELECTRIC CO. V. WABASH CORP., 304 U.S. 364, 368. 

IN A PROCESS PATENT IN THE REFINING OF OIL, PRECISENESS OF
DESCRIPTION IS ESSENTIAL.  IT IS A CROWDED ART. HOPE FOR SUCCESS FOR
NEW PATENTED PROCESSES WITH SLIGHT VARIATIONS FROM THOSE IN USE CAUSED
LARGE EXPENDITURES IN TESTING THEIR EFFICIENCY BY IMPORTANT COMPANIES
WITH STAFFS OF SPECIALISTS WHO WERE SKILLED IN THE ART. AMONG THE
PROCESSES CITED TO US AS PRIOR ART ADVANCES ON BURTON-CLARK, THOSE OF
HALL PATENT NO. 1,175,910, ALEXANDER PATENT NO. 1,407,619, AND BEHIMER
PATENT NO. 1,883,850 WERE EMBODIED IN EXPERIMENTAL PLANTS, AND THE
TESTIMONY IS REPLETE WITH REFERENCES TO SUCH OTHER CONTEMPORARY
EXPERIMENTAL OR WORKING CRACKING SYSTEMS AS THE HOLMES-MANLEY, FLEMING,
AND CROSS PROCESSES.  THE CLAIM IS THE MEASURE OF THE GRANT.  SMITH V.
SNOW, 294 U.S. 1, 11.  THE CLAIM IS REQUIRED TO BE SPECIFIC FOR THE
VERY PURPOSE OF PROTECTING THE PUBLIC AGAINST EXTENSION OF THE SCOPE OF
THE PATENT.  WHITE V. DUNBAR, 119 U.S. 47, 52; MINERALS SEPARATION V.
BUTTE MINING CO., 250 U.S. 336, 347; KNICK V. BOWES "SEAL FAST" CORP.,
25 F.2D 442, 443.  THE APPLICANTS FOR THE PATENT THOUGHT THE PHRASE
"WITHOUT SUBSTANTIAL VAPORIZATION" IN THE B TUBES IMPORTANT.  WHILE
VARYING THE DETAILS OF A PROCESS DOES NOT AVOID INFRINGEMENT, TILGHMAN
V. PROCTOR, 102 U.S. 707, WHEN THE ACCUSED PROCESS DOES NOT
SUBSTANTIALLY FOLLOW THE MODE TAUGHT IN THE PATENT, THERE IS NO
INFRINGMENT.  IN VIEW OF THE IMPORTANCE OF THE DIRECTION AS TO THE NON
GENERATION OF VAPORS IN THE B TUBES, AS HEREINBEFORE POINTED OUT, WE DO
NOT THINK A PROCESS WHICH RELIES ON VAPORIZATION IN THE B TUBES CAN BE
SAID TO INFRINGE THE PATENTED PROCESS. 

THE EGLOFF PATENT DOES NOT REQUIRE EXTENDED CONSIDERATION.  IT MAY
FAIRLY BE SAID THAT THE EGLOFF PATENT, DESCRIBED ABOVE AT P. 478, WAS
AN IMPROVEMENT ON THE DUBBS SYSTEM.  THE IMPROVEMENT CONSISTED IN
PROVIDING A CLEAN CHARGING STOCK FOR THE B TUBES BY HEATING CRUDE OR
FUEL OIL IN COILS WHICH ARE CONTAINED IN A SEPARATE HEATING APPARATUS
FROM THE ONE USED TO HEAT THE CLEANED STOCK, AND DISCHARGING IT IN A
LIQUID PHASE INTO AN EXPANSION CHAMBER.  THE UNVAPORIZED OIL IS
WITHDRAWN FROM THE EXPANSION CHAMBER AND DOES NOT REENTER THE SYSTEM. 
THE VAPOR IS LIQUEFIED IN A PARTIAL CONDENSER OR DEPHLEGMATOR, AND THE
REFLUX CONDENSATE IS PUMPED AS A CHARGE INTO THE B TUBES OR APPARATUS
SUBSTANTIALLY SIMILAR IN FORM AND OPERATION TO THE DUBBS PATENT.  THE
REFLUX CONDENSATE AFTER PASSING THROUGH THE B COILS REENTERS THE SAME
EXPANSION CHAMBER THAT IS USED FOR ITS PREPARATION.  FN9  NOTHING IS
SAID IN THE EGLOFF PATENT AS TO VAPORIZATION IN THE B TUBES. 

IT SEEMS OBVIOUS THAT THE DUBBS PATENT ANTICIPATED ALL THE STEPS OF
THE PROCESS EXCEPT THE SEPARATE TREATMENT OF THE HEAVY OIL.  THE CLEAN
CHARGE OF THE REFLUX CONDENSATE WAS BROUGHT ABOUT BY THE WITHDRAWAL OF
THE RESIDUE OF UNVAPORIZED OIL, AND THIS WITHDRAWAL WAS OLD IN THE ART.
FN10 AS THERE IS NOTHING IN THE CLAIMS OR SPECIFICATION TO SHOW ANY
RELIANCE UPON WHERE VAPORIZATION, WHETHER BY GENERATION OR LIBERATION,
TAKES PLACE, SUCH DIFFERENCE AS THERE MAY BE BETWEEN THIS PATENT AND
DUBBS AS TO THAT PHENOMENON IS NOT SIGNIFICANT.  BUT WE SEE NOTHING IN
THE ADDITION OF THE EXTRA STILL THAT INVOLVES INVENTION.  IN
RETROSPECT, IT APPEARS ALMOST INEVITABLE THAT ONCE A SATISFACTORY
CONTINUOUS FEED CRACKING APPARATUS WAS DEVELOPED, CHEMICAL ENGINEERS
WOULD PROMPTLY DESIGN EQUIPMENT FOR INTEGRATING THE INITIAL
DISTILLATION OF CRUDE OR FUEL OIL, WITH WHATEVER CRACKING MIGHT BE
PRACTICABLE, WITH THE GAS OIL CRACKING PROCESS TO FORM A CONTINUOUS
OPERATION.  RETROSPECTIVE SIMPLICITY IS OFTEN A MISLEADING TEST OF
INVENTION WHERE IT APPEARS THAT THE PATENTEE'S CONCEPTION IN FACT
SOLVED A RECOGNIZED PROBLEM THAT HAD BAFFLED THE CONTEMPORARY ART; BUT
IN THIS CASE EGLOFF ADVANCED HIS IMPROVEMENT SHORTLY AFTER DUBBS
DISCLOSED THE UNDERLYING PROCESS AND BEFORE DUBBS' SYSTEM HAD HAD WIDE
COMMERCIAL USE; HENCE CONTEMPORARY WORKERS HAD NO OCCASION TO DEAL WITH
WHATEVER ENGINEERING PROBLEMS MIGHT HAVE BEEN INVOLVED.  WE HAVE,
THEREFORE, A CONCEPTION WHICH IS ON ITS FACE TOO OBVIOUS TO CONSTITUTE
PATENTABLE INVENTION, AND WHICH WAS ADVANCED SHORTLY AFTER ANY NEED OF
IT AROSE.  WE THINK THE DISTRICT COURT WAS RIGHT IN FINDING THE EGLOFF
PATENT INVALID.  AFFIRMED.    FN1  UNIVERSAL OIL PRODUCTS CO. V. GLOBE
OIL & REFINING CO., 40 F.SUPP.  575. 

FN2  UNIVERSAL OIL PRODUCTS CO. V. GLOBE OIL & REFINING CO., 137 F.2D
3.    FN3  THIS CASE DOES NOT REQUIRE CONSIDERATION OF ANY THEORY AS TO
THE INTERNAL CHARACTER OF THE ATOM. 

FN4  SEE STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163, 167. 

FN5  IT HAS BEEN STATED, HOWEVER, THAT CRACKING IS AN ALMOST
INSTANTANEOUS REACTION IN THE VAPOR PHASE PROCESSES CARRIED OUT AT
TEMPERATURES ABOVE 950 DEGREE F. SEE DE FLOREZ, PROFITS FROM CRACKING
IN VAPOR PHASE, XIX NATIONAL PETROLEUM NEWS NO. 49(DEC.  7, 1927), PP.
32, 33. 

FN6  FUEL OIL CAN BE DIRECTLY CHARGED TO A DUBBS SYSTEM, BUT THE RUN
MUST BE GREATLY SHORTENED. 

FN7  "THE HEATED OIL THEN PASSES TO THE 10 INCH C COILS WHICH ARE
MAINTAINED ABOUT HALF FULL OF OIL AND WHEREIN VAPORIZATION TAKES
PLACE." 

FN8  BUT SEE UNIVERSAL OIL PRODUCTS CO. V. GLOBE OIL & REFINING CO.,
40 F.SUPP.  575; 137 F.2D 3. 

FN9  A TYPICAL CLAIM (5) READS AS FOLLOWS: 

"5.  A PROCESS OF OIL CONVERSION, CONSISTING IN MAINTAINING A BODY OF
HEATED HYDROCARBONS IN AN ENLARGED ZONE WHERE SUBSTANTIAL VAPORIZATION
OCCURS, IN SUBJECTING THE VAPORS TO REFLUX CONDENSATION TO CONDENSE THE
HEAVIER VAPORS, IN PASSING THE REFLUX CONDENSATE IN AN ADVANCING STREAM
THROUGH A HEATING ZONE WHERE IT IS SUBJECTED TO CRACKING CONDITIONS OF
TEMPERATURE AND PRESSURE, IN DELIVERING HEATED CONDENSATE TO SAID
ENLARGED ZONE, AND SIMULTANEOUSLY HEATING AN INDEPENDENT STREAM OF
CHARGING OIL FOR DELIVERY TO SAID ENLARGED ZONE TO A TEMPERATURE
SUFFICIENT TO CAUSE A SUBSTANTIAL VAPORIZATION THEREOF IN SAID ZONE, IN
INTRODUCING SAID HEATED CHARGING OIL TO THE ENLARGED ZONE, AND IN
WITHDRAWING UNVAPORIZED OIL FROM SAID ENLARGED ZONE WITHOUT PERMITTING
THE SAME TO AGAIN ENTER EITHER OF SAID OIL STREAMS." 

FN10  EGLOFF WAS NOT THE FIRST PATENTEE TO REALIZE THE ADVISABILITY
OF WITHDRAWING THE HEAVIER OILS; DUBBS CERTAINLY ANTICIPATED HIM, AS
DID BEHIMER, NO. 1,883,850; GREENSTREET, NO. 1,740,691; ALEXANDER, NO.
1,407,619; AND HALL, NO. 1,175,910. 
..END :















FELDMAN V. UNITED STATES, 322 U.S. 487 


NO. 193.  ARGUED DECEMBER 17, 1943.  - DECIDED MAY 29, 1944.  - 136 F.2D
394, AFFIRMED. 


THE FIFTH AMENDMENT DOES NOT FORBID THE USE IN EVIDENCE AGAINST A
DEFENDANT IN A CRIMINAL CASE IN A FEDERAL COURT OF SELF-INCRIMINATING
TESTIMONY THERETOFORE COMPELLED - UNDER A STATE IMMUNITY STATUTE AND
WITHOUT PARTICIPATION BY FEDERAL OFFICERS - IN PROCEEDINGS IN A STATE
COURT.  P. 492. 

FELDMAN V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 320 U.S. 724, TO REVIEW THE AFFIRMANCE OF A CONVICTION,
UNDER SEC. 215 OF THE CRIMINAL CODE, FOR USING THE MAILS TO DEFRAUD. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN INDICTMENT UNDER SECTION 215 OF THE CRIMINAL CODE, 18
U.S.C. SEC. 338, FOR USING THE MAILS TO FURTHER A FRAUDULENT SCHEME. 
PETITIONER'S CONVICTION WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS,
ONE JUDGE DISSENTING.  136 F.2D 394.  WE BROUGHT THE CASE HERE, 320
U.S. 724, TO CONSIDER THE SINGLE QUESTION WHETHER THE ADMISSION OF
TESTIMONY PREVIOUSLY GIVEN BY PETITIONER IN SUPPLEMENTARY PROCEEDINGS
IN A STATE COURT DEPRIVED HIM OF THE PROTECTION OF THE FIFTH AMENDMENT
AGAINST BEING "COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF." 

IN ACCORDANCE WITH NEW YORK PROCEDURE, KNOWN AS SUPPLEMENTARY
PROCEEDINGS, DESIGNED TO AID IN THE DISCOVERY OF ASSETS OF A DEBTOR,
N.Y. CIVIL PRACTICE ACT, ART. 45, FELDMAN, A JUDGMENT DEBTOR, WAS
CALLED AS A WITNESS IN SUCH PROCEEDINGS ON SEVERAL OCCASIONS BETWEEN
MARCH 31, 1936, AND SEPTEMBER 29, 1939.  UP TO MARCH 14, 1938, THE NEW
YORK IMMUNITY STATUTE MERELY PROVIDED THAT A DEBTOR MIGHT NOT BE
EXCUSED FROM TESTIFYING BECAUSE OF SELF-CRIMINATION BUT THAT HIS
TESTIMONY COULD NOT BE USED IN EVIDENCE IN A SUBSEQUENT CRIMINAL
PROCEEDING AGAINST HIM.  N.Y. LAWS, 1935, C. 630, SEC. 789.  BY AN ACT
OF MARCH 14, 1938, NEW YORK BROADENED THE DEBTOR'S IMMUNITY SO AS TO
FREE HIM FROM PROSECUTION ON ACCOUNT OF ANY MATTER REVEALED IN HIS
TESTIMONY.  N.Y. LAWS, 1938, C. 108, SEC. 17; N.Y. CIVIL PRACTICE ACT,
SEC. 789.  WHILE THE EARLIER PROVISION WAS IN EFFECT, FELDMAN TESTIFIED
THAT HE WAS UNEMPLOYED, PAID RENT OF $250 A MONTH FROM FUNDS SUPPLIED
BY HIS FAMILY, OWED ABOUT $340,000 AND CONTEMPLATED IMMEDIATE
BANKRUPTCY.  HE FURTHER TESTIFIED THAT ABOUT ONCE A MONTH HIS FATHER
SENT HIM A BOOK OF SIGNED CHECKS, HE SENT LARGE SUMS OF MONEY TO HIS
FATHER BY WESTERN UNION AND DESTROYED WHATEVER EVIDENCE THE RECEIPTS
MIGHT OFFER - IN SHORT, THAT HE WAS "KITING" HIS FATHER'S CHECKS BY
SENDING THE PROCEEDS OF THE LATER CHECKS TO COVER THOSE CASHED
EARLIER.  AFTER MARCH 14, 1938, AND DOWN THROUGH SEPTEMBER, 1939,
FELDMAN AGAIN TESTIFIED IN NEW YORK SUPPLEMENTARY PROCEEDINGS, GIVING
FURTHER DETAILS OF HIS BIZARRE "KITING" PRACTICES. 

THE FEDERAL CHARGE WAS THE USE OF THE MAILS IN A SCHEME TO DEFRAUD
EXECUTED BY "KITING" CHECKS.  IN THE TRIAL, THE GOVERNMENT INTRODUCED
FELDMAN'S TESTIMONY IN THE NEW YORK SUPPLEMENTARY PROCEEDINGS.  HE DID
NOT TAKE THE STAND.  THE GOVERNMENT CONTENDS THAT IT IS UNNECESSARY TO
DECIDE WHETHER THE CLAIM OF PRIVILEGE DULY MADE BARS THE ADMISSION OF
THIS TESTIMONY.  IT SUGGESTS THAT TESTIMONY GIVEN PRIOR TO THE ACT OF
MARCH 14, 1938, WAS NOT COMPELLABLE AND THEREFORE FELDMAN WAIVED ANY
PRIVILEGE, IN THAT THE NEW YORK STATUTE PRIOR TO MARCH 14, 1938, DID
NOT GRANT AN IMMUNITY COEXTENSIVE WITH THE PRIVILEGE AVAILABLE UNDER
NEW YORK LAW.  PEOPLE EX REL. LEWISOHN V. O'BRIEN, 176 N.Y. 253, 68
N.E. 353.  AS TO TESTIMONY UNDER THE LATER NEW YORK STATUTE, THE
GOVERNMENT SUGGESTS THAT IT EITHER WAS NOT INCRIMINATING OR WAS MERELY
REPETITIVE OF THE EARLIER VOLUNTARY TESTIMONY, MAKING ITS ADMISSION IN
ANY EVENT NOT PREJUDICIAL. 

WE PUT TO ONE SIDE ALL THESE SUBTLER ISSUES BECAUSE WE THINK THEY
CANNOT DISPOSE OF THE CASE.  AND SO WE COME DIRECTLY TO THE MAIN
QUESTION, NAMELY WHETHER THE FIFTH AMENDMENT PROHIBITED THE ADMISSION
AGAINST FELDMAN UPON HIS TRIAL IN A FEDERAL COURT OF THE EARLIER
TESTIMONY GIVEN BY HIM IN THE STATE COURTS.  WHILE THE POINT HAS NOT
BEEN FORMALLY DECIDED, WE DEEM THE ANSWER TO BE CONTROLLED BY A LONG
SERIES OF DECISIONS EXPRESSING BASIC PRINCIPLES OF OUR FEDERATION. 

THE EFFECTIVE ENFORCEMENT OF A WELL-DESIGNED PENAL CODE IS OF COURSE
INDISPENSABLE FOR SOCIAL SECURITY.  BUT THE BILL OF RIGHTS WAS ADDED TO
THE ORIGINAL CONSTITUTION IN THE CONVICTION THAT TOO HIGH A PRICE MAY
BE PAID EVEN FOR THE UNHAMPERED ENFORCEMENT OF THE CRIMINAL LAW AND
THAT, IN ITS ATTAINMENT, OTHER SOCIAL OBJECTS OF A FREE SOCIETY SHOULD
NOT BE SACRIFICED.  WE ARE IMMEDIATELY CONCERNED WITH THE FOURTH AND
FIFTH AMENDMENTS, INTERTWINED AS THEY ARE, AND EXPRESSING AS THEY DO
SUPPLEMENTING PHASES OF THE SAME CONSTITUTIONAL PURPOSE - TO MAINTAIN
INVIOLATE LARGE AREAS OF PERSONAL PRIVACY.  SEE BOYD V. UNITED STATES,
116 U.S. 616, 630.  "THE EFFORTS OF THE COURTS AND THEIR OFFICIALS TO
BRING THE GUILTY TO PUNISHMENT, PRAISEWORTHY AS THEY ARE, ARE NOT TO BE
AIDED BY THE SACRIFICE OF THOSE GREAT PRINCIPLES (OF THE FOURTH AND
FIFTH AMENDMENTS) ESTABLISHED BY YEARS OF ENDEAVOR AND SUFFERING WHICH
HAVE RESULTED IN THEIR EMBODIMENT IN THE FUNDAMENTAL LAW OF THE LAND." 
WEEKS V. UNITED STATES, 232 U.S. 383, 393.  "WE HAVE ALREADY NOTICED
THE INTIMATE RELATION BETWEEN THE TWO AMENDMENTS.  THEY THROW GREAT
LIGHT ON EACH OTHER.  FOR THE 'UNREASONABLE SEARCHES AND SEIZURES'
CONDEMNED IN THE FOURTH AMENDMENT ARE ALMOST ALWAYS MADE FOR THE
PURPOSE OF COMPELLING A MAN TO GIVE EVIDENCE AGAINST HIMSELF, WHICH IN
CRIMINAL CASES IS CONDEMNED IN THE FIFTH AMENDMENT; AND COMPELLING A
MAN 'IN A CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF,' WHICH IS
CONDEMNED IN THE FIFTH AMENDMENT, THROWS LIGHT ON THE QUESTION AS TO
WHAT IS AN 'UNREASONABLE SEARCH AND SEIZURE' WITHIN THE MEANING OF THE
FOURTH AMENDMENT.  AND WE HAVE BEEN UNABLE TO PERCEIVE THAT THE SEIZURE
OF A MAN'S PRIVATE BOOKS AND PAPERS TO BE USED IN EVIDENCE AGAINST HIM
IS SUBSTANTIALLY DIFFERENT FROM COMPELLING HIM TO BE A WITNESS AGAINST
HIMSELF."  BOYD V. UNITED STATES, SUPRA, AT 633. 

BUT FOR MORE THAN ONE HUNDRED YEARS, EVER SINCE BARRON V. BALTIMORE,
7 PET. 243, ONE OF THE SETTLED PRINCIPLES OF OUR CONSTITUTION HAS BEEN
THAT THESE AMENDMENTS PROTECT ONLY AGAINST INVASION OF CIVIL LIBERTIES
BY THE GOVERNMENT WHOSE CONDUCT THEY ALONE LIMIT.  BROWN V. WALKER, 161
U.S. 591, 606; JACK V. KANSAS, 199 U.S. 372, 380; TWINING V. NEW
JERSEY, 211 U.S. 78.  CONVERSELY, A STATE CANNOT BY OPERATING WITHIN
ITS CONSTITUTIONAL POWERS RESTRICT THE OPERATIONS OF THE NATIONAL
GOVERNMENT WITHIN ITS SPHERE.  THE DISTINCTIVE OPERATIONS OF THE TWO
GOVERNMENTS WITHIN THEIR RESPECTIVE SPHERES IS BASIC TO OUR FEDERAL
CONSTITUTIONAL SYSTEM, HOWSOEVER COMPLICATED AND DIFFICULT THE
PRACTICAL ACCOMMODATIONS TO IT MAY BE.  THE MATTER WAS PUT IN CLASSIC
TERMS IN WHAT CHIEF JUSTICE TAFT CALLED "THE GREAT JUDGMENT," PONZI V.
FESSENDEN, 258 U.S. 254, 261, OF CHIEF JUSTICE TANEY IN ABLEMAN V.
BOOTH, 21 HOW.  506, 516:  "THE POWERS OF THE GENERAL GOVERNMENT, AND
OF THE STATE, ALTHOUGH BOTH EXIST AND ARE EXERCISED WITHIN THE SAME
TERRITORIAL LIMITS, ARE YET SEPARATE AND DISTINCT SOVEREIGNTIES, ACTING
SEPARATELY AND INDEPENDENTLY OF EACH OTHER, WITHIN THEIR RESPECTIVE
SPHERES.  AND THE SPHERE OF ACTION APPROPRIATED TO THE UNITED STATES IS
AS FAR BEYOND THE REACH OF THE JUDICIAL PROCESS ISSUED BY A STATE JUDGE
OF A STATE COURT, AS IF THE LINE OF DIVISION WAS TRACED BY LANDMARKS
AND MONUMENTS VISIBLE TO THE EYE." 

THIS PRINCIPLE HAS GOVERNED A SERIES OF DECISIONS WHICH FOR ALL
PRACTICAL PURPOSES RULE THE PRESENT CASE.  WHEN THIS COURT FOR THE
FIRST TIME SUSTAINED AN IMMUNITY STATUTE AS ADEQUATE, IT REJECTED THE
ARGUMENT THAT BECAUSE FEDERAL IMMUNITY COULD NOT BAR USE IN A STATE
PROSECUTION OF TESTIMONY COMPELLED IN A FEDERAL COURT, THE IMMUNITY
FALLS SHORT OF THE CONSTITUTIONAL REQUIREMENT.  BROWN V. WALKER, SUPRA,
AT 606.  AND WHEN THE REVERSE CLAIM WAS MADE AS TO A STATE IMMUNITY
STATUTE, THAT A DISCLOSURE COMPELLED IN A STATE COURT COULD NOT ASSURE
IMMUNITY IN A FEDERAL COURT, THE ARGUMENT WAS AGAIN REJECTED BECAUSE
"THE STATE (ANTI-TRUST) STATUTE COULD NOT, OF COURSE, PREVENT A
PROSECUTION OF THE SAME PARTY UNDER THE UNITED STATES (ANTI-TRUST)
STATUTE, AND IT COULD NOT PREVENT THE TESTIMONY GIVEN BY THE PARTY IN
THE STATE PROCEEDING FROM BEING USED AGAINST THE SAME PERSON IN A
FEDERAL COURT FOR A VIOLATION OF THE FEDERAL STATUTE, IF IT COULD BE
IMAGINED THAT SUCH PROSECUTION WOULD BE INSTITUTED UNDER SUCH
CIRCUMSTANCES."  JACK V. KANSAS, SUPRA, AT 380.  WHEN THE MATTER WAS
HERE LAST IT WAS THUS SUMMARIZED:  "THIS COURT HAS HELD THAT IMMUNITY
AGAINST STATE PROSECUTION IS NOT ESSENTIAL TO THE VALIDITY OF FEDERAL
STATUTES DECLARING THAT A WITNESS SHALL NOT BE EXCUSED FROM GIVING
EVIDENCE ON THE GROUND THAT IT WILL INCRIMINATE HIM, AND ALSO THAT THE
LACK OF STATE POWER TO GIVE WITNESSES PROTECTION AGAINST FEDERAL
PROSECUTION DOES NOT DEFEAT A STATE IMMUNITY STATUTE.  THE PRINCIPLE
ESTABLISHED IS THAT FULL AND COMPLETE IMMUNITY AGAINST PROSECUTION BY
THE GOVERNMENT COMPELLING THE WITNESS TO ANSWER IS EQUIVALENT TO THE
PROTECTION FURNISHED BY THE RULE AGAINST COMPULSORY SELF
INCRIMINATION."  UNITED STATES V. MURDOCK, 284 U.S. 141, 149. 

AND SO, WHILE EVIDENCE SECURED THROUGH UNREASONABLE SEARCH AND
SEIZURE BY FEDERAL OFFICIALS IS INADMISSIBLE IN A FEDERAL PROSECUTION,
WEEKS V. UNITED STATES, SUPRA; GOULED V. UNITED STATES, 255 U.S. 298;
AGNELLO V. UNITED STATES, 269 U.S. 20, INCRIMINATING DOCUMENTS SO
SECURED BY STATE OFFICIALS WITHOUT PARTICIPATION BY FEDERAL OFFICIALS
BUT TURNED OVER FOR THEIR USE ARE ADMISSIBLE IN A FEDERAL PROSECUTION. 
BURDEAU V. MCDOWELL, 256 U.S. 465.  RELEVANT TESTIMONY IS NOT BARRED
FROM USE IN A CRIMINAL TRIAL IN A FEDERAL COURT UNLESS WRONGFULLY
ACQUIRED BY FEDERAL OFFICIALS.  "IF KNOWLEDGE OF THEM (THE FACTS) IS
GAINED FROM AN INDEPENDENT SOURCE THEY MAY BE PROVED LIKE ANY OTHERS,
BUT THE KNOWLEDGE GAINED BY THE GOVERNMENT'S OWN WRONG CANNOT BE USED
BY IT  ..."  SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385,
392.  THIS COURT HAS REFUSED TO DRAW NICE DISTINCTIONS AS TO WHEN
WRONGFUL ACQUISITION OF EVIDENCE BY STATE AGENCIES WAS ALSO A FEDERAL
ENTERPRISE.  WHEN A REPRESENTATIVE OF THE UNITED STATES IS A
PARTICIPANT IN THE EXTORTION OF EVIDENCE OR IN ITS ILLICIT ACQUISITION,
HE IS CHARGED WITH EXERCISING THE AUTHORITY OF THE UNITED STATES. 
EVIDENCE SO SECURED MAY BE REGAINED, GO-BART CO. V. UNITED STATES, 282
U.S. 344, AND ITS ADMISSION, AFTER TIMELY MOTION FOR ITS SUPPRESSION,
VITIATES A CONVICTION.  BYARS V. UNITED STATES, 273 U.S. 28. 

THE CONSTITUTION PROHIBITS AN INVASION OF PRIVACY ONLY IN PROCEEDINGS
OVER WHICH THE GOVERNMENT HAS CONTROL.  THERE IS NO SUGGESTION OF
COMPLICITY BETWEEN FELDMAN'S CREDITORS AND FEDERAL LAW-ENFORCING
OFFICERS.  THE GOVERNMENT HERE IS NOT SEEKING TO BENEFIT BY EVIDENCE
WHICH IT EXTORTED.  IT HAD NO POWER EITHER TO COMPEL TESTIMONY IN THE
STATE COURT OR TO FORESTALL SUCH DISCLOSURE AS A MEANS OF AVOIDING
POSSIBLE INTERFERENCE WITH THE ENFORCEMENT OF THE FEDERAL PENAL CODE. 
WHETHER TESTIMONY IN A NEW YORK COURT SHOULD BE COMPELLED IN EXCHANGE
FOR IMMUNITY FROM PROSECUTION UNDER THE PENAL LAWS OF NEW YORK IS FOR
NEW YORK TO SAY.  FOR WHAT PURPOSES THE UNITED STATES MAY DEEM THE
DISCLOSURE OF TESTIMONY MORE IMPORTANT THAN PROSECUTION FOR FEDERAL
CRIMES IS FOR CONGRESS TO SAY.  IT HAS SEEN FIT TO MAKE THE EXCHANGE
VERY SPARINGLY.  SEE UNITED STATES V. MONIA, 317 U.S. 424.  CERTAINLY
IT IS NOT FOR NEW YORK TO DETERMINE WHEN, BECAUSE IT SUITS ITS LOCAL
POLICY TO EMPLOY TESTIMONIAL COMPULSION, IT WILL RELIEVE FROM FEDERAL
PROSECUTION "FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER OR THING
CONCERNING WHICH" A NEW YORK COURT MAY HAVE SEEN FIT TO REQUIRE
TESTIMONY.  SUCH WOULD BE THE PRACTICAL RESULT OF SUSTAINING
PETITIONER'S CLAIM.  THE IMMUNITY FROM PROSECUTION, LIKE THE PRIVILEGE
AGAINST TESTIFYING WHICH IT SUPPLANTS, PERTAINS TO A PROSECUTION IN THE
SAME JURISDICTION.  OTHERWISE THE CRIMINAL LAW OF THE UNITED STATES
WOULD BE AT THE HAZARD OF CARELESSNESS OR CONNIVANCE IN SOME PETTY
CIVIL LITIGATION IN ANY STATE COURT, QUITE BEYOND THE REACH EVEN OF THE
MOST ALERT WATCHFULNESS BY LAW OFFICERS OF THE GOVERNMENT.  SEE NARDONE
V. UNITED STATES, 308 U.S. 338. 

ONLY A WORD NEED BE SAID ABOUT THE PHRASE OF SCEPTICISM IN JACK V.
KANSAS, SUPRA, AT 380, THAT IT COULD HARDLY BE IMAGINED "THAT SUCH
PROSECUTION WOULD BE INSTITUTED UNDER SUCH CIRCUMSTANCES."  THE
"PROSECUTION" AND THE "CIRCUMSTANCES" THERE REFERRED TO WERE A
PROSECUTION ON THE SAME FACTS FOR VIOLATION OF THE STATE AND THE
FEDERAL ANTI-TRUST LAWS.  BUT SEE FOX V. OHIO, 5 HOW.  410, 435; UNITED
STATES V. LANZA, 260 U.S. 377.  THE CAUTIONARY WORDS IN JACK V. KANSAS
IN NOWISE QUALIFIED THE PRINCIPLE OF THAT AND LATER CASES AS TO THE
SEPARATENESS IN THE OPERATION OF STATE AND FEDERAL CRIMINAL LAWS AND
STATE AND FEDERAL IMMUNITY PROVISIONS.  THERE ARE, AS WE HAVE ALREADY
SEEN, AMPLE SAFEGUARDS.  IF A FEDERAL AGENCY WERE TO USE A STATE COURT
AS AN INSTRUMENT FOR COMPELLING DISCLOSURES FOR FEDERAL PURPOSES, THE
DOCTRINE OF THE BYARS CASE, SUPRA, AS WELL AS THAT OF MCNABB V. UNITED
STATES, 318 U.S. 332, AFFORD ADEQUATE RESOURCES AGAINST SUCH AN EVASIVE
DISREGARD OF THE PRIVILEGE AGAINST SELF-CRIMINATION.  SEE UNITED STATES
V. SALINE BANK, 1 PET. 100; UNITED STATES V. MCRAE, L.R. 3 CH. APP.
79.  NOTHING IN THIS RECORD BRINGS EITHER DOCTRINE INTO PLAY.  JUDGMENT
AFFIRMED.    MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING: 

IN BOYD V. UNITED STATES, THIS COURT SAID THAT "ANY COMPULSORY
DISCOVERY BY EXTORTING THE PARTY'S OATH  ...  IS CONTRARY TO THE
PRINCIPLES OF A FREE GOVERNMENT.  IT IS ABHORRENT  ...  TO THE
INSTINCTS OF AN AMERICAN.  IT MAY SUIT THE PURPOSES OF DESPOTIC POWER;
BUT IT CANNOT ABIDE THE PURE ATMOSPHERE OF POLITICAL LIBERTY AND
PERSONAL FREEDOM."  116 U.S. 616, 631-632.  FN1  UNLESS THE COURT NOW
IS DISAVOWING THIS BELIEF, THE USE OF TESTIMONY OBTAINED BY COMPULSORY
DISCOVERY TO CONVICT AN ACCUSED MUST BE CONSIDERED "SHOCKING TO THE
UNIVERSAL SENSE OF JUSTICE" AND "OFFENSIVE TO THE COMMON AND
FUNDAMENTAL IDEAS OF FAIRNESS AND RIGHT," AND THEREFORE, UNDER PAST
DECISIONS OF THE COURT, INCOMPATIBLE WITH CONSTITUTIONAL DUE PROCESS OF
LAW.  BETTS V. BRADY, 316 U.S. 455, 462, 473.  OR AT LEAST, EVEN IF THE
USE OF TESTIMONY EXTRACTED BY COMPULSORY DISCOVERY BE HELD CONSISTENT
WITH DUE PROCESS, ADHERENCE TO THE BELIEF EXPRESSED BY THE BOYD CASE
SHOULD REQUIRE THE COURT TO HOLD THAT, ABSENT A CONFLICTING ACT OF
CONGRESS, "A DECENT REGARD FOR THE DUTY OF COURTS AS AGENCIES OF
JUSTICE AND CUSTODIANS OF LIBERTY FORBIDS THAT MEN SHOULD BE CONVICTED
UPON EVIDENCE" SO OBTAINED.  MCNABB V. UNITED STATES, 318 U.S. 332,
347.  BUT I DO NOT BASE MY DISSENT UPON JUDICIALLY DEFINED CONCEPTS OF
PROCEDURAL DUE PROCESS OR UPON JUDGE-MADE RULES OF EVIDENCE.  THE BILL
OF RIGHTS, PROPOSED IN 1789 BY THE FIRST CONGRESS CONVENED UNDER OUR
CONSTITUTION, AND QUICKLY RATIFIED BY THE STATES IN 1791, DECLARES IN
PART THAT, "NO PERSON  ...  SHALL BE COMPELLED IN ANY CRIMINAL CASE TO
BE A WITNESS AGAINST HIMSELF."  AMEND. V, CONSTITUTION OF THE UNITED
STATES.  NEVER SINCE THE BILL OF RIGHTS WAS ADOPTED, UNTIL TODAY, HAS
THIS COURT SUSTAINED A SINGLE CONVICTION FOR A FEDERAL OFFENSE WHICH
RESTED ON SELF-INCRIMINATORY TESTIMONY FORCED FROM THE ACCUSED.  I
CANNOT AGREE TO DO SO NOW. 

FELDMAN WAS COMPELLED TO TESTIFY UNDER OATH IN A CREDITORS'
COMPULSORY DISCOVERY PROCEEDING IN A NEW YORK COURT CONDUCTED PURSUANT
TO A STATE STATUTE WHICH GRANTED HIM IMMUNITY FROM STATE PROSECUTION
FOR ANY STATE CRIME HE MIGHT BE FORCED TO CONFESS.  HAD HE REFUSED TO
TESTIFY HE COULD HAVE BEEN IMPRISONED.  OVER HIS OBJECTION, A
TRANSCRIPT OF HIS COMPELLED TESTIMONY WAS USED IN THE UNITED STATES
DISTRICT COURT TO CONVICT HIM OF A FEDERAL CRIME.  AS THE FIFTH
AMENDMENT HERETOFORE HAS BEEN INTERPRETED, FELDMAN'S TESTIMONY COULD
NOT HAVE BEEN USED FOR THIS PURPOSE HAD IT BEEN COMPELLED BY A FEDERAL
COURT RATHER THAN THE STATE COURT.  FN2  THIS WOULD HAVE BEEN TRUE
WHETHER THE FEDERAL COURT PROCEEDING HAD BEEN NON-CRIMINAL OR CRIMINAL,
FN3  AND WHETHER FELDMAN HAD TESTIFIED AS A MERE WITNESS OR AS A
DEFENDANT.  FN4  NOR COULD HIS FORCED TESTIMONY HAVE BEEN USED HAD IT
BEEN COMPELLED BY FEDERAL OFFICERS OUTSIDE OF A COURT ROOM; FN5  BY
FOREIGN DETECTIVES IN A FOREIGN COUNTRY INQUIRING INTO COMMISSION OF AN
OFFENSE AGAINST THE UNITED STATES COMMITTED ON THE HIGH SEAS; FN6  OR
BY STATE OFFICERS INTERROGATING A SUSPECT FOR THE PURPOSE OF ENFORCING
A FEDERAL LAW.  FN7  THERE IS, THEN, NO SANCTION IN THE PRECEDENTS OF
THIS COURT FOR VIEWING THE FIFTH AMENDMENT'S PROHIBITION AGAINST
COMPELLED TESTIMONY WITH GRUDGING EYES AND REDUCING ITS SCOPE TO THE
NARROWEST PLAUSIBLE LIMITS.  AS THE DECISIONS REFLECT, THE PREVIOUSLY
DECLARED ATTITUDE OF THE COURT TOWARD THIS PROHIBITION HAS BEEN THAT IT
"MUST HAVE A BROAD CONSTRUCTION IN FAVOR OF THE RIGHT WHICH IT WAS
INTENDED TO SECURE."  COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562;
MCCARTHY V. ARNDSTEIN, 266 U.S. 34. 

TODAY, HOWEVER, THE COURT ADOPTS A DIFFERENT APPROACH TO THE TASK OF
CONSTRUING THE FIFTH AMENDMENT.  WE ARE NOW TOLD THAT UNDER CERTAIN
CIRCUMSTANCES COMPELLED TESTIMONY IS PURGED OF THE FATAL TAINT WHICH
THE FIFTH AMENDMENT PLACES UPON IT, AND THAT AN ACCUSED CAN BE
CONVICTED IN A FEDERAL COURT ON WORDS HE WAS FORCED TO SPEAK.  THE
CIRCUMSTANCES UNDER WHICH IT IS NOW HELD THAT MEN CAN BE FORCED TO
CONVICT THEMSELVES BY THEIR OWN TESTIMONY ARE, (1) THAT THE TESTIMONY
WAS COMPELLED BY STATE OFFICERS, AND (2) THAT THE STATE OFFICERS WERE
NOT ACTING TO ENFORCE FEDERAL LAW.  THESE SLIGHT VARIATIONS IN THE
TECHNIQUES OF COMPULSION ARE CONSIDERED A SUFFICIENT EXCUSE TO ESCAPE
THE FIFTH AMENDMENT'S COMMAND AGAINST THE USE OF COMPELLED TESTIMONY BY
FEDERAL COURTS.  SURELY SUCH A HOLDING IS NOT TO BE JUSTIFIED BY THE
LANGUAGE OF THAT AMENDMENT.  WITHIN ITS SWEEPING PROHIBITION ARE FOUND
NO EXCEPTIONS BASED UPON THE PERSONS WHO COMPEL, THEIR PURPOSE IN
COMPELLING, OR THEIR METHOD OF COMPELLING, WHETHER BY THREATS OF
IMPRISONMENT, PHYSICAL TORTURE, OR OTHER MEANS.  TESTIMONY IS NO LESS
COMPELLED BECAUSE A STATE RATHER THAN A FEDERAL OFFICER COMPELS IT, OR
BECAUSE THE STATE OFFICER APPEARS TO BE PRIMARILY INTERESTED AT THE
MOMENT IN ENFORCING A STATE RATHER THAN A FEDERAL LAW. 

NOR IS THE HOLDING IN THIS CASE TO BE DEFENDED AS ONE WHICH OUR
FEDERAL SYSTEM REQUIRES.  THIS CASE PRESENTS NO CONFLICT BETWEEN
FEDERAL AND STATE SPHERES OF POWER SUCH AS THAT PRESENTED BY CASES
INVOLVING THE VALIDITY OF FEDERAL AND STATE IMMUNITY STATUTES, WHEREIN
IT HAS BEEN CONTENDED, UNSUCCESSFULLY, THAT NEITHER THE UNITED STATES
NOR A STATE CAN COMPEL A WITNESS TO TESTIFY AGAINST HIMSELF UNLESS IT
GRANT HIM COMPLETE IMMUNITY FROM PROSECUTION IN BOTH JURISDICTIONS. 
FN8  FELDMAN'S OBJECTION TO THE USE OF HIS COMPELLED TESTIMONY IS NOT
BASED ON A CLAIM THAT NEW YORK MUST GRANT HIM, OR HAS GRANTED HIM,
IMMUNITY FROM PROSECUTION FOR THE FEDERAL CRIME IT HAS FORCED HIM TO
CONFESS.  HE DOES NOT QUESTION THE POWER OF THE UNITED STATES TO
PROSECUTE HIM FOR THAT CRIME ON PROPER EVIDENCE.  NOR, FOR THAT MATTER,
DOES HE CONTEND THAT THE FIFTH AMENDMENT PREVENTED NEW YORK FROM
COMPELLING HIM TO CONFESS A FEDERAL CRIME.  FN9  HE CLAIMS ONLY THAT
THE FIFTH AMENDMENT'S PROHIBITION AGAINST SELF-INCRIMINATION PREVENTS
THE USE OF HIS COMPELLED TESTIMONY AGAINST HIM IN THE PRESENT
PROCEEDING.  THE VERY NARROW PROBLEM THUS PRESENTED, AND UPON WHICH
THIS COURT NEVER BEFORE HAS PASSED, IS WHETHER FEDERAL COURTS CAN
CONVICT A DEFENDANT OF A FEDERAL CRIME BY USE OF SELF-INCRIMINATORY
TESTIMONY WHICH SOMEONE IN SOME MANNER HAS EXTRACTED FROM HIM AGAINST
HIS WILL.  THE COURT'S HOLDING THAT A DEFENDANT CAN BE SO CONVICTED
CUTS INTO THE VERY SUBSTANCE OF THE FIFTH AMENDMENT.  AND IT JUSTIFIES
THIS RESULT NOT BY THE LANGUAGE OR HISTORY OF THE CONSTITUTION ITSELF,
BUT BY A PROCESS OF SYLLOGISTIC REASONING BASED UPON BROAD PREMISES OF
"DUAL SOVEREIGNTY" STATED IN PREVIOUS OPINIONS OF THE COURT RELATING TO
IMMUNITY STATUTES.  EVEN WERE THERE HERE A "DUAL SOVEREIGNTY" PROBLEM,
WHICH THERE IS NOT, SUCH A METHOD OF DECISION WOULD BE QUESTIONABLE. 
CONSTITUTIONAL INTERPRETATION SHOULD INVOLVE MORE THAN DIALECTICS.  THE
GREAT PRINCIPLES OF LIBERTY WRITTEN IN THE BILL OF RIGHTS CANNOT SAFELY
BE TREATED AS IMPRISONED IN WALLS OF FORMAL LOGIC BUILT UPON VAGUE
ABSTRACTIONS FOUND IN THE UNITED STATES REPORTS.  "THE ULTIMATE
TOUCHSTONE OF CONSTITUTIONALITY IS THE CONSTITUTION ITSELF AND NOT WHAT
WE HAVE SAID ABOUT IT."  GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S.
466, CONCURRING OPINION, 487, 491-492.  FN10 

PUTTING ASIDE THE COURT'S DIALECTICAL METHOD OF INTERPRETATION, AND
EXAMINING THE HISTORY AND PURPOSE OF THE FIFTH AMENDMENT, THERE APPEARS
TO BE NO JUSTIFICATION FOR REDUCING ITS SCOPE AS THE COURT IS NOW
DOING.  COMPULSION OF SELF-INCRIMINATORY TESTIMONY BY COURT OATHS AND
BY THE LESS REFINED METHODS OF TORTURE WERE EQUALLY DETESTED BY THE
FIFTH AMENDMENT'S LIBERTY-LOVING ADVOCATES AND THEIR FORBEARS.  FN11
THEIR ABHORRENCE OF THESE PRACTICES DID NOT SPRING ALONE FROM A
PREDILECTION FOR PERSONAL PRIVACY.  THEY HAD OTHER REASONS TO DESPISE
AND FEAR THEM.  THEY STILL REMEMBERED THE HATED PRACTICES OF THE COURT
OF STAR CHAMBER, THE COURT OF HIGH COMMISSION, AND OTHER INQUISITORIAL
AGENCIES WHICH HAD BROUGHT RELIGIOUS AND POLITICAL NON-CONFORMISTS
WITHIN THE PENALTIES OF THE LAW BY MEANS OF THEIR OWN TESTIMONY.  AND
HISTORY SUPPORTS NO ARGUMENT THAT THE FRAMERS OF THE FIFTH AMENDMENT
WERE INTERESTED ONLY IN FORBIDDING THE EXTRACTION OF AN ACCUSED'S
TESTIMONY, AS DISTINGUISHED FROM THE USE OF HIS EXTRACTED TESTIMONY. 
THE EXTRACTION OF TESTIMONY IS, OF COURSE, BUT A MEANS TO THE END OF
ITS USE TO PUNISH.  FEW PERSONS WOULD SERIOUSLY OBJECT TO TESTIFYING
UNLESS THEIR TESTIMONY WOULD SUBJECT THEM TO FUTURE PUNISHMENT.  THE
REAL EVIL AIMED AT BY THE FIFTH AMENDMENT'S FLAT PROHIBITION AGAINST
THE COMPULSION OF SELF-INCRIMINATORY TESTIMONY WAS THAT THOUGHT TO
INHERE IN USING A MAN'S COMPELLED TESTIMONY TO PUNISH HIM.  BY BROADLY
OUTLAWING THE PRACTICE OF COMPELLING SUCH TESTIMONY THE FIFTH AMENDMENT
STRUCK AT THIS EVIL AT ITS SOURCE, SEEKING TO ELIMINATE THE POSSIBILITY
THAT COMPELLED TESTIMONY WOULD EVER BE AVAILABLE FOR USE TO PUNISH A
DEFENDANT.  FN12 

PERHAPS, AS SOME HAVE ARGUED, THE MEN WHO FRAMED THIS AMENDMENT WERE
MISTAKEN OR THEIR FEARS HAVE LOST FOUNDATION AND THE UNQUALIFIED
PROHIBITION AGAINST THE EXTRACTION AND USE OF COMPELLED TESTIMONY WHICH
THEY PUT INTO THE FIFTH AMENDMENT SHOULD BE REPEALED OR MODIFIED.  FN13
THIS VIEW OF THE DESIRABILITY OF CONSTRICTING THE FIFTH AMENDMENT I AM
NOT READY TO ACCEPT, BUT WERE IT OTHERWISE I WOULD NOT CONSIDER SUCH A
VIEW SHOULD PLAY ANY PART IN THE PROCESS OF INTERPRETATION.  I AM
UNWILLING TO SEE ANY CONSTRICTION OF THE LIBERTIES AND THE PROCEDURAL
SAFEGUARDS OF THESE LIBERTIES SPECIFICALLY ENUMERATED IN THE BILL OF
RIGHTS UNLESS IT BE BY CONSTITUTIONAL AMENDMENT.  FN14 

THE PROHIBITION AGAINST COMPELLED TESTIMONY WHICH THE COURT TODAY HAS
SEEN FIT TO RESTRICT CANNOT BE DISSOCIATED FROM THE OTHER SPECIFIC
PROTECTIONS AFFORDED THE INDIVIDUAL BY THE BILL OF RIGHTS.  THE
FOUNDERS OF OUR FEDERAL GOVERNMENT WERE TOO CLOSE TO OPPRESSIONS AND
PERSECUTIONS OF THE UNORTHODOX, THE UNPOPULAR, AND THE LESS INFLUENTIAL
TO TRUST EVEN ELECTED REPRESENTATIVES WITH UNLIMITED POWERS OF CONTROL
OVER THE INDIVIDUAL.  FROM THEIR DISTRUST WERE DERIVED THE FIRST TEN
AMENDMENTS, DESIGNED AS A WHOLE TO "LIMIT AND QUALIFY THE POWERS OF
GOVERNMENT," TO DEFINE "CASES IN WHICH THE GOVERNMENT OUGHT NOT TO ACT,
OR TO ACT ONLY IN A PARTICULAR MODE," AND TO PROTECT UNPOPULAR
MINORITIES FROM OPPRESSIVE MAJORITIES.  1 ANNALS 437.  THE FIRST OF THE
TEN AMENDMENTS ERECTED A CONSTITUTIONAL SHELTER FOR THE PEOPLE'S
LIBERTIES OF RELIGION, SPEECH, PRESS, AND ASSEMBLY.  THIS AMENDMENT
REFLECTS THE FAITH THAT A GOOD SOCIETY IS NOT STATIC BUT ADVANCING, AND
THAT THE FULLEST POSSIBLE INTERCHANGE OF IDEAS AND BELIEFS IS ESSENTIAL
TO ATTAINMENT OF THIS GOAL.  THE PROPONENTS OF THE FIRST AMENDMENT,
COMMITTED TO THIS FAITH, WERE DETERMINED THAT EVERY AMERICAN SHOULD
POSSESS AN UNRESTRAINED FREEDOM TO EXPRESS HIS VIEWS, HOWEVER ODIOUS
THEY MIGHT BE TO VESTED INTERESTS WHOSE POWER THEY MIGHT CHALLENGE. 

BUT THESE MEN WERE NOT SATISFIED THAT THE FIRST AMENDMENT WOULD MAKE
THIS RIGHT SUFFICIENTLY SECURE.  AS THEY WELL KNEW, HISTORY TEACHES
THAT ATTEMPTED EXERCISES OF THE FREEDOMS OF RELIGION, SPEECH, PRESS,
AND ASSEMBLY HAVE BEEN THE COMMONEST OCCASIONS FOR OPPRESSION AND
PERSECUTION.  INEVITABLY SUCH PERSECUTIONS HAVE INVOLVED SECRET
ARRESTS, UNLAWFUL DETENTIONS, FORCED CONFESSIONS, SECRET TRIALS, AND
ARBITRARY PUNISHMENTS UNDER OPPRESSIVE LAWS.  THEREFORE IT IS NOT
SURPRISING THAT THE MEN BEHIND THE FIRST AMENDMENT ALSO INSISTED UPON
THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, DESIGNED TO PROTECT ALL
INDIVIDUALS AGAINST ARBITRARY PUNISHMENT BY DEFINITE PROCEDURAL
PROVISIONS GUARANTEEING FAIR PUBLIC TRIALS BY JURIES.  THEY SOUGHT BY
THESE PROVISIONS TO ASSURE THAT NO INDIVIDUAL COULD BE PUNISHED EXCEPT
ACCORDING TO "DUE PROCESS," BY WHICH THEY CERTAINLY INTENDED THAT NO
PERSON COULD BE PUNISHED EXCEPT FOR A VIOLATION OF DEFINITE AND VALIDLY
ENACTED LAWS OF THE LAND, AND AFTER A TRIAL CONDUCTED IN ACCORDANCE
WITH THE SPECIFIC PROCEDURAL SAFEGUARDS WRITTEN IN THE BILL OF RIGHTS. 
FN15  IF OCCASIONALLY THESE SAFEGUARDS WORKED TO THE ADVANTAGE OF AN
ORDINARY CRIMINAL, THAT WAS A PRICE THEY WERE WILLING TO PAY FOR THE
FREEDOM THEY CHERISHED.  AND ONE OF THE SPECIFIC PROCEDURAL SAFEGUARDS
WHICH THEY INSERTED TO SHIELD THE INDIVIDUAL WAS THE PROHIBITION
AGAINST COMPULSION OF SELF-INCRIMINATORY TESTIMONY. 

IT IS IMPOSSIBLE FOR ME TO RECONCILE TODAY'S RESTRICTIVE
INTERPRETATION OF THE PROHIBITION AGAINST COMPELLED SELF-INCRIMINATION
WITH THE PRINCIPLE OF BROAD CONSTRUCTION WHICH THIS COURT HERETOFORE
HAS DEEMED ESSENTIAL TO FULL PRESERVATION OF THE BASIC SAFEGUARDS OF
LIBERTY SPECIFICALLY ENUMERATED IN THE BILL OF RIGHTS.  THE PROTECTIONS
EXPLICITLY AFFORDED THE INDIVIDUAL BY THE BILL OF RIGHTS REPRESENT A
LARGE PART OF THE CHARACTERISTICS WHICH DISTINGUISH FREE FROM
TOTALITARIAN GOVERNMENT.  UNDER OUR CONSTITUTIONAL SYSTEM THE
PRIVILEGES IT EMBODIES AND THE RIGHTS IT SECURES WERE INTENDED TO BE
ABOVE AND BEYOND THE POWER OF ANY BRANCH OF GOVERNMENT TO MUTILATE OR
DESTROY.  WE HAVE NO ASSURANCE THAT THE FEARS OF THOSE WHO DRAFTED AND
ADOPTED OUR BILL OF RIGHTS WERE GROUNDLESS, NOR THAT THE REASONS FOR
THOSE FEARS NO LONGER EXIST.  ANCIENT EVILS HISTORICALLY ASSOCIATED
WITH THE POSSESSION OF UNQUALIFIED POWER TO IMPOSE CRIMINAL PUNISHMENT
ON INDIVIDUALS HAVE A DANGEROUS HABIT OF REAPPEARING WHEN TRIED
SAFEGUARDS ARE REMOVED. 

THIS CASE INVOLVES THE FIFTH, NOT THE FOURTH, AMENDMENT.  DECISIONS
WHICH HAVE READ THE FOURTH AND FIFTH AMENDMENTS TOGETHER FOR THE
PURPOSE OF BROADENING THE FOURTH AMENDMENT SHOULD NOT NOW BE EMPLOYED
TO NARROW THE FIFTH AMENDMENT.  TO DO SO IGNORES THE PARTICULAR
REASONING OF THESE DECISIONS AS WELL AS THE SEPARATE LANGUAGE AND
HISTORY OF THE TWO AMENDMENTS.  SEE BOYD V. UNITED STATES, SUPRA;
COUNSELMAN V. HITCHCOCK, SUPRA; BROWN V. WALKER, 161 U.S. 591; VIII
WIGMORE ON EVIDENCE, THIRD ED. PP. 276-304, 368.  NOTHING THIS COURT
HAS SAID WITH REGARD TO THE FOURTH AMENDMENT REQUIRES THAT WE NOW OPEN
THE DOOR WHICH THE FIFTH AMENDMENT IN 1791 CLOSED TO COMPELLED SELF
INCRIMINATION.    I WOULD REVERSE THE JUDGMENT. 

FN1  AND SEE JACK V. KANSAS, 199 U.S. 372, WHERE THIS COURT DISPOSED
OF AN ARGUMENT THAT A KANSAS STATUTE UNCONSTITUTIONALLY COMPELLED JACK
TO CONFESS HIS VIOLATIONS OF A FEDERAL CRIMINAL STATUTE WITH THE
ASSERTION THAT, "WE DO NOT BELIEVE  ...  SUCH EVIDENCE WOULD BE AVAILED
OF BY THE GOVERNMENT FOR SUCH PURPOSE."  ID., 381-382.  IN AN EARLIER
CASE, BROWN V. WALKER, 161 U.S. 591, THIS COURT THOUGHT THAT THE
LIKELIHOOD THAT STATE PROSECUTORS WOULD USE TESTIMONY COMPELLED BY THE
FEDERAL GOVERNMENT WAS "SO IMPROBABLE THAT NO REASONABLE MAN WOULD
SUFFER IT TO INFLUENCE HIS CONDUCT."  ID., 606-608.  BUT SEE ENSIGN V.
PENNSYLVANIA, 227 U.S. 592. 

FN2  MCCARTHY V. ARNDSTEIN, 266 U.S. 34; AND SEE BRAM V. UNITED
STATES, 168 U.S. 532; WAN V. UNITED STATES, 266 U.S. 1; CF. BOYD V.
UNITED STATES, 116 U.S. 616. 

FN3  MCCARTHY V. ARNDSTEIN, SUPRA, NOTE 2, PP. 40-41; COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 562.  SEE ALSO UNITED STATES EX REL.
BILOKUMSKY V. TOD, 263 U.S. 149; UNITED STATES EX REL. VAJTAUER V.
COMMISSIONER OF IMMIGRATION, 273 U.S. 103. 

FN4  COUNSELMAN V. HITCHCOCK, 142 U.S. 547. 

FN5  WAN V. UNITED STATES, SUPRA, NOTE 2; ANDERSON V. UNITED STATES,
318 U.S. 350, 356. 

FN6  BRAM V. UNITED STATES, SUPRA, NOTE 2. 

FN7  ANDERSON V. UNITED STATES, SUPRA, NOTE 5; AND SEE BRAM V. UNITED
STATES, SUPRA, NOTE 2. 

FN8  SEE HALE V. HENKEL, 201 U.S. 43, AND UNITED STATES V. MURDOCK,
284 U.S. 141, HOLDING IT ENOUGH THAT THE UNITED STATES GRANT IMMUNITY
FROM PROSECUTION FOR FEDERAL CRIMES; BUT SEE, CONTRA, UNITED STATES V.
SALINE BANK, 1 PET. 100; BALLMANN V. FAGIN, 200 U.S. 186.  HAD THE
COURT IN THE MURDOCK CASE, SUPRA, ACCEPTED THE CONTENTION THAT THE
FEDERAL GOVERNMENT MUST GRANT AN IMMUNITY FROM STATE AS WELL AS FEDERAL
PROSECUTION, IT WOULD INEVITABLY HAVE BEEN FACED WITH THE PROBLEM OF
THE FEDERAL POWER TO INTERFERE WITH ENFORCEMENT OF STATE LAWS THROUGH
THE DEVICE OF GRANTING IMMUNITY FROM STATE PROSECUTION TO WITNESSES IN
FEDERAL PROCEEDINGS - A PROBLEM REPLETE WITH BOTH PRACTICAL AND LEGAL
DIFFICULTIES.  SEE J.A.C. GRANT, IMMUNITY FROM COMPULSORY SELF
INCRIMINATION IN A FEDERAL SYSTEM OF GOVERNMENT, 9 TEMPLE L.Q. 57 AND
194, 207-211. 

COMPARE JACK V. KANSAS, SUPRA, NOTE 1, HOLDING THAT KANSAS COULD
COMPEL A WITNESS TO TESTIFY TO HIS PAST CRIMES UPON A GRANT OF IMMUNITY
FROM STATE PROSECUTION, THOUGH HE STILL BE SUBJECT TO FEDERAL
PROSECUTION.  IN REACHING THIS RESULT THE COURT TOOK SPECIFIC NOTICE OF
THE FACT THAT, WERE THE RULE OTHERWISE, STATE IMMUNITY STATUTES MUST
ALL BE STRICKEN DOWN.  "THE STATE STATUTE COULD NOT, OF COURSE, PREVENT
A PROSECUTION OF THE SAME PARTY UNDER THE UNITED STATES STATUTE."  199
U.S. 372, 380. 

FN9  SEE TWINING V. NEW JERSEY, 211 U.S. 78, AND ENSIGN V.
PENNSYLVANIA, SUPRA, NOTE 1, HOLDING RESPECTIVELY THAT DESPITE THE
FOURTEENTH AMENDMENT A STATE MAY COMPEL A DEFENDANT TO INCRIMINATE
HIMSELF, AND MAY USE AGAINST HIM SCHEDULES HE FILED IN AN INVOLUNTARY
FEDERAL BANKRUPTCY PROCEEDING.  BUT SEE ASHCRAFT V. TENNESSEE, 322 U.S.
143. 

FN10  FOR A CRITICAL ANALYSIS OF THE CONFLICT BETWEEN THE LEGAL
CONCEPT OF "DUAL SOVEREIGNTY" AND PRESERVATION OF THE CONSTITUTIONAL
PROHIBITION AGAINST SELF-INCRIMINATION, SEE J.A.C. GRANT, OP. CIT.,
SUPRA, NOTE 8. 

FN11  SEE PITTMAN, THE COLONIAL AND CONSTITUTIONAL HISTORY OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION IN AMERICA, 21 VA. L. REV. 763,
775-783. 

FN12  SEE UNITED STATES V. BURR, 25 FED. CAS. 38-41; COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 564-566; BROWN V. WALKER, 161 U.S. 591, 594,
600, 605-606; CF. EX PARTE LANGE, 18 WALL.  163, 173.  AND SEE PITTMAN,
OP. CIT., SUPRA, NOTE 11; AND CASES CITED NOTES 5, 6, AND 7, SUPRA. 

FN13  COMPARE KNOX, SELF-INCRIMINATION, 74 UNIV.  PA. L. REV. 139
WITH VIII WIGMORE ON EVIDENCE, THIRD ED., PP. 304-313; AND SEE
EDITORIAL, 16 JOURN.  CRIM.  LAW AND CRIM. 165-166. 

FN14  SEE DISSENTING OPINION OF CIRCUIT JUDGE FRANK IN UNITED STATES
V. ST. PIERRE, 132 F.2D 837, 840, PP. 847-848.  "STRANGELY ENOUGH,
THOSE WHO ARE MOST OPPOSED TO ANY CHANGES IN JUDICIAL CONSTRUCTIONS OF
THOSE DESIGNEDLY ELASTIC CLAUSES OF THE CONSTITUTION ARE OFTEN THE MOST
VIGOROUS IN THEIR DEMANDS THAT THE COURTS SHOULD EVISCERATE THE
SPECIFIC AND RELATIVELY INELASTIC SELF-INCRIMINATION CLAUSE."  ID.,
848. 

FN15  SEE CHAMBERS V. FLORIDA, 309 U.S. 227, 235-238; TOT V. UNITED
STATES, 319 U.S. 463, 473. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN IN THIS OPINION. 
..END :




I.C.C. V. JERSEY CITY, 322 U.S. 503 


NO. 767.  ARGUED MAY 2, 3, 1944.  - DECIDED MAY 29, 1944.  - 54 F.SUPP. 
315, REVERSED. 


AN ORDER OF THE INTERSTATE COMMERCE COMMISSION AUTHORIZED A FARE
INCREASE FROM 8 CENTS TO 9 CENTS.  UPON FINDING THAT COLLECTION OF THE
9-CENT FARE WAS IMPRACTICABLE, THE COMMISSION MODIFIED ITS ORDER SO AS
TO AUTHORIZE A FARE OF 11 TOKENS FOR $1.00 OR A CASH FARE OF 10 CENTS. 
THE COMMISSION LATER REOPENED THE PROCEEDING, BUT ONLY TO CONSIDER THE
PROPRIETY AND LAWFULNESS OF THE MODIFICATION OF ITS ORIGINAL ORDER. 
UPON FURTHER FINDINGS, THE COMMISSION AUTHORIZED A FARE OF 11 TOKENS
FOR $1.00 OR A CASH FARE OF 10 CENTS.  A PETITION OF THE PRICE
ADMINISTRATOR FOR MODIFICATION OF THE REOPENING ORDER "IN ORDER THAT
THE SAID RECORD BE BROUGHT UP TO DATE" WAS DENIED.  UPON REVIEW OF A
DECREE SETTING ASIDE THE COMMISSION'S ORDERS, HELD: 

1.  THE COMMISSION'S FINDINGS OF FACT WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE.  P. 512. 

2.  FINDINGS OF THE COMMISSION SO SUPPORTED ARE CONCLUSIVE.  P. 512. 

3.  THE COMMISSION'S DENIAL OF A REHEARING OF THE WHOLE CASE WAS NOT
AN ABUSE OF ITS DISCRETION AND DID NOT AMOUNT TO UNFAIRNESS SUCH AS
WOULD VITIATE ITS ORDERS.  PP. 514, 519. 

4.  IT WAS THE DUTY OF THE COMMISSION TO GIVE FULL EFFECT TO WARTIME
CONDITIONS AND THE STABILIZATION LEGISLATION.  P. 519. 

5.  UPON THE RECORD, IT CAN NOT BE CONCLUDED THAT THE COMMISSION
FAILED TO GIVE PROPER WEIGHT TO STABILIZATION CONSIDERATIONS OR THAT IT
IGNORED THE PRICE ADMINISTRATOR'S CONTENTIONS AS TO INFLATIONARY
TENDENCIES OF RATE INCREASES.  P. 520. 

6.  THE DETERMINATION OF THE WEIGHT TO BE GIVEN TO STABILIZATION
CONSIDERATIONS IN RELATION TO OTHER FACTORS WAS FOR THE COMMISSION, NOT
THE COURTS.  P. 522. 

7.  THE STABILIZATION ACT OF 1942 DID NOT GIVE THE PRICE
ADMINISTRATOR STANDING SUPERIOR TO THAT OF OTHER LITIGANTS TO ASK THE
COURTS TO OVERRIDE THE NORMAL DISCRETION OF THE COMMISSION IN GRANTING
OR REFUSING REHEARINGS.  FOLLOWING VINSON V. WASHINGTON GAS LIGHT CO.,
321 U.S. 489.  P. 523. 

INTERSTATE COMMERCE COMMISSION ET AL. V. CITY OF JERSEY CITY ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEW JERSEY. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES WHICH
ENJOINED ENFORCEMENT OF AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL BY THE INTERSTATE COMMERCE COMMISSION, WHOSE
ORDERS THE DISTRICT COURT OF NEW JERSEY HAS SET ASIDE, AND BY THE
HUDSON & MANHATTAN RAILROAD COMPANY, WHOSE RATES ARE SUBJECT TO THE
ENJOINED ORDERS.  RESPONDENTS ARE THE CITY OF JERSEY CITY AND THE PRICE
ADMINISTRATOR, WHO INTERVENED UNDER POWERS DULY DELEGATED TO HIM
PURSUANT TO THE EMERGENCY PRICE CONTROL ACT OF 1942  FN1  AND THE
INFLATION CONTROL OR STABILIZATION ACT OF 1942.  FN2 

THE HUDSON & MANHATTAN RAILROAD COMPANY OWNS ABOUT 8.5 MILES OF
ELECTRIC RAILWAY, OF WHICH ALL BUT 0.63 MILE IS UNDERGROUND.  IT HAS
TWO DOUBLE-TRACK LINES, ONE OF WHICH, KNOWN AS THE "UPTOWN LINE,"
CONNECTS HOBOKEN, NEW JERSEY, WITH CHRISTOPHER STREET, NEW YORK, BY TWO
PARALLEL TUNNELS UNDER THE HUDSON RIVER, AND RUNS UPTOWN UNDER SIXTH
AVENUE FROM CHRISTOPHER STREET TO A TERMINAL AT 33RD STREET.  THE OTHER
LINE, KNOWN AS THE "DOWNTOWN LINE," CROSSES UNDER THE RIVER BY TWO
PARALLEL TUNNELS BETWEEN EXCHANGE PLACE, JERSEY CITY, AND HUDSON
TERMINAL, NEW YORK.  IT ALSO EXTENDS WESTWARDLY IN JERSEY CITY TO
JOURNAL SQUARE, WHERE CONNECTION IS MADE WITH THE PENNSYLVANIA
RAILROAD.  THE UPTOWN AND DOWNTOWN LINES ARE CONNECTED ON THE NEW
JERSEY SIDE BY MEANS OF A LINE PARALLELING THE HUDSON RIVER.  IN
CONJUNCTION WITH THE PENNSYLVANIA RAILROAD THE HUDSON & MANHATTAN
OPERATES A JOINT RAPID-TRANSIT SERVICE BETWEEN HUDSON TERMINAL AND
NEWARK.  IT CARRIES ONLY PASSENGERS. 

THE PRESENT CONTROVERSY HAS ITS ROOTS IN A RATE CASE PRECIPITATED BY
THE COMPANY'S EFFORT TO ESTABLISH A 10-CENT FARE ON ITS DOWNTOWN LINE
IN 1937.  FN3  AFTER FULL HEARINGS THE INTERSTATE COMMERCE COMMISSION
FIXED AN 8-CENT FARE EFFECTIVE JULY 25, 1938.  FN4  THE 10-CENT FARE
WAS DENIED CHIEFLY ON THE GROUND THAT, WHILE THE COMPANY MIGHT BE
ENTITLED TO THE REVENUE, SUCH A FARE WOULD DECREASE ITS PATRONAGE, AND
THE COMMISSION BELIEVED THAT AN 8-CENT FARE WOULD PRODUCE MORE
REVENUE.  COMMISSIONERS MILLER AND MAHAFFIE DISSENTED FROM DENIAL OF
THE 10-CENT FARE ON SUCH GROUNDS, HOLDING IT HAD BEEN "AMPLY JUSTIFIED"
AS "REASONABLE AND LAWFUL FOR THE SERVICES PERFORMED."  THIS COURT HELD
SUCH GROUNDS OF DENIAL TO BE SUSTAINED BY EVIDENCE AND TO BE WITHIN THE
COMMISSION'S DISCRETION.  HUDSON & MANHATTAN R. CO. V. UNITED STATES,
313 U.S. 98.  THE 8-CENT FARE REMAINED IN EFFECT UNTIL THE CARRIER ON
JUNE 27, 1942 FILED A PETITION IN THE SAME PROCEEDING FOR FURTHER
HEARING, ALLEGING CHANGED CONDITIONS AND INCREASED COSTS IN SUPPORT OF
A 10-CENT FARE ON THE DOWNTOWN LINE.  PROTESTS WERE FILED BY THE CITY
OF JERSEY CITY AND THE HUDSON BUS CORPORATION.  THE COMMISSION OPENED
THE PROCEEDING AND EXTENSIVE HEARINGS WERE HELD IN SEPTEMBER OF 1942. 
COUNSEL FOR THE PRICE ADMINISTRATOR APPEARED, STATING THAT IT WAS NOT
HIS INTENTION TO OFFER EVIDENCE BUT THAT HE RESERVED THE RIGHT TO MAKE
ANY MOTIONS AND TO FILE APPROPRIATE BRIEFS.  THE HEARINGS WERE
CONCLUDED ON SEPTEMBER 19, 1942. 

THE INFLATION CONTROL ACT OF 1942, PASSED ON OCTOBER 2D, CONTAINED A
PROVISO THAT "NO COMMON CARRIER OR OTHER PUBLIC UTILITY SHALL MAKE ANY
GENERAL INCREASE IN ITS RATES OR CHARGES WHICH WERE IN EFFECT ON
SEPTEMBER 15, 1942, UNLESS IT FIRST GIVES THIRTY DAYS NOTICE TO THE
PRESIDENT, OR SUCH AGENCY AS HE MAY DESIGNATE, AND CONSENTS TO THE
TIMELY INTERVENTION BY SUCH AGENCY BEFORE THE FEDERAL, STATE OR
MUNICIPAL AUTHORITY HAVING JURISDICTION TO CONSIDER SUCH INCREASE." 
SEC. 1.  THEREAFTER THE PRICE ADMINISTRATOR  FN5  ASKED PERMISSION TO
AND DID FILE A BRIEF OPPOSING ANY INCREASE IN THE RATES.  ON JANUARY
25, 1943, THE HEARING EXAMINER RECOMMENDED THAT THE COMMISSION FIND THE
RATE OF 10 CENTS ON THE DOWNTOWN LINES TO BE JUST AND REASONABLE. 
EXCEPTIONS WERE FILED BY JERSEY CITY AND THE PRICE ADMINISTRATOR AND
ARGUED BY COUNSEL FOR EACH, AND ON JUNE 8, 1943 THE COMMISSION MADE ITS
DECISION.  FN6  IT REVIEWED THE INCREASES IN OPERATING COSTS SINCE THE
8-CENT RATE HAD BEEN FIXED AND THE NEED OF THE RAILROAD FOR ADDITIONAL
REVENUE "IN ORDER TO MEET INCREASED OPERATING EXPENSES AND THE INTEREST
ON ITS BONDS."  IT INCREASED THE DOWNTOWN FARE FROM 8 CENTS TO 9 CENTS,
EFFECTIVE FOR DURATION OF THE WAR AND SIX MONTHS THEREAFTER, WITH
PERMISSION TO ANY OF THE PARTIES TO BRING TO THE ATTENTION OF THE
COMMISSION ADDITIONAL FACTS IF THE REVENUE RESULTS SHOULD PROVE
MATERIALLY DIFFERENT FROM THE COMMISSION'S ESTIMATE.  THE COMMISSION'S
OPINION CONSIDERED THE ARGUMENTS OF THE PRICE ADMINISTRATOR AGAINST ANY
INCREASE, BUT SAID, "IT SEEMS TO US THAT AN INCREASE OF 1 CENT IN
RESPONDENT'S DOWNTOWN FARE IS UNLIKELY TO HAVE ANY INFLATIONARY EFFECT,
AND THAT THE EFFECT THEREOF UPON THE COST OF LIVING, WHILE A FACTOR TO
BE GIVEN CONSIDERATION, WILL BE SO SLIGHT, A MAXIMUM OF ABOUT 12 CENTS
A WEEK AND 52 CENTS A MONTH PER PASSENGER, AS TO BE NEGLIGIBLE.  WE
BELIEVE, THEREFORE, THAT THE INCREASED FARE HEREIN APPROVED WILL NOT BE
IN CONFLICT WITH THE EMERGENCY PRICE CONTROL ACT OF 1942, AS AMENDED." 
THREE COMMISSIONERS DISSENTED, HOLDING THAT THE COMPANY HAD ESTABLISHED
ITS RIGHT TO A 10-CENT FARE. 

A MONTH LATER THE RAILROAD FILED A PETITION FOR RECONSIDERATION. 
AMONG OTHER THINGS, IT ALLEGED THAT IT COULD NOT AVAIL ITSELF OF THE 9
CENT RATE BECAUSE ITS FARE COLLECTION BOXES COULD NOT HANDLE THE VOLUME
OF COINS NECESSITATED BY THE 9-CENT RATE AND UNDER WAR CONDITIONS COULD
NOT BE REPLACED.  IT ASKED TO CHARGE A 10-CENT FARE UNTIL IT COULD
SECURE TOKENS.  JERSEY CITY ANSWERED, ASKING THAT THE PETITION BE
DENIED AND THE 9-CENT FARE SUSPENDED.  THE PRICE ADMINISTRATOR ALSO
ANSWERED.  HE ADVOCATED WHAT HE CALLED A FEASIBLE SCHEME TO COLLECT THE
9-CENT FARE THROUGH THE USE OF PAPER TICKETS.  THE PRICE ADMINISTRATOR
ALSO ASKED THAT THE FARES GO BACK TO 8 CENTS IN VIEW OF ALLEGED
INCREASED EARNINGS AND ASKED THAT IN ANY EVENT BEFORE THE FARES WERE
INCREASED ON THE BASIS SUGGESTED BY THE COMPANY A FURTHER HEARING BE
HELD.  ON AUGUST 3, 1943 THE COMMISSION ISSUED A REPORT AND ORDER.  FN7
IT FOUND THAT IT WOULD BE IMPOSSIBLE TO COLLECT A 9-CENT CASH FARE,
AND IT AUTHORIZED AN ALTERNATIVE BASIS OF ELEVEN TOKENS FOR $1.00 OR A
CASH FARE OF 10 CENTS, PROVIDED THE SAME ALTERNATIVE BASIS BE PUT INTO
EFFECT ON THE UPTOWN LINE.  THIS RESULTED, OF COURSE, IN A RATE OF 9
1/11 CENTS TO TOKEN PURCHASERS ON BOTH LINES. 

THEREUPON JERSEY CITY FILED A COMPLAINT IN THE DISTRICT COURT, ASKING
THAT THE COMMISSION'S ORDER BE ENJOINED "IN SO FAR AS SUCH ORDER
PERMITS THE ESTABLISHMENT OF ANY LOCAL INTERSTATE FARE IN EXCESS OF
NINE CENTS FOR TRANSPORTATION ON THE DOWNTOWN LINE."  IT ALLEGED THAT
IN AUTHORIZING DOWNTOWN FARES "IN EXCESS OF THE NINE CENT FARE" FIXED
IN THE ORDER OF JUNE 8, THE COMMISSION HAD DEPRIVED JERSEY CITY OF ITS
FULL DAY IN COURT BY REFUSING IT OPPORTUNITY TO CROSS-EXAMINE WITNESSES
AND PRESENT COUNTER-EVIDENCE. 

THE COMMISSION THEN REOPENED THE PROCEEDING ON ITS OWN MOTION, BUT
ONLY "TO PERMIT ANY PARTY HERETO TO PRESENT EVIDENCE DIRECTED SOLELY TO
THE PROPRIETY AND LAWFULNESS OF THE MODIFICATIONS MADE BY THE
COMMISSION IN ITS REPORT OF AUGUST 3, 1943, ON FURTHER CONSIDERATION OF
ITS PRIOR FINDINGS AND ORDERS OF JULY 11, 1938 AND JUNE 8, 1943" AND TO
AFFORD THE RIGHT TO CROSS-EXAMINE ADVERSE WITNESSES.  THE COMMISSION IN
ITS LATER REPORT OF NOVEMBER 2, 1943 REFERRED TO THIS REOPENING AS
BEING "OUT OF AN ABUNDANCE OF CAUTION."  AT THE REOPENED PROCEEDING THE
COMPANY OFFERED TESTIMONY ABOUT THE IMPRACTICABILITY OF COLLECTING A 9
CENT FARE, AND AS TO THE EARNINGS THAT WOULD BE DERIVED FROM THE
PROPOSED TOKEN AND CASH COMBINATION FARES UPON THE ASSUMPTION,
SUPPORTED BY TESTIMONY, THAT 90 PER CENT OF THE PASSENGERS PROBABLY
WOULD PURCHASE TOKENS.  THE EXAMINER RULED THAT THE BASIS OF THE 9-CENT
FARE FIXED BY THE ORDER OF JUNE 8, 1943 WAS NOT IN ISSUE AND CONFINED
EVIDENCE TO THE ISSUES SPECIFIED IN THE COMMISSION'S ORDER.  THE PRICE
ADMINISTRATOR OFFERED A CONDENSED INCOME STATEMENT FOR THE HUDSON &
MANHATTAN FOR THE FIRST SEVEN MONTHS OF 1943.  THE EXAMINER DECLINED TO
RECEIVE IT, BECAUSE IT WENT ONLY TO THE COMPANY'S NEED FOR REVENUE, AN
INQUIRY WHICH WAS NOT REOPENED.  THE PRICE ADMINISTRATOR PREVIOUSLY HAD
SUBMITTED TO THE COMMISSION A SIMILAR STATEMENT FOR FIVE MONTHS OF
1943, AS PART OF ITS REPLY TO THE RAILROAD'S PETITION FOR MODIFICATION
OF THE 9-CENT FARE.  THE COMMISSION IN ITS REPORT OF AUGUST 3D REJECTED
THIS STATEMENT AS BEING WITHOUT PROBATIVE VALUE.  NEITHER OF THE
STATEMENTS SHOWED THE INCOME OF APPELLANT FROM ITS RAILROAD OPERATIONS,
BUT INCLUDED INCOME OF THE CORPORATION FROM ALL OPERATIONS, INCLUDING
THE HUDSON TERMINAL BUILDINGS IN NEW YORK CITY AND OTHER REAL ESTATE
OWNED BY IT.  THE PRICE ADMINISTRATOR ALSO PETITIONED THE COMMISSION
FOR MODIFICATON OF THE REOPENING ORDER "IN ORDER THAT THE SAID RECORD
BE BROUGHT UP TO DATE."  THE PURPOSE OF THIS WAS STATED TO BE TO SHOW
THAT AS A RESULT OF THE WAR THE EARNINGS OF THE COMPANY AT AN 8-CENT
FARE FOR THE FULL YEAR 1943 WOULD EXCEED THE AMOUNT THE COMMISSION
FOUND ADEQUATE AND REASONABLE IN ITS 1938 ORDER OR IN THE ORDER OF JUNE
8, 1943. 

ON NOVEMBER 2, 1943 THE COMMISSION ISSUED ITS REPORT AND ORDER,
ALLOWING A 10-CENT CASH FARE OR ELEVEN TOKENS FOR $1.00 AS THE RATE ON
BOTH THE DOWNTOWN AND UPTOWN LINES.  THE COMMISSION CONSIDERED IN ITS
OPINION THE REQUEST OF JERSEY CITY AND THE PRICE ADMINISTRATOR THAT THE
LIMITATIONS ON THE HEARINGS SHOULD BE REMOVED AND THE WHOLE RATE CASE
THROWN OPEN AGAIN.  IT POINTED OUT THAT THE COMPLAINT OF JERSEY CITY
PENDING IN THE DISTRICT COURT DID NOT QUESTION THE PROPRIETY OF THE
COMMISSION'S AUTHORIZATION OF AN INCREASE IN THE DOWNTOWN FARE FROM 8
CENTS TO 9 CENTS BUT CHALLENGED ONLY THE INCREASE FROM 9 CENTS TO 9
1/11 CENTS WITH TOKENS AND 10 CENTS IN CASH.  IT CONSIDERED THE OFFER
OF PROOF MADE IN THE HEARINGS AND SAID:  "CONSIDERING THE CONTENTS OF
THE MOTION NOW BEFORE US, AND THE OFFERS OF ADDITIONAL EVIDENCE MADE AT
THE RECENT FURTHER HEARING, WE HAVE NO REASON TO BELIEVE THAT, IF THE
ADDITIONAL HEARING SOUGHT WERE HELD, WE WOULD FEEL WARRANTED IN
MODIFYING OUR FINDINGS AS MADE IN THE SECOND REPORT.  AS WILL LATER
APPEAR, THE ALTERNATIVE-FARE BASIS HEREIN APPROVED CAN NOT BE EXPECTED
TO YIELD MATERIALLY BETTER REVENUE RESULTS TO RESPONDENT THAN WE
ANTICIPATED AT THE TIME OF THE SECOND REPORT.  ACCORDINGLY, WE SEE NO
SUFFICIENT REASON FOR FURTHER REOPENING THIS PROCEEDING AT THIS TIME,
AND THE MOTION WILL THEREFORE BE OVERRULED."  ON THE MERITS THE
COMMISSION SAID: 

"UPON THE AMPLIFIED RECORD NOW BEFORE US, WE FIND THAT THE FOLLOWING
BASIC FACTS, AS UNDERSCORED, HAVE BEEN ESTABLISHED: 

1.  IT IS IMPRACTICABLE FOR RESPONDENT TO COLLECT A CASH FARE OF 9
CENTS. 

     .         .         .     .         . 

2.  THERE IS AVAILABLE TO RESPONDENT NO PRACTICABLE METHOD OF
COLLECTING A FARE OF, OR APPROXIMATING, 9 CENTS EXCEPT BY THE USE OF
TOKENS. 

     .         .  .         .         . 

3.  THE USE OF TOKENS ONLY FOR THE LOCAL DOWNTOWN TRAFFIC, WHILE
CONTEMPORANEOUSLY USING CASH FARES FOR THE OTHER LOCAL TRAFFIC OF
RESPONDENT, IS IMPRACTICABLE. 

     .         .         .         .         . 

4.  THE USE OF AN ALTERNATIVE-FARE BASIS OF 11 TOKENS FOR $1 OR A
CASH FARE OF A DIME FOR LOCAL INTERSTATE PASSENGERS ON BOTH THE
DOWNTOWN AND UPTOWN LINES IS THE ONLY PRACTICABLE METHOD NOW AVAILABLE
BY WHICH RESPONDENT CAN REASONABLY BE EXPECTED TO OBTAIN THE FINANCIAL
BENEFITS CONTEMPLATED BY OUR FINDINGS AND CONCLUSIONS IN THE SECOND
REPORT AS NECESSARY TO INSURE ADEQUATE TRANSPORTATION SERVICE. 

     .         .         .         .       . 

5.  THE MODIFICATION OF OUR PRIOR FINDINGS AS MADE IN THE THIRD
REPORT OF AUGUST 3, 1943, IS NOT IN CONFLICT WITH THE EMERGENCY PRICE
CONTROL ACT OF 1942, AS AMENDED BY THE STABILIZATION ACT. 

     .         .         .         .    . 

6.  A CASH FARE OF 10 CENTS FOR THE OCCASIONAL OR IRREGULAR PASSENGER
ON THE DOWNTOWN LINE COMPARES FAVORABLY WITH THE REASONABLE CHARGE MADE
FOR SIMILAR SERVICE ON RAILROADS GENERALLY." 

ON THE BASIS OF THESE FINDINGS THE COMMISSION AUTHORIZED A FARE OF
ELEVEN TOKENS FOR $1.00 OR A CASH FARE OF 10 CENTS, PAYABLE BY A DIME,
AS REASONABLE AND OTHERWISE LAWFUL FOR APPLICATION DURING THE WAR AND
FOR SIX MONTHS AFTER ITS TERMINATION. 

JERSEY CITY THEREUPON AMENDED ITS COMPLAINT PENDING IN THE DISTRICT
COURT.  IT ASKED THAT THE COMMISSION'S ORDER OF JUNE 8, 1943, WHICH
ESTABLISHED THE 9-CENT RATE, AS WELL AS THAT OF NOVEMBER 2, 1943, WHICH
MODIFIED IT AS STATED, BE ENJOINED, IN SO FAR AS SUCH ORDER PERMITTED
ANY FARE ON APPELLANT'S DOWNTOWN LINE IN EXCESS OF 8 CENTS.  THE PRICE
ADMINISTRATOR INTERVENED, ALLEGING THAT AN INCREASE OVER THE 8-CENT
FARE IN EFFECT ON SEPTEMBER 15, 1942 WAS IN VIOLATION OF THE
STABILIZATION ACT.  THE UNITED STATES WAS NAMED AS A DEFENDANT BUT
FILED A NEUTRAL ANSWER BECAUSE TWO GOVERNMENT AGENCIES WERE IN
OPPOSITION TO EACH OTHER.  THE COMMISSION AND THE RAILROAD ANSWERED.  A
STATUTORY COURT OF THREE JUDGES WAS CONSTITUTED AND AN INTERLOCUTORY
INJUNCTION WAS GRANTED NOVEMBER 26, 1943.    ON JANUARY 12, 1944 A
MAJORITY OF THE COURT BELOW, ONE JUDGE DISSENTING, HELD BOTH OF THE
COMMISSION'S ORDERS INVALID UPON TWO GROUNDS.  IT WAS OF THE VIEW THAT
THE COMMISSION HAD DENIED A FULL HEARING IN REFUSING TO REOPEN THE
WHOLE PROCEEDING TO RECEIVE EVIDENCE RELATING TO THE 1943 EARNINGS OF
THE CARRIER, AND IT HELD THAT THE COMMISSION HAD BRUSHED ASIDE TOO
LIGHTLY THE ECONOMIC STABILIZATION ARGUMENTS OF THE PRICE
ADMINISTRATOR.  THE EFFECT OF THE DISTRICT COURT'S ORDER IS TO DISALLOW
NOT ONLY THE TOKEN AND CASH COMBINATION FARE, BUT ALSO THE 9-CENT FARE
WHICH THE COMMISSION FOUND JUST, REASONABLE AND LAWFUL, AND TO CONTINUE
THE 8-CENT RATE FIXED IN 1938 AND HELD BY THE COMMISSION TO HAVE BECOME
CLEARLY INADEQUATE TO THE RIGHTS AND NEEDS OF THE COMPANY. 

EACH OF THE FINDINGS OF FACT BY THE COMMISSION APPEARS TO BE
SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE COURT BELOW HAS NOT FOUND TO
THE CONTRARY, NOR DO WE.  REASONABLE PERSONS COULD NO DOUBT DIFFER AS
TO WHETHER IT IS PROBABLE THAT 90 PER CENT OF THE PATRONS WILL PURCHASE
TOKENS, WHETHER THE REVENUES OF THE LINES WILL INCREASE MORE THAN THE
OPERATING COSTS, AND AS TO VARIOUS OTHER FEATURES OF THE CONTEST.  BUT
WHEN THIS SAME RAILROAD CAME TO US COMPLAINING OF SUCH PREDICATIVE
FINDINGS WE REFUSED TO REVIEW THE WEIGHT OF EVIDENCE AND HELD THAT
BEING SUPPORTED BY EVIDENCE THE JUDGMENT OF THE COMMISSION WAS FINAL. 
HUDSON & MANHATTAN R. CO. V. UNITED STATES, 313 U.S. 98.  OF COURSE WE
CANNOT HOLD THAT THE JUDGMENT OF THE COMMISSION IS LESS FINAL MERELY
BECAUSE IT HAS BEEN EXERCISED ON THIS OCCASION FOR RELIEF OF THE
COMPANY. 

"MOREOVER, THE COMMISSION'S ORDER DOES NOT BECOME SUSPECT BY REASON
OF THE FACT THAT IT IS CHALLENGED.  IT IS THE PRODUCT OF EXPERT
JUDGMENT WHICH CARRIES A PRESUMPTION OF VALIDITY.  AND HE WHO WOULD
UPSET THE RATE ORDER UNDER THE ACT CARRIES THE HEAVY BURDEN OF MAKING A
CONVINCING SHOWING THAT IT IS INVALID BECAUSE IT IS UNJUST AND
UNREASONABLE IN ITS CONSEQUENCES."  FEDERAL POWER COMMISSION V. HOPE
NATURAL GAS CO., 320 U.S. 591, 602.  THE COMMISSION CONSIDERED THAT IT
HAD, AND WE FIND NO REASON TO DOUBT THAT IT HAD, THE EVIDENCE BEFORE IT
THAT WAS NEEDFUL TO THE DISCHARGE OF ITS DUTY TO THE PUBLIC AND TO THE
REGULATED RAILROAD.  "WITH THAT SORT OF EVIDENCE BEFORE THEM, RATE
EXPERTS OF ACKNOWLEDGED ABILITY AND FAIRNESS, AND EACH ACTING
INDEPENDENTLY OF THE OTHER, MAY NOT HAVE REACHED IDENTICALLY THE SAME
CONCLUSION.  WE DO NOT KNOW WHETHER THE RESULTS WOULD HAVE BEEN
APPROXIMATELY THE SAME.  FOR THERE IS NO POSSIBILITY OF SOLVING THE
QUESTION AS THOUGH IT WERE A MATHEMATICAL PROBLEM TO WHICH THERE COULD
ONLY BE ONE CORRECT ANSWER.  STILL THERE WAS IN THIS MASS OF FACTS THAT
OUT OF WHICH EXPERTS COULD HAVE NAMED A RATE.  THE LAW MAKES THE
COMMISSION'S FINDING ON SUCH FACTS CONCLUSIVE."  INTERSTATE COMMERCE
COMMISSION V. UNION PACIFIC R. CO., 222 U.S. 541, 550. 

"SO LONG AS THERE IS WARRANT IN THE RECORD FOR THE JUDGMENT OF THE
EXPERT BODY IT MUST STAND.  ...  "THE JUDICIAL FUNCTION IS EXHAUSTED
WHEN THERE IS FOUND TO BE A RATIONAL BASIS FOR THE CONCLUSIONS APPROVED
BY THE ADMINISTRATIVE BODY.'"  ROCHESTER TELEPHONE CORP. V. UNITED
STATES, 307 U.S. 125, 145-46; MISSISSIPPI VALLEY BARGE LINE CO. V.
UNITED STATES, 292 U.S. 282, 286-87. 

UNLESS, THEREFORE, THE COURT BELOW IS CORRECT IN HOLDING THAT A FAIR
HEARING HAS BEEN DENIED OR IN HOLDING THAT THE COMMISSION
MISAPPREHENDED THE EFFECT OF THE EMERGENCY LEGISLATION, THE ORDER OF
THE COMMISSION IS ENTITLED TO STAND.  WE TURN TO THOSE QUESTIONS. 

                                  I. 

THE DISTRICT COURT HAS SET ASIDE FOR WANT OF FAIR HEARING TWO ORDERS
OF THE COMMISSION, ONE OF WHICH PERMITTED AN INCREASE FROM 8 CENTS TO 9
CENTS IN THE RATE AND THE LATTER OF WHICH MODIFIED THE 9-CENT RATE SO
FAR AS TO PERMIT A 9 1/11-CENT TOKEN RATE AND A 10-CENT CASH RATE. 

NO CLAIM IS MADE THAT FULL HEARING WAS DENIED AS TO THE FIRST ORDER. 
THE ORIGINAL COMPLAINT IN THIS ACTION, AS WE HAVE POINTED OUT, DID NOT
QUESTION THE 9-CENT RATE ORDER, BUT ONLY THE SUBSEQUENT STEPS TO MODIFY
IT.  THE CONTENTION AS TO THE FIRST ORDER IS THAT THE COMMISSION IN THE
CIRCUMSTANCES WAS COMPELLED TO GIVE A FULL REHEARING BEFORE ITS ORDER
COULD BECOME FINAL.  AND IT IS URGED THAT THE ORDER AFTER THE LIMITED
REHEARING IS INVALID BECAUSE THERE WAS A LEGAL RIGHT TO A WIDER RANGE
OF INQUIRY BEFORE MODIFICATION OF THE FIRST ORDER. 

THIS RAISES AN IMPORTANT BUT NOT A NEW QUESTION OF ADMINISTRATIVE
LAW.  THE PRICE ADMINISTRATOR'S CONTENTION IS THAT THIS RECORD IS
"STALE" AND THAT A FRESH RECORD IS IMPORTANT.  ONE OF THE GROUNDS OF
RESISTANCE TO ADMINISTRATIVE ORDERS THROUGHOUT FEDERAL EXPERIENCE WITH
THE ADMINISTRATIVE PROCESS HAS BEEN THE CLAIMS OF PRIVATE LITIGANTS TO
BE ENTITLED TO REHEARINGS TO BRING THE RECORD UP TO DATE AND MEANWHILE
TO STALL THE ENFORCEMENT OF THE ADMINISTRATIVE ORDER.  ADMINISTRATIVE
CONSIDERATION OF EVIDENCE - PARTICULARLY WHERE THE EVIDENCE IS TAKEN BY
AN EXAMINER, HIS REPORT SUBMITTED TO THE PARTIES, AND A HEARING HELD ON
THEIR EXCEPTIONS TO IT - ALWAYS CREATES A GAP BETWEEN THE TIME THE
RECORD IS CLOSED AND THE TIME THE ADMINISTRATIVE DECISION IS
PROMULGATED.  THIS IS ESPECIALLY TRUE IF THE ISSUES ARE DIFFICULT, THE
EVIDENCE INTRICATE, AND THE CONSIDERATION OF THE CASE DELIBERATE AND
CAREFUL.  IF UPON THE COMING DOWN OF THE ORDER LITIGANTS MIGHT DEMAND
REHEARINGS AS A MATTER OF LAW BECAUSE SOME NEW CIRCUMSTANCE HAS ARISEN,
SOME NEW TREND HAS BEEN OBSERVED, OR SOME NEW FACT DISCOVERED, THERE
WOULD BE LITTLE HOPE THAT THE ADMINISTRATIVE PROCESS COULD EVER BE
CONSUMMATED IN AN ORDER THAT WOULD NOT BE SUBJECT TO REOPENING.  IT HAS
BEEN ALMOST A RULE OF NECESSITY THAT REHEARINGS WERE NOT MATTERS OF
RIGHT, BUT WERE PLEAS TO DISCRETION.  AND LIKEWISE IT HAS BEEN
CONSIDERED THAT THE DISCRETION TO BE INVOKED WAS THAT OF THE BODY
MAKING THE ORDER, AND NOT THAT OF A REVIEWING BODY. 

ONLY ONCE IN THE HISTORY OF ADMINISTRATIVE LAW HAS THIS COURT
REVERSED A COMMISSION FOR REFUSING TO GRANT A REHEARING ON THE
CONTENTION THAT THE RECORD WAS "STALE."  IN ATCHISON, T. & S.F. RY. CO.
V. UNITED STATES, 284 U.S. 248, THIS COURT HELD THAT BECAUSE OF CHANGED
CONDITIONS THE INTERSTATE COMMERCE COMMISSION ABUSED ITS DISCRETION IN
DENYING A REHEARING.  THE RECORD IN THAT CASE WAS CLOSED IN SEPTEMBER
1928.  IN FEBRUARY 1931, THE RAILROADS PETITIONED FOR REHEARING AND
"POINTED OUT THE GRAVE REDUCTIONS, IN TRAFFIC AND EARNINGS, FROM WHICH
THEY WERE SUFFERING, THAT THEIR NET OPERATING INCOME FOR 1930 WAS OVER
$100,000,000 LESS THAN THEIR AVERAGE ANNUAL NET OPERATING INCOME FOR
THE FIVE YEARS PRECEDING, AND THAT THEIR CREDIT WAS SERIOUSLY
IMPAIRED.  AT THE TIME OF THIS PETITION, THE ORDER  ...  HAD NOT YET
BECOME EFFECTIVE, BUT THE COMMISSION STOOD UPON THE RECORD OF 1928 AND,
WITHOUT REOPENING THE PROCEEDINGS OR TAKING FURTHER EVIDENCE, PROVIDED
THAT ITS ORDER SHOULD BECOME EFFECTIVE ON JUNE 1, 1931."  THIS, IT WAS
HELD, "WAS NOT WITHIN THE PERMITTED RANGE OF THE COMMISSION'S
DISCRETION, BUT WAS A DENIAL OF RIGHT."  284 U.S. 248, 261-62. 

THE COURT, HOWEVER, PROMPTLY RESTRICTED THAT DECISION TO ITS SPECIAL
FACTS, UNITED STATES V. NORTHERN PACIFIC RY. CO., 288 U.S. 490, AND IT
STANDS VIRTUALLY ALONE.  IN BALTIMORE & OHIO R. CO. V. UNITED STATES,
298 U.S. 349, 389, MR. JUSTICE BRANDEIS, CONCURRING, SAID, "THE
ATCHISON CASE RESTS UPON ITS EXCEPTIONAL FACTS.  IT IS APPARENTLY THE
ONLY INSTANCE IN WHICH THIS COURT HAS INTERFERED WITH THE EXERCISE OF
THE COMMISSION'S DISCRETION IN GRANTING, OR REFUSING, TO REOPEN A
HEARING."  ST. JOSEPH STOCK YARDS V. UNITED STATES, 298 U.S. 38, AROSE
UNDER THE PACKERS AND STOCKYARDS ACT.  THE SECRETARY OF AGRICULTURE WAS
UPHELD IN REFUSING TO REOPEN THE PROCEEDING TO TAKE ACCOUNT OF CHANGED
CONDITIONS RESULTING FROM THE ECONOMIC LEGISLATION OF CONGRESS IN
1933.  AGAIN, UNDER THE SAME ACT, THE SECRETARY OF AGRICULTURE DENIED A
REQUEST TO ADD THREE MONTHS' DEVELOPMENTS TO THE RECORD, WE REFUSED TO
INTERFERE, AND THE COURT SAID, THROUGH MR. JUSTICE ROBERTS, "THE
AMENDED PETITION WAS FILED ABOUT THREE MONTHS AFTER THE ORIGINAL ORDER
ISSUED.  IT IS INCONCEIVABLE THAT ECONOMIC CONDITIONS HAD SO ALTERED IN
THIS BRIEF PERIOD AS TO DEMONSTRATE THAT THE NEW SCHEDULE OF RATES, IF
JUST WHEN PROMULGATED, HAD BECOME UNJUST AND OPPRESSIVE.  THE SCHEDULE
SHOULD HAVE BEEN GIVEN A TRIAL AND ANY ALTERATION OR MODIFICATION
SHOULD HAVE BEEN ASKED IN THE LIGHT OF MORE EXTENSIVE EXPERIENCE.  WE
ARE UNABLE TO FIND ANYTHING ARBITRARY OR UNREASONABLE IN THE DENIAL OF
THE PETITIONS."  ACKER V. UNITED STATES, 298 U.S. 426, 433. 

THIS COURT HAS HELD THAT THE INTERSTATE COMMERCE COMMISSION DID NOT
ABUSE ITS DISCRETION IN REFUSING A REQUEST FOR A NEW STUDY AS A BASIS
FOR RATE-MAKING, ALTHOUGH CHANGES WERE ALLEGED CONSISTING OF A FALLING
OFF IN VOLUME OF TRAFFIC, IMPROVEMENT OF HIGHWAYS IN THE DISTRICT
RESULTING IN DIVERSION OF TRAFFIC FROM RAIL TO TRUCK, DECLINE IN VALUE
OF THE ARTICLES TRANSPORTED, REDUCTION IN WAGES AND COST OF SUPPLIES,
AND CURTAILMENT OF THE AMOUNT OF SERVICE RENDERED, AND WHERE THE
COMMISSION DECIDED THAT IT WAS ABLE ON THE RECORD BEFORE IT TO CONSIDER
THE EFFECT OF THE FACTORS SUGGESTED BY THE APPELLANTS AND THAT A NEW
COST STUDY WAS UNNECESSARY.  ILLINOIS COMMERCE COMMISSION V. UNITED
STATES, 292 U.S. 474, 480.  EXCEPT THAT THE TRENDS ARE IN AN OPPOSITE
DIRECTION, THE INQUIRY DEMANDED HERE IS OF THE SAME NATURE.  SEE ALSO
GEORGIA PUBLIC SERVICE COMMISSION V. UNITED STATES, 283 U.S. 765, 769
70. 

THE COURT HAS HELD THAT ADMINISTRATIVE TRIBUNALS "HAVE POWER
THEMSELVES TO INITIATE INQUIRY, OR, WHEN THEIR AUTHORITY IS INVOKED, TO
CONTROL THE RANGE OF INVESTIGATION IN ASCERTAINING WHAT IS TO SATISFY
THE REQUIREMENTS OF THE PUBLIC INTEREST IN RELATION TO THE NEEDS OF
VAST REGIONS AND SOMETIMES THE WHOLE NATION IN THE ENJOYMENT OF
FACILITIES FOR TRANSPORTATION, COMMUNICATION AND OTHER ESSENTIAL PUBLIC
SERVICES."  FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE
BROADCASTING CO., 309 U.S. 134, 142.  CF. AMERICAN BRIDGE CO. V.
RAILROAD COMMISSION, 307 U.S. 486, 494. 

NOR CAN A LITIGANT INSIST THAT A COMMISSION MAY NOT TAKE A SECOND
STEP IN A RATE-MAKING PROCESS WITHOUT RETRACING ALL PREVIOUS ONES.  AS
PUT BY THE CHIEF JUSTICE, "THE ESTABLISHMENT OF A RATE FOR A REGULATED
INDUSTRY OFTEN INVOLVES TWO STEPS OF DIFFERENT CHARACTER, ONE OF WHICH
MAY APPROPRIATELY PRECEDE THE OTHER.  THE FIRST IS THE ADJUSTMENT OF
THE GENERAL REVENUE LEVEL TO THE DEMANDS OF A FAIR RETURN.  THE SECOND
IS THE ADJUSTMENT OF A RATE SCHEDULE CONFORMING TO THAT LEVEL SO AS TO
ELIMINATE DISCRIMINATIONS AND UNFAIRNESS FROM ITS DETAILS."  SUCH
PROCEDURE MAY BE ADOPTED WHERE IT IS APPROPRIATE TO CARRY OUT THE
PROVISIONS OF AN ACT.  FEDERAL POWER COMMISSION V. NATURAL GAS PIPELINE
CO., 315 U.S. 575, 584. 

WE HAVE HELD THAT "THE REFUSAL TO RECONSIDER THE ISSUE OF DOMINATION
IN THE PRESENT UNFAIR LABOR PRACTICE HEARING ACCORDS, IN OUR VIEW, WITH
THE BOARD'S DISCRETIONARY POWERS."  PITTSBURGH GLASS CO. V. LABOR
BOARD, 313 U.S. 146, 161. 

WE HAVE REJECTED THE PLEA OF RAILROAD STOCKHOLDERS THAT EVENTS
SUBSEQUENT TO APPROVAL OF A REORGANIZATION PLAN OF A VERY SIMILAR
CHARACTER TO THOSE ALLEGED HERE, REQUIRE ITS RETURN FOR
RECONSIDERATION.  GROUP OF INSTITUTIONAL INVESTORS V. CHICAGO, M., ST.
P. & P.R. CO., 318 U.S. 523, 542-44; ECKER V. WESTERN PACIFIC R. CO.,
318 U.S. 448, 506-09. 

THE RULE THAT PETITIONS FOR REHEARINGS BEFORE ADMINISTRATIVE BODIES
ARE ADDRESSED TO THEIR OWN DISCRETION IS UNIFORMLY ACCEPTED AND SEEMS
TO BE ALMOST UNIVERSALLY APPLIED IN OTHER FEDERAL COURTS.  UNITED
STATES EX REL. MAINE POTATO GROWERS ASSN. V. INTERSTATE COMMERCE
COMMISSION, 88 F.2D 780, 784, CERT. DENIED, 300 U.S. 684; MISSISSIPPI
VALLEY BARGE LINE CO. V. UNITED STATES, 4 F.SUPP.  745, 748; UNION
STOCK YARDS CO. V. UNITED STATES, 9 F.SUPP.  864, 873; AMERICAN
COMMISSION CO. V. UNITED STATES, 11 F.SUPP.  965, 972; R.C.A.
COMMUNICATIONS V. UNITED STATES, 43 F.SUPP.  851, 858. 

CENTRAL & SOUTH WEST UTILITIES CO. V. SECURITIES & EXCHANGE
COMMISSION, 136 F.2D 273, 275, INVOLVED AN ORDER OF SIMPLIFICATION
UNDER THE HOLDING COMPANY ACT, IN WHICH THE PETITIONER MOVED FOR LEAVE
TO ADDUCE ADDITIONAL EVIDENCE.  DENYING THE MOTION, THE COURT SAID,
"PETITIONERS SHOW THAT THEIR FINANCIAL POSITION HAS IMPROVED SOMEWHAT
SINCE THE COMMISSION HELD ITS HEARINGS.  SECTION 11(B) AUTHORIZES THE
COMMISSION TO REVOKE OR MODIFY ITS ORDER, AFTER NOTICE AND HEARING, IN
RESPONSE TO CHANGED CONDITIONS, AND THERE IS NO REASON TO ASSUME THAT
IT WILL NOT DO SO IF SUFFICIENT OCCASION ARISES.  NEVERTHELESS
PETITIONERS NOW ASK LEAVE, UNDER SECTION 24(A) OF THE ACT, TO ADDUCE
THEIR IMPROVED POSITION AS 'ADDITIONAL EVIDENCE' IN THE COMPLETED
HEARINGS WHICH LED TO THE PRESENT ORDER.  WE NEED NOT DECIDE WHETHER
SUPERVENING EVENTS OF THIS GENERAL SORT MAY SOMETIMES BE 'ADDITIONAL
EVIDENCE' WITHIN THE MEANING OF SECTION 24(A).  IF SO, FINAL
ADMINISTRATIVE DISPOSITION AND JUDICIAL REVIEW MAY OFTEN BE PREVENTED
ALTOGETHER BY THE MERE FACT THAT THEY TAKE TIME."  SEE ALSO KOPPERS
UNITED CO. V. SECURITIES & EXCHANGE COMMISSION, 138 F.2D 577; COLORADO
RADIO CORP. V. FEDERAL COMMUNICATIONS COMMISSION, 118 F.2D 24; RED
RIVER BROADCASTING CO. V. FEDERAL COMMUNICATIONS COMMISSION, 98 F.2D
282, CERT. DENIED, 305 U.S. 625. 

VARIOUS OBJECTIONS TO THE PRICE ADMINISTRATOR'S CONTENTION ARE MADE,
SUCH AS THAT THE EVIDENCE HE PROPOSED TO OFFER WAS REMOTE, OR OF NO
PROBATIVE VALUE, THAT THE APPLICATION TO REOPEN DID NOT CONFORM TO THE
COMMISSION'S RULES, THAT HE BECAME, ALONG WITH JERSEY CITY, ESTOPPED
FROM QUESTIONING THE 9-CENT FARE BY THE ORIGINAL COMPLAINT IN DISTRICT
COURT, WHICH RAISED NO ISSUE ABOUT IT, AND THAT THE PARTIES DID NOT
PROCEED WITH DUE DILIGENCE.  WE DO NOT FIND IT NECESSARY TO EXAMINE ANY
OF THESE CONTENTIONS.    IT IS PERFECTLY PLAIN THAT UNLESS THE
STATUTORY AUTHORITY OF THE PRICE ADMINISTRATOR GIVES HIM A DIFFERENT
STANDING BEFORE ADMINISTRATIVE TRIBUNALS THAN CAN BE CLAIMED BY PRIVATE
LITIGANTS THERE IS NO GROUND FOR HOLDING THAT THE DENIAL OF A REHEARING
CONSTITUTED AN ABUSE OF DISCRETION OR AMOUNTED TO UNFAIRNESS WHICH
WOULD INVALIDATE THE COMMISSION'S ORDERS.  THE AUTHORITIES REFERRED TO
ABOVE MAKE IT ABUNDANTLY PLAIN THAT HAD THE RAILROAD'S PETITION FOR
REHEARING BEEN DENIED WE WOULD HAVE HELD IT TO BE IN THE SOUND
DISCRETION OF THE COMMISSION AND NOT REVIEWABLE.  THE RULE OF
ADMINISTRATIVE LAW SHOULD NOT CHANGE BECAUSE THE SHOE IS ON THE OTHER
FOOT.  THERE IS NO SUFFICIENT REASON FOR BREAKING DOWN OUR DECISIONAL
RULES THAT PROTECT THE ADMINISTRATIVE PROCESS AGAINST TACTICS TO DELAY
FINALITY, UNLESS CONGRESS HAS SO ORDERED US, AS TO WHICH WE NEXT
INQUIRE. 

                       II. 

THE COURT BELOW GAVE AS A SECOND REASON FOR SETTING ASIDE THE TWO
ORDERS THAT THE COMMISSION "LIGHTLY BRUSHED ASIDE" THE ECONOMIC
STABILIZATION PHASE OF THE CASE AND GAVE TOO LITTLE WEIGHT TO THE PRICE
ADMINISTRATOR'S CONTENTIONS AS TO INFLATIONARY TENDENCIES OF RATE
INCREASES.  IT SAID, AND OF COURSE WE AGREE, THAT THE "COMMISSION HERE
IS UNDER A DISTINCT DUTY IN THIS PARTICULAR CASE, TO GIVE FULL EFFECT
TO WARTIME CONDITIONS AND THE STABILIZATION LEGISLATION." 

BUT THAT DOES NOT ANSWER THE REAL QUESTION, WHICH IS WHAT IS THE
EFFECT OF THE STABILIZATION LEGISLATION.  IN SEEKING THIS ANSWER WE ARE
INQUIRING AS TO THE RELATIVE POWERS AND RESPONSIBILITIES OF TWO FEDERAL
AGENCIES.  CONGRESS WAS FREE TO APPORTION THEIR FUNCTIONS AS IT SAW FIT
AND TO TRANSFER ANY PART OF THE NORMAL RESPONSIBILITY OF THE COMMISSION
TO THE PRICE ADMINISTRATOR OR OTHER EXECUTIVE AGENCIES.  COMMERCE
COMMISSION AUTHORIZATION OF RATE INCREASES COULD HAVE BEEN SUBJECTED TO
REVIEW OR VETO SO FAR AS ANY OBJECTION OF THE COMMISSION IS CONCERNED. 

BUT CONGRESS DID NO SUCH THING.  THE LEGISLATIVE HISTORY OF RELEVANT
PROVISIONS OF THE ACT WAS REVIEWED IN DAVIES WAREHOUSE CO. V. BOWLES,
321 U.S. 144.  IT WAS THERE POINTED OUT THAT CONGRESS REJECTED A
PROPOSAL THAT SUCH RATES SHOULD NOT BE INCREASED WITHOUT CONSENT OF THE
PRESIDENT.  ON THE OTHER HAND IT WAS ASSURED BY EXECUTIVE
REPRESENTATIVES THAT RATE ADVANCES ALREADY SUBJECT TO SCRUTINY ON
BEHALF OF THE PUBLIC AND TO PROOF OF REASONABLENESS WERE NOT THE SOURCE
OF THE MORE SUBSTANTIAL INFLATIONARY THREATS.  CONGRESS THEN ADOPTED
THE PROVISION WE EARLIER QUOTED. 

IN THE LIGHT OF SUCH HISTORY THIS COURT HAS BEEN RELUCTANT TO
CONSTRUE THE EMERGENCY LEGISLATION AS GIVING THE ADMINISTRATOR STANDING
TO MAKE MANDATORY DEMANDS UPON OTHER TRIBUNALS OR TO STRIP THEM OF
THEIR USUAL DISCRETIONS.  UNDER THIS STATUTORY PLAN, AS WE HAVE SAID IN
THE LANGUAGE OF MR. JUSTICE DOUGLAS, "THE ADMINISTRATOR DOES NOT CARRY
THE SOLE BURDEN OF THE WAR AGAINST INFLATION."  HECHT CO. V. BOWLES,
321 U.S. 321, 325, 331.  AT THE SAME TIME, WE SAID THAT THE
DISCRETIONARY ACTION OF OTHER TRIBUNALS, EVEN OF COURTS, "SHOULD
REFLECT AN ACUTE AWARENESS OF THE CONGRESSIONAL ADMONITION THAT 'OF ALL
THE CONSEQUENCES OF WAR, EXCEPT HUMAN SLAUGHTER, INFLATION IS THE MOST
DESTRUCTIVE' AND THAT DELAY OR INDIFFERENCE MAY BE FATAL." 

NO CHARGE THAT THE COMMISSION IGNORED THE ADMINISTRATOR'S CONTENTIONS
CAN FAIRLY BE MADE ON THIS RECORD.  FN8  ALTHOUGH HE INTERVENED IN THE
ORIGINAL PROCEEDING, FIRST ON HIS OWN BEHALF AND THEN FOR THE
STABILIZATION DIRECTOR, HE MADE NO EFFORT TO OFFER ANY EVIDENCE EITHER
BEFORE OR AFTER THE HEARING CLOSED, DESPITE THE FACT THAT NEARLY NINE
MONTHS ELAPSED BETWEEN THE CLOSE OF THE HEARING AND THE COMMISSION'S
ORDER.  FN9  NOR DID HE EVEN MOVE FOR REHEARING, UNTIL AFTER THE
RAILROAD HAD ASKED FOR MODIFICATION OF THE ORDER.  HE WAS THEN
PERMITTED TO INTERVENE, TO FILE BRIEFS AND TO BE HEARD IN ARGUMENT, TO
CROSS-EXAMINE AND TO OFFER EVIDENCE.  HIS DESIRE TO REOPEN THE WHOLE
CASE WAS REFUSED, BECAUSE THE COMMISSION, CONSIDERING ALL THAT HE
OFFERED TO SHOW, SAID, "CONSIDERING THE CONTENTS OF THE MOTION NOW
BEFORE US, AND THE OFFERS OF ADDITIONAL EVIDENCE MADE AT THE RECENT
FURTHER HEARING, WE HAVE NO REASON TO BELIEVE THAT, IF THE ADDITIONAL
HEARING SOUGHT WERE HELD, WE WOULD FEEL WARRANTED IN MODIFYING OUR
FINDINGS AS MADE IN THE SECOND REPORT."  AND THE COMMISSION IN ITS
SECOND REPORT WEIGHED THE CONTENTIONS OF THE ADMINISTRATOR AND DECIDED
THAT THEY DID NOT OUTWEIGH THE NEEDS FOR ADDED REVENUE FOR THE ROAD. 
IT SAID, "IT SEEMS TO US THAT AN INCREASE OF 1 CENT IN RESPONDENT'S
DOWNTOWN FARE IS UNLIKELY TO HAVE ANY INFLATIONARY EFFECT, AND THAT THE
EFFECT THEREOF UPON THE COST OF LIVING, WHILE A FACTOR TO BE GIVEN
CONSIDERATION, WILL BE SO SLIGHT, A MAXIMUM OF ABOUT 12 CENTS A WEEK
AND 52 CENTS A MONTH PER PASSENGER, AS TO BE NEGLIGIBLE."  CONSIDERING
THIS AMONG OTHER FINDINGS OF FACT IT CONCLUDED TO AUTHORIZE THE
INCREASED FARE "TO MEET INCREASED OPERATING COSTS AND THE INTEREST ON
ITS BONDS." 

THAT THE WEIGHT TO BE GIVEN TO STABILIZATION CONSIDERATIONS IN
RELATION TO OTHER FACTORS CALLS FOR AN EXERCISE OF JUDGMENT IN ANY
GIVEN CASE IS NOT DENIED BY THE ADMINISTRATOR.  INDEED IN EXCEPTING TO
THE EXAMINER'S REPORT HE SAID, "WE DID NOT NOR DO WE NOW SUGGEST THAT
THIS PROPOSED INCREASE IN FARE (FROM 8 CENTS TO 10 CENTS) WILL IN AND
OF ITSELF RESULT IN INFLATION.  SUCH A SUGGESTION WOULD, OF COURSE, BE
ASININE."  WHO, THEN, IN THIS CASE IS TO JUDGE THE WEIGHT TO BE GIVEN
SUCH A FACTOR?  THE OPINION OF THE ADMINISTRATOR IS NOT, AS WE HAVE
POINTED OUT, MANDATORY ON THE COMMISSION.  NOR IS SUCH AN ECONOMIC
JUDGMENT THE FUNCTION OF THE COURTS UNLESS ALL THAT HAS BEEN
ESTABLISHED IN ADMINISTRATIVE LAW CONCERNING THE LIMITATION ON JUDICIAL
REVIEW IS TO BE THROWN OVERBOARD.  THE DECISION OF SUCH A MATTER BY THE
COMMISSION IS CLEARLY NOT REVIEWABLE BY A COURT BECAUSE IT THINKS
DIFFERENTLY OF THE WEIGHT THAT SHOULD BE ACCORDED TO SOME FACTORS IN
RELATION TO OTHERS. 

THE INTERSTATE COMMERCE COMMISSION HAS RESPONSIBILITY FOR MAINTAINING
AN ADEQUATE SYSTEM OF WARTIME TRANSPORTATION.  IT IS WITHOUT POWER TO
PROTECT THESE ESSENTIAL TRANSPORTATION AGENCIES FROM RISING LABOR AND
MATERIAL COSTS.  IT CAN DECIDE ONLY HOW SUCH UNAVOIDABLE COSTS SHALL BE
MET.  THEY CAN IN WHOLE OR IN PART BE CHARGED TO INCREASED FARES, OR
THEY CAN BE ALLOWED TO RESULT IN DEFAULTS AND RECEIVERSHIPS AND
REORGANIZATIONS, OR THEY MAY BE OFFSET BY INADEQUATE SERVICE OR DELAYED
MAINTENANCE.  ALL OF THESE CONSIDERATIONS MUST BE WEIGHED BY THE
COMMISSION WITH WARTIME TRANSPORTATION NEEDS AS WELL AS AVOIDING
INFLATIONARY TENDENCIES AS A PUBLIC RESPONSIBILITY.  THE NEED FOR
INFORMED, EXPERT AND UNBIASED JUDGMENT IS APPARENT.  THE PROBLEM IS
INTRICATE, THE CARRIER IS ONE OF PECULIAR CHARACTERISTICS, ITS WARTIME
TRAFFIC IS OF VARYING DENSITY, WITH PEAKS AND RUSH HOURS, THE RATES AND
CARRYING CAPACITIES OF COMPETITORS BY BUS AND FERRY ARE INVOLVED IN ANY
ESTIMATE OF TRAFFIC DIVERSIONS OR PROBABLE EFFECTS OF RATES.  WHAT
RATES ARE REQUIRED TO MEET ACTUAL AND PROPER OPERATING EXPENSES, WHAT
REVENUE MUST BE AVAILABLE TO AVOID DEFAULTS AND SUSTAIN CREDIT, WHAT
DIVISIONS SHOULD BE MADE ON INTERCHANGED TRAFFIC ARE AS COMPLEX
PROBLEMS IN RATE-MAKING AS CAN READILY BE IMAGINED.  THE DELICACY OF
THE COMMISSION'S TASK IN WARTIME IS NO REASON FOR ALLOWING GREATER
SCOPE TO JUDICIAL REVIEW THAN WE ARE WILLING TO EXERCISE IN PEACETIME. 
WE THINK THE WEIGHT TO BE GIVEN TO THE PRICE ADMINISTRATOR'S
CONTENTIONS WAS FOR THE COMMISSION, NOT THE COURT, TO DETERMINE.  THE
SCOPE OF PROPER JUDICIAL REVIEW DOES NOT EXPAND OR CONTRACT, DEPENDING
ON WHAT PARTY INVOKES IT.  IT IS AS NARROW NOW AS IT WAS WHEN APPEALED
TO BY THE COMPANY.  CF. HUDSON & MANHATTAN R. CO. V. UNITED STATES, 313
U.S. 98.  IF CONGRESS DESIRES TO GRANT ITS OWN AGENCIES GREATER
PRIVILEGES OF JUDICIAL REVIEW THAN HAVE BEEN ALLOWED TO PRIVATE PARTIES
IT IS AT LIBERTY TO DO SO, BUT IT IS NOT FOR THE COURT TO SET ASIDE,
WITHOUT LEGISLATIVE COMMAND, ITS SLOW-WROUGHT GENERAL PRINCIPLES WHICH
PROTECT THE FINALITY AND INTEGRITY OF DECISIONS BY ADMINISTRATIVE
TRIBUNALS. 

AS TO THE CONTENTION THAT THE STABILIZATION ACT GAVE THE
ADMINISTRATOR STANDING SUPERIOR TO THAT OF OTHER LITIGANTS TO ASK THE
COURTS TO OVERRIDE THE NORMAL DISCRETION OF THE COMMISSION IN GRANTING
OR REFUSING REHEARINGS, WE HAVE ALREADY SPOKEN IN VINSON V. WASHINGTON
GAS LIGHT CO., 321 U.S. 489.  THERE, AS HERE, THE STABILIZATION
DIRECTOR INSISTED THAT HE WAS "DENIED A FAIR HEARING BECAUSE THE
COMMISSION REFUSED IN THE CURRENT PROCEEDING TO ALTER AND ENLARGE THE
SCOPE OF INQUIRY."  THERE, AS HERE, THE CONTROVERSY WAS "BETWEEN TWO
GOVERNMENTAL AGENCIES AS TO WHETHER THE POWERS OF THE ONE OR THE OTHER
ARE PREPONDERANT IN THE CIRCUMSTANCES."  HERE, AS THERE, WE DECLINE TO
INVADE THE DISCRETION OF ADMINISTRATIVE TRIBUNALS TO CONTROL THEIR OWN
REHEARING PROCEDURE WHERE THE CONGRESS HAS NOT GIVEN THE ADMINISTRATOR
STANDING SUPERIOR TO THAT OF A LITIGANT AND HAS NOT DIVESTED THE
COMMISSION OF ITS ORDINARY DISCRETIONS.  THE JUDGMENT BELOW IS
REVERSED. 

FN1  ACT OF JANUARY 30, 1942, C. 26, 56 STAT. 23, 50 U.S.C. APP.,
SUPP. II, SEC. 901 ET SEQ. 

FN2  ACT OF OCTOBER 2, 1942, C. 578, 56 STAT. 765, 50 U.S.C. APP.,
SUPP. II, SEC. 961 ET SEQ. 

FN3  PRIOR TO 1920, THE HUDSON & MANHATTAN'S RATES HAD BEEN 5 CENTS
ON THE DOWNTOWN LINE AND 7 CENTS ON THE UPTOWN LINE.  IN THAT YEAR THE
RAILROAD PROPOSED A FLAT FARE OF 8 CENTS, BUT THE COMMISSION FIXED THE
FARES AT 10 CENTS FOR THE UPTOWN LINE AND 6 CENTS FOR THE DOWNTOWN
LINE.  LOCAL FARES OF HUDSON & MANHATTAN RAILROAD CO., 58 I.C.C. 270. 
THOSE FARES CONTINUED IN EFFECT UNTIL THE 1937 PROCEEDINGS BEGAN, WHEN
THE RAILROAD SOUGHT TO MAKE THE FARE 10 CENTS ON BOTH LINES. 

FN4  227 I.C.C. 741.  THE 10-CENT FARE ON THE UPTOWN LINE CONTINUED
IN EFFECT. 

FN5  BY EXECUTIVE ORDER NO. 9250, 7 FED. REG. 7871, THE PRESIDENT
DESIGNATED THE DIRECTOR OF ECONOMIC STABILIZATION TO RECEIVE NOTICE OF
PROPOSED RATE INCREASES PURSUANT TO THE STATUTE.  IN THE ENSUING
PROCEEDINGS IN THIS CASE THE DIRECTOR WAS REPRESENTED BY THE PRICE
ADMINISTRATOR. 

FN6  255 I.C.C. 649. 

FN7  256 I.C.C. 269. 

FN8  THE COMMISSION HAS SHOWN IN OTHER CASES THAT IT IS WATCHFUL
AGAINST INFLATION AND CHARGES ITSELF WITH ENFORCING STABILIZATION
POLICY.  SEE INCREASES IN TEXAS RATES, FARES, AND CHARGES, 253 I.C.C.
723, 734:  "WE ARE NOT UNMINDFUL OF THE EVIL EFFECTS OF INFLATION, AND,
IN OUR JUDGMENT, THE INFLATIONARY TENDENCIES OF GENERAL INCREASES IN
RATES CONSTITUTE A FACTOR WHICH WE MAY AND SHOULD TAKE INTO
CONSIDERATION IN PASSING JUDGMENT UPON SUCH INCREASES.  ...  INCREASES
IN THE GENERAL PRICE LEVEL ULTIMATELY AFFECT THE COSTS OF RENDERING
TRANSPORTATION SERVICE AND THE VALUE OF SUCH SERVICE TO THE PUBLIC. 
SUCH CONSIDERATIONS WERE IN FACT CAREFULLY WEIGHED AND REFLECTED IN THE
INCREASES WHICH WE AUTHORIZED UNDER EX PARTE NO. 148."  IN EX PARTE NO.
148, REPORTED AS INCREASED RAILWAY RATES, FARES, AND CHARGES, 1942, 248
I.C.C. 545, THE RAILROADS SOUGHT GENERAL INCREASES OF 10 PER CENT IN
FREIGHT AND PASSENGER RATES.  THE OFFICE OF PRICE ADMINISTRATION
APPEARED BUT TOOK NO POSITION WITH RESPECT TO THE GENERAL INCREASE
SOUGHT, AND DID NOT NAME THE INDIVIDUAL COMMODITIES WITH WHOSE RATES IT
PROFESSED TO BE PARTICULARLY CONCERNED.  248 I.C.C. AT 571. 
NEVERTHELESS THE COMMISSION APPARENTLY TOOK CAREFUL NOTE OF "THE EFFECT
UPON THE NATIONAL DEFENSE OF CUMULATED INCREASES IN PRODUCTION COSTS OF
MANUFACTURED PRODUCTS" AND AS TO SPECIFIC COMMODITIES, AFTER
CONSIDERATION OF THE FINANCIAL POSITION OF THE AFFECTED RAILROADS,
DENIED OR RESTRICTED THE INCREASES SOUGHT.  248 I.C.C. AT 610. 

FN9  THE COMMISSION DID HAVE BEFORE IT, HOWEVER, TRAFFIC AND GROSS
REVENUE FIGURES FOR THE FIRST TWO MONTHS OF 1943, WHICH WERE
INCORPORATED INTO THE RECORD BY STIPULATION AT THE ORAL ARGUMENT ON
APRIL 20, 1943. 

MR. JUSTICE RUTLEDGE DISSENTS. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS: 

I WOULD DECIDE THIS CASE DIFFERENTLY.  I THINK THIS DECISION AND
VINSON V. WASHINGTON GAS LIGHT CO., 321 U.S. 489, PRETTY WELL
EMASCULATE THE PROVISION OF THE ACT OF OCTOBER 2, 1942(56 STAT. 765)
WHICH PROHIBITS "ANY GENERAL INCREASE" IN UTILITY RATES UNLESS NOTICE
IS GIVEN TO THE FEDERAL AGENCY IN CHARGE OF INFLATION CONTROL AND THAT
AGENCY IS ALLOWED TO INTERVENE IN THE PROCEEDINGS.  AS I STATED IN MY
DISSENT IN VINSON V. WASHINGTON GAS LIGHT CO., SUPRA, CONGRESS INTENDED
BY THAT PROVISION THAT THERE SHOULD BE AS GREAT AN ACCOMMODATION AS
POSSIBLE BETWEEN ESTABLISHED STANDARDS FOR RATE-MAKING AND EXISTING
WARTIME NECESSITIES.  GENERAL RATE INCREASES WERE NOT TO BE ALLOWED
UNLESS, FOR EXAMPLE, IT WAS SHOWN THAT THEY WERE NECESSARY TO PRESERVE
EXISTING FACILITIES UNDER WAR CONDITIONS.  I AGREE WITH JUDGE
MCLAUGHLIN AND JUDGE MEANEY OF THE THREE-JUDGE COURT THAT THIS
EMERGENCY LEGISLATION REQUIRED THE COMMISSION "TO GIVE FULL EFFECT TO
WARTIME CONDITIONS AND THE STABILIZATION LEGISLATION."  IT WAS THAT
POLICY WHICH WAS REFLECTED IN EXECUTIVE ORDER 9328 PROMULGATED BY THE
PRESIDENT ON APRIL 8, 1943(8 FED. REG. 4681, 4682) AND PROVIDING AS
FOLLOWS: 

"THE ATTENTION OF ALL AGENCIES OF THE FEDERAL GOVERNMENT, AND OF ALL
STATE AND MUNICIPAL AUTHORITIES, CONCERNED WITH THE RATES OF COMMON
CARRIERS OR OTHER PUBLIC UTILITIES, IS DIRECTED TO THE STABILIZATION
PROGRAM OF WHICH THIS ORDER IS A PART SO THAT RATE INCREASES WILL BE
DISAPPROVED AND RATE REDUCTIONS EFFECTED, CONSISTENTLY WITH THE ACT OF
OCTOBER 2, 1942, AND OTHER APPLICABLE FEDERAL, STATE OR MUNICIPAL LAW,
IN ORDER TO KEEP DOWN THE COST OF LIVING AND EFFECTUATE THE PURPOSES OF
THE STABILIZATION PROGRAM."    THAT POLICY IS ONCE MORE DISREGARDED. 
THE INTERSTATE COMMERCE COMMISSION PROCEEDS TO GRANT RATE INCREASES ON
THE BASIS OF PEACETIME STANDARDS.  IT JUSTIFIES THE INCREASE UNDER THE
ACT OF OCTOBER 2, 1942, BY SAYING THAT THE INCREASE PER CONSUMER IS
NEGLIGIBLE.  BY THE SAME TOKEN EVERY ITEM IN THE LIST OF CONSUMER
NECESSITIES COULD BE INCREASED A LIKE PERCENTAGE.  WHAT WAS NEGLIGIBLE
ITEM BY ITEM WOULD SOON BE SUBSTANTIAL IN THE AGGREGATE.  THAT WHICH
FIRST APPEARS AS A SMALL TRICKLE MAY EVENTUALLY UNDERMINE THE DAM. 
BUT THOUGH I DISAGREE WITH THE RESULT REACHED, I THINK IT IS PRECISELY
WHAT VINSON V. WASHINGTON GAS LIGHT CO. INTENDED.  THAT CASE AND DAVIES
WAREHOUSE CO. V. BOWLES, 321 U.S. 144, GIVE PREFERRED TREATMENT TO A
FEW BUSINESSES BY ALLOWING THEM TO GAIN ADVANTAGES FROM WAR
CONDITIONS.  I WOULD OVERRULE THEM.  BUT SO LONG AS THEY STAND I DO NOT
SEE HOW WE CAN DENY THE INTERSTATE COMMERCE COMMISSION THE POWER TO DO
FOR THE HUDSON & MANHATTAN RAILROAD CO. WHAT ANOTHER COMMISSION WAS
ALLOWED TO DO FOR THE WASHINGTON GAS LIGHT CO. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 
..END :
























WISCONSIN GAS CO. V. U.S., 322 U.S. 526 


NO. 565.  ARGUED MARCH 10, 1944.  - DECIDED MAY 29, 1944.  - 138 F.2D
597, AFFIRMED. 


1.  PAYMENTS MADE BY A CORPORATION OF THE TAX LEVIED BY THE WISCONSIN
PRIVILEGE DIVIDEND TAX ACT, HELD, FOR FEDERAL INCOME TAX PURPOSES, NOT
DEDUCTIBLE FROM GROSS INCOME OF THE CORPORATION, EITHER UNDER SEC.
23(C) OR SEC. 23(D) OF THE REVENUE ACT OF 1934.  PP. 529, 531. 

2.  THE PAYMENTS WERE NOT DEDUCTIBLE UNDER SEC. 23(C) AS "TAXES
PAID," SINCE, WITHIN THE MEANING OF APPLICABLE TREASURY REGULATIONS,
THE TAX WAS NOT "IMPOSED" ON THE CORPORATION.  P. 529. 

3.  NOR WERE THE PAYMENTS DEDUCTIBLE UNDER SEC. 23(D) AS "TAXES
IMPOSED UPON A SHAREHOLDER OF THE CORPORATION UPON HIS INTEREST AS
SHAREHOLDER WHICH ARE PAID BY THE CORPORATION WITHOUT REIMBURSEMENT
FROM THE SHAREHOLDER," SINCE, WITHIN THE MEANING OF THE SECTION, THE
TAX WAS NOT "PAID BY THE CORPORATION WITHOUT REIMBURSEMENT FROM THE
SHAREHOLDER."  P. 531. 

WISCONSIN GAS & ELECTRIC CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 321 U.S. 757, TO REVIEW A JUDGMENT FOR THE COMPANY, 46
F.SUPP.  929, IN A SUIT FOR A REFUND OF FEDERAL INCOME TAX. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

WISCONSIN GAS AND ELECTRIC COMPANY IS A WISCONSIN CORPORATION ENGAGED
IN PUBLIC UTILITY AND ASSOCIATED OPERATIONS WHOLLY WITHIN THAT STATE. 
IN 1935 IT DECLARED A DIVIDEND FROM ITS PUBLIC UTILITY EARNINGS, AND IN
ACCORDANCE WITH THE REQUIREMENTS OF WISCONSIN'S PRIVILEGE DIVIDEND TAX
ACT (WISCONSIN LAWS OF 1935, C. 505, SEC. 3; C. 552), IT PAID TO THE
STATE TWO AND ONE-HALF PER CENT OF THE AMOUNT OF DIVIDENDS THUS
DECLARED.  IT NOW CLAIMS THIS SUM, $3,750, AS A DEDUCTION FROM ITS
GROSS INCOME FOR 1935 FOR FEDERAL INCOME TAX PURPOSES. 

AFTER THE CLAIM WAS DISALLOWED AND A DEFICIENCY ASSESSED, THE COMPANY
PAID THE TAX AND BROUGHT THIS SUIT FOR REFUND UNDER 28 U.S.C. SEC.
41(20).  THE DISTRICT COURT WAS OF THE OPINION THAT THE DECISION IN
WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, REQUIRED PERMITTING THE
DEDUCTION UNDER SEC. 23(C) OF THE REVENUE ACT OF 1934, 48 STAT. 680,
688.  IT THEREFORE GAVE JUDGMENT FOR THE COMPANY.  46 F.SUPP.  929. 
THE CIRCUIT COURT OF APPEALS DISAGREED ON THIS QUESTION AND, HOLDING
THE DEFICIENCY CORRECTLY DETERMINED, REVERSED THE JUDGMENT.  138 F.2D
597.  WE GRANTED CERTIORARI, 321 U.S. 757, BECAUSE OF THE CLAIMED
CONFLICT WITH THE PENNEY CASE AND THE IMPORTANCE OF THE QUESTION IN THE
ADMINISTRATION OF THE REVENUE LAWS. 

PETITIONER'S CLAIM FOR A REFUND RESTS ON THE ASSERTION IT WAS
ENTITLED TO DEDUCT THE PRIVILEGE DIVIDEND TAX PAYMENTS UNDER EITHER
SEC. 23(C) OR SEC. 23(D) OF THE REVENUE ACT OF 1934, 48 STAT. 680, 688,
689. 

PAID OR ACCRUED WITHIN THE TAXABLE YEAR."  THE RELEVANT TREASURY
REGULATION, WHICH IS OF LONG STANDING,  FN1  INCLUDES AMONT "TAXES
PAID" THOSE IMPOSED BY ANY STATE, AND PROVIDES:  "IN GENERAL TAXES ARE
DEDUCTIBLE ONLY BY THE PERSON UPON WHOM THEY ARE IMPOSED."  THE
QUESTION IN THIS BRANCH OF THE CASE, THEREFORE, COMES DOWN TO WHETHER
THE PRIVILEGE DIVIDEND TAX IS "IMPOSED" UPON THE CORPORATION DECLARING
THE DIVIDENDS. 

RESOLUTION OF THAT QUESTION REQUIRES EXAMINATION OF THE WISCONSIN
STATUTE AND ITS APPLICATION AND INTERPRETATION BY THE COURTS OF THAT
STATE.  KEITH V. JOHNSON, 271 U.S. 1; UNITED STATES V. KOMBST, 286 U.S.
424; MAGRUDER V. SUPPLEE, 316 U.S. 394.  IN 1935 THE STATE ACT  FN2
PROVIDED: 

"(1)  FOR THE PRIVILEGE OF DECLARING AND RECEIVING DIVIDENDS, OUT OF
INCOME DERIVED FROM PROPERTY LOCATED AND BUSINESS TRANSACTED IN THIS
STATE, THERE IS HEREBY IMPOSED A TAX EQUAL TO TWO AND ONE-HALF PER
CENTUM OF THE AMOUNT OF SUCH DIVIDENDS DECLARED AND PAID BY ALL
CORPORATIONS (FOREIGN AND LOCAL) AFTER THE PASSAGE AND PUBLICATION OF
THIS ACT AND PRIOR TO JULY 1, 1937.  SUCH TAX SHALL BE DEDUCTED AND
WITHHELD FROM SUCH DIVIDENDS PAYABLE TO RESIDENTS AND NONRESIDENTS BY
THE PAYOR CORPORATION. 

"(2)  EVERY CORPORATION REQUIRED TO DEDUCT AND WITHHOLD ANY TAX UNDER
THIS SECTION SHALL, ON OR BEFORE THE LAST DAY OF THE MONTH FOLLOWING
THE PAYMENT OF THE DIVIDEND, MAKE RETURN THEREOF AND PAY THE TAX TO THE
TAX COMMISSION, REPORTING SUCH TAX ON THE FORMS TO BE PRESCRIBED BY THE
TAX COMMISSION. 

"(3)  EVERY SUCH CORPORATION HEREBY MADE LIABLE FOR SUCH TAX, SHALL
DEDUCT THE AMOUNT OF SUCH TAX FROM THE DIVIDENDS SO DECLARED."  FN3 

THE TAX IS AIMED AT CORPORATE EARNINGS "DERIVED FROM PROPERTY LOCATED
AND BUSINESS TRANSACTED IN" WISCONSIN.  DOUBTLESS ALL TAXES ON
CORPORATE EARNINGS ARE, TO A GREATER OR LESSER EXTENT, TRANSLATED INTO
ECONOMIC BURDENS UPON THE SHAREHOLDER.  AND NOT ALL SUCH TAXES CAN BE
SAID, FOR THAT REASON, TO BE "IMPOSED" UPON THE SHAREHOLDER.  CF.
BIDDLE V. COMMISSIONER, 302 U.S. 573.  HOWEVER, HERE THE BURDEN IS
PLACED UPON HIM, NOT DERIVATIVELY AS THROUGH AN INCOME TAX UPON THE
CORPORATION, BUT DIRECTLY AND EXCLUSIVELY.  WHILE CORPORATE EARNINGS
ARE THE TARGET OF THIS TAX, ITS SPECIFIC THRUST, ACCORDING TO THE
WISCONSIN SUPREME COURT, IS AT THEIR TRANSFER AS DIVIDENDS TO THE
SHAREHOLDER, RATHER THAN AT THEIR RECEIPT AS INCOME BY THE
CORPORATION.  J.C. PENNEY CO. V. TAX COMMISSION, 238 WIS. 69, 298 N.W.
186.  IT IS NOT IMPOSED UNTIL DIVIDENDS ARE DECLARED.  WHEN IMPOSED IT
IS TO BE DEDUCTED AND WITHHELD NOT FROM EARNINGS RECEIVED BY THE
CORPORATION, BUT "FROM THE DIVIDENDS SO DECLARED."  THE SUMS THUS PAID
TO THE STATE ARE TO BE DEDUCTED FROM THE FIXED DIVIDENDS OWED TO THE
PREFERRED STOCKHOLDER WHO CANNOT RECOVER HIS LOSS FROM THE
CORPORATION.  BLIED V. WISCONSIN FOUNDRY CO., 243 WIS. 221, 10 N.W.2D
142.  AND THE CORPORATION WHICH SEEKS TO LEAVE THE STOCKHOLDER'S
DIVIDEND WHOLE BY ABSORBING THE TAX ITSELF RECEIVES NO CREDIT THEREFOR
UNDER THOSE PROVISIONS OF THE WISCONSIN INCOME TAX LAW COMPARABLE TO
SEC. 23(C), BECAUSE THE STATE "PUTS THE BURDEN OF THIS TAX UPON THE
STOCKHOLDER AND NOT UPON THE CORPORATION."  WISCONSIN GAS CO. V.
DEPARTMENT OF TAXATION, 243 WIS. 216, 10 N.W.2D 140. 

THAT WISCONSIN HAS MADE THE CORPORATION ITS TAX COLLECTOR BY
REQUIRING IT TO WITHHOLD PAYMENT OF A PORTION OF THE DIVIDENDS AND TO
TURN THAT PORTION OVER TO THE STATE DOES NOT MAKE THE TAX ONE "IMPOSED"
UPON THE CORPORATION, AT LEAST UNDER SEC. 23(C) AND THE RELEVANT
TREASURY REGULATION.  COMPARE ELIOT NATIONAL BANK V. GILL, 218 F.
600(C.C.A.); PORTER V. UNITED STATES, 27 F.2D 882(C.C.A.).  THE FACT IS
THAT THE TAX IS EXTRACTED FROM FIXED DIVIDENDS OWED TO THE STOCKHOLDER,
NOT MERELY FROM HIS COMMON INTEREST IN CORPORATE EARNINGS.  UNDER
WISCONSIN DECISIONS THE IMPACT OF THE TAX IS FOCUSED NARROWLY AND FALLS
INDEPENDENTLY UPON EACH RECIPIENT OF THE DIVIDEND WITHOUT AFFECTING THE
TAX BURDEN OF THE CORPORATION OR OTHER SHAREHOLDERS.  THE OPERATION
THUS DISCLOSED FOR THE TAX AMPLY SUSTAINS THE EMPHATIC DECLARATION OF
THE WISCONSIN SUPREME COURT THAT IT IS IMPOSED UPON THE SHAREHOLDER,
NOT UPON THE CORPORATION.  THIS VIEW IS COMPLEMENTED BY THE
INTERPRETATION OF THE BUREAU OF INTERNAL REVENUE THAT THE TAX PAYMENTS,
ALTHOUGH FORMALLY MADE BY THE CORPORATION, ARE DEDUCTIBLE BY THE
SHAREHOLDER.  FN4  WE CONCLUDE THAT THE PRIVILEGE DIVIDEND TAX IS NOT
"IMPOSED" UPON PETITIONER AND THEREFORE PAYMENTS OF IT ARE NOT
DEDUCTIBLE UNDER SEC. 23(C). 

THERE IS OF COURSE NO QUESTION IN THIS CASE THAT WISCONSIN HAS THE
POWER, UNDER THE FEDERAL CONSTITUTION, TO IMPOSE THIS TAX.  THAT
QUESTION WAS INVOLVED IN WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435,
WHERE THIS COURT WAS CONCERNED WITH DIVIDENDS DECLARED BY A FOREIGN
CORPORATION DOING A LOCAL BUSINESS IN WISCONSIN.  THE DECISION WAS THAT
THE RELATIONSHIP OF THE STATE TO THE ENTERPRISES THERE SHOWN TO HAVE
BEEN CARRIED ON WITHIN ITS BOUNDARIES AND UNDER THE PROTECTION OF ITS
POLICE POWER WAS SUCH THAT ITS TAXING POWER COULD CONSTITUTIONALLY
REACH EARNINGS DERIVED FROM THOSE OPERATIONS, REGARDLESS OF HOW THE
IMPOST WAS CHARACTERIZED BY THE STATE.  THE STATE'S POWER TO TAX
EARNINGS OF THAT CHARACTER IS NOT DEPENDENT UPON WHETHER THE TAX IS
HINGED ON THE RECEIPT OF THEM AS CORPORATE INCOME OR ON THE TRANSFER
AND RECEIPT OF THEM AS DIVIDENDS.  NOR DOES IT DEPEND UPON WHETHER THE
TAX HERE INVOLVED IS "IMPOSED" UPON THE CORPORATION OR UPON THE
STOCKHOLDER.  INTERNATIONAL HARVESTER CO. V. WISCONSIN DEPARTMENT OF
TAXATION, ANTE, P. 435; MINNESOTA MINING & MANUFACTURING CO. V.
WISCONSIN DEPARTMENT OF TAXATION, ANTE, P. 435.  IN THIS CASE, WHERE
THE EARNINGS OF A WISCONSIN CORPORATION DOING BUSINESS SOLELY IN
WISCONSIN ARE THE SOURCE OF THE DIVIDENDS, THE STATE'S POWER TO TAX
THEIR TRANSFER AND IMPOSE THAT TAX UPON THE STOCKHOLDER CANNOT BE
DOUBTED. 

PETITIONER ALSO URGES THAT IF THE PAYMENTS ARE NOT DEDUCTIBLE FROM
ITS GROSS INCOME UNDER SEC. 23(C), THEY ARE DEDUCTIBLE UNDER SEC. 23(D)
AS "TAXES IMPOSED UPON A SHAREHOLDER OF THE CORPORATION UPON HIS
INTEREST AS SHAREHOLDER WHICH ARE PAID BY THE CORPORATION WITHOUT
REIMBURSEMENT FROM THE SHAREHOLDER."  FN5  THE GOVERNMENT RESPONDS THAT
THE PRIVILEGE DIVIDEND TAX IS NOT THE KIND OF TAX "UPON HIS INTEREST AS
SHAREHOLDER" WHICH SEC. 23(D) CONTEMPLATES, AND THAT IN ANY EVENT IT IS
NOT ONE WHICH IS "PAID BY THE CORPORATION WITHOUT REIMBURSEMENT FROM
THE SHAREHOLDER" WITHIN THE MEANING OF THE SECTION.  SINCE WE THINK THE
GOVERNMENT IS CORRECT IN THE LATTER CONTENTION, WE HAVE NO OCCASION TO
CONSIDER WHETHER THIS TAX IS ONE "UPON HIS INTEREST AS SHAREHOLDER." 

THE ORIGINS OF THE PRESENT SEC. 23(D) IN THE REVENUE ACT OF 1921
DISCLOSE THAT ITS ADOPTION WAS PROMPTED BY THE PLIGHT OF VARIOUS
BANKING CORPORATIONS WHICH PAID AND VOLUNTARILY ABSORBED THE BURDEN OF
CERTAIN LOCAL TAXES IMPOSED UPON THEIR SHAREHOLDERS, BUT WERE NOT
PERMITTED TO DEDUCT THOSE PAYMENTS FROM GROSS INCOME.  FN6  THIS
HISTORY SUGGESTS IT IS THE VOLUNTARY ASSUMPTION OF THE BURDEN OF THE
TAX, RATHER THAN ACTING AS TAX COLLECTOR AND PAYING IT FOR ANOTHER ON
WHOM THE BURDEN FALLS, WHICH UNDERPINS THE DEDUCTION.  AND THIS IS
PLAINLY DEMONSTRATED BY THE REQUIREMENT THAT TO BE ENTITLED TO THE
DEDUCTION THE CORPORATION MUST NOT BE REIMBURSED BY THE SHAREHOLDER FOR
PAYING THE TAX.  TO PAY THE TAX WITH SUMS WHICH HAVE BEEN DEDUCTED AND
WITHHELD FROM DIVIDENDS DECLARED AND DISTRIBUTED AMOUNTS TO OBTAINING
THE REIMBURSEMENT WHICH RENDERS THE DEDUCTION UNAVAILABLE.  HENCE
PETITIONER CANNOT PREVAIL ON SEC. 23(D). 

ACCORDINGLY, THE JUDGMENT IS AFFIRMED. 

FN1  TREASURY REGULATIONS 86, ART. 23(C)-(1); CF. TREASURY
REGULATIONS 65, ART. 131; TREASURY REGULATIONS 69, ART. 131; TREASURY
REGULATIONS 74, ART. 151; TREASURY REGULATIONS 77, ART. 151. 

FN2 WISCONSIN LAWS OF 1935, C. 505, SEC. 3 AS AMENDED BY WISCONSIN
LAWS OF 1935, C. 552.  THE ACT WAS SUBSEQUENTLY AMENDED (WISCONSIN LAWS
OF 1937, C. 233; C. 309, SEC. 3; WISCONSIN LAWS OF 1939, C. 198;
WISCONSIN LAWS OF 1941, C. 63, SEC. 3; WISCONSIN LAWS OF 1943, C. 367,
SEC. 2), BUT THE AMENDMENTS LEAVE THE PRESENT QUESTION UNAFFECTED. 

FN3  THE ACT IS SET OUT IN FULL IN WISCONSIN V. J.C. PENNEY CO., 311
U.S. 435 AT NOTE 1. 

FN4  I.T. 3002, XV-2 CUM. BULL.  142-143(1936). 

FN5  SECTION 23(D) PROVIDES:  "TAXES OF SHAREHOLDER PAID BY
CORPORATION.  - THE DEDUCTION FOR TAXES ALLOWED BY SUBSECTION (C) SHALL
BE ALLOWED TO A CORPORATION IN THE CASE OF TAXES IMPOSED UPON A
SHAREHOLDER OF THE CORPORATION UPON HIS INTEREST AS SHAREHOLDER WHICH
ARE PAID BY THE CORPORATION WITHOUT REIMBURSEMENT FROM THE SHAREHOLDER,
BUT IN SUCH CASES NO DEDUCTION SHALL BE ALLOWED THE SHAREHOLDER FOR THE
AMOUNT OF SUCH TAXES." 

FN6  HEARINGS BEFORE COMMITTEE ON FINANCE ON H.R. 8245, U.S. SENATE,
67TH CONG., 1ST SESS., 250-251.  COMPARE, E.G., ELIOT NATIONAL BANK V.
GILL, 218 F. 600(C.C.A.); NATIONAL BANK OF COMMERCE V. ALLEN, 223 F.
472(C.C.A.); FIRST NATIONAL BANK V. MCNEEL, 238 F. 559(C.C.A.). 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON: 

SINCE I THINK THIS TAX WAS NOT ONE ON THE CORPORATION (SEE DISSENT IN
INTERNATIONAL HARVESTER CO. V. WISCONSIN DEPARTMENT OF TAXATION, ANTE,
P. 445) I SEE NO BASIS FOR THE CORPORATION TO CLAIM A DEDUCTION UNDER
SEC. 23(C) OF THE REVENUE ACT OF 1934.  THE TAX WAS ON THE STOCKHOLDER,
AND IT WAS PAID BY THE CORPORATION.  THE COMPANY WOULD BE ENTITLED TO
DEDUCTIONS UNDER SEC. 23(D) IF IT WERE NOT REIMBURSED.  THE CREDIT
GIVEN TO THE CORPORATION AGAINST A DECLARED DIVIDEND IS IN MY OPINION A
"REIMBURSEMENT" OF THE CORPORATION FOR PAYMENT OF THE TAX IF THE
WISCONSIN TAXING ACT IS VALID.  NOTWITHSTANDING DISSENTING VIEWS ON
THAT SUBJECT, I CONSIDER MYSELF NOW BOUND BY THE CONCLUSION OF THE
COURT.  HENCE I AGREE THAT NO RIGHT TO A DEDUCTION EXISTS. 
..END :




















COLUMBIA GAS CO. V. AMER. FUEL CO., 322 U.S. 379 


NO. 814.  - DECIDED MAY 22, 1944.  - DISMISSED. 


1.  THOUGH A COURT OF BANKRUPTCY POSSESSES AND MAY EXERCISE EQUITY
POWERS IN THE DISPOSITION OF SUITS IN BANKRUPTCY, A BANKRUPTCY
PROCEEDING IS NOT ITSELF A SUIT IN EQUITY EITHER BY STATUTORY
DEFINITION OR IN COMMON UNDERSTANDING.  P. 383. 

2.  THE PRESENT BANKRUPTCY PROCEEDING BROUGHT BY PRIVATE SUITORS WAS
NOT ONE "WHEREIN THE UNITED STATES IS COMPLAINANT"; IT WAS NOT BROUGHT
UNDER THE ANTI-TRUST LAWS OF THE UNITED STATES; AND THE INTERVENTION OF
THE UNITED STATES DID NOT SO ALTER THE PROCEEDING AS TO MAKE IT A SUIT
IN EQUITY WITHIN THE MEANING OF SEC. 2 OF THE EXPEDITING ACT. 
CONSEQUENTLY AN APPEAL TO THIS COURT FROM AN ORDER OF THE DISTRICT
COURT REJECTING APPELLANT'S CLAIMS IS NOT AUTHORIZED BY THE EXPEDITING
ACT, AND THE APPEAL IS THEREFORE DISMISSED.  P. 383. 

3.  SINCE THE APPELLANT HAS TAKEN AN APPEAL ALSO TO THE CIRCUIT COURT
OF APPEALS, THIS COURT NEED NOT EXERCISE ITS SUPERVISORY POWER TO
VACATE THE JUDGMENT BELOW IN ORDER TO PERMIT A PROPER APPEAL TO BE
TAKEN.  P. 384. 

COLUMBIA GAS & ELECTRIC CORP. V. AMERICAN FUEL & POWER CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF KENTUCKY. 

APPEAL FROM AN ORDER OF THE DISTRICT COURT REJECTING APPELLANT'S
CLAIMS IN A BANKRUPTCY PROCEEDING IN WHICH THE UNITED STATES HAD
INTERVENED. 

PER CURIAM: 

THIS IS AN APPEAL FROM A JUDGMENT OF THE DISTRICT COURT DIRECTLY TO
THIS COURT, TAKEN UNDER SEC. 2 OF THE EXPEDITING ACT OF FEBRUARY 11,
1903, 32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29.  THE UNITED STATES,
AS AN INTERVENOR IN THE DISTRICT COURT AND APPELLEE HERE, HAS MOVED TO
DISMISS THE APPEAL AS UNAUTHORIZED BY THE EXPEDITING ACT. 

SEPARATE PROCEEDINGS WERE BROUGHT IN BANKRUPTCY IN THE DISTRICT COURT
UNDER CHAPTER X OF THE BANKRUPTCY ACT FOR THE REORGANIZATION OF THE
THREE APPELLEE DEBTORS, AMERICAN FUEL AND POWER COMPANY, AND TWO OF ITS
SUBSIDIARIES, INLAND GAS CORPORATION AND KENTUCKY FUEL GAS
CORPORATION.  APPELLANT COLUMBIA GAS & ELECTRIC CORPORATION FILED ITS
PROOFS OF CLAIM IN THE REORGANIZATION PROCEEDINGS AS THE OWNER AND
HOLDER OF STOCK, AND OF NOTES AND BONDS AND OPEN ACCOUNTS OF THE
DEBTORS. 

THE DISTRICT COURT, ON APPLICATION OF THE DEBTORS' TRUSTEES, ENTERED
AN ORDER IN THE BANKRUPTCY PROCEEDINGS APPROVING A PROPOSED COMPROMISE
SETTLEMENT OF ALL OF APPELLANT'S CLAIMS AGAINST THE DEBTORS.  ON APPEAL
BY CERTAIN CREDITORS THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT
REVERSED.  122 F.2D 223.  IT HELD THAT THE FACTS OF RECORD DISCLOSED
THAT APPELLANT COLUMBIA'S STOCK AND MONEY CLAIMS AGAINST THE DEBTORS
HAD BEEN ACQUIRED AND USED BY IT TO SECURE CONTROL OF THEM IN VIOLATION
OF THE SHERMAN AND CLAYTON ANTI-TRUST ACTS AND WERE CONSEQUENTLY NOT
PROVABLE OR ALLOWABLE CLAIMS IN A BANKRUPTCY REORGANIZATION.  IT
ACCORDINGLY REMANDED THE CAUSE TO THE DISTRICT COURT WITH INSTRUCTIONS
THAT ALL CLAIMS AGAINST THE DEBTOR, WHICH COLUMBIA HAD ACQUIRED IN
VIOLATION OF THE FEDERAL ANTI-TRUST LAWS, BE REJECTED.  BUT ITS OPINION
POINTED OUT THAT APPELLANT HAD NOT APPEARED IN THE PROCEEDING IN THE
DISTRICT COURT FOR THE APPROVAL OF THE PROPOSED COMPROMISE AND IT WAS
CONSEQUENTLY NOT BOUND BY THE APPELLATE COURT'S FINDINGS OF FACT IN
THAT PROCEEDING. 

AFTER THE REMAND THE DISTRICT COURT GRANTED THE APPLICATION OF THE
UNITED STATES TO BE ALLOWED TO INTERVENE IN THE BANKRUPTCY
PROCEEDINGS.  THE UNITED STATES' PETITION FOR INTERVENTION ASSERTED
THAT IT WAS CONCERNED IN ARRESTING ANY ACTION OF THE BANKRUPTCY COURT
WHICH MIGHT TEND TO DEFEAT OR CURTAIL THE RELIEF TO WHICH IT MIGHT BE
ENTITLED IN A PENDING EQUITY SUIT WHICH IT HAD BROUGHT AGAINST
APPELLANT IN THE DISTRICT COURT FOR DELAWARE.  THE PURPOSE OF THIS
LATTER SUIT WAS TO RESTRAIN APPELLANT FROM VIOLATIONS OF THE ANTI-TRUST
LAWS BY THE CONTROL OF THE DEBTORS THROUGH THE ACQUISITION AND HOLDING
OF THE SAME STOCK AND MONEY OBLIGATIONS, AS ARE THE SUBJECTS OF
APPELLANT'S CLAIMS IN THIS PROCEEDING. 

THE UNITED STATES, AS INTERVENOR, AND CERTAIN CREDITORS FILED
OBJECTIONS TO THE ALLOWANCE OF APPELLANT'S CLAIMS IN BANKRUPTCY.  THE
PROCEEDINGS ON THE CLAIMS WERE CONSOLIDATED FOR HEARING AND AFTER A
TRIAL IN WHICH APPELLANT PARTICIPATED, THE DISTRICT COURT FOUND THAT
APPELLANT HAD ACQUIRED AND USED THE SUBJECTS OF ITS CLAIMS IN THE
PROSECUTION OF A CONSPIRACY TO ACQUIRE CONTROL OF THE DEBTORS IN
VIOLATION OF THE ANTI-TRUST LAWS.  IT GAVE JUDGMENT REJECTING
APPELLANT'S CLAIMS AS NOT PROVABLE OR ALLOWABLE IN BANKRUPTCY.  FROM
THIS JUDGMENT APPELLANT HAS TAKEN THE PRESENT APPEAL TO THIS COURT
UNDER SEC. 2 OF THE EXPEDITING ACT.  IT HAS ALSO APPEALED TO THE COURT
OF APPEALS FOR THE SIXTH CIRCUIT. 

PROVIDES, "IN EVERY SUIT IN EQUITY BROUGHT IN ANY DISTRICT COURT OF THE
UNITED STATES UNDER SECTIONS 1-7 OR 15  FN1  OF THIS TITLE (PROVISIONS
OF THE SHERMAN AND CLAYTON ACTS) WHEREIN THE UNITED STATES IS
COMPLAINANT, AN APPEAL FROM THE FINAL DECREE OF THE DISTRICT COURT WILL
LIE ONLY TO THE SUPREME COURT.  ...  " ACCORDINGLY, TO BE APPEALABLE TO
THIS COURT UNDER THE PROVISIONS OF THIS SECTION, THE PRESENT PROCEEDING
MUST BE A "SUIT IN EQUITY" "BROUGHT" IN A DISTRICT COURT "WHEREIN THE
UNITED STATES IS COMPLAINANT." 

THE NATURE OF THE EQUITY SUIT, REFERRED TO IN SEC. 2 OF THE
EXPEDITING ACT, IS DEFINED AND RESTRICTED BY 15 U.S.C. SEC. 4, WHICH
AUTHORIZES THE UNITED STATES TO BRING EQUITY SUITS FOR ENFORCEMENT OF
THE SHERMAN ACT.  SECTION 4 INVESTS THE DISTRICT COURTS WITH
JURISDICTION TO "PREVENT AND RESTRAIN VIOLATIONS OF SECTIONS 1-7 AND 15
OF THIS TITLE," AND MAKES IT THE DUTY OF THE UNITED STATES ATTORNEYS IN
THEIR DISTRICTS UNDER DIRECTION OF THE ATTORNEY GENERAL "TO INSTITUTE
PROCEEDINGS IN EQUITY TO PREVENT AND RESTRAIN SUCH VIOLATIONS." 
BROUGHT UNDER THE DIRECTION OF THE ATTORNEY GENERAL TO "PREVENT AND
RESTRAIN VIOLATIONS" OF PROVISIONS OF THE CLAYTON ACT EMBODIED IN 15
U.S.C. SECS. 12, 13, 14-21, AND 22-27.  SUCH A SUIT BROUGHT UNDER SEC.
14 WAS HELD TO BE APPEALABLE DIRECTLY FROM THE DISTRICT COURT TO THIS
COURT IN INTERNATIONAL BUSINESS MACHINES CORP. V. UNITED STATES, 298
U.S. 131. 

BY 15 U.S.C. SEC. 28, DERIVED FROM SEC. 1 OF THE EXPEDITING ACT OF
1903, IT WAS PROVIDED THAT IN ANY SUIT IN EQUITY BROUGHT IN ANY
DISTRICT COURT OF THE UNITED STATES UNDER SECS. 1-7 OR SEC. 15 OF THAT
TITLE "WHEREIN THE UNITED STATES IS COMPLAINANT," THE ATTORNEY GENERAL
MAY FILE IN COURT A CERTIFICATE OF PUBLIC IMPORTANCE AND THAT THEREUPON
SUCH CASE SHALL BE GIVEN PRECEDENCE OVER OTHERS, SHALL BE IN EVERY WAY
EXPEDITED, AND SHALL BE ASSIGNED FOR HEARING BEFORE A COURT OF THREE
JUDGES SELECTED AS PROVIDED IN THE SECTION.  FN2 

THE PRESENT IS A BANKRUPTCY PROCEEDING, AND EVEN THOUGH A COURT OF
BANKRUPTCY POSSESSES AND MAY EXERCISE EQUITY POWERS IN THE DISPOSITION
OF SUITS IN BANKRUPTCY, SEE BANKRUPTCY ACT SEC. 2, 11 U.S.C. SEC. 11;
SECURITIES & EXCHANGE COMMISSION V. UNITED STATES REALTY CO., 310 U.S.
434, 455 AND CASES CITED, A BANKRUPTCY PROCEEDING IS NOT ITSELF A SUIT
IN EQUITY EITHER BY STATUTORY DEFINITION OR IN COMMON UNDERSTANDING. 
THIS BANKRUPTCY PROCEEDING IS NOT ONE "WHEREIN THE UNITED STATES IS
COMPLAINANT," NOR IS IT BROUGHT UNDER THE ANTI-TRUST LAWS OF THE UNITED
STATES AND WE CANNOT SAY THAT THE INTERVENTION OF THE UNITED STATES IN
THIS PROCEEDING HAS SO ALTERED IT AS TO MAKE IT A SUIT IN EQUITY WITHIN
THE MEANING OF SEC. 2 OF THE EXPEDITING ACT. 

BY ITS PETITION AND INTERVENTION THE UNITED STATES HAS ALIGNED ITSELF
WITH THE DEBTORS' TRUSTEES, WHO ARE ASKING ONLY TO HAVE APPELLANT'S
CLAIMS REJECTED.  THE UNITED STATES LIKEWISE, BY ITS PETITION IN
INTERVENTION, ASKED THAT THE DISTRICT COURT ADJUDGE THAT APPELLANT'S
CLAIMS AGAINST THE DEBTORS BE REJECTED AND THAT APPELLANT TAKE NOTHING
BY THEM.  AS AN INTERVENOR THE UNITED STATES WAS LIMITED TO THE FIELD
OF LITIGATION OPEN TO THE ORIGINAL PARTIES.  CHANDLER & PRICE CO. V.
BRANDTJEN, INC., 296 U.S. 53, 57-60 AND CASES CITED; VINSON V.
WASHINGTON GAS LIGHT CO., 321 U.S. 489.  THE POSITION OF THE TRUSTEES
IN THE PROCEEDING FOR ALLOWANCE OF APPELLANT'S CLAIMS, CONDUCTED IN
CONFORMITY TO THE MANDATE OF THE CIRCUIT COURT OF APPEALS, WAS NOT THAT
OF COMPLAINANTS IN AN EQUITY SUIT.  THE TRUSTEES DID NOT SEEK IN THAT
PROCEEDING, NOR WERE THEY AUTHORIZED TO SEEK, EQUITABLE RELIEF FOR THE
PREVENTION OF FUTURE VIOLATIONS.  THEY WERE RATHER IN THE POSITION OF
DEFENDANTS RESISTING THE CLAIMS OF APPELLANT ON THE GROUND THAT ITS
CLAIMS WERE TAINTED WITH ILLEGALITY BECAUSE OF ITS PAST CONDUCT IN
ACQUIRING THEM.  NO MORE THAN THE TRUSTEES, COULD THE UNITED STATES BE
SAID TO BE A COMPLAINANT IN A SUIT IN EQUITY, SUCH AS IS DEFINED BY 15
U.S.C. SEC. 4, "TO PREVENT AND RESTRAIN VIOLATIONS" OF THE ANTI-TRUST
LAWS. 

IT IS OF SOME SIGNIFICANCE ALSO THAT THE SUITS IN EQUITY REFERRED TO
BY SEC. 2 OF THE EXPEDITING ACT ARE THE SUITS WHICH UNDER 15 U.S.C.
SEC. 28 ARE REQUIRED, ON CERTIFICATION OF THE ATTORNEY GENERAL, TO BE
EXPEDITED IN THE DISTRICT COURT AND TO BE TRIED THERE BY A COURT OF
THREE JUDGES.  BUT WE FIND NO INTIMATION IN SEC. 28 THAT THERE IS
AUTHORITY FOR CONVENING A DISTRICT COURT OF THREE JUDGES TO SIT AS A
BANKRUPTCY COURT FOR THE TRIAL OF AN ISSUE IN BANKRUPTCY BECAUSE IT
INVOLVES THE DETERMINATION OF QUESTIONS ARISING UNDER THE ANTI-TRUST
LAWS, AND WE THINK THAT THE UNITED STATES AS INTERVENOR IN A BANKRUPTCY
PROCEEDING LIMITED TO THE ALLOWANCE OF CLAIMS OR THEIR REJECTION, IF
FOUND TO HAVE BEEN ACQUIRED IN VIOLATION OF THE ANTI-TRUST LAWS, COULD
NOT INVOKE THE PROCEDURE FOR TRIAL OF THAT ISSUE BY A COURT OF THREE
JUDGES. 

WE CONCLUDE THAT THE ORDER IN INTERVENTION AUTHORIZED THE GOVERNMENT
TO URGE THE REJECTION OF APPELLANT'S CLAIMS IN THE BANKRUPTCY
PROCEEDING; THAT IN SO DOING IT WAS NOT ACTING AS A COMPLAINANT IN AN
EQUITY SUIT WITHIN THE MEANING OF SEC. 2 OF THE EXPEDITING ACT, AND
CONSEQUENTLY NO APPEAL LIES TO THIS COURT FROM THE ORDER OF THE
DISTRICT COURT REJECTING APPELLANT'S CLAIMS.  THE APPEAL WILL THEREFORE
BE DISMISSED FOR WANT OF JURISDICTION OF THIS COURT TO ENTERTAIN IT.
SINCE APPELLANT HAS ALSO TAKEN AN APPEAL TO THE CIRCUIT COURT OF
APPEALS, WE NEED NOT EXERCISE OUR SUPERVISORY POWER TO VACATE THE
JUDGMENT BELOW, IN ORDER TO PERMIT A PROPER APPEAL TO BE TAKEN. 
WILENTZ V. SOVEREIGN CAMP, 306 U.S. 573, 582; CF. GULLY V. INTERSTATE
NATURAL GAS CO., 292 U.S. 16; OKLAHOMA GAS CO. V. OKLAHOMA PACKING CO.,
292 U.S. 386, 392; JAMESON & CO. V. MORGENTHAU, 307 U.S. 171, 174;
PHILLIPS V. UNITED STATES, 312 U.S. 246, 254.  DISMISSED. 

FN1  SECTION 2 OF THE EXPEDITING ACT, AS ENACTED IN 1903, 32 STAT.
823, REFERRED MERELY TO SUITS IN EQUITY "UNDER ANY OF SAID ACTS," THE
"SAID ACTS" BEING THOSE REFERRED TO IN SEC. 1 OF THE ACT, I.E., THE
SHERMAN ACT, THE INTERSTATE COMMERCE ACT, AND "ANY OTHER ACTS HAVING A
LIKE PURPOSE THAT HEREAFTER MAY BE ENACTED."  THE COMPILERS OF THE
U.S.C.  IN PLACE OF "ANY OF SAID ACTS," REFER ONLY TO SECS. 1-7 AND 15
OF TITLE 15 OF THE CODE.  IT IS NOT APPARENT WHY SEC. 15 IS INCLUDED,
SINCE IT PROVIDES FOR THE RECOVERY OF TREBLE DAMAGES FOR VIOLATION OF
THE ANTI-TRUST LAWS, AND SINCE THE UNITED STATES IS NOT AUTHORIZED BY
THE SECTION TO MAINTAIN SUCH A SUIT.  SEE UNITED STATES V. COOPER
CORP., 312 U.S. 600.  IT IS PROBABLE THAT THE COMPILERS OF THE CODE
INTENDED TO REFER TO 15 U.S.C. SEC. 25, WHICH IS SEC. 15 OF THE CLAYTON
ACT AND WHICH IS DISCUSSED IN THE TEXT OF THIS OPINION. 

FN2  BY ACT OF APRIL 6, 1942, SEC. 1, 56 STAT. 198, THIS SECTION WAS
AMENDED SO AS TO INCLUDE "ANY CIVIL ACTION" BROUGHT IN A DISTRICT COURT
UNDER THE ANTI-TRUST LAWS IN WHICH THE UNITED STATES "IS PLAINTIFF." 
CONGRESS, INSOFAR AS IT MAY HAVE EXTENDED THE PROCEDURE FOR A TRIAL BY
A DISTRICT COURT OF THREE JUDGES TO PROCEEDINGS OTHER THAN SUITS IN
EQUITY, HAS NEVERTHELESS LEFT UNAMENDED SEC. 2 OF THE EXPEDITING ACT,
WHICH RESTRICTED DIRECT APPEALS TO THE SUPREME COURT TO SUITS IN EQUITY
WHEREIN THE UNITED STATES IS COMPLAINANT. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :















UNITED STATES V. SAYLOR, 322 U.S. 385 


ARGUED APRIL 28, 1944.  - DECIDED MAY 22, 1944.  - REVERSED. 


INJURE, OPPRESS, THREATEN, OR INTIMIDATE ANY CITIZEN IN THE FREE
EXERCISE OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES," EMBRACES THE RIGHT OF A
VOTER IN A CONGRESSIONAL ELECTION TO HAVE HIS VOTE HONESTLY COUNTED,
AND IS VIOLATED BY A CONSPIRACY OF ELECTION OFFICIALS TO STUFF A BALLOT
BOX IN SUCH AN ELECTION.  P. 389. 

UNITED STATES V. SAYLOR ET AL. 

NO. 716.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
EASTERN DISTRICT OF KENTUCKY* . 

*TOGETHER WITH NO. 717, UNITED STATES V. POER ET AL., ALSO ON APPEAL
FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT
OF KENTUCKY. 

APPEALS UNDER THE CRIMINAL APPEALS ACT FROM JUDGMENTS IN TWO CASES
SUSTAINING DEMURRERS TO INDICTMENTS FOR VIOLATION OF SEC. 19 OF THE
CRIMINAL CODE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE CASES COME HERE UNDER THE CRIMINAL APPEALS ACT.  THE DISTRICT
COURT SUSTAINED DEMURRERS TO INDICTMENTS FOR CONSPIRACIES FORBIDDEN BY
SEC. 19 OF THE CRIMINAL CODE.  FN1  THE SECTION PROVIDES:  "IF TWO OR
MORE PERSONS CONSPIRE TO INJURE, OPPRESS, THREATEN, OR INTIMIDATE ANY
CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT OR PRIVILEGE
SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED STATES,  ...
" THEY SHALL BE PUNISHED. 

AS THE CASES PRESENT IDENTICAL QUESTIONS IT WILL SUFFICE TO STATE NO.
716.  THE INDICTMENT CHARGED THAT A GENERAL ELECTION WAS HELD NOVEMBER
3, 1942, IN HARLAN COUNTY, KENTUCKY, FOR THE PURPOSE OF ELECTING A
SENATOR OF THE UNITED STATES, AT WHICH ELECTION THE DEFENDANTS SERVED
AS THE DULY QUALIFIED OFFICERS OF ELECTION; THAT THEY CONSPIRED TO
INJURE AND OPPRESS DIVERS CITIZENS OF THE UNITED STATES WHO WERE
LEGALLY ENTITLED TO VOTE AT THE POLLING PLACES WHERE THE DEFENDANTS
OFFICIATED, IN THE FREE EXERCISE AND ENJOYMENT OF THE RIGHTS AND
PRIVILEGES GUARANTEED TO THE CITIZENS BY THE CONSTITUTION AND LAWS OF
THE UNITED STATES, NAMELY, THE RIGHT AND PRIVILEGE TO EXPRESS BY THEIR
VOTES THEIR CHOICE OF A CANDIDATE FOR SENATOR AND THEIR RIGHT TO HAVE
THEIR EXPRESSIONS OF CHOICE GIVEN FULL VALUE AND EFFECT BY NOT HAVING
THEIR VOTES IMPAIRED, LESSENED, DIMINISHED, DILUTED AND DESTROYED BY
FICTITIOUS BALLOTS FRAUDULENTLY CAST AND COUNTED, RECORDED, RETURNED,
AND CERTIFIED.  THE INDICTMENT CHARGED THAT THE DEFENDANTS, PURSUANT TO
THEIR PLAN, TORE FROM THE OFFICIAL BALLOT BOOK AND STUB BOOK FURNISHED
THEM, BLANK UNVOTED BALLOTS AND MARKED, FORGED, AND VOTED THE SAME FOR
THE CANDIDATE OF A GIVEN PARTY, OPPOSING THE CANDIDATE FOR WHOM THE
INJURED VOTERS HAD VOTED, IN ORDER TO DEPRIVE THE LATTER OF THEIR
RIGHTS TO HAVE THEIR VOTES CAST, COUNTED, CERTIFIED AND RECORDED AND
GIVEN FULL VALUE AND EFFECT; THAT THE DEFENDANTS INSERTED THE FALSE
BALLOTS THEY HAD SO PREPARED INTO THE BALLOT BOX, AND RETURNED THEM,
TOGETHER WITH THE OTHER BALLOTS LAWFULLY CAST, SO AS TO CREATE A FALSE
AND FICTITIOUS RETURN RESPECTING THE VOTES LAWFULLY CAST. 

THE APPELLEES DEMURRED TO THE INDICTMENT, AS FAILING TO STATE FACTS
SUFFICIENT TO CONSTITUTE A CRIME AGAINST THE UNITED STATES.  THE
DEMURRER ATTACKED THE INDICTMENT ON OTHER GROUNDS RAISING QUESTIONS
WHICH, IF DECIDED, WOULD NOT BE REVIEWABLE HERE UNDER THE CRIMINAL
APPEALS ACT.  THE DISTRICT COURT DECIDED ONLY THAT THE INDICTMENT
CHARGED NO OFFENSE AGAINST THE LAWS OF THE UNITED STATES.  THIS RULING
PRESENTS THE QUESTION FOR DECISION. 

THE APPELLEES DO NOT DENY THE POWER OF CONGRESS TO PUNISH THE
CONSPIRACY DESCRIBED IN THE INDICTMENT.  IN THE LIGHT OF OUR DECISIONS,
THEY COULD NOT WELL ADVANCE SUCH A CONTENTION.  FN2 THE INQUIRY IS
WHETHER THE PROVISION OF SEC. 19 EMBRACES A CONSPIRACY BY ELECTION
OFFICERS TO STUFF A BALLOT BOX IN AN ELECTION AT WHICH A MEMBER OF THE
CONGRESS OF THE UNITED STATES IS TO BE ELECTED. 

IN UNITED STATES V. MOSLEY, 238 U.S. 383, THIS COURT REVERSED A
JUDGMENT SUSTAINING A DEMURRER TO AN INDICTMENT WHICH CHARGED A
CONSPIRACY OF ELECTION OFFICERS TO RENDER FALSE RETURNS BY DISREGARDING
CERTAIN PRECINCT RETURNS AND THUS FALSIFYING THE COUNT OF THE VOTE
CAST.  AFTER STATING THAT SEC. 19 IS CONSTITUTIONAL AND VALIDLY EXTENDS
"SOME PROTECTION AT LEAST TO THE RIGHT TO VOTE FOR MEMBERS OF
CONGRESS," THE COURT ADDED:  "WE REGARD IT AS EQUALLY UNQUESTIONABLE
THAT THE RIGHT TO HAVE ONE'S VOTE COUNTED IS AS OPEN TO PROTECTION BY
CONGRESS AS THE RIGHT TO PUT A BALLOT IN A BOX."  THE COURT THEN TRACED
THE HISTORY OF SEC. 19 FROM ITS ORIGIN AS ONE SECTION OF THE
ENFORCEMENT ACT OF MAY 31, 1870,  FN3  WHICH CONTAINED OTHER SECTIONS
MORE SPECIFICALLY AIMED AT ELECTION FRAUDS, AND THE SURVIVAL OF SEC. 19
AS A STATUTE OF THE UNITED STATES NOTWITHSTANDING THE REPEAL OF THOSE
OTHER SECTIONS.  THE CONCLUSION WAS THAT SEC. 19 PROTECTED PERSONAL
RIGHTS OF A CITIZEN INCLUDING THE RIGHT TO CAST HIS BALLOT, AND HELD
THAT TO REFUSE TO COUNT AND RETURN THE VOTE AS CAST WAS AS MUCH AN
INFRINGEMENT OF THAT PERSONAL RIGHT AS TO EXCLUDE THE VOTER FROM THE
POLLING PLACE.  THE CASE AFFIRMS THAT THE ELECTOR'S RIGHT INTENDED TO
BE PROTECTED IS NOT ONLY THAT TO CAST HIS BALLOT BUT THAT TO HAVE IT
HONESTLY COUNTED. 

THE DECISION WAS NOT REACHED WITHOUT A STRONG DISSENT, WHICH
EMPHASIZED THE PROBABILITY THAT CONGRESS DID NOT INTEND TO COVER BY
SEC. 6 OF THE ACT (NOW SEC. 19) THE RIGHT TO CAST A BALLOT AND TO HAVE
IT COUNTED, BUT TO DEAL WITH THOSE RIGHTS IN OTHER SECTIONS OF THE
ACT.  AND IT WAS THOUGHT THIS VIEW WAS STRENGTHENED BY THE REPEAL,
FEBRUARY 8, 1894,  FN4  OF THE SECTIONS WHICH DEALT WITH BRIBERY AND
OTHER ELECTION FRAUDS, INCLUDING SEC. 4, WHICH, TO SOME EXTENT,
OVERLAPPED SEC. 6, IF THE LATTER WERE CONSTRUED TO COMPREHEND THE RIGHT
TO CAST A BALLOT AND TO HAVE IT COUNTED.  NOTWITHSTANDING THAT DISSENT,
THE MOSLEY CASE HAS STOOD AS AUTHORITY TO THE PRESENT TIME.  FN5 

THE COURT BELOW THOUGHT THE PRESENT CASES CONTROLLED BY UNITED STATES
V. BATHGATE, 246 U.S. 220.  THAT CASE INVOLVED AN INDICTMENT CHARGING
PERSONS WITH CONSPIRING TO DEPRIVE A CANDIDATE FOR OFFICE OF RIGHTS
SECURED TO HIM BY THE CONSTITUTION AND LAWS OF THE UNITED STATES, IN
VIOLATION OF SEC. 19, AND TO DEPRIVE OTHER VOTERS OF THEIR RIGHTS, BY
THE BRIBERY OF VOTERS WHO PARTICIPATED IN AN ELECTION AT WHICH MEMBERS
OF CONGRESS WERE CANDIDATES.  THIS COURT AFFIRMED A DECISION OF THE
DISTRICT COURT SUSTAINING A DEMURRER TO THE INDICTMENT, AND
DISTINGUISHED THE MOSLEY CASE ON SEVERAL GROUNDS:  FIRST, THAT, IN THE
ENFORCEMENT ACT, BRIBERY OF VOTERS HAD BEEN SPECIFICALLY MADE A
CRIMINAL OFFENSE BUT THE SECTION SO PROVIDING HAD BEEN REPEALED;
SECONDLY, THAT THE GROUND ON WHICH THE MOSLEY CASE WENT WAS THAT THE
CONSPIRACY THERE WAS DIRECTED AT THE PERSONAL RIGHT OF THE ELECTOR TO
CAST HIS OWN VOTE AND TO HAVE IT HONESTLY COUNTED, A RIGHT NOT INVOLVED
IN THE BATHGATE CASE. 

IF THE VOTERS' RIGHTS PROTECTED BY SEC. 19 ARE THOSE DEFINED BY THE
MOSLEY CASE, THE FRUSTRATION CHARGED TO HAVE BEEN INTENDED BY THE
DEFENDANTS IN THE PRESENT CASES VIOLATES THEM.  FOR ELECTION OFFICERS
KNOWINGLY TO PREPARE FALSE BALLOTS, PLACE THEM IN THE BOX, AND RETURN
THEM, IS CERTAINLY TO PREVENT AN HONEST COUNT BY THE RETURN BOARD OF
THE VOTES LAWFULLY CAST.  THE MATHEMATICAL RESULT MAY NOT BE THE SAME
AS WOULD ENSUE THROWING OUT OR FRUSTRATING THE COUNT OF VOTES LAWFULLY
CAST.  BUT THE ACTION PURSUANT TO THE CONSPIRACY HERE CHARGED
CONSTITUTES THE RENDERING OF A RETURN WHICH, TO SOME EXTENT, FALSIFIES
THE COUNT OF VOTES LEGALLY CAST.  WE ARE UNABLE TO DISTINGUISH A
CONSPIRACY SO TO ACT FROM THAT WHICH WAS HELD A VIOLATION OF SEC. 19 IN
THE MOSLEY CASE. 

IT IS URGED THAT ANY ATTEMPTED DISTINCTION BETWEEN THE CONDUCT
DESCRIBED IN THE BATHGATE CASE AND THAT REFERRED TO IN THE MOSLEY CASE
IS ILLOGICAL AND INSUBSTANTIAL; THAT BRIBERY OF VOTERS AS BADLY
DISTORTS THE RESULT OF AN ELECTION AND AS EFFECTIVELY DENIES A FREE AND
FAIR CHOICE BY THE VOTERS AS DOES BALLOT BOX STUFFING OR REFUSAL TO
RETURN OR COUNT THE BALLOTS.  MUCH IS TO BE SAID FOR THIS VIEW.  THE
LEGISLATIVE HISTORY DOES NOT CLEARLY DISCLOSE THE CONGRESSIONAL PURPOSE
IN THE REPEAL OF THE OTHER SECTIONS OF THE ENFORCEMENT ACT, WHILE
LEAVING SEC. 6(NOW SEC. 19) IN FORCE.  SECTION 19 CAN HARDLY HAVE BEEN
INADVERTENTLY LEFT ON THE STATUTE BOOKS.  PERHAPS CONGRESS THOUGHT IT
HAD AN APPLICATION OTHER THAN THAT GIVEN IT BY THIS COURT IN THE MOSLEY
CASE.  ON THE OTHER HAND, CONGRESS MAY HAVE INTENDED THE RESULT THIS
COURT REACHED IN THE MOSLEY DECISION.  WE THINK IT UNPROFITABLE TO
SPECULATE UPON THE MATTER FOR CONGRESS HAS NOT SPOKEN SINCE THE
DECISIONS IN QUESTION WERE ANNOUNCED, AND THE DISTINCTION TAKEN BY
THOSE DECISIONS HAS STOOD FOR OVER A QUARTER OF A CENTURY.  OBSERVANCE
OF THAT DISTINCTION PLACES THE INSTANT CASE WITHIN THE RULING IN THE
MOSLEY CASE AND OUTSIDE THAT IN THE BATHGATE CASE. 

OUR CONCLUSION IS CONTRARY TO THAT OF THE COURT BELOW AND REQUIRES
THAT THE JUDGMENTS BE REVERSED.  REVERSED. 

FN1  18 U.S.C. SEC. 51. 

FN2  EX PARTE YARBROUGH, 110 U.S. 651, 657, 658, 661, 663; UNITED
STATES V. CLASSIC, 313 U.S. 299, 314, 315. 

FN3  C. 114, 16 STAT. 140, AS AMENDED BY C. 99, 16 STAT. 433. 

FN4  C. 25, 28 STAT. 36. 

FN5  UNITED STATES V. GRADWELL, 243 U.S. 476; IN RE ROBERTS, 244 U.S.
650; HAGUE V. C.I.O., 307 U.S. 496, 527; UNITED STATES V. CLASSIC,
SUPRA, 321. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE REED
CONCUR, DISSENTING: 

THE QUESTION IS NOT WHETHER STUFFING OF THE BALLOT BOX SHOULD BE
PUNISHED.  KENTUCKY HAS MADE THAT REPREHENSIBLE PRACTICE A CRIME.  SEE
KY. REV. STAT. 1942, SEC. 124.220; COMMONWEALTH V. ANDERSON, 151 KY.
537, 152 S.W. 552; TACKETT V. COMMONWEALTH, 285 KY. 83, 146 S.W.2D
937.  CF. KY. REV. STAT. 1942, SEC. 124.180(8).  AND IT IS A CRIME
UNDER KENTUCKY LAW WHETHER IT OCCURS IN AN ELECTION FOR STATE OFFICIALS
OR FOR UNITED STATES SENATOR.  ID., SEC. 124.280(2).  THE QUESTION HERE
IS WHETHER THE GENERAL LANGUAGE OF SEC. 19 OF THE CRIMINAL CODE SHOULD
BE CONSTRUED TO SUPERIMPOSE A FEDERAL CRIME ON THIS STATE CRIME. 

UNDER SEC. 19 OF THE ENFORCEMENT ACT OF MAY 31, 1870(16 STAT. 144)
THE STUFFING OF THIS BALLOT BOX WOULD HAVE BEEN A FEDERAL OFFENSE.  FN1
THAT PROVISION WAS A PART OF THE COMPREHENSIVE "RECONSTRUCTION"
LEGISLATION PASSED AFTER THE CIVIL WAR.  IT WAS REPEALED BY THE ACT OF
FEBRUARY 8, 1894, 28 STAT. 36 - AN ACT WHICH WAS DESIGNED TO RESTORE
CONTROL OF ELECTION FRAUDS TO THE STATES.  THE COMMITTEE REPORT (H.
REP. NO. 18, 53D CONG., 1ST SESS., P. 7) WHICH SPONSORED THE REPEAL
STATED: 

"LET EVERY TRACE OF THE RECONSTRUCTION MEASURES BE WIPED FROM THE
STATUTE BOOKS; LET THE STATES OF THIS GREAT UNION UNDERSTAND THAT THE
ELECTIONS ARE IN THEIR OWN HANDS, AND IF THERE BE FRAUD, COERCION, OR
FORCE USED THEY WILL BE THE FIRST TO FEEL IT.  RESPONDING TO A
UNIVERSAL SENTIMENT THROUGHOUT THE COUNTRY FOR GREATER PURITY IN
ELECTIONS MANY OF OUR STATES HAVE ENACTED LAWS TO PROTECT THE VOTER AND
TO PURIFY THE BALLOT.  THESE, UNDER THE GUIDANCE OF STATE OFFICERS,
HAVE WORKED EFFICIENTLY, SATISFACTORILY, AND BENEFICENTLY; AND IF THESE
FEDERAL STATUTES ARE REPEALED THAT SENTIMENT WILL RECEIVE AN IMPETUS
WHICH, IF THE CAUSE STILL EXISTS, WILL CARRY SUCH ENACTMENTS IN EVERY
STATE IN THE UNION." 

THIS COURT NOW WRITES INTO THE LAW WHAT CONGRESS STRUCK OUT 50 YEARS
AGO.  THE COURT NOW RESTORES FEDERAL CONTROL IN A DOMAIN WHERE CONGRESS
DECIDED THE STATES SHOULD HAVE EXCLUSIVE JURISDICTION.  I THINK IF SUCH
AN INTRUSION ON HISTORIC STATES' RIGHTS IS TO BE MADE, IT SHOULD BE
DONE BY THE LEGISLATIVE BRANCH OF GOVERNMENT.  I CANNOT BELIEVE THAT
CONGRESS INTENDED TO PRESERVE BY THE GENERAL LANGUAGE OF SEC. 19 THE
SAME DETAILED FEDERAL CONTROLS OVER ELECTIONS WHICH WERE CONTAINED IN
THE MUCH DESPISED "RECONSTRUCTION" LEGISLATION. 

THE COURT, OF COURSE, DOES NOT GO QUITE THAT FAR.  IT RECOGNIZES THAT
BRIBERY OF VOTERS IS NOT A FEDERAL OFFENSE.  UNITED STATES V. BATHGATE,
246 U.S. 220.  BUT HE WHO BRIBES VOTERS AND PURCHASES THEIR VOTES
CORRUPTS THE ELECTORAL PROCESS AND DILUTES MY VOTE AS MUCH AS HE WHO
STUFFS THE BALLOT BOX.  IF ONE IS A FEDERAL CRIME UNDER SEC. 19, I FAIL
TO SEE WHY THE OTHER IS NOT ALSO. 

CONGRESS HAS AMPLE POWER TO LEGISLATE IN THIS FIELD AND TO PROTECT
THE ELECTION OF ITS MEMBERS FROM FRAUD AND CORRUPTION.  UNITED STATES
V. CLASSIC, 313 U.S. 299.  I WOULD LEAVE TO CONGRESS ANY EXTENSION OF
FEDERAL CONTROL OVER ELECTIONS.  I WOULD RESTRICT SEC. 19 TO THOSE
CASES WHERE A VOTER IS DEPRIVED OF HIS RIGHT TO CAST A BALLOT OR TO
HAVE HIS BALLOT COUNTED.  UNITED STATES V. MOSLEY, 238 U.S. 383.  THAT
IS THE "RIGHT OR PRIVILEGE" THE "FREE EXERCISE" OF WHICH IS PROTECTED
BY SEC. 19.  IF IT IS SAID THAT THAT DISTINCTION IS NOT A LOGICAL ONE,
MY ANSWER IS THAT IT IS NEVERTHELESS A PRACTICAL ONE.  ONCE WE GO
BEYOND THAT POINT, LOGIC WOULD REQUIRE US TO CONSTRUE SEC. 19 SO AS TO
MAKE FEDERAL OFFENSES OUT OF ALL FRAUDS WHICH CORRUPT THE ELECTORAL
PROCESS, DISTORT THE COUNT, OR DILUTE THE HONEST VOTE.  THE VAST
INTERESTS INVOLVED IN THAT PROPOSAL EMPHASIZE THE LEGISLATIVE QUALITY
OF AN EXPANSIVE CONSTRUCTION OF SEC. 19.  WE SHOULD LEAVE THAT
EXPANSION TO CONGRESS. 

THAT VIEW IS SUPPORTED BY ANOTHER CONSIDERATION.  THE DOUBLE JEOPARDY
PROVISION OF THE FIFTH AMENDMENT DOES NOT BAR A FEDERAL PROSECUTION
EVEN THOUGH A CONVICTION BASED ON THE SAME ACTS HAS BEEN OBTAINED UNDER
STATE LAW.  JEROME V. UNITED STATES, 318 U.S. 101, 105, AND CASES
CITED.  THEREFORE WHEN IT IS URGED THAT CONGRESS HAS CREATED OFFENSES
WHICH TRADITIONALLY HAVE BEEN LEFT FOR STATE ACTION AND WHICH DUPLICATE
STATE CRIMES, WE SHOULD BE RELUCTANT TO EXPAND THE DEFINED FEDERAL
OFFENSES "BEYOND THE CLEAR REQUIREMENTS OF THE TERMS OF THE STATUTE." 
ID.  I KNOW OF NO SITUATION WHERE THAT PRINCIPLE COULD BE MORE
APPROPRIATELY RECOGNIZED THAN IN THE FIELD OF THE ELECTIONS WHERE THERE
IS COMPREHENSIVE STATE REGULATION.    FN1  THAT SECTION PROVIDED: 

"THAT IF AT ANY ELECTION FOR REPRESENTATIVE OR DELEGATE IN THE
CONGRESS OF THE UNITED STATES ANY PERSON SHALL KNOWINGLY PERSONATE AND
VOTE, OR ATTEMPT TO VOTE, IN THE NAME OF ANY OTHER PERSON, WHETHER
LIVING, DEAD, OR FICTITIOUS; OR VOTE MORE THAN ONCE AT THE SAME
ELECTION FOR ANY CANDIDATE FOR THE SAME OFFICE; OR VOTE AT A PLACE
WHERE HE MAY NOT BE LAWFULLY ENTITLED TO VOTE; OR VOTE WITHOUT HAVING A
LAWFUL RIGHT TO VOTE; OR DO ANY UNLAWFUL ACT TO SECURE A RIGHT OR AN
OPPORTUNITY TO VOTE FOR HIMSELF OR ANY OTHER PERSON; OR BY FORCE,
THREAT, MENACE, INTIMIDATION, BRIBERY, REWARD, OR OFFER, OR PROMISE
THEREOF, OR OTHERWISE UNLAWFULLY PREVENT ANY QUALIFIED VOTER OF ANY
STATE OF THE UNITED STATES OF AMERICA, OR OF ANY TERRITORY THEREOF,
FROM FREELY EXERCISING THE RIGHT OF SUFFRAGE, OR BY ANY SUCH MEANS
INDUCE ANY VOTER TO REFUSE TO EXERCISE SUCH RIGHT; OR COMPEL OR INDUCE
BY ANY SUCH MEANS, OR OTHERWISE, ANY OFFICER OF AN ELECTION IN ANY SUCH
STATE OR TERRITORY TO RECEIVE A VOTE FROM A PERSON NOT LEGALLY
QUALIFIED OR ENTITLED TO VOTE; OR INTERFERE IN ANY MANNER WITH ANY
OFFICER OF SAID ELECTIONS IN THE DISCHARGE OF HIS DUTIES; OR BY ANY OF
SUCH MEANS, OR OTHER UNLAWFUL MEANS, INDUCE ANY OFFICER OF AN ELECTION,
OR OFFICER WHOSE DUTY IT IS TO ASCERTAIN, ANNOUNCE, OR DECLARE THE
RESULT OF ANY SUCH ELECTION, OR GIVE OR MAKE ANY CERTIFICATE, DOCUMENT,
OR EVIDENCE IN RELATION THERETO, TO VIOLATE OR REFUSE TO COMPLY WITH
HIS DUTY, OR ANY LAW REGULATING THE SAME; OR KNOWINGLY AND WILFULLY
RECEIVE THE VOTE OF ANY PERSON NOT ENTITLED TO VOTE, OR REFUSE TO
RECEIVE THE VOTE OF ANY PERSON ENTITLED TO VOTE; OR AID, COUNSEL,
PROCURE, OR ADVISE ANY SUCH VOTER, PERSON, OR OFFICER TO DO ANY ACT
HEREBY MADE A CRIME, OR TO OMIT TO DO ANY DUTY THE OMISSION OF WHICH IS
HEREBY MADE A CRIME, OR ATTEMPT TO DO SO, EVERY SUCH PERSON SHALL BE
DEEMED GUILTY OF A CRIME, AND SHALL FOR SUCH CRIME BE LIABLE TO
PROSECUTION IN ANY COURT OF THE UNITED STATES OF COMPETENT
JURISDICTION, AND, ON CONVICTION THEREOF, SHALL BE PUNISHED BY A FINE
NOT EXCEEDING FIVE HUNDRED DOLLARS, OR BY IMPRISONMENT FOR A TERM NOT
EXCEEDING THREE YEARS, OR BOTH, IN THE DISCRETION OF THE COURT, AND
SHALL PAY THE COSTS OF PROSECUTION." 
..END :











KEEFE V. CLARK, 322 U.S. 393 


NO. 634.  ARGUED APRIL 27, 28, 1944.  - DECIDED MAY 22, 1944.  - 306
MICH. 503, 11 N.W.2D 220, AFFIRMED. 


1.  WHERE THE CONTRACT IS BETWEEN A POLITICAL SUBDIVISION OF A STATE
AND PRIVATE INDIVIDUALS, THE OBLIGATION ALLEGED TO HAVE BEEN IMPAIRED
IN VIOLATION OF THE FEDERAL CONSTITUTION MUST BE CLEARLY AND
UNEQUIVOCALLY EXPRESSED.  P. 396. 

2.  THE FOREGOING RULE OF CONSTRUCTION APPLIES WITH SPECIAL FORCE IN
THE PRESENT CASE, SINCE THE INTERPRETATION OF THE CONTRACT URGED BY
APPELLANTS WOULD RESULT IN A DRASTIC LIMITATION OF THE POWER OF THE
STATE TO REMEDY A SITUATION OBVIOUSLY INIMICAL TO THE INTERESTS OF
MUNICIPAL CREDITORS AND THE GENERAL PUBLIC.  P. 397. 

3.  THE MICHIGAN STATUTE UPON WHICH THE OWNERS OF SPECIAL ASSESSMENT
DRAIN BONDS HERE RELY, DEALING WITH THE LEVY OF AN ADDITIONAL
ASSESSMENT IN THE EVENT THAT THE BONDS ARE NOT PAID IN FULL AT
MATURITY, DID NOT SECURE TO THE BOND OWNERS ANY RIGHT WHICH WAS
IMPAIRED BY LATER STATUTES PROVIDING FOR SALE BY THE STATE, FREE OF ALL
ENCUMBRANCES, OF LAND FOR UNPAID TAXES; AND THE LATER STATUTES DID NOT
IMPAIR THE OBLIGATION OF THEIR CONTRACTS IN VIOLATION OF THE FEDERAL
CONSTITUTION.  P. 397. 

KEEFE ET AL. V. CLARK, DRAIN COMMISSIONER OF OAKLAND COUNTY, ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

APPEAL FROM A JUDGMENT MODIFYING AND AFFIRMING A DECLARATORY JUDGMENT
WHICH, IN A SUIT BY SPECIAL ASSESSMENT BOND OWNERS AGAINST COUNTY
OFFICIALS, DETERMINED THE RIGHTS OF THE BOND OWNERS, APPELLANTS HERE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE APPELLANTS ARGUE THAT CERTAIN PROVISIONS OF TWO ACTS
PASSED BY THE MICHIGAN LEGISLATURE IN 1937 ARE VOID IN THAT, CONTRARY
TO ART. I, SEC. 10 OF THE UNITED STATES CONSTITUTION, THEY IMPAIR THE
OBLIGATION OF SPECIAL ASSESSMENT DRAIN BONDS ISSUED IN 1927, SOME OF
WHICH ARE OWNED BY APPELLANTS.  THE CASE IS HERE ON APPEAL FROM THE
SUPREME COURT OF MICHIGAN.  28 U.S.C. 344(A).  FN1 

SO FAR AS HERE RELEVANT, THE TWO ACTS  FN2  SAID TO BE
UNCONSTITUTIONAL PROVIDE THAT PARCELS OF LAND SUBJECT TO SPECIAL
ASSESSMENT FOR DRAIN PROJECTS MAY BE SOLD FOR UNPAID TAXES, AND ALSO
PROVIDE THAT THE PURCHASER AT SUCH A SALE SHALL BE GRANTED A TITLE FREE
OF ALL ENCUMBRANCES, INCLUDING ALL ASSESSMENTS FOR DRAIN PROJECTS
ALREADY CONSTRUCTED.  THE PROCEEDS OF EACH TAX SALE ARE APPLIED TOWARDS
PAYMENT OF THE UNPAID DRAIN ASSESSMENT ON THE PARTICULAR PARCEL OF
LAND, AS WELL AS TOWARDS PAYMENT OF OTHER DELINQUENT TAXES.  PURSUANT
TO THESE ACTS, THE STATE OF MICHIGAN HAS SOLD TAX DELINQUENT PROPERTIES
LOCATED IN THE DRAIN DISTRICT WHICH ISSUED APPELLANTS' BONDS.  THE
DEEDS OF SALE PURPORT TO RELEASE THE PROPERTIES FROM ALL ENCUMBRANCES,
INCLUDING ALL ASSESSMENTS ON ACCOUNT OF THE 1927 DRAIN PROJECT. 

APPELLANTS DO NOT CONTEND THAT THE CHALLENGED ACTS IMPAIR ANY TERM OF
THE CONTRACT PRINTED ON THE FACE OF THEIR DRAIN BONDS.  WHAT THEY
CONTEND IS THAT THE ACTS IMPAIR A RIGHT SECURED TO THEM BY A STATUTORY
PROVISION WHICH WAS THE LAW OF MICHIGAN AT THE TIME THEIR BONDS WERE
ISSUED AND WHICH, THEY SAY, BECAME A PART OF THE BOND CONTRACT.  SEE
VON HOFFMAN V. CITY OF QUINCY, 4 WALL.  535, 550.  THE STATUTORY
PROVISION UPON WHICH THEY RELY READS: 

"IF THERE IS NOT SUFFICIENT MONEY IN THE FUND IN A PARTICULAR DRAIN
AT THE TIME OF THE MATURITY OF THE BONDS LAST TO MATURE TO PAY ALL
OUTSTANDING BONDS WITH INTEREST,  ...  IT SHALL BE THE DUTY OF THE
COMMISSIONER TO AT ONCE LEVY AN ADDITIONAL ASSESSMENT AS HEREINBEFORE
PROVIDED IN SUCH AN AMOUNT AS WILL MAKE UP THE DEFICIENCY."  CHAPTER X,
SEC. 18, ACT 316, MICH. PUB. ACTS OF 1923, AS AMENDED BY ACT 331, MICH.
PUB. ACTS OF 1927.  APPELLANTS' ARGUMENT IS THAT THIS STATUTE HAS GIVEN
THEM AN INDEFEASIBLE RIGHT TO HAVE A DEFICIENCY ASSESSMENT LEVIED ON
EACH PRIVATELY OWNED PARCEL OF LAND IN THE DRAIN DISTRICT REGARDLESS OF
WHETHER A PARTICULAR PARCEL ALREADY HAS BEEN SOLD AT A TAX SALE AND THE
PROCEEDS APPLIED TOWARD PAYMENT OF THE DRAIN BONDS.  IN PRACTICAL
EFFECT, THEY ASSERT THAT BY THIS STATUTE LANDS SUBJECT TO ASSESSMENT
FOR THEIR DRAIN BONDS ARE SUBJECT TO BE SOLD NOT JUST ONCE, BUT TWICE,
FOR PAYMENT OF THE SINGLE BENEFIT WHICH THE LANDS RECEIVED FROM THE
ORIGINAL DRAIN PROJECT.  CONSEQUENTLY, THEIR ARGUMENT RUNS, THE
MICHIGAN LEGISLATURE WAS POWERLESS TO PROVIDE THAT PURCHASERS OF TAX
DELINQUENT PROPERTY IN THE DRAIN DISTRICT BE EXEMPT FROM A DEFICIENCY
DRAIN ASSESSMENT. 

THIS ARGUMENT THE SUPREME COURT OF MICHIGAN REFUSED TO ACCEPT. 
EMPHASIZING THE SERIOUS CONSEQUENCES OF SUCH A HOBBLING OF THE STATE'S
POWERS TO MEET PRESSING PROBLEMS, THE COURT POINTED OUT THAT THE POWER
OF THE STATE TO SELL TAX-DELINQUENT LANDS FREE OF THE BURDEN OF
ASSESSMENTS FOR COMPLETED DRAIN PROJECTS WAS ESSENTIAL NOT ONLY TO
PROTECT THE BONDHOLDERS THEMSELVES BUT TO PROTECT THE PUBLIC INTEREST. 
WITHOUT POWER IN THE STATE TO OFFER AN ATTRACTIVE TITLE TO PROSPECTIVE
PURCHASERS, THE COURT FOUND, MANY OF SUCH LANDS WOULD REMAIN TAX
DELINQUENT AND THEREBY BE RENDERED VALUELESS FOR ALL PUBLIC REVENUE
PURPOSES, INCLUDING DRAIN ASSESSMENTS.  THE COURT DECLINED TO READ INTO
THE STATUTE RELIED UPON BY APPELLANTS ANY PURPOSE TO PERMIT DRAIN
DISTRICTS TO SURRENDER THE STATE'S SOVEREIGN POWER TO PROVIDE FOR THE
SALE OF TAX-DELINQUENT PROPERTY FREE OF ENCUMBRANCES.  IT HELD THAT
UNDER THE MICHIGAN LAW IN EFFECT WHEN APPELLANTS' SPECIAL ASSESSMENT
DRAIN BONDS WERE ISSUED THE BONDHOLDERS'"MAXIMUM SECURITY" FOR PAYMENT
OF ASSESSMENTS AGAINST DRAIN DISTRICT LANDS WAS THE PARCELS OF LAND
THEMSELVES, AND THAT WHEN THE BONDHOLDERS RECEIVED THEIR FAIR SHARE OF
THE PROCEEDS DERIVED FROM THE TAX SALE OF ANY PARTICULAR PARCEL THEY
HAD RECEIVED EVERYTHING TO WHICH THEIR BOND CONTRACTS ENTITLED THEM. 
KEEFE V. OAKLAND COUNTY DRAIN COMM'R, 306 MICH. 503, 511-512, 11 N.W.2D
220. 

BEFORE WE CAN FIND IMPAIRMENT OF A CONTRACT WE MUST FIND AN
OBLIGATION OF THE CONTRACT WHICH HAS BEEN IMPAIRED.  SINCE THE CONTRACT
HERE RELIED UPON IS ONE BETWEEN A POLITICAL SUBDIVISION OF A STATE AND
PRIVATE INDIVIDUALS, SETTLED PRINCIPLES OF CONSTRUCTION REQUIRE THAT
THE OBLIGATION ALLEGED TO HAVE BEEN IMPAIRED BE CLEARLY AND
UNEQUIVOCALLY EXPRESSED.  THIS RULE OF CONSTRUCTION APPLIES WITH
SPECIAL FORCE IN THE CASE AT BAR, FOR THE INTERPRETATION OF THE BOND
CONTRACT URGED BY APPELLANTS WOULD RESULT IN A DRASTIC LIMITATION UPON
THE POWER OF MICHIGAN TO ENACT LEGISLATION DESIGNED TO REMEDY A
SITUATION OBVIOUSLY INIMICAL TO THE INTERESTS OF BOTH MUNICIPAL
CREDITORS AND THE GENERAL PUBLIC.  FN3  "THE CONTINUED EXISTENCE OF A
GOVERNMENT WOULD BE OF NO GREAT VALUE, IF, BY IMPLICATIONS AND
PRESUMPTIONS, IT WAS DISARMED OF THE POWERS NECESSARY TO ACCOMPLISH THE
ENDS OF ITS CREATION."  CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11 PET.
420, 548; AND SEE GILMAN V. SHEBOYGAN, 2 BLACK 510, 513; FISHER V. NEW
ORLEANS, 218 U.S. 438. 

WE DO NOT FIND IN THE PROVISION OF THE DRAIN STATUTE RELIED UPON BY
APPELLANTS A CLEAR AND UNEQUIVOCAL PURPOSE OF MICHIGAN TO PERMIT DRAIN
DISTRICTS TO BARGAIN AWAY THE STATE'S POWER TO SELL TAX-DELINQUENT
LANDS FREE OF ENCUMBRANCES.  LONG BEFORE THE DATE WHEN APPELLANTS'
BONDS WERE ISSUED, THE MICHIGAN SUPREME COURT HAD HELD THAT, "THE
GENERAL RULE IS THAT A SALE AND A CONVEYANCE (BY THE STATE) IN DUE FORM
FOR TAXES EXTINGUISHES ALL PRIOR LIENS, WHETHER FOR TAXES OR
OTHERWISE.  THIS RULE IS ONE OF NECESSITY, GROWING OUT OF THE
IMPERATIVE NATURE OF THE DEMAND OF THE GOVERNMENT FOR ITS REVENUES." 
AUDITOR GENERAL V. CLIFFORD, 143 MICH. 626, 630, 107 N.W. 287; AND SEE
MUNICIPAL INVESTORS ASSN. V. BIRMINGHAM, 298 MICH. 314, 325-326, 299
N.W. 90, AND CASES THERE CITED.  THE PROVISION OF THE DRAIN STATUTE
UPON WHICH APPELLANTS REST THEIR CASE DOES NOT EXPRESSLY PURPORT TO
ALTER THIS "RULE OF NECESSITY."  ON ITS FACE IT DEALS ONLY WITH THE
LEVY OF AN ADDITIONAL ASSESSMENT IN THE EVENT THAT DRAIN BONDS ARE NOT
PAID IN FULL AT MATURITY, AND DOES NOT ASSUME TO DEAL WITH THE MANNER
OF SELLING TAX-DELINQUENT PROPERTIES IN DRAIN DISTRICTS OR THE KIND OF
TITLE THAT CAN BE CONVEYED AT SUCH SALES.  "THE LANGUAGE FALLS FAR
SHORT OF SUBJECTING LOTS WHICH HAVE BEEN SOLD TO PAY TAX OR ASSESSMENT
LIENS TO AN ADDITIONAL ASSESSMENT FOR THE DEFICIT.  SUCH A CONSTRUCTION
WOULD DEFEAT THE REMEDY OF TAX SALES AS A MEANS OF REALIZING THE
ASSESSMENT LIEN."  MUNICIPAL INVESTORS ASSN. V. BIRMINGHAM, 316 U.S.
153, 159.  AFFIRMED. 

FN1  APPELLEES HAVE MOVED TO DISMISS THE APPEAL ON THE GROUNDS THAT A
FEDERAL QUESTION WAS NOT PROPERLY RAISED IN THE STATE COURTS.  THE
RECORD FAILS TO SUSTAIN THE MOTION AND IT IS DENIED.  SEE WHITNEY V.
CALIFORNIA, 274 U.S. 357, 360. 

FN2  ACT 114, MICH. PUB. ACTS OF 1937, AS AMENDED BY ACT 282, MICH.
PUB. ACTS OF 1939 AND ACT 234, MICH. PUB. ACTS OF 1941. 

ACT 155, MICH. PUB. ACTS OF 1937, AS AMENDED BY ACTS 29, 244, AND 329
OF MICH. PUB. ACTS OF 1939 AND ACT 363 OF MICH. PUB. ACTS OF 1941. 

FN3  THE MICHIGAN SUPREME COURT HAS DESCRIBED VIVIDLY THE INTIMATE
RELATION BETWEEN THE POWER OF THE STATE TO REMOVE ENCUMBRANCES FROM TAX
DELINQUENT LANDS AND THE WELFARE OF THE PUBLIC.  BAKER V. STATE LAND
OFFICE BOARD, 294 MICH. 587, 592-594, 293 N.W. 763.  LAND SPECULATION
RAN RIOT IN MICHIGAN IN THE 1920'S, BRINGING WITH IT CONSTRUCTION OF
SUBDIVISIONS, PAVING AND DRAINAGE PROJECTS, ETC.  INFLATED LAND VALUES
PRODUCED THEIR INEVITABLE CONSEQUENCES.  IN THE EARLY 1930'S A LARGE
PART OF MICHIGAN LANDS HAD A MARKET VALUE FAR LESS THAN THE UNPAID
PROPERTY AND IMPROVEMENT TAXES ACCUMULATED UPON THEM.  ATTEMPTING TO
REMEDY THE SITUATION, THE LEGISLATURE TRIED TAX COLLECTION MORATORIUMS,
AND FOR SIX YEARS NO TAX SALES WERE HELD, BUT STILL UNPAID TAXES
CONTINUED TO AMASS.  PROPERTY OWNERS ABANDONED THEIR HEAVILY ENCUMBERED
REAL ESTATE; THE STATE AND LOCAL GOVERNMENTS COULD GET NO REVENUE FROM
THE DELINQUENT PROPERTY; AND MUNICIPAL CREDITORS COULD GET NEITHER
PRINCIPAL NOR INTEREST.  ALL SUFFERED ALIKE.  FINALLY IN 1937, UPON THE
RECOMMENDATION OF LEGISLATIVE COMMITTEES AND PLANNING COMMISSIONS, ACTS
114 AND 155, SUPRA, NOTE 1, TOGETHER WITH ACT 325, WERE PASSED BY THE
LEGISLATURE IN AN ATTEMPT TO COLLECT UNPAID TAXES AND TO FREE PROPERTY
OF ITS ACCUMULATED TAX BURDEN. 

MR. JUSTICE ROBERTS CONCURS IN THE RESULT. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



STEUART & BRO. V. BOWLES, 322 U.S. 398 


NO. 793.  ARGUED MAY 2, 1944.  - DECIDED MAY 22, 1944.  - 140 F.2D 703,
AFFIRMED. 


THE POWER OF THE PRESIDENT UNDER SEC. 2(A)(2) OF TITLE III OF THE
SECOND WAR POWERS ACT TO "ALLOCATE" MATERIALS INCLUDES THE POWER TO
ISSUE SUSPENSION ORDERS AGAINST RETAILERS AND TO WITHHOLD RATIONED
MATERIALS FROM THEM WHERE IT IS ESTABLISHED THAT THEY HAVE ACQUIRED AND
DISTRIBUTED THE RATIONED MATERIALS IN VIOLATION OF THE RATION
REGULATIONS.  P. 403. 

L.P. STEUART & BRO., INC. V. BOWLES, PRICE ADMINISTRATOR, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 321 U.S. 761, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING THE COMPLAINT IN A SUIT TO ENJOIN THE ENFORCEMENT OF A
SUSPENSION ORDER ISSUED AGAINST THE COMPANY BY THE OFFICE OF PRICE
ADMINISTRATION PURSUANT TO POWERS DELEGATED BY THE PRESIDENT UNDER THE
SECOND WAR POWERS ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SEC. 2(A)(2) OF TITLE III OF THE SECOND WAR POWERS ACT (56 STAT. 178,
50 U.S.C. APP. (SUPP. III), SEC. 633) PROVIDES IN PART: 

"WHENEVER THE PRESIDENT IS SATISFIED THAT THE FULFILLMENT OF
REQUIREMENTS FOR THE DEFENSE OF THE UNITED STATES WILL RESULT IN A
SHORTAGE IN THE SUPPLY OF ANY MATERIAL OR OF ANY FACILITIES FOR DEFENSE
OR FOR PRIVATE ACCOUNT OR FOR EXPORT, THE PRESIDENT MAY ALLOCATE SUCH
MATERIAL OR FACILITIES IN SUCH MANNER, UPON SUCH CONDITIONS AND TO SUCH
EXTENT AS HE SHALL DEEM NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST
AND TO PROMOTE THE NATIONAL DEFENSE."  BY SEC. 2(A)(8) OF THE ACT THE
PRESIDENT IS GRANTED AUTHORITY TO EXERCISE THAT POWER "THROUGH SUCH
DEPARTMENT, AGENCY, OR OFFICER OF THE GOVERNMENT AS HE MAY DIRECT AND
IN CONFORMITY WITH ANY RULES OR REGULATIONS WHICH HE MAY PRESCRIBE." 
THAT AUTHORITY, SO FAR AS MATERIAL HERE, WAS DELEGATED TO THE OFFICE OF
PRICE ADMINISTRATION,  FN1  WHICH PROMULGATED RATION ORDER NO. 11,
EFFECTIVE OCTOBER 22, 1942, PROVIDING FOR THE RATIONING OF FUEL OIL. 
FN2  THAT ORDER RECITED THE NOW FAMILIAR FACTS CONCERNING THE THEN
CRITICAL AND ACUTE SHORTAGE OF FUEL OIL AND OTHER PETROLEUM PRODUCTS IN
THE EASTERN STATES DUE TO THE GREAT WAR ACTIVITY.  IT STATED THAT IT
WAS "ESSENTIAL TO GUARANTEE THE CONTINUED AVAILABILITY OF ADEQUATE
SUPPLIES OF FUEL OIL FOR MILITARY AND NAVAL USE AND FOR INDUSTRIAL AND
AGRICULTURAL OPERATIONS" AND THAT THE "REDUCTION OF DEMAND TO THE
AVAILABLE SUPPLY IS SOUGHT TO BE ACHIEVED LARGELY BY A CURTAILMENT OF
THE USE OF FUEL OIL FOR HEATING PREMISES AND FOR HOT WATER, VIRTUALLY
THE ONLY CLASSES OF USES WHICH CAN BE UNIFORMLY REDUCED WITHOUT
DIRECTLY IMPEDING THE WAR EFFORT."  FN3  THE ORDER INAUGURATED "A
SYSTEM OF RATIONING CONTROL" DEEMED NECESSARY IN ORDER "TO PROVIDE FOR
EQUITABLE DISTRIBUTION OF FUEL OIL IN THE AREAS OF SHORTAGE."  FN4
FUEL OIL RATIONS FOR HEAT AND FOR HOT WATER WERE PROVIDED.  MACHINERY
WAS ESTABLISHED FOR THE REGULATION OF THE FLOW OF FUEL OIL FROM
SUPPLIERS TO CONSUMERS.  ONLY A FEW OF THOSE REGULATIONS ARE RELEVANT
HERE.  TRANSFERS OF FUEL OIL TO CONSUMERS WERE ALLOWED ONLY IN EXCHANGE
FOR RATION COUPONS.  FN5  A DEALER OBTAINING FUEL OIL FROM HIS SUPPLIER
WAS GENERALLY REQUIRED TO SURRENDER RATION COUPONS WITHIN FIVE DAYS
AFTER THE TRANSFER.  FN6  DEALERS WERE REQUIRED, WITH EXCEPTIONS NOT
MATERIAL HERE, TO KEEP RECORDS OF SALES TO CONSUMERS SHOWING THEIR
NAMES AND ADDRESSES, THE DATE AND AMOUNT OF THE TRANSFER, AND THE
COUPONS DETACHED.  FN7  PROVISION WAS ALSO MADE FOR "SUSPENSION ORDERS"
AS FOLLOWS:  FN8  "ANY PERSON WHO VIOLATES RATION ORDER NO. 11 MAY, BY
ADMINISTRATIVE SUSPENSION ORDER, BE PROHIBITED FROM RECEIVING ANY
TRANSFERS OR DELIVERIES OF, OR SELLING OR USING OR OTHERWISE DISPOSING
OF, ANY FUEL OIL OR OTHER RATIONED PRODUCT OR FACILITY.  SUCH
SUSPENSION ORDER SHALL BE ISSUED FOR SUCH PERIOD AS IN THE JUDGMENT OF
THE ADMINISTRATOR, OR SUCH PERSON AS HE MAY DESIGNATE FOR SUCH PURPOSE,
IS NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST AND TO PROMOTE THE
NATIONAL SECURITY." 

ON DECEMBER 31, 1943, A SUSPENSION ORDER WAS ISSUED AGAINST
PETITIONER, A RETAIL DEALER IN FUEL OIL IN THE DISTRICT OF COLUMBIA. 
IT WAS FOUND THAT PETITIONER HAD OBTAINED LARGE QUANTITIES OF FUEL OIL
FROM ITS SUPPLIER WITHOUT SURRENDERING ANY RATION COUPONS.  IT WAS
FOUND THAT PETITIONER HAD DELIVERED MANY THOUSANDS OF GALLONS OF FUEL
OIL TO CONSUMERS WITHOUT RECEIVING RATION COUPONS IN EXCHANGE; FN9  AND
THAT IN SOME INSTANCES PETITIONER DELIVERED FUEL OIL TO CONSUMERS
WITHOUT RECEIPT OF VALID RATION COUPONS IN EXCHANGE.  FN10  PETITIONER
WAS ALSO FOUND TO HAVE FAILED TO KEEP THE REQUIRED RECORDS SHOWING ITS
TRANSFERS OF FUEL OIL TO CONSUMERS.  THE SUSPENSION ORDER PROHIBITED
PETITIONER FROM RECEIVING FUEL OIL FOR RESALE OR TRANSFER TO ANY
CONSUMER FOR THE PERIOD FROM JANUARY 15, 1944 TO DECEMBER 31, 1944, THE
DATE WHEN THE SECOND WAR POWERS ACT EXPIRES.  THE ORDER PROVIDED,
HOWEVER, THAT IF PETITIONER FURNISHED THE OFFICE OF PRICE
ADMINISTRATION WITH A LIST OF CONSUMERS TO WHOM IT HAD SOLD FUEL OIL
FROM OCTOBER 21, 1941, TO OCTOBER 21, 1942, AND IF IT SURRENDERED ALL
VOID RATION COUPONS IN ITS POSSESSION, IT MIGHT TRANSFER FUEL OIL TO
ANY CONSUMER TO WHOM IT HAD TRANSFERRED FUEL OIL DURING THE YEAR
SUBSEQUENT TO OCTOBER 21, 1941  FN11  AND RECEIVE FUEL OIL SUFFICIENT
FOR THAT PURPOSE.  THE ORDER FINALLY PROVIDED THAT IF THE PETROLEUM
ADMINISTRATOR FOR WAR  FN12  SHOULD CERTIFY THAT THE FUEL OIL NEEDS OF
THE DISTRICT OF COLUMBIA COULD NOT BE MET BY THE SUPPLIES AND THE
FACILITIES OF OTHER SUPPLIERS AND DEALERS IN THE AREA AND THAT IT WAS
THEREFORE ESSENTIAL TO THE WELFARE OF THE COMMUNITY THAT THE PROVISIONS
OF THE SUSPENSION ORDER BE MODIFIED, THE RESTRICTIONS MIGHT BE WHOLLY
OR PARTLY REMOVED.  FN13  THE SUSPENSION ORDER WAS ISSUED AFTER NOTICE
AND HEARINGS AS PROVIDED IN THE REGULATIONS WHICH GOVERN THE PROCEDURE
IN SUCH CASES.  FN14 

THE PRESENT SUIT WAS BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA TO ENJOIN THE ENFORCEMENT OF THE SUSPENSION ORDER.  A
TEMPORARY RESTRAINING ORDER WAS ISSUED.  RESPONDENTS MOVED FOR SUMMARY
JUDGMENT.  THAT MOTION WAS GRANTED AND THE COMPLAINT WAS DISMISSED.  ON
THE APPEAL THAT JUDGMENT WAS AFFIRMED.  140 F.2D 703.  THE CASE IS HERE
ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
IMPORTANCE OF THE PROBLEM IN THE ADMINISTRATION OF THE RATIONING
REGULATIONS. 

THE SOLE QUESTION PRESENTED BY THIS CASE IS WHETHER THE POWER OF THE
PRESIDENT UNDER SEC. 2(A)(2) OF TITLE III OF THE SECOND WAR POWERS ACT
TO "ALLOCATE" MATERIALS INCLUDES THE POWER TO ISSUE SUSPENSION ORDERS
AGAINST RETAILERS AND TO WITHHOLD RATIONED MATERIALS FROM THEM WHERE IT
IS ESTABLISHED THEY HAVE ACQUIRED AND DISTRIBUTED THE RATIONED
MATERIALS IN VIOLATION OF THE RATION REGULATIONS. 

WE STATE THE QUESTION THAT NARROWLY BECAUSE OF THE POSTURE OF THE
CASE AS IT REACHES US.  THE CONSTITUTIONAL AUTHORITY OF CONGRESS TO
AUTHORIZE AS A WAR EMERGENCY MEASURE THE ALLOCATION OR RATIONING OF
MATERIALS IS NOT CHALLENGED.  NO QUESTION OF DELEGATION OF AUTHORITY IS
PRESENT.  IT IS ASSUMED, ON PETITIONER'S CONCESSION, THAT THE PRESIDENT
HAS VALIDLY DELEGATED TO THE OFFICE OF PRICE ADMINISTRATION WHATEVER
AUTHORITY HE HAS UNDER SEC. 2(A)(2) OF TITLE III OF THE ACT.  AND NO
QUESTION IS RAISED, LIKE THOSE INVOLVED IN YAKUS V. UNITED STATES, 321
U.S. 414, AND BOWLES V. WILLINGHAM, 321 U.S. 503, CONCERNING THE
AUTHORITY OF CONGRESS TO DELEGATE TO THE PRESIDENT IN THIS WAY THE
POWER TO ALLOCATE MATERIALS.  NO CONTENTION IS MADE THAT PETITIONER WAS
DEPRIVED OF FUEL OIL WITHOUT A HEARING AND AN OPPORTUNITY TO DEFEND. 
NOR IS IT ARGUED THAT, ALTHOUGH THE POWER TO ISSUE SUSPENSION ORDERS
EXISTS, THAT POWER WAS ABUSED IN THIS INSTANCE, SO AS TO GIVE RISE TO
JUDICIAL REVIEW, AND THE LIMITS OF THE AUTHORITY EXCEEDED BY THE
SPECIFIC PROVISIONS OF THE ORDER WHICH IS BEFORE US.  AND FINALLY, NO
CHALLENGE IS MADE OF THE FINDINGS WHICH UNDERLIE THIS SUSPENSION
ORDER.  FN15 

THE ARGUMENT, RATHER, IS THAT THE AUTHORITY TO "ALLOCATE" MATERIALS
DOES NOT INCLUDE THE POWER TO ISSUE SUSPENSION ORDERS; AND THAT NO SUCH
POWER WILL BE IMPLIED SINCE SUSPENSION ORDERS ARE PENALTIES TO WHICH
PERSONS WILL NOT BE SUBJECTED UNLESS THE STATUTE PLAINLY IMPOSES THEM. 
SEE TIFFANY V. NATIONAL BANK, 18 WALL.  409, 410; KEPPEL V. TIFFIN
SAVINGS BANK, 197 U.S. 356, 362; WALLACE V. CUTTEN, 298 U.S. 229, 237. 
IN THAT CONNECTION IT IS POINTED OUT THAT CONGRESS PROVIDED CRIMINAL
AND CIVIL SANCTIONS FOR VIOLATIONS OF TITLE III OF THE ACT.  BY SEC.
2(A)(5) ANY PERSON WHO WILFULLY VIOLATES THOSE PROVISIONS OF THE ACT OR
ANY RULE, REGULATION OR ORDER PROMULGATED THEREUNDER IS GUILTY OF A
MISDEMEANOR AND SUBJECT TO FINE AND IMPRISONMENT.  BY SEC. 2(A)(6)
FEDERAL COURTS HAVE POWER, AMONG OTHERS, TO ENJOIN ANY VIOLATION OF
THOSE PROVISIONS OF THE ACT OR ANY RULE, REGULATION OR ORDER
THEREUNDER.  IT IS THEREFORE CONTENDED THAT WHEN VIOLATIONS OF
REGULATIONS UNDER THE ACT ARE USED AS THE BASIS FOR WITHHOLDING
RATIONED MATERIALS FROM PERSONS, SANCTIONS FOR LAW ENFORCEMENT ARE
CREATED BY ADMINISTRATIVE FIAT CONTRARY TO THE ACT IN QUESTION AND
CONTRARY TO CONSTITUTIONAL REQUIREMENTS. 

WE AGREE THAT IT IS FOR CONGRESS TO PRESCRIBE THE PENALTIES FOR THE
LAWS WHICH IT WRITES.  IT WOULD TRANSCEND BOTH THE JUDICIAL AND THE
ADMINISTRATIVE FUNCTION TO MAKE ADDITIONS TO THOSE WHICH CONGRESS HAS
PLACED BEHIND A STATUTE.  UNITED STATES V. TWO HUNDRED BARRELS OF
WHISKEY, 95 U.S. 571; CAMPBELL V. GALENO CHEMICAL CO., 281 U.S. 599;
WALLACE V. CUTTEN, SUPRA.  HENCE WE WOULD HAVE NO DIFFICULTY IN
AGREEING WITH PETITIONER'S CONTENTION IF THE ISSUE WERE WHETHER A
SUSPENSION ORDER COULD BE USED AS A MEANS OF PUNISHMENT OF AN
OFFENDER.  BUT THAT STATEMENT OF THE QUESTION IS A DISTORTION OF THE
ISSUE PRESENTED ON THIS RECORD. 

THE PROBLEM OF THE SCARCITY OF MATERIALS IS OFTEN ACUTE AND CRITICAL
IN A GREAT WAR EFFORT SUCH AS THE PRESENT ONE.  WHETHER THE DIFFICULTY
BE TRANSPORTATION OR PRODUCTION, THERE IS APT TO BE AN INSUFFICIENT
SUPPLY TO MEET ESSENTIAL CIVILIAN NEEDS AFTER MILITARY AND INDUSTRIAL
REQUIREMENTS HAVE BEEN SATISFIED.  THUS WITHOUT RATIONING, THE FUEL
TANKS OF A FEW WOULD BE FULL; THE FUEL TANKS OF MANY WOULD BE EMPTY. 
SOME LOCALITIES WOULD HAVE PLENTY; COMMUNITIES LESS FAVORABLY SITUATED
WOULD SUFFER.  ALLOCATION OR RATIONING IS DESIGNED TO ELIMINATE SUCH
INEQUALITIES AND TO TREAT ALL ALIKE WHO ARE SIMILARLY SITUATED.  THE
BURDENS ARE THUS SHARED EQUALLY AND LIMITED SUPPLIES ARE UTILIZED FOR
THE BENEFIT OF THE GREATEST NUMBER.  BUT MIDDLEMEN - WHOLESALERS AND
RETAILERS - BENT ON DEFYING THE RATIONING SYSTEM COULD RAISE HAVOC WITH
IT.  BY DISREGARDING QUOTAS PRESCRIBED FOR EACH HOUSEHOLDER AND BY
GIVING SOME MORE THAN THE ALLOTTED SHARE THEY WOULD DEFEAT THE
OBJECTIVES OF RATIONING AND DESTROY ANY PROGRAM OF ALLOCATION.  THESE
MIDDLEMEN ARE THE CHIEF IF NOT THE ONLY CONDUITS BETWEEN THE SOURCE OF
LIMITED SUPPLIES AND THE CONSUMERS.  FROM THE VIEWPOINT OF A RATIONING
SYSTEM A MIDDLEMAN WHO DISTRIBUTES THE PRODUCT IN VIOLATION AND
DISREGARD OF THE PRESCRIBED QUOTAS IS AN INEFFICIENT AND WASTEFUL
CONDUIT.  IF THE NEEDS OF CONSUMERS ARE TO BE MET AND THE CONSUMER
ALLOCATIONS ARE TO BE FILLED, PRUDENCE MIGHT WELL DICTATE THE AVOIDANCE
OR DISCARD OF SUCH INEFFICIENT AND UNRELIABLE MEANS OF DISTRIBUTION OF
A SCARCE AND VITAL COMMODITY.  CERTAINLY WE COULD NOT SAY THAT THE
PRESIDENT WOULD LACK THE POWER UNDER THIS ACT TO TAKE AWAY FROM A
WASTEFUL FACTORY AND ROUTE TO AN EFFICIENT ONE A PRECIOUS SUPPLY OF
MATERIAL NEEDED FOR THE MANUFACTURE OF ARTICLES OF WAR.  THAT POWER OF
ALLOCATION OR RATIONING MIGHT INDEED BE THE ONLY WAY OF GETTING THE
RIGHT EQUIPMENT TO OUR ARMED FORCES IN TIME.  FROM THE POINT OF VIEW OF
THE FACTORY OWNER FROM WHOM THE MATERIALS WERE DIVERTED THE ACTION
WOULD BE HARSH.  HE WOULD BE DEPRIVED OF AN EXPECTED PROFIT.  BUT IN
TIMES OF WAR THE NATIONAL INTEREST CANNOT WAIT ON INDIVIDUAL CLAIMS TO
PREFERENCE.  THE WAGING OF WAR AND THE CONTROL OF ITS ATTENDANT
ECONOMIC PROBLEMS ARE URGENT BUSINESS.  YET IF THE PRESIDENT HAS THE
POWER TO CHANNEL RAW MATERIALS INTO THE MOST EFFICIENT INDUSTRIAL UNITS
AND THUS SAVE SCARCE MATERIALS FROM WASTAGE IT IS DIFFICULT TO SEE WHY
THE SAME PRINCIPLE IS NOT APPLICABLE TO THE DISTRIBUTION OF FUEL OIL. 

IF PETITIONER ESTABLISHED THAT HE WAS ELIMINATED AS A DEALER OR THAT
HIS QUOTA WAS CUT DOWN FOR REASONS NOT RELEVANT TO ALLOCATION OR
EFFICIENT DISTRIBUTION OF FUEL OIL, QUITE DIFFERENT CONSIDERATIONS
WOULD BE PRESENTED.  BUT WE CAN MAKE NO SUCH ASSUMPTION HERE.  THE
SUSPENSION ORDER RESTS ON FINDINGS OF SERIOUS VIOLATIONS REPEATEDLY
MADE.  THESE VIOLATIONS WERE OBVIOUSLY GERMANE TO THE PROBLEM OF
ALLOCATION OF FUEL OIL.  FOR THEY INDICATED THAT A SCARCE AND VITAL
COMMODITY WAS BEING DISTRIBUTED IN AN INEFFICIENT, INEQUITABLE AND
WASTEFUL WAY.  THE CHARACTER OF THE VIOLATIONS THUS NEGATIVES THE
CHARGE THAT THE SUSPENSION ORDER WAS DESIGNED TO PUNISH PETITIONER
RATHER THAN TO PROTECT THE DISTRIBUTION SYSTEM AND THE INTERESTS OF
CONSERVATION.  MOREOVER, THERE IS THE FOLLOWING FINDING IN SUPPORT OF
THE LIMITATION ON THE NUMBER OF CUSTOMERS WHICH PETITIONER MAY
HEREAFTER SERVICE: 

"WE HAVE NO WAY OF KNOWING HOW MANY CUSTOMERS THE RESPONDENT
CORPORATION CAN SERVE WHILE AT THE SAME TIME FAITHFULLY OBSERVING THE
RATIONING REGULATIONS.  BUT WE DO KNOW FROM ITS CLEARLY ESTABLISHED
VIOLATIONS FROM THE VERY INCEPTION OF FUEL-OIL RATIONING THAT THE
NUMBER IT THEN SERVED APPROACHED THE UPPER LIMIT OF ITS CAPACITY SINCE
THE FACT IS CLEAR THAT IT DID NOT (WHETHER IT WOULD NOT OR COULD NOT)
THEREAFTER BOTH SERVICE THIS NUMBER AND SIMULTANEOUSLY COMPLY WITH THE
RATIONING REGULATIONS.  ADDITIONAL CUSTOMERS, THEN, CLEARLY IMPOSE A
BURDEN WHICH THE RESPONDENT CANNOT BEAR."  NONE OF THE FINDINGS IS
CHALLENGED HERE.  TAKEN AT THEIR FACE VALUE, AS THEY MUST BE, THEY
REFUTE THE SUGGESTION THAT THE ORDER WAS BASED ON CONSIDERATIONS NOT
RELEVANT TO THE PROBLEM OF ALLOCATION.  THEY SUSTAIN THE CONCLUSION
THAT IN RESTRICTING PETITIONER'S QUOTA THE OFFICE OF PRICE
ADMINISTRATION WAS DOING NO MORE THAN PROTECTING A COMMUNITY AGAINST
DISTRIBUTION WHICH MEASURED BY RATIONING STANDARDS WAS INEQUITABLE,
UNFAIR, AND INEFFICIENT.  IF THE POWER TO "ALLOCATE" DID NOT EMBRACE
THAT POWER IT WOULD BE FEEBLE POWER INDEED.    WHAT WE HAVE SAID
DISPOSES OF THE ARGUMENT THAT IF PETITIONER HAS VIOLATED RATION ORDER
NO. 11 THE ONLY RECOURSE OF THE GOVERNMENT IS TO PROCEED UNDER SEC.
2(A)(5) OR SEC. 2(A)(6) WHICH PROVIDE CRIMINAL AND CIVIL SANCTIONS. 
THOSE REMEDIES ARE SANCTIONS FOR THE POWER TO "ALLOCATE."  THEY HARDLY
SUBTRACT FROM THAT POWER.  YET THEY WOULD BE ALLOWED TO DO JUST THAT IF
IT WERE HELD THAT VIOLATIONS BY MIDDLEMEN OF THE RATION ORDERS AND
REGULATIONS COULD NEVER BE THE BASIS OF REALLOCATION OF FUEL OIL INTO
MORE RELIABLE CHANNELS OF DISTRIBUTION. 

IT IS FINALLY POINTED OUT THAT CONGRESS HAS SELDOM USED THE LICENSING
POWER  FN16 AND THAT THAT POWER, WHEN USED, HAS BEEN EMPLOYED
SPARINGLY.  THUS ONE OF THE SANCTIONS OF THE EMERGENCY PRICE CONTROL
ACT OF 1942(56 STAT. 33, 50 U.S.C. APP. (SUPP. III) SEC. 925) IS THE
POWER TO REVOKE LICENSES FOR VIOLATIONS OF MAXIMUM PRICES OR RENTS. 
SEC. 205(F).  THAT POWER MAY BE UTILIZED ONLY IN JUDICIAL PROCEEDINGS;
AND LICENSES MAY BE SUSPENDED ONLY FOR LIMITED PERIODS.  SEC.
205(F)(2).  THAT CONSIDERATION WOULD BE GERMANE TO THE PRESENT PROBLEM
IF CONGRESS HAD IMPLEMENTED THE ALLOCATION PROCEDURE WITH A LICENSING
SYSTEM.  THEN THE QUESTION MIGHT ARISE WHETHER REVOCATION OF THE
LICENSE RATHER THAN THE REALLOCATION OF MATERIALS BY ADMINISTRATIVE
ACTION WAS THE APPROPRIATE PROCEDURE IN CASE OF VIOLATIONS.  CONGRESS,
HOWEVER, DID NOT ADOPT THE LICENSING SYSTEM WHEN IT CAME TO RATIONING. 
AND THE FAILURE TO DO SO IS HARDLY A REASON FOR SAYING THAT THE POWER
TO "ALLOCATE" IS LESS REPLETE THAN A READING OF THE ACT FAIRLY
PERMITS.  AFFIRMED. 

FN1  EXECUTIVE ORDER NO. 9125, 7 FED. REG. 2719; WAR PRODUCTION
BOARD, SUPPLEMENTARY DIRECTIVE 1-0, OCT. 16, 1942, 7 FED. REG. 8418. 

FN2  7 FED. REG. 8480. 

FN3  ID., P. 8480. 

FN4  ID., P. 8480.  RATION ORDER NO. 11 INITIATED RATIONING OF FUEL
OIL IN THIRTY EASTERN, SOUTHEASTERN, AND MIDWESTERN STATES AND IN THE
DISTRICT OF COLUMBIA. 

FN5  SEC. 1394.5652. 

FN6  SECS. 1394.5707, 1394.5708. 

FN7  SEC. 1394.5656. 

FN8  SEC. 1394.5803.  AND SEE 8 FED. REG. 2720. 

THE OFFICE OF PRICE ADMINISTRATION CONFERRED ON ITS HEARING
COMMISSIONERS AND HEARING ADMINISTRATOR THE FUNCTION OF ISSUING
SUSPENSION ORDERS.  GENERAL ORDER 46, 8 FED. REG. 1771.  IT ALSO
ADOPTED, FEB. 6, 1943, PROCEDURAL REGULATION NO. 4, WHICH PRESCRIBED
THE PROCEDURE TO BE USED IN THE ISSUANCE OF RATIONING SUSPENSION
ORDERS.  8 FED. REG. 1744.  AND SEE 9 FED. REG. 2558 FOR THE REVISION
OF THIS REGULATION, ISSUED MAR. 6, 1944. 

FN9  SOME 328,000 GALLONS ACCORDING TO OPA, AROUND 181,000 GALLONS ON
PETITIONER'S COMPUTATION. 

FN10  THE OPA HEARING ADMINISTRATOR FOUND "THE RECORD IS REPLETE WITH
PROOF THAT RESPONDENT DID COMMIT, WITH REFERENCE TO TRANSFERS TO
CONSUMERS, PRACTICALLY EVERY SORT OF VIOLATION KNOWN TO THE REGULATIONS
- MAKING DELIVERIES FOR EXPIRED COUPONS, UNMATURED COUPONS, NO COUPONS
AT ALL AND MAKING EMERGENCY DELIVERIES IN EXCESS OF THE QUANTITIES
PERMITTED." 

FN11  RATION ORDER NO. 11 BECAME EFFECTIVE OCTOBER 22, 1942. 

FN12  ESTABLISHED DECEMBER 2, 1942, BY EXECUTIVE ORDER NO. 9276.  7
FED. REG. 10091. 

FN13  THE SUSPENSION ORDER ALSO PROVIDED FOR AN ACCOUNTING BY
PETITIONER OF ITS FUEL OIL TRANSACTIONS SINCE OCTOBER 22, 1942. 

FN14  PROCEDURAL REGULATION NO. 4, SUPRA, NOTE 8. 

FN15  THE GOVERNMENT HAS CONCEDED THAT THERE MAY BE JUDICIAL REVIEW
OF SUSPENSION ORDERS. 

FN16  SEE SEC. 5 OF THE ACT OF AUGUST 10, 1917, 40 STAT. 276, 277. 

MR. JUSTICE ROBERTS DISSENTS. 
..END :























CRITES, INC. V. PRUDENTIAL CO., 322 U.S. 408 


NO. 317.  ARGUED MARCH 1, 1944.  - DECIDED MAY 22, 1944.  - 134 F.2D
925, REVERSED. 


1.  A FEDERAL COURT RECEIVER WHO, THROUGH A PRIVATE AGREEMENT MADE
PRIOR TO THE FORECLOSURE SALE OF THE PROPERTIES, DERIVED A PROFIT FROM
THEIR SUBSEQUENT RESALE, HELD ACCOUNTABLE TO THE RECEIVERSHIP ESTATE
FOR SUCH PROFIT, NOTWITHSTANDING THAT HE HAD BEEN APPOINTED TO COLLECT
RENTS AND OPERATE THE PROPERTIES AND WAS WITHOUT AUTHORITY IN RESPECT
OF ANY SALE THEREOF.  P. 416. 

2.  THE FEE-SPLITTING ARRANGEMENT ENTERED INTO BY THE RECEIVER IN
THIS CASE, TOGETHER WITH THE FACT THAT HE ENGAGED IN OTHER MISCONDUCT
INCOMPATIBLE WITH HIS POSITION AS AN OFFICER OF THE COURT, REQUIRE THAT
HE BE DENIED ALL FEES AND COMPENSATION AS RECEIVER.  P. 418. 

CRITES, INCORPORATED V. PRUDENTIAL INSURANCE CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 320 U.S. 728, TO REVIEW A JUDGMENT WHICH MODIFIED AND
AFFIRMED AN ORDER OF THE DISTRICT COURT APPROVING AND CONFIRMING
RECEIVERS' ACCOUNTS AND OVERRULING EXCEPTIONS THERETO. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO DETERMINE CERTAIN IMPORTANT
QUESTIONS CONCERNING THE PROPER ADMINISTRATION OF FEDERAL
RECEIVERSHIPS. 

HENRY M. CRITES AND HIS WIFE, MAY R. CRITES, EXECUTED MORTGAGES IN
1929 TO THE PRUDENTIAL INSURANCE COMPANY OF AMERICA UPON 22 PARCELS OF
ADJOINING FARM PROPERTY IN MADISON AND PICKAWAY COUNTIES, OHIO.  EACH
MORTGAGE, BEING IN DEFAULT, WAS MATURED BY ACCELERATION ON DECEMBER 30,
1931.  ON FEBRUARY 17, 1932, PRUDENTIAL BEGAN 22 SEPARATE FORECLOSURE
PROCEEDINGS AGAINST THE CRITESES AND CRITES, INC., THE PETITIONER. 
ONLY THE 11 PROCEEDINGS RELATING TO THE 11 CONTIGUOUS FARMS IN MADISON
COUNTY, ON WHICH THE MORTGAGES AGGREGATED $192,000, ARE NOW BEFORE US. 

AN INVOLUNTARY PETITION IN BANKRUPTCY HAD BEEN FILED AGAINST HENRY M.
CRITES.  PETITIONER IS AN OHIO CORPORATION FORMED BY CRITES' CREDITORS
IN AN EFFORT TO SALVAGE SOMETHING FROM THE FARMS.  TO IT HAD BEEN
CONVEYED ALL THE PROPERTIES OF THE CRITESES, INCLUDING THE EQUITIES OF
REDEMPTION.  PRUDENTIAL REQUESTED THAT A RECEIVER BE APPOINTED TO TAKE
CHARGE OF THE MORTGAGED FARMS PENDING THE TERMINATION OF THE
FORECLOSURE PROCEEDINGS.  THE DISTRICT COURT ACCORDINGLY APPOINTED AS
CO-RECEIVERS THE RESPONDENTS SIMKINS AND FLORENCE "TO COLLECT THE RENTS
AND PROCEEDS OF THE REAL ESTATE  ...  TO OPERATE AND MANAGE SAID REAL
ESTATE THROUGH TENANTS, LESSEES, OR OTHERWISE, TO RENT AND LEASE SAID
REAL ESTATE, TO PAY DELINQUENT TAXES AND ASSESSMENTS AND INSURANCE
PREMIUMS, TO MAKE SUCH REPAIRS AS MAY BE NECESSARY TO PRESERVE THE
VALUE OF THE PREMISES AND TO PRODUCE NORMAL INCOME THEREFROM, AND TO DO
SUCH OTHER ACTS AS MAY BE FROM TIME TO TIME ORDERED BY THE COURT." 
SUBSEQUENT ORDERS AUTHORIZED THEM TO BORROW MONEY FROM PRUDENTIAL AND
FROM THE LOCAL BANK TO PAY NECESSARY EXPENSES RELATING TO THE FARMS AND
TO EXECUTE LEASES OF THE FARMS UPON A SHARE OR CROP RENTAL BASIS. 

NO ANSWERS TO THE FORECLOSURE COMPLAINTS WERE FILED.  IN THE HOPE
THAT ECONOMIC CONDITIONS WOULD IMPROVE AND BRING ABOUT A HIGHER SALE
VALUE, THE DISTRICT COURT ALLOWED THE RECEIVERS TO OPERATE THE FARMS
FOR A YEAR BEFORE ENTERING DECREES PRO CONFESSO ON MAY 2, 1933.  BY
THESE DECREES THE MORTGAGES AND EQUITIES OF REDEMPTION WERE DECLARED
FORECLOSED AND THE MARSHAL WAS DIRECTED TO SELL EACH FARM INDIVIDUALLY
ON JULY 1, 1933, AT A PUBLIC SALE FOR CASH AT NOT LESS THAN TWO-THIRDS
OF THE APPRAISED VALUE.  THE APPRAISERS SET THE VALUE OF THE 11 MADISON
COUNTY FARMS AT $244,080, MAKING $162,720 THE MINIMUM PRICE AT WHICH
THEY COULD BE SOLD.  THE DECREE INDEBTEDNESS IN THE 11 CASES WAS
$223,742.32.  PRUDENTIAL MADE THE SOLE BIDS AT THE PUBLIC SALE ON JULY
1 AND SECURED TITLE TO THE 11 FARMS FOR $163,900, SLIGHTLY MORE THAN
THE UPSET PRICE.  THE DISTRICT COURT CONFIRMED THIS SALE ON JULY 18. 

PRUDENTIAL SUBSEQUENTLY OBJECTED TO THE ALLOWANCE OF THE RECEIVERS'
CLAIMS ON THE GROUND THAT THEY WERE EXCESSIVE.  PETITIONER ALSO FILED
OBJECTIONS.  HEARINGS WERE HELD BEFORE A SPECIAL MASTER.  THE DISTRICT
COURT OVERRULED PETITIONER'S EXCEPTIONS TO THE SPECIAL MASTER'S REPORT
AND ITS COUNTERCLAIM, AMENDED AND APPROVED THE RECEIVERS' ACCOUNTS, AND
AFFIRMED THE SPECIAL MASTER'S REPORT.  PETITIONER ALONE APPEALED, THE
COURT BELOW AFFIRMING THE ACTION OF THE DISTRICT COURT WITH A SLIGHT
MODIFICATION AS TO ADDITIONAL FEES FOR THE RECEIVERS' ATTORNEYS.  134
F.2D 925. 

                                  I. 

PETITIONER'S FIRST CONTENTION IS THAT SIMKINS' ACTIONS IN CONNECTION
WITH THE FORECLOSURE SALES CONSTITUTED A BREACH OF HIS DUTY AS A
RECEIVER AND RENDERED HIM ACCOUNTABLE FOR CERTAIN PROFITS MADE BY HIM
AND OTHERS. 

THE EVIDENCE INDICATES THAT A COL. PROCTOR OF CINCINNATI WAS
INTERESTED IN PURCHASING THE ENTIRE 11 MADISON COUNTY FARMS AS A UNIT
AND THAT HE EMPLOYED A REAL ESTATE AGENT, EDWIN JONES,  FN1  TO
REPRESENT HIM IN THE MATTER.  SEVERAL WEEKS BEFORE THE FORECLOSURE
SALES, JONES VISITED SIMKINS AND TOLD HIM THAT HE UNDERSTOOD THAT
SIMKINS WAS ONE OF THE ATTORNEYS IN THE MATTER AND THAT HE WAS
INTERESTED IN BUYING THE FARMS.  SIMKINS, IN ADDITION TO BEING ONE OF
THE CO-RECEIVERS, WAS AN ATTORNEY WHO HAD REPRESENTED PRUDENTIAL IN
OTHER FORECLOSURE PROCEEDINGS IN OHIO AND WHO HAD SERVED JONES IN A
PROFESSIONAL CAPACITY ON OTHER MATTERS.  SIMKINS REPLIED THAT "WE ARE
IN NO POSITION TO OFFER IT RIGHT NOW, NOT IN POSITION UNTIL AFTER THE
FORECLOSURE PROCEEDINGS AND THE PRUDENTIAL INSURANCE COMPANY ACQUIRES
TITLE FOR IT, THEN THEY WILL BE IN POSITION TO OFFER IT TO ANYBODY ELSE
TRYING TO BUY IT."  SIMKINS AGREED, HOWEVER, TO INTERCEDE ON JONES'
BEHALF.  THEY THEN DREW UP A CONTRACT WHEREBY SIMKINS WAS TO ASSIST
JONES IN SECURING TITLE TO THE 11 FARMS FROM PRUDENTIAL AFTER THE
LATTER HAD SECURED TITLE BY PURCHASE AT THE PUBLIC SALE.  THE
COMPENSATION OF SIMKINS WAS DEPENDENT UPON THE SUCCESS OF THE DEAL. 
SIMKINS DID NOT KNOW AT THIS TIME THE NAME OF JONES' PRINCIPAL OR HOW
MUCH THE PRINCIPAL WAS WILLING TO PAY FOR THE FARMS AS A UNIT.  SIMKINS
THEN INFORMED PETITIONER'S COUNSEL AND THE DISTRICT JUDGE THAT THERE
"MIGHT BE SOME PARTIES INTERESTED" IN THE 11 FARMS AS A UNIT, BUT WAS
INFORMED THAT THEY COULD NOT BE SOLD AS A GROUP.  IT DOES NOT APPEAR
THAT HE TOLD COUNSEL OR THE COURT THAT HE HAD ACCEPTED EMPLOYMENT FROM
JONES.  FN2 

AT JONES' REQUEST, SIMKINS CONFERRED ON JUNE 25, 1933, WITH
PRUDENTIAL REPRESENTATIVES CONCERNING THE POSSIBILITY OF PURCHASING THE
11 FARMS FROM PRUDENTIAL.  NO DEFINITE ARRANGEMENTS WERE THEN MADE, THE
REPRESENTATIVES STATING THAT THEY COULD NOT DISCUSS TERMS UNTIL
PRUDENTIAL HAD BOUGHT THE FARMS AT THE SALE.  ON JUNE 27 JONES
SUBMITTED THROUGH SIMKINS A WRITTEN OFFER OF $249,106 TO PRUDENTIAL FOR
THE 11 FARMS, INCLUDING "THE COMPANY'S UNDIVIDED ONE-HALF INTEREST IN
THE GROWING CORN CROP THEREON."  THE OFFER WAS WITNESSED BY SIMKINS AND
ANOTHER PERSON AND WAS ENCLOSED IN A LETTER WHICH WAS ADDRESSED TO ONE
OF PRUDENTIAL'S REPRESENTATIVES AND WHICH WAS SIGNED BY SIMKINS.  IN
THIS LETTER SIMKINS VOUCHED FOR THE RESPONSIBILITY OF "MR. JONES'
BUYER."  JONES ALSO ENCLOSED A $3,000 CERTIFIED CHECK IN SUPPORT OF HIS
OFFER.  SIMKINS BY THIS TIME CLEARLY WAS AWARE OF THE IDENTITY OF
JONES' PRINCIPAL AND OF THE TERMS OF THE OFFER TO PRUDENTIAL.  BUT HE
MADE NO EFFORT TO INFORM EITHER THE DISTRICT JUDGE OR PETITIONER OF
THESE FACTS PRIOR TO OR AT THE SALE. 

AT THE PUBLIC SALE HELD BY THE MARSHAL ON JULY 1, PRUDENTIAL MADE THE
SOLE BIDS AND SECURED TITLE TO THE 11 FARMS FOR A TOTAL SUM OF
$163,900.  JONES ATTENDED THE SALE BUT COL. PROCTOR HAD NOT AUTHORIZED
JONES TO BID SINCE HE DESIRED TO BUY ONLY WHEN HE COULD BE ASSURED OF
SECURING ALL THE 11 FARMS AT ONCE AND WHEN TITLE TO THEM WAS SUPPORTED
BY A WARRANTY DEED FROM PRUDENTIAL.  TWO DAYS LATER, ON JULY 3,
PRUDENTIAL ACCEPTED JONES' OFFER OF $249,106. 

PRUDENTIAL THEN MOVED TO CONFIRM THE PUBLIC SALES, GIVING DUE NOTICE
TO PETITIONER OF THE HEARING ON THE MOTION.  AT THIS HEARING ON JULY
18, OBJECTIONS TO THE MOTION "WERE SUGGESTED BY REASON OF ALLEGED
COMMITMENTS MADE BY THE PLAINTIFF (PRUDENTIAL) FOR THE SALE OF CERTAIN
OF SAID PROPERTIES, PRIOR TO PUBLIC SALE."  IT DOES NOT APPEAR WHO MADE
THESE OBJECTIONS OR WHETHER THE PETITIONER'S COUNSEL WAS PRESENT. 
HARRISON, ONE OF THE ATTORNEYS FOR THE RECEIVERS, THEREUPON ORALLY
ADVISED THE JUDGE OF THE TERMS AND AMOUNT OF JONES' OFFER AND ITS
ACCEPTANCE BY PRUDENTIAL.  AT THE JUDGE'S SUGGESTION, HARRISON SET
FORTH THESE FACTS IN THE FORM OF AN AFFIDAVIT, WHICH WAS LATER
INTRODUCED AT THE HEARING ON THE RECEIVERS' ACCOUNTS.  THE COURT WAS
NOT INFORMED, HOWEVER, AS TO SIMKINS' PARTICIPATION IN THE MATTER OR AS
TO THE FACT THAT COL. PROCTOR WAS THE ACTUAL PURCHASER OF THE FARMS. 
SIMKINS WAS PRESENT IN THE COURT ROOM AT THIS TIME BUT SAID NOTHING. 
THE JUDGE CONFIRMED THE SALES ON THE SAME DAY, JULY 18.  SOON
AFTERWARDS PRUDENTIAL EXECUTED A WARRANTY DEED TO COL. PROCTOR'S
NOMINEE, THE DEED RECITING A CONSIDERATION OF $249,106 BUT BEARING TAX
STAMPS APPARENTLY INDICATING A SUBSTANTIALLY GREATER PRICE.  FN3 

SIMKINS RECEIVED A TOTAL OF $2,797 FROM JONES, NEARLY ALL OF WHICH
WAS IN PAYMENT FOR HIS AID IN CONSUMMATING THE PURCHASE OF THE FARMS
FROM PRUDENTIAL. 

ON THE BASIS OF THESE FACTS, PETITIONER SEEKS TO HAVE SIMKINS
SURCHARGED WITH (A) ALL PAYMENTS RECEIVED BY HIM FROM JONES FOR HIS
ASSISTANCE IN CONSUMMATING THE RESALE OF THE FARMS TO COL. PROCTOR; (B)
THE COMMISSION OR PROFIT RECEIVED BY JONES; AND (C) THE AMOUNT RECEIVED
BY PRUDENTIAL IN EXCESS OF THE DECREE INDEBTEDNESS OR, IN THE
ALTERNATIVE, THE AMOUNT BY WHICH THE APPRAISED VALUE OF THE FARMS
EXCEEDED THE DECREE INDEBTEDNESS.  PETITIONER CLAIMS THAT SIMKINS MUST
BE SURCHARGED WITH THESE AMOUNTS BECAUSE HE BREACHED HIS DUTY AS CO
RECEIVER BY ACCEPTING EMPLOYMENT FROM JONES IN ADVANCE OF THE
FORECLOSURE SALES TO HELP BRING ABOUT A RESALE OF THE FARMS FROM
PRUDENTIAL TO COL. PROCTOR.  RESPONDENTS, ON THE OTHER HAND, RESIST
THIS CLAIM ON THE GROUND THAT SIMKINS WAS APPOINTED CO-RECEIVER ONLY TO
COLLECT THE RENTS AND TO OPERATE THE FARMS AND HAD NO FIDUCIARY DUTY
WITH RESPECT TO THE FORECLOSURE SALES. 

IT IS TRUE THAT SIMKINS' OFFICIAL DUTIES AS CO-RECEIVER WERE LIMITED
TO THOSE CONFERRED UPON HIM BY THE COURT AND THAT HE HAD NO AUTHORITY
TO SELL OR TO CAUSE A SALE OF THE FARMS IN QUESTION.  THE FORECLOSURE
SALES WERE CONDUCTED BY THE MARSHAL UNDER THE DIRECT SUPERVISION OF THE
DISTRICT COURT AND THERE WAS NO EVIDENCE THAT SIMKINS UNDULY INFLUENCED
THE ACTUAL EXECUTION OF THE SALES IN ANY WAY.  IT IS OBVIOUS, MOREOVER,
THAT SIMKINS WAS BOUND TO PERFORM HIS DELEGATED DUTIES WITH THE HIGH
DEGREE OF CARE DEMANDED OF A TRUSTEE OR OTHER SIMILAR FIDUCIARY.  HE
WAS NOT FREE TO DEAL WITH THE PROPERTY UNDER HIS CONTROL AS CO-RECEIVER
IN SUCH A WAY AS TO BENEFIT HIMSELF OR HIS ASSOCIATES.  ANY PROFITS
THAT MIGHT HAVE RESULTED FROM A BREACH OF THESE HIGH STANDARDS,
INCLUDING THE PROFITS OF OTHERS WHO KNOWINGLY JOINED HIM IN PURSUING AN
ILLEGAL COURSE OF ACTION, WOULD HAVE TO BE DISGORGED AND APPLIED TO THE
ESTATE.  MICHOUD V. GIROD, 4 HOW.  503; MAGRUDER V. DRURY, 235 U.S.
106; JACKSON V. SMITH, 254 U.S. 586. 

BUT SIMKINS' CONDUCT IS NOT TO BE MEASURED SOLELY BY THE ARBITRARY
DICHOTOMY OF FUNCTIONS RELATING TO THE CONSERVATION AND LIQUIDATION OF
THE FARM PROPERTIES.  AS A CO-RECEIVER IN CHARGE OF COLLECTING THE
RENTS AND OPERATING THE FARMS, SIMKINS WAS ALSO AN OFFICER OR ARM OF
THE COURT.  HE WAS APPOINTED TO ASSIST THE COURT IN PROTECTING AND
PRESERVING, FOR THE BENEFIT OF ALL PARTIES CONCERNED, THE PROPERTIES IN
THE COURT'S CUSTODY PENDING THE FORECLOSURE PROCEEDINGS.  BOOTH V.
CLARK, 17 HOW.  322, 331; DAVIS V. GRAY, 16 WALL.  203, 217-218; STUART
V. BOULWARE, 133 U.S. 78, 81; PORTER V. SABIN, 149 U.S. 473, 479;
ATLANTIC TRUST CO. V. CHAPMAN, 208 U.S. 360, 370-371.  THE COURT'S
AUTHORITY AND DUTIES, HOWEVER, COVERED ALL PHASES OF THE FORECLOSURE
PROCEEDINGS.  THEY INCLUDED NOT ONLY THE CONSERVATION BUT THE
LIQUIDATION OF THE FARM PROPERTIES.  THE COURT HAD DISCRETION TO
DELEGATE THESE DUTIES AS IT SAW FIT.  BUT WHATEVER THE FUNCTIONAL
DISTRIBUTION, ALL THE COURT OFFICERS WERE BOUND TO ACT FAIRLY AND
OPENLY WITH RESPECT TO EVERY ASPECT OF THE PROCEEDINGS BEFORE THE
COURT.  THE MERE FACT THAT ANY ONE ASPECT DID NOT FALL WITHIN THE
DELEGATED FUNCTION OF A PARTICULAR COURT OFFICER DID NOT GIVE THAT
OFFICER FREE REIN TO ACT IN A SECRET, NON-JUDICIAL MANNER AS TO THAT
ASPECT.  THE COURT, AS WELL AS ALL THE INTERESTED PARTIES, HAD THE
RIGHT TO EXPECT THAT ITS OFFICERS WOULD NOT MAKE UNDISCLOSED PRIVATE
AGREEMENTS, FAIL TO REVEAL ANY PERTINENT INFORMATION OR USE THEIR
OFFICIAL POSITION FOR THEIR OWN PROFIT OR TO FURTHER THE INTERESTS OF
THEMSELVES OR ANY ASSOCIATES. 

IT IS IMPOSSIBLE TO RECONCILE THE ACTIVITIES OF SIMKINS RELATING TO
THE FORECLOSURE SALES WITH THE BASIC STANDARD OF CONDUCT DEMANDED OF
HIM AS AN OFFICER OF THE COURT.  ONE OF THE PRIME PURPOSES OF THE
FORECLOSURE PROCEEDINGS WAS TO OBTAIN ENOUGH MONEY FROM THE FARM
PROPERTIES TO PAY IN FULL THE MORTGAGE INDEBTEDNESS, WITH ANY SURPLUS
GOING TO THE OWNER OF THE EQUITIES OF REDEMPTION.  ALL INFORMATION TO
THAT END WHICH CAME TO SIMKINS OR TO ANY OTHER COURT OFFICER BELONGED
TO THE COURT AND TO THE PARTIES INTERESTED IN THE FORECLOSURE
PROCEEDINGS.  HERE SIMKINS HAD KNOWLEDGE OF A PROSPECTIVE PURCHASER OF
THE FARMS WHO WAS WILLING TO PAY MORE THAN THE MORTGAGE INDEBTEDNESS ON
THE PROPERTIES.  YET HE MADE NO EFFORT TO REVEAL THIS IMPORTANT
INFORMATION PRIOR TO THE FORECLOSURE SALES OTHER THAN TO STATE THAT
THERE "MIGHT BE SOME PARTIES INTERESTED" IN BUYING THE 11 FARMS AS A
UNIT.  HE WAS TOLD THAT THE COURT COULD NOT ORDER A PUBLIC SALE OF THE
FARMS AS A UNIT.  BUT IT IS CLEAR THAT THE COURT AND PETITIONER MIGHT
WELL HAVE PROFITED IF SIMKINS HAD MORE FULLY REVEALED TO THEM IN
ADVANCE OF THE SALES THAT THERE WAS A PROSPECT OF SELLING ALL 11 FARMS
TO A RESPONSIBLE BUYER AT AN ADVANTAGEOUS PRICE.  PETITIONER COULD WELL
HAVE BEEN GIVEN THE OPPORTUNITY TO BARGAIN DIRECTLY WITH COL. PROCTOR
FOR A PRIVATE SALE OF THE FARMS AS A UNIT.  FN4  THIS SUPPRESSION OF
VITAL INFORMATION WAS IN NO WAY MITIGATED BY THE PARTIAL REVELATION OF
THE FACTS AT THE HEARING ON THE MOTION TO CONFIRM THE SALES TO
PRUDENTIAL, AFTER PRUDENTIAL HAD ACCEPTED THE RESALE OFFER, OR BY ANY
SUBSEQUENT KNOWLEDGE OBTAINED BY PETITIONER.  THE INFORMATION WAS MOST
VALUABLE PRIOR TO THE FORECLOSURE SALES WHEN THE PROSPECTS WERE GREATER
FOR SUCCESSFUL BARGAINING, AND IT SHOULD HAVE BEEN DIVULGED AT THAT
TIME.    MOREOVER IT WAS INCONSISTENT WITH HIS POSITION AS AN OFFICER
OF THE COURT FOR SIMKINS TO MAKE A SECRET ARRANGEMENT WITH JONES TO
BRING ABOUT, BY ACTIVE INTERVENTION, A RESALE OF THE PROPERTIES IN THE
CUSTODY OF THE COURT.  THE FACT THAT HE WAS NOT A LIQUIDATING RECEIVER
DID NOT ABSOLVE HIM OF THE DUTY TO ACT OPENLY AT ALL TIMES WITH RESPECT
TO THE SUBJECT MATTER OF THE PROCEEDINGS.  DUE REGARD FOR HIS OFFICIAL
POSITION DEMANDED THAT HE AT LEAST NOTIFY AND OBTAIN THE APPROVAL OF
THE COURT AND OF THE INTERESTED PARTIES BEFORE ENTERING INTO AN
EMPLOYMENT CONTRACT WITH A THIRD PARTY WHEREIN HIS COMPENSATION WAS
DEPENDENT UPON A PARTICULAR BIDDER BEING SUCCESSFUL AT THE FORECLOSURE
SALES.  THIS ARRANGEMENT BROUGHT OUT IN EVEN BOLDER RELIEF THE
REPREHENSIBLENESS OF SIMKINS' FAILURE TO DISCLOSE ALL THE FACTS
REGARDING COL. PROCTOR'S INTEREST IN PURCHASING THE FARMS.  HAD SUCH
FACTS BEEN REVEALED PRIOR TO THE PUBLIC FORECLOSURE SALES, PRUDENTIAL
MIGHT NOT HAVE OBTAINED TITLE TO THE FARMS AND SIMKINS WOULD NOT HAVE
EARNED ANY COMPENSATION UNDER HIS CONTRACT WITH JONES.  IT WAS THUS TO
SIMKINS' PERSONAL BENEFIT NOT TO DISCLOSE ALL THE PERTINENT FACTS. 

SINCE THE COURSE TAKEN BY SIMKINS WAS ONE WHICH HE AS AN OFFICER OF
THE COURT COULD NOT LEGALLY PURSUE AND SINCE PROFITS RESULTED TO HIM,
THE LAW MAKES HIM ACCOUNTABLE TO THE TRUST ESTATE FOR ALL SUCH
PROFITS.  CF. MAGRUDER V. DRURY, SUPRA; JACKSON V. SMITH, SUPRA.  WE
NEED NOT SPECULATE AS TO WHETHER HIS CONDUCT OPERATED TO DAMPEN THE
FORECLOSURE SALES TO ANY APPRECIABLE DEGREE OR WHETHER THE ESTATE WAS
IN ANY OTHER WAY INJURED.  IT IS ENOUGH THAT HIS ACTIVITIES HAD A
TENDENCY TO DAMPEN THE SALES.  FOR THAT REASON ALONE HE MAY BE HELD TO
FORFEIT ALL PROFITS HE DERIVED FROM HIS MISCONDUCT, REGARDLESS OF
WHETHER IT ACTUALLY HAD AN ADVERSE EFFECT OR NOT.  IN THIS TYPE OF
SITUATION "THE INCIDENCE OF A PARTICULAR CONFLICT OF INTEREST CAN
SELDOM BE MEASURED WITH ANY DEGREE OF CERTAINTY."  WOODS V. CITY
NATIONAL BANK CO., 312 U.S. 262, 268.  PROOF OF PROFITS RESULTING FROM
AN IRREGULAR OR CONFLICTING COURSE OF CONDUCT IS SUFFICIENT.  SIMKINS
WAS THUS ACCOUNTABLE FOR THE PAYMENTS RECEIVED BY HIM FROM JONES FOR
HIS ASSISTANCE IN CONSUMMATING THE RESALE OF THE FARMS FROM PRUDENTIAL
TO COL. PROCTOR.  FN5 

UNDER THE CIRCUMSTANCES OF THIS CASE, HOWEVER, SIMKINS WAS NOT
SURCHARGEABLE WITH THE COMMISSION RECEIVED BY JONES, WITH ANY AMOUNT
RECEIVED BY PRUDENTIAL OR WITH THE AMOUNT BY WHICH THE APPRAISED VALUE
OF THE FARMS EXCEEDED THE DECREE INDEBTEDNESS.  WE PERCEIVE NO BASIS IN
THIS RECORD FOR HOLDING SIMKINS RESPONSIBLE FOR ANY POSSIBLE MISCONDUCT
ON THE PART OF JONES OR PRUDENTIAL OR FOR ANY PROFITS THAT THEY MAY
HAVE OBTAINED THEREBY.  WE DO NOT, OF COURSE, DETERMINE IN THIS
PROCEEDING WHETHER PETITIONER COULD RECOVER ANY SUCH PROFITS IN A
DIRECT ACTION AGAINST EITHER JONES OR PRUDENTIAL. 

                 II. 

PETITIONER ALSO CLAIMS THAT SIMKINS SHOULD BE SURCHARGED WITH ALL HIS
RECEIVERSHIP FEES BECAUSE OF A FEESPLITTING ARRANGEMENT WHICH HE MADE
WITH HARRISON AND INGALLS, THE ATTORNEYS FOR THE CO-RECEIVERS AS WELL
AS FOR PRUDENTIAL.  THE THREE AGREED TO POOL THE FEES ALLOWED THEM BY
THE DISTRICT COURT AND TO DIVIDE THEM EQUALLY, ALTHOUGH THIS
ARRANGEMENT APPARENTLY WAS NOT COMPLETELY CARRIED OUT. 

PETITIONER EXCEPTED TO ALL CREDITS IN THE RECEIVERS' ACCOUNTS FOR
FEES TO EITHER SIMKINS OR INGALLS BECAUSE OF THIS ARRANGEMENT.  THE
COURT BELOW ALLOWED CREDIT TO THE RECEIVERS FOR THE $250 FEES RECEIVED
BY HARRISON AND INGALLS FROM THE COURT AS PRELIMINARY COMPENSATION AND
FOR ALL OUT-OF-POCKET EXPENSES INCURRED BY THE TWO ATTORNEYS ON BEHALF
OF THE ESTATE.  BUT ALL CREDITS WERE DENIED FOR ADDITIONAL ATTORNEY
FEES PAID TO THEM.  PETITIONER OBJECTS TO THE FAILURE TO DISALLOW THE
$250 FEE ALLOWED SIMKINS BY THE DISTRICT COURT AND THE ADDITIONAL
$1,800 FEE WHICH HE PAID TO HIMSELF ON ACCOUNT OF HIS SERVICES AS CO
RECEIVER. 

A FEE-SPLITTING ARRANGEMENT OF THIS NATURE IS CLEARLY UNENFORCEABLE
AND VOID AS AGAINST PUBLIC POLICY.  WEIL V. NEARY, 278 U.S. 160.  BUT
WHETHER THE PARTIES TO SUCH A CONTRACT SHOULD BE ALLOWED ANY FEES AT
ALL, AND IF SO THE AMOUNT THEREOF, ARE NORMALLY MATTERS WITHIN THE
SOUND DISCRETION OF THE DISTRICT COURT AND ARE NOT REVIEWABLE EXCEPT
WHERE A CLEAR ABUSE OF DISCRETION IS APPARENT.  IN THIS CASE, HOWEVER,
THE FACT THAT SIMKINS ENTERED INTO A FEE-SPLITTING CONTRACT SO PATENTLY
ILLEGAL, PLUS THE FACT THAT HE ENGAGED IN OTHER MISCONDUCT AND
INDISCRETIONS INCOMPATIBLE WITH HIS POSITION AS AN OFFICER OF THE
COURT, COMPEL THE CONCLUSION THAT ALL FEES AND COMPENSATION AS CO
RECEIVER SHOULD HAVE BEEN DENIED HIM.  CF. WOODS V. CITY NATIONAL BANK
CO., SUPRA, 268. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED AND THE CAUSE IS REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  JONES WAS FAMILIAR WITH THE 11 MADISON COUNTY FARMS, HAVING MADE
AN OFFER OF $500,000 FOR THEM "A YEAR OR MORE" PRIOR TO 1933 ON BEHALF
OF A NEW YORK PRINCIPAL.  CRITES REJECTED THIS OFFER, HOWEVER. 

FN2  SIMKINS TESTIFIED THAT THE FACT OF HIS EMPLOYMENT BY JONES "WAS
NO SECRET" AND THAT "I MAY HAVE TOLD JUDGE HOUGH.  I WOULD NOT HAVE
HESITATED IN TELLING HIM." 

FN3  PETITIONER CLAIMS THAT THE STAMPS INDICATE THAT COL. PROCTOR
PAID APPROXIMATELY $281,000, "PRESUMABLY, $249,106 NET TO PRUDENTIAL
...  AND THE DIFFERENCE OF $31,894 TO JONES."  THERE WAS NO PROOF,
HOWEVER, THAT JONES RECEIVED THAT AMOUNT.  HE TESTIFIED MERELY THAT HE
RECEIVED $15,000 AND AN ADDITIONAL AMOUNT THAT HE DID NOT REMEMBER,
FROM WHICH AMOUNTS HE PAID SIMKINS. 

FN4  THE SPECIAL MASTER AND THE COURT BELOW FOUND THAT COL. PROCTOR
WAS INTERESTED IN PURCHASING THE 11 FARMS AS A UNIT ONLY IF HE COULD
OBTAIN A WARRANTY DEED FROM PRUDENTIAL.  BUT THERE WAS NO EVIDENCE THAT
PETITIONER COULD NOT HAVE FURNISHED MUNIMENTS OF TITLE EQUALLY
SATISFACTORY TO COL. PROCTOR OR THAT HE WOULD NOT HAVE BEEN SATISFIED
WITH A WARRANTY DEED FROM PETITIONER.  ACCORDING TO JONES, COL. PROCTOR
"SAID A GENERAL WARRANTY DEED FROM THE PRUDENTIAL INSURANCE COMPANY WAS
GOOD ENOUGH FOR HIM." 

FN5  IT IS UNNECESSARY TO CONSIDER PETITIONER'S ARGUMENT RELATING TO
THE SALE TO PRUDENTIAL OF THE GROWING CROPS ON THE FARM LANDS, INASMUCH
AS PETITIONER SEEKS TO SURCHARGE SIMKINS WITH THE SAME AMOUNTS AS IN
CONNECTION WITH THE SALE OF THE LANDS AND NO DIFFERENT CONSIDERATIONS
ARE PRESENT.  RESPONDENTS' CLAIM THAT PETITIONER IS BARRED FROM RELIEF
BECAUSE OF LACHES IS WITHOUT MERIT.  NOTHING IN THE RECORD INDICATES
THAT PETITIONER DISCOVERED THE FULL FACTS CONCERNING SIMKINS'
ACTIVITIES UNTIL SEVERAL YEARS AFTER THE FORECLOSURE SALES.  PETITIONER
THEN MADE TIMELY EXCEPTIONS TO THE RECEIVERS' ACCOUNTS. 

MR. JUSTICE ROBERTS: 

I AM OF OPINION THAT CERTIORARI SHOULD NOT HAVE BEEN GRANTED IN THIS
CASE AND THAT THE WRIT SHOULD BE DISMISSED. 

THE CIRCUIT COURT OF APPEALS RECOGNIZED ESTABLISHED PRINCIPLES IN
DETERMINING TO WHAT EXTENT THE RESPONDENT SIMKINS SHOULD BE DENIED
COMPENSATION FOR SERVICES BY REASON OF HIS ACTING IN INCONSISTENT
RELATIONS.  THAT COURT CANVASSED AUTHORITIES WHICH THIS COURT CITES IN
ITS OPINION AND NOT ONLY DID NOT REFUSE TO FOLLOW AND APPLY THEM BUT,
AS I THINK, IN PERFECT GOOD FAITH, PROCEEDED TO EXAMINE AND APPRAISE
THE FACTS AND CIRCUMSTANCES IN ORDER TO APPLY THE RELEVANT LEGAL
PRINCIPLES. 

THERE IS NOT A SUGGESTION OF ANY CONFLICT AMONGST THE FEDERAL COURTS
RESPECTING THE LAW WHICH SHOULD GOVERN DECISION NOR IS THERE ANY
SUGGESTION THAT, ON AN IDENTICAL SET OF FACTS, ANY FEDERAL COURT HAS
REACHED A RESULT CONTRARY TO THAT REACHED BY THE COURT BELOW.  IN
ESSENCE, THE CASE PRESENTS THE QUESTION WHETHER THE ACTION TAKEN BY THE
CIRCUIT COURT OF APPEALS WAS SUFFICIENTLY DRASTIC IN THE CIRCUMSTANCES
DISCLOSED. 

I THINK IT PLAIN THAT THIS CASE FALLS WITHIN THE CATEGORY TO WHICH I
REFERRED IN BAILEY V. CENTRAL VERMONT RY. CO., 319 U.S. 350, 354.  ALL
THE CONSIDERATIONS THERE MENTIONED APPLY EQUALLY HERE.  IF THIS COURT
IS TO SPEND ITS TIME CORRECTING MISTAKES IN THE APPRAISAL OF FACTS IN
INDIVIDUAL CASES BY COURTS BELOW, THE PERFORMANCE OF ITS ESSENTIAL
FUNCTIONS NECESSARILY WILL SUFFER. 
..END :














ARENAS V. UNITED STATES, 322 U.S. 419 


NO. 463.  ARGUED MARCH 6, 7, 1944.  - DECIDED MAY 22, 1944.  - 137 F.2D
199, REVERSED. 


UPON THE RECORD IN THIS CASE, WHICH WAS A SUIT BROUGHT AGAINST THE
UNITED STATES UNDER THE ACT OF AUGUST 15, 1894, BY AN INDIAN CLAIMING,
UNDER THE MISSION INDIAN ACT OF 1891, AS AMENDED BY THE ACT OF MARCH 2,
1917, A RIGHT TO A TRUST PATENT TO AN ALLOTMENT OF LANDS WHICH HAD LONG
BEEN IN HIS POSSESSION AND WHICH HAD BEEN CONSIDERABLY IMPROVED BY HIM,
BUT WHICH ALLOTMENT HAD NOT BEEN FINALLY APPROVED BY THE SECRETARY OF
THE INTERIOR, THE GOVERNMENT WAS NOT ENTITLED TO SUMMARY JUDGMENT BUT
SHOULD BE REQUIRED TO ANSWER, AND THE CAUSE SHOULD PROCEED TO TRIAL,
FINDINGS AND JUDGMENT.  P. 433. 

ARENAS V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 320 U.S. 733, TO REVIEW THE AFFIRMANCE OF A SUMMARY
JUDGMENT FOR THE UNITED STATES IN A SUIT AGAINST IT UNDER A SPECIAL
JURISDICTIONAL ACT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER ARENAS IS A FULL-BLOOD MISSION INDIAN, REGULARLY
ENROLLED IN THE AGUA CALIENTE OR PALM SPRINGS BAND.  HE SUED IN THE
UNITED STATES DISTRICT COURT TO BE AWARDED A TRUST PATENT TO CERTAIN
LANDS ON THE PALM SPRINGS RESERVATION.  THE GOVERNMENT WAS GRANTED A
SUMMARY JUDGMENT OF DISMISSAL ON AFFIDAVITS AND ON THE RECORD OF THE
ST. MARIE LITIGATION ON LIKE CLAIMS BY SIMILARLY SITUATED INDIANS.  FN1
NO FINDINGS HAVE BEEN MADE IN THIS CASE BY THE DISTRICT COURT.  THE
CIRCUIT COURT OF APPEALS AFFIRMED,  FN2  CHIEFLY IN RELIANCE UPON ITS
PREVIOUS DECISION IN THE ST. MARIE CASE, AND WE GRANTED CERTIORARI. 
FN3 

FOR A LONG PERIOD CONGRESS PURSUED THE POLICY OF IMPOSING, AS RAPIDLY
AS POSSIBLE, OUR SYSTEM OF INDIVIDUAL LAND TENURE ON THE INDIAN.  TO
THIS END TRIBAL OR COMMUNAL LAND HOLDINGS OF THE INDIANS WERE
SUPERSEDED BY ALLOTMENT TO INDIVIDUALS, WHO WERE PROTECTED AGAINST
IMPROVIDENCE BY RESTRAINTS ON ALIENATION.  FN4 THE MISSION INDIANS HAD
DESERVED WELL AND HAD FARED BADLY  FN5  AND CONGRESS PASSED THE MISSION
INDIAN ACT OF 1891  FN6  FOR THEIR PARTICULAR REDRESS. 

THE FIRST THREE SECTIONS OF THIS ACT SET UP A COMMISSION TO SETTLE
THESE SEVERAL BANDS ON SUITABLE RESERVATIONS AND DIRECTED THAT
APPROPRIATE PATENTS ISSUE.  THE UNITED STATES WAS TO HOLD THE TITLES IN
TRUST, HOWEVER, FOR TWENTY-FIVE YEARS AND THEN WAS TO CONVEY TO THE
TRIBES ANY PORTIONS NOT PREVIOUSLY PATENTED IN SEVERALTY TO MEMBERS. 
SEVERAL RESERVATIONS WERE SET APART, INCLUDING ONE AT PALM SPRINGS,
WITH WHICH THIS AND THE ST. MARIE CASE WERE CONCERNED. 

THE ACT ALSO PROVIDED IN SEC. 4 THAT WHENEVER IN THE OPINION OF THE
SECRETARY OF THE INTERIOR ANY OF THE INDIANS SHOULD "BE SO ADVANCED IN
CIVILIZATION AS TO BE CAPABLE OF OWNING AND MANAGING LAND IN SEVERALTY,
THE SECRETARY OF THE INTERIOR MAY CAUSE ALLOTMENTS TO BE MADE TO SUCH
INDIANS, OUT OF THE LAND OF SUCH RESERVATION" AND IT SPECIFIED THE
ACREAGE TO BE ALLOTTED TO EACH.  SECTION 5 PROVIDED THAT ON APPROVAL OF
THE ALLOTMENTS THE SECRETARY SHOULD CAUSE PATENTS TO ISSUE IN THE NAME
OF THE ALLOTTEES.  FOR TWENTY-FIVE YEARS THE LANDS WERE TO REMAIN IN
TRUST FOR THEIR BENEFIT AND THEN WERE TO BE CONVEYED IN FEE FREE OF THE
TRUST.  FN7 

NEVERTHELESS, LITTLE WAS DONE TOWARD ALLOTMENT IN SEVERALTY TO
MISSION INDIANS FOR NEARLY TWENTY-FIVE YEARS.  ONE REASON, WE GATHER,
WAS THAT THE ACT AUTHORIZED ALLOTMENT ON A MORE LIBERAL BASIS THAN
AVAILABLE LANDS WOULD PERMIT, ALTHOUGH THERE MAY HAVE BEEN OTHER
REASONS.  IN 1916, HOWEVER, SECRETARY LANE CALLED THE NEGLECT TO THE
ATTENTION OF CONGRESS AND ASKED THAT HE BE AUTHORIZED TO MAKE
ALLOTMENTS IN QUANTITIES GOVERNED BY THE GENERAL ALLOTMENT ACT OF 1887
AS AMENDED BY SEC. 17 OF THE ACT OF JUNE 25, 1910, 36 STAT. 859,
INSTEAD OF IN THOSE SET OUT IN THE MISSION INDIAN ACT OF 1891. 
THEREUPON CONGRESS PASSED THE ACT OF MARCH 2, 1917  FN8  BY WHICH IT
"AUTHORIZED AND DIRECTED" THE SECRETARY TO PROCEED UNDER THE ACT OF
1910. 

THE SECRETARY ON JUNE 7, 1921 APPOINTED HARRY E. WADSWORTH AS SPECIAL
ALLOTTING AGENT AT LARGE FOR THE MISSION INDIAN RESERVATIONS OF
CALIFORNIA AND INSTRUCTED HIM TO PREPARE SCHEDULES OF SELECTIONS FOR
ALLOTMENTS THEREON.  IN 1923, WADSWORTH FILED A SCHEDULE SHOWING
SELECTIONS ON THE PALM SPRINGS RESERVATION FOR FIFTY MEMBERS OF THE
BAND.  THE SECRETARY EXPRESSLY DISAPPROVED THIS SCHEDULE.  COMPLAINT
HAD COME FROM THE INDIANS, MANY OF WHOM DID NOT WANT ALLOTMENTS AND HAD
NOT MADE THE SELECTIONS LISTED IN THEIR NAMES.  WHEN THEY FAILED TO
CHOOSE, THE ALLOTMENT AGENT HAD MADE A CHOICE FOR THEM.  THE SECRETARY
INSTRUCTED WADSWORTH TO PREPARE A NEW SCHEDULE LISTING ONLY SELECTIONS
VOLUNTARILY MADE AND TO LEAVE OFF THOSE WHO DID NOT DESIRE ALLOTMENTS. 
IN 1927, THE DEPARTMENT RECEIVED FROM WADSWORTH A NEW SCHEDULE SHOWING
VOLUNTARY SELECTIONS FOR TWENTY-FOUR MEMBERS OF THE PALM SPRINGS BAND. 

EACH INDIAN FOR WHOM A SELECTION WAS LISTED RECEIVED FROM WADSWORTH A
CERTIFICATE OF SELECTION FOR ALLOTMENT.  EACH WAS STAMPED "NOT VALID
UNLESS APPROVED BY THE SECRETARY OF THE INTERIOR." 

ON OCTOBER 26, 1923, WADSWORTH ASKED THE INDIAN DEPARTMENT FOR
INSTRUCTIONS, RECITING, "ALLOTMENTS BEING COMPLETED AND CERTIFICATES
ISSUED.  MANY ALLOTTEES ANXIOUS TO IMMEDIATELY OCCUPY THEIR SELECTIONS
AND PREPARE THINGS FOR EARLY CROPS INSTEAD WAITING FOR RECEIPT OF
PATENTS."  ON THE SAME DAY HE RECEIVED REPLY, "NO OBJECTION TO INDIANS
PREPARING THEIR RESPECTIVE ALLOTMENT SELECTIONS FOR CROPS IF PROPERLY
LISTED ON SCHEDULE."  WADSWORTH ALSO WROTE TO ONE, AT LEAST, OF THE
ALLOTTEES IN THE ST. MARIE CASE, SAYING AMONG OTHER THINGS, "IT IS
DIFFICULT TO TELL EXACTLY WHEN YOU MAY EXPECT THESE PATENTS FROM
WASHINGTON BUT I BELIEVE THEY SHOULD BE HERE WITHIN 6 WEEKS OR SO.
THEY WILL COME TO THE SUPERINTENDENT IN RIVERSIDE, WHO WILL NOTIFY YOU
THAT THEY ARE THERE AND READY FOR DELIVERY TO YOU.  IN THE MEANTIME,
THE COMMISSIONER OF INDIAN AFFAIRS IN WASHINGTON AUTHORIZES ME TO SAY
TO YOU THAT FROM THIS DATE YOU ARE ENTITLED TO ENTER UPON AND TAKE
POSSESSION OF THESE ALLOTMENTS, AND THESE CERTIFICATES WILL BE YOUR
EVIDENCE OF SUCH AUTHORITY UNTIL THE TRUST PATENTS ARE RECEIVED BY
YOU." 

WADSWORTH FILED THE SCHEDULE WITH THE DEPARTMENT OF THE INTERIOR.  HE
ATTACHED A CERTIFICATE, AMONG OTHER THINGS RECITING "THAT THE
ALLOTMENTS SHOWN HEREON WERE MADE IN ACCORDANCE WITH THE PROVISIONS OF
THE ACT OF CONGRESS OF FEBRUARY 8, 1887 AS AMENDED BY THE ACT OF JUNE
25, 1910 AND SUPPLEMENTED BY THE ACT OF MARCH 2, 1917."  THE GENERAL
LAND OFFICE RECOMMENDED THAT THE SCHEDULE BE APPROVED, WITH EXCEPTIONS
THAT APPEAR TO HAVE NO BEARING ON THE CASE BEFORE US. 

BUT THE ALLOTMENTS APPEAR NEVER TO HAVE BEEN APPROVED BY THE
SECRETARY.  HE REFUSES TO ISSUE PATENTS TO WHICH THESE INDIANS CLAIM TO
BE ENTITLED.  THE GOVERNMENT'S MOVING PAPERS CONTAIN AN AFFIDAVIT BY
COUNSEL DECLARING THAT THE SECRETARY DISAPPROVED THE ALLOTMENTS.  BUT
IT GIVES NO REASON, AND NO ORDER OR STATEMENT OF DISAPPROVAL BY THE
SECRETARY IS IN THE RECORD.  THE GOVERNMENT FILED NO PLEADING AVERRING
REASONS FOR DISAPPROVAL OR, IF DISAPPROVAL WAS FORMAL, SETTING FORTH
THE DOCUMENT.  ON THE CONTRARY, COUNSEL SEEMS TO HAVE TAKEN THE
POSITION THAT AS MATTER OF LAW THE SECRETARY'S REASONS AND THE FORM OF
HIS DISAPPROVAL WERE NOT RELEVANT TO ANY QUESTION THE COURT IS
EMPOWERED TO DECIDE. 

THE POWER OF THE SECRETARY SO TO REFUSE PATENTS AND THE POWERLESSNESS
OF THE COURTS TO REVIEW THE REFUSAL ARE HERE MAINTAINED ON THESE
CONTENTIONS:  "IT RESTS IN THE COMPLETE DISCRETION OF THE SECRETARY OF
THE INTERIOR WHETHER OR NOT ALLOTMENTS SHALL BE MADE ON THE PALM
SPRINGS RESERVATION.  SECTIONS 4 AND 5 OF THE ACT OF JANUARY 12, 1891
CONTEMPLATE THREE STEPS IN THE MAKING OF ALLOTMENTS ON THAT
RESERVATION:  (1) AN OPINION BY THE SECRETARY AS TO THE CAPACITY OF THE
INDIANS TO RECEIVE ALLOTMENTS; (2) A METHOD OR PROCEDURE FOR MAKING
SUCH ALLOTMENTS; AND (3) APPROVAL OF THE ALLOTMENTS BY THE SECRETARY. 
EACH OF THESE STEPS IS UNDER THE CONTROL AND RESTS IN THE DISCRETION OF
THE SECRETARY."  UPON THESE GROUNDS THE TRIAL COURT AND THE CIRCUIT
COURT OF APPEALS HELD THAT THE PLAINTIFFS IN THE ST. MARIE CASES WERE
NOT ENTITLED TO PATENTS AND THAT THIS PETITIONER IS NOT ENTITLED TO GO
TO TRIAL. 

                          I.

       THE SECRETARY'S DISCRETION IN DETERMINING THE CAPACITY OF

                  THE INDIANS TO RECEIVE ALLOTMENTS. 

THE ACT OF 1891 PROVIDES THAT "WHENEVER ANY OF THE INDIANS RESIDING
UPON ANY RESERVATION PATENTED UNDER THE PROVISIONS OF THIS ACT SHALL,
IN THE OPINION OF THE SECRETARY OF THE INTERIOR, BE SO ADVANCED IN
CIVILIZATION AS TO BE CAPABLE OF OWNING AND MANAGING LAND IN SEVERALTY,
THE SECRETARY OF THE INTERIOR MAY CAUSE ALLOTMENTS TO BE MADE TO SUCH
INDIANS."  THIS UNDOUBTEDLY CONFERRED A VERY CONSIDERABLE DISCRETION
UPON THE SECRETARY. 

THE ACT OF 1917, HOWEVER, DROPS THE LANGUAGE OF DISCRETION AND
DIRECTS THE SECRETARY TO CAUSE ALLOTMENTS TO BE MADE TO THE INDIANS ON
THE MISSION RESERVATIONS.  FN9  THE ACT WAS PREPARED BY THE SECRETARY
FN10  AND IF IT WAS INTENDED TO PERPETUATE HIS DISCRETION AS TO WHETHER
THE ALLOTMENT POLICY WAS TO BE APPLIED TO THESE INDIANS AT ALL, IT
MIGHT EASILY HAVE SO PROVIDED.  BOTH THE SECRETARY AND CONGRESS APPEAR
TO HAVE SETTLED THAT POINT.  THE COMMUNICATION OF THE SECRETARY TO THE
CHAIRMAN OF THE SENATE COMMITTEE ON INDIAN AFFAIRS INDICATES NO
RESERVATIONS ABOUT THE SECRETARY'S VIEW THAT THE INDIANS WERE QUALIFIED
AND THAT THE DEPARTMENT SHOULD CARRY OUT THE ALLOTMENT POLICY.  IT
POINTS OUT CERTAIN EVILS AND INEQUALITIES AMONG THE INDIANS UNDER THE
TRIBAL SYSTEM OF LAND HOLDINGS AND SAYS, "THIS IS A CONDITION THAT
CANNOT BE CURED ENTIRELY UNTIL THE LANDS HAVE BEEN ALLOTTED IN
SEVERALTY."  AND AGAIN IT SAYS, "THE DEPARTMENT BELIEVES THAT THE
PRESENT CONDITIONS, WHILE MUCH BETTER THAN THEY WERE SOME YEARS AGO,
WOULD BE RAPIDLY IMPROVED BY ALLOTMENT IN SEVERALTY, PROVIDED AUTHORITY
TO PRORATE THE AVAILABLE LAND IS GIVEN." 

FOLLOWING PASSAGE OF THE ACT THE SECRETARY SET ABOUT EXECUTING ITS
DIRECTIONS.  WADSWORTH WAS APPOINTED GENERAL ALLOTMENT AGENT AND WAS
SENT TO THE INDIANS WITH INSTRUCTIONS TO PERMIT THEM TO SELECT THEIR
OWN ALLOTMENTS.  WHEN HE SELECTED FOR THOSE WHO DID NOT CHOOSE FOR
THEMSELVES, HIS SCHEDULE WAS DISAPPROVED, AND ONLY FOR THAT REASON.  HE
WAS RETURNED TO THE TASK OF COMPILING VOLUNTARY SELECTIONS FOR THOSE
WHO DESIRED ALLOTMENTS, IT BEING THOUGHT THAT IF THAT WERE DONE THOSE
WHO OBJECTED "WOULD SOON FALL IN LINE AND REQUEST THAT THEY TOO BE
GIVEN THEIR PROPORTIONATE SHARE OF THE ALLOTTABLE AREAS."  FN11  THERE
IS NO DENIAL THAT WADSWORTH WAS AUTHORIZED TO HOLD OUT TO THE INDIANS
THAT THEIR PATENTS WOULD BE RECEIVED IN A FEW WEEKS AND THAT MEANWHILE,
IF NOT ALREADY LIVING ON THEIR SELECTED LANDS, THEY MIGHT ENTER INTO
POSSESSION. 

TO ASSUME THAT THE ACT OF 1917, WHILE DIRECTING THE SECRETARY TO MAKE
ALLOTMENTS, ONLY MEANT TO GIVE HIM UNCONTROLLED DISCRETION NOT TO DO SO
WOULD BE A DOUBTFUL CONSTRUCTION, IN VIEW OF ITS HISTORY.  BUT EVEN IF
IT WERE SO INTERPRETED, IT DID NOT REQUIRE THE SECRETARY TO MANIFEST
HIS EXERCISE OF DISCRETION IN ANY FORMAL WAY.  HIS OPINION THAT THE
INDIANS HAD THE CAPACITY FOR INDIVIDUAL RESPONSIBILITY FOR LAND
OWNERSHIP COULD BE INDICATED BY CONDUCT AS WELL AS BY WORDS.  WE THINK
HIS CONDUCT AND WORDS AMOUNT BOTH TO AN ADMINISTRATIVE CONSTRUCTION OF
THE 1917 ACT AS A DIRECTION AND TO THE EXERCISE OF ANY DISCRETION HE
MAY HAVE HAD UNDER IT. 

IF THE INDIANS WERE NOT READY FOR ALLOTMENTS, WHY SEND AN AGENT TO
HOLD OUT TO THEM THAT HOPE AND PROMISE?  WHY THE ELABORATE PROCEDURE OF
ALLOTMENT?  THE DEPARTMENT THEN SOUGHT NOT ONLY TO OFFER ALLOTMENT BUT
TO PROCEED SO AS TO MAKE THE INDIANS "FALL IN LINE."  DESPITE THE
OBVIOUS INFERENCE FROM THESE ACTS THE RECORD DOES NOT COUNTER THEM BY
ANY SHOWING THAT THE SECRETARY NOW CONSIDERS THESE INDIANS TO LACK
CIVILIZATION AND CAPACITY, TESTED BY THE USUAL STANDARDS FOR ALLOTMENT,
NOR DOES IT SHOW THAT THEY DO NOT IN FACT POSSESS IT.  HISTORY AND
COMMON KNOWLEDGE OF THESE INDIANS WOULD INDICATE THAT THEY ARE NOT
WANTING IN WHATEVER IT IS THAT MAKES UP "CIVILIZATION."  LONG AGO THE
FRANCISCANS CONVERTED THEM TO CHRISTIANITY, TAUGHT THEM TO SUBSIST BY
GOOD HUSBANDRY AND HANDICRAFTS.  UNDER THE TREATY OF GUADALUPE HIDALGO
(1848) THEIR ANCESTRAL LANDS AND THEIR GOVERNANCE PASSED FROM MEXICO TO
THE UNITED STATES.  DURING THE GOLD DISCOVERY DAYS THEY WERE TOO GENTLE
TO COMBAT THE RUTHLESS PRESSURES OF THE WHITES AND CAME TO LEAD A
PRECARIOUS AND PITIABLE, BUT PEACEFUL, EXISTENCE.  EVENTUALLY THE
COUNTRY WAS AROUSED BY THEIR PLIGHT AND SET UP A COMMISSION TO
INVESTIGATE THEIR GRIEVANCES AND TO MAKE RECOMMENDATIONS FOR THEIR
PROTECTION AND RELIEF.  IT REPORTED IN 1884  FN12  AND ITS
RECOMMENDATIONS WERE SUBSTANTIALLY EMBODIED IN THE MISSION INDIAN ACT
OF 1891.  BY THE STANDARDS OF PEACEFULNESS, INDUSTRY, AND GENTLENESS
THESE INDIANS HAVE LONG BEEN "CIVILIZED."  EVEN TESTED BY THE STANDARD
OF ACQUISITIVENESS, THEY SEEM NOT TO HAVE FAILED.  IMPROVEMENTS MADE BY
ARENAS ON THE LANDS HE OCCUPIED IN RELIANCE UPON HIS CERTIFICATE ARE
VALUED AT $15,000. 

ON THE RECORD AS IT NOW STANDS WE DO NOT THINK THE GOVERNMENT HAS
ESTABLISHED THE FALSITY OF THE ALLEGATIONS OF THE COMPLAINT THAT THE
SECRETARY HAD MADE THE PRELIMINARY DECISION AS TO THE ALLOTMENTS.  WE
THINK THE ISSUE HAS BEEN SETTLED, IN THE ABSENCE OF FURTHER PROOF TO
THE CONTRARY, BY THE ACT OF 1917 AND THE SECRETARY'S ACTION UNDER IT.

 II.

          THE SECRETARY'S DISCRETION AS TO PROCEDURE FOR MAKING

                     SUCH ALLOTMENTS. 

WE DO NOT SEE THAT THIS IS MUCH IN QUESTION NOR IS MUCH IN POINT, IF
TRUE.  ARENAS DOES NOT QUESTION THAT THE SECRETARY HAD DISCRETION TO
ADOPT THE METHOD OF ALLOTMENT WHICH WAS FOLLOWED.  HE CLAIMS THAT BOTH
HE AND THE DEPARTMENT HAVE COMPLIED WITH IT, THAT HIS CHOICE HAS BEEN
ASCERTAINED, THE LANDS HAVE BEEN IDENTIFIED AND MARKED AND REPORTED TO
THE DEPARTMENT, AND THAT NOTHING REMAINS FOR EITHER TO DO TO PERFECT
THE RIGHT TO A PATENT.  IF THERE HAS BEEN ANY IRREGULARITY IN THE
PROCEDURE TO LEAD TO A PATENT, THE GOVERNMENT HAS NOT PLEADED OR
EVIDENCED IT IN THE CASE.  WE ASSUME THE SECRETARY'S COMPLETE CONTROL
OF THE METHOD AND, AS THE RECORD STANDS, THAT HIS METHOD HAS BEEN
EXECUTED TO THE POINT WHERE A PATENT WOULD ISSUE BUT FOR THE REFUSAL OF
THE SECRETARY. 

                                 III. 

   THE SECRETARY'S DISCRETION AS TO FINAL APPROVAL OF THE

                       ALLOTMENTS. 

THIS IS THE CRUX OF THE LAWSUIT.  IT IS AS TO THIS FINAL STEP THAT
CONGRESS HAS INVESTED THE COURTS WITH SOME RESPONSIBILITY. 

THE ACT OF AUGUST 15, 1894, 25 U.S.C. SEC. 345, AUTHORIZES INDIANS TO
COMMENCE AND PROSECUTE ACTIONS "IN RELATION TO THEIR RIGHT" TO LAND
UNDER ANY ALLOTMENT ACT OR UNDER ANY GRANT MADE BY CONGRESS "IN THE
PROPER DISTRICT COURT OF THE UNITED STATES; AND SAID DISTRICT COURTS
ARE GIVEN JURISDICTION TO TRY AND DETERMINE ANY ACTION, SUIT, OR
PROCEEDING ARISING WITHIN THEIR RESPECTIVE JURISDICTIONS INVOLVING THE
RIGHT OF ANY PERSON, IN WHOLE OR IN PART OF INDIAN BLOOD OR DESCENT, TO
ANY ALLOTMENT OF LAND UNDER ANY LAW OR TREATY."  IT IS FURTHER PROVIDED
THAT "THE JUDGMENT OR DECREE OF ANY SUCH COURT IN FAVOR OF ANY CLAIMANT
TO AN ALLOTMENT OF LAND SHALL HAVE THE SAME EFFECT, WHEN PROPERLY
CERTIFIED TO THE SECRETARY OF INTERIOR, AS IF SUCH ALLOTMENT HAD BEEN
ALLOWED AND APPROVED BY HIM."  FN13 

UNDER THIS STATUTE THE COURTS HAVE DECIDED DISPUTES BETWEEN INDIANS
AND THE GOVERNMENT AS TO THE RELATIVE QUALIFICATIONS OF TWO CLAIMANTS
TO RECEIVE, AS A MEMBER OF A BAND, A PATENT, HY-YU-TSE-MIL-KIN V.
SMITH, 194 U.S. 401, AND WHETHER PARTICULAR LANDS WERE APPROPRIATE FOR
ALLOTMENT, UNITED STATES V. PAYNE, 264 U.S. 446. 

BUT HERE WE DO NOT KNOW FROM ANY INFORMATION DEVELOPED IN THE
ADVERSARY PROCEEDINGS WHAT THE DISPUTE BETWEEN THE SECRETARY OF THE
INTERIOR AND ARENAS IS ABOUT.  THE GOVERNMENT DID NOT ANSWER THE
COMPLAINT.  IT FORECLOSED EVIDENCE ON THE FACTS BY ITS MOTION FOR
SUMMARY JUDGMENT, IN WHICH IT INCORPORATED THE EVIDENCE IN ANOTHER
PROCEEDING.  IN THAT OTHER PROCEEDING NO REPRESENTATIVE OF THE
GOVERNMENT EXCEPT THE LOCAL MISSION INDIAN AGENT AND WADSWORTH, THE
FORMER ALLOTMENT AGENT, WERE SWORN.  THERE APPEARS TO HAVE BEEN NO
TESTIMONY AS TO WHAT HAPPENED TO THE SCHEDULE OF ALLOTMENTS AFTER IT
REACHED WASHINGTON OR AS TO WHETHER IT EVER WAS APPROVED OR DISAPPROVED
AND, IF SO, HOW OR BY WHOM OR WHY.  THE GOVERNMENT'S AFFIDAVIT FILED IN
OPPOSITION TO THE MOTION RECITED THAT THE SECRETARY'S RECORDS "REVEAL
THAT THE SECRETARY OF THE INTERIOR HAS DISAPPROVED THE ALLOTMENT
SCHEDULE AND CERTIFICATES OF SELECTION."  NO ENTRY ORDER OR MEMORANDUM
OF DISAPPROVAL IS PRODUCED, NOR IS THE DATE THEREOF STATED. 

CERTAIN FACTS DO APPEAR FROM WHICH WE KNOW THAT THIS IS NO ORDINARY
ALLOTMENT PROBLEM.  EACH SELECTION HERE INCLUDED THREE KINDS OF LAND: A
TWO-ACRE TOWN LOT, OF CONSIDERABLE VALUE; FIVE ACRES OF IRRIGABLE LAND
OF FAIR VALUE; AND FORTY ACRES OF DESERT LAND.  ALL OF THE TOWN LOTS
CHOSEN ARE IN SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST.  THIS SECTION
CONTAINS PALM SPRINGS, A HOT MINERAL SPRING, FROM WHICH THE RESERVATION
DERIVES ITS NAME. 

BUT THE RESERVATION ITSELF IS A CHECKERBOARD AFFAIR.  AT THE TIME OF
ITS ESTABLISHMENT THE ODD-NUMBERED SECTIONS ALREADY HAD BEEN GRANTED TO
THE SOUTHERN PACIFIC RAILROAD AND HENCE THE RESERVATION CONSISTED OF
ONLY EVEN-NUMBERED SECTIONS.  ON THE RAILROAD SECTIONS THE WHITES HAVE
ESTABLISHED THE SETTLEMENT KNOWN AS PALM SPRINGS, A FLOURISHING WINTER
RESORT WITH LARGE HOTELS AND THE USUAL BUSINESS PLACES AND RESIDENCES
THAT CHARACTERIZE SUCH A DEVELOPMENT.  OUT OF THIS SITUATION HAS GROWN
CONFLICT OF INTEREST BETWEEN THE INDIANS AND THE WHITES AND BETWEEN
INDIANS THEMSELVES.  THE INDIANS, TO THE ANNOYANCE OF THE WHITES, SEEK
TO EXPLOIT THEIR OWNERSHIP OF THE SPRINGS, AND THE WHITES ARE ACCUSED,
NOT WITHOUT PROBABLE CAUSE, OF COVETING THE INDIANS' PROPERTY RIGHTS
THEREIN.  THOSE AMONG BOTH RACES WHO FAVOR ALLOTMENT ALLEGE THAT THE
DENIAL OF PATENTS IS DESIGNED TO SERVE THE WHITE INTERESTS IN PALM
SPRINGS BY LEASING OR SELLING VALUABLE TRIBAL LANDS TO THOSE WHO ARE
PROMOTING THE RESORT INTERESTS.  THOSE WHO OPPOSE ISSUANCE OF PATENTS
ALLEGE THAT THE ALLOTMENT SYSTEM IS UNFAIR TO THE TRIBE AND WILL RESULT
EVENTUALLY IN THE WHITES' GETTING POSSESSION AND TITLE TO THE LANDS. 
THE OUTLINES OF THE CONTROVERSY ARE CLEAR, BUT THE SUMMARY DISPOSITION
OF THE CASE HAS PRECLUDED THE ADVERSARY TRIAL WHICH ALONE WOULD GIVE
RELIABLE FOUNDATION FOR DETERMINING IT, IF INDEED THE EVIDENCE WILL
SHOW THAT IT SHOULD BE THE SUBJECT OF JUDICIAL DETERMINATION.  THE
LEGAL CLAIMS OF THIS PARTICULAR INDIAN TO A PATENT FOR THE LANDS HE
SELECTED FOR ALLOTMENT, WHICH HAVE LONG BEEN IN HIS POSSESSION AND HAVE
BEEN CONSIDERABLY IMPROVED WITH THE KNOWLEDGE OF THE GOVERNMENT, ARE
NOW ENTANGLED IN LARGER QUESTIONS OF INDIAN LAND POLICY. 

THE JURISDICTIONAL ACT OF 1894, UNDER WHICH THIS SUIT IS IN THE
COURTS, REQUIRES THEM TO ADJUDICATE LEGAL RIGHTS OF THE PARTIES AND TO
RENDER A JUDGMENT WHICH WILL STAND IN LIEU OF THE SECRETARY'S ACTION IF
HE HAS UNLAWFULLY DENIED A PATENT TO AN ALLOTMENT TO WHICH THE INDIAN
IS ENTITLED.  BUT COURTS ARE NOT TO DETERMINE QUESTIONS OF INDIAN LAND
POLICY, NOR CAN THE SECRETARY ON GROUNDS OF POLICY DEPRIVE AN ALLOTTEE
OF ANY RIGHTS HE MAY HAVE ACQUIRED IN HIS ALLOTMENT.  TO SEPARATE
QUESTIONS OF RIGHT FROM QUESTIONS OF POLICY REQUIRES JUDICIAL
EXAMINATION OF ANY WELL PLEADED ALLEGATION OF THE COMPLAINT AND OF ANY
GROUNDS ADVANCED FOR REFUSAL OF THE PATENT.  EVEN IN SOME DISCRETIONARY
MATTERS, IT HAS BEEN HELD THAT IF AN OFFICIAL ACTS SOLELY ON GROUNDS
WHICH MISAPPREHEND THE LEGAL RIGHTS OF THE PARTIES, AN OTHERWISE
UNREVIEWABLE DISCRETION MAY BECOME SUBJECT TO CORRECTION.  PERKINS V.
ELG, 307 U.S. 325, 349. 

SINCE THE GOVERNMENT HAS NOT PLEADED TO THE COMPLAINT NOR OFFERED
EVIDENCE AS TO THE SECRETARY'S POSITION WE KNOW IT ONLY AS STATED IN
ARGUMENT.  IT APPEARS THAT THE SOLE REASON FOR DENYING A PATENT IS A
DEPARTMENTAL CHANGE OF POLICY, BY WHICH THE SECRETARY NOW DISAGREES
WITH THE ALLOTMENT POLICY PRESCRIBED FOR THESE INDIANS BY THE ACTS OF
1891 AND 1917.  THE GOVERNMENT BRIEF SAYS, "MEANWHILE OPPOSITION TO THE
MAKING OF ALLOTMENTS IN SEVERALTY DEVELOPED AMONG THE MEMBERS OF THE
PALM SPRINGS BAND OF INDIANS, AND AS A RESULT ADMINISTRATIVE ACTION ON
THE 1927 SCHEDULE WAS FURTHER DELAYED.  DURING THIS PERIOD THE
CONCLUSION WAS REACHED IN THE DEPARTMENT THAT IN FAIRNESS TO THE BAND
AS A WHOLE AND FROM THE STANDPOINT OF THEIR BEST INTERESTS THE LANDS
SCHEDULED FOR ALLOTMENT SHOULD BE HELD IN A TRIBAL STATUS AND DEALT
WITH AS A TRIBAL ASSET."  IT SAYS FURTHER, "THE SECRETARY HAS
DETERMINED THAT IT WOULD BE INEQUITABLE AND DETRIMENTAL TO THE PALM
SPRINGS BAND OF INDIANS AS A WHOLE TO APPROVE ANY ALLOTMENTS ON THEIR
RESERVATION."  AGAIN, "THE SECRETARY SHOULD NOT BE COMPELLED TO CARRY
THROUGH A PLAN OF ALLOTMENT IN SEVERALTY WHICH IN HIS JUDGMENT WILL
OPERATE CONTRARY TO THE BEST INTERESTS OF THE PALM SPRINGS BAND OF
INDIANS, BUT HE SHOULD BE PERMITTED TO STAY HIS HAND AND SEEK A TIME
WHICH WOULD BE MORE IN THE INTEREST OF THAT BAND." 

THE SECRETARY HAS ENDEAVORED TO PERSUADE CONGRESS THAT TREATMENT
OTHER THAN THE ALLOTMENT POLICY EMBODIED IN ITS LEGISLATION WOULD BE
MORE ADVANTAGEOUS FOR THE INDIANS.  IN 1935, HE RECOMMENDED TO CONGRESS
A BILL AUTHORIZING HIM TO MAKE A 99-YEAR LEASE OF THE RESERVATION
LANDS.  FN14  THIS FAILED OF ENACTMENT.  IN 1937, THE SECRETARY
RECOMMENDED A BILL TO REPEAL THE PROVISIONS OF THE ACT OF MARCH 2,
1917, DIRECTING THE MAKING OF ALLOTMENTS ON THE MISSION INDIAN
RESERVATIONS.  FN15 THAT BILL FAILED.  HE ALSO RECOMMENDED A BILL TO
AUTHORIZE THE SALE OF A PART OF THE PALM SPRINGS RESERVATION.  FN16
THAT LIKEWISE FAILED OF ENACTMENT. 

WE THINK THE GROUNDS ADVANCED BY THE GOVERNMENT BY WAY OF ARGUMENT,
ALTHOUGH NOT BY WAY OF EVIDENCE, ARE INADEQUATE TO ESTABLISH AS MATTER
OF LAW THAT THE PETITIONER HAS NO LEGAL RIGHT TO A PATENT.  CONGRESS
NOT ONLY HAS FAILED TO DENY THESE ALLOTMENT RIGHTS BY LEGISLATION, BUT
HAS REJECTED URGENT AND REITERATED APPEALS FROM THE DEPARTMENT TO DO
SO.  ARENAS IS ENTITLED TO INVOKE THE APPLICABLE LEGISLATION AS IT
STANDS IN DETERMINING WHETHER HE IS ENTITLED TO HAVE COMPLETED THE ALL
BUT FULLY EXECUTED POLICY OF ALLOTMENT.  FN17 

THE PETITIONER MADE NO COUNTER MOTION IN THE DISTRICT COURT FOR
SUMMARY JUDGMENT AGAINST THE GOVERNMENT.  BEFORE US HE ASKS ONLY THAT
HIS COMPLAINT BE ANSWERED AND THAT HE BE GIVEN A CHANCE TO ESTABLISH
HIS LEGAL CLAIM IF HE CAN BY TRIAL.  THE SUMMARY JUDGMENT AGAINST HIM
SHOULD BE REVERSED AND THE GOVERNMENT REQUIRED TO ANSWER.  WE DO NOT
PRECLUDE MOTION BY THE GOVERNMENT TO STRIKE PARTS OF THE COMPLAINT IF
ANY ARE FOUND TO BE IMPROPER PLEADING.  BUT WE THINK THE DUTY OF THE
COURT UNDER THE JURISDICTIONAL ACT CAN BE DISCHARGED IN A CASE OF THIS
COMPLEXITY ONLY BY TRIAL, FINDINGS AND JUDGMENT IN REGULAR COURSE. 
REVERSED. 

FN1  ST. MARIE V. UNITED STATES, 24 F.SUPP.  237, 108 F.2D 876, CERT.
DENIED BECAUSE PETITION OUT OF TIME, 311 U.S. 652. 

FN2  137 F.2D 199. 

FN3  320 U.S. 733. 

FN4  GENERAL ALLOTMENT ACT OF 1887, 24 STAT. 388, 25 U.S.C. SEC. 331;
SEE COHEN, HANDBOOK OF FEDERAL INDIAN LAW, C. 11. 

FN5  SEE REPORT ON CONDITIONS AND NEEDS OF THE MISSION INDIANS, SEN.
REP. NO. 74, 50TH CONG., 1ST SESS. 

FN6  26 STAT. 712. 

FN7  SECTIONS 4 AND 5 OF THE ACT PROVIDE AS FOLLOWS: 

"SEC. 4.  THAT WHENEVER ANY OF THE INDIANS RESIDING UPON ANY
RESERVATION PATENTED UNDER THE PROVISIONS OF THIS ACT SHALL, IN THE
OPINION OF THE SECRETARY OF THE INTERIOR, BE SO ADVANCED IN
CIVILIZATION AS TO BE CAPABLE OF OWNING AND MANAGING LAND IN SEVERALTY,
THE SECRETARY OF THE INTERIOR MAY CAUSE ALLOTMENTS TO BE MADE TO SUCH
INDIANS, OUT OF THE LAND OF SUCH RESERVATION, IN QUANTITY AS FOLLOWS:
TO EACH HEAD OF A FAMILY NOT MORE THAN SIX HUNDRED AND FORTY ACRES NOR
LESS THAN ONE HUNDRED AND SIXTY ACRES OF PASTURE OR GRAZING LAND, AND
IN ADDITION THERETO NOT EXCEEDING TWENTY ACRES, AS HE SHALL DEEM FOR
THE BEST INTEREST OF THE ALLOTTEE, OF ARABLE LAND IN SOME SUITABLE
LOCALITY; TO EACH SINGLE PERSON OVER TWENTY-ONE YEARS OF AGE NOT LESS
THAN EIGHTY NOR MORE THAN SIX HUNDRED AND FORTY ACRES OF PASTURE OR
GRAZING LAND AND NOT EXCEEDING TEN ACRES OF SUCH ARABLE LAND. 

"SEC. 5.  THAT UPON THE APPROVAL OF THE ALLOTMENTS PROVIDED FOR IN
THE PRECEDING SECTION BY THE SECRETARY OF THE INTERIOR HE SHALL CAUSE
PATENTS TO ISSUE THEREFOR IN THE NAME OF THE ALLOTTEES, WHICH SHALL BE
OF THE LEGAL EFFECT AND DECLARE THAT THE UNITED STATES DOES AND WILL
HOLD THE LAND THUS ALLOTTED FOR THE PERIOD OF TWENTY-FIVE YEARS, IN
TRUST FOR THE SOLE USE AND BENEFIT OF THE INDIAN TO WHOM SUCH ALLOTMENT
SHALL HAVE BEEN MADE, OR, IN CASE OF HIS DECEASE, OF HIS HEIRS
ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA, AND THAT AT THE
EXPIRATION OF SAID PERIOD THE UNITED STATES WILL CONVEY THE SAME BY
PATENT TO THE SAID INDIAN, OR HIS HEIRS AS AFORESAID, IN FEE,
DISCHARGED OF SAID TRUST AND FREE OF ALL CHARGE OR INCUMBRANCE
WHATSOEVER.  AND IF ANY CONVEYANCE SHALL BE MADE OF THE LANDS SET APART
AND ALLOTTED AS HEREIN PROVIDED, OR ANY CONTRACT MADE TOUCHING THE
SAME, BEFORE THE EXPIRATION OF THE TIME ABOVE MENTIONED, SUCH
CONVEYANCE OR CONTRACT SHALL BE ABSOLUTELY NULL AND VOID:  PROVIDED,
THAT THESE PATENTS, WHEN ISSUED, SHALL OVERRIDE THE PATENT AUTHORIZED
TO BE ISSUED TO THE BAND OR VILLAGE AS AFORESAID, AND SHALL SEPARATE
THE INDIVIDUAL ALLOTMENT FROM THE LANDS HELD IN COMMON, WHICH PROVISO
SHALL BE INCORPORATED IN EACH OF THE VILLAGE PATENTS." 

FN8  39 STAT. 969, 976. 

FN9  THE ACT OF 1917 IN RELEVANT PART PROVIDES THAT:  "  ...  THE
SECRETARY OF THE INTERIOR BE, AND HE IS HEREBY, AUTHORIZED AND DIRECTED
TO CAUSE ALLOTMENTS TO BE MADE TO THE INDIANS BELONGING TO AND HAVING
TRIBAL RIGHTS ON THE MISSION INDIAN RESERVATIONS IN THE STATE OF
CALIFORNIA, IN AREAS AS PROVIDED IN SECTION SEVENTEEN OF THE ACT OF
JUNE TWENTY-FIFTH, NINETEEN HUNDRED AND TEN (THIRTY-SIXTH STATUTES AT
LARGE, PAGE EIGHT HUNDRED AND FIFTY-NINE), INSTEAD OF AS PROVIDED IN
ONE (TWENTY-SIXTH STATUTES AT LARGE, PAGE SEVEN HUNDRED AND THIRTEEN):
PROVIDED, THAT THIS ACT SHALL NOT AFFECT ANY ALLOTMENTS HERETOFORE
PATENTED TO THESE INDIANS."  39 STAT. 969, 976. 

FN10  SEE LETTER OF SECRETARY OF INTERIOR TO CHAIRMAN OF SENATE
COMMITTEE ON INDIAN AFFAIRS, JANUARY 7, 1916. 

FN11  LETTER OF THE COMMISSIONER OF INDIAN AFFAIRS TO THE SECRETARY
OF THE INTERIOR, DECEMBER 22, 1926.    FN12  S. EX. DOC. NO. 49, 48TH
CONG., 1ST SESS., REPRODUCED IN SEN. REP. NO. 74, 50TH CONG., 1ST
SESS. 

FN13  THE STATUTE IN FULL IS AS FOLLOWS: 

"ALL PERSONS WHO ARE IN WHOLE OR IN PART OF INDIAN BLOOD OR DESCENT
WHO ARE ENTITLED TO AN ALLOTMENT OF LAND UNDER ANY LAW OF CONGRESS, OR
WHO CLAIM TO BE SO ENTITLED TO LAND UNDER ANY ALLOTMENT ACT OR UNDER
ANY GRANT MADE BY CONGRESS, OR WHO CLAIM TO HAVE BEEN UNLAWFULLY DENIED
OR EXCLUDED FROM ANY ALLOTMENT OR ANY PARCEL OF LAND TO WHICH THEY
CLAIM TO BE LAWFULLY ENTITLED BY VIRTUE OF ANY ACT OF CONGRESS, MAY
COMMENCE AND PROSECUTE OR DEFEND ANY ACTION, SUIT, OR PROCEEDING IN
RELATION TO THEIR RIGHT THERETO IN THE PROPER DISTRICT COURT OF THE
UNITED STATES; AND SAID DISTRICT COURTS ARE GIVEN JURISDICTION TO TRY
AND DETERMINE ANY ACTION, SUIT, OR PROCEEDING ARISING WITHIN THEIR
RESPECTIVE JURISDICTIONS INVOLVING THE RIGHT OF ANY PERSON, IN WHOLE OR
IN PART OF INDIAN BLOOD OR DESCENT, TO ANY ALLOTMENT OF LAND UNDER ANY
LAW OR TREATY (AND IN SAID SUIT THE PARTIES THERETO SHALL BE THE
CLAIMANT AS PLAINTIFF AND THE UNITED STATES AS PARTY DEFENDANT); AND
THE JUDGMENT OR DECREE OF ANY SUCH COURT IN FAVOR OF ANY CLAIMANT TO AN
ALLOTMENT OF LAND SHALL HAVE THE SAME EFFECT, WHEN PROPERLY CERTIFIED
TO THE SECRETARY OF THE INTERIOR, AS IF SUCH ALLOTMENT HAD BEEN ALLOWED
AND APPROVED BY HIM, BUT THIS PROVISION SHALL NOT APPLY TO ANY LANDS
HELD AUGUST 15, 1894, BY EITHER OF THE FIVE CIVILIZED TRIBES, NOR TO
ANY OF THE LANDS WITHIN THE QUAPAW INDIAN AGENCY:  PROVIDED, THAT THE
RIGHT OF APPEAL SHALL BE ALLOWED TO EITHER PARTY AS IN OTHER CASES." 

FN14  SEE H.R. REP. NO. 1521 AND SEN. REP. NO. 1201, 74TH CONG., 1ST
SESS. 

FN15  SEN. REP. NO. 1238, 75TH CONG., 1ST SESS.  THE PALM SPRINGS
INDIANS WERE AMONG THOSE WHICH HAD VOTED AGAINST APPLICATION TO THEM OF
THE INDIAN REORGANIZATION ACT OF 1934, 48 STAT. 984, WHICH WOULD HAVE
TERMINATED ALL FUTURE ALLOTMENT IN SEVERALTY. 

FN16  HEARINGS, HOUSE COMMITTEE ON INDIAN AFFAIRS, ON H.R. 7450, 75TH
CONG., 3D SESS., PP. 5-6. 

FN17  THE SOLICITOR OF THE DEPARTMENT OF INTERIOR HAS HIMSELF
INDICATED THAT WHERE THE INDIAN HAS DONE ALL HE COULD TO GET HIS PATENT
AND HAS FAILED BECAUSE OF THE NEGLECT OF PUBLIC OFFICERS THE COURTS
WILL GENERALLY PROTECT HIM, AND THAT THIS MAY BE PROPER EVEN WHERE
THERE HAS BEEN A FAILURE TO APPROVE THE ALLOTMENT.  SEE 55 DECISIONS OF
THE DEPARTMENT OF THE INTERIOR 295, 303-304. 
..END :





















HUDDLESTON V. DWYER, 322 U.S. 232 


NO. 628.  ARGUED APRIL 25, 1944.  - DECIDED MAY 15, 1944.  - 137 F.2D
383, VACATED. 


1.  IT IS THE DUTY OF THE FEDERAL APPELLATE COURTS, AS WELL AS THE
TRIAL COURT, TO ASCERTAIN AND APPLY THE STATE LAW WHERE THAT LAW
CONTROLS THE DECISION.  P. 236. 

2.  A JUDGMENT OF A FEDERAL COURT IN A CASE RULED BY STATE LAW,
CORRECTLY APPLYING THAT LAW AS AUTHORITATIVELY DECLARED BY THE STATE
COURTS WHEN THE JUDGMENT WAS RENDERED, MUST BE REVERSED ON APPELLATE
REVIEW IF IN THE MEANTIME THE STATE COURTS HAVE DISAPPROVED THEIR
FORMER RULINGS AND ADOPTED DIFFERENT ONES.  P. 236. 

3.  THIS COURT ORDINARILY WILL NOT DECIDE QUESTIONS OF STATE LAW
WHICH MAY CONVENIENTLY BE DECIDED FIRST BY THE COURT WHOSE JUDGMENT IS
HERE ON REVIEW.  P. 237. 

4.  UPON REVIEW HERE OF A JUDGMENT OF THE CIRCUIT COURT OF APPEALS IN
A CASE IN WHICH THE DECISION IS CONTROLLED BY STATE LAW, IT APPEARS
THAT A DECISION OF THE HIGHEST COURT OF THE STATE, RENDERED
SUBSEQUENTLY TO THOSE ON WHICH THE CIRCUIT COURT OF APPEALS RELIED, HAS
AT LEAST RAISED SUCH DOUBT AS TO THE APPLICABLE STATE LAW AS TO REQUIRE
ITS REEXAMINATION.  THE JUDGMENT THEREFORE IS VACATED AND THE CAUSE
REMANDED TO THE CIRCUIT COURT OF APPEALS FOR RECONSIDERATION IN THE
LIGHT OF THE SUBSEQUENT STATE COURT DECISION.  P. 236. 

HUDDLESTON ET AL. V. DWYER ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 321 U.S. 759, TO REVIEW THE AFFIRMANCE OF AN ORDER
DIRECTING A LEVY OF TAXES TO PROVIDE FUNDS FOR THE PAYMENT OF
RESPONDENT BONDHOLDERS. 

PER CURIAM. 

RESPONDENTS ARE OWNERS OF DEFAULTED PAVING BONDS ISSUED BY THE CITY
OF POTEAU IN LE FLORE COUNTY, OKLAHOMA, THE BONDS BEING SECURED BY
ASSESSMENTS FOR BENEFITS, PAYABLE IN TEN ANNUAL INSTALLMENTS, UPON THE
PROPERTY IN TWO IMPROVEMENT DISTRICTS ESTABLISHED BY THE CITY,
INCLUDING CERTAIN LOTS OWNED BY THE COUNTY, AND OTHERS BELONGING TO THE
CITY, WHICH IT LATER CONVEYED TO THE COUNTY.  RESPONDENTS BROUGHT SUIT
IN 1937 IN THE DISTRICT COURT FOR EASTERN OKLAHOMA, AGAINST THE COUNTY,
ITS BOARD OF COMMISSIONERS AND OTHER OFFICERS OF THE COUNTY AND CITY,
ALLEGING DIVERSITY OF CITIZENSHIP, AND SEEKING A JUDGMENT FIXING THE
COUNTY'S LIABILITY UNDER STATE LAW FOR THE ASSESSMENTS AND ASKING
MANDAMUS TO COMPEL A TAX LEVY BY THE COUNTY OFFICIALS FOR THE PAYMENT
OF THE OVERDUE ASSESSMENTS, AND OTHER RELIEF. 

THE DISTRICT COURT DISMISSED THE COMPLAINT.  THE CIRCUIT COURT OF
APPEALS FOR THE TENTH CIRCUIT REVERSED AND REMANDED THE CAUSE TO THE
DISTRICT COURT WITH DIRECTIONS TO DETERMINE THE AMOUNTS DUE ON THE
RESPECTIVE ASSESSMENTS AGAINST THE LOTS IN QUESTION, AND IN THE EVENT
OF FAILURE TO PROVIDE FUNDS FOR THE PAYMENT OF THE JUDGMENT, THEN TO
ENTERTAIN JURISDICTION IN AN ANCILLARY PROCEEDING IN MANDAMUS TO COMPEL
THE NECESSARY TAX LEVIES.  DWYER V. LE FLORE COUNTY, 97 F.2D 823.  THE
DISTRICT COURT ENTERED JUDGMENT ACCORDINGLY, RETAINING JURISDICTION FOR
SUCH ACTION AS MIGHT BE NECESSARY TO EFFECTUATE THE JUDGMENT. 

NO FUNDS HAVING BEEN PROVIDED FOR PAYMENT OF THE OVERDUE ASSESSMENTS,
RESPONDENTS BROUGHT THE PRESENT PROCEEDING IN THE DISTRICT COURT FOR
MANDAMUS, TO COMPEL PETITIONERS, COUNTY COMMISSIONERS AND OTHER COUNTY
OFFICERS, TO MAKE THE TAX LEVIES NECESSARY FOR PAYMENT OF THE AMOUNTS
ADJUDGED TO BE DUE.  THE DISTRICT COURT GAVE JUDGMENT FOR MANDAMUS, IN
EFFECT DIRECTING PETITIONERS, BEGINNING WITH THE FISCAL YEAR 1942-3, TO
MAKE TEN ANNUAL LEVIES IN CONNECTION WITH THE COUNTY GENERAL FUND
LEVIES, SUFFICIENT TO PAY SUCCESSIVELY THE TEN ASSESSMENT INSTALLMENTS
WHICH BECAME DUE AND PAYABLE IN THE YEARS 1925 TO 1934 INCLUSIVE, WITH
INTEREST AT 12% FROM THE DUE DATE OF THE ANNUAL INSTALLMENTS UNTIL
AUGUST 13, 1937, THE DATE WHEN THE COMPLAINT WAS FILED, AND THEREAFTER
WITH INTEREST AT THE RATE OF 6% PER ANNUM UPON THE AGGREGATE OF SUCH
INSTALLMENTS AND INTEREST ALREADY ACCRUED. 

ONE OF THE DEFENSES TO THE PETITION FOR MANDAMUS IN THE DISTRICT
COURT WAS THAT UNDER OKLAHOMA LAW A COUNTY IS WITHOUT AUTHORITY TO LEVY
AND COLLECT A TAX IN ONE YEAR TO PAY IMPROVEMENT ASSESSMENTS WHICH
BECAME DUE IN AN EARLIER YEAR.  THIS DEFENSE WAS URGED ON APPEAL TO THE
CIRCUIT COURT OF APPEALS WHICH OVERRULED IT AND AFFIRMED THE JUDGMENT
OF THE DISTRICT COURT, 137 F.2D 383, AFTER AN EXAMINATION OF THE
OKLAHOMA AUTHORITIES, INCLUDING INDEPENDENT SCHOOL DISTRICT NO. 39 V.
EXCHANGE NATIONAL CO., 164 OKLA. 176, 23 P.2D 210; FIRST NATIONAL BANK
V. BOARD OF EDUCATION, 174 OKLA. 164, 49 P.2D 1077; BOARD OF EDUCATION
V. JOHNSTON, 189 OKLA. 172, 115 P.2D 132, AND WILSON V. CITY OF HOLLIS,
DECIDED BY THE OKLAHOMA SUPREME COURT ON OCTOBER 6, 1942 AND NOT
OFFICIALLY REPORTED.  THE COURT OF APPEALS FOUND NONE OF THESE CASES TO
BE PRECISELY IN POINT BUT CONCLUDED THAT THE SUPREME COURT OF OKLAHOMA
HAD CONSISTENTLY AND POINTEDLY AVOIDED THE ANNOUNCEMENT OF THE RULE
CONTENDED FOR.  IT ACCORDINGLY HELD THAT THE DISTRICT COURT HAD
CORRECTLY DIRECTED TAX LEVIES TO PROVIDE FOR PAYMENT, FROM THE GENERAL
TAX FUND, OF THE OVERDUE INSTALLMENTS OF THE IMPROVEMENT ASSESSMENTS,
WITH INTEREST AS PRESCRIBED. 

PETITIONERS FILED A TIMELY PETITION FOR REHEARING WHICH WAS DENIED ON
SEPTEMBER 1, 1943.  ON DECEMBER 17, 1943, PETITIONERS MOVED FOR LEAVE
TO FILE A SECOND PETITION FOR REHEARING WHICH THE CIRCUIT COURT OF
APPEALS DENIED.  IN THEIR SECOND PETITION, PETITIONERS BROUGHT TO THE
ATTENTION OF THE COURT AND RELIED UPON AN OPINION OF THE SUPREME COURT
OF OKLAHOMA IN WILSON V. CITY OF HOLLIS, OF OCTOBER 19, 1943,  - OKLA.
, 142 P.2D 633, WHICH HAD SUPERSEDED ITS EARLIER OPINION ON WHICH THE
CIRCUIT COURT OF APPEALS HAD RELIED IN ITS OPINION IN THIS CASE. 
PETITIONERS CONTENDED THAT BY ITS LATER OPINION THE SUPREME COURT OF
OKLAHOMA HAD DETERMINED THAT OKLAHOMA LAW DID NOT AUTHORIZE THE LEVY OF
A GENERAL FUND TAX TO PAY ASSESSMENT INSTALLMENTS WHICH FELL DUE IN
PRIOR YEARS, BUT THAT SUCH INSTALLMENTS COULD BE PAID ONLY FROM A
SINKING FUND LEVY, AND THAT NO STATUTORY PENALTIES OR ADDITIONAL
INTEREST FOR DELINQUENCY COULD BE COLLECTED. 

IN ITS SECOND OPINION THE SUPREME COURT OF OKLAHOMA REEXAMINED IN
DETAIL THE MODE OF ENFORCING PAST DUE INSTALLMENTS OF IMPROVEMENT
ASSESSMENTS AGAINST THE PROPERTY OF MUNICIPALITIES AND COUNTIES IN
OKLAHOMA.  IT DIFFERENTIATED BETWEEN THE LIABILITY OF MUNICIPALLY OWNED
AND PRIVATELY OWNED PROPERTY LOCATED WITHIN IMPROVEMENT DISTRICTS, AND
IT APPEARS TO HAVE HELD, WITH RESPECT TO THE FORMER, THAT UNDER THE
APPLICABLE PROVISIONS OF THE OKLAHOMA STATUTES MANDAMUS TO ENFORCE THE
LEVY OF A GENERAL FUND TAX WILL LIE ONLY IN THE YEAR IN WHICH THE
ASSESSMENT INSTALLMENT FALLS DUE, THAT MONEY FROM THE GENERAL FUND
CANNOT BE APPLIED TO THE PAYMENT OF OBLIGATIONS OF A PRIOR FISCAL YEAR,
AND THAT "NO DELINQUENCY THAT WILL CARRY WITH IT ADDITIONAL INTEREST OR
PENALTY CAN ACCRUE AGAINST PUBLIC PROPERTY."  IT SAID THAT JUDGMENT
COULD BE RENDERED AGAINST A COUNTY OR MUNICIPALITY FOR PAST DUE
INSTALLMENTS WHICH COULD BE PAID AS ARE OTHER JUDGMENTS AGAINST A
COUNTY OR MUNICIPALITY UNDER OKLA. CONST. ART. 10, SEC. 28, AND 62 O.S.
1941, SEC. 431, ET SEQ., I. E., IN THREE ANNUAL INSTALLMENTS OUT OF
SINKING FUND LEVIES.  IN ANNOUNCING THESE CONCLUSIONS THE SUPREME COURT
OF OKLAHOMA STATED THAT IT FOUND CONFUSION ARISING OUT OF ITS DECISIONS
ON THIS SUBJECT, AND THAT IT WAS FORCED TO REEXAMINE ITS EARLIER
DECISIONS, INCLUDING SOME OF THOSE ON WHICH THE CIRCUIT COURT OF
APPEALS HAD RELIED IN DECIDING THIS CASE, TO DIFFERENTIATE SOME, AND TO
BRING OTHERS INTO CONFORMITY WITH ITS CONCLUSIONS ANNOUNCED IN THE
WILSON CASE.  IN PARTICULAR IT DECLARED THAT INDEPENDENT SCHOOL
DISTRICT NO. 39 V. EXCHANGE NATIONAL CO., SUPRA, AND FIRST NATIONAL
BANK V. BOARD OF EDUCATION, SUPRA, WERE IN PART OVERRULED. 

STATE LAW IS THE CONTROLLING RULE OF DECISION IN THIS CASE AS TO BOTH
SUBSTANTIVE AND PROCEDURAL RIGHTS OF THE PARTIES.  ERIE R. CO. V.
TOMPKINS, 304 U.S. 64; FEDERAL RULES OF CIVIL PROCEDURE, RULES 69(A),
81(B), 28 U.S.C. FOLLOWING SEC. 723(C).  IT IS THE DUTY OF THE FEDERAL
APPELLATE COURTS, AS WELL AS THE TRIAL COURT, TO ASCERTAIN AND APPLY
THE STATE LAW WHERE, AS IN THIS CASE, IT CONTROLS DECISION.  MEREDITH
V. WINTER HAVEN, 320 U.S. 228.  AND A JUDGMENT OF A FEDERAL COURT RULED
BY STATE LAW AND CORRECTLY APPLYING THAT LAW AS AUTHORITATIVELY
DECLARED BY THE STATE COURTS WHEN THE JUDGMENT WAS RENDERED, MUST BE
REVERSED ON APPELLATE REVIEW IF IN THE MEANTIME THE STATE COURTS HAVE
DISAPPROVED OF THEIR FORMER RULINGS AND ADOPTED DIFFERENT ONES.  "UNTIL
SUCH TIME AS A CASE IS NO LONGER SUB JUDICE, THE DUTY RESTS UPON
FEDERAL COURTS TO APPLY STATE LAW UNDER THE RULES OF DECISION STATUTE
IN ACCORDANCE WITH THE THEN CONTROLLING DECISION OF THE HIGHEST STATE
COURT."  VANDENBARK V. OWENS-ILLINOIS CO., 311 U.S. 538, 543. 

THE SECOND OPINION OF THE OKLAHOMA SUPREME COURT IN THE WILSON CASE
HAS AT LEAST RAISED SUCH DOUBT AS TO THE APPLICABLE OKLAHOMA LAW AS TO
REQUIRE ITS REEXAMINATION IN THE LIGHT OF THAT OPINION AND OF LATER
DECISIONS OF THE SUPREME COURT OF OKLAHOMA ON WHICH RESPONDENTS RELY,
BEFORE PRONOUNCEMENT OF A FINAL JUDGMENT IN THE CASE BY THE FEDERAL
COURTS.  THAT DOUBT IS NOT TO BE RESOLVED IN THE FIRST INSTANCE BY THIS
COURT.  WE HAVE OFTEN HAD OCCASION TO POINT OUT THE IMPORTANCE TO THE
ORDERLY JUDICIAL ADMINISTRATION OF STATE LAWS IN THE FEDERAL COURTS
THAT QUESTIONS OF STATE LAW REQUIRED TO BE DECIDED HERE SHOULD FIRST BE
CONSIDERED AND DECIDED BY THE STATE OR FEDERAL COURT FROM WHICH THE
CASE IS BROUGHT TO THIS COURT FOR REVIEW.  DORCHY V. KANSAS, 264 U.S.
286, 290-91; MISSOURI EX REL. WABASH RY. CO. V. PUBLIC SERVICE COMM'N,
273 U.S. 126, 131; RUHLIN V. NEW YORK LIFE INS. CO., 304 U.S. 202, 206
7; NEW YORK EX REL. WHITMAN V. WILSON, 318 U.S. 688, 690-91.  THE
DECISION OF THE HIGHEST COURT OF A STATE ON MATTERS OF STATE LAW ARE IN
GENERAL CONCLUSIVE UPON US, AND ORDINARILY WE ACCEPT AND THEREFORE DO
NOT REVIEW, SAVE IN EXCEPTIONAL CASES, THE CONSIDERED DETERMINATION OF
QUESTIONS OF STATE LAW BY THE INTERMEDIATE FEDERAL APPELLATE COURTS,
CF. RUHLIN V. NEW YORK LIFE INS. CO., SUPRA.  WHEN WE ARE CALLED UPON
TO DECIDE THEM, THE EXPRESSION OF THE VIEWS OF THE JUDGES OF THOSE
COURTS, WHO ARE FAMILIAR WITH THE INTRICACIES AND TRENDS OF LOCAL LAW
AND PRACTICE, IF NOT INDISPENSABLE, IS AT LEAST A HIGHLY DESIRABLE AND
IMPORTANT AID TO OUR DETERMINATION OF STATE LAW QUESTIONS.  THIS COURT
WILL NOT ORDINARILY DECIDE THEM WITHOUT THAT AID WHERE THEY MAY
CONVENIENTLY FIRST BE DECIDED BY THE COURT WHOSE JUDGMENT WE ARE CALLED
UPON TO REVIEW.  SEE, E. G., RUHLIN V. NEW YORK LIFE INS. CO., SUPRA;
ROSENTHAL V. NEW YORK LIFE INS. CO., 304 U.S. 263, 264; WEST V. A.T. &
T. CO., 311 U.S. 223, 241; KLAXON CO. V. STENTOR CO., 313 U.S. 487,
497; MEREDITH V. WINTER HAVEN, SUPRA. 

ACCORDINGLY, WITHOUT PASSING ON ANY OF THE OTHER CONTENTIONS OF THE
PARTIES, WE VACATE THE JUDGMENT BELOW AND REMAND THE CAUSE TO THE
CIRCUIT COURT OF APPEALS SO THAT IT MAY RECONSIDER ITS DECISION IN THE
LIGHT OF THE DECISIONS AND OPINIONS OF THE SUPREME COURT OF OKLAHOMA IN
THE WILSON AND LATER CASES.  SO ORDERED. 
..END :



















HAZEL-ATLAS CO. V. HARTFORD CO., 322 U.S. 238 


NO. 398.  ARGUED FEBRUARY 9, 10, 1944.  - DECIDED MAY 15, 1944.  - 137
F.2D 764, REVERSED. 


UPON APPEAL FROM A JUDGMENT OF THE DISTRICT COURT DENYING RELIEF IN A
SUIT BY HARTFORD AGAINST HAZEL FOR INFRINGEMENT OF A PATENT, THE
CIRCUIT COURT OF APPEALS IN 1932 HELD HARTFORD'S PATENT VALID AND
INFRINGED, AND UPON ITS MANDATE THE DISTRICT COURT ENTERED JUDGMENT
ACCORDINGLY.  IN 1941, HAZEL COMMENCED IN THE CIRCUIT COURT OF APPEALS
THIS PROCEEDING, WHEREIN IT CONCLUSIVELY APPEARED THAT HARTFORD,
THROUGH PUBLICATION OF AN ARTICLE PURPORTING TO HAVE BEEN WRITTEN BY A
DISINTERESTED PERSON, HAD PERPETRATED A FRAUD ON THE PATENT OFFICE IN
OBTAINING THE PATENT AND ON THE CIRCUIT COURT OF APPEALS ITSELF IN THE
INFRINGEMENT SUIT.  UPON REVIEW HERE OF AN ORDER OF THE CIRCUIT COURT
OF APPEALS DENYING RELIEF, HELD: 

1.  UPON THE RECORD, THE CIRCUIT COURT OF APPEALS HAD THE POWER AND
THE DUTY TO VACATE ITS 1932 JUDGMENT AND TO GIVE THE DISTRICT COURT
APPROPRIATE DIRECTIONS.  P. 247. 

(A)  EVEN IF HAZEL FAILED TO EXERCISE DUE DILIGENCE TO UNCOVER THE
FRAUD, RELIEF MAY NOT BE DENIED ON THAT GROUND ALONE, SINCE PUBLIC
INTERESTS ARE INVOLVED.  P. 246. 

(B)  IN THE CIRCUMSTANCES, HARTFORD MAY NOT BE HEARD TO DISPUTE THE
EFFECTIVENESS NOR TO ASSERT THE TRUTH OF THE ARTICLE.  P. 247. 

2.  THE CIRCUIT COURT OF APPEALS IS DIRECTED TO SET ASIDE ITS 1932
JUDGMENT, RECALL ITS 1932 MANDATE, DISMISS HARTFORD'S APPEAL, AND TO
ISSUE A MANDATE TO THE DISTRICT COURT DIRECTING IT TO SET ASIDE ITS
JUDGMENT ENTERED PURSUANT TO THE 1932 MANDATE, TO REINSTATE ITS
ORIGINAL JUDGMENT DENYING RELIEF TO HARTFORD, AND TO TAKE SUCH
ADDITIONAL ACTION AS MAY BE NECESSARY AND APPROPRIATE.  P. 250. 

HAZEL-ATLAS GLASS CO. V. HARTFORD-EMPIRE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 320 U.S. 732, TO REVIEW AN ORDER OF THE CIRCUIT COURT OF
APPEALS DENYING RELIEF IN A BILL OF REVIEW PROCEEDING COMMENCED IN THAT
COURT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE POWER OF A CIRCUIT COURT OF APPEALS, UPON
PROOF THAT FRAUD WAS PERPETRATED ON IT BY A SUCCESSFUL LITIGANT, TO
VACATE ITS OWN JUDGMENT ENTERED AT A PRIOR TERM AND DIRECT VACATION OF
A DISTRICT COURT'S DECREE ENTERED PURSUANT TO THE CIRCUIT COURT OF
APPEALS' MANDATE. 

HAZEL-ATLAS COMMENCED THE PRESENT SUIT IN NOVEMBER, 1941, BY FILING
IN THE THIRD CIRCUIT COURT OF APPEALS A PETITION FOR LEAVE TO FILE A
BILL OF REVIEW IN THE DISTRICT COURT TO SET ASIDE A JUDGMENT ENTERED BY
THAT COURT AGAINST HAZEL IN 1932 PURSUANT TO THE THIRD CIRCUIT COURT OF
APPEALS' MANDATE.  HAZEL CONTENDED THAT THE CIRCUIT COURT OF APPEALS'
JUDGMENT HAD BEEN OBTAINED BY FRAUD AND SUPPORTED THIS CHARGE WITH
AFFIDAVITS AND EXHIBITS.  HARTFORD-EMPIRE, IN WHOSE FAVOR THE
CHALLENGED JUDGMENT HAD BEEN ENTERED, DID NOT QUESTION THE APPELLATE
COURT'S POWER TO CONSIDER THE PETITION, BUT FILED COUNTER AFFIDAVITS
AND EXHIBITS.  AFTER A HEARING THE CIRCUIT COURT CONCLUDED THAT SINCE
THE ALLEGED FRAUD HAD BEEN PRACTICED ON IT RATHER THAN THE DISTRICT
COURT IT WOULD PASS ON THE ISSUES OF FRAUD ITSELF INSTEAD OF SENDING
THE CASE TO THE DISTRICT COURT.  AN ORDER WAS THEREUPON ENTERED DENYING
THE PETITION AS FRAMED BUT GRANTING HAZEL LEAVE TO AMEND THE PRAYER OF
THE PETITION TO ASK THAT THE CIRCUIT COURT ITSELF HEAR AND DETERMINE
THE ISSUE OF FRAUD.  HAZEL ACCORDINGLY AMENDED, PRAYING THAT THE 1932
JUDGMENTS AGAINST IT BE VACATED AND FOR SUCH OTHER RELIEF AS MIGHT BE
JUST.  HARTFORD THEN REPLIED AND FILED ADDITIONAL EXHIBITS AND
AFFIDAVITS.  THE FOLLOWING FACTS WERE SHOWN BY THE RECORD WITHOUT
DISPUTE. 

IN 1926 HARTFORD HAD PENDING AN APPLICATION FOR A PATENT ON A MACHINE
WHICH UTILIZED A METHOD OF POURING GLASS INTO MOLDS KNOWN AS "GOB
FEEDING."  THE APPLICATION, ACCORDING TO THE CIRCUIT COURT, "WAS
CONFRONTED WITH APPARENTLY INSURMOUNTABLE PATENT OFFICE OPPOSITION." 
TO HELP ALONG THE APPLICATION, CERTAIN OFFICIALS AND ATTORNEYS OF
HARTFORD DETERMINED TO HAVE PUBLISHED IN A TRADE JOURNAL AN ARTICLE
SIGNED BY AN OSTENSIBLY DISINTERESTED EXPERT WHICH WOULD DESCRIBE THE
"GOB FEEDING" DEVICE AS A REMARKABLE ADVANCE IN THE ART OF FASHIONING
GLASS BY MACHINE.  ACCORDINGLY THESE OFFICIALS PREPARED AN ARTICLE
ENTITLED "INTRODUCTION OF AUTOMATIC GLASS WORKING MACHINERY; HOW
RECEIVED BY ORGANIZED LABOR," WHICH REFERRED TO "GOB FEEDING" AS ONE OF
THE TWO "REVOLUTIONARY DEVICES" WITH WHICH WORKMEN SKILLED IN BOTTLE
BLOWING HAD BEEN CONFRONTED SINCE THEY HAD ORGANIZED.  AFTER
UNSUCCESSFULLY ATTEMPTING TO PERSUADE THE PRESIDENT OF THE BOTTLE
BLOWERS' ASSOCIATION TO SIGN THIS ARTICLE, THE HARTFORD OFFICIALS,
TOGETHER WITH OTHER PERSONS CALLED TO THEIR AID, PROCURED THE SIGNATURE
OF ONE WILLIAM P. CLARKE, WIDELY KNOWN AS NATIONAL PRESIDENT OF THE
FLINT GLASS WORKERS' UNION.  SUBSEQUENTLY, IN JULY 1926, THE ARTICLE
WAS PUBLISHED IN THE NATIONAL GLASS BUDGET, AND IN OCTOBER 1926 IT WAS
INTRODUCED AS PART OF THE RECORD IN SUPPORT OF THE PENDING APPLICATION
IN THE PATENT OFFICE.  JANUARY 3, 1928, THE PATENT OFFICE GRANTED THE
APPLICATION AS PATENT NO. 1,655,391. 

ON JUNE 6, 1928, HARTFORD BROUGHT SUIT IN THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA CHARGING THAT HAZEL WAS INFRINGING
THIS "GOB FEEDING" PATENT, AND PRAYING FOR AN INJUNCTION AGAINST
FURTHER INFRINGEMENT AND FOR AN ACCOUNTING FOR PROFITS AND DAMAGES. 
WITHOUT REFERRING TO THE CLARKE ARTICLE, WHICH WAS IN THE RECORD ONLY
AS PART OF THE "FILE-WRAPPER" HISTORY, AND WHICH APPARENTLY WAS NOT
THEN EMPHASIZED BY COUNSEL, THE DISTRICT COURT DISMISSED THE BILL ON
THE GROUND THAT NO INFRINGEMENT HAD BEEN PROVED.  39 F.2D 111. 
HARTFORD APPEALED.  IN THEIR BRIEF FILED WITH THE CIRCUIT COURT OF
APPEALS, THE ATTORNEYS FOR HARTFORD, ONE OF WHOM HAD PLAYED A PART IN
GETTING THE SPURIOUS ARTICLE PREPARED FOR PUBLICATION, DIRECTED THE
COURT'S ATTENTION TO "THE ARTICLE BY MR. WILLIAM CLARKE, FORMER
PRESIDENT OF THE GLASS WORKERS' UNION."  THE REFERENCE WAS NOT WITHOUT
EFFECT.  QUOTING COPIOUSLY FROM THE ARTICLE TO SHOW THAT "LABOR
ORGANIZATIONS OF PRACTICAL WORKMEN RECOGNIZED" THE "NEW AND
DIFFERENTIATING ELEMENTS" OF THE "GOB FEEDING" PATENT OWNED BY
HARTFORD, THE CIRCUIT COURT ON MAY 5, 1932, HELD THE PATENT VALID AND
INFRINGED, REVERSED THE DISTRICT COURT'S JUDGMENT, AND DIRECTED THAT
COURT TO ENTER A DECREE ACCORDINGLY.  59 F.2D 399, 403, 404. 

AT THE TIME OF THE TRIAL IN THE DISTRICT COURT IN 1929, WHERE THE
ARTICLE SEEMINGLY PLAYED NO IMPORTANT PART, THE ATTORNEYS OF HAZEL
RECEIVED INFORMATION THAT BOTH CLARKE AND ONE OF HARTFORD'S LAWYERS HAD
SEVERAL YEARS PREVIOUSLY ADMITTED THAT THE HARTFORD LAWYER WAS THE TRUE
AUTHOR OF THE SPURIOUS PUBLICATION.  HAZEL'S ATTORNEYS DID NOT AT THAT
TIME ATTEMPT TO VERIFY THE TRUTH OF THE HEARSAY STORY OF THE ARTICLE'S
AUTHORSHIP, BUT RELIED UPON OTHER DEFENSES WHICH PROVED SUCCESSFUL. 
AFTER THE OPINION OF THE CIRCUIT COURT CAME DOWN ON MAY 5, 1932,
QUOTING THE SPURIOUS ARTICLE AND REVERSING THE DECREE OF THE DISTRICT
COURT, HAZEL HIRED INVESTIGATORS FOR THE PURPOSE OF VERIFYING THE
HEARSAY BY ADMISSIBLE EVIDENCE.  ONE OF THESE INVESTIGATORS INTERVIEWED
CLARKE IN TOLEDO, OHIO, ON MAY 13 AND AGAIN ON MAY 24.  IN EACH
INTERVIEW CLARKE INSISTED THAT HE WROTE THE ARTICLE AND WOULD SO SWEAR
IF SUMMONED.  IN THE SECOND INTERVIEW THE INVESTIGATOR ASKED CLARKE TO
SIGN A STATEMENT TELLING IN DETAIL HOW THE ARTICLE WAS PREPARED, AND
FURTHER ASKED TO SEE CLARKE'S FILES.  CLARKE REPLIED THAT HE WOULD NOT
"STULTIFY" HIMSELF BY SIGNING ANY "STATEMENT OR AFFIDAVIT"; AND THAT HE
WOULD SHOW THE RECORDS TO NO ONE UNLESS COMPELLED BY A SUBPOENA.  AT
THE SAME TIME, HE REINFORCED HIS CLAIM OF AUTHORSHIP BY ASSERTING THAT
HE HAD SPENT SEVEN WEEKS IN PREPARING THE ARTICLE. 

BUT UNKNOWN TO HAZEL'S INVESTIGATOR, A REPRESENTATIVE OF HARTFORD,
SECRETLY INFORMED OF THE INVESTIGATOR'S VIEW THAT HAZEL'S ONLY CHANCE
OF REOPENING THE CASE "WAS TO GET AN AFFIDAVIT FROM SOMEONE, TO THE
EFFECT THAT THIS ARTICLE WAS WRITTEN" BY HARTFORD'S ATTORNEY, ALSO HAD
TRAVELED TO TOLEDO.  HARTFORD'S REPRESENTATIVE FIRST WENT TO TOLEDO AND
TALKED TO CLARKE ON MAY 10, THREE DAYS BEFORE HAZEL'S INVESTIGATOR
FIRST INTERVIEWED CLARKE; AND HE RETURNED TO TOLEDO AGAIN ON MAY 22 FOR
A FIVE-DAY STAY.  THUS AT THE TIME OF THE INVESTIGATOR'S SECOND
INTERVIEW WITH CLARKE ON MAY 24, REPRESENTATIVES OF BOTH COMPANIES WERE
IN TOUCH WITH CLARKE IN TOLEDO.  BUT THOUGH HARTFORD'S REPRESENTATIVE
KNEW THE INVESTIGATOR WAS THERE, THE LATTER WAS UNAWARE OF THE PRESENCE
OF THE HARTFORD REPRESENTATIVE.  ON MAY 24, HAZEL'S INVESTIGATOR
REPORTED FAILURE; THE SAME DAY, HARTFORD'S MAN REPORTED "VERY
SUCCESSFUL RESULTS."  FOUR DAYS LATER, ON MAY 28, HARTFORD'S
REPRESENTATIVE REPORTED HIS "SUCCESS" MORE FULLY.  CLARKE, HE SAID, HAD
BEEN OF "GREAT ASSISTANCE" AND HARTFORD WAS IN A "MOST SATISFACTORY
POSITION"; IT DID NOT "SEEM WISE TO DISTRIBUTE COPIES OF ALL THE
PAPERS" THE REPRESENTATIVE THEN HAD OR TO "GO INTO MUCH DETAIL IN
CORRESPONDENCE"; AND HARTFORD WAS "QUITE INDEBTED TO MR. CLARKE" WHO
"MIGHT EASILY HAVE CAUSED US A LOT OF TROUBLE.  THIS SHOULD NOT BE
FORGOTTEN.  ...  "  AMONG THE "PAPERS" WHICH THE REPRESENTATIVE HAD
PROCURED FROM CLARKE WAS AN AFFIDAVIT SIGNED BY CLARKE STATING THAT HE,
CLARKE, HAD "SIGNED THE ARTICLE AND RELEASED IT FOR PUBLICATION."  THE
AFFIDAVIT WAS DATED MAY 24 - THE VERY DAY THAT CLARKE HAD TOLD HAZEL'S
INVESTIGATOR HE WOULD NOT "STULTIFY" HIMSELF BY SIGNING ANY AFFIDAVIT
AND WOULD PRODUCE HIS PAPERS FOR NO ONE EXCEPT UPON SUBPOENA. 

SHORTLY AFTERWARD HAZEL CAPITULATED.  IT PAID HARTFORD $1,000,000 AND
ENTERED INTO CERTAIN LICENSING AGREEMENTS.  THE DAY FOLLOWING THE
SETTLEMENT, HARTFORD'S REPRESENTATIVE TRAVELED BACK TO TOLEDO AND
TALKED TO CLARKE.  AT THIS MEETING CLARKE ASKED FOR $10,000. 
HARTFORD'S REPRESENTATIVE TOLD HIM THAT HE WANTED TOO MUCH MONEY AND
THAT HARTFORD WOULD COMMUNICATE WITH HIM FURTHER.  A FEW DAYS LATER THE
REPRESENTATIVE PAID CLARKE $500 IN CASH; AND ABOUT A MONTH LATER
DELIVERED TO CLARKE, AT SOME PLACE IN PITTSBURGH WHICH HE HAS SWORN HE
CANNOT REMEMBER, AN ADDITIONAL $7,500 IN CASH.  THE REASON GIVEN FOR
PAYING THESE SUMS WAS THAT HARTFORD FELT A CERTAIN MORAL OBLIGATION TO
DO SO, ALTHOUGH HARTFORD'S AFFIDAVITS DENY ANY PRIOR AGREEMENT TO PAY
CLARKE FOR HIS SERVICES IN CONNECTION WITH THE ARTICLE. 

INDISPUTABLE PROOF OF THE FOREGOING FACTS WAS, FOR THE FIRST TIME,
FULLY BROUGHT TO LIGHT IN 1941 BY CORRESPONDENCE FILES, EXPENSE
ACCOUNTS AND TESTIMONY INTRODUCED AT THE TRIAL OF THE UNITED STATES V.
HARTFORD-EMPIRE COMPANY ET AL., 46 F.SUPP.  541, AN ANTI-TRUST
PROSECUTION BEGUN DECEMBER 11, 1939.  ON THE BASIS OF THE DISCLOSURES
AT THIS TRIAL HAZEL COMMENCED THE PRESENT SUIT. 

UPON CONSIDERATION OF WHAT IT PROPERLY TERMED THIS "SORDID STORY,"
THE CIRCUIT COURT, ONE JUDGE DISSENTING, HELD, FIRST, THAT THE FRAUD
WAS NOT NEWLY DISCOVERED; SECOND, THAT THE SPURIOUS PUBLICATION, THOUGH
QUOTED IN THE 1932 OPINION, WAS NOT THE PRIMARY BASIS OF THE 1932
DECISION; AND THIRD, THAT IN ANY EVENT IT LACKED THE POWER TO SET ASIDE
THE DECREE OF THE DISTRICT COURT BECAUSE OF THE EXPIRATION OF THE TERM
DURING WHICH THE 1932 DECISION HAD BEEN RENDERED.  ACCORDINGLY THE
COURT REFUSED TO GRANT THE RELIEF PRAYED BY HAZEL. 

FEDERAL COURTS, BOTH TRIAL AND APPELLATE, LONG AGO ESTABLISHED THE
GENERAL RULE THAT THEY WOULD NOT ALTER OR SET ASIDE THEIR JUDGMENTS
AFTER THE EXPIRATION OF THE TERM AT WHICH THE JUDGMENTS WERE FINALLY
ENTERED.  BRONSON V. SCHULTEN, 104 U.S. 410.  THIS SALUTARY GENERAL
RULE SPRINGS FROM THE BELIEF THAT IN MOST INSTANCES SOCIETY IS BEST
SERVED BY PUTTING AN END TO LITIGATION AFTER A CASE HAS BEEN TRIED AND
JUDGMENT ENTERED.  THIS HAS NOT MEANT, HOWEVER, THAT A JUDGMENT FINALLY
ENTERED HAS EVER BEEN REGARDED AS COMPLETELY IMMUNE FROM IMPEACHMENT
AFTER THE TERM.  FROM THE BEGINNING THERE HAS EXISTED ALONGSIDE THE
TERM RULE A RULE OF EQUITY TO THE EFFECT THAT UNDER CERTAIN
CIRCUMSTANCES, ONE OF WHICH IS AFTER-DISCOVERED FRAUD, RELIEF WILL BE
GRANTED AGAINST JUDGMENTS REGARDLESS OF THE TERM OF THEIR ENTRY. 
MARINE INSURANCE CO. V. HODGSON, 7 CRANCH 332; MARSHALL V. HOLMES, 141
U.S. 589.  THIS EQUITY RULE, WHICH WAS FIRMLY ESTABLISHED IN ENGLISH
PRACTICE LONG BEFORE THE FOUNDATION OF OUR REPUBLIC, THE COURTS HAVE
DEVELOPED AND FASHIONED TO FULFILL A UNIVERSALLY RECOGNIZED NEED FOR
CORRECTING INJUSTICES WHICH, IN CERTAIN INSTANCES, ARE DEEMED
SUFFICIENTLY GROSS TO DEMAND A DEPARTURE FROM RIGID ADHERENCE TO THE
TERM RULE.  OUT OF DEFERENCE TO THE DEEP-ROOTED POLICY IN FAVOR OF THE
REPOSE OF JUDGMENTS ENTERED DURING PAST TERMS, COURTS OF EQUITY HAVE
BEEN CAUTIOUS IN EXERCISING THEIR POWER OVER SUCH JUDGMENTS.  UNITED
STATES V. THROCKMORTON, 98 U.S. 61.  BUT WHERE THE OCCASION HAS
DEMANDED, WHERE ENFORCEMENT OF THE JUDGMENT IS "MANIFESTLY
UNCONSCIONABLE," PICKFORD V. TALBOTT, 225 U.S. 651, 657, THEY HAVE
WIELDED THE POWER WITHOUT HESITATION.  FN1  LITIGANTS WHO HAVE SOUGHT
TO INVOKE THIS EQUITY POWER CUSTOMARILY HAVE DONE SO BY BILLS OF REVIEW
OR BILLS IN THE NATURE OF BILLS OF REVIEW, OR BY ORIGINAL PROCEEDINGS
TO ENJOIN ENFORCEMENT OF A JUDGMENT.  FN2  AND IN CASES WHERE COURTS
HAVE EXERCISED THE POWER, THE RELIEF GRANTED HAS TAKEN SEVERAL FORMS:
SETTING ASIDE THE JUDGMENT TO PERMIT A NEW TRIAL, ALTERING THE TERMS OF
THE JUDGMENT, OR RESTRAINING THE BENEFICIARIES OF THE JUDGMENT FROM
TAKING ANY BENEFIT WHATEVER FROM IT.  FN3  BUT WHATEVER FORM THE RELIEF
HAS TAKEN IN PARTICULAR CASES, THE NET RESULT IN EVERY CASE HAS BEEN
THE SAME:  WHERE THE SITUATION HAS REQUIRED, THE COURT HAS, IN SOME
MANNER, DEVITALIZED THE JUDGMENT EVEN THOUGH THE TERM AT WHICH IT WAS
ENTERED HAD LONG SINCE PASSED AWAY. 

EVERY ELEMENT OF THE FRAUD HERE DISCLOSED DEMANDS THE EXERCISE OF THE
HISTORIC POWER OF EQUITY TO SET ASIDE FRAUDULENTLY BEGOTTEN JUDGMENTS. 
THIS IS NOT SIMPLY A CASE OF A JUDGMENT OBTAINED WITH THE AID OF A
WITNESS WHO, ON THE BASIS OF AFTER-DISCOVERED EVIDENCE, IS BELIEVED
POSSIBLY TO HAVE BEEN GUILTY OF PERJURY.  HERE, EVEN IF WE CONSIDER
NOTHING BUT HARTFORD'S SWORN ADMISSIONS, WE FIND A DELIBERATELY PLANNED
AND CAREFULLY EXECUTED SCHEME TO DEFRAUD NOT ONLY THE PATENT OFFICE BUT
THE CIRCUIT COURT OF APPEALS.  CF. MARSHALL V. HOLMES, SUPRA.  PROOF OF
THE SCHEME, AND OF ITS COMPLETE SUCCESS UP TO DATE, IS CONCLUSIVE.  CF.
UNITED STATES V. THROCKMORTON, SUPRA.  AND NO EQUITIES HAVE INTERVENED
THROUGH TRANSFER OF THE FRAUDULENTLY PROCURED PATENT OR JUDGMENT TO AN
INNOCENT PURCHASER.  CF. IBID.; HOPKINS V. HEBARD, 235 U.S. 287. 

THE CIRCUIT COURT DID NOT HOLD THAT HARTFORD'S FRAUD FELL SHORT OF
THAT WHICH PROMPTS EQUITABLE INTERVENTION, BUT THOUGHT HAZEL HAD NOT
EXERCISED PROPER DILIGENCE IN UNCOVERING THE FRAUD AND THAT THIS SHOULD
STAND IN THE WAY OF ITS OBTAINING RELIEF.  WE CANNOT EASILY UNDERSTAND
HOW, UNDER THE ADMITTED FACTS, HAZEL SHOULD HAVE BEEN EXPECTED TO DO
MORE THAN IT DID TO UNCOVER THE FRAUD.  BUT EVEN IF HAZEL DID NOT
EXERCISE THE HIGHEST DEGREE OF DILIGENCE, HARTFORD'S FRAUD CANNOT BE
CONDONED FOR THAT REASON ALONE.  THIS MATTER DOES NOT CONCERN ONLY
PRIVATE PARTIES.  THERE ARE ISSUES OF GREAT MOMENT TO THE PUBLIC IN A
PATENT SUIT.  MERCOID CORPORATION V. MID-CONTINENT INVESTMENT CO., 320
U.S. 661; MORTON SALT CO. V. G.S. SUPPIGER CO., 314 U.S. 488. 
FURTHERMORE, TAMPERING WITH THE ADMINISTRATION OF JUSTICE IN THE MANNER
INDISPUTABLY SHOWN HERE INVOLVES FAR MORE THAN AN INJURY TO A SINGLE
LITIGANT.  IT IS A WRONG AGAINST THE INSTITUTIONS SET UP TO PROTECT AND
SAFEGUARD THE PUBLIC, INSTITUTIONS IN WHICH FRAUD CANNOT COMPLACENTLY
BE TOLERATED CONSISTENTLY WITH THE GOOD ORDER OF SOCIETY.  SURELY IT
CANNOT BE THAT PRESERVATION OF THE INTEGRITY OF THE JUDICIAL PROCESS
MUST ALWAYS WAIT UPON THE DILIGENCE OF LITIGANTS.  THE PUBLIC WELFARE
DEMANDS THAT THE AGENCIES OF PUBLIC JUSTICE BE NOT SO IMPOTENT THAT
THEY MUST ALWAYS BE MUTE AND HELPLESS VICTIMS OF DECEPTION AND FRAUD. 

THE CIRCUIT COURT ALSO RESTED DENIAL OF RELIEF UPON THE CONCLUSION
THAT THE CLARKE ARTICLE WAS NOT "BASIC" TO THE COURT'S 1932 DECISION. 
WHETHER OR NOT IT WAS THE PRIMARY BASIS FOR THAT RULING, THE ARTICLE
DID IMPRESS THE COURT, AS SHOWN BY THE COURT'S OPINION.  DOUBTLESS IT
IS WHOLLY IMPOSSIBLE ACCURATELY TO APPRAISE THE INFLUENCE THAT THE
ARTICLE EXERTED ON THE JUDGES.  BUT WE DO NOT THINK THE CIRCUMSTANCES
CALL FOR SUCH AN ATTEMPTED APPRAISAL.  HARTFORD'S OFFICIALS AND LAWYERS
THOUGHT THE ARTICLE MATERIAL.  THEY CONCEIVED IT IN AN EFFORT TO
PERSUADE A HOSTILE PATENT OFFICE TO GRANT THEIR PATENT APPLICATION, AND
WENT TO CONSIDERABLE TROUBLE AND EXPENSE TO GET IT PUBLISHED.  HAVING
LOST THEIR INFRINGEMENT SUIT BASED ON THE PATENT IN THE DISTRICT COURT
WHEREIN THEY DID NOT SPECIFICALLY EMPHASIZE THE ARTICLE, THEY URGED THE
ARTICLE UPON THE CIRCUIT COURT AND PREVAILED.  THEY ARE IN NO POSITION
NOW TO DISPUTE ITS EFFECTIVENESS.  NEITHER SHOULD THEY NOW BE PERMITTED
TO ESCAPE THE CONSEQUENCES OF HARTFORD'S DECEPTIVE ATTRIBUTION OF
AUTHORSHIP TO CLARKE ON THE GROUND THAT WHAT THE ARTICLE STATED WAS
TRUE.  TRUTH NEEDS NO DISGUISE.  THE ARTICLE, EVEN IF TRUE, SHOULD HAVE
STOOD OR FALLEN UNDER THE ONLY TITLE IT COULD HONESTLY HAVE BEEN GIVEN
THAT OF A BRIEF IN BEHALF OF HARTFORD, PREPARED BY HARTFORD'S AGENTS,
ATTORNEYS, AND COLLABORATORS. 

WE HAVE, THEN, A CASE IN WHICH UNDISPUTED EVIDENCE FILED WITH THE
CIRCUIT COURT OF APPEALS IN A BILL OF REVIEW PROCEEDING REVEALS SUCH
FRAUD ON THAT COURT AS DEMANDS, UNDER SETTLED EQUITABLE PRINCIPLES, THE
INTERPOSITION OF EQUITY TO DEVITALIZE THE 1932 JUDGMENT DESPITE THE
EXPIRATION OF THE TERM AT WHICH THAT JUDGMENT WAS FINALLY ENTERED.  DID
THE CIRCUIT COURT HAVE THE POWER TO SET ASIDE ITS OWN 1932 JUDGMENT AND
TO DIRECT THE DISTRICT COURT LIKEWISE TO VACATE THE 1932 DECREE WHICH
IT ENTERED PURSUANT TO THE MANDATE BASED UPON THE CIRCUIT COURT'S
JUDGMENT?  COUNSEL FOR HARTFORD CONTEND NOT.  THEY CONCEDE THAT THE
DISTRICT COURT HAS THE POWER UPON PROPER PROOF OF FRAUD TO SET ASIDE
ITS 1932 DECREE IN A BILL OF REVIEW PROCEEDING, BUT NEVERTHELESS DENY
THAT THE CIRCUIT COURT POSSESSES A SIMILAR POWER FOR THE REASON THAT
THE TERM DURING WHICH ITS 1932 JUDGMENT WAS ENTERED HAD EXPIRED.  THE
QUESTION, THEN, IS NOT WHETHER RELIEF CAN BE GRANTED, BUT WHICH COURT
CAN GRANT IT. 

EQUITABLE RELIEF AGAINST FRAUDULENT JUDGMENTS IS NOT OF STATUTORY
CREATION.  IT IS A JUDICIALLY DEVISED REMEDY FASHIONED TO RELIEVE
HARDSHIPS WHICH, FROM TIME TO TIME, ARISE FROM A HARD AND FAST
ADHERENCE TO ANOTHER COURTMADE RULE, THE GENERAL RULE THAT JUDGMENTS
SHOULD NOT BE DISTURBED AFTER THE TERM OF THEIR ENTRY HAS EXPIRED. 
CREATED TO AVERT THE EVILS OF ARCHAIC RIGIDITY, THIS EQUITABLE
PROCEDURE HAS ALWAYS BEEN CHARACTERIZED BY FLEXIBILITY WHICH ENABLES IT
TO MEET NEW SITUATIONS WHICH DEMAND EQUITABLE INTERVENTION, AND TO
ACCORD ALL THE RELIEF NECESSARY TO CORRECT THE PARTICULAR INJUSTICES
INVOLVED IN THESE SITUATIONS.  IT WAS THIS FLEXIBILITY WHICH ENABLED
COURTS TO MEET THE PROBLEM RAISED WHEN LEAVE TO FILE A BILL OF REVIEW
WAS SOUGHT IN A COURT OF ORIGINAL JURISDICTION FOR THE PURPOSE OF
IMPEACHING A JUDGMENT WHICH HAD BEEN ACTED UPON BY AN APPELLATE COURT. 
SUCH A JUDGMENT, IT WAS SAID, WAS NOT SUBJECT TO IMPEACHMENT IN SUCH A
PROCEEDING BECAUSE A TRIAL COURT LACKS THE POWER TO DEVIATE FROM THE
MANDATE OF AN APPELLATE COURT.  THE SOLUTION EVOLVED BY THE COURTS IS A
PROCEDURE WHEREBY PERMISSION TO FILE THE BILL IS SOUGHT IN THE
APPELLATE COURT.  THE HEARING CONDUCTED BY THE APPELLATE COURT ON THE
PETITION, WHICH MAY BE FILED MANY YEARS AFTER THE ENTRY OF THE
CHALLENGED JUDGMENT, IS NOT JUST A CEREMONIAL GESTURE.  THE PETITION
MUST CONTAIN THE NECESSARY AVERMENTS, SUPPORTED BY AFFIDAVITS OR OTHER
ACCEPTABLE EVIDENCE; AND THE APPELLATE COURT MAY IN THE EXERCISE OF A
PROPER DISCRETION REJECT THE PETITION, IN WHICH CASE A BILL OF REVIEW
CANNOT BE FILED IN THE LOWER COURT.  NATIONAL BRAKE CO. V. CHRISTENSEN,
254 U.S. 425, 430-433. 

WE THINK THAT WHEN THIS COURT, A CENTURY AGO, APPROVED THIS PRACTICE
AND HELD THAT FEDERAL APPELLATE COURTS HAVE THE POWER TO PASS UPON, AND
HENCE TO GRANT OR DENY, PETITIONS FOR BILLS OF REVIEW EVEN THOUGH THE
PETITIONS BE PRESENTED LONG AFTER THE TERM OF THE CHALLENGED JUDGMENT
HAS EXPIRED, IT SETTLED THE PROCEDURAL QUESTION HERE INVOLVED. 
SOUTHARD V. RUSSELL, 16 HOW.  547.  FN4 TO REASON OTHERWISE WOULD BE TO
SAY THAT ALTHOUGH THE CIRCUIT COURT HAS THE POWER TO ACT AFTER THE TERM
FINALLY TO DENY RELIEF, IT HAS NOT THE POWER TO ACT AFTER THE TERM
FINALLY TO GRANT RELIEF.  IT WOULD, MOREOVER, BE TO SAY THAT EVEN IN A
CASE WHERE THE ALLEGED FRAUD WAS ON THE CIRCUIT COURT ITSELF, THE
RELEVANT FACTS AS TO THE FRAUD WERE AGREED UPON BY THE LITIGANTS, AND
THE CIRCUIT COURT CONCLUDED RELIEF MUST BE GRANTED, THAT COURT
NEVERTHELESS MUST SEND THE CASE TO THE DISTRICT COURT FOR DECISION. 
NOTHING IN REASON OR PRECEDENT REQUIRES SUCH A CUMBERSOME AND DILATORY
PROCEDURE.  INDEED THE WHOLE HISTORY OF EQUITABLE PROCEDURE, WITH THE
TRADITIONAL FLEXIBILITY WHICH HAS ENABLED THE COURTS TO GRANT ALL THE
RELIEF AGAINST JUDGMENTS WHICH THE EQUITIES REQUIRE, ARGUES AGAINST IT.
WE HOLD, THEREFORE, THAT THE CIRCUIT COURT ON THE RECORD HERE
PRESENTED  FN5 HAD BOTH THE DUTY AND THE POWER TO VACATE ITS OWN
JUDGMENT AND TO GIVE THE DISTRICT COURT APPROPRIATE DIRECTIONS. 

THE QUESTION REMAINS AS TO WHAT DISPOSITION SHOULD BE MADE OF THIS
CASE.  HARTFORD'S FRAUD, HIDDEN FOR YEARS BUT NOW ADMITTED, HAD ITS
GENESIS IN THE PLAN TO PUBLISH AN ARTICLE FOR THE DELIBERATE PURPOSE OF
DECEIVING THE PATENT OFFICE.  THE PLAN WAS EXECUTED, AND THE ARTICLE
WAS PUT TO FRAUDULENT USE IN THE PATENT OFFICE, CONTRARY TO LAW. 
U.S.C., TITLE 35, SEC. 69; UNITED STATES V. AMERICAN BELL TELEPHONE
CO., 128 U.S. 315.  FROM THERE THE TRAIL OF FRAUD CONTINUED WITHOUT
BREAK THROUGH THE DISTRICT COURT AND UP TO THE CIRCUIT COURT OF
APPEALS.  HAD THE DISTRICT COURT LEARNED OF THE FRAUD ON THE PATENT
OFFICE AT THE ORIGINAL INFRINGEMENT TRIAL, IT WOULD HAVE BEEN WARRANTED
IN DISMISSING HARTFORD'S CASE.  IN A PATENT CASE WHERE THE FRAUD
CERTAINLY WAS NOT MORE FLAGRANT THAN HERE, THIS COURT SAID:  "HAD THE
CORRUPTION OF CLUTTER BEEN DISCLOSED AT THE TRIAL  ...,  THE COURT
UNDOUBTEDLY WOULD HAVE BEEN WARRANTED IN HOLDING IT SUFFICIENT TO
REQUIRE DISMISSAL OF THE CAUSE OF ACTION THERE ALLEGED FOR THE
INFRINGEMENT OF THE DOWNIE PATENT."  KEYSTONE DRILLER CO. V. EXCAVATOR
CO., 290 U.S. 240, 246; CF. MORTON SALT CO. V. G.S. SUPPIGER CO.,
SUPRA, 493, 494.  SO, ALSO, COULD THE CIRCUIT COURT OF APPEALS HAVE
DISMISSED THE APPEAL HAD IT BEEN AWARE OF HARTFORD'S CORRUPT ACTIVITIES
IN SUPPRESSING THE TRUTH CONCERNING THE AUTHORSHIP OF THE ARTICLE.  THE
TOTAL EFFECT OF ALL THIS FRAUD, PRACTICED BOTH ON THE PATENT OFFICE AND
THE COURTS, CALLS FOR NOTHING LESS THAN A COMPLETE DENIAL OF RELIEF TO
HARTFORD FOR THE CLAIMED INFRINGEMENT OF THE PATENT THEREBY PROCURED
AND ENFORCED. 

SINCE THE JUDGMENTS OF 1932 THEREFORE MUST BE VACATED, THE CASE NOW
STANDS IN THE SAME POSITION AS THOUGH HARTFORD'S CORRUPTION HAD BEEN
EXPOSED AT THE ORIGINAL TRIAL.  IN THIS SITUATION THE DOCTRINE OF THE
KEYSTONE CASE, SUPRA, REQUIRES THAT HARTFORD BE DENIED RELIEF. 

TO GRANT FULL PROTECTION TO THE PUBLIC AGAINST A PATENT OBTAINED BY
FRAUD, THAT PATENT MUST BE VACATED.  IT HAS PREVIOUSLY BEEN DECIDED
THAT SUCH A REMEDY IS NOT AVAILABLE IN INFRINGEMENT PROCEEDINGS, BUT
CAN ONLY BE ACCOMPLISHED IN A DIRECT PROCEEDING BROUGHT BY THE
GOVERNMENT.  UNITED STATES V. AMERICAN BELL TELEPHONE CO., SUPRA. 

THE JUDGMENT IS REVERSED WITH DIRECTIONS TO SET ASIDE THE 1932
JUDGMENT OF THE CIRCUIT COURT OF APPEALS, RECALL THE 1932 MANDATE,
DISMISS HARTFORD'S APPEAL, AND ISSUE MANDATE TO THE DISTRICT COURT
DIRECTING IT TO SET ASIDE ITS JUDGMENT ENTERED PURSUANT TO THE CIRCUIT
COURT OF APPEALS' MANDATE, TO REINSTATE ITS ORIGINAL JUDGMENT DENYING
RELIEF TO HARTFORD, AND TO TAKE SUCH ADDITIONAL ACTION AS MAY BE
NECESSARY AND APPROPRIATE.  REVERSED. 

FN1  SEE, E.G., ART METAL WORKS V. ABRAHAM & STRAUSS, 107 F.2D 940
AND 944; PUBLICKER V. SHALLCROSS, 106 F.2D 949; CHICAGO, R.I. & P. RY.
CO. V. CALLICOTTE, 267 F. 799; PICKENS V. MERRIAM, 242 F. 363; LEHMAN
V. GRAHAM, 135 F. 39; BOLDEN V. SLOSS-SHEFFIELD STEEL & IRON CO., 215
ALA. 334, 110 SO. 574, 49 A.L.R. 1206.  FOR A COLLECTION OF EARLY CASES
SEE NOTE (1880) 20 AM. DEC. 160. 

FN2  SEE WHITING V. BANK OF THE UNITED STATES, 13 PET. 6, 13; DEXTER
V. ARNOLD, 5 MASON 303, 308-315.  SEE, ALSO, GENERALLY, 3 OHLINGER'S
FEDERAL PRACTICE PP. 814-818; 3 FREEMAN ON JUDGMENTS (5TH ED.)  SEC. 
1191; NOTE (1880) 20 AM. DEC. 160, SUPRA. 

FN3  SEE 3 FREEMAN ON JUDGMENTS (5TH ED.)  SECS.  1178, 1779. 

FN4  SEE ALSO TYLER V. MAGWIRE, 17 WALL.  253, 283:  "REPEATED
DECISIONS OF THIS COURT HAVE ESTABLISHED THE RULE THAT A FINAL JUDGMENT
OR DECREE OF THIS COURT IS CONCLUSIVE UPON THE PARTIES, AND THAT IT
CANNOT BE REEXAMINED AT A SUBSEQUENT TERM, EXCEPT IN CASES OF FRAUD, AS
THERE IS NO ACT OF CONGRESS WHICH CONFERS ANY SUCH AUTHORITY." 

FN5  WE DO NOT HOLD, AND WOULD NOT HOLD, THAT THE MATERIAL QUESTIONS
OF FACT RAISED BY THE CHARGES OF FRAUD AGAINST HARTFORD COULD, IF IN
DISPUTE, BE FINALLY DETERMINED ON EX PARTE AFFIDAVITS WITHOUT
EXAMINATION AND CROSS-EXAMINATION OF WITNESSES.  IT SHOULD AGAIN BE
EMPHASIZED THAT HARTFORD HAS NEVER QUESTIONED THE ACCURACY OF THE
VARIOUS DOCUMENTS WHICH INDISPUTABLY SHOW FRAUD ON THE PATENT OFFICE
AND THE CIRCUIT COURT, AND HAS NOT CLAIMED, EITHER HERE OR BELOW, THAT
A TRIAL MIGHT BRING FORTH EVIDENCE TO DISPROVE THE FACTS AS SHOWN BY
THESE DOCUMENTS.  AND INSOFAR AS A TRIAL WOULD SERVE TO BRING FORTH
ADDITIONAL EVIDENCE SHOWING THAT HAZEL WAS NOT DILIGENT IN UNCOVERING
THESE FACTS, WE ALREADY HAVE POINTED OUT THAT SUCH EVIDENCE WOULD NOT
IN THIS CASE CHANGE THE RESULT. 

MOREOVER, WE NEED NOT DECIDE WHETHER, IF THE FACTS RELATING TO THE
FRAUD WERE IN DISPUTE AND DIFFICULT OF ASCERTAINMENT, THE CIRCUIT COURT
HERE SHOULD HAVE HELD HEARINGS AND DECIDED THE CASE OR SHOULD HAVE SENT
IT TO THE DISTRICT COURT FOR DECISION.  CF. ART METAL WORKS V. ABRAHAM
& STRAUSS, SUPRA, NOTE 1. 

MR. JUSTICE ROBERTS: 

NO FRAUD IS MORE ODIOUS THAN AN ATTEMPT TO SUBVERT THE ADMINISTRATION
OF JUSTICE.  THE COURT IS UNANIMOUS IN CONDEMNING THE TRANSACTION
DISCLOSED BY THIS RECORD.  OUR PROBLEM IS HOW BEST THE WRONG SHOULD BE
RIGHTED AND THE WRONGDOERS PURSUED.  RESPECT FOR ORDERLY METHODS OF
PROCEDURE IS ESPECIALLY IMPORTANT IN A CASE OF THIS SORT.  IN SIMPLE
TERMS, THE SITUATION IS THIS.  SOME TWELVE YEARS AGO A FRAUD
PERPETRATED IN THE PATENT OFFICE WAS RELIED ON BY HARTFORD IN THE
CIRCUIT COURT OF APPEALS.  THE COURT REVERSED A JUDGMENT IN FAVOR OF
HAZEL, DECIDED THAT HARTFORD WAS THE HOLDER OF A VALID PATENT WHICH
HAZEL HAD INFRINGED AND, BY ITS MANDATE, DIRECTED THE DISTRICT COURT TO
ENTER A JUDGMENT IN FAVOR OF HARTFORD.  THIS WAS DONE AND, ON THE
STRENGTH OF THE JUDGMENT, HARTFORD AND HAZEL ENTERED INTO AN AGREEMENT
OF WHICH MORE HEREAFTER.  SO LONG AS THAT JUDGMENT STANDS UNMODIFIED,
THE AGREEMENT OF THE PARTIES WILL BE UNAFFECTED BY ANYTHING INVOLVED IN
THE SUIT UNDER DISCUSSION.  HAZEL CONCEDEDLY NOW DESIRES TO BE IN A
POSITION TO DISREGARD THE AGREEMENT TO ITS PROFIT. 

THE RESOURCES OF THE LAW ARE AMPLE TO UNDO THE WRONG AND TO PURSUE
THE WRONGDOER AND TO DO BOTH EFFECTIVELY WITH DUE REGARD TO THE
ESTABLISHED MODES OF PROCEDURE.  EVER SINCE THIS FRAUD WAS EXPOSED, THE
UNITED STATES HAS HAD STANDING TO SEEK NULLIFICATION OF HARTFORD'S
PATENT.  FN1  THE GOVERNMENT FILED A BRIEF AS AMICUS BELOW AND ONE IN
THIS COURT.  IT HAS ELECTED NOT TO PROCEED FOR CANCELLATION OF THE
PATENT.  FN2 

IT IS COMPLAINED THAT MEMBERS OF THE BAR HAVE KNOWINGLY PARTICIPATED
IN THE FRAUD.  REMEDIES ARE AVAILABLE TO PURGE RECREANT OFFICERS FROM
THE TRIBUNALS ON WHOM THE FRAUD WAS PRACTICED. 

FINALLY, AS TO THE IMMEDIATE AIM OF THIS PROCEEDING, NAMELY, TO
NULLIFY THE JUDGMENT IF THE FRAUD PROCURED IT, AND IF HAZEL IS
EQUITABLY ENTITLED TO RELIEF, AN EFFECTIVE AND ORDERLY REMEDY IS AT
HAND.  THIS IS A SUIT IN EQUITY IN THE DISTRICT COURT TO SET ASIDE OR
AMEND THE JUDGMENT.  SUCH A PROCEEDING IS REQUIRED BY SETTLED FEDERAL
LAW AND WOULD BE TRIED, AS IT SHOULD BE, IN OPEN COURT WITH LIVING
WITNESSES INSTEAD OF THROUGH THE UNSATISFACTORY METHOD OF AFFIDAVITS. 
WE SHOULD NOT RESORT TO A DISORDERLY REMEDY, BY DISREGARDING THE LAW AS
APPLIED IN FEDERAL COURTS EVER SINCE THEY WERE ESTABLISHED, IN ORDER TO
REACH ONE INEQUITY AT THE RISK OF PERPETRATING ANOTHER. 

IN A SUIT BROUGHT BY HARTFORD AGAINST HAZEL IN THE WESTERN DISTRICT
OF PENNSYLVANIA CHARGING INFRINGEMENT OF HARTFORD'S PATENT NO.
1,655,391, A DECREE WAS ENTERED AGAINST HARTFORD MARCH 31, 1930, ON THE
GROUND THAT HAZEL HAD NOT INFRINGED.  ON APPEAL, THE CIRCUIT COURT OF
APPEALS FILED AN OPINION, MAY 5, 1932, REVERSING THE JUDGMENT OF THE
DISTRICT COURT AND HOLDING THE PATENT VALID AND INFRINGED.  ON HAZEL'S
APPLICATION, THE TIME FOR FILING A PETITION FOR REHEARING WAS EXTENDED
FIVE TIMES.  ON JULY 21, 1932, HAZEL ENTERED INTO A GENERAL SETTLEMENT
AND LICENSE AGREEMENT WITH HARTFORD RESPECTING THE PATENT IN SUIT AND
OTHER PATENTS, WHICH AGREEMENT WAS TO BE EFFECTIVE AS OF JULY 1, 1932. 
HAZEL FILED NO PETITION FOR REHEARING AND, ON JULY 30, 1932, THE
MANDATE OF THE CIRCUIT COURT OF APPEALS WENT TO THE DISTRICT COURT. 
PURSUANT TO THE MANDATE, THAT COURT ENTERED ITS FINAL JUDGMENT AGAINST
HAZEL FOR AN INJUNCTION AND AN ACCOUNTING.  NO SUCH ACCOUNTING WAS EVER
HAD BECAUSE HAZEL AND HARTFORD HAD SETTLED THEIR DIFFERENCES. 

NOVEMBER 19, 1941, HAZEL PRESENTED TO THE CIRCUIT COURT OF APPEALS
ITS PETITION FOR LEAVE TO FILE IN THE DISTRICT COURT A BILL OF REVIEW. 
ATTACHED WAS THE PROPOSED BILL.  AFFIDAVITS WERE FILED BY HAZEL AND
HARTFORD.  THE CIRCUIT COURT OF APPEALS HEARD THE MATTER AND MADE AN
ORDER DENYING THE PETITION FOR LEAVE TO FILE, HOLDING THAT ANY FRAUD
PRACTICED HAD BEEN PRACTICED ON THE CIRCUIT COURT OF APPEALS AND,
THEREFORE, THAT COURT SHOULD ITSELF PASS UPON THE QUESTION WHETHER THE
MANDATE SHOULD BE RECALLED AND THE CASE REOPENED.  LEAVE WAS GRANTED TO
HAZEL TO AMEND ITS PETITION TO SEEK RELIEF FROM THE CIRCUIT COURT OF
APPEALS.  THE ORDER PROVIDED FOR AN ANSWER BY HARTFORD AND FOR A
HEARING AND DETERMINATION BY THE CIRCUIT COURT OF APPEALS. 

THE CIRCUIT COURT OF APPEALS, ON THE BASIS OF THE AMENDED PETITION,
THE ANSWER, AND THE AFFIDAVITS, DENIED RELIEF ON THE GROUNDS:  (1) THAT
THE FRAUD HAD NOT BEEN EFFECTIVE TO INFLUENCE ITS EARLIER DECISION; (2)
THAT THE COURT WAS WITHOUT POWER TO DEAL WITH THE CASE AS ITS MANDATE
HAD GONE DOWN AND THE TERM HAD LONG SINCE EXPIRED; (3) THAT HAZEL HAD
BEEN NEGLIGENT AND GUILTY OF INEXCUSABLE DELAY IN PRESENTING THE MATTER
TO THE COURT; AND (4) THAT THE ONLY PERMISSIBLE PROCEDURE WAS IN THE
DISTRICT COURT, WHERE THE JUDGMENT RESTED, BY BILL IN EQUITY IN THE
NATURE OF A BILL OF REVIEW.  ONE JUDGE DISSENTED, HOLDING THAT THE
COURT HAD POWER (1) TO RECALL THE CAUSE; (2) TO ENTER UPON A TRIAL OF
THE ISSUES MADE BY THE PETITION AND ANSWER, AND (3) ITSELF TO REVIEW
AND REVISE ITS EARLIER DECISION, ENTER A NEW JUDGMENT IN THE CASE ON
THE CORRECTED RECORD AND SEND A NEW MANDATE TO THE DISTRICT COURT. 

AS I UNDERSTAND THE OPINION OF THIS COURT, WHILE IT REVERSES THE
DECISION BELOW, IT ONLY PARTIALLY ADOPTS THE VIEW OF THE DISSENTING
JUDGE, FOR THE HOLDING IS:  (1) THAT THE COURT BELOW HAS POWER AT THIS
DATE TO DEAL WITH THE MATTER EITHER AS A NEW SUIT OR AS A CONTINUATION
OF THE OLD ONE; (2) THAT IT CAN RECALL THE CASE FROM THE DISTRICT
COURT; (3) THAT IT CAN GRANT RELIEF; (4) THAT IT CAN HEAR EVIDENCE AND
ACT AS A COURT OF FIRST INSTANCE OR A TRIAL COURT; (5) THAT SUCH A
TRIAL AS IT AFFORDS NEED NOT BE ACCORDING TO THE ORDINARY COURSE OF
TRIAL OF FACTS IN OPEN COURT, BY EXAMINATION AND CROSS-EXAMINATION OF
WITNESSES, BUT THAT THE PROOFS MAY CONSIST MERELY OF EX PARTE
AFFIDAVITS; AND (6) THAT SUCH A TRIAL HAS ALREADY BEEN AFFORDED AND IT
REMAINS ONLY, IN EFFECT, TO CANCEL HARTFORD'S PATENT. 

I THINK THE DECISION OVERRULES PRINCIPLES SETTLED BY SCORES OF
DECISIONS OF THIS COURT WHICH ARE VITAL TO THE EQUITABLE AND ORDERLY
DISPOSITION OF CAUSES,  - PRINCIPLES WHICH, UPON THE SOUNDEST
CONSIDERATIONS OF FAIRNESS AND POLICY, HAVE STOOD UNQUESTIONED SINCE
THE FEDERAL JUDICIAL SYSTEM WAS ESTABLISHED.  I SHALL FIRST BRIEFLY
STATE THESE PRINCIPLES.  I SHALL THEN AS BRIEFLY SUMMARIZE THE REASONS
FOR THEIR ADOPTION AND ENFORCEMENT AND, FINALLY, I SHALL SHOW WHY IT
WOULD NOT BE IN THE INTEREST OF JUSTICE TO ABANDON THEM IN THIS CASE. 

1.  THE FINAL AND ONLY EXTANT JUDGMENT IN THE LITIGATION IS THAT OF
THE DISTRICT COURT ENTERED PURSUANT TO THE MANDATE OF THE CIRCUIT COURT
OF APPEALS.  THE TERM OF THE DISTRICT COURT LONG AGO EXPIRED AND, WITH
THAT EXPIRATION, ALL POWER OF THAT COURT TO REEXAMINE THE JUDGMENT OR
TO ALTER IT CEASED, EXCEPT FOR THE CORRECTION OF CLERICAL ERRORS.  THE
PRINCIPLE IS OF UNIVERSAL APPLICATION TO JUDGMENTS AT LAW,  FN3
DECREES IN EQUITY,  FN4  AND CONVICTIONS OF CRIME, THOUGH, AS RESPECTS
THE LATTER, ITS RESULT MAY BE GREAT INDIVIDUAL HARDSHIP.  FN5  THE RULE
MIGHT, FOR THAT REASON, HAVE BEEN RELAXED IN CRIMINAL CASES, IF IT EVER
IS TO BE, FOR THERE, IN CONTRAST TO CIVIL CASES, NO OTHER JUDICIAL
RELIEF IS AVAILABLE. 

IN THE PROMULGATION OF THE FEDERAL RULES OF CIVIL PROCEDURE THIS
COURT TOOK NOTICE OF THE FACT THAT TERMS OF THE DISTRICT COURT VARY IN
LENGTH AND THAT THE EXPIRATION OF THE TERM MIGHT OCCUR VERY SOON, OR
QUITE A LONG TIME, AFTER THE ENTRY OF A JUDGMENT.  IN ORDER TO MAKE THE
PRACTICE UNIFORM, RULE 60-B PROVIDES:  "ON MOTION THE COURT, UPON SUCH
TERMS AS ARE JUST, MAY RELIEVE A PARTY OR HIS LEGAL REPRESENTATIVE FROM
A JUDGMENT, ORDER, OR PROCEEDING TAKEN AGAINST HIM THROUGH HIS MISTAKE,
INADVERTENCE, SURPRISE, OR EXCUSABLE NEGLECT.  THE MOTION SHALL BE MADE
WITHIN A REASONABLE TIME, BUT IN NO CASE EXCEEDING SIX MONTHS AFTER
SUCH JUDGMENT, ORDER, OR PROCEEDING WAS TAKEN.  ...  THIS RULE DOES NOT
LIMIT THE POWER OF A COURT (1) TO ENTERTAIN AN ACTION TO RELIEVE A
PARTY FROM A JUDGMENT, ORDER, OR PROCEEDING.  ...  "  THUS THERE HAS
BEEN SUBSTITUTED FOR THE TERM RULE A DEFINITE TIME LIMITATION WITHIN
WHICH A DISTRICT COURT MAY CORRECT OR MODIFY ITS JUDGMENTS.  BUT THE
SALUTARY RULE AS TO FINALITY IS RETAINED AND, AFTER THE EXPIRATION OF
SIX MONTHS, THE PARTY MUST APPLY, AS HERETOFORE, BY BILL OF REVIEW,  -
NOW DESIGNATED A CIVIL ACTION - TO OBTAIN RELIEF FROM A JUDGMENT WHICH
ITSELF IS FINAL SO FAR AS ANY FURTHER STEPS IN THE ORIGINAL ACTION ARE
CONCERNED. 

THE TERM RULE APPLIES WITH EQUAL FORCE TO AN APPELLATE COURT.  OVER
THE WHOLE COURSE OF ITS HISTORY, THIS COURT HAS UNIFORMLY HELD THAT IT
WAS WITHOUT POWER, AFTER THE GOING DOWN OF THE MANDATE, AND THE
EXPIRATION OF THE TERM, TO REHEAR A CASE OR TO MODIFY ITS DECISION ON
THE MERITS.  FN6  AND THIS IS EQUALLY TRUE OF THE CIRCUIT COURTS OF
APPEAL.  FN7 

THE COURT BELOW, UNLESS WE ARE TO OVERTHROW A CENTURY-AND-A-HALF OF
PRECEDENTS, LACKS POWER NOW TO REVISE ITS JUDGMENT AND LACKS POWER ALSO
TO SEND ITS PROCESS TO THE DISTRICT COURT AND CALL UP FOR REVIEW THE
JUDGMENT ENTERED ON ITS MANDATE TWELVE YEARS AGO.  FN8  NO SUCH POWER
IS INHERENT IN AN APPELLATE COURT; NONE SUCH IS CONFERRED BY ANY
STATUTE. 

2.  THE CIRCUIT COURT OF APPEALS IS WITHOUT AUTHORITY EITHER TO TRY
THE ISSUES POSED BY THE PETITION AND ANSWER ON THE AFFIDAVITS ON FILE,
OR, TO DO AS THE DISSENTING JUDGE BELOW SUGGESTS, HOLD A FULL-DRESS
TRIAL. 

THE FEDERAL COURTS HAVE ONLY SUCH POWERS AS ARE EXPRESSLY CONFERRED
ON THEM.  CERTAIN ORIGINAL JURISDICTION IS VESTED IN THIS COURT BY THE
CONSTITUTION.  ITS POWERS AS AN APPELLATE COURT ARE THOSE ONLY WHICH
ARE GIVEN BY STATUTE.  FN9 

THE CIRCUIT COURTS OF APPEAL ARE CREATURES OF STATUTE.  NO ORIGINAL
JURISDICTION HAS BEEN CONFERRED ON THEM.  THEY EXERCISE ONLY SUCH
APPELLATE FUNCTIONS AS CONGRESS HAS GRANTED.  THE GRANT IS PLAIN.  "THE
CIRCUIT COURTS OF APPEAL SHALL HAVE APPELLATE JURISDICTION TO REVIEW BY
APPEAL FINAL DECISIONS  ...  IN THE DISTRICT COURTS  ...  "  FN10
NOWHERE IS THERE ANY GRANT OF JURISDICTION TO TRY CASES, TO ENTER
JUDGMENTS, OR TO ISSUE EXECUTIONS OR OTHER FINAL PROCESS. 

"  ...  COURTS CREATED BY STATUTE MUST LOOK TO THE STATUTE AS THE
WARRANT FOR THEIR AUTHORITY; CERTAINLY THEY CANNOT GO BEYOND THE
STATUTE, AND ASSERT AN AUTHORITY WITH WHICH THEY MAY NOT BE INVESTED BY
IT, OR WHICH MAY BE CLEARLY DENIED TO THEM."  FN11 

THIS COURT HAS NEVER DEPARTED FROM THE VIEW THAT CIRCUIT COURTS OF
APPEAL ARE STATUTORY COURTS HAVING NO ORIGINAL JURISDICTION BUT ONLY
APPELLATE JURISDICTION.  FN12 

NEITHER THIS COURT  FN13  NOR A CIRCUIT COURT  FN14  OF APPEALS MAY
HEAR NEW EVIDENCE IN A CAUSE APPEALABLE FROM A LOWER COURT.  NO
SUGGESTION SEEMS EVER BEFORE TO HAVE BEEN MADE THAT THEY MAY CONSTITUTE
THEMSELVES TRIAL COURTS, EMBARK ON THE TRIAL OF WHAT IS ESSENTIALLY AN
INDEPENDENT CAUSE AND ENTER A JUDGMENT OF FIRST INSTANCE ON THE FACTS
AND THE LAW.  BUT THIS IS WHAT THE OPINION SANCTIONS. 

3.  THE TEMPTATION MIGHT BE STRONG TO BREAK NEW GROUND IN THIS CASE
IF HAZEL WERE OTHERWISE REMEDILESS.  SUCH IS NOT THE FACT.  THE REPORTS
ABOUND IN DECISIONS POINTING THE WAY TO RELIEF IF, IN EQUITY, HAZEL IS
ENTITLED TO ANY. 

SINCE LORD BACON'S DAY A DECREE IN EQUITY MAY BE REVERSED OR REVISED
FOR ERROR OF LAW,  FN15 FOR NEW MATTER SUBSEQUENTLY OCCURRING, OR FOR
AFTER-DISCOVERED EVIDENCE.  AND THIS HEAD OF EQUITY JURISDICTION HAS
BEEN EXERCISED BY THE FEDERAL COURTS FROM THE FOUNDATION OF THE
NATION.  FN16 SUCH A BILL IS AN ORIGINAL BILL IN THE NATURE OF A BILL
OF REVIEW.  EQUITY ALSO, ON ORIGINAL BILLS, EXERCISES A LIKE
JURISDICTION TO PREVENT UNCONSCIONABLE RETENTION OR ENFORCEMENT OF A
JUDGMENT AT LAW PROCURED BY FRAUD, OR MISTAKE UNMIXED WITH NEGLIGENCE
ATTRIBUTABLE TO THE LOSING PARTY, OR RENDERED BECAUSE HE WAS PRECLUDED
FROM MAKING A DEFENSE WHICH HE HAD.  SUCH A BILL MAY BE FILED IN THE
FEDERAL COURT WHICH RENDERED THE JUDGMENT OR IN A FEDERAL COURT OTHER
THAN THE COURT, FEDERAL OR STATE, WHICH RENDERED IT. FN17 

WHETHER THE SUIT CONCERNS A DECREE IN EQUITY OR A JUDGMENT AT LAW, IT
IS FOR RELIEF GRANTED BY EQUITY AGAINST AN UNJUST AND INEQUITABLE
RESULT, AND IS SUBJECT TO ALL THE CUSTOMARY DOCTRINES GOVERNING THE
AWARD OF EQUITABLE RELIEF. 

NEW PROOF TO JUSTIFY A BILL OF REVIEW MUST BE SUCH AS HAS COME TO
LIGHT AFTER JUDGMENT AND SUCH AS COULD NOT HAVE BEEN OBTAINED WHEN THE
JUDGMENT WAS ENTERED.  THE PROFFERED EVIDENCE MUST NOT ONLY HAVE BEEN
UNKNOWN PRIOR TO JUDGMENT, BUT MUST BE SUCH AS COULD NOT HAVE BEEN
DISCOVERED BY THE EXERCISE OF REASONABLE DILIGENCE IN TIME TO PERMIT
ITS USE IN THE TRIAL.  UNREASONABLE DELAY, OR LACK OF DILIGENCE IN
TIMELY SEARCHING FOR THE EVIDENCE, IS FATAL TO THE RIGHT OF A BILL OF
REVIEW, AND A PARTY MAY NOT ELECT TO FOREGO INQUIRY AND LET THE CAUSE
GO TO JUDGMENT IN THE HOPE OF A FAVORABLE RESULT AND THEN CHANGE HIS
POSITION AND ATTEMPT, BY MEANS OF A BILL OF REVIEW, TO GET THE BENEFIT
OF EVIDENCE HE NEGLECTED TO PRODUCE.  THESE PRINCIPLES ARE ESTABLISHED
BY MANY OF THE CASES CITED IN NOTES 16 AND 17, AND SPECIFIC CITATION IS
UNNECESSARY.  THE PRINCIPLES ARE WELL SETTLED.  AND, IN THIS CLASS OF
CASES AS IN OTHERS, ALTHOUGH EQUITY DOES NOT CONDONE WRONGDOING, IT
WILL NOT EXTEND ITS AID TO A WRONGDOER; IN OTHER WORDS, THE COMPLAINANT
MUST COME INTO COURT WITH CLEAN HANDS. 

4.  CONFESSEDLY THE OPINION REPUDIATES THE UNBROKEN RULE OF DECISION
WITH RESPECT TO THE FINALITY OF A JUDGMENT AT THE EXPIRATION OF THE
TERM; THAT WITH RESPECT TO JURISDICTION OF AN APPELLATE COURT TO TRY
ISSUES OF FACT UPON EVIDENCE, AND THAT WITH RESPECT TO THE NECESSITY
FOR RESORTING TO A BILL OF REVIEW TO MODIFY OR SET ASIDE A JUDGMENT
ONCE IT HAS BECOME FINAL.  PERUSAL OF THE AUTHORITIES CITED WILL
SUFFICIENTLY EXPOSE THE REASONS FOR THESE DOCTRINES.  IT IS OBVIOUS
THAT PARTIES OUGHT NOT TO BE PERMITTED INDEFINITELY TO LITIGATE ISSUES
ONCE TRIED AND ADJUDICATED FN18.  THERE MUST BE AN END TO LITIGATION. 
IF COURTS OF FIRST INSTANCE, OR APPELLATE COURTS, WERE AT LIBERTY, ON
APPLICATION OF A PARTY, AT ANY TIME TO INSTITUTE A SUMMARY INQUIRY FOR
THE PURPOSE OF MODIFYING OR NULLIFYING A CONSIDERED JUDGMENT, NO
RELIANCE COULD BE PLACED ON THAT WHICH HAS BEEN ADJUDICATED AND
CITIZENS COULD NOT, WITH ANY CONFIDENCE, ACT IN THE LIGHT OF WHAT HAS
APPARENTLY BEEN FINALLY DECIDED. 

IF RELIEF ON EQUITABLE GROUNDS IS TO BE OBTAINED, IT IS RIGHT THAT IT
SHOULD BE SOUGHT BY A FORMAL SUIT UPON ADEQUATE PLEADINGS AND SHOULD BE
GRANTED ONLY AFTER A TRIAL OF ISSUES ACCORDING TO THE USUAL COURSE OF
THE TRIAL OF QUESTIONS OF FACT.  A COURT OF FIRST INSTANCE IS THE
APPROPRIATE TRIBUNAL, AND THE ONLY TRIBUNAL, EQUIPPED FOR SUCH A
TRIAL.  APPELLATE COURTS HAVE NEITHER THE POWER NOR THE MEANS TO THAT
END. 

ON THE STRONGEST GROUNDS OF PUBLIC POLICY BILLS OF REVIEW ARE
DISFAVORED, SINCE TO FACILITATE THEM WOULD TEND TO ENCOURAGE FRAUDULENT
PRACTICES, RESORT TO PERJURY, AND THE BUILDING OF FICTITIOUS REASONS
FOR SETTING ASIDE JUDGMENTS. 

5.  I THINK THE FACTS IN THE INSTANT CASE SPEAK LOUDLY FOR THE
OBSERVANCE, AND AGAINST THE REPUDIATION, OF ALL THE RULES TO WHICH I
HAVE REFERRED.  THE COURT'S OPINION IMPLIES THAT THE DISPOSITION HERE
MADE IS JUSTIFIED BY UNCONTRADICTED FACTS, BUT THE RECORD DEMONSTRATES
BEYOND QUESTION THAT SERIOUS CONTROVERTED ISSUES OUGHT TO BE RESOLVED
BEFORE HAZEL MAY HAVE RELIEF. 

IN 1926 HARTFORD BROUGHT A SUIT FOR INFRINGEMENT OF THE PEILER PATENT
AGAINST NIVISON-WEISKOPF COMPANY IN THE SOUTHERN DISTRICT OF OHIO. 
COUNSEL FOR THE DEFENDANTS IN THAT CASE WERE MESSRS.  WILLIAM R. AND
EDMUND P. WOOD OF CINCINNATI.  ABOUT THE SAME TIME, HARTFORD BROUGHT A
SIMILAR SUIT FOR INFRINGEMENT AGAINST KEARNS-GORSUCH BOTTLE COMPANY, A
SUBSIDIARY OF HAZEL.  COUNSEL FOR KEARNS WERE THE SAME WHO HAVE
REPRESENTED HAZEL THROUGHOUT THIS CASE. 

IN 1928 HARTFORD BROUGHT SUIT AGAINST HAZEL IN THE WESTERN DISTRICT
OF PENNSYLVANIA FOR A LIKE INFRINGEMENT.  THE SAME COUNSEL REPRESENTED
HAZEL.  THE OHIO SUITS CAME TO TRIAL FIRST.  IN THEM A DECISION WAS
RENDERED ADVERSE TO HARTFORD.  APPEALS WERE TAKEN TO THE CIRCUIT COURT
OF APPEALS OF THE SIXTH CIRCUIT, WERE CONSOLIDATED, AND COUNSEL FOR THE
DEFENDANTS APPEARED TOGETHER IN THAT COURT, WHICH DECIDED ADVERSELY TO
HARTFORD (58 F.2D 701). 

IN THE PREPARATION FOR THE DEFENSE OF THE NIVISON SUIT, WILLIAM R.
WOOD CALLED UPON CLARKE AND INTERVIEWED HIM IN THE PRESENCE OF A
WITNESS.  CLARKE ADMITTED THAT HATCH OF HARTFORD HAD PREPARED THE
ARTICLE PUBLISHED UNDER CLARKE'S NAME.  IN THE LIGHT OF THIS FACT THE
MESSRS.  WOOD NOTIFIED HARTFORD THAT THEY WOULD REQUIRE THE PRESENCE OF
HATCH AT THE TRIAL OF THE SUIT AND HATCH WAS IN ATTENDANCE DURING THAT
TRIAL.  REPEATEDLY DURING THE TRIAL, HATCH ADMITTED TO THE MESSRS. 
WOOD THAT HE WAS IN FACT THE AUTHOR OF THE ARTICLE.  IT WAS WELL
UNDERSTOOD THAT THE DEFENDANT WANTED HIM PRESENT SO THAT IF ANY
REFERENCE TO OR RELIANCE UPON THE ARTICLE DEVELOPED THEY COULD CALL
HATCH AND PROVE THE FACTS.  THERE WAS NO SUCH REFERENCE OR RELIANCE. 
AS COUNSEL FOR THE VARIOUS DEFENDANTS OPPOSED TO HARTFORD WERE ACTING
IN CLOSE COOPERATION, MESSRS.  WOOD ATTENDED THE TRIAL OF THE HARTFORD
HAZEL SUIT IN PITTSBURGH, WHICH MUST HAVE OCCURRED IN 1929 OR EARLY
1930.  (SEE 39 F.2D 111.)  ONE OR OTHER OF THE MESSRS.  WOOD WAS
PRESENT THROUGHOUT THAT TRIAL AND EDMUND P. WOOD WAS IN FREQUENT
CONSULTATION WITH THE HAZEL REPRESENTATIVES AND COUNSEL.  HAZEL'S
COUNSEL WAS THE SAME AT THAT TRIAL AS IN THE PRESENT CASE.  THE
MESSRS.  WOOD TOLD HAZEL'S COUNSEL AND REPRESENTATIVES THAT CLARKE HAD
ADMITTED HATCH WAS THE AUTHOR OF THE ARTICLE AND THAT HATCH HAD ALSO
FREELY ADMITTED THE SAME THING.  HAZEL'S COUNSEL AND REPRESENTATIVES
DISCUSSED AT LENGTH, IN THE PRESENCE OF MR. WOOD, THE ADVISABILITY OF
ATTACKING THE AUTHENTICITY OF THE ARTICLE.  COUNSEL FOR HAZEL, IN THESE
CONFERENCES, TOOK THE POSITION THAT "AN ATTACK ON THE ARTICLE MIGHT BE
A BOOMERANG IN THAT IT MIGHT EMPHASIZE THE TRUTH OF THE ONLY STATEMENTS
IN THE ARTICLE" WHICH HE REGARDED AS OF ANY POSSIBLE PERTINENCE.  MR.
WOOD'S AFFIDAVIT GIVING IN DETAIL THE DISCUSSIONS AND THE CONCLUSION OF
HAZEL'S COUNSEL IS UNCONTRADICTED, AND DEMONSTRATES THAT HAZEL'S
COUNSEL KNEW THE FACTS WITH REGARD TO THE CLARKE ARTICLE AND KNEW THE
NAMES OF WITNESSES WHO COULD PROVE THOSE FACTS.  AFTER DUE
DELIBERATION, IT WAS DECIDED NOT TO OFFER PROOF ON THE SUBJECT. 

THE DISTRICT COURT FOUND IN FAVOR OF HAZEL, HOLDING THAT HAZEL HAD
NOT INFRINGED.  HARTFORD APPEALED TO THE THIRD CIRCUIT COURT OF
APPEALS.  IN THAT COURT HARTFORD'S COUNSEL REFERRED IN ARGUMENT TO THE
CLARKE ARTICLE AND THE COURT, IN ITS DECISION, REFERRED TO THE ARTICLE
AS PERSUASIVE OF CERTAIN FACTS IN CONNECTION WITH THE DEVELOPMENT OF
GLASS MACHINERY.  THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT
RENDERED ITS DECISION IN THE NIVISON AND KEARNS CASES ON MAY 12, 1932,
AND THE THIRD CIRCUIT COURT OF APPEALS RENDERED ITS DECISION IN THE
HARTFORD-HAZEL CASE ON MAY 6, 1932. 

COUNSEL FOR HAZEL WAS THEN, NEARLY TEN YEARS PRIOR TO THE FILING OF
THE INSTANT PETITION, CONFRONTED WITH THE FACT THAT, IN ITS OPINION,
THE CIRCUIT COURT OF APPEALS HAD ACCREDITED THE ARTICLE.  NATURALLY
COUNSEL WAS FACED WITH THE QUESTION WHETHER HE SHOULD BRING TO THE
COURT'S ATTENTION THE FACTS RESPECTING THAT ARTICLE.  AS I HAVE SAID,
HE ASKED AND WAS GRANTED FIVE EXTENSIONS OF TIME FOR FILING A PETITION
FOR REHEARING.  MEANTIME NEGOTIATIONS WERE BEGUN WITH HARTFORD FOR A
GENERAL SETTLEMENT AND FOR HAZEL'S JOINING IN THE COMBINATION AND
PATENT POOL OF WHICH HARTFORD WAS THE HEAD AND FRONT.  AT THE SAME
TIME, HOWEVER, EVIDENTLY AS A PRECAUTION AGAINST THE BREAKDOWN OF THE
NEGOTIATIONS, HAZEL'S COUNSEL OBTAINED AFFIDAVITS TO BE SIGNED BY THE
MESSRS.  WOOD SETTING FORTH THE FACTS WHICH THEY HAD GLEANED CONCERNING
THE AUTHORSHIP OF THE CLARKE ARTICLE.  THESE AFFIDAVITS WERE INTENDED
FOR USE IN THE THIRD CIRCUIT COURT OF APPEALS CASE FOR THEY WERE
CAPTIONED IN THAT CASE.  BEING MADE BY REPUTABLE COUNSEL WHO ARE
ACCREDITED BY BOTH PARTIES TO THIS PROCEEDING, THEY WERE SUFFICIENT
BASIS FOR A PETITION FOR REHEARING WHILE THE CASE WAS STILL IN THE
BOSOM OF THE CIRCUIT COURT OF APPEALS.  IT IS IDLE TO SUGGEST THAT
COUNSEL WOULD NOT HAVE BEEN JUSTIFIED IN APPLYING TO THE COURT ON THE
STRENGTH OF THEM. 

HAD COUNSEL FILED A PETITION AND ATTACHED TO IT THE AFFIDAVITS OF THE
MESSRS.  WOOD, WITHOUT MORE, HE WOULD HAVE DONE HIS DUTY TO THE COURT
IN TIMELY CALLING ITS ATTENTION TO THE FRAUD WHICH HAD BEEN
PERPETRATED.  BUT MORE, THE COURT WOULD UNDOUBTEDLY HAVE REOPENED THE
CASE, GRANTED REHEARING, AND REMANDED THE CASE TO THE DISTRICT COURT
WITH PERMISSION TO HAZEL TO SUMMON AND EXAMINE WITNESSES.  IT IS TO
IGNORE REALITIES TO SUGGEST, AS THE OPINION DOES, THAT COUNSEL FOR
HAZEL WAS HELPLESS AT THAT TIME AND IN THE THEN EXISTING SITUATION. 

BUT COUNSEL DID NOT REST THERE.  HE COMMISSIONED AN INVESTIGATOR WHO
INTERVIEWED A LABOR LEADER NAMED MALONEY IN PHILADELPHIA.  THIS MAN
REFUSED TO TALK BUT THE INVESTIGATOR'S REPORT WOULD MAKE IT CLEAR TO
ANYONE OF AVERAGE SENSE THAT HE KNEW ABOUT THE ORIGIN OF THE ARTICLE,
AND ANY LAWYER OF EXPERIENCE WOULD NOT HAVE HESITATED TO SUMMON HIM AS
A WITNESS AND PUT HIM UNDER EXAMINATION.  MOREOVER, THE INVESTIGATOR
INTERVIEWED CLARKE AND HIS REPORT OF THE EVASIVE MANNER AND ANSWERS OF
CLARKE CONVINCE ME, AND I BELIEVE WOULD CONVINCE ANY LAWYER OF NORMAL
PERCEPTION, THAT THE WOODS' AFFIDAVITS WERE TRUE AND THAT CLARKE WOULD
HAVE SO ADMITTED IF CALLED TO THE WITNESS STAND.  MOST EXTRAORDINARY IS
THE OMISSION OF HAZEL'S COUNSEL, ALTHOUGH THEN IN NEGOTIATION WITH
HARTFORD FOR A SETTLEMENT, TO MAKE ANY INQUIRY CONCERNING HATCH OR TO
INTERVIEW HATCH, OR TO HAVE HIM INTERVIEWED WHEN COUNSEL HAD BEEN
ASSURED THAT HATCH HAD NO INCLINATION TO PREVARICATE CONCERNING HIS
PART IN THE PREPARATION OF THE ARTICLE. 

THE CUSTOMARY MODES OF ELICITING TRUTH IN COURT MAY WELL ESTABLISH
THAT IN THE CIRCUMSTANCES HAZEL'S COUNSEL DELIBERATELY ELECTED TO
FOREGO ANY DISCLOSURE CONCERNING THE CLARKE ARTICLE AND TO PROCURE
INSTEAD THE FAVORABLE SETTLEMENT HE OBTAINED FROM HARTFORD. 

IN ANY EVENT, WE KNOW THAT, ON JULY 21, 1932, HARTFORD AND HAZEL
ENTERED INTO AN AGREEMENT, WHICH IS NOW BEFORE THIS COURT IN THE RECORD
IN NOS. 7-11 OF THE PRESENT TERM, ON APPEAL FROM THE DISTRICT COURT FOR
NORTHERN OHIO.  UNDER THE AGREEMENT HAZEL PAID HARTFORD $1,000,000. 
HARTFORD GRANTED HAZEL A LICENSE ON ALL MACHINES AND METHODS EMBODYING
PATENTED INVENTIONS FOR THE MANUFACTURE OF GLASS CONTAINERS AT
HARTFORD'S LOWEST ROYALTY RATES.  HARTFORD AGREED TO PAY HAZEL ONE
THIRD OF ITS NET ROYALTY INCOME TO AND INCLUDING JANUARY 3, 1945, OVER
AND ABOVE $850,000 PER ANNUM.  AT THE SAME TIME, HAZEL ENTERED INTO AN
AGREEMENT WITH THE OWENS-ILLINOIS GLASS COMPANY, ANOTHER PARTY TO THE
HARTFORD PATENT POOL AND THE CONSPIRACY TO MONOPOLIZE THE GLASS
MANUFACTURING INDUSTRY FOUND BY THE DISTRICT COURT. 

IN THE AUTUMN OF 1933 COUNSEL FOR SHAWKEE COMPANY, DEFENDANT IN
ANOTHER SUIT BY HARTFORD, OBTAINED DOCUMENTS INDICATING HATCH'S
RESPONSIBILITY FOR THE CLARKE ARTICLE, AND WROTE COUNSEL FOR HAZEL
INQUIRING WHAT HE KNEW ABOUT THE MATTER.  HAZEL'S COUNSEL, EVIDENTLY
RELUCTANT TO DISTURB THE EXISTING STATUS, REPLIED THAT, WHILE HE
SUSPECTED HARTFORD MIGHT HAVE BEEN RESPONSIBLE FOR THE ARTICLE, HE DID
NOT AT THE TIME OF TRIAL, KNOW OF THE PAPERS WHICH COUNSEL FOR SHAWKEE
HAD UNEARTHED, AND ADDED THAT HIS RECOLLECTION WAS THEN "TOO INDEFINITE
TO BE POSITIVE AND I WOULD HAVE TO GO THROUGH THE VOLUMINOUS MASS OF
PAPERS RELATING TO THE VARIOUS HARTFORD-EMPIRE LITIGATIONS, INCLUDING
CORRESPONDENCE, BEFORE I COULD BE MORE DEFINITE." 

THE DISTRICT COURT FOR NORTHERN OHIO HAS FOUND THAT THE 1932
AGREEMENT AND COINCIDENT ARRANGEMENTS PLACED HAZEL IN A PREFERRED
POSITION IN THE GLASS CONTAINER INDUSTRY AND DROVE NEARLY EVERYONE ELSE
IN THAT FIELD INTO TAKING LICENSES FROM HARTFORD, STIFLED COMPETITION,
AND GAVE HAZEL, AS A RESULT OF REBATES PAID TO IT, A GREAT ADVANTAGE
OVER ALL COMPETITORS IN THE COST OF ITS PRODUCT.  IT IS UNCONTESTED
THAT, AS A RESULT OF THE AGREEMENT, HAZEL HAS BEEN REPAID THE
$1,000,000 IT PAID HARTFORD AND HAS RECEIVED UPWARDS OF $800,000
ADDITIONAL. 

IN 1941 THE UNITED STATES INSTITUTED AN EQUITY SUIT IN NORTHERN OHIO
AGAINST HARTFORD, HAZEL, OWENS-ILLINOIS, AND OTHER CORPORATIONS AND
INDIVIDUALS TO RESTRAIN VIOLATION OF THE ANTITRUST STATUTES.  THAT
COURT FOUND THAT THE DEFENDANTS CONSPIRED TO VIOLATE THE ANTITRUST LAWS
AND ENTERED AN INJUNCTION ON OCTOBER 8, 1942.  (46 F.SUPP.  541.) 
HAZEL AND OTHER DEFENDANTS APPEALED TO THIS COURT.  THE SAME COUNSEL
REPRESENTED HAZEL IN THAT SUIT, AND IN THE APPEAL TO THIS COURT, AS
REPRESENTED THE COMPANY IN THE DISTRICT COURT AND IN THE THIRD CIRCUIT
COURT OF APPEALS IN THIS CASE.  IN ITS BRIEF IN THIS COURT HAZEL
STRENUOUSLY CONTENDED THAT THE LICENSE AGREEMENT EXECUTED IN 1932, AND
STILL IN FORCE, WAS NOT VIOLATIVE OF THE ANTITRUST LAWS AND SHOULD BE
SUSTAINED. 

OF COURSE, IN 1941 COUNSEL FOR HAZEL FACED THE POSSIBILITY THAT THE
DISTRICT COURT IN OHIO MIGHT FIND AGAINST HAZEL, AND THAT THIS COURT
MIGHT AFFIRM ITS DECISION.  CONSIDERATIONS OF PRUDENCE APPARENTLY
DICTATED THAT HAZEL SHOULD CAST AN ANCHOR TO WINDWARD.  ACCORDINGLY,
NOVEMBER 19, 1941, IT PRESENTED ITS PETITION FOR LEAVE TO FILE A BILL
OF REVIEW IN THE DISTRICT COURT FOR WESTERN PENNSYLVANIA AND ATTACHED A
COPY OF THE PROPOSED BILL.  IN ANSWER TO QUESTIONS AT OUR BAR AS TO THE
ULTIMATE PURPOSE OF THIS PROCEEDING, COUNSEL ADMITTED THAT, IF
SUCCESSFUL IN IT, HAZEL PROPOSED TO OBTAIN EVERY RESULTANT BENEFIT IT
COULD. 

IN THE LIGHT OF THE CIRCUMSTANCES RECITED, IT BECOMES HIGHLY
IMPORTANT CLOSELY TO SCRUTINIZE HAZEL'S ALLEGATIONS.  IT REFERS TO THE
USE BY THE CIRCUIT COURT OF APPEALS OF THE CLARKE ARTICLE IN THE
OPINION AND THEN AVERS: 

"THAT ALTHOUGH PRIOR TO THE DECISION OF THIS COURT YOUR PETITIONER
SUSPECTED AND BELIEVED THAT THE ARTICLE HAD BEEN WRITTEN BY ONE OF
PLAINTIFF'S EMPLOYEES, INSTEAD OF BY CLARKE, AND HAD BEEN CAUSED BY
PLAINTIFF TO BE PUBLISHED IN THE NATIONAL GLASS BUDGET, PETITIONER DID
NOT KNOW THEN OR UNTIL THIS YEAR MATERIAL AND PERTINENT FACTS WHICH, IF
PETITIONER HAD THEN KNOWN AND BEEN ABLE TO PRESENT TO THIS COURT,
SHOULD HAVE RESULTED IN A DECISION FOR PETITIONER. 

"THAT SUCH FACTS WERE DISCLOSED TO PETITIONER FOR THE FIRST TIME IN
SUIT OF UNITED STATES OF AMERICA V. HARTFORD, ET AL., IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, AND ARE
SPECIFIED IN PARAGRAPHS 4, 5 AND 6 OF THE ANNEXED BILL OF REVIEW, WHICH
IS MADE A PART HEREOF. 

"THAT YOUR PETITIONER COULD NOT HAVE ASCERTAINED BY THE USE OF PROPER
AND REASONABLE DILIGENCE THE NEWLY DISCOVERED FACTS PRIOR TO THE SAID
SUIT, AND THAT THE NEWLY DISCOVERED EVIDENCE IS TRUE AND MATERIAL AND
SHOULD CAUSE A DECREE IN THIS CAUSE DIFFERENT FROM THAT HERETOFORE
MADE." 

IN THE PROPOSED BILL OF REVIEW THESE ALLEGATIONS ARE REPEATED AND IT
IS ADDED THAT THE NEW FACTS ASCERTAINED CONSIST OF THE TESTIMONY OF
HATCH IN THE ANTITRUST SUIT AND FIVE LETTERS WRITTEN BY VARIOUS PARTIES
CONNECTED WITH THE CONSPIRACY AND A MEMORANDUM PREPARED BY HATCH WHICH
WERE IN EVIDENCE IN THAT SUIT.  THE BILL THEN ADDS: 

"THE NEW MATTER SPECIFIED IN THE PRECEDING PARAGRAPHS 4, 5 AND 6 IS
MATERIAL, IT ONLY RECENTLY BECAME KNOWN TO PLAINTIFF, WHICH COULD NOT
HAVE PREVIOUSLY OBTAINED IT WITH DUE DILIGENCE, AND SUCH NEW EVIDENCE
IF IT HAD BEEN PREVIOUSLY KNOWN TO THIS COURT AND TO THE CIRCUIT COURT
OF APPEALS WOULD HAVE CAUSED A DECISION DIFFERENT FROM THAT REACHED." 

NEITHER THE PETITION NOR THE BILL IS UNDER OATH BUT THERE IS ATTACHED
AN AFFIDAVIT OF COUNSEL FOR HAZEL IN WHICH HE STATES THAT IN OR BEFORE
1929 HAZEL "HAD SUSPECTED, AND I BELIEVED," THAT THE CLARKE ARTICLE HAD
BEEN WRITTEN BY HATCH AND THAT HARTFORD HAD CAUSED THE ARTICLE TO BE
PUBLISHED, ADDING:  "HAVING BEEN SO TOLD BY THE FIRM OF MESSRS.  WOOD
AND WOOD, CINCINNATI LAWYERS, WHO SAID THEY HAD SO BEEN TOLD BY CLARKE
AND ALSO BY HATCH."  THE AFFIDAVIT ALSO ATTACHES THE REPORTS OF THE
INVESTIGATOR ABOVE REFERRED TO AND REFERS TO THE EXHIBITS AND TESTIMONY
IN THE ANTITRUST SUIT IN NORTHERN OHIO. 

IN THE LIGHT OF THE FACTS I HAVE RECITED, IT SEEMS CLEAR THAT IF
HAZEL'S CONDUCT BE WEIGHED MERELY IN THE ASPECT OF NEGLIGENT FAILURE TO
INVESTIGATE, THE DECISION OF THIS COURT IN TOLEDO SCALE CO. V.
COMPUTING SCALE CO., 261 U.S. 399, MAY WELL JUSTIFY A HOLDING, ON ALL
AVAILABLE EVIDENCE, THAT, AT LEAST, HAZEL WAS GUILTY OF INEXCUSABLE
NEGLIGENCE IN NOT SEEKING THE EVIDENCE TO SUPPORT AN ATTACK UPON THE
DECREE.  BUT IT IS HIGHLY POSSIBLE THAT, UPON A FULL TRIAL, IT WILL BE
FOUND THAT HAZEL HELD BACK WHAT IT KNEW AND, IF SO, IS NOT ENTITLED NOW
TO ATTACK THE ORIGINAL DECREE.  IN SCOTTEN V. LITTLEFIELD, 235 U.S.
407, IN AFFIRMING THE DENIAL OF A BILL OF REVIEW, THIS COURT SAID THAT
IF THE CLAIM NOW MADE WAS "NOT PRESENTED TO THE COURT OF APPEALS WHEN
THERE ON APPEAL IT COULD NOT BE HELD BACK AND MADE THE SUBJECT OF A
BILL OF REVIEW, AS IS NOW ATTEMPTED TO BE DONE."  REPEATEDLY THIS COURT
HAS HELD THAT ONE WILL NOT BE PERMITTED TO LITIGATE BY BILL OF REVIEW A
QUESTION WHICH IT HAD THE OPPORTUNITY TO LITIGATE IN THE MAIN SUIT,
WHETHER THE LITIGANT PURPOSELY ABSTAINED FROM BRINGING FORWARD THE
DEFENSE OR NEGLIGENTLY OMITTED TO PROSECUTE INQUIRIES WHICH WOULD HAVE
MADE IT AVAILABLE.  FN19 

AND CERTAINLY AN ISSUE OF SUCH IMPORTANCE AFFECTING THE VALIDITY OF A
JUDGMENT, SHOULD NEVER BE TRIED ON AFFIDAVITS.  FN20 

AS I READ THE OPINION OF THE COURT, IT DISREGARDS THE CONTENTS OF
MANY OF THE AFFIDAVITS FILED IN THE CAUSE AND HOLDS THAT SOLELY BECAUSE
OF THE FRAUD WHICH WAS PRACTICED ON THE PATENT OFFICE AND IN LITIGATION
ON THE PATENT, THE OWNER OF THE PATENT IS TO BE AMERCED AND IN EFFECT
FINED FOR THE BENEFIT OF THE OTHER PARTY TO THE SUIT, ALTHOUGH THAT
OTHER COMES WITH UNCLEAN HANDS  FN21 AND STANDS ADJUDGED A PARTY TO A
CONSPIRACY TO BENEFIT OVER A PERIOD OF TWELVE YEARS UNDER THE AEGIS OF
THE VERY PATENT IT NOW ATTACKS FOR FRAUD.  TO DISREGARD THESE
CONSIDERATIONS, TO PRECLUDE INQUIRY CONCERNING THESE MATTERS, IS
RECKLESSLY TO PUNISH ONE WRONGDOER FOR THE BENEFIT OF ANOTHER, ALTHOUGH
PUNISHMENT HAS NO PLACE IN THIS PROCEEDING. 

HAZEL WELL UNDERSTOOD THE COURSE OF DECISION IN FEDERAL COURTS.  IT
CAME INTO THE CIRCUIT COURT OF APPEALS WITH A PETITION FOR LEAVE TO
FILE A BILL OF REVIEW, A PROCEDURE REQUIRED BY LONG-SETTLED
PRINCIPLES.  INASMUCH AS THE JUDGMENT IT ATTACKED HAD BEEN ENTERED AS A
RESULT OF THE ACTION OF THE CIRCUIT COURT OF APPEALS, HAZEL PROPERLY
APPLIED TO THAT COURT FOR LEAVE TO FILE ITS BILL IN THE DISTRICT
COURT.  FN22  THE RESPONDENT DID NOT OBJECT ON PROCEDURAL GROUNDS TO
THE CIRCUIT COURT OF APPEALS CONSIDERING AND ACTING ON THE PETITION. 
THAT COURT OF ITS OWN MOTION DENIED THE PETITION AND PERMITTED
AMENDMENT TO PRAY RELIEF THERE.    ON THE QUESTION WHAT AMOUNTS TO A
SUFFICIENT SHOWING TO MOVE AN APPELLATE COURT TO GRANT LEAVE TO FILE A
BILL OF REVIEW IN THE TRIAL COURT, THE AUTHORITIES ARE NOT UNIFORM. 
WHERE THE LACK OF MERIT IS OBVIOUS, APPELLATE COURTS HAVE REFUSED
LEAVE,  FN23  BUT WHERE THE FACTS ARE COMPLICATED IT IS OFTEN THE
BETTER COURSE TO GRANT LEAVE AND TO ALLOW AVAILABLE DEFENSES TO BE MADE
IN ANSWER TO THE BILL.  FN24  IN THE PRESENT INSTANCE, I THINK IT WOULD
HAVE BEEN PROPER FOR THE COURT TO PERMIT THE FILING OF THE BILL IN THE
DISTRICT COURT WHERE THE RIGHTS OF THE PARTIES TO SUMMON, TO EXAMINE,
AND TO CROSS-EXAMINE WITNESSES, AND TO HAVE A DELIBERATE AND ORDERLY
TRIAL OF THE ISSUES ACCORDING TO THE ESTABLISHED STANDARDS WOULD BE
PRESERVED. 

I SHOULD REVERSE THE ORDER OF THE CIRCUIT COURT OF APPEALS WITH
DIRECTIONS TO PERMIT THE FILING OF THE BILL IN THE DISTRICT COURT. 

FN1  UNITED STATES V. AMERICAN BELL TELEPHONE CO., 128 U.S. 315; 167
U.S. 224, 238. 

FN2  THE FACTS WITH RESPECT TO THE FRAUD PRACTICED ON THE PATENT
OFFICE HAVE BEEN KNOWN FOR SOME YEARS. 

FN3  BANK OF UNITED STATES V. MOSS, 6 HOW.  31, 38; ROEMER V. SIMON,
91 U.S. 149; PHILLIPS V. NEGLEY, 117 U.S. 665, 672, 678; HICKMAN V.
FORT SCOTT, 141 U.S. 415; TUBMAN V. BALTIMORE & OHIO R. CO., 190 U.S.
38; WETMORE V. KARRICK, 205 U.S. 141, 151-2; IN RE METROPOLITAN TRUST
CO., 218 U.S. 312, 320; DELAWARE, L. & W.R. CO. V. RELLSTAB, 276 U.S.
1, 5; REALTY ACCEPTANCE CORP. V. MONTGOMERY, 284 U.S. 547, 549. 

FN4  CAMERON V. MCROBERTS, 3 WHEAT.  591; SIBBALD V. UNITED STATES,
12 PET. 488, 492; WASHINGTON BRIDGE CO. V. STEWART, 3 HOW.  413, 426;
CENTRAL TRUST CO. V. GRANT LOCOMOTIVE WORKS, 135 U.S. 207; WAYNE GAS
CO. V. OWENS-ILLINOIS CO., 300 U.S. 131, 136; SPRAGUE V. TICONIC BANK,
307 U.S. 161, 169. 

FN5  UNITED STATES V. MAYER, 235 U.S. 55, 67.  IN THIS CASE ONE
FREEMAN WAS CONVICTED IN THE DISTRICT COURT.  AFTER HE HAD TAKEN AN
APPEAL TO THE CIRCUIT COURT OF APPEALS HE FILED, AFTER THE TERM HAD
EXPIRED, A MOTION TO SET ASIDE THE JUDGMENT ON THE GROUND THAT A JUROR
WILFULLY CONCEALED BIAS AGAINST THE DEFENDANT WHEN EXAMINED ON HIS VOIR
DIRE.  AFTER HEARING THIS MOTION THE DISTRICT JUDGE FOUND AS A FACT
THAT THE JUROR HAD BEEN GUILTY OF MISCONDUCT AND THAT THE DEFENDANT AND
HIS COUNSEL NEITHER HAD KNOWLEDGE OF THE WRONG NOR COULD HAVE
DISCOVERED IT EARLIER BY DUE DILIGENCE.  THE DISTRICT JUDGE WAS IN
DOUBT WHETHER, AFTER THE EXPIRATION OF THE TERM, HE HAD POWER TO DEAL
WITH THE JUDGMENT OF CONVICTION.  THE CIRCUIT COURT OF APPEALS
CERTIFIED THE QUESTION TO THIS COURT WHICH, IN A UNANIMOUS OPINION,
RENDERED AFTER FULL ARGUMENT BY ABLE COUNSEL, HELD IN ACCORDANCE WITH
ALL EARLIER PRECEDENTS THAT, EVEN IN A CASE OF SUCH HARDSHIP, THE
DISTRICT COURT HAD NO SUCH POWER. 

FN6  HUDSON V. GUESTIER, 7 CR. 1; JACKSON V. ASHTON, 10 PET. 480;
SIBBALD V. UNITED STATES, SUPRA, 492; WASHINGTON BRIDGE CO. V. STEWART,
SUPRA; BROOKS V. RAILROAD CO., 102 U.S. 107; BARNEY V. FRIEDMAN, 107
U.S. 629; HICKMAN V. FORT SCOTT, SUPRA, 419; BUSHNELL V. CROOKE MINING
CO., 150 U.S. 82. 

FN7  EX PARTE NATIONAL PARK BANK, 256 U.S. 131.  "THAT COURT WAS
POWERLESS TO MODIFY THE DECREE AFTER THE EXPIRATION OF THE TERM AT
WHICH IT WAS ENTERED.  IF THE OMISSION IN THE DECREE HAD BEEN
ADEQUATELY CALLED TO THE COURT'S ATTENTION DURING THE TERM IT WOULD
DOUBTLESS HAVE CORRECTED THE ERROR COMPLAINED OF; OR RELIEF MIGHT HAVE
BEEN SOUGHT IN THIS COURT BY A PETITION FOR A WRIT OF CERTIORARI.  THE
BANK FAILED TO AVAIL ITSELF OF REMEDIES OPEN TO IT."  (P. 133.)  THE
CIRCUIT COURTS OF APPEAL HAVE UNIFORMLY OBSERVED THE RULE THUS
ANNOUNCED.  HART V. WILTSEE, 25 F.2D 863; NACHOD V. ENGINEERING &
RESEARCH CORP., 108 F.2D 594; MONTGOMERY V. REALTY ACCEPTANCE CORP., 51
F.2D 642; FOSTER BROS. MFG. CO. V. LABOR BOARD, 90 F.2D 948; WICHITA
ROYALTY CO. V. CITY NATIONAL BANK, 97 F.2D 249; HAWKINS V. CLEVELAND,
C., C. & ST. L. RY. CO., 99 F. 322; WALSH CONSTRUCTION CO. V. U.S.
GUARANTEE CO., 76 F.2D 240; WASKEY V. HAMMER, 179 F. 273. 

FN8  SIBBALD V. UNITED STATES, SUPRA, 492; ROEMER V. SIMON, 91 U.S.
149; IN RE SANFORD FORK & TOOL CO., 160 U.S. 247. 

FN9  EX PARTE BOLLMAN, 4 CR. 75, 93. 

FN10  JUDICIAL CODE SEC. 128 AS AMENDED; 28 U.S.C. 225. 

FN11  CARY V. CURTIS, 3 HOW.  236, 245.  SEE SHELDON V. SILL, 8 HOW. 
441, 449; KENTUCKY V. POWERS, 201 U.S. 1, 24. 

FN12  WHITNEY V. DICK, 202 U.S. 132, 137; UNITED STATES V. MAYER,
SUPRA, 65; REALTY ACCEPTANCE CORP. V. MONTGOMERY, SUPRA, 549. 

FN13  RUSSELL V. SOUTHARD, 12 HOW.  139, 158, 159; UNITED STATES V.
KNIGHT'S ADM'R, 1 BLACK 488; ROEMER V. SIMON, SUPRA.  IN THE RUSSELL
CASE CHIEF JUSTICE TANEY SAID:  "IT IS VERY CLEAR THAT AFFIDAVITS OF
NEWLY-DISCOVERED TESTIMONY CANNOT BE RECEIVED FOR SUCH A PURPOSE.  THIS
COURT MUST AFFIRM OR REVERSE UPON THE CASE AS IT APPEARS IN THE
RECORD.  WE CANNOT LOOK OUT OF IT, FOR TESTIMONY TO INFLUENCE THE
JUDGMENT OF THIS COURT SITTING, AS AN APPELLATE TRIBUNAL.  AND,
ACCORDING TO THE PRACTICE OF THE COURT OF CHANCERY FROM ITS EARLIEST
HISTORY TO THE PRESENT TIME, NO PAPER NOT BEFORE THE COURT BELOW CAN BE
READ ON THE HEARING OF AN APPEAL.  EDEN V. EARL BUTE, 1 BRO. PAR. CAS.
465; 3 BRO. PAR. CAS. 546; STUDWELL V. PALMER, 5 PAIGE, 166. 

"INDEED, IF THE ESTABLISHED CHANCERY PRACTICE HAD BEEN OTHERWISE, THE
ACT OF CONGRESS OF MARCH 3D, 1803, EXPRESSLY PROHIBITS THE INTRODUCTION
OF NEW EVIDENCE, IN THIS COURT, ON THE HEARING OF AN APPEAL FROM A
CIRCUIT COURT, EXCEPT IN ADMIRALTY AND PRIZE CAUSES." 

FN14  REALTY ACCEPTANCE CORP. V. MONTGOMERY, SUPRA, 550, 551. 

FN15  A BILL FILED TO CORRECT ERROR OF LAW APPARENT ON THE RECORD IS
CALLED A STRICT BILL OF REVIEW AND SOME RULES AS TO TIME ARE PECULIARLY
APPLICABLE TO SUCH BILLS.  SEE WHITING V. BANK OF UNITED STATES, 13
PET. 6, 13, 14, 15; SHELTON V. VAN KLEECK, 106 U.S. 532; CENTRAL TRUST
CO. V. GRANT LOCOMOTIVE WORKS, 135 U.S. 207.  STREET, FEDERAL EQUITY
PRACTICE, SEC. 2129 ET SEQ. WITH THIS TYPE OF BILL WE ARE NOT HERE
CONCERNED. 

FN16  OCEAN INS. CO. V. FIELDS, 2 STORY 59; WHITING V. BANK OF UNITED
STATES, SUPRA; SOUTHARD V. RUSSELL, 16 HOW.  547; MINNESOTA CO. V. ST.
PAUL CO., 2 WALL.  609; PURCELL V. MINER, 4 WALL.  519; RUBBER CO. V.
GOODYEAR, 9 WALL.  805; EASLEY V. KELLOM, 14 WALL.  279; PUTNAM V. DAY,
22 WALL.  60; BUFFINGTON V. HARVEY, 95 U.S. 99; CRAIG V. SMITH, 100
U.S. 226; SHELTON V. VAN KLEECK, SUPRA; PACIFIC RAILROAD V. MISSOURI
PACIFIC RY. CO., 111 U.S. 505; CENTRAL TRUST CO. V. GRANT LOCOMOTIVE
WORKS, SUPRA; BOONE COUNTY V. BURLINGTON & M.R.R. CO., 139 U.S. 684;
HOPKINS V. HEBARD, 235 U.S. 287; SCOTTEN V. LITTLEFIELD, 235 U.S. 407;
NATIONAL BRAKE & ELECTRIC CO. V. CHRISTENSEN, 254 U.S. 425; SIMMONS CO.
V. GRIER BROS. CO., 258 U.S. 82; JACKSON V. IRVING TRUST CO., 311 U.S.
494, 499. 

FN17  LOGAN V. PATRICK, 5 CR. 288; MARINE INS. CO. V. HODGSON, 7 CR.
332; DUNN V. CLARKE, 8 PET. 1; TRULY V. WANZER, 5 HOW.  141; CREATH'S
ADM'R V. SIMS, 5 HOW.  192; HUMPHREYS V. LEGGETT, 9 HOW.  297; WALKER
V. ROBBINS, 14 HOW.  584; HENDRICKSON V. HINCKLEY, 17 HOW.  443;
LEGGETT V. HUMPHREYS, 21 HOW.  66; GUE V. TIDE WATER CANAL CO., 24
HOW.  257; FREEMAN V. HOWE, 24 HOW.  450; KIBBE V. BENSON, 17 WALL. 
624; CRIM V. HANDLEY, 94 U.S. 652; BROWN V. COUNTY OF BUENA VISTA, 95
U.S. 157; UNITED STATES V. THROCKMORTON, 98 U.S. 61; BRONSON V.
SCHULTEN, 104 U.S. 410; EMBRY V. PALMER, 107 U.S. 3; WHITE V. CROW, 110
U.S. 183; KRIPPENDORF V. HYDE, 110 U.S. 276; JOHNSON V. WATERS, 111
U.S. 640; RICHARDS V. MACKALL, 124 U.S. 183; ARROWSMITH V. GLEASON, 129
U.S. 86; KNOX COUNTY V. HARSHMAN, 133 U.S. 152; MARSHALL V. HOLMES, 141
U.S. 589; NORTH CHICAGO ROLLING MILL CO. V. ST. LOUIS ORE & STEEL CO.,
152 U.S. 596; ROBB V. VOS, 155 U.S. 13; HOWARD V. DE CORDOVA, 177 U.S.
609; UNITED STATES V. BEEBE, 180 U.S. 343; PICKFORD V. TALBOTT, 225
U.S. 651; SIMON V. SOUTHERN RY. CO., 236 U.S. 115; WELLS FARGO & CO. V.
TAYLOR, 254 U.S. 175. 

FN18  IT HAS FREQUENTLY BEEN SAID THAT WHERE THE GROUND FOR A BILL OF
REVIEW IS FRAUD, REVIEW WILL NOT BE GRANTED UNLESS THE FRAUD WAS
EXTRINSIC.  SEE UNITED STATES V. THROCKMORTON, 98 U.S. 61.  THE
DISTINCTION BETWEEN EXTRINSIC AND INTRINSIC FRAUD IS NOT TECHNICAL BUT
SUBSTANTIAL.  THE STATEMENT THAT ONLY EXTRINSIC FRAUD MAY BE THE BASIS
OF A BILL OF REVIEW IS MERELY A COROLLARY OF THE RULE THAT REVIEW WILL
NOT BE GRANTED TO PERMIT RELITIGATION OF MATTERS WHICH WERE IN ISSUE IN
THE CAUSE AND ARE, THEREFORE, CONCLUDED BY THE JUDGMENT OR DECREE.  THE
CLASSICAL EXAMPLE OF INTRINSIC AS CONTRASTED WITH EXTRINSIC FRAUD IS
THE COMMISSION OF PERJURY BY A WITNESS.  WHILE PERJURY IS A FRAUD UPON
THE COURT, THE CREDIBILITY OF WITNESSES IS IN ISSUE, FOR IT IS ONE OF
THE MATTERS ON WHICH THE TRIER OF FACT MUST PASS IN ORDER TO REACH A
FINAL JUDGMENT.  AN ALLEGATION THAT A WITNESS PERJURED HIMSELF IS
INSUFFICIENT BECAUSE THE MATERIALITY OF THE TESTIMONY, AND OPPORTUNITY
TO ATTACK IT, WAS OPEN AT THE TRIAL.  WHERE THE AUTHENTICITY OF A
DOCUMENT RELIED ON AS PART OF A LITIGANT'S CASE IS MATERIAL TO
ADJUDICATION, AS WAS THE GRANT IN THE THROCKMORTON CASE, AND THERE WAS
OPPORTUNITY TO INVESTIGATE THIS MATTER, FRAUD IN THE PREPARATION OF THE
DOCUMENT IS NOT EXTRINSIC BUT INTRINSIC AND WILL NOT SUPPORT REVIEW. 
ANY FRAUD CONNECTED WITH THE PREPARATION OF THE CLARKE ARTICLE IN THIS
CASE WAS EXTRINSIC, AND, SUBJECT TO OTHER RELEVANT RULES, WOULD SUPPORT
A BILL OF REVIEW. 

FN19  HENDRICKSON V. HINCKLEY, SUPRA, 446; RUBBER CO. V. GOODYEAR,
SUPRA, 806; CRIM V. HANDLEY, SUPRA, 660; BRONSON V. SCHULTEN, SUPRA,
417, 418; RICHARDS V. MACKALL, SUPRA, 188, 189; BOONE COUNTY V.
BURLINGTON & M.R.R. CO., SUPRA, 693; PICKFORD V. TALBOTT, SUPRA, 658. 

FN20  JACKSON V. IRVING TRUST CO., SUPRA, 499; SORENSON V.
SUTHERLAND, 109 F.2D 714, 719. 

FN21  CREATH'S ADM'R V. SIMS, SUPRA, 204. 

FN22  SOUTHARD V. RUSSELL, SUPRA, 570, 571; PURCELL V. MINER, SUPRA,
519; RUBBER CO. V. GOODYEAR, SUPRA; NATIONAL BRAKE & ELECTRIC CO. V.
CHRISTENSEN, SUPRA, 431; SIMMONS CO. V. GRIER BROS. CO., SUPRA, 91. 

FN23  PURCELL V. MINER, SUPRA; RUBBER CO. V. GOODYEAR, SUPRA. 

FN24  OCEAN INSURANCE CO. V. FIELDS, 2 STORY 59; IN RE GAMEWELL FIRE
ALARM TEL. CO., 73 F. 908; RAFFOLD PROCESS CORP. V. CASTANEA PAPER CO.,
105 F.2D 126. 

MR. JUSTICE REED AND MR. JUSTICE FRANKFURTER JOIN IN THIS OPINION. 

THE CHIEF JUSTICE AGREES WITH THE RESULT SUGGESTED IN THIS DISSENT. 
..END :












SHAWKEE MFG. CO. V. HARTFORD CO., 322 U.S. 271 


NO. 423.  ARGUED FEBRUARY 9, 10, 1944.  - DECIDED MAY 15, 1944.  - 137
F.2D 764, REVERSED. 


DECIDED UPON THE AUTHORITY OF HAZEL-ATLAS GLASS CO. V. HARTFORD-EMPIRE
CO., ANTE, P. 238. 

SHAWKEE MANUFACTURING CO. ET AL. V. HARTFORD-EMPIRE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 320 U.S. 732, TO REVIEW AN ORDER OF THE CIRCUIT COURT OF
APPEALS DENYING RELIEF IN A BILL OF REVIEW PROCEEDING COMMENCED IN THAT
COURT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

HERE AS IN HAZEL-ATLAS GLASS CO. V. HARTFORD-EMPIRE CO., ANTE, P.
238, THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT HAS DECLINED TO
SET ASIDE JUDGMENTS ENTERED AT A PRIOR TERM.  137 F.2D 764.  BOTH THIS
CASE AND THE HAZEL-ATLAS CASE INVOLVE THE VALIDITY OF JUDGMENTS
OBTAINED BY HARTFORD-EMPIRE ADJUDICATING INFRINGEMENT OF THE "GOB
FEEDING" PATENT NO. 1,655,391 OWNED BY HARTFORD.  IN THE HAZEL-ATLAS
CASE, SUPRA, WE HAVE HELD HARTFORD'S PROVEN FRAUDS IN CONNECTION WITH
OBTAINING AND ENFORCING THAT PATENT WERE OF SUCH NATURE THAT THE DECREE
OF INFRINGEMENT AGAINST HAZEL-ATLAS SHOULD BE SET ASIDE, AND HAVE
DIRECTED THAT APPROPRIATE ORDERS BE ENTERED TO ACCOMPLISH THAT
PURPOSE.  NEVERTHELESS, IT IS ARGUED THAT THE DECREES RENDERED AGAINST
SHAWKEE AND OTHERS SHOULD BE ALLOWED TO STAND BECAUSE OF CERTAIN
DIFFERENCES BETWEEN THEIR SITUATION AND THAT OF HAZEL-ATLAS.  THESE ARE
THE DIFFERENTIATING FACTS: 

HARTFORD'S INFRINGEMENT SUIT AGAINST SHAWKEE AND THE OTHER PETITIONERS
WAS NOT BEGUN UNTIL 1933 AFTER THE DECISION OF THE THIRD CIRCUIT COURT
OF APPEALS THE PREVIOUS YEAR HOLDING HARTFORD'S "GOB FEEDING" PATENT
VALID AND INFRINGED BY HAZEL-ATLAS.  THE DISTRICT COURT, HAVING BEEN
REVERSED BY THAT PREVIOUS DECISION, HELD SHAWKEE AND THE OTHERS GUILTY
OF INFRINGEMENT.  ON APPEAL TO THE THIRD CIRCUIT COURT OF APPEALS, THAT
COURT DID NOT AGAIN QUOTE FROM THE SPURIOUS CLARKE ARTICLE BUT, LIKE
THE DISTRICT COURT, SIMPLY HELD IN FAVOR OF HARTFORD ON THE AUTHORITY
OF THE 1932 DECISION.  68 F.2D 726.  WHILE THE APPEAL WAS PENDING FINAL
DISPOSITION IN THE CIRCUIT COURT, SHAWKEE'S COUNSEL COMMUNICATED WITH
JUDGE BUFFINGTON CHARGING THAT THE CLARKE ARTICLE WAS SPURIOUS; BUT AT
THAT TIME SHAWKEE HAD NO DIRECT PROOF OF ITS CHARGE.  THAT PROOF, AS
POINTED OUT IN OUR HAZEL-ATLAS OPINION, SUPRA, WAS AVAILABLE ONLY AFTER
THE UNITED STATES OFFERED ITS EVIDENCE IN THE ANTI-TRUST SUIT IN 1941. 

NONE OF THESE FACTS, WE THINK, SHOULD DEPRIVE SHAWKEE AND THE OTHERS
OF RELIEF AGAINST HARTFORD'S FRAUDULENT CONDUCT.  TO OBTAIN ITS
JUDGMENT AGAINST THEM, HARTFORD SUCCESSFULLY USED THE JUDGMENT AGAINST
HAZEL-ATLAS WITHOUT DISCLOSING ITS PREVIOUS MISCONDUCT.  KEYSTONE
DRILLER CO. V. EXCAVATOR CO., 290 U.S. 240, 246-247.  HARTFORD CAN
DERIVE NO AID FROM THE FACT THAT SHAWKEE REPORTED TO THE CIRCUIT COURT
ITS BELIEF AS TO THE DECEPTIVE AUTHORSHIP OF THE CLARKE ARTICLE.  WITH
THAT CHARGE ON THE RECORD, HONEST DEALING WITH THE COURT REQUIRED THAT
HARTFORD SHOULD MAKE A FULL DISCLOSURE OF ITS FRAUDULENT CONSPIRACY. 
ITS FAILURE TO DO SO UNDER THESE CIRCUMSTANCES AGGRAVATED THE PREVIOUS
DECEPTION IT HAD PRACTICED ON THE PATENT OFFICE AND THE COURTS. 

THE PRAYER FOR RELIEF OF SHAWKEE AND THE OTHERS WAS THAT THE COURT
ADJUDGE THAT HARTFORD DID NOT COME INTO COURT WITH CLEAN HANDS, AND
THAT THEY BE FULLY FREED FROM FURTHER OBLIGATIONS UNDER THE JUDGMENTS
AGAINST THEM.  THIS RELIEF SHOULD BE GRANTED.  THEY FURTHER PRAYED THAT
A MASTER BE APPOINTED BY THE CIRCUIT COURT OF APPEALS TO RENDER AN
ACCOUNTING OF COSTS INCURRED IN THESE AND FORMER PROCEEDINGS, MONEYS
PAID BY THEM TO HARTFORD PURSUANT TO THE CHALLENGED JUDGMENTS, AND
DAMAGES SUSTAINED BY THEM BECAUSE OF HARTFORD'S UNLAWFUL USE OF ITS
PATENT.  WHETHER THIS TYPE OF RELIEF WILL BE GRANTED MUST DEPEND UPON
FURTHER PROCEEDINGS IN THE DISTRICT COURT WHICH ENTERED THE JUDGMENT OF
INFRINGEMENT. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED.  THE CAUSE
IS REMANDED TO IT WITH DIRECTIONS TO SET ASIDE ITS 1934 JUDGMENT,
RECALL THE MANDATE, AND DISMISS THE APPEAL; AND ISSUE MANDATE TO THE
DISTRICT COURT WITH DIRECTIONS TO SET ASIDE ITS JUDGMENT FINDING
HARTFORD'S PATENT VALID AND INFRINGED, DENY HARTFORD ALL RELIEF AGAINST
INFRINGEMENT OF THIS PATENT, AND PERMIT SHAWKEE AND THE OTHERS TO BRING
SUCH FURTHER PROCEEDINGS AS MAY BE APPROPRIATE IN ACCORDANCE WITH THEIR
PRAYER FOR RELIEF.  REVERSED. 

MR. JUSTICE ROBERTS: 

FOR THE REASONS GIVEN IN MY DISSENT IN HAZEL-ATLAS GLASS CO. V.
HARTFORD-EMPIRE CO., ANTE, P. 251, I THINK THAT THE DECREE SHOULD BE
REVERSED AND THE CAUSE REMANDED, WITH DIRECTIONS TO THE COURT BELOW TO
GRANT THE PETITIONERS LEAVE TO FILE A BILL OF REVIEW IN THE DISTRICT
COURT. 

MR. JUSTICE REED AND MR. JUSTICE FRANKFURTER JOIN IN THIS OPINION. 

THE CHIEF JUSTICE AGREES WITH THE RESULT SUGGESTED IN THIS DISSENT. 
..END :



DOUGLAS V. COMMISSIONER, 322 U.S. 275 


ARGUED MARCH 7, 1944.  - DECIDED MAY 15, 1944.  - 134 F.2D 762,
AFFIRMED. 


1.  ARTICLE 23(M)-10(C) OF TREASURY REGULATIONS 94, WHICH IN THE CASE
OF A LEASE OF AN IRON ORE MINE TERMINATED IN 1937 WITHOUT ANY ORE
HAVING BEEN EXTRACTED DURING THE EXISTENCE OF THE LEASE, REQUIRES THAT
DEPLETION DEDUCTIONS TAKEN IN PRIOR YEARS ON RECEIPT OF ADVANCE
ROYALTIES BE RESTORED TO THE LESSOR'S CAPITAL ACCOUNT AND THAT A
CORRESPONDING AMOUNT BE RETURNED AS INCOME FOR THE YEAR IN WHICH THE
LEASE WAS TERMINATED, HELD VALID, AS AUTHORIZED BY AND CONSISTENT WITH
SEC. 23(M) OF THE REVENUE ACT OF 1936, AND NOT INCONSISTENT WITH SECS.
113(B)(1)(B) AND 114(B)(1) OR SECS. 41 AND 42 OF THE ACT.  P. 280. 

2.  A JUDGMENT OF THE CIRCUIT COURT OF APPEALS REVERSING A DECISION
OF THE BOARD OF TAX APPEALS WHICH REFUSED TO TREAT AS INCOME OF THE
TAXPAYER FOR THE YEAR IN WHICH THE LEASE WAS TERMINATED THE AMOUNT OF A
DEPLETION DEDUCTION WHICH, IN THE YEAR TAKEN AND ALLOWED, RESULTED IN
NO TAX BENEFIT, AFFIRMED HERE BY AN EQUALLY DIVIDED COURT.  P. 287. 

DOUGLAS V. COMMISSIONER OF INTERNAL REVENUE. 

NOS. 130 AND 131.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
EIGHTH CIRCUIT.* 

*TOGETHER WITH NO. 132, ESTATE OF ROBINSON ET AL. V. COMMISSIONER OF
INTERNAL REVENUE, AND NO. 133, DALRYMPLE V. COMMISSIONER OF INTERNAL
REVENUE, ALSO ON WRITS OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 320 U.S. 734, TO REVIEW A JUDGMENT WHICH AFFIRMED IN PART
AND REVERSED IN PART A DECISION OF THE BOARD OF TAX APPEALS UPON REVIEW
OF DETERMINATIONS OF DEFICIENCIES IN INCOME TAX. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE COMMISSIONER OF INTERNAL REVENUE ASSESSED INCOME TAX DEFICIENCIES
AGAINST THE PETITIONERS FOR THE YEAR 1937, BECAUSE OF THEIR FAILURE TO
INCLUDE IN INCOME FOR THAT YEAR SUMS REQUIRED TO BE REPORTED BY THE
TERMS OF ARTICLE 23(M)-10(C) OF TREASURY REGULATIONS 94, ISSUED
PURSUANT TO SEC. 23(M), REVENUE ACT OF 1936.  THE FACTS WERE NOT IN
DISPUTE.  BESSIE P. DOUGLAS, THE PETITIONER IN NOS. 130 AND 131, WAS IN
1929 CO-OWNER WITH ADELINE R. MORSE, CHARLES H. ROBINSON, AND IRENE B.
ROBINSON CIRKLER OF AN IRON ORE MINE IN ST. LOUIS COUNTY, MINNESOTA,
KNOWN AS THE PETTIT MINE.  THE PETITIONERS IN NO. 132 ARE THE EXECUTORS
OF THE ESTATE OF CHARLES H. ROBINSON, AND THE PETITIONER IN NO. 133 IS
THE TRANSFEREE OF THE ASSETS OF THE ESTATE OF IRENE B. ROBINSON
CIRKLER, DECEASED.  FN1  IN 1929 ITS CO-OWNERS LEASED THIS MINE TO THE
REPUBLIC STEEL CORPORATION.  THE LEASE, AS AMENDED IN 1933, RAN FOR A
TERM OF THIRTY YEARS, BUT THE LESSEE WAS GIVEN THE POWER TO CANCEL IT
AT THE END OF EIGHT YEARS.  THE LESSEE UNDERTOOK TO PAY A ROYALTY OF 40
CENTS A TON FOR THE ORE REMOVED AND GUARANTEED MINIMUM ROYALTIES OF
$20,000 A YEAR FOR THE FIRST FIVE YEARS AND $40,000 A YEAR THEREAFTER,
SUBJECT AFTER FIVE YEARS TO THE PAYMENT OF $60,000 A YEAR AS A MINIMUM
DURING THE TIME IT FAILED TO REMOVE CERTAIN WATER FROM THE MINE.  IN
CASE THE GUARANTEE REQUIRED THE LESSEE TO PAY IN ANY ONE YEAR FOR MORE
ORE THAN IT ACTUALLY REMOVED, IT WAS ENTITLED TO HAVE THE EXCESS
PAYMENT APPLIED AGAINST REMOVALS IN LATER YEARS.  THE LESSEE PAID THE
MINIMUM ROYALTIES EACH YEAR, BUT IT REMOVED NO ORE AT ALL, AND AS OF
JULY 1, 1937, AT THE END OF THE EIGHT-YEAR PERIOD, IT SURRENDERED THE
LEASE.  EACH LESSOR TOOK A PROPER DEPLETION DEDUCTION IN THE RESPECTIVE
YEARS THE ROYALTIES WERE PAID, 1929 TO 1936, INCLUSIVE.  IN THE YEAR
1933, BESSIE P. DOUGLAS CLAIMED A DEPLETION DEDUCTION OF $4,958.05, BUT
SINCE SHE HAD SUSTAINED A NET LOSS OF $13,947.51, THIS DEDUCTION DID
NOT AFFECT HER TAX LIABILITY.  THE COMMISSIONER REQUIRED ALL OF THE
DEDUCTIONS TO BE TAXED AS INCOME IN 1937.  THE BOARD OF TAX APPEALS
AFFIRMED HIS CONCLUSION, EXCEPT AS TO THE 1933 DEDUCTIONS BY BESSIE P.
DOUGLAS, WHICH WAS REVERSED.  46 B.T.A. 943.  UPON APPEALS BY THE
TAXPAYERS AND, IN NO. 131, BY THE COMMISSIONER, THE CIRCUIT COURT OF
APPEALS UPHELD THE ORIGINAL ASSESSMENTS.  134 F.2D 762.  WE GRANTED
PETITIONS FOR WRITS OF CERTIORARI TO SETTLE A QUESTION RESERVED BY OUR
DECISION IN HERRING V. COMMISSIONER, 293 U.S. 322, 328, AS TO COST
DEPLETION, AND TO CONSIDER AN ISSUE SIMILAR TO THAT INVOLVED IN DOBSON
V. COMMISSIONER, 320 U.S. 489. 

THE REVENUE ACT OF 1913, SEC. IIG)(B), GRANTED A DEDUCTION FOR
DEPLETION BASED SOLELY ON ACTUAL PRODUCTION AND "NOT TO EXCEED 5 PER
CENTUM OF THE GROSS VALUE AT THE MINE OF THE OUTPUT FOR THE YEAR." 
UNDER THIS ACT, ADVANCE ROYALTIES WERE TAXED WITHOUT DEDUCTION FOR
DEPLETION.  IN 1916 CONGRESS REMOVED THE 5% CEILING, BUT THE DEDUCTION
WAS STILL LIMITED TO THE YEAR OF ACTUAL EXTRACTION.  REVENUE ACT OF
1916, SEC. 5(A) EIGHTH (B).  THE RELEVANT PARTS OF THE DEPLETION
1918, WHICH, LIKE THE 1916 ACT, AUTHORIZED "A REASONABLE ALLOWANCE FOR
DEPLETION  ...  UNDER RULES AND REGULATIONS TO BE PRESCRIBED" WITH THE
APPROVAL OF THE SECRETARY OF THE TREASURY; BUT THE 1918 ACT NO LONGER
LIMITED THE ALLOWANCE TO THE PRODUCT ACTUALLY MINED AND SOLD DURING THE
YEAR.  THE SECTION NOW READS AS FOLLOWS: 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

.         .         .         .         . 

"(M)  DEPLETION.  - IN THE CASE OF MINES, OIL AND GAS WELLS, OTHER
NATURAL DEPOSITS, AND TIMBER, A REASONABLE ALLOWANCE FOR DEPLETION AND
FOR DEPRECIATION OF IMPROVEMENTS, ACCORDING TO THE PECULIAR CONDITIONS
IN EACH CASE; SUCH REASONABLE ALLOWANCE IN ALL CASES TO BE MADE UNDER
RULES AND REGULATIONS TO BE PRESCRIBED BY THE COMMISSIONER, WITH THE
APPROVAL OF THE SECRETARY.  IN ANY CASE IN WHICH IT IS ASCERTAINED AS A
RESULT OF OPERATIONS OR OF DEVELOPMENT WORK THAT THE RECOVERABLE UNITS
ARE GREATER OR LESS THAN THE PRIOR ESTIMATE THEREOF, THEN SUCH PRIOR
ESTIMATE (BUT NOT THE BASIS FOR DEPLETION) SHALL BE REVISED AND THE
ALLOWANCE UNDER THIS SUBSECTION FOR SUBSEQUENT TAXABLE YEARS SHALL BE
BASED UPON SUCH REVISED ESTIMATE.  ..."  REVENUE ACT OF 1936, C. 690,
49 STAT. 1648, 1658-60. 

FROM THE BEGINNING OF INCOME TAXATION, AS NOW, THE REGULATIONS
COVERED THE CONVENTIONAL SITUATIONS OF PAYMENTS FOR ORES AS MINED AND
MADE PROVISION FOR DEPLETION MEASURED BY THE VOLUME ACTUALLY
EXTRACTED.  THE 1918 ACT PERMITTED THE NEW REGULATIONS, REGULATIONS 45,
ARTICLE 215(C), TO PROVIDE FOR THE FIRST TIME A DEDUCTION IN THE YEAR
OF RECEIPT OF ADVANCE ROYALTIES OF A DEPLETION ALLOWANCE CALCULATED ON
THE UNIT VALUE OF THE MINERAL IN PLACE.  THIS MET A FREQUENTLY
RECURRING VARIATION FROM THE NORMAL LEASE.  AS A COROLLARY THE
REGULATIONS REQUIRED THAT IN CASE A LEASE WAS SURRENDERED BEFORE THE
LESSEE HAD EXTRACTED ALL THE ORE FOR WHICH ADVANCE ROYALTIES HAD BEEN
PAID, A SUM EQUAL TO THE DEPLETION ALLOWANCE PREVIOUSLY GRANTED ON SUCH
ORE SHOULD BE TAXED AS INCOME IN THE YEAR OF THE SURRENDER OF THE
LEASE.  THE BONUS OR ADVANCED ROYALTY REGULATIONS HAVE REMAINED
PRACTICALLY UNCHANGED SINCE 1919.  FN2  THE SUBSECTIONS APPLICABLE TO
PREPAID ROYALTIES ARE AS FOLLOWS: 

"ART. 23(M)-10.  DEPLETION - ADJUSTMENTS OF ACCOUNTS BASED ON BONUS
OR ADVANCED ROYALTY 

     .         .         .  .         . 

"(B)  IF THE OWNER HAS LEASED A MINERAL PROPERTY FOR A TERM OF YEARS
WITH A REQUIREMENT IN THE LEASE THAT THE LESSEE SHALL EXTRACT AND PAY
FOR, ANNUALLY, A SPECIFIED NUMBER OF TONS, OR OTHER AGREED UNITS OF
MEASUREMENT, OF SUCH MINERAL, OR SHALL PAY, ANNUALLY, A SPECIFIED SUM
OF MONEY WHICH SHALL BE APPLIED IN PAYMENT OF THE PURCHASE PRICE OR
ROYALTY PER UNIT OF SUCH MINERAL WHENEVER THE SAME SHALL THEREAFTER BE
EXTRACTED AND REMOVED FROM THE LEASED PREMISES, AN AMOUNT EQUAL TO THAT
PART OF THE BASIS FOR DEPLETION ALLOCABLE TO THE NUMBER OF UNITS SO
PAID FOR IN ADVANCE OF EXTRACTION WILL CONSTITUTE AN ALLOWABLE
DEDUCTION FROM THE GROSS INCOME OF THE YEAR IN WHICH SUCH PAYMENT OR
PAYMENTS SHALL BE MADE; BUT NO DEDUCTION FOR DEPLETION BY THE LESSOR
SHALL BE CLAIMED OR ALLOWED IN ANY SUBSEQUENT YEAR ON ACCOUNT OF THE
EXTRACTION OR REMOVAL IN SUCH YEAR OF ANY MINERAL SO PAID FOR IN
ADVANCE AND FOR WHICH DEDUCTION HAS ONCE BEEN MADE. 

"(C)  IF FOR ANY REASON ANY SUCH MINERAL LEASE EXPIRES OR TERMINATES
OR IS ABANDONED BEFORE THE MINERAL WHICH HAS BEEN PAID FOR IN ADVANCE
HAS BEEN EXTRACTED AND REMOVED, THE LESSOR SHALL ADJUST HIS CAPITAL
ACCOUNT BY RESTORING THERETO THE DEPLETION DEDUCTIONS MADE IN PRIOR
YEARS ON ACCOUNT OF ROYALTIES ON MINERAL PAID FOR BUT NOT REMOVED, AND
A CORRESPONDING AMOUNT MUST BE RETURNED AS INCOME FOR THE YEAR IN WHICH
THE LEASE EXPIRES, TERMINATES, OR IS ABANDONED."  TREASURY REGULATIONS
94, PROMULGATED UNDER THE REVENUE ACT OF 1936. 

THE DEFICIENCY HERE ASSESSED FALLS SQUARELY UNDER THE SUBSECTIONS. 
THEIR VALIDITY IS THEREFORE THE DECISIVE ISSUE.  IN OUR OPINION THE
REGULATIONS ARE VALID. 

SINCE THE REVENUE ACTS HAVE NOT FORBIDDEN RECOGNITION OF BONUS OR
ADVANCED ROYALTIES AS A BASIS FOR THE CALCULATION OF APPROPRIATE
DEPLETION, THE PROVISION OF THE REGULATIONS FOR A DEPLETION OFFSET
AGAINST THEIR RECEIPT IS WITHIN THE BROAD RULE-MAKING DELEGATION OF
SEC. 23(M).  ROYALTY OR BONUS PAYMENTS IN ADVANCE OF ACTUAL EXTRACTION
OF MINERALS ARE, LIKE SALES AFTER SEVERANCE OR ROYALTY PAYMENTS ON
ACTUAL PRODUCTION, GROSS INCOME AND NOT A RECOVERY OF CAPITAL. 
STRATTON'S INDEPENDENCE V. HOWBERT, 231 U.S. 399, 418; STANTON V.
BALTIC MINING CO., 240 U.S. 103, 114; BURNET V. HARMEL, 287 U.S. 103;
HERRING V. COMMISSIONER, 293 U.S. 322, 324.  CF. ANDERSON V. HELVERING,
310 U.S. 404, 407-8.  ANY DEDUCTION FROM THIS INCOME FOR DEPLETION, OF
COURSE, MAY BE ALLOWED UPON SUCH TERMS AS CONGRESS MAY DEEM ADVISABLE. 
HELVERING V. BANKLINE OIL CO., 303 U.S. 362, 366; UNITED STATES V.
LUDEY, 274 U.S. 295, 302.  DEPLETION BASED ON COST IS LIKE
DEPRECIATION.  CONGRESS HAS ALLOWED A RECOVERY OF THE CAPITAL INVESTED
IN A MINE BUT, EXCEPT IN DISCOVERY OR PERCENTAGE DEPLETION IN SPECIAL
INSTANCES WHICH ARE NOT HERE INVOLVED, SEE SEC. 114, ALLOWED NOTHING
BEYOND THAT INVESTMENT.  SECS. 23(M) AND (N), 113, 114; 49 STAT. 1648,
1660, 1682-1687.  DEDUCTION IS ALLOWED FOR THE EXHAUSTION OF THE
PROPERTY - THE ORE MASS.  LYNCH V. ALWORTH-STEPHENS CO., 267 U.S. 364,
370.  IT MAY BE IN STEP WITH EXTRACTION, WHERE EXTRACTION AND SALE
SYNCHRONIZE WITH PAYMENTS FOR THE ORE OR THE DEDUCTION MAY BE ALLOWED
AGAINST ADVANCE PAYMENTS OF ROYALTIES OR BONUS.  THE THEORY OF
DEPLETION IS THE SAME IN BOTH CASES.  IN EITHER SITUATION, THE
DEPLETION DEDUCTION IS ALLOWED IN THE ORE EXTRACTED OR EXPECTED TO BE
EXTRACTED.  REGULATIONS 45, ART. 23(M)-2 AND-10(A) AND (B).  THUS THE
MINE OWNER UNDER ARTICLE 23(M)-10 IS COMPENSATED FOR THE USE OF HIS
MINERAL RESERVES IN THE PRODUCTION OF GROSS INCOME. 

BY THE 1919 REGULATIONS, THE PLAN OF RESTORING THE SUM OF DEPLETION
DEDUCTIONS TO CAPITAL AND CARRYING A CORRESPONDING AMOUNT TO INCOME IN
THE YEAR OF THE TERMINATION OF A LEASE WITHOUT PRODUCTION WAS ADOPTED
INSTEAD OF A PERMANENT REDUCTION OF BASIS OR A RESTORATION OF THE
DEPLETION DEDUCTIONS TO INCOME FOR THE YEARS IN WHICH THEY WERE
DEDUCTED.  THE ACT - SEC. 23(M) - DID NOT SPECIFICALLY AUTHORIZE THIS
HANDLING OF UNREALIZED DEPLETION.  BY THE TERMS OF THE SECTION A
REASONABLE ALLOWANCE FOR DEPLETION WAS REQUIRED, "ACCORDING TO THE
PECULIAR CONDITIONS IN EACH CASE."  AS CONGRESS OBVIOUSLY COULD NOT
FORESEE THE MULTIFARIOUS CIRCUMSTANCES WHICH WOULD INVOLVE QUESTIONS OF
DEPLETION, IT DELEGATED TO THE COMMISSIONER THE DUTY OF MAKING THE
REGULATIONS.  ARTICLE 23(M)-10(C) WAS DEVELOPED TO TAKE CARE OF THE
TYPE OF SITUATION WHERE BECAUSE OF A LEASE'S CANCELLATION WITHOUT
EXTRACTION, THE REASON FOR ALLOWING DEPLETION DISAPPEARED.  AS NO
DIMINUTION OCCURRED IN THE ORE MASS, NO DEPLETION WAS APPROPRIATE. 
CONGRESS HAS ENACTED NUMEROUS REVENUE ACTS SINCE THAT TIME AND HAS SEEN
NO OCCASION TO CHANGE THE STATUTORY DELEGATION OF AUTHORITY TO THE
COMMISSIONER OF INTERNAL REVENUE WHICH IS THE BASIS OF THIS LONG
STANDING REGULATION.  THIS EVIDENCES THAT SUBSECTIONS 23(M)-10(B) AND
(C) ARE WITHIN THE RULE-MAKING AUTHORITY WHICH WAS INTENDED TO BE
GRANTED THE COMMISSIONER.  NATIONAL LEAD CO. V. UNITED STATES, 252 U.S.
140, 145-46; MURPHY OIL CO. V. BURNET, 287 U.S. 299, 307. 

AS NO DEPLETION OF THE ORE MASS OCCURRED OR CAN OCCUR UNDER THE LEASE
WHICH PRODUCED THE GROSS INCOME, THE ISSUE IS NOT WHETHER THE
REGULATION GIVES A REASONABLE ALLOWANCE FOR DEPLETION WHEN PREPAID
ROYALTIES ARE INVOLVED.  THAT ISSUE HAS BEEN DECIDED IN FAVOR OF THE
VALIDITY OF SUCH ALLOWANCES IN OTHER CASES.  HERRING V. COMMISSIONER,
293 U.S. 322; MURPHY OIL CO. V. BURNET, 287 U.S. 299.  THE PROBLEM HERE
IS THE VALIDITY OF ARTICLE 23(M)-10(C) WHEN THE DEPLETION FOR WHICH A
DEDUCTION HAS BEEN PREVIOUSLY ALLOWED FAILS IN THE MANNER ANTICIPATED
AS A POSSIBILITY AT THE TIME OF DEDUCTION. 

A. PETITIONERS ATTACK THE VALIDITY OF THE REGULATION ON THE GROUND
THAT THE RESTORATION OF THE ACCUMULATED DEDUCTIONS TO CAPITAL, I.E.,
THE DEPLETION BASIS, WITH A CORRESPONDING INCREASE OF THE TAXPAYERS'
ANNUAL INCOME FOR THE YEAR OF THE RESTORATION, IS CONTRARY TO THE
REQUIREMENTS OF CERTAIN SECTIONS OF THE 1936 ACT.  SECS. 23(M),
114(B)(1) AND 113(B)(1)(B).  IT IS UNNECESSARY TO APPRAISE THE EFFECT
IN OTHER YEARS OF THE ANTECEDENTS OF THESE SECTIONS.  PETITIONERS URGE
THAT THE DEPLETION DEDUCTIONS WHICH WERE THE UNTAXED PORTION OF THE
ROYALTIES PAID IN PRIOR YEARS WERE CAPITAL RECOVERIES IN THOSE PRIOR
YEARS WHICH RESULTED IN A STATUTORY, PERMANENT REDUCTION OF BASIS WHICH
CANNOT BE RESTORED TO BASIS AND HENCE CANNOT BE TREATED AS INCOME FOR
1937.  PETITIONERS POINT TO SEC. 23(M), SUPRA, P. 278, AS PROVIDING FOR
THE DEDUCTION FOR DEPLETION ON PAYMENT OF ADVANCE ROYALTIES.  IT IS
CONTENDED THAT SECS. 114(B)(1) AND 113(B)(1)(B)  FN3 SUPPLEMENT THE
STATUTORY DIRECTION OF 23(M) FOR DEPLETION BY REQUIRING THE PERMANENT
LOWERING OF THE BASIS TO REFLECT THE DEPLETION WHICH SEC. 23 OFFERS. 
FN4  THIS, OF COURSE, IS A CONTENTION THAT DEPLETION FOR ADVANCE
ROYALTIES IS, AS A MATTER OF STATUTE, NOT NECESSARILY AND INEVITABLY
TIED TO EXTRACTION, ACTUAL OR PROSPECTIVE.  SUMMARILY EXPRESSED, IT IS
THAT THE DEPLETION WAS PERMANENT, NOT CONDITIONAL, AND NOT SUBJECT TO
RECOVERY WHEN IT BECAME CLEAR THAT NO MINERALS WERE TO BE EXTRACTED. 
TO ACCEPT THESE ARGUMENTS AS A SOUND INTERPRETATION OF THE MEANING OF
THESE PROVISIONS, HOWEVER, WOULD PUT INTO SEC. 23(M) OF THE ACT OF 1936
A REQUIREMENT FOR DEPLETION AGAINST ADVANCE ROYALTIES WHICH THE WORDS
OF SEC. 114 DO NOT IMPORT.  WE THINK THE GOVERNMENT IS CORRECT IN ITS
ARGUMENT THAT THE ADJUSTMENT OF BASIS AUTHORIZED BY SEC. 113(B)(1)(A)
INCLUDES A RESTORATION OF DEPLETION TO CAPITAL ACCOUNT (BASIS) UNDER
THE WORDS "OR OTHER ITEMS, PROPERLY CHARGEABLE TO CAPITAL ACCOUNT,"
WHEN THE TERMINATION OF THE LEASE WITHOUT EXTRACTION OF ORE FORCES THE
RECONSIDERATION OF DEPLETION.  CONSEQUENTLY, WE HOLD THAT SECS. 23(M),
114(B)(1) AND 113(B)(1)(B) DO NOT AFFECT THE POWER OF THE COMMISSIONER
UNDER SEC. 23(M) TO RESTORE TO THE BASIS THE AMOUNTS PREVIOUSLY
DEDUCTED IN ACCORDANCE WITH ARTICLE 23(M)-10(B) OF REGULATIONS 94.  THE
TAXPAYER WHO RECEIVES ADVANCE ROYALTIES RECEIVES A GROSS INCOME BUT HAS
NO STATUTORY RIGHT TO DEPLETION APART FROM ACTUAL OR PROSPECTIVE
EXTRACTION.  TO GRANT IRRECOVERABLE DEPLETION IN CIRCUMSTANCES WHERE
CANCELLATION OF THE LEASE OCCURS PRIOR TO EXTRACTION WOULD SEVER
DEPLETION FROM EXTRACTION AND, IF NO LATER EXTRACTION FOLLOWED, DEFLECT
INCOME INTO THE CAPITAL ACCOUNT WITHOUT ANY CORRESPONDING CAPITAL
LOSS. 

B. PETITIONERS VIGOROUSLY PRESS ANOTHER ARGUMENT AGAINST THE VALIDITY
OF THE REGULATIONS.  THIS IS THAT THE SEPARATE ANNUAL INSTALMENTS OF
UNTAXED ROYALTIES (PRIOR DEPLETION DEDUCTIONS), SINCE THESE UNTAXED
PORTIONS OF THE ROYALTIES WERE INCOME FOR THE PRIOR YEARS, MAY NOT BE
ACCUMULATED AND TAXED FOR 1937 BECAUSE SUCH TREATMENT IS FICTIONAL,
DISTORTS THE 1937 INCOME TO PETITIONERS' DETRIMENT, IS UNREASONABLE AND
VIOLATES SECS. 23(M), 41 AND 42 OF THE ACT.  THE LATTER TWO SECTIONS
REQUIRE THE COMPUTATION OF INCOME, NET AND GROSS, UPON THE BASIS OF AN
ANNUAL ACCOUNTING PERIOD AND THE INCLUSION OF GROSS INCOME IN THE YEAR
RECEIVED BY THE TAXPAYER.  THE APPLICABILITY OF ALL THREE SECTIONS
DEPENDS UPON WHETHER A SUM EQUAL TO DEPLETION DEDUCTIONS ALLOWED IN
PRIOR YEARS MAY BE TREATED AS INCOME FOR 1937.  PETITIONERS DENY THAT
THIS MAY BE DONE AND RELY FOR THE SOUNDNESS OF THEIR POSITION UPON THE
FAMILIAR PRINCIPLE OF ANNUAL COMPUTATION OF INCOME, "AS THE NET RESULT
OF ALL TRANSACTIONS WITHIN THE YEAR."  BURNET V. SANFORD & BROOKS CO.,
282 U.S. 359, 365. 

IT IS TRUE THAT THE ADVANCED ROYALTIES WERE INCOME TO THE TAXPAYERS
FOR THE RESPECTIVE YEARS IN WHICH THEY WERE RECEIVED.  A CERTAIN
PORTION OF EACH OF SUCH PAYMENTS WAS, HOWEVER, PROPERLY DEDUCTED FROM
THIS INCOME FOR DEPLETION UNDER ARTICLE 23(M)-10(B).  IN ACCORDANCE
WITH OUR POSITION AND CONCLUSION, AS SET OUT IN THE PARAGRAPHS UNDER
THE PRECEDING SECTION A OF THIS OPINION, SUCH DEDUCTIONS WERE NOT
FINALLY CHARGED TO BASIS BUT WERE TENTATIVELY SO CHARGED, SUBJECT TO
THE CONTINGENCY THAT THERE SHOULD OCCUR UNDER THE LEASE AN ACTUAL
EXTRACTION OF MINERAL UNITS WHICH WOULD BE ALLOCABLE TO THE DEDUCTION. 
UNDER SUBSECTION (C) THERE WAS THE FURTHER REQUIREMENT THAT IF THE
CONTINGENCY FAILED, THE SUSPENDED SUMS SHOULD FALL INTO INCOME IN THE
YEAR THAT THE FAILURE WAS MANIFESTED BY THE TERMINATION OF THE LEASE. 
IT SEEMS ENTIRELY PROPER FOR THE COMMISSIONER NOT ONLY TO PROVIDE FOR A
REASONABLE ALLOWANCE FOR DEPLETION WHEN ADVANCE ROYALTIES ARE PAID BUT
ALSO TO PROVIDE FOR THE SITUATION WHEN THE EXPECTED DEPLETION DID NOT
TAKE PLACE.  ANNUAL DEDUCTIONS WERE MADE BY THE TAXPAYER FROM HIS
INCOME.  THESE WERE ALLOWED TO COMPENSATE FOR THE EXHAUSTION OF
CAPITAL.  AN EVENT OCCURRED IN 1937, THE TERMINATION OF THE LEASE,
WHICH RESTORED THE DEDUCTIONS FOR DEPLETION TO INCOME.  THIS
REQUIREMENT IS, WE THINK, WITHIN THE DELEGATION OF AUTHORITY TO THE
COMMISSIONER.  THE POWER DELEGATED TO HIM TO MAKE REGULATIONS FOR
DEPLETION MUST NECESSARILY INCLUDE POWER TO PROVIDE FOR SITUATIONS
WHERE THE ANTICIPATED DEPLETION OF THE MINERAL MASS DOES NOT OCCUR. 

THE MANNER IN WHICH THE COMMISSIONER EXERCISED THAT POWER BY
ATTRIBUTING THE SUMS RESTORED TO BASIS TO THE 1937 INCOME, RATHER THAN
TO THE YEARS 1929 TO 1936, IS NOT INVALID AS AN ARBITRARY PENALTY OR AN
IMPROPER ATTRIBUTION UNDER THE THEORY OF AN ANNUAL PERIOD FOR
DETERMINATION OF INCOME TAXES.  ON THE TERMINATION OF THE LEASE, THE
LESSEE SURRENDERED THE RIGHT TO EXTRACT WITHOUT ROYALTY THE ORE FOR
WHICH ROYALTY HAD BEEN PREPAID.  THIS SURRENDER RETURNED TO THE
TAXPAYER IN 1937 A LEGAL RIGHT.  THEREUPON THE TAXPAYER WAS IN POSITION
TO AGAIN SELL THE RIGHT TO EXTRACT THIS ORE OR TO MINE THAT SELFSAME
ORE ITSELF.  THE RECORD DOES NOT SHOW ANY VALUATION OF THIS RIGHT WHICH
THE LESSEE SURRENDERED.  THE LESSEE PAID FOR THE RIGHT THE AMOUNT
ATTRIBUTED TO THE PETITIONERS' INCOME.  IRRESPECTIVE OF THE ACTUAL
VALUE OF THE RIGHT IN 1937, IT DOES NOT SEEM UNFAIR FOR A GENERAL
REGULATION TO PUT THIS VALUE ON THE RIGHT RESTORED TO THE TAXPAYER IN
THE YEAR OF ITS RESTORATION.  THE DECISIONS UPHOLD THE REGULATION. 
SNEED V. COMMISSIONER, 119 F.2D 767, 770-771; 121 F.2D 725; LAMONT V.
COMMISSIONER, 120 F.2D 996; GRACE M. BARNETT, 39 B.T.A. 864.  FN5 

THE RESTORATION OF THE RIGHT TO PETITIONERS IN 1937 IS ANALOGOUS TO
THE SURRENDER OF A LEASEHOLD, IMPROVED BY THE LESSEE, TO THE LESSOR. 
IN SUCH A CASE, THE VALUE OF THE IMPROVEMENTS IS INCOME TO THE LESSOR
AT THE TIME OF THE SURRENDER.  HELVERING V. BRUUN, 309 U.S. 461.  CF.
MARYLAND CASUALTY CO. V. UNITED STATES, 251 U.S. 342. 

C. THE LAST CONTENTION OF PETITIONERS FOR OUR CONSIDERATION IS THAT
WHERE DEPLETION DEDUCTIONS WERE TAKEN IN YEARS WHEN NO EQUIVALENT TAX
BENEFIT RESULTED, THE AMOUNT OF THE DEDUCTION WHICH RESULTED IN NO TAX
BENEFIT SHOULD NOT BE ATTRIBUTED TO THE YEAR OF THE SURRENDER OF THE
LEASE.  THIS QUESTION ARISES ONLY IN NO. 131.  THE BOARD OF TAX APPEALS
REFUSED TO ALLOW THE ADDITION TO THE 1937 INCOME OF THE TAXPAYER OF
SUMS WHICH REPRESENTED THE AMOUNT OF DEDUCTIONS FOR DEPLETION BEYOND
AMOUNTS OF DEDUCTIONS WHICH OFFSET INCOME.  THE CIRCUIT COURT OF
APPEALS REVERSED. 

UPON THIS LAST POINT, THE DECISION BELOW IN NO. 131 IS AFFIRMED BY AN
EQUALLY DIVIDED COURT.  THE MEMBERS OF THIS COURT WHO JOIN IN THE
DISSENT DO NOT REACH THIS QUESTION BUT THEIR POSITION ON OTHER ISSUES
RESULTS IN THEIR VOTING FOR A REVERSAL OF THE ENTIRE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS.  TWO OTHER MEMBERS OF THIS COURT ARE OF THE
VIEW THAT IN NO. 131 THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
SHOULD BE REVERSED AND THAT THE DECISION OF THE BOARD OF TAX APPEALS
SHOULD BE AFFIRMED. 

IN NOS. 130, 132 AND 133, THE FOREGOING LEADS US TO THE CONCLUSION
THAT THE REGULATIONS ARE VALID AND THE JUDGMENTS OF THE CIRCUIT COURT
OF APPEALS ARE AFFIRMED. 

FN1  BESSIE P. DOUGLAS OWNED A ONE-HALF INTEREST; EACH OF THE OTHER
CO-TENANTS OWNED A ONE-SIXTH INTEREST.  THE EXECUTOR OF THE ESTATE OF
ADELINE R. MORSE DID NOT APPEAL FROM AN ADVERSE DECISION OF THE BOARD
OF TAX APPEALS. 

FN2  IN ADDITION TO REGULATIONS 45, ARTICLE 215, THE PROVISION
APPEARED THEREAFTER IN REGULATIONS 62, ARTICLE 215, ISSUED UNDER SEC.
214(A) OF THE REVENUE ACT OF 1921; REGULATIONS 65 AND 69, ARTICLE 216,
ISSUED UNDER SEC. 214(A) OF THE REVENUE ACTS OF 1924 AND 1926;
REGULATIONS 74, ARTICLE 236, ISSUED UNDER SEC. 23(L) OF THE REVENUE ACT
OF 1928; REGULATIONS 77, ARTICLE 230, ISSUED UNDER SEC. 23(1) OF THE
REVENUE ACT OF 1932; REGULATIONS 86 AND 94, ARTICLE 23(M)-10, ISSUED
UNDER SEC. 23(M) OF THE REVENUE ACTS OF 1934 AND 1936.  THEY HAVE
REMAINED UNCHANGED UNDER THE CODE, REGULATIONS 111, SEC. 29.23(M)-10. 

FN3  "SEC.  114.  BASIS FOR DEPRECIATION AND DEPLETION. 

     .         .   .         .         . 

(B)  BASIS FOR DEPLETION.  - 

(1)  GENERAL RULE.  - THE BASIS UPON WHICH DEPLETION IS TO BE ALLOWED
IN RESPECT OF ANY PROPERTY SHALL BE THE ADJUSTED BASIS PROVIDED IN
OTHER DISPOSITION OF SUCH PROPERTY, EXCEPT AS PROVIDED IN PARAGRAPHS
(2), (3), AND (4) OF THIS SUBSECTION.  ..." 

"SEC. 113.  ADJUSTED BASIS FOR DETERMINING GAIN OR LOSS. 

(B)  ADJUSTED BASIS.  - THE ADJUSTED BASIS FOR DETERMINING THE GAIN
OR LOSS FROM THE SALE OR OTHER DISPOSITION OF PROPERTY, WHENEVER
ACQUIRED, SHALL BE THE BASIS DETERMINED UNDER SUBSECTION (A), ADJUSTED
AS HEREINAFTER PROVIDED. 

(1)  GENERAL RULE.  - PROPER ADJUSTMENT IN RESPECT OF THE PROPERTY
SHALL IN ALL CASES BE MADE - 

(A)  FOR EXPENDITURES, RECEIPTS, LOSSES, OR OTHER ITEMS, PROPERLY
CHARGEABLE TO CAPITAL ACCOUNT, INCLUDING TAXES AND OTHER CARRYING
CHARGES ON UNIMPROVED AND UNPRODUCTIVE REAL PROPERTY, BUT NO SUCH
ADJUSTMENT SHALL BE MADE FOR TAXES OR OTHER CARRYING CHARGES FOR WHICH
DEDUCTIONS HAVE BEEN TAKEN BY THE TAXPAYER IN DETERMINING NET INCOME
FOR THE TAXABLE YEAR OR PRIOR TAXABLE YEARS; 

(B)  IN RESPECT OF ANY PERIOD SINCE FEBRUARY 28, 1913, FOR
EXHAUSTION, WEAR AND TEAR, OBSOLESCENCE, AMORTIZATION, AND DEPLETION,
TO THE EXTENT ALLOWED (BUT NOT LESS THAN THE AMOUNT ALLOWABLE) UNDER
THIS ACT OR PRIOR INCOME TAX LAWS.  ..." 

FN4  THE SECOND SENTENCE OF SEC. 23(M), RELATING TO A CHANGE OF
ESTIMATE AS TO RECOVERABLE MINERAL, IS SAID TO INDICATE A LEGISLATIVE
INTENTION THAT THE BASIS, ONCE REDUCED, IS NOT TO BE RESTORED. 

FN5  PETITIONER CALLS ATTENTION TO KNAPP V. COMMISSIONER, 7 B.T.A.
790, AND COOPER V. COMMISSIONER, 7 B.T.A. 798, ACQUIESCED IN
RESPECTIVELY BY THE COMMISSION, ACQ. VII-1 CUM. BUL.  17 AND 7, JUNE
30, 1928; ACQUIESCENCE WITHDRAWN DECEMBER 31, 1932, XI-2 CUM. BUL.  12,
14.  PETITIONERS' POINT IS THAT WHATEVER MAY BE THE VALIDITY OF THE
REGULATIONS, TAXPAYERS SHOULD NOT HAVE THEIR DEPLETION DEDUCTIONS, FOR
THE YEARS WHEN THE COMMISSIONER'S ACQUIESCENCE WAS IN EFFECT, CARRIED
TO INCOME IN A LATER YEAR.  WE AGREE THAT THESE DECISIONS HELD INVALID
A REGULATION LIKE ART. 23(M)-10(C) WHICH INCLUDES IN INCOME FOR A
TAXABLE YEAR DEDUCTIONS ALLOWED IN PRIOR YEARS.  THE EFFECT OF THE
COMMISSIONER'S ACQUIESCENCE IS UNCERTAIN.  CF. C.B. XIII-2-IV. DURING
THE PERIOD OF ACQUIESCENCE, THE REGULATION CONTINUED IN EXISTENCE AND
WAS REPUBLISHED IN THE EDITION OF DECEMBER 1, 1931, APPROVED FEBRUARY
15, 1929, OF REGULATIONS 74 UNDER THE REVENUE ACT OF 1928, ART.
236(C).  THIS WAS PRIOR TO THE DECISION IN MURPHY OIL CO. V. BURNET,
287 U.S. 299, 304, DECIDED DECEMBER 5, 1932, THOUGHT BY PETITIONER TO
HAVE BROUGHT ABOUT THE WITHDRAWAL OF THE ACQUIESCENCE.  ACQUIESCENCE BY
THE COMMISSIONER IN A TAX COURT RULING FOLLOWED BY ACTION WHICH IS
INCONSISTENT WITH THE WITHDRAWAL OF AN AFFECTED REGULATION IS NOT A
SUFFICIENTLY DEFINITE ADMINISTRATIVE PRACTICE TO JUSTIFY A JUDICIAL
RULING AGAINST THE REGULATION ON THE STRENGTH OF THE ACQUIESCENCE. 
ESTATE OF SANFORD V. COMMISSIONER, 308 U.S. 39, 49; HIGGINS V. SMITH,
308 U.S. 473, 478. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, DISSENTING: 

IN MY OPINION ARTICLE 23(M)-10(C) IS NOT A REASONABLE EXERCISE OF THE
RULE-MAKING AUTHORITY CONFERRED BY SEC. 23.  BY THAT SECTION CONGRESS
PROVIDED:  "IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS
DEDUCTIONS  ...  A REASONABLE ALLOWANCE FOR DEPLETION  ...  ACCORDING
TO THE PECULIAR CONDITIONS IN EACH CASE  ...  UNDER RULES AND
REGULATIONS TO BE PRESCRIBED BY THE COMMISSIONER, WITH THE APPROVAL OF
THE SECRETARY."  REVENUE ACT OF 1936, 49 STAT. 1648.  SINCE ADOPTION OF
THE REVENUE ACT OF 1918 THIS AUTHORITY HAS BEEN EXECUTED IN PART BY
REGULATIONS 45, ARTICLE 215(C) AND ITS SUCCESSORS, WHICH PERMIT THE
DEDUCTION IN YEARS WHEN ADVANCE ROYALTIES ARE RECEIVED.  IT IS NOT
URGED, NOR COULD IT WELL BE, THAT THE DEDUCTION IN SUCH CIRCUMSTANCES
IS NOT ONE COMPREHENDED BY THE STATUTE.  IN MAKING THAT MANDATE
CONGRESS CLEARLY DID NOT INTEND THE PRIVILEGE TO BE GRANTED MERELY ON
TERMS WHICH WOULD DEFEAT ITS OPERATION.  YET THIS, IN MY JUDGMENT, IS
EXACTLY THE EFFECT OF ARTICLE 23(M)-10(C). 

IN REQUIRING THAT "A CORRESPONDING AMOUNT MUST BE RETURNED AS INCOME
FOR THE YEAR IN WHICH THE LEASE EXPIRES, TERMINATES, OR IS ABANDONED,"
THE REGULATION PILES UP AS "INCOME" FOR A SINGLE YEAR THE SUM OF ALL
THE DEDUCTIONS TAKEN IN THE PREVIOUS ONES.  WHOLLY APART FROM WHETHER
IN THEORY OR IN FACT "INCOME" CAN BE SAID TO BE REALIZED BY THUS PILING
UP THE DEDUCTIONS,  FN1  THIS REQUIREMENT IMPOSES RISKS AND BURDENS
UPON TAKING THE DEDUCTION HEAVIER THAN ANY ADVANTAGE TO BE GAINED FROM
IT AND THEREFORE PROHIBITIVE. 

THE CONSEQUENCES HARDLY COULD BE ILLUSTRATED BETTER THAN BY THE CASE
OF BESSIE P. DOUGLAS.  BY TAKING THE DEDUCTION DURING THE EIGHT YEARS
WHEN SHE RECEIVED ADVANCE ROYALTIES, 1929 TO 1936 INCLUSIVE, SHE SAVED
A TOTAL IN TAXES OF ABOUT $7,000.  THEN HER LEASE WAS CANCELED BY THE
LESSEE.  AND IN 1937, A YEAR IN WHICH SHE RECEIVED NO CASH RETURN FROM
THE LEASE, HER TAX LIABILITY WAS INCREASED BY ABOUT $26,500 FOR HAVING
TAKEN THE DEDUCTION IN PREVIOUS YEARS.  SHE WAS THUS FORCED TO PAY
APPROXIMATELY $19,500 MORE IN TAXES THAN IF SHE HAD NEVER TAKEN IT. 

THE REGULATION'S DESTRUCTIVE EFFECT BEARS ON ALL WHO RECEIVE ADVANCE
ROYALTIES, NOT MERELY ON THOSE WHO ACTUALLY MUST RETURN ACCUMULATED
PRIOR DEDUCTIONS AS "INCOME" IN A SINGLE YEAR.  THE TAXPAYER MUST TAKE
THE DEDUCTION, IF AT ALL, AS HIS ROYALTIES ACCRUE, NOT LATER AS THE ORE
IS REMOVED.  THE SYSTEM OF ANNUAL ACCOUNTING IS SAID TO REQUIRE THIS. 
CF. BURNET V. THOMPSON OIL & GAS CO., 283 U.S. 301, 306; BURNET V.
SANFORD & BROOKS CO., 282 U.S. 359.  YET IT IS SAID ALSO TO REQUIRE
THAT THE DEDUCTIONS BE TELESCOPED INTO "INCOME" FOR A SINGLE YEAR IN
WHICH THE RETURNS THEY REPRESENT ARE NOT RECEIVED, AND WITH AN EFFECT
IN TAX BURDEN, BY THE MERE FACT OF THE AGGREGATION, FAR BEYOND ANY
WHICH WOULD BE IMPOSED IF THE DEDUCTIONS NEVER HAD BEEN AUTHORIZED OR
TAKEN.  HENCE ALL WHO RECEIVE ADVANCE ROYALTIES ARE FACED WITH THE
CHOICE OF TAKING THE DEDUCTIONS AND THUS RISKING THIS PYRAMIDING OF
"INCOME," AGAINST THE CHANCE THE LESSEE WILL SOME DAY DEPLETE THE
PROPERTY, OR OF FOREGOING THE DEDUCTIONS ALTOGETHER.    IT IS TRUE THE
TAXPAYER MAY RECEIVE AN ECONOMIC BENEFIT IN THE RELEASE OF HIS ORE FROM
THE RIGHT OF ANOTHER TO REMOVE IT.  AND BY THE REGULATION'S REQUIREMENT
THAT HE RESTORE TO HIS CAPITAL ACCOUNT AN AMOUNT EQUAL TO THE SUM OF
THE ACCUMULATED DEDUCTIONS, HE ALSO RECEIVES A POSSIBLE FUTURE TAX
BENEFIT IN LARGER DEDUCTIONS ALLOWABLE IF AND WHEN HE SELLS OR LEASES
THE MINERALS AGAIN.  BUT THESE BENEFITS ARE WHOLLY UNCERTAIN.  IN FACT,
RELEASE OF HIS ORE FROM THE RIGHT OF REMOVAL GIVES HIM NOT INCOME THEN
REALIZED IN CASH TO THE AMOUNT OF ACCUMULATED DEDUCTIONS, BUT UNSOLD
ORE IN THE GROUND WHICH THE LESSEE HAS FOUND IT UNPROFITABLE TO REMOVE
ALTHOUGH HE HAS PAID FOR IT.  THE ONLY CONTINGENCY ON WHICH THE
TAXPAYER REALLY BENEFITS BY THE DEDUCTIONS IS IN THE EVENT THE LESSEE
ULTIMATELY DOES DEPLETE THE PROPERTY.  BUT IT IS DIFFICULT TO BELIEVE
CONGRESS DELIBERATELY EXTENDED THE OPPORTUNITY FOR DEDUCTION TO LESSORS
WHOSE PROPERTY IS NOT IN FACT DEPLETED BY THE LESSEE'S OPERATIONS  FN2
ONLY TO AUTHORIZE THE COMMISSIONER TO NULLIFY AND PENALIZE THAT
OPPORTUNITY.  THIS THE REGULATION DOES, IN EFFECT, WHEN IT IMPOSES ON
ONE WHO TAKES THE DEDUCTION THE RISK, ON A CONTINGENCY BEYOND HIS
CONTROL, OF HAVING TO PAY IN TAXES SEVERAL TIMES THE AMOUNT OF THE
DEDUCTIONS ON THE HAPPENING OF THE CONTINGENCY. 

NOR IS THE REGULATION REASONABLY ADAPTED TO RECOUPMENT OF THE LOSSES
IN REVENUE, WHOLLY PROPER WHEN INCURRED BUT WHICH LATER EVENTS REQUIRE
TO BE MADE UP.  ON THE CONTRARY, IT PERVERTS RECOUPMENT BY PYRAMIDING
INCOME SPREAD IN RECEIPT OVER MANY YEARS INTO "INCOME" RECEIVED IN A
SINGLE, ENTIRELY DIFFERENT ONE.  AND IN A DAY WHEN THE TAX RATE MOUNTS
MORE OFTEN THAN YEARLY THE SKYROCKETING EFFECT OF THE PROCESS OPERATES
WITH WHOLLY INCALCULABLE EFFECT ON THE TAXPAYER, WHO IT WILL BE NOTED
HAS NO CONTROL OVER THE CONTINGENCY WHICH BRINGS IT INTO PLAY. 

A REGULATION WHICH WOULD REQUIRE THE TAXPAYER TO PAY THE TAXES
DEDUCTED FOR THE PRIOR YEARS TOGETHER WITH THE USUAL INTEREST AND
PENALTIES WOULD BE HARSH ENOUGH IN DISCOURAGEMENT OF TAKING THE
DEDUCTION.  IN EFFECT IT WOULD PENALIZE ONE WHO RIGHTFULLY TAKES AN
ALLOWANCE AS MUCH AS ONE WHO WRONGFULLY DOES SO.  BUT, EVEN SO, THIS
WOULD BEAR SOME SEMBLANCE OF REASONABLE RELATION TO RECOUPING THE
LOSSES SUSTAINED BY THE REVENUE AND TO ALLOCATING INCOME TO THE YEAR IN
WHICH IT IS RECEIVED.  HOWEVER, TO AMALGAMATE THE DEDUCTIONS INTO
"INCOME" FOR A SINGLE YEAR, IN WHICH NONE OF IT IS ACTUALLY RECEIVED,
IS AN ENTIRELY DIFFERENT THING.  IT IS TO MAKE OF THE SO-CALLED SCHEME
OF DEDUCTIONS A SNARE FOR THE UNWARY WHO VIOLATE NO LAW BUT COMPLY WITH
IT FULLY; AND AT THE SAME TIME TO STRAIN THE THEORY OF ANNUAL
ACCOUNTING BEYOND ANY REASONABLE APPLICATION. 

THE REGULATION, THEREFORE, BOTH EFFECTIVELY NULLIFIES A PRIVILEGE
WHICH CONGRESS PROVIDED THE TAXPAYER SHALL HAVE AND REACHES FARTHER
THAN ANY REASONABLE RECOUPING PROVISION SHOULD GO.  IT IS NO ANSWER TO
SAY DEDUCTION IS A PRIVILEGE WHICH CONGRESS NEED NOT HAVE EXTENDED, OR
HAVING EXTENDED CAN QUALIFY OUT OF EXISTENCE.  THE QUESTION IS WHETHER
CONGRESS DID, OR AUTHORIZED THE COMMISSIONER TO DO, THE LATTER.  ITS
LANGUAGE, ITS PRIOR TREATMENT OF THE PROBLEM  FN3  AND ITS TREATMENT OF
A RELATED PROBLEM IN THE IDENTICAL SECTION OF THE REVENUE ACT ALL POINT
TO THE CONCLUSION IT DID NEITHER. 

OTHER QUESTIONS ARE RAISED ON THE RECORD.  IT IS UNNECESSARY TO
CONSIDER THEM.  IN MY OPINION CONGRESS WOULD NOT HAVE NULLIFIED ITS
GRANT OF THE PRIVILEGE TO TAKE "A REASONABLE ABLE ALLOWANCE FOR
DEPLETION" BY ENACTING ARTICLE 23(M)-10(C) TO MAKE EXERCISING IT SO
HAZARDOUS, CAPRICIOUS, AND UNJUST IN CONSEQUENCE.  FN4  THAT BEING
TRUE, I DO NOT THINK AUTHORITY WAS DELEGATED TO THE COMMISSIONER TO
ADOPT OR TO THE SECRETARY TO APPROVE IT.  I WOULD REVERSE THE
JUDGMENT. 

FN1  COMPARE, E.G., 26 U.S.C. SECS. 11-23, AND SEE ALSO 4 MERTENS,
LAW OF FEDERAL INCOME TAXATION (1942) SEC. 24.64. 

FN2  COMPARE REV. ACT OF 1913 SEC. IIG)(B); REV. ACT OF 1916 SEC.
5(A)(EIGHTH)(B) WITH REV. ACT OF 1918 SEC. 234(A)(9); REV. ACT OF 196
SEC. 23(M). 

FN3  CF. NOTE 2 SUPRA. 

FN4  THE UNCERTAIN CAREER OF ARTICLE 23(M)-10(C), ADVERTED TO IN THE
COURT'S OPINION, OFFERS NO SUPPORT FOR CONGRESSIONAL ACQUIESCENCE IN
THE COMMISSIONER'S POSITION BEFORE 1932 AND ONLY DOUBTFULLY SUGGESTS IT
AFTER THAT DATE.  IN THIS CASE THE NULLIFYING EFFECT OF THE LIMITATION
UPON THE PRIVILEGE GRANTED PREVENTS REMOVAL OF THAT DOUBT. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 
..END :





















NORTHWEST AIRLINES V. MINNESOTA, 322 U.S. 292 


NO. 33.  ARGUED OCTOBER 19, 20, 1944.  - DECIDED MAY 15, 1944.  - 213
MINN. 395, 7 N.W.2D 691, AFFIRMED. 


A CORPORATION WHICH WAS INCORPORATED UNDER THE LAWS OF MINNESOTA, AND
WHICH HAD ITS PRINCIPAL PLACE OF BUSINESS IN THAT STATE, OWNED AND
OPERATED IN INTERSTATE COMMERCE A FLEET OF AIRPLANES; FOR ALL OF THE
PLANES, A CITY WITHIN THE STATE WAS THE HOME PORT REGISTERED WITH THE
CIVIL AERONAUTICS AUTHORITY AND THE OVERHAUL BASE; AND NONE OF THE
PLANES WAS CONTINUOUSLY WITHOUT THE STATE DURING THE WHOLE TAX YEAR. 
HELD THAT A GENERAL MINNESOTA PERSONAL PROPERTY TAX APPLIED TO ALL
PERSONAL PROPERTY WITHIN THE STATE AND WITHOUT DISCRIMINATION APPLIED
ON THE CORPORATION'S ENTIRE FLEET OF AIRPLANES DID NOT VIOLATE THE
COMMERCE CLAUSE, NOR THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, OF THE FEDERAL CONSTITUTION.  PP. 293, 300. 

NORTHWEST AIRLINES, INC. V. MINNESOTA. 

CERTIORARI TO THE SUPREME COURT OF MINNESOTA. 

CERTIORARI, 319 U.S. 734, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE STATE IN A SUIT AGAINST THE COMPANY TO RECOVER DELINQUENT PERSONAL
PROPERTY TAXES. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE CONCLUSION AND JUDGMENT OF THE
COURT. 

THE QUESTION BEFORE US IS WHETHER THE COMMERCE CLAUSE OR THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BARS THE STATE OF MINNESOTA
FROM ENFORCING THE PERSONAL PROPERTY TAX IT HAS LAID ON THE ENTIRE
FLEET OF AIRPLANES OWNED BY THE PETITIONER AND OPERATED BY IT IN
INTERSTATE TRANSPORTATION.  THE ANSWER INVOLVES THE APPLICATION OF
SETTLED LEGAL PRINCIPLES TO THE PRECISE CIRCUMSTANCES OF THIS CASE.  TO
THESE, ABOUT WHICH THERE IS NO DISPUTE, WE TURN. 

NORTHWEST AIRLINES IS A MINNESOTA CORPORATION AND ITS PRINCIPAL PLACE
OF BUSINESS IS ST. PAUL.  IT IS A COMMERCIAL AIRLINE CARRYING PERSONS,
PROPERTY AND MAIL ON REGULAR FIXED ROUTES, WITH DUE ALLOWANCE FOR
WEATHER, PREDOMINANTLY WITHIN THE TERRITORY COMPRISING ILLINOIS,
MINNESOTA, NORTH DAKOTA, MONTANA, OREGON, WISCONSIN AND WASHINGTON. 
FOR ALL THE PLANES ST. PAUL IS THE HOME PORT REGISTERED WITH THE CIVIL
AERONAUTICS AUTHORITY, UNDER WHOSE CERTIFICATE OF CONVENIENCE AND
NECESSITY NORTHWEST OPERATES.  AT SIX OF ITS SCHEDULED CITIES,
NORTHWEST OPERATES MAINTENANCE BASES, BUT THE WORK OF REBUILDING AND
OVERHAULING THE PLANES IS DONE IN ST. PAUL.  DETAILS AS TO STOPOVERS,
OTHER RUNS, THE LOCATION OF FLYING CREW BASES AND OF THE USUAL
FACILITIES FOR AIRCRAFT, HAVE NO BEARING ON OUR PROBLEM. 

THE TAX IN CONTROVERSY IS FOR THE YEAR 1939.  ALL OF NORTHWEST'S
PLANES WERE IN MINNESOTA FROM TIME TO TIME DURING THAT YEAR.  ALL WERE,
HOWEVER, CONTINUOUSLY ENGAGED IN FLYING FROM STATE TO STATE, EXCEPT
WHEN LAID UP FOR REPAIRS AND OVERHAULING FOR UNIDENTIFIED PERIODS.  ON
MAY 1, 1939, THE TIME FIXED BY MINNESOTA FOR ASSESSING PERSONAL
PROPERTY SUBJECT TO ITS TAX (MINN. STAT. 1941, SEC. 273.01),
NORTHWEST'S SCHEDULED ROUTE MILEAGE IN MINNESOTA WAS 14% OF ITS TOTAL
SCHEDULED ROUTE MILEAGE, AND THE SCHEDULED PLANE MILEAGE WAS 16% OF
THAT SCHEDULED.  IT BASED ITS PERSONAL PROPERTY TAX RETURN FOR 1939 ON
THE NUMBER OF PLANES IN MINNESOTA ON MAY 1, 1939.  THEREUPON THE
APPROPRIATE TAXING AUTHORITY OF MINNESOTA ASSESSED A TAX AGAINST
NORTHWEST ON THE BASIS OF THE ENTIRE FLEET COMING INTO MINNESOTA.  FOR
THAT ADDITIONAL ASSESSMENT THIS SUIT WAS BROUGHT.  THE SUPREME COURT OF
MINNESOTA, WITH THREE JUDGES DISSENTING, AFFIRMED THE JUDGMENT OF A
LOWER COURT IN FAVOR OF THE STATE.  213 MINN. 395, 7 N.W.2D 691.  A NEW
PHASE OF AN OLD PROBLEM LED US TO BRING THE CASE HERE.  319 U.S. 734. 

THE TAX HERE ASSESSED BY MINNESOTA IS A TAX ASSESSED UPON "ALL
PERSONAL PROPERTY OF PERSONS RESIDING THEREIN, INCLUDING THE PROPERTY
OF CORPORATIONS  ...  "  MINN. STAT. 1941, SEC. 272.01.  IT IS NOT A
CHARGE LAID FOR ENGAGING IN INTERSTATE COMMERCE OR UPON AIRLINES
SPECIFICALLY; IT IS NOT AIMED BY INDIRECTION AGAINST INTERSTATE
COMMERCE OR MEASURED BY SUCH COMMERCE.  NOR IS THE TAX ASSESSED AGAINST
PLANES WHICH WERE "CONTINUOUSLY WITHOUT THE STATE DURING THE WHOLE TAX
YEAR," N.Y. CENTRAL & H.R.R. CO. V. MILLER, 202 U.S. 584, 594, AND HAD
THEREBY ACQUIRED "A PERMANENT LOCATION ELSEWHERE," SOUTHERN PACIFIC CO.
V. KENTUCKY, 222 U.S. 63, 68; AND SEE CREAM OF WHEAT CO. V. GRAND
FORKS, 253 U.S. 325, 328-330. 

MINNESOTA IS HERE TAXING A CORPORATION FOR ALL ITS PROPERTY WITHIN
THE STATE DURING THE TAX YEAR NO PART OF WHICH RECEIVES PERMANENT
PROTECTION FROM ANY OTHER STATE.  THE 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 AND THAT ST.
PAUL IS THE "HOME PORT" OF ALL ITS PLANES.  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.  SEE STATE TAX COMM'N V. ALDRICH, 316 U.S. 174, 180.  NO
OTHER STATE CAN CLAIM TO TAX AS THE STATE OF THE LEGAL DOMICILE AS WELL
AS THE HOME STATE OF THE FLEET, AS A BUSINESS FACT.  NO OTHER STATE IS
THE STATE WHICH GAVE NORTHWEST THE POWER TO BE AS WELL AS THE POWER TO
FUNCTION AS NORTHWEST FUNCTIONS IN MINNESOTA; NO OTHER STATE COULD
IMPOSE A TAX THAT DERIVES FROM THE SIGNIFICANT LEGAL RELATION OF
CREATOR AND CREATURE AND THE PRACTICAL CONSEQUENCES OF THAT RELATION IN
THIS CASE.  ON THE BASIS OF RIGHTS WHICH MINNESOTA ALONE ORIGINATED AND
MINNESOTA CONTINUES TO SAFEGUARD, SHE ALONE CAN TAX THE PERSONALTY
WHICH IS PERMANENTLY ATTRIBUTABLE TO MINNESOTA AND TO NO OTHER STATE. 
IT IS TOO LATE TO SUGGEST THAT THIS TAXING POWER OF A STATE IS LESS
BECAUSE THE TAX MAY BE REFLECTED IN THE COST OF TRANSPORTATION.  SEE
DELAWARE RAILROAD TAX, 18 WALL.  206, 232. 

SUCH BEING THE CASE, IT IS CLEARLY RULED BY N.Y. CENTRAL & H.R.R. CO.
V. MILLER, SUPRA.  HERE, AS IN THAT CASE, A CORPORATION IS TAXED FOR
ALL ITS PROPERTY WITHIN THE STATE DURING THE TAX YEAR NONE OF WHICH WAS
"CONTINUOUSLY WITHOUT THE STATE DURING THE WHOLE TAX YEAR."  THEREFORE
THE DOCTRINE OF UNION TRANSIT CO. V. KENTUCKY, 199 U.S. 194, DOES NOT
COME INTO PLAY.  THE FACT THAT NORTHWEST PAID PERSONAL PROPERTY TAXES
FOR THE YEAR 1939 UPON "SOME PROPORTION OF ITS FULL VALUE" OF ITS
AIRPLANE FLEET IN SOME OTHER STATES DOES NOT ABRIDGE THE POWER OF
TAXATION OF MINNESOTA AS THE HOME STATE OF THE FLEET IN THE
CIRCUMSTANCES OF THE PRESENT CASE.  THE TAXABILITY OF ANY PART OF THIS
FLEET BY ANY OTHER STATE THAN MINNESOTA, IN VIEW OF THE TAXABILITY OF
THE ENTIRE FLEET BY THAT STATE, IS NOT NOW BEFORE US.  IT WAS NOT SHOWN
IN THE MILLER CASE AND IT IS NOT SHOWN HERE THAT A DEFINED PART OF THE
DOMICILIARY CORPUS HAS ACQUIRED A PERMANENT LOCATION, I.E., A TAXING
SITUS, ELSEWHERE.  FN1  THAT WAS THE DECISIVE FEATURE OF THE MILLER
CASE, AND IT WAS DEEMED DECISIVE AS LATE AS 1933 IN JOHNSON OIL CO. V.
OKLAHOMA, 290 U.S. 158, WHICH WAS STRONGLY PRESSED UPON US BY
NORTHWEST.  IN THAT CASE IT WAS NOT THE HOME STATE, ILLINOIS, BUT A
FOREIGN STATE, OKLAHOMA, WHICH WAS SEEKING TO TAX A WHOLE FLEET OF TANK
CARS USED BY THE OIL COMPANY.  THAT CASE FELL OUTSIDE OF THE DECISION
OF THE MILLER CASE AND OURS FALLS PRECISELY WITHIN IT.  "APPELLANT HAD
ITS DOMICILE IN ILLINOIS," AS MR. CHIEF JUSTICE HUGHES POINTED OUT,
"AND THAT STATE HAD JURISDICTION TO TAX APPELLANT'S PERSONAL PROPERTY
WHICH HAD NOT ACQUIRED AN ACTUAL SITUS ELSEWHERE."  290 U.S. AT 161. 
FN2  THIS CONSTITUTIONAL BASIS FOR WHAT MINNESOTA DID REFLECTS
PRACTICALITIES IN THE RELATIONS BETWEEN THE STATES AND AIR
TRANSPORTATION.  "IT HAS BEEN CUSTOMARY TO TAX OPERATING AIRPLANES AT
THEIR OVERHAUL BASE."  THOMPSON, STATE AND LOCAL TAXATION AFFECTING AIR
TRANSPORTATION (1933) 4 J. AIR L. 479, 483. 

THE DOCTRINE OF TAX APPORTIONMENT FOR INSTRUMENTALITIES ENGAGED IN
INTERSTATE COMMERCE INTRODUCED BY PULLMAN'S CAR CO. V. PENNSYLVANIA,
141 U.S. 18, IS HERE INAPPLICABLE.  THE PRINCIPLE OF THAT CASE IS THAT
A NON-DOMICILIARY STATE MAY TAX AN INTERSTATE CARRIER "ENGAGED IN
RUNNING RAILROAD CARS INTO, THROUGH AND OUT OF THE STATE, AND HAVING AT
ALL TIMES A LARGE NUMBER OF CARS WITHIN THE STATE  ...  BY TAKING AS
THE BASIS OF ASSESSMENT SUCH PROPORTION OF ITS CAPITAL STOCK AS THE
NUMBER OF MILES OF RAILROAD OVER WHICH ITS CARS ARE RUN WITHIN THE
STATE BEARS TO THE WHOLE NUMBER OF MILES IN ALL THE STATES OVER WHICH
ITS CARS ARE RUN."  UNION TRANSIT CO. V. KENTUCKY, SUPRA, AT 206.  THIS
PRINCIPLE WAS SUCCESSIVELY EXTENDED TO THE OLD MEANS OF TRANSPORTATION
AND COMMUNICATION, SUCH AS EXPRESS COMPANIES AND TELEGRAPH SYSTEMS. 
BUT THE DOCTRINE OF APPORTIONMENT HAS NEITHER IN THEORY NOR IN PRACTICE
BEEN APPLIED TO TAX UNITS OF INTERSTATE COMMERCE VISITING FOR
FRACTIONAL PERIODS OF THE TAXING YEAR.  (THUS, FOR INSTANCE, "THE
COACHES OF THE COMPANY  ... ARE DAILY PASSING FROM ONE END OF THE STATE
TO THE OTHER," IN PULLMAN'S CAR CO. V. PENNSYLVANIA, SUPRA, AT 20,
CITING THE OPINION OF THE COURT BELOW IN 107 PA. 156, 160.)  THE
CONTINUOUS PROTECTION BY A STATE OTHER THAN THE DOMICILIARY STATE -
THAT IS, PROTECTION THROUGHOUT THE TAX YEAR - HAS FURNISHED THE
CONSTITUTIONAL BASIS FOR TAX APPORTIONMENT IN THESE INTERSTATE COMMERCE
SITUATIONS, AND IT IS ON THAT BASIS THAT THE TAX LAWS HAVE BEEN FRAMED
AND ADMINISTERED. 

THE TAXING POWER OF THE DOMICILIARY STATE HAS A VERY DIFFERENT
BASIS.  IT HAS POWER TO TAX BECAUSE IT IS THE STATE OF DOMICILE AND NO
OTHER STATE IS. FOR REASONS WITHIN ITS OWN SPHERE OF CHOICE CONGRESS AT
ONE TIME CHARTERED INTERSTATE CARRIERS AND AT OTHER TIMES HAS LEFT THE
CHARTERING AND ALL THAT GOES WITH IT TO THE STATES.  THAT IS A
PRACTICAL FACT OF LEGISLATIVE CHOICE AND A PRACTICAL FACT FROM WHICH
LEGAL SIGNIFICANCE HAS ALWAYS FOLLOWED.  THAT FAR-REACHING FACT WAS
RECOGNIZED, AS A MATTER OF COURSE, BY MR. JUSTICE BRADLEY IN HIS
DISSENT IN THE PULLMAN'S CAR CO. CASE, SUPRA, AT 32.  CONGRESS OF
COURSE COULD EXERT ITS CONTROLLING AUTHORITY OVER COMMERCE BY
APPROPRIATE REGULATION AND EXCLUDE A DOMICILIARY STATE FROM AUTHORITY
WHICH IT OTHERWISE WOULD HAVE BECAUSE IT IS THE DOMICILIARY STATE.  BUT
NO JUDICIAL RESTRICTION HAS BEEN APPLIED AGAINST THE DOMICILIARY STATE
EXCEPT WHEN PROPERTY (OR A PORTION OF FUNGIBLE UNITS) IS PERMANENTLY
SITUATED IN A STATE OTHER THAN THE DOMICILIARY STATE.  FN3  AND
PERMANENTLY MEANS CONTINUOUSLY THROUGHOUT THE YEAR, NOT A FRACTION
THEREOF, WHETHER DAYS OR WEEKS. 

SUCH WAS THE UNANIMOUS DECISION IN THE MILLER CASE OR THE MILLER CASE
DECIDED NOTHING.  THE PRESENT CASE IS PRECISELY THE CASE WHICH MR.
JUSTICE HOLMES ASSUMED THE MILLER CASE TO BE.  BY SUBSTITUTING
MINNESOTA FOR NEW YORK WE HAVE INESCAPABLY THE FACTS OF THE PRESENT
CASE:  "SUPPOSE, THEN, THAT THE STATE OF MINNESOTA HAD TAXED THE
PROPERTY DIRECTLY, THERE WAS NOTHING TO HINDER ITS TAXING THE WHOLE OF
IT.  IT IS TRUE THAT IT HAS BEEN DECIDED THAT PROPERTY, EVEN OF A
DOMESTIC CORPORATION, CANNOT BE TAXED IF IT IS PERMANENTLY OUT OF THE
STATE.  ...  BUT IT HAS NOT BEEN DECIDED, AND IT COULD NOT BE DECIDED,
THAT A STATE MAY NOT TAX ITS OWN CORPORATIONS FOR ALL THEIR PROPERTY
WITHIN THE STATE DURING THE TAX YEAR, EVEN IF EVERY ITEM OF THAT
PROPERTY SHOULD BE TAKEN SUCCESSIVELY INTO ANOTHER STATE FOR A DAY, A
WEEK, OR SIX MONTHS, AND THEN BROUGHT BACK.  USING THE LANGUAGE OF
DOMICIL, WHICH NOW SO FREQUENTLY IS APPLIED TO INANIMATE THINGS, THE
STATE OF ORIGIN REMAINS THE PERMANENT SITUS OF THE PROPERTY,
NOTWITHSTANDING ITS OCCASIONAL EXCURSIONS TO FOREIGN PARTS."  N.Y.
CENTRAL & H.R.R. CO. V. MILLER, SUPRA, AT 596-597.  FN4  SURELY, THE
POWER OF THE STATE OF ORIGIN TO "TAX ITS OWN CORPORATIONS FOR ALL THEIR
PROPERTY WITHIN THE STATE DURING THE TAX YEAR" CANNOT CONSTITUTIONALLY
BE AFFECTED WHETHER THE PROPERTY TAKES FIXED TRIPS OR INDETERMINATE
TRIPS SO LONG AS THE PROPERTY IS NOT "CONTINUOUSLY WITHOUT THE STATE
DURING THE WHOLE TAX YEAR," N.Y. CENTRAL & H.R.R. CO. V. MILLER, SUPRA,
AT 594, EVEN WHEN, AS IN THE MILLER CASE, FROM 12% TO 64% OF THE
PROPERTY WAS SHOWN TO HAVE BEEN USED OUTSIDE OF NEW YORK DURING THE TAX
YEAR, BUT IN NO ONE VISITED STATE PERMANENTLY, THAT IS, FOR THE WHOLE
YEAR.  AND THAT IS THE DECISIVE CONSTITUTIONAL FACT ABOUT THE MILLER
CASE - THAT ALTHOUGH FROM 12% TO 64% OF THE ROLLING STOCK OF THE
RAILROAD WAS OUTSIDE OF NEW YORK THROUGHOUT THE TAX YEAR, NEW YORK WAS
NEVERTHELESS ALLOWED TO TAX IT ALL BECAUSE NO PART WAS IN ANY OTHER
STATE THROUGHOUT THE YEAR. 

TO INTRODUCE A NEW DOCTRINE OF TAX APPORTIONMENT AS A LIMITATION UPON
THE HITHERTO ESTABLISHED TAXING POWER OF THE HOME STATE IS NOT MERELY
TO INDULGE IN CONSTITUTIONAL INNOVATION.  IT IS TO INTRODUCE PRACTICAL
DISLOCATION INTO THE ESTABLISHED TAXING SYSTEMS OF THE STATES.  THE
DOCTRINE OF TAX APPORTIONMENT HAS BEEN PAINFULLY EVOLVED IN WORKING OUT
THE FINANCIAL RELATIONS BETWEEN THE STATES AND INTERSTATE
TRANSPORTATION AND COMMUNICATION CONDUCTED ON LAND AND THEREBY FORMING
A PART OF THE ORGANIC LIFE OF THESE STATES.  ALTHOUGH A PART OF THE
TAXING SYSTEMS OF THIS COUNTRY, THE RULE OF APPORTIONMENT IS BESET WITH
FRICTION, WASTE AND DIFFICULTIES, BUT AT ALL EVENTS IT GREW OUT OF, AND
HAS ESTABLISHED ITSELF IN REGARD TO, LAND COMMERCE.  FN5  TO WHAT
EXTENT IT SHOULD BE CARRIED OVER TO THE TOTALLY NEW PROBLEMS PRESENTED
BY THE VERY DIFFERENT MODES OF TRANSPORTATION AND COMMUNICATION THAT
THE AIRPLANE AND THE RADIO HAVE ALREADY INTRODUCED, LET ALONE THE STILL
MORE SUBTLE AND COMPLICATED TECHNOLOGICAL FACILITIES THAT ARE ON THE
HORIZON, RAISES QUESTIONS THAT WE OUGHT NOT TO ANTICIPATE; CERTAINLY WE
OUGHT NOT TO EMBARRASS THE FUTURE BY JUDICIAL ANSWERS WHICH AT BEST CAN
DEAL ONLY IN A TRUNCATED WAY WITH PROBLEMS SUFFICIENTLY DIFFICULT EVEN
FOR LEGISLATIVE STATESMANSHIP. 

THE DOCTRINE IN THE MILLER CASE, WHICH WE HERE APPLY, DOES NOT
SUBJECT PROPERTY PERMANENTLY LOCATED OUTSIDE OF THE DOMICILIARY STATE
TO DOUBLE TAXATION.  BUT NOT TO SUBJECT PROPERTY THAT HAS NO LOCALITY
OTHER THAN THE STATE OF ITS OWNER'S DOMICILE TO TAXATION THERE WOULD
FREE SUCH FLOATING PROPERTY FROM TAXATION EVERYWHERE.  AND WHAT THE
MILLER CASE DECIDED IS THAT NEITHER THE COMMERCE CLAUSE NOR THE
FOURTEENTH AMENDMENT AFFORDS SUCH CONSTITUTIONAL IMMUNITY.    EACH NEW
MEANS OF INTERSTATE TRANSPORTATION AND COMMUNICATION HAS ENGENDERED
CONTROVERSY REGARDING THE TAXING POWERS OF THE STATES INTER SE AND AS
BETWEEN THE STATES AND THE FEDERAL GOVERNMENT.  SUCH CONTROVERSIES AND
SOME CONFLICT AND CONFUSION ARE INEVITABLE UNDER A FEDERAL SYSTEM. 
THEY HAVE LONG BEEN THE SOURCE OF DIFFICULTY AND DISSATISFACTION FOR
US, SEE J. B. MOORE, TAXATION OF MOVABLES AND THE FOURTEENTH AMENDMENT
(1907) 7 COL. L. REV. 309; GROVES, INTERGOVERNMENTAL FISCAL RELATIONS,
PROCEEDINGS THIRTY-FIFTH ANNUAL CONFERENCE, NATIONAL TAX ASSOCIATION,
P. 105, AND HAVE EQUALLY PLAGUED THE BRITISH FEDERAL SYSTEMS, SEE
REPORT OF THE (AUSTRALIAN) ROYAL COMMISSION ON THE CONSTITUTION, (1929)
C. XII (P. 127), C. XIX (P. 187), C. XXIII (AT P. 259); REPORT OF THE
(CANADIAN) ROYAL COMMISSION ON DOMINION-PROVINCIAL RELATIONS, (1940)
BK. I, C. VIII, BK. II, SEC. B, C. III.  IN RESPONSE TO ARGUMENTS
ADDRESSED ALSO TO US ABOUT THE DANGERS OF HARASSING STATE TAXATION
AFFECTING NATIONAL TRANSPORTATION, THE CONCURRING JUDGE BELOW ADVERTS
TO THE POWER OF CONGRESS TO INCORPORATE AIRLINES AND TO CONTROL THEIR
TAXATION.  BUT INSOFAR AS THESE ARE MATTERS THAT GO BEYOND THE
CONSTITUTIONAL ISSUES WHICH DISPOSE OF THIS CASE, THEY ARE NOT OUR
CONCERN.  AFFIRMED. 

FN1  IN THE MILLER CASE, THE NEW YORK CENTRAL RAILROAD INTRODUCED
EVIDENCE THAT DURING THE TAXABLE YEARS IN QUESTION, A PROPORTION OF ITS
CARS, RANGING FROM ABOUT 12% TO 64%, WAS USED OUTSIDE OF NEW YORK. 
THIS FIGURE WAS ARRIVED AT BY USING THE RATIO BETWEEN CENTRAL'S MILEAGE
OUTSIDE OF NEW YORK AND ITS TOTAL MILEAGE.  THE COMPTROLLER
NEVERTHELESS RULED THAT ALL OF CENTRAL'S CARS WERE TAXABLE IN NEW YORK,
THE STATE OF DOMICILE.  ON REVIEW OF THIS RULING AS APPLIED IN THE
FIRST TAX YEAR INVOLVED, THE NEW YORK COURT OF APPEALS REMITTED THE
PROCEEDINGS TO THE COMPTROLLER TO DETERMINE WHETHER ANY OF THE ROLLING
STOCK WAS USED EXCLUSIVELY OUT OF THE STATE.  173 N.Y. 255, 65 N.E.
1102.  NO SUCH EVIDENCE WAS INTRODUCED FOR ANY TAX YEAR, ALTHOUGH THERE
WAS EVIDENCE TO SHOW "THAT A CERTAIN PROPORTION OF CARS, ALTHOUGH NOT
THE SAME CARS, WAS CONTINUOUSLY WITHOUT THE STATE DURING THE WHOLE TAX
YEAR."  202 U.S. 584, 594.  THE COMPTROLLER MADE NO REDUCTION IN THE
TAX, AND THIS ACTION WAS AFFIRMED BY THE APPELLATE DIVISION (89 APP.
DIV. 127, 84 N.Y.S. 1088), THE COURT OF APPEALS (177 N.Y. 584, 69 N.E.
1129) AND ON REVIEW HERE. 

FN2  IN THE JOHNSON OIL CO. CASE, SUPRA, THIS COURT REAFFIRMED NOT
LESS THAN THREE TIMES THAT THE STATE OF DOMICILE HAS JURISDICTION TO
TAX THE PERSONAL PROPERTY OF ITS CORPORATION UNLESS SUCH PROPERTY HAS
ACQUIRED AN "ACTUAL SITUS" IN ANOTHER STATE.  AND BY "ACTUAL SITUS" IT
MEANT, AS ITS REFERENCES TO UNION TRANSIT CO. V. KENTUCKY, SUPRA, AND
THE MILLER CASE INDICATE, WHAT THOSE CASES REQUIRED FOR "ACTUAL SITUS"
BEFORE THE CONSTITUTIONAL POWER OF THE DOMICILIARY STATE TO TAX COULD
BE CURTAILED, NAMELY CONTINUOUS PRESENCE IN ANOTHER STATE WHICH THEREBY
SUPPLANTS THE HOME STATE AND ACQUIRES THE TAXING POWER OVER PERSONALTY
THAT HAS BECOME A PERMANENT PART OF THE FOREIGN STATE.  SURELY THE
SITUS WHICH PERSONAL PROPERTY MAY ACQUIRE FOR TAX PURPOSES IN A STATE
OTHER THAN THAT OF THE OWNER'S DOMICILE CANNOT BE MADE TO DEPEND ON
SOME UNDEFINED CONCEPT OF "PERMANENCE" SHORT OF A TAX YEAR, LEAVING THE
ADEQUATE SIZE OF THE FRACTION OF THE TAX YEAR FOR JUDICIAL
DETERMINATION IN EACH YEAR.  SUCH A DOCTRINE WOULD PLAY HAVOC WITH THE
TAX LAWS OF THE FORTY-EIGHT STATES.  IT WOULD MULTIPLY MANIFOLD THE
RECOGNIZED DIFFICULTIES OF ASCERTAINING THE DOMICILE OF INDIVIDUALS. 
SEE TEXAS V. FLORIDA, 306 U.S. 398; DISTRICT OF COLUMBIA V. MURPHY, 314
U.S. 441. 

FN3  IN THE MOST RECENT APPORTIONMENT CASE TO COME BEFORE THIS COURT,
NASHVILLE, C. & ST. L. RY. V. BROWNING, 310 U.S. 362, WE MERELY
SUSTAINED THE APPLICATION BY THE TENNESSEE RAILROAD COMMISSION AND THE
TENNESSEE SUPREME COURT OF A "FAMILIAR AND FREQUENTLY SANCTIONED
FORMULA" FOR APPORTIONMENT ON A MILEAGE BASIS AGAINST THE CLAIM OF THE
INAPPLICABILITY OF THIS FORMULA IN THE CIRCUMSTANCES OF THAT CASE
BECAUSE OF THE DISPARITY IN THE REVENUE-PRODUCING CAPACITY BETWEEN THE
LINES IN AND OUT OF TENNESSEE.  MATHEMATICAL EXACTITUDE IN MAKING THE
APPORTIONMENT HAS NEVER BEEN A CONSTITUTIONAL REQUIREMENT.  THAT IS THE
ESSENCE OF THE BROWNING HOLDING.  NO SUGGESTION CAN BE FOUND AT ANY
STAGE OF THAT LITIGATION IN ANY WISE TOUCHING THE PRESENT PROBLEM,
NAMELY, WHETHER THE DOMICILIARY STATE IS CONSTITUTIONALLY LIMITED IN
TAXING ALL THE MOVABLES THAT COME WITHIN IT EXCEPT BY THE UNION TRANSIT
DOCTRINE, THAT A PROPORTION WHICH HAD DURING THE ENTIRE TAX YEAR BEEN
WITHIN ANOTHER STATE CANNOT BE TAXED IN THE DOMICILIARY STATE. 

FN4  IN SPEAKING OF "OCCASIONAL EXCURSIONS TO FOREIGN PARTS" AND
"RANDOM EXCURSIONS" (202 U.S. AT 597), MR. JUSTICE HOLMES MERELY PUT
COLLOQUIALLY THE LEGALLY SIGNIFICANT FACT THAT NEITHER ANY SPECIFIC
CARS NOR ANY AVERAGE OF CARS WAS SO CONTINUOUSLY IN ANY OTHER STATE AS
TO HAVE BEEN WITHDRAWN FROM THE HOME STATE AND TO HAVE ESTABLISHED FOR
TAX PURPOSES AN ADOPTED HOME STATE. 

FN5  AND THAT THE CONSTITUTIONAL POWER OF THE DOMICILIARY STATE TO
TAX VESSELS IS PRECISELY THE SAME AS ITS POWER TO TAX ROLLING STOCK IS
CONCLUSIVELY SHOWN BY THE COURT'S RELIANCE IN THE MILLER CASE ON A CASE
DECIDED A WEEK BEFORE, NAMELY, AYER & LORD CO. V. KENTUCKY, 202 U.S.
409. 

MR. JUSTICE BLACK, CONCURRING: 

I CONCUR IN THE JUDGMENT OF THE COURT AND IN SUBSTANTIALLY ALL THAT
IS SAID IN THE OPINION, BUT I WOULD NOT IN THIS CASE FORECLOSE
CONSIDERATION OF THE TAXING RIGHTS OF STATES OTHER THAN MINNESOTA. 

I BELIEVE THERE IS SMALL SUPPORT IN REASON OR IN THE CONSTITUTION FOR
THE DOCTRINE THAT THE COMMERCE CLAUSE IN AND OF ITSELF PROHIBITS A
STATE FROM APPLYING ITS GENERAL TAX LAWS TO TRANSACTIONS AND PROPERTIES
IN INTERSTATE COMMERCE UNLESS IT IS ABLE TO MAKE TWO CORRECT PROPHECIES
AS TO WHAT THIS COURT ULTIMATELY MAY HOLD, NAMELY, (1) THE PERMISSIBLE
TOTAL OF TAXES WHICH MIGHT BE IMPOSED BY AN AGGREGATE OF STATES ON THE
TAXED PROPERTIES OR TRANSACTIONS; AND (2) THE PROPORTION OF THIS TOTAL
WHICH THE STATE ITSELF FAIRLY MAY CLAIM.  SEE DISSENTING OPINIONS IN
ADAMS MANUFACTURING CO. V. STOREN, 304 U.S. 307, 316; GWIN, WHITE &
PRINCE V. HENNEFORD, 305 U.S. 434, 442.  EXTENSION OF THIS DUBIOUS
DOCTRINE TO THE NEW PROBLEMS OF AIR TRANSPORT GIVES PROMISE OF LITTLE
BUT TAX CONFUSION. 

THE DIFFERING VIEWS OF MEMBERS OF THE COURT IN THIS AND RELATED CASES
ILLUSTRATE THE DIFFICULTIES INHERENT IN THE JUDICIAL FORMULATION OF
GENERAL RULES TO MEET THE NATIONAL PROBLEMS ARISING FROM STATE TAXATION
WHICH BEARS IN INCIDENCE UPON INTERSTATE COMMERCE.  THESE PROBLEMS, IT
SEEMS TO ME, CALL FOR CONGRESSIONAL INVESTIGATION, CONSIDERATION, AND
ACTION.  THE CONSTITUTION GIVES THAT BRANCH OF GOVERNMENT THE POWER TO
REGULATE COMMERCE AMONG THE STATES, AND UNTIL IT ACTS I THINK WE SHOULD
ENTER THE FIELD WITH EXTREME CAUTION.  SEE DISSENTING OPINION,
MCCARROLL V. DIXIE GREYHOUND LINES, 309 U.S. 176, 183. 

MR. JUSTICE JACKSON, CONCURRING: 

THIS CASE CONSIDERS FOR THE FIRST TIME CONSTITUTIONAL LIMITATIONS
UPON STATE POWER TO TAX AIRPLANES.  SEVERAL PRINCIPLES OF LIMITATION
HAVE BEEN JUDICIALLY EVOLVED IN REFERENCE TO SHIPS AND TO RAILROAD
ROLLING STOCK.  THE QUESTION IS WHICH, IF ANY, OF THESE SHOULD BE
TRANSFERRED TO AIR TRANSPORT. 

WE ARE AT A STAGE IN DEVELOPMENT OF AIR COMMERCE ROUGHLY COMPARABLE
TO THAT OF STEAMSHIP NAVIGATION IN 1824 WHEN GIBBONS V. OGDEN, 9
WHEAT.  1, CAME BEFORE THIS COURT.  ANY AUTHORIZATION OF LOCAL BURDENS
ON OUR NATIONAL AIR COMMERCE WILL LEAD TO THEIR MULTIPLICATION IN THIS
COUNTRY.  MOREOVER, SUCH AN EXAMPLE IS NOT LIKELY TO BE NEGLECTED BY
OTHER REVENUE-NEEDY NATIONS AS INTERNATIONAL AIR TRANSPORT EXPANDS. 

AVIATION HAS ADDED A NEW DIMENSION TO TRAVEL AND TO OUR IDEAS.  THE
ANCIENT IDEA THAT LANDLORDISM AND SOVEREIGNTY EXTEND FROM THE CENTER OF
THE WORLD TO THE PERIPHERY OF THE UNIVERSE HAS BEEN MODIFIED.  TODAY
THE LANDOWNER NO MORE POSSESSES A VERTICAL CONTROL OF ALL THE AIR ABOVE
HIM THAN A SHORE OWNER POSSESSES HORIZONTAL CONTROL OF ALL THE SEA
BEFORE HIM.  THE AIR IS TOO PRECIOUS AS AN OPEN HIGHWAY TO PERMIT IT TO
BE "OWNED" TO THE EXCLUSION OR EMBARRASSMENT OF AIR NAVIGATION BY
SURFACE LANDLORDS WHO COULD PUT IT TO LITTLE REAL USE. 

STUDENTS OF OUR LEGAL EVOLUTION KNOW HOW THIS COURT INTERPRETED THE
COMMERCE CLAUSE OF THE CONSTITUTION TO LIFT NAVIGABLE WATERS OF THE
UNITED STATES OUT OF LOCAL CONTROLS AND INTO THE DOMAIN OF FEDERAL
CONTROL.  GIBBONS V. OGDEN, 9 WHEAT.  1, TO UNITED STATES V.
APPALACHIAN POWER CO., 311 U.S. 377.  AIR AS AN ELEMENT IN WHICH TO
NAVIGATE IS EVEN MORE INEVITABLY FEDERALIZED BY THE COMMERCE CLAUSE
THAN IS NAVIGABLE WATER.  LOCAL EXACTIONS AND BARRIERS TO FREE TRANSIT
IN THE AIR WOULD NEUTRALIZE ITS INDIFFERENCE TO SPACE AND ITS CONQUEST
OF TIME. 

CONGRESS HAS RECOGNIZED THE NATIONAL RESPONSIBILITY FOR REGULATING
AIR COMMERCE.  FEDERAL CONTROL IS INTENSIVE AND EXCLUSIVE.  PLANES DO
NOT WANDER ABOUT IN THE SKY LIKE VAGRANT CLOUDS.  THEY MOVE ONLY BY
FEDERAL PERMISSION, SUBJECT TO FEDERAL INSPECTION, IN THE HANDS OF
FEDERALLY CERTIFIED PERSONNEL AND UNDER AN INTRICATE SYSTEM OF FEDERAL
COMMANDS.  THE MOMENT A SHIP TAXIS ONTO A RUNWAY IT IS CAUGHT UP IN AN
ELABORATE AND DETAILED SYSTEM OF CONTROLS.  IT TAKES OFF ONLY BY
INSTRUCTION FROM THE CONTROL TOWER, IT TRAVELS ON PRESCRIBED BEAMS, IT
MAY BE DIVERTED FROM ITS INTENDED LANDING, AND IT OBEYS SIGNALS AND
ORDERS.  ITS PRIVILEGES, RIGHTS AND PROTECTION, SO FAR AS TRANSIT IS
CONCERNED, IT OWES TO THE FEDERAL GOVERNMENT ALONE AND NOT TO ANY STATE
GOVERNMENT. 

CONGRESS HAS NOT EXTENDED ITS PROTECTION AND CONTROL TO THE FIELD OF
TAXATION, ALTHOUGH I TAKE IT NO ONE DENIES THAT CONSTITUTIONALLY IT MAY
DO SO.  IT MAY EXACT A SINGLE UNIFORM FEDERAL TAX ON THE PROPERTY OR
THE BUSINESS TO THE EXCLUSION OF TAXATION BY THE STATES.  IT MAY
SUBJECT THE VEHICLES OR OTHER INCIDENTS TO ANY TYPE OF STATE AND LOCAL
TAXATION, OR IT MAY DECLARE THEM TAX-FREE ALTOGETHER.  OUR FUNCTION IS
TO DETERMINE WHAT RULE GOVERNS IN THE ABSENCE OF SUCH LEGISLATIVE
ENACTMENT. 

CERTAINLY TODAY FLIGHT OVER A STATE EITHER CASUALLY OR ON REGULAR
ROUTES AND SCHEDULES CONFERS NO JURISDICTION TO TAX.  EARLIER IDEAS OF
A STATE'S SOVEREIGNTY OVER THE AIR ABOVE IT MIGHT ARGUE FOR SUCH A
RIGHT TO TAX, BUT IT IS ONE OF THOSE CASES WHERE LEGAL PHILOSOPHY HAS
TO TAKE ACCOUNT OF THE FACT THAT THE WORLD DOES MOVE. 

DOES THE ACT OF LANDING WITHIN A STATE, EVEN REGULARLY AND ON
SCHEDULE, CONFER JURISDICTION TO TAX?  UNDOUBTEDLY A PLANE, LIKE ANY
OTHER ARTICLE OF PERSONAL PROPERTY, COULD LAND OR REMAIN WITHIN A STATE
IN SUCH A WAY AS TO BECOME A PART OF THE PROPERTY WITHIN THE STATE. 
BUT WHEN A PLANE LANDS TO RECEIVE AND DISCHARGE PASSENGERS, TO UNDERGO
SERVICING OR REPAIRS, OR TO AWAIT A CONVENIENT DEPARTING SCHEDULE, IT
DOES NOT IN MY OPINION LOSE ITS CHARACTER AS A PLANE IN TRANSIT.  LONG
AGO THIS COURT HELD THAT THE LANDING OF A SHIP WITHIN THE PORTS OF A
STATE FOR SIMILAR PURPOSES DID NOT CONFER JURISDICTION TO TAX.  HAYS V.
PACIFIC MAIL S.S. CO., 17 HOW.  596; ST. LOUIS V. FERRY CO., 11 WALL. 
423; MORGAN V. PARHAM, 16 WALL.  471; CF. AYER & LORD TIE CO. V.
KENTUCKY, 202 U.S. 409.  I CANNOT CONSIDER THAT TO ALIGHT OUT OF THE
SKIES ONTO A LANDING FIELD AND TAKE OFF AGAIN INTO THE AIR CONFERS ANY
GREATER TAXING JURISDICTION ON A STATE THAN FOR A SHIP FOR THE SAME
PURPOSES TO COME ALONGSIDE A WHARF ON THE WATER AND GET UNDER WAY
AGAIN. 

WHAT, THEN, REMAINS AS A BASIS FOR MINNESOTA'S CLAIM TO TAX THIS
ENTIRE FLEET OF PLANES AT THEIR FULL VALUE AS PROPERTY OF THE STATE OF
MINNESOTA?  THEY HAVE BEEN WITHIN THE STATE ONLY TRANSIENTLY AND IN THE
SAME MANNER IN WHICH THEY HAVE BEEN IN MANY STATES:  TO SERVE THE
PUBLIC AND TO BE SERVICED.  THE PLANES HAVE RECEIVED NO "PROTECTION" OR
"BENEFIT" FROM MINNESOTA THAT THEY HAVE NOT RECEIVED FROM MANY OTHERS. 
IT MIGHT BE DIFFICULT, IN VIEW OF THE COMPLETE CONTROL OF THIS TYPE OF
ACTIVITY BY THE FEDERAL GOVERNMENT, TO FIND WHAT BENEFITS OR PROTECTION
ANY STATE EXTENDS.  BUT NO DISTINCTION WHATEVER CAN BE POINTED OUT
BETWEEN THOSE EXTENDED BY MINNESOTA AND THOSE EXTENDED BY ANY STATE
WHERE THERE IS A TERMINAL OR A STOPPING PLACE. 

BUT IT IS SAID THAT MINNESOTA INCORPORATED THE COMPANY.  OF COURSE IT
IS HER RIGHT TO TAX THE COMPANY SHE HAS CREATED AND THE FRANCHISE SHE
HAS GRANTED.  I SUPPOSE THERE ARE MANY WAYS THAT SHE MIGHT
CONSTITUTIONALLY MEASURE THE VALUE OF THIS PRIVILEGE.  IF SHE CHARTERED
A CORPORATION ON CONDITION THAT ALL PROPERTY IT MIGHT ACQUIRE, TANGIBLE
OR INTANGIBLE, SHOULD BE TAXABLE UNDER HER LAWS, I DO NOT THINK A
COMPANY WHICH ACCEPTED SUCH A CHARTER COULD APPEAL TO THE CONSTITUTION
TO GIVE BACK WHAT IT VOLUNTARILY CONTRACTED AWAY.  BUT NO SUCH
STIPULATION HAS BEEN MADE IN THE CHARTER IN THIS CASE.  THE TAX IMPOSED
HERE IS A GENERAL AD VALOREM PROPERTY TAX ON THE FULL VALUE OF EVERY
PLANE OF THE FLEET OPERATED BY THIS COMPANY.  DOMICILE OF AN OWNER IS A
USUAL TEST OF POWER TO TAX INTANGIBLES, BUT HAS NOT GENERALLY BEEN A
CONCLUSIVE TEST OF TAXABILITY OF TANGIBLE PROPERTY SITUATED ELSEWHERE. 
IF WE SHOULD SUPPOSE THAT THIS CORPORATION HAD A DELAWARE CHARTER
INSTEAD OF A MINNESOTA ONE, AND HAD NOTHING IN DELAWARE EXCEPT ITS
AGENT, BUT OPERATED OTHERWISE IN MINNESOTA EXACTLY AS IT HAS DONE,
WOULD WE SAY THAT THE ENTIRE RIGHT TO TAX THE FLEET MOVED TO DELAWARE
BECAUSE IT WAS THE CORPORATION'S STATE OF DOMICILE?  I DO NOT THINK
THAT DOMICILE, IN THE FACTS OF THIS CASE, IS DECISIVE OF MINNESOTA'S
CLAIM TO TAX THE TANGIBLE PROPERTY OF THE COMPANY WHEREVER SITUATE. 
IT IS STRONGLY AND PLAUSIBLY ADVOCATED THAT THE THEORY OF APPORTIONMENT
OF THE TOTAL VALUE AMONG THE SEVERAL STATES OF OPERATION, HERETOFORE
APPLIED TO STATE TAXATION OF RAILROAD ROLLING STOCK, BE TRANSFERRED TO
AIR TRANSPORTATION.  THIS WOULD MEAN THAT EACH STATE OF OPERATION (NO
ONE VENTURES TO SAY WHETHER FLIGHT ALONE OR BOTH FLIGHT AND LANDING
WOULD BE REQUIRED) COULD TAX A PROPORTION OF THE TOTAL VALUE. 

THE APPORTIONMENT THEORY IS A MONGREL ONE, A CROSS BETWEEN DESIRE NOT
TO INTERFERE WITH STATE TAXATION AND DESIRE AT THE SAME TIME NOT
UTTERLY TO CRUSH OUT INTERSTATE COMMERCE.  IT IS A PRACTICAL, BUT
RATHER ILLOGICAL, DEVICE TO PREVENT DUPLICATION OF TAX BURDENS ON
VEHICLES IN TRANSIT.  IT IS ESTABLISHED IN OUR DECISIONS AND HAS BEEN
FOUND MORE OR LESS WORKABLE WITH MORE OR LESS ARBITRARY FORMULAE OF
APPORTIONMENT.  NOTHING EITHER IN THEORY OR IN PRACTICE COMMENDS IT FOR
TRANSFER TO AIR COMMERCE.  A STATE HAS A DIFFERENT RELATION TO ROLLING
STOCK OF RAILROADS THAN IT HAS TO AIRPLANES.  ROLLING STOCK IS USELESS
WITHOUT SURFACE RIGHTS AND CONTINUOUS STRUCTURES ON EVERY INCH OF LAND
OVER WHICH IT OPERATES.  SURFACE RIGHTS THE RAILROAD HAS ACQUIRED FROM
THE STATE OR UNDER ITS LAW.  THERE IS A PHYSICAL BASIS WITHIN THE STATE
FOR THE TAXATION OF ROLLING STOCK WHICH IS LACKING IN THE CASE OF
AIRPLANES. 

IT SEEMS MORE THAN LIKELY THAT NO SOLUTION OF THE COMPETITION AMONG
STATES TO TAX THIS TRANSPORTATION AGENCY CAN BE DEVISED BY THE JUDICIAL
PROCESS WITHOUT LEGISLATIVE HELP.  THE BEST ANALOGY THAT I FIND IN
EXISTING DECISIONS IS THE "HOME PORT" THEORY APPLIED TO SHIPS.  SEE
HAYS V. PACIFIC MAIL S.S. CO., ST. LOUIS V. FERRY CO., MORGAN V.
PARHAM, SUPRA.  THERE IS DIFFICULTY IN THE APPLICATION OF THIS DOCTRINE
TO AIR COMMERCE, I GRANT.  THERE IS NO STATUTORY MACHINERY FOR FIXING
THE HOME PORT.  IF FEDERAL REGISTRATION ESTABLISHED STATEHOOD AS IT
ESTABLISHES NATIONALITY, THE HOME PORT DOCTRINE WOULD BE EASY TO
APPLY.  HOWEVER, ON THE RECORD BEFORE US IT SEEMS UNQUESTIONED THAT
MINNESOTA IS IN AN OPERATIONAL AS WELL AS IN A DOMICILIARY SENSE THE
HOME PORT OF THIS FLEET.  ON THAT DOCTRINE MINNESOTA CAN TAX THE FLEET,
BUT ITS RIGHT TO DO SO IS EXCLUSIVE, FOR NO OTHER STATE CAN ACQUIRE
JURISDICTION TO TAX MERELY BECAUSE IT PROVIDES A PORT OF CALL.  I
THEREFORE CONCUR IN THE CONCLUSION REACHED BY THE OPINION OF MR.
JUSTICE FRANKFURTER.  I DO NOT ACCEPT THE OPINION BECAUSE IT FALLS
SHORT OF COMMITMENT THAT MINNESOTA'S RIGHT IS EXCLUSIVE OF ANY SIMILAR
RIGHT ELSEWHERE.  IT IS, I KNOW, DIFFICULT TO JUDGE AND DANGEROUS TO
FORECLOSE CLAIMS OF OTHER STATES THAT ARE NOT BEFORE US.  THAT IS THE
WEAKNESS OF THE JUDICIAL PROCESS IN THESE TAX QUESTIONS WHERE THE TOTAL
PROBLEM THAT FACES AN INDUSTRY REACHES US ONLY IN INSTALLMENTS.  IF THE
REASONING SHOULD HEREAFTER BE EXTENDED TO SUPPORT FULL TAXATION
EVERYWHERE, IT WOULD OFFEND THE COMMERCE CLAUSE, AS I SEE IT, EVEN MORE
SERIOUSLY THAN APPORTIONED TAXATION EVERYWHERE. 

THE EVILS OF LOCAL TAXATION OF GOODS OR VEHICLES IN TRANSIT ARE NOT
MEASURED BY THE EXACTION OF ONE LOCALITY ALONE, BUT BY THE AGGREGATION
OF THEM.  I CERTAINLY DO NOT FAVOR EXEMPTION OF INTERSTATE COMMERCE
FROM ITS "JUST SHARE OF TAXATION."  BUT HISTORY SHOWS THAT FAIR
JUDGMENT AS TO WHAT EXACTIONS ARE JUST TO THE PASSER-BY CANNOT BE LEFT
TO LOCAL OPINION.  WHEN LOCAL AUTHORITY IS TAXING ITS OWN, THE TAXED
ONES MAY BE ASSUMED TO BE ABLE TO PROTECT THEMSELVES AT THE POLLS.  NO
SUCH SANCTION ENFORCES FAIR DEALING TO THE TRANSIENT.  IN ALL AGES AND
CLIMES THOSE WHO ARE SETTLED IN STRATEGIC LOCALITIES HAVE MADE THE
MOVING WORLD PAY DEARLY.  THIS THE COMMERCE CLAUSE WAS DESIGNED TO END
IN THE UNITED STATES. 

THE RULE I SUGGEST SEEMS MOST CONSONANT WITH THE PURPOSES OF THE
COMMERCE CLAUSE AMONG THOSE FOUND IN OUR PRECEDENTS.  BUT THE WHOLE
PROBLEM WE DEAL WITH IS UNPRECEDENTED.  I DO NOT THINK WE CAN DERIVE
FROM DECISIONAL LAW A SATISFACTORY ADJUSTMENT OF THE CONFLICTING NEEDS
OF THE NATION FOR FREE AIR COMMERCE AND THE NATURAL DESIRE OF
LOCALITIES TO HAVE REVENUE FROM THE BUSINESS THAT GOES ON ABOUT THEM. 

I CONCUR IN THE AFFIRMANCE OF THE JUDGMENT BELOW, BUT ONLY BECAUSE
THE RECORD SEEMS TO ME TO ESTABLISH MINNESOTA AS A "HOME PORT" WITHIN
THE MEANING OF THE OLD AND SOMEWHAT NEGLECTED BUT TO ME WISE
AUTHORITIES CITED. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

IN MY OPINION THE MINNESOTA LEVY IMPOSED AN UNCONSTITUTIONAL TAX ON
PETITIONER'S VEHICLES OF INTERSTATE TRANSPORTATION IN VIOLATION OF THE
COMMERCE CLAUSE, AND FOR THAT REASON THE JUDGMENT BELOW SHOULD BE
REVERSED. 

PETITIONER, A MINNESOTA CORPORATION, IS OWNER OF A LARGE NUMBER OF
AIRPLANES WHICH IT USES EXCLUSIVELY IN INTERSTATE TRANSPORTATION MOVING
ON REGULAR SCHEDULES AND OVER FIXED ROUTES EXTENDING THROUGH EIGHT
STATES BETWEEN CHICAGO, ILLINOIS, AND THE PACIFIC COAST, WITH THE USUAL
LANDING FIELDS AND MAINTENANCE BASES AT INTERMEDIATE POINTS, INCLUDING
MINNEAPOLIS AND ST. PAUL, MINNESOTA.  IT IS STIPULATED THAT ON MAY 1,
1939, 14% OF THE TOTAL MILEAGE OF THE PRESCRIBED INTERSTATE ROUTES WAS
IN MINNESOTA AND THAT 16% OF THE DAILY PLANE MILEAGE OF ALL
PETITIONER'S INTERSTATE PLANES WAS IN THAT STATE. 

ALTHOUGH THE MINNESOTA STATUTE TAXING PERSONAL PROPERTY DIRECTS THAT
IT SHALL BE LISTED FOR TAXATION ON MAY 1ST OF EACH YEAR AND ASSESSED
FOR TAXATION AT ITS VALUE ON THAT DATE, MINN. STAT. 1941 SEC. 273.01,
THE STATE TAXING AUTHORITIES HAVE LEVIED ON PETITIONER, AND THE
MINNESOTA SUPREME COURT AND THIS COURT HAVE SUSTAINED, AN ANNUAL TAX ON
THE FULL VALUE OF ALL ITS PLANES USED IN INTERSTATE COMMERCE WHICH HAVE
COME INTO THE STATE AT ANY TIME DURING THE YEAR.  IT IS EVIDENT THAT
IF, WITH THE MINNESOTA TAX NOW SUSTAINED, OTHER STATES ARE LEFT FREE TO
IMPOSE A FURTHER OR COMPARABLE TAX ON THE SAME PROPERTY FOR THE SAME
TAX PERIOD, A SERIOUS QUESTION IS RAISED WHETHER THE TAX IS NOT A
PROHIBITED BURDEN ON INTERSTATE COMMERCE. 

IT IS NO LONGER DOUBTED THAT INTERSTATE BUSINESS "MUST PAY ITS WAY"
BY SUSTAINING ITS FAIR SHARE OF THE PROPERTY TAX BURDEN WHICH THE
STATES IN WHICH THE INTERSTATE BUSINESS IS DONE MAY LAWFULLY IMPOSE
GENERALLY ON PROPERTY LOCATED WITHIN THEM.  SEE WESTERN LIVE STOCK V.
BUREAU, 303 U.S. 250, 254-5 AND CASES CITED.  OBVIOUSLY INTERSTATE
BUSINESS BEARS NO UNDUE PART OF THAT BURDEN IF THE PERSONAL PROPERTY
TAX IMPOSED ON IT BY A GIVEN STATE IS - LIKE A TAX ON REAL ESTATE
LOCATED THERE - EXCLUSIVE OF ALL OTHER PROPERTY TAXES IMPOSED BY OTHER
STATES, AS IS THE CASE WITH THE TAXATION OF VESSELS, OLD DOMINION S.S.
CO. V. VIRGINIA, 198 U.S. 299; SOUTHERN PACIFIC RY. V. KENTUCKY, 222
U.S. 63 AND CASES CITED; CF. N.Y. CENTRAL & H.R.R. CO. V. MILLER, 202
U.S. 584, OR IF THE TAX ON ITS PERSONAL PROPERTY REGULARLY USED OVER
FIXED ROUTES IN INTERSTATE COMMERCE, BOTH WITHIN AND WITHOUT THE TAXING
STATE, IS FAIRLY APPORTIONED TO ITS USE WITHIN THE STATE, AS HAS UNTIL
NOW BEEN THE RULE AS TO RAILROAD CARS.  MARYE V. BALTIMORE & OHIO R.
CO., 127 U.S. 117, 123-4; PULLMAN'S CAR CO. V. PENNSYLVANIA, 141 U.S.
18; AMERICAN REFRIGERATOR TRANSIT CO. V. HALL, 174 U.S. 70; UNION
TRANSIT CO. V. LYNCH, 177 U.S. 149; UNION TRANSIT CO. V. KENTUCKY, 199
U.S. 194; GERMANIA REFINING CO. V. FULLER, 245 U.S. 632; UNION TANK
LINE CO. V. WRIGHT, 249 U.S. 275; JOHNSON OIL CO. V. OKLAHOMA, 290 U.S.
158. 

IF THE TAX LEVIED HERE WERE HELD TO BE EXCLUSIVE OF ALL PROPERTY
TAXES IMPOSED ON PETITIONER'S AIRPLANES BY OTHER STATES THERE COULD BE
NO SERIOUS QUESTION OF AN UNDUE BURDEN ON INTERSTATE COMMERCE.  THAT
QUESTION ARISES NOW ONLY BECAUSE THE RATIONALE FOUND NECESSARY TO
SUPPORT THE PRESENT TAX LEAVES OTHER STATES FREE TO IMPOSE COMPARABLE
TAXES ON THE SAME PROPERTY USED IN INTERSTATE COMMERCE WHICH MINNESOTA
HAS ALREADY TAXED FOR THE ENTIRE TAXABLE YEAR AND AT ITS FULL VALUE. 

SUCH, I THINK, IS THE NECESSARY CONSEQUENCE OF THE COURT'S DECISION
AND JUDGMENT NOW GIVEN.  THEY DO NOT SUSTAIN THE TAX ON THE GROUND THAT
MINNESOTA, AS THE STATE OF PETITIONER'S DOMICILE, HAS EXCLUSIVE POWER
TO TAX RESPONDENT'S PLANES WHICH PASS IN AND OUT OF MINNESOTA IN
PERFORMANCE OF THEIR INTERSTATE FUNCTIONS.  THEY DO NOT DENY THAT THE
PLANES ARE CONSTITUTIONALLY SUBJECT, TO SOME EXTENT, TO PERSONAL
PROPERTY TAXES BY THE STATES THROUGH WHICH THEY PASS.  OUR DECISIONS,
AS WILL PRESENTLY APPEAR, ESTABLISH THAT THEY ARE, AND THAT VEHICLES OF
INTERSTATE TRANSPORTATION MOVING FROM THE STATE OF THE OWNER'S DOMICILE
OVER REGULAR ROUTES WITHIN THE JURISDICTION OF OTHER STATES ALSO
ACQUIRE A TAX SITUS THERE, SO THAT, TO AN EXTENT PRESENTLY TO BE
CONSIDERED, THEY MAY BE TAXED BY EACH OF THE STATES THROUGH WHICH THEY
PASS.  IN FACT THE RECORD DISCLOSES THAT PETITIONER'S INTERSTATE
PLANES, ALREADY TAXED BY MINNESOTA FOR THEIR FULL VALUE, ARE IN
ADDITION SUBJECTED TO PERSONAL PROPERTY TAXES IN SIX OF THE SEVEN OTHER
STATES THROUGH WHICH THEY FLY. 

BUT IF PETITIONER'S AIRPLANES, WHICH ARE TAXABLE FOR SOME PORTION OF
THEIR VALUE IN EACH OF THE STATES IN WHICH THEY CARRY ON INTERSTATE
TRANSPORTATION OVER FIXED ROUTES AND REGULAR SCHEDULES, ARE ALSO TAXED
FOR THEIR FULL VALUE BY MINNESOTA, THE STATE OF THE DOMICILE, IT IS
EVIDENT THAT MERELY BECAUSE THEY ARE ENGAGED IN INTERSTATE COMMERCE
THEY MAY BE SUBJECTED TO MULTIPLE STATE TAXATION FAR IN EXCESS OF THEIR
VALUE, AND FAR BEYOND ANY TAX WHICH ANY ONE OF THE STATES CONCERNED
COULD UNDER ITS ESTABLISHED SYSTEM OF TAXATION IMPOSE ON VEHICLES WHOSE
MOVEMENTS ARE CONFINED WITHIN ITS TERRITORIAL LIMITS.  IT IS A SCHEME
OF PROPERTY TAXATION ON WHICH, SO FAR AS THE DECISION NOW RENDERED
GIVES US ANY HINT, THE COMMERCE CLAUSE SETS NO RESTRICTION, BUT WHICH
IS SO BURDENSOME IN ITS OPERATION AS COMPARED WITH THE TAXES IMPOSED ON
INTRASTATE VEHICLES THAT FEW INTERSTATE CARRIERS COULD SUPPORT IT AND
SURVIVE ECONOMICALLY. 

THE CASE THUS SHARPLY PRESENTS IN A NEW FORM THE OLD QUESTION WHETHER
THE COMMERCE CLAUSE AFFORDS ANY PROTECTION AGAINST MULTIPLE STATE
TAXATION OF THE PHYSICAL FACILITIES USED IN INTERSTATE TRANSPORTATION
WHICH, BECAUSE THEY MOVE FROM STATE TO STATE, ARE EXPOSED TO FULL
TAXATION IN EACH, SAVE ONLY AS THE DUE PROCESS AND COMMERCE CLAUSES MAY
PREVENT.  ALTHOUGH THE QUESTION IS NEW IN FORM IT IS OLD IN SUBSTANCE
AND THIS COURT HAS CONSIDERED IT SO OFTEN IN OTHER BUT SIMILAR
RELATIONSHIPS THAT THE ANSWER HERE SEEMS PLAIN. 

OF CONTROLLING SIGNIFICANCE IN THIS CASE ARE CERTAIN ELEMENTARY
PROPOSITIONS, SO LONG ACCEPTED AND APPLIED BY THIS COURT THAT THEY
CANNOT BE SAID TO BE DEBATABLE HERE, ALTHOUGH THEY SEEM NOT TO HAVE
BEEN TAKEN INTO ACCOUNT IN DECIDING THIS CASE EITHER HERE OR IN THE
MINNESOTA SUPREME COURT.  THE FIRST IS THAT THE CONSTITUTIONAL BASIS
FOR THE STATE TAXATION OF THE AIRPLANES, WHICH ARE CHATTELS, IS THEIR
PHYSICAL PRESENCE WITHIN THE TAXING STATE, AND NOT THE DOMICILE OF THE
OWNER.  UNION TRANSIT CO. V. KENTUCKY, SUPRA; JOHNSON OIL CO. V.
OKLAHOMA, SUPRA, 161-2 AND CASES CITED.  IN THIS RESPECT, AS THIS COURT
HAS OFTEN POINTED OUT, THE TAXATION OF CHATTELS RESTS ON A DIFFERENT
BASIS THAN DOES THE TAXATION OF INTANGIBLES, WHICH HAVE NO PHYSICAL
SITUS AND MAY BE REACHED BY THE TAX GATHERER ONLY THROUGH EXERTION OF
THE POWER OF THE STATE OVER THE PERSON OF THOSE WHO HAVE SOME LEGAL
INTEREST IN THE INTANGIBLES.  UNION TRANSIT CO. V. KENTUCKY, SUPRA, 205
6; SCHWAB V. RICHARDSON, 263 U.S. 88, 92; FRICK V. PENNSYLVANIA, 268
U.S. 473, 494; BLODGETT V. SILBERMAN, 277 U.S. 1, 16-18; WHEELING STEEL
CORP. V. FOX, 298 U.S. 193, 209-10; CURRY V. MCCANLESS, 307 U.S. 357,
363-6; GRAVES V. ELLIOTT, 307 U.S. 383; GRAVES V. SCHMIDLAPP, 315 U.S.
657; STATE TAX COMM'N V. ALDRICH, 316 U.S. 174. 

A STATE MAY, WITHIN THE FOURTEENTH AMENDMENT, TAX A CHATTEL LOCATED
WITHIN ITS LIMITS, ALTHOUGH ITS OWNER IS DOMICILED ELSEWHERE.  BROWN V.
HOUSTON, 114 U.S. 622; COE V. ERROL, 116 U.S. 517; PULLMAN'S CAR CO. V.
PENNSYLVANIA, SUPRA; OLD DOMINION S.S. CO. V. VIRGINIA, SUPRA.  BUT DUE
PROCESS PRECLUDES THE STATE OF THE DOMICILE FROM TAXING IT UNLESS IT IS
BROUGHT WITHIN THAT STATE'S BOUNDARIES.  DELAWARE, L. & W.R. CO. V.
PENNSYLVANIA, 198 U.S. 341; UNION TRANSIT CO. V. KENTUCKY, SUPRA; FRICK
V. PENNSYLVANIA, SUPRA, 489 ET SEQ. IT IS PLAIN THEN THAT FOR PRESENT
PURPOSES, AND SO FAR AS THE FOURTEENTH AMENDMENT IS CONCERNED,
RESPONDENT'S AIRPLANES, WHICH ARE CHATTELS REGULARLY MOVING OVER FIXED
INTERSTATE ROUTES, ARE SUBJECT IN SOME MEASURE TO THE TAXING POWER OF
EVERY STATE IN WHICH THEY REGULARLY STOP ON THEIR INTERSTATE MISSION. 
FN1 

IN SOME INSTANCES IT MAY BE THAT VEHICLES OF TRANSPORTATION MOVING
INTERSTATE ARE SO SPORADICALLY AND IRREGULARLY PRESENT IN OTHER STATES
THAT THEY ACQUIRE NO TAX SITUS THERE, HAYS V. PACIFIC MAIL S.S. CO., 17
HOW.  596; ST. LOUIS V. FERRY CO., 11 WALL.  423; MORGAN V. PARHAM, 16
WALL.  471; AYER & LORD TIE CO. V. KENTUCKY, 202 U.S. 409, AND HENCE
REMAIN TAXABLE TO THEIR FULL VALUE BY THE STATE OF THE DOMICILE BECAUSE
THEY ARE NOT TAXABLE ELSEWHERE, N.Y. CENTRAL & H.R.R. CO. V. MILLER,
SUPRA; SOUTHERN PACIFIC CO. V. KENTUCKY, SUPRA.  BUT THAT IS NOT THE
CASE AS TO ANY OF THE PLANES HERE INVOLVED.  AND OUR DECISIONS
ESTABLISH THAT, EXCEPT IN THE CASE OF TANGIBLES WHICH HAVE NOWHERE
ACQUIRED A TAX SITUS BASED ON PHYSICAL PRESENCE, AND FOR THAT REASON
REMAIN TAXABLE AT THE DOMICILE EVEN IF NEVER PRESENT THERE, THE STATE'S
POWER TO TAX CHATTELS DEPENDS ON THEIR PHYSICAL PRESENCE AND IS NEITHER
ADDED TO NOR SUBTRACTED FROM BECAUSE THE TAXING STATE MAY OR MAY NOT
HAPPEN TO BE THE STATE OF THE OWNER'S DOMICILE. 

WE NEED NOT CONSIDER TO WHAT EXTENT THE DUE PROCESS CLAUSE LIMITS THE
TAXING POWER OF EACH STATE THROUGH WHICH AIRPLANES OR OTHER VEHICLES OF
INTERSTATE TRANSPORTATION PASS, TO THE TAXATION OF PART ONLY OF THEIR
VALUE, FAIRLY RELATED TO THEIR USE WITHIN THE STATE, OR PRECLUDED THE
MINNESOTA SUPREME COURT FROM EXTENDING TO TANGIBLE PROPERTY MOVING IN
MORE THAN ONE STATE THE RULE OF CURRY V. MCCANLESS, SUPRA, AND
SUBSEQUENT CASES, PERMITTING FULL TAXATION OF INTANGIBLES BY EACH STATE
HAVING A SUBSTANTIAL RELATIONSHIP TO THE INTEREST TAXED.  FOR WE ARE
DEALING HERE WITH TANGIBLE INSTRUMENTALITIES OF INTERSTATE COMMERCE,
ENTITLED AS SUCH TO THE PROTECTION AFFORDED BY THE COMMERCE CLAUSE FROM
UNDULY BURDENSOME STATE TAXATION, EVEN THOUGH THE TAX MIGHT OTHERWISE
BE WITHIN THE CONSTITUTIONAL POWER OF THE STATE.  AND IT IS PLAIN, AS
THIS COURT HAS OFTEN HELD, THAT IF ONE STATE MAY IMPOSE A PERSONAL
PROPERTY TAX AT FULL VALUE ON AN INTERSTATE CARRIER'S VEHICLES OF
TRANSPORTATION, AND OTHER STATES THROUGH WHICH THEY PASS MAY ALSO TAX
THEM FOR THE SAME TAX PERIOD, THE RESULTING TAX WOULD BE DESTRUCTIVE OF
THE COMMERCE BY IMPOSING ON IT A MULTIPLE TAX BURDEN TO WHICH
INTRASTATE CARRIERS ARE NOT SUBJECTED. 

THIS COURT HAS NEVER DENIED THE POWER OF THE SEVERAL STATES TO IMPOSE
A PROPERTY TAX ON VEHICLES USED IN INTERSTATE TRANSPORTATION IN THE
TAXING STATE.  IT HAS RECOGNIZED, AS WE HAVE SEEN, THAT SUCH
INSTRUMENTS OF INTERSTATE TRANSPORTATION, AT LEAST IF MOVING OVER FIXED
ROUTES ON REGULAR SCHEDULES, MAY THUS ACQUIRE A TAX SITUS IN EVERY
STATE THROUGH WHICH THEY PASS.  AND IT HAS MET THE PROBLEM OF
BURDENSOME MULTIPLE TAXATION BY THE SEVERAL STATES THROUGH WHICH SUCH
VEHICLES PASS BY RECOGNIZING THAT THE DUE PROCESS CLAUSE OR THE
COMMERCE CLAUSE OR BOTH PRECLUDE EACH STATE FROM IMPOSING ON THE
INTERSTATE COMMERCE INVOLVED AN UNDUE OR INEQUITABLE SHARE OF THE TAX
BURDEN.  IN NASHVILLE, C. & ST. L. RY. V. BROWNING, 310 U.S. 362, 365,
WE RECENTLY CONSIDERED "THE GUIDING PRINCIPLES FOR ADJUSTMENT OF THE
STATE'S RIGHT TO SECURE ITS REVENUES AND THE NATION'S DUTY TO PROTECT
INTERSTATE TRANSPORTATION."  WE DECLARED THAT "THE PROBLEM TO BE SOLVED
IS WHAT PORTION OF AN INTERSTATE ORGANISM MAY APPROPRIATELY BE
ATTRIBUTED TO EACH OF THE VARIOUS STATES IN WHICH IT FUNCTIONS."  AND,
IN SUSTAINING THE TAX, APPORTIONED ACCORDING TO MILEAGE, UPON THE
ENTIRE PROPERTY, INCLUDING ROLLING STOCK, OF AN INTERSTATE RAILROAD,
IMPOSED BY TENNESSEE, THE STATE OF THE OWNER'S DOMICILE, IN WHICH ITS
PRINCIPAL BUSINESS OFFICE AND OVER 70% OF ITS TRACKAGE WAS LOCATED, WE
SAID THAT THE STATE COULD NOT "USE A FISCAL FORMULA  ...  TO PROJECT
THE TAXING POWER OF THE STATE PLAINLY BEYOND ITS BORDERS." 

THIS COURT HAS ACCORDINGLY HELD INVALID STATE TAXATION OF VEHICLES OF
INTERSTATE TRANSPORTATION UNLESS THE TAX IS EQUITABLY APPORTIONED TO
THE USE OF THE VEHICLES WITHIN THE STATE COMPARED TO THEIR USE WITHOUT,
WHETHER THE TAX IS LAID BY THE STATE OF THE DOMICILE OR ANOTHER.  FN2
SUCH AN APPORTIONMENT HAS BEEN SUSTAINED WHEN MADE ACCORDING TO THE
MILEAGE TRAVELED WITHIN AND WITHOUT THE STATE, PULLMAN'S CAR CO. V.
PENNSYLVANIA, SUPRA, 26, OR THE AVERAGE NUMBER OF VEHICLES WITHIN THE
TAXING STATE DURING THE TAX PERIOD.  MARYE V. BALTIMORE & OHIO R. CO.,
SUPRA; AMERICAN REFRIGERATOR TRANSIT CO. V. HALL, SUPRA, 82; UNION
TRANSIT CO. V. LYNCH, SUPRA.  FN3 

BUT IF THE TAX IS LAID WITHOUT APPORTIONMENT OR IF THE APPORTIONMENT,
WHEN MADE, IS PLAINLY INEQUITABLE SO AS TO BEAR UNFAIRLY ON THE
COMMERCE BY COMPELLING THE CARRIER TO PAY TO THE TAXING STATE MORE THAN
ITS FAIR SHARE OF THE TAX MEASURED BY THE FULL VALUE OF THE PROPERTY,
THIS COURT HAS SET ASIDE THE TAX AS AN UNCONSTITUTIONAL BURDEN ON
INTERSTATE COMMERCE, WHETHER IT BE IN FORM ON THE ROLLING STOCK, UNION
TRANSIT CO. V. KENTUCKY, SUPRA; UNION TANK LINE CO. V. WRIGHT, SUPRA;
JOHNSON OIL CO. V. OKLAHOMA, SUPRA, OR ON THE CARRIER'S ENTIRE
PROPERTY, FARGO V. HART, 193 U.S. 490; OR ON A FRANCHISE OR RIGHT TO DO
BUSINESS, ALLEN V. PULLMAN'S CAR CO., 191 U.S. 171; WALLACE V. HINES,
253 U.S. 66; SOUTHERN RY. CO. V. KENTUCKY, 274 U.S. 76; CF. NORFOLK &
WESTERN R. CO. V. PENNSYLVANIA, 136 U.S. 114. 

UPON LIKE PRINCIPLES THIS COURT HAS CONSISTENTLY HELD THAT A TAX LAID
BY A STATE ON GROSS RECEIPTS FROM INTERSTATE COMMERCE, WHICH IS
COMPARABLE TO A PROPERTY TAX AT FULL VALUE ON VEHICLES OF INTERSTATE
TRANSPORTATION, VIOLATES THE COMMERCE CLAUSE UNLESS EQUITABLY
APPORTIONED.  GALVESTON, H. & S.A. RY. CO. V. TEXAS, 210 U.S. 217;
OKLAHOMA V. WELLS, FARGO & CO., 223 U.S. 298; SEE CUDAHY PACKING CO. V.
MINNESOTA, 246 U.S. 450, 453-5; PULLMAN CO. V. RICHARDSON, 261 U.S.
330, 338-9.  TO THE SAME EFFECT AS TO CAPITAL STOCK TAXES, SEE
ATCHISON, T. & S.F. RY. CO. V. O'CONNOR, 223 U.S. 280, 285 AND CASES
CITED. 

IN MANY THE TAX WAS HELD INVALID ALTHOUGH IMPOSED BY THE STATE OF THE
DOMICILE OF THE TAXPAYER.  PHILADELPHIA & SOUTHERN S.S. CO. V.
PENNSYLVANIA, 122 U.S. 326, 342, OVERRULING STATE TAX ON RAILWAY GROSS
RECEIPTS, 15 WALL.  284; CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292;
NEW JERSEY TELEPHONE CO. V. TAX BOARD, 280 U.S. 338; FISHER'S BLEND
STATION V. TAX COMMISSION, 297 U.S. 650; PUGET SOUND CO. V. TAX
COMMISSION, 302 U.S. 90; ADAMS MFG. CO. V. STOREN, 304 U.S. 307; GWIN,
WHITE & PRINCE V. HENNEFORD, 305 U.S. 434; SEE WESTERN LIVE STOCK V.
BUREAU, SUPRA.  THE SAME RULE IS APPLIED TO THE TAXATION BY THE
DOMICILE OF GOODS CARRIED INTERSTATE, CASE OF THE STATE FREIGHT TAX, 15
WALL.  232; EUREKA PIPE LINE CO. V. HALLANAN, 257 U.S. 265; AND THE
TAXATION OF GOODS IN TRANSIT GENERALLY, HUGHES BROS. CO. V. MINNESOTA,
272 U.S. 469. 

IN GALVESTON, H. & S.A. RY. CO. V. TEXAS, SUPRA, 228, IN WHICH A TAX
ON GROSS RECEIPTS OF A RAILWAY ENGAGED IN INTERSTATE COMMERCE WAS
CONDEMNED BECAUSE NOT APPORTIONED, THE COURT DECLARED, "OF COURSE, IT
DOES NOT MATTER THAT THE PLAINTIFFS IN ERROR ARE DOMESTIC
CORPORATIONS."  THE LIKE RULE, APPLIED TO THE TAXATION BY THE STATE OF
THE OWNER'S DOMICILE OF RAILROAD PROPERTY, INCLUDING ROLLING STOCK, WAS
APPROVED IN NASHVILLE, C. & ST. L. RY. V. BROWNING, SUPRA.  AND IN
BACON V. ILLINOIS, 227 U.S. 504, 511-12, THE COURT WAS AT PAINS TO
POINT OUT THAT THE POWER OF A STATE TO TAX GOODS IN TRANSIT IS NOT
AFFECTED BY THE FACT THAT IT IS OR IS NOT THE DOMICILE OF THE OWNER. 
THESE CASES CLEARLY ESTABLISH THAT, WHATEVER RELEVANCE DOMICILE MAY AT
TIMES HAVE TO THE POWER OF A STATE UNDER THE DUE PROCESS CLAUSE TO TAX
TANGIBLES, IT HAS NONE TO THE QUESTION WHETHER THE EXERCISE OF THAT
POWER SO BURDENS INTERSTATE COMMERCE AS TO VIOLATE THE COMMERCE
CLAUSE. 

IT CANNOT BE SAID EITHER IN POINT OF PRACTICALITY OR OF LEGAL THEORY
THAT ANYTHING IS ADDED TO MINNESOTA'S POWER TO TAX BY REASON OF THE
FACT THAT ALL OF PETITIONER'S AIRCRAFT ARE REGISTERED WITH THE CIVIL
AERONAUTICS AUTHORITY WITH ST. PAUL, MINNESOTA, DESIGNATED AS THEIR
"HOME PORT."  SECTION 501 OF THE CIVIL AERONAUTICS ACT, 52 STAT. 1005,
49 U.S.C. SEC. 521, REQUIRING THE REGISTRATION WITH THE AUTHORITY OF
AIRCRAFT, MERELY PROVIDES THAT A CERTIFICATE OF REGISTRATION "SHALL BE
CONCLUSIVE EVIDENCE OF NATIONALITY FOR INTERNATIONAL PURPOSES." 
NEITHER THE STATUTE NOR THE REGULATIONS ADOPTED UNDER IT ATTACH ANY
OTHER CONSEQUENCES TO THE REGISTRATION OF AIRPLANES AT A PARTICULAR
"HOME PORT."  THE MUCH MORE DETAILED PROVISIONS OF R.S. SECS. 4141,
4178 AS AMENDED, REQUIRING REGISTRATION OF VESSELS AT A PARTICULAR HOME
PORT AND THE PAINTING OF THE NAME OF THAT PORT ON THE STERN OF THE
VESSEL, HAVE BEEN HELD IRRELEVANT TO STATE POWER TO TAX, EVEN THOUGH
THE PORT OF ENROLLMENT IS ALSO ONE AT WHICH THE VESSEL REGULARLY CALLS,
ST. LOUIS V. FERRY CO., SUPRA; AYER & LORD TIE CO. V. KENTUCKY, SUPRA;
SEE SOUTHERN PACIFIC CO. V. KENTUCKY, SUPRA, 68, 73. 

NOR IS IT OF ANY SIGNIFICANCE FOR TAX PURPOSES WHETHER MINNESOTA IS
"AS A BUSINESS FACT THE HOME STATE OF THE FLEET."  WHILE THE EXISTENCE
OF A BUSINESS DOMICILE HAS BEEN THOUGHT TO AFFORD A BASIS FOR THE STATE
TAXATION OF INTANGIBLES, ON THE THEORY THAT THEY HAVE BECOME LOCALIZED
THERE, WHEELING STEEL CORP. V. FOX, SUPRA, 211 ET SEQ., THE
CONSTITUTIONAL BASES FOR THE TAXATION OF TANGIBLES AND OF INTANGIBLES
ARE, AS WE HAVE SEEN, QUITE DIFFERENT, AND UNDER OUR DECISIONS, TO
WHICH WE HAVE REFERRED, THE ONLY BASIS FOR THE TAXATION OF TANGIBLES IS
THEIR PHYSICAL PRESENCE IN THE TAXING JURISDICTION.  AND EVEN THE
TAXATION OF INTANGIBLES OF INTERSTATE CARRIERS IS SUBJECT TO THE RULE
OF APPORTIONMENT WHEREVER THE TAX WITHOUT IT WOULD SUBJECT THE COMMERCE
TO THE BURDEN OF MULTIPLE STATE TAXATION.  THE "UNIT RULE" FOR THE
TAXATION OF INTERSTATE CARRIERS APPLIES TO TANGIBLES AND INTANGIBLES
ALIKE AND REQUIRES AN EQUITABLE APPORTIONMENT OF THE TAX ON BOTH. 
ADAMS EXPRESS CO. V. OHIO, 165 U.S. 194, 222, 226; 166 U.S. 185, 223-4,
225; FARGO V. HART, SUPRA, 499; OKLAHOMA V. WELLS FARGO & CO., SUPRA,
300; WALLACE V. HINES, SUPRA, 69-70; SOUTHERN RY. CO. V. KENTUCKY,
SUPRA, 81. 

MOREOVER, THE DIFFICULTIES OF APPLYING TO AIRCRAFT A RULE OF TAXATION
AT A "HOME PORT" ARE ESSENTIALLY THOSE WHICH HAVE LED, LONG SINCE, TO
THE ABANDONMENT OF THE IDEA BY THIS COURT AS APPLIED TO VESSELS. 
COMPARE ST. LOUIS V. FERRY CO., SUPRA; AYER & LORD TIE CO. V. KENTUCKY,
SUPRA.  WHILE IT APPEARS FROM THE PRESENT RECORD THAT PETITIONER
MAINTAINS AT ST. PAUL, MINNESOTA, ITS AIRPLANE AND ENGINE OVERHAULING
BASE, AT WHICH THE PRINCIPAL REPAIRS TO PLANES AND ENGINES ARE MADE, IT
ALSO OPERATES MAINTENANCE BASES AT CHICAGO, ILLINOIS, MINNEAPOLIS,
MINNESOTA, FARGO, NORTH DAKOTA, BILLINGS, MONTANA, AND SPOKANE AND
SEATTLE, WASHINGTON, AT WHICH POINTS IT MAINTAINS CREWS OF MECHANICS
AND MAINTENANCE EQUIPMENT.  IT OWNS AND LEASES HANGARS AND OFFICE SPACE
AT ALL OF ITS STOPPING POINTS, EACH OF WHICH ARE MANNED BY ITS
EMPLOYEES.  ON THE TAX DAY, MAY 1, 1939, PETITIONER'S PLANES MADE NO
SCHEDULED STOP IN ST. PAUL.  THUS A NUMBER OF STATES HAVE A PHYSICAL
RELATIONSHIP TO PETITIONER'S BUSINESS - BY REASON OF THE MOVEMENT OF
PLANES, OVER THE FIXED ROUTES, THE LANDING OF PLANES, THE MAINTENANCE
AND OPERATION OF REPAIR AND SERVICE EQUIPMENT, LANDING FIELDS, HANGARS,
AND OFFICE BUILDINGS, WITH THEIR ATTENDANT EMPLOYEES - WHICH, FOR
PRACTICAL PURPOSES, IS AS SUBSTANTIAL IN NATURE AS THAT CLAIMED FOR
MINNESOTA. 

EVEN IF WE COULD SAY ON THIS RECORD THAT MINNESOTA AND IT ALONE CAN
BE REGARDED AS THE "HOME STATE," WE HAVE NO ASSURANCE THAT IN TAXING
PLANES OPERATED BY OTHER AND MORE COMPLEX BUSINESS ORGANIZATIONS, ONE
STATE WILL HAVE ANY GREATER CLAIM TO THAT DESIGNATION THAN SEVERAL
OTHERS, AND THE COURT'S OPINION FURNISHES NO TEST TO GUIDE IN THE
CHOICE AMONG THEM, IF CHOICE HAS ANY RELEVANCE.  NOR DOES IT SAY THAT
THE POWER TO TAX VEHICLES OF INTERSTATE TRANSPORTATION AT THE DOMICILE
OR THE "HOME PORT" IS EXCLUSIVE.  OBVIOUSLY, UNLESS IT IS DEEMED TO BE
THUS EXCLUSIVE IT DOES NOT FORECLOSE ANY STATE WITHIN WHICH THE PLANES
MOVE ON FIXED ROUTES FROM IMPOSING A LIKE TAX BURDEN.  AND IF IT IS
DEEMED TO BE EXCLUSIVE THE OTHER STATES MUST BE DENIED THEIR JUST
CLAIMS TO COLLECT AN EQUITABLE TAX ON PROPERTY REGULARLY USED WITHIN
THEM IN CARRYING ON AN INTERSTATE BUSINESS.  NORTH DAKOTA, FOR
INSTANCE, IN TAXING THE PLANES REGULARLY LANDING WITHIN ITS BORDERS, IS
NOT TAXING RIGHTS ORIGINATING IN AND SAFEGUARDED BY MINNESOTA, OR
EXERCISING ANY RIGHTS ATTRIBUTABLE TO MINNESOTA.  NO REASON APPEARS WHY
NORTH DAKOTA SHOULD BE DENIED THE RIGHT TO TAX THE PLANES TO THE EXTENT
THAT THEY ARE WITHIN ITS BORDERS, OR WHY, TO THAT EXTENT, MINNESOTA HAS
ANY RELATIONSHIP TO THEM SUFFICIENT EITHER TO ENABLE IT TO TAX THEM OR
TO PRECLUDE NORTH DAKOTA FROM TAXING THEM. 

THE TAXATION OF VEHICLES OF INTERSTATE TRANSPORTATION IN A BUSINESS
ORGANIZED AND CONDUCTED AS IS PETITIONER'S IS AS CAPABLE OF
APPORTIONMENT, AND THE INSUPPORTABLE MULTIPLE TAX BURDEN ON INTERSTATE
COMMERCE IS AS READILY AVOIDED BY APPORTIONMENT OF THE TAX, AS IN THE
CASE OF THE TAXATION OF TANGIBLE AND INTANGIBLE PROPERTY OF RAILROADS,
RAILROAD CAR SUPPLY COMPANIES, EXPRESS COMPANIES, AND THE LIKE WHICH WE
HAVE REPEATEDLY HELD TO BE SUBJECT TO THE RULE OF APPORTIONMENT.  TO
REFUSE NOW TO APPLY THE RULE OF APPORTIONMENT TO PETITIONER'S
AIRPLANES, AFTER A HALF CENTURY OF ITS APPLICATION BY THIS COURT AS THE
MEANS OF AVOIDING PROHIBITED MULTIPLE STATE TAX BURDENS ON VEHICLES OF
INTERSTATE TRANSPORTATION; TO EXTEND TO AIRPLANES MOVING INTERSTATE
OVER FIXED ROUTES ON REGULAR SCHEDULES, THE RULE THAT INTANGIBLES MAY
BE TAXED AT THE BUSINESS DOMICILE WHETHER OR NOT TAXED ELSEWHERE; AND
TO REVIVE THE ABANDONED DOCTRINE THAT VESSELS MAY BE TAXED IN FULL AT
THEIR HOME PORT, WHILE REJECTING THE CORRELATIVE RULE THAT THEY ARE
EXEMPT FROM TAXATION ELSEWHERE, IS TO DISREGARD THE TEACHINGS OF
EXPERIENCE AND OF PRECEDENT.  IT SUBJECTS A NEW AND IMPORTANT INDUSTRY
TO STATE TAX BURDENS, ESSENTIALLY DISCRIMINATORY IN THEIR EFFECT ON
INTERSTATE COMMERCE, TO WHICH OTHER INTERSTATE CARRIERS ARE NOT SUBJECT
AND WHICH IT WAS THE VERY PURPOSE OF THE COMMERCE CLAUSE TO AVOID. 

RESPONDENT PLACES ITS RELIANCE ON N.Y. CENTRAL & H.R.R. CO. V.
MILLER, SUPRA.  THERE THE COURT SUSTAINED A FRANCHISE TAX BY THE STATE
OF DOMICILE INCLUDING IN ITS MEASURE THE FULL VALUE OF FREIGHT CARS
MOVING IN AND OUT OF THE STATE, OFTEN OUT OF THE TAXPAYER'S POSSESSION
FOR AN INDEFINITE TIME, AND MOVING IN THE SERVICE OF OTHER ROADS ON
THEIR INDEPENDENT BUSINESS.  THE DECISION PROCEEDED ON THE ASSUMPTION,
NOT TENABLE HERE BUT WHICH THE FACTS OF THAT CASE WERE THOUGHT TO
SUPPORT, THAT THE CARS WERE NOT SHOWN TO HAVE MOVED SO REGULARLY OR
CONTINUOUSLY IN ANY STATE OR GROUP OF STATES OUTSIDE THE DOMICILE AS TO
GAIN A TAX SITUS THERE.  THE COURT IN DISTINGUISHING THE CASE FROM
PULLMAN'S CAR CO. V. PENNSYLVANIA, SUPRA, WHICH SUSTAINED A STATE TAX
ON A FOREIGN RAILROAD CORPORATION, MEASURED BY THE INTRASTATE MILEAGE
OF CARS PASSING IN AND OUT OF THE TAXING STATE, SAID (PP. 597-8):  "BUT
IN THAT CASE IT WAS FOUND THAT THE 'CARS USED IN THIS STATE HAVE,
DURING ALL THE TIME FOR WHICH TAX IS CHARGED, BEEN RUNNING INTO,
THROUGH AND OUT OF THE STATE.'  THE SAME CARS WERE CONTINUOUSLY
RECEIVING THE PROTECTION OF THE STATE AND, THEREFORE, IT WAS JUST THAT
THE STATE SHOULD TAX A PROPORTION OF THEM. WHETHER IF THE SAME AMOUNT
OF PROTECTION HAD BEEN RECEIVED IN RESPECT OF CONSTANTLY CHANGING CARS
THE SAME PRINCIPLE WOULD HAVE APPLIED WAS NOT DECIDED, AND IT IS NOT
NECESSARY TO DECIDE NOW.  IN THE PRESENT CASE, HOWEVER, IT DOES NOT
APPEAR THAT ANY SPECIFIC CARS OR ANY AVERAGE OF CARS WAS SO
CONTINUOUSLY IN ANY OTHER STATE AS TO BE TAXABLE THERE.  THE ABSENCES
RELIED ON WERE NOT IN THE COURSE OF TRAVEL UPON FIXED ROUTES BUT RANDOM
EXCURSIONS OF CASUALLY CHOSEN CARS, DETERMINED BY THE VARYING ORDERS OF
PARTICULAR SHIPPERS AND THE ARBITRARY CONVENIENCE OF OTHER ROADS. 
THEREFORE WE NEED NOT CONSIDER EITHER WHETHER THERE IS ANY NECESSARY
PARALLELISM BETWEEN LIABILITY ELSEWHERE AND IMMUNITY AT HOME."    THE
PRESENT CASE RAISES THE QUESTION WHICH THE MILLER CASE FOUND IT
UNNECESSARY TO DECIDE BUT WHICH THIS COURT HAS CONSISTENTLY ANSWERED BY
REQUIRING THE APPORTIONMENT OF A TAX ON VEHICLES OF INTERSTATE
TRANSPORTATION ACCORDING TO THEIR REGULAR USE WITHIN AND WITHOUT THE
TAXING STATE.  IN THE MILLER CASE IT APPEARED THAT THE CARS MOVED NOT
ONLY OVER THE CARRIER'S OWN TRACKS, BUT ALSO WERE INTERCHANGED WITH
OTHER RAILROADS, AND THUS, AS THE COURT POINTED OUT, MOVED ABOUT ALMOST
AT RANDOM THROUGHOUT THE UNITED STATES.  NO EVIDENCE WAS OFFERED
TENDING TO SHOW IN WHAT STATES THE CARS MOVED, OR WITH WHAT DEGREE OF
REGULARITY THEY WERE PRESENT IN ANY PARTICULAR STATE OR GROUP OF STATES
OTHER THAN NEW YORK.  THE COURT WAS THUS NOT CALLED UPON TO CONSIDER
WHETHER NEW YORK COULD TAX THE CARS IF THEY MOVED BETWEEN NEW YORK AND
OTHER NAMED STATES WITH SUCH REGULARITY THAT AN "AVERAGE OF CARS" COULD
BE SAID TO BE CONTINUOUSLY SO MOVING IN THOSE OTHER STATES.  HERE, ON
THE OTHER HAND, IT IS STIPULATED AND FOUND THAT ALL OF PETITIONER'S
PLANES ARE "CONTINUOUSLY ENGAGED IN FLYING FROM STATE TO STATE IN THE
COURSE OF (PETITIONER'S) OPERATIONS" AND THAT THOSE OPERATIONS ARE ON
REGULAR SCHEDULES ALONG FIXED ROUTES THROUGH EIGHT STATES.  THE TOTAL
MILEAGE OF REGULAR ROUTES AND THE TOTAL DAILY MILEAGE ON THOSE ROUTES
BOTH IN MINNESOTA AND OUTSIDE ARE DEFINITELY STIPULATED AND FOUND. 
HENCE THERE IS NO WARRANT FOR SAYING THAT THEIR PRESENCE IN EACH OF THE
STATES THROUGH WHICH THEY PASS IS NOT AS REGULAR AND CONTINUOUS IN
NATURE AS IT IS IN MINNESOTA.  THESE FINDINGS ESTABLISH THAT, WHILE NO
PARTICULAR PLANE IS PERMANENTLY WITHIN ANY STATE, ITS PLANES ARE
CONTINUOUSLY FLYING IN, AND AN AVERAGE NUMBER OR A PERCENTAGE OF THE
TOTAL IS REGULARLY, I.E., "PERMANENTLY" WITHIN, EACH OF THE STATES
THROUGH WHICH THEY PASS.  HERE, AS WAS THE CASE IN PULLMAN'S CAR CO. V.
PENNSYLVANIA, SUPRA, THE SAME PLANES ARE "RUNNING INTO, THROUGH, AND
OUT OF" EACH OF THE STATES ALONG PETITIONER'S ROUTES AND AN "AVERAGE"
OF PLANES IS CONTINUOUSLY WITHIN EACH OF THOSE STATES.  FN4 

WE ARE NOT NOW CONCERNED WITH THE PROPER APPORTIONMENT OF TAXABLE
VALUES AMONG THE STATES OUTSIDE THE STATE OF MINNESOTA.  SINCE THE
MOVEMENT OF THE PLANES, WHEREVER THEY GO, IS OVER FIXED ROUTES AND ON
REGULAR SCHEDULES, THEY ACQUIRE A TAX SITUS OUTSIDE MINNESOTA TO THE
EXTENT THAT THEY DO NOT MOVE WITHIN IT.  HENCE THE EXTENT TO WHICH THEY
MOVE IN AND ARE TAXABLE BY ONE STATE OUTSIDE MINNESOTA RATHER THAN
ANOTHER IS IRRELEVANT.  IT IS ENOUGH THAT THE MINNESOTA TAX IS FOR FULL
VALUE AND THAT MINNESOTA'S FISCAL FORMULA IMPOSES A PROHIBITED BURDEN
ON INTERSTATE COMMERCE BECAUSE IT IS USED "TO PROJECT THE TAX POWER OF
THE STATE PLAINLY BEYOND ITS BORDERS," TO REACH INSTRUMENTS OF
INTERSTATE COMMERCE WHICH ARE TAXABLE ELSEWHERE, AND THAT THE EXTENT OF
THAT PROJECTION MAY BE MEASURED BY COMPARING EITHER THE PLANE OR THE
ROUTE MILEAGE OVER FIXED ROUTES IN MINNESOTA WITH LIKE MILEAGE OVER
FIXED ROUTES IN THE STATES OUTSIDE MINNESOTA. 

BOTH BEFORE AND SINCE THE MILLER CASE THIS COURT HAS RULED THAT
VEHICLES OF INTERSTATE TRANSPORTATION REGULARLY MOVING TO AND FROM THE
STATE OF DOMICILE FROM AND TO OTHER STATES ACQUIRE A TAX SITUS IN THE
LATTER, AND THAT THE STATE OF DOMICILE CANNOT CONSTITUTIONALLY LEVY ON
THEM AN UNAPPORTIONED PROPERTY TAX.  UNION TRANSIT CO. V. KENTUCKY,
SUPRA; JOHNSON OIL CO. V. OKLAHOMA, SUPRA; NASHVILLE, C. & ST. L. RY.
V. BROWNING, SUPRA.  IN JOHNSON OIL CO. V. OKLAHOMA, SUPRA, 161-2,
WHERE THE CARS MOVED FROM AND TO OKLAHOMA TO AND FROM VARIOUS STATES
INCLUDING ILLINOIS, THE STATE OF DOMICILE, WE DECLARED THAT THE CARS
HAD ACQUIRED A TAX SITUS OUTSIDE ILLINOIS AND WERE TO THAT EXTENT NOT
TAXABLE BY ILLINOIS.  THE COURT RESTED ITS DECISION ON THE RULE, STATED
WITHOUT QUALIFICATION, THAT "WHEN A FLEET OF CARS IS HABITUALLY
EMPLOYED IN SEVERAL STATES - THE INDIVIDUAL CARS CONSTANTLY RUNNING IN
AND OUT OF EACH STATE - IT CANNOT BE SAID THAT ANY ONE OF THE STATES IS
ENTITLED TO TAX THE ENTIRE NUMBER OF CARS REGARDLESS OF THEIR USE IN
OTHER STATES."  FN5 THOSE CASES SHOULD CONTROL NOW.  FOR HERE WE ARE
CONFRONTED WITH A SCHEME OF TAXATION IMPOSED ON VEHICLES OF INTERSTATE
TRANSPORTATION LOCATED WITHIN THE TAXING STATE FOR ONLY A LIMITED AND
SPECIFIED PART OF THEIR ACTIVE LIFE.  FOR THE REST, THEY ARE IN OTHER
STATES, MOVING OVER FIXED ROUTES OF TRAVEL WHERE, UNDER OUR DECISIONS,
THEY PLAINLY HAVE A TAX SITUS, AND WHERE THEY ARE IN FACT TAXED IN SIX
OF THE SEVEN STATES OTHER THAN MINNESOTA THROUGH WHICH THEY PASS. 

THE TAX NOW SUSTAINED IS SO OBVIOUSLY DISPROPORTIONATE TO THE
PROTECTION AFFORDED TO THE TAXED PROPERTY BY THE TAXING STATE AS TO
PLACE A CONSTITUTIONALLY INTOLERABLE BURDEN ON INTERSTATE COMMERCE. 
BUT IT IS A BURDEN WHICH IS CAPABLE OF EQUITABLE ADJUSTMENT WHICH WOULD
SATISFY CONSTITUTIONAL REQUIREMENTS BY THE APPLICATION OF THE
PRINCIPLES OF APPORTIONMENT WHICH THIS COURT HAS REPEATEDLY SANCTIONED,
AND WHICH IT IS THE CONSTITUTIONAL DUTY OF THE STATE OF MINNESOTA TO
APPLY.  THE APPLICATION OF THESE PRINCIPLES DOES NOT CALL FOR
MATHEMATICAL EXACTNESS NOR FOR THE RIGID APPLICATION OF A PARTICULAR
FORMULA; ONLY IF THE RESULTING VALUATION IS PALPABLY EXCESSIVE WILL IT
BE SET ASIDE.  BUT A REASONABLE ATTEMPT MUST BE MADE TO TAX ONLY SO
MUCH OF THE VALUE AS IS FAIRLY RELATED TO USE WITHIN THE TAXING STATE. 
UNION TANK LINE CO. V. WRIGHT, SUPRA, 282; GREAT NORTHERN RY. V. WEEKS,
SUPRA, 144; NASHVILLE, C. & ST. L. RY. V. BROWNING, SUPRA, 365. 

IT IS NO ANSWER TO SUGGEST THAT THE STATES OTHER THAN MINNESOTA HAVE
NOT ASSERTED THEIR CONSTITUTIONAL POWER TO TAX OR THAT WE DO NOT KNOW
HOW OR TO WHAT EXTENT THEY HAVE EXERCISED IT. THE EXTENT TO WHICH ONE
STATE MAY CONSTITUTIONALLY TAX THE INSTRUMENTS OF INTERSTATE
TRANSPORTATION DOES NOT DEPEND ON WHAT OTHER STATES MAY HAPPEN TO DO,
BUT ON WHAT THE TAXING STATE HAS CONSTITUTIONAL POWER TO DO.  THE
JURISDICTION OF MINNESOTA TO TAX "MUST BE DETERMINED ON A BASIS WHICH
IS CONSISTENT WITH THE LIKE JURISDICTION OF OTHER STATES."  JOHNSON OIL
CO. V. OKLAHOMA, SUPRA, 162.  MINNESOTA CANNOT JUSTIFY ITS IMPOSITION
OF AN UNDUE PROPORTION OF THE TOTAL TAX BURDEN WHICH CAN BE IMPOSED ON
AN INTERSTATE CARRIER BY SAYING THAT OTHER STATES HAVE TAKEN OR MAY
TAKE LESS THAN THEIR SHARE OF THE TAX.  IT IS ENOUGH THAT THE TAX
EXPOSES PETITIONER TO "THE RISK OF A MULTIPLE BURDEN TO WHICH LOCAL
COMMERCE IS NOT EXPOSED," ADAMS MFG. CO. V. STOREN, SUPRA, 311; GWIN,
WHITE & PRINCE V. HENNEFORD, SUPRA, 439, AND CASES CITED.  TO HOLD
OTHERWISE WOULD BE TO MEASURE MINNESOTA'S POWER TO TAX, NOT BY
CONSTITUTIONAL STANDARDS, BUT BY THE ACTION OF OTHER STATES OVER WHICH
NEITHER MINNESOTA NOR PETITIONER HAS ANY CONTROL AND TO LEAVE
PETITIONER'S TAX TO BE MEASURED FROM YEAR TO YEAR, NOT ACCORDING TO ANY
LEGAL STANDARD, BUT BY THE UNPREDICTABLE UNCONTROLLED ACTION OF OTHER
STATES. 

THE JUDGMENT SHOULD BE REVERSED AND THE CASE REMANDED FOR FURTHER
PROCEEDINGS IN THE COURSE OF WHICH THE STATE COURT WOULD BE FREE, IF SO
ADVISED, TO INQUIRE TO WHAT EXTENT, IF AT ALL, THE TAX MAY, IN HARMONY
WITH STATE LAW, BE APPORTIONED IN CONFORMITY TO PRINCIPLES HERETOFORE
ANNOUNCED BY THIS COURT, AND TO THAT EXTENT SUSTAINED. 

FN1  WE NEED NOT CONSIDER HERE WHETHER THE JURISDICTION OF A STATE
OVER AIR ABOVE IT - AS DISTINGUISHED FROM THE CONTROL OF A PRIVATE
LANDOWNER OVER AIR ABOVE HIS LAND - AFFORDS A BASIS FOR TAXATION OF
PLANES WHICH REGULARLY FLY OVER THE STATE BUT DO NOT REGULARLY LAND
WITHIN ITS BORDERS.  FOR IN SIX OF THE SEVEN STATES, OTHER THAN
MINNESOTA, OVER WHICH PETITIONER'S AIRPLANES REGULARLY FLY, THEY ALSO
MAKE REGULAR SCHEDULED LANDINGS.  PLAINLY THOSE STATES HAVE
JURISDICTION TO TAX A PROPORTIONATE PART OF THEIR VALUE AND TO THAT
EXTENT THE JUDGMENT OF THE MINNESOTA SUPREME COURT, PERMITTING TAXATION
IN FULL BY THE DOMICILE, IS ERRONEOUS, AND THE CAUSE SHOULD BE REMANDED
FOR FURTHER PROCEEDINGS. 

FN2  THE RULE, GENERALLY APPLIED, THAT VESSELS ARE TAXABLE ONLY BY
THE DOMICILE, HAYS V. PACIFIC MAIL S.S. CO., 17 HOW.  596, 597; ST.
LOUIS V. FERRY CO., 11 WALL.  423, 430, 431-2; MORGAN V. PARHAM, 16
WALL.  471, 475; TRANSPORTATION CO. V. WHEELING, 99 U.S. 273, 279-80;
AYER & LORD TIE CO. V. KENTUCKY, 202 U.S. 409, 421; SOUTHERN PACIFIC
CO. V. KENTUCKY, 222 U.S. 63, 68, 69, 77, IS NO EXCEPTION TO THESE
RULES.  FOR VESSELS ORDINARILY MOVE ON THE HIGH SEAS, OUTSIDE THE
JURISDICTION OF ANY STATE, AND MERELY TOUCH BRIEFLY AT PORTS WITHIN A
STATE.  HENCE THEY ACQUIRE NO TAX SITUS IN ANY OF THE STATES AT WHICH
THEY TOUCH PORT, AND ARE TAXABLE BY THE DOMICILE OR NOT AT ALL.  SEE
PULLMAN'S CAR CO. V. PENNSYLVANIA, 141 U.S. 18, 23; SOUTHERN PACIFIC
CO. V. KENTUCKY, SUPRA, 75.  THE SUGGESTION IN THE EARLIER CASES, SEE
HAYS V. PACIFIC MAIL S.S. CO., SUPRA, 600; ST. LOUIS V. FERRY CO.,
SUPRA; MORGAN V. PARHAM, SUPRA, THAT VESSELS WERE TO BE TAXED
EXCLUSIVELY AT THE HOME PORT, WHETHER OR NOT IT WAS THE DOMICILE, WAS
REJECTED IN AYER & LORD TIE CO. V. KENTUCKY, SUPRA, AND SOUTHERN
PACIFIC CO. V. KENTUCKY, SUPRA, AND HAS NEVER BEEN REVIVED.  BUT WHERE
THE VESSELS OPERATE WHOLLY ON WATERS WITHIN ONE STATE, THEY HAVE BEEN
HELD TO BE TAXABLE THERE, OLD DOMINION S.S. CO. V. VIRGINIA, 198 U.S.
299, AND NOT AT THE DOMICILE, SOUTHERN PACIFIC CO. V. KENTUCKY, SUPRA,
67, 72, A RESULT WHICH, LIKE THE RULE OF APPORTIONMENT IN TAXING
RAILROAD CARS, AVOIDS THE BURDEN OF MULTIPLE TAXATION. 

FN3  SIMILARLY TAXES BY THE STATE OF DOMICILE OR OTHER STATES ON THE
CARRIER'S ENTIRE PROPERTY INCLUDING ROLLING STOCK HAVE BEEN SUSTAINED
IF APPORTIONED ACCORDING TO MILEAGE, PITTSBURGH, C., C. & ST. L. RY.
CO. V. BACKUS, 154 U.S. 421; ADAMS EXPRESS CO. V. OHIO, 165 U.S. 194,
166 U.S. 185; AMERICAN EXPRESS CO. V. INDIANA, 165 U.S. 255; ADAMS
EXPRESS CO. V. KENTUCKY, 166 U.S. 171; WELLS, FARGO & CO. V. NEVADA,
248 U.S. 165; ST. LOUIS & E. ST. L. RY. CO. V. HAGERMAN, 256 U.S. 314;
SOUTHERN RY. CO. V. WATTS, 260 U.S. 519; NASHVILLE, C. & ST. L. RY. V.
BROWNING, 310 U.S. 362, OR A COMBINATION OF RELEVANT FACTORS, ROWLEY V.
CHICAGO & N.W. RY. CO., 293 U.S. 102; GREAT NORTHERN RY. CO. V. WEEKS,
297 U.S. 135.  LIKEWISE GROSS RECEIPTS TAXES, IF PROPERLY APPORTIONED
OR OTHERWISE LIMITED TO RECEIPTS FROM BUSINESS DONE WITHIN THE STATE,
HAVE BEEN UPHELD, ERIE RY. CO. V. PENNSYLVANIA, 21 WALL.  492; MAINE V.
GRAND TRUNK RY. CO., 142 U.S. 217, AS EXPLAINED IN GALVESTON, H. & S.A.
RY. CO. V. TEXAS, 210 U.S. 217, 226; UNITED STATES EXPRESS CO. V.
MINNESOTA, 223 U.S. 335; CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450;
PULLMAN CO. V. RICHARDSON, 261 U.S. 330; CF. NEW YORK, L.E. & W.R. CO.
V. PENNSYLVANIA, 158 U.S. 431. 

FN4  IT IS TRUE THAT HERE THERE IS NO EVIDENCE OF THE AVERAGE NUMBER
OF PLANES PRESENT WITHIN MINNESOTA OR ANY OTHER STATE DURING THE TAX
YEAR.  BUT WHERE THE MOVEMENT THROUGH THE STATE IS REGULAR AND
CONTINUOUS, AS IT IS HERE AND WAS NOT IN THE MILLER CASE, APPORTIONMENT
MAY BE MADE BY SHOWING THE PLANE MILEAGE OR ROUTE MILEAGE WITHIN AND
WITHOUT THE STATE.  PULLMAN'S CAR CO. V. PENNSYLVANIA, 141 U.S. 18;
NASHVILLE, C. & ST. L. RY. V. BROWNING, 310 U.S. 362, AND CASES CITED. 
THE MINNESOTA COURT HERE DID NOT REST ITS DECISION ON THE GROUND THAT
PETITIONER HAD SOUGHT TO APPORTION BY MILEAGE INSTEAD OF BY AVERAGE
NUMBER OF CARS, AND HAD INTRODUCED NO EVIDENCE TO SUPPORT THE LATTER
TYPE OF APPORTIONMENT.  IF IT HAD IT MIGHT WELL HAVE REMANDED THE CAUSE
TO PERMIT ANY DEFICIENCIES OF PROOF TO BE REMEDIED.  IT HELD RATHER
THAT REGARDLESS OF THE NATURE OF PROOF OF APPORTIONMENT MINNESOTA, AS
THE STATE OF THE DOMICILE, COULD TAX THE CARS FOR THEIR ENTIRE VALUE. 

IN THIS RESPECT ALSO THE CASE IS UNLIKE THE MILLER CASE.  THERE, AS
THE RECORD REVEALS, THE CARRIER'S EVIDENCE SHOWED ONLY THE CAR MILEAGE
WITHIN AND WITHOUT THE STATE, AND ITS OWNED TRACK MILEAGE WITHIN AND
WITHOUT THE STATE.  BUT SINCE THE CARS MOVED OVER IRREGULAR ROUTES
WITHOUT FIXED SCHEDULES, CAR MILEAGE AFFORDED NO BASIS OF
APPORTIONMENT, WITHOUT PROOF ALSO THAT THE CARS WERE PRESENT IN
PARTICULAR STATES WITH SUFFICIENT REGULARITY TO ACQUIRE A TAX SITUS
THERE.  OWNED TRACK MILEAGE LIKEWISE FAILED TO AFFORD A BASIS OF
APPORTIONMENT, IN THE ABSENCE OF SOME PROOF THAT THE TRACKS WERE
REGULARLY USED BY THE CARS IN QUESTION.  NOR DID THE CARRIER LACK
OPPORTUNITY TO MAKE FULLER PROOF.  THE CAUSE AS IT CAME HERE INVOLVED
FIVE SUCCESSIVE TAX YEARS, AS TO EACH OF WHICH THE CARRIER WAS AFFORDED
A HEARING WITH OPPORTUNITY TO INTRODUCE EVIDENCE.  THE CARRIER HAVING
FAILED DESPITE THIS REPEATED OPPORTUNITY TO INTRODUCE EVIDENCE WHICH
WOULD, ON ANY THEORY OF APPORTIONMENT, SUPPORT A CONCLUSION THAT ANY
PARTICULAR PROPORTION OF CARS HAD ACQUIRED A TAX SITUS ELSEWHERE, THIS
COURT, AS IT POINTED OUT, WAS NOT CALLED UPON TO APPLY THE RULE OF
PULLMAN'S CAR CO. V. PENNSYLVANIA, SUPRA, OR TO CONSIDER WHETHER,
CONSISTENTLY WITH THE COMMERCE CLAUSE, PROPERTY USED AS AN
INSTRUMENTALITY OF COMMERCE MAY BE SUBJECTED TO THE RISK OF DOUBLE
TAXATION. 

FN5  IN UNION TRANSIT CO. V. KENTUCKY, 199 U.S. 194, IT APPEARED THAT
THE CARS OF THE TRANSIT COMPANY, THE TAXPAYER, MOVED IN AND OUT OF
KENTUCKY, THE STATE OF DOMICILE.  THE TRANSIT COMPANY DISCLAIMED ON THE
RECORD ANY EFFORT TO PROVE THAT IT HAD ANY CARS WHICH NEVER CAME WITHIN
THE STATE, AND SOUGHT TO ESTABLISH THE NUMBER "PERMANENTLY LOCATED"
OUTSIDE IT ONLY BY PROOF OF GROSS EARNINGS WITHIN AND WITHOUT THE
STATE.  IN HOLDING THAT THE STATE OF DOMICILE COULD NOT TAX TANGIBLE
PERSONAL PROPERTY "PERMANENTLY LOCATED IN OTHER STATES" (P. 201), IT IS
CLEAR THAT THE COURT WAS LIMITING THE TAXING POWER OF THE STATE OF
DOMICILE TO THE EXTENT THAT THE CARS MOVING BETWEEN KENTUCKY AND OTHER
STATES HAD, UNDER THE RULE OF APPORTIONMENT, GAINED A TAX SITUS OUTSIDE
THE STATE BECAUSE THEY WERE "LOCATED AND EMPLOYED" THERE (P. 211). 
THIS IS EVIDENT FROM ITS CITATION (P. 206) OF PULLMAN'S CAR CO. V.
PENNSLYVANIA, 141 U.S. 18, AND AMERICAN REFRIGERATOR TRANSIT CO. V.
HALL, 174 U.S. 70, AS CASES INVOLVING PROPERTY "PERMANENTLY LOCATED" IN
THE TAXING STATES.  BOTH CASES INVOLVED ROLLING STOCK CONTINUOUSLY
MOVING INTO AND OUT OF THE TAXING STATE AND SUSTAINED TAXES UPON A
PROPORTION OF THE CARRIER'S TOTAL ROLLING STOCK BASED RESPECTIVELY UPON
THE TRACK MILEAGE OR UPON THE AVERAGE NUMBER OF CARS USED WITHIN THE
TAXING STATE.  HAD THE COURT INTENDED TO EXEMPT, FROM THE DOMICILE'S
POWER TO TAX, ONLY PROPERTY WHICH NEVER CAME INTO THE DOMICILE IT WOULD
HAVE BEEN ENCESSARY FOR IT TO DISCUSS ALSO THE CONTENTION THAT THE
UNION TRANSIT COMPANY HAD BEEN DENIED THE EQUAL PROTECTION OF THE LAWS
BECAUSE RAILROADS WERE TAXED ONLY UPON THE VALUE OF THEIR ROLLING STOCK
USED WITHIN THE STATE DETERMINED BY THE PROPORTIONATE MILEAGE WITHIN
THE STATE (PP. 202, 211). 

MR. JUSTICE ROBERTS, MR. JUSTICE REED, AND MR. JUSTICE RUTLEDGE JOIN
IN THIS DISSENT. 
..END :



MCLEOD V. DILWORTH CO., 322 U.S. 327 


NO. 311.  ARGUED FEBRUARY 4, 1944.  - DECIDED MAY 15, 1944.  - 205 ARK.
780, 171 S.W.2D 62, AFFIRMED. 


A TENNESSEE CORPORATION WHICH WAS NOT QUALIFIED TO DO BUSINESS IN
ARKANSAS, AND WHICH HAD NO SALES OFFICE NOR ANY OTHER PLACE OF BUSINESS
IN ARKANSAS, MADE SALES OF GOODS IN TENNESSEE FOR DELIVERY BY COMMON
CARRIER IN ARKANSAS.  THOUGH SOME ORDERS WERE SOLICITED IN ARKANSAS BY
TRAVELING SALESMEN DOMICILED IN TENNESSEE, ALL ORDERS WERE TAKEN
SUBJECT TO ACCEPTANCE BY THE CORPORATION IN TENNESSEE; TITLE TO THE
GOODS PASSED UPON DELIVERY TO THE CARRIER IN TENNESSEE; AND NO
COLLECTIONS WERE MADE IN ARKANSAS.  HELD THAT THE IMPOSITION BY
ARKANSAS OF A TAX ON SUCH TRANSACTIONS, UNDER A STATUTE CONSTRUED BY
THE STATE COURT AS LEVYING A SALES TAX AND NOT A USE TAX (WHICH
CONSTRUCTION IS ACCEPTED HERE), VIOLATED THE COMMERCE CLAUSE OF THE
FEDERAL CONSTITUTION.  MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33,
AND WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, DISTINGUISHED.  PP.
328, 330. 

MCLEOD, COMMISSIONER OF REVENUES, V. J.E. DILWORTH CO. ET AL. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

CERTIORARI, 320 U.S. 728, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT IN TWO SUITS (CONSOLIDATED FOR TRIAL) TO
ENFORCE A STATE TAX. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO REVERSE A DECISION OF THE SUPREME COURT OF ARKANSAS
HOLDING THAT THE COMMERCE CLAUSE PRECLUDES LIABILITY FOR THE SALES TAX
OF THAT STATE UPON THE TRANSACTIONS TO BE SET FORTH. 

WE TAKE THE DESCRIPTIONS OF THESE TRANSACTIONS FROM THE OPINION UNDER
REVIEW.  RESPONDENTS ARE TENNESSEE CORPORATIONS WITH HOME OFFICES AND
PLACES OF BUSINESS IN MEMPHIS WHERE THEY SELL MACHINERY AND MILL
SUPPLIES.  THEY ARE NOT QUALIFIED TO DO BUSINESS IN ARKANSAS AND HAVE
NEITHER SALES OFFICE, BRANCH PLANT NOR ANY OTHER PLACE OF BUSINESS IN
THAT STATE.  ORDERS FOR GOODS COME TO TENNESSEE THROUGH SOLICITATION IN
ARKANSAS BY TRAVELING SALESMEN DOMICILED IN TENNESSEE, BY MAIL OR
TELEPHONE.  BUT NO MATTER HOW AN ORDER IS PLACED IT REQUIRES ACCEPTANCE
BY THE MEMPHIS OFFICE, AND ON APPROVAL THE GOODS ARE SHIPPED FROM
TENNESSEE.  TITLE PASSES UPON DELIVERY TO THE CARRIER IN MEMPHIS, AND
COLLECTION OF THE SALES PRICE IS NOT MADE IN ARKANSAS.  IN SHORT, WE
ARE HERE CONCERNED WITH SALES MADE BY TENNESSEE VENDORS THAT ARE
CONSUMMATED IN TENNESSEE FOR THE DELIVERY OF GOODS IN ARKANSAS. 

FOR SUCH SALES, THE SUPREME COURT OF ARKANSAS HAD HELD, IN 1939, THE
STATE HAD NO POWER TO EXACT A SALES TAX, MANN V. MCCARROLL, 198 ARK.
628, 130 S.W.2D 721.  THE ARKANSAS LEGISLATION THEN IN FORCE WAS ACT
154 OF 1937.  THE TRANSACTIONS ON WHICH THE COLLECTOR HERE SEEKS TO TAX
EXTENDED OVER PERIODS THAT BRING INTO QUESTION ACT 154(EXTENDED BY ACT
364 OF 1939) AND A NEW STATUTE (ACT 386 OF 1941), KNOWN AS THE GROSS
RECEIPTS ACT.  THE ARKANSAS SUPREME COURT GAVE THE ACT OF 1941 THE SAME
SCOPE AND SIGNIFICANCE AS IT ATTRIBUTED TO THE ACT OF 1937, THAT IS, AN
ACT IMPOSING A RETAIL SALES TAX AND NOT A USE TAX.  IN VIEW OF THIS
CONSTRUCTION, IT HAS ADHERED TO ITS EARLIER DECISION IN MANN V.
MCCARROLL, FINDING NOTHING IN OUR INTERVENING DECISION IN MCGOLDRICK V.
BERWIND-WHITE CO., 309 U.S. 33, REQUIRING A CHANGE IN ITS
CONSTITUTIONAL VIEWS.  205 ARK. 780, 171 S.W.2D 62.  TO PERMIT FURTHER
EXAMINATION OF THE COMPLICATED PROBLEMS RAISED BY THE INTERPLAY OF
FEDERAL AND STATE POWERS WE BROUGHT THE CASE HERE.  320 U.S. 728. 

WE AGREE WITH THE ARKANSAS SUPREME COURT THAT THE BERWIND-WHITE CASE
PRESENTED A SITUATION DIFFERENT FROM THIS CASE AND THAT THIS CASE IS ON
THE OTHER SIDE OF THE LINE WHICH MARKS OFF THE LIMITS OF STATE POWER. 
A BOUNDARY LINE IS NONE THE WORSE FOR BEING NARROW.  ONCE IT IS
RECOGNIZED, AS IT LONG HAS BEEN BY THIS COURT, THAT FEDERAL AND STATE
TAXATION DO NOT MOVE WITHIN WHOLLY DIFFERENT ORBITS, THAT THERE ARE
POINTS OF INTERSECTION BETWEEN THE POWERS OF THE TWO GOVERNMENTS, AND
THAT THERE ARE TRANSACTIONS OF WHAT COLLOQUIALLY MAY BE DEEMED A SINGLE
PROCESS ACROSS STATE LINES WHICH MAY YET BE TAXED BY THE STATE OF THEIR
OCCURRENCE, "NICE DISTINCTIONS ARE TO BE EXPECTED," GALVESTON, H. &
S.A. RY. CO. V. TEXAS, 210 U.S. 217, 225.  THE DIFFERENTIATIONS MADE BY
THE COURT BELOW BETWEEN THIS CASE AND THE BERWIND-WHITE CASE ARE
RELEVANT AND CONTROLLING.  "THE DISTINGUISHING POINT BETWEEN THE
BERWIND-WHITE COAL CASE AND THE CASES AT BAR IS THAT IN THE BERWIND
WHITE COAL CASE THE CORPORATION MAINTAINED ITS SALES OFFICE IN NEW YORK
CITY, TOOK ITS CONTRACTS IN NEW YORK CITY AND MADE ACTUAL DELIVERY IN
NEW YORK CITY.  ...  " 205 ARK. AT 786.  THIS, ACCORDING TO PRACTICAL
NOTIONS OF WHAT CONSTITUTES A SALE WHICH IS REFLECTED BY WHAT THE LAW
DEEMS A SALE, CONSTITUTED A SALE IN NEW YORK AND ACCORDINGLY WE
SUSTAINED A RETAIL SALES TAX BY NEW YORK.  HERE, AS THE ARKANSAS
SUPREME COURT CONTINUED, "THE OFFICES ARE MAINTAINED IN TENNESSEE, THE
SALE IS MADE IN TENNESSEE, AND THE DELIVERY IS CONSUMMATED EITHER IN
TENNESSEE OR IN INTERSTATE COMMERCE WITH NO INTERRUPTION FROM TENNESSEE
UNTIL DELIVERY TO THE CONSIGNEE ESSENTIAL TO COMPLETE THE INTERSTATE
JOURNEY."  BECAUSE THE RELEVANT FACTORS IN THE TWO CASES DECIDED
TOGETHER WITH THE BERWIND-WHITE CASE WERE THE SAME AS THOSE IN BERWIND
WHITE, THE DECISION IN THAT CASE CONTROLLED THE TWO OTHER CASES.  "IN
BOTH CASES THE TAX WAS IMPOSED ON ALL THE SALES OF MERCHANDISE FOR
WHICH ORDERS WERE TAKEN WITHIN THE CITY AND POSSESSION OF WHICH WAS
TRANSFERRED TO THE PURCHASER THERE.  DECISION IN BOTH IS CONTROLLED BY
OUR DECISION IN THE BERWIND-WHITE COMPANY CASE."  MCGOLDRICK V. FELT &
TARRANT CO., 309 U.S. 70, 77.  IN BERWIND-WHITE THE PENNSYLVANIA SELLER
COMPLETED HIS SALES IN NEW YORK; IN THIS CASE THE TENNESSEE SELLER WAS
THROUGH SELLING IN TENNESSEE.  WE WOULD HAVE TO DESTROY BOTH BUSINESS
AND LEGAL NOTIONS TO DENY THAT UNDER THESE CIRCUMSTANCES THE SALE - THE
TRANSFER OF OWNERSHIP - WAS MADE IN TENNESSEE.  FOR ARKANSAS TO IMPOSE
A TAX ON SUCH TRANSACTION WOULD BE TO PROJECT ITS POWERS BEYOND ITS
BOUNDARIES AND TO TAX AN INTERSTATE TRANSACTION. 

IT IS SUGGESTED, HOWEVER, THAT ARKANSAS COULD HAVE LEVIED A TAX OF
THE SAME AMOUNT ON THE USE OF THESE GOODS IN ARKANSAS BY THE ARKANSAS
BUYERS, AND THAT SUCH A USE TAX WOULD NOT EXCEED THE LIMITS UPON STATE
POWER DERIVED FROM THE UNITED STATES CONSTITUTION.  WHATEVER MIGHT BE
THE FATE OF SUCH A TAX WERE IT BEFORE US, THE NOT TOO SHORT ANSWER IS
THAT ARKANSAS HAS CHOSEN NOT TO IMPOSE SUCH A USE TAX, AS ITS SUPREME
COURT SO EMPHATICALLY FOUND.  A SALES TAX AND A USE TAX IN MANY
INSTANCES MAY BRING ABOUT THE SAME RESULT.  BUT THEY ARE DIFFERENT IN
CONCEPTION, ARE ASSESSMENTS UPON DIFFERENT TRANSACTIONS, AND IN THE
INTERLACINGS OF THE TWO LEGISLATIVE AUTHORITIES WITHIN OUR FEDERATION
MAY HAVE TO JUSTIFY THEMSELVES ON DIFFERENT CONSTITUTIONAL GROUNDS.  A
SALES TAX IS A TAX ON THE FREEDOM OF PURCHASE - A FREEDOM WHICH WARTIME
RESTRICTIONS SERVE TO EMPHASIZE.  A USE TAX IS A TAX ON THE ENJOYMENT
OF THAT WHICH WAS PURCHASED.  IN VIEW OF THE DIFFERENCES IN THE BASIS
OF THESE TWO TAXES AND THE DIFFERENCES IN THE RELATION OF THE TAXING
STATE TO THEM, A TAX ON AN INTERSTATE SALE LIKE THE ONE BEFORE US AND
UNLIKE THE TAX ON THE ENJOYMENT OF THE GOODS SOLD, INVOLVES AN
ASSUMPTION OF POWER BY A STATE WHICH THE COMMERCE CLAUSE WAS MEANT TO
END.  THE VERY PURPOSE OF THE COMMERCE CLAUSE WAS TO CREATE AN AREA OF
FREE TRADE AMONG THE SEVERAL STATES.  THAT CLAUSE VESTED THE POWER OF
TAXING A TRANSACTION FORMING AN UNBROKEN PROCESS OF INTERSTATE COMMERCE
IN THE CONGRESS, NOT IN THE STATES. 

THE DIFFERENCE IN SUBSTANCE BETWEEN A SALES AND A USE TAX WAS
ADVERTED TO IN THE LEADING CASE SUSTAINING A TAX ON THE USE AFTER A
SALE HAD SPENT ITS INTERSTATE CHARACTER:  "A TAX UPON A USE SO CLOSELY
CONNECTED WITH DELIVERY AS TO BE IN SUBSTANCE A PART THEREOF MIGHT BE
SUBJECT TO THE SAME OBJECTIONS THAT WOULD BE APPLICABLE TO A TAX UPON
THE SALE ITSELF."  HENNEFORD V. SILAS MASON CO., 300 U.S. 577, 583. 
THUS WE ARE NOT DEALING WITH MATTERS OF NOMENCLATURE EVEN THOUGH THEY
BE MATTERS OF NICETY.  "THE STATE COURT COULD NOT RENDER VALID, BY
MISDESCRIBING IT, A TAX LAW WHICH IN SUBSTANCE AND EFFECT WAS REPUGNANT
TO THE FEDERAL CONSTITUTION; NEITHER CAN IT RENDER UNCONSTITUTIONAL A
TAX, THAT IN ITS ACTUAL EFFECT VIOLATES NO CONSTITUTIONAL PROVISION, BY
INACCURATELY DEFINING IT."  WAGNER V. CITY OF COVINGTON, 251 U.S. 95,
102.  THOUGH SALES AND USE TAXES MAY SECURE THE SAME REVENUES AND SERVE
COMPLEMENTARY PURPOSES, THEY ARE, AS WE HAVE INDICATED, TAXES ON
DIFFERENT TRANSACTIONS AND FOR DIFFERENT OPPORTUNITIES AFFORDED BY A
STATE. 

A VERY DIFFERENT SITUATION UNDERLAY WISCONSIN V. J.C. PENNEY CO., 311
U.S. 435.  THE WISCONSIN SUPREME COURT AND THIS COURT WERE CONCERNED
WITH AN EXACTION ON A TRANSACTION WHICH THE WISCONSIN COURT DESCRIBED
ONE WAY AND WE ANOTHER.  WE LOOKED BEHIND THE LABELS TO THE THING
DESCRIBED, AND THE THING - TAXATION OF THE DISTRIBUTION OF INCOME
EARNED IN WISCONSIN - DID NOT OFFEND THE FEDERAL CONSTITUTION.  THAT
CASE AFFORDS NO GROUND FOR REJECTING THE DELIBERATE CHOICE OF A STATE
TO IMPOSE A TAX ON A TRANSFER OF OWNERSHIP AND SUSTAINING IT, WHERE THE
TRANSFER WAS MADE BEYOND THE STATE LIMITS, AS A USE TAX ON THAT
PROPERTY BECAUSE THE STATE MIGHT, SO FAR AS THE FEDERAL CONSTITUTION IS
CONCERNED, HAVE ENACTED A USE TAX AND SUCH A USE TAX MIGHT HAVE BEEN
COLLECTED ON THE ENJOYMENT OF THE GOODS SO SOLD.  SUCH A MODE OF
ADJUDICATION WOULD IMPLY A DUTY OF EXCESSIVE ASTUTENESS ON OUR PART TO
CONTRACT THE AREA OF FREE TRADE AMONG THE STATES.  JUDGMENT AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY CONCUR, DISSENTING: 

THE PRESENT DECISION MARKS A RETREAT FROM THE PHILOSOPHY OF THE
BERWIND-WHITE CASE, 309 U.S. 33.  IT DRAWS A DISTINCTION BETWEEN THE
USE TAX (FELT & TARRANT CO. V. GALLAGHER, 306 U.S. 62) AND THE SALES
TAX WHICH ON THE FACTS OF THIS CASE SEEMS IRRELEVANT TO THE POWER OF
ARKANSAS TO TAX.  AND IT IS SQUARELY OPPOSED TO MCGOLDRICK V. FELT &
TARRANT CO., 309 U.S. 70, WHICH SHOULD BE OVERRULED IF THE PRESENT
DECISION GOES DOWN. 

FELT & TARRANT CO. V. GALLAGHER INVOLVED A USE TAX.  THE STATE OF THE
BUYER (CALIFORNIA) WAS ALLOWED TO EXACT THE TAX FROM THE ILLINOIS
SELLER FOR GOODS SOLD TO CALIFORNIA BUYERS THOUGH THE SELLER'S
ACTIVITIES IN CALIFORNIA WERE NOT DIFFERENT IN QUALITY AND HARDLY MORE
NUMEROUS THAN THE ARKANSAS ACTIVITIES OF THE TENNESSEE SELLERS IN THE
PRESENT CASE.  THOUGH IN SOME CASES DELIVERIES WERE MADE BY THE LOCAL
AGENT FOR FELT & TARRANT, IN OTHERS SHIPMENTS WERE MADE BY IT FROM
ILLINOIS DIRECT TO THE BUYERS IN CALIFORNIA.  AND IN THAT CASE, AS IN
THE PRESENT CASE, THE ORDERS WERE ACCEPTED OUTSIDE THE STATE OF THE
BUYER AND REMITTANCES WERE MADE DIRECT TO THE OUT-OF-STATE SELLER. 

IN MCGOLDRICK V. FELT & TARRANT CO. WE ALLOWED NEW YORK CITY TO
COLLECT ITS SALES TAX ON SALES WHICH FELT & TARRANT MADE TO NEW YORK
PURCHASERS UNDER SUBSTANTIALLY THE SAME COURSE OF DEALING AS OBTAINED
IN CASE OF THE CALIFORNIA USE TAX.  MOREOVER, THERE WERE OTHER
TRANSACTIONS IN MCGOLDRICK V. FELT & TARRANT WHICH WERE EVEN CLOSER TO
THE SALES IN THE PRESENT CASE.  I REFER TO THE SALES TO NEW YORK CITY
BUYERS BY A MASSACHUSETTS CORPORATION (DU GRENIER, INC.) WHICH WAS NOT
AUTHORIZED TO DO BUSINESS IN NEW YORK AND WHICH HAD NO EMPLOYEE THERE. 
ANOTHER COMPANY, STEWART & MCGUIRE, INC., ACTED AS ITS EXCLUSIVE AGENT
AND SOLICITED ORDERS IN NEW YORK CITY.  THE ORDERS WERE FORWARDED TO
MASSACHUSETTS WHERE THEY WERE ACCEPTED.  SHIPMENTS WERE MADE BY RAIL OR
TRUCK (F.O.B. HAVERHILL, MASS.) TO THE PURCHASER IN NEW YORK CITY, WHO
PAID THE FREIGHT.  YET WE ALLOWED NEW YORK CITY TO COLLECT ITS SALES
TAX ON THOSE TRANSACTIONS. 

IF THE FEDERAL CONSTITUTION DOES NOT PROHIBIT NEW YORK CITY FROM
LEVYING ITS SALES TAX ON THE PROCEEDS OF THOSE INTERSTATE TRANSACTIONS
OR CALIFORNIA FROM EXACTING ITS USE TAX AT THE FINAL STAGE OF AN
INTERSTATE MOVEMENT OF GOODS, I FAIL TO SEE WHY ARKANSAS SHOULD BE
PROHIBITED FROM COLLECTING THE PRESENT TAX. 

IT IS NOT ENOUGH TO SAY THAT THE USE TAX AND THE SALES TAX ARE
DIFFERENT.  A USE TAX MAY OF COURSE HAVE A WIDER RANGE OF APPLICATION
THAN A SALES TAX.  HENNEFORD V. SILAS MASON CO., 300 U.S. 577.  BUT A
USE TAX AND A SALES TAX APPLIED AT THE VERY END OF AN INTERSTATE
TRANSACTION HAVE PRECISELY THE SAME ECONOMIC INCIDENCE.  THEIR EFFECT
ON INTERSTATE COMMERCE IS IDENTICAL.  WE STATED AS MUCH IN THE BERWIND
WHITE CASE WHERE, IN SPEAKING OF THE SALES TAX, WE SAID (309 U.S. P.
49):  "IT DOES NOT AIM AT OR DISCRIMINATE AGAINST INTERSTATE COMMERCE. 
IT IS LAID UPON EVERY PURCHASER, WITHIN THE STATE, OF GOODS FOR
CONSUMPTION, REGARDLESS OF WHETHER THEY HAVE BEEN TRANSPORTED IN
INTERSTATE COMMERCE.  ITS ONLY RELATION TO THE COMMERCE ARISES FROM THE
FACT THAT IMMEDIATELY PRECEDING TRANSFER OF POSSESSION TO THE PURCHASER
WITHIN THE STATE, WHICH IS THE TAXABLE EVENT REGARDLESS OF THE TIME AND
PLACE OF PASSING TITLE, THE MERCHANDISE HAS BEEN TRANSPORTED IN
INTERSTATE COMMERCE AND BROUGHT TO ITS JOURNEY'S END.  SUCH A TAX HAS
NO DIFFERENT EFFECT UPON INTERSTATE COMMERCE THAN A TAX ON THE 'USE' OF
PROPERTY WHICH HAS JUST BEEN MOVED IN INTERSTATE COMMERCE," CITING USE
TAX CASES INCLUDING HENNEFORD V. SILAS MASON CO. AND FELT & TARRANT CO.
V. GALLAGHER. 

THE SALES TAX AND THE USE TAX ARE, TO BE SURE, TAXES ON DIFFERENT
PHASES OF THE INTERSTATE TRANSACTION.  WE MAY AGREE THAT THE USE TAX IS
A TAX "ON THE ENJOYMENT OF THAT WHICH WAS PURCHASED."  BUT
REALISTICALLY THE SALES TAX IS A TAX ON THE RECEIPT OF THAT WHICH WAS
PURCHASED.  FOR AS WE SAID IN THE EXCERPT FROM THE BERWIND-WHITE CASE
QUOTED ABOVE, IT IS THE "TRANSFER OF POSSESSION TO THE PURCHASER WITHIN
THE STATE" WHICH IS THE "TAXABLE EVENT REGARDLESS OF THE TIME AND PLACE
OF PASSING TITLE."  AND MCGOLDRICK V. FELT & TARRANT CO. MAKES PLAIN
THAT THE TRANSFER OF POSSESSION NEED NOT BE BY THE SELLER, FOR IN THAT
CASE, AS IN THE PRESENT ONE, DELIVERIES WERE MADE BY COMMON CARRIERS
WHICH ACCEPTED THE GOODS F.O.B. AT POINTS OUTSIDE THE STATE.  IN TERMS
OF STATE POWER, RECEIPT OF GOODS WITHIN THE STATE OF THE BUYER IS AS
ADEQUATE A BASIS FOR THE EXERCISE OF THE TAXING POWER AS USE WITHIN THE
STATE.  AND THERE SHOULD BE NO DIFFERENCE IN RESULT UNDER THE COMMERCE
CLAUSE WHERE, AS HERE, THE PRACTICAL IMPACT ON THE INTERSTATE
TRANSACTION IS THE SAME.    IT IS NO ANSWER TO SAY THAT THE ARKANSAS
SALES TAX MAY NOT BE IMPOSED BECAUSE THE OUT-OF-STATE SELLER WAS
"THROUGH SELLING" WHEN THE TAX WAS INCURRED.  THAT WAS LIKEWISE TRUE OF
BOTH THE USE TAX CASES, INCLUDING GENERAL TRADING CO. V. STATE TAX
COMMISSION, POST, P. 335, AND THE SALES TAX DECISION IN MCGOLDRICK V.
FELT & TARRANT CO. THE QUESTION IS WHETHER THERE IS A PHASE OF THE
INTERSTATE TRANSACTION ON WHICH THE STATE OF THE BUYER CAN LAY HOLD
WITHOUT PLACING INTERSTATE COMMERCE AT A DISADVANTAGE.  THERE IS NO
SHOWING THAT TENNESSEE WAS EXACTING FROM THESE VENDORS A TAX ON THESE
SAME TRANSACTIONS OR THAT ARKANSAS DISCRIMINATED AGAINST THEM.  I CAN
SEE NO WARRANT FOR AN INTERPRETATION OF THE COMMERCE CLAUSE WHICH PUTS
LOCAL INDUSTRY AT A COMPETITIVE DISADVANTAGE WITH INTERSTATE BUSINESS. 
IF THERE IS A TAXABLE EVENT WITHIN THE STATE OF THE BUYER, I WOULD MAKE
THE RESULT UNDER THE COMMERCE CLAUSE TURN ON PRACTICAL CONSIDERATIONS
AND BUSINESS REALITIES RATHER THAN ON DIALECTICS.  IF THAT IS NOT DONE,
I THINK WE SHOULD RETREAT FROM THE VIEW THAT INTERSTATE COMMERCE SHOULD
CARRY ITS FAIR SHARE OF THE COSTS OF GOVERNMENT IN THE LOCALITIES WHERE
IT FINDS ITS MARKETS AND ADOPT THE VIEWS EXPRESSED IN THE DISSENT IN
THE BERWIND-WHITE CASE. 

MR. JUSTICE RUTLEDGE ALSO DISSENTS.  FOR HIS OPINION, SEE POST, P.
349. 
..END :













GENERAL TRADING CO. V. TAX COMM'N, 322 U.S. 335 


NO. 441.  ARGUED FEBRUARY 4, 1944.  - DECIDED MAY 15, 1944.  - 233 IOWA
877, 10 N.W.2D 659, AFFIRMED. 


A MINNESOTA CORPORATION WHICH HAD NOT QUALIFIED TO DO BUSINESS IN
IOWA, AND WHICH MAINTAINED NO OFFICE OR OTHER PLACE OF BUSINESS IN
IOWA, MADE SALES OF GOODS IN MINNESOTA WHICH WERE SENT BY COMMON
CARRIER OR BY MAIL TO PURCHASERS IN IOWA.  ORDERS, SOLICITED IN IOWA BY
SALESMEN FROM HEADQUARTERS IN MINNESOTA, WERE TAKEN SUBJECT TO
ACCEPTANCE IN MINNESOTA.  HELD THAT THE TAX IMPOSED BY THE IOWA USE TAX
ACT UPON THE USE OF SUCH GOODS IN IOWA, AND THE REQUIREMENT THAT THE
CORPORATION COLLECT THE TAX AND PAY IT TO THE STATE, DID NOT VIOLATE
THE FEDERAL CONSTITUTION.  FOLLOWING FELT & TARRANT CO. V. GALLAGHER,
306 U.S. 62; NELSON V. SEARS, ROEBUCK & CO., 312 U.S. 359, AND NELSON
V. MONTGOMERY WARD & CO., 312 U.S. 373.  PP. 336, 338. 

GENERAL TRADING CO., DOING BUSINESS AS MINNEAPOLIS IRON STORE, V.
STATE TAX COMMISSION OF THE STATE OF IOWA. 

CERTIORARI TO THE SUPREME COURT OF IOWA. 

CERTIORARI, 320 U.S. 731, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE STATE TAX COMMISSION IN AN ACTION TO RECOVER USE TAXES. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE STATE TAX COMMISSION OF IOWA BROUGHT THIS SUIT UNDER THE
AUTHORITY OF THE IOWA USE TAX LAW WHICH WAS RECENTLY HERE IN NELSON V.
SEARS, ROEBUCK & CO., 312 U.S. 359, AND NELSON V. MONTGOMERY WARD &
CO., 312 U.S. 373.  THE QUESTION NOW PRESENTED IS, IN SHORT, WHETHER
IOWA MAY COLLECT, IN THE CIRCUMSTANCES OF THIS CASE, SUCH A USE TAX
FROM GENERAL TRADING COMPANY, A MINNESOTA CORPORATION, ON THE BASIS OF
PROPERTY BOUGHT FROM TRADING COMPANY AND SENT BY IT FROM MINNESOTA TO
PURCHASERS IN IOWA FOR USE AND ENJOYMENT THERE. 

BY THE IOWA USE TAX LAW A TAX IS "IMPOSED ON THE USE IN THIS STATE OF
TANGIBLE PERSONAL PROPERTY PURCHASED  ...  FOR USE IN THIS STATE AT THE
RATE OF TWO PERCENT OF THE PURCHASE PRICE OF SUCH PROPERTY.  SAID TAX
IS  ...  IMPOSED UPON EVERY PERSON USING SUCH PROPERTY WITHIN THIS
STATE UNTIL SUCH TAX HAS BEEN PAID DIRECTLY TO THE COUNTY TREASURER, TO
A RETAILER, OR TO THE COMMISSION.  ...  "  SEC. 6943.103, CODE OF IOWA
1939.  THE USE OF PROPERTY THE SALE OF WHICH IS SUBJECT TO IOWA'S SALES
TAX IS EXEMPTED FROM THE USE TAX (SEC. 6943.104(1)), BUT THE SALES TAX
CAN BE LAID ONLY ON SALES AT RETAIL WITHIN THE STATE.  SEC. 6943.075. 
THE USE TAX CONSTITUTES A DEBT OWED BY THE RETAILER TO THE STATE.  SEC.
6943.112.  BUT "EVERY RETAILER MAINTAINING A PLACE OF BUSINESS" IN IOWA
MUST COLLECT THIS TAX FROM THE PURCHASER (SEC. 6943.109), AND MAY NOT
ADVERTISE THAT HE WILL HIMSELF ABSORB THE TAX.  SEC. 6943.111.  FINALLY
AN OFFSETTING CREDIT (SEE HENNEFORD V. SILAS MASON CO., 300 U.S. 577,
584, 586-7) IF ANOTHER USE OR SALES TAX HAS BEEN PAID FOR THE SAME
THING ELSEWHERE IS ALLOWED, AND IF THE TAX "IMPOSED IN SUCH OTHER STATE
IS TWO PERCENT OR MORE, THEN NO TAX SHALL BE DUE ON SUCH ARTICLES." 
SEC. 6943.125. 

A JUDGMENT IN FAVOR OF THE TAX COMMISSION BY ONE OF THE LOWER COURTS
WAS AFFIRMED BY THE SUPREME COURT OF IOWA, 233 IOWA 877; 10 N.W.2D
659.  THE APPLICATION BY THAT COURT OF ITS LOCAL LAWS AND THE FACTS ON
WHICH IT FOUNDED ITS JUDGMENT ARE OF COURSE CONTROLLING HERE.  FROM
THESE IT APPEARS THAT GENERAL TRADING COMPANY HAD NEVER QUALIFIED TO DO
BUSINESS AS A FOREIGN CORPORATION IN IOWA NOR DOES IT MAINTAIN THERE
ANY OFFICE, BRANCH OR WAREHOUSE.  THE PROPERTY ON WHICH THE USE TAX WAS
LAID WAS SENT TO IOWA AS A RESULT OF ORDERS SOLICITED BY TRAVELING
SALESMEN SENT INTO IOWA FROM THEIR MINNESOTA HEADQUARTERS.  THE ORDERS
WERE ALWAYS SUBJECT TO ACCEPTANCE IN MINNESOTA WHENCE THE GOODS WERE
SHIPPED INTO IOWA BY COMMON CARRIERS OR THE POST.  UPON THESE FACTS AND
ITS HOLDING THAT TRADING COMPANY WAS A "RETAILER MAINTAINING A PLACE OF
BUSINESS IN THIS STATE" WITHIN THE MEANING OF THE IOWA STATUTE, THE
IOWA SUPREME COURT HELD THAT IOWA HAD NOT EXCEEDED ITS POWERS IN THE
IMPOSITION OF THIS USE TAX ON IOWA PURCHASERS, AND THAT COLLECTION
COULD VALIDLY BE MADE THROUGH THE TRADING COMPANY. 

WE BROUGHT THE CASE HERE, 320 U.S. 731, TO MEET THE CLAIM THAT THERE
WAS NEED FOR FURTHER PRECISION REGARDING THE SCOPE OF OUR PREVIOUS
RULINGS ON THE POWER OF STATES TO LEVY USE TAXES.  IN VIEW, HOWEVER, OF
THE CLEAR UNDERSTANDING BY THE COURT BELOW THAT THE FACTS WE HAVE
SUMMARIZED BRING THE TRANSACTION WITHIN THE TAXING POWER OF IOWA, THERE
IS LITTLE NEED FOR ELABORATION.  WE AGREE WITH THE IOWA SUPREME COURT
THAT FELT & TARRANT CO. V. GALLAGHER, 306 U.S. 62; NELSON V. SEARS,
ROEBUCK & CO., SUPRA; AND NELSON V. MONTGOMERY WARD & CO., SUPRA, ARE
CONTROLLING.  THE GALLAGHER CASE IS INDISTINGUISHABLE - CERTAINLY
NOTHING CAN TURN ON THE MORE ELABORATE ARRANGEMENTS FOR SOLICITING
ORDERS FOR AN INTRICATE MACHINE FOR SHIPMENT FROM WITHOUT A STATE AS IN
THE GALLAGHER CASE, COMPARED WITH THE APPARENTLY SIMPLER NEEDS FOR
SOLICITING BUSINESS IN THIS CASE.  AND THE FACT THAT IN THE SEARS
ROEBUCK AND MONTGOMERY WARD CASES THE INTERSTATE VENDOR ALSO HAD RETAIL
STORES IN IOWA, WHOSE SALES WERE APPROPRIATELY SUBJECTED TO THE SALES
TAX, IS CONSTITUTIONALLY IRRELEVANT TO THE RIGHT OF IOWA SUSTAINED IN
THOSE CASES TO EXACT A USE TAX FROM PURCHASERS ON MAIL ORDER GOODS
FORWARDED INTO IOWA FROM WITHOUT THE STATE.  ALL THESE DIFFERENTIATIONS
ARE WITHOUT CONSTITUTIONAL SIGNIFICANCE.  OF COURSE, NO STATE CAN TAX
THE PRIVILEGE OF DOING INTERSTATE BUSINESS.  SEE WESTERN LIVE STOCK V.
BUREAU, 303 U.S. 250.  THAT IS WITHIN THE PROTECTION OF THE COMMERCE
CLAUSE AND SUBJECT TO THE POWER OF CONGRESS.  ON THE OTHER HAND, THE
MERE FACT THAT PROPERTY IS USED FOR INTERSTATE COMMERCE OR HAS COME
INTO AN OWNER'S POSSESSION AS A RESULT OF INTERSTATE COMMERCE DOES NOT
DIMINISH THE PROTECTION WHICH HE MAY DRAW FROM A STATE TO THE UPKEEP OF
WHICH HE MAY BE ASKED TO BEAR HIS FAIR SHARE.  BUT A FAIR SHARE
PRECLUDES LEGISLATION OBVIOUSLY HOSTILE OR PRACTICALLY DISCRIMINATORY
TOWARD INTERSTATE COMMERCE.  SEE BEST & CO. V. MAXWELL, 311 U.S. 454. 

NONE OF THESE INFIRMITIES AFFECTS THE TAX IN THIS CASE ANY MORE THAN
IT DID IN THE OTHER CASES WITH WHICH IT FORMS A GROUP.  THE TAX IS WHAT
IT PROFESSES TO BE - A NON-DISCRIMINATORY EXCISE LAID ON ALL PERSONAL
PROPERTY CONSUMED IN IOWA.  THE PROPERTY IS ENJOYED BY AN IOWA RESIDENT
PARTLY BECAUSE THE OPPORTUNITY IS GIVEN BY IOWA TO ENJOY PROPERTY NO
MATTER WHENCE ACQUIRED.  THE EXACTION IS MADE AGAINST THE ULTIMATE
CONSUMER - THE IOWA RESIDENT WHO IS PAYING TAXES TO SUSTAIN HIS OWN
STATE GOVERNMENT.  TO MAKE THE DISTRIBUTOR THE TAX COLLECTOR FOR THE
STATE IS A FAMILIAR AND SANCTIONED DEVICE.  MONAMOTOR OIL CO. V.
JOHNSON, 292 U.S. 86, 93-94; FELT & TARRANT CO. V. GALLAGHER, SUPRA.
AFFIRMED. 

MR. JUSTICE RUTLEDGE CONCURS.  FOR HIS OPINION, SEE POST, P. 349. 

MR. JUSTICE JACKSON, DISSENTING: 

THIS DECISION AUTHORIZES IN MY OPINION AN UNWARRANTED EXTENSION OF
THE POWER OF A STATE TO SUBJECT PERSONS TO ITS TAXING POWER WHO ARE NOT
WITHIN ITS JURISDICTION AND HAVE NOT IN ANY MANNER SUBMITTED THEMSELVES
TO IT.  THE GENERAL TRADING COMPANY IS, IN THE LANGUAGE OF THE OPINION,
MADE "THE TAX COLLECTOR FOR THE STATE."  WE HAVE HERETOFORE HELD, AND I
THINK PROPERLY, THAT THE STATE MAY MAKE TAX COLLECTORS OF THOSE WHO
COME IN AND DO BUSINESS WITHIN ITS JURISDICTION, FOR THEREBY THEY
SUBMIT THEMSELVES TO ITS POWER.  SUCH WAS THE SITUATION IN BOTH
MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, AND FELT & TARRANT MFG. CO.
V. GALLAGHER, 306 U.S. 62.  THESE ARE THE ONLY AUTHORITIES CITED BY THE
COURT ON THIS POINT, AND THEY CLEARLY ARE NOT PRECEDENTS TO SUPPORT
THIS DECISION. 

IN THIS CASE, AS THE OPINION POINTS OUT, THE GENERAL TRADING COMPANY
NEVER QUALIFIED IN IOWA AND HAS NO OFFICE, BRANCH, WAREHOUSE, OR
GENERAL AGENT IN THE STATE.  FROM MINNESOTA IT SHIPS GOODS ORDERED FROM
SALESMEN BY PURCHASERS IN IOWA.  ORDERS ARE ACCEPTED ONLY IN
MINNESOTA.  THE TRANSACTION OF SALE IS NOT TAXED AND, BEING CLEARLY
INTERSTATE COMMERCE, IS NOT TAXABLE.  MCLEOD V. DILWORTH CO., ANTE, P.
327.  SO WE ARE HOLDING THAT A STATE HAS POWER TO MAKE A TAX COLLECTOR
OF ONE WHOM IT HAS NO POWER TO TAX.  CERTAINLY NO STATE HAS A
CONSTITUTIONAL WARRANT FOR MAKING A TAX COLLECTOR OF ONE AS THE PRICE
OF THE PRIVILEGE OF DOING INTERSTATE COMMERCE.  HE DOES NOT GET THE
RIGHT FROM THE STATE, AND THE STATE CANNOT QUALIFY IT.  I CAN IMAGINE
NO PRINCIPLE OF STATES' RIGHTS OR STATE COMITY WHICH CAN JUSTIFY WHAT
IS DONE HERE.  NOR DOES THE PRACTICE SEEM CONDUCIVE TO GOOD ORDER IN
THE FEDERAL SYSTEM.  THE POWER OF IOWA TO ENFORCE COLLECTION IN OTHER
STATES IS CERTAINLY VERY LIMITED AND THE EFFORT TO DO SO ON ANY WIDE
SCALE IS UNLIKELY EITHER TO BE SYSTEMATICALLY PURSUED OR SUCCESSFULLY
EXECUTED. 

I RECOGNIZE THE PRESSURE TO UPHOLD ALL MANNER OF EFFORTS TO COLLECT
TAX MONEYS.  BUT THIS DECISION, BY WHICH ONE MAY NOT SHIP GOODS FROM
ANYWHERE IN THE UNITED STATES TO A PURCHASER IN IOWA WITHOUT BECOMING A
NONRESIDENT TAX COLLECTOR, EXCEEDS EVERYTHING SO FAR DONE BY THIS
COURT.  IN MY OPINION THE STATUTE IS AN EFFORT TO EXERT
EXTRATERRITORIAL CONTROL BEYOND ANY WHICH A STATE COULD EXERT IF THERE
WERE NO CONSTITUTION AT ALL.  I CAN THINK OF NOTHING IN OR OUT OF THE
CONSTITUTION WHICH WARRANTS THIS EFFORT TO REACH BEYOND THE STATE'S OWN
BORDER TO MAKE OUT-OF-STATE MERCHANTS TAX COLLECTORS BECAUSE THEY
ENGAGE IN INTERSTATE COMMERCE WITH THE STATE'S CITIZENS. 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :























HARVESTER CO. V. DEPT. OF TREASURY, 322 U.S. 340 


NO. 355.  ARGUED FEBRUARY 29, 1944.  - DECIDED MAY 15, 1944.  - 221 IND.
416, 47 N.E.2D 150, AFFIRMED. 


1.  AN INDIANA TAX UPON GROSS INCOME, AS APPLIED TO RECEIPTS FROM THE
FOLLOWING CLASSES OF SALES BY A FOREIGN CORPORATION AUTHORIZED TO DO
BUSINESS IN INDIANA, WAS NOT PRECLUDED BY THE COMMERCE CLAUSE OR THE
FOURTEENTH AMENDMENT:  (1) SALES BY OUT-OF-STATE BRANCHES TO INDIANA
DEALERS AND USERS, WHERE DELIVERY IS TAKEN AT PLANTS OF THE CORPORATION
IN INDIANA; (2) SALES TO OUT-OF-STATE BUYERS WHO COME TO INDIANA, TAKE
DELIVERY THERE, AND TRANSPORT THE GOODS TO ANOTHER STATE; (3) SALES IN
INDIANA TO INDIANA BUYERS, WHERE THE GOODS ARE SHIPPED FROM OUT-OF
STATE POINTS TO THE BUYER.  PP. 344-346. 

2.  NEITHER THE COMMERCE CLAUSE NOR THE FOURTEENTH AMENDMENT
PRECLUDES THE IMPOSITION OF A STATE TAX ON RECEIPTS FROM AN INTRASTATE
TRANSACTION, EVEN THOUGH THE TOTAL ACTIVITIES FROM WHICH THE LOCAL
TRANSACTION DERIVES MAY HAVE INCIDENTAL INTERSTATE ATTRIBUTES.  P.
344. 

3.  A STATE CONSTITUTIONALLY MAY TAX GROSS RECEIPTS FROM INTERSTATE
TRANSACTIONS CONSUMMATED WITHIN ITS BORDERS WHERE IT TREATS WHOLLY
LOCAL TRANSACTIONS SIMILARLY.  P. 348. 

INTERNATIONAL HARVESTER CO. ET AL. V. DEPARTMENT OF TREASURY ET AL. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

APPEAL FROM A JUDGMENT SUSTAINING AS TO CERTAIN TRANSACTIONS OF THE
APPELLANTS A STATE TAX ON GROSS RECEIPTS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS CONCERNING THE CONSTITUTIONALITY OF THE
INDIANA GROSS INCOME TAX ACT OF 1933(L. 1933, P. 388, BURNS IND. STATS.
ANN. SEC. 64-2601) AS CONSTRUED AND APPLIED TO CERTAIN BUSINESS
TRANSACTIONS OF APPELLANT COMPANIES.  THE SUIT WAS BROUGHT BY
APPELLANTS TO RECOVER GROSS INCOME TAXES PAID TO INDIANA DURING THE
YEARS 1935 AND 1936.  THE INDIANA SUPREME COURT SUSTAINED OBJECTIONS TO
THE IMPOSITION OF THE TAX ON CERTAIN SALES BUT ALLOWED THE TAX TO BE
IMPOSED ON OTHER TYPES OF TRANSACTIONS.  221 IND. 416, 47 N.E.2D 150. 
THE CORRECTNESS OF THE LATTER RULING IS CHALLENGED BY THE APPEAL WHICH
BRINGS THE CASE HERE.  JUDICIAL CODE SEC. 237, 28 U.S.C. SEC. 344(A),
28 U.S.C. SEC. 861(A). 

APPELLANTS ARE CORPORATIONS AUTHORIZED TO DO BUSINESS IN INDIANA BUT
INCORPORATED UNDER THE LAWS OF OTHER STATES.  THEY MANUFACTURE FARM
IMPLEMENTS AND MOTOR TRUCKS AND SELL THOSE ARTICLES BOTH AT WHOLESALE
AND RETAIL.  DURING THE PERIOD HERE IN QUESTION THEY MAINTAINED
MANUFACTURING PLANTS AT RICHMOND AND FORT WAYNE, INDIANA AND SELLING
BRANCHES AT INDIANAPOLIS, TERRE HAUTE, FORT WAYNE, AND EVANSVILLE,
INDIANA.  THEY ALSO HAD MANUFACTURING PLANTS AND SALES BRANCHES IN
ADJOINING STATES AND ELSEWHERE.  EACH BRANCH HAD AN ASSIGNED
TERRITORY.  IN SOME INSTANCES PARTS OF INDIANA WERE WITHIN THE
EXCLUSIVE JURISDICTION OF BRANCH OFFICES WHICH WERE LOCATED OUTSIDE THE
STATE.  THE TRANSACTIONS WHICH INDIANA SAYS MAY BE TAXED WITHOUT
INFRINGEMENT OF THE FEDERAL CONSTITUTION ARE DESCRIBED BY THE INDIANA
SUPREME COURT AS FOLLOWS: 

CLASS C:  SALES BY BRANCHES LOCATED OUTSIDE INDIANA TO DEALERS AND
USERS RESIDING IN INDIANA.  THE ORDERS WERE SOLICITED IN INDIANA AND
THE CUSTOMERS TOOK DELIVERY TO THEMSELVES AT THE FACTORIES IN INDIANA
TO SAVE TIME AND EXPENSE OF SHIPPING.  FN1 

CLASS D:  SALES BY BRANCHES LOCATED IN INDIANA TO DEALERS AND USERS
RESIDING OUTSIDE OF INDIANA, IN WHICH THE CUSTOMERS CAME TO INDIANA AND
ACCEPTED DELIVERY TO THEMSELVES IN THIS STATE.  FN2 

CLASS E:  SALES BY BRANCHES LOCATED IN INDIANA TO DEALERS AND USERS
RESIDING IN INDIANA, IN WHICH THE GOODS WERE SHIPPED FROM POINTS
OUTSIDE INDIANA TO CUSTOMERS IN INDIANA, PURSUANT TO CONTRACTS SO
PROVIDING.  FN3 

THE GROSS INCOME TAX  FN4  COLLECTED ON THOSE TRANSACTIONS IS THE
SAME ONE WHICH WAS BEFORE THIS COURT IN DEPARTMENT OF TREASURY V. WOOD
PRESERVING CORP., 313 U.S. 62, AND ADAMS MFG. CO. V. STOREN, 304 U.S.
307.  THE TAX WAS DESCRIBED IN THE STOREN CASE AS "A PRIVILEGE TAX UPON
THE RECEIPT OF GROSS INCOME."  304 U.S. P. 311.  IN THAT CASE AN
INDIANA CORPORATION WHICH MANUFACTURED PRODUCTS AND MAINTAINED ITS HOME
OFFICE, PRINCIPAL PLACE OF BUSINESS, AND FACTORY IN INDIANA SOLD THOSE
PRODUCTS TO CUSTOMERS IN OTHER STATES AND FOREIGN COUNTRIES UPON ORDERS
TAKEN SUBJECT TO APPROVAL AT THE HOME OFFICE.  IT WAS HELD THAT THE
COMMERCE CLAUSE (ART. I, SEC. 8 OF THE CONSTITUTION) WAS A BARRIER TO
THE IMPOSITION OF THE TAX ON THE GROSS RECEIPTS FROM SUCH SALES.  BUT
AS WE HELD IN THE WOOD PRESERVING CORP. CASE, NEITHER THE COMMERCE
CLAUSE NOR THE FOURTEENTH AMENDMENT PREVENTS THE IMPOSITION OF THE TAX
ON RECEIPTS FROM AN INTRASTATE TRANSACTION EVEN THOUGH THE TOTAL
ACTIVITIES FROM WHICH THE LOCAL TRANSACTION DERIVES MAY HAVE INCIDENTAL
INTERSTATE ATTRIBUTES. 

THE OBJECTIONS UNDER THE COMMERCE CLAUSE AND THE FOURTEENTH AMENDMENT
TO THE TAX ON THE RECEIPTS FROM THE THREE CLASSES OF SALES INVOLVED
HERE ARE EQUALLY WITHOUT MERIT. 

IN THE WOOD PRESERVING CORP. CASE CONTRACTS WERE MADE OUTSIDE INDIANA
FOR THE SALE OF RAILROAD TIES.  THE RESPONDENT-SELLER, A DELAWARE
CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS IN PENNSYLVANIA,
OBTAINED THE TIES FROM PRODUCERS IN INDIANA AND DELIVERED THEM TO THE
BUYER (BALTIMORE & OHIO RAILROAD CO.)  IN INDIANA WHO IMMEDIATELY
LOADED THEM ON CARS AND SHIPPED THEM OUT OF THE STATE.  PAYMENTS FOR
THE TIES WERE MADE TO THE SELLER IN PENNSYLVANIA.  WE HELD THAT INDIANA
DID NOT EXCEED ITS CONSTITUTIONAL AUTHORITY WHEN IT LAID THE TAX ON THE
RECEIPTS FROM THOSE SALES. 

WE SEE NO DIFFERENCE BETWEEN THE SALES IN THE WOOD PRESERVING CORP.
CASE AND THE CLASS C SALES IN THE PRESENT ONE WHICH IS TRANSLATABLE
INTO A DIFFERENCE IN INDIANA'S POWER TO TAX.  THE FACT THAT THE SALES
IN CLASS C ARE MADE BY AN OUT-OF-STATE SELLER AND THAT THE CONTRACTS
WERE MADE OUTSIDE THE STATE IS NOT CONTROLLING.  HERE AS IN THE WOOD
PRESERVING CORP. CASE, DELIVERY OF THE GOODS IN INDIANA IS AN ADEQUATE
TAXABLE EVENT.  WHEN INDIANA LAYS HOLD OF THAT TRANSACTION AND LEVIES A
TAX ON THE RECEIPTS WHICH ACCRUE FROM IT, INDIANA IS ASSERTING
AUTHORITY OVER THE FRUITS OF A TRANSACTION CONSUMMATED WITHIN ITS
BORDERS.  THESE SALES, MOREOVER, ARE SALES OF INDIANA GOODS TO INDIANA
PURCHASERS.  WHILE THE CONTRACTS WERE MADE OUTSIDE THE STATE, THE GOODS
WERE NEITHER JUST COMPLETING NOR JUST STARTING AN INTERSTATE JOURNEY. 
IT COULD HARDLY BE MAINTAINED THAT INDIANA COULD NOT IMPOSE A SALES TAX
OR A USE TAX ON THESE TRANSACTIONS.  BUT, AS WE SHALL SEE, IF THAT IS
THE CASE, THERE IS NO CONSTITUTIONAL OBJECTION TO THE IMPOSITION OF A
GROSS RECEIPTS TAX BY THE STATE OF THE BUYER. 

THE CLASS D SALES ARE SALES BY AN INDIANA SELLER OF INDIANA GOODS TO
AN OUT-OF-STATE BUYER WHO COMES TO INDIANA, TAKES DELIVERY THERE AND
TRANSPORTS THE GOODS TO ANOTHER STATE.  THE WOOD PRESERVING CORP. CASE
INDICATES THAT IT IS IMMATERIAL TO THE PRESENT ISSUE THAT THE GOODS ARE
TO BE TRANSPORTED OUT OF INDIANA IMMEDIATELY ON DELIVERY.  MOREOVER,
BOTH THE AGREEMENT TO SELL AND THE DELIVERY TOOK PLACE IN INDIANA. 
THOSE EVENTS WOULD BE ADEQUATE TO SUSTAIN A SALES TAX BY INDIANA.  IN
MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, WE HAD BEFORE US A
QUESTION OF THE CONSTITUTIONALITY OF A NEW YORK CITY SALES TAX AS
APPLIED TO PURCHASES FROM OUT-OF-STATE SELLERS.  THE TAX WAS "LAID UPON
THE BUYER, FOR CONSUMPTION, OF TANGIBLE PERSONAL PROPERTY, AND MEASURED
BY THE SALES PRICE."  ID., P. 43.  AND IT WAS "CONDITIONED UPON EVENTS
OCCURRING" WITHIN NEW YORK, I.E., THE "TRANSFER OF TITLE OR POSSESSION
OF THE PURCHASED PROPERTY."  ID., PP. 43-44.  UNDER THE PRINCIPLE OF
THAT CASE, A BUYER WHO ACCEPTED DELIVERY IN NEW YORK WOULD NOT BE
EXEMPT FROM THE SALES TAX BECAUSE HE CAME FROM WITHOUT THE STATE AND
INTENDED TO RETURN TO HIS HOME WITH THE GOODS.  THE PRESENT TAX, TO BE
SURE, IS ON THE SELLER.  BUT IN EACH A LOCAL TRANSACTION IS MADE THE
TAXABLE EVENT AND THAT EVENT IS SEPARATE AND DISTINCT FROM THE
TRANSPORTATION OR INTERCOURSE WHICH IS INTERSTATE COMMERCE.  IN NEITHER
DOES THE TAX AIM AT OR DISCRIMINATE AGAINST INTERSTATE COMMERCE.  THE
OPERATION OF THE TAX AND ITS EFFECT ON INTERSTATE COMMERCE SEEM NO MORE
SEVERE IN THE ONE CASE THAN IN THE OTHER.  INDEED, IF WE ARE TO REMAIN
CONCERNED WITH THE PRACTICAL OPERATION OF THESE STATE TAXES RATHER THAN
WITH THEIR DESCRIPTIVE LABELS (NELSON V. SEARS, ROEBUCK & CO., 312 U.S.
359, 363), WE MUST ACKNOWLEDGE THAT THE SALES TAX SUSTAINED IN THE
BERWIND-WHITE CASE "WAS, IN FORM, IMPOSED UPON THE GROSS RECEIPTS FROM
AN INTERSTATE SALE."  LOCKHART, GROSS RECEIPTS TAXES ON INTERSTATE
TRANSPORTATION AND COMMUNICATION, 57 HARV. L. REV. 40, 87.  BUT THAT
CASE DID NO MORE THAN TO HOLD THAT THOSE IN INTERSTATE TRADE COULD NOT
COMPLAIN IF INTERSTATE COMMERCE CARRIED ITS SHARE OF THE BURDENS OF
LOCAL GOVERNMENT WHICH HELPED SUSTAIN IT.  AND THERE WAS NO SHOWING
THAT MORE THAN THAT WAS BEING EXACTED. 

THE SALES IN CLASS E EMBRACE THOSE BY AN INDIANA SELLER TO AN INDIANA
BUYER WHERE THE GOODS ARE SHIPPED FROM POINTS OUTSIDE THE STATE TO THE
BUYER.  THE VALIDITY OF THE TAX ON RECEIPTS FROM SUCH SALES WOULD SEEM
TO FOLLOW A FORTIORI FROM OUR RECENT AFFIRMANCE PER CURIAM (318 U.S.
740) OF DEPARTMENT OF TREASURY V. ALLIED MILLS, 220 IND. 340, 42 N.E.2D
34.  IN THAT CASE AN INDIANA CORPORATION HAD ONE FACTORY IN INDIANA AND
TWO IN ILLINOIS.  EACH FACTORY WAS GIVEN A SPECIFIED PART OF INDIANA TO
SERVICE - A METHOD OF DISTRIBUTION ADOPTED TO TAKE ADVANTAGE OF
FAVORABLE FREIGHT RATES, NOT TO EVADE TAXES.  THE ISSUE IN THE CASE WAS
WHETHER THE INDIANA GROSS INCOME TAX COULD BE APPLIED TO RECEIPTS FROM
SALES TO RESIDENT CUSTOMERS IN INDIANA TO WHOM DELIVERIES WERE MADE
FROM THE PLANTS IN ILLINOIS PURSUANT TO ORDERS TAKEN IN INDIANA AND
ACCEPTED IN ILLINOIS.  THE INDIANA SUPREME COURT SUSTAINED THE
IMPOSITION OF THE TAX.  WE AFFIRMED THAT JUDGMENT ON THE AUTHORITY OF
FELT & TARRANT CO. V. GALLAGHER, 306 U.S. 62, AND MCGOLDRICK V. FELT &
TARRANT CO., 309 U.S. 70. 

IN THE LATTER CASES THE FELT & TARRANT CO. WAS AN ILLINOIS SELLER WHO
HAD AGENTS SOLICITING ORDERS IN CALIFORNIA AND NEW YORK.  ALL ORDERS
WERE FORWARDED TO THE ILLINOIS OFFICE FOR APPROVAL.  IF ACCEPTED, THE
ORDERS WERE FILLED BY SHIPPING THE PRODUCTS TO THE LOCAL AGENT WHO
DELIVERED TO THE PURCHASER.  AT TIMES SHIPMENTS WOULD BE MADE DIRECT TO
THE BUYERS.  REMITTANCES WERE MADE BY THE CUSTOMERS DIRECT TO THE
ILLINOIS OFFICE.  IN THE FIRST OF THESE CASES THE COURT SUSTAINED THE
COLLECTION FROM THE SELLER OF THE CALIFORNIA USE TAX.  IN THE SECOND WE
UPHELD ON THE AUTHORITY OF MCGOLDRICK V. BERWIND-WHITE CO., SUPRA, THE
IMPOSITION BY NEW YORK CITY OF ITS SALES TAX ON THOSE PURCHASES. 

WE DO NOT SEE HOW THESE CASES CAN STAND IF THE CLASS E SALES ARE TO
BE EXEMPT ON CONSTITUTIONAL GROUNDS FROM THE PRESENT TAX.  INDEED THE
TRANSACTIONS IN CLASS E HAVE FEWER INTERSTATE ATTRIBUTES THAN THOSE IN
THE FELT & TARRANT CO. CASES SINCE THE AGREEMENTS TO SELL WERE MADE IN
INDIANA, BOTH BUYER AND SELLER WERE IN INDIANA, AND PAYMENTS WERE MADE
IN INDIANA.  IT IS OF COURSE TRUE THAT IN THE FELT & TARRANT CO. CASES
TAXES OF DIFFERENT NAMES WERE INVOLVED.  BUT WE ARE DEALING IN THIS
FIELD WITH MATTERS OF SUBSTANCE, NOT WITH DIALECTICS.  NELSON V. SEARS,
ROEBUCK & CO., SUPRA.  IN THIS CASE AS IN THE FOREGOING SALES TAX CASES
THE TAXABLE TRANSACTION IS AT THE FINAL STAGE OF AN INTERSTATE MOVEMENT
AND THE TAX IS ON THE GROSS RECEIPTS FROM AN INTERSTATE TRANSACTION. 
IN FORM THE USE TAX IS DIFFERENT SINCE IT IS LEVIED ON INTRASTATE USE
AFTER THE COMPLETION OF AN INTERSTATE SALE.  BUT WE RECOGNIZED IN THE
BERWIND-WHITE CASE THAT IN THAT SETTING THE NEW YORK SALES TAX AND THE
CALIFORNIA USE TAX HAD "NO DIFFERENT EFFECT UPON INTERSTATE COMMERCE." 
309 U.S. P. 49.  AND SEE NELSON V. SEARS, ROEBUCK & CO., SUPRA.  THE
SAME IS TRUE OF THIS INDIANA TAX AS APPLIED TO THE CLASS E SALES. 
THERE IS THE SAME PRACTICAL EQUIVALENCE WHETHER THE TAX IS ON THE
SELLING OR THE BUYING PHASE OF THE TRANSACTION.  SEE POWELL, NEW LIGHT
ON GROSS RECEIPTS TAXES, 53 HARV. L. REV. 909, 929.  EACH IS IN
SUBSTANCE AN IMPOSITION OF A TAX ON THE TRANSFER OF PROPERTY.  IN LIGHT
OF OUR RECENT DECISIONS IT COULD HARDLY BE HELD THAT INDIANA LACKED
CONSTITUTIONAL AUTHORITY TO IMPOSE A SALES TAX OR A USE TAX ON THESE
TRANSACTIONS.  BUT IF THAT IS TRUE, A CONSTITUTIONAL DIFFERENCE IS NOT
APPARENT WHEN A "GROSS RECEIPTS" TAX IS UTILIZED INSTEAD. 

HERE AS IN CASE OF THE OTHER CLASSES OF SALES THERE IS NO
DISCRIMINATION AGAINST INTERSTATE COMMERCE.  THE CONSUMMATION OF THE
TRANSACTION WAS AN EVENT WITHIN THE BORDERS OF INDIANA WHICH GAVE IT
AUTHORITY TO LEVY THE TAX ON THE GROSS RECEIPTS FROM THE SALES.  AND
THAT EVENT WAS DISTINCT FROM THE INTERSTATE MOVEMENT OF THE GOODS AND
TOOK PLACE AFTER THE INTERSTATE JOURNEY ENDED. 

MUCH IS SAID, HOWEVER, OF DOUBLE TAXATION, PARTICULARLY WITH
REFERENCE TO THE CLASS D SALES.  IT IS ARGUED THAT APPELLANTS WILL IN
ALL PROBABILITY BE SUBJECTED TO THE ILLINOIS RETAILERS' OCCUPATION TAX
FOR SOME OF THOSE SALES, SINCE THAT TAX IS SAID TO BE EXACTED FROM
THOSE DOING A RETAIL BUSINESS IN ILLINOIS EVEN THOUGH ORDERS FOR THE
SALES ARE ACCEPTED OUTSIDE OF ILLINOIS AND THE PROPERTY IS TRANSFERRED
IN ANOTHER STATE.  FN5  BUT IT WILL BE TIME TO CROSS THAT BRIDGE WHEN
WE COME TO IT.  FOR EXAMPLE, IN THE WOOD PRESERVING CORP. CASE THE
STATE TO WHICH THE PURCHASER TOOK THE TIES MIGHT ALSO HAVE SOUGHT TO
TAX THE TRANSACTION BY LEVYING A USE TAX.  BUT WE DID NOT WITHHOLD THE
HAND OF INDIANA'S TAX COLLECTOR ON THAT ACCOUNT.  NOR IS THE PROBLEM
LIKE THAT OF AN ATTEMPTED TAX ON THE GROSS PROCEEDS OF AN INTERSTATE
SALE BY BOTH THE STATE OF THE BUYER AND THE STATE OF THE SELLER.  CF.
ADAMS MFG. CO. V. STOREN, SUPRA. WE ONLY HOLD THAT WHERE A STATE SEEKS
TO TAX GROSS RECEIPTS FROM INTERSTATE TRANSACTIONS CONSUMMATED WITHIN
ITS BORDERS ITS POWER TO DO SO CANNOT BE WITHHELD ON CONSTITUTIONAL
GROUNDS WHERE IT TREATS WHOLLY LOCAL TRANSACTIONS THE SAME WAY.  SUCH
"LOCAL ACTIVITIES OR PRIVILEGES" (MCGOLDRICK V. BERWIND-WHITE CO.,
SUPRA, P. 58) ARE AS ADEQUATE TO SUPPORT THIS TAX AS THEY WOULD BE TO
SUPPORT A SALES TAX.  TO DENY INDIANA THIS POWER WOULD BE TO MAKE LOCAL
INDUSTRY SUFFER A COMPETITIVE DISADVANTAGE.  AFFIRMED. 

FN1  THE STIPULATION STATES THAT THE "ORDERS AND CONTRACTS WERE
ACCEPTED BY BRANCHES OUTSIDE INDIANA" AND PAYMENTS "WERE RECEIVED BY
BRANCHES OUTSIDE INDIANA."  THE CLASS C SALES WERE PRINCIPALLY SALES OF
MOTOR TRUCKS MANUFACTURED AT FORT WAYNE AND A SMALL AMOUNT OF GOODS
MANUFACTURED AT RICHMOND.  IN CASE OF WHOLESALE SALES IT IS THE CUSTOM
FOR THE DEALER TO NOTIFY THE COMPANY AT THE TIME HE DESIRES DELIVERY
THAT HE WANTS TO TAKE DELIVERY OF THE GOODS HIMSELF AT FORT WAYNE OR
RICHMOND.  IN THE CASE OF RETAIL SALES IN CLASS C, "IF THE USER DESIRES
TO UNDERTAKE TRANSPORTATION OF THE GOODS TO THEIR DESTINATION AND FOR
THAT PURPOSE TO TAKE DELIVERY AT THE FACTORY IN INDIANA, IT IS THE
BUSINESS PRACTICE FOR THE CONTRACT OR ORDER SO TO STATE."    FN2  THE
STIPULATION STATES THAT THE "ORDERS OR CONTRACTS WERE ACCEPTED AND THE
SALES PROCEEDS WERE RECEIVED BY THE BRANCH MANAGERS AT THE BRANCHES
LOCATED WITHIN INDIANA."  THE BUSINESS CUSTOM OR PRACTICE RESPECTING
DELIVERIES IN THE STATE TO DEALERS OR RETAIL PURCHASERS WAS THE SAME AS
IN CASE OF THE CLASS C SALES. 

FN3  THE STIPULATION STATES THAT THE GOODS IN THIS CLASS WERE SHIPPED
BY THE COMPANY FROM OUTSIDE THE STATE, THE ORDER OR CONTRACT SPECIFYING
THAT "SHIPMENT SHOULD BE MADE FROM A POINT OUTSIDE INDIANA TO THE
PURCHASER IN INDIANA."  IN THESE CASES, MOREOVER, THE ORDERS WERE
"SOLICITED FROM PURCHASERS RESIDING IN INDIANA BY REPRESENTATIVES OF
INDIANA BRANCHES, OR THE ORDERS OR CONTRACTS WERE RECEIVED BY MAIL BY
INDIANA BRANCHES.  THE ORDERS AND CONTRACTS WERE ACCEPTED BY THE BRANCH
MANAGER AT BRANCHES LOCATED WITHIN INDIANA.  PAYMENTS OF THE SALES
PROCEEDS WERE RECEIVED BY BRANCHES IN INDIANA.  THE SALES IN THIS CLASS
WERE OF GOODS MANUFACTURED OUTSIDE THE STATE OF INDIANA." 

THERE WAS NO SHOWING, MOREOVER, THAT GOODS IN THIS CLASS WERE OF KIND
THAT COULD BE OBTAINED ONLY OUTSIDE INDIANA.  IT SEEMS TO BE ADMITTED
THAT CLASS E SALES AROSE WHEN AN INDIANA BRANCH RECEIVED ORDERS FOR
GOODS IN QUANTITIES WHICH COULD NOT BE ECONOMICALLY CARRIED IN STOCK OR
WHERE A CHEAPER FREIGHT RATE COULD BE OBTAINED BY DIRECT SHIPMENTS FROM
OUTSIDE INDIANA.  CF. BOWMAN V. CONTINENTAL OIL CO., 256 U.S. 642;
SONNEBORN BROS. V. CURETON, 262 U.S. 506. 

FN4  SEC. 2 OF THE ACT PROVIDED IN PART:  "THERE IS HEREBY IMPOSED A
TAX, MEASURED BY THE AMOUNT OR VOLUME OF GROSS INCOME, AND IN THE
AMOUNT TO BE DETERMINED BY THE APPLICATION OF RATES ON SUCH GROSS
INCOME AS HEREINAFTER PROVIDED.  SUCH TAX SHALL BE LEVIED UPON THE
ENTIRE GROSS INCOME OF ALL RESIDENTS OF THE STATE OF INDIANA, AND UPON
THE GROSS INCOME DERIVED FROM SOURCES WITHIN THE STATE OF INDIANA, OF
ALL PERSONS AND/OR COMPANIES, INCLUDING BANKS, WHO ARE NOT RESIDENTS OF
THE STATE OF INDIANA, BUT ARE ENGAGED IN BUSINESS IN THIS STATE, OR WHO
DERIVE GROSS INCOME FROM SOURCES WITHIN THIS STATE, AND SHALL BE IN
ADDITION TO ALL OTHER TAXES NOW OR HEREAFTER IMPOSED WITH RESPECT TO
PARTICULAR OCCUPATIONS AND/OR ACTIVITIES."  THE LANGUAGE OF THIS

SEC. 6(A) OF THE ACT EXEMPTED "SO MUCH OF SUCH GROSS INCOME AS IS
DERIVED FROM BUSINESS CONDUCTED IN COMMERCE BETWEEN THIS STATE AND
OTHER STATES OF THE UNITED STATES, OR BETWEEN THIS STATE AND FOREIGN
COUNTRIES, TO THE EXTENT TO WHICH THE STATE OF INDIANA IS PROHIBITED
FROM TAXING UNDER THE CONSTITUTION OF THE UNITED STATES OF AMERICA." 
AND SEE L. 1937, C. 117, SEC. 6, P. 615. 

FN5  SEE L. ILL. 1943, P. 1121, SEC. 1 B, AMENDING L. ILL. 1933, P.
924. 

MR. JUSTICE JACKSON DISSENTS. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE, CONCURRING IN NO. 355(THIS CASE) AND NO. 441,
ANTE, P. 335, AND DISSENTING IN NO. 311, ANTE, P. 327: 

THESE THREE CASES PRESENT IN VARIOUS APPLICATIONS THE QUESTION OF THE
POWER OF A STATE TO TAX TRANSACTIONS HAVING A CLOSE CONNECTION WITH
INTERSTATE COMMERCE. 

IN NO. 311, MCLEOD V. J.E. DILWORTH CO., ANTE, P. 327, ARKANSAS HAS
CONSTRUED ITS TAX TO BE A SALES TAX, BUT HAS HELD THIS CANNOT BE
APPLIED WHERE A TENNESSEE CORPORATION, HAVING ITS HOME OFFICE AND PLACE
OF BUSINESS IN MEMPHIS, SOLICITS ORDERS IN ARKANSAS, BY MAIL, TELEPHONE
OR SENDING SOLICITORS REGULARLY FROM TENNESSEE, ACCEPTS THE ORDERS IN
MEMPHIS, AND DELIVERS THE GOODS THERE TO THE CARRIER FOR SHIPMENT TO
THE PURCHASER IN ARKANSAS.  THIS COURT HOLDS THE TAX INVALID, BECAUSE
"THE SALE - THE TRANSFER OF OWNERSHIP - WAS MADE IN TENNESSEE.  FOR
ARKANSAS TO IMPOSE A TAX ON SUCH TRANSACTION WOULD BE TO PROJECT ITS
POWERS BEYOND ITS BOUNDARIES AND TO TAX AN INTERSTATE TRANSACTION." 
THOUGH AN ARKANSAS "USE TAX" MIGHT BE SUSTAINED IN THE SAME SITUATION,
"WE ARE NOT DEALING WITH MATTERS OF NOMENCLATURE EVEN THOUGH THEY BE
MATTERS OF NICETY."  AND THE CASE IS THOUGHT TO BE DIFFERENT FROM THE
BERWIND-WHITE CASE, 309 U.S. 33, WHERE NEW YORK CITY LEVIED THE TAX,
BECAUSE, IN THE ARKANSAS COURT'S LANGUAGE, "THE CORPORATION MAINTAINED
ITS SALES OFFICE IN NEW YORK CITY, TOOK ITS CONTRACTS IN NEW YORK CITY
AND MADE ACTUAL DELIVERY IN NEW YORK CITY.  ...  " 

ON THE OTHER HAND, IN NO. 441, GENERAL TRADING CO. V. STATE TAX
COMMISSION, ANTE, P. 335, IOWA APPLIES ITS "USE TAX" TO A TRANSACTION
IN WHICH A MINNESOTA CORPORATION SHIPS GOODS FROM MINNESOTA, ITS ONLY
PLACE OF BUSINESS, TO IOWA PURCHASERS ON ORDERS SOLICITED IN IOWA BY
SALESMEN SENT THERE REGULARLY FROM MINNESOTA FOR THAT PURPOSE, THE
ORDERS BEING ACCEPTED IN MINNESOTA.  THIS TAX THE COURT SUSTAINS. 
WHILE "NO STATE CAN TAX THE PRIVILEGE OF DOING INTERSTATE BUSINESS, ...
THE MERE FACT THAT PROPERTY IS USED FOR INTERSTATE COMMERCE OR HAS
COME INTO AN OWNER'S POSSESSION AS A RESULT OF INTERSTATE COMMERCE DOES
NOT DIMINISH THE PROTECTION WHICH IT MAY DRAW FROM A STATE TO THE
UPKEEP OF WHICH IT MAY BE ASKED TO BEAR ITS FAIR SHARE.  BUT A FAIR
SHARE PRECLUDES LEGISLATION OBVIOUSLY HOSTILE OR PRACTICALLY
DISCRIMINATORY TOWARD INTERSTATE COMMERCE.  ...  NONE OF THESE
INFIRMITIES AFFECTS THE TAX IN THIS CASE.  ...  "  AND THE FOREIGN OR
NONRESIDENT SELLER WHO DOES NO MORE THAN SOLICIT ORDERS IN IOWA, AS THE
TENNESSEE SELLER DOES IN ARKANSAS, MAY BE MADE THE STATE'S TAX
COLLECTOR. 

IN NO. 355, INTERNATIONAL HARVESTER CO. V. DEPT. OF TREASURY, ANTE,
P. 340, THE STATE APPLIES ITS GROSS INCOME TAX, AMONG OTHER SITUATIONS,
TO ONE (CLASS D) WHERE A FOREIGN CORPORATION AUTHORIZED TO DO AND DOING
BUSINESS IN INDIANA SELLS AND DELIVERS ITS PRODUCT IN INDIANA TO OUT-OF
STATE CUSTOMERS WHO COME INTO THE STATE FOR THE TRANSACTION.  THE COURT
SUSTAINS THE TAX AS APPLIED. 

                                  I. 

FOR CONSTITUTIONAL PURPOSES, I SEE NO DIFFERENCE BUT ONE OF WORDS AND
POSSIBLY ONE OF THE SCOPE OF COVERAGE BETWEEN THE ARKANSAS TAX IN NO.
311 AND THE IOWA TAX IN NO. 441.  THIS IS TRUE WHETHER THE ISSUE IS ONE
OF DUE PROCESS OR ONE OF UNDUE BURDEN ON INTERSTATE COMMERCE.  EACH TAX
IS IMPOSED BY THE CONSUMING STATE.  ON THE RECORDS HERE, EACH HAS A DUE
PROCESS CONNECTION WITH THE TRANSACTION IN THAT FACT AND IN THE
REGULAR, CONTINUOUS SOLICITATION THERE.  NEITHER LAYS A GREATER BURDEN
ON THE INTERSTATE BUSINESS INVOLVED THAN IT DOES ON WHOLLY INTRASTATE
BUSINESS OF THE SAME SORT.  NEITHER SEGREGATES THE INTERSTATE
TRANSACTION FOR SEPARATE OR SPECIAL TREATMENT.  IN EACH INSTANCE
THEREFORE INTERSTATE AND INTRASTATE BUSINESS REACH THESE MARKETS ON
IDENTICAL TERMS, SO FAR AS THE EFFECTS OF THE STATE TAXES ARE
CONCERNED. 

AND IN MY OPINION THEY DO SO UNDER IDENTICAL MATERIAL CIRCUMSTANCES. 
IN BOTH CASES THE SELLERS ARE "NONRESIDENTS" OF THE TAXING STATE,
FOREIGN CORPORATIONS.  NEITHER SELLER MAINTAINS AN OFFICE OR A PLACE OF
BUSINESS THERE.  EACH HAS THESE FACILITIES SOLELY IN THE STATE OF
ORIGIN.  IN BOTH CASES THE ORDERS ARE TAKEN BY SOLICITORS SENT
REGULARLY TO THE TAXING STATE FOR THAT PURPOSE.  IN BOTH THE ORDERS ARE
ACCEPTED AT THE HOME OFFICE IN THE STATE OF ORIGIN.  AND IN BOTH THE
GOODS ARE SHIPPED BY DELIVERY TO THE CARRIER OR THE POST IN THE STATE
OF ORIGIN FOR CARRIAGE ACROSS THE STATE LINE AND DELIVERY BY IT TO THE
PURCHASER IN HIS TAXING STATE. 

IN THE FACE OF SUCH IDENTITIES IN CONNECTIONS AND EFFECTS, IT IS HARD
TO SEE HOW ONE TAX CAN BE UPHELD AND THE OTHER VOIDED.  SURELY THE
STATE'S POWER TO TAX IS NOT TO TURN ON THE TECHNICAL LEGAL EFFECT,
RELEVANT FOR OTHER PURPOSES BUT NOT FOR THIS, THAT "TITLE PASSES" ON
DELIVERY TO THE CARRIER IN MEMPHIS AND MAY OR MAY NOT SO PASS, SO FAR
AS THE RECORD SHOWS, WHEN THE MINNESOTA SHIPMENT IS MADE TO IOWA.  IN
THE ABSENCE OF OTHER AND MORE SUBSTANTIAL DIFFERENCE, THAT IRRELEVANT
TECHNICAL CONSIDERATION SHOULD NOT CONTROL.  HOWEVER IT MAY BE
DETERMINED FOR LOCATING THE INCIDENCE OF LOSS IN TRANSIT OR OTHER
QUESTIONS ARISING AMONG BUYER, SELLER AND CARRIER, FOR PURPOSES OF
TAXATION THAT FACTOR ALONE IS A WILL-O'-THE-WISP, INSUFFICIENT TO CRUX
A DUE PROCESS CONNECTION FROM SELLING TO CONSUMING STATE AND INCAPABLE
OF INCREASING OR REDUCING ANY BURDEN THE TAX MAY PLACE UPON THE
INTERSTATE TRANSACTION. 

THE ONLY OTHER DIFFERENCE IS IN THE TERMS USED BY IOWA AND ARKANSAS,
RESPECTIVELY, TO DESCRIBE THEIR TAXES.  FOR REASONS OF HER OWN ARKANSAS
DESCRIBES HER TAX AS A "SALES TAX."  IOWA CALLS HERS A "USE TAX."  THIS
COURT NOW IS COMMITTED TO THE VALIDITY OF "USE" TAXES:  HENNEFORD V.
SILAS MASON CO., 300 U.S. 577; FELT & TARRANT MANUFACTURING CO. V.
GALLAGHER, 306 U.S. 62; NELSON V. SEARS, ROEBUCK & CO., 312 U.S. 359;
NELSON V. MONTGOMERY WARD & CO., 312 U.S. 373.  SIMILARLY, "SALES
TAXES" ON "INTERSTATE SALES" HAVE BEEN SUSTAINED.  IN MCGOLDRICK V.
BERWIND-WHITE COAL MINING CO., 309 U.S. 33, SUCH A TAX APPLIED BY THE
STATE OF THE MARKET WAS UPHELD.  COMPARE BANKER BROTHERS CO. V.
PENNSYLVANIA, 222 U.S. 210; WILOIL CORP. V. PENNSYLVANIA, 294 U.S.
169.  OTHER THINGS BEING THE SAME, CONSTITUTIONALITY SHOULD NOT TURN ON
WHETHER ONE NAME OR THE OTHER IS APPLIED BY THE STATE.  WISCONSIN V.
J.C. PENNEY CO., 311 U.S. 435.  THE DIFFERENCE MAY BE IMPORTANT FOR THE
SCOPE OF THE STATUTE'S APPLICATION, THAT IS, WHETHER IT IS INTENDED TO
APPLY TO SOME TRANSACTIONS BUT NOT TO OTHERS THAT ARE WITHIN REACH OF
THE STATE'S TAXING POWER.  IT HARDLY CAN DETERMINE WHETHER THE POWER
EXISTS. 

                             II. 

THE COURT'S DIFFERENT TREATMENT OF THE TWO TAXES DOES NOT RESULT FROM
ANY SUBSTANTIAL DIFFERENCE IN THE FACTS UNDER WHICH THEY ARE LEVIED OR
THE EFFECTS THEY MAY HAVE ON INTERSTATE TRADE.  IT ARISES RATHER FROM
APPLYING DIFFERENT CONSTITUTIONAL PROVISIONS TO THE SUBSTANTIALLY
IDENTICAL TAXES, IN THE ONE CASE TO INVALIDATE THAT OF ARKANSAS, IN THE
OTHER TO SUSTAIN THAT OF IOWA.  DUE PROCESS DESTROYS THE FORMER. 
ABSENCE OF UNDUE BURDEN UPON INTERSTATE COMMERCE SUSTAINS THE LATTER. 

IT WOULD SEEM OBVIOUS THAT NEITHER TAX OF ITS OWN FORCE CAN IMPOSE A
GREATER BURDEN UPON THE INTERSTATE TRANSACTION TO WHICH IT APPLIES THAN
IT PLACES UPON THE WHOLLY LOCAL TRADE OF THE SAME CHARACTER WITH WHICH
THAT TRANSACTION COMPETES.  BY PAYING THE ARKANSAS TAX THE TENNESSEE
SELLER WILL PAY NO MORE THAN AN ARKANSAS SELLER OF THE SAME GOODS TO
THE SAME ARKANSAS BUYER; AND THE LATTER WILL PAY NO MORE TO THE
TENNESSEE SELLER THAN TO AN ARKANSAS VENDOR, ON ACCOUNT OF THE TAX, IN
ABSORBING ITS BURDEN.  THE SAME THING IS TRUE OF THE IOWA TAX IN ITS
INCIDENCE UPON THE SALE BY THE MINNESOTA VENDOR.  THE CASES ARE NOT
DIFFERENT IN THE BURDEN THE TWO TAXES PLACE UPON THE INTERSTATE
TRANSACTIONS.  NOR IN MY OPINION ARE THEY DIFFERENT IN THE EXISTENCE OF
DUE PROCESS TO SUSTAIN THE TAXES. 

"DUE PROCESS" AND "COMMERCE CLAUSE" CONCEPTIONS ARE NOT ALWAYS
SHARPLY SEPARABLE IN DEALING WITH THESE PROBLEMS.  CF. E.G., WESTERN
UNION TELEGRAPH CO. V. KANSAS, 216 U.S. 1.  TO SOME EXTENT THEY
OVERLAP.  IF THERE IS A WANT OF DUE PROCESS TO SUSTAIN THE TAX, BY THAT
FACT ALONE ANY BURDEN THE TAX IMPOSES ON THE COMMERCE AMONG THE STATES
BECOMES "UNDUE."  BUT, THOUGH OVERLAPPING, THE TWO CONCEPTIONS ARE NOT
IDENTICAL.  THERE MAY BE MORE THAN SUFFICIENT FACTUAL CONNECTIONS, WITH
ECONOMIC AND LEGAL EFFECTS, BETWEEN THE TRANSACTION AND THE TAXING
STATE TO SUSTAIN THE TAX AS AGAINST DUE PROCESS OBJECTIONS.  YET IT MAY
FALL BECAUSE OF ITS BURDENING EFFECT UPON THE COMMERCE.  AND, ALTHOUGH
THE TWO NOTIONS CANNOT ALWAYS BE SEPARATED, CLARITY OF CONSIDERATION
AND OF DECISION WOULD BE PROMOTED IF THE TWO ISSUES ARE APPROACHED,
WHERE THEY ARE PRESENTED, AT LEAST TENTATIVELY AS IF THEY WERE SEPARATE
AND DISTINCT, NOT INTERMINGLED ONES. 

THUS, IN THE CASE FROM ARKANSAS NO MORE THAN IN THAT FROM IOWA SHOULD
THERE BE DIFFICULTY IN FINDING DUE PROCESS CONNECTIONS WITH THE TAXING
STATE SUFFICIENT TO SUSTAIN THE TAX.  AS IN THE IOWA CASE, THE GOODS
ARE SOLD AND SHIPPED TO ARKANSAS BUYERS.  ARKANSAS IS THE CONSUMING
STATE, THE MARKET THESE GOODS SEEK AND FIND.  THEY FIND IT BY VIRTUE OF
A CONTINUOUS COURSE OF SOLICITATION THERE BY THE TENNESSEE SELLER.  THE
OLD NOTION THAT "MERE SOLICITATION" IS NOT "DOING BUSINESS" WHEN IT IS
REGULAR, CONTINUOUS AND PERSISTENT IS FAST LOSING ITS FORCE.  IN THE
GENERAL TRADING CASE IT LOSES FORCE ALTOGETHER, FOR THE IOWA STATUTE
DEFINES THIS PROCESS IN TERMS AS "A RETAILER MAINTAINING A PLACE OF
BUSINESS IN THIS STATE."  FN1  THE IOWA SUPREME COURT SUSTAINS THE
DEFINITION AND THIS COURT GIVES EFFECT TO ITS DECISION IN UPHOLDING THE
TAX.  FICTION THE DEFINITION MAY BE; BUT IT IS FICTION WITH SUBSTANCE
BECAUSE, FOR EVERY RELEVANT CONSTITUTIONAL CONSIDERATION AFFECTING
TAXATION OF TRANSACTIONS, REGULAR, CONTINUOUS, PERSISTENT SOLICITATION
HAS THE SAME ECONOMIC, AND SHOULD HAVE THE SAME LEGAL, CONSEQUENCES AS
DOES MAINTAINING AN OFFICE FOR SOLICITING AND EVEN CONTRACTING PURPOSES
OR MAINTAINING A PLACE OF BUSINESS, WHERE THE GOODS ACTUALLY ARE
SHIPPED INTO THE STATE FROM WITHOUT FOR DELIVERY TO THE PARTICULAR
BUYER.  THERE IS NO DIFFERENCE BETWEEN THE IOWA AND THE ARKANSAS
SITUATIONS IN THIS RESPECT.  BOTH INVOLVE CONTINUOUS, REGULAR, AND NOT
INTERMITTENT OR CASUAL COURSES OF SOLICITATION.  BOTH INVOLVE THE
SHIPMENT OF GOODS FROM WITHOUT TO A BUYER WITHIN THE STATE.  BOTH
INVOLVE TAXATION BY THE STATE OF THE MARKET.  AND IF THESE SUBSTANTIAL
CONNECTIONS ARE SUFFICIENT TO UNDERPIN THE TAX WITH DUE PROCESS IN THE
ONE CASE, THEY ARE ALSO IN THE OTHER.    THAT IS TRUE, IF LABELS ARE
NOT TO CONTROL, UNLESS SOMETHING WHICH HAPPENS OR MAY HAPPEN OUTSIDE
THE TAXING STATE OPERATES IN THE ONE CASE TO DEFEAT THE JURISDICTION,
BUT DOES NOT DEFEAT IT IN THE OTHER. 

AS I READ THE COURT'S OPINION, THOUGH IT DOES NOT EXPLICITLY SO
STATE, THE ARKANSAS TAX FALLS BECAUSE TENNESSEE COULD TAX THE
TRANSACTION AND, AS BETWEEN THE TWO STATES, HAS EXCLUSIVE POWER TO DO
SO.  THIS IS BECAUSE "THE SALE - THE TRANSFER OF OWNERSHIP - WAS MADE
IN TENNESSEE."  ARKANSAS RELATION TO THE TRANSACTION IS
CONSTITUTIONALLY DIFFERENT FROM THAT OF NEW YORK IN THE BERWIND-WHITE
CASE, THOUGH BOTH ARE THE STATE OF THE MARKET, BECAUSE THE BERWIND
WHITE COMPANY "MAINTAINED ITS SALES OFFICE IN NEW YORK CITY, TOOK ITS
CONTRACTS IN NEW YORK CITY AND MADE ACTUAL DELIVERY IN NEW YORK CITY." 
THIS "CONSTITUTED A SALE IN NEW YORK AND ACCORDINGLY WE SUSTAINED A
RETAIL SALES TAX BY NEW YORK."  SO HERE THE COMPANY'S "OFFICES ARE
MAINTAINED IN TENNESSEE, THE SALE IS MADE IN TENNESSEE, AND THE
DELIVERY IS CONSUMMATED EITHER IN TENNESSEE OR IN INTERSTATE COMMERCE. 
...  "  THE INEVITABLE CONCLUSION, IT SEEMS TO ME, IS THAT THE COURT IS
DECIDING NOT ONLY THAT ARKANSAS CANNOT TAX THE TRANSACTION, BUT THAT
TENNESSEE CAN TAX IT AND IS THE ONLY STATE WHICH CAN DO SO.  TO PUT THE
MATTER SHORTLY, ARKANSAS CANNOT LEVY THE TAX BECAUSE TENNESSEE CAN LEVY
IT.  HENCE "FOR ARKANSAS TO IMPOSE A TAX ON SUCH TRANSACTION WOULD BE
TO PROJECT ITS POWERS BEYOND ITS BOUNDARIES AND TO TAX AN INTERSTATE
TRANSACTION." 

THIS STATEMENT OF THE MATTER APPEARS TO BE A COMPOSITE OF DUE PROCESS
AND COMMERCE CLAUSE IDEAS.  IF SO, IT IS HARD TO SEE WHY THE SAME
CONSIDERATIONS DO NOT NULLIFY IOWA'S POWER TO LEVY HER TAX IN THE
IDENTICAL CIRCUMSTANCES AND VEST EXCLUSIVE JURISDICTION IN MINNESOTA TO
TAX THESE TRANSACTIONS.  FOR IN THE IOWA CASE THE SELLING CORPORATION
MAINTAINS ITS OFFICE AND PLACE OF BUSINESS IN MINNESOTA, ACCEPTS THE
ORDERS THERE, AND THE DELIVERY, WHICH IS TO CARRIER OR POST, IS
CONSUMMATED, SO FAR AS THE RECORD SHOWS, EXACTLY IN THE MANNER IT IS
MADE IN THE TENNESSEE-ARKANSAS TRANSACTION.  IF THESE FACTS NULLIFY
ARKANSAS' POWER TO TAX THE TRANSACTION BY VESTING EXCLUSIVE
JURISDICTION IN TENNESSEE, IT WOULD SEEM A FORTIORI THEY WOULD NULLIFY
IOWA'S POWER AND GIVE MINNESOTA EXCLUSIVE JURISDICTION TO TAX THE
TRANSACTIONS THERE INVOLVED.  UNLESS THE SHEER DIFFERENCE IN THE TERMS
"SALE" AND "USE," AND WHATEVER DIFFERENCE THESE MIGHT MAKE AS A MATTER
OF LEGISLATIVE SELECTION OF THE TRANSACTIONS WHICH ARE TO BEAR THE TAX,
ARE TO CONTROL UPON THE EXISTENCE OF THE POWER TO TAX, THE RESULT
SHOULD BE THE SAME IN BOTH CASES. 

MERELY AS A MATTER OF DUE PROCESS, IT IS HARD TO SEE WHY ANY OF THE
FOUR STATES CANNOT TAX THE TRANSACTIONS THESE CASES INVOLVE.  EACH HAS
SUBSTANTIAL RELATIONS AND CONNECTIONS WITH THE TRANSACTION, THE STATE
OF MARKET NOT LESS IN EITHER CASE THAN THE STATE OF ORIGIN.  IT "SOUNDS
BETTER" FOR THE STATE OF ORIGIN TO CALL ITS TAX A "SALES TAX" AND THE
STATE OF MARKET TO NAME ITS TAX A "USE TAX."  BUT IN THE BERWIND-WHITE
CASE THE LATTER'S "SALES TAX" WAS SUSTAINED, WHERE IT IS TRUE MORE OF
THE INCIDENTS OF SALE CONJOINED WITH THE LOCATION OF THE PLACE OF
MARKET THAN DO IN EITHER NO. 311 OR NO. 441.  IF THIS IS THE
DISTINGUISHING FACTOR, AS IT MIGHT BE FOR SELECTING ONE OF THE TWO
CONNECTED JURISDICTIONS FOR EXCLUSIVE TAXING POWER, IT IS NOT ONE WHICH
APPLIES TO EITHER OF THESE TRANSACTIONS.  THE IDENTITY IS NOT BETWEEN
THE DILWORTH CASE AND BERWIND-WHITE.  IT IS RATHER BETWEEN DILWORTH AND
GENERAL TRADING, WITH BERWIND-WHITE DIFFERING FROM BOTH.  AND, SO FAR
AS DUE PROCESS ALONE IS CONCERNED, IT SHOULD MAKE NO DIFFERENCE WHETHER
THE TAX IN THE ONE CASE IS LAID BY ARKANSAS OR TENNESSEE AND IN THE
OTHER BY IOWA OR MINNESOTA.  EACH STATE HAS A SUFFICIENTLY SUBSTANTIAL
AND CLOSE CONNECTION WITH THE TRANSACTION, WHETHER BY VIRTUE OF TAX
BENEFITS CONFERRED IN GENERAL POLICE PROTECTION AND OTHERWISE OR ON
ACCOUNT OF IDEAS OF TERRITORIAL SOVEREIGNTY CONCERNING OCCURRENCE OF
"TAXABLE INCIDENTS" WITHIN ITS BORDERS, TO FURNISH THE DUE PROCESS
FOUNDATION NECESSARY TO SUSTAIN THE EXERCISE OF ITS TAXING POWER. 
WHETHER IT EXERTS THIS BY SELECTING FOR "IMPINGEMENT" OF THE TAX SOME
FEATURE OR INCIDENT OF THE TRANSACTION WHICH IT DENOMINATES "SALE" OR
"USE" IS BOTH ILLUSORY AND UNIMPORTANT IN ANY BEARING UPON ITS
CONSTITUTIONAL AUTHORITY AS A MATTER OF DUE PROCESS.  IF THIS HAS ANY
SUBSTANTIVE EFFECT, IT IS MERELY ONE OF LEGISLATIVE INTENT IN SELECTING
THE TRANSACTIONS TO BEAR THE TAX AND THUS FIXING THE SCOPE OF ITS
COVERAGE, NOT ONE OF CONSTITUTIONAL POWER.  "USE" MAY COVER MORE
TRANSACTIONS WITH WHICH A STATE HAS DUE PROCESS CONNECTIONS THAN
"SALE."  BUT WHENEVER SALE OCCURS AND IS TAXED THE TAX BEARS EQUALLY,
IN FINAL INCIDENCE OF BURDEN, UPON THE USE WHICH FOLLOWS IMMEDIATELY
UPON IT. 

THE GREAT DIFFICULTY IN ALLOCATING TAXING POWER AS A MATTER OF DUE
PROCESS BETWEEN THE STATE OF ORIGIN AND THE STATE OF MARKET ARISES FROM
THE FACT THAT EACH STATE, CONSIDERED WITHOUT REFERENCE TO THE OTHER,
ALWAYS HAS A SUFFICIENTLY SUBSTANTIAL RELATION IN FACT AND IN TAX
BENEFIT CONFERRED TO THE INTERSTATE TRANSACTION TO SUSTAIN AN EXERTION
OF ITS TAXING POWER, A FACT NOT ALWAYS RECOGNIZED.  AND FROM THIS
FAILURE, AS WELL AS FROM THE TERMS IN WHICH STATUTES NOT DIRECTED
SPECIFICALLY TO REACHING THESE TRANSACTIONS ARE CAST, COMES THE SEARCH
FOR SOME "TAXABLE INCIDENT TAKING PLACE WITHIN THE STATE'S BOUNDARIES"
AS A HOOK FOR HANGING CONSTITUTIONALITY UNDER DUE PROCESS IDEAS. 
"TAXABLE INCIDENT" THERE MUST BE.  BUT TO TAKE WHAT IS IN ESSENCE AND
TOTALITY AN INTERSTATE TRANSACTION BETWEEN A STATE OF ORIGIN AND ONE OF
MARKET AND HANG THE TAXING POWER OF EITHER STATE UPON SOME SEGMENTED
INCIDENT OF THE WHOLE AND DECLARE THAT THIS DOES OR DOES NOT "TAX AN
INTERSTATE TRANSACTION" IS TO DO TWO THINGS.  IT IS FIRST TO IGNORE
THAT ANY TAX HUNG ON SUCH AN INCIDENT IS LEVIED ON AN INTERSTATE
TRANSACTION.  FOR THE PART CANNOT BE SEPARATED FROM THE WHOLE.  IT IS
ALSO TO IGNORE THE FACT THAT EACH STATE, WHETHER OF ORIGIN OR OF
MARKET, HAS BY THAT ONE FACT ALONE A RELATION TO THE WHOLE TRANSACTION
SO SUBSTANTIAL AS TO NULLIFY ANY DUE PROCESS PROHIBITION.  WHETHER THE
TAX IS LEVIED ON THE "SALE" OR ON THE "USE," BY THE ONE STATE OR BY THE
OTHER, IT IS IN FACT AND EFFECT A TAX LEVIED ON AN INTERSTATE
TRANSACTION.  NOTHING IN DUE PROCESS REQUIREMENTS PROHIBITS EITHER
STATE TO LEVY EITHER SORT OF TAX ON SUCH TRANSACTIONS.  THAT TENNESSEE
THEREFORE MAY TAX THIS TRANSACTION BY A SALES TAX DOES NOT, IN ANY
PROPER CONCEPTION OF DUE PROCESS, DEPRIVE ARKANSAS OF THE SAME POWER. 

        III. 

WHEN, HOWEVER, THE ISSUE IS TURNED FROM DUE PROCESS TO THE
PROHIBITIVE EFFECT OF THE COMMERCE CLAUSE, MORE SUBSTANTIAL
CONSIDERATIONS ARISE FROM THE FACT THAT BOTH THE STATE OF ORIGIN AND
THAT OF MARKET EXERT OR MAY EXERT THEIR TAXING POWERS UPON THE
INTERSTATE TRANSACTION.  THE LONG HISTORY OF THIS PROBLEM BOILS DOWN IN
GENERAL STATEMENT TO THE FORMULA THAT THE STATES, BY VIRTUE OF THE
FORCE OF THE COMMERCE CLAUSE, MAY NOT UNDULY BURDEN INTERSTATE
COMMERCE.  THIS RESOLVES ITSELF INTO VARIOUS COROLLARY FORMULATIONS. 
ONE IS THAT A STATE MAY NOT SINGLE OUT INTERSTATE COMMERCE FOR SPECIAL
TAX BURDEN.  MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S. 33,
55-56.  NOR MAY IT DISCRIMINATE AGAINST INTERSTATE COMMERCE AND IN
FAVOR OF ITS LOCAL TRADE.  WELTON V. MISSOURI, 91 U.S. AT 275; GUY V.
BALTIMORE, 100 U.S. 434; VOIGHT V. WRIGHT, 141 U.S. 62.  AGAIN, THE
STATE MAY NOT IMPOSE CUMULATIVE BURDENS UPON INTERSTATE TRADE OR
COMMERCE.  GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S. 434; ADAMS MFG.
CO. V. STOREN, 304 U.S. 307.  THUS, THE STATE MAY NOT IMPOSE CERTAIN
TAXES ON INTERSTATE COMMERCE, ITS INCIDENTS OR INSTRUMENTALITIES, WHICH
ARE NO MORE IN AMOUNT OR BURDEN THAN IT PLACES ON ITS LOCAL BUSINESS,
NOT BECAUSE THIS OF ITSELF IS DISCRIMINATORY, CUMULATIVE OR SPECIAL OR
WOULD VIOLATE DUE PROCESS, BUT BECAUSE OTHER STATES ALSO MAY HAVE THE
RIGHT CONSTITUTIONALLY, APART FROM THE COMMERCE CLAUSE, TO TAX THE SAME
THING AND EITHER THE ACTUALITY OR THE RISK OF THEIR DOING SO MAKES THE
TOTAL BURDEN CUMULATIVE, DISCRIMINATORY OR SPECIAL.  FN2 

IN THESE INTERSTATE TRANSACTIONS CASES INVOLVING TAXATION BY THE
STATE OF ORIGIN OR THAT OF MARKET, THE TROUBLE ARISES, UNDER THE
COMMERCE CLAUSE, NOT FROM ANY DANGER THAT EITHER TAX TAKEN ALONE,
WHETHER CHARACTERIZED AS "SALES" OR "USE" TAX, WILL PUT INTERSTATE
TRADE AT A DISADVANTAGE WHICH WILL BURDEN UNDULY ITS COMPETITION WITH
THE LOCAL TRADE.  SO LONG AS ONLY ONE TAX IS APPLIED AND AT THE SAME
RATE AS TO WHOLLY LOCAL TRANSACTIONS, NO UNDULY DISCRIMINATORY CLOG
ACTUALLY ATTACHES TO THE INTERSTATE TRANSACTION OF BUSINESS. 

THE REAL DANGER ARISES MOST OBVIOUSLY WHEN BOTH STATES LEVY THE TAX. 
THUS, IF IN THE INSTANT CASES IT WERE SHOWN THAT, ON THE ONE HAND,
ARKANSAS AND IOWA ACTUALLY WERE APPLYING A "USE" TAX AND TENNESSEE AND
MINNESOTA A "SALES" TAX, SO THAT IN EACH CASE THE INTERSTATE
TRANSACTION WERE TAXED AT BOTH ENDS, THE HEAVIER CUMULATIVE BURDEN THUS
BORNE BY THE INTERSTATE BUSINESS IN COMPARISON WITH THE LOCAL TRADE IN
EITHER STATE WOULD BE OBVIOUS.  IF IN EACH CASE THE STATE OF ORIGIN
WERE SHOWN TO IMPOSE A SALES TAX OF THREE PER CENT AND THE STATE OF
MARKET A USE TAX OF THE SAME AMOUNT, INTERSTATE TRANSACTIONS BETWEEN
THE TWO OBVIOUSLY WOULD BEAR DOUBLE THE LOCAL TAX BURDEN BORNE BY LOCAL
TRADE IN EACH STATE.  THIS IS A DIFFERENCE OF SUBSTANCE, NOT MERELY ONE
OF NAMES, RELEVANT TO THE PROBLEM CREATED BY THE COMMERCE CLAUSE,
THOUGH NOT TO THAT OF "JURISDICTION" UNDER DUE PROCESS CONCEPTIONS. 
AND THE DIFFERENCE WOULD BE NO LESS SUBSTANTIAL IF THE TAXES LEVIED BY
BOTH THE STATE OF ORIGIN AND THAT OF MARKET WERE CALLED "SALES" TAXES
OR IF, INDEED, BOTH WERE CALLED "USE" TAXES. 

THE IOWA TAX IN NO. 441 AVOIDS THIS PROBLEM BY ALLOWING CREDIT FOR
ANY SALES TAX SHOWN TO BE LEVIED UPON THE TRANSACTION WHETHER IN IOWA
OR ELSEWHERE.  CLEARLY THEREFORE THAT TAX CANNOT IN FACT PUT THE
INTERSTATE TRANSACTION AT A TAX DISADVANTAGE WITH LOCAL TRADE DONE IN
IOWA OR ELSEWHERE.  FN3 

HOWEVER, THE ARKANSAS TAX IN NO. 311 PROVIDES FOR NO SUCH CREDIT. 
BUT IN THAT CASE THERE IS NO SHOWING THAT TENNESSEE ACTUALLY IMPOSES
ANY TAX UPON THE TRANSACTION.  IF THERE IS A BURDEN OR CLOG ON
COMMERCE, THEREFORE, IT ARISES FROM THE FACT THAT TENNESSEE HAS POWER
CONSTITUTIONALLY TO IMPOSE A TAX, MAY EXERCISE IT, AND WHEN THIS OCCURS
THE CUMULATIVE EFFECT OF BOTH TAXES WILL BE DISCRIMINATORILY
BURDENSOME, THOUGH NEITHER TAX SINGLES OUT THE TRANSACTION OR BEARS
UPON IT MORE HEAVILY THAN UPON THE LOCAL TRADE TO WHICH IT APPLIES.  IN
SHORT, THE RISK OF MULTIPLE TAXATION CREATES THE UNCONSTITUTIONAL
BURDEN WHICH ACTUAL TAXATION BY BOTH STATES WOULD IMPOSE IN FACT. 

IN MY OPINION THIS IS THE REAL QUESTION AND THE ONLY ONE PRESENTED IN
NO. 311.  AND IN MY JUDGMENT IT IS DETERMINED THE WRONG WAY, NOT ON
COMMERCE CLAUSE GROUNDS BUT UPON AN UNSUSTAINABLE APPLICATION OF THE
DUE PROCESS PROHIBITION. 

WHERE THE CUMULATIVE EFFECT OF TWO TAXES, BY WHATEVER NAME CALLED,
ONE IMPOSED BY THE STATE OF ORIGIN, THE OTHER BY THE STATE OF MARKET,
ACTUALLY BEARS IN PRACTICAL EFFECT UPON SUCH AN INTERSTATE TRANSACTION,
THERE IS NO ESCAPE UNDER THE DOCTRINE OF UNDUE BURDEN FROM ONE OF TWO
POSSIBLE ALTERNATIVES.  EITHER ONE TAX MUST FALL OR, WHAT IS THE SAME
THING, BE REQUIRED TO GIVE WAY TO THE OTHER BY ALLOWING CREDIT AS THE
IOWA TAX DOES, OR THERE MUST BE APPORTIONMENT.  EITHER SOLUTION
PRESENTS AN AWKWARD ALTERNATIVE.  BUT ONE OR THE OTHER MUST BE ACCEPTED
UNLESS THAT DOCTRINE IS TO BE DISCARDED AND ONE OF TWO EXTREME
POSITIONS TAKEN, NAMELY, THAT NEITHER STATE CAN TAX THE INTERSTATE
TRANSACTION OR THAT BOTH MAY DO SO UNTIL CONGRESS INTERVENES TO GIVE
ITS SOLUTION FOR THE PROBLEM.  IT IS TOO LATE TO ACCEPT THE FORMER
EXTREME, TOO EARLY EVEN IF IT WERE CLEARLY DESIRABLE OR PERMISSIBLE TO
FOLLOW THE LATTER. 

AS BETWEEN APPORTIONMENT AND REQUIRING ONE TAX TO FALL OR ALLOW
CREDIT, THE LATTER PERHAPS WOULD BE THE PREFERABLE SOLUTION.  AND IN MY
OPINION IT IS THE ONE WHICH THE COURT IN EFFECT, THOUGH NOT IN SPECIFIC
STATEMENT, ADOPTS.  THAT THE DECISION IS CAST MORE LARGELY IN TERMS OF
DUE PROCESS THAN IN THOSE OF THE COMMERCE CLAUSE DOES NOT NULLIFY THAT
EFFECT. 

IF IN THIS CASE IT WERE NECESSARY TO CHOOSE BETWEEN THE STATE OF
ORIGIN AND THAT OF MARKET FOR THE EXERCISE OF EXCLUSIVE POWER TO TAX,
OR FOR REQUIRING ALLOWANCE OF CREDIT IN ORDER TO AVOID THE CUMULATIVE
BURDEN, IN MY OPINION THE CHOICE SHOULD LIE IN FAVOR OF THE STATE OF
MARKET RATHER THAN THE STATE OF ORIGIN.  FN4  THE FORMER IS THE STATE
WHERE THE GOODS MUST COME IN COMPETITION WITH THOSE SOLD LOCALLY.  IT
IS THE ONE WHERE THE BURDEN OF THE TAX NECESSARILY WILL FALL EQUALLY ON
BOTH CLASSES OF TRADE.  TO CHOOSE THE TAX OF THE STATE OF ORIGIN
PRESENTS AT LEAST SOME POSSIBILITIES THAT THE BURDEN IT IMPOSES ON ITS
LOCAL TRADE, WITH WHICH THE INTERSTATE TRAFFIC DOES NOT COMPETE, AT ANY
RATE DIRECTLY, WILL BE HEAVIER THAN THAT PLACED BY THE CONSUMING STATE
ON ITS LOCAL BUSINESS OF THE SAME CHARACTER.  IF THEREFORE CHOICE HAS
TO BE MADE, WHETHER AS A MATTER OF EXCLUSIVE POWER TO TAX OR AS ONE OF
ALLOWING CREDIT, IT SHOULD BE IN FAVOR OF THE STATE OF MARKET OR
CONSUMPTION AS THE ONE MOST CERTAIN TO PLACE THE SAME TAX LOAD ON BOTH
THE INTERSTATE AND COMPETING LOCAL BUSINESS.  HENCE, IF THE RISK OF
TAXATION BY BOTH STATES MAY BE SAID TO HAVE THE SAME CONSTITUTIONAL
CONSEQUENCES, UNDER THE COMMERCE CLAUSE, AS TAXATION IN ACTUALITY BY
BOTH, THE ARKANSAS TAX, RATHER THAN THE POWER OF TENNESSEE TO TAX,
SHOULD STAND.    IT MAY BE THAT THE MERE RISK OF DOUBLE TAXATION WOULD
NOT HAVE THE SAME CONSEQUENCES, GIVEN ALWAYS OF COURSE A SUFFICIENT DUE
PROCESS CONNECTION WITH THE TAXING STATES, THAT ACTUAL DOUBLE TAXATION
HAS, OR MAY HAVE, FOR APPLICATION OF THE COMMERCE CLAUSE PROHIBITION. 
RISK OF COURSE IS NOT IRRELEVANT TO BURDEN OR TO THE CLOGGING EFFECT
THE RULE AGAINST UNDUE BURDEN IS INTENDED TO PREVENT.  BUT IN THESE
SITUATIONS IT MAY BE DOUBTED, ON ENTIRELY PRACTICAL GROUNDS, THAT THE
MERE RISK TENNESSEE MAY APPLY ITS TAXING POWER TO THESE TRANSACTIONS
WILL HAVE ANY SUBSTANTIAL EFFECT IN RESTRAINING THE COMMERCE SUCH AS
THE ACTUAL APPLICATION OF THAT POWER WOULD HAVE.  IN ANY EVENT, WHETHER
OR NOT THE CHOICE MUST BE MADE NOW OR, AS I THINK, HAS BEEN MADE, IT
SHOULD GO IN FAVOR OF ARKANSAS, NOT TENNESSEE. 

FOR ALL PRACTICAL PURPOSES INDIANA'S GROSS INCOME TAX IN NO. 355 MAY
BE REGARDED AS EITHER A SALES TAX OR A USE TAX LAID IN THE STATE OF
MARKET, COMPARABLE IN ALL RESPECTS (EXCEPT IN WORDS) TO THE ARKANSAS
TAX LAID IN NO. 311 AND TO THE IOWA TAX IMPOSED IN NO. 441, EXCEPT THAT
HERE THE SELLER AS WELL AS THE BUYER DOES BUSINESS AND CONCLUDES THE
TRANSACTION IN INDIANA, THE STATE OF THE MARKET.  THIS IS CLEARLY TRUE
OF CLASSES C AND E. IT IS TRUE ALSO OF CLASS D, IN MY OPINION, ALTHOUGH
THE BUYER THERE RESIDED IN ILLINOIS BUT WENT TO INDIANA TO ENTER INTO
THE TRANSACTION AND TAKE DELIVERY OF THE GOODS.  THAT HE AT ONCE
REMOVED THEM, ON COMPLETION OF THE TRANSACTION THERE, TO ILLINOIS,
INTENDED TO DO THIS FROM THE BEGINNING AND THIS FACT MAY HAVE BEEN
KNOWN TO THE SELLER, DOES NOT TAKE FROM THE TRANSACTION ITS CHARACTER
AS ONE ENTERED INTO AND COMPLETED IN INDIANA.  WHETHER OR NOT ILLINOIS,
IN THESE CIRCUMSTANCES, COULD IMPOSE A USE TAX OR SOME OTHER AS A
PROPERTY TAX IS NOT PRESENTED AND NEED NOT BE DETERMINED.  IF THE
ARKANSAS AND IOWA TAXES STAND, OR EITHER DOES, A FORTIORI THE INDIANA
TAX STANDS IN THESE APPLICATIONS. 

ACCORDINGLY, I CONCUR IN THE DECISIONS IN NOS. 441 AND 355, BUT
DISSENT FROM THE DECISION IN NO. 311. 

FN1  CF. FRENE V. LOUISVILLE CEMENT CO., 134 F.2D 511(APP.  D.C.). 

FN2  CF. THE OPINION OF THE CHIEF JUSTICE IN NORTHWEST AIRLINES V.
MINNESOTA, ANTE, P. 308. 

FN3  CF. TEXT INFRA AT NOTE 4 ET SEQ. 

FN4 CF. POWELL, NEW LIGHT ON GROSS RECEIPTS TAXES (1940) 53 HARV. L.
REV. 909; LOCKHART, THE SALES TAX IN INTERSTATE COMMERCE (1939) 52
HARV. L. REV. 617; COMPARE GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S.
434; ADAMS MFG. CO. V. STOREN, 304 U.S. 307. 
..END :













UNITED STATES V. HELLARD, 322 U.S. 363 


NO. 648.  ARGUED APRIL 28, 1944.  - DECIDED MAY 15, 1944.  - 138 F.2D
985, REVERSED. 


FULL-BLOOD INDIANS OF THE FIVE CIVILIZED TRIBES MAY NOT BE DIVESTED OF
TITLE TO RESTRICTED LAND BY A SALE PURSUANT TO A JUDGMENT OF A STATE
COURT IN A PARTITION PROCEEDING TO WHICH THE UNITED STATES WAS NOT A
PARTY.  CONSTRUING ACT OF JUNE 14, 1918; ACT OF APRIL 12, 1926.  P.
368. 

UNITED STATES V. HELLARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 321 U.S. 758, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
WHICH, IN A SUIT REMOVED FROM A STATE COURT TO THE FEDERAL COURT AND IN
WHICH THE UNITED STATES INTERVENED, QUIETED TITLE TO LANDS IN THE
RESPONDENT HERE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER FULL-BLOOD INDIANS OF THE FIVE
CIVILIZED TRIBES MAY BE DIVESTED OF TITLE TO RESTRICTED LAND BY A SALE
IN PARTITION PROCEEDINGS TO WHICH THE UNITED STATES IS NOT A PARTY. 

A FULL-BLOOD CREEK INDIAN DIED LEAVING HEIRS OF THE FULL BLOOD.  THEY
INHERITED CERTAIN LANDS FROM HER, LANDS WHICH WERE SUBJECT TO
RESTRICTIONS ON ALIENATION BOTH IN HER HANDS AND IN THE HANDS OF THE
HEIRS.  FN1  BY SEC. 2 OF THE ACT OF JUNE 14, 1918(25 U.S.C. SEC. 355,
40 STAT. 606) CONGRESS DECLARED THAT SUCH LANDS WERE "MADE SUBJECT TO
THE LAWS OF THE STATE OF OKLAHOMA, PROVIDING FOR THE PARTITION OF REAL
ESTATE."  FN2  BY SEC. 3 OF THE ACT OF APRIL 12, 1926(44 STAT. 239)
CONGRESS PROVIDED FOR THE SERVICE UPON THE SUPERINTENDENT FOR THE FIVE
CIVILIZED TRIBES OF A PRESCRIBED WRITTEN NOTICE OF THE PENDENCY OF ANY
SUIT TO WHICH A RESTRICTED MEMBER OF THE TRIBES IN OKLAHOMA OR THE
RESTRICTED HEIRS OR GRANTEES ARE PARTIES AND WHICH INVOLVES CLAIMS TO
"LANDS ALLOTTED TO A CITIZEN OF THE FIVE CIVILIZED TRIBES OR THE
PROCEEDS, ISSUES, RENTS, AND PROFITS DERIVED FROM THE SAME."  BY THAT
ACT THE UNITED STATES IS GIVEN AN OPPORTUNITY TO APPEAR IN THE CAUSE
AND IS BOUND BY THE JUDGMENT WHICH IS ENTERED. 

THE HEIRS INSTITUTED PARTITION PROCEEDINGS IN THE DISTRICT COURT FOR
CREEK COUNTY, OKLAHOMA IN MARCH 1940.  THE UNITED STATES WAS NOT NAMED
AS A PARTY NOR WAS NOTICE OF THE SUIT SERVED ON THE SUPERINTENDENT.  A
JUDGMENT OF PARTITION WAS ENTERED, PURSUANT TO WHICH THE LAND WAS SOLD
AND A SHERIFF'S DEED IN PARTITION ISSUED TO RESPONDENT.  IN 1941
RESPONDENT INSTITUTED IN THE SAME COURT THE PRESENT ACTION AGAINST THE
INDIAN HEIRS TO QUIET HIS TITLE.  NOTICE WAS SERVED ON THE
SUPERINTENDENT.  THE HEIRS ANSWERED DISCLAIMING ANY INTEREST.  AT THE
INSTANCE OF THE UNITED STATES THE CAUSE WAS REMOVED TO THE FEDERAL
DISTRICT COURT AS AUTHORIZED BY SEC. 3 OF THE ACT OF APRIL 12, 1926. 
THE UNITED STATES THEN ANSWERED, ALLEGING THAT THE PARTITION
PROCEEDINGS WERE VOID FOR LACK OF THE UNITED STATES AS A PARTY AND FOR
WANT OF SERVICE ON THE SUPERINTENDENT UNDER SEC. 3 OF THE ACT OF APRIL
12, 1926.  IT PRAYED THAT THE DEED IN PARTITION BE SET ASIDE AND TITLE
QUIETED IN THE HEIRS.  THE DISTRICT COURT HELD THAT THE PARTITION
PROCEEDINGS WERE VALID AND QUIETED TITLE IN RESPONDENT.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  138 F.2D 985.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
IMPORTANCE IN THE ADMINISTRATION OF INDIAN AFFAIRS OF THE QUESTION
PRESENTED. 

IT SEEMS CLEAR FROM THE LANGUAGE OF THE ACT OF JUNE 14, 1918 AND ITS
LEGISLATIVE HISTORY (S. REP. NO. 330, 65TH CONG., 2D SESS.) THAT
CONGRESS VESTED IN THE OKLAHOMA STATE COURTS JURISDICTION TO DETERMINE
HEIRSHIP IN THESE RESTRICTED LANDS (SEC. 1) AND JURISDICTION TO
PARTITION THEM.  SEC. 2.  SEE SALMON V. JOHNSON, 78 OKLA. 182, 189 P.
537; UNITED STATES V. BOND, 108 F.2D 504.  THE AUTHORITY OF CONGRESS TO
SELECT STATE TRIBUNALS TO PERFORM SUCH FUNCTIONS IS CLEAR.  PARKER V.
RICHARD, 250 U.S. 235; HARRIS V. BELL, 254 U.S. 103; STEWART V. KEYES,
295 U.S. 403.  BUT A GRANT OF JURISDICTION TO A PARTICULAR COURT
WITHOUT MORE DOES NOT DETERMINE WHAT PARTIES ARE INDISPENSABLE TO THE
PROCEEDINGS IN QUESTION.  PETITIONER CONCEDES THAT THE UNITED STATES IS
NOT A NECESSARY PARTY TO PROCEEDINGS TO DETERMINE HEIRSHIP UNDER SEC. 1
OF THE ACT OF JUNE 14, 1918.  SINCE RESTRICTIONS ON ALIENATION DO NOT
PREVENT INHERITANCE, NO GOVERNMENTAL INTEREST IS AT LEAST DIRECTLY
INVOLVED IN SUCH A DETERMINATION.  IT MAY LIKEWISE BE INFERRED FROM THE
LANGUAGE, NATURE, AND PURPOSE OF ACTS OF CONGRESS WHICH VEST
JURISDICTION OVER SPECIFIED INDIAN AFFAIRS IN A DESIGNATED COURT THAT
CONGRESS NOT ONLY HAS MADE THAT TRIBUNAL THE EXCLUSIVE AGENCY TO
EFFECTUATE THE FEDERAL POLICY BUT ALSO HAS DISPENSED WITH ANY
REQUIREMENT THAT THE UNITED STATES BE A PARTY TO THE PROCEEDINGS.  SEE
HY-YU-TSE-MIL-KIN V. SMITH, 194 U.S. 401, 413-414; WINTON V. AMOS, 255
U.S. 373, 392.  BUT WE DO NOT THINK THAT CONGRESS DID MORE BY THOSE
PROVISIONS OF THE ACT OF JUNE 14, 1918 WITH WHICH WE ARE PRESENTLY
CONCERNED THAN TO GRANT THE OKLAHOMA STATE COURTS JURISDICTION OVER
PARTITION PROCEEDINGS. 

RESTRICTED INDIAN LAND IS PROPERTY IN WHICH THE UNITED STATES HAS AN
INTEREST.  "THIS NATIONAL INTEREST IS NOT TO BE EXPRESSED IN TERMS OF
PROPERTY, OR TO BE LIMITED TO THE ASSERTION OF RIGHTS INCIDENT TO THE
OWNERSHIP OF A REVERSION OR TO THE HOLDING OF A TECHNICAL TITLE IN
TRUST."  HECKMAN V. UNITED STATES, 224 U.S. 413, 437.  THOUGH THE
INDIAN'S INTEREST IS ALIENATED BY JUDICIAL DECREE, THE UNITED STATES
MAY SUE TO CANCEL THE JUDGMENT AND SET THE CONVEYANCE ASIDE WHERE IT
WAS NOT A PARTY TO THE ACTION.  BOWLING & MIAMI INVESTMENT CO. V.
UNITED STATES, 233 U.S. 528; PRIVETT V. UNITED STATES, 256 U.S. 201;
SUNDERLAND V. UNITED STATES, 266 U.S. 226.  UNDER SEC. 2 OF THE ACT OF
JUNE 14, 1918 LANDS PARTITIONED IN KIND TO FULL-BLOODS REMAIN
RESTRICTED.  ONLY IF THE LAND IS SOLD AT PARTITION SALE ARE THE
RESTRICTIONS REMOVED.  THE GOVERNMENTAL INTEREST THROUGHOUT THE
PARTITION PROCEEDINGS IS AS CLEAR AS IT WOULD BE IF THE FEE WERE IN THE
UNITED STATES.  MINNESOTA V. UNITED STATES, 305 U.S. 382, 387-388; TOWN
OF OKEMAH V. UNITED STATES, 140 F.2D 963.  THE UNITED STATES AS
GUARDIAN OF THE INDIANS IS NECESSARILY INTERESTED EITHER IN OBTAINING
PARTITION IN KIND WHERE THAT COURSE CONFORMS TO ITS POLICY OF
PRESERVING RESTRICTED LAND FOR THE INDIANS OR IN SEEING THAT THE BEST
POSSIBLE PRICE IS OBTAINED WHERE A SALE IS DESIRABLE.  WHERE, AS HERE,
THE LANDS ARE BOTH TAX-EXEMPT AND RESTRICTED, THE UNITED STATES IS
CONCERNED WITH THE REINVESTMENT OF THE PROCEEDS IN OTHER LANDS LIKEWISE
TAX-EXEMPT AND RESTRICTED AS PROVIDED IN THE ACT OF JUNE 30, 1932, 47
STAT. 474, 25 U.S.C. SEC. 409A.  FN3  THE UNITED STATES IS ALSO
INTERESTED IN PROTECTING THE PREFERENTIAL RIGHT OF THE SECRETARY OF THE
INTERIOR TO PURCHASE THE LAND AT THE SALE FOR ANOTHER INDIAN, AS
PROVIDED IN SEC. 2 OF THE ACT OF JUNE 26, 1936, 49 STAT. 1967.  FN4
THESE ARE IMPORTANT GOVERNMENTAL INTERESTS.  SINCE THE POWER OF
CONGRESS OVER INDIAN AFFAIRS IS PLENARY, IT MAY WAIVE OR WITHDRAW THESE
DUTIES OF GUARDIANSHIP OR ENTRUST THEM TO SUCH AGENCY - STATE OR
FEDERAL - AS IT CHOOSES.  BUT WE DO NOT FIND ANY INDICATION THAT WHEN
CONGRESS CAME TO DEAL WITH THESE PARTITION PROCEEDINGS IT SUBSTITUTED
THE OKLAHOMA STATE COURT FOR THE SECRETARY OF THE INTERIOR IN THE
PERFORMANCE OF THE FUNCTIONS WHICH WE HAVE ENUMERATED.  THAT ALONE
WOULD NOT BE FATAL TO RESPONDENT'S POSITION IF IT COULD BE INFERRED
THAT THOSE GOVERNMENTAL INTERESTS WERE TO BE PROTECTED BY MEANS OTHER
THAN MAKING THE UNITED STATES A PARTY.  BUT, AS WE HAVE SAID, THE ACT
IN QUESTION PURPORTS TO BE NO MORE THAN A JURISDICTIONAL STATUTE.  IT
FAILS TO SAY THAT THE UNITED STATES IS NOT A NECESSARY PARTY; NOR DOES
IT SUGGEST THAT THE UNITED STATES OR ITS OFFICERS ARE CONFINED TO A
LIMITED ROLE IN THE PROCEEDINGS.  CF. UNITED STATES V. CANDELARIA, 271
U.S. 432, 444.  WE MUST READ THE ACT IN LIGHT OF THE HISTORY OF
RESTRICTED LANDS.  THAT HISTORY SHOWS THAT THE UNITED STATES HAS LONG
BEEN CONSIDERED A NECESSARY PARTY TO SUCH PROCEEDINGS IN VIEW OF THE
LARGE GOVERNMENTAL INTERESTS WHICH ARE AT STAKE.  WE WILL NOT INFER
FROM A MERE GRANT OF JURISDICTION TO A STATE OR FEDERAL COURT TO
ADJUDICATE CLAIMS TO RESTRICTED LANDS AND TO ORDER THEIR SALE OR OTHER
DISTRIBUTION THAT CONGRESS DISPENSED WITH THAT LONG-STANDING
REQUIREMENT.  THE PURPOSE TO EFFECTUATE SUCH A MAJOR CHANGE IN POLICY
MUST BE CLEAR. 

MUCH STRESS IS LAID ON THE POINT THAT IF SEC. 2 OF THE ACT OF JUNE
14, 1918 IS SO CONSTRUED, IT WAS MEANINGLESS UNTIL THE ACT OF APRIL 12,
1926 WAS PASSED WHICH PROVIDED A STATUTORY METHOD FOR MAKING THE UNITED
STATES A PARTY.  THE ARGUMENT IS THAT PRIOR TO THE LATTER ACT THERE WAS
NO WAY OF JOINING THE UNITED STATES AS A PARTY TO SUCH AN ACTION.  BUT
AS STATED BY MR. JUSTICE BRANDEIS SPEAKING FOR THE COURT IN MINNESOTA
V. UNITED STATES, SUPRA, P. 388, AUTHORIZATION TO BRING AN ACTION
INVOLVING RESTRICTED LANDS "CONFERS BY IMPLICATION PERMISSION TO SUE
THE UNITED STATES."  FN5  THE SUIT IN THAT CASE FAILED BECAUSE NO
JURISDICTION WAS GRANTED TO THE STATE COURTS TO CONDEMN THE LANDS IN
QUESTION.  FN6  BUT SINCE THE STATE COURT IN THE PRESENT CASE WAS GIVEN
JURISDICTION TO PARTITION, CONSENT TO BE SUED IN THE STATE COURT MAY BE
IMPLIED.  SERVICE OF PROCESS THEREFORE MIGHT BE HAD IN THE USUAL WAY
(SEE TOWN OF OKEMAH V. UNITED STATES, SUPRA, P. 966) EVEN IN ABSENCE OF
THE 1926 ACT.  REVERSED. 

FN1  35 STAT. 312; 44 STAT. 239; 45 STAT. 495; 47 STAT. 777.  AND SEE
PARKER V. RICHARD, 250 U.S. 235; HARRIS V. BELL, 254 U.S. 103; STEWART
V. KEYES, 295 U.S. 403. 

FN2  "THAT THE LANDS OF FULL-BLOOD MEMBERS OF ANY OF THE FIVE
CIVILIZED TRIBES ARE HEREBY MADE SUBJECT TO THE LAWS OF THE STATE OF
OKLAHOMA, PROVIDING FOR THE PARTITION OF REAL ESTATE.  ANY LAND
ALLOTTED IN SUCH PROCEEDINGS TO A FULL-BLOOD INDIAN, OR CONVEYED TO HIM
UPON HIS ELECTION TO TAKE THE SAME AT THE APPRAISEMENT, SHALL REMAIN
SUBJECT TO ALL RESTRICTIONS UPON ALIENATION AND TAXATION OBTAINING
PRIOR TO SUCH PARTITION.  IN CASE OF A SALE UNDER ANY DECREE, OR
PARTITION, THE CONVEYANCE THEREUNDER SHALL OPERATE TO RELIEVE THE LAND
DESCRIBED OF ALL RESTRICTIONS OF EVERY CHARACTER." 

SEC. 1 OF THIS ACT (25 U.S.C. SEC. 375) PROVIDES IN PART:  "THAT A
DETERMINATION OF THE QUESTION OF FACT AS TO WHO ARE THE HEIRS OF ANY
DECEASED CITIZEN ALLOTTEE OF THE FIVE CIVILIZED TRIBES OF INDIANS WHO
MAY DIE OR MAY HAVE HERETOFORE DIED, LEAVING RESTRICTED HEIRS, BY THE
PROBATE COURT OF THE STATE OF OKLAHOMA HAVING JURISDICTION TO SETTLE
THE ESTATE OF SAID DECEASED, CONDUCTED IN THE MANNER PROVIDED BY THE
LAWS OF SAID STATE FOR THE DETERMINATION OF HEIRSHIP IN CLOSING UP THE
ESTATES OF DECEASED PERSONS, SHALL BE CONCLUSIVE OF SAID QUESTION." 

FN3  "THAT WHENEVER ANY NONTAXABLE LAND OF A RESTRICTED INDIAN OF THE
FIVE CIVILIZED TRIBES OR OF ANY OTHER INDIAN TRIBE IS SOLD TO ANY
STATE, COUNTY, OR MUNICIPALITY FOR PUBLIC-IMPROVEMENT PURPOSES, OR IS
ACQUIRED, UNDER EXISTING LAW, BY ANY STATE, COUNTY, OR MUNICIPALITY BY
CONDEMNATION OR OTHER PROCEEDINGS FOR SUCH PUBLIC PURPOSES, OR IS SOLD
UNDER EXISTING LAW TO ANY OTHER PERSON OR CORPORATION FOR OTHER
PURPOSES, THE MONEY RECEIVED FOR SAID LAND MAY, IN THE DISCRETION AND
WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR, BE REINVESTED IN
OTHER LANDS SELECTED BY SAID INDIAN, AND SUCH LAND SO SELECTED AND
PURCHASED SHALL BE RESTRICTED AS TO ALIENATION, LEASE, OR INCUMBRANCE,
AND NONTAXABLE IN THE SAME QUANTITY AND UPON THE SAME TERMS AND
CONDITIONS AS THE NONTAXABLE LANDS FROM WHICH THE REINVESTED FUNDS WERE
DERIVED, AND SUCH RESTRICTIONS SHALL APPEAR IN THE CONVEYANCE." 

FN4  "WHENEVER ANY RESTRICTED INDIAN LAND OR INTERESTS IN LAND, OTHER
THAN SALES OR LEASES OF OIL, GAS, OR OTHER MINERALS THEREIN, ARE
OFFERED FOR SALE, PURSUANT TO THE TERMS OF THIS OR ANY OTHER ACT OF
CONGRESS, THE SECRETARY OF THE INTERIOR SHALL HAVE A PREFERENCE RIGHT,
IN HIS DISCRETION, TO PURCHASE THE SAME FOR OR IN BEHALF OF ANY OTHER
INDIAN OR INDIANS OF THE SAME OR ANY OTHER TRIBE, AT A FAIR VALUATION
TO BE FIXED BY THE APPRAISEMENT SATISFACTORY TO THE INDIAN OWNER OR
OWNERS, OR IF OFFERED FOR SALE AT AUCTION SAID SECRETARY SHALL HAVE A
PREFERENCE RIGHT, IN HIS DISCRETION, TO PURCHASE THE SAME FOR OR IN
BEHALF OF ANY OTHER INDIAN OR INDIANS BY MEETING THE HIGHEST BID
OTHERWISE OFFERED THEREFOR." 

FN5  AND SEE UNITED STATES V. JONES, 109 U.S. 513, 519-521. 

FN6  SEE COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1942), P. 381. 
..END :



















MORTENSEN V. UNITED STATES, 322 U.S. 369 


NO. 559.  ARGUED MARCH 9, 10, 1944.  - DECIDED MAY 15, 1944.  - 139 F.2D
967, REVERSED. 


1.  IN THE EXERCISE OF ITS SUPERVISORY APPELLATE POWER, THIS COURT
TREATS THE TRANSCRIPT OF THE EVIDENCE IN THIS CASE AS PART OF THE
RECORD BEFORE IT AND CONSIDERS THE CASE ON ITS MERITS.  P. 371. 

2.  UPON REVIEW OF A CONVICTION IN A FEDERAL COURT, THIS COURT MAY
EXAMINE THE RECORD TO DETERMINE WHETHER THERE WAS ANY COMPETENT AND
SUBSTANTIAL EVIDENCE FAIRLY TENDING TO SUPPORT THE VERDICT.  P. 374. 

3.  PETITIONERS, MAN AND WIFE, OPERATED A HOUSE OF PROSTITUTION IN
NEBRASKA.  THEY TOOK WITH THEM ON A TRIP TO UTAH, WHICH WAS PLANNED AND
CONSUMMATED PURELY AS A VACATION, TWO GIRLS WHO HAD BEEN LIVING AT
THEIR HOUSE AS PROSTITUTES.  UPON THEIR RETURN, THE GIRLS RESUMED
PROSTITUTION AT PETITIONERS' HOUSE.  HELD THAT A CONVICTION OF THE
PETITIONERS FOR TRANSPORTING THE GIRLS FROM UTAH TO NEBRASKA (THE
RETURN TRIP) "FOR THE PURPOSE OF PROSTITUTION OR DEBAUCHERY," IN
VIOLATION OF SEC. 2 OF THE MANN ACT, WAS NOT SUPPORTED BY ANY RELEVANT
EVIDENCE.  PP. 372, 376. 

4.  TO PUNISH THOSE WHO TRANSPORT INMATES OF A HOUSE OF PROSTITUTION
ON AN INNOCENT VACATION TRIP IN NO WAY RELATED TO THE PRACTICE OF THEIR
COMMERCIAL VICE IS CONSISTENT NEITHER WITH THE PURPOSE NOR THE LANGUAGE
OF THE MANN ACT.  P. 377. 

MORTENSEN ET UX. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 321 U.S. 757, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR VIOLATION OF THE MANN ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO REVIEW THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS AFFIRMING THE CONVICTION OF PETITIONERS UNDER
SEC. 2 OF THE WHITE SLAVE TRAFFIC ACT, POPULARLY KNOWN AS THE MANN
ACT.  FN1  139 F.2D 967. 

FOLLOWING THEIR CONVICTION BY THE JURY IN THE DISTRICT COURT,
PETITIONERS FILED A NOTICE OF APPEAL TO THE CIRCUIT COURT OF APPEALS. 
HOWEVER, THEY FAILED TO FILE A TIMELY BILL OF EXCEPTIONS IN THE
DISTRICT COURT.  THEREAFTER THEY APPLIED TO THE CIRCUIT COURT OF
APPEALS FOR AN ORDER GRANTING THEM "THE RIGHT TO HAVE A BILL OF
EXCEPTIONS" AND FOR ADDITIONAL TIME IN WHICH TO SETTLE AND FILE IT.
THIS APPLICATION WAS DENIED WITHOUT OPINION OR EXPLANATION.  WHEN THE
CASE SUBSEQUENTLY CAME BEFORE ANOTHER DIVISION OF JUDGES OF THAT COURT
FOR ARGUMENT ON THE MERITS, PETITIONERS RENEWED THEIR REQUEST FOR
PERMISSION TO FILE A BILL.  THIS WAS, IN EFFECT, A MOTION FOR REHEARING
OF THE DECISION OF THE FIRST DIVISION OF JUDGES OF THE COURT.  COUNSEL
WAS THEN ALLOWED BY THE COURT TO LEAVE WITH IT, BUT NOT TO FILE, A COPY
OF THE REPORTER'S TRANSCRIPT OF THE EVIDENCE "IN ORDER THAT WE MIGHT
ASSURE OURSELVES THAT NO FUNDAMENTAL INJUSTICE HAD BEEN DONE BY THE
PREVIOUS DENIAL OF AN EXTENSION, AND THAT WE WOULD NOT, BECAUSE OF THE
ABSENCE OF A BILL OF EXCEPTIONS, BE AFFIRMING A CONVICTION WHICH WAS
NOT PROPERLY AN OFFENSE UNDER THE ACT."  139 F.2D AT 969, NOTE 1.  THE
COURT THEN TREATED THE CASE AS THOUGH THE TRANSCRIPT WERE PROPERLY
BEFORE IT AND SUSTAINED PETITIONERS' CONVICTION ON THE MERITS.  HAVING
REACHED THE CONCLUSION THAT THERE WAS NO MERIT IN PETITIONERS'
CONTENTIONS AND THAT THE RESULT WOULD HAVE BEEN THE SAME HAD A BILL OF
EXCEPTIONS BEEN FILED, THE COURT REFUSED TO PERMIT THE "PURPORTED"
TRANSCRIPT TO BE FILED.  NO OTHER REASON WAS GIVEN FOR THIS REFUSAL. 

PETITIONERS HAVE RAISED BEFORE US THE PROPRIETY OF THE ACTION OF THE
COURT BELOW, CLAIMING THAT THEY THEREBY HAVE BEEN PREVENTED FROM URGING
AND ARGUING CERTAIN ASSIGNMENTS OF ERROR WHICH THEY WISHED TO URGE.  IT
IS CLEAR FROM RULE IV OF THE CRIMINAL APPEALS RULES  FN2  THAT THE
CIRCUIT COURT OF APPEALS HAS THE RIGHT TO EXERCISE SOUND JUDICIAL
DISCRETION IN SUPERVISING AND CONTROLLING THE PROCEEDINGS ON APPEAL. 
RAY V. UNITED STATES, 301 U.S. 158, 166-167; FORTE V. UNITED STATES,
302 U.S. 220, 223; KAY V. UNITED STATES, 303 U.S. 1, 9-10; MILLER V.
UNITED STATES, 317 U.S. 192, 199.  THIS INCLUDES THE RIGHT TO GRANT OR
DENY BELATED APPLICATIONS FOR PERMISSION TO FILE BILLS OF EXCEPTIONS. 
AND THE COURT'S ACTION IN THE MATTER IS NOT REVIEWABLE IN THIS COURT
ABSENT A CLEAR ABUSE OF DISCRETION. 

BUT UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE IT IS UNNECESSARY
TO DETERMINE WHETHER THE COURT BELOW ABUSED ITS DISCRETION IN REFUSING
TO ALLOW A BILL TO BE FILED.  WHEN THAT COURT EXAMINED THE TRANSCRIPT
OF THE EVIDENCE AND CONCLUSIVELY ADJUDICATED THE MERITS, IT
ACCOMPLISHED IN SUBSTANCE ALL THAT WOULD HAVE BEEN ACHIEVED IF THE
FORMALITY OF FILING THE TRANSCRIPT HAD OCCURRED AND THE COURT HAD THEN
PASSED UPON THE MERITS.  IN ORDER THAT PETITIONERS SHALL NOT BE
UNFAIRLY DEPRIVED OF THE RIGHT TO SEEK A REVIEW OF THAT COURT'S
DETERMINATION OF THE MERITS, WE MAY CONSIDER THE COURT'S ACTION AS IN
EFFECT HAVING APPROVED THE FILING OF THE TRANSCRIPT AS A BILL OF
EXCEPTIONS.  A COPY OF THE TRANSCRIPT HAS BEEN LODGED WITH THE CLERK OF
THIS COURT AND NO QUESTION HAS BEEN RAISED AS TO ITS CORRECTNESS OR
COMPLETENESS.  IN ACCORDANCE WITH THE GOVERNMENT'S SUGGESTION AND IN
THE EXERCISE OF OUR SUPERVISORY APPELLATE POWER, WE SHALL TREAT THE
TRANSCRIPT AS A PART OF THE RECORD BEFORE US AND CONSIDER THE CASE ON
ITS MERITS. 

THE PETITIONERS, MAN AND WIFE, OPERATED A HOUSE OF PROSTITUTION IN
GRAND ISLAND, NEBRASKA.  IN 1940 THEY PLANNED AN AUTOMOBILE TRIP TO
SALT LAKE CITY, UTAH, IN ORDER TO VISIT MRS. MORTENSEN'S PARENTS.  TWO
GIRLS WHO WERE EMPLOYED BY PETITIONERS AS PROSTITUTES ASKED TO BE TAKEN
ALONG FOR A VACATION AND THE MORTENSENS AGREED TO THEIR REQUEST.  THEY
MOTORED TO YELLOWSTONE NATIONAL PARK AND THEN ON TO SALT LAKE CITY,
WHERE THEY ALL STAYED AT A TOURIST CAMP FOR FOUR OR FIVE DAYS.  THEY
VISITED MRS. MORTENSEN'S PARENTS AND, IN ADDITION, THE GIRLS "WENT TO
SHOWS AND AROUND IN THE PARKS" AND SAW VARIOUS OTHER PARTS OF THE
CITY.  THE FOUR THEN RETURNED IN PETITIONERS' AUTOMOBILE TO GRAND
ISLAND; ON ARRIVAL THEY DROVE IMMEDIATELY TO PETITIONERS' HOUSE OF ILL
FAME AND RETIRED TO THEIR RESPECTIVE ROOMS.  THE FOLLOWING DAY ONE OF
THE GIRLS RESUMED HER ACTIVITIES AS A PROSTITUTE IN PETITIONERS'
EMPLOY, WHILE THE OTHER DID NOT RESUME SUCH ACTIVITIES FOR A WEEK OR
TEN DAYS BECAUSE OF ILLNESS.  BOTH GIRLS CONTINUED TO ACT AS
PROSTITUTES FOR PETITIONERS FOR A YEAR OR MORE AFTER THEIR RETURN FROM
SALT LAKE CITY. 

IT IS UNDISPUTED THAT THIS WAS PURELY A VACATION TRIP, WITH THE TWO
GIRLS PAYING THEIR OWN LIVING EXPENSES AND PETITIONERS BEARING THE
EXPENSES OF TRANSPORTATION.  ONE OF THE GIRLS HAD OFFERED TO HELP PAY
FOR THE TRANSPORTATION, BUT PETITIONERS REFUSED ON THE GROUND THAT THE
COST WOULD REMAIN THE SAME EVEN IF THE GIRLS DID NOT ACCOMPANY THEM. 
NO ACTS OF PROSTITUTION OR OTHER IMMORALITY OCCURRED DURING THE TWO
WEEK TRIP AND THERE WAS NO DISCUSSION OF SUCH ACTS DURING THE COURSE OF
THE JOURNEY.  BOTH GIRLS TESTIFIED THAT DURING THE TRIP THEY GAVE NO
CONSIDERATION TO THEIR WORK AS PROSTITUTES AND MADE NO PLANS TO ABANDON
SUCH ACTIVITIES.  THERE WAS ALSO UNCONTRADICTED EVIDENCE THAT THE TWO
GIRLS WERE UNDER NO OBLIGATION OR COMPULSION OF ANY KIND TO RETURN TO
GRAND ISLAND TO WORK FOR PETITIONERS.  THEY WERE FREE AT ANY TIME
BEFORE, DURING OR AFTER THE VACATION EXCURSION TO LEAVE PETITIONERS'
EMPLOY AND ENGAGE IN THEIR OWN PURSUITS.  BOTH GIRLS CLAIMED THAT GRAND
ISLAND WAS THEIR RESIDENCE, ONE OF THEM TESTIFYING THAT SHE BOARDED HER
CHILD WITH A FAMILY IN THAT CITY. 

PETITIONERS WERE CHARGED IN TWO COUNTS WITH VIOLATING SEC. 2 OF THE
MANN ACT IN THAT THEY TRANSPORTED AND CAUSED TO BE TRANSPORTED, AND
AIDED AND ASSISTED IN OBTAINING TRANSPORTATION FOR AND IN TRANSPORTING,
TWO GIRLS IN INTERSTATE COMMERCE FROM SALT LAKE CITY TO GRAND ISLAND
FOR THE PURPOSE OF PROSTITUTION AND DEBAUCHERY, AND WITH INTENT TO
INDUCE, ENTICE AND COMPEL THE GIRLS TO GIVE THEMSELVES UP TO DEBAUCHERY
AND TO ENGAGE IN IMMORAL PRACTICES.  THE JURY WAS CHARGED THAT PURPOSE
WAS AN ESSENTIAL INGREDIENT OF THE CRIME AND THAT IF THE JURY FOUND
THAT THE TRANSPORTATION FROM SALT LAKE CITY TO GRAND ISLAND WAS PLANNED
WITH NO IMMORAL PURPOSE, NO CRIME WAS COMMITTED.  THE JURY WAS ALSO
TOLD THAT, TO CONVICT, IT MUST FIND THAT THE GOVERNMENT HAD PROVED
BEYOND A REASONABLE DOUBT THAT PETITIONERS TRANSPORTED THE GIRLS FROM
SALT LAKE CITY TO GRAND ISLAND FOR THE PURPOSE OF PROSTITUTION AND
DEBAUCHERY.  THE JURY RETURNED A VERDICT OF GUILTY ON BOTH COUNTS. 
THIS CONVICTION WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS UNDER
CIRCUMSTANCES PREVIOUSLY DESCRIBED. 

THE PRIMARY ISSUE BEFORE US IS WHETHER THERE WAS ANY EVIDENCE FROM
WHICH THE JURY COULD RIGHTLY FIND THAT PETITIONERS TRANSPORTED THE
GIRLS FROM SALT LAKE CITY TO GRAND ISLAND FOR AN IMMORAL PURPOSE IN
VIOLATION OF THE MANN ACT. 

THE PENALTIES OF SEC. 2 OF THE ACT ARE DIRECTED AT THOSE WHO
KNOWINGLY TRANSPORT IN INTERSTATE COMMERCE "ANY WOMAN OR GIRL FOR THE
PURPOSE OF PROSTITUTION OR DEBAUCHERY, OR FOR ANY OTHER IMMORAL
PURPOSE, OR WITH THE INTENT AND PURPOSE TO INDUCE, ENTICE, OR COMPEL
SUCH WOMAN OR GIRL TO BECOME A PROSTITUTE OR TO GIVE HERSELF UP TO
DEBAUCHERY, OR TO ENGAGE IN ANY OTHER IMMORAL PRACTICE."  THE STATUTE
THUS AIMS TO PENALIZE ONLY THOSE WHO USE INTERSTATE COMMERCE WITH A
VIEW TOWARD ACCOMPLISHING THE UNLAWFUL PURPOSES.  TO CONSTITUTE A
VIOLATION OF THE ACT, IT IS ESSENTIAL THAT THE INTERSTATE
TRANSPORTATION HAVE FOR ITS OBJECT OR BE THE MEANS OF EFFECTING OR
FACILITATING THE PROSCRIBED ACTIVITIES.  HANSEN V. HAFF, 291 U.S. 559,
563.  AN INTENTION THAT THE WOMEN OR GIRLS SHALL ENGAGE IN THE CONDUCT
OUTLAWED BY SEC. 2 MUST BE FOUND TO EXIST BEFORE THE CONCLUSION OF THE
INTERSTATE JOURNEY AND MUST BE THE DOMINANT MOTIVE OF SUCH INTERSTATE
MOVEMENT.  AND THE TRANSPORTATION MUST BE DESIGNED TO BRING ABOUT SUCH
RESULT.  WITHOUT THAT NECESSARY INTENTION AND MOTIVATION, IMMORAL
CONDUCT DURING OR FOLLOWING THE JOURNEY IS INSUFFICIENT TO SUBJECT THE
TRANSPORTER TO THE PENALTIES OF THE ACT. 

SINCE THE ISSUE AS TO WHETHER PETITIONERS INTENDED THAT THE TWO GIRLS
SHOULD RESUME THEIR IMMORAL CONDUCT ON THEIR RETURN TO GRAND ISLAND AND
TRANSPORTED THEM IN INTERSTATE COMMERCE FOR THAT PURPOSE WAS SUBMITTED
TO THE JURY WITH APPROPRIATE INSTRUCTIONS WE WOULD NORMALLY BE
PRECLUDED FROM REVIEWING OR DISTURBING THE INFERENCES OF FACT DRAWN
FROM THE EVIDENCE BY THE JURY.  BUT WE HAVE NEVER HESITATED TO EXAMINE
A RECORD TO DETERMINE WHETHER THERE WAS ANY COMPETENT AND SUBSTANTIAL
EVIDENCE FAIRLY TENDING TO SUPPORT THE VERDICT.  CF. ABRAMS V. UNITED
STATES, 250 U.S. 616, 619.  OUR EXAMINATION OF THE RECORD IN THIS CASE
CONVINCES US THAT THERE WAS A COMPLETE LACK OF RELEVANT EVIDENCE FROM
WHICH THE JURY COULD PROPERLY FIND OR INFER, BEYOND A REASONABLE DOUBT,
THAT PETITIONERS TRANSPORTED THE GIRLS IN INTERSTATE COMMERCE "FOR THE
PURPOSE OF PROSTITUTION OR DEBAUCHERY" WITHIN THE MEANING OF THE MANN
ACT. 

IT MAY BE ASSUMED THAT PETITIONERS ANTICIPATED THAT THE TWO GIRLS
WOULD RESUME THEIR ACTIVITIES AS PROSTITUTES UPON THEIR RETURN TO GRAND
ISLAND.  BUT WE DO NOT THINK IT IS FAIR OR PERMISSIBLE UNDER THE
EVIDENCE ADDUCED TO INFER THAT THIS INTERSTATE VACATION TRIP, OR ANY
PART OF IT, WAS UNDERTAKEN BY PETITIONERS FOR THE PURPOSE OF, OR AS A
MEANS OF EFFECTING OR FACILITATING, SUCH ACTIVITIES.  THE SOLE PURPOSE
OF THE JOURNEY FROM BEGINNING TO END WAS TO PROVIDE INNOCENT RECREATION
AND A HOLIDAY FOR PETITIONERS AND THE TWO GIRLS.  IT WAS A COMPLETE
BREAK OR INTERLUDE IN THE OPERATION OF PETITIONERS' HOUSE OF ILL FAME
AND WAS ENTIRELY DISASSOCIATED THEREFROM.  THERE WAS NO EVIDENCE THAT
ANY IMMORAL ACTS OCCURRED ON THE JOURNEY OR THAT PETITIONERS FORCED THE
GIRLS AGAINST THEIR WILL TO RETURN TO GRAND ISLAND FOR IMMORAL
PURPOSES.  WHAT CONGRESS HAS OUTLAWED BY THE MANN ACT, HOWEVER, IS THE
USE OF INTERSTATE COMMERCE AS A CALCULATED MEANS FOR EFFECTUATING
SEXUAL IMMORALITY.  IN ORDINARY SPEECH AN INTERSTATE TRIP UNDERTAKEN
FOR AN INNOCENT VACATION PURPOSE CONSTITUTES THE USE OF INTERSTATE
COMMERCE FOR THAT INNOCENT PURPOSE.  SUCH A TRIP DOES NOT LOSE THAT
MEANING WHEN VIEWED IN LIGHT OF A CRIMINAL STATUTE OUTLAWING INTERSTATE
TRIPS FOR IMMORAL PURPOSES. 

THE FACT THAT THE TWO GIRLS ACTUALLY RESUMED THEIR IMMORAL PRACTICES
AFTER THEIR RETURN TO GRAND ISLAND DOES NOT, STANDING ALONE, OPERATE TO
INJECT A RETROACTIVE ILLEGAL PURPOSE INTO THE RETURN TRIP TO GRAND
ISLAND.  NOR DOES IT JUSTIFY AN ARBITRARY SPLITTING OF THE ROUND TRIP
INTO TWO PARTS SO AS TO PERMIT AN INFERENCE THAT THE PURPOSE OF THE
DRIVE TO SALT LAKE CITY WAS INNOCENT WHILE THE PURPOSE OF THE HOMEWARD
JOURNEY TO GRAND ISLAND WAS CRIMINAL.  THE RETURN JOURNEY UNDER THE
CIRCUMSTANCES OF THIS CASE CANNOT BE CONSIDERED APART FROM ITS INTEGRAL
RELATION WITH THE INNOCENT ROUND TRIP AS A WHOLE.  THERE IS NO EVIDENCE
OF ANY CHANGE IN THE PURPOSE OF THE TRIP DURING ITS COURSE.  IF
INNOCENT WHEN IT BEGAN IT REMAINED SO UNTIL IT ENDED.  GUILT OR
INNOCENCE DOES NOT TURN MERELY ON THE DIRECTION OF TRAVEL DURING PART
OF A TRIP NOT UNDERTAKEN FOR IMMORAL ENDS.  IF THE RETURN JOURNEY WAS
ILLEGAL, SO WAS THE OUTGOING ONE SINCE ALL INTENDED, FROM THE
BEGINNING, TO END THE JOURNEY WHERE IT BEGAN, AT GRAND ISLAND.  THE
OUTWARD LEG OF THE TRIP WAS INTERSTATE TRANSPORTATION.  YET IT WAS NOT
CHARGED, AND COULD NOT WELL BE, THAT PROOF OF THIS PART OF THE TRIP WAS
A VIOLATION OF THE ACT.  IT DIFFERED IN NO RESPECT FROM THE OTHER PART,
EXCEPT IN THE DIRECTION OF TRAVEL.  THAT IS NOT ENOUGH TO MAKE THE
FIRST PART INNOCENT, THE LAST PART ILLEGAL.  CRIMINAL INTENT AND
PURPOSE MUST BE GROUNDED ON SOMETHING LESS INGENIOUS THAN THAT WHICH IS
NECESSARY TO SUSTAIN A FINDING OF SUCH A PURPOSE IN MAKING THE RETURN
INTERSTATE JOURNEY TO GRAND ISLAND.  "PEOPLE NOT OF GOOD MORAL
CHARACTER, LIKE OTHERS, TRAVEL FROM PLACE TO PLACE AND CHANGE THEIR
RESIDENCE.  BUT TO SAY THAT BECAUSE THEY INDULGE IN ILLEGAL OR IMMORAL
ACTS, THEY TRAVEL FOR THAT PURPOSE, IS TO EMPHASIZE THAT WHICH IS
INCIDENTAL AND IGNORE WHAT IS OF PRIMARY SIGNIFICANCE."  HANSEN V.
HAFF, SUPRA, 562-563.  CF. EX PARTE ROCHA, 30 F.2D 823. 

AN ARTIFICIAL AND UNREALISTIC VIEW OF THE NATURE AND PURPOSE OF THE
RETURN JOURNEY TO GRAND ISLAND IS NECESSARY TO SUSTAIN THIS
CONVICTION.  BUT WE ARE UNWILLING TO SANCTION THE APPLICATION OF THE
MANN ACT IN A MANNER THAT IS SO MANIFESTLY UNFAIR.  WHATEVER THEIR
FAULTS, PETITIONERS ARE ENTITLED TO HAVE JUST AND FAIR TREATMENT UNDER
THE LAW AND NOT TO BE PUNISHED FOR TRANSPORTING GIRLS IN INTERSTATE
COMMERCE FOR A PURPOSE WHOLLY DIFFERENT FROM ANY OF THE PURPOSES
CONDEMNED BY CONGRESS.    WE DO NOT HERE QUESTION OR RECONSIDER ANY
PREVIOUS CONSTRUCTION PLACED ON THE ACT WHICH MAY HAVE LED THE FEDERAL
GOVERNMENT INTO AREAS OF REGULATION NOT ORIGINALLY CONTEMPLATED BY
CONGRESS.  BUT EXPERIENCE WITH THE ADMINISTRATION OF THE LAW ADMONISHES
US AGAINST ADDING ANOTHER CHAPTER OF STATUTORY CONSTRUCTION AND
APPLICATION WHICH WOULD HAVE A SIMILAR EFFECT AND WHICH WOULD MAKE
POSSIBLE EVEN FURTHER JUSTIFICATION OF THE FEAR EXPRESSED AT THE TIME
OF THE ADOPTION OF THE LEGISLATION THAT ITS BROAD PROVISIONS "ARE
LIABLE TO FURNISH BOUNDLESS OPPORTUNITY TO HOLD UP AND BLACKMAIL AND
MAKE UNNECESSARY TROUBLE, WITHOUT ANY CORRESPONDING BENEFITS TO
SOCIETY."  FN3 

TO PUNISH THOSE WHO TRANSPORT INMATES OF A HOUSE OF PROSTITUTION ON
AN INNOCENT VACATION TRIP IN NO WAY RELATED TO THE PRACTICE OF THEIR
COMMERCIAL VICE IS CONSISTENT NEITHER WITH THE PURPOSE NOR WITH THE
LANGUAGE OF THE ACT.  CONGRESS WAS ATTEMPTING PRIMARILY TO ELIMINATE
THE "WHITE SLAVE" BUSINESS WHICH USES INTERSTATE AND FOREIGN COMMERCE
AS A MEANS OF PROCURING AND DISTRIBUTING ITS VICTIMS AND "TO PREVENT
PANDERERS AND PROCURERS FROM COMPELLING THOUSANDS OF WOMEN AND GIRLS
AGAINST THEIR WILL AND DESIRE TO ENTER AND CONTINUE IN A LIFE OF
PROSTITUTION."  FN4  SUCH CLEARLY WAS NOT THE SITUATION REVEALED BY THE
FACTS OF THIS CASE.  TO ACCOMPLISH ITS PURPOSE THE STATUTE ENUMERATES
THE PROHIBITED ACTS IN BROAD LANGUAGE CAPABLE OF APPLICATION BEYOND
THAT INTENDED BY THE LEGISLATIVE FRAMERS.  BUT EVEN SUCH BROAD LANGUAGE
IS CONDITIONED UPON THE USE OF INTERSTATE TRANSPORTATION FOR THE
PURPOSE OF, OR AS A MEANS OF EFFECTING OR FACILITATING, THE COMMISSION
OF THE ILLEGAL ACTS.  HERE THE INTERSTATE ROUND TRIP HAD NO SUCH
PURPOSE AND WAS IN NO WAY RELATED TO THE SUBSEQUENT IMMORALITIES IN
GRAND ISLAND.  IN SHORT, WE PERCEIVE NO STATUTORY PURPOSE OR LANGUAGE
WHICH PROHIBITS PETITIONERS UNDER THESE CIRCUMSTANCES FROM USING
INTERSTATE TRANSPORTATION FOR A VACATION OR FOR ANY OTHER INNOCENT
PURPOSE. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED. 

FN1  ACT OF JUNE 25, 1910, SEC. 2, 36 STAT. 825, 18 U.S.C. SEC. 398. 

FN2  292 U.S. 661, 663; 18 U.S.C.A. FOLLOWING SEC. 688. 

FN3  45 CONG. REC. 1033. 

FN4  H. REP. NO. 47, P. 10(61ST CONG., 2D SESS.).  THE SAME STATEMENT
APPEARS IN S. REP. NO. 886, P. 10(61ST CONG., 2D SESS.).  SEE ALSO 45
CONG. REC. 805, 821, 1035, 1037. 

MR. CHIEF JUSTICE STONE: 

MR. JUSTICE BLACK, MR. JUSTICE REED, MR. JUSTICE DOUGLAS AND I THINK
THE JUDGMENT SHOULD BE AFFIRMED. 

COURTS HAVE NO MORE CONCERN WITH THE POLICY AND WISDOM OF THE MANN
ACT THAN OF THE LABOR RELATIONS ACT OR ANY OTHER WHICH CONGRESS MAY
CONSTITUTIONALLY ADOPT.  THOSE ARE MATTERS FOR CONGRESS TO DETERMINE,
NOT THE COURTS.  CONGRESS, IN ENACTING THE MANN ACT, DECLARED IN
UNMISTAKABLE TERMS THAT ANY PERSON WHO SHOULD TRANSPORT ACROSS STATE
LINES "ANY WOMAN  ...  FOR THE PURPOSE OF PROSTITUTION  ...  OR WITH
THE INTENT AND PURPOSE TO INDUCE  ...  SUCH WOMAN  ... TO GIVE HERSELF
UP TO DEBAUCHERY, OR TO ENGAGE IN ANY OTHER IMMORAL PRACTICE; ...
SHALL BE DEEMED GUILTY OF A FELONY." 

THE FACT THAT PETITIONERS, WHO WERE ENGAGED IN AN ESTABLISHED
BUSINESS OF OPERATING A HOUSE OF PROSTITUTION IN NEBRASKA, TOOK SOME OF
ITS WOMEN INMATES ON A TRANSIENT AND INNOCENT VACATION TRIP TO OTHER
STATES, IS IN NO WAY INCOMPATIBLE WITH THE CONCLUSION THAT PETITIONERS,
IN BRINGING THEM BACK TO NEBRASKA, PURPOSED AND INTENDED THAT THEY
SHOULD RESUME THERE THE PRACTICE OF COMMERCIAL VICE, WHICH IN FACT THEY
DID PROMPTLY RESUME IN PETITIONERS' ESTABLISHMENT.  THE RECORD IS
WITHOUT EVIDENCE THAT THEY ENGAGED OR INTENDED TO ENGAGE IN ANY OTHER
ACTIVITIES IN NEBRASKA, OR THAT ANYTHING OTHER THAN THE PRACTICE OF
THEIR PROFESSION WAS THE OBJECT OF THEIR RETURN.  FOR THIS REASON THE
CASE IS CONTROLLED BY LAPINA V. WILLIAMS, 232 U.S. 78, RATHER THAN BY
HANSEN V. HAFF, 291 U.S. 559.  THE JURY WAS PROPERLY INSTRUCTED, ITS
VERDICT IS SUPPORTED BY AMPLE EVIDENCE, AND THE TWO COURTS BELOW
RIGHTLY SUSTAINED IT.
..END :




















UNITED STATES V. WABASH R. CO., 322 U.S. 198 


NO. 453.  DECIDED MAY 8, 1944.  - REHEARING DENIED. 


NOTHING IN THE RECORD OR IN THE PETITION FOR REHEARING REQUIRES
DECISION IN THE PRESENT PROCEEDING OF THE CONTENTION THAT, AS A RESULT
OF CHANGED CONDITIONS AFTER THE CASE WAS SUBMITTED TO THE COMMISSION,
THE SPOTTING SERVICE AS NOW PERFORMED IS NOT IN EXCESS OF THE CARRIERS'
OBLIGATION UNDER THEIR TARIFF RATES, AND THAT ITS PERFORMANCE BY THE
CARRIERS WITHOUT CHARGE IS THEREFORE NOT UNLAWFUL.  THE PETITION FOR
REHEARING IS DENIED WITHOUT PREJUDICE TO APPELLEES' PRESENTATION OF THE
QUESTION IN ANY APPROPRIATE PROCEEDING BEFORE THE COMMISSION AND THE
COURTS.  P. 201. 

UNITED STATES ET AL. V. WABASH RAILROAD CO. ET AL. 

ON PETITION FOR REHEARING. 

PETITION FOR REHEARING IN THE CASE OF UNITED STATES V. WABASH R. CO.,
321 U.S. 403. 

MR. CHIEF JUSTICE STONE: 

IN ITS PETITION FOR REHEARING, APPELLEE STALEY MANUFACTURING CO. FOR
THE FIRST TIME CALLS TO OUR ATTENTION CERTAIN ALLEGED CHANGES IN THE
LOCATION AND ARRANGEMENT OF TRACKS ON WHICH ARE PLACED CARS MOVING TO
AND FROM THE TRACKS OF THE LINE-HAUL CARRIERS FROM AND TO STALEY'S
INDUSTRIAL TRACKS.  THE CHANGES ARE ALLEGED TO HAVE OCCURRED AFTER THE
SUBMISSION OF THE CASE TO THE INTERSTATE COMMERCE COMMISSION AND ARE
SAID TO CALL FOR A DIFFERENT CONCLUSION THAN THAT REACHED BY THE
COMMISSION AS TO WHETHER THE SPOTTING SERVICE NOW PERFORMED BY STALEY
IS A PART OF THE SERVICE COVERED BY THE LINE-HAUL TARIFFS. 

THE COMMISSION'S REPORT CONSIDERED IN DETAIL THE CIRCUMSTANCES
ATTENDING THE PLACING OF CARS AT WHAT ARE TERMED THE BURWELL TRACKS,
WHICH IT FOUND TO BE LOCATED WITHIN THE STALEY PLANT AREA AND TO HAVE
BEEN LEASED BY STALEY TO APPELLEE WABASH RAILROAD CO. ITS REPORT STATES
THAT, IN GENERAL, CARS DELIVERED TO STALEY WERE INITIALLY PLACED BY THE
CARRIER ON THE BURWELL TRACKS AND THENCE SWITCHED TO APPROPRIATE
UNLOADING POINTS AT THE STALEY PLANT, WHILE CARS RECEIVED FROM STALEY
WERE GENERALLY PLACED ON THE WABASH RAILROAD'S GENERAL OR STORAGE
TRACKS, BUT WERE ALSO SOMETIMES PLACED ON THE BURWELL TRACKS.  THE
COMMISSION FOUND, ON SUFFICIENT EVIDENCE THEN BEFORE IT, THAT "THE
MOVEMENTS BETWEEN POINTS OF LOADING OR UNLOADING WITHIN THE PLANT AREA
OF THE STALEY COMPANY AND THE BURWELL YARD, THE STORAGE YARD, OR THE
GENERAL YARD OF THE WABASH  ...  IN ALL INSTANCES ARE, AND MUST BE,
COORDINATED WITH THE INDUSTRIAL OPERATIONS OF THE STALEY COMPANY AND
CONFORM TO ITS CONVENIENCE."  AND IN ITS SECOND CONCLUSION OF LAW IT
STATED THAT "ALL SERVICES BETWEEN THE BURWELL YARD OR THE STORAGE OR
GENERAL YARD OF THE WABASH AND POINTS OF LOADING OR UNLOADING WITHIN
THE PLANT AREA OF THE STALEY COMPANY ARE PLANT SERVICES FOR THE STALEY
COMPANY AND NOT COMMON-CARRIER SERVICES COVERED BY THE LINE-HAUL RATES
AND CHARGES OF RESPONDENT CARRIERS." 

BY THEIR PETITIONS FOR REHEARING ADDRESSED TO THE COMMISSION,
APPELLEES ALLEGED THAT SINCE MARCH 1, 1941, THREE MONTHS AFTER THE CASE
HAD BEEN SUBMITTED TO THE COMMISSION AND ABOUT TWO MONTHS BEFORE IT
RENDERED ITS DECISION, THE USE OF THE BURWELL TRACKS HAD BEEN
DISCONTINUED, AND THAT THOSE TRACKS HAD THEREAFTER BEEN DISCONNECTED
AND WERE BEING DISMANTLED.  THEY FURTHER ALLEGED THAT APPELLEE WABASH
RAILROAD WAS IN COURSE OF CONSTRUCTING NEW TRACKS ON ITS OWN PROPERTY
"ADJACENT TO ITS YARD TRACKS NORTH OF THE STALEY PLANT" AND
"IMMEDIATELY NORTH OF THE SO-CALLED BURWELL YARD" FOR USE IN THE
INTERCHANGE OF CARS WITH STALEY AND OTHER SHIPPERS, AND THAT MEANWHILE
THE INTERCHANGE WAS BEING PERFORMED FROM ITS GENERAL OR STORAGE YARDS. 
APPELLEES MOVED RESPECTIVELY THAT THE COMMISSION RECONSIDER ITS
DECISION "UPON SUCH FURTHER PROCEEDINGS AS MAY BE APPROPRIATE AND
NECESSARY," AND THAT "THE CASE BE SET DOWN FOR A FURTHER HEARING, AND
THAT  ... THE COMMISSION RECONSIDER ITS ORDER."  NO EVIDENCE WAS
SPECIFIED OR TENDERED TO PROVE BEFORE THE COMMISSION THE ALLEGATIONS OF
THE PETITIONS FOR REHEARING, AND NO OPPORTUNITY TO INTRODUCE EVIDENCE
WAS IN TERMS REQUESTED.  THE COMMISSION DENIED THE PETITIONS FOR
REHEARING WITHOUT OPINION. 

BEFORE THE DISTRICT COURT APPELLEES SET OUT THE SUBSTANCE OF THEIR
PETITIONS TO THE COMMISSION FOR REHEARING AND URGED THAT THE COMMISSION
ERRED IN DENYING THEM.  THE UNITED STATES IN ITS ANSWER ADMITTED ONLY
THAT APPELLEES HAD ALLEGED IN THOSE PETITIONS FOR REHEARING THE MATTERS
SET FORTH; THE TRUTH OF THE MATTERS ALLEGED WAS NOT ADMITTED BY EITHER
APPELLANT.  NO NEW EVIDENCE WAS TAKEN IN THE DISTRICT COURT.  THAT
COURT DID NOT PASS ON THIS QUESTION, AND MADE NO FINDINGS AS TO THE
EXTENT OR EFFECT OF THE ALLEGED CHANGE OF CONDITIONS. 

NOTHING IN THE PETITIONS TO THE COMMISSION FOR REHEARING OR IN THE
PETITION HERE AFFORDS ANY BASIS FOR SAYING THAT THE ALLEGED CHANGES IN
CONDITIONS ARE OF A CHARACTER WHICH WOULD REQUIRE ANY MODIFICATION OF
THE COMMISSION'S ORDER OR THAT APPELLEES COULD NOT, WITH DUE DILIGENCE,
HAVE BROUGHT THE CHANGES TO THE ATTENTION OF THE COMMISSION BEFORE IT
MADE ITS REPORT.  THEY WERE NOT REFERRED TO IN APPELLEES' BRIEFS IN
THIS COURT.  COMPARE RULE 27, PARAGRAPHS 4 AND 6; I.T.S. RUBBER CO. V.
ESSEX RUBBER CO., 272 U.S. 429, 431-2; FLOURNOY V. WIENER, 321 U.S.
253, 260-61.  NEITHER THE COMMISSION NOR THE DISTRICT COURT HAVE MADE
FINDINGS WITH RESPECT TO THEM AND THEY WERE NOT CONSIDERED BY THIS
COURT OR REFERRED TO IN ITS OPINION. 

WE FIND NOTHING IN THE RECORD OR IN THE PETITION BEFORE US WHICH
CALLS ON THE COURT IN THE PRESENT PROCEEDING TO PASS ON THE QUESTION
NOW SOUGHT TO BE RAISED.  OUR DECISION IS ACCORDINGLY WITHOUT PREJUDICE
TO APPELLEES' PRESENTATION IN ANY APPROPRIATE PROCEEDING BEFORE THE
COMMISSION AND THE COURTS, OF THEIR CONTENTION THAT AS A RESULT OF
CHANGED CONDITIONS AFTER THE CASE WAS SUBMITTED TO THE COMMISSION, THE
SPOTTING SERVICE AS NOW PERFORMED IS NOT IN EXCESS OF THE CARRIERS'
OBLIGATION UNDER THEIR TARIFF RATES, AND THAT ITS PERFORMANCE BY THE
CARRIERS WITHOUT CHARGE IS THEREFORE NOT UNLAWFUL. 

THE PETITION FOR REHEARING IS DENIED. 
..END :











UNION BROKERAGE CO. V. JENSEN, 322 U.S. 202 


NO. 291.  ARGUED FEBRUARY 1, 1944.  - DECIDED MAY 8, 1944.  - 215 MINN.
207, 9 N.W.2D 721, AFFIRMED. 


A STATUTE OF MINNESOTA DENYING TO ALL FOREIGN CORPORATIONS THE RIGHT
TO MAINTAIN ANY ACTION IN THE COURTS OF THE STATE UNLESS THEY HAVE
PREVIOUSLY OBTAINED A CERTIFICATE OF AUTHORITY TO DO BUSINESS WITHIN
THE STATE, FOR WHICH A FILING FEE OF $5.00 PLUS AN INITIAL LICENSE FEE
OF $50.00 IS EXACTED - HELD VALID AS APPLIED TO A FEDERALLY LICENSED
CUSTOMHOUSE BROKER WHOSE BUSINESS WAS LOCALIZED IN THE STATE; AND NOT
IN CONFLICT WITH EXISTING FEDERAL LAWS AND REGULATIONS RELATING TO
CUSTOMHOUSE BROKERS OR WITH THE COMMERCE CLAUSE OF THE CONSTITUTION. 
PP. 207, 212. 

UNION BROKERAGE CO. V. JENSEN ET AL. 

CERTIORARI TO THE SUPREME COURT OF MINNESOTA. 

CERTIORARI, 320 U.S. 724, TO REVIEW A JUDGMENT WHICH, REVERSING A
JUDGMENT OF THE TRIAL COURT, ORDERED DISMISSAL OF A SUIT BROUGHT BY A
FOREIGN CORPORATION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT IN ONE OF THE LOWER COURTS OF MINNESOTA BY THE
UNION BROKERAGE COMPANY AGAINST JENSEN AND RIME FOR BREACH OF FIDUCIARY
OBLIGATIONS IN RELATION TO UNION'S BUSINESS, THAT OF CUSTOMHOUSE
BROKERAGE.  THE ONLY DEFENSE TO THE SUIT WITH WHICH WE ARE CONCERNED IS
THE ALLEGED DISABILITY OF UNION TO RESORT TO MINNESOTA'S COURTS FOR
WANT OF COMPLIANCE WITH HER LAWS GOVERNING THE TRANSACTION OF BUSINESS
IN THE STATE AS A FOREIGN CORPORATION.  MINN. L. 1935, C. 200, MINN.
STAT. 1941, C. 303.  THE SUPREME COURT OF MINNESOTA SUSTAINED THIS
DEFENSE, REVERSED THE JUDGMENT IN FAVOR OF THE PETITIONER, AND ORDERED
THE SUIT DISMISSED.  215 MINN. 207, 9 N.W.2D 721.  WE BROUGHT THE CASE
HERE TO DETERMINE THE IMPORTANT QUESTION WHETHER ENFORCEMENT OF THE
MINNESOTA FOREIGN CORPORATION ACT IN THIS SITUATION RUNS COUNTER TO
FEDERAL LAW PERTAINING TO CUSTOMHOUSE BROKERS OR IS BARRED BY THE
COMMERCE CLAUSE.  320 U.S. 724. 

ANOTHER CLAIM THAT STATE AUTHORITY MUST YIELD TO CONTROLLING FEDERAL
AUTHORITY OVER INTERSTATE AND FOREIGN COMMERCE IS THUS PRESENTED.  IT
BECOMES NECESSARY THEREFORE TO ASCERTAIN PRECISELY WHAT DEMAND THE
STATE HAS HERE MADE, IN RELATION TO WHAT TRANSACTIONS OR ACTIVITY IT IS
MAKING SUCH DEMAND, IN WHAT WAY FEDERAL AUTHORITY HAS REGULATED SUCH
TRANSACTIONS OR ACTIVITY, AND, FINALLY, WHETHER THE COMMERCE CLAUSE BY
ITS OWN FORCE, IN CASE FEDERAL LAW HAS NOT ACTUALLY TAKEN CONTROL,
EXCLUDES THE STATE FROM THE EXERCISE OF THE POWER IT HAS HERE
ASSERTED. 

FOR MANY YEARS THE PETITIONER, A NORTH DAKOTA CORPORATION, CONDUCTED
A CUSTOMHOUSE BROKERAGE BUSINESS AT PORTAL, NORTH DAKOTA, A PORT OF
ENTRY FROM CANADA BY WAY OF THE CANADIAN PACIFIC RAILWAY.  IN JULY,
1940, THE CANADIAN PACIFIC RE-ROUTED MOST OF ITS SHIPMENTS WHEREBY THEY
NO LONGER ENTERED THE UNITED STATES THROUGH PORTAL BUT CAME THROUGH
NOYES, MINNESOTA, WITH THE RESULT THAT MORE THAN 90% OF UNION'S
BUSINESS WAS DIVERTED FROM PORTAL.  AFTER NOVEMBER, 1940, AT WHICH TIME
RESPONDENT JENSEN RESIGNED AS OFFICER OF UNION UNDER CIRCUMSTANCES
GIVING RISE TO THIS SUIT, UNION BEGAN TO DO BUSINESS AT NOYES AND WAS
DOING BUSINESS IN MINNESOTA WHEN IT BROUGHT THIS SUIT.  WE SHALL
OUTLINE THE NATURE OF THIS CUSTOMHOUSE BROKERAGE BUSINESS ONLY SO FAR
AS IS RELEVANT TO A CONSIDERATION OF OUR PROBLEM. 

ON GOODS SHIPPED FROM CANADA INTO THIS COUNTRY THE CONSIGNEE OF
IMPORTED MERCHANDISE MUST "MAKE ENTRY" OF THEM AT THE OFFICE OF THE
COLLECTOR OF CUSTOMS AT NOYES EITHER IN PERSON OR BY AN AUTHORIZED
AGENT, AND THIS MUST BE DONE WITHIN FORTY-EIGHT HOURS OF THE REPORT OF
THE VEHICLE WHICH CARRIED THE GOODS UNLESS THE COLLECTOR EXTENDS THE
TIME.  TARIFF ACT OF 1930, 46 STAT. 590, 722, 52 STAT. 1083, 19 U.S.C.
SEC. 1484(A).  TO MAKE ENTRY, THE CONTENTS AND VALUE OF THE SHIPMENT
MUST BE DECLARED AND THE TARIFF ESTIMATED, AND THE PRODUCTION OF A
CERTIFIED INVOICE AND A BILL OF LADING IS GENERALLY REQUIRED.  19
U.S.C. SEC. 1484(B)(C)(E)(G).  SPEED IN MAKING ENTRY IS VITAL, BECAUSE
GOODS CANNOT PROCEED TO THEIR ULTIMATE DESTINATION UNTIL ITS
COMPLETION.  APART FROM THE FACT THAT IMPORTERS CANNOT ALWAYS OR EVEN
OFTEN MAKE ENTRIES IN PERSON, THE PROCEDURE MAKES DEMANDS UPON SKILL
AND EXPERIENCE.  THE SPECIALIST IN THESE SERVICES IS THE CUSTOMHOUSE
BROKER.  IN ADDITION, HE ADVANCES THE DUTY IN ORDER THAT THE GOODS MAY
BE CLEARED.  19 U.S.C. SEC. 1505.  THE COMPETENCE OF THE BROKER ALSO
BEARS ON THE EFFICIENT COLLECTION OF CUSTOMS DUTIES IN THAT THE
LIKELIHOOD OF ADDITIONAL ASSESSMENT OR REFUND AFTER FINAL DETERMINATION
OF THE DUTY IS GREATLY LESSENED BY ACCURACY IN THE TENTATIVE
COMPUTATION.  BUT SINCE ERRORS AND DIFFERENCES OF OPINION ARE
INEVITABLE, TO INSURE COLLECTION OF DEFICIENCIES THE GOVERNMENT
REQUIRES A BOND PRIOR TO RELEASE.  19 U.S.C. SEC. 1499; 19 CODE FED.
REG. SEC. 6.27. 

THE BUSINESS OF CUSTOMHOUSE BROKERS, IT IS APPARENT, DEMANDS A SENSE
OF RESPONSIBILITY AND SKILL.  TO PROTECT IMPORTERS AS WELL AS THE
TREASURY, CONGRESS HAS AUTHORIZED THE SECRETARY OF THE TREASURY TO
"PRESCRIBE RULES AND REGULATIONS GOVERNING THE LICENSING AS CUSTOMHOUSE
BROKERS OF CITIZENS OF THE UNITED STATES OF GOOD MORAL CHARACTER, AND
OF CORPORATIONS, ASSOCIATIONS, AND PARTNERSHIPS, AND MAY REQUIRE AS A
CONDITION TO THE GRANTING OF ANY LICENSE, THE SHOWING OF SUCH FACTS AS
HE MAY DEEM ADVISABLE AS TO THE QUALIFICATIONS OF THE APPLICANT TO
RENDER VALUABLE SERVICE TO IMPORTERS AND EXPORTERS."  46 STAT. 759, 19
U.S.C. SEC. 1641(A).  ELABORATE REGULATIONS DEFINE THE INVESTIGATION TO
BE MADE OF THE CHARACTER AND REPUTATION OF THE APPLICANT AND HIS
EXPERIENCE IN CUSTOMS MATTERS.  31A CODE FED. REG. SEC. 11.3(B).  THE
APPLICANT IS THEN DIRECTED TO APPEAR BEFORE AN EXAMINING SUBCOMMITTEE
WHICH DETERMINES THE "APPLICANT'S KNOWLEDGE OF CUSTOMS LAW AND
PROCEDURE AND HIS FITNESS TO RENDER VALUABLE SERVICE TO IMPORTERS AND
EXPORTERS."  31A CODE FED. REG. SEC. 11.3(E)(F).  ON APPROVAL OF A
FAVORABLE REPORT OF THE SUBCOMMITTEE BY THE COMMITTEE ON ENROLLMENT AND
DISBARMENT OF THE TREASURY DEPARTMENT, A LICENSE ISSUES.  31A CODE FED.
REG. SECS. 11.3(F)(G), 11.4.  "A LICENSED CUSTOMHOUSE BROKER REQUIRES
NO FURTHER ENROLLMENT UNDER THE REGULATIONS IN THIS PART FOR THE
TRANSACTION, WITHIN THE CUSTOMS DISTRICTS IN WHICH HE IS LICENSED, OF
ANY BUSINESS RELATING SPECIFICALLY TO THE IMPORTATION OR EXPORTATION OF
MERCHANDISE UNDER CUSTOMS OR INTERNAL-REVENUE LAWS."  31A CODE FED.
REG. SEC. 11.5. 

UNION'S LICENSE AUTHORIZES IT TO DO BUSINESS IN DISTRICT NO. 34 WHICH
EMBRACES BOTH PORTAL, NORTH DAKOTA, AND NOYES, MINNESOTA.  19 CODE FED.
REG. SEC. 1.2.  THE REGULATIONS REQUIRE IT TO KEEP RECORDS OF ITS
FINANCIAL TRANSACTIONS AS CUSTOMHOUSE BROKER, AND ITS BOOKS AND PAPERS
MUST BE KEPT ON FILE AVAILABLE FOR AT LEAST FIVE YEARS.  31A CODE FED.
REG. SEC. 11.8.  BUSINESS RELATIONS WITH THOSE WHO HAVE BEEN DENIED A
LICENSE BECAUSE OF MORAL TURPITUDE OR THOSE WHOSE LICENSE HAS BEEN
REVOKED ARE PROHIBITED, AND THE LICENSEE IS UNDER A DUTY NOT TO PROMOTE
EVASION OF OBLIGATIONS TO THE GOVERNMENT.  PROMPT PAYMENT AND
ACCOUNTING OF FUNDS DUE TO THE GOVERNMENT OR HIS CLIENT ARE REQUIRED OF
THE BROKER, AND RESPONSIBLE AND ETHICAL CONDUCT IS GENERALLY ENJOINED. 
31A CODE FED. REG. SEC. 11.9. 

DOES THIS SCHEME OF FEDERAL REGULATION OF THE BUSINESS OF CUSTOMHOUSE
BROKERS PRECLUDE THE REQUIREMENT OF MINNESOTA LEGISLATION WHICH THE
SUPREME COURT OF THAT STATE HAS ENFORCED AGAINST UNION?  THIS BRINGS US
TO A CONSIDERATION OF THE PRECISE DEMAND AGAINST WHICH UNION PROTESTS. 
MINNESOTA HAS NOT SINGLED OUT THE CUSTOMHOUSE BROKERAGE BUSINESS FOR
LEGISLATION NOR HAS SHE MADE REQUIREMENTS OF FOREIGN CORPORATIONS DOING
CUSTOMHOUSE BROKERAGE BUSINESS.  WHAT IS IN CONTROVERSY IS THE
APPLICABILITY OF A GENERAL LAW OF MINNESOTA DEALING WITH ALL FOREIGN
CORPORATIONS.  MORE SPECIFICALLY, SEC. 20 OF THE MINNESOTA FOREIGN
CORPORATION ACT REQUIRES A CERTIFICATE OF ANY FOREIGN CORPORATION DOING
BUSINESS IN THE STATE AS A PREREQUISITE FOR MAINTAINING AN ACTION IN A
COURT OF THAT STATE.  IN ADDITION A FILING FEE OF FIVE DOLLARS AND
INITIAL LICENSE FEE OF FIFTY DOLLARS IS EXACTED ON MAKING APPLICATION
FOR A CERTIFICATE OF AUTHORITY.  SECS. 21(A)(1), 6.  SUCH AN
APPLICATION MUST CONTAIN THE NAME OF THE CORPORATION, ITS HOME STATE OR
COUNTRY, THE ADDRESS OF ITS PRINCIPAL OFFICE AND THAT OF ITS PROPOSED
REGISTERED OFFICE IN MINNESOTA, THE NAMES AND ADDRESSES OF ITS
DIRECTORS AND OFFICERS, A STATEMENT OF ITS AGGREGATE NUMBER OF
AUTHORIZED SHARES AND KINDRED INFORMATION.  SEC. 5.  THE APPLICANT MUST
FURTHERMORE CONSENT TO THE SERVICE OF PROCESS UPON IT AND APPOINT AN
AGENT UPON WHOM SERVICE CAN BE MADE, AND IN LIEU OF SUCH APPOINTMENT OR
IF THE AGENT CANNOT BE FOUND, SERVICE MAY BE MADE UPON THE SECRETARY OF
STATE.  SECS. 5(6), 13(A)(2).  A FOREIGN CORPORATION DOING BUSINESS IN
MINNESOTA WITHOUT A CERTIFICATE OF AUTHORITY IS SUBJECT TO A PENALTY
NOT EXCEEDING $1,000 AND "AN ADDITIONAL PENALTY NOT EXCEEDING $100.00
FOR EACH MONTH OR FRACTION THEREOF DURING WHICH IT SHALL CONTINUE TO
TRANSACT BUSINESS IN THIS STATE WITHOUT A CERTIFICATE OF AUTHORITY
THEREFOR."  SEC. 20(C).  HAVING OBTAINED SUCH A CERTIFICATE, THE
CORPORATION IS REQUIRED TO FILE ANNUAL REPORTS ON THE BASIS OF WHICH AN
ANNUAL FEE IS ASSESSED.  THE MEASURE OF THE FEE IS SUBSTANTIALLY THE
SAME AS THAT SET FOR DOMESTIC CORPORATIONS BUT IN ITS COMPUTATION THE
PROPERTY AND GROSS RECEIPTS OF A FOREIGN CORPORATION ARE ALLOCATED
BETWEEN THOSE DERIVED FROM WITHIN AND THOSE DERIVED FROM WITHOUT
MINNESOTA AND CREDIT IS GIVEN FOR THE LATTER.  SEC. 15; CF. MINN. L.
1935, C. 230, SEC. 2. 

WE HAVE BEFORE US ONLY ONE NARROW ASPECT OF THIS MINNESOTA
LEGISLATION, NAMELY THE POWER OF MINNESOTA TO DENY TO UNION ACCESS TO
ITS COURTS BECAUSE IT HAS NOT OBTAINED A CERTIFICATE REQUIRED OF ALL
FOREIGN CORPORATIONS DOING BUSINESS IN THE STATE.  WE HAVE NOT BEFORE
US THE TAXING POWER OF MINNESOTA OVER SUCH A BUSINESS AS THAT OF UNION,
FOR WE DO NOT KNOW THE EXTENT OR NATURE OF THE POWER TO TAX THAT
MINNESOTA WOULD CLAIM AGAINST UNION. 

OF COURSE MINNESOTA COULD NOT DENY ACCESS TO ITS COURTS TO UNION
MERELY BECAUSE IT IS ENGAGED IN THE CUSTOMS BROKERAGE BUSINESS.  SEE
SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, AND DOUGLAS V. NEW YORK,
N.H. & H.R. CO., 279 U.S. 377.  BUT THE LIMITED AND DEFINED CONTROL
WHICH FEDERAL AUTHORITY HAS THUS FAR SEEN FIT TO ASSERT OVER
CUSTOMHOUSE BROKERS DOES NOT DENY TO MINNESOTA THE POWER TO SUBJECT
UNION TO THE SAME DEMAND WHICH IT MAKES OF ALL OTHER FOREIGN
CORPORATIONS SEEKING THE FACILITIES OF MINNESOTA'S COURTS.  THE FEDERAL
REQUIREMENTS AND THIS STATE REQUIREMENT CAN MOVE FREELY WITHIN THE
ORBITS OF THEIR RESPECTIVE PURPOSES WITHOUT IMPINGING UPON ONE
ANOTHER.  THE FEDERAL REGULATIONS ARE CONCERNED SOLELY WITH THE
RELATIONS OF THE CUSTOMHOUSE BROKER TO THE UNITED STATES AND TO THE
IMPORTER AND EXPORTER.  THE LIMITED FEDERAL SUPERVISION OF THE
FINANCIAL ACTIVITIES OF UNION IS RESTRICTED TO THESE FEDERAL
INTERESTS.  SUCH SUPERVISION DOES NOT TOUCH THE INTEREST OF THE STATE
IN THE PROTECTION OF THOSE WHO HAVE OTHER DEALINGS WITH UNION, AND
THEREFORE DOES NOT PREEMPT APPROPRIATE MEANS FOR THEIR PROTECTION. 

IN A SITUATION LIKE THE PRESENT, WHERE AN ENTERPRISE TOUCHES
DIFFERENT AND NOT COMMON INTERESTS BETWEEN NATION AND STATE, OUR TASK
IS THAT OF HARMONIZING THESE INTERESTS WITHOUT SACRIFICING EITHER.  THE
PROPER ATTITUDE OF MIND FOR MAKING SUCH AN ACCOMMODATION IS ILLUSTRATED
BY FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S. 17.  THE TARIFF ACT OF 1930
IN THIS CASE, AS THE WAREHOUSING ACT IN THAT CASE, CONFERS UPON
LICENSEES CERTAIN PRIVILEGES, AND SECURES TO THE FEDERAL GOVERNMENT BY
MEANS OF THESE LICENSING PROVISIONS A MEASURE OF CONTROL OVER THOSE
ENGAGED IN THE CUSTOMHOUSE BROKERAGE BUSINESS.  BUT SUCH CIRCUMSCRIBED
CONTROL BY THE FEDERAL GOVERNMENT DOES NOT IMPLY IMMUNITY FROM CONTROL
BY THE STATE WITHIN THE SPHERE OF ITS SPECIAL INTERESTS.  "THE
GOVERNMENT EXERCISES THAT CONTROL IN THE FURTHERANCE OF A GOVERNMENTAL
PURPOSE TO SECURE FAIR AND UNIFORM BUSINESS PRACTICES.  BUT THE
APPELLANT, IN THE ENJOYMENT OF THE PRIVILEGE, IS ENGAGED IN ITS OWN
BEHALF, NOT THE GOVERNMENT'S, IN THE CONDUCT OF A PRIVATE BUSINESS FOR
PROFIT."  FEDERAL COMPRESS CO. V. MCLEAN, SUPRA AT 22-23.  THE STATE
AND FEDERAL REGULATIONS HERE APPLICABLE HAVE THEIR SEPARATE SPHERES OF
OPERATION.  THE FEDERAL GOVERNMENT HAS DEALT WITH THE MANNER IN WHICH
CUSTOMHOUSE BROKERAGE IS CARRIED ON.  MINNESOTA, HOWEVER, IS
LEGITIMATELY CONCERNED WITH SAFEGUARDING THE INTERESTS OF ITS OWN
PEOPLE IN BUSINESS DEALINGS WITH CORPORATIONS NOT OF ITS OWN CHARTERING
BUT WHO DO BUSINESS WITHIN ITS BORDERS.  UNION'S BUSINESS IS LOCALIZED
IN MINNESOTA, IT BUYS MATERIALS AND SERVICES FROM PEOPLE IN THAT STATE,
IT ENTERS INTO BUSINESS RELATIONSHIPS, AS THIS CASE, A SUIT AGAINST ITS
FORMER PRESIDENT, ILLUSTRATES, WHOLLY OUTSIDE OF THE ARRANGEMENTS IT
MAKES WITH IMPORTERS OR EXPORTERS.  TO SAFEGUARD RESPONSIBILITY IN ALL
SUCH DEALINGS, DEALINGS QUITE OUTSIDE TRANSACTIONS IMMEDIATELY
CONNECTED WITH IMPORT AND EXPORT, MINNESOTA HAS MADE THE SAME EXACTIONS
OF UNION AS OF EVERY OTHER FOREIGN CORPORATION ENGAGED IN SIMILAR
TRANSACTIONS.  THE FEDERAL GOVERNMENT HAS RECOGNIZED THAT THERE IS SUCH
A PROPER FIELD FOR STATE REGULATION COMPLEMENTARY TO FEDERAL
REGULATION, FOR THE TREASURY HAS PROVIDED THAT "A LICENSEE HAVING A
LICENSE IN FORCE IN ONE DISTRICT MAY ON APPLICATION TO THE COMMITTEE BE
GRANTED A LICENSE TO TRANSACT BUSINESS IN ANOTHER DISTRICT WITHOUT
FURTHER EXAMINATION, PROVIDED IT APPEARS ON INVESTIGATION THAT THE
LICENSEE IS AUTHORIZED TO DO BUSINESS IN THE STATE OR STATES IN WHICH
SUCH OTHER DISTRICT IS SITUATED."  31A CODE FED. REG. SEC. 11.6.  THOSE
WHO ARE RESPONSIBLE FOR PROTECTING THE INTERESTS OF THE REVENUE AS WELL
AS OF COMMERCE HAVE THUS GIVEN EMPHATIC INDICATION THAT A STATE HAS A
LEGITIMATE INTEREST IN THE REGULATION OF THOSE ENGAGED IN THE BROKERAGE
BUSINESS WITHIN ITS BORDERS.  WHERE THE GOVERNMENT HAS PROVIDED FOR
COLLABORATION THE COURTS SHOULD NOT FIND CONFLICT.  SEE SAVAGE V.
JONES, 225 U.S. 501, AND KELLY V. WASHINGTON, 302 U.S. 1.    THIS
BRINGS US TO THE FINAL QUESTION.  DOES THE MINNESOTA LEGISLATION DO
THAT WHICH THE COMMERCE CLAUSE WAS DESIGNED TO PREVENT - DOES IT
EXPRESS HOSTILITY TOWARD THOSE ENGAGED IN FOREIGN COMMERCE OR
PRACTICALLY OBSTRUCT ITS CONDUCT?  WHAT WE HAVE SAID MAKES IT
ABUNDANTLY CLEAR THAT THE BUSINESS OF UNION IS RELATED TO THE PROCESS
OF FOREIGN COMMERCE.  AS THE TRIAL COURT FOUND, THE CUSTOMHOUSE BROKER
IN CLEARING THE SHIPMENTS, "AIDS IN THE COLLECTION OF CUSTOMS DUTIES
AND FACILITATES THE FREE FLOW OF COMMERCE BETWEEN A FOREIGN COUNTRY AND
THE UNITED STATES."  THE FEES EXACTED BY CUSTOMHOUSE BROKERS "ARE
CHARGES UPON THE COMMERCE ITSELF"; THEY ARE CHARGES FOR SERVICES
AFFORDED IN THE MOVEMENT OF GOODS BEYOND THE BOUNDARIES OF A STATE. 
SEE HOPKINS V. UNITED STATES, 171 U.S. 578, 591-2; WICKARD V. FILBURN,
317 U.S. 111, 122. 

BUT THE COMMERCE CLAUSE DOES NOT CUT THE STATES OFF FROM ALL
LEGISLATIVE RELATION TO FOREIGN AND INTERSTATE COMMERCE.  SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177; WESTERN LIVE
STOCK V. BUREAU, 303 U.S. 250.  SUCH COMMERCE INTERPENETRATES THE
STATES, AND NO UNDISPUTED GENERALITY ABOUT THE FREEDOM OF COMMERCE FROM
STATE ENCROACHMENT CAN DELIMIT IN ADVANCE THE INTERACTING AREAS OF
STATE AND NATIONAL POWER WHEN CONGRESS HAS NOT BY LEGISLATION
FORECLOSED STATE ACTION.  THE INCIDENCE OF THE PARTICULAR STATE
ENACTMENT MUST DETERMINE WHETHER IT HAS TRANSGRESSED THE POWER LEFT TO
THE STATES TO PROTECT THEIR SPECIAL STATE INTERESTS ALTHOUGH IT IS
RELATED TO A PHASE OF A MORE EXTENSIVE COMMERCIAL PROCESS. 

THE INFORMATION HERE SOUGHT OF ALL FOREIGN CORPORATIONS BY MINNESOTA
AS A BASIS FOR GRANTING THEM CERTIFICATES TO DO BUSINESS WITHIN HER
BORDERS IS A CONVENTIONAL MEANS OF ASSURING RESPONSIBILITY AND FAIR
DEALING ON THE PART OF FOREIGN CORPORATIONS COMING INTO A STATE.  APART
FROM ANY QUESTION OF INTERFERENCE WITH FOREIGN COMMERCE SUCH A
REQUIREMENT IS PLAINLY WITHIN THE REGULATORY POWER OF A STATE.  BUT, AS
WE HAVE NOTED, WHILE THE BUSINESS OF UNION IS THAT OF A CUSTOMHOUSE
BROKER, ITS ACTIVITIES ARE NOT CONFINED TO ITS SERVICES AT THE PORT OF
ENTRY.  IT HAS LOCALIZED ITS BUSINESS, AND TO FUNCTION EFFECTIVELY IT
MUST HAVE A WIDE VARIETY OF DEALINGS WITH THE PEOPLE IN THE COMMUNITY. 
THE SAME CONSIDERATIONS THAT JUSTIFY THE PARTICULAR REGULATORY MEASURE
ALONE BEFORE US, NAMELY THE REQUIREMENT OF A CERTIFICATE OF AUTHORITY
IN THE CASE OF FOREIGN CORPORATIONS CARRYING ON BUSINESS OTHER THAN
CUSTOMHOUSE BROKERAGE, APPLY TO THE CARRYING ON OF UNION'S BUSINESS IN
MINNESOTA.  THE BURDEN, SUCH AS IT IS, FALLS ON FOREIGN BUSINESSES THAT
COMMINGLE WITH MINNESOTA PEOPLE, AND THE BURDEN, A FEE OF FIFTY
DOLLARS, IS SUFFICIENTLY SMALL FAIRLY TO REPRESENT THE COST OF
GOVERNMENTAL SUPERVISION OF FOREIGN BUSINESS ENTERPRISES COMING INTO
MINNESOTA.  IN SHORT, IT IS A SUPERVISORY AND NOT A FISCAL MEASURE.  AS
SUCH IT IMPOSES COSTS UPON THE STATE WHICH THOSE WHO ARE SUPERVISED
MUST, AS IS OFTEN THE CASE, THEMSELVES PAY.  SEE CLYDE MALLORY LINES V.
ALABAMA, 296 U.S. 261, 267. 

WE HAVE CONSIDERED LITERALLY SCORES OF CASES IN WHICH THE STATES HAVE
EXERTED AUTHORITY OVER FOREIGN CORPORATIONS AND IN DOING SO HAVE DEALT
WITH ASPECTS OF INTERSTATE AND FOREIGN COMMERCE.  WHATEVER MAY BE THE
GENERALITIES TO WHICH THESE CASES GAVE UTTERANCE AND ABOUT WHICH THERE
HAS BEEN, ON THE WHOLE, RELATIVELY LITTLE DISAGREEMENT, THE FATE OF
STATE LEGISLATION IN THESE CASES HAS NOT BEEN DETERMINED BY THESE
GENERALITIES BUT BY THE WEIGHT OF THE CIRCUMSTANCES AND THE PRACTICAL
AND EXPERIENCED JUDGMENT IN APPLYING THESE GENERALITIES TO THE
PARTICULAR INSTANCES.  TO REVIEW THEM TO ANY EXTENT WOULD BE WRITING
THE HISTORY OF THE ADJUDICATORY PROCESS IN RELATION TO THE COMMERCE
CLAUSE.  SUFFICE IT TO SAY THAT WE HAVE NOT HERE A CASE OF A FOREIGN
CORPORATION MERELY COMING INTO MINNESOTA TO CONTRIBUTE TO OR TO
CONCLUDE A UNITARY INTERSTATE TRANSACTION, SEE INTERNATIONAL TEXTBOOK
CO. V. PIGG, 217 U.S. 91; DAHNKE-WALKER CO. V. BONDURANT, 257 U.S. 282,
NOR OF THE STATE'S WITHHOLDING "THE RIGHT TO SUE EVEN IN A SINGLE
INSTANCE UNTIL THE CORPORATION RENDERS ITSELF AMENABLE TO SUIT IN ALL
THE COURTS OF THE STATE BY WHOSOEVER CHOOSES TO SUE IT THERE."  SIOUX
REMEDY CO. V. COPE, 235 U.S. 197, 205.  THE BUSINESS OF UNION, WE HAVE
SEEN, IS LOCALIZED IN MINNESOTA, AND MINNESOTA, IN THE REQUIREMENT
BEFORE US, MERELY SEEKS TO REGULARIZE ITS CONDUCT.  NOR IS THERE HERE
AN ATTEMPT TO TAX PROPERTY OR GROSS RECEIPTS EARNED OUTSIDE THE STATE,
AS WAS THE CASE IN LOONEY V. CRANE CO., 245 U.S. 178.  IN THE ABSENCE
OF APPLICABLE FEDERAL REGULATION, A STATE MAY IMPOSE NON-DISCRIMINATORY
REGULATIONS ON THOSE ENGAGED IN FOREIGN COMMERCE "FOR THE PURPOSE OF
INSURING THE PUBLIC SAFETY AND CONVENIENCE; ...  A LICENSE FEE NO
LARGER IN AMOUNT THAN IS REASONABLY REQUIRED TO DEFRAY THE EXPENSE OF
ADMINISTERING THE REGULATIONS MAY BE DEMANDED."  SPROUT V. SOUTH BEND,
277 U.S. 163, 169. 

THE COMMERCE CLAUSE DOES NOT DEPRIVE MINNESOTA OF THE POWER TO
PROTECT THE SPECIAL INTEREST THAT HAS BEEN BROUGHT INTO PLAY BY UNION'S
LOCALIZED PURSUIT OF ITS SHARE IN THE COMPREHENSIVE PROCESS OF FOREIGN
COMMERCE.  TO DENY THE STATES THE POWER TO PROTECT SUCH SPECIAL
INTERESTS WHEN CONGRESS HAS NOT SEEN FIT TO EXERT ITS OWN LEGISLATIVE
POWER WOULD BE TO GIVE AN IMMUNITY TO DETACHED ASPECTS OF COMMERCE
UNRELATED TO THE OBJECTIVES OF THE COMMERCE CLAUSE.  BY ITS OWN FORCE
THAT CLAUSE DOES NOT IMPLY RELIEF TO THOSE ENGAGED IN INTERSTATE OR
FOREIGN COMMERCE FROM THE DUTY OF PAYING AN APPROPRIATE SHARE FOR THE
MAINTENANCE OF THE VARIOUS STATE GOVERNMENTS.  NOR DOES IT PRECLUDE A
STATE FROM GIVING NEEDFUL PROTECTION TO ITS CITIZENS IN THE COURSE OF
THEIR CONTACTS WITH BUSINESSES CONDUCTED BY OUTSIDERS WHEN THE
LEGISLATION BY WHICH THIS IS ACCOMPLISHED IS GENERAL IN ITS SCOPE, IS
NOT AIMED AT INTERSTATE OR FOREIGN COMMERCE, AND INVOLVES MERELY
BURDENS INCIDENT TO EFFECTIVE ADMINISTRATION.  AND SO WE CONCLUDE THAT
IN DENYING UNION THE RIGHT TO GO TO HER COURTS BECAUSE UNION DID NOT
OBTAIN A CERTIFICATE TO CARRY ON ITS BUSINESS AS REQUIRED BY THE
FOREIGN CORPORATION ACT, MINNESOTA OFFENDED NEITHER FEDERAL LEGISLATION
NOR THE COMMERCE CLAUSE.  JUDGMENT AFFIRMED. 

MR. JUSTICE JACKSON AND MR. JUSTICE RUTLEDGE DISSENT. 
..END :








KANSAS V. MISSOURI, 322 U.S. 213 


NO. 9, ORIGINAL.  ARGUED JANUARY 31, 1944.  - DECIDED MAY 8, 1944. 


UPON THE EVIDENCE IN THIS CASE, IN WHICH KANSAS CLAIMS TITLE TO
CERTAIN LAND NOW LYING ON THE MISSOURI SIDE OF THE MISSOURI RIVER IN
THE FORBES BEND AREA, KANSAS HAS FAILED TO SHOW THAT, AT ANY TIME
DURING THE PERIOD IN QUESTION, THE MAIN CHANNEL OF THE MISSOURI RIVER
SHIFTED FROM A COURSE SUCH AS THE RIVER NOW FOLLOWS (OR ONE SLIGHTLY
CLOSER TO THE KANSAS BLUFFS) TO ONE FOLLOWING THE COURSE OF THE CHANNEL
ON THE MISSOURI SIDE WHEN THE FLOW WAS DIVIDED.  THEREFORE THE LAND IN
DISPUTE MUST BE AWARDED TO MISSOURI, AND THE BOUNDARY WILL BE FIXED IN
ACCORDANCE WITH THE RECOMMENDATIONS OF THE SPECIAL MASTER.  PP. 214,
232. 

KANSAS V. MISSOURI. 

BILL IN EQUITY. 

BILL OF COMPLAINT BY KANSAS AGAINST MISSOURI TO DETERMINE AND FIX THE
BOUNDARY BETWEEN THE STATES.  LEAVE TO FILE THE BILL WAS GRANTED BY
THIS COURT, 310 U.S. 614. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

KANSAS BRINGS THIS ORIGINAL SUIT AGAINST MISSOURI TO HAVE DETERMINED
THEIR COMMON BOUNDARY FROM THE MOUTH OF THE KAW OR KANSAS RIVER
NORTHWARDLY, OVER A DISTANCE OF APPROXIMATELY 128 MILES, ALONG THE
CHANNEL OF THE MISSOURI RIVER TO ITS INTERSECTION WITH KANSAS' NORTH
BOUNDARY LINE. 

AT THE TIME OF KANSAS' ADMISSION TO THE UNION, JANUARY 29, 1861, THE
WESTERN BOUNDARY OF MISSOURI FOLLOWED THE THREAD OF THE MISSOURI RIVER,
THAT IS, THE MIDDLE LINE OF ITS MAIN NAVIGABLE CHANNEL, BETWEEN THESE
POINTS.  FN1  THIS LINE THEN BECAME THE COMMON BOUNDARY OF THE TWO
STATES.  FN2  THE BILL OF COMPLAINT WAS FILED IN 1940.  IT ALLEGED THAT
THE THREAD OF THE STREAM HAD SHIFTED FREQUENTLY, SOMETIMES SUDDENLY,
SOMETIMES GRADUALLY, AND THAT THESE CHANGES HAD CAUSED CONTROVERSIES
CONCERNING THE TRUE BOUNDARY.  WHEN THE PROCEEDING BEGAN IT WAS IN
DISPUTE AT A NUMBER OF PLACES.  FN3  BUT DURING PENDENCY OF THE SUIT
THE PARTIES HAVE SETTLED ALL DIFFERENCES EXCEPT ONE.  THIS RELATES TO
THE SECTION OF THE BOUNDARY IN THE FORBES BEND REGION.  FN4 

AFTER THE FILING OF THE SUIT A MASTER WAS APPOINTED.  EXTENSIVE
HEARINGS WERE HELD.  BOTH DOCUMENTARY AND ORAL EVIDENCE WAS PRESENTED. 
THE MASTER HAS FILED HIS REPORT, WHICH MAKES FINDINGS AND CONCLUSIONS
IN FAVOR OF MISSOURI.  KANSAS SAYS THESE ARE CONTRARY TO THE LAW AND TO
THE WEIGHT OF THE EVIDENCE. 

THE LAND IN DISPUTE CONSISTS OF ABOUT 2,000 ACRES.  THIS NOW LIES ON
THE MISSOURI SIDE OF THE RIVER TOWARD THE LOWER END OF FORBES BEND. 
KANSAS CLAIMS THIS LAND WAS AT ONE TIME SOIL ACCRETED TO THE KANSAS
BANK, WHICH AN AVULSIVE CHANGE IN THE COURSE OF THE MAIN CHANNEL HAS
PUT BACK ON THE MISSOURI SIDE; OR, IN THE ALTERNATIVE, THAT THE TRACT
FORMED AS AN ISLAND ON THE KANSAS SIDE OF THE MAIN CHANNEL AND, AS A
RESULT OF A SUDDEN SHIFT IN THAT CHANNEL TO THE OTHER SIDE OF THE
ISLAND AND THE DRYING UP OF THE OLD COURSE, IT HAS BECOME PHYSICALLY
ATTACHED TO MISSOURI.  IN EITHER EVENT, KANSAS URGES, IT FOLLOWS THAT
THE BOUNDARY REMAINS AT THE CENTER OF THE RIVER'S FORMER MAIN CHANNEL. 
MISSOURI DENIES THAT THE LAND ACCRETED TO KANSAS, THAT THERE WAS
AVULSION, OR THAT THE ISLAND EVER LAY ON THE KANSAS SIDE OF THE MAIN
CHANNEL. 

THE STATES ARE NOT IN DISPUTE ABOUT THE APPLICABLE LAW.  THEY AGREE
THAT WHEN CHANGES TAKE PLACE BY THE SLOW AND GRADUAL PROCESS OF
ACCRETION THE BOUNDARY MOVES WITH THE SHIFTING IN THE MAIN CHANNEL'S
COURSE.  FN5  LIKEWISE, THEY AGREE THAT A SUDDEN OR AVULSIVE CHANGE IN
THAT COURSE DOES NOT MOVE THE BOUNDARY, BUT LEAVES IT WHERE THE CHANNEL
FORMERLY HAD RUN.  FN6 

HOWEVER, THE PARTIES ARE SHARPLY AT ODDS OVER THE FACTS AND THE
CONCLUSIONS TO BE DRAWN FROM THE EVIDENCE.  IN VIEW OF THIS AND SINCE
WE THINK THE FACTS AS PRESENTED BY THE EVIDENCE ARE CONCLUSIVE OF THE
CONTROVERSY, IT BECOMES NECESSARY TO SKETCH THEM AND TO REFER TO
PORTIONS OF THE EVIDENCE IN ORDER TO GIVE AN UNDERSTANDING OF THE
ISSUES AND THE BASIS FOR OUR CONCLUSIONS. 

                                  I. 

FORBES BEND LIES BETWEEN DONIPHAN COUNTY, KANSAS, AND HOLT COUNTY,
MISSOURI.  THE DISPUTED BOUNDARY, ACCORDING TO THE MASTER'S FINDINGS,
EXTENDS ALONG THE MAIN CHANNEL OF THE RIVER AS IT NOW FLOWS FOR A
DISTANCE OF ABOUT FIVE MILES BENDING SOUTHEASTERLY FROM CHANNEL MILEAGE
STATION 515 TO STATION 510(AS MEASURED AND MARKED IN 1890).  AS THE
RIVER ENTERS FORBES BEND FROM THE NORTH IT FLOWS EAST OF SOUTH.  NEAR
THE POINT OF ENTRANCE IT IS JOINED BY WOLF CREEK.  THIS COMES INTO THE
RIVER FROM THE KANSAS SIDE IN AN EASTERLY DIRECTION.  THE MOUTH OF WOLF
CREEK IS ROUGHLY ADJACENT TO STATION 515.  FROM THIS POINT THE KANSAS
BLUFFS SWING IN A GRADUAL CONVEX CURVE SOUTHEASTERLY UNTIL THEY REACH A
POINT ABOVE STATION 510.  ON THE MISSOURI SIDE THE BLUFFS RUN, AS THEY
DO ON THE KANSAS SIDE, GENERALLY SOUTHEASTERLY.  THROUGHOUT THE FORBES
BEND REGION THE DISTANCE AS THE CROW FLIES FROM THE KANSAS BLUFFS TO
THE MISSOURI BLUFFS IS FOUR MILES, MORE OR LESS.  ADJACENT TO AND
PARALLEL WITH THE MISSOURI BLUFFS, BUT BETWEEN THEM AND THE RIVER, LIE
TRACKS OF THE BURLINGTON RAILROAD. 

THE MISSOURI RIVER IS A VAGRANT, TURBULENT STREAM.  ITS NAME REFLECTS
THIS CHARACTER.  THE BIG MUDDY IS SAID TO CARRY MORE SILT THAN ANY
OTHER RIVER EXCEPT THE YELLOW RIVER IN CHINA.  IT IS CONSTANTLY
CHANGING ITS COURSE WITHIN THE REGION BETWEEN ITS BLUFFS, SHIFTING FROM
SIDE TO SIDE AS NATURAL FORCES WORK UPON ITS FLOW.  EXPERT TESTIMONY IS
THAT A CHANGE OF CONDITIONS IN ONE BEND PRODUCES CHANGES AS GREAT, OR
NEARLY SO, IN THE NEXT BEND BELOW. 

THE RIVER FLOWS AROUND A BIG BEND, KNOWN AS WOLF CREEK BEND, JUST
BEFORE IT REACHES THE MOUTH OF WOLF CREEK.  HERE IT RUNS ALMOST DUE
SOUTH.  IT IS CONCEDED BY ALL THAT IN 1900 THE RIVER FLOWED
SOUTHEASTERLY IN A SINGLE CHANNEL FROM THE MOUTH OF WOLF CREEK, HUGGING
THE KANSAS BLUFFS THROUGHOUT THE ENTIRE COURSE OF FLOW TO STATION 510. 
AS IT PRESENTLY FLOWS, THE RIVER MAKES A WIDE ARC, FIRST TO THE LEFT OR
MISSOURI BANK IN A COURSE ALMOST DUE EAST OR NORTH OF EAST, BEFORE IT
TURNS SHARPLY TO THE SOUTH AGAIN AT A POINT MIDWAY BETWEEN THE BLUFFS,
AND FOLLOWS THIS SOUTHERLY COURSE UNTIL IT STRIKES THE OLD MAIN CHANNEL
AT THE KANSAS BLUFFS ABOVE STATION 510.  THIS BEND NOW IS IN THE FORM
OF A BOW, WITH THE RIVER PROPER FORMING THE BOW AND THE OLD CHANNEL
ALONG THE KANSAS BANK ITS STRING.  ROUGHLY, THEREFORE, THE DIFFERENCE
BETWEEN THE PRESENT FLOW THROUGH FORBES BEND AND THE FLOW IN 1900 IS
THE DIFFERENCE BETWEEN THE BOW AND THE STRING.  AT THE CENTER OF THE
BOW THE DISTANCE BETWEEN THE OLD CHANNEL AND THE PRESENT ONE APPEARS TO
BE AT MOST ONE MILE. 

HOWEVER, AS WILL APPEAR, THE CHANNEL'S PRESENT LOCATION RESULTS FROM
MORE COMPLEX CHANGES THAN MERELY A MOVEMENT OF THE RIVER NORTH AND EAST
OVER THE DISTANCE LYING BETWEEN THESE TWO CHANNELS.  ACCORDING TO THE
GREATLY PREPONDERANT THOUGH NOT UNDISPUTED EVIDENCE, THERE WAS A
DIVISION OF CHANNELS IN FORBES BEND FROM ABOUT 1914 OR 1917 TO 1927 OR
1928.  DURING THIS TIME THE MORE WESTERLY OR KANSAS CHANNEL LAY
SLIGHTLY WEST OF WHERE THE PRESENT CHANNEL RUNS.  THE MISSOURI OR
EASTERLY CHANNEL LAY ON THE OTHER SIDE OF THE AREA IN DISPUTE, WHICH
THEN FORMED PART OF A BAR OR ISLAND.  AT ONE TIME, PROBABLY ABOUT 1922
OR 1923, DURING THE PERIOD OF GREATEST EROSION OF THE MISSOURI BANK,
THIS CHANNEL CAME WITHIN HALF A MILE OR LESS OF THE BURLINGTON TRACKS. 
THE MISSOURI CHANNEL, WITH THE RIVER ABOVE IT, THEN FOLLOWED A COURSE
ALMOST DUE EAST OR SLIGHTLY NORTH OF EAST FROM BELOW THE MOUTH OF WOLF
CREEK TO THE POINT OF ITS CLOSEST APPROACH TO THE RAILROAD.  THEN IT
SWUNG SHARPLY TO THE SOUTH AND IN A CURVING LINE CAME BACK TO JOIN THE
ORIGINAL CHANNEL NEAR THE KANSAS BLUFFS ABOVE STATION 510. 

FROM THE RECITAL THUS FAR IT IS CLEAR THAT IN 1900 THE LAND WHICH
THEN LAY WHERE THE DISPUTED TRACT NOW LIES WAS MISSOURI LAND.  THIS IS
UNDISPUTED.  LIKEWISE, THE TRACT NOW IS ATTACHED TO MISSOURI ON THE
EASTERLY BANK OF THE RIVER.  THIS IS BECAUSE THE MISSOURI CHANNEL DRIED
UP DURING SOME FIVE TO EIGHT YEARS BEGINNING AROUND 1927 OR EARLIER. 
BUT, BEFORE THAT PROCESS BEGAN, FOR MANY YEARS THE LAND IN QUESTION LAY
BETWEEN THE TWO CHANNELS.  AND IT IS FROM CONFLICTING VIEWS CONCERNING
WHETHER, HOW AND WHEN THESE MAJOR CHANGES TOOK PLACE THE PARTIES DERIVE
THEIR RESPECTIVE CLAIMS TO SOVEREIGNTY OVER THIS SOIL. 

KANSAS FIRST CLAIMS THAT THE LAND IN DISPUTE BECAME HERS BY
ACCRETION.  HER PRINCIPAL THEORY IS THAT BEGINNING IN 1900 AND DURING A
PERIOD EXTENDING TO 1917 OR TO 1927 THE RIVER CHANNEL, DUE TO CHANGES
UPSTREAM, GRADUALLY MOVED OUT FROM THE KANSAS BLUFFS OVER A DISTANCE OF
SOME THREE TO THREE AND A HALF MILES TO THE NORTH AND EAST.  FN7  AS
MISSOURI SOIL THUS WAS BEING CUT AWAY, IT IS SAID THE LAND IN QUESTION
WAS BUILT UP GRADUALLY ON THE KANSAS SIDE.  IN ANY EVENT, IF IT WAS NOT
CONNECTED FIRMLY TO THE KANSAS SHORE IT WAS SEPARATED ONLY BY NARROW
AND IRREGULAR CHUTES AND SLOUGHS, NOT BY ANY SORT OF REGULAR CHANNEL. 
THEN EITHER IN 1917  FN8  OR IN 1927  FN9  ICE JAMS FORMING IN THE
RIVER CAUSED IT SUDDENLY TO LEAVE ITS CHANNEL NEAR THE MISSOURI BLUFFS
AND TO OPEN A NEW ONE NEAR WHERE THE PRESENT CHANNEL RUNS.  RELYING
UPON ACCRETION FROM 1900 TO 1917 OR 1927 FOR ACQUISITION OF THE
DISPUTED AREA, KANSAS RELIES UPON AVULSION IN 1917 OR 1927 TO PREVENT
LOSING THE AREA AGAIN TO MISSOURI.  HER ALTERNATIVE THEORY OF ISLAND
FORMATION IS RELIED ON IN CASE THAT OF ACCRETION AND AVULSION FAILS ON
THE PROOF.  BY THIS, THE ISLAND FORMED ON HER SIDE OF THE MAIN CHANNEL
AND THE SUBSEQUENT SHIFT OF THE MAIN FLOW TO THE KANSAS CHANNEL AND
DRYING UP OF THE MISSOURI CHANNEL DID NOT AFFECT HER JURISDICTION. 

MISSOURI MEETS ALL OF KANSAS' CLAIMS WITH DENIAL ON THE FACTS.  SHE
SAYS FIRST THAT THE LAND IN QUESTION HAS BEEN AT NO TIME ACCRETED SOIL
OF KANSAS.  ON THE CONTRARY, SHE CLAIMS THAT THE DISPUTED AREA FORMED
AS AN ISLAND IN THE RIVER BED BEGINNING ABOUT 1910 OR 1912, AND FROM
THEN UNTIL 1927 OR 1928 THERE WAS A DIVIDED FLOW AROUND THIS ISLAND, A
MISSOURI CHANNEL RUNNING NORTH AND EAST OF IT WITH A KANSAS CHANNEL TO
THE SOUTH AND WEST.  SHE INSISTS THAT THE KANSAS CHANNEL ALWAYS
REMAINED THE MAIN CHANNEL OF THE STREAM AND ONLY A MINOR ONE REACHED
PROXIMITY TO THE RAILROAD TRACKS.  ACCORDINGLY, SHE SAYS THE ISLAND
FORMED AS MISSOURI LAND AND ALWAYS REMAINED MISSOURI TERRITORY. 
MISSOURI THUS OPPOSES HER VIEW OF ISLAND FORMATION, BOTH TO KANSAS'
VIEW OF THAT PROCESS AND TO HER CLAIM OF ACCRETION AND AVULSION. 

HOWEVER, MISSOURI ADDS A FURTHER ARGUMENT EVEN IF THE KANSAS THEORY
OF ACCRETION IS CONCEDED.  ACCORDING TO THIS, THE EFFECT OF THE
ACCRETION TO THE KANSAS BANK IS COUNTERACTED BY THE FACT THAT AT NO
TIME WAS THERE AN AVULSIVE CHANGE, WHETHER IN 1917 OR IN 1927.  ON THE
CONTRARY THE RIVER MOVED BACK GRADUALLY AS IT CAME.  IN THIS VIEW THE
ACCRETIVE PROCESS WORKING AGAINST MISSOURI ENDED IN 1923 OR 1924, WHEN
THE MISSOURI CHANNEL REACHED GREATEST PROXIMITY TO THE RAILROAD
TRACKS.  BEGINNING IN THOSE YEARS AND CONTINUING GRADUALLY UNTIL 1933
OR 1934, THE RIVER MOVED SLOWLY BACK TO A POINT BEYOND THE LOCATION OF
THE PRESENT CHANNEL.  THUS PURPORTING TO FOLLOW THE ACCRETION THEORY IN
BOTH DIRECTIONS, MISSOURI CLAIMS THE LAND IN QUESTION. 

IT MAY BE NOTED THAT CRUCIAL TO KANSAS' CASE, WHETHER ON HER THEORY
OF ACCRETION AND AVULSION OR ON THAT OF ISLAND FORMATION, IS THE NEED
FOR SHOWING THAT THE MAIN CHANNEL FOLLOWED THE COURSE OF THE MISSOURI
CHANNEL. 

                      II. 

ROUGHLY THE HISTORY OF THE BEND, FOR OUR PURPOSES, MAY BE DIVIDED
INTO THREE PERIODS, NAMELY, FROM 1900 TO 1917; FROM 1917 TO 1928; AND
FROM 1928 TO 1940, WHEN THIS SUIT WAS BEGUN.  THERE IS DOCUMENTARY
EVIDENCE AS WELL AS ORAL TESTIMONY FOR THE PERIOD PRIOR TO 1900.  THERE
IS LITTLE OR NO DOCUMENTARY EVIDENCE IN THE FORM OF MAPS, PHOTOGRAPHS,
DRAWINGS OR OTHER MATERIALS FROM 1900 TO 1923.  THERE IS A CONSIDERABLE
AMOUNT OF DOCUMENTARY MATERIAL FROM 1923 ON. 

PERHAPS THE MOST IMPORTANT DOCUMENTARY ITEM IS A MAP OF THE FORBES
BEND REGION COMPILED FROM THE FIELD IN 1923 BY THE UNITED STATES
ENGINEER OFFICE AT KANSAS CITY, DESIGNATED AS COMPLAINANT'S EXHIBIT 46
IN THIS RECORD.  ANOTHER MAP OF CONSIDERABLE ASSISTANCE, WITH
INFORMATION PENCILED ON IT BY TWO WITNESSES WHO TESTIFIED AT THE
HEARINGS, IS COMPLAINANT'S EXHIBIT 47.  THIS PURPORTS TO SHOW IN LESS
DETAIL THAN EXHIBIT 46 CONDITIONS IN THE BEND IN 1926.  THE WITNESSES'
PENCILED ADDITIONS, PLACING CHANNELS AND OTHER LANDMARKS, WITH THEIR
TESTIMONY, GIVE CONSIDERABLE INFORMATION ABOUT CONDITIONS IN THE BEND
FROM 1921 OR 1922 ON TO 1926 AND LATER.  ASSISTANCE ALSO IS DERIVED
FROM COMPLAINANT'S EXHIBIT 56.  THIS IS AN AERIAL SURVEY PHOTOGRAPH OF
THE FORBES BEND REGION MADE IN 1941, SHOWING CONDITIONS WHEN THIS SUIT
WAS BEGUN.  REFERENCE TO THESE EXHIBITS WILL BE MADE AS THE TESTIMONY
OF SOME OF THE WITNESSES IS REFERRED TO. 

IT IS CLEARLY ESTABLISHED THAT SOMETIME AROUND 1900, FIXED BY SOME
OLDER WITNESSES VARIOUSLY AS BEGINNING EARLIER AND BY OTHERS LATER, THE
RIVER BEGAN A NORTHERLY AND EASTWARD MOVEMENT, CUTTING AWAY THE
MISSOURI BANK AND FILLING IN ON THE KANSAS BANK.  FN10  NEIGHBORHOOD
TESTIMONY ATTRIBUTES THE BEGINNING OF THIS MOVEMENT TO SOME CHANGE IN
CONDITIONS UPSTREAM, TAKING PLACE APPARENTLY AROUND THE MOUTH OF WOLF
CREEK OR IN WOLF CREEK BEND ABOVE.  FN11  WHATEVER THIS CHANGE MAY HAVE
BEEN, IT APPARENTLY THREW THE CURRENT OF THE STREAM AGAINST THE SOLID
ROCK FORMATION ON WHAT IS KNOWN AS LOOKOUT MOUNTAIN.  THIS IS A POINT
ON THE KANSAS BLUFFS ABOUT A MILE OR A MILE AND A HALF BELOW THE MOUTH
OF WOLF CREEK.  THE CURRENT, STRIKING THIS ROCK WITH FORCE, WAS THROWN
OVER TO THE NORTH OR MISSOURI BANK. 

THE SOIL COMPOSITION OF THE NORTH BANK IS A COMMON FORMATION IN THE
MISSOURI RIVER VALLEY.  UNDERNEATH THE SURFACE SOIL IS SAND OR
QUICKSAND.  THIS IS COVERED BY A LAYER OF GUMBO SOIL.  TESTIMONY IN THE
RECORD DISCLOSES THERE IS NO GREAT EROSION WHEN THE WATER IS VERY HIGH
OR VERY LOW.  BUT WHEN IT IS AT AN INTERMEDIATE STAGE THE WATER COMES
IN CONTACT WITH THE UNDERLYING SAND, WASHES IT OUT, AND THE TOPSOIL
FALLS INTO THE RIVER IN GREAT CHUNKS, OFTEN TWENTY FEET LONG BY TEN
FEET WIDE.  AS THE CURRENT WAS FORCED FROM THE KANSAS ROCK TO THE
MISSOURI SAND, IT UNDERCUT MORE AND MORE OF THE MISSOURI SOIL. 
EVIDENCE IN THE RECORD ALSO SHOWS THAT BETWEEN 1900 AND 1920, OR A
LITTLE LATER, FROM 4,000 TO 5,000 ACRES OF MISSOURI SOIL WAS WASHED
INTO THE RIVER BY THIS PROCESS.  ON THIS STOOD HOUSES, BARNS, A SCHOOL
BUILDING KNOWN AS THE BAKER SCHOOLHOUSE, AND OTHER STRUCTURES, WHICH
EITHER WENT INTO THE RIVER AS THE SOIL WAS UNDERMINED OR WERE MOVED TO
PREVENT THEIR FALLING IN.  THE BAKER SCHOOLHOUSE, WHICH IN 1900 WAS A
MILE OR MORE NORTHEAST FROM THE RIVER BANK, WAS MOVED ABOUT 1915 TO
PREVENT ITS GOING INTO THE RIVER.  FN12  BY THAT TIME THE EROSION WAS
MOVING AT GREAT SPEED AND THIS CONTINUED UNTIL THE FARTHEST POINT WAS
REACHED, A HALF MILE OR LESS FROM THE BURLINGTON RAILROAD, ABOUT 1923
TO 1925.  FN13 

THE CLEAR WEIGHT OF THE EVIDENCE IS THAT THERE WAS ONLY A SINGLE
CHANNEL OF THE RIVER UNTIL ABOUT 1912 OR 1914.  WITNESSES FOR BOTH
KANSAS AND MISSOURI SUBSTANTIATE THIS.  FN14  THE EVIDENCE ALSO CLEARLY
ESTABLISHES THAT THERE WAS A DIVIDED FLOW FROM 1917 OR EARLIER TO
1927.  THIS TOO IS SUBSTANTIATED BY BOTH KANSAS AND MISSOURI
WITNESSES.  FN15  THE EVIDENCE, HOWEVER, IS CONFLICTING CONCERNING WHEN
THE DIVISION FIRST TOOK PLACE AND WHETHER, WHILE IT REMAINED, THE
KANSAS CHANNEL OR THE MISSOURI CHANNEL WAS THE MAIN ONE. 

WITNESSES FOR MISSOURI, AND SOME FOR KANSAS, TESTIFY THAT THE
DIVISION OCCURRED BEFORE 1917 AND THAT THE TWO CHANNELS REMAINED
SUBSTANTIALLY EQUAL OR THE KANSAS CHANNEL WAS THE LARGER IN THE VOLUME
OF WATER CARRIED BETWEEN THE TIME OF THE DIVISION AND SOMETIME BETWEEN
1922 AND 1927 OR 1928.  FN16  THE MISSOURI WITNESSES FAIRLY UNIFORMLY
AGREE THAT THE FLOW IN THE TWO CHANNELS WAS AT LEAST "FIFTY-FIFTY" AND
SOME OF THEM SAY THE KANSAS CHANNEL ALWAYS CARRIED THE HEAVIER VOLUME
OF WATER.  FN17  THEY ALSO GENERALLY AGREE THAT THE MISSOURI CHANNEL
BEGAN TO DECREASE AND THE KANSAS CHANNEL TO INCREASE IN VOLUME AT SOME
TIME BEFORE 1927.  SOME PLACE THE BEGINNING OF THIS PROCESS AS EARLY AS
1921 OR 1922.  FN18  THE EVIDENCE IS SUBSTANTIAL THAT THE DECREASE IN
THE MISSOURI FLOW AND THE INCREASE IN THE KANSAS FLOW BEGAN BEFORE
1927; AND IT IS ALMOST UNANIMOUS THAT, FROM 1928 ON, THE MISSOURI
CHANNEL CONTAINED NO CURRENT OR ONLY THE FLOW OF MILL CREEK DRAINAGE
DITCH, WHICH BY THAT TIME HAD BEEN DIVERTED INTO THE MISSOURI CHANNEL. 
WITNESSES FOR MISSOURI ATTRIBUTE A SUBSTANTIAL PORTION OF THE FILLING
UP OF THE MISSOURI CHANNEL TO DEPOSITS MADE BY THE MILL CREEK DITCH. 
FN19  THEY AGREE, AND THE EVIDENCE FOR KANSAS HARDLY CONTRADICTS THIS,
FN20  THAT BETWEEN 1928 AND 1934 THE MISSOURI CHANNEL ALMOST COMPLETELY
DRIED UP.  THE GREAT PREPONDERANCE OF THE EVIDENCE AS A WHOLE IS THAT
THIS OCCURRED GRADUALLY OVER A PERIOD OF YEARS, VARYING ACCORDING TO
DIFFERENT WITNESSES FROM TWO OR THREE TO EIGHT OR TEN YEARS. 

ON THE OTHER HAND, KANSAS WITNESSES ARE NOT IN ACCORD AMONG
THEMSELVES AS TO WHAT OCCURRED IN THE BEND BETWEEN 1912 AND 1928.  SOME
OF THEM SAY THERE WAS A DIVIDED FLOW.  FN21  OTHERS DENY THIS BUT
QUALIFY THEIR DENIALS BY ASSERTING THAT, ALTHOUGH THE MAIN CHANNEL OF
THE RIVER RAN OVER INTO MISSOURI CLOSE TO THE BURLINGTON TRACKS UNTIL
1927, THERE WERE CHUTES ON THE ISLAND AND PARTICULARLY THERE WAS ONE
CHUTE RUNNING FROM ABOUT THE MOUTH OF MILL CREEK DITCH AS IT WAS IN
1917(DIRECTLY ACROSS NORTHERLY FROM THE NORTHERN END OF THE BAR OR
ISLAND) DUE SOUTH TO THE KANSAS BLUFFS AT ABOUT STATION 510.  FN22
HOWEVER, THEY MAINTAIN GENERALLY THAT THIS WAS A SMALL CHUTE, OR
SMALLER THAN THE MISSOURI CHANNEL, AT ANY RATE UP TO 1922 OR 1923.  A
FEW SAY IT WAS SMALL UNTIL 1927 WHEN THE ALLEGED ICE JAM OCCURRED. 
FN23 

SOME WITNESSES FOR KANSAS MAINTAIN THAT THERE WERE BIG ICE JAMS IN
1917  FN24  AND IN 1927.  FN25  DIFFERENT WITNESSES TESTIFY TO THE TWO
ALLEGED JAMS.  THOSE WHO SAY ONE OCCURRED IN 1917 ASSERT THAT IT THREW
THE MAIN FLOW BACK FROM THE MISSOURI CHANNEL INTO THE KANSAS CHANNEL. 
LIKEWISE SOME OF THOSE WHO SAY THERE WAS A JAM IN 1927 ACCREDIT THE
SAME CONSEQUENCE TO THAT JAM.  THE TWO KANSAS THEORIES OF AVULSION
THEREFORE ARE ENTIRELY INCONSISTENT, THOUGH EACH IS SUPPORTED BY SOME
EVIDENCE.  IF THERE WAS AVULSION IN 1917, THERE HARDLY COULD HAVE BEEN
AVULSION, ON THIS RECORD, IN 1927.  ON THE OTHER HAND, SEVERAL KANSAS
WITNESSES, FAMILIAR WITH THE TERRITORY DURING ONE OR BOTH OF THE TWO
YEARS IN QUESTION, TESTIFY THEY SAW NO ICE JAMS IN THOSE YEARS.  FN26
OTHERS SAY THEY SAW ICE BUT NOT IN LARGE OR UNUSUALLY LARGE QUANTITIES
OR WITH UNUSUAL EFFECTS ON THE FLOW OF THE RIVER.  FN27  NEARLY ALL OF
THE MISSOURI WITNESSES DENY THAT THERE WERE ICE JAMS EITHER IN THOSE
YEARS OR AT OTHER TIMES, ALTHOUGH SOME REFER TO ICE IN THE RIVER AS NOT
UNCOMMON IN WINTER OR EARLY SPRING.  THE MISSOURI WITNESSES ARE FAIRLY
UNANIMOUS IN SAYING THAT AT NO TIME HAD ICE CONDITIONS OR OTHERS CAUSED
A SUDDEN CHANGE IN THE RIVER'S COURSE  FN28 AND IN THIS THEY ARE
SUPPORTED BY A NUMBER OF KANSAS WITNESSES.  FN29 

WHEN WE TURN TO COMPLAINANT'S EXHIBIT 46 WE FIND VERY SUBSTANTIAL
SUPPORT FOR MISSOURI'S VIEW THAT DURING THE CONTROVERTED PERIOD THE
FLOW OF THE RIVER WAS DIVIDED AND THAT THE KANSAS CHANNEL EQUALLED OR
EXCEEDED THE MISSOURI CHANNEL IN THE FLOW OR VOLUME OF WATER CARRIED. 
THIS MAP, COMPILED BY THE CORPS OF ENGINEERS OF THE UNITED STATES ARMY,
WHO HAD CHARGE OF THE RIVER'S DEVELOPMENT, SHOWS CONDITIONS IN 1923. 
TWO CHANNELS APPEAR, WITH A LARGE SAND BAR OR ISLAND BETWEEN THEM.  THE
MAP PLACES THE MISSOURI CHANNEL WITHIN LESS THAN A HALF MILE OF THE
BURLINGTON TRACKS.  IT SHOWS A WIDTH OF ABOUT 1,250 FEET AT THE
NARROWEST POINT.  SOUNDINGS, READ FROM THE SOUTH END OF THE ISLAND
AROUND THE CURVE TO ITS NORTH END, DISCLOSE THAT THE DEEPEST WATER RAN
FROM POINT TO POINT AS FOLLOWS:  15 FEET, 16 FEET, 25 FEET, 13 FEET, 14
FEET.  ON THE WESTERLY SIDE OF THE ISLAND THE KANSAS CHANNEL WAS A
LITTLE WIDER AT ITS NARROWEST POINT.  ITS SOUNDINGS FROM SOUTH TO NORTH
AT APPROPRIATE INTERVALS WERE 31 FEET, 12 FEET, 12 FEET AND 13 FEET. 
THE MISSOURI CHANNEL MEANDERED FROM THE SOUTH TO THE EAST AND NORTH AND
THEN BACK AROUND THE NORTH END OF THE ISLAND OR BAR IN A DUE WESTERLY
DIRECTION.  ON THE OTHER HAND, THE KANSAS CHANNEL WAS MUCH SHORTER,
RUNNING STRAIGHT NORTH FROM THE SOUTH END OF THE ISLAND ALONG ITS
WESTERN SHORE TO ITS NORTHERN END.  THE MAP SHOWS THAT THE HIGHER
PORTION OF THE ISLAND WAS COVERED WITH WILLOWS AND A SMALL PART AT THE
LOWER END WAS UNDER CULTIVATION.  FURTHERMORE, IT IS SIGNIFICANT THAT
AT THE NORTH END OF THE ISLAND, JUST OPPOSITE THE MOUTH OF MILL CREEK
DITCH, THE WATER IN THE MISSOURI CHANNEL WAS COMPARATIVELY SHALLOW. 

EXHIBIT 46 FURNISHES THE MOST RELIABLE EVIDENCE IN THE RECORD OF
CONDITIONS IN FORBES BEND AT A GIVEN TIME.  IF ONLY THIS EXHIBIT AND
THE FACTS IT DISCLOSES WERE CONSIDERED, CLEARLY IT COULD NOT BE RULED
THAT THE MAIN NAVIGABLE CHANNEL OF THE RIVER WAS THE MISSOURI CHANNEL. 
FOR PURPOSES OF NAVIGATION, THE KANSAS CHANNEL WAS MUCH THE SHORTER AND
MORE DIRECT AND, FROM THE SOUNDINGS AS WELL AS THE SHORTER FLOW, IT
APPARENTLY CARRIED AT LEAST AN EQUAL VOLUME OF WATER. 

EXHIBIT 47, WHICH IS DESCRIBED AS A REVISION FROM AIRPLANE
PHOTOGRAPHS, SHOWS IN GENERAL A SOMEWHAT SIMILAR THOUGH LESS DETAILED
PICTURE FOR 1926.  HOWEVER, TWO WITNESSES FOR KANSAS, KENNETH ROBINSON
AND JOSEPH H. GRAY, WHO HUNTED IN THE REGION FROM 1920 TO 1927 OR 1928,
TESTIFIED CONCERNING THIS EXHIBIT AND MARKED ON IT IN PENCILED LINES
THEIR RECOLLECTIONS OF THE CHANNELS' RESPECTIVE COURSES IN 1922.  THEIR
TESTIMONY GIVES PERHAPS THE STRONGEST SUPPORT TO KANSAS' CASE THAT THE
MAIN CHANNEL DURING A PORTION OF THE DISPUTED PERIOD WAS ON THE
MISSOURI SIDE.  BUT, APART FROM ITS INCONSISTENCY AS TO THE LOCATION
AND DIRECTION OF THE KANSAS CHUTE,  FN30  IT DOES NOT ACCORD WITH THE
MORE RELIABLE EVIDENCE GIVEN CONCERNING CONDITIONS IN THE BEND AT THE
SAME TIME BY COMPLAINANT'S EXHIBIT 46 AND IT IS CONTRADICTED BY
NUMEROUS WITNESSES FOR MISSOURI AS WELL AS BY SOME FOR KANSAS IN
ALLOCATING A LARGER FLOW TO THE MISSOURI CHANNEL.  IT CANNOT THEREFORE
BE ACCEPTED AS CONTROLLING. 

                     III. 

THE EVIDENCE NEED NOT BE STATED IN FURTHER DETAIL.  IN OUR OPINION IT
FULLY SUPPORTS THE MASTER'S ULTIMATE FINDINGS AND CONCLUSIONS.  IT WAS
HIS VIEW, FIRST, THAT THERE WAS NO AVULSIVE CHANGE, WHETHER IN 1917,
1927, OR AT ANY TIME.  HE FOUND THERE WAS SOME EVIDENCE OF AN ICE JAM
IN 1917 AND MORE TO SUBSTANTIATE SUCH A CLAIM FOR 1927.  BUT HE ALSO
FOUND, AND THE EVIDENCE, THOUGH NOT UNDISPUTED, FULLY SUBSTANTIATES HIS
CONCLUSION, THAT NEITHER OF THESE JAMS WAS SUFFICIENT TO CAUSE A SUDDEN
CHANGE IN THE RIVER'S COURSE. 

THERE IS VERY CONSIDERABLE DOUBT, ON THE RECORD AS A WHOLE, WHETHER
THE ALLEGED JAM IN 1917 OCCURRED AT ALL.  IN ANY EVENT, THE
PREPONDERANT EVIDENCE IS THAT IT AMOUNTED TO LITTLE, IF ANYTHING, MORE
THAN THE NORMAL PILING OF ICE ON THE HEADS OF BARS AND ISLANDS DURING
THE SPRING BREAKUP.  FN31  THERE IS EVIDENCE THAT THIS OCCURRED EACH
YEAR.  THE PROOF THEREFORE TO SUSTAIN AVULSION IN 1917 IS NOT
SUFFICIENT AND THIS PHASE OF THE CASE MAY BE PUT ASIDE. 

WE AGREE WITH THE MASTER THAT THE EVIDENCE TO SHOW A MORE UNUSUAL
PILING UP OF ICE AT THE HEAD OF THE ISLAND IN 1927 IS SOMEWHAT
STRONGER.  FN32  BUT WE ALSO AGREE WITH HIM THAT THE EVIDENCE AS A
WHOLE IS CLEARLY PREPONDERATING THAT THIS DID NOT CAUSE AN AVULSIVE
CHANGE.  AS HAS BEEN STATED, THERE IS SOME EVIDENCE THAT THE ALLEGED
1927 JAM CAUSED THE MAIN CHANNEL OF THE RIVER TO SHIFT THEN AND
SUDDENLY FROM THE MISSOURI CHANNEL TO THE KANSAS CHANNEL AS THE LATTER
FLOWED FROM 1927 OR 1928 UNTIL THE GOVERNMENT'S REVETMENT WORK ON THE
RIVER FORCED THE CHANNEL TO ITS PRESENT LOCATION AFTER 1935.  BUT THIS
IS NOT ENOUGH TO SUSTAIN KANSAS' CASE. 

BOTH BY VIRTUE OF HER POSITION AS COMPLAINANT AND ON THE FACTS,
KANSAS HAS THE BURDEN OF PROOF IN THIS CASE.  CF. OKLAHOMA V. TEXAS,
260 U.S. 606.  THE DISPUTED LOCATION WAS IN MISSOURI IN 1900.  IT LIES
ON THE MISSOURI SIDE NOW AND HAS DONE SO, BY PRACTICALLY ALL THE
EVIDENCE, SINCE AT LEAST 1927 OR 1928.  THESE FACTS PUT UPON KANSAS THE
BURDEN OF SHOWING THAT IN THE MEANTIME THE LAND LAY ON THE KANSAS SIDE
OF THE MAIN CHANNEL BY VIRTUE OF NATURAL CHANGES WHICH WERE EFFECTIVE
TO CHANGE THE JURISDICTION.  KANSAS HAS SHOWN BEYOND DOUBT THAT ONE
BRANCH OF THE RIVER ERODED TO A POINT OR POINTS NORTH AND EAST OF THIS
LAND, PROBABLY AS EARLY AS 1920, POSSIBLY EARLIER.  BUT BEYOND THIS
FACT, WHETHER ON HER THEORY OF ACCRETION AND AVULSION OR ON THAT OF
ISLAND FORMATION, THE WEIGHT OF THE EVIDENCE IS AGAINST HER VIEW OF
WHAT OCCURRED. 

KANSAS' MAIN DIFFICULTY PERHAPS IS THAT BY ATTEMPTING TO PROVE ONE
THEORY OF WHAT HAPPENED IN FORBES BEND SHE DIVIDES THE WEIGHT OF HER
EVIDENCE AND THUS GOES FAR TO DISPROVE HER OTHER THEORY.  TO SHOW
ACCRETION AND AVULSION SHE WAS REQUIRED TO PROVE THAT THE RIVER'S MAIN
CHANNEL MOVED GRADUALLY FROM THE KANSAS BLUFFS IN 1900 TO THE FARTHEST
EROSION POINT IN MISSOURI IN 1927, AND THEN SUDDENLY SHIFTED BACK TO A
NEW CHANNEL CUT THEN THROUGH THE MIDDLE OF THE ACCRETED SOIL, LEAVING
THE OLD ONE FROM THAT TIME ON A MINOR OR DRY ONE.  TO SHOW SOVEREIGNTY
BY ISLAND FORMATION IT WAS NECESSARY TO PROVE THAT THE ISLAND FORMED ON
THE KANSAS SIDE OF THE MAIN CHANNEL, IN WHICH EVENT A SUBSEQUENT SHIFT
IN THE MAIN FLOW TO THE OTHER SIDE OF THE ISLAND WOULD NOT AFFECT HER
JURISDICTION,  FN33  ALTHOUGH MISSOURI'S ALTERNATIVE CONTENTION SEEMS
TO BE TO THE CONTRARY.  FN34 BY PROVING THE FORMATION OF THE ISLAND,
KANSAS IN EFFECT DISPROVES THAT THE DISPUTED AREA BECAME ACCRETED SOIL
ATTACHED FIRMLY TO THE KANSAS BANK.  HER OWN EVIDENCE IN THIS RESPECT,
ADDED TO THAT GIVEN BY MISSOURI, FAR OUTWEIGHS THE EVIDENCE SHE
PRESENTED TO SHOW ACCRETION BEYOND WHERE THE PRESENT CHANNEL LIES AND
CREATES AN OVERWHELMING PREPONDERANCE THAT THE FLOW WAS DIVIDED FROM
1912 OR AT ANY RATE 1917 TO 1927 OR 1928; THAT THE ISLAND FORMED IN
THIS PERIOD; AND THUS THAT THE SOIL IN QUESTION WAS NOT AT ANY TIME
ATTACHED FIRMLY TO THE KANSAS BANK BY ACCRETION.  IF IT WAS FORMED AS
ISLAND SOIL, IT WAS NOT ACCRETED SOIL. 

KANSAS' EVIDENCE CONCERNING THE DIVISION OF FLOW AND FORMATION OF THE
ISLAND, TOGETHER WITH THAT CONCERNING THE DRYING UP OF THE MISSOURI
CHANNEL, ALSO PROVES NOT THAT THE RIVER SUDDENLY CUT A NEW CHANNEL
THROUGH ACCRETED SOIL IN 1927, BUT THAT IT MERELY SHIFTED THE VOLUME OF
FLOW FROM ONE CHANNEL TO ANOTHER PREEXISTING ONE.  IN OTHER WORDS IT
GOES TO DISPROVE BOTH ACCRETION AND AVULSION.  MISSOURI AND KANSAS
WITNESSES ARE AGREED THAT THE MAIN FLOW WAS IN THE KANSAS CHANNEL FROM
1927 ON AND THERE IS SUBSTANTIAL AGREEMENT THAT BY 1933 OR 1935 THE
MISSOURI CHANNEL HAD DRIED UP, EXCEPT FOR THE FLOW OF MILL CREEK DITCH,
AND LARGELY HAD FILLED UP BY DEPOSITS FROM THAT STREAM AND OTHER
FORCES.  MISSOURI WITNESSES SAY THIS DRYING UP BEGAN BEFORE 1927, SOME
AS EARLY AS 1922 OR 1923, AND THEREFORE CONTINUED FOR TEN OR TWELVE
YEARS.  KANSAS WITNESSES GENERALLY SAY IT BEGAN IN 1927 AND CONTINUED
FOR FROM THREE TO SEVEN OR EIGHT YEARS.  ONLY A FEW OF THEM SAY THE ICE
JAM THAT YEAR CUT A NEW CHANNEL.  MORE TESTIFY THAT THE MAIN FLOW THEN
SHIFTED FROM ONE CHANNEL TO THE OTHER, AND SOME JOIN THE WITNESSES FOR
MISSOURI IN SAYING THAT THIS SHIFT BEGAN EARLIER.  EXCEPT FOR THE FEW
WITNESSES WHO TESTIFY TO THE SUDDEN CUTTING OF A NEW CHANNEL, THE GREAT
WEIGHT OF THE TESTIMONY IS THAT WHATEVER CHANGE OCCURRED IN REDUCTION
OF THE FLOW IN THE MISSOURI CHANNEL REQUIRED SEVERAL YEARS TO
COMPLETE.  IT WAS A GRADUAL PROCESS, AND THEREFORE NOT THE SUDDEN SHIFT
NECESSARY TO SHOW AVULSION.  WE NEED NOT DECIDE WHAT THE EFFECT WOULD
BE IF THE EVIDENCE HAD SHOWN THIS WAS A GRADUAL CUTTING OF A NEW
CHANNEL.  IT WAS AT MOST A GRADUAL SHIFTING FROM ONE TO ANOTHER. 
KANSAS CLEARLY HAS FAILED TO PROVE THAT THERE WAS A SINGLE CHANNEL OF
THE RIVER WHICH GRADUALLY MOVED OVER TO THE FARTHEST EROSION POINT,
MEANWHILE ACCRETING THIS LAND TO HER SOIL, THEN SUDDENLY MOVED BACK,
EITHER IN 1917 OR IN 1927, TO A NEW CHANNEL CUT THROUGH THE ACCRETED
SOIL.  ONLY BY ACCEPTING THE EVIDENCE GIVEN BY THE FEW WITNESSES WHO
SUPPORTED THIS THEORY, WHICH WAS CONTRADICTED BOTH BY THE WEIGHT OF HER
OWN EVIDENCE CONCERNING ISLAND FORMATION AND BY SUBSTANTIALLY ALL THAT
WAS OFFERED FOR MISSOURI, COULD A FINDING IN KANSAS' FAVOR BE MADE
UNDER THE THEORY OF ACCRETION AND AVULSION. 

KANSAS' STRONGER CASE UPON THE PROOF IS ON THE THEORY OF ISLAND
FORMATION.  ON THIS, AS UNDER THAT OF ACCRETION AND AVULSION, IT WAS
NECESSARY FOR HER TO SHOW THAT THE MISSOURI CHANNEL WAS THE RIVER'S
MAIN CHANNEL AND THUS THE ISLAND, WHICH IS NOW PART OF THE DISPUTED
LAND, WAS FORMED ON HER SIDE OF THE RIVER'S THREAD.  ON THIS CRUCIAL
ISSUE KANSAS' CASE IS STRONGER PERHAPS THAN IN ANY OTHER RESPECT.  SHE
PRESENTED SUBSTANTIAL EVIDENCE TO SHOW THAT WHILE THE RIVER WAS DIVIDED
OR DURING SOME PART OF THAT PERIOD, MORE ESPECIALLY FROM 1921 OR 1922
TO 1927, THE MISSOURI CHANNEL WAS THE MAIN ONE, BOTH IN VOLUME OF WATER
CARRIED AND, LESS CLEARLY, IN AVAILABILITY FOR NAVIGATION.  THERE IS,
HOWEVER, AT LEAST AN EQUAL WEIGHT OF EVIDENCE, GIVEN BOTH BY MISSOURI
WITNESSES AND BY SOME FOR KANSAS, THAT THE KANSAS CHANNEL REMAINED THE
MAIN NAVIGABLE CHANNEL THROUGHOUT THE PERIOD OF DIVISION. 

THE EVIDENCE ON THIS CONTROLLING ISSUE UNFORTUNATELY IS NOT AS FREE
FROM CONFLICT OR DOUBT AS WE MIGHT WISH.  BUT IT CANNOT BE SAID, WHEN
ACCOUNT IS TAKEN OF ALL THE EVIDENCE, BOTH ORAL AND DOCUMENTARY, THAT A
PREPONDERANCE SUSTAINS KANSAS' VIEW THAT THE MAIN CHANNEL EVER CHANGED
TO THE MISSOURI SIDE.  KANSAS' BURDEN REQUIRED PREPONDERANT PROOF.  SHE
HAS NOT MADE IT. 

AS THE CASE HAS BEEN MADE, BOTH THE MASTER AND THIS COURT HAVE HAD TO
RELY UPON THE INADEQUATE AND INCONCLUSIVE DOCUMENTARY EVIDENCE AND THE
CONFLICTING AND OFTEN VAGUE RECOLLECTIONS OF NEIGHBORHOOD WITNESSES. 
THE SUM DOES NOT ADD UP TO THE WEIGHT OF PROOF KANSAS WAS REQUIRED TO
ESTABLISH IN ORDER TO PREVAIL.  THE MASTER SAW AND HEARD THE
WITNESSES.  HIS CONCLUSIONS IN ALL RESPECTS WERE IN FAVOR OF MISSOURI. 
WE FIND NO BASIS IN THE RECORD FOR ANY CONCLUSION THAT HE PERFORMED HIS
TASK WITH OTHER THAN FAIR, DISINTERESTED, PAINSTAKING EFFORT AND
ATTITUDE.  HIS JUDGMENT ACCORDS WITH THE CONCLUSIONS WE MAKE FROM OUR
OWN INDEPENDENT EXAMINATION OF THE RECORD.  IT IS NOT NECESSARY FOR US
TO DECIDE MORE THAN THAT KANSAS HAS FAILED TO SHOW THAT THE MAIN
CHANNEL OF THE RIVER SHIFTED AT ANY TIME IN QUESTION FROM A COURSE SUCH
AS THE RIVER NOW FOLLOWS, OR ONE SLIGHTLY CLOSER TO THE KANSAS BLUFFS,
TO ONE FOLLOWING THE COURSE OF THE MISSOURI CHANNEL WHEN THE FLOW WAS
DIVIDED. 

IT FOLLOWS THE LAND IN DISPUTE MUST BE AWARDED TO MISSOURI AND THE
BOUNDARY WILL BE FIXED AS THE MASTER HAS RECOMMENDED IN HIS REPORT.  A
DECREE WILL BE ENTERED ACCORDINGLY.  (SEE POST, P. 654.) 

FN1  CF. MISSOURI V. KANSAS, 213 U.S. 78; MISSOURI V. NEBRASKA, 196
U.S. 23. 

FN2  ACT OF ADMISSION OF KANSAS, 12 STAT. 126; KANSAS CONSTITUTION OF
1859, CHARTERS AND CONSTITUTIONS OF THE UNITED STATES, PART I, 629,
630. 

FN3  THE COMPLAINT ALLEGED DISPUTES OVER THE LINE AT POINTS ALONG THE
RIVER BETWEEN WAR DEPARTMENT SURVEY STATIONS 399 AND 405, AT OTHER
POINTS IN ATCHISON COUNTY, KANSAS, AND AT POINTS ALONG THE RIVER
BETWEEN WAR DEPARTMENT SURVEY STATIONS 510 AND 515(FORBES BEND). 

FN4  ATTEMPTS AT SETTLEMENT BY NEGOTIATION HAD BEEN AUTHORIZED BY
KANSAS BEFORE THIS PROCEEDING WAS BEGUN (LAWS OF KANSAS, 1939, C.
355).  APPARENTLY THEY WERE UNAVAILING, AND THIS SUIT WAS INSTITUTED. 
AFTER IT WAS BEGUN, HOWEVER, THE PARTIES AGREED TO A SETTLEMENT WITH
RESPECT TO ALL AREAS BUT THIS ONE AND INCORPORATED IT IN THIS RECORD. 
IT WILL BE MADE PART OF THE DECREE. 

FN5  JEFFERIS V. EAST OMAHA LAND CO., 134 U.S. 178; ST. CLAIR COUNTY
V. LOVINGSTON, 23 WALL.  46; NEBRASKA V. IOWA, 143 U.S. 359. 

FN6  NEBRASKA V. IOWA, 143 U.S. 359; MISSOURI V. NEBRASKA, 196 U.S.
23; OKLAHOMA V. TEXAS, 260 U.S. 606. 

FN7  SINCE KANSAS CLAIMS AVULSIVE CHANGE BOTH IN 1917 AND IN 1927,
AND THAT THE ACCRETION BEGAN ABOUT 1900 OR SHORTLY THEREAFTER, HER
CLAIM NECESSARILY IMPLIES THAT THE PERIOD OF ACCRETION EXTENDED EITHER
FROM 1900 TO 1917 OR FROM 1900 TO 1927. 

FN8  AT THAT TIME, ACCORDING TO THIS CLAIM, THE MAIN CHANNEL OF THE
RIVER FLOWED THROUGH THE SO-CALLED MISSOURI CHANNEL TO THE NORTH AND
EAST, BUT WAS SUDDENLY CHANGED BY THE ICE JAM BACK FROM THAT CHANNEL
INTO A CHUTE ON THE KANSAS SIDE.  THIS CHUTE PREVIOUSLY HAD CUT ACROSS
THE ALLEGEDLY ACCRETED LAND A LITTLE TO THE WEST OF WHERE THE PRESENT
CHANNEL NOW LIES.  THE COMPLAINT ALLEGES THAT THE ICE JAM OCCURRED "ON
OR ABOUT FEBRUARY 1918."  THE SCANTY TESTIMONY IN THE RECORD IF
COMPLETELY ACCEPTED WOULD ESTABLISH THE ICE JAM IN 1917 RATHER THAN IN
1918; CF. NOTE 24 INFRA. 

FN9  THE COMPLAINT ALLEGES THAT THE ICE JAM OCCURRED "DURING THE YEAR
1927."  THE WITNESSES WHO TESTIFY TO THE JAM AT THIS TIME DATE IT
VARIOUSLY IN 1927, 1928 AND 1929; CF. NOTE 25 INFRA. 

FN10  C. MCWILLIAMS (1892); P. DYER (1898); C. HUDGINS (1900); J. H.
SIMPSON (1904); J. E. SIMPSON (1905). 

FN11  CF. TESTIMONY OF L. F. STALCUP. 

FN12  WITNESSES VARY AS TO THE EXACT TIME FROM 1910-11 TO 1916(J. H.
PERET:  1910-12; MRS. S. JENKINS:  1910-12; R. E. SIMPSON:  1913; C.
MCWILLIAMS:  1912-13; C. HARPER:  1915; C. HUDGINS:  1915; B. HUDGINS:
1916; E. MCCOY:  1915).  BUT MOST OF THEM PUT THIS EVENT IN 1912 OR
LATER, AND THE MOST RELIABLE TESTIMONY, BY THOSE WHO MOVED THE BUILDING
(C. HUDGINS AND B. HUDGINS), PLACES IT IN 1915 OR 1916. 

FN13  C. MCWILLIAMS (1924-25); E. MCCOY (1922); A. H. MURRAY (1922
23); RALPH DYER (1923-24); W. METCALF (1917); CF. E. A. COLE (1923,
1928). 

FN14  VARYING DATES ARE GIVEN FOR THE TIME AT WHICH A DIVIDED FLOW
WAS FIRST NOTED. 

KANSAS WITNESSES:  I. MUSE:  1900; L. F. STALCUP:  1910-1912; J. E.
SIMPSON:  1912-13, 1917; O. MCKAY:  1917; R. E. SIMPSON:  1918; C.
BASKINS:  1917; C. W. RYAN:  1917 OR 1919; J. MCKAY: 1920. 

MISSOURI WITNESSES:  D. BARBOUR:  1903; B. HUDGINS:  1914; C.
HARRISON:  1914; RALPH DYER: 1913-14; C. HARPER:  1915; A. H. MURRAY:
1915; H. H. HALL:  1916; W. METCALF:  1916; J. FITZGERALD:  1917;
RAYMOND DYER:  1917-1918. 

FN15  SEE NOTE 14 SUPRA.  A FEW KANSAS WITNESSES MAINTAIN THERE WAS
ONLY ONE CHANNEL THROUGH THIS PERIOD. 

FN16  SEE NOTE 14 SUPRA.  KANSAS' WITNESSES TESTIFIED VARIOUSLY THAT
THERE ALWAYS HAD BEEN A CHANNEL ON THE KANSAS SIDE, THAT IT WAS SWIFTER
THAN THE MISSOURI CHANNEL (J. H. SIMPSON), THAT THE KANSAS CHANNEL WAS
THE "MAIN RIVER" (MRS. J. COUFAL), THAT THE KANSAS CHANNEL WAS MUCH THE
LARGER IN 1918(R. E. SIMPSON), THAT MOST OF THE WATER WAS ON THE KANSAS
SIDE IN 1920(P. BOTTIGER); CF. C. B. CATON, THAT THE RIVER WAS JUST
ABOUT EVENTLY DIVIDED IN 1917(C. BASKINS).  MISSOURI WITNESSES SAID
THAT THERE WAS ALWAYS A SUBSTANTIAL FLOW IN THE KANSAS CHANNEL AND THAT
IT WAS ABOUT AS LARGE AS OR LARGER THAN THE MISSOURI CHANNEL (E.G.,
RALPH DYER, B. HUDGINS, C. DINWIDDIE, J. FITZGERALD, C. HARPER, RAYMOND
DYER).  THEY PLACED BOATS IN THE KANSAS RATHER THAN THE MISSOURI
CHANNEL (E. MCCOY); IN 1918(W. L. MOORE); 1916 TO 1929(H. H. HALL); AND
IN 1927(C. HUDGINS). 

FN17  SEE NOTE 16 SUPRA. 

FN18  W. METCALF:  1917; W. L. MOORE:  1918; C. DINWIDDIE:  1920-22;
C. HARRISON:  1921; J. FITZGERALD:  1923-1925; CF. P. BOTTIGER:  1920. 

FN19  J. FITZGERALD, E. WALES, J. H. PERET (KANSAS WITNESS); CF. E.
MCCOY, C. HARPER. 

FN20  E.G., J. H. GRAY:  1928 ET SEQ.; A. F. HAYS:  1926 ET SEQ.; J.
B. GRAY:  1927-30; G. ATKINSON:  1929-AFTER 1934; J. H. PERET:  1929
33; C. COUFAL:  1929-33; C. W. RYAN:  1928-31; SOME KANSAS WITNESSES
CLAIM THE DRYING UP OF THE MISSOURI CHANNEL WAS A SUDDEN CONCOMITANT OF
AN ICE JAM IN 1929 BUT ADD THAT THE MISSOURI CHANNEL CONTAINED WATER
UNTIL 1933 OR 1934(E.G., C. COUFAL, E. A. COLE), OR 1935 OR 1936 WHEN
IT DRIED UP AS A RESULT OF GOVERNMENT DIKING AND REVETMENT WORK
UPSTREAM (E.G., J. COUFAL). 

FN21  SEE NOTE 14 SUPRA. 

FN22  E.G., A. F. HAYS, C. COUFAL, K. BROWNLEE, K. ROBINSON. 

FN23  E. A. COLE, J. COUFAL.  COLE IS A KANSAS CLAIMANT TO OWNERSHIP
OF PART OF THE DISPUTED LAND.  COUFAL ONCE WORKED FOR HIM. 

FN24  C. BASKINS:  1917; J. E. SIMPSON:  1917; P. DYER:  1917; C.
DYER. 

FN25  E. A. COLE:  1929; C. COUFAL:  1929; J. COUFAL:  1929; MRS. J.
COUFAL:  1929; E. L. ROCKWELL:  1927; I. OVERSTREET:  1927; H. W.
LINVILLE:  1927; P. DYER:  1927 OR 1928.  MRS. COUFAL, HOWEVER,
TESTIFIED THE "MAIN RIVER" WAS ON THE KANSAS SIDE OF THE ISLAND AT THAT
TIME.  IN THIS RESPECT HER TESTIMONY FLATLY CONTRADICTS THAT OF HER
HUSBAND AND COLE. 

FN26  D. BASKINS, J. KOTSCH, R. E. SIMPSON, J. H. SIMPSON, W.
PRUSMAN, G. ATKINSON. 

FN27  I. MUSE, L. F. STALCUP; CF. A. P. STAVER. 

FN28  C. HUDGINS, V. HARRISON, C. DINWIDDIE, R. L. GREENE, W.
METCALF, E. WALES; CF. E. MCCOY, H. H. HALL, D. BARBOUR. 

FN29  CF. NOTE 20 SUPRA; J. KOTSCH, W. PRUSMAN, C. MCWILLIAMS. 

FN30  THEY AGREED THAT THE MISSOURI CHANNEL FLOWED AROUND THE ISLAND
NOT FAR FROM THE BURLINGTON TRACKS, TURNING SOUTH AT THAT POINT AND
FLOWING AGAINST THE KANSAS BLUFFS AT STATION 510.  THEY ALSO AGREED
THAT THE KANSAS CHANNEL WAS A CHUTE.  BUT THEY DIFFERED CONCERNING ITS
DIRECTION AND LOCATION.  ROBINSON PLACED IT AS RUNNING ALMOST DUE SOUTH
ACROSS THE CENTER OF THE ISLAND IN A STRAIGHT COURSE.  GRAY PLACED THE
KANSAS CHUTE MORE TO THE WEST AND WITH A CURVING COURSE.  BOTH
TESTIFIED THAT THE MISSOURI CHANNEL WAS THE MAIN CHANNEL AT THAT TIME. 
THE INCONSISTENCY BETWEEN EXHIBIT 46 AND THE TESTIMONY AND DRAWINGS OF
ROBINSON AND GRAY MAY BE ACCOUNTED FOR IN PART, THOUGH NOT ALTOGETHER,
BY THE FACT THEY WERE IN THE BEND FOR HUNTING AND FISHING PURPOSES,
CHIEFLY IN THE FALL, WHEREAS EXHIBIT 46 WAS MADE FROM SURVEYS IN JUNE
AND JULY.  THE DIFFERENCE IN TIME, HOWEVER, IS HARDLY ENOUGH TO ACCOUNT
FOR THE DIFFERENCE EITHER IN WIDTH OR DEPTH OF THE KANSAS CHANNEL AS
SHOWN BY THE EXHIBIT AND BY THEIR TESTIMONY. 

FN31  CF. NOTES 27-29 SUPRA. 

FN32  CF. NOTE 25 SUPRA. 

FN33  MISSOURI V. KENTUCKY, 11 WALL.  395; DAVIS V. ANDERSON-TULLY
CO., 252 F. 681(C.C.A.); COMMISSIONERS V. UNITED STATES, 270 F.
110(C.C.A.). 

FN34  MISSOURI APPARENTLY URGES THAT EVEN IF THE LAND FORMED AS AN
ISLAND ON THE KANSAS SIDE, THE PROCESS BY WHICH THE MAIN CHANNEL
SHIFTED FROM THE EASTERN TO THE WESTERN CHANNEL AND THE FORMER
GRADUALLY FILLED WITH ALLUVIAL DEPOSITS THUS CONNECTING THE ISLAND TO
THE MISSOURI SHORE, ENTITLES IT TO SOVEREIGNTY OVER THE DISPUTED
LANDS. 
..END :












U.S. V. MARSHALL TRANSPORT CO., 322 U.S. 31 


NO. 589.  ARGUED MARCH 28, 1944.  - DECIDED MAY 1, 1944.  - 52 F.SUPP. 
1010, REVERSED. 


ON AN APPLICATION TO THE INTERSTATE COMMERCE COMMISSION OF TWO
CARRIERS BY MOTOR VEHICLE FOR PERMISSION FOR ONE TO PURCHASE THE
PROPERTY AND OPERATING RIGHTS OF THE OTHER, THE COMMISSION FOUND THAT
THE PROPOSED VENDEE WAS CONTROLLED THROUGH STOCK OWNERSHIP BY A NON
CARRIER.  HELD THAT BY THE PROPOSED TRANSACTION THE NON-CARRIER WOULD
"ACQUIRE CONTROL OF ANOTHER CARRIER THROUGH OWNERSHIP OF ITS STOCK OR
OTHERWISE," WITHIN THE PURVIEW OF SEC. 5(2)(A) OF PART I OF THE
INTERSTATE COMMERCE ACT, AS AMENDED BY THE TRANSPORTATION ACT OF 1940;
THAT SEC. 5(2)(B) REQUIRED THAT APPLICATION TO THE COMMISSION FOR
APPROVAL BE MADE BY THE NON-CARRIER; AND THAT IN THE ABSENCE OF AN
APPLICATION FROM THE NON-CARRIER THE COMMISSION WAS WITHOUT AUTHORITY
TO APPROVE THE TRANSACTION.  PP. 37, 41. 

UNITED STATES ET AL. V. MARSHALL TRANSPORT CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MARYLAND. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES WHICH SET
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, 39 M.C.C. 271. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

ON AN APPLICATION TO THE INTERSTATE COMMERCE COMMISSION OF TWO
CARRIERS BY MOTOR VEHICLE, APPELLEE REFINERS TRANSPORT TERMINAL
CORPORATION AND APPELLEE MARSHALL TRANSPORT COMPANY, FOR PERMISSION FOR
REFINERS TO PURCHASE THE PROPERTY AND OPERATING RIGHTS OF MARSHALL, THE
COMMISSION FOUND THAT REFINERS, THE VENDEE-CARRIER, WAS CONTROLLED
THROUGH STOCK OWNERSHIP BY A NON-CARRIER, UNION TANK CAR COMPANY, AND
THAT THE PROPOSED PURCHASE WOULD RESULT IN THE ACQUISITION BY UNION OF
CONTROL OF THE PROPERTY AND BUSINESS OF MARSHALL.  CONSTRUING SECS.
5(2)(A) AND (B) OF PART I OF THE INTERSTATE COMMERCE ACT, 24 STAT. 379,
AS AMENDED BY THE TRANSPORTATION ACT OF 1940, 54 STAT. 905, 49 U.S.C.
SECS. 5(2)(A) AND (B), AS REQUIRING THE APPLICATION TO BE MADE BY
UNION, THE NON-CARRIER CORPORATION CONTROLLING REFINERS, THE COMMISSION
DENIED THE APPLICATION OF THE CARRIERS FOR LACK OF POWER IN THE
COMMISSION TO APPROVE THE PURCHASE. 

THE QUESTIONS FOR OUR DECISION ARE (1) WHETHER THE ACQUISITION OF THE
PROPERTY AND FRANCHISES OF ONE CARRIER BY ANOTHER, WHICH IS CONTROLLED
BY A NON-CARRIER, INVOLVES THE ACQUISITION OF CONTROL OF THE FIRST OR
VENDOR-CARRIER BY THE NON-CARRIER FOR WHICH THE COMMISSION'S APPROVAL
IS REQUIRED BY SEC. 5(2)(A) OF THE INTERSTATE COMMERCE ACT; AND IF SO
(2) WHETHER THE COMMISSION RIGHTLY HELD THAT UNDER SEC. 5(2)(B) OF THE
ACT IT COULD NOT CONSIDER THE PROPRIETY OF THE TRANSACTION IN THE
ABSENCE OF AN APPLICATION BY THE NON-CARRIER FOR THE COMMISSION'S
AUTHORITY TO ACQUIRE CONTROL. 

APPELLEE REFINERS HOLDS CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY FROM THE INTERSTATE COMMERCE COMMISSION TO OPERATE AS A
COMMON CARRIER, BY MOTOR VEHICLE, OF GASOLINE AND PETROLEUM PRODUCTS IN
PENNSYLVANIA AND EIGHT OF THE CENTRAL STATES.  REFINERS, AS THE
COMMISSION FOUND, IS CONTROLLED THROUGH OWNERSHIP OF 82.6% OF ITS
OUTSTANDING COMMON STOCK BY UNION TANK CAR COMPANY, A NON-CARRIER
CORPORATION.  MARSHALL, A CORPORATION, HOLDS A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY UNDER THE GRANDFATHER CLAUSE, SEC. 206 OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 306, AUTHORIZING CARRIAGE, AS A
COMMON CARRIER, OF PETROLEUM PRODUCTS, IN BULK IN TANK TRUCKS, OVER
IRREGULAR ROUTES IN MARYLAND, DELAWARE, PENNSYLVANIA, VIRGINIA, AND
WASHINGTON, D.C. BY THEIR JOINT APPLICATION REFINERS AND MARSHALL
SOUGHT AUTHORITY OF THE COMMISSION UNDER SEC. 5(2)(A) FOR REFINERS TO
ACQUIRE BY PURCHASE THE OPERATING PROPERTY AND RIGHTS OF MARSHALL. 

AFTER A HEARING ON THE APPLICATION, IN WHICH NINE MOTOR CARRIERS, CO
APPELLANTS HERE, APPEARED AS PROTESTANTS, AND THE ANTITRUST DIVISION OF
THE DEPARTMENT OF JUSTICE INTERVENED, DIVISION 4 OF THE COMMISSION
ISSUED ITS REPORT FINDING THAT THE PROPOSED PURCHASE WAS WITHIN THE
SCOPE OF SEC. 5(2)(A) AND (B) AND WOULD BE CONSISTENT WITH THE PUBLIC
INTEREST.  IT OVERRULED CONTENTIONS OF THE PROTESTANTS THAT THE
PROPOSED PURCHASE WOULD RESULT IN THE ACQUISITION OF CONTROL OF
MARSHALL BY UNION, THE NON-CARRIER, THROUGH ITS CONTROL OF REFINERS,
THE PURCHASER, SO AS TO REQUIRE THAT UNION JOIN IN THE APPLICATION.  39
M.C.C. 93.  ON PETITION FOR REHEARING THE COMMISSION REVERSED THE
HOLDING OF DIVISION 4.  IT CONCLUDED THAT AS UNION, THE NON-CARRIER,
ALREADY CONTROLLED ONE CARRIER, REFINERS, THE PURCHASE OF THE PROPERTY
AND BUSINESS OF MARSHALL BY REFINERS WOULD RESULT IN THEIR CONTROL BY
UNION, AND THAT UNDER SECS. 5(2)(A) AND (B) AND RELATED SECTIONS THIS
COULD NOT BE DONE WITHOUT AN APPLICATION BY UNION FOR THE COMMISSION'S
AUTHORITY TO DO SO.  39 M.C.C. 271. 

UNION HAVING FAILED TO APPLY FOR THAT AUTHORITY WITHIN THE TWENTY
DAYS ALLOWED FOR THAT PURPOSE BY THE COMMISSION'S ORDER, THE COMMISSION
DISMISSED THE PENDING APPLICATION OF REFINERS AND MARSHALL.  UPON THE
SUIT OF APPELLEES THE DISTRICT COURT FOR MARYLAND, THREE JUDGES
SITTING, SET ASIDE THE COMMISSION'S ORDER, CIRCUIT JUDGE SOPER
DISSENTING, 52 F.SUPP.  1010, AND THE CASE COMES HERE ON APPEAL UNDER
28 U.S.C. SECS. 47(A), 345. 

AUTHORIZATION OF THE COMMISSION  ...  FOR TWO OR MORE CARRIERS TO
CONSOLIDATE OR MERGE THEIR PROPERTIES OR FRANCHISES ...  INTO ONE
CORPORATION FOR THE OWNERSHIP, MANAGEMENT, AND OPERATION OF THE
PROPERTIES THERETOFORE IN SEPARATE OWNERSHIP; OR FOR ANY CARRIER  ...
TO PURCHASE  ...  THE PROPERTIES  ... OF ANOTHER; ...  OR FOR A PERSON
WHICH IS NOT A CARRIER AND WHICH HAS CONTROL OF ONE OR MORE CARRIERS TO
ACQUIRE CONTROL OF ANOTHER CARRIER THROUGH OWNERSHIP OF ITS STOCK OR
OTHERWISE." 

UNDER SUBPARAGRAPH (A), THE CARRIER OR CARRIERS OR PERSON SEEKING
AUTHORITY THEREFOR SHALL PRESENT AN APPLICATION TO THE COMMISSION.  ...
"  AND SEC. 5(3) PROVIDES THAT "WHENEVER A PERSON WHICH IS NOT A
CARRIER IS AUTHORIZED, BY AN ORDER ENTERED UNDER PARAGRAPH (2), TO
ACQUIRE CONTROL OF ANY CARRIER OR OF TWO OR MORE CARRIERS, SUCH PERSON
THEREAFTER SHALL, TO THE EXTENT PROVIDED BY THE COMMISSION IN SUCH
ORDER, BE CONSIDERED AS A CARRIER SUBJECT TO" SPECIFIED PROVISIONS OF
THE ACT, RELATING MAINLY TO THE KEEPING OF ACCOUNTS, THE MAKING OF
REPORTS, ACCESS TO RECORDS, THE ISSUANCE OF SECURITIES AND THE
ASSUMPTION OF LIABILITIES. 

PARAGRAPH (2), TO ENTER INTO ANY TRANSACTION WITHIN THE SCOPE OF
SUBPARAGRAPH (A) THEREOF, OR TO ACCOMPLISH OR EFFECTUATE, OR TO
PARTICIPATE IN ACCOMPLISHING OR EFFECTUATING, THE CONTROL OR MANAGEMENT
IN A COMMON INTEREST OF ANY TWO OR MORE CARRIERS, HOWEVER SUCH RESULT
IS ATTAINED, WHETHER DIRECTLY OR INDIRECTLY, BY USE OF  ...  A HOLDING
OR INVESTMENT COMPANY OR COMPANIES, A VOTING TRUST OR TRUSTS, OR IN ANY
OTHER MANNER WHATSOEVER.  ...  AS USED IN THIS PARAGRAPH AND PARAGRAPH
(5), THE WORDS 'CONTROL OR MANAGEMENT' SHALL BE CONSTRUED TO INCLUDE
THE POWER TO EXERCISE CONTROL OR MANAGEMENT." 

IN DETERMINING WHETHER, UNDER THE NON-CARRIER CONTROL CLAUSE OF SEC.
5(2)(A), UNION, THE NON-CARRIER HERE, IS REQUIRED TO FILE AN
APPLICATION WITH THE COMMISSION, THE ISSUE TURNS ON THE QUESTIONS
WHETHER, WITHIN THE MEANING OF THE STATUTE, UNION IS BY THE PROPOSED
TRANSACTION ATTEMPTING TO "ACQUIRE CONTROL" OF MARSHALL AND, IF SO,
WHETHER UNION IS WITHIN THE REQUIREMENT OF SEC. 5(2)(B) THAT THE PERSON
SEEKING THE AUTHORITY OF THE COMMISSION TO ACQUIRE SUCH CONTROL SHALL
PRESENT HIS APPLICATION TO THE COMMISSION.  IN ANSWERING THESE
QUESTIONS THE DISTRICT COURT THOUGHT THAT THE SEVERAL INSTANCES
SPECIFIED BY SEC. 5(2)(A), IN WHICH THE COMMISSION IS AUTHORIZED TO
PERMIT ACQUISITION OF CARRIER CONTROL, ARE SEPARATE AND INDEPENDENT OF
EACH OTHER SO THAT, THE COMMISSION HAVING FULL AUTHORITY TO AUTHORIZE
REFINERS TO PURCHASE MARSHALL UNDER THE MERGER AND PURCHASE PROVISIONS
OF SEC. 5(2)(A), ITS AUTHORITY IN THAT RESPECT IS NOT LIMITED OR
SUPERSEDED BY THE NON-CARRIER CONTROL PROVISION APPEARING LATER IN THE
SUBPARAGRAPH AND THAT PROVISION IS THEREFORE INAPPLICABLE. 

IN ANY CASE, THE DISTRICT COURT CONCLUDED THAT THESE PROVISIONS ARE
PERMISSIVE ONLY, GIVING THE COMMISSION AUTHORITY TO ACT WITH RESPECT TO
ANY ONE WITHOUT REGARD TO THE RESTRICTION IMPOSED BY ANY OTHER.  SINCE
REFINERS' AND MARSHALL'S APPLICATION TO THE COMMISSION FOR APPROVAL OF
REFINERS' PURCHASE OF MARSHALL'S PROPERTY AND OPERATING RIGHTS ARE
WITHIN THE PERMISSIVE AUTHORITY OF THE COMMISSION UNDER THE PURCHASE
PROVISION OF SEC. 5(2)(A), THE COURT THOUGHT THAT IT WAS NOT NECESSARY
FOR UNION TO COMPLY WITH THE NON-CARRIER PROVISION AND WITH THE
REQUIREMENT OF SEC. 5(2)(B) BY JOINING IN THE APPLICATION EVEN THOUGH
THE NON-CARRIER PROVISION WOULD OTHERWISE BE APPLICABLE TO THE
TRANSACTION. 

BUT THIS OVERLOOKS THE FACT, WHICH THE COMMISSION THOUGHT
CONTROLLING, THAT THE PRESENT TRANSACTION MAY FALL WITHIN BOTH THE
PURCHASE PROVISION AND THE NON-CARRIER CONTROL PROVISION OF THE STATUTE
SINCE IT INVOLVES NOT ONLY THE PURCHASE OF MARSHALL BY REFINERS BUT
ALSO THE ACQUISITION OF CONTROL OF MARSHALL BY UNION, THROUGH ITS
CONTROL OF REFINERS.  THE QUESTION THEN IS NOT WHETHER THE NON-CARRIER
CONTROL PROVISION LIMITS OR SUPERSEDES THE PURCHASE PROVISION BUT
WHETHER, AS THE COMMISSION THOUGHT, BOTH APPLY, AND IF SO THE EXTENT TO
WHICH THEY RESTRICT THE COMMISSION'S AUTHORITY TO APPROVE THE
ACQUISITION OF CONTROL BY A NON-CARRIER WHICH HAS NOT FILED AN
APPLICATION PURSUANT TO SEC. 5(2)(B). 

AS A MATTER OF STATUTORY CONSTRUCTION IT DOES NOT FOLLOW THAT SUCH
PARTS OF THE PROPOSED TRANSACTION IN THIS CASE AS ARE SUBJECT TO THE
REQUIREMENT OF THE NON-CARRIER CONTROL PROVISION CAN ESCAPE THAT
REQUIREMENT BECAUSE THE TRANSACTION ALSO INVOLVES A PURCHASE WHICH
FALLS WITHIN AND SATISFIES THE REQUIREMENT OF THE PURCHASE PROVISION OF
THE STATUTE.  SECTION 5(4) PROHIBITS EACH OF THE TRANSACTIONS
ENUMERATED IN SEC. 5(2)(A) UNLESS APPROVED BY THE COMMISSION.  AND IT
IS PLAIN THAT IF THE PROPOSED TRANSACTION INVOLVES UNION'S NON-CARRIER
CONTROL OF MARSHALL WITHIN THE MEANING OF SEC. 5(2)(A) APPROPRIATE
APPLICATION TO THE COMMISSION FOR ITS APPROVAL MUST BE MADE IN
CONFORMITY TO SEC. 5(2)(B).  HENCE OUR INQUIRY MUST BE DIRECTED TO THE
NATURE OF THE REQUIREMENT OF THE NON-CARRIER CONTROL PROVISION OF THE
STATUTE AND TO THE QUESTION WHETHER IF APPLICABLE IT IS SATISFIED BY
APPELLEES' APPLICATION TO THE COMMISSION IN WHICH UNION DID NOT JOIN. 

IT IS NOT DOUBTED THAT IF UNION, HAVING CONTROL OF REFINERS, SOUGHT
TO ACQUIRE STOCK CONTROL OF MARSHALL, UNION WOULD BE REQUIRED BY SEC.
5(2)(B) TO APPLY FOR THE COMMISSION'S AUTHORITY TO DO SO.  BUT IT IS
SAID THAT HAVING CONTROL OF REFINERS, UNION MAY, BY PROCURING REFINERS'
COMPLIANCE WITH THE PURCHASE PROVISIONS OF THE STATUTE ALONE, EXTEND
ITS CONTROL INDEFINITELY TO OTHER CARRIERS MERELY BY DIRECTING THE
PURCHASE OF THEIR PROPERTY AND BUSINESS BY REFINERS, WITHOUT SUBJECTING
ITSELF TO THE JURISDICTION OF THE COMMISSION AS PROVIDED IN SEC. 5(3),
SO LONG AS UNION DOES NOT ACT DIRECTLY AS THE PURCHASER OF THE PROPERTY
FN1  OR OF A CONTROLLING STOCK INTEREST IN SUCH OTHER CARRIERS. 

WE THINK THAT NEITHER THE LANGUAGE NOR THE LEGISLATIVE HISTORY OF THE
STATUTE ADMITS OF SO NARROW A CONSTRUCTION.  SECTION SEC. 5(4) MAKES IT
UNLAWFUL, WITHOUT THE APPROVAL OF THE COMMISSION AS PROVIDED BY SEC.
5(2)(A), FOR A PERSON WHICH IS NOT A CARRIER AND WHICH HAS CONTROL OF
ONE OR MORE CARRIERS TO ACQUIRE CONTROL OF ANOTHER CARRIER THROUGH
OWNERSHIP OF ITS STOCK OR OTHERWISE.  NOT ONLY IS THIS LANGUAGE BROAD
ENOUGH IN TERMS TO EMBRACE THE ACQUISITION OF CONTROL BY A NON-CARRIER
THROUGH THE PURCHASE, BY A CONTROLLED CARRIER, OF THE PROPERTY AND
BUSINESS OF ANOTHER CARRIER, BUT THE LEGISLATIVE HISTORY INDICATES THAT
SUCH WAS ITS PURPOSE. 

CONGRESS, BY SEC. 407 OF THE TRANSPORTATION ACT OF 1920, 41 STAT.
480, AMENDED THE INTERSTATE COMMERCE ACT SO AS TO PROVIDE IN SEC. 5(2)
THAT THE COMMISSION SHOULD HAVE AUTHORITY TO PERMIT A RAIL CARRIER OR
CARRIERS TO ACQUIRE CONTROL OF ANOTHER BY LEASE OR PURCHASE OF STOCK;
BY SEC. 5(8) THE CARRIERS AFFECTED WERE RELIEVED FROM THE OPERATION OF
THE ANTITRUST LAWS, AND BY SEC. 5(6) THE COMMISSION WAS AUTHORIZED UPON
SPECIAL CONDITIONS TO APPROVE THE ACTUAL CONSOLIDATION OF RAIL
CARRIERS.  BY THE 1933 AMENDMENT OF SEC. 5(2), 48 STAT. 217, THE
COMMISSION WAS GIVEN FURTHER AUTHORITY TO PERMIT UNIFIED CONTROL OF TWO
SEPARATE CARRIERS "THROUGH OWNERSHIP OF THEIR STOCK" AND IN 1940, SEC.
5(2)(A) WAS AMENDED TO READ AS AT PRESENT BY THE ADDITION OF THE WORDS
"OR OTHERWISE" TO THE PHRASE LAST QUOTED, AND THE SECTION WAS MADE
APPLICABLE TO MOTOR CARRIERS, 54 STAT. 905.  SECTION 1(3)(B) OF THE ACT
AS AMENDED IN 1940 DECLARES THAT "CONTROL" "SHALL BE CONSTRUED TO
INCLUDE ACTUAL AS WELL AS LEGAL CONTROL, WHETHER MAINTAINED OR
EXERCISED THROUGH OR BY REASON OF THE METHOD OF OR CIRCUMSTANCES
SURROUNDING ORGANIZATION OR OPERATION, THROUGH OR BY COMMON DIRECTORS,
OFFICERS, OR STOCKHOLDERS, A VOTING TRUST OR TRUSTS, A HOLDING OR
INVESTMENT COMPANY OR COMPANIES, OR THROUGH OR BY ANY OTHER DIRECT OR
INDIRECT MEANS; AND TO INCLUDE THE POWER TO EXERCISE CONTROL." 

THE CONFERENCE COMMITTEE REPORT ON THE TRANSPORTATION ACT OF 1940,
H.R. REP. NO. 2832, 76TH CONG., 3D SESS., P. 63, POINTS OUT THAT THIS
DEFINITION OF "CONTROL" WAS ADDED IN ORDER TO MAKE APPLICABLE TO
SPECIFIED SECTIONS OF THE ACT, INCLUDING SEC. 5, THE BENEFIT OF THE
INTERPRETATION OF THIS COURT IN ROCHESTER TELEPHONE CO. V. UNITED
STATES, 307 U.S. 125, 145-6, OF THE SIMILAR DEFINITION OF "CONTROL" IN
SEC. 2 OF THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1065, 47 U.S.C. SEC.
152(B).  IN THAT CASE THIS COURT HAD EMPHASIZED THE BREADTH OF THE
STATUTORY LANGUAGE AS EMBRACING EVERY TYPE OF CONTROL IN FACT.  IT HAD
DECLARED THAT THE EXISTENCE OF CONTROL MUST BE DETERMINED BY A REGARD
FOR THE "ACTUALITIES" OF INTERCORPORATE RELATIONSHIPS AND THAT THE
COMMISSION'S DETERMINATIONS OF FACT, IF WARRANTED BY THE RECORD, WERE
CONCLUSIVE.    HERE THE STATUTE HAS DECLARED THAT THE NON-CARRIER
CONTROL TO BE APPROVED BY THE COMMISSION IS CONTROL THROUGH STOCK
OWNERSHIP "OR OTHERWISE."  SEC. 5(2)(A).  IT HAS IN THE BROADEST TERMS
PROHIBITED THE EFFECTUATING OF "CONTROL OR MANAGEMENT  ...  , HOWEVER
SUCH RESULT IS ATTAINED, WHETHER DIRECTLY OR INDIRECTLY, BY USE OF
COMMON DIRECTORS, OFFICERS, OR STOCKHOLDERS, A HOLDING OR INVESTMENT
COMPANY  ...  , OR IN ANY OTHER MANNER WHATSOEVER."  SEC. 5(4). 
"CONTROL OR MANAGEMENT" IS DEFINED TO INCLUDE "THE POWER TO EXERCISE
CONTROL OR MANAGEMENT."  SEC. 5(4).  THE CONTROL OR MANAGEMENT WHOSE
ACQUISITION IS PROHIBITED UNLESS THE APPROVAL OF THE COMMISSION IS
SECURED IS THAT WHICH IS OBTAINED "IN ANY  ...  MANNER WHATSOEVER"
"HOWEVER SUCH RESULT IS ATTAINED, WHETHER DIRECTLY OR INDIRECTLY," SEC.
5(4).  IT INCLUDES "ACTUAL AS WELL AS LEGAL CONTROL," SEC. 1(3)(B), AND
"THE POWER TO EXERCISE CONTROL OR MANAGEMENT," SEC. 5(4). 

APPELLEES ARGUE THAT THE COMMISSION, IN FINDING THAT THE PROPOSED
PURCHASE OF THE PROPERTY AND FRANCHISES OF MARSHALL WOULD BE AN
ACQUISITION OF "CONTROL" REQUIRING THE COMMISSION'S APPROVAL UNDER
SECS. 5(2)(A) AND 5(4), DISREGARDED THE WORDS OF THE STATUTE WHICH
SPEAKS ONLY OF ACQUISITION OF CONTROL OF ANOTHER "CARRIER," DEFINED IN
SEC. 1(3)(A) AS A PERSON, "NATURAL OR ARTIFICIAL," AND NOT OF
ACQUISITION OF CONTROL OF ITS PROPERTY.  BUT SUCH A LITERAL
INTERPRETATION OF THE STATUTE IGNORES ITS ESSENTIAL OBJECT.  WHAT SEC.
5(4) READ WITH SEC. 5(2)(A) PROHIBITS, UNLESS AUTHORIZED BY THE
COMMISSION, IS THE MERGER BY TWO OR MORE CARRIERS OF "THEIR PROPERTIES
OR FRANCHISES  ...  INTO ONE CORPORATION FOR THE OWNERSHIP, MANAGEMENT,
AND OPERATION OF THE PROPERTIES THERETOFORE IN SEPARATE OWNERSHIP," AND
THE ACQUISITION BY A NON-CARRIER, HAVING CONTROL OF ONE CARRIER, OF
CONTROL OF ANOTHER, OR THE EFFECTUATING IN ANY OTHER MANNER OF "THE
CONTROL OR MANAGEMENT IN A COMMON INTEREST OF ANY TWO OR MORE
CARRIERS." 

THE STATUTE IS THUS CONCERNED, NOT MERELY WITH THE ACQUISITION OF
CONTROL OF ONE CORPORATION BY ANOTHER, BUT WITH THE ACQUISITION OF
CONTROL OF A CORPORATION WHICH IS DOING THE BUSINESS OF A CARRIER,
BECAUSE SUCH CONTROL IS IN EFFECT CONTROL OF ITS CARRIER BUSINESS. 
CONTROL OF THAT BUSINESS, WHICH MAY BE EFFECTED BY STOCK OWNERSHIP, MAY
ALSO BE "OTHERWISE" EFFECTED THROUGH A CONTRACT OF A CONTROLLED CARRIER
TO PURCHASE THE BUSINESS OF THE OTHER CARRIER, IF THE PURCHASE RECEIVES
THE APPROVAL OF THE COMMISSION.  THE POWER THUS ACQUIRED OVER THE
VENDOR-CARRIER BY THE CONTRACT OF PURCHASE IS THE POWER "TO EXERCISE
CONTROL OR MANAGEMENT" OVER ITS CARRIER BUSINESS WHICH, UNDER SEC.
5(4), CAN BECOME EFFECTIVE ONLY WITH THE APPROVAL OF THE COMMISSION. 
AS THE COMMISSION POINTED OUT IN ITS REPORT, THERE CAN BE NO MORE
DIRECT OR POSITIVE MANNER OF OBTAINING CONTROL THAN BY OUTRIGHT
PURCHASE OF ANOTHER CARRIER'S BUSINESS AND PROPERTY AND THE PURPOSE OF
THE ACT WOULD BE DEFEATED IF OUTRIGHT PURCHASE, THROUGH THE MEDIUM OF A
CONTROLLED SUBSIDIARY CARRIER, OF ANOTHER CARRIER'S PROPERTY AND
OPERATING RIGHTS, WERE EXEMPTED, WHILE CONTROL BY PURCHASE OF STOCK OF
THE OTHER CARRIER THROUGH THE SAME SUBSIDIARY REMAINED WITHIN THE ACT. 

THE COMMISSION ALSO EMPHASIZED THE FACT THAT, AS THE MOTOR CARRIER
BUSINESS IS NOW ORGANIZED, PURCHASE OF THE ASSETS AND FRANCHISES OF
CARRIERS WOULD BE THE USUAL AND IN MANY CASES THE ONLY FEASIBLE METHOD
OF ACQUIRING CONTROL OF THEM.  IT POINTED OUT THAT MANY OF THE
BUSINESSES ARE OWNED BY INDIVIDUALS OR PARTNERSHIPS, OFTEN POSSESSING
EXTENSIVE OPERATING RIGHTS.  IN THE CASE OF CORPORATIONS THEIR STOCK IS
USUALLY CLOSELY HELD AND THEY ARE WITHOUT OUTSTANDING LONG-TERM DEBT
OBLIGATIONS.  IN ALL THESE CASES A SIMPLE AND USUAL METHOD OF ACQUIRING
CONTROL OF OTHER CARRIERS IS BY THE CASH PURCHASE OF THEIR ASSETS AND
OPERATING RIGHTS AND THE ASSUMPTION OF THEIR LIABILITIES FOLLOWED BY
LIQUIDATION OF THE VENDOR.  THE COMMISSION CONCLUDED, "PROCEEDING THUS
THROUGH A CONTROLLED SUBSIDIARY, A NON-CARRIER HOLDING COMPANY, OR
OTHERS, MAY EXPAND AT WILL WITHOUT BECOMING SUBJECT TO OUR JURISDICTION
UNDER THE CONSTRUCTION ADOPTED BY THE DIVISION.  WE CANNOT AGREE TO
THAT CONSTRUCTION OF 'CONTROL' AS USED IN THE ACT."  39 M.C.C. AT 275. 
FOR THE REASONS WHICH WE HAVE STATED WE THINK THE COMMISSION'S
CONSTRUCTION OF THE ACT IN THIS RESPECT IS CORRECT. 

THE QUESTION REMAINS WHETHER THE COMMISSION HAD AUTHORITY TO PROCEED
IN THE ABSENCE OF ANY APPLICATION BY UNION.  BY SEC. 5(4) ANY
TRANSACTION WITHIN THE SCOPE OF SUBPARAGRAPH (A) OF PARAGRAPH (2) IS
UNLAWFUL EXCEPT AS PROVIDED BY THAT PARAGRAPH, WHICH INCLUDES
SUBPARAGRAPH (B).  SECTION 5(2)(A), READ WITH SEC. 5(4), REQUIRES THE
ACQUISITION OF CONTROL TO BE WITH THE APPROVAL OF THE COMMISSION.  AND
SEC. 5(2)(B) REQUIRES THE "PERSON" SEEKING AUTHORITY FOR A TRANSACTION
COVERED BY SUBPARAGRAPH (A), HERE THE NON-CARRIER CONTROL OF MARSHALL,
TO PRESENT AN APPLICATION TO THE COMMISSION.  THE COMMISSION MAY
APPROVE THE APPLICATION "SUBJECT TO SUCH TERMS AND CONDITIONS AND SUCH
MODIFICATIONS AS IT SHALL FIND TO BE JUST AND REASONABLE."  THE PURPOSE
OF THESE PROVISIONS OF SECS. 5(2)(B) AND 5(4) IS APPARENT WHEN THEY ARE
READ WITH SEC. 5(3), WHICH AUTHORIZES THE COMMISSION, BY ITS ORDER
PERMITTING NON-CARRIER CONTROL, TO REQUIRE SUCH NON-CARRIER TO BE
CONSIDERED A CARRIER SUBJECT TO THE ACT TO THE EXTENT PROVIDED IN THE
ORDER MADE IN CONFORMITY TO SEC. 5(3). 

THE CONTROL OVER THE NON-CARRIER CONTEMPLATED BY SEC. 5(3) CAN BE
ACQUIRED ONLY IF THE NON-CARRIER SUBJECTS ITSELF TO THE JURISDICTION OF
THE COMMISSION BY FILING ITS APPLICATION WITH THE COMMISSION FOR ITS
APPROVAL OF SUCH NON-CARRIER CONTROL AS IS PROVIDED BY SEC. 5(2)(B). 
THE PURPOSE OF SEC. 5(3) TO SUBJECT THE NON-CARRIER, THUS ACQUIRING
CONTROL, TO SPECIFIED PROVISIONS OF THE ACT WOULD BE DEFEATED IF THE
NON-CARRIER WERE NOT TO BECOME SUBJECT TO THE COMMISSION'S ORDER.  THAT
IS AVOIDED BY MAKING IT UNLAWFUL TO ACQUIRE NON-CARRIER CONTROL SAVE ON
THE NON-CARRIER'S APPLICATION TO THE COMMISSION IN CONFORMITY TO SEC.
5(2)(B).  AS APPELLEES' APPLICATION TO THE COMMISSION INVOLVED THE
ACQUISITION OF NON-CARRIER CONTROL OF MARSHALL BY UNION, UNION WAS A
PERSON SEEKING AUTHORITY FOR SUCH CONTROL AND AS SUCH WAS REQUIRED BY
SEC. 5(2)(B) TO MAKE APPLICATION TO THE COMMISSION.  TO APPROVE THE
TRANSACTION INVOLVING SUCH NON-CARRIER CONTROL WITHOUT THE APPLICATION
OF THE NON-CARRIER WOULD BE TO AUTHORIZE UNION'S NON-CARRIER CONTROL OF
MARSHALL WITHOUT SUBJECTING THE FORMER TO THE COMMISSION'S JURISDICTION
AS REQUIRED BY SEC. 5(3). 

THE COMMISSION RIGHTLY CONCLUDED THAT IT WAS WITHOUT AUTHORITY TO
APPROVE SUCH CONTROL UNLESS UNION, THE NON-CARRIER, FILED ITS
APPLICATION WITH THE COMMISSION, AND SINCE UNION FAILED TO DO SO WITHIN
THE TIME ALLOWED BY THE COMMISSION'S ORDER, THE COMMISSION PROPERLY
DISMISSED THE PENDING APPLICATION IN WHICH UNION HAD FAILED TO JOIN. 
IT WAS THEREFORE ERROR FOR THE DISTRICT COURT TO SET ASIDE THE
COMMISSION'S ORDER AND THE JUDGMENT OF THE DISTRICT COURT IS REVERSED. 

FN1  SUCH AN ACQUISITION OF OPERATING PROPERTY, WHETHER OR NOT WITHIN
SEC. 5(2)(A), WOULD RENDER THE ACQUIRING CORPORATION AN OPERATING
CARRIER WITHIN SECS. 203(A)(14)-(16) SUBJECT AS SUCH TO THE
JURISDICTION OF THE COMMISSION UNDER PART II.  SIMILARLY THE TRANSFER
OF THE CARRIER'S OPERATING FRANCHISES WOULD BE SUBJECT TO THE
COMMISSION'S JURISDICTION UNDER SEC. 212(B). 

MR. JUSTICE ROBERTS IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED FOR THE REASONS GIVEN BY THE DISTRICT COURT. 
..END :























ALLEN CO. V. CASH REGISTER CO., 322 U.S. 137 


NO. 592.  ARGUED MARCH 28, 1944.  - DECIDED MAY 1, 1944.  - APPEAL
DISMISSED. 


PURSUANT TO THE PROVISIONS OF AN EARLIER DECREE OF INJUNCTION IN A
SUIT BY THE UNITED STATES AGAINST A DEFENDANT UNDER THE ANTITRUST LAWS,
THE DEFENDANT PETITIONED FOR AND WAS GRANTED LEAVE ON CERTAIN
CONDITIONS TO ACQUIRE STOCK OF A COMPETITOR.  THE PROCEEDING WAS
ADVERSARY THROUGHOUT AND NEITHER PARTY APPEALED.  THE APPELLANT HERE
HAD SOUGHT BUT WAS DENIED LEAVE TO INTERVENE.  HELD: 

1.  UNDER RULE 24(A) OF THE RULES OF CIVIL PROCEDURE, APPELLANT WAS
NOT ENTITLED TO INTERVENE AS OF RIGHT.  P. 140. 

(A)  NO STATUTE OF THE UNITED STATES CONFERRED AN "UNCONDITIONAL
RIGHT" TO INTERVENE.  CLAYTON ACT, SEC. 16; R.C.P. 24(A)(1).  P. 140. 

(B)  THE APPELLANT WOULD NOT BE BOUND BY ANY JUDGMENT IN THE ACTION. 
R.C.P. 24(A)(2).  P. 141. 

(C)  APPELLANT HAD NO INTEREST IN "A DISTRIBUTION OR OTHER
DISPOSITION OF PROPERTY IN THE CUSTODY OF THE COURT."  R.C.P.
24(A)(3).  P. 141. 

(D)  MISSOURI-KANSAS PIPE LINE CO. V. UNITED STATES, 312 U.S. 502,
DISTINGUISHED.  P. 141. 

2.  UPON THE ENTIRE RECORD, IT DOES NOT APPEAR THAT THE DISTRICT
COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT LEAVE TO
INTERVENE.  R.C.P. 24(B)(2).  P. 142. 

WHERE EXAMINATION OF THE ENTIRE RECORD LEADING TO THE COURT'S FINAL
ORDER DISCLOSES THAT THE ISSUES WERE THOROUGHLY EXPLORED AND THAT THE
PARTIES WERE ADEQUATELY REPRESENTED, THE ACTION OF THE COURT DENYING
INTERVENTION SHOULD NOT BE REVIEWED. 

ALLEN CALCULATORS, INC. V. NATIONAL CASH REGISTER CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF OHIO. 

APPEAL UNDER THE EXPEDITING ACT FROM AN ORDER OF THE DISTRICT COURT
DENYING LEAVE TO INTERVENE IN AN ANTITRUST PROCEEDING. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

BY A DECREE, ENTERED FEBRUARY 1, 1916, IN A SUIT BY THE UNITED STATES
AGAINST NATIONAL CASH REGISTER COMPANY, THE LATTER WAS RESTRAINED,
PURSUANT TO THE ANTITRUST STATUTES, FROM ACQUIRING OWNERSHIP OR CONTROL
OF THE BUSINESS OR PLANT OF A COMPETITOR MANUFACTURING OR SELLING CASH
REGISTERS OR OTHER REGISTERING DEVICES.  THE INJUNCTION, HOWEVER,
PROVIDED THAT, IN CASE NATIONAL SHOULD DESIRE SUCH ACQUISITION, "A
PETITION MAY BE PRESENTED TO THIS COURT STATING THE REASONS THEREFOR,
AND IF THE COURT UPON INVESTIGATION INTO ALL THE CIRCUMSTANCES OF THE
CASE AND AFTER NOTICE OF NOT LESS THAN SIXTY DAYS TO THE ATTORNEY
GENERAL SHALL DETERMINE THAT SUCH BUSINESS OR PATENTS OR PLANT SO
DESIRED TO BE ACQUIRED WILL SUPPLEMENT THE PLANT, PATENTS, MACHINES, OR
FACILITIES OF THE DEFENDANT CORPORATION AND THAT THE ACQUISITION
THEREOF IS DESIRED FOR THAT PURPOSE AND WILL NOT SUBSTANTIALLY LESSEN
COMPETITION, THEN JURISDICTION IS RESERVED TO PASS AN ORDER PERMITTING
THE SAME UPON SUCH TERMS AND CONDITIONS AS MAY BE RIGHT." 

NATIONAL, DESIRING TO ACQUIRE STOCK OF ALLEN-WALES ADDING MACHINE
CORPORATION, PETITIONED FOR LEAVE AND GAVE THE REQUIRED NOTICE TO THE
ATTORNEY GENERAL.  THE GOVERNMENT FILED AN ANSWER OPPOSING THE GRANT. 
THE MATTER WAS SET FOR HEARING IN THE DISTRICT COURT NOVEMBER 15,
1943.  ON THAT DAY ALLEN CALCULATORS, INC., THE APPELLANT, PRESENTED A
MOTION FOR LEAVE TO INTERVENE.  THE UNITED STATES CONSENTED TO THE
PROPOSED INTERVENTION; NATIONAL OPPOSED IT.  THE DISTRICT JUDGE GRANTED
INTERVENTION CONDITIONALLY AND ALLOWED COUNSEL FOR THE APPELLANT TO
MAKE AN OPENING STATEMENT AND TO TAKE SOME PART IN THE PROCEEDINGS. 
SUBSEQUENTLY, BUT PRIOR TO THE CLOSING OF THE HEARING, HE RULED THAT
THE APPELLANT WOULD NOT BE ALLOWED TO INTERVENE.  BEFORE MAKING HIS
RULING, HE WAS ADVISED, IN ANSWER TO HIS INQUIRY, THAT THE PRESIDENT OF
THE APPELLANT WOULD BE CALLED AS A WITNESS BY THE GOVERNMENT.  NOVEMBER
16 HE ENTERED A FORMAL ORDER DENYING INTERVENTION. 

THE ISSUES, WHICH WERE TRIED UPON EVIDENCE SUBMITTED BY NATIONAL AND
BY THE GOVERNMENT, WERE WHETHER THE PURPORTED ACQUISITION WOULD
ELIMINATE COMPETITION BETWEEN CERTAIN PRODUCTS OF NATIONAL AND ALLEN
WALES, WOULD ELIMINATE POTENTIAL COMPETITION BETWEEN OTHER PRODUCTS OF
THE TWO COMPANIES, AND WOULD, IN OTHER RESPECTS, BE CONTRARY TO THE
PURPOSE OF THE ORIGINAL DECREE.  THE PROCEEDING WAS ADVERSARY
THROUGHOUT. 

DECEMBER 4 THE APPELLANT FILED ITS PETITION FOR APPEAL FROM THE ORDER
DENYING INTERVENTION.  DECEMBER 7 THE DISTRICT JUDGE ENTERED FINDINGS
OF FACT AND AN ORDER GRANTING NATIONAL'S PETITION UPON CERTAIN
CONDITIONS WHICH HE DEEMED NECESSARY TO INSURE COMPLIANCE WITH THE
ORIGINAL DECREE IN THE SUIT.  NEITHER PARTY HAS APPEALED FROM THAT
ORDER.  DECEMBER 10 THE JUDGE ALLOWED THIS APPEAL WITH A PROVISO THAT
ALLOWANCE SHOULD NOT OPERATE AS A STAY OF THE ORDER GRANTING NATIONAL'S
PETITION.  THE APPEAL IS TO THIS COURT UNDER THE EXPEDITING ACT.  FN1 

RULE 24 OF THE RULES OF CIVIL PROCEDURE FN2  IS: 

"(A)  INTERVENTION OF RIGHT.  - UPON TIMELY APPLICATION ANYONE SHALL
BE PERMITTED TO INTERVENE IN AN ACTION:  (1) WHEN A STATUTE OF THE
UNITED STATES CONFERS AN UNCONDITIONAL RIGHT TO INTERVENE; OR (2) WHEN
THE REPRESENTATION OF THE APPLICANT'S INTEREST BY EXISTING PARTIES IS
OR MAY BE INADEQUATE AND THE APPLICANT IS OR MAY BE BOUND BY A JUDGMENT
IN THE ACTION; OR (3) WHEN THE APPLICANT IS SO SITUATED AS TO BE
ADVERSELY AFFECTED BY A DISTRIBUTION OR OTHER DISPOSITION OF PROPERTY
IN THE CUSTODY OF THE COURT OR OF AN OFFICER THEREOF. 

"(B)  PERMISSIVE INTERVENTION.  - UPON TIMELY APPLICATION ANYONE MAY
BE PERMITTED TO INTERVENE IN AN ACTION:  (1) WHEN A STATUTE OF THE
UNITED STATES CONFERS A CONDITIONAL RIGHT TO INTERVENE; OR (2) WHEN AN
APPLICANT'S CLAIM OR DEFENSE AND THE MAIN ACTION HAVE A QUESTION OF LAW
OR FACT IN COMMON.  IN EXERCISING ITS DISCRETION THE COURT SHALL
CONSIDER WHETHER THE INTERVENTION WILL UNDULY DELAY OR PREJUDICE THE
ADJUDICATION OF THE RIGHTS OF THE ORIGINAL PARTIES." 

THE APPELLANT INSISTS THAT IT WAS ENTITLED TO INTERVENE AS OF RIGHT,
BUT WE THINK THAT, IN THE LIGHT OF THE EXPRESS PROVISIONS OF CLAUSE (A)
THE CONTENTION MUST BE REJECTED.  NO STATUTE OF THE UNITED STATES
CONFERS AN UNCONDITIONAL RIGHT OF INTERVENTION, AS REQUIRED BY (1). 
THE APPELLANT RELIES ON SEC. 16 OF THE CLAYTON ACT,  FN3  BUT THAT
THREATENED DAMAGE CONSEQUENT UPON THE VIOLATION OF THE ANTI-TRUST
LAWS.  IT GRANTS NO PRIVILEGE, MUCH LESS AN UNCONDITIONAL RIGHT, TO
INTERVENE IN SUITS UNDER THE SHERMAN ACT BROUGHT BY THE UNITED STATES. 
THE APPLICATION DID NOT FALL UNDER (2) FOR THE APPELLANT CLEARLY WOULD
NOT BE BOUND BY ANY JUDGMENT IN THE ACTION.  NOR HAD IT ANY INTEREST IN
THE DISTRIBUTION OR DISPOSITION OF PROPERTY IN THE CUSTODY OF THE COURT
SO AS TO COME UNDER (3). 

THE APPELLANT RELIES UPON MISSOURI-KANSAS PIPE LINE CO. V. UNITED
STATES, 312 U.S. 502.  THAT CASE, HOWEVER, IS TO BE DISTINGUISHED. 
THERE THE APPLICANT ON WHOSE BEHALF INTERVENTION WAS ASKED WAS NAMED IN
THE ORIGINAL DECREE AS ONE WHO SHOULD BE HEARD IN RESPECT OF ITS
PROPERTY RIGHTS IN THE EVENT CERTAIN ACTION WAS TAKEN.  SUCH ACTION WAS
TAKEN AND, DESPITE THE TERMS OF THE ORIGINAL DECREE, INTERVENTION WAS
DENIED.  CLEARLY, AS TO THE INTERVENOR, THE ACTION WAS FINAL.  WE
ACCORDINGLY ENTERTAINED THE APPEAL. 

THE APPELLANT HAD STANDING TO INVOKE THE DISCRETION OF THE DISTRICT
JUDGE TO PERMIT IT TO INTERVENE UNDER (B)(2) ON THE GROUND THAT ITS
"CLAIM OR DEFENSE AND THE MAIN ACTION HAVE A QUESTION OF LAW OR FACT IN
COMMON."  THE RULE PROVIDES THAT, IN EXERCISING DISCRETION AS TO
INTERVENTION OF THIS CHARACTER, THE COURT SHALL CONSIDER WHETHER
INTERVENTION WILL UNDULY DELAY OR PREJUDICE THE ADJUDICATION OF THE
RIGHTS OF THE ORIGINAL PARTIES.  IT IS COMMON KNOWLEDGE THAT, WHERE A
SUIT IS OF LARGE PUBLIC INTEREST, THE MEMBERS OF THE PUBLIC OFTEN
DESIRE TO PRESENT THEIR VIEWS TO THE COURT IN SUPPORT OF THE CLAIM OR
THE DEFENSE.  TO PERMIT A MULTITUDE OF SUCH INTERVENTIONS MAY RESULT IN
ACCUMULATING PROOFS AND ARGUMENTS WITHOUT ASSISTING THE COURT.  THE
RECORD HERE DISCLOSES THAT THE PARTIES PRODUCED ALL DATA THEY AND THE
COURT THOUGHT WAS AVAILABLE UPON THE ISSUES IN THE CASE.  MOREOVER, THE
COURT INVITED THE GOVERNMENT TO CALL THE APPELLANT'S PRESIDENT TO
TESTIFY AS TO HIS KNOWLEDGE CONCERNING THE ISSUES. 

THE CHALLENGED ORDER IS BUT AN ORDER IN THE CAUSE AND NOT THE FINAL
JUDGMENT.  THE EXERCISE OF DISCRETION IN A MATTER OF THIS SORT IS NOT
REVIEWABLE BY AN APPELLATE COURT UNLESS CLEAR ABUSE IS SHOWN; AND IT IS
NOT ORDINARILY POSSIBLE TO DETERMINE THAT QUESTION EXCEPT IN THE LIGHT
OF THE WHOLE RECORD.  IF, IN THIS CASE, NATIONAL'S PETITION HAD
ULTIMATELY BEEN DISMISSED, A REVIEW OF THE COURT'S DENIAL OF
APPELLANT'S INTERVENTION WOULD HAVE BEEN AN IDLE GESTURE.  WHERE, AS
HERE, EXAMINATION OF THE ENTIRE RECORD LEADING TO THE COURT'S FINAL
ORDER DISCLOSES THAT THE ISSUES WERE THOROUGHLY EXPLORED AND THAT THE
PARTIES WERE ADEQUATELY REPRESENTED, THE ACTION OF THE COURT DENYING
INTERVENTION SHOULD NOT BE REVIEWED.  IT WAS, INTER ALIA, TO PREVENT
THE DELAY OF UNWARRANTED APPEALS BY DISAPPOINTED APPLICANTS TO
INTERVENE, WHICH WOULD SUSPEND THE ULTIMATE DISPOSITION OF SUITS UNDER
THE ANTITRUST ACTS, THAT JURISDICTION TO REVIEW DISTRICT COURT DECREES
WAS NOT VESTED IN THE CIRCUIT COURTS OF APPEALS BUT SOLELY IN THIS
COURT, AND THAT THE STATUTE LIMITED THE RIGHT OF APPEAL TO FINAL
DECREES.  FN4 

THE RECORD SHOWS THAT THE DISTRICT COURT HAD ENTERED A FINAL DECREE
ON THE MERITS OF NATIONAL'S PETITION PRIOR TO ALLOWING THE PRESENT
APPEAL; AND, IF WE TREAT THE APPEAL AS TAKEN FROM THAT FINAL DECREE, AS
WE THINK IS REQUIRED BY THE EXPEDITING ACT,  FN5  AND AS ATTACKING THAT
DECREE BECAUSE THE APPELLANT HAD BEEN WRONGFULLY DENIED INTERVENTION,
WE SHOULD HAVE TO AFFIRM THE JUDGMENT SINCE IT IS NOT SHOWN THAT THE
DISTRICT COURT ABUSED ITS DISCRETION IN DENYING INTERVENTION.  FN6 

THE APPEAL IS DISMISSED. 

FN1  ACT OF FEB. 11, 1903, C. 544, SEC. 2, 32 STAT. 823, AS AMENDED
MARCH 3, 1911, C. 231, SEC. 291, 36 STAT. 1167, 15 U.S.C. SEC. 29.  CF.
ACT OF FEB. 13, 1925, C. 229, SEC. 1, 43 STAT. 938, 28 U.S.C. SEC.
345. 

FN2  28 U.S.C.A., FOLLOWING SEC. 723C. 

FN3  15 U.S.C. SEC. 26. 

FN4  UNITED STATES V. CALIFORNIA CANNERIES, 279 U.S. 553. 

FN5  UNITED STATES V. CALIFORNIA CANNERIES, SUPRA. 

FN6  ID., CASES CITED P. 556. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY
DISSENT. 
..END :




ASHCRAFT V. TENNESSEE, 322 U.S. 143 


NO. 391.  ARGUED FEBRUARY 28, 1944.  - DECIDED MAY 1, 1944.  -
REVERSED. 


1.  UPON REVIEW HERE OF A CONVICTION OF A DEFENDANT IN A CRIMINAL CASE
IN A STATE COURT, IT IS THE DUTY OF THIS COURT TO MAKE AN INDEPENDENT
EXAMINATION OF THE DEFENDANT'S CLAIM THAT HIS CONVICTION, ALLEGED TO
HAVE BEEN OBTAINED THROUGH THE USE IN EVIDENCE OF CONFESSIONS COERCED
BY LAW ENFORCEMENT OFFICERS, WAS IN VIOLATION OF HIS RIGHTS UNDER THE
FEDERAL CONSTITUTION.  P. 147. 

2.  AN INDEPENDENT EXAMINATION BY THIS COURT OF THE DEFENDANT'S CLAIM
IN SUCH A CASE CAN NOT BE FORECLOSED BY THE FINDING OF THE STATE COURT,
OR THE VERDICT OF A JURY, OR BOTH.  P. 148. 

3.  THE TREATMENT OF THE ALLEGED CONFESSIONS BY THE TWO STATE COURTS,
AND THE TRIAL COURT'S INSTRUCTIONS TO THE JURY IN RESPECT OF THE
ALLEGED CONFESSIONS, MAKE MORE IMPORTANT IN THIS CASE AN INDEPENDENT
EXAMINATION BY THIS COURT OF THE DEFENDANTS' CLAIMS.  P. 147. 

4.  UPON UNDISPUTED EVIDENCE, THIS COURT CONCLUDES THAT IF THE
DEFENDANT ASHCRAFT MADE A CONFESSION IT WAS NOT VOLUNTARY BUT
COMPELLED, AND THAT HIS CONVICTION, RESTING UPON THE ALLEGED
CONFESSION, MUST BE SET ASIDE AS IN VIOLATION OF THE FEDERAL
CONSTITUTION.  P. 153. 

THE UNCONTRADICTED EVIDENCE - INTER ALIA, THAT ASHCRAFT HAD BEEN HELD
INCOMMUNICADO FOR THIRTY-SIX HOURS, DURING WHICH TIME WITHOUT SLEEP OR
REST, HE HAD BEEN INTERROGATED BY RELAYS OF OFFICERS AND INVESTIGATORS
SHOWED A SITUATION INHERENTLY COERCIVE. 

5.  IN MAKING SUCH DISPOSITION OF CASES AS JUSTICE MAY REQUIRE, THIS
COURT MUST CONSIDER ANY CHANGE, IN FACT OR IN LAW, WHICH HAS SUPERVENED
SINCE THE JUDGMENT WAS ENTERED.  P. 156. 

6.  THE CONVICTION OF A CODEFENDANT HAVING BEEN SUSTAINED BY THE
STATE COURT UPON THE ASSUMPTION THAT ASHCRAFT'S CONFESSION WAS PROPERLY
ADMITTED AND HIS CONVICTION VALID, THE JUDGMENT AS TO THE CODEFENDANT
IS VACATED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS.  P. 155. 

ASHCRAFT ET AL. V. TENNESSEE. 

CERTIORARI TO THE SUPREME COURT OF TENNESSEE. 

CERTIORARI, 320 U.S. 728, TO REVIEW THE AFFIRMANCE OF CONVICTIONS OF
TWO DEFENDANTS TRIED JOINTLY IN THE STATE COURT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

ABOUT THREE O'CLOCK ON THE MORNING OF THURSDAY, JUNE 5, 1941, MRS.
ZELMA IDA ASHCRAFT GOT IN HER AUTOMOBILE AT HER HOME IN MEMPHIS,
TENNESSEE, AND SET OUT ON A TRIP TO VISIT HER MOTHER'S HOME IN
KENTUCKY.  LATE IN THE AFTERNOON OF THE SAME DAY, HER CAR WAS OBSERVED
A FEW MILES OUT OF MEMPHIS, STANDING ON THE WRONG SIDE OF A ROAD WHICH
SHE WOULD LIKELY HAVE TAKEN ON HER JOURNEY.  JUST OFF THE ROAD, IN A
SLOUGH, HER LIFELESS BODY WAS FOUND.  ON HER HEAD WERE CUT PLACES
INFLICTED BY BLOWS SUFFICIENT TO HAVE CAUSED HER DEATH.  PETITIONER
WARE, AGE 20, A NEGRO, WAS INDICTED IN A STATE COURT AND FOUND GUILTY
OF HER MURDER.  PETITIONER ASHCRAFT, AGE 45, A WHITE MAN, HUSBAND OF
THE DECEASED, CHARGED WITH HAVING HIRED WARE TO COMMIT THE MURDER, WAS
TRIED JOINTLY WITH WARE AND CONVICTED AS AN ACCESSORY BEFORE THE FACT. 
BOTH WERE SENTENCED TO NINETY-NINE YEARS IN THE STATE PENITENTIARY. 
THE SUPREME COURT OF TENNESSEE AFFIRMED THE CONVICTIONS. 

IN APPLYING TO US FOR CERTIORARI, WARE AND ASHCRAFT URGED THAT
ALLEGED CONFESSIONS WERE USED AT THEIR TRIAL WHICH HAD BEEN EXTORTED
FROM THEM BY STATE LAW ENFORCEMENT OFFICERS IN VIOLATION OF THE
FOURTEENTH AMENDMENT, AND THAT "SOLELY AND ALONE" ON THE BASIS OF THESE
CONFESSIONS THEY HAD BEEN CONVICTED.  THEIR CONTENTIONS RAISED A
FEDERAL QUESTION WHICH THE RECORD SHOWED TO BE SUBSTANTIAL AND WE
BROUGHT BOTH CASES HERE FOR REVIEW.  UPON ORAL ARGUMENT BEFORE THIS
COURT TENNESSEE'S LEGAL REPRESENTATIVES CONCEDED THAT THE CONVICTIONS
COULD NOT BE SUSTAINED WITHOUT THE CONFESSIONS BUT DEFENDED THEIR USE
UPON THE GROUND THAT THEY WERE NOT COMPELLED BUT WERE "FREELY AND
VOLUNTARILY MADE." 

THE RECORD DISCLOSES THAT NEITHER THE TRIAL COURT NOR THE TENNESSEE
SUPREME COURT ACTUALLY HELD AS A MATTER OF FACT THAT PETITIONERS'
CONFESSIONS WERE "FREELY AND VOLUNTARILY MADE."  THE TRIAL COURT HEARD
EVIDENCE ON THE ISSUE OUT OF THE JURY'S HEARING, BUT DID NOT ITSELF
DETERMINE FROM THAT EVIDENCE THAT THE CONFESSIONS WERE VOLUNTARY. 
INSTEAD IT OVERRULED ASHCRAFT'S OBJECTION TO THE USE OF HIS ALLEGED
CONFESSION WITH THE STATEMENT THAT, "THIS COURT IS NOT ABLE TO HOLD, AS
A MATTER OF LAW, THAT REASONABLE MINDS MIGHT NOT DIFFER ON THE QUESTION
OF WHETHER OR NOT THAT ALLEGED CONFESSION WAS VOLUNTARILY OBTAINED." 
AND IT LIKEWISE OVERRULED WARE'S OBJECTION TO USE OF HIS ALLEGED
CONFESSION, STATING THAT "THE REASONABLE MINDS OF TWELVE MEN MIGHT  ...
DIFFER AS TO  ...  WHETHER WARE'S CONFESSION WAS VOLUNTARY, AND  ...
THEREFORE, THAT IS A QUESTION OF FACT FOR THE JURY TO PASS ON."  FN1
NOR DID THE STATE SUPREME COURT REVIEW THE EVIDENCE PERTAINING TO THE
CONFESSIONS AND AFFIRMATIVELY HOLD THEM VOLUNTARY.  IN SUSTAINING THE
PETITIONERS' CONVICTIONS, ONE JUSTICE DISSENTING, IT WENT NO FURTHER
THAN TO POINT OUT THAT, "THE TRIAL JUDGE ...  HELD  ...  HE COULD NOT
SAY THAT THE CONFESSIONS WERE NOT VOLUNTARILY MADE AND, THEREFORE,
PERMITTED THEM TO GO TO THE JURY," AND TO DECLARE THAT IT, LIKEWISE,
WAS "UNABLE TO SAY THAT THE CONFESSIONS WERE NOT FREELY AND VOLUNTARILY
MADE."  FN2 

IF, THEREFORE, THE QUESTION OF THE VOLUNTARINESS OF THE TWO
CONFESSIONS WAS ACTUALLY DECIDED AT ALL IT WAS BY THE JURY.  AND THE
JURY WAS CHARGED GENERALLY ON THE SUBJECT OF THE TWO CONFESSIONS AS
FOLLOWS: 

"I FURTHER CHARGE YOU THAT IF VERBAL OR WRITTEN STATEMENTS MADE BY
THE DEFENDANTS FREELY AND VOLUNTARILY AND WITHOUT FEAR OF PUNISHMENT OR
HOPE OF REWARD, HAVE BEEN PROVEN TO YOU IN THIS CASE, YOU MAY TAKE THEM
INTO CONSIDERATION WITH ALL OF THE OTHER FACTS AND CIRCUMSTANCES IN THE
CASE.  ...  IN STATEMENTS MADE AT THE TIME OF THE ARREST, YOU MAY TAKE
INTO CONSIDERATION THE CONDITION OF THE MINDS OF THE PRISONERS OWING TO
THEIR ARREST AND WHETHER THEY WERE INFLUENCED BY MOTIVES OF HOPE OR
FEAR, TO MAKE THE STATEMENTS.  SUCH A STATEMENT IS COMPETENT EVIDENCE
AGAINST THE DEFENDANT WHO MAKES IT AND IS NOT COMPETENT EVIDENCE
AGAINST THE OTHER DEFENDANT  ...  YOU CANNOT CONSIDER IT FOR ANY
PURPOSE AGAINST THE OTHER DEFENDANT."  CONCERNING ASHCRAFT'S ALLEGED
CONFESSION THIS GENERAL CHARGE CONSTITUTED THE SOLE INSTRUCTION TO THE
JURY.  FN3  BUT WITH REGARD TO WARE'S ALLEGED CONFESSION THE JURY
FURTHER WAS INSTRUCTED: 

"IT IS HIS (WARE'S) FURTHER THEORY THAT HE WAS INDUCED BY THE FEAR OF
VIOLENCE AT THE HANDS OF A MOB AND BY FEAR OF THE OFFICERS OF THE LAW
TO CONFESS HIS GUILT OF THE CRIME CHARGED AGAINST HIM, BUT THAT SUCH
CONFESSION WAS FALSE AND THAT HE HAD NOTHING WHATSOEVER TO DO WITH, AND
NO KNOWLEDGE OF THE ALLEGED CRIME.  IF YOU BELIEVE THE THEORY OF THE
DEFENDANT, WARE,  ...  IT IS YOUR DUTY TO ACQUIT HIM."  HAVING
SUBMITTED THE TWO ALLEGED CONFESSIONS TO THE JURY IN THIS MANNER, THE
TRIAL COURT INSTRUCTED THE JURY THAT: "WHAT THE PROOF MAY SHOW YOU, IF
ANYTHING, THAT THE DEFENDANTS HAVE SAID AGAINST THEMSELVES, THE LAW
PRESUMES TO BE TRUE, BUT ANYTHING THE DEFENDANTS HAVE SAID IN THEIR OWN
BEHALF, YOU ARE NOT OBLIGED TO BELIEVE.  ...  " 

THIS TREATMENT OF THE CONFESSIONS BY THE TWO STATE COURTS, THE MANNER
OF THE CONFESSIONS' SUBMISSION TO THE JURY, AND THE EMPHASIS UPON THE
GREAT WEIGHT TO BE GIVEN CONFESSIONS MAKE ALL THE MORE IMPORTANT THE
KIND OF "INDEPENDENT EXAMINATION" OF PETITIONERS' CLAIMS WHICH, IN ANY
EVENT, WE ARE BOUND TO MAKE.  LISENBA V. CALIFORNIA, 314 U.S. 219, 237
238.  OUR DUTY TO MAKE THAT EXAMINATION COULD NOT HAVE BEEN "FORECLOSED
BY THE FINDING OF A COURT, OR THE VERDICT OF A JURY, OR BOTH."  ID.  WE
PROCEED THEREFORE TO CONSIDER THE EVIDENCE RELATING TO THE
CIRCUMSTANCES OUT OF WHICH THE ALLEGED CONFESSIONS CAME. 

FIRST, AS TO ASHCRAFT.  ASHCRAFT WAS BORN ON AN ARKANSAS FARM.  AT
THE AGE OF ELEVEN HE LEFT THE FARM AND BECAME A FARM HAND WORKING FOR
OTHERS.  YEARS LATER HE GRAVITATED INTO CONSTRUCTION WORK, FINALLY
BECOMING A SKILLED DRAGLINE AND STEAM-SHOVEL OPERATOR.  UNCONTRADICTED
EVIDENCE IN THE RECORD WAS THAT HE HAD ACQUIRED FOR HIMSELF "AN
EXCELLENT REPUTATION."  IN 1929 HE MARRIED THE DECEASED ZELMA IDA
ASHCRAFT.  CHILDLESS, THEY ACCUMULATED, APPARENTLY THROUGH ASHCRAFT'S
EARNINGS, A VERY MODEST AMOUNT OF JOINTLY HELD PROPERTY INCLUDING BANK
ACCOUNTS AND AN EQUITY IN THE HOME IN WHICH THEY LIVED.  THE SUPREME
COURT OF TENNESSEE FOUND "NOTHING TO SHOW BUT WHAT THE HOME LIFE OF
ASHCRAFT AND THE DECEASED WAS PLEASANT AND HAPPY."  SEVERAL OF MRS.
ASHCRAFT'S FRIENDS WHO WERE GUESTS AT THE ASHCRAFT HOME ON THE NIGHT
BEFORE HER TRAGIC DEATH TESTIFIED THAT BOTH HUSBAND AND WIFE APPEARED
TO BE IN A HAPPY FRAME OF MIND. 

THE OFFICERS FIRST TALKED TO ASHCRAFT ABOUT 6 P.M. ON THE DAY OF HIS
WIFE'S MURDER AS HE WAS RETURNING HOME FROM WORK.  INFORMED BY THEM OF
THE TRAGEDY, HE WAS TAKEN TO AN UNDERTAKING ESTABLISHMENT TO IDENTIFY
HER BODY WHICH PREVIOUSLY HAD BEEN IDENTIFIED ONLY BY A DRIVER'S
LICENSE.  FROM THERE HE WAS TAKEN TO THE COUNTY JAIL WHERE HE CONFERRED
WITH THE OFFICERS UNTIL ABOUT 2 A.M.  NO CLUES OF ULTIMATE VALUE CAME
FROM THIS CONFERENCE, THOUGH IT DID RESULT IN THE OFFICERS' HOLDING AND
INTERROGATING THE ASHCRAFTS' MAID AND SEVERAL OF HER FRIENDS.  DURING
THE FOLLOWING WEEK THE OFFICERS MADE EXTENSIVE INVESTIGATIONS IN
ASHCRAFT'S NEIGHBORHOOD AND ELSEWHERE AND FURTHER CONFERRED WITH
ASHCRAFT HIMSELF ON SEVERAL OCCASIONS, BUT NONE OF THESE ACTIVITIES
PRODUCED TANGIBLE EVIDENCE POINTING TO THE IDENTITY OF THE MURDERER. 

THEN, EARLY IN THE EVENING OF SATURDAY, JUNE 14, THE OFFICERS CAME TO
ASHCRAFT'S HOME AND "TOOK HIM INTO CUSTODY."  IN THE WORDS OF THE
TENNESSEE SUPREME COURT, 

"THEY TOOK HIM TO AN OFFICE OR ROOM ON THE NORTHWEST CORNER OF THE
FIFTH FLOOR OF THE SHELBY COUNTY JAIL.  THIS OFFICE IS EQUIPPED WITH
ALL SORTS OF CRIME AND DETECTIVE DEVICES SUCH AS A FINGERPRINT OUTFIT,
CAMERAS, HIGH-POWERED LIGHTS, AND SUCH OTHER DEVICES AS MIGHT BE FOUND
IN A HOMICIDE INVESTIGATING OFFICE.  ...  IT APPEARS THAT THE OFFICERS
PLACED ASHCRAFT AT A TABLE IN THIS ROOM ON THE FIFTH FLOOR OF THE
COUNTY JAIL WITH A LIGHT OVER HIS HEAD AND BEGAN TO QUIZ HIM.  THEY
QUESTIONED HIM IN RELAYS UNTIL THE FOLLOWING MONDAY MORNING, JUNE 16,
1941, AROUND NINE-THIRTY OR TEN O'CLOCK.  IT APPEARS THAT ASHCRAFT FROM
SATURDAY EVENING AT SEVEN O'CLOCK UNTIL MONDAY MORNING AT APPROXIMATELY
NINE-THIRTY NEVER LEFT THIS HOMICIDE ROOM ON THE FIFTH FLOOR."  FN4
TESTIMONY OF THE OFFICERS SHOWS THAT THE REASON THEY QUESTIONED
ASHCRAFT "IN RELAYS" WAS THAT THEY BECAME SO TIRED THEY WERE COMPELLED
TO REST.  BUT FROM 7:00 SATURDAY EVENING UNTIL 9:30 MONDAY MORNING
ASHCRAFT HAD NO REST.  ONE OFFICER DID SAY THAT HE GAVE THE SUSPECT A
SINGLE FIVE MINUTES' RESPITE, BUT EXCEPT FOR THIS FIVE MINUTES THE
PROCEDURE CONSISTED OF ONE CONTINUOUS STREAM OF QUESTIONS. 

AS TO WHAT HAPPENED IN THE FIFTH-FLOOR JAIL ROOM DURING THIS THIRTY
SIX HOUR SECRET EXAMINATION THE TESTIMONY FOLLOWS THE USUAL PATTERN AND
IS IN HOPELESS CONFLICT.  FN5  ASHCRAFT SWEARS THAT THE FIRST THING
SAID TO HIM WHEN HE WAS TAKEN INTO CUSTODY WAS, "WHY IN HELL DID YOU
KILL YOUR WIFE?"; THAT DURING THE COURSE OF THE EXAMINATION HE WAS
THREATENED AND ABUSED IN VARIOUS WAYS; AND THAT AS THE HOURS PASSED HIS
EYES BECAME BLINDED BY A POWERFUL ELECTRIC LIGHT, HIS BODY BECAME
WEARY, AND THE STRAIN ON HIS NERVES BECAME UNBEARABLE.  FN6  THE
OFFICERS, ON THE OTHER HAND, SWEAR THAT THROUGHOUT THE QUESTIONING THEY
WERE KIND AND CONSIDERATE.  THEY SAY THAT THEY DID NOT ACCUSE ASHCRAFT
OF THE MURDER UNTIL FOUR HOURS AFTER HE WAS BROUGHT TO THE JAIL
BUILDING, THOUGH THEY FREELY ADMIT THAT FROM THAT TIME ON THEIR BARRAGE
OF QUESTIONS WAS CONSTANTLY DIRECTED AT HIM ON THE ASSUMPTION THAT HE
WAS THE MURDERER.  TOGETHER WITH OTHER PERSONS WHOM THEY BROUGHT IN ON
MONDAY MORNING TO WITNESS THE CULMINATION OF THE THIRTY-SIX HOUR ORDEAL
THE OFFICERS DECLARE THAT AT THAT TIME ASHCRAFT WAS "COOL," "CALM,"
"COLLECTED," "NORMAL"; THAT HIS VISION WAS UNIMPAIRED AND HIS EYES NOT
BLOODSHOT; AND THAT HE SHOWED NO OUTWARD SIGNS OF BEING TIRED OR
SLEEPY. 

AS TO WHETHER ASHCRAFT ACTUALLY CONFESSED, THERE IS A SIMILAR
CONFLICT OF TESTIMONY.  ASHCRAFT MAINTAINS THAT ALTHOUGH THE OFFICERS
INCESSANTLY ATTEMPTED BY VARIOUS TACTICS OF INTIMIDATION TO ENTRAP HIM
INTO A CONFESSION, NOT ONCE DID HE ADMIT KNOWLEDGE CONCERNING OR
PARTICIPATION IN THE CRIME.  AND HE SPECIFICALLY DENIES THE OFFICERS'
STATEMENTS THAT HE ACCUSED WARE OF THE CRIME, INSISTING THAT IN
RESPONSE TO THEIR QUESTIONS HE MERELY GAVE THEM THE NAME OF WARE AS ONE
OF SEVERAL MEN WHO OCCASIONALLY HAD RIDDEN WITH HIM TO WORK.  THE
OFFICERS' VERSION OF WHAT HAPPENED, HOWEVER, IS THAT ABOUT 11 P.M. ON
SUNDAY NIGHT, AFTER TWENTY-EIGHT HOURS' CONSTANT QUESTIONING, ASHCRAFT
MADE A STATEMENT THAT WARE HAD OVERPOWERED HIM AT HIS HOME AND ABDUCTED
THE DECEASED, AND WAS PROBABLY THE KILLER.  ABOUT MIDNIGHT THE OFFICERS
FOUND WARE AND TOOK HIM INTO CUSTODY, AND, ACCORDING TO THEIR
TESTIMONY, WARE MADE A SELF-INCRIMINATING STATEMENT AS OF EARLY MONDAY
MORNING, AND AT 5:40 A.M. SIGNED BY MARK A WRITTEN CONFESSION IN WHICH
APPEARED THE STATEMENT THAT ASHCRAFT HAD HIRED HIM TO COMMIT THE
MURDER.  THIS ALLEGED CONFESSION OF WARE WAS READ TO ASHCRAFT ABOUT SIX
O'CLOCK MONDAY MORNING, WHEREUPON ASHCRAFT IS SAID SUBSTANTIALLY TO
HAVE ADMITTED ITS TRUTH IN A DETAILED STATEMENT TAKEN DOWN BY A
REPORTER.  ABOUT 9:30 MONDAY MORNING A TRANSCRIPT OF ASHCRAFT'S
PURPORTED STATEMENT WAS READ TO HIM.  THE STATE'S POSITION IS THAT HE
AFFIRMED ITS TRUTH BUT REFUSED TO SIGN THE TRANSCRIPT, SAYING THAT HE
FIRST WANTED TO CONSULT HIS LAWYER.  AS TO THIS LATTER 9:30 EPISODE THE
OFFICERS' TESTIMONY IS REINFORCED BY TESTIMONY OF THE SEVERAL PERSONS
WHOM THEY BROUGHT IN TO WITNESS THE END OF THE EXAMINATION. 

IN REACHING OUR CONCLUSION AS TO THE VALIDITY OF ASHCRAFT'S
CONFESSION WE DO NOT RESOLVE ANY OF THE DISPUTED QUESTIONS OF FACT
RELATING TO THE DETAILS OF WHAT TRANSPIRED WITHIN THE CONFESSION
CHAMBER OF THE JAIL OR WHETHER ASHCRAFT ACTUALLY DID CONFESS.  FN7
SUCH DISPUTES, WE MAY SAY, ARE AN INESCAPABLE CONSEQUENCE OF SECRET
INQUISITORIAL PRACTICES.  AND ALWAYS EVIDENCE CONCERNING THE INNER
DETAILS OF SECRET INQUISITIONS  FN8  IS WEIGHTED AGAINST AN ACCUSED,
PARTICULARLY WHERE, AS HERE, HE IS CHARGED WITH A BRUTAL CRIME, OR
WHERE, AS IN MANY OTHER CASES, HIS SUPPOSED OFFENSE BEARS RELATION TO
AN UNPOPULAR ECONOMIC, POLITICAL, OR RELIGIOUS CAUSE. 

OUR CONCLUSION IS THAT IF ASHCRAFT MADE A CONFESSION IT WAS NOT
VOLUNTARY BUT COMPELLED.  WE REACH THIS CONCLUSION FROM FACTS WHICH ARE
NOT IN DISPUTE AT ALL.  ASHCRAFT, A CITIZEN OF EXCELLENT REPUTATION,
WAS TAKEN INTO CUSTODY BY POLICE OFFICERS.  TEN DAYS' EXAMINATION OF
THE ASHCRAFTS' MAID, AND OF SEVERAL OTHERS, IN JAIL WHERE THEY WERE
HELD, HAD REVEALED NOTHING WHATEVER AGAINST ASHCRAFT.  INQUIRIES AMONG
HIS NEIGHBORS AND BUSINESS ASSOCIATES LIKEWISE HAD FAILED TO UNEARTH
ONE SINGLE TANGIBLE CLUE POINTING TO HIS GUILT.  FOR THIRTY-SIX HOURS
AFTER ASHCRAFT'S SEIZURE DURING WHICH PERIOD HE WAS HELD INCOMMUNICADO,
WITHOUT SLEEP OR REST, RELAYS OF OFFICERS, EXPERIENCED INVESTIGATORS,
AND HIGHLY TRAINED LAWYERS QUESTIONED HIM WITHOUT RESPITE.  FROM THE
BEGINNING OF THE QUESTIONING AT 7 O'CLOCK ON SATURDAY EVENING UNTIL 6
O'CLOCK ON MONDAY MORNING ASHCRAFT DENIED THAT HE HAD ANYTHING TO DO
WITH THE MURDER OF HIS WIFE.  AND AT A HEARING BEFORE A MAGISTRATE
ABOUT 8:30 MONDAY MORNING ASHCRAFT PLEADED NOT GUILTY TO THE CHARGE OF
MURDER WHICH THE OFFICERS HAD SOUGHT TO MAKE HIM CONFESS DURING THE
PREVIOUS THIRTY-SIX HOURS.    WE THINK A SITUATION SUCH AS THAT HERE
SHOWN BY UNCONTRADICTED EVIDENCE IS SO INHERENTLY COERCIVE THAT ITS
VERY EXISTENCE IS IRRECONCILABLE WITH THE POSSESSION OF MENTAL FREEDOM
BY A LONE SUSPECT AGAINST WHOM ITS FULL COERCIVE FORCE IS BROUGHT TO
BEAR.  FN9  IT IS INCONCEIVABLE THAT ANY COURT OF JUSTICE IN THE LAND,
CONDUCTED AS OUR COURTS ARE, OPEN TO THE PUBLIC, WOULD PERMIT
PROSECUTORS SERVING IN RELAYS TO KEEP A DEFENDANT WITNESS UNDER
CONTINUOUS CROSS-EXAMINATION FOR THIRTY-SIX HOURS WITHOUT REST OR SLEEP
IN AN EFFORT TO EXTRACT A "VOLUNTARY" CONFESSION.  NOR CAN WE,
CONSISTENTLY WITH CONSTITUTIONAL DUE PROCESS OF LAW, HOLD VOLUNTARY A
CONFESSION WHERE PROSECUTORS DO THE SAME THING AWAY FROM THE
RESTRAINING INFLUENCES OF A PUBLIC TRIAL IN AN OPEN COURT ROOM.  FN10 

THE CONSTITUTION OF THE UNITED STATES STANDS AS A BAR AGAINST THE
CONVICTION OF ANY INDIVIDUAL IN AN AMERICAN COURT BY MEANS OF A COERCED
CONFESSION.  FN11  THERE HAVE BEEN, AND ARE NOW, CERTAIN FOREIGN
NATIONS WITH GOVERNMENTS DEDICATED TO AN OPPOSITE POLICY:  GOVERNMENTS
WHICH CONVICT INDIVIDUALS WITH TESTIMONY OBTAINED BY POLICE
ORGANIZATIONS POSSESSED OF AN UNRESTRAINED POWER TO SEIZE PERSONS
SUSPECTED OF CRIMES AGAINST THE STATE, HOLD THEM IN SECRET CUSTODY, AND
WRING FROM THEM CONFESSIONS BY PHYSICAL OR MENTAL TORTURE.  SO LONG AS
THE CONSTITUTION REMAINS THE BASIC LAW OF OUR REPUBLIC, AMERICA WILL
NOT HAVE THAT KIND OF GOVERNMENT. 

SECOND, AS TO WARE.  ASHCRAFT AND WARE WERE JOINTLY TRIED, AND WERE
CONVICTED ON THE THEORY THAT ASHCRAFT HIRED WARE TO PERFORM THE
MURDER.  WARE'S CONVICTION WAS SUSTAINED BY THE TENNESSEE SUPREME COURT
ON THE ASSUMPTION THAT ASHCRAFT'S CONFESSION WAS PROPERLY ADMITTED AND
HIS CONVICTION VALID.  WHETHER IT WOULD HAVE BEEN SUSTAINED HAD THE
COURT REACHED THE CONCLUSION WE HAVE REACHED AS TO ASHCRAFT WE CANNOT
KNOW.  DOUBT AS TO WHAT THE STATE COURT WOULD HAVE DONE UNDER THE
CHANGED CIRCUMSTANCES BROUGHT ABOUT BY OUR REVERSAL OF ITS DECISION AS
TO ASHCRAFT IS EMPHASIZED BY THE POSITION OF THE STATE'S
REPRESENTATIVES IN THIS COURT.  THEY HAVE ASKED THAT IF WE REVERSE
ASHCRAFT'S CONVICTION WE ALSO REVERSE WARE'S. 

IN DISPOSING OF CASES BEFORE US IT IS OUR RESPONSIBILITY TO MAKE SUCH
DISPOSITION AS JUSTICE MAY REQUIRE.  "AND IN DETERMINING WHAT JUSTICE
DOES REQUIRE, THE COURT IS BOUND TO CONSIDER ANY CHANGE, EITHER IN FACT
OR IN LAW, WHICH HAS SUPERVENED SINCE THE JUDGMENT WAS ENTERED." 
PATTERSON V. ALABAMA, 294 U.S. 600, 607; STATE TAX COMMISSION V. VAN
COTT, 306 U.S. 511, 515-516.  APPLICATION OF THIS GUIDING PRINCIPLE TO
THE CASE AT HAND REQUIRES THAT WE SEND WARE'S CASE BACK TO THE
TENNESSEE SUPREME COURT.  SHOULD THAT COURT IN PASSING ON WARE'S
CONVICTION IN THE LIGHT OF OUR RULING AS TO ASHCRAFT ADOPT THE STATE
ATTORNEY GENERAL'S VIEW AND REVERSE THE CONVICTION THERE THEN WOULD BE
NO OCCASION FOR OUR PASSING ON THE FEDERAL QUESTION HERE RAISED BY
WARE.  UNDER THESE CIRCUMSTANCES WE VACATE THE JUDGMENT OF THE
TENNESSEE SUPREME COURT AFFIRMING WARE'S CONVICTION, AND REMAND HIS
CASE TO THAT COURT FOR FURTHER PROCEEDINGS. 

THE JUDGMENT AFFIRMING ASHCRAFT'S CONVICTION IS REVERSED AND THE
CAUSE IS REMANDED TO THE SUPREME COURT OF TENNESSEE FOR PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  THE LEGAL TEST APPLIED BY THE TRIAL COURT TO DETERMINE THE
ADMISSIBILITY OF THE TWO CONFESSIONS WAS STATED THUS: 

"THE COURT HAS COME TO THE CONCLUSION  ...  THAT THE LAW IN TENNESSEE
WITH REFERENCE TO CONFESSION IS SIMPLY THIS:  IT IS LARGELY A QUESTION
OF FACT AS TO WHETHER OR NOT A CONFESSION IS VOLUNTARY, AND IS MADE
WITHOUT HOPE OF REWARD OR FEAR OF PUNISHMENT.  IT ONLY BECOMES A
QUESTION OF LAW FOR THE COURT TO DECIDE WHEN, FROM THE FACTS
SURROUNDING THE TAKING OF THE ALLEGED CONFESSIONS OR STATEMENTS, THE
COURT, AS A MATTER OF LAW, CAN HOLD THAT THE STATE HAS FAILED TO CARRY
ITS BURDEN, WHICH IT HAS OF SHOWING THAT THE CONFESSIONS WERE FREE AND
VOLUNTARY, AND THAT REASONABLE MINDS COULD NOT DIFFER, AND COULD COME
TO BUT ONE CONCLUSION THAT THE CONFESSIONS WERE INVOLUNTARY AND
FORCED." 

FN2  NOTWITHSTANDING THE APPARENT FACT THAT NEITHER THE TRIAL COURT
NOR THE APPELLATE COURT AFFIRMATIVELY HELD THE CONFESSIONS VOLUNTARY,
THE TENNESSEE SUPREME COURT, IN ITS OPINION, RESTATED THE RULE IT HAD
ANNOUNCED IN PREVIOUS CASES, THAT, "WHEN CONFESSIONS ARE OFFERED AS
EVIDENCE, THEIR COMPETENCY BECOMES A PRELIMINARY QUESTION, TO BE
DETERMINED BY THE COURT.  ... (IF) THE JUDGE ALLOW THE JURY TO
DETERMINE THE PRELIMINARY FACT, IT IS ERROR, FOR WHICH THE JUDGMENT
WILL BE REVERSED."  SEE SELF V. STATE, 65 TENN. 244, 253. 

FN3  ON MOTION FOR NEW TRIAL, ASHCRAFT'S COUNSEL URGED ERROR IN THAT,
"THE COURT  ...  IN DELIVERING HIS CHARGE TO THE JURY  ...  IN NO PLACE
OR AT ANY TIME  ...  PRESENTED THE THEORY OF THE DEFENDANT ASHCRAFT TO
THE JURY.  HE WHOLLY AND COMPLETELY IN HIS CHARGE IGNORED THE
CONTENTION AND THEORY OF THE DEFENDANT ASHCRAFT THAT THE ALLEGED
CONFESSION OR ADMISSIONS MADE BY HIM  ... WERE NOT FREELY AND
VOLUNTARILY MADE.  ...  " 

FN4  FROM THE TESTIMONY IT APPEARS THAT ASHCRAFT WAS TAKEN FROM THE
JAIL ABOUT 11 O'CLOCK SUNDAY NIGHT FOR A PERIOD OF APPROXIMATELY AN
HOUR TO HELP THE OFFICERS HUNT THE PLACE WHERE WARE LIVED.  ON HIS
RETURN ASHCRAFT WAS, FOR A SHORT TIME, KEPT IN A JAIL ROOM DIFFERENT
FROM THAT IN WHICH HE WAS KEPT THE REST OF THE TIME. 

FN5  "AS THE REPORT AVERS, "THE THIRD DEGREE IS A SECRET AND ILLEGAL
PRACTICE.'  HENCE THE DIFFICULTY OF DISCOVERING THE FACTS AS TO THE
EXTENT AND MANNER IT IS PRACTICED."  IV REPORTS OF NATIONAL COMMITTEE
ON LAW OBSERVANCE AND ENFORCEMENT (WICKERSHAM COMMISSION), U.S.
GOVERNMENT PRINTING OFFICE, 1931, LAWLESSNESS IN LAW ENFORCEMENT, P.
3.  STATION HOUSES AND JAILS ARE MOST FREQUENTLY EMPLOYED FOR THIRD
DEGREE PRACTICES, "UPSTAIRS ROOMS OR BACK ROOMS BEING SOMETIMES PICKED
OUT FOR THEIR GREATER PRIVACY."  ID., THE THIRD DEGREE, P. 170.  CF.
CHAMBERS V. FLORIDA, 309 U.S. 227, 238. 

FN6  "WORK' IS THE TERM USED TO SIGNIFY ANY FORM OF WHAT IS COMMONLY
CALLED THE THIRD DEGREE, AND MAY CONSIST IN NOTHING MORE THAN A SEVERE
CROSS-EXAMINATION.  PERHAPS IN MOST CASES IT IS NO MORE THAN THAT, BUT
THE PRISONER KNOWS THAT HE IS WHOLLY AT THE MERCY OF HIS INQUISITOR AND
THAT THE SEVERE CROSS-EXAMINATION MAY AT ANY MOMENT SHIFT TO A SEVERE
BEATING.  ...  POWERFUL LIGHTS TURNED FULL ON THE PRISONER'S FACE, OR
SWITCHED ON AND OFF HAVE BEEN FOUND EFFECTIVE.  ...  THE MOST COMMONLY
USED METHOD IS PERSISTENT QUESTIONING, CONTINUING HOUR AFTER HOUR,
SOMETIMES BY RELAYS OF OFFICERS.  IT HAS BEEN KNOWN SINCE 1500 AT LEAST
THAT DEPRIVATION OF SLEEP IS THE MOST EFFECTIVE TORTURE AND CERTAIN TO
PRODUCE ANY CONFESSION DESIRED."  REPORT OF COMMITTEE ON LAWLESS
ENFORCEMENT OF LAW MADE TO THE SECTION OF CRIMINAL LAW AND CRIMINOLOGY
OF THE AMERICAN BAR ASSOCIATION (1930) 1 AMERICAN JOURNAL OF POLICE
SCIENCE 575, 579-580, ALSO QUOTED IN IV WICKERSHAM REPORT, SUPRA, P.
47. 

FN7  THE USE IN EVIDENCE OF A DEFENDANT'S COERCED CONFESSION CANNOT
BE JUSTIFIED ON THE GROUND THAT THE DEFENDANT HAS DENIED HE EVER GAVE
THE CONFESSION.  WHITE V. TEXAS, 310 U.S. 530, 531-532. 

FN8  STATE AND FEDERAL COURTS, TEXTBOOK WRITERS, LEGAL COMMENTATORS,
AND GOVERNMENTAL COMMISSIONS CONSISTENTLY HAVE APPLIED THE NAME OF
"INQUISITION" TO PROLONGED EXAMINATION OF SUSPECTS CONDUCTED AS WAS THE
EXAMINATION OF ASHCRAFT.  SEE, E.G., CASES CITED IN IV WICKERSHAM
REPORT, SUPRA, AND ALSO PP. 44, 47, 48, AND PASSIM; POUND (CUTHBERT
W.), INQUISITORIAL CONFESSIONS, 1 CORNELL L.Q. 77; CHAMBERS V. FLORIDA,
309 U.S. 227, 237; BRAM V. UNITED STATES, 168 U.S. 532, 544; BROWN V.
WALKER, 161 U.S. 591, 596; COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 573;
CF. COOPER V. STATE, 86 ALA. 610, 611, 6 SO. 110.  IN A CASE WHERE NO
PHYSICAL VIOLENCE WAS INFLICTED OR THREATENED, THE SUPREME COURT OF
VIRGINIA EXPRESSLY APPROVED THE STATEMENT OF THE TRIAL JUDGE THAT THE
MANNER AND METHODS USED IN OBTAINING THE CONFESSION READ "LIKE A
CHAPTER FROM THE HISTORY OF THE INQUISITION OF THE MIDDLE AGES."  ENOCK
V. COMMONWEALTH, 141 VA. 411, 423, 126 S.E. 222, 225; AND SEE CROSS V.
STATE, 142 TENN. 510, 514, 221 S.W. 489.  THE ANALOGY, OF COURSE, WAS
IN THE FACT THAT OLD INQUISITION PRACTICES INCLUDED QUESTIONING
SUSPECTS IN SECRET PLACES, AWAY FROM FRIENDS AND COUNSEL, WITH NOTARIES
WAITING TO TAKE DOWN "CONFESSIONS," AND WITH ARRANGEMENTS TO HAVE THE
SUSPECT LATER AFFIRM THE TRUTH OF HIS CONFESSION IN THE PRESENCE OF
WITNESSES WHO TOOK NO PART IN THE INQUISITION.  SEE ENCYCLOPEDIA
BRITANNICA, FOURTEENTH ED., "INQUISITION"; PRESCOTT, FERDINAND AND
ISABELLA, SIXTH ED., PART FIRST, CHAP. VII, THE INQUISITION; VIII
WIGMORE ON EVIDENCE, THIRD ED., P. 307.  "IN THE MORE SERIOUS OFFENSES
THE PARTY SUSPECTED IS ARRESTED, HE IS PLACED ON HIS INQUISITION BEFORE
THE CHIEF OF POLICE, AND A STATEMENT IS OBTAINED.  ...  WHERE THE
OFFICE OF THE DISTRICT ATTORNEY IS IN POLITICAL HARMONY WITH THE POLICE
SYSTEM, THE DISTRICT ATTORNEY IS GENERALLY INVITED TO BE PRESENT AS AN
INQUISITOR."  2 WHARTON ON CRIMINAL EVIDENCE, ELEVENTH ED., PP. 1021
1022; AND SEE NOTES 5 AND 6, SUPRA. 

AN ADMIRABLE SUMMARY OF THE GENERALLY EXPRESSED JUDICIAL ATTITUDE
TOWARD THESE PRACTICES IS SET FORTH IN THE REPORT OF THE COMMITTEE ON
LAWLESS ENFORCEMENT OF LAW, 1 AMER.  JOURN.  OF POLICE SCIENCE, SUPRA,
P. 587:  "HOLDING INCOMMUNICADO IS OBJECTIONABLE BECAUSE ARBITRARY - AT
THE MERE WILL AND UNREGULATED PLEASURE OF A POLICE OFFICER.   ...  THE
USE OF THE THIRD DEGREE IS OBNOXIOUS BECAUSE IT IS SECRET; BECAUSE THE
PRISONER IS WHOLLY UNREPRESENTED; BECAUSE THERE IS PRESENT NO NEUTRAL,
IMPARTIAL AUTHORITY TO DETERMINE QUESTIONS BETWEEN THE POLICE AND THE
PRISONER; BECAUSE THERE IS NO LIMIT TO THE RANGE OF THE INQUISITION,
NOR TO THE PRESSURE THAT MAY BE PUT UPON THE PRISONER." 

FN9  BRAM V. UNITED STATES, 168 U.S. 532, 556, 562-563; SEE ALSO WAN
V. UNITED STATES, 266 U.S. 1, 14-15; BURDEAU V. MCDOWELL, 256 U.S. 465,
475; COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 573-574; 3 ELLIOT'S
DEBATES, PP. 445-449, 452; CF. CHAMBERS V. FLORIDA, 309 U.S. 227.  THE
QUESTION IN THE BRAM CASE WAS WHETHER BRAM HAD BEEN COMPELLED OR
COERCED BY A POLICE OFFICER TO MAKE A SELF-INCRIMINATORY STATEMENT,
CONTRARY TO THE FIFTH AMENDMENT; AND THE QUESTION HERE IS WHETHER
ASHCRAFT SIMILARLY WAS COERCED TO MAKE SUCH A STATEMENT, CONTRARY TO
THE FOURTEENTH AMENDMENT.  LISENBA V. CALIFORNIA, 314 U.S. 219, 236
238.  TAKEN TOGETHER, THE BRAM AND LISENBA CASES HOLD THAT A COERCED OR
COMPELLED CONFESSION CANNOT BE USED TO CONVICT A DEFENDANT IN ANY STATE
OR FEDERAL COURT.  AND THE DECISION IN THE BRAM CASE MAKES IT CLEAR
THAT THE ADMITTED CIRCUMSTANCES UNDER WHICH ASHCRAFT IS ALLEGED TO HAVE
CONFESSED PRECLUDE A HOLDING THAT HE ACTED VOLUNTARILY. 

FN10  COMPARE THE FOLLOWING ALLEGATION CONTAINED IN ASHCRAFT'S MOTION
FOR NEW TRIAL, "THE SHERIFF'S DEPUTIES  ...  SET THEMSELVES UP AS A
QUASI JUDICIAL TRIBUNAL AND TRIED  ...  AND CONVICTED HIM THERE AND IN
SO DOING RENDERED A TRIAL  ...  BEFORE THE TRIAL COURT  ...  AND THE
JURY OF PEERS  ... A MERE FORMALITY," WITH LISENBA V. CALIFORNIA,
SUPRA, P. 237.  "THE REQUIREMENT OF A PUBLIC TRIAL IS FOR THE BENEFIT
OF THE ACCUSED; THAT THE PUBLIC MAY SEE HE IS FAIRLY DEALT WITH AND NOT
UNJUSTLY CONDEMNED, AND THAT THE PRESENCE OF INTERESTED SPECTATORS MAY
KEEP HIS TRIERS KEENLY ALIVE TO A SENSE OF THEIR RESPONSIBILITY AND TO
THE IMPORTANCE OF THEIR FUNCTIONS  ...  "  COOLEY'S CONSTITUTIONAL
LIMITATIONS, SIXTH ED. (1890) P. 379; SEE ALSO KEDDINGTON V. STATE, 19
ARIZ. 457, 459, 172 P. 273.  "THE AID OF COUNSEL IN PREPARATION WOULD
BE FARCICAL IF THE CASE COULD BE FORECLOSED BY A PRELIMINARY
INQUISITION WHICH WOULD SQUEEZE OUT CONVICTION OR PREJUDICE BY MEANS
UNCONSTITUTIONAL IF USED AT THE TRIAL."  WOOD V. UNITED STATES, 128
F.2D 265, 271.  SEE ALSO CHAMBERS V. FLORIDA, SUPRA, P. 237, NOTE 10. 

FN11  CHAMBERS V. FLORIDA, 309 U.S. 227; CANTY V. ALABAMA, 309 U.S.
629; WHITE V. TEXAS, 310 U.S. 530; LOMAX V. TEXAS, 313 U.S. 544; VERNON
V. ALABAMA, 313 U.S. 547; LISENBA V. CALIFORNIA, 314 U.S. 219, 236-238;
WARD V. TEXAS, 316 U.S. 547, 555; AND SEE BRAM V. UNITED STATES, 168
U.S. 532. 

MR. JUSTICE JACKSON, DISSENTING: 

A SOVEREIGN STATE IS NOW BEFORE US, SUMMONED ON THE CHARGE THAT IT
HAS OBTAINED CONVICTIONS BY METHODS SO UNFAIR THAT A FEDERAL COURT MUST
SET ASIDE WHAT THE STATE COURTS HAVE DONE.  HERETOFORE THE STATE HAS
HAD THE BENEFIT OF A PRESUMPTION OF REGULARITY AND LEGALITY.  A
CONFESSION MADE BY ONE IN CUSTODY HERETOFORE HAS BEEN ADMISSIBLE IN
EVIDENCE UNLESS IT WAS PROVED AND FOUND THAT IT WAS OBTAINED BY
PRESSURES SO STRONG THAT IT WAS IN FACT INVOLUNTARILY MADE, THAT THE
INDIVIDUAL WILL OF THE PARTICULAR CONFESSOR HAD BEEN OVERCOME BY
TORTURE, MOB VIOLENCE, FRAUD, TRICKERY, THREATS, OR PROMISES.  EVEN
WHERE THERE WAS EXCESS AND ABUSE OF POWER ON THE PART OF OFFICERS, THE
STATE STILL WAS ENTITLED TO USE THE CONFESSION IF UPON EXAMINATION OF
THE WHOLE EVIDENCE IT WAS FOUND TO NEGATIVE THE VIEW THAT THE ACCUSED
HAD "SO LOST HIS FREEDOM OF ACTION THAT THE STATEMENTS MADE WERE NOT
HIS BUT WERE THE RESULT OF THE DEPRIVATION OF HIS FREE CHOICE TO ADMIT,
TO DENY, OR TO REFUSE TO ANSWER."  LISENBA V. CALIFORNIA, 314 U.S. 219,
241. 

IN DETERMINING THESE ISSUES OF FACT, RESPECT FOR THE SOVEREIGN
CHARACTER OF THE SEVERAL STATES ALWAYS HAS CONSTRAINED THIS COURT TO
GIVE GREAT WEIGHT TO FINDINGS OF FACT OF STATE COURTS.  WHILE WE HAVE
SOMETIMES GONE BACK OF STATE COURT DETERMINATIONS TO MAKE SURE WHETHER
THE GUARANTIES OF THE FOURTEENTH AMENDMENT HAVE OR HAVE NOT BEEN
VIOLATED, IN CLOSE CASES THE DECISIONS OF STATE COURTS HAVE OFTEN BEEN
SUFFICIENT TO TIP THE SCALES IN FAVOR OF AFFIRMANCE.  LISENBA V.
CALIFORNIA, SUPRA, 238, 239; BUCHALTER V. NEW YORK, 319 U.S. 427, 431;
CF. MILK WAGON DRIVERS UNION V. MEADOWMOOR DAIRIES, 312 U.S. 287, 294. 
AS WE READ THE PRESENT DECISION THE COURT IN EFFECT DECLINES TO APPLY
THESE WELL-ESTABLISHED PRINCIPLES.  INSTEAD, IT:  (1) SUBSTITUTES FOR
DETERMINATION ON CONFLICTING EVIDENCE THE QUESTION WHETHER THIS
CONFESSION WAS ACTUALLY PRODUCED BY COERCION, A PRESUMPTION THAT IT
WAS, ON A NEW DOCTRINE THAT EXAMINATION IN CUSTODY OF THIS DURATION IS
"INHERENTLY COERCIVE"; (2) IT MAKES THAT PRESUMPTION IRREBUTTABLE -
I.E., A RULE OF LAW - BECAUSE, WHILE IT GOES BACK OF THE STATE
DECISIONS TO FIND CERTAIN FACTS, IT REFUSES TO RESOLVE CONFLICTS IN
EVIDENCE TO DETERMINE WHETHER OTHER OF THE STATE'S PROOF IS SUFFICIENT
TO OVERCOME SUCH PRESUMPTION; AND, IN SO DOING, (3) IT SETS ASIDE THE
FINDINGS BY THE COURTS OF TENNESSEE THAT ON ALL THE FACTS THIS
CONFESSION DID NOT RESULT FROM COERCION, EITHER GIVING THOSE FINDINGS
NO WEIGHT OR REGARDING THEM AS IMMATERIAL. 

WE MUST BEAR IN MIND THAT THIS CASE DOES NOT COME HERE FROM A LOWER
FEDERAL COURT OVER WHOSE CONDUCT WE MAY ASSERT A GENERAL SUPERVISORY
POWER.  IF IT DID, WE SHOULD BE AT LIBERTY TO APPLY RULES AS TO THE
ADMISSIBILITY OF CONFESSIONS, BASED ON OUR OWN CONCEPTION OF
PERMISSIBLE PROCEDURE, AND IN WHICH WE MAY EMBODY RESTRICTIONS EVEN
GREATER THAN THOSE IMPOSED UPON THE STATES BY THE FOURTEENTH
AMENDMENT.  SEE BRAM V. UNITED STATES, 168 U.S. 532; WAN V. UNITED
STATES, 266 U.S. 1; MCNABB V. UNITED STATES, 318 U.S. 332, 341; UNITED
STATES V. MITCHELL, 322 U.S. 65.  BUT WE HAVE NO SUCH SUPERVISORY POWER
OVER STATE COURTS.  WE MAY NOT LAY DOWN RULES OF EVIDENCE FOR THEM NOR
REVISE THEIR DECISIONS MERELY BECAUSE WE FEEL MORE CONFIDENCE IN OUR
OWN WISDOM AND RECTITUDE.  WE HAVE NO POWER TO DISCIPLINE THE POLICE OR
LAW-ENFORCEMENT OFFICERS OF THE STATE OF TENNESSEE NOR TO REVERSE ITS
CONVICTIONS IN RETRIBUTION FOR CONDUCT WHICH WE MAY PERSONALLY
DISAPPROVE. 

THE BURDEN OF PROTECTING SOCIETY FROM MOST CRIMES AGAINST PERSONS AND
PROPERTY FALLS UPON THE STATE.  DIFFERENT STATES HAVE DIFFERENT CRIME
PROBLEMS AND SOME FREEDOM TO VARY PROCEDURES ACCORDING TO THEIR OWN
IDEAS.  HERE, A STATE WAS FORCED BY AN UNWITNESSED AND BAFFLING MURDER
TO VINDICATE ITS LAW AND PROTECT ITS SOCIETY.  TO NULLIFY ITS
CONVICTION IN THIS PARTICULAR CASE UPON A CONSIDERATION OF ALL THE
FACTS WOULD BE A DELICATE EXERCISE OF FEDERAL JUDICIAL POWER.  BUT TO
GO BEYOND THIS, AS THE COURT DOES TODAY, AND DIVINE IN THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT AN EXCLUSION OF CONFESSIONS ON AN
IRREBUTTABLE PRESUMPTION THAT CUSTODY AND EXAMINATION ARE "INHERENTLY
COERCIVE" IF OF SOME UNSPECIFIED DURATION WITHIN THIRTY-SIX HOURS,
REQUIRES US TO MAKE MORE THAN A PASSING EXPRESSION OF OUR DOUBTS AND
DISAGREEMENTS. 

I. 

THE CLAIM OF A SUSPECT TO IMMUNITY FROM QUESTIONING CREATES ONE OF
THE MOST VEXING PROBLEMS IN CRIMINAL LAW - THAT BRANCH OF THE LAW WHICH
DOES THE COURTS AND THE LEGAL PROFESSION LEAST CREDIT.  THE
CONSEQUENCES UPON SOCIETY OF LIMITING EXAMINATION OF PERSONS OUT OF
COURT CANNOT FAIRLY BE APPRAISED WITHOUT RECOGNITION OF THE ADVANTAGE
CRIMINALS ALREADY ENJOY IN IMMUNITY FROM COMPULSORY EXAMINATION IN
COURT.  OF THIS LATTER MR. JUSTICE CARDOZO, FOR AN ALL BUT UNANIMOUS
COURT, SAID:  "THIS TOO MIGHT BE LOST, AND JUSTICE STILL BE DONE. 
INDEED, TODAY AS IN THE PAST THERE ARE STUDENTS OF OUR PENAL SYSTEM WHO
LOOK UPON THE IMMUNITY AS A MISCHIEF RATHER THAN A BENEFIT, AND WHO
WOULD LIMIT ITS SCOPE, OR DESTROY IT ALTOGETHER.  NO DOUBT THERE WOULD
REMAIN THE NEED TO GIVE PROTECTION AGAINST TORTURE, PHYSICAL OR
MENTAL."  PALKO V. CONNECTICUT, 302 U.S. 319, 325-26. 

THIS COURT NEVER YET HAS HELD THAT THE CONSTITUTION DENIES A STATE
THE RIGHT TO USE A CONFESSION JUST BECAUSE THE CONFESSOR WAS QUESTIONED
IN CUSTODY WHERE IT DID NOT ALSO FIND OTHER CIRCUMSTANCES THAT DEPRIVED
HIM OF A "FREE CHOICE TO ADMIT, TO DENY, OR TO REFUSE TO ANSWER." 
LISENBA V. CALIFORNIA, 314 U.S. 219, 241.  THE CONSTITUTION REQUIRES
THAT A CONVICTION REST ON A FAIR TRIAL.  FORCED CONFESSIONS ARE RULED
OUT OF A FAIR TRIAL.  THEY ARE RULED OUT BECAUSE THEY HAVE BEEN WRUNG
FROM A PRISONER BY MEASURES WHICH ARE OFFENSIVE TO CONCEPTS OF
FUNDAMENTAL FAIRNESS.  DIFFERENT COURTS HAVE USED DIFFERENT TERMS TO
EXPRESS THE TEST BY WHICH TO JUDGE THE INADMISSIBILITY OF A CONFESSION,
SUCH AS "FORCED," "COERCED," "INVOLUNTARY," "EXTORTED," "LOSS OF
FREEDOM OF WILL."  BUT ALWAYS WHERE WE HAVE PROFESSED TO SPEAK WITH THE
VOICE OF THE DUE PROCESS CLAUSE, THE TEST, IN WHATEVER WORDS STATED,
HAS BEEN APPLIED TO THE PARTICULAR CONFESSOR AT THE TIME OF
CONFESSION. 

IT IS FOR THIS REASON THAT AMERICAN COURTS HOLD ALMOST UNIVERSALLY
AND VERY PROPERLY THAT A CONFESSION OBTAINED DURING OR SHORTLY AFTER
THE CONFESSOR HAS BEEN SUBJECTED TO BRUTALITY, TORTURE, BEATING,
STARVATION, OR PHYSICAL PAIN OF ANY KIND IS PRIMA FACIE "INVOLUNTARY." 
THE EFFECT OF THREATS ALONE MAY DEPEND MORE ON INDIVIDUAL
SUSCEPTIBILITY TO FEAR.  BUT MEN ARE SO CONSTITUTED THAT MANY WILL RISK
THE POSTPONED CONSEQUENCES OF YIELDING TO A DEMAND FOR A CONFESSION IN
ORDER TO BE RID OF PRESENT OR IMMINENT PHYSICAL SUFFERING.  ACTUAL OR
THREATENED VIOLENCE HAVE NO PLACE IN ELICITING TRUTH AND IT IS FAIR TO
ASSUME THAT NO OFFICER OF THE LAW WILL RESORT TO CRUELTY IF TRUTH IS
WHAT HE IS SEEKING.  WE NEED NOT BE TOO EXACTING ABOUT PROOF OF THE
EFFECTS OF SUCH VIOLENCE ON THE INDIVIDUAL INVOLVED, FOR THEIR EFFECT
ON THE HUMAN PERSONALITY IS INVARIABLY AND SERIOUSLY DEMORALIZING. 

WHEN, HOWEVER, WE CONSIDER A CONFESSION OBTAINED BY QUESTIONING, EVEN
IF PERSISTENT AND PROLONGED, WE ARE IN A DIFFERENT FIELD. 
INTERROGATION PER SE IS NOT, WHILE VIOLENCE PER SE IS, AN OUTLAW. 
QUESTIONING IS AN INDISPENSABLE INSTRUMENTALITY OF JUSTICE.  IT MAY BE
ABUSED, OF COURSE, AS CROSS-EXAMINATION IN COURT MAY BE ABUSED, BUT THE
PRINCIPLES BY WHICH WE MAY ADJUDGE WHEN IT PASSES CONSTITUTIONAL LIMITS
ARE QUITE DIFFERENT FROM THOSE THAT CONDEMN POLICE BRUTALITY, AND ARE
FAR MORE DIFFICULT TO APPLY.  AND THEY CALL FOR A MORE RESPONSIBLE AND
CAUTIOUS EXERCISE OF OUR OFFICE.  FOR WE MAY ERR ON THE SIDE OF
HOSTILITY TO VIOLENCE WITHOUT DOING INJURY TO LEGITIMATE PROSECUTION OF
CRIME; WE CANNOT READ AN UNDISCRIMINATING HOSTILITY TO MERE
INTERROGATION INTO THE CONSTITUTION WITHOUT UNDULY FETTERING THE STATES
IN PROTECTING SOCIETY FROM THE CRIMINAL. 

IT PROBABLY IS THE NORMAL INSTINCT TO DENY AND CONCEAL ANY SHAMEFUL
OR GUILTY ACT.  EVEN A "VOLUNTARY CONFESSION" IS NOT LIKELY TO BE THE
PRODUCT OF THE SAME MOTIVES WITH WHICH ONE MAY VOLUNTEER INFORMATION
THAT DOES NOT INCRIMINATE OR CONCERN HIM.  THE TERM "VOLUNTARY"
CONFESSION DOES NOT MEAN VOLUNTARY IN THE SENSE OF A CONFESSION TO A
PRIEST MERELY TO RID ONE'S SOUL OF A SENSE OF GUILT.  "VOLUNTARY
CONFESSIONS" IN CRIMINAL LAW ARE THE PRODUCT OF CALCULATIONS OF A
DIFFERENT ORDER, AND USUALLY PROCEED FROM A BELIEF THAT FURTHER DENIAL
IS USELESS AND PERHAPS PREJUDICIAL.  TO SPEAK OF ANY CONFESSIONS OF
CRIME MADE AFTER ARREST AS BEING "VOLUNTARY" OR "UNCOERCED" IS SOMEWHAT
INACCURATE, ALTHOUGH TRADITIONAL. 

A CONFESSION IS WHOLLY AND INCONTESTABLY VOLUNTARY ONLY IF A GUILTY
PERSON GIVES HIMSELF UP TO THE LAW AND BECOMES HIS OWN ACCUSER.  THE
COURT BASES ITS DECISION ON THE PREMISE THAT CUSTODY AND EXAMINATION OF
A PRISONER FOR THIRTY-SIX HOURS IS "INHERENTLY COERCIVE."  OF COURSE IT
IS.  AND SO IS CUSTODY AND EXAMINATION FOR ONE HOUR.  ARREST ITSELF IS
INHERENTLY COERCIVE, AND SO IS DETENTION.  WHEN NOT JUSTIFIED,
INFLICTION OF SUCH INDIGNITIES UPON THE PERSON IS ACTIONABLE AS A
TORT.  OF COURSE SUCH ACTS PUT PRESSURE UPON THE PRISONER TO ANSWER
QUESTIONS, TO ANSWER THEM TRUTHFULLY, AND TO CONFESS IF GUILTY. 

BUT DOES THE CONSTITUTION PROHIBIT USE OF ALL CONFESSIONS MADE AFTER
ARREST BECAUSE QUESTIONING, WHILE ONE IS DEPRIVED OF FREEDOM, IS
"INHERENTLY COERCIVE"?  THE COURT DOES NOT QUITE SAY SO, BUT IT IS
MOVING FAR AND FAST IN THAT DIRECTION.  THE STEP IT NOW TAKES IS TO
HOLD THIS CONFESSION INADMISSIBLE BECAUSE OF THE TIME TAKEN IN GETTING
IT. 

THE DURATION AND INTENSITY OF AN EXAMINATION OR INQUISITION ALWAYS
HAVE BEEN REGARDED AS ONE OF THE RELEVANT AND IMPORTANT CONSIDERATIONS
IN ESTIMATING ITS EFFECT ON THE WILL OF THE INDIVIDUAL INVOLVED. 
THIRTY-SIX HOURS IS A LONG STRETCH OF QUESTIONING.  THAT THE INQUIRY
WAS PROLONGED AND PERSISTENT IS A FACTOR THAT IN ANY CALCULATION OF ITS
EFFECT ON ASHCRAFT WOULD COUNT HEAVILY AGAINST THE CONFESSION.  BUT
SOME MEN WOULD WITHSTAND FOR DAYS PRESSURES THAT WOULD DESTROY THE WILL
OF ANOTHER IN HOURS.  ALWAYS HERETOFORE THE ULTIMATE QUESTION HAS BEEN
WHETHER THE CONFESSOR WAS IN POSSESSION OF HIS OWN WILL AND SELF
CONTROL AT THE TIME OF CONFESSION.  FOR ITS BEARING ON THIS QUESTION
THE COURT ALWAYS HAS CONSIDERED THE CONFESSOR'S STRENGTH OR WEAKNESS,
WHETHER HE WAS EDUCATED OR ILLITERATE, INTELLIGENT OR MORONIC, WELL OR
ILL, NEGRO OR WHITE. 

BUT THE COURT REFUSES IN THIS CASE TO BE GUIDED BY THIS TEST.  IT
REJECTS THE FINDING OF THE TENNESSEE COURTS AND SAYS IT MUST MAKE AN
"INDEPENDENT EXAMINATION" OF THE CIRCUMSTANCES.  THEN IT SAYS THAT IT
WILL NOT "RESOLVE ANY OF THE DISPUTED QUESTIONS OF FACT" RELATING TO
THE CIRCUMSTANCES OF THE CONFESSION.  INSTEAD OF FINDING AS A FACT THAT
ASHCRAFT'S FREEDOM OF WILL WAS IMPAIRED, IT SUBSTITUTES THE DOCTRINE
THAT THE SITUATION WAS "INHERENTLY COERCIVE."  IT THUS REACHES ON A
PART OF THE EVIDENCE IN THE CASE A CONCLUSION WHICH I SHALL DEMONSTRATE
IT COULD NOT PROPERLY REACH ON ALL THE EVIDENCE.  AND IT REFUSES TO
RESOLVE THE CONFLICTS IN THE OTHER EVIDENCE TO DETERMINE WHETHER IT
REBUTS THE PRESUMPTION THUS REACHED THAT THE CONFESSION IS A COERCED
ONE. 

IF THE CONSTITUTIONAL ADMISSIBILITY OF A CONFESSION IS NO LONGER TO
BE MEASURED BY THE MENTAL STATE OF THE INDIVIDUAL CONFESSOR BUT BY A
GENERAL DOCTRINE DEPENDENT ON THE CLOCK, IT SHOULD BE CAPABLE OF
STATEMENT IN DEFINITE TERMS.  IF THIRTY-SIX HOURS IS MORE THAN IS
PERMISSIBLE, WHAT ABOUT 24?  OR 12?  OR 6?  OR 1?  ALL ARE "INHERENTLY
COERCIVE."  OF COURSE QUESTIONS OF LAW LIKE THIS OFTEN TURN ON MATTERS
OF DEGREE.  BUT ARE NOT THE STATES ENTITLED TO KNOW, IF THIS COURT IS
ABLE TO STATE, WHAT THE CONSIDERATIONS ARE WHICH MAKE ANY PARTICULAR
DEGREE DECISIVE?  HOW ELSE MAY STATE COURTS APPLY OUR TESTS? 

THE IMPORTANCE OF DEFINING THESE NEW CONSTITUTIONAL STANDARDS OF
ADMISSIBILITY OF CONFESSIONS IS EMPHASIZED BY THE DECISION TO RETURN
THE COMPANION CASE OF WARE TO THE SUPREME COURT OF TENNESSEE FOR
RECONSIDERATION "IN THE LIGHT OF OUR RULING AS TO ASHCRAFT."  EXCEPT
FOR WARE'S OWN TESTIMONY, ALL OF THE EVIDENCE IS THAT WHEN HE
CONFRONTED ASHCRAFT IN CUSTODY WARE CONFESSED IMMEDIATELY, VOLUNTARILY,
AND ALMOST SPONTANEOUSLY.  BUT HE HAD BEEN ARRESTED, TAKEN FROM BED
INTO CUSTODY, AND DETAINED AND QUESTIONED.  DOES THE DOCTRINE OF
INHERENT COERCIVENESS CONDEMN THE WARE CONFESSION?  SHOULD THE
TENNESSEE COURT DECIDE WHETHER WARE, OBVIOUSLY A MUCH WEAKER CHARACTER
THAN ASHCRAFT, WAS ACTUALLY COERCED INTO CONFESSING?  IT ALREADY HAS
DECIDED THAT QUESTION AND THIS COURT DOES NOT HOLD THE FACT DETERMINED
WRONGLY.  WARE'S CASE IS PROPERLY IN THIS COURT.  WHY SHOULD NOT THIS
COURT DECIDE WARE'S CASE ON THE MERITS AND THUS TEST AND EXPOUND ITS
NOVEL RULING AS APPLIED TO A DIFFERENT SET OF CIRCUMSTANCES? 

NO ONE CAN REGARD THE RULE OF EXCLUSION DEPENDENT ON THE STATE OF THE
INDIVIDUAL'S WILL AS AN EASY ONE TO APPLY.  IT LEADS TO CONTROVERSY,
SPECULATION, AND VARIATIONS IN APPLICATION.  TO ELIMINATE THESE EVILS
BY ELIMINATING ALL CONFESSIONS MADE AFTER INTERROGATION WHILE IN
CUSTODY IS A DRASTIC ALTERNATIVE, BUT IT IS THE LOGICAL CONSEQUENCE OF
TODAY'S RULING, AS ITS APPLICATION TO THE FACTS OF ASHCRAFT'S CASE WILL
SHOW. 

II. 

APART FROM ASHCRAFT'S UNCORROBORATED TESTIMONY, WHICH THE TENNESSEE
COURTS REFUSED TO BELIEVE, THERE IS MUCH EVIDENCE IN THIS RECORD FROM
PERSONS WHOM THEY DID BELIEVE AND WERE JUSTIFIED IN BELIEVING.  THIS
EVIDENCE SHOWS THAT DESPITE THE "INHERENT COERCIVENESS" OF THE
CIRCUMSTANCES OF HIS EXAMINATION, THE CONFESSION WHEN MADE WAS
DELIBERATE, FREE, AND VOLUNTARY IN THE SENSE IN WHICH THAT TERM IS USED
IN CRIMINAL LAW.  THIS COURT COULD NOT, IN OUR OPINION, HOLD THIS
CONFESSION AN INVOLUNTARY ONE EXCEPT BY SUBSTITUTING ITS PRESUMPTION IN
PLACE OF ANALYSIS OF THE EVIDENCE AND REFUSING TO WEIGH THE EVIDENCE
EVEN IN REBUTTAL OF ITS PRESUMPTION. 

AS IN MOST SUCH CASES, WE START WITH SOME ADMITTED FACTS.  IN THE
EARLY MORNING MRS. ASHCRAFT LEFT HER HOME IN AN AUTOMOBILE TO VISIT
RELATIVES.  SHE WAS FOUND MURDERED.  SHE HAD NOT BEEN ROBBED NOR
RAVISHED, ALTHOUGH AN EFFORT HAD BEEN MADE TO GIVE THE CRIME AN
APPEARANCE OF ROBBERY.  THE OFFICERS KNEW OF NO OTHER MOTIVE FOR THE
KILLING AND NATURALLY TURNED TO HER HUSBAND FOR INFORMATION. 

ON THE AFTERNOON OF THE CRIME, THURSDAY, JUNE 5, 1941, THEY TOOK
ASHCRAFT TO THE MORGUE TO IDENTIFY THE BODY, AND TO THE COUNTY JAIL,
WHERE HE WAS KEPT AND INTERVIEWED UNTIL 2:00 A.M.  HE MAKES NO
COMPLAINT OF HIS TREATMENT AT THIS TIME.  IN THIS AND SEVERAL LATER
INTERVIEWS HE MADE A NUMBER OF STATEMENTS WITH REFERENCE TO THE
CONDITION OF THE CAR, AND AS TO MRS. ASHCRAFT'S HAVING TAKEN A CERTAIN
DRUG, AND AS TO MONEY WHICH SHE WAS ACCUSTOMED TO CARRY ON HER PERSON,
WHICH FURTHER INVESTIGATION INDICATED TO BE UNTRUE.  STILL ASHCRAFT WAS
NOT ARRESTED.  HE PROFESSED TO BE WILLING TO ASSIST IN IDENTIFYING THE
KILLER.  AT LAST, ON SATURDAY EVENING, JUNE 14, AN OFFICER BROUGHT
ASHCRAFT TO THE JAIL FOR FURTHER QUESTIONING.  HE WAS TAKEN TO A ROOM
ON THE FIFTH FLOOR AND QUESTIONED INTERMITTENTLY BY SEVERAL OFFICERS
OVER A PERIOD OF ABOUT THIRTY-SIX HOURS.    THERE ARE TWO VERSIONS AS
TO WHAT HAPPENED DURING THIS PERIOD OF QUESTIONING.  ACCORDING TO THE
VERSION OF THE OFFICERS, WHICH WAS ACCEPTED BY THE COURT WHICH SAW THE
WITNESSES, WHAT HAPPENED?  ON SATURDAY EVENING ASHCRAFT WAS TAKEN TO
THE JAIL, WHERE HE WAS QUESTIONED BY MR. BECKER AND MR. BATTLE.  BECKER
IS IN THE INTELLIGENCE SERVICE OF THE UNITED STATES ARMY AT THE PRESENT
TIME AND BEFORE THAT WAS IN CHARGE OF THE HOMICIDE BUREAU OF THE
SHERIFF'S OFFICE OF SHELBY COUNTY, TENNESSEE.  BATTLE HAS FOR EIGHT
YEARS BEEN AN ASSISTANT ATTORNEY GENERAL OF THE COUNTY.  THEY BEGAN
QUESTIONING ASHCRAFT ABOUT 7:00 P.M.  THEY RECOUNTED VARIOUS STATEMENTS
OF HIS WHICH HAD PROVED UNTRUE.  ABOUT 11:00 O'CLOCK ASHCRAFT SAID HE
REALIZED THE CIRCUMSTANCES ALL POINTED TO HIM AND THAT HE COULD NOT
EXPLAIN THE CIRCUMSTANCES.  THEY THEN ACCUSED HIM OF THE MURDER, BUT HE
DENIED IT.  ABOUT 3:00 A.M. BECKER AND BATTLE RETIRED AND LEFT ASHCRAFT
IN CHARGE OF EZZELL, A SPECIAL INVESTIGATOR CONNECTED WITH THE ATTORNEY
GENERAL'S OFFICE.  HE QUESTIONED ASHCRAFT AND DISCUSSED THE CRIME WITH
HIM UNTIL ABOUT 7:00 ON SUNDAY MORNING.  BECKER AND BATTLE THEN
RETURNED AND INTERVIEWED HIM INTERMITTENTLY UNTIL ABOUT NOON, WHEN
EZZELL RETURNED AND REMAINED UNTIL ABOUT 5:00.  BECKER THEN RETURNED,
AND ABOUT 11:00 O'CLOCK SUNDAY NIGHT ASHCRAFT EXPRESSED A DESIRE TO
TALK WITH EZZELL.  EZZELL WAS SENT FOR AND ASHCRAFT TOLD HIM HE WANTED
TO TELL HIM THE TRUTH.  HE SAID, "MR. EZZELL, A NEGRO KILLED MY WIFE." 
EZZELL ASKED THE NEGRO'S NAME, AND ASHCRAFT SAID, "TOM WARE."  UP TO
THIS TIME WARE HAD NOT BEEN SUSPECTED, NOR HAD HIS NAME BEEN
MENTIONED.  ASHCRAFT EXPLAINED THAT HE DID NOT TELL THE OFFICERS BEFORE
BECAUSE "I WAS SCARED; THE NEGRO SAID HE WOULD BURN MY HOUSE DOWN IF I
TOLD THE LAW." 

THEREUPON BECKER, BATTLE, EZZELL, AND MR. JAYROE, CONNECTED WITH THE
SHERIFF'S OFFICE, TOOK ASHCRAFT IN A CAR AND FOUND WARE.  WHEN
QUESTIONED AT THE JAIL, WARE TURNED TO ASHCRAFT AND SAID IN SUBSTANCE
THAT HE HAD TOLD ASHCRAFT WHEN THIS THING HAPPENED THAT HE DID NOT
INTEND TO TAKE THE ENTIRE BLAME.  THE OFFICERS THEREUPON TURNED THEIR
ATTENTION TO WARE.  HE PROMPTLY ADMITTED THE KILLING AND SAID ASHCRAFT
HIRED HIM TO DO IT.  WALDAUER, THE COURT REPORTER, WAS CALLED TO TAKE
DOWN THIS CONFESSION, AND COMPLETED HIS TRANSCRIPT AT ABOUT 5:40 A.M.
HE READ IT TO WARE AND TOLD HIM HE DID NOT HAVE TO SIGN IT UNLESS HE SO
CHOSE.  WARE MADE HIS MARK UPON IT AND SWORE TO IT BEFORE WALDAUER AS A
NOTARY PUBLIC.  A COPY WAS GIVEN TO ASHCRAFT, AND HE THEN ADMITTED THAT
HE HAD HIRED WARE TO KILL HIS WIFE.  HE WAS GIVEN BREAKFAST AND THEN IN
RESPONSE TO QUESTIONS MADE A STATEMENT WHICH WAS TAKEN DOWN BY THE
COURT REPORTER, WALDAUER.  IT WAS TRANSCRIBED, BUT ASHCRAFT DECLINED TO
SIGN IT, SAYING THAT HE WANTED HIS LAWYER TO SEE IT BEFORE HE SIGNED
IT.  NO EFFORT WAS MADE TO COMPEL HIM TO SIGN THE CONFESSION.  HOWEVER,
TWO BUSINESS MEN OF MEMPHIS, MR. CASTLE, VICE PRESIDENT OF A BANK, AND
MR. PIDGEON, PRESIDENT OF THE COCA-COLA BOTTLING COMPANY, WERE CALLED
IN.  BOTH TESTIFIED THAT ASHCRAFT IN THEIR PRESENCE ASSERTED THAT THE
TRANSCRIPT WAS CORRECT BUT THAT HE DECLINED TO SIGN IT.  THE OFFICERS
ALSO CALLED DR. MCQUISTON TO THE JAIL TO MAKE A PHYSICAL EXAMINATION OF
BOTH ASHCRAFT AND WARE.  HE HAD PRACTICED MEDICINE IN MEMPHIS FOR
TWENTY-EIGHT YEARS AND BOTH MR. AND MRS. ASHCRAFT HAD BEEN HIS PATIENTS
FOR SOMETHING LIKE FIVE YEARS.  IN THE PRESENCE OF THIS FRIENDLY DOCTOR
ASHCRAFT MIGHT HAVE COMPLAINED OF HIS TREATMENT AND AVOWED HIS
INNOCENCE.  THE DOCTOR TESTIFIED, HOWEVER, THAT ASHCRAFT SAID HE HAD
BEEN TREATED ALL RIGHT, THAT HE MADE NO COMPLAINT ABOUT HIS EYES, AND
THAT THEY WERE NOT BLOODSHOT.  THE DOCTOR MADE A PHYSICAL EXAMINATION,
AND SAYS ASHCRAFT APPEARED NORMAL.  HE FURTHER TESTIFIED AS TO
ASHCRAFT, "WELL, SIR, HE SAID HE HAD NOT BEEN ABLE TO GET ALONG WITH
HIS WIFE FOR SOME TIME; THAT HER HEALTH HAD BEEN BAD; THAT HE HAD
OFFERED HER A PROPERTY SETTLEMENT, AND THAT SHE MIGHT GO HER WAY AND HE
HIS WAY; AND HE ALSO STATED THAT HE OFFERED THIS COLORED MAN, WARE, A
SUM OF MONEY TO MAKE AWAY WITH HIS WIFE."  FN1  THE DOCTOR SAYS THAT
THAT STATEMENT WAS ENTIRELY VOLUNTARY.  NO MATTER WHAT PRESSURE HAD
BEEN PUT ON ASHCRAFT BEFORE, THE COURTS BELOW COULD REASONABLY BELIEVE
THAT HE MADE THIS STATEMENT VOLUNTARILY TO A MAN OF WHOM HE HAD NO FEAR
AND WHO KNEW HIS FAMILY RELATIONS. 

ASHCRAFT'S STORY OF TORTURE COULD ONLY BE ACCEPTED BY DISBELIEVING
SUCH CREDIBLE AND UNIMPEACHED CONTRADICTION.  ASHCRAFT TESTIFIED THAT
HE WAS REFUSED FOOD, AND WAS NOT ALLOWED TO GO TO THE LAVATORY, AND WAS
DENIED EVEN A DRINK OF WATER.  OTHER TESTIMONY IS THAT ON SATURDAY
NIGHT HE WAS BROUGHT A SANDWICH AND COFFEE ABOUT MIDNIGHT; THAT HE
DRANK THE COFFEE BUT REFUSED THE SANDWICH; THAT ON SUNDAY MORNING HE
WAS GIVEN A BREAKFAST AND WAS FED AGAIN ABOUT NOON A PLATE LUNCH
CONSISTING OF MEAT AND VEGETABLES AND COFFEE.  BOTH WALDAUER, THE
REPORTER, AND DR. MCQUISTON TESTIFIED THAT THEY SAW BREAKFAST SERVED TO
ASHCRAFT THE NEXT MORNING BEFORE THE STATEMENT TAKEN DOWN BY WALDAUER. 
ASHCRAFT CLAIMS HE WAS THREATENED AND THAT A CIGARETTE WAS SLAPPED OUT
OF HIS MOUTH.  THIS IS ALL DENIED. 

THIS COURT REJECTS THE TESTIMONY OF THE OFFICERS AND DISINTERESTED
WITNESSES IN THIS CASE THAT THE CONFESSION WAS VOLUNTARY NOT BECAUSE IT
LACKED PROBATIVE VALUE IN ITSELF NOR BECAUSE THE WITNESSES WERE SELF
CONTRADICTORY OR WERE IMPEACHED.  ON THE CONTRARY, IT IS IMPUGNED ONLY
ON GROUNDS SUCH AS THAT SUCH DISPUTES "ARE AN INESCAPABLE CONSEQUENCE
OF SECRET INQUISITORIAL PRACTICES."  WE INFER FROM THIS THAT SINCE A
PRISONER'S UNSUPPORTED WORD OFTEN CONFLICTS WITH THAT OF THE OFFICERS,
THE OFFICER'S TESTIMONY FOR CONSTITUTIONAL PURPOSES IS ALWAYS PRIMA
FACIE FALSE.  WE KNOW THAT POLICE STANDARDS OFTEN LEAVE MUCH TO BE
DESIRED, BUT WE ARE NOT READY TO BELIEVE THAT THE DEMOCRATIC PROCESS
BRINGS TO OFFICE MEN GENERALLY LESS BELIEVABLE THAN THE AVERAGE OF
THOSE ACCUSED OF CRIME. 

REFERENCE ALSO IS MADE TO THE FACT THAT WHEN PETITIONER WAS
QUESTIONED INVESTIGATION HAD FAILED "TO UNEARTH ONE SINGLE TANGIBLE
CLUE POINTING TO HIS GUILT."  WE CANNOT SEE THE RELEVANCE OF SUCH
CIRCUMSTANCES ON THE QUESTION OF THE VOLUNTARY OR INVOLUNTARY CHARACTER
OF HIS STATEMENTS TO THE OFFICERS.  IS THE SUGGESTION THAT IF THEY HAD
PROBABLE CLEWS TO HIS GUILT, THEIR QUESTIONING OF HIM WOULD HAVE BEEN
BETTER JUSTIFIED? 

THIS QUESTIONING IS CHARACTERIZED AS A "SECRET INQUISITION," INVOKING
ALL OF THE HORRENDOUS HISTORICAL ASSOCIATIONS OF THOSE WORDS. 
CERTAINLY THE INQUIRY WAS PARTICIPATED IN BY A GOOD MANY PERSONS, AND
WE DO NOT SEE HOW IT COULD HAVE BEEN MUCH LESS "SECRET" UNLESS THE
PRESS SHOULD HAVE BEEN CALLED IN.  OF COURSE, ANY QUESTIONING MAY BE
CHARACTERIZED AS AN "INQUISITION," BUT THE USE OF SUCH
CHARACTERIZATIONS IS NO SUBSTITUTE FOR THE DETACHED AND JUDICIAL
CONSIDERATION THAT THE COURT BELOW GAVE TO THE CASE. 

WE CONCLUDE THAT EVEN GOING BEHIND THE STATE COURT DECISIONS INTO THE
FACTS, NO INDEPENDENT JUDGMENT ON THE WHOLE EVIDENCE THAT ASHCRAFT'S
CONFESSION WAS IN FACT COERCED IS POSSIBLE.  AND AGAINST THIS
BACKGROUND OF FACTS THE EXTREME CHARACTER OF THE COURT'S RULING BECOMES
APPARENT. 

I AM NOT SURE WHETHER THE COURT DENIES THE STATE ALL RIGHT TO ARREST
AND QUESTION THE HUSBAND OF THE SLAIN WOMAN.  NO INVESTIGATION WORTHY
OF THE NAME COULD FAIL TO EXAMINE HIM.  OF ALL PERSONS, HE WAS MOST
LIKELY TO KNOW WHETHER SHE HAD ENEMIES OR RIVALS.  WOULD NOT THE STATE
HAVE A CONSTITUTIONAL RIGHT, WHETHER HE WAS ACCUSED OR NOT, TO ARREST
AND DETAIN HIM AS A MATERIAL WITNESS?  IF IT HAS THE RIGHT TO DETAIN
ONE AS A WITNESS, PRESUMABLY IT HAS THE RIGHT TO EXAMINE HIM. 

COULD THE STATE NOT CONFRONT ASHCRAFT WITH HIS FALSE STATEMENTS AND
ASK HIS EXPLANATION?  HE DID NOT THROW HIMSELF AT ANY TIME ON HIS
RIGHTS, REFUSE TO ANSWER, AND DEMAND COUNSEL, EVEN ACCORDING TO HIS OWN
TESTIMONY.  THE STRATEGY OF THE OFFICERS EVIDENTLY WAS TO KEEP HIM
TALKING, TO GIVE HIM PLENTY OF ROPE AND SEE IF HE WOULD NOT HANG
HIMSELF.  HE DOES NOT CLAIM TO HAVE MADE OBJECTION TO THIS.  INSTEAD HE
RELIED ON HIS WITS.  THE TIME CAME WHEN IT DAWNED ON HIM THAT HIS OWN
STORY BROUGHT HIM UNDER SUSPICION, AND THAT HE COULD NOT MEET IT.  MUST
THE OFFICERS STOP AT THIS POINT BECAUSE HE WAS COMING TO APPRECIATE THE
USELESSNESS OF DECEPTION? 

THEN HE BECAME DESPERATE AND ACCUSED THE NEGRO.  CERTAINLY FROM THIS
POINT THE STATE WAS JUSTIFIED IN HOLDING AND QUESTIONING HIM AS A
WITNESS, FOR HE CLAIMED TO KNOW THE KILLER.  THAT ACCUSATION BACKFIRED
AND ONLY TURNED UP A WITNESS AGAINST HIM.  HE HAD RUN OUT OF EXPEDIENTS
AND INVENTIONS; HE KNEW HE HAD LOST THE BATTLE OF WITS.  AFTER ALL,
HONESTY SEEMED TO BE THE BEST, EVEN IF THE LAST, POLICY.  HE CONFESSED
IN DETAIL. 

AT WHAT POINT IN ALL THIS INVESTIGATION DOES THE COURT HOLD THAT THE
CONSTITUTION COMMANDS THESE OFFICERS TO SEND ASHCRAFT ON HIS WAY AND
GIVE UP THE MURDER AS INSOLUBLE?  IF THE STATE IS DENIED THE RIGHT TO
APPLY ANY PRESSURE TO HIM WHICH IS "INHERENTLY COERCIVE" IT COULD
HARDLY DEPRIVE HIM OF HIS FREEDOM AT ALL.  I, TOO, DISLIKE TO THINK OF
ANY MAN, UNDER THE DISADVANTAGES AND INDIGNITIES OF DETENTION BEING
QUESTIONED ABOUT HIS PERSONAL LIFE FOR THIRTY-SIX HOURS OR FOR ONE
HOUR.  IN FACT, THERE IS MUCH IN OUR WHOLE SYSTEM OF PENOLOGY THAT
SEEMS ARCHAIC AND VINDICTIVE AND BADLY MANAGED.  EVERY PERSON IN THE
COMMUNITY, NO MATTER HOW INCONVENIENT OR EMBARRASSING, NO MATTER WHAT
RETALIATION IT EXPOSES HIM TO, MAY BE CALLED UPON TO TAKE THE WITNESS
STAND AND TELL ALL HE KNOWS ABOUT A CRIME - EXCEPT THE PERSON WHO KNOWS
MOST ABOUT IT.  EFFORTS OF PROSECUTORS TO COMPENSATE FOR THIS HANDICAP
BY VIOLENT OR BRUTAL TREATMENT OR THREATS WE CONDEMN AS PASSIONATELY
AND SINCERELY AS OTHER MEMBERS OF THE COURT.  BUT WE ARE NOT READY TO
SAY THAT THE PRESSURE TO DISCLOSE CRIME, INVOLVED IN DECENT DETENTION
AND LENGTHY EXAMINATION, ALTHOUGH WE ADMIT THEM TO BE "INHERENTLY
COERCIVE," ARE DENIED TO A STATE BY THE CONSTITUTION, WHERE THEY ARE
NOT PROVED TO HAVE PASSED THE INDIVIDUAL'S ABILITY TO RESIST AND TO
ADMIT, DENY, OR REFUSE TO ANSWER. 

                      III. 

THE COURT EITHER GIVES NO WEIGHT TO THE FINDINGS OF THE TENNESSEE
COURTS OR IT REGARDS THEIR INQUIRY AS TO THE EFFECT ON THE INDIVIDUALS
INVOLVED AS IMMATERIAL.  WE THINK IT WAS A MATERIAL INQUIRY AND THAT
RESPECT IS DUE TO THEIR CONCLUSION. 

THE SUPREME COURT OF TENNESSEE, WRITING IN THIS CASE, STATED THE LAW
OF THAT STATE BY WHICH IT REVIEWED AND AFFIRMED THE ACTION OF THE TRIAL
COURT.  IT SAID, "WHEN CONFESSIONS ARE OFFERED AS EVIDENCE, THEIR
COMPETENCY BECOMES A PRELIMINARY QUESTION TO BE DETERMINED BY THE
COURT.  THIS IMPOSES UPON THE PRESIDING JUDGE THE DUTY OF DECIDING THE
FACT WHETHER THE PARTY MAKING THE CONFESSION WAS INFLUENCED BY HOPE OR
FEAR.  THIS RULE IS SO WELL ESTABLISHED, THAT IF THE JUDGE ALLOW THE
JURY TO DETERMINE THE PRELIMINARY FACT, IT IS ERROR, FOR WHICH THE
JUDGMENT WILL BE REVERSED. 

"IN THE INSTANT CASE THE TRIAL JUDGE HEARD THE WITNESSES AS TO THEIR
CONFESSIONS OUT OF THE PRESENCE OF THE JURY, AND HE HELD THAT UNDER THE
FACTS HE COULD NOT SAY THAT THE CONFESSIONS WERE NOT VOLUNTARILY MADE
AND, THEREFORE, PERMITTED THEM TO GO TO THE JURY." 

THE RULE OF LAW THUS LAID DOWN COMPLIED WITH THE LAW AS THIS COURT
HAD SETTLED IT AT THE TIME OF TRIAL. 

THE TENNESSEE SUPREME COURT MADE A PAINSTAKING EXAMINATION OF THE
EVIDENCE IN THE LIGHT OF THE CLAIM THAT THE CONFESSIONS WERE COERCED. 
IT CONCLUDED THAT IT WAS "UNABLE TO SAY THAT THE CONFESSIONS WERE NOT
FREELY AND VOLUNTARILY MADE.  BOTH OF THE PLAINTIFFS IN ERROR HAVE HAD
A FAIR TRIAL AND WE DECLINE TO DISTURB THE CONVICTION." 

THAT COURT, IT IS CLEAR, RENDERS NO MERE LIP SERVICE TO THE
GUARANTIES OF THE CONSTITUTION.  IN OTHER CASES IT HAS SET ASIDE
CONVICTIONS BECAUSE CONFESSIONS USED AT TRIALS WERE FOUND TO HAVE BEEN
COERCED.  FN2  THERE IS NOT THE LEAST INDICATION THAT THE COURT WAS
PASSIONATE OR BIASED OR THAT THE RESULT DOES NOT REPRESENT THE HONEST
JUDGMENT OF A HIGH-MINDED COURT, SENSITIVE TO THESE PROBLEMS. 

A TRIAL JUDGE OUT OF HEARING OF THE JURY SAW AND HEARD ASHCRAFT AND
SAW AND HEARD THOSE WHOM ASHCRAFT ACCUSED OF COERCING HIM.  IN
DETERMINING A MATTER OF THIS KIND NO ONE CAN DENY THE GREAT ADVANTAGE
OF A COURT WHICH MAY SEE AND HEAR A MAN WHO CLAIMS THAT HIS WILL
SUCCUMBED AND THOSE WHO, IT IS CLAIMED, WERE SO OVERBEARING.  THE REAL
ISSUE IS STRENGTH OF CHARACTER, AND A FEW MINUTES' OBSERVATION OF THE
PARTIES IN THE COURTROOM IS MORE INFORMING THAN REAMS OF COLD RECORD. 
THERE IS NOT THE SLIGHTEST INDICATION THAT THE TRIAL JUDGE WAS
PREJUDICED OR INDIFFERENT TO THE PRISONER'S RIGHTS.  ASHCRAFT'S COUNSEL
MOVED TO EXCLUDE HIS CONFESSION "FOR THE REASON THAT THE STATEMENTS
CONTAINED THEREIN WERE NOT FREELY AND VOLUNTARILY MADE, NOR WERE THEY
FREE FROM DURESS AND RESTRAINT, BUT WERE SECURED BY COMPULSION.  ...  "
THE COURT SAID, "  ...  THE SOLE PROPOSITION, AS THE COURT SEES IT
FROM THIS TESTIMONY, IS THAT HE WAS CONFINED AND QUESTIONED FOR A
PERIOD OF APPROXIMATELY THIRTY-SIX HOURS.  I THINK COUNSEL CONCEDES
THAT IS PRACTICALLY THE MAIN GROUND UPON WHICH HE RESTS HIS MOTION. 
THERE WAS NO PHYSICAL VIOLENCE OFFERED TO THE DEFENDANT ASHCRAFT, AND
NONE CLAIMED."  HE OVERRULED THE MOTION AND RECEIVED THE CONFESSION. 
THIS COURT, NOT ONE OF WHOSE MEMBERS EVER SAW ASHCRAFT OR ANY ONE OF
THE STATE'S WITNESSES, OVERTURNS THE DECISION BY THE TRIAL JUDGE. 

MOREOVER, A JURY HELD ASHCRAFT'S STATEMENTS INCREDIBLE.  AFTER THE
TRIAL JUDGE, OUT OF THEIR PRESENCE, HEARD THE EVIDENCE AND DECIDED THE
CONFESSION WAS ADMISSIBLE, THE JURY HEARD THE EVIDENCE TO DECIDE
WHETHER THE CONFESSION SHOULD BE BELIEVED.  ASHCRAFT AGAIN TESTIFIED
AND SO DID ALL OF THE WITNESSES FOR THE STATE.  CONDUCT OF THE HEARING
BOTH BY THE JUDGE AND THE PROSECUTORS WAS ABOVE CRITICISM.  THE COURT
OBSERVES:  "IF, THEREFORE, THE QUESTION OF THE VOLUNTARINESS OF THE TWO
CONFESSIONS WAS ACTUALLY DECIDED AT ALL IT WAS BY THE JURY."  IS IT
SUGGESTED THAT A STATE CONSISTENTLY WITH THE CONSTITUTION MAY NOT LEAVE
THIS QUESTION TO THE SOLE DETERMINATION OF A JURY?  I HAD SUPPOSED THAT
THE CONSTITUTIONAL DUTY OF A STATE WHEN SUCH QUESTIONS OF FACT ARISE IS
TO FURNISH DUE PROCESS OF LAW FOR DECIDING THEM.  DOES NOT JURY TRIAL
MEET THIS TEST?  HERE TENNESSEE, AND I THINK VERY COMMENDABLY, PROVIDED
THE DOUBLE SAFEGUARDS OF A PRELIMINARY TRIAL BY THE JUDGE AND A FINAL
DETERMINATION BY THE JURY. 

THE COURT'S OPINION MAKES A CRITICAL REFERENCE TO THE CHARGE OF THE
TRIAL JUDGE.  HOWEVER, DILIGENT COUNSEL TOOK NO EXCEPTION TO THE PART
OF THE CHARGE QUOTED, MADE NO REQUEST FOR FURTHER INSTRUCTION ON THE
SUBJECT, AND ASSIGNED NO ERROR TO THE CHARGE.  EVEN IF WE THINK THE
CHARGE INADEQUATE, DOES THE INADEQUACY OF A CHARGE CONSTITUTE WANT OF
DUE PROCESS?  AND IF SO, DO WE REVIEW QUESTIONS AS TO THE CHARGE
ALTHOUGH COUNSEL FOR THE PETITIONER MADE NO OBJECTION DURING THE TRIAL
WHEN THE JUDGE COULD HAVE CORRECTED THE ERROR, BUT AFTER THE TRIAL WAS
OVER ASSIGNED IT AS ONE OF TWELVE REASONS FOR DEMANDING A NEW TRIAL? 

NO CONCLUSION THAT THIS CONFESSION WAS ACTUALLY COERCED CAN BE
REACHED ON THIS RECORD EXCEPT BY RELIANCE UPON THE UTTERLY
UNCORROBORATED STATEMENTS OF DEFENDANT ASHCRAFT.  HIS TESTIMONY DOES
NOT CARRY EVEN ORDINARY GUARANTIES OF TRUTHFULNESS, AND THE COURTS AND
JURY WERE NOT BOUND TO ACCEPT IT.  PERJURY IS A LIGHT OFFENSE COMPARED
TO MURDER AND THEY MAY WELL HAVE BELIEVED THAT ASHCRAFT WAS READY TO
RESORT TO A LESSER CRIME TO AVOID CONVICTION OF A GREATER ONE. 
FURTHERMORE, THE VERY GROUNDS ON WHICH THIS COURT NOW UPSETS HIS
CONVICTION ASHCRAFT REPUDIATED AT THE TRIAL.  HE ASSERTS THAT HE WAS
ABUSED, BUT HE DOES NOT TESTIFY AS THIS COURT HOLDS THAT IT HAD THE
EFFECT OF FORCING AN INVOLUNTARY CONFESSION FROM HIM.  ON THE CONTRARY,
HE FLATLY INSISTS THAT IT HAD NO SUCH EFFECT AND THAT HE NEVER DID
CONFESS AT ALL. 

AGAINST ASHCRAFT'S WORD THE STATE COURTS AND JURY ACCEPTED THE
TESTIMONY OF SEVERAL APPARENTLY DISINTERESTED WITNESSES OF HIGH
STANDING IN THEIR COMMUNITIES, IN ADDITION TO THAT OF THE ACCUSED
OFFICERS.  ONE OF THE WITNESSES TO ASHCRAFT'S ADMISSION OF GUILT WAS
HIS OWN FAMILY PHYSICIAN, TWO WERE DISINTERESTED BUSINESSMEN OF
SUBSTANCE AND STANDING, ANOTHER WAS AN EXPERIENCED COURT REPORTER WHO
HAD LONG HELD THIS POSITION OF CONSIDERABLE TRUST.  ANOTHER WAS A
MEMBER OF THE BAR.  CERTAINLY, THE STATE COURTS WERE NOT COMMITTING AN
OFFENSE AGAINST THE CONSTITUTION OF THE UNITED STATES IN REFUSING TO
BELIEVE THAT THIS WHOLE GROUP OF APPARENTLY REPUTABLE CITIZENS ENTERED
INTO A CONSPIRACY TO SWEAR A MURDER ONTO AN INNOCENT MAN, AGAINST WHOM
NOT ONE OF THEM IS SHOWN TO HAVE HAD A GRIEVANCE OR A GRUDGE. 

THIS IS NOT THE CASE OF AN IGNORANT AND UNREPRESENTED DEFENDANT WHO
HAS BEEN THE VICTIM OF PREJUDICE.  ASHCRAFT WAS A WHITE MAN OF GOOD
REPUTATION, GOOD POSITION, AND SUBSTANTIAL PROPERTY.  FOR A WEEK AFTER
THIS CRIME WAS DISCOVERED HE WAS NOT DETAINED, ALTHOUGH HIS STORIES TO
THE OFFICERS DID NOT HANG TOGETHER, BUT WAS AT LARGE, FREE TO CONSULT
HIS FRIENDS AND COUNSEL.  THERE WAS NO INDECENT HASTE, BUT ON THE
CONTRARY EVIDENT DELIBERATION, IN SUSPECTING AND ACCUSING HIM.  HE WAS
NOT SENTENCED TO DEATH, BUT FOR A TERM THAT PROBABLY MEANS LIFE.  HE
WAS DEFENDED BY RESOURCEFUL AND DILIGENT COUNSEL. 

THE USE OF THE DUE PROCESS CLAUSE TO DISABLE THE STATES IN PROTECTION
OF SOCIETY FROM CRIME IS QUITE AS DANGEROUS AND DELICATE A USE OF
FEDERAL JUDICIAL POWER AS TO USE IT TO DISABLE THEM FROM SOCIAL OR
ECONOMIC EXPERIMENTATION.  THE WARNING WORDS OF MR. JUSTICE HOLMES IN
HIS DISSENTING OPINION IN BALDWIN V. MISSOURI, 281 U.S. 586, 595, SEEM
TO US APPROPRIATE FOR REREADING NOW. 

FN1  THE OFFICERS HAD BEEN BAFFLED AS TO ANY MOTIVE FOR ASHCRAFT TO
MURDER HIS WIFE (WHO WAS HIS THIRD, TWO FORMER ONES HAVING BEEN
SEPARATED FROM HIM BY DIVORCE).  HE DISCLOSED IN HIS CONFESSION TO THEM
THAT HER SICKNESS HAD RESULTED IN A DEGREE OF IRRITABILITY WHICH HAD
MADE THEM INCOMPATIBLE AND RESULTED IN HIS SEXUAL FRUSTRATION. 

FN2  DEATHRIDGE V. STATE, 33 TENN. 75; STRADY V. STATE, 45 TENN. 300;
SELF V. STATE, 65 TENN. 244; CROSS V. STATE, 142 TENN. 510, 221 S.W.
489; ROUNDS V. STATE, 171 TENN. 511, 106 S.W.2D 212. 

MR. JUSTICE ROBERTS AND MR. JUSTICE FRANKFURTER JOIN IN THIS
OPINION. 
..END :
















U.S. V. ALLEGHENY COUNTY, 322 U.S. 174 


NO. 417.  ARGUED MARCH 1, 1944.  - DECIDED MAY 1, 1944.  - 347 PA. 191,
32 A.2D 236, REVERSED. 


PURSUANT TO A CONTRACT WITH THE UNITED STATES FOR THE PRODUCTION OF
ORDNANCE, A CONTRACTOR INSTALLED MACHINERY IN HIS MILL.  IN THE
ASSESSMENT OF THE MILL FOR STATE TAXES, THE VALUE OF THE MACHINERY WAS
INCLUDED.  HELD: 

1.  WHETHER THE MACHINERY WAS PROPERTY OF THE UNITED STATES WAS A
FEDERAL QUESTION.  P. 182. 

2.  TITLE TO THE MACHINERY WAS IN THE UNITED STATES.  P. 183. 

3.  THE STATE TAX LAW, SO FAR AS IT PURPORTS TO AUTHORIZE TAXATION OF
THE PROPERTY INTERESTS OF THE UNITED STATES IN THE MACHINERY IN THE
CONTRACTOR'S PLANT, OR TO USE THAT INTEREST TO TAX OR TO ENHANCE THE
TAX UPON THE GOVERNMENT'S BAILEE, VIOLATES THE FEDERAL CONSTITUTION. 
P. 192. 

4.  THE CLAIM IN THIS CASE THAT IMMUNITY FROM STATE TAXATION WAS
WAIVED IS UNSUPPORTED.  P. 189. 

(A)  A PROVISION OF THE CONTRACT REQUIRING THE CONTRACTOR TO ABIDE BY
THE "APPLICABLE" STATE LAW WAS INADEQUATE TO WAIVE FEDERAL IMMUNITY. 
P. 189. 

(B)  A PROVISION OF THE CONTRACT WHEREBY THE GOVERNMENT WAS OBLIGATED
TO PAY CERTAIN TAXES OF THE CONTRACTOR DID NOT OPERATE TO WAIVE
IMMUNITY.  P. 189. 

5.  THE INVALIDITY OF THE TAX WAS NOT DEPENDENT UPON WHERE ITS
ECONOMIC BURDEN FELL.  P. 189. 

6.  LOCAL GOVERNMENTS MAY NOT IMPOSE EITHER COMPENSATORY OR
RETALIATORY TAXES ON PROPERTY INTERESTS OF THE FEDERAL GOVERNMENT.  P.
190. 

7.  THE CONTRACTOR, UPON WHOM THE TAX WAS LAID, AND THE GOVERNMENT,
AS INTERVENOR, HAVING MADE TIMELY INSISTENCE IN THE PROCEEDING BELOW
THAT THE STATE TAX LAW AS APPLIED VIOLATED THE FEDERAL CONSTITUTION,
AND THE HIGHEST COURT OF THE STATE HAVING RENDERED FINAL JUDGMENT
AGAINST THE CLAIM OF FEDERAL RIGHT, THIS COURT HAS JURISDICTION ON
APPEAL.  JUD.  CODE SEC. 237(A).  P. 191. 

UNITED STATES ET AL. V. COUNTY OF ALLEGHENY. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

APPEAL FROM THE REVERSAL OF A JUDGMENT WHICH HELD A STATE TAX INVALID
UNDER THE FEDERAL CONSTITUTION. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON TO SOLVE ANOTHER OF THE RECURRING CONFLICTS
BETWEEN THE POWER TO TAX AND THE RIGHT TO BE FREE FROM TAXATION WHICH
ARE INEVITABLE WHERE TWO GOVERNMENTS FUNCTION AT THE SAME TIME AND IN
THE SAME TERRITORY.  IN ARGUING THE CASE OF MCCULLOCH V. MARYLAND,
LUTHER MARTIN, ATTORNEY GENERAL OF MARYLAND, HIMSELF A MEMBER OF THE
CONSTITUTIONAL CONVENTION, SAID, "THE WHOLE OF THIS SUBJECT OF TAXATION
IS FULL OF DIFFICULTIES, WHICH THE CONVENTION FOUND IT IMPOSSIBLE TO
SOLVE, IN A MANNER ENTIRELY SATISFACTORY.  THE FIRST ATTEMPT WAS TO
DIVIDE THE SUBJECTS OF TAXATION BETWEEN THE STATE AND THE NATIONAL
GOVERNMENT.  THIS BEING FOUND IMPRACTICABLE, OR INCONVENIENT, THE STATE
GOVERNMENTS SURRENDERED ALTOGETHER THEIR RIGHT TO TAX IMPORTS AND
EXPORTS, AND TONNAGE; GIVING THE AUTHORITY TO TAX ALL OTHER SUBJECTS TO
CONGRESS, BUT RESERVING TO THE STATES A CONCURRENT RIGHT TO TAX THE
SAME SUBJECTS TO AN UNLIMITED EXTENT.  THIS WAS ONE OF THE ANOMALIES OF
THE GOVERNMENT, THE EVILS OF WHICH MUST BE ENDURED, OR MITIGATED BY
DISCRETION AND MUTUAL FORBEARANCE."  MCCULLOCH V. MARYLAND, 4 WHEAT. 
316, 376.  WHERE DISCRETION AND FORBEARANCE HAVE FAILED, IT OFTEN HAS
FALLEN TO THIS COURT TO DETERMINE SPECIFIC CASES FOR WHICH THE
CONVENTION WAS UNABLE TO AGREE UPON A GENERAL RULE.  LOOKING BACKWARD
IT IS EASY TO SEE THAT THE LINE BETWEEN THE TAXABLE AND THE IMMUNE HAS
BEEN DRAWN BY AN UNSTEADY HAND. 

BUT SINCE 1819, WHEN CHIEF JUSTICE MARSHALL IN THE MCCULLOCH CASE
EXPOUNDED THE PRINCIPLE THAT PROPERTIES, FUNCTIONS, AND
INSTRUMENTALITIES OF THE FEDERATED GOVERNMENT ARE IMMUNE FROM TAXATION
BY ITS CONSTITUENT PARTS, THIS COURT NEVER HAS DEPARTED FROM THAT BASIC
DOCTRINE OR WAVERED IN ITS APPLICATION.  IN THE COURSE OF TIME IT HELD
THAT EVEN WITHOUT EXPLICIT CONGRESSIONAL ACTION IMMUNITIES HAD BECOME
COMMUNICATED TO THE INCOME OR PROPERTY OR TRANSACTIONS OF OTHERS
BECAUSE THEY IN SOME MANNER DEALT WITH OR ACTED FOR THE GOVERNMENT. 
FN1  IN RECENT YEARS THIS COURT HAS CURTAILED SHARPLY THE DOCTRINE OF
IMPLIED DELEGATED IMMUNITY.  FN2  BUT UNSHAKEN, RARELY QUESTIONED, AND
INDEED NOT QUESTIONED IN THIS CASE, IS THE PRINCIPLE THAT POSSESSIONS,
INSTITUTIONS, AND ACTIVITIES OF THE FEDERAL GOVERNMENT ITSELF IN THE
ABSENCE OF EXPRESS CONGRESSIONAL CONSENT ARE NOT SUBJECT TO ANY FORM OF
STATE TAXATION.  THE REAL CONTROVERSY HERE IS WHETHER, ESPECIALLY IN
VIEW OF RECENT DECISIONS, TAXING AUTHORITIES OF THE COMMONWEALTH OF
PENNSYLVANIA HAVE INFRINGED THIS ADMITTED IMMUNITY. 

MESTA MACHINE COMPANY, AN APPELLANT WITH THE UNITED STATES, EXISTS AS
A CORPORATION UNDER THE LAWS OF PENNSYLVANIA AND HAS A MANUFACTURING
PLANT IN THE COUNTY OF ALLEGHENY, OF THAT COMMONWEALTH, THE COUNTY
BEING APPELLEE HEREIN.  IT IS ENGAGED IN THE MANUFACTURE OF HEAVY
MACHINERY.  IN OCTOBER 1940, THE WAR DEPARTMENT DESIRED TO PRODUCE A
QUANTITY OF LARGE FIELD GUNS.  IT COULD HAVE ASSEMBLED AN ORGANIZATION,
CREATED A GOVERNMENT-OWNED CORPORATION, AND ERECTED A PLANT WHICH WOULD
HAVE BEEN WHOLLY TAX IMMUNE.  CLALLAM COUNTY V. UNITED STATES, 263 U.S.
341.  BUT FOR REASONS OF TIME AND POLICY IT CHOSE TO UTILIZE A GOING
CONCERN UNDER PRIVATE MANAGEMENT AND OWNERSHIP.  MESTA'S PLANT WAS NOT
EQUIPPED FOR THE MANUFACTURE OF ORDNANCE.  IT WAS AGREED THAT CERTAIN
ADDITIONAL EQUIPMENT SPECIALLY REQUIRED FOR THE WORK SHOULD BE
FURNISHED AT GOVERNMENT COST AND SHOULD REMAIN THE PROPERTY OF THE
UNITED STATES. 

THE BASIC ARRANGEMENT BETWEEN MESTA AND THE GOVERNMENT WAS PROVIDED
FOR BY THREE SEPARATE TITLES OF A SINGLE CONTRACT, MADE IN OCTOBER
1940.  A TITLE WAS DEVOTED TO EACH FEATURE OF THE ARRANGEMENT, BEING
GENERALLY:  PROCUREMENT OF GOVERNMENT-OWNED EQUIPMENT AT GOVERNMENT
COST; LEASE OF SUCH EQUIPMENT BY THE GOVERNMENT TO MESTA; AND MESTA'S
UNDERTAKING TO MAKE AND DELIVER THE GUNS AT A FIXED PRICE EACH.  IN
FEBRUARY 1941 A SUPPLEMENTAL CONTRACT WAS MADE. 

UNDER THE FIRST TITLE OF THE CONTRACT, MACHINERY WAS TO BE PROCURED
IN THREE POSSIBLE WAYS: MESTA, AS AN INDEPENDENT CONTRACTOR AND NOT AS
AGENT OF THE GOVERNMENT, COULD PURCHASE IT; MESTA COULD MANUFACTURE IT;
OR THE GOVERNMENT AT ITS OPTION COULD FURNISH ANY PART OF IT.  IN
CARRYING OUT THE AGREEMENT MESTA MANUFACTURED ONE MACHINE, THE
GOVERNMENT FURNISHED EIGHT GUN-BORING LATHES AND TWO RIFLING MACHINES
FROM ITS WATERVLIET ARSENAL, AND THE REST MESTA PURCHASED FROM OTHER
MACHINETOOL MANUFACTURERS.  THE MACHINERY BOUGHT OR BUILT BY MESTA WAS
INSPECTED AND ACCEPTED ON BEHALF OF THE UNITED STATES, WHICH THEREUPON
COMPENSATED MESTA AS AGREED.  THE CONTRACT PROVIDED THAT TITLE TO ALL
SUCH PROPERTY SHOULD VEST IN THE GOVERNMENT UPON DELIVERY AT THE SITE
OF WORK AND INSPECTION AND ACCEPTANCE. 

BY THE SECOND TITLE OF THE CONTRACT THE GOVERNMENT LEASED THIS
EQUIPMENT TO MESTA FOR THE PERIOD DURING WHICH GUNS ARE MANUFACTURED BY
IT UNDER THIS CONTRACT OR LATER SUPPLEMENTS.  AS RENTAL MESTA AGREED TO
PAY THE SUM OF ONE DOLLAR.  MESTA WAS PERMITTED TO USE THE EQUIPMENT
"FOR THE PURPOSE OF EXPEDITING THE MANUFACTURE OF GUNS" AND FOR NO
OTHER, WITHOUT CONSENT, EXCEPT THAT SUCH MACHINERY AS WAS "PURCHASED OR
FURNISHED TO SUPPLEMENT ITS EXISTING FACILITIES" MIGHT BE USED "FOR
GENERAL PURPOSES."  LIABILITY OF MESTA FOR LOSS, DAMAGE, OR DESTRUCTION
OF EQUIPMENT WAS "THAT OF A BAILEE UNDER A MUTUAL BENEFIT BAILMENT." 
MESTA COULD NOT REMOVE ANY OF IT WITHOUT PERMISSION, AND AT ALL TIMES
IT WAS ACCESSIBLE TO GOVERNMENT INSPECTION.  ON TERMINATION OF THE GUN
SUPPLY CONTRACT, UNLESS A STAND-BY CONTRACT WAS MADE, MESTA AGREED TO
REMOVE AND SHIP THE EQUIPMENT ACCORDING TO GOVERNMENT DIRECTIONS, IN
GOOD CONDITION SUBJECT TO FAIR WEAR AND TEAR AND DEPRECIATION. 

THE LEASING TITLE OF THE CONTRACT MADE NO MENTION OF TAXATION.  THE
EQUIPMENT-PROCUREMENT TITLE PROVIDED FOR REIMBURSEMENT OF MESTA "IN THE
PERFORMANCE OF THE WORK UNDER THIS TITLE" FOR PAYMENTS "UNDER THE
SOCIAL SECURITY ACT, AND ANY APPLICABLE STATE OR LOCAL TAXES, FEES, OR
CHARGES WHICH THE CONTRACTOR MAY BE REQUIRED ON ACCOUNT OF THIS
CONTRACT TO PAY ON OR FOR ANY PLANT, EQUIPMENT, PROCESS, ORGANIZATION,
MATERIALS, SUPPLIES, OR PERSONNEL."  THE GUN-SUPPLY TITLE RECITED THAT
THE CONTRACT PRICE DID NOT "INCLUDE ANY TAX IMPOSED BY ANY STATE,
COUNTY, OR MUNICIPALITY UPON THE TRANSACTION OF THIS PURCHASE OF GUNS. 
THE GOVERNMENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR THE
PAYMENT OF ANY SUCH TAXES, EXCEPT THAT IF THE CONTRACTOR AFTER USING
EVERY EFFORT SHORT OF LITIGATION TO PROCURE EXEMPTION OR REFUND, AS THE
CASE MAY BE, SHOULD BE COMPELLED TO PAY TO ANY STATE, COUNTY OR
MUNICIPALITY, ANY TAX UPON THE TRANSACTION OF THIS PROCUREMENT, AN
AMOUNT EQUAL TO THE TAX SO PAID SHALL BE PAID BY THE GOVERNMENT ON
DEMAND OF THE CONTRACTOR, IN ADDITION TO THE PRICES HEREIN STATED." 
THE GOVERNMENT ADMITS LIABILITY TO REIMBURSE MESTA IF IT IS OBLIGED TO
PAY TAX BY REASON OF THE ASSESSMENT IN QUESTION HERE. 

THE MACHINERY WAS BOLTED ON CONCRETE FOUNDATIONS IN MESTA'S PLANT ON
REAL PROPERTY OWNED BY IT. IT COULD BE REMOVED WITHOUT DAMAGE TO THE
BUILDING. 

THE PRESENT CONTROVERSY FLARED WHEN THE ASSESSING AUTHORITIES OF
ALLEGHENY COUNTY REVISED MESTA'S PREVIOUSLY DETERMINED ASSESSMENT FOR
AD VALOREM TAXES.  THEY ADDED THERETO THE VALUE OF THE MACHINERY IN
QUESTION, FIXED AT $618,000.  THIS INCLUDED PROPERTY ACQUIRED FROM
OTHER TOOL MANUFACTURERS AS ABOVE DESCRIBED, $444,000; THAT
MANUFACTURED BY MESTA, $14,000; LATHES BROUGHT FROM THE WATERVLIET
ARSENAL, $160,000.  MESTA PROTESTED AND EXHAUSTED ADMINISTRATIVE
REMEDIES WITHOUT AVAIL, AND ON JULY 30, 1942, PAID UNDER PROTEST
$5,137.12, THE AMOUNT OF THE TAX ATTRIBUTABLE TO THIS INCREASED
ASSESSMENT. 

MESTA TOOK A TIMELY APPEAL ALLOWED BY STATUTE TO THE COURT OF COMMON
PLEAS.  THE UNITED STATES PETITIONED TO INTERVENE, RECITING THAT IT
WOULD BE REQUIRED TO REIMBURSE MESTA BY FORCE OF ITS CONTRACT. 
INTERVENTION WAS PERMITTED AGAINST OBJECTION BY THE COUNTY, AND THE
UNITED STATES HAS PARTICIPATED IN THE LITIGATION SINCE.  MESTA ATTACKED
THE ASSESSMENT UNDER BOTH STATE AND FEDERAL LAW, CLAIMING THAT UNDER
THE STATE TAX LAW PROPERTY BELONGING TO ANOTHER WAS NOT TO BE
CONSIDERED A PART OF ITS MILL AND THAT IF CONSTRUED TO AUTHORIZE
ASSESSMENT AND TAXATION OF THIS MACHINERY, THE STATUTE VIOLATED THE
FEDERAL CONSTITUTION. 

THE COURT OF COMMON PLEAS HELD THAT THE STATE ACT AUTHORIZED THE
ASSESSMENT, BUT THAT THE MACHINERY HERE INVOLVED WAS "OWNED BY THE
UNITED STATES" AND SO FOR CONSTITUTIONAL REASONS COULD NOT BE
INCLUDED. 

THE SUPREME COURT OF PENNSYLVANIA, ON APPEAL OF THE COUNTY, REVERSED,
AND REINSTATED THE ASSESSMENT.  IT HELD THAT UNDER THE STATE LAW
REGARDLESS OF WHO HELD THE TITLE TO IT THE MACHINERY CONSTITUTED A PART
OF THE MILL FOR PURPOSES OF ASSESSMENT AND WAS PROPERLY ASSESSED AS
REAL ESTATE.  IT ACKNOWLEDGED THAT PROPERTY HELD BY THE UNITED STATES
IS "BEYOND THE PALE OF TAXATION" BY A STATE, BUT THIS ASSESSMENT, IT
SAID, IS NOT AGAINST THE UNITED STATES BUT AGAINST MESTA, WHICH IS
OPERATING ITS MILL FOR PRIVATE PURPOSES.  IF MESTA DEFAULTED IN TAX
PAYMENTS, THE COURT HELD THAT "THE PARAMOUNT RIGHTS OF THE GOVERNMENT
IN THE MACHINERY COULD NOT BE DIVESTED OR IN ANY WAY AFFECTED," HENCE
THE GOVERNMENT COULD SUFFER NO LOSS.  EVIDENCE THAT THE MACHINERY WAS
NOT OWNED BY MESTA IT HELD TO BE IRRELEVANT AND IMPROPERLY ADMITTED. 
TWO JUSTICES DISSENTED. 

THE UNITED STATES AND MESTA APPEALED AND WE POSTPONED CONSIDERATION
OF JURISDICTIONAL QUESTIONS TO THE HEARING ON THE MERITS. 

I. 

IT IS DENIED THAT THE GOVERNMENT HAS VALID TITLE TO THE MACHINERY. 
THIS CONTENTION IS URGED BY THE MEMBER CITIES OF THE NATIONAL INSTITUTE
OF MUNICIPAL LAW OFFICERS, PERMITTED TO FILE A BRIEF AND TO ARGUE
ORALLY AS AMICI CURIAE.  THEIR POSITION IS THAT "THE GOVERNMENT IS
SUBJECT TO THE LEGAL RULES APPLICABLE TO PRIVATE TRANSACTIONS."  UNDER
PENNSYLVANIA LAW TRANSFER OF TITLE TO PERSONAL PROPERTY TO BE GOOD AS
AGAINST SUBSEQUENT PURCHASERS AND LIENORS MUST BE ACCOMPANIED BY
DELIVERY OF POSSESSION.  THEY SAY THAT INSPECTION AND ACCEPTANCE BY A
CONTRACTING OFFICER ON BEHALF OF THE UNITED STATES AT THE MESTA PLANT
DID NOT UNDER DECISIONAL LAW OF PENNSYLVANIA AMOUNT TO DELIVERY OF
POSSESSION TO THE UNITED STATES AND HENCE THAT ITS TITLE IS DEFECTIVE. 
THE POSITION OF THE COUNTY IS LESS EXTREME.  IT ARGUED EARLIER IN THE
LITIGATION THAT THE MACHINERY BECAME PART OF MESTA'S REAL ESTATE UPON
INSTALLATION AND THAT THE UNITED STATES HAD ONLY "A REVERSIONARY
INTEREST AFTER THE TERMINATION OF THE CONTRACT."  IT LATER CONCEDED
THAT TITLE TO THE PROPERTY WAS NOT IN MESTA "EXCEPT FOR TAX PURPOSES." 
THE PENNSYLVANIA SUPREME COURT THOUGHT IT IMMATERIAL WHETHER TITLE WAS
IN THE GOVERNMENT, BUT SAID, "  ...  THIS PRIVATE ARRANGEMENT BETWEEN
THE MESTA COMPANY, THE OWNER OF THE LAND AND BUILDINGS AND OPERATOR OF
THE MILL, AND THE FEDERAL GOVERNMENT, THE OWNER OF THE MACHINERY, WHICH
TREATS THE EQUIPMENT AS PERSONAL PROPERTY AND PERMITS THE LATTER TO
REMOVE IT AT THE TERMINATION OF THE CONTRACT, CAN IN NO WAY CHANGE THE
LEGAL EFFECT OF THE ACT OF ASSEMBLY WHICH SPECIFICALLY DESIGNATES
MACHINERY, UNDER THESE CIRCUMSTANCES, AS REAL ESTATE FOR TAX
PURPOSES." 

WE DO NOT DETERMINE WHETHER, UNDER PENNSYLVANIA LAW, THE RETENTION OF
POSSESSION BY MESTA WOULD PROTECT ONLY GOOD-FAITH PURCHASERS OR LIENORS
WHO RELIED UPON IT OR WHETHER, AS URGED BY THE AMICI, IT ALSO MAKES THE
GOVERNMENT'S TITLE IMPERFECT AS AGAINST THESE TAXING AUTHORITIES, WHO
WERE FULLY ADVISED OF THE GOVERNMENT'S CLAIM BEFORE THE ASSESSMENT WAS
MADE.  EVEN IF THE LATTER WERE TRUE, WE DO NOT THINK THE STATE LAW
WOULD BE DECISIVE OF THE QUESTION OF TITLE. 

THE CONSTITUTION PROVIDES THAT "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 ...  "  ART.
IV, SEC. 3, CL. 2.  IT ALSO GIVES CONGRESS THE POWER "TO MAKE ALL LAWS
WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION" ALL
POWERS VESTED IN THE GOVERNMENT OR IN ANY DEPARTMENT OR OFFICER
THEREOF, ART. 1, SEC. 8, CL. 18, AND IT MAKES THE LAWS OF THE UNITED
STATES ENACTED PURSUANT THERETO "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." 
ART. VI, CL. 2. 

EVERY ACQUISITION, HOLDING, OR DISPOSITION OF PROPERTY BY THE FEDERAL
GOVERNMENT DEPENDS UPON PROPER EXERCISE OF A CONSTITUTIONAL GRANT OF
POWER.  IN THIS CASE NO CONTENTION IS MADE THAT THE CONTRACT WITH MESTA
IS NOT FULLY AUTHORIZED BY THE CONGRESSIONAL POWER TO RAISE AND SUPPORT
ARMIES AND BY ADEQUATE CONGRESSIONAL AUTHORIZATION TO THE CONTRACTING
OFFICERS OF THE WAR DEPARTMENT.  IT MUST BE ACCEPTED AS AN ACT OF THE
FEDERAL GOVERNMENT WARRANTED BY THE CONSTITUTION AND REGULAR UNDER
STATUTE.    PROCUREMENT POLICIES SO SETTLED UNDER FEDERAL AUTHORITY MAY
NOT BE DEFEATED OR LIMITED BY STATE LAW.  THE PURPOSE OF THE SUPREMACY
CLAUSE WAS TO AVOID THE INTRODUCTION OF DISPARITIES, CONFUSIONS AND
CONFLICTS WHICH WOULD FOLLOW IF THE GOVERNMENT'S GENERAL AUTHORITY WERE
SUBJECT TO LOCAL CONTROLS.  THE VALIDITY AND CONSTRUCTION OF CONTRACTS
THROUGH WHICH THE UNITED STATES IS EXERCISING ITS CONSTITUTIONAL
FUNCTIONS, THEIR CONSEQUENCES ON THE RIGHTS AND OBLIGATIONS OF THE
PARTIES, THE TITLES OR LIENS WHICH THEY CREATE OR PERMIT, ALL PRESENT
QUESTIONS OF FEDERAL LAW NOT CONTROLLED BY THE LAW OF ANY STATE. 
CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363; JACKSON COUNTY V.
UNITED STATES, 308 U.S. 343; CARPENTER V. SHAW, 280 U.S. 363; UTAH
POWER & LIGHT CO. V. UNITED STATES, 243 U.S. 389; UNITED STATES V.
ANSONIA BRASS & COPPER CO., 218 U.S. 452; SEE D'OENCH, DUHME & CO. V.
FEDERAL DEPOSIT INS. CORP., 315 U.S. 447; DEITRICK V. GREANEY, 309 U.S.
190; FEDERAL LAND BANK V. BISMARCK LUMBER CO., 314 U.S. 95.  FEDERAL
STATUTES MAY DECLARE LIENS IN FAVOR OF THE GOVERNMENT AND ESTABLISH
THEIR PRIORITY OVER SUBSEQUENT PURCHASERS OR LIENORS IRRESPECTIVE OF
STATE RECORDING ACTS.  DETROIT BANK V. UNITED STATES, 317 U.S. 329;
UNITED STATES V. SNYDER, 149 U.S. 210.  OR THE GOVERNMENT MAY AVAIL
ITSELF, AS ANY OTHER LIENOR, OF STATE RECORDING FACILITIES, IN WHICH
CASE, WHILE IT HAS NEVER BEEN DENIED THAT IT MUST PAY NONDISCRIMINATORY
FEES FOR THEIR USE, THE RECORDING MAY NOT BE MADE THE OCCASION FOR
TAXING THE GOVERNMENT'S PROPERTY.  FEDERAL LAND BANK V. CROSLAND, 261
U.S. 374; PITTMAN V. HOME OWNERS' LOAN CORP., 308 U.S. 21. 

WE HOLD THAT TITLE TO THE PROPERTY IN QUESTION IS IN THE UNITED
STATES AND IS EFFECTIVE FOR TAX PURPOSES. 

                    II. 

THE COUNTY DENIES, HOWEVER, THAT IT IS TAXING PROPERTY BELONGING TO
THE UNITED STATES.  FIRST, IT SAYS IT TAXES ONLY THE LAND, WHICH THE
UNITED STATES DOES NOT OWN; AND THE MACHINERY IS NOT TAXED, BUT IS
CONSIDERED ONLY AS AN ENHANCEMENT OF THE VALUE OF THE LAND TO MESTA,
ITS OWNER.  SECONDLY, IT SAYS THE LIEN OF THE TAX DOES NOT ENCUMBER AND
THE PROCESS OF COLLECTION DOES NOT INVOLVE ANY SALE OR OTHER
INTERFERENCE WITH THE MACHINERY.  THE PENNSYLVANIA SUPREME COURT HAS
UPHELD THE QUESTIONED TAX BECAUSE UPON THESE GROUNDS IT CONCLUDED THAT
NO INTERFERENCE WITH THE FEDERAL FUNCTION RESULTED. 

"WHERE A FEDERAL RIGHT IS CONCERNED WE ARE NOT BOUND BY THE
CHARACTERIZATION GIVEN TO A STATE TAX BY STATE COURTS OR LEGISLATURES,
OR RELIEVED BY IT FROM THE DUTY OF CONSIDERING THE REAL NATURE OF THE
TAX AND ITS EFFECT UPON THE FEDERAL RIGHT ASSERTED."  CARPENTER V.
SHAW, 280 U.S. 363, 367-68. 

IT IS NOT CONTENDED THAT THE SCHEME OF TAXATION EMPLOYED BY
PENNSYLVANIA IS ANYTHING OTHER THAN THE OLD AND WIDELY USED AD VALOREM
GENERAL PROPERTY TAX.  THIS TAXATION PLAN INVOLVES THE IDENTIFICATION
AND VALUATION OF THE VARIABLE INDIVIDUAL HOLDINGS TO BE TAXED, COMMONLY
CALLED THE ASSESSMENT, THE APPLICATION OF A UNIFORM RATE CALCULATED ON
THE NEED FOR PUBLIC REVENUES, AND THE COLLECTION, IN DEFAULT OF
PAYMENT, BY DISTRAINT AND SALE OF THE PROPERTY ASSESSED AND TAXED. 
THIS FORM OF TAXATION IS NOT REGARDED PRIMARILY AS A FORM OF PERSONAL
TAXATION BUT RATHER AS A TAX AGAINST THE PROPERTY AS A THING.  ITS
PROCEDURES ARE MORE NEARLY ANALOGOUS TO PROCEDURES IN REM THAN TO THOSE
IN PERSONAM.  WHILE PERSONAL LIABILITY FOR THE TAX MAY BE AND SOMETIMES
IS IMPOSED, THE POWER TO TAX IS PREDICATED UPON JURISDICTION OF THE
PROPERTY, NOT UPON JURISDICTION OF THE PERSON OF THE OWNER, WHICH OFTEN
IS LACKING WITHOUT IMPAIRMENT OF THE POWER TO TAX.  IN BOTH THEORY AND
PRACTICE THE PROPERTY IS THE SUBJECT OF THE TAX AND STANDS AS SECURITY
FOR ITS PAYMENT. 

THE PENNSYLVANIA STATUTES EMBODY THIS SCHEME OF TAXATION.  THEY ARE A
CENTURY OLD.  THE BASIC PROVISION READS:  "THE FOLLOWING SUBJECTS AND
PROPERTY SHALL  ...  BE VALUED AND ASSESSED, AND SUBJECT TO TAXATION." 
FN3  TAXES ARE "DECLARED TO BE A FIRST LIEN ON SAID PROPERTY."  FN4  IT
IS ONLY UNDER THESE LEGISLATIVE PROVISIONS THAT THE TAX IN QUESTION IS
LAID. 

THE PROCEDURE OF THE ASSESSORS IS CONSISTENT WITH NO OTHER THEORY
THAN THAT THE MACHINERY ITSELF WAS BEING ASSESSED AND TAXED EXACTLY AS
LAND WAS BEING ASSESSED AND TAXED.  THE GOVERNMENT-OWNED MACHINERY WAS
INSPECTED AND ITEMIZED BY THE ASSESSOR, EACH MACHINE WAS THEN
SEPARATELY APPRAISED BY A MACHINERY EXPERT, AND THE AGGREGATE FULL
VALUES OF $618,000 WERE CARRIED INTO THE ASSESSMENT.  THE ASSESSMENT
AGAINST MESTA WAS ENTERED IN THE BOOKS OF THE ASSESSORS AS FOLLOWS:
"LAND, $293,795; BUILDINGS, $1,123,124; MACHINERY, $2,489,085; TOTAL
ASSESSMENT, $3,906,004."  THE MACHINERY ITEM INCLUDED THE VALUE OF THE
GOVERNMENT'S PROPERTY. 

THE ASSESSORS MADE NO CLAIM THAT THE TEMPORARY PRESENCE OF THE
GOVERNMENT'S MACHINERY ACTUALLY ENHANCED THE MARKET VALUE OR THE USE
VALUE OF MESTA'S LAND.  THE ASSESSORS SIMPLY AND FORTHRIGHTLY VALUED
MESTA'S LAND AS LAND, AND THE GOVERNMENT'S MACHINES AS MACHINERY, AND
ADDED THE LATTER TO THE FORMER.  WE DISCERN LITTLE THEORETICAL
DIFFERENCE, AND NO PRACTICAL DIFFERENCE AT ALL, BETWEEN WHAT WAS DONE
AND WHAT WOULD BE DONE IF THE MACHINERY WERE TAXED IN FORM.  ITS FULL
VALUE WAS ASCERTAINED AND ADDED TO THE BASE TO WHICH THE ANNUAL RATES
WOULD APPLY FOR COUNTY, CITY, BOROUGH, TOWN, TOWNSHIP, SCHOOL, AND POOR
PURPOSES. 

WE HOLD THAT THE SUBSTANCE OF THIS PROCEDURE IS TO LAY AN AD VALOREM
GENERAL PROPERTY TAX ON PROPERTY OWNED BY THE UNITED STATES. 

               III. 

IT IS CONTENDED, HOWEVER, THAT GOVERNMENT TITLE DOES NOT PREVENT SUCH
STATE TAXATION, BECAUSE THE INCIDENCE OF THE TAX IS BORNE BY MESTA, NOT
THE GOVERNMENT, AND THE TAXATION CREATES NO LIEN UPON ITS PROPERTY OR
INTERFERENCE WITH ITS FUNCTION. 

THE COMMONWEALTH CERTAINLY HAS BROAD POWERS AND CHOICES OF METHODS TO
TAX MESTA, A CORPORATION CREATED BY IT AND DOMICILED AND OPERATING
WITHIN ITS BORDERS.  THE TREND OF RECENT DECISIONS HAS BEEN TO WITHDRAW
PRIVATE PROPERTY AND PROFITS FROM THE SHELTER OF GOVERNMENTAL IMMUNITY
BUT WITHOUT IMPAIRING THE IMMUNITY OF THE STATE OR THE NATION ITSELF. 
BENEFITS WHICH A CONTRACTOR RECEIVES FROM DEALINGS WITH THE GOVERNMENT
ARE SUBJECT TO STATE INCOME TAXATION.  FN5  SALARIES RECEIVED FROM IT
MAY BE TAXED.  FN6  THE FACT THAT MATERIALS ARE DESTINED TO BE
FURNISHED TO THE GOVERNMENT DOES NOT EXEMPT THEM FROM SALES TAXES
IMPOSED ON THE CONTRACTOR'S VENDOR.  FN7  BUT IN ALL OF THESE CASES
WHAT WE HAVE DENIED IS IMMUNITY FOR THE CONTRACTOR'S OWN PROPERTY,
PROFITS, OR PURCHASES.  WE HAVE NOT HELD EITHER THAT THE GOVERNMENT
COULD BE TAXED OR ITS CONTRACTORS TAXED BECAUSE PROPERTY OF THE
GOVERNMENT WAS IN THEIR HANDS.  THE DISTINCTION BETWEEN TAXATION OF
PRIVATE INTERESTS AND TAXATION OF GOVERNMENTAL INTERESTS, ALTHOUGH
SOMETIMES DIFFICULT TO DEFINE, IS FUNDAMENTAL IN APPLICATION OF THE
IMMUNITY DOCTRINE AS DEVELOPED IN THIS COUNTRY. 

MESTA HAS SOME LEGAL AND BENEFICIAL INTEREST IN THIS PROPERTY.  IT IS
A BAILEE FOR MUTUAL BENEFIT.  WHETHER SUCH A RIGHT OF POSSESSION AND
USE IN VIEW OF ALL THE CIRCUMSTANCES COULD BE TAXED BY APPROPRIATE
PROCEEDINGS WE DO NOT DECIDE.  ITS LEASEHOLD INTEREST IS SUBJECT TO
SOME QUALIFICATION OF THE RIGHT TO USE THE PROPERTY EXCEPT FOR GUN
MANUFACTURE, IS LIMITED TO THE PERIOD IT ENGAGES IN SUCH WORK, AND IS
PERHAPS BURDENED BY OTHER CONTRACTUAL CONDITIONS.  WE HAVE HELD THAT
WHERE PRIVATE INTERESTS IN PROPERTY WERE SO PREPONDERANT THAT ALL THE
GOVERNMENT HELD WAS A NAKED TITLE AND A NOMINAL INTEREST, THE WHOLE
VALUE WAS TAXABLE TO THE EQUITABLE OWNER.  NORTHERN PACIFIC RY. CO. V.
MYERS, 172 U.S. 589; NEW BRUNSWICK V. UNITED STATES, 276 U.S. 547.  BUT
THAT IS NOT THE SITUATION HERE, AND THE STATE HAS MADE NO EFFORT TO
SEGREGATE MESTA'S INTEREST AND TAX IT.  THE FULL VALUE OF THE PROPERTY,
INCLUDING THE WHOLE OWNERSHIP INTEREST, AS WELL AS WHATEVER VALUE
PROPER APPRAISAL MIGHT ATTRIBUTE TO THE LEASEHOLD, WAS INCLUDED IN
MESTA'S ASSESSMENT. 

IT IS CONTENDED THE WHOLE VALUE OF THE PROPERTY MAY BE REACHED SINCE
THE IMPACT OF THE TAX IS UPON MESTA.  IN SUPPORT OF THIS WE ARE
REMINDED THAT THE TAX, SO THE SUPREME COURT OF PENNSYLVANIA HELD, FALLS
UPON THE REAL ESTATE ALONE, BECAUSE THE LIEN THEREOF DOES NOT TOUCH THE
GOVERNMENT'S PROPERTY, WHICH BEFORE OR AFTER TAX DEFAULT MAY BE
REMOVED.  BUT RENUNCIATION OF ANY LIEN ON GOVERNMENT PROPERTY ITSELF,
WHICH COULD NOT BE SUSTAINED IN ANY EVENT, HARDLY ESTABLISHES THAT IT
IS NOT BEING TAXED.  THE FACT IS THAT THE LIEN ON THE UNDERLYING LAND
IS INCREASED BECAUSE OF AND IN PROPORTION TO THE ASSESSMENT OF THE
MACHINERY.  IF THE TAX IS COLLECTED BY SELLING THE LAND OUT FROM UNDER
THE MACHINERY, THE EFFECT ON ITS USEFULNESS TO THE GOVERNMENT WOULD BE
ALMOST AS DISASTROUS AS TO SELL THE MACHINERY ITSELF.  THE COERCION OF
PAYMENT FROM COMPELLING THE GOVERNMENT TO MOVE ITS PROPERTY AND
INTERRUPT PRODUCTION AT THE MESTA PLANT WOULD DEFEAT THE PURPOSE OF THE
GOVERNMENT IN OWNING AND LEASING IT. 

WE THINK, HOWEVER, THAT THE GOVERNMENT'S PROPERTY INTERESTS ARE NOT
TAXABLE EITHER TO IT OR TO ITS BAILEE.  THE "GOVERNMENT" IS AN
ABSTRACTION, AND ITS POSSESSION OF PROPERTY LARGELY CONSTRUCTIVE. 
ACTUAL POSSESSION AND CUSTODY OF GOVERNMENT PROPERTY NEARLY ALWAYS ARE
IN SOMEONE WHO IS NOT HIMSELF THE GOVERNMENT BUT ACTS IN ITS BEHALF AND
FOR ITS PURPOSES.  HE MAY BE AN OFFICER, AN AGENT, OR A CONTRACTOR. 
HIS PERSONAL ADVANTAGES FROM THE RELATIONSHIP BY WAY OF SALARY, PROFIT,
OR BENEFICIAL PERSONAL USE OF THE PROPERTY MAY BE TAXED AS WE HAVE
HELD.  BUT NEITHER HE NOR THE GOVERNMENT CAN BE TAXED FOR THE
GOVERNMENT'S PROPERTY INTEREST.  RARELY DOES A STATE OR MUNICIPALITY
PURSUE THE FEDERAL GOVERNMENT ITSELF.  MOST OF THE IMMUNITY CASES WE
HAVE BEEN CALLED UPON TO DEAL WITH INVOLVED ASSERTION OF A RIGHT TO TAX
GOVERNMENT PROPERTY AGAINST AN INDIVIDUAL.  IN UNITED STATES V.
RICKERT, 188 U.S. 432, THIS COURT DECIDED THAT IMPROVEMENTS MADE UPON
LANDS TO WHICH THE UNITED STATES HELD TITLE BUT WHICH WERE PUT IN
POSSESSION OF INDIANS FOR THEIR BENEFIT REMAINED IMMUNE FROM TAXATION
AND THAT CATTLE, HORSES, AND CHATTELS PURCHASED WITH THE MONEY OF THE
GOVERNMENT AND "PUT INTO THE HANDS OF THE INDIANS TO BE USED IN
EXECUTION OF THE PURPOSE OF THE GOVERNMENT IN REFERENCE TO THEM" WERE
LIKEWISE IMMUNE FROM TAXATION.  IN VAN BROCKLIN V. TENNESSEE, 117 U.S.
151, TENNESSEE ATTEMPTED TO SELL FOR STATE TAXES LANDS WHICH THE UNITED
STATES OWNED AT THE TIME THE TAXES WERE ASSESSED AND LEVIED, BUT IN
WHICH IT HAD CEASED TO HAVE ANY INTEREST AT THE TIME OF SALE.  THERE,
AS HERE, IT WAS CLAIMED THE COLLECTION AFFECTED ONLY PRIVATE PERSONS,
WHOSE EQUITIES IN THE MATTER WERE AT LEAST DOUBTFUL, AND THAT THE
UNITED STATES COULD SUFFER NO HARM.  THE COURT HELD, HOWEVER, THAT THE
IMMUNITY PROTECTED THE PRIVATE OWNER, FOR THE TAX HAD BEEN LAID AGAINST
AN INTEREST OF THE GOVERNMENT WHICH WAS BEYOND THE REACH OF STATE
TAXING POWER.  SEE ALSO IRWIN V. WRIGHT, 258 U.S. 219; LEE V. OSCEOLA
IMPROVEMENT DISTRICT, 268 U.S. 643. 

A STATE MAY TAX PERSONAL PROPERTY AND MIGHT WELL TAX IT TO ONE IN
WHOSE POSSESSION IT WAS FOUND, BUT IT COULD HARDLY TAX ONE OF ITS
CITIZENS BECAUSE OF MONEYS OF THE UNITED STATES WHICH WERE IN HIS
POSSESSION AS COLLECTOR OF INTERNAL REVENUE, POSTMASTER, CLERK OF THE
UNITED STATES COURT, OR OTHER FEDERAL OFFICER, AGENT, OR CONTRACTOR. 
WE HOLD THAT GOVERNMENT-OWNED PROPERTY, TO THE FULL EXTENT OF THE
GOVERNMENT'S INTEREST THEREIN, IS IMMUNE FROM TAXATION, EITHER AS
AGAINST THE GOVERNMENT ITSELF OR AS AGAINST ONE WHO HOLDS IT AS A
BAILEE. 

                                 IV. 

WE FIND NO SUPPORT FOR THE CLAIM THAT THE IMMUNITY HAS BEEN WAIVED. 
CONGRESS CERTAINLY HAS NOT DONE SO.  IT IS TRUE THAT THE CONTRACT
REQUIRES MESTA TO OBEY AND ABIDE BY THE "APPLICABLE" LAW OF
PENNSYLVANIA.  BUT SUCH LANGUAGE DOES NOT REQUIRE MESTA TO SUBMIT TO
UNCONSTITUTIONAL EXACTIONS.  IT CLEARLY IS INADEQUATE TO WAIVE FEDERAL
IMMUNITY, EVEN IF WE ASSUME A CONTRACTING OFFICER HAD POWER TO DO SO.
LIKEWISE ANY CONTRACTUAL OBLIGATION OF THE WAR DEPARTMENT TO PAY
MESTA'S TAXES DOES NOT OPERATE EITHER TO WAIVE OR TO CREATE AN
IMMUNITY.  NOR IS THE VALIDITY OF THE TAX DEPENDENT UPON THE ULTIMATE
RESTING PLACE OF THE ECONOMIC BURDEN OF THE TAX.  WE ALSO THINK IT
IMMATERIAL WHAT, IF ANY, RIGHT OF REIMBURSEMENT THE PENNSYLVANIA LAW
GRANTS A LESSEE AGAINST A PRIVATE LESSOR IN SIMILAR CIRCUMSTANCES. 
STATE LAW COULD NOT OBLIGATE THE CENTRAL GOVERNMENT TO REIMBURSE FOR A
VALID TAX, MUCH LESS FOR AN INVALID ONE. 

EACH PARTY URGES EQUITIES IN ITS FAVOR.  THE GOVERNMENT POINTS TO THE
EXIGENCIES OF WAR, POINTS TO NUMEROUS AND INCREASING STATE EFFORTS TO
TAX SUCH PROPERTY, AND URGES AGAINST THE DECISION BELOW THAT IT IS A
PRECEDENT FOR TAXATION OF A SUBSTANTIAL PORTION OF PROPERTY OF THE
GOVERNMENT VALUED AT 7 1/2 BILLION DOLLARS IN THE POSSESSION AND USE OF
PRIVATE CONTRACTORS ENGAGED IN WAR PRODUCTION.  IT OWNS PROPERTY ON
PRIVATE LANDS, UNDER CONTRACTS SIMILAR TO THIS, WITH A VALUE
APPROXIMATING TWO BILLION DOLLARS, OVER $257,000,000 OF IT LOCATED IN
PENNSYLVANIA. 

APPELLEES, AND ESPECIALLY THE AMICI, ON THE OTHER HAND, POINT FOR A
DIFFERENT PURPOSE TO THE AMOUNT OF GOVERNMENT PROPERTY IN WAR
PRODUCTION.  IT IS SAID THAT INCREASED MUNICIPAL SERVICES, TO SERVE AND
PROTECT THE INFLUX OF WAR WORKERS, ARE REQUIRED IN ALL COMMUNITIES
WHERE LARGE WAR CONTRACTS OF THIS TYPE ARE PLACED; THAT SUCH LOCAL
SERVICES RELY HEAVILY ON REAL ESTATE TAXATION; THAT TO EXCLUDE PROPERTY
SUCH AS THIS, TOGETHER WITH THE LARGE REAL ESTATE HOLDINGS THAT HAVE
BEEN AND ARE BEING ACQUIRED BY THE GOVERNMENT, IMPOSES THIS INCREASED
COST ON OTHERS.  WHILE VALIDATION OF ASSESSMENTS OF THIS CHARACTER WILL
MEASURABLY INCREASE THE COST OF WAGING THE WAR, IT IS ARGUED THAT THE
FEDERAL GOVERNMENT MAY DIFFUSE THE COST THROUGHOUT THE COUNTRY INSTEAD
OF PUTTING A BACK-BREAKING BURDEN ON LOCAL GOVERNMENTS WHERE WAR PLANTS
ARE LOCATED.  FOR THESE REASONS WE ARE URGED TO HOLD THE POSITION OF
THE GOVERNMENT "UNSOUND, AS WELL AS INEQUITABLE."    SUCH
CONSIDERATIONS REMIND US OF OUR HEAVY RESPONSIBILITY IN DECIDING THE
ISSUES BUT HARDLY PROVIDE A GUIDE OR ALTER THE USUAL PRINCIPLES FOR
DECISION.  THE EQUITIES IN THIS UNFORTUNATE CONFLICT BETWEEN THE UNITED
STATES AND ONE OF ITS MOST IMPORTANT INDUSTRIAL COMMUNITIES ARE NOT
CAPABLE OF JUDICIAL ASCERTAINMENT OR EQUALIZATION.  WHETHER A COUNTY
LOSES MORE THAN IT GAINS BY SUCH FEDERAL ACTIVITY AND WHAT OTHER
FEDERAL BENEFITS OUGHT TO BE CONSIDERED IF A BALANCE WERE TO BE STRUCK
BETWEEN ADVANTAGES AND DISADVANTAGES, WE CANNOT SAY.  THE ADJUSTMENT OF
BENEFITS AND BURDENS IS FOR OTHER DEPARTMENTS, AND STUDIES TO THAT END
HAVE BEEN UNDERTAKEN.  FN8  WE CAN ONLY SAY THAT OUR CONSTITUTIONAL
SYSTEM AS JUDICIALLY INTERPRETED FROM THE BEGINNING LEAVES NO ROOM FOR
THE LOCALITIES TO IMPOSE EITHER COMPENSATORY OR RETALIATORY TAXATION ON
GOVERNMENT PROPERTY INTERESTS.  THEIR REMEDY LIES IN PETITION TO THE
FEDERAL CONGRESS, WHICH ALSO IS THEIR CONGRESS. 

                                  V. 

OUR JURISDICTION WAS QUESTIONED BY APPELLEE'S MOTION TO DISMISS, AND
ITS CONSIDERATION WAS POSTPONED TO HEARING OF THE MERITS.  THE ARGUMENT
RUNS THAT THE TAX IS LAID ONLY UPON MESTA AND THEREFORE ONLY MESTA CAN
QUESTION ITS VALIDITY; THAT IF MESTA DOES SO, IT CAN BE ONLY UNDER THE
FOURTEENTH AMENDMENT; THAT NO QUESTION HAS BEEN ASSIGNED UNDER THIS
AMENDMENT AND HENCE THE APPEAL SHOULD BE DISMISSED. 

THE QUESTIONS IN THIS CASE DO NOT ARISE UNDER THE FOURTEENTH
AMENDMENT.  THEY DEPEND ON PROVISIONS ADOPTED AND PRINCIPLES SETTLED
LONG BEFORE THE FOURTEENTH AMENDMENT AND WHICH EXIST INDEPENDENTLY OF
IT. 

THE UNITED STATES WAS ADMITTED TO THE CASE AS AN INTERVENOR.  BOTH IT
AND MESTA RAISED THESE QUESTIONS OF TAXABILITY, AS EITHER MAY DO.  THE
UNITED STATES MAY QUESTION THE TAXATION IN ORDER TO PROTECT ITS
SOVEREIGNTY OVER THE PROPERTY IN QUESTION.  MESTA AS BAILEE IS UNDER A
DUTY TO PROTECT THE PROPERTY AND MAY PROTECT ITSELF FROM UNLAWFUL
BURDENS PUT UPON IT BECAUSE OF ITS POSSESSION OF THE PROPERTY.  THE TAX
IS CALCULATED AND IMPOSED ON THE LAND AND MACHINERY AS A UNIT, THE LIEN
OF THE ASSESSMENT ON THE MACHINERY BECOMES A LIEN ON THE LAND WHICH CAN
BE TAKEN TO PAY THE TAX OCCASIONED BY THE MACHINERY.  SINCE THE TAX
MUST BE PAID OUT OF MESTA'S PROPERTY IT IS IN A POSITION TO CHALLENGE
THE VALIDITY OF THE TAX, AS WAS THE CASE IN VAN BROCKLIN V. TENNESSEE,
SUPRA.  BOTH MESTA AND THE GOVERNMENT MADE TIMELY INSISTENCE THAT THE
PENNSYLVANIA TAX LAW AS APPLIED VIOLATES THE FEDERAL CONSTITUTION.  THE
HIGHEST COURT OF THE STATE RENDERED FINAL JUDGMENT AGAINST THE CLAIM OF
FEDERAL RIGHT.  WE HAVE JURISDICTION BY APPEAL.  JUDICIAL CODE SEC.
237(A).  THE MOTION TO DISMISS IS DENIED. 

THE TAX LAW OF THE COMMONWEALTH OF PENNSYLVANIA AS INTERPRETED AND
APPLIED IN THIS CASE VIOLATES THE FEDERAL CONSTITUTION IN SO FAR AS IT
PURPORTS TO AUTHORIZE TAXATION OF THE PROPERTY INTERESTS OF THE UNITED
STATES IN THE MACHINERY IN MESTA'S PLANT, OR TO USE THAT INTEREST TO
TAX OR TO ENHANCE THE TAX UPON THE GOVERNMENT'S BAILEE.  THE JUDGMENT
IS REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  SEE DOBBINS V. COMMISSIONERS, 16 PET. 435; COLLECTOR V. DAY, 11
WALL.  113; NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S. 401; OSBORN V.
BANK OF UNITED STATES, 9 WHEAT.  738; OWENSBORO NATIONAL BANK V.
OWENSBORO, 173 U.S. 664; CHOCTAW, O. & G.R. CO. V. HARRISON, 235 U.S.
292; GILLESPIE V. OKLAHOMA, 257 U.S. 501; JAYBIRD MINING CO. V. WEIR,
271 U.S. 609; FEDERAL LAND BANK V. CROSLAND, 261 U.S. 374; TELEGRAPH
CO. V. TEXAS, 105 U.S. 460; LELOUP V. PORT OF MOBILE, 127 U.S. 640;
INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570; PANHANDLE OIL CO.
V. MISSISSIPPI EX REL. KNOX, 277 U.S. 218; GRAVES V. TEXAS CO., 298
U.S. 393. 

FN2  SEE ALABAMA V. KING & BOOZER, 314 U.S. 1; GRAVES V. NEW YORK EX
REL. O'KEEFE, 306 U.S. 466; JAMES V. DRAVO CONTRACTING CO., 302 U.S.
134; HELVERING V. GERHARDT, 304 U.S. 405; HELVERING V. MOUNTAIN
PRODUCERS CORP., 303 U.S. 376. 

FN3  PENN.  STAT.  ANN. (PURDON) TIT. 72, SEC. 5020-201. 

FN4  ID., TIT. 53, SEC. 2022. 

FN5  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134. 

FN6  GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466. 

FN7  ALABAMA V. KING & BOOZER, 314 U.S. 1. 

FN8  SEE REPORT ON FEDERAL CONTRIBUTIONS TO STATES AND LOCAL
GOVERNMENTAL UNITS WITH RESPECT TO FEDERALLY OWNED REAL ESTATE, HOUSE
DOC. NO. 216, 78TH CONG., 1ST SESS. (1943).  THIS COMPREHENSIVE REPORT
SHOWS THE IMPOSSIBILITY OF GENERALIZING ABOUT THE EQUITIES BETWEEN THE
FEDERAL GOVERNMENT AND A COMMUNITY IN CASES DEALING WITH ISOLATED
PROPERTIES.  MUCH FEDERALLY OWNED PROPERTY IS HELD FOR THE
ACCOMMODATION AND SERVICE OF THE LOCALITY, SUCH AS THE POST OFFICE OR
THE COURTHOUSES.  OTHER IS HELD FOR GENERAL ADMINISTRATIVE PURPOSES IN
WHICH THE LOCALITY HAS AN INTEREST OR FOR THE CARE OF WARDS, SUCH AS
VETERANS, IN WHICH LOCAL INHABITANTS SHARE WITH OTHERS.  THE REPORT
CONSIDERS ALL FEDERALLY OWNED REAL ESTATE AND IMPROVEMENTS, BUT NOT
PERSONALTY.  IT SHOWS THAT THE UNITED STATES HAD WITHIN PENNSYLVANIA ON
JUNE 30, 1937, PROPERTY COSTING $278,519,000, WITH MARKET VALUE OF
$151,806,000.  THE ESTIMATED ANNUAL TAX BASED ON FAIR MARKET VALUE AT
LOCAL RATES WOULD BE $3,152,000.  BUT THE AVERAGE ANNUAL FEDERAL AID TO
THAT STATE IS REPORTED TO BE:  1928-30, $6,834,000; 1931-33,
$10,791,000; 1934-37, ALL KINDS, $190,071,000(EXCLUDING FERA, CWA, AND
WPA: $23,118,000). 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT. 

MR. JUSTICE ROBERTS: 

I THINK THE JUDGMENT OF THE SUPREME COURT OF PENNSYLVANIA IS RIGHT
AND SHOULD BE AFFIRMED FOR THE REASONS STATED IN ITS OPINION. 

IF JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, WERE NOT UPON OUR
BOOKS, OR HAD BEEN DECIDED THE OTHER WAY, I SHOULD AGREE TO THE OPINION
OF THE COURT.  IN THAT CASE, AT THE INSISTENCE OF THE UNITED STATES,
THIS COURT HELD THAT A STATE GROSS RECEIPTS TAX UPON PAYMENTS BY THE
UNITED STATES TO A CONTRACTOR FOR ERECTING STRUCTURES ON UNITED STATES
PROPERTY WAS VALID BECAUSE THE TAX WAS NOT LAID UPON THE CONTRACT, THE
GOVERNMENT, ITS PROPERTY, ITS OFFICERS, OR ITS INSTRUMENTALITY; WAS
LAID UPON AN INDEPENDENT CONTRACTOR AND WAS NONDISCRIMINATORY. 
ALTHOUGH ADMITTING THAT THE PAYMENT OF THE TAX IMPOSED A BURDEN UPON
THE ACTIVITIES OF THE UNITED STATES BECAUSE IT INEVITABLY INCREASED THE
COST OF EXERCISE OF ITS FUNCTIONS, THE COURT NONETHELESS SUSTAINED THE
EXACTION.  I THEN THOUGHT, AS I STILL THINK, THAT THE DECISION
OVERRULED A CENTURY OF PRECEDENTS IN THIS COURT. 

IT WAS NOT LONG BEFORE THE GOVERNMENT REPENTED ITS GENEROSITY.  FOUR
YEARS LATER, IT INSISTED, IN ALABAMA V. KING & BOOZER, 314 U.S. 1, THAT
A STATE SALES TAX UPON A PURCHASE OF BUILDING MATERIALS BY A CONTRACTOR
WHO WAS TO INCORPORATE THEM INTO A GOVERNMENT PROJECT, AND WHERE, UPON
DELIVERY, INSPECTION, AND ACCEPTANCE, THEY BECAME THE PROPERTY OF THE
GOVERNMENT, WAS SO DIRECT A TAX ON THE GOVERNMENT AS TO INFRINGE ITS
CONSTITUTIONAL IMMUNITY.  THE COURT, HOWEVER, FOLLOWED TO ITS LOGICAL
CONCLUSION THE DECISION IN DRAVO AND EXPRESSLY OVERRULED EARLIER
DECISIONS INCONSISTENT WITH DRAVO AND KING & BOOZER.  FN1  I CONCURRED
IN THAT DECISION, FEELING MYSELF BOUND BY THE DRAVO CASE. 

IN THIS CASE, AS I THINK, THE COURT NECESSARILY REVERTS TO THE TEST
OF BURDENSOMENESS BY A FORM OF WORDS AND, AS A RESULT, AGAIN PLUNGES
THE APPLICABLE PRINCIPLE INTO CONFUSION. 

THE TRUTH IS THAT THE TAX LIABILITY OF MESTA IN RESPECT OF ITS
MANUFACTURING PLANT HAS BEEN INCREASED BY THE PRESENCE IN THE PLANT OF
MACHINERY BAILED TO THE TAXPAYER BY THE FEDERAL GOVERNMENT.  IT IS TRUE
TOO THAT, EITHER AS A RESULT OF THE EXPRESS TERMS OF THE GOVERNMENT'S
CONTRACT WITH MESTA, THE GOVERNMENT'S MONETARY OBLIGATION TO MESTA WILL
BE INCREASED BY THE IMPOSITION OF INCREASED TAX OR, AS IN THE DRAVO
CASE, IF THE CONTRACTOR IS LIABLE FOR AN INCREASE OF TAX BY REASON OF
THE FACT THAT HE IS SUCH CONTRACTOR, THE GOVERNMENT, IN THE LONG RUN,
WILL HAVE TO PAY MORE FOR GOODS AND SERVICES AS A RESULT OF SUCH
INCREASE. 

IN ORDER TO RELIEVE THE GOVERNMENT OF THIS BURDEN, THE COURT IS NOW
OBLIGED TO SAY THAT THE LAW OF PENNSYLVANIA IS SOMETHING DIFFERENT FROM
WHAT THE SUPREME COURT OF THE COMMONWEALTH HAS DECLARED IT, AND THAT A
CENTURY OF STATE ADMINISTRATIVE AND JUDICIAL CONSTRUCTION IS
MEANINGLESS WHEN THE SUPPOSED NECESSITY ARISES TO UNBURDEN THE
GOVERNMENT FROM THE RESULT OF STATE TAXATION UPON PRIVATELY OWNED
PROPERTY. 

THE LAW OF PENNSYLVANIA IS, AND ALWAYS HAS BEEN, THAT A TAX IMPOSED
ON REAL ESTATE IS ENHANCED IN AMOUNT BY BUILDINGS AND MACHINERY PLACED
UPON THE LAND WITH THE CONSENT OF THE OWNER EVEN THOUGH HE DOES NOT OWN
THE IMPROVEMENTS BUT IS A MERE BAILEE.  THE LIEN OF THE TAX EXTENDS
ONLY TO THE LAND OWNED BY THE TAXPAYER AND THE BAILED IMPROVEMENTS ARE
NEITHER UNDER THE LIEN NOR SUBJECT TO SEIZURE OR SALE FOR PAYMENT OF
THE TAX.  BUT THIS SETTLED LAW IS BRUSHED ASIDE AND IT IS SAID,
NOTWITHSTANDING THESE FACTS, THAT, IN SOME INDEFINABLE WAY,
PENNSYLVANIA HAS IN TRUTH LEVIED AN AD VALOREM TAX UPON PROPERTY OF THE
UNITED STATES WHICH IS IN THE POSSESSION OF MESTA AS BAILEE.  THIS IS
NOTHING IN SUBSTANCE BUT TO SAY, IN THE TEETH OF THE DRAVO AND KING &
BOOZER CASES, THAT IF A TAX LEVIED UPON A CONTRACTOR OF THE GOVERNMENT
IMPOSES A BURDEN UPON THE GOVERNMENT'S ACTIVITIES IT VIOLATES THE
CONSTITUTIONAL IMMUNITY AND MUST BE STRICKEN DOWN.  WHEREAS, IN THOSE
CASES, THE COURT ACCEPTED THE TAX FOR WHAT IT WAS, VIZ., A TAX UPON THE
CONTRACTOR AND NOT UPON THE GOVERNMENT, HERE, ALTHOUGH UNDER STATE LAW
THE LIABILITY TO THE STATE IS THAT OF THE CONTRACTOR AND HIS PROPERTY,
AND CAN, IN NO EVENT, BE THE LIABILITY OF THE GOVERNMENT OR ITS
PROPERTY,  - EXCEPT AS THE GOVERNMENT EITHER CONTRACTUALLY ASSUMES THE
BURDEN OR BEARS IT AS AN INCIDENT OF THE CONTRACTOR'S BURDEN,  - THE
COURT ANNOUNCES THAT THE TAX IS LAID ON THE GOVERNMENT'S PROPERTY. 

I THINK THE CASE WAS DECIDED BY THE COURT BELOW ON A NONFEDERAL
GROUND.  THE DECISION IS PITCHED SOLELY UPON THE CHARACTER AND
INCIDENCE OF THE REAL PROPERTY TAX OF THE COMMONWEALTH.  AS THAT COURT,
IN THE LIGHT OF A HUNDRED YEARS OF HISTORY, DEFINED THE TAX AND THE TAX
LIEN NEITHER WAS LAID UPON OR COLLECTABLE FROM THE UNITED STATES OR ITS
PROPERTY.  AS A RESULT OF THAT DECISION MESTA BECAME LIABLE FOR AN
INCREASED TAX AS A RESULT OF CERTAIN TRANSACTIONS WITH THE GOVERNMENT. 
UNLESS THE DOCTRINE OF IMMUNITY FROM CONSEQUENT BURDEN ON THE
GOVERNMENT, AS THE OTHER PARTY TO THE CONTRACT, IS TO BE REIMPORTED
INTO OUR JURISPRUDENCE, THE APPEAL SHOULD BE DISMISSED BECAUSE THE
DECISION BELOW WAS BASED UPON AN ADEQUATE NONFEDERAL GROUND. 

FN1  PANHANDLE OIL CO. V. KNOX, 277 U.S. 218; GRAVES V. TEXAS CO.,
298 U.S. 393. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

I SHOULD LIKE TO ADD A FEW WORDS TO THE OPINION OF MY BROTHER
ROBERTS, WITH WHICH, IN THE MAIN, I AGREE. 

THIS CONTROVERSY IS TREATED BY THE COURT AS THOUGH IT PRESENTED A
CHALLENGE BY PENNSYLVANIA TO THE AUTHORITY OF THE UNITED STATES.  THE
CASE IS NOT ENTITLED, ON THE FACTS AS I UNDERSTAND THEM, TO HAVE SUCH
IMPORTANCE ATTRIBUTED TO IT.  WE ARE ALL AGREED THAT A STATE MUST
SUBORDINATE ITS POLICIES TO THE CONSTITUTIONAL POWERS DULY EXERCISED BY
THE UNITED STATES.  WAR OF COURSE EVOKES POWERS OF GOVERNMENT NOT
AVAILABLE IN TIMES OF PEACE, BUT IT IS NO LESS TRUE OF THE WAR POWERS
OF THE GOVERNMENT THAN OF THE PEACE POWERS THAT THE CONSTITUTION AND
THE LAWS ENACTED IN ACCORDANCE WITH IT ARE "THE SUPREME LAW OF THE
LAND."  UNITED STATES CONSTITUTION, ART. VI. 

IMPLICIT IN OUR FEDERAL SCHEME IS IMMUNITY OF THE FEDERAL GOVERNMENT
FROM TAXATION BY THE STATES.  AFTER HAVING LONG BEEN THE SUBJECT OF
DIFFERENCES OF OPINION, THE EXTENT OF THIS IMPLIED IMMUNITY WAS GREATLY
CURTAILED.  THE BASIS OF THE DOCTRINE WAS SHIFTED FROM THAT OF AN
ARGUMENTATIVE FINANCIAL BURDEN TO THE FEDERAL GOVERNMENT TO THAT OF
FREEDOM FROM DISCRIMINATION AGAINST TRANSACTIONS WITH THE GOVERNMENT
AND FREEDOM FROM DIRECT IMPOSITIONS UPON THE PROPERTY AND THE
INSTRUMENTALITIES OF THE GOVERNMENT.  THE DECISIONS IN JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, AND ALABAMA V. KING & BOOZER, 314 U.S.
1, MEAN NOTHING UNLESS THEY MEAN THAT IT IS NOT ENOUGH THAT THE
GOVERNMENT MAY ULTIMATELY HAVE TO BEAR THE COST OF A PART OR EVEN THE
WHOLE OF A TAX WHICH A STATE IMPOSES ON A THIRD PERSON WHO HAS BUSINESS
RELATIONS WITH THE GOVERNMENT, WHEN A STATE COULD IMPOSE SUCH A TAX
UPON SUCH A THIRD PERSON BUT FOR THE FACT THAT THE TRANSACTION WHICH
GAVE RISE TO IT WAS NOT WITH A PRIVATE PERSON BUT WITH THE GOVERNMENT. 
SO MUCH FOR THE SCOPE OF THE IMPLIED IMMUNITY OF THE GOVERNMENT FROM
STATE TAXATION AS I UNDERSTAND THE DECISIONS TO DATE.  BUT IN CARRYING
ON EFFECTIVELY THE TASK COMMITTED TO IT, THE UNITED STATES CAN, I
BELIEVE, GO BEYOND THE JUDICIAL DOCTRINE OF IMPLIED IMMUNITY FROM
TAXATION.  I HAVE NO DOUBT THAT CONGRESS, BY APPROPRIATE LEGISLATION,
COULD IMMUNIZE THOSE WHO DEAL WITH THE GOVERNMENT FROM SALES AND
PROPERTY TAXES WHICH STATES OTHERWISE ARE FREE TO IMPOSE. 

ON THE RECORD BEFORE US, PENNSYLVANIA HAS NOT CHALLENGED THE IMPLIED
IMMUNITY OF THE FEDERAL GOVERNMENT FROM TAXATION NOR HAS SHE SOUGHT TO
TAX THAT WHICH CONGRESS HAS SAID SHOULD BE FREE FROM TAXATION. 
PENNSYLVANIA HAS NOT TAXED PROPERTY OWNED BY THE GOVERNMENT. 
PENNSYLVANIA HAS NOT USED HER OTHERWISE UNQUESTIONED POWER OF TAXATION
TO DISCRIMINATE AGAINST ONE DEALING WITH THE GOVERNMENT.  FINALLY,
PENNSYLVANIA HAS NOT TRIED TO IMPOSE A TAX WHICH CONGRESS, IN ORDER TO
FACILITATE WAR PRODUCTION, HAS FORBIDDEN THE STATES TO LEVY. 
PENNSYLVANIA MERELY SEEKS TO ENFORCE A TAX ASSESSMENT AGAINST THE OWNER
OF LANDS AND BUILDINGS IN THE MANNER IN WHICH SHE HAS MADE SUCH AN
ASSESSMENT FOR ONE HUNDRED YEARS.  SHE HAS ASSESSED REAL PROPERTY
CONCEDEDLY OWNED BY MESTA AT A VALUATION INCREASED BY THE VALUE OF THE
MACHINERY MADE AVAILABLE TO MESTA BY VARIOUS ARRANGEMENTS WITH THE
GOVERNMENT.  BUT IT IS THE REALTY THAT IS BEING TAXED, PRECISELY AS
OTHER REALTY IS TAXED, AND BY PRECISELY THE SAME METHOD OF DETERMINING
THE VALUE OF OTHER REALTY.  IF THE MACHINERY WHICH HAS HERE BEEN
AFFIXED TO THE LAND THROUGH ARRANGEMENTS WITH THE GOVERNMENT HAD BEEN
MACHINERY THAT BELONGED TO REMINGTON ARMS AND MESTA HAD BEEN OPERATING
THROUGH REMINGTON AS A SUB-CONTRACTOR FOR THE GOVERNMENT, I SUPPOSE NO
ONE WOULD DOUBT THAT PENNSYLVANIA COULD ASSESS THE VALUE OF THE LAND
TAXED AGAINST MESTA AS IT WAS HERE ASSESSED, QUITE REGARDLESS OF THE
RETENTION OF THE TITLE BY REMINGTON OF THE ANNEXED FIXTURES, THE VALUE
OF WHICH SERVED TO ENHANCE THE AMOUNT AT WHICH THE LAND WAS ASSESSED. 
IT CANNOT ALTER THE NATURE OF THE TAX AS A TAX AGAINST MESTA'S
OWNERSHIP OF THE LAND AND BUILDINGS WHETHER THE ENHANCING FIXTURES
BELONG TO THE GOVERNMENT OR TO REMINGTON.  CONSTITUTIONAL ANSWERS DO AT
TIMES TURN ON A NICETY BUT NOT ON A NICETY WITHOUT AT LEAST A NICE
SIGNIFICANCE. 

THE CASE THUS APPEARS TO ME ONE THAT WAS DECIDED BY THE PENNSYLVANIA
SUPREME COURT ON THE SETTLED CONSTRUCTION OF THE PENNSYLVANIA STATUTE
AS A TAX ON REALTY, AND NOT AT ALL AS A TAX ON THE ONLY THING THAT
BELONGS TO THE UNITED STATES, NAMELY, MACHINERY ANNEXED TO THE REALTY. 
HERE ALSO "THERE CAN BE NO PRETENCE THAT THE COURT ADOPTED ITS VIEW IN
ORDER TO EVADE A CONSTITUTIONAL ISSUE, AND THE CASE HAS BEEN DECIDED
UPON GROUNDS THAT HAVE NO RELATION TO ANY FEDERAL QUESTION."  NICKEL V.
COLE, 256 U.S. 222, 225.  THE ONLY INTEREST WHICH THE STATE HERE TAXED
WAS AN INTEREST WITHIN THE POWER OF THE STATE TO TAX; IT WAS NOT A
FEDERAL INTEREST.  SEE ELDER V. WOOD, 208 U.S. 226, 232; NEW BRUNSWICK
V. UNITED STATES, 276 U.S. 547.  THE RATE AT WHICH THAT INTEREST WAS
TAXED IS EQUALLY A MATTER FOR PENNSYLVANIA TO DETERMINE.  IN VIEW OF
THE DRAVO CASE, SUPRA, AND ALABAMA V. KING & BOOZER, SUPRA, THERE IS
NOT BEFORE US A CONSTITUTIONALLY IMMUNIZED BURDEN OF THE GOVERNMENT. 
INSOFAR AS THE FINANCIAL BURDEN HAS BEEN DIRECTLY ASSUMED BY THE
GOVERNMENT IT HAS BEEN SO ASSUMED BY ARRANGEMENTS WHICH THE CONTRACTING
OFFICERS OF THE GOVERNMENT SAW FIT TO MAKE WITH MESTA. 

IN RESPECT TO THE PROBLEM WE ARE CONSIDERING, THE CONSTITUTIONAL
RELATION OF THE DOMINION OF CANADA TO ITS CONSTITUENT PROVINCES IS THE
SAME AS THAT OF THE UNITED STATES TO THE STATES.  A RECENT DECISION OF
THE SUPREME COURT OF CANADA IS THEREFORE PERTINENT.  IN CITY OF
VANCOUVER V. ATTORNEY-GENERAL OF CANADA, (1944) S.C.R. 23, THAT COURT
DENIED THE DOMINION'S CLAIM TO IMMUNITY IN A SITUATION PRECISELY LIKE
THIS, AS I BELIEVE WE SHOULD DENY THE CLAIM OF THE GOVERNMENT. 
..END :













THE ANACONDA V. AMER. SUGAR CO., 322 U.S. 42 


NO. 649.  ARGUED MARCH 29, 1944.  - DECIDED APRIL 24, 1944.  - 138 F.2D
765, AFFIRMED. 


THE PARTIES TO AN AGREEMENT FOR ARBITRATION OF DISPUTES ARISING OUT OF
A CHARTER PARTY CAN NOT BY STIPULATION MAKE UNAVAILABLE THE RIGHT OF
THE AGGRIEVED PARTY UNDER SEC. 8 OF THE UNITED STATES ARBITRATION ACT
TO BEGIN HIS PROCEEDING BY "LIBEL AND SEIZURE OF THE VESSEL  ...
ACCORDING TO THE USUAL COURSE OF ADMIRALTY PROCEEDINGS."  P. 46. 

THE ANACONDA ET AL. V. AMERICAN SUGAR REFINING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 321 U.S. 758, TO REVIEW THE REVERSAL OF A JUDGMENT, 48
F.SUPP.  385, DISMISSING A LIBEL IN ADMIRALTY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI BECAUSE THIS CASE POSES AN IMPORTANT QUESTION
ARISING UNDER THE UNITED STATES ARBITRATION ACT.  FN1  THE QUESTION
ARISES IN THESE CIRCUMSTANCES.  THE PETITIONER SMITH-ROWLAND COMPANY,
INC., AS OWNER, CHARTERED TO THE RESPONDENT, AMERICAN SUGAR REFINING
COMPANY, THE BARGE "ANACONDA" FOR A VOYAGE FROM HAVANA, CUBA, TO PORT
EVERGLADES, FLORIDA.  AFTER ARRIVAL AT THE LATTER PORT, THE RESPONDENT
FILED IN A FEDERAL DISTRICT COURT A LIBEL IN PERSONAM AGAINST THE
PETITIONER WITH A PRAYER FOR PROCESS OF FOREIGN ATTACHMENT, AND IN REM
AGAINST THE VESSEL, WHICH WAS SEIZED BY THE MARSHAL. 

SMITH-ROWLAND COMPANY, INC., APPEARING SPECIALLY, EXCEPTED TO THE
JURISDICTION OF THE COURT, RELYING ON A PROVISION OF THE CHARTER PARTY
WHICH WAS:  "ANY AND ALL DIFFERENCES AND DISPUTES OF WHATSOEVER NATURE
ARISING OUT OF THIS CHARTER SHALL BE PUT TO ARBITRATION AT THE FINAL
PLACE OF DISCHARGE  ...  PURSUANT TO THE PROVISIONS OF THE UNITED
STATES ARBITRATION ACT  ...  EXCEPT THAT THE PROVISIONS OF SECTION 8
THEREOF SHALL NOT APPLY TO ANY ARBITRATION HEREUNDER." 

ACTION OTHERWISE JUSTICIABLE IN ADMIRALTY, THEN, NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THE PARTY CLAIMING TO BE AGGRIEVED MAY
BEGIN HIS PROCEEDING HEREUNDER BY LIBEL AND SEIZURE OF THE VESSEL ...
ACCORDING TO THE USUAL COURSE OF ADMIRALTY PROCEEDINGS, AND THE COURT
SHALL THEN HAVE JURISDICTION TO DIRECT THE PARTIES TO PROCEED WITH THE
ARBITRATION AND SHALL RETAIN JURISDICTION TO ENTER ITS DECREE UPON THE
AWARD." 

THE COURT TREATED THE PETITIONER'S EXCEPTION AS A MOTION TO DISMISS,
AND ORDERED DISMISSAL  FN2 ON THE GROUND THAT IT WAS COMPETENT TO THE
PARTIES, WHILE AVAILING THEMSELVES OF THE PROVISIONS OF THE ACT
RENDERING ARBITRATION AGREEMENTS ENFORCEABLE IN COURTS OF ADMIRALTY, TO
PRECLUDE RESORT TO THE USUAL PROCESS OF SEIZURE AS SECURITY FOR
COMPLIANCE WITH ANY ARBITRAL AWARD.  THE RESPONDENT APPEALED FROM THE
ORDER, AND THE PARTIES ENTERED A STIPULATION FOR VALUE PURSUANT TO
WHICH THE BARGE WAS RELEASED FROM THE MARSHAL'S CUSTODY.  THE CIRCUIT
COURT OF APPEALS REVERSED THE JUDGMENT.  FN3  WE HOLD ITS ACTION WAS
RIGHT. 

WITHIN THE SPHERES OF ITS OPERATION,  - MARITIME TRANSACTIONS AND
TRANSACTIONS IN COMMERCE, INTERSTATE AND WITH FOREIGN NATIONS,  - THE
ARBITRATION ACT RENDERED A WRITTEN PROVISION IN A CONTRACT BY THE
PARTIES TO SUCH A TRANSACTION, TO ARBITRATE CONTROVERSIES ARISING
THEREOUT, SPECIFICALLY ENFORCEABLE.  THEREBY CONGRESS OVERTURNED THE
EXISTING RULE THAT PERFORMANCE OF SUCH AGREEMENTS COULD NOT BE
COMPELLED BY RESORT TO COURTS OF EQUITY OR ADMIRALTY.  FN4 

AFTER DECLARING (SEC. 2)  FN5  SUCH AGREEMENTS TO BE ENFORCEABLE,
CONGRESS, IN SUCCEEDING SECTIONS, IMPLEMENTED THE DECLARED POLICY.  BY
SEC. 3 IT PROVIDED THAT "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  ...
SHALL ON APPLICATION OF ONE OF THE PARTIES STAY THE TRIAL  ...  UNTIL
SUCH ARBITRATION HAS BEEN HAD" IF THE APPLICANT IS NOT IN DEFAULT IN
PROCEEDING WITH SUCH ARBITRATION.  THE SECTION OBVIOUSLY ENVISAGES
ACTION IN A COURT ON A CAUSE OF ACTION AND DOES NOT OUST THE COURT'S
JURISDICTION OF THE ACTION, THOUGH THE PARTIES HAVE AGREED TO
ARBITRATE.  AND, IT WOULD SEEM THERE IS NOTHING TO PREVENT THE
PLAINTIFF FROM COMMENCING THE ACTION BY ATTACHMENT IF SUCH PROCEDURE IS
AVAILABLE UNDER THE APPLICABLE LAW.  THIS SECTION DEALS WITH SUITS AT
LAW OR IN EQUITY.  THE CONCEPT SEEMS TO BE THAT A POWER TO GRANT A STAY
IS ENOUGH WITHOUT THE POWER TO ORDER THAT THE ARBITRATION PROCEED, FOR,
IF A STAY BE GRANTED, THE PLAINTIFF CAN NEVER GET RELIEF UNLESS HE
PROCEEDS TO ARBITRATION. 

THE ADMIRALTY JURISDICTION.  IT HAS ALREADY BEEN QUOTED.  IF THE CAUSE
OF ACTION IS ONE COGNIZABLE IN ADMIRALTY, THEN, THOUGH THE PARTIES HAVE
AGREED TO ARBITRATE, "NOTWITHSTANDING ANYTHING HEREIN (I.E. IN THE ACT)
TO THE CONTRARY," THE PARTY CLAIMING TO BE AGGRIEVED MAY BEGIN "HIS
PROCEEDING HEREUNDER BY LIBEL AND SEIZURE," "ACCORDING TO THE USUAL
COURSE OF ADMIRALTY PROCEEDINGS," AND THE COURT MAY DIRECT THE PARTIES
TO PROCEED WITH ARBITRATION AND RETAIN JURISDICTION TO ENTER ITS DECREE
ON THE AWARD.  HERE AGAIN THE ACT PLAINLY CONTEMPLATES THAT ONE WHO HAS
AGREED TO ARBITRATE MAY, NEVERTHELESS, PROSECUTE HIS CAUSE OF ACTION IN
ADMIRALTY, AND PROTECTS HIS OPPONENT'S RIGHT TO ARBITRATION BY COURT
ORDER.  FAR FROM OUSTING OR PERMITTING THE PARTIES TO THE AGREEMENT TO
OUST THE COURT OF JURISDICTION OF THE CAUSE OF ACTION THE STATUTE
RECOGNIZES THE JURISDICTION AND SAVES THE RIGHT OF AN AGGRIEVED PARTY
TO INVOKE IT. 

FINALLY WE TURN TO SEC. 4, WHICH PERMITS "A PARTY AGGRIEVED BY THE
ALLEGED FAILURE" OF HIS OPPONENT TO ARBITRATE AS AGREED, TO PETITION
ANY FEDERAL COURT OF APPROPRIATE JURISDICTION AT LAW, IN EQUITY OR IN
ADMIRALTY, FOR AN ORDER DIRECTING THAT ARBITRATION PROCEED.  PROVISION
IS MADE FOR FRAMING AN ISSUE AND TRYING IT AS TO WHETHER THE PARTIES
ARE BOUND TO ARBITRATE AND THE ENTRY OF AN ORDER ACCORDINGLY.  FROM
THIS PROVISION IT IS CLEAR THAT THE PARTIES MAY PROCEED IN AN ADMIRALTY
CASE WITHOUT THE CUSTOMARY LIBEL AND SEIZURE.  AND IT HAS BEEN SO
HELD.  FN6 

GRANTED BY SEC. 4, MAY BEGIN A SUIT IN ADMIRALTY BY LIBEL AND SEIZURE. 
OUR QUESTION IS WHETHER THE ACT CONTEMPLATES OR PERMITS CONSENSUAL
ELIMINATION OF THE PROCEDURE THUS SAVED BY THE ACT AND CONTRACTUAL
CONFINEMENT OF THE AGGRIEVED PARTY'S RESORT TO A COURT TO A PETITION
FOR AN ORDER TO ARBITRATE UNDER SEC. 4.  WE THINK THE ANSWER MUST BE IN
THE NEGATIVE.  CONGRESS MAY HAVE THOUGHT IT WISE NOT TO RAISE DOUBTS
UNDER THE ADMIRALTY CLAUSE OF THE CONSTITUTION.  IT MAY HAVE THOUGHT
THAT IN MANY CAUSES IN ADMIRALTY IF THE AGGRIEVED PARTY COULD NOT SEIZE
THE SHIP OF HIS OPPONENT, AN ARBITRAL AWARD WOULD BE WHOLLY
UNENFORCEABLE AS THE VESSEL MIGHT SELDOM OR NEVER AGAIN BE WITHIN THE
JURISDICTION OF OUR COURTS.  BUT, WHATEVER ITS REASONS, CONGRESS
PLAINLY AND EMPHATICALLY DECLARED THAT ALTHOUGH THE PARTIES HAD AGREED
TO ARBITRATE, THE TRADITIONAL ADMIRALTY PROCEDURE WITH ITS CONCOMITANT
SECURITY SHOULD BE AVAILABLE TO THE AGGRIEVED PARTY WITHOUT IN ANY WAY
LESSENING HIS OBLIGATION TO ARBITRATE HIS GRIEVANCE RATHER THAN
LITIGATE THE MERITS IN COURT. 

IT IS ENOUGH THAT CONGRESS HAS SO DECLARED.  WE THINK A PARTY CAN NOT
STIPULATE AWAY SUCH A JURISDICTION WHICH THE LEGISLATION DECLARES OPEN
AS HERETOFORE. 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF FEBRUARY 12, 1925, C. 213, 43 STAT. 883; TITLE 9 U.S.C. 

FN2  48 F.SUPP.  385. 

FN3  138 F.2D 765. 

FN4  SEE RED CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109; 120-121,
123. 

FN5  THE SECTIONS HAVE THE SAME SECTION NUMBERS IN TITLE 9 OF THE
UNITED STATES CODE. 

FN6  THE AAKRE, 21 F.SUPP.  540. 
..END :














GREAT NORTHERN INS. CO. V. READ, 322 U.S. 47 


NO. 235.  ARGUED JANUARY 31, 1944.  - DECIDED APRIL 24, 1944.  - 136
F.2D 44, VACATED. 


1.  ON REVIEW BY CERTIORARI OF A JUDGMENT OF THE CIRCUIT COURT OF
APPEALS, THE RESPONDENT MAY URGE IN SUPPORT OF THE JUDGMENT A
CONTENTION WHICH WAS SUSTAINED BY THE DISTRICT COURT.  P. 49. 

2.  A FOREIGN INSURANCE COMPANY BROUGHT SUIT IN THE FEDERAL DISTRICT
COURT OF OKLAHOMA AGAINST THE INSURANCE COMMISSIONER OF OKLAHOMA, TO
RECOVER PAYMENTS MADE TO HIM PURSUANT TO A STATE STATUTE WHICH LEVIED A
TAX OF FOUR PER CENT ON PREMIUMS RECEIVED BY FOREIGN INSURANCE
COMPANIES IN THE STATE.  SECTION 12665, OKLAHOMA STATUTES OF 1931,
PRESCRIBED A JUDICIAL PROCEDURE FOR RECOVERY OF MONEY WRONGFULLY
COLLECTED AS TAXES.  HELD: 

(1)  THE SUIT WAS A SUIT AGAINST THE STATE, AND NOT MAINTAINABLE
WITHOUT ITS CONSENT.  ELEVENTH AMENDMENT; SMITH V. REEVES, 178 U.S.
436.  P. 53. 

(2)  THE STATE HAD CONSENTED TO ITS BEING SUED ONLY IN ITS OWN
COURTS, AND THE SUIT WAS THEREFORE NOT MAINTAINABLE IN THE FEDERAL
COURT.  P. 55. 

3.  A STATE MAY LIMIT TO ITS OWN COURTS SUITS AGAINST IT TO RECOVER
TAXES; AND ITS INTENT IN RESPECT OF SUCH SUITS TO SUBMIT TO THE
JURISDICTION OF COURTS OTHER THAN THOSE OF ITS OWN CREATION MUST
CLEARLY APPEAR.  P. 54. 

4.  SMYTH V. AMES, 169 U.S. 466; REAGAN V. FARMERS' LOAN & TRUST CO.,
154 U.S. 362; AND GUNTER V. ATLANTIC COAST LINE, 200 U.S. 273,
DISTINGUISHED.  P. 55. 

GREAT NORTHERN LIFE INSURANCE CO. V. READ, INSURANCE COMMISSIONER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 320 U.S. 726, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING ON THE MERITS A SUIT TO RECOVER SUMS ALLEGED TO HAVE BEEN
ILLEGALLY EXACTED AS TAXES. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT BRINGS HERE FOR REVIEW THE ACTION OF PETITIONER, A FOREIGN
INSURANCE COMPANY, TO RECOVER TAXES PAID TO RESPONDENT, THE INSURANCE
COMMISSIONER OF OKLAHOMA, WHICH WERE LEVIED BY SEC. 10478, OKLAHOMA
STATUTES 1931, AS AMENDED BY CHAPTER 1(A), TITLE 36, SESSION LAWS OF
OKLAHOMA 1941.  THIS WAS AN ANNUAL FOUR PER CENT TAX ON PREMIUMS
RECEIVED BY FOREIGN INSURANCE COMPANIES IN OKLAHOMA, AND IT, TOGETHER
WITH CERTAIN SPECIFIED FEES, WAS IN LIEU OF ALL OTHER TAXES AND FEES IN
OKLAHOMA.  PETITIONER PAID THE TAX UNDER PROTEST AND, ALLEGING
DIVERSITY OF CITIZENSHIP, 28 U.S.C. SEC. 41, BROUGHT SUIT AGAINST THE
INSURANCE COMMISSIONER IN THE DISTRICT COURT OF THE UNITED STATES.  THE
PROCEDURE FOR RECOVERY IS LAID DOWN BY SEC. 12665, OKLAHOMA STATUTES
1931.  FN1 

THE PERCENTAGE OF PREMIUMS DUE WAS INCREASED FROM TWO TO FOUR PER
CENT BY THE AMENDMENT OF 1941, EFFECTIVE APRIL 25TH OF THAT YEAR.  THE
DISTRICT COURT REFUSED RECOVERY.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  GREAT NORTHERN LIFE INSURANCE CO. V. READ, 136 F.2D 44. 
CERTIORARI WAS GRANTED ON PETITIONER'S ASSERTION OF ERROR IN REQUIRING
IT TO PAY A TAX ALLEGEDLY DISCRIMINATORY UNDER THE FOURTEENTH AMENDMENT
AS COMPARED WITH THE TAXATION OF DOMESTIC INSURANCE COMPANIES, AND ALSO
UNCONSTITUTIONAL AS LEVIED AFTER THE COMPANY'S ADMISSION TO THE STATE
AND ON PREMIUMS COLLECTED DURING THE BUSINESS YEAR FOR WHICH A LICENSE
WAS ALREADY IN FORCE.  A CONFLICT IN PRINCIPLE WAS SUGGESTED WITH
HANOVER FIRE INSURANCE CO. V. HARDING, 272 U.S. 494.  WE GRANTED
CERTIORARI, 320 U.S. 726, AND ASKED DISCUSSION OF THE RIGHT OF
PETITIONER TO MAINTAIN ITS SUIT IN A FEDERAL COURT.  AS WE CONCLUDE
THAT THIS SUIT COULD NOT BE MAINTAINED IN THE FEDERAL COURT, WE DO NOT
REACH THE MERITS OF THE ISSUE AS TO THE VALIDITY OF THE TAX. 

THE RIGHT OF PETITIONER TO MAINTAIN THIS SUIT IN A FEDERAL COURT
DEPENDS, FIRST, UPON WHETHER THE ACTION IS AGAINST AN INDIVIDUAL OR
AGAINST THE STATE OF OKLAHOMA.  SECONDLY, IF THE ACTION IS DETERMINED
TO BE AGAINST THE STATE, THE QUESTION ARISES AS TO WHETHER OR NOT THE
STATE HAS CONSENTED TO SUIT AGAINST ITSELF IN THE FEDERAL COURT. 

RESPONDENT CHALLENGED THE RIGHT OF PETITIONER TO SEEK RELIEF IN THE
DISTRICT COURT BY THE DEFENSE IN ITS ANSWER THAT THE COMPLAINT FAILS TO
STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.  R.C.P. 12(B) AND (E). 
FN2  THIS CHALLENGE, ON THE GROUND THAT THE STATE HAD NOT CONSENTED TO
BE SUED, WAS SUSTAINED BY THE DISTRICT COURT.  THE CONTENTION IS
AVAILABLE HERE TO SUSTAIN THE JUDGMENT ON APPEAL.  LETULLE V. SCOFIELD,
308 U.S. 415. 

IN SMITH V. REEVES, 178 U.S. 436, AN ACTION WAS INSTITUTED IN THE
FEDERAL TRIAL COURT BY RAILROAD RECEIVERS AGAINST THE DEFENDANT "AS
TREASURER OF THE STATE OF CALIFORNIA" TO RECOVER TAXES ASSESSED AGAINST
AND PAID BY THE RAILROAD.  THE PROCEEDING WAS BROUGHT UNDER SEC. 3669
OF THE CALIFORNIA POLITICAL CODE, AS AMENDED BY CALIFORNIA STATUTES
(1891) 442, WHICH AUTHORIZED A SUIT AGAINST THE STATE TREASURER FOR THE
RECOVERY OF TAXES WHICH WERE ILLEGALLY EXACTED.  THE DEFENDANT COULD
DEMAND TRIAL OF THE ACTION IN THE SUPERIOR COURT OF THE COUNTY OF
SACRAMENTO, CALIFORNIA.  IF THE FINAL JUDGMENT WAS AGAINST THE
TREASURER, THE COMPTROLLER OF THE STATE WAS DIRECTED TO DRAW HIS
WARRANT ON STATE FUNDS FOR ITS SATISFACTION. 

AS THE SUIT WAS AGAINST A STATE OFFICIAL AS SUCH, THROUGH PROCEEDINGS
WHICH WERE AUTHORIZED BY STATUTE, TO COMPEL HIM TO CARRY OUT WITH THE
STATE'S FUNDS THE STATE'S AGREEMENT TO REIMBURSE MONEYS ILLEGALLY
EXACTED UNDER COLOR OF THE TAX POWER, THIS COURT HELD, P. 439, IT WAS A
SUIT AGAINST THE STATE.  THE STATE WOULD BE REQUIRED TO PAY.  FN3  THE
CASE THEREFORE IS PLAINLY DISTINGUISHABLE FROM THOSE TO RECOVER
PERSONALLY FROM A TAX COLLECTOR MONEY WRONGFULLY EXACTED BY HIM UNDER
COLOR OF STATE LAW, ATCHISON, T. & S.F. RY. CO. V. O'CONNOR, 223 U.S.
280; CF. MATTHEWS V. RODGERS, 284 U.S. 521, 528; TO RECOVER UNDER
GENERAL LAW POSSESSION OF SPECIFIC PROPERTY LIKEWISE WRONGFULLY
OBTAINED OR HELD, TINDAL V. WESLEY, 167 U.S. 204, 221; VIRGINIA COUPON
CASES, 114 U.S. 269, 285; UNITED STATES V. LEE, 106 U.S. 196; TO
PERFORM A PLAIN MINISTERIAL DUTY, BOARD OF LIQUIDATION V. MCCOMB, 92
U.S. 531, 541; ROLSTON V. MISSOURI FUND COMM'RS, 120 U.S. 390, 411; OR
TO ENJOIN AN AFFIRMATIVE ACT TO THE INJURY OF PLAINTIFF, STERLING V.
CONSTANTIN, 287 U.S. 378, 393; TOMLINSON V. BRANCH, 15 WALL.  460;
DAVIS V. GRAY, 16 WALL.  203, 220; IN RE TYLER, 149 U.S. 164, 190. 
ONLY IN SMITH V. REEVES WAS THE ACTION AUTHORIZED BY STATUTE AGAINST
THE OFFICER IN HIS OFFICIAL CAPACITY.  IN THE OTHER INSTANCES RELIEF
WAS SOUGHT UNDER GENERAL LAW FROM WRONGFUL ACTS OF OFFICIALS.  IN SUCH
CASES THE IMMUNITY OF THE SOVEREIGN DOES NOT EXTEND TO WRONGFUL
INDIVIDUAL ACTION AND THE CITIZEN IS ALLOWED A REMEDY AGAINST THE
WRONGDOER PERSONALLY. 

THIS RULING THAT A STATE COULD NOT BE CONTROLLED BY COURTS IN THE
PERFORMANCE OF ITS POLITICAL DUTIES THROUGH SUITS AGAINST ITS OFFICIALS
HAS BEEN CONSISTENTLY FOLLOWED.  CHANDLER V. DIX, 194 U.S. 590; FITTS
V. MCGHEE, 172 U.S. 516, 529; MURRAY V. WILSON DISTILLING CO., 213 U.S.
151, 167; LANKFORD V. PLATTE IRON WORKS CO., 235 U.S. 461, 468 ET SEQ.;
EX PARTE STATE OF NEW YORK, NO. 1, 256 U.S. 490, 500; WORCESTER COUNTY
CO. V. RILEY, 302 U.S. 292, 296, 299.  EFFORTS TO FORCE, THROUGH SUITS
AGAINST OFFICIALS, PERFORMANCE OF PROMISES BY A STATE COLLIDE DIRECTLY
WITH THE NECESSITY THAT A SOVEREIGN MUST BE FREE FROM JUDICIAL
COMPULSION IN THE CARRYING OUT OF ITS POLICIES WITHIN THE LIMITS OF THE
CONSTITUTION.  MONACO V. MISSISSIPPI, 292 U.S. 313, 320; LOUISIANA V.
JUMEL, 107 U.S. 711, 720.  A STATE'S FREEDOM FROM LITIGATION WAS
ESTABLISHED AS A CONSTITUTIONAL RIGHT THROUGH THE ELEVENTH AMENDMENT. 
THE INHERENT NATURE OF SOVEREIGNTY PREVENTS ACTIONS AGAINST A STATE BY
ITS OWN CITIZENS WITHOUT ITS CONSENT.  HANS V. LOUISIANA, 134 U.S. 1,
10, 16. 

OKLAHOMA PROVIDES FOR RECOVERY OF UNLAWFUL EXACTIONS PAID TO ITS
COLLECTORS UNDER PROTEST.  SEC. 12665 OKLAHOMA STATUTES 1931.  NOTE 1,
SUPRA.  IN OUR VIEW OF THIS CASE IT IS UNNECESSARY FOR US TO PASS UPON
WHETHER THIS METHOD OF PROTECTING TAXPAYERS WAS INTENDED TO BE
EXCLUSIVE OF ALL OTHER REMEDIES, INCLUDING ACTIONS AGAINST AN
INDIVIDUAL WHO HAPPENED TO BE A TAX COLLECTOR, OR WHETHER IF IT WERE SO
INTENDED IT WOULD SURMOUNT ALL CONSTITUTIONAL OBJECTIONS.  COMPARE
BURRILL V. LOCOMOBILE CO., 258 U.S. 34, AND ANNISTON MFG. CO. V. DAVIS,
301 U.S. 337, 341-43.  SEE ALSO ANTRIM LUMBER CO. V. SNEED, 175 OKLA.
47, 49-51, 52 P.2D 1040, 1043-45. 

A SUIT AGAINST A STATE OFFICIAL UNDER SEC. 12665 TO RECOVER TAXES IS
HELD TO BE A SUIT AGAINST THE STATE BY OKLAHOMA AND THE REMEDY
EXCLUSIVE OF OTHER STATE REMEDIES.  ANTRIM LUMBER CO. V. SNEED, SUPRA,
175 OKLA. AT 51, 52 P.2D AT 1045.  THIS INTERPRETATION OF AN OKLAHOMA
STATUTE BY THE SUPREME COURT OF THE STATE ACCORDS WITH OUR VIEW, AS SET
OUT ABOVE, OF THE MEANING OF A SUIT AGAINST A STATE.  PETITIONER
BROUGHT THIS ACTION AGAINST THE COLLECTOR, THE INSURANCE COMMISSIONER,
IN STRICT ACCORD WITH THE REQUIREMENTS OF SEC. 12665.  IT ALLEGED THAT
THERE WAS NO APPEAL PROVIDED BY OKLAHOMA LAWS FROM DEFENDANT'S ACTION
IN COLLECTING AND GAVE NOTICE OF PROTEST AND SUIT TO DEFENDANT AT THE
TIME OF PAYMENT IN THE LANGUAGE OF THE SECTION.  BY SO DOING PETITIONER
WAS RELIEVED OF THE NECESSITY OF ESTABLISHING THAT THE PAYMENT WAS NOT
VOLUNTARY  FN4 AND OBTAINED THE ADVANTAGE OF A STATUTORY LIEN LIS
PENDENS ON THE TAX PAYMENT. 

BY SEC. 12665, OKLAHOMA CREATES A JUDICIAL PROCEDURE FOR THE PROMPT
RECOVERY BY THE CITIZEN OF MONEY WRONGFULLY COLLECTED AS TAXES.  IT IS
THE SOVEREIGN'S METHOD OF TAX ADMINISTRATION.  OKLAHOMA DESIGNATES THE
OFFICIAL TO BE SUED, ORDERS HIM TO HOLD THE TAX, EMPOWERS ITS COURTS TO
DO COMPLETE JUSTICE BY DETERMINING THE AMOUNT PROPERLY DUE AND DIRECTS
ITS COLLECTOR TO PAY BACK ANY EXCESS RECEIVED TO THE TAXPAYER.  THE
STATE PROVIDES THIS PROCEDURE IN LIEU OF THE COMMON LAW RIGHT TO CLAIM
REIMBURSEMENT FROM THE COLLECTOR.  THE ISSUE OF COERCION AND DURESS WAS
ELIMINATED AT THE PRE-TRIAL CONFERENCE WITHOUT OBJECTION BY THE
PETITIONER.  THE SECTION MAKES SURE THE TAXPAYER'S RECOVERY OF ILLEGAL
PAYMENTS.  THE SECTION IS LIKE THE CALIFORNIA STATUTE INVOLVED IN SMITH
V. REEVES, SUPRA, EXCEPT FOR THE IMMATERIAL DIFFERENCE THAT THE MONEY
COLLECTED IS DIRECTED TO BE HELD SEPARATE AND APART BY THE COLLECTOR
INSTEAD OF BEING HELD IN THE GENERAL FUNDS OF THE STATE TREASURER.  SEE
SEC. 3669, CALIFORNIA POLITICAL CODE, AS AMENDED BY CALIFORNIA STATUTES
(1891) 442.  IN THE REEVES CASE, AS HERE, THE SUIT WAS AGAINST THE
OFFICIAL, NOT THE INDIVIDUAL.  THE OKLAHOMA SECTION DIFFERS FROM THE
COLORADO LAW, SEC. 6, CHAPTER 211, SESSION LAWS OF COLORADO 1907,
CONSIDERED IN ATCHISON, T. & S.F. RY. CO. V. O'CONNOR, SUPRA, IN THAT
THE COLORADO STATUTE LEFT THE TAXPAYER TO HIS REMEDY AGAINST THE
COLLECTOR AND MERELY DIRECTED THE REFUND OF THE TAX BY THE TREASURER IN
ACCORDANCE WITH ANY JUDGMENT OR DECREE WHICH MIGHT BE OBTAINED.  IN THE
O'CONNOR CASE, IN ACCORDANCE WITH THE STATUTE, THE SUIT, AS THIS
COURT'S OPINION SHOWS, WAS AGAINST THE INDIVIDUAL, NOT THE OFFICIAL. 
WE ARE OF THE VIEW THAT THE PRESENT PROCEEDING UNDER SEC. 12665 IS LIKE
SMITH V. REEVES, A SUIT AGAINST THE STATE. 

BUT IT IS URGED THAT IF THIS IS A SUIT AGAINST THE STATE, OKLAHOMA
HAS CONSENTED TO THIS ACTION IN THE FEDERAL COURT.  CF. REAGAN V.
FARMERS' LOAN & TRUST CO., 154 U.S. 362, 391. 

THE PRINCIPLE OF IMMUNITY FROM LITIGATION ASSURES THE STATES AND THE
NATION FROM UNANTICIPATED INTERVENTION IN THE PROCESSES OF GOVERNMENT,
WHILE ITS RIGORS ARE MITIGATED BY A SENSE OF JUSTICE WHICH HAS
CONTINUALLY EXPANDED BY CONSENT THE SUABILITY OF THE SOVEREIGN.  THE
HISTORY OF SOVEREIGN IMMUNITY AND THE PRACTICAL NECESSITY OF UNFETTERED
FREEDOM FOR GOVERNMENT FROM CRIPPLING INTERFERENCES REQUIRE A
RESTRICTION OF SUABILITY TO THE TERMS OF THE CONSENT, AS TO PERSONS,
COURTS AND PROCEDURES.  ANTRIM LUMBER CO. V. SNEED, 175 OKLA. 47, 52
P.2D 1040; PATTERSON V. CITY OF CHECOTAH, 187 OKLA. 587, 103 P.2D 97;
BEERS V. ARKANSAS, 20 HOW.  527; KAWANANAKOA V. POLYBLANK, 205 U.S.
349; MINNESOTA V. UNITED STATES, 305 U.S. 382, 388; UNITED STATES V.
U.S. FIDELITY & GUARANTY CO., 309 U.S. 506, 512.  FN5  THE IMMUNITY
MAY, OF COURSE, BE WAIVED.  CLARK V. BARNARD, 108 U.S. 436, 447.  WHEN
A STATE AUTHORIZES A SUIT AGAINST ITSELF TO DO JUSTICE TO TAXPAYERS WHO
DEEM THEMSELVES INJURED BY ANY EXACTION, IT IS NOT CONSONANT WITH OUR
DUAL SYSTEM FOR THE FEDERAL COURTS TO BE ASTUTE TO READ THE CONSENT TO
EMBRACE FEDERAL AS WELL AS STATE COURTS.  FEDERAL COURTS, SITTING
WITHIN STATES, ARE FOR MANY PURPOSES COURTS OF THAT STATE, MADISONVILLE
TRACTION CO. V. MINING CO., 196 U.S. 239, 255, BUT WHEN WE ARE DEALING
WITH THE SOVEREIGN EXEMPTION FROM JUDICIAL INTERFERENCE IN THE VITAL
FIELD OF FINANCIAL ADMINISTRATION A CLEAR DECLARATION OF THE STATE'S
INTENTION TO SUBMIT ITS FISCAL PROBLEMS TO OTHER COURTS THAN THOSE OF
ITS OWN CREATION MUST BE FOUND.  FN6 

THE OKLAHOMA SECTION IN QUESTION, 12665, WAS ENACTED IN 1915 AS A
PART OF A GENERAL AMENDMENT TO THEN EXISTING TAX LAWS.  SESSION LAWS
1915, P. 149, CHAP. 107, ART. ONE, SUBDIVISION B, SEC. 7.  FN7  THIS
SUBDIVISION OF THE ACT OF 1915 IS CONCERNED WITH ADMINISTRATIVE REVIEW
OF BOARDS OF EQUALIZATION AND PROVIDES A COMPLETE PROCEDURE INCLUDING
REVIEW BY THE DISTRICT AND SUPREME COURT OF OKLAHOMA, AS THE CASE MAY
BE, WHICH ARE GIVEN AUTHORITY TO AFFIRM, MODIFY OR ANNUL THE ACTION OF
THE BOARDS.  SECS. 2 AND 3.  SECTION 6 REQUIRES THE PAYMENT OF THE
TAXES WHICH FALL DUE, PENDING ADMINISTRATIVE REVIEW, AND PROVIDES FOR
RECOVERY OF SUCH TAXES IN ACCORDANCE WITH THE ULTIMATE FINDING ON
REVIEW IN LANGUAGE PRACTICALLY IDENTICAL WITH THAT OF SEC. 7(SEC. 
12665) HERE INVOLVED.  FURTHERMORE, SEC. 12665 GIVES DIRECTIONS TO THE
OKLAHOMA OFFICER AS TO HIS OBLIGATIONS, REQUIRES THE COURT TO GIVE
PRECEDENCE TO THESE CASES AND DIRECTS THE KIND OF JUDGMENT TO BE
RETURNED, SEE NOTE 1, SUPRA, WHICH IS QUITE DIFFERENT IN LANGUAGE, IF
NOT IN EFFECT, FROM THE JUDGMENT A FEDERAL COURT WOULD RENDER.  IT IS
CLEAR TO US THAT THE LEGISLATURE OF OKLAHOMA WAS CONSENTING TO SUIT IN
ITS OWN COURTS ONLY.  CHANDLER V. DIX, 194 U.S. 590. 

SMITH V. REEVES, SUPRA, P. 445, HOLDS THAT AN ACT OF A STATE IS VALID
WHICH LIMITS TO ITS OWN COURTS SUITS AGAINST IT TO RECOVER TAXES. 
THERE CALIFORNIA'S INTENTION TO SO LIMIT WAS MADE MANIFEST BY
AUTHORIZING THE STATE OFFICER TO DEMAND TRIAL IN THE SUPERIOR COURT OF
SACRAMENTO COUNTY.  ATCHISON, T. & S.F. RY. CO. V. O'CONNOR, CONSIDERED
ABOVE AT P. 53, IS NOT APPLICABLE SINCE IT WAS NOT A SUIT AGAINST THE
STATE. 

PETITIONER URGES THAT SMYTH V. AMES, 169 U.S. 466, 517, AND REAGAN V.
FARMERS' LOAN & TRUST CO., 154 U.S. 362, 391, 392, ARE PRECEDENTS WHICH
LEAD TO A CONTRARY CONCLUSION ON THIS ISSUE OF THE SUABILITY OF
OKLAHOMA IN THE DISTRICT COURT OF THE UNITED STATES.  THE FORMER IS
CLEARLY INAPPOSITE.  THAT CASE INVOLVED PROCEEDINGS TO ENJOIN
ENFORCEMENT OF AN ALLEGEDLY UNCONSTITUTIONAL STATE STATUTE PROVIDING
FOR INTRASTATE RAILROAD RATES.  SINCE THE STATE ACT PROVIDED A REMEDY,
THE STATE TOOK THE POSITION THAT FEDERAL EQUITY JURISDICTION WAS
OUSTED.  THIS COURT HELD THE FEDERAL EQUITY JURISDICTION CONTINUED TO
RESTRAIN UNCONSTITUTIONAL ACTS BY STATE OFFICERS WHICH THREATENED
IRREPARABLE DAMAGE.  PP. 474, 477, 515-19.    IN THE REAGAN CASE, A
PROCEEDING FOR INJUNCTION TO RESTRAIN THE MEMBERS OF THE TEXAS RAILROAD
COMMISSION FROM ENFORCING RATES WHICH WERE ALLEGED TO BE
UNCONSTITUTIONAL WAS ALLOWED TO BE MAINTAINED IN EQUITY IN A FEDERAL
COURT.  THIS COURT SAID IT WAS MAINTAINABLE AGAINST THE DEFENDANTS BOTH
UNDER THE GENERAL EQUITY JURISDICTION OF THE FEDERAL COURTS AND UNDER
THE PROVISIONS OF THE STATE STATUTE WHICH ALLOWED REVIEW "IN A COURT OF
COMPETENT JURISDICTION IN TRAVIS COUNTY, TEXAS.  ...  "  IT WAS THOUGHT
THAT THE UNITED STATES CIRCUIT COURT, SITTING IN TRAVIS COUNTY, WAS
COVERED BY THIS LANGUAGE.  AS IT WAS CONCLUDED, HOWEVER, THAT THIS WAS
NOT A SUIT AGAINST THE STATE, PAGE 392, WE DO NOT FEEL IMPELLED TO
EXTEND THE RULING OF THE REAGAN CASE ON THIS ALTERNATIVE BASIS OF
JURISDICTION TO A SUIT, SUCH AS THIS, AGAINST A STATE FOR RECOVERY OF
TAXES. 

GUNTER V. ATLANTIC COAST LINE, 200 U.S. 273, IS ALSO
DISTINGUISHABLE.  THERE THE ATTORNEY GENERAL OF SOUTH CAROLINA APPEARED
IN A FEDERAL COURT TO ANSWER FOR THE STATE IN AN INJUNCTION SUIT UNDER
THE AUTHORITY OF A STATUTE WHICH READ AS FOLLOWS:  "IF THE STATE BE
INTERESTED IN THE REVENUE IN SAID ACTION, THE COUNTY AUDITOR SHALL,
IMMEDIATELY UPON THE COMMENCEMENT OF SAID ACTION, INFORM THE AUDITOR OF
STATE OF ITS COMMENCEMENT, OF THE ALLEGED CAUSE THEREOF, AND THE
AUDITOR OF STATE SHALL SUBMIT THE SAME TO THE ATTORNEY GENERAL, WHO
SHALL DEFEND SAID ACTION FOR AND ON BEHALF OF THE STATE."  P. 286. 

THIS COURT CONSTRUED THIS TO CONSENT TO AN APPEARANCE IN THE FEDERAL
COURT AND HELD ITS DECISION RES JUDICATA AGAINST THE STATE AND ADDED AT
P. 287: 

"IF THERE WERE DOUBT - WHICH WE THINK THERE IS NOT - AS TO THE
CONSTRUCTION WHICH WE GIVE TO THE ACT OF 1868, THAT DOUBT IS ENTIRELY
DISPELLED BY A CONSIDERATION OF THE CONTEMPORANEOUS INTERPRETATION
GIVEN TO THE ACT BY THE OFFICIALS CHARGED WITH ITS EXECUTION, BY THE
VIEW WHICH THIS COURT TOOK AS TO THE REAL PARTY IN INTEREST ON THE
RECORD IN THE PEGUES CASE, AND BY THE ACTION AS WELL AS NON-ACTION
WHICH FOLLOWED THE DECISION OF THAT CASE BY THE STATE GOVERNMENT IN ALL
ITS DEPARTMENTS THROUGH A LONG PERIOD OF YEARS." 

THE ADMINISTRATIVE CONSTRUCTION BY A STATE OF THESE STATUTES OF
CONSENT HAVE INFLUENCE IN DETERMINING OUR CONCLUSIONS.  CF. FARISH V.
STATE BANKING BOARD, 235 U.S. 498, 512; RICHARDSON V. FAJARDO SUGAR
CO., 241 U.S. 44, 47; MISSOURI V. FISKE, 290 U.S. 18, 24. 

IT MAY BE WELL TO ADD THAT THE CONSTRUCTION GIVEN THE OKLAHOMA
STATUTE LEAVES OPEN THE ROAD TO REVIEW IN THIS COURT ON CONSTITUTIONAL
GROUNDS AFTER THE ISSUES HAVE BEEN PASSED UPON BY THE STATE COURTS. 
CHANDLER V. DIX, 194 U.S. 590, 592; SMITH V. REEVES, 178 U.S. 436,
445. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS VACATED AND THE CAUSE
IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE
COMPLAINT FOR WANT OF JURISDICTION. 

FN1  "12665.  PAYMENT UNDER PROTEST WHERE RELIEF BY APPEAL NOT
PROVIDED - ACTION TO RECOVER. 

"IN ALL CASES WHERE THE ILLEGALITY OF THE TAX IS ALLEGED TO ARISE BY
REASON OF SOME ACTION FROM WHICH THE LAWS PROVIDE NO APPEAL, THE
AGGRIEVED PERSON SHALL PAY THE FULL AMOUNT OF THE TAXES AT THE TIME AND
IN THE MANNER PROVIDED BY LAW, AND SHALL GIVE NOTICE TO THE OFFICER
COLLECTING THE TAXES SHOWING THE GROUNDS OF COMPLAINT AND THAT SUIT
WILL BE BROUGHT AGAINST THE OFFICER FOR RECOVERY OF THEM.  IT SHALL BE
THE DUTY OF SUCH COLLECTING OFFICER TO HOLD SUCH TAXES SEPARATE AND
APART FROM ALL OTHER TAXES COLLECTED BY HIM, FOR A PERIOD OF THIRTY
DAYS AND IF WITHIN SUCH TIME SUMMONS SHALL BE SERVED UPON SUCH OFFICER
IN A SUIT FOR RECOVERY OF SUCH TAXES, THE OFFICER SHALL FURTHER HOLD
SUCH TAXES UNTIL THE FINAL DETERMINATION OF SUCH SUIT.  ALL SUCH SUITS
SHALL BE BROUGHT IN THE COURT HAVING JURISDICTION THEREOF, AND THEY
SHALL HAVE PRECEDENCE THEREIN; IF, UPON FINAL DETERMINATION OF ANY SUCH
SUIT, THE COURT SHALL DETERMINE THAT THE TAXES WERE ILLEGALLY
COLLECTED, AS NOT BEING DUE THE STATE, COUNTY OR SUBDIVISION OF THE
COUNTY, THE COURT SHALL RENDER JUDGMENT SHOWING THE CORRECT AND LEGAL
AMOUNT OF TAXES DUE BY SUCH PERSON, AND SHALL ISSUE SUCH ORDER IN
ACCORDANCE WITH THE COURT'S FINDINGS, AND IF SUCH ORDER SHOWS THAT THE
TAXES SO PAID ARE IN EXCESS OF THE LEGAL AND CORRECT AMOUNT DUE, THE
COLLECTING OFFICER SHALL PAY TO SUCH PERSON THE EXCESS AND SHALL TAKE
HIS RECEIPT THEREFOR." 

FN2  THERE IS HERE NO WANT OF JURISDICTION OF THE PARTIES OR SUBJECT
MATTER.  WE ARE NOT PASSING UPON A CERTIFICATION OF AN ISSUE AS TO
JURISDICTION SUCH AS AROSE UNDER THE ACT OF MARCH 3, 1891, SEC. 5, 26
STAT. 827, IN ILLINOIS CENTRAL R. CO. V. ADAMS, 180 U.S. 28, 37.  IF
THIS IS A SUIT AGAINST THE STATE, A FAILURE TO SHOW THE STATE'S CONSENT
TO BE SUED IN THE FACE OF THIS ANSWER WOULD BE FATAL.  CF. BERRYESSA
CATTLE CO. V. SUNSET PACIFIC OIL CO., 87 F.2D 972, 974. 

FN3  PENNOYER V. MCCONNAUGHY, 140 U.S. 1, 10.  COMPARE LOUISIANA V.
JUMEL, 107 U.S. 711, 726. 

FN4  BOARD OF COMMISSIONERS V. WARD, 68 OKLA. 287, 288, 173 P. 1050;
BROADWELL V. BOARD OF COMMISSIONERS, 71 OKLA. 162, 163, 175 P. 828; CF.
WARD V. LOVE COUNTY, 253 U.S. 17, 22; BROADWELL V. CARTER COUNTY, 253
U.S. 25; CARPENTER V. SHAW, 280 U.S. 363, 369; RAILROAD CO. V.
COMMISSIONERS, 98 U.S. 541, 544; STRATTON V. ST. LOUIS S.W. RY. CO.,
284 U.S. 530, 532. 

FN5  KEIFER & KEIFER V. R.F.C., 306 U.S. 381, IS NOT TO THE
CONTRARY.  WHEN AUTHORITY TO SUE IS GIVEN, THAT AUTHORITY IS LIBERALLY
CONSTRUED TO ACCOMPLISH ITS PURPOSE.  UNITED STATES V. SHAW, 309 U.S.
495, 501. 

FN6  CF. MATTHEWS V. RODGERS 284 U.S. 521, 525.  THE FEDERAL
GOVERNMENT'S CONSENT TO SUIT AGAINST ITSELF, WITHOUT MORE, IN A FIELD
OF FEDERAL POWER DOES NOT AUTHORIZE A SUIT IN A STATE COURT.  STANLEY
V. SCHWALBY, 162 U.S. 255, 270; MINNESOTA V. UNITED STATES, 305 U.S.
382, 384, 389. 

FN7  SEE ALSO SESSION LAWS 1913, CH. 240, ART. 1, SEC. 7. 

MR. JUSTICE FRANKFURTER, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
ROBERTS CONCUR, DISSENTING: 

TO AVOID THE IMPOSITION OF PENALTIES AND OTHER SERIOUS HAZARDS, THE
PLAINTIFF PAID MONEY UNDER CLAIM OF A TAX WHICH OKLAHOMA, WE MUST
ASSUME, HAD NO POWER TO EXACT.  CONCEDEDLY, HE COULD SUE TO RECOVER THE
MONEYS SO PAID TO THE DEFENDANT, A TAX COLLECTOR, IN A STATE COURT IN
OKLAHOMA.  BUT TO ALLOW THE SUIT TO BE BROUGHT IN A FEDERAL COURT
SITTING IN OKLAHOMA WOULD DEROGATE, THIS COURT NOW HOLDS, FROM THE
SOVEREIGNTY OF OKLAHOMA.  SUCH A RESULT, I BELIEVE, DERIVES FROM AN
EXCESSIVE REGARD FOR FORMALISM AND FROM A DISREGARD OF THE WHOLE TREND
OF LEGISLATION, ADJUDICATION AND LEGAL THOUGHT IN SUBJECTING THE
COLLECTIVE RESPONSIBILITY OF SOCIETY TO THOSE RULES OF LAW WHICH GOVERN
AS BETWEEN MAN AND MAN. 

TO REPEAT, THIS IS A SIMPLE SUIT TO GET BACK MONEY FROM A COLLECTOR
WHO FOR PRESENT PURPOSES HAD NO RIGHT TO DEMAND IT.  SO FAR AS THE
FEDERAL FISCAL SYSTEM IS CONCERNED, THIS COMMON LAW REMEDY HAS BEEN
ENFORCED THROUGHOUT OUR HISTORY, BARRING ONLY A BRIEF INTERRUPTION. 
FN1  SEE UNITED STATES V. NUNNALLY INVESTMENT CO., 316 U.S. 258.  AND
IF, INSTEAD OF AVOIDING THE SERIOUS CONSEQUENCES OF NOT PAYING THIS
STATE TAX, THE PLAINTIFF HAD RESISTED PAYMENT AND SOUGHT AN INJUNCTION
AGAINST THE TAX COLLECTOR FOR SEEKING TO ENFORCE THE UNCONSTITUTIONAL
TAX, UNDER APPROPRIATE CIRCUMSTANCES THE FEDERAL COURTS WOULD NOT HAVE
BEEN WITHOUT JURISDICTION.  SEE, E.G., WESTERN UNION TELEGRAPH CO. V.
TRAPP, 186 F. 114; WARD V. LOVE COUNTY, 253 U.S. 17; CARPENTER V. SHAW,
280 U.S. 363.  FINALLY, AS I READ THE OPINION OF THE COURT, EVEN A SUIT
OF THIS VERY NATURE FOR THE RECOVERY OF MONEY PAID FOR A DISPUTED TAX
WILL LIE AGAINST THE COLLECTOR IN WHAT IS CALLED HIS INDIVIDUAL
CAPACITY; THAT IS, A SUIT AGAINST THE SAME PERSON ON THE SAME CAUSE OF
ACTION FOR THE SAME REMEDY CAN BE BROUGHT, IF ONLY DIFFERENTLY
ENTITLED.  IN VIEW OF THE HISTORY OF SUCH A SUIT AS THIS AND OF THE
INCONGRUOUS CONSEQUENCES OF DISALLOWING IT IN THE FORM IN WHICH IT WAS
A CASE IN THE FEDERAL COURT IN OKLAHOMA, THE CLAIMS OF SOVEREIGNTY
WHICH ARE SOUGHT TO BE RESPECTED MUST SURELY BE ATTENUATED AND
CAPRICIOUS. 

THE ELEVENTH AMENDMENT HAS PUT STATE IMMUNITY FROM SUIT INTO THE
CONSTITUTION.  THEREFORE, IT IS NOT IN THE POWER OF INDIVIDUALS TO
BRING ANY STATE INTO COURT - THE STATE'S OR THAT OF THE UNITED STATES -
EXCEPT WITH ITS CONSENT.  BUT CONSENT DOES NOT DEPEND ON SOME
RITUALISTIC FORMULA.  NOR ARE ANY WORDS NEEDED TO INDICATE SUBMISSION
TO THE LAW OF THE LAND.  THE READINESS OR RELUCTANCE WITH WHICH COURTS
FIND SUCH CONSENT HAS NATURALLY BEEN INFLUENCED BY PREVAILING VIEWS
REGARDING THE MORAL SANCTION TO BE ATTRIBUTED TO A STATE'S FREEDOM FROM
SUABILITY.  WHETHER THIS IMMUNITY IS AN ABSOLUTE SURVIVAL OF THE
MONARCHIAL PRIVILEGE, OR IS A MANIFESTATION MERELY OF POWER, OR RESTS
ON ABSTRACT LOGICAL GROUNDS, SEE KAWANANAKOA V. POLYBLANK, 205 U.S.
349, IT UNDOUBTEDLY RUNS COUNTER TO MODERN DEMOCRATIC NOTIONS OF THE
MORAL RESPONSIBILITY OF THE STATE.  ACCORDINGLY, COURTS REFLECT A
STRONG LEGISLATIVE MOMENTUM IN THEIR TENDENCY TO EXTEND THE LEGAL
RESPONSIBILITY OF GOVERNMENT AND TO CONFIRM MAITLAND'S BELIEF,
EXPRESSED NEARLY FIFTY YEARS AGO, THAT "IT IS A WHOLESOME SIGHT TO SEE
'THE CROWN' SUED AND ANSWERING FOR ITS TORTS."  3 MAITLAND, COLLECTED
PAPERS, 263.  FN2 

ASSUMING THAT THE PROCEEDING IN THIS CASE TO RECOVER FROM THE
INDIVIDUAL MONEYS DEMANDED BY HIM IN DEFIANCE OF THE CONSTITUTION IS A
SUIT AGAINST THE STATE, COMPARE EX PARTE YOUNG, 209 U.S. 123, 155;
ATCHISON, T. & S.F. RY. CO. V. O'CONNOR, 223 U.S. 280, OKLAHOMA HAS
CONSENTED THAT HE BE SUED.  THE ONLY QUESTION THEREFORE IS AS TO THE
SCOPE OF THE CONSENT.  HAS SHE CONFINED THE RIGHT TO SUE TO HER OWN
COURTS AND EXCLUDED THE FEDERAL COURTS WITHIN HER BOUNDARIES?  SHE HAS
NOT SAID SO.  IS SUCH RESTRICTION INDICATED BY PRACTICAL CONSIDERATIONS
IN THE ADMINISTRATION OF STATE AFFAIRS?  IF IT MAKES ANY DIFFERENCE TO
OKLAHOMA WHETHER THIS SUIT AGAINST A TAX COLLECTOR IS PRESSED IN AN
OKLAHOMA STATE COURT RATHER THAN IN A FEDERAL COURT SITTING IN
OKLAHOMA, THE DIFFERENCE HAS NOT BEEN REVEALED.  THERE IS HERE AN
ENTIRE ABSENCE OF THE CONSIDERATIONS THAT LED TO THE DECISION IN
BURFORD V. SUN OIL CO., 319 U.S. 315.  THERE IT WAS DEEMED DESIRABLE,
AS A MATTER OF DISCRETION, THAT A FEDERAL EQUITY COURT SHOULD STEP
ASIDE AND LEAVE A SPECIALIZED SYSTEM OF STATE ADMINISTRATION TO
FUNCTION.  HERE THE SUIT IN A FEDERAL COURT WOULD NOT SUPPLANT A
SPECIALLY ADAPTABLE STATE SCHEME OF ADMINISTRATION NOR BRING INTO PLAY
THE EXPERT KNOWLEDGE OF A STATE COURT REGARDING LOCAL CONDITIONS.  THE
SUBJECT MATTER AND THE COURSE OF THE LITIGATION IN THE FEDERAL COURT
WOULD BE PRECISELY THE SAME AS IN THE STATE COURT.  THE CASE WOULD
MERELY BE ARGUED IN A DIFFERENT BUILDING AND BEFORE A DIFFERENT JUDGE. 
LANGUAGE RESTRICTIVE OF SUIT IN A FEDERAL COURT IS LACKING, AND
INTRINSIC POLICY DOES NOT SUGGEST RESTRICTIVE INTERPRETATION TO
WITHDRAW FROM A FEDERAL COURT QUESTIONS OF FEDERAL CONSTITUTIONAL LAW. 

LEGISLATION GIVING CONSENT TO SUE IS NOT TO BE TREATED IN THE SPIRIT
IN WHICH SEVENTEENTH CENTURY CRIMINAL PLEADING WAS CONSTRUED.  ONLY BY
SUCH OVERSTRAINED RENDERING OF THE OKLAHOMA STATUTE DOES THE COURT
FINANY ACHIEVE EXCLUSION OF THE RIGHT OF THE PLAINTIFF TO GO TO A
FEDERAL COURT.  TO THE LANGUAGE OF THAT STATUTE I NOW TURN.  BY SEC.
12665 OKLAHOMA STATUTES, 1931, THE STATE AUTHORIZED AN ACTION TO
RECOVER MONEYS ILLEGALLY EXACTED AS A TAX, IN A SITUATION LIKE THE
PRESENT, WHERE THE EXACTION IS ONE "FROM WHICH THE LAWS PROVIDE NO
APPEAL."  THE RELEVANT JURISDICTIONAL PROVISION IS AS FOLLOWS:  "ALL
SUCH SUITS SHALL BE BROUGHT IN THE COURT HAVING JURISDICTION THEREOF,
AND THEY SHALL HAVE PRECEDENCE THEREIN.  ...  "  THE PART THAT THE
FEDERAL COURTS PLAY IN THE GRANT OF SUCH JURISDICTION BY THE STATES IS
NOT A NEW PROBLEM.  WITH HIS CUSTOMARY HARDHEADEDNESS CHIEF JUSTICE
WAITE, FOR THIS COURT, STATED THE GUIDING CONSIDERATION IN ASCERTAINING
THE RELATION OF THE FEDERAL COURT WITHIN A STATE TO THE JUDICIAL
PROCESS RECOGNIZED BY THAT STATE:  "WHILE THE CIRCUIT COURT MAY NOT BE
TECHNICALLY A COURT OF THE COMMONWEALTH, IT IS A COURT WITHIN IT; AND
THAT, AS WE THINK, IS ALL THE LEGISLATURE INTENDED TO PROVIDE FOR."  EX
PARTE SCHOLLENBERGER, 96 U.S. 369, 377.  THIS CONCEPTION OF A FEDERAL
COURT AS A COURT WITHIN THE STATE OF ITS LOCATION HAS EVER SINCE
DOMINATED OUR DECISIONS.  SEE, E.G., MADISONVILLE TRACTION CO. V.
MINING CO., 196 U.S. 239, 255-56; NEIRBO CO. V. BETHLEHEM CORP., 308
U.S. 165, 171.  IT IS A CONCEPTION WHICH HAS BEEN ACTED UPON BY STATE
LEGISLATURES.  FOR JURISDICTIONAL PURPOSES FEDERAL COURTS HAVE BEEN
ASSIMILATED TO THE COURTS OF THE STATES IN WHICH THEY MAY SIT.  WHEN WE
ARE DEALING WITH JURISDICTIONAL MATTERS LEGISLATION SHOULD BE
INTERPRETED IN THE LIGHT OF SUCH PROFESSIONAL HISTORY.  EVEN IF AN
AMBIGUITY COULD BE SQUEEZED OUT OF A GRANT OF JURISDICTION WHICH
APPLIES SO APTLY TO A FEDERAL COURT IN OKLAHOMA AS TO AN OKLAHOMA STATE
COURT - "SUITS SHALL BE BROUGHT IN THE COURT HAVING JURISDICTION
THEREOF" - NEITHER LOGIC NOR HISTORY NOR REASON COUNSELS AN
INTERPRETATION THAT ATTRIBUTES TO THE STATE HOSTILITY AGAINST A SUIT IN
A FEDERAL COURT ON AN EXCLUSIVELY FEDERAL RIGHT AS TO WHICH THE LAST
SAY IN ANY EVENT BELONGS TO A FEDERAL COURT.  FN3    IN THE PAST, EVEN
WHEN THE JURISDICTIONAL GRANT HAS BEEN COUCHED IN LANGUAGE GIVING
SUBSTANTIAL GROUND FOR THE ARGUMENT OF RESTRICTION OF JURISDICTION TO
THE STATE COURT, THIS COURT HAS NOT FOUND DENIAL BY A STATE OF THE
RIGHT TO GO TO A FEDERAL COURT WITHIN THAT STATE WHEN IT IN FACT OPENED
THE DOOR OF ITS OWN COURTS.  THUS, IN MADISONVILLE TRACTION CO. V.
MINING CO., SUPRA, A KENTUCKY STATUTE REQUIRED, AMONG OTHER THINGS,
APPOINTMENT OF COMMISSIONERS IN A CONDEMNATION PROCEEDING BY THE COUNTY
COURT, EXAMINATION OF THE REPORT AT ITS FIRST REGULAR TERM, ISSUANCE OF
ORDERS IN CONFORMITY WITH THE KENTUCKY CIVIL CODE OF PRACTICE AND
ALLOWANCE OF APPEALS FROM THE COUNTY COURTS.  AND YET THIS COURT HELD,
AS A MATTER OF CONSTRUCTION, THAT IT WAS "NOT TO BE IMPLIED FROM THE
STATUTE IN QUESTION THAT THE STATE INTENDED TO EXCLUDE  ...  THE
FEDERAL COURTS."  196 U.S. AT 256.  THE SECTION NOW UNDER CONSIDERATION
IS ONLY ONE OF SEVERAL STATUTORY PROVISIONS FOR CHALLENGING LIKE TAX
ASSESSMENTS IN COURTS.  IN ALL THE OTHER PROVISIONS, THE JURISDICTION
IS EXPLICITLY GIVEN ONLY TO STATE COURTS.  SEE, E.G., SECS. 12651,
12660, 12661.  IF IN SEC. 12665 OKLAHOMA HAS SEEN FIT TO ALLOW SUITS TO
BE BROUGHT "IN THE COURT HAVING JURISDICTION THEREOF," WHICH AS A
MATTER OF FEDERAL JURISDICTIONAL LAW CERTAINLY INCLUDES THE FEDERAL
COURT IN OKLAHOMA, AND HAS NOT SEEN FIT TO DESIGNATE THE STATE COURTS
FOR SUCH JURISDICTION, WHY SHOULD THIS COURT INTERPOLATE A RESTRICTION
WHICH THE OKLAHOMA LEGISLATURE HAS OMITTED?  THE FACT THAT THE
LEGISLATURE HAS ALSO PROVIDED THAT SUCH SUITS "SHALL HAVE PRECEDENCE"
IS NO MORE EMBARRASSMENT TO FEDERAL JURISDICTION THAN TO STATE
JURISDICTION.  THAT IS MERELY AN ADMONITION TO COURTS OF THE IMPORTANCE
OF DISPOSING OF LITIGATION AFFECTING REVENUE WITH ALL CONVENIENT
DISPATCH.  NOR IS THERE ANY OTHER PROVISION OF THE STATUTE GIVING THIS
RIGHT OF ACTION THAT REMOTELY REQUIRES A PROCEDURE TO BE FOLLOWED OR
RELIEF TO BE GIVEN PECULIAR TO STATE COURTS OR DIFFERENT FROM
ESTABLISHED PROCEDURE AND RELIEF IN THE FEDERAL COURTS.  ONLY ON THE
ASSUMPTION THAT FEDERAL COURTS ARE ALIEN COURTS IS THERE ANYTHING IN
SEC. 12665 THAT IS NOT AS SUITED TO A PROCEEDING IN A FEDERAL COURT AS
IT IS TO ONE IN A STATE COURT. 

THE SITUATION THUS PRESENTED BY THE OKLAHOMA LEGISLATION IS VERY
DIFFERENT FROM THAT WHICH WAS HERE IN CHANDLER V. DIX, 194 U.S. 590. 
THERE A SUIT WAS BROUGHT AGAINST STATE OFFICIALS TO REMOVE A CLOUD ON
TITLE TO LANDS CLAIMED BY THE STATE.  THE RELIEF THAT WAS SOUGHT AND
THE PROCEDURE FOR PURSUING IT PLAINLY INDICATED "THAT THE LEGISLATURE
HAD IN MIND ONLY PROCEEDINGS IN THE COURTS OF THE STATE.  A COPY OF THE
COMPLAINT IS TO BE SERVED UPON THE PROSECUTING ATTORNEY, WHO IS TO SEND
A COPY THEREOF WITHIN FIVE DAYS TO THE AUDITOR GENERAL, AND THIS IS TO
BE IN LIEU OF SERVICE OF PROCESS.  IT THEN IS LEFT TO THE DISCRETION OF
THE AUDITOR GENERAL TO CAUSE THE ATTORNEY GENERAL TO REPRESENT HIM, AND
IT IS PROVIDED THAT IN SUCH SUITS NO COSTS SHALL BE TAXED.  THESE
PROVISIONS WITH REGARD TO PROCEDURE AND COSTS SHOW THAT THE STATUTE IS
DEALING WITH A MATTER SUPPOSED TO REMAIN UNDER STATE CONTROL.  ...
(THE) STATUTE DOES NOT WARRANT THE BEGINNING OF A SUIT IN THE FEDERAL
COURT TO SET ASIDE THE TITLE OF THE STATE."  194 U.S. AT 591-592.  THE
MARKED DIFFERENCE BETWEEN THE MICHIGAN STATUTE AND THIS OKLAHOMA
STATUTE IS FURTHER EVIDENCED BY THE FACT THAT SEC. 12665 GIVES AN
ACTION TO RECOVER NOT MERELY ILLEGAL STATE TAXES BUT ALSO TAXES OF THE
"COUNTY OR SUB-DIVISION OF THE COUNTY" THAT HAVE BEEN ILLEGALLY
COLLECTED.  BUT COUNTIES OR THEIR SUBDIVISIONS DO NOT ENJOY IMMUNITY
FROM SUIT.  LINCOLN COUNTY V. LUNING, 133 U.S. 529; SEATTLE V. OREGON &
WASHINGTON R. CO., 255 U.S. 56, 71.  IF THE OTHER JURISDICTIONAL
REQUIREMENTS ARE PRESENT, THEY CAN BE SUED IN A FEDERAL COURT WITHOUT
THE LEAVE OF OKLAHOMA.  IT IS NOT, I SUBMIT, A RATIONAL WAY TO CONSTRUE
THE OKLAHOMA STATUTE, DEALING WITH A PARTICULAR TYPE OF ILLEGAL
EXACTION RAISING THE SAME KIND OF ISSUE AND INVOLVING THE SAME
PROCEDURE.  SO AS TO RECOGNIZE JURISDICTION OF FEDERAL COURTS OVER
SUITS AGAINST THE COUNTY AND ITS SUB-DIVISION BUT TO FIND A PURPOSE TO
EXCLUDE SUITS AS TO ILLEGAL STATE EXACTIONS. 

I HAVE PROCEEDED ON THE ASSUMPTION THAT THE ACTION BELOW WAS UNDER
SEC. 12665, AND AS SUCH AN ACTION AGAINST THE STATE.  BUT THE SUIT WAS
NOT BROUGHT UNDER SEC. 12665.  IT WAS BROUGHT AS AN ORDINARY COMMON LAW
ACTION FOR THE RECOVERY OF MONEY AGAINST AN OFFICER ACTING UNDER AN
UNCONSTITUTIONAL STATUTE.  THE DEFENDANT ANSWERED THE SUIT, BUT DID NOT
CLAIM THE STATE'S IMMUNITY FROM SUIT AND THE COURT'S RESULTING LACK OF
JURISDICTION.  WHAT IS EVEN MORE SIGNIFICANT IS THAT HE DID ALLEGE LACK
OF JURISDICTION ON ANOTHER GROUND NOT NOW RELEVANT.  IN A WORD, THE
DEFENDANT DID NOT CLAIM, ON BEHALF OF THE STATE, THE IMMUNITY WHICH
THIS COURT NOW AFFORDS HIM.  HE DID NOT EVEN MAKE THIS CLAIM AT THE PRE
TRIAL CONFERENCE AND THE CLAIM DID NOT EMERGE AS ONE OF THE ISSUES
DEFINED BY THE PRE-TRIAL CONFERENCE UNDER RULE 16.  IN DISPOSING OF THE
CASE, THE JUDGE INTERPRETED THE ACTION AS HAVING BEEN BROUGHT UNDER
SEC. 12665, ALTHOUGH THE PLEADINGS GAVE NO WARRANT FOR SUCH CONCLUSION,
AND ON SUCH INTERPRETATION, HE FOUND THAT THE DEFENDANT COULD CLAIM AND
HAD NOT WAIVED OKLAHOMA'S IMMUNITY.  EVIDENTLY, HOWEVER, THE DISTRICT
COURT WAS NOT CONTENT WITH ITS OWN FINDING OF WANT OF "JURISDICTION"
FOR IT PROCEEDED TO DISPOSE OF THE CONSTITUTIONAL ISSUES ON THEIR
MERITS.  I THINK THAT THE CLAIM OF THE STATE'S IMMUNITY WAS NOT IN THE
CASE UNDER ILLINOIS CENTRAL R. CO. V. ADAMS, 180 U.S. 28, WHICH HELD
THAT IN A SUIT NOMINALLY AGAINST AN INDIVIDUAL SOVEREIGN IMMUNITY IS A
DEFENSE THAT MUST BE RAISED BY APPROPRIATE PLEADING.  DOUBTLESS FOR
THIS REASON, THE JURISDICTIONAL QUESTION ON WHICH THE CASE IS NOW MADE
TO TURN WAS NOT EVEN DISCUSSED BY THE CIRCUIT COURT OF APPEALS. 

THAT COURT, I BELIEVE, PROPERLY PASSED ON THE CONSTITUTIONAL MERITS,
BUT SINCE THE CASE HERE GOES OFF ON JURISDICTION, I INTIMATE NO VIEWS
UPON THEM. 

FN1  THE SWARTWOUT SCANDAL LED TO THE ACT OF MARCH 3, 1839(SEC.  2, 5
STAT. 339, 348), WHICH THIS COURT CONSTRUED AS A WITHDRAWAL OF THE
SUABILITY OF THE COLLECTOR.  CARY V. CURTIS, 3 HOW.  236.  THAT
DECISION WAS RENDERED ON JANUARY 21, 1845, AND CONGRESS PROMPTLY
RESTORED THE OLD LIABILITY.  ACT OF FEB. 26, 1845, C. XXII, 5 STAT.
727.  SEE BROWN, A DISSENTING OPINION OF MR. JUSTICE STORY (1940) 26
VA. L. REV. 759.  AGAIN, IN VIEW OF THE COMPLICATED ADMINISTRATIVE
PROBLEMS RAISED BY THE INVALIDATION OF THE AGRICULTURAL ADJUSTMENT ACT,
CONGRESS DEVISED A SPECIAL SCHEME FOR THE RECOVERY OF THE ILLEGAL
EXACTIONS MADE UNDER THE ACT.  49 STAT. 1747, 7 U.S.C. SEC. 644 ET
SEQ.; ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337. 

FN2  "WITH US EVERY OFFICIAL, FROM THE PRIME MINISTER DOWN TO A
CONSTABLE OR A COLLECTOR OF TAXES, IS UNDER THE SAME RESPONSIBILITY FOR
EVERY ACT DONE WITHOUT LEGAL JUSTIFICATION AS ANY OTHER CITIZEN." 
DOUBTLESS THIS STATEMENT OF DICEY'S, LAW OF THE CONSTITUTION, 8TH ED.,
AT P. 189, 9TH ED. AT P. 193, WAS AN IDEALIZATION OF ACTUALITY.  BUT IN
THE PERSPECTIVE OF OUR TIME ITS VALIDITY AS AN IDEAL HAS GAINED AND NOT
LOST. 

FN3  OF COURSE THE STATE CAN AT ANY TIME WITHDRAW ITS CONSENT TO BE
SUED.  SEE BEERS V. ARKANSAS, 20 HOW.  527.  BUT STATUTES HAVE STEADILY
ENLARGED THE RANGE OF A STATE'S SUABILITY AND RARELY HAS THERE BEEN A
RECESSION.  SEE, GENERALLY, BORCHARD, STATE AND MUNICIPAL LIABILITY IN
TORT - PROPOSED STATUTORY REFORM (1934) 20 A.B.A.J. 747; BORCHARD,
GOVERNMENTAL RESPONSIBILITY IN TORT (1926) 36 YALE L.J. 1, 17, (1927)
36 YALE L.J. 757, 1039, (1928) 28 COL. L. REV. 577, 735. 
..END :




















UNITED STATES V. MITCHELL, 322 U.S. 65 


NOS. 514 AND 515.  ARGUED MARCH 27, 1944.  - DECIDED APRIL 24, 1944.  -
138 F.2D 426, REVERSED. 


1.  PROMPTLY AND SPONTANEOUSLY AFTER A HOUSEBREAKING SUSPECT HAD BEEN
TAKEN INTO CUSTODY BY POLICE OFFICERS AND HAD ARRIVED AT THE POLICE
STATION, HE ADMITTED HIS GUILT AND CONSENTED TO THE OFFICERS'
RECOVERING STOLEN PROPERTY FROM HIS HOME.  HELD THAT THE ADMISSION OF
GUILT AND THE PROPERTY THUS RECOVERED WERE ADMISSIBLE IN EVIDENCE IN A
CRIMINAL PROSECUTION IN A FEDERAL COURT, AND THAT THE ADMISSIBILITY OF
THE EVIDENCE WAS NOT AFFECTED BY THE SUBSEQUENT ILLEGAL DETENTION OF
THE SUSPECT FOR EIGHT DAYS BEFORE ARRAIGNMENT.  MCNABB V. UNITED
STATES, 318 U.S. 332, DISTINGUISHED.  P. 69. 

2.  THE POWER OF THIS COURT TO ESTABLISH RULES GOVERNING THE
ADMISSIBILITY OF EVIDENCE IN THE FEDERAL COURTS IS NOT TO BE USED TO
DISCIPLINE LAW ENFORCEMENT OFFICERS.  P. 70. 

UNITED STATES V. MITCHELL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 321 U.S. 756, TO REVIEW REVERSALS, IN TWO CASES, OF
CONVICTIONS OF HOUSEBREAKING AND LARCENY. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

UNDER EACH OF TWO INDICTMENTS FOR HOUSEBREAKING AND LARCENY, THE
DEFENDANT MITCHELL WAS SEPARATELY TRIED AND CONVICTED, BUT HIS
CONVICTIONS WERE REVERSED BY THE COURT OF APPEALS, 138 F.2D 426, SOLELY
ON THE GROUND THAT THE ADMISSION OF TESTIMONY OF MITCHELL'S ORAL
CONFESSIONS AND OF STOLEN PROPERTY SECURED FROM HIS HOME THROUGH HIS
CONSENT WAS BARRED BY OUR DECISION IN MCNABB V. UNITED STATES, 318 U.S.
332.  IN VIEW OF THE IMPORTANCE TO FEDERAL CRIMINAL JUSTICE OF PROPER
APPLICATION OF THE MCNABB DOCTRINE, WE BROUGHT THE CASE HERE. 

PRACTICALLY THE WHOLE BODY OF THE LAW OF EVIDENCE GOVERNING CRIMINAL
TRIALS IN THE FEDERAL COURTS HAS BEEN JUDGEMADE.  SEE UNITED STATES V.
REID, 12 HOW.  361, AND FUNK V. UNITED STATES, 290 U.S. 371.  NATURALLY
THESE EVIDENTIARY RULES HAVE NOT REMAINED UNCHANGED.  THEY HAVE ADAPTED
THEMSELVES TO PROGRESSIVE NOTIONS OF RELEVANCE IN THE PURSUIT OF TRUTH
THROUGH ADVERSARY LITIGATION, AND HAVE REFLECTED DOMINANT CONCEPTIONS
OF STANDARDS APPROPRIATE FOR THE EFFECTIVE AND CIVILIZED ADMINISTRATION
OF LAW.  AS THIS COURT WHEN MAKING A NEW DEPARTURE IN THIS FIELD TOOK
OCCASION TO SAY A DECADE AGO, "THE PUBLIC POLICY OF ONE GENERATION MAY
NOT, UNDER CHANGED CONDITIONS, BE THE PUBLIC POLICY OF ANOTHER."  FUNK
V. UNITED STATES, SUPRA AT 381.  THE MCNABB DECISION WAS MERELY ANOTHER
EXPRESSION OF THIS HISTORIC TRADITION, WHEREBY RULES OF EVIDENCE FOR
CRIMINAL TRIALS IN THE FEDERAL COURTS ARE MADE A PART OF LIVING LAW AND
NOT TREATED AS A MERE COLLECTION OF WOODEN RULES IN A GAME. 

THAT CASE RESPECTED THE POLICY UNDERLYING ENACTMENTS OF CONGRESS AS
WELL AS THAT OF A MASSIVE BODY OF STATE LEGISLATION WHICH, WHATEVER MAY
BE THE MINOR VARIATIONS OF LANGUAGE, REQUIRE THAT ARRESTING OFFICERS
SHALL WITH REASONABLE PROMPTNESS BRING ARRESTED PERSONS BEFORE A
COMMITTING AUTHORITY.  SUCH LEGISLATION, WE SAID IN THE MCNABB CASE,
"CONSTITUTES AN IMPORTANT SAFEGUARD - NOT ONLY IN ASSURING PROTECTION
FOR THE INNOCENT BUT ALSO IN SECURING CONVICTION OF THE GUILTY BY
METHODS THAT COMMEND THEMSELVES TO A PROGRESSIVE AND SELF-CONFIDENT
SOCIETY.  FOR THIS PROCEDURAL REQUIREMENT CHECKS RESORT TO THOSE
REPREHENSIBLE PRACTICES KNOWN AS THE 'THIRD DEGREE' WHICH, THOUGH
UNIVERSALLY REJECTED AS INDEFENSIBLE, STILL FIND THEIR WAY INTO USE. 
IT AIMS TO AVOID ALL THE EVIL IMPLICATIONS OF SECRET INTERROGATION OF
PERSONS ACCUSED OF CRIME.  IT REFLECTS NOT A SENTIMENTAL BUT A STURDY
VIEW OF LAW ENFORCEMENT.  IT OUTLAWS EASY BUT SELF-DEFEATING WAYS IN
WHICH BRUTALITY IS SUBSTITUTED FOR BRAINS AS AN INSTRUMENT OF CRIME
DETECTION.  A STATUTE CARRYING SUCH PURPOSES IS EXPRESSIVE OF A GENERAL
LEGISLATIVE POLICY TO WHICH COURTS SHOULD NOT BE HEEDLESS WHEN
APPROPRIATE SITUATIONS CALL FOR ITS APPLICATION."  318 U.S. AT 344. 

IN THE CIRCUMSTANCES OF THE MCNABB CASE WE FOUND SUCH AN APPROPRIATE
SITUATION, IN THAT THE DEFENDANTS WERE ILLEGALLY DETAINED UNDER
AGGRAVATING CIRCUMSTANCES:  ONE OF THEM WAS SUBJECTED TO UNREMITTING
QUESTIONING BY HALF A DOZEN POLICE OFFICERS FOR FIVE OR SIX HOURS AND
THE OTHER TWO FOR TWO DAYS.  WE HELD THAT "A CONVICTION RESTING ON
EVIDENCE SECURED THROUGH SUCH A FLAGRANT DISREGARD OF THE PROCEDURE
WHICH CONGRESS HAS COMMANDED CANNOT BE ALLOWED TO STAND WITHOUT MAKING
THE COURTS THEMSELVES ACCOMPLICES IN WILLFUL DISOBEDIENCE OF LAW. 
CONGRESS HAS NOT EXPLICITLY FORBIDDEN THE USE OF EVIDENCE SO PROCURED. 
BUT TO PERMIT SUCH EVIDENCE TO BE MADE THE BASIS OF A CONVICTION IN THE
FEDERAL COURTS WOULD STULTIFY THE POLICY WHICH CONGRESS HAS ENACTED
INTO LAW."  318 U.S. AT 345.  FOR LIKE REASONS IT WAS HELD IN THE
NARDONE CASE THAT WHERE WIRETAPPING IS PROHIBITED BY CONGRESS THE
FRUITS OF ILLEGAL WIRETAPPING CONSTITUTE ILLICIT EVIDENCE AND ARE
THEREFORE INADMISSIBLE.  NARDONE V. UNITED STATES, 302 U.S. 379; 308
U.S. 338.  INEXCUSABLE DETENTION FOR THE PURPOSE OF ILLEGALLY
EXTRACTING EVIDENCE FROM AN ACCUSED, AND THE SUCCESSFUL EXTRACTION OF
SUCH INCULPATORY STATEMENTS BY CONTINUOUS QUESTIONING FOR MANY HOURS
UNDER PSYCHOLOGICAL PRESSURE, WERE THE DECISIVE FEATURES IN THE MCNABB
CASE WHICH LED US TO RULE THAT A CONVICTION ON SUCH EVIDENCE COULD NOT
STAND. 

WE ARE DEALING WITH THE ADMISSIBILITY OF EVIDENCE IN CRIMINAL TRIALS
IN THE FEDERAL COURTS.  REVIEW BY THIS COURT OF STATE CONVICTIONS
PRESENTS A VERY DIFFERENT SITUATION, CONFINED AS IT IS WITHIN VERY
NARROW LIMITS.  OUR SOLE AUTHORITY IS TO ASCERTAIN WHETHER THAT WHICH A
STATE COURT PERMITTED VIOLATED THE BASIC SAFEGUARDS OF THE FOURTEENTH
AMENDMENT.  THEREFORE, IN CASES COMING FROM THE STATE COURTS IN MATTERS
OF THIS SORT, WE ARE CONCERNED SOLELY WITH DETERMINING WHETHER A
CONFESSION IS THE RESULT OF TORTURE, PHYSICAL OR PSYCHOLOGICAL, AND NOT
THE OFFSPRING OF REASONED CHOICE.  HOW DIFFICULT AND OFTEN ELUSIVE AN
INQUIRY THIS IMPLIES, OUR DECISIONS MAKE MANIFEST.  AND FOR THE
IMPORTANT RELATION BETWEEN ILLEGAL INCOMMUNICADO DETENTION AND "THIRD
DEGREE" PRACTICES, SEE IV, REPORT, NATIONAL COMMISSION ON LAW
OBSERVANCE AND ENFORCEMENT (BETTER KNOWN AS THE WICKERSHAM
COMMISSION)(1931) PP. 4, 35 ET SEQ., 152; AND THE DEBATES IN THE HOUSE
OF COMMONS ON THE SAVIDGE CASE, 217 H.C. DEB.  (5TH SER.  1928) PP.
1216-1220, 1303-1339, 1921-1931, AND INQUIRY IN REGARD TO THE
INTERROGATION BY THE POLICE OF MISS SAVIDGE, CMD.  3147(1928); REPORT
OF THE ROYAL COMMISSION ON POLICE POWERS AND PROCEDURE, CMD. 
3297(1929).  BUT UNDER THE DUTY OF FORMULATING RULES OF EVIDENCE FOR
FEDERAL PROSECUTIONS, WE ARE NOT CONFINED TO THE CONSTITUTIONAL
QUESTION OF ASCERTAINING WHEN A CONFESSION COMES OF A FREE CHOICE AND
WHEN IT IS EXTORTED BY FORCE, HOWEVER SUBTLY APPLIED.  SEE UNITED
STATES V. OPPENHEIMER, 242 U.S. 85, 88.  THE MCNABB DECISION WAS AN
EXERCISE OF OUR DUTY TO FORMULATE POLICY APPROPRIATE FOR CRIMINAL
TRIALS IN THE FEDERAL COURTS.  WE ADHERE TO THAT DECISION AND TO THE
VIEWS ON WHICH IT WAS BASED.  (FOR CASES IN WHICH APPLICATIONS OF THE
MCNABB DOCTRINE BY CIRCUIT COURTS OF APPEALS WERE LEFT UNCHALLENGED BY
THE GOVERNMENT, SEE UNITED STATES V. HAUPT, 136 F.2D 661; GROS V.
UNITED STATES, 136 F.2D 878; RUNNELS V. UNITED STATES, 138 F.2D 346.) 

BUT THE FOUNDATIONS FOR APPLICATION OF THE MCNABB DOCTRINE ARE HERE
TOTALLY LACKING.  UNLIKE THE SITUATION IN OTHER COUNTRIES, SEE, FOR
INSTANCE, SECS. 25 AND 26 OF THE INDIAN EVIDENCE ACT, 1872, FN1  UNDER
THE PREVAILING AMERICAN CRIMINAL PROCEDURE, AS WAS POINTED OUT IN THE
MCNABB CASE, "THE MERE FACT THAT A CONFESSION WAS MADE WHILE IN THE
CUSTODY OF THE POLICE DOES NOT RENDER IT INADMISSIBLE."  318 U.S. AT
346.  UNDER THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURTS WERE QUITE
RIGHT IN ADMITTING, FOR THE JURIES' JUDGMENT, THE TESTIMONY RELATING TO
MITCHELL'S ORAL CONFESSIONS AS WELL AS THE PROPERTY RECOVERED AS A
RESULT OF HIS CONSENT TO A SEARCH OF HIS HOME.  AS THE ISSUES COME
BEFORE US THE FACTS ARE NOT IN DISPUTE AND ARE QUICKLY TOLD. 

IN AUGUST AND EARLY OCTOBER 1942, TWO HOUSES IN THE DISTRICT OF
COLUMBIA WERE BROKEN INTO AND FROM EACH PROPERTY WAS STOLEN.  THE TRAIL
OF POLICE INVESTIGATION LED TO MITCHELL WHO WAS TAKEN INTO CUSTODY AT
HIS HOME AT 7 O'CLOCK IN THE EVENING ON MONDAY, OCTOBER 12, 1942, AND
DRIVEN BY TWO POLICE OFFICERS TO THE PRECINCT STATION.  WITHIN A FEW
MINUTES OF HIS ARRIVAL AT THE POLICE STATION, MITCHELL ADMITTED GUILT,
TOLD THE OFFICERS OF VARIOUS ITEMS OF STOLEN PROPERTY TO BE FOUND IN
HIS HOME AND CONSENTED TO THEIR GOING TO HIS HOME TO RECOVER THE
PROPERTY.  FN2  IT IS THESE ADMISSIONS AND THAT PROPERTY WHICH
SUPPORTED THE CONVICTIONS, AND WHICH WERE DEEMED BY THE COURT BELOW TO
HAVE BEEN INADMISSIBLE.  OBVIOUSLY THE CIRCUMSTANCES OF DISCLOSURE BY
MITCHELL ARE WHOLLY DIFFERENT FROM THOSE WHICH BROUGHT ABOUT THE
DISCLOSURES BY THE MCNABBS.  HERE THERE WAS NO DISCLOSURE INDUCED BY
ILLEGAL DETENTION, NO EVIDENCE WAS OBTAINED IN VIOLATION OF ANY LEGAL
RIGHTS, BUT INSTEAD THE CONSENT TO A SEARCH OF HIS HOME, THE PROMPT
ACKNOWLEDGEMENT BY AN ACCUSED OF HIS GUILT, AND THE SUBSEQUENT RUEING
APPARENTLY OF SUCH SPONTANEOUS COOPERATION AND CONCESSION OF GUILT. 

BUT THE CIRCUMSTANCES OF LEGALITY ATTENDING THE MAKING OF THESE ORAL
STATEMENTS ARE NULLIFIED, IT IS SUGGESTED, BY WHAT FOLLOWED.  FOR NOT
UNTIL EIGHT DAYS AFTER THE STATEMENTS WERE MADE WAS MITCHELL ARRAIGNED
BEFORE A COMMITTING MAGISTRATE.  UNDOUBTEDLY HIS DETENTION DURING THIS
PERIOD WAS ILLEGAL.  THE POLICE EXPLANATION OF THIS ILLEGALITY IS THAT
MITCHELL WAS KEPT IN SUCH CUSTODY WITHOUT PROTEST THROUGH A DESIRE TO
AID THE POLICE IN CLEARING UP THIRTY HOUSEBREAKINGS, THE BOOTY FROM
WHICH WAS FOUND IN HIS HOME.  ILLEGALITY IS ILLEGALITY, AND OFFICERS OF
THE LAW SHOULD DEEM THEMSELVES SPECIAL GUARDIANS OF THE LAW.  BUT IN
ANY EVENT, THE ILLEGALITY OF MITCHELL'S DETENTION DOES NOT
RETROACTIVELY CHANGE THE CIRCUMSTANCES UNDER WHICH HE MADE THE
DISCLOSURES.  THESE, WE HAVE SEEN, WERE NOT ELICITED THROUGH
ILLEGALITY.  THEIR ADMISSION, THEREFORE, WOULD NOT BE USE BY THE
GOVERNMENT OF THE FRUITS OF WRONGDOING BY ITS OFFICERS.  BEING
RELEVANT, THEY COULD BE EXCLUDED ONLY AS A PUNITIVE MEASURE AGAINST
UNRELATED WRONGDOING BY THE POLICE.  OUR DUTY IN SHAPING RULES OF
EVIDENCE RELATES TO THE PROPRIETY OF ADMITTING EVIDENCE.  THIS POWER IS
NOT TO BE USED AS AN INDIRECT MODE OF DISCIPLINING MISCONDUCT. 
JUDGMENT REVERSED. 

FN1  SEC. 25:  "NO CONFESSION MADE TO A POLICE OFFICER, SHALL BE
PROVED AS AGAINST A PERSON ACCUSED OF ANY OFFENCE." 

SEC. 26:  "NO CONFESSION MADE BY ANY PERSON WHILST HE IS IN THE
CUSTODY OF A POLICE OFFICER, UNLESS IT BE MADE IN THE IMMEDIATE
PRESENCE OF A MAGISTRATE, SHALL BE PROVED AS AGAINST SUCH PERSON." 

FN2  IN BOTH CASES MITCHELL DENIED THE TESTIMONY OF THE OFFICERS THAT
HE HAD IN FACT MADE PROMPT AND SPONTANEOUS CONFESSION AND CONSENT TO
THE SEARCH OF HIS HOME, AND ON THE BASIS OF SUCH DENIAL MOTIONS WERE
MADE TO EXCLUDE THE EVIDENCE.  THE TRIAL JUDGES RULED THAT WHETHER
THESE STATEMENTS WERE IN FACT MADE IN THE CIRCUMSTANCES NARRATED WERE
QUESTIONS OF FACT FOR THE JURIES.  AS SUCH THEY WERE LEFT TO THE
JURIES, AND WE HERE ACCEPT THEIR VERDICT AS DID THE COURT BELOW. 
MITCHELL, IT MUST BE EMPHASIZED, MERELY DENIED THAT HE MADE THESE
STATEMENTS AND SO DID NOT CONTEST THE TIME OF MAKING THEM.  WHILE AT
THE TRIAL THERE WAS A CLAIM BY MITCHELL THAT HE WAS ABUSED BY THE
POLICE OFFICERS, IN THE STATE OF THE RECORD THAT ISSUE IS NOT HERE. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE CONCUR IN THE RESULT. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE REED: 

AS I UNDERSTAND MCNABB V. UNITED STATES, 318 U.S. 332, AS EXPLAINED
BY THE COURT'S OPINION OF TODAY, THE MCNABB RULE IS THAT WHERE THERE
HAS BEEN ILLEGAL DETENTION OF A PRISONER, JOINED WITH OTHER
CIRCUMSTANCES WHICH ARE DEEMED BY THIS COURT TO BE CONTRARY TO PROPER
CONDUCT OF FEDERAL PROSECUTIONS, THE CONFESSION WILL NOT BE ADMITTED. 
FURTHER, THIS REFUSAL OF ADMISSION IS REQUIRED EVEN THOUGH THE
DETENTION PLUS THE CONDUCT DO NOT TOGETHER AMOUNT TO DURESS OR
COERCION.  IF THE ABOVE UNDERSTANDING IS CORRECT, IT IS FOR ME A
DESIRABLE MODIFICATION OF THE MCNABB CASE. 

HOWEVER, EVEN AS EXPLAINED I DO NOT AGREE THAT THE RULE WORKS A WISE
CHANGE IN FEDERAL PROCEDURE. 

IN MY VIEW DETENTION WITHOUT COMMITMENT IS ONLY ONE FACTOR FOR
CONSIDERATION IN REACHING A CONCLUSION AS TO WHETHER OR NOT A
CONFESSION IS VOLUNTARY.  THE JURISTIC THEORY UNDER WHICH A CONFESSION
SHOULD BE ADMITTED OR BARRED IS BOTTOMED ON THE TESTIMONIAL
TRUSTWORTHINESS OF THE CONFESSION.  IF THE CONFESSION IS FREELY MADE
WITHOUT INDUCEMENT OR MENACE, IT IS ADMISSIBLE.  IF OTHERWISE MADE, IT
IS NOT, FOR IF BROUGHT ABOUT BY FALSE PROMISES OR REAL THREATS, IT HAS
NO WEIGHT AS PROPER PROOF OF GUILT.  WAN V. UNITED STATES, 266 U.S. 1,
14; WILSON V. UNITED STATES, 162 U.S. 613, 622; 3 WIGMORE EVIDENCE
(1940 ED.)  SEC.  882. 

AS THE PRESENT RECORD SHOWS NO EVIDENCE OF SUCH COERCION, I CONCUR IN
THE RESULT. 
..END :
























SOUTHERN RY. CO. V. UNITED STATES, 322 U.S. 72 


NO. 578.  ARGUED MARCH 28, 29, 1944.  - DECIDED APRIL 24, 1944.  - 100
CT.CLS.  175, AFFIRMED. 


UNDER A LAND-GRANT EQUALIZATION AGREEMENT WHEREBY A NON-LAND-GRANT
CARRIER AGREED TO ACCEPT FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY
"THE LOWEST NET RATES LAWFULLY AVAILABLE" OVER LAND-GRANT ROUTES, THE
GOVERNMENT IS ENTITLED TO THE LOWEST RATE WHICH IT COULD HAVE OBTAINED
OVER ANY LAND-GRANT ROUTE, HOWEVER CIRCUITOUS, WHICH COULD HAVE BEEN
USED.  P. 76. 

SOUTHERN RAILWAY CO. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 321 U.S. 758, TO REVIEW A JUDGMENT DENYING RECOVERY IN A
SUIT BY THE RAILROAD COMPANY UPON A LAND GRANT EQUALIZATION AGREEMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1933 PETITIONER, A COMMON CARRIER, ENTERED INTO A "FREIGHT-LAND
GRANT EQUALIZATION AGREEMENT" WITH THE QUARTERMASTER GENERAL, ACTING
FOR THE UNITED STATES.  THIS AGREEMENT WAS MADE UNDER THE AUTHORITY OF
SEC. 22 OF THE INTERSTATE COMMERCE ACT.  24 STAT. 387, 49 U.S.C. SEC.
22.  SO FAR AS MATERIAL HERE, PETITIONER AGREED "TO ACCEPT FOR THE
TRANSPORTATION OF PROPERTY SHIPPED FOR ACCOUNT OF THE GOVERNMENT OF THE
UNITED STATES AND FOR WHICH THE GOVERNMENT OF THE UNITED STATES IS
LAWFULLY ENTITLED TO REDUCED RATES OVER LAND-GRANT ROADS, THE LOWEST
NET RATES LAWFULLY AVAILABLE, AS DERIVED THROUGH DEDUCTIONS ACCOUNT OF
LAND-GRANT DISTANCE FROM THE LAWFUL RATES FILED WITH THE INTERSTATE
COMMERCE COMMISSION APPLYING FROM POINT OF ORIGIN TO DESTINATION AT
TIME OF MOVEMENT." 

FROM THE POINT OF VIEW OF THE CARRIER THE PURPOSE OF THE AGREEMENT
WAS TO GIVE IT A PORTION OF GOVERNMENT BUSINESS WHICH MIGHT HAVE BEEN
ROUTED OVER LAND-GRANT ROUTES.  FN1  LAND-GRANT ROADS WERE UNDER AN
OBLIGATION TO FURNISH TRANSPORTATION TO THE GOVERNMENT FREE OF CHARGE
OR AT REDUCED RATES.  SEE PUBLIC AIDS TO TRANSPORTATION, FEDERAL
COORDINATOR OF TRANSPORTATION (1938), VOL. II, PP. 3-42 FOR A REVIEW OF
THE VARIOUS ACTS OF CONGRESS.  AT THE TIME WHEN THIS AGREEMENT WAS MADE
LAND-GRANT ROADS WERE REQUIRED TO ALLOW THE UNITED STATES 50%
DEDUCTIONS FROM THE COMMERCIAL RATE FOR THE TRANSPORTATION OF PROPERTY
OR TROOPS OF THE UNITED STATES.  FN2  43 STAT. 477, 486, 10 U.S.C. SEC.
1375.  "RAILROADS WHICH COMPETE WITH THE REDUCED-RATE LINES FOUND
THEMSELVES UNABLE TO PARTICIPATE, NOT ONLY IN THE LOCAL TRANSPORTATION
OF FEDERAL TROOPS AND PROPERTY BETWEEN THE TERMINI OF THE REDUCED-RATE
LINES, BUT ALSO IN THROUGH MOVEMENTS FROM AND TO POINTS BEYOND SUCH
TERMINI."  PUBLIC AIDS TO TRANSPORTATION, SUPRA, P. 42.  ACCORDINGLY
MOST OF THOSE ROADS ENTERED INTO LAND-GRANT EQUALIZATION AGREEMENTS
WITH THE UNITED STATES IN ORDER TO GET AS LARGE A SHARE OF THE BUSINESS
AS POSSIBLE.  FN3  SEE SOUTHERN PACIFIC CO. V. UNITED STATES, 307 U.S.
393, 394.  THE ONE INVOLVED IN THE PRESENT CASE IS AN EXAMPLE. 

THIS SUIT INVOLVES 374 SHIPMENTS OF GOVERNMENT PROPERTY OVER
PETITIONER'S LINES AND ITS CONNECTIONS MADE BETWEEN 1934 AND 1938 WHILE
THIS AGREEMENT WAS IN FORCE.  FN4  THERE WERE AVAILABLE IN CASE OF EACH
SHIPMENT SEVERAL ROUTES BETWEEN THE POINT OF ORIGIN AND THE POINT OF
DESTINATION.  PETITIONER'S ROUTE WAS IN GENERAL THE SHORTEST.  BUT
THERE WERE OTHER ROUTES CONTAINING LAND GRANTS OF VARYING PERCENTAGES
WHICH IT WAS POSSIBLE TO USE FOR THESE SHIPMENTS.  AND THE RATES SHOWN
BY TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION FOR FREIGHT
SHIPMENTS BETWEEN THE POINTS IN QUESTION WERE THE SAME (WITH EXCEPTIONS
NOT IMPORTANT HERE) FOR EACH OF THE ALTERNATIVE ROUTES REGARDLESS OF
THE MILEAGE.  PETITIONER COMPUTED ITS CHARGES SO AS TO ALLOW THE RATE
REDUCTIONS TO WHICH THE UNITED STATES WOULD HAVE BEEN ENTITLED HAD IT
ACTUALLY MADE THE SHIPMENTS BY ONE OF THE AVAILABLE, ALTERNATIVE LAND
GRANT ROUTES.  THE UNITED STATES, HOWEVER, CLAIMED GREATER DEDUCTIONS. 
IT SHOWED A LONGER AND MORE CIRCUITOUS ROUTE WHICH COULD HAVE BEEN USED
FN5  AND WHICH CONTAINED MORE LAND-GRANT MILEAGE THAN THE ALTERNATIVE
ROUTE CHOSEN BY PETITIONER.  SINCE THE TARIFF RATES OVER EITHER
ALTERNATIVE ROUTE WERE THE SAME, THE GREATER LAND GRANTS INCLUDED IN
THE ROUTE SELECTED BY THE UNITED STATES RESULTED IN LOWER RATES THAN
THOSE WHICH WERE COMPUTED ON THE BASIS OF THE LAND-GRANT ROUTE SELECTED
BY PETITIONER.  THE UNITED STATES PAID THE LOWER RATES.  PETITIONER
BROUGHT SUIT IN THE COURT OF CLAIMS FOR THE DIFFERENCE BETWEEN THE
AMOUNT PAID AND THE RATES COMPUTED ON THE BASIS OF THE TARIFFS FOR THE
ROUTE WHICH IT HAD SELECTED.  THE COURT OF CLAIMS DENIED RECOVERY.  100
CT. CLS. 175.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED BECAUSE OF THE PUBLIC IMPORTANCE OF THE PROBLEM. 

THE COURT OF CLAIMS FOUND THAT THE CIRCUITOUS ROUTES ON WHICH THE
UNITED STATES BASED ITS COMPUTATIONS COULD HAVE BEEN USED FOR THE
SHIPMENTS IN QUESTION.  BUT PETITIONER CONTENDS THAT SUCH AN
INTERPRETATION OF THE WORD "AVAILABLE" IS UNREASONABLE IN THE PRESENT
CONTEXT AND THAT IT SHOULD BE CONSTRUED TO MEAN "CAPABLE OF BEING
EMPLOYED OR MADE USE OF WITH ADVANTAGE."  IN THAT CONNECTION,
PETITIONER ARGUES THAT IT WOULD HAVE BEEN IMPROVIDENT AND UNECONOMICAL
TO SHIP LIVESTOCK ON SUCH CIRCUITOUS ROUTES AND THAT THOSE ROUTES WOULD
NEVER IN FACT HAVE BEEN USED BY THE UNITED STATES.  IT IS ARGUED,
MOREOVER, THAT THE EQUALIZATION AGREEMENT PROPERLY CONSTRUED REQUIRES
PETITIONER TO EQUALIZE RATES COMPUTED BY LAND-GRANT ROUTES WHICH ARE
COMPETITIVE FOR GOVERNMENT TRAFFIC.  ITS PURPOSE, ACCORDING TO THAT
CONTENTION, WAS TO SECURE FOR PETITIONER TRAFFIC WHICH IN ITS ABSENCE
WOULD BE LIKELY TO MOVE OVER COMPETING LAND-GRANT ROUTES, AS
DISTINGUISHED FROM TRAFFIC WHICH WAS POSSIBLE OF ROUTING OVER THE
CHEAPEST LAND-GRANT ROUTE. 

WE AGREE, HOWEVER, WITH THE COURT OF CLAIMS.  IN THIS CONTEXT THE
"LOWEST NET RATES LAWFULLY AVAILABLE" MEAN TO US THE LOWEST NET RATES
WHICH COULD HAVE BEEN OBTAINED ON THE BASIS OF TARIFFS ON FILE WITH THE
INTERSTATE COMMERCE COMMISSION.  WHETHER SUCH CIRCUITOUS ROUTES AS WERE
EMPLOYED IN THE PRESENT COMPUTATION WOULD HAVE BEEN ACTUALLY USED FOR
THESE SHIPMENTS IN ABSENCE OF THE EQUALIZATION AGREEMENT IS OF COURSE
UNKNOWN.  BUT CIRCUITOUS ROUTING BY THE UNITED STATES IN ORDER TO
OBTAIN THE BENEFITS OF ITS EARLIER LAND-GRANTS TO RAILROADS WAS
APPARENTLY A COMMON PRACTICE.  SEE PUBLIC AIDS TO TRANSPORTATION,
SUPRA, P. 42.  THE RECORDS SHOW THAT THE PRIVILEGE OF OBTAINING THE
BENEFIT OF RATES ON LAND-GRANT ROUTES IS A VALUABLE PRIVILEGE INDEED. 
FN6  WE CANNOT ASSUME THAT THE UNITED STATES INTENDED TO SURRENDER ANY
OF THOSE BENEFITS BY GRANTING THE EQUALIZING CARRIERS MORE FAVORABLE
RATES THAN THOSE TO WHICH IT WAS LAWFULLY ENTITLED ON THE LAND-GRANT
ROUTES, UNLESS THE PURPOSE TO DO SO WAS PLAINLY EXPRESSED.  IT MUST BE
REMEMBERED THAT THE EQUALIZATION AGREEMENT WAS A RATE-MAKING
AGREEMENT.  ITS OBJECT WAS TO DIVERT SHIPMENTS TO THE NON-LAND-GRANT
ROUTE.  THE LAND-GRANT ROUTE WAS CHOSEN MERELY FOR THE PURPOSE OF
COMPUTING THE RATE.  THE FACT THAT IN A GIVEN CASE THE SHIPMENT
PROBABLY WOULD NOT HAVE MOVED OVER THE LAND-GRANT ROUTE IS IMMATERIAL. 
THE UNITED STATES WAS BARGAINING FOR LOW RATES FOR THE SHIPMENT OF ITS
PROPERTY.  IT DID NOT DIFFERENTIATE BETWEEN THE TYPES OF PROPERTY
SHIPPED.  IT DID NOT IN TERMS STATE THAT LAND-GRANT ROUTES, THOUGH
ACTUALLY AVAILABLE, WOULD NOT BE USED IN COMPUTING THE RATE UNLESS THEY
WOULD IN FACT HAVE BEEN CONVENIENT OR PRACTICABLE TO USE FOR THE
PARTICULAR SHIPMENT.  THE STANDARD IT PRESCRIBES IS "THE LOWEST NET
RATES LAWFULLY AVAILABLE."  WE MAY NOT RESOLVE ANY AMBIGUITIES WHICH
MAY LINGER IN THAT PHRASE AGAINST THE UNITED STATES.  CF. SOUTHERN
PACIFIC CO. V. UNITED STATES, SUPRA, P. 401.  WE ARE NOT WARRANTED IN
ASSUMING THAT THE UNITED STATES WAS MORE GENEROUS TO THIS CARRIER THAN
THE LANGUAGE OF THE CONTRACT REQUIRES.  WE MUST ASSUME THAT THE
CONTRACTING OFFICERS FOR THE UNITED STATES DROVE AS PROVIDENT A BARGAIN
AS A READING OF THE AGREEMENT FAIRLY PERMITS. 

AT TIMES THE UNITED STATES HAS MADE EQUALIZATION AGREEMENTS WHICH
WERE MORE FAVORABLE TO THE EQUALIZING CARRIERS THAN THE INSTANT ONE
APPEARS TO BE.  THUS IN 1917 A PASSENGER LAND-GRANT EQUALIZATION
AGREEMENT WAS MADE WITH PETITIONER AND OTHER CARRIERS  FN7  WHEREBY
THEY AGREED TO ACCEPT THE LOWEST NET FARE "LAWFULLY AVAILABLE, AS
DERIVED, THROUGH DEDUCTIONS ACCOUNT LAND-GRANT DISTANCE VIA A USUALLY
TRAVELED ROUTE FOR MILITARY TRAFFIC, FROM A LAWFUL FARE FILED WITH THE
INTERSTATE COMMERCE COMMISSION AS APPLYING FROM POINT OF ORIGIN TO
DESTINATION VIA SUCH ROUTE AT TIME OF MOVEMENT."  THAT AGREEMENT
SUGGESTS THAT WHEN THE UNITED STATES DESIRED TO GIVE EQUALIZING
CARRIERS MORE FAVORABLE RATES THAN THE LOWEST RATES TO WHICH IT WAS
LAWFULLY ENTITLED ON LAND-GRANT ROUTES, IT CHOSE APT WORDS TO EXPRESS
ITS PURPOSE.  IT ALSO GIVES ADDED SIGNIFICANCE TO THE OMISSION OF ANY
SUCH QUALIFICATION IN THE PRESENT AGREEMENT.  IT SUGGESTS THAT IF WE
READ INTO THE AGREEMENT THE QUALIFICATION WHICH THE PETITIONER DESIRES,
WE WOULD REMAKE THE CONTRACT. 

MUCH MATERIAL BEARING ON ADMINISTRATIVE CONSTRUCTION OF VARIOUS TYPES
OF EQUALIZATION AGREEMENTS HAS BEEN PRESSED UPON US.  BUT WE HAVE NOT
RELIED ON IT AS WE FOUND IT INCONCLUSIVE.  AFFIRMED. 

FN1  THE COURT OF CLAIMS MADE THE FOLLOWING FINDING IN THIS CASE:
"THE PURPOSE AND EFFECT OF THE FREIGHT EQUALIZATION AGREEMENTS OF THE
DEFENDANT WITH PLAINTIFF AND WITH OTHER COMMON CARRIERS WAS TO EQUALIZE
RATES ON GOVERNMENT PROPERTY OVER VARIOUS ROUTES SERVING THE SAME POINT
OF ORIGIN AND DESTINATION, WHERE ONE OR MORE OF THOSE ROUTES HAD BEEN
AIDED IN WHOLE OR IN PART BY GRANT OF PUBLIC LANDS, RATES OVER ALL
ROUTES FROM POINT OF ORIGIN TO DESTINATION BEING BROUGHT DOWN TO THE
LEVEL OF THAT OVER THE ROUTE PRODUCING THE LOWEST NET RATE ON ACCOUNT
OF LAND-GRANT DEDUCTION.  THIS ARRANGEMENT WAS DESIGNED TO GIVE THE
EQUALIZING CARRIER A PORTION OF THE GOVERNMENT BUSINESS THAT WAS
POSSIBLE OF ROUTING OVER THE GOVERNING LAND-GRANT ROUTE, AND TO GIVE
THE GOVERNMENT A GREATER RANGE IN CHOICE OF ROUTES WHERE CONSIDERATIONS
OF ECONOMY ENTERED INTO THE SELECTION." 

FN2  BUT SEE SEC. 321 OF THE TRANSPORTATION ACT OF 1940, 54 STAT.
898, 954. 

FN3  PETITIONER'S ROAD INCLUDES 145 MILES OF LAND-GRANTS.  BUT AS
POINTED OUT IN PUBLIC AIDS TO TRANSPORTATION, SUPRA, P. 42, "THE LAND
GRANT RAILROADS ARE PARTIES TO THESE AGREEMENTS FOR THE REASON THAT, IN
MANY INSTANCES, A NON-AIDED PORTION OF A LAND-GRANT RAILROAD COMPETES
WITH A REDUCED-RATE PORTION OF ANOTHER LAND-GRANT RAILROAD." 

FN4  THESE CONSISTED OF 147 SHIPMENTS OF LIVESTOCK BY THE FEDERAL
SURPLUS RELIEF CORPORATION FROM MIDWESTERN POINTS TO SOUTHEASTERN
POINTS; AND 227 SHIPMENTS OF PROPERTY BY THE TENNESSEE VALLEY
AUTHORITY. 

FN5  THUS IN CASE OF THE SHIPMENTS OF LIVESTOCK THE ROUTES ON WHICH
THE UNITED STATES MADE ITS COMPUTATION OF RATES WERE FROM 137 TO ALMOST
700 MILES LONGER THAN THE ONES ACTUALLY USED. 

FN6  SEE PUBLIC AIDS TO TRANSPORTATION, SUPRA, PP. 43-45; KENNY, LAND
GRANT RAILROADS AND THE GOVERNMENT (1933), 9 JOURNAL OF LAND & PUBLIC
UTILITY ECONOMICS 368. 

FN7  SEE MANUAL FOR THE QUARTERMASTER CORPS, 1916(1917), VOL. 2, PP.
223, 230. 
..END :














UNITED STATES V. BALLARD, 322 U.S. 78 


NO. 472.  ARGUED MARCH 3, 6, 1944.  - DECIDED APRIL 24, 1944.  - 138
F.2D 540, REVERSED. 


UPON AN INDICTMENT CHARGING USE OF THE MAILS TO DEFRAUD, AND
CONSPIRACY SO TO DO, RESPONDENTS WERE CONVICTED IN THE DISTRICT COURT. 
THE INDICTMENT CHARGED A SCHEME TO DEFRAUD THROUGH REPRESENTATIONS -
INVOLVING RESPONDENTS' RELIGIOUS DOCTRINES OR BELIEFS - WHICH WERE
ALLEGED TO BE FALSE AND KNOWN BY THE RESPONDENTS TO BE FALSE.  HOLDING
THAT THE DISTRICT COURT HAD RESTRICTED THE JURY TO THE ISSUE OF
RESPONDENTS' GOOD FAITH AND THAT THIS WAS ERROR, THE CIRCUIT COURT OF
APPEALS REVERSED AND GRANTED A NEW TRIAL.  HELD: 

1.  THE ONLY ISSUE SUBMITTED TO THE JURY BY THE DISTRICT COURT WAS
WHETHER RESPONDENTS BELIEVED THE REPRESENTATIONS TO BE TRUE.  P. 84. 

2.  RESPONDENTS DID NOT ACQUIESCE IN THE WITHDRAWAL FROM THE JURY OF
THE ISSUE OF THE TRUTH OF THEIR RELIGIOUS DOCTRINES OR BELIEFS, AND ARE
NOT BARRED BY THE RULE OF JOHNSON V. UNITED STATES, 318 U.S. 189, FROM
REASSERTING HERE THAT NO PART OF THE INDICTMENT SHOULD HAVE BEEN
SUBMITTED TO THE JURY.  P. 85. 

3.  THE DISTRICT COURT PROPERLY WITHHELD FROM THE JURY ALL QUESTIONS
CONCERNING THE TRUTH OR FALSITY OF RESPONDENTS' RELIGIOUS BELIEFS OR
DOCTRINES.  THIS COURSE WAS REQUIRED BY THE FIRST AMENDMENT'S GUARANTEE
OF RELIGIOUS FREEDOM.  P. 86. 

THE PREFERRED POSITION GIVEN FREEDOM OF RELIGION BY THE FIRST
AMENDMENT IS NOT LIMITED TO ANY PARTICULAR RELIGIOUS GROUP OR TO ANY
PARTICULAR TYPE OF RELIGION BUT APPLIES TO ALL.  P. 87. 

4.  RESPONDENTS MAY URGE IN SUPPORT OF THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS POINTS WHICH THAT COURT RESERVED, BUT SINCE THESE WERE
NOT FULLY PRESENTED HERE EITHER IN THE BRIEFS OR ORAL ARGUMENT, THEY
MAY MORE APPROPRIATELY BE CONSIDERED BY THAT COURT UPON REMAND.  P.
88. 

UNITED STATES V. BALLARD ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 320 U.S. 733, TO REVIEW THE REVERSAL OF CONVICTIONS FOR
USING THE MAILS TO DEFRAUD AND CONSPIRACY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS WERE INDICTED AND CONVICTED FOR USING, AND CONSPIRING TO
USE, THE MAILS TO DEFRAUD.  SEC. 215 CRIMINAL CODE, 18 U.S.C. SEC. 338;
SEC. 37 CRIMINAL CODE, 18 U.S.C. SEC. 88.  THE INDICTMENT WAS IN TWELVE
COUNTS.  IT CHARGED A SCHEME TO DEFRAUD BY ORGANIZING AND PROMOTING THE
I AM MOVEMENT THROUGH THE USE OF THE MAILS.  THE CHARGE WAS THAT
CERTAIN DESIGNATED CORPORATIONS WERE FORMED, LITERATURE DISTRIBUTED AND
SOLD, FUNDS SOLICITED, AND MEMBERSHIPS IN THE I AM MOVEMENT SOUGHT "BY
MEANS OF FALSE AND FRAUDULENT REPRESENTATIONS, PRETENSES AND
PROMISES."  THE FALSE REPRESENTATIONS CHARGED WERE EIGHTEEN IN NUMBER. 
IT IS SUFFICIENT AT THIS POINT TO SAY THAT THEY COVERED RESPONDENTS'
ALLEGED RELIGIOUS DOCTRINES OR BELIEFS.  THEY WERE ALL SET FORTH IN THE
FIRST COUNT.  THE FOLLOWING ARE REPRESENTATIVE: 

THAT GUY W. BALLARD, NOW DECEASED, ALIAS SAINT GERMAIN, JESUS, GEORGE
WASHINGTON, AND GODFRE RAY KING, HAD BEEN SELECTED AND THEREBY
DESIGNATED BY THE ALLEGED "ASCERTAINED MASTERS," SAINT GERMAIN, AS A
DIVINE MESSENGER; AND THAT THE WORDS OF "ASCENDED MASTERS" AND THE
WORDS OF THE ALLEGED DIVINE ENTITY, SAINT GERMAIN, WOULD BE TRANSMITTED
TO MANKIND THROUGH THE MEDIUM OF THE SAID GUY W. BALLARD; 

THAT GUY W. BALLARD, DURING HIS LIFETIME, AND EDNA W. BALLARD, AND
DONALD BALLARD, BY REASON OF THEIR ALLEGED HIGH SPIRITUAL ATTAINMENTS
AND RIGHTEOUS CONDUCT, HAD BEEN SELECTED AS DIVINE MESSENGERS THROUGH
WHICH THE WORDS OF THE ALLEGED "ASCENDED MASTERS," INCLUDING THE
ALLEGED SAINT GERMAIN, WOULD BE COMMUNICATED TO MANKIND UNDER THE
TEACHINGS COMMONLY KNOWN AS THE "I AM" MOVEMENT; 

THAT GUY W. BALLARD, DURING HIS LIFETIME, AND EDNA W. BALLARD AND
DONALD BALLARD HAD, BY REASON OF SUPERNATURAL ATTAINMENTS, THE POWER TO
HEAL PERSONS OF AILMENTS AND DISEASES AND TO MAKE WELL PERSONS
AFFLICTED WITH ANY DISEASES, INJURIES, OR AILMENTS, AND DID FALSELY
REPRESENT TO PERSONS INTENDED TO BE DEFRAUDED THAT THE THREE DESIGNATED
PERSONS HAD THE ABILITY AND POWER TO CURE PERSONS OF THOSE DISEASES
NORMALLY CLASSIFIED AS CURABLE AND ALSO OF DISEASES WHICH ARE
ORDINARILY CLASSIFIED BY THE MEDICAL PROFESSION AS BEING INCURABLE
DISEASES; AND DID FURTHER REPRESENT THAT THE THREE DESIGNATED PERSONS
HAD IN FACT CURED EITHER BY THE ACTIVITY OF ONE, EITHER, OR ALL OF SAID
PERSONS, HUNDREDS OF PERSONS AFFLICTED WITH DISEASES AND AILMENTS; 

EACH OF THE REPRESENTATIONS ENUMERATED IN THE INDICTMENT WAS FOLLOWED
BY THE CHARGE THAT RESPONDENTS "WELL KNEW" IT WAS FALSE.  AFTER
ENUMERATING THE EIGHTEEN MISREPRESENTATIONS THE INDICTMENT ALSO
ALLEGED: 

AT THE TIME OF MAKING ALL OF THE AFORE-ALLEGED REPRESENTATIONS BY THE
DEFENDANTS, AND EACH OF THEM, THE DEFENDANTS, AND EACH OF THEM, WELL
KNEW THAT ALL OF SAID AFOREMENTIONED REPRESENTATIONS WERE FALSE AND
UNTRUE AND WERE MADE WITH THE INTENTION ON THE PART OF THE DEFENDANTS,
AND EACH OF THEM, TO CHEAT, WRONG, AND DEFRAUD PERSONS INTENDED TO BE
DEFRAUDED, AND TO OBTAIN FROM PERSONS INTENDED TO BE DEFRAUDED BY THE
DEFENDANTS, MONEY, PROPERTY, AND OTHER THINGS OF VALUE AND TO CONVERT
THE SAME TO THE USE AND THE BENEFIT OF THE DEFENDANTS, AND EACH OF
THEM; 

THE INDICTMENT CONTAINED TWELVE COUNTS, ONE OF WHICH CHARGED A
CONSPIRACY TO DEFRAUD.  THE FIRST COUNT SET FORTH ALL OF THE EIGHTEEN
REPRESENTATIONS, AS WE HAVE SAID.  EACH OF THE OTHER COUNTS
INCORPORATED AND REALLEGED ALL OF THEM AND ADDED NO ADDITIONAL ONES. 
THERE WAS A DEMURRER AND A MOTION TO QUASH, EACH OF WHICH ASSERTED,
AMONG OTHER THINGS, THAT THE INDICTMENT ATTACKED THE RELIGIOUS BELIEFS
OF RESPONDENTS AND SOUGHT TO RESTRICT THE FREE EXERCISE OF THEIR
RELIGION IN VIOLATION OF THE CONSTITUTION OF THE UNITED STATES.  THESE
MOTIONS WERE DENIED BY THE DISTRICT COURT.  EARLY IN THE TRIAL,
HOWEVER, OBJECTIONS WERE RAISED TO THE ADMISSION OF CERTAIN EVIDENCE
CONCERNING RESPONDENTS' RELIGIOUS BELIEFS.  THE COURT CONFERRED WITH
COUNSEL IN ABSENCE OF THE JURY AND WITH THE ACQUIESCENCE OF COUNSEL FOR
THE UNITED STATES AND FOR RESPONDENTS CONFINED THE ISSUES ON THIS PHASE
OF THE CASE TO THE QUESTION OF THE GOOD FAITH OF RESPONDENTS.  AT THE
REQUEST OF COUNSEL FOR BOTH SIDES THE COURT ADVISED THE JURY OF THAT
ACTION IN THE FOLLOWING LANGUAGE: 

NOW, GENTLEMEN, HERE IS THE ISSUE IN THIS CASE: 

FIRST, THE DEFENDANTS IN THIS CASE MADE CERTAIN REPRESENTATIONS OF
BELIEF IN A DIVINITY AND IN A SUPERNATURAL POWER.  SOME OF THE
TEACHINGS OF THE DEFENDANTS, REPRESENTATIONS, MIGHT SEEM EXTREMELY
IMPROBABLE TO A GREAT MANY PEOPLE.  FOR INSTANCE, THE APPEARANCE OF
JESUS TO DICTATE SOME OF THE WORKS THAT WE HAVE HAD INTRODUCED IN
EVIDENCE, AS TESTIFIED TO HERE AT THE OPENING TRANSCRIPTION, OR SHAKING
HANDS WITH JESUS, TO SOME PEOPLE THAT MIGHT SEEM HIGHLY IMPROBABLE.  I
POINT THAT OUT AS ONE OF THE MANY STATEMENTS. 

WHETHER THAT IS TRUE OR NOT IS NOT THE CONCERN OF THIS COURT AND IS
NOT THE CONCERN OF THE JURY - AND THEY ARE GOING TO BE TOLD SO IN THEIR
INSTRUCTIONS.  AS FAR AS THIS COURT SEES THE ISSUE, IT IS IMMATERIAL
WHAT THESE DEFENDANTS PREACHED OR WROTE OR TAUGHT IN THEIR CLASSES. 
THEY ARE NOT GOING TO BE PERMITTED TO SPECULATE ON THE ACTUALITY OF THE
HAPPENING OF THOSE INCIDENTS.  NOW, I THINK I HAVE MADE THAT AS CLEAR
AS I CAN.  THEREFORE, THE RELIGIOUS BELIEFS OF THESE DEFENDANTS CANNOT
BE AN ISSUE IN THIS COURT. 

THE ISSUE IS:  DID THESE DEFENDANTS HONESTLY AND IN GOOD FAITH
BELIEVE THOSE THINGS?  IF THEY DID, THEY SHOULD BE ACQUITTED.  I CANNOT
MAKE IT ANY CLEARER THAN THAT. 

IF THESE DEFENDANTS DID NOT BELIEVE THOSE THINGS, THEY DID NOT
BELIEVE THAT JESUS CAME DOWN AND DICTATED, OR THAT SAINT GERMAIN CAME
DOWN AND DICTATED, DID NOT BELIEVE THE THINGS THAT THEY WROTE, THE
THINGS THAT THEY PREACHED, BUT USED THE MAIL FOR THE PURPOSE OF GETTING
MONEY, THE JURY SHOULD FIND THEM GUILTY.  THEREFORE, GENTLEMEN,
RELIGION CANNOT COME INTO THIS CASE. 

THE DISTRICT COURT REITERATED THAT ADMONITION IN THE CHARGE TO THE
JURY AND MADE IT ABUNDANTLY CLEAR.  THE FOLLOWING PORTION OF THE CHARGE
IS TYPICAL: 

THE QUESTION OF THE DEFENDANTS' GOOD FAITH IS THE CARDINAL QUESTION
IN THIS CASE.  YOU ARE NOT TO BE CONCERNED WITH THE RELIGIOUS BELIEF OF
THE DEFENDANTS, OR ANY OF THEM.  THE JURY WILL BE CALLED UPON TO PASS
ON THE QUESTION OF WHETHER OR NOT THE DEFENDANTS HONESTLY AND IN GOOD
FAITH BELIEVED THE REPRESENTATIONS WHICH ARE SET FORTH IN THE
INDICTMENT, AND HONESTLY AND IN GOOD FAITH BELIEVED THAT THE BENEFITS
WHICH THEY REPRESENTED WOULD FLOW FROM THEIR BELIEF TO THOSE WHO
EMBRACED AND FOLLOWED THEIR TEACHINGS, OR WHETHER THESE REPRESENTATIONS
WERE MERE PRETENSES WITHOUT HONEST BELIEF ON THE PART OF THE DEFENDANTS
OR ANY OF THEM, AND, WERE THE REPRESENTATIONS MADE FOR THE PURPOSE OF
PROCURING MONEY, AND WERE THE MAILS USED FOR THIS PURPOSE. 

AS WE HAVE SAID, COUNSEL FOR THE DEFENSE ACQUIESCED IN THIS TREATMENT
OF THE MATTER, MADE NO OBJECTION TO IT DURING THE TRIAL, AND INDEED
TREATED IT WITHOUT PROTEST AS THE LAW OF THE CASE THROUGHOUT THE
PROCEEDINGS PRIOR TO THE VERDICT.  RESPONDENTS DID NOT CHANGE THEIR
POSITION BEFORE THE DISTRICT COURT AFTER VERDICT AND CONTEND THAT THE
TRUTH OR VERITY OF THEIR RELIGIOUS DOCTRINES OR BELIEFS SHOULD HAVE
BEEN SUBMITTED TO THE JURY.  IN THEIR MOTION FOR NEW TRIAL THEY DID
CONTEND, HOWEVER, THAT THE WITHDRAWAL OF THESE ISSUES FROM THE JURY WAS
ERROR BECAUSE IT WAS IN EFFECT AN AMENDMENT OF THE INDICTMENT.  THAT
WAS ALSO ONE OF THEIR SPECIFICATIONS OF ERRORS ON APPEAL.  AND OTHER
ERRORS URGED ON APPEAL INCLUDED THE OVERRULING OF THE DEMURRER TO THE
INDICTMENT AND THE MOTION TO QUASH, AND THE DISALLOWANCE OF PROOF OF
THE TRUTH OF RESPONDENTS' RELIGIOUS DOCTRINES OR BELIEFS. 

THE CIRCUIT COURT OF APPEALS REVERSED THE JUDGMENT OF CONVICTION AND
GRANTED A NEW TRIAL, ONE JUDGE DISSENTING.  138 F.2D 540.  IN ITS VIEW
THE RESTRICTION OF THE ISSUE IN QUESTION TO THAT OF GOOD FAITH WAS
ERROR.  ITS REASON WAS THAT THE SCHEME TO DEFRAUD ALLEGED IN THE
INDICTMENT WAS THAT RESPONDENTS MADE THE EIGHTEEN ALLEGED FALSE
REPRESENTATIONS; AND THAT TO PROVE THAT DEFENDANTS DEVISED THE SCHEME
DESCRIBED IN THE INDICTMENT "IT WAS NECESSARY TO PROVE THAT THEY
SCHEMED TO MAKE SOME, AT LEAST, OF THE (EIGHTEEN) REPRESENTATIONS  ...
AND THAT SOME, AT LEAST, OF THE REPRESENTATIONS WHICH THEY SCHEMED TO
MAKE WERE FALSE."  138 F.2D 545.  ONE JUDGE THOUGHT THAT THE RULING OF
THE DISTRICT COURT WAS ALSO ERROR BECAUSE IT WAS "AS PREJUDICIAL TO THE
ISSUE OF HONEST BELIEF AS TO THE ISSUE OF PURPOSEFUL
MISREPRESENTATION."  ID., P. 546. 

THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED. 

THE UNITED STATES CONTENDS THAT THE DISTRICT COURT WITHDREW FROM THE
JURY'S CONSIDERATION ONLY THE TRUTH OR FALSITY OF THOSE REPRESENTATIONS
WHICH RELATED TO RELIGIOUS CONCEPTS OR BELIEFS AND THAT THERE WERE
REPRESENTATIONS CHARGED IN THE INDICTMENT WHICH FELL WITHIN A DIFFERENT
CATEGORY.  FN1  THE ARGUMENT IS THAT THIS LATTER GROUP OF
REPRESENTATIONS WAS SUBMITTED TO THE JURY, THAT THEY WERE ADEQUATE TO
CONSTITUTE AN OFFENSE UNDER THE ACT, AND THAT THEY WERE SUPPORTED BY
THE REQUISITE EVIDENCE.  IT IS THUS SOUGHT TO BRING THE CASE WITHIN THE
RULE OF HALL V. UNITED STATES, 168 U.S. 632, 639-640, WHICH HELD THAT
WHERE AN INDICTMENT CONTAINED "ALL THE NECESSARY AVERMENTS TO
CONSTITUTE AN OFFENSE CREATED BY THE STATUTE," A CONVICTION WOULD NOT
BE SET ASIDE BECAUSE A "TOTALLY IMMATERIAL FACT" WAS AVERRED BUT NOT
PROVED.  WE DO NOT STOP TO ASCERTAIN THE RELEVANCY OF THAT RULE TO THIS
CASE, FOR WE ARE OF THE VIEW THAT ALL OF THE REPRESENTATIONS CHARGED IN
THE INDICTMENT WHICH RELATED AT LEAST IN PART TO THE RELIGIOUS
DOCTRINES OR BELIEFS OF RESPONDENTS WERE WITHHELD FROM THE JURY.  THE
TRIAL JUDGE DID NOT DIFFERENTIATE THEM.  HE REFERRED IN THE CHARGE TO
THE "RELIGIOUS BELIEFS" AND "DOCTRINES TAUGHT BY THE DEFENDANTS" AS
MATTERS WITHHELD FROM THE JURY.  AND IN STATING THAT THE ISSUE OF GOOD
FAITH WAS THE "CARDINAL QUESTION" IN THE CASE HE CHARGED, AS ALREADY
NOTED, THAT "THE JURY WILL BE CALLED UPON TO PASS ON THE QUESTION OF
WHETHER OR NOT THE DEFENDANTS HONESTLY AND IN GOOD FAITH BELIEVED THE
REPRESENTATIONS WHICH ARE SET FORTH IN THE INDICTMENT."  NOWHERE IN THE
CHARGE WERE ANY OF THE SEPARATE REPRESENTATIONS SUBMITTED TO THE JURY. 
A CAREFUL READING OF THE WHOLE CHARGE LEADS US TO AGREE WITH THE
CIRCUIT COURT OF APPEALS ON THIS PHASE OF THE CASE THAT THE ONLY ISSUE
SUBMITTED TO THE JURY WAS THE QUESTION AS STATED BY THE DISTRICT COURT,
OF RESPONDENTS'"BELIEF IN THEIR REPRESENTATIONS AND PROMISES." 

THE UNITED STATES CONTENDS THAT RESPONDENTS ACQUIESCED IN THE
WITHDRAWAL FROM THE JURY OF THE TRUTH OF THEIR RELIGIOUS DOCTRINES OR
BELIEFS AND THAT THEIR CONSENT BARS THEM FROM INSISTING ON A DIFFERENT
COURSE ONCE THAT ONE TURNED OUT TO BE UNSUCCESSFUL.  RELIANCE FOR THAT
POSITION IS SOUGHT IN JOHNSON V. UNITED STATES, 318 U.S. 189.  THAT
CASE STANDS FOR THE PROPOSITION THAT, APART FROM SITUATIONS INVOLVING
AN UNFAIR TRIAL, AN APPELLATE COURT WILL NOT GRANT A NEW TRIAL TO A
DEFENDANT ON THE GROUND OF IMPROPER INTRODUCTION OF EVIDENCE OR
IMPROPER COMMENT BY THE PROSECUTOR, WHERE THE DEFENDANT ACQUIESCED IN
THAT COURSE AND MADE NO OBJECTION TO IT.  IN FAIRNESS TO RESPONDENTS
THAT PRINCIPLE CANNOT BE APPLIED HERE.  THE REAL OBJECTION OF
RESPONDENTS IS NOT THAT THE TRUTH OF THEIR RELIGIOUS DOCTRINES OR
BELIEFS SHOULD HAVE BEEN SUBMITTED TO THE JURY.  THEIR DEMURRER AND
MOTION TO QUASH MADE CLEAR THEIR POSITION THAT THAT ISSUE SHOULD BE
WITHHELD FROM THE JURY ON THE BASIS OF THE FIRST AMENDMENT.  MOREOVER,
THEIR POSITION AT ALL TIMES WAS AND STILL IS THAT THE COURT SHOULD HAVE
GONE THE WHOLE WAY AND WITHHELD FROM THE JURY BOTH THAT ISSUE AND THE
ISSUE OF THEIR GOOD FAITH.  THEIR DEMURRER AND MOTION TO QUASH ASKED
FOR DISMISSAL OF THE ENTIRE INDICTMENT.  THEIR ARGUMENT THAT THE TRUTH
OF THEIR RELIGIOUS DOCTRINES OR BELIEFS SHOULD HAVE GONE TO THE JURY
WHEN THE QUESTION OF THEIR GOOD FAITH WAS SUBMITTED WAS AND IS MERELY
AN ALTERNATIVE ARGUMENT.  THEY NEVER FORSOOK THEIR POSITION THAT THE
INDICTMENT SHOULD HAVE BEEN DISMISSED AND THAT NONE OF IT WAS GOOD. 
MOREOVER, RESPONDENTS' MOTION FOR NEW TRIAL CHALLENGED THE PROPRIETY OF
THE ACTION OF THE DISTRICT COURT IN WITHDRAWING FROM THE JURY THE ISSUE
OF THE TRUTH OF THEIR RELIGIOUS DOCTRINES OR BELIEFS WITHOUT ALSO
WITHDRAWING THE QUESTION OF THEIR GOOD FAITH.  SO WE CONCLUDE THAT THE
RULE OF JOHNSON V. UNITED STATES, SUPRA, DOES NOT PREVENT RESPONDENTS
FROM REASSERTING NOW THAT NO PART OF THE INDICTMENT SHOULD HAVE BEEN
SUBMITTED TO THE JURY. 

AS WE HAVE NOTED, THE CIRCUIT COURT OF APPEALS HELD THAT THE QUESTION
OF THE TRUTH OF THE REPRESENTATIONS CONCERNING RESPONDENTS' RELIGIOUS
DOCTRINES OR BELIEFS SHOULD HAVE BEEN SUBMITTED TO THE JURY.  AND IT
REMANDED THE CASE FOR A NEW TRIAL.  IT MAY BE THAT THE CIRCUIT COURT OF
APPEALS TOOK THAT ACTION BECAUSE IT DID NOT THINK THAT THE INDICTMENT
COULD BE PROPERLY CONSTRUED AS CHARGING A SCHEME TO DEFRAUD BY MEANS
OTHER THAN MISREPRESENTATIONS OF RESPONDENTS' RELIGIOUS DOCTRINES OR
BELIEFS.  OR THAT COURT MAY HAVE CONCLUDED THAT THE WITHDRAWAL OF THE
ISSUE OF THE TRUTH OF THOSE RELIGIOUS DOCTRINES OR BELIEFS WAS
UNWARRANTED BECAUSE IT RESULTED IN A SUBSTANTIAL CHANGE IN THE
CHARACTER OF THE CRIME CHARGED.  BUT ON WHICHEVER BASIS THAT COURT
RESTED ITS ACTION, WE DO NOT AGREE THAT THE TRUTH OR VERITY OF
RESPONDENTS' RELIGIOUS DOCTRINES OR BELIEFS SHOULD HAVE BEEN SUBMITTED
TO THE JURY.  WHATEVER THIS PARTICULAR INDICTMENT MIGHT REQUIRE, THE
FIRST AMENDMENT PRECLUDES SUCH A COURSE, AS THE UNITED STATES SEEMS TO
CONCEDE.  "THE LAW KNOWS NO HERESY, AND IS COMMITTED TO THE SUPPORT OF
NO DOGMA, THE ESTABLISHMENT OF NO SECT."  WATSON V. JONES, 13 WALL. 
679, 728.  THE FIRST AMENDMENT HAS A DUAL ASPECT.  IT NOT ONLY
"FORESTALLS COMPULSION BY LAW OF THE ACCEPTANCE OF ANY CREED OR THE
PRACTICE OF ANY FORM OF WORSHIP" BUT ALSO "SAFEGUARDS THE FREE EXERCISE
OF THE CHOSEN FORM OF RELIGION."  CANTWELL V. CONNECTICUT, 310 U.S.
296, 303.  "THUS THE AMENDMENT EMBRACES TWO CONCEPTS,  - FREEDOM TO
BELIEVE AND FREEDOM TO ACT.  THE FIRST IS ABSOLUTE BUT, IN THE NATURE
OF THINGS, THE SECOND CANNOT BE."  ID., PP. 303-304.  FREEDOM OF
THOUGHT, WHICH INCLUDES FREEDOM OF RELIGIOUS BELIEF, IS BASIC IN A
SOCIETY OF FREE MEN.  BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624.  IT
EMBRACES THE RIGHT TO MAINTAIN THEORIES OF LIFE AND OF DEATH AND OF THE
HEREAFTER WHICH ARE RANK HERESY TO FOLLOWERS OF THE ORTHODOX FAITHS. 
HERESY TRIALS ARE FOREIGN TO OUR CONSTITUTION.  MEN MAY BELIEVE WHAT
THEY CANNOT PROVE.  THEY MAY NOT BE PUT TO THE PROOF OF THEIR RELIGIOUS
DOCTRINES OR BELIEFS.  RELIGIOUS EXPERIENCES WHICH ARE AS REAL AS LIFE
TO SOME MAY BE INCOMPREHENSIBLE TO OTHERS.  YET THE FACT THAT THEY MAY
BE BEYOND THE KEN OF MORTALS DOES NOT MEAN THAT THEY CAN BE MADE
SUSPECT BEFORE THE LAW.  MANY TAKE THEIR GOSPEL FROM THE NEW
TESTAMENT.  BUT IT WOULD HARDLY BE SUPPOSED THAT THEY COULD BE TRIED
BEFORE A JURY CHARGED WITH THE DUTY OF DETERMINING WHETHER THOSE
TEACHINGS CONTAINED FALSE REPRESENTATIONS.  THE MIRACLES OF THE NEW
TESTAMENT, THE DIVINITY OF CHRIST, LIFE AFTER DEATH, THE POWER OF
PRAYER ARE DEEP IN THE RELIGIOUS CONVICTIONS OF MANY.  IF ONE COULD BE
SENT TO JAIL BECAUSE A JURY IN A HOSTILE ENVIRONMENT FOUND THOSE
TEACHINGS FALSE, LITTLE INDEED WOULD BE LEFT OF RELIGIOUS FREEDOM.  THE
FATHERS OF THE CONSTITUTION WERE NOT UNAWARE OF THE VARIED AND EXTREME
VIEWS OF RELIGIOUS SECTS, OF THE VIOLENCE OF DISAGREEMENT AMONG THEM,
AND OF THE LACK OF ANY ONE RELIGIOUS CREED ON WHICH ALL MEN WOULD
AGREE.  THEY FASHIONED A CHARTER OF GOVERNMENT WHICH ENVISAGED THE
WIDEST POSSIBLE TOLERATION OF CONFLICTING VIEWS.  MAN'S RELATION TO HIS
GOD WAS MADE NO CONCERN OF THE STATE.  HE WAS GRANTED THE RIGHT TO
WORSHIP AS HE PLEASED AND TO ANSWER TO NO MAN FOR THE VERITY OF HIS
RELIGIOUS VIEWS.  THE RELIGIOUS VIEWS ESPOUSED BY RESPONDENTS MIGHT
SEEM INCREDIBLE, IF NOT PREPOSTEROUS, TO MOST PEOPLE.  BUT IF THOSE
DOCTRINES ARE SUBJECT TO TRIAL BEFORE A JURY CHARGED WITH FINDING THEIR
TRUTH OR FALSITY, THEN THE SAME CAN BE DONE WITH THE RELIGIOUS BELIEFS
OF ANY SECT.  WHEN THE TRIERS OF FACT UNDERTAKE THAT TASK, THEY ENTER A
FORBIDDEN DOMAIN.  THE FIRST AMENDMENT DOES NOT SELECT ANY ONE GROUP OR
ANY ONE TYPE OF RELIGION FOR PREFERRED TREATMENT.  IT PUTS THEM ALL IN
THAT POSITION.  MURDOCK V. PENNSYLVANIA, 319 U.S. 105.  AS STATED IN
DAVIS V. BEASON, 133 U.S. 333, 342, "WITH MAN'S RELATIONS TO HIS MAKER
AND THE OBLIGATIONS HE MAY THINK THEY IMPOSE, AND THE MANNER IN WHICH
AN EXPRESSION SHALL BE MADE BY HIM OF HIS BELIEF ON THOSE SUBJECTS, NO
INTERFERENCE CAN BE PERMITTED, PROVIDED ALWAYS THE LAWS OF SOCIETY,
DESIGNED TO SECURE ITS PEACE AND PROSPERITY, AND THE MORALS OF ITS
PEOPLE, ARE NOT INTERFERED WITH."  SEE PRINCE V. MASSACHUSETTS, 321
U.S. 158.  SO WE CONCLUDE THAT THE DISTRICT COURT RULED PROPERLY WHEN
IT WITHHELD FROM THE JURY ALL QUESTIONS CONCERNING THE TRUTH OR FALSITY
OF THE RELIGIOUS BELIEFS OR DOCTRINES OF RESPONDENTS. 

RESPONDENTS MAINTAIN THAT THE REVERSAL OF THE JUDGMENT OF CONVICTION
WAS JUSTIFIED ON OTHER DISTINCT GROUNDS.  THE CIRCUIT COURT OF APPEALS
DID NOT REACH THOSE QUESTIONS.  RESPONDENTS MAY, OF COURSE, URGE THEM
HERE IN SUPPORT OF THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS. 
LANGNES V. GREEN, 282 U.S. 531, 538-539; STORY PARCHMENT CO. V.
PATERSON CO., 282 U.S. 555, 560, 567-568.  BUT SINCE ATTENTION WAS
CENTERED ON THE ISSUES WHICH WE HAVE DISCUSSED, THE REMAINING QUESTIONS
WERE NOT FULLY PRESENTED TO THIS COURT EITHER IN THE BRIEFS OR ORAL
ARGUMENT.  IN VIEW OF THESE CIRCUMSTANCES WE DEEM IT MORE APPROPRIATE
TO REMAND THE CAUSE TO THE CIRCUIT COURT OF APPEALS SO THAT IT MAY PASS
ON THE QUESTIONS RESERVED.  LUTCHER & MOORE LUMBER CO. V. KNIGHT, 217
U.S. 257, 267-268; BROWN V. FLETCHER, 237 U.S. 583.  IF ANY QUESTIONS
OF IMPORTANCE SURVIVE AND ARE PRESENTED HERE, WE WILL THEN HAVE THE
BENEFIT OF THE VIEWS OF THE CIRCUIT COURT OF APPEALS.  UNTIL THAT
ADDITIONAL CONSIDERATION IS HAD, WE CANNOT BE SURE THAT IT WILL BE
NECESSARY TO PASS ON ANY OF THE OTHER CONSTITUTIONAL ISSUES WHICH
RESPONDENTS CLAIM TO HAVE RESERVED. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT
COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS
OPINION.  REVERSED. 

FN1  PETITIONER HAS PLACED THREE REPRESENTATIONS IN THIS GROUP:  (1)
A PORTION OF THE SCHEME AS TO HEALING WHICH WE HAVE ALREADY QUOTED AND
WHICH ALLEGED THAT RESPONDENTS "HAD IN FACT CURED EITHER BY THE
ACTIVITY OF ONE, EITHER, OR ALL OF SAID PERSONS, HUNDREDS OF PERSONS
AFFLICTED WITH DISEASES AND AILMENTS"; (2) THE PORTION OF THE SCHEME
RELATING TO CERTAIN RELIGIOUS EXPERIENCES DESCRIBED IN CERTAIN BOOKS
(UNVEILED MYSTERIES AND THE MAGIC PRESENCE) AND CONCERNING WHICH THE
INDICTMENT ALLEGED "THAT THE DEFENDANTS REPRESENTED THAT GUY W.
BALLARD, EDNA W. BALLARD, AND DONALD BALLARD ACTUALLY ENCOUNTERED THE
EXPERIENCES PERTAINING TO EACH OF THEIR SAID NAMES AS RELATED AND SET
FORTH IN SAID BOOKS, WHEREAS IN TRUTH AND IN FACT NONE OF SAID PERSONS
DID ENCOUNTER THE EXPERIENCES"; (3) THE PART OF THE SCHEME CONCERNING
PHONOGRAPH RECORDS SOLD BY RESPONDENTS ON REPRESENTATIONS THAT THEY
WOULD BESTOW ON PURCHASERS "GREAT BLESSINGS AND REWARDS IN THEIR AIM TO
ACHIEVE SALVATION" WHEREAS RESPONDENTS "WELL KNEW THAT SAID  ...
RECORDS WERE MAN-MADE AND HAD NO ABILITY TO AID IN ACHIEVING
SALVATION." 

MR. CHIEF JUSTICE STONE, DISSENTING: 

I AM NOT PREPARED TO SAY THAT THE CONSTITUTIONAL GUARANTY OF FREEDOM
OF RELIGION AFFORDS IMMUNITY FROM CRIMMINAL PROSECUTION FOR THE
FRAUDULENT PROCUREMENT OF MONEY BY FALSE STATEMENTS AS TO ONE'S
RELIGIOUS EXPERIENCES, MORE THAN IT RENDERS POLYGAMY OR LIBEL IMMUNE
FROM CRIMINAL PROSECUTION.  DAVIS V. BEASON, 133 U.S. 333; SEE
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 572; CF. PATTERSON V.
COLORADO, 205 U.S. 454, 462; NEAR V. MINNESOTA, 283 U.S. 697, 715.  I
CANNOT SAY THAT FREEDOM OF THOUGHT AND WORSHIP INCLUDES FREEDOM TO
PROCURE MONEY BY MAKING KNOWINGLY FALSE STATEMENTS ABOUT ONE'S
RELIGIOUS EXPERIENCES.  TO GO NO FURTHER, IF IT WERE SHOWN THAT A
DEFENDANT IN THIS CASE HAD ASSERTED AS A PART OF THE ALLEGED FRAUDULENT
SCHEME, THAT HE HAD PHYSICALLY SHAKEN HANDS WITH ST. GERMAIN IN SAN
FRANCISCO ON A DAY NAMED, OR THAT, AS THE INDICTMENT HERE ALLEGES, BY
THE EXERTION OF HIS SPIRITUAL POWER HE "HAD IN FACT CURED  ...
HUNDREDS OF PERSONS AFFLICTED WITH DISEASES AND AILMENTS," I SHOULD NOT
DOUBT THAT IT WOULD BE OPEN TO THE GOVERNMENT TO SUBMIT TO THE JURY
PROOF THAT HE HAD NEVER BEEN IN SAN FRANCISCO AND THAT NO SUCH CURES
HAD EVER BEEN EFFECTED.  IN ANY EVENT I SEE NO OCCASION FOR MAKING ANY
PRONOUNCEMENT ON THIS SUBJECT IN THE PRESENT CASE. 

THE INDICTMENT CHARGES RESPONDENTS' USE OF THE MAILS TO DEFRAUD AND A
CONSPIRACY TO COMMIT THAT OFFENSE BY FALSE STATEMENTS OF THEIR
RELIGIOUS EXPERIENCES WHICH HAD NOT IN FACT OCCURRED.  BUT IT ALSO
CHARGED THAT THE REPRESENTATIONS WERE "FALSELY AND FRAUDULENTLY" MADE,
THAT RESPONDENTS "WELL KNEW" THAT THESE REPRESENTATIONS WERE UNTRUE,
AND THAT THEY WERE MADE BY RESPONDENTS WITH THE INTENT TO CHEAT AND
DEFRAUD THOSE TO WHOM THEY WERE MADE.  WITH THE ASSENT OF THE
PROSECUTION AND THE DEFENSE THE TRIAL JUDGE WITHDREW FROM THE
CONSIDERATION OF THE JURY THE QUESTION WHETHER THE ALLEGED RELIGIOUS
EXPERIENCES HAD IN FACT OCCURRED, BUT SUBMITTED TO THE JURY THE SINGLE
ISSUE WHETHER PETITIONERS HONESTLY BELIEVED THAT THEY HAD OCCURRED,
WITH THE INSTRUCTION THAT IF THE JURY DID NOT SO FIND, THEN IT SHOULD
RETURN A VERDICT OF GUILTY.  ON THIS ISSUE THE JURY, ON AMPLE EVIDENCE
THAT RESPONDENTS WERE WITHOUT BELIEF IN THE STATEMENTS WHICH THEY HAD
MADE TO THEIR VICTIMS, FOUND A VERDICT OF GUILTY.  THE STATE OF ONE'S
MIND IS A FACT AS CAPABLE OF FRAUDULENT MISREPRESENTATION AS IS ONE'S
PHYSICAL CONDITION OR THE STATE OF HIS BODILY HEALTH.  SEE SEVEN CASES
V. UNITED STATES, 239 U.S. 510, 517; CF. DURLAND V. UNITED STATES, 161
U.S. 306, 313.  THERE ARE NO EXCEPTIONS TO THE CHARGE AND NO CONTENTION
THAT THE TRIAL COURT REJECTED ANY RELEVANT EVIDENCE WHICH PETITIONERS
SOUGHT TO OFFER.  SINCE THE INDICTMENT AND THE EVIDENCE SUPPORT THE
CONVICTION, IT IS IRRELEVANT WHETHER THE RELIGIOUS EXPERIENCES ALLEGED
DID OR DID NOT IN FACT OCCUR OR WHETHER THAT ISSUE COULD OR COULD NOT,
FOR CONSTITUTIONAL REASONS, HAVE BEEN RIGHTLY SUBMITTED TO THE JURY. 
CERTAINLY NONE OF RESPONDENTS' CONSTITUTIONAL RIGHTS ARE VIOLATED IF
THEY ARE PROSECUTED FOR THE FRAUDULENT PROCUREMENT OF MONEY BY FALSE
REPRESENTATIONS AS TO THEIR BELIEFS, RELIGIOUS OR OTHERWISE. 

OBVIOUSLY IF THE QUESTION WHETHER THE RELIGIOUS EXPERIENCES IN FACT
OCCURRED COULD NOT CONSTITUTIONALLY HAVE BEEN SUBMITTED TO THE JURY THE
COURT RIGHTLY WITHDREW IT.  IF IT COULD HAVE BEEN SUBMITTED I KNOW OF
NO REASON WHY THE PARTIES COULD NOT, WITH THE ADVICE OF COUNSEL, ASSENT
TO ITS WITHDRAWAL FROM THE JURY.  AND WHERE, AS HERE, THE INDICTMENT
CHARGES TWO SETS OF FALSE STATEMENTS, EACH INDEPENDENTLY SUFFICIENT TO
SUSTAIN THE CONVICTION, I CANNOT ACCEPT RESPONDENTS' CONTENTION THAT
THE WITHDRAWAL OF ONE SET AND THE SUBMISSION OF THE OTHER TO THE JURY
AMOUNTED TO AN AMENDMENT OF THE INDICTMENT. 

AN INDICTMENT IS AMENDED WHEN IT IS SO ALTERED AS TO CHARGE A
DIFFERENT OFFENSE FROM THAT FOUND BY THE GRAND JURY.  EX PARTE BAIN,
121 U.S. 1.  BUT HERE THERE WAS NO ALTERATION OF THE INDICTMENT,
SALINGER V. UNITED STATES, 272 U.S. 542, 549, NOR DID THE COURT'S
ACTION, IN EFFECT, ADD ANYTHING TO IT BY SUBMITTING TO THE JURY MATTERS
WHICH IT DID NOT CHARGE.  UNITED STATES V. NORRIS, 281 U.S. 619, 622. 
IN SALINGER V. UNITED STATES, SUPRA, 548-9, WE EXPLICITLY HELD THAT
WHERE AN INDICTMENT CHARGES SEVERAL OFFENSES, OR THE COMMISSION OF ONE
OFFENSE IN SEVERAL WAYS, THE WITHDRAWAL FROM THE JURY'S CONSIDERATION
OF ONE OFFENSE OR ONE ALLEGED METHOD OF COMMITTING IT DOES NOT
CONSTITUTE A FORBIDDEN AMENDMENT OF THE INDICTMENT.  SEE ALSO GOTO V.
LANE, 265 U.S. 393, 402-3; FORD V. UNITED STATES, 273 U.S. 593, 602. 
WERE THE RULE OTHERWISE THE COMMON PRACTICE OF WITHDRAWING FROM THE
JURY'S CONSIDERATION ONE COUNT OF AN INDICTMENT WHILE SUBMITTING OTHERS
FOR ITS VERDICT, SUSTAINED IN DEALY V. UNITED STATES, 152 U.S. 539,
542, WOULD BE A FATAL ERROR. 

WE MAY ASSUME THAT UNDER SOME CIRCUMSTANCES THE SUBMISSION TO THE
JURY OF PART ONLY OF THE MATTERS ALLEGED IN THE INDICTMENT MIGHT RESULT
IN SUCH SURPRISE TO THE DEFENDANT AS TO AMOUNT TO THE DENIAL OF A FAIR
TRIAL.  BUT, AS IN THE ANALOGOUS CASE OF A VARIANCE BETWEEN PLEADING
AND PROOF, A CONVICTION CAN BE REVERSED ONLY UPON A SHOWING OF INJURY
TO THE "SUBSTANTIAL RIGHTS" OF THE ACCUSED.  BERGER V. UNITED STATES,
295 U.S. 78, 82.  HERE NO CLAIM OF SURPRISE HAS BEEN OR COULD BE MADE. 
THE INDICTMENT PLAINLY CHARGED BOTH FALSITY OF, AND LACK OF GOOD FAITH
BELIEF IN THE REPRESENTATIONS MADE, AND IT WAS AGREED AT THE OUTSET OF
THE TRIAL, WITHOUT OBJECTION FROM THE DEFENDANTS, THAT ONLY THE ISSUE
OF RESPONDENTS' GOOD FAITH BELIEF IN THE REPRESENTATIONS OF RELIGIOUS
EXPERIENCES WOULD BE SUBMITTED TO THE JURY.  RESPONDENTS, WHO WERE
REPRESENTED BY COUNSEL, AT NO TIME IN THE COURSE OF THE TRIAL OFFERED
ANY OBJECTION TO THIS LIMITATION OF THE ISSUES, OR ANY CONTENTION THAT
IT WOULD RESULT IN A PROHIBITED AMENDMENT OF THE INDICTMENT.  SO FAR AS
APPEARS FROM THE RECORD BEFORE US THE POINT WAS RAISED FOR THE FIRST
TIME IN THE SPECIFICATIONS OF ERRORS IN THE CIRCUIT COURT OF APPEALS. 
IT IS ASSERTED THAT IT WAS ARGUED TO THE DISTRICT COURT ON MOTIONS FOR
NEW TRIAL AND IN ARREST OF JUDGMENT.  IF SO, THERE WAS STILL NO
SURPRISE BY A RULING TO WHICH, AS WE HAVE SAID, RESPONDENTS' COUNSEL
ASSENTED WHEN IT WAS MADE. 

ON THE ISSUE SUBMITTED TO THE JURY IN THIS CASE IT PROPERLY RENDERED
A VERDICT OF GUILTY.  AS NO LEGALLY SUFFICIENT REASON FOR DISTURBING IT
APPEARS, I THINK THE JUDGMENT BELOW SHOULD BE REVERSED AND THAT OF THE
DISTRICT COURT REINSTATED. 

MR. JUSTICE ROBERTS AND MR. JUSTICE FRANKFURTER JOIN IN THIS
OPINION. 

MR. JUSTICE JACKSON, DISSENTING: 

I SHOULD SAY THE DEFENDANTS HAVE DONE JUST THAT FOR WHICH THEY ARE
INDICTED.  IF I MIGHT AGREE TO THEIR CONVICTION WITHOUT CREATING A
PRECEDENT, I CHEERFULLY WOULD DO SO.  I CAN SEE IN THEIR TEACHINGS
NOTHING BUT HUMBUG, UNTAINTED BY ANY TRACE OF TRUTH.  BUT THAT DOES NOT
DISPOSE OF THE CONSTITUTIONAL QUESTION WHETHER MISREPRESENTATION OF
RELIGIOUS EXPERIENCE OR BELIEF IS PROSECUTABLE; IT RATHER EMPHASIZES
THE DANGER OF SUCH PROSECUTIONS. 

THE BALLARD FAMILY CLAIMED MIRACULOUS COMMUNICATION WITH THE SPIRIT
WORLD AND SUPERNATURAL POWER TO HEAL THE SICK.  THEY WERE BROUGHT TO
TRIAL FOR MAIL FRAUD ON AN INDICTMENT WHICH CHARGED THAT THEIR
REPRESENTATIONS WERE FALSE AND THAT THEY "WELL KNEW" THEY WERE FALSE. 
THE TRIAL JUDGE, OBVIOUSLY TROUBLED, RULED THAT THE COURT COULD NOT TRY
WHETHER THE STATEMENTS WERE UNTRUE, BUT COULD INQUIRE WHETHER THE
DEFENDANTS KNEW THEM TO BE UNTRUE; AND, IF SO, THEY COULD BE
CONVICTED.    I FIND IT DIFFICULT TO RECONCILE THIS CONCLUSION WITH OUR
TRADITIONAL RELIGIOUS FREEDOMS. 

IN THE FIRST PLACE, AS A MATTER OF EITHER PRACTICE OR PHILOSOPHY I DO
NOT SEE HOW WE CAN SEPARATE AN ISSUE AS TO WHAT IS BELIEVED FROM
CONSIDERATIONS AS TO WHAT IS BELIEVABLE.  THE MOST CONVINCING PROOF
THAT ONE BELIEVES HIS STATEMENTS IS TO SHOW THAT THEY HAVE BEEN TRUE IN
HIS EXPERIENCE.  LIKEWISE, THAT ONE KNOWINGLY FALSIFIED IS BEST PROVED
BY SHOWING THAT WHAT HE SAID HAPPENED NEVER DID HAPPEN.  HOW CAN THE
GOVERNMENT PROVE THESE PERSONS KNEW SOMETHING TO BE FALSE WHICH IT
CANNOT PROVE TO BE FALSE?  IF WE TRY RELIGIOUS SINCERITY SEVERED FROM
RELIGIOUS VERITY, WE ISOLATE THE DISPUTE FROM THE VERY CONSIDERATIONS
WHICH IN COMMON EXPERIENCE PROVIDE ITS MOST RELIABLE ANSWER. 

IN THE SECOND PLACE, ANY INQUIRY INTO INTELLECTUAL HONESTY IN
RELIGION RAISES PROFOUND PSYCHOLOGICAL PROBLEMS.  WILLIAM JAMES, WHO
WROTE ON THESE MATTERS AS A SCIENTIST, REMINDS US THAT IT IS NOT
THEOLOGY AND CEREMONIES WHICH KEEP RELIGION GOING.  ITS VITALITY IS IN
THE RELIGIOUS EXPERIENCES OF MANY PEOPLE.  "IF YOU ASK WHAT THESE
EXPERIENCES ARE, THEY ARE CONVERSATIONS WITH THE UNSEEN, VOICES AND
VISIONS, RESPONSES TO PRAYER, CHANGES OF HEART, DELIVERANCES FROM FEAR,
INFLOWINGS OF HELP, ASSURANCES OF SUPPORT, WHENEVER CERTAIN PERSONS SET
THEIR OWN INTERNAL ATTITUDE IN CERTAIN APPROPRIATE WAYS."  FN1  IF
RELIGIOUS LIBERTY INCLUDES, AS IT MUST, THE RIGHT TO COMMUNICATE SUCH
EXPERIENCES TO OTHERS, IT SEEMS TO ME AN IMPOSSIBLE TASK FOR JURIES TO
SEPARATE FANCIED ONES FROM REAL ONES, DREAMS FROM HAPPENINGS, AND
HALLUCINATIONS FROM TRUE CLAIRVOYANCE.  SUCH EXPERIENCES, LIKE SOME
TONES AND COLORS, HAVE EXISTENCE FOR ONE, BUT NONE AT ALL FOR ANOTHER. 
THEY CANNOT BE VERIFIED TO THE MINDS OF THOSE WHOSE FIELD OF
CONSCIOUSNESS DOES NOT INCLUDE RELIGIOUS INSIGHT.  WHEN ONE COMES TO
TRIAL WHICH TURNS ON ANY ASPECT OF RELIGIOUS BELIEF OR REPRESENTATION,
UNBELIEVERS AMONG HIS JUDGES ARE LIKELY NOT TO UNDERSTAND AND ARE
ALMOST CERTAIN NOT TO BELIEVE HIM. 

AND THEN I DO NOT KNOW WHAT DEGREE OF SKEPTICISM OR DISBELIEF IN A
RELIGIOUS REPRESENTATION AMOUNTS TO ACTIONABLE FRAUD.  JAMES POINTS OUT
THAT "FAITH MEANS BELIEF IN SOMETHING CONCERNING WHICH DOUBT IS STILL
THEORETICALLY POSSIBLE."  FN2  BELIEF IN WHAT ONE MAY DEMONSTRATE TO
THE SENSES IS NOT FAITH.  ALL SCHOOLS OF RELIGIOUS THOUGHT MAKE
ENORMOUS ASSUMPTIONS, GENERALLY ON THE BASIS OF REVELATIONS
AUTHENTICATED BY SOME SIGN OR MIRACLE.  THE APPEAL IN SUCH MATTERS IS
TO A VERY DIFFERENT PLANE OF CREDULITY THAN IS INVOKED BY
REPRESENTATIONS OF SECULAR FACT IN COMMERCE.  SOME WHO PROFESS BELIEF
IN THE BIBLE READ LITERALLY WHAT OTHERS READ AS ALLEGORY OR METAPHOR,
AS THEY READ AESOP'S FABLES.  RELIGIOUS SYMBOLISM IS EVEN USED BY SOME
WITH THE SAME MENTAL RESERVATIONS ONE HAS IN TEACHING OF SANTA CLAUS OR
UNCLE SAM OR EASTER BUNNIES OR DISPASSIONATE JUDGES.  IT IS HARD IN
MATTERS SO MYSTICAL TO SAY HOW LITERALLY ONE IS BOUND TO BELIEVE THE
DOCTRINE HE TEACHES AND EVEN MORE DIFFICULT TO SAY HOW FAR IT IS
RELIANCE UPON A TEACHER'S LITERAL BELIEF WHICH INDUCES FOLLOWERS TO
GIVE HIM MONEY. 

THERE APPEAR TO BE PERSONS - LET US HOPE NOT MANY - WHO FIND
REFRESHMENT AND COURAGE IN THE TEACHINGS OF THE "I AM" CULT.  IF THE
MEMBERS OF THE SECT GET COMFORT FROM THE CELESTIAL GUIDANCE OF THEIR
"SAINT GERMAIN," HOWEVER DOUBTFUL IT SEEMS TO ME, IT IS HARD TO SAY
THAT THEY DO NOT GET WHAT THEY PAY FOR.  SCORES OF SECTS FLOURISH IN
THIS COUNTRY BY TEACHING WHAT TO ME ARE QUEER NOTIONS.  IT IS PLAIN
THAT THERE IS WIDE VARIETY IN AMERICAN RELIGIOUS TASTE.  THE BALLARDS
ARE NOT ALONE IN CATERING TO IT WITH A PRETTY DUBIOUS PRODUCT. 

THE CHIEF WRONG WHICH FALSE PROPHETS DO TO THEIR FOLLOWING IS NOT
FINANCIAL.  THE COLLECTIONS AGGREGATE A TEMPTING TOTAL, BUT INDIVIDUAL
PAYMENTS ARE NOT RUINOUS.  I DOUBT IF THE VIGILANCE OF THE LAW IS EQUAL
TO MAKING MONEY STICK BY OVER-CREDULOUS PEOPLE.  BUT THE REAL HARM IS
ON THE MENTAL AND SPIRITUAL PLANE.  THERE ARE THOSE WHO HUNGER AND
THIRST AFTER HIGHER VALUES WHICH THEY FEEL WANTING IN THEIR HUMDRUM
LIVES.  THEY LIVE IN MENTAL CONFUSION OR MORAL ANARCHY AND SEEK VAGUELY
FOR TRUTH AND BEAUTY AND MORAL SUPPORT.  WHEN THEY ARE DELUDED AND THEN
DISILLUSIONED, CYNICISM AND CONFUSION FOLLOW.  THE WRONG OF THESE
THINGS, AS I SEE IT, IS NOT IN THE MONEY THE VICTIMS PART WITH HALF SO
MUCH AS IN THE MENTAL AND SPIRITUAL POISON THEY GET.  BUT THAT IS
PRECISELY THE THING THE CONSTITUTION PUT BEYOND THE REACH OF THE
PROSECUTOR, FOR THE PRICE OF FREEDOM OF RELIGION OR OF SPEECH OR OF THE
PRESS IS THAT WE MUST PUT UP WITH, AND EVEN PAY FOR, A GOOD DEAL OF
RUBBISH. 

PROSECUTIONS OF THIS CHARACTER EASILY COULD DEGENERATE INTO RELIGIOUS
PERSECUTION.  I DO NOT DOUBT THAT RELIGIOUS LEADERS MAY BE CONVICTED OF
FRAUD FOR MAKING FALSE REPRESENTATIONS ON MATTERS OTHER THAN FAITH OR
EXPERIENCE, AS FOR EXAMPLE IF ONE REPRESENTS THAT FUNDS ARE BEING USED
TO CONSTRUCT A CHURCH WHEN IN FACT THEY ARE BEING USED FOR PERSONAL
PURPOSES.  BUT THAT IS NOT THIS CASE, WHICH REACHES INTO WHOLLY
DANGEROUS GROUND.  WHEN DOES LESS THAN FULL BELIEF IN A PROFESSED CREDO
BECOME ACTIONABLE FRAUD IF ONE IS SOLICITING GIFTS OR LEGACIES?  SUCH
INQUIRIES MAY DISCOMFORT ORTHODOX AS WELL AS UNCONVENTIONAL RELIGIOUS
TEACHERS, FOR EVEN THE MOST REGULAR OF THEM ARE SOMETIMES ACCUSED OF
TAKING THEIR ORTHODOXY WITH A GRAIN OF SALT. 

I WOULD DISMISS THE INDICTMENT AND HAVE DONE WITH THIS BUSINESS OF
JUDICIALLY EXAMINING OTHER PEOPLE'S FAITHS. 

FN1  WILLIAM JAMES, COLLECTED ESSAYS AND REVIEWS, PP. 427-8; SEE
GENERALLY HIS VARIETIES OF RELIGIOUS EXPERIENCE AND THE WILL TO
BELIEVE.  SEE ALSO BURTON, HEYDAY OF A WIZARD. 

FN2  WILLIAM JAMES, THE WILL TO BELIEVE, P. 90. 
..END :


















U.S. V. AMERICAN SURETY CO., 322 U.S. 96 


NO. 381.  ARGUED MARCH 27, 28, 1944.  - DECIDED APRIL 24, 1944.  - 136
F.2D 437, AFFIRMED. 


1.  UNDER THE GOVERNMENT CONSTRUCTION CONTRACT HERE INVOLVED, THE
GOVERNMENT WAS NOT ENTITLED TO RECOVER LIQUIDATED DAMAGES FOR DELAY IN
COMPLETION, WHERE, THOUGH SUBSEQUENTLY TO THE SPECIFIED COMPLETION
DATE, THE GOVERNMENT TERMINATED THE CONTRACTOR'S RIGHT TO PROCEED.  P.
100. 

2.  A GOVERNMENT CONSTRUCTION CONTRACT MAY VALIDLY PROVIDE FOR
LIQUIDATED DAMAGES IN LIMITED SITUATIONS ONLY.  ACT OF JUNE 6, 1902,
SEC. 21.  P. 101. 

UNITED STATES V. AMERICAN SURETY CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 320 U.S. 729, TO REVIEW A JUDGMENT WHICH REVERSED IN PART
A JUDGMENT FOR THE UNITED STATES IN A SUIT UPON A CONSTRUCTION
CONTRACT, 44 F.SUPP.  871. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

ON JUNE 24, 1931, ONE JOHN V. GROGAN ENTERED INTO A CONTRACT  FN1
WITH THE UNITED STATES TO CONSTRUCT CERTAIN PUBLIC BUILDINGS AT THE
UNITED STATES INSPECTION STATION AT BABB-PIEGAN, MONTANA.  RESPONDENT
BECAME THE SURETY ON GROGAN'S PERFORMANCE BOND TO THE UNITED STATES. 
THE COMPLETION DATE OF THE CONTRACT WAS MARCH 4, 1932, BUT THIS WAS
EXTENDED TO JUNE 20, 1933.  GROGAN FAILED TO COMPLETE THE WORK BY THE
EXTENDED DATE.  THE GOVERNMENT, HOWEVER, ALLOWED HIM TO CONTINUE WITH
THE CONSTRUCTION.  ON JULY 20, 1934, THIRTEEN MONTHS LATER, THE WORK
WAS STILL UNCOMPLETED.  PURSUANT TO ITS AUTHORITY UNDER ARTICLE 9 OF
THE CONSTRUCTION CONTRACT, THE GOVERNMENT THEREUPON TERMINATED GROGAN'S
RIGHT TO PROCEED WITH THE WORK BECAUSE OF HIS CONTINUING DEFAULT.  THE
GOVERNMENT FINISHED THE WORK THROUGH ANOTHER CONTRACTOR, EXPENDING
$2,044.04 MORE THAN IT WOULD HAVE BEEN REQUIRED TO EXPEND HAD GROGAN
COMPLETED THE WORK. 

THE UNITED STATES BROUGHT THIS SUIT IN THE DISTRICT COURT TO RECOVER
THE EXCESS COST AND ALSO TO RECOVER LIQUIDATED DAMAGES OF $9,875 FOR
THE DELAY OCCASIONED BY GROGAN'S DEFAULT.  THE LIQUIDATED DAMAGES WERE
COMPUTED ON THE BASIS OF AN AGREED $25 PER DAY FOR THE 395 DAYS BETWEEN
JUNE 20, 1933, THE EXTENDED DATE FOR COMPLETION, AND JULY 20, 1934,
WHEN THE CONTRACT RIGHT TO PROCEED WAS TERMINATED.  GROGAN WAS NOT
SERVED AND NEVER APPEARED.  THE DISTRICT COURT DENIED RESPONDENT'S
MOTION TO STRIKE FROM THE COMPLAINT THE PARAGRAPH ALLEGING A RIGHT TO
LIQUIDATED DAMAGES.  UNITED STATES V. GROGAN, 39 F.SUPP.  819.  THE
COURT SUBSEQUENTLY RENDERED JUDGMENT, AFTER TRIAL WITHOUT A JURY, FOR
THE UNITED STATES FOR $2,044.04 AS EXCESS COST OF COMPLETION AND $9,875
AS LIQUIDATED DAMAGES FOR DELAY.  SEE UNITED STATES V. GROGAN, 44
F.SUPP.  871.  ON APPEAL, THE COURT BELOW AFFIRMED THE JUDGMENT AS TO
THE EXCESS COST BUT REVERSED AS TO THE LIQUIDATED DAMAGES.  AMERICAN
SURETY CO. V. UNITED STATES, 136 F.2D 437.  THE PUBLIC IMPORTANCE OF
THE ISSUE OF THE GOVERNMENT'S RIGHT TO LIQUIDATED DAMAGES UNDER THESE
CIRCUMSTANCES LED US TO GRANT CERTIORARI.  320 U.S. 729. 

CONTRACTS FOR THE CONSTRUCTION OF ANY PUBLIC BUILDING UNDER THE CONTROL
OF THE TREASURY DEPARTMENT SHALL CONTAIN A STIPULATION CALLING FOR
LIQUIDATED DAMAGES FOR DELAY IN COMPLETION OF THE WORK AND THAT SUCH
STIPULATION SHALL BE CONCLUSIVE AND BINDING UPON ALL PARTIES.  PROOF OF
ACTUAL DAMAGES IS RENDERED UNNECESSARY.  THIS STATUTE, HOWEVER, DOES
NOT PURPORT TO REQUIRE LIQUIDATED DAMAGES TO BE PAID IN AMOUNTS OR
UNDER CIRCUMSTANCES BEYOND THOSE STIPULATED BY THE PARTIES.  ROBINSON
V. UNITED STATES, 261 U.S. 486, 488.  IT WAS PURSUANT TO THIS STATUTORY
COMMAND THAT ARTICLE 9 OF THE CONSTRUCTION CONTRACT IN ISSUE WAS
INSERTED.  THUS THIS ARTICLE IS DETERMINATIVE OF THE GOVERNMENT'S RIGHT
TO LIQUIDATED DAMAGES UNDER THE CIRCUMSTANCES OF THIS CASE. 

ARTICLE 9, SET OUT IN THE MARGIN,  FN3  PROVIDES IN EFFECT THAT:  (1)
IF THE CONTRACTOR REFUSES OR FAILS TO PROSECUTE THE WORK WITH PROPER
DILIGENCE OR TO COMPLETE HIS WORK WITHIN THE SPECIFIED TIME, THE
GOVERNMENT MAY AT ANY TIME TERMINATE HIS RIGHT TO PROCEED AND PROSECUTE
THE SAME TO COMPLETION BY CONTRACT OR OTHERWISE, IN WHICH CASE THE
GOVERNMENT MAY RECOVER FROM THE CONTRACTOR OR HIS SURETY ANY EXCESS
COST OCCASIONED THEREBY; (2) "IF THE GOVERNMENT DOES NOT TERMINATE THE
RIGHT OF THE CONTRACTOR TO PROCEED, THE CONTRACTOR SHALL CONTINUE THE
WORK, IN WHICH EVENT THE ACTUAL DAMAGES FOR THE DELAY WILL BE
IMPOSSIBLE TO DETERMINE AND IN LIEU THEREOF THE CONTRACTOR SHALL PAY TO
THE GOVERNMENT AS FIXED, AGREED, AND LIQUIDATED DAMAGES FOR EACH
CALENDAR DAY OF DELAY UNTIL THE WORK IS COMPLETED OR ACCEPTED THE
AMOUNT AS SET FORTH IN THE SPECIFICATIONS."  IN THIS INSTANCE,
PARAGRAPH 5 OF THE ACCOMPANYING SPECIFICATIONS PROVIDES THAT "THE
CONTRACTOR SHALL PAY TO THE GOVERNMENT THE AMOUNT OF TWENTY-FIVE
DOLLARS ($25.00) AS FIXED, AGREED, AND LIQUIDATED DAMAGES FOR EACH
CALENDAR DAY'S DELAY IN THE COMPLETION OF THE CONTRACT."  THIS
PARAGRAPH MERELY PROVIDES THE AGREED RATE OF THE PER DIEM LIQUIDATED
DAMAGES TO BE PAID IN THE SITUATIONS CONTEMPLATED BY ARTICLE 9.  IT IS
OBVIOUSLY NOT INTENDED TO SPELL OUT THE SITUATIONS WHERE LIQUIDATED
DAMAGES ARE TO BE PAID AND CANNOT, CONTRARY TO THE GOVERNMENT'S
CONTENTION, CONTROL THE LANGUAGE OF ARTICLE 9.  FN4 

THE IMPACT OF ARTICLE 9 ON THE FACTS OF THIS CASE IS CLEAR.  THE
CONTRACTOR HAVING FAILED TO COMPLETE HIS WORK WITHIN THE SPECIFIED
TIME, THE GOVERNMENT EXERCISED ITS OPTION UNDER THE FIRST PART OF
ARTICLE 9 TO TERMINATE HIS RIGHT TO PROCEED.  THIS POWER TO TERMINATE
COULD BE EXERCISED BEFORE OR ON THE STIPULATED COMPLETION DATE OR, AS
IN THIS CASE, AT ANY DATE THEREAFTER.  THE GOVERNMENT THEN MADE OTHER
ARRANGEMENTS TO COMPLETE THE CONSTRUCTION WORK AND WAS ENTITLED TO, AND
DID RECOVER, THE EXCESS COST OCCASIONED THEREBY.  IT THUS WAIVED ITS
RIGHT TO LIQUIDATED DAMAGES UNDER THE SECOND PART OF ARTICLE 9.  THAT
RIGHT IS CONDITIONED UPON THE GOVERNMENT NOT TERMINATING THE
CONTRACTOR'S RIGHT TO PROCEED.  WHERE THERE IS SUCH A TERMINATION, EVEN
THOUGH IT BE SUBSEQUENT TO THE STIPULATED COMPLETION DATE, THE RIGHT TO
LIQUIDATED DAMAGES DISAPPEARS.  SUCH HAS BEEN THE UNIFORM AND CORRECT
RESULT HERETOFORE REACHED IN THE APPLICATION OF THIS TYPE OF CONTRACT
PROVISION.  SEE UNITED STATES V. CUNNINGHAM, 125 F.2D 28; UNITED STATES
V. MARYLAND CASUALTY CO., 25 F.SUPP.  778; MARYLAND CASUALTY CO. V.
UNITED STATES, 93 CT. CLS. 247.  SEE ALSO FIDELITY & CASUALTY CO. V.
UNITED STATES, 81 CT. CLS. 495; COMMERCIAL CASUALTY INSURANCE CO. V.
UNITED STATES, 83 CT. CLS. 367; AMERICAN EMPLOYER'S INSURANCE CO. V.
UNITED STATES, 91 CT. CLS. 231. 

THE GOVERNMENT HAS URGED US TO READ THE SECOND PART OF ARTICLE 9 AS
THOUGH THE RIGHT TO LIQUIDATED DAMAGES WERE BASED, NOT UPON A CONDITION
PRECEDENT THAT THE GOVERNMENT NOT TERMINATE, BUT UPON A CONTINUING
CONDITION, UNDER WHICH LIQUIDATED DAMAGES WOULD ACCRUE "SO LONG AS THE
GOVERNMENT DOES NOT TERMINATE" THE CONTRACTOR'S RIGHT TO PROCEED.  THIS
IS SAID TO BE THE ONLY WAY TO GIVE FULL EFFECT TO THE PRIME PURPOSE OF
SEC. 21 OF THE 1902 ACT TO ELIMINATE THE UNCERTAINTIES AND DIFFICULTIES
OF ESTABLISHING ACTUAL DAMAGES TO THE GOVERNMENT BY DELAY IN OBTAINING
THE USE OF A PUBLIC BUILDING.  OTHERWISE PROOF IS REQUIRED OF ACTUAL
DAMAGES FOR THE DELAY WHERE TERMINATION OCCURS BEFORE COMPLETION IN THE
TEETH OF A STATUTE WHICH DISPENSES WITH SUCH PROOF IN SUITS ON A
CONSTRUCTION CONTRACT CONTAINING A STIPULATION "FOR LIQUIDATED DAMAGES
FOR DELAY."  THE GOVERNMENT ALSO CLAIMS THAT FAILURE TO ALLOW IT
LIQUIDATED DAMAGES UNDER THESE CIRCUMSTANCES LEAVES IT ENTIRELY TO THE
CONTRACTOR WHETHER LIQUIDATED DAMAGES WILL EVER BE PAID SINCE HE CAN
RELIEVE HIMSELF OF SUCH LIABILITY AT ANY TIME SHORT OF COMPLETION
SIMPLY BY ABANDONING THE WORK OR PROVOKING THE GOVERNMENT TO TERMINATE
HIS RIGHT TO PROCEED.  THE GOVERNMENT CONTRACTING OFFICERS IN TURN
WOULD BE INDUCED TO ALLOW THE CONTRACTOR TO PROCEED TO COMPLETION
DESPITE INEXCUSABLE DELAYS SO AS NOT TO FORFEIT MOUNTING LIQUIDATED
DAMAGES, THUS PRECLUDING PROMPT COMPLETION AND OCCUPANCY OF NEEDED
STRUCTURES. 

BUT WE ARE CONFRONTED HERE WITH AN UNAMBIGUOUS CONTRACT THAT CLEARLY
LIMITS THE RIGHT TO LIQUIDATED DAMAGES TO SITUATIONS WHERE THE
GOVERNMENT DOES NOT AT ANY TIME TERMINATE THE CONTRACTOR'S RIGHT TO
PROCEED.  THAT IT MAY BE WISER TO EXPAND THE RIGHT TO SUCH DAMAGES TO
EVERY CASE OF DELAY, REGARDLESS OF WHETHER THERE IS A TERMINATION, IS
OF COURSE NOT RELEVANT IN INTERPRETING AND APPLYING CLEAR WORDS OF
LIMITATION IN THE CONTRACT.  WE FIND NOTHING, MOREOVER, IN SEC. 21 OF
THE 1902 ACT THAT FILLS IN INTERSTICES DELIBERATELY LEFT OPEN BY THE
PARTIES.  NO STATUTORY LANGUAGE OR POLICY FORBIDS THE GOVERNMENT AND A
CONTRACTOR FROM STIPULATING FOR LIQUIDATED DAMAGES IN LIMITED
SITUATIONS ONLY.  INDEED THE STATUTE MAKES ANY SUCH STIPULATION
"CONCLUSIVE AND BINDING UPON ALL PARTIES," THEREBY FORECLOSING THE
GOVERNMENT'S RIGHT TO OBJECT TO ITS OWN FAILURE TO INSIST UPON
LIQUIDATED DAMAGES IN OTHER SITUATIONS.  SINCE WE ARE NOT JUSTIFIED IN
REWRITING THE CLEAR PROVISIONS OF THE CONTRACT TO INCLUDE WHAT MIGHT
WELL HAVE BEEN BUT WAS NOT INSERTED, THE JUDGMENT BELOW MUST BE
AFFIRMED. 

FN1  THE FORM OF CONTRACT USED WAS U.S. STANDARD FORM NO. 23
CONSTRUCTION CONTRACT, APPROVED BY THE PRESIDENT ON NOVEMBER 19, 1926,
AND USED BETWEEN 1926 AND 1935. 

FN2  C. 1036, 32 STAT. 310, 326; 40 U.S.C. SEC. 269.  THIS PROVIDES:
"IN ALL CONTRACTS ENTERED INTO WITH THE UNITED STATES FOR THE
CONSTRUCTION OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK UNDER THE
CONTROL OF THE TREASURY DEPARTMENT, A STIPULATION SHALL BE INSERTED FOR
LIQUIDATED DAMAGES FOR DELAY; AND THE SECRETARY OF THE TREASURY IS
AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE OR ANY PART OF SUCH DAMAGES
AS IN HIS DISCRETION MAY BE JUST AND EQUITABLE; AND IN ALL SUITS
HEREAFTER COMMENCED ON ANY SUCH CONTRACTS OR ON ANY BOND GIVEN IN
CONNECTION THEREWITH IT SHALL NOT BE NECESSARY FOR THE UNITED STATES,
WHETHER PLAINTIFF OR DEFENDANT, TO PROVE ACTUAL OR SPECIFIC DAMAGES
SUSTAINED BY THE GOVERNMENT BY REASON OF DELAYS, BUT SUCH STIPULATION
FOR LIQUIDATED DAMAGES SHALL BE CONCLUSIVE AND BINDING UPON ALL
PARTIES."  SEE H. REP. NO. 1794, P. 8(57TH CONG., 1ST SESS.); 35 CONG.
REC. 4935. 

FN3  "DELAYS - DAMAGES.  - IF THE CONTRACTOR REFUSES OR FAILS TO
PROSECUTE THE WORK, OR ANY SEPARABLE PART THEREOF, WITH SUCH DILIGENCE
AS WILL INSURE ITS COMPLETION WITHIN THE TIME SPECIFIED IN ARTICLE 1,
OR ANY EXTENSION THEREOF, OR FAILS TO COMPLETE SAID WORK WITHIN SUCH
TIME, THE GOVERNMENT MAY, BY WRITTEN NOTICE TO THE CONTRACTOR,
TERMINATE HIS RIGHT TO PROCEED WITH THE WORK OR SUCH PART OF THE WORK
AS TO WHICH THERE HAS BEEN DELAY.  IN SUCH EVENT, THE GOVERNMENT MAY
TAKE OVER THE WORK AND PROSECUTE THE SAME TO COMPLETION BY CONTRACT OR
OTHERWISE, AND THE CONTRACTOR AND HIS SURETIES SHALL BE LIABLE TO THE
GOVERNMENT FOR ANY EXCESS COST OCCASIONED THE GOVERNMENT THEREBY.  IF
THE CONTRACTOR'S RIGHT TO PROCEED IS SO TERMINATED, THE GOVERNMENT MAY
TAKE POSSESSION OF AND UTILIZE IN COMPLETING THE WORK SUCH MATERIALS,
APPLIANCES, AND PLANT AS MAY BE ON THE SITE OF THE WORK AND NECESSARY
THEREFOR.  IF THE GOVERNMENT DOES NOT TERMINATE THE RIGHT OF THE
CONTRACTOR TO PROCEED, THE CONTRACTOR SHALL CONTINUE THE WORK, IN WHICH
EVENT THE ACTUAL DAMAGES FOR THE DELAY WILL BE IMPOSSIBLE TO DETERMINE
AND IN LIEU THEREOF THE CONTRACTOR SHALL PAY TO THE GOVERNMENT AS
FIXED, AGREED, AND LIQUIDATED DAMAGES FOR EACH CALENDAR DAY OF DELAY,
UNTIL THE WORK IS COMPLETED OR ACCEPTED THE AMOUNT AS SET FORTH IN THE
SPECIFICATIONS OR ACCOMPANYING PAPERS AND THE CONTRACTOR AND HIS
SURETIES SHALL BE LIABLE FOR THE AMOUNT THEREOF.  ...  " 

FN4  THE DIRECTIONS FOR THE PREPARATION OF CONSTRUCTION CONTRACTS
UPON THE FORM HERE INVOLVED STATE THAT "THE SPECIFICATIONS SHOULD
INCLUDE A PARAGRAPH STATING THE AMOUNT OF LIQUIDATED DAMAGES THAT WILL
BE PAID BY THE CONTRACTOR FOR EACH CALENDAR DAY OF DELAY, AS INDICATED
IN ARTICLE 9 OF THE CONTRACT."  IT WAS PURSUANT TO THIS DIRECTION THAT
PARAGRAPH 5 OF THE SPECIFICATIONS IN THE INSTANT CASE WAS INSERTED. 
THIS INSTRUCTION INDICATES THAT THE SPECIFICATIONS ARE TO INCLUDE NO
MORE THAN "THE AMOUNT" OR RATE OF PER DIEM DAMAGES THAT ARE TO BE
APPLIED "AS INDICATED IN ARTICLE 9 OF THE CONTRACT." 
..END :





















MACEVOY CO. V. UNITED STATES, 322 U.S. 102 


NO. 483.  ARGUED MARCH 7, 1944.  - DECIDED APRIL 24, 1944.  - 137 F.2D
565, REVERSED. 


1.  WHERE A SOLD MATERIALS TO B WHO MERELY SOLD THEM TO A CONTRACTOR
FOR USE ON A GOVERNMENT PROJECT, A IS NOT ENTITLED TO RECOVER UPON A
PAYMENT BOND FURNISHED BY THE CONTRACTOR PURSUANT TO THE MILLER ACT. 
P. 104. 

2.  THE TERM "SUBCONTRACTOR" IN THE PROVISO OF SEC. 2(A) OF THE
MILLER ACT - "ANY PERSON HAVING DIRECT CONTRACTUAL RELATIONSHIP WITH A
SUBCONTRACTOR BUT NO CONTRACTUAL RELATIONSHIP EXPRESS OR IMPLIED WITH
THE CONTRACTOR FURNISHING SAID PAYMENT BOND SHALL HAVE A RIGHT OF
ACTION UPON SAID PAYMENT BOND"  - DOES NOT INCLUDE A MATERIALMAN WHO
MERELY SELLS MATERIALS TO THE CONTRACTOR.  P. 108. 

3.  THE SALUTARY POLICY OF THE MILLER ACT TO PROTECT THOSE WHOSE
LABOR AND MATERIALS GO INTO PUBLIC PROJECTS DOES NOT WARRANT DISREGARD
OF THE PLAIN WORDS OF LIMITATION IN THE PROVISO OF SEC. 2(A) OF THE
ACT.  P. 107. 

CLIFFORD F. MACEVOY CO. ET AL. V. UNITED STATES FOR THE USE AND
BENEFIT OF CALVIN TOMKINS CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 320 U.S. 733, TO REVIEW THE REVERSAL OF A JUDGMENT, 49
F.SUPP.  81, DISMISSING THE COMPLAINT IN A SUIT AGAINST A GOVERNMENT
CONTRACTOR AND SURETY UPON A PAYMENT BOND. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES ENTERED INTO A CONTRACT WITH THE PETITIONER
CLIFFORD F. MACEVOY COMPANY WHEREBY THE LATTER AGREED TO FURNISH THE
MATERIALS AND TO PERFORM THE WORK NECESSARY FOR THE CONSTRUCTION OF
DWELLING UNITS OF A DEFENSE HOUSING PROJECT NEAR LINDEN, NEW JERSEY, ON
A COST-PLUS-FIXED-FEE BASIS.  PURSUANT TO THE MILLER ACT,  FN1  MACEVOY
AS PRINCIPAL AND THE PETITIONER AETNA CASUALTY AND SURETY COMPANY AS
SURETY EXECUTED A PAYMENT BOND IN THE AMOUNT OF $1,000,000, CONDITIONED
ON THE PROMPT PAYMENT BY MACEVOY "TO ALL PERSONS SUPPLYING LABOR AND
MATERIAL IN THE PROSECUTION OF THE WORK PROVIDED FOR IN SAID
CONTRACT."  THE BOND WAS DULY ACCEPTED BY THE UNITED STATES. 

MACEVOY THEREUPON PURCHASED FROM JAMES H. MILLER & COMPANY CERTAIN
BUILDING MATERIALS FOR USE IN THE PROSECUTION OF THE WORK PROVIDED FOR
IN MACEVOY'S CONTRACT WITH THE GOVERNMENT.  MILLER IN TURN PURCHASED
THESE MATERIALS FROM THE RESPONDENT, CALVIN TOMKINS COMPANY.  MILLER
FAILED TO PAY TOMKINS A BALANCE OF $12,033.49.  THERE IS NO ALLEGATION
THAT MILLER AGREED TO PERFORM OR DID PERFORM ANY PART OF THE WORK ON
THE CONSTRUCTION PROJECT.  NOR IS IT DISPUTED THAT MACEVOY PAID MILLER
IN FULL FOR THE MATERIALS. 

WITHIN NINETY DAYS FROM THE DATE ON WHICH TOMKINS FURNISHED THE LAST
OF THE MATERIALS TO MILLER, TOMKINS GAVE WRITTEN NOTICE TO MACEVOY AND
THE SURETY OF THE EXISTENCE AND AMOUNT OF TOMKINS' CLAIM FOR MATERIALS
FURNISHED TO MILLER.  TOMKINS AS USE-PLAINTIFF THEN INSTITUTED THIS
ACTION AGAINST MACEVOY AND THE SURETY ON THE PAYMENT BOND.  THE
DISTRICT COURT GRANTED PETITIONERS' MOTION TO DISMISS THE COMPLAINT FOR
FAILURE TO STATE A CLAIM AGAINST THEM.  49 F.SUPP.  81.  THE CIRCUIT
COURT OF APPEALS REVERSED THE JUDGMENT.  137 F.2D 565.  WE GRANTED
CERTIORARI BECAUSE OF A NOVEL AND IMPORTANT QUESTION PRESENTED UNDER
THE MILLER ACT.  320 U.S. 733. 

SPECIFICALLY THE ISSUE IS WHETHER UNDER THE MILLER ACT A PERSON
SUPPLYING MATERIALS TO A MATERIALMAN OF A GOVERNMENT CONTRACTOR AND TO
WHOM AN UNPAID BALANCE IS DUE FROM THE MATERIALMAN CAN RECOVER ON THE
PAYMENT BOND EXECUTED BY THE CONTRACTOR.  WE HOLD THAT HE CANNOT. 

THE HEARD ACT,  FN2  WHICH WAS THE PREDECESSOR OF THE MILLER ACT,
REQUIRED GOVERNMENT CONTRACTORS TO EXECUTE PENAL BONDS FOR THE BENEFIT
OF "ALL PERSONS SUPPLYING HIM OR THEM WITH LABOR AND MATERIALS IN THE
PROSECUTION OF THE WORK PROVIDED FOR IN SUCH CONTRACT."  WE
CONSISTENTLY APPLIED A LIBERAL CONSTRUCTION TO THAT STATUTE, NOTING
THAT IT WAS REMEDIAL IN NATURE AND THAT IT CLEARLY EVIDENCED "THE
INTENTION OF CONGRESS TO PROTECT THOSE WHOSE LABOR OR MATERIAL HAS
CONTRIBUTED TO THE PROSECUTION OF THE WORK."  UNITED STATES V. AMERICAN
SURETY CO., 200 U.S. 197, 204.  SEE ALSO MANKIN V. UNITED STATES, 215
U.S. 533; U.S. FIDELITY & GUARANTY CO. V. BARTLETT, 231 U.S. 237;
BROGAN V. NATIONAL SURETY CO., 246 U.S. 257; FLEISCHMANN CONSTRUCTION
CO. V. UNITED STATES, 270 U.S. 349; STANDARD ACCIDENT INSURANCE CO. V.
UNITED STATES, 302 U.S. 442.  WE ACCORDINGLY HELD THAT THE PHRASE "ALL
PERSONS SUPPLYING (THE CONTRACTOR)  ... WITH LABOR AND MATERIALS"
INCLUDED NOT ONLY THOSE FURNISHING LABOR AND MATERIALS DIRECTLY TO THE
PRIME CONTRACTOR BUT ALSO COVERED THOSE WHO CONTRIBUTED LABOR AND
MATERIALS TO SUBCONTRACTORS.  UNITED STATES V. AMERICAN SURETY CO.,
SUPRA, 204; MANKIN V. UNITED STATES, SUPRA, 539; ILLINOIS SURETY CO. V.
JOHN DAVIS CO., 244 U.S. 376, 380.  WE HAD NO OCCASION, HOWEVER, TO
DETERMINE UNDER THAT ACT WHETHER THOSE WHO MERELY SOLD MATERIALS TO
MATERIALMEN, WHO IN TURN SOLD THEM TO THE PRIME CONTRACTORS, WERE
INCLUDED WITHIN THE PHRASE AND HENCE ENTITLED TO RECOVER ON THE PENAL
BOND.  FN3 

THE MILLER ACT, WHILE IT REPEALED THE HEARD ACT, REINSTATED ITS BASIC
PROVISIONS AND WAS DESIGNED PRIMARILY TO ELIMINATE CERTAIN PROCEDURAL
LIMITATIONS ON ITS BENEFICIARIES N4.  THERE WAS NO EXPRESSED PURPOSE IN
THE LEGISLATIVE HISTORY TO RESTRICT IN ANY WAY THE COVERAGE OF THE
HEARD ACT; THE INTENT RATHER WAS TO REMOVE THE PROCEDURAL DIFFICULTIES
FOUND TO EXIST UNDER THE EARLIER MEASURE AND THEREBY MAKE IT EASIER FOR
UNPAID CREDITORS TO REALIZE THE BENEFITS OF THE BOND.  SECTION 1(A)(2)
OF THE MILLER ACT REQUIRES EVERY GOVERNMENT CONTRACTOR, WHERE THE
AMOUNT OF THE CONTRACT EXCEEDS $2,000, TO FURNISH TO THE UNITED STATES
A PAYMENT BOND WITH A SURETY "FOR THE PROTECTION OF ALL PERSONS
SUPPLYING LABOR AND MATERIAL IN THE PROSECUTION OF THE WORK PROVIDED
FOR IN SAID CONTRACT FOR THE USE OF EACH SUCH PERSON."  SECTION 2(A)
FURTHER PROVIDES THAT "EVERY PERSON WHO HAS FURNISHED LABOR OR MATERIAL
IN THE PROSECUTION OF THE WORK PROVIDED FOR IN SUCH CONTRACT" AND WHO
HAS NOT BEEN PAID IN FULL THEREFOR WITHIN NINETY DAYS AFTER THE LAST
LABOR WAS PERFORMED OR MATERIAL SUPPLIED MAY BRING SUIT ON THE PAYMENT
BOND FOR THE UNPAID BALANCE.  A PROVISO THEN STATES: 

"PROVIDED, HOWEVER, THAT ANY PERSON HAVING DIRECT CONTRACTUAL
RELATIONSHIP WITH A SUBCONTRACTOR BUT NO CONTRACTUAL RELATIONSHIP
EXPRESS OR IMPLIED WITH THE CONTRACTOR FURNISHING SAID PAYMENT BOND
SHALL HAVE A RIGHT OF ACTION UPON THE SAID PAYMENT BOND UPON GIVING
WRITTEN NOTICE TO SAID CONTRACTOR WITHIN NINETY DAYS FROM THE DATE ON
WHICH SUCH PERSON DID OR PERFORMED THE LAST OF THE LABOR OR FURNISHED
OR SUPPLIED THE LAST OF THE MATERIAL FOR WHICH SUCH CLAIM IS MADE.  ...
" 

THE MILLER ACT, LIKE THE HEARD ACT, IS HIGHLY REMEDIAL IN NATURE.  IT
IS ENTITLED TO A LIBERAL CONSTRUCTION AND APPLICATION IN ORDER PROPERLY
TO EFFECTUATE THE CONGRESSIONAL INTENT TO PROTECT THOSE WHOSE LABOR AND
MATERIALS GO INTO PUBLIC PROJECTS.  FLEISHER ENGINEERING CO. V. UNITED
STATES, 311 U.S. 15, 17, 18; CF. UNITED STATES V. IRWIN, 316 U.S. 23,
29, 30.  BUT SUCH A SALUTARY POLICY DOES NOT JUSTIFY IGNORING PLAIN
WORDS OF LIMITATION AND IMPOSING WHOLESALE LIABILITY ON PAYMENT BONDS. 
OSTENSIBLY THE PAYMENT BOND IS FOR THE PROTECTION OF "ALL PERSONS
SUPPLYING LABOR AND MATERIAL IN THE PROSECUTION OF THE WORK" AND "EVERY
PERSON WHO HAS FURNISHED LABOR OR MATERIAL IN THE PROSECUTION OF THE
WORK" IS GIVEN THE RIGHT TO SUE ON SUCH PAYMENT BOND.  WHETHER THIS
STATUTORY LANGUAGE IS BROAD ENOUGH TO INCLUDE PERSONS SUPPLYING
MATERIAL TO MATERIALMEN AS WELL AS THOSE IN MORE REMOTE RELATIONSHIPS
WE NEED NOT DECIDE.  EVEN IF IT DID INCLUDE SUCH PERSONS WE CANNOT
DISREGARD THE LIMITATIONS ON LIABILITY WHICH CONGRESS INTENDED TO
IMPOSE AND DID IMPOSE IN THE PROVISO OF SEC. 2(A).  HOWEVER INCLUSIVE
MAY BE THE GENERAL LANGUAGE OF A STATUTE, IT "WILL NOT BE HELD TO APPLY
TO A MATTER SPECIFICALLY DEALT WITH IN ANOTHER PART OF THE SAME
ENACTMENT.  ...  SPECIFIC TERMS PREVAIL OVER THE GENERAL IN THE SAME OR
ANOTHER STATUTE WHICH OTHERWISE MIGHT BE CONTROLLING."  GINSBERG & SONS
V. POPKIN, 285 U.S. 204, 208. 

THE PROVISO OF SEC. 2(A), WHICH HAD NO COUNTERPART IN THE HEARD ACT,
MAKES CLEAR THAT THE RIGHT TO BRING SUIT ON A PAYMENT BOND IS LIMITED
TO (1) THOSE MATERIALMEN, LABORERS AND SUBCONTRACTORS WHO DEAL DIRECTLY
WITH THE PRIME CONTRACTOR AND (2) THOSE MATERIALMEN, LABORERS AND
SUBSUBCONTRACTORS WHO, LACKING EXPRESS OR IMPLIED CONTRACTUAL
RELATIONSHIP WITH THE PRIME CONTRACTOR, HAVE DIRECT CONTRACTUAL
RELATIONSHIP WITH A SUBCONTRACTOR AND WHO GIVE THE STATUTORY NOTICE OF
THEIR CLAIMS TO THE PRIME CONTRACTOR.  TO ALLOW THOSE IN MORE REMOTE
RELATIONSHIPS TO RECOVER ON THE BOND WOULD BE CONTRARY TO THE CLEAR
LANGUAGE OF THE PROVISO AND TO THE EXPRESSED WILL OF THE FRAMERS OF THE
ACT.  FN5  MOREOVER, IT WOULD LEAD TO THE ABSURD RESULT OF REQUIRING
NOTICE FROM PERSONS IN DIRECT CONTRACTUAL RELATIONSHIP WITH A
SUBCONTRACTOR BUT NOT FROM MORE REMOTE CLAIMANTS. 

THE ULTIMATE QUESTION IN THIS CASE, THEREFORE, IS WHETHER MILLER, THE
MATERIALMAN TO WHOM TOMKINS SOLD THE GOODS AND WHO IN TURN SUPPLIED
THEM TO MACEVOY, WAS A SUBCONTRACTOR WITHIN THE MEANING OF THE
PROVISO.  IF HE WAS, TOMKINS' DIRECT CONTRACTUAL RELATIONSHIP WITH HIM
ENABLES TOMKINS TO RECOVER ON MACEVOY'S PAYMENT BOND.  IF MILLER WAS
NOT A SUBCONTRACTOR, TOMKINS STANDS IN TOO REMOTE A RELATIONSHIP TO
SECURE THE BENEFITS OF THE BOND. 

THE MILLER ACT ITSELF MAKES NO ATTEMPT TO DEFINE THE WORD
"SUBCONTRACTOR."  WE ARE THUS FORCED TO UTILIZE ORDINARY JUDICIAL TOOLS
OF DEFINITION.  WHETHER THE WORD INCLUDES LABORERS AND MATERIALMEN IS
NOT SUBJECT TO EASY SOLUTION, FOR THE WORD HAS NO SINGLE EXACT
MEANING.  FN6  IN A BROAD, GENERIC SENSE A SUBCONTRACTOR INCLUDES
ANYONE WHO HAS A CONTRACT TO FURNISH LABOR OR MATERIAL TO THE PRIME
CONTRACTOR.  IN THAT SENSE MILLER WAS A SUBCONTRACTOR.  BUT UNDER THE
MORE TECHNICAL MEANING, AS ESTABLISHED BY USAGE IN THE BUILDING TRADES,
A SUBCONTRACTOR IS ONE WHO PERFORMS FOR AND TAKES FROM THE PRIME
CONTRACTOR A SPECIFIC PART OF THE LABOR OR MATERIAL REQUIREMENTS OF THE
ORIGINAL CONTRACT, THUS EXCLUDING ORDINARY LABORERS AND MATERIALMEN. 
TO DETERMINE WHICH MEANING CONGRESS ATTACHED TO THE WORD IN THE MILLER
ACT, WE MUST LOOK TO THE CONGRESSIONAL HISTORY OF THE STATUTE AS WELL
AS TO THE PRACTICAL CONSIDERATIONS UNDERLYING THE ACT. 

IT IS APPARENT FROM THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE
COMMITTEE ON THE JUDICIARY LEADING TO THE ADOPTION OF THE MILLER ACT
THAT THE PARTICIPANTS HAD IN MIND A CLEAR DISTINCTION BETWEEN
SUBCONTRACTORS AND MATERIALMEN.  IN OPENING THE HEARINGS,
REPRESENTATIVE MILLER, THE SPONSOR OF THE BILL THAT BECAME THE MILLER
ACT, STATED IN CONNECTION WITH THE VARIOUS PROPOSED BILLS THAT "WE
WOULD LIKE TO HAVE THE REACTION AND OPINION OF MEMBERS IN REFERENCE TO
THOSE BILLS THAT DEAL WITH THE GENERAL SUBJECT OF REQUIRING A BOND FOR
THE BENEFIT OF LABORERS AND MATERIALMEN WHO DEAL WITH SUBCONTRACTORS ON
PUBLIC WORKS."  FN7  AND THE AUTHORITATIVE COMMITTEE REPORT  FN8 MADE
NUMEROUS REFERENCES TO AND DISTINGUISHED AMONG "LABORERS, MATERIALMEN
AND SUBCONTRACTORS."  SIMILAR UNCONTRADICTED STATEMENTS WERE MADE IN
BOTH HOUSES OF CONGRESS WHEN THE ACT WAS PENDING BEFORE THEM.  FN9  THE
FACT THAT SUBCONTRACTORS WERE SO CONSISTENTLY DISTINGUISHED FROM
MATERIALMEN AND LABORERS IN THE COURSE OF THE FORMATION OF THE ACT IS
PERSUASIVE EVIDENCE THAT THE WORD "SUBCONTRACTOR" WAS USED IN THE
PROVISO OF SEC. 2(A) IN ITS TECHNICAL SENSE SO AS TO EXCLUDE
MATERIALMEN AND LABORERS.  FN10 

PRACTICAL CONSIDERATIONS UNDERLYING THE ACT LIKEWISE SUPPORT THIS
CONCLUSION.  CONGRESS CANNOT BE PRESUMED, IN THE ABSENCE OF EXPRESS
STATUTORY LANGUAGE, TO HAVE INTENDED TO IMPOSE LIABILITY ON THE PAYMENT
BOND IN SITUATIONS WHERE IT IS DIFFICULT OR IMPOSSIBLE FOR THE PRIME
CONTRACTOR TO PROTECT HIMSELF.  THE RELATIVELY FEW SUBCONTRACTORS WHO
PERFORM PART OF THE ORIGINAL CONTRACT REPRESENT IN A SENSE THE PRIME
CONTRACTOR AND ARE WELL KNOWN TO HIM.  IT IS EASY FOR THE PRIME
CONTRACTOR TO SECURE HIMSELF AGAINST LOSS BY REQUIRING THE
SUBCONTRACTORS TO GIVE SECURITY BY BOND, OR OTHERWISE, FOR THE PAYMENT
OF THOSE WHO CONTRACT DIRECTLY WITH THE SUBCONTRACTORS.  UNITED STATES
V. AMERICAN SURETY CO., SUPRA, 204; MANKIN V. UNITED STATES, SUPRA,
540.  BUT THIS METHOD OF PROTECTION IS GENERALLY INADEQUATE TO COPE
WITH REMOTE AND UNDETERMINABLE LIABILITIES INCURRED BY AN ORDINARY
MATERIALMAN, WHO MAY BE A MANUFACTURER, A WHOLESALER OR A RETAILER. 
FN11 MANY SUCH MATERIALMEN ARE USUALLY INVOLVED IN LARGE PROJECTS; THEY
DEAL IN TURN WITH INNUMERABLE SUB-MATERIALMEN AND LABORERS.  TO IMPOSE
UNLIMITED LIABILITY UNDER THE PAYMENT BOND TO THOSE SUB-MATERIALMEN AND
LABORERS IS TO CREATE A PRECARIOUS AND PERILOUS RISK ON THE PRIME
CONTRACTOR AND HIS SURETY.  TO SANCTION SUCH A RISK REQUIRES CLEAR
LANGUAGE IN THE STATUTE AND IN THE BOND SO AS TO LEAVE NO ALTERNATIVE. 
FN12  HERE THE PROVISO OF SEC. 2(A) OF THE ACT FORBIDS THE IMPOSITION
OF SUCH A RISK, THEREBY FORECLOSING TOMKINS' RIGHT TO SUE ON THE
PAYMENT BOND. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED. 

FN1 ACT OF AUGUST 24, 1935, C. 642, 49 STAT. 793; 40 U.S.C. SEC. 270A
ET SEQ. 

FN2  ACT OF AUGUST 13, 1894, C. 280, 28 STAT. 278, AS AMENDED BY ACT
OF FEBRUARY 24, 1905, C. 778, 33 STAT. 811; 40 U.S.C. SEC. 270. 

FN3  IN UNITED STATES V. AMERICAN SURETY CO., 200 U.S. 197, 204, WE
SAID, "THERE IS NO LANGUAGE IN THE STATUTE NOR IN THE BOND WHICH IS
THEREIN AUTHORIZED LIMITING THE RIGHT OF RECOVERY TO THOSE WHO FURNISH
MATERIAL OR LABOR DIRECTLY TO THE CONTRACTOR, BUT ALL PERSONS SUPPLYING
THE CONTRACTOR WITH LABOR OR MATERIALS IN THE PROSECUTION OF THE WORK
PROVIDED FOR IN THE CONTRACT ARE TO BE PROTECTED.  THE SOURCE OF THE
LABOR OR MATERIAL IS NOT INDICATED OR CIRCUMSCRIBED.  IT IS ONLY
REQUIRED TO BE 'SUPPLIED' TO THE CONTRACTOR IN THE PROSECUTION OF THE
WORK PROVIDED FOR."  THIS BROAD LANGUAGE, WHICH WENT BEYOND THAT
REQUIRED BY THE FACTS AND THE HOLDING IN THAT CASE, MIGHT SEEM TO
JUSTIFY RECOVERY BY PERSONS SUPPLYING MATERIALS TO MATERIALMEN.  SUCH
WAS THE HOLDING IN UTAH CONSTRUCTION CO. V. UNITED STATES, 15 F.2D 21. 
OUR DENIAL OF CERTIORARI IN THAT CASE, 273 U.S. 745, WAS NOT A
DETERMINATION BY US OF THE ISSUE, HOWEVER.  COMPARE CONTINENTAL
CASUALTY CO. V. NORTH AMERICAN CEMENT CORP., 91 F.2D 307, EXPRESSING
THE OPPOSITE OPINION UNDER AN IDENTICAL DISTRICT OF COLUMBIA STATUTE. 
FN4  UNDER THE HEARD ACT, A SINGLE BOND WAS REQUIRED TO PROTECT BOTH
THE GOVERNMENT AND THE SUPPLIERS OF LABOR AND MATERIALS.  THE
GOVERNMENT WAS GIVEN THE SOLE RIGHT TO SUE ON THE BOND FOR SIX MONTHS
AFTER COMPLETION OF THE WORK AND FINAL SETTLEMENT.  OTHER CLAIMANTS
COULD SUE ONLY THEREAFTER AND HAD TO JOIN IN A SINGLE ACTION.  SERIOUS
INCONVENIENCES AND DELAYS RESULTED.  THE CLAIMANTS, OFTEN IN NEED OF
IMMEDIATE FUNDS, WERE COMPELLED TO SETTLE MERITORIOUS CLAIMS FOR LESS
THAN THE FULL AMOUNT.  THE MILLER ACT WAS DESIGNED TO MEET THESE
DIFFICULTIES BY REQUIRING THAT THE PRIME CONTRACTOR EXECUTE TWO BONDS -
A PERFORMANCE BOND TO PROTECT THE GOVERNMENT AND A PAYMENT BOND TO
PROTECT THE CREDITORS.  CREDITORS CAN SUE ON THE LATTER BOND WITHOUT
WAITING FOR THE GOVERNMENT AND EVEN WITHOUT WAITING FOR COMPLETION OF
THE PROJECT.  EACH CREDITOR MAY SUE SEPARATELY NINETY DAYS AFTER THE
LABOR IS COMPLETELY PERFORMED OR MATERIALS FULLY SUPPLIED.  HEARINGS ON
H.R. 2068, ET AL., BONDS OF CONTRACTORS ON PUBLIC WORKS, HOUSE
COMMITTEE ON THE JUDICIARY, 74TH CONG., 1ST SESS.; 79 CONG. REC. 11702,
13382; H. REP. NO. 1263 AND S. REP. NO. 1238(74TH CONG., 1ST SESS.). 

FN5  "A SUB-SUBCONTRACTOR MAY AVAIL HIMSELF OF THE PROTECTION OF THE
BOND BY GIVING WRITTEN NOTICE TO THE CONTRACTOR, BUT THAT IS AS FAR AS
THE BILL GOES.  IT IS NOT FELT THAT MORE REMOTE RELATIONSHIPS OUGHT TO
COME WITHIN THE PURVIEW OF THE BOND."  H. REP. NO. 1263(74TH CONG., 1ST
SESS.), P. 3. 

FN6  IN ANALOGOUS SITUATIONS, STATE AND LOWER FEDERAL COURTS HAVE
EXPRESSED DIVERGENT OPINIONS AS TO WHETHER THE WORD "SUBCONTRACTOR"
INCLUDES LABORERS AND MATERIALMEN.  SEE ANNOTATION IN 141 A.L.R. 321
FOR A SUMMARY OF THE CONFLICTING CASES.  WE HAVE NOT HERETOFORE HAD
OCCASION TO DEFINE THE WORD IN THIS CONNECTION.  ANY LOOSE,
INTERCHANGEABLE USE OF "SUBCONTRACTOR" AND "MATERIALMAN" IN ANY PRIOR
DECISION OF OURS IS WITHOUT SIGNIFICANCE. 

FN7  HEARINGS ON H.R. 2068, ET AL., BONDS OF CONTRACTORS ON PUBLIC
WORKS, HOUSE COMMITTEE ON THE JUDICIARY, 74TH CONG., 1ST SESS., P. 1. 
SEE ALSO STATEMENTS BY REP. MILLER, ID., PP. 18, 26, 60, 67, 74; REP.
ROBSION, P. 30; REP. MCLAUGHLIN, P. 73; REP. DOCKWEILER, PP. 12-22;
REP. CELLER, PP. 83, 84, 89; EDWARD H. CUSHMAN, PP. 23-31, 85. 

FN8  H. REP. NO. 1263(74TH CONG., 1ST SESS.), PP. 1, 2. 

FN9  REP. MILLER STATED IN THE HOUSE THAT "THIS BILL MERELY PROVIDES
THAT IN THE CONSTRUCTION OF PUBLIC BUILDINGS AND OTHER PUBLIC WORKS
THERE SHALL BE TWO BONDS, ONE FOR THE PERFORMANCE OF THE CONTRACT WITH
THE GOVERNMENT, AND THE OTHER A PAYMENT BOND FOR THE PROTECTION OF
SUBCONTRACTORS AND THOSE FURNISHING THE LABOR AND MATERIAL.  UNDER THE
PRESENT LAW WE HAVE BUT ONE BOND, WITH A DUAL OBLIGATION, BUT IT IS NOT
SATISFACTORY IN THAT IT DOES NOT AFFORD PROTECTION TO THE
SUBCONTRACTORS, MATERIALMEN, AND LABORERS.  THIS MERELY PROVIDES FOR
TWO BONDS, ONE FOR THE PROTECTION OF THE GOVERNMENT'S INTERESTS, AND
THE OTHER FOR THE PROTECTION OF THE RIGHTS OF LABOR, THE
SUBCONTRACTORS, AND MATERIAL FURNISHERS."  79 CONG. REC. 11702. 

SEN. BURKE SAID IN THE SENATE THAT "THIS BILL WOULD AMEND THAT LAW BY
REQUIRING AN ADDITIONAL BOND, A PAYMENT BOND, FOR THE PROTECTION OF
MATERIALMEN AND LABORERS, SUBCONTRACTORS, AND ALL WHO PUT FORTH THEIR
LABOR OR FURNISH MATERIALS OR INCUR EXPENDITURES IN CONNECTION WITH THE
WORK."  79 CONG. REC. 13382. 

FN10  SEE, IN GENERAL, CAMPBELL, "THE PROTECTION OF LABORERS AND
MATERIALMEN UNDER CONSTRUCTION BONDS," 3 UNIV.  OF CHICAGO L. REV. 1;
ANNOTATION, 77 A.L.R. 21. 

FN11  SEE NOTE, "THE WIDENING SCOPE OF PROTECTION OF STATUTORY
CONSTRUCTION BONDS," 45 HARVARD L. REV. 1236. 

FN12  CONGRESS HAS SHOWN ITS ABILITY IN OTHER STATUTES TO MAKE CLEAR
AN INTENT TO INCLUDE MATERIALMEN WITHIN THE MEANING OF THE WORD
"SUBCONTRACTOR."  SEE SEC. 301(A)(3) OF THE ACT OF DEC. 2, 1942, 56
STAT. 1035, 42 U.S.C. SUPP. II, SEC. 1651(A)(3), PROVIDING THAT THE
PROVISIONS OF THE ACT SHALL NOT APPLY TO EMPLOYEES OF A "SUBCONTRACTOR
WHO IS ENGAGED EXCLUSIVELY IN FURNISHING MATERIALS OR SUPPLIES."  IN
OTHER STATUTES, CONGRESS HAS CLEARLY USED THE TERM "SUBCONTRACTOR" IN
CONTRAST TO "MATERIALMAN."  SEE 40 U.S.C. SEC. 407(B); 41 U.S.C. SEC.
10B (A) AND (B); 41 U.S.C. SEC. 28. 
..END :

















BOARD V. HEARST PUBLICATIONS, 322 U.S. 111 


ARGUED FEBRUARY 8, 9, 1944.  - DECIDED APRIL 24, 1944.  - 136 F.2D 608,
REVERSED. 


1.  THE MEANING OF THE TERM "EMPLOYEE" IN THE NATIONAL LABOR RELATIONS
ACT IS TO BE DETERMINED NOT EXCLUSIVELY BY REFERENCE TO COMMON-LAW
STANDARDS, LOCAL LAW, OR LEGAL CLASSIFICATIONS MADE FOR OTHER PURPOSES,
BUT WITH REGARD ALSO TO THE HISTORY, CONTEXT AND PURPOSES OF THE ACT
AND TO THE ECONOMIC FACTS OF THE PARTICULAR RELATIONSHIP.  PP. 120,
129. 

2.  THE DETERMINATION OF THE NATIONAL LABOR RELATIONS BOARD THAT, IN
THE CIRCUMSTANCES OF THE CASE, A PERSON IS AN "EMPLOYEE" UNDER THE
NATIONAL LABOR RELATIONS ACT, MAY NOT BE SET ASIDE ON REVIEW IF IT HAS
WARRANT IN THE RECORD AND A REASONABLE BASIS IN LAW.  P. 130. 

3.  THE CONCLUSION OF THE NATIONAL LABOR RELATIONS BOARD THAT
"NEWSBOYS" DISTRIBUTING RESPONDENTS' PAPERS ON THE STREETS OF THE CITY
WERE EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT IS SUPPORTED BY
THE FINDINGS AND THE EVIDENCE AND HAS AMPLE BASIS IN THE LAW.  P. 131. 

THE BOARD FOUND THAT THE "NEWSBOYS" WORK CONTINUOUSLY AND REGULARLY,
RELY UPON THEIR EARNINGS FOR THE SUPPORT OF THEMSELVES AND THEIR
FAMILIES, AND HAVE THEIR TOTAL WAGES INFLUENCED IN LARGE MEASURE BY THE
PUBLISHERS (RESPONDENTS) WHO DICTATE THEIR BUYING AND SELLING PRICES,
FIX THEIR MARKETS AND CONTROL THEIR SUPPLY OF PAPERS; THAT THEIR HOURS
OF WORK AND THEIR EFFORTS ON THE JOB ARE SUPERVISED AND TO SOME EXTENT
PRESCRIBED BY THE PUBLISHERS OR THE PUBLISHERS' AGENTS; AND THAT A
SUBSTANTIAL PART OF THEIR SALES EQUIPMENT AND ADVERTISING MATERIALS IS
FURNISHED BY THE PUBLISHERS WITH THE INTENTION THAT IT BE USED FOR THE
PUBLISHERS' BENEFIT. 

4.  THE BOARD'S DESIGNATION OF THE COLLECTIVE BARGAINING UNITS IN
THIS CASE - (1) FULL-TIME NEWSBOYS AND "CHECKMEN," ENGAGED TO SELL
PAPERS WITHIN THE CITY, AND EXCLUDING BOOTJACKERS, TEMPORARY, CASUAL,
AND PART-TIME NEWSBOYS; AND (2) NEWSBOYS SELLING AT ESTABLISHED SPORTS
IN THE CITY, FOUR OR MORE HOURS PER DAY, FIVE OR MORE DAYS PER WEEK,
EXCEPT TEMPORARY NEWSBOYS - WAS WITHIN ITS DISCRETION AND IS
SUSTAINED.  P. 132. 

(A)  THAT THE BOARD'S SELECTION OF THE COLLECTIVE BARGAINING UNITS
EMPHASIZES DIFFERENCE IN TENURE RATHER THAN IN FUNCTION WAS, ON THE
RECORD IN THIS CASE, NOT AN ABUSE OF DISCRETION.  P. 133. 

(B)  THE BOARD'S EXCLUSION OF SUBURBAN NEWSBOYS FROM THE COLLECTIVE
BARGAINING UNITS, ON THE GROUND THAT THEY WERE NOT ORGANIZED BY THE
UNION, WAS, ON THE RECORD IN THIS CASE, NOT AN ABUSE OF DISCRETION.  P.
133. 

NATIONAL LABOR RELATIONS BOARD V. HEARST PUBLICATIONS, INC. 

NO. 336.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT* . 

*TOGETHER WITH NO. 337, NATIONAL LABOR RELATIONS BOARD V.
STOCKHOLDERS PUBLISHING CO., INC., NO. 338, NATIONAL LABOR RELATIONS
BOARD V. HEARST PUBLICATIONS, INC., AND NO. 339, NATIONAL LABOR
RELATIONS BOARD V. TIMES-MIRROR CO., ALSO ON WRITS OF CERTIORARI TO THE
CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 320 U.S. 728, TO REVIEW DECREES DENYING ENFORCEMENT OF
ORDERS OF THE NATIONAL LABOR RELATIONS BOARD (39 N.L.R.B. 1245, 1256)
AND SETTING ASIDE THE ORDERS. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARISE FROM THE REFUSAL OF RESPONDENTS, PUBLISHERS OF FOUR
LOS ANGELES DAILY NEWSPAPERS, TO BARGAIN COLLECTIVELY WITH A UNION
REPRESENTING NEWSBOYS WHO DISTRIBUTE THEIR PAPERS ON THE STREETS OF
THAT CITY.  RESPONDENTS' CONTENTION THAT THEY WERE NOT REQUIRED TO
BARGAIN BECAUSE THE NEWSBOYS ARE NOT THEIR "EMPLOYEES" WITHIN THE
MEANING OF THAT TERM IN THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 450,
29 U.S.C. SEC. 152,  FN1  PRESENTS THE IMPORTANT QUESTION WHICH WE
GRANTED CERTIORARI  FN2 TO RESOLVE. 

THE PROCEEDINGS BEFORE THE NATIONAL LABOR RELATIONS BOARD WERE BEGUN
WITH THE FILING OF FOUR PETITIONS FOR INVESTIGATION AND CERTIFICATION
FN3  BY LOS ANGELES NEWSBOYS LOCAL INDUSTRIAL UNION NO. 75.  HEARINGS
WERE HELD IN A CONSOLIDATED PROCEEDING  FN4  AFTER WHICH THE BOARD MADE
FINDINGS OF FACT AND CONCLUDED THAT THE REGULAR FULL-TIME NEWSBOYS
SELLING EACH PAPER WERE EMPLOYEES WITHIN THE ACT AND THAT QUESTIONS
AFFECTING COMMERCE CONCERNING THE REPRESENTATION OF EMPLOYEES HAD
ARISEN.  IT DESIGNATED APPROPRIATE UNITS AND ORDERED ELECTIONS.  28
N.L.R.B. 1006.  FN5  AT THESE THE UNION WAS SELECTED AS THEIR
REPRESENTATIVE BY MAJORITIES OF THE ELIGIBLE NEWSBOYS.  AFTER THE UNION
WAS APPROPRIATELY CERTIFIED, 33 N.L.R.B. 941, 36 N.L.R.B. 285, THE
RESPONDENTS REFUSED TO BARGAIN WITH IT.  THEREUPON PROCEEDINGS UNDER
SEC. 10, 49 STAT. 453-455, 29 U.S.C. SEC. 160, WERE INSTITUTED, A
HEARING  FN6  WAS HELD AND RESPONDENTS WERE FOUND TO HAVE VIOLATED
SECS. 8(1) AND 8(5) OF THE ACT, 49 STAT. 452-453, 29 U.S.C. SEC.
158(1), (5).  THEY WERE ORDERED TO CEASE AND DESIST FROM SUCH
VIOLATIONS AND TO BARGAIN COLLECTIVELY WITH THE UNION UPON REQUEST.  39
N.L.R.B. 1245, 1256. 

UPON RESPONDENTS' PETITIONS FOR REVIEW AND THE BOARD'S PETITIONS FOR
ENFORCEMENT, THE CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING, SET
ASIDE THE BOARD'S ORDERS.  REJECTING THE BOARD'S ANALYSIS, THE COURT
INDEPENDENTLY EXAMINED THE QUESTION WHETHER THE NEWSBOYS ARE EMPLOYEES
WITHIN THE ACT, DECIDED THAT THE STATUTE IMPORTS COMMON-LAW STANDARDS
TO DETERMINE THAT QUESTION, AND HELD THE NEWSBOYS ARE NOT EMPLOYEES. 
136 F.2D 608. 

THE FINDINGS OF THE BOARD DISCLOSE THAT THE LOS ANGELES TIMES AND THE
LOS ANGELES EXAMINER, PUBLISHED DAILY AND SUNDAY,  FN7  ARE MORNING
PAPERS.  EACH PUBLISHES SEVERAL EDITIONS WHICH ARE DISTRIBUTED ON THE
STREETS DURING THE EVENING BEFORE THEIR DATELINE, BETWEEN ABOUT 6:00 OR
6:30 P.M. AND 1:00 A.M., AND OTHER EDITIONS DISTRIBUTED DURING THE
FOLLOWING MORNING UNTIL ABOUT 10:00 O'CLOCK.  THE LOS ANGELES EVENING
HERALD AND EXPRESS, PUBLISHED EVERY DAY BUT SUNDAY, IS AN EVENING
PAPER, WHICH HAS SIX EDITIONS ON THE PRESSES BETWEEN 9:00 A.M. AND 5:30
P.M.  FN8  THE NEWS, ALSO PUBLISHED EVERY DAY BUT SUNDAY, IS A TWENTY
FOUR HOUR PAPER WITH TEN EDITIONS.  FN9 

THE PAPERS ARE DISTRIBUTED TO THE ULTIMATE CONSUMER THROUGH A VARIETY
OF CHANNELS, INCLUDING INDEPENDENT DEALERS AND NEWSSTANDS OFTEN
ATTACHED TO DRUG, GROCERY OR CONFECTIONERY STORES, CARRIERS WHO MAKE
HOME DELIVERIES, AND NEWSBOYS WHO SELL ON THE STREETS OF THE CITY AND
ITS SUBURBS.  ONLY THE LAST OF THESE ARE INVOLVED IN THIS CASE. 

THE NEWSBOYS WORK UNDER VARYING TERMS AND CONDITIONS.  THEY MAY BE
"BOOTJACKERS," SELLING TO THE GENERAL PUBLIC AT PLACES OTHER THAN
ESTABLISHED CORNERS, OR THEY MAY SELL AT FIXED "SPOTS."  THEY MAY SELL
ONLY CASUALLY OR PARTTIME, OR FULL-TIME; AND THEY MAY BE EMPLOYED
REGULARLY AND CONTINUOUSLY OR ONLY TEMPORARILY.  THE UNITS WHICH THE
BOARD DETERMINED TO BE APPROPRIATE ARE COMPOSED OF THOSE WHO SELL FULL
TIME AT ESTABLISHED SPOTS.  THOSE VENDORS, MISNAMED BOYS, ARE GENERALLY
MATURE MEN, DEPENDENT UPON THE PROCEEDS OF THEIR SALES FOR THEIR
SUSTENANCE, AND FREQUENTLY SUPPORTERS OF FAMILIES.  WORKING THUS AS
NEWS VENDORS ON A REGULAR BASIS, OFTEN FOR A NUMBER OF YEARS, THEY FORM
A STABLE GROUP WITH RELATIVELY LITTLE TURNOVER, IN CONTRAST TO
SCHOOLBOYS AND OTHERS WHO SELL AS BOOTJACKERS, TEMPORARY AND CASUAL
DISTRIBUTORS. 

OVER-ALL CIRCULATION AND DISTRIBUTION OF THE PAPERS ARE UNDER THE
GENERAL SUPERVISION OF CIRCULATION MANAGERS.  BUT FOR PURPOSES OF
STREET DISTRIBUTION EACH PAPER HAS DIVIDED METROPOLITAN LOS ANGELES
INTO GEOGRAPHIC DISTRICTS.  EACH DISTRICT IS UNDER THE DIRECT AND CLOSE
SUPERVISION OF A DISTRICT MANAGER.  HIS FUNCTION IN THE MECHANICS OF
DISTRIBUTION IS TO SUPPLY THE NEWSBOYS IN HIS DISTRICT WITH PAPERS
WHICH HE OBTAINS FROM THE PUBLISHER AND TO TURN OVER TO THE PUBLISHER
THE RECEIPTS WHICH HE COLLECTS FROM THEIR SALES, EITHER DIRECTLY OR
WITH THE ASSISTANCE OF "CHECKMEN" OR "MAIN SPOT" BOYS.  FN10  THE
LATTER, STATIONED AT THE IMPORTANT CORNERS OR "SPOTS" IN THE DISTRICT,
ARE NEWSBOYS WHO, AMONG OTHER THINGS, RECEIVE DELIVERY OF THE PAPERS,
REDISTRIBUTE THEM TO OTHER NEWSBOYS STATIONED AT LESS IMPORTANT
CORNERS, AND COLLECT RECEIPTS FROM THEIR SALES.  FN11  FOR THAT
SERVICE, WHICH OCCUPIES A MINOR PORTION OF THEIR WORKING DAY, THE
CHECKMEN RECEIVE A SMALL SALARY FROM THE PUBLISHER.  FN12  THE BULK OF
THEIR DAY, HOWEVER, THEY SPEND IN HAWKING PAPERS AT THEIR "SPOTS" LIKE
OTHER FULL-TIME NEWSBOYS.  A LARGE PART OF THE APPROPRIATE UNITS
SELECTED BY THE BOARD FOR THE NEWS AND THE HERALD ARE CHECKMEN WHO, IN
THAT CAPACITY, CLEARLY ARE EMPLOYEES OF THOSE PAPERS. 

THE NEWSBOYS' COMPENSATION CONSISTS IN THE DIFFERENCE BETWEEN THE
PRICES AT WHICH THEY SELL THE PAPERS AND THE PRICES THEY PAY FOR THEM. 
THE FORMER ARE FIXED BY THE PUBLISHERS AND THE LATTER ARE FIXED EITHER
BY THE PUBLISHERS OR, IN THE CASE OF THE NEWS, BY THE DISTRICT
MANAGER.  FN13  IN PRACTICE THE NEWSBOYS RECEIVE THEIR PAPERS ON
CREDIT.  THEY PAY FOR THOSE SOLD EITHER SOMETIME DURING OR AFTER THE
CLOSE OF THEIR SELLING DAY, RETURNING FOR CREDIT ALL UNSOLD PAPERS. 
FN14 LOST OR OTHERWISE UNRETURNED PAPERS, HOWEVER, MUST BE PAID FOR AS
THOUGH SOLD.  NOT ONLY IS THE "PROFIT" PER PAPER THUS EFFECTIVELY FIXED
BY THE PUBLISHER, BUT SUBSTANTIAL CONTROL OF THE NEWSBOYS' TOTAL "TAKE
HOME" CAN BE EFFECTED THROUGH THE ABILITY TO DESIGNATE THEIR SALES
AREAS AND THE POWER TO DETERMINE THE NUMBER OF PAPERS ALLOCATED TO
EACH.  WHILE AS A PRACTICAL MATTER THIS POWER IS NOT EXERCISED FULLY,
THE NEWSBOYS'"RIGHT" TO DECIDE HOW MANY PAPERS THEY WILL TAKE IS ALSO
NOT ABSOLUTE.  IN PRACTICE, THE BOARD FOUND, THEY CANNOT DETERMINE THE
SIZE OF THEIR ESTABLISHED ORDER WITHOUT THE COOPERATION OF THE DISTRICT
MANAGER.  AND OFTEN THE NUMBER OF PAPERS THEY MUST TAKE IS DETERMINED
UNILATERALLY BY THE DISTRICT MANAGERS. 

IN ADDITION TO EFFECTIVELY FIXING THE COMPENSATION, RESPONDENTS IN A
VARIETY OF WAYS PRESCRIBE, IF NOT THE MINUTIAE OF DAILY ACTIVITIES, AT
LEAST THE BROAD TERMS AND CONDITIONS OF WORK.  THIS IS ACCOMPLISHED
LARGELY THROUGH THE SUPERVISORY EFFORTS OF THE DISTRICT MANAGERS, WHO
SERVE AS THE NEXUS BETWEEN THE PUBLISHERS AND THE NEWSBOYS.  FN15  THE
DISTRICT MANAGERS ASSIGN "SPOTS" OR CORNERS TO WHICH THE NEWSBOYS ARE
EXPECTED TO CONFINE THEIR SELLING ACTIVITIES N16.  TRANSFERS FROM ONE
"SPOT" TO ANOTHER MAY BE ORDERED BY THE DISTRICT MANAGER FOR REASONS OF
DISCIPLINE OR EFFICIENCY OR OTHER CAUSE.  TRANSPORTATION TO THE SPOTS
FROM THE NEWSPAPER BUILDING IS OFFERED BY EACH OF RESPONDENTS.  HOURS
OF WORK ON THE SPOTS ARE DETERMINED NOT SIMPLY BY THE IMPERSONAL
PRESSURES OF THE MARKET, BUT TO A REAL EXTENT BY EXPLICIT INSTRUCTIONS
FROM THE DISTRICT MANAGERS.  ADHERENCE TO THE PRESCRIBED HOURS IS
OBSERVED CLOSELY BY THE DISTRICT MANAGERS OR OTHER SUPERVISORY AGENTS
OF THE PUBLISHERS.  SANCTIONS, VARYING IN SEVERITY FROM REPRIMAND TO
DISMISSAL, ARE VISITED ON THE TARDY AND THE DELINQUENT.  BY SIMILAR
SUPERVISORY CONTROLS MINIMUM STANDARDS OF DILIGENCE AND GOOD CONDUCT
WHILE AT WORK ARE SOUGHT TO BE ENFORCED.  HOWEVER WIDE MAY BE THE
LATITUDE FOR INDIVIDUAL INITIATIVE BEYOND THOSE STANDARDS, DISTRICT
MANAGERS' INSTRUCTIONS IN WHAT THE PUBLISHERS APPARENTLY REGARD AS
HELPFUL SALES TECHNIQUE ARE EXPECTED TO BE FOLLOWED.  SUCH VARIED ITEMS
AS THE MANNER OF DISPLAYING THE PAPER, OF EMPHASIZING CURRENT FEATURES
AND HEADLINES, AND OF PLACING ADVERTISING PLACARDS, OR THE ADVANTAGES
OF SOLICITING CUSTOMERS AT SPECIFIC STORES OR IN THE TRAFFIC LANES ARE
AMONG THE SUBJECTS OF THIS INSTRUCTION.  MOREOVER, NEWSBOYS ARE
FURNISHED WITH SALES EQUIPMENT, SUCH AS RACKS, BOXES AND CHANGE APRONS,
AND ADVERTISING PLACARDS BY THE PUBLISHERS.  IN THIS PATTERN OF
EMPLOYMENT THE BOARD FOUND THAT THE NEWSBOYS ARE AN INTEGRAL PART OF
THE PUBLISHERS' DISTRIBUTION SYSTEM AND CIRCULATION ORGANIZATION.  AND
THE RECORD DISCLOSES THAT THE NEWSBOYS AND CHECKMEN FEEL THEY ARE
EMPLOYEES OF THE PAPERS; AND RESPONDENTS' SUPERVISORY EMPLOYEES, IF NOT
RESPONDENTS THEMSELVES, REGARD THEM AS SUCH. 

IN ADDITION TO QUESTIONING THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN
THESE FINDINGS, RESPONDENTS POINT TO A NUMBER OF OTHER ATTRIBUTES
CHARACTERIZING THEIR RELATIONSHIP WITH THE NEWSBOYS  FN17  AND URGE
THAT ON THE ENTIRE RECORD THE LATTER CANNOT BE CONSIDERED THEIR
EMPLOYEES.  THEY BASE THIS CONCLUSION ON THE ARGUMENT THAT BY COMMON
LAW STANDARDS THE EXTENT OF THEIR CONTROL AND DIRECTION OF THE
NEWSBOYS' WORKING ACTIVITIES CREATES NO MORE THAN AN "INDEPENDENT
CONTRACTOR" RELATIONSHIP AND THAT COMMON-LAW STANDARDS DETERMINE THE
"EMPLOYEE" RELATIONSHIP UNDER THE ACT.  THEY FURTHER URGE THAT THE
BOARD'S SELECTION OF A COLLECTIVE BARGAINING UNIT IS NEITHER
APPROPRIATE NOR SUPPORTED BY SUBSTANTIAL EVIDENCE.  FN18

                                  I. 

THE PRINCIPAL QUESTION IS WHETHER THE NEWSBOYS ARE "EMPLOYEES." 
BECAUSE CONGRESS DID NOT EXPLICITLY DEFINE THE TERM, RESPONDENTS SAY
ITS MEANING MUST BE DETERMINED BY REFERENCE TO COMMON-LAW STANDARDS. 
IN THEIR VIEW "COMMON-LAW STANDARDS" ARE THOSE THE COURTS HAVE APPLIED
IN DISTINGUISHING BETWEEN "EMPLOYEES" AND "INDEPENDENT CONTRACTORS"
WHEN WORKING OUT VARIOUS PROBLEMS UNRELATED TO THE WAGNER ACT'S
PURPOSES AND PROVISIONS. 

THE ARGUMENT ASSUMES THAT THERE IS SOME SIMPLE, UNIFORM AND EASILY
APPLICABLE TEST WHICH THE COURTS HAVE USED, IN DEALING WITH SUCH
PROBLEMS, TO DETERMINE WHETHER PERSONS DOING WORK FOR OTHERS FALL IN
ONE CLASS OR THE OTHER.  UNFORTUNATELY THIS IS NOT TRUE.  ONLY BY A
LONG AND TORTUOUS HISTORY WAS THE SIMPLE FORMULATION WORKED OUT WHICH
HAS BEEN STATED MOST FREQUENTLY AS "THE TEST" FOR DECIDING WHETHER ONE
WHO HIRES ANOTHER IS RESPONSIBLE IN TORT FOR HIS WRONGDOING.  FN19  BUT
THIS FORMULA HAS BEEN BY NO MEANS EXCLUSIVELY CONTROLLING IN THE
SOLUTION OF OTHER PROBLEMS.  AND ITS SIMPLICITY HAS BEEN ILLUSORY
BECAUSE IT IS MORE LARGELY SIMPLICITY OF FORMULATION THAN OF
APPLICATION.  FEW PROBLEMS IN THE LAW HAVE GIVEN GREATER VARIETY OF
APPLICATION AND CONFLICT IN RESULTS THAN THE CASES ARISING IN THE
BORDERLAND BETWEEN WHAT IS CLEARLY AN EMPLOYER-EMPLOYEE RELATIONSHIP
AND WHAT IS CLEARLY ONE OF INDEPENDENT, ENTREPRENEURIAL DEALING.  FN20
THIS IS TRUE WITHIN THE LIMITED FIELD OF DETERMINING VICARIOUS
LIABILITY IN TORT.  IT BECOMES MORE SO WHEN THE FIELD IS EXPANDED TO
INCLUDE ALL OF THE POSSIBLE APPLICATIONS OF THE DISTINCTION. 

IT IS HARDLY NECESSARY TO STRESS PARTICULAR INSTANCES OF THESE
VARIATIONS OR TO EMPHASIZE THAT THEY HAVE ARISEN PRINCIPALLY, FIRST, IN
THE STRUGGLE OF THE COURTS TO WORK OUT COMMON-LAW LIABILITIES WHERE THE
LEGISLATURE HAS GIVEN NO GUIDES FOR JUDGMENT,  FN21  MORE RECENTLY ALSO
UNDER STATUTES WHICH HAVE POSED THE SAME PROBLEM FOR SOLUTION IN THE
LIGHT OF THE ENACTMENT'S PARTICULAR TERMS AND PURPOSES.  FN22  IT IS
ENOUGH TO POINT OUT THAT, WITH REFERENCE TO AN IDENTICAL PROBLEM,
RESULTS MAY BE CONTRARY OVER A VERY CONSIDERABLE REGION OF DOUBT IN
APPLYING THE DISTINCTION, DEPENDING UPON THE STATE OR JURISDICTION
WHERE THE DETERMINATION IS MADE; FN23 AND THAT WITHIN A SINGLE
JURISDICTION A PERSON WHO, FOR INSTANCE, IS HELD TO BE AN "INDEPENDENT
CONTRACTOR" FOR THE PURPOSE OF IMPOSING VICARIOUS LIABILITY IN TORT MAY
BE AN "EMPLOYEE" FOR THE PURPOSES OF PARTICULAR LEGISLATION, SUCH AS
UNEMPLOYMENT COMPENSATION.  SEE, E.G., GLOBE GRAIN & MILLING CO. V.
INDUSTRIAL COMM'N, 98 UTAH 36, 91 P.2D 512.  IN SHORT, THE ASSUMED
SIMPLICITY AND UNIFORMITY, RESULTING FROM APPLICATION OF "COMMON-LAW
STANDARDS," DOES NOT EXIST. 

MERE REFERENCE TO THESE POSSIBLE VARIATIONS AS CHARACTERIZING THE
APPLICATION OF THE WAGNER ACT IN THE TREATMENT OF PERSONS IDENTICALLY
SITUATED IN THE FACTS SURROUNDING THEIR EMPLOYMENT AND IN THE
INFLUENCES TENDING TO DISRUPT IT, WOULD BE ENOUGH TO REQUIRE PAUSE
BEFORE ACCEPTING A THESIS WHICH WOULD INTRODUCE THEM INTO ITS
ADMINISTRATION.  THIS WOULD BE TRUE, EVEN IF THE STATUTE ITSELF HAD
INDICATED LESS CLEARLY THAN IT DOES THE INTENT THEY SHOULD NOT APPLY. 
TWO POSSIBLE CONSEQUENCES COULD FOLLOW.  ONE WOULD BE TO REFER THE
DECISION OF WHO ARE EMPLOYEES TO LOCAL STATE LAW.  THE ALTERNATIVE
WOULD BE TO MAKE IT TURN ON A SORT OF PERVADING GENERAL ESSENCE
DISTILLED FROM STATE LAW.  CONGRESS OBVIOUSLY DID NOT INTEND THE FORMER
RESULT.  IT WOULD INTRODUCE VARIATIONS INTO THE STATUTE'S OPERATION AS
WIDE AS THE DIFFERENCES THE FORTY-EIGHT STATES AND OTHER LOCAL
JURISDICTIONS MAKE IN APPLYING THE DISTINCTION FOR WHOLLY DIFFERENT
PURPOSES.  PERSONS WHO MIGHT BE "EMPLOYEES" IN ONE STATE WOULD BE
"INDEPENDENT CONTRACTORS" IN ANOTHER.  THEY WOULD BE WITHIN OR WITHOUT
THE STATUTE'S PROTECTION DEPENDING NOT ON WHETHER THEIR SITUATION FALLS
FACTUALLY WITHIN THE AMBIT CONGRESS HAD IN MIND, BUT UPON THE ACCIDENTS
OF THE LOCATION OF THEIR WORK AND THE ATTITUDE OF THE PARTICULAR LOCAL
JURISDICTION IN CASTING DOUBTFUL CASES ONE WAY OR THE OTHER.  PERSONS
WORKING ACROSS STATE LINES MIGHT FALL IN ONE CLASS OR THE OTHER,
POSSIBLY BOTH, DEPENDING ON WHETHER THE BOARD AND THE COURTS WOULD BE
REQUIRED TO GIVE EFFECT TO THE LAW OF ONE STATE OR OF THE ADJOINING
ONE, OR TO THAT OF EACH IN RELATION TO THE PORTION OF THE WORK DONE
WITHIN ITS BORDERS. 

BOTH THE TERMS AND THE PURPOSES OF THE STATUTE, AS WELL AS THE
LEGISLATIVE HISTORY, SHOW THAT CONGRESS HAD IN MIND NO SUCH PATCHWORK
PLAN FOR SECURING FREEDOM OF EMPLOYEES' ORGANIZATION AND OF COLLECTIVE
BARGAINING.  THE WAGNER ACT IS FEDERAL LEGISLATION, ADMINISTERED BY A
NATIONAL AGENCY, INTENDED TO SOLVE A NATIONAL PROBLEM ON A NATIONAL
SCALE.  CF. E.G., SEN. REP. NO. 573, 74TH CONG., 1ST SESS. 2-4.  IT IS
AN ACT, THEREFORE, IN REFERENCE TO WHICH IT IS NOT ONLY PROPER BUT
NECESSARY FOR US TO ASSUME, "IN THE ABSENCE OF A PLAIN INDICATION TO
THE CONTRARY, THAT CONGRESS ...  IS NOT MAKING THE APPLICATION OF THE
FEDERAL ACT DEPENDENT ON STATE LAW."  JEROME V. UNITED STATES, 318 U.S.
101, 104.  NOTHING IN THE STATUTE'S BACKGROUND, HISTORY, TERMS OR
PURPOSES INDICATES ITS SCOPE IS TO BE LIMITED BY SUCH VARYING LOCAL
CONCEPTIONS, EITHER STATUTORY OR JUDICIAL, OR THAT IT IS TO BE
ADMINISTERED IN ACCORDANCE WITH WHATEVER DIFFERENT STANDARDS THE
RESPECTIVE STATES MAY SEE FIT TO ADOPT FOR THE DISPOSITION OF
UNRELATED, LOCAL PROBLEMS.  CONSEQUENTLY, SO FAR AS THE MEANING OF
"EMPLOYEE" IN THIS STATUTE IS CONCERNED, "THE FEDERAL LAW MUST PREVAIL
NO MATTER WHAT NAME IS GIVEN TO THE INTEREST OR RIGHT BY STATE LAW." 
MORGAN V. COMMISSIONER, 309 U.S. 78, 81; CF. LABOR BOARD V. BLOUNT, 131
F.2D 585(C.C.A.). 

                    II. 

WHETHER, GIVEN THE INTENDED NATIONAL UNIFORMITY, THE TERM "EMPLOYEE"
INCLUDES SUCH WORKERS AS THESE NEWSBOYS MUST BE ANSWERED PRIMARILY FROM
THE HISTORY, TERMS AND PURPOSES OF THE LEGISLATION.  THE WORD "IS NOT
TREATED BY CONGRESS AS A WORD OF ART HAVING A DEFINITE MEANING.  ...  "
RATHER "IT TAKES COLOR FROM ITS SURROUNDINGS  ...  (IN) THE STATUTE
WHERE IT APPEARS," UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S.
534, 545, AND DERIVES MEANING FROM THE CONTEXT OF THAT STATUTE, WHICH
"MUST BE READ IN THE LIGHT OF THE MISCHIEF TO BE CORRECTED AND THE END
TO BE ATTAINED."  SOUTH CHICAGO COAL & DOCK CO. V. BASSETT, 309 U.S.
251, 259; CF. NEW NEGRO ALLIANCE V. SANITARY GROCERY CO., 303 U.S. 552;
DRIVERS' UNION V. LAKE VALLEY CO., 311 U.S. 91. 

CONGRESS, ON THE ONE HAND, WAS NOT THINKING SOLELY OF THE IMMEDIATE
TECHNICAL RELATION OF EMPLOYER AND EMPLOYEE.  IT HAD IN MIND AT LEAST
SOME OTHER PERSONS THAN THOSE STANDING IN THE PROXIMATE LEGAL RELATION
OF EMPLOYEE TO THE PARTICULAR EMPLOYER INVOLVED IN THE LABOR DISPUTE. 
FN24  IT CANNOT BE TAKEN, HOWEVER, THAT THE PURPOSE WAS TO INCLUDE ALL
OTHER PERSONS WHO MAY PERFORM SERVICE FOR ANOTHER OR WAS TO IGNORE
ENTIRELY LEGAL CLASSIFICATIONS MADE FOR OTHER PURPOSES.  CONGRESS HAD
IN MIND A WIDER FIELD THAN THE NARROW TECHNICAL LEGAL RELATION OF
"MASTER AND SERVANT," AS THE COMMON LAW HAD WORKED THIS OUT IN ALL ITS
VARIATIONS, AND AT THE SAME TIME A NARROWER ONE THAN THE ENTIRE AREA OF
RENDERING SERVICE TO OTHERS.  THE QUESTION COMES DOWN THEREFORE TO HOW
MUCH WAS INCLUDED OF THE INTERMEDIATE REGION BETWEEN WHAT IS CLEARLY
AND UNEQUIVOCALLY "EMPLOYMENT," BY ANY APPROPRIATE TEST, AND WHAT IS AS
CLEARLY ENTREPRENEURIAL ENTERPRISE AND NOT EMPLOYMENT. 

IT WILL NOT DO, FOR DECIDING THIS QUESTION AS ONE OF UNIFORM NATIONAL
APPLICATION, TO IMPORT WHOLESALE THE TRADITIONAL COMMON-LAW CONCEPTIONS
OR SOME DISTILLED ESSENCE OF THEIR LOCAL VARIATIONS AS EXCLUSIVELY
CONTROLLING LIMITATIONS UPON THE SCOPE OF THE STATUTE'S EFFECTIVENESS. 
TO DO THIS WOULD BE MERELY TO SELECT SOME OF THE LOCAL, HAIRLINE
VARIATIONS FOR NATION-WIDE APPLICATION AND THUS TO REJECT OTHERS FOR
COVERAGE UNDER THE ACT.  THAT RESULT HARDLY WOULD BE CONSISTENT WITH
THE STATUTE'S BROAD TERMS AND PURPOSES. 

CONGRESS WAS NOT SEEKING TO SOLVE THE NATIONALLY HARASSING PROBLEMS
WITH WHICH THE STATUTE DEALS BY SOLUTIONS ONLY PARTIALLY EFFECTIVE.  IT
RATHER SOUGHT TO FIND A BROAD SOLUTION, ONE THAT WOULD BRING INDUSTRIAL
PEACE BY SUBSTITUTING, SO FAR AS ITS POWER COULD REACH, THE RIGHTS OF
WORKERS TO SELF-ORGANIZATION AND COLLECTIVE BARGAINING FOR THE
INDUSTRIAL STRIFE WHICH PREVAILS WHERE THESE RIGHTS ARE NOT EFFECTIVELY
ESTABLISHED.  YET ONLY PARTIAL SOLUTIONS WOULD BE PROVIDED IF LARGE
SEGMENTS OF WORKERS ABOUT WHOSE TECHNICAL LEGAL POSITION SUCH LOCAL
DIFFERENCES EXIST SHOULD BE WHOLLY EXCLUDED FROM COVERAGE BY REASON OF
SUCH DIFFERENCES.  YET THAT RESULT COULD NOT BE AVOIDED, IF CHOICE MUST
BE MADE AMONG THEM AND CONTROLLED BY THEM IN DECIDING WHO ARE
"EMPLOYEES" WITHIN THE ACT'S MEANING.  ENMESHED IN SUCH DISTINCTIONS,
THE ADMINISTRATION OF THE STATUTE SOON MIGHT BECOME ENCUMBERED BY THE
SAME SORT OF TECHNICAL LEGAL REFINEMENT AS HAS CHARACTERIZED THE LONG
EVOLUTION OF THE EMPLOYEE-INDEPENDENT CONTRACTOR DICHOTOMY IN THE
COURTS FOR OTHER PURPOSES.  THE CONSEQUENCES WOULD BE ULTIMATELY TO
DEFEAT, IN PART AT LEAST, THE ACHIEVEMENT OF THE STATUTE'S OBJECTIVES. 
CONGRESS NO MORE INTENDED TO IMPORT THIS MASS OF TECHNICALITY AS A
CONTROLLING "STANDARD" FOR UNIFORM NATIONAL APPLICATION THAN TO REFER
DECISION OF THE QUESTION OUTRIGHT TO THE LOCAL LAW. 

THE ACT, AS ITS FIRST SECTION STATES, WAS DESIGNED TO AVERT THE
"SUBSTANTIAL OBSTRUCTIONS TO THE FREE FLOW OF COMMERCE" WHICH RESULT
FROM "STRIKES AND OTHER FORMS OF INDUSTRIAL STRIFE OR UNREST" BY
ELIMINATING THE CAUSES OF THAT UNREST.  IT IS PREMISED ON EXPLICIT
FINDINGS THAT STRIKES AND INDUSTRIAL STRIFE THEMSELVES RESULT IN LARGE
MEASURE FROM THE REFUSAL OF EMPLOYERS TO BARGAIN COLLECTIVELY AND THE
INABILITY OF INDIVIDUAL WORKERS TO BARGAIN SUCCESSFULLY FOR
IMPROVEMENTS IN THEIR "WAGES, HOURS OR OTHER WORKING CONDITIONS" WITH
EMPLOYERS WHO ARE "ORGANIZED IN THE CORPORATE OR OTHER FORMS OF
OWNERSHIP ASSOCIATION."  HENCE THE AVOWED AND INTERRELATED PURPOSES OF
THE ACT ARE TO ENCOURAGE COLLECTIVE BARGAINING AND TO REMEDY THE
INDIVIDUAL WORKER'S INEQUALITY OF BARGAINING POWER BY "PROTECTING THE
EXERCISE  ...  OF FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND
DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING, FOR THE PURPOSE
OF NEGOTIATING THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT OR OTHER
MUTUAL AID OR PROTECTION."  49 STAT. 449, 450. 

THE MISCHIEF AT WHICH THE ACT IS AIMED AND THE REMEDIES IT OFFERS ARE
NOT CONFINED EXCLUSIVELY TO "EMPLOYEES" WITHIN THE TRADITIONAL LEGAL
DISTINCTIONS SEPARATING THEM FROM "INDEPENDENT CONTRACTORS."  MYRIAD
FORMS OF SERVICE RELATIONSHIP, WITH INFINITE AND SUBTLE VARIATIONS IN
THE TERMS OF EMPLOYMENT, BLANKET THE NATION'S ECONOMY.  SOME ARE WITHIN
THIS ACT, OTHERS BEYOND ITS COVERAGE.  LARGE NUMBERS WILL FALL CLEARLY
ON ONE SIDE OR ON THE OTHER, BY WHATEVER TEST MAY BE APPLIED.  BUT
INTERMEDIATE THERE WILL BE MANY, THE INCIDENTS OF WHOSE EMPLOYMENT
PARTAKE IN PART OF THE ONE GROUP, IN PART OF THE OTHER, IN VARYING
PROPORTIONS OF WEIGHT.  AND CONSEQUENTLY THE LEGAL PENDULUM, FOR
PURPOSES OF APPLYING THE STATUTE, MAY SWING ONE WAY OR THE OTHER,
DEPENDING UPON THE WEIGHT OF THIS BALANCE AND ITS RELATION TO THE
SPECIAL PURPOSE AT HAND. 

UNLESS THE COMMON-LAW TESTS ARE TO BE IMPORTED AND MADE EXCLUSIVELY
CONTROLLING, WITHOUT REGARD TO THE STATUTE'S PURPOSES, IT CANNOT BE
IRRELEVANT THAT THE PARTICULAR WORKERS IN THESE CASES ARE SUBJECT, AS A
MATTER OF ECONOMIC FACT, TO THE EVILS THE STATUTE WAS DESIGNED TO
ERADICATE AND THAT THE REMEDIES IT AFFORDS ARE APPROPRIATE FOR
PREVENTING THEM OR CURING THEIR HARMFUL EFFECTS IN THE SPECIAL
SITUATION.  INTERRUPTION OF COMMERCE THROUGH STRIKES AND UNREST MAY
STEM AS WELL FROM LABOR DISPUTES BETWEEN SOME WHO, FOR OTHER PURPOSES,
ARE TECHNICALLY "INDEPENDENT CONTRACTORS" AND THEIR EMPLOYERS AS FROM
DISPUTES BETWEEN PERSONS WHO, FOR THOSE PURPOSES, ARE "EMPLOYEES" AND
THEIR EMPLOYERS.  CF. DRIVERS' UNION V. LAKE VALLEY CO., 311 U.S. 91. 
INEQUALITY OF BARGAINING POWER IN CONTROVERSIES OVER WAGES, HOURS AND
WORKING CONDITIONS MAY AS WELL CHARACTERIZE THE STATUS OF THE ONE GROUP
AS OF THE OTHER.  THE FORMER, WHEN ACTING ALONE, MAY BE AS "HELPLESS IN
DEALING WITH AN EMPLOYER," AS "DEPENDENT  ...  ON HIS DAILY WAGE" AND
AS "UNABLE TO LEAVE THE EMPLOY AND TO RESIST ARBITRARY AND UNFAIR
TREATMENT" AS THE LATTER.  FOR EACH, "UNION  ...  (MAY BE) ESSENTIAL TO
GIVE  ...  OPPORTUNITY TO DEAL ON EQUALITY WITH THEIR EMPLOYER."  N25
AND FOR EACH, COLLECTIVE BARGAINING MAY BE APPROPRIATE AND EFFECTIVE
FOR THE "FRIENDLY ADJUSTMENT OF INDUSTRIAL DISPUTES ARISING OUT OF
DIFFERENCES AS TO WAGES, HOURS, OR OTHER WORKING CONDITIONS."  FN26  49
STAT. 449.  IN SHORT, WHEN THE PARTICULAR SITUATION OF EMPLOYMENT
COMBINES THESE CHARACTERISTICS, SO THAT THE ECONOMIC FACTS OF THE
RELATION MAKE IT MORE NEARLY ONE OF EMPLOYMENT THAN OF INDEPENDENT
BUSINESS ENTERPRISE WITH RESPECT TO THE ENDS SOUGHT TO BE ACCOMPLISHED
BY THE LEGISLATION, THOSE CHARACTERISTICS MAY OUTWEIGH TECHNICAL LEGAL
CLASSIFICATION FOR PURPOSES UNRELATED TO THE STATUTE'S OBJECTIVES AND
BRING THE RELATION WITHIN ITS PROTECTIONS. 

TO ELIMINATE THE CAUSES OF LABOR DISPUTES AND INDUSTRIAL STRIFE,
CONGRESS THOUGHT IT NECESSARY TO CREATE A BALANCE OF FORCES IN CERTAIN
TYPES OF ECONOMIC RELATIONSHIPS.  THESE DO NOT EMBRACE SIMPLY
EMPLOYMENT ASSOCIATIONS IN WHICH CONTROVERSIES COULD BE LIMITED TO
DISPUTES OVER PROPER "PHYSICAL CONDUCT IN THE PERFORMANCE OF THE
SERVICE."  FN27  ON THE CONTRARY, CONGRESS RECOGNIZED THOSE ECONOMIC
RELATIONSHIPS CANNOT BE FITTED NEATLY INTO THE CONTAINERS DESIGNATED
"EMPLOYEE" AND "EMPLOYER" WHICH AN EARLIER LAW HAD SHAPED FOR DIFFERENT
PURPOSES.  ITS REPORTS ON THE BILL DISCLOSE CLEARLY THE UNDERSTANDING
THAT "EMPLOYERS AND EMPLOYEES NOT IN PROXIMATE RELATIONSHIP MAY BE
DRAWN INTO COMMON CONTROVERSIES BY ECONOMIC FORCES,"  FN28  AND THAT
THE VERY DISPUTES SOUGHT TO BE AVOIDED MIGHT INVOLVE "EMPLOYEES (WHO)
ARE AT TIMES BROUGHT INTO AN ECONOMIC RELATIONSHIP WITH EMPLOYERS WHO
ARE NOT THEIR EMPLOYERS."  N29  IN THIS LIGHT, THE BROAD LANGUAGE OF
THE ACT'S DEFINITIONS, WHICH IN TERMS REJECT CONVENTIONAL LIMITATIONS
ON SUCH CONCEPTIONS AS "EMPLOYEE," "EMPLOYER," AND "LABOR DISPUTE,"
FN30  LEAVES NO DOUBT THAT ITS APPLICABILITY IS TO BE DETERMINED
BROADLY, IN DOUBTFUL SITUATIONS, BY UNDERLYING ECONOMIC FACTS RATHER
THAN TECHNICALLY AND EXCLUSIVELY BY PREVIOUSLY ESTABLISHED LEGAL
CLASSIFICATIONS.  CF. LABOR BOARD V. BLOUNT, SUPRA. 

HENCE "TECHNICAL CONCEPTS PERTINENT TO AN EMPLOYER'S LEGAL
RESPONSIBILITY TO THIRD PERSONS FOR ACTS OF HIS SERVANTS" HAVE BEEN
REJECTED IN VARIOUS APPLICATIONS OF THIS ACT BOTH HERE (INTERNATIONAL
ASSOCIATION OF MACHINISTS V. LABOR BOARD, 311 U.S. 72, 80-81; H.J.
HEINZ CO. V. LABOR BOARD, 311 U.S. 514, 520-521)  FN31  AND IN OTHER
FEDERAL COURTS (LABOR BOARD V. CONDENSER CORP., 128 F.2D 67(C.C.A.);
NORTH WHITTIER HEIGHTS CITRUS ASSN. V. LABOR BOARD, 109 F.2D 76,
82(C.C.A.); LABOR BOARD V. BLOUNT, SUPRA).  THERE IS NO GOOD REASON FOR
INVOKING THEM TO RESTRICT THE SCOPE OF THE TERM "EMPLOYEE" SOUGHT TO BE
DONE IN THIS CASE.  THAT TERM, LIKE OTHER PROVISIONS, MUST BE
UNDERSTOOD WITH REFERENCE TO THE PURPOSE OF THE ACT AND THE FACTS
INVOLVED IN THE ECONOMIC RELATIONSHIP.  FN32  "WHERE ALL THE CONDITIONS
OF THE RELATION REQUIRE PROTECTION, PROTECTION OUGHT TO BE GIVEN." 
FN33 

IT IS NOT NECESSARY IN THIS CASE TO MAKE A COMPLETELY DEFINITIVE
LIMITATION AROUND THE TERM "EMPLOYEE."  THAT TASK HAS BEEN ASSIGNED
PRIMARILY TO THE AGENCY CREATED BY CONGRESS TO ADMINISTER THE ACT. 
DETERMINATION OF "WHERE ALL THE CONDITIONS OF THE RELATION REQUIRE
PROTECTION" INVOLVES INQUIRIES FOR THE BOARD CHARGED WITH THIS DUTY. 
EVERYDAY EXPERIENCE IN THE ADMINISTRATION OF THE STATUTE GIVES IT
FAMILIARITY WITH THE CIRCUMSTANCES AND BACKGROUNDS OF EMPLOYMENT
RELATIONSHIPS IN VARIOUS INDUSTRIES, WITH THE ABILITIES AND NEEDS OF
THE WORKERS FOR SELF-ORGANIZATION AND COLLECTIVE ACTION, AND WITH THE
ADAPTABILITY OF COLLECTIVE BARGAINING FOR THE PEACEFUL SETTLEMENT OF
THEIR DISPUTES WITH THEIR EMPLOYERS.  THE EXPERIENCE THUS ACQUIRED MUST
BE BROUGHT FREQUENTLY TO BEAR ON THE QUESTION WHO IS AN EMPLOYEE UNDER
THE ACT.  RESOLVING THAT QUESTION, LIKE DETERMINING WHETHER UNFAIR
LABOR PRACTICES HAVE BEEN COMMITTED, "BELONGS TO THE USUAL
ADMINISTRATIVE ROUTINE" OF THE BOARD.  FN34  GRAY V. POWELL, 314 U.S.
402, 411.  CF. LABOR BOARD V. STANDARD OIL CO., 138 F.2D 885, 887-888. 

IN MAKING THAT BODY'S DETERMINATIONS AS TO THE FACTS IN THESE MATTERS
CONCLUSIVE, IF SUPPORTED BY EVIDENCE, CONGRESS ENTRUSTED TO IT
PRIMARILY THE DECISION WHETHER THE EVIDENCE ESTABLISHES THE MATERIAL
FACTS.  HENCE IN REVIEWING THE BOARD'S ULTIMATE CONCLUSIONS, IT IS NOT
THE COURT'S FUNCTION TO SUBSTITUTE ITS OWN INFERENCES OF FACT FOR THE
BOARD'S, WHEN THE LATTER HAVE SUPPORT IN THE RECORD.  LABOR BOARD V.
NEVADA COPPER CORP., 316 U.S. 105; CF. WALKER V. ALTMEYER, 137 F.2D
531(C.C.A.).  UNDOUBTEDLY QUESTIONS OF STATUTORY INTERPRETATION,
ESPECIALLY WHEN ARISING IN THE FIRST INSTANCE IN JUDICIAL PROCEEDINGS,
ARE FOR THE COURTS TO RESOLVE, GIVING APPROPRIATE WEIGHT TO THE
JUDGMENT OF THOSE WHOSE SPECIAL DUTY IS TO ADMINISTER THE QUESTIONED
STATUTE.  NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, 288 U.S.
294; UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534.  BUT
WHERE THE QUESTION IS ONE OF SPECIFIC APPLICATION OF A BROAD STATUTORY
TERM IN A PROCEEDING IN WHICH THE AGENCY ADMINISTERING THE STATUTE MUST
DETERMINE IT INITIALLY, THE REVIEWING COURT'S FUNCTION IS LIMITED. 
LIKE THE COMMISSIONER'S DETERMINATION UNDER THE LONGSHOREMEN'S & HARBOR
WORKERS' ACT,  FN35  THAT A MAN IS NOT A "MEMBER OF A CREW" (SOUTH
CHICAGO COAL & DOCK CO. V. BASSETT, 309 U.S. 251) OR THAT HE WAS
INJURED "IN THE COURSE OF EMPLOYMENT" (PARKER V. MOTOR BOAT SALES, 314
U.S. 244) AND THE FEDERAL COMMUNICATIONS COMMISSION'S DETERMINATION
FN36  THAT ONE COMPANY IS UNDER THE "CONTROL" OF ANOTHER (ROCHESTER
TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125), THE BOARD'S
DETERMINATION THAT SPECIFIED PERSONS ARE "EMPLOYEES" UNDER THIS ACT IS
TO BE ACCEPTED IF IT HAS "WARRANT IN THE RECORD" AND A REASONABLE BASIS
IN LAW. 

IN THIS CASE THE BOARD FOUND THAT THE DESIGNATED NEWSBOYS WORK
CONTINUOUSLY AND REGULARLY, RELY UPON THEIR EARNINGS FOR THE SUPPORT OF
THEMSELVES AND THEIR FAMILIES, AND HAVE THEIR TOTAL WAGES INFLUENCED IN
LARGE MEASURE BY THE PUBLISHERS, WHO DICTATE THEIR BUYING AND SELLING
PRICES, FIX THEIR MARKETS AND CONTROL THEIR SUPPLY OF PAPERS.  THEIR
HOURS OF WORK AND THEIR EFFORTS ON THE JOB ARE SUPERVISED AND TO SOME
EXTENT PRESCRIBED BY THE PUBLISHERS OR THEIR AGENTS.  MUCH OF THEIR
SALES EQUIPMENT AND ADVERTISING MATERIALS IS FURNISHED BY THE
PUBLISHERS WITH THE INTENTION THAT IT BE USED FOR THE PUBLISHER'S
BENEFIT.  STATING THAT "THE PRIMARY CONSIDERATION IN THE DETERMINATION
OF THE APPLICABILITY OF THE STATUTORY DEFINITION IS WHETHER
EFFECTUATION OF THE DECLARED POLICY AND PURPOSES OF THE ACT COMPREHEND
SECURING TO THE INDIVIDUAL THE RIGHTS GUARANTEED AND PROTECTION
AFFORDED BY THE ACT," THE BOARD CONCLUDED THAT THE NEWSBOYS ARE
EMPLOYEES.  THE RECORD SUSTAINS THE BOARD'S FINDINGS AND THERE IS AMPLE
BASIS IN THE LAW FOR ITS CONCLUSION. 

                    III. 

THE BOARD'S SELECTION OF THE COLLECTIVE BARGAINING UNITS ALSO MUST BE
UPHELD.  THE UNITS CHOSEN FOR THE NEWS AND THE HERALD CONSIST OF ALL
FULL-TIME  FN37  NEWSBOYS AND CHECKMEN ENGAGED TO SELL THE PAPERS IN
LOS ANGELES.  BOOTJACKERS, TEMPORARY, CASUAL AND PART-TIME  FN38
NEWSBOYS ARE EXCLUDED.  THE UNITS DESIGNATED FOR THE TIMES AND THE
EXAMINER CONSIST OF NEWSBOYS SELLING AT ESTABLISHED SPOTS  FN39  IN LOS
ANGELES  FN40  FOUR OR MORE HOURS PER DAY FIVE OR MORE DAYS PER WEEK,
EXCEPT TEMPORARY NEWSBOYS.  FN41 

THE BOARD PREDICATED ITS DESIGNATIONS IN PART UPON THE FINDING THAT
THE UNITS INCLUDED, IN GENERAL, MEN WHO WERE RESPONSIBLE WORKERS,
CONTINUOUSLY AND REGULARLY EMPLOYED AS VENDORS AND DEPENDENT UPON THEIR
SALES FOR THEIR LIVELIHOOD, WHILE SCHOOLBOYS AND TRANSIENT OR CASUAL
WORKERS WERE EXCLUDED.  THE DISCRETION WHICH CONGRESS VESTED IN THE
BOARD TO DETERMINE AN APPROPRIATE UNIT IS HARDLY OVERSTEPPED BY THE
CHOICE OF A UNIT BASED ON A DISTINCTION SO CLEARLY CONSISTENT WITH THE
NEED FOR RESPONSIBLE BARGAINING.  THAT THE BOARD'S SELECTION EMPHASIZES
DIFFERENCE IN TENURE RATHER THAN FUNCTION IS, ON THIS RECORD CERTAINLY,
NO ABUSE OF DISCRETION. 

NOR IS THERE SUBSTANCE IN THE OBJECTION THAT THE BOARD'S DESIGNATIONS
ON THE ONE HAND FAIL TO EMBRACE ALL WORKERS WHO IN FACT COME WITHIN THE
RESPONSIBLE OR STABLE FULLTIME CATEGORY GENERICALLY STATED, AND ON THE
OTHER HAND FAIL TO EXCLUDE ALL WHO IN FACT COME WITHIN THE SCHOOLBOY OR
MORE VOLATILE PART-TIME CATEGORY.  THE RECORD DOES NOT SUGGEST THAT THE
UNITS DESIGNATED, AT LEAST SO FAR AS LOS ANGELES NEWSBOYS ARE
CONCERNED, DO NOT SUBSTANTIALLY EFFECTUATE THE BOARD'S THEORY OR
EMBRACE A LARGE PORTION OF THOSE WHO WOULD MAKE UP A STABLE BARGAINING
GROUP BASED ON RESPONSIBLE TENURE AND FULL-TIME WORK.  IN THESE MATTERS
THE BOARD CANNOT BE HELD TO MATHEMATICAL PRECISION.  IF IT CHOOSES TO
COUCH ITS ORDERS IN TERMS WHICH FOR GOOD REASONS IT REGARDS EFFECTIVE
TO ACCOMPLISH ITS STATED ENDS, PERIPHERAL OR HYPOTHETICAL DEVIATIONS
WILL NOT DEFEAT AN OTHERWISE APPROPRIATE ORDER. 

ANOTHER OBJECTION URGED BY THE TIMES, THE HERALD AND THE EXAMINER IS
TO THE BOARD'S EXCLUSION OF SUBURBAN NEWSBOYS  FN42  FROM THE UNITS ON
THE GROUND THEY WERE NOT ORGANIZED BY THE UNION.  THE BOARD FOUND THAT
ALTHOUGH ALL VENDORS IN METROPOLITAN LOS ANGELES WERE ELIGIBLE FOR
MEMBERSHIP, THE UNION HAD NOT BEEN EXTENDED TO THE SUBURBAN GROUPS
GENERALLY AND THAT NO OTHER LABOR ORGANIZATION WAS SEEKING TO REPRESENT
RESPONDENTS' EMPLOYEES.  THERE IS NO SUGGESTION EITHER THAT THE UNION
DELIBERATELY EXCLUDED SUBURBAN NEWSBOYS WHO SOUGHT ADMISSION OR THAT
SUBURBAN NEWSBOYS HAVE DISPLAYED ANY INTEREST IN COLLECTIVE BARGAINING
OR SELF-ORGANIZATION. 

WIDE VARIATIONS IN THE FORMS OF EMPLOYEE SELF-ORGANIZATION AND THE
COMPLEXITIES OF MODERN INDUSTRIAL ORGANIZATION MAKE DIFFICULT THE USE
OF INFLEXIBLE RULES AS THE TEST OF AN APPROPRIATE UNIT.  CONGRESS WAS
INFORMED OF THE NEED FOR FLEXIBILITY IN SHAPING THE UNIT TO THE
PARTICULAR CASE  FN43  AND ACCORDINGLY GAVE THE BOARD WIDE DISCRETION
IN THE MATTER.  ITS CHOICE OF A UNIT IS LIMITED SPECIFICALLY ONLY BY
THE REQUIREMENT THAT IT BE AN "EMPLOYER UNIT, CRAFT UNIT, PLANT UNIT,
OR SUBDIVISION THEREOF" AND THAT THE SELECTION BE MADE SO AS "TO INSURE
TO EMPLOYEES THE FULL BENEFIT OF THEIR RIGHT TO SELF-ORGANIZATION AND
TO COLLECTIVE BARGAINING, AND OTHERWISE TO EFFECTUATE THE POLICIES OF
THE ACT."  PITTSBURGH PLATE GLASS CO. V. LABOR BOARD, 313 U.S. 146. 
THE FLEXIBILITY WHICH CONGRESS THUS PERMITTED HAS CHARACTERIZED THE
BOARD'S ADMINISTRATION OF THE SECTION AND HAS LED IT TO RESORT TO A
WIDE VARIETY OF FACTORS IN CASE-TO-CASE DETERMINATION OF THE
APPROPRIATE UNIT.  FN44  AMONG THE CONSIDERATIONS TO WHICH IT HAS GIVEN
WEIGHT IS THE EXTENT OF ORGANIZATION OF THE UNION REQUESTING
CERTIFICATION OR COLLECTIVE BARGAINING.  THIS IS DONE ON THE EXPRESSED
THEORY THAT IT IS DESIRABLE IN THE DETERMINATION OF AN APPROPRIATE UNIT
TO RENDER COLLECTIVE BARGAINING OF THE COMPANY'S EMPLOYEES AN IMMEDIATE
POSSIBILITY.  FN45  NO PLAUSIBLE REASON IS SUGGESTED FOR WITHHOLDING
THE BENEFITS OF THE ACT FROM THOSE HERE SEEKING IT UNTIL A GROUP OF
GEOGRAPHICALLY SEPARATED EMPLOYEES BECOMES INTERESTED IN COLLECTIVE
BARGAINING.  IN THE CIRCUMSTANCES DISCLOSED BY THIS RECORD WE CANNOT
SAY THE BOARD'S CONCLUSIONS ARE LACKING IN A "RATIONAL BASIS." 

THE JUDGMENTS ARE REVERSED AND THE CAUSES ARE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  SECTION 2(3) OF THE ACT PROVIDES THAT "THE TERM 'EMPLOYEE' SHALL
INCLUDE ANY EMPLOYEE, AND SHALL NOT BE LIMITED TO THE EMPLOYEES OF A
PARTICULAR EMPLOYER, UNLESS THE ACT EXPLICITLY STATES OTHERWISE, AND
SHALL INCLUDE ANY INDIVIDUAL WHOSE WORK HAS CEASED AS A CONSEQUENCE OF,
OR IN CONNECTION WITH, ANY CURRENT LABOR DISPUTE OR BECAUSE OF ANY
UNFAIR LABOR PRACTICE, AND WHO HAS NOT OBTAINED ANY OTHER REGULAR AND
SUBSTANTIALLY EQUIVALENT EMPLOYMENT, BUT SHALL NOT INCLUDE ANY
INDIVIDUAL EMPLOYED AS AN AGRICULTURAL LABORER, OR IN THE DOMESTIC
SERVICE OF ANY FAMILY OR PERSON AT HIS HOME, OR ANY INDIVIDUAL EMPLOYED
BY HIS PARENT OR SPOUSE." 

FN2  320 U.S. 728. 

FN3  PURSUANT TO SEC. 9(B) AND (C) OF THE ACT; 49 STAT. 453, 29
U.S.C. SEC. 159(B) AND (C). 

FN4  ALTHOUGH IT TREATED THE FOUR REPRESENTATION PETITIONS IN ONE
CONSOLIDATED PROCEEDING AND DISPOSED OF THEM IN ONE OPINION, THE BOARD
DID NOT CONSIDER EVIDENCE WITH RESPECT TO ONE PUBLISHER AS APPLICABLE
TO ANY OF THE OTHERS. 

FN5  SUBSEQUENTLY THOSE ORDERS WERE AMENDED IN VARIOUS DETAILS.  29
N.L.R.B. 94, 95; 30 N.L.R.B. 696, 697; 31 N.L.R.B. 697. 

FN6  THE RECORD IN THE REPRESENTATION PROCEEDING WAS IN EFFECT
INCORPORATED IN THE COMPLAINT PROCEEDING. 

FN7  THE TIMES' DAILY CIRCULATION IS ABOUT 220,000 AND ITS SUNDAY
CIRCULATION IS ABOUT 368,000.  THE EXAMINER'S DAILY CIRCULATION IS
ABOUT 214,000 AND ITS SUNDAY CIRCULATION IS ABOUT 566,000. 

FN8  THE HERALD HAS A CIRCULATION OF ABOUT 243,000.  BOTH IT AND THE
EXAMINER ARE OWNED BY HEARST PUBLICATIONS, INC. 

FN9  THE NEWS HAS A CIRCULATION OF ABOUT 195,000.  ITS FIRST THREE
AND SEVENTH EDITIONS ARE CONSIGNED FOR THE MOST PART TO ROUTE DELIVERY
OR SUBURBAN DEALERS.  ITS FOURTH EDITION, WHICH GOES TO PRESS AT 2:45
A.M., IS SOLD IN THE CITY DURING THE MORNINGS.  THE REMAINING EDITIONS,
WHICH GO TO PRESS AT REGULAR INTERVALS BETWEEN 9:50 A.M. AND 5:00 P.M.,
ARE SOLD IN THE CITY DURING THE AFTERNOONS. 

FN10  THE EXAMINER, THE HERALD, AND THE NEWS ALL EMPLOY "MAIN SPOT"
BOYS OR CHECKMEN; THE TIMES DOES NOT. 

FN11  THE TIMES DISTRICT MANAGERS DELIVER THE PAPERS DIRECTLY TO THE
NEWSBOYS AND COLLECT DIRECTLY FROM THEM.  ON THE OTHER PAPERS DISTRICT
MANAGERS MAY DELIVER BUNDLES OF PAPERS TO THE CHECKMEN OR DIRECTLY TO
THE NEWSBOYS THEMSELVES.  THE TIMES CUSTOMARILY TRANSPORTS ITS NEWSBOYS
TO THEIR "SPOTS" FROM THE TIMES BUILDING, WHERE THEY FIRST REPORT AND
PICK UP THEIR PAPERS.  THE OTHER RESPONDENTS OFFER SIMILAR
TRANSPORTATION TO THOSE OF THEIR NEWSBOYS WHO DESIRE IT. 

FN12  IN THE CASE OF THE EXAMINER THESE "MAIN SPOT" BOYS, ALTHOUGH
PERFORMING SERVICES SIMILAR TO THOSE OF CHECKMEN, ARE LESS CLOSELY KNIT
TO THE PUBLISHER AND SOMETIMES RECEIVE NO COMPENSATION FOR THEIR
SERVICES. 

FN13  SEE INFRA, NOTE 15. 

FN14  NEWSBOYS SELLING THE HERALD IN ONE RESIDENTIAL AREA DO NOT
RECEIVE CREDIT FOR ALL UNSOLD PAPERS. 

FN15  ADMITTEDLY THE TIMES, EXAMINER, AND HERALD DISTRICT MANAGERS
ARE EMPLOYEES OF THEIR RESPECTIVE PAPERS.  WHILE THE NEWS URGED
EARNESTLY THAT ITS MANAGERS ARE NOT ITS EMPLOYEES, THE BOARD FOUND
OTHERWISE.  THEY DO NOT OPERATE ON A FORMAL SALARY BASIS BUT THEY
RECEIVE GUARANTEED MINIMUM PAYMENTS WHICH THE BOARD FOUND ARE "NO MORE
THAN A FIXED SALARY BEARING ANOTHER LABEL."  AND WHILE THEY, RATHER
THAN THE PUBLISHER, FIX THE PRICE OF THE PAPER TO THE NEWSBOY, THE
BOARD FOUND, ON SUBSTANTIAL EVIDENCE, THAT THEY FUNCTION FOR THE NEWS
IN SPECIFIED DISTRICTS, DISTRIBUTE RACKS, APRONS, ADVERTISING PLACARDS
FROM THE NEWS TO THE NEWSBOYS, GIVE INSTRUCTIONS AS TO THEIR USE,
SUPERVISE THE REDISTRIBUTING ACTIVITIES OF THE CHECKMEN (THEMSELVES
CLEARLY EMPLOYEES OF THE NEWS), AND HAND OUT NEWS CHECKS TO THE
CHECKMEN FOR THEIR SERVICES.  ON THIS AND OTHER EVIDENCE SUGGESTING
THAT HOWEVER DIFFERENT MAY BE THEIR FORMAL ARRANGEMENTS, NEWS DISTRICT
MANAGERS BEAR SUBSTANTIALLY THE SAME RELATION TO THE PUBLISHER ON ONE
HAND AND THE NEWSBOYS ON THE OTHER AS DO THE OTHER DISTRICT MANAGERS,
THE BOARD CONCLUDED THAT THEY WERE EMPLOYEES OF THE PAPER. 

FN16  ALTHOUGH FROM TIME TO TIME THESE "SPOTS" ARE BOUGHT AND SOLD
AMONG THE VENDORS THEMSELVES, WITHOUT OBJECTION BY DISTRICT MANAGERS
AND PUBLISHERS, THIS IN NO WAY NEGATES THE NEED FOR THE DISTRICT
MANAGERS' IMPLICIT APPROVAL OF A SPOTHOLDER OR THEIR AUTHORITY TO
REMOVE VENDORS FROM THEIR "SPOTS" FOR REASONS OF DISCIPLINE OR
EFFICIENCY. 

FN17  E.G., THAT THERE IS EITHER NO EVIDENCE IN THE RECORD TO SHOW,
OR THE RECORD EXPLICITLY NEGATIVES, THAT RESPONDENTS CARRY THE NEWSBOYS
ON THEIR PAYROLLS, PAY "SALARIES" TO THEM, KEEP RECORDS OF THEIR SALES
OR LOCATIONS, OR REGISTER THEM AS "EMPLOYEES" WITH THE SOCIAL SECURITY
BOARD, OR THAT THE NEWSBOYS ARE COVERED BY WORKMEN'S COMPENSATION
INSURANCE OR THE CALIFORNIA COMPENSATION ACT.  FURTHERMORE, IT IS URGED
THE RECORD SHOWS THAT THE NEWSBOYS ALL SELL NEWSPAPERS, PERIODICALS AND
OTHER ITEMS NOT FURNISHED TO THEM BY THEIR RESPECTIVE PUBLISHERS,
ASSUME THE RISK FOR PAPERS LOST, STOLEN OR DESTROYED, PURCHASE AND SELL
THEIR "SPOTS," HIRE ASSISTANTS AND RELIEF MEN AND MAKE ARRANGEMENTS
AMONG THEMSELVES FOR THE SALE OF COMPETING OR LEFTOVER PAPERS. 

FN18  THEY HAVE ABANDONED HERE THE CONTENTION, MADE IN THE CIRCUIT
COURT, THAT THE ACT DOES NOT REACH THEIR CONTROVERSIES WITH THE
NEWSBOYS BECAUSE THEY DO NOT AFFECT COMMERCE. 

FN19  THE SO-CALLED "CONTROL TEST" WITH WHICH COMMON-LAW JUDGES HAVE
WRESTLED TO SECURE PRECISE AND READY APPLICATIONS DID NOT ESCAPE THE
DIFFICULTIES ENCOUNTERED IN BORDERLAND CASES BY ITS REFORMULATION IN
THE RESTATEMENT OF THE LAW OF AGENCY SEC. 220.  THAT EVEN AT THE COMMON
LAW THE CONTROL TEST AND THE COMPLEX OF INCIDENTS EVOLVED IN APPLYING
IT TO DISTINGUISH AN "EMPLOYEE" FROM AN "INDEPENDENT CONTRACTOR," FOR
PURPOSES OF VICARIOUS LIABILITY IN TORT, DID NOT NECESSARILY HAVE THE
SAME SIGNIFICANCE IN OTHER CONTEXTS, COMPARE LUMLEY V. GYE (1853) EL. &
BL. 216, AND SEE ALSO THE CASES COLLECTED IN 21 A.L.R. 1229 ET SEQ.; 23
A.L.R. 984 ET SEQ. 

FN20 SEE, E.G., STEVENS, THE TEST OF THE EMPLOYMENT RELATION (1939)
38 MICH. L. REV. 188; STEFFEN, INDEPENDENT CONTRACTOR AND THE GOOD LIFE
(1935) 2 U. OF CHI.  L. REV. 501; LEIDY, SALESMEN AS INDEPENDENT
CONTRACTORS (1938) 28 MICH. L. REV. 365; N.Y. LAW REVISION COMMISSION
REPORT, 1939(1939) LEGISLATIVE DOCUMENT NO. 65(K). 

FN21  SEE NOTE 20 SUPRA. 

FN22  COMPARE, E.G., MCKINLEY V. PAYNE LUMBER CO., 200 ARK. 1114, 143
S.W.2D 38; INDUSTRIAL COMM'N V. NORTHWESTERN INS. CO., 103 COLO. 550,
88 P.2D 560; SCHOMP V. FULLER BRUSH CO., 124 N.J.L. 487, 12 A.2D 702;
126 N.J.L. 368, 19 A.2D 780; UNEMPLOYMENT COMPENSATION COMM'N V.
JEFFERSON INS. CO., 215 N.C. 479, 2 S.E.2D 584; SINGER SEWING MACHINE
CO. V. UNEMPLOYMENT COMPENSATION COMM'N, 167 ORE.  142, 103 P.2D 708,
WITH MCCAIN V. CROSSETT LUMBER CO., 174 S.W.2D 114(ARK.); HILL HOTEL
CO. V. KINNEY, 138 NEB. 760, 295 N.W. 397; WASHINGTON RECORDER CO. V.
ERNST, 199 WASH. 176, 91 P.2D 718; WISCONSIN BRIDGE CO. V. INDUSTRIAL
COMM'N, 233 WIS. 467, 290 N.W. 199.  SEE GENERALLY WOLFE, DETERMINATION
OF EMPLOYER-EMPLOYEE RELATIONSHIPS IN SOCIAL LEGISLATION (1941) 41 COL.
L. REV. 1015.  AND SEE NOTE 23 INFRA.    FN23  COMPARE STOCKWELL V.
MORRIS, 46 WYO. 1, WITH AUER V. SINCLAIR REFINING CO., 103 N.J.L. 372;
SCHOMP V. FULLER BRUSH CO., 124 N.J.L. 487, 126 N.J.L. 368, WITH FULLER
BRUSH CO. V. INDUSTRIAL COMM'N, 99 UTAH 97; STOVER BEDDING CO. V.
INDUSTRIAL COMM'N, 99 UTAH 423, WITH MALTZ V. JACKOWAY-KATZ CAP CO.,
336 MO. 1000. 

FN24  CF. NOTES 28-30 INFRA AND TEXT. 

FN25  AMERICAN STEEL FOUNDRIES CO. V. TRI-CITY COUNCIL, 257 U.S. 184,
209, CITED IN H.R. REP. NO. 1147, 74TH CONG., 1ST SESS. 10; CF. BAKERY
& PASTRY DRIVERS V. WOHL, 315 U.S. 769. 

FN26  THE PRACTICE OF SELF-ORGANIZATION AND COLLECTIVE BARGAINING TO
RESOLVE LABOR DISPUTES HAS FOR SOME TIME BEEN COMMON AMONG SUCH VARIED
TYPES OF "INDEPENDENT CONTRACTORS" AS MUSICIANS (HOW COLLECTIVE
BARGAINING WORKS (20TH CENTURY FUND, 1942) 848-866; PROCEEDINGS OF THE
47TH ANNUAL CONVENTION OF THE AMERICAN FEDERATION OF MUSICIANS (1942)),
ACTORS (SEE, E.G., COLLECTIVE BARGAINING BY ACTORS (1926) BUREAU OF
LABOR STATISTICS, BULLETIN NO. 402; HARDING, THE REVOLT OF THE ACTORS
(1929); ROSS, STARS AND STRIKES (1941)), AND WRITERS (SEE, E.G.,
ROSTEN, HOLLYWOOD (1941); ROSS, STARS AND STRIKES (1941) 48-63), AND
SUCH ATYPICAL "EMPLOYEES" AS INSURANCE AGENTS, ARTISTS, ARCHITECTS AND
ENGINEERS (SEE, E.G., PROCEEDINGS OF THE 2D CONVENTION OF THE UOPWA,
C.I.O. (1938); PROCEEDINGS OF THE 3D CONVENTION OF THE UOPWA, C.I.O.
(1940); HANDBOOK OF AMERICAN TRADE UNIONS (1936), BUREAU OF LABOR
STATISTICS, BULL.  NO. 618, 291-293; CONSTITUTION AND BY-LAWS OF THE
IFTEAD OF THE A.F.L., 1942). 

FN27  CONTROL OF "PHYSICAL CONDUCT IN THE PERFORMANCE OF THE SERVICE"
IS THE TRADITIONAL TEST OF THE "EMPLOYEE RELATIONSHIP" AT COMMON LAW. 
CF., E.G., RESTATEMENT OF THE LAW OF AGENCY SEC. 220(1). 

FN28  SEN. REP. NO. 573, 74TH CONG., 1ST SESS. 7. 

FN29  SEN. REP. NO. 573, 74TH CONG., 1ST SESS. 6. 

FN30  CF. PHELPS-DODGE CORP. V. LABOR BOARD, 313 U.S. 177; AND
COMPARE DRIVERS' UNION V. LAKE VALLEY CO., 311 U.S. 91, WITH SEN. REP.
NO. 573, 74TH CONG., 1ST SESS. 7. 

FN31  COMPARE LABOR BOARD V. WATERMAN S.S. CORP., 309 U.S. 206;
PHELPS-DODGE CORP. V. LABOR BOARD, 313 U.S. 177. 

FN32  CF. SOUTH CHICAGO COAL & DOCK CO. V. BASSETT, 309 U.S. 251;
LEHIGH VALLEY COAL CO. V. YENSAVAGE, 218 F. 547, 552(C.C.A.). 

FN33  LEHIGH VALLEY COAL CO. V. YENSAVAGE, 218 F. 547, 552(C.C.A.). 

FN34  E.G., MATTER OF METRO-GOLDWYN-MAYER STUDIOS, 7 N.L.R.B. 662,
686-690; MATTER OF KMOX BROADCASTING STATION, 10 N.L.R.B. 479; MATTER
OF INTERSTATE GRANITE CORP., 11 N.L.R.B. 1046; MATTER OF SUN LIFE INS.
CO., 15 N.L.R.B. 817; MATTER OF KELLY CO., 34 N.L.R.B. 325; MATTER OF
JOHN YASEK, 37 N.L.R.B. 156. 

FN35  44 STAT. 1424, 33 U.S.C. SEC. 901 ET SEQ. 

FN36  UNDER SEC. 2(B) OF THE COMMUNICATIONS ACT OF 1934, 48 STAT.
1064, 1065, 47 U.S.C. SEC. 152(B). 

FN37  FULL-TIME NEWSBOYS FOR THE HERALD INCLUDES THOSE WHO REGULARLY
SELL TO THE PUBLIC FIVE OR MORE EDITIONS FIVE OR MORE DAYS PER WEEK. 
FULL-TIME NEWSBOYS FOR THE NEWS INCLUDES THOSE WHO REGULARLY SELL TO
THE GENERAL PUBLIC THE FIFTH, SIXTH, EIGHTH, NINTH AND TENTH, OR THE
SIXTH, EIGHTH, NINTH AND TENTH EDITIONS FIVE OR MORE DAYS PER WEEK, OR
THE FOURTH AND EARLIER EDITIONS FOR AT LEAST FOUR HOURS DAILY BETWEEN
4:00 A.M. AND 10:00 A.M. FIVE DAYS PER WEEK. 

FN38  PART-TIME NEWSBOYS FOR THE HERALD MEANS THOSE SELLING LESS THAN
FIVE EDITIONS DAILY OR FOR LESS THAN FIVE DAYS PER WEEK. 

FN39  ESTABLISHED SPOTS ARE CORNERS AT WHICH NEWSBOYS SOLD THOSE
PAPERS FOR AT LEAST FIVE OR MORE DAYS PER WEEK DURING AT LEAST SIX
CONSECUTIVE MONTHS. 

FN40  GLENDALE IS INCLUDED IN THE TIMES UNIT. 

FN41  TEMPORARY NEWSBOYS ARE THOSE SELLING FOR LESS THAN THIRTY-ONE
CONSECUTIVE DAYS. 

FN42  EXCEPT NEWSBOYS SELLING THE TIMES IN GLENDALE. 

FN43  HEARINGS BEFORE COMMITTEE ON EDUCATION AND LABOR ON S. 1958,
74TH CONG., 1ST SESS. 83. 

FN44  E.G., SEE FIRST ANNUAL REPORT OF THE NATIONAL LABOR RELATIONS
BOARD 112-120; SECOND ANNUAL REPORT OF THE NATIONAL LABOR RELATIONS
BOARD 122-140; THIRD ANNUAL REPORT OF THE NATIONAL LABOR RELATIONS
BOARD 156-197; FOURTH ANNUAL REPORT OF THE NATIONAL LABOR RELATIONS
BOARD 82-97; FIFTH ANNUAL REPORT OF THE NATIONAL LABOR RELATIONS BOARD
63-72; SIXTH ANNUAL REPORT OF THE NATIONAL LABOR RELATIONS BOARD 63
71. 

FN45  MATTER OF GULF OIL CORP., 4 N.L.R.B. 133. 

MR. JUSTICE REED CONCURS IN THE RESULT.  HE IS OF THE OPINION THAT
THE TEST OF COVERAGE FOR EMPLOYEES IS THAT ANNOUNCED BY THE BOARD IN
THE MATTER OF STOCKHOLDERS PUBLISHING COMPANY, INC., AND LOS ANGELES
NEWSBOYS LOCAL INDUSTRIAL UNION NO. 75, C.I.O., AND OTHER SIMILAR
CASES, DECIDED JANUARY 9, 1941, 28 N.L.R.B. 1006, 1022-23. 

MR. JUSTICE ROBERTS: 

I THINK THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD BE
AFFIRMED.  THE OPINION OF THAT COURT REPORTED IN 136 F.2D 608, SEEMS TO
ME ADEQUATELY TO STATE THE CONTROLLING FACTS AND CORRECTLY TO DEAL WITH
THE QUESTION OF LAW PRESENTED FOR DECISION.  I SHOULD NOT ADD ANYTHING
WERE IT NOT FOR CERTAIN ARGUMENTS PRESENTED HERE AND APPARENTLY
ACCEPTED BY THE COURT. 

I THINK IT PLAIN THAT NEWSBOYS ARE NOT "EMPLOYEES" OF THE RESPONDENTS
WITHIN THE MEANING AND INTENT OF THE NATIONAL LABOR RELATIONS ACT. 
WHEN CONGRESS, IN SEC. 2(3), SAID "THE TERM 'EMPLOYEE' SHALL INCLUDE
ANY EMPLOYEE,  ... " IT STATED AS CLEARLY AS LANGUAGE COULD DO IT THAT
THE PROVISIONS OF THE ACT WERE TO EXTEND TO THOSE WHO, AS A RESULT OF
DECADES OF TRADITION WHICH HAD BECOME PART OF THE COMMON UNDERSTANDING
OF OUR PEOPLE, BEAR THE NAMED RELATIONSHIP.  CLEARLY ALSO CONGRESS DID
NOT DELEGATE TO THE NATIONAL LABOR RELATIONS BOARD THE FUNCTION OF
DEFINING THE RELATIONSHIP OF EMPLOYMENT SO AS TO PROMOTE WHAT THE BOARD
UNDERSTOOD TO BE THE UNDERLYING PURPOSE OF THE STATUTE.  THE QUESTION
WHO IS AN EMPLOYEE, SO AS TO MAKE THE STATUTE APPLICABLE TO HIM, IS A
QUESTION OF THE MEANING OF THE ACT AND, THEREFORE, IS A JUDICIAL AND
NOT AN ADMINISTRATIVE QUESTION. 

I DO NOT THINK THAT THE COURT BELOW SUGGESTED THAT THE FEDERAL COURTS
SITTING IN THE VARIOUS STATES MUST DETERMINE WHETHER A GIVEN PERSON IS
AN EMPLOYEE BY APPLICATION OF EITHER THE LOCAL STATUTES OR LOCAL STATE
DECISIONS.  QUITE THE CONTRARY.  AS A RESULT OF COMMON LAW DEVELOPMENT,
MANY PRESCRIPTIONS OF FEDERAL STATUTES TAKE ON MEANING WHICH IS
UNIFORMLY ASCRIBED TO THEM BY THE FEDERAL COURTS, IRRESPECTIVE OF LOCAL
VARIANCE.  FUNK V. UNITED STATES, 290 U.S. 371.  THIS COURT HAS
REPEATEDLY RESORTED TO JUST SUCH CONSIDERATIONS IN DEFINING THE VERY
TERM "EMPLOYEE" AS USED IN OTHER FEDERAL STATUTES, AS THE OPINION OF
THE COURT BELOW SHOWS.  THERE IS A GENERAL AND PREVAILING RULE
THROUGHOUT THE UNION AS TO THE INDICIA OF EMPLOYMENT AND THE CRITERIA
OF ONE'S STATUS AS EMPLOYEE.  UNQUESTIONABLY IT WAS TO THIS COMMON,
GENERAL, AND PREVAILING UNDERSTANDING THAT CONGRESS REFERRED IN THE
STATUTE AND, ACCORDING TO THAT UNDERSTANDING, THE FACTS STATED IN THE
OPINION BELOW, AND IN THAT OF THIS COURT, IN MY JUDGMENT, DEMONSTRATE
THAT THE NEWSBOYS WERE NOT EMPLOYEES OF THE NEWSPAPERS. 

IT IS URGED THAT THE ACT USES THE TERM IN SOME LOOSE AND UNUSUAL
SENSE SUCH AS JUSTIFIES THE BOARD'S DECISION BECAUSE CONGRESS ADDED TO
THE DEFINITION OF EMPLOYEE ABOVE QUOTED THESE FURTHER WORDS:  "AND
SHALL NOT BE LIMITED TO THE EMPLOYEES OF A PARTICULAR EMPLOYER, UNLESS
THE ACT EXPLICITLY STATES OTHERWISE,  ...  "  THE SUGGESTION SEEMS TO
BE THAT CONGRESS INTENDED THAT THE TERM EMPLOYEE SHOULD MEAN THOSE WHO
WERE NOT IN FACT EMPLOYEES, BUT IT IS PERFECTLY EVIDENT, NOT ONLY FROM
THE PROVISIONS OF THE ACT AS A WHOLE BUT FROM THE SENATE COMMITTEE'S
REPORT, THAT THIS PHRASE WAS ADDED TO PREVENT ANY MISCONCEPTION OF THE
PROVISIONS WHEREBY EMPLOYEES WERE TO BE ALLOWED FREELY TO COMBINE AND
TO BE REPRESENTED IN COLLECTIVE BARGAINING BY THE REPRESENTATIVES OF
THEIR UNION.  CONGRESS INTENDED TO MAKE IT CLEAR THAT EMPLOYEE
ORGANIZATIONS DID NOT HAVE TO BE ORGANIZATIONS OF THE EMPLOYEES OF ANY
SINGLE EMPLOYER.  BUT THAT QUALIFYING PHRASE MEANS NO MORE THAN THIS
AND WAS NEVER INTENDED TO PERMIT THE BOARD TO DESIGNATE AS EMPLOYEES
THOSE WHO, IN TRADITIONAL UNDERSTANDING, HAVE NO SUCH STATUS. 
..END :

















WALLING V. REUTER CO., 321 U.S. 671 


NO. 436.  ARGUED MARCH 10, 1944.  - DECIDED APRIL 10, 1944.  - 137 F.2D
315, VACATED. 


IN A PROCEEDING AGAINST A LOUISIANA CORPORATION BY THE ADMINISTRATOR
PURSUANT TO SEC. 17 OF THE FAIR LABOR STANDARDS ACT, THE DISTRICT COURT
PERMANENTLY ENJOINED THE CORPORATION, "ITS AGENTS, SERVANTS, EMPLOYEES
AND ATTORNEYS, AND ALL PERSONS ACTING OR CLAIMING TO ACT IN ITS BEHALF
OR INTEREST," FROM FURTHER VIOLATIONS OF THE ACT.  ON APPEAL BY THE
CORPORATION, THE CIRCUIT COURT OF APPEALS REVERSED.  SHORTLY AFTER THIS
COURT HAD GRANTED CERTIORARI, THE CORPORATION WAS DISSOLVED AND ITS
BUSINESS WAS TRANSFERRED TO STOCKHOLDERS.  UPON A MOTION TO RECALL THE
WRIT OF CERTIORARI, HELD: 

1.  THE MOTION PAPERS FAIL TO ESTABLISH THAT THE CASE IS MOOT OR HAS
ABATED MERELY BECAUSE OF THE DISSOLUTION OF THE CORPORATION, SINCE AN
INJUNCTION AGAINST THE CORPORATION MAY, IN APPROPRIATE CIRCUMSTANCES,
BE ENFORCED AGAINST THOSE TO WHOM THE BUSINESS MAY HAVE BEEN
TRANSFERRED.  THE EXTENT TO WHICH THE SUCCESSOR TO THE CORPORATION HERE
IS BOUND IS NOT DECIDED.  P. 673. 

2.  BY REASON OF ITS DISSOLUTION, THE CORPORATION, THE SOLE
RESPONDENT HERE, NO LONGER HAS CAPACITY TO BE SUED, THUS ABATING THE
PRESENT APPELLATE PROCEEDING.  P. 675. 

3.  ALTHOUGH THIS COURT MAY NOT PROPERLY PROCEED WITH THE APPEAL, IT
MAY NEVERTHELESS, IN THE EXERCISE OF ITS SUPERVISORY APPELLATE POWER,
MAKE SUCH DISPOSITION OF THE CASE AS JUSTICE REQUIRES.  P. 676. 

4.  THE JUDGMENT OF THE DISTRICT COURT DETERMINED, SUBJECT ONLY TO
RESORT TO THE PRESCRIBED APPELLATE REVIEW, THE RIGHT OF THE
ADMINISTRATOR TO AN INJUNCTION.  THAT REVIEW CONTEMPLATES MORE THAN A
CONSIDERATION OF THE CASE BY THE CIRCUIT COURT OF APPEALS ALONE, BUT
ALSO APPROPRIATE PROCEEDINGS IN THIS COURT.  THE FULL REVIEW
CONTEMPLATED BY THE STATUTE HAVING BEEN FRUSTRATED BY RESPONDENT'S
DISSOLUTION, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS CANNOT
RIGHTLY BE MADE THE IMPLEMENT FOR DEPRIVING THE ADMINISTRATOR OF THE
BENEFIT OF A JUDGMENT IN THE DISTRICT COURT.  THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS IS THEREFORE VACATED AND THE CAUSE REMANDED TO
THE DISTRICT COURT, WHERE THE ADMINISTRATOR MAY TAKE SUCH PROCEEDINGS
FOR THE ENFORCEMENT OF ITS JUDGMENT AS HE MAY DEEM ADVISABLE AND AS MAY
BE PROPER IN THE CIRCUMSTANCES.  P. 677. 

WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U.S. DEPARTMENT
OF LABOR, V. JAMES V. REUTER, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 320 U.S. 731, TO REVIEW THE REVERSAL OF A JUDGMENT, 49
F.SUPP.  485, ENJOINING THE DEFENDANT CORPORATION FROM VIOLATIONS OF
THE FAIR LABOR STANDARDS ACT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS SUIT PURSUANT TO SEC. 17 OF THE FAIR LABOR
STANDARDS ACT OF JUNE 25, 1938, 52 STAT. 1060, 29 U.S.C. SECS. 201 ET
SEQ., TO RESTRAIN RESPONDENT, A LOUISIANA CORPORATION, FROM VIOLATING
THE ACT.  THE DISTRICT COURT FOUND VIOLATIONS OF SECS. 6, 7,
15(A)(1)(2) AND (5) OF THE ACT AND GAVE JUDGMENT PERMANENTLY
RESTRAINING RESPONDENT, "ITS AGENTS, SERVANTS, EMPLOYEES AND ATTORNEYS,
AND ALL PERSONS ACTING OR CLAIMING TO ACT IN ITS BEHALF OR INTEREST"
FROM FURTHER VIOLATIONS.  ON APPEAL THE CIRCUIT COURT OF APPEALS FOR
THE FIFTH CIRCUIT REVERSED, 137 F.2D 315, AND REMANDED THE CAUSE TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS.  THIS COURT GRANTED CERTIORARI,
320 U.S. 731. 

THE PRESENT PROCEEDING IS A MOTION TO RECALL THE WRIT OF CERTIORARI,
SUBMITTED BY THE ATTORNEY WHO HAS APPEARED FOR RESPONDENT IN THIS COURT
AND IN THE TWO COURTS BELOW.  HIS MOTION IS BASED UPON THE AFFIDAVIT OF
JAMES V. REUTER, DESCRIBED AS THE FORMER PRESIDENT OF THE RESPONDENT
CORPORATION, FROM WHICH IT APPEARS THAT ON DECEMBER 15, 1943, SHORTLY
AFTER THIS COURT HAD GRANTED CERTIORARI, REUTER AND TWO OTHERS, BEING
ALL THE STOCKHOLDERS OF RESPONDENT, DULY SIGNED A CONSENT THAT THE
CORPORATION BE DISSOLVED AND THAT REUTER BE DESIGNATED ITS LIQUIDATOR;
AND THAT ONE DAY LATER, ON DECEMBER 16, 1943, REUTER, AS LIQUIDATOR,
CERTIFIED THAT THE CORPORATION HAD BEEN "COMPLETELY WOUND UP AND IS
DISSOLVED."  UPON FILING THE CONSENT AND CERTIFICATE WITH THE SECRETARY
OF STATE, WITH PROOF OF PUBLICATION OF THE NOTICE OF DISSOLUTION, THE
SECRETARY OF STATE ISSUED HIS CERTIFICATE OF DECEMBER 31, 1943,
CERTIFYING THAT THE CORPORATION "STANDS DISSOLVED."  SEE SEC. 54 OF ACT
250 OF THE LOUISIANA LEGISLATURE OF 1928 AS AMENDED BY SEC. 1 OF ACT 65
OF 1932, AND SECS. 62 AND 64 OF ACT 250 OF THE LOUISIANA LEGISLATURE OF
1928.  THE PURPOSE OF THE DISSOLUTION IS STATED TO HAVE BEEN TO SECURE
TAX ADVANTAGES. 

IN SUPPORT OF THE MOTION IT IS ARGUED THAT SINCE THE CORPORATION IS,
BY LOUISIANA LAW, NOW DISSOLVED WITHOUT ANY PROLONGATION OF ITS LIFE
FOR THE PURPOSE OF CONTINUING PENDING LITIGATION AGAINST IT, SEE MCCOY
V. STATE LINE OIL & GAS CO., 180 LA. 579, 583, THE CASE HAS BECOME
MOOT; AND FURTHER THAT, FOR WANT OF A PARTY RESPONDENT, THIS COURT IS
WITHOUT POWER TO RENDER ANY EFFECTIVE JUDGMENT IN THE APPELLATE
PROCEEDING NOW PENDING BEFORE IT.  FN1 

IN THE PRESENT POSTURE OF THE CASE WE THINK IT PLAIN THAT THE MOVING
PAPERS FAIL TO ESTABLISH THAT THE CASE IS MOOT OR HAS ABATED MERELY
BECAUSE OF THE DISSOLUTION OF THE CORPORATE DEFENDANT.  SEE UNITED
STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290, 307-310; CF.
SOUTHERN PACIFIC CO. V. INTERSTATE COMMERCE COMM'N, 219 U.S. 433, 452;
SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE COMMERCE COMM'N, 219 U.S.
498, 514-516; LEONARD & LEONARD V. EARLE, 279 U.S. 392, 398.  THE
JUDGMENT RENDERED BY THE DISTRICT COURT DETERMINED, SUBJECT ONLY TO
RESORT TO THE PRESCRIBED APPELLATE REVIEW OF THE JUDGMENT, THE RIGHT OF
THE ADMINISTRATOR TO AN INJUNCTION RESTRAINING THE CORPORATION AND
THOSE ASSOCIATED OR IDENTIFIED WITH IT FROM VIOLATING THE STATUTE.  NOT
ONLY IS SUCH AN INJUNCTION ENFORCIBLE BY CONTEMPT PROCEEDINGS AGAINST
THE CORPORATION, ITS AGENTS AND OFFICERS AND THOSE INDIVIDUALS
ASSOCIATED WITH IT IN THE CONDUCT OF ITS BUSINESS, WILSON V. UNITED
STATES, 221 U.S. 361, 376-377; CF. IN RE LENNON, 166 U.S. 548, BUT IT
MAY ALSO, IN APPROPRIATE CIRCUMSTANCES, BE ENFORCED AGAINST THOSE TO
WHOM THE BUSINESS MAY HAVE BEEN TRANSFERRED, WHETHER AS A MEANS OF
EVADING THE JUDGMENT OR FOR OTHER REASONS.  THE VITALITY OF THE
JUDGMENT IN SUCH A CASE SURVIVES THE DISSOLUTION OF THE CORPORATE
DEFENDANT.  SOUTHPORT PETROLEUM CO. V. LABOR BOARD, 315 U.S. 100, 106
107.  AND SEE, TO LIKE EFFECT, LABOR BOARD V. HOPWOOD RETINNING CO.,
104 F.2D 302, 304-305; INTERSTATE COMMERCE COMM'N V. WESTERN NEW YORK &
P.R. CO., 82 F. 192, 194-195; MORTON V. SUPERIOR COURT, 65 CAL. 496, 4
P. 489; KATENKAMP V. SUPERIOR COURT, 16 CAL.2D 696, 108 P.2D 1; MAYOR
V. NEW YORK & S.I. FERRY CO., 64 N.Y. 622; FARMERS FERTILIZER CO. V.
RUH, 7 OHIO APP. 430; SPERRY & HUTCHINSON CO. V. MCKELVEY HUGHES CO.,
64 PA. SUPER.  57, 61-62; CF. ALEMITE MFG. CORP. V. STAFF, 42 F.2D 832,
833; LABOR BOARD V. COLTEN, 105 F.2D 179, 183; UNION DRAWN STEEL CO. V.
LABOR BOARD, 109 F.2D 587, 589, 594-595.  AND THESE PRINCIPLES MAY BE
APPLIED IN FULLER MEASURE IN FURTHERANCE OF THE PUBLIC INTEREST, WHICH
HERE THE PETITIONER REPRESENTS, THAN IF ONLY PRIVATE INTERESTS WERE
INVOLVED.  SEE VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515,
552, AND CASES CITED. 

WHETHER A FAMILY BUSINESS, SUCH AS THIS ONE APPEARS TO BE, HAS
SUCCESSFULLY AVOIDED ALL RESPONSIBILITY FOR COMPLIANCE WITH THE
JUDGMENT ENTERED AGAINST THE FAMILY CORPORATION, BY THE SIMPLE
EXPEDIENT OF DISSOLVING IT AND CONTINUING THE BUSINESS UNDER THE
INDIVIDUAL CONTROL OF MEMBERS OF THE FAMILY, AS APPEARS TO HAVE TAKEN
PLACE HERE, IS A QUESTION WHICH IT IS UNNECESSARY FOR US TO DECIDE ON
THE BASIS OF THE SCANTY AND NOT ENTIRELY ENLIGHTENING AFFIDAVITS NOW
SUBMITTED TO US.  IT IS ENOUGH FOR PRESENT PURPOSES, IF THE APPELLATE
PROCEDURE, RENDERED ABORTIVE BY RESPONDENT'S DISSOLUTION, HAS NOT
DEPRIVED PETITIONER OF THE BENEFITS OF THE JUDGMENT RENDERED IN HIS
FAVOR BY THE DISTRICT COURT, THAT HE IS ENTITLED TO INITIATE
PROCEEDINGS TO ENFORCE THE JUDGMENT AGAINST INDIVIDUALS WHO EITHER
DISOBEY ITS COMMAND OR PARTICIPATE IN THE EVASION OF ITS TERMS.  IN
SUCH PROCEEDINGS THE QUESTION AS TO HOW FAR THE SUCCESSOR TO THE
CORPORATION IS BOUND BY THE DECREE MAY BE FULLY INVESTIGATED BY THE
DISTRICT COURT, WITH APPROPRIATE APPELLATE REVIEW.  THE DECISIVE
QUESTION FOR US THEN IS WHETHER PETITIONER CAN BE RIGHTLY DEPRIVED OF
THE BENEFIT OF THE DISTRICT COURT'S JUDGMENT BY RESPONDENT'S INVOCATION
OF THE APPELLATE PROCEDURE PROVIDED BY THE STATUTE, FOLLOWED BY THE
FRUSTRATION OF THAT PROCEDURE BY RESPONDENT'S DISSOLUTION. 

IT IS TRUE THAT THIS COURT CANNOT, IN THE PRESENT STATE OF THE
RECORD,  FN2  RENDER AN EFFECTIVE JUDGMENT ON THE MERITS, BECAUSE THE
SOLE RESPONDENT BROUGHT BEFORE US BY THE PETITION FOR CERTIORARI, BY
REASON OF ITS DISSOLUTION, NO LONGER HAS CAPACITY TO BE SUED, AND NO
ONE HAS SOUGHT TO PROCURE SUBSTITUTION OF ANY OTHER PERSON AS PARTY
RESPONDENT.  SUCH IS THE EFFECT OF DISSOLUTION UNDER THE LOUISIANA
LAW.  SEE MCCOY V. STATE LINE OIL & GAS CO., SUPRA; ORTEGO V. NEHI
BOTTLING WORKS, 182 SO. 365, 367(LA. APP.); COMPARE OKLAHOMA NATURAL
GAS CO. V. OKLAHOMA, 273 U.S. 257.  BUT THE JUDGMENT OF THE DISTRICT
COURT WAS ENTERED AGAINST RESPONDENT BEFORE IT WAS DISSOLVED AND WHILE
IT WAS CAPABLE OF BEING SUED.  HENCE IT WAS BINDING ON RESPONDENT AND,
AS WE HAVE SEEN, ON OTHERS WHO, IN APPROPRIATE CIRCUMSTANCES, MAY BE
BROUGHT WITHIN ITS REACH.  THE DISSOLUTION OF RESPONDENT, SO LONG AS
THE CERTIFICATE OF DISSOLUTION IS NOT ANNULLED, PRECLUDES ENFORCEMENT
OF THE JUDGMENT AGAINST IT, BUT DOES NOT FORECLOSE PETITIONER FROM
ASSERTING HIS RIGHTS AGAINST SUCH OTHER PERSONS AS MAY BE BOUND BY THE
JUDGMENT.  HENCE IT DOES NOT FOLLOW, BECAUSE THE PENDING APPELLATE
PROCEEDING HAS ABATED, THAT THE JUDGMENT OF THE DISTRICT COURT HAS
ABATED BECAUSE OF RESPONDENT'S DISSOLUTION.  NOR DOES IT FOLLOW,
BECAUSE OF THIS COURT'S INABILITY TO PROCEED WITH THE APPEAL ON THE
MERITS FOR WANT OF A PROPER PARTY RESPONDENT, THAT PETITIONER IS TO BE
DEPRIVED OF THE BENEFIT OF HIS JUDGMENT IN THE DISTRICT COURT, WHICH
THE STATUTE CONTEMPLATES SHALL BE UNDISTURBED SAVE ONLY BY PURSUIT TO
COMPLETION OF THE PRESCRIBED APPELLATE PROCEDURE. 

IT IS A FAMILIAR PRACTICE OF THIS COURT THAT WHERE FOR ANY REASON THE
COURT MAY NOT PROPERLY PROCEED WITH A CASE BROUGHT TO IT ON APPEAL, OR
WHERE FOR ANY REASON IT IS WITHOUT POWER TO PROCEED WITH THE APPEAL, IT
MAY NEVERTHELESS, IN THE EXERCISE OF ITS SUPERVISORY APPELLATE POWER,
MAKE SUCH DISPOSITION OF THE CASE AS JUSTICE REQUIRES.  WHEN EVENTS
SUBSEQUENT TO AN APPEAL MAY AFFECT THE CORRECTNESS OF THE JUDGMENT
APPEALED FROM, THIS COURT MAY VACATE THE JUDGMENT AND REMAND THE CAUSE
FOR FURTHER PROCEEDINGS.  MISSOURI EX REL. WABASH RY. CO. V. PUBLIC
SERVICE COMM'N, 273 U.S. 126, 131; PATTERSON V. ALABAMA, 294 U.S. 600,
607, AND CASES CITED; VILLA V. VAN SCHAICK, 299 U.S. 152, 155-156. 
WHEN IT IS WITHOUT JURISDICTION TO DECIDE AN APPEAL WHICH SHOULD HAVE
BEEN PROSECUTED TO ANOTHER COURT, IT MAY VACATE THE JUDGMENT AND REMAND
THE CAUSE IN ORDER TO ENABLE THE COURT BELOW TO ENTER A NEW JUDGMENT
FROM WHICH A PROPER APPEAL MAY BE TAKEN.  GULLY V. INTERSTATE NATURAL
GAS CO., 292 U.S. 16; OKLAHOMA GAS CO. V. OKLAHOMA PACKING CO., 292
U.S. 386, 392; JAMESON & CO. V. MORGENTHAU, 307 U.S. 171, 174; PHILLIPS
V. UNITED STATES, 312 U.S. 246, 254.  IF A JUDGMENT HAS BECOME MOOT,
THIS COURT MAY NOT CONSIDER ITS MERITS, BUT MAY MAKE SUCH DISPOSITION
OF THE WHOLE CASE AS JUSTICE MAY REQUIRE.  UNITED STATES V. HAMBURG
AMERICAN CO., 239 U.S. 466, 477-478; HEITMULLER V. STOKES, 256 U.S.
359, 362-363; BROWNLOW V. SCHWARTZ, 261 U.S. 216, 218. 

HERE, FOR THE REASONS WE HAVE STATED, IT APPEARS THAT PETITIONER IS
ENTITLED TO RETAIN THE BENEFIT OF THE JUDGMENT ENTERED IN HIS FAVOR BY
THE DISTRICT COURT, SUBJECT ONLY TO THE REVIEW OF THAT JUDGMENT ON
APPEAL AS THE STATUTE PRESCRIBES, AND THAT THAT JUDGMENT IS NOT SHOWN
TO BE MOOT OR TO HAVE ABATED.  BUT REVIEW OF A JUDGMENT OF THE DISTRICT
COURT CONTEMPLATES MORE THAN A CONSIDERATION OF THE CASE BY THE CIRCUIT
COURT OF APPEALS ALONE.  THE LOSING PARTY IN THAT COURT MAY SECURE
FURTHER REVIEW HERE UPON CERTIORARI, IF HE SO DESIRES AND IF THIS
COURT, IN ITS DISCRETION, GRANTS THE WRIT.  THUS APPELLATE REVIEW OF
THE JUDGMENT OF THE DISTRICT COURT HAD NOT BEEN COMPLETED WHEN
RESPONDENT WAS DISSOLVED, AND THE FULL REVIEW CONTEMPLATED BY THE
STATUTE WAS FRUSTRATED BY THAT DISSOLUTION.  BY REASON OF THAT ACTION,
THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS, WHICH IS NOT FINAL
BECAUSE THE CASE IS PENDING IN THIS COURT, CANNOT RIGHTLY BE MADE THE
IMPLEMENT FOR DEPRIVING PETITIONER OF THE BENEFIT OF HIS JUDGMENT IN
THE DISTRICT COURT.  WE CONCLUDE, THEREFORE, THAT IN THE CIRCUMSTANCES
THE ONLY JUST AND APPROPRIATE DISPOSITION WHICH CAN BE MADE OF THIS
CASE IS THAT THE JUDGMENT OF THE COURT OF APPEALS BE VACATED, AND THE
JUDGMENT OF THE DISTRICT COURT RESTORED, AS THOUGH RESPONDENT HAD TAKEN
NO APPEAL. 

THE JUDGMENT OF THE COURT OF APPEALS IS VACATED, AND THE CAUSE WILL
BE REMANDED TO THE DISTRICT COURT, WHERE PETITIONER WILL BE FREE TO
TAKE SUCH PROCEEDINGS FOR THE ENFORCEMENT OF THE JUDGMENT OF THE
DISTRICT COURT, AS HE MAY DEEM ADVISABLE, AND AS MAY BE PROPER IN THE
CIRCUMSTANCES OF THE CASE.  ANY ORDER OF THE DISTRICT COURT WILL, OF
COURSE, BE SUBJECT TO APPROPRIATE APPELLATE REVIEW.  SO ORDERED. 

FN1  IN THE MCCOY CASE, IT WAS HELD AT 585-586 THAT IT IS THE DUTY OF
A LIQUIDATOR OF A CORPORATION IN DISSOLUTION TO "TERMINATE IN A LEGAL
MANNER  ...  BY PROSECUTING, DEFENDING, OR COMPROMISING IT, ALL
LITIGATION PENDING IN WHICH THE CORPORATION IS A PARTY."  THE COURT
FURTHER STATED THAT "THE LEGISLATURE HAD NO INTENTION OF SANCTIONING
THE ISSUANCE OF A CERTIFICATE OF DISSOLUTION" WHERE THE LIQUIDATOR HAD
FAILED TO DISCHARGE THAT DUTY, TO THE INJURY OF OPPOSING LITIGANTS. 
THE LOUISIANA COURT DEEMED IT APPROPRIATE IN THAT CASE TO ANNUL THE
CERTIFICATE OF DISSOLUTION OF THE CORPORATION THERE INVOLVED, IN VIEW
OF ITS LIQUIDATOR'S FAILURE TO TERMINATE IN A LEGAL MANNER, PRIOR TO
DISSOLUTION, THE SUIT THERE UNDER CONSIDERATION. 

WE DO NOT CONSIDER WHETHER IN THIS CASE THIS COURT HAS A LIKE POWER
TO ANNUL THE CERTIFICATE OF DISSOLUTION OF RESPONDENT CORPORATION, SO
AS TO PERMIT THE CONTINUATION OF APPELLATE PROCEEDINGS HERE, FOR, AS
WILL APPEAR, OTHER DISPOSITION OF THE CASE SEEMS MORE APPROPRIATE. 

FN2  COMPARE NOTE 1, SUPRA.
..END :







MEDO CORP. V. LABOR BOARD, 321 U.S. 678 


NO. 265.  ARGUED MARCH 2, 1944.  - DECIDED APRIL 10, 1944.  - 135 F.2D
279, AFFIRMED. 


PETITIONER RECOGNIZED A LABOR UNION AS THE BARGAINING REPRESENTATIVE
OF ITS EMPLOYEES.  AT THEIR REQUEST AND UPON THEIR STATEMENT THAT THEY
WERE DISSATISFIED WITH THE UNION AND WOULD ABANDON IT IF THEIR WAGES
WERE INCREASED, PETITIONER NEGOTIATED WITH THEM WITHOUT THE
INTERVENTION OF THE UNION, GRANTED THE REQUESTED INCREASE IN WAGES, AND
THEREAFTER REFUSED TO RECOGNIZE OR BARGAIN WITH THE UNION.  HELD THAT
THE LABOR BOARD PROPERLY DETERMINED THAT PETITIONER'S NEGOTIATIONS WITH
ITS EMPLOYEES, ITS PAYMENT OF INCREASED WAGES, AND ITS REFUSAL TO
BARGAIN WITH THE UNION CONSTITUTED UNFAIR LABOR PRACTICES IN VIOLATION
OF SECS. 8(1) AND (5) OF THE NATIONAL LABOR RELATIONS ACT; AND THAT
THIS DETERMINATION SUPPORTED ITS ORDER DIRECTING THE CESSATION OF THOSE
PRACTICES.  P. 679. 

1.  THE NEGOTIATIONS BY PETITIONER WITH ANY OTHER THAN THE UNION, THE
DESIGNATED REPRESENTATIVE OF THE EMPLOYEES, WAS AN UNFAIR LABOR
PRACTICE.  P. 683. 

BARGAINING CARRIED ON BY THE EMPLOYER DIRECTLY WITH THE EMPLOYEES,
WHETHER A MINORITY OR A MAJORITY, WHO HAVE NOT REVOKED THEIR
DESIGNATION OF A BARGAINING AGENT, WOULD BE SUBVERSIVE OF THE MODE OF
COLLECTIVE BARGAINING WHICH THE STATUTE HAS ORDAINED.  P. 684. 

2.  IT WAS LIKEWISE AN UNFAIR LABOR PRACTICE FOR PETITIONER, THOUGH
IN RESPONSE TO THE PROPOSAL OF ITS EMPLOYEES, TO GRANT WAGE INCREASES
INDUCING THEM TO LEAVE THE UNION.  P. 685. 

3.  THE DEFECTION OF UNION MEMBERS, WHICH PETITIONER HAD INDUCED BY
UNFAIR LABOR PRACTICES, EVEN THOUGH THE RESULT WAS THAT THE UNION NO
LONGER HAD THE SUPPORT OF A MAJORITY, COULD NOT JUSTIFY PETITIONER'S
REFUSAL TO BARGAIN WITH THE UNION.  P. 687. 

MEDO PHOTO SUPPLY CORP. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 320 U.S. 723, TO REVIEW A DECREE GRANTING ENFORCEMENT OF
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 43 N.L.R.B. 989. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER RECOGNIZED A LABOR UNION AS THE BARGAINING REPRESENTATIVE
OF ITS EMPLOYEES.  AT THEIR REQUEST AND UPON THEIR STATEMENT THAT THEY
WERE DISSATISFIED WITH THE UNION AND WOULD ABANDON IT IF THEIR WAGES
WERE INCREASED, PETITIONER NEGOTIATED WITH THEM WITHOUT THE
INTERVENTION OF THE UNION, GRANTED THE REQUESTED INCREASES IN WAGES AND
THEREAFTER REFUSED TO RECOGNIZE OR BARGAIN WITH THE UNION.  THE ONLY
QUESTIONS RAISED BY THE PETITION FOR CERTIORARI ARE WHETHER IN THE
CIRCUMSTANCES, PETITIONER'S NEGOTIATIONS WITH ITS EMPLOYEES, ITS
PAYMENT OF INCREASED WAGES, AND ITS REFUSAL TO BARGAIN WITH THE UNION
CONSTITUTED UNFAIR LABOR PRACTICES IN VIOLATION OF SECS. 8(1) AND (5)
OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. SECS. 158(1) AND (5). 

UPON COMPLAINT OF THE NATIONAL LABOR RELATIONS BOARD CHARGING
PETITIONER WITH UNFAIR LABOR PRACTICES, ISSUED PURSUANT TO SEC. 10 OF
THE ACT, 29 U.S.C. SEC. 160, THE BOARD FOUND THAT PETITIONER HAD
VIOLATED SECS. 8(1) AND (5) OF THE ACT BY INTERFERING WITH ITS
EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS TO BARGAIN COLLECTIVELY,
GUARANTEED BY SEC. 7 OF THE ACT, 29 U.S.C. SEC. 157, AND BY REFUSING TO
BARGAIN WITH A UNION REPRESENTING ITS EMPLOYEES.  THE BOARD ENTERED THE
USUAL ORDER DIRECTING PETITIONER TO CEASE THE UNFAIR LABOR PRACTICES SO
FOUND, AND REQUIRING IT TO BARGAIN WITH THE UNION.  43 N.L.R.B. 989. 
ON THE BOARD'S PETITION TO ENFORCE ITS ORDER, THE COURT OF APPEALS FOR
THE SECOND CIRCUIT OVERRULED PETITIONER'S CONTENTIONS THAT THE UNION,
AT THE TIME OF THE ALLEGED UNFAIR LABOR PRACTICES, NO LONGER
REPRESENTED PETITIONER'S EMPLOYEES FOR PURPOSES OF COLLECTIVE
BARGAINING AND DIRECTED COMPLIANCE WITH THE ORDER.  135 F.2D 279.  WE
GRANTED CERTIORARI, 320 U.S. 723, AS THE CASE INVOLVES QUESTIONS OF
IMPORTANCE IN THE ADMINISTRATION OF THE NATIONAL LABOR RELATIONS ACT. 

THE BOARD MADE FINDINGS SUPPORTED BY EVIDENCE THAT AFTER EIGHTEEN OF
THE TWENTY-SIX EMPLOYEES IN PETITIONER'S SHIPPING AND RECEIVING
DEPARTMENT, CONSTITUTING AN APPROPRIATE BARGAINING UNIT, HAD DESIGNATED
THE UNION AS THEIR BARGAINING AGENT, PETITIONER, ON JUNE 4TH AND 5TH,
1941, RECOGNIZED IT AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE
EMPLOYEES.  THE UNION HAVING PROPOSED A CONTRACT PROVIDING FOR AN
INCREASE OF WAGES FOR THE EMPLOYEES, PETITIONER AGREED TO MEET THE
UNION REPRESENTATIVES ON JUNE 9, 1941 IN ORDER TO BEGIN COLLECTIVE
BARGAINING. 

TWO DAYS BEFORE THAT DATE, TWELVE OF THE EMPLOYEES WHO WERE MEMBERS
OF THE UNION, WAITED ON PETITIONER'S MANAGER AND STATED THAT THEY AND
THE SIX OTHER MEMBERS HAD NO DESIRE TO BELONG TO THE UNION IF THROUGH
THEIR OWN EFFORTS THEY COULD OBTAIN WAGE INCREASES, A LIST OF WHICH
THEY SUBMITTED.  THE MANAGER, AT THAT TIME, DECLINED TO DISCUSS THE
UNION, BUT STATED THAT HE WOULD CONSIDER THE REQUEST FOR WAGE INCREASES
WITH PETITIONER'S PRESIDENT ON THE LATTER'S RETURN TO THE OFFICE ON
JUNE 9TH, AND ASKED THE EMPLOYEES TO RETURN ON THAT DAY. 

ON JUNE 9TH, THE MANAGER, AFTER A CONFERENCE WITH THE PRESIDENT, MET
WITH A COMMITTEE OF FOUR OF THE EMPLOYEES WHO HAD CONFERRED WITH HIM
TWO DAYS BEFORE.  HE ADVISED THEM THAT PETITIONER WOULD GRANT
SUBSTANTIALLY THE REQUESTED WAGE INCREASES.  THE COMMITTEE THEN
WITHDREW TO CONVEY THIS MESSAGE TO THE OTHER EMPLOYEES, WHO THEREUPON
AGREED TO ACCEPT THE WAGE INCREASES.  THE COMMITTEE RETURNED TO INFORM
THE MANAGER OF THIS AND THAT THE EMPLOYEES "FELT THAT THEY DID NOT NEED
THE UNION, AND WE WOULD RATHER STAY OUT."  LATER IN THE DAY, THE
COMMITTEE NOTIFIED THE UNION REPRESENTATIVE THAT THE EMPLOYEES NO
LONGER DESIRED THE UNION TO REPRESENT THEM.  AT A MEETING ON THE SAME
DAY WITH THE REPRESENTATIVES OF THE UNION, AT WHICH THIS COMMITTEE WAS
PRESENT, PETITIONER'S ATTORNEY STATED THAT HE UNDERSTOOD THAT THE UNION
NO LONGER REPRESENTED A MAJORITY OF THE EMPLOYEES AND HE DECLINED TO
NEGOTIATE WITH IT UNLESS IT WERE ESTABLISHED BY AN ELECTION THAT IT
DID. 

FROM THIS, AND FROM EVIDENCE WHICH IT IS UNNECESSARY TO DETAIL, THE
BOARD CONCLUDED, AND WE ACCEPT ITS FINDINGS, THAT THE EMPLOYEES HAD NOT
REVOKED THEIR DESIGNATION OF THE UNION AS THEIR BARGAINING AGENT BEFORE
THE WAGE INCREASES WERE PROMISED BY PETITIONER'S MANAGER ON JUNE 9TH;
THAT THE INCREASES WERE INDUCED BY NEGOTIATIONS BEGUN WITH PETITIONER
ON JUNE 7TH AND CONCLUDED ON JUNE 9TH BEFORE THEY HAD REPUDIATED THE
UNION; THAT PETITIONER'S DETERMINATION TO INCREASE WAGES WAS
"OCCASIONED SOLELY BY THE EMPLOYEES' OFFER TO WITHDRAW FROM THE UNION
IF THE RAISES WERE GRANTED"; AND THAT THE EMPLOYEES' DEFECTION FROM THE
UNION WAS INDUCED BY PETITIONER'S CONDUCT IN DEALING DIRECTLY WITH THE
EMPLOYEES.  FN1 

IN SUSTAINING THE BOARD'S ORDER THE COURT OF APPEALS ASSUMED THAT AS
THERE HAD BEEN NO ELECTION OR CERTIFICATION OF THE UNION AS THEIR
BARGAINING REPRESENTATIVE, THE EMPLOYEES WERE FREE TO REVOKE THEIR
DESIGNATION OF IT AND TO NEGOTIATE DIRECTLY WITH THE EMPLOYER FOR AN
INCREASE IN WAGES, WITHOUT THE INTERVENTION OF THE UNION.  BUT IT
THOUGHT THAT IF SUCH A PROPOSAL CAME FROM THE EMPLOYER, IT WOULD BE A
FORBIDDEN INTERFERENCE WITH THE COLLECTIVE BARGAINING PROCESS AND IT
CONCLUDED THAT, IN VIEW OF THE DIFFICULTIES OF DETERMINING WHETHER IN
FACT SUCH AN OFFER, OSTENSIBLY COMING FROM THE EMPLOYEES, WAS INDUCED
BY THE EMPLOYER, THE BOARD COULD CONCLUDE THAT THE MERE ACCEPTANCE BY
THE EMPLOYER OF THE EMPLOYEES' OFFER WAS AN UNFAIR LABOR PRACTICE.  A
CONCURRING JUDGE THOUGHT THAT THE CASE WAS STRIPPED OF ANY INTIMATION
OF EMPLOYER CONTROL BUT THAT THE BOARD'S ORDER SHOULD BE SUSTAINED ON
THE GROUND THAT IT WAS AN UNFAIR LABOR PRACTICE FOR THE EMPLOYER TO
BARGAIN WITH THE EMPLOYEES WHEN THEIR REVOCATION OF THE UNION'S
AUTHORITY WAS MADE CONDITIONAL UPON THE MAJORITY'S AGREEMENT TO ABANDON
COLLECTIVE BARGAINING ALTOGETHER, EVEN FOR AN UNSPECIFIED TIME. 

WE THINK IT PLAIN THAT THE FINDINGS OF THE BOARD DO NOT ADMIT OF
EITHER OF THESE DISPOSITIONS OF THE CASE.  WHILE THE NEGOTIATIONS OF
PETITIONER WITH THE EMPLOYEES RESULTED IN A WAGE INCREASE AND THEIR
ABANDONMENT OF THE UNION, THE NEGOTIATIONS WERE CARRIED ON BY CERTAIN
OF THE EMPLOYEES PURPORTING TO ACT IN BEHALF OF AND TO REPRESENT A
MAJORITY.  NOTHING APPEARS WHICH WOULD SUGGEST, AS THE CONCURRING JUDGE
THOUGHT, THAT ANY OF THE EMPLOYEES DURING OR AS A RESULT OF THE
NEGOTIATIONS HAD BY AGREEMENT OR OTHERWISE FORECLOSED THEMSELVES FROM
CONTINUING SUCH BARGAINING THROUGH THE SAME OR ANY OTHER
REPRESENTATIVES WHOM THEY MIGHT CHOOSE.  NOR IN THE CIRCUMSTANCES
DISCLOSED BY THE EVIDENCE AND THE BOARD'S FINDINGS CAN WE SAY THAT IT
WAS OF ANY SIGNIFICANCE WHETHER, AS THE COURT OF APPEALS THOUGHT, THE
EMPLOYEES' OFFER TO ABANDON THE UNION ORIGINATED WITH THEM OR WAS
INSPIRED BY THE EMPLOYER.  FOR IN EITHER CASE, AS WILL PRESENTLY
APPEAR, WE THINK THAT THE NEGOTIATIONS BY PETITIONER FOR WAGE INCREASES
WITH ANY ONE OTHER THAN THE UNION, THE DESIGNATED REPRESENTATIVE OF THE
EMPLOYEES, WAS AN UNFAIR LABOR PRACTICE.  WE THINK THAT THE BOARD'S
ORDER SHOULD HAVE BEEN ENFORCED FOR THE REASONS STATED BY IT. 

THE PETITION FOR CERTIORARI DOES NOT CHALLENGE THE BOARD'S FINDINGS
THAT THE UNION REPRESENTED A MAJORITY OF THE EMPLOYEES IN PETITIONER'S
SHIPPING DEPARTMENT, AND THAT THEY CONSTITUTED A PROPER BARGAINING UNIT
AND THAT PETITIONER HAD AGREED TO BARGAIN WITH THE UNION.  THE EVIDENCE
SHOWS AND THE BOARD FOUND THAT WHEN THE EMPLOYEES OPENED THEIR
NEGOTIATIONS WITH PETITIONER'S MANAGER ON JUNE 7TH, THEY HAD NOT
REPUDIATED THE UNION.  ON THE CONTRARY THEY MADE IT PLAIN THAT THEIR
PROPOSAL FOR ITS ABANDONMENT WAS CONTINGENT UPON PETITIONER'S
WILLINGNESS TO GIVE THE DESIRED WAGE INCREASES.  THE EVIDENCE ALSO
SHOWS, AS THE BOARD FOUND, THAT THE EMPLOYEES DID NOT WITHDRAW THEIR
DESIGNATION OF THE UNION AS THEIR BARGAINING REPRESENTATIVE UNTIL AFTER
THEY HAD VOTED TO ACCEPT THE WAGE INCREASES, AND THAT UNTIL THEN, THEY
HAD HELD THEMSELVES OUT AS UNION MEMBERS THROUGHOUT THEIR NEGOTIATIONS
WITH PETITIONER AND ITS REPRESENTATIVES. 

THE NATIONAL LABOR RELATIONS ACT MAKES IT THE DUTY OF THE EMPLOYER TO
BARGAIN COLLECTIVELY WITH THE CHOSEN REPRESENTATIVES OF HIS EMPLOYEES. 
THE OBLIGATION BEING EXCLUSIVE, SEE SEC. 9(A) OF THE ACT, 29 U.S.C.
SEC. 159(A), IT EXACTS "THE NEGATIVE DUTY TO TREAT WITH NO OTHER." 
LABOR BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1, 44; AND SEE
VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 548-549. 
PETITIONER, BY IGNORING THE UNION AS THE EMPLOYEES' EXCLUSIVE
BARGAINING REPRESENTATIVE, BY NEGOTIATING WITH ITS EMPLOYEES CONCERNING
WAGES AT A TIME WHEN WAGE NEGOTIATIONS WITH THE UNION WERE PENDING, AND
BY INDUCING ITS EMPLOYEES TO ABANDON THE UNION BY PROMISING THEM HIGHER
WAGES, VIOLATED SEC. 8(1) OF THE ACT, WHICH FORBIDS INTERFERENCE WITH
THE RIGHT OF EMPLOYEES TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES
OF THEIR OWN CHOICE. 

THAT IT IS A VIOLATION OF THE ESSENTIAL PRINCIPLE OF COLLECTIVE
BARGAINING AND AN INFRINGEMENT OF THE ACT FOR THE EMPLOYER TO DISREGARD
THE BARGAINING REPRESENTATIVE BY NEGOTIATING WITH INDIVIDUAL EMPLOYEES,
WHETHER A MAJORITY OR A MINORITY, WITH RESPECT TO WAGES, HOURS AND
WORKING CONDITIONS WAS RECOGNIZED BY THIS COURT IN J.I. CASE CO. V.
LABOR BOARD, 321 U.S. 332; CF. ORDER OF RAILROAD TELEGRAPHERS V.
RAILWAY EXPRESS AGENCY, 321 U.S. 342; SEE ALSO NATIONAL LICORICE CO. V.
LABOR BOARD, 309 U.S. 350, 359-361.  THE STATUTE GUARANTEES TO ALL
EMPLOYEES THE RIGHT TO BARGAIN COLLECTIVELY THROUGH THEIR CHOSEN
REPRESENTATIVES.  BARGAINING CARRIED ON BY THE EMPLOYER DIRECTLY WITH
THE EMPLOYEES, WHETHER A MINORITY OR MAJORITY, WHO HAVE NOT REVOKED
THEIR DESIGNATION OF A BARGAINING AGENT, WOULD BE SUBVERSIVE OF THE
MODE OF COLLECTIVE BARGAINING WHICH THE STATUTE HAS ORDAINED, AS THE
BOARD, THE EXPERT BODY IN THIS FIELD, HAS FOUND.  SUCH CONDUCT IS
THEREFORE AN INTERFERENCE WITH THE RIGHTS GUARANTEED BY SEC. 7 AND A
VIOLATION OF SEC. 8(1) OF THE ACT.  FN2  THERE IS NO NECESSITY FOR US
TO DETERMINE THE EXTENT TO WHICH OR THE PERIODS FOR WHICH THE
EMPLOYEES, HAVING DESIGNATED A BARGAINING REPRESENTATIVE, MAY BE
FORECLOSED FROM REVOKING THEIR DESIGNATION, IF AT ALL, OR THE
FORMALITIES, IF ANY, NECESSARY FOR SUCH A REVOCATION.  COMPARE LABOR
BOARD V. CENTURY OXFORD MFG. CO., 140 F.2D 541, C.C.A.2D, DECIDED
FEBRUARY 15, 1944.  BUT ORDERLY COLLECTIVE BARGAINING REQUIRES THAT THE
EMPLOYER BE NOT PERMITTED TO GO BEHIND THE DESIGNATED REPRESENTATIVES,
IN ORDER TO BARGAIN WITH THE EMPLOYEES THEMSELVES, PRIOR TO SUCH A
REVOCATION.  AND IT IS THE FACT HERE, AS FOUND BY THE BOARD, THAT THE
EMPLOYEES DID NOT REVOKE THEIR DESIGNATION OF THE UNION AS THEIR
BARGAINING AGENT AT ANY TIME WHILE THEY WERE THEMSELVES NEGOTIATING
WITH PETITIONER, AND THAT THEY LEFT THE UNION, AS THEY HAD PROMISED
PETITIONER TO DO, ONLY WHEN PETITIONER HAD AGREED TO GIVE THEM
INCREASED WAGES. 

QUITE APART FROM THE BOARD'S FINDING OF AN UNFAIR LABOR PRACTICE IN
PETITIONER'S DIRECT NEGOTIATIONS WITH ITS EMPLOYEES WHEN THEY HAD NOT
REVOKED THEIR DESIGNATION OF THE UNION, THERE CAN BE NO QUESTION BUT
THAT IT WAS LIKEWISE AN UNFAIR LABOR PRACTICE FOR PETITIONER, IN
RESPONSE TO THE OFFER OF ITS EMPLOYEES, TO INDUCE THEM BY THE GRANT OF
WAGE INCREASES, TO LEAVE THE UNION.  FN3  LABOR BOARD V. FALK CORP.,
308 U.S. 453, 460-461.  THIS VIOLATION OF SEC. 8(1) WAS IN ITSELF
SUFFICIENT TO SUPPORT THE BOARD'S ORDER TO CEASE AND DESIST.  THE WORDS
AND PURPOSE OF SECS. 7 AND 8(1) OF THE ACT ENJOIN AN EMPLOYER FROM
INTERFERING WITH, OR COERCING, ITS EMPLOYEES IN THEIR RIGHTS TO SELF
ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, AND TO
BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING. 
THERE COULD BE NO MORE OBVIOUS WAY OF INTERFERING WITH THESE RIGHTS OF
EMPLOYEES THAN BY GRANTS OF WAGE INCREASES UPON THE UNDERSTANDING THAT
THEY WOULD LEAVE THE UNION IN RETURN.  THE ACTION OF EMPLOYEES WITH
RESPECT TO THE CHOICE OF THEIR BARGAINING AGENTS MAY BE INDUCED BY
FAVORS BESTOWED BY THE EMPLOYER AS WELL AS BY HIS THREATS OR
DOMINATION.  INTERNATIONAL ASSOCIATION OF MACHINISTS V. LABOR BOARD,
311 U.S. 72; LABOR BOARD V. FALK CORP., SUPRA; LABOR BOARD V.
PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, 266-268. 

PETITIONER CONTENDS THAT IT WOULD BE EQUALLY AN UNFAIR LABOR PRACTICE
TO REFUSE THE WAGE INCREASES AS TO GRANT THEM, FOR THAT WOULD INFLUENCE
THE EMPLOYEES TO STAY IN THE UNION, INSTEAD OF ABANDONING IT.  BUT
EITHER CONSEQUENCE, AS WELL AS ANY VIOLATION OF THE ACT, WOULD IN THIS
CASE HAVE BEEN AVOIDED IF THE EMPLOYER, AS IS ITS STATUTORY DUTY, HAD
REFUSED TO NEGOTIATE WITH ANY ONE OTHER THAN THE DULY DESIGNATED
BARGAINING REPRESENTATIVE OF HIS EMPLOYEES.  WE ARE NOT NOW CONCERNED
WITH THE QUESTION WHETHER, IN OTHER CIRCUMSTANCES, SUCH ACTION WOULD
HAVE BEEN AN UNFAIR LABOR PRACTICE.  NOR DOES THAT POSSIBILITY RELIEVE
PETITIONER OF THE CONSEQUENCES OF ITS UNFAIR LABOR PRACTICES WHICH THE
BOARD HAS FOUND.    PETITIONER WAS NOT RELIEVED FROM ITS OBLIGATIONS
BECAUSE THE EMPLOYEES ASKED THAT THEY BE DISREGARDED.  THE STATUTE WAS
ENACTED IN THE PUBLIC INTEREST FOR THE PROTECTION OF THE EMPLOYEES'
RIGHT TO COLLECTIVE BARGAINING AND IT MAY NOT BE IGNORED BY THE
EMPLOYER, EVEN THOUGH THE EMPLOYEES CONSENT, LABOR BOARD V. NEWPORT
NEWS CO., 308 U.S. 241, 251, OR THE EMPLOYEES SUGGEST THE CONDUCT FOUND
TO BE AN UNFAIR LABOR PRACTICE, NATIONAL LICORICE CO. V. LABOR BOARD,
SUPRA, 353, AT LEAST WHERE THE EMPLOYER IS IN A POSITION TO SECURE ANY
ADVANTAGE FROM THESE PRACTICES, H.J. HEINZ CO. V. LABOR BOARD, 311 U.S.
514, 519-521, AND CASES CITED.    PETITIONER CANNOT, AS JUSTIFICATION
FOR ITS REFUSAL TO BARGAIN WITH THE UNION, SET UP THE DEFECTION OF
UNION MEMBERS WHICH IT HAD INDUCED BY UNFAIR LABOR PRACTICES, EVEN
THOUGH THE RESULT WAS THAT THE UNION NO LONGER HAD THE SUPPORT OF A
MAJORITY.  IT CANNOT THUS, BY ITS OWN ACTION, DISESTABLISH THE UNION AS
THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES, PREVIOUSLY DESIGNATED
AS SUCH OF THEIR OWN FREE WILL.  LABOR BOARD V. BRADFORD DYEING ASSN.,
310 U.S. 318, 339-340; INTERNATIONAL ASSN. OF MACHINISTS V. LABOR
BOARD, SUPRA, 82; CF. NATIONAL LICORICE CO. V. LABOR BOARD, SUPRA,
359.  PETITIONER'S REFUSAL TO BARGAIN UNDER THOSE CIRCUMSTANCES WAS BUT
AN AGGRAVATION OF ITS UNFAIR LABOR PRACTICE IN DESTROYING THE
MAJORITY'S SUPPORT OF THE UNION, AND WAS A VIOLATION OF SECS. 8(1) AND
(5) OF THE ACT. 

THE BOARD RIGHTLY DETERMINED THAT PETITIONER HAD ENGAGED IN THE
UNFAIR LABOR PRACTICES WHICH THE BOARD FOUND, AND THIS DETERMINATION
SUPPORTS ITS ORDER DIRECTING THE CESSATION OF THOSE PRACTICES.  THE
PETITION FOR CERTIORARI HAS RAISED NO QUESTION AS TO THE PROPRIETY OF
THE BOARD'S ORDER DIRECTING PETITIONER TO BARGAIN WITH THE UNION, WHICH
WAS ALSO SUSTAINED AND ORDERED ENFORCED BY THE COURT OF APPEALS.  WE
THEREFORE HAVE NO OCCASION TO CONSIDER THAT PART OF THE ORDER HERE. 
COMPARE FRANKS BROS. CO. V. LABOR BOARD, POST, P. 702.  AFFIRMED. 

FN1  IT HAS NOW LONG BEEN SETTLED THAT FINDINGS OF THE BOARD, AS WITH
THOSE OF OTHER ADMINISTRATIVE AGENCIES, ARE CONCLUSIVE UPON REVIEWING
COURTS WHEN SUPPORTED BY EVIDENCE, THAT THE WEIGHING OF CONFLICTING
EVIDENCE IS FOR THE BOARD AND NOT FOR THE COURTS, THAT THE INFERENCES
FROM THE EVIDENCE ARE TO BE DRAWN BY THE BOARD AND NOT BY THE COURTS,
SAVE ONLY AS QUESTIONS OF LAW ARE RAISED AND THAT UPON SUCH QUESTIONS
OF LAW, THE EXPERIENCED JUDGMENT OF THE BOARD IS ENTITLED TO GREAT
WEIGHT.  SEE FRANKS BROS. CO. V. LABOR BOARD, POST, P. 702; LABOR BOARD
V. SOUTHERN BELL CO., 319 U.S. 50, 60, AND CASES CITED; LABOR BOARD V.
NEVADA COPPER CO., 316 U.S. 105, 106-107, AND CASES CITED; CF. DOBSON
V. COMMISSIONER, 320 U.S. 489, 501, AND CASES CITED. 

FN2  THAT THE ACT "CARRIES THE CLEAR IMPLICATION THAT EMPLOYERS SHALL
NOT INTERFERE" WITH THE RIGHT OF COLLECTIVE BARGAINING "BY BARGAINING
WITH INDIVIDUALS OR MINORITY GROUPS IN THEIR OWN BEHALF, AFTER
REPRESENTATIVES HAVE BEEN PICKED BY THE MAJORITY TO REPRESENT ALL," WAS
RECOGNIZED BY THE REPORTS OF THE CONGRESSIONAL COMMITTEES RECOMMENDING
THE ADOPTION OF THE BILL WHICH BECAME THE NATIONAL LABOR RELATIONS
ACT.  SEN. REP. NO. 573, 74TH CONG., 1ST SESS., P. 13; H. REP. NO.
1147, 74TH CONG., 1ST SESS., P. 20. 

FN3  WE FIND NO EVIDENCE IN THE RECORD THAT PETITIONER'S
REPRESENTATIVES STATED TO THE EMPLOYEES EITHER IN TERMS OR IN
SUBSTANCE, "WE WILL GIVE YOU THE (WAGE) INCREASES AND YOU CAN DO AS YOU
PLEASE ABOUT THE UNION."  FROM THE EVIDENCE, WHICH FULLY SUPPORTS THE
FINDINGS, IT APPEARS THAT THE EMPLOYEES PROPOSED TO PETITIONER'S
MANAGER ON JUNE 7TH THAT THEY WOULD LEAVE THE UNION IF THEY WERE GIVEN
WAGE RAISES; THAT THE MANAGER ADJOURNED THE MEETING WITH THE EMPLOYEES
UNTIL JUNE 9TH IN ORDER TO CONSIDER THE SUGGESTED WAGE INCREASES WITH
PETITIONER'S PRESIDENT.  ON THAT DATE, AFTER CONSIDERING THE MATTER
WITH THE PRESIDENT, THE MANAGER ANNOUNCED TO THE EMPLOYEES THAT WAGE
INCREASES WOULD BE GIVEN, AND THIS WAS IMMEDIATELY FOLLOWED BY THE
EMPLOYEES' DESERTION OF THE UNION.  IT ALSO APPEARS THAT IT WAS
PETITIONER'S NORMAL PRACTICE TO GRANT WAGE INCREASES ONLY AT THE CLOSE
OF THE YEAR.  FROM THESE FACTS THE BOARD COULD CONCLUDE, AS IT DID,
THAT THE PURPOSE AND THE EFFECT OF THE WAGE INCREASES WAS TO INDUCE
PETITIONER'S EMPLOYEES TO LEAVE THE UNION. 

MR. JUSTICE ROBERTS DISSENTS. 

MR. JUSTICE RUTLEDGE, DISSENTING: 

I DISSENT.  THE STORY TOLD BY THIS RECORD IS NOT OF A DOMINATING OR
INTERMEDDLING EMPLOYER, INTERFERING WITH EMPLOYEES IN THEIR COLLECTIVE
BARGAINING ARRANGEMENTS OR ACTIVITIES.  IT IS RATHER OF ONE WHICH
SOUGHT TO DO NO MORE THAN MEET ITS EMPLOYEES' WISHES, FREELY FORMED AND
FREELY STATED; AND AT THE SAME TIME TO BE SURE IT WOULD DO NOTHING TO
VIOLATE THE LAW GOVERNING THEIR RELATIONS.  THE RECORD IS BARREN OF ANY
EVIDENCE OF TROUBLE OR REAL DISPUTE BETWEEN MEDO AND ITS EMPLOYEES, OF
HOSTILITY BY MEDO TO UNIONS OR EMPLOYEE ORGANIZATION, OR OF ANY REFUSAL
TO BARGAIN COLLECTIVELY AS THE STATUTE REQUIRES.  FN1  ON THE CONTRARY,
IT SHOWS WITHOUT CONTRADICTION THAT MEDO REGARDED THESE THINGS AS
WHOLLY FOR THE EMPLOYEES TO SETTLE AMONG THEMSELVES; THAT IT
SCRUPULOUSLY SOUGHT TO KEEP HANDS OFF; AND THAT IT WAS WILLING TO
BARGAIN WITH THEM BY WHATEVER AGENCY THEY MIGHT SELECT.  THESE
ATTITUDES WERE QUALIFIED ONLY BY THE COMPANY'S DESIRE TO BE SURE THAT
THE UNION WAS ENTITLED LEGALLY TO REPRESENT THE EMPLOYEES AND TO AVOID
BEING CAUGHT IN A POSSIBLE JURISDICTIONAL DISPUTE BETWEEN THE A.F. OF
L. AND THE C.I.O.  FN2 

THE BOARD HAS FOUND THAT MEDO WAS GUILTY OF UNFAIR LABOR PRACTICE IN
THREE RESPECTS:  (1) IN DEALING DIRECTLY WITH THE EMPLOYEES, RATHER
THAN THROUGH THE UNION, ON JUNE 7 AND 9; (2) IN REFUSING TO DEAL WITH
THE UNION; (3) IN GRANTING THE INCREASED WAGES SOUGHT BY THE
EMPLOYEES.  ON THE FACTS, (1) AND (2) COME TO THE SAME THING, THAT
BEFORE JUNE 7 THE UNION HAD ACQUIRED LEGAL STATUS AS EXCLUSIVE
BARGAINING AGENT, WHICH WAS EFFECTIVE TO REQUIRE MEDO TO DEAL ONLY WITH
IT, AND THAT THIS WAS NOT VALIDLY REVOKED THEN OR LATER.  THE SAME
THINGS ARE SUBSUMED BY (3), WHICH HOWEVER POSES THE FURTHER QUESTION
WHETHER GRANTING THE INCREASE IN ITSELF WAS AN UNLAWFUL INTERFERENCE. 
THE QUESTIONS THUS PRESENTED MAY BE PICTURED MORE ACCURATELY IN THE
LIGHT OF FURTHER FACTS. 

THERE IS NO EVIDENCE OF LABOR TROUBLE OR EMPLOYEE DISSATISFACTION
PRIOR TO MAY, 1941.  ON THE CONTRARY, FOR ALL THAT APPEARS, RELATIONS
WERE PEACEFUL AND HARMONIOUS.  DURING THAT SPRING THE A.F. OF L. FN3
PUT ON A CAMPAIGN TO ORGANIZE ALL PHOTOGRAPHIC SUPPLY STORES IN NEW
YORK.  IN MAY IT GOT AROUND TO MEDO.  THE COMPANY HAD ABOUT 70
EMPLOYEES.  OF THESE, ABOUT 25 OR 26(INCLUDING SOME SUPERVISORY
EMPLOYEES) WERE IN THE SHIPPING AND RECEIVING DEPARTMENT, DOING MANUAL
LABOR IN THE PLANT'S BASEMENT.  THE OTHERS WERE CLERICAL EMPLOYEES AND
SALESMEN, WORKING UPSTAIRS.  STOLTMAN, THE A.F. OF L. ORGANIZER,
STARTED OUT IN MAY TO ORGANIZE ALL OF MEDO'S EMPLOYEES IN A SINGLE
UNIT.  APPARENTLY HE WAS NOT SUCCESSFUL UPSTAIRS.  BUT BY MAY 23 HE HAD
SIGNED UP 18 OF THE DOWNSTAIRS MEN.  HE AND THEY THEN DECIDED TO LIMIT
THE UNIT TO THE BASEMENT, AND REQUESTED THE EMPLOYER TO NEGOTIATE.  AT
THE SAME TIME THE UNION APPLIED TO THE BOARD FOR CERTIFICATION.  THERE
WAS SOME SHORT DELAY, OWING TO THE ABSENCE OF MEDO'S PRESIDENT OVER THE
MEMORIAL DAY HOLIDAY.  BUT ON JUNE 4, AT THE BOARD'S ARRANGEMENT, THE
FIRST CONFERENCE CONCERNING RECOGNITION WAS HELD.  FN4 SEVERAL FOLLOWED
BETWEEN THAT TIME AND SATURDAY, JUNE 7, WHEN THE EMPLOYEES INTERVENED
FOR THEMSELVES. 

AT ALL TIMES MEDO SHOWED WILLINGNESS TO NEGOTIATE.  BUT IT ALSO
WISHED TO BE SURE, AS IT HAD BOTH THE RIGHT AND THE DUTY TO BE, THAT
THE UNIT WAS APPROPRIATE AND THE UNION HAD A MAJORITY OF THE
EMPLOYEES.  FN5  MEDO FURTHER WANTED TO KNOW SOMETHING ABOUT THE TERMS
THE UNION WOULD DEMAND, IF RECOGNIZED; NOT WISHING, AS IT SAID, TO "BUY
A PIG IN A POKE."  ALL OF THESE THINGS WERE MATTERS OF DISCUSSION
BETWEEN STOLTMAN AND VARIOUS COMPANY REPRESENTATIVES IN THE CONFERENCES
HELD ON JUNE 4 AND 5.  BUT IT WAS NOT UNTIL THE LATTER DATE THAT
STOLTMAN FINALLY SUBMITTED HIS SUBSTANTIVE DEMANDS TO MEDO THROUGH
SELIGSBERG, ITS ATTORNEY. 

THE BOARD'S FINDINGS, IN EFFECT, ARE THAT ON JUNE 5 SELIGSBERG, IN
THIS CONFERENCE WITH STOLTMAN, CONCEDED FINALLY ALL QUESTIONS OF
REPRESENTATION, THAT IS, OF APPROPRIATENESS OF THE UNIT AND THE UNION'S
MAJORITY STATUS.  HENCE IT CONCLUDED MEDO THEN RECOGNIZED THE UNION AS
COLLECTIVE AGENT AND, CONSEQUENTLY, THE ONLY THING REMAINING FOR
FURTHER DISCUSSION WAS THE TERMS OF THE COLLECTIVE AGREEMENT.  THIS
FINDING IS THE BASIS FOR THE BOARD'S CONCLUSION THAT MEDO WAS GUILTY OF
UNFAIR LABOR PRACTICES WHEN IT LATER DEALT DIRECTLY WITH THE EMPLOYEES
RATHER THAN THROUGH THE UNION.  MEDO, HOWEVER, SAYS THAT ALL THREE
QUESTIONS REMAINED OPEN FOR FINAL ACTION BY IT AT THE CONFERENCE
SCHEDULED FOR MONDAY, JUNE 9, BUT NOT HELD BECAUSE THE EMPLOYEES
INTERVENED DIRECTLY IN THEIR OWN BEHALF ON SATURDAY, JUNE 7.  FN6 

SELIGSBERG MADE PARTICULAR STATEMENTS IN HIS CONFERENCE WITH STOLTMAN
ON JUNE 5 WHICH, IF DISCONNECTED FROM THE CONTEXT OF THE WHOLE
CONVERSATION AND TREATED AS IN THEMSELVES STATING THE EMPLOYER'S ENTIRE
POSITION, COULD BE TAKEN AS INDICATING INTENTION TO CLOSE THE
DISCUSSION ON APPROPRIATENESS OF THE UNIT AND THE UNION'S MAJORITY
STATUS.  THESE STATEMENTS ARE THE BOARD'S ONLY FOUNDATION FOR FINDING
THAT MEDO AT ANY TIME CONCEDED RECOGNITION TO THE UNION WITH FINALITY. 
IN MY OPINION IT WOULD DO VIOLENCE TO THE FACTS TO REGARD THEM AS
SUFFICIENT TO SUSTAIN THESE FINDINGS.  THE EMPLOYER WAS ENTITLED TO A
REASONABLE TIME FOR ASCERTAINING THE UNION'S STATUS BEFORE DEALING WITH
IT  FN7  AND THIS HAD NOT EXPIRED ON JUNE 7 OR, FOR THAT MATTER, ON
JUNE 9.  FN8  PRIOR TO JUNE 5 ALL QUESTIONS WERE OPEN.  THE CONFERENCE
THEN WAS NOT BEGUN, CARRIED THROUGH OR CONCLUDED WITH ANY INTENTION OR
PURPOSE THAT UNDERSTANDINGS WHICH MIGHT BE REACHED WERE OR COULD BE
TAKEN TO BE FINAL.  MEDO'S REPRESENTATIVE WAS DOING A LAWYER'S JOB,
FN9  WHICH WAS TO SEE HOW FAR HE AND STOLTMAN COULD AGREE ON TERMS TO
BE CONSIDERED BY HIS CLIENT AS A BASIS FOR FINAL DECISION.  THEY HAD
BEEN SUCCESSFUL PREVIOUSLY IN BRINGING OTHER EMPLOYERS AND EMPLOYEES
TOGETHER IN MORE DIFFICULT DISPUTES AND THE WHOLE INTENT OF THEIR
CONFERENCE WAS TO FIND A BASIS OF POSSIBLE AGREEMENT UPON ALL MATTERS,
INCLUDING REPRESENTATION,  FN10  FOR CONSIDERATION BY MEDO FOR ITS
FINAL DECISION AND WITH A VIEW TO FURTHER DISCUSSION AND POSSIBLE FINAL
SETTLEMENT IN THE CONFERENCE AGREED UPON FOR JUNE 9.  TO TEAR
SELIGSBERG'S STATEMENTS OUT OF THIS SETTING AND CONTEXT AND MAKE OF
SUCH TENTATIVE UNDERSTANDINGS OR BASES OF FURTHER NEGOTIATION FINAL
CONCESSIONS OF RECOGNITION IS TO DRAW INFERENCES WHOLLY UNWARRANTED BY
THE RECORD.  IT IS THEREFORE NOT AT ALL CLEAR THAT ON JUNE 7
NEGOTIATIONS HAD PASSED BEYOND THE STAGE OF RECOGNITION OR,
CONSEQUENTLY, THAT THE UNION THEN WAS LEGALLY ENTITLED TO ACT AS
EXCLUSIVE BARGAINING AGENT. 

BUT EVEN ASSUMING THAT MEDO ON JUNE 5, THROUGH SELIGSBERG, CONCEDED
RECOGNITION, STILL I CANNOT AGREE THAT IT COMMITTED ANY UNFAIR LABOR
PRACTICE, UNDER THE FACTS SHOWN HERE, EITHER IN MERELY HEARING WHAT THE
EMPLOYEES HAD TO SAY OR, AFTER DECLINING TO BE DRAWN INTO DISCUSSION OF
THEIR RELATIONS WITH THE UNION,  FN11  IN GRANTING UNCONDITIONALLY
THEIR FREELY MADE AND WHOLLY UNCOERCED REQUEST FOR AN INCREASE IN
WAGES.  IN MY VIEW IT IS IMMATERIAL THAT THIS, IN EFFECT, SHORT
CIRCUITED THE UNION, FOR TWO REASONS.  ONE IS THAT, UNDER THE SPECIAL
CIRCUMSTANCES, THE EMPLOYEES HAD THE RIGHT TO REVOKE THE DESIGNATION
AND DID SO BY UNDERTAKING TO DEAL FOR THEMSELVES; THE OTHER, WHICH IS
PERHAPS BUT A DIFFERENT WAY OF STATING THE FIRST, IS THAT THE UNION
ITSELF HAD NO RIGHT OR INTEREST SUFFICIENT TO PREVENT THEM FROM DOING
SO. 

AT MOST THE EMPLOYER DID NOTHING MORE THAN ACCEDE TO THE WISHES OF A
CLEAR MAJORITY, BOTH IN LISTENING TO THEIR REQUEST AND IN GRANTING IT.
THERE IS NO CLAIM OR SEMBLANCE OF PROOF THAT MEDO INDUCED THE MEN TO
MAKE THE REQUEST.  ON THE CONTRARY, IT IS NOT DISPUTED THAT, WHEN THEY
ASKED FOR THE CONFERENCE ON JUNE 7, THE REQUEST CAME UNEXPECTEDLY TO
MEDO.  AND WHEN, AT THE START OF THE CONFERENCE THE MEN MENTIONED THE
UNION SITUATION, MEDO'S GENERAL MANAGER, HOPPIN, STATED AT ONCE AND
FLATLY THAT HE WOULD NOT DISCUSS THEIR UNION AFFAIRS OR RELATIONS WITH
THEM, CLEARLY IMPLYING THAT THIS WAS THEIR BUSINESS EXCLUSIVELY, NOT
THE COMPANY'S.  FN12  ASKED WHETHER HE WOULD DISCUSS OTHER MATTERS, HE
ANSWERED AFFIRMATIVELY.  THE MEN THEREUPON SAID THEY WANTED THE
INCREASE AND THERE IS SOME EVIDENCE THEY ALSO SAID UNCONDITIONALLY THAT
THEY DID NOT WANT THE UNION.  FN13  THE BOARD, HOWEVER, HAS FOUND THAT
THEY COUPLED THE TWO STATEMENTS CONDITIONALLY, NAMELY, THAT THEY DID
NOT WANT THE UNION, IF THEY COULD HAVE THE INCREASE WITHOUT IT. 

THE BOARD CONCLUDED THAT MEDO'S ACTION ON JUNE 9 IN GRANTING THE
INCREASES, THOUGH LESS THAN WHAT WERE REQUESTED, "CONSTITUTED
INTERFERENCE WITH THE SELF-ORGANIZATIONAL RIGHTS OF ITS EMPLOYEES," ON
THE THEORY THAT THIS INFLUENCED THEM TO ABANDON THE UNION.  IT ALSO
HELD THAT THE EMPLOYEES' ACTION IN APPROACHING THE COMPANY ON JUNE 7
DID NOT "CONSTITUTE AN IMPLIED REVOCATION OF THEIR DESIGNATION OF THE
UNION SO AS TO RELIEVE THE RESPONDENT OF THE OBLIGATION TO DEAL SOLELY
WITH IT," AND THEREFORE DEALING DIRECTLY WITH THEM WAS A VIOLATION OF
MEDO'S STATUTORY DUTY TO THE UNION AND AN UNFAIR LABOR PRACTICE.  THE
BOARD'S THEORY WAS, APPARENTLY, THAT THE MEN, TO REVOKE THEIR
DESIGNATION, WERE REQUIRED TO COMMUNICATE THE REVOCATION TO THE UNION
AND THAT THE UNION HAD ACQUIRED SUCH AN INTEREST OR STATUS NO OTHER ACT
COULD TERMINATE THE AGENCY, HOWEVER INCONSISTENT WITH ITS CONTINUED
EXISTENCE AND EXCLUSIVE CHARACTER.    THE STATUTE MAKES NO PROVISION
THAT THE AGENCY, ONCE CREATED, SHALL CONTINUE FOR ANY SPECIFIC TIME. 
IT PRESCRIBES NO PARTICULAR METHOD FOR TERMINATING, AS IT MAKES NONE
FOR CREATING,  FN14 THE AGENCY.  GREATER FORMALITY HARDLY WOULD SEEM TO
BE REQUIRED IN THE ONE CASE THAN IN THE OTHER.  THE STATUTE PURPORTS TO
BE DRAWN IN FAVOR OF PROTECTING THE INTERESTS OF EMPLOYEES, NOT THOSE
OF UNIONS AS SUCH.  FN15  TRUE, WHILE THE AGENCY EXISTS IT IS EXCLUSIVE
FOR ITS APPROPRIATE PURPOSES.  BUT IT IS SO ONLY WHILE IT DOES EXIST
AND THE QUESTION HERE IS WHETHER IT CONTINUED IN FORCE AFTER THE
EMPLOYEES TOOK MATTERS INTO THEIR OWN HANDS AND SHOWED TO THE EMPLOYER
BY THAT ACT THAT THEY WANTED TO DEAL FOR THEMSELVES, NOT THROUGH THE
UNION. 

THE BOARD IMPLIES AND THE COURT SAYS THE EMPLOYER SHOULD HAVE
DECLINED TO DISCUSS WITH THEM ANY MATTER WHICH WAS APPROPRIATE FOR
COLLECTIVE BARGAINING, SINCE THE UNION WAS THEIR AGENT FOR THIS
PURPOSE.  THEREFORE, IT IS CONCLUDED, THE EMPLOYER VIOLATED THEIR
RIGHTS UNDER THE STATUTE TO BARGAIN COLLECTIVELY.  THIS, ALTHOUGH IT IS
CONCEDED THE TWELVE EMPLOYEES SPOKE FOR 18 OF THE 25 OR 26 IN THE UNIT
AND IT DOES NOT APPEAR THAT WHAT THEY DID WAS DISAPPROVED OR REPUDIATED
BY THE OTHER SIX OR SEVEN.  MERELY TO STATE THIS PROPOSITION SHOULD BE
ENOUGH TO NEGATE IT.  FOR IT PRESERVES RIGHTS OF EMPLOYEES TO BARGAIN
BY REPRESENTATIVES OF THEIR OWN CHOOSING BY DESTROYING THEM.  IN ALL
NORMAL AGENCY RELATIONS, EXCEPT THOSE "COUPLED WITH AN INTEREST,"  FN16
THE PRINCIPAL CAN REVOKE THEM BY EXERCISING THE AGENCY HIMSELF.  FN17
HE NEED NOT NOTIFY THE AGENT.  WHEN HE ACTS ON HIS OWN BEHALF, HE
EXHAUSTS THE SUBJECT MATTER OF THE AGENCY AND IT COMES TO AN END. 

UNLESS A DESIGNATED UNION ACQUIRES, BY ITS SELECTION, A THRALDOM OVER
THE MEN WHO DESIGNATE IT ANALOGOUS TO THE POWER ACQUIRED BY ONE WHO HAS
A "POWER COUPLED WITH AN INTEREST," UNBREAKABLE AND IRREVOCABLE BY HIM
WHO GAVE IT, IT WOULD SEEM THAT ANY POWERS THE UNION MAY ACQUIRE BY
VIRTUE OF THE DESIGNATION WOULD END WHENEVER THOSE WHO CONFER THEM AND
ON WHOSE BEHALF THEY ARE TO BE EXERCISED TAKE THEM BACK OF THEIR OWN
ACCORD INTO THEIR OWN HANDS AND EXERCISE THEM FOR THEMSELVES.  AND THIS
SHOULD BE TRUE, WHETHER OR NOT PREVIOUS NOTICE IS GIVEN TO THE UNION
AND WHETHER OR NOT THE SUBJECT MATTER OF THE RESUMPTION MAY INCLUDE, AS
ONE CONSEQUENCE OF THE DEALING, THE POSSIBLE CONTINUANCE OF THE
AGENCY.  FOR IT IS THE VERY TAKING BACK OF THE RIGHT TO DEAL WITH THEIR
EMPLOYER, NOT WHAT HE DOES IN RESPONSE TO THIS, UNLESS THAT CREATES
SOME NEW PRESSURE OR INFLUENCE NOT CONTEMPLATED IN THE EMPLOYEES'
FREELY MADE PROPOSALS, THAT SHOWS THE INTENT TO DESTROY THE AGENCY. 
DEALING FOR THEMSELVES AND DEALING EXCLUSIVELY THROUGH THE AGENT CANNOT
COEXIST.  THE ONE WHOLLY EXCLUDES THE OTHER AND THE REAL QUESTION
BECOMES, WHICH IS TO PREVAIL, THE AGENT'S INTEREST AND RIGHT OR THE
PRINCIPAL'S, THE UNION'S OR THE EMPLOYEES'? 

I DO NOT THINK CONGRESS INTENDED, BY THIS LEGISLATION, TO CREATE
RIGHTS IN UNIONS OVERRIDING THOSE OF THE EMPLOYEES THEY REPRESENT. 
FN18  NOR DID IT REQUIRE A SPECIAL FORM OR MODE FOR ENDING A COLLECTIVE
AGENCY ANY MORE THAN FOR CREATING IT.  WHAT CONGRESS DID WAS TO GIVE
THE DESIGNATED UNION THE EXCLUSIVE RIGHT TO BARGAIN COLLECTIVELY AS
LONG AS, AND ONLY AS LONG AS, A MAJORITY OF THE EMPLOYEES OF THE UNIT
CONSENT TO ITS DOING SO.  WHEN THAT MAJORITY VANISHES BY THE EMPLOYEES'
VOLUNTARY ACTION, WHATEVER FORM THIS MAY TAKE, AND THE FACT IS MADE
UNMISTAKABLY CLEAR TO THE EMPLOYER, IT NOT ONLY IS NO LONGER UNDER DUTY
TO DEAL WITH THE UNION; IT COMES UNDER AFFIRMATIVE OBLIGATION NOT TO DO
SO.  FOR OTHERWISE IT WOULD BE DEALING WITH A REPRESENTATIVE NOT OF THE
EMPLOYEES' CHOICE. 

THERE ARE TWO POSSIBLY APPLICABLE LIMITATIONS.  ONE IS THAT THE
EMPLOYER MUST NOT INTERFERE TO BRING ABOUT THE ABANDONMENT.  THE OTHER
IS THAT, IN LARGE UNITS, WHERE THERE ARE DIFFICULT PROBLEMS OF
ASCERTAINING WHETHER A MAJORITY EXISTS AT A PARTICULAR TIME, A
REASONABLE DEGREE OF STABILITY IN EMPLOYMENT RELATIONS MAY REQUIRE, TO
GIVE THE STATUTE WORKABLE OPERATION, THAT A MAJORITY DESIGNATION BE
DEEMED TO CONTINUE FOR A REASONABLE PERIOD, THOUGH CHANGES MEANWHILE
MAY TAKE AWAY THE CLEARLY EXISTING MAJORITY, A QUESTION NOT YET FINALLY
DETERMINED.  FN19 

THE LATTER LIMITATION, IF IT IS ONE, CAN HAVE NO REASONABLE
APPLICATION TO A SMALL UNIT AND A SMALL EMPLOYER UNDER CIRCUMSTANCES
LIKE THOSE INVOLVED HERE.  IN SUCH A SITUATION TO IMPOSE IT, WHERE THE
ACTUAL DESIRES OF THE MAJORITY MAY BE EASILY AND READILY ASCERTAINED AT
ANY TIME, WOULD BE TO FORCE MEN INTO UNIONS AND INTO DEALING WITH THEIR
EMPLOYERS THROUGH UNIONS CONTRARY TO THE EMPLOYEES' OWN WISHES.  THE
STATUTE HAS NO SUCH PURPOSE. 

BUT IT IS SAID THE OTHER LIMITATION APPLIES HERE, THAT THE EMPLOYER
SHALL OFFER NO INDUCEMENT AND EXERT NO INFLUENCE TO SECURE
ABANDONMENT.  THIS, TOO, IS A SALUTARY PRINCIPLE WHEN PROPERLY
APPLIED.  AND IT MAY BE APPLIED AS WELL TO A SMALL UNIT AND A SMALL
EMPLOYER AS TO LARGE ONES.  BUT AGAIN THE LIMITATION IS NOT UNIVERSALLY
APPLICABLE.  WHETHER IT IS APPLICABLE OR NOT DEPENDS UPON WHAT THE
EMPLOYER DOES.  CLEARLY IF HE STIMULATES A PROPOSAL FROM THE EMPLOYEES
TO ABANDON THE UNION FOR ANY SUBSTANTIAL ADVANTAGE HE MAY GIVE, THE
LIMITATION SHOULD BE EFFECTIVE.  BUT DOES HE DO THIS WHEN, WITH NO
SUGGESTION OR INTIMATION ON HIS PART, WHEN RATHER HE HAS SHOWN EVERY
WILLINGNESS TO LEAVE THE WHOLE MATTER OF THEIR ORGANIZATION TO HIS
EMPLOYEES AND TO DEAL WITH THEM IN ANY WAY THEY WISH, THEY COME TO HIM,
WITHOUT INFLUENCE, WITHOUT COERCION, AND MAKE A PROPOSAL WHOLLY OF
THEIR OWN CONCEPTION AND DESIRE? 

IT IS NOT IMPOSSIBLE FOR MEN TO WANT WAGE INCREASES AND ALSO TO
REMAIN OR BECOME NONUNION MEN AT THE SAME TIME.  NOR IS SUCH A
COMBINATION OF DESIRES ILLEGAL.  WHEN SUCH A PROPOSAL IS THUS MADE, AND
THE EMPLOYER DOES NO MORE THAN WAS DONE HERE, NAMELY, ACCEDE TO IT,
KNOWING HE IS DEALING WITH A MAJORITY OF THE UNIT, SAYING IN EFFECT,
"WHETHER OR NOT YOU HAVE A UNION IS YOUR OWN BUSINESS, NOT MINE.  BUT
WHETHER YOU DO OR NOT, YOU GET THE INCREASE YOU WANT," THEN IN MY
JUDGMENT TWO THINGS HAVE HAPPENED:  (1) THE EMPLOYEES HAVE REVOKED THE
COLLECTIVE AGENCY, AS THEY HAVE A RIGHT TO DO; AND (2) THE EMPLOYER HAS
BEEN GUILTY OF NO UNFAIR LABOR PRACTICE EITHER IN HEARING THEIR
PROPOSAL OR IN ACCEDING TO IT.  HE HAS DONE NO MORE THAN COMPLY WITH
THE WISHES OF THE MAJORITY, FREELY FORMED AND FREELY STATED.  AND THIS
IT IS THE EMPLOYER'S DUTY TO DO UNDER THE STATUTE.  IF THEREBY THE
UNION HAS BEEN BY-PASSED, IT IS NOT THROUGH THE EMPLOYER'S ACTION, BUT
RATHER THROUGH THAT OF THE EMPLOYEES.  THE EMPLOYER'S RESPONSE, SO
LIMITED, IS NOT A VIOLATION OF THE PRINCIPLE, RECENTLY STATED HERE,
FN20  THAT INDIVIDUAL EMPLOYEES CANNOT DEAL WITH THE EMPLOYER TO CREATE
TERMS IN THE CONTRACT OF EMPLOYMENT INCONSISTENT WITH THE COLLECTIVE
AGREEMENT.  SUCH A SITUATION PRESENTS NO CASE OF INCONSISTENT
INDIVIDUAL BARGAINING.  IT INVOLVES RATHER ONE OF COLLECTIVE
BARGAINING, NOT BY INDIVIDUALS AS SUCH, BUT BY THE MAJORITY ON BEHALF
OF THE UNIT. 

FINALLY, IF MORE IS NEEDED, THE MATTER SHOULD BE CONSIDERED IN THE
LIGHT OF MEDO'S PREDICAMENT WHEN THE EMPLOYEES MADE THE PROPOSAL,
ACCOUNT BEING TAKEN OF THE ALTERNATIVE COURSES OPEN TO IT. UNDER THE
COURT'S RULING IT WAS BETWEEN THE DEVIL AND THE DEEP BLUE SEA.  THERE
WAS NO ANSWER MEDO COULD GIVE WHICH WOULD NOT LEAVE IT OPEN TO A CHARGE
AND A FINDING OF UNFAIR LABOR PRACTICE.  THE EMPLOYEES WANTED AN
INCREASE, ACCORDING TO THE FINDINGS, WITH THE UNION IF THEY COULD NOT
GET ONE WITHOUT IT; WITHOUT THE UNION, IF THEY COULD.  THE MAIN THING
IN THEIR MINDS WAS THE INCREASE, NOT THE UNION.  FN21  IN EFFECT,
ACCORDING TO THE FINDINGS, THEY SAID SO TO THEIR EMPLOYER.  IT HAD TO
KEEP SILENT OR REPLY.  IT COULD REPLY IN SEVERAL WAYS:  (1) THE UNION
IS YOUR EXCLUSIVE AGENT AND WE CANNOT DEAL WITH YOU WHILE IT IS SUCH;
(2) WE WILL GIVE YOU THE INCREASE IF YOU DISCHARGE THE UNION; DO THAT
AND THEN COME BACK; (3) WE WILL GIVE YOU THE INCREASE AND YOU CAN DO AS
YOU PLEASE ABOUT THE UNION; (4) WE WILL NOT GIVE THE RAISE, UNION OR NO
UNION. 

THE COURT SAYS THE COMPANY'S REPLY SHOULD HAVE BEEN (1), WHEREAS ITS
RESPONSE ACTUALLY WAS (3).  FN22  IT FINDS THE LATTER BAD BECAUSE IN
EFFECT IT OFFERED "INDUCEMENT" TO THE EMPLOYEES TO ABANDON THE UNION. 
THE TROUBLE IS THAT THE SAME THING WOULD HAVE BEEN TRUE OF (1) OR OF
ANY OF THE OTHER POSSIBLE REPLIES.  ANSWERS (2) AND (4) CLEARLY WOULD
CONSTITUTE UNFAIR LABOR PRACTICES, UNDER THE COURT'S VIEW, THE FORMER
AS OFFERING INDUCEMENT TO ABANDON, THE LATTER AS A FLAT REFUSAL TO
BARGAIN THROUGH THE UNION OR OTHERWISE.  ANSWER (1), WHILE PURPORTING
TO SAY ONLY THAT THE EMPLOYER COULD NOT DEAL WITH ANYONE AS LONG AS THE
UNION RETAINED ITS EXCLUSIVE AGENCY, IN FACT WOULD BE INFECTED WITH TWO
FAULTS.  ONE WOULD BE THE ASSUMPTION THAT THE EMPLOYEES COULD NOT
REVOKE THE AGENCY AND TAKE MATTERS BACK INTO THEIR OWN HANDS, WITHOUT
GIVING PRIOR NOTICE TO THE UNION, A QUESTION INVOLVED IN THE ISSUES
HERE.  BUT, EVEN MORE PLAINLY, BY MAKING THIS RESPONSE THE EMPLOYER
WOULD OPEN ITSELF TO THE CHARGE AND TO THE FINDING THAT IT HAD SAID, IN
EFFECT:  "WE CANNOT DEAL WITH YOU DIRECTLY WHILE THE UNION'S AGENCY
STANDS UNREVOKED," AND THEREBY HAD OFFERED, BY CLEAR IMPLICATION, THE
INDUCEMENT OF DEALING WITH THE EMPLOYEES DIRECTLY, CONDITIONED UPON
THEIR DISCHARGING THE UNION. 

THE ONLY OTHER ANSWERS OPEN TO THE EMPLOYER WERE (3), THE ONE MEDO
ACTUALLY MADE, AND TO REMAIN SILENT.  MERELY IGNORING THE EMPLOYEES
MIGHT HAVE BEEN TAKEN TO MEAN ANYTHING, BUT MORE PROBABLY ANSWER (4)
THAN ANY OTHER.  SILENCE THEREFORE AFFORDED NO ESCAPE FROM THE TRAP. 
NOR DOES THE ACT REQUIRE SILENCE IN SUCH A SITUATION.  CONSEQUENTLY
ANSWER (3), WHICH MEDO GAVE, WAS THE ONLY ONE IT COULD GIVE
CONSISTENTLY WITH THE VIEW THAT THE EMPLOYER SHOULD HOLD OUT NO
INDUCEMENT TO THE EMPLOYEES TO ABANDON THE UNION.  IN EFFECT IT SAID
SIMPLY, "WE ARE PERFECTLY WILLING YOU SHOULD HAVE THE INCREASE.  BUT
WHETHER YOU HAVE IT THROUGH THE UNION OR WITHOUT IT IS ENTIRELY YOUR
OWN BUSINESS AND WE WILL NOT HAVE ANYTHING TO DO WITH THIS."  ANY OTHER
REPLY WOULD HAVE BEEN A COUNTER-PROPOSAL OFFERING INDUCEMENT TO ABANDON
OR A REJECTION OF ALL BARGAINING.  THE ANSWER MEDO GAVE WAS NEITHER. 
IT WAS MERELY ACCESSION TO THE EMPLOYEES' WISHES, NOT "INDUCEMENT" OR
OFFER HELD OUT; AND IT WAS COUPLED WITH THE CLEAR INDICATION, UNDER THE
CIRCUMSTANCES, THAT WHAT THE EMPLOYEES MIGHT DO ABOUT THE UNION WAS
WHOLLY THEIR OWN AFFAIR AND NONE OF MEDO'S. 

ACCORDINGLY, I THINK MEDO GAVE THE ONLY POSSIBLE ANSWER CONSISTENT
WITH THE STATUTE'S REQUIREMENTS AND PURPOSES AND THE ONLY ONE WHICH
AFFORDED NO SUBSTANTIAL BASIS FOR FINDING EITHER THAT IT WAS REFUSING
TO BARGAIN COLLECTIVELY OR THAT IT WAS INTERFERING WITH THE EMPLOYEES'
RIGHTS OF ORGANIZATION BY OFFERING INDUCEMENT TO GET RID OF THE UNION. 
IN MY OPINION THE WAGNER ACT WAS NOT DESIGNED OR INTENDED TO PUT AN
EMPLOYER, WHOSE SOLE PURPOSE AND CONDUCT ARE TO GIVE HIS EMPLOYEES
COMPLETELY FREE REIN IN MATTERS OF ORGANIZATION AND COLLECTIVE
BARGAINING, ON SUCH A SPOT THAT ANYTHING HE MAY DO WILL BE, OR WILL
FORM THE BASIS FOR A FINDING THAT IT IS, AN UNFAIR LABOR PRACTICE.  SO
TO CONSTRUE THE ACT NOT ONLY WOULD MAKE IT A TRAP FOR EMPLOYERS, BUT
ALSO WOULD DEFEAT THE VERY PURPOSES THE STATUTE WAS INTENDED TO
ACCOMPLISH, BY FASTENING UPON EMPLOYERS AND EMPLOYEES ALIKE UNION
DOMINATION THE LATTER DO NOT WANT.  THIS WOULD BE TO DESTROY, NOT TO
SAFEGUARD, THE EMPLOYEES' BASIC RIGHT OF COLLECTIVE BARGAINING BY
REPRESENTATIVES OF THEIR OWN CHOOSING.  I WOULD REVERSE THE JUDGMENT
WITH INSTRUCTIONS TO DISMISS THE PETITION FOR ENFORCEMENT. 

FN1  THERE WAS NO REFUSAL TO BARGAIN WITH THE UNION UNTIL JUNE 9,
1941, AFTER THE EMPLOYER AND THE EMPLOYEES HAD REACHED A FULL
AGREEMENT.  CF. NOTE 6 INFRA. 

FN2  CF. NOTE 5 INFRA. 

FN3  ACTING THROUGH THE AMERICAN FEDERATION OF PHOTO EMPLOYEES UNION,
LOCAL 21314, OF WHICH STOLTMAN, CHIEF UNION FIGURE IN THIS CASE, WAS
PRESIDENT. 

FN4  THE BOARD'S PART IN BRINGING ABOUT THE CONFERENCE WAS DUE SOLELY
TO THE UNION'S HAVING APPLIED TO IT FOR CERTIFICATION SIMULTANEOUSLY
WITH THE MAKING OF ITS FIRST DEMAND UPON MEDO TO NEGOTIATE WITH IT, NOT
TO ANY REFUSAL BY MEDO TO NEGOTIATE CONCERNING RECOGNITION. 

FN5  IT FELT, AS STOLTMAN DID AT FIRST, THAT THERE SHOULD BE ONE UNIT
IN THE SMALL PLANT AND WAS FEARFUL OF BECOMING INVOLVED IN A
JURISDICTIONAL DISPUTE IF THE A.F. OF L. SHOULD ORGANIZE THE UNIT
DOWNSTAIRS AND THE C.I.O., WHICH WAS ACTIVELY ORGANIZING SUCH UNITS,
SHOULD COME IN AND ORGANIZE THE CLERICAL AND SALES EMPLOYEES WORKING
UPSTAIRS. 

THE UNION CLEARLY HAD A MAJORITY OF THE CLAIMED UNIT FROM MAY 23 TO
JUNE 7, SINCE 18 OF THE 25 OR 26 EMPLOYEES EMBRACED IN THE UNIT HAD
SIGNED MEMBERSHIP APPLICATION CARDS AND NONE HAD REVOKED HIS
APPLICATION OR MEMBERSHIP IN THAT PERIOD. 

THE COMPANY, HOWEVER, HAD TO TAKE STOLTMAN'S WORD FOR THIS.  IT ASKED
HIM FOR PROOF THAT HIS UNION REPRESENTED A MAJORITY, BUT HE DECLINED TO
SUBMIT IT, SAYING HE WOULD SUBMIT THE CARDS ONLY TO A BOARD
REPRESENTATIVE.  THE RECORD DOES NOT SHOW THAT MEDO EVER WAS GIVEN
PROOF THAT THE UNION HAD LINED UP ITS CLAIMED AND ACTUAL MAJORITY. 
THIS WAS ONE OF THE THINGS WHICH, IN MY OPINION, THE RECORD SHOWS WAS
HELD FOR DISCUSSION AND DETERMINATION AT THE CONFERENCE SCHEDULED FOR
JUNE 9.  CF. TEXT INFRA NOTES 6-10. 

FN6  IT IS UNDISPUTED THAT THE EMPLOYEES, ENTIRELY OF THEIR OWN
MOTION AND WITHOUT ANY STIMULUS OR SUGGESTION BY MEDO, ON SATURDAY
MORNING, JUNE 7, SOUGHT A CONFERENCE WITH MEDO'S OFFICIALS, WITHOUT
DISCLOSING THEIR PURPOSE.  THE REQUEST WAS GRANTED AND THE CONFERENCE
HELD SATURDAY AFTERNOON.  AS IT OPENED, ONE OF THE MEN MENTIONED THE
"UNION SITUATION."  BUT MEDO'S GENERAL MANAGER, HOPPIN, AT ONCE AND
FLATLY DECLINED TO DISCUSS THAT, SAYING HE WOULD DISCUSS ANYTHING
ELSE.  THE MEN THEN STATED THEIR DESIRE FOR AN INCREASE IN WAGES, AND
NOT TO HAVE THE UNION.  THEY SPECIFIED THE WAGES SOUGHT AND MEDO'S
REPLY, GRANTING THEM IN PART, WAS GIVEN THE FOLLOWING MONDAY MORNING,
JUNE 9.  ON MONDAY AFTERNOON THERE WAS ALSO A CONFERENCE WITH STOLTMAN,
BUT BECAUSE OF THE TURN EVENTS HAD TAKEN BY THE EMPLOYEES' INTERVENTION
IT SERVED ONLY AS THE OCCASION FOR NOTIFYING HIM THAT MEDO AND THE
EMPLOYEES HAD REACHED AGREEMENT AND THEREFORE THE COMPANY WOULD NOT
DEAL FURTHER WITH THE UNION.    FN7  CF., E.G., NORTH ELECTRIC MFG. CO.
V. LABOR BOARD, 123 F.2D 887(C.C.A.); TEXARKANA BUS CO. V. LABOR BOARD,
119 F.2D 480, 484(C.C.A.).  SEE ALSO LABOR BOARD V. UNION PACIFIC
STAGES, 99 F.2D 153, 158-159(C.C.A.). 

FN8  IT IS TO BE RECALLED THAT THE WHOLE PERIOD FROM DEMAND BY THE
UNION ON MEDO TO NEGOTIATE TO THE TIME THE EMPLOYEES INTERVENED
EXTENDED ONLY FROM MAY 23 TO JUNE 7, AND THAT THE PERIOD OF ACTIVE
NEGOTIATION BEGAN ON JUNE 4.  THREE DAYS, OR EVEN A LITTLE MORE THAN
TWO WEEKS, IS HARDLY TOO MUCH UNDER THE CIRCUMSTANCES HERE PRESENT TO
ALLOW AN EMPLOYER FOR DETERMINING WHETHER THE UNION MEETS THE STATUTE'S
REQUIREMENTS. 

FN9  SELIGSBERG'S TESTIMONY WAS:  "THAT WAS THE PURPOSE OF THE
POSTPONEMENT.  THEY WERE TO BRING US PROOF OF REPRESENTATION.  WE WERE
BOTH TO STUDY THE QUESTION OF UNIT, AND WE WERE TO STUDY IT - AND WHEN
I SAY 'WE,' I MEAN THE EMPLOYER, BECAUSE EXCEPT AS TO LANGUAGE, I
WOULDN'T KNOW ANYTHING ABOUT IT.  THEY WERE TO STUDY IT.  MR. HOPPIN
AND MR. GOODFIELD AND MR. NIEMEYER, IF HE WERE THERE - WHICH I DON'T
REMEMBER - WERE TO STUDY THE PROPOSED TERMS AND SEE HOW THEY COMPARED
WITH THE POSSIBILITIES."  SELIGSBERG CONSISTENTLY TESTIFIED THAT HE AND
STOLTMAN CONSIDERED "ALL THREE QUESTIONS TOGETHER, PROOF OF MAJORITY,
PROOF OF UNIT, AND THE CONTRACT."  HE WAS A DIRECTOR AND SECRETARY OF
THE COMPANY, BUT NOT A SHAREHOLDER. 

FN10 IN THE CONFERENCE SELIGSBERG RENEWED A PREVIOUS REQUEST FOR
PROOF THAT THE UNION HAD A MAJORITY AND CONDITIONED THE DISCUSSION UPON
THE COMPANY'S BEING SATISFIED IN THIS RESPECT AND THAT THE UNIT WAS
APPROPRIATE.  CF. NOTE 9 SUPRA.  HOWEVER, STOLTMAN AGAIN REFUSED TO
EXHIBIT THE CARDS AND RENEWED HIS OFFER ONLY TO SUBMIT THEM TO A BOARD
REPRESENTATIVE FOR COMPARISON WITH MEDO'S PAYROLL.  THE RECORD DOES NOT
SHOW THIS WAS EVER DONE, ALTHOUGH IN MY OPINION, CONTRARY TO THE
BOARD'S FINDINGS, IT DOES SHOW CONCLUSIVELY THAT THE PARTIES
CONTEMPLATED IT WOULD BE DONE AND THAT THE RESULT OF THE COMPARISON
WOULD BE GIVEN TO MEDO BEFORE THE NEGOTIATIONS SHOULD BE CONCLUDED WITH
FINALITY OF RECOGNITION. 

FN11  CF. NOTE 6 SUPRA. 

FN12  CF. NOTE 6 SUPRA.  HOPPIN'S TESTIMONY WAS IN RESPONSE TO THE
QUESTION "WHAT HAPPENED AFTER THEY CAME TO YOUR OFFICE?"  (ON SATURDAY
AFTERNOON):  "THEY CAME UP AND SAID THAT, 'WE HAVE DECIDED THAT WE
DON'T WANT TO HAVE ANYTHING TO DO WITH THE UNION.'  I IMMEDIATELY
STOPPED THEM, AND I TOLD THEM THAT IF THERE WAS ANYTHING AT ALL
PERTAINING TO ANY UNION ACTIVITIES, I DID NOT WANT TO LISTEN TO THEM AT
ALL, BUT IF IT WAS ANYTHING ELSE THEY HAD TO OFFER, I WOULD BE WILLING
TO LISTEN TO THEM." 

FN13  HOPPIN TESTIFIED HE WAS TOLD:  "WE HAVE ONE THING THAT WE ARE
PRIMARILY INTERESTED IN. THE WORKING CONDITIONS HERE ARE EXCELLENT.  WE
ARE VERY HAPPY WITH OUR JOBS, BUT WE WOULD LIKE TO GET MORE MONEY." 

FN14  CF. LEBANON STEEL FOUNDRY V. LABOR BOARD, 130 F.2D 404(APP. 
D.C.). 

FN15  WHATEVER JUSTICIABLE "INTEREST" THE UNION MAY HAVE IN
CONTINUING TO ACT AS THE EMPLOYEES' REPRESENTATIVE, ITS STATUS AS SUCH
IS FOR THE PRINCIPAL'S BENEFIT, NOT ITS OWN, AND IS TERMINABLE AT THE
FORMER'S WILL.  CF. CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S.
197, 237; LABOR BOARD V. SANDS MFG. CO., 306 U.S. 332, 344; LABOR BOARD
V. FANSTEEL METALLURGICAL CORP., 306 U.S. 240, 261-262; LABOR BOARD V.
REMINGTON RAND, 94 F.2D 862, 869-870(C.C.A.); LABOR BOARD V. LION SHOE
CO., 97 F.2D 448. 

FN16  SEE, E.G., HUNT V. ROUSMANIER'S ADMINISTRATORS, 8 WHEAT.  174;
LANE MORTGAGE CO. V. CRENSHAW, 93 CAL. APP. 411, 269 P. 672; HALL V.
BLISS, 118 MASS. 554; NOTE (1930) 39 YALE L.J. 110. 

FN17  SEE, E.G., AHERN V. BAKER, 34 MINN. 98, 24 N.W. 341; MOTT V.
FERGUSON, 92 MINN. 201, 99 N.W. 804; WHITE & HOSKINS V. BENTON, 121
IOWA 354, 96 N.W. 876; GILBERT V. HOLMES, 64 ILL. 548. 

FN18  CF. NOTE 15 SUPRA. 

FN19  CF. LABOR BOARD V. CENTURY OXFORD MFG. CORP., 140 F.2D
541(C.C.A.). 

FN20  J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332; ORDER OF RAILROAD
TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, 321 U.S. 342. 

FN21  CF. NOTE 13 SUPRA. 

FN22  THAT THIS IS THE FAIR MEANING OF MEDO'S RESPONSE IS CLEAR FROM
ITS REFUSAL TO DISCUSS OR INTERFERE IN THE EMPLOYEES' UNION ACTIVITIES,
CF. NOTE 12 SUPRA.
..END :



FRANKS BROS. CO. V. LABOR BOARD, 321 U.S. 702 


NO. 521.  ARGUED MARCH 2, 27, 1944.  - DECIDED APRIL 10, 1944.  - 137
F.2D 989, AFFIRMED. 


1.  THE NATIONAL LABOR RELATIONS BOARD ACTED WITHIN ITS STATUTORY
AUTHORITY IN ORDERING PETITIONER TO BARGAIN COLLECTIVELY WITH A UNION
WHICH HAD LOST ITS MAJORITY AFTER PETITIONER HAD WRONGFULLY REFUSED TO
BARGAIN WITH IT.  29 U.S.C. SEC. 160(A), (C).  P. 703. 

2.  IT IS FOR THE BOARD, NOT THE COURTS, TO DETERMINE HOW THE EFFECT
OF PRIOR UNFAIR LABOR PRACTICES MAY BE EXPUNGED.  P. 704. 

FRANKS BROS. CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 320 U.S. 734, TO REVIEW A DECREE DIRECTING COMPLIANCE
WITH AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 44 N.L.R.B. 898,
917. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE SINGLE QUESTION PRESENTED IS WHETHER THE NATIONAL LABOR RELATIONS
BOARD ACTED WITHIN ITS STATUTORY AUTHORITY IN ORDERING PETITIONER TO
BARGAIN COLLECTIVELY WITH A UNION WHICH HAD LOST ITS MAJORITY AFTER
PETITIONER WRONGFULLY HAD REFUSED TO BARGAIN WITH IT. 

IN JUNE 1941 FORTY-FIVE OF THE EIGHTY PRODUCTION AND MAINTENANCE
EMPLOYEES IN PETITIONER'S CLOTHING FACTORY DESIGNATED THE AMALGAMATED
CLOTHING WORKERS OF AMERICA AS THEIR BARGAINING REPRESENTATIVE. 
ATTEMPTS OF THE UNION TO NEGOTIATE WITH PETITIONER PROVED UNSUCCESSFUL
BECAUSE OF THE LATTER'S REFUSAL TO BARGAIN, AND THE UNION FILED WITH
THE BOARD A PETITION FOR AN INVESTIGATION AND CERTIFICATION OF
REPRESENTATIVES.  A CONSENT ELECTION WAS SCHEDULED FOR JULY 25, AND
NOTICES POSTED.  BEFORE THE ELECTION WAS HELD, PETITIONER CONDUCTED AN
AGGRESSIVE CAMPAIGN AGAINST THE UNION, EVEN TO THE EXTENT OF
THREATENING TO CLOSE ITS FACTORY IF THE UNION WON THE ELECTION. 
THEREUPON THE UNION WITHDREW ITS PETITION FOR AN ELECTION, AND FILED
CHARGES WITH THE BOARD ALLEGING THAT PETITIONER HAD ENGAGED IN UNFAIR
LABOR PRACTICES. 

IN THE FOLLOWING MONTHS VARIOUS CONFERENCES WERE HELD AND
CORRESPONDENCE EXCHANGED BETWEEN PETITIONER AND THE BOARD IN AN
UNSUCCESSFUL EFFORT TO PERSUADE THE PETITIONER TO CEASE OPPOSITION TO
THE UNION.  FINALLY ON MARCH 2, 1942, THE BOARD ISSUED A COMPLAINT
AGAINST PETITIONER.  HEARINGS ON THE COMPLAINT WERE CONDUCTED AT
LENGTH, AND IN OCTOBER 1942 A FINAL ORDER WAS ENTERED.  THE FINDING OF
THE BOARD, NOT HERE CHALLENGED, WAS THAT THE FOREGOING CONDUCT OF
PETITIONER, TOGETHER WITH RELATED CONDUCT UNNECESSARY TO BE DETAILED,
CONSTITUTED UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SEC. 8(1) AND
(5) OF THE NATIONAL LABOR RELATIONS ACT; 49 STAT. 449, 452, 453; 29
U.S.C. SEC. 158(1) AND (5). 

IN REACHING ITS CONCLUSION AS TO THE APPROPRIATE REMEDY FOR THESE
UNFAIR PRACTICES, THE BOARD CONSIDERED PETITIONER'S CONTENTION THAT
DURING THE SEVEN-MONTH INTERVAL BETWEEN THE FILING OF THE CHARGES AND
THE ISSUANCE OF THE COMPLAINT, THIRTEEN OF THE UNION'S ORIGINAL MEMBERS
HAD BEEN REPLACED BY NEW EMPLOYEES IN THE NORMAL COURSE OF BUSINESS. 
THIS LEFT THE UNION WITH ONLY THIRTY-TWO OF THE EIGHTY-FIVE EMPLOYEES
THEN IN THE UNIT WHICH IT REPRESENTED, OR LESS THAN A MAJORITY.  BUT
THE BOARD FOUND THAT THE UNION'S LACK OF A MAJORITY WAS "NOT
DETERMINATIVE OF THE REMEDY TO BE ORDERED."  CITING MANY OF ITS
PREVIOUS DECISIONS INVOLVING SIMILAR SITUATIONS, THE BOARD CONCLUDED
THAT "THE ONLY MEANS BY WHICH A REFUSAL TO BARGAIN CAN BE REMEDIED IS
AN AFFIRMATIVE ORDER REQUIRING THE EMPLOYER TO BARGAIN WITH THE UNION
WHICH REPRESENTED A MAJORITY AT THE TIME THE UNFAIR LABOR PRACTICE WAS
COMMITTED."  44 N.L.R.B. 898, 917.  ACCORDINGLY, BECAUSE IT DEEMED SUCH
A PROVISION "NECESSARY TO EFFECTUATE THE POLICIES OF THE ACT," THE
BOARD INCLUDED IN ITS ORDER A REQUIREMENT THAT PETITIONER BARGAIN
COLLECTIVELY WITH THE UNION.  THE CIRCUIT COURT OF APPEALS UPHELD THE
BOARD, AND DIRECTED ENFORCEMENT OF THE ORDER.  137 F.2D 989.  TO
CONSIDER AN ALLEGED INCONSISTENCY BETWEEN THE CIRCUIT COURT'S DECISION
AND OUR DECISION IN LABOR BOARD V. FANSTEEL METALLURGICAL CORP., 306
U.S. 240, 261-262, WE BROUGHT THE CASE HERE FOR REVIEW.  320 U.S. 734. 

WE THINK THE DECISION OF THE CIRCUIT COURT CORRECT UNDER THE ACT AND
CONSISTENT WITH PAST DECISIONS OF THIS COURT.  LITTLE NEED BE ADDED TO
WHAT HAS BEEN SAID ON THIS SUBJECT IN OTHER CASES.  OUT OF ITS WIDE
EXPERIENCE, THE BOARD MANY TIMES HAS EXPRESSED THE VIEW THAT THE
UNLAWFUL REFUSAL OF AN EMPLOYER TO BARGAIN COLLECTIVELY WITH ITS
EMPLOYEES' CHOSEN REPRESENTATIVES DISRUPTS THE EMPLOYEES' MORALE,
DETERS THEIR ORGANIZATIONAL ACTIVITIES, AND DISCOURAGES THEIR
MEMBERSHIP IN UNIONS.  THE BOARD'S STUDY OF THIS PROBLEM HAS LED IT TO
CONCLUDE THAT, FOR THESE REASONS, A REQUIREMENT THAT UNION MEMBERSHIP
BE KEPT INTACT DURING DELAYS INCIDENT TO HEARINGS WOULD RESULT IN
PERMITTING EMPLOYERS TO PROFIT FROM THEIR OWN WRONGFUL REFUSAL TO
BARGAIN.  SEE, E.G., MATTER OF INLAND STEEL CO., 9 N.L.R.B. 783, 815
816; MATTER OF P. LORILLARD CO., 16 N.L.R.B. 684, 699-701.  ONE OF THE
CHIEF RESPONSIBILITIES OF THE BOARD IS TO DIRECT SUCH ACTION AS WILL
DISSIPATE THE UNWHOLESOME EFFECTS OF VIOLATIONS OF THE ACT.  SEE 29
U.S.C. SEC. 160(A) AND (C).  AND, "IT IS FOR THE BOARD, NOT THE COURTS,
TO DETERMINE HOW THE EFFECT OF PRIOR UNFAIR LABOR PRACTICES MAY BE
EXPUNGED."  INTERNATIONAL ASSOCIATION OF MACHINISTS V. LABOR BOARD, 311
U.S. 72, 82. 

THAT DETERMINATION THE BOARD HAS MADE IN THIS CASE AND IN SIMILAR
CASES BY ADOPTING A FORM OF REMEDY WHICH REQUIRES THAT AN EMPLOYER
BARGAIN EXCLUSIVELY WITH THE PARTICULAR UNION WHICH REPRESENTED A
MAJORITY OF THE EMPLOYEES AT THE TIME OF THE WRONGFUL REFUSAL TO
BARGAIN DESPITE THAT UNION'S SUBSEQUENT FAILURE TO RETAIN ITS
MAJORITY.  THE BOARD MIGHT WELL THINK THAT, WERE IT NOT TO ADOPT THIS
TYPE OF REMEDY, BUT INSTEAD ORDER ELECTIONS UPON EVERY CLAIM THAT A
SHIFT IN UNION MEMBERSHIP HAD OCCURRED DURING PROCEEDINGS OCCASIONED BY
AN EMPLOYER'S WRONGFUL REFUSAL TO BARGAIN, RECALCITRANT EMPLOYERS MIGHT
BE ABLE BY CONTINUED OPPOSITION TO UNION MEMBERSHIP INDEFINITELY TO
POSTPONE PERFORMANCE OF THEIR STATUTORY OBLIGATION.  IN THE BOARD'S
VIEW, PROCEDURAL DELAYS NECESSARY FAIRLY TO DETERMINE CHARGES OF UNFAIR
LABOR PRACTICES MIGHT IN THIS WAY BE MADE THE OCCASION FOR FURTHER
PROCEDURAL DELAYS IN CONNECTION WITH REPEATED REQUESTS FOR ELECTIONS,
THUS PROVIDING EMPLOYERS A CHANCE TO PROFIT FROM A STUBBORN REFUSAL TO
ABIDE BY THE LAW.  THAT THE BOARD WAS WITHIN ITS STATUTORY AUTHORITY IN
ADOPTING THE REMEDY WHICH IT HAS ADOPTED TO FORECLOSE THE PROBABILITY
OF SUCH FRUSTRATIONS OF THE ACT SEEMS TOO PLAIN FOR ANYTHING BUT
STATEMENT.  SEE 29 U.S.C. SEC. 160(A) AND (C). 

CONTRARY TO PETITIONER'S SUGGESTION, THIS REMEDY, AS EMBODIED IN A
BOARD ORDER, DOES NOT INVOLVE ANY INJUSTICE TO EMPLOYEES WHO MAY WISH
TO SUBSTITUTE FOR THE PARTICULAR UNION SOME OTHER BARGAINING AGENT OR
ARRANGEMENT.  FOR A BOARD ORDER WHICH REQUIRES AN EMPLOYER TO BARGAIN
WITH A DESIGNATED UNION IS NOT INTENDED TO FIX A PERMANENT BARGAINING
RELATIONSHIP WITHOUT REGARD TO NEW SITUATIONS THAT MAY DEVELOP.  SEE
GREAT SOUTHERN TRUCKING CO. V. LABOR BOARD, 139 F.2D 984, 987.  BUT, AS
THE REMEDY HERE IN QUESTION RECOGNIZES, A BARGAINING RELATIONSHIP ONCE
RIGHTFULLY ESTABLISHED MUST BE PERMITTED TO EXIST AND FUNCTION FOR A
REASONABLE PERIOD IN WHICH IT CAN BE GIVEN A FAIR CHANCE TO SUCCEED. 
SEE LABOR BOARD V. APPALACHIAN POWER CO., 140 F.2D 217, 220-222; LABOR
BOARD V. BOTANY WORSTED MILLS, 133 F.2D 876, 881-882.  AFTER SUCH A
REASONABLE PERIOD THE BOARD MAY, IN A PROPER PROCEEDING AND UPON A
PROPER SHOWING, TAKE STEPS IN RECOGNITION OF CHANGED SITUATIONS WHICH
MIGHT MAKE APPROPRIATE CHANGED BARGAINING RELATIONSHIPS.  ID.; SEE 29
U.S.C. SEC. 159(C). 

THAT ISSUANCE OF THE ORDER CHALLENGED BY PETITIONER LAY WITHIN THE
BOARD'S DISCRETION IS SETTLED BY OUR HOLDING IN LABOR BOARD V. P.
LORILLARD CO., 314 U.S. 512, 513.  THE LORILLARD CASE, ARGUES
PETITIONER, IS DISTINGUISHABLE BECAUSE IN THAT CASE THE COURT POINTED
TO THE FACT THAT, "THE BOARD HAD CONSIDERED THE EFFECT OF A POSSIBLE
SHIFT IN MEMBERSHIP.   ...  "  ID., 513.  BUT IN THIS CASE ALSO THE
BOARD CONSIDERED THE CHANGE IN MEMBERSHIP, AND IN ADDITION RELIED IN
PART UPON THE LORILLARD DECISION TO SUPPORT ITS ORDER.  WE FIND NO
POSSIBLE VALID DISTINCTION BETWEEN THIS AND THE LORILLARD CASE. 

NOR IS THE LORILLARD DECISION INCONSISTENT WITH THE EARLIER HOLDING
IN LABOR BOARD V. FANSTEEL METALLURGICAL CORP., 306 U.S. 240.  IN THE
LATTER CASE THE BOARD'S ORDER TO BARGAIN WITH THE UNION RESTED IN PART
ON ITS FINDING THAT THE COMPANY SHOULD REINSTATE NINETY-THREE
DISCHARGED UNION MEMBERS.  THE BOARD HAD NOT DETERMINED IN THAT
PROCEEDING, NOR DID IT ARGUE IN THIS COURT, THAT THE COMPANY SHOULD BE
COMPELLED TO BARGAIN WITH THE UNION IF THESE NINETY-THREE EMPLOYEES
WERE DENIED REINSTATEMENT.  AFTER THIS COURT, CONTRARY TO THE BOARD'S
CONCLUSION, HELD THAT THESE EMPLOYEES PROPERLY WERE DENIED
REINSTATEMENT, THE SITUATION WAS THE SAME AS IF THE BOARD HAD NOT
CONSIDERED THE EFFECT OF THE CHANGE IN UNION MEMBERSHIP.  CF. LABOR
BOARD V. P. LORILLARD CO., SUPRA.  AFFIRMED. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



U.S. V. BAUSCH & LOMB CO., 321 U.S. 707 


ARGUED DECEMBER 8, 1943.  - DECIDED APRIL 10, 1944.  - 45 F.SUPP.  387,
MODIFIED AND AFFIRMED. 


1.  THE PROVISION OF THE JUDGMENT DISMISSING, AS TO CERTAIN OF THE
DEFENDANTS, THE COMPLAINT IN A SUIT TO RESTRAIN ALLEGED VIOLATIONS OF
THE SHERMAN ACT IS HERE AFFIRMED BY AN EQUALLY DIVIDED COURT.  P. 719. 

2.  A DISTRIBUTOR OF A TRADE-MARKED ARTICLE IN INTERSTATE COMMERCE
MAY NOT LIMIT BY AGREEMENT, EXPRESS OR IMPLIED, THE PRICE AT WHICH OR
THE PERSONS TO WHOM ITS PURCHASER MAY RESELL, EXCEPT AS AUTHORIZED BY
THE MILLER-TYDINGS ACT.  P. 721. 

3.  THE EVIDENCE IN THIS CASE SUPPORTS THE DISTRICT COURT'S FINDING
OF A COMBINATION AND CONSPIRACY BETWEEN THE SOFT-LITE COMPANY (A
DISTRIBUTOR OF TRADE-MARKED PINK-TINTED OPHTHALMIC LENSES) AND
WHOLESALERS TO MAINTAIN RESALE PRICES THROUGH A DISTRIBUTION SYSTEM IN
VIOLATION OF THE SHERMAN ACT.  ON REVIEW OF ITS DECREE, HELD: 

(A)  THE ORDER OF THE DISTRICT COURT DIRECTING CANCELLATION OF SOFT
LITE'S ARRANGEMENTS WITH WHOLESALERS AND CESSATION OF SYSTEMATIC PRICE
SUGGESTIONS WAS JUSTIFIED BY THE FINDINGS.  P. 723. 

WHETHER THE CONSPIRACY AND COMBINATION WAS ACHIEVED BY AGREEMENT OR
BY ACQUIESCENCE OF THE WHOLESALERS, COUPLED WITH ASSISTANCE IN
EFFECTUATING ITS PURPOSE, IS IMMATERIAL. 

(B)  CLAUSES OF THE DECREE WHICH HOLD NULL AND VOID CERTAIN RESALE
PRICE MAINTENANCE CONTRACTS ENTERED INTO BY SOFT-LITE AND WHOLESALERS
SUBSEQUENT TO THE MILLER-TYDINGS ACT, AND WHICH FORBID ENFORCEMENT OF
SUCH CONTRACTS AND THE EXECUTION OF ANY OTHERS FOR SIX MONTHS AFTER
NOTICE OF CANCELLATION, ARE JUSTIFIED IN VIEW OF THE ILLEGALITY OF THE
DISTRIBUTION SYSTEM PREVIOUSLY EXISTING AND BECAUSE THE CONTRACTS IN
RESPECT OF A PORTION OF THE RESALES ARE NOT IMMUNIZED BY THE ACT.  P.
724. 

EQUITY HAS POWER TO ERADICATE THE EVILS OF A CONDEMNED SCHEME BY
PROHIBITION OF THE USE OF ADMITTEDLY VALID PARTS OF AN INVALID WHOLE. 

(C)  PROVISIONS OF THE DECREE GIVING REPRESENTATIVES OF THE
DEPARTMENT OF JUSTICE CERTAIN BROAD VISITATORIAL POWERS, AS CONSTRUED
BY THIS COURT, WERE WITHIN THE POWER AND DISCRETION OF THE DISTRICT
COURT.  P. 726. 

(D)  A PROVISION OF THE DECREE DIRECTING THE DEFENDANTS TO SUBMIT, ON
THE WRITTEN REQUEST OF THE DEPARTMENT OF JUSTICE, SUCH REPORTS IN
WRITING "WITH RESPECT TO ANY OF THE MATTERS CONTAINED IN THIS JUDGMENT"
AS MAY BE NECESSARY TO ENFORCE IT, IS TOO INDEFINITE FOR JUDICIAL
ENFORCEMENT AND THEREFORE INAPPROPRIATE.  PP. 725, 728. 

(E)  THE GOVERNMENT'S REQUESTS THAT THE DECREE REQUIRE SOFT-LITE TO
SELL ITS PRODUCT TO ANY PERSON OFFERING TO PAY CASH THEREFOR, AND THAT
THE PROHIBITION AGAINST SOFT-LITE'S SYSTEMATICALLY SUGGESTING RESALE
PRICES AND ITS EXECUTION OF RESALE PRICE MAINTENANCE CONTRACTS UNDER
THE MILLER-TYDINGS ACT BE MADE PERMANENT, ARE DENIED.  P. 728. 

UNITED STATES V. BAUSCH & LOMB OPTICAL CO. ET AL. 

NO. 62.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK* . 

*TOGETHER WITH NO. 64, SOFT-LITE LENS CO., INC., ET AL. V. UNITED
STATES, ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK. 

CROSS-APPEALS FROM A DECREE WHICH, IN A SUIT TO RESTRAIN ALLEGED
VIOLATIONS OF THE SHERMAN ACT, DISMISSED THE COMPLAINT AS TO CERTAIN OF
THE DEFENDANTS AND GAVE INJUNCTIVE RELIEF AGAINST OTHERS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES OF AMERICA BROUGHT SUIT IN THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AGAINST THE BAUSCH & LOMB OPTICAL
COMPANY, A CORPORATION, AND THE SOFT-LITE LENS COMPANY, INC., AND
SEVERAL OF THE CHIEF OFFICERS OF EACH, TO RESTRAIN VIOLATIONS OF THE
SHERMAN ACT.  JURISDICTION WAS CONFERRED ON THE TRIAL COURT BY SEC. 4
OF THE ACT (15 U.S.C. SEC. 4) AND UPON THIS COURT BY SEC. 2 OF THE ACT
OF FEBRUARY 11, 1903(15 U.S.C. SEC. 29 AND JUDICIAL CODE SEC. 238). 

THE COMPLAINT ALLEGED THAT BAUSCH & LOMB AND SOFT-LITE AND THEIR
OFFICERS CONTRACTED, COMBINED AND CONSPIRED TO RESTRAIN TRADE IN PINK
TINTED LENSES FOR EYEGLASSES, CONTRARY TO SECS. 1 AND 3 OF THE SHERMAN
ACT.  FN1  THE ALLEGATIONS OF THE COMPLAINT WERE UPHELD BY THE TRIAL
COURT AS TO SOFT-LITE AND CERTAIN OF ITS OFFICERS AND DISMISSED AS TO
BAUSCH & LOMB AND ITS OFFICERS.  UNITED STATES V. BAUSCH & LOMB OPTICAL
CO., 45 F.SUPP.  387. 

THE FINDINGS AND OPINION UPON WHICH THE DECREE IS MOLDED SHOW THAT
SOFT-LITE IS THE SOLE DISTRIBUTOR OF PINK TINTED LENSES SOLD UNDER THE
TRADE NAME "SOFT-LITE."  THEIR PLAN OF DEALING FOLLOWS.  AS NO PATENTS
OR SECRET PROCESSES ARE RELIED UPON AND AS SOFT-LITE LIMITS ITSELF TO
DISTRIBUTION ONLY, THE TRADE NAME, SALESMANSHIP AND BUSINESS EXPERIENCE
OF SOFT-LITE ARE THE QUALITIES UPON WHICH IT MUST PRIMARILY DEPEND FOR
ITS PROFITS AS A DISTRIBUTOR.  SOFT-LITE BUYS ITS LENSES FROM BAUSCH &
LOMB.  IT SELLS TO WHOLESALERS, WHO IN TURN SELL TO RETAILERS, WHO IN
TURN SELL TO THE PUBLIC.  LAYING ASIDE THE VARIATIONS IN OPERATING
COSTS OF WHOLESALERS AS COMPARED WITH OTHER WHOLESALERS AND OF
RETAILERS AS COMPARED WITH OTHER RETAILERS, THE OPPORTUNITY FOR PROFITS
WHICH CAN BE DIVIDED BETWEEN SOFT-LITE, THE WHOLESALERS AND THE
RETAILERS, DEPENDS UPON THE DIFFERENCE BETWEEN THE PRICE PER LENS THAT
SOFT-LITE PAYS BAUSCH & LOMB AND THE PRICE THE ULTIMATE CONSUMER PAYS
THE RETAILER.  A WIDER SPREAD BETWEEN ORIGINAL PURCHASE AND FINAL
PRICES, WHICH IS MAINTAINED BY ARTIFICIAL FIXING OF THE PRICES DEMANDED
FROM THE ULTIMATE CONSUMER, FURNISHES THE LINKS OF THE DISTRIBUTION
CHAIN MORE PROFIT FOR DIVISION AMONG THEMSELVES.  THIS IS TRUE
REGARDLESS OF VOLUME OR PRICE ALTHOUGH THESE FACTORS, OF COURSE, AFFECT
THE AGGREGATE PROFITS AVAILABLE FOR DIVISION AMONG THE DEALERS WHO HAVE
A PART IN DISTRIBUTION.  IN ITS SELF-RESTRICTED FIELD, SOFT-LITE IS
SUCCESSFUL.  ROUGHLY SPEAKING, FOR THE YEARS 1938, 1939 AND 1940 IN THE
UNITED STATES IT HAS SOLD ONE-THIRD OF THE PINK TINTED LENSES FOR ONE
HALF OF THE GROSS RECEIPTS.  OTHER MANUFACTURERS THAN BAUSCH & LOMB AND
OTHER DISTRIBUTORS THAN SOFT-LITE DO THE REMAINDER OF THE BUSINESS. 

SOFT-LITE HAS ARRANGEMENTS WITH BAUSCH & LOMB FOR THE PURCHASE FROM
THEM OF LENSES AND BLANKS, WITH WHOLESALERS OF OPTICAL GLASS FOR THE
SUPPLY OF THIS MATERIAL TO RETAIL OPTICIANS, AND IN TURN WITH THESE
RETAILERS FOR SALES PROMOTION.  THIS IS AN INTEGRATED PLAN FOR THE
DISTRIBUTION OF SOFT-LITE'S OPTICAL SPECIALTY, THE PINK TINTED GLASS
FOR EASING EYE STRAIN.  THE PLAN OF DISTRIBUTION FOR THIS COMMODITY HAS
DEVELOPED OVER MORE THAN A QUARTER OF A CENTURY OF EXPERIENCE. 

THE ARRANGEMENT WITH BAUSCH & LOMB HAD ITS ORIGIN IN 1924.  AT THAT
TIME THIS MANUFACTURER OF OPTICAL GLASS UNDERTOOK TO GRIND PINK TINTED
LENSES FOR SOFT-LITE OUT OF FOREIGN GLASS IMPORTED BY THE LATTER, BUT
VERY SOON THE TWO PARTIES ARRANGED FOR BAUSCH & LOMB TO MANUFACTURE THE
GLASS AS WELL.  AT THE VERY BEGINNING BAUSCH & LOMB AGREED THAT ANY
ORDERS FOR PINK TINTED LENSES WHICH IT MIGHT RECEIVE WOULD BE
TRANSMITTED TO SOFT-LITE.  A LIST OF SOFT-LITE CUSTOMERS, WHOLESALE AND
RETAIL, WAS FURNISHED BAUSCH & LOMB.  IT APPEARED BETTER TO BOTH SELLER
AND BUYER TO EXTEND THEIR ARRANGEMENT BY A CONTRACT IN WHICH BAUSCH &
LOMB UNDERTOOK TO MANUFACTURE AND SELL PINK TINTED GLASS AND LENSES TO
SOFT-LITE.  TO AVOID THE DANGER TO SOFT-LITE'S BUSINESS OF
INDISCRIMINATE SELLING BY BAUSCH & LOMB OF THIS PINK GLASS SPECIALTY,
BAUSCH & LOMB AGREED THAT IT WOULD NOT SELL PINK TINTED GLASS TO LENS
MANUFACTURERS OR PINK TINTED LENSES TO THE OPTICAL TRADE.  SOFT-LITE
BUYS EXCLUSIVELY FROM BAUSCH & LOMB. 

THE LEGAL POSITION OF BAUSCH & LOMB AND SOFT-LITE IS THAT OF BUYER
AND SELLER.  THEIR RELATIONS THROUGH THE YEARS HAVE BEEN CLOSE,
FRIENDLY AND MUTUALLY SATISFACTORY.  BAUSCH & LOMB KNOWS GENERALLY OF
THE SOFT-LITE DISTRIBUTION SYSTEM, BOTH AS MANUFACTURER FOR AN ACTIVE
CUSTOMER AND AS AN OWNER OF STOCK IN WHOLESALE OPTICAL GOODS COMPANIES,
WHICH SUBSIDIARY COMPANIES HANDLED A LARGE PART OF SOFT-LITE'S GOODS AS
JOBBERS.  THE OFFICIALS OF THE TWO CORPORATIONS CARRIED ON DISCUSSIONS
AND CORRESPONDENCE WITH RESPECT TO WHOLESALE CUSTOMERS, RETAIL OUTLETS,
PRICES, ADVERTISING POLICIES, THE STANDING OF DEALERS, AND GENERAL
TRADE INFORMATION.  AS TO TRADE ADJUNCTS FOR OPTICAL GLASS DISTRIBUTION
SUCH AS CLEANING CLOTHS, LENS CABINETS, ETC., SOFT-LITE AND BAUSCH &
LOMB COOPERATED EVEN TO THE EXTENT OF AGREEING TO CHARGE IDENTICAL
PRICES FOR SUCH MARKETING AIDS. 

IN 1926, THE ARRANGEMENT BETWEEN BAUSCH & LOMB AND SOFT-LITE WAS
GIVEN A SOMEWHAT MORE FORMAL CHARACTER BY A LETTER OF THE MANUFACTURER
ADVISING ITS CUSTOMER AS FOLLOWS: 

"SINCE THE VERY BEGINNING OF OUR RELATIONS WITH YOU, IN CONNECTION
WITH THIS TRANSACTION, IT HAS BEEN UNDERSTOOD THAT WE WOULD SAFEGUARD
YOUR INTERESTS IN EVERY WAY AND IT HAS NEVER BEEN OUR INTENTION TO MAKE
COMPETITION FOR YOU BY EITHER MARKETING A TINTED LENS OF OUR OWN OR
PRODUCING SIMILAR TINTED GLASS FOR OTHER MANUFACTURERS AND IT IS OUR
INTENTION TO ABIDE BY THIS UNDERSTANDING. 

"ON THE OTHER HAND, HOWEVER, IT IS DIFFICULT TO FORESEE THE PROGRESS
OF SCIENCE IN PRODUCING GLASS POSSESSING BETTER PROPERTIES THAN IS
OBTAINABLE AT THE PRESENT TIME AND IN THAT EVENT WE FEEL CERTAIN THAT
YOU WOULD NOT IN ANY WAY DESIRE TO IMPEDE OUR PROGRESS IN THAT
DIRECTION. 

"WE HOPE THAT THIS MAY BE SUFFICIENT GUARANTEE TO YOU THAT WE DO NOT
WISH TO DO ANYTHING THAT WOULD LOOK LIKE COMPETITION IN CONNECTION WITH
THE SOFT-LITE AND WE NATURALLY EXPECT THAT YOUR EFFORTS IN THE SALE OF
SAME WILL BE CONTINUED AS AT PRESENT FOR AN INDEFINITE PERIOD UNLESS BY
CONSENT OF BOTH PARTIES CONCERNED A DIFFERENT ARRANGEMENT IS AGREED
UPON. 

YOURS VERY TRULY, 

BAUSCH & LOMB OPTICAL COMPANY. 

"P.S.  TINTED LENSES SUCH AS CROOKES, FIEUZAL, SMOKE, AMBER, ETC.
WHICH WE ARE NOW MANUFACTURING, IT IS UNDERSTOOD WILL NOT COME UNDER
THE ABOVE ARRANGEMENT." 

MINOR VARIATIONS IN THE PLAN HAVE OCCURRED SINCE THAT LETTER.  BAUSCH
& LOMB PATENTED A LENS CALLED "NOKROME."  SOFT-LITE WAS ADVISED THAT
WHEN SOFT-LITE GLASS WAS USED IN THE NOKROME LENS, SOFT-LITE SHOULD
HAVE EXCLUSIVE DISTRIBUTION.  THERE WERE OTHER PATENTED LENSES
MANUFACTURED BY BAUSCH & LOMB.  SOMETIMES THESE LENSES WERE GROUND FROM
PINK TINTED GLASS AND SOMETIMES FROM OTHER COLORS.  SINCE THESE
PATENTED LENSES WERE DISTRIBUTED BY BAUSCH & LOMB UNDER A LICENSEE
SYSTEM, INTERFERENCE AROSE.  SOFT-LITE AND BAUSCH & LOMB MADE MUTUALLY
SATISFACTORY ADJUSTMENTS SO THAT THEIR RESPECTIVE RETAILERS MIGHT HAVE
SOME OF THE ADVANTAGES OF DEALING IN THE BAUSCH & LOMB PATENTED LENSES
GROUND OUT OF SOFT-LITE GLASS. 

AGAIN, SOFT-LITE WAS RELEASED FROM ITS OBLIGATION TO TAKE SECOND
QUALITY LENSES AND BAUSCH & LOMB AGREED TO SELL THEM ONLY IN FOREIGN
COUNTRIES WHERE SOFT-LITE HAD NO OFFICES AND AT PRICES ACCEPTABLE TO
BOTH SOFT-LITE AND BAUSCH & LOMB. 

REFERENCE HAS BEEN MADE TO THE FACT THAT BAUSCH & LOMB OWNED STOCK IN
OPTICAL WHOLESALE COMPANIES WHICH DISTRIBUTED SOFT-LITE LENSES AND
BLANKS.  A STIPULATION STATED THAT "BAUSCH & LOMB, THROUGH ITS
OWNERSHIP OF A MAJORITY OF THE OUTSTANDING VOTING STOCK OF EACH OF SAID
WHOLESALE COMPANIES, HAS POWER TO COORDINATE AND CONTROL THE SALES AND
PRICING POLICIES OF SAID WHOLESALE COMPANIES." 

THESE SUBSIDIARIES WERE ACQUIRED BY BAUSCH & LOMB "AT INTERVALS
SUBSEQUENT TO THE ORIGINAL ARRANGEMENT WITH SOFT-LITE."  THEY NOW ARE
THE LARGEST OUTLET FOR SOFT-LITE LENSES, TAKING SIXTY PER CENT OF SOFT
LITE SALES.  THEY WERE SUBSTANTIAL CUSTOMERS OF SOFT-LITE BEFORE THEY
BECAME AFFILIATES OF BAUSCH & LOMB.  SOFT-LITE IS TREATED BY ITS
WHOLESALE CUSTOMERS ALIKE WHETHER OR NOT THE CUSTOMERS ARE BAUSCH &
LOMB AFFILIATES.  IT IS EQUALLY TRUE THAT ALL WHOLESALERS HAVE
COOPERATED WITH SOFT-LITE IN THE DEVELOPMENT OF ITS SYSTEM. 

BAUSCH & LOMB THUS PROFITED FROM THE SOFT-LITE BUSINESS IN TWO WAYS:
FIRST, BY PROFIT MADE IN MANUFACTURING AND SELLING TO SOFT-LITE;
SECOND, BY SHARING, THROUGH STOCK OWNERSHIP OF WHOLESALE DISTRIBUTORS
OF SOFT-LITE'S GOODS, IN THE PROFITS WHICH LAY BETWEEN THE SOFT-LITE
SELLING PRICE AND THE CONSUMER PURCHASE PRICE.  BAUSCH & LOMB, THE
EVIDENCE SHOWS, UNDERSTOOD WELL AS EARLY AS 1925 THE ADVANTAGES TO
ITSELF THROUGH THESE SUBSIDIARIES OF THE SOFT-LITE PLAN, WHICH SECURED
AN INCREASED PROFIT FOR DIVISION AMONG DISTRIBUTING AGENCIES.  AS A
CONSEQUENCE, BAUSCH & LOMB CONCERNED ITSELF WITH PRICES CHARGED TO
WHOLESALERS BY SOFT-LITE, DISCUSSED EACH STEP OF THE PRICE MARK-UP FROM
SOFT-LITE UP TO THE CONSUMER, INSISTED THAT REDUCTIONS IN ITS PRICES TO
SOFT-LITE SHOULD BE PASSED ALONG THE DISTRIBUTION LINE, AND THROUGH ITS
AFFILIATED CORPORATIONS COOPERATED IN THE PRICE ARRANGEMENTS AND THE
ELIMINATION OF UNDESIRABLE RETAILERS. 

SOFT-LITE'S CONTROL OF DISTRIBUTION DID NOT CEASE WITH THIS SALE OF
ITS GOODS TO OPTICAL WHOLESALERS.  IT SOUGHT AS WHOLESALE OUTLETS
DISTRIBUTORS WHO WERE FREE FROM BUSINESS ALLIANCES WITH SOFT-LITE'S
COMPETITORS.  IT SOLD ONLY TO WHOLESALERS WHO WERE WILLING TO COOPERATE
WITH ITS POLICY.  THESE WHOLESALERS IT DESIGNATED AS DEALERS AND SOLD
ITS GOODS ONLY THROUGH THEM.  SOFT-LITE'S WHOLESALERS WERE ALLOWED TO
RESELL ONLY TO RETAILERS WHO HELD LICENSES FROM SOFT-LITE.  WHEN
RETAILERS WERE LICENSED, THE WHOLESALERS WERE NOTIFIED THAT THEY WERE
AT LIBERTY TO SELL TO THE SPECIFIED RETAILER.  ON THE CANCELLATION OF
THE LICENSE, THE WHOLESALERS WERE NOTIFIED IN WRITING THAT THE RETAILER
WAS NO LONGER ENTITLED TO RECEIVE SOFT-LITE LENSES.  IF A WHOLESALER
DID BUSINESS WITH UNAPPROVED RETAILERS, IT WAS EXCLUDED FROM SOFT
LITE'S LIST OF DESIGNATED WHOLESALERS.  THE WHOLESALERS WERE REQUIRED
TO DISTRIBUTE WITH EACH PAIR OF SOFT-LITE LENSES A NUMBERED CERTIFICATE
CALLED A "PROTECTION CERTIFICATE."  BY THIS CERTIFICATE THE WHOLESALE
OUTLET FOR SOFT-LITE LENSES FOUND IN THE HANDS OF UNLICENSED RETAILERS
COULD BE TRACED BY SOFT-LITE.  THE WHOLESALERS WERE TOLD THAT THE
CERTIFICATES WERE INTENDED FOR THIS PURPOSE.  SOFT-LITE INDICATED TO
THE WHOLESALERS THE PRICES TO BE RECEIVED BY THEM FROM RETAILERS BY
MEANS OF PUBLISHED PRICE LISTS.  THROUGH THESE PRICE LISTS, MADE
AVAILABLE TO WHOLESALERS AND RETAILERS ALIKE, THE RETAILERS COULD
DETERMINE THE PRICES WHOLESALERS WERE TO CHARGE. 

IT WAS DETERMINED BY THE DISTRICT COURT (AND THIS FINDING IS WITHOUT
CHALLENGE) THAT SOFT-LITE AND THE WHOLESALERS UNDERSTOOD THAT MATERIAL
DEVIATION WOULD RESULT IN THE DISCONTINUANCE OF THE OFFENDING
WHOLESALER AS AN OUTLET. 

SOFT-LITE'S PLAN OF DISTRIBUTION WAS ROUNDED OUT BY ITS ARRANGEMENTS
WITH THE RETAIL OPTICAL CONCERNS.  AS WE HAVE JUST POINTED OUT, THE
RETAILERS KNEW FROM THE PUBLISHED LISTS THE PRICES THE WHOLESALERS WERE
EXPECTED TO CHARGE THEM.  THE RETAILERS WERE SELECTED BY SOFT-LITE WITH
CARE EQUAL TO THAT USED IN SELECTING WHOLESALERS.  SOFT-LITE, IN THE
WORDS OF ITS BRIEF, WAS "MANUFACTURED AND ADVERTISED AS A QUALITY
PRODUCT, SOFT-LITE MUST BE SOLD AS SUCH."  "ETHICAL" RETAILER OPTICIANS
AND OPTOMETRISTS WERE SOUGHT.  THOSE WHO QUOTED PRICES IN THEIR
ADVERTISEMENTS OR OPERATED AS ADJUNCTS TO DEPARTMENT OR JEWELRY STORES
WERE FROWNED UPON.  RETAIL PRICES TO CONSUMERS WERE NOT FIXED BY SOFT
LITE.  IT SEEMS TO BE ADMITTED, HOWEVER, THAT THE RETAILER WAS REQUIRED
TO MAINTAIN PREVAILING LOCAL PRICE SCHEDULES.  AN APPLICATION FORM
DATED FEBRUARY 1, 1939, FOR RETAIL STOCK LICENSEES CALLS FOR
REPRESENTATIONS TO THAT EFFECT FROM THE SOFT-LITE REPRESENTATIVE
RECOMMENDING THE APPLICATION AND THE APPROVAL OF A SOFT-LITE
WHOLESALER.  THIS PRACTICE APPARENTLY APPLIED TO ALL RETAILERS.  THE
DISTRICT COURT FOUND THAT RETAILERS AGREED TO SELL THE LENSES AT PRICES
PREVAILING IN THE LOCALITY AND THAT SOFT-LITE REQUIRED RETAILERS TO
SELL THE PINK TINTED LENSES "AT A PREMIUM OVER COMPARABLE UNTINTED
LENSES." 

UNDER ITS PRESENT SYSTEM, SOFT-LITE GRANTS A REVOCABLE, EXCLUSIVE AND
NONTRANSFERABLE "LICENSE" TO THE RETAILER TO BUY SOFT-LITE LENSES AND
LENS BLANKS FROM "LICENSED" SOFT-LITE DISTRIBUTORS OR WHOLESALE
"LICENSEES" AND TO RESELL THE LENSES AT PREVAILING PRICES IN THE
LOCALITY WHERE THE RETAILER IS LOCATED.  IN TURN, THE LICENSEE AGREES
TO PROMOTE THE SALE OF SOFT-LITE LENSES AND TO DO NOTHING TO INJURE
THEIR PRESTIGE.  THE LICENSEE WAS REQUIRED TO STATE THAT HE UNDERSTOOD
THAT THE SUBSTITUTION OF OTHER LENSES FOR SOFT-LITE WOULD ADVERSELY
AFFECT THAT PRESTIGE.  THE LICENSEE FURTHER AGREED TO SELL ONLY UNDER
THE TRADE NAMES AND MARK OF SOFT-LITE AND ONLY TO THE CONSUMER OR
PATIENT.  FN2   THE RETAILER'S AGREEMENT TO CONFORM TO THE LICENSE
REQUIREMENTS WAS ENFORCED BY SURVEILLANCE THROUGH SOFT-LITE'S SALESMEN
AND BY CANCELLATION OF THE RETAILER'S LICENSE IF HE FAILED TO ABIDE BY
ITS TERMS.  WHOLESALERS WERE NOTIFIED OF SUCH CANCELLATION. 

THE MILLER-TYDINGS ACT OF AUGUST 17, 1937, 50 STAT. 693, AMENDED THE
SHERMAN ACT SO AS TO PERMIT MINIMUM PRICES FOR THE RESALE OF A
COMMODITY WHICH BEARS THE TRADE MARK OF THE DISTRIBUTOR IN STATES WHERE
CONTRACTS OF THAT DESCRIPTION ARE LEGAL BY STATUTE SO FAR AS INTRASTATE
TRANSACTIONS ARE CONCERNED, AND BEGINNING IN 1940 SOFT-LITE HAS ENTERED
INTO RESALE PRICE MAINTENANCE CONTRACTS WITH A NUMBER OF WHOLESALERS,
PRESUMABLY IN CONFORMITY WITH THE MILLER-TYDINGS ACT.  THE DISTRICT
COURT WAS OF THE VIEW THAT THESE CONTRACTS "CAME INTO EXISTENCE AS A
PATCH UPON AN ILLEGAL SYSTEM OF DISTRIBUTION OF WHICH THEY HAVE BECOME
AN INTEGRAL PART." 

IT IS ACCEPTED BY ALL PARTIES THAT THE TRANSACTIONS OF BAUSCH & LOMB
AND SOFT-LITE ARE IN INTERSTATE COMMERCE AS THE TERM "COMMERCE" IS USED
IN THE SHERMAN ACT. 

THE JUDGMENT OF THE DISTRICT COURT DETERMINED THAT SOFT-LITE AND
CERTAIN OF ITS OFFICERS HAD CONTRACTED AND CONSPIRED WITH OPTICAL
WHOLESALERS AND RETAILERS TO VIOLATE THE SHERMAN ANTI-TRUST ACT IN THE
FOLLOWING PARTICULARS: 

"(A) BY ENTERING INTO SO-CALLED 'LICENSE' AGREEMENTS WITH OPTICAL
RETAILERS WHICH FIX THE PRICES AT WHICH SAID RETAILERS SHALL SELL SOFT
LITE LENSES; (B) BY ENTERING INTO SO-CALLED 'LICENSE' AGREEMENTS WITH
OPTICAL RETAILERS WHICH PROVIDE THAT SAID RETAILERS WILL SELL SUCH
LENSES ONLY TO THE PUBLIC; (C) BY ENTERING INTO AGREEMENTS WITH
WHOLESALE CUSTOMERS WHICH PROVIDE THAT THE SAID WHOLESALERS WILL SELL
SOFT-LITE LENSES AND BLANKS ONLY TO RETAILERS WHO ARE DESIGNATED AS
'LICENSEES' BY THE DEFENDANT SOFT-LITE LENS COMPANY, INC.; (D) BY
ENTERING INTO AGREEMENTS WITH WHOLESALE CUSTOMERS WHICH FIX THE PRICES
AT WHICH SAID WHOLESALERS SHALL SELL SOFT-LITE LENSES AND BLANKS; (E)
BY ENTERING INTO 'FAIR TRADE' RESALE PRICE MAINTENANCE CONTRACTS WITH
SAID WHOLESALERS AS AN INTEGRAL PART OF THE ILLEGAL DISTRIBUTION SYSTEM
OF SOFT-LITE BLANKS AND LENSES; AND (F) BY ENFORCING THE AGREEMENTS SET
FORTH IN SUBDIVISIONS (A) THROUGH (E) OF THIS PARAGRAPH." 

THE JUDGMENT DIRECTS SOFT-LITE TO CANCEL ITS LICENSE AGREEMENTS WITH
RETAILERS AND ITS FAIR TRADE RESALE PRICE MAINTENANCE CONTRACTS AND
AGREEMENTS WITH WHOLESALERS FIXING PRICES AND RESTRICTING THEIR RESALES
TO SOFT-LITE'S RETAIL LICENSEES.  SOFT-LITE AND ITS AGENTS ARE ENJOINED
FROM ENFORCING THESE CONTRACTS OR USING IDENTIFICATION DEVICES, SUCH AS
THE "PROTECTION CERTIFICATES," FOR TRACING RESALES OF LENSES OR BLANKS
PURCHASED FROM SOFT-LITE.  THEY ARE LIKEWISE FORBIDDEN TO ENTER INTO
ANY OTHER AGREEMENT SIMILAR IN EFFECT OR PURPOSE TO THOSE ADJUDGED
UNLAWFUL, EXCEPT THE FAIR TRADE CONTRACTS.  THESE LATTER MAY BE
RENEGOTIATED AFTER SIX MONTHS FROM THE NOTICES OF CANCELLATION WHICH
THE JUDGMENT DIRECTS TO ISSUE.  THERE IS ALSO A PROHIBITION AGAINST
SOFT-LITE'S AND ITS OFFICERS' SYSTEMATICALLY SUGGESTING RESALE PRICES
ON LENS OR BLANKS FOR SAID SIX MONTHS.  BAUSCH & LOMB AND VARIOUS
INDIVIDUALS ARE ADJUDGED TO BE FREE OF THE VIOLATIONS WHICH ARE CHARGED
IN THE COMPLAINT.  THE RIGHT TO INSPECT RECORDS AND TO INTERVIEW
OFFICERS AND EMPLOYEES IS RESERVED TO THE DEPARTMENT OF JUSTICE IN THE
MANNER SET OUT BELOW.  FN3 FINALLY, JURISDICTION OF THE CASE IS
RETAINED FOR FURTHER ORDERS, OR DIRECTIONS, INCLUDING MODIFICATION OR
TERMINATION OF ANY OF THE PROVISIONS AS WELL AS THEIR ENFORCEMENT.  CF.
SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553, 605. 

TWO APPEALS ARE BEFORE US.  THE GOVERNMENT SEEKS TO ESTABLISH THAT
THE AGREEMENT OF BAUSCH & LOMB NOT TO SELL PINK TINTED GLASS OR LENSES
TO ANY COMPETITOR OF SOFT-LITE AND NOT TO COMPETE WITH SOFT-LITE IN THE
MARKETING OF ANY PINK TINTED LENS UNREASONABLY RESTRAINS COMMERCE IN
VIOLATION OF THE SHERMAN ACT.  BY ITS APPEAL, THE GOVERNMENT URGES ALSO
A BROADENING OF THE DECREE BY THE SUBSTITUTION OF A PERMANENT INSTEAD
OF A SIX MONTHS' INJUNCTION AGAINST NEW FAIR TRADE AGREEMENTS AND
AGAINST SYSTEMATIC SUGGESTION OF RESALE PRICES BY SOFT-LITE.  IT ALSO
ASKS AN ADDITION TO THE DECREE REQUIRING SOFT-LITE TO SELL ITS PRODUCT
WITHOUT DISCRIMINATION TO ANY PERSON OFFERING TO PAY CASH THEREFOR. 

THE OTHER APPEAL IS BY SOFT-LITE AND THOSE OF ITS OFFICERS WHO ARE
ENJOINED.  THIS APPEAL ATTACKS THE PROVISIONS OF THE JUDGMENT
CANCELLING AGREEMENTS OF SOFT-LITE WITH WHOLESALERS TO CHARGE UNIFORM
PRICES TO RETAILERS, ENJOINING SYSTEMATIC SUGGESTIONS OF RESALE PRICES
AND EXECUTION OF FAIR TRADE RESALE PRICE MAINTENANCE CONTRACTS EVEN FOR
SIX MONTHS, AND ALLOWING FUTURE DISCOVERY BY THE DEPARTMENT OF JUSTICE
IN ORDER TO POLICE THE DECREE. 

SINCE THE ALLEGED ILLEGALITY OF THE SOFT-LITE DISTRIBUTION SYSTEM IS
THE HEART OF THE SCHEME WHICH THE GOVERNMENT ATTACKS, WE SHALL EXAMINE
FIRST THE JUDGMENT FROM THE STANDPOINT OF SOFT-LITE'S OBJECTIONS TO IT
AND THEN FROM THAT OF THE GOVERNMENT'S DESIRED ADDITIONS AS TO SOFT
LITE. 

AS THE COURT IS EQUALLY DIVIDED UPON THE ISSUE RAISED IN THE
GOVERNMENT'S APPEAL IN NO. 62 BY ITS REQUEST FOR A REVERSAL OF THE
PROVISION OF THE JUDGMENT WHICH DISMISSES BAUSCH & LOMB AND ITS
OFFICERS FROM THE PROCEEDING, THAT PROVISION STANDS AFFIRMED. 

  I. 

OUR TASK OF EXAMINING SOFT-LITE'S OBJECTIONS IS SIMPLIFIED BY THE
FRANK RECOGNITION OF THOSE APPELLANTS THAT "THE RETAIL LICENSE
PROVISIONS BINDING DEALERS TO SELL AT LOCALLY PREVAILING PRICES AND
ONLY TO THE PUBLIC CONSTITUTE ILLEGAL RESTRAINTS."  OUR FORMER
DECISIONS COMPEL THIS CONCLUSION.  PRICE FIXING, REASONABLE OR
UNREASONABLE, IS "UNLAWFUL PER SE."  UNITED STATES V. SOCONY-VACUUM OIL
CO., 310 U.S. 150, 218; UNITED STATES V. TRENTON POTTERIES, 273 U.S.
392, 397; ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 458;
FASHION GUILD V. TRADE COMM'N, 312 U.S. 457, 465.  THE RETAILER'S PRICE
TO HIS CUSTOMER IS THE SINGLE SOURCE OF STABLE PROFITS FOR ALL
HANDLERS. 

THESE ILLEGAL CONTRACTS CANNOT BE CONSIDERED, HOWEVER, AS HAPPENINGS,
COMPLETELY INSULATED FROM OTHER INCIDENTS OF THE SOFT-LITE DISTRIBUTION
SYSTEM.  WHEN WE TURN TO THE PROVISIONS OF THE DECREE WHICH ARE
ATTACKED HERE BY SOFT-LITE, REQUIRING IT TO CANCEL ITS RESALE PRICE
AGREEMENTS WITH WHOLESALERS AS WELL AS RETAILERS AND TO AVOID SUCH
REQUIREMENTS FOR SIX MONTHS EITHER BY CONTRACT OR SUGGESTION, AND
THEREAFTER TO ACT ONLY IN ACCORDANCE WITH THE MILLER-TYDINGS ACT, WE
MUST FIRST NOTE THAT IT IS PLAIN THAT THE ARRANGEMENTS FOR PRICE
MAINTENANCE IN THE WHOLESALERS' SALES TO RETAILERS ARE AN INTEGRAL PART
OF THE WHOLE DISTRIBUTION SYSTEM.  NOT ONLY ARE SOFT-LITE WHOLESALERS
CAREFULLY SELECTED AND COOPERATIVE BUT THEY MAY SELL ONLY TO SOFT
LITE'S RETAIL LICENSEES.  UNDESIRABLE WHOLESALERS ARE EXCLUDED FROM THE
SYSTEM AND THE DISTRICT COURT FOUND THAT BY MEANS OF PUBLISHED
WHOLESALE PRICE LISTS, PUT IN THE HANDS OF WHOLESALERS AND RETAILERS
ALIKE, RESALE PRICES OF WHOLESALERS ARE DESIGNATED BY SOFT-LITE.  THE
REQUIREMENT OF THE WHOLESALERS' RECOMMENDATION AS TO THE BUSINESS
CHARACTER OF THE APPLICANT FOR A RETAIL LICENSE, THE EVIDENCE OF
ESPIONAGE, THE LIMITATION OF RESALES TO SOFT-LITE RETAIL LICENSEES, THE
EXISTENCE OF THE "PROTECTION CERTIFICATE" TO MARK THE WHOLESALER WHO
MIGHT VIOLATE THE ARRANGEMENT, THE UNIFORMITY OF THE PRICES, AS
PRESCRIBED IN SOFT-LITE'S PUBLISHED LISTS, WHICH ARE CHARGED RETAILERS
BY WHOLESALERS - ALL AMPLY SUPPORT, INDEED REQUIRE, THE INFERENCE OF
THE TRIAL COURT THAT A CONSPIRACY TO MAINTAIN PRICES DOWN THE
DISTRIBUTION SYSTEM EXISTED BETWEEN THE WHOLESALERS AND SOFT-LITE
THROUGH THE YEARS PRIOR TO THIS SUIT. 

SOFT-LITE IS THE DISTRIBUTOR OF AN UNPATENTED ARTICLE.  IT SELLS TO
ITS WHOLESALERS AT PRICES SATISFACTORY TO ITSELF.  BEYOND THAT POINT IT
MAY NOT PROJECT ITS POWER OVER THE PRICES OF ITS WHOLESALE CUSTOMERS BY
AGREEMENT.  A DISTRIBUTOR OF A TRADE-MARKED ARTICLE MAY NOT LAWFULLY
LIMIT BY AGREEMENT, EXPRESS OR IMPLIED, THE PRICE AT WHICH OR THE
PERSONS TO WHOM ITS PURCHASER MAY RESELL, EXCEPT AS THE SELLER MOVES
ALONG THE ROUTE WHICH IS MARKED BY THE MILLER-TYDINGS ACT.  DR. MILES
MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373, 404.  EVEN THE ADDITIONAL
PROTECTION OF A COPYRIGHT, BOBBS-MERRILL CO. V. STRAUS, 210 U.S. 339;
INTERSTATE CIRCUIT V. UNITED STATES, 306 U.S. 208, 221, AND CASES
CITED, OR OF A PATENT, UNITED STATES V. MASONITE CORP., 316 U.S. 265,
276; MERCOID CORP. V. MID-CONTINENT INVESTMENT CO., 320 U.S. 661, 664
665, AND CASES CITED, ADDS NOTHING TO A DISTRIBUTOR'S POWER TO CONTROL
PRICES OF RESALE BY A PURCHASER.  THE SAME THING IS TRUE AS TO
RESTRICTION OF CUSTOMERS.  FASHION GUILD V. TRADE COMM'N, 312 U.S. 457,
465; STANDARD SANITARY MFG. CO. V. UNITED STATES, 226 U.S. 20, 47-49;
MONTAGUE & CO. V. LOWRY, 193 U.S. 38, 45. 

NOT ONLY DO THE APPELLANTS URGE THAT CONSPIRACY BETWEEN SOFT-LITE AND
THE WHOLESALERS SHOULD NOT BE FOUND FROM THE FOREGOING EVIDENCE BUT
THEY ALSO SAY THAT THEY COME WITHIN THE SCOPE OF CERTAIN OF OUR CASES
WHICH ARE SAID TO INDICATE THAT A SIMPLE REFUSAL TO SELL TO CUSTOMERS
WHO WILL NOT RESELL AT PRICES FIXED BY THE SELLER IS PERMISSIBLE UNDER
THE SHERMAN ACT.  THEY CITE UNITED STATES V. COLGATE & CO., 250 U.S.
300; FEDERAL TRADE COMMISSION V. BEECH-NUT PACKING CO., 257 U.S. 441,
452-3; FEDERAL TRADE COMMISSION V. SINCLAIR REFINING CO., 261 U.S. 463,
475-6; AND FEDERAL TRADE COMMISSION V. CURTIS PUBLISHING CO., 260 U.S.
568, 582.  NONE OF THESE CASES INVOLVE, AS THE PRESENT CASE DOES, AN
AGREEMENT BETWEEN THE SELLER AND PURCHASER TO MAINTAIN RESALE PRICES. 

THE COLGATE CASE TURNED UPON THE SUFFICIENCY ON DEMURRER OF AN
INDICTMENT UNDER THE SHERMAN ACT AGAINST A MANUFACTURER FOR REQUIRING
ITS DEALERS TO MAINTAIN PRICES.  AS THE INDICTMENT WAS CONSTRUED TO
ALLEGE ONLY SPECIFICATION OF RESALE PRICES BY THE MANUFACTURER AND
REFUSAL TO DEAL WITH CUSTOMERS WHO DID NOT MAINTAIN THEM, THIS COURT
HELD THE INDICTMENT INSUFFICIENT AS NO REFERENCE WAS MADE IN IT TO A
PURPOSE TO MONOPOLIZE AND IN SUCH A POSTURE THE SHERMAN ACT "DOES NOT
RESTRICT THE LONG RECOGNIZED RIGHT OR TRADER OR MANUFACTURER ENGAGED IN
AN ENTIRELY PRIVATE BUSINESS, FREELY TO EXERCISE HIS OWN INDEPENDENT
DISCRETION AS TO PARTIES WITH WHOM HE WILL DEAL.  AND, OF COURSE, HE
MAY ANNOUNCE IN ADVANCE THE CIRCUMSTANCES UNDER WHICH HE WILL REFUSE TO
SELL."  250 U.S. AT 302, 306, 307.  CF. UNITED STATES V. SCHRADER'S
SON, 252 U.S. 85, 99. 

THE BEECH-NUT CASE RECOGNIZES THAT A SIMPLE REFUSAL TO SELL TO OTHERS
WHO DO NOT MAINTAIN THE FIRST SELLER'S FIXED RESALE PRICES  FN4  IS
LAWFUL BUT ADDS AS TO THE SHERMAN ACT, "HE (THE SELLER) MAY NOT,
CONSISTENTLY WITH THE ACT, GO BEYOND THE EXERCISE OF THIS RIGHT, AND BY
CONTRACTS OR COMBINATIONS, EXPRESS OR IMPLIED, UNDULY HINDER OR
OBSTRUCT THE FREE AND NATURAL FLOW OF COMMERCE IN THE CHANNELS OF
INTERSTATE TRADE."  257 U.S. AT 453.  THE BEECH-NUT COMPANY, WITHOUT
AGREEMENTS, WAS FOUND TO SUPPRESS THE FREEDOM OF COMPETITION BY
COERCION OF ITS CUSTOMERS THROUGH SPECIAL AGENTS OF THE COMPANY, BY
REPORTS OF COMPETITORS ABOUT CUSTOMERS WHO VIOLATED RESALE PRICES, AND
BY BOYCOTTS OF PRICE CUTTERS.  IDEM, PP. 451, 454, 455.  AS THE
DECISION AS TO THE CURTIS COMPANY INVOLVED ONLY SELLING AGENCIES, 260
U.S. AT 581, AND THAT AS TO SINCLAIR THE RESTRICTED USE OF A
DISTRIBUTOR'S GASOLINE TANKS, 261 U.S. AT 474, THEY ARE INAPPLICABLE TO
A CONSIDERATION OF A REFUSAL BY A DISTRIBUTOR TO SELL EXCEPT TO CHOSEN
DEALERS. 

AS IN THE BEECH-NUT CASE, THERE IS MORE HERE THAN MERE ACQUIESCENCE
OF WHOLESALERS IN SOFT-LITE'S PUBLISHED RESALE PRICE LIST.  THE
WHOLESALERS ACCEPTED SOFT-LITE'S PROFFER OF A PLAN OF DISTRIBUTION BY
COOPERATING IN PRICES, LIMITATION OF SALES TO AND APPROVAL OF RETAIL
LICENSEES.  THAT IS SUFFICIENT.  INTERSTATE CIRCUIT V. UNITED STATES,
306 U.S. 208, 226, 227; UNITED STATES V. MASONITE CORP., 316 U.S. 265,
274-75; SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553, 601. 

SO FAR AS THE WHOLESALERS ARE CONCERNED, SOFT-LITE AND ITS OFFICERS
CONSPIRED AND COMBINED AMONG THEMSELVES AND WITH AT LEAST SOME OF THE
WHOLESALERS TO RESTRAIN COMMERCE BY DESIGNATING SELECTED WHOLESALERS AS
SUB-DISTRIBUTORS OF SOFT-LITE PRODUCTS, BY FIXING RESALE PRICES AND BY
LIMITING THE CUSTOMERS OF THE WHOLESALERS TO THOSE RECOMMENDED BY THE
WHOLESALERS AND APPROVED BY SOFT-LITE - ALL IN VIOLATION OF THE SHERMAN
ACT.  THIS FINDING JUSTIFIES THE ORDER DIRECTING CANCELLATION OF THE
WHOLESALE ARRANGEMENTS AND CESSATION BY SOFT-LITE OF SYSTEMATIC PRICE
SUGGESTIONS.  WHETHER THIS CONSPIRACY AND COMBINATION WAS ACHIEVED BY
AGREEMENT OR BY ACQUIESCENCE OF THE WHOLESALERS COUPLED WITH ASSISTANCE
IN EFFECTUATING ITS PURPOSE IS IMMATERIAL. 

SOFT-LITE MAKES OBJECTION ALSO TO THE CLAUSE OF THE DECREE WHICH
HOLDS NULL AND VOID CERTAIN RESALE PRICE MAINTENANCE CONTRACTS ENTERED
INTO BY SOFT-LITE AND MANY OF ITS WHOLESALERS AFTER THE PASSAGE OF THE
MILLER-TYDINGS AMENDMENT TO THE SHERMAN ACT ON AUGUST 17, 1937, 50
STAT. 693.  SEE NOTE 1, SUPRA.  OBJECTIONS ON THE SAME GROUNDS APPLY TO
OTHER CLAUSES OF THE DECREE FORBIDDING ENFORCEMENT OF THESE EXISTING
"FAIR TRADE" CONTRACTS WITH WHOLESALERS AND SOFT-LITE'S ENTERING INTO
ANY OTHERS UNTIL SIX MONTHS AFTER CERTAIN NOTICES OF CANCELLATION WHICH
ARE REQUIRED BY THE DECREE BUT WHICH HAVE NOT YET BEEN GIVEN OWING TO
THIS APPEAL.  SOFT-LITE CONTENDS THAT THE "FAIR TRADE" AGREEMENTS ARE
STRICTLY WITHIN THE TERMS OF THE MILLER-TYDINGS ACT AND WE ASSUME THE
CORRECTNESS OF THAT POSITION.  FN5  THE DISADVANTAGE AT WHICH THESE
CLAUSES PLACE SOFT-LITE TOWARDS ITS CUSTOMERS AND COMPETITORS IS
POINTED OUT.    THE DISTRICT COURT SAID THAT THESE CONTRACTS "CAME INTO
EXISTENCE AS A PATCH UPON AN ILLEGAL SYSTEM OF DISTRIBUTION" AND AS AN
INTEGRAL PART OF THAT SYSTEM.  AS SOME WHOLESALERS DO CERTAIN CUTTING
AND EDGING WORK ON THE BLANKS FOR SALE TO RETAILERS WHO DO NOT DO THIS
GRINDING FOR THEMSELVES, THE "FAIR TRADE" CONTRACTS FOR FIXING RESALE
PRICES APPLY ONLY TO THOSE SALES, KNOWN AS "STOCK" SALES, WHERE THE
LENSES AND BLANKS ARE RESOLD IN THE SAME FORM IN WHICH THEY COME FROM
SOFT-LITE.  SEE UNITED STATES V. UNIVIS LENS CO., 316 U.S. 241, 253
54.  WE THINK THAT WHERE A DISTRIBUTION SYSTEM EXISTS, PRIOR TO THE
MAKING OF SUCH PRICE MAINTENANCE CONTRACTS, WHICH IS ILLEGAL BECAUSE OF
UNALLOWABLE PRICE FIXING CONTRACTS AND WHERE THAT ILLEGALITY
NECESSARILY PERSISTS IN PART BECAUSE A PORTION OF THE RESALES ARE NOT
COVERED BY THE "FAIR TRADE" CONTRACTS, AS JUST EXPLAINED, SUBSEQUENT
PRICE MAINTENANCE CONTRACTS, OTHERWISE VALID, SHOULD BE CANCELLED,
ALONG WITH THE INVALID ARRANGEMENTS, IN ORDER THAT THE GROUND MAY BE
CLEANSED EFFECTUALLY FROM THE VICE OF THE FORMER ILLEGALITY.  EQUITY
HAS POWER TO ERADICATE THE EVILS OF A CONDEMNED SCHEME BY PROHIBITION
OF THE USE OF ADMITTEDLY VALID PARTS OF AN INVALID WHOLE.  UNITED
STATES V. UNIVIS LENS CO., 316 U.S. 241, 254; ETHYL GASOLINE CORP. V.
UNITED STATES, 309 U.S. 436, 461.  CF. STANDARD OIL CO. V. UNITED
STATES, 221 U.S. 1, 78; UNITED STATES V. UNION PACIFIC R. CO., 226 U.S.
61, 96, 470, 476-77; AIKENS V. WISCONSIN, 195 U.S. 194, 205-6. 

THE LAST OBJECTION BROUGHT FORWARD BY SOFT-LITE TO THE DECREE IS THAT
PARAGRAPH 9, WHICH IS SET OUT IN FULL IN NOTE 3, IS AN UNCONSTITUTIONAL
EXERCISE OF JUDICIAL POWER BY VIRTUE OF THE PROVISIONS OF THE FOURTH
AND FIFTH AMENDMENTS OR, AT ANY RATE, AN IMPROPER USE OF THE TRIAL
COURT'S DISCRETION. 

THE FIRST SENTENCE REQUIRES SOFT-LITE TO PERMIT AUTHORIZED
REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE TO HAVE ACCESS TO ALL
RECORDS AND DOCUMENTS OF SOFT-LITE WHICH ARE IN SOFT-LITE'S CONTROL,
"RELATING TO ANY OF THE MATTERS CONTAINED IN THIS JUDGMENT  ...
SUBJECT TO ANY LEGALLY RECOGNIZED PRIVILEGE."  FN6  THE SECOND SENTENCE
WE CONSTRUE TO FORBID SOFT-LITE OR ITS OFFICERS FROM DIRECTING ITS
PERSONNEL TO REFUSE TO DISCUSS WITH INVESTIGATORS OF THE DEPARTMENT THE
AFFAIRS OF SOFT-LITE RELATING TO ANY OF THE MATTERS CONTAINED IN THE
JUDGMENT AND FROM BARRING FROM THEIR PROPERTY INVESTIGATORS WHO MAY
APPEAR UNPROVIDED WITH SEARCH WARRANTS.  THIS SECOND SENTENCE PURPORTS
TO GIVE NO OTHER RIGHT OF INVESTIGATION OF THE AFFAIRS OF THE
APPELLANTS.  THE THIRD AND LAST SENTENCE DIRECTS THE DEFENDANTS TO
SUBMIT ON THE WRITTEN REQUEST OF THE DEPARTMENT SUCH REPORTS IN WRITING
"WITH RESPECT TO ANY OF THE MATTERS CONTAINED IN THIS JUDGMENT" AS MAY
BE NECESSARY TO ENFORCE IT. 

THERE IS NOTHING IN THE U.S.C. RELATING TO MONOPOLIES AND
COMBINATIONS IN RESTRAINT OF TRADE WHICH MAKES PROVISION FOR SUCH BROAD
VISITATORIAL POWERS.  WITHOUT THIS STATUTORY AUTHORITY, UNITED STATES
OFFICIALS COULD NOT REQUIRE THE CORPORATION TO SUBMIT TO THIS
EXAMINATION WITHOUT A SEARCH WARRANT.  GO-BART IMPORTING CO. V. UNITED
STATES, 282 U.S. 344, 356-58; UNITED STATES V. LOUISVILLE & N.R. CO.,
236 U.S. 318, 329-38.  CF. GUTHRIE V. HARKNESS, 199 U.S. 148, 158.  THE
PROVISION WAS EVIDENTLY SOUGHT AND ALLOWED TO ENABLE THE GOVERNMENT TO
OBTAIN INFORMATION AS TO THE OPERATIONS OF SOFT-LITE SUBSEQUENT TO THE
JUDGMENT DECLARING SOFT-LITE'S DISTRIBUTION OPERATIONS UNLAWFUL, TO
GUIDE THE RESPONSIBLE OFFICIALS OF THE DEPARTMENT OF JUSTICE IN THEIR
DUTY OF PROTECTING THE PUBLIC AGAINST A CONTINUANCE OF THE ILLEGAL
COMBINATION AND CONSPIRACY WITHOUT THE NECESSITY OF THE EXPENSE AND
DIFFICULTY OF EXTENDED INVESTIGATION OR RENEWED HEARINGS UNDER THE
JURISDICTION RETAINED FOR MODIFICATION OR ENFORCEMENT.  IF REASONABLY
NECESSARY TO WIPE OUT THE ILLEGAL DISTRIBUTION SYSTEM, WE SEE NO
CONSTITUTIONAL OBJECTION TO THE EMPLOYMENT BY EQUITY OF THIS METHOD. 
IN THE IMMEDIATELY PRECEDING PARAGRAPHS OF THIS OPINION WHICH DISCUSS
THE POWER OF THE TRIAL COURT TO COMPEL THE CANCELLATION OF "FAIR TRADE"
AGREEMENTS, EXECUTED DURING AND AS A PART OF THE UNLAWFUL DISTRIBUTION
SYSTEM, WE CITED IMPORTANT PRECEDENTS OF THIS COURT WHICH UPHOLD
EQUITY'S AUTHORITY TO USE QUITE DRASTIC MEASURES TO ACHIEVE FREEDOM
FROM THE INFLUENCE OF THE UNLAWFUL RESTRAINT OF TRADE.  THESE
PRECEDENTS ARE APPLICABLE HERE.  THE TEST IS WHETHER OR NOT THE
REQUIRED ACTION REASONABLY TENDS TO DISSIPATE THE RESTRAINTS AND
PREVENT EVASIONS.  DOUBTS ARE TO "BE RESOLVED IN FAVOR OF THE
GOVERNMENT AND AGAINST THE CONSPIRATORS."  LOCAL 167 V. UNITED STATES,
291 U.S. 293, 299; WARNER & CO. V. LILLY & CO., 265 U.S. 526, 532. 

THE FIFTH AMENDMENT DOES NOT PROTECT A CORPORATION AGAINST SELF
INCRIMINATION THROUGH COMPULSORY PRODUCTION OF ITS PAPERS, WILSON V.
UNITED STATES, 221 U.S. 361, 375; HALE V. HENKEL, 201 U.S. 43, 74-75;
WHEELER V. UNITED STATES, 226 U.S. 478, ALTHOUGH IT DOES PROTECT AN
INDIVIDUAL, BOYD V. UNITED STATES, 116 U.S. 616.  A CORPORATION IS
CHARTERED WITH SPECIAL POWERS ONLY.  ITS CREATOR, THE STATE, MAY
EXAMINE INTO ITS RECORDS TO SEE WHETHER OR NOT THE PRIVILEGES HAVE BEEN
ABUSED.  OUR DUAL FORM OF GOVERNMENT NECESSARILY AUTHORIZES THE UNITED
STATES TO EXERCISE THESE POWERS IN THE VINDICATION OF ITS OWN LAWS. 
HALE V. HENKEL, SUPRA.  THE BOYD CASE POINTED OUT THAT, AS TO
INDIVIDUALS, THE EXTORTION OF HIS PRIVATE PAPERS BY SUBPOENA WAS NOT
ONLY COMPELLING SELF-INCRIMINATION BUT WAS ALSO AN UNREASONABLE SEARCH
AND SEIZURE WITHIN THE FOURTH AMENDMENT.  116 U.S. AT 634.  UPON
FURTHER EXAMINATION OF THE PROBLEM OF THE INTER-RELATION OF THE TWO
AMENDMENTS IN HALE V. HENKEL, 201 U.S. AT 72-73, THIS COURT REACHED THE
CONCLUSION THAT THE FOURTH AMENDMENT WAS NOT INTENDED TO INTERFERE WITH
"THE POWER OF COURTS TO COMPEL, THROUGH A SUBPOENA DUCES TECUM, THE
PRODUCTION, UPON A TRIAL IN COURT, OF DOCUMENTARY EVIDENCE," SO LONG AS
THE SCOPE OF THE SUBPOENA WAS REASONABLE.  THE POWER OF CONGRESS TO
REQUIRE DISCLOSURE OF CORPORATE DOCUMENTS, A QUESTION ADVERTED TO IN
HALE V. HENKEL, P. 77, BUT NOT DECIDED, WAS UPHELD IN UNITED STATES V.
LOUISVILLE & N.R. CO., SUPRA.  THE SCOPE OF EQUITY'S POWER, SHERMAN
ACT, SEC. 4, 26 STAT. 209, TO OBVIATE CONTINUED RESTRAINT ON TRADE IN
ACCORDANCE WITH THE CONGRESSIONAL DIRECTION AS TO THE USE OF THE
INJUNCTION AGAINST VIOLATORS OF THE SHERMAN ACT IS NO MORE RESTRICTED
IN ITS FIELD THAN THAT OF CONGRESS. 

THE APPROPRIATENESS OF THE VISITATORIAL REMEDY RAISES A DIFFERENT
QUESTION.  OF COURSE, A MERE PROHIBITION OF THE PRECISE SCHEME WOULD BE
INEFFECTUAL TO PREVENT RESTRAINTS.  UNITED STATES V. TRANS-MISSOURI
FREIGHT ASSN., 166 U.S. 290, 308.  THE CIRCUMSTANCES OF EACH CASE
CONTROL THE BREADTH OF THE ORDER.  LABOR BOARD V. EXPRESS PUBLISHING
CO., 312 U.S. 426, 436.  THE OTHER PROVISIONS OF THE DECREE ARE
IMPORTANT.  IF IN THE PRESENT CASE, SOFT-LITE WAS REQUIRED FOR THE
INDEFINITE FUTURE TO SELL ITS GOODS TO ANY BUYER WITH CASH TO PAY THE
PURCHASE PRICE, THERE WOULD NOT BE THE SAME NEED FOR VISITATORIAL
POWERS.  THE FIRST SENTENCE OF THE PROVISION OF THE DECREE UNDER
DISCUSSION COMPELS THE DISCLOSURE ONLY OF PAPERS RELATING TO THE
MATTERS CONTAINED IN THE JUDGMENT.  THIS WE THINK IS LIMITED
SUFFICIENTLY TO SATISFY THE RULE AS TO NECESSARY CERTAINTY.  WILSON V.
UNITED STATES, SUPRA.  WE CANNOT SAY THAT THE FIRST TWO SENTENCES OF
THE 9TH PARAGRAPH OF THE DECREE, AS HEREIN CONSTRUED, WERE BEYOND THE
DISCRETION OF THE TRIAL JUDGE.  WE ARE OF THE VIEW THAT THE THIRD
SENTENCE, RELATING TO REPORTS, IS TOO INDEFINITE FOR JUDICIAL
ENFORCEMENT AND THEREFORE IMPROPER.  CF. SWIFT & CO. V. UNITED STATES,
196 U.S. 375, 400, 402. 

                           II. 

THE UNITED STATES SEEKS EXTENSIONS OF THE DECREE AS ENTERED AGAINST
SOFT-LITE.  IN THE GOVERNMENT'S VIEW THE EXISTING PROHIBITIONS,
ALTHOUGH COUPLED WITH THE RETENTION OF JURISDICTION FOR FURTHER ORDERS
OR DIRECTIONS, INCLUDING MODIFICATION AND ENFORCEMENT, ARE INSUFFICIENT
TO PREVENT CONTINUANCE OF THE PURPOSES AND EFFECTS OF THE UNLAWFUL SOFT
LITE DISTRIBUTION SYSTEM.  SPECIFICALLY, WE ARE ASKED TO DIRECT THE
INCLUSION OF REQUIREMENTS THAT SOFT-LITE FILE "WITH THE DISTRICT COURT
A WRITTEN INSTRUMENT PROVIDING THAT IT WILL SELL ITS PRODUCT, WITHOUT
DISCRIMINATION, TO ANY PERSON OFFERING TO PAY CASH THEREFOR." 

THE SHERMAN ACT IS INTENDED TO PREVENT UNREASONABLE RESTRAINTS OF
COMMERCE.  THE CLAYTON AMENDMENT, 38 STAT. 731, OUTLAWED AGREEMENTS
WITH CUSTOMERS WHICH RESTRICTED THE CUSTOMER FROM DEALING WITH THE
PRODUCTS OF A COMPETITOR OF THE SELLER.  PERSONS INJURED BY UNLAWFUL
RESTRAINT MAY RECOVER THREEFOLD DAMAGES.  THE FEDERAL COURTS HAVE
JURISDICTION OF SUITS TO ENJOIN VIOLATIONS.  CONGRESS HAS BEEN LIBERAL
IN ENACTING REMEDIES TO ENFORCE THE ANTI-MONOPOLY STATUTES.  BUT IN NO
INSTANCE HAS IT INDICATED AN INTENTION TO INTERFERE WITH ORDINARY
COMMERCIAL PRACTICES.  IN A BUSINESS, SUCH AS SOFT-LITE, WHICH DEALS IN
A SPECIALTY OF A LUXURY OR NEAR-LUXURY CHARACTER, THE RIGHT TO SELECT
ITS CUSTOMERS MAY WELL BE THE MOST ESSENTIAL FACTOR IN THE MAINTENANCE
OF THE HIGHEST STANDARDS OF SERVICE.  WE ARE, AS THE DISTRICT COURT
APPARENTLY WAS, LOATH TO DENY TO SOFT-LITE THIS PRIVILEGE OF
SELECTION.  UNITED STATES V. COLGATE & CO., 250 U.S. 300, 307; FEDERAL
TRADE COMM'N V. RAYMOND CO., 263 U.S. 565, 573.  WE HAVE NO REASON TO
DOUBT THAT SOFT-LITE WILL CONFORM METICULOUSLY TO THE REQUIREMENTS OF
THE DECREE.  WHEN IT IS SHOWN TO THE TRIAL COURT THAT IT HAS NOT DONE
SO WILL BE AN APPROPRIATE TIME FOR THE GOVERNMENT TO URGE THIS ADDITION
TO THE DECREE. 

WHAT WE HAVE JUST SAID AS TO THE GOVERNMENT'S REQUEST FOR A
REQUIREMENT OF SALES BY SOFT-LITE TO ALL APPLICANTS FOR ITS COMMODITIES
IS RELEVANT TO THE GOVERNMENT'S OTHER REQUEST FOR MODIFICATION OF THE
DECREE TO MAKE PERMANENT THE SIX MONTHS' PROHIBITION AGAINST SOFT
LITE'S SYSTEMATICALLY SUGGESTING RESALE PRICES ON ITS LENSES AND THE
EXECUTION OF RESALE PRICE MAINTENANCE CONTRACTS UNDER THE MILLER
TYDINGS ACT.  THE PATH IS NARROW BETWEEN THE PERMISSIBLE SELECTION OF
CUSTOMERS UNDER THE DECISION IN COLGATE & CO. AND UNLAWFUL ARRANGEMENTS
AS TO PRICES UNDER THIS DECREE, BUT WE THINK SOFT-LITE IS ENTITLED TO
TRAVERSE IT, AFTER A REASONABLE INTERIM TO DISSIPATE UNLAWFUL
ADVANTAGES, WITH SUCH AID AS CONGRESS HAS GIVEN BY THE MILLER-TYDINGS
ACT.  THE SUGGESTION FOR A PERMANENT INJUNCTION IS UNACCEPTABLE. 

THESE CONCLUSIONS LEAD US TO MODIFY THE JUDGMENT BY STRIKING OUT THE
LAST SENTENCE OF PARAGRAPH 9, QUOTED IN NOTE 3.  AS SO MODIFIED THE
JUDGMENT IS AFFIRMED. 

FN1  26 STAT. 209, AS AMENDED, 50 STAT. 693: 

"SECTION 1.  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 HEREBY DECLARED TO BE
ILLEGAL:  PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL RENDER ILLEGAL,
CONTRACTS OR AGREEMENTS PRESCRIBING MINIMUM PRICES FOR THE RESALE OF A
COMMODITY WHICH BEARS, OR THE LABEL OR CONTAINER OF WHICH BEARS, THE
TRADE MARK, BRAND, OR NAME OF THE PRODUCER OR DISTRIBUTOR OF SUCH
COMMODITY AND WHICH IS IN FREE AND OPEN COMPETITION WITH COMMODITIES OF
THE SAME GENERAL CLASS PRODUCED OR DISTRIBUTED BY OTHERS, WHEN
CONTRACTS OR AGREEMENTS OF THAT DESCRIPTION ARE LAWFUL AS APPLIED TO
INTRASTATE TRANSACTIONS, UNDER ANY STATUTE, LAW, OR PUBLIC POLICY NOW
OR HEREAFTER IN EFFECT IN ANY STATE, TERRITORY, OR THE DISTRICT OF
COLUMBIA, IN WHICH SUCH RESALE IS TO BE MADE, OR TO WHICH THE COMMODITY
IS TO BE TRANSPORTED FOR SUCH RESALE, AND THE MAKING OF SUCH CONTRACTS
OR AGREEMENTS SHALL NOT BE AN UNFAIR METHOD OF COMPETITION UNDER
CREATE A FEDERAL TRADE COMMISSION, TO DEFINE ITS POWERS AND DUTIES, AND
FOR OTHER PURPOSES,' APPROVED SEPTEMBER 26, 1914:  PROVIDED FURTHER,
THAT THE PRECEDING PROVISO SHALL NOT MAKE LAWFUL ANY CONTRACT OR
AGREEMENT, PROVIDING FOR THE ESTABLISHMENT OR MAINTENANCE OF MINIMUM
RESALE PRICES ON ANY COMMODITY HEREIN INVOLVED, BETWEEN MANUFACTURERS,
OR BETWEEN PRODUCERS, OR BETWEEN WHOLESALERS, OR BETWEEN BROKERS, OR
BETWEEN FACTORS, OR BETWEEN RETAILERS, OR BETWEEN PERSONS, FIRMS, OR
CORPORATIONS IN COMPETITION WITH EACH OTHER.  ...  " 

AND THE DISTRICT OF COLUMBIA. 

FN2  IN 1939 A CHANGE WAS MADE FROM THE LICENSE AGREEMENT NOT TO DEAL
IN ANY LENS SIMILAR IN TINT, COLOR OR SHADE TO SOFT-LITE LENSES.  THE
CHANGE FOLLOWED AN AGREED ORDER OF THE FEDERAL TRADE COMMISSION OF JUNE
23, 1938, DOCKET NO. 2717, IN THE MATTER OF SOFT-LITE LENS CO., INC. 

FN3  "9.  THAT FOR THE PURPOSE OF SECURING COMPLIANCE WITH THIS
JUDGMENT, AUTHORIZED REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE, UPON
THE WRITTEN REQUEST OF THE ATTORNEY GENERAL OR AN ASSISTANT ATTORNEY
GENERAL, SHALL BE PERMITTED ACCESS, WITHIN THE OFFICE HOURS OF THE SAID
DEFENDANTS, AND UPON REASONABLE NOTICE, TO BOOKS, LEDGERS, ACCOUNTS,
CORRESPONDENCE, MEMORANDA, AND OTHER RECORDS AND DOCUMENTS IN THE
POSSESSION OR THE CONTROL OF THE SAID DEFENDANTS, OR ANY OF THEM,
RELATING TO ANY OF THE MATTERS CONTAINED IN THIS JUDGMENT, SUCH ACCESS
TO BE SUBJECT TO ANY LEGALLY RECOGNIZED PRIVILEGE.  ANY AUTHORIZED
REPRESENTATIVE OF THE DEPARTMENT OF JUSTICE, SUBJECT TO THE REASONABLE
CONVENIENCE OF THE SAID DEFENDANTS, SHALL BE PERMITTED TO INTERVIEW
OFFICERS OR EMPLOYEES OF SAID DEFENDANTS WITHOUT INTERFERENCE,
RESTRAINT OR LIMITATION BY SAID DEFENDANTS; PROVIDED, HOWEVER, THAT ANY
SUCH OFFICER OR EMPLOYEE MAY HAVE COUNSEL PRESENT AT SUCH INTERVIEW. 
SAID DEFENDANTS, UPON THE WRITTEN REQUEST OF THE ATTORNEY GENERAL, OR
AN ASSISTANT ATTORNEY GENERAL, SHALL SUBMIT SUCH REPORTS WITH RESPECT
TO ANY OF THE MATTERS CONTAINED IN THIS JUDGMENT AS FROM TIME TO TIME
MAY BE NECESSARY FOR THE PURPOSE OF ENFORCEMENT OF THIS JUDGMENT;
PROVIDED, HOWEVER, THAT THE INFORMATION OBTAINED BY THE MEANS PERMITTED
IN THIS PARAGRAPH SHALL NOT BE DIVULGED BY ANY REPRESENTATIVE OF THE
DEPARTMENT OF JUSTICE TO ANY PERSON OTHER THAN A DULY AUTHORIZED
REPRESENTATIVE OF THE DEPARTMENT OF JUSTICE EXCEPT IN THE COURSE OF
LEGAL PROCEEDINGS IN WHICH THE UNITED STATES IS A PARTY OR AS OTHERWISE
REQUIRED BY LAW."    FN4  CF. ROBINSON-PATMAN ACT, SEC. 1, 49 STAT.
1526. 

FN5  SEE THE DECISION BELOW, 45 F.SUPP.  387, 399.  WE DO NOT
UNDERSTAND THE OPINION OF THE DISTRICT COURT TO IMPUGN THE VALIDITY OF
BILATERAL CONTRACTS, IDENTICAL IN FORM, BETWEEN A PRODUCER OR
DISTRIBUTOR, ON THE ONE HAND, AND THEIR CUSTOMERS ON THE OTHER, ENTERED
INTO UNDER THE MILLER-TYDINGS ACT. 

FN6  THE WORDING OF THE SENTENCE INCLUDES THE PAPERS OF THE
INDIVIDUAL DEFENDANTS WHO ARE OFFICERS OF SOFT-LITE.  THE UNITED STATES
DISCLAIMS IN ITS BRIEF, PAGE 55, SO BROAD A MEANING.  WE ACCEPT THE
SUGGESTED INTERPRETATION THAT THE PARAGRAPH RELATES ONLY TO THE PAPERS
BELONGING TO THE CORPORATION.  CF. WILSON V. UNITED STATES, 221 U.S.
361, 376-85. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















UNITED STATES V. BLAIR, 321 U.S. 730 


NO. 75.  ARGUED FEBRUARY 1, 1944.  - DECIDED APRIL 10, 1944.  - 99
CT.CLS.  71, REVERSED IN PART. 


1.  THE GOVERNMENT CONSTRUCTION CONTRACT HERE INVOLVED IMPOSED NO DUTY
ON THE GOVERNMENT TO TAKE AFFIRMATIVE STEPS TO PREVENT A CONTRACTOR
FROM UNREASONABLY DELAYING OR INTERFERING WITH THE ATTEMPT OF ANOTHER
CONTRACTOR TO COMPLETE CONSTRUCTION IN ADVANCE OF THE TIME SPECIFIED;
AND THE GOVERNMENT WAS NOT LIABLE FOR DAMAGES FOR SUCH DELAY.  P. 733. 

THE FACT THAT AFTER THE EXECUTION OF THE CONTRACT THE CONTRACTOR GAVE
NOTICE TO ALL OTHER PARTIES OF HIS INTENTION TO FINISH AHEAD OF
SCHEDULE DOES NOT ALTER THE OBLIGATION OF THE GOVERNMENT. 

2.  AN AWARD OF DAMAGES BY THE COURT OF CLAIMS AGAINST THE GOVERNMENT
ON ITEMS WHICH WERE THE SUBJECT OF "DISPUTES CONCERNING QUESTIONS
ARISING UNDER THIS CONTRACT" - THOUGH THE ACTIONS OF THE GOVERNMENT
AGENTS UPON WHICH THE CLAIMS WERE BASED BE ASSUMED TO HAVE BEEN
UNAUTHORIZED, UNREASONABLE AND ARBITRARY - HELD ERRONEOUS IN VIEW OF
THE FAILURE OF THE CONTRACTOR TO APPEAL TO THE DEPARTMENTAL HEAD AS
REQUIRED BY ARTICLE 15 OF THE CONTRACT, IT NOT APPEARING THAT THE
APPEAL PROCEDURE PROVIDED WAS IN FACT INADEQUATE.  P. 735. 

3.  THE COURT OF CLAIMS PROPERLY ALLOWED A CLAIM OF THE CONTRACTOR,
TO THE USE OF A SUBCONTRACTOR, FOR EXTRA LABOR COSTS INCURRED BY THE
SUBCONTRACTOR UNDER CONDITIONS ERRONEOUSLY IMPOSED BY THE GOVERNMENT
SUPERINTENDENT.  P. 737. 

UNITED STATES V. BLAIR, INDIVIDUALLY AND TO THE USE OF ROANOKE MARBLE
& GRANITE CO., INC. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 320 U.S. 720, TO REVIEW A JUDGMENT FOR THE PLAINTIFF IN A
SUIT AGAINST THE GOVERNMENT UPON A CONTRACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, A GENERAL CONTRACTOR OF LONG EXPERIENCE IN CONSTRUCTING
FEDERAL BUILDINGS, WAS AWARDED A CONTRACT BY THE UNITED STATES TO
CONSTRUCT CERTAIN BUILDINGS AT THE VETERANS' ADMINISTRATION FACILITY AT
ROANOKE, VIRGINIA.  AFTER COMPLETING THE CONTRACT, RESPONDENT FILED A
CLAIM WITH THE VETERANS' ADMINISTRATION FOR CERTAIN EXPENSES WHICH HE
CLAIMED WERE CAUSED BY THE DELAY OF A MECHANICAL CONTRACTOR AND FOR
OTHER EXPENSES ALLEGED TO HAVE BEEN IMPOSED ON HIM BY THE ARBITRARY,
CAPRICIOUS AND UNFAIR CONDUCT OF GOVERNMENT AGENTS AT THE WORK SITE. 
THE CLAIM WAS REJECTED AND THIS SUIT IN THE COURT OF CLAIMS FOLLOWED. 
JUDGMENT IN THE SUM OF $130,911.08 WAS AWARDED BY THAT COURT TO
RESPONDENT, 99 CT. CLS. 71.  WE GRANTED CERTIORARI BECAUSE OF IMPORTANT
QUESTIONS OF INTERPRETATION OF THE GOVERNMENT CONSTRUCTION CONTRACT
USED IN THIS CASE.  FN1

    I. 

RESPONDENT'S CONTRACT PROVIDED THAT THE CONSTRUCTION WORK WAS TO BE
COMPLETED WITHIN 420 DAYS FROM THE RECEIPT OF NOTICE TO PROCEED. 
CONCURRENTLY, ONE R. J. REDMON WAS AWARDED A MECHANICAL CONTRACT  FN2
BY THE UNITED STATES TO PERFORM THE PLUMBING, HEATING AND ELECTRICAL
WORK IN THE BUILDINGS TO BE CONSTRUCTED BY RESPONDENT.  REDMON'S WORK
WAS TO BE COMMENCED PROMPTLY AFTER RECEIPT OF NOTICE TO PROCEED AND WAS
TO BE COMPLETED AT A DATE NOT LATER THAN THAT PROVIDED IN RESPONDENT'S
CONTRACT. 

RESPONDENT PROCEEDED PROMPTLY WITH THE CONSTRUCTION WORK.  HE PLANNED
TO COMPLETE THE WORK WITHIN 314 DAYS INSTEAD OF THE 420 DAYS ALLOWED
HIM BY THE CONTRACT.  HOWEVER, NO REPRESENTATIVE OF REDMON REPORTED AT
THE WORK SITE UNTIL NEARLY THREE MONTHS AFTER HE RECEIVED NOTICE TO
PROCEED.  THE CONTRACTING OFFICER HAD PREVIOUSLY MADE MANY URGENT
DEMANDS THAT REDMON PROCEED WITH HIS WORK AND HAD ADVISED HIM THAT THE
PROGRESS OF RESPONDENT'S CONSTRUCTION WORK WAS BEING DELAYED BY HIS
FAILURE TO START WORK; REDMON HAD ALSO BEEN THREATENED WITH TERMINATION
OF HIS CONTRACT.  HE FINALLY STARTED WORK, BUT MADE SLOW PROGRESS.  AT
NO TIME DID REDMON HAVE ADEQUATE EQUIPMENT OR A SUFFICIENT NUMBER OF
MEN ON THE JOB PROPERLY TO CARRY ON THE WORK CALLED FOR BY HIS
CONTRACT, NOR WAS HE FINANCIALLY ABLE AT THIS TIME TO COMPLETE HIS
WORK.  THE COURT OF CLAIMS FOUND THAT REASONABLE INQUIRY BY THE
GOVERNMENT WOULD HAVE DISCLOSED THESE FACTS BUT THAT NO SUCH INQUIRY
WAS MADE BECAUSE OF FALSE STATEMENTS AND REPORTS MADE TO THE
CONTRACTING OFFICER BY THE GOVERNMENT AGENTS IN CHARGE OF THE WORK AT
THE SITE. 

SEVERAL MONTHS LATER, REDMON ADVISED THE CONTRACTING OFFICER THAT HE
WAS UNABLE TO PROCEED WITH HIS CONTRACT.  REDMON'S SURETY SECURED A
SUBSTITUTE AND EVERY EFFORT WAS MADE TO OVERCOME THE DELAY.  AS A
RESULT, RESPONDENT WAS ABLE TO FINISH HIS CONSTRUCTION WORK WITHIN THE
REQUIRED 420 DAYS BUT NOT WITHIN THE 314 DAYS AS HE HAD PLANNED.  THE
COURT BELOW FOUND THAT RESPONDENT WAS UNREASONABLY DELAYED FOR A PERIOD
OF THREE AND ONE-HALF MONTHS DUE TO THE FAILURE OF THE UNITED STATES
PROMPTLY TO TERMINATE REDMON'S RIGHT TO PROCEED, THAT THE COST OF THE
DELAY TO RESPONDENT WAS $51,249.52, AND THAT THE UNITED STATES WAS
LIABLE THEREFOR. 

WE ARE OF THE OPINION, HOWEVER, THAT NOTHING IN THE GOVERNMENT
CONSTRUCTION CONTRACT USED IN THIS CASE IMPOSED AN OBLIGATION OR DUTY
ON THE GOVERNMENT TO AID RESPONDENT IN COMPLETING HIS CONTRACT PRIOR TO
THE STIPULATED COMPLETION DATE AND THAT IT WAS ERROR FOR THE COURT OF
CLAIMS TO AWARD DAMAGES TO RESPONDENT BASED UPON A BREACH OF THIS NON
EXISTENT OBLIGATION. 

IF THE PARTIES DID INTEND TO IMPOSE SUCH AN OBLIGATION OR DUTY ON THE
GOVERNMENT, THEY FAILED TO EMBODY THAT INTENTION EXPRESSLY IN THE
CONTRACT.  ARTICLE 13 OF THE CONTRACT MERELY OBLIGATES THE CONTRACTOR
TO COOPERATE WITH OTHER GOVERNMENT CONTRACTORS AND TO REFRAIN FROM
COMMITTING OR PERMITTING ANY ACT WHICH WOULD DELAY SUCH OTHER
CONTRACTORS.  ARTICLE 9 IMPOSES LIQUIDATED DAMAGES UPON THE CONTRACTOR
FOR DELAY IN COMPLETING HIS WORK UNLESS DUE TO SUCH UNFORESEEABLE
CAUSES AS "ACTS OF THE GOVERNMENT."  NOWHERE IS THERE SPELLED OUT ANY
DUTY ON THE GOVERNMENT TO TAKE AFFIRMATIVE STEPS TO PREVENT A
CONTRACTOR FROM UNREASONABLY DELAYING OR INTERFERING WITH THE ATTEMPT
OF ANOTHER CONTRACTOR TO FINISH AHEAD OF HIS SCHEDULE. 

NOR IS THERE ANYTHING IN THE CONTEXT OF THE CONTRACT TO LEAD US TO
BELIEVE THAT THE PARTIES MEANT MORE THAN THEY SAID, OR THAT THE
CONTRACT IMPLIES SOMETHING THAT WAS NOT EXPRESSED.  THE GOVERNMENT AND
RESPONDENT COVENANTED THAT THE CONSTRUCTION WORK WOULD BE COMPLETED
WITHIN 420 DAYS; REDMON'S CONTRACT WAS GROUNDED ON THIS SAME TIME
ESTIMATE.  THEY CANNOT BE SAID TO HAVE EXECUTED THESE CONTRACTS IN
CONTEMPLATION OF THE THEN UNREVEALED INTENTION OF RESPONDENT TO
COMPLETE HIS WORK THREE AND ONE-HALF MONTHS EARLY.  THE FACT THAT
RESPONDENT SUBSEQUENTLY GAVE NOTICE OF THIS INTENTION TO ALL THE OTHER
PARTIES CONCERNED COULD NOT GIVE RISE TO A NEW OBLIGATION ON THE
GOVERNMENT TO COMPEL ACCELERATED PERFORMANCE FROM REDMON. 

RESPONDENT HAD THE UNDOUBTED RIGHT TO FINISH HIS CONSTRUCTION WORK IN
LESS TIME THAN THE STIPULATED 420 DAYS, BUT HE COULD NOT BE FORCED TO
DO SO UNDER THE TERMS OF THE CONTRACT.  TO HOLD THAT HE CAN EXACT
DAMAGES FROM THE GOVERNMENT FOR FAILING TO COOPERATE FULLY IN CHANGING
THE CONTRACT BY SHORTENING THE TIME PROVISIONS WOULD BE TO IMPLY A
GROSSLY UNEQUAL OBLIGATION.  WE CANNOT SANCTION SUCH LIABILITY WITHOUT
MORE EXPLICIT LANGUAGE IN THE CONTRACT.  COMPARE CROOK CO. V. UNITED
STATES, 270 U.S. 4; UNITED STATES V. RICE, 317 U.S. 61. 

         II. 

THE COURT OF CLAIMS, IN ADDITION TO AWARDING DAMAGES FOR THE
GOVERNMENT'S DELAY IN TERMINATING REDMON'S CONTRACT, AWARDED RESPONDENT
$79,661.56 DAMAGES FOR EXTRA LABOR AND MATERIALS, EXCESS WAGES AND
MISCELLANEOUS COSTS FOUND TO BE THE RESULT OF UNAUTHORIZED ACTS,
RULINGS AND INSTRUCTIONS OF THE GOVERNMENT SUPERINTENDENT AND HIS
ASSISTANT.  THE COURT ALSO FOUND THAT THESE ACTS, RULINGS AND
INSTRUCTIONS WERE UNREASONABLE AND IN MANY INSTANCES ARBITRARY,
CAPRICIOUS AND SO GROSSLY ERRONEOUS AS TO IMPLY BAD FAITH. 

ASSUMING WITHOUT DECIDING THAT THE ACTIONS COMPLAINED OF WERE
UNAUTHORIZED, UNREASONABLE AND ARBITRARY, WE CANNOT CONCLUDE THAT
RECOVERY OF THE RESULTING DAMAGES WAS PROPER IN THIS CASE.  ARTICLE 15
OF THE CONTRACT IN SUIT PROVIDES THAT ALL DISPUTES "CONCERNING
QUESTIONS ARISING UNDER THIS CONTRACT SHALL BE DECIDED BY THE
CONTRACTING OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE, SUBJECT TO
WRITTEN APPEAL BY THE CONTRACTOR WITHIN 30 DAYS TO THE HEAD OF THE
DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE
DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO AS TO
SUCH QUESTIONS."  ALL OF THE ITEMS ON WHICH THE RECOVERY OF $79,661.56
WAS BASED WERE THE SUBJECT OF "DISPUTES CONCERNING QUESTIONS ARISING
UNDER THIS CONTRACT."  RESPONDENT APPEALED SOME OF THE DECISIONS OR
INSTRUCTIONS OF THE GOVERNMENT SUPERINTENDENT TO THE CONTRACTING
OFFICER, WHICH RESULTED IN AT LEAST ONE RULING FAVORABLE TO
RESPONDENT.  FN3  AS TO THE ADVERSE RULINGS, HOWEVER, RESPONDENT MADE
NO FURTHER APPEAL TO THE HEAD OF THE APPROPRIATE DEPARTMENT OR HIS
AUTHORIZED REPRESENTATIVE.  MOREOVER, THE REMAINING ITEMS WHICH WERE
THE SUBJECT OF SHARP DISPUTE BETWEEN RESPONDENT AND THE SUPERINTENDENT
WERE NOT EVEN APPEALED BY RESPONDENT TO THE CONTRACTING OFFICER.  AND
WHERE THE CONTRACTING OFFICER COULD BE SAID TO HAVE ACQUIESCED IN THE
SUPERINTENDENT'S RULINGS, NO ATTEMPT WAS MADE TO APPEAL FURTHER TO THE
DEPARTMENTAL HEAD. 

RESPONDENT HAS THUS CHOSEN NOT TO FOLLOW "THE ONLY AVENUE FOR
RELIEF," UNITED STATES V. CALLAHAN WALKER CO., 317 U.S. 56, 61,
AVAILABLE FOR THE SETTLEMENT OF DISPUTES CONCERNING QUESTIONS ARISING
UNDER THIS CONTRACT.  IN ARTICLE 15 THE PARTIES CLEARLY SET FORTH AN
ADMINISTRATIVE PROCEDURE FOR RESPONDENT TO FOLLOW.  SUCH A PROCEDURE
PROVIDED A COMPLETE AND REASONABLE MEANS OF CORRECTING THE ABUSES
ALLEGED TO EXIST IN THIS CASE.  ARBITRARY RULINGS AND ACTIONS OF
SUBORDINATE OFFICERS ARE OFTEN ADJUSTED MOST EASILY AND SATISFACTORY BY
THEIR SUPERIORS.  FURTHERMORE, ARTICLE 15 PROVIDED THE GOVERNMENT WITH
AN OPPORTUNITY TO MITIGATE OR AVOID DAMAGES BY CORRECTING ERRORS OR
EXCESSES OF ITS SUBORDINATE OFFICERS.  HAVING ACCEPTED AND AGREED TO
THESE PROVISIONS, RESPONDENT WAS NOT FREE TO DISREGARD THEM WITHOUT DUE
CAUSE, ACCUMULATE LARGE DAMAGES AND THEN SUE FOR RECOVERY IN THE COURT
OF CLAIMS.  NOR CAN THE GOVERNMENT BE SO EASILY DEPRIVED OF THE
BENEFITS OF THE ADMINISTRATIVE MACHINERY IT HAS CREATED TO ADJUDICATE
DISPUTES AND TO AVOID LARGE DAMAGE CLAIMS. 

THE COURT OF CLAIMS SOUGHT TO JUSTIFY RESPONDENT'S FAILURE TO PURSUE
THE PROCEDURE OUTLINED IN ARTICLE 15.  IT FOUND THAT THE SUPERINTENDENT
AND HIS ASSISTANT ACTED SO UNREASONABLY AS TO MAKE IT IMPOSSIBLE FOR
RESPONDENT TO INVOKE THE APPEAL PROCEDURE WITHOUT SUBJECTING HIMSELF TO
PUNISHMENT AND REPRISALS.  IT ALSO FOUND THAT RESPONDENT REASONABLY
CONCLUDED THAT "THE BEST AND MOST PRACTICAL WAY OF HANDLING THE MATTER
OF PROTESTS" WAS INFORMALLY THROUGH CONFERENCES WITH THE CONTRACTING
OFFICER IN WASHINGTON; THE LATTER, HOWEVER, WAS OFTEN UNABLE OR
UNWILLING TO HELP HIM.  THUS THE COURT RULED THAT RESPONDENT WAS
EXCUSED FROM FOLLOWING THE PROCEDURE SET FORTH IN THE CONTRACT.  WE
CANNOT AGREE.  EVEN IF THE CONDUCT OF THE GOVERNMENT SUPERINTENDENT OR
CONTRACTING OFFICER, OR THEIR ASSISTANTS, WAS SO FLAGRANTLY
UNREASONABLE OR SO GROSSLY ERRONEOUS AS TO IMPLY BAD FAITH, THE APPEAL
PROVISIONS OF THE CONTRACT MUST BE EXHAUSTED BEFORE RELIEF IS SOUGHT IN
THE COURTS.  THERE WAS NO FINDING OR EVIDENCE THAT APPEAL TO THE HEAD
OF THE APPROPRIATE DEPARTMENT OR TO HIS AUTHORIZED REPRESENTATIVE WOULD
HAVE BEEN FUTILE OR PREJUDICIAL.  COMPARE UNITED STATES V. SMITH, 256
U.S. 11, 16; RIPLEY V. UNITED STATES, 223 U.S. 695, 702.  WE CANNOT ON
THIS RECORD ATTRIBUTE TO THE DEPARTMENTAL HEAD THE ALLEGED UNREASONABLE
ATTITUDE OF HIS SUBORDINATES.  NOR CAN WE ASSUME THAT THE DEPARTMENTAL
HEAD WOULD HAVE ADOPTED AN ARBITRARY ATTITUDE OR REFUSED TO GRANT
RESPONDENT THE RELIEF TO WHICH HE MAY HAVE BEEN ENTITLED.  MOREOVER,
NOTHING IN THE RECORD SUGGESTS THAT HE COULD NOT EFFECTIVELY SUPERVISE
HIS SUBORDINATES OR PROVIDE FULL AND PROMPT RELIEF.  THUS, ABSENT A
VALID EXCUSE FOR NOT APPEALING THE DISPUTED ITEMS TO THE DEPARTMENTAL
HEAD PURSUANT TO ARTICLE 15, RESPONDENT CANNOT ASSERT A CLAIM FOR
DAMAGES IN THE COURT OF CLAIMS.  IF IT WERE SHOWN THAT THE APPEAL
PROCEDURE PROVIDED IN THE CONTRACT WAS IN FACT INADEQUATE FOR THE
CORRECTION OF THE ALLEGED UNREASONABLE ATTITUDE OF THE SUBORDINATE
GOVERNMENT OFFICIALS, WE WOULD HAVE QUITE A DIFFERENT CASE.  BUT HERE
WE MUST INSIST, NOT THAT RESPONDENT TURN SQUARE CORNERS, BUT THAT HE
EXHAUST THE AMPLE REMEDIES AGREED UPON. 

                                III. 

INCLUDED IN THE $79,661.56 AWARD OF MISCELLANEOUS DAMAGES WAS ONE
ITEM OF $9,730.27 ON A CLAIM TO THE USE OF THE ROANOKE MARBLE & GRANITE
COMPANY, INC., A SUBCONTRACTOR OF RESPONDENT WHO FURNISHED THE
MATERIALS AND PERFORMED THE LABOR NECESSARY TO INSTALL THE TILE,
TERRAZZO, MARBLE AND SOAPSTONE WORK CALLED FOR IN RESPONDENT'S CONTRACT
WITH THE GOVERNMENT.  THIS AWARD WAS BASED UPON EXTRA LABOR COSTS
INCURRED UNDER CONDITIONS ERRONEOUSLY EXACTED BY THE GOVERNMENT
SUPERINTENDENT.  RESPONDENT APPEALED THIS MATTER TO THE CONTRACTING
OFFICER, WHO FINALLY RENDERED A DECISION IN FAVOR OF RESPONDENT AND THE
SUBCONTRACTOR.  THE GOVERNMENT HAS NOT REIMBURSED EITHER RESPONDENT OR
THE SUBCONTRACTOR FOR THESE EXCESS LABOR COSTS; NOR HAS RESPONDENT PAID
THE SUBCONTRACTOR FOR SUCH COSTS.  THE COURT BELOW MADE NO FINDING, AND
THE SUBCONTRACT AS INTRODUCED IN THE RECORD DOES NOT EXPRESSLY
INDICATE, THAT RESPONDENT WAS LIABLE TO THE SUBCONTRACTOR FOR THE ACTS
OF THE GOVERNMENT UPON WHICH THE CLAIM WAS BASED. 

CLEARLY THE SUBCONTRACTOR COULD NOT RECOVER THIS CLAIM IN A SUIT
AGAINST THE UNITED STATES, FOR THERE WAS NO EXPRESS OR IMPLIED CONTRACT
BETWEEN HIM AND THE GOVERNMENT.  MERRITT V. UNITED STATES, 267 U.S.
338.  BUT IT DOES NOT FOLLOW THAT RESPONDENT IS BARRED FROM SUING FOR
THIS AMOUNT.  RESPONDENT WAS THE ONLY PERSON LEGALLY BOUND TO PERFORM
HIS CONTRACT WITH THE GOVERNMENT AND HE HAD THE UNDOUBTED RIGHT TO
RECOVER FROM THE GOVERNMENT THE CONTRACT PRICE FOR THE TILE, TERRAZZO,
MARBLE AND SOAPSTONE WORK WHETHER THAT WORK WAS PERFORMED PERSONALLY OR
THROUGH ANOTHER.  THIS NECESSARILY IMPLIES THE RIGHT TO RECOVER EXTRA
COSTS AND SERVICES WRONGFULLY DEMANDED OF RESPONDENT UNDER THE
CONTRACT, REGARDLESS OF WHETHER SUCH COSTS WERE INCURRED OR SUCH
SERVICES WERE PERFORMED PERSONALLY OR THROUGH A SUBCONTRACTOR. 
RESPONDENT'S CONTRACT WITH THE GOVERNMENT IS THUS SUFFICIENT TO SUSTAIN
AN ACTION FOR EXTRA COSTS WRONGFULLY DEMANDED UNDER THAT CONTRACT. 
HUNT V. UNITED STATES, 257 U.S. 125.    THE DECISION OF THE COURT OF
CLAIMS IS REVERSED AS TO ALL ITEMS EXCEPT THE CLAIM OF $9,730.27.  WE
AFFIRM THE JUDGMENT AS TO THE LATTER CLAIM. 

FN1  THE FORM OF GOVERNMENT CONTRACT HERE INVOLVED WAS "U.S.
GOVERNMENT FORM P.W.A. 51," THE CRITICAL PROVISIONS OF WHICH ARE
SUBSTANTIALLY THE SAME AS THOSE IN THE STANDARD FORM OF GOVERNMENT
CONSTRUCTION CONTRACT. 

FN2  THE TERMS AND CONDITIONS OF BOTH RESPONDENT'S AND REDMON'S
CONTRACTS WERE IDENTICAL, DIFFERING ONLY IN THE DESCRIPTION OF THE WORK
TO BE PERFORMED. 

FN3  SEE PART III, INFRA.    MR. JUSTICE FRANKFURTER, DISSENTING IN
PART: 

THOSE DEALING WITH THE GOVERNMENT MUST NO DOUBT TURN SQUARE CORNERS. 
WHILE AGENTS FOR PRIVATE PRINCIPALS MAY WAIVE OR MODIFY PROVISIONS IN
CONTRACTS WHICH CIRCUMSTANCES HAVE RENDERED HARSH, PROVISIONS IN
GOVERNMENT CONTRACTS CANNOT BE SO ALLEVIATED.  BUT IN ORDER TO ENFORCE
THE TERMS OF A GOVERNMENT CONTRACT COURTS MUST FIRST CONSTRUE THEM. 
AND THERE IS NEITHER LAW NOR POLICY THAT REQUIRES THAT COURTS IN
CONSTRUING THE TERMS OF A GOVERNMENT CONTRACT SHOULD TURN SQUARER
CORNERS THAN IF THE SAME TERMS WERE CONTAINED IN A CONTRACT BETWEEN
PRIVATE PARTIES.  "A GOVERNMENT CONTRACT SHOULD BE INTERPRETED AS ARE
CONTRACTS BETWEEN INDIVIDUALS, WITH A VIEW TO ASCERTAINING THE
INTENTION OF THE PARTIES AND TO GIVE IT EFFECT ACCORDINGLY, IF THAT CAN
BE DONE CONSISTENTLY WITH THE TERMS OF THE INSTRUMENT."  HOLLERBACH V.
UNITED STATES, 233 U.S. 165, 171-172.  LIKE ALL OTHER WRITINGS THAT DO
NOT HAVE THE PRECISION OF MATHEMATICAL TERMS, GOVERNMENT CONTRACTS HAVE
INTERSTICES THAT SECRETE RELEVANT IMPLICATIONS.  NEITHER A STATUTE
WHICH PROVIDES THAT CONTRACTS SHALL BE REDUCED TO WRITING, NOR THE
PAROL EVIDENCE RULE "PRECLUDES RELIANCE UPON A WARRANTY IMPLIED BY
LAW."  UNITED STATES V. SPEARIN, 248 U.S. 132, 138.  UNLESS THE TERMS
OF A CONTRACT ARE SO EXPLICIT AS TO PRECLUDE IT, THE PRESUPPOSITION OF
FAIR DEALING SURELY MUST UNDERLIE A GOVERNMENT AS WELL AS A PRIVATE
CONTRACT.  RIPLEY V. UNITED STATES, 223 U.S. 695, 701-702; UNITED
STATES V. SMITH, 256 U.S. 11, 16. 

ACCORDINGLY, PROVISIONS IN A GOVERNMENT CONTRACT DEFINING METHODS FOR
SETTLING CONTROVERSIES BY APPEAL TO THE CONTRACTING BRANCH OF THE
GOVERNMENT PRESUPPOSE EFFECTIVE RESORT TO SUCH METHODS OF SETTLING
QUESTIONS THAT ARISE IN CARRYING OUT A CONTRACT - THEY PRESUPPOSE THAT
ADMINISTRATIVE REMEDIES AS A CONDITION TO JUDICIAL RELIEF ARE NOT
RENDERED FUTILE AND NUGATORY.  THIS DOES NOT OF COURSE QUESTION THE
GOOD FAITH OF THE HEAD OF THE VETERANS' ADMINISTRATION.  BUT WHERE THE
MAN ON THE SPOT, IN HIS DAILY RELATIONS WITH THE CONTRACTOR, SHOWS THE
KIND OF ARBITRARY ATTITUDE FOUND BY THE COURT OF CLAIMS, HE CANNOT BE
EFFECTIVELY SUPERVISED BY THE HEAD OF A DEPARTMENT.  IN ANY EVENT, THE
BURDEN OF INCURRING THE SUBORDINATE'S FUTURE HOSTILITY BY APPEALS TO
THE HEAD OF A DEPARTMENT SHOULD NOT BE CAST ON THE CONTRACTOR.  THE
FINDINGS OF THE COURT OF CLAIMS IN THIS CASE CAN ONLY MEAN THAT IT
WOULD HAVE BEEN WHOLLY FUTILE, AND WORSE THAN FUTILE, TO INVOKE THE
EXPLICIT PROVISIONS OF THE CONTRACT FOR RESORT TO ADMINISTRATIVE
RELIEF.  THEREFORE, AS A RECIPROCAL DUTY OF THE GOVERNMENT, THE
CONTRACT BRINGS INTO OPERATION THE IMPLIED WARRANTY THAT THOSE WHO HAVE
IN EFFECTIVE KEEPING THE ADMINISTRATIVE MACHINERY FOR SETTLING
CONTROVERSIES WILL NOT PREVENT ITS UTILIZATION FOR ALL PRACTICAL
PURPOSES. 

THE COURT OF CLAIMS AWARDED RESPONDENT $79,661.56 TO COMPENSATE FOR
LOSSES AND INCREASED COSTS RESULTING FROM THE UNREASONABLE AND IMPROPER
REQUIREMENTS IMPOSED UPON THE CONTRACTOR BY THE GOVERNMENT'S
SUPERINTENDENT OF CONSTRUCTION AND HIS ASSISTANT.  THE CIRCUMSTANCES
SURROUNDING THE VARIOUS ITEMS WHICH GO TO MAKE UP THIS SUM DIFFER IN
DETAILS, BUT THE BASIS ON WHICH THE COURT OF CLAIMS FOUND FOR THE
CONTRACTOR IS THE SAME. 

THE FINDINGS OF FACT OF THE COURT BELOW TELL A STORY OF ARBITRARY
IMPOSITIONS.  FROM THE OUTSET, THE SUPERINTENDING GOVERNMENT OFFICERS
REQUIRED THE CONTRACTOR "TO DO THINGS ADMITTEDLY NOT REQUIRED OF HIM
UNDER THE CONTRACT ON THREAT OF REPRISALS FOR REFUSAL."  THESE WERE NOT
EMPTY THREATS.  THE EVIDENCE SHOWS THAT AN UNAUTHORIZED AND
UNREASONABLE ORDER TO ERECT OUTSIDE SCAFFOLDING FOR LAYING BRICKS WAS
ENFORCED BY REJECTING BRICKWORK WHICH WAS NOT PRECISELY UNIFORM TO A
MAXIMUM OF ONE-SIXTEENTH OF AN INCH BY MEASUREMENT, AND EXACTING OF
PLAINTIFF MORTAR JOINTS THAT DID NOT VARY MORE THAN ONE-EIGHTH OF AN
INCH BY MEASUREMENT.  THAT THESE REJECTIONS AND EXACTIONS WERE WILFUL
AND OPPRESSIVE BECAME CLEAR WHEN ALL OBJECTIONS CEASED AS SOON AS THE
CONTRACTOR DECIDED TO COMPLY AND ERECT THE OUTSIDE SCAFFOLDS.  THIS IS
BUT ONE ILLUSTRATION OF WHAT WAS APPARENTLY A SYSTEMATIC PRACTICE OF
UNJUSTIFIED DEMANDS AND VEXATIONS. 

THE COURT OF CLAIMS FOUND THAT THE SUPERINTENDENT AND HIS ASSISTANT
"RESENTED PLAINTIFF'S MAKING PROTEST TO THE CONTRACTING OFFICER,
THEREBY RENDERING IT IMPOSSIBLE FOR PLAINTIFF EFFECTIVELY TO PROTEST IN
WRITING IN EACH INSTANCE TO THE CONTRACTING OFFICER THROUGH THE
DEFENDANT'S OFFICER AT THE SITE OF THE WORK.  ...  THE CONTRACTING
OFFICER IN THOSE CASES INVOLVING UNREASONABLE AND ARBITRARY ACTS AND
INSTRUCTIONS OF THE OFFICERS AT THE SITE OF THE WORK STATED TO
PLAINTIFF THAT HE UNDERSTOOD AND APPRECIATED THE TROUBLES AND
DIFFICULTIES UNDER WHICH PLAINTIFF WAS HAVING TO PERFORM THE WORK, BUT
THERE WAS PRACTICALLY NOTHING HE COULD DO ABOUT IT AND THAT PLAINTIFF
SHOULD KEEP HIM INFORMED BUT THAT PLAINTIFF 'WOULD JUST HAVE TO DO THE
BEST HE COULD TO GET ALONG' WITH THE OFFICERS AND INSPECTORS AT THE
SITE OF THE WORK, TO THE END THAT THE WORK BE COMPLETED AS SOON AS
POSSIBLE."  IF THERE IS SUBSTANTIAL EVIDENCE SUPPORTING THESE FINDINGS,
THIS COURT'S POWER OF REVIEW IS CONFINED TO QUESTIONS OF LAW.  53 STAT.
752, 28 U.S.C. SEC. 288. 

FOR ALL BUT ONE ITEM, THERE CAN BE NO DOUBT THAT THE EVIDENCE IS
ADEQUATE AND THE AWARD IN ACCORDANCE WITH LAW.  THE CONTRACTOR WAS
AWARDED $107.50 FOR THE EXTRA COST OF TEMPERATURE STEEL USED BY ORDER
OF THE SUPERINTENDENT OF CONSTRUCTION IN SLABS REINFORCED WITH TWO-WAY
RODS.  THE RECORD MAKES CLEAR THAT THE CONTRACT SPECIFICATIONS
SUPPORTED THIS ORDER OF THE SUPERINTENDENT, IN THAT NO DISTINCTION WAS
MADE AS TO WHETHER THE SLABS WERE REINFORCED BY ONE-WAY OR TWO-WAY
RODS, AND THE FACT THAT THE CONTRACTING OFFICER SUBSEQUENTLY RELIEVED
THE CONTRACTOR OF THIS REQUIREMENT AS TO TWO-WAY RODS DOES NOT JUSTIFY
THE AWARD.  IN VIEW OF WHAT I DEEM TO BE LEGAL PRINCIPLES GOVERNING THE
CONSTRUCTION OF CONTRACTS, I SHOULD THEREFORE AFFIRM THE JUDGMENT OF
THE COURT OF CLAIMS FOR DAMAGES RESULTING FROM THE ACTS OF THE
SUPERINTENDING OFFICERS AFTER DEDUCTING $107.50. 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :

















CHICAGO, ST. P., M. & O. RY. CO. V. U.S., 322 U.S. 1 


NO. 482.  ARGUED MARCH 8, 1944.  - DECIDED APRIL 10, 1944.  - 50
F.SUPP.  249, AFFIRMED. 


1.  THE FINDINGS UPON WHICH THE INTERSTATE COMMERCE COMMISSION BASED
ITS AUTHORIZATION OF MOTOR CARRIER OPERATIONS IN THIS CASE WERE
SUPPORTED BY THE EVIDENCE; AND THE COURT BELOW PROPERLY DECLINED TO
SUBSTITUTE ITS OWN INFERENCES FROM THE TESTIMONY FOR THOSE OF THE
COMMISSION AND TO WEIGH THE EVIDENCE ANEW.  P. 2. 

2.  UPON APPLICATION BY A MOTOR CARRIER UNDER SECS. 206(A) AND 207(A)
OF PART II OF THE INTERSTATE COMMERCE ACT FOR AUTHORIZATION OF
OPERATIONS OVER CERTAIN ROUTES, THE COMMISSION, UPON THE FACTS FOUND,
HAD POWER UNDER SEC. 208(A) TO AUTHORIZE THE APPLICANT TO SERVE
INTERMEDIATE POINTS ON THE ROUTES, THOUGH THE APPLICANT HAD NOT SOUGHT
AUTHORITY IN RESPECT OF THE INTERMEDIATE POINTS.  P. 3. 

3.  THE RECORD DOES NOT SUSTAIN THE CLAIM THAT THE PROTESTANTS WERE
DENIED THE OPPORTUNITY FOR AN ADEQUATE HEARING BEFORE THE COMMISSION. 
P. 3. 

CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY CO. ET AL. V. UNITED
STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MINNESOTA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DISMISSING A
SUIT TO SET ASIDE IN PART AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE FIVE RAILROADS OPERATING IN MINNESOTA AND NORTH
DAKOTA.  THEY CLAIM TO BE AGGRIEVED BY AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION GRANTING OPERATING AUTHORITY TO A MOTOR CARRIER OF
GOODS IN THAT TERRITORY.  APPELLEE CORNELIUS STYER, DOING BUSINESS AS
NORTHERN TRANSPORTATION COMPANY, MADE APPLICATION FOR TWO CLASSES OF
COMMON-CARRIER RIGHTS.  AS TO CERTAIN ROUTES HE SOUGHT "GRANDFATHER
RIGHTS" UNDER SEC. 206(A) OF PART II OF THE INTERSTATE COMMERCE ACT, 49
U.S.C. SEC. 306(A).  AS TO CERTAIN OTHERS, HE SOUGHT AUTHORITY UNDER
SECS. 206(A) AND 207(A) OF THE ACT, 49 U.S.C. SECS. 306(A), 307(A), BY
SHOWING THAT THE PROPOSED SERVICE "IS OR WILL BE REQUIRED BY THE
PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY."  AFTER DUE
HEARINGS BOTH CLASSES OF RIGHTS WERE GRANTED.  STYER LATER TRANSFERRED
THEM TO THE APPELLEE GLENDENNING MOTORWAYS, INC. 

THE RAILROADS BROUGHT AN ACTION IN THE DISTRICT COURT FOR MINNESOTA
AGAINST THE COMMISSION AND THE CARRIERS TO ANNUL THE COMMISSION'S
CERTIFICATE, PURSUANT TO 28 U.S.C. SEC. 41(28).  THE CAUSE CAME ON
BEFORE A COURT OF THREE JUDGES WHO DISMISSED THE COMPLAINT ON THE
MERITS.  IT WAS BROUGHT HERE BY DIRECT APPEAL. 

IT IS CONTENDED THAT THERE IS NO EVIDENCE TO SUPPORT THE FINDINGS ON
WHICH THE COMMISSION GRANTED OPERATING RIGHTS.  THE COURT BELOW
EXAMINED THE EVIDENCE AS TO EACH CHALLENGED FINDING AND FOUND EACH "NOT
UNSUPPORTED BY EVIDENCE."  IT DECLINED, QUITE PROPERLY, TO SUBSTITUTE
INFERENCES OF ITS OWN FOR THOSE DRAWN BY THE COMMISSION FROM TESTIMONY
AND DECLINED TO WEIGH ANEW CONFLICTS IN IT.  THIS WAS NO ERROR, AND WE
AFFIRM THE FINDINGS.  GREGG CARTAGE & STORAGE CO. V. UNITED STATES, 316
U.S. 74; ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125. 

THE QUESTION OF LAW IN THE CASE IS WHETHER THE COMMISSION ON ITS
FINDING NEED FOR SUCH SERVICE HAD POWER TO AUTHORIZE SERVICE OF
INTERMEDIATE POINTS NOT ASKED FOR BY THE APPLICANT.  THE APPLICANT HAS
ACCEPTED AND IS DEFENDING THE GRANT, BUT THE COMPETING RAIL CARRIERS
COMPLAIN OF IT. 

IN THE GRANDFATHER CASE STYER STATED THAT HE DID NOT CLAIM AND WAS
NOT APPLYING FOR AUTHORITY TO CARRY GOODS IN INTERSTATE COMMERCE FROM
ANY MINNESOTA POINT TO ANY MINNESOTA POINT.  BUT HE HAD BEGUN
OPERATIONS ONLY TWO MONTHS PRIOR TO THE "GRANDFATHER" DATE.  THE
COMMISSION FOUND THAT HE HAD HELD OUT SERVICE TO SUCH INTERMEDIATE
POINTS AND THAT THERE WAS PUBLIC NEED FOR IT. 

IN THE CONVENIENCE AND NECESSITY CASE, BEFORE HEARING STYER FILED AN
AMENDMENT TO HIS APPLICATION WHICH WITHDREW REQUEST FOR AUTHORITY AS TO
"ALL SERVICE IN INTERSTATE COMMERCE BETWEEN POINTS IN MINNESOTA."  THE
COMMISSION, HOWEVER, FOUND THAT HE HAD SERVED SUCH INTERMEDIATE POINTS
ON THE ROUTE AS SHIPPERS HAD REQUESTED IT, THAT SUCH SERVICE WAS
FULFILLING A PUBLIC NEED, AND WAS REQUIRED BY THE PUBLIC CONVENIENCE
AND NECESSITY. 

IT IS SAID THAT THESE ACTIONS WITHDREW THE INTERMEDIATE POINTS FROM
ISSUE AND THREW THE PROTESTING PARTIES OFF THEIR GUARD AND THAT THEY
DID NOT HAVE OPPORTUNITY FOR ADEQUATE HEARING ON THE MATTERS ULTIMATELY
DECIDED.  HOWEVER, AFTER RECEIVING THE REPORT OF DIVISION 5
RECOMMENDING GRANTING, AS WAS DONE, THE RAILROADS FILED A PETITION FOR
RECONSIDERATION.  IT IS NOT IN EVIDENCE.  WHETHER SURPRISE WAS CLAIMED
AND EVIDENCE WAS INDICATED THAT COULD BE ADDED ON REHEARING, WE DO NOT
KNOW.  THE COURT ENDEAVORS TO PROTECT THE RIGHT OF PARTIES TO FAIR
HEARINGS, BUT IT WILL NOT PRESUME THAT THEIR RIGHTS HAVE BEEN
SUBSTANTIALLY DENIED WHEN THEY DO NOT EMBRACE THE OPPORTUNITY TO PROVE
THEIR GRIEVANCE IN THE COURT BELOW. 

IT IS CLEAR THAT THE COMMISSION ON THE FACTS FOUND HAD POWER TO
INCLUDE IN THE AUTHORIZATION PROVISION FOR SERVICE GREATER THAN THE
CARRIER HAD ASKED.  SECTION 208(A) OF THE ACT PROVIDES THAT IN ANY
CERTIFICATE ISSUED UNDER EITHER SEC. 206 OR SEC. 207 "THERE SHALL, AT
THE TIME OF ISSUANCE AND FROM TIME TO TIME THEREAFTER, BE ATTACHED TO
THE EXERCISE OF THE PRIVILEGES GRANTED BY THE CERTIFICATE SUCH
REASONABLE TERMS, CONDITIONS, AND LIMITATIONS AS THE PUBLIC CONVENIENCE
AND NECESSITY MAY FROM TIME TO TIME REQUIRE, INCLUDING TERMS,
CONDITIONS, AND LIMITATIONS AS TO THE EXTENSION OF THE ROUTE OR ROUTES
OF THE CARRIER."  49 U.S.C. SEC. 308(A).  JUDGMENT AFFIRMED. 
..END :











POLLOCK V. WILLIAMS, 322 U.S. 4 


NO. 345.  ARGUED FEBRUARY 10, 1944.  - DECIDED APRIL 10, 1944.  - 153
FLA. 338, 14 SO.2D 700, REVERSED. 


1.  A STATUTE OF FLORIDA WHICH MAKES GUILTY OF A MISDEMEANOR ANY
PERSON WHO, WITH INTENT TO DEFRAUD, OBTAINS AN ADVANCE UPON AN
AGREEMENT TO RENDER SERVICES, AND WHICH PROVIDES FURTHER THAT FAILURE
TO PERFORM THE SERVICES FOR WHICH AN ADVANCE WAS OBTAINED SHALL BE
PRIMA FACIE EVIDENCE OF INTENT TO DEFRAUD, HELD VIOLATIVE OF THE
THIRTEENTH AMENDMENT AND THE FEDERAL ANTIPEONAGE ACT.  PP. 5, 17. 

2.  IN VIEW OF THE HISTORY AND OPERATION OF THE FLORIDA STATUTE, IT
CAN NOT BE SAID THAT A PLEA OF GUILTY IS UNINFLUENCED BY THE STATUTE'S
THREAT TO CONVICT BY ITS PRIMA FACIE EVIDENCE SECTION; HENCE THE ENTIRE
STATUTE IS INVALID, AND A CONVICTION UNDER IT, THOUGH BASED UPON A PLEA
OF GUILTY, CAN NOT BE SUSTAINED.  P. 15. 

3.  THAT UPON A TRIAL OF THE DEFENDANT HIS TESTIMONY IN RESPECT OF
HIS INTENT WOULD HAVE BEEN COMPETENT IS IMMATERIAL.  P. 25. 

POLLOCK V. WILLIAMS, SHERIFF. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

APPEAL FROM THE REVERSAL OF A JUDGMENT WHICH, UPON A WRIT OF HABEAS
CORPUS, DISCHARGED THE PRISONER, APPELLANT HERE. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

APPELLANT POLLOCK QUESTIONS THE VALIDITY OF A STATUTE OF THE STATE OF
FLORIDA MAKING IT A MISDEMEANOR TO INDUCE ADVANCES WITH INTENT TO
DEFRAUD BY A PROMISE TO PERFORM LABOR AND FURTHER MAKING FAILURE TO
PERFORM LABOR FOR WHICH MONEY HAS BEEN OBTAINED PRIMA FACIE EVIDENCE OF
INTENT TO DEFRAUD.  FN1  IT CONFLICTS, HE SAYS, WITH THE THIRTEENTH
AMENDMENT TO THE FEDERAL CONSTITUTION AND WITH THE ANTIPEONAGE STATUTE
ENACTED BY CONGRESS THEREUNDER.  CLAIMS ALSO ARE MADE UNDER THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT WHICH
WE FIND IT UNNECESSARY TO CONSIDER. 

POLLOCK WAS ARRESTED JANUARY 5, 1943, ON A WARRANT ISSUED THREE DAYS
BEFORE WHICH CHARGED THAT ON THE 17TH OF OCTOBER, 1942, HE DID "WITH
INTENT TO INJURE AND DEFRAUD UNDER AND BY REASON OF A CONTRACT AND
PROMISE TO PERFORM LABOR AND SERVICE, PROCURE AND OBTAIN MONEY, TO-WIT:
THE SUM OF $5.00, AS ADVANCES FROM ONE J.V. O'ALBORA, A CORPORATION,
CONTRARY TO THE STATUTE IN SUCH CASES MADE AND PROVIDED, AND AGAINST
THE PEACE AND DIGNITY OF THE STATE OF FLORIDA."  HE WAS TAKEN BEFORE
THE COUNTY JUDGE ON THE SAME DAY, ENTERED A PLEA OF GUILTY, AND WAS
SENTENCED TO PAY A FINE OF $100 AND IN DEFAULT TO SERVE SIXTY DAYS IN
THE COUNTY JAIL.  HE WAS IMMEDIATELY COMMITTED. 

ON JANUARY 11, 1943, A WRIT OF HABEAS CORPUS WAS ISSUED BY THE JUDGE
OF THE CIRCUIT COURT, DIRECTED TO THE JAIL KEEPER, WHO IS APPELLEE
HERE.  PETITION FOR THE WRIT CHALLENGED THE CONSTITUTIONALITY OF THE
STATUTES UNDER WHICH POLLOCK WAS CONFINED AND SET FORTH THAT "AT THE
TRIAL AFORESAID, HE WAS NOT TOLD THAT HE WAS ENTITLED TO COUNSEL, AND
THAT COUNSEL WOULD BE PROVIDED FOR HIM IF HE WISHED, AND HE DID NOT
KNOW THAT HE HAD SUCH RIGHT.  PETITIONER WAS WITHOUT FUNDS AND UNABLE
TO EMPLOY COUNSEL.  HE FURTHER AVERS THAT HE DID NOT UNDERSTAND THE
NATURE OF THE CHARGE AGAINST HIM, BUT UNDERSTOOD THAT IF HE OWED ANY
MONEY TO HIS PRIOR EMPLOYER AND HAD QUIT HIS EMPLOYMENT WITHOUT PAYING
THE SAME, HE WAS GUILTY, WHICH FACTS HE ADMITTED."  THE SHERIFF'S
RETURN MAKES NO DENIAL OF THESE ALLEGATIONS, BUT MERELY SETS FORTH THAT
HE HOLDS THE PRISONER BY VIRTUE OF THE COMMITMENT "BASED UPON THE
JUDGMENT AND CONVICTION AS SET FORTH IN THE PETITION."  THE SUPREME
COURT OF FLORIDA HAS SAID THAT "UNDENIED ALLEGATIONS OF THE PETITION
ARE TAKEN AS TRUE."  FN2 

THE CIRCUIT COURT HELD THE STATUTES UNDER WHICH THE CASE WAS
PROSECUTED TO BE UNCONSTITUTIONAL AND DISCHARGED THE PRISONER.  THE
SUPREME COURT OF FLORIDA REVERSED.  FN3  IT READ OUR DECISIONS IN
BAILEY V. ALABAMA  FN4  AND TAYLOR V. GEORGIA  FN5  TO HOLD THAT
SIMILAR LAWS ARE NOT IN CONFLICT WITH THE CONSTITUTION IN SO FAR AS
THEY DENOUNCE THE CRIME, BUT ONLY IN DECLARING THE PRIMA FACIE EVIDENCE
RULE.  IT STATED THAT ITS FIRST IMPRESSION WAS THAT THE ENTIRE FLORIDA
ACT WOULD FALL, AS DID THAT OF GEORGIA, BUT ON REFLECTION IT CONCLUDED
THAT OUR DECISIONS WERE CALLED FORTH BY OPERATION OF THE PRESUMPTION,
AND DID NOT CONDEMN THE SUBSTANTIVE PART OF THE STATUTE WHERE THE
PRESUMPTION WAS NOT BROUGHT INTO PLAY.  AS THE PRISONER HAD PLEADED
GUILTY, THE FLORIDA COURT THOUGHT THE PRESUMPTION HAD PLAYED NO PART IN
THIS CASE, AND THEREFORE REMANDED THE PRISONER TO CUSTODY.  AN APPEAL
TO THIS COURT WAS TAKEN AND PROBABLE JURISDICTION NOTED.  FN6 

FLORIDA ADVANCES NO ARGUMENT THAT THE PRESUMPTION SECTION OF THIS
STATUTE IS CONSTITUTIONAL, NOR COULD IT PLAUSIBLY DO SO IN VIEW OF OUR
DECISIONS.  IT CONTENDS, HOWEVER, (1) THAT WE CAN GIVE NO CONSIDERATION
TO THE PRESUMPTION SECTION BECAUSE IT WAS NOT IN FACT BROUGHT INTO PLAY
IN THE CASE, BY REASON OF THE PLEA OF GUILTY; (2) THAT SO SEVERED THE

             I. 

THESE ISSUES EMERGE FROM AN HISTORICAL BACKGROUND AGAINST WHICH THE
FLORIDA LEGISLATION IN QUESTION MUST BE APPRAISED. 

THE THIRTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION, MADE IN 1865,
DECLARES THAT INVOLUNTARY SERVITUDE SHALL NOT EXIST WITHIN THE UNITED
STATES AND GIVES CONGRESS POWER TO ENFORCE THE ARTICLE BY APPROPRIATE
LEGISLATION.  FN7  CONGRESS ON MARCH 2, 1867, ENACTED THAT ALL LAWS OR
USAGES OF ANY STATE "BY VIRTUE OF WHICH ANY ATTEMPT SHALL HEREAFTER BE
MADE TO ESTABLISH, MAINTAIN, OR ENFORCE, DIRECTLY OR INDIRECTLY, THE
VOLUNTARY OR INVOLUNTARY SERVICE OR LABOR OF ANY PERSONS AS PEONS, IN
LIQUIDATION OF ANY DEBT OR OBLIGATION, OR OTHERWISE," ARE NULL AND
VOID, AND DENOUNCED IT AS A CRIME TO HOLD, ARREST, OR RETURN A PERSON
TO THE CONDITION OF PEONAGE.  FN8  CONGRESS THUS RAISED BOTH A SHIELD
AND A SWORD AGAINST FORCED LABOR BECAUSE OF DEBT. 

CLYATT V. UNITED STATES WAS A CASE FROM FLORIDA IN WHICH THE FEDERAL
ACT WAS USED AS A SWORD AND AN EMPLOYER CONVICTED UNDER IT.  THIS COURT
SUSTAINED IT AS CONSTITUTIONAL AND SAID OF PEONAGE: "IT MAY BE DEFINED
AS A STATUS OR CONDITION OF COMPULSORY SERVICE, BASED UPON THE
INDEBTEDNESS OF THE PEON TO THE MASTER.  THE BASAL FACT IS
INDEBTEDNESS.  ...  PEONAGE IS SOMETIMES CLASSIFIED AS VOLUNTARY OR
INVOLUNTARY, BUT THIS IMPLIES SIMPLY A DIFFERENCE IN THE MODE OF
ORIGIN, BUT NONE IN THE CHARACTER OF THE SERVITUDE.  THE ONE EXISTS
WHERE THE DEBTOR VOLUNTARILY CONTRACTS TO ENTER THE SERVICE OF HIS
CREDITOR.  THE OTHER IS FORCED UPON THE DEBTOR BY SOME PROVISION OF
LAW.  ... A CLEAR DISTINCTION EXISTS BETWEEN PEONAGE AND THE VOLUNTARY
PERFORMANCE OF LABOR OR RENDERING OF SERVICES IN PAYMENT OF A DEBT.  IN
THE LATTER CASE THE DEBTOR, THOUGH CONTRACTING TO PAY HIS INDEBTEDNESS
BY LABOR OR SERVICE, AND SUBJECT LIKE ANY OTHER CONTRACTOR TO AN ACTION
FOR DAMAGES FOR BREACH OF THAT CONTRACT, CAN ELECT AT ANY TIME TO BREAK
IT, AND NO LAW OR FORCE COMPELS PERFORMANCE OR A CONTINUANCE OF THE
SERVICE."  FN9 

THEN CAME THE TWICE-CONSIDERED CASE OF BAILEY V. ALABAMA N10, IN
WHICH THE ACT AND THE CONSTITUTION WERE RAISED AS A SHIELD AGAINST
CONVICTION OF A LABORER UNDER AN ALABAMA ACT SUBSTANTIALLY THE SAME AS
THE ONE BEFORE US NOW.  BAILEY, A NEGRO, HAD OBTAINED $15 FROM A
CORPORATION ON A WRITTEN AGREEMENT TO WORK FOR A YEAR AT $12 PER MONTH,
$10.75 TO BE PAID HIM AND $1.25 PER MONTH TO APPLY ON HIS DEBT.  IN
ABOUT A MONTH HE QUIT.  HE WAS CONVICTED, FINED $30, OR IN DEFAULT
SENTENCED TO HARD LABOR FOR 20 DAYS IN LIEU OF THE FINE AND 116 DAYS ON
ACCOUNT OF COSTS.  THE COURT CONSIDERED THAT THE PORTION OF THE STATE
LAW DEFINING THE CRIME WOULD REQUIRE PROOF OF INTENT TO DEFRAUD, AND SO
DID NOT STRIKE DOWN THAT PART; NOR WAS IT EXPRESSLY SUSTAINED, NOR WAS
IT NECESSARILY REACHED, FOR THE PRIMA FACIE EVIDENCE PROVISION HAD BEEN
USED TO OBTAIN A CONVICTION.  THIS COURT HELD THE PRESUMPTION, IN SUCH
A CONTEXT, TO BE UNCONSTITUTIONAL. 

LATER CAME UNITED STATES V. REYNOLDS AND UNITED STATES V. BROUGHTON
FN11  IN WHICH THE ACT OF 1867 WAS SWORD AGAIN.  REYNOLDS AND BROUGHTON
WERE INDICTED UNDER IT.  THE ALABAMA CODE AUTHORIZED ONE UNDER SOME
CIRCUMSTANCES TO BECOME SURETY FOR A CONVICT, PAY HIS FINE, AND BE
REIMBURSED BY LABOR.  REYNOLDS AND BROUGHTON EACH GOT HIMSELF A CONVICT
TO WORK OUT FINES AND COSTS AS A FARM HAND AT $6.00 PER MONTH.  AFTER A
TIME EACH CONVICT REFUSED TO LABOR FURTHER AND, UNDER THE STATUTE, EACH
WAS CONVICTED FOR THE REFUSAL.  THIS COURT SAID, "THUS, UNDER PAIN OF
RECURRING PROSECUTIONS, THE CONVICT MAY BE KEPT AT LABOR, TO SATISFY
THE DEMANDS OF HIS EMPLOYER."  IT HELD THE ALABAMA STATUTE
UNCONSTITUTIONAL AND EMPLOYERS UNDER IT SUBJECT TO PROSECUTION. 

IN TAYLOR V. GEORGIA  FN12  THE FEDERAL ACT WAS AGAIN APPLIED AS A
SHIELD, AGAINST CONVICTION BY RESORT TO THE PRESUMPTION, OF A NEGRO
LABORER, UNDER A GEORGIA STATUTE IN EFFECT LIKE THE ONE BEFORE US NOW. 
WE MADE NO EFFORT TO SEPARATE VALID FROM INVALID ELEMENTS IN THE
STATUTE, ALTHOUGH THE SUBSTANTIVE AND PROCEDURAL PROVISIONS WERE, AS
HERE, IN SEPARATE, AND SEPARATELY NUMBERED, SECTIONS.  WE SAID, "WE
THINK THAT THE SECTIONS OF THE GEORGIA CODE UPON WHICH THIS CONVICTION
RESTS ARE REPUGNANT TO THE THIRTEENTH AMENDMENT AND TO THE ACT OF 1867,
AND THAT THE CONVICTION MUST THEREFORE BE REVERSED."  ONLY RECENTLY IN
A CASE FROM NORTHERN FLORIDA A CREDITOR-EMPLOYER WAS INDICTED UNDER THE
FEDERAL ACT FOR ARRESTING A DEBTOR TO PEONAGE, AND WE SUSTAINED THE
INDICTMENT.  UNITED STATES V. GASKIN.  FN13 

THESE CASES DECIDED BY THIS COURT UNDER THE ACT OF 1867 CAME EITHER
FROM FLORIDA OR ONE OF THE ADJOINING STATES.  AND THESE WERE BUT A PART
OF THE STIR CAUSED BY THE FEDERAL ANTIPEONAGE ACT AND ITS ENFORCEMENT
IN THIS SAME REGION.  FN14  THIS IS NOT TO INTIMATE THAT THIS SECTION,
MORE THAN OTHERS, WAS SYMPATHETIC WITH PEONAGE, FOR THIS EVIL HAS NEVER
HAD GENERAL APPROVAL ANYWHERE, AND ITS SPORADIC APPEARANCES HAVE BEEN
NEITHER SECTIONAL NOR RACIAL.  IT IS MEMTIONED, HOWEVER, TO INDICATE
THAT THE LEGISLATURE OF FLORIDA ACTED WITH ALMOST CERTAIN KNOWLEDGE IN
DESIGNING ITS SUCCESSIVE "LABOR FRAUD" ACTS IN RELATION TO OUR SERIES
OF PEONAGE DECISIONS.  THE PRESENT ACT IS THE LATEST OF A LINEAGE, IN
WHICH ITS ANTECEDENTS WERE OBVIOUSLY ASSOCIATED WITH THE PRACTICE OF
PEONAGE.  THIS HISTORY THROWS SOME LIGHT ON WHETHER THE PRESENT STATE
ACT IS ONE "BY VIRTUE OF WHICH ANY ATTEMPT SHALL HEREAFTER BE MADE" TO
"ENFORCE INVOLUNTARY SERVITUDE," IN WHICH EVENT THE FEDERAL ACT
DECLARES IT VOID. 

IN 1891, THE LEGISLATURE CREATED AN OFFENSE OF TWO ELEMENTS:
OBTAINING MONEY OR PROPERTY UPON A FALSE PROMISE TO PERFORM SERVICE,
AND ABANDONMENT OF SERVICE WITHOUT JUST CAUSE AND WITHOUT RESTITUTION
OF WHAT HAD BEEN OBTAINED N15.  IN 1905, THIS COURT DECIDED CLYATT V.
UNITED STATES, INDICATING THAT ANY PERSON, INCLUDING PUBLIC OFFICERS,
EVEN IF ACTING UNDER STATE LAW, MIGHT BE GUILTY OF VIOLATING THE
FEDERAL ACT.  IN 1907, THE FLORIDA LEGISLATURE ENACTED A NEW STATUTE,
NEARLY IDENTICAL IN TERMS WITH THAT OF ALABAMA N16.  IN 1911, IN BAILEY
V. ALABAMA, THIS COURT HELD SUCH AN ACT UNCONSTITUTIONAL.  IN 1913, THE
FLORIDA LEGISLATURE REPEALED THE 1907 ACT, BUT RE-ENACTED IN SUBSTANCE
THE SECTION DENOUNCING THE CRIME, OMITTING THE PRESUMPTION OF INTENT
FROM THE FAILURE TO PERFORM THE SERVICE OR MAKE RESTITUTION.  FN17  IN
1919, THE FLORIDA SUPREME COURT HELD THIS ACT, STANDING ALONE, VOID
UNDER THE AUTHORITY OF BAILEY V. ALABAMA.  FN18  WHEREUPON, AT THE
SESSION OF 1919, THE PRESENT STATUTE WAS ENACTED, INCLUDING THE PRIMA
FACIE EVIDENCE PROVISIONS, NOTWITHSTANDING THESE DECISIONS BY THE
SUPREME COURT OF FLORIDA AND BY THIS COURT.  THE SUPREME COURT OF
FLORIDA LATER UPHELD A CONVICTION UNDER THIS STATUTE ON A PLEA OF
GUILTY, BUT DECLINED TO PASS ON THE PRESUMPTION SECTION, BECAUSE, AS IN
THE PRESENT CASE, THE PLEA OF GUILTY WAS THOUGHT TO MAKE ITS
CONSIDERATION UNNECESSARY.  FN19  THE STATUTE WAS RE-ENACTED WITHOUT
SUBSTANTIAL CHANGE IN 1941.  AGAIN IN 1943 IT WAS RE-ENACTED DESPITE
THE FACT THAT THE YEAR BEFORE WE HELD A VERY SIMILAR GEORGIA STATUTE
UNCONSTITUTIONAL IN ITS ENTIRETY.  FN20

                                 II. 

THE STATE CONTENDS THAT WE MUST EXCLUDE THE PRIMA FACIE EVIDENCE
PROVISION FROM CONSIDERATION BECAUSE IN FACT IT PLAYED NO PART IN
PRODUCING THIS CONVICTION.  SUCH WAS THE HOLDING OF THE STATE SUPREME
COURT.  WE ARE NOT CONCLUDED BY THAT HOLDING, HOWEVER, BUT UNDER THE
CIRCUMSTANCES ARE AUTHORIZED TO MAKE AN INDEPENDENT DETERMINATION. 
FN21 

WHAT THE PRISONER ACTUALLY DID THAT CONSTITUTED THE CRIME CANNOT BE
GLEANED FROM THE RECORD.  THE CHARGE IS CAST IN THE WORDS OF THE
STATUTE AND IS LARGELY A CONCLUSION.  IT AFFORDS NO INFORMATION EXCEPT
THAT POLLOCK OBTAINED $5 FROM A CORPORATION IN CONNECTION WITH A
PROMISE TO WORK WHICH HE FAILED TO PERFORM, AND THAT HIS DOING SO WAS
FRAUDULENT.  IF THE CONCLUSION THAT THE PRISONER ACTED WITH INTENT TO
DEFRAUD RESTS ON FACTS AND NOT ON THE PRIMA FACIE EVIDENCE PROVISIONS
OF THE STATUTE, NONE ARE STATED IN THE WARRANT OR APPEAR IN THE
RECORD.  NONE WERE SO SET FORTH THAT HE COULD DENY THEM.  HE OBTAINED
THE MONEY ON THE 14TH OF OCTOBER, 1942, AND THE WARRANT WAS NOT SOUGHT
UNTIL JANUARY 2, 1943.  WHETHER THE ORIGINAL ADVANCEMENT WAS MORE OR
LESS THAN $5, WHAT HE REPRESENTED OR PROMISED IN OBTAINING IT, WHETHER
HE WORKED A TIME AND QUIT, OR WHETHER HE NEVER BEGAN WORK AT ALL ARE
UNDISCLOSED.  ABOUT ALL THAT APPEARS IS THAT HE OBTAINED AN ADVANCEMENT
OF $5 FROM A CORPORATION AND FAILED TO KEEP HIS AGREEMENT TO WORK IT
OUT.  HE ADMITTED THOSE FACTS AND THE LAW PURPORTED TO SUPPLY THE
ELEMENT OF INTENT.  HE ADMITTED THE CONCLUSION OF GUILT WHICH THE
STATUTE MADE PRIMA FACIE THEREON.  HE WAS FINED $20 FOR EACH DOLLAR OF
HIS DEBT, AND IN DEFAULT OF PAYMENT WAS REQUIRED TO ATONE FOR IT BY
SERVING TIME AT THE RATE OF LESS THAN 9[ PER DAY. 

ESPECIALLY IN VIEW OF THE UNDENIED ASSERTIONS IN POLLOCK'S PETITION
WE CANNOT DOUBT THAT THE PRESUMPTION PROVISION HAD A COERCIVE EFFECT IN
PRODUCING THE PLEA OF GUILTY.  THE STATUTE LAID ITS UNDIVIDED WEIGHT
UPON HIM.  THE LEGISLATURE HAD NOT EVEN INCLUDED A SEPARABILITY
CLAUSE.  FN22  OF COURSE THE FUNCTION OF THE PRIMA FACIE EVIDENCE
LACKING.  NO ONE QUESTIONS THAT WE CLEARLY HAVE HELD THAT SUCH A
PRESUMPTION IS PROHIBITED BY THE CONSTITUTION AND THE FEDERAL STATUTE. 
THE FLORIDA LEGISLATURE HAS ENACTED AND TWICE RE-ENACTED IT SINCE WE SO
HELD.  WE CANNOT ASSUME IT WAS DOING AN IDLE THING.  SINCE THE
PRESUMPTION WAS KNOWN TO BE UNCONSTITUTIONAL AND OF NO USE IN A
CONTESTED CASE, THE ONLY EXPLANATION WE CAN FIND FOR ITS PERSISTENT
APPEARANCE IN THE STATUTE IS ITS EXTRA-LEGAL COERCIVE EFFECT IN
SUPPRESSING DEFENSES.  IT CONFRONTED THIS DEFENDANT.  THERE WAS EVERY
PROBABILITY THAT A LAW SO RECENTLY AND REPEATEDLY ENACTED BY THE
LEGISLATURE WOULD BE FOLLOWED BY THE TRIAL COURT, WHOSE JUDGE WAS NOT
REQUIRED TO BE A LAWYER.  THE POSSIBILITY OF OBTAINING RELIEF BY APPEAL
WAS NOT BRIGHT, AS THE EVENT PROVED, FOR POLLOCK HAD TO COME ALL THE
WAY TO THIS COURT AND WAS REQUIRED, AND QUITE REGULARLY, TO POST A
SUPERSEDEAS BOND OF $500, A HUNDRED TIMES THE AMOUNT OF HIS DEBT.  HE
WAS AN ILLITERATE NEGRO LABORER IN THE TOILS OF THE LAW FOR THE WANT OF
$5.  SUCH CONSIDERATIONS BEAR IMPORTANTLY ON THE DECISION OF A PRISONER
EVEN IF AIDED BY COUNSEL, AS POLLOCK WAS NOT, WHETHER TO PLEAD GUILTY
AND HOPE FOR LENIENCY OR TO FIGHT.  IT IS PLAIN THAT, HAD HIS PLIGHT
AFTER CONVICTION NOT AROUSED OUTSIDE HELP, POLLOCK HIMSELF WOULD HAVE
BEEN UNHEARD IN ANY APPELLATE COURT. 

IN THE LIGHT OF ITS HISTORY, THERE IS NO REASON TO BELIEVE THAT THE
LAW WAS GENERALLY USED OR ESPECIALLY USEFUL MERELY TO PUNISH DECEIT. 
FLORIDA HAS A GENERAL AND COMPREHENSIVE STATUTE MAKING IT A CRIME TO
OBTAIN MONEY OR PROPERTY BY FALSE PRETENSES  FN23  OR COMMIT "GROSS
FRAUD OR CHEAT AT COMMON LAW."  FN24  THESE APPEAR TO AUTHORIZE
PROSECUTION FOR EVEN THE PETTY AMOUNT INVOLVED HERE.  FN25  WE CAN
CONCEIVE REASONS, EVEN IF UNCONSTITUTIONAL ONES, WHICH MIGHT LEAD WELL
INTENTIONED PERSONS TO APPLY THIS ACT AS A MEANS TO MAKE OTHERWISE
SHIFTLESS MEN WORK,  FN26 BUT IF IN ADDITION TO THIS GENERAL FRAUD
PROTECTION EMPLOYERS AS A CLASS ARE SO SUSCEPTIBLE TO IMPOSITION THAT
THEY NEED EXTRA LEGISLATION, OR WORKMEN SO CRAFTY AND SUBTLE AS TO
CONSTITUTE A SPECIAL MENACE, WE DO NOT KNOW IT, NOR ARE WE ADVISED OF
SUCH FACTS. 

WE THINK THAT A STATE WHICH MAINTAINS SUCH A LAW IN FACE OF THE COURT
DECISIONS WE HAVE RECITED MAY NOT BE HEARD TO SAY THAT A PLEA OF GUILTY
UNDER THE CIRCUMSTANCES IS NOT DUE TO PRESSURE OF ITS STATUTORY THREAT
TO CONVICT HIM ON THE PRESUMPTION. 

AS WE HAVE SEEN, FLORIDA PERSISTED IN PUTTING UPON ITS STATUTE BOOKS
A PROVISION CREATING A PRESUMPTION OF FRAUD FROM THE MERE
NONPERFORMANCE OF A CONTRACT FOR LABOR SERVICE THREE TIMES AFTER THE
COURTS RULED THAT SUCH A PROVISION VIOLATES THE PROHIBITION AGAINST
PEONAGE.  TO ATTACH NO MEANING TO SUCH ACTION, TO SAY THAT LEGALLY
SPEAKING THERE WAS NO SUCH LEGISLATION, IS TO BE BLIND TO FACT.  SINCE
THE FLORIDA LEGISLATURE DEEMED THESE REPEATED ENACTMENTS TO BE
IMPORTANT, WE TAKE THE LEGISLATURE AT ITS OWN WORD.  SUCH A PROVISION
IS ON THE STATUTE BOOKS FOR THOSE WHO ARE ARRESTED FOR THE CRIME, AND
IT IS ON THE STATUTE BOOKS FOR US IN CONSIDERING THE PRACTICAL MEANING
OF WHAT FLORIDA HAS DONE. 

IN THE VIEW WE TAKE OF THE PURPOSE AND EFFECT OF THIS PRIMA FACIE
EVIDENCE PROVISION IT IS NOT MATERIAL WHETHER AS MATTER OF STATE LAW IT
IS REGARDED AS AN INDEPENDENT AND SEVERABLE PROVISION. 

                       III. 

WE ARE INDUCED BY THE EVIDENT MISUNDERSTANDING OF OUR DECISIONS BY
THE FLORIDA SUPREME COURT, IN WHAT WE ARE CONVINCED WAS A CONSCIENTIOUS
AND PAINSTAKING STUDY OF THEM, TO MAKE MORE EXPLICIT THE BASIS OF
CONSTITUTIONAL INVALIDITY OF THIS TYPE OF STATUTE. 

THE UNDOUBTED AIM OF THE THIRTEENTH AMENDMENT AS IMPLEMENTED BY THE
ANTIPEONAGE ACT WAS NOT MERELY TO END SLAVERY BUT TO MAINTAIN A SYSTEM
OF COMPLETELY FREE AND VOLUNTARY LABOR THROUGHOUT THE UNITED STATES. 
FORCED LABOR IN SOME SPECIAL CIRCUMSTANCES MAY BE CONSISTENT WITH THE
GENERAL BASIC SYSTEM OF FREE LABOR.  FOR EXAMPLE, FORCED LABOR HAS BEEN
SUSTAINED AS A MEANS OF PUNISHING CRIME,  FN27  AND THERE ARE DUTIES
SUCH AS WORK ON HIGHWAYS  FN28  WHICH SOCIETY MAY COMPEL.  BUT IN
GENERAL THE DEFENSE AGAINST OPPRESSIVE HOURS, PAY, WORKING CONDITIONS,
OR TREATMENT IS THE RIGHT TO CHANGE EMPLOYERS.  WHEN THE MASTER CAN
COMPEL AND THE LABORER CANNOT ESCAPE THE OBLIGATION TO GO ON, THERE IS
NO POWER BELOW TO REDRESS AND NO INCENTIVE ABOVE TO RELIEVE A HARSH
OVERLORDSHIP OR UNWHOLESOME CONDITIONS OF WORK.  RESULTING DEPRESSION
OF WORKING CONDITIONS AND LIVING STANDARDS AFFECTS NOT ONLY THE LABORER
UNDER THE SYSTEM, BUT EVERY OTHER WITH WHOM HIS LABOR COMES IN
COMPETITION.  WHATEVER OF SOCIAL VALUE THERE MAY BE, AND OF COURSE IT
IS GREAT, IN ENFORCING CONTRACTS AND COLLECTION OF DEBTS, CONGRESS HAS
PUT IT BEYOND DEBATE THAT NO INDEBTEDNESS WARRANTS A SUSPENSION OF THE
RIGHT TO BE FREE FROM COMPULSORY SERVICE.  THIS CONGRESSIONAL POLICY
MEANS THAT NO STATE CAN MAKE THE QUITTING OF WORK ANY COMPONENT OF A
CRIME, OR MAKE CRIMINAL SANCTIONS AVAILABLE FOR HOLDING UNWILLING
PERSONS TO LABOR.  THE FEDERAL STATUTORY TEST IS A PRACTICAL INQUIRY
INTO THE UTILIZATION OF AN ACT AS WELL AS ITS MERE FORM AND TERMS. 

WHERE PEONAGE HAS EXISTED IN THE UNITED STATES IT HAS DONE SO CHIEFLY
BY VIRTUE OF LAWS LIKE THE STATUTE IN QUESTION.  WHETHER THE STATUTE
DID OR DID NOT INCLUDE THE PRESUMPTION SEEMS TO HAVE MADE LITTLE
DIFFERENCE IN ITS PRACTICAL EFFECT.  IN 1910, IN RESPONSE TO A
RESOLUTION OF THE HOUSE OF REPRESENTATIVES, THE IMMIGRATION COMMISSION
REPORTED THE RESULTS OF AN INVESTIGATION OF PEONAGE AMONG IMMIGRANTS IN
THE UNITED STATES.  FN29  IT FOUND THAT NO GENERAL SYSTEM OF PEONAGE
EXISTED, AND THAT SENTIMENT DID NOT SUPPORT IT ANYWHERE.  ON THE OTHER
HAND, IT FOUND SPORADIC CASES OF PROBABLE PEONAGE IN EVERY STATE IN THE
UNION EXCEPT OKLAHOMA AND CONNECTICUT.  IT POINTED OUT THAT "THERE HAS
PROBABLY EXISTED IN MAINE THE MOST COMPLETE SYSTEM OF PEONAGE IN THE
ENTIRE COUNTRY," IN THE LUMBER CAMPS.  FN30  IN 1907, MAINE ENACTED A
STATUTE, APPLICABLE ONLY TO LUMBER OPERATIONS BUT IN ITS TERMS VERY
LIKE THE SECTION OF THE FLORIDA STATUTE WE ARE ASKED TO SEPARATE AND
SAVE.  THE LAW WAS ENFORCIBLE IN LOCAL COURTS NOT OF RECORD.  THE
COMMISSION POINTED OUT THAT THE MAINE STATUTE, UNLIKE THAT OF MINNESOTA
FN31  AND THE STATUTES OF OTHER STATES IN THE WEST AND SOUTH, DID NOT
CONTAIN A PRIMA FACIE EVIDENCE PROVISION.  BUT AS A PRACTICAL MATTER
THE STATUTE LED TO THE SAME RESULT.  FN32 

THE FRAUD WHICH SUCH STATUTES PURPORT TO PENALIZE IS NOT THE
CONCEALMENT OR MISREPRESENTATION OF EXISTING FACTS, SUCH AS FINANCIAL
CONDITION, OWNERSHIP OF ASSETS, OR DATA RELEVANT TO CREDIT.  THEY
EITHER PENALIZE PROMISSORY REPRESENTATIONS WHICH RELATE TO FUTURE
ACTION AND CONDUCT OR THEY PENALIZE A MISREPRESENTATION OF THE PRESENT
INTENT OR STATE OF MIND OF THE LABORER.  FN33  IN THESE "A HAIR PERHAPS
DIVIDES THE FALSE AND TRUE."  OF COURSE THERE MIGHT BE PROVABLE FRAUD
EVEN IN SUCH MATTERS.  ONE MIGHT ENGAGE FOR THE SAME PERIOD TO SEVERAL
EMPLOYERS, COLLECTING AN ADVANCE FROM EACH, OR HE MIGHT WORK THE SAME
TRICK OF HIRING OUT AND COLLECTING IN ADVANCE AGAIN AND AGAIN, OR
OTHERWISE PROVIDE PROOF THAT FRAUD WAS HIS DESIGN AND PURPOSE.  BUT IN
NOT ONE OF THE CASES TO COME BEFORE THIS COURT UNDER THE ANTIPEONAGE
STATUTE HAS THERE BEEN EVIDENCE OF SUCH SUBTLETY OR DESIGN.  IN EACH
THERE WAS THE SAME STORY, A NECESSITOUS AND ILLITERATE LABORER, AN
AGREEMENT TO WORK FOR A SMALL WAGE, A TRIFLING ADVANCE, A BREACH OF
CONTRACT TO WORK.  IN NOT ONE HAS THERE BEEN PROOF FROM WHICH WE FAIRLY
COULD SAY WHETHER THE NEGRO NEVER INTENDED TO WORK OUT THE ADVANCE, OR
QUIT BECAUSE OF SOME REAL OR FANCIED GRIEVANCE, OR JUST GOT TIRED.  IF
SUCH STATUTES HAVE EVER ON EVEN ONE OCCASION BEEN PUT TO A WORTHIER USE
IN THE RECORDS OF ANY STATE COURT, IT HAS NOT BEEN CALLED TO OUR
ATTENTION.  IF THIS IS THE VISIBLE RECORD, IT IS HARDLY TO BE ASSUMED
THAT THE OFF-THE-RECORD USES ARE MORE BENIGN. 

IT IS A MISTAKE TO BELIEVE THAT IN DEALING WITH STATUTES OF THIS TYPE
WE HAVE HELD THE PRESUMPTION SECTION TO BE THE ONLY SOURCE OF
INVALIDITY.  ON THE CONTRARY, THE SUBSTANTIVE SECTION HAS CONTRIBUTED
LARGELY TO THE CONCLUSION OF UNCONSTITUTIONALITY OF THE PRESUMPTION
INDEED, WE HAVE SUSTAINED THE POWER OF THE STATE TO ENACT AN ALMOST
IDENTICAL PRESUMPTION OF FRAUD, BUT IN TRANSACTIONS THAT DID NOT
INVOLVE INVOLUNTARY LABOR TO DISCHARGE A DEBT.  JAMES-DICKINSON FARM
MORTGAGE CO. V. HARRY.  FN34  ABSENT THIS FEATURE ANY OBJECTION TO
PRIMA FACIE EVIDENCE OR PRESUMPTION STATUTES OF THE STATE CAN ARISE
ONLY UNDER THE FOURTEENTH AMENDMENT, RATHER THAN UNDER THE THIRTEENTH. 
IN DECIDING PEONAGE CASES UNDER THE LATTER THIS COURT HAS BEEN AS
CAREFUL TO POINT OUT THE BROAD POWER OF THE STATE TO CREATE
PRESUMPTIONS AS IT HAS TO POINT OUT ITS POWER TO PUNISH FRAUDS.  IT
"HAS FREQUENTLY RECOGNIZED THE GENERAL POWER OF EVERY LEGISLATURE TO
PRESCRIBE THE EVIDENCE WHICH SHALL BE RECEIVED, AND THE EFFECT OF THAT
EVIDENCE IN THE COURTS OF ITS OWN GOVERNMENT.  IN THE EXERCISE OF THIS
POWER NUMEROUS STATUTES HAVE BEEN ENACTED PROVIDING THAT PROOF OF ONE
FACT SHALL BE PRIMA FACIE EVIDENCE OF THE MAIN FACT IN ISSUE; AND WHERE
THE INFERENCE IS NOT PURELY ARBITRARY AND THERE IS A RATIONAL RELATION
BETWEEN THE TWO FACTS, AND THE ACCUSED IS NOT DEPRIVED OF A PROPER
OPPORTUNITY TO SUBMIT ALL THE FACTS BEARING UPON THE ISSUE, IT HAS BEEN
HELD THAT SUCH STATUTES DO NOT VIOLATE THE REQUIREMENTS OF DUE PROCESS
OF LAW."  BAILEY V. ALABAMA.  FN35  BUT THE COURT ADDED THAT "THE STATE
MAY NOT IN THIS WAY INTERFERE WITH MATTERS WITHDRAWN FROM ITS AUTHORITY
BY THE FEDERAL CONSTITUTION OR SUBJECT AN ACCUSED TO CONVICTION FOR
CONDUCT WHICH IT IS POWERLESS TO PROSCRIBE."  FN36  AND IT PROCEEDED TO
HOLD THAT THE PRESUMPTION, WHEN COUPLED WITH THE OTHER SECTION,
TRANSGRESSED THOSE LIMITS, FOR WHILE IT APPEARED TO PUNISH FRAUD THE
INEVITABLE EFFECT OF THE LAW WAS TO PUNISH FAILURE TO PERFORM LABOR
CONTRACTS. 

IN TAYLOR V. GEORGIA BOTH SECTIONS OF THE ACT WERE HELD
UNCONSTITUTIONAL.  THERE THE STATE RELIED ON THE PRESUMPTION TO
CONVICT.  BUT IT WAS NOT DENIED THAT A STATE HAS POWER REASONABLY TO
PRESCRIBE THE PRIMA FACIE INFERENCES TO BE DRAWN FROM CIRCUMSTANTIAL
EVIDENCE.  IT WAS THE SUBSTANCE OF THE CRIME TO ESTABLISH WHICH THE
PRESUMPTION WAS INVOKED THAT GAVE A FORBIDDEN ASPECT TO THAT METHOD OF
SHORT-CUTTING THE ROAD TO CONVICTION.  THE DECISION STRIKING DOWN BOTH
UNCONSIDERED USE OF THE PLURAL.  MR. JUSTICE BYRNES KNEW WHEREOF HE
SPOKE; UNCONSTITUTIONALITY INHERED IN THE SUBSTANTIVE QUITE AS MUCH AS
IN THE PROCEDURAL SECTION AND NO PART OF THE INVALID STATUTE COULD BE
SEPARATED TO BE SALVAGED.  WHERE IN THE SAME SUBSTANTIVE CONTEXT THE
STATE THREATENS BY STATUTE TO CONVICT ON A PRESUMPTION, ITS INHERENT
COERCIVE POWER IS SUCH THAT WE ARE CONSTRAINED TO HOLD THAT IT IS
EQUALLY USEFUL IN ATTEMPTS TO ENFORCE INVOLUNTARY SERVICE IN DISCHARGE
OF A DEBT, AND THE WHOLE IS INVALID. 

IT IS TRUE THAT IN EACH OPINION DEALING WITH STATUTES OF THIS TYPE
THIS COURT HAS EXPRESSLY RECOGNIZED THE RIGHT OF THE STATE TO PUNISH
FRAUD, EVEN IN MATTERS OF THIS KIND, BY STATUTES WHICH DO NOT EITHER IN
FORM OR IN OPERATION LEND THEMSELVES TO SHELTERING THE PRACTICE OF
PEONAGE.  DECEIT IS NOT PUT BEYOND THE POWER OF THE STATE BECAUSE THE
CHEAT IS A LABORER NOR BECAUSE THE DEVICE FOR SWINDLING IS AN AGREEMENT
TO LABOR.  BUT WHEN THE STATE UNDERTAKES TO DEAL WITH THIS SPECIALIZED
FORM OF FRAUD, IT MUST RESPECT THE CONSTITUTIONAL AND STATUTORY COMMAND
THAT IT MAY NOT MAKE FAILURE TO LABOR IN DISCHARGE OF A DEBT ANY PART
OF A CRIME.  IT MAY NOT DIRECTLY OR INDIRECTLY COMMAND INVOLUNTARY
SERVITUDE, EVEN IF IT WAS VOLUNTARILY CONTRACTED FOR. 

FROM WHAT WE HAVE SAID ABOUT THE PRACTICAL CONSIDERATIONS WHICH ARE
RELEVANT TO THE INQUIRY WHETHER ANY PARTICULAR STATE ACT CONFLICTS WITH
THE ANTIPEONAGE ACT OF 1867 BECAUSE IT IS ONE BY WHICH "ANY ATTEMPT
SHALL HEREAFTER BE MADE TO ESTABLISH, MAINTAIN OR ENFORCE" THE
PROHIBITED SERVITUDE, IT IS APPARENT THAT WE SHOULD NOT PASS ON
HYPOTHETICAL ACTS.  RESERVATION OF THE QUESTION OF THE VALIDITY OF AN
ACT UNASSOCIATED WITH A PRESUMPTION NOW, AS HERETOFORE, DOES NOT DENOTE
APPROVAL.  THE SUPREME COURT OF FLORIDA HAS HELD SUCH AN ACT STANDING
ALONE UNCONSTITUTIONAL.  FN37  A CONSIDERABLE RECORDED EXPERIENCE WOULD
MERIT EXAMINATION IN RELATION TO ANY SPECIFIC LABOR FRAUD ACT.  FN38
WE DO NOT ENTER UPON THE INQUIRY FURTHER THAN THE ACT BEFORE US. 

ANOTHER MATTER DESERVES NOTICE.  IN BAILEY V. ALABAMA IT WAS OBSERVED
THAT THE LAW OF THAT STATE DID NOT PERMIT THE PRISONER TO TESTIFY TO
HIS UNCOMMUNICATED INTENT, WHICH HANDICAPPED HIM IN MEETING THE
PRESUMPTION.  IN TAYLOR V. GEORGIA THE PRISONER COULD NOT BE SWORN, BUT
COULD AND DID MAKE A STATEMENT TO THE JURY.  IN THIS FLORIDA CASE
APPELLEE IS UNDER NEITHER DISABILITY, BUT IS AT LIBERTY TO OFFER HIS
SWORN WORD AS AGAINST PRESUMPTIONS.  THESE DISTINCTIONS WE THINK ARE
WITHOUT CONSEQUENCE.  AS MR. JUSTICE BYRNES SAID IN TAYLOR V. GEORGIA,
THE EFFECT OF THIS DISABILITY "WAS SIMPLY TO ACCENTUATE THE HARSHNESS
OF AN OTHERWISE INVALID STATUTE." 

WE IMPUTE TO THE LEGISLATURE NO INTENTION TO OPPRESS, BUT WE ARE
COMPELLED TO HOLD THAT THE FLORIDA ACT OF 1919 AS BROUGHT FORWARD ON
THE STATUTES AS SECS. 817.09 AND 817.10 OF THE STATUTES OF 1941 ARE, BY
VIRTUE OF THE THIRTEENTH AMENDMENT AND THE ANTIPEONAGE ACT OF THE
UNITED STATES, NULL AND VOID.  THE JUDGMENT OF THE COURT BELOW IS
REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  THE FLORIDA STATUTE UNDER WHICH POLLOCK IS HELD WAS ENACTED AS
CHAPTER 7917 OF THE ACTS OF 1919.  IT WAS RE-ENACTED AS SECS. 817.09
AND 817.10, STATUTES OF 1941, IN THE REVISION AND COMPILATION OF THE
GENERAL STATUTE LAWS OF THE STATE.  IT READS:    "817.09  OBTAINING
PROPERTY BY FRAUDULENT PROMISE TO PERFORM LABOR OR SERVICE.  - ANY
PERSON IN THIS STATE WHO SHALL, WITH INTENT TO INJURE AND DEFRAUD,
UNDER AND BY REASON OF A CONTRACT OR PROMISE TO PERFORM LABOR OR
SERVICE, PROCURE OR OBTAIN MONEY OR OTHER THING OF VALUE AS A CREDIT,
OR AS ADVANCES, SHALL BE GUILTY OF A MISDEMEANOR AND UPON CONVICTION
THEREOF SHALL BE PUNISHED BY A FINE NOT EXCEEDING FIVE HUNDRED DOLLARS,
OR BY IMPRISONMENT NOT EXCEEDING SIX MONTHS. 

"817.10  SAME; PRIMA FACIE EVIDENCE OF FRAUDULENT INTENT.  - IN ALL
PROSECUTIONS FOR A VIOLATION OF SEC. 817.09 THE FAILURE OR REFUSAL,
WITHOUT JUST CAUSE, TO PERFORM SUCH LABOR OR SERVICE OR TO PAY FOR THE
MONEY OR OTHER THING OF VALUE SO OBTAINED OR PROCURED SHALL BE PRIMA
FACIE EVIDENCE OF THE INTENT TO INJURE AND DEFRAUD." 

FN2  STATE EX REL. LIBTZ V. COLEMAN, 149 FLA. 28, 5 SO.2D 60. 

FN3  WILLIAMS V. POLLOCK, 153 FLA. 338, 14 SO.2D 700. 

FN4  219 U.S. 219. 

FN5  315 U.S. 25. 

FN6  OCTOBER 25, 1943. 

FN7  "SECTION 1.  NEITHER SLAVERY NOR INVOLUNTARY SERVITUDE, EXCEPT
AS A PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY
CONVICTED, SHALL EXIST WITHIN THE UNITED STATES, OR ANY PLACE SUBJECT
TO THEIR JURISDICTION. 

"SECTION 2.  CONGRESS SHALL HAVE POWER TO ENFORCE THIS ARTICLE BY
APPROPRIATE LEGISLATION." 

FN8  THE ACT OF MARCH 2, 1867, 14 STAT. 546, READS: 

"THE HOLDING OF ANY PERSON TO SERVICE OR LABOR UNDER THE SYSTEM KNOWN
AS PEONAGE IS HEREBY DECLARED TO BE UNLAWFUL, AND THE SAME IS HEREBY
ABOLISHED AND FOREVER PROHIBITED IN THE TERRITORY OF NEW MEXICO, OR IN
ANY OTHER TERRITORY OR STATE OF THE UNITED STATES; AND ALL ACTS, LAWS,
RESOLUTIONS, ORDERS, REGULATIONS, OR USAGES OF THE TERRITORY OF NEW
MEXICO, OR OF ANY OTHER TERRITORY OR STATE OF THE UNITED STATES, WHICH
HAVE HERETOFORE ESTABLISHED, MAINTAINED, OR ENFORCED, OR BY VIRTUE OF
WHICH ANY ATTEMPT SHALL HEREAFTER BE MADE TO ESTABLISH, MAINTAIN, OR
ENFORCE, DIRECTLY OR INDIRECTLY, THE VOLUNTARY OR INVOLUNTARY SERVICE
OR LABOR OF ANY PERSONS AS PEONS, IN LIQUIDATION OF ANY DEBT OR
OBLIGATION, OR OTHERWISE, BE, AND THE SAME ARE HEREBY, DECLARED NULL
AND VOID; AND ANY PERSON OR PERSONS WHO SHALL HOLD, ARREST, OR RETURN,
OR CAUSE TO BE HELD, ARRESTED, OR RETURNED, OR IN ANY MANNER AID IN THE
ARREST OR RETURN OF ANY PERSON OR PERSONS TO A CONDITION OF PEONAGE,
SHALL, UPON CONVICTION, BE PUNISHED BY FINE NOT LESS THAN ONE THOUSAND
NOR MORE THAN FIVE THOUSAND DOLLARS, OR BY IMPRISONMENT NOT LESS THAN
ONE NOR MORE THAN FIVE YEARS, OR BOTH, AT THE DISCRETION OF THE
COURT."  THE FIRST PART OF THE STATUTE IS NOW 8 U.S.C. SEC. 56(R.S.
SEC. 1990) AND THE CRIMINAL PROVISION IS SEC. 269 OF THE CRIMINAL CODE,
18 U.S.C. SEC. 444(R.S. SEC. 5526). 

FN9  197 U.S. 207, 215-16(1905). 

FN10  211 U.S. 452(1908), WHERE HELD TO BE BROUGHT HERE PREMATURELY,
AND 219 U.S. 219(1911). 

FN11  235 U.S. 133(1914). 

FN12  315 U.S. 25(1942). 

FN13  320 U.S. 527. 

FN14  SEE PEONAGE CASES, 123 F. 671; UNITED STATES V. EBERHART, 127
F. 252; UNITED STATES V. MCCLELLAN, 127 F. 971; IN RE PEONAGE CHARGE,
138 F. 686; EX PARTE DRAYTON, 153 F. 986; TAYLOR V. UNITED STATES, 244
F. 321. 

FN15  "ANY PERSON IN THE STATE OF FLORIDA, WHO BY FALSE PROMISES AND
WITH THE INTENT TO INJURE OR DEFRAUD, OBTAINS FROM ANOTHER, ANY MONEY
OR PERSONAL PROPERTY, OR ANY PERSON WHO HAS ENTERED INTO A WRITTEN
CONTRACT, WITH, AT THE TIME, THE INTENT TO DEFRAUD, TO DO OR TO PERFORM
ANY ACT OR SERVICE, AND IN CONSIDERATION THEREOF, OBTAINS FROM THE
HIRER, MONEY OR OTHER PERSONAL PROPERTY, AND WHO ABANDONS THE SERVICE
OF SAID HIRER WITHOUT JUST CAUSE, WITHOUT FIRST RE-PAYING SUCH MONEY OR
PAYING FOR SUCH PERSONAL PROPERTY, SHALL BE DEEMED GUILTY OF A
MISDEMEANOR, AND ON CONVICTION THEREOF, SHALL BE PUNISHED BY A FINE NOT
LESS THAN FIVE NOR MORE THAN FIVE HUNDRED DOLLARS, OR BY IMPRISONMENT
IN THE COUNTY JAIL NOT LESS THAN THIRTY DAYS, NOR MORE THAN ONE YEAR,
OR BOTH FINE AND IMPRISONMENT."  FLORIDA LAWS 1891, C. 4032. 

FN16  IT PROVIDED: 

"SECTION 1.  THAT FROM AND AFTER THE PASSAGE OF THIS ACT ANY PERSON
IN THE STATE OF FLORIDA, WHO SHALL CONTRACT WITH ANOTHER TO PERFORM FOR
HIM SERVICES OF ANY KIND WITH INTENT TO PROCURE MONEY, OR OTHER THING
OF VALUE THEREBY, AND NOT TO PERFORM THE SERVICE CONTRACTED FOR, OR
WHOEVER, AFTER HAVING SO CONTRACTED, SHALL OBTAIN OR PROCURE FROM THE
HIRER MONEY OR OTHER THING OF VALUE, WITH INTENT NOT TO PERFORM SUCH
SERVICE, SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND ON CONVICTION
THEREOF SHALL BE PUNISHED BY FINE OF NOT MORE THAN ONE THOUSAND DOLLARS
OR BY IMPRISONMENT IN THE COUNTY JAIL NOT MORE THAN ONE YEAR, OR BY
BOTH FINE AND IMPRISONMENT. 

"SEC. 2.  THAT SATISFACTORY PROOF OF THE CONTRACT, THE PROCURING
THEREON OF MONEY OR OTHER THING OF VALUE, THE FAILURE TO PERFORM THE
SERVICES SO CONTRACTED FOR, OR FAILURE TO RETURN THE MONEY SO ADVANCED
WITH INTEREST THEREON AT THE TIME SAID LABOR OR SERVICE WAS TO BE
PERFORMED, WITHOUT GOOD AND SUFFICIENT CAUSE, SHALL BE DEEMED PRIMA
FACIE EVIDENCE OF THE INTENT REFERRED TO IN THE PRECEDING SECTION." 
FLORIDA LAWS 1907, C. 5678. 

FN17  "SECTION 1.  ANY PERSON IN THIS STATE WHO SHALL CONTRACT WITH
ANOTHER TO PERFORM ANY LABOR OR SERVICE AND WHO SHALL, BY REASON OF
SUCH CONTRACT AND WITH THE INTENT TO INJURE AND DEFRAUD, OBTAIN OR
PROCURE MONEY OR OTHER THING OF VALUE AS A CREDIT OR ADVANCES FROM THE
PERSON SO CONTRACTED WITH AND WHO SHALL, WITHOUT JUST CAUSE, FAIL OR
REFUSE TO PERFORM SUCH LABOR OR SERVICE OR FAIL OR REFUSE TO PAY FOR
THE MONEY OR OTHER THING OF VALUE SO RECEIVED UPON DEMAND, SHALL BE
GUILTY OF A MISDEMEANOR AND UPON CONVICTION THEREOF SHALL BE PUNISHED
BY A FINE NOT EXCEEDING FIVE HUNDRED DOLLARS OR BY IMPRISONMENT FOR A
PERIOD NOT EXCEEDING SIX MONTHS. 

"SEC. 2.  THAT CHAPTER 5678, ACTS OF 1907, BE AND THE SAME IS HEREBY
REPEALED. 

"SEC. 3.  THAT ALL LAWS IN CONFLICT WITH THE PROVISIONS OF THIS ACT
ARE HEREBY REPEALED."  FLORIDA LAWS 1913, C. 6528. 

FN18  GOODE V. NELSON, 73 FLA. 29, 74 SO. 17.  "AS 'INVOLUNTARY
SERVITUDE, EXCEPT AS A PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL
HAVE BEEN DULY CONVICTED,' IS FORBIDDEN 'WITHIN THE UNITED STATES' BY
THE FEDERAL CONSTITUTION, A CRIME TO BE PUNISHED BY IMPRISONMENT CANNOT
LAWFULLY BE PREDICATED UPON THE BREACH OF A PROMISE TO PERFORM LABOR OR
SERVICE."  73 FLA. AT 32. 

FN19  PHILLIPS V. BELL, 84 FLA. 225, 94 SO. 699.  IN THIS CASE NO
REFERENCE WAS MADE TO THE PRIOR DECISION OF THE FLORIDA COURT IN GOODE
V. NELSON, SUPRA NOTE 18. 

FN20  FLORIDA STATUTES (1941) SECS. 817.09, 817.10; FLORIDA LAWS
1943, C. 22000, APPROVED JUNE 10, 1943.  TAYLOR V. GEORGIA WAS DECIDED
JANUARY 12, 1942.  315 U.S. 25. 

FN21  "THAT THE QUESTION IS ONE OF FACT DOES NOT RELIEVE US OF THE
DUTY TO DETERMINE WHETHER IN TRUTH A FEDERAL RIGHT HAS BEEN DENIED. 
WHEN A FEDERAL RIGHT HAS BEEN SPECIALLY SET UP AND CLAIMED IN A STATE
COURT, IT IS OUR PROVINCE TO INQUIRE NOT MERELY WHETHER IT WAS DENIED
IN EXPRESS TERMS BUT ALSO WHETHER IT WAS DENIED IN SUBSTANCE AND
EFFECT.  IF THIS REQUIRES AN EXAMINATION OF EVIDENCE, THAT EXAMINATION
MUST BE MADE.  OTHERWISE, REVIEW BY THIS COURT WOULD FAIL OF ITS
PURPOSE IN SAFEGUARDING CONSTITUTIONAL RIGHTS.  THUS, WHENEVER A
CONCLUSION OF LAW OF A STATE COURT AS TO A FEDERAL RIGHT AND FINDINGS
OF FACT ARE SO INTERMINGLED THAT THE LATTER CONTROL THE FORMER, IT IS
INCUMBENT UPON US TO ANALYZE THE FACTS IN ORDER THAT THE APPROPRIATE
ENFORCEMENT OF THE FEDERAL RIGHT MAY BE ASSURED."  NORRIS V. ALABAMA,
294 U.S. 587, 589.  SEE LISENBA V. CALIFORNIA, 314 U.S. 219, 236;
CHAMBERS V. FLORIDA, 309 U.S. 227.  "EVEN THOUGH THE CONSTITUTIONAL
PROTECTION INVOKED BE DENIED ON NON-FEDERAL GROUNDS, IT IS THE PROVINCE
OF THIS COURT TO INQUIRE WHETHER THE DECISION OF THE STATE COURT RESTS
UPON A FAIR OR SUBSTANTIAL BASIS.  IF UNSUBSTANTIAL, CONSTITUTIONAL
OBLIGATIONS MAY NOT BE THUS EVADED."  BROAD RIVER POWER CO. V. SOUTH
CAROLINA, 281 U.S. 537, 540; DEMOREST V. CITY BANK FARMERS TRUST CO.,
321 U.S. 36. 

FN22  THE FLORIDA LEGISLATURE HAS MADE USE OF SEPARABILITY CLAUSES
WHERE SEPARABILITY WAS THE DESIRE.  SEE FLORIDA LAWS 1919, CC. 7808,
7936. 

FN23  FLORIDA STATUTES (1941) SEC. 817.01. 

FN24  FLORIDA STATUTES (1941) SEC. 817.29. 

FN25  THESE STATUTES CARRY PERMISSIBLE MAXIMUM PUNISHMENT SUCH,
HOWEVER, THAT THEY MAY BE PROSECUTED ONLY IN COURTS PRESIDED OVER BY
JUDGES REQUIRED TO BE LAWYERS AND WHERE PRESUMABLY DEFENDANT'S RIGHTS
ARE MORE ACCURATELY OBSERVED.  SEE FLORIDA CONSTITUTION, ART. V, SECS.
3, 17; FLORIDA STATUTES (1941) SECS. 32.05, 33.03, 36.01. 

FN26  DR. ALBERT BUSHNELL HART IN THE SOUTHERN SOUTH, AFTER REVIEWING
AND UNSPARINGLY CONDEMNING EVIDENCES OF PEONAGE IN SOME REGIONS, SAYS,
"MUCH OF THE PEONAGE IS SIMPLY A DESPERATE ATTEMPT TO MAKE MEN EARN
THEIR LIVING.  THE TROUBLE IS THAT NOBODY IS WISE ENOUGH TO INVENT A
METHOD OF COMPELLING SPECIFIC PERFORMANCE OF A LABOR CONTRACT WHICH
SHALL NOT CARRY WITH IT THE PRINCIPLE OF BONDAGE."  P. 287. 

FN27  UNITED STATES V. REYNOLDS, 235 U.S. 133, 149; LOEB V. JENNINGS,
133 GA. 796, 67 S.E. 101, AFFIRMED ON OTHER GROUNDS, 219 U.S. 582;
DUNBAR V. ATLANTA, 7 GA. APP. 434, 67 S.E. 107.  CF. CHICAGO V.
WILLIAMS, 254 ILL. 360, 98 N.E. 666; CHICAGO V. COLEMAN, 254 ILL. 338,
98 N.E. 521. 

FN28  BUTLER V. PERRY, 240 U.S. 328. 

FN29  REPORT ON PEONAGE, ABSTRACTS OF REPORTS OF THE IMMIGRATION
COMMISSION, VOL. II, P. 439, SEN. DOC. NO. 747, 61ST CONG., 3D SESS. 

FN30  THE OPERATION OF THE SYSTEM IS DESCRIBED AS FOLLOWS: 

"IN LATE YEARS THE NATIVES WHO FORMERLY SUPPLIED THE LABOR FOR THE
LOGGING CONCERNS IN THAT STATE HAVE BEEN ENGAGED IN THE PAPER MILLS,
AND THE LUMBER COMPANIES HAVE BEEN COMPELLED TO IMPORT LABORERS,
LARGELY FOREIGNERS, FROM OTHER STATES.  BOSTON IS THE CHIEF LABOR
MARKET FOR THE MAINE FORESTS.  THE EMPLOYMENT AGENTS MISREPRESENT
CONDITIONS IN THE WOODS, AND FREQUENTLY TELL THE LABORERS THAT THE
CAMPS WILL BE BUT A FEW MILES FROM SOME TOWN WHERE THEY CAN GO FROM
TIME TO TIME FOR RECREATION AND ENJOYMENT.  ARRIVING AT THE OUTSKIRTS
OF CIVILIZATION THE LABORERS ARE DRIVEN IN WAGONS A SHORT DISTANCE INTO
THE FORESTS AND THEN HAVE TO WALK SOMETIMES 60 OR 70 MILES INTO THE
INTERIOR, THE ROADS BEING IMPASSABLE FOR VEHICLES.  THE MEN WILL THEN
BE KEPT IN THE HEART OF THE FOREST FOR MONTHS THROUGHOUT THE WINTER,
LIVING IN A MOST RUGGED FASHION AND WITH NO RECREATION WHATEVER.  A
GREAT MANY OF THEM HAVE REBELLED AGAINST THIS TREATMENT, AND THEY HAVE
LEFT THEIR EMPLOYERS BY THE SCORE.  THE LUMBERMEN HAVING ADVANCED
TRANSPORTATION AND SUPPLIES HAVE APPEALED TO THE LEGISLATURE FOR
PROTECTION.  IN FEBRUARY, 1907, A BILL BECAME A LAW MAKING IT A CRIME
FOR A PERSON TO - 

ENTER INTO AN AGREEMENT TO LABOR FOR ANY LUMBERING OPERATION OR IN
DRIVING LOGS AND IN CONSIDERATION THEREOF RECEIVE ANY ADVANCES OF
GOODS, MONEY, OR TRANSPORTATION, AND UNREASONABLY AND WITH INTENT TO
DEFRAUD, FAIL TO ENTER INTO SAID EMPLOYMENT AS AGREED AND LABOR A
SUFFICIENT LENGTH OF TIME TO REIMBURSE HIS EMPLOYER FOR SAID ADVANCES
AND EXPENSES. 

JUDGES IN MUNICIPAL COURTS AND TRIAL JUSTICES WERE GIVEN JURISDICTION
TO TRY CASES UNDER THIS LAW, AND THE ACT PROVIDED THAT IT WOULD TAKE
EFFECT IMMEDIATELY UPON APPROVAL.  WHEN THIS BILL WAS BEFORE THE
LEGISLATURE, REQUESTS WERE MADE BY CITIZENS INTERESTED IN FACTORIES AND
OTHER INDUSTRIES THAT THE PROVISIONS OF THE STATUTE BE MADE TO PROTECT
ALL EMPLOYERS OF LABOR.  THE ATTORNEY WHO INTRODUCED THE BILL ON BEHALF
OF THE LUMBER INTERESTS WHICH HE REPRESENTED, HAS STATED THAT HE HAD
REFUSED TO ACCEDE TO THESE REQUESTS, INASMUCH AS HE BELIEVED THE
PROVISION SHOULD NOT BE EXTENDED.  THE PROTECTION GRANTED BY THE
STATUTE, THEREFORE, WAS RESTRICTED TO A FAVORED CLASS, PERSONS
INTERESTED IN 'LUMBERING OPERATIONS AND IN DRIVING LOGS.'"  PEONAGE
REPORT, SUPRA NOTE 29, P. 447. 

FN31  MINNESOTA STAT. (1941) SEC. 620.64. 

FN32  "THERE IS NO PROVISION IN THE MAINE STATUTE THAT - THE FAILURE
OR REFUSAL OF ANY EMPLOYEE TO PERFORM SUCH LABOR OR RENDER SUCH
SERVICES IN ACCORDANCE WITH HIS CONTRACT OR TO PAY IN MONEY THE AMOUNT
FOR SUCH TRANSPORTATION OR SUCH ADVANCEMENT SHALL BE PRIMA FACIE
EVIDENCE OF HIS INTENT TO DEFRAUD; 

AS APPEARS IN THE CONTRACT-LABOR LAW OF MINNESOTA AND IN THE STATUTES
OF OTHER STATES IN THE WEST AND THE SOUTH.  HOWEVER, JUSTICES OF THE
PEACE IN MAINE HAVE DECIDED INDISCRIMINATELY THAT, IN ORDER TO OBTAIN A
CONVICTION UNDER THE LAW OF THAT STATE, IT IS NECESSARY TO SHOW ONLY
THAT THE LABORER OBTAINED THE 'ADVANCES' AND FAILED 'TO LABOR A
SUFFICIENT LENGTH OF TIME TO REIMBURSE HIS EMPLOYER.' 

"A JUSTICE AT HOULTON, MAINE, WHO IS A LAWYER BY PROFESSION, TOLD THE
ATTORNEY REPRESENTING THE PEONAGE COMMITTEE THAT HE DECIDED IN CASES
BROUGHT UNDER THE CONTRACT-LABOR LAW THAT 'THE BURDEN OF PROOF IS UPON
THE DEFENDANT,' WHO MUST SHOW TO THE COURT 'BEYOND A REASONABLE DOUBT
THAT HE HAD NO INTENT TO DEFRAUD.'  THIS JUSTICE ADDED THAT ONCE IN A
WHILE IF A LABORER HAS A REALLY GOOD EXCUSE HE WILL LET HIM OFF, AS HE
BELIEVES 'EVERY MAN HAS SOME RIGHTS, ALTHOUGH HE MAY BE POOR.'  ANOTHER
JUSTICE OF THE PEACE AT PATTEN, MAINE, STATED THAT IF IT WAS SHOWN THAT
A LABORER HAD OBTAINED THE ADVANCES AND HAD NOT WORKED SUFFICIENTLY TO
SETTLE FOR THEM HE FOUND THE DEFENDANT GUILTY WITHOUT CONSIDERING THE
QUESTION OF INTENT TO DEFRAUD.  THIS SEEMS TO BE THE GENERAL ATTITUDE
OF THE RURAL JUSTICES OF MAINE TOWARD THE CONTRACT-LABOR LAW. 

"CONSIDERABLE PEONAGE HAS RESULTED FROM THIS STATUTE.  THE LAW HAS
BEEN VIGOROUSLY ENFORCED.  SOON AFTER ITS PASSAGE PROSECUTIONS WERE
COMMENCED IN THE LUMBER REGIONS, AND THE JAIL AT DOVER, THE COUNTY SEAT
OF ONE OF THE LARGE LUMBER COUNTIES OF MAINE, WAS CROWDED WITH LABORERS
CONVICTED OF DEFRAUDING THEIR EMPLOYERS OUT OF 'ADVANCES OF GOODS,
MONEY, OR TRANSPORTATION.'    "INVOLUNTARY SERVITUDE RESULTS IN
UTILIZING THIS STATUTE TO INTIMIDATE LABORERS TO WORK AGAINST THEIR
WILL.  ON ACCOUNT OF THE VIGOROUS METHODS PURSUED IN ENFORCING THE
ABOVE-DESCRIBED LAW, IT SOON BECAME KNOWN THROUGHOUT THE LUMBER REGION
OF MAINE THAT ANY LABORER WAS LIABLE TO IMPRISONMENT WHO REFUSED TO
WORK ACCORDING TO THE PROVISIONS OF HIS CONTRACT UNTIL HE HAD SETTLED
FOR ALL ADVANCES, NO MATTER WHAT MISREPRESENTATIONS MAY HAVE BEEN MADE
TO INDUCE HIM TO ENTER INTO THE AGREEMENT.  THE CONTRACT-LABOR LAW HAS
BECOME A CLUB WHICH THE FOREMEN AND SUPERINTENDENTS DRAW UPON THE
LABORERS WHO REFUSE TO GO TO WORK OR TO CONTINUE AT WORK.  IF A MAN
LEAVES HIS EMPLOYER BEFORE SETTLING FOR ADVANCES, HE WILL BE PURSUED
AND APPREHENDED, OR SOMEONE WILL TELEPHONE TO THE CONSTABLE, WHO WILL
ARREST THE LABORER.  HE WILL THEN BE BROUGHT BEFORE THE JUSTICE, AND
'SENT DOWN THE RIVER,' TO PRISON; OR IF HE CONSENTS TO LABOR UNTIL HE
SHALL HAVE REIMBURSED FOR ALL ADVANCES AND THE FINE AND COST OF THE
PROSECUTION, THE EMPLOYER WILL SETTLE WITH THE COURT AND CONSTABLE AND
WILL TAKE THE LABORER BACK INTO THE FOREST.  NO DOUBT MANY OF THE
LABORERS NEVER ATTEMPT TO ESCAPE, ALTHOUGH THEY MAY CONSIDER THAT THEY
HAVE BEEN BASELY DECEIVED ABOUT THE CONDITIONS OF LABOR."  PEONAGE
REPORT, SUPRA NOTE 29, PP. 448-49. 

FN33  THE COURT AT ONE TIME SAID, "THE LAW GIVES A DIFFERENT EFFECT
TO A REPRESENTATION OF EXISTING FACTS, FROM THAT GIVEN TO A
REPRESENTATION OF FACTS TO COME INTO EXISTENCE.  TO MAKE A FALSE
REPRESENTATION THE SUBJECT OF AN INDICTMENT, OR OF AN ACTION, TWO
THINGS ARE GENERALLY NECESSARY, VIZ., THAT IT SHOULD BE A STATEMENT
LIKELY TO IMPOSE UPON ONE EXERCISING COMMON PRUDENCE AND CAUTION, AND
THAT IT SHOULD BE THE STATEMENT OF AN EXISTING FACT.  A PROMISSORY
STATEMENT IS NOT, ORDINARILY, THE SUBJECT EITHER OF AN INDICTMENT OR OF
AN ACTION."  SAWYER V. PRICKETT, 19 WALL.  146, 160. 

FN34  273 U.S. 119. 

FN35  219 U.S. 219, 238. 

FN36  219 U.S. 219, 239. 

FN37  GOODE V. NELSON, SUPRA NOTE 18. 

FN38  ON THE PRACTICAL EFFECT OF SUCH LAWS AS AMOUNTING TO THE
EXISTENCE OF INVOLUNTARY SERVITUDE IN THE UNITED STATES, SEE:  PEONAGE,
ENCYCLOPEDIA OF SOCIAL SCIENCES; COMMONS & ANDREWS, PRINCIPLES OF LABOR
LEGISLATION, P. 37; WILSON, FORCED LABOR IN THE UNITED STATES, CHAPTERS
VI AND VII; "REPORT OF CHAS. W. RUSSELL, ASSISTANT ATTORNEY GENERAL,
RELATIVE TO PEONAGE MATTERS," IN REPORT OF ATTORNEY GENERAL (1937) P.
207; AND REPORT OF IMMIGRATION COMMISSION, SUPRA NOTE 29. 

MR. JUSTICE REED, DISSENTING: 

THE THIRTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
READS AS FOLLOWS: 

"SECTION 1.  NEITHER SLAVERY NOR INVOLUNTARY SERVITUDE, EXCEPT AS A
PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED,
SHALL EXIST WITHIN THE UNITED STATES, OR ANY PLACE SUBJECT TO THEIR
JURISDICTION. 

"SECTION 2.  CONGRESS SHALL HAVE POWER TO ENFORCE THIS ARTICLE BY
APPROPRIATE LEGISLATION." 

TO MEET THE PROBLEM OF PEONAGE, THAT IS, "COMPULSORY SERVICE IN
PAYMENT OF A DEBT,"  FN1 CONGRESS ENACTED THE LEGISLATION SET OUT IN
NOTE 8 OF THE COURT'S OPINION WHICH DECLARED INVALID LAWS OF A STATE BY
VIRTUE OF WHICH INVOLUNTARY SERVICE IS ENFORCED OR ATTEMPTED TO BE
ENFORCED IN LIQUIDATION OF ANY DEBT.  THIS COURT REITERATES TODAY IN
ACCORDANCE WITH ITS PREVIOUS RULINGS THAT THE SECOND SECTION OF THE
FLORIDA STATUTE, SEC. 817.10 SET OUT IN NOTE 1 OF TODAY'S OPINION, IS
INVALID UNDER THE THIRTEENTH AMENDMENT AND THE FEDERAL ACT BECAUSE THIS
SECOND SECTION ENFORCES LABOR BY FEAR OF CONVICTION OF THE CRIME
DENOUNCED IN THE FIRST SECTION.  THE SECOND SECTION PROVIDES THAT A
REFUSAL TO PERFORM LABOR FOR WHICH ONE HAS CONTRACTED AND BEEN PAID IN
ADVANCE IS PRIMA FACIE EVIDENCE OF AN INTENT TO DEFRAUD UNDER THE FIRST
UNDER A CONTRACT TO PERFORM LABOR.  THIS CONCLUSION IS ACCEPTED AS A
PROPER INTERPRETATION OF THE FEDERAL PROHIBITIONS.  IN THE EFFORT TO
OBLITERATE COMPULSORY LABOR TO SATISFY A DEBT, CONGRESS MAY INVALIDATE
A STATE LAW WHICH COERCES THAT LABOR BY FEAR OF A CONVICTION OBTAINED
BY A PRESUMPTION OF LAW WHICH MAY BE FALSE IN FACT.  TAYLOR V. GEORGIA,
315 U.S. 25. 

HOWEVER MUCH PEONAGE MAY OFFEND OUR SUSCEPTIBILITIES, AND HOWEVER
GREAT OUR DISTASTE FOR A STATUTE WHICH IS CAPABLE OF USE AS A MEANS OF
IMPOSING PEONAGE ON THE WORKING MAN, THE PRESENT STATUTE IS, IN THIS
COURT, NO MORE IMMUNE THAN ANY OTHER WHICH A STATE MAY ENACT, FROM THE
SALUTARY REQUIREMENT THAT ITS CONSTITUTIONALITY MUST BE PRESUMED, AND
THAT THE BURDEN RESTS ON HIM WHO ASSAILS IT, ON CONSTITUTIONAL GROUNDS,
TO SHOW THAT IT IS EITHER UNCONSTITUTIONAL ON ITS FACE OR THAT IT HAS
BEEN OR WILL BE IN FACT SO APPLIED AS TO DENY HIS CONSTITUTIONAL
RIGHTS. 

THIS COURT NOW HOLDS, AS IT HAS HELD BEFORE, THAT WHEN THE
PRESUMPTION SECTION IS APPLIED IN THE TRIAL OF A CRIMINAL CHARGE UNDER
THE SUBSTANTIVE SECTION, BOTH ARE INVALID AND A CONVICTION THUS
OBTAINED BY RESORT TO A PRESUMPTION OF LAW WHICH MAY BE FALSE IN FACT,
CANNOT BE SUSTAINED.  BUT THE COURT'S OPINION FAILS TO BRIDGE THE GAP
BETWEEN THESE EARLIER DECISIONS OF THE COURT AND ITS PRESENT CONCLUSION
THAT THE SUBSTANTIVE PROVISION, WHEN RESORTED TO ALONE AS THE BASIS FOR
A SENTENCE ON AN ADMISSION OF GUILT, IS LIKEWISE INVALID, BECAUSE OF
THE MERE EXISTENCE OF THE PRESUMPTION SECTION. 

WHETHER THIS CONCLUSION RESTS UPON THE GROUND THAT THE STATE OF
FLORIDA CANNOT CONSTITUTIONALLY MAKE IT A PENAL OFFENSE FOR A LABORER
FRAUDULENTLY TO PROCURE ADVANCES OF WAGES FOR WHICH HE INTENDS TO
RENDER NO SERVICE OR UPON THE GROUND THAT THE PRESUMPTION SECTION HAS
IN FACT OPERATED IN THIS CASE TO COERCE PETITIONER'S PLEA OF GUILTY,
THE ONE IS PLAINLY WITHOUT SUPPORT IN LAW AND THE OTHER IS WITHOUT
SUPPORT IN THE RECORD. 

SO FAR AS THE DECISION OF THE COURT RESTS ON THE GROUND THAT THE
SUBSTANTIVE SECTION IS UNCONSTITUTIONAL ON ITS FACE, THE DECISION
NECESSARILY PROCEEDS ON THE ASSUMPTION THAT BECAUSE OF THE THIRTEENTH
AMENDMENT A STATE IS WITHOUT POWER TO PUNISH A WORKMAN WHO FRAUDULENTLY
PROCURES AN ADVANCE OF A WAGE WHEN HE INTENDS NOT TO WORK FOR IT, OR
THAT THE TWO SECTIONS IN LAW AND IN FACT ARE INSEPARABLE IN THEIR
APPLICATION SO THAT THE SUBSTANTIVE SECTION IS TAINTED BY THE
PRESUMPTION SECTION, ALTHOUGH IN THIS CASE IT IS NOT SHOWN TO HAVE
INFLUENCED THE PLEA OF GUILTY. 

WE ARE GIVEN NO CONSTITUTIONAL REASON FOR SAYING THAT A STATE MAY NOT
PUNISH THE FRAUDULENT PROCUREMENT OF AN ADVANCE OF WAGES AS WELL AS THE
GIVING OF A CHECK DRAWN ON A BANK ACCOUNT IN WHICH THERE ARE NO FUNDS,
OR ANY OTHER COURSE OF CONDUCT WHICH THE COMMON LAW HAS LONG
RECOGNIZED, AS THE PROCURING OF MONEY OR PROPERTY BY FRAUD OR DECEIT. 
THERE IS OF COURSE NO CONSTITUTIONAL REASON WHY FLORIDA SHOULD NOT
PUNISH FRAUD IN LABOR CONTRACTS DIFFERENTLY FROM FRAUD IN OTHER CLASSES
OF CONTRACTS.  LEGISLATION NEED NOT SEEK TO CORRECT EVERY ABUSE BY A
SINGLE ENACTMENT.  THE STATE MAY SELECT ITS OBJECTIVE.  WHITNEY V.
CALIFORNIA, 274 U.S. 357, 370; TIGNER V. TEXAS, 310 U.S. 141, 149.  THE
CONSTITUTION DOES NOT REQUIRE THAT ALL PERSONS SHOULD BE TREATED ALIKE
BUT ONLY THAT THOSE IN THE SAME CLASS SHALL RECEIVE EQUAL TREATMENT. 

NOT ONLY HAS THE SUPREME COURT OF FLORIDA HELD AS A MATTER OF LAW
THAT THE TWO SECTIONS OF THE STATUTE NOW BEFORE US ARE SEPARABLE,  FN2
BUT IT IS OBVIOUS THAT AS A MATTER OF LAW THE PRESUMPTION SECTION IS
NOT CALLED INTO OPERATION WHERE, AS HERE, THE ACCUSED DOES NOT GO TO
TRIAL BUT PLEADS GUILTY TO THE SUBSTANTIVE CHARGE.  IN REJECTING THESE
CONCLUSIONS AS TO THE SEPARABILITY OF THE TWO SECTIONS, WE TAKE IT THAT
THE COURT IS NOT REJECTING THE SUPREME COURT OF FLORIDA'S
INTERPRETATION OF THE FLORIDA STATUTE, BUT RATHER THAT IT CONCLUDES AS
A MATTER OF FACT THAT THE PRESUMPTION SECTION IS SO ALL-PERVASIVE IN
ITS OPERATION THAT WE MUST CONCLUDE WITHOUT FURTHER PROOF THAT IT SO
OPERATED IN PETITIONER'S CASE AS TO COERCE HIS PLEA OF GUILTY TO THE
CHARGE OF VIOLATING THE SUBSTANTIVE SECTION. 

BUT NEITHER THE PRESENT RECORD NOR ANY FACTS OF WHICH WE CAN TAKE
JUDICIAL NOTICE LEND SUPPORT TO THAT CONCLUSION.  FOR ALL THAT APPEARS
PETITIONER HAD NO DEFENSE TO THE CHARGE EVEN THOUGH THE SUBSTANTIVE
ONLY BE GIVEN AN UNCONSTITUTIONAL APPLICATION, WE CANNOT SAY THAT
PETITIONER HAD ANY DEFENSE TO THE CHARGE OF FRAUD TO WHICH HE PLEADED
GUILTY, AND CERTAINLY WE CANNOT TREAT THE PRESUMPTION SECTION AS
DEPRIVING HIM OF A DEFENSE WHICH HE DID NOT HAVE. 

THE COURT APPARENTLY CONCLUDES THAT THE ENACTMENT AND MAINTENANCE OF
THE PRESUMPTION SECTION, AFTER A DETERMINATION HERE OF ITS INVALIDITY,
MAKES THE ENTIRE STATUTE INVALID ON ITS FACE.  THIS RESULT IS REACHED
BY ASSUMING THAT THE EXISTENCE OF THE PRESUMPTION SECTION COERCES
INVOLUNTARY LABOR UNDER THE CONTRACT BY FEAR OF CONVICTION FOR
VIOLATION OF THE FIRST OR SUBSTANTIVE SECTION.  WE CANNOT PROPERLY TAKE
JUDICIAL NOTICE OF SUCH AN EFFECT.  IF PLEADED AND PROVEN A DIFFERENT
SITUATION WOULD EMERGE. 

THE PETITION FOR HABEAS CORPUS IN THIS CASE CAN HARDLY BE SAID TO GO
FARTHER THAN OBJECT TO CONVICTION ON THE GROUND OF THE
UNCONSTITUTIONALITY OF THE FLORIDA STATUTE AS A WHOLE.  NO COERCION TO
PLEAD GUILTY IS ALLEGED.  THE STATEMENTS IN THE PETITION AS TO LACK OF
COUNSEL AND OF KNOWLEDGE OF THE ELEMENTS OF THE OFFENSE ARE REFERRED TO
IN THE COURT'S OPINION BUT WE DO NOT UNDERSTAND THAT THE COURT RELIES
UPON THEM.  NO USE WAS MADE OF THE PRESUMPTION SECTION AT THE TRIAL. 
PETITIONER PLEADED GUILTY TO THE SUBSTANTIVE CRIME.  NO ALLEGATIONS OR
PROOF APPEAR IN THE RECORD THAT THE FLORIDA STATUTE WAS USED OR APPLIED
TO PROMOTE PEONAGE OR INVOLUNTARY SERVITUDE OF PETITIONER OR TO COERCE
HIS PLEA OF GUILTY.  THE DECISION IS IN EFFECT THAT BECAUSE THE TWO
THE THIRTEENTH AMENDMENT AND THE PEONAGE ACT, EACH MUST BE TAKEN TO BE
INVALID ON ITS FACE.  THE PRESUMPTION OF CONSTITUTIONALITY OF STATUTES
IS A SAFEGUARD WISELY CONCEIVED TO KEEP COURTS WITHIN CONSTITUTIONAL
BOUNDS IN THE EXERCISE OF THEIR EXTRAORDINARY POWER OF JUDICIAL
REVIEW.  IT SHOULD NOT BE DISREGARDED HERE. 

WE CANNOT CONCLUDE THAT A STATUTE WHICH MERELY PUNISHES A FRAUD IN A
CONTRACT, AS THE FIRST SECTION DOES IF CONSIDERED ALONE, VIOLATES THE
PROVISION OF THE THIRTEENTH AMENDMENT AGAINST INVOLUNTARY SERVITUDE OR
IS NULL AND VOID UNDER 8 U.S.C. SEC. 56 BECAUSE IT IS AN ATTEMPT TO
ENFORCE COMPULSORY SERVICE FOR A DEBT.  CONVICTION UNDER THE STATUTE
RESULTS NOT IN PEONAGE, WORK FOR A DEBT, BUT IN PUNISHMENT FOR CRIME,
PROBABLY IN THE COUNTY WORKHOUSE.  CF. UNITED STATES V. REYNOLDS, 235
U.S. 133, 149.  THE CONCEPTION EMBODIED IN THE COURT'S OPINION THAT THE
FEAR OF CONVICTION FOR HIS FRAUD MIGHT COMPEL THE DEFENDANT TO WORK AS
AGREED IS WITHOUT BASIS IN THE RECORD.  AT ANY RATE, FEAR OF PUNISHMENT
IS SUPPOSED TO BE A DETERRENT TO CRIME. 

THE CONVICTION SHOULD BE AFFIRMED. 

FN1  BAILEY V. ALABAMA, 219 U.S. 219, 242. 

FN2  THE SUPREME COURT OF FLORIDA SAID:  "THIS IS NOT THE FIRST
CHALLENGE OF THE ACT WHICH HAS APPEARED IN THIS COURT.  THE IDENTICAL
MATTER WAS CONSIDERED IN PHILLIPS V. BELL, 84 FLA. 225, 94 SO. 699,
WHERE THE COURT CONCLUDED THAT THE PORTION OF THE LAW DEFINING THE
CRIME WAS HARMONIOUS WITH THE THIRTEENTH AMENDMENT, AND OBSERVED,
WITHOUT DECIDING THE POINT, THAT IF THE PART REFERRING TO THE PRIMA
FACIE CHARACTER OF CERTAIN EVIDENCE SHOULD BE PRONOUNCED
UNCONSTITUTIONAL THE RULING WOULD NOT AFFECT THE REMAINDER." 

THE COURT THEN TOOK UP BAILEY V. ALABAMA, 211 U.S. 452, AND NOTED AS
TO IT:  "WE THINK IT VERY SIGNIFICANT THAT THE COURT REMARKED UPON THE
LACK OF DOUBT THAT THE OFFENSES DEFINED COULD BE MADE A CRIME.  GIST OF
THE DECISION, AS WE UNDERSTAND IT, WAS, SUMMARIZING, THAT THE PART OF
THE LAW DESCRIBING THE CRIME AND THE ONE PROVIDING FOR THE PRESUMPTION
WERE NOT INTERDEPENDENT AND THAT IF, IN THE PROSECUTION, THE STATE DID
NOT RESORT TO THE LATTER THE VALIDITY OF THE FORMER WOULD BE
UNAFFECTED." 

LATER, SPEAKING OF OUR OPINION IN THE TAYLOR CASE, THE FLORIDA COURT
SAID: "THE SECTION ANENT PRESUMPTIVE EVIDENCE HAD BEEN RELIED UPON TO
SECURE A CONVICTION, SO THE COURT AGAIN HAD FOR DETERMINATION THE
QUESTION OF THE CONSTITUTIONALITY OF THE FIRST SECTION WHEN THE SECOND
WAS BROUGHT INTO PLAY.  NOT BEING FACED WITH THAT PROBLEM HERE WE
CONCLUDE THAT THE FIRST BAILEY DECISION AND OURS IN PHILLIPS V. BELL
ARE IN ACCORD AND THAT THEY IN TURN ARE NOT IN CONFLICT WITH THE
RULINGS IN THE SECOND BAILEY CASE AND TAYLOR V. GEORGIA, SUPRA." 

THE CHIEF JUSTICE JOINS IN THIS DISSENT. 
..END :




















BOSTON TOW BOAT CO. V. U.S., 321 U.S. 632 


NO. 385.  ARGUED MARCH 1, 2, 1944.  - DECIDED APRIL 3, 1944.  - APPEAL
DISMISSED. 


APPELLANT'S INTEREST IN THE OUTCOME OF A PROCEEDING IN WHICH THE
DISTRICT COURT DISMISSED A PETITION TO SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION, HELD INSUFFICIENT TO ENTITLE IT TO TAKE
A SEPARATE APPEAL FROM THE JUDGMENT.  JUDICIAL CODE, SEC. 210, AS
AMENDED.  P. 633. 

BOSTON TOW BOAT CO. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A JUDGMENT OF A DISTRICT COURT OF THREE JUDGES, 53
F.SUPP.  349, WHICH DISMISSED A PETITION TO SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APPELLANT, BOSTON TOW BOAT COMPANY, WAS AN INTERVENOR IN THE
PROCEEDINGS BEFORE THE INTERSTATE COMMERCE COMMISSION LEADING TO THE
COMMISSION'S DECISION AGAINST THE CORNELL STEAMBOAT COMPANY WHICH WE
TODAY HAVE HELD WAS PROPERLY SUSTAINED BY THE DISTRICT COURT.  CORNELL
STEAMBOAT CO. V. UNITED STATES, POST, P. 634.  WHEN CORNELL ATTACKED
THE COMMISSION'S ORDER IN THE DISTRICT COURT, BOSTON AGAIN INTERVENED. 
53 F.SUPP.  349.  ITS PETITION FOR INTERVENTION, GRANTED BY THE
DISTRICT COURT, ALLEGED THAT IT OPERATED TUGBOATS IN AND ABOUT BOSTON
HARBOR WHICH RENDERED SERVICES SOMEWHAT SIMILAR TO THOSE RENDERED BY
CORNELL IN NEW YORK HARBOR; THAT DIVISION 4 OF THE COMMISSION HAD HELD
IT, BOSTON, COVERED BY THE ACT; THAT IT WAS AGGRIEVED BY THE
COMMISSION'S DECISION AGAINST CORNELL "INSOFAR AS SAID DECISION HOLDS
THAT TOWERS FOR HIRE ARE CARRIERS AND SUBJECT TO THE TERMS AND
PROVISIONS OF PART III OF THE INTERSTATE COMMERCE ACT"; AND THAT IT
DESIRED TO PARTICIPATE IN THE DISTRICT COURT PROCEEDINGS "SOLELY FOR
THE PURPOSE OF ASSERTING ...  ITS SAID CONTENTIONS REGARDING SUCH
JURISDICTIONAL ISSUE."  BOSTON'S PETITION DID NOT ALLEGE, AND THE
RECORD FAILS TO SHOW, THAT IT HAD ANY FINANCIAL INTEREST IN CORNELL, OR
WAS ENGAGED IN COMPETITION WITH CORNELL, OR THAT ITS INTERESTS WOULD BE
ADVERSELY AFFECTED BY A DECISION AGAINST CORNELL EXCEPT INSOFAR AS THAT
DECISION MIGHT ESTABLISH A PRECEDENT HOLDING TUGBOATS SUBJECT TO THE
COMMISSION'S JURISDICTION UNDER PART III OF THE INTERSTATE COMMERCE
ACT.  BOSTON'S BRIEF IN THIS COURT ASSERTS THAT IT HAS PENDING IN THE
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS A SUIT TO ENJOIN AND
SET ASIDE THE COMMISSION'S ORDER HOLDING BOSTON COVERED BY THE ACT.  IN
ITS BRIEF BOSTON EXPRESSLY SEEKS TO RESERVE THE RIGHT TO CONTEND IN THE
MASSACHUSETTS PROCEEDING "THAT THE FACTS UNDERLYING ITS OWN TOWING
OPERATIONS ARE SUCH AS TO BRING THE QUESTION OF ITS STATUS OUTSIDE THE
SCOPE OF THAT OF A CARRIER." 

WE ARE OF OPINION THAT BOSTON'S INTEREST IN THE OUTCOME OF THE
CORNELL LITIGATION IS INSUFFICIENT TO ENTITLE IT TO TAKE A SEPARATE
APPEAL.  SEE JUDICIAL CODE, SECS. 210, 212, AS AMENDED, 28 U.S.C. SECS.
47A, 45A.  WHETHER BOSTON HAD SUFFICIENT INTEREST TO INTERVENE AS OF
RIGHT BEFORE THE COMMISSION AND IN THE DISTRICT COURT WE NEED NOT
DECIDE, THE ISSUE HERE BEING ONLY WHETHER BOSTON HAS SUCH AN
"INDEPENDENT RIGHT WHICH IS VIOLATED" BY THE DECISION AGAINST CORNELL
AS WILL SUPPORT AN INDEPENDENT APPEAL.  ALEXANDER SPRUNT & SON V.
UNITED STATES, 281 U.S. 249, 255.  CLEARLY IT HAS NOT.  SEE EDWARD
HINES TRUSTEES V. UNITED STATES, 263 U.S. 143; THE CHICAGO JUNCTION
CASE, 264 U.S. 258, 266-269; ALEXANDER SPRUNT & SON V. UNITED STATES,
SUPRA; PITTSBURGH & WEST VIRGINIA RY. CO. V. UNITED STATES, 281 U.S.
479, 486-488; MOFFAT TUNNEL LEAGUE V. UNITED STATES, 289 U.S. 113; CF.
KANSAS CITY SOUTHERN RY. CO. V. UNITED STATES, 282 U.S. 760; L. SINGER
& SONS V. UNION PACIFIC R. CO., 311 U.S. 295.  APPEAL DISMISSED. 
..END :






CORNELL STEAMBOAT CO. V. U.S., 321 U.S. 634 


NO. 384.  ARGUED MARCH 1, 2, 1944.  - DECIDED APRIL 3, 1944.  - 53
F.SUPP.  349, AFFIRMED. 


APPELLANT OPERATED TUGBOATS FOR HIRE IN AND ABOUT NEW YORK HARBOR AND
ON THE HUDSON RIVER.  THE TUGBOATS CARRIED NO CARGO BUT TOWED CARGO
VESSELS BELONGING TO OTHERS.  OPERATIONS WERE BETWEEN NEW YORK AND NEW
JERSEY, BUT MOSTLY BETWEEN POINTS IN NEW YORK AND OTHER POINTS IN THE
SAME STATE.  HELD: 

1.  APPELLANT WAS A "WATER CARRIER" WITHIN THE MEANING OF PART III OF
THE INTERSTATE COMMERCE ACT.  P. 636. 

2.  THE FINDING OF THE INTERSTATE COMMERCE COMMISSION THAT APPELLANT
WAS A "COMMON CARRIER BY WATER," WITHIN THE MEANING OF SEC. 302(D) OF
THE ACT, IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND IS SUSTAINED.  P.
637. 

3.  UNDER SEC. 302(I)(1) OF THE ACT, WHICH DEFINES "INTERSTATE
TRANSPORTATION" AS INCLUDING TRANSPORTATION "WHOLLY BY WATER FROM A
PLACE IN A STATE TO A PLACE IN ANOTHER STATE," APPELLANT'S TOWAGE
OPERATIONS BETWEEN NEW YORK AND NEW JERSEY WERE SUBJECT TO REGULATION. 
P. 638. 

4.  SECTION 302(I)(1) IS PROPERLY CONSTRUED TO APPLY ALSO TO
APPELLANT'S TOWAGE OPERATIONS BETWEEN POINTS IN NEW YORK AND OTHER
POINTS IN THE SAME STATE, WHERE IN THE COURSE OF SUCH OPERATIONS THE
TOWS REGULARLY CROSSED INTO NEW JERSEY WATERS.  P. 638. 

CORNELL STEAMBOAT CO. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A JUDGMENT OF A DISTRICT COURT OF THREE JUDGES, WHICH
DISMISSED A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

CORNELL OPERATES TUGBOATS FOR HIRE ON THE HUDSON RIVER AND IN AND
ABOUT NEW YORK HARBOR.  ITS TUGS CARRY NO CARGO BUT MOVE SCOWS, BARGES,
AND SIMILAR VESSELS BELONGING TO OTHERS WHICH THEMSELVES USUALLY CARRY
CARGO.  THIS TOWING SERVICE CORNELL OFFERS TO PERFORM FOR THE PUBLIC IN
GENERAL.  ABOUT NINETY-FIVE PER CENT OF THE VESSELS WHICH IT SERVES ARE
MOVED FROM POINTS IN NEW YORK TO OTHER POINTS IN THE SAME STATE, BUT
THESE MOVEMENTS GENERALLY TRAVERSE NEW JERSEY AS WELL AS NEW YORK
WATERS.  PART III OF THE INTERSTATE COMMERCE ACT  FN1  PROVIDES THAT
CONTRACT OR COMMON CARRIERS BY WATER IN INTERSTATE COMMERCE ARE SUBJECT
TO THE ACT'S REGULATING PROVISIONS.  IN APPROPRIATE PROCEEDINGS THE
INTERSTATE COMMERCE COMMISSION HELD CORNELL'S BUSINESS COVERED.  250
I.C.C. 301; 250 I.C.C. 577.  A THREE JUDGE DISTRICT COURT SUSTAINED THE
COMMISSION'S ORDER.  53 F.SUPP.  349.  THE CASE IS HERE ON DIRECT
APPEAL.  28 U.S.C. SECS. 47A, 345. 

FIRST.  CORNELL ARGUES THAT ITS TOWBOATS ARE NOT "WATER CARRIERS"
WITHIN THE MEANING OF PART III OF THE ACT.  LOOKING AT PART III, WE
FIND THAT, READ TOGETHER, SECS. 302(C), (D) AND (E) DEFINE A "WATER
CARRIER" AS ANY PERSON WHO ENGAGES IN THE "TRANSPORTATION BY WATER  ...
OF ...  PROPERTY ...  FOR COMPENSATION."  SECTION 302(H) DEFINES
"TRANSPORTATION" AS INCLUDING "ALL SERVICES IN OR IN CONNECTION WITH
TRANSPORTATION," AS WELL AS "THE USE OF ANY TRANSPORTATION FACILITY." 
ANY "VESSEL," WHICH MEANS ANY "WATERCRAFT," SEC. 302(F), IS SUCH A
FACILITY.  SEC. 302(G).  CONGRESS HAS THUS CAREFULLY AND EXPLICITLY SET
OUT THE CONDITIONS WHICH IN COMBINATION DESCRIBE THE KINDS OF CARRIERS
IT INTENDED TO SUBJECT TO REGULATION.  CORNELL'S TUGBOATS FALL SQUARELY
WITHIN THE DESCRIPTION.  IF FURTHER PROOF OF THIS BE NEEDED, SECS.
303(F)(1) AND (2) EXPRESSLY EXEMPT FROM REGULATION UNDER PART III
CERTAIN TYPES OF TOWAGE SERVICE, BUT NOT THAT SUCH AS CORNELL
PROVIDES.  CONGRESS HARDLY WOULD HAVE EXEMPTED SOME TOWERS, AS IT DID
IN THESE SECTIONS, HAD IT INTENDED TO EXEMPT ALL TOWERS. 

NEVERTHELESS, CORNELL ARGUES THAT THE ACT'S LANGUAGE, WHICH APPEARS
ON ITS FACE PLAINLY TO INCLUDE TRANSPORTATION BY MEANS OF TOWERS,
SHOULD NOT BE SO CONSTRUED.  IN SUPPORT OF THIS CONTENTION, IT IS SAID
THAT TOWERS DO NOT HAVE THAT COMMON LAW OR STATUTORY LIABILITY TO
SHIPPERS WHICH GENERALLY ATTACHES TO COMMON CARRIERS, SEE SUN OIL CO.
V. DALZELL TOWING CO., 287 U.S. 291; CF. THE MURRELL, 200 F. 826; AND
THAT A "CARRIER" HAS BEEN JUDICIALLY DEFINED AS ONE WHO UNDERTAKES TO
TRANSPORT THE GOODS OF ANOTHER, A DEFINITION NOT INCLUSIVE OF CORNELL,
SINCE IT DOES NOT MAKE CONTRACTS TO CARRY GOODS BUT ONLY TO MOVE
VESSELS WHICH HAVE GOODS ON THEM.  SEE SACRAMENTO NAVIGATION CO. V.
SALZ, 273 U.S. 326, 328; THE PROPELLER NIAGARA V. CORDES, 21 HOW.  7,
22.  BUT THE AUTHORITIES RELIED UPON BY CORNELL ARE OF LITTLE OR NO
ASSISTANCE HERE.  THE CASE AT BAR DOES NOT REQUIRE THAT WE DETERMINE AT
LARGE THE LEGAL OBLIGATIONS OF A TOWER OR DEFINE THE USUAL
CHARACTERISTICS OF A CARRIER.  WE ARE CALLED UPON ONLY TO INTERPRET A
SINGLE ACT OF CONGRESS.  WITH UNQUESTIONED POWER TO REGULATE CORNELL'S
BUSINESS, CONGRESS IN THIS ACT HAS GIVEN ITS OWN DEFINITION TO
CORNELL'S ACTIVITIES IN WORDS LITERALLY INCLUSIVE OF THOSE ACTIVITIES,
AND WHICH OPERATE TO SUBJECT TO THE ACT INTERSTATE ACTIVITIES IN THE
BUSINESS OF TOWING, WHICH AT COMMON LAW WAS A COMMON CALLING.  SPROUL
V. HEMMINGWAY, 14 PICK.  1, 6.  THE ACT IN WHICH CONGRESS HAS INCLUDED
THIS DEFINITION IS DESIGNED, NOT TO DETERMINE THE LEGAL STATUS OF
VESSELS FOR ALL PURPOSES,  FN2  BUT TO PROVIDE FOR REGULATION OF THE
RATES AND SERVICES OF COMPETING INTERSTATE WATER CARRIERS AS PART OF A
BROAD PLAN OF REGULATION FOR ALL TYPES OF COMPETING INTERSTATE
TRANSPORTATION FACILITIES.  CORNELL IS IN ACTIVE COMPETITION WITH OTHER
TYPES OF INTERSTATE WATER CARRIERS AS WELL AS WITH TRUCKS AND
RAILROADS.  THEREFORE, IF CORNELL'S PARTICULAR METHOD OF PROVIDING
WATER TRANSPORTATION FACILITIES FOR OTHERS IS NOT SUBJECT TO REGULATION
UNDER THE ACT, IT WOULD APPEAR TO PRESENT AN ANOMALOUS EXCEPTION TO THE
CONGRESSIONAL PLAN FOR REGULATION OF COMPETING TRANSPORTATION
ACTIVITIES.  WE CONCLUDE THAT THE LANGUAGE OF THE ACT BRINGS CORNELL'S
BUSINESS WITHIN ITS COVERAGE, AND THAT TO CONSTRUE THE ACT OTHERWISE
WOULD FRUSTRATE THE PURPOSE OF CONGRESS. 

SECOND.  CORNELL ARGUES THAT EVEN IF IT IS COVERED BY PART III OF THE
ACT, THERE WAS ERROR IN HOLDING IT TO BE A "COMMON" RATHER THAN A
"CONTRACT" CARRIER.  SECTION 302(D) DEFINES A "COMMON CARRIER" AS ONE
"WHICH HOLDS ITSELF OUT TO THE GENERAL PUBLIC TO ENGAGE IN THE
TRANSPORTATION BY WATER  ...  OF  ...  PROPERTY  ...  FOR
COMPENSATION."  THE COMMISSION FOUND FROM EVIDENCE OFFERED THAT CORNELL
DID SO HOLD ITSELF OUT TO THE GENERAL PUBLIC.  UPON REVIEW THE DISTRICT
COURT HELD THE COMMISSION'S FINDING WAS SUPPORTED BY SUBSTANTIAL
EVIDENCE.  THE OPINIONS OF THE COMMISSION AND THE DISTRICT COURT SHOWED
THE EVIDENCE RELIED ON AND IT IS UNNECESSARY TO REPEAT IT HERE. 
SUFFICIENT IT IS TO SAY THAT WE AGREE WITH THE DISTRICT COURT'S
CONCLUSION. 

THIRD.  THE FIVE PER CENT OF CORNELL'S BUSINESS WHICH CONSISTS OF
MOVING VESSELS BETWEEN NEW YORK AND NEW JERSEY PORTS IS UNQUESTIONABLY
COVERED BY THE ACT, BECAUSE SEC. 302(I)(1) SPECIFICALLY INCLUDES
TRANSPORTATION "WHOLLY BY WATER FROM A PLACE IN A STATE TO A PLACE IN
ANY OTHER STATE."  FN3  BUT ABOUT NINETY-FIVE PER CENT OF THE VESSELS
TOWED BY CORNELL ARE PICKED UP AT NEW YORK PORTS AND PULLED TO OTHER
PORTS IN THE SAME STATE.  CORNELL CONTENDS THAT NONE OF THESE MOVEMENTS
COME WITHIN THE COMMISSION'S JURISDICTION.  WE ACCEPT FINDINGS OF THE
COMMISSION AND THE DISTRICT COURT THAT AT LEAST A SUBSTANTIAL
PROPORTION OF THESE LATTER MOVEMENTS REGULARLY AND ORDINARILY PASS OVER
NEW JERSEY TERRITORIAL WATERS.  WHILE MOVING ON NEW JERSEY WATERS,
CORNELL'S VESSELS ARE NOT AT THAT TIME AT "A PLACE" IN NEW YORK. 
CERTAIN OF ITS TOWING ACTIVITIES THEREFORE ACTUALLY MOVE VESSELS FROM
PLACES IN NEW YORK TO PLACES IN NEW JERSEY AND THENCE BACK TO PLACES IN
NEW YORK.  SUCH MOVEMENTS, IF MADE ON LAND BY RAIL CARRIERS, WOULD BE
CLASSIFIED AS INTERSTATE FOR REGULATORY PURPOSES UNDER PREVIOUS
DECISIONS OF THIS COURT; FN4  AND, AS THE COMMISSION'S OPINION POINTS
OUT, THESE DECISIONS HAVE CAST GRAVE DOUBTS UPON THE POWER OF A SINGLE
STATE TO REGULATE SUCH MOVEMENTS IN WHOLE OR IN PART.  WATER
TRANSPORTATION BETWEEN TWO PORTS OF A SINGLE STATE MAY TOUCH MANY OTHER
STATES, AND PASS THROUGH HUNDREDS OF MILES OF OTHER STATES' WATERS, FAR
REMOVED FROM THE STATE IN WHICH THE TERMINAL PORTS OF THE VOYAGE ARE
LOCATED.  POWER OF THE COMMISSION TO REGULATE SUCH MOVEMENTS APPEARS TO
COME WELL WITHIN THE BROAD PURPOSES DECLARED BY CONGRESS IN PASSING
LEGISLATION DESIGNED COMPREHENSIVELY TO COORDINATE A NATIONAL SYSTEM OF
ALL TYPES OF TRANSPORTATION.  WE ARE UNPERSUADED THAT CONGRESS HAS
INADVERTENTLY LEFT SUCH A GAP IN ITS PLAN AS ACCEPTANCE OF CORNELL'S
ARGUMENT WOULD CREATE. 

THE PERTINENT LANGUAGE CONGRESS USED IN DEFINING WHAT SHOULD BE
INTERSTATE COMMERCE IN PART III OF THE ACT REGULATING WATER CARRIERS IS
TO ALL PRACTICAL INTENTS AND PURPOSES THE SAME AS IT USED IN PART I
REGULATING RAIL CARRIERS.  FN5 PART III OF THE ACT, INCLUDING THIS
DEFINITION, FIRST WAS DRAFTED IN THE HOUSE COMMITTEE ON INTERSTATE
COMMERCE AS PART OF A GENERAL REVISION OF AN OMNIBUS TRANSPORTATION
BILL (S. 2009) PROPOSED BY THE SENATE COMMITTEE ON INTERSTATE
COMMERCE.  SEE H.R. NO. 1217, 76TH CONG., 1ST SESS.  IN REPORTING ON
THE PROVISIONS OF PART III, THE HOUSE COMMITTEE, A BODY WELL ACQUAINTED
WITH TRANSPORTATION LEGISLATION, MADE THE STATEMENT THAT, "MOST OF THE
REGULATORY PROVISIONS INCLUDED IN THE NEW PART III WERE MODELED ON
PROVISIONS OF PART I DEALING WITH THE SAME SUBJECT."  ID., P. 18.  AT
THE TIME OF THIS REPORT, THE DEFINITION OF INTERSTATE COMMERCE IN PART
I UPON WHICH THAT IN PART III WAS MODELED HAD LONG BEFORE BEEN
INTERPRETED BOTH BY THE COMMISSION AND THE COURTS AS BROAD ENOUGH TO
COVER RAILROAD MOVEMENTS WHICH PASS THROUGH THE TERRITORY OF TWO
STATES, EVEN THOUGH THE FREIGHT BE CARRIED FROM A PLACE IN ONE STATE TO
ANOTHER PLACE IN THE SAME STATE.  MISSOURI PACIFIC R. CO. V. STROUD,
267 U.S. 404.  FN6 

PARTS I, II, AND IV OF THE INTERSTATE COMMERCE ACT, RELATING
RESPECTIVELY TO REGULATION OF RAIL CARRIERS, MOTOR CARRIERS, AND
FREIGHT FORWARDERS, EXPLICITLY OR BY JUDICIAL INTERPRETATION COVER ALL
SHIPMENTS WHICH PASS THROUGH THE TERRITORY OF TWO OR MORE STATES EVEN
THOUGH BOTH TERMINAL POINTS ARE IN THE SAME STATE.  FN7  AND SO IF
RAILROADS OR TRUCKERS SHOULD USE TUGS FOR THE SAME PURPOSES AND OVER
THE SAME ROUTE AS CORNELL THE MOVEMENTS WOULD BE INTERSTATE UNDER THE
ACT AND SUBJECT TO REGULATION BY THE COMMISSION; AND APPARENTLY THE
SAME IS TRUE OF FREIGHT FORWARDERS.  FROM THE LANGUAGE OF PART III OF
THE ACT, ITS HISTORY, AND ITS GENERAL PURPOSE, WE CONCLUDE THAT THE
COMMISSION AND DISTRICT COURT CORRECTLY DECIDED CORNELL'S
TRANSPORTATION THROUGH NEW YORK AND NEW JERSEY WATERS ALSO IS SUBJECT
TO REGULATION BY THE COMMISSION.  FN8  AFFIRMED. 

FN1  TRANSPORTATION ACT OF 1940, C. 722, 54 STAT. 898, 929. 

FN2  COMPARE SEC. 320(D) OF PART III OF THE ACT:  "NOTHING IN THIS
PART SHALL BE CONSTRUED TO AFFECT ANY LAW OF NAVIGATION, THE ADMIRALTY
JURISDICTION OF THE COURTS OF THE UNITED STATES, LIABILITIES OF VESSELS
AND THEIR OWNERS FOR LOSS OR DAMAGE, OR LAWS RESPECTING SEAMEN, OR ANY
OTHER MARITIME LAW, REGULATION, OR CUSTOM NOT IN CONFLICT WITH THE
PROVISIONS OF THIS PART."  49 U.S.C. SEC. 920(D); 54 STAT. 950. 

FN3  THIS SECTION SHOULD BE READ TOGETHER WITH SECS. 303(J) AND (K)
OF PART III WHICH ARE AS FOLLOWS: 

"(J)  NOTHING IN THIS PART SHALL BE CONSTRUED TO INTERFERE WITH THE
EXCLUSIVE EXERCISE BY EACH STATE OF THE POWER TO REGULATE INTRASTATE
COMMERCE BY WATER CARRIERS WITHIN THE JURISDICTION OF SUCH STATE. 

"(K)  NOTHING IN THIS PART SHALL AUTHORIZE THE COMMISSION TO
PRESCRIBE OR REGULATE ANY RATE, FARE, OR CHARGE FOR INTRASTATE
TRANSPORTATION, OR FOR ANY SERVICE CONNECTED THEREWITH, FOR THE PURPOSE
OF REMOVING DISCRIMINATION AGAINST INTERSTATE COMMERCE OR FOR ANY OTHER
PURPOSE." 

THE WORDS "INTRASTATE COMMERCE" AND "INTRASTATE TRANSPORTATION" AS
USED IN THESE TWO SUBSECTIONS ARE NOT EXPRESSLY DEFINED IN PART III. 

FN4  HANLEY V. KANSAS CITY SOUTHERN RY. CO., 187 U.S. 617.  THE RULE
OF THE HANLEY CASE HAS NOT BEEN CHANGED BY THE CASES HOLDING THAT
COMPANIES ENGAGED IN SUCH TRANSPORTATION MOVEMENTS ARE SUBJECT TO
TAXATION BY THE STATE WHERE THE TERMINAL POINTS ARE LOCATED.  SEE
CORNELL STEAMBOAT CO. V. SOHMER, 235 U.S. 549; LEHIGH VALLEY R. CO. V.
PENNSYLVANIA, 145 U.S. 192; EWING V. LEAVENWORTH, 226 U.S. 464, 468
469. 

COMPARE WILMINGTON TRANSPORTATION CO. V. RAILROAD COMM'N, 236 U.S.
151, 155-156, WHICH HELD THAT TRANSPORTATION ON THE HIGH SEAS BETWEEN
TWO POINTS WITHIN THE STATE OF CALIFORNIA, SANTA CATALINA ISLAND AND
SAN PEDRO, BEING "LOCAL" AND NOT INVOLVING "PASSAGE THROUGH THE
TERRITORY OF ANOTHER STATE," WAS SUBJECT TO RATE REGULATION BY
CALIFORNIA IN THE ABSENCE OF CONTROLLING FEDERAL LEGISLATION. 

FOR A GENERAL SURVEY OF STATE AND FEDERAL LEGISLATION PERTAINING TO
REGULATION OF WATER CARRIERS, SEE REGULATION OF TRANSPORTATION
AGENCIES, SENATE DOCUMENT NO. 152, 73D CONG., 2D SESS., PP. 5-13, 98
170. 

FN5  SEE NOTE 7, INFRA. 

FN6  SEE ALSO WELLS-HIGMAN CO. V. ST. LOUIS, I.M. & S. RY. CO., 18
I.C.C. 175, 176; WILLMAN & CO. V. ST. LOUIS, I.M. & S. RY. CO., 22
I.C.C. 405; SECURITY CEMENT & LIME CO. V. BALTIMORE & OHIO R. CO., 113
I.C.C. 579; UNITED STATES V. DELAWARE, L. & W.R. CO., 152 F. 269, 271
272(C.C.S.D.N.Y.). 

FN7  PART I, SEC. 1(1) OF THE ACT CONFERS JURISDICTION OVER
"TRANSPORTATION  ...  WHOLLY BY RAILROAD  ...  FROM ONE STATE  ...  TO
ANY OTHER STATE."  49 U.S.C. SEC. 1(1); 24 STAT. 379 AS AMENDED.  AS
PREVIOUSLY STATED THIS HAS BEEN CONSTRUED TO INCLUDE TRANSPORTATION
STARTING IN ONE STATE, PASSING THROUGH A SECOND STATE, AND RETURNING TO
THE FIRST STATE.  SEE NOTE 6, SUPRA. 

PART II, SEC. 203(A)(10) OF THE ACT DEFINES THE "INTERSTATE COMMERCE"
BY MOTOR VEHICLE OVER WHICH THE COMMISSION HAS JURISDICTION AS
INCLUDING "COMMERCE  ...  BETWEEN PLACES IN THE SAME STATE THROUGH
ANOTHER STATE.  ... "  49 U.S.C. SEC. 303(10); 49 STAT. 543, 544, AS
AMENDED. 

AND PART IV, SEC. 402(A)(6) DEFINES THAT TRANSPORTATION WHICH SHALL
BE DEEMED "INTERSTATE COMMERCE" FOR THE PURPOSE OF REGULATION OF
FREIGHT FORWARDERS AS INCLUDING "TRANSPORTATION  ... BETWEEN POINTS
WITHIN THE SAME STATE BUT THROUGH ANY PLACE OUTSIDE THEREOF."  49
U.S.C. SEC. 1002(A)(6); 56 STAT. 284, 285. 

FN8  AS REPORTED IN THE SENATE, THE ORIGINAL OMNIBUS TRANSPORTATION
BILL (S. 2009) CONTAINED A SINGLE DEFINITION OF "INTERSTATE COMMERCE"
APPLICABLE ALIKE TO RAIL, MOTOR, AND WATER CARRIERS. THIS DEFINITION
EMBODIED THE HOLDING OF THE STROUD CASE (267 U.S. 404) CITED IN OUR
OPINION BY EXPRESSLY INCLUDING "TRANSPORTATION  ...  BETWEEN PLACES IN
THE SAME STATE BY A ROUTE  ... PASSING BEYOND THE BORDERS OF SAID
STATE."  SEC. 3(25), BILL S. 2009, REPORTED TO THE SENATE MAY 16,
1939.  IT HAS BEEN SUGGESTED THAT THE FAILURE OF THE HOUSE COMMITTEE'S
REVISION OF BILL S. 2009 TO RETAIN THIS PART OF THE DEFINITION
CONTAINED IN THE ORIGINAL BILL INDICATES AN INTENTION THAT THE RULE OF
THE STROUD CASE SHOULD NOT APPLY TO WATER TRANSPORTATION.  IN REACHING
OUR CONCLUSION IN THE PRESENT CASE, WE HAVE CONSIDERED THIS SUGGESTION
AND HAVE REJECTED IT FOR SEVERAL REASONS.    IN THE FIRST PLACE, THE
HOUSE COMMITTEE'S FAILURE TO RETAIN IN PART III THE PARTICULAR LANGUAGE
OF THE DEFINITION OF "INTERSTATE COMMERCE" IN ORIGINAL S. 2009 IS
SUFFICIENTLY EXPLAINED BY THE FACT, NOTED IN THE BODY OF OUR OPINION,
THAT THE COMMITTEE MODELED PART III, NOT UPON THE PROVISIONS OF
ORIGINAL S. 2009, BUT UPON THE EXISTING PART I OF THE ACT.  AND FROM
THE REPORT OF THE HOUSE COMMITTEE, A BODY EXPERIENCED IN MATTERS OF
TRANSPORTATION LEGISLATION, WE MAY FAIRLY INFER THAT, IN THUS USING THE
LANGUAGE OF PART I, IT HAD IN MIND THE SAME OBJECTIVE AS THE SENATE
COMMITTEE WHICH DRAFTED THE ORIGINAL S. 2009, NAMELY TO SAVE "SO FAR AS
POSSIBLE THE EXISTING LANGUAGE SO THAT FULL ADVANTAGE MAY BE TAKEN OF
THE MANY INTERPRETATIONS, BOTH JUDICIAL AND ADMINISTRATIVE, WHICH HAVE
BEEN PUT UPON THE RESPECTIVE SECTIONS."  SEE S.R. NO. 433, 76TH CONG.,
1ST SESS., P. 4; AND H.R. NO. 1217, 76TH CONG., 1ST SESS., PP. 18-19. 
CF. MCLEAN TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 77-80. 

FURTHERMORE, HAD THE EXPERIENCED HOUSE COMMITTEE INTENDED TO PLACE IN
PART III A DEFINITION OF "INTERSTATE COMMERCE" DIFFERENT IN SCOPE FROM
THAT IN PART I, IT HARDLY WOULD HAVE EXPRESSED SUCH AN INTENTION BY
ADOPTING SUBSTANTIALLY THE IDENTICAL LANGUAGE OF PART I. BUT NEITHER
THE HOUSE NOR THE SENATE COMMITTEE APPEARS TO HAVE HAD ANY SUCH
INTENTION.  AS SHOWN BY THEIR REPORTS AND THE LANGUAGE OF THE BILLS
WHICH THEY DRAFTED, THE INTENTION OF BOTH COMMITTEES, AND OF CONGRESS,
WAS TO PROVIDE FOR REGULATION OF THE SAME SORT OF INTERSTATE WATER
SHIPMENTS AS ALREADY WERE BEING REGULATED IN THE CASE OF INTERSTATE
RAIL SHIPMENTS.  SEE H.R. NO. 1217, SUPRA; S.R. NO. 433, SUPRA. 

MR. JUSTICE FRANKFURTER, DISSENTING IN PART: 

WHEN IN 1940 CONGRESS PROVIDED FOR THE REGULATION OF WATER CARRIERS
IN INTERSTATE AND FOREIGN COMMERCE, IT DEFINED "TRANSPORTATION IN
INTERSTATE  ...  COMMERCE" FOR THE PURPOSE OF SUCH REGULATION TO MEAN
"TRANSPORTATION OF PERSONS OR PROPERTY - (1) WHOLLY BY WATER FROM A
PLACE IN A STATE TO A PLACE IN ANY OTHER STATE, WHETHER OR NOT SUCH
TRANSPORTATION TAKES PLACE WHOLLY IN THE UNITED STATES."  SEC.
302(I)(1) OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 898, 929, 49
U.S.C. SEC. 902(I)(1).  TO THE EXTENT THAT THE DECISION OF THE COURT
CONSTRUES THE FIELD OF REGULATION THUS DEFINED BY CONGRESS TO INCLUDE
TUGBOATS MOVING ON THE HUDSON RIVER FROM PLACE TO PLACE IN NEW YORK
SIMPLY BECAUSE THEY LEAVE THE NEW YORK BOUNDARY OF THE RIVER AND
NAVIGATE ON WHAT ARE DEEMED JERSEY WATERS, I DISSENT. 

THE PROBLEM IS HERE, AS IT WAS BEFORE THE COMMISSION, FOR THE FIRST
TIME.  AND THE COURT'S DUTY OF CONSTRUCTION IS NOT AIDED BY THE LIGHT
OF CONTINUOUS ADMINISTRATIVE PRACTICE, THOUGH OF COURSE EVEN THE
INITIAL CONCLUSION BY THE COMMISSION ON SUCH A QUESTION OF LAW SHOULD
HAVE ITS WEIGHT.  BUT SINCE THE MATTER ULTIMATELY TURNS ON GENERAL
CONSIDERATIONS REGARDING THE MANNER IN WHICH LEGISLATION SHOULD BE
CONSTRUED, I DEEM IT APPROPRIATE TO ADD A FEW WORDS TO THE VIEWS
EXPRESSED BY COMMISSIONER SPLAWN THAT PART III OF THE INTERSTATE
COMMERCE ACT DOES NOT BRING WITHIN THE REGULATORY POWERS OF THE
INTERSTATE COMMERCE COMMISSION TRANSPORTATION ON A BOUNDARY STREAM
BETWEEN POINTS IN THE SAME STATE MERELY BECAUSE A WATER CARRIER CROSSES
A STATE BOUNDARY IN A STREAM. 

THE TERMS BY WHICH CONGRESS CONFERRED JURISDICTION UPON THE
COMMISSION SUCCESSIVELY OVER RAIL CARRIERS, MOTOR CARRIERS AND WATER
CARRIERS ARE DIFFERENT.  IN A FIELD SO WELL TRODDEN AS THIS, INVOLVING
AS IT DOES THE DISTRIBUTION OF AUTHORITY AS BETWEEN STATES AND NATION
OVER TRANSPORTATION FACILITIES OF INTEREST TO BOTH GOVERNMENTS, ONE
WOULD SUPPOSE THAT ONLY THE ENVIRONMENT OF LEGISLATION AND THE HISTORY
OF ITS ENACTMENT COULD DISLODGE THE NATURAL ASSUMPTION THAT DIFFERENT
LITERARY ROADS TAKEN BY CONGRESS HAD DIFFERENT OBJECTIVES.  FOR WE ARE
HERE CONCERNED WITH THREE DIFFERENT DEFINITIONS HAVING DIFFERENT
GENEALOGIES IN THE GENERAL FIELD OF REGULATION INCORPORATED IN ONE
PIECE OF LEGISLATION, NAMELY THE TRANSPORTATION ACT OF 1940.  THERE IS
NOTHING IN THE LEGISLATIVE HISTORY OF THE EXTENT OF THE POWER OVER
TRANSPORTATION BY WATER CARRIAGE COMMITTED TO THE COMMISSION TO SHOW
THAT CONGRESS MEANT THAT THE PHRASING WHICH IT EMPLOYED WAS IN PURPOSE
TO BE IDENTIC WITH THE DIFFERENT PHRASINGS CONGRESS USED AS TO RAIL AND
MOTOR CARRIERS.  THE LEGISLATIVE HISTORY INDICATES THE CONTRARY. 

THE CULLOM ACT OF 1887, AS IS WELL KNOWN, WAS IN DIRECT RESPONSE TO
WABASH, ST. L. & P. RY. CO. V. ILLINOIS, 118 U.S. 557.  THAT DECISION
RESTED FUNDAMENTALLY ON THE VIEW THAT RAIL TRANSPORTATION HAS A
PHYSICAL UNITY AND TO SUCH AN EXTENT THAT, AS HELD VERY EARLY,
REGULATION OF RAIL RATES CANNOT BE "SPLIT UP" BETWEEN TWO STATES OR
LEFT ONLY TO ONE STATE EVEN AS TO TRANSPORTATION WHICH BEGINS AND ENDS
IN THE SAME STATE BUT PASSES THROUGH THE TERRITORY OF ANOTHER.  SEE
HANLEY V. KANSAS CITY SOUTHERN RY. CO., 187 U.S. 617.  THE TERMS IN
WHICH CONGRESS GRANTED REGULATORY POWER OVER RAILROADS TO THE
INTERSTATE COMMERCE COMMISSION REFLECTED THIS VIEW.  THE COMMISSION WAS
AUTHORIZED TO REGULATE RAIL TRANSPORTATION "FROM ONE STATE  ...  TO ANY
OTHER STATE," BUT THE PROVISIONS OF THE ACT WERE NOT TO APPLY "TO THE
TRANSPORTATION  ...  WHOLLY WITHIN ONE STATE  ...  "  SEC. 1 OF THE ACT
TO REGULATE COMMERCE, 24 STAT. 379, 49 U.S.C. SECS. 1(1), (2)(A).  WHEN
CONGRESS IN 1935 BROUGHT MOTOR CARRIERS WITHIN THE REGULATORY POWERS OF
THE COMMISSION, IT WAS NOT CONTENT TO DEFINE THE SCOPE OF THE
TRANSPORTATION TO BE REGULATED IN TERMS OF THE SCOPE OF THE REGULATED
RAILROAD TRANSPORTATION.  IT DEFINED THE MOTOR TRANSPORTATION TO BE
REGULATED TO INCLUDE "COMMERCE BETWEEN ANY PLACE IN A STATE AND ANY
PLACE IN ANOTHER STATE OR BETWEEN PLACES IN THE SAME STATE THROUGH
ANOTHER STATE."  SEC. 203(A)(10) OF THE MOTOR CARRIER ACT OF 1935, 49
STAT. 543, 544, 49 U.S.C. SEC. 303(A)(10).  IT USED THIS EXPLICIT AND
PRECISE LANGUAGE BECAUSE THE CONDITIONS OF MOTOR TRANSPORTATION IN
RELATION TO STATE CONTROL DIFFER FROM THE CONDITIONS OF INTERSTATE
RAILROAD TRANSPORTATION, AND IT WISHED TO LEAVE NO DOUBT WHATEVER THAT
IT WAS REGULATING RATES ON MOTOR TRANSPORTATION WITHIN THE SAME STATE
THROUGH ANOTHER.  THE SAME EXPLICITNESS WAS AGAIN USED BY CONGRESS WHEN
IN 1942 IT SWEPT FREIGHT FORWARDERS WHO SERVE INTERSTATE TRANSPORTATION
WITHIN FEDERAL CONTROL.  SEC. 402(A)(6), 56 STAT. 284, 285, 49 U.S.C.
(SUPP. 1942) SEC. 1002(A)(6). 

A TOTALLY DIFFERENT SITUATION WAS PRESENTED TO CONGRESS BY THE HEAVY
WATER TRAFFIC ON BOUNDRY STREAMS THROUGHOUT THE COUNTRY.  IN HIS REPORT
AS FEDERAL COORDINATOR OF TRANSPORTATION, THE LATE COMMISSIONER EASTMAN
POINTED OUT THAT THIRTY-TWO STATES HAD LAWS REGULATING WATER
TRANSPORTATION "ON INLAND WATERS AND IN SOME INSTANCES ON BORDERING
STREAMS OR LAKES AND COASTAL WATERS."  SEN. DOC. NO. 152, 73D CONG., 2D
SESS., P. 158.  THIS COURT, IN PORT RICHMOND FERRY CO. V. HUDSON
COUNTY, 234 U.S. 317, HAD OCCASION TO CALL ATTENTION TO THIS LIVELY
WATER TRAFFIC WHICH, THROUGHOUT OUR HISTORY, PRESENTED "A SITUATION
ESSENTIALLY LOCAL REQUIRING REGULATION ACCORDING TO LOCAL CONDITIONS." 
234 U.S. AT 332.  FOR THAT REASON IT SUSTAINED STATE REGULATION OF
FERRY RATES EVEN FOR TRANSPORTATION FROM ONE STATE TO ANOTHER.  FN1
THE DOCTRINE OF HANLEY V. KANSAS CITY SOUTHERN RY. CO., SUPRA, IS THUS
A DOCTRINE APPLICABLE TO RAILROADS AND HAS NOT BEEN APPLIED TO WATER
CARRIERS.  SEE WILMINGTON TRANSPORTATION CO. V. RAILROAD COMM'N, 236
U.S. 151, 155-156. 

IN 1940 CONGRESS DID UNDERTAKE TO REGULATE WATER TRANSPORTATION.  BUT
IN VIEW OF THE DIFFERENT WAYS IN WHICH RAIL, MOTOR AND WATER
TRANSPORTATION ARE ENTANGLED WITH STATE INTERESTS AND THEREFORE STATE
AUTHORITY, IT BECOMES VITAL TO HEED THE EXACT LANGUAGE IN WHICH
CONGRESS EXPRESSED ITS PURPOSE OF REGULATION AND THE MANNER IN WHICH IT
FINALLY PASSED THE PROVISIONS BY WHICH IT DEFINED THE COMMISSION'S
AUTHORITY. 

IN A WORD, THE BILL AS ENACTED WAS IN QUITE A DIFFERENT FORM FROM THE
BILL AS ORIGINALLY INTRODUCED.  AS THE BILL CAME OUT OF THE SENATE
COMMITTEE ON INTERSTATE COMMERCE AND AS PASSED BY THE SENATE IT HAD
THIS PROVISION:  "THE TERM 'INTERSTATE COMMERCE' MEANS TRANSPORTATION
...  FROM A PLACE IN ONE STATE  ...  TO A PLACE IN ANOTHER STATE  ...
OR BETWEEN PLACES IN THE SAME STATE BY A ROUTE OR ROUTES PASSING BEYOND
THE BORDERS OF SAID STATE  ...  "  84 CONG. REC. 5964.  THIS WAS NOT
MERELY A CHOICE OF LANGUAGE BUT A CHOICE OF PURPOSE.  THE COMMITTEE AND
THE SENATE, THAT IS, ASSERTED A CONTROL AS EXTENSIVE AS THAT WHICH
CONGRESS ASSERTED IN 1935 OVER MOTOR CARRIERS.  THE PRACTICAL RESULT OF
THE PURPOSE THUS MANIFESTED WAS TO EXCLUDE STATE CONTROL OVER WATER
CARRIERS FROM PORT TO PORT IN THE SAME STATE BUT ENTERING THE WATER OF
A BORDER STATE.  THE HOUSE EVIDENTLY HAD OTHER VIEWS, FOR THAT
PROVISION WAS DELETED AFTER THE SENATE BILL WAS COMMITTED TO THE HOUSE
COMMITTEE.  THAT COMMITTEE REPORTED AND THE HOUSE PASSED THIS
RESTRICTIVE PROVISION: "THE TERM 'INTERSTATE OR FOREIGN TRANSPORTATION'
...  MEANS TRANSPORTATION OF PERSONS OR PROPERTY - (1) WHOLLY BY WATER
FROM A PLACE IN A STATE TO A PLACE IN ANY OTHER STATE, WHETHER OR NOT
SUCH TRANSPORTATION TAKES PLACE WHOLLY IN THE UNITED STATES."  84 CONG.
REC. 9956.  THE SENATE RECEDED FROM ITS FORMULATION (H. REP. NO. 2016,
76TH CONG., 3D SESS., P. 30), AND THE RESTRICTIVE HOUSE PROVISION
BECAME THE LAW.  BUT WE ARE NOW TOLD THAT THIS CHANGE FROM EXPLICIT
ASSUMPTION OF JURISDICTION IS MEANINGLESS, AND THE FACT THAT THE
PROVISION IN THE SENATE BILL WAS LEFT OUT AS THE BILL WENT THROUGH THE
HOUSE, THE CONFERENCE AND TO PASSAGE HAS PRECISELY THE SAME
SIGNIFICANCE AS THOUGH THE ORIGINAL SENATE PROVISION HAD REMAINED IN
IT.  AS TO THIS AS WELL AS OTHER PHASES OF WATER TRANSPORTATION,
CONGRESS CIRCUMSCRIBED THE COMMISSION'S AUTHORITY AND LEFT STATE
REGULATION TO CONTINUE TO OPERATE AS TO MATTERS WHICH, IN THE CASE OF
RAIL AND MOTOR TRANSPORTATION, FEDERAL CONTROL HAS BEEN ASSERTED.  THUS
FOR INSTANCE, USE OF THE SHREVEPORT DOCTRINE (SEE HOUSTON, E. & W.T.
RY. CO. V. UNITED STATES, 234 U.S. 342) - THE CONTROL OVER STATE RATES
DISCRIMINATORY AGAINST INTERSTATE RATES - IS EXPLICITLY DENIED (SEC.
303(K)), AND NUMEROUS OTHER EXCEPTIONS AND EXEMPTIONS SHOW
"CONGRESSIONAL INTENT TO CONFER MORE LIMITED JURISDICTION THAN HAS BEEN
GIVEN IN THE OTHER PARTS OF THE ACT."  250 I.C.C. 577, 586. 

NO DOUBT, AS THE HOUSE COMMITTEE SAID, "MOST OF THE REGULATORY
PROVISIONS INCLUDED IN THE NEW PART III WERE MODELED ON PROVISIONS OF
PART I DEALING WITH THE SAME SUBJECT."  H.R. NO. 1217, 76TH CONG., 1ST
SESS., P. 18.  IN ITS CONTEXT, THE IDEA BEHIND THE PHRASE "REGULATORY
PROVISIONS" BEARS ON HOW TO REGULATE, NOT WHAT IS REGULATED.  AND THE
FACT THAT "MOST" PROVISIONS WERE THE SAME, NOT ALL, INDICATES THAT
VARIATIONS FROM PART I WERE MADE IN PART III.  WHEN THEREFORE WE FIND
DIFFERENCES IN DEFINITION OF THE "COMMERCE" TO BE REGULATED BETWEEN
PART I AND PART III, IT WILL NOT DO TO DISREGARD THEM AND FIND IDENTITY
THROUGH VARIATION.  PARTICULARLY IS THIS TRUE WHEN THERE ARE PRACTICAL
DIFFERENCES TO ACCOUNT FOR THE VARIATION.  WE MUST FIRST DEFINE THE
FIELD OF THE REGULATION - WHAT "COMMERCE" BETWEEN TWO POINTS IN THE
SAME STATE BUT GOING THROUGH ANOTHER BECOMES FEDERALLY REGULATED
ALTHOUGH THERETOFORE FREE FROM STATE REGULATION AS WAS RAIL
TRANSPORTATION, AND WHAT "COMMERCE" IS GIVEN OVER TO FEDERAL REGULATION
ALTHOUGH THERETOFORE IT WAS WITHIN THE PROVINCE OF STATE REGULATION AS
WAS WATER TRANSPORTATION IN A SITUATION LIKE THAT UNDER DISCUSSION.  WE
THUS HAVE THE PRACTICAL DIFFERENCES BETWEEN WATER-BORNE AND LAND
TRAFFIC, THE PRACTICAL PROBLEMS IN THE DISTRIBUTION BETWEEN STATE AND
FEDERAL POWER RAISED BY WATER-BORNE TRAFFIC ON BOUNDARY STREAMS, AND
THE ACTUAL DIFFERENCES IN THE DEFINITIONS OF "COMMERCE" IN THE SAME ACT
OF CONGRESS RESPONDING TO THESE DIFFERENCES OF FACT BETWEEN WATER-BORNE
AND LAND TRANSPORTATION.  ALL ENJOIN JUDICIAL REGARD FOR THESE
DIFFERENCES IN THE CONSTRUCTION OF THE STATUTE. 

THE DEFINITION ORIGINALLY PROPOSED IN THE SENATE BILL WAS INTENDED TO
COVER ALL THREE TYPES OF CARRIER - RAIL, WATER AND MOTOR. 
PARTICULARIZATION IN THIS PROPOSED DEFINITION OF TRANSPORTATION WITHIN
ONE STATE BUT THROUGH A SECOND IS CLEAR PROOF THAT THE HANLEY DOCTRINE
APPLICABLE TO RAIL CARRIERS DID NOT CARRY OVER TO WATER AND MOTOR
CARRIAGE.  WHEN CONGRESS FINALLY REJECTED THE ALL-INCLUSIVE DEFINITION
PROPOSED BY THE SENATE AND DECIDED ON SEPARATE DEFINITIONS OF THE
COMMERCE TO BE REGULATED, IT DID SO PRECISELY BECAUSE IT REALIZED THAT
THE LEGAL SITUATION AS TO THE THREE TYPES WAS NOT THE SAME.  THIS
CAREFUL PROCESS OF DISTINCTIVE DEFINITION BY CONGRESS IS NOW IN EFFECT
HELD TO HAVE BEEN A FUTILE LEGISLATIVE ENDEAVOR.  THE ALL-INCLUSIVE
DEFINITION IN THE ORIGINAL SENATE BILL WHICH THE CONGRESS REJECTED THIS
COURT RESTORES. 

A FINAL WORD.  WE MUST NOT BE UNMINDFUL THAT THE COMMITTEES ON
INTERSTATE COMMERCE OUT OF WHICH ISSUED THIS LEGISLATION HAVE A
CONTINUITY OF MEMBERSHIP WHICH MAKES THEM WELL VERSED IN THE PROBLEM
BEFORE US:  NAMELY, HOW MUCH OF THE CONSTITUTIONAL POWER POSSESSED BY
CONGRESS FOR THE CONTROL OF UTILITY SERVICES SHOULD IN FACT BE
COMMITTED TO THE INTERSTATE COMMERCE COMMISSION.  (THE CHAIRMEN OF THE
SENATE AND HOUSE COMMITTEES ON INTERSTATE COMMERCE, WHO HAD CHARGE OF
THE BILLS THAT BECAME THE TRANSPORTATION ACT OF 1940, HAVE BEEN MEMBERS
OF THESE COMMITTEES FOR TWENTY AND TWENTY-THREE YEARS RESPECTIVELY.) 
PARTICULARLY THEREFORE WHEN DEALING WITH LEGISLATION COMING FROM THESE
COMMITTEES AND IN MATTERS INVOLVING DISPLACEMENT OF STATE BY FEDERAL
AUTHORITY, WE OUGHT NOT TO ASSUME THAT CONGRESS DID NOT ATTACH
SIGNIFICANCE TO WHAT IT SAID AND MEANT TO CONVEY THAT WHICH SKILLED
LANGUAGE WITHHELD.  IT IS MORE RESPECTFUL OF CONGRESS TO ATTRIBUTE TO
IT CARE INSTEAD OF CASUALNESS.  IT IS CERTAINLY MORE CONSONANT WITH
JUDICIAL TRADITION AND MORE CONDUCIVE TO LEGISLATIVE RESPONSIBILITY FOR
COURTS TO ACT ON THAT BELIEF. 

I AM THEREFORE COMPELLED TO CONCLUDE THAT THE COMMISSION WAS NOT
GIVEN POWER TO REGULATE TRANSPORTATION BY CORNELL FROM ONE PORT IN NEW
YORK TO ANOTHER PORT IN THE SAME STATE. 

FN1  "IT HAS NEVER BEEN SUPPOSED THAT BECAUSE OF THE ABSENCE OF
FEDERAL ACTION THE PUBLIC INTEREST WAS UNPROTECTED FROM EXTORTION AND
THAT IN ORDER TO SECURE REASONABLE CHARGES IN A MYRIAD OF SUCH
DIFFERENT LOCAL INSTANCES, EXHIBITING AN ENDLESS VARIETY OF
CIRCUMSTANCE, IT WOULD BE NECESSARY FOR CONGRESS TO ACT DIRECTLY OR TO
ESTABLISH FOR THAT PURPOSE A FEDERAL AGENCY  ...  THE PRACTICAL
ADVANTAGES OF HAVING THE MATTER DEALT WITH BY THE STATES ARE OBVIOUS
AND ARE ILLUSTRATED BY THE PRACTICE OF ONE HUNDRED AND TWENTY-FIVE
YEARS.  AND IN VIEW OF THE CHARACTER OF THE SUBJECT, WE FIND NO SOUND
OBJECTION TO ITS CONTINUANCE.  IF CONGRESS AT ANY TIME UNDERTAKES TO
REGULATE SUCH RATES, ITS ACTION WILL OF COURSE CONTROL."  234 U.S. AT
332. 

MR. JUSTICE ROBERTS JOINS IN THIS DISSENT. 
..END :





SMITH V. ALLWRIGHT, 321 U.S. 649 


NO. 51.  ARGUED NOVEMBER 10, 12, 1943.  REARGUED JANUARY 12, 1944.  -
DECIDED APRIL 3, 1944.  - 131 F.2D 593, REVERSED. 


1.  THE RIGHT OF A CITIZEN OF THE UNITED STATES TO VOTE FOR THE
NOMINATION OF CANDIDATES FOR THE UNITED STATES SENATE AND HOUSE OF
REPRESENTATIVES IN A PRIMARY WHICH IS AN INTEGRAL PART OF THE ELECTIVE
PROCESS IS A RIGHT SECURED BY THE FEDERAL CONSTITUTION; AND THIS RIGHT
OF THE CITIZEN MAY NOT BE ABRIDGED BY THE STATE ON ACCOUNT OF HIS RACE
OR COLOR.  P. 661. 

2.  WHETHER THE EXCLUSION OF CITIZENS FROM VOTING ON ACCOUNT OF THEIR
RACE OR COLOR HAS BEEN EFFECTED BY ACTION OF THE STATE - RATHER THAN OF
INDIVIDUALS OR OF A POLITICAL PARTY - IS A QUESTION UPON WHICH THE
DECISION OF THE COURTS OF THE STATE IS NOT BINDING ON THE FEDERAL
COURTS, BUT WHICH THE LATTER MUST DETERMINE FOR THEMSELVES P. 662. 

3.  UPON EXAMINATION OF THE STATUTES OF TEXAS REGULATING PRIMARIES,
HELD THAT THE EXCLUSION OF NEGROES FROM VOTING IN A DEMOCRATIC PRIMARY
TO SELECT NOMINEES FOR A GENERAL ELECTION - ALTHOUGH BY RESOLUTION OF A
STATE CONVENTION OF THE PARTY ITS MEMBERSHIP WAS LIMITED TO WHITE
CITIZENS - WAS STATE ACTION IN VIOLATION OF THE FIFTEENTH AMENDMENT. 
GROVEY V. TOWNSEND, 295 U.S. 45, OVERRULED.  PP. 663, 666. 

WHEN, AS HERE, PRIMARIES BECOME A PART OF THE MACHINERY FOR CHOOSING
OFFICIALS, STATE AND FEDERAL, THE SAME TESTS TO DETERMINE THE CHARACTER
OF DISCRIMINATION OR ABRIDGMENT SHOULD BE APPLIED TO THE PRIMARY AS ARE
APPLIED TO THE GENERAL ELECTION.  P. 664. 

4.  WHILE NOT UNMINDFUL OF THE DESIRABILITY OF ITS ADHERING TO FORMER
DECISIONS OF CONSTITUTIONAL QUESTIONS, THIS COURT IS NOT CONSTRAINED TO
FOLLOW A PREVIOUS DECISION WHICH UPON REEXAMINATION IS BELIEVED
ERRONEOUS, PARTICULARLY ONE WHICH INVOLVES THE APPLICATION OF A
CONSTITUTIONAL PRINCIPLE RATHER THAN AN INTERPRETATION OF THE
CONSTITUTION TO EVOLVE THE PRINCIPLE ITSELF.  P. 665. 

SMITH V. ALLWRIGHT, ELECTION JUDGE, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 319 U.S. 738, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE DEFENDANTS IN A SUIT FOR DAMAGES UNDER 8 U.S.C. SEC. 43. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT OF CERTIORARI BRINGS HERE FOR REVIEW A CLAIM FOR DAMAGES IN
THE SUM OF $5,000 ON THE PART OF PETITIONER, A NEGRO CITIZEN OF THE
48TH PRECINCT OF HARRIS COUNTY, TEXAS, FOR THE REFUSAL OF RESPONDENTS,
ELECTION AND ASSOCIATE ELECTION JUDGES RESPECTIVELY OF THAT PRECINCT,
TO GIVE PETITIONER A BALLOT OR TO PERMIT HIM TO CAST A BALLOT IN THE
PRIMARY ELECTION OF JULY 27, 1940, FOR THE NOMINATION OF DEMOCRATIC
CANDIDATES FOR THE UNITED STATES SENATE AND HOUSE OF REPRESENTATIVES,
AND GOVERNOR AND OTHER STATE OFFICERS.  THE REFUSAL IS ALLEGED TO HAVE
BEEN SOLELY BECAUSE OF THE RACE AND COLOR OF THE PROPOSED VOTER. 

THE ACTIONS OF RESPONDENTS ARE SAID TO VIOLATE SECS. 31 AND 43 OF
TITLE 8  FN1  OF THE UNITED STATES CODE IN THAT PETITIONER WAS DEPRIVED
OF RIGHTS SECURED BY SECS. 2 AND 4 OF ARTICLE I  FN2 AND THE
FOURTEENTH, FIFTEENTH AND SEVENTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.  FN3 THE SUIT WAS FILED IN THE DISTRICT COURT OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF TEXAS, WHICH HAD
JURISDICTION UNDER JUDICIAL CODE SEC. 24, SUBSECTION 14.  FN4 

THE DISTRICT COURT DENIED THE RELIEF SOUGHT AND THE CIRCUIT COURT OF
APPEALS QUITE PROPERLY AFFIRMED ITS ACTION ON THE AUTHORITY OF GROVEY
V. TOWNSEND, 295 U.S. 45.  FN5  WE GRANTED THE PETITION FOR CERTIORARI
TO RESOLVE A CLAIMED INCONSISTENCY BETWEEN THE DECISION IN THE GROVEY
CASE AND THAT OF UNITED STATES V. CLASSIC, 313 U.S. 299.  319 U.S.
738. 

THE STATE OF TEXAS BY ITS CONSTITUTION AND STATUTES PROVIDES THAT
EVERY PERSON, IF CERTAIN OTHER REQUIREMENTS ARE MET WHICH ARE NOT HERE
IN ISSUE, QUALIFIED BY RESIDENCE IN THE DISTRICT OR COUNTY "SHALL BE
DEEMED A QUALIFIED ELECTOR."  CONSTITUTION OF TEXAS, ARTICLE VI, SEC.
2; VERNON'S CIVIL STATUTES (1939 ED.), ARTICLE 2955.  PRIMARY ELECTIONS
FOR UNITED STATES SENATORS, CONGRESSMEN AND STATE OFFICERS ARE PROVIDED
FOR BY CHAPTERS TWELVE AND THIRTEEN OF THE STATUTES.  UNDER THESE
CHAPTERS, THE DEMOCRATIC PARTY WAS REQUIRED TO HOLD THE PRIMARY WHICH
WAS THE OCCASION OF THE ALLEGED WRONG TO PETITIONER.  A SUMMARY OF THE
STATE STATUTES REGULATING PRIMARIES APPEARS IN THE FOOTNOTE.  FN6
THESE NOMINATIONS ARE TO BE MADE BY THE QUALIFIED VOTERS OF THE PARTY. 
ART. 3101. 

THE DEMOCRATIC PARTY OF TEXAS IS HELD BY THE SUPREME COURT OF THAT
STATE TO BE A "VOLUNTARY ASSOCIATION," BELL V. HILL, 123 TEX. 531, 534,
PROTECTED BY SEC. 27 OF THE BILL OF RIGHTS, ART. 1, CONSTITUTION OF
TEXAS, FROM INTERFERENCE BY THE STATE EXCEPT THAT: 

"IN THE INTEREST OF FAIR METHODS AND A FAIR EXPRESSION BY THEIR
MEMBERS OF THEIR PREFERENCES IN THE SELECTION OF THEIR NOMINEES, THE
STATE MAY REGULATE SUCH ELECTIONS BY PROPER LAWS."  P. 545.  THAT COURT
STATED FURTHER: 

"SINCE THE RIGHT TO ORGANIZE AND MAINTAIN A POLITICAL PARTY IS ONE
GUARANTEED BY THE BILL OF RIGHTS OF THIS STATE, IT NECESSARILY FOLLOWS
THAT EVERY PRIVILEGE ESSENTIAL OR REASONABLY APPROPRIATE TO THE
EXERCISE OF THAT RIGHT IS LIKEWISE GUARANTEED,  - INCLUDING, OF COURSE,
THE PRIVILEGE OF DETERMINING THE POLICIES OF THE PARTY AND ITS
MEMBERSHIP.  WITHOUT THE PRIVILEGE OF DETERMINING THE POLICY OF A
POLITICAL ASSOCIATION AND ITS MEMBERSHIP, THE RIGHT TO ORGANIZE SUCH AN
ASSOCIATION WOULD BE A MERE MOCKERY.  WE THINK THESE RIGHTS,  - THAT
IS, THE RIGHT TO DETERMINE THE MEMBERSHIP OF A POLITICAL PARTY AND TO
DETERMINE ITS POLICIES, OF NECESSITY ARE TO BE EXERCISED BY THE STATE
CONVENTION OF SUCH PARTY, AND CANNOT, UNDER ANY CIRCUMSTANCES, BE
CONFERRED UPON A STATE OR GOVERNMENTAL AGENCY."  P. 546.  CF. WAPLES V.
MARRAST, 108 TEX. 5, 184 S.W. 180. 

THE DEMOCRATIC PARTY ON MAY 24, 1932, IN A STATE CONVENTION ADOPTED
THE FOLLOWING RESOLUTION, WHICH HAS NOT SINCE BEEN "AMENDED, ABROGATED,
ANNULLED OR AVOIDED": 

"BE IT RESOLVED THAT ALL WHITE CITIZENS OF THE STATE OF TEXAS WHO ARE
QUALIFIED TO VOTE UNDER THE CONSTITUTION AND LAWS OF THE STATE SHALL BE
ELIGIBLE TO MEMBERSHIP IN THE DEMOCRATIC PARTY AND, AS SUCH, ENTITLED
TO PARTICIPATE IN ITS DELIBERATIONS."  IT WAS BY VIRTUE OF THIS
RESOLUTION THAT THE RESPONDENTS REFUSED TO PERMIT THE PETITIONER TO
VOTE. 

TEXAS IS FREE TO CONDUCT HER ELECTIONS AND LIMIT HER ELECTORATE AS
SHE MAY DEEM WISE, SAVE ONLY AS HER ACTION MAY BE AFFECTED BY THE
PROHIBITIONS OF THE UNITED STATES CONSTITUTION OR IN CONFLICT WITH
POWERS DELEGATED TO AND EXERCISED BY THE NATIONAL GOVERNMENT.  FN7  THE
FOURTEENTH AMENDMENT FORBIDS A STATE FROM MAKING OR ENFORCING ANY LAW
WHICH ABRIDGES THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED
STATES AND THE FIFTEENTH AMENDMENT SPECIFICALLY INTERDICTS ANY DENIAL
OR ABRIDGEMENT BY A STATE OF THE RIGHT OF CITIZENS TO VOTE ON ACCOUNT
OF COLOR.  RESPONDENTS APPEARED IN THE DISTRICT COURT AND THE CIRCUIT
COURT OF APPEALS AND DEFENDED ON THE GROUND THAT THE DEMOCRATIC PARTY
OF TEXAS IS A VOLUNTARY ORGANIZATION WITH MEMBERS BANDED TOGETHER FOR
THE PURPOSE OF SELECTING INDIVIDUALS OF THE GROUP REPRESENTING THE
COMMON POLITICAL BELIEFS AS CANDIDATES IN THE GENERAL ELECTION.  AS
SUCH A VOLUNTARY ORGANIZATION, IT WAS CLAIMED, THE DEMOCRATIC PARTY IS
FREE TO SELECT ITS OWN MEMBERSHIP AND LIMIT TO WHITES PARTICIPATION IN
THE PARTY PRIMARY.  SUCH ACTION, THE ANSWER ASSERTED, DOES NOT VIOLATE
THE FOURTEENTH, FIFTEENTH OR SEVENTEENTH AMENDMENT AS OFFICERS OF
GOVERNMENT CANNOT BE CHOSEN AT PRIMARIES AND THE AMENDMENTS ARE
APPLICABLE ONLY TO GENERAL ELECTIONS WHERE GOVERNMENTAL OFFICERS ARE
ACTUALLY ELECTED.  PRIMARIES, IT IS SAID, ARE POLITICAL PARTY AFFAIRS,
HANDLED BY PARTY, NOT GOVERNMENTAL, OFFICERS.  NO APPEARANCE FOR
RESPONDENTS IS MADE IN THIS COURT.  ARGUMENTS PRESENTED HERE BY THE
ATTORNEY GENERAL OF TEXAS AND THE CHAIRMAN OF THE STATE DEMOCRATIC
EXECUTIVE COMMITTEE OF TEXAS, AS AMICI CURIAE, URGED SUBSTANTIALLY THE
SAME GROUNDS AS THOSE ADVANCED BY THE RESPONDENTS. 

THE RIGHT OF A NEGRO TO VOTE IN THE TEXAS PRIMARY HAS BEEN CONSIDERED
HERETOFORE BY THIS COURT.  THE FIRST CASE WAS NIXON V. HERNDON, 273
U.S. 536.  AT THAT TIME, 1924, THE TEXAS STATUTE, ART. 3093A,
AFTERWARDS NUMBERED ART. 3107(REV.  STAT.  1925) DECLARED "IN NO EVENT
SHALL A NEGRO BE ELIGIBLE TO PARTICIPATE IN A DEMOCRATIC PARTY PRIMARY
ELECTION IN THE STATE OF TEXAS."  NIXON WAS REFUSED THE RIGHT TO VOTE
IN A DEMOCRATIC PRIMARY AND BROUGHT A SUIT FOR DAMAGES AGAINST THE
ELECTION OFFICERS UNDER R.S. SECS. 1979 AND 2004, THE PRESENT SECS. 43
AND 31 OF TITLE 8, U.S.C., RESPECTIVELY.  IT WAS URGED TO THIS COURT
THAT THE DENIAL OF THE FRANCHISE TO NIXON VIOLATED HIS CONSTITUTIONAL
RIGHTS UNDER THE FOURTEENTH AND FIFTEENTH AMENDMENTS.  WITHOUT
CONSIDERATION OF THE FIFTEENTH, THIS COURT HELD THAT THE ACTION OF
TEXAS IN DENYING THE BALLOT TO NEGROES BY STATUTE WAS IN VIOLATION OF
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND REVERSED
THE DISMISSAL OF THE SUIT. 

THE LEGISLATURE OF TEXAS REENACTED THE ARTICLE BUT GAVE THE STATE
EXECUTIVE COMMITTEE OF A PARTY THE POWER TO PRESCRIBE THE
QUALIFICATIONS OF ITS MEMBERS FOR VOTING OR OTHER PARTICIPATION.  THIS
ARTICLE REMAINS IN THE STATUTES.  THE STATE EXECUTIVE COMMITTEE OF THE
DEMOCRATIC PARTY ADOPTED A RESOLUTION THAT WHITE DEMOCRATS AND NONE
OTHER MIGHT PARTICIPATE IN THE PRIMARIES OF THAT PARTY.  NIXON WAS
REFUSED AGAIN THE PRIVILEGE OF VOTING IN A PRIMARY AND AGAIN BROUGHT
SUIT FOR DAMAGES BY VIRTUE OF SEC. 31, TITLE 8, U.S.C.  THIS COURT
AGAIN REVERSED THE DISMISSAL OF THE SUIT FOR THE REASON THAT THE
COMMITTEE ACTION WAS DEEMED TO BE STATE ACTION AND INVALID AS
DISCRIMINATORY UNDER THE FOURTEENTH AMENDMENT.  THE TEST WAS SAID TO BE
WHETHER THE COMMITTEE OPERATED AS REPRESENTATIVE OF THE STATE IN THE
DISCHARGE OF THE STATE'S AUTHORITY.  NIXON V. CONDON, 286 U.S. 73.  THE
QUESTION OF THE INHERENT POWER OF A POLITICAL PARTY IN TEXAS "WITHOUT
RESTRAINT BY ANY LAW TO DETERMINE ITS OWN MEMBERSHIP" WAS LEFT OPEN. 
ID., 84-85. 

IN GROVEY V. TOWNSEND, 295 U.S. 45, THIS COURT HAD BEFORE IT ANOTHER
SUIT FOR DAMAGES FOR THE REFUSAL IN A PRIMARY OF A COUNTY CLERK, A
TEXAS OFFICER WITH ONLY PUBLIC FUNCTIONS TO PERFORM, TO FURNISH
PETITIONER, A NEGRO, AN ABSENTEE BALLOT.  THE REFUSAL WAS SOLELY ON THE
GROUND OF RACE.  THIS CASE DIFFERED FROM NIXON V. CONDON, SUPRA, IN
THAT A STATE CONVENTION OF THE DEMOCRATIC PARTY HAD PASSED THE
RESOLUTION OF MAY 24, 1932, HEREINBEFORE QUOTED.  IT WAS DECIDED THAT
THE DETERMINATION BY THE STATE CONVENTION OF THE MEMBERSHIP OF THE
DEMOCRATIC PARTY MADE A SIGNIFICANT CHANGE FROM A DETERMINATION BY THE
EXECUTIVE COMMITTEE.  THE FORMER WAS PARTY ACTION, VOLUNTARY IN
CHARACTER.  THE LATTER, AS HAD BEEN HELD IN THE CONDON CASE, WAS ACTION
BY AUTHORITY OF THE STATE.  THE MANAGERS OF THE PRIMARY ELECTION WERE
THEREFORE DECLARED NOT TO BE STATE OFFICIALS IN SUCH SENSE THAT THEIR
ACTION WAS STATE ACTION.  A STATE CONVENTION OF A PARTY WAS SAID NOT TO
BE AN ORGAN OF THE STATE.  THIS COURT WENT ON TO ANNOUNCE THAT TO DENY
A VOTE IN A PRIMARY WAS A MERE REFUSAL OF PARTY MEMBERSHIP WITH WHICH
"THE STATE NEED HAVE NO CONCERN," LOC.  CIT.  AT 55, WHILE FOR A STATE
TO DENY A VOTE IN A GENERAL ELECTION ON THE GROUND OF RACE OR COLOR
VIOLATED THE CONSTITUTION.  CONSEQUENTLY, THERE WAS FOUND NO GROUND FOR
HOLDING THAT THE COUNTY CLERK'S REFUSAL OF A BALLOT BECAUSE OF RACIAL
INELIGIBILITY FOR PARTY MEMBERSHIP DENIED THE PETITIONER ANY RIGHT
UNDER THE FOURTEENTH OR FIFTEENTH AMENDMENT. 

SINCE GROVEY V. TOWNSEND AND PRIOR TO THE PRESENT SUIT, NO CASE FROM
TEXAS INVOLVING PRIMARY ELECTIONS HAS BEEN BEFORE THIS COURT.  WE DID
DECIDE, HOWEVER, UNITED STATES V. CLASSIC, 313 U.S. 299.  WE THERE HELD
THAT SEC. 4 OF ARTICLE I OF THE CONSTITUTION AUTHORIZED CONGRESS TO
REGULATE PRIMARY AS WELL AS GENERAL ELECTIONS, 313 U.S. AT 316, 317,
"WHERE THE PRIMARY IS BY LAW MADE AN INTEGRAL PART OF THE ELECTION
MACHINERY."  313 U.S. AT 318.  CONSEQUENTLY, IN THE CLASSIC CASE, WE
UPHELD THE APPLICABILITY TO FRAUDS IN A LOUISIANA PRIMARY OF SECS. 19
AND 20 OF THE CRIMINAL CODE.  THEREBY CORRUPT ACTS OF ELECTION OFFICERS
WERE SUBJECTED TO CONGRESSIONAL SANCTIONS BECAUSE THAT BODY HAD POWER
TO PROTECT RIGHTS OF FEDERAL SUFFRAGE SECURED BY THE CONSTITUTION IN
PRIMARY AS IN GENERAL ELECTIONS.  313 U.S. AT 323.  THIS DECISION
DEPENDED, TOO, ON THE DETERMINATION THAT UNDER THE LOUISIANA STATUTES
THE PRIMARY WAS A PART OF THE PROCEDURE FOR CHOICE OF FEDERAL
OFFICIALS.  BY THIS DECISION THE DOUBT AS TO WHETHER OR NOT SUCH
PRIMARIES WERE A PART OF "ELECTIONS" SUBJECT TO FEDERAL CONTROL, WHICH
HAD REMAINED UNANSWERED SINCE NEWBERRY V. UNITED STATES, 256 U.S. 232,
WAS ERASED.  THE NIXON CASES WERE DECIDED UNDER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT WITHOUT A DETERMINATION OF THE
STATUS OF THE PRIMARY AS A PART OF THE ELECTORAL PROCESS.  THE
EXCLUSION OF NEGROES FROM THE PRIMARIES BY ACTION OF THE STATE WAS HELD
INVALID UNDER THAT AMENDMENT.  THE FUSING BY THE CLASSIC CASE OF THE
PRIMARY AND GENERAL ELECTIONS INTO A SINGLE INSTRUMENTALITY FOR CHOICE
OF OFFICERS HAS A DEFINITE BEARING ON THE PERMISSIBILITY UNDER THE
CONSTITUTION OF EXCLUDING NEGROES FROM PRIMARIES.  THIS IS NOT TO SAY
THAT THE CLASSIC CASE CUTS DIRECTLY INTO THE RATIONALE OF GROVEY V.
TOWNSEND.  THIS LATTER CASE WAS NOT MENTIONED IN THE OPINION.  CLASSIC
BEARS UPON GROVEY V. TOWNSEND NOT BECAUSE EXCLUSION OF NEGROES FROM
PRIMARIES IS ANY MORE OR LESS STATE ACTION BY REASON OF THE UNITARY
CHARACTER OF THE ELECTORAL PROCESS BUT BECAUSE THE RECOGNITION OF THE
PLACE OF THE PRIMARY IN THE ELECTORAL SCHEME MAKES CLEAR THAT STATE
DELEGATION TO A PARTY OF THE POWER TO FIX THE QUALIFICATIONS OF PRIMARY
ELECTIONS IS DELEGATION OF A STATE FUNCTION THAT MAY MAKE THE PARTY'S
ACTION THE ACTION OF THE STATE.  WHEN GROVEY V. TOWNSEND WAS WRITTEN,
THE COURT LOOKED UPON THE DENIAL OF A VOTE IN A PRIMARY AS A MERE
REFUSAL BY A PARTY OF PARTY MEMBERSHIP.  295 U.S. AT 55.  AS THE
LOUISIANA STATUTES FOR HOLDING PRIMARIES ARE SIMILAR TO THOSE OF TEXAS,
OUR RULING IN CLASSIC AS TO THE UNITARY CHARACTER OF THE ELECTORAL
PROCESS CALLS FOR A REEXAMINATION AS TO WHETHER OR NOT THE EXCLUSION OF
NEGROES FROM A TEXAS PARTY PRIMARY WAS STATE ACTION. 

THE STATUTES OF TEXAS RELATING TO PRIMARIES AND THE RESOLUTION OF THE
DEMOCRATIC PARTY OF TEXAS EXTENDING THE PRIVILEGES OF MEMBERSHIP TO
WHITE CITIZENS ONLY ARE THE SAME IN SUBSTANCE AND EFFECT TODAY AS THEY
WERE WHEN GROVEY V. TOWNSEND WAS DECIDED BY A UNANIMOUS COURT.  THE
QUESTION AS TO WHETHER THE EXCLUSIONARY ACTION OF THE PARTY WAS THE
ACTION OF THE STATE PERSISTS AS THE DETERMINATIVE FACTOR.  IN AGAIN
ENTERING UPON CONSIDERATION OF THE INFERENCE TO BE DRAWN AS TO STATE
ACTION FROM A SUBSTANTIALLY SIMILAR FACTUAL SITUATION, IT SHOULD BE
NOTED THAT GROVEY V. TOWNSEND UPHELD EXCLUSION OF NEGROES FROM
PRIMARIES THROUGH THE DENIAL OF PARTY MEMBERSHIP BY A PARTY
CONVENTION.  A FEW YEARS BEFORE, THIS COURT REFUSED APPROVAL OF
EXCLUSION BY THE STATE EXECUTIVE COMMITTEE OF THE PARTY.  A DIFFERENT
RESULT WAS REACHED ON THE THEORY THAT THE COMMITTEE ACTION WAS STATE
AUTHORIZED AND THE CONVENTION ACTION WAS UNFETTERED BY STATUTORY
CONTROL.  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.  OTHER
PRECEDENTS OF THIS COURT FORBID THE ABRIDGEMENT OF THE RIGHT TO VOTE. 
UNITED STATES V. REESE, 92 U.S. 214, 217; NEAL V. DELAWARE, 103 U.S.
370, 388; GUINN V. UNITED STATES, 238 U.S. 347, 361; MYERS V. ANDERSON,
238 U.S. 368, 379; LANE V. WILSON, 307 U.S. 268.    IT MAY NOW BE TAKEN
AS A POSTULATE THAT THE RIGHT TO VOTE IN SUCH A PRIMARY FOR THE
NOMINATION OF CANDIDATES WITHOUT DISCRIMINATION BY THE STATE, LIKE THE
RIGHT TO VOTE IN A GENERAL ELECTION, IS A RIGHT SECURED BY THE
CONSTITUTION.  UNITED STATES V. CLASSIC, 313 U.S. AT 314; MYERS V.
ANDERSON, 238 U.S. 368; EX PARTE YARBROUGH, 110 U.S. 651, 663 ET SEQ.
BY THE TERMS OF THE FIFTEENTH AMENDMENT THAT RIGHT MAY NOT BE ABRIDGED
BY ANY STATE ON ACCOUNT OF RACE.  UNDER OUR CONSTITUTION THE GREAT
PRIVILEGE OF THE BALLOT MAY NOT BE DENIED A MAN BY THE STATE BECAUSE OF
HIS COLOR. 

WE ARE THUS BROUGHT TO AN EXAMINATION OF THE QUALIFICATIONS FOR
DEMOCRATIC PRIMARY ELECTORS IN TEXAS, TO DETERMINE WHETHER STATE ACTION
OR PRIVATE ACTION HAS EXCLUDED NEGROES FROM PARTICIPATION.  DESPITE
TEXAS' DECISION THAT THE EXCLUSION IS PRODUCED BY PRIVATE OR PARTY
ACTION, BELL V. HILL, SUPRA, FEDERAL COURTS MUST FOR THEMSELVES
APPRAISE THE FACTS LEADING TO THAT CONCLUSION.  IT IS ONLY BY THE
PERFORMANCE OF THIS OBLIGATION THAT A FINAL AND UNIFORM INTERPRETATION
CAN BE GIVEN TO THE CONSTITUTION, THE "SUPREME LAW OF THE LAND."  NIXON
V. CONDON, 286 U.S. 73, 88; STANDARD OIL CO. V. JOHNSON, 316 U.S. 481,
483; BRIDGES V. CALIFORNIA, 314 U.S. 252; LISENBA V. CALIFORNIA, 314
U.S. 219, 238; UNION PACIFIC R. CO. V. UNITED STATES, 313 U.S. 450,
467; DRIVERS UNION V. MEADOWMOOR CO., 312 U.S. 287, 294; CHAMBERS V.
FLORIDA, 309 U.S. 227, 228.  TEXAS REQUIRES ELECTORS IN A PRIMARY TO
PAY A POLL TAX.  EVERY PERSON WHO DOES SO PAY AND WHO HAS THE
QUALIFICATIONS OF AGE AND RESIDENCE IS AN ACCEPTABLE VOTER FOR THE
PRIMARY.  ART. 2955.  AS APPEARS ABOVE IN THE SUMMARY OF THE STATUTORY
PROVISIONS SET OUT IN NOTE 6, TEXAS REQUIRES BY THE LAW THE ELECTION OF
THE COUNTY OFFICERS OF A PARTY.  THESE COMPOSE THE COUNTY EXECUTIVE
COMMITTEE.  THE COUNTY CHAIRMEN SO SELECTED ARE MEMBERS OF THE DISTRICT
EXECUTIVE COMMITTEE AND CHOOSE THE CHAIRMAN FOR THE DISTRICT.  PRECINCT
PRIMARY ELECTION OFFICERS ARE NAMED BY THE COUNTY EXECUTIVE COMMITTEE. 
STATUTES PROVIDE FOR THE ELECTION BY THE VOTERS OF PRECINCT DELEGATES
TO THE COUNTY CONVENTION OF A PARTY AND THE SELECTION OF DELEGATES TO
THE DISTRICT AND STATE CONVENTIONS BY THE COUNTY CONVENTION.  THE STATE
CONVENTION SELECTS THE STATE EXECUTIVE COMMITTEE.  NO CONVENTION MAY
PLACE IN PLATFORM OR RESOLUTION ANY DEMAND FOR SPECIFIC LEGISLATION
WITHOUT ENDORSEMENT OF SUCH LEGISLATION BY THE VOTERS IN A PRIMARY. 
TEXAS THUS DIRECTS THE SELECTION OF ALL PARTY OFFICERS. 

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.  NO OTHER NAME
MAY BE PRINTED ON THE BALLOT WHICH HAS NOT BEEN PLACED IN NOMINATION BY
QUALIFIED VOTERS WHO MUST TAKE OATH THAT THEY DID NOT PARTICIPATE IN A
PRIMARY FOR THE SELECTION OF A CANDIDATE FOR THE OFFICE FOR WHICH THE
NOMINATION IS MADE. 

THE STATE COURTS ARE GIVEN EXCLUSIVE ORIGINAL JURISDICTION OF
CONTESTED ELECTIONS AND OF MANDAMUS PROCEEDINGS TO COMPEL PARTY
OFFICERS TO PERFORM THEIR STATUTORY DUTIES. 

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.  THE PLAN OF THE TEXAS PRIMARY FOLLOWS SUBSTANTIALLY THAT OF
LOUISIANA, WITH THE EXCEPTION THAT IN LOUISIANA THE STATE PAYS THE COST
OF THE PRIMARY WHILE TEXAS ASSESSES THE COST AGAINST CANDIDATES.  IN
NUMEROUS INSTANCES, THE TEXAS STATUTES FIX OR LIMIT THE FEES TO BE
CHARGED.  WHETHER PAID DIRECTLY BY THE STATE OR THROUGH STATE
REQUIREMENTS, IT IS STATE ACTION WHICH COMPELS.  WHEN PRIMARIES BECOME
A PART OF THE MACHINERY FOR CHOOSING OFFICIALS, STATE AND NATIONAL, AS
THEY HAVE HERE, THE SAME TESTS TO DETERMINE THE CHARACTER OF
DISCRIMINATION OR ABRIDGEMENT SHOULD BE APPLIED TO THE PRIMARY AS ARE
APPLIED TO THE GENERAL ELECTION.  IF THE STATE REQUIRES A CERTAIN
ELECTORAL PROCEDURE, PRESCRIBES A GENERAL ELECTION BALLOT MADE UP OF
PARTY NOMINEES SO CHOSEN AND LIMITS THE CHOICE OF THE ELECTORATE IN
GENERAL ELECTIONS FOR STATE OFFICES, PRACTICALLY SPEAKING, TO THOSE
WHOSE NAMES APPEAR ON SUCH A BALLOT, IT ENDORSES, ADOPTS AND ENFORCES
THE DISCRIMINATION AGAINST NEGROES, PRACTICED BY A PARTY ENTRUSTED BY
TEXAS LAW WITH THE DETERMINATION OF THE QUALIFICATIONS OF PARTICIPANTS
IN THE PRIMARY.  THIS IS STATE ACTION WITHIN THE MEANING OF THE
FIFTEENTH AMENDMENT.  GUINN V. UNITED STATES, 238 U.S. 347, 362. 

THE UNITED STATES IS A CONSTITUTIONAL DEMOCRACY.  ITS ORGANIC LAW
GRANTS TO ALL CITIZENS A RIGHT TO PARTICIPATE IN THE CHOICE OF ELECTED
OFFICIALS WITHOUT RESTRICTION BY ANY STATE BECAUSE OF RACE.  THIS GRANT
TO THE PEOPLE OF THE OPPORTUNITY FOR CHOICE 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.  CONSTITUTIONAL RIGHTS WOULD BE OF LITTLE VALUE IF THEY COULD
BE THUS INDIRECTLY DENIED.  LANE V. WILSON, 307 U.S. 268, 275. 

THE PRIVILEGE OF MEMBERSHIP IN A PARTY MAY BE, AS THIS COURT SAID IN
GROVEY V. TOWNSEND, 295 U.S. 45, 55, NO CONCERN OF A STATE.  BUT WHEN,
AS HERE, THAT PRIVILEGE IS ALSO THE ESSENTIAL QUALIFICATION FOR VOTING
IN A PRIMARY TO SELECT NOMINEES FOR A GENERAL ELECTION, THE STATE MAKES
THE ACTION OF THE PARTY THE ACTION OF THE STATE.  IN REACHING THIS
CONCLUSION WE ARE NOT UNMINDFUL OF THE DESIRABILITY OF CONTINUITY OF
DECISION IN CONSTITUTIONAL QUESTIONS.  FN8  HOWEVER, WHEN CONVINCED OF
FORMER ERROR, THIS COURT HAS NEVER FELT CONSTRAINED TO FOLLOW
PRECEDENT.  IN CONSTITUTIONAL QUESTIONS, WHERE CORRECTION DEPENDS UPON
AMENDMENT AND NOT UPON LEGISLATIVE ACTION THIS COURT THROUGHOUT ITS
HISTORY HAS FREELY EXERCISED ITS POWER TO REEXAMINE THE BASIS OF ITS
CONSTITUTIONAL DECISIONS.  THIS HAS LONG BEEN ACCEPTED PRACTICE,  FN9
AND THIS PRACTICE HAS CONTINUED TO THIS DAY.  FN10  THIS IS
PARTICULARLY TRUE WHEN THE DECISION BELIEVED ERRONEOUS IS THE
APPLICATION OF A CONSTITUTIONAL PRINCIPLE RATHER THAN AN INTERPRETATION
OF THE CONSTITUTION TO EXTRACT THE PRINCIPLE ITSELF.  FN11  HERE WE ARE
APPLYING, CONTRARY TO THE RECENT DECISION IN GROVEY V. TOWNSEND, THE
WELL-ESTABLISHED PRINCIPLE OF THE FIFTEENTH AMENDMENT, FORBIDDING THE
ABRIDGEMENT BY A STATE OF A CITIZEN'S RIGHT TO VOTE.  GROVEY V.
TOWNSEND IS OVERRULED.  JUDGMENT REVERSED. 

FN1  8 U.S.C. SEC. 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." 

SEC. 43:  "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

FN2  CONSTITUTION, ART. I: 

"SECTION 2.  THE HOUSE OF REPRESENTATIVES SHALL BE COMPOSED OF
MEMBERS CHOSEN EVERY SECOND YEAR BY THE PEOPLE OF THE SEVERAL STATES,
AND THE ELECTORS IN EACH STATE SHALL HAVE THE QUALIFICATIONS REQUISITE
FOR ELECTORS OF THE MOST NUMEROUS BRANCH OF THE STATE LEGISLATURE." 

"SECTION 4.  THE TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR
SENATORS AND REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE BY THE
LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR
ALTER SUCH REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING SENATORS." 

FN3  CONSTITUTION: 

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." 

ARTICLE XVII.  "THE SENATE OF THE UNITED STATES SHALL BE COMPOSED OF
TWO SENATORS FROM EACH STATE, ELECTED BY THE PEOPLE THEREOF, FOR SIX
YEARS; AND EACH SENATOR SHALL HAVE ONE VOTE.  THE ELECTORS IN EACH
STATE SHALL HAVE THE QUALIFICATIONS REQUISITE FOR ELECTORS OF THE MOST
NUMEROUS BRANCH OF THE STATE LEGISLATURES." 

FN4  A DECLARATORY JUDGMENT ALSO WAS SOUGHT AS TO THE
CONSTITUTIONALITY OF THE DENIAL OF THE BALLOT.  THE JUDGMENT ENTERED
DECLARED THE DENIAL WAS CONSTITUTIONAL.  THIS PHASE OF THE CASE IS NOT
CONSIDERED FURTHER AS THE DECISION ON THE MERITS DETERMINES THE
LEGALITY OF THE ACTION OF THE RESPONDENTS. 

FN5  SMITH V. ALLWRIGHT, 131 F.2D 593. 

FN6  THE EXTENT TO WHICH THE STATE CONTROLS THE PRIMARY ELECTION
MACHINERY APPEARS FROM THE TEXAS STATUTES, AS FOLLOWS:  ART. 3118,
VERNON'S TEXAS STATUTES, PROVIDES FOR THE ELECTION OF A COUNTY CHAIRMAN
FOR EACH PARTY HOLDING A PRIMARY BY THE "QUALIFIED VOTERS OF THE WHOLE
COUNTY," AND OF ONE MEMBER OF THE PARTY'S COUNTY EXECUTIVE COMMITTEE BY
THE "QUALIFIED VOTERS OF THEIR RESPECTIVE ELECTION PRECINCTS."  THESE
OFFICERS HAVE DIRECT CHARGE OF THE PRIMARY.  THERE IS IN ADDITION
STATUTORY PROVISION FOR A PARTY CONVENTION:  THE VOTERS IN EACH
PRECINCT CHOOSE DELEGATES TO A COUNTY CONVENTION, AND THE LATTER
CHOOSES DELEGATES TO A STATE CONVENTION.  ART. 3134.  THE STATE
CONVENTION HAS AUTHORITY TO CHOOSE THE STATE EXECUTIVE COMMITTEE AND
ITS CHAIRMAN.  ART. 3139, 1939 SUPP.  CANDIDATES FOR OFFICES TO BE
FILLED BY ELECTION ARE REQUIRED TO BE NOMINATED AT A PRIMARY ELECTION
IF THE NOMINATING PARTY CAST OVER 100,000 VOTES AT THE PRECEDING
GENERAL ELECTION.  ART. 3101.  THE DATE OF THE PRIMARY IS FIXED AT THE
FOURTH SATURDAY IN JULY; A MAJORITY IS REQUIRED FOR NOMINATION, AND IF
NO CANDIDATE RECEIVES A MAJORITY, A RUN-OFF PRIMARY BETWEEN THE TWO
HIGHEST STANDING CANDIDATES IS HELD ON THE FOURTH SATURDAY IN AUGUST. 
ART. 3102.  POLLING PLACES MAY NOT BE WITHIN A HUNDRED YARDS OF THOSE
USED BY THE OPPOSITE PARTY.  ART. 3103.  EACH PRECINCT PRIMARY IS TO BE
CONDUCTED BY A PRESIDING JUDGE AND THE ASSISTANTS HE NAMES.  THESE
OFFICIALS ARE SELECTED BY THE COUNTY EXECUTIVE COMMITTEE.  ART. 3104. 
ABSENTEE VOTING MACHINERY PROVIDED BY THE STATE FOR GENERAL ELECTIONS
IS ALSO USED IN PRIMARIES.  ART. 2956.  THE PRESIDING JUDGES ARE GIVEN
LEGAL AUTHORITY SIMILAR TO THAT OF JUDGES AT GENERAL ELECTIONS. 
COMPARE ART. 3105 WITH ART. 3002.  THE COUNTY EXECUTIVE COMMITTEE MAY
DECIDE WHETHER COUNTY OFFICERS ARE TO BE NOMINATED BY MAJORITY OR
PLURALITY VOTE.  ART. 3106.  THE STATE EXECUTIVE COMMITTEE IS GIVEN
POWER TO FIX QUALIFICATIONS OF PARTY MEMBERSHIP, ART. 3107; ART. 2955,
1942 SUPP., REQUIRES PAYMENT OF A POLL TAX BY VOTERS IN PRIMARY
ELECTIONS, AND ART. 3093(3) DEALS WITH POLITICAL QUALIFICATIONS OF
CANDIDATES FOR NOMINATION FOR UNITED STATES SENATOR.  BUT CF. BELL V.
HILL, 123 TEX. 531, 74 S.W.2D 113.  ART. 3108 EMPOWERS THE COUNTY
COMMITTEE TO PREPARE A BUDGET COVERING THE COST OF THE PRIMARY AND TO
REQUIRE EACH CANDIDATE TO PAY A FAIR SHARE.  THE FORM OF THE BALLOT IS
PRESCRIBED BY ART. 3109.  ART. 3101 PROVIDES THAT THE NOMINATIONS BE
MADE BY THE QUALIFIED VOTERS OF THE PARTY.  CF. ART. 3091.  ART. 3110
PRESCRIBES A TEST FOR VOTERS WHO TAKE PART IN THE PRIMARY.  IT READS AS
FOLLOWS: 

"NO OFFICIAL BALLOT FOR PRIMARY ELECTION SHALL HAVE ON IT ANY SYMBOL
OR DEVICE OR ANY PRINTED MATTER, EXCEPT A UNIFORM PRIMARY TEST, READING
AS FOLLOWS:  'I AM A  ...  (INSERTING NAME OF POLITICAL PARTY OR
ORGANIZATION OF WHICH THE VOTER IS A MEMBER) AND PLEDGE MYSELF TO
SUPPORT THE NOMINEE OF THIS PRIMARY;' AND ANY BALLOT WHICH SHALL NOT
CONTAIN SUCH PRINTED TEST ABOVE THE NAMES OF THE CANDIDATES THEREON,
SHALL BE VOID AND SHALL NOT BE COUNTED."  THIS APPEARS, HOWEVER, TO BE
A MORALLY RATHER THAN A LEGALLY ENFORCIBLE PLEDGE.  SEE LOVE V. WILCOX,
119 TEX. 256, 28 S.W.2D 515.    ARTS. 3092 AND 3111 TO 3114 DEAL WITH
THE MECHANICS OF PROCURING A PLACE ON THE PRIMARY BALLOT FOR FEDERAL,
STATE, DISTRICT, OR COUNTY OFFICE.  THE REQUEST FOR A PLACE ON THE
BALLOT MAY BE MADE TO THE STATE, DISTRICT OR COUNTY PARTY CHAIRMAN,
EITHER BY THE PERSON DESIRING NOMINATION OR BY TWENTY-FIVE QUALIFIED
VOTERS.  THE BALLOT IS PREPARED BY A SUBCOMMITTEE OF THE COUNTY
EXECUTIVE COMMITTEE.  ART. 3115.  A CANDIDATE MUST PAY HIS SHARE OF THE
EXPENSES OF THE ELECTION BEFORE HIS NAME IS PLACED ON THE BALLOT.  ART.
3116.  ART. 3116, HOWEVER, LIMITS THE SUM THAT MAY BE CHARGED
CANDIDATES FOR CERTAIN POSTS, SUCH AS THE OFFICES OF DISTRICT JUDGE,
JUDGE OF THE COURT OF CIVIL APPEALS, AND SENATOR AND REPRESENTATIVE IN
THE STATE AND FEDERAL LEGISLATURES, AND FOR SOME COUNTIES FEES ARE
FIXED BY ARTS. 3116 A-D, 1939 SUPP., AND 3116 E-F, 1942 SUPP.  SUPPLIES
FOR THE ELECTION ARE DISTRIBUTED BY THE COUNTY COMMITTEE, ART. 3119,
AND ART. 3120 AUTHORIZES THE USE OF VOTING BOOTHS, BALLOT BOXES AND
GUARD RAILS, PREPARED FOR THE GENERAL ELECTION, "FOR THE ORGANIZED
POLITICAL PARTY NOMINATING BY PRIMARY ELECTION THAT CAST OVER ONE
HUNDRED THOUSAND VOTES AT THE PRECEDING GENERAL ELECTION."  THE COUNTY
TAX COLLECTOR MUST SUPPLY LISTS OF QUALIFIED VOTERS BY PRECINCTS; AND
THESE LISTS MUST BE USED AT THE PRIMARY.  ART. 3121.  THE SAME
PRECAUTIONS AS TO SECRECY AND THE CARE OF THE BALLOTS MUST BE OBSERVED
IN PRIMARY AS IN GENERAL ELECTIONS.  ART. 3122.  ARTS. 3123-25 COVER
THE MAKING OF RETURNS TO THE COUNTY AND STATE CHAIRMEN AND CANVASS OF
THE RESULT BY THE COUNTY COMMITTEE.  BY ART. 3127, A STATEWIDE CANVASS
IS REQUIRED OF THE STATE EXECUTIVE COMMITTEE FOR STATE AND DISTRICT
OFFICERS AND A SIMILAR CANVASS BY THE STATE CONVENTION, WITH RESPECT TO
STATE OFFICERS, IS PROVIDED BY ART. 3138.  THE NOMINATIONS FOR DISTRICT
OFFICES ARE CERTIFIED TO THE COUNTY CLERKS, AND FOR STATE OFFICERS TO
THE SECRETARY OF STATE.  ARTS. 3127, 3137, 3138.  BALLOT BOXES AND
BALLOTS ARE TO BE RETURNED TO THE COUNTY CLERK, ART. 3128, 1942 SUPP.,
AND UPON CERTIFICATION BY THE COUNTY COMMITTEE, THE COUNTY CLERK MUST
PUBLISH THE RESULT.  ART. 3129, 1942 SUPP.  IF NO OBJECTION IS MADE
WITHIN FIVE DAYS, THE NAME OF THE NOMINEE IS THEN TO BE PLACED ON THE
OFFICIAL BALLOT BY THE COUNTY CLERK.  ART. 3131, 1942 SUPP.  CF. ARTS.
2978, 2984, 2992, 2996.  ARTS. 3146-53, 1942 SUPP., PROVIDE FOR
ELECTION CONTESTS.  THE STATE DISTRICT COURTS HAVE EXCLUSIVE ORIGINAL
JURISDICTION, AND THE COURT OF CIVIL APPEALS HAS APPELLATE
JURISDICTION.  THE STATE COURTS ARE ALSO AUTHORIZED TO ISSUE WRITS OF
MANDAMUS TO REQUIRE EXECUTIVE COMMITTEES, COMMITTEEMEN, AND PRIMARY
OFFICERS TO DISCHARGE THE DUTIES IMPOSED BY THE STATUTE.  ART. 3142;
CF. ART. 3124. 

THE OFFICIAL BALLOT IS REQUIRED TO CONTAIN PARALLEL COLUMNS FOR THE
NOMINEES OF THE RESPECTIVE PARTIES, A COLUMN FOR INDEPENDENT
CANDIDATES, AND A BLANK COLUMN FOR SUCH NAMES AS THE VOTERS CARE TO
WRITE IN.  ARTS. 2978, 2980.  THE NAMES OF NOMINEES OF A PARTY CASTING
MORE THAN 100,000 VOTES AT THE LAST PRECEDING GENERAL ELECTION MAY NOT
BE PRINTED ON THE BALLOT UNLESS THEY WERE CHOSEN AT A PRIMARY
ELECTION.  ART. 2978.  CANDIDATES WHO ARE NOT PARTY NOMINEES MAY HAVE
THEIR NAMES PRINTED ON THE BALLOT BY COMPLYING WITH ARTS. 3159-62. 
THESE SECTIONS REQUIRE APPLICATIONS TO BE FILED WITH THE SECRETARY OF
STATE, COUNTY JUDGE, OR MAYOR, FOR STATE AND DISTRICT, COUNTY, AND CITY
OFFICES, RESPECTIVELY.  THE APPLICATIONS MUST BE SIGNED BY QUALIFIED
VOTERS TO THE NUMBER OF FROM ONE TO FIVE PER CENT OF THE BALLOTS CAST
AT THE PRECEDING ELECTION, DEPENDING ON THE OFFICE.  EACH SIGNER MUST
TAKE AN OATH TO THE EFFECT THAT HE DID NOT PARTICIPATE IN A PRIMARY AT
WHICH A CANDIDATE FOR THE OFFICE IN QUESTION WAS NOMINATED.  WHILE THIS
REQUIREMENT HAS BEEN HELD TO PRECLUDE ONE WHO HAS VOTED IN THE PARTY
PRIMARY FROM APPEARING ON THE BALLOT AS AN INDEPENDENT, WESTERMAN V.
MIMS, 111 TEX. 29, 227 S.W. 178; SEE CUNNINGHAM V. MCDERMETT, 277 S.W.
218(CIV.  APP.), ONE WHO LOST AT THE PRIMARY MAY STILL BE ELECTED AT
THE GENERAL ELECTION BY A WRITE-IN VOTE.  CUNNINGHAM V. MCDERMETT,
SUPRA. 

THE OPERATIONS OF THE PARTY ARE RESTRICTED BY THE STATE IN ONE OTHER
IMPORTANT RESPECT.  BY ART. 3139, 1939 SUPP., THE STATE CONVENTION CAN
ANNOUNCE A PLATFORM OF PRINCIPLES, BUT ITS SUBMISSION AT THE PRIMARY IS
A PREREQUISITE TO PARTY ADVOCACY OF SPECIFIC LEGISLATION.  ART. 3133. 

FN7  CF. PARKER V. BROWN, 317 U.S. 341, 359-60. 

FN8  CF. POLLOCK V. FARMERS' LOAN & TRUST CO., 157 U.S. 429, 652. 

FN9  SEE CASES COLLECTED IN THE DISSENTING OPINION IN BURNET V.
CORONADO OIL & GAS CO., 285 U.S. 393, 410. 

FN10  SEE E.G., UNITED STATES V. DARBY, 312 U.S. 100, OVERRULING
HAMMER V. DAGENHART, 247 U.S. 251; CALIFORNIA V. THOMPSON, 313 U.S.
109, OVERRULING DISANTO V. PENNSYLVANIA, 273 U.S. 34; WEST COAST HOTEL
CO. V. PARRISH, 300 U.S. 379, OVERRULING ADKINS V. CHILDREN'S HOSPITAL,
261 U.S. 525; HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376,
OVERRULING GILLESPIE V. OKLAHOMA, 257 U.S. 501 AND BURNET V. CORONADO
OIL & GAS CO., 285 U.S. 393; ERIE R. CO. V. TOMPKINS, 304 U.S. 64,
OVERRULING SWIFT V. TYSON, 16 PET. 1; GRAVES V. NEW YORK EX REL.
O'KEEFE, 306 U.S. 466, OVERRULING COLLECTOR V. DAY, 11 WALL.  113, AND
NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S. 401; O'MALLEY V. WOODROUGH,
307 U.S. 277, OVERRULING MILES V. GRAHAM, 268 U.S. 501; MADDEN V.
KENTUCKY, 309 U.S. 83, OVERRULING COLGATE V. HARVEY, 296 U.S. 404;
HELVERING V. HALLOCK, 309 U.S. 106, OVERRULING HELVERING V. ST. LOUIS
UNION TRUST CO., 296 U.S. 39 AND BECKER V. ST. LOUIS UNION TRUST CO.,
296 U.S. 48; NYE V. UNITED STATES, 313 U.S. 33, OVERRULING TOLEDO
NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402; ALABAMA V. KING & BOOZER,
314 U.S. 1, OVERRULING PANHANDLE OIL CO. V. KNOX, 277 U.S. 218 AND
GRAVES V. TEXAS CO., 298 U.S. 393; WILLIAMS V. NORTH CAROLINA, 317 U.S.
287, OVERRULING HADDOCK V. HADDOCK, 201 U.S. 562; STATE TAX COMMISSION
V. ALDRICH, 316 U.S. 174, OVERRULING FIRST NATIONAL BANK V. MAINE, 284
U.S. 312; BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, OVERRULING
MINERSVILLE SCHOOL DISTRICT V. GOBITIS, 310 U.S. 586. 

FN11  CF. DISSENT IN BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393
AT 410. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. JUSTICE ROBERTS: 

IN MAHNICH V. SOUTHERN STEAMSHIP CO., 321 U.S. 96, 105, I HAVE
EXPRESSED MY VIEWS WITH RESPECT TO THE PRESENT POLICY OF THE COURT
FREELY TO DISREGARD AND TO OVERRULE CONSIDERED DECISIONS AND THE RULES
OF LAW ANNOUNCED IN THEM.  THIS TENDENCY, IT SEEMS TO ME, INDICATES AN
INTOLERANCE FOR WHAT THOSE WHO HAVE COMPOSED THIS COURT IN THE PAST
HAVE CONSCIENTIOUSLY AND DELIBERATELY CONCLUDED, AND INVOLVES AN
ASSUMPTION THAT KNOWLEDGE AND WISDOM RESIDE IN US WHICH WAS DENIED TO
OUR PREDECESSORS.  I SHALL NOT REPEAT WHAT I THERE SAID FOR I CONSIDER
IT FULLY APPLICABLE TO THE INSTANT DECISION, WHICH BUT POINTS THE MORAL
ANEW. 

A WORD SHOULD BE SAID WITH RESPECT TO THE JUDICIAL HISTORY FORMING
THE BACKGROUND OF GROVEY V. TOWNSEND, 295 U.S. 45, WHICH IS NOW
OVERRULED. 

IN 1923 TEXAS ADOPTED A STATUTE WHICH DECLARED THAT NO NEGRO SHOULD
BE ELIGIBLE TO PARTICIPATE IN A DEMOCRATIC PRIMARY ELECTION IN THAT
STATE.  A NEGRO, A CITIZEN OF THE UNITED STATES AND OF TEXAS, QUALIFIED
TO VOTE, EXCEPT FOR THE PROVISIONS OF THE STATUTE, WAS DENIED THE
OPPORTUNITY TO VOTE IN A PRIMARY ELECTION AT WHICH CANDIDATES WERE TO
BE CHOSEN FOR THE OFFICES OF SENATOR AND REPRESENTATIVE IN THE CONGRESS
OF THE UNITED STATES.  HE BROUGHT ACTION AGAINST THE JUDGES OF ELECTION
IN A UNITED STATES COURT FOR DAMAGES FOR THEIR REFUSAL TO ACCEPT HIS
BALLOT.  THIS COURT UNANIMOUSLY REVERSED A JUDGMENT DISMISSING THE
COMPLAINT AND HELD THAT THE JUDGES ACTED PURSUANT TO STATE LAW AND THAT
THE STATE OF TEXAS, BY ITS STATUTE, HAD DENIED THE VOTER THE EQUAL
PROTECTION SECURED BY THE FOURTEENTH AMENDMENT.  NIXON V. HERNDON, 273
U.S. 536(1927). 

IN 1927 THE LEGISLATURE OF TEXAS REPEALED THE PROVISION CONDEMNED BY
THIS COURT AND ENACTED THAT EVERY POLITICAL PARTY IN THE STATE MIGHT,
THROUGH ITS EXECUTIVE COMMITTEE, PRESCRIBE THE QUALIFICATIONS OF ITS
OWN MEMBERS AND DETERMINE IN ITS OWN WAY WHO SHOULD BE QUALIFIED TO
VOTE OR PARTICIPATE IN THE PARTY, EXCEPT THAT NO DENIAL OF
PARTICIPATION COULD BE DECREED BY REASON OF FORMER POLITICAL OR OTHER
AFFILIATION.  THEREUPON THE STATE EXECUTIVE COMMITTEE OF THE DEMOCRATIC
PARTY IN TEXAS ADOPTED A RESOLUTION THAT WHITE DEMOCRATS, AND NO OTHER,
SHOULD BE ALLOWED TO PARTICIPATE IN THE PARTY'S PRIMARIES. 

A NEGRO, WHOSE PRIMARY BALLOT WAS REJECTED PURSUANT TO THE
RESOLUTION, SOUGHT TO RECOVER DAMAGES FROM THE JUDGES WHO HAD REJECTED
IT.  THE UNITED STATES DISTRICT COURT DISMISSED HIS ACTION, AND THE
CIRCUIT COURT OF APPEALS AFFIRMED; BUT THIS COURT REVERSED THE JUDGMENT
AND SUSTAINED THE RIGHT OF ACTION BY A VOTE OF 5 TO 4.  NIXON V.
CONDON, 286 U.S. 73(1932). 

THE OPINION WAS WRITTEN WITH CARE.  THE COURT REFUSED TO DECIDE
WHETHER A POLITICAL PARTY IN TEXAS HAD INHERENT POWER TO DETERMINE ITS
MEMBERSHIP.  THE COURT SAID, HOWEVER:  "WHATEVER INHERENT POWER A STATE
POLITICAL PARTY HAS TO DETERMINE THE CONTENT OF ITS MEMBERSHIP RESIDES
IN THE STATE CONVENTION," AND REFERRED TO THE STATUTES OF TEXAS TO
DEMONSTRATE THAT THE STATE HAD LEFT THE CONVENTION FREE TO FORMULATE
THE PARTY FAITH.  ATTENTION WAS DIRECTED TO THE FACT THAT THE STATUTE
UNDER ATTACK DID NOT LEAVE TO THE PARTY CONVENTION THE DEFINITION OF
PARTY MEMBERSHIP BUT PLACED IT IN THE PARTY'S STATE EXECUTIVE COMMITTEE
WHICH COULD NOT, BY ANY STRETCH OF REASONING, BE HELD TO CONSTITUTE THE
PARTY.  THE COURT HELD, THEREFORE, THAT THE STATE EXECUTIVE COMMITTEE
ACTED SOLELY BY VIRTUE OF THE STATUTORY MANDATE AND AS DELEGATE OF
STATE POWER, AND AGAIN STRUCK DOWN THE DISCRIMINATION AGAINST NEGRO
VOTERS AS DERIVING FORCE AND VIRTUE FROM STATE ACTION,  - THAT IS, FROM
STATUTE. 

IN 1932 THE DEMOCRATIC CONVENTION OF TEXAS ADOPTED A RESOLUTION THAT
"ALL WHITE CITIZENS OF THE STATE OF TEXAS WHO ARE QUALIFIED TO VOTE
UNDER THE CONSTITUTION AND LAWS OF THE STATE SHALL BE ELIGIBLE TO
MEMBERSHIP IN THE DEMOCRATIC PARTY AND AS SUCH ENTITLED TO PARTICIPATE
IN ITS DELIBERATIONS." 

A NEGRO VOTER QUALIFIED TO VOTE IN A PRIMARY ELECTION, EXCEPT FOR THE
EXCLUSION WORKED BY THE RESOLUTION, DEMANDED AN ABSENTEE BALLOT WHICH
HE WAS ENTITLED TO MAIL TO THE JUDGES AT A PRIMARY ELECTION EXCEPT FOR
THE RESOLUTION.  THE COUNTY CLERK REFUSED TO FURNISH HIM A BALLOT.  HE
BROUGHT AN ACTION FOR DAMAGES AGAINST THE CLERK IN A STATE COURT.  THAT
COURT, WHICH WAS THE TRIBUNAL HAVING FINAL JURISDICION UNDER THE LAWS
OF TEXAS, DISMISSED HIS COMPLAINT AND HE BROUGHT THE CASE TO THIS COURT
FOR REVIEW.  AFTER THE FULLEST CONSIDERATION BY THE WHOLE COURT  FN1
AN OPINION WAS WRITTEN REPRESENTING ITS UNANIMOUS VIEWS AND AFFIRMING
THE JUDGMENT.  GROVEY V. TOWNSEND, 295 U.S. 45(1935). 

I BELIEVE IT WILL NOT BE GAINSAID THE CASE RECEIVED THE ATTENTION AND
CONSIDERATION WHICH THE QUESTIONS INVOLVED DEMANDED AND THE OPINION
REPRESENTED THE VIEWS OF ALL THE JUSTICES.  IT APPEARS THAT THOSE VIEWS
DO NOT NOW COMMEND THEMSELVES TO THE COURT.  I SHALL NOT RESTATE THEM. 
THEY ARE EXPOSED IN THE OPINION AND MUST STAND OR FALL ON THEIR
MERITS.  THEIR SOUNDNESS, HOWEVER, IS NOT A MATTER WHICH PRESENTLY
CONCERNS ME. 

THE REASON FOR MY CONCERN IS THAT THE INSTANT DECISION, OVERRULING
THAT ANNOUNCED ABOUT NINE YEARS AGO, TENDS TO BRING ADJUDICATIONS OF
THIS TRIBUNAL INTO THE SAME CLASS AS A RESTRICTED RAILROAD TICKET, GOOD
FOR THIS DAY AND TRAIN ONLY.  I HAVE NO ASSURANCE, IN VIEW OF CURRENT
DECISIONS, THAT THE OPINION ANNOUNCED TODAY MAY NOT SHORTLY BE
REPUDIATED AND OVERRULED BY JUSTICES WHO DEEM THEY HAVE NEW LIGHT ON
THE SUBJECT.  IN THE PRESENT TERM THE COURT HAS OVERRULED THREE CASES. 

IN THE PRESENT CASE, AS IN MAHNICH V. SOUTHERN S.S. CO., SUPRA, THE
COURT BELOW RELIED, AS IT WAS BOUND TO, UPON OUR PREVIOUS DECISION.  AS
THAT COURT POINTS OUT, THE STATUTES OF TEXAS HAVE NOT BEEN ALTERED
SINCE GROVEY V. TOWNSEND WAS DECIDED.  THE SAME RESOLUTION IS INVOLVED
AS WAS DRAWN IN QUESTION IN GROVEY V. TOWNSEND.  NOT A FACT
DIFFERENTIATES THAT CASE FROM THIS EXCEPT THE NAMES OF THE PARTIES. 

IT IS SUGGESTED THAT GROVEY V. TOWNSEND WAS OVERRULED SUB SILENTIO IN
UNITED STATES V. CLASSIC, 313 U.S. 299.  IF SO, THE SITUATION IS EVEN
WORSE THAN THAT EXHIBITED BY THE OUTRIGHT REPUDIATION OF AN EARLIER
DECISION, FOR IT IS THE FACT THAT, IN THE CLASSIC CASE, GROVEY V.
TOWNSEND WAS DISTINGUISHED IN BRIEF AND ARGUMENT BY THE GOVERNMENT
WITHOUT SUGGESTION THAT IT WAS WRONGLY DECIDED, AND WAS RELIED ON BY
THE APPELLEES, NOT AS A CONTROLLING DECISION, BUT BY WAY OF ANALOGY. 
THE CASE IS NOT MENTIONED IN EITHER OF THE OPINIONS IN THE CLASSIC
CASE.  AGAIN AND AGAIN IT IS SAID IN THE OPINION OF THE COURT IN THAT
CASE THAT THE VOTER WHO WAS DENIED THE RIGHT TO VOTE WAS A FULLY
QUALIFIED VOTER.  IN OTHER WORDS, THERE WAS NO QUESTION OF HIS BEING A
PERSON ENTITLED UNDER STATE LAW TO VOTE IN THE PRIMARY.  THE OFFENSE
CHARGED WAS THE FRAUDULENT DENIAL OF HIS CONCEDED RIGHT BY AN ELECTION
OFFICER BECAUSE OF HIS RACE.  HERE THE QUESTION IS ALTOGETHER
DIFFERENT.  IT IS WHETHER, IN A DEMOCRATIC PRIMARY, HE WHO TENDERED HIS
VOTE WAS A MEMBER OF THE DEMOCRATIC PARTY. 

I DO NOT STOP TO CALL ATTENTION TO THE MATERIAL DIFFERENCES BETWEEN
THE PRIMARY ELECTION LAWS OF LOUISIANA UNDER CONSIDERATION IN THE
CLASSIC CASE AND THOSE OF TEXAS WHICH ARE HERE DRAWN IN QUESTION. 
THESE DIFFERENCES WERE SPELLED OUT IN DETAIL IN THE GOVERNMENT'S BRIEF
IN THE CLASSIC CASE AND EMPHASIZED IN ITS ORAL ARGUMENT.  IT IS ENOUGH
TO SAY THAT THE LOUISIANA STATUTES REQUIRED THE PRIMARY TO BE CONDUCTED
BY STATE OFFICIALS AND MADE IT A STATE ELECTION, WHEREAS, UNDER THE
TEXAS STATUTE, THE PRIMARY IS A PARTY ELECTION CONDUCTED AT THE EXPENSE
OF MEMBERS OF THE PARTY AND BY OFFICIALS CHOSEN BY THE PARTY.  IF THIS
COURT'S OPINION IN THE CLASSIC CASE DISCLOSES ITS METHOD OF OVERRULING
EARLIER DECISIONS, I CAN ONLY PROTEST THAT, IN FAIRNESS, IT SHOULD
RATHER HAVE ADOPTED THE OPEN AND FRANK WAY OF SAYING WHAT IT WAS DOING
THAN, AFTER THE EVENT, CHARACTERIZE ITS PAST ACTION AS OVERRULING
GROVEY V. TOWNSEND THOUGH THOSE LESS SAPIENT NEVER REALIZED THE FACT. 
IT IS REGRETTABLE THAT IN AN ERA MARKED BY DOUBT AND CONFUSION, AN ERA
WHOSE GREATEST NEED IS STEADFASTNESS OF THOUGHT AND PURPOSE, THIS
COURT, WHICH HAS BEEN LOOKED TO AS EXHIBITING CONSISTENCY IN
ADJUDICATION, AND A STEADINESS WHICH WOULD HOLD THE BALANCE EVEN IN THE
FACE OF TEMPORARY EBBS AND FLOWS OF OPINION, SHOULD NOW ITSELF BECOME
THE BREEDER OF FRESH DOUBT AND CONFUSION IN THE PUBLIC MIND AS TO THE
STABILITY OF OUR INSTITUTIONS. 

FN1  THE COURT WAS COMPOSED OF HUGHES, C.J., VAN DEVANTER,
MCREYNOLDS, BRANDEIS, SUTHERLAND, BUTLER, STONE, ROBERTS AND CARDOZO,
JJ.
..END :


















U.S. V. WABASH R. CO., 321 U.S. 403 


NO. 453.  ARGUED MARCH 8, 1944.  - DECIDED MARCH 27, 1944.  - 51
F.SUPP.  141, REVERSED. 


1.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DIRECTING APPELLEE
RAILROADS TO CANCEL CERTAIN TARIFF SUPPLEMENTS BY WHICH THEY PROPOSED
TO ELIMINATE CHARGES FOR SPOTTING FREIGHT CARS AT THE DOORS OF
FACTORIES IN THE INDUSTRIAL PLANT OF A MANUFACTURING COMPANY - BASED ON
ITS FINDING THAT PERFORMANCE OF THE SPOTTING SERVICE WITHOUT CHARGE
WOULD BE AN UNLAWFUL PREFERENCE BECAUSE A DEPARTURE FROM FILED TARIFFS,
IN VIOLATION OF SEC. 6(7) OF THE INTERSTATE COMMERCE ACT - SUSTAINED. 
PP. 405, 410. 

2.  THE POINT IN TIME AND SPACE AT WHICH THE CARRIER'S TRANSPORTATION
SERVICE ENDS IS A QUESTION OF FACT TO BE DETERMINED BY THE COMMISSION,
AND ITS FINDINGS ON THAT QUESTION, IF SUPPORTED BY EVIDENCE, WILL NOT
BE DISTURBED BY THE COURTS.  P. 408. 

3.  THE COMMISSION'S CONCLUSION IN THIS CASE THAT THE MOVEMENT OF
CARS BETWEEN THE INTERCHANGE TRACKS AND POINTS OF LOADING AND UNLOADING
WAS A PLANT SERVICE FOR THE CONVENIENCE OF THE INDUSTRY, AND NOT A PART
OF THE CARRIER SERVICE COMPARABLE TO THE USUAL CAR DELIVERY AT A TEAM
TRACK OR SIDING, IS SUPPORTED BY THE EVIDENCE AND IS BINDING ON
REVIEW.  P. 409. 

4.  SECTION 6(7) PROHIBITS DEPARTURES FROM THE FILED TARIFFS AND IT
IS VIOLATED WHEN CARRIERS PAY THE INDUSTRIES FOR A TERMINAL SERVICE NOT
INCLUDED IN THEIR TRANSPORTATION SERVICE OR WHEN THEY RENDER SUCH
TERMINAL SERVICE FREE OF CHARGE.  P. 410. 

5.  THE PROHIBITION OF SEC. 6(7) APPLIES WITHOUT QUALIFICATION TO
EVERY CARRIER, AND WHEN THE UNLAWFULNESS OF THE ALLOWANCE OR SERVICE IS
SHOWN BY THE CONDITIONS PREVAILING AT A PARTICULAR INDUSTRIAL PLANT, IT
IS UNNECESSARY, IN ORDER TO SUPPORT THE COMMISSION'S ORDER, TO CONSIDER
WHETHER GENERALLY SIMILAR ALLOWANCES OR SERVICES AT OTHER PLANTS ARE,
OR ARE NOT, LAWFUL UNDER CONDITIONS PREVAILING THERE.  P. 410. 

6.  THE FINDING OF THE COURT BELOW THAT THE MANUFACTURING COMPANY IN
THIS CASE WAS BEING DISCRIMINATED AGAINST BY THE CONTINUANCE OF FREE
SPOTTING SERVICE AT OTHER PLANTS IS IRRELEVANT TO ANY ISSUE IN THE
PRESENT PROCEEDING, WHICH RELATES ONLY TO VIOLATIONS OF SEC. 6(7) AND
NOT TO SECS. 2 AND 3(1).  P. 413. 

7.  WHILE IT IS THE DUTY OF THE COMMISSION TO PROCEED AS RAPIDLY AS
MAY BE TO SUPPRESS VIOLATIONS OF SEC. 6(7) IN THE PERFORMANCE OF
SPOTTING SERVICES, THAT IS TO BE ACCOMPLISHED BY AN INVESTIGATION OF
THE TRAFFIC CONDITIONS PREVAILING AT EACH PARTICULAR PLANT WHERE THE
SERVICE IS RENDERED AND NOT BY COMPARISON OF THE SERVICES RENDERED AT
DIFFERENT PLANTS.  P. 413. 

8.  THE COMMISSION IS NOT REQUIRED TO SUPPRESS ALL VIOLATIONS OF SEC.
6(7) SIMULTANEOUSLY OR NONE.  P. 414. 

UNITED STATES ET AL. V. WABASH RAILROAD CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES SETTING
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE STONE, ANNOUNCED BY MR.
JUSTICE ROBERTS. 

THE INTERSTATE COMMERCE COMMISSION, IN A REPORT AND ORDER
SUPPLEMENTAL TO ITS MAIN REPORT IN EX PARTE 104, PRACTICES OF CARRIERS
AFFECTING OPERATING REVENUES OR EXPENSES, PART II, TERMINAL SERVICES,
209 I.C.C. 11, HAS DIRECTED APPELLEE RAILROADS TO CANCEL CERTAIN TARIFF
SUPPLEMENTS BY WHICH THEY PROPOSE TO ELIMINATE CHARGES FOR SPOTTING
FREIGHT CARS AT THE DOORS OF FACTORIES IN THE INDUSTRIAL PLANT OF
APPELLEE STALEY MANUFACTURING CO., AT DECATUR, ILLINOIS.  THE
COMMISSION BASED ITS ORDER UPON A FINDING THAT THE PERFORMANCE WITHOUT
CHARGE OF THE SPOTTING SERVICE WOULD BE AN UNLAWFUL PREFERENCE BECAUSE
A DEPARTURE FROM FILED TARIFFS, IN VIOLATION OF SEC. 6(7) OF THE
INTERSTATE COMMERCE ACT.  49 U.S.C. SEC. 6(7).  ON APPELLEES' PETITION
THE DISTRICT COURT FOR SOUTHERN ILLINOIS, THREE JUDGES SITTING, 28
U.S.C. SEC. 47, SET ASIDE THE COMMISSION'S ORDER, 51 F.SUPP.  141.  IT
HELD THAT THE COMMISSION'S CONCLUSION THAT THE FREE SPOTTING SERVICE
RENDERED AT THE STALEY PLANT IS AN UNLAWFUL PREFERENCE, WAS NOT
SUPPORTED BY EVIDENCE, AND THAT THE COMMISSION'S ORDER MUST BE SET
ASIDE BECAUSE IT RESULTS IN DISCRIMINATION CONTRARY TO SECS. 2 AND 3(1)
OF THE ACT, SINCE IT APPEARS THAT SIMILAR FREE SPOTTING SERVICE WAS
BEING RENDERED TO STALEY'S COMPETITORS AGAINST WHICH THE COMMISSION HAD
ISSUED NO ORDER.  THE CASE COMES HERE ON APPEAL UNDER 28 U.S.C. SECS.
47A, 345.  THE PRINCIPAL QUESTION FOR OUR DECISION IS WHETHER, AS THE
DISTRICT COURT THOUGHT, THE ORDER IS INVALID BECAUSE IT RESULTS IN A
PROHIBITED DISCRIMINATION. 

IN EX PARTE 104, THE COMMISSION INITIATED AN EXTENSIVE INVESTIGATION
OF THE SERVICE RENDERED BY INTERSTATE RAILROADS IN SPOTTING CARS AT
POINTS UPON THE SYSTEMS OF PLANT TRACKAGE MAINTAINED BY LARGE
INDUSTRIES.  AFTER A STUDY OF THE CONDITIONS AT SOME TWO HUNDRED
INDUSTRIAL PLANTS TO WHICH THE RAIL CARRIERS MADE ALLOWANCES FOR
SPOTTING SERVICE PERFORMED BY THE INDUSTRIES, AND AT NUMEROUS OTHER
PLANTS WHERE THE SPOTTING SERVICE WAS RENDERED WITHOUT CHARGE BY THE
CARRIERS, THE COMMISSION FOUND THAT THE FREIGHT RATES HAD NOT BEEN SO
FIXED AS TO COMPENSATE THE CARRIERS FOR SUCH SERVICE AND THAT THE
RAILROADS BY ASSUMING TO PERFORM IT, OR PAY FOR ITS PERFORMANCE BY THE
INDUSTRIES, HAD ASSUMED A BURDEN NOT INCLUDED IN THE TRANSPORTATION
SERVICE COMPENSATED BY THE FILED TARIFFS.  AND IT CONCLUDED THAT THE
PERFORMANCE BY THE RAILROADS OF SUCH SERVICE, FREE, OR THE PAYMENT TO
THE INDUSTRIES OF ALLOWANCES FOR ITS PERFORMANCE BY THEM, IS IN
VIOLATION OF SEC. 6(7) OF THE ACT. 

THE COMMISSION, IN ITS MAIN REPORT IN EX PARTE 104, RECOGNIZED THAT
BY RAILWAY TARIFF PRACTICE IN THIS COUNTRY THE RATES ON CARLOAD TRAFFIC
MOVING TO OR FROM ANY CITY OR TOWN APPLY TO SO-CALLED "SWITCHING" OR
"TERMINAL" DISTRICTS AND ENTITLE EACH INDUSTRY WITHIN SUCH A DISTRICT
TO HAVE THE TRAFFIC DELIVERED DIRECTLY TO AND TAKEN FROM ITS SITE.  BY
THIS METHOD OF DELIVERY AND BY USE OF PRIVATE TRACKS OF THE INDUSTRY
THE RAILROADS ARE SAVED THE EXPENSE OF MAINTAINING MORE EXTENSIVE
TERMINAL FACILITIES, THE SERVICE AND COST OF DELIVERY WITHIN THE
SWITCHING DISTRICT BEING COMPARABLE TO THAT OF DELIVERY ON TEAM TRACKS
OR SIDINGS OR AT WAY STATIONS.  BUT IN THE CASE OF LARGE INDUSTRIES
HAVING EXTENSIVE PLANT TRACKAGE THE COMMISSION FOUND THAT CARS HAULED
TO THE INDUSTRY USUALLY COME TO REST AT NEARBY INTERCHANGE TRACKS,
AFTER WHICH THE INTRAPLANT DISTRIBUTION OF THE CARS IS MADE AT TIMES
AND IN A MANNER TO SERVE THE CONVENIENCE OF THE INDUSTRY RATHER THAN
THAT OF THE CARRIER IN COMPLETING ITS TRANSPORTATION SERVICE. 

IN DETERMINING IN SUCH CIRCUMSTANCES THE POINT AT WHICH THE CARRIER
SERVICE ENDS AND THE SERVICE IN PLACING THE CARS SO AS TO MEET THE
CONVENIENCE OF THE INDUSTRY BEGINS, THE COMMISSION STATED THAT THE LINE
OF DEMARCATION "SHOULD BE DRAWN AT THE POINT WHERE THE CARRIER IS
PREVENTED FROM PERFORMING AT ITS ORDINARY OPERATING CONVENIENCE ANY
FURTHER SERVICE, BY THE NATURE, DESIRES, OR DISABILITIES OF A PLANT,"
209 I.C.C. AT 34.  IT ADDED, "WHEN A CARRIER IS PREVENTED AT ITS
ORDINARY OPERATING CONVENIENCE FROM REACHING POINTS OF LOADING OR
UNLOADING WITHIN A PLANT, WITHOUT INTERRUPTION OR INTERFERENCE BY THE
DESIRES OF AN INDUSTRY OR THE DISABILITIES OF ITS PLANT, SUCH AS THE
MANNER IN WHICH THE INDUSTRIAL OPERATIONS ARE CONDUCTED, THE
ARRANGEMENT OR CONDITION OF ITS TRACKS, WEIGHING SERVICE, OR SIMILAR
CIRCUMSTANCES,  ...  THE SERVICE BEYOND THE POINT OF INTERRUPTION OR
INTERFERENCE IS IN EXCESS OF THAT PERFORMED IN SIMPLE SWITCHING OR TEAM
TRACK DELIVERY.  ...  " 209 I.C.C. AT 44-5. 

THE APPLICATION OF SUCH A TEST OBVIOUSLY REQUIRES AN INTENSIVE STUDY
OF TRAFFIC CONDITIONS PREVAILING AT THE PARTICULAR PLANT AT WHICH THE
SPOTTING SERVICE IS RENDERED.  IT IS FOR THIS REASON THAT THE
COMMISSION, IN CARRYING INTO EFFECT THE PRINCIPLES ANNOUNCED IN EX
PARTE 104, HAS FOUND IT NECESSARY TO PROCEED TO A SERIES OF
SUPPLEMENTAL INVESTIGATIONS OF THE SPOTTING SERVICE RENDERED AT
PARTICULAR PLANTS.  ACCORDINGLY THE COMMISSION MADE NO ORDER ON THE
FOOT OF ITS MAIN REPORT, BUT FOLLOWING A SERIES OF SUPPLEMENTAL
REPORTS, INCLUDING THE PRESENT ONE, EACH DETAILING THE FACTS FOUND AS
TO THE SPOTTING SERVICE RENDERED AT THE PARTICULAR PLANT INVESTIGATED,
THE COMMISSION HAS MADE CEASE AND DESIST ORDERS, APPLICABLE TO THAT
SERVICE, A NUMBER OF WHICH THIS COURT HAS UPHELD ON REVIEW.  SEE UNITED
STATES V. AMERICAN SHEET & TIN PLATE CO., 301 U.S. 402; GOODMAN LUMBER
CO. V. UNITED STATES, 301 U.S. 669; A.O. SMITH CORP. V. UNITED STATES,
301 U.S. 669; UNITED STATES V. PAN AMERICAN PETROLEUM CORP., 304 U.S.
156.  IN SUSTAINING THE COMMISSION'S FINDINGS IN THESE PROCEEDINGS, AS
IN RELATED CASES, THIS COURT HAS HELD THAT THE POINT IN TIME AND SPACE
AT WHICH THE CARRIER'S TRANSPORTATION SERVICE ENDS IS A QUESTION OF
FACT TO BE DETERMINED BY THE COMMISSION AND NOT THE COURTS, AND THAT
ITS FINDINGS ON THAT QUESTION WILL NOT BE DISTURBED BY THE COURTS IF
SUPPORTED BY EVIDENCE.  UNITED STATES V. AMERICAN SHEET & TIN PLATE
CO., SUPRA, 408; UNITED STATES V. PAN AMERICAN PETROLEUM CORP., SUPRA,
158; INTERSTATE COMMERCE COMMISSION V. HOBOKEN MFRS.  R. CO., 320 U.S.
368, 378 AND CASES CITED. 

IN THIS, AS IN ITS EARLIER SUPPLEMENTAL REPORTS, THE COMMISSION HAS
EXAMINED THE ACTUAL CONDITIONS OF OPERATION AT THE INDUSTRIAL PLANT IN
QUESTION, HERE THE STALEY PLANT, AND HAS FOUND THESE CONDITIONS TO BE
SIMILAR IN TYPE TO THOSE HELD SUFFICIENT TO SUPPORT ITS ORDERS IN
UNITED STATES V. AMERICAN SHEET & TIN PLATE CO., SUPRA, AND UNITED
STATES V. PAN AMERICAN PETROLEUM CORP., SUPRA.  FN1  IT MADE AN
EXTENDED EXAMINATION OF CAR MOVEMENTS WITHIN THE PLANT AREA OF THE
STALEY COMPANY, WHICH EXTENDS FOR A DISTANCE OF ABOUT TWO AND A QUARTER
MILES, INCLUDES SOME FORTY BUILDINGS USED IN THE MANUFACTURE OF VARIOUS
PRODUCTS, PRINCIPALLY FROM CORN AND SOY BEANS, AND CONTAINS
APPROXIMATELY 20 MILES OF TRACK, HAVING 18 POINTS AT WHICH FREIGHT IS
LOADED OR UNLOADED.  IT FOUND THAT INBOUND CARS ARE IN THE FIRST
INSTANCE PLACED UPON INTERCHANGE TRACKS FROM WHICH THEY ARE LATER
SPOTTED AT THE POINTS OF LOADING AND UNLOADING, A SERVICE REQUIRING IN
NUMEROUS INSTANCES TWO OR MORE CAR MOVEMENTS PERFORMED BY ENGINES AND
CREWS REGULARLY AND EXCLUSIVELY ASSIGNED TO IT; THAT THE INTERCHANGE
TRACKS ARE REASONABLY CONVENIENT POINTS FOR THE DELIVERY AND RECEIPT OF
CARS; THAT THE MOVEMENTS BETWEEN THE INTERCHANGE TRACKS AND THE POINTS
OF LOADING AND UNLOADING ARE NOT PERFORMED AT THE CARRIER'S CONVENIENCE
BUT ARE "COORDINATED WITH THE INDUSTRIAL OPERATIONS OF THE STALEY
COMPANY AND CONFORM TO ITS CONVENIENCE"; THAT THE SERVICE BEYOND THE
INTERCHANGE POINTS IS IN EXCESS OF THAT INVOLVED IN SWITCHING CARS TO A
TEAM TRACK OR ORDINARY INDUSTRIAL SIDING OR SPUR, AND IS CONSEQUENTLY
NOT A PART OF THE TRANSPORTATION SERVICE WHICH ENDS AT THE INTERCHANGE
TRACKS. 

CONTENTIONS OF APPELLEES BASED ON A FORMAL CHANGE OF CONTROL OF THE
INTERCHANGE TRACKS BY LEASE FROM THE STALEY COMPANY TO APPELLEE WABASH
RAILROAD EXECUTED SUBSEQUENT TO THE COMMISSION'S REPORT IN EX PARTE
104, ARE IRRELEVANT TO OUR PRESENT INQUIRY.  AFTER THE LEASE, AS
BEFORE, THEY CONTINUED TO BE USED AS INTERCHANGE TRACKS AND THE
CONTROLLING QUESTION IS WHETHER THE MOVEMENT FROM THE INTERCHANGE
TRACKS TO POINTS OF LOADING AND UNLOADING IS A PLANT SERVICE FOR THE
CONVENIENCE OF THE INDUSTRY, OR A PART OF THE CARRIER SERVICE
COMPARABLE TO THE USUAL CAR DELIVERY AT A TEAM TRACK OR SIDING.  THE
COMMISSION'S FINDING THAT IT IS A PLANT SERVICE IS SUPPORTED BY
EVIDENCE AND MUST BE ACCEPTED AS CONCLUSIVE HERE. 

APPELLEES MAKE NO OTHER SERIOUS CONTENTION OF WANT OF EVIDENTIARY
SUPPORT FOR THE COMMISSION'S CONCLUSION THAT THE CARRIER SERVICE ENDED
AT THE INTERCHANGE TRACKS AND THE DISTRICT COURT FOUND NO SUCH LACK. 
THEIR CONTENTION, UPHELD BY THE COURT BELOW, IS THAT THE COMMISSION'S
ORDER CANNOT BE SUPPORTED MERELY BY THE CIRCUMSTANCES DISCLOSED BY THE
EVIDENCE RESPECTING THE OPERATIONS AT THE STALEY PLANT, BUT THAT ITS
VALIDITY MUST TURN UPON A COMPARISON OF THE CONDITIONS AT THE STALEY
PLANT WITH THOSE AT COMPETING PLANTS.  THEY URGE FURTHER, AND THE
DISTRICT COURT SO HELD, THAT, AS IT APPEARS FROM THE RECORD THAT
SIMILAR SPOTTING SERVICE IS BEING RENDERED AT COMPETING PLANTS, THE
COMMISSION'S ORDER COMPELS APPELLEES TO DISCRIMINATE AGAINST STALEY,
CONTRARY TO SECS. 2 AND 3(1). 

THIS ARGUMENT IGNORES THE NATURE OF THE PRESENT PROCEEDING WHICH IS
TO ENFORCE SEC. 6(7), NOT SECS. 2 AND 3(1).  SECTION 6(7) PROHIBITS
DEPARTURES FROM THE FILED TARIFFS AND IT IS VIOLATED, AS THE COMMISSION
HAS POINTED OUT, WHEN CARRIERS PAY THE INDUSTRIES FOR A TERMINAL
SERVICE NOT INCLUDED IN THEIR TRANSPORTATION SERVICE OR WHEN THEY
RENDER SUCH TERMINAL SERVICE FREE OF CHARGE.  THIS PROHIBITION APPLIES
WITHOUT QUALIFICATION TO EVERY CARRIER AND WHEN, AS HERE, THE
UNLAWFULNESS OF THE ALLOWANCE OR SERVICE IS SHOWN BY THE CONDITIONS
PREVAILING AT A PARTICULAR INDUSTRIAL PLANT, IT IS UNNECESSARY, IN
ORDER TO SUPPORT THE COMMISSION'S ORDER, TO CONSIDER WHETHER GENERALLY
SIMILAR ALLOWANCES OR SERVICES AT OTHER PLANTS ARE, OR ARE NOT, LAWFUL
UNDER CONDITIONS PREVAILING THERE. 

IN THIS RESPECT A PROCEEDING UNDER SEC. 6(7) IS UNLIKE PROCEEDINGS
UNDER SECS. 2 AND 3(1) WHICH PROHIBIT UNJUST DISCRIMINATIONS AND UNDUE
PREFERENCES.  UNITED STATES V. AMERICAN SHEET & TIN PLATE CO., SUPRA,
406; UNITED STATES V. HANLEY, 71 F. 672, 673-4; COMPARE MERCHANTS
WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501, 510-11.  SINCE UNDER
THESE SECTIONS ACTS OR PRACTICES NOT OTHERWISE UNLAWFUL MAY BE SO
BECAUSE DISCRIMINATORY OR PREFERENTIAL, IT BECOMES NECESSARY TO MAKE
COMPARISONS BETWEEN THE DIFFERENT ACTS OR PRACTICES SAID TO PRODUCE THE
DISCRIMINATION OR PREFERENCE, IN ORDER TO DETERMINE WHETHER THEY ARE
SUCH IN FACT AND WHETHER THEY ARE UNJUST OR UNDUE.  DIFFERENCES IN
CONDITIONS MAY JUSTIFY DIFFERENCES IN CARRIER RATES OR SERVICE.  IN
DETERMINING WHETHER THERE IS A PROHIBITED UNJUST DISCRIMINATION OR
UNDUE PREFERENCE, IT IS FOR THE COMMISSION TO SAY WHETHER SUCH
DIFFERENCES IN CONDITIONS EXIST AND WHETHER, IN VIEW OF THEM, THE
DISCRIMINATION OR PREFERENCE IS UNLAWFUL.  SEE BARRINGER & CO. V.
UNITED STATES, 319 U.S. 1, 7-8, AND CASES CITED. 

THE COMMISSION'S DECISION HERE, AND ITS FINDING OF A "PREFERENTIAL
SERVICE," ARE NOT BASED AND DO NOT DEPEND ON A COMPARISON OF CONDITIONS
AT THE STALEY PLANT WITH THOSE OBTAINING AT OTHERS.  BY ITS FIFTH
FINDING THE COMMISSION FOUND THAT THE SPOTTING SERVICE RENDERED AT THE
STALEY PLANT WAS A SERVICE "IN EXCESS OF THAT RENDERED SHIPPERS
GENERALLY IN THE RECEIPT AND DELIVERY OF TRAFFIC AT TEAM TRACKS OR
INDUSTRIAL SIDINGS AND SPURS," AND HENCE IN EXCESS OF THAT PROVIDED FOR
BY THE TARIFF RATES.  IT CONCLUDED IN ITS THIRD CONCLUSION OF LAW THAT
THE PERFORMANCE OF THIS SERVICE WITHOUT CHARGE WOULD RESULT IN RECEIPT
BY THE STALEY COMPANY OF "A PREFERENTIAL SERVICE NOT ACCORDED TO
SHIPPERS GENERALLY," AND HENCE WOULD RESULT IN A PROHIBITED REFUNDING
OR REMITTING OF A PORTION OF THE FILED TARIFF RATES. 

THE COMMISSION, AFTER POINTING OUT THAT EVIDENCE WAS INTRODUCED
SHOWING THAT SPOTTING IS PERFORMED WITHOUT CHARGE AT VARIOUS PLANTS,
SOME OF WHICH COMPETE WITH THE STALEY COMPANY, ALSO FOUND, "THE
EVIDENCE DOES NOT SATISFACTORILY SHOW THAT THE CIRCUMSTANCES AND
CONDITIONS UNDER WHICH THE SPOTTING IS PERFORMED AT SUCH PLANTS ARE
SUBSTANTIALLY SIMILAR TO THOSE AT THE STALEY PLANT.  IF IT DID IT WOULD
ONLY SHOW THE PROBABILITY OF EXISTENCE OF UNLAWFUL PRACTICES AT SUCH
PLANTS AND THE NEED FOR INVESTIGATION IN CONNECTION THEREWITH."  THE
DISTRICT COURT RELIED SOLELY ON THIS EVIDENCE TO SUPPORT ITS CONCLUSION
OF LACK OF EVIDENTIARY SUPPORT FOR THE COMMISSION'S FINDING OF A
"PREFERENTIAL SERVICE NOT ACCORDED TO SHIPPERS GENERALLY" AND TO
SUPPORT ITS OWN FINDING THAT UNDER THE PRESENT ORDER STALEY IS BEING
DISCRIMINATED AGAINST.  FOR THIS REASON IT CONCLUDED THAT THE
COMMISSION'S ORDER MUST BE SET ASIDE.    WE THINK THAT THIS IS A
MISTAKEN INTERPRETATION OF THE COMMISSION'S FINDINGS AND MISAPPREHENDS
THEIR LEGAL EFFECT.  IF THE COMMISSION'S REFERENCE, IN ITS CONCLUSION
OF LAW, TO "A PREFERENTIAL SERVICE NOT ACCORDED TO SHIPPERS GENERALLY"
MEANS MORE THAN THE STATEMENT IN THE FIFTH FINDING OF FACT THAT THE
SERVICE IS "IN EXCESS OF THAT RENDERED SHIPPERS GENERALLY IN THE
RECEIPT AND DELIVERY OF TRAFFIC AT TEAM TRACKS," IT IS OBVIOUSLY
IRRELEVANT TO THE PRESENT PROCEEDING.  FOR IT COULD NOT SERVE TO
FORECLOSE THE LEGAL CONCLUSION TO BE DRAWN FROM THE FIFTH FINDING THAT
THE FREE PERFORMANCE OF THE SPOTTING SERVICE AT THE STALEY PLANT IS IN
VIOLATION OF SEC. 6(7) BECAUSE OF THE TRAFFIC CONDITIONS FOUND TO
PREVAIL THERE.  UNITED STATES V. AMERICAN SHEET & TIN PLATE CO., SUPRA,
406-7.  BUT A READING OF THE COMMISSION'S REPORT AND FINDINGS MAKES
ABUNDANTLY CLEAR THAT IT WAS NOT CONCERNED WITH DISCRIMINATIONS OR
PREFERENCES BETWEEN THE STALEY PLANT AND OTHERS, SUCH AS ARE PROHIBITED
BY SECS. 2 AND 3(1); THAT THE "PREFERENCE" TO WHICH IT REFERRED WAS NOT
BASED UPON A COMPARISON OF CONDITIONS AT THE STALEY PLANT WITH THOSE OF
OTHERS, BUT UPON AN APPLICATION TO THE ACTUAL CONDITIONS AT THE STALEY
PLANT OF THE STANDARDS LAID DOWN IN ITS REPORT IN EX PARTE 104, IN
ORDER TO ASCERTAIN WHETHER THE SERVICE RENDERED THERE IS IN EXCESS OF
THAT WHICH THE CARRIERS ARE OBLIGED TO PERFORM BY THEIR TARIFFS. 

AS THE COMMISSION AND THIS COURT HAVE POINTED OUT, A PREFERENCE OR
REBATE IS THE NECESSARY RESULT OF EVERY VIOLATION OF SEC. 6(7) WHERE
THE CARRIER RENDERS OR PAYS FOR A SERVICE NOT COVERED BY THE PRESCRIBED
TARIFFS.  DAVIS V. CORNWELL, 264 U.S. 560, 562.  THE COMMISSION
EMPHASIZED THAT NO QUESTION OF DISCRIMINATION OR PREFERENCE PROHIBITED
BY SECS. 2 AND 3 WAS INVOLVED IN THE PRESENT PROCEEDING WHEN IT FOUND
THAT THE EVIDENCE DID NOT SHOW THAT THE CIRCUMSTANCES AND CONDITIONS
UNDER WHICH THE SPOTTING IS PERFORMED AT OTHER PLANTS ARE SUBSTANTIALLY
SIMILAR TO THOSE AT THE STALEY PLANT, AND THAT IF IT DID THAT IT WOULD
ONLY TEND TO SHOW THAT THE PRACTICE WAS UNLAWFUL AT THE OTHERS AS
WELL.  SO FAR AS THE DISTRICT COURT FOUND THAT THE STALEY COMPANY WAS
BEING DISCRIMINATED AGAINST BY THE CONTINUANCE OF THE SERVICE AT OTHER
PLANTS, ITS FINDING IS IRRELEVANT TO ANY ISSUE IN THE PRESENT
PROCEEDING WHICH RELATES ONLY TO VIOLATIONS OF SEC. 6(7) AND NOT SECS.
2 AND 3(1).  IN ANY CASE FINDINGS OF DISCRIMINATION OR UNDUE PREFERENCE
UNDER SECS. 2 AND 3(1), AS WE HAVE SAID, ARE FOR THE COMMISSION AND NOT
THE COURTS.  AND THE COMMISSION HAS FOUND THAT THE EVIDENCE DOES NOT
SHOW THAT CONDITIONS WITH RESPECT TO THE SPOTTING SERVICE AT THE STALEY
PLANT AND THOSE OF ITS COMPETITORS ARE SIMILAR. 

WHILE IT IS THE DUTY OF THE COMMISSION TO PROCEED AS RAPIDLY AS MAY
BE TO SUPPRESS VIOLATIONS OF SEC. 6(7) IN THE PERFORMANCE OF SPOTTING
SERVICES, THAT IS TO BE ACCOMPLISHED, AS WE HAVE HELD, BY AN
INVESTIGATION OF THE TRAFFIC CONDITIONS PREVAILING AT EACH PARTICULAR
PLANT WHERE THE SERVICE IS RENDERED AND NOT BY COMPARISON OF THE
SERVICES RENDERED AT DIFFERENT PLANTS.  APPELLEES COMPLAIN OF THE
COMMISSION'S LONG DELAY, SOME SIX YEARS SINCE THE PRESENT PROCEEDING
WAS BEGUN, IN INVESTIGATING SPOTTING SERVICES RENDERED AT THE PLANTS OF
STALEY'S COMPETITORS, BUT ANY OF THE APPELLEES HAVE BEEN FREE TO
INITIATE PROCEEDINGS TO ELIMINATE ANY UNLAWFUL PREFERENCES OR
DISCRIMINATIONS AFFECTING THEM IF THEY SO DESIRED, SEC. 13(1), AND NO
REASON APPEARS WHY THEY COULD NOT HAVE DONE SO.  THERE ARE OTHER MODES
OF INDUCING THE COMMISSION TO PERFORM ITS DUTY THAN BY SETTING ASIDE
ITS ORDER PROHIBITING A PRACTICE WHICH PLAINLY VIOLATES SEC. 6(7),
BECAUSE IT HAS NOT MADE LIKE ORDERS AGAINST OTHER OFFENDERS.  THE
SUPPRESSION OF ABUSES RESULTING FROM VIOLATIONS OF SEC. 6(7) WOULD BE
RENDERED PRACTICALLY IMPOSSIBLE IF THE COMMISSION WERE REQUIRED TO
SUPPRESS ALL SIMULTANEOUSLY OR NONE.  SECTION 12(1) IMPOSES ON THE
COMMISSION THE DUTY TO ENFORCE THE PROVISIONS OF THE ACT.  THAT DUTY
UNDER SEC. 6(7) WOULD HARDLY BE PERFORMED IF THE COMMISSION WERE TO
DECLINE TO ENFORCE IT AGAINST ONE BECAUSE IT COULD NOT AT THE SAME TIME
ENFORCE IT AGAINST ALL.  REVERSED. 

FN1  THE COMMISSION EXAMINED THE CONDITIONS AT THE STALEY PLANT IN A
SUPPLEMENTAL REPORT RENDERED MAY 22, 1936, IN WHICH IT DIRECTED THE
CARRIERS, APPELLANTS HERE, TO ABANDON THE PRACTICE OF PAYING ALLOWANCES
TO STALEY FOR THE PERFORMANCE OF THE SPOTTING SERVICE.  A.E. STALEY
MFG. CO. TERMINAL ALLOWANCE, 215 I.C.C. 656.  AN ACTION TO ENJOIN
ENFORCEMENT OF THAT ORDER WAS VOLUNTARILY DISMISSED WITHOUT PREJUDICE
AS A RESULT OF THIS COURT'S DECISION IN THE TIN PLATE, PAN AMERICAN
PETROLEUM, AND OTHER CASES SUSTAINING SIMILAR ORDERS.  THEREUPON THE
PAYMENT OF ALLOWANCES WAS ABANDONED, AND THE CARRIERS ASSUMED THE
PERFORMANCE OF THE SPOTTING SERVICES, ESTABLISHING A CHARGE OF $2.27
PER CAR, LATER INCREASED TO $2.50.  BY SCHEDULES FILED TO BECOME
EFFECTIVE DECEMBER 15, 1939, THE CARRIERS PROPOSED TO CANCEL THE
SPOTTING CHARGE.  IN THE PRESENT PROCEEDING THE COMMISSION HAS REFUSED
TO APPROVE THE PROPOSED SCHEDULES, AND HAS LIKEWISE REFUSED, AFTER
HAVING REOPENED THE PROCEEDINGS IN STALEY MFG. CO. TERMINAL ALLOWANCE,
SUPRA, TO MODIFY ITS PRIOR ORDER.  245 I.C.C. 383. 
..END :









YAKUS V. UNITED STATES, 321 U.S. 414 


ARGUED JANUARY 7, 1944.  - DECIDED MARCH 27, 1944.  - 137 F.2D 850,
AFFIRMED. 


1.  THE EMERGENCY PRICE CONTROL ACT OF 1942, AS AMENDED, HELD NOT TO
INVOLVE AN UNCONSTITUTIONAL DELEGATION TO THE PRICE ADMINISTRATOR OF
THE LEGISLATIVE POWER OF CONGRESS TO CONTROL COMMODITY PRICES IN TIME
OF WAR.  P. 423. 

(A)  THE ACT, THE DECLARED PURPOSE OF WHICH IS TO PREVENT WARTIME
INFLATION, PROVIDES FOR THE ESTABLISHMENT OF AN OFFICE OF PRICE
ADMINISTRATION UNDER THE DIRECTION OF A PRICE ADMINISTRATOR APPOINTED
BY THE PRESIDENT.  THE ADMINISTRATOR IS AUTHORIZED, AFTER CONSULTATION
WITH REPRESENTATIVE MEMBERS OF THE INDUSTRY SO FAR AS PRACTICABLE, TO
PROMULGATE REGULATIONS FIXING PRICES OF COMMODITIES WHICH "IN HIS
JUDGMENT WILL BE GENERALLY FAIR AND EQUITABLE AND WILL EFFECTUATE THE
PURPOSES OF THIS ACT" WHEN, IN HIS JUDGMENT, THEIR PRICES "HAVE RISEN
OR THREATEN TO RISE TO AN EXTENT OR IN A MANNER INCONSISTENT WITH THE
PURPOSES OF THIS ACT."  THE ADMINISTRATOR IS DIRECTED IN FIXING PRICES
TO GIVE DUE CONSIDERATION, SO FAR AS PRACTICABLE, TO PRICES PREVAILING
DURING A DESIGNATED BASE PERIOD, AND TO MAKE ADJUSTMENTS FOR RELEVANT
FACTORS OF GENERAL APPLICABILITY.  P. 419 ET SEQ. 

(B)  THE ESSENTIALS OF THE LEGISLATIVE FUNCTION ARE PRESERVED WHEN
CONGRESS HAS SPECIFIED THE BASIC CONDITIONS OF FACT UPON WHOSE
EXISTENCE OR OCCURRENCE, ASCERTAINED FROM RELEVANT DATA BY A DESIGNATED
ADMINISTRATIVE AGENCY, IT DIRECTS THAT ITS STATUTORY COMMAND SHALL BE
EFFECTIVE.  IT IS NO OBJECTION THAT THE DETERMINATION OF FACTS AND THE
INFERENCES TO BE DRAWN FROM THEM IN THE LIGHT OF THE STATUTORY
STANDARDS AND DECLARATION OF POLICY CALL FOR THE EXERCISE OF JUDGMENT,
AND FOR THE FORMULATION OF SUBSIDIARY ADMINISTRATIVE POLICY WITHIN THE
PRESCRIBED STATUTORY FRAMEWORK.  P. 424. 

(C)  ACTING WITHIN ITS CONSTITUTIONAL POWER TO FIX PRICES, IT IS FOR
CONGRESS TO SAY WHETHER THE DATA ON THE BASIS OF WHICH PRICES ARE TO BE
FIXED ARE TO BE CONFINED WITHIN A NARROW OR A BROAD RANGE.  P. 425. 

(D)  CONGRESS IS NOT CONFINED TO THAT METHOD OF EXECUTING ITS POLICY
WHICH INVOLVES THE LEAST POSSIBLE DELEGATION OF DISCRETION TO
ADMINISTRATIVE OFFICERS.  P. 425. 

(E)  THE STANDARDS PRESCRIBED BY THE ACT, WITH THE AID OF THE
"STATEMENT OF CONSIDERATIONS" REQUIRED TO BE MADE BY THE ADMINISTRATOR,
ARE SUFFICIENTLY DEFINITE AND PRECISE TO ENABLE CONGRESS, THE COURTS
AND THE PUBLIC TO ASCERTAIN WHETHER THE ADMINISTRATOR, IN FIXING THE
DESIGNATED PRICES, HAS CONFORMED TO THOSE STANDARDS.  P. 426. 

2.  THE PROCEDURE PRESCRIBED BY SECS. 203 AND 204 OF THE EMERGENCY
PRICE CONTROL ACT FOR DETERMINING THE VALIDITY OF THE ADMINISTRATOR'S
PRICE REGULATIONS - BY PROTEST TO AND HEARING BEFORE THE ADMINISTRATOR,
WHOSE DETERMINATION MAY BE REVIEWED ON COMPLAINT TO THE EMERGENCY COURT
OF APPEALS AND BY THIS COURT ON CERTIORARI - IS EXCLUSIVE AND PRECLUDES
THE DEFENSE OF INVALIDITY OF THE REGULATION IN A CRIMINAL PROSECUTION
FOR ITS VIOLATION.  PP. 427, 429. 

3.  PETITIONERS, WHO HAVE NOT RESORTED TO THE PROCEDURE PRESCRIBED BY
CONGRESS, CAN EXCUSE THEIR FAILURE TO DO SO, AND CAN SHOW A DENIAL OF
CONSTITUTIONAL RIGHT, ONLY BY SHOWING THAT THAT PROCEDURE IS INCAPABLE
OF AFFORDING THEM THE DUE PROCESS OF LAW GUARANTEED BY THE FIFTH
AMENDMENT.  P. 434. 

4.  THE PROVISIONS OF THE EMERGENCY PRICE CONTROL ACT, CONSTRUED TO
DEPRIVE PETITIONERS OF OPPORTUNITY TO ATTACK THE VALIDITY OF A PRICE
REGULATION (ESTABLISHING MAXIMUM PRICES FOR THE SALE OF CERTAIN MEATS
AT WHOLESALE) IN A PROSECUTION FOR ITS VIOLATION, HELD NOT ON THEIR
FACE INCAPABLE OF AFFORDING DUE PROCESS OF LAW.  P. 435. 

(A)  PETITIONERS WERE NOT REQUIRED BY THE ACT, NOR BY ANY OTHER RULE
OF LAW, TO CONTINUE SELLING AT A LOSS.  P. 431. 

(B)  THE SIXTY DAYS' PERIOD ALLOWED FOR PROTEST TO THE ADMINISTRATOR
WAS NOT UNDULY SHORT IN VIEW OF THE POWER OF THE ADMINISTRATOR TO
EXTEND THE TIME FOR PRESENTATION OF EVIDENCE, AND THE RIGHT GIVEN BY
THE ACT TO APPLY TO THE EMERGENCY COURT OF APPEALS FOR LEAVE TO
INTRODUCE ANY EVIDENCE "WHICH COULD NOT REASONABLY" HAVE BEEN OFFERED
TO THE ADMINISTRATOR.  P. 435. 

(C)  SINCE THE ADMINISTRATOR'S REGULATIONS PROVIDE FOR A FULL ORAL
HEARING IN APPROPRIATE CASES, THE COURT DOES NOT CONSIDER, IN THE
ABSENCE OF ANY APPLICATION TO THE ADMINISTRATOR FOR SUCH A HEARING,
WHETHER THE DENIAL OR AN ORAL HEARING IN ANY PARTICULAR CASE WOULD BE A
DENIAL OF DUE PROCESS.  P. 436. 

(D)  IN THE ABSENCE OF ANY APPLICATION TO THE ADMINISTRATOR, IT CAN
NOT BE ASSUMED THAT HE WILL DENY DUE PROCESS TO ANY APPLICANT.  AND THE
EMERGENCY COURT OF APPEALS, AND THIS COURT UPON CERTIORARI, HAVE FULL
POWER TO CORRECT ANY DENIAL OF DUE PROCESS OR OTHER PROCEDURAL ERROR
THAT MAY OCCUR IN A PARTICULAR CASE.  PP. 434, 437. 

5.  UNDER THE CIRCUMSTANCES IN WHICH THE ACT WAS ADOPTED AND MUST BE
APPLIED, ITS DENIAL OF ANY JUDICIAL STAY PENDING DETERMINATION OF THE
VALIDITY OF A REGULATION DOES NOT DENY DUE PROCESS.  P. 437. 

(A)  THE STATUTE PROVIDES AN EXPEDITIOUS MEANS OF TESTING THE
VALIDITY OF A PRICE REGULATION WITHOUT NECESSARILY INCURRING ANY OF THE
PENALTIES PROVIDED BY THE ACT.  P. 438. 

(B)  THE DUE PROCESS CLAUSE IS NOT VIOLATED BY A STATUTORY DENIAL OF
A RIGHT TO A RESTRAINING ORDER OR INTERLOCUTORY INJUNCTION TO ONE WHO
HAS FAILED TO APPLY FOR AVAILABLE ADMINISTRATIVE RELIEF, NOT SHOWN TO
BE INADEQUATE, FROM THE OPERATION OF AN ADMINISTRATIVE REGULATION,
PENDING DETERMINATION OF ITS VALIDITY.  P. 439. 

(C)  THE AWARD OF AN INTERLOCUTORY INJUNCTION BY COURTS OF EQUITY IS
NOT A MATTER OF RIGHT, EVEN THOUGH IRREPARABLE INJURY MAY OTHERWISE
RESULT TO THE PLAINTIFF.  AND THE LEGISLATIVE FORMULATION OF WHAT WOULD
OTHERWISE BE A RULE OF JUDICIAL DISCRETION IS NOT A DENIAL OF DUE
PROCESS OR A USURPATION OF JUDICIAL FUNCTIONS.  PP. 440, 442. 

(D)  THE PUBLIC INTEREST MAY JUSTIFY LEGISLATIVE AUTHORIZATION OF
SUMMARY ACTION SUBJECT TO LATER JUDICIAL REVIEW OF ITS VALIDITY.  P.
442. 

6.  NO PRINCIPLE OF LAW OR PROVISION OF THE CONSTITUTION PRECLUDES
CONGRESS FROM MAKING CRIMINAL THE VIOLATION OF AN ADMINISTRATIVE
REGULATION, BY ONE WHO HAS FAILED TO AVAIL HIMSELF OF AN ADEQUATE
SEPARATE PROCEDURE FOR THE ADJUDICATION OF ITS VALIDITY, OR PRECLUDES
THE PRACTICE OF SPLITTING THE TRIAL FOR VIOLATIONS OF AN ADMINISTRATIVE
REGULATION BY COMMITTING THE DETERMINATION OF THE ISSUE OF ITS VALIDITY
TO THE AGENCY WHICH CREATED IT, AND THE ISSUE OF VIOLATION TO A COURT
WHICH IS GIVEN JURISDICTION TO PUNISH VIOLATIONS.  P. 444. 

7.  THE COURT DOES NOT DECIDE WHETHER ONE CHARGED WITH CRIMINAL
VIOLATION OF A DULY PROMULGATED PRICE REGULATION MAY DEFEND ON THE
GROUND THAT THE REGULATION IS UNCONSTITUTIONAL ON ITS FACE, OR WHETHER
ONE WHO IS FORCED TO TRIAL AND CONVICTED OF VIOLATION OF A REGULATION,
WHILE DILIGENTLY SEEKING DETERMINATION OF ITS VALIDITY BY THE STATUTORY
PROCEDURE, MAY THUS BE DEPRIVED OF THE DEFENSE THAT THE REGULATION IS
INVALID.  P. 446. 

8.  THE SEVENTH AMENDMENT'S GUARANTEE OF A JURY TRIAL IS INAPPLICABLE
TO A PROCEEDING WITHIN THE EQUITY JURISDICTION OF THE EMERGENCY COURT
OF APPEALS TO TEST THE VALIDITY OF A PRICE REGULATION.  P. 447. 

9.  IN THE PRESENT CRIMINAL PROCEEDING, THERE WAS NO DENIAL OF THE
RIGHT OF TRIAL BY JURY, GUARANTEED BY THE SIXTH AMENDMENT, TO A TRIAL
BY A JURY OF THE STATE AND DISTRICT WHERE THE CRIME WAS COMMITTED.  THE
QUESTION WHETHER PETITIONERS HAD COMMITTED THE CRIME CHARGED IN THE
INDICTMENT AND DEFINED BY CONGRESS, NAMELY, WHETHER THEY HAD VIOLATED
THE STATUTE BY WILLFUL DISOBEDIENCE OF A PRICE REGULATION PROMULGATED
BY THE ADMINISTRATOR, WAS PROPERLY SUBMITTED TO THE JURY.  P. 447. 

YAKUS V. UNITED STATES. 

NO. 374.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST
CIRCUIT* . 

*TOGETHER WITH NO. 375, ROTTENBERG ET AL. V. UNITED STATES, ALSO ON
WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

CERTIORARI, 320 U.S. 730, TO REVIEW THE AFFIRMANCE OF CONVICTIONS FOR
VIOLATIONS OF THE EMERGENCY PRICE CONTROL ACT. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE STONE, ANNOUNCED BY MR.
JUSTICE ROBERTS. 

THE QUESTIONS FOR OUR DECISION ARE:  (1) WHETHER THE EMERGENCY PRICE
CONTROL ACT OF JANUARY 30, 1942, 56 STAT. 23, 50 U.S.C. APP. SUPP. II,
SECS. 901 ET SEQ., AS AMENDED BY THE INFLATION CONTROL ACT OF OCTOBER
2, 1942, 56 STAT. 765, 50 U.S.C. APP. SUPP. II, SECS. 961 ET SEQ.,
INVOLVES AN UNCONSTITUTIONAL DELEGATION TO THE PRICE ADMINISTRATOR OF
THE LEGISLATIVE POWER OF CONGRESS TO CONTROL PRICES; (2) WHETHER SEC.
204(D) OF THE ACT WAS INTENDED TO PRECLUDE CONSIDERATION BY A DISTRICT
COURT OF THE VALIDITY OF A MAXIMUM PRICE REGULATION PROMULGATED BY THE
ADMINISTRATOR, AS A DEFENSE TO A CRIMINAL PROSECUTION FOR ITS
VIOLATION; (3) WHETHER THE EXCLUSIVE STATUTORY PROCEDURE SET UP BY
SECS. 203 AND 204 OF THE ACT FOR ADMINISTRATIVE AND JUDICIAL REVIEW OF
REGULATIONS, WITH THE ACCOMPANYING STAY PROVISIONS, PROVIDE A
SUFFICIENTLY ADEQUATE MEANS OF DETERMINING THE VALIDITY OF A PRICE
REGULATION TO MEET THE DEMANDS OF DUE PROCESS; AND (4) WHETHER, IN VIEW
OF THIS AVAILABLE METHOD OF REVIEW, SEC. 204(D) OF THE ACT, IF
CONSTRUED TO PRECLUDE CONSIDERATION OF THE VALIDITY OF THE REGULATION
AS A DEFENSE TO A PROSECUTION FOR VIOLATING IT, CONTRAVENES THE SIXTH
AMENDMENT, OR WORKS AN UNCONSTITUTIONAL LEGISLATIVE INTERFERENCE WITH
THE JUDICIAL POWER. 

PETITIONERS IN BOTH OF THESE CASES WERE TRIED AND CONVICTED BY THE
DISTRICT COURT FOR MASSACHUSETTS UPON SEVERAL COUNTS OF INDICTMENTS
CHARGING VIOLATION OF SECS. 4(A) AND 205(B) OF THE ACT BY THE WILLFUL
SALE OF WHOLESALE CUTS OF BEEF AT PRICES ABOVE THE MAXIMUM PRICES
PRESCRIBED BY SECS. 1364.451-1364.455 OF REVISED MAXIMUM PRICE
REGULATION NO. 169, 7 FED. REG. 10381 ET SEQ. PETITIONERS HAVE NOT
AVAILED THEMSELVES OF THE PROCEDURE SET UP BY SECS. 203 AND 204 BY
WHICH ANY PERSON SUBJECT TO A MAXIMUM PRICE REGULATION MAY TEST ITS
VALIDITY BY PROTEST TO AND HEARING BEFORE THE ADMINISTRATOR, WHOSE
DETERMINATION MAY BE REVIEWED ON COMPLAINT TO THE EMERGENCY COURT OF
APPEALS AND BY THIS COURT ON CERTIORARI, SEE LOCKERTY V. PHILLIPS, 319
U.S. 182.  WHEN THE INDICTMENTS WERE FOUND THE 60 DAYS' PERIOD ALLOWED
BY THE STATUTE FOR FILING PROTESTS HAD EXPIRED. 

IN THE COURSE OF THE TRIAL THE DISTRICT COURT OVERRULED OR DENIED
OFFERS OF PROOF, MOTIONS AND REQUESTS FOR RULINGS, RAISING VARIOUS
QUESTIONS AS TO THE VALIDITY OF THE ACT AND REGULATION, INCLUDING THOSE
PRESENTED BY THE PETITIONS FOR CERTIORARI.  IN PARTICULAR PETITIONERS
OFFERED EVIDENCE, WHICH THE DISTRICT COURT EXCLUDED AS IRRELEVANT, FOR
THE PURPOSE OF SHOWING THAT THE REGULATION DID NOT CONFORM TO THE
STANDARDS PRESCRIBED BY THE ACT AND THAT IT DEPRIVED PETITIONERS OF
PROPERTY WITHOUT THE DUE PROCESS OF LAW GUARANTEED BY THE FIFTH
AMENDMENT.  THEY SPECIFICALLY RAISED THE QUESTION RESERVED IN LOCKERTY
V. PHILLIPS, SUPRA, WHETHER THE VALIDITY OF A REGULATION MAY BE
CHALLENGED IN DEFENSE OF A PROSECUTION FOR ITS VIOLATION ALTHOUGH IT
HAD NOT BEEN TESTED BY THE PRESCRIBED ADMINISTRATIVE PROCEDURE AND
COMPLAINT TO THE EMERGENCY COURT OF APPEALS.  THE DISTRICT COURT
CONVICTED PETITIONERS UPON VERDICTS OF GUILTY.  THE CIRCUIT COURT OF
APPEALS FOR THE FIRST CIRCUIT AFFIRMED, 137 F.2D 850, AND WE GRANTED
CERTIORARI, 320 U.S. 730. 

                I. 

THE EMERGENCY PRICE CONTROL ACT PROVIDES FOR THE ESTABLISHMENT OF THE
OFFICE OF PRICE ADMINISTRATION UNDER THE DIRECTION OF A PRICE
ADMINISTRATOR APPOINTED BY THE PRESIDENT, AND SETS UP A COMPREHENSIVE
SCHEME FOR THE PROMULGATION BY THE ADMINISTRATOR OF REGULATIONS OR
ORDERS FIXING SUCH MAXIMUM PRICES OF COMMODITIES AND RENTS AS WILL
EFFECTUATE THE PURPOSES OF THE ACT AND CONFORM TO THE STANDARDS WHICH
IT PRESCRIBES.  THE ACT WAS ADOPTED AS A TEMPORARY WARTIME MEASURE, AND
PROVIDES IN SEC. 1(B) FOR ITS TERMINATION ON JUNE 30, 1943, UNLESS
SOONER TERMINATED BY PRESIDENTIAL PROCLAMATION OR CONCURRENT RESOLUTION
OF CONGRESS.  BY THE AMENDATORY ACT OF OCTOBER 2, 1942, IT WAS EXTENDED
TO JUNE 30, 1944. 

NATIONAL DEFENSE AND SECURITY AND NECESSARY TO THE EFFECTIVE
PROSECUTION OF THE PRESENT WAR," AND THAT ITS PURPOSES ARE:  "TO
STABILIZE PRICES AND TO PREVENT SPECULATIVE, UNWARRANTED, AND ABNORMAL
INCREASES IN PRICES AND RENTS; TO ELIMINATE AND PREVENT PROFITEERING,
HOARDING, MANIPULATION, SPECULATION, AND OTHER DISRUPTIVE PRACTICES
RESULTING FROM ABNORMAL MARKET CONDITIONS OR SCARCITIES CAUSED BY OR
CONTRIBUTING TO THE NATIONAL EMERGENCY; TO ASSURE THAT DEFENSE
APPROPRIATIONS ARE NOT DISSIPATED BY EXCESSIVE PRICES; TO PROTECT
PERSONS WITH RELATIVELY FIXED AND LIMITED INCOMES, CONSUMERS, WAGE
EARNERS, INVESTORS, AND PERSONS DEPENDENT ON LIFE INSURANCE, ANNUITIES,
AND PENSIONS, FROM UNDUE IMPAIRMENT OF THEIR STANDARD OF LIVING; TO
PREVENT HARDSHIPS TO PERSONS ENGAGED IN BUSINESS,  ... AND TO THE
FEDERAL, STATE, AND LOCAL GOVERNMENTS, WHICH WOULD RESULT FROM ABNORMAL
INCREASES IN PRICES; TO ASSIST IN SECURING ADEQUATE PRODUCTION OF
COMMODITIES AND FACILITIES; TO PREVENT A POST EMERGENCY COLLAPSE OF
VALUES; ...  " 

THE STANDARDS WHICH ARE TO GUIDE THE ADMINISTRATOR'S EXERCISE OF HIS
AUTHORITY TO FIX PRICES, SO FAR AS NOW RELEVANT, ARE PRESCRIBED BY SEC.
2(A) AND BY SEC. 1 OF THE AMENDATORY ACT OF OCTOBER 2, 1942, AND
EXECUTIVE ORDER 9250, PROMULGATED UNDER IT.  7 FED. REG. 7871.  BY SEC.
2(A) THE ADMINISTRATOR IS AUTHORIZED, AFTER CONSULTATION WITH
REPRESENTATIVE MEMBERS OF THE INDUSTRY SO FAR AS PRACTICABLE, TO
PROMULGATE REGULATIONS FIXING PRICES OF COMMODITIES WHICH "IN HIS
JUDGMENT WILL BE GENERALLY FAIR AND EQUITABLE AND WILL EFFECTUATE THE
PURPOSES OF THIS ACT" WHEN, IN HIS JUDGMENT, THEIR PRICES "HAVE RISEN
OR THREATEN TO RISE TO AN EXTENT OR IN A MANNER INCONSISTENT WITH THE
PURPOSES OF THIS ACT." 

THE SECTION ALSO DIRECTS THAT "SO FAR AS PRACTICABLE, IN ESTABLISHING
ANY MAXIMUM PRICE, THE ADMINISTRATOR SHALL ASCERTAIN AND GIVE DUE
CONSIDERATION TO THE PRICES PREVAILING BETWEEN OCTOBER 1 AND OCTOBER
15, 1941(OR IF, IN THE CASE OF ANY COMMODITY, THERE ARE NO PREVAILING
PRICES BETWEEN SUCH DATES, OR THE PREVAILING PRICES BETWEEN SUCH DATES
ARE NOT GENERALLY REPRESENTATIVE BECAUSE OF ABNORMAL OR SEASONAL MARKET
CONDITIONS OR OTHER CAUSE, THEN TO THE PRICES PREVAILING DURING THE
NEAREST TWO-WEEK PERIOD IN WHICH, IN THE JUDGMENT OF THE ADMINISTRATOR,
THE PRICES FOR SUCH COMMODITY ARE GENERALLY REPRESENTATIVE)  ...  AND
SHALL MAKE ADJUSTMENTS FOR SUCH RELEVANT FACTORS AS HE MAY DETERMINE
AND DEEM TO BE OF GENERAL APPLICABILITY, INCLUDING  ...  SPECULATIVE
FLUCTUATIONS, GENERAL INCREASES OR DECREASES IN COSTS OF PRODUCTION,
DISTRIBUTION, AND TRANSPORTATION, AND GENERAL INCREASES OR DECREASES IN
PROFITS EARNED BY SELLERS OF THE COMMODITY OR COMMODITIES, DURING AND
SUBSEQUENT TO THE YEAR ENDED OCTOBER 1, 1941." 

BY THE ACT OF OCTOBER 2, 1942, THE PRESIDENT IS DIRECTED TO STABILIZE
PRICES, WAGES AND SALARIES "SO FAR AS PRACTICABLE" ON THE BASIS OF THE
LEVELS WHICH EXISTED ON SEPTEMBER 15, 1942, EXCEPT AS OTHERWISE
PROVIDED IN THE ACT.  BY TITLE I, SEC. 4 OF EXECUTIVE ORDER NO. 9250,
HE HAS DIRECTED "ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT" "TO
STABILIZE THE COST OF LIVING IN ACCORDANCE WITH THE ACT OF OCTOBER 2,
1942."  FN1 

REVISED MAXIMUM PRICE REGULATION NO. 169 WAS ISSUED DECEMBER 10,
1942, UNDER AUTHORITY OF THE EMERGENCY PRICE CONTROL ACT AS AMENDED AND
EXECUTIVE ORDER NO. 9250.  THE REGULATION ESTABLISHED SPECIFIC MAXIMUM
PRICES FOR THE SALE AT WHOLESALE OF SPECIFIED CUTS OF BEEF AND VEAL. 
AS IS REQUIRED BY SEC. 2(A) OF THE ACT, IT WAS ACCOMPANIED BY A
"STATEMENT OF THE CONSIDERATIONS INVOLVED" IN PRESCRIBING IT.  FROM THE
PREAMBLE TO THE REGULATION AND FROM THE STATEMENT OF CONSIDERATIONS
ACCOMPANYING IT, IT APPEARS THAT THE PRICES FIXED FOR SALES AT
WHOLESALE WERE SLIGHTLY IN EXCESS OF THOSE PREVAILING BETWEEN MARCH 16
AND MARCH 28, 1942,  FN2  AND APPROXIMATED THOSE PREVAILING ON
SEPTEMBER 15, 1942.  FINDINGS THAT THE REGULATION WAS NECESSARY, THAT
THE PRICES WHICH IT FIXED WERE FAIR AND EQUITABLE, AND THAT IT
OTHERWISE CONFORMED TO THE STANDARDS PRESCRIBED BY THE ACT, APPEAR IN
THE STATEMENT OF CONSIDERATIONS. 

THAT CONGRESS HAS CONSTITUTIONAL AUTHORITY TO PRESCRIBE COMMODITY
PRICES AS A WAR EMERGENCY MEASURE, AND THAT THE ACT WAS ADOPTED BY
CONGRESS IN THE EXERCISE OF THAT POWER, ARE NOT QUESTIONED HERE, AND
NEED NOT NOW BE CONSIDERED SAVE AS THEY HAVE A BEARING ON THE
PROCEDURAL FEATURES OF THE ACT LATER TO BE CONSIDERED WHICH ARE
CHALLENGED ON CONSTITUTIONAL GROUNDS. 

CONGRESS ENACTED THE EMERGENCY PRICE CONTROL ACT IN PURSUANCE OF A
DEFINED POLICY AND REQUIRED THAT THE PRICES FIXED BY THE ADMINISTRATOR
SHOULD FURTHER THAT POLICY AND CONFORM TO STANDARDS PRESCRIBED BY THE
ACT.  THE BOUNDARIES OF THE FIELD OF THE ADMINISTRATOR'S PERMISSIBLE
ACTION ARE MARKED BY THE STATUTE.  IT DIRECTS THAT THE PRICES FIXED
SHALL EFFECTUATE THE DECLARED POLICY OF THE ACT TO STABILIZE COMMODITY
PRICES SO AS TO PREVENT WARTIME INFLATION AND ITS ENUMERATED DISRUPTIVE
CAUSES AND EFFECTS.  IN ADDITION THE PRICES ESTABLISHED MUST BE FAIR
AND EQUITABLE, AND IN FIXING THEM THE ADMINISTRATOR IS DIRECTED TO GIVE
DUE CONSIDERATION, SO FAR AS PRACTICABLE, TO PREVAILING PRICES DURING
THE DESIGNATED BASE PERIOD, WITH PRESCRIBED ADMINISTRATIVE ADJUSTMENTS
TO COMPENSATE FOR ENUMERATED DISTURBING FACTORS AFFECTING PRICES.  IN
SHORT THE PURPOSES OF THE ACT SPECIFIED IN SEC. 1 DENOTE THE OBJECTIVE
TO BE SOUGHT BY THE ADMINISTRATOR IN FIXING PRICES - THE PREVENTION OF
INFLATION AND ITS ENUMERATED CONSEQUENCES.  THE STANDARDS SET OUT IN
SEC. 2 DEFINE THE BOUNDARIES WITHIN WHICH PRICES HAVING THAT PURPOSE
MUST BE FIXED.  IT IS ENOUGH TO SATISFY THE STATUTORY REQUIREMENTS THAT
THE ADMINISTRATOR FINDS THAT THE PRICES FIXED WILL TEND TO ACHIEVE THAT
OBJECTIVE AND WILL CONFORM TO THOSE STANDARDS, AND THAT THE COURTS IN
AN APPROPRIATE PROCEEDING CAN SEE THAT SUBSTANTIAL BASIS FOR THOSE
FINDINGS IS NOT WANTING. 

THE ACT IS THUS AN EXERCISE BY CONGRESS OF ITS LEGISLATIVE POWER.  IN
IT CONGRESS HAS STATED THE LEGISLATIVE OBJECTIVE, HAS PRESCRIBED THE
METHOD OF ACHIEVING THAT OBJECTIVE - MAXIMUM PRICE FIXING - , AND HAS
LAID DOWN STANDARDS TO GUIDE THE ADMINISTRATIVE DETERMINATION OF BOTH
THE OCCASIONS FOR THE EXERCISE OF THE PRICE-FIXING POWER, AND THE
PARTICULAR PRICES TO BE ESTABLISHED.  COMPARE FIELD V. CLARK, 143 U.S.
649; HAMPTON & CO. V. UNITED STATES, 276 U.S. 394; CURRIN V. WALLACE,
306 U.S. 1; MULFORD V. SMITH, 307 U.S. 38; UNITED STATES V. ROCK ROYAL
CO-OP., 307 U.S. 533; SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S.
381; OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126; NATIONAL
BROADCASTING CO. V. UNITED STATES, 319 U.S. 190; HIRABAYASHI V. UNITED
STATES, 320 U.S. 81. 

THE ACT IS UNLIKE THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16,
1933, 48 STAT. 195, CONSIDERED IN SCHECHTER CORP. V. UNITED STATES, 295
U.S. 495, WHICH PROCLAIMED IN THE BROADEST TERMS ITS PURPOSE "TO
REHABILITATE INDUSTRY AND TO CONSERVE NATURAL RESOURCES."  IT
PRESCRIBED NO METHOD OF ATTAINING THAT END SAVE BY THE ESTABLISHMENT OF
CODES OF FAIR COMPETITION, THE NATURE OF WHOSE PERMISSIBLE PROVISIONS
WAS LEFT UNDEFINED.  IT PROVIDED NO STANDARDS TO WHICH THOSE CODES WERE
TO CONFORM.  THE FUNCTION OF FORMULATING THE CODES WAS DELEGATED, NOT
TO A PUBLIC OFFICIAL RESPONSIBLE TO CONGRESS OR THE EXECUTIVE, BUT TO
PRIVATE INDIVIDUALS ENGAGED IN THE INDUSTRIES TO BE REGULATED.  COMPARE
SUNSHINE COAL CO. V. ADKINS, SUPRA, 399. 

THE CONSTITUTION AS A CONTINUOUSLY OPERATIVE CHARTER OF GOVERNMENT
DOES NOT DEMAND THE IMPOSSIBLE OR THE IMPRACTICABLE.  IT DOES NOT
REQUIRE THAT CONGRESS FIND FOR ITSELF EVERY FACT UPON WHICH IT DESIRES
TO BASE LEGISLATIVE ACTION OR THAT IT MAKE FOR ITSELF DETAILED
DETERMINATIONS WHICH IT HAS DECLARED TO BE PREREQUISITE TO THE
APPLICATION OF THE LEGISLATIVE POLICY TO PARTICULAR FACTS AND
CIRCUMSTANCES IMPOSSIBLE FOR CONGRESS ITSELF PROPERLY TO INVESTIGATE. 
THE ESSENTIALS OF THE LEGISLATIVE FUNCTION ARE THE DETERMINATION OF THE
LEGISLATIVE POLICY AND ITS FORMULATION AND PROMULGATION AS A DEFINED
AND BINDING RULE OF CONDUCT - HERE THE RULE, WITH PENAL SANCTIONS, THAT
PRICES SHALL NOT BE GREATER THAN THOSE FIXED BY MAXIMUM PRICE
REGULATIONS WHICH CONFORM TO STANDARDS AND WILL TEND TO FURTHER THE
POLICY WHICH CONGRESS HAS ESTABLISHED.  THESE ESSENTIALS ARE PRESERVED
WHEN CONGRESS HAS SPECIFIED THE BASIC CONDITIONS OF FACT UPON WHOSE
EXISTENCE OR OCCURRENCE, ASCERTAINED FROM RELEVANT DATA BY A DESIGNATED
ADMINISTRATIVE AGENCY, IT DIRECTS THAT ITS STATUTORY COMMAND SHALL BE
EFFECTIVE.  IT IS NO OBJECTION THAT THE DETERMINATION OF FACTS AND THE
INFERENCES TO BE DRAWN FROM THEM IN THE LIGHT OF THE STATUTORY
STANDARDS AND DECLARATION OF POLICY CALL FOR THE EXERCISE OF JUDGMENT,
AND FOR THE FORMULATION OF SUBSIDIARY ADMINISTRATIVE POLICY WITHIN THE
PRESCRIBED STATUTORY FRAMEWORK.  SEE OPP COTTON MILLS V. ADMINISTRATOR,
SUPRA, 145-6, AND CASES CITED.    NOR DOES THE DOCTRINE OF SEPARATION
OF POWERS DENY TO CONGRESS POWER TO DIRECT THAT AN ADMINISTRATIVE
OFFICER PROPERLY DESIGNATED FOR THAT PURPOSE HAVE AMPLE LATITUDE WITHIN
WHICH HE IS TO ASCERTAIN THE CONDITIONS WHICH CONGRESS HAS MADE
PREREQUISITE TO THE OPERATION OF ITS LEGISLATIVE COMMAND.  ACTING
WITHIN ITS CONSTITUTIONAL POWER TO FIX PRICES IT IS FOR CONGRESS TO SAY
WHETHER THE DATA ON THE BASIS OF WHICH PRICES ARE TO BE FIXED ARE TO BE
CONFINED WITHIN A NARROW OR A BROAD RANGE.  IN EITHER CASE THE ONLY
CONCERN OF COURTS IS TO ASCERTAIN WHETHER THE WILL OF CONGRESS HAS BEEN
OBEYED.  THIS DEPENDS NOT UPON THE BREADTH OF THE DEFINITION OF THE
FACTS OR CONDITIONS WHICH THE ADMINISTRATIVE OFFICER IS TO FIND BUT
UPON THE DETERMINATION WHETHER THE DEFINITION SUFFICIENTLY MARKS THE
FIELD WITHIN WHICH THE ADMINISTRATOR IS TO ACT SO THAT IT MAY BE KNOWN
WHETHER HE HAS KEPT WITHIN IT IN COMPLIANCE WITH THE LEGISLATIVE WILL. 

AS WE HAVE SAID, "THE CONSTITUTION HAS NEVER BEEN REGARDED AS DENYING
TO THE CONGRESS THE NECESSARY RESOURCES OF FLEXIBILITY AND PRACTICALITY
...  TO PERFORM ITS FUNCTION."  CURRIN V. WALLACE, SUPRA, 15.  HENCE
IT IS IRRELEVANT THAT CONGRESS MIGHT ITSELF HAVE PRESCRIBED THE MAXIMUM
PRICES OR HAVE PROVIDED A MORE RIGID STANDARD BY WHICH THEY ARE TO BE
FIXED; FOR EXAMPLE, THAT ALL PRICES SHOULD BE FROZEN AT THE LEVELS
OBTAINING DURING A CERTAIN PERIOD OR ON A CERTAIN DATE.  SEE UNION
BRIDGE CO. V. UNITED STATES, 204 U.S. 364, 386.  CONGRESS IS NOT
CONFINED TO THAT METHOD OF EXECUTING ITS POLICY WHICH INVOLVES THE
LEAST POSSIBLE DELEGATION OF DISCRETION TO ADMINISTRATIVE OFFICERS. 
COMPARE M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 413 ET SEQ. IT IS FREE TO
AVOID THE RIGIDITY OF SUCH A SYSTEM, WHICH MIGHT WELL RESULT IN SERIOUS
HARDSHIP, AND TO CHOOSE INSTEAD THE FLEXIBILITY ATTAINABLE BY THE USE
OF LESS RESTRICTIVE STANDARDS.  CF. HAMPTON & CO. V. UNITED STATES,
SUPRA, 408, 409.  ONLY IF WE COULD SAY THAT THERE IS AN ABSENCE OF
STANDARDS FOR THE GUIDANCE OF THE ADMINISTRATOR'S ACTION, SO THAT IT
WOULD BE IMPOSSIBLE IN A PROPER PROCEEDING TO ASCERTAIN WHETHER THE
WILL OF CONGRESS HAS BEEN OBEYED, WOULD WE BE JUSTIFIED IN OVERRIDING
ITS CHOICE OF MEANS FOR EFFECTING ITS DECLARED PURPOSE OF PREVENTING
INFLATION. 

THE STANDARDS PRESCRIBED BY THE PRESENT ACT, WITH THE AID OF THE
"STATEMENT OF CONSIDERATIONS" REQUIRED TO BE MADE BY THE ADMINISTRATOR,
ARE SUFFICIENTLY DEFINITE AND PRECISE TO ENABLE CONGRESS, THE COURTS
AND THE PUBLIC TO ASCERTAIN WHETHER THE ADMINISTRATOR, IN FIXING THE
DESIGNATED PRICES, HAS CONFORMED TO THOSE STANDARDS.  COMPARE
HIRABAYASHI V. UNITED STATES, SUPRA, 104.  HENCE WE ARE UNABLE TO FIND
IN THEM AN UNAUTHORIZED DELEGATION OF LEGISLATIVE POWER.  THE AUTHORITY
TO FIX PRICES ONLY WHEN PRICES HAVE RISEN OR THREATEN TO RISE TO AN
EXTENT OR IN A MANNER INCONSISTENT WITH THE PURPOSE OF THE ACT TO
PREVENT INFLATION IS NO BROADER THAN THE AUTHORITY TO FIX MAXIMUM
PRICES WHEN DEEMED NECESSARY TO PROTECT CONSUMERS AGAINST UNREASONABLY
HIGH PRICES, SUSTAINED IN SUNSHINE ANTHRACITE COAL CO. V. ADKINS,
SUPRA, OR THE AUTHORITY TO TAKE POSSESSION OF AND OPERATE TELEGRAPH
LINES WHENEVER DEEMED NECESSARY FOR THE NATIONAL SECURITY OR DEFENSE,
UPHELD IN DAKOTA CENTRAL TEL. CO. V. SOUTH DAKOTA, 250 U.S. 163; OR THE
AUTHORITY TO SUSPEND TARIFF PROVISIONS UPON FINDINGS THAT THE DUTIES
IMPOSED BY A FOREIGN STATE ARE "RECIPROCALLY UNEQUAL AND UNREASONABLE,"
HELD VALID IN FIELD V. CLARK, SUPRA. 

THE DIRECTIONS THAT THE PRICES FIXED SHALL BE FAIR AND EQUITABLE,
THAT IN ADDITION THEY SHALL TEND TO PROMOTE THE PURPOSES OF THE ACT,
AND THAT IN PROMULGATING THEM CONSIDERATION SHALL BE GIVEN TO PRICES
PREVAILING IN A STATED BASE PERIOD, CONFER NO GREATER REACH FOR
ADMINISTRATIVE DETERMINATION THAN THE POWER TO FIX JUST AND REASONABLE
RATES, SEE SUNSHINE COAL CO. V. ADKINS, SUPRA, AND CASES CITED; OR THE
POWER TO APPROVE CONSOLIDATIONS IN THE "PUBLIC INTEREST," SUSTAINED IN
NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12, 24
5(COMPARE UNITED STATES V. LOWDEN, 308 U.S. 225); OR THE POWER TO
REGULATE RADIO STATIONS ENGAGED IN CHAIN BROADCASTING "AS PUBLIC
INTEREST, CONVENIENCE OR NECESSITY REQUIRES," UPHELD IN NATIONAL
BROADCASTING CO. V. UNITED STATES, SUPRA, 225-6; OR THE POWER TO
PROHIBIT "UNFAIR METHODS OF COMPETITION" NOT DEFINED OR FORBIDDEN BY
THE COMMON LAW, FEDERAL TRADE COMMISSION V. KEPPEL & BRO., 291 U.S.
304; OR THE DIRECTION THAT IN ALLOTING MARKETING QUOTAS AMONG STATES
AND PRODUCERS DUE CONSIDERATION BE GIVEN TO A VARIETY OF ECONOMIC
FACTORS, SUSTAINED IN MULFORD V. SMITH, SUPRA, 48-9; OR THE SIMILAR
DIRECTION THAT IN ADJUSTING TARIFFS TO MEET DIFFERENCES IN COSTS OF
PRODUCTION THE PRESIDENT "TAKE INTO CONSIDERATION" "IN SO FAR AS HE
FINDS IT PRACTICABLE" A VARIETY OF ECONOMIC MATTERS, SUSTAINED IN
HAMPTON & CO. V. UNITED STATES, SUPRA; OR THE SIMILAR AUTHORITY, IN
MAKING CLASSIFICATIONS WITHIN AN INDUSTRY, TO CONSIDER VARIOUS NAMED
AND UNNAMED "RELEVANT FACTORS" AND DETERMINE THE RESPECTIVE WEIGHTS
ATTRIBUTABLE TO EACH, HELD VALID IN OPP COTTON MILLS V. ADMINISTRATOR,
SUPRA.

                                 II. 

WE CONSIDER NEXT THE QUESTION WHETHER THE PROCEDURE WHICH CONGRESS
HAS ESTABLISHED FOR DETERMINING THE VALIDITY OF THE ADMINISTRATOR'S
REGULATIONS IS EXCLUSIVE SO AS TO PRECLUDE THE DEFENSE OF INVALIDITY OF
THE REGULATION IN THIS CRIMINAL PROSECUTION FOR ITS VIOLATION UNDER
SECS. 4(A) AND 205(B).  SECTION 203(A) SETS UP A PROCEDURE BY WHICH
"ANY PERSON SUBJECT TO ANY PROVISION OF A REGULATION OR ORDER" MAY
WITHIN SIXTY DAYS AFTER IT IS ISSUED "FILE A PROTEST SPECIFICALLY
SETTING FORTH OBJECTIONS TO ANY SUCH PROVISION AND AFFIDAVITS OR OTHER
WRITTEN EVIDENCE IN SUPPORT OF SUCH OBJECTIONS."  HE MAY SIMILARLY
PROTEST LATER, ON GROUNDS ARISING AFTER THE EXPIRATION OF THE ORIGINAL
SIXTY DAYS.  THE SUBSECTION DIRECTS THAT WITHIN A REASONABLE TIME AND
IN NO EVENT MORE THAN THIRTY DAYS AFTER THE FILING OF A PROTEST OR
NINETY DAYS AFTER THE ISSUE OF THE REGULATION PROTESTED, WHICHEVER IS
LATER, "THE ADMINISTRATOR SHALL EITHER GRANT OR DENY SUCH PROTEST IN
WHOLE OR IN PART, NOTICE SUCH PROTEST FOR HEARING, OR PROVIDE AN
OPPORTUNITY TO PRESENT FURTHER EVIDENCE IN CONNECTION THEREWITH.  IN
THE EVENT THAT THE ADMINISTRATOR DENIES ANY SUCH PROTEST IN WHOLE OR IN
PART, HE SHALL INFORM THE PROTESTANT OF THE GROUNDS UPON WHICH SUCH
DECISION IS BASED, AND OF ANY ECONOMIC DATA AND OTHER FACTS OF WHICH
THE ADMINISTRATOR HAS TAKEN OFFICIAL NOTICE." 

APPEALS CONSISTING OF UNITED STATES DISTRICT OR CIRCUIT JUDGES
DESIGNATED BY THE CHIEF JUSTICE OF THE UNITED STATES.  SECTION 204(A)
AUTHORIZES ANY PERSON AGGRIEVED BY THE DENIAL OR PARTIAL DENIAL OF HIS
PROTEST TO FILE A COMPLAINT WITH THE EMERGENCY COURT OF APPEALS WITHIN
THIRTY DAYS AFTER THE DENIAL, PRAYING THAT THE REGULATION, ORDER OR
PRICE SCHEDULE PROTESTED BE ENJOINED OR SET ASIDE IN WHOLE OR IN PART. 
THE COURT MAY ISSUE SUCH AN INJUNCTION ONLY IF IT FINDS THAT THE
REGULATION, ORDER OR PRICE SCHEDULE "IS NOT IN ACCORDANCE WITH LAW, OR
IS ARBITRARY OR CAPRICIOUS."  (SUBSECTION (B).)  IT IS DENIED POWER TO
ISSUE A TEMPORARY RESTRAINING ORDER OR INTERLOCUTORY DECREE. 
(SUBSECTION (C).)  THE EFFECTIVENESS OF ANY PERMANENT INJUNCTION IT MAY
ISSUE IS POSTPONED FOR THIRTY DAYS, AND IF REVIEW BY THIS COURT IS
SOUGHT UPON WRIT OF CERTIORARI, AS AUTHORIZED BY SUBSECTION (D), ITS
EFFECTIVENESS IS FURTHER POSTPONED UNTIL FINAL DISPOSITION OF THE CASE
BY THIS COURT BY DENIAL OF CERTIORARI OR DECISION UPON THE MERITS. 
(SUBSECTION (B).) 

SUPREME COURT UPON REVIEW OF JUDGMENTS AND ORDERS OF THE EMERGENCY
COURT OF APPEALS, SHALL HAVE EXCLUSIVE JURISDICTION TO DETERMINE THE
VALIDITY OF ANY REGULATION OR ORDER ISSUED UNDER SECTION 2, OF ANY
PRICE SCHEDULE EFFECTIVE IN ACCORDANCE WITH THE PROVISIONS OF SECTION
206, AND OF ANY PROVISION OF ANY SUCH REGULATION, ORDER, OR PRICE
SCHEDULE.  EXCEPT AS PROVIDED IN THIS SECTION, NO COURT, FEDERAL,
STATE, OR TERRITORIAL, SHALL HAVE JURISDICTION OR POWER TO CONSIDER THE
VALIDITY OF ANY SUCH REGULATION, ORDER, OR PRICE SCHEDULE, OR TO STAY,
RESTRAIN, ENJOIN, OR SET ASIDE, IN WHOLE OR IN PART, ANY PROVISION OF
THIS ACT AUTHORIZING THE ISSUANCE OF SUCH REGULATIONS OR ORDERS, OR
MAKING EFFECTIVE ANY SUCH PRICE SCHEDULE, OR ANY PROVISION OF ANY SUCH
REGULATION, ORDER, OR PRICE SCHEDULE, OR TO RESTRAIN OR ENJOIN THE
ENFORCEMENT OF ANY SUCH PROVISION." 

IN LOCKERTY V. PHILLIPS, SUPRA, WE HELD THAT THESE PROVISIONS
CONFERRED ON THE EMERGENCY COURT OF APPEALS, SUBJECT TO REVIEW BY THIS
COURT, EXCLUSIVE EQUITY JURISDICTION TO RESTRAIN ENFORCEMENT OF PRICE
REGULATIONS OF THE ADMINISTRATOR AND THAT THEY WITHDREW SUCH
JURISDICTION FROM ALL OTHER COURTS.  THIS WAS ACCOMPLISHED BY THE
EXERCISE OF THE CONSTITUTIONAL POWER OF CONGRESS TO PRESCRIBE THE
JURISDICTION OF INFERIOR FEDERAL COURTS, AND THE JURISDICTION OF ALL
STATE COURTS TO DETERMINE FEDERAL QUESTIONS, AND TO VEST THAT
JURISDICTION IN A SINGLE COURT, THE EMERGENCY COURT OF APPEALS. 

THE CONSIDERATIONS WHICH LED US TO THAT CONCLUSION WITH RESPECT TO
THE EQUITY JURISDICTION OF THE DISTRICT COURT, LEAD TO THE LIKE
CONCLUSION AS TO ITS POWER TO CONSIDER THE VALIDITY OF A PRICE
REGULATION AS A DEFENSE TO A CRIMINAL PROSECUTION FOR ITS VIOLATION. 
THE PROVISIONS OF SEC. 204(D), CONFERRING UPON THE EMERGENCY COURT OF
APPEALS AND THIS COURT "EXCLUSIVE JURISDICTION TO DETERMINE THE
VALIDITY OF ANY REGULATION OR ORDER," COUPLED WITH THE PROVISION THAT
"NO COURT, FEDERAL, STATE OR TERRITORIAL, SHALL HAVE JURISDICTION OR
POWER TO CONSIDER THE VALIDITY OF ANY SUCH REGULATION," ARE BROAD
ENOUGH IN TERMS TO DEPRIVE THE DISTRICT COURT OF POWER TO CONSIDER THE
VALIDITY OF THE ADMINISTRATOR'S REGULATION OR ORDER AS A DEFENSE TO A
CRIMINAL PROSECUTION FOR ITS VIOLATION. 

THAT SUCH WAS THE INTENTION OF CONGRESS APPEARS FROM THE REPORT OF
THE SENATE COMMITTEE ON BANKING AND CURRENCY, RECOMMENDING THE ADOPTION
OF THE BILL WHICH CONTAINED THE PROVISIONS OF SEC. 204(D).  AFTER
POINTING OUT THAT THE BILL PROVIDED FOR EXCLUSIVE JURISDICTION OF THE
EMERGENCY COURT AND THE SUPREME COURT TO DETERMINE THE VALIDITY OF
REGULATIONS OR ORDERS ISSUED UNDER SEC. 2, THE COMMITTEE SAID:  "THE
COURTS IN WHICH CRIMINAL OR CIVIL ENFORCEMENT PROCEEDINGS ARE BROUGHT
HAVE JURISDICTION, CONCURRENTLY WITH THE EMERGENCY COURT, TO DETERMINE
THE CONSTITUTIONAL VALIDITY OF THE STATUTE ITSELF."  SEN. REP. 931,
77TH CONG., 2D SESS., P. 25.  THAT THE COMMITTEE, IN MAKING THIS
STATEMENT, INTENDED TO DISTINGUISH BETWEEN THE VALIDITY OF THE STATUTE
AND THAT OF A REGULATION, AND TO PERMIT CONSIDERATION ONLY OF THE
FORMER IN DEFENSE TO A CRIMINAL PROSECUTION, IS FURTHER BORNE OUT BY
THE FACT THAT THE BILL AS INTRODUCED IN THE HOUSE HAD PROVIDED THAT THE
EMERGENCY COURT OF APPEALS SHOULD HAVE EXCLUSIVE JURISDICTION TO
DETERMINE THE VALIDITY OF THE PROVISIONS OF THE ACT AUTHORIZING PRICE
REGULATIONS, AS WELL AS OF THE REGULATIONS THEMSELVES.  H.R. 5479, 77TH
CONG., 1ST SESS., PRINTED IN HEARINGS BEFORE COMMITTEE ON BANKING AND
CURRENCY, HOUSE OF REPRESENTATIVES, 77TH CONG., 2D SESS., ON H.R. 5479,
PP. 4, 7-8. 

CONGRESS, IN THUS AUTHORIZING CONSIDERATION BY THE DISTRICT COURT OF
THE VALIDITY OF THE ACT ALONE, GAVE CLEAR INDICATION THAT THE VALIDITY
OF THE ADMINISTRATOR'S REGULATIONS OR ORDERS SHOULD NOT BE SUBJECT TO
ATTACK IN CRIMINAL PROSECUTIONS FOR THEIR VIOLATION, AT LEAST BEFORE
THEIR INVALIDITY HAD BEEN ADJUDICATED BY RECOURSE TO THE PROTEST
PROCEDURE PRESCRIBED BY THE STATUTE.  SUCH WE CONCLUDE IS THE CORRECT
CONSTRUCTION OF THE ACT. 

                                 III. 

WE COME TO THE QUESTION WHETHER THE PROVISIONS OF THE ACT, SO
CONSTRUED AS TO DEPRIVE PETITIONERS OF OPPORTUNITY TO ATTACK THE
REGULATION IN A PROSECUTION FOR ITS VIOLATION, DEPRIVE THEM OF THE DUE
PROCESS OF LAW GUARANTEED BY THE FIFTH AMENDMENT.  AT THE TRIAL,
PETITIONERS OFFERED TO PROVE THAT THE REGULATION WOULD COMPEL THEM TO
SELL BEEF AT SUCH PRICES AS WOULD RENDER IT IMPOSSIBLE FOR WHOLESALERS
SUCH AS THEY ARE, NO MATTER HOW EFFICIENT, TO CONDUCT THEIR BUSINESS
OTHER THAN AT A LOSS.  SECTION 4(D) DECLARES THAT "NOTHING IN THIS ACT
SHALL BE CONSTRUED TO REQUIRE ANY PERSON TO SELL ANY COMMODITY  ...  "
PETITIONERS WERE THEREFORE NOT REQUIRED BY THE ACT, NOR SO FAR AS
APPEARS BY ANY OTHER RULE OF LAW, TO CONTINUE SELLING MEAT AT WHOLESALE
IF THEY COULD NOT DO SO WITHOUT LOSS.  BUT THEY ARGUE THAT TO IMPOSE ON
THEM THE CHOICE EITHER OF REFRAINING FROM SALES OF BEEF AT WHOLESALE OR
OF RUNNING THE RISK OF NUMEROUS CRIMINAL PROSECUTIONS AND SUITS FOR
TREBLE DAMAGES AUTHORIZED BY SEC. 205(E), WITHOUT THE BENEFIT OF ANY
TEMPORARY INJUNCTION OR STAY PENDING DETERMINATION BY THE PRESCRIBED
STATUTORY PROCEDURE OF THE REGULATION'S VALIDITY, IS SO HARSH IN ITS
APPLICATION TO THEM AS TO DENY THEM DUE PROCESS OF LAW.  IN ADDITION
THEY URGE THE INADEQUACY OF THE ADMINISTRATIVE PROCEDURE AND
PARTICULARLY OF THE SIXTY DAYS' PERIOD AFFORDED BY THE ACT WITHIN WHICH
TO PREPARE AND LODGE A PROTEST WITH THE ADMINISTRATOR. 

IN CONSIDERING THESE ASSERTED HARDSHIPS, IT IS APPROPRIATE TO TAKE
INTO ACCOUNT THE PURPOSES OF THE ACT AND THE CIRCUMSTANCES ATTENDING
ITS ENACTMENT AND APPLICATION AS A WARTIME EMERGENCY MEASURE.  THE ACT
WAS ADOPTED JANUARY 30, 1942, SHORTLY AFTER OUR DECLARATION OF WAR
AGAINST GERMANY AND JAPAN, WHEN IT WAS COMMON KNOWLEDGE, AS IS
EMPHASIZED BY THE LEGISLATIVE HISTORY OF THE ACT, THAT THERE WAS GRAVE
DANGER OF WARTIME INFLATION AND THE DISORGANIZATION OF OUR ECONOMY FROM
EXCESSIVE PRICE RISES.  CONGRESS WAS UNDER PRESSING NECESSITY OF
MEETING THIS DANGER BY A PRACTICABLE AND EXPEDITIOUS MEANS WHICH WOULD
OPERATE WITH SUCH PROMPTNESS, REGULARITY AND CONSISTENCY AS WOULD
MINIMIZE THE SUDDEN DEVELOPMENT OF COMMODITY PRICE DISPARITIES,
ACCENTUATED BY COMMODITY SHORTAGES OCCASIONED BY THE WAR.    INFLATION
IS ACCELERATED AND ITS CONSEQUENCES AGGRAVATED BY PRICE DISPARITIES NOT
BASED ON GEOGRAPHIC OR OTHER RELEVANT DIFFERENTIALS.  THE HARM
RESULTING FROM DELAYED OR UNEQUAL PRICE CONTROL IS BEYOND REPAIR.  AND
ONE OF THE PROBLEMS INVOLVED IN THE PREVENTION OF INFLATION BY
ESTABLISHMENT OF A NATION-WIDE SYSTEM OF PRICE CONTROL IS THE
DISORGANIZATION WHICH WOULD RESULT IF ENFORCEMENT OF PRICE ORDERS WERE
DELAYED OR SPORADIC OR WERE UNEQUAL OR CONFLICTING IN DIFFERENT PARTS
OF THE COUNTRY.  THESE EVILS MIGHT WELL ARISE IF REGULATIONS WITH
RESPECT TO WHICH THERE WAS FULL OPPORTUNITY FOR ADMINISTRATIVE REVISION
WERE TO BE MADE INEFFECTIVE BY INJUNCTION OR STAY OF THEIR ENFORCEMENT
IN ADVANCE OF SUCH REVISION OR OF FINAL DETERMINATION OF THEIR
VALIDITY. 

CONGRESS, IN ENACTING THE EMERGENCY PRICE CONTROL ACT, WAS FAMILIAR
WITH THE CONSISTENT HISTORY OF DELAY IN UTILITY RATE CASES.  IT HAD IN
MIND THE DANGERS TO PRICE CONTROL AS A PREVENTIVE OF INFLATION IF THE
VALIDITY AND EFFECTIVENESS OF PRESCRIBED MAXIMUM PRICES WERE TO BE
SUBJECT TO THE EXIGENCIES AND DELAYS OF LITIGATION ORIGINATING IN
EIGHTY-FIVE DISTRICT COURTS AND CONTINUED BY SEPARATE APPEALS THROUGH
ELEVEN SEPARATE COURTS OF APPEALS TO THIS COURT, TO SAY NOTHING OF
LITIGATION CONDUCTED IN STATE COURTS.  SEE SEN. REP. NO. 931, 77TH
CONG., 2D SESS., PP. 23-5. 

CONGRESS SOUGHT TO AVOID OR MINIMIZE THESE DIFFICULTIES BY THE
ESTABLISHMENT OF A SINGLE PROCEDURE FOR REVIEW OF THE ADMINISTRATOR'S
REGULATIONS, BEGINNING WITH AN APPEAL TO THE ADMINISTRATOR'S
SPECIALIZED KNOWLEDGE AND EXPERIENCE GAINED IN THE ADMINISTRATION OF
THE ACT, AND AFFORDING TO HIM AN OPPORTUNITY TO MODIFY THE REGULATIONS
AND ORDERS COMPLAINED OF BEFORE RESORT TO JUDICIAL DETERMINATION OF
THEIR VALIDITY.  THE ORGANIZATION OF SUCH AN EXCLUSIVE PROCEDURE
ESPECIALLY ADAPTED TO THE EXIGENCIES AND REQUIREMENTS OF A NATION-WIDE
SCHEME OF PRICE REGULATION IS, AS WE HAVE SEEN, WITHIN THE
CONSTITUTIONAL POWER OF CONGRESS TO CREATE INFERIOR FEDERAL COURTS AND
PRESCRIBE THEIR JURISDICTION.  THE CONSIDERATIONS WHICH LED TO ITS
CREATION ARE SIMILAR TO, AND CERTAINLY NO WEAKER THAN, THOSE WHICH LED
THIS COURT IN TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204
U.S. 426, AND THE LONG LINE OF CASES FOLLOWING IT, TO REQUIRE RESORT TO
THE INTERSTATE COMMERCE COMMISSION AND THE SPECIAL STATUTORY METHOD
PROVIDED FOR REVIEW OF ITS DECISIONS IN CERTAIN TYPES OF CASES
INVOLVING RAILWAY RATES.  AS WITH THE PRESENT STATUTE, IT WAS THOUGHT
DESIRABLE TO PREFACE ALL JUDICIAL ACTION BY RESORT TO EXPERT
ADMINISTRATIVE KNOWLEDGE AND EXPERIENCE, AND THUS MINIMIZE THE
CONFUSION THAT WOULD RESULT FROM INCONSISTENT DECISIONS OF DISTRICT AND
CIRCUIT COURTS RENDERED WITHOUT THE AID OF AN ADMINISTRATIVE
INTERPRETATION.  IN ADDITION THE PRESENT ACT SEEKS FURTHER TO AVOID
THAT CONFUSION BY RESTRICTING JUDICIAL REVIEW OF THE ADMINISTRATIVE
DETERMINATION TO A SINGLE COURT.  SUCH A PROCEDURE, SO LONG AS IT
AFFORDS TO THOSE AFFECTED A REASONABLE OPPORTUNITY TO BE HEARD AND
PRESENT EVIDENCE, DOES NOT OFFEND AGAINST DUE PROCESS.  BRADLEY V.
RICHMOND, 227 U.S. 477; FIRST NATIONAL BANK V. WELD COUNTY, 264 U.S.
450; ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337. 

PETITIONERS ASSERT THAT THEY HAVE BEEN DENIED THAT OPPORTUNITY
BECAUSE THE SIXTY DAYS' PERIOD ALLOWED FOR FILLING A PROTEST IS
INSUFFICIENT FOR THAT PURPOSE; BECAUSE THE PROCEDURE BEFORE THE
ADMINISTRATOR IS INADEQUATE TO ENSURE DUE PROCESS; BECAUSE THE STATUTE
PRECLUDES ANY INTERLOCUTORY INJUNCTION STAYING ENFORCEMENT OF A PRICE
REGULATION BEFORE FINAL ADJUDICATION OF ITS VALIDITY; BECAUSE THE TRIAL
OF THE ISSUE OF VALIDITY OF A REGULATION IS EXCLUDED FROM THE CRIMINAL
TRIAL FOR ITS VIOLATION; AND BECAUSE IN ANY CASE THERE IS NOTHING IN
THE STATUTE TO PREVENT THEIR CONVICTION FOR VIOLATION OF A REGULATION
BEFORE THEY COULD SECURE A RULING ON ITS VALIDITY.  A SUFFICIENT ANSWER
TO ALL THESE CONTENTIONS IS THAT PETITIONERS HAVE FAILED TO SEEK THE
ADMINISTRATIVE REMEDY AND THE STATUTORY REVIEW WHICH WERE OPEN TO THEM
AND THAT THEY HAVE NOT SHOWN THAT HAD THEY DONE SO ANY OF THE
CONSEQUENCES WHICH THEY APPREHEND WOULD HAVE ENSUED TO ANY EXTENT
WHATEVER, OR IF THEY SHOULD, THAT THE STATUTE WITHHOLDS JUDICIAL
REMEDIES ADEQUATE TO PROTECT PETITIONERS' RIGHTS. 

FOR THE PURPOSES OF THIS CASE, IN PASSING UPON THE SUFFICIENCY OF THE
PROCEDURE ON PROTEST TO THE ADMINISTRATOR AND COMPLAINT TO THE
EMERGENCY COURT, IT IS IRRELEVANT TO SUGGEST THAT THE ADMINISTRATOR OR
THE COURT HAS IN THE PAST OR MAY IN THE FUTURE DENY DUE PROCESS. 
ACTION TAKEN BY THEM IS REVIEWABLE IN THIS COURT AND IF CONTRARY TO DUE
PROCESS WILL BE CORRECTED HERE.  HENCE WE HAVE NO OCCASION TO PASS UPON
DETERMINATIONS OF THE ADMINISTRATOR OR THE EMERGENCY COURT, SAID TO
VIOLATE DUE PROCESS, WHICH HAVE NEVER BEEN BROUGHT HERE FOR REVIEW, AND
OBVIOUSLY WE CANNOT PASS UPON ACTION WHICH MIGHT HAVE BEEN TAKEN ON A
PROTEST BY PETITIONERS, WHO HAVE NEVER MADE A PROTEST OR IN ANY WAY
SOUGHT THE REMEDY CONGRESS HAS PROVIDED.  IN THE ABSENCE OF ANY
PROCEEDING BEFORE THE ADMINISTRATOR WE CANNOT ASSUME THAT HE WOULD FAIL
IN THE PERFORMANCE OF ANY DUTY IMPOSED ON HIM BY THE CONSTITUTION AND
LAWS OF THE UNITED STATES, OR THAT HE WOULD DENY DUE PROCESS TO
PETITIONERS BY "LOADING THE RECORD AGAINST THEM" OR DENYING SUCH
HEARING AS THE CONSTITUTION PRESCRIBES.  PLYMOUTH COAL CO. V.
PENNSYLVANIA, 232 U.S. 531, 545; HALL V. GEIGER-JONES CO., 242 U.S.
539, 554; MINNESOTA V. PROBATE COURT, 309 U.S. 270, 277, AND CASES
CITED.  ONLY IF WE COULD SAY IN ADVANCE OF RESORT TO THE STATUTORY
PROCEDURE THAT IT IS INCAPABLE OF AFFORDING DUE PROCESS TO PETITIONERS
COULD WE CONCLUDE THAT THEY HAVE SHOWN ANY LEGAL EXCUSE FOR THEIR
FAILURE TO RESORT TO IT OR THAT THEIR CONSTITUTIONAL RIGHTS HAVE BEEN
OR WILL BE INFRINGED.  NATURAL GAS CO. V. SLATTERY, 302 U.S. 300, 309;
ANNISTON MFG. CO. V. DAVIS, SUPRA, 356-7; MINNESOTA V. PROBATE COURT,
SUPRA, 275, 277.  BUT UPON A FULL EXAMINATION OF THE PROVISIONS OF THE
STATUTE IT IS EVIDENT THAT THE AUTHORIZED PROCEDURE IS NOT INCAPABLE OF
AFFORDING THE PROTECTION TO PETITIONERS' RIGHTS REQUIRED BY DUE
PROCESS. 

THE REGULATIONS, WHICH ARE GIVEN THE FORCE OF LAW, ARE PUBLISHED IN
THE FEDERAL REGISTER, AND CONSTRUCTIVE NOTICE OF THEIR CONTENTS IS THUS
GIVEN ALL PERSONS AFFECTED BY THEM.  44 U.S.C. SEC. 307.  THE PENAL
PROVISIONS OF THE STATUTE ARE APPLICABLE ONLY TO VIOLATIONS OF A
REGULATION WHICH ARE WILLFUL.  PETITIONERS HAVE NOT CONTENDED THAT THEY
WERE UNAWARE OF THE REGULATION AND THE JURY FOUND THAT THEY KNOWINGLY
VIOLATED IT WITHIN EIGHT DAYS AFTER ITS ISSUE. 

THE SIXTY DAYS' PERIOD ALLOWED FOR PROTEST OF THE ADMINISTRATOR'S
REGULATIONS CANNOT BE SAID TO BE UNREASONABLY SHORT IN VIEW OF THE
URGENCY AND EXIGENCIES OF WARTIME PRICE REGULATION.  FN3 HERE THE
ADMINISTRATOR IS REQUIRED TO ACT INITIALLY UPON THE PROTEST WITHIN
THIRTY DAYS AFTER IT IS FILED OR NINETY DAYS AFTER PROMULGATION OF THE
CHALLENGED REGULATION, BY ALLOWING THE PROTEST WHOLLY OR IN PART, OR
DENYING IT OR SETTING IT DOWN FOR HEARING.  (SEC. 203(A).)  BUT WE
CANNOT SAY THAT THE ADMINISTRATOR WOULD NOT HAVE ALLOWED AMPLE TIME FOR
THE PRESENTATION OF EVIDENCE.  FN4 AND UNDER SEC. 204(A) PETITIONERS
COULD HAVE APPLIED TO THE EMERGENCY COURT OF APPEALS FOR LEAVE TO
INTRODUCE ANY ADDITIONAL EVIDENCE "WHICH COULD NOT REASONABLY" HAVE
BEEN OFFERED TO THE ADMINISTRATOR OR INCLUDED IN THE PROCEEDINGS BEFORE
HIM, AND COULD HAVE APPLIED TO THE ADMINISTRATOR TO MODIFY OR CHANGE
HIS DECISION IN THE LIGHT OF THAT EVIDENCE. 

NOR CAN WE SAY THAT THE ADMINISTRATIVE HEARING PROVIDED BY THE
STATUTE WILL PROVE INADEQUATE.  WE HOLD IN BOWLES V. WILLINGHAM, POST,
P. 503, THAT IN THE CIRCUMSTANCES TO WHICH THIS ACT WAS INTENDED TO
APPLY, THE FAILURE TO AFFORD A HEARING PRIOR TO THE ISSUE OF A PRICE
REGULATION DOES NOT OFFEND AGAINST DUE PROCESS.  WHILE THE HEARING ON A
PROTEST MAY BE RESTRICTED TO THE PRESENTATION OF DOCUMENTARY EVIDENCE,
AFFIDAVITS AND BRIEFS, THE ACT CONTEMPLATES, AND THE ADMINISTRATOR'S
REGULATIONS PROVIDE FOR, A FULL ORAL HEARING UPON A SHOWING THAT
WRITTEN EVIDENCE AND BRIEFS "WILL NOT PERMIT THE FAIR AND EXPEDITIOUS
DISPOSITION OF THE PROTEST."  (SEC. 203(A); REVISED PROCEDURAL
REGULATION NO. 1, SEC. 1300.39, 7 FED. REG. 8961.)  IN ADVANCE OF
APPLICATION TO THE ADMINISTRATOR FOR SUCH A HEARING WE CANNOT WELL SAY
WHETHER ITS DENIAL IN ANY PARTICULAR CASE WOULD BE A DENIAL OF DUE
PROCESS.  THE ACT REQUIRES THE ADMINISTRATOR TO INFORM THE PROTESTANT
OF THE GROUNDS FOR HIS DECISION DENYING A PROTEST, INCLUDING ALL
MATTERS OF WHICH HE HAS TAKEN OFFICIAL NOTICE.  (SEC. 203(A).)  IN VIEW
OF THE PROVISIONS FOR THE INTRODUCTION OF FURTHER EVIDENCE BOTH BEFORE
AND AFTER THE ADMINISTRATOR HAS ANNOUNCED HIS DETERMINATION, WE CANNOT
SAY THAT IF PETITIONERS HAD FILED A PROTEST ADEQUATE OPPORTUNITY WOULD
NOT HAVE BEEN AFFORDED THEM TO MEET ANY ARGUMENTS AND EVIDENCE PUT
FORWARD BY THE ADMINISTRATOR, OR THAT IF SUCH OPPORTUNITY HAD BEEN
DENIED THE DENIAL WOULD NOT HAVE BEEN CORRECTED BY THE EMERGENCY
COURT. 

THE EMERGENCY COURT HAS POWER TO REVIEW ALL QUESTIONS OF LAW,
INCLUDING THE QUESTION WHETHER THE ADMINISTRATOR'S DETERMINATION IS
SUPPORTED BY EVIDENCE, AND ANY QUESTION OF THE DENIAL OF DUE PROCESS OR
ANY PROCEDURAL ERROR APPROPRIATELY RAISED IN THE COURSE OF THE
PROCEEDINGS.  NO REASON IS ADVANCED WHY PETITIONERS COULD NOT,
THROUGHOUT THE STATUTORY PROCEEDING, RAISE AND PRESERVE ANY DUE PROCESS
OBJECTION TO THE STATUTE, THE REGULATIONS, OR THE PROCEDURE, AND SECURE
ITS FULL JUDICIAL REVIEW BY THE EMERGENCY COURT OF APPEALS AND THIS
COURT.  COMPARE WHITE V. JOHNSON, 282 U.S. 367, 374.  FN5 

IN THE CIRCUMSTANCES OF THIS CASE WE FIND NO DENIAL OF DUE PROCESS IN
THE STATUTORY PROHIBITION OF A TEMPORARY STAY OR INJUNCTION.  THE
PRESENT STATUTE IS NOT OPEN TO THE OBJECTION THAT PETITIONERS ARE
COMPELLED TO SERVE THE PUBLIC AS IN THE CASE OF A PUBLIC UTILITY, OR
THAT THE ONLY METHOD BY WHICH THEY CAN TEST THE VALIDITY OF THE
REGULATIONS PROMULGATED UNDER IT IS BY VIOLATING THE STATUTE AND THUS
SUBJECTING THEMSELVES TO THE POSSIBLE IMPOSITION OF SEVERE AND
CUMULATIVE PENALTIES.  SEE EX PARTE YOUNG, 209 U.S. 123; WILLCOX V.
CONSOLIDATED GAS CO., 212 U.S. 19, 53-4; MISSOURI PACIFIC RY. CO. V.
TUCKER, 230 U.S. 340; OKLAHOMA OPERATING CO. V. LOVE, 252 U.S. 331. 
FOR AS WE HAVE SEEN, SEC. 4(D) SPECIFICALLY PROVIDES THAT NO ONE SHALL
BE COMPELLED TO SELL ANY COMMODITY, AND THE STATUTE ITSELF PROVIDES AN
EXPEDITIOUS MEANS OF TESTING THE VALIDITY OF ANY PRICE REGULATION,
WITHOUT NECESSARILY INCURRING ANY OF THE PENALTIES OF THE ACT.  COMPARE
WADLEY SOUTHERN RY. CO. V. GEORGIA, 235 U.S. 651, 667-9. 

THE PETITIONERS ARE NOT CONFRONTED WITH THE CHOICE OF ABANDONING
THEIR BUSINESSES OR SUBJECTING THEMSELVES TO THE PENALTIES OF THE ACT
BEFORE THEY HAVE SOUGHT AND SECURED A DETERMINATION OF THE REGULATION'S
VALIDITY.  IT IS TRUE THAT IF THE ADMINISTRATOR DENIES A PROTEST NO
STAY OR INJUNCTION MAY BECOME EFFECTIVE BEFORE THE FINAL DECISION OF
THE EMERGENCY COURT OR OF THIS COURT IF REVIEW HERE IS SOUGHT.  IT IS
ALSO TRUE THAT THE PROCESS OF REACHING A FINAL DECISION MAY BE TIME
CONSUMING.  BUT WHILE COURTS HAVE NO POWER TO SUSPEND OR AMELIORATE THE
OPERATION OF A REGULATION DURING THE PENDENCY OF PROCEEDINGS TO
DETERMINE ITS VALIDITY, WE CANNOT SAY THAT THE ADMINISTRATOR HAS NO
SUCH POWER OR ASSUME THAT HE WOULD NOT EXERCISE IT IN AN APPROPRIATE
CASE. 

THE ADMINISTRATOR, WHO IS THE AUTHOR OF THE REGULATIONS, IS GIVEN
WIDE DISCRETION AS TO THE TIME AND CONDITIONS OF THEIR ISSUE AND
CONTINUED EFFECT.  SECTION 2(A) AUTHORIZES HIM TO ISSUE SUCH
REGULATIONS AS WILL EFFECTUATE THE PURPOSES OF THE ACT, WHENEVER, IN
HIS JUDGMENT, SUCH ACTION IS NECESSARY.  SECTION 201(D) SIMILARLY
AUTHORIZES HIM "FROM TIME TO TIME" TO ISSUE REGULATIONS WHEN NECESSARY
AND PROPER TO EFFECTUATE THE PURPOSES OF THE ACT.  ONE OF THE OBJECTS
OF THE PROTEST PROVISIONS IS TO ENABLE THE ADMINISTRATOR MORE FULLY TO
INFORM HIMSELF AS TO THE WISDOM OF A REGULATION THROUGH EVIDENCE OF ITS
EFFECT ON PARTICULAR CASES.  IN THE LIGHT OF THAT INFORMATION HE IS
AUTHORIZED BY SEC. 203(A) TO GRANT OR DENY A PROTEST "IN WHOLE OR IN
PART."  AND SEC. 204(A) AUTHORIZES THE ADMINISTRATOR TO MODIFY OR
RESCIND A REGULATION "AT ANY TIME."  FN6  MOREOVER SEC. 2(A) FURTHER
AUTHORIZES THE ISSUE, IN THE ADMINISTRATOR'S JUDGMENT, OF TEMPORARY
REGULATIONS, EFFECTIVE FOR SIXTY DAYS, "ESTABLISHING AS A MAXIMUM  ...
THE PRICE  ...  PREVAILING WITH RESPECT TO ANY COMMODITY  ...  WITHIN
FIVE DAYS PRIOR TO THE DATE OF ISSUANCE OF SUCH TEMPORARY REGULATIONS. 
...  " 

UNDER THESE SECTIONS THE ADMINISTRATOR MAY NOT ONLY ALTER OR SET
ASIDE THE REGULATION, BUT HE HAS WIDE SCOPE FOR THE EXERCISE OF HIS
DISCRETIONARY POWER TO MODIFY OR SUSPEND A REGULATION PENDING ITS
ADMINISTRATIVE AND JUDICIAL REVIEW.  HENCE WE CANNOT ASSUME THAT
PETITIONERS, HAD THEY APPLIED TO THE ADMINISTRATOR, WOULD NOT HAVE
SECURED ALL THE RELIEF TO WHICH THEY WERE ENTITLED.  THE DENIAL OF A
RIGHT TO A RESTRAINING ORDER OR INTERLOCUTORY INJUNCTION TO ONE WHO HAS
FAILED TO APPLY FOR AVAILABLE ADMINISTRATIVE RELIEF, NOT SHOWN TO BE
INADEQUATE, IS NOT A DENIAL OF DUE PROCESS.  NATURAL GAS CO. V.
SLATTERY, SUPRA, 310. 

IN ANY EVENT, WE ARE UNABLE TO SAY THAT THE DENIAL OF INTERLOCUTORY
RELIEF PENDING A JUDICIAL DETERMINATION OF THE VALIDITY OF THE
REGULATION WOULD, IN THE SPECIAL CIRCUMSTANCES OF THIS CASE, INVOLVE A
DENIAL OF CONSTITUTIONAL RIGHT.  IF THE ALTERNATIVES, AS CONGRESS COULD
HAVE CONCLUDED, WERE WARTIME INFLATION OR THE IMPOSITION ON INDIVIDUALS
OF THE BURDEN OF COMPLYING WITH A PRICE REGULATION WHILE ITS VALIDITY
IS BEING DETERMINED, CONGRESS COULD CONSTITUTIONALLY MAKE THE CHOICE IN
FAVOR OF THE PROTECTION OF THE PUBLIC INTEREST FROM THE DANGERS OF
INFLATION.  COMPARE MILLER V. SCHOENE, 276 U.S. 272, IN WHICH WE HELD
THAT THE FOURTEENTH AMENDMENT DID NOT PRECLUDE A STATE FROM COMPELLING
THE UNCOMPENSATED DESTRUCTION OF PRIVATE PROPERTY IN ORDER TO PRESERVE
IMPORTANT PUBLIC INTERESTS FROM DESTRUCTION.    THE AWARD OF AN
INTERLOCUTORY INJUNCTION BY COURTS OF EQUITY HAS NEVER BEEN REGARDED AS
STRICTLY A MATTER OF RIGHT, EVEN THOUGH IRREPARABLE INJURY MAY
OTHERWISE RESULT TO THE PLAINTIFF.  COMPARE SCRIPPS-HOWARD RADIO V.
FEDERAL COMMUNICATIONS COMM'N, 316 U.S. 4, 10 AND CASES CITED.  EVEN IN
SUITS IN WHICH ONLY PRIVATE INTERESTS ARE INVOLVED THE AWARD IS A
MATTER OF SOUND JUDICIAL DISCRETION, IN THE EXERCISE OF WHICH THE COURT
BALANCES THE CONVENIENCES OF THE PARTIES AND POSSIBLE INJURIES TO THEM
ACCORDING AS THEY MAY BE AFFECTED BY THE GRANTING OR WITHHOLDING OF THE
INJUNCTION.  MECCANO, LTD. V. JOHN WANAMAKER, 253 U.S. 136, 141; RICE &
ADAMS CORP. V. LATHROP, 278 U.S. 509, 514.  AND IT WILL AVOID SUCH
INCONVENIENCE AND INJURY SO FAR AS MAY BE, BY ATTACHING CONDITIONS TO
THE AWARD, SUCH AS THE REQUIREMENT OF AN INJUNCTION BOND CONDITIONED
UPON PAYMENT OF ANY DAMAGE CAUSED BY THE INJUNCTION IF THE PLAINTIFF'S
CONTENTIONS ARE NOT SUSTAINED.  PRENDERGAST V. NEW YORK TELEPHONE CO.,
262 U.S. 43, 51; OHIO OIL CO. V. CONWAY, 279 U.S. 813, 815. 

BUT WHERE AN INJUNCTION IS ASKED WHICH WILL ADVERSELY AFFECT A PUBLIC
INTEREST FOR WHOSE IMPAIRMENT, EVEN TEMPORARILY, AN INJUNCTION BOND
CANNOT COMPENSATE, THE COURT MAY IN THE PUBLIC INTEREST WITHHOLD RELIEF
UNTIL A FINAL DETERMINATION OF THE RIGHTS OF THE PARTIES, THOUGH THE
POSTPONEMENT MAY BE BURDENSOME TO THE PLAINTIFF.  FN7  VIRGINIAN RY.
CO. V. UNITED STATES, 272 U.S. 658, 672-3; PETROLEUM EXPLORATION CO. V.
PUBLIC SERVICE COMM'N, 304 U.S. 209, 222-3; DRYFOOS V. EDWARDS, 284 F.
596, 603, AFFIRMED, 251 U.S. 146; SEE BEAUMONT, S.L. & W. RY. CO. V.
UNITED STATES, 282 U.S. 74, 91, 92.  COMPARE WISCONSIN V. ILLINOIS, 278
U.S. 367, 418-21.  THIS IS BUT ANOTHER APPLICATION OF THE PRINCIPLE,
DECLARED IN VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 552,
THAT "COURTS OF EQUITY MAY, AND FREQUENTLY DO, GO MUCH FARTHER BOTH TO
GIVE AND WITHHOLD RELIEF IN FURTHERANCE OF THE PUBLIC INTEREST THAN
THEY ARE ACCUSTOMED TO GO WHEN ONLY PRIVATE INTERESTS ARE INVOLVED." 

HERE, IN THE EXERCISE OF THE POWER TO PROTECT THE NATIONAL ECONOMY
FROM THE DISRUPTIVE INFLUENCES OF INFLATION IN TIME OF WAR CONGRESS HAS
SEEN FIT TO POSTPONE INJUNCTIONS RESTRAINING THE OPERATIONS OF PRICE
REGULATIONS UNTIL THEIR LAWFULNESS COULD BE ASCERTAINED BY AN
APPROPRIATE AND EXPEDITIOUS PROCEDURE.  IN SO DOING IT HAS DONE ONLY
WHAT A COURT OF EQUITY COULD HAVE DONE, IN THE EXERCISE OF ITS
DISCRETION TO PROTECT THE PUBLIC INTEREST.  WHAT THE COURTS COULD DO
CONGRESS CAN DO AS THE GUARDIAN OF THE PUBLIC INTEREST OF THE NATION IN
TIME OF WAR.  THE LEGISLATIVE FORMULATION OF WHAT WOULD OTHERWISE BE A
RULE OF JUDICIAL DISCRETION IS NOT A DENIAL OF DUE PROCESS OR A
USURPATION OF JUDICIAL FUNCTIONS.  CF. DEMOREST V. CITY BANK CO., 321
U.S. 36.  FN8 

OUR DECISIONS LEAVE NO DOUBT THAT WHEN JUSTIFIED BY COMPELLING PUBLIC
INTEREST THE LEGISLATURE MAY AUTHORIZE SUMMARY ACTION SUBJECT TO LATER
JUDICIAL REVIEW OF ITS VALIDITY.  IT MAY INSIST ON THE IMMEDIATE
COLLECTION OF TAXES.  PHILLIPS V. COMMISSIONER, 283 U.S. 589, 595-7 AND
CASES CITED.  IT MAY TAKE POSSESSION OF PROPERTY PRESUMPTIVELY
ABANDONED BY ITS OWNER, PRIOR TO DETERMINATION OF ITS ACTUAL
ABANDONMENT.  ANDERSON NATIONAL BANK V. LUCKETT, 321 U.S. 233.  FOR THE
PROTECTION OF PUBLIC HEALTH IT MAY ORDER THE SUMMARY DESTRUCTION OF
PROPERTY WITHOUT PRIOR NOTICE OR HEARING.  NORTH AMERICAN COLD STORAGE
CO. V. CHICAGO, 211 U.S. 306; ADAMS V. MILWAUKEE, 228 U.S. 572, 584. 
IT MAY SUMMARILY REQUISITION PROPERTY IMMEDIATELY NEEDED FOR THE
PROSECUTION OF THE WAR.  COMPARE UNITED STATES V. PFITSCH, 256 U.S.
547.  AS A MEASURE OF PUBLIC PROTECTION THE PROPERTY OF ALIEN ENEMIES
MAY BE SEIZED, AND PROPERTY BELIEVED TO BE OWNED BY ENEMIES TAKEN
WITHOUT PRIOR DETERMINATION OF ITS TRUE OWNERSHIP.  CENTRAL UNION TRUST
CO. V. GARVAN, 254 U.S. 554, 566; STOEHR V. WALLACE, 255 U.S. 239,
245.  SIMILARLY PUBLIC NECESSITY IN TIME OF WAR MAY JUSTIFY ALLOWING
TENANTS TO REMAIN IN POSSESSION AGAINST THE WILL OF THE LANDLORD. 
BLOCK V. HIRSH, 256 U.S. 135; MARCUS BROWN CO. V. FELDMAN, 256 U.S.
170.  EVEN THE PERSONAL LIBERTY OF THE CITIZEN MAY BE TEMPORARILY
RESTRAINED AS A MEASURE OF PUBLIC SAFETY.  HIRABAYASHI V. UNITED
STATES, SUPRA; CF. JACOBSON V. MASSACHUSETTS, 197 U.S. 11.  MEASURED BY
THESE STANDARDS WE FIND NO DENIAL OF DUE PROCESS UNDER THE
CIRCUMSTANCES IN WHICH THIS ACT WAS ADOPTED AND MUST BE APPLIED, IN ITS
DENIAL OF ANY JUDICIAL STAY PENDING DETERMINATION OF A REGULATION'S
VALIDITY. 

               IV. 

AS WE HAVE SEEN, CONGRESS, THROUGH ITS POWER TO DEFINE THE
JURISDICTION OF INFERIOR FEDERAL COURTS AND TO CREATE SUCH COURTS FOR
THE EXERCISE OF THE JUDICIAL POWER, COULD, SUBJECT TO OTHER
CONSTITUTIONAL LIMITATIONS, CREATE THE EMERGENCY COURT OF APPEALS, GIVE
TO IT EXCLUSIVE EQUITY JURISDICTION TO DETERMINE THE VALIDITY OF PRICE
REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, AND FORECLOSE ANY FURTHER
OR OTHER CONSIDERATION OF THE VALIDITY OF A REGULATION AS A DEFENSE TO
A PROSECUTION FOR ITS VIOLATION. 

UNLIKE MOST PENAL STATUTES AND REGULATIONS WHOSE VALIDITY CAN BE
DETERMINED ONLY BY RUNNING THE RISK OF VIOLATION, SEE DOUGLAS V. CITY
OF JEANNETTE, 319 U.S. 157, 163, THE PRESENT STATUTE PROVIDES A MODE OF
TESTING THE VALIDITY OF A REGULATION BY AN INDEPENDENT ADMINISTRATIVE
PROCEEDING.  THERE IS NO CONSTITUTIONAL REQUIREMENT THAT THAT TEST BE
MADE IN ONE TRIBUNAL RATHER THAN IN ANOTHER, SO LONG AS THERE IS AN
OPPORTUNITY TO BE HEARD AND FOR JUDICIAL REVIEW WHICH SATISFIES THE
DEMANDS OF DUE PROCESS, AS IS THE CASE HERE.  THIS WAS RECOGNIZED IN
BRADLEY V. RICHMOND, SUPRA, AND IN WADLEY SOUTHERN RY. CO. V. GEORGIA,
SUPRA, 667, 669, AND HAS NEVER BEEN DOUBTED BY THIS COURT.  AND WE ARE
POINTED TO NO PRINCIPLE OF LAW OR PROVISION OF THE CONSTITUTION WHICH
PRECLUDES CONGRESS FROM MAKING CRIMINAL THE VIOLATION OF AN
ADMINISTRATIVE REGULATION, BY ONE WHO HAS FAILED TO AVAIL HIMSELF OF AN
ADEQUATE SEPARATE PROCEDURE FOR THE ADJUDICATION OF ITS VALIDITY, OR
WHICH PRECLUDES THE PRACTICE, IN MANY WAYS DESIRABLE, OF SPLITTING THE
TRIAL FOR VIOLATIONS OF AN ADMINISTRATIVE REGULATION BY COMMITTING THE
DETERMINATION OF THE ISSUE OF ITS VALIDITY TO THE AGENCY WHICH CREATED
IT, AND THE ISSUE OF VIOLATION TO A COURT WHICH IS GIVEN JURISDICTION
TO PUNISH VIOLATIONS.  SUCH A REQUIREMENT PRESENTS NO NOVEL
CONSTITUTIONAL ISSUE. 

NO PROCEDURAL PRINCIPLE IS MORE FAMILIAR TO THIS COURT THAN THAT A
CONSTITUTIONAL RIGHT MAY BE FORFEITED IN CRIMINAL AS WELL AS CIVIL
CASES BY THE FAILURE TO MAKE TIMELY ASSERTION OF THE RIGHT BEFORE A
TRIBUNAL HAVING JURISDICTION TO DETERMINE IT.  O'NEIL V. VERMONT, 144
U.S. 323, 331; BARBOUR V. GEORGIA, 249 U.S. 454, 460; WHITNEY V.
CALIFORNIA, 274 U.S. 357, 360, 362, 380.  COURTS MAY FOR THAT REASON
REFUSE TO CONSIDER A CONSTITUTIONAL OBJECTION EVEN THOUGH A LIKE
OBJECTION HAD PREVIOUSLY BEEN SUSTAINED IN A CASE IN WHICH IT WAS
PROPERLY TAKEN.  SEABOARD AIR LINE RY. CO. V. WATSON, 287 U.S. 86. 
WHILE THIS COURT IN ITS DISCRETION SOMETIMES DEPARTS FROM THIS RULE IN
CASES FROM LOWER FEDERAL COURTS, IT INVARIABLY ADHERES TO IT IN CASES
FROM STATE COURTS, SEE BRANDEIS, J. CONCURRING IN WHITNEY V.
CALIFORNIA, SUPRA, 380, AND IT COULD HARDLY BE MAINTAINED THAT IT IS
BEYOND LEGISLATIVE POWER TO MAKE THE RULE INFLEXIBLE IN ALL CASES. 
COMPARE WOOLSEY V. BEST, 299 U.S. 1 WITH EX PARTE SIEBOLD, 100 U.S.
371. 

FOR MORE THAN FIFTY YEARS IT HAS BEEN A PENAL OFFENSE FOR SHIPPERS
AND INTERSTATE RAIL CARRIERS TO FAIL TO OBSERVE THE DULY FILED TARIFFS
FIXING FREIGHT RATES - INCLUDING, SINCE 1906, RATES PRESCRIBED BY THE
COMMISSION - EVEN THOUGH THE VALIDITY OF THOSE RATES IS OPEN TO ATTACK
ONLY IN A SEPARATE ADMINISTRATIVE PROCEEDING BEFORE THE INTERSTATE
COMMERCE COMMISSION.  49 U.S.C. SECS. 6(7), 10(1); ARMOUR PACKING CO.
V. UNITED STATES, 209 U.S. 56, 81; UNITED STATES V. ADAMS EXPRESS CO.,
229 U.S. 381, 388.  IT IS NO DEFENSE TO A PROSECUTION FOR DEPARTURE
FROM A RATE FIXED BY THE FILED TARIFFS THAT THE RATE IS UNREASONABLE OR
OTHERWISE UNLAWFUL, WHERE ITS INFIRMITY HAS NOT FIRST BEEN ESTABLISHED
BY AN INDEPENDENT PROCEEDING BEFORE THE INTERSTATE COMMERCE COMMISSION,
AND THE DENIAL OF THE DEFENSE IN SUCH A CASE DOES NOT VIOLATE ANY
PROVISION OF THE CONSTITUTION.  UNITED STATES V. VACUUM OIL CO., 158 F.
536, 539-41; LEHIGH VALLEY R. CO. V. UNITED STATES, 188 F. 879, 887-8. 
SEE ALSO UNITED STATES V. STANDARD OIL CO., 155 F. 305, 309-10,
REVERSED ON OTHER GROUNDS, 164 F. 376.  COMPARE PENNSYLVANIA R. CO. V.
INTERNATIONAL COAL CO., 230 U.S. 184, 196-7; ARIZONA GROCERY CO. V.
ATCHISON, T. & S. F. RY. CO., 284 U.S. 370, 384.  SIMILARLY IT HAS BEEN
HELD THAT ONE WHO HAS FAILED TO AVAIL HIMSELF OF THE STATUTORY METHOD
OF REVIEW OF ORDERS OF THE SECRETARY OF AGRICULTURE UNDER THE PACKERS
AND STOCKYARDS ACT OF 1921, OR OF THE FEDERAL RADIO COMMISSION UNDER
THE RADIO ACT OF 1927, CANNOT ENJOIN THREATENED PROSECUTIONS FOR
VIOLATION OF THOSE ORDERS, UNITED STATES V. CORRICK, 298 U.S. 435, 440;
WHITE V. JOHNSON, SUPRA, 373-4.  SEE ALSO NATURAL GAS CO. V. SLATTERY,
SUPRA, 309-10.  FN9 

THE ANALOGY OF SUCH A PROCEDURE TO THE PRESENT, BY WHICH VIOLATION OF
A PRICE REGULATION IS MADE PENAL, UNLESS THE OFFENDER HAS ESTABLISHED
ITS UNLAWFULNESS BY AN INDEPENDENT STATUTORY PROCEEDING, IS COMPLETE
AND OBVIOUS.  AS WE HAVE POINTED OUT SUCH A REQUIREMENT IS
OBJECTIONABLE ONLY IF BY STATUTORY COMMAND OR IN OPERATION IT WILL
DENY, TO THOSE CHARGED WITH VIOLATIONS, AN ADEQUATE OPPORTUNITY TO BE
HEARD ON THE QUESTION OF VALIDITY.  AND, AS WE HAVE SEEN, PETITIONERS
FAIL TO SHOW THAT SUCH IS THE NECESSARY EFFECT OF THE PRESENT STATUTE,
OR THAT IF SO APPLIED AS TO DEPRIVE THEM OF AN ADEQUATE OPPORTUNITY TO
ESTABLISH THE INVALIDITY OF A REGULATION THERE WOULD NOT BE ADEQUATE
MEANS OF SECURING APPROPRIATE JUDICIAL RELIEF IN THE COURSE EITHER OF
THE STATUTORY PROCEEDING OR OF THE CRIMINAL TRIAL.  DURING THE PRESENT
TERM OF COURT WE HAVE HELD THAT ONE CHARGED WITH CRIMINAL VIOLATIONS OF
AN ORDER OF HIS DRAFT BOARD MAY NOT CHALLENGE THE VALIDITY OF THE ORDER
IF HE HAS FAILED TO PURSUE TO COMPLETION THE EXCLUSIVE ADMINISTRATIVE
REMEDIES PROVIDED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. 
FALBO V. UNITED STATES, 320 U.S. 549; AND SEE BOWLES V. UNITED STATES,
319 U.S. 33.  WE PERCEIVE NO TENABLE GROUND FOR DISTINGUISHING THAT
CASE FROM THIS. 

WE HAVE NO OCCASION TO DECIDE WHETHER ONE CHARGED WITH CRIMINAL
VIOLATION OF A DULY PROMULGATED PRICE REGULATION MAY DEFEND ON THE
GROUND THAT THE REGULATION IS UNCONSTITUTIONAL ON ITS FACE.  NOR DO WE
CONSIDER WHETHER ONE WHO IS FORCED TO TRIAL AND CONVICTED OF VIOLATION
OF A REGULATION, WHILE DILIGENTLY SEEKING DETERMINATION OF ITS VALIDITY
BY THE STATUTORY PROCEDURE, MAY THUS BE DEPRIVED OF THE DEFENSE THAT
THE REGULATION IS INVALID.  THERE IS NO CONTENTION THAT THE PRESENT
REGULATION IS VOID ON ITS FACE, PETITIONERS HAVE TAKEN NO STEP TO
CHALLENGE ITS VALIDITY BY THE PROCEDURE WHICH WAS OPEN TO THEM AND IT
DOES NOT APPEAR THAT THEY HAVE BEEN DEPRIVED OF THE OPPORTUNITY TO DO
SO.  EVEN THOUGH THE STATUTE SHOULD BE DEEMED TO REQUIRE IT, ANY RULING
AT THE CRIMINAL TRIAL WHICH WOULD PRECLUDE THE ACCUSED FROM SHOWING
THAT HE HAD HAD NO OPPORTUNITY TO ESTABLISH THE INVALIDITY OF THE
REGULATION BY RESORT TO THE STATUTORY PROCEDURE, WOULD BE REVIEWABLE ON
APPEAL ON CONSTITUTIONAL GROUNDS.  IT WILL BE TIME ENOUGH TO DECIDE
QUESTIONS NOT INVOLVED IN THIS CASE WHEN THEY ARE BROUGHT TO US FOR
DECISION, AS THEY MAY BE, WHETHER THEY ARISE IN THE EMERGENCY COURT OF
APPEALS OR IN THE DISTRICT COURT UPON A CRIMINAL TRIAL. 

IN THE EXERCISE OF THE EQUITY JURISDICTION OF THE EMERGENCY COURT OF
APPEALS TO TEST THE VALIDITY OF A PRICE REGULATION, A JURY TRIAL IS NOT
MANDATORY UNDER THE SEVENTH AMENDMENT.  CF. BLOCK V. HIRSH, SUPRA,
158.  NOR HAS THERE BEEN ANY DENIAL IN THE PRESENT CRIMINAL PROCEEDING
OF THE RIGHT, GUARANTEED BY THE SIXTH AMENDMENT, TO A TRIAL BY A JURY
OF THE STATE AND DISTRICT WHERE THE CRIME WAS COMMITTED.  SUBJECT TO
THE REQUIREMENTS OF DUE PROCESS, WHICH ARE HERE SATISFIED, CONGRESS
COULD MAKE CRIMINAL THE VIOLATION OF A PRICE REGULATION.  THE
INDICTMENT CHARGED A VIOLATION OF THE REGULATION IN THE DISTRICT OF
TRIAL, AND THE QUESTION WHETHER PETITIONERS HAD COMMITTED THE CRIME
THUS CHARGED IN THE INDICTMENT AND DEFINED BY CONGRESS, NAMELY, WHETHER
THEY HAD VIOLATED THE STATUTE BY WILLFUL DISOBEDIENCE OF A PRICE
REGULATION PROMULGATED BY THE ADMINISTRATOR, WAS PROPERLY SUBMITTED TO
THE JURY.  CF. FALBO V. UNITED STATES, SUPRA.  AFFIRMED. 

FN1  THE PARTIES HAVE NOT DISCUSSED IN BRIEFS OR ON ARGUMENT, AND WE
DO NOT FIND IT NECESSARY TO CONSIDER, THE PRECISE EFFECT OF THIS
DIRECTION TO STABILIZE PRICES "SO FAR AS PRACTICABLE" AT THE LEVELS
OBTAINING ON SEPTEMBER 15, 1942, UPON THE STANDARDS LAID DOWN BY SEC.
2(A) OF THE ACT AND THE DISCRETION WHICH THEY CONFER ON THE
ADMINISTRATOR. 

FN2  THE USE OF THE MARCH 16-28, 1942, BASE PERIOD IS EXPLAINED BY
THE FACT THAT WHOLESALE MEAT PRICES HAD ALREADY BEEN STABILIZED AT
APPROXIMATELY THAT LEVEL BY MAXIMUM PRICE REGULATION NO. 169 AS
ORIGINALLY ISSUED ON JUNE 19, 1942, 7 FED. REG. 4653, AND BY THE
GENERAL MAXIMUM PRICE REGULATION, ISSUED APRIL 28, 1942, 7 FED. REG.
3153, WHICH FORBADE THE SALE OF MOST COMMODITIES AT PRICES IN EXCESS OF
THE HIGHEST PRICE CHARGED BY THE SELLER DURING MARCH, 1942.  THE
STATEMENT OF CONSIDERATIONS ACCOMPANYING THE LATTER, 2 C.C.H. WAR LAW
SERVICE - PRICE CONTROL, PARA. 42,081, EXPLAINS IN SOME DETAIL THE
CONSIDERATIONS IMPELLING THE ADMINISTRATOR TO THE CONCLUSION THAT
STABILIZATION AT THE LEVELS OBTAINING IN MARCH, 1942 WOULD BE FAIR AND
EQUITABLE AND WOULD EFFECTUATE THE PURPOSES OF THE ACT; IT CONSIDERS
THE PRICE LEVELS PREVAILING DURING OCTOBER 1-15, 1941, AND GIVES
REASONS WHY PRICE STABILIZATION AT THOSE LEVELS WOULD NOT BE
PRACTICABLE.  THE STATEMENT OF CONSIDERATIONS ACCOMPANYING MAXIMUM
PRICE REGULATION NO. 169 AS ORIGINALLY ISSUED, 2 C.C.H. WAR LAW SERVICE
- PRICE CONTROL, PARA. 43,369A, REFERS TO THIS DISCUSSION IN
EXPLANATION OF THE CONTINUANCE OF THE USE OF MARCH, 1942, LEVELS AS A
BASE. 

FN3  FOR NUMEROUS INSTANCES IN WHICH COMPARABLE OR SHORTER PERIODS
FOR RESORT TO ADMINISTRATIVE RELIEF AS A PREREQUISITE TO PROCEEDING IN
THE COURTS HAVE BEEN HELD TO BE SUFFICIENT, SEE, E.G., BELLINGHAM BAY &
B.C.R. CO. V. NEW WHATCOM, 172 U.S. 314(10 DAYS); CAMPBELL V. OLNEY,
262 U.S. 352(20 DAYS); WICK V. CHELAN ELECTRIC CO., 280 U.S. 108(18
DAYS); PHILLIPS V. COMMISSIONER, 283 U.S. 589(60 DAYS); OPP COTTON
MILLS V. ADMINISTRATOR, 312 U.S. 126(40 DAYS). 

FN4  REVISED PROCEDURAL REGULATION NO. 1, 7 FED. REG. 8961,
AUTHORIZED BY SEC. 203(A), CONTAINS DETAILED PROVISIONS FOR EXTENDING
THE TIME FOR PRESENTATION OF EVIDENCE WHEN APPROPRIATE.  SECS.
1300.30(C), 1300.33, 1300.35(A)(3). 

FN5  NOR IS THE INCONVENIENCE TO PETITIONERS OF BEING REQUIRED TO
MAKE THEIR OBJECTION TO THE ADMINISTRATOR IN WASHINGTON, D.C.
SUFFICIENT TO OUTWEIGH THE PUBLIC INTEREST, IN THE CIRCUMSTANCES OF
THIS CASE, IN HAVING A CENTRALIZED, UNITARY SCHEME OF REVIEW OF THE
REGULATIONS.  THE PROTEST PROCEDURE IS DESIGNED TO BE CONDUCTED
PRIMARILY UPON DOCUMENTARY EVIDENCE, SEC. 203(A); REVISED PROCEDURAL
REGULATION NO. 1, SECS. 1300.29-1300.31, 1300.39.  THERE WOULD THUS BE
NO PURPOSE IN THE PERSONAL PRESENCE OF THE PROTESTANT UNLESS THE
PROTEST WERE SET FOR HEARING BY THE ADMINISTRATOR, AND IN SUCH A CASE
THE HEARING MAY BE HELD AT ANY PLACE DESIGNATED BY THE ADMINISTRATOR
AND BEFORE A PERSON DESIGNATED BY HIM.  ID., SECS. 1300.39, 1300.42. 
THE EMERGENCY COURT OF APPEALS IS LIKEWISE AUTHORIZED TO "HOLD SESSIONS
AT SUCH PLACES AS IT MAY SPECIFY" AND DOES IN FACT HOLD SESSIONS
THROUGHOUT THE COUNTRY AS NEEDED.  SEC. 204(C):  RULE 4(A) OF ITS RULES
OF PROCEDURE, 50 U.S.C. APP. SUPP. II FOLLOWING SEC. 924. 

FN6  REVISED PROCEDURAL REGULATION NO. 1 AUTHORIZES THE FILING AT ANY
TIME OF A PETITION TO AMEND A REGULATION (SEC. 1300.20), AND AUTHORIZES
THE ADMINISTRATOR TO TREAT A PROTEST AS A PETITION FOR AMENDMENT AS
WELL (SEC. 1300.49). 

FN7  CONGRESS HAS SOUGHT TO MINIMIZE THE BURDEN SO FAR AS WOULD BE
CONSISTENT WITH THE PUBLIC INTEREST BY PROVIDING EXPEDITIOUS PROCEDURE
FOR THE REVIEW, ON PROTEST AND COMPLAINT, OF A REGULATION'S VALIDITY. 
THUS A PROTEST MUST BE FILED WITHIN 60 DAYS (SEC. 203(A)); THE
ADMINISTRATOR MUST TAKE INITIAL ACTION ON IT WITHIN A REASONABLE TIME
BUT NOT MORE THAN 30 DAYS AFTER ITS FILING OR 90 DAYS AFTER THE
ISSUANCE OF THE REGULATION (SEC. 203(A)); THE COMPLAINT TO THE
EMERGENCY COURT MUST BE FILED WITHIN 30 DAYS (SEC. 204(A)); THAT COURT
IS DIRECTED TO "PRESCRIBE RULES GOVERNING ITS PROCEDURE IN SUCH MANNER
AS TO EXPEDITE THE DETERMINATION OF CASES OF WHICH IT HAS JURISDICTION"
(SEC. 204(C)); IN ORDER TO PROMOTE THAT END, AS MANY JUDGES AS ARE
NEEDED MAY BE DESIGNATED TO SERVE ON IT, IT MAY SIT IN DIVISIONS, AND
MAY HOLD SESSIONS AT SUCH PLACES AS IT MAY SPECIFY (SEC. 204(C)), AND
IN FACT IT DOES SIT IN VARIOUS PARTS OF THE COUNTRY AS THE CONVENIENCE
OF THE PARTIES MAY REQUIRE; UNDER ITS RULES IT IS "ALWAYS  ...  OPEN
FOR THE TRANSACTION OF BUSINESS," (RULE 4(A); 50 U.S.C. APP., SUPP. II
FOLLOWING SEC. 924); PETITIONS FOR CERTIORARI TO REVIEW ITS DECISIONS
MUST BE FILED WITHIN 30 DAYS (SEC. 204(D)); AND THIS COURT IS DIRECTED
TO ADVANCE ON THE DOCKET AND EXPEDITE THE DECISION OF ALL CASES FROM
THE EMERGENCY COURT (SEC. 204(D)).  WE CANNOT ASSUME THAT THE
ADMINISTRATOR, WHO HAS A VITAL INTEREST IN THE PROMPT AND EFFECTIVE
ENFORCEMENT OF THE ACT, WOULD UNREASONABLY DELAY ACTION UPON A PROTEST;
IF HE SHOULD, JUDICIAL REMEDIES ARE NOT LACKING, SEE SAFEWAY STORES V.
BROWN, 138 F.2D 278, 280. 

FN8  FOR OTHER INSTANCES IN WHICH CONGRESS HAS REGULATED AND
RESTRICTED THE POWER OF THE FEDERAL COURTS TO GRANT INJUNCTIONS, SEE:
1.  SECTION 16 OF THE JUDICIARY ACT OF 1789, 1 STAT. 82, JUDICIAL CODE
SEC. 267, 28 U.S.C. SEC. 384, DENYING RELIEF IN EQUITY WHERE THERE IS
ADEQUATE REMEDY AT LAW.  2.  SECTION 5 OF THE ACT OF MARCH 2, 1793, 1
STAT. 334, JUDICIAL CODE SEC. 265, 28 U.S.C. SEC. 379, PROHIBITING
INJUNCTION OF STATE JUDICIAL PROCEEDINGS.  3.  ACT OF MARCH 2, 1867, 14
STAT. 475, 26 U.S.C. SEC. 3653, PROHIBITING SUITS TO ENJOIN COLLECTION
OR ENFORCEMENT OF FEDERAL TAXES.  4.  THE JOHNSON ACT OF MAY 14, 1934,
48 STAT. 775, 28 U.S.C. SEC. 41(1), RESTRICTING JURISDICTION TO ENJOIN
ORDERS OF STATE BODIES FIXING UTILITY RATES.  5.  ACT OF AUG. 21, 1937,
50 STAT. 738, 28 U.S.C. SEC. 41(1), SIMILARLY RESTRICTING JURISDICTION
TO ENJOIN COLLECTION OR ENFORCEMENT OF STATE TAXES.  6.  SECTION 17 OF
THE ACT OF JUNE 18, 1910, 36 STAT. 557 AND SEC. 3 OF THE ACT OF AUG.
24, 1937, 50 STAT. 752, 28 U.S.C. SECS. 380 AND 380(A), REQUIRING THE
CONVENING OF A THREE-JUDGE COURT FOR THE GRANTING OF TEMPORARY
INJUNCTIONS IN CERTAIN CASES AND ALLOWING A TEMPORARY RESTRAINING ORDER
BY ONE JUDGE ONLY TO PREVENT IRREPARABLE INJURY.  7.  THE NORRIS
LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C. SECS. 101-15, REGULATING THE
ISSUE OF INJUNCTIONS IN LABOR DISPUTES AND PROHIBITING THEIR ISSUE
"CONTRARY TO THE PUBLIC POLICY" DECLARED IN THE ACT.  IN SEVERAL CASES
SUCH STATUTES WERE HELD TO BE MERELY DECLARATORY OF A PREVIOUSLY
OBTAINING RULE FOR THE GUIDANCE OF JUDICIAL DISCRETION.  SEE, E.G.,
STATE RAILROAD TAX CASES, 92 U.S. 575, 613(ACT OF MARCH 2, 1867);
MATTHEWS V. RODGERS, 284 U.S. 521, 525(JUDICIAL CODE SEC. 267); GREAT
LAKES DREDGE & DOCK CO. V. HUFFMAN, 319 U.S. 293, 297(ACT OF AUG. 21,
1937). 

FN9  COMPARE THE PROVISIONS OF THE PACKERS AND STOCKYARDS ACT, 7
U.S.C. SECS. 194 AND 195, AND OF THE COMMODITY EXCHANGE ACT, 7 U.S.C.
SEC. 13(A), IMPOSING CRIMINAL SANCTIONS, AND THOSE OF THE FEDERAL TRADE
COMMISSION ACT AS AMENDED, 15 U.S.C. SECS. 45(G)-(L) IMPOSING HEAVY
PENALTIES, FOR VIOLATION OF AN ADMINISTRATIVE ORDER WHICH HAS BECOME
FINAL BY ITS AFFIRMANCE UPON THE EXCLUSIVE STATUTORY METHOD OF REVIEW
PROVIDED, OR BY THE EXPIRATION OF THE TIME ALLOWED FOR REVIEW WITHOUT
RESORT TO THE STATUTORY PROCEDURE. 

MR. JUSTICE ROBERTS: 

I DISSENT.  I FIND IT UNNECESSARY TO DISCUSS CERTAIN OF THE QUESTIONS
TREATED IN THE OPINION OF THE COURT.  I AM OF OPINION THAT THE ACT
UNCONSTITUTIONALLY DELEGATES LEGISLATIVE POWER TO THE ADMINISTRATOR. 
AS I READ THE OPINION OF THE COURT IT HOLDS THE ACT VALID ON THE GROUND
THAT SUFFICIENTLY PRECISE STANDARDS ARE PRESCRIBED TO CONFINE THE
ADMINISTRATOR'S REGULATIONS AND ORDERS WITHIN FIXED LIMITS, AND THAT
JUDICIAL REVIEW IS PROVIDED EFFECTIVELY TO PROHIBIT HIS TRANSGRESSION
OF THOSE LIMITS.  I BELIEVE THAT ANALYSIS DEMONSTRATES THE CONTRARY.  I
PROCEED, THEREFORE, TO EXAMINE THE STATUTE. 

                        THE POWERS CONFERRED. 

WHEN, IN HIS JUDGMENT, COMMODITY PRICES HAVE RISEN, OR THREATEN TO
RISE, "TO AN EXTENT OR IN A MANNER INCONSISTENT WITH THE PURPOSES" OF
THE ACT, THE ADMINISTRATOR MAY ESTABLISH "SUCH MAXIMUM PRICE OR MAXIMUM
PRICES AS IN HIS JUDGMENT WILL BE GENERALLY FAIR AND EQUITABLE AND WILL
EFFECTUATE THE PURPOSES" OF THE ACT. 

"SO FAR AS PRACTICABLE" IN ESTABLISHING ANY MAXIMUM PRICE, HE IS TO
ASCERTAIN THE PRICES PREVAILING IN A SPECIFIED PERIOD IN 1941 BUT MAY
USE ANOTHER PERIOD NEAREST TO THAT SPECIFIED BECAUSE NECESSARY DATA FOR
THE PERIOD SPECIFIED IS NOT AVAILABLE; AND MAY MAKE ADJUSTMENTS "FOR
SUCH RELEVANT FACTORS AS HE MAY DETERMINE AND DEEM TO BE OF GENERAL
APPLICABILITY," INCLUDING SEVERAL FACTORS MENTIONED.  BEFORE ISSUING
ANY REGULATION, HE SHALL " SO FAR AS PRACTICABLE" ADVISE WITH
REPRESENTATIVE MEMBERS OF THE INDUSTRY AFFECTED. 

ANY REGULATION MAY PROVIDE FOR ADJUSTMENTS AND REASONABLE EXCEPTIONS
WHICH, IN THE ADMINISTRATOR'S JUDGMENT, ARE NECESSARY AND PROPER TO
EFFECTUATE THE PURPOSES OF THE ACT.  IF, IN HIS JUDGMENT, SUCH ACTION
IS NECESSARY OR PROPER TO EFFECTUATE THE PURPOSES OF THE ACT, HE MAY,
BY REGULATION OR ORDER, REGULATE OR PROHIBIT SPECULATIVE OR
MANIPULATIVE PRACTICES OR HOARDING IN CONNECTION WITH ANY COMMODITY (50
U.S.C. SEC. 902). 

IT WILL BE SEEN THAT WHETHER, AND, IF SO, WHEN, THE PRICE OF ANY
COMMODITY  FN1  SHALL BE REGULATED DEPENDS ON THE JUDGMENT OF THE
ADMINISTRATOR AS TO THE NECESSITY OR PROPRIETY OF SUCH PRICE REGULATION
IN EFFECTUATING THE PURPOSES OF THE ACT. 

       THE SUPPOSED STANDARDS FOR THE ADMINISTRATOR'S GUIDANCE. 

THE ACT PROVIDES THAT ANY REGULATION OR ORDER MUST BE "GENERALLY FAIR
AND EQUITABLE" IN THE ADMINISTRATOR'S JUDGMENT; BUT COUPLED WITH THIS
INJUNCTION IS ANOTHER THAT THE ORDER AND REGULATION MUST BE SUCH AS, IN
THE JUDGMENT OF THE ADMINISTRATOR, IS NECESSARY OR PROPER TO EFFECTUATE
THE PURPOSES OF THE ACT. 

I TURN, THEREFORE, TO THE STATED PURPOSES TO ASCERTAIN WHAT, IF ANY,
LIMITS THE STATUTE PLACES UPON THE ADMINISTRATOR'S EXERCISE OF HIS
POWERS. 

SHOULD BE SET FORTH SEPARATELY AS FOLLOWS: 

"TO STABILIZE PRICES AND TO PREVENT SPECULATIVE, UNWARRANTED, AND
ABNORMAL INCREASES IN PRICES AND RENTS;" 

IN ORDER TO EXERCISE HIS POWER ANENT THIS PURPOSE THE ADMINISTRATOR
WILL HAVE TO FORM A JUDGMENT AS TO WHAT STABILIZATION MEANS, AND WHAT
ARE SPECULATIVE, UNWARRANTED AND ABNORMAL INCREASES IN PRICE.  IT
HARDLY NEED BE SAID THAT MEN MAY DIFFER RADICALLY AS TO THE CONNOTATION
OF THESE TERMS AND THAT IT WOULD BE VERY DIFFICULT TO CONVICT ANYONE OF
ERROR OF JUDGMENT IN SO CLASSIFYING A GIVEN ECONOMIC PHENOMENON. 

"TO ELIMINATE AND PREVENT PROFITEERING, HOARDING, MANIPULATION,
SPECULATION, AND OTHER DISRUPTIVE PRACTICES RESULTING FROM ABNORMAL
MARKET CONDITIONS OR SCARCITIES CAUSED BY OR CONTRIBUTING TO THE
NATIONAL EMERGENCY;" 

TO ACCOMPLISH THIS PURPOSE THE ADMINISTRATOR MUST FORM A JUDGMENT AS
TO WHAT CONSTITUTES PROFITEERING, HOARDING, MANIPULATION OR
SPECULATION.  AS IF THE ADMINISTRATIVE DISCRETION WERE NOT SUFFICIENTLY
BROAD THERE IS ADDED THE PHRASE "OTHER DISRUPTIVE PRACTICES," WHICH
SEEMS TO LEAVE THE ADMINISTRATOR AT LARGE IN THE FORMATION OF OPINION
AS TO WHETHER ANY PRACTICE IS DISRUPTIVE. 

"TO ASSURE THAT DEFENSE APPROPRIATIONS ARE NOT DISSIPATED BY
EXCESSIVE PRICES;" 

IT IS NOT CLEAR - TO ME AT LEAST - WHAT IS THE LIMIT OF THIS
PURPOSE.  I CAN CONCEIVE THAT AN HONEST ADMINISTRATOR MIGHT, WITHOUT
LAYING HIMSELF OPEN TO THE CHARGE OF EXCEEDING HIS POWERS, MAKE ANY
KIND OF ORDER OR REGULATION BASED UPON THE VIEW THAT OTHERWISE DEFENSE
APPROPRIATIONS BY CONGRESS MIGHT BE DISSIPATED BY WHAT HE CONSIDERS
EXCESSIVE PRICES.  HOW HIS EXERCISE OF JUDGMENT IN CONNECTION WITH THIS
PURPOSE COULD BE THOUGHT EXCESSIVE IT IS IMPOSSIBLE FOR ME TO SAY. 

"TO PROTECT PERSONS WITH RELATIVELY FIXED AND LIMITED INCOMES,
CONSUMERS, WAGE EARNERS, INVESTORS, AND PERSONS DEPENDENT ON LIFE
INSURANCE, ANNUITIES, AND PENSIONS, FROM UNDUE IMPAIRMENT OF THEIR
STANDARD OF LIVING;" 

THE ADMINISTRATOR'S JUDGMENT THAT ANY PRICE POLICY WILL TEND TO
AFFECT THE CLASSES MENTIONED IN THIS PURPOSE FROM WHAT HE MAY DECIDE TO
BE "UNDUE IMPAIRMENT OF THEIR STANDARD OF LIVING" WOULD SEEM TO BE SO
SWEEPING THAT IT WOULD BE IMPOSSIBLE TO CONVICT HIM OF AN ERROR OF
JUDGMENT IN ANY CONCLUSION HE MIGHT REACH. 

"TO PREVENT HARDSHIPS TO PERSONS ENGAGED IN BUSINESS, TO SCHOOLS,
UNIVERSITIES, AND OTHER INSTITUTIONS, AND TO THE FEDERAL, STATE, AND
LOCAL GOVERNMENTS, WHICH WOULD RESULT FROM ABNORMAL INCREASES IN
PRICES;" 

OF COURSE CONGRESS MIGHT HAVE INCLUDED IN THE CATALOGUE OF
BENEFICIARIES CHURCHES, HOSPITALS, LABOR UNIONS, BANKS AND TRUST
COMPANIES AND OTHER PRAISEWORTHY ORGANIZATIONS, WITHOUT RENDERING THE
"STANDARD" ANY MORE VAGUE. 

"TO ASSIST IN SECURING ADEQUATE PRODUCTION OF COMMODITIES AND
FACILITIES;" 

HERE IS A PURPOSE WHICH SEEMS, TO SOME EXTENT AT LEAST, TO PERMIT THE
EASING OF PRICE RESTRICTIONS; FOR IT WOULD APPEAR THAT DIMINISHMENT OF
PRICE WOULD HARDLY ASSIST IN PROMOTING PRODUCTION.  THUS THE
ADMINISTRATOR, AND HE ALONE, IS TO BALANCE TWO COMPETING POLICIES AND
STRIKE THE HAPPY MEAN BETWEEN THEM.  WHO SHALL SAY HIS CONCLUSION IS SO
INDUBITABLY WRONG AS TO BE PROPERLY CHARACTERIZED AS "ARBITRARY OR
CAPRICIOUS." 

"TO PREVENT A POST EMERGENCY COLLAPSE OF VALUES;" 

THIS PURPOSE, OR "STANDARD," SEEMS TO PERMIT ADOPTION BY THE
ADMINISTRATOR OF ANY CONCEIVABLE POLICY.  I HAVE DIFFICULTY IN
ENVISAGING ANY PRICE POLICY IN SUPPORT OF WHICH SOME ECONOMIC DATA OR
OPINION COULD NOT BE CITED TO SHOW THAT IT WOULD TEND TO PREVENT POST
EMERGENCY COLLAPSE OF VALUES. 

THESE SEVEN PURPOSES MUST, I SUBMIT, BE CONSIDERED AS SEPARATE AND
INDEPENDENT.  ANY ACTION TAKEN BY THE ADMINISTRATOR WHICH, IN HIS
JUDGMENT, PROMOTES ANY ONE OR MORE OF THEM IS WITHIN THE GRANTED
POWER.  IF, IN HIS JUDGMENT, ANY ACTION BY HIM IS NECESSARY OR
APPROPRIATE TO THE ACCOMPLISHMENT OF ONE OR MORE OF THEM, THE ACT GIVES
SANCTION TO HIS ORDER OR REGULATION. 

REFLECTION WILL DEMONSTRATE THAT IN FACT THE ACT SETS NO LIMITS UPON
THE DISCRETION OR JUDGMENT OF THE ADMINISTRATOR.  HIS COMMISSION IS TO
TAKE ANY ACTION WITH RESPECT TO PRICES WHICH HE BELIEVES WILL PRESERVE
WHAT HE DEEMS A SOUND ECONOMY DURING THE EMERGENCY AND PREVENT WHAT HE
CONSIDERS TO BE A DISRUPTION OF SUCH A SOUND ECONOMY IN THE POSTWAR
PERIOD.  HIS JUDGMENT, FOUNDED, AS IT MAY BE, ON HIS STUDIES AND
INVESTIGATIONS, AS WELL AS OTHER ECONOMIC DATA, EVEN THOUGH CONTRARY TO
THE GREAT WEIGHT OF CURRENT OPINION OR AUTHORITY, IS THE FINAL
TOUCHSTONE OF THE VALIDITY OF HIS ACTION.    I SHALL NOT REPEAT WHAT I
HAVE SAID IN BOWLES V. WILLINGHAM, POST, P. 503.  I HAVE THERE QUOTED
THE SO-CALLED STANDARDS PRESCRIBED IN THE NATIONAL INDUSTRIAL RECOVERY
ACT.  COMPARISON OF THEM WITH THOSE OF THE PRESENT ACT, AND PERUSAL OF
WHAT WAS SAID CONCERNING THEM IN SCHECHTER CORP. V. UNITED STATES, 295
U.S. 495, LEAVES NO DOUBT THAT THE DECISION IS NOW OVERRULED.  THERE,
AS HERE, THE "CODE" OR REGULATION, TO BECOME EFFECTIVE, HAD TO BE FOUND
BY THE EXECUTIVE TO "TEND TO EFFECTUATE THE POLICY" OF THE ACT.  (SEE
FOOTNOTE 3, P. 521.) 

THE ADMINISTRATOR'S PROCEDURE. 

I HAVE NOT YET SPOKEN OF THE STATUTORY PROVISIONS RESPECTING THE
PERMISSIBLE PROCEDURE OF THE ADMINISTRATOR IN IMPOSING PRICES.  SEC.
202(A)(50 U.S.C. SEC. 922(A)) AUTHORIZES HIM TO MAKE SUCH STUDIES AND
INVESTIGATIONS AND TO OBTAIN SUCH INFORMATION AS HE DEEMS NECESSARY OR
PROPER TO ASSIST HIM IN PRESCRIBING ANY REGULATION OR ORDER, OR IN THE
ADMINISTRATION AND ENFORCEMENT OF THE ACT AND REGULATIONS, ORDERS, AND
PRICE SCHEDULES THEREUNDER.  THE REMAINING SUBSECTIONS GIVE HIM BROAD
POWERS TO COMPEL DISCLOSURE OF INFORMATION.  AND HE MAY TAKE OFFICIAL
NOTICE OF ECONOMIC DATA AND OTHER FACTS, INCLUDING FACTS FOUND AS A
RESULT OF HIS INVESTIGATIONS AND STUDIES (SEC. 203(B), 50 U.S.C. SEC.
923(B)). 

EACH REGULATION OR ORDER MUST BE ACCOMPANIED BY A "STATEMENT OF THE
CONSIDERATIONS INVOLVED" IN ITS ISSUE (SEC. 2(A), 50 U.S.C. SEC.
902(A)).  THIS IS NOT A STATEMENT OR FINDING OF FACT.  WEBSTER DEFINES
THE TERM "CONSIDERATION" AS "THAT WHICH IS, OR SHOULD BE, CONSIDERED AS
A GROUND OF OPINION OR ACTION; MOTIVE; REASON."  THE CITIZEN,
THEREFORE, IS MERELY TO BE ADVISED OF THE REASONS FOR THE
ADMINISTRATOR'S ACTION. 

HOW IS HE TO PROCEED IF HE DESIRES TO CHALLENGE THAT ACTION?  THE
ANSWER IS FOUND IN SEC. 203(50 U.S.C. SEC. 923).  WITHIN A SPECIFIED
TIME AFTER THE ISSUE OF A REGULATION ANY PERSON SUBJECT TO ANY
PROVISION OF IT MAY FILE A PROTEST "SPECIFICALLY SETTING FORTH
OBJECTIONS TO ANY SUCH PROVISION AND AFFIDAVITS OR OTHER WRITTEN
EVIDENCE IN SUPPORT OF SUCH OBJECTIONS."  THE ADMINISTRATOR MAY RECEIVE
STATEMENTS IN SUPPORT OF THE REGULATIONS AND INCORPORATE THEM IN HIS
PROCEEDINGS.  WITHIN A TIME FIXED HE MUST (1) GRANT OR DENY THE PROTEST
IN WHOLE OR IN PART, (2) NOTE IT FOR HEARING, OR (3) PROVIDE AN
OPPORTUNITY TO PRESENT FURTHER EVIDENCE.  HIS IS THE CHOICE. 

IF HE DENIES THE PROTEST IN WHOLE OR IN PART HE MUST INFORM THE
PROTESTANT OF THE GROUNDS UPON WHICH HIS DECISION WAS BASED AND OF ANY
ECONOMIC DATA OR OTHER FACTS OF WHICH HE HAS TAKEN OFFICIAL NOTICE. 

THIS, THEN, IS THE FIRST OPPORTUNITY THE PROTESTANT HAS TO KNOW ON
WHAT THE ADMINISTRATOR HAS BASED HIS "CONSIDERATIONS" OR REASONS FOR
ACTION.  AS THE EMERGENCY COURT OF APPEALS HELD IN LAKEMORE CO. V.
BROWN, 137 F.2D 355:  FN2 

"THUS, CONSISTENTLY WITH STATUTORY REQUIREMENTS, THE ADMINISTRATOR
COULD HAVE WAITED UNTIL HE HAD ENTERED HIS ORDER DENYING THE PROTEST
BEFORE INFORMING THE PROTESTANT OF THE ECONOMIC DATA OF WHICH HE HAD
TAKEN OFFICIAL NOTICE AND OF THE ECONOMIC CONCLUSIONS WHICH HE HAD
DERIVED THEREFROM AND THE OTHER GROUNDS UPON WHICH THE DENIAL WAS
BASED." 

AND IT IS TO BE OBSERVED THAT, AFTER SEEING THE PROTESTANT'S
AFFIDAVITS AND THE EVIDENCE, THE ADMINISTRATOR MAY LOAD THE RECORD WITH
ALL SORTS OF MATERIAL, ARTICLES, OPINIONS, COMPILATIONS, AND WHAT NOT -
PURE HEARSAY - SUBJECT TO NO CROSS-EXAMINATION, TO PERSUADE THE COURT
THAT HIS ORDER COULD, "IN HIS JUDGMENT," PROMOTE ONE OF THE "PURPOSES"
OF THE ACT. 

THUS IS THE "RECORD" WEIGHTED AGAINST FORMAL COMPLAINT IN COURT. 

CHATLOS V. BROWN, 136 F.2D 490, SPAETH V. BROWN, 137 F.2D 669, AND
BIBB MANUFACTURING CO. V. BOWLES, 140 F.2D 459, AMONGST OTHER CASES,
INDICATE THE SORT OF DATA - ALTHOUGH THEY DO NOT EXCLUDE THE USE OF
OTHER SORTS - ON WHICH THE ADMINISTRATOR SEEMS TO BE ACCUSTOMED, AND TO
BE ENTITLED, TO ACT.  HE NEED MAKE NO FINDINGS OF FACT. 

                  THE COURT REVIEW. 

THE PROTESTANT WHO IS AGGRIEVED BY THE DENIAL OR PARTIAL DENIAL OF
HIS PROTEST MAY, WITHIN A SET TIME, FILE A COMPLAINT WITH A SPECIALLY
CREATED EMERGENCY COURT OF APPEALS "SPECIFYING HIS OBJECTIONS AND
PRAYING THAT THE REGULATION, ORDER, OR PRICE SCHEDULE PROTESTED BE
ENJOINED OR SET ASIDE IN WHOLE OR IN PART."  THE COURT IS GIVEN
EXCLUSIVE JURISDICTION AND ALL OTHER COURTS ARE FORBIDDEN TO TAKE
JURISDICTION TO GRANT SUCH RELIEF.  THE COURT MAY SET ASIDE THE ORDER,
DISMISS THE COMPLAINT, OR REMAND THE PROCEEDING.  UPON THE FILING AND
SERVICE OF THE COMPLAINT, THE ADMINISTRATOR IS TO CERTIFY AND FILE A
TRANSCRIPT OF SUCH PORTION OF THE PROCEEDINGS BEFORE HIM AS ARE
MATERIAL TO THE COMPLAINT (SEC. 204(A); 50 U.S.C. SEC. 924(A)). 

THE SECTION PROCEEDS: 

"NO OBJECTION TO SUCH REGULATION, ORDER, OR PRICE SCHEDULE, AND NO
EVIDENCE IN SUPPORT OF ANY OBJECTION THERETO, SHALL BE CONSIDERED BY
THE COURT, UNLESS SUCH OBJECTION SHALL HAVE BEEN SET FORTH BY THE
COMPLAINANT IN THE PROTEST OR SUCH EVIDENCE SHALL BE CONTAINED IN THE
TRANSCRIPT.  IF APPLICATION IS MADE TO THE COURT BY EITHER PARTY FOR
LEAVE TO INTRODUCE ADDITIONAL EVIDENCE WHICH WAS EITHER OFFERED TO THE
ADMINISTRATOR AND NOT ADMITTED, OR WHICH COULD NOT REASONABLY HAVE BEEN
OFFERED TO THE ADMINISTRATOR OR INCLUDED BY THE ADMINISTRATOR IN SUCH
PROCEEDINGS, AND THE COURT DETERMINES THAT SUCH EVIDENCE SHOULD BE
ADMITTED, THE COURT SHALL ORDER THE EVIDENCE TO BE PRESENTED TO THE
ADMINISTRATOR.  THE ADMINISTRATOR SHALL PROMPTLY RECEIVE THE SAME, AND
SUCH OTHER EVIDENCE AS HE DEEMS NECESSARY OR PROPER, AND THEREUPON HE
SHALL CERTIFY AND FILE WITH THE COURT A TRANSCRIPT THEREOF AND ANY
MODIFICATION MADE IN THE REGULATION, ORDER, OR PRICE SCHEDULE AS A
RESULT THEREOF; EXCEPT THAT ON REQUEST BY THE ADMINISTRATOR, ANY SUCH
EVIDENCE SHALL BE PRESENTED DIRECTLY TO THE COURT." 

IT IS NOT DIFFICULT TO PICTURE THE PLIGHT OF THE PROTESTANT.  THE
ADMINISTRATOR'S STATEMENT OF CONSIDERATIONS, WITHOUT MORE, CONSTITUTES
PROOF IN THE CAUSE. 

IN MONTGOMERY WARD & CO. V. BOWLES, 138 F.2D 669, THE ADMINISTRATOR
IN HIS STATEMENT OF CONSIDERATIONS SAID THAT HE TOOK OFFICIAL NOTICE OF
THREE PROPOSITIONS OF THE MOST GENERAL SCOPE.  NO EVIDENCE IN SUPPORT
OF THESE OR OF ANY OTHER FACTS UPON WHICH HE RELIED WAS INCLUDED IN THE
TRANSCRIPT.  THE COMPLAINANT SUGGESTED TO THE COURT THE OMISSION OF
PERTINENT MATTER, NAMELY, THE EVIDENCE IN SUPPORT OF THE PROPOSITIONS
OF WHICH THE ADMINISTRATOR SAID HE TOOK OFFICIAL NOTICE, THE EVIDENCE
OF VARIOUS OTHER ASSERTIONS OF FACT IN HIS OPINION, AND THE PARTICULAR
FACTS AND EVIDENCE UPON WHICH HE BASED THE CONCLUSIONS EXPRESSED IN HIS
STATEMENT OF CONSIDERATIONS THAT "THE MAXIMUM PRICES ESTABLISHED IN
THIS REGULATION ARE FAIR AND EQUITABLE."  THE ADMINISTRATOR OBJECTED TO
THE SUGGESTION AND THE COURT REJECTED IT.  IT WAS HELD THAT THE ACT
REQUIRES "ONLY A SUMMARY STATEMENT OF THE BASIC FACTS WHICH JUSTIFY THE
REGULATION." 

REFERRING TO SEC. 204(B), 50 U.S.C. SEC. 924(B), THE COURT HELD THAT
THE REQUIREMENT THAT THE COMPLAINANT MUST ESTABLISH "TO THE
SATISFACTION OF THE COURT" THAT THE REGULATION, ORDER, OR PRICE
SCHEDULE IS NOT IN ACCORDANCE WITH LAW OR IS ARBITRARY OR CAPRICIOUS
THROWS UPON THE PROTESTANT THE BURDEN "TO BRING FORWARD AND
SATISFACTORILY PROVE THE INVALIDATING FACTS," AND ADDED:  "UNLESS AND
UNTIL HE DOES SO THE REGULATION IS TO BE TAKEN AS VALID AND THE
EXISTENCE OF A STATE OF FACTS WHICH JUSTIFY IT IS TO BE ASSUMED WITHOUT
THE NECESSITY OF PROOF THEREOF BY THE ADMINISTRATOR." 

THE COURT ADDED THAT THE PROTESTANT IS GIVEN MEANS OF CARRYING THIS
BURDEN BY FILING AFFIDAVITS AND OTHER EVIDENCE, BUT OMITS TO REFER TO
THE FACT THAT THESE AFFIDAVITS AND OTHER EVIDENCE MUST BE ADDRESSED TO
THE ADMINISTRATOR'S ORDER AND HIS MOST GENERAL AND SWEEPING STATEMENT
OF CONSIDERATIONS, WHICH MERELY MEANS HIS REASONS FOR MAKING THE
ORDER.  THESE AFFIDAVITS AND THIS EVIDENCE UNDER THE PROCEDURE
PRESCRIBED ARE TO BE PUT IN BEFORE THE PROTESTANT EVEN KNOWS WHAT DATA
THE ADMINISTRATOR RELIED UPON OR SEES THE ADMINISTRATOR'S OPINION
DENYING HIS PROTEST.  IT IS HARDLY NECESSARY TO DILATE UPON THE BURDEN
THUS PLACED ON A PROTESTANT OR THE EXTENT TO WHICH HE IS COMPELLED TO
FILL THE RECORD WITH WHAT HE MAY THINK RELEVANT MATTER ONLY TO FIND
THAT HE HAS BEEN SHOOTING AT STRAWS.  THE COURT FURTHER ADVERTED TO THE
FACT THAT THE ACT PERMITS THE PROTESTANT TO STATE IN DETAIL IN
CONNECTION WITH HIS PROTEST THE NATURE AND SOURCES OF ANY FURTHER
EVIDENCE NOT SUBJECT TO HIS CONTROL UPON WHICH HE BELIEVES HE CAN RELY
IN SUPPORT OF THE FACTS ALLEGED IN HIS PROTEST.  HERE AGAIN THE
PROTESTANT IS UNDER THE SAME HANDICAP.  HE MUST DISCLOSE ALL HE HAS IN
MIND TO THE ADMINISTRATOR BEFORE THE ADMINISTRATOR MAKES ANY DISCLOSURE
TO HIM OF THE FACTS AND DATA UPON WHICH THAT OFFICIAL HAS RELIED. 

FINALLY THE COURT REFERS TO THE PRIVILEGE GIVEN THE PROTESTANT TO
FILE A BRIEF WITH THE ADMINISTRATOR AND TO "REQUEST AN ORAL HEARING,"
WITHOUT MENTIONING THE FACTS THAT THE BRIEF CAN BE ADDRESSED ONLY TO
THE REASONS GIVEN IN THE STATEMENT OF CONSIDERATION, AND THAT THE
ADMINISTRATOR IS AT LIBERTY TO DENY THE REQUEST. 

A PROCEDURE BETTER DESIGNED TO PREVENT THE MAKING OF AN ISSUE BETWEEN
PARTIES CAN HARDLY BE CONCEIVED. 

AND THE EXTENT OF THE BURDEN IS FURTHER EMPHASIZED BY WHAT THE
EMERGENCY COURT OF APPEALS HAS SAID IN LAKEMORE CO. V. BROWN, SUPRA: 

"IT IS OBJECTED THAT THE ADMINISTRATOR THUS IN EFFECT HAS PREJUDGED
THE CASE; THAT AS WITNESS, IMMUNE FROM CROSS-EXAMINATION, HE HAS
RENDERED AN OPINION WHICH CONCLUDES THE MATTER WHICH IS BEFORE HIM AS
JUDGE. 

"THIS OVERLOOKS THE FACT THAT THE ADMINISTRATOR, FROM THE NECESSITIES
OF THE CASE, DOES NOT COME WITH A VIRGIN MIND TO THE CONSIDERATION OF A
PROTEST.  HE HAS PREVIOUSLY PERFORMED THE OFFICIAL ACT OF ISSUING THE
REGULATION, THE TERMS OF WHICH OF COURSE REFLECT HIS CONCLUSIONS ON
MANY ECONOMIC, ADMINISTRATIVE AND LEGAL QUESTIONS.  IN THIS SENSE, HE
NECESSARILY APPROACHES CONSIDERATION OF A PROTEST WITH CERTAIN
'PRECONCEIVED NOTIONS' - TO USE COMPLAINANT'S PHRASE.  IT IS THE OBJECT
OF THE PROTEST PROCEDURE TO GIVE THE ADMINISTRATOR A CHANCE TO
RECONSIDER ANY CHALLENGED PROVISIONS IN THE REGULATION IN THE LIGHT OF
FURTHER EVIDENCE OR ARGUMENTS WHICH MAY BE ADVANCED BY THE PROTESTANT. 
WHAT THE ADMINISTRATOR DID HERE WAS TO LAY HIS CARDS ON THE TABLE IN
THE PROTEST PROCEEDINGS, OFFERING PROTESTANT AN OPPORTUNITY TO PLAY ITS
TRUMP CARDS, IF IT HAD ANY. 

"OF COURSE SUCH STATEMENTS OF ECONOMIC CONCLUSIONS THUS INCORPORATED
IN THE RECORD ARE NOT 'EVIDENCE.'  SECTION 204(A) REQUIRES THE
TRANSCRIPT OF THE PROTEST PROCEEDINGS, FILED IN THIS COURT, TO 'INCLUDE
A STATEMENT SETTING FORTH, SO FAR AS PRACTICABLE, THE ECONOMIC DATA AND
OTHER FACTS OF WHICH THE ADMINISTRATOR HAS TAKEN OFFICIAL NOTICE.' 
INSOFAR AS ANY ECONOMIC GENERALIZATIONS OR CONCLUSIONS FORMULATED BY
THE ADMINISTRATOR CONSTITUTE INDISPENSABLE STEPS IN HIS PROCESS OF
REASONING IN DENYING THE PROTEST, IT IS FOR THIS COURT TO SAY WHETHER
THEY HAVE ANY RATIONAL BASIS, IN PERFORMANCE OF OUR STATUTORY DUTY TO
CONSIDER WHETHER THE REGULATION OR ORDER SHOULD BE SET ASIDE IN WHOLE
OR IN PART AS BEING 'ARBITRARY OR CAPRICIOUS.'  THIS IS SO, WHETHER THE
ADMINISTRATOR INCLUDES SUCH GENERALIZATIONS AND CONCLUSIONS IN HIS
OPINION ACCOMPANYING THE DENIAL OF THE PROTEST OR, AS IN THIS CASE,
INCORPORATES THEM INTO THE RECORD OF THE PROTEST PROCEEDINGS AT AN
EARLIER STAGE IN ORDER TO AFFORD PROTESTANT AN OPPORTUNITY FOR
REBUTTAL." 

TO THIS MAY BE ADDED WHAT THE EMERGENCY COURT SAID IN MADISON PARK
CORP. V. BOWLES, 140 F.2D 316, 324: 

"WE DO NOT DECIDE THAT THIS COURT SHOULD LIMIT THE APPLICATION OF THE
TERM 'GENERALLY FAIR AND EQUITABLE' TO STANDARDS MENTIONED IN THE LAW
AND IN DISCUSSIONS OF ITS ENACTMENT WHILE PENDING IN CONGRESS.  IT MAY
BE POSSIBLE THAT A CASE WILL OCCUR IN WHICH THE EFFECT OF A REGULATION
ESTABLISHED BY THE ADMINISTRATOR CLEARLY WILL BE SHOWN TO BE GENERALLY
UNFAIR AND INEQUITABLE ON GROUNDS NOT MENTIONED.  BUT IN SUCH A CASE
THE REASONS MUST BE CLEAR AND COMPELLING.  THE ACT PROVIDES THE
ADMINISTRATOR MAY ESTABLISH SUCH RENTS AS IN HIS JUDGMENT WILL BE
GENERALLY FAIR AND EQUITABLE.  REVIEW IN THIS COURT IS PLAINLY
LIMITED.  IT MAY NOT SUBSTITUTE ITS JUDGMENT FOR THE JUDGMENT OF THE
ADMINISTRATOR, BUT MAY ACT IN REVIEW ONLY WHEN IT FINDS THE REGULATION
IS NOT IN ACCORDANCE WITH LAW OR IS ARBITRARY AND CAPRICIOUS.  THUS IF
THE COURT FINDS ANY REASONABLE BASIS TO SUPPORT THE VIEW THAT THE
REGULATION DEALS FAIRLY AND EQUITABLY WITH THE INDUSTRY CONCERNED, THE
REGULATION MUST STAND." 

WHEN THESE CUMULATIVE BURDENS PLACED UPON THE PROTESTANT WHO SEEKS
REVIEW ARE FAIRLY APPRAISED IT BECOMES APPARENT THAT HE MUST CARRY AN
INSUPPORTABLE LOAD, AND THAT, IN TRUTH, THE COURT REVIEW IS A SOLEMN
FARCE IN WHICH THE EMERGENCY COURT OF APPEALS, AND THIS COURT, ON
CERTIORARI, MUST GO THROUGH A SERIES OF MOTIONS WHICH LOOK LIKE
JUDICIAL REVIEW BUT IN FACT ARE NOTHING BUT A CATALOGUE OF REASONS WHY,
UNDER THE SCHEME OF THE ACT, THE COURTS ARE UNABLE TO SAY THAT THE
ADMINISTRATOR HAS EXCEEDED THE DISCRETION VESTED IN HIM. 

NO COURT IS COMPETENT, ON A MASS OF ECONOMIC OPINION CONSISTING OF
STUDIES BY SUBORDINATES OF THE ADMINISTRATOR, CHARTS AND GRAPHS
PREPARED IN SUPPORT OF THE STUDIES, AND ECONOMIC ESSAYS GATHERED HITHER
AND YON, TO DEMONSTRATE, BEYOND DOUBT, THAT THE CONSIDERATIONS OR
CONCLUSIONS OF THE ADMINISTRATOR FROM SUCH MATERIAL CANNOT SUPPORT THE
ADMINISTRATOR'S JUDGMENT THAT WHAT HE HAS DONE BY WAY OF REGULATION OR
PRICE SCHEDULE TENDS TO PREVENT POSTWAR COLLAPSE OF VALUES, OR TO
PREVENT DISSIPATION OF DEFENSE APPROPRIATIONS THROUGH EXCESSIVE PRICES,
OR TO PREVENT IMPAIRMENT OF THE STANDARD OF LIVING OF PERSONS DEPENDENT
ON LIFE INSURANCE, OR TO PREVENT HARDSHIP TO SCHOOLS - TO ENUMERATE BUT
A FEW OF THE STATED PURPOSES OF THE ACT.    IT IS NOT SURPRISING THAT,
IN THE THIRTY-ONE CASES DECIDED BY THE EMERGENCY COURT OF APPEALS OF
WHICH I HAVE FOUND REPORTS, COMPLAINTS HAVE BEEN DISMISSED IN TWENTY
EIGHT, AND BUT THREE HAVE BEEN REMANDED TO THE ADMINISTRATOR FOR
FURTHER PROCEEDINGS.  FN3  TWO OF THE THREE INVOLVED NO QUESTION OF
MERITS UNDER THE STATUTORY PROVISIONS. 
THE WAR POWER. 

THE EMERGENCY COURT OF APPEALS IN TAYLOR V. BROWN, 137 F.2D 654,
OVERRULED A CHALLENGE TO THE CONSTITUTIONAL VALIDITY OF THE ACT'S
DELEGATION OF LEGISLATIVE POWER TO THE ADMINISTRATOR BY INVOCATION OF
THE "WAR POWER" OF CONGRESS, THE POWERS EMBODIED IN ARTICLE I, SEC. 8,
OF THE CONSTITUTION "TO DECLARE WAR," "TO RAISE AND SUPPORT ARMIES,"
"TO PROVIDE AND MAINTAIN A NAVY," AND "TO MAKE ALL LAWS WHICH SHALL BE
NECESSARY AND PROPER FOR CARRYING INTO EXECUTION" THOSE POWERS.  AFTER
SHOWING, WHAT NEEDS NO ARGUMENT, THAT THESE POWERS OF CONGRESS ARE VERY
DIFFERENT FROM THOSE TO BE EXERCISED IN PEACE, THE COURT THEN - WITHOUT
A SIGN THAT IT REALIZES THE GREAT GAP IN THE PROCESS - ASSUMES THAT ONE
OF CONGRESS' WAR POWERS IS THE POWER TO TRANSFER ITS LEGISLATIVE
FUNCTION TO A DELEGATE.  BY THE SAME REASONING IT COULD CLOSE THIS
COURT OR TAKE AWAY THE CONSTITUTIONAL PREROGATIVES OF THE PRESIDENT AS
"WAR MEASURES." 

I AM NOT SURE HOW FAR THIS COURT'S PRESENT OPINION ADOPTS THE SAME
VIEW.  THERE ARE REFERENCES IN IT TO THE WAR EMERGENCY, AND YET THE
REASONING AND THE AUTHORITIES CITED SEEM TO INDICATE THAT THE
DELEGATION WOULD BE GOOD IN PEACETIME AND IN RESPECT OF PEACETIME
ADMINISTRATION.  AND THE EMERGENCY COURT OF APPEALS, IN SPITE OF ITS
DECISION IN TAYLOR V. BROWN, SUPRA, AND ITS STATEMENT IN PHILADELPHIA
COKE CO. V. BOWLES, 139 F.2D 349, THAT, AS THE ACT IS AN EXERCISE OF
THE WAR POWER AND THEREFORE DOES NOT DEPRIVE CITIZENS OF PROPERTY
WITHOUT DUE PROCESS, HAS, NEVERTHELESS, WEIGHED PROVISIONS OF THE ACT
AS AGAINST THE GUARANTY OF THE FIFTH AMENDMENT IN WILSON V. BROWN, 137
F.2D 348, AND IN AVANT V. BOWLES, 139 F.2D 702. 

I AM SURE THAT MY BRETHREN, NO MORE THAN I, WOULD SAY THAT CONGRESS
MAY SET ASIDE THE CONSTITUTION DURING WAR.  IF NOT, MAY IT SUSPEND ANY
OF ITS PROVISIONS?  THE QUESTION DESERVES A FAIR ANSWER.  MY VIEW IS
THAT IT MAY NOT SUSPEND ANY OF THE PROVISIONS OF THE INSTRUMENT.  WHAT
ANY OF THE BRANCHES OF GOVERNMENT DO IN WAR MUST FIND WARRANT IN THE
CHARTER AND NOT IN ITS NULLIFICATION, EITHER DIRECTLY OR STEALTHILY BY
EVASION AND EQUIVOCATION.  BUT IF THE COURT PUTS ITS DECISION ON THE
WAR POWER I THINK IT SHOULD SAY SO.  THE CITIZENS OF THIS COUNTRY WILL
THEN KNOW THAT IN WAR THE FUNCTION OF LEGISLATION MAY BE SURRENDERED TO
AN AUTOCRAT WHOSE "JUDGMENT" WILL CONSTITUTE THE LAW; AND THAT HIS
JUDGMENT WILL BE ENFORCED BY FEDERAL OFFICIALS PURSUANT TO CIVIL
JUDGMENTS, AND CRIMINAL PUNISHMENTS WILL BE IMPOSED BY COURTS AS
MATTERS OF ROUTINE. 

IF, ON THE CONTRARY, SUCH A DELEGATION AS IS HERE DISCLOSED IS TO BE
SUSTAINED EVEN IN PEACETIME, WE SHOULD KNOW IT. 

FN1  THE ACT GIVES THE ADMINISTRATOR NO POWER WITH RESPECT TO WAGES,
AND LIMITS HIS POWERS AS RESPECTS FISHERY COMMODITIES (50 U.S.C. SEC.
902(I)), AND AGRICULTURAL COMMODITIES (50 U.S.C. SEC. 903). 

FN2  IN CITING CASES DECIDED BY THAT COURT, I DO SO WITH NO THOUGHT
THAT IN CONSTRUING THE ACT'S PROVISIONS THAT COURT HAS ERRED.  ON THE
CONTRARY, I CITE ITS INTERPRETATIONS OF THE STATUTE AS SUPPORTING MY
VIEWS THAT, AS PROPERLY CONSTRUED, THE ACT IS INVALID. 

FN3  ARMOUR & CO. V. BROWN, 137 F.2D 233; MONTGOMERY WARD & CO. V.
BOWLES, 138 F.2D 669; HILLCREST TERRACE CORP. V. BROWN, 137 F.2D 663. 

MR. JUSTICE RUTLEDGE, DISSENTING: 

I AGREE WITH THE COURT'S CONCLUSIONS UPON THE SUBSTANTIVE ISSUES. 
BUT I AM UNABLE TO BELIEVE THAT THE TRIAL AFFORDED THE PETITIONERS
CONFORMED TO CONSTITUTIONAL REQUIREMENTS.  THE MATTER IS OF SUCH
IMPORTANCE AS REQUIRES A STATEMENT OF THE REASONS FOR DISSENT. 

THE EMERGENCY PRICE CONTROL LEGISLATION IS UNUSUAL, IF NOT UNIQUE. 
IT IS STREAMLINED LAW IN BOTH SUBSTANCE AND PROCEDURE.  MORE THAN ANY
OTHER LEGISLATION EXCEPT PERHAPS THE SELECTIVE SERVICE ACT, IN THE
COMBINED EFFECT OF ITS PROVISIONS IT ATTENUATES THE RIGHTS OF AFFECTED
INDIVIDUALS.  THE CONGRESS REGARDED THIS AS NECESSARY, THOUGH IT SOUGHT
TO PRESERVE AS MUCH OF INDIVIDUAL RIGHT AS IT FELT WAS CONSISTENT WITH
CONTROLLING WARTIME INFLATION.  TO THAT JUDGMENT WE OWE ALL DEFERENCE,
SAVING ONLY WHAT WE OWE TO THE CONSTITUTION. 

WAR SUCH AS WE NOW FIGHT CALLS INTO PLAY THE FULL POWER OF GOVERNMENT
IN EXTREME EMERGENCY.  IT COMPELS INVENTION OF LEGAL, AS OF MARTIAL
TOOLS ADEQUATE FOR THE TIMES' NECESSITY.  INEVITABLY SOME WILL BE
STRANGE, IF ALSO LIFESAVING, INSTRUMENTS FOR A PEOPLE ACCUSTOMED TO
PEACE AND THE NORMAL WORKING OF CONSTITUTIONAL LIMITATIONS.  CITIZENS
MUST SURRENDER OR FOREGO EXERCISING RIGHTS WHICH IN OTHER TIMES COULD
NOT BE IMPAIRED.  BUT NOT ALL ARE LOST.  WAR EXPANDS THE NATION'S
POWER.  BUT IT DOES NOT SUSPEND THE JUDICIAL DUTY TO GUARD WHATEVER
LIBERTIES WILL NOT IMPERIL THE PARAMOUNT NATIONAL INTEREST. 

         I. 

JUDGED BY NORMAL PEACETIME STANDARDS, OVER-ALL NATIONWIDE PRICE
CONTROL HARDLY HAS ACCEPTED PLACE IN OUR INSTITUTIONS.  NOTWITHSTANDING
THE CONSIDERABLE EXPANSION OF RECENT YEARS IN THIS RESPECT, THE
EXTENSION HAS BEEN PIECEMEAL.  FN1  UNTIL NOW IT HAS NOT ENVELOPED THE
ENTIRE ECONOMY.  FN2  WHETHER CONTROL SO EXTENSIVE MIGHT BE UPHELD IN
SOME EMERGENCY NOT CREATED BY WAR NEED NOT NOW BE DECIDED.  THAT IT CAN
BE SUPPORTED IN THE PRESENT CIRCUMSTANCES AND FOR THE DECLARED PURPOSES
THERE CAN BE NO DOUBT.  IT IS ENOUGH, AS THE COURT POINTS OUT, THAT
LEGAL FOUNDATION EXISTS IN THE NATION'S POWER TO MAKE WAR, AS THIS HAS
BEEN GIVEN TO CONGRESS AND THE CHIEF EXECUTIVE.  CF. HIRABAYASHI V.
UNITED STATES, 320 U.S. 81.  FN3 

THE FOUNDATION HAS RELEVANCE FOR EACH OF THE ISSUES.  AND GENERALLY
IT HAS SIGNIFICANCE FOR THE APPLICATION OF PEACETIME PRECEDENTS. 
DECISIONS MADE THEN WITH LIMITATIONS, EXPLICIT OR IMPLIED, NOT AFFECTED
BY INFLUENCE OF THE WAR POWER AND THE CONDITIONS OF A STATE OF WAR,
CANNOT BE WHOLLY CONCLUSIVE IN THEIR LIMITING EFFECT UPON THE EXERCISE
OF WAR-MAKING AUTHORITY.  CARE MUST BE TAKEN THEREFORE, IN APPLYING
THEM, BOTH TO SEE THAT THEY ARE OBSERVED SO FAR AS THE DOMINANT
NECESSITY PERMITS AND TO BE EQUALLY SURE THEY ARE NOT MISAPPLIED TO
HAMSTRING ESSENTIAL AUTHORITY.  FN4 

AS IT IS WITH THE SUBSTANTIVE CONTROL, SO IT IS WITH DELEGATING
LEGISLATIVE POWER.  WAR BEGETS NECESSITIES FOR THIS, AS FOR IMPOSING
SUBSTANTIVE CONTROLS, NOT REQUIRED BY THE LESSER EXIGENCIES OF MORE
NORMAL PERIODS.  IN THIS RESPECT CERTAINLY THERE IS AS MUCH ROOM FOR
DIFFERENCE AS EXISTS WHEN CONGRESS IS DEALING WHOLLY WITH INTERNAL
MATTERS AND WHEN IT IS ACTING WITH THE PRESIDENT ABOUT FOREIGN
AFFAIRS.  CF. UNITED STATES V. CURTISS-WRIGHT EXPORT CORP., 299 U.S.
304.  NOT ONLY THE BROADER POWER OF CONGRESS, BUT ITS CONJUNCTION IN
THE PARTICULAR DELEGATION WITH THE WIDER AUTHORITY OF THE PRESIDENT,
BOTH AS CHIEF MAGISTRATE AND AS COMMANDER-IN-CHIEF, GOES TO SUSTAIN THE
GREATER DELEGATION.  CF. HIRABAYASHI V. UNITED STATES, SUPRA.  BUT THE
PRESENT LEGISLATION, AS THE COURT'S OPINION DEMONSTRATES, DOES NOT GO
BEYOND THE LIMITS ALLOWED BY PEACETIME PRECEDENTS IN THE SUBSTANTIVE
DELEGATION.  FN5

      II. 

MY DIFFICULTY ARISES FROM THE ACT'S PROCEDURAL PROVISIONS.  THEY TOO
ARE UNUSUAL.  THAT IS TRUE, THOUGH EACH SAVE ONE HAS BEEN USED BEFORE,
AND SUSTAINED, IN SEPARATE APPLICATIONS.  NO PREVIOUS LEGISLATION HAS
PRESENTED QUITE THIS COMBINATION OF PROCEDURAL DEVICES.  FN6  IN THE
COMBINATION, IF IN NOTHING MORE, UNIQUE QUALITY WOULD BE FOUND.  BUT
THERE IS MORE. 

CONGRESS SOUGHT TO ACCOMPLISH TWO PROCEDURAL OBJECTIVES.  ONE WAS TO
AFFORD A NARROW BUT SUFFICIENT METHOD FOR SECURING REVIEW AND REVISION
OF THE REGULATIONS.  AT THE SAME TIME, THE ACT CREATED BROAD AND READY
METHODS FOR ENFORCEMENT.  THE SHORT EFFECT OF THE PROCEDURE IS TO GIVE
THE INDIVIDUAL A SINGLE CHANNEL FOR QUESTIONING THE VALIDITY OF A
REGULATION, THROUGH THE PROTEST PROCEDURE AND THE EMERGENCY COURT OF
APPEALS, WITH REVIEW OF ITS DECISIONS HERE ON CERTIORARI.  SEC. 204. 
ON THE OTHER HAND, THE VARIED AND WIDELY AVAILABLE MEANS FOR
ENFORCEMENT INCLUDE CRIMINAL PROCEEDINGS, SUITS IN EQUITY, AND SUITS
FOR RECOVERY OF CIVIL PENALTIES, IN THE FEDERAL DISTRICT COURTS AND IN
THE STATE COURTS.  SEC. 205(A), (B), (C).  SEE ALSO SEC. 205(D), (E),
(F).  FN7  AND IN ALL THESE ENFORCEMENT PROCEEDINGS THE MANDATE OF SEC.
204(D) IS THAT THE COURT SHALL HAVE NO "JURISDICTION OR POWER TO
CONSIDER THE VALIDITY OF" A REGULATION, ORDER OR PRICE SCHEDULE.  THE
STATUTE THUS AFFORDS THE INDIVIDUAL, TO QUESTION A REGULATION'S
VALIDITY, ONE ROUTE AND THAT A VERY NARROW ONE, OPEN ONLY BRIEFLY.  THE
ADMINISTRATOR AND OTHERS, TO ENFORCE IT, HAVE MANY.  AND IN THE
ENFORCEMENT PROCEEDINGS THE ISSUES ARE CUT DOWN SO THAT, IN A PRACTICAL
SENSE, LITTLE ELSE THAN THE FACT WHETHER A VIOLATION OF THE REGULATION
AS WRITTEN HAS OCCURRED OR IS THREATENED MAY BE INQUIRED INTO.  FN8 

DISPARITY IN REMEDIAL AND PENAL MEASURES DOES NOT NECESSARILY
INVALIDATE THE PROCEDURE, THOUGH IT HAS RELEVANCE TO ADEQUACY OF THE
REMEDY ALLOWED THE INDIVIDUAL.  FN9  CONGRESS HAS BROAD DISCRETION TO
OPEN AND CLOSE THE DOORS TO LITIGATION.  IN DOING SO IT MAY TAKE
ACCOUNT OF THE NECESSITIES PRESENTED BY SUCH A SITUATION AS IT WAS
DEALING WITH HERE.  TO FOLLOW THE USUAL COURSE OF LEGISLATION AND
PERMIT CHALLENGE BY RESTRAINING ORDERS, INJUNCTIONS, STAY ORDERS AND
THE NORMAL PROCESSES OF LITIGATION WOULD HAVE BEEN, IN THIS CASE, TO
LOCK THE BARN DOOR AFTER THE HORSE HAD BEEN STOLEN.  THERE WAS
THEREFORE COMPELLING REASON FOR CONGRESS TO BALANCE THE SCALES OF
LITIGATION UNEVENLY, IF ONLY IT DID NOT GO TOO FAR.  IN NO OTHER WAY
COULD IT PROTECT THE PARAMOUNT NATIONAL INTEREST.  IF THE RESULT,
WITHIN THE PERMISSIBLE LIMITS, IS HARSH OR INCONVENIENT FOR THE
INDIVIDUAL, THAT IS BUT PART OF THE PRICE HE, WITH ALL OTHERS, MUST PAY
FOR LIVING IN A NATION WHICH ORDINARILY GIVES HIM SO MUCH OF PROTECTION
BUT IN A WORLD WHICH HAS NOT BEEN ORGANIZED TO GIVE IT SECURITY AGAINST
EVENTS SO DISRUPTIVE OF DEMOCRATIC PROCEDURES. 

I HAVE NO DIFFICULTY WITH THE PROVISION WHICH CONFERS JURISDICTION
UPON THE EMERGENCY COURT OF APPEALS TO DETERMINE THE VALIDITY OF PRICE
REGULATIONS OR, IF THAT HAD BEEN ALL, WITH THE MANDATE WHICH MAKES ITS
JURISDICTION IN THAT RESPECT EXCLUSIVE.  EQUALLY CLEAR IS THE POWER OF
CONGRESS TO DEPRIVE THE OTHER FEDERAL COURTS OF JURISDICTION TO ISSUE
STAY ORDERS, RESTRAINING ORDERS, INJUNCTIONS OR OTHER RELIEF TO PREVENT
THE OPERATION OF PRICE REGULATIONS OR TO SET THEM ASIDE.  SO MUCH MAY
BE RESTED ON CONGRESS' PLENARY AUTHORITY TO DEFINE AND CONTROL THE
JURISDICTION OF THE FEDERAL COURTS.  CONSTITUTION, ARTICLE III, SEC. 2;
LOCKERTY V. PHILLIPS, 319 U.S. 182.  IT MAY BE TAKEN TOO, FOR THE
PURPOSES OF THIS CASE, THAT CONGRESS' POWER TO CHANNEL ENFORCEMENT OF
FEDERAL AUTHORITY THROUGH THE FEDERAL COURTS SUSTAINS THE LIKE
PROHIBITIONS IT HAS PLACED ON THE STATE COURTS.  FN10  WITHOUT MORE,
THE STATUTE'S PROVISIONS WOULD SEEM TO BE UNQUESTIONABLY WITHIN THE
CONGRESSIONAL POWER.  CF. MYERS V. BETHLEHEM SHIPBUILDING CORP., 303
U.S. 41. 

CONGRESS HOWEVER WAS NOT CONTENT TO CREATE A SINGLE NATIONAL
TRIBUNAL, GIVE IT EXCLUSIVE JURISDICTION TO DETERMINE ALL CASES ARISING
UNDER THE STATUTE, AND DENY JURISDICTION OVER THEM TO ALL OTHER
COURTS.  FN11  IT PROVIDED FOR ENFORCEMENT BY CIVIL AND CRIMINAL
PROCEEDINGS IN THE FEDERAL DISTRICT COURTS AND IN THE STATE COURTS
THROUGHOUT THE COUNTRY. 

THIS, TOO, IT COULD DO, THOUGH ONLY IF ADEQUATE PROCEEDINGS, IN THE
CONSTITUTIONAL SENSE, WERE AUTHORIZED.  AND I AGREE THAT THE ENFORCING
JURISDICTION WOULD NOT BE MADE INADEQUATE MERELY BY THE FACT THAT NO
STAY ORDER OR OTHER RELIEF COULD BE HAD PENDING THE OUTCOME OF
LITIGATION.  CONFRONTED AS THE NATION WAS WITH THE IMMINENT DANGER OF
INFLATION AND THEREFORE THE NECESSITY THAT PRICE CONTROLS SHOULD BECOME
EFFECTIVE AT ONCE AND CONTINUE SO WITHOUT INTERRUPTION AT LEAST UNTIL
INVALIDATED IN PARTICULAR INSTANCES, CONGRESS COULD REQUIRE INDIVIDUALS
TO SUSTAIN, IN DEFERENCE TO THE PARAMOUNT PUBLIC INTEREST, WHATEVER
HARM MIGHT ENSUE DURING THE PERIOD OF LITIGATION AND UNTIL EACH HAD
DEMONSTRATED THE INVALIDITY OF THE REGULATION AS IT AFFECTED HIMSELF. 
FN12  RUNAWAY INFLATION COULD NOT HAVE BEEN AVOIDED IN ANY OTHER WAY. 
THE LID HAD TO GO ON, GO ON TIGHT AND STAY TIGHT.  THIS NECESSITY
UNITED WITH THE GENERAL PRESUMPTION OF VALIDITY WHICH ATTACHES TO
LEGISLATION  FN13  AND CONGRESS' POWER TO CONTROL THE JURISDICTION OF
THE COURTS TO SUSTAIN ITS DENIAL OF POWER TO ALL COURTS, INCLUDING THE
ENFORCING COURTS, THE EMERGENCY COURT AND THIS ONE,  FN14  TO SUSPEND
OPERATION OF THE REGULATIONS PENDING FINAL DETERMINATION OF VALIDITY. 

THE CRUX OF THIS CASE COMES, AS I SEE IT, IN THE QUESTION WHETHER
CONGRESS CAN CONFER JURISDICTION UPON FEDERAL AND STATE COURTS IN THE
ENFORCEMENT PROCEEDINGS, MORE PARTICULARLY THE CRIMINAL SUIT, AND AT
THE SAME TIME DENY THEM "JURISDICTION OR POWER TO CONSIDER THE
VALIDITY" OF THE REGULATIONS FOR WHICH ENFORCEMENT IS THUS SOUGHT. 
THIS QUESTION WHICH THE COURT NOW SAYS "PRESENTS NO NOVEL
CONSTITUTIONAL ISSUE" WAS EXPRESSLY AND CAREFULLY RESERVED IN LOCKERTY
V. PHILLIPS, SUPRA.  THE PROHIBITION IS THE STATUTE'S MOST NOVEL
FEATURE.  IN COMBINATION WITH OTHERS IT GIVES THE PROCEDURE A
CULMINATING SUMMARY TOUCH AND PRESENTS QUESTIONS DIFFERENT FROM THOSE
ARISING FROM THE OTHER FEATURES.    THE PROHIBITION IS UNQUALIFIED.  IT
MAKES NO DISTINCTION BETWEEN REGULATIONS INVALID ON CONSTITUTIONAL
GROUNDS AND OTHERS MERELY DEPARTING IN SOME RESPECT FROM STATUTORY
LIMITATIONS, WHICH CONGRESS MIGHT WAIVE, OR BY THE CRITERION WHETHER
INVALIDITY APPEARS ON THE FACE OF THE REGULATION OR ONLY BY PROOF OF
FACTS.  IF THE PURPOSE AND EFFECT ARE TO FORBID THE ENFORCING COURT TO
CONSIDER ALL QUESTIONS OF VALIDITY AND THUS TO REQUIRE IT TO ENFORCE
REGULATIONS WHICH ARE OR MAY BE INVALID FOR CONSTITUTIONAL REASONS,
DOUBT ARISES IN TWO RESPECTS.  FIRST, BROAD AS IS CONGRESS' POWER TO
CONFER OR WITHHOLD JURISDICTION, THERE HAS BEEN NONE HERETOFORE TO
CONFER IT AND AT THE SAME TIME DEPRIVE THE PARTIES AFFECTED OF
OPPORTUNITY TO CALL IN QUESTION IN A CRIMINAL TRIAL WHETHER THE LAW, BE
IT STATUTE OR REGULATION,  FN15  UPON WHICH THE JURISDICTION IS
EXERCISED SQUARES WITH THE FUNDAMENTAL LAW.  NOR HAS IT BEEN HELD THAT
CONGRESS CAN FORBID A COURT INVESTED WITH THE JUDICIAL POWER UNDER
ARTICLE III TO CONSIDER THIS QUESTION, WHEN CALLED UPON TO GIVE EFFECT
TO A STATUTORY OR OTHER MANDATE. 

IT IS ONE THING FOR CONGRESS TO WITHHOLD JURISDICTION.  IT IS
ENTIRELY ANOTHER TO CONFER IT AND DIRECT THAT IT BE EXERCISED IN A
MANNER INCONSISTENT WITH CONSTITUTIONAL REQUIREMENTS OR, WHAT IN SOME
INSTANCES MAY BE THE SAME THING, WITHOUT REGARD TO THEM.  ONCE IT IS
HELD THAT CONGRESS CAN REQUIRE THE COURTS CRIMINALLY TO ENFORCE
UNCONSTITUTIONAL LAWS OR STATUTES, INCLUDING REGULATIONS, OR TO DO SO
WITHOUT REGARD FOR THEIR VALIDITY, THE WAY WILL HAVE BEEN FOUND TO
CIRCUMVENT THE SUPREME LAW AND, WHAT IS MORE, TO MAKE THE COURTS
PARTIES TO DOING SO.  THIS CONGRESS CANNOT DO. THERE ARE LIMITS TO THE
JUDICIAL POWER.  CONGRESS MAY IMPOSE OTHERS.  AND IN SOME MATTERS
CONGRESS OR THE PRESIDENT HAS FINAL SAY UNDER THE CONSTITUTION.  BUT
WHENEVER THE JUDICIAL POWER IS CALLED INTO PLAY, IT IS RESPONSIBLE
DIRECTLY TO THE FUNDAMENTAL LAW AND NO OTHER AUTHORITY CAN INTERVENE TO
FORCE OR AUTHORIZE THE JUDICIAL BODY TO DISREGARD IT.  THE PROBLEM
THEREFORE IS NOT SOLELY ONE OF INDIVIDUAL RIGHT OR DUE PROCESS OF LAW. 
IT IS EQUALLY ONE OF THE SEPARATION AND INDEPENDENCE OF THE POWERS OF
GOVERNMENT AND OF THE CONSTITUTIONAL INTEGRITY OF THE JUDICIAL PROCESS,
MORE ESPECIALLY IN CRIMINAL TRIALS. 

III. 

THE IDEA IS ENTIRELY NOVEL THAT REGULATIONS MAY HAVE A GREATER
IMMUNITY TO JUDICIAL SCRUTINY THAN STATUTES HAVE, WITH RESPECT TO THE
POWER OF CONGRESS TO REQUIRE THE COURTS TO ENFORCE THEM WITHOUT REGARD
TO CONSTITUTIONAL REQUIREMENTS.  AT A TIME WHEN ADMINISTRATIVE ACTION
ASSUMES MORE AND MORE OF THE LAW-MAKING FUNCTION,  FN16  IT WOULD SEEM
THE BALANCE OF ADVANTAGE, IF ANY, SHOULD BE THE OTHER WAY.  BUT THERE
IS NONE.  THE STATUTE HAS IMPACT UPON INDIVIDUALS ONLY THROUGH THE
REGULATIONS.  THEY ARE IN EFFECT PART OF THE ACT ITSELF, UNLESS
INVALID.  IF INVALID, THEY RULE, JUST AS THE STATUTE DOES, UNTIL SET
ASIDE.  AND, IN RESPECT TO CONSTITUTIONAL REQUIREMENTS, THEY HAVE NO
MORE IMMUNITY THAN THE STATUTE ITSELF.  FN17 

CLEARLY CONGRESS COULD NOT REQUIRE JUDICIAL ENFORCEMENT OF AN
UNCONSTITUTIONAL STATUTE.  THE SAME IS TRUE OF AN UNCONSTITUTIONAL
REGULATION.  AND IT IS CONCEDED THAT CONGRESS COULD NOT HAVE COMPELLED
JUDICIAL ENFORCEMENT OF ALL PRICE REGULATIONS, WITHOUT REGARD TO THEIR
VALIDITY, IF IT HAD NOT GIVEN OPPORTUNITY FOR ATTACK UPON THEM THROUGH
THE EMERGENCY COURT OR IF THAT OPPORTUNITY IS INADEQUATE.  BUT BECAUSE
THE OPPORTUNITY IS AFFORDED AND IS DEEMED ADEQUATE IN THE UNUSUAL
CIRCUMSTANCES, AT ANY RATE FOR SOME OF ITS PURPOSES, AND BECAUSE IT WAS
NOT FOLLOWED, THE COURT HOLDS THAT CRIMINAL ENFORCEMENT MUST BE GIVEN
AND THE ENFORCING COURT CANNOT CONSIDER THE QUESTION OF VALIDITY. 

IF I UNDERSTAND IT, THE ARGUMENT TO SUSTAIN THE CONVICTION, IN ITS
BROADEST FORM, RESTS UPON THE PROPOSITION THAT CONGRESS, BY PROVIDING
IN ONE PROCEEDING A CONSTITUTIONALLY ADEQUATE MODE FOR DECIDING UPON
THE VALIDITY OF A LAW OR REGULATION, AND REQUIRING THIS TO BE FOLLOWED
WITHIN A LIMITED TIME, CAN CUT OFF ALL OTHER RIGHT TO QUESTION IT AND
MAKE THAT DETERMINATION, OR THE FAILURE TO SECURE IT IN TIME,
CONCLUSIVE FOR ALL PURPOSES AND IN ALL OTHER PROCEEDINGS.  THE
PROPOSITION CANNOT BE ACCEPTED IN THAT BROAD FORM.  TO DO SO WOULD
MEAN, FOR INSTANCE, THAT IF IN THIS CASE A REGULATION HAD PRESCRIBED
ONE MAXIMUM PRICE FOR SALES BY MERCHANTS OF ONE RACE OR RELIGION AND A
LOWER ONE FOR DISTRIBUTORS OF ANOTHER, THE JUDICIAL POWER OF THE UNITED
STATES WOULD HAVE TO BE EXERCISED TO CONVICT THE LATTER FOR SELLING AT
THE FORMERS' PRICE, IF THEY HAD NOT AVAILED THEMSELVES OF THE LIMITED
REVIEW AFFORDED BY THIS ACT.  IT HARDLY WOULD BE CONSISTENT WITH
ACCEPTED IDEAS OF DUE PROCESS OR EQUAL PROTECTION FOR ANY COURT TO
IMPOSE PENALTY OR RESTRAINT IN SUCH A CASE.  FN18  AND I CANNOT IMAGINE
THIS COURT AS SUSTAINING SUCH A CONVICTION OR ANY OTHER AS IMPOSING IT.
FN19 

THE ILLUSTRATION IS EXTREME AND IMPROBABLE OF OCCURRENCE.  BUT IT
SERVES TO TEST THE BROAD CONTENTION.  SUCH A DOCTRINE ESTABLISHED AS
GENERALLY APPLICABLE WOULD CONTAIN SEEDS OF INFLUENCE TOO DANGEROUS FOR
ACCEPTANCE, MORE ESPECIALLY FOR THE DETERMINATION OF CRIMINAL MATTERS. 
NO AUTHORITY COMPELS OR ENJOINS THIS.  AND I AM UNWILLING TO GIVE THE
IDEA ADHERENCE IN PARTICULAR APPLICATIONS WITHOUT STATING QUALIFICATION
WHICH CONFINES ITS POSSIBLE EFFECTS TO SITUATIONS WHERE THE GRAVEST
DANGERS TO THE NATION'S INTEREST EXIST AND CANNOT BE ESCAPED IN ANY
OTHER WAY. 

THE QUESTION NARROWS THEREFORE TO THE INQUIRY, IN WHAT CIRCUMSTANCES
AND UNDER WHAT CONDITIONS MAY CONGRESS, BY OFFERING THE INDIVIDUAL A
SINGLE CHANCE TO CHALLENGE A LAW OR AN ORDER, FORECLOSE FOR HIM ALL
FURTHER OPPORTUNITY TO QUESTION IT, THOUGH REQUIRING THE COURTS TO
ENFORCE IT BY CRIMINAL PROCESSES?  THIS QUESTION IS THE MOST IMPORTANT
ONE IN THE CASE AND DEMANDS EXPLICIT ATTENTION.  "IT IS EASY ENOUGH TO
SAY THAT A PARTY HAS ENOUGH OF A REMEDY IF STATUTORY REVIEW OF THE
ORDER IS AVAILABLE AND IF HE DOES NOT CHOOSE TO EMPLOY THAT PROCEDURE
HE SHOULD BE FORECLOSED FROM RAISING ELSEWHERE THE QUESTIONS THAT COULD
HAVE BEEN RAISED IN THAT PROCEEDING."  FN20  BUT TO MAKE THIS EASY
ASSUMPTION IS AT ONCE TO DECIDE THE ROCKBOTTOM ISSUE AND, IN MY
OPINION, ONE THIS COURT HAS NOT DETERMINED HERETOFORE WITH EFFECTS UPON
THE CRIMINAL PROCESS LIKE THOSE PRODUCED IN THIS CASE.  FN21

              IV. 

IT IS TRUE THAT IN A VARIETY OF SITUATIONS AND FOR A VARIETY OF
REASONS A PERSON IS FORECLOSED FROM RAISING ISSUES, INCLUDING SOME
CONSTITUTIONAL ONES, WHERE HE HAS FAILED TO EXERCISE AN EARLIER
OPPORTUNITY.  THUS ORDINARILY ISSUES CANNOT BE RAISED ON APPEAL WHICH
WERE NOT PRESENTED IN THE TRIAL COURT.  AND A VARIANT IS THAT FEDERAL
QUESTIONS NOT RAISED IN THE STATE COURTS GENERALLY WILL NOT BE
CONSIDERED HERE.  FN22 

BUT SUCH INSTANCES OF FORECLOSURE, WHETHER LEGISLATIVE OR JUDICIAL IN
ORIGIN, DO NOT SUPPORT THE BROADER BASIS OF ARGUMENT IN THIS CASE.  TWO
THINGS ARE TO BE EMPHASIZED.  ONE IS THAT THE PREVIOUS OPPORTUNITY IS
IN AN EARLIER PHASE OF THE SAME PROCEEDING, NOT AS HERE A SEPARATE AND
INDEPENDENT ONE OF WHOLLY DIFFERENT CHARACTER.  IN OTHER WORDS, THE
DETERMINATION OF GUILT OR OTHER MATTER ULTIMATELY IN ISSUE IS NOT CUT
UP INTO TWO SEPARATE, DISTINCT AND INDEPENDENT PROCEEDINGS IN DIFFERENT
TRIBUNALS, IN WHICH NEITHER BODY HAS POWER TO CONSIDER AND DECIDE ALL
THE ISSUES, BUT EACH CAN DETERMINE THEM ONLY IN PART.  THE OTHER THING
FOR STRESS IS THAT THE FORECLOSURE BY FAILURE TO TAKE THE EARLIER
CHANCE IS NOT UNIVERSALLY EFFECTIVE.  AND THIS IS TRUE PARTICULARLY OF
CONSTITUTIONAL QUESTIONS, SOME OF WHICH MAY BE RAISED AT ANY TIME. 
FN23  WHILE CONGRESS HAS PLENARY POWER TO CONFER OR WITHHOLD APPELLATE
JURISDICTION, CF. EX PARTE MCCARDLE, 7 WALL.  506, IT HAS NOT SO FAR
BEEN HELD, AND IT DOES NOT FOLLOW, THAT CONGRESS CAN CONFER IT, YET
DENY THE APPELLATE COURT "POWER TO CONSIDER" CONSTITUTIONAL QUESTIONS
RELATING TO THE LAW IN ISSUE. 

IF THE FORECLOSURE IS NOT ALWAYS EFFECTIVE WHEN THE EARLIER PHASE OF
LITIGATION IS WHOLLY JUDICIAL, IT HARDLY SHOULD BE WHEN THIS CONSISTS
OF ADMINISTRATIVE OR OF BOTH ADMINISTRATIVE AND JUDICIAL PROCEEDINGS,
STILL LESS WHEN THESE ARE CIVIL IN CHARACTER AND THE LATER ENFORCEMENT
PHASE IS CRIMINAL.  IN THE ENFORCEMENT OF ADMINISTRATIVE ORDERS THE
COURTS HAVE BEEN ASSIDUOUS, PERHAPS AT TIMES EXTREMELY SO,  FN24  TO
SEE THAT CONSTITUTIONAL PROTECTIONS TO THE PERSONS AFFECTED ARE
OBSERVED.  BY TRIAL AND ERROR, WAYS HAVE BEEN FOUND TO GIVE THE
ADMINISTRATIVE PROCESS SCOPE FOR EFFECTIVE ACTION AND YET TO MAINTAIN
INDIVIDUAL SECURITY AGAINST ABUSE, ESPECIALLY IN RESPECT TO
CONSTITUTIONAL RIGHTS.  FN25  THE INSTANCES CLOSEST TO THE PROBLEM HERE
HAVE PROVIDED FOR ATTACHING PENALTIES, INCLUDING CRIMINAL SANCTIONS, TO
VIOLATIONS OF ORDERS.  BUT GENERALLY BY ONE METHOD OR ANOTHER MEANS
HAVE BEEN SUPPLIED FOR POSTPONING THEIR IMPACT, AT ANY RATE
IRREVOCABLY, UNTIL AFTER THE ORDER'S VALIDITY HAS BEEN ESTABLISHED. 
FN26  AND IN THAT EFFORT THIS COURT HAS JOINED.  FN27 

WHATEVER MAY BE THE LIMITATIONS ON JUDICIAL REVIEW IN CRIMINAL
PROCEEDINGS UNDER OTHER ADMINISTRATIVE ENFORCEMENT PATTERNS,  FN28  NO
ONE OF THESE ARRANGEMENTS GOES AS FAR AS THE COMBINATION PRESENTED BY
THIS ACT.  IT RESTRICTS THE INDIVIDUAL'S RIGHT TO REVIEW TO THE PROTEST
PROCEDURE AND APPEAL THROUGH THE EMERGENCY COURT OF APPEALS BOTH ARE
SHORT-CUT PROCEEDINGS, TRIMMED ALMOST TO THE BONE OF DUE PROCESS, EVEN
FOR WHOLLY CIVIL PURPOSES, AND PARED DOWN FURTHER BY A SHORT STATUTE OF
LIMITATIONS.  PROTEST MUST BE FILED WITHIN THE SIXTY-DAY PERIOD.  AFTER
THAT TIME, NO PROTEST CAN BE MADE AND NO REVIEW CAN BE HAD, EXCEPT UPON
GROUNDS ARISING LATER.  SEC. 203(A).  FN29  THE ONLY RIGHT IS TO SUBMIT
WRITTEN EVIDENCE AND ARGUMENT TO THE ADMINISTRATOR.  SEC. 203(C). 
THERE IS NONE TO PRESENT ADDITIONAL EVIDENCE TO THE COURT.  FN30
NECESSARILY THERE IS NONE OF CROSS-EXAMINATION.  NO COURT CAN SUSPEND
THE ORDER UNLESS OR UNTIL A JUDGMENT OF THE EMERGENCY COURT
INVALIDATING IT BECOMES FINAL.  FN31  THE PENALTIES, CIVIL AND
CRIMINAL, ATTACH AT ONCE ON VIOLATION AND, IT WOULD SEEM, UNTIL THE
CONTRARY IS DECIDED, WITH FINALITY.  FN32  AT ANY RATE, THAT IS THE
STATUTE'S PURPORT.  IN SHORT, THE STATUTE AS DRAWN MAKES NOT ONLY THE
REGULATION BUT ALSO THE PENALTIES IMMEDIATELY AND FULLY EFFECTIVE
WITHOUT REGARD TO WHETHER PROTEST IS MADE, THE PROTEST PROCEEDING IS
CARRIED TO CONCLUSION, OR WHAT THE CONCLUSION MAY BE, EXCEPT, AND THIS
IS BY INFERENCE, THAT VIOLATION AFTER THE ORDER FINALLY IS HELD INVALID
MAY NOT BE PUNISHABLE. 

THIS IS THE SCOPE AND REACH OF THE STATUTE.  IT IS GREATER THAN ANY
THIS COURT HERETOFORE HAS SUSTAINED.  FN33  IT PLACES THE AFFECTED
INDIVIDUAL JUST WHERE THE COURT, SPEAKING THROUGH MR. JUSTICE LAMAR IN
WADLEY SOUTHERN RY. CO. V. GEORGIA, 235 U.S. 651, 662, SAID HE COULD
NOT BE PUT:  "HE MUST EITHER OBEY WHAT MAY FINALLY BE HELD TO BE A VOID
ORDER, OR DISOBEY WHAT MAY ULTIMATELY BE HELD TO BE A LAWFUL ORDER." 
YET THE COURT HOLDS THIS SPECIAL PROCEEDING "ADEQUATE" AND THEREFORE
EFFECTIVE TO FORECLOSE ALL OPPORTUNITY FOR DEFENSE IN A CRIMINAL
PROSECUTION ON THE GROUND THE REGULATION IS VOID. 

THIS IS NO ANSWER.  A PROCEDURE SO SUMMARY, IMPOSING SUCH RISKS, DOES
NOT MEET THE REQUIREMENTS HERETOFORE CONSIDERED ESSENTIAL TO THE
DETERMINATION OR FORECLOSURE OF ISSUES MATERIAL TO GUILT IN CRIMINAL
CAUSES.  IT MAKES NO DIFFERENCE THAT PETITIONERS DID NOT FOLLOW THE
SPECIAL PROCEDURE.  THE VERY QUESTION, POSED IN THE COURT'S OWN TERMS,
IS WHETHER, IF THEY HAD FOLLOWED IT, THE REMEDY WOULD BE ADEQUATE
CONSTITUTIONALLY.  IT CANNOT BE, UNDER PREVIOUSLY ACCEPTED IDEAS, IF
FOR ONE WHO FOLLOWS IT TO A FAVORABLE JUDGMENT THE PENALTY YET MAY
FALL.  THAT QUESTION THE COURT DOES NOT DECIDE.  UNLESS IT IS DECIDED,
THE QUESTION OF ADEQUACY, IN ANY SENSE HERETOFORE RECEIVED, HAS NOT
BEEN DETERMINED, OR AN ENTIRELY NEW CONCEPTION OF ADEQUACY HAS BEEN
APPROVED. 

            V. 

BUT THERE IS A DEEPER FAULT, EVEN IF WE ASSUME WHAT NEITHER THE
STATUTE NOR THE COURT'S OPINION TODAY JUSTIFIES, THAT A POTENTIAL
OFFENDER WHO SUCCESSFULLY CHALLENGES THE CONSTITUTIONALITY OF A
REGULATION OR BEGINS A CHALLENGE ON CONSTITUTIONAL GROUNDS IN THE
EMERGENCY COURT AT ANY TIME BEFORE OR DURING THE CRIMINAL PROSECUTION,
CANNOT BE CONVICTED, AT LEAST UNTIL AFTER FINAL DECISION THAT THE ORDER
IS VALID.  THERE STILL REMAIN THOSE CASES WHERE HE HAS EITHER
CHALLENGED UNSUCCESSFULLY IN THE EMERGENCY COURT OR HAS NOT CHALLENGED
AT ALL.  IN THEM THE WOULD-BE OFFENDER IS SUBJECT TO CRIMINAL
PROSECUTION WITHOUT A RIGHT TO QUESTION IN THE CRIMINAL TRIAL THE
CONSTITUTIONALITY OF THE REGULATION ON WHICH HIS PROSECUTION AND
CONVICTION HINGE.  AND THIS SEEMS TO BE TRUE WITHOUT DISTINCTION AS TO
THE CHARACTER OF THE GROUND ON WHICH HE SEEKS TO MAKE THE ISSUE.  TO
SAY THAT THIS DOES NOT OPERATE UNCONSTITUTIONALLY ON THE ACCUSED
BECAUSE HE HAS THE CHOICE OF REFRAINING FROM VIOLATION OR OF TESTING
THE CONSTITUTIONAL QUESTIONS IN A CIVIL PROCEEDING BEFOREHAND ENTIRELY
MISSES THE POINT.  THE FACT IS THAT IF HE VIOLATES THE REGULATION HE
MUST BE CONVICTED, IN A TRIAL IN WHICH EITHER AN EARLIER AND SUMMARY
CIVIL DETERMINATION OR THE COMPLETE ABSENCE OF A DETERMINATION
FORECLOSES HIM ON A CRUCIAL CONSTITUTIONAL QUESTION.  IN SHORT, HIS
TRIAL FOR THE CRIME IS EITHER IN TWO PARTS IN TWO COURTS OR ON ONLY A
PORTION OF THE ISSUES MATERIAL TO GUILT IN ONE COURT.  THIS MAY BE ALL
VERY WELL FOR SOME CIVIL PROCEEDINGS.  BUT, SO FAR AS I KNOW, CRIMINAL
PROCEEDINGS OF THIS CHARACTER NEVER BEFORE HAVE RECEIVED THE SANCTION
OF CONGRESS OR OF THIS COURT.  THAT, LIKE MANY OTHER CRIMINALS, AN
OFFENDER HERE CAN BE PUNISHED FOR MAKING THE WRONG GUESS AS TO THE
CONSTITUTIONALITY OF THE REGULATION, I HAVE NO DOUBT.  BUT THAT, UNLIKE
ALL OTHER CRIMINALS, HE CAN BE CONVICTED ON A TRIAL IN TWO PARTS, ONE
SO SUMMARY AND CIVIL AND THE OTHER CRIMINAL OR, IN THE ALTERNATIVE, ON
A TRIAL WHICH SHUTS OUT WHAT MAY BE THE MOST IMPORTANT OF THE ISSUES
MATERIAL TO HIS GUILT, I DO DENY.    THE SIXTH AMENDMENT GUARANTEES TO
THE ACCUSED "IN ALL CRIMINAL PROSECUTIONS  ...  THE RIGHT TO A SPEEDY
AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED.  ...  "  BY ARTICLE III,
SEC. 2, "THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL
BE BY JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID
CRIMES SHALL HAVE BEEN COMMITTED.  ...  "  AND, BY THE SAME SECTION,
"THE JUDICIAL POWER," WHICH IS VESTED IN THE SUPREME AND INFERIOR
COURTS BY SEC. 1, "SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY,
ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES, AND
TREATIES MADE  ... UNDER THEIR AUTHORITY." 

BY THESE PROVISIONS THE PURPOSE HARDLY IS TO BE SUPPOSED TO AUTHORIZE
SPLITTING UP A CRIMINAL TRIAL INTO SEPARATE SEGMENTS, WITH SOME OF THE
ISSUES ESSENTIAL TO GUILT TRIABLE BEFORE ONE COURT IN THE STATE AND
DISTRICT WHERE THE CRIME WAS COMMITTED AND OTHERS, EQUALLY ESSENTIAL,
TRIABLE IN ANOTHER COURT IN A HIGHLY SUMMARY CIVIL PROCEEDING HELD
ELSEWHERE, OR TO DISPENSE WITH TRIAL ON THEM BECAUSE THAT PROCEEDING
HAS NOT BEEN FOLLOWED.  FN34  IF THE VALIDITY OF THE ORDER, ON
CONSTITUTIONAL OR OTHER GROUNDS, HAS ANY SUBSTANTIAL RELATIONSHIP TO
THE PETITIONERS' GUILT, AND IT CANNOT BE DENIED THAT IT DOES, THE SHORT
EFFECT OF THE PROCEDURE IS TO CHOP UP THEIR TRIAL INTO TWO SEPARATE,
SUCCESSIVE AND DISTINCT PARTS OR PROCEEDINGS, IN EACH OF WHICH ONLY
SOME OF THE ISSUES DETERMINATIVE OF GUILT CAN BE TRIED, THE TWO BEING
CONNECTED ONLY BY THE THREAD OF FINALITY WHICH RUNS FROM THE DECISION
OF THE FIRST INTO THE SECOND.  THE EFFECT IS TO SEGREGATE OUT OF THE
TRIAL PROPER ISSUES, WHETHER OF LAW OR OF FACT, RELATING TO THE
VALIDITY OF THE LAW FOR VIOLATION OF WHICH THE DEFENDANTS ARE CHARGED,
AND TO LEAVE TO THE CRIMINAL COURT ONLY THE DETERMINATION OF WHETHER A
VIOLATION OF THE REGULATION AS WRITTEN ACTUALLY TOOK PLACE AND WHETHER
IN SOME OTHER RESPECT THE STATUTE ITSELF IS INVALID.  IF CONGRESS CAN
REMOVE THESE QUESTIONS, IT CAN REMOVE ALSO ALL QUESTIONS OF VALIDITY OF
THE STATUTE OR, IT WOULD SEEM, OF LAW. 

THE CONSEQUENCES OF THIS SPLITTING HARDLY NEED FURTHER NOTING.  ON
FACTS AND ISSUES MATERIAL TO VALIDITY OF THE REGULATION THE PERSONS
CHARGED ARE DEPRIVED OF A FULL TRIAL IN THE STATE OR DISTRICT WHERE THE
CRIME OCCURS, EVEN IF THE EMERGENCY COURT SITS THERE, AS IT IS NOT
REQUIRED TO DO.  THEIR RIGHT TO TRY THOSE CONSTITUTIONAL ISSUES BOTH OF
FACT AND OF LAW ON WHICH A CRIMINAL CONVICTION ULTIMATELY WILL HINGE,
IS RESTRICTED RIGIDLY TO THE INTRODUCTION OF WRITTEN EVIDENCE BEFORE
THE ADMINISTRATOR IN A PROCEEDING BARELY ADEQUATE, EVEN UNDER SPECIAL
CIRCUMSTANCES LIKE THESE, TO MEET THE REQUIREMENTS OF DUE PROCESS OF
LAW IN CIVIL PROCEEDINGS.  THE COURT WHICH MAKES THE DECISION ON THESE
ISSUES CANNOT CONSIDER THE FACTS CONSTITUTING THE VIOLATION.  IT HAS NO
POWER TO PASS JUDGMENT OF GUILTY OR NOT GUILTY UPON THE WHOLE OF THE
EVIDENCE.  IT CAN ONLY PRONOUNCE THE LAW VALID OR INVALID IN A SETTING
WHOLLY APART FROM ANY CHARGE OF CRIME, FROM THE FACTS ALLEGED AS ITS
COMMISSION, AND FROM THE USUAL PROTECTIONS WHICH SURROUND ITS TRIAL. 

ON THE OTHER HAND THE SPECIAL TRIBUNAL'S JUDGMENT, RENDERED IT MAY BE
ON DISPUTED FACTS AS WELL AS LAW, BECOMES BINDING AGAINST THE ACCUSED,
IN THE LATER PROCEEDING.  HE CANNOT THEN DISPUTE IT, REGARDLESS OF
WHETHER MEANWHILE THE FACTS HAVE CHANGED  FN35  OR NEW AND ADDITIONAL
EVIDENCE HAS BEEN DISCOVERED AND MIGHT BE TENDERED WITH CONCLUSIVE
EFFECT, IF IT WERE ADMISSIBLE.  HE CAN TENDER NO EVIDENCE ON WHAT MAY
BE THE MOST VITAL ISSUE IN HIS CASE AND ONE, IT MAY LIKEWISE BE, THAT
THE EVIDENCE THEN AVAILABLE WOULD SUSTAIN OVERWHELMINGLY.  THE TRIAL
COURT MUST SHUT ITS EYES TO ALL SUCH OFFERS OF PROOF AND, MOREOVER, TO
ANY SUCH ISSUE OF LAW. 

              VI. 

A PROCEDURE SO PIECEMEAL, SO CHOPPED UP, SO DISRUPTIVE OF
CONSTITUTIONAL GUARANTIES IN RELATION TO TRIALS FOR CRIME, SHOULD NOT
AND, IN MY JUDGMENT, CANNOT BE VALIDATED, AS TO SUCH PROCEEDINGS, UNDER
THE CONSTITUTION.  EVEN WAR DOES NOT SUSPEND THE PROTECTIONS WHICH ARE
INHERENTLY PART AND PARCEL OF OUR CRIMINAL PROCESS.  SUCH A DISSECTION
OF THE TRIAL FOR CRIME COULD BE SUPPORTED, UNDER OUR SYSTEM, ONLY UPON
SOME SUCH NOTIONS AS WAIVER AND ESTOPPEL OR RES JUDICATA, WHETHER OR
NOT EMBODIED IN LEGISLATION.  FN36  THESE TOO ARE STRANGE AND
INADEQUATE VEHICLES FOR TRYING WHETHER THE CITIZEN HAS BEEN GUILTY OF
CRIMINAL CONDUCT.  THEY BAR DEFENSE, WHILE KEEPING PROSECUTION OPEN,
BEFORE IT BEGINS.  RES JUDICATA, BY VIRTUE OF A JUDGMENT IN SOME PRIOR
CIVIL PROCEEDING, WHERE DIFFERENT CONSTITUTIONAL GUARANTIES RELATING TO
THE MODE AND COURSE OF TRIAL HAVE PLAY, HAS NOT DONE DUTY HERETOFORE TO
REPLACE EITHER PROOF OF FACTS BEFORE A JURY OR DECISION OF
CONSTITUTIONAL QUESTIONS NECESSARY TO MAKE UP THE SUM OF GUILT IN THE
CRIMINAL PROCEEDING ITSELF.  CONGRESS CAN INVADE THE JUDICIAL FUNCTION
IN CRIMINAL CASES NO MORE BY COMPELLING THE COURT TO DISPENSE WITH
PROOF, JURY TRIAL OR OTHER CONSTITUTIONALLY REQUIRED CHARACTERISTICS
THAN IT CAN BY DENYING ALL EFFECT OF FINALITY TO JUDICIAL JUDGMENTS. 
CF. SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, CONCURRING OPINION AT
167-168.  AND WHILE, AS NOTED ABOVE, NOTIONS OF WAIVER AND ESTOPPEL
HAVE HAD PLACE IN CRIMINAL PROCEEDINGS TO AN EXTENT NOT WHOLLY DEFINED,
IN SOME INSTANCES HARSHLY AND ARTIFICIALLY,  FN37  THEY HAVE NOT HAD
EFFECT HERETOFORE TO ENABLE CONGRESS TO FORCE A WAIVER OF DEFENSE UPON
THE INDIVIDUAL BY OFFERING A CHOICE BETWEEN TWO KINDS OF TRIAL, NEITHER
OF WHICH SATISFIES CONSTITUTIONAL REQUIREMENTS FOR CRIMINAL TRIALS. 
CERTAINLY WHEN THE CONSEQUENCES ARE SO NOVEL AND FAR REACHING AS THEY
MAY BE UNDER THIS PROCEDURE, BOTH FOR THE INDIVIDUAL AND FOR THE
JUDICIAL SYSTEM, THESE CONCEPTIONS SHOULD NOT BE GIVEN LEGAL
ESTABLISHMENT TO BRING THEM INTO BEING. 

TO STATE THE QUESTION OFTEN IS TO DECIDE IT.  AND IT MAY DO THIS BY
FAILURE TO REVEAL FULLY WHAT IS AT STAKE.  THE QUESTION IS NOT MERELY
WHETHER THE PROTEST PROCEEDING IS ADEQUATE IN THE CONSTITUTIONAL SENSE
FOR SOME OF THE PURPOSES PERTINENT TO THAT PROCEEDING.  IT IS RATHER
WHAT EFFECT SHALL BE GIVEN TO THE CIVIL DETERMINATION IN THE LATER AND
ENTIRELY DIFFERENT CRIMINAL TRIAL.  IT IS WHETHER, BY SUBSTITUTING THAT
CIVIL PROCEEDING FOR DECISION OF BASIC ISSUES IN THE CRIMINAL TRIAL
ITSELF, CONGRESS CAN FORECLOSE THE ACCUSED FROM HAVING THEM DECIDED IN
THAT TRIAL AND THEREBY DEPRIVE HIM OF THE PROTECTIONS IN TRIAL
GUARANTEED ALL PERSONS CHARGED WITH CRIME AND THUS OF FULL AND ADEQUATE
DEFENSE.  IT IS NOT THE EQUIVALENT OF THAT SORT OF DEFENSE TO FORCE ONE
TO INITIATE A CURTAILED CIVIL SUIT OR TO CUT HIM OFF SHORTLY FROM ALL
DEFENSE ON THE ISSUES ALLOCATED TO IT, IF HE DOES NOT DO SO.  AGAIN,
THE QUESTION IS NOT MERELY WHETHER THE INDIVIDUAL CAN WAIVE HIS
CONSTITUTIONAL TRIAL OF THE ISSUE OF VALIDITY.  IT IS RATHER WHETHER
CONGRESS CAN FORCE HIM TO DO SO IN THE MANNER ATTEMPTED AND, BEYOND
THIS, WHETHER HE AND CONGRESS TOGETHER, IN THE COMBINED EFFECTS OF WHAT
THEY DO, CAN SO STRIP THE CRIMINAL FORUM OF ITS POWER AND OF ITS DUTY
TO ABIDE THE LAW OF THE LAND.  AND IF THE ISSUE IS FURTHER WHETHER
CONGRESS CAN DO THIS IN SOME SITUATIONS, RESPECTING SOME ISSUES, UNDER
MORE USUAL SAFEGUARDS, THE QUESTION REQUIRES ATTENTION TO THESE
IMPORTANT LIMITATIONS.  FN38 

THE PROCEDURAL PATTERN IS ONE WHICH MAY BE ADAPTED TO THE TRIAL OF
ALMOST ANY CRIME.  ONCE APPROVED, IT IS BOUND TO SPAWN PROGENY.  IF IN
ONE CASE CONGRESS THUS CAN WITHDRAW FROM THE CRIMINAL COURT THE POWER
TO CONSIDER THE VALIDITY OF THE REGULATIONS ON WHICH THE CHARGE IS
BASED, IT CAN DO SO FOR OTHER CASES, UNLESS LIMITATIONS ARE POINTED OUT
CLEARLY AND SPECIFICALLY.  AND IT CAN DO SO FOR STATUTES AS WELL.  IN
SHORT THE WAY WILL HAVE BEEN FOUND TO AVOID, IF NOT ALTOGETHER THE
POWER OF THE COURTS TO REVIEW LEGISLATION FOR CONSISTENCY WITH THE
CONSTITUTION,  FN39  THEN IN PART AT LEAST THEIR OBLIGATION TO OBSERVE
ITS COMMANDS AND MORE ESPECIALLY THE GUARANTEED PROTECTIONS OF PERSONS
CHARGED WITH CRIME IN THE TRIAL OF THEIR CAUSES.  THIS IS NOT MERELY
CONTROL OR DEFINITION OF JURISDICTION.  IT IS RATHER UNWARRANTED
ABRIDGEMENT OF THE JUDICIAL POWER IN THE CRIMINAL PROCESS, UNLESS AT
THE VERY LEAST IT IS CONFINED SPECIFICALLY TO SITUATIONS WHERE THE
SPECIAL PROCEEDING PROVIDES A FAIR AND EQUAL SUBSTITUTE FOR FULL
DEFENSE IN THE CRIMINAL TRIAL OR OTHER ADEQUATE SAFEGUARD IS AFFORDED
AGAINST PUNISHMENT FOR VIOLATING AN ORDER WHICH ITSELF VIOLATES OR MAY
VIOLATE BASIC RIGHTS.  SO MUCH SHOULD NOT BE ACCOMPLISHED MERELY BY
GIVING TO THE FAILURE TO TAKE ADVANTAGE OF OPPORTUNITY FOR SUMMARY
CIVIL DETERMINATION, COUPLED WITH A SHORT STATUTE OF LIMITATIONS UPON
ITS AVAILABILITY, THE EFFECT OF A FULL AND FINAL CRIMINAL
ADJUDICATION.  TO DO THIS HARDLY OBSERVES THE SUBSTANCE OF "ADEQUACY"
IN CRIMINAL TRIALS. 

FROM WHAT HAS BEEN SAID IT SEEMS CLEAR THAT CONGRESS CANNOT FORBID
THE ENFORCING COURT, EXERCISING THE CRIMINAL JURISDICTION, TO CONSIDER
THE CONSTITUTIONAL VALIDITY OF AN ORDER INVALID ON ITS FACE.  ANY OTHER
VIEW WOULD PERMIT CONGRESS TO COMPEL THE COURTS TO ENFORCE
UNCONSTITUTIONAL LAWS.  NOR, IN MY OPINION, CAN CONGRESS FORBID
CONSIDERATION OF VALIDITY IN ALL CASES, IF IT CAN IN ANY, WHERE THE
INVALIDITY APPEARS ONLY FROM PROOF OF FACTS EXTRINSIC TO THE
REGULATION.  AGAIN THE RACIAL OR RELIGIOUS LINE IS OBVIOUS AND
PERTINENT.  IF, FOR INSTANCE, ONE CHARGED CRIMINALLY WITH VIOLATING THE
REGULATION SHOULD TENDER PROOF IT WAS BEING ENFORCED IN A MANNER TO
DENY HIM THE EQUAL PROTECTION OF THE LAWS, BECAUSE OF HIS RACIAL OR
RELIGIOUS CONNECTIONS, IT IS DIFFICULT TO BELIEVE THE EVIDENCE COULD BE
EXCLUDED CONSISTENTLY WITH THE JUDICIAL OBLIGATION.  THE CONSTITUTION
DOES NOT MAKE JUDICIAL OBSERVANCE OR ENFORCEMENT OF ITS BASIC
GUARANTIES DEPEND ON WHETHER THEIR VIOLATION APPEARS FROM THE FACE OF
LEGISLATION OR ONLY FROM ITS APPLICATION TO PROVEN FACTS.  SNOWDEN V.
HUGHES, 321 U.S. 1; YICK WO V. HOPKINS, 118 U.S. 356, 373-374; UNITED
STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 152-154. 

FOR LEGISLATION NOT VOID ON ITS FACE, A PRESUMPTION OF
CONSTITUTIONALITY ATTACHES AND REMAINS UNTIL IT IS PROVEN INVALID OR SO
IN OPERATION.  IN SUCH CASES THERE IS NO UNFAIRNESS, NOR ANY INVASION
OF THE COURT'S PARAMOUNT OBLIGATION, IN REQUIRING ONE WHO WOULD AVOID
THE REGULATIONS' IMPACT TO SHOW THEY ARE NOT WHAT THEY APPEAR TO BE OR
THAT THEY ARE MADE TO OPERATE OTHERWISE THAN AS THEY PURPORT OR WERE
INTENDED.  BUT IT IS ONE THING TO SAY THAT BURDEN MUST BE BORNE WITHIN
THE ENFORCEMENT PROCEEDING ITSELF AND ANOTHER TO SAY IT MUST BE CARRIED
ENTIRELY OUTSIDE IT.  TO REQUIRE THE DEFENDANT TO PROVE INVALIDITY IN
SUCH A SITUATION IN THE CRIMINAL TRIAL ITSELF, UPON A SHOWING OF
VIOLATION OF THE STATUTE, IS WHOLLY PERMISSIBLE.  BUT FOR THE COURT TO
BE UNABLE TO RECEIVE TENDERED EVIDENCE WHICH MIGHT DISCLOSE THE
STATUTE'S INVALID CHARACTER AND EFFECT, IS QUITE DIFFERENT.  CERTAINLY,
UNDER THE CIRCUMSTANCES OF THIS CASE, IT WOULD SEEM TO BE AS MUCH A
VIOLATION OF INDIVIDUAL RIGHT AND AS MUCH AN INVASION OF THE JUDICIAL
FUNCTION FOR CONGRESS TO COMMAND THE COURT NOT TO RECEIVE THE EVIDENCE,
REGARDLESS OF ITS CHARACTER OR EFFECT, AS FOR IT TO DIRECT THE COURT TO
ENFORCE A LAW OR AN ORDER VOID ON ITS FACE. 

                                 VII. 

TO SANCTION CONVICTION OF CRIME IN A PROCEEDING WHICH DOES NOT ACCORD
THE ACCUSED FULL PROTECTION FOR HIS RIGHTS UNDER THE FIFTH AND SIXTH
AMENDMENTS, AND WHICH ENTAILS A SUBSTANTIAL LEGISLATIVE INCURSION ON
THE CONSTITUTIONALLY DERIVED JUDICIAL POWER, IF INDEED THIS EVER COULD
BE SUSTAINED, WOULD REQUIRE A SHOWING OF THE GREATEST EMERGENCY COUPLED
WITH AN INABILITY TO ACCOMPLISH THE SUBSTANTIVE ENDS SOUGHT IN ANY
OTHER WAY.  NO ONE QUESTIONS THE SERIOUSNESS OF THE EMERGENCY THE PRICE
CONTROL ACT WAS ADOPTED TO MEET.  AND IT HAS BEEN URGED WITH GREAT
EARNESTNESS THAT THE NATION'S SECURITY IN THE PRESENT SITUATION
REQUIRES THAT THE STATUTE'S PROCEDURE, FOLLOWED IN THIS CASE, BE
SUSTAINED TO ITS FULL EXTENT. 

THAT ARGUMENT WOULD BE MORE POWERFUL IF ENFORCEMENT OF THE STATUTE,
AND THUS MAINTENANCE OF PRICE CONTROL, WERE DEPENDENT UPON ACCEPTING
EVERY FEATURE.  NO DOUBT TO IMPOSE THE CRIMINAL SANCTION AS HAS BEEN
DONE IN THIS CASE IMPLEMENTS THE ENFORCEMENT PROCESS WITH THE DETERRENT
EFFECTS WHICH USUALLY ACCOMPANY THAT SANCTION.  BUT NEITHER ITS USE NOR
ENFORCEMENT OF THE STATUTE'S SUBSTANTIVE PROHIBITIONS REQUIRES THAT THE
CRIMINAL COURT SHALL NOT CONSIDER THE VALIDITY OF THE REGULATIONS. 

WITH THE ARSENAL OF OTHER VALID LEGAL WEAPONS AVAILABLE, THERE CAN BE
NO LACK OF SPEEDY AND EFFECTIVE MEASURES TO SECURE COMPLIANCE.  THE
REGULATIONS ARE EFFECTIVE UNTIL INVALIDATED.  THEY CANNOT BE SUSPENDED
BY ANY COURT, PENDING FINAL DECISION HERE, IF THE LAST SOURCE OF RELIEF
IS SOUGHT.  ALL THE ARMORY OF EQUITY, AND WITH IT THE SANCTIONS OF
CONTEMPT, ARE AVAILABLE TO KEEP THE REGULATIONS IN FORCE AND TO PREVENT
VIOLATIONS, AT LEAST UNTIL DECISION HERE IS SOUGHT AND HAD THAT THE
REGULATIONS ARE INVALID.  THE SAME WEAPONS ARE AVAILABLE TO ENFORCE
THEM PERMANENTLY IF THEY ARE FOUND VALID.  APART FROM DEFENSE WHEN
CHARGED WITH CRIME, THE INDIVIDUAL'S ONLY AVENUE OF ESCAPE, AND THAT
NOT UNTIL FINAL DECISION OF INVALIDITY HAS BEEN MADE, IS BY PROTEST AND
APPEAL THROUGH THE SINGLE ROUTE PRESCRIBED.  FINALLY, IN ADDITION TO
ALL THIS, THE DEALER MAY BE PUNISHED FOR CRIME IF HE VIOLATES THE
REGULATION WILLFULLY AND CANNOT SHOW IT IS INVALID EITHER IN HIS
DEFENSE OR BY SECURING A JUDGMENT TO THIS EFFECT THROUGH THE PROTEST
PROCEDURE.  IN EITHER CASE, IN VIEW OF THE STATUTE'S CURTAILMENT OF HIS
SUBSTANTIVE RIGHTS AND THE CONSEQUENT INCREASE IN THE BURDEN OF PROVING
FACTS SUFFICIENT TO NULLIFY THE REGULATION,  FN40  HIS CHANCE FOR
ESCAPE BECOMES REMOTE, TO SAY THE LEAST.  IN VIEW OF ALL THESE
RESOURCES AND ADVANTAGES, THE ASSERTION HARDLY IS SUSTAINED THAT
ENFORCEMENT REQUIRES ALSO DEPRIVING THE ACCUSED OF HIS OPPORTUNITY FOR
FULL AND ADEQUATE DEFENSE IN HIS CRIMINAL TRIAL.    WAR REQUIRES MUCH
OF THE CITIZEN.  HE SURRENDERS RIGHTS FOR THE TIME BEING TO SECURE
THEIR MORE PERMANENT ESTABLISHMENT.  MOST MEN DO SO FREELY.  ACCORDING
TO OUR PLAN OTHERS MUST DO SO ALSO, AS FAR AS THE NATION'S SAFETY
REQUIRES.  BUT THE SURRENDER IS NEITHER PERMANENT NOR TOTAL.  THE GREAT
LIBERTIES OF SPEECH AND THE PRESS ARE CURTAILED BUT NOT DENIED. 
RELIGIOUS FREEDOM REMAINS A LIVING THING.  WITH THESE, IN OUR SYSTEM,
RANK THE ELEMENTAL PROTECTIONS THROWN ABOUT THE CITIZEN CHARGED WITH
CRIME, MORE ESPECIALLY THOSE FORGED ON HISTORY'S ANVIL IN GREAT
CRISES.  THEY SECURE FAIR PLAY TO THE GUILTY AND VINDICATION FOR THE
INNOCENT.  BY ONE MEANS ONLY MAY THEY BE SUSPENDED, EVEN WHEN CHAOS
THREATENS.  WHATEVER ELSE SEEKS TO DISPENSE WITH THEM OR MATERIALLY
IMPAIR THEIR INTEGRITY SHOULD FAIL.  NOT YET HAS THE WAR BROUGHT
EXTREMITY THAT DEMANDS OR PERMITS THEM TO BE PUT ASIDE.  NOR DOES
MAINTAINING PRICE CONTROL REQUIRE THIS.  THE EFFECT, THOUGH NOT
INTENDED, OF THE PROVISION WHICH FORBIDS A CRIMINAL COURT TO "CONSIDER
THE VALIDITY" OF THE LAW ON WHICH THE CHARGE OF CRIME IS FOUNDED, IN MY
OPINION, WOULD BE GREATLY TO IMPAIR THESE SECURITIES.  HENCE I CANNOT
ASSENT TO THAT PROVISION AS VALID. 

DIFFERENT CONSIDERATIONS, IN PART AT ANY RATE, APPLY IN CIVIL
PROCEEDINGS.  FN41  BUT FOR THE TRIAL OF CRIMES NO PROCEDURE SHOULD BE
APPROVED WHICH DISPENSES WITH TRIAL OF ANY MATERIAL ISSUE OR SPLITS THE
TRIAL INTO DISJOINTED SEGMENTS, ONE OF WHICH IS SUMMARY AND CIVIL, THE
OTHER BUT A REMNANT OF THE ANCIENT CRIMINAL PROCEEDING. 

THE JUDGMENT SHOULD BE REVERSED. 

FN1  CF., E.G., NEBBIA V. NEW YORK, 291 U.S. 502. 

FN2  PERHAPS THE NEAREST PREVIOUS APPROACH TO CONTROL SO EXTENSIVE
WAS IN THE NATIONAL INDUSTRIAL RECOVERY LEGISLATION. 

FN3  CF. NOTE 18 INFRA. 

FN4  IT GOES WITHOUT SAYING THAT WHATEVER SCOPE IS ALLOWED FOR
OPERATION OF GOVERNMENTAL AUTHORITY IN PEACE CONTINUES TO BE EFFECTIVE
IN WAR. 

FN5  E.G., THE ADMINISTRATOR HAS NO POWER TO ADOPT CODES OF FAIR
COMPETITION GENERALLY, SUCH AS WAS GIVEN UNDER N.I.R.A.  HIS PRINCIPAL
FUNCTION IS SINGLE, TO DETERMINE AND MAKE EFFECTIVE BY REGULATION THE
MAXIMUM PRICE AT WHICH A COMMODITY MAY BE SOLD.  THE TASK IS VAST AND
COMPLEX, IN COMPARISON WITH PREVIOUSLY SUSTAINED PRICE-FIXING
DELEGATIONS, BY VIRTUE OF THE NUMBER OF INDUSTRIES AND ITEMS AFFECTED
AND THE NATION-WIDE SCOPE OF THE AUTHORITY.  BUT THE FOCUS OF THE PRICE
FIXING FUNCTION IS NARROW, ALTHOUGH POWERFUL, IN ITS INCIDENCE UPON A
PARTICULAR INDUSTRY OR OPERATOR. 

FN6  CF. JUDICIAL REVIEW OF PRICE ORDERS UNDER THE EMERGENCY PRICE
CONTROL ACT (1942) 37 ILL. L. REV. 256, 263-264; AND OTHER MATERIALS
CITED INFRA NOTES 20, 21. 

FN7  BY SEC. 205(F)(1), (2) LICENSING AUTHORITY IS GIVEN TO THE
ADMINISTRATOR, WITH SPECIAL PROVISIONS FOR SUSPENSION FOR NOT MORE THAN
TWELVE MONTHS BY PROCEEDINGS IN STATE, TERRITORIAL OR FEDERAL DISTRICT
COURTS. 

FN8  IT IS CONCEDED THAT QUESTIONS CONCERNING THE VALIDITY OF
STATUTORY PROVISIONS, AS DISTINGUISHED FROM REGULATIONS, REMAIN
DETERMINABLE BY ENFORCING COURTS.  SEE SEN. REP. NO. 931, 77TH CONG.,
2D SESS., 24-25, AND COMPARE H.R. 5479, 77TH CONG., 1ST SESS., PRINTED
IN HEARINGS BEFORE COMMITTEE ON BANKING AND CURRENCY ON H.R. 5479, 77TH
CONG., 2D SESS., 4, 7-8. 

FN9  CF. PARTS IV, V, INFRA. 

FN10  THE MOSES TAYLOR, 4 WALL.  411; BOWLES V. WILLINGHAM, POST, P.
503; CF. CLAFLIN V. HOUSEMAN, 93 U.S. 130; PLAQUEMINES TROPICAL FRUIT
CO. V. HENDERSON, 170 U.S. 511. 

FN11  THIS IT MIGHT HAVE DONE, SUBJECT ONLY TO THE REQUIREMENT THAT
THE PROCEDURE SPECIFIED FOR THE SINGLE COMPETENT COURT AFFORD A
CONSTITUTIONALLY ADEQUATE MODE FOR DETERMINING THE ISSUES.  MYERS V.
BETHLEHEM SHIPBUILDING CORP., SUPRA.  IN CASE CRIMINAL JURISDICTION
WERE CONFERRED, OBSERVANCE OF THE REQUIREMENTS OF ARTICLE III, SEC. 2,
AND OF THE FIFTH AND SIXTH AMENDMENTS CONCERNING SUCH TRIALS WOULD BE
REQUIRED.  CF. TEXT INFRA, PARTS V, VI. 

FN12  CF. L'HOTE V. NEW ORLEANS, 177 U.S. 587; WELCH V. SWASEY, 214
U.S. 91; HAMILTON V. KENTUCKY DISTILLERIES & WAREHOUSE CO., 251 U.S.
146. 

FN13 METROPOLITAN CASUALTY INS. CO. V. BROWNELL, 294 U.S. 580; UNITED
STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 152-154. 

FN14  BY SEC. 204(B) OF THE ACT, THE EFFECTIVENESS OF A JUDGMENT OF
THE EMERGENCY COURT ENJOINING OR SETTING ASIDE THE REGULATION, IN WHOLE
OR IN PART, IS POSTPONED UNTIL THE EXPIRATION OF THIRTY DAYS FROM ITS
ENTRY AND, IF CERTIORARI IS SOUGHT HERE WITHIN THAT TIME, THE
POSTPONEMENT CONTINUES UNTIL THIS COURT'S DENIAL OF THE WRIT BECOMES
FINAL OR UNTIL OTHER FINAL DISPOSITION OF THE CASE BY THIS COURT.  BY
SEC. 204(D) THE EMERGENCY COURT AND THIS COURT ARE GIVEN EXCLUSIVE
JURISDICTION TO DETERMINE THE VALIDITY OF THE REGULATION AND ALL OTHER
COURTS ARE DENIED "JURISDICTION OR POWER TO CONSIDER" THIS QUESTION AND
TO STAY, RESTRAIN, ENJOIN OR SET ASIDE ANY PROVISION OF THE REGULATION
OR ITS ENFORCEMENT.  THE NET EFFECT IS TO DEPRIVE ALL COURTS OF POWER
TO SUSPEND OPERATION OF THE REGULATION PENDING FINAL DECISION ON ITS
VALIDITY AND TO KEEP IT IN FORCE UNTIL A FINAL JUDGMENT OF THE
EMERGENCY COURT, OR OF THIS COURT ON REVIEW OF ITS DECISION, BECOMES
EFFECTIVE. 

FN15  CF. TEXT INFRA, PART III, AT NOTES 16, 17. 

FN16  THERE HARDLY CAN BE QUESTION THAT WHENEVER AN ADMINISTRATIVE
AGENCY, ACTING WITHIN THE DISCRETION VALIDLY CONFERRED UPON IT BY
CONGRESS, PROMULGATES A REGULATION OR ISSUES AN ORDER OF GENERAL
APPLICABILITY IT IS "MAKING THE LAW," AS EFFECTIVELY AS IS CONGRESS
WHEN IT ENACTS A SPECIFIC PRESCRIPTION, BY WHATEVER NAME THIS MAY BE
CALLED.  UNITED STATES V. GRIMAUD, 220 U.S. 506; AVENT V. UNITED
STATES, 266 U.S. 127; UNITED STATES V. MICHIGAN PORTLAND CEMENT CO.,
270 U.S. 521. 

FN17  CF. THE DISSENTING OPINION OF MR. JUSTICE ROBERTS.  THE NOTION
THAT CONGRESS SOMEHOW COULD CUT OFF REVIEW OF REGULATIONS FOR
CONSTITUTIONAL INVALIDITY WHEN IT COULD NOT DO SO FOR STATUTES, OF
WHICH SUGGESTIONS APPEAR IN THE LEGISLATIVE HISTORY AND THE BRIEFS, WAS
NOT ADHERED TO IN THE ORAL ARGUMENT AS TO REGULATIONS VOID ON THEIR
FACE AND IS NOT TOLERABLE WHEN THE EFFECT WOULD BE TO MAKE THE COURTS
INSTRUMENTS FOR ENFORCING UNCONSTITUTIONAL MANDATES.  CF. PART VI,
INFRA. 

FN18  SEE NOTE 17 SUPRA.  THE UNIQUE CIRCUMSTANCES INVOLVED IN
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, CONFINE THAT CASE TO ITS
FACTS, INCLUDING THE PARTICULAR EMERGENCY WITH WHICH LEGISLATION THERE
UNDER REVIEW HAD DEALT, AS RESPECTS THE ISSUE OF EQUAL PROTECTION. 

FN19  CF. NOTES 23, 33 INFRA. 

FN20  MCALLISTER, STATUTORY ROADS TO REVIEW OF FEDERAL ADMINISTRATIVE
ORDERS (1940) 28 CALIF. L. REV. 129, 166. 

FN21  IBID.  CF. JUDICIAL REVIEW OF PRICE ORDERS UNDER THE EMERGENCY
PRICE CONTROL ACT (1942) 37 ILL. L. REV. 256, 263; STASON, TIMING OF
JUDICIAL REDRESS FROM ERRONEOUS ADMINISTRATIVE ACTION (1941) 25 MINN.
L. REV. 560, 575, 576-581; ADMINISTRATIVE FEATURES OF THE EMERGENCY
PRICE CONTROL ACT (1942) 28 VA. L. REV. 991, 998, 999; REID AND HATTON,
PRICE CONTROL AND NATIONAL DEFENSE (1941) 36 ILL. L. REV. 255, 283
284.  FOR AN ANALYSIS OF LITIGATION UNDER THIS ACT SEE SPRECHER, PRICE
CONTROL IN THE COURTS (1944) 44 COL. L. REV. 34. 

FN22  THE FORECLOSURE MAY BE FOUNDED UPON NOTIONS OF WAIVER, COMITY,
PUTTING AN END TO LITIGATION, SECURING ORDERLY PROCEDURE OR THE
ADVANTAGES OF HAVING AVAILABLE FOR CONSIDERATION IN THE LATER STAGES
THE INFORMED JUDGMENT OF THE TRIAL TRIBUNAL, OR SOME COMBINATION OF
THESE AND OTHER CONSIDERATIONS.  CF. STASON, TIMING OF JUDICIAL REVIEW
FROM ERRONEOUS ADMINISTRATIVE ACTION (1941) 25 MINN. L. REV. 560, 576
581; BERGER, EXHAUSTION OF ADMINISTRATIVE REMEDIES (1939) 48 YALE L. J.
980, 1006.  AND THE RULE AGAINST ALLOWING COLLATERAL ATTACK, WHERE A
JUDGMENT IS INVOLVED, IS RELEVANT TO THE BROAD PROBLEM OF FORECLOSURE. 

FN23  COMMONLY IT IS SAID THAT "JURISDICTIONAL" QUESTIONS,
PARTICULARLY CONCERNING THE COURT'S POWER TO DEAL WITH THE SUBJECT
MATTER, MAY BE RAISED AT ANY STAGE OR IN A COLLATERAL ATTACK.  AND THIS
SEEMS TO BE TRUE ALSO OF SOME OTHER CONSTITUTIONAL ISSUES THROUGH
CHALLENGE TO JUDGMENTS BY HABEAS CORPUS PROCEEDINGS LONG AFTER THE
JUDGMENT HAS BECOME FINAL.  CF., E.G., EX PARTE VIRGINIA, 100 U.S. 339;
EX PARTE SIEBOLD, 100 U.S. 371; JOHNSON V. ZERBST, 304 U.S. 458; MOONEY
V. HOLOHAN, 294 U.S. 103.  COMPARE REVISED RULES OF THE SUPREME COURT
OF THE UNITED STATES, RULE 27, PARAGRAPH 6; CF. WEEMS V. UNITED STATES,
217 U.S. 349, 362; COLUMBIA HEIGHTS REALTY CO. V. RUDOLPH, 217 U.S.
547; BRASFIELD V. UNITED STATES, 272 U.S. 448; MAHLER V. EBY, 264 U.S.
32, 45. 

FN24  COMPARE OHIO VALLEY WATER CO. V. BEN AVON BOROUGH, 253 U.S.
287; CROWELL V. BENSON, 285 U.S. 22; ST. JOSEPH STOCK YARDS CO. V.
UNITED STATES, 298 U.S. 38; UTAH FUEL CO. V. NATIONAL BITUMINOUS COAL
COMM'N, 306 U.S. 56, WITH MYERS V. BETHLEHEM SHIPBUILDING CORP., 303
U.S. 41. 

FN25  E.G., COMPARE FEDERAL TRADE COMMISSION V. GRATZ, 253 U.S. 421
WITH LABOR BOARD V. MACKAY RADIO CO., 304 U.S. 333; CF. ALSO MORGAN V.
UNITED STATES, 298 U.S. 468; 304 U.S. 1; UNITED STATES V. MORGAN, 307
U.S. 183.  COMPARE NOTE 24 SUPRA; AND SEE NG FUNG HO V. WHITE, 259 U.S.
276. 

FN26  THUS, IN SOME CASES REVIEW AND ENFORCEMENT ARE CONCENTRATED
EXCLUSIVELY IN THE SAME COURT.  CF. NATIONAL LABOR RELATIONS ACT, 49
STAT. 449, 29 U.S.C. SEC. 151 ET SEQ., GIVING THE CIRCUIT COURTS OF
APPEAL EXCLUSIVE JURISDICTION TO REVIEW AND ENFORCE THE BOARD'S ORDERS,
TO WHICH NO PENALTY ATTACHES UNTIL THE BOARD HAS SOUGHT AND OBTAINED AN
ORDER FROM THE COURT FOR ENFORCEMENT.  WITH THIS DONE, THERE IS NO
DANGER THE INDIVIDUAL WILL BE SENTENCED FOR CRIME FOR FAILURE TO COMPLY
WITH AN INVALID ORDER.  AND THERE IS NONE THAT THE COURT WILL BE CALLED
UPON TO LEND ITS HAND IN ENFORCING AN UNCONSTITUTIONAL EDICT OR, FOR
THAT MATTER, ONE MERELY IN EXCESS OF STATUTORY AUTHORITY.  LIKEWISE,
WHEN THERE IS PROVISION FOR STAY OR SUSPENSION OF THE ORDER PENDING
DETERMINATION OF ITS VALIDITY, E.G., THE SECURITIES ACT OF 1933, 48
STAT. 81, 15 U.S.C. SEC. 77I; THE SECURITIES EXCHANGE ACT OF 1934, 48
STAT. 902, 15 U.S.C. SEC. 78Y; THE PUBLIC UTILITY HOLDING COMPANY ACT
OF 1935, 49 STAT. 835, 15 U.S.C. SEC. 79X.  AND THIS IS TRUE WHERE THE
ENFORCING COURT IS NOT FORBIDDEN TO CONSIDER THE VALIDITY OF THE ORDER,
A PROHIBITION ENTIRELY NOVEL TO THE EMERGENCY PRICE CONTROL ACT. 

FN27  CF. WADLEY SOUTHERN RY. CO. V. GEORGIA, 235 U.S. 651, AND
AUTHORITIES CITED.  IN NOTABLE INSTANCES, ALSO, WHERE NO SPECIFIC
PROVISION HAS BEEN MADE FOR EITHER JUDICIAL REVIEW OR AVOIDING THE
IRREVOCABLE IMPACT OF POSSIBLY INVALID ADMINISTRATIVE ACTION, AND
REVIEW HAS NOT BEEN EXPRESSLY DENIED, THE COURTS HAVE BEEN READY TO
FIND MEANS FOR REVIEW AND FOR AVERTING THE IMPACT OF THE PENALTY UNTIL
IT HAS BEEN HAD.  E.G., EX PARTE YOUNG, 209 U.S. 123; CF. SOUTHERN RY.
CO. V. VIRGINIA, 290 U.S. 190. 

FN28  CF. MCALLISTER, OP. CIT. SUPRA, NOTE 20; AND NOTE 26 SUPRA. 

FN29  APPARENTLY IT IS CONTEMPLATED THAT THE "AFFIDAVITS OR OTHER
WRITTEN EVIDENCE" SUBMITTED IN SUPPORT OF THE OBJECTIONS BE FILED WITH
THE PROTEST, THOUGH LATER SUBMISSIONS MAY BE MADE AT TIMES AND UNDER
REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, OR WHEN ORDERED BY THE
EMERGENCY COURT, OR TO THAT COURT WHEN THE ADMINISTRATOR REQUESTS. 
SECS. 203(A), 204(A).  THE ADMINISTRATOR IS AUTHORIZED TO PERMIT FILING
OF PROTEST AFTER THE SIXTY DAYS HAVE EXPIRED SOLELY ON GROUNDS ARISING
AFTER THAT TIME.  SEC. 203(A).  HE IS REQUIRED TO GRANT OR DENY THE
PROTEST, IN WHOLE OR IN PART, NOTICE THE PROTEST FOR A HEARING, OR
PROVIDE AN OPPORTUNITY TO PRESENT FURTHER EVIDENCE, WITHIN THIRTY DAYS
AFTER THE PROTEST IS FILED OR NINETY DAYS AFTER ISSUANCE OF THE
REGULATION OR ORDER, OR IN THE CASE OF A PRICE SCHEDULE NINETY DAYS
FROM THE EFFECTIVE DATE, WHICHEVER OCCURS LATER.  IBID. 

FN30  CF. NOTE 29 SUPRA.  IN THE EMERGENCY COURT OF APPEALS, "NO
OBJECTION TO (THE) REGULATION ...  AND NO EVIDENCE IN SUPPORT OF ANY
OBJECTION THERETO, SHALL BE CONSIDERED  ...  UNLESS SUCH OBJECTION" HAS
BEEN SET FORTH IN THE PROTEST OR SUCH EVIDENCE IS IN THE TRANSCRIPT. 
ADDITIONAL EVIDENCE CAN BE ADMITTED ONLY IF IT WAS "EITHER OFFERED TO
THE ADMINISTRATOR AND NOT ADMITTED (BY HIM) OR  ...  COULD NOT
REASONABLY HAVE BEEN OFFERED TO  ...  OR INCLUDED BY THE ADMINISTRATOR
IN SUCH PROCEEDINGS."  IN THAT CASE IT IS TO BE PRESENTED TO THE
ADMINISTRATOR, RECEIVED BY HIM AND CERTIFIED TO THE COURT TOGETHER WITH
ANY MODIFICATION HE MAY MAKE IN THE REGULATION.  WHERE THE
ADMINISTRATOR SO REQUESTS, HOWEVER, SUCH ADDITIONAL EVIDENCE "SHALL BE
PRESENTED DIRECTLY TO THE COURT."  SEC. 204(A). 

FN31  CF. NOTE 14 SUPRA. 

FN32  THAT IS TRUE WHETHER THE INFRACTION OCCURS BEFORE OR AFTER THE
TIME FOR PROTEST OR APPEAL HAS PASSED AND, IT WOULD SEEM,
NOTWITHSTANDING THE PROTESTANT MAY PROCEED WITH ALL DILIGENCE.  THE
STATUTE MAKES NO PROVISION FOR RELIEVING FROM ITS PENAL SANCTIONS ONE
WHO FOLLOWS THE PROTEST PROCEDURE TO THE END IN CASE THE PROTEST
EVENTUALLY IS SUSTAINED, IF MEANWHILE HE DISOBEYS THE ORDER. 
PUNISHMENT IS NOT MADE DEPENDENT ON OR REQUIRED TO AWAIT THE OUTCOME OF
THAT PROCEEDING.  RATHER, THE ENFORCING COURT IS COMMANDED NOT TO
CONSIDER VALIDITY.  THE COMMAND IS UNQUALIFIED, UNVARYING AND
UNIVERSAL.  IT IS CAST IN THE COMPELLING TERMS OF "JURISDICTION." 
UNDER THE STATUTE'S PROVISIONS, IT APPLIES AS MUCH WHEN TRIAL AND
CONVICTION OCCUR BEFORE THE EMERGENCY COURT'S DECISION IS FINAL AS
AFTERWARDS.    FN33  CF. BRADLEY V. RICHMOND, 227 U.S. 477, WHICH
INVOLVED A STATE PROSECUTION FOR VIOLATING A STATE LAW.  IN AFFIRMING
THE CONVICTION THIS COURT REJECTED THE CONTENTION THAT THE
ADMINISTRATIVE DETERMINATION ON WHICH PROSECUTION RESTED WAS
UNCONSTITUTIONAL.  BUT IT WOULD NOT FOLLOW FROM THE FACT A STATE MIGHT
THUS CONDITION ITS CRIMINAL PROCEEDINGS CONSISTENTLY WITH THE
FOURTEENTH AMENDMENT'S REQUIREMENT OF DUE PROCESS THAT CONGRESS CAN DO
LIKEWISE FOR FEDERAL CRIMINAL TRIALS.  CF. INFRA PART V. WADLEY
SOUTHERN RY. CO. V. GEORGIA, SUPRA, ALSO INVOLVED A STATE SUIT FOR
CIVIL PENALTY FOR VIOLATION OF A STATE ADMINISTRATIVE ORDER, TO WHICH
THE LIMITATIONS OF THE SIXTH AMENDMENT WOULD NOT APPLY.  THE DICTA
WHICH THE COURT REGARDS AS POINTING TO THE VALIDITY OF THE PROCEDURE
HERE DO NOT SUSTAIN IT, NOT ONLY FOR THIS REASON, BUT BECAUSE THE
SPECIAL PROCEDURE WAS DIFFERENT, DID NOT PURPORT TO FORECLOSE DEFENSE
TO ENFORCEMENT IF NOT FOLLOWED, AND EXPRESSLY ASSERTED THAT, IF
FOLLOWED, PENALTY COULD BE IMPOSED ONLY FOR VIOLATIONS TAKING PLACE
AFTER THE ORDER WAS ADJUDICATED VALID, NOT BEFOREHAND.  THIS CASE
INVOLVES THE VERY RISK THE COURT THERE SAID COULD NOT BE IMPOSED. 

OTHER INSTANCES RELIED ON BY THE COURT INVOLVE ONLY CIVIL, NOT
CRIMINAL CONSEQUENCES, OR DISTINGUISHABLE INSTANCES OF CRIMINAL
PROSECUTION, AND THEREFORE HAVE NO CONCLUSIVE BEARING HERE.  AS THE
COURT SEEMS TO RECOGNIZE, THE QUESTION NOW PRESENTED WAS NOT PRESENTED
OR CONSIDERED IN ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, OR
IN UNITED STATES V. ADAMS EXPRESS CO., 229 U.S. 381.  AND IT WAS NOT
INVOLVED OR DETERMINED IN THE CITED DECISIONS, EITHER HERE OR IN THE
INFERIOR FEDERAL COURTS, DEALING WITH CARRIERS WHO VIOLATE TARIFFS
FRAMED AND FILED BY THEMSELVES AND THEREBY BECOME SUBJECT TO PENALTY. 
THE SAME IS TRUE OF THE CASES HOLDING THAT THREATENED CRIMINAL
PROSECUTION FOR VIOLATION OF ADMINISTRATIVE ORDERS CANNOT BE ENJOINED. 

IN THESE DECISIONS, NONE OF THE STATUTES FORBADE THE ENFORCING COURT
"TO CONSIDER THE VALIDITY" OF THE ORDERS, NONE AFFORDED A SPECIAL
PROCEEDING SO SUMMARY AS THAT PROVIDED HERE, AND ONLY UNITED STATES V.
VACUUM OIL CO., 158 F. 536, RAISED A CONSTITUTIONAL QUESTION RELEVANT
HERE.  FALBO V. UNITED STATES, 320 U.S. 549, INVOLVED A DIFFERENT
PROCEDURE AND A DIFFERENT AND MORE URGENT PROBLEM.  COMPARE PART VII
INFRA.  IT MAY BE DOUBTED THE DECISION'S EFFECT IS TO PRECLUDE THE
ENFORCING COURT FROM EXAMINING CONSTITUTIONAL QUESTIONS AFFECTING THE
ORDER'S VALIDITY. 

FN34  NOR, ACCORDING TO ACCEPTED NOTIONS OF THE CRIMINAL PROCESS, HAS
IT EVER BEEN CONTEMPLATED THAT SOME OF THE ISSUES OF FACT SHOULD BE
PROVABLE BY CONFRONTATION OF WITNESSES AND OTHERS BY WRITTEN EVIDENCE
ONLY, WHEN OTHER EVIDENCE IS OR MAY BE AVAILABLE.  IF, FOR INSTANCE,
CONGRESS SHOULD DEFINE AN ACT AS A CRIME, BUT SHOULD REQUIRE THAT IN
THE TRIAL ISSUES RELATING TO THE VALIDITY OF THE LAW FURNISHING THE
BASIS FOR THE CHARGE SHOULD BE PROVEN ONLY BY AFFIDAVIT, THOUGH OTHERS
BY THE NORMAL PROCESSES OF PROOF, THE PROCEEDING HARDLY COULD BE HELD
TO COMPORT WITH THE KIND OF TRIAL THE CONSTITUTION, AND MORE
PARTICULARLY THE SIXTH AMENDMENT REQUIRES.  AND IF CONGRESS SHOULD GO
FURTHER AND PROVIDE FOR DETERMINATION OF THE ISSUES TRIABLE ONLY BY
AFFIDAVIT IN A COURT OR OTHER BODY SITTING ELSEWHERE THAN IN THE STATE
AND DISTRICT OF THE CRIME, WITH OTHER ISSUES TRIABLE BEFORE A COURT
WITH A JURY EMPANELLED THERE, BUT WITH THAT COURT COMPELLED TO GIVE
FINALITY TO THE OTHER'S FINDINGS AGAINST THE ACCUSED, THE DEPARTURE
FROM CONSTITUTIONAL REQUIREMENTS WOULD SEEM TO BE ONLY THE MORE
OBVIOUS.  THIS IS NOT FAR IN EFFECT, IF IT IS AT ALL, FROM WHAT HAS
BEEN DONE HERE. 

FN35  HIS ONLY REMEDY IS TO BEGIN A NEW PROTEST PROCEEDING (SEC.
203(A)), WHICH IS NOT ONLY AS LIMITED IN CHARACTER AS THE ORIGINAL ONE,
BUT UNDER THE ADMINISTRATOR'S PROCEDURAL REGULATIONS MUST BE "FILED
WITHIN  ...  SIXTY DAYS AFTER THE PROTESTANT HAS HAD, OR COULD
REASONABLY HAVE HAD, NOTICE" OF THE CHANGED FACTS.  REVISED PROCEDURAL
REGULATION 1, SEC. 1300.26.  CF. NOTES 29, 30 SUPRA. 

FN36  CF. NOTE 22 SUPRA. 

FN37  COMPARE JOHNSON V. ZERBST, 304 U.S. 458; GLASSER V. UNITED
STATES, 315 U.S. 60; WITH PATTON V. UNITED STATES, 281 U.S. 276; ADAMS
V. UNITED STATES EX REL. MCCANN, 317 U.S. 269. 

FN38  CF. NOTE 41 INFRA. 

FN39  CF. MCLAREN, CAN A TRIAL COURT OF THE UNITED STATES BE
COMPLETELY DEPRIVED OF THE POWER TO DETERMINE CONSTITUTIONAL
QUESTIONS?  (1944) 30 A.B.A.J. 17. 

FN40  THAT BURDEN IS HEAVY, AS THIS CASE ILLUSTRATES.  PETITIONERS
ATTACKED THE REGULATION'S CONSTITUTIONALITY ON THE GROUND THAT, BY
COMPELLING THEM TO SELL AT PRICES LESS THAN COST, IT DEPRIVED THEM OF
THEIR PROPERTY WITHOUT DUE PROCESS OF LAW.  AND, ON THE SAME GROUND,
THEY URGED THE REGULATION VIOLATES THE STATUTE'S REQUIREMENT THAT THE
PRICE FIXED ALLOW MARGINS WHICH ARE "GENERALLY FAIR AND EQUITABLE." 
BUT THE FIFTH AMENDMENT DOES NOT INSURE A PROFIT TO ANY GIVEN
INDIVIDUAL OR GROUP NOT UNDER LEGAL COMPULSION TO RENDER SERVICE, WHERE
DOING SO WOULD CONTRAVENE AN ENACTED POLICY OF CONGRESS SUSTAINABLE ON
A BALANCE OF PUBLIC NECESSITY AND PRIVATE HARDSHIP.  CF. THE COURT'S
OPINION HEREIN AND AUTHORITIES CITED; ALSO BOWLES V. WILLINGHAM, POST,
P. 503.  AND IN THIS CASE BOTH THE STATUTE'S BASIC PURPOSE AND ITS
TERMS, AS WELL AS THE LEGISLATIVE HISTORY, CF. SEN. REP. NO. 931, 77TH
CONG., 2D SESS., 15, SHOW THAT CONGRESS INTENDED TO FORBID ONLY A PRICE
SO LOW THAT THE TRADE IN GENERAL, NOT MERELY SOME INDIVIDUAL DEALERS OR
GROUPS, COULD NOT HAVE THE MARGIN PRESCRIBED.  BOWLES V. WILLINGHAM,
SUPRA. PETITIONERS' OFFERS OF PROOF, IN THIS RESPECT, WHICH THE TRIAL
COURT REJECTED, WENT ONLY TO SHOW THAT THEY, OR AT MOST THE MEAT
WHOLESALERS OF BOSTON, COULD SELL BEEF ONLY AT A LOSS.  HARSH AS THIS
MAY SEEM IN INDIVIDUAL INSTANCES, IT WAS CONGRESS' JUDGMENT THAT THE
INTERESTS OF DEALERS WHO COULD NOT OPERATE PROFITABLY AT A LEVEL OF
PRICES PERMITTING A FAIR MARGIN GENERALLY TO THE TRADE, WOULD HAVE TO
GIVE WAY, IN THE ACUTE PREVAILING CIRCUMSTANCES, TO THE PARAMOUNT
NATIONAL NECESSITY OF KEEPING PRICES STABILIZED; AND THAT JUDGMENT, BY
VIRTUE OF THOSE CIRCUMSTANCES, WAS FOR CONGRESS TO MAKE.  ACCORDINGLY
THE TENDERED PROOF HARDLY WAS SUFFICIENT TO RAISE AN ISSUE OF
CONFISCATION GIVING GROUND FOR SETTING ASIDE THE REGULATION. 

IT IS LIKELY THAT BY FAR THE GREATER NUMBER OF CHALLENGES WOULD ARISE
ON GROUNDS OF SUPPOSED CONFISCATION, IN WHICH THIS BURDEN WOULD HAVE TO
BE MET.  ONCE IT IS MADE CLEAR JUST WHAT THAT BURDEN IS, THE FEAR
HARDLY SEEMS JUSTIFIED THAT ENFORCEMENT WOULD SWAMP THE AGENCY WITH
LITIGATION.  IN ANY EVENT, THE REMEDY FOR THAT WOULD BE BY PROVIDING A
MORE ADEQUATE ENFORCING STAFF, NOT BY CUTTING OFF DEFENSE TO CRIMINAL
PROSECUTIONS BASED ON INVALID ORDERS. 

FN41  CF. CONCURRING OPINION IN BOWLES V. WILLINGHAM, POST, P. 503. 
LIMITATIONS APPLICABLE SOLELY TO CRIMINAL PROCEEDINGS FALL TO ONE
SIDE.  GIVING THE DECISION IN THE SPECIAL PROCEEDING, OR FAILURE TO
SEEK IT AFTER REASONABLE OPPORTUNITY, THE EFFECT OF RES JUDICATA IN
LATER CIVIL PROCEEDINGS DOES NOT THEREFORE DEPRIVE THE PARTY AFFECTED
OF OPPORTUNITY FOR FULL AND ADEQUATE DEFENSE IN HIS CRIMINAL TRIAL,
WHERE NOT ONLY HIS RIGHTS OF PROPERTY, BUT HIS LIBERTY OR HIS LIFE MAY
BE AT STAKE. 

HOWEVER WIDELY THE CHARACTER OF THE SPECIAL REMEDY MAY BE VARIED TO
MEET DIFFERENT URGENCIES, WITH CONSEQUENCES OF FORECLOSURE FOR CIVIL
EFFECTS, THE FORECLOSURE OF CRIMINAL DEFENSE SHOULD BE ALLOWED, IF AT
ALL, ONLY BY A PROCEDURE AFFORDING ITS SUBSTANTIAL EQUIVALENT, IN
RELATION TO SPECIAL CONSTITUTIONAL ISSUES AND IN SUCH A MANNER THAT THE
FAILURE TO FOLLOW IT REASONABLY COULD BE TAKEN AS AN ACTUAL, NOT A
FORCED WAIVER.  THUS, POSSIBLY FORECLOSURE OF CRIMINAL DEFENSE COULD BE
SUSTAINED, WHEN VALIDITY TURNS ON COMPLEX ECONOMIC QUESTIONS, USUALLY
OF CONFISCATORY EFFECTS OF LEGISLATION, AND PROOF OF COMPLICATED FACTS
BEARING ON THEM.  BUT, IF SO, THIS SHOULD BE ONLY WHEN THE SPECIAL
PROCEEDING IS CLEARLY ADEQUATE, AFFORDING THE USUAL RIGHTS TO PRESENT
EVIDENCE, CROSS-EXAMINE, AND MAKE ARGUMENT, CHARACTERISTIC OF JUDICIAL
PROCEEDINGS, SO THAT, IF FOLLOWED, THE PARTY WOULD HAVE A SUBSTANTIAL
EQUIVALENT TO DEFENSE IN A CRIMINAL TRIAL.  AND THE OPPORTUNITY SHOULD
BE LONG ENOUGH SO THAT THE FAILURE TO TAKE IT REASONABLY COULD BE TAKEN
TO MEAN THAT THE PARTY INTENDS, BY NOT TAKING IT, TO WAIVE THE QUESTION
ACTUALLY AND NOT BY FORCED SURRENDER.  SO SAFEGUARDED, THE FORECLOSURE
OF SUCH QUESTIONS IN THIS WAY WOULD NOT WORK A SUBSTANTIAL DEPRIVATION
OF DEFENSE. 

IN RESPECT TO OTHER QUESTIONS, SUCH AS THE DRAWING OF RACIAL OR
RELIGIOUS LINES IN ORDERS OR BY THEIR APPLICATION, OF A CHARACTER
DETERMINABLE AS WELL BY THE CRIMINAL AS BY THE SPECIAL TRIBUNAL, IN MY
OPINION THE SPECIAL CONSTITUTIONAL LIMITATIONS APPLICABLE TO FEDERAL
CRIMINAL TRIALS, AND DUE ENFORCEMENT OF SOME SUBSTANTIVE REQUIREMENTS
AS WELL, REQUIRE KEEPING OPEN AND AVAILABLE THE CHANCE FOR FULL AND
COMPLETE DEFENSE IN THE CRIMINAL TRIAL ITSELF. 

I AM AUTHORIZED TO SAY THAT MR. JUSTICE MURPHY JOINS IN THIS
OPINION. 
..END :
















VINSON V. WASHINGTON GAS CO., 321 U.S. 489 


NO. 396.  ARGUED FEBRUARY 11, 14, 1944.  - DECIDED MARCH 27, 1944.  -
137 F.2D 547, AFFIRMED. 


THE EMERGENCY PRICE CONTROL ACT OF 1942 SPECIFICALLY WITHHELD FROM THE
ADMINISTRATOR AUTHORITY TO REGULATE THE RATES OF ANY PUBLIC UTILITY. 
THE AMENDATORY ACT OF OCTOBER 2, 1942 PROVIDED "THAT NO  ...  PUBLIC
UTILITY SHALL MAKE ANY GENERAL INCREASE IN ITS RATES OR CHARGES WHICH
WERE IN EFFECT ON SEPTEMBER 15, 1942, UNLESS IT FIRST GIVES THIRTY DAYS
NOTICE TO THE PRESIDENT, OR SUCH AGENCY AS HE MAY DESIGNATE, AND
CONSENTS TO THE TIMELY INTERVENTION BY SUCH AGENCY BEFORE THE FEDERAL,
STATE, OR MUNICIPAL AUTHORITY HAVING JURISDICTION TO CONSIDER SUCH
INCREASE."  IN A PROCEEDING PURSUANT TO A SLIDING SCALE ARRANGEMENT
AUTHORIZED BY THE LOCAL LAW, THE PUBLIC UTILITIES COMMISSION OF THE
DISTRICT OF COLUMBIA GRANTED AN INCREASE IN THE RATES OF A PUBLIC
UTILITY.  THE DIRECTOR OF ECONOMIC STABILIZATION WAS PERMITTED TO
INTERVENE, BUT ONLY FOR THE PURPOSE OF ADDUCING EVIDENCE AS TO THE
INFLATIONARY EFFECT OF THE PROPOSED INCREASE, AND NO SUCH EVIDENCE WAS
OFFERED.  HELD: 

1.  BY THE EMERGENCY PRICE CONTROL ACT, AS AMENDED, CONGRESS DID NOT
INTEND TO PROHIBIT LOCAL REGULATORY AUTHORITIES FROM PERMITTING ANY
INCREASE IN UTILITY RATES WHICH WAS NOT SHOWN TO BE NECESSARY TO
PREVENT ACTUAL HARDSHIP.  P. 498. 

2.  UPON THE RECORD, THE COMMISSION, IN REFUSING TO ENLARGE THE SCOPE
OF THE PROCEEDING AND TO REEXAMINE THE BASIS OF THE SLIDING SCALE
ARRANGEMENT, DID NOT DENY THE DIRECTOR A FAIR HEARING.  P. 499. 

3.  UPON THE ISSUES AS PROPERLY LIMITED BY THE COMMISSION, THE
DIRECTOR WAS AFFORDED OPPORTUNITY FOR A FULL HEARING.  P. 500. 

VINSON, DIRECTOR OF ECONOMIC STABILIZATION, ET AL. V. WASHINGTON GAS
LIGHT CO. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 320 U.S. 730, TO REVIEW THE REVERSAL OF A JUDGMENT, 48
F.SUPP.  703, WHICH SET ASIDE AN ORDER OF THE PUBLIC UTILITIES
COMMISSION OF THE DISTRICT OF COLUMBIA AUTHORIZING AN INCREASE IN THE
RATES OF A PUBLIC UTILITY COMPANY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS GRANTED IN THIS CASE, AT THE INSTANCE OF THE DIRECTOR
OF ECONOMIC STABLIZATION AND THE ADMINISTRATOR, OFFICE OF PRICE
ADMINISTRATION, OF THE UNITED STATES, TO REVIEW A RATE ORDER OF THE
PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF COLUMBIA.  THE
APPLICATION AND EFFECT OF THE EMERGENCY PRICE CONTROL ACT OF 1942,  FN1
AND THE ACT OF OCTOBER 2, 1942,  FN2  ARE INVOLVED. 

THE PETITIONERS, WHO WERE INTERVENORS BEFORE THE COMMISSION, APPEALED
FROM ITS ORDER TO THE DISTRICT COURT OF THE DISTRICT OF COLUMBIA, WHICH
SET ASIDE THE ORDER AS ARBITRARY AND ILLEGAL.  FN3  THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA REVERSED THE DISTRICT COURT.  FN4
UNDERSTANDING OF THE QUESTIONS PRESENTED REQUIRES A DETAILED STATEMENT
OF THEIR HISTORICAL BACKGROUND. 

THE COMMISSION WAS CREATED, AND ITS POWERS AND DUTIES DEFINED, BY ACT
OF CONGRESS IN 1913, SUPPLEMENTED IN 1926, 1935, AND 1939.  FN5
REFERENCES WILL BE TO THE DISTRICT OF COLUMBIA CODE, 1940 EDITION.  THE
STATUTES REQUIRE PUBLIC UTILITIES WITHIN THE DISTRICT TO FURNISH SAFE
AND ADEQUATE FACILITIES, JUST AND REASONABLE SERVICE, AT REASONABLE,
JUST AND NONDISCRIMINATORY RATES, AND TO OBEY THE LAWFUL ORDERS OF THE
COMMISSION (SEC. 43-301).  THERE ARE DETAILED PROVISIONS RESPECTING
RATES AND DEPRECIATION (SEC. 43-315).  FOR THE PURPOSE OF ITS
FUNCTIONS, THE COMMISSION IS DIRECTED TO VALUE "THE PROPERTY OF EVERY
PUBLIC UTILITY WITHIN THE DISTRICT OF COLUMBIA ACTUALLY USED AND USEFUL
FOR THE CONVENIENCE OF THE PUBLIC AT THE FAIR VALUE THEREOF AT THE TIME
OF SAID VALUATION."  (SEC. 43-306.)  NOTHING IN THE STATUTE IS TO BE
"TAKEN TO PROHIBIT A PUBLIC UTILITY, WITH THE CONSENT OF THE
COMMISSION, FROM PROVIDING A SLIDING SCALE OF RATES AND DIVIDENDS
ACCORDING TO WHAT IS COMMONLY KNOWN AS THE BOSTON SLIDING SCALE, OR
OTHER FINANCIAL DEVICE THAT MAY BE PRACTICABLE AND ADVANTAGEOUS TO THE
PARTIES INTERESTED."  BUT NO SUCH ARRANGEMENT IS LAWFUL UNTIL FOUND BY
THE COMMISSION, AFTER INVESTIGATION, TO BE REASONABLE, JUST, AND NOT
INCONSISTENT WITH THE PURPOSES OF THE ACT.  SUCH ARRANGEMENT MUST
OPERATE UNDER THE SUPERVISION AND REGULATION OF THE COMMISSION, MAY BE
ALTERED AND AMENDED, AND MAY BE TERMINATED BY THE COMMISSION (SEC. 43
317).  USUAL POWERS TO FIX RATES, CHARGES, AND MAKE RULES AND
REGULATIONS ARE CONFERRED (SEC. 43-411).  THE COMMISSION MAY MAKE RULES
AND REGULATIONS TO GOVERN ITS PROCEEDINGS AND TO REGULATE THE MODE AND
MANNER OF INVESTIGATIONS AND HEARINGS BEFORE IT (SEC. 43-402).  APPEAL
FROM ITS ORDERS IS AUTHORIZED, AND THE SCOPE OF REVIEW DEFINED (SECS.
43-705 TO 43-706). 

PURSUANT TO ITS AUTHORITY, THE COMMISSION INITIATED IN 1931 AND
CONCLUDED IN 1935 A PROCEEDING FOR THE VALUATION OF THE PROPERTY OF THE
WASHINGTON GAS LIGHT COMPANY, AT AN EXPENSE OF SOME $750,000, AND
ARRIVED AT A DEPRECIATED RATE BASE AS OF 1932.  IT THEN ENTERED UPON A
FURTHER INQUIRY AS TO RATES.  AFTER THIS HAD LASTED SOME TIME IT
APPROVED AND ADOPTED A SLIDING SCALE ARRANGEMENT, WHICH INVOLVED A RATE
BASE, TO BE ADJUSTED ANNUALLY BY ADDING NET PROPERTY ADDITIONS AT COST,
A RATE OF RETURN, AND A RATE OF ACCRUAL TO RETIREMENT RESERVE, IN THE
LIGHT OF WHICH THE RATES OF THE COMPANY WERE TO BE ADJUSTED ANNUALLY. 
IT FOUND THAT THE PLAN WAS PRACTICAL AND WOULD BE ADVANTAGEOUS TO ALL
PARTIES INTERESTED.  THIS PLAN CALLS FOR AN ANNUAL DETERMINATION OF THE
RATE OF RETURN EARNED DURING THE "TEST YEAR," AND OF THE AMOUNT
AVAILABLE FOR RATE INCREASE OR DECREASE FOR THE SUCCEEDING "RATE YEAR,"
AND SCHEDULES AND REGULATIONS TO ACCOMPLISH SUCH INCREASE OR DECREASE. 
SUCH DETERMINATION IS TO BE MADE AFTER PUBLIC NOTICE AND OPPORTUNITY
FOR HEARING.  THE PLAN DEFINES A RATE YEAR AS "THE TWELVE MONTHS'
PERIOD FROM SEPTEMBER 1ST TO AUGUST 31ST, INCLUSIVE," AND THE TEST YEAR
AS "THE TWELVE MONTHS' PERIOD ENDING  ...  JUNE 30TH PRECEDING THE RATE
YEAR."  AT THE INCEPTION OF THE PLAN, RATES WERE REDUCED BY SOME
$800,000 ANNUALLY, AND SUBSEQUENT ANNUAL HEARINGS AND DETERMINATIONS
RESULTED IN RATE REDUCTIONS IN EACH YEAR AFTER 1935, EXCEPT IN 1937 AND
1941, WHEN NO CHANGES WERE MADE. 

THE DURATION OF THE SYSTEM WAS NOT PRESCRIBED BUT IN ITS ORDER THE
COMMISSION STATED THAT IT CONSTRUED THE STATUTE TO PERMIT A TERMINATION
UPON REASONABLE NOTICE, AND FOUND THAT NINETY DAYS' WRITTEN NOTICE OF
TERMINATION BY COMMISSION OR COMPANY WOULD BE REASONABLE. 

MARCH 20, 1942, THE COMMISSION ISSUED ITS ORDER OF INVESTIGATION IN
CONFORMITY WITH THE SLIDING SCALE ARRANGEMENT.  AFTER PRELIMINARY
INVESTIGATION BY ITS AGENTS AND THE REPRESENTATIVES OF THE COMPANY, THE
COMMISSION, PURSUANT TO STATUTORY REQUIREMENT, ISSUED, ON JULY 21,
1942, NOTICE OF HEARING AS TO RATES, CHARGES, AND REGULATIONS WHICH
WERE TO BECOME EFFECTIVE SEPTEMBER 1, 1942, IN ACCORDANCE WITH THE
SLIDING-SCALE ARRANGEMENT.  THE PRICE ADMINISTRATOR WAS GIVEN LEAVE TO
INTERVENE AND WAS REPRESENTED AT A PREHEARING CONFERENCE AND AT ALL
HEARINGS, AND HIS COUNSEL WAS PERMITTED TO CROSS-EXAMINE WITNESSES AND
TO OFFER TESTIMONY.  THESE BEGAN AUGUST 18 AND CONTINUED ON AUGUST 19,
SEPTEMBER 4, 8, 11, AND 14, AND CLOSED ON THE LAST-NAMED DATE.  THE
COMMISSION STATED THAT IT WOULD WELCOME TESTIMONY WITH RELATION TO THE
AIMS AND PURPOSES OF THE OFFICE OF PRICE ADMINISTRATION DURING THE
NATIONAL EMERGENCY AND THE RELATION OF THOSE AIMS AND PURPOSES TO THE
PROCEEDINGS, AND EXPRESSED THE HOPE THAT THE ADMINISTRATOR, AS
INTERVENOR, WOULD DEVELOP TESTIMONY ALONG LINES WHICH WOULD ENABLE THE
COMMISSION TO DETERMINE WHETHER AN INCREASE SHOULD BE GRANTED IN VIEW
OF THE NATIONAL EMERGENCY.  THE ADMINISTRATOR'S COUNSEL OFFERED
EVIDENCE, CROSS-EXAMINED WITNESSES, ARGUED AND FILED A BRIEF. 

ON APPLICATION OF OTHER PARTIES, THE PROCEEDINGS WERE REOPENED AND
FURTHER HEARING HAD SEPTEMBER 30TH.  COUNSEL FOR THE ADMINISTRATOR
PARTICIPATED AND FILED A SECOND BRIEF.  THE HEARINGS WERE AGAIN CLOSED,
AND, OCTOBER 13, THE COMMISSION ISSUED ITS FINDINGS, OPINION AND
ORDER. 

THE PETITIONERS' STANDING IN THE PROCEEDINGS DESERVES NOTICE. 
PROVIDES:  "NOTHING IN THIS ACT SHALL BE CONSTRUED TO AUTHORIZE THE
REGULATION OF  ...  RATES CHARGED BY ANY COMMON CARRIER OR OTHER PUBLIC
UTILITY."  FN7  THE ADMISSION OF THE ADMINISTRATOR AS INTERVENOR WAS,
THEREFORE, NOT PURSUANT TO STATUTE BUT WAS GOVERNED BY THE COMMISSION'S
RULES.  THE COMMISSION HAD PROVIDED FOR INTERVENTION IN ITS RULES. 
RULE 7.3 IS:  "THE COMMISSION MAY GRANT OR DENY A PETITION FOR LEAVE TO
INTERVENE, OR MAY GRANT THE PETITION UPON SUCH CONDITIONS AND
LIMITATIONS AS IT MAY PRESCRIBE."  RULE 7.5 IS:  "THE GRANTING OF A
PETITION TO INTERVENE SHALL NOT HAVE THE EFFECT OF CHANGING OR
ENLARGING THE ISSUES IN THE PROCEEDING, EXCEPT WHERE SUCH CHANGE OR
ENLARGEMENT IS EXPRESSLY REQUESTED IN THE PETITION AND IS EXPRESSLY
GRANTED BY THE COMMISSION AFTER OPPORTUNITY FOR HEARING UPON THE
QUESTION HAS BEEN AFFORDED ALL OTHER PARTIES." 

AFTER FINAL SUBMISSION, AND BEFORE PROMULGATION OF THE COMMISSION'S
ORDER, THE EMERGENCY PRICE CONTROL ACT WAS AMENDED BY THE ACT OF
OCTOBER 2, 1942, WHICH, WHILE PROHIBITING THE PRESIDENT FROM SUSPENDING
THAT PORTION OF THE ORIGINAL ACT EXEMPTING PUBLIC UTILITIES FROM THE
SCOPE OF THE STATUTE, PROVIDED:  "THAT NO COMMON CARRIER OR OTHER
PUBLIC UTILITY SHALL MAKE ANY GENERAL INCREASE IN ITS RATES OR CHARGES
WHICH WERE IN EFFECT ON SEPTEMBER 15, 1942, UNLESS IT FIRST GIVES
THIRTY DAYS NOTICE TO THE PRESIDENT, OR SUCH AGENCY AS HE MAY
DESIGNATE, AND CONSENTS TO THE TIMELY INTERVENTION BY SUCH AGENCY
BEFORE THE FEDERAL, STATE, OR MUNICIPAL AUTHORITY HAVING JURISDICTION
TO CONSIDER SUCH INCREASE."  50 U.S.C., SUPP. III, SEC. 961. 

ON THE SHOWING OF THE COMMISSION'S STAFF, THE COMPANY WOULD HAVE BEEN
ENTITLED, UNDER THE SLIDING SCALE, TO AN INCREASE IN RATES OF
$324,718.  THE INCREASE APPROVED BY THE COMMISSION WAS $201,424,
EFFECTIVE SEPTEMBER 1, 1942.  IN ITS ORDER, HOWEVER, THE COMMISSION
DIRECTED THE COMPANY'S ATTENTION TO THE PROVISIONS OF THE ACT OF
OCTOBER 2, 1942, AND QUOTED ITS LANGUAGE.  ACCORDINGLY THE COMPANY,
OCTOBER 14, 1942, SERVED NOTICE UPON THE DIRECTOR OF ECONOMIC
STABILIZATION, WHO HAD BEEN DESIGNATED FOR THE PURPOSE BY THE
PRESIDENT, OF THE PROPOSED INCREASE IN RATES TOGETHER WITH A COPY OF
THE COMMISSION'S ORDER, AND LATER CONSENTED TO HIS INTERVENTION.  THE
COURT BELOW HAS FOUND THAT THE REQUISITE NOTICE AND CONSENT TO
INTERVENTION WAS GIVEN BY THE COMPANY IN ACCORDANCE WITH THE ACT. 

COUNSEL WHO HAD PARTICIPATED IN ALL THE PRIOR PROCEEDINGS FOR THE
ADMINISTRATOR FILED WITH THE COMMISSION OCTOBER 19 A PETITION IN THE
NAME OF THE ADMINISTRATOR, AND ON BEHALF OF THE DIRECTOR, ASKING THAT
THE COMMISSION VACATE ITS ORDER AND REOPEN THE PROCEEDINGS TO ALLOW THE
DIRECTOR TO INTERVENE.  THE COMMISSION REOPENED THE PROCEEDING AND SET
A HEARING FOR NOVEMBER 2 "FOR THE PURPOSE OF RECEIVING FROM THE OFFICE
OF PRICE ADMINISTRATION, ON BEHALF OF THE DIRECTOR OF ECONOMIC
STABILIZATION, ADDITIONAL EVIDENCE RELATING TO THE INFLATIONARY EFFECT,
IF ANY, OF THE INCREASE IN RATES AUTHORIZED BY ORDER NO. 2401, AND
INTERVENTION IS GRANTED FOR SUCH PURPOSE."  WHEN THE REOPENED
PROCEEDINGS CAME ON FOR HEARING, THE SAME COUNSEL WHO HAD THERETOFORE
PARTICIPATED IN BEHALF OF THE ADMINISTRATOR APPEARED BEFORE THE
COMMISSION, OFFERED NO WITNESSES, BUT RENEWED A MOTION PREVIOUSLY FILED
THAT THE PROCEEDING BE REOPENED "WITHOUT RESTRICTION AS TO THE TYPE OF
EVIDENCE TO BE PRESENTED" AND THAT THE COMMISSION VACATE ITS ORDER. 
THE MOTION WAS DENIED, THE COMMISSION ANNOUNCING THAT IT WAS READY TO
RECEIVE EVIDENCE IN ACCORDANCE WITH THE ORDER REOPENING THE
PROCEEDING.  THE PETITIONERS OFFERED NO EVIDENCE.  ON BEING ASKED
WHETHER THEY HAD ANY TESTIMONY TO PRESENT IN ACCORDANCE WITH THE ORDER
TO REOPEN THE PROCEEDINGS, THEY ASKED FOR A CONTINUANCE SO THAT THEY
MIGHT CONSULT THEIR ASSOCIATES.  THE REQUEST WAS GRANTED.  ON NOVEMBER
4, COUNSEL RECALLED A WITNESS FOR FURTHER EXAMINATION BUT OFFERED NO
OTHER EVIDENCE.  THE PROCEEDINGS WERE THEN CLOSED FOR THE THIRD TIME
WITHOUT THE OFFER OF ANY TESTIMONY RELATING TO THE NATIONAL ECONOMIC
POLICY DEVELOPED UNDER THE EMERGENCY PRICE CONTROL ACT AS AMENDED "AND
THE EFFECT THEREON OF INCREASE IN RATES OR CHARGES OF COMMON CARRIERS
OR OTHER PUBLIC UTILITIES." 

THE COMMISSION RECONSIDERED THE RECORD AND THE TESTIMONY AND,
NOVEMBER 9, ISSUED ITS ORDER IN WHICH IT REVIEWED THE PROCEEDINGS AND
FOUND THAT THE EVIDENCE ADDUCED FAILED TO SHOW THAT THE RATES
AUTHORIZED BY ORDER NO. 2401 WERE UNDULY INFLATIONARY.  IT DENIED THE
DIRECTOR'S PETITION TO VACATE THE ORDER.  THEREAFTER THE COMPANY PUT
THE NEW RATES INTO EFFECT AS OF NOVEMBER 16TH.  ON APPEAL BY THE
PETITIONERS, THE DISTRICT COURT HELD THAT THE ACTION OF THE COMMISSION,
IN THE LIGHT OF THE RECORD, WAS ARBITRARY AND ILLEGAL, AND VACATED THE
ORDER.  THE COURT OF APPEALS REVERSED, HOLDING THAT THE COMMISSION HAD
AFFORDED PETITIONERS FULL OPPORTUNITY FOR A HEARING UPON ANY QUESTION
WHICH, UNDER THE LAW AND THE RULES OF THE COMMISSION, WAS OPEN IN THE
PROCEEDING AND THAT IT WAS NOT ARBITRARY OR ILLEGAL FOR THE COMMISSION,
ON THE RECORD MADE, TO DENY THE ABANDONMENT OF THE SLIDING-SCALE PLAN
AND THE PROSECUTION OF AN ENTIRELY NEW RATE INVESTIGATION INVOLVING
FAIR VALUE, DEPRECIATION, RATE OF RETURN, AND OTHER ELEMENTS COMMONLY
CONSIDERED IN SUCH AN INVESTIGATION. 

THE PETITIONERS SEEK VACATION OF THE ORDER ON THE GROUND THAT THE
COMMISSION DENIED THEM A FULL AND FAIR HEARING.  THIS CONTENTION IS
BASED UPON THE SUBSTANTIVE CONTENTION THAT UNDER THE ACTS OF JANUARY 30
AND OCTOBER 2, 1942, THEY WERE ENTITLED TO DEMAND THAT THE COMMISSION
ENLARGE THE SCOPE OF THE HEARING AND CONVERT THE INQUIRY INTO ONE
WHETHER AN INCREASE OF RATES WAS NECESSARY TO THE COMPANY TO PREVENT
HARDSHIP.  THE COMMISSION, ON THE OTHER HAND, INSISTS THAT IT WAS
ENTITLED TO CONDUCT THE PROCEEDINGS IN ACCORDANCE WITH ITS STATUTORY
POWERS AS THEY EXISTED PRIOR TO 1942, AND, AT MOST, ACCORD THE
PETITIONERS A FULL HEARING AS TO THE EFFECT OF ANY ORDER IN ITS
RELATION TO INFLATION IN THE WAR EMERGENCY.  THUS IT APPEARS THAT THE
CONTROVERSY IS ESSENTIALLY ONE BETWEEN TWO GOVERNMENTAL AGENCIES AS TO
WHETHER THE POWERS OF THE ONE OR THE OTHER ARE PREPONDERANT IN THE
CIRCUMSTANCES. 

IN VIEW OF THE PETITIONERS' INSISTENCE THAT THEY WERE ENTITLED, IN
EFFECT, TO CONTROL AND DIRECT THE INQUIRY WITHOUT REGARD TO THE
STATUTORY POWERS OF THE COMMISSION, WE SHALL FIRST EXAMINE THE EXTENT
OF THE AUTHORITY CONFERRED UPON PETITIONERS BY CONGRESS. 

THE EMERGENCY PRICE CONTROL ACT OF 1942, WHILE IT GIVES THE
ADMINISTRATOR POWER OVER PRICES OF "COMMODITIES," WHICH ARE NOT
GENERALLY REGULATED BY PUBLIC AUTHORITY, SPECIFICALLY AND EXPRESSLY
WITHHOLDS FROM THE ADMINISTRATOR JURISDICTION OVER PUBLIC UTILITY
RATES.  AND, AS WE HAVE NOTED, THE STABILIZATION ACT OF OCTOBER 2,
1942, DID NOT ALTER THIS PROHIBITION BUT REQUIRED MERELY THAT NO
UTILITY SHOULD GENERALLY INCREASE RATES IN EFFECT SEPTEMBER 15, 1942,
UNLESS IT FIRST GAVE THIRTY DAYS' NOTICE TO THE PRESIDENT OR HIS
REPRESENTATIVE AND CONSENTED TO THE TIMELY INTERVENTION OF THAT
REPRESENTATIVE BEFORE THE FEDERAL, STATE, OR MUNICIPAL AUTHORITY HAVING
JURISDICTION TO CONSIDER THE INCREASE.    IT IS NOT CLEAR THAT THIS
LANGUAGE CONFERS A RIGHT OF INTERVENTION.  THE BILL AS PASSED BY THE
SENATE CONTAINED A PROVISION THAT THERE SHOULD BE NO INCREASE IN
UTILITY RATES UNLESS THEY WERE APPROVED BY THE PRESIDENT.  THE HOUSE
REFUSED TO CONCUR, WITH THE RESULT THAT ONLY THE LANGUAGE NOW CONTAINED
IN THE PROVISO APPEARED IN THE BILL.  THE ASSERTION THAT, WHILE THE
PRICE ADMINISTRATOR OR THE DIRECTOR MAY PRESENT HIS VIEWS TO THE
REGULATORY BODY, "HE HAD NOTHING TO SAY ABOUT ITS DECISION," WAS MADE
AND NOT CONTRADICTED ON THE SENATE FLOOR IN DISCUSSION OF THE
CONFERENCE REPORT.  EVIDENTLY CONGRESS INTENDED TO GRANT THE
ADMINISTRATOR PLENARY CONTROL OVER COMMODITY PRICES, SINCE THEY
GENERALLY WERE NOT THE SUBJECT OF LOCAL REGULATION, BUT IN BOTH THE
ORIGINAL ACT AND THE AMENDMENT, AS THIS COURT HAS RECENTLY SAID IN
DAVIES WAREHOUSE CO. V. BOWLES, SUPRA, WAS CAREFUL "TO AVOID PARALYZING
OR EXTINGUISHING LOCAL INSTITUTIONS."  THUS IT LIMITED THE RIGHT OF THE
EXECUTIVE TO NOTICE BY THE UTILITY AND THE UTILITY'S CONSENT THAT THE
EXECUTIVE MIGHT BE HEARD BY THE REGULATORY BODY HAVING FINAL AUTHORITY
IN THE PREMISES. 

IF THE PETITIONERS WERE ADMITTED AS INTERVENORS BY A STATE COMMISSION,
OR BY THE DISTRICT COMMISSION, WHICH IS A RESPONDENT HERE, THEY MIGHT,
OF COURSE, BE ADMITTED TO PARTICIPATION IN THE PROCEEDING UPON
REASONABLE TERMS; AND ONE OF THE MOST USUAL PROCEDURAL RULES IS THAT AN
INTERVENOR IS ADMITTED TO THE PROCEEDING AS IT STANDS, AND IN RESPECT
OF THE PENDING ISSUES, BUT IS NOT PERMITTED TO ENLARGE THOSE ISSUES OR
COMPEL AN ALTERATION OF THE NATURE OF THE PROCEEDING.  TO THIS EFFECT
WAS THE COMMISSION'S RULE ON THE SUBJECT.  IT WOULD SEEM THEN THAT, IN
THE ABSENCE OF CLEAR LEGISLATIVE MANDATE TO THE CONTRARY, THE
PETITIONERS SHOULD NOT POSSESS GREATER RIGHTS THAN OTHER INTERVENORS. 

THIS THE PETITIONERS DENY.  THEY SAY THAT, NOTWITHSTANDING THE
ABSENCE OF ANY CATEGORICAL ENACTMENT, THE GENERAL PURPOSE OF THE
ORIGINAL ACT AND ITS SUPPLEMENT SHOW THAT CONGRESS INTENDED TO PROHIBIT
STATE AND LOCAL REGULATORY AUTHORITIES FROM PERMITTING ANY INCREASE IN
UTILITY RATES WHICH WAS NOT SHOWN TO BE NECESSARY TO PREVENT ACTUAL
HARDSHIP.  WE ARE ASKED THEN, NOT ONLY TO REVISE THE VIEWS EXPRESSED IN
DAVIES WAREHOUSE CO. V. BOWLES, SUPRA, AS TO THE SCOPE OF THE ACTS, BUT
TO INFER FROM A GENERAL EXPRESSION OF CONGRESSIONAL POLICY, THE
LIMITATION OF EXISTING POWERS CONFERRED BY LAW ON REGULATORY
COMMISSIONS THROUGHOUT THE NATION, BOTH STATE AND FEDERAL, AND THE
ENDOWMENT OF A DIFFERENT FEDERAL AGENCY WITH NEW AND SUPERIOR RIGHTS
AND POWERS.  FN8  THIS WE ARE UNABLE TO DO. 

THE OTHER CONTENTION OF THE PETITIONERS STEMS FROM THEIR VIEW AS TO
THE EFFECT OF THE EMERGENCY PRICE CONTROL ACT AND THE STABILIZATION
ACT.  THEY INSISTED BELOW THAT THEY WERE DENIED A FAIR HEARING BECAUSE
THE COMMISSION REFUSED, IN THE CURRENT PROCEEDING, TO ALTER AND ENLARGE
THE SCOPE AND THE CHARACTER OF THE INQUIRY.  IT WILL BE REMEMBERED
THAT, UNDER THE COMMISSION'S EXISTING ORDER, A TERMINATION OF THE
SLIDING SCALE ARRANGEMENT REQUIRED NINETY DAYS' WRITTEN NOTICE.  THERE
WAS NO APPLICATION OF ANY RATE PAYER OR ANY PURPOSE OF THE COMMISSION
IN THE SPRING OF 1942 TO ABROGATE THE ARRANGEMENT.  ON THE CONTRARY,
THE COMMISSION GAVE THE REQUIRED NOTICE FOR THE USUAL ANNUAL ADJUSTMENT
UNDER THE PLAN; AND, AFTER THE NECESSARY INVESTIGATIONS BY ITS AGENTS,
GAVE NOTICE OF HEARING WITH RESPECT TO SUCH ADJUSTMENT.  AT THAT POINT,
AND AT A TIME WHEN NO NOTICE OF INCREASE OF RATES WAS REQUIRED BY ANY
ACT OF CONGRESS, THE ADMINISTRATOR, UPON HIS APPLICATION WAS PERMITTED
TO INTERVENE IN THE PROCEEDING. 

IN HIS PETITION, AND AT THE HEARINGS, HE ASSERTED AND REITERATED THAT
HE HAD THE RIGHT TO GO INTO THE PROPRIETY OF THE RATE BASE, THE
OPERATING EXPENSES, INCLUDING DEPRECIATION EXPENSES, TAXES, AND RATE OF
RETURN, SUMMARIZING HIS DEMAND AS "A FULL AND COMPLETE INQUIRY FOR THE
PURPOSE OF DETERMINING WHAT ARE FAIR AND REASONABLE RATES  ...  "  THE
PETITIONERS NOW INSIST THAT THEIR DESIRE WAS LIMITED TO EXAMINATION OF
CERTAIN FACTORS INVOLVED IN THE SLIDING SCALE.  BUT THE COURTS BELOW
DID NOT SO UNDERSTAND.  THE DISTRICT COURT, WHICH SUSTAINED THE APPEAL,
SAID:  "THE COMMISSION WAS REQUESTED TO RECONSIDER THE BASIC PRINCIPLE
OF THE SLIDING-SCALE ARRANGEMENT  ... "  THE COURT OF APPEALS SAID "THE
PRICE ADMINISTRATOR DEPARTED FROM THE FIELD COMMITTED TO HIS CARE AND
DEMANDED THAT THE COMMISSION SUSPEND THE APPLICATION OF THE SLIDING
SCALE, AND REEXAMINE ITS BASIS IN A COMPLETE INVESTIGATION OF ALL THE
ELEMENTS THAT ENTER INTO THE DETERMINATION OF A UTILITY RATE BY A
REGULATORY BODY."  THESE CHARACTERIZATIONS OF THE ADMINISTRATOR'S
CONTENTIONS BEFORE THE COMMISSION ARE SUPPORTED BY THE RECORD. 

IF WE CONSIDER THE PETITIONERS' PRESENT POSITION WE FIND THAT THE
COMMISSION HEARD ALL EVIDENCE OFFERED, AND SAYS IT WEIGHED IT.  THE
ADMINISTRATOR URGED THAT THE STRAIGHTLINE METHOD OF DEPRECIATION
EMBODIED IN THE SINKING FUND PLAN MUST BE DISCARDED IN FAVOR OF A
SINKING FUND METHOD UNDER THE FORCE OF DECISIONS OF THIS COURT, A
POSITION UNSUPPORTED BY OUR CASES, AND EVIDENCE WAS OFFERED TO SHOW THE
RESULT WHICH WOULD ENSUE THE SUBSTITUTION.  SOME TESTIMONY WAS ADDUCED
AS TO RATE OF RETURN, AND THE COMMISSION'S REPORT SHOWS THIS WAS
CONSIDERED.  IN SHORT, IF THE INQUIRY WAS LIMITED TO THE ISSUES
COMPREHENDED IN THE COMMISSION'S ORDER OF INVESTIGATION, THE
PETITIONERS WERE AFFORDED EVERY OPPORTUNITY FOR A FULL HEARING.  ON THE
SUBJECT RESPECTING WHICH THE PETITIONERS WERE ESPECIALLY COMPETENT TO
ENLIGHTEN THE COMMISSION, - NAMELY THE INFLATIONARY EFFECT OF A RATE
INCREASE OF 2.28% FOR ONE YEAR, AMOUNTING, ON THE AVERAGE, TO THREE
CENTS PER MONTH PER CUSTOMER, IN THE LIGHT OF WAGE INCREASES AND
INCREASED COMMODITY PRICES AND OVER-ALL CONDITIONS IN THE NATIONAL
ECONOMY, - NO EVIDENCE WAS TENDERED BY PETITIONERS, IN RESPONSE TO
REPEATED INVITATIONS BY THE COMMISSION. 

THE JUDGMENT IS AFFIRMED. 

FN1  56 STAT. 23. 

FN2  56 STAT. 765. 

FN3  48 F.SUPP.  703. 

FN4  137 F.2D 547. 

FN5  C. 150, 37 STAT. 974; C. 8, 44 STAT. 920; C. 742, 49 STAT. 882;
C. 40, 53 STAT. 569.  D.C. CODE, 1940 ED., TIT. 43 SECS. 101-1006. 

FN6  56 STAT. 36, 50 U.S.C. SEC. 942(C). 

FN7  COMPARE DAVIES WAREHOUSE CO. V. BOWLES, 321 U.S. 144. 

FN8  DAVIES WAREHOUSE CO. V. BOWLES, SUPRA; YONKERS V. UNITED STATES,
320 U.S. 685. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY CONCUR, DISSENTING. 

THIS CASE GOES HAND IN HAND WITH DAVIES WAREHOUSE CO. V. BOWLES, 321
U.S. 144.  THAT DECISION EXPANDED THE "PUBLIC UTILITY" EXEMPTION IN THE
EMERGENCY PRICE CONTROL ACT TO INCLUDE A WIDE VARIETY OF ENTERPRISES. 
THE PRESENT DECISION ILLUSTRATES THE VALUE OF THAT PREFERRED
TREATMENT. 

THE STABILIZATION ACT PROHIBITS ANY "UTILITY" FROM MAKING "ANY
GENERAL INCREASE IN ITS RATES OR CHARGES WHICH WERE IN EFFECT ON
SEPTEMBER 15, 1942" WITHOUT GIVING THE PRESIDENT'S AGENT THE RIGHT TO
INTERVENE IN THE PROCEEDINGS.  THE PRESENT DECISION GOES FAR TOWARDS
MAKING THAT PROVISION INEFFECTIVE.  IT ALLOWS THE COMMISSION SO TO
SHAPE THE ISSUES OF THE RATE PROCEEDING AS TO EXCLUDE THE DATA MOST
RELEVANT TO A DETERMINATION OF WHETHER ANY RATE INCREASE SHOULD BE
ALLOWED.  THE POWER OF A COMMISSION TO SHAPE THE ISSUES AS IT DESIRES
AND TO RESTRICT THE DIRECTOR OF ECONOMIC STABILIZATION TO THOSE ISSUES
IS NOT A POWER WHICH IS APT TO BE NEGLECTED.  THE DIRECTOR MAY OF
COURSE PROCLAIM AGAINST RATE INCREASES.  BUT HE DOES NOT NEED THE RIGHT
TO INTERVENE TO PROVE THAT RATE INCREASES ARE INFLATIONARY.  THAT IS
SELF-EVIDENT.  THE RIGHT TO INTERVENE, IF IT IS NOT A RIGHT TO
INTRODUCE RELEVANT DATA BEARING ON THE TRUE EARNINGS AND RETURNS OF THE
UTILITY, IS AN EMPTY RIGHT INDEED. 

I AGREE THAT CONGRESS DID NOT TRANSFER RATE-MAKING POWERS FROM THE
COMMISSIONS TO THE DIRECTOR.  I AGREE THAT CONGRESS MUST HAVE
CONTEMPLATED THAT SOME RATE INCREASES MIGHT TAKE PLACE OR ELSE IT WOULD
HAVE TREATED THE WHOLE PROBLEM QUITE DIFFERENTLY.  BUT I FIND NOT THE
SLIGHTEST INDICATION THAT THE DIRECTOR WAS TO BE DENIED A FULL
HEARING.  AND I DO NOT SEE HOW A FULL HEARING COULD BE ACCORDED UNLESS
HE WAS GIVEN THE OPPORTUNITY TO ESTABLISH, IF HE COULD, THAT THE CASE
UNDER CONSIDERATION SHOWED NO REAL HARDSHIP, THAT WARTIME DEMANDS WERE
NOT CAUSING THE COMPANY TO SUFFER, THAT ITS FINANCIAL INTEGRITY AND ITS
ABILITY TO RENDER SERVICE REMAINED UNIMPAIRED, THAT ITS PROPERTY WAS
NOT BEING CONFISCATED, THAT IT WAS NOT BEING TREATED UNFAIRLY AS
COMPARED WITH OTHER COMPANIES. 

WE ARE TOLD THAT THIS COMPANY HAS AN INFLATED RATE BASE OF SOME
$1,000,000.  WE ARE TOLD THAT ITS EXCESSIVE CHARGES FOR DEPRECIATION
EXPENSE WERE OVER $225,000 A YEAR AS COMPARED WITH THE RATE INCREASE OF
ABOUT $200,000 A YEAR.  WE ARE TOLD THAT A FULL HEARING WOULD HAVE
DISCLOSED THAT THE COMPANY WAS IN FACT EARNING MORE THAN 6 1/2%.  I DO
NOT KNOW WHAT THE EVIDENCE WOULD SHOW.  BUT AN OFFER OF PROOF IN A RATE
CASE COULD NOT BE MORE RELEVANT. 

I BELIEVE, MOREOVER, THAT WHEN CONGRESS HALTED GENERAL RATE INCREASES
AND GAVE THE DIRECTOR A RIGHT TO INTERVENE, IT DID NOT SANCTION RATE
INCREASES REGARDLESS OF NEED AND REGARDLESS OF INFLATIONARY EFFECT.  I
THINK IT MEANT TO MAKE UTILITY COMMISSIONS AT LEAST PARTIAL
PARTICIPANTS IN THE WAR AGAINST INFLATION AND GAVE THEM A SECTOR OF THE
FRONT TO CONTROL.  THOUGH IT DID NOT REMOVE THE ESTABLISHED STANDARDS
FOR RATE-MAKING, I DO NOT THINK IT INTENDED UTILITY COMMISSIONS TO
PROCEED IN DISREGARD OF THE REQUIREMENTS OF EMERGENCY PRICE CONTROL AND
UNMINDFUL OF THE DANGERS OF GENERAL RATE INCREASES.  TO THE CONTRARY, I
THINK CONGRESS INTENDED THAT THERE SHOULD BE AS GREAT AN ACCOMMODATION
AS POSSIBLE BETWEEN THE OLD STANDARDS AND THE NEW WARTIME NECESSITIES. 
THE FAILURE OF THE COMMISSION TO MAKE THAT ACCOMMODATION IS BEST
ILLUSTRATED PERHAPS BY ITS TREATMENT OF TAXES.  THE COMMISSION ALLOWED
THE COMPANY TO DEDUCT AS OPERATING EXPENSES ALL INCOME TAXES UP TO AND
INCLUDING 31%.  THAT THIS AMOUNT INCLUDES WARTIME TAXES IS EVIDENT FROM
THE FACT THAT THE HIGHEST CORPORATE TAX RATE WHICH PREVAILED FROM 1936
TO 1939 WAS 19%.  WE ALL KNOW THAT THE EXTRAORDINARY EXPENDITURES
INCURRED FOR THE DEFENSE OF THE NATION STARTED WITH THE REVENUE ACT OF
1940.  IT HAS BEEN ACCEPTED PRACTICE TO DEDUCT INCOME TAXES AS WELL AS
OTHER TAXES FROM OPERATING EXPENSES IN DETERMINING RATES FOR PUBLIC
UTILITIES.  GALVESTON ELECTRIC CO. V. GALVESTON, 258 U.S. 388, 399. 
BUT THIS IS WAR, NOT BUSINESS-AS-USUAL.  WHEN INCOME TAXES ARE PASSED
ON TO CONSUMERS, THE INFLATIONARY EFFECT IS OBVIOUS.  AND IT IS SELF
EVIDENT THAT THE ABILITY TO PASS PRESENT WARTIME INCOME TAXES ON TO
OTHERS IS A REMARKABLE PRIVILEGE INDEED. 
..END :



BOWLES V. WILLINGHAM, 321 U.S. 503 


NO. 464.  ARGUED JANUARY 7, 10, 1944.  - DECIDED MARCH 27, 1944.  -
REVERSED. 


1.  UNDER SEC. 205(A) OF THE EMERGENCY PRICE CONTROL ACT OF 1942 AND
SEC. 24(1) OF THE JUDICIAL CODE, AND IN VIEW OF SEC. 204(D) OF THE ACT,
A FEDERAL DISTRICT COURT IN A SUIT BY THE ADMINISTRATOR HAS AUTHORITY
TO ENJOIN A PROCEEDING IN A STATE COURT TO RESTRAIN ISSUANCE BY THE
ADMINISTRATOR OF RENT ORDERS; AND SEC. 265 OF THE JUDICIAL CODE,
FORBIDDING FEDERAL COURTS TO ENJOIN PROCEEDINGS IN STATE COURTS, IS
INAPPLICABLE.  P. 510. 

(A)  CONGRESS MAY DETERMINE WHETHER THE FEDERAL COURTS SHOULD HAVE
EXCLUSIVE JURISDICTION OF CONTROVERSIES WHICH ARISE UNDER THE
CONSTITUTION AND LAWS OF THE UNITED STATES AND WHICH ARE THEREFORE
WITHIN THE JUDICIAL POWER OF THE UNITED STATES AS DEFINED IN ART. III,
SEC. 2 OF THE CONSTITUTION, OR WHETHER THEY SHOULD EXERCISE THAT
JURISDICTION CONCURRENTLY WITH THE COURTS OF THE STATES.  P. 511. 

(B)  THE AUTHORITY OF CONGRESS TO WITHHOLD FROM STATE COURTS ALL
JURISDICTION OF CONTROVERSIES ARISING UNDER THE CONSTITUTION AND LAWS
OF THE UNITED STATES INCLUDES THE POWER TO RESTRICT THE OCCASIONS WHEN
THAT JURISDICTION MAY BE INVOKED.  P. 512. 

2.  BY THE RENT CONTROL PROVISIONS OF THE EMERGENCY PRICE CONTROL ACT
OF 1942, AUTHORIZING THE PRICE ADMINISTRATOR TO FIX MAXIMUM RENTS FOR
HOUSING ACCOMMODATIONS IN DEFENSE-RENTAL AREAS, CONGRESS DID NOT
DELEGATE ITS LEGISLATIVE POWER.  YAKUS V. UNITED STATES, ANTE, P. 414. 
P. 514. 

THE STANDARDS PRESCRIBED BY THE ACT ARE ADEQUATE FOR THE JUDICIAL
REVIEW WHICH IS AFFORDED.  THE FACT THAT THERE IS A ZONE FOR THE
EXERCISE OF DISCRETION BY THE ADMINISTRATOR IS NO MORE FATAL HERE THAN
IN OTHER SITUATIONS WHERE CONGRESS HAS PRESCRIBED THE GENERAL STANDARD
AND HAS LEFT TO AN ADMINISTRATIVE AGENCY THE DETERMINATION OF THE
PRECISE SITUATIONS TO WHICH THE PROVISIONS OF THE ACT WILL BE APPLIED
AND THE WEIGHT TO BE ACCORDED VARIOUS STATUTORY CRITERIA ON GIVEN
FACTS. 

3.  THE REQUIREMENT THAT THE MAXIMUM RENT OR RENTS ESTABLISHED BY THE
ADMINISTRATOR BE "GENERALLY" FAIR AND EQUITABLE, SEC. 2(B), DOES NOT
RENDER THE ACT VIOLATIVE OF THE FIFTH AMENDMENT.  P. 516. 

(A)  THAT PRICE-FIXING IS ON A CLASS BASIS, RATHER THAN ON AN
INDIVIDUAL BASIS, DOES NOT RENDER IT INVALID.  P. 518. 

(B)  THE RESTRAINTS IMPOSED ON THE NATIONAL GOVERNMENT IN THIS REGARD
BY THE FIFTH AMENDMENT ARE NO GREATER THAN THOSE IMPOSED ON THE STATES
BY THE FOURTEENTH.  P. 518. 

(C)  CONGRESS WAS DEALING HERE WITH CONDITIONS CREATED BY ACTIVITIES
RESULTING FROM A GREAT WAR EFFORT; IT WAS UNDER NO CONSTITUTIONAL
NECESSITY OF PROVIDING A SYSTEM OF PRICE CONTROL WHICH WOULD ASSURE
EACH LANDLORD A "FAIR RETURN" ON HIS PROPERTY.  P. 519. 

(D)  AND THOUGH THE LEGISLATION MAY HAVE REDUCED THE VALUE OF THE
PROPERTY BEING REGULATED, THERE WAS NO "TAKING" OF IT.  P. 517. 

4.  THAT LANDLORDS ARE NOT AFFORDED A HEARING BEFORE THE ORDER OR
REGULATION FIXING RENTS BECOMES EFFECTIVE DOES NOT RENDER THE ACT
VIOLATIVE OF THE FIFTH AMENDMENT.  PROVISION FOR JUDICIAL REVIEW AFTER
THE ORDER OR REGULATION BECOMES EFFECTIVE SATISFIES THE REQUIREMENTS OF
DUE PROCESS UNDER THESE CIRCUMSTANCES.  P. 519. 

5.  QUESTIONS AS TO THE VALIDITY OF ORDERS OR REGULATIONS ISSUED
PURSUANT TO THE ACT MAY BE CONSIDERED ONLY BY THE EMERGENCY COURT OF
APPEALS ON THE REVIEW PROVIDED BY SEC. 204.  P. 521. 

BOWLES, PRICE ADMINISTRATOR, V. WILLINGHAM ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE
DISTRICT OF GEORGIA. 

DIRECT APPEAL FROM AN ORDER OF THE DISTRICT COURT DISMISSING A SUIT
BY THE PRICE ADMINISTRATOR ON THE GROUND OF THE UNCONSTITUTIONALITY OF
THE RENT PROVISIONS OF THE EMERGENCY PRICE CONTROL ACT OF 1942 AND
REGULATIONS PROMULGATED PURSUANT THERETO. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLEE, MRS. WILLINGHAM OF MACON, GEORGIA, SUED IN A GEORGIA COURT
TO RESTRAIN THE ISSUANCE OF CERTAIN RENT ORDERS UNDER THE EMERGENCY
PRICE CONTROL ACT OF 1942(56 STAT. 23, 50 U.S.C. APP. (SUPP. II) SEC.
901) ON THE GROUND THAT THE ORDERS AND THE STATUTORY PROVISIONS ON
WHICH THEY RESTED WERE UNCONSTITUTIONAL.  THE STATE COURT ISSUED, EX
PARTE, A TEMPORARY INJUNCTION AND A SHOW CAUSE ORDER.  THEREUPON
APPELLANT, ADMINISTRATOR OF THE OFFICE OF PRICE ADMINISTRATION, BROUGHT
THIS SUIT IN THE FEDERAL DISTRICT COURT PURSUANT TO SEC. 205(A) OF THE
ACT AND SEC. 24(1) OF THE JUDICIAL CODE TO RESTRAIN MRS. WILLINGHAM
FROM FURTHER PROSECUTION OF THE STATE PROCEEDINGS AND FROM VIOLATION OF
THE ACT, AND TO RESTRAIN APPELLEE HICKS, BIBB COUNTY SHERIFF, FROM
EXECUTING OR ATTEMPTING TO EXECUTE ANY ORDERS IN THE STATE
PROCEEDINGS.  THE DISTRICT COURT IN RELIANCE ON ITS EARLIER RULING IN
PAYNE V. GRIFFIN, 51 F.SUPP.  588, DISMISSED THE ADMINISTRATOR'S SUIT
ON BILL AND ANSWER, HOLDING THAT THE ORDERS IN QUESTION AND THE
PROVISIONS OF THE ACT ON WHICH THEY RESTED WERE UNCONSTITUTIONAL.  THE
CASE IS HERE ON DIRECT APPEAL.  50 STAT. 752, 28 U.S.C. SEC. 349(A). 

SEC. 2(B) OF THE ACT PROVIDES IN PART THAT, "WHENEVER IN THE JUDGMENT
OF THE ADMINISTRATOR SUCH ACTION IS NECESSARY OR PROPER IN ORDER TO
EFFECTUATE THE PURPOSES OF THIS ACT, HE SHALL ISSUE A DECLARATION
SETTING FORTH THE NECESSITY FOR, AND RECOMMENDATIONS WITH REFERENCE TO,
THE STABILIZATION OR REDUCTION OF RENTS FOR ANY DEFENSE-AREA HOUSING
ACCOMMODATIONS WITHIN A PARTICULAR DEFENSERENTAL AREA."  PURSUANT TO
THAT AUTHORITY THE ADMINISTRATOR ON APRIL 28, 1942, ISSUED A
DECLARATION DESIGNATING TWENTY-EIGHT AREAS IN VARIOUS PARTS OF THE
COUNTRY, INCLUDING MACON, GEORGIA, AS DEFENSE-RENTAL AREAS.  7 FED.
REG. 3193.  THAT DECLARATION STATED THAT DEFENSE ACTIVITIES HAD
RESULTED IN INCREASED HOUSING RENTS IN THOSE AREAS  FN1  AND THAT IT
WAS NECESSARY AND PROPER IN ORDER TO EFFECTUATE THE PURPOSES OF THE ACT
TO STABILIZE AND REDUCE SUCH RENTS.  IT ALSO CONTAINED A RECOMMENDATION
PURSUANT TO SEC. 2(B) THAT THE MAXIMUM RENT FOR HOUSING ACCOMMODATIONS
RENTED ON APRIL 1, 1941, SHOULD BE THE RENTAL FOR SUCH ACCOMMODATIONS
ON THAT DATE; FN2  AND THAT IN CASE OF ACCOMMODATIONS NOT RENTED ON
APRIL 1, 1941, OR CONSTRUCTED THEREAFTER PROVISIONS FOR THE
DETERMINATION, ADJUSTMENT, AND MODIFICATION OF MAXIMUM RENTS SHOULD BE
MADE, SUCH RENTS TO BE IN PRINCIPLE NO GREATER THAN THE GENERALLY
PREVAILING RENTS IN THE PARTICULAR AREA ON APRIL 1, 1941.  THE
DECLARATION ALSO STATED IN ACCORDANCE WITH THE PROVISIONS OF SEC. 2(B)
FN3  THAT IF WITHIN SIXTY DAYS AFTER APRIL 28, 1942, SUCH RENTS WITHIN
THE AREAS IN QUESTION HAD NOT BEEN STABILIZED OR REDUCED BY STATE OR
LOCAL REGULATION OR OTHERWISE IN ACCORDANCE WITH THE ADMINISTRATOR'S
RECOMMENDATION, THE ADMINISTRATOR MIGHT FIX THE MAXIMUM RENTS. 

ON JUNE 30, 1942, THE ADMINISTRATOR ISSUED MAXIMUM RENT REGULATION
NO. 26, EFFECTIVE JULY 1, 1942, ESTABLISHING THE MAXIMUM LEGAL RENTS
FOR HOUSING IN THESE DEFENSE AREAS, INCLUDING MACON, GEORGIA.  7 FED.
REG. 4905.  IT RECITED THAT THE RENTALS HAD NOT BEEN REDUCED OR
STABILIZED SINCE THE DECLARATION OF APRIL 28, 1942, AND THAT DEFENSE
ACTIVITIES HAD RESULTED IN INCREASES IN THE RENTALS ON OR ABOUT APRIL
1, 1941, BUT NOT PRIOR TO THAT DATE.  THE MAXIMUM RENTALS FIXED FOR
HOUSING ACCOMMODATIONS RENTED ON APRIL 1, 1941 WERE THE RENTS OBTAINED
ON THAT DATE.  SEC. 1388.1704(A).  AS RESPECTS HOUSING ACCOMMODATIONS
NOT RENTED ON APRIL 1, 1941, BUT RENTED FOR THE FIRST TIME BETWEEN THAT
DATE AND THE EFFECTIVE DATE OF THE REGULATION, JULY 1, 1942 - THE
SITUATION INVOLVED IN THIS CASE - IT WAS PROVIDED THAT THE MAXIMUM RENT
SHOULD BE THE FIRST RENT CHARGED AFTER APRIL 1, 1941.  SEC.
1388.1704(C).  BUT IN THAT CASE IT WAS PROVIDED THAT THE RENT DIRECTOR
(DESIGNATED BY SEC. 1388.1713) MIGHT ORDER A DECREASE ON HIS OWN
INITIATIVE ON THE GROUND, AMONG OTHERS, THAT THE RENT WAS HIGHER THAN
THAT GENERALLY PREVAILING IN THE AREA FOR COMPARABLE HOUSING
ACCOMMODATIONS ON APRIL 1, 1941.  SEC. 1388.1704(C), SEC.
1388.1705(C)(1).  BY PROCEDURAL REGULATION NO. 3, AS AMENDED (8 FED.
REG. 526, 1798, 3534, 5481, 14811) ISSUED PURSUANT TO SEC. 201(D) AND
SEC. 203(A) OF THE ACT  FN4  PROVISION WAS MADE THAT WHEN THE RENT
DIRECTOR PROPOSED TO TAKE SUCH ACTION HE SHOULD SERVE A NOTICE UPON THE
LANDLORD INVOLVED, STATING THE PROPOSED ACTION AND THE GROUNDS
THEREFOR.  SEC. 1300.207.  WITHIN 60 DAYS OF THE FINAL ACTION OF THE
RENT DIRECTOR THE LANDLORD MIGHT FILE AN APPLICATION FOR REVIEW BY THE
REGIONAL ADMINISTRATOR FOR THE REGION IN WHICH THE DEFENSE-RENTAL AREA
OFFICE WAS LOCATED AND THEN FILE A PROTEST WITH THE ADMINISTRATOR FOR
REVIEW OF THE ACTION OF THE REGIONAL OFFICE (SEC. 1300.209, SEC.
1300.210); OR HE MIGHT PROCEED BY PROTEST IMMEDIATELY.  SEC. 1300.209,
SEC. 1300.215.  AS WE DEVELOP MORE FULLY HEREAFTER, THE ACT PROVIDES IN
SEC. 203(A) FOR THE FILING OF PROTESTS WITH THE ADMINISTRATOR.  THE
MACHINERY FOR A HEARING ON A PROTEST AND A DETERMINATION OF THE ISSUE
BY THE ADMINISTRATOR (SEC. 1300.215-SEC.  1300.240) WAS DESIGNED TO
PROVIDE THE BASIS OF JUDICIAL REVIEW BY THE EMERGENCY COURT OF APPEALS
AS AUTHORIZED BY SEC. 204(A) OF THE ACT. 

IN JUNE, 1943, THE RENT DIRECTOR GAVE WRITTEN NOTICE TO MRS.
WILLINGHAM THAT HE PROPOSED TO DECREASE THE MAXIMUM RENTS FOR THREE
APARTMENTS OWNED BY HER, AND WHICH HAD NOT BEEN RENTED ON APRIL 1,
1941, BUT WERE FIRST RENTED IN THE SUMMER OF 1941, ON THE GROUND THAT
THE FIRST RENTS FOR THESE APARTMENTS RECEIVED AFTER APRIL 1, 1941, WERE
IN EXCESS OF THOSE GENERALLY PREVAILING IN THE AREA FOR COMPARABLE
ACCOMMODATIONS ON APRIL 1, 1941.  MRS. WILLINGHAM FILED OBJECTIONS TO
THAT PROPOSED ACTION TOGETHER WITH SUPPORTING AFFIDAVITS.  THE RENT
DIRECTOR THEREUPON ADVISED HER THAT HE WOULD PROCEED TO ISSUE AN ORDER
REDUCING THE RENTS.  BEFORE THAT WAS DONE SHE FILED HER BILL IN THE
GEORGIA COURT.  THE PRESENT SUIT FOLLOWED SHORTLY, AS WE HAVE SAID. 

1.  WE ARE MET AT THE OUTSET WITH THE QUESTION WHETHER THE DISTRICT
COURT COULD IN ANY EVENT GIVE THE RELIEF WHICH THE ADMINISTRATOR SEEKS
IN VIEW OF SEC. 265 OF THE JUDICIAL CODE (36 STAT. 1162, 28 U.S.C. SEC.
379) WHICH PROVIDES THAT "THE WRIT OF INJUNCTION SHALL NOT BE GRANTED
BY ANY COURT OF THE UNITED STATES TO STAY PROCEEDINGS IN ANY COURT OF A
STATE, EXCEPT IN CASES WHERE SUCH INJUNCTION MAY BE AUTHORIZED BY ANY
LAW RELATING TO PROCEEDINGS IN BANKRUPTCY."  WE RECENTLY HAD OCCASION
TO CONSIDER THE HISTORY OF SEC. 265 AND THE EXCEPTIONS WHICH HAVE BEEN
ENGRAFTED ON IT.  TOUCEY V. NEW YORK LIFE INS. CO., 314 U.S. 118.  IN
THAT CASE WE LISTED THE FEW ACTS OF CONGRESS PASSED SINCE ITS FIRST
ENACTMENT IN 1793 WHICH OPERATE AS IMPLIED LEGISLATIVE AMENDMENTS TO
IT.  314 U.S. PP. 132-134.  THERE SHOULD NOW BE ADDED TO THAT LIST THE
EXCEPTION CREATED BY THE EMERGENCY PRICE CONTROL ACT OF 1942.  BY SEC.
205(A) THE ADMINISTRATOR IS GIVEN AUTHORITY TO SEEK INJUNCTIVE RELIEF
IN THE APPROPRIATE COURT (INCLUDING THE FEDERAL DISTRICT COURTS)
AGAINST ACTS OR PRACTICES IN VIOLATION OF SEC. 4, E.G., THE RECEIPT OF
RENT IN VIOLATION OF ANY REGULATION OR ORDER UNDER SEC. 2.  MOREOVER,
BY SEC. 204(D) OF THE ACT ONE WHO SEEKS TO RESTRAIN OR SET ASIDE ANY
ORDER OF THE ADMINISTRATOR OR ANY PROVISION OF THE ACT IS CONFINED TO
THE JUDICIAL REVIEW GRANTED TO THE EMERGENCY COURT OF APPEALS, WHICH
WAS CREATED BY SEC. 204(C) AND TO THIS COURT.  FN5  AS WE RECENTLY HELD
IN LOCKERTY V. PHILLIPS, 319 U.S. 182, 186, 187, CONGRESS CONFINED
JURISDICTION TO GRANT EQUITABLE RELIEF TO THAT NARROW CHANNEL AND
WITHHELD SUCH JURISDICTION FROM EVERY OTHER FEDERAL AND STATE COURT. 
CONGRESS THUS PREEMPTED JURISDICTION IN FAVOR OF THE EMERGENCY COURT TO
THE EXCLUSION OF STATE COURTS.  FN6  THE RULE EXPRESSED IN SEC. 265
WHICH IS DESIGNED TO AVOID COLLISIONS BETWEEN STATE AND FEDERAL
AUTHORITIES (TOUCEY V. NEW YORK LIFE INS. CO., SUPRA) THUS DOES NOT
COME INTO PLAY.  THE POWERS OF THE DISTRICT COURT UNDER SEC. 205(A) OF
THE ACT AND SEC. 24(1) OF THE JUDICIAL CODE ARE AMPLE AUTHORITY FOR
THAT COURT TO PROTECT THE EXCLUSIVE FEDERAL JURISDICTION WHICH CONGRESS
CREATED. 

THE SUGGESTION IS MADE THAT CONGRESS COULD NOT CONSTITUTIONALLY
WITHHOLD FROM THE COURTS OF THE STATES JURISDICTION TO ENTERTAIN SUITS
ATTACKING THE ACT ON CONSTITUTIONAL GROUNDS.  BUT WE HAVE HERE A
CONTROVERSY WHICH ARISES UNDER THE CONSTITUTION AND LAWS OF THE UNITED
STATES AND IS THEREFORE WITHIN THE JUDICIAL POWER OF THE UNITED STATES
AS DEFINED IN ART. III, SEC. 2 OF THE CONSTITUTION.  HENCE CONGRESS
COULD DETERMINE WHETHER THE FEDERAL COURTS WHICH IT ESTABLISHED SHOULD
HAVE EXCLUSIVE JURISDICTION OF SUCH CASES OR WHETHER THEY SHOULD
EXERCISE THAT JURISDICTION CONCURRENTLY WITH THE COURTS OF THE STATES. 
PLAQUEMINES FRUIT CO. V. HENDERSON, 170 U.S. 511, 517; THE MOSES
TAYLOR, 4 WALL.  411, 428-430.  AND SEE TENNESSEE V. DAVIS, 100 U.S.
257; MCKAY V. KALYTON, 204 U.S. 458, 468-469.  UNDER THE PRESENT ACT
ALL JURISDICTION HAS NOT BEEN WITHHELD FROM STATE COURTS, SINCE THEY
HAVE CONCURRENT JURISDICTION OVER ALL CIVIL ENFORCEMENT SUITS BROUGHT
BY THE ADMINISTRATOR.  SEC. 205(C).  BUT THE AUTHORITY OF CONGRESS TO
WITHHOLD ALL JURISDICTION FROM THE STATE COURTS OBVIOUSLY INCLUDES THE
POWER TO RESTRICT THE OCCASIONS WHEN THAT JURISDICTION MAY BE INVOKED. 

II.  THE QUESTION OF THE CONSTITUTIONALITY OF THE RENT CONTROL
PROVISIONS OF THE ACT  FN7 RAISES ISSUES RELATED TO THOSE CONSIDERED IN
YAKUS V. UNITED STATES, ANTE, P. 414. 

WHEN IT CAME TO RENTS CONGRESS PURSUED THE POLICY IT ADOPTED
RESPECTING COMMODITY PRICES.  IT ESTABLISHED STANDARDS FOR
ADMINISTRATIVE ACTION AND LEFT WITH THE ADMINISTRATOR THE DECISION WHEN
THE RENT CONTROLS OF THE ACT SHOULD BE INVOKED.  HE IS EMPOWERED TO FIX
MAXIMUM RENTS FOR HOUSING ACCOMMODATIONS IN ANY DEFENSE-RENTAL AREA,
FN8  WHENEVER IN HIS JUDGMENT THAT ACTION IS NECESSARY OR PROPER IN
ORDER TO EFFECTUATE THE PURPOSES OF THE ACT.  A DEFENSE-RENTAL AREA IS
ANY AREA "DESIGNATED BY THE ADMINISTRATOR AS AN AREA WHERE DEFENSE
ACTIVITIES HAVE RESULTED OR THREATEN TO RESULT IN AN INCREASE IN THE
RENTS FOR HOUSING ACCOMMODATIONS INCONSISTENT WITH THE PURPOSES" OF THE
ACT.  SEC. 302(D).  THE CONTROLS ADOPTED BY CONGRESS WERE THOUGHT
NECESSARY "IN THE INTEREST OF THE NATIONAL DEFENSE AND SECURITY" AND
FOR THE "EFFECTIVE PROSECUTION OF THE PRESENT WAR."  SEC. 1(A).  THEY
HAVE AS THEIR AIM THE EFFECTIVE PROTECTION OF OUR PRICE STRUCTURES
AGAINST THE FORCES OF DISORGANIZATION AND THE PRESSURES CREATED BY WAR
AND ITS ATTENDANT ACTIVITIES.  FN9 SEC. 1(A); S. REP. NO. 931, 77TH
CONG., 2D SESS., PP. 1-5.  THUS THE POLICY OF THE ACT IS CLEAR.  THE
MAXIMUM RENTS FIXED BY THE ADMINISTRATOR ARE THOSE WHICH "IN HIS
JUDGMENT" WILL BE "GENERALLY FAIR AND EQUITABLE AND WILL EFFECTUATE THE
PURPOSES OF THIS ACT."  SEC. 2(B).  BUT CONGRESS DID NOT LEAVE THE
ADMINISTRATOR WITH THAT GENERAL STANDARD; IT SUPPLIED CRITERIA FOR ITS
APPLICATION BY STATING THAT SO FAR AS PRACTICABLE THE ADMINISTRATOR IN
ESTABLISHING ANY MAXIMUM RENT SHOULD ASCERTAIN AND GIVE CONSIDERATION
TO THE RENTS PREVAILING FOR THE ACCOMMODATIONS, OR COMPARABLE ONES, ON
APRIL 1, 1941.  THE ADMINISTRATOR, HOWEVER, MAY CHOOSE AN EARLIER OR
LATER DATE IF DEFENSE ACTIVITIES HAVE CAUSED INCREASED RENTS PRIOR OR
SUBSEQUENT TO APRIL 1, 1941.  BUT IN NO EVENT MAY THE ADMINISTRATOR
SELECT A DATE EARLIER THAN APRIL 1, 1940.  AND IN DETERMINING A MAXIMUM
RENT "HE SHALL MAKE ADJUSTMENTS FOR SUCH RELEVANT FACTORS AS HE MAY
DETERMINE AND DEEM TO BE OF GENERAL APPLICABILITY IN RESPECT OF SUCH
ACCOMMODATIONS, INCLUDING INCREASES OR DECREASES IN PROPERTY TAXES AND
OTHER COSTS."  SEC. 2(B).  AND CONGRESS HAS PROVIDED THAT THE
ADMINISTRATOR "MAY PROVIDE FOR SUCH ADJUSTMENTS AND REASONABLE
EXCEPTIONS" AS IN HIS JUDGMENT ARE "NECESSARY OR PROPER IN ORDER TO
EFFECTUATE THE PURPOSES OF THIS ACT."  SEC. 2(C). 

THE CONSIDERATIONS WHICH SUPPORT THE DELEGATION OF AUTHORITY UNDER
THIS ACT OVER COMMODITY PRICES (YAKUS V. UNITED STATES) ARE EQUALLY
APPLICABLE HERE.  THE POWER TO LEGISLATE WHICH THE CONSTITUTION SAYS
"SHALL BE VESTED" IN CONGRESS (ART. I, SEC. 1) HAS NOT BEEN GRANTED TO
THE ADMINISTRATOR.  CONGRESS IN SEC. 1(A) OF THE ACT HAS MADE CLEAR ITS
POLICY OF WAGING WAR ON INFLATION.  IN SEC. 2(B) IT HAS DEFINED THE
CIRCUMSTANCES WHEN ITS ANNOUNCED POLICY IS TO BE DECLARED OPERATIVE AND
THE METHOD BY WHICH IT IS TO BE EFFECTUATED.  THOSE STEPS CONSTITUTE
THE PERFORMANCE OF THE LEGISLATIVE FUNCTION IN THE CONSTITUTIONAL
SENSE.  OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126, 144.    THERE
IS NO GRANT OF UNBRIDLED ADMINISTRATIVE DISCRETION AS APPELLEE ARGUES. 
CONGRESS HAS NOT TOLD THE ADMINISTRATOR TO FIX RENTS WHENEVER AND
WHEREVER HE MIGHT LIKE AND AT WHATEVER LEVELS HE PLEASES.  CONGRESS HAS
DIRECTED THAT MAXIMUM RENTS BE FIXED IN THOSE AREAS WHERE DEFENSE
ACTIVITIES HAVE RESULTED OR THREATEN TO RESULT IN INCREASED RENTALS
INCONSISTENT WITH THE PURPOSE OF THE ACT.  AND IT HAS SUPPLIED THE
STANDARD AND THE BASE PERIOD TO GUIDE THE ADMINISTRATOR IN DETERMINING
WHAT THE MAXIMUM RENTALS SHOULD BE IN A GIVEN AREA.  THE CRITERIA TO
GUIDE THE ADMINISTRATOR ARE CERTAINLY NOT MORE VAGUE THAN THE STANDARDS
GOVERNING THE DETERMINATION BY THE SECRETARY OF AGRICULTURE IN UNITED
STATES V. ROCK ROYAL CO-OP., 307 U.S. 533, 576-577, OF MARKETING AREAS
AND MINIMUM PRICES FOR MILK.  THE QUESTION OF HOW FAR CONGRESS SHOULD
GO IN FILLING IN THE DETAILS OF THE STANDARDS WHICH ITS ADMINISTRATIVE
AGENCY IS TO APPLY RAISES LARGE ISSUES OF POLICY.  SUNSHINE ANTHRACITE
COAL CO. V. ADKINS, 310 U.S. 381, 398.  WE RECENTLY STATED IN
CONNECTION WITH THIS PROBLEM OF DELEGATION, "THE CONSTITUTION, VIEWED
AS A CONTINUOUSLY OPERATIVE CHARTER OF GOVERNMENT, IS NOT TO BE
INTERPRETED AS DEMANDING THE IMPOSSIBLE OR THE IMPRACTICABLE."  OPP
COTTON MILLS V. ADMINISTRATOR, SUPRA, P. 145.  IN TERMS OF HARD-HEADED
PRACTICALITIES CONGRESS FREQUENTLY COULD NOT PERFORM ITS FUNCTIONS IF
IT WERE REQUIRED TO MAKE AN APPRAISAL OF THE MYRIAD OF FACTS APPLICABLE
TO VARYING SITUATIONS, AREA BY AREA THROUGHOUT THE LAND, AND THEN TO
DETERMINE IN EACH CASE WHAT SHOULD BE DONE.  CONGRESS DOES NOT ABDICATE
ITS FUNCTIONS WHEN IT DESCRIBES WHAT JOB MUST BE DONE, WHO MUST DO IT,
AND WHAT IS THE SCOPE OF HIS AUTHORITY.  IN OUR COMPLEX ECONOMY THAT
INDEED IS FREQUENTLY THE ONLY WAY IN WHICH THE LEGISLATIVE PROCESS CAN
GO FORWARD.  WHETHER A PARTICULAR GRANT OF AUTHORITY TO AN OFFICER OR
AGENCY IS WISE OR UNWISE, RAISES QUESTIONS WHICH ARE NONE OF OUR
CONCERN.  OUR INQUIRY ENDS WITH THE CONSTITUTIONAL ISSUE.  CONGRESS
HERE HAS SPECIFIED THE BASIC CONCLUSIONS OF FACT UPON THE ASCERTAINMENT
OF WHICH BY THE ADMINISTRATOR ITS STATUTORY COMMAND IS TO BECOME
EFFECTIVE.  BUT THAT IS NOT ALL.  THE ADMINISTRATOR ON THE DENIAL OF
PROTESTS MUST INFORM THE PROTESTANT OF THE "GROUNDS UPON WHICH" THE
DECISION IS BASED AND OF ANY "ECONOMIC DATA AND OTHER FACTS OF WHICH
THE ADMINISTRATOR HAS TAKEN OFFICIAL NOTICE."  SEC. 203(A).  THESE
MATERIALS AND THE GROUNDS FOR DECISION WHICH THEY FURNISHED ARE
INCLUDED IN THE TRANSCRIPT ON WHICH JUDICIAL REVIEW IS BASED.  SEC.
204(A).  WE FAIL TO SEE HOW MORE COULD BE REQUIRED (TAYLOR V. BROWN,
137 F.2D 654, 658-659) UNLESS WE WERE TO SAY THAT CONGRESS RATHER THAN
THE ADMINISTRATOR SHOULD DETERMINE THE EXACT RENTALS WHICH MRS.
WILLINGHAM MIGHT EXACT. 

AS WE HAVE POINTED OUT AND AS MORE FULLY DEVELOPED IN YAKUS V. UNITED
STATES, SUPRA, SEC. 203(A) OF THE ACT PROVIDES FOR THE FILING OF A
PROTEST WITH THE ADMINISTRATOR AGAINST ANY REGULATION OR ORDER UNDER
SEC. 2.  MOREOVER, ANY PERSON "AGGRIEVED" MAY SECURE JUDICIAL REVIEW OF
THE ACTION OF THE ADMINISTRATOR IN THE EMERGENCY COURT OF APPEALS. 
SEC. 204(A).  AND THAT REVIEW IS ON A TRANSCRIPT WHICH INCLUDES "A
STATEMENT SETTING FORTH, SO FAR AS PRACTICABLE, THE ECONOMIC DATA AND
OTHER FACTS OF WHICH THE ADMINISTRATOR HAS TAKEN OFFICIAL NOTICE." 
SEC. 204(A).  HERE, AS IN THE YAKUS CASE, THE STANDARDS PRESCRIBED BY
THE ACT ARE ADEQUATE FOR THE JUDICIAL REVIEW WHICH HAS BEEN ACCORDED. 
THE FACT THAT THERE IS A ZONE FOR THE EXERCISE OF DISCRETION BY THE
ADMINISTRATOR IS NO MORE FATAL HERE THAN IN OTHER SITUATIONS WHERE
CONGRESS HAS PRESCRIBED THE GENERAL STANDARD AND HAS LEFT TO AN
ADMINISTRATIVE AGENCY THE DETERMINATION OF THE PRECISE SITUATIONS TO
WHICH THE PROVISIONS OF THE ACT WILL BE APPLIED AND THE WEIGHT TO BE
ACCORDED VARIOUS STATUTORY CRITERIA ON GIVEN FACTS.  OPP COTTON MILLS
V. ADMINISTRATOR, SUPRA; YAKUS V. UNITED STATES, SUPRA. 

THUS SO FAR AS DELEGATION OF AUTHORITY IS CONCERNED, THE RENT CONTROL
PROVISIONS OF THE ACT, LIKE THE PRICE CONTROL PROVISIONS (YAKUS V.
UNITED STATES, SUPRA), MEET THE REQUIREMENTS WHICH THIS COURT HAS
PREVIOUSLY HELD TO BE ADEQUATE FOR PEACETIME LEGISLATION. 

III.  IT IS SAID, HOWEVER, THAT SEC. 2(B) OF THE ACT IS
UNCONSTITUTIONAL BECAUSE IT REQUIRES THE ADMINISTRATOR TO FIX MAXIMUM
RENTS WHICH ARE "GENERALLY FAIR AND EQUITABLE."  THE ARGUMENT IS THAT A
RENTAL WHICH IS "GENERALLY FAIR AND EQUITABLE" MAY BE MOST UNFAIR AND
INEQUITABLE AS APPLIED TO A PARTICULAR LANDLORD AND THAT A STATUTE
WHICH DOES NOT PROVIDE FOR A FAIR RENTAL TO EACH LANDLORD IS
UNCONSTITUTIONAL.  DURING THE FIRST WORLD WAR THE STATUTE FOR THE
CONTROL OF RENTS IN THE DISTRICT OF COLUMBIA PROVIDED MACHINERY FOR
SECURING TO A LANDLORD A REASONABLE RENTAL.  BLOCK V. HIRSH, 256 U.S.
135, 157.  AND SEE EDGAR A. LEVY LEASING CO. V. SIEGEL, 258 U.S. 242. 
AND UNDER OTHER PRICE-FIXING STATUTES SUCH AS THE NATURAL GAS ACT OF
1938(52 STAT. 821, 15 U.S.C. SEC. 717) CONGRESS HAS PROVIDED FOR THE
FIXING OF RATES WHICH ARE JUST AND REASONABLE IN THEIR APPLICATION TO
PARTICULAR PERSONS OR COMPANIES.  FEDERAL POWER COMMISSION V. HOPE
NATURAL GAS CO., 320 U.S. 591.  CONGRESS DEPARTED FROM THAT PATTERN
WHEN IT CAME TO THE PRESENT ACT.  IT HAS BEEN POINTED OUT THAT ANY
ATTEMPT TO FIX RENTS, LANDLORD BY LANDLORD, AS IN THE FASHION OF
UTILITY RATES, WOULD HAVE BEEN QUITE IMPOSSIBLE.  WILSON V. BROWN, 137
F.2D 348, 352-354.  SUCH CONSIDERATIONS OF FEASIBILITY AND PRACTICALITY
ARE CERTAINLY GERMANE TO THE CONSTITUTIONAL ISSUE.  JACOB RUPPERT V.
CAFFEY, 251 U.S. 264, 299; OPP COTTON MILLS V. ADMINISTRATOR, SUPRA, P.
145.  MOREOVER, THERE WOULD BE NO CONSTITUTIONAL OBJECTION IF CONGRESS
AS A WAR EMERGENCY MEASURE HAD ITSELF FIXED THE MAXIMUM RENTS IN THESE
AREAS.  WE ARE NOT DEALING HERE WITH A SITUATION WHICH INVOLVES A
"TAKING" OF PROPERTY.  WILSON V. BROWN, SUPRA.  BY SEC. 4(D) OF THE ACT
IT IS PROVIDED THAT "NOTHING IN THIS ACT SHALL BE CONSTRUED TO REQUIRE
ANY PERSON TO SELL ANY COMMODITY OR TO OFFER ANY ACCOMMODATIONS FOR
RENT."  THERE IS NO REQUIREMENT THAT THE APARTMENTS IN QUESTION BE USED
FOR PURPOSES WHICH BRING THEM UNDER THE ACT.  OF COURSE, PRICE CONTROL,
THE SAME AS OTHER FORMS OF REGULATION, MAY REDUCE THE VALUE OF THE
PROPERTY REGULATED.  BUT, AS WE HAVE POINTED OUT IN THE HOPE NATURAL
GAS CO. CASE (320 U.S. P. 601), THAT DOES NOT MEAN THAT THE REGULATION
IS UNCONSTITUTIONAL.  MR. JUSTICE HOLMES, SPEAKING FOR THE COURT,
STATED IN BLOCK V. HIRSH, SUPRA, P. 155:  "THE FACT THAT TANGIBLE
PROPERTY IS ALSO VISIBLE TENDS TO GIVE A RIGIDITY TO OUR CONCEPTION OF
OUR RIGHTS IN IT THAT WE DO NOT ATTACH TO OTHERS LESS CONCERTELY
CLOTHED.  BUT THE NOTION THAT THE FORMER ARE EXEMPT FROM THE
LEGISLATIVE MODIFICATION REQUIRED FROM TIME TO TIME IN CIVILIZED LIFE
IS CONTRADICTED NOT ONLY BY THE DOCTRINE OF EMINENT DOMAIN, UNDER WHICH
WHAT IS TAKEN IS PAID FOR, BUT BY THAT OF THE POLICE POWER IN ITS
PROPER SENSE, UNDER WHICH PROPERTY RIGHTS MAY BE CUT DOWN, AND TO THAT
EXTENT TAKEN, WITHOUT PAY."  A MEMBER OF THE CLASS WHICH IS REGULATED
MAY SUFFER ECONOMIC LOSSES NOT SHARED BY OTHERS.  HIS PROPERTY MAY LOSE
UTILITY AND DEPRECIATE IN VALUE AS A CONSEQUENCE OF REGULATION.  BUT
THAT HAS NEVER BEEN A BARRIER TO THE EXERCISE OF THE POLICE POWER. 
L'HOTE V. NEW ORLEANS, 177 U.S. 587, 598; WELCH V. SWASEY, 214 U.S. 91;
HEBE CO. V. SHAW, 248 U.S. 297; PIERCE OIL CORP. V. CITY OF HOPE, 248
U.S. 498; HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146, 157;
EUCLID V. AMBLER REALTY CO., 272 U.S. 365; WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379.  AND THE RESTRAINTS IMPOSED ON THE NATIONAL
GOVERNMENT IN THIS REGARD BY THE FIFTH AMENDMENT ARE NO GREATER THAN
THOSE IMPOSED ON THE STATES BY THE FOURTEENTH.  HAMILTON V. KENTUCKY
DISTILLERIES CO., SUPRA; UNITED STATES V. DARBY, 312 U.S. 100. 

IT IS IMPLICIT IN CASES SUCH AS NEBBIA V. NEW YORK, 291 U.S. 502,
WHICH INVOLVED THE POWER OF NEW YORK TO FIX THE MINIMUM AND MAXIMUM
PRICES OF MILK, AND SUNSHINE ANTHRACITE COAL CO. V. ADKINS, SUPRA,
WHICH INVOLVED THE POWER OF THE BITUMINOUS COAL COMMISSION TO FIX
MINIMUM AND MAXIMUM PRICES OF BITUMINOUS COAL, THAT HIGH COST OPERATORS
MAY BE MORE SERIOUSLY AFFECTED BY PRICE CONTROL THAN OTHERS.  BUT IT
HAS NEVER BEEN THOUGHT THAT PRICE-FIXING, OTHERWISE VALID, WAS IMPROPER
BECAUSE IT WAS ON A CLASS RATHER THAN AN INDIVIDUAL BASIS.  INDEED, THE
DECISION IN MUNN V. ILLINOIS, 94 U.S. 113, THE PIONEER CASE IN THIS
COURT, INVOLVED A LEGISLATIVE SCHEDULE OF MAXIMUM PRICES FOR A DEFINED
CLASS OF WAREHOUSES AND WAS SUSTAINED ON THAT BASIS.  WE NEED NOT
DETERMINE WHAT CONSTITUTIONAL LIMITS THERE ARE TO PRICE-FIXING
LEGISLATION.  CONGRESS WAS DEALING HERE WITH CONDITIONS CREATED BY
ACTIVITIES RESULTING FROM A GREAT WAR EFFORT.  YAKUS V. UNITED STATES,
SUPRA.  A NATION WHICH CAN DEMAND THE LIVES OF ITS MEN AND WOMEN IN THE
WAGING OF THAT WAR IS UNDER NO CONSTITUTIONAL NECESSITY OF PROVIDING A
SYSTEM OF PRICE CONTROL ON THE DOMESTIC FRONT WHICH WILL ASSURE EACH
LANDLORD A "FAIR RETURN" ON HIS PROPERTY. 

IV.  IT IS FINALLY SUGGESTED THAT THE ACT VIOLATES THE FIFTH
AMENDMENT BECAUSE IT MAKES NO PROVISION FOR A HEARING TO LANDLORDS
BEFORE THE ORDER OR REGULATION FIXING RENTS BECOMES EFFECTIVE. 
OBVIOUSLY, CONGRESS WOULD HAVE BEEN UNDER NO NECESSITY TO GIVE NOTICE
AND PROVIDE A HEARING BEFORE IT ACTED, HAD IT DECIDED TO FIX RENTS ON A
NATIONAL BASIS THE SAME AS IT DID FOR THE DISTRICT OF COLUMBIA.  SEE 55
STAT. 788.  WE AGREE WITH THE EMERGENCY COURT OF APPEALS (AVANT V.
BOWLES, 139 F.2D 702) THAT CONGRESS NEED NOT MAKE THAT REQUIREMENT WHEN
IT DELEGATES THE TASK TO AN ADMINISTRATIVE AGENCY.  IN BI-METALLIC
INVESTMENT CO. V. STATE BOARD, 239 U.S. 441, A SUIT WAS BROUGHT BY A
TAXPAYER AND LANDOWNER TO ENJOIN A COLORADO BOARD FROM PUTTING IN
EFFECT AN ORDER WHICH INCREASED THE VALUATION OF ALL TAXABLE PROPERTY
IN DENVER 40 PER CENT.  SUCH ACTION, IT WAS ALLEGED, VIOLATED THE
FOURTEENTH AMENDMENT AS THE PLAINTIFF WAS GIVEN NO OPPORTUNITY TO BE
HEARD.  MR. JUSTICE HOLMES, SPEAKING FOR THE COURT, STATED, P. 445:
"WHERE A RULE OF CONDUCT APPLIES TO MORE THAN A FEW PEOPLE IT IS
IMPRACTICABLE THAT EVERY ONE SHOULD HAVE A DIRECT VOICE IN ITS
ADOPTION.  THE CONSTITUTION DOES NOT REQUIRE ALL PUBLIC ACTS TO BE DONE
IN TOWN MEETING OR AN ASSEMBLY OF THE WHOLE.  GENERAL STATUTES WITHIN
THE STATE POWER ARE PASSED THAT AFFECT THE PERSON OR PROPERTY OF
INDIVIDUALS, SOMETIMES TO THE POINT OF RUIN, WITHOUT GIVING THEM A
CHANCE TO BE HEARD.  THEIR RIGHTS ARE PROTECTED IN THE ONLY WAY THAT
THEY CAN BE IN A COMPLEX SOCIETY, BY THEIR POWER, IMMEDIATE OR REMOTE,
OVER THOSE WHO MAKE THE RULE."  WE NEED NOT GO SO FAR IN THE PRESENT
CASE.  HERE CONGRESS HAS PROVIDED FOR JUDICIAL REVIEW OF THE
ADMINISTRATOR'S ACTION.  TO BE SURE, THAT REVIEW COMES AFTER THE ORDER
HAS BEEN PROMULGATED; AND NO PROVISION FOR A STAY IS MADE.  BUT AS WE
HAVE HELD IN YAKUS V. UNITED STATES, SUPRA, THAT REVIEW SATISFIES THE
REQUIREMENTS OF DUE PROCESS.  AS STATED BY MR. JUSTICE BRANDEIS FOR A
UNANIMOUS COURT IN PHILLIPS V. COMMISSIONER, 283 U.S. 589, 596-597:
"WHERE ONLY PROPERTY RIGHTS ARE INVOLVED, MERE POSTPONEMENT OF THE
JUDICIAL ENQUIRY IS NOT A DENIAL OF DUE PROCESS, IF THE OPPORTUNITY
GIVEN FOR THE ULTIMATE JUDICIAL DETERMINATION OF THE LIABILITY IS
ADEQUATE.  SPRINGER V. UNITED STATES, 102 U.S. 586, 593; SCOTTISH UNION
& NATIONAL INS. CO. V. BOWLAND, 196 U.S. 611, 631.  DELAY IN THE
JUDICIAL DETERMINATION OF PROPERTY RIGHTS IS NOT UNCOMMON WHERE IT IS
ESSENTIAL THAT GOVERNMENTAL NEEDS BE IMMEDIATELY SATISFIED." 

LANGUAGE IN THE CASES THAT DUE PROCESS REQUIRES A HEARING BEFORE THE
ADMINISTRATIVE ORDER BECOMES EFFECTIVE (MORGAN V. UNITED STATES, 304
U.S. 1, 19-20; OPP COTTON MILLS V. ADMINISTRATOR, SUPRA, PP. 152-153)
IS TO BE EXPLAINED ON TWO GROUNDS.  IN THE FIRST PLACE, THE STATUTES
THERE INVOLVED REQUIRED THAT PROCEDURE. 

SECONDLY, AS WE HAVE HELD IN YAKUS V. UNITED STATES, SUPRA, CONGRESS
WAS DEALING HERE WITH THE EXIGENCIES OF WARTIME CONDITIONS AND THE
INSISTENT DEMANDS OF INFLATION CONTROL.  CF. PORTER V. INVESTORS
SYNDICATE, 286 U.S. 461, 471.  CONGRESS CHOSE NOT TO FIX RENTS IN
SPECIFIED AREAS OR ON A NATIONAL SCALE BY LEGISLATIVE FIAT.  IT CHOSE A
METHOD DESIGNED TO MEET THE NEEDS FOR RENT CONTROL AS THEY MIGHT ARISE
AND TO ACCORD SOME LEEWAY FOR ADJUSTMENT WITHIN THE FORMULA WHICH IT
PRESCRIBED.  AT THE SAME TIME, THE PROCEDURE WHICH CONGRESS ADOPTED WAS
SELECTED WITH THE VIEW OF ELIMINATING THE NECESSITY FOR "LENGTHY AND
COSTLY TRIALS WITH CONCOMITANT DISSIPATION OF THE TIME AND ENERGIES OF
ALL CONCERNED IN LITIGATION RATHER THAN IN THE COMMON WAR EFFORT."  S.
REP. NO. 931, 77TH CONG., 2D SESS., P. 7.  TO REQUIRE HEARINGS FOR
THOUSANDS OF LANDLORDS BEFORE ANY RENT CONTROL ORDER COULD BE MADE
EFFECTIVE MIGHT HAVE DEFEATED THE PROGRAM OF PRICE CONTROL.  OR
CONGRESS MIGHT WELL HAVE THOUGHT SO.  NATIONAL SECURITY MIGHT NOT BE
ABLE TO AFFORD THE LUXURIES OF LITIGATION AND THE LONG DELAYS WHICH
PRELIMINARY HEARINGS TRADITIONALLY HAVE ENTAILED.    WE FULLY
RECOGNIZE, AS DID THE COURT IN HOME BLDG. & LOAN ASSN. V. BLAISDELL,
290 U.S. 398, 426, THAT "EVEN THE WAR POWER DOES NOT REMOVE
CONSTITUTIONAL LIMITATIONS SAFEGUARDING ESSENTIAL LIBERTIES."  AND SEE
HAMILTON V. KENTUCKY DISTILLERIES CO., SUPRA, P. 155.  BUT WHERE
CONGRESS HAS PROVIDED FOR JUDICIAL REVIEW AFTER THE REGULATIONS OR
ORDERS HAVE BEEN MADE EFFECTIVE IT HAS DONE ALL THAT DUE PROCESS UNDER
THE WAR EMERGENCY REQUIRES. 

OTHER OBJECTIONS ARE RAISED CONCERNING THE REGULATIONS OR ORDERS
FIXING THE RENTS.  BUT THESE MAY BE CONSIDERED ONLY BY THE EMERGENCY
COURT OF APPEALS ON THE REVIEW PROVIDED BY SEC. 204.  YAKUS V. UNITED
STATES, SUPRA.  REVERSED.    FN1  THE DECLARATION RECITED THAT THE
DESIGNATED AREAS WERE THE LOCATION OF THE ARMED FORCES OF THE UNITED
STATES OR OF WAR PRODUCTION INDUSTRIES, THAT THE INFLUX OF PEOPLE HAD
CAUSED AN ACUTE SHORTAGE OF RENTAL HOUSING ACCOMMODATIONS, THAT MOST OF
THE AREAS WERE THOSE IN WHICH BUILDERS COULD SECURE PRIORITY RATINGS ON
CRITICAL MATERIALS FOR RESIDENTIAL CONSTRUCTION, THAT NEW CONSTRUCTION
HAD NOT BEEN SUFFICIENT TO RESTORE NORMAL RENTAL MARKETS, THAT SURVEYS
SHOWED LOW VACANCY RATIOS FOR RENTAL HOUSING ACCOMMODATIONS IN THE
AREAS, THAT DEFENSE ACTIVITIES HAD RESULTED IN SUBSTANTIAL AND
WIDESPREAD INCREASES IN RENTS AFFECTING MOST OF THESE ACCOMMODATIONS IN
THE AREAS, AND THAT OFFICIAL SURVEYS IN THE AREAS HAD SHOWN A MARKED
UPWARD MOVEMENT IN THE GENERAL LEVEL OF RESIDENTIAL RENTS. 

FN2  SEC. 2(B) PROVIDES:  "WHENEVER IN THE JUDGMENT OF THE
ADMINISTRATOR SUCH ACTION IS NECESSARY OR PROPER IN ORDER TO EFFECTUATE
THE PURPOSES OF THIS ACT, HE SHALL ISSUE A DECLARATION SETTING FORTH
THE NECESSITY FOR, AND RECOMMENDATIONS WITH REFERENCE TO, THE
STABILIZATION OR REDUCTION OF RENTS FOR ANY DEFENSE-AREA HOUSING
ACCOMMODATIONS WITHIN A PARTICULAR DEFENSE-RENTAL AREA.  IF WITHIN
SIXTY DAYS AFTER THE ISSUANCE OF ANY SUCH RECOMMENDATIONS RENTS FOR ANY
SUCH ACCOMMODATIONS WITHIN SUCH DEFENSE-RENTAL AREA HAVE NOT IN THE
JUDGMENT OF THE ADMINISTRATOR BEEN STABILIZED OR REDUCED BY STATE OR
LOCAL REGULATION, OR OTHERWISE, IN ACCORDANCE WITH THE RECOMMENDATIONS,
THE ADMINISTRATOR MAY BY REGULATION OR ORDER ESTABLISH SUCH MAXIMUM
RENT OR MAXIMUM RENTS FOR SUCH ACCOMMODATIONS AS IN HIS JUDGMENT WILL
BE GENERALLY FAIR AND EQUITABLE AND WILL EFFECTUATE THE PURPOSES OF
THIS ACT.  SO FAR AS PRACTICABLE, IN ESTABLISHING ANY MAXIMUM RENT FOR
ANY DEFENSE-AREA HOUSING ACCOMMODATIONS, THE ADMINISTRATOR SHALL
ASCERTAIN AND GIVE DUE CONSIDERATION TO THE RENTS PREVAILING FOR SUCH
ACCOMMODATIONS, OR COMPARABLE ACCOMMODATIONS, ON OR ABOUT APRIL 1,
1941(OR IF, PRIOR OR SUBSEQUENT TO APRIL 1, 1941, DEFENSE ACTIVITIES
SHALL HAVE RESULTED OR THREATENED TO RESULT IN INCREASES IN RENTS FOR
HOUSING ACCOMMODATIONS IN SUCH AREA INCONSISTENT WITH THE PURPOSES OF
THIS ACT, THEN ON OR ABOUT A DATE (NOT EARLIER THAN APRIL 1, 1940),
WHICH IN THE JUDGMENT OF THE ADMINISTRATOR, DOES NOT REFLECT SUCH
INCREASES), AND HE SHALL MAKE ADJUSTMENTS FOR SUCH RELEVANT FACTORS AS
HE MAY DETERMINE AND DEEM TO BE OF GENERAL APPLICABILITY IN RESPECT OF
SUCH ACCOMMODATIONS, INCLUDING INCREASES OR DECREASES IN PROPERTY TAXES
AND OTHER COSTS.  IN DESIGNATING DEFENSE-RENTAL AREAS, IN PRESCRIBING
REGULATIONS AND ORDERS ESTABLISHING MAXIMUM RENTS FOR SUCH
ACCOMMODATIONS, AND IN SELECTING PERSONS TO ADMINISTER SUCH REGULATIONS
AND ORDERS, THE ADMINISTRATOR SHALL, TO SUCH EXTENT AS HE DETERMINES TO
BE PRACTICABLE, CONSIDER ANY RECOMMENDATIONS WHICH MAY BE MADE BY STATE
AND LOCAL OFFICIALS CONCERNED WITH HOUSING OR RENTAL CONDITIONS IN ANY
DEFENSE-RENTAL AREA." 

AND SEC. 2(C) PROVIDES: "ANY REGULATION OR ORDER UNDER THIS SECTION
MAY BE ESTABLISHED IN SUCH FORM AND MANNER, MAY CONTAIN SUCH
CLASSIFICATIONS AND DIFFERENTIATIONS, AND MAY PROVIDE FOR SUCH
ADJUSTMENTS AND REASONABLE EXCEPTIONS, AS IN THE JUDGMENT OF THE
ADMINISTRATOR ARE NECESSARY OR PROPER IN ORDER TO EFFECTUATE THE
PURPOSES OF THIS ACT.  ANY REGULATION OR ORDER UNDER THIS SECTION WHICH
ESTABLISHES A MAXIMUM PRICE OR MAXIMUM RENT MAY PROVIDE FOR A MAXIMUM
PRICE OR MAXIMUM RENT BELOW THE PRICE OR PRICES PREVAILING FOR THE
COMMODITY OR COMMODITIES, OR BELOW THE RENT OR RENTS PREVAILING FOR THE
DEFENSE-AREA HOUSING ACCOMMODATIONS, AT THE TIME OF THE ISSUANCE OF
SUCH REGULATION OR ORDER." 

FN3  SEE THE PROVISIONS OF SEC. 2(B) IN NOTE 2, SUPRA. 

FN4  SEC. 201(D) PROVIDES:  "THE ADMINISTRATOR MAY, FROM TIME TO
TIME, ISSUE SUCH REGULATIONS AND ORDERS AS HE MAY DEEM NECESSARY OR
PROPER IN ORDER TO CARRY OUT THE PURPOSES AND PROVISIONS OF THIS ACT." 

SEC. 203(A) PROVIDES IN PART:  "WITHIN A PERIOD OF SIXTY DAYS AFTER
THE ISSUANCE OF ANY REGULATION OR ORDER UNDER SECTION 2, OR IN THE CASE
OF A PRICE SCHEDULE, WITHIN A PERIOD OF SIXTY DAYS AFTER THE EFFECTIVE
DATE THEREOF SPECIFIED IN SECTION 206, ANY PERSON SUBJECT TO ANY
PROVISION OF SUCH REGULATION, ORDER, OR PRICE SCHEDULE MAY, IN
ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE ADMINISTRATOR, FILE
A PROTEST SPECIFICALLY SETTING FORTH OBJECTIONS TO ANY SUCH PROVISION
AND AFFIDAVITS OR OTHER WRITTEN EVIDENCE IN SUPPORT OF SUCH
OBJECTIONS.  AT ANY TIME AFTER THE EXPIRATION OF SUCH SIXTY DAYS ANY
PERSONS SUBJECT TO ANY PROVISION OF SUCH REGULATION, ORDER, OR PRICE
SCHEDULE MAY FILE SUCH A PROTEST BASED SOLELY ON GROUNDS ARISING AFTER
THE EXPIRATION OF SUCH SIXTY DAYS.  STATEMENTS IN SUPPORT OF ANY SUCH
REGULATION, ORDER, OR PRICE SCHEDULE MAY BE RECEIVED AND INCORPORATED
IN THE TRANSCRIPT OF THE PROCEEDINGS AT SUCH TIMES AND IN ACCORDANCE
WITH SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE ADMINISTRATOR." 

FN5  SEC. 204(D) PROVIDES IN PART:  "THE EMERGENCY COURT OF APPEALS,
AND THE SUPREME COURT UPON REVIEW OF JUDGMENTS AND ORDERS OF THE
EMERGENCY COURT OF APPEALS, SHALL HAVE EXCLUSIVE JURISDICTION TO
DETERMINE THE VALIDITY OF ANY REGULATION OR ORDER ISSUED UNDER SECTION
2, OF ANY PRICE SCHEDULE EFFECTIVE IN ACCORDANCE WITH THE PROVISIONS OF
PRICE SCHEDULE.  EXCEPT AS PROVIDED IN THIS SECTION, NO COURT, FEDERAL,
STATE, OR TERRITORIAL, SHALL HAVE JURISDICTION OR POWER TO CONSIDER THE
VALIDITY OF ANY SUCH REGULATION, ORDER, OR PRICE SCHEDULE, OR TO STAY,
RESTRAIN, ENJOIN, OR SET ASIDE, IN WHOLE OR IN PART, ANY PROVISION OF
THIS ACT AUTHORIZING THE ISSUANCE OF SUCH REGULATIONS OR ORDERS, OR
MAKING EFFECTIVE ANY SUCH PRICE SCHEDULE, OR ANY PROVISION OF ANY SUCH
REGULATION, ORDER, OR PRICE SCHEDULE, OR TO RESTRAIN OR ENJOIN THE
ENFORCEMENT OF ANY SUCH PROVISION." 

IT SHOULD ALSO BE NOTED THAT SEC. 204(C) WITHHOLDS FROM THE EMERGENCY
COURT POWER "TO ISSUE ANY TEMPORARY RESTRAINING ORDER OR INTERLOCUTORY
DECREE STAYING OR RESTRAINING, IN WHOLE OR IN PART, THE EFFECTIVENESS
OF ANY REGULATION OR ORDER ISSUED UNDER SECTION 2 OR ANY PRICE SCHEDULE
EFFECTIVE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 206." 

FN6  IT IS TRUE THAT SEC. 205(C) GIVES TO STATE AND TERRITORIAL
COURTS CONCURRENT JURISDICTION OF ALL PROCEEDINGS (EXCEPT CRIMINAL
PROCEEDINGS) UNDER SEC. 205 OF THE ACT.  BUT THEY EMBRACE ONLY
ENFORCEMENT SUITS BROUGHT BY THE ADMINISTRATOR, NOT SUITS BROUGHT TO
RESTRAIN OR ENJOIN ENFORCEMENT OF THE ACT OR ORDERS OR REGULATIONS
THEREUNDER. 

FN7  HERE AS IN YAKUS V. UNITED STATES, SUPRA, THE ADMINISTRATOR
CONCEDES THAT IN AN ENFORCEMENT SUIT THE CONSTITUTIONALITY OF THE ACT
AS DISTINGUISHED FROM THE CONSTITUTIONALITY OF ORDERS OR REGULATIONS
UNDER THE ACT IS OPEN.  AS POINTED OUT IN THE YAKUS CASE, RELIANCE IS
PLACED ON SEC. 204(D), SUPRA NOTE 5.  AND SEE S. REP. NO. 931, 77TH
CONG., 2D SESS., PP. 24-25. 

FN8  THE TERMS RENT, DEFENSE-RENTAL AREA, DEFENSE-AREA HOUSING
ACCOMMODATIONS, AND HOUSING ACCOMMODATIONS ARE DEFINED IN SEC. 302 OF
THE ACT. 

FN9  SEC. 1(A) PROVIDES IN PART:  "IT IS HEREBY DECLARED TO BE IN THE
INTEREST OF THE NATIONAL DEFENSE AND SECURITY AND NECESSARY TO THE
EFFECTIVE PROSECUTION OF THE PRESENT WAR, AND THE PURPOSES OF THIS ACT
ARE, TO STABILIZE PRICES AND TO PREVENT SPECULATIVE, UNWARRANTED, AND
ABNORMAL INCREASES IN PRICES AND RENTS; TO ELIMINATE AND PREVENT
PROFITEERING, HOARDING, MANIPULATION, SPECULATION, AND OTHER DISRUPTIVE
PRACTICES RESULTING FROM ABNORMAL MARKET CONDITIONS OR SCARCITIES
CAUSED BY OR CONTRIBUTING TO THE NATIONAL EMERGENCY; TO ASSURE THAT
DEFENSE APPROPRIATIONS ARE NOT DISSIPATED BY EXCESSIVE PRICES; TO
PROTECT PERSONS WITH RELATIVELY FIXED AND LIMITED INCOMES, CONSUMERS,
WAGE EARNERS, INVESTORS, AND PERSONS DEPENDENT ON LIFE INSURANCE,
ANNUITIES, AND PENSIONS, FROM UNDUE IMPAIRMENT OF THEIR STANDARD OF
LIVING; TO PREVENT HARDSHIPS TO PERSONS ENGAGED IN BUSINESS, TO
SCHOOLS, UNIVERSITIES, AND OTHER INSTITUTIONS, AND TO THE FEDERAL,
STATE, AND LOCAL GOVERNMENTS, WHICH WOULD RESULT FROM ABNORMAL
INCREASES IN PRICES; TO ASSIST IN SECURING ADEQUATE PRODUCTION OF
COMMODITIES AND FACILITIES; TO PREVENT A POST EMERGENCY COLLAPSE OF
VALUES; TO STABILIZE AGRICULTURAL PRICES IN THE MANNER PROVIDED IN
AND PRODUCERS, PROCESSORS, AND OTHERS TO ACCOMPLISH THE AFORESAID
PURPOSES." 

MR. JUSTICE RUTLEDGE, CONCURRING: 

I CONCUR IN THE RESULT AND SUBSTANTIALLY IN THE COURT'S OPINION,
EXCEPT FOR QUALIFICATIONS EXPRESSED BELOW.  IN VIEW OF THESE AND MY
DIFFERENCE FROM THE COURT'S POSITION IN YAKUS V. UNITED STATES, ANTE,
P. 414, A STATEMENT OF REASONS FOR CONCURRENCE HERE IS APPROPRIATE. 

                                  I. 

WITH REFERENCE TO THE SUBSTANTIVE ASPECTS OF THE LEGISLATION, I WOULD
ADD HERE ONLY THE FOLLOWING.  SINCE THE PHASES IN ISSUE IN THIS CASE
RELATE TO REAL ESTATE RENTALS, IT IS NOT AMISS TO NOTE THAT THESE
ORDINARILY ARE WITHIN THE STATE'S POWER TO REGULATE RATHER THAN THAT OF
THE FEDERAL GOVERNMENT.  BUT THEIR RELATION, BOTH TO THE GENERAL SYSTEM
OF CONTROLLING WARTIME PRICE INFLATION AND TO THE SPECIAL PROBLEMS OF
HOUSING CREATED IN PARTICULAR AREAS BY WAR ACTIVITIES, GIVES ADEQUATE
GROUND FOR EXERCISE OF FEDERAL POWER OVER THEM. 

LIKEWISE, WITH RESPECT TO THE DELEGATION OF AUTHORITY TO THE
ADMINISTRATOR TO DESIGNATE "DEFENSE RENTAL AREAS" AND TO FIX MAXIMUM
RENTALS WITHIN THEM, THE SAME CONSIDERATIONS, AND OTHERS, SUSTAIN THE
DELEGATION AS DO THAT TO FIX PRICES OF COMMODITIES GENERALLY.  THE
POWER TO SPECIFY DEFENSE RENTAL AREAS, RATHER THAN AMOUNTING TO AN
EXCESS OF PERMISSIBLE DELEGATION, IS ACTUALLY A LIMITATION UPON THE
ADMINISTRATOR'S AUTHORITY, RESTRICTING IT TO REGIONS WHERE THE FACTS,
NOT MERELY HIS JUDGMENT, MAKE CONTROL OF RENTS NECESSARY BOTH TO KEEP
DOWN INFLATION AND TO CARRY ON THE WAR ACTIVITIES CONCENTRATED IN
THEM.  ACCORDINGLY, I CONCUR FULLY WITH THE COURT'S EXPRESSED VIEWS
CONCERNING THE SUBSTANTIVE FEATURES OF THE LEGISLATION. 

                                 II. 

THIS APPEAL PRESENTS TWO KINDS OF JURISDICTIONAL AND PROCEDURAL
QUESTIONS, THOUGH THEY ARE NOT UNRELATED.  THE FIRST SORT RELATE TO THE
POWER OF THE DISTRICT COURT TO RESTRAIN THE FURTHER PROSECUTION OF THE
STATE COURT PROCEEDINGS AND THE EXECUTION OF, OR ATTEMPTS TO EXECUTE,
ORDERS ISSUED IN THEM.  THE OTHER ISSUES RELATE TO THE DISTRICT COURT'S
POWER TO RESTRAIN MRS. WILLINGHAM FROM VIOLATING THE EMERGENCY PRICE
CONTROL ACT AND THE ORDERS ISSUED PURSUANT TO IT AFFECTING HER
INTERESTS. 

AS TO THE FORMER, I HAVE NO DOUBT THAT THE DISTRICT COURT HAD POWER,
FOR THE REASONS STATED BY THE COURT, TO RESTRAIN THE PROSECUTION OF THE
SUIT IN THE STATE COURT AND THE EXECUTION OF ORDERS MADE BY IT.  BY
SEC. 204(D) OF THE ACT, CONGRESS WITHHELD FROM ALL COURTS, INCLUDING
THE STATE COURTS, WITH AN EXCEPTION IN THE CASE OF THE EMERGENCY COURT
OF APPEALS AND THIS COURT ON REVIEW OF ITS JUDGMENTS, "JURISDICTION
...  TO STAY, RESTRAIN, ENJOIN, OR SET ASIDE, IN WHOLE OR IN PART, ANY
PROVISION OF THIS ACT AUTHORIZING THE ISSUANCE OF SUCH REGULATIONS OR
ORDERS, OR MAKING EFFECTIVE ANY SUCH PRICE SCHEDULE, OR ANY PROVISION
OF ANY SUCH REGULATION, ORDER, OR PRICE SCHEDULE, OR TO RESTRAIN OR
ENJOIN THE ENFORCEMENT OF ANY SUCH PROVISION."  THE SINGLE EXCEPTION
WAS THE POWER OF THE EMERGENCY COURT BY ITS FINAL JUDGMENT, OR OF THIS
COURT ON FINAL DISPOSITION IN REVIEW THEREOF, SEC. 204(A), (B), TO SET
ASIDE AN ORDER OR REGULATION.  CONGRESS CLEARLY HAD THE POWER THUS TO
CONFINE THE EQUITY JURISDICTION OF THE FEDERAL COURTS AND TO MAKE ITS
MANDATE FOR UNINTERRUPTED OPERATION OF THE RENT CONTROL SYSTEM
EFFECTIVE BY PROHIBITING THE STATE COURTS SO TO INTERFERE WITH THE
STATUTORY PLAN, AT LEAST UNTIL IT SHOULD BE SHOWN INVALID BY THE
CHANNEL CREATED FOR THIS PURPOSE.  FN1  ANY EFFORT OF THE STATE COURT
THEREFORE TO ENJOIN THE ISSUANCE OF RENT ORDERS OR SUSPEND THEIR
OPERATION, WHETHER ON CONSTITUTIONAL OR OTHER GROUNDS, WAS DIRECTLY IN
THE TEETH OF THE STATUTE'S EXPLICIT PROVISIONS AND A VIOLATION OF ITS
TERMS.  BY THIS MANDATE THE STATE COURTS WERE NOT REQUIRED TO GIVE
THEIR SANCTION TO ENFORCEMENT OF AN UNCONSTITUTIONAL ACT OR REGULATION
OR EVEN OF ONE WHICH MIGHT TURN OUT TO BE SUCH.  THEY WERE MERELY
COMMANDED TO KEEP HANDS OFF AND LEAVE DECISION UPON THE VALIDITY OF THE
STATUTE OR THE REGULATIONS, FOR PURPOSES OF SUSPENDING OR SETTING THEM
ASIDE, TO ANOTHER FORUM ESTABLISHED FOR THAT PURPOSE.  CONGRESS CLEARLY
HAD THE POWER AND THE INTENT TO AUTHORIZE FEDERAL COURTS TO ENFORCE
THIS COMMAND, BY INJUNCTION IF NECESSARY. 

                                 III. 

IN VESTING JURISDICTION IN THE FEDERAL DISTRICT COURTS TO ENJOIN
VIOLATIONS OF THE PRICE CONTROL ACT AND REGULATIONS ISSUED PURSUANT TO
IT, CONGRESS INCLUDED NOT ONLY VIOLATIONS OF THE STATUTE'S PROHIBITION
DIRECTED TO THE STATE COURTS AGAINST STAYING ENFORCEMENT BUT OTHER
VIOLATIONS AS WELL.  THE DISTRICT COURT, ACTING IN THE EXERCISE OF THAT
JURISDICTION, RESTED ITS JUDGMENT ON THE DECISION OF A QUESTION IT WAS
AUTHORIZED TO CONSIDER, NAMELY, WHETHER THE ACT, RATHER THAN MERELY A
REGULATION ISSUED UNDER IT, IS INVALID.  SINCE THE COURT DECIDED THAT
QUESTION ERRONEOUSLY IN DISPOSING OF THIS CASE, REVERSAL OF ITS
JUDGMENT WOULD BE REQUIRED.  AND PERHAPS IN STRICTNESS THIS IS ALL THAT
IT WOULD BE NECESSARY TO DECIDE AT THIS TIME.    BUT THE CONTENTION HAS
BEEN MADE EARNESTLY ALL THROUGH THESE PROCEEDINGS THAT THE REGULATIONS,
ON THE BASIS OF WHICH ANY INJUNCTION OBTAINED BY THE ADMINISTRATOR MUST
REST, ARE INVALID AND BEYOND HIS AUTHORITY UNDER THE ACT.  AND THE
COURT, RELYING UPON THE DECISION IN THE YAKUS CASE, HAS INDICATED THAT
THESE CONTENTIONS MAY NOT BE CONSIDERED IN A PROCEEDING OF THIS
CHARACTER.    FROM WHAT ALREADY HAS BEEN SAID, IT IS CLEAR THE
CONTENTION MISCONCEIVES THE ADMINISTRATOR'S RIGHTS WITH RESPECT TO AN
INJUNCTION RESTRAINING THE FURTHER PROSECUTION OF THE STATE SUIT AND
EXECUTION OF THE STATE COURT'S ORDERS.  HIS RIGHT TO SUCH AN INJUNCTION
MAY REST ON CONSIDERATIONS ENTIRELY DIFFERENT FROM THOSE GOVERNING HIS
RIGHT TO SECURE AN INJUNCTION RESTRAINING MRS. WILLINGHAM FROM
VIOLATING THE REGULATION.  THE FORMER COULD BE FOUNDED WHOLLY UPON THE
POWER OF CONGRESS TO REQUIRE THE STATE COURTS TO KEEP HANDS ENTIRELY
OFF, IN THE DISCHARGE OF FEDERAL FUNCTIONS BY FEDERAL OFFICIALS, AT ANY
RATE DURING SUCH TIME AS MIGHT BE REQUIRED FOR DECISION, WITH FINALITY,
UPON THE VALIDITY OF THE STATUTE AND REGULATIONS ISSUED UNDER IT BY AN
APPROPRIATE ALTERNATIVE FEDERAL METHOD.  THE LATTER, HOWEVER, PRESENTS
THE DIFFERENT QUESTION WHETHER CONGRESS CAN REQUIRE THE FEDERAL
DISTRICT COURTS, ORGANIZED UNDER ARTICLE III AND VESTED BY IT WITH THE
JUDICIAL POWER, NOT MERELY TO KEEP HANDS OFF, BUT BY AFFIRMATIVE
EXERCISE OF THEIR POWERS TO GIVE PERMANENT SANCTION TO THE LEGISLATIVE
OR ADMINISTRATIVE COMMAND, NOTWITHSTANDING IT IS OR MAY BE IN CONFLICT
WITH SOME CONSTITUTIONAL MANDATE. 

THAT CONGRESS CAN REQUIRE THE COURT EXERCISING THE CIVIL JURISDICTION
IN EQUITY TO REFRAIN FROM STAYING STATUTORY PROVISIONS AND REGULATIONS
IS CLEAR.  WHETHER THE ENFORCING COURT ACTS CIVILLY OR CRIMINALLY, IN
CIRCUMSTANCES LIKE THESE, CONGRESS CAN CUT OFF ITS POWER TO STAY OR
SUSPEND THE OPERATION OF THE STATUTE OR THE REGULATION PENDING FINAL
DECISION THAT IT IS INVALID.  BUT THIS LEAVES THE QUESTION WHETHER
CONGRESS ALSO CAN CONFER THE EQUITY JURISDICTION TO DECREE ENFORCEMENT
AND AT THE SAME TIME DEPRIVE THE COURT OF POWER TO CONSIDER THE
VALIDITY OF THE LAW OR REGULATION AND TO GOVERN ITS DECREE
ACCORDINGLY. 

DIFFERENT CONSIDERATIONS, IN PART, DETERMINE THIS QUESTION FROM THOSE
CONTROLLING WHEN ENFORCEMENT IS BY CRIMINAL SANCTION.  THE
CONSTITUTIONAL LIMITATIONS SPECIALLY APPLICABLE TO CRIMINAL TRIALS FALL
TO ONE SIDE.  THOSE RELATING TO DUE PROCESS OF LAW IN CIVIL
PROCEEDINGS, INCLUDING WHATEVER MATTERS AFFECTING DISCRIMINATION ARE
APPLICABLE UNDER THE FIFTH AMENDMENT, AND TO THE INDEPENDENCE OF THE
JUDICIAL POWER UNDER ARTICLE III, IN RELATION TO CIVIL PROCEEDINGS,
REMAIN APPLICABLE.  SINCE IN THESE CASES THE RIGHTS INVOLVED ARE RIGHTS
OF PROPERTY, NOT OF PERSONAL LIBERTY OR LIFE AS IN CRIMINAL
PROCEEDINGS, THE CONSEQUENCES, THOUGH SERIOUS, ARE NOT OF THE SAME
MOMENT UNDER OUR SYSTEM, AS APPEARS FROM THE FACT THEY ARE NOT SECURED
BY THE SAME PROCEDURAL PROTECTIONS IN TRIAL.  IT IS IN THIS RESPECT
PERHAPS THAT OUR BASIC LAW, FOLLOWING THE COMMON LAW, MOST CLEARLY
PLACES THE RIGHTS TO LIFE AND TO LIBERTY ABOVE THOSE OF PROPERTY. 

ALL THIS IS PERTINENT TO WHETHER CONGRESS, IN PROVIDING FOR CIVIL
ENFORCEMENT OF THE ACT AND THE REGULATIONS, CAN DO WHAT IN MY OPINION
IT CANNOT REQUIRE BY WAY OF CRIMINAL ENFORCEMENT OF THIS STATUTE,
NAMELY, BY PROVIDING THE SINGLE OPPORTUNITY TO CHALLENGE THE VALIDITY
OF THE REGULATION AND MAKING THIS AVAILABLE FOR THE LIMITED TIME,
CONSTITUTE THE METHOD AFFORDED THE EXCLUSIVE MODE FOR SECURING DECISION
OF THAT QUESTION AND, EITHER BY VIRTUE OF THE TAKING ADVANTAGE OF IT OR
BY VIRTUE OF THE FAILURE TO DO SO WITHIN THE TIME ALLOWED, FORECLOSE
FURTHER OPPORTUNITY FOR CONSIDERING IT. 

IN MY OPINION CONGRESS CAN DO THIS, SUBJECT HOWEVER TO THE FOLLOWING
LIMITATIONS OR RESERVATIONS, WHICH I THINK SHOULD BE STATED EXPLICITLY:
(1) THE ORDER OR REGULATION MUST NOT BE INVALID ON ITS FACE; (2) THE
PREVIOUS OPPORTUNITY MUST BE ADEQUATE FOR THE PURPOSE PRESCRIBED, IN
THE CONSTITUTIONAL SENSE; AND (3), WHAT IS A COROLLARY OF THE SECOND
LIMITATION OR IMPLICIT IN IT, THE CIRCUMSTANCES AND NATURE OF THE
SUBSTANTIVE PROBLEM DEALT WITH BY THE LEGISLATION MUST BE SUCH THAT
THEY JUSTIFY BOTH THE CREATION OF THE SPECIAL REMEDY AND THE
REQUIREMENT THAT IT BE FOLLOWED TO THE EXCLUSION OF OTHERS NORMALLY
AVAILABLE. 

IN THIS CASE, IN MY JUDGMENT, THESE CONDITIONS CONCUR TO JUSTIFY THE
PROCEDURE CONGRESS HAS SPECIFIED.  EXCEPT FOR THE CHARGE THAT THE
REGULATIONS, OR SOME OF THEM, ARE SO VAGUE AND INDEFINITE AS TO BE
INCAPABLE OF ENFORCEMENT, THERE IS NOTHING TO SUGGEST THEY ARE INVALID
ON THEIR FACE.  AND THEY CLEARLY ARE NOT SO, EITHER IN THE RESPECT
SPECIFIED OR OTHERWISE.  FN2  THE PROCEEDING BY PROTEST AND APPEAL
THROUGH THE EMERGENCY COURT, EVEN FOR CIVIL CONSEQUENCES ONLY,
APPROACHES THE LIMIT OF ADEQUACY IN THE CONSTITUTIONAL SENSE, BOTH BY
REASON OF ITS SUMMARY CHARACTER  FN3  AND BECAUSE OF THE SHORTNESS OF
THE PERIOD ALLOWED FOR FOLLOWING IT.  FN4  A RESERVATION PERHAPS IS IN
ORDER IN THE LATTER RESPECT, WHEN FACTS ARE DISCOVERED AFTER THE PERIOD
WHICH, IF PROVEN, WOULD INVALIDATE THE REGULATION AND WHICH BY
REASONABLE DILIGENCE COULD NOT HAVE BEEN DISCOVERED BEFORE THE PERIOD
ENDS.  FINALLY, IT HARDLY CAN BE DISPUTED THAT THE SUBSTANTIVE PROBLEM
AND THE CIRCUMSTANCES WHICH CREATED AND SURROUNDED IT WERE SUCH AS, IF
EVER THEY COULD BE, TO JUSTIFY A PROCEDURE OF THIS SORT.  FN5 

ACCORDINGLY, I AGREE THAT, AS AGAINST THE CHALLENGES MADE HERE, THE
SPECIAL REMEDY PROVIDED BY THE ACT WAS ADEQUATE AND APPROPRIATE, IN THE
CONSTITUTIONAL SENSE, FOR THE DETERMINATION OF APPELLEE'S RIGHTS WITH
CIVIL EFFECTS, HAD SHE FOLLOWED IT.  AND HER FAILURE TO FOLLOW IT
PRODUCED NO SUCH IRREVOCABLE AND HARMFUL CONSEQUENCES, FOR SUCH
PURPOSES, AS WOULD ENSUE IF SHE WERE CHARGED WITH VIOLATION AS A
CRIME.  ACCORDINGLY, BY DECLINING TO TAKE THE PLAIN WAY OPENED TO HER,
MORE INCONVENIENT THOUGH THAT MAY HAVE BEEN, AND TAKING HER
MISCONCEIVED REMEDY BY ANOTHER ROUTE, SHE HAS ARRIVED WHERE SHE MIGHT
WELL HAVE EXPECTED, AT THE WRONG END. 

NO DOUBT THIS WAS DUE TO A MISCONCEPTION OF HER RIGHTS, BOTH AS A
MATTER OF SUBSTANCE AND AS ONE OF PROCEDURE, DUE PERHAPS TO FAILURE TO
TAKE FULL ACCOUNT OF THE REACH OF THE NATION'S POWER IN WAR. 
NEVERTHELESS, THE COURT NOT IMPROPERLY HAS SET AT REST SOME OF HER
MISCONCEPTIONS CONCERNING THE EFFECTS OF THE REGULATIONS.  THUS, IT IS
HELD THAT THE STATUTE IS NOT INVALID IN PROVIDING FOR MAXIMUM RENTS
WHICH ARE "GENERALLY FAIR AND EQUITABLE."  SEC. 2(B).  IT DOES NOT
LESSEN THE EFFECT OF THIS RULING FOR PURPOSES OF DECIDING THE
REGULATION'S VALIDITY, THAT MAXIMUM RENT REGULATION NUMBER 26, SEC.
5(C)(1), OF WHICH APPELLEE COMPLAINED ON VARIOUS CONSTITUTIONAL
GROUNDS, INCLUDING CONFISCATION, PROVIDED THAT THE ADMINISTRATOR MIGHT
ORDER A DECREASE OF THE MAXIMUM RENT FOR SPECIFIED HOUSING
ACCOMMODATIONS ONLY ON THE GROUND THAT THAT RENT "IS HIGHER THAN THE
RENT GENERALLY PREVAILING IN THE DEFENSE RENTAL AREA FOR COMPARABLE
HOUSING ACCOMMODATIONS ON APRIL 1, 1941." 

OTHER ISSUES RAISED BY THE APPELLEE WITH RESPECT TO THE REGULATIONS
LIKEWISE ARE DISPOSED OF BY THE RULINGS UPON THE STATUTE'S PROVISIONS. 
FN6  IN SO FAR AS THE REGULATIONS ARE IDENTICAL WITH THE STATUTE,
THEREFORE, AND THE OBJECTIONS TO THEM ARE IDENTICAL, THE DISPOSITION OF
THESE OBJECTIONS TO THE ACT DISPOSES ALSO OF THOSE MADE TO THE
REGULATIONS.  IN SO FAR AS THE LATTER RAISED QUESTIONS NOT RAISED
CONCERNING THE STATUTE, AND SINCE NONE OF THESE, EXCEPT AS MENTIONED
ABOVE, CALLED ATTENTION TO ANY FEATURE MAKING A REGULATION VOID ON ITS
FACE, THE APPELLEE HAS FORECLOSED HER OPPORTUNITY TO ASSERT THEM, AS TO
FACTS EXISTING WHEN THE SUIT WAS BEGUN, BY HER FAILURE TO FOLLOW THE
PRESCRIBED SPECIAL REMEDY.  IT IS NOT UNREASONABLE, IN A MATTER OF THIS
IMPORTANCE AND URGENCY, TO REQUIRE ONE, WHOSE ONLY VALID OBJECTION TO
THE LAW, INCLUDING THE REGULATIONS, RESTS IN PROOF OF FACTS NOT
APPARENT TO THE ADMINISTRATOR OR THE COURT, TO MAKE HIS PROOF IN THE
MANNER PROVIDED AND TO DO SO PROMPTLY, AS A CONDITION TO SECURING
EQUITABLE OR OTHER CIVIL RELIEF. 

FN1  THE MOSES TAYLOR, 4 WALL.  411; CF. CLAFLIN V. HOUSEMAN, 93 U.S.
130, PLAQUEMINES TROPICAL FRUIT CO. V. HENDERSON, 170 U.S. 511. 

FN2  THE MAXIMUM RENTALS ESTABLISHED IN THE REGULATION ARE DEFINITE
AND EASILY ENOUGH ASCERTAINABLE.  APPELLEE'S COMPLAINT AGAINST THE
REGULATION ON THE SCORE OF VAGUENESS IS ADDRESSED TO THE INDEFINITENESS
OF THE STANDARDS WHICH THE ADMINISTRATOR HAS PRESCRIBED AS A GUIDE FOR
HIS OFFICE IN MAKING DECREASES IN MAXIMUM RENTALS, MORE PARTICULARLY TO
SEC. 5(C)(1), WHICH AUTHORIZES A DECREASE IN THE MAXIMUM IF IT IS
"HIGHER THAN THE RENT GENERALLY PREVAILING IN THE DEFENSE-RENTAL AREA
FOR COMPARABLE HOUSING ACCOMMODATIONS ON APRIL 1, 1941."  BUT ASSUMING
THIS COMPLAINT IS OTHERWISE MERITORIOUS, THE STANDARDS THUS PROVIDED
ARE NO LESS DEFINITE THAN THOSE CONTAINED IN THE ACT ITSELF AND THE
CONTENTION IS THEREFORE DISPOSED OF BY THE DETERMINATION OF THE
CONSTITUTIONALITY OF THE ACT. 

FN3  CF. THE WRITER'S DISSENTING OPINION IN YAKUS V. UNITED STATES,
ANTE, P. 460. 

FN4  UNDER THE ACT A PROTEST AGAINST A REGULATION MUST BE MADE WITHIN
SIXTY DAYS OF ITS ISSUANCE, BUT IF BASED ON GROUNDS ARISING AFTER THE
SIXTY DAYS, IT MAY BE FILED "AT ANY TIME" THEREAFTER. 

BUT UNDER THE ADMINISTRATOR'S REVISED PROCEDURAL REGULATION NO. 3,
SEC. 1300.216, "A PROTEST AGAINST A PROVISION OF A MAXIMUM RENT
REGULATION BASED SOLELY ON GROUNDS ARISING AFTER THE DATE OF ISSUANCE
OF SUCH MAXIMUM RENT REGULATION SHALL BE FILED WITHIN A PERIOD OF SIXTY
DAYS AFTER THE PROTESTANT HAS HAD, OR COULD REASONABLY HAVE HAD, NOTICE
OF THE EXISTENCE OF SUCH GROUNDS." 

FN5 CF. THE WRITER'S DISSENTING OPINION IN YAKUS V. UNITED STATES,
ANTE, P. 460. 

FN6  E. G. THE CONTENTION THAT THE REGULATION, LIKE THE ACT,
IMPROPERLY DELEGATES TO THE ADMINISTRATOR AND HIS AGENTS "LEGISLATIVE"
POWER. 

MR. JUSTICE ROBERTS: 

I SHOULD BE CONTENT IF REVERSAL OF THE DISTRICT COURT'S DECISION WERE
UPON THE GROUND THAT THAT COURT LACKED POWER TO ENJOIN PROSECUTION OF
THE APPELLEES' STATE COURT SUIT.  THE POLICY EXPRESSED IN SEC. 265 OF
THE JUDICIAL CODE APPLIES IN THIS INSTANCE.  MOREOVER, IF THE PROVISION
OF SEC. 204(D) OF THE EMERGENCY PRICE CONTROL ACT IS VALID, THE LACK OF
JURISDICTION OF THE STATE COURT COULD, AND SHOULD, HAVE BEEN RAISED IN
THAT COURT AND REVIEW OF ITS RULING COULD HAVE BEEN OBTAINED BY
ESTABLISHED MEANS OF RESORT TO THIS COURT.  SINCE, HOWEVER, THE COURT
HAS DETERMINED THAT THE DISTRICT COURT ACTED WITHIN ITS COMPETENCY IN
ENJOINING FURTHER PROSECUTION OF THE STATE COURT SUIT, OTHER ISSUES
MUST BE FACED. 

THE APPELLANT IN HIS COMPLAINT CHARGED THAT THE APPELLEES THREATENED
TO DISOBEY THE PROVISIONS OF THE ACT AND THE REGULATIONS MADE PURSUANT
TO IT.  THE APPELLEES ANSWERED THAT THE ACT AND THE REGULATIONS WERE
VOID BECAUSE IN EXCESS OF THE POWERS OF CONGRESS.  I DO NOT UNDERSTAND
THE ADMINISTRATOR TO CONTEND THAT THE COURT BELOW WAS PRECLUDED BY THE
TERMS OF THE STATUTE FROM PASSING UPON THE QUESTION WHETHER THE ACT
CONSTITUTES AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER.  I AM
NOT SURE WHETHER HE ASSERTS THAT THE PROVISIONS OF SEC. 204(D), WHICH
PURPORT TO PROHIBIT ANY COURT, EXCEPT THE EMERGENCY COURT OF APPEALS
CREATED BY THE ACT, FROM CONSIDERING THE VALIDITY OF ANY REGULATION OR
ORDER MADE UNDER THE ACT, PREVENT CONSIDERATION OF THE ADMINISTRATOR'S
RENT REGULATIONS AND ORDERS HERE UNDER ATTACK.  IF SO, I THINK THE
CONTENTION IS UNTENABLE. 

THE STATUTE OF ITS OWN FORCE IS NOT APPLICABLE IN ANY AREA EXCEPT THE
DISTRICT OF COLUMBIA UNLESS AND UNTIL SO MADE BY A REGULATION OF THE
ADMINISTRATOR.  THE STATUTORY PROVISIONS RESPECTING RENTALS AMOUNT ONLY
TO CONFERENCE OF AUTHORITY ON THE ADMINISTRATOR TO MAKE REGULATIONS AND
DO NOT THEMSELVES PRESCRIBE OR CONSTRAIN ANY CONDUCT ON THE PART OF THE
CITIZEN.  IN SHORT, ONE CANNOT VIOLATE THE PROVISIONS OF THE STATUTE
UNLESS THEY ARE IMPLEMENTED BY ADMINISTRATIVE REGULATIONS OR ORDERS. 
TO SAY THEN THAT, WHILE THE COURT IN WHICH THE ADMINISTRATOR SEEKS
ENFORCEMENT OF THE ACT, AND REGULATIONS MADE UNDER IT, HAS JURISDICTION
TO PASS UPON THE CONSTITUTIONALITY OF THE ACT, IT MAY NOT CONSIDER THE
VALIDITY OF PERTINENT REGULATIONS, IS TO SAY THAT THE COURT IS TO
CONSIDER THE ACT IN VACUO AND WHOLLY APART FROM ITS APPLICATION TO THE
DEFENDANT AGAINST WHOM ENFORCEMENT IS SOUGHT.  UNDER THE UNINTERRUPTED
CURRENT OF AUTHORITY THE ARGUMENT MUST BE REJECTED. 

THIS BRINGS ME TO A CONSIDERATION OF THE APPELLEES' PRINCIPAL
CONTENTION, NAMELY, THAT, AS APPLIED TO RENT CONTROL, THE EMERGENCY
PRICE CONTROL ACT IS AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE
POWER TO AN ADMINISTRATIVE OFFICER.  IN APPROACHING THIS QUESTION IT IS
HARDLY NECESSARY TO STATE THE CONTROLLING PRINCIPLES WHICH HAVE BEEN
REITERATED IN RECENT DECISIONS.  FN1 CONGRESS MAY PERFORM ITS
LEGISLATIVE FUNCTION BY LAYING DOWN POLICIES AND ESTABLISHING STANDARDS
WHILE LEAVING ADMINISTRATIVE OFFICIALS FREE TO MAKE RULES WITHIN THE
PRESCRIBED LIMITS AND TO ASCERTAIN FACTS TO WHICH THE DECLARED POLICY
IS TO APPLY.  BUT ANY DELEGATION WHICH GOES BEYOND THE APPLICATION AND
EXECUTION OF THE LAW AS DECLARED BY CONGRESS IS INVALID. 

CONGRESS CANNOT DELEGATE THE POWER TO MAKE A LAW OR REFRAIN FROM
MAKING IT; TO DETERMINE TO WHOM THE LAW SHALL BE APPLICABLE AND TO WHOM
NOT; TO DETERMINE WHAT THE LAW SHALL COMMAND AND WHAT NOT.  CANDID
APPRAISAL OF THE RENT CONTROL PROVISIONS OF THE ACT IN QUESTION
DISCLOSES THAT CONGRESS HAS DELEGATED THE LAW-MAKING POWER IN TOTO TO
AN ADMINISTRATIVE OFFICER.    AS ALREADY STATED, THE ACT IS NOT IN
ITSELF EFFECTIVE WITH RESPECT TO RENTS.  IT CREATES AN OFFICE OF PRICE
ADMINISTRATION TO BE UNDER THE DIRECTION OF A PRICE ADMINISTRATOR
APPOINTED BY THE PRESIDENT (50 U.S.C. SEC. 921(A)).  THIS OFFICIAL IS
AUTHORIZED, "WHENEVER IN (HIS) JUDGMENT  ... SUCH ACTION IS NECESSARY
OR PROPER IN ORDER TO EFFECTUATE THE PURPOSES" OF THE ACT, TO ISSUE A
DECLARATION SETTING FORTH THE NECESSITY FOR, AND RECOMMENDATIONS WITH
REFERENCE TO, THE STABILIZATION OR REDUCTION OF RENTS FOR
ACCOMMODATIONS WITHIN A PARTICULAR DEFENSE-RENTAL AREA.  IF WITHIN
SIXTY DAYS SUCH RENTS WITHIN SUCH AREA HAVE NOT "IN THE JUDGMENT OF THE
ADMINISTRATOR" BEEN STABILIZED OR REDUCED IN ACCORDANCE WITH HIS
RECOMMENDATIONS, HE MAY, BY REGULATION OR ORDER, ESTABLISH SUCH MAXIMUM
RENT OR MAXIMUM RENTS FOR SUCH ACCOMMODATIONS "AS IN HIS JUDGMENT WILL
BE GENERALLY FAIR AND EQUITABLE AND WILL EFFECTUATE THE PURPOSES" OF
THE ACT.  "SO FAR AS PRACTICABLE" IN ESTABLISHING MAXIMUM RENTS HE IS
TO ASCERTAIN AND DULY CONSIDER THE RENTS PREVAILING FOR SUCH
ACCOMMODATIONS, OR COMPARABLE ACCOMMODATIONS, ON OR ABOUT APRIL 1,
1941(OR IF, PRIOR OR SUBSEQUENT TO APRIL 1, 1941, DEFENSE ACTIVITIES
SHALL HAVE RESULTED, OR THREATEN TO RESULT, IN INCREASES IN RENTS OF
HOUSING ACCOMMODATIONS IN SUCH AREA INCONSISTENT WITH THE PURPOSES OF
THE ACT, THEN ON OR ABOUT A DATE (NOT EARLIER THAN APRIL 1, 1940)
WHICH, "IN THE JUDGMENT OF THE ADMINISTRATOR" DOES NOT REFLECT SUCH
INCREASES); AND HE SHALL MAKE ADJUSTMENTS "FOR SUCH RELEVANT FACTORS AS
HE MAY DETERMINE AND DEEM TO BE OF GENERAL APPLICABILITY IN RESPECT OF
SUCH ACCOMMODATIONS, INCLUDING INCREASES OR DECREASES IN PROPERTY TAXES
AND OTHER COSTS."  "IN DESIGNATING DEFENSE-RENTAL AREAS, IN PRESCRIBING
REGULATIONS AND ORDERS ESTABLISHING MAXIMUM RENTS FOR SUCH
ACCOMMODATIONS, AND IN SELECTING PERSONS TO ADMINISTER SUCH REGULATIONS
AND ORDERS, THE ADMINISTRATOR SHALL, TO SUCH EXTENT AS HE DETERMINES TO
BE PRACTICABLE," CONSIDER RECOMMENDATIONS MADE BY STATE AND LOCAL
OFFICIALS (50 U.S.C. SEC. 902(B)).  THE FORM AND THE MANNER OF
ESTABLISHING A REGULATION OR ORDER, THE INSERTION OF CLASSIFICATIONS
AND DIFFERENTIATIONS, THE PROVISIONS FOR ADJUSTMENTS AND REASONABLE
EXCEPTIONS LIE WHOLLY "IN THE JUDGMENT OF THE ADMINISTRATOR" AS TO
THEIR NECESSITY OR PROPRIETY IN ORDER TO EFFECTUATE THE PURPOSES OF THE
ACT (50 U.S.C. SEC. 902(C)). 

THE "JUDGMENT OF THE ADMINISTRATOR" AS TO WHAT IS NECESSARY AND
PROPER TO EFFECTUATE THE PURPOSES OF THE ACT IS THE ONLY CONDITION
PRECEDENT FOR HIS ISSUE OF AN ORDER, REGULATION, OR PROHIBITION
AFFECTING SPECULATIVE OR MANIPULATIVE PRACTICES OR RENTING OR LEASING
PRACTICES IN CONNECTION WITH ANY DEFENSE-AREA HOUSING ACCOMMODATIONS,
WHICH PRACTICES "IN HIS JUDGMENT" ARE EQUIVALENT TO OR ARE LIKELY TO
RESULT IN RENT INCREASES INCONSISTENT WITH THE PURPOSES OF THE ACT (50
U.S.C. SEC. 902(D)). 

AT THE MOMENT THESE STATUTORY PROVISIONS WERE ADOPTED RENT CONTROL WAS
NOT EFFECTIVE IN ANY PART OF THE NATION.  THE ADMINISTRATOR WAS
APPOINTED FOR THE PURPOSE OF ENACTING SUCH CONTROL BY REGULATIONS AND
ORDERS.  AS WILL BE SEEN, THE FIRST STEP HE WAS AUTHORIZED TO TAKE WAS
TO ISSUE A DECLARATION STATING THE NECESSITY FOR REDUCTION OF RENTS
WITHIN A PARTICULAR DEFENSE-RENTAL AREA AND RECOMMENDATIONS AS TO THE
NATURE OF SUCH REDUCTIONS. 

HOW IS THE READER OF THE STATUTE TO KNOW WHAT IS MEANT BY THE TERM
"DEFENSE-RENTAL AREA"?  THE STATUTORY "STANDARD" IS THIS: 

"THE TERM 'DEFENSE-RENTAL AREA' MEANS THE DISTRICT OF COLUMBIA AND
ANY AREA DESIGNATED BY THE ADMINISTRATOR AS AN AREA WHERE DEFENSE
ACTIVITIES HAVE RESULTED OR THREATEN TO RESULT IN AN INCREASE IN THE
RENTS FOR HOUSING ACCOMMODATIONS INCONSISTENT WITH THE PURPOSES OF THIS
ACT."  (50 U.S.C. SEC. 942(D).) 

SAVE FOR THE DISTRICT OF COLUMBIA, THE DESIGNATION OF AN AREA WHERE
THE ACT IS TO OPERATE DEPENDS WHOLLY UPON THE ADMINISTRATOR'S JUDGMENT
THAT SO-CALLED DEFENSE ACTIVITIES HAVE RESULTED OR THREATEN TO RESULT
IN AN INCREASE OF RENTS INCONSISTENT WITH THE PURPOSES OF THE ACT. 
NOTE THAT THE JUDGMENT INVOLVED IS SOLELY THAT OF THE ADMINISTRATOR. 
HE NEED FIND NO FACTS, HE NEED MAKE NO INQUIRY, HE NEED NOT, UNLESS HE
THINKS IT PRACTICABLE, EVEN CONSULT LOCAL AUTHORITIES.  IN EXERCISING
HIS JUDGMENT THE ADMINISTRATOR MUST BE PERSUADED THAT "DEFENSE
ACTIVITIES" HAVE CAUSED OR WILL CAUSE A RISE IN RENTS.  THE STATUTE
NOWHERE DEFINES OR GIVES A HINT AS TO WHAT DEFENSE ACTIVITIES ARE.  IN
TIME OF WAR IT IS CONCEIVABLE THAT AN HONEST OFFICIAL MIGHT CONSIDER
ANY TYPE OF WORK A DEFENSE ACTIVITY.  HIS JUDGMENT, HOWEVER EXORBITANT,
DETERMINES THE COVERAGE OF THE ACT.  IT IS TRUE THAT HE IS AUTHORIZED
TO MAKE SUCH STUDIES AND INVESTIGATIONS AS HE DEEMS NECESSARY OR PROPER
TO ASSIST HIM IN PRESCRIBING REGULATIONS OR ORDERS (50 U.S.C. SEC.
922(A)), BUT HIS UNFETTERED JUDGMENT IS CONCLUSIVE WHETHER ANY ARE
NECESSARY OR PROPER. 

BUT IS NOT THE ADMINISTRATOR'S JUDGMENT CHANNELED AND CONFINED BY THE
FINAL LIMITATION THAT HIS ACTION MUST BE THE PROMOTION OF THE "PURPOSES
OF THIS ACT"?  WHAT ARE THEY?  SO FAR AS MATERIAL THEY ARE:  "TO
PREVENT SPECULATIVE, UNWARRANTED, AND ABNORMAL INCREASES IN  ...
RENTS" (50 U.S.C. SEC. 901(A)).  THERE ARE OTHER GENERAL PHRASES IN THE
THE ADMINISTRATOR MAY ENTERTAIN BUT, SO FAR AS RENTS ARE CONCERNED,
THEY ARE SO VAGUE AS TO BE USELESS; AS, FOR EXAMPLE, THE PROTECTION OF
PERSONS WITH RELATIVELY FIXED AND LIMITED INCOMES, CONSUMERS, WAGE
EARNERS, INVESTORS AND PERSONS DEPENDENT ON LIFE INSURANCE, ANNUITIES,
AND PENSIONS FROM UNDUE IMPAIRMENT OF THEIR STANDARD OF LIVING, AND
MORE OF THE SAME.  I HAVE DISCUSSED THESE "STANDARDS" IN AN OPINION
FILED IN YAKUS V. UNITED STATES, ANTE, P. 448. 

LANGUAGE COULD NOT MORE APTLY FIT THIS GRANT OF POWER THAN THAT USED
IN SCHECHTER CORP. V. UNITED STATES, SUPRA, AT P. 551:  "HERE IN EFFECT
IS A ROVING COMMISSION TO INQUIRE INTO EVILS AND UPON DISCOVERY CORRECT
THEM."  EQUALLY APPOSITE IS WHAT WAS SAID AT P. 541:  "IT (THE ACT)
DOES NOT UNDERTAKE TO PRESCRIBE RULES OF CONDUCT TO BE APPLIED TO
PARTICULAR STATES OF FACT DETERMINED BY APPROPRIATE ADMINISTRATIVE
PROCEDURE.  INSTEAD OF PRESCRIBING RULES OF CONDUCT, IT AUTHORIZES THE
MAKING OF CODES TO PRESCRIBE THEM.  FOR THAT LEGISLATIVE UNDERTAKING,
SEC. 3 SETS UP NO STANDARDS, ASIDE FROM THE STATEMENT OF THE GENERAL
AIMS OF REHABILITATION, CORRECTION AND EXPANSION DESCRIBED IN SECTION
ONE.  IN VIEW OF THE SCOPE OF THAT BROAD DECLARATION, AND OF THE NATURE
OF THE FEW RESTRICTIONS THAT ARE IMPOSED, THE DISCRETION OF THE
PRESIDENT IN APPROVING OR PRESCRIBING CODES, AND THUS ENACTING LAWS FOR
THE GOVERNMENT OF TRADE AND INDUSTRY THROUGHOUT THE COUNTRY, IS
VIRTUALLY UNFETTERED." 

PLACING THE RELEVANT SECTIONS OF THE STATUTE TOGETHER WE FIND THAT
THE TERM "DEFENSE-RENTAL AREA" MEANS ANY AREA DESIGNATED BY THE
ADMINISTRATOR AS AN AREA WHERE "DEFENSE ACTIVITIES" HAVE RESULTED, OR
THREATEN TO RESULT, IN "SPECULATIVE, UNWARRANTED, AND ABNORMAL
INCREASES IN  ... RENTS."  CAN ANYONE ASSERT THAT CONGRESS HAS THUS
LAID DOWN A STANDARD TO CONTROL THE ACTION OF THE EXECUTIVE?  THE
ADMINISTRATOR, AND HE ALONE, IS TO SAY WHAT INCREASE IS SPECULATIVE,
WHAT INCREASE IS UNWARRANTED, AND WHAT INCREASE IS ABNORMAL.  WHAT
FACTS IS HE TO CONSIDER?  SUCH AS HE CHOOSES.  WHAT FACTS DID HE
CONSIDER IN THE INSTANT CASE?  ONE CANNOT KNOW. 

BUT THE MATTER DOES NOT STOP HERE.  WE HAVE NOW ONLY ARRIVED AT THE
DESIGNATION OF AN AREA BY THE ADMINISTRATOR.  AS WE HAVE SEEN, HIS NEXT
STEP IS TO ISSUE A DECLARATION OR RECOMMENDATION.  HOW SHALL HE
DETERMINE WHETHER TO DO SO OR NOT?  AS SEEN BY THE ABOVE SUMMARY OF THE
ACT'S PROVISIONS, THE MATTER RESTS IN THE JUDGMENT OF THE ADMINISTRATOR
AS TO WHETHER SUCH ACTION IS NECESSARY OR PROPER TO EFFECTUATE THE
PURPOSES OF THE ACT.  WE HAVE JUST SEEN WHAT THOSE PURPOSES ARE. 
AGAIN, HIS SOLE AND UNTRAMMELED JUDGMENT AS TO WHAT IS NEEDED TO
PREVENT SPECULATIVE, UNWARRANTED OR ABNORMAL INCREASES IS THE ONLY
CRITERION OF HIS ACTION.  THE PUBLIC RECORDS SHOW THAT DECLARATIONS
MADE BY HIM MERELY STATE THAT, IN HIS JUDGMENT, THE BASIC FACT EXISTS. 
HE MAKES NO FINDINGS; HE IS NOT BOUND TO MAKE ANY SPECIFIC INQUIRY; HE
ISSUES A FIAT.  NO ONE IS TO BE ADVISED AS TO THE BASIS OF HIS
JUDGMENT; NO ONE NEED BE HEARD. 

DOES THE STATUTE AFFORD A STANDARD FOR THE ADMINISTRATOR TO FOLLOW IN
DECIDING THE QUANTITY OF THE REDUCTION?  AGAIN HIS JUDGMENT ALONE IS
DETERMINATIVE.  AND, MORE, IN HIS JUDGMENT ALONE RESTS THE DECISION AS
TO WHAT ACCOMMODATIONS WITHIN THE AREA ARE TO BE AFFECTED BY THE
DECREED REDUCTION.  HE MAY RECOMMEND THE REDUCTION OF RENT FOR "ANY
ACCOMMODATIONS" WITHIN THE DEFENSE-RENTAL AREA. 

AFTER THE ISSUE OF HIS DECLARATION AND RECOMMENDATIONS THE
ADMINISTRATOR MUST WAIT SIXTY DAYS BEFORE PUTTING HIS RECOMMENDATIONS
INTO EFFECT.  IF, IN HIS SOLE AND UNFETTERED JUDGMENT, STABILIZATION
HAS NOT BEEN ACCOMPLISHED, HE MAY THEN, BY REGULATION OR ORDER,
ESTABLISH SUCH MAXIMUM RENT OR MAXIMUM RENTS AS "IN HIS JUDGMENT" WILL
BE "GENERALLY FAIR AND EQUITABLE AND WILL EFFECTUATE THE PURPOSES OF
THIS ACT."  HIS ORDER MAY BE BASED UPON NOTHING BUT HIS OWN OPINION. 
IT MAY BE MADE WITHOUT NOTICE, WITHOUT HEARING, WITHOUT INQUIRY OF ANY
SORT, WITHOUT CONSULTATION WITH LOCAL AUTHORITIES.  THE RENTS
ESTABLISHED MAY VARY FROM STREET TO STREET, AND FROM SUBDIVISION TO
SUBDIVISION, ALL IN ACCORDANCE WITH THE ADMINISTRATOR'S PERSONAL
JUDGMENT.  THE ORDER MAY INVOLVE CLASSIFICATION AND EXEMPTION IF THE
ADMINISTRATOR, IN HIS SOLE DISCRETION, DEEMS THAT THIS COURSE WILL
"EFFECTUATE THE PURPOSES OF THIS ACT."  WHICH MEANS, OF COURSE, IF HE
THINKS NON-SPECULATION, NON-ABNORMALITY, OR SUFFICIENT WARRANT
JUSTIFIES THE DISCRIMINATIONS INVOLVED. 

HOW SHALL HE FIX THE AMOUNT OF THE MAXIMUM RENT?  THE ONLY STANDARD
GIVEN HIM IS THE EXERCISE OF HIS OWN JUDGMENT THAT THE RENTS FIXED WILL
BE "GENERALLY FAIR AND EQUITABLE AND WILL EFFECTUATE THE PURPOSES OF
THIS ACT."  "FAIR AND EQUITABLE" MIGHT CONCEIVABLY BE A WORKABLE
STANDARD IF INQUIRY INTO THE SPECIFIC FACTS WERE PRESCRIBED AND IF THE
BEARING OF THOSE FACTS WERE TO BE GIVEN WEIGHT IN THE ULTIMATE
DECISION, BUT THE ADDITION OF THE WORD "GENERALLY," AND THE FAILURE TO
PRESCRIBE ANY METHOD FOR ARRIVING AT WHAT IS FAIR AND EQUITABLE LEAVES
THE ADMINISTRATOR SUCH ROOM FOR DISREGARD OF SPECIFIC INJUSTICES AND
PARTICULAR CIRCUMSTANCES THAT NO LIVING PERSON COULD DEMONSTRATE ERROR
IN HIS CONCLUSION.  AND, AGAIN, EVEN THE PHRASE "GENERALLY FAIR AND
EQUITABLE" IS QUALIFIED BY EMPOWERING THE ADMINISTRATOR TO CONSIDER
ALSO QUESTIONS OF SPECULATION, UNWARRANTED ACTION OR ABNORMALITY OF
CONDITION.  SUCH A "STANDARD" IS PRETENSE.  IT IS A DEVICE TO ALLOW THE
ADMINISTRATOR TO DO ANYTHING HE SEES FIT WITHOUT ACCOUNTABILITY TO
ANYONE. 

BUT, IT IS SAID, THIS IS AN UNFAIR CHARACTERIZATION OF THE STATUTE
BECAUSE, "SO FAR AS PRACTICABLE," THE ADMINISTRATOR MUST ASCERTAIN AND
DULY CONSIDER RENTS PREVAILING FOR "SUCH ACCOMMODATIONS, OR COMPARABLE
ACCOMMODATIONS, ON OR ABOUT APRIL 1, 1941," AND THAT, ALTHOUGH HE MAY
PICK OUT SOME OTHER PERIOD WHICH HE THINKS MORE REPRESENTATIVE, HE MUST
NOT SELECT ANY PERIOD EARLIER THAN APRIL 1, 1940, AND, THEREFORE, HE IS
DEFINITELY CONFINED AND PROHIBITED IN EXERCISING CONTROL OVER RENTALS. 
THIS ARGUMENT WILL NOT DO.  THE MERE FACT THAT HE MAY NOT GO TO ANY
PERIOD FOR COMPARISON EARLIER THAN APRIL 1, 1940, ALTHOUGH HE MAY TAKE
ANY LATER PERIOD HE THINKS APPROPRIATE, DOES NOT SERVE TO OBLITERATE
THE FACT THAT AFTER SUCH WIDE AND UNRESTRICTED CHOICE OF A PERIOD HE
CAN MAKE ANY REGULATION HE SEES FIT. 

WITHOUT FURTHER ELABORATION IT IS PLAIN THAT THIS ACT CREATES
PERSONAL GOVERNMENT BY A PETTY TYRANT INSTEAD OF GOVERNMENT BY LAW. 
WHETHER THERE SHALL BE A LAW PRESCRIBING MAXIMUM RENTS ANYWHERE IN THE
UNITED STATES DEPENDS SOLELY ON THE ADMINISTRATOR'S PERSONAL JUDGMENT. 
WHEN THAT LAW SHALL TAKE EFFECT, HOW LONG IT SHALL REMAIN IN FORCE,
WHETHER IT SHALL BE MODIFIED, WHAT TERRITORY IT SHALL COVER, WHETHER
THE DIFFERENT AREAS SHALL BE SUBJECT TO DIFFERENT REGULATIONS, WHAT IS
THE NATURE OF THE ACTIVITY THAT SHALL MOTIVATE THE INSTITUTION OF THE
LAW, - ALL THESE MATTERS ARE BURIED IN THE BOSOM OF THE ADMINISTRATOR
AND NOWHERE ELSE. 

I AM FAR FROM URGING THAT, IN THE PRESENT WAR EMERGENCY, RENTS AND
PRICES SHALL NOT BE CONTROLLED AND STABILIZED.  BUT I DO INSIST THAT,
WAR OR NO WAR, THERE EXISTS NO NECESSITY, AND NO CONSTITUTIONAL POWER,
FOR CONGRESS' ABDICATION OF ITS LEGISLATIVE POWER AND REMISSION TO AN
EXECUTIVE OFFICIAL OF THE FUNCTION OF MAKING AND REPEALING LAWS
APPLICABLE TO THE CITIZENS OF THE UNITED STATES.  NO TRUER WORD WAS
EVER SAID THAN THIS COURT'S STATEMENT IN THE MINNESOTA MORTGAGE
MORATORIUM CASE  FN2  THAT EMERGENCY DOES NOT CREATE POWER BUT MAY
FURNISH THE OCCASION FOR ITS EXERCISE.  THE CONSTITUTION NO MORE
CONTEMPLATES THE ELIMINATION OF ANY OF THE COORDINATE BRANCHES OF THE
GOVERNMENT DURING WAR THAN IN PEACE.  IT WILL NOT DO TO SAY THAT NO
OTHER METHOD COULD HAVE BEEN ADOPTED CONSONANT WITH THE LEGISLATIVE
POWER OF CONGRESS.  "DEFENSE-RENTAL AREAS" AND "DEFENSE ACTIVITIES"
COULD HAVE BEEN REASONABLY DEFINED.  RENTS IN THOSE AREAS COULD HAVE
BEEN FROZEN AS OF A GIVEN DATE, OR REASONABLY PRECISE STANDARDS COULD
HAVE BEEN FIXED, AND ADMINISTRATIVE OR OTHER TRIBUNALS COULD HAVE BEEN
GIVEN POWER ACCORDING TO THE RULES AND STANDARDS PRESCRIBED TO DEAL
WITH SPECIAL SITUATIONS AFTER HEARING AND FINDINGS AND EXPOSITION OF
THE REASONS FOR ACTION.  I SAY THIS ONLY BECAUSE THE ARGUMENT HAS BEEN
MADE THAT THE EMERGENCY WAS SUCH THAT NO OTHER FORM OF LEGISLATION
WOULD HAVE SERVED THE END IN VIEW.  IT IS NOT FOR THIS COURT TO TELL
CONGRESS WHAT SORT OF LEGISLATION IT SHALL ADOPT, BUT IN THIS INSTANCE,
WHEN CONGRESS SEEMS TO HAVE ABDICATED AND TO HAVE ELIMINATED THE
LEGISLATIVE PROCESS FROM OUR CONSTITUTIONAL FORM OF GOVERNMENT, IT MUST
BE STATED THAT THIS CANNOT BE DONE UNLESS THE PEOPLE SO COMMAND OR
PERMIT BY AMENDING THE FUNDAMENTAL LAW.    THE OBVIOUS ANSWER TO WHAT I
HAVE SAID IS THAT THIS COURT HAS SUSTAINED, AND NO ONE WOULD NOW
QUESTION, THE CONSTITUTIONAL VALIDITY OF ACTS OF CONGRESS LAYING DOWN
PURPORTED STANDARDS AS VAGUE AS THOSE CONTAINED IN THE ACT UNDER
CONSIDERATION.  BUT THE ANSWER IS SPECIOUS.  GENERALLY SPEAKING,
STATUTES INVOKING THE AID OF THE ADMINISTRATIVE ARM OF THE GOVERNMENT
FOR THEIR APPLICATION AND ENFORCEMENT FALL INTO TWO CLASSES, - THOSE IN
WHICH A POLICY IS DECLARED AND AN ADMINISTRATIVE BODY IS EMPOWERED TO
ASCERTAIN THE FACTS IN PARTICULAR CASES SO AS TO DETERMINE WHETHER THAT
POLICY IN A PARTICULAR CASE HAD BEEN VIOLATED.  OF THIS TYPE OF
LEGISLATION THE INTERSTATE COMMERCE ACT AND THE FEDERAL TRADE
COMMISSION ACT ARE CLASSICAL EXAMPLES.  IN THE ONE, CARRIERS ARE
REQUIRED TO CHARGE JUST AND REASONABLE RATES FOR THEIR SERVICES.  IN
THE OTHER, CITIZENS ARE FORBIDDEN TO INDULGE IN UNFAIR METHODS OF
COMPETITION.  IF IT BE ASSERTED THAT THESE ARE BUT VAGUE STANDARDS OF
CONDUCT, IT MUST AT ONCE BE SAID THAT, IN ADOPTING THEM, CONGRESS
ADOPTED COMMON LAW CONCEPTS, THE ONE APPLYING TO THOSE PURSUING A
PUBLIC CALLING AND THE OTHER TO BUSINESS COMPETITORS IN GENERAL, AND
THAT THE STANDARDS ANNOUNCED CARRIED WITH THEM CONCEPTS AND CONTOURS
ATTACHING AS A RESULT OF A LONG LEGAL HISTORY.  BUT MORE, IN SUCH
INSTANCES, THE STANDARDS WERE NOT TO BE APPLIED IN THE UNCONTROLLED
JUDGMENT OF THE ADMINISTRATIVE BODY.  ON THE CONTRARY, THE STATUTES
REQUIRE A COMPLAINT SPECIFYING THE CONDUCT THOUGHT TO VIOLATE THE
STATUTE AND OPPORTUNITY FOR ANSWER, FOR HEARING, FOR PRODUCTION OF
EVIDENCE, AND FOR FINDINGS WHICH ARE SUBJECT TO JUDICIAL REVIEW.  WITH
SUCH A BACKGROUND FOR ADMINISTRATIVE PROCEDURE, WHAT SEEMS A LOOSE AND
VAGUE STANDARD BECOMES IN FACT A REASONABLY ASCERTAINABLE ONE THAT CAN
FAIRLY, EQUITABLY, AND JUSTLY BE APPLIED. 

THE OTHER AND DISTINCT CLASS OF CASES IS THAT IN WHICH CONGRESS, AS
IN THE PRESENT INSTANCE, DECLARES A POLICY AND ENTRUSTS TO AN
ADMINISTRATIVE AGENT, WITHOUT MORE, THE MAKING OF GENERAL RULES AND
REGULATIONS FOR THE IMPLEMENTATION OF THAT POLICY.  THESE RULES ARE, IN
ALL BUT NAME, STATUTES.  HERE, UNLESS THE RULE FOR THE GUIDANCE OF THE
ADMINISTRATOR IS CLEAR, AND THE CONSIDERATIONS UPON WHICH HE MAY ACT
ARE DEFINITE AND CERTAIN, IT MUST INEVITABLY FOLLOW THAT, TO A GREATER
OR LESS DEGREE, HE WILL MAKE THE LAW.  NO CITIZEN CAN QUESTION THE
MOTIVE OR PURPOSE OF CONGRESS IN ENACTING A SPECIFIC STATUTE TO CONTROL
AND DEFINE CONDUCT AS LONG AS CONGRESS ACTS WITHIN THE POWERS GRANTED
IT BY THE CONSTITUTION.  AS HAS BEEN POINTED OUT, CONGRESS, IN PASSING
THE EMERGENCY PRICE CONTROL ACT, HAS ATTEMPTED TO CLOTHE ITS DELEGATE -
AN ADMINISTRATOR - WITH THE SAME UNCHALLENGEABLE LEGISLATIVE POWER
WHICH IT POSSESSES.  IN THIS RESPECT THE DELEGATION IS NO DIFFERENT
FROM THAT INVOLVED IN THE NATIONAL INDUSTRIAL RECOVERY ACT WHICH WAS
HELD INVALID IN SCHECHTER CORP. V. UNITED STATES, SUPRA. 

WE ARE TOLD THAT "CONGRESS HAS SPECIFIED THE BASIC CONCLUSIONS OF
FACT UPON THE ASCERTAINMENT OF WHICH BY THE ADMINISTRATOR ITS STATUTORY
COMMAND IS TO BECOME EFFECTIVE."  THIS MEANS, I TAKE IT, THAT THE
ADMINISTRATOR NEED FIND NO FACTS, IN THE ACCEPTED SENSE OF THE
EXPRESSION.  HE NEED ONLY FORM AN OPINION, - FOR EVERY OPINION IS A
CONCLUSION OF FACT.  AND "BASIC" MEANS, EVIDENTLY, THAT HIS OPINION IS
THAT ONE OF THE "PURPOSES OF THE ACT" REQUIRES THE MAKING OF A LAW
APPLICABLE TO A GIVEN SITUATION.  IT IS NOT OF MATERIAL AID THAT HE
DISCLOSES THE REASONS FOR HIS ACTION.  SUCH A TEST OF CONSTITUTIONALITY
WAS UNANIMOUSLY REJECTED IN THE SCHECHTER CASE. 

THE STATUTE THERE IN QUESTION DECLARED THE POLICY OF CONGRESS TO BE
"TO REMOVE OBSTRUCTIONS TO THE FREE FLOW OF INTERSTATE AND FOREIGN
COMMERCE WHICH TEND TO DIMINISH THE AMOUNT THEREOF; AND TO PROVIDE FOR
THE GENERAL WELFARE BY PROMOTING THE ORGANIZATION OF INDUSTRY FOR THE
PURPOSE OF COOPERATIVE ACTION AMONG TRADE GROUPS, TO INDUCE AND
MAINTAIN UNITED ACTION OF LABOR AND MANAGEMENT UNDER ADEQUATE
GOVERNMENTAL SANCTIONS AND SUPERVISION, TO ELIMINATE UNFAIR COMPETITIVE
PRACTICES, TO PROMOTE THE FULLEST POSSIBLE UTILIZATION OF THE PRESENT
PRODUCTIVE CAPACITY OF INDUSTRIES, TO AVOID UNDUE RESTRICTION OF
PRODUCTION (EXCEPT AS MAY BE TEMPORARILY REQUIRED), TO INCREASE THE
CONSUMPTION OF INDUSTRIAL AND AGRICULTURAL PRODUCTS BY INCREASING
PURCHASING POWER, TO REDUCE AND RELIEVE UNEMPLOYMENT, TO IMPROVE
STANDARDS OF LABOR, AND OTHERWISE TO REHABILITATE INDUSTRY AND TO
CONSERVE NATURAL RESOURCES." 

UNDER THAT ACT THE PRESIDENT WAS REQUIRED TO FIND THAT THE
PROMULGATION BY HIM OF A CODE OF FAIR COMPETITION IN ANY INDUSTRY WOULD
"TEND TO EFFECTUATE THE POLICY" OF CONGRESS AS ABOVE DECLARED.  HE DID
SO FIND IN PROMULGATING THE CODE THERE UNDER ATTACK. 

I HAVE ALREADY QUOTED WHAT THIS COURT SAID WITH RESPECT TO THE SO
CALLED STANDARDS ESTABLISHED BY THE STATUTE.  THAT CASE AND THIS FALL
INTO EXACTLY THE SAME CATEGORY.  THERE IT WAS HELD THAT THE PRESIDENT'S
BASIC CONCLUSIONS OF FACT AMOUNTED TO AN EXERCISE OF HIS JUDGMENT AS TO
WHETHER A LAW SHOULD COME INTO BEING OR NOT.  HERE IT IS SAID THAT THE
ADMINISTRATOR'S BASIC CONCLUSIONS OF FACT ARE BUT THE ENFORCEMENT OF AN
ENACTMENT BY CONGRESS.  WHETHER EXPLICITLY AVOWED OR NOT, THE PRESENT
DECISION OVERRULES THAT IN THE SCHECHTER CASE. 

THE JUDGMENT OF THE ADMINISTRATOR IS, BY THIS ACT, SUBSTITUTED FOR
THE JUDGMENT OF CONGRESS.  IT IS SOUGHT TO MAKE THAT JUDGMENT
UNQUESTIONABLE JUST AS THE JUDGMENT OF CONGRESS WOULD BE UNQUESTIONABLE
ONCE EXERCISED AND EMBODIED IN A DEFINITE STATUTORY PROSCRIPTION.  BUT
CONGRESS, UNDER OUR FORM OF GOVERNMENT, MAY NOT SURRENDER ITS JUDGMENT
AS TO WHETHER THERE SHALL BE A LAW, OR WHAT THAT LAW SHALL BE, TO ANY
OTHER PERSON OR BODY. 

THE EMERGENCY PRICE CONTROL ACT MIGHT HAVE BEEN DRAWN SO AS TO LAY
DOWN STANDARDS FOR ACTION BY THE ADMINISTRATOR WHICH WOULD BE
REASONABLY DEFINITE; IT MIGHT HAVE AUTHORIZED INQUIRIES AND HEARINGS BY
HIM TO ASCERTAIN FACTS WHICH AFFECT SPECIFIC CASES WITHIN THE
PROVISIONS OF THE STATUTE.  THAT WOULD HAVE BEEN A CONSTITUTIONAL AND
PRACTICABLE MEASURE.  IT HAS DONE NO SUCH THING. 

BUT IT IS SAID THE ADMINISTRATOR'S POWERS ARE NOT ABSOLUTE, FOR THE
STATUTE PROVIDES JUDICIAL REVIEW OF HIS ACTION.  WHILE THE ACT PURPORTS
TO GIVE RELIEF FROM RULINGS OF THE ADMINISTRATOR BY APPEAL TO THE
EMERGENCY COURT OF APPEALS AND TO THIS COURT, THE GRANT OF JUDICIAL
REVIEW IS ILLUSORY.  HOW CAN ANY COURT SAY THAT THE ADMINISTRATOR HAS
ERRED IN THE EXERCISE OF HIS JUDGMENT IN DETERMINING WHAT ARE DEFENSE
ACTIVITIES?  HOW CAN ANY COURT PRONOUNCE THAT THE ADMINISTRATOR'S
JUDGMENT IS ERRONEOUS IN DEFINING A "DEFENSE-RENTAL AREA"?  WHAT ARE
THE MATERIALS ON WHICH TO REVIEW THE JUDGMENT OF THE ADMINISTRATOR THAT
ONE OR ANOTHER PERIOD IN THE LAST THREE YEARS REFLECTS, IN A GIVEN
AREA, NO ABNORMAL, SPECULATIVE, OR UNWARRANTED INCREASE IN RENT IN
PARTICULAR DEFENSE HOUSING ACCOMMODATIONS IN A CHOSEN DEFENSE-RENTAL
AREA?  IT IS MANIFEST THAT IT IS BEYOND THE COMPETENCE OF ANY COURT TO
CONVICT THE ADMINISTRATOR OF ERROR WHEN THE SUPPOSED MATERIALS FOR
JUDGMENT ARE SO VAGUE AND SO NUMEROUS AS THOSE PERMITTED BY THE
STATUTE. 

ONE ONLY NEED READ THE DECISIONS OF THE EMERGENCY COURT OF APPEALS TO
LEARN HOW FUTILE IT IS FOR THE CITIZEN TO ATTEMPT TO CONVICT THE
ADMINISTRATOR OF AN ABUSE OF JUDGMENT IN FRAMING HIS ORDERS, HOW
ILLUSORY THE PURPORTED JUDICIAL REVIEW IS IN FACT.  I HAVE SPOKEN MORE
AT LENGTH ON THIS SUBJECT IN MY OPINION IN YAKUS V. UNITED STATES,
ANTE, P. 448. 

I THINK THE JUDGMENT OF THE DISTRICT COURT WAS RIGHT AND SHOULD BE
AFFIRMED. 

FN1  PANAMA REFINING CO. V. RYAN, 293 U.S. 388; SCHECHTER CORP. V.
UNITED STATES, 295 U.S. 495. 

FN2  HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 425,
426. 
..END :






BILLINGS V. TRUESDELL, 321 U.S. 542 


NO. 215.  ARGUED FEBRUARY 2, 1944.  - DECIDED MARCH 27, 1944.  - 135
F.2D 505, REVERSED. 


1.  A REGISTRANT UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940
BECOMES "ACTUALLY INDUCTED" WITHIN THE MEANING OF SEC. 11 OF THE ACT
WHEN IN OBEDIENCE TO THE ORDER OF HIS DRAFT BOARD AND AFTER THE ARMY
HAS FOUND HIM ACCEPTABLE FOR SERVICE HE UNDERGOES WHATEVER CEREMONY OR
REQUIREMENTS OF ADMISSION THE WAR DEPARTMENT HAS PRESCRIBED.  P. 559. 

2.  UNTIL "ACTUALLY INDUCTED" WITHIN THE MEANING OF SEC. 11 OF THE
SELECTIVE TRAINING AND SERVICE ACT, A REGISTRANT UNDER THAT ACT IS
SUBJECT SOLELY TO CIVIL AND NOT TO MILITARY JURISDICTION.  P. 557. 

3.  A REGISTRANT UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF
1940, WHOSE CLAIM THAT HE WAS A CONSCIENTIOUS OBJECTOR HAD BEEN
REJECTED, WAS ORDERED BY HIS BOARD TO REPORT FOR INDUCTION.  AT THE
INDUCTION CENTER HE WAS EXAMINED AND PUT IN CLASS 1-B.  HE INFORMED THE
OFFICERS IN CHARGE THAT HE REFUSED TO SERVE IN THE ARMY AND THAT HE
WANTED TO TURN HIMSELF OVER TO THE CIVIL AUTHORITIES.  HE REFUSED TO
TAKE THE OATH, BUT IT WAS READ TO HIM AND HE WAS TOLD THAT HE WAS IN
THE ARMY.  HE WAS THEN ORDERED TO SUBMIT TO FINGERPRINTING, BUT REFUSED
TO OBEY.  MILITARY CHARGES WERE PREFERRED AGAINST HIM FOR WILLFUL
DISOBEDIENCE OF THAT ORDER.  HELD THAT HE WAS NOT SUBJECT TO TRIAL BY
COURT MARTIAL BUT WAS SUBJECT SOLELY TO CIVIL JURISDICTION.  PP. 544,
558. 

BILLINGS V. TRUESDELL, MAJOR GENERAL, UNITED STATES ARMY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 320 U.S. 725, TO REVIEW THE AFFIRMANCE OF AN ORDER, 46
F.SUPP.  663, DISCHARGING A WRIT OF HABEAS CORPUS AND REMANDING THE
PETITIONER TO THE CUSTODY OF THE RESPONDENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940(54 STAT.
894, 50 U.S.C. APP. SEC. 311) PROVIDES THAT "NO PERSON SHALL BE TRIED
BY ANY MILITARY OR NAVAL COURT MARTIAL IN ANY CASE ARISING UNDER THIS
ACT UNLESS SUCH PERSON HAS BEEN ACTUALLY INDUCTED FOR THE TRAINING AND
SERVICE PRESCRIBED UNDER THIS ACT OR UNLESS HE IS SUBJECT TO TRIAL BY
COURT MARTIAL UNDER LAWS IN FORCE PRIOR TO THE ENACTMENT OF THIS ACT." 
FN1  PETITIONER BILLINGS, WHO IS HELD BY THE ARMY ON A CHARGE OF A
VIOLATION OF THE ARTICLES OF WAR, CLAIMS THAT THIS PROVISION OF THE ACT
EXEMPTS HIM FROM MILITARY JURISDICTION AND MAKES HIM RESPONSIBLE SOLELY
TO THE CIVIL AUTHORITIES.  THE ANSWER TURNS ON WHETHER OR NOT BILLINGS
HAS BEEN "ACTUALLY INDUCTED" INTO THE ARMY.  THESE ARE THE FACTS. 

BILLINGS CLAIMS TO BE A CONSCIENTIOUS OBJECTOR.  HE REGISTERED UNDER
THE ACT WITH LOCAL BOARD NO. 1 OF OTTAWA COUNTY, KANSAS, STATING ON HIS
CARD AT THE TIME THAT HE WOULD NEVER SERVE IN THE ARMY.  HE WAS GIVEN A
1-B CLASSIFICATION BECAUSE OF DEFECTIVE EYESIGHT BUT WAS RECLASSIFIED
AS 1-A IN JANUARY, 1942.  THE LOCAL BOARD REJECTED HIS CLAIM THAT HE
WAS A CONSCIENTIOUS OBJECTOR.  HE APPEALED TO THE BOARD OF APPEAL WHICH
AFFIRMED THE RULING OF THE LOCAL BOARD.  THOUGH PETITIONER RESOLVED
NEVER TO SERVE IN THE ARMY, HE DESIRED TO COMPLY WITH ALL OF THE
REQUIREMENTS OF SELECTIVE SERVICE SHORT OF ACTUAL INDUCTION, SO THAT HE
MIGHT AVOID ALL CIVIL PENALTIES POSSIBLE.  ACCORDINGLY, HE CONSULTED
WITH DRAFT OFFICIALS IN TEXAS AND FACULTY MEMBERS AT THE UNIVERSITY OF
TEXAS WHERE HE TAUGHT AND CONCLUDED THAT TAKING THE OATH WAS A PRE
REQUISITE TO INDUCTION INTO THE ARMED FORCES.  HE THOUGHT HE MIGHT BE
FINALLY REJECTED BY THE ARMY ON ACCOUNT OF DEFECTIVE EYESIGHT.  BUT HE
RESOLVED THAT IF HE WAS NOT REJECTED AT THE INDUCTION STATION, HE WOULD
NOT TAKE THE OATH BUT WOULD TURN HIMSELF OVER TO THE CIVIL
AUTHORITIES.  HE WAS ORDERED BY HIS LOCAL BOARD TO REPORT ON AUGUST 12,
1942 AND TO PROCEED TO THE INDUCTION CENTER AT FORT LEAVENWORTH.  HE
JOINED THE GROUP SELECTED FOR INDUCTION AND WAS TRANSPORTED TO FORT
LEAVENWORTH WHERE HE AND THE OTHERS IN HIS GROUP SPENT THE NIGHT IN THE
BARRACKS.  THE NEXT MORNING AFTER BREAKFAST IN THE MESS HALL PETITIONER
WAS GIVEN BOTH THE PHYSICAL AND MENTAL EXAMINATIONS DURING WHICH HE
MADE CLEAR TO THE EXAMINING OFFICIALS HIS PURPOSE NOT TO SERVE IN THE
ARMY.  HE THEN REPORTED TO THE OFFICER WHO PASSED ON THE RESULTS OF THE
EXAMINATIONS AND WHO TOLD HIM THAT HE HAD BEEN PUT IN CLASS 1-B.  HE
THEN REPORTED TO THE INDUCTION OFFICE AND TOLD THE OFFICERS IN CHARGE
THAT HE REFUSED TO SERVE IN THE ARMY AND THAT HE WANTED TO TURN HIMSELF
OVER TO THE CIVIL AUTHORITIES.  THEY SAID THAT HE WAS ALREADY UNDER THE
JURISDICTION OF THE MILITARY AND PUT HIM UNDER GUARD TO PREVENT HIM
FROM LEAVING THE RESERVATION.  WITH THEIR CONSENT, HOWEVER, HE USED THE
TELEPHONE AND PROCURED THE SERVICES OF AN ATTORNEY WHOM HE RETAINED TO
FILE A PETITION FOR HABEAS CORPUS ON HIS BEHALF.  THEREUPON AN ARMY
OFFICER READ PETITIONER THE OATH OF INDUCTION WHICH PETITIONER REFUSED
TO TAKE.  HE WAS ADVISED THAT HIS REFUSAL MADE NO DIFFERENCE, THAT "YOU
ARE IN THE ARMY NOW."  HE WAS THEN ORDERED TO SUBMIT TO
FINGERPRINTING.  HE REFUSED TO OBEY.  MILITARY CHARGES WERE PREFERRED
AGAINST HIM FOR WILLFUL DISOBEDIENCE OF THAT ORDER. 

ON AUGUST 14, 1942, PETITIONER FILED THIS PETITION FOR A WRIT OF
HABEAS CORPUS ALLEGING THAT HE WAS NOT A MEMBER OF THE ARMED FORCES OF
THE UNITED STATES, THAT HE WAS NOT SUBJECT TO MILITARY JURISDICTION,
AND THAT IF HE HAD VIOLATED ANY LAWS THEY WERE THE CIVIL LAWS OF THE
UNITED STATES.  THE WRIT ISSUED.  RESPONDENT FILED A RETURN AND A
HEARING WAS HAD AT WHICH PETITIONER TESTIFIED.  THE DISTRICT COURT
DISCHARGED THE WRIT AND REMANDED PETITIONER TO RESPONDENT'S CUSTODY,
HOLDING THAT PETITIONER WAS SUBJECT TO MILITARY JURISDICTION.  46
F.SUPP.  663.  THE CIRCUIT COURT OF APPEALS AFFIRMED, HOLDING THAT
"INDUCTION WAS COMPLETED WHEN THE OATH WAS READ TO PETITIONER AND HE
WAS TOLD THAT HE WAS INDUCTED INTO THE ARMY."  135 F.2D 505, 507.  THE
CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED
BECAUSE OF THE IMPORTANCE OF THE PROBLEM IN THE ADMINISTRATION OF THE
ACT. 

                                  I. 

IT IS CONCEDED THAT PETITIONER WAS NOT "ACTUALLY INDUCTED" IN THE
ARMY WITHIN THE MEANING OF SEC. 11 OF THE ACT WHEN HE WAS ORDERED TO
REPORT TO THE INDUCTION STATION.  BUT IT IS CONTENDED THAT FROM THAT
TIME ON HE WAS SUBJECT TO AT LEAST A LIMITED MILITARY JURISDICTION BY
REASON OF THE ARTICLES OF WAR. 

AMONG THOSE WHOM ARTICLE 2 OF THE ARTICLES OF WAR (41 STAT. 787, 10
U.S.C. SEC. 1473) SUBJECTS TO MILITARY LAW ARE ALL PERSONS "LAWFULLY
CALLED, DRAFTED, OR ORDERED INTO, OR TO DUTY OR FOR TRAINING IN, THE
SAID SERVICE, FROM THE DATES THEY ARE REQUIRED BY THE TERMS OF THE
CALL, DRAFT OR ORDER TO OBEY THE SAME."  THIS PROVISION STANDING ALONE
WOULD HAVE MADE PETITIONER SUBJECT TO MILITARY LAW FROM AUGUST 12,
1942, THE DATE WHEN HE WAS REQUIRED BY THE LOCAL BOARD TO PRESENT
HIMSELF FOR INDUCTION.  THAT WAS INDEED THE CONSEQUENCE UNDER THE
SELECTIVE DRAFT ACT OF 1917(40 STAT. 76).  FRANKE V. MURRAY, 248 F.
865; UNITED STATES V. BULLARD, 290 F. 704; DIGEST OP. J.A.G. 1912-1930,
SEC. 2238; 2 OP. J.A.G. (1918) 327.3; SECOND REPORT, PROVOST MARSHAL
GENERAL (1918), P. 221.  THE ARTICLES OF WAR THEN IN FORCE (39 STAT.
651) HAD SUBSTANTIALLY THE SAME PROVISION AS THE PRESENT ARTICLE 2. 
SEC. 2 OF THE 1917 ACT PROVIDED, MOREOVER, THAT "ALL PERSONS DRAFTED
INTO THE SERVICE OF THE UNITED STATES  ...  SHALL, FROM THE DATE OF
SAID DRAFT OR ACCEPTANCE, BE SUBJECT TO THE LAWS AND REGULATIONS
GOVERNING THE REGULAR ARMY  ...  "  40 STAT. 78.  AND THE REGULATIONS
UNDER THE 1917 ACT STATED THAT WHEN A REGISTRANT WAS ORDERED TO REPORT
TO A LOCAL BOARD OR A STATE ADJUTANT GENERAL FOR DUTY HE WAS "IN THE
MILITARY SERVICE" FROM AND AFTER THE DAY AND HOUR THUS SPECIFIED. 
SECS. 133, 159D, 159E, 159F, 159G, 161.  AND SEE UNITED STATES V.
MCINTYRE, 4 F.2D 823.  BUT THE PRESENT ACT AND THE REGULATIONS
PROMULGATED UNDER IT ARE DIFFERENTLY DESIGNED. 

SEC. 3 OF THE ACT PROVIDES THAT "NO MAN SHALL BE INDUCTED FOR
TRAINING AND SERVICE UNDER THIS ACT UNLESS AND UNTIL HE IS ACCEPTABLE
TO THE LAND OR NAVAL FORCES FOR SUCH TRAINING AND SERVICE AND HIS
PHYSICAL AND MENTAL FITNESS FOR SUCH TRAINING AND SERVICE HAS BEEN
SATISFACTORILY DETERMINED."  MOREOVER, AS WE HAVE NOTED, CONGRESS BY
SEC. 11 WITHHELD FROM MILITARY COURTS MARTIAL JURISDICTION OVER CASES
ARISING UNDER THE ACT UNLESS THE PERSON INVOLVED HAD BEEN "ACTUALLY
INDUCTED" OR "UNLESS HE IS SUBJECT TO TRIAL BY COURT MARTIAL UNDER LAWS
IN FORCE PRIOR TO THE ENACTMENT OF THIS ACT."  THE "ACTUALLY INDUCTED"
CLAUSE OF SEC. 11 WAS OFFERED AS AN AMENDMENT ON THE FLOOR OF THE
SENATE BY SENATOR BONE.  86 CONG. REC. 10895.  IT WAS DESIGNED, AS
STATED BY THE SENATE CONFEREES, TO GIVE CIVIL COURTS JURISDICTION OVER
VIOLATIONS OF THE ACT PRIOR TO INDUCTION FOR TRAINING IN SUBSTITUTION
FOR THE HOUSE PROVISIONS THAT CIVIL AND MILITARY COURTS SHOULD HAVE
CONCURRENT JURISDICTION IN SUCH CASES.  86 CONG. REC. 11710, 12039,
12084.  IN VIEW OF THIS LEGISLATIVE HISTORY THE CONGRESS CAN HARDLY BE
PRESUMED TO HAVE RESTORED BY THE SECOND "UNLESS" CLAUSE IN SEC. 11 WHAT
IT TOOK AWAY BY THE FIRST "UNLESS" CLAUSE.  THAT IS TO SAY, SEC. 11 OF
THE ACT READ TOGETHER WITH SEC. 3 INDICATES TO US A PURPOSE TO VEST IN
THE CIVIL COURTS EXCLUSIVE JURISDICTION OVER ALL VIOLATIONS OF THE ACT
PRIOR TO ACTUAL INDUCTION.  IT IS SUGGESTED, HOWEVER, THAT PRIOR TO
THAT TIME A SELECTEE MAY BE SUBJECT TO MILITARY JURISDICTION BY REASON
OF ART. 2 OF THE ARTICLES OF WAR AND BE PROSECUTED BEFORE COURTS
MARTIAL FOR ALL OFFENSES PROSCRIBED BY THE ARTICLES, PROVIDED THOSE
ACTS ARE NOT MADE CRIMINAL BY THE ACT.  UNDER THAT VIEW A SELECTEE WHO
FAILED TO REPORT FOR INDUCTION (BOWLES V. UNITED STATES, 319 U.S. 33)
OR WHO, HAVING REPORTED, REFUSED TO BE EXAMINED (UNITED STATES V.
COLLURA, 139 F.2D 345) COULD BE PROSECUTED FOR SUCH OFFENSES ONLY IN
CIVIL COURTS.  SEC. 11.  BUT SINCE BY ART. 2 HE BECAME A SOLDIER WHEN
ORDERED TO REPORT, HE COULD BE PROSECUTED BY THE MILITARY FOR THOSE
OFFENSES WHICH WERE PROSCRIBED BY THE ARTICLES OF WAR BUT NOT BY THE
ACT. 

WE THINK THAT IS TOO NARROW A READING OF SEC. 11 OF THE ACT.  AS WE
POINTED OUT IN FALBO V. UNITED STATES, 320 U.S. 549, 552, THE
MOBILIZATION PROGRAM ESTABLISHED BY THE SELECTIVE SERVICE SYSTEM IS
DESIGNED TO OPERATE "AS ONE CONTINUOUS PROCESS FOR THE SELECTION OF MEN
FOR NATIONAL SERVICE" - A PROCESS IN WHICH THE CIVIL AND MILITARY
AGENCIES PERFORM INTEGRATED FUNCTIONS.  THE EXAMINATION OF MEN AT
INDUCTION CENTERS AND THEIR ACCEPTANCE OR REJECTION ARE PARTS OF THAT
PROCESS.  INDUCTION MARKS ITS END.  BUT PRIOR TO THAT TIME A SELECTEE
IS STILL SUBJECT TO THE ACT AND NOT YET A SOLDIER.  A CASE INVOLVING
HIS RIGHTS OR DUTIES AS A SELECTEE PRIOR TO THAT EVENT IS A CASE
ARISING UNDER THE ACT.  THE CIVIL AUTHORITIES, NOT THE MILITARY, ARE
CHARGED WITH THE DUTIES OF ENFORCEMENT AT THAT STAGE OF THE PROCESS. 
THAT NECESSARILY MEANS THAT THE MEASURE OF A SELECTEE'S RIGHTS AND
DUTIES IS TO BE FOUND IN THE ACT, NOT IN THE ARTICLES OF WAR.  FOR SEC.
16(A) OF THE ACT SUSPENDS ALL LAWS OR PARTS THEREOF WHICH ARE IN
CONFLICT WITH ITS PROVISIONS. 

WE ARE SUPPORTED IN THAT VIEW BY THE ADMINISTRATIVE CONSTRUCTION OF
THE ACT.  THE REGULATIONS PROMULGATED UNDER IT DEFINE A "DELINQUENT" AS
ONE WHO IS "LIABLE FOR TRAINING AND SERVICE" UNDER THE ACT AND "WHO
FAILS OR NEGLECTS TO PERFORM ANY DUTY REQUIRED OF HIM" BY THE ACT OR
THE REGULATIONS MADE PURSUANT THERETO.  SEC. 601.5.  AND PART 642,
WHICH CONTAINS DETAILED PROVISIONS CONCERNING THE RIGHTS AND DUTIES OF
"DELINQUENTS," PROVIDES:  "EVERY REGISTRANT WHO HAS HERETOFORE OR WHO
HEREAFTER FAILS TO COMPLY WITH AN ORDER TO REPORT FOR INDUCTION OR AN
ORDER TO REPORT FOR WORK OF NATIONAL IMPORTANCE SHALL BE REPORTED
PROMPTLY TO THE UNITED STATES ATTORNEY  ...  ; PROVIDED THAT IF THE
LOCAL BOARD BELIEVES THAT BY REASONABLE EFFORT IT MAY BE ABLE TO LOCATE
THE REGISTRANT AND SECURE HIS COMPLIANCE, IT MAY DELAY THE MAILING OF
SUCH DELINQUENT REGISTRANT REPORT FOR A PERIOD NOT IN EXCESS OF 30
DAYS."  SEC. 642.41(A).  MOREOVER, SEC. 642.42(A) PROVIDES:  "AFTER A
DELINQUENT HAS BEEN REPORTED TO THE UNITED STATES ATTORNEY, IT IS THE
RESPONSIBILITY OF THE UNITED STATES ATTORNEY TO DETERMINE WHETHER HE
SHALL BE PROSECUTED.  BEFORE PERMITTING SUCH A DELINQUENT TO BE
INDUCTED OR ASSIGNED TO WORK OF NATIONAL IMPORTANCE, THE LOCAL BOARD
SHOULD OBTAIN THE VIEWS OF THE UNITED STATES ATTORNEY CONCERNING SUCH
ACTION."  WE WILL DEVELOP SHORTLY THE PLACE OF SUCH REGULATIONS IN THE
SELECTIVE SERVICE SYSTEM.  IT IS SUFFICIENT AT THIS POINT TO NOTE THAT
THE REGULATIONS TREAT THE PROBLEMS OF "DELINQUENTS" AS MATTERS
EXCLUSIVELY FOR THE CIVIL AUTHORITIES.  FN2  WE CANNOT BELIEVE THAT THE
ACT WOULD HAVE BEEN GIVEN THAT CONSTRUCTION IF, AS IS NOW CONTENDED,
THE SELECTEE BECAME SUBJECT TO EVEN A LIMITED MILITARY JURISDICTION
PRIOR TO INDUCTION. 

                  II. 

RESPONDENT ARGUES IN THE SECOND PLACE THAT PETITIONER BECAME A
SOLDIER WHEN THE ARMY ACCEPTED HIM AFTER HIS EXAMINATIONS WERE
COMPLETED.  THAT ARGUMENT IS BASED LARGELY ON THE WAR DEPARTMENT
REGULATIONS. 

THE WAR DEPARTMENT REGULATIONS  FN3  IN FORCE IN AUGUST,
1942(MOBILIZATION REGULATIONS NO. 1-7, OCTOBER 1, 1940) PROVIDED IN
SEC. II, PAR. 6, THAT "THE FUNCTION OF THE INDUCTION STATION IS TO
PROVIDE THE FINAL EXAMINATIONS FOR REGISTRANTS SELECTED FOR INDUCTION
AND THE INDUCTION OF THOSE ACCEPTABLE TO THE ARMY."  SEC. II, PAR.
13(E) ENTITLED "INDUCTION CEREMONY" PROVIDED:  "ALL MEN SUCCESSFULLY
PASSING THE PHYSICAL EXAMINATION WILL BE IMMEDIATELY INDUCTED INTO THE
ARMY.  THE INDUCTION WILL BE PERFORMED BY AN OFFICER IN A SHORT,
DIGNIFIED CEREMONY IN WHICH THE MEN ARE ADMINISTERED THE OATH, AW 109:
'I,   , DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL BEAR TRUE FAITH AND
ALLEGIANCE TO THE UNITED STATES OF AMERICA; THAT I WILL SERVE THEM
HONESTLY AND FAITHFULLY AGAINST ALL THEIR ENEMIES WHOMSOEVER; AND THAT
I WILL OBEY THE ORDERS OF THE PRESIDENT OF THE UNITED STATES AND THE
ORDERS OF THE OFFICERS APPOINTED OVER ME, ACCORDING TO THE RULES AND
ARTICLES OF WAR.'  THEY WILL BE INFORMED THAT THEY ARE NOW MEMBERS OF
THE ARMY OF THE UNITED STATES AND GIVEN AN EXPLANATION OF THEIR
OBLIGATIONS AND PRIVILEGES.  IN THE EVENT OF REFUSAL TO TAKE AN OATH
(OR AFFIRMATION) BY ANY INDIVIDUAL HE WILL NOT BE REQUIRED TO RECEIVE
IT, BUT WILL BE INFORMED THAT THIS ACTION DOES NOT ALTER IN ANY RESPECT
HIS OBLIGATION TO THE UNITED STATES." 

THE ARGUMENT IS THAT SINCE THE ARMY REGULATIONS DO NOT CONDITION A
SELECTEE'S ENTRY INTO THE ARMY ON HIS SUBSCRIBING TO THE OATH,  FN4
INDUCTION MUST TAKE PLACE AT SOME ANTERIOR POINT OF TIME.  IT IS SAID
THAT WHILE SEC. 3 OF THE ACT PROVIDES THAT A SELECTEE SHALL NOT BE
INDUCTED "UNTIL HE IS ACCEPTABLE" TO THE ARMY, THERE IS NOTHING IN THE
ACT WHICH POSTPONES INDUCTION BEYOND THAT TIME.  THE INDUCTION CEREMONY
DESCRIBED IN SEC. II, PAR. 13(E) OF THE REGULATIONS IS SAID TO BE A
FORMAL EXERCISE WHICH SOLEMNIFIES THE OCCASION AND DURING WHICH THE
SOLDIER IS ADVISED CONCERNING HIS OBLIGATIONS AND RESPONSIBILITIES TO
THE UNITED STATES.  SEE UNITED STATES V. SMITH, 47 F.SUPP.  607.  THE
STATEMENT IN SEC. II, PAR. 13(E) THAT THOSE WHO PASS THE EXAMINATION
"WILL BE IMMEDIATELY INDUCTED INTO THE ARMY" IS READ TO MEAN THAT
SELECTEES SHALL THEREUPON BE ACCEPTED AS SOLDIERS.  A STATEMENT BY AN
OFFICER IN AUTHORITY THAT THEY ARE ACCEPTED, FOLLOWED BY THE READING OF
THE OATH AND SUCH OTHER EXPLANATION AS MAY BE REQUIRED COMPLETES THE
CEREMONY. 

THAT VIEW FINDS SUPPORT IN INFORMAL RULINGS OF THE JUDGE ADVOCATE
GENERAL'S OFFICE.  FN5  AND WAR DEPARTMENT REGULATIONS HAVE THE FORCE
OF LAW AS WE RECENTLY HAD OCCASION TO REAFFIRM IN STANDARD OIL CO. V.
JOHNSON, 316 U.S. 481, 484. 

BUT THAT CIRCUMSTANCE IS COMPLICATED HERE BY THE DIVISION OF
JURISDICTION BETWEEN THE CIVIL AND MILITARY AUTHORITIES WHICH THE ACT
CREATES.  THE PRESIDENT IS AUTHORIZED "TO SELECT AND INDUCT" MEN INTO
THE ARMED FORCES "IN THE MANNER PROVIDED IN THIS ACT."  SEC. 3(A).  NO
MAN SHALL BE "INDUCTED FOR TRAINING AND SERVICE UNDER THIS ACT UNLESS
AND UNTIL HE IS ACCEPTABLE" TO THE ARMED SERVICES.  SEC. 3(A).  AND THE
CIVIL AUTHORITIES RETAIN JURISDICTION OVER HIM UNTIL HE IS "ACTUALLY
INDUCTED."  SEC. 11.  THUS IT SEEMS CLEAR, AS WE HAVE ALREADY SAID,
THAT THE ACT, RATHER THAN THE WAR DEPARTMENT REGULATIONS OR THE
ARTICLES OF WAR, DETERMINES THE RIGHTS AND DUTIES OF SELECTEES, AS
DISTINGUISHED FROM INDUCTED MEN.  THE MANNER AND METHOD OF EFFECTING AN
INDUCTION INTO THE ARMY ARE THUS LEFT FOR THE WAR DEPARTMENT.  BUT THE
POWER OF THE PRESIDENT UNDER THE ACT "TO SELECT AND INDUCT" MEN
INCLUDES THE POWER TO DETERMINE WHEN THE SELECTIVE PROCESS IS
COMPLETED.  IT IS ONLY AFTER THAT PROCESS IS FINISHED THAT A SELECTEE
IS ELIGIBLE FOR INDUCTION. 

THAT VIEW RUNS THROUGHOUT THE SELECTIVE SERVICE REGULATIONS
PROMULGATED UNDER THE ACT.  THEY ARE THE REGULATIONS WHICH HAVE SPECIAL
RELEVANCY HERE.  THE RULEMAKING POWER UNDER THE ACT IS VESTED IN THE
PRESIDENT.  SEC. 10(A)(1).  THE PRESIDENT IN TURN IS GIVEN THE POWER TO
DELEGATE THAT AUTHORITY.  FN6  SEC. 10(B).  AND DURING THE PERIOD HERE
IN QUESTION, AS AT THE PRESENT TIME,  FN7 THE PRESIDENT HAD DELEGATED
IT TO THE DIRECTOR OF SELECTIVE SERVICE.  EXEC. ORDER, NO. 8545, SEPT.
23, 1940, 5 FED. REG., PP. 3779, 3781.  THE ACT AND THE REGULATIONS
PROMULGATED UNDER IT GIVE THE SELECTIVE PROCESS ITS INTEGRATED NATURE. 
FALBO V. UNITED STATES, SUPRA.  THEY DETERMINE THE ROLE WHICH THE
MILITARY AS WELL AS THE CIVILIAN AUTHORITIES ARE TO PLAY IN THE
ADMINISTRATIVE PROCESS OF SELECTION.  ID.  AS IN OTHER INSTANCES
(UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 549; GRAY V.
POWELL, 314 U.S. 402) THE INTERPRETATIONS OF AN ACT OF CONGRESS BY
THOSE CHARGED WITH ITS ADMINISTRATION ARE ENTITLED TO PERSUASIVE
WEIGHT. 

AS WE HAVE SAID, THE SELECTIVE SERVICE REGULATIONS SUPPORT OUR
INTERPRETATION OF THE ACT.  THUS IT IS PROVIDED THAT WHILE A SELECTEE
IS APPEALING OR OTHERWISE CONTESTING HIS CLASSIFICATION, HIS INDUCTION
SHALL BE STAYED.  SECS. 625.3, 626.14, 627.41, 628.7.  AND, AS WE HAVE
NOTED, WHEN A "DELINQUENT" HAS BEEN REPORTED TO A UNITED STATES
ATTORNEY, THE LOCAL BOARD SHALL NOT ORDER HIM TO REPORT FOR INDUCTION
WITHOUT OBTAINING THE VIEWS OF THE UNITED STATES ATTORNEY.  THESE
PROVISIONS, AS WELL AS THOSE GOVERNING THE CONTROL OF THE LOCAL BOARDS
OVER THE ORDERS TO REPORT FOR INDUCTION, WHICH WE WILL COME TO SHORTLY,
ARE FRAMED ON THE THEORY THAT THE TIME WHEN A SELECTEE'S STATUS MAY
CHANGE FROM CIVILIAN TO SOLDIER IS SUBJECT TO THE TERMS AND
REQUIREMENTS OF THE ACT.  THUS THEY CONFIRM OUR CONSTRUCTION OF THE
ACT. 

THE SELECTIVE SERVICE REGULATIONS ALSO DRAW A DISTINCTION BETWEEN
ACCEPTANCE (OR BEING FOUND ACCEPTABLE) BY THE ARMY AND INDUCTION. 
DURING THE PERIOD HERE IN QUESTION AN INDUCTED MAN WAS DEFINED AS "A
MAN WHO HAS BECOME A MEMBER OF THE LAND OR NAVAL FORCES THROUGH THE
OPERATION OF THE SELECTIVE SERVICE SYSTEM."  32 CODE FED. REG. 1941
SUPP. SEC. 601.7.  INDUCTION STATION WAS DEFINED AS ANY CAMP, ETC. "AT
WHICH SELECTED MEN ARE RECEIVED BY THE MILITARY AUTHORITIES AND, IF
FOUND ACCEPTABLE, ARE INDUCTED INTO MILITARY SERVICE."  SEC. 601.8. 
AND THOUGH THE REGULATION GOVERNING THE RECEPTION OF SELECTED MEN AT
THE INDUCTION STATION REFERRED TO THEIR TREATMENT "PENDING THEIR
INDUCTION OR REJECTION" (SEC. 633.8), "INDUCTION" WAS NOT OTHERWISE
USED IN THE SENSE OF "ACCEPTANCE."  FOR IT WAS DEFINED IN THE VERY NEXT
REGULATION IN THE FOLLOWING MANNER: "INDUCTION.  AT THE INDUCTION
STATION, THE SELECTED MEN FOUND ACCEPTABLE WILL BE INDUCTED INTO THE
LAND OR NAVAL FORCES."  SEC. 633.9. 

THESE REGULATIONS THUS SUGGEST THAT INDUCTION FOLLOWS ACCEPTANCE AND
IS A SEPARATE PROCESS.  READ IN THAT LIGHT THE WAR DEPARTMENT
REGULATIONS MAY BE RECONCILED WITH THE REGULATIONS UNDER THE ACT.  FOR
AS WE HAVE SEEN, THE WAR DEPARTMENT PROVIDED BY REGULATION AT THE TIME
BILLINGS APPEARED AT FORT LEAVENWORTH THAT THE "INDUCTION WILL BE
PERFORMED BY AN OFFICER IN A SHORT, DIGNIFIED CEREMONY IN WHICH THE MEN
ARE ADMINISTERED THE OATH," ETC. 

WE ARE CONFIRMED IN THIS CONCLUSION BY RECENT AMENDMENTS BOTH TO THE
ARMY REGULATIONS AND TO THE SELECTIVE SERVICE REGULATIONS.  THE ARMY
REGULATIONS, AS AMENDED MARCH 30, 1943, NOW STATE RESPECTING THE
"INDUCTION CEREMONY," THAT "THE INDUCTION WILL BE PERFORMED BY AN
OFFICER WHO, PRIOR TO ADMINISTERING THE OATH, WILL GIVE THE MEN ABOUT
TO BE INDUCTED A SHORT PATRIOTIC TALK" (ITALICS ADDED).  THIS MAKES
UNAMBIGUOUS THE FAIR INFERENCE IN THE EARLIER ARMY REGULATIONS THAT
SELECTEES WERE INDUCTED BY THE CEREMONY AND NOT BEFORE IT. 

MOREOVER, THE SELECTIVE SERVICE REGULATIONS HAVE BEEN AMENDED IN
RECENT MONTHS SO AS TO PROVIDE FOR PREINDUCTION PHYSICAL EXAMINATIONS
BEFORE A REGISTRANT "IS ORDERED TO REPORT FOR INDUCTION."  SEC. 629.1. 
AS UNDER THE FORMER REGULATIONS, THE GROUP TO BE FORWARDED FOR
EXAMINATION BY THE MILITARY AUTHORITIES IS ASSEMBLED BY THE LOCAL BOARD
AND GIVEN CERTAIN INSTRUCTIONS AND CREDENTIALS.  SEC. 629.22. 
REGISTRANTS IN CERTAIN CLASSES "MAY BE INDUCTED INTO SERVICE AT THE
INDUCTION STATION UPON BEING FOUND QUALIFIED FOR SERVICE," PROVIDED
THEY MAKE WRITTEN REQUEST OF THEIR BOARDS AND PROVIDED THERE IS NO
APPEAL PENDING IN THEIR CASES AND THE APPEAL PERIOD HAS EXPIRED.  SEC.
629.23.  ALL OTHER REGISTRANTS WHO ARE GIVEN THE PREINDUCTION
EXAMINATION ARE RETURNED TO THEIR LOCAL BOARD WHEN THE EXAMINATION IS
COMPLETED.  SEC. 629.22(E).  THOSE FOUND ACCEPTABLE BY THE ARMY OR NAVY
ARE LATER ORDERED TO REPORT FOR INDUCTION.  SECS. 632.1 ET SEQ. LOCAL
BOARDS, IN FILLING CALLS RECEIVED, ARE AUTHORIZED TO ALLOW TWENTY-ONE
DAYS BEFORE INDUCTION TO THOSE WHO "HAVE BEEN FOUND TO BE ACCEPTABLE TO
THE ARMY."  SEC. 632.4.  THIS TAKES THE PLACE OF THE EARLIER SYSTEM
WHEREBY SELECTEES WERE FIRST INDUCTED AND THEN GIVEN, IF THEY DESIRED,
FURLOUGHS TO ATTEND TO THEIR PERSONAL AFFAIRS.  ARMY REG. NO. 615-500,
SEPTEMBER 1, 1942, SEC. II, PAR. 16. 

WE MENTION THESE RECENT REGULATIONS BECAUSE THEY PERPETUATE THE
DISTINCTION BETWEEN ACCEPTANCE OR BEING FOUND ACCEPTABLE AND INDUCTION
WHICH APPEARED IN THE REGULATIONS WHEN BILLINGS REPORTED AT THE
INDUCTION STATION.  THAT THESE AMENDMENTS DO NOT EFFECT ANY CHANGE IN
THE CONCEPT OF "INDUCTION" IS APPARENT FROM THE FACT THAT ITS
DEFINITION HAS REMAINED PRACTICALLY THE SAME FROM THE TIME WHEN
BILLINGS REPORTED AT THE INDUCTION STATION TO THE PRESENT TIME.  FN8
IT COULD HARDLY BE MAINTAINED THAT A SELECTEE WHO HAS PASSED HIS
PREINDUCTION PHYSICAL EXAMINATION BUT WHO HAS NOT BEEN ORDERED TO
REPORT FOR INDUCTION IS SUBJECT TO MILITARY JURISDICTION.  AND IT WOULD
NOT SEEM PERMISSIBLE TO HOLD THAT HE WHO FAILED TO REPORT FOR INDUCTION
AT THE END OF THE SO-CALLED TWENTY-ONE DAY FURLOUGH PERIOD COULD BE
PROSECUTED BY A COURT MARTIAL BECAUSE HE HAD BEEN "ACTUALLY INDUCTED"
WITHIN THE MEANING OF SEC. 11.  BUT IF THAT IS TRUE, IT IS DIFFICULT TO
SEE WHY THERE WOULD BE A DIFFERENCE IN RESULT IF THE INTERVAL BETWEEN
THE TIME WHEN HE IS FOUND ACCEPTABLE OR IS ACCEPTED AND THE CEREMONY OF
INDUCTION WERE ONLY A FEW MINUTES, AS IN THE PRESENT CASE, RATHER THAN
A FEW WEEKS. 

                                 III. 

IT IS FINALLY CONTENDED, AS THE CIRCUIT COURT OF APPEALS HELD, THAT
PETITIONER WAS INDUCTED WHEN THE OATH WAS READ TO HIM AND HE WAS TOLD
THAT HE WAS IN THE ARMY.  AT THAT TIME HE HAD BEEN PLACED UNDER GUARD
AND WAS RETAINED AGAINST HIS WILL.  BUT THE ARGUMENT IS THAT THE
MILITARY HAS AUTHORITY TO EXERCISE FORCE FOR THE PURPOSE OF INDUCTING
SELECTEES INTO THE SERVICE. 

WE HAVE NO DOUBT OF THE POWER OF CONGRESS TO ENLIST THE MANPOWER OF
THE NATION FOR PROSECUTION OF THE WAR AND TO SUBJECT TO MILITARY
JURISDICTION THOSE WHO ARE UNWILLING, AS WELL AS THOSE WHO ARE EAGER,
TO COME TO THE DEFENSE OF THEIR NATION IN ITS HOUR OF PERIL.  ARVER V.
UNITED STATES, 245 U.S. 366.  BUT CONGRESS DID NOT CHOOSE THAT COURSE
IN THE PRESENT EMERGENCY.  IT IMPOSED A SEPARATE PENALTY ON THOSE WHO
DEFIED THE LAW - PROSECUTION BY THE CIVIL AUTHORITIES AND A MAXIMUM
PENALTY OF FIVE YEARS IMPRISONMENT OR A $10,000 FINE OR BOTH.  SEC.
11.  WE SAY THAT THAT PENALTY WAS AIMED AT THOSE WHO DEFIED THE LAW,
THOUGH IN THE WORDS OF SEC. 11 IT INCLUDES, OF COURSE, ONLY THOSE WHO
HAVE NOT BEEN "ACTUALLY INDUCTED."  BUT WE GIVE "INDUCTED" THE MEANING
IT HAS IN THE ACT AND IN THE REGULATIONS.  AS WE HAVE POINTED OUT, AN
INDUCTED MAN IS DEFINED BY THE SELECTIVE SERVICE REGULATIONS AS ONE
"WHO HAS BECOME A MEMBER OF THE LAND OR NAVAL FORCES THROUGH THE
OPERATION OF THE SELECTIVE SERVICE SYSTEM."  SEC. 601.7.  THAT SUGGESTS
THAT HE BECOMES "ACTUALLY INDUCTED" WITHIN THE MEANING OF THE ACT BY
SUBMITTING TO THE SELECTIVE SERVICE SYSTEM.  THE FACT THAT HE IS NOT A
VOLUNTEER IS, OF COURSE, IRRELEVANT AS THE ACT WAS DESIGNED AS A "FAIR
AND JUST SYSTEM OF SELECTIVE COMPULSORY MILITARY TRAINING AND
SERVICE."  SEC. 1(B).  BUT INDUCTION UNDER THE ACT AND THE PRESENT
REGULATIONS IS THE END PRODUCT OF SUBMISSION TO THE SELECTIVE PROCESS
AND COMPLIANCE WITH THE ORDERS OF THE LOCAL BOARD. 

IT MUST BE REMEMBERED THAT SEC. 11 IMPOSES ON A SELECTEE A CRIMINAL
PENALTY FOR ANY FAILURE "TO PERFORM ANY DUTY REQUIRED OF HIM UNDER OR
IN THE EXECUTION" OF THE ACT "OR THE RULES OR REGULATIONS MADE PURSUANT
THERETO."  HE WHO REPORTS TO THE INDUCTION STATION BUT REFUSES TO BE
INDUCTED VIOLATES SEC. 11 OF THE ACT AS CLEARLY AS ONE WHO REFUSES TO
REPORT AT ALL.  UNITED STATES V. COLLURA, SUPRA.  THE ORDER OF THE
LOCAL BOARD TO REPORT FOR INDUCTION INCLUDES A COMMAND TO SUBMIT TO
INDUCTION.  THOUGH THAT COMMAND WAS FORMERLY IMPLIED,  FN9  IT IS NOW
EXPRESS.  THE SELECTIVE SERVICE REGULATIONS STATE THAT IT IS THE "DUTY"
OF A REGISTRANT WHO RECEIVES FROM HIS LOCAL BOARD AN ORDER TO REPORT
FOR INDUCTION "TO APPEAR AT THE PLACE WHERE HIS INDUCTION WILL BE
ACCOMPLISHED," "TO OBEY THE ORDERS OF THE REPRESENTATIVES OF THE ARMED
FORCES WHILE AT THE PLACE WHERE HIS INDUCTION WILL BE ACCOMPLISHED,"
AND "TO SUBMIT TO INDUCTION."  SEC. 633.21(B).  THUS IT IS CLEAR THAT A
REFUSAL TO SUBMIT TO INDUCTION IS A VIOLATION OF THE ACT RATHER THAN A
MILITARY ORDER.  THE OFFENSE IS COMPLETE BEFORE INDUCTION AND WHILE THE
SELECTEE RETAINS HIS CIVILIAN STATUS.  THAT CIRCUMSTANCE THROWS LIGHT
ON THE MEANING OF THE WORDS "ACTUALLY INDUCTED" AS USED IN SEC. 11 OF
THE ACT.  CONGRESS BY ACCEPTING THE BONE AMENDMENT TO SEC. 11 SPECIFIED
THE MAXIMUM PENALTY TO BE IMPOSED ON THOSE WHO VIOLATED THE ACT OR
DISOBEYED AN ORDER OF THEIR BOARD PRIOR TO THEIR INDUCTION.  FN10  IT
ALSO WITHHELD FROM MILITARY COURTS JURISDICTION OVER THOSE OFFENDERS. 
AT THE SAME TIME, CONGRESS DID NOT AUTHORIZE THE ARMY TO SEARCH OUT
DELINQUENTS WHEREVER THEY MIGHT BE AND INDUCT THEM WITHOUT MORE.  WE
MUST THEREFORE ASSUME THAT CONGRESS AS A MATTER OF POLICY DECIDED THAT
THOSE WHO DISOBEYED THE ORDER OF THEIR BOARD AND REFUSED TO BE INDUCTED
WERE TO BE PUNISHED BY THE CIVIL AUTHORITIES AND BY THEM ALONE.  FN11
IF FORCIBLE SEIZURE OR DETENTION OF SUCH OFFENDERS BY THE ARMY WERE
SANCTIONED, THE CONGRESSIONAL POLICY OF PROVIDING THE MAXIMUM
PUNISHMENT FOR THEIR DELINQUENCY WOULD BE UNDERMINED. 

MOREOVER, IT SHOULD BE REMEMBERED THAT HE WHO REPORTS AT THE
INDUCTION STATION IS FOLLOWING THE PROCEDURE OUTLINED IN THE FALBO CASE
FOR THE EXHAUSTION OF HIS ADMINISTRATIVE REMEDIES.  UNLESS HE FOLLOWS
THAT PROCEDURE HE MAY NOT CHALLENGE THE LEGALITY OF HIS CLASSIFICATION
IN THE COURTS.  BUT WE CAN HARDLY SAY THAT HE MUST REPORT TO THE
MILITARY IN ORDER TO EXHAUST HIS ADMINISTRATIVE REMEDIES AND THEN SAY
THAT IF HE DOES SO REPORT HE MAY BE FORCIBLY INDUCTED AGAINST HIS
WILL.  THAT WOULD INDEED MAKE A TRAP OF THE FALBO CASE BY SUBJECTING
THOSE WHO REPORTED FOR COMPLETION OF THE SELECTIVE SERVICE PROCESS TO
MORE SEVERE PENALTIES THAN THOSE WHO STAYED AWAY IN DEFIANCE OF THE
BOARD'S ORDER TO REPORT. 

THESE CONSIDERATIONS TOGETHER INDICATE TO US THAT A SELECTEE BECOMES
"ACTUALLY INDUCTED" WITHIN THE MEANING OF SEC. 11 OF THE ACT WHEN IN
OBEDIENCE TO THE ORDER OF HIS BOARD AND AFTER THE ARMY HAS FOUND HIM
ACCEPTABLE FOR SERVICE HE UNDERGOES WHATEVER CEREMONY OR REQUIREMENTS
OF ADMISSION THE WAR DEPARTMENT HAS PRESCRIBED. 

WE ARE NOT CONCERNED WITH THE WISDOM OF EITHER THE "ACTUALLY
INDUCTED" CLAUSE IN SEC. 11 OR THE PROCEDURE FOR SELECTION AND
INDUCTION WHICH HAS BEEN PRESCRIBED UNDER THE ACT.  NOR IS IT FOR US TO
DECIDE WHETHER THE MAXIMUM PENALTY PROVIDED BY CONGRESS IS ADEQUATE FOR
THOSE WHO FLOUT THE ACT WHILE THE NATION FIGHTS FOR ITS VERY
EXISTENCE.  BUT WHERE CONGRESS HAS DRAWN THE LINE BETWEEN CIVIL AND
MILITARY JURISDICTION IT IS OUR DUTY TO RESPECT IT.  REVERSED.    FN1
SEC. 11 SO FAR AS MATERIAL HERE PROVIDES:  "ANY PERSON ...  WHO IN ANY
MANNER SHALL KNOWINGLY FAIL OR NEGLECT TO PERFORM ANY DUTY REQUIRED OF
HIM UNDER OR IN THE EXECUTION OF THIS ACT, OR RULES OR REGULATIONS MADE
PURSUANT TO THIS ACT,  ...  SHALL, UPON CONVICTION IN THE DISTRICT
COURT OF THE UNITED STATES HAVING JURISDICTION THEREOF, 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, OR IF SUBJECT TO
MILITARY OR NAVAL LAW MAY BE TRIED BY COURT MARTIAL, AND, ON
CONVICTION, SHALL SUFFER SUCH PUNISHMENT AS A COURT MARTIAL MAY
DIRECT.  NO PERSON SHALL BE TRIED BY ANY MILITARY OR NAVAL COURT
MARTIAL IN ANY CASE ARISING UNDER THIS ACT UNLESS SUCH PERSON HAS BEEN
ACTUALLY INDUCTED FOR THE TRAINING AND SERVICE PRESCRIBED UNDER THIS
ACT OR UNLESS HE IS SUBJECT TO TRIAL BY COURT MARTIAL UNDER LAWS IN
FORCE PRIOR TO THE ENACTMENT OF THIS ACT." 

FN2  WHILE THE REGULATIONS GOVERNING "DELINQUENTS" CITED IN THE TEXT
ARE THOSE PRESENTLY IN FORCE, THE ONES IN EFFECT AT THE TIME OF
BILLINGS' REFUSAL TO BE INDUCTED WERE OF THE SAME TENOR AND WERE THEN
INCLUDED IN SEC. 601.5, SEC. 642.4, SEC. 642.5. 

IT SHOULD ALSO BE NOTED THAT THESE REGULATIONS CONTAIN DETAILED
PROVISION FOR THE PAROLE OF PERSONS CONVICTED OF VIOLATIONS OF THE
ACT.  SECS. 643.1 ET SEQ. THOSE REQUIRED TO REGISTER UNDER THE ACT MAY
BE PAROLED BY THE ATTORNEY GENERAL ON THE RECOMMENDATION OF THE
DIRECTOR OF SELECTIVE SERVICE FOR INDUCTION OR FOR OTHER ASSIGNMENTS. 
SEC. 643.2.  THE ATTORNEY GENERAL HAS THE POWER TO IMPOSE "SUCH TERMS
AND CONDITIONS AS HE MAY DEEM PROPER" UPON THE PAROLEE AND SHALL
SUPERVISE HIM, AND MAY SUSPEND OR REVOKE THE PAROLE, EXCEPT WHEN THE
PAROLEE IS "IN THE ACTIVE LAND OR NAVAL FORCES OF THE UNITED STATES." 
SECS. 643.8, 643.9.  AND ARMY REGULATIONS NO. 615-500, SEC. II, PAR.
7(B)(5) PROVIDE THAT REGISTRANTS CONVICTED OF VIOLATION OF THE ACT
"WILL BE ACCEPTED FOR INDUCTION AT ANY TIME," PROVIDED THE ATTORNEY
GENERAL OF THE UNITED STATES HAS GRANTED PAROLE "FOR THE PURPOSE OF
INDUCTION." 

FN3  THESE WERE SUPERSEDED SEPTEMBER 1, 1942, BY ARMY REGULATIONS NO.
615-500. 

FN4  THE CASE OF A SELECTEE IS DISTINGUISHED FROM THAT OF AN ENLISTEE
WHO IS REQUIRED BY ART. 109 OF THE ARTICLES OF WAR TO TAKE THE OATH. 
IDENTICAL REQUIREMENTS IN THE PREDECESSOR ARTICLES OF WAR APPLICABLE TO
ENLISTEES WERE CONSTRUED AS INAPPLICABLE TO DRAFTEES UNDER THE
SELECTIVE DRAFT ACT OF 1917.  SEE 1 OP. J.A.G. 169(1917); FRANKE V.
MURRAY, SUPRA, PP. 868-869. 

FN5  THE FOLLOWING PROPOSITIONS WERE SUBMITTED TO THE CHIEF, MILITARY
AFFAIRS SECTION OF THE JUDGE ADVOCATE GENERAL'S OFFICE:  "1.  THAT THE
ONLY PURPOSE OF THE ADMINISTRATION OF THE OATH AS SET OUT IN MR 1-7,
PARAGRAPH 13E, IS FOR THE PURPOSE OF INFORMING THE INDIVIDUAL OF HIS
OBLIGATIONS AND RESPONSIBILITIES TO THE UNITED STATES OF AMERICA, AND
HIS ACQUIESCENCE IN, OR ACKNOWLEDGMENT OF THIS OBLIGATION, BY SOME
OVERT ACT INDICATING ACCEPTANCE THEREOF IS IMMATERIAL.  2.  THAT
INDUCTION IS COMPLETE IMMEDIATELY UPON FULL ACCEPTANCE OF THE
INDIVIDUAL BY THE GOVERNMENT.  THE OATH OR ANY ACT OR REQUIREMENT
THEREAFTER IS MINISTERIAL ONLY AND IS NOT NECESSARY TO THE COMPLETION
OF INDUCTION.  3.  FOR INDUCTION NO ACQUIESCENCE OR ACCEPTANCE ON THE
PART OF THE INDIVIDUAL IS REQUIRED." 

ON JUNE 6, 1941, THE FOLLOWING INFORMAL RULING WAS MADE:  "GENERALLY
SPEAKING, THE ABOVE-QUOTED CONCLUSIONS ARE BELIEVED TO BE SOUND, AND IT
THEREFORE FOLLOWS THAT A REFUSAL ON THE PART OF A SELECTEE TO TAKE THE
PRESCRIBED OATH DOES NOT LEGALLY AFFECT THE VALIDITY OF HIS
INDUCTION."  WE ARE ADVISED BY THE JUDGE ADVOCATE GENERAL ON FEBRUARY
4, 1944, IN A SUPPLEMENTAL MEMORANDUM FILED BY THE SOLICITOR GENERAL
THAT ALTHOUGH THAT OPINION WAS EXPRESSED INFORMALLY BY LETTER AND NOT
IN A FORMAL OPINION IT "REPRESENTED THE VIEWS OF THE JUDGE ADVOCATE
GENERAL" AND THAT THOSE VIEWS "HAVE NOT BEEN MODIFIED AND ARE HEREBY
ADHERED TO." 

FN6  SEC. 10(B) AS ORIGINALLY ENACTED CONTAINED NO LIMITATION AS TO
THE PERSONS TO WHOM THAT AUTHORITY MIGHT BE DELEGATED.  BUT BY THE ACT
OF DECEMBER 5, 1943, 57 STAT. 598, SEC. 10(B) WAS AMENDED TO READ:
"THE PRESIDENT IS AUTHORIZED TO DELEGATE TO THE DIRECTOR OF SELECTIVE
SERVICE ONLY, ANY AUTHORITY VESTED IN HIM UNDER THIS ACT (EXCEPT

FN7  SEE EXEC. ORDER NO. 9410, DECEMBER 23, 1943, 8 FED. REG. 17319. 

FN8  AS WE HAVE INDICATED, THE SELECTIVE SERVICE REGULATIONS IN SEC.
633.9 DEFINED "INDUCTION" AT THE TIME BILLINGS REPORTED TO THE
INDUCTION STATION AS FOLLOWS:  "AT THE INDUCTION STATION, THE SELECTED
MEN FOUND ACCEPTABLE WILL BE INDUCTED INTO THE LAND OR NAVAL FORCES." 
AT THE PRESENT TIME SEC. 633.25 DEFINES "INDUCTION" AS FOLLOWS:  "AT
THE ARMY RECEPTION CENTER, THE NAVY RECRUITING STATION, OR THE
INDUCTION STATION, AS THE CASE MAY BE, THE SELECTED MEN WHO HAVE BEEN
FORWARDED FOR INDUCTION AND FOUND ACCEPTABLE WILL BE INDUCTED INTO THE
LAND OR NAVAL FORCES." 

FN9  SEE SECS. 633.1, 633.2, 633.6 IN FORCE IN AUGUST, 1942. 

FN10  THE CONFERENCE REPORT STATED:  "THE SENATE BILL PROVIDED THAT
PERSONS SUBJECT TO THE BILL WHO FAIL TO REPORT FOR DUTY AS ORDERED
SHOULD BE TRIED EXCLUSIVELY IN THE DISTRICT COURTS OF THE UNITED STATES
AND NOT BY MILITARY AND NAVAL COURTS MARTIAL, UNLESS SUCH PERSONS HAD
ACTUALLY BEEN INDUCTED FOR THE TRAINING AND SERVICE PRESCRIBED IN THE
BILL OR UNLESS THEY WERE SUBJECT TO TRIAL BY COURT MARTIAL UNDER LAWS
IN FORCE PRIOR TO THE ENACTMENT OF THE BILL.  THE HOUSE AMENDMENT IN
SUCH CASES GAVE THE COURTS MARTIAL AND THE DISTRICT COURTS CONCURRENT
JURISDICTION, AND MADE FAILURE OF PERSONS TO REPORT FOR DUTY SUBJECT TO
THE LAWS AND REGULATIONS CONCERNING THAT BRANCH OF THE LAND AND NAVAL
FORCES TO WHICH THEY WERE ASSIGNED FROM THE DATE THEY WERE REQUIRED BY
THE TERMS OF THE ORDER TO OBEY THE SAME, EVEN THOUGH THEY HAD NOT
ACTUALLY BEEN INDUCTED. 

"THE CONFERENCE AGREEMENT CONTAINS THE PROVISIONS OF THE SENATE BILL
IN THIS RESPECT."  86 CONG. REC. 12039. 

FN11  IT IS TRUE THAT FOR OTHER PURPOSES CONGRESS HAS TREATED
SELECTEES WHO ARE ORDERED TO REPORT FOR INDUCTION THE SAME AS THOSE IN
MILITARY SERVICE.  THUS THE BENEFITS OF THE SOLDIERS' AND SAILORS'
CIVIL RELIEF ACT OF 1940(50 U.S.C. APP. SEC. 501, 54 STAT. 1178), WHICH
ORIGINALLY OBTAINED ONLY TO "PERSONS IN THE MILITARY SERVICE," WERE
EXTENDED BY AN ACT OF OCTOBER 6, 1942, TO SELECTEES FROM THE DATE OF
RECEIVING AN ORDER TO REPORT UNTIL THE TIME OF ACTUALLY REPORTING FOR
INDUCTION.  50 U.S.C. APP. SUPP. II, SEC. 516, 56 STAT. 770.  BUT, AS
WE HAVE POINTED OUT, THE SELECTIVE SERVICE ACT AND THE REGULATIONS
UNDER IT HAVE NOT MADE THE SELECTEE'S CIVILIAN STATUS CHANGE TO THAT OF
SOLDIER AT EITHER POINT OF TIME. 

MR. JUSTICE ROBERTS IS OF THE VIEW THAT THE JUDGMENT SHOULD BE
AFFIRMED FOR THE REASONS STATED IN THE OPINION OF THE CIRCUIT COURT OF
APPEALS, 135 F.2D 505. 

MR. JUSTICE FRANKFURTER: 

UNDER THE SELECTIVE SERVICE ACT OF 1940, UNLIKE THAT OF 1917, A
SELECTEE IS NOT SUBJECT TO TRIAL BY A MILITARY COURT MARTIAL UNTIL HE
HAS BEEN "ACTUALLY INDUCTED" FOR TRAINING AND SERVICE.  BUT CONGRESS
DID NOT DEFINE WHEN HE WAS SO "INDUCTED."  IT THUS LEFT TO JUDICIAL
CONSTRUCTION WHEN THE CIVILIAN STATUS CEASED AND THE MILITARY STATUS
BEGAN.  IN A MATTER OF THIS SORT, INVOLVING AS IT DOES THE PROCESS OF
COMPULSORY RECRUITING OF THE NATION'S ARMY IN THE MIDST OF WAR, IT IS
OF VITAL IMPORTANCE THAT THE LINE BE DRAWN AS DEFINITELY AS THE
LEGISLATION REASONABLY PERMITS IN ORDER THAT AMBIGUITY AND CONTROVERSY
BE REDUCED TO A MINIMUM. 

IN THE FALBO CASE WE HELD THE OTHER DAY THAT "THE CONNECTED SERIES OF
STEPS INTO THE NATIONAL SERVICE WHICH BEGINS WITH REGISTRATION WITH THE
LOCAL BOARD DOES NOT END UNTIL THE REGISTRANT IS ACCEPTED BY THE ARMY
...  "  320 U.S. 549, 553.  THE LINE THAT WAS THUS DRAWN - WHEN "THE
CONNECTED SERIES OF STEPS" HAS ENDED - SEEMS TO ME TO BE THE LINE TO
DRAW BETWEEN THE CIVIL AND MILITARY STATUS OF A REGISTRANT.  IN OTHER
WORDS, WHEN ACCEPTANCE OF A REGISTRANT IS COMMUNICATED BY THE ARMY, THE
ARMY HAS MADE ITS CHOICE.  THE MAN IS THEN IN THE ARMY.  SUCH WAS THE
RULING, AND I BELIEVE THE CORRECT RULING, OF THE COURT BELOW.  135 F.2D
505.  ACCORDING TO THE COURT'S OPINION, AS I UNDERSTAND IT, THE ACT
ITSELF DOES NOT DRAW THIS LINE BUT CONGRESS HAS AUTHORIZED SUCH A LINE
TO BE DRAWN BY APPROPRIATE REGULATIONS.  ON THAT ASSUMPTION, I DO NOT
DISSENT. 
..END :



EQUITABLE SOCIETY V. COMM'R, 321 U.S. 560 


NO. 492.  ARGUED MARCH 8, 9, 1944.  - DECIDED MARCH 27, 1944.  - 137
F.2D 623, AFFIRMED. 


1.  UPON REVIEW OF DECISIONS OF THE TAX COURT, IT IS NOT THE FUNCTION
OF THE REVIEWING COURT TO DRAW INFERENCES FROM FACTS OR TO SUPPLEMENT
STIPULATED FACTS.  P. 563. 

2.  A DECISION OF THE TAX COURT ON REVIEW MAY BE MODIFIED OR REVERSED
ONLY IF IT IS "NOT IN ACCORDANCE WITH LAW."  P. 563. 

3.  "INTEREST" USUALLY DENOTES AN AMOUNT WHICH ONE HAS CONTRACTED TO
PAY FOR THE USE OF BORROWED MONEY.  P. 564. 

4.  UPON THE RECORD, "EXCESS INTEREST DIVIDENDS" PAID BY THE LIFE
INSURANCE COMPANY WERE NOT, AS A MATTER OF LAW, "INTEREST" WITHIN THE
MEANING OF SEC. 203(A)(8) OF THE REVENUE ACT OF 1932; AND THE TAX
COURT'S DISALLOWANCE OF THEIR DEDUCTION AS "INTEREST ON INDEBTEDNESS"
MAY NOT BE SET ASIDE.  P. 564. 

5.  PROVISIONS OF THE REVENUE ACTS FOR DEDUCTIONS FROM TAXES ARE TO
BE STRICTLY CONSTRUED.  P. 564. 

EQUITABLE LIFE ASSURANCE SOCIETY V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 320 U.S. 733, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE TAX COURT, 44 B.T.A. 293, DISALLOWING TAXPAYER'S DEDUCTION OF
EXCESS INTEREST DIVIDENDS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER PETITIONER, A MUTUAL LIFE
INSURANCE COMPANY, WAS ENTITLED TO DEDUCT FROM ITS GROSS INCOME FOR
1933 "EXCESS INTEREST DIVIDENDS" PAID WITHIN THAT YEAR.  THE DEDUCTION
WAS AUTHORIZED IF THE AMOUNTS WERE "INTEREST" PAID ON "INDEBTEDNESS"
FN1  WITHIN THE MEANING OF SEC. 203(A)(8) OF THE REVENUE ACT OF 1932,
47 STAT. 169, 225.  THE TAX COURT DENIED THE DEDUCTION.  44 B.T.A.
293.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  137 F.2D 623.  THE CASE
IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE
THE DECISION BELOW AND PENN MUTUAL LIFE INS. CO. V. COMMISSIONER, 92
F.2D 962, FROM THE THIRD CIRCUIT CONFLICTED WITH COMMISSIONER V.
LAFAYETTE LIFE INS. CO., 67 F.2D 209, FROM THE SEVENTH. 

THE FACTS ARE STIPULATED AND SHOW THE FOLLOWING:  DURING AND PRIOR TO
1933 PETITIONER ISSUED LIFE INSURANCE POLICIES WHICH GAVE TO THE
INSURED (AND IN SOME CASES TO THE BENEFICIARY) THE RIGHT TO HAVE
PETITIONER HOLD THE FACE AMOUNT OF THE POLICIES UPON THEIR MATURITY
UNDER ONE OR MORE OF SEVERAL OPTIONAL MODES OF SETTLEMENT IN LIEU OF
PAYMENT IN A LUMP SUM.  THESE OPTIONAL MODES OF SETTLEMENT ARE
EXERCISED UNDER SUPPLEMENTARY CONTRACTS.  THUS ONE FORM OF
SUPPLEMENTARY CONTRACT PROVIDES THAT THE AMOUNT OF THE POLICY SHALL BE
LEFT ON DEPOSIT WITH PETITIONER.  AND IT IS PROVIDED IN CASE OF THIS,
AS WELL AS THE OTHER TYPES OF SUPPLEMENTARY CONTRACTS WHICH ARE
INVOLVED,  FN2  THAT "IF IN ANY YEAR THE SOCIETY DECLARES" THAT FUNDS
HELD UNDER THESE OPTIONS SHALL RECEIVE INTEREST IN EXCESS OF 3% PER
ANNUM, THE PAYMENTS UNDER THEM "SHALL BE INCREASED FOR THAT YEAR BY AN
EXCESS INTEREST DIVIDEND AS DETERMINED AND APPORTIONED BY THE
SOCIETY."  DURING THE YEAR 1933 SOME $534,000 OF EXCESS INTEREST
DIVIDENDS WAS PAID BY PETITIONER UNDER THESE SUPPLEMENTARY CONTRACTS. 
THE AMOUNT SO PAID ACCRUED DURING THE YEAR AT THE RATE WHICH HAD BEEN
DECLARED BY PETITIONER'S BOARD OF DIRECTORS AT THE BEGINNING OF THAT
YEAR. 

PETITIONER'S ARGUMENT RUNS AS FOLLOWS:  NOTHING IN THE SUPPLEMENTARY
CONTRACTS OR UNDERLYING POLICIES CONDITIONS THE PAYMENT OF EXCESS
INTEREST DIVIDENDS ON THE EXISTENCE OF A SURPLUS.  THE POLICIES AND THE
STATUTES AUTHORIZING THEIR ISSUANCE NEGATIVE THE IDEA THAT THE PAYMENT
OF THESE EXCESS INTEREST DIVIDENDS CONSTITUTE A DISTRIBUTION OF SURPLUS
OR OF EARNINGS OF PRIOR YEARS.  PETITIONER'S DECLARATION AT THE
BEGINNING OF 1933 THAT IT WOULD PAY EXCESS INTEREST DIVIDENDS IN THAT
YEAR AT A SPECIFIC RATE CONSTITUTED AN OFFER.  THOSE WHO ELECTED IN
1933 TO KEEP THE FUNDS ON DEPOSIT, RATHER THAN TO WITHDRAW THE AMOUNTS
OF THE POLICIES WHICH HAD BECOME PAYABLE DURING THE YEAR, ACCEPTED THAT
OFFER.  IT IS REASONABLE TO ASSUME THAT BUT FOR THE DECLARATION AT THE
BEGINNING OF THE YEAR THE NEW SUPPLEMENTARY CONTRACTS WOULD NOT HAVE
BEEN MADE.  IN AT LEAST SOME OF THE CASES WHERE THE FUNDS WERE ALREADY
ON DEPOSIT AT THE BEGINNING OF 1933 THE BENEFICIARIES COULD HAVE
WITHDRAWN THEM ON DEMAND.  BY REFUSING TO EXERCISE THAT RIGHT AND BY
LEAVING THE FUNDS ON DEPOSIT THE BENEFICIARIES ACCEPTED PETITIONER'S
OFFER.  AND, IT IS AGAIN ASSERTED, BUT FOR THE DECLARATION OF EXCESS
INTEREST DIVIDENDS, IT IS REASONABLE TO ASSUME THAT PETITIONER WOULD
NOT HAVE BEEN PERMITTED TO RETAIN AND USE THOSE FUNDS DURING THAT
YEAR.  AS TO FUNDS ON DEPOSIT AT THE BEGINNING OF 1933 AND OVER WHICH
THE BENEFICIARIES HAD NO POWER OF WITHDRAWAL, THE ARGUMENT IS THAT THE
ORIGINAL PROMISE TO PAY THE EXCESS INTEREST DIVIDENDS, THOUGH
CONDITIONAL, WAS A PROMISE TO PAY "INTEREST."  FN3 

WHILE THESE ARE INTERESTING QUESTIONS WHICH ARE PROPOUNDED, THE FACTS
ON WHICH MOST OF THEM TURN WERE NOT DETERMINED BY THE TAX COURT.  ITS
FINDINGS OF FACT DID NOT GO BEYOND THE STIPULATION.  AND IT APPARENTLY
WAS NOT ASKED TO GO FARTHER.  IT BASED ITS RULING ON PENN MUTUAL LIFE
INS. CO. V. COMMISSIONER, SUPRA.  IT MAY BE THAT CUSTOM OR A COURSE OF
DEALING OR OTHER CIRCUMSTANCES WOULD WARRANT FINDINGS OF FACT WHICH
WOULD SUPPORT AT LEAST PART OF THE CLAIMED DEDUCTION.  BUT MORE PROOF
IS NEEDED THAN THE PROVISIONS OF THE POLICIES AND THE CONTENTS OF THE
STIPULATION.  IT IS NOT OUR TASK TO DRAW INFERENCES FROM FACTS OR TO
SUPPLEMENT STIPULATED FACTS.  THAT FUNCTION RESTS WITH THE TAX COURT. 
WE MAY MODIFY OR REVERSE THE DECISION OF THE TAX COURT ONLY IF IT IS
"NOT IN ACCORDANCE WITH LAW."  44 STAT. 110, 26 U.S.C. SEC. 1141(C)(1);
WILMINGTON TRUST CO. V. HELVERING, 316 U.S. 164; DOBSON V.
COMMISSIONER, 320 U.S. 489.  WE MUST MAKE OUR DETERMINATION ON THE
RECORD BEFORE US.  IF RELEVANT EVIDENCE WAS OFFERED BEFORE THE TAX
COURT BUT REJECTED BY IT, WE COULD REMAND THE CASE TO IT FOR
APPROPRIATE FINDINGS.  BUT NO SUCH SITUATION IS PRESENTED HERE. 
ACCORDINGLY WE CAN REVERSE THE JUDGMENT BELOW ONLY IF WE CAN SAY ON THE
BASIS OF THE PROVISIONS OF POLICIES AND THE MEAGER STIPULATION THAT THE
EXCESS INTEREST DIVIDENDS WERE "INTEREST" WITHIN THE MEANING OF THE ACT
FN4  AS A MATTER OF LAW. 

THE "USUAL IMPORT" OF THE WORD INTEREST IS "THE AMOUNT WHICH ONE HAS
CONTRACTED TO PAY FOR THE USE OF BORROWED MONEY."  OLD COLONY R. CO. V.
COMMISSIONER, 284 U.S. 552, 560; DEPUTY V. DU PONT, 308 U.S. 488, 498. 
WE CANNOT SAY AS A MATTER OF LAW THAT THE EXCESS INTEREST DIVIDENDS
FALL WITHIN THAT CATEGORY.  THEY APPEAR TO BE AMOUNTS WHICH MAY BE
DECLARED OR WITHHELD AT THE PLEASURE OF THE BOARD OF DIRECTORS.  AN
OBLIGATION TO PAY MAY OF COURSE ARISE AFTER THE DECLARATION, THE SAME
AS IN CASE OF DIVIDENDS ON STOCK.  BUT AN OBLIGATION TO PAY DECLARED
DIVIDENDS ON STOCK WOULD HARDLY QUALIFY AS "INTEREST" WITHIN THE
MEANING OF THE ACT.  THE ANALOGY OF COURSE IS NOT PERFECT, AS THESE
EXCESS INTEREST DIVIDENDS MAY NOT BE PAYABLE FROM SURPLUS OR EARNINGS
OF PRIOR YEARS AND THE OBLIGATION TO PAY THE PRINCIPAL AMOUNT UNDER
EACH OPTION WAS ABSOLUTE.  YET PAYMENTS MADE WHOLLY AT THE DISCRETION
OF THE COMPANY HAVE A DEGREE OF CONTINGENCY WHICH THE NOTION OF
"INTEREST" ORDINARILY LACKS.  IF WE EXPANDED THE MEANING OF THE TERM TO
INCLUDE THESE EXCESS INTEREST DIVIDENDS, WE WOULD INDEED RELAX THE
STRICT RULE OF CONSTRUCTION WHICH HAS OBTAINED IN CASE OF DEDUCTIONS
UNDER THE VARIOUS REVENUE ACTS.  NEW COLONIAL CO. V. HELVERING, 292
U.S. 435, 440; DEPUTY V. DU PONT, SUPRA, P. 493.  APPROPRIATE FINDINGS
OF FACT MIGHT WELL BRING SUCH PAYMENTS WITHIN THE MEANING OF
"INTEREST," AS FOR EXAMPLE A FINDING THAT THEIR DECLARATION WAS THE
BASIS ON WHICH NEW CONTRACTUAL ENGAGEMENTS WERE MADE.  BUT SUCH IS NOT
THIS CASE.  AFFIRMED. 

FN1  THIS PROVISION OF THE ACT READS IN PART AS FOLLOWS:  "IN THE
CASE OF A LIFE INSURANCE COMPANY THE TERM 'NET INCOME' MEANS THE GROSS
INCOME LESS  ...  ALL INTEREST PAID OR ACCRUED WITHIN THE TAXABLE YEAR
ON ITS INDEBTEDNESS" WITH EXCEPTIONS NOT RELEVANT HERE. 

FN2  THE OTHER TYPES OF OPTIONAL SETTLEMENTS INVOLVED HERE ARE
INSTALMENT OPTIONS FOR A FIXED PERIOD AND INSTALMENT OPTIONS IN A FIXED
AMOUNT. 

FN3  THE AMOUNT OF FUNDS IN EACH OF THESE THREE CATEGORIES DOES NOT
APPEAR, THOUGH PETITIONER HAS OFFERED ITS ROUGH ESTIMATES. 

FN4  SEC. 163(A) OF THE REVENUE ACT OF 1942, 56 STAT. 798, 868,
INCLUDES WITHIN THE DEFINITION OF "INTEREST PAID" THE FOLLOWING:  "ALL
AMOUNTS IN THE NATURE OF INTEREST, WHETHER OR NOT GUARANTEED, PAID
WITHIN THE TAXABLE YEAR ON INSURANCE OR ANNUITY CONTRACTS (OR CONTRACTS
ARISING OUT OF INSURANCE OR ANNUITY CONTRACTS) WHICH DO NOT INVOLVE, AT
THE TIME OF PAYMENT, LIFE, HEALTH, OR ACCIDENT CONTINGENCIES."  THE
SENATE REPORT POINTS OUT THAT THIS PROVISION WAS DESIGNED TO INCLUDE
BOTH GUARANTEED INTEREST AND EXCESS INTEREST DIVIDENDS.  S. REP. NO.
1631, 77TH CONG., 2D SESS., PP. 146-147. 
..END :




NORTON V. WARNER CO., 321 U.S. 565 


NO. 362.  ARGUED FEBRUARY 28, 29, 1944.  - DECIDED MARCH 27, 1944.  -
137 F.2D 57, AFFIRMED. 


1.  ON REVIEW UNDER SEC. 21(B) OF THE LONGSHOREMEN'S & HARBOR WORKERS'
COMPENSATION ACT, THE COURT MAY NOT SET ASIDE A COMPENSATION AWARD
DEEMED CONTRARY TO THE WEIGHT OF THE EVIDENCE, BUT MAY SET AN AWARD
ASIDE ONLY FOR ERROR OF LAW.  P. 568. 

2.  A BARGE, THOUGH WITHOUT MOTIVE POWER, IS A VESSEL WITHIN THE
MEANING OF THE LONGSHOREMEN'S & HARBOR WORKERS' COMPENSATION ACT, SINCE
IT IS A MEANS OF TRANSPORTATION BY WATER.  P. 571. 

3.  UPON THE FACTS OF THIS CASE, HELD THAT A BARGEMAN - THOUGH THE
BARGE WHICH HE TENDED WAS WITHOUT MOTIVE POWER AND THOUGH HE WAS THE
SOLE EMPLOYEE ABOARD - WAS A "MEMBER OF A CREW" WITHIN THE MEANING OF
THE LONGSHOREMEN'S & HARBOR WORKERS' COMPENSATION ACT AND EXCLUDED FROM
THE COVERAGE OF THAT ACT BY SECS. 2(3) AND 3(A)(1) THEREOF.  P. 571. 

NORTON, DEPUTY COMMISSIONER FOR THE THIRD COMPENSATION DISTRICT, V.
WARNER COMPANY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 320 U.S. 729, TO REVIEW THE REVERSAL OF A JUDGMENT, 45
F.SUPP.  835, WHICH DISMISSED A SUIT TO SET ASIDE AN AWARD OF
COMPENSATION UNDER THE LONGSHOREMEN'S & HARBOR WORKERS' COMPENSATION
ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER NICHOLAS RUSIN, A BARGEMAN
EMPLOYED BY RESPONDENT, IS ENTITLED TO COMPENSATION UNDER THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT (44 STAT. 1424, 33
U.S.C. SEC. 901) FOR INJURIES RECEIVED WHEN A CAPSTAN BAR, WHICH HE WAS
USING TO SHIFT THE BARGE AT A PIER, PULLED OUT AND STRUCK HIM UPON THE
CHEST AND CAUSED HIM TO FALL.  THE ANSWER TURNS ON WHETHER RUSIN WAS A
"MASTER OR MEMBER OF A CREW OF ANY VESSEL."  IF HE WAS, HE IS NOT
ENTITLED TO THE COMPENSATION BECAUSE SUCH PERSONS ARE EXPRESSLY
EXCLUDED FROM THE COVERAGE OF THE ACT BY SEC. 2(3) AND SEC. 3(A)(1). 

THE DEPUTY COMMISSIONER FOUND THAT RUSIN WAS A HARBOR WORKER, NOT A
"MASTER OR MEMBER OF A CREW," AND GRANTED HIM A COMPENSATION AWARD. 
FN1  THE DISTRICT COURT UPHELD THE DEPUTY COMMISSIONER IN A SUIT WHICH
RESPONDDENT-EMPLOYER BROUGHT TO SET ASIDE THE AWARD.  45 F.SUPP.  835. 
THE CIRCUIT COURT OF APPEALS REVERSED.  137 F.2D 57.  THE CASE IS HERE
ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
ASSERTED FAILURE OF THE COURT BELOW TO GIVE PROPER EFFECT TO OUR
DECISION IN SOUTH CHICAGO COAL & DOCK CO. V. BASSETT, 309 U.S. 251. 

THE FACTS, AS FOUND BY THE DEPUTY COMMISSIONER AND AMPLIFIED BY
ADDITIONAL EVIDENCE ADDUCED BEFORE THE DISTRICT COURT, ARE NOT IN
DISPUTE.  RUSIN WAS EMPLOYED AS A BOATMAN ON A BARGE WHICH AT THE TIME
OF THE INJURY WAS AFLOAT ON THE NAVIGABLE WATERS OF THE UNITED STATES. 
THE BARGE HAD NO MOTIVE POWER OF ITS OWN AND WAS MOVED EITHER BY TOWING
OR, FOR SHORTER DISTANCES, BY THE WINDING UP OF A CABLE BY MEANS OF A
CAPSTAN OPERATED BY HAND.  THE BARGE, WHICH WAS DOCUMENTED AS A VESSEL
OF THE UNITED STATES, NEVER WENT TO SEA BUT WAS CONFINED IN ITS
OPERATION TO WATERS WITHIN A RADIUS OF THIRTY MILES OF PHILADELPHIA. 
RUSIN WAS EMPLOYED UNDER A UNION CONTRACT WITH RESPONDENT WHICH STATED
THAT ALL BARGEMEN ASSIGNED TO SPECIFIC BARGES IN ACTIVE OPERATION WERE
TO BE PAID A MONTHLY SALARY OF $80 AND WERE TO BE PROVIDED WITH
QUARTERS.  IT ALSO STATED THAT THAT COMPENSATION WAS "FOR ALL WORK
PERFORMED BY BARGEMEN IN THE OPERATION OF HIS OWN VESSEL" AND THAT THE
RATES PROVIDED WERE "BASED UPON ALL SERVICES AND TIME REQUIRED TO
SAFEGUARD AND OPERATE THE BARGE FLEET, INCLUDING NECESSARY PUMPING,
WATCHING, OR OTHER EMERGENCY DUTIES ON SUNDAYS AND HOLIDAYS."  RUSIN
WAS CONTINUOUSLY ABOARD.  HE BOUGHT HIS OWN MEALS AND LIVED, ATE, AND
SLEPT ON THE BARGE.  WHEN HE WORKED ON ANY OTHER BOAT, HE RECEIVED
WAGES AT AN HOURLY RATE, IN ADDITION TO THE MONTHLY SALARY.  RUSIN HAD
LITTLE EXPERIENCE AS A SEAMAN EXCEPT THAT WHICH HE OBTAINED AS A
BARGEMAN.  HIS DUTIES CONSISTED OF TAKING GENERAL CARE OF THE BARGE. 
THEY INCLUDED TAKING CARE OF THE LINES AT DOCKS, TIGHTENING OR
SLACKENING THEM AS NECESSARY; REPAIRING LEAKS; PUMPING OUT THE BARGE;
TAKING LINES FROM TUGS; RESPONDING TO WHISTLES FROM THE TUGS; PUTTING
OUT NAVIGATIONAL LIGHTS AND SIGNALS; TAKING ORDERS FROM THE TUGBOAT
WHEN BEING TOWED; MOVING THE BARGE AT PIERS BY THE CAPSTAN.  HE COULD
NOT SET THE COURSE OR CONTROL OR CHANGE IT AT ANY TIME.  HE WAS SUBJECT
TO ORDERS OF RESPONDENT'S MARINE SUPERINTENDENT EXCEPT WHEN IN TOW, AT
WHICH TIME HE WAS SUBJECT TO THE CONTROL OF THE TUGBOAT CAPTAIN.  BUT
HE HAD NO DUTIES IN CONNECTION WITH THE HANDLING OF CARGO AND NO SHORE
DUTIES.  AT THE TIME OF THE INJURY HE WAS THE SOLE PERSON ABOARD OR
EMPLOYED UPON THE BARGE. 

SEC. 19(A) OF THE ACT GIVES THE DEPUTY COMMISSIONER "FULL POWER AND
AUTHORITY TO HEAR AND DETERMINE ALL QUESTIONS IN RESPECT OF" CLAIMS FOR
COMPENSATION.  AND SEC. 21(B) GIVES THE FEDERAL DISTRICT COURTS POWER
TO SUSPEND OR SET ASIDE, IN WHOLE OR IN PART, COMPENSATION ORDERS IF
"NOT IN ACCORDANCE WITH LAW."  IN CONSIDERING THOSE PROVISIONS OF THE
ACT IN THE BASSETT CASE, WE HELD THAT THE DISTRICT COURT WAS NOT
WARRANTED IN SETTING ASIDE SUCH AN ORDER BECAUSE THE COURT WOULD WEIGH
OR APPRAISE THE EVIDENCE DIFFERENTLY.  THE DUTY OF THE DISTRICT COURT,
WE SAID, WAS TO GIVE THE AWARD EFFECT, "IF THERE WAS EVIDENCE TO
SUPPORT IT."  309 U.S. AT 258.  AND WE STATED THAT THE FINDINGS OF THE
DEPUTY COMMISSIONER WERE CONCLUSIVE EVEN THOUGH THE EVIDENCE PERMITTED
CONFLICTING INFERENCES.  ID. P. 260.  AND SEE PARKER V. MOTOR BOAT
SALES, 314 U.S. 244, 246.  THIS STATEMENT OF THE FINALITY TO BE
ACCORDED FINDINGS OF THE DEPUTY COMMISSIONER UNDER THE ACT WAS NOT
NEW.  IT HAD BEEN STATED IN SUBSTANTIALLY SIMILAR TERMS IN VOEHL V.
INDEMNITY INSURANCE CO., 288 U.S. 162, 166, AND IN DEL VECCHIO V.
BOWERS, 296 U.S. 280, 287.  THE RULE FASHIONED BY THESE CASES FOLLOWED
THE DESIGN OF THE ACT OF ENCOURAGING PROMPT AND EXPEDITIOUS
ADJUDICATION OF CLAIMS ARISING UNDER IT.  FN2  BY GIVING A LARGE DEGREE
OF FINALITY TO ADMINISTRATIVE DETERMINATIONS, CONTESTS AND DELAYS,
WHICH EMPLOYEES COULD ILL AFFORD AND WHICH MIGHT DEPRIVE THE ACT OF
MUCH OF ITS BENEFICENT EFFECT, WERE DISCOURAGED.  THUS IT IS THAT THE
JUDICIAL REVIEW CONFERRED BY SEC. 21(B) DOES NOT GIVE AUTHORITY TO THE
COURTS TO SET ASIDE AWARDS BECAUSE THEY ARE DEEMED TO BE AGAINST THE
WEIGHT OF THE EVIDENCE.  MORE IS REQUIRED.  THE ERROR MUST BE ONE OF
LAW, SUCH AS THE MISCONSTRUCTION OF A TERM OF THE ACT. 

WE THINK THE AWARD GRANTED BY THE DEPUTY COMMISSIONER HAD SUCH AN
INFIRMITY.  FN3 

IF THE AWARD WERE TO STAND, THERE WOULD BE BROUGHT WITHIN THE ACT A
GROUP OF WORKERS WHOM WE DO NOT BELIEVE CONGRESS INTENDED TO INCLUDE. 
THE SENATE REPORT MAKES CLEAR THAT "THE PURPOSE OF THIS BILL IS TO
PROVIDE FOR COMPENSATION, IN THE STEAD OF LIABILITY, FOR A CLASS OF
EMPLOYEES COMMONLY KNOWN AS 'LONGSHOREMEN.'  THESE MEN ARE MAINLY
EMPLOYED IN LOADING, UNLOADING, REFITTING, AND REPAIRING SHIPS."  S.
REP. NO. 973, 69TH CONG., 1ST SESS., P. 16.  WE REVIEWED THE HISTORY OF
THE ACT IN THE BASSETT CASE AND IN THE PARKER CASE, AND MORE RECENTLY
IN DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249.  AS WE NOTED IN THOSE
CASES, THE ACT WAS ADOPTED TO MEET THE DIFFICULTIES ENGENDERED BY THE
DECISION IN SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205.  AND SEE
KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149; WASHINGTON V. W.C.
DAWSON & CO., 264 U.S. 219.  THAT LINE OF CASES CARVED OUT A DOMAIN IN
WHICH, ACCORDING TO A MAJORITY OF THIS COURT, STATE LAW COULD NOT
CONSTITUTIONALLY AFFORD COMPENSATION TO MARITIME EMPLOYEES.  IT WAS TO
FILL THAT GAP IN THE SYSTEM OF WORKMEN'S COMPENSATION THAT THE PRESENT
ACT WAS PASSED.  S. REP. NO. 973, SUPRA, P. 16.  BUT AS WE POINTED OUT
IN THE BASSETT CASE (309 U.S. PP. 256-257) THE EFFORT TO BRING A MASTER
AND MEMBERS OF A CREW OF A VESSEL UNDER THE ACT WAS SUCCESSFULLY
OPPOSED BY THE REPRESENTATIVES OF MARITIME EMPLOYEES.  SEE NOGUEIRA V.
NEW YORK, N.H. & H.R. CO., 281 U.S. 128, 136; WARNER V. GOLTRA, 293
U.S. 155, 159-160.  AND THE MARITIME UNIONS WHICH APPEARED AS AMICI
CURIAE IN THE PRESENT CASE EMPHASIZE THE IMPORTANCE OF THAT EXCEPTION. 
THE LIABILITY OF AN EMPLOYER UNDER THE ACT IS EXCLUSIVE.  SEC. 5.  ON
THE OTHER HAND, THOSE WHO ARE NOT COVERED BY IT BUT WHO ARE PROTECTED
BY MARITIME LAW ARE ENTITLED TO MAINTENANCE AND CURE, A REMEDY NOT
RESTRICTED TO ACCIDENTS.  AS WE SAID IN AGUILAR V. STANDARD OIL CO.,
318 U.S. 724, 732, "IN THIS RESPECT IT IS A BROADER LIABILITY THAN THAT
IMPOSED BY MODERN WORKMEN'S COMPENSATION STATUTES."  MOREOVER, SEAMEN
MAY SUE UNDER THE JONES ACT (41 STAT. 988, 1007, 46 U.S.C. SEC. 688)
FOR INJURIES IN THE COURSE OF THEIR EMPLOYMENT.  AND IN SUCH ACTIONS
ASSUMPTION OF RISK IS NO DEFENSE.  SOCONY-VACUUM OIL CO. V. SMITH, 305
U.S. 424.  OR SUIT MAY BE BROUGHT IN ADMIRALTY FOR INJURIES CAUSED BY
UNSEAWORTHINESS OF THE VESSEL OR ITS APPURTENANT APPLIANCES AND
EQUIPMENT.  MAHNICH V. SOUTHERN STEAMSHIP CO., 321 U.S. 96, AND CASES
CITED.  THESE ARE BASIC RIGHTS.  THE MARITIME UNIONS APPEARING IN THE
PRESENT CASE MAINTAIN THAT THOSE REMEDIES ARE INDEED SUPERIOR TO THE
RELIEF AFFORDED BY THE LONGSHOREMEN'S AND HARBOR WORKERS' ACT.  WHETHER
THEY ARE MORE DESIRABLE THAN A SYSTEM OF COMPENSATION IS NOT FOR US TO
DETERMINE.  BUT WHERE CONGRESS HAS PROVIDED THAT THOSE BASIC RIGHTS
SHALL NOT BE WITHHELD FROM A CLASS OR CLASSES OF MARITIME EMPLOYEES IT
IS OUR DUTY ON JUDICIAL REVIEW TO RESPECT THE COMMAND AND NOT PERMIT
THE EXEMPTION TO BE NARROWED WHETHER BY ADMINISTRATIVE CONSTRUCTION OR
OTHERWISE. 

IF A BARGE WITHOUT MOTIVE POWER OF ITS OWN CAN HAVE A "CREW" WITHIN
THE MEANING OF THE ACT AND IF A "CREW" MAY CONSIST OF ONE MAN, WE DO
NOT SEE WHY RUSIN DOES NOT MEET THE REQUIREMENTS.  A BARGE IS A VESSEL
WITHIN THE MEANING OF THE ACT EVEN WHEN IT HAS NO MOTIVE POWER OF ITS
OWN, SINCE IT IS A MEANS OF TRANSPORTATION ON WATER.  FN4  SEE THE
GENERAL CASS, FED. CAS. NO. 5,307; SEABROOK V. RAFT, 40 F. 596; IN RE
EASTERN DREDGING CO., 138 F. 942; LOS ANGELES V. UNITED DREDGING CO.,
14 F.2D 364; THE ROBERT W. PARSONS, 191 U.S. 17, 30; ELLIS V. UNITED
STATES, 206 U.S. 246, 259.  A CREW IS GENERALLY "EQUIVALENT TO SHIP'S
COMPANY" AS MR. JUSTICE STORY SAID IN UNITED STATES V. WINN, FED. CAS.
NO. 16,740, 28 FED. CAS. 733, 737.  BUT WE POINTED OUT IN THE BASSETT
CASE THAT THE WORD DOES NOT HAVE "AN ABSOLUTELY UNVARYING LEGAL
SIGNIFICANCE."  309 U.S. AT P. 258.  WE KNOW OF NO REASON WHY A PERSON
IN SOLE CHARGE OF A VESSEL ON A VOYAGE IS NOT AS MUCH A "MEMBER OF THE
CREW" AS HE WOULD BE IF THERE WERE TWO OR MORE ABOARD.  WE SAID IN THE
BASSETT CASE THAT THE TERM "CREW" EMBRACED THOSE "WHO ARE NATURALLY AND
PRIMARILY ON BOARD" THE VESSEL "TO AID IN HER NAVIGATION."  ID., P.
260.  BUT NAVIGATION IS NOT LIMITED TO "PUTTING OVER THE HELM."  IT
ALSO EMBRACES DUTIES ESSENTIAL FOR OTHER PURPOSES OF THE VESSEL. 
CERTAINLY MEMBERS OF THE CREW ARE NOT CONFINED TO THOSE WHO CAN "HAND,
REEF AND STEER."  JUDGE HOUGH POINTED OUT IN THE BUENA VENTURA, 243 F.
797, 799, THAT "EVERY ONE IS ENTITLED TO THE PRIVILEGE OF A SEAMAN WHO,
LIKE SEAMEN, AT ALL TIMES CONTRIBUTES TO THE LABORS ABOUT THE OPERATION
AND WELFARE OF THE SHIP WHEN SHE IS UPON A VOYAGE."  AND SEE THE MINNA,
11 F. 759; DISBROW V. WALSH BROS., 36 F. 607, 608(BARGEMAN).  WE THINK
THAT "CREW" MUST HAVE AT LEAST AS BROAD A MEANING UNDER THE ACT.  FN5
FOR IT IS PLAIN FROM THE AMENDMENT EXEMPTING A "MASTER OR MEMBER OF A
CREW" THAT SHIP'S COMPANY WAS NOT BROUGHT UNDER THE ACT.  AND WE ARE
TOLD BY THE SENATE REPORT, AS ALREADY NOTED, THAT THE PURPOSE OF THE
LEGISLATION WAS TO PROVIDE COMPENSATION FOR THOSE WHO "ARE MAINLY
EMPLOYED IN LOADING, UNLOADING, REFITTING, AND REPAIRING SHIPS."  S.
REP. NO. 973, SUPRA. 

RUSIN, UNLIKE THE EMPLOYEE IN THE BASSETT CASE,  FN6  DID NO WORK OF
THE LATTER VARIETY.  HE PERFORMED ON THE BARGE FUNCTIONS OF THE SAME
QUALITY AS THOSE PERFORMED IN THE MAINTENANCE AND OPERATION OF MANY
VESSELS.  HIS WERE INDEED DIFFERENT FROM THE FUNCTIONS OF ANY OTHER
"CREW" ONLY AS THEY WERE MADE SO BY THE NATURE OF THE VESSEL AND ITS
NAVIGATIONAL REQUIREMENTS.  THE CONTRACT UNDER WHICH HE WAS EMPLOYED
STATED THAT THE COMPENSATION WAS "BASED UPON ALL SERVICES AND TIME
REQUIRED TO SAFEGUARD AND OPERATE THE BARGE FLEET."  THE SERVICES
RENDERED CONFORMED TO THAT STANDARD AND NO OTHER.  RUSIN MOREOVER HAD
THAT PERMANENT ATTACHMENT TO THE VESSEL WHICH COMMONLY CHARACTERIZES A
CREW.  SEE A.L. MECHLING BARGE LINE V. BASSETT, 119 F.2D 995. 

WE CONCLUDE THAT ONLY BY A DISTORTED DEFINITION OF THE WORD "CREW" AS
USED IN THE ACT COULD RUSIN BE RESTRICTED TO THE REMEDY WHICH IT
AFFORDS AND EXCLUDED FROM RECOVERY UNDER THE JONES ACT OR BE DENIED
RELIEF IN ADMIRALTY.  SEE MARYLAND CASUALTY CO. V. LAWSON, 94 F.2D 190;
LOVERICH V. WARNER CO., 118 F.2D 690; CANTEY V. MCLAIN LINE, 32
F.SUPP.  1023, 114 F.2D 1017, WHICH WE REVERSED IN 312 U.S. 667. 
AFFIRMED. 

FN1  CF. THE FINDING OF THE DEPUTY COMMISSIONER IN DIOMEDE V. LOWE,
14 F.SUPP.  380; 87 F.2D 296. 

FN2  SEC. 14(B) MAKES THE FIRST INSTALMENT OF COMPENSATION DUE ON THE
FOURTEENTH DAY AFTER THE EMPLOYER HAS KNOWLEDGE OF THE INJURY OR
DEATH.  SEC. 14(F) PROVIDES THAT IF COMPENSATION, PAYABLE UNDER AN
AWARD, IS NOT PAID WITHIN TEN DAYS AFTER IT IS DUE, A PENALTY OF TWENTY
PER CENT IS ADDED.  SEC. 18 PROVIDES FOR THE ISSUANCE BY THE DEPUTY
COMMISSIONER OF A SUPPLEMENTARY ORDER WHEN AN EMPLOYER IS IN DEFAULT OF
PAYMENT OF COMPENSATION DUE UNDER AN AWARD FOR A PERIOD OF THIRTY
DAYS.  ON SUCH AN ORDER JUDGMENT AND EXECUTION MAY BE OBTAINED IN THE
FEDERAL DISTRICT COURTS, THE SUPPLEMENTARY ORDER OF THE DEPUTY
COMMISSIONER BEING FINAL.  ANY WAIVER OF THE RIGHT TO COMPENSATION
UNDER THE ACT IS MADE INVALID BY SEC. 15(B).  AGREEMENTS FOR
COMPENSATION NOT MADE IN ACCORDANCE WITH THE ACT ARE OUTLAWED.  SECS.
15(A), 16.  LIMITATIONS ON THE GRANTING OF INTERLOCUTORY INJUNCTIONS
STAYING PAYMENT OF COMPENSATION WHILE AN AWARD IS BEING CONTESTED ARE
CONTAINED IN SEC. 21(B).  AND THE UNITED STATES ATTORNEY IS DIRECTED TO
APPEAR ON BEHALF OF THE DEPUTY COMMISSIONER AND DEFEND COMPENSATION
ORDERS.  45 STAT. 490, 33 U.S.C. SEC. 921A.    FN3  IN DAVIS V.
DEPARTMENT OF LABOR, 317 U.S. 249, WE WERE DEALING WITH THE PROBLEM OF
DETERMINING WHETHER A SO-CALLED HARBOR WORKER COULD BE COMPENSATED
UNDER A STATE ACT OR MUST COME UNDER THE LONGSHOREMEN'S AND HARBOR
WORKERS' ACT.  THAT PROBLEM WAS EMBARRASSED BY THE FACT THAT THE LINE
BETWEEN FEDERAL AND STATE DOMAIN HAD BEEN DRAWN WITH REFERENCE TO THE
RULE OF THE JENSEN CASE.  THERE ARE NO SUCH COMPLICATIONS HERE.  IN
THIS CASE THE LINE IS ONE WHICH CONGRESS HAS DRAWN BETWEEN TWO MUTUALLY
EXCLUSIVE FEDERAL SYSTEMS.  THE RISK OF EMPLOYEES CHOOSING THE WRONG
REMEDY HAS BEEN ANTICIPATED BY CONGRESS AND AT LEAST PARTIALLY
AVOIDED.  FOR SEC. 13(D) PROVIDES THAT WHERE RECOVERY IS DENIED TO ANY
PERSON IN A SUIT BROUGHT AT LAW OR IN ADMIRALTY TO RECOVER DAMAGES ON
THE GROUND THAT HIS REMEDY WAS UNDER THE LONGSHOREMEN'S AND HARBOR
WORKERS' ACT THE LIMITATION OF TIME FOR MAKING APPLICATION FOR AN AWARD
BEGINS TO RUN "ONLY FROM THE DATE OF TERMINATION OF SUCH SUIT." 

FN4  "VESSEL" IS DEFINED IN REV. STAT. SEC. 3, 1 U.S.C. SEC. 3, TO
INCLUDE "EVERY DESCRIPTION OF WATERCRAFT OR OTHER ARTIFICIAL
CONTRIVANCE USED, OR CAPABLE OF BEING USED, AS A MEANS OF
TRANSPORTATION ON WATER." 

FN5  "SEAMAN" AS USED IN A PARTICULAR CONTEXT MAY OF COURSE HAVE A
BROADER MEANING THAN "CREW."  INTERNATIONAL STEVEDORING CO. V. HAVERTY,
272 U.S. 50.  AND SEE CARUMBO V. CAPE COD S.S. CO., 123 F.2D 991. 

FN6  AND SEE MOORE DRY DOCK CO. V. PILLSBURY, 100 F.2D 245; HENDERSON
V. JONES, 110 F.2D 952. 

MR. JUSTICE ROBERTS CONCURS IN THE RESULT. 
..END :










FOLLETT V. MCCORMICK, 321 U.S. 573 


NO. 486.  ARGUED FEBRUARY 11, 1944.  - DECIDED MARCH 27, 1944.  -
REVERSED. 


A MUNICIPAL ORDINANCE IMPOSING A FLAT LICENSE TAX ON BOOK AGENTS, AS
APPLIED TO AN EVANGELIST OR PREACHER WHO DISTRIBUTES RELIGIOUS TRACTS
IN HIS HOME TOWN AND WHO MAKES HIS LIVELIHOOD FROM SUCH ACTIVITY, HELD
VIOLATIVE OF THE FREEDOM OF WORSHIP GUARANTEED BY THE FIRST AND
FOURTEENTH AMENDMENTS.  P. 576. 

FOLLETT V. TOWN OF MCCORMICK. 

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. 

APPEAL FROM THE AFFIRMANCE OF A CONVICTION FOR VIOLATION OF A
MUNICIPAL ORDINANCE PRESCRIBING AN OCCUPATIONAL LICENSE TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

APPELLANT WAS CONVICTED OF VIOLATING AN ORDINANCE OF THE TOWN OF
MCCORMICK, SOUTH CAROLINA WHICH PROVIDED:  "  ...  THE FOLLOWING
LICENSE ON BUSINESS, OCCUPATION AND PROFESSIONS TO BE PAID BY THE
PERSON OR PERSONS CARRYING ON OR ENGAGED IN SUCH BUSINESS, OCCUPATION
OR PROFESSIONS WITHIN THE CORPORATE LIMITS OF THE TOWN OF MCCORMICK,
SOUTH CAROLINA:  AGENTS SELLING BOOKS, PER DAY $1.00, PER YEAR
$15.00."  APPELLANT IS A JEHOVAH'S WITNESS AND HAS BEEN CERTIFIED BY
THE WATCH TOWER BIBLE & TRACT SOCIETY AS "AN ORDAINED MINISTER OF
JEHOVAH GOD TO PREACH THE GOSPEL OF GOD'S KINGDOM UNDER CHRIST JESUS." 
HE IS A RESIDENT OF MCCORMICK, SOUTH CAROLINA, WHERE HE WENT FROM HOUSE
TO HOUSE DISTRIBUTING CERTAIN BOOKS.  HE OBTAINED HIS LIVING FROM THE
MONEY RECEIVED; HE HAD NO OTHER SOURCE OF INCOME.  HE CLAIMED THAT HE
MERELY OFFERED THE BOOKS FOR A "CONTRIBUTION."  BUT THERE WAS EVIDENCE
THAT HE "OFFERED TO AND DID SELL THE BOOKS."  ADMITTEDLY HE HAD NO
LICENSE FROM THE TOWN AND REFUSED TO OBTAIN ONE.  HE MOVED FOR A
DIRECTED VERDICT OF NOT GUILTY AT THE CLOSE OF THE EVIDENCE, CLAIMING
THAT THE ORDINANCE RESTRICTED FREEDOM OF WORSHIP IN VIOLATION OF THE
FIRST AMENDMENT WHICH THE FOURTEENTH AMENDMENT MAKES APPLICABLE TO THE
STATES.  THE MOTION WAS OVERRULED AND APPELLANT WAS FOUND GUILTY BY THE
JURY IN THE MAYOR'S COURT.  THAT JUDGMENT WAS AFFIRMED BY THE CIRCUIT
COURT OF GENERAL SESSIONS FOR MCCORMICK COUNTY AND THEN BY THE SUPREME
COURT OF SOUTH CAROLINA.  THE CASE IS HERE ON APPEAL.  JUDICIAL CODE,
SEC. 237(A), 28 U.S.C. SEC. 344(A). 

THE ORDINANCE IN THIS CASE IS IN ALL MATERIAL RESPECTS THE SAME AS
THE ONES INVOLVED IN JONES V. OPELIKA, 319 U.S. 103, AND MURDOCK V.
PENNSYLVANIA, 319 U.S. 105.  IN THOSE CASES, THE TAX IMPOSED WAS ALSO A
LICENSE TAX - "A FLAT TAX IMPOSED ON THE EXERCISE OF A PRIVILEGE
GRANTED BY THE BILL OF RIGHTS" AND THEREFORE AN UNCONSTITUTIONAL
EXACTION.  MURDOCK V. PENNSYLVANIA, SUPRA, P. 113.  IN THOSE CASES
MEMBERS OF JEHOVAH'S WITNESSES HAD ALSO BEEN FOUND GUILTY OF "PEDDLING"
OR "SELLING" LITERATURE WITHIN THE MEANING OF THE LOCAL ORDINANCES. 
BUT SINCE THEY WERE ENGAGED IN A "RELIGIOUS" RATHER THAN A "COMMERCIAL"
VENTURE, WE HELD THAT THE CONSTITUTIONALITY OF THE ORDINANCES MIGHT NOT
BE MEASURED BY THE STANDARDS GOVERNING THE SALES OF WARES AND
MERCHANDISE BY HUCKSTERS AND OTHER MERCHANTS.  "FREEDOM OF PRESS,
FREEDOM OF SPEECH, FREEDOM OF RELIGION ARE IN A PREFERRED POSITION." 
MURDOCK V. PENNSYLVANIA, SUPRA, P. 115.  WE EMPHASIZED THAT THE
"INHERENT VICE AND EVIL" OF THE FLAT LICENSE TAX IS THAT "IT RESTRAINS
IN ADVANCE THOSE CONSTITUTIONAL LIBERTIES" AND "INEVITABLY TENDS TO
SUPPRESS THEIR EXERCISE."  P. 114. 

THE SUPREME COURT OF SOUTH CAROLINA RECOGNIZED THOSE PRINCIPLES BUT
DISTINGUISHED THE PRESENT CASE FROM THE MURDOCK AND OPELIKA DECISIONS. 
IT POINTED OUT THAT THE APPELLANT WAS NOT AN ITINERANT BUT WAS A
RESIDENT OF THE TOWN WHERE THE CANVASSING TOOK PLACE, AND THAT THE
PRINCIPLE OF THE MURDOCK DECISION WAS APPLICABLE ONLY TO ITINERANT
PREACHERS.  IT STATED, MOREOVER, THAT APPELLANT EARNED HIS LIVING "BY
THE SALE OF BOOKS," THAT HIS "OCCUPATION WAS THAT OF SELLING BOOKS AND
NOT THAT OF COLPORTEUR," THAT "THE SALES PROVEN WERE MORE COMMERCIAL
THAN RELIGIOUS."  IT CONCLUDED THAT THE "LICENSE WAS REQUIRED FOR THE
SELLING OF BOOKS, NOT FOR THE SPREADING OF RELIGION."  FN1 

WE POINTED OUT IN THE MURDOCK CASE THAT THE DISTINCTION BETWEEN
"RELIGIOUS" ACTIVITY AND "PURELY COMMERCIAL" ACTIVITY WOULD AT TIMES BE
"VITAL" IN DETERMINING THE CONSTITUTIONALITY OF FLAT LICENSE TAXES SUCH
AS THESE.  319 U.S. P. 110.  BUT WE NEED NOT DETERMINE HERE BY WHAT
TESTS THE EXISTENCE OF A "RELIGION" OR THE "FREE EXERCISE" THEREOF IN
THE CONSTITUTIONAL SENSE MAY BE ASCERTAINED OR MEASURED.  FOR THE
SUPREME COURT OF SOUTH CAROLINA CONCEDED THAT "THE BOOK IN QUESTION
FN2  IS A RELIGIOUS BOOK"; AND IT CONCLUDED "WITHOUT DIFFICULTY" THAT
"ITS PUBLICATION AND DISTRIBUTION COME WITHIN THE WORDS, 'EXERCISE OF
RELIGION,' AS THEY ARE USED IN THE CONSTITUTION."  WE MUST ACCORDINGLY
ACCEPT AS BONA FIDE APPELLANT'S ASSERTION THAT HE WAS "PREACHING THE
GOSPEL" BY GOING "FROM HOUSE TO HOUSE PRESENTING THE GOSPEL OF THE
KINGDOM IN PRINTED FORM."  THUS WE HAVE QUITE A DIFFERENT CASE FROM
THAT OF A MERCHANT WHO SELLS BOOKS AT A STAND OR ON THE ROAD. 

THE QUESTION IS THEREFORE A NARROW ONE.  IT IS WHETHER A FLAT LICENSE
TAX AS APPLIED TO ONE WHO EARNS HIS LIVELIHOOD AS AN EVANGELIST OR
PREACHER IN HIS HOME TOWN IS CONSTITUTIONAL.  IT WAS NOT CLEAR FROM THE
RECORDS IN THE OPELIKA AND MURDOCK CASES TO WHAT EXTENT, IF ANY, THE
JEHOVAH'S WITNESSES THERE INVOLVED WERE DEPENDENT ON "SALES" OR
"CONTRIBUTIONS" FOR A LIVELIHOOD.  BUT WE DID STATE THAT AN "ITINERANT
EVANGELIST" DID NOT BECOME "A MERE BOOK AGENT BY SELLING THE BIBLE OR
RELIGIOUS TRACTS TO HELP DEFRAY HIS EXPENSES OR TO SUSTAIN HIM."  319
U.S. P. 111.  FREEDOM OF RELIGION IS NOT MERELY RESERVED FOR THOSE WITH
A LONG PURSE.  PREACHERS OF THE MORE ORTHODOX FAITHS ARE NOT ENGAGED IN
COMMERCIAL UNDERTAKINGS BECAUSE THEY ARE DEPENDENT ON THEIR CALLING FOR
A LIVING.  WHETHER NEEDY OR AFFLUENT, THEY AVAIL THEMSELVES OF THE
CONSTITUTIONAL PRIVILEGE OF A "FREE EXERCISE" OF THEIR RELIGION WHEN
THEY ENTER THE PULPIT TO PROCLAIM THEIR FAITH.  THE PRIEST OR PREACHER
IS AS FULLY PROTECTED IN HIS FUNCTION AS THE PARISHIONERS ARE IN THEIR
WORSHIP.  A FLAT LICENSE TAX ON THAT CONSTITUTIONAL PRIVILEGE WOULD BE
AS ODIOUS AS THE EARLY "TAXES ON KNOWLEDGE" WHICH THE FRAMERS OF THE
FIRST AMENDMENT SOUGHT TO OUTLAW.  GROSJEAN V. AMERICAN PRESS CO., 297
U.S. 233, 245-248.  A PREACHER HAS NO LESS A CLAIM TO THAT PRIVILEGE
WHEN HE IS NOT AN ITINERANT.  WE REFERRED TO THE ITINERANT NATURE OF
THE ACTIVITY IN THE MURDOCK CASE MERELY IN EMPHASIS OF THE PROHIBITIVE
CHARACTER OF THE LICENSE TAX AS SO APPLIED.  ITS UNCONSTITUTIONALITY
WAS NOT DEPENDENT ON THAT CIRCUMSTANCE.  THE EXACTION OF A TAX AS A
CONDITION TO THE EXERCISE OF THE GREAT LIBERTIES GUARANTEED BY THE
FIRST AMENDMENT IS AS OBNOXIOUS (GROSJEAN V. AMERICAN PRESS CO., SUPRA;
MURDOCK V. PENNSYLVANIA, SUPRA) AS THE IMPOSITION OF A CENSORSHIP OR A
PREVIOUS RESTRAINT.  NEAR V. MINNESOTA, 283 U.S. 697.  FOR, TO REPEAT,
"THE POWER TO TAX THE EXERCISE OF A PRIVILEGE IS THE POWER TO CONTROL
OR SUPPRESS ITS ENJOYMENT."  MURDOCK V. PENNSYLVANIA, SUPRA, P. 112. 

BUT IF THIS LICENSE TAX WOULD BE INVALID AS APPLIED TO ONE WHO
PREACHES THE GOSPEL FROM THE PULPIT, THE JUDGMENT BELOW MUST BE
REVERSED.  FOR WE FAIL TO SEE HOW SUCH A TAX LOSES ITS CONSTITUTIONAL
INFIRMITY WHEN EXACTED FROM THOSE WHO CONFINE THEMSELVES TO THEIR OWN
VILLAGE OR TOWN AND SPREAD THEIR RELIGIOUS BELIEFS FROM DOOR TO DOOR OR
ON THE STREET.  THE PROTECTION OF THE FIRST AMENDMENT IS NOT RESTRICTED
TO ORTHODOX RELIGIOUS PRACTICES ANY MORE THAN IT IS TO THE EXPRESSION
OF ORTHODOX ECONOMIC VIEWS.  HE WHO MAKES A PROFESSION OF EVANGELISM IS
NOT IN A LESS PREFERRED POSITION THAN THE CASUAL WORKER. 

THIS DOES NOT MEAN THAT RELIGIOUS UNDERTAKINGS MUST BE SUBSIDIZED. 
THE EXEMPTION FROM A LICENSE TAX OF A PREACHER WHO PREACHES OR A
PARISHIONER WHO LISTENS DOES NOT MEAN THAT EITHER IS FREE FROM ALL
FINANCIAL BURDENS OF GOVERNMENT, INCLUDING TAXES ON INCOME OR
PROPERTY.  WE SAID AS MUCH IN THE MURDOCK CASE.  319 U.S. P. 112.  BUT
TO SAY THAT THEY, LIKE OTHER CITIZENS, MAY BE SUBJECT TO GENERAL
TAXATION DOES NOT MEAN THAT THEY CAN BE REQUIRED TO PAY A TAX FOR THE
EXERCISE OF THAT WHICH THE FIRST AMENDMENT HAS MADE A HIGH
CONSTITUTIONAL PRIVILEGE.  REVERSED. 

FN1  THE COURT ALSO DISTINGUISHED STATE V. MEREDITH, 197 S.C. 351, 15
S.E.2D 678, WHERE A LICENSE TAX STATUTE WAS CONSTRUED TO BE
INAPPLICABLE TO AN ITINERANT MINISTER OF JEHOVAH'S WITNESSES, THE
"SALE" OF LITERATURE BEING "MERELY COLLATERAL TO THE MAIN PURPOSE IN
WHICH HE WAS ENGAGED, WHICH WAS TO PREACH AND TEACH THE TENETS OF HIS
RELIGION."  P. 355. 

FN2  THOUGH APPELLANT DISTRIBUTED MORE THAN ONE TRACT OR BOOK, THE
ONLY ONE BEFORE THE SUPREME COURT OF SOUTH CAROLINA WAS ENTITLED
"CHILDREN."  AS STATED BY THAT COURT, "TESTED BY THE TENETS OF OTHER
FORMS OF THE CHRISTIAN RELIGION WITH WHICH WE ARE FAMILIAR, IT IS FULL
OF HERESIES.  BUT IT PURPORTS TO OFFER A PLAN OF SALVATION OF THE HUMAN
SOUL IN LIFE AFTER DEATH  ...  " 

MR. JUSTICE REED, CONCURRING: 

MY VIEWS ON THE CONSTITUTIONALITY OF ORDINANCES OF THIS TYPE ARE SET
OUT AT LENGTH IN JONES V. OPELIKA, 316 U.S. 584, AND IN A DISSENT ON
THE REHEARING OF THE SAME CASE, 319 U.S. 117.  THESE VIEWS REMAIN
UNCHANGED BUT THEY ARE NOT IN ACCORD WITH THOSE ANNOUNCED BY THE
COURT. 

MY UNDERSTANDING OF THIS COURT'S OPINIONS IN MURDOCK V. PENNSYLVANIA,
319 U.S. 105, AND JONES V. OPELIKA, 319 U.S. 103, IS THAT DISTRIBUTION
OF RELIGIOUS LITERATURE IN RETURN FOR MONEY WHEN DONE AS A METHOD OF
SPREADING THE DISTRIBUTOR'S RELIGIOUS BELIEFS IS AN EXERCISE OF
RELIGION WITHIN THE FIRST AMENDMENT AND THEREFORE IMMUNE FROM
INTERFERENCE BY THE REQUIREMENT OF A LICENSE.  THESE OPINIONS ARE NOW
THE LAW OF THE LAND. 

AS I SEE NO DIFFERENCE IN RESPECT TO THE EXERCISE OF RELIGION BETWEEN
AN ITINERANT DISTRIBUTOR AND ONE WHO REMAINS IN ONE GENERAL
NEIGHBORHOOD OR BETWEEN ONE WHO IS ACTIVE PART TIME AND ANOTHER WHO IS
ACTIVE ALL OF HIS TIME, THERE IS NO OCCASION FOR ME TO STATE AGAIN
VIEWS ALREADY REJECTED BY A MAJORITY OF THE COURT.  CONSEQUENTLY, I
CONCUR IN THE CONCLUSION REACHED IN THE PRESENT CASE. 

MR. JUSTICE MURPHY, CONCURRING: 

WHILE I AM IN COMPLETE ACCORD WITH THE OPINION OF THE COURT, I DESIRE
TO ADD A BRIEF WORD IN LIGHT OF CERTAIN STATEMENTS MADE IN THE
DISSENTING OPINION.  IT IS CLAIMED THAT THE EFFECT OF OUR DECISION IS
TO SUBSIDIZE RELIGION.  BUT THIS IS MERELY A HARSH WAY OF SAYING THAT
TO PROHIBIT THE TAXATION OF RELIGIOUS ACTIVITIES IS TO GIVE SUBSTANCE
TO THE CONSTITUTIONAL RIGHT OF RELIGIOUS FREEDOM. 

IT IS SUGGESTED THAT WE HAVE OPENED THE DOOR TO EXEMPTION OF WEALTHY
RELIGIOUS INSTITUTIONS, LIKE TRINITY CHURCH IN NEW YORK CITY, FROM THE
PAYMENT OF TAXES ON PROPERTY INVESTMENTS FROM WHICH SUPPORT IS DERIVED
FOR RELIGIOUS ACTIVITIES.  IT IS ALSO CHARGED THAT THE DECISION
CONTAINS STARTLING IMPLICATIONS WITH RESPECT TO FREEDOM OF SPEECH AND
THE PRESS.  I AM NEITHER DISTURBED NOR IMPRESSED BY THESE ALLEGATIONS. 
WE ARE NOT CALLED UPON IN THIS CASE TO DEAL WITH THE TAXABILITY OF
INCOME ARISING OUT OF EXTENSIVE HOLDINGS OF COMMERCIAL PROPERTY AND
BUSINESS ACTIVITIES RELATED THERETO.  THERE IS AN OBVIOUS DIFFERENCE
BETWEEN TAXING COMMERCIAL PROPERTY AND INVESTMENTS UNDERTAKEN FOR
PROFIT, WHATEVER USE IS MADE OF THE INCOME, AND LAYING A TAX DIRECTLY
ON AN ACTIVITY THAT IS ESSENTIALLY RELIGIOUS IN PURPOSE AND CHARACTER
OR ON AN EXERCISE OF THE PRIVILEGE OF FREE SPEECH AND FREE
PUBLICATION. 

IT IS WISE TO REMEMBER THAT THE TAXING AND LICENSING POWER IS A
DANGEROUS AND POTENT WEAPON WHICH, IN THE HANDS OF UNSCRUPULOUS OR
BIGOTED MEN, COULD BE USED TO SUPPRESS FREEDOMS AND DESTROY RELIGION
UNLESS IT IS KEPT WITHIN APPROPRIATE BOUNDS. 

SEPARATE OPINION OF MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER, AND
MR. JUSTICE JACKSON. 

THE PRESENT DECISION EXTENDS THE RULE ANNOUNCED IN JONES V. OPELIKA,
319 U.S. 103, AND MURODCK V. PENNSYLVANIA, 319 U.S. 105. 

THE ORDINANCE IN QUESTION IS NOT, IN THE WORDS OF THE FIRST
AMENDMENT, A LAW "PROHIBITING THE FREE EXERCISE" OF RELIGION.  AT THE
OUTSET IT SHOULD BE OBSERVED THAT THE ORDINANCE IS NOT DISCRIMINATORY. 
IT LAYS A TAX ON THE PURSUIT OF OCCUPATIONS BY WHICH PERSONS EARN THEIR
LIVING IN THE TOWN OF MCCORMICK.  IT DOES NOT SINGLE OUT PERSONS
PURSUING ANY GIVEN OCCUPATION AND EXEMPT OTHERS.  IF IT WERE ATTACKED
AS A DENIAL OF THE EQUAL PROTECTION OF THE LAWS THE CONTENTION WOULD BE
FRIVOLOUS.  FN1  THERE IS NO SUGGESTION THAT THE PURPOSE IS OTHER THAN
TO RAISE REVENUE NECESSARY FOR THE SUPPORT OF GOVERNMENT FROM ALL WHO
ENJOY THE SERVICE AND PROTECTION OF GOVERNMENT, AND TO ADJUST THE TAX
LAID ON THE APPELLANT IN THE LIGHT OF THE AID HE DERIVES FROM SUCH
SERVICE AND PROTECTION. 

SECONDLY, THE ORDINANCE LAYS NO ONEROUS BURDEN ON THE OCCUPATION OF
THE APPELLANT OR ANY OTHER CITIZEN.  THE TAX IN QUESTION IS WHOLLY
UNLIKE THAT CONSIDERED IN GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233,
WHICH HAD THE UNMISTAKABLE PURPOSE OF HITTING AT ONE OUT OF MANY
OCCUPATIONS AND HITTING SO HARD AS TO DISCOURAGE OR SUPPRESS THE
PURSUIT OF THAT CALLING.  THE COURT THERE SAID (P. 250): 

"IT IS NOT INTENDED BY ANYTHING WE HAVE SAID TO SUGGEST THAT THE
OWNERS OF NEWSPAPERS ARE IMMUNE FROM ANY OF THE ORDINARY FORMS OF
TAXATION FOR SUPPORT OF THE GOVERNMENT.  BUT THIS IS NOT AN ORDINARY
FORM OF TAX, BUT ONE SINGLE IN KIND, WITH A LONG HISTORY OF HOSTILE
MISUSE AGAINST THE FREEDOM OF THE PRESS." 

WHAT THEN IS THE LAW UNDER ATTACK?  IT IS A REVENUE MEASURE APPLYING
GENERALLY TO THOSE EARNING THEIR LIVING IN THE COMMUNITY.  IT IS A
MONETARY EXACTION REASONABLY RELATED TO THE COST OF MAINTAINING SOCIETY
BY GOVERNMENTAL PROTECTION, WHICH ALONE RENDERS CIVIL LIBERTY
ATTAINABLE.    FOLLETT IS NOT MADE TO PAY A TAX FOR THE EXERCISE OF
THAT WHICH THE FIRST AMENDMENT HAS RELIEVED FROM TAXATION.  HE IS MADE
TO PAY FOR THAT FOR WHICH ALL OTHERS SIMILARLY SITUATED MUST PAY - AN
EXCISE FOR THE OCCUPATION OF STREET VENDING.  FOLLETT ASKS EXEMPTION
BECAUSE STREET VENDING IS, FOR HIM, ALSO PART OF HIS RELIGION.  AS A
RESULT, FOLLETT WILL ENJOY A SUBSIDY FOR HIS RELIGION.  HE WILL SAVE
THE CONTRIBUTION FOR THE COST OF GOVERNMENT WHICH EVERYONE ELSE WILL
HAVE TO PAY. 

THE PRESENT DECISION EXTENDS AND REACHES BEYOND WHAT WAS DECIDED IN
MURDOCK V. PENNSYLVANIA, SUPRA.  THERE THE COMMUNITY ASSERTED THE RIGHT
TO SUBJECT TRANSIENT PREACHERS OF RELIGION TO TAXATION; THERE THE COURT
EMPHASIZED THE "ITINERANT" ASPECT OF THE ACTIVITIES SOUGHT TO BE
SUBJECTED TO THE EXACTION.  THE EMPHASIS THERE WAS UPON THE CASUAL
MISSIONARY APPEARANCES OF JEHOVAH'S WITNESSES IN THE TOWN AND THE
INJUSTICE OF SUBJECTING THEM TO A GENERAL LICENSE TAX.  HERE, A CITIZEN
OF THE COMMUNITY, EARNING HIS LIVING IN THE COMMUNITY BY A RELIGIOUS
ACTIVITY, CLAIMS IMMUNITY FROM CONTRIBUTING TO THE COST OF THE
GOVERNMENT UNDER WHICH HE LIVES.  THE RECORD SHOWS APPELLANT "TESTIFIED
THAT HE OBTAINED HIS LIVING FROM THE MONEY RECEIVED FROM THOSE WITH
WHOM HE PLACED BOOKS, THAT HE HAD NO OTHER SOURCE OF INCOME." 

UNLESS THE PHRASE "FREE EXERCISE," EMBODIED IN THE FIRST AMENDMENT,
MEANS THAT GOVERNMENT MUST RENDER SERVICE FREE TO THOSE WHO EARN THEIR
LIVING IN A RELIGIOUS CALLING, NO REASON IS APPARENT WHY THE APPELLANT,
LIKE EVERY OTHER EARNER IN THE COMMUNITY, SHOULD NOT CONTRIBUTE HIS
SHARE OF THE COMMUNITY'S COMMON BURDEN OF EXPENSE.  IN EFFECT THE
DECISION GRANTS NOT FREE EXERCISE OF RELIGION, IN THE SENSE THAT SUCH
EXERCISE SHALL NOT BE HINDERED OR LIMITED, BUT, ON THE OTHER HAND,
REQUIRES THAT THE EXERCISE OF RELIGION BE SUBSIDIZED.  TRINITY CHURCH,
OWNING GREAT PROPERTY IN NEW YORK CITY, DEVOTES THE INCOME TO RELIGIOUS
ENDS.  MUST IT, THEREFORE, BE EXEMPT FROM PAYING ITS FAIR SHARE OF THE
COST OF GOVERNMENT'S PROTECTION OF ITS PROPERTY? 

WE CANNOT IGNORE WHAT THIS DECISION INVOLVES.  IF THE FIRST AMENDMENT
GRANTS IMMUNITY FROM TAXATION TO THE EXERCISE OF RELIGION, IT MUST
EQUALLY GRANT A SIMILAR EXEMPTION TO THOSE WHO SPEAK AND TO THE PRESS. 
IT WILL NOT DO TO SAY THAT THE AMENDMENT, IN THE CLAUSE RELATING TO
RELIGION, IS COUCHED IN THE IMPERATIVE AND, IN THE CLAUSE RELATING TO
FREEDOM OF SPEECH AND OF PRESS, IS COUCHED IN THE COMPARATIVE.  THE
AMENDMENT'S PROHIBITIONS ARE EQUALLY SWEEPING.  FN2  IF EXACTIONS ON
THE BUSINESS OR OCCUPATION OF SELLING CANNOT BE ENFORCED AGAINST
JEHOVAH'S WITNESSES THEY CAN NO MORE BE ENFORCED AGAINST PUBLISHERS OR
VENDORS OF BOOKS, WHETHER DEALING WITH RELIGION OR OTHER MATTERS OF
INFORMATION.  THE DECISION NOW RENDERED MUST MEAN THAT THE GUARANTEE OF
FREEDOM OF THE PRESS CREATES AN IMMUNITY EQUAL TO THAT HERE UPHELD AS
TO TEACHING OR PREACHING RELIGIOUS DOCTRINE.  THUS THE DECISION
PRECLUDES NONOPPRESSIVE, NONDISCRIMINATORY LICENSING OR OCCUPATION
TAXES ON PUBLISHERS, AND ON NEWS VENDORS AS WELL, SINCE, WITHOUT THE
LATTER, THE DISSEMINATION OF VIEWS WOULD BE IMPOSSIBLE.  THIS COURT
DISAVOWED ANY SUCH DOCTRINE WITH RESPECT TO FREEDOM OF THE PRESS IN
GROSJEAN V. AMERICAN PRESS CO., SUPRA, AND IT IS UNTHINKABLE THAT THOSE
WHO PUBLISH AND DISTRIBUTE FOR PROFIT NEWSPAPERS AND PERIODICALS SHOULD
SUGGEST THAT THEY ARE IN A CLASS APART, UNTOUCHABLE BY TAXATION UPON
THEIR ENTERPRISES FOR THE SUPPORT OF THE GOVERNMENT WHICH MAKES THEIR
ACTIVITIES POSSIBLE. 

NOT ONLY MUST THE COURT, IF IT IS TO BE CONSISTENT, ACCORD TO
DISSEMINATION OF ALL OPINION, RELIGIOUS OR OTHER, THE SAME IMMUNITY,
BUT, EVEN IN THE FIELD OF RELIGION ALONE, THE IMPLICATIONS OF THE
PRESENT DECISION ARE STARTLING.  MULTIPLE ACTIVITIES BY WHICH CITIZENS
EARN THEIR BREAD MAY, WITH EQUAL PROPRIETY, BE DENOMINATED AN EXERCISE
OF RELIGION AS MAY PREACHING OR SELLING RELIGIOUS TRACTS.  CERTAINLY
THIS COURT CANNOT SAY THAT ONE ACTIVITY IS THE EXERCISE OF RELIGION AND
THE OTHER IS NOT.  THE MATERIALS FOR JUDICIAL DISTINCTION DO NOT
EXIST.  IT WOULD BE DIFFICULT TO DENY THE CLAIMS OF THOSE WHO DEVOTE
THEIR LIVES TO THE HEALING OF THE SICK, TO THE NURSING OF THE DISABLED,
TO THE BETTERMENT OF SOCIAL AND ECONOMIC CONDITIONS, AND TO A MYRIAD
OTHER WORTHY OBJECTS, THAT THEIR RESPECTIVE CALLINGS, ALBEIT THEY EARN
THEIR LIVING BY PURSUING THEM, ARE, FOR THEM, THE EXERCISE OF
RELIGION.  SUCH A BELIEF, HOWEVER EARNESTLY AND HONESTLY HELD, DOES NOT
ENTITLE THE BELIEVERS TO BE FREE OF CONTRIBUTION TO THE COST OF
GOVERNMENT, WHICH ITSELF GUARANTEES THEM THE PRIVILEGE OF PURSUING
THEIR CALLINGS WITHOUT GOVERNMENTAL PROHIBITION OR INTERFERENCE. 

WE SHOULD AFFIRM THE JUDGMENT. 

FN1  CLARK V. TITUSVILLE, 184 U.S. 329; SOUTHWESTERN OIL CO. V.
TEXAS, 217 U.S. 114, 121; BRADLEY V. RICHMOND, 227 U.S. 477. 

FN2  "CONGRESS SHALL MAKE NO LAW  ...  PROHIBITING THE FREE EXERCISE
(OF RELIGION); OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS  ...
"
..END :














UNITED STATES V. SEATTLE BANK, 321 U.S. 583 


NO. 267.  ARGUED FEBRUARY 7, 8, 1944.  - DECIDED MARCH 27, 1944.  - 136
F.2D 676, AFFIRMED. 


UNDER AUTHORITY OF SEC. 3 OF THE NATIONAL BANKING ACT, AS AMENDED, AND
PURSUANT TO A CONSOLIDATION AGREEMENT, A STATE BANK WAS CONSOLIDATED IN
1935 WITH A NATIONAL BANKING ASSOCIATION.  THE TRANSFER TO THE
CONSOLIDATED ASSOCIATION OF TITLE TO THE PROPERTY OF THE STATE BANK WAS
NOT EVIDENCED BY DEED, CONVEYANCE, ASSIGNMENT OR OTHER INSTRUMENT. 
HELD: 

1.  IN RESPECT OF (A) SECURITIES HELD BY THE STATE BANK AS LEGAL AND
BENEFICIAL OWNER AND (B) SECURITIES TO WHICH THE STATE BANK HELD LEGAL
TITLE IN FIDUCIARY CAPACITIES, THE TRANSFER WAS "WHOLLY BY OPERATION OF
LAW" WITHIN THE MEANING OF TREASURY REGULATIONS 71(1932 ED.), ARTS.
34(R) AND 35(R), AND THEREBY EXEMPT FROM THE STAMP TAX IMPOSED BY SEC.
800, SCHEDULE A, PARS. 3 AND 9, OF THE REVENUE ACT OF 1926, AS
AMENDED.  P. 588. 

2.  THE TRANSFER TO THE CONSOLIDATED ASSOCIATION OF THE REALTY OF THE
STATE BANK WAS NOT SUBJECT TO THE STAMP TAX IMPOSED BY SEC. 800,
SCHEDULE A-8, OF THE REVENUE ACT OF 1926, AS AMENDED SINCE THE PROPERTY
WAS NOT CONVEYED BY ANY "DEED, INSTRUMENT, OR WRITING," WAS NOT "SOLD,"
AND THERE WAS NO "PURCHASER."  P. 589. 

UNITED STATES V. SEATTLE-FIRST NATIONAL BANK. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 320 U.S. 723, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE PLAINTIFF, 44 F.SUPP.  603, IN A SUIT TO RECOVER SUMS PAID AS
TAXES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

RESPONDENT INITIATED THIS SUIT TO RECOVER THE AMOUNT OF THE
DOCUMENTARY STAMP TAX, PENALTY AND INTEREST WHICH HAD BEEN EXACTED
UNDER THE REVENUE ACT OF 1926, AS AMENDED, IN CONNECTION WITH A
STATUTORY CONSOLIDATION OF BANKS UNDER SEC. 3 OF THE NATIONAL BANKING
ACT.  FN1  THE DISTRICT COURT ENTERED JUDGMENT FOR RESPONDENT FOR THE
AMOUNT OF THE TAX AND INTEREST, 44 F.SUPP.  603.  FN2 THE CIRCUIT COURT
OF APPEALS HELD THAT THE CASE WAS GOVERNED BY ONE OF ITS FORMER
DECISIONS  FN3 AND AFFIRMED THE JUDGMENT, 136 F.2D 676.  WE GRANTED
CERTIORARI, 320 U.S. 723, BECAUSE THIS JUDGMENT WAS ALLEGED TO CONFLICT
WITH DECISIONS IN OTHER CIRCUITS  FN4  AND BECAUSE OF THE DESIRABILITY
OF A FINAL SETTLEMENT OF THE PROBLEMS INVOLVED. 

IN 1935 THE DIRECTORS OF THE SPOKANE AND EASTERN TRUST COMPANY, A
STATE BANK, ENTERED INTO A WRITTEN AGREEMENT OF CONSOLIDATION WITH THE
DIRECTORS OF THE FIRST NATIONAL BANK OF SEATTLE.  THE AGREEMENT
PROVIDED THAT THE BANKS WERE TO BE CONSOLIDATED UNDER THE CHARTER OF
THE FIRST NATIONAL BANK OF SEATTLE AND UNDER THE NEW CORPORATE TITLE OF
SEATTLE-FIRST NATIONAL BANK, THE RESPONDENT HEREIN.  THE AGREEMENT WAS
RATIFIED AND CONFIRMED BY THE REQUISITE NUMBER OF STOCKHOLDERS OF BOTH
BANKS AND THE COMPTROLLER OF THE CURRENCY ISSUED THE NECESSARY
CERTIFICATE OF APPROVAL, RECITING THAT THE DIRECTORS AND SHAREHOLDERS
OF BOTH BANKS HAD COMPLIED WITH THE PROVISIONS OF THE NATIONAL BANKING
ACT. 

THE STATE BANK OWNED REAL ESTATE, INCLUDING ITS BANKING PREMISES, AS
WELL AS CORPORATE STOCKS AND BONDS, TO ALL OF WHICH IT HELD LEGAL AND
BENEFICIAL TITLE AS PART OF ITS CORPORATE ASSETS.  IT ALSO HELD IN
TRUST CERTAIN STOCKS AND BONDS, THE LEGAL TITLE TO WHICH WAS VESTED IN
IT AS TRUSTEE, EXECUTOR, ADMINISTRATOR, GUARDIAN, OR IN OTHER FIDUCIARY
CAPACITIES.  SECTION 5 OF THE CONSOLIDATION AGREEMENT PROVIDED THAT
"ALL ASSETS OF EACH ASSOCIATION AT THE DATE OF CONSOLIDATION SHALL PASS
TO AND VEST IN THE CONSOLIDATED ASSOCIATION, AND THE CONSOLIDATED
ASSOCIATION SHALL BE RESPONSIBLE FOR ALL OF THE LIABILITIES OF EVERY
KIND AND DESCRIPTION OF EACH OF THE CONSOLIDATING ASSOCIATIONS." 

THE TRANSFER TO RESPONDENT OF TITLE TO THIS PROPERTY HELD BY THE
STATE BANK WAS NOT EVIDENCED BY ANY DEED, CONVEYANCE, ASSIGNMENT OR
OTHER INSTRUMENT.  NOR WERE ANY DOCUMENTARY STAMPS PURCHASED OR AFFIXED
WITH RESPECT TO SUCH TRANSFER.  SUBSEQUENTLY, A DEPUTY COLLECTOR
EXAMINED THE BANK RECORDS AND EXACTED A TAX FROM RESPONDENT ON THE
THEORY THAT THE CONSOLIDATION HAD RESULTED IN A TAXABLE TRANSFER.  THE
NECESSARY STAMPS WERE PURCHASED AND AFFIXED AND THIS SUIT FOR REFUND
FOLLOWED. 

FIRST.  WE CONCLUDE THAT, AS TO THE SECURITIES TO WHICH THE STATE
BANK HELD BOTH LEGAL AND BENEFICIAL TITLE, THERE WAS NO TAXABLE
TRANSFER UNDER THE STAMP TAX PROVISIONS IN EFFECT AT THE TIME THE
CONSOLIDATION TOOK PLACE. 

FN5  IMPOSES A STAMP TAX ON TRANSFERS OF LEGAL TITLE TO ANY SHARES OF
STOCK OR CERTIFICATES, "WHETHER MADE UPON OR SHOWN BY THE BOOKS OF THE
CORPORATION OR OTHER ORGANIZATION, OR BY ANY ASSIGNMENT IN BLANK, OR BY
ANY DELIVERY, OR BY ANY PAPER OR AGREEMENT OR MEMEORANDUM OR OTHER
EVIDENCE OF TRANSFER OR SALE (WHETHER ENTITLING THE HOLDER IN ANY
MANNER TO THE BENEFIT OF SUCH SHARE, CERTIFICATE  ...  OR NOT)." 
SCHEDULE A-9  FN6  IMPOSES A STAMP TAX ON SIMILAR TRANSFERS OF LEGAL
TITLE TO BONDS. 

STANDING ALONE, THESE STATUTORY PROVISIONS MAKE NO EXCEPTIONS AND
CLEARLY IMPOSE A TAX ON THE TRANSFER OF TITLE TO THE SECURITIES LEGALLY
AND BENEFICIALLY OWNED BY THE STATE BANK.  BUT ADMINISTRATIVE
REGULATIONS, WHICH UNTIL RECENTLY HAVE BEEN LEFT UNDISTURBED BY
SUBSEQUENTLY ENACTED LEGISLATION AND ARE TO BE RESPECTED AS SETTLED
ADMINISTRATIVE PRACTICE,  FN7  HAVE CARVED OUT CERTAIN EXEMPTIONS
GERMANE TO THE TRANSFER HERE INVOLVED.  THUS ARTICLE 34(R) OF TREASURY
REGULATIONS 71(1932 ED.)  PROVIDES THAT THE TRANSFER OF STOCK OWNED BY
A CORPORATION WHICH IS MERGED INTO ANOTHER CORPORATION IS SUBJECT TO
THE STAMP TAX, "SUCH A TRANSFER BEING EFFECTED BY THE ACT OF THE
PARTIES AND NOT WHOLLY BY OPERATION OF LAW."  FN8  ARTICLE 35(R)
SPECIFICALLY EXEMPTS FROM THE TAX THOSE TRANSFERS OF SHARES OR
CERTIFICATES OF STOCK "WHICH RESULT WHOLLY BY OPERATION OF LAW"; IT
FURTHER STATES THAT "TRANSFERS OF THIS CHARACTER ARE THOSE WHICH THE
LAW ITSELF WILL EFFECT WITHOUT ANY VOLUNTARY ACT OF THE PARTIES, SUCH
AS TRANSFER OF STOCK FROM DECEDENT TO EXECUTOR."  ARTICLE 120 MAKES
THESE SAME PROVISIONS APPLICABLE TO SALES OR TRANSFERS OF BONDS.  THE
PROBLEM THUS RESOLVES ITSELF INTO A DETERMINATION OF WHETHER THE
TRANSFER OF THE STATE BANK'S SECURITIES TO RESPONDENT OCCURRED "WHOLLY
BY OPERATION OF LAW" SO AS TO EXEMPT THE TRANSFER FROM THE STAMP TAX
REQUIREMENTS. 

IT IS CLEAR THAT THE CONSOLIDATION OR MERGER OF THE NATIONAL BANK AND
THE STATE BANK OCCURRED THROUGH THE VOLUNTARY ACTS OF THE RESPECTIVE
DIRECTORS AND STOCKHOLDERS PURSUANT TO THE PROVISIONS OF SEC. 3 OF THE
NATIONAL BANKING ACT, WITH THE APPROVAL OF THE COMPTROLLER OF THE
CURRENCY.  IF THE WORDS "WHOLLY BY OPERATION OF LAW," AS USED IN THE
ADMINISTRATIVE REGULATIONS, REFER HERE TO THE ENTIRE PROCESS OF
CONSOLIDATION, OF WHICH THE TRANSFER OF SECURITIES IS AN ESSENTIAL
PART, THE EXEMPTION CANNOT BE APPLIED.  BUT IN A BROAD SENSE, FEW IF
ANY TRANSFERS EVER TAKE PLACE "WHOLLY BY OPERATION OF LAW," FOR EVERY
TRANSFER MUST NECESSARILY BE A PART OF A CHAIN OF HUMAN EVENTS, RARELY
IF EVER OTHER THAN VOLUNTARY IN CHARACTER.  THUS TO GIVE ANY REAL
SUBSTANCE TO THE EXEMPTION, WE MUST TAKE A MORE NARROW VIEW AND EXAMINE
THE TRANSFER APART FROM ITS GENERAL BACKGROUND.  WE MUST LOOK ONLY TO
THE IMMEDIATE MECHANISM BY WHICH THE TRANSFER IS MADE EFFECTIVE.  IF
THAT MECHANISM IS ENTIRELY STATUTORY, EFFECTING AN AUTOMATIC TRANSFER
WITHOUT ANY VOLUNTARY ACTION BY THE PARTIES, THEN THE TRANSFER MAY
TRULY BE SAID TO BE "WHOLLY BY OPERATION OF LAW." 

HERE THE ACTUAL TRANSFER TO RESPONDENT OF THE LEGAL AND BENEFICIAL
TITLE TO THE SECURITIES OWNED BY THE STATE BANK WAS NOT EFFECTED BY OR
DEPENDENT ON ANY OF THE VOLUNTARY ACTS RELATING TO THE CONSOLIDATION
AGREEMENT OR THE RATIFICATION OR APPROVAL THEREOF.  NOR WAS ANY
VOLUNTARY DEED, CONVEYANCE, ASSIGNMENT OR OTHER INSTRUMENT UTILIZED. 
RATHER THE TRANSFER OCCURRED SOLELY AND AUTOMATICALLY BY VIRTUE OF SEC.
3 OF THE NATIONAL BANKING ACT.  THIS PROVIDES IN PERTINENT PART THAT:
(1) UPON CONSOLIDATION, THE CORPORATE EXISTENCE OF EACH OF THE
CONSTITUENT BANKS SHALL BE MERGED AND CONTINUED IN THE CONSOLIDATED
NATIONAL BANKING ASSOCIATION, WHICH SHALL BE DEEMED TO BE THE SAME
CORPORATION AS THE CONSTITUENT BANKS; (2) ALL THE RIGHTS, FRANCHISES
AND INTERESTS OF EACH CONSTITUENT BANK IN AND TO EVERY SPECIES OF
PROPERTY, REAL, PERSONAL AND MIXED, AND CHOSES IN ACTION THERETO
BELONGING, "SHALL BE DEEMED TO BE TRANSFERRED TO AND VESTED IN" THE
CONSOLIDATED ASSOCIATION WITHOUT ANY DEED OR OTHER TRANSFER; (3) THE
CONSOLIDATES ASSOCIATION, BY VIRTUE OF SUCH CONSOLIDATION AND WITHOUT
ANY ORDER OR OTHER ACTION BY ANY COURT OR OTHERWISE, SHALL HOLD AND
ENJOY THE SAME AND ALL RIGHTS OF PROPERTY, FRANCHISES AND INTERESTS
(INCLUDING FIDUCIARY INTERESTS) IN THE SAME MANNER AND TO THE SAME
EXTENT AS HELD AND ENJOYED BY THE CONSTITUENT BANKS. 

THUS IT IS THE NATIONAL BANKING ACT THAT IS THE MECHANISM BY WHICH
THE TRANSFER OF SECURITIES IS MADE EFFECTIVE.  NO VOLUNTARY ACT BY THE
PARTIES IS NECESSARY.  IT FOLLOWS THAT THE TRANSFER OCCURRED "WHOLLY BY
OPERATION OF LAW."  THE MERE FACT THAT THE PARTIES HERE SAW FIT TO
INCLUDE IN THEIR CONSOLIDATION AGREEMENT A PROVISION THAT ALL ASSETS OF
EACH CONSTITUENT BANK "SHALL PASS TO AND VEST IN THE CONSOLIDATED
ASSOCIATION" DOES NOT MAKE THE TRANSFER ANY LESS THAN ONE "WHOLLY BY
OPERATION OF LAW."  THIS WAS MERELY AN AGREEMENT THAT THE ASSETS WOULD
BE TRANSFERRED IN THE FUTURE AND DID NOT PURPORT TO BE A PRESENT,
EFFECTIVE CONVEYANCE.  THE TRANSFER OF THE SECURITIES TO WHICH THE
STATE BANK HELD LEGAL AND BENEFICIAL TITLE WAS THEREFORE EXEMPT FROM
THE STAMP TAX UNDER ARTICLES 34(R)  AND 35(R). 

SECOND.  WE REACH THE SAME CONCLUSION AS TO THE TRANSFER OF
SECURITIES TO WHICH THE STATE BANK HELD LEGAL TITLE IN TRUST IN VARIOUS
FIDUCIARY CAPACITIES.  THE INTENT TO TAX SUCH TRANSFERS MUST BE CLEAR
AND UNMISTAKABLE.  NO SUCH INTENT IS APPARENT HERE.  UNDER SEC. 3 OF
THE NATIONAL BANKING ACT, THESE SECURITIES PASSED TO RESPONDENT "WHOLLY
BY OPERATION OF LAW" JUST AS DID THE SECURITIES PREVIOUSLY DISCUSSED. 
ARTICLES 34(R) AND 35(R) MAKE NO DISTINCTION BETWEEN TRANSFERS OF
STOCKS FROM A FIDUCIARY AND TRANSFERS FROM ONE WHO IS ALSO THE
BENEFICIAL OWNER.  THE EXEMPTION THEREIN CONTAINED IS THEREFORE
APPLICABLE.  FN9 

THIRD.  THE TRANSFER OF THE REAL PROPERTY OWNED BY THE STATE BANK IS
LIKEWISE, IN OUR OPINION, EXEMPT FROM THE STAMP TAX. 

FN10  PLACES A STAMP TAX ON "CONVEYANCES:  DEED, INSTRUMENT, OR
WRITING, DELIVERED  ...  WHEREBY ANY LANDS, TENEMENTS, OR OTHER REALTY
SOLD SHALL BE GRANTED, ASSIGNED, TRANSFERRED, OR OTHERWISE CONVEYED TO,
OR VESTED IN, THE PURCHASER OR PURCHASERS  ..."  IT IS CLEAR, HOWEVER,
FROM SEC. 3 OF THE NATIONAL BANKING ACT THAT THE STATE BANK'S REALTY
WAS NOT CONVEYED TO OR VESTED IN RESPONDENT BY MEANS OF ANY DEED,
INSTRUMENT OR WRITING.  THERE WAS A COMPLETE ABSENCE OF ANY OF THE
FORMAL INSTRUMENTS OR WRITINGS UPON WHICH THE STAMP TAX IS LAID.  NOR
CAN THE REALTY BE SAID TO HAVE BEEN "SOLD" OR VESTED IN A "PURCHASER OR
PURCHASERS" WITHIN THE ORDINARY MEANINGS OF THOSE TERMS.  ONLY BY
STRAINING THE REALITIES OF THE STATUTORY CONSOLIDATION PROCESS CAN
RESPONDENT BE SAID TO HAVE "BOUGHT" OR "PURCHASED" THE REAL PROPERTY. 
THAT WE ARE UNABLE TO DO. 

THE JUDGMENT OF THE COURT BELOW IS THEREFORE AFFIRMED. 

FN1  ACT OF NOVEMBER 7, 1918, C. 209, 40 STAT. 1043, SEC. 3, AS ADDED
BY THE ACT OF FEBRUARY 25, 1927, C. 191, 44 STAT. 1224, SEC. 1, AND AS
AMENDED BY THE BANKING ACT OF 1933, C. 89, 48 STAT. 162, SEC. 24, AND
THE BANKING ACT OF 1935, C. 614, 49 STAT. 684, SEC. 331; 12 U.S.C. SEC.
34A. 

FN2  RECOVERY WAS DENIED FOR THE $100 PENALTY, WHICH WAS PAID IN
COMPROMISE OF A THREATENED CRIMINAL PROSECUTION, ON THE GROUND THAT THE
COMPROMISE WAS A FINAL SETTLEMENT OF THE PENALTY.  THIS MATTER IS NOT
NOW BEFORE US. 

FN3  UNITED STATES V. MERCHANTS NATIONAL BANK, 101 F.2D 399. 

FN4  SEE CITY BANK FARMERS TRUST CO. V. HOEY, 125 F.2D 577; STATE
STREET TRUST CO. V. HASSETT, 134 F.2D 156. 

FN5  C. 27, 44 STAT. 9, AS AMENDED BY SEC. 723(A) OF THE REVENUE ACT
OF 1932, C. 209, 47 STAT. 169. 

FN6  C. 27, 44 STAT. 9, AS ADDED BY SEC. 724(A) OF THE REVENUE ACT OF
1932, C. 209, 47 STAT. 169, AND AS AMENDED BY SEC. 212 OF THE NATIONAL
INDUSTRIAL RECOVERY ACT, C. 90, 48 STAT. 195, AND AS AMENDED BY PUB.
RES. NO. 36, C. 333, 49 STAT. 431. 

FN7  SUBSTANTIALLY SIMILAR REGULATIONS WERE PROMULGATED UNDER THE
REVENUE ACT OF 1926 AND WERE IN EFFECT WHEN CONGRESS, IN THE REVENUE
ACT OF 1932, REENACTED THE STAMP TAX PROVISIONS IN ISSUE.  CONGRESS DID
NOT SEE FIT TO AMEND OR CHANGE THESE REGULATIONS UNTIL THE REVENUE ACT
OF 1942, SECS. 506(B)(1) AND (2), C. 619, 56 STAT. 958, SEE HELVERING
V. REYNOLDS TOBACCO CO., 306 U.S. 110, 115. 

FN8  WHILE THE GRAMMATICAL CONSTRUCTION OF THE QUOTED CLAUSE GIVES
RISE TO SOME DOUBT AS TO ITS MEANING, WE INTERPRET IT IN ACCORD WITH
ARTICLE 35(R) SO AS TO IMPOSE A TAX ON TRANSFERS ARISING OUT OF MERGERS
ONLY IF THE TRANSFER OCCURS BY THE ACT OF THE PARTIES AND NOT WHOLLY BY
OPERATION OF LAW. 

FN9  BECAUSE OF THE CLEAR APPLICABILITY OF ARTICLES 34(R) AND 35(R),
WE HAVE NO OCCASION TO DETERMINE THE APPLICABILITY HERE OF ARTICLE
35(H), WHICH EXEMPTS FROM THE STAMP TAX "THE TRANSFER OF STOCK FROM THE
NAME OF A DECEASED OR RESIGNED TRUSTEE TO THE NAME OF A SUBSTITUTED
TRUSTEE APPOINTED IN ACCORDANCE WITH THE TERMS OF THE ORIGINAL TRUST
AGREEMENT, WHICH IS A TRANSFER RESULTING WHOLLY BY OPERATION OF LAW." 

FN10  C. 27, 44 STAT. 9, AS ADDED BY SEC. 725 OF THE REVENUE ACT OF
1932, AND AS AMENDED BY SEC. 212 OF THE NATIONAL INDUSTRIAL RECOVERY
ACT, AND AS AMENDED BY PUB. RES. NO. 36, C. 333, 49 STAT. 431. 
..END :
























TENNESSEE COAL CO. V. MUSCODA LOCAL, 321 U.S. 590 


NO. 409.  ARGUED JANUARY 13, 14, 1944 - DECIDED MARCH 27, 1944.  - 137
F.2D 176, AFFIRMED. 


1.  THE FAIR LABOR STANDARDS ACT IS REMEDIAL AND HUMANITARIAN IN
NATURE AND MUST NOT BE INTERPRETED OR APPLIED IN A NARROW, GRUDGING
MANNER.  P. 597. 

2.  SECTIONS 7(A), 3(G) AND 3(J) OF THE FAIR LABOR STANDARDS ACT ARE
NECESSARILY INDICATIVE OF A CONGRESSIONAL INTENTION TO GUARANTEE EITHER
REGULAR OR OVERTIME COMPENSATION FOR ALL ACTUAL WORK OR EMPLOYMENT.  P.
597. 

3.  IN THE ABSENCE OF A CONTRARY LEGISLATIVE EXPRESSION, IT MUST BE
ASSUMED THAT CONGRESS IN THE FAIR LABOR STANDARDS ACT WAS REFERRING TO
WORK OR EMPLOYMENT AS THOSE WORDS ARE COMMONLY USED - AS MEANING
PHYSICAL OR MENTAL EXERTION (WHETHER BURDENSOME OR NOT) CONTROLLED OR
REQUIRED BY THE EMPLOYER AND PURSUED NECESSARILY AND PRIMARILY FOR THE
BENEFIT OF THE EMPLOYER AND HIS BUSINESS.  P. 598. 

4.  UNDERGROUND TRAVEL BY IRON ORE MINERS TO AND FROM THE "WORKING
FACE" OF THE MINES, HELD, UPON THE FACTS OF THIS CASE AS FOUND BY BOTH
COURTS BELOW, TO CONSTITUTE WORK.  SUCH UNDERGROUND TRAVEL TIME IS
INCLUDIBLE IN THE WORKWEEK WITHIN THE MEANING OF THE FAIR LABOR
STANDARDS ACT AND MUST BE COMPENSATED ACCORDINGLY.  P. 598. 

5.  ALTHOUGH SUCH UNDERGROUND TRAVEL OF THE IRON ORE MINERS IS IN A
STRICT SENSE NON-PRODUCTIVE, THEY ARE NEVERTHELESS ENGAGED DURING SUCH
TRAVEL TIME IN A "PROCESS OR OCCUPATION NECESSARY TO ...  PRODUCTION,"
WITHIN THE MEANING OF SEC. 3(J) OF THE ACT.  P. 599. 

6.  THE FACTS RELATING TO UNDERGROUND TRAVEL BY MINERS IN IRON ORE
MINES IN THIS CASE LEAVE NO DOUBT AS TO ITS CHARACTER AS WORK WITHIN
THE MEANING OF THE FAIR LABOR STANDARDS ACT, AND THE REQUIREMENT OF THE
ACT THAT IT BE COMPENSATED ACCORDINGLY CAN NOT BE RENDERED INAPPLICABLE
BY ANY CONTRARY CUSTOM OR CONTRACT.  P. 602. 

TENNESSEE COAL, IRON & RAILROAD CO. ET AL V. MUSCODA LOCAL NO. 123 ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 320 U.S. 731, TO REVIEW A JUDGMENT WHICH MODIFIED AND
AFFIRMED A JUDGMENT, 40 F.SUPP.  4, IN ACTIONS FOR DECLARATORY
JUDGMENTS CONSTRUING THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE CONFRONTED HERE WITH THE PROBLEM OF DETERMINING IN PART WHAT
CONSTITUTES WORK OR EMPLOYMENT IN UNDERGROUND IRON ORE MINES WITHIN THE
MEANING OF THE FAIR LABOR STANDARDS ACT, 52 STAT. 1060, 29 U.S.C. SEC.
201.  THIS QUESTION, WHICH IS ONE OF FIRST IMPRESSION, ARISES OUT OF
CONFLICTING CLAIMS BASED UPON THE ACTUAL ACTIVITIES PURSUED AND UPON
PRIOR CUSTOM AND CONTRACT IN THE IRON ORE MINES.  SUCH AN ISSUE CAN BE
RESOLVED ONLY BY DISCARDING FORMALITIES AND ADOPTING A REALISTIC
ATTITUDE, RECOGNIZING THAT WE ARE DEALING WITH HUMAN BEINGS AND WITH A
STATUTE THAT IS INTENDED TO SECURE TO THEM THE FRUITS OF THEIR TOIL AND
EXERTION. 

THREE IRON ORE MINING COMPANIES, PETITIONERS HEREIN, FILED
DECLARATORY JUDGMENT ACTIONS  FN1  TO DETERMINE WHETHER TIME SPENT BY
IRON ORE MINERS IN TRAVELING UNDERGROUND IN MINES TO AND FROM THE
"WORKING FACE"  FN2  CONSTITUTES WORK OR EMPLOYMENT FOR WHICH
COMPENSATION MUST BE PAID UNDER THE ACT.  THE RESPONDENT LABOR UNIONS
AND THEIR OFFICIALS, REPRESENTING PETITIONERS' EMPLOYEES, WERE NAMED AS
DEFENDANTS AND THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE
DEPARTMENT OF LABOR WAS ALLOWED TO INTERVENE.  THE ACTUAL CONTROVERSY
RELATES ONLY TO THE HOURS OF EMPLOYMENT DURING THE PERIOD INTERVENING
BETWEEN THE EFFECTIVE DATE OF THE ACT, OCTOBER 24, 1938, AND THE DATES
WHEN THE RESPECTIVE ACTIONS WERE INITIATED IN APRIL, 1941.  FN3  IT IS
CONCEDED THAT IF UNDERGROUND TRAVEL CONSTITUTES EMPLOYMENT, THE MINERS
WORKED MORE THAN THE STATUTORY MAXIMUM WORKWEEK AND ARE ENTITLED TO BE
PAID ONE AND ONE-HALF TIMES THE REGULAR RATE FOR THE EXCESS HOURS.  BUT
IF THE TRAVEL TIME IS EXCLUDED FROM THE WORKWEEK, THUS LIMITING IT TO
THE TIME SPENT AT THE WORKING FACE, NO OVERTIME PAYMENTS ARE DUE. 

AFTER EXTENDED HEARINGS, THE DISTRICT COURT FOUND THAT THE TRAVEL
TIME "BEARS IN A SUBSTANTIAL DEGREE EVERY INDICIA OF WORKTIME:
SUPERVISION BY THE EMPLOYER, PHYSICAL AND MENTAL EXERTION, ACTIVITY
NECESSARY TO BE PERFORMED FOR THE EMPLOYERS' BENEFIT, AND CONDITIONS
PECULIAR TO THE OCCUPATION OF MINING."  THE COURT ACCORDINGLY RULED
THAT THE TRAVEL TIME, AS WELL AS THE TIME SPENT AT THE SURFACE
OBTAINING AND RETURNING TOOLS, LAMPS AND CARBIDE AND CHECKING IN AND
OUT, WAS INCLUDED WITHIN THE WORKWEEK.  40 F.SUPP.  4.  THE CIRCUIT
COURT OF APPEALS AFFIRMED AS TO THE TRAVEL TIME, HOLDING THAT THE
DISTRICT COURT'S FINDINGS ON THAT MATTER WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE.  THE JUDGMENT WAS MODIFIED BY THE CIRCUIT COURT, HOWEVER, BY
EXCLUDING FROM THE WORKWEEK THE TIME SPENT IN THE ACTIVITIES AT THE
SURFACE.  135 F.2D 320; REHEARING DENIED, 137 F.2D 176.  THE IMPORTANCE
OF THE PROBLEM AS TO THE TRAVEL TIME LED US TO GRANT CERTIORARI.  FN4 

SPECIFICALLY WE ARE CALLED UPON TO DECIDE WHETHER THE DISTRICT COURT
AND THE CIRCUIT COURT OF APPEALS PROPERLY FOUND THAT IRON ORE MINERS
WERE AT WORK WITHIN THE MEANING OF THE ACT WHILE ENGAGED IN UNDERGROUND
TRAVEL WHICH THEY WERE OBLIGED TO PERFORM ON THE PROPERTY OF AND UNDER
THE DIRECTION OF PETITIONERS AS A NECESSARY CONCOMITANT OF THEIR
EMPLOYMENT.  THE RECORD SHOWS THAT PETITIONERS OWN AND OPERATE TWELVE
UNDERGROUND IRON ORE MINES IN JEFFERSON COUNTY, ALABAMA,  FN5 AND THAT
THE GENERAL PATTERN OF FACTS UNDERLYING THE FINDINGS OF THE COURTS
BELOW IS ESSENTIALLY THE SAME IN EACH OF THESE MINES.  FN6 

THE MINERS BEGIN THEIR DAY BY ARRIVING ON THE COMPANY PROPERTY AT A
SCHEDULED HOUR  FN7  AND GOING TO THE BATH HOUSE, WHERE THEY CHANGE
INTO WORKING CLOTHES.  FN8  THEY THEN WALK TO THE TALLY HOUSE NEAR THE
MINE ENTRANCE OR PORTAL; THERE THEY CHECK IN AND HANG UP INDIVIDUAL
BRASS CHECKS, FURNISHED BY PETITIONERS, ON A TALLY OR CHECK-IN BOARD. 
THIS ENABLES THE FOREMAN AND OTHER OFFICIALS TO TELL AT A GLANCE THOSE
INDIVIDUALS WHO HAVE REPORTED FOR WORK AND THOSE PRODUCTION AND SERVICE
CREWS THAT ARE INCOMPLETE AND IN NEED OF SUBSTITUTES.  VACANCIES ARE
FILLED AND THE HEAD MINERS AND CREWS RECEIVE ANY NECESSARY
INSTRUCTIONS.  IN ADDITION, EACH MINER EITHER RENTS A BATTERY LAMP FOR
THE DAY OR BUYS A CAN OF CARBIDE EACH DAY OR TWO FOR UNDERGROUND
ILLUMINATION PURPOSES.  AND AT SOME OF THE MINES, MANY MINERS STOP AT A
TOOL BOX OR TOOL HOUSE ON THE SURFACE TO PICK UP OTHER SMALL SUPPLIES
AND TOOLS NECESSARY FOR THEIR WORK.  THESE ACTIVITIES CONSUME BUT A FEW
MINUTES. 

THE MINERS THEREUPON ARE REQUIRED TO REPORT AT THE LOADING PLATFORM
AT THE MINE PORTAL AND AWAIT THEIR TURN TO RIDE DOWN THE INCLINED
SHAFTS OF THE MINES.  ORIGINALLY THE MINERS COULD REACH THE WORKING
FACES ENTIRELY BY FOOT, BUT AS THE SHAFTS INCREASED IN LENGTH
PETITIONERS PROVIDED TRANSPORTATION DOWN THE MAIN SHAFTS.  THE MINERS
ACCORDINGLY RIDE PART OF THE WAY TO THE WORKING FACES IN ORE SKIPS  FN9
OR REGULAR MAN TRIPS,  FN10  WHICH OPERATE ON NARROW GAUGE TRACKS BY
MEANS OF CABLES OR HOISTING ROPES.  THE OPERATION OF THE SKIPS AND MAN
TRIPS IS UNDER THE STRICT CONTROL AND SUPERVISION OF THE PETITIONERS AT
ALL TIMES AND THEY REFUSE TO PERMIT THE MINERS TO WALK RATHER THAN
RIDE.  REGULAR SCHEDULES ARE FIXED; LOADING AND UNLOADING ARE
SUPERVISED; THE SPEED OF THE TRIPS IS REGULATED; AND THE CONDUCT OF THE
MINERS DURING THE RIDES IS PRESCRIBED. 

ABOUT THREE TO SIX TRIPS ARE MADE, DEPENDING ON THE SIZE OF THE MINE
AND THE NUMBER OF MINERS.  TEN MEN SIT ON EACH MAN TRIP CAR, WHILE FROM
30 TO 40 ARE CROWDED INTO AN ORE SKIP.  THEY ARE FORCED TO JUMP SEVERAL
FEET INTO THE SKIP FROM THE LOADING PLATFORM, WHICH NOT INFREQUENTLY
CAUSES INJURIES TO ANKLES, FEET AND HANDS.  THE SKIPS ARE USUALLY
OVERCROWDED AND THE MEN STAND TIGHTLY PRESSED TOGETHER.  THE HEADS OF
MOST OF THEM ARE A FOOT OR MORE ABOVE THE TOP OF THE SKIPS.  BUT SINCE
THE SKIPS USUALLY CLEAR THE LOW MINE CEILINGS BY ONLY A FEW INCHES, THE
MINERS ARE COMPELLED TO BEND OVER.  THEY THUS RIDE IN A CLOSE "SPOON
FASHION," WITH BODIES CONTORTED AND HEADS DRAWN BELOW THE LEVEL OF THE
SKIP TOP.  BROKEN RIBS, INJURED ARMS AND LEGS, AND BLOODY HEADS OFTEN
RESULT; EVEN FATALITIES ARE NOT UNKNOWN. 

THE LENGTH OF THE RIDES IN THE DARK, MOIST, MALODOROUS SHAFTS VARIES
IN THE DIFFERENT MINES FROM 3,000 FEET TO 12,000 FEET.  THE MINERS THEN
CLIMB OUT OF THE SKIPS AND MAN TRIPS AT THE UNDERGROUND MAN-LOADING
PLATFORMS OR "HOODLUMS" AND CONTINUE THEIR JOURNEYS ON FOOT FOR
DISTANCES UP TO TWO MILES.  THESE SUBTERRANEAN WALKS ARE FILLED WITH
DISCOMFORTS AND HIDDEN PERILS.  THE SURROUNDINGS ARE DARK AND DANK. 
THE AIR IS INCREASINGLY WARM AND HUMID, THE VENTILATION POOR.  ODORS OF
HUMAN SEWAGE, RESULTING FROM A COMPLETE ABSENCE OF SANITARY FACILITIES,
PERMEATE THE ATMOSPHERE.  ROTTING MINE TIMBERS ADD TO THE BEFOULING OF
THE AIR.  MANY OF THE PASSAGES ARE LEVEL, BUT OTHERS TAKE THE FORM OF
TUNNELS AND STEEP GRADES.  WATER, MUCK AND STRAY PIECES OF ORE OFTEN
MAKE THE FOOTING UNCERTAIN.  LOW CEILINGS MUST BE DUCKED AND MOVING ORE
SKIPS MUST BE AVOIDED.  OVERHEAD, A MAZE OF WATER AND AIR PIPE LINES,
TELEPHONE WIRES, AND EXPOSED HIGH VOLTAGE ELECTRIC CABLES AND WIRES
PRESENT EVER-DANGEROUS OBSTACLES, ESPECIALLY TO THOSE TRANSPORTING
TOOLS.  AT ALL TIMES THE MINERS ARE SUBJECT TO THE HAZARDS OF FALLING
ROCKS. 

MOREOVER, MOST OF THE WORKING EQUIPMENT, EXCEPT DRILLS AND HEAVY
SUPPLIES, IS KEPT NEAR THE "HOODLUMS."  THIS EQUIPMENT IS CARRIED EACH
DAY BY FOOT BY THE CREWS THROUGH THESE PERILOUS PATHS FROM THE
"HOODLUMS" TO THE WORKING FACES.  INCLUDED ARE SUCH ITEMS AS FIFTY
POUND SACKS OF DYNAMITE, DYNAMITE CAPS, FUSES, GALLON CANS OF OIL AND
SERVICEMEN'S SUPPLIES.  ACTUAL DRILLING AND LOADING OF THE ORE BEGIN ON
ARRIVAL AT THE WORKING FACES, INTERRUPTED ONLY BY A THIRTY MINUTE LUNCH
PERIOD SPENT AT OR NEAR THE FACES.  THE SERVICE AND MAINTENANCE MEN, OF
COURSE, WORK WHEREEVER THEY ARE NEEDED. 

AT THE END OF THE DAY'S DUTIES AT THE WORKING FACES, THE MINERS LAY
DOWN THEIR DRILLS, PICK UP THEIR OTHER EQUIPMENT AND RETRACE THEIR
STEPS BACK TO THE "HOODLUMS."  THEY WAIT THERE UNTIL AN ORE SKIP OR MAN
TRIP IS AVAILABLE TO TRANSPORT THEM BACK TO THE PORTAL.  AFTER ARRIVING
ON THE SURFACE, THEY RETURN THEIR SMALL TOOLS AND LAMPS, PICK UP THEIR
BRASS CHECKS AT THE TALLY HOUSE, AND PROCEED TO BATHE AND CHANGE THEIR
CLOTHES AT THE BATH HOUSE.  FINALLY THEY LEAVE PETITIONERS' PROPERTY
AND RETURN TO THEIR HOMES. 

IN DETERMINING WHETHER THIS UNDERGROUND TRAVEL CONSTITUTES
COMPENSABLE WORK OR EMPLOYMENT WITHIN THE MEANING OF THE FAIR LABOR
STANDARDS ACT, WE ARE NOT GUIDED BY ANY PRECISE STATUTORY DEFINITION OF
WORK OR EMPLOYMENT.  SECTION 7(A) MERELY PROVIDES THAT NO ONE, WHO IS
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE, SHALL
BE EMPLOYED FOR A WORKWEEK LONGER THAN THE PRESCRIBED HOURS UNLESS
COMPENSATION IS PAID FOR THE EXCESS HOURS AT A RATE NOT LESS THAN ONE
AND ONE-HALF TIMES THE REGULAR RATE.  SECTION 3(G) DEFINES THE WORD
"EMPLOY" TO INCLUDE "TO SUFFER OR PERMIT TO WORK," WHILE SEC. 3(J)
STATES THAT "PRODUCTION" INCLUDES "ANY PROCESS OR OCCUPATION NECESSARY
TO ...  PRODUCTION." 

BUT THESE PROVISIONS, LIKE THE OTHER PORTIONS OF THE FAIR LABOR
STANDARDS ACT, ARE REMEDIAL AND HUMANITARIAN IN PURPOSE.  WE ARE NOT
HERE DEALING WITH MERE CHATTELS OR ARTICLES OF TRADE BUT WITH THE
RIGHTS OF THOSE WHO TOIL, OF THOSE WHO SACRIFICE A FULL MEASURE OF
THEIR FREEDOM AND TALENTS TO THE USE AND PROFIT OF OTHERS.  THOSE ARE
THE RIGHTS THAT CONGRESS HAS SPECIALLY LEGISLATED TO PROTECT.  SUCH A
STATUTE MUST NOT BE INTERPRETED OR APPLIED IN A NARROW, GRUDGING
MANNER.  ACCORDINGLY WE VIEW SECS. 7(A), 3(G) AND 3(J) OF THE ACT AS
NECESSARILY INDICATIVE OF A CONGRESSIONAL INTENTION TO GUARANTEE EITHER
REGULAR OR OVERTIME COMPENSATION FOR ALL ACTUAL WORK OR EMPLOYMENT.  TO
HOLD THAT AN EMPLOYER MAY VALIDLY COMPENSATE HIS EMPLOYEES FOR ONLY A
FRACTION OF THE TIME CONSUMED IN ACTUAL LABOR WOULD BE INCONSISTENT
WITH THE VERY PURPOSE AND STRUCTURE OF THOSE SECTIONS OF THE ACT.  IT
IS VITAL, OF COURSE, TO DETERMINE FIRST THE EXTENT OF THE ACTUAL
WORKWEEK.  ONLY AFTER THIS IS DONE CAN THE MINIMUM WAGE AND MAXIMUM
HOUR REQUIREMENTS OF THE ACT BE EFFECTIVELY APPLIED.  AND, IN THE
ABSENCE OF A CONTRARY LEGISLATIVE EXPRESSION, WE CANNOT ASSUME THAT
CONGRESS HERE WAS REFERRING TO WORK OR EMPLOYMENT OTHER THAN AS THOSE
WORDS ARE COMMONLY USED - AS MEANING PHYSICAL OR MENTAL EXERTION
(WHETHER BURDENSOME OR NOT) CONTROLLED OR REQUIRED BY THE EMPLOYER AND
PURSUED NECESSARILY AND PRIMARILY FOR THE BENEFIT OF THE EMPLOYER AND
HIS BUSINESS.  FN11 

VIEWING THE FACTS OF THIS CASE AS FOUND BY BOTH COURTS BELOW IN THE
LIGHT OF THE FOREGOING CONSIDERATIONS, WE ARE UNWILLING TO CONCLUDE
THAT THE UNDERGROUND TRAVEL IN PETITIONERS' IRON ORE MINES CANNOT BE
CONSTRUED AS WORK OR EMPLOYMENT WITHIN THE MEANING OF THE ACT.  THE
EXACTING AND DANGEROUS CONDITIONS IN THE MINE SHAFTS STAND AS MUTE,
UNANSWERABLE PROOF THAT THE JOURNEY FROM AND TO THE PORTAL INVOLVES
CONTINUOUS PHYSICAL AND MENTAL EXERTION AS WELL AS HAZARDS TO LIFE AND
LIMB.  AND THIS COMPULSORY TRAVEL OCCURS ENTIRELY ON PETITIONERS'
PROPERTY AND IS AT ALL TIMES UNDER THEIR STRICT CONTROL AND
SUPERVISION. 

SUCH TRAVEL, FURTHERMORE, IS NOT PRIMARILY UNDERTAKEN FOR THE
CONVENIENCE OF THE MINERS AND BEARS NO RELATION WHATEVER TO THEIR NEEDS
OR TO THE DISTANCE BETWEEN THEIR HOMES AND THE MINES.  FN12  RATHER THE
TRAVEL TIME IS SPENT FOR THE BENEFIT OF PETITIONERS AND THEIR IRON ORE
MINING OPERATIONS.  THE EXTRACTION OF ORE FROM THESE MINES BY ITS VERY
NATURE NECESSITATES DANGEROUS TRAVEL IN PETITIONERS' UNDERGROUND SHAFTS
IN ORDER TO REACH THE WORKING FACES, WHERE PRODUCTION ACTUALLY OCCURS. 
SUCH HAZARDOUS TRAVEL IS THUS ESSENTIAL TO PETITIONERS' PRODUCTION.  IT
MATTERS NOT THAT SUCH TRAVEL IS, IN A STRICT SENSE, A NONPRODUCTIVE
BENEFIT.  NOTHING IN THE STATUTE OR IN REASON DEMANDS THAT EVERY MOMENT
OF AN EMPLOYEE'S TIME DEVOTED TO THE SERVICE OF HIS EMPLOYER SHALL BE
DIRECTLY PRODUCTIVE.  SECTION 3(J) OF THE ACT EXPRESSLY PROVIDES THAT
IT IS SUFFICIENT IF AN EMPLOYEE IS ENGAGED IN A PROCESS OR OCCUPATION
NECESSARY TO PRODUCTION.  HENCE EMPLOYEES ENGAGED IN SUCH NECESSARY BUT
NOT DIRECTLY PRODUCTIVE ACTIVITIES AS WATCHING AND GUARDING A BUILDING,
FN13  WAITING FOR WORK,  FN14  AND STANDING BY ON CALL  FN15  HAVE
BEEN HELD TO BE ENGAGED IN WORK NECESSARY TO PRODUCTION AND ENTITLED TO
THE BENEFITS OF THE ACT.  IRON ORE MINERS TRAVELING UNDERGROUND ARE NO
LESS ENGAGED IN A "PROCESS OR OCCUPATION" NECESSARY TO ACTUAL
PRODUCTION.  THEY DO MORE THAN "STAND AND WAIT," MISSOURI, K. & T. RY.
CO. V. UNITED STATES, 231 U.S. 112, 119.  CF. BOUNTIFUL BRICK CO. V.
GILES, 276 U.S. 154, 158.  THEIRS IS A FOSSORIAL ACTIVITY BEARING ALL
THE INDICIA OF HARD LABOR. 

THE CONCLUSION THAT UNDERGROUND TRAVEL IN IRON ORE MINES IS WORK HAS
ALSO BEEN REACHED BY THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION. 
ON MARCH 17, 1941, HE APPROVED AN INFORMAL REPORT OF HIS REPRESENTATIVE
BASED UPON AN INVESTIGATION OF THE "HOURS WORKED" IN UNDERGROUND METAL
MINES IN THE UNITED STATES.  THE REPORT CONCLUDED, IN PART, THAT "THE
WORKDAY IN UNDERGROUND METAL MINING STARTS WHEN THE MINER REPORTS FOR
DUTY AS REQUIRED AT OR NEAR THE COLLAR (PORTAL) OF THE MINE AND ENDS
WHEN HE REACHES THE COLLAR AT THE END OF THE SHIFT."  SEE ALSO SUNSHINE
MINING CO. V. CARVER, 41 F.SUPP.  60.  IN ADDITION, STATUTES OF SEVERAL
IMPORTANT METAL MINING STATES PROVIDE THAT THE EIGHT-HOUR PER DAY
LIMITATION UPON WORK INCLUDES TRAVEL UNDERGROUND.  FN16    PETITIONERS,
HOWEVER, RELY MAINLY UPON THE ALLEGED "IMMEMORIAL CUSTOM AND AGREEMENTS
ARRIVED AT BY THE PRACTICE OF COLLECTIVE BARGAINING" WHICH ARE SAID TO
ESTABLISH "THE 'FACE TO FACE' METHOD AS THE STANDARD AND MEASURE FOR
COMPUTING WORKING TIME IN THE IRON ORE INDUSTRY."  THEY FURTHER CLAIM
THAT SINCE THE FAIR LABOR STANDARDS ACT CONTAINS NO SPECIFIC PROVISION
REGARDING UNDERGROUND TRAVEL IN MINES, CONGRESS MUST BE PRESUMED TO
HAVE INTENDED TO PERPETUATE EXISTING CUSTOMS OR TO LEAVE THE MATTER TO
BE WORKED OUT THROUGH THE PROCESS OF COLLECTIVE BARGAINING. 

THE SHORT ANSWER IS THAT THE DISTRICT COURT WAS UNABLE TO FIND FROM
THE EVIDENCE THAT ANY SUCH "IMMEMORIAL" CUSTOM OR COLLECTIVE BARGAINING
AGREEMENTS EXISTED.  THAT COURT, IN MAKING ITS FINDINGS, PROPERLY
DIRECTED ITS ATTENTION SOLELY TO THE EVIDENCE CONCERNING PETITIONERS'
IRON ORE MINES AND DISREGARDED THE CUSTOMS AND CONTRACTS IN THE COAL
MINING INDUSTRY.  THERE WAS AMPLE EVIDENCE THAT PRIOR TO THE CRUCIAL
DATE OF THE ENACTMENT OF THE STATUTE, THE PROVISIONS IN PETITIONERS'
CONTRACTS WITH THEIR EMPLOYEES RELATING TO A FORTY HOUR WORKWEEK "AT
THE USUAL WORKING PLACE" BORE NO RELATION TO THE AMOUNT OF TIME
ACTUALLY WORKED OR THE COMPENSATION RECEIVED.  INSTEAD, WORKING TIME
AND PAYMENT APPEAR TO HAVE BEEN RELATED TO THE AMOUNT OF IRON ORE MINED
EACH DAY.  HENCE SUCH CONTRACT PROVISIONS DEFINING THE WORKWEEK ARE OF
LITTLE IF ANY VALUE IN DETERMINING THE WORKWEEK AND COMPENSATION UNDER
A STATUTE WHICH REQUIRES THAT THEY BE DIRECTLY RELATED TO THE ACTUAL
WORK PERFORMED. 

LIKEWISE THERE WAS SUBSTANTIAL, IF NOT CONCLUSIVE, EVIDENCE THAT
PRIOR TO 1938 PETITIONERS RECOGNIZED NO INDEPENDENT LABOR UNIONS AND
ENGAGED IN NO BONA FIDE COLLECTIVE BARGAINING WITH AN EYE TOWARD
REACHING AGREEMENTS ON THE WORKWEEK.  CONTRACTS WITH COMPANY-DOMINATED
UNIONS AND DISCRIMINATORY ACTIONS TOWARD THE INDEPENDENT UNIONS ARE
POOR SUBSTITUTES FOR "CONTRACTS FAIRLY ARRIVED AT THROUGH THE PROCESS
OF COLLECTIVE BARGAINING."  THE WAGE PAYMENTS AND WORK ON A TONNAGE
BASIS, AS WELL AS THE CONTRACT PROVISIONS AS TO THE WORKWEEK, WERE ALL
DICTATED BY PETITIONERS.  THE FUTILE EFFORTS BY THE MINERS TO SECURE AT
LEAST PARTIAL COMPENSATION FOR THEIR TRAVEL TIME AND THEIR
DISSATISFACTION WITH EXISTING ARRANGEMENTS, MOREOVER, NEGATIVE THE
CONCLUSION THAT THERE WAS ANY REAL CUSTOM AS TO THE WORKWEEK AND
COMPENSATION THEREFOR.  A VALID CUSTOM CANNOT BE BASED ON SO TURBULENT
AND DISCORDANT A HISTORY; IT REQUIRES SOMETHING MORE THAN UNILATERAL
AND ARBITRARY IMPOSITION OF WORKING CONDITIONS.  FN17  WE THUS CANNOT
SAY THAT THE DISTRICT COURT'S FINDINGS AS TO CUSTOM AND CONTRACT ARE SO
CLEARLY ERRONEOUS AS TO COMPEL US TO DISREGARD THEM. 

BUT IN ANY EVENT IT IS IMMATERIAL THAT THERE MAY HAVE BEEN A PRIOR
CUSTOM OR CONTRACT NOT TO CONSIDER CERTAIN WORK WITHIN THE COMPASS OF
THE WORKWEEK OR NOT TO COMPENSATE EMPLOYEES FOR CERTAIN PORTIONS OF
THEIR WORK.  THE FAIR LABOR STANDARDS ACT WAS NOT DESIGNED TO CODIFY OR
PERPETUATE THOSE CUSTOMS AND CONTRACTS WHICH ALLOW AN EMPLOYER TO CLAIM
ALL OF AN EMPLOYEE'S TIME WHILE COMPENSATING HIM FOR ONLY A PART OF IT.
CONGRESS INTENDED, INSTEAD, TO ACHIEVE A UNIFORM NATIONAL POLICY OF
GUARANTEEING COMPENSATION FOR ALL WORK OR EMPLOYMENT ENGAGED IN BY
EMPLOYEES COVERED BY THE ACT.  FN18  ANY CUSTOM OR CONTRACT FALLING
SHORT OF THAT BASIC POLICY, LIKE AN AGREEMENT TO PAY LESS THAN THE
MINIMUM WAGE REQUIREMENTS, CANNOT BE UTILIZED TO DEPRIVE EMPLOYEES OF
THEIR STATUTORY RIGHTS.  CF. OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S.
572; HOLDEN V. HARDY, 169 U.S. 366.  SEE ALSO LOUISVILLE & NASHVILLE R.
CO. V. MOTTLEY, 219 U.S. 467; J.I. CASE CO. V. LABOR BOARD, 321 U.S.
332; ORDER OF RAILROAD TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, 321 U.S.
342. 

THIS DOES NOT FORECLOSE, OF COURSE, REASONABLE PROVISIONS OF CONTRACT
OR CUSTOM GOVERNING THE COMPUTATION OF WORK HOURS WHERE PRECISELY
ACCURATE COMPUTATION IS DIFFICULT OR IMPOSSIBLE.  NOR ARE WE CONCERNED
HERE WITH THE EFFECT THAT CUSTOM AND CONTRACT MAY HAVE IN BORDERLINE
CASES WHERE THE OTHER FACTS GIVE RISE TO SERIOUS DOUBTS AS TO WHETHER
CERTAIN ACTIVITY OR NON-ACTIVITY CONSTITUTES WORK OR EMPLOYMENT.  IT IS
SUFFICIENT IN THIS CASE THAT THE FACTS RELATING TO UNDERGROUND TRAVEL
IN IRON ORE MINES LEAVE NO UNCERTAINTY AS TO ITS CHARACTER AS WORK. 
THE ACT THUS REQUIRES THAT APPROPRIATE COMPENSATION BE PAID FOR SUCH
WORK.  ANY OTHER CONCLUSION WOULD DEPRIVE THE IRON ORE MINERS OF THE
JUST REMUNERATION GUARANTEED THEM BY THE ACT FOR CONTRIBUTING THEIR
TIME, LIBERTY AND STRENGTH PRIMARILY FOR THE BENEFIT OF OTHERS. 

THE JUDGMENT OF THE COURT BELOW IS ACCORDINGLY AFFIRMED. 

FN1  THESE ACTIONS WERE INSTITUTED UNDER THE FEDERAL DECLARATORY
JUDGMENTS ACT, 48 STAT. 955, SEC. 274D, 28 U.S.C. SEC. 400.  THEY WERE
CONSOLIDATED FOR TRIAL PURPOSES AND THE DISTRICT COURT ENTERED A SINGLE
JUDGMENT. 

FN2  THE "WORKING FACE" IS THE PLACE IN THE MINE WHERE THE MINERS
ACTUALLY DRILL AND LOAD ORE.  THE "FACE TO FACE" BASIS OF COMPENSATION,
ADVOCATED BY PETITIONERS, INCLUDES ONLY THE TIME SPENT AT THE WORKING
FACE.  THE "PORTAL TO PORTAL" BASIS, PROPOSED BY RESPONDENTS, INCLUDES
TIME SPENT IN TRAVELING BETWEEN THE PORTAL OR ENTRANCE TO THE MINE AND
THE WORKING FACE AND BACK AGAIN, AS WELL AS THE TIME SPENT AT THE
WORKING FACE. 

FN3  SINCE MAY 5, 1941, PETITIONERS HAVE PAID THEIR MINERS FOR TRAVEL
TIME PURSUANT TO CONTRACT IN COMPLIANCE WITH THE OPINION OF THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION THAT UNDERGROUND TRAVEL IN
IRON ORE MINES IS WORK WITHIN THE MEANING OF THE ACT. 

FN4  NO REVIEW HAS BEEN SOUGHT OF THE EXCLUSION FROM THE WORKWEEK OF
THE ACTIVITIES AT THE SURFACE.  WE THEREFORE DO NOT DISCUSS THAT ISSUE
IN THIS CASE.  ALEXANDER V. COSDEN PIPE LINE CO., 290 U.S. 484, 487,
AND CASES CITED. 

FN5  THE TENNESSEE COAL, IRON & RAILROAD COMPANY HAS EIGHT MINES;
SLOSS-SHEFFIELD STEEL & IRON COMPANY, TWO MINES; AND REPUBLIC STEEL
CORPORATION, TWO MINES. 

FN6  AS THE DISTRICT COURT POINTED OUT, THE CONDITIONS SET FORTH BY
THE RECORD ARE NOT INTENDED TO BE USED TO CENSURE PETITIONERS' MANNER
OF MAINTENANCE OF THEIR MINES, "FOR THESE CONDITIONS MAY WELL BE NORMAL
CONDITIONS IN IRON ORE MINES AND PRACTICALLY INEVITABLE."  MOREOVER,
THE RECORD INDICATES THAT THE SPAULDING MINE OF THE REPUBLIC COMPANY
HAS BEEN OPERATED ONLY INTERMITTENTLY AND EXPERIMENTALLY DURING THE
LAST 20 YEARS AND MANY OF THE CONDITIONS IN THE OTHER MINES ARE NOT
PRESENT.  THE ORE IS CLOSE TO THE SURFACE AND MINERS CAN WALK ALL THE
WAY TO THE WORKING FACES. 

FN7  ONE OF THE TENNESSEE COMPANY'S SUPERINTENDENTS STATED THAT
"WHENEVER A MAN COMES TO THE MINE LATE, DRAGGING ALONG AND ENCOURAGES
OTHERS TO BE LATE, HE IS SETTING A BAD EXAMPLE.  I WANT THIS UNDERSTOOD
THOROUGHLY - MEN MUST BE ON TIME; WE DON'T CARE WHETHER THEY WORK HERE
OR NOT, BUT IF THEY WANT TO WORK HERE THEY WILL HAVE TO BE ON TIME OR
ELSE THEY WILL BE DISCIPLINED, EVEN TO DISCHARGE." 

FN8  THE USE OF THE BATH HOUSE, OR CHANGE HOUSE, IS OPTIONAL.  SOME
MINERS CHANGE THEIR CLOTHES AT HOME AND MAKE NO USE OF THE BATH HOUSES
FURNISHED BY PETITIONERS. 

FN9  AN ORE SKIP IS AN ORDINARY FOUR-WHEELED ORE BOX CAR MADE OF
STEEL.  IT IS NORMALLY USED FOR TRANSPORTING ORE AND ITS FLOOR IS OFTEN
COVERED WITH MUCK FROM SUCH HAULINGS.  WHEN MEN ARE RIDING IN THE CAR
IT IS KNOWN AS A "MAN SKIP TRIP."  IT IS USED FOR SUCH PURPOSES IN THE
MINES OF THE TENNESSEE COMPANY AND THE REPUBLIC COMPANY. 

FN10  A REGULAR MAN TRIP IS A SPECIALLY CONSTRUCTED SERIES OF CARS. 
EACH CAR IS ABOUT EIGHT FEET LONG AND RESEMBLES A STAIRWAY.  FIVE MEN
SIT ON EITHER SIDE OF THE CAR FACING OUTWARDS, BACK TO BACK WITH FIVE
MEN ON THE OTHER SIDE.  THE MAN TRIP USED IN THE SLOSS COMPANY MINES
CONSISTS OF SIX SUCH CARS. 

FN11  WEBSTER'S NEW INTERNATIONAL DICTIONARY (2D ED., UNABRIDGED)
DEFINES WORK AS FOLLOWS:  "1.  TO EXERT ONESELF PHYSICALLY OR MENTALLY
FOR A PURPOSE, ESP., IN COMMON SPEECH, TO EXERT ONESELF THUS IN DOING
SOMETHING UNDERTAKEN CHIEFLY FOR GAIN, FOR IMPROVEMENT IN ONE'S
MATERIAL, INTELLECTUAL, OR PHYSICAL CONDITION, OR UNDER COMPULSION OF
ANY KIND, AS DISTINGUISHED FROM SOMETHING UNDERTAKEN PRIMARILY FOR
PLEASURE, SPORT, OR IMMEDIATE GRATIFICATION, OR AS MERELY INCIDENTAL TO
OTHER ACTIVITIES (AS A DISAGREEABLE WALK INVOLVED IN GOING TO SEE A
FRIEND, OR THE PACKING OF A TRUNK FOR A PLEASURE TRIP)  ...  " THE WORD
"EMPLOY" IS DEFINED AS FOLLOWS:  "2.  TO MAKE USE OF THE SERVICES OF;
TO GIVE EMPLOYMENT TO; TO ENTRUST WITH SOME DUTY OR BEHEST." 

FN12  CF. DOLLAR V. CADDO RIVER LUMBER CO., 43 F.SUPP.  822; SIRMON
V. CRON & GRACEY DRILLING CORP., 44 F.SUPP.  29; BULOT V. FREEPORT
SULPHUR CO., 45 F.SUPP.  380; WALLING V. PEAVY-WILSON LUMBER CO., 49
F.SUPP.  846. 

FN13  WALTON V. SOUTHERN PACKAGE CORP., 320 U.S. 540; KIRSCHBAUM CO.
V. WALLING, 316 U.S. 517. 

FN14  FLEMING V. NORTH GEORGIA MFG. CO., 33 F.SUPP.  1005; TRAVIS V.
RAY, 41 F.SUPP.  6. 

FN15  WALLING V. ALLIED MESSENGER SERVICE, 47 F.SUPP.  773. 

FN16  ARIZONA AND UTAH STATUTES SPECIFICALLY INCLUDE ALL THE TRAVEL
TIME WITHIN THE EIGHT-HOUR LIMITATION.  ARIZ. CODE ANN. (1939), VOL. 4,
SEC. 56-115; UTAH CODE ANN. (1943), SEC. 49-3-2.  THE SUPREME COURT OF
MONTANA HAS CONSTRUED MONT. CONST., ART. 18, SEC. 4, AND MONT. REV.
CODE (1935), SEC. 3071, WHICH PROVIDE FOR EIGHT HOURS OF WORK PER DAY
IN UNDERGROUND MINES, TO INCLUDE ALL TRAVEL TIME, BUTTE MINERS' UNION
NO. 1 V. ANACONDA COPPER MINING CO., 112 MONT. 418, 118 P.2D 148. 
NEVADA COMP. LAWS (1929), SEC. 10237, PROVIDES THAT THE LIMITATION
SHALL APPLY TO TRAVEL ONE WAY.  BUT WYOMING REV. STAT. (1931), SEC. 63
107, SPECIFICALLY EXCLUDES UNDERGROUND TRAVEL FROM THE LIMITATION; A
LIKE RESULT HAS BEEN REACHED BY INTERPRETATION OF CALIFORNIA STATS.
1909, CH. 181, P. 279, IN MATTER OF APPLICATION OF MARTIN, 157 CAL. 59,
106 P. 238.  ALABAMA AND TENNESSEE FIX NO LIMITATION ON HOURS, WHILE
MAXIMUM HOUR STATUTES OF OTHER METAL MINING STATES ARE INCONCLUSIVE
INSOFAR AS THE INCLUSION OF TRAVEL TIME IS CONCERNED.  SEE ALSO SEC.
5(2) OF THE ENGLISH METALLIFEROUS MINES REGULATION ACT (1872), 35 & 36
VICT., C. 77, WHICH PROVIDES THAT "THE PERIOD OF EACH EMPLOYMENT SHALL
BE DEEMED TO BEGIN AT THE TIME OF LEAVING THE SURFACE, AND TO END AT
THE TIME OF RETURNING TO THE SURFACE." 

FN17  BLACKSTONE HAS SAID THAT ONE OF THE REQUISITES OF A VALID
CUSTOM IS THAT "IT MUST HAVE BEEN PEACEABLE, AND ACQUIESCED IN; NOT
SUBJECT TO CONTENTION AND DISPUTE.  FOR AS CUSTOMS OWE THEIR ORIGINAL
TO COMMON CONSENT, THEIR BEING IMMEMORIALLY DISPUTED, EITHER AT LAW OR
OTHERWISE, IS A PROOF THAT SUCH CONSENT WAS WANTING."  1 COMMENTARIES
77.  SEE ALSO POLLOCK, FIRST BOOK OF JURISPRUDENCE, 283(6TH ED.). 

FN18  CONGRESS WAS NOT UNAWARE OF THE EFFECT THAT COLLECTIVE
BARGAINING CONTRACTS MIGHT HAVE ON OVERTIME PAY.  IT EXPRESSLY DECIDED
TO GIVE EFFECT TO TWO KINDS OF COLLECTIVE AGREEMENTS, AS SPECIFIED IN
SEC. 7(B)(1) AND (2) OF THE ACT.  CF. SEC. 8(C).  IT THUS DID NOT
INTEND THAT OTHER COLLECTIVE AGREEMENTS SHOULD RELIEVE EMPLOYERS FROM
PAYING FOR OVERTIME IN EXCESS OF AN ACTUAL WORKWEEK OF 40 HOURS,
REGARDLESS OF THE PROVISIONS OF SUCH CONTRACTS. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

THE LEGAL QUESTION ON THE RECORD BEFORE US LIES WITHIN A NARROW
COMPASS.  SECTION 7 OF THE FAIR LABOR STANDARDS ACT COMMANDS THE
PAYMENT OF COMPENSATION AT A RATE OF NOT LESS THAN ONE AND ONE-HALF
TIMES THE REGULAR RATE FOR EVERY EMPLOYEE UNDER THE STATUTE WHO IS
ENGAGED "FOR A WORKWEEK" LONGER THAN FORTY-FOUR OR FORTY-TWO HOURS
DURING THE FIRST OR THE SECOND YEAR, RESPECTIVELY, AFTER THE EFFECTIVE
DATE OF THE SECTION AND FORTY HOURS THEREAFTER.  52 STAT. 1060, 1063,
29 U.S.C. SEC. 207.  CONGRESS DID NOT EXPLICITLY DEFINE "WORKWEEK" AND
THERE IS NOTHING IN THE AVAILABLE MATERIALS PERTINENT TO CONSTRUCTION
THAT WARRANTS A FINDING THAT "WORKWEEK," AS APPLIED TO THE WORKERS IN
THE IRON ORE INDUSTRY, HAD SO SETTLED A MEANING AT THE TIME OF THE
ENACTMENT OF THE FAIR LABOR STANDARDS ACT AS TO BE DEEMED INCORPORATED
BY REFERENCE.  AS A RESULT, "WORKWEEK" IN THIS STATUTE, AS APPLIED TO
WORKERS IN THIS INDUSTRY AND ON THIS RECORD, HAS NO TECHNICAL MEANING,
THAT IS, A MEANING SO WELL KNOWN TO THOSE IN THIS PARTICULAR INDUSTRY
AS TO BE APPLIED BY COURTS IN ENFORCING THE STATUTE WHEN INVOKED BY MEN
IN THE INDUSTRY.  FOR PURPOSES OF THIS CASE, IN ANY EVENT, WHEN
CONGRESS USED THE WORD "WORKWEEK," IT USED IT COLLOQUIALLY - THE TERM
CARRIES MERELY THE MEANING OF COMMON UNDERSTANDING. 

AN ADMINISTRATIVE AGENCY FOR PRELIMINARY ADJUDICATION OF ISSUES
ARISING UNDER THE WAGES AND HOURS LAW, LIKE THAT ESTABLISHED BY THE
NATIONAL LABOR RELATIONS ACT, WAS NOT PROVIDED BY CONGRESS.  AND SO,
THE APPLICATION OF THIS COLLOQUIAL CONCEPT "WORKWEEK" TO THE
MULTIFARIOUS SITUATIONS IN AMERICAN INDUSTRY WAS LEFT BY CONGRESS FOR
ASCERTAINMENT BY JUDICIAL PROCEEDINGS.  THESE FACTS ARE TO BE FOUND
EITHER BY A JURY OR, AS IN THIS CASE, BY A JUDGE SITTING WITHOUT A
JURY.  AND SO HERE IT WAS THE JUDGE'S DUTY TO DETERMINE WHAT TIME AND
ENERGY ON THE PART OF THE EMPLOYEES INVOLVED IN THIS SUIT CONSTITUTED A
"WORKWEEK" OF THESE EMPLOYEES OF THE PETITIONERS.  AFTER A TRIAL WHICH
LASTED FOR ABOUT THREE WEEKS, DURING WHICH TESTIMONY COVERING 2,643
PAGES WAS HEARD AND VOLUMINOUS EXHIBITS WERE INTRODUCED, THE DISTRICT
COURT MADE ITS FINDINGS OF FACT.  A JUDGMENT FOR THE EMPLOYEES BASED ON
THESE FINDINGS WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  40
F.SUPP.  4; 135 F.2D 320.    WE HAVE THEN A JUDGMENT OF TWO COURTS
BASED ON FINDINGS WITH AMPLE EVIDENCE TO WARRANT SUCH FINDINGS. 
AFFIRMANCE BY THIS COURT IS THEREFORE DEMANDED. 

MR. JUSTICE JACKSON, CONCURRING: 

THIS CASE IN MY VIEW PROBABLY DOES NOT PRESENT ANY QUESTION OF LAW
OR, IF SO, IT IS ONE WITH A VERY OBVIOUS ANSWER.  WHEN CONGRESS IN THE
FAIR LABOR STANDARDS ACT REFERRED TO "A WORKWEEK LONGER THAN FORTY
HOURS," IT CONSIDERED, I ASSUME, THAT WHAT WAS A WORKWEEK IN FACT
SHOULD BE A WORKWEEK IN LAW.  THEREFORE, THE DETERMINATION OF ANY
PARTICULAR CASE DOES NOT GOVERN ANY OTHER, FOR EACH ESTABLISHMENT AND
INDUSTRY STANDS ON ITS OWN CONDITIONS. 

A SEASONED AND WISE RULE OF THIS COURT MAKES CONCURRENT FINDINGS OF
TWO COURTS BELOW FINAL HERE IN THE ABSENCE OF VERY EXCEPTIONAL SHOWING
OF ERROR.  GOODYEAR TIRE & RUBBER CO. V. RAY-O-VAC CO., 321 U.S. 275;
DISTRICT OF COLUMBIA V. PACE, 320 U.S. 698; BAKER V. SCHOFIELD, 243
U.S. 114, 118; WILLIAMS MANUFACTURING CO. V. UNITED SHOE MACHINERY
CORP., 316 U.S. 364, 367. 

IN THESE CASES ORE MINING COMPANIES SOUGHT DECLARATORY JUDGMENTS THAT
MINERS' TRAVEL TIME IN THE SHAFTS GETTING TO AND FROM ACTUAL MINING
OPERATIONS, AND SOME OTHER TIME, IS NOT TO BE COUNTED IN THE WORKWEEK
AS DEFINED FOR OVERTIME PURPOSES IN THE FAIR LABOR STANDARDS ACT.  THEY
ALLEGED THAT THE CUSTOM OF THEIR MINES EXCLUDED IT, BUT THE TRIAL COURT
CONSIDERED ALL THE EVIDENCE AND SAID, "THE EVIDENCE HAS DISCLOSED NO
SUCH CUSTOM."  THE COMPANIES ALSO CONTENDED THAT THE ACTIVITY DURING
TRAVEL IS NOT IN THE NATURE OF WORK.  AFTER HEARING A MASS OF
CONFLICTING TESTIMONY THE TRIAL COURT SAID OF THESE ACTIVITIES, "THEY
ARE PERFORMED ON THE PREMISES OF THE EMPLOYER, IN THE FURTHERANCE OF
THE EMPLOYER'S BUSINESS, WITH NO BENEFIT TO THE EMPLOYEE (EXCEPT TO AID
HIM IN THE PERFORMANCE OF WORK FOR THE EMPLOYER), UNDER CONDITIONS
CREATED AND CONTROLLED BY THE EMPLOYER, AND THEY INVOLVE RESPONSIBILITY
TO THE EMPLOYER AND PHYSICAL EXERTION, EVEN THOUGH NOT BURDENSOME, ON
THE PART OF THE EMPLOYEE.  NO CHARACTERISTIC OF WORK IS LACKING." 
THESE WERE FOUND TO BE THE FACTS BY THE TWO COURTS BELOW AND, WHATEVER
WE MIGHT DECIDE IF WE WERE A TRIAL COURT HEARING THE EVIDENCE IN THE
FIRST INSTANCE, WE CANNOT WITH OUR LIMITED REVIEW HOLD THEM WRONG ON
THIS RECORD. 

IF THESE FACTS ARE ACCEPTED, THE RULING THAT SUCH TRAVEL TIME IS PART
OF THE WORKWEEK SEEMS MANIFEST.  I WOULD AFFIRM ON THESE CONTROLLING
FACTS. 

MR. JUSTICE ROBERTS: 

THE QUESTION FOR DECISION IN THIS CASE SHOULD BE APPROACHED NOT ON
THE BASIS OF ANY BROAD HUMANITARIAN PREPOSSESSIONS WE MAY ALL
ENTERTAIN, NOT WITH A DESIRE TO CONSTRUE LEGISLATION SO AS TO
ACCOMPLISH WHAT WE DEEM WORTHY OBJECTS, BUT IN THE TRADITIONAL AND, IF
WE ARE TO HAVE A GOVERNMENT OF LAWS, THE ESSENTIAL ATTITUDE OF
ASCERTAINING WHAT CONGRESS HAS ENACTED RATHER THAN WHAT WE WISH IT HAD
ENACTED. 

MUCH OF WHAT IS SAID IN THE OPINION, IN MY VIEW, DISREGARDS THIS
FUNDAMENTAL FUNCTION OF THE JUDICIAL PROCESS AND RELIES ON
CONSIDERATIONS WHICH HAVE NO PLACE IN THE SOLUTION OF THE ISSUE
PRESENTED. 

WHAT DID CONGRESS MEAN WHEN IT SAID, IN SEC. 7(A) OF THE FAIR LABOR
STANDARDS ACT, THAT "NO EMPLOYER SHALL  ...  EMPLOY ANY OF HIS
EMPLOYEES  ...  FOR A WORKWEEK LONGER THAN FORTY HOURS ...  UNLESS SUCH
EMPLOYEE RECEIVES COMPENSATION" FOR OVERTIME AT A SPECIFIED RATE?  NO
OTHER ISSUE IS PRESENTED. 

THE MATERIALS FOR DECISION ARE THOSE TO WHICH RESORT ALWAYS HAS BEEN
HAD IN ASCERTAINING THE MEANING OF A STATUTE.  THEY ARE THE MISCHIEF TO
BE REMEDIED, THE PURPOSE OF CONGRESS IN THE LIGHT OF THE MISCHIEF, AND
THE MEANS ADOPTED TO PROMOTE THAT PURPOSE.  THESE ARE NOT OBSCURE IN
THIS INSTANCE. 

THE COMMITTE REPORTS UPON THE BILL WHICH BECAME THE FAIR LABOR
STANDARDS ACT  FN1  MAKE IT CLEAR THAT THE SOLE PURPOSE WAS TO INCREASE
EMPLOYMENT, TO REQUIRE A FAIR DAY'S PAY FOR A FAIR DAY'S WORK BY
RAISING THE WAGES OF THE MOST POORLY PAID WORKERS AND REDUCING THE
HOURS OF THOSE MOST OVERWORKED, AND THUS CORRECT INEQUALITIES IN THE
COST OF PRODUCING GOODS AND PREVENT UNFAIR COMPETITION IN COMMERCE. 
THE REPORTS DISCLOSE NO OTHER PURPOSE.  THE CONGRESSIONAL FINDINGS AND
DECLARATION OF POLICY EMBODIED IN SEC. 2(A)  FN2  EXHIBIT NO INTENT TO
DEAL WITH ANY MATTER OTHER THAN SUBSTANDARD CONDITIONS IN INDUSTRY
STEMMING FROM WAGE AND HOUR PRACTICES.  THE ACT WILL BE SEARCHED IN
VAIN FOR A MANDATE RESPECTING ANY SUBJECT OTHER THAN MINIMUM WAGES AND
MAXIMUM HOURS OF WORK.  THIS COURT HAS CONSTRUED IT AS DEALING ONLY
WITH THESE SUBJECTS.  FN3 

IN THIS SETTING, THEREFORE, WE ARE TO DETERMINE WHAT CONGRESS MEANT
BY THE TERM "WORKWEEK" WHEN IT PRESCRIBED THE MAXIMUM NUMBER OF HOURS
OF LABOR AN EMPLOYER MIGHT REQUIRE TO BE RENDERED WITHIN ANY WEEK AT
THE STANDARD WAGE.  THE ACT DOES NOT DEFINE "WORKWEEK," FOR THE EVIDENT
REASON THAT CONGRESS BELIEVED IT HAD A CONVENTIONAL MEANING WHICH ALL
WOULD UNDERSTAND AND TO WHICH ALL COULD CONFORM THEIR PRACTICES.  THE
TERM COMBINES TWO WORDS IN COMMON USE.  A WEEK IS ANY PERIOD OF SEVEN
DAYS.  IN ACCEPTED USAGE A MAN'S WORK MEANS THAT WHICH HE DOES FOR HIS
EMPLOYER AS THE CONSIDERATION OF THE WAGE HE RECEIVES.  THE TERM IS
OFTEN USED IN A MORE GENERAL SENSE AS WHEN ONE IS ASKED WHAT HE IS
DOING AND REPLIES "I AM WORKING FOR JONES."  OF COURSE HE DOES NOT MEAN
THAT JONES IS PAYING HIM FOR EACH HOUR OF EVERY WEEK OF HIS LIFE.  MEN
ARE NOT COMMONLY PAID FOR THE TIME THEY SLEEP, THE TIME THEY EAT, OR
THE TIME THEY TAKE TO GO TO, AND RETURN FROM, THEIR EMPLOYER'S
PREMISES.  THUS, ALTHOUGH THE PHRASE "WORK" MAY REFER TO THE CALLING
PURSUED, OR THE IDENTITY OF THE EMPLOYER, IT IS PLAINLY NOT SO USED IN
THIS STATUTE.  ITS COLLOCATION WITH THE WORD "WEEK" AND WITH THE
INJUNCTION AS TO MINIMUM PAY, MAXIMUM HOURS, AND OVERTIME FOR EXTRA
WORK, IN ANY WEEK, SHOWS THAT WHAT CONGRESS MEANT BY WORK WAS WHAT I
HAVE ABOVE DESCRIBED, - THE ACTUAL SERVICE RENDERED TO THE EMPLOYER FOR
WHICH HE PAYS WAGES IN CONFORMITY TO CUSTOM OR AGREEMENT. 

IT IS COMMON KNOWLEDGE THAT WHAT CONSTITUTES WORK FOR WHICH PAYMENT
IS TO BE MADE VARIES WITH CUSTOMS AND PRACTICES IN DIFFERENT INDUSTRIES
OR BUSINESSES.  WHERE THE EMPLOYE IS REQUIRED TO REPORT AT HIS
EMPLOYER'S PLACE OF BUSINESS AND GO THENCE TO THE PLACE WHERE HIS
EMPLOYER'S ACTIVITIES ARE PURSUED, IT HAS BEEN THE CUSTOM IN SOME CASES
TO PAY FOR THE TIME SPENT IN GOING FROM THE EMPLOYER'S PLACE OF
BUSINESS TO THE PLACE OF WORK.  IN MANY INDUSTRIES SOME OR ALL OF THE
EMPLOYES ARE REQUIRED TO REPORT AND TO REMAIN AT A GIVEN PLACE AWAITING
A CALL FOR EMERGENCY OR OTHER CASUAL SERVICE AND, ACCORDING TO
UNDERSTANDING, THEY ARE PAID FOR THE HOURS DURING WHICH THEY WAIT AS
WELL AS THOSE IN WHICH THEY ACTUALLY PUT FORTH PHYSICAL OR MENTAL
EFFORT.  THERE CAN BE LITTLE DOUBT THAT CONGRESS EXPECTED THE
PROVISIONS OF THE ACT TO BE FITTED INTO THE PREVAILING PRACTICES AND
UNDERSTANDINGS AS TO WHAT CONSTITUTED WORK IN VARIOUS INDUSTRIES. 

THE ACT DOES NOT PROVIDE THAT THE ADMINISTRATOR OR THE COURTS ARE TO
DEFINE A WORKWEEK IN THE CASE OF EACH EMPLOYER ON SUCH BASIS AS THEY
DEEM RIGHT, REGARDLESS OF THE CUSTOM OF THE INDUSTRY OR OF EXISTING
AGREEMENTS BETWEEN EMPLOYERS AND EMPLOYES.  NOR DOES THE ACT VEST
AUTHORITY IN ADMINISTRATOR OR COURT TO DISREGARD AND SUPERSEDE EXISTING
UNDERSTANDINGS AND PRACTICES AS TO WHAT CONSTITUTES WORK OR THE
WORKWEEK.  THERE IS NOTHING IN THE WORDS OF THE STATUTE OR ITS HISTORY
TO SUGGEST THAT CONGRESS INTENDED, WITHOUT MENTIONING IT, TO CONFER ON
THE ADMINISTRATOR OR THE COURTS SO VAST A POWER OVER THE INDUSTRY OF
THE NATION. 

THE QUESTION IN THIS CASE THEN IS:  WHAT WAS THE WORKWEEK OF IRON
MINERS WHEN THE ACT WAS ADOPTED?  IF THE ANSWER IS PLAIN, THEN, I
SUBMIT, THAT EXISTING WORKWEEK MUST CONTROL IN THE ADMINISTRATION OF
THE STATUTE UNLESS AND UNTIL EMPLOYER AND EMPLOYES, BY CONSENSUAL
ARRANGEMENT, ALTER THE CURRENT PRACTICE. 

THE RECORD PRESENTS NO DISPUTE AS TO THE FACTS.  SOME ARE MATTERS OF
PUBLIC NOTORIETY SUSCEPTIBLE OF JUDICIAL NOTICE; OTHERS ARE CONTAINED
IN OFFERS OF EVIDENCE WHICH THE DISTRICT COURT EXCLUDED AS IRRELEVANT;
OTHERS ARE EXPOSED IN THE PROOFS. 

CONDITIONS OF LABOR IN IRON MINES AND IN COAL MINES ARE SIMILAR.  IN
BOTH, AS THE WORKINGS BECOME DEEPER, THE MEN HAVE FARTHER TO GO TO
REACH THE PLACES AT WHICH THEY LABOR.  THE TIME THUS CONSUMED BY
INDIVIDUAL WORKMEN VARIES IN THE SAME MINE, AND IN DIFFERENT MINES. 
THE CONDITIONS IN THE CHANNELS OF APPROACH TO THE PLACES OF WORK ARE
SOMEWHAT BETTER IN IRON MINES THAN IN COAL MINES.  THE CUSTOM IN COAL
MINES IS, THEREFORE, PERSUASIVE, SINCE SOME OF THE PETITIONERS MAINTAIN
COAL AND IRON MINES IN CLOSE PROXIMITY, AND SINCE THE PRACTICE IN THE
TWO HAS BEEN THE SAME FOR MANY YEARS. 

IN THE PUBLIC ARBITRATION PROCEEDINGS AT BIRMINGHAM, ALABAMA, IN
1903, THE TESTIMONY SHOWED THAT A MINER'S DAY WAS RECKONED "FROM THE
TIME (HE) GETS TO THE FACE OF THE COAL UNTIL HE LEAVES THE FACE OF THE
COAL," AND THAT THE EIGHT HOUR DAY WAS SO MEASURED.  THAT ARBITRATION
RESULTED IN A WAGE AGREEMENT ON THE "FACE TO FACE" BASIS; THAT IS, ON A
WAGE FIXED ACCORDING TO THE TIME THE MINERS WORKED AT THE FACE OF THE
COAL. 

IN 1917 A PUBLIC BOARD OF ARBITRATION, WHOSE AWARD WAS APPROVED BY
THE UNITED STATES FUEL ADMINISTRATOR, FOUND: 

"AN EIGHT HOUR DAY MEANS EIGHT HOURS WORK AT THE USUAL WORKING PLACES
OF ALL CLASSES OF EMPLOYEES.  THIS SHALL BE EXCLUSIVE OF THE TIME
REQUIRED IN REACHING SUCH WORKING PLACES IN THE MORNING AND DEPARTING
FROM THE SAME AT NIGHT." 

IN 1920 THE REPORT AND AWARD OF THE BITUMINOUS COAL COMMISSION, WHICH
WAS MADE THE BASIS OF AGREEMENT BETWEEN OPERATORS AND UNION MINERS,
EMPLOYED THE LANGUAGE JUST QUOTED. 

IN 1933 THE CODE OF FAIR COMPETITION FOR THE BITUMINOUS COAL
INDUSTRY, PROMULGATED BY THE PRESIDENT UNDER THE NATIONAL INDUSTRIAL
RECOVERY ACT, PROVIDED: 

"SEVEN HOURS OF LABOR SHALL CONSTITUTE A DAY'S WORK AND THIS MEANS
SEVEN HOURS WORK AT THE USUAL WORKING PLACES FOR ALL CLASSES OF LABOR,
EXCLUSIVE OF THE LUNCH PERIOD, WHETHER THEY BE PAID ON THE DAY OR THE
TONNAGE OR OTHER PIECEWORK BASIS." 

IN 1933 THE APPALACHIAN AGREEMENT, APPROVED BY THE PRESIDENT,
PROVIDED: 

"EIGHT HOURS OF LABOR SHALL CONSTITUTE A DAY'S WORK.  THE EIGHT-HOUR
DAY MEANS EIGHT HOURS' WORK IN THE MINES AT THE USUAL WORKING PLACES
FOR ALL CLASSES OF LABOR, EXCLUSIVE OF THE LUNCH PERIOD." 

PRIOR TO 1938, THE PETITIONER TENNESSEE COAL, IRON & RAILROAD COMPANY
PAID ITS MINERS EITHER ON A PIECEWORK BASIS OR UPON A SHIFT BASIS, AS
DID THE PETITIONERS SLOSS-SHEFFIELD AND REPUBLIC STEEL.  BUT THE COMMON
UNDERSTANDING OF MEN AND MANAGEMENT WAS THAT, AT FIRST, TEN HOURS AND,
LATER, EIGHT HOURS CONSTITUTED A WORKING DAY.  THIS IS SHOWN BY THE
PROOFS AND THERE IS NO EVIDENCE TO THE CONTRARY. 

ON NUMEROUS OCCASIONS THE MEN WORKING IN THESE MINES CLAIMED, THROUGH
THEIR UNIONS, THAT THEY OUGHT TO BE PAID FOR TRAVEL TIME CONSUMED IN
THE MINES IN GOING TO OR FROM THE FACE WHERE THEY WORKED.  THEIR
DEMANDS FOR PAY FOR TRAVEL TIME ARE ELOQUENT PROOF THAT THEY UNDERSTOOD
THE BASIS ON WHICH THEIR PAY WAS RECKONED AND THAT IT DID NOT INCLUDE
TRAVEL TIME AS WORKING TIME.  NO AGREEMENT TO PAY FOR TRAVEL TIME WAS
MADE AND NO PRACTICE TO PAY FOR IT WAS ADOPTED. 

IN 1934 TENNESSEE MADE AN AGREEMENT WITH THE UNION REPRESENTING ITS
EMPLOYEES, WHICH WAS RENEWED IN 1935, AND AGAIN IN 1936.  IT IS
UNDISPUTED THAT ALL OF THESE AGREEMENTS EXCLUDED PAYMENT FOR TRAVEL
TIME.  ON OCTOBER 6, 1938, BEFORE THE FAIR LABOR STANDARDS ACT WAS IN
EFFECT, A COLLECTIVE BARGAINING AGREEMENT WAS MADE BETWEEN THE
INTERNATIONAL UNION, AFFILIATED WITH THE CIO, AND THE TENNESSEE
COMPANY.  IN THIS AGREEMENT IT WAS PROVIDED: 

"SECTION 4 - HOURS OF WORK.  EIGHT (8) HOURS SHALL CONSTITUTE A DAY'S
WORK AND FORTY (40) HOURS SHALL CONSTITUTE A WEEK'S WORK.  TIME AND ONE
HALF SHALL BE PAID FOR ALL OVERTIME IN EXCESS OF EIGHT (8) HOURS IN ANY
ONE DAY OR FOR ALL OVERTIME IN EXCESS OF FORTY (40) HOURS IN ANY ONE
WEEK. 

"THE EIGHT (8) HOUR DAY MEANS EIGHT HOURS OF WORK IN OR ABOUT THE
MINES AT THE USUAL WORKING PLACES FOR ALL CLASSES OF LABOR, EXCLUSIVE
OF THE LUNCH PERIOD, WHETHER THEY BE PAID BY THE DAY OR BE PAID ON THE
TONNAGE BASIS." 

THIS AGREEMENT REMAINED IN EFFECT UNTIL MAY 5, 1941, WHEN THE
PROVISIONS IN QUESTION WERE ABROGATED PURSUANT TO AN OPINION
PROMULGATED BY THE WAGE AND HOUR ADMINISTRATOR AS HEREINAFTER
DESCRIBED. 

THE CIRCUMSTANCES ARE NOT MATERIALLY DIFFERENT WITH RESPECT TO SLOSS
SHEFFIELD.  THAT COMPANY HAS BARGAINED WITH A UNION REPRESENTING ITS
MINERS SINCE 1934.  SEVERAL TIMES THE UNION MADE A DEMAND FOR PAYMENT
OF TRAVEL TIME BUT THIS WAS NOT GRANTED.  A FORMAL AGREEMENT CONTAINING
THE SAME DEFINITIONS OF WORKWEEK, AND HOURS OF WORK, AS IN THE CASE OF
TENNESSEE, WAS EXECUTED IN 1939 AND RENEWED IN 1940.  THE COMPANY
CONTINUED TO PAY ON THE FACE TO FACE BASIS UNTIL 1941. 

REPUBLIC STEEL HAS HAD NO FORMAL WRITTEN AGREEMENT WITH ITS EMPLOYES,
BUT IT HAS BARGAINED WITH THEIR UNION.  AS EARLY AS 1933 THE UNION
SUGGESTED THAT AN ARRANGEMENT BE MADE WHEREBY THE MEN ENTER THE MINE ON
THEIR OWN TIME AND COME OUT ON COMPANY TIME, BUT THE MATTER WAS NOT
PRESSED.  IT CAME UP AGAIN IN 1934.  AFTER A STRIKE, NEGOTIATIONS
RESULTED IN A RETURN OF THE MEN TO WORK ON THE FACE TO FACE PLAN OF
PAYMENT.  IN 1935 THE UNION PROPOSED THAT THE EMPLOYES SHOULD ENTER ON
THEIR OWN TIME AND COME OUT ON COMPANY TIME, BUT IN NEGOTIATIONS THE
MATTER WAS DROPPED.  IN 1936 THE UNION WROTE THE COMPANY RESPECTING AN
AGREEMENT AND, IN ITS PROPOSAL, SAID:  "THE EIGHT HOUR DAY MEANS EIGHT
HOURS IN OR ABOUT THE MINES, AT THE USUAL WORKING PLACES FOR ALL
CLASSES OF WORK."  IN 1939 THE UNION PROPOSED AN AGREEMENT CONTAINING A
LIKE PROVISION.  IN THAT YEAR THE UNION PREFERRED CHARGES BEFORE THE
NATIONAL LABOR RELATIONS BOARD BUT THESE DID NOT INVOLVE THE FACE TO
FACE BASIS OF WAGE COMPUTATION.  THE COMPLAINT WAS SETTLED BY
STIPULATION.  THE COMPANY CONTINUED TO PAY FOR A DAY'S WORK ON THE FACE
TO FACE BASIS UNTIL MAY 1, 1941.    THE FAIR LABOR STANDARDS ACT BECAME
EFFECTIVE OCTOBER 24, 1938.  AT THAT TIME COAL AND IRON MINERS WERE
BEING PAID ON THE BASIS OF THEIR TIME SPENT AT THEIR WORKING PLACES IN
THE MINE.  THE MINERS FULLY UNDERSTOOD THIS BASIS. 

ON JULY 9, 1940, THE DIRECTOR OF THE LEGAL DEPARTMENT OF THE UNITED
MINE WORKERS OF AMERICA, IN A LETTER TO THE ADMINISTRATOR OF THE ACT,
REQUESTED THAT HE ACCEPT THE DEFINITION OF WORKING TIME CONTAINED IN
THE APPALACHIAN AGREEMENT, WHICH THE LETTER SAID EMBODIED "THE CUSTOM
AND TRADITIONS OF THE BITUMINOUS MINING INDUSTRY."  THAT DEFINITION WAS
THE SAME AS THAT QUOTED FROM THE TENNESSEE AGREEMENT, SUPRA.  THE
LETTER FURTHER SAID, RESPECTING THE FACE TO FACE METHOD: 

"THIS METHOD OF MEASURING THE WORKING TIME AT THE PLACES OF WORK HAS
BEEN THE STANDARD PROVISION IN THE BASIC WAGE AGREEMENTS FOR ALMOST
FIFTY YEARS AND IS THE RESULT OF COLLECTIVE BARGAINING IN ITS COMPLETE
SENSE."  AND FURTHER SAID: 

"AS MINES GROW OLDER, THE WORKING PLACES MOVE FARTHER AND FARTHER
AWAY FROM THE PORTAL OR OPENING OF THE MINE, AND AS SUCH CONDITIONS
DEVELOP, IT BECOMES NECESSARY FOR PROVISION TO BE MADE FOR
TRANSPORTATION OF THE MEN OVER LONG DISTANCES TO THEIR WORKING
PLACES."  AND ADDED THAT ADJUSTMENT OF WAGE RATES TO ANY NEW
MEASUREMENT "WOULD CREATE SO MUCH CONFUSION IN THE BITUMINOUS INDUSTRY
AS TO RESULT IN COMPLETE CHAOS, AND WOULD PROBABLY RESULT IN A COMPLETE
STOPPAGE OF WORK AT PRACTICALLY ALL OF THE COAL MINES IN THE UNITED
STATES." 

ON THE FOOTING OF THAT LETTER THE ADMINISTRATOR ISSUED A RELEASE
STATING THAT THE FACE TO FACE BASIS IN THE BITUMINOUS INDUSTRY WOULD
NOT BE UNREASONABLE. 

ON MARCH 23, 1941, THE ADMINISTRATOR ANNOUNCED A MODIFIED PORTAL TO
PORTAL WAGE HOUR OPINION IN WHICH HE DEFINED THE WORKDAY IN UNDERGROUND
METAL MINING AS STARTING WHEN THE MINER REPORTS AT THE COLLAR OF THE
MINE, ENDS WHEN HE RETURNS TO THE COLLAR, AND INCLUDES THE TIME SPENT
ON THE SURFACE IN OBTAINING AND RETURNING LAMPS, CARBIDE, AND TOOLS AND
IN CHECKING IN AND OUT.  REALIZING THAT THIS WAS A COMPLETE CHANGE OF
OPINION, THE ADMINISTRATOR ANNOUNCED THAT HE WOULD NOT SEEK TO COMPEL
PAYMENT OF RESTITUTION FROM MINE OWNERS OPERATING ON A FACE TO FACE
BASIS BUT THAT HE COULD NOT INTERFERE WITH THE RIGHT OF EMPLOYES OR
THEIR REPRESENTATIVES TO SUE FOR PAST OVERTIME AND PENALTIES UNDER SEC.
16(B) OF THE ACT.  THEREUPON THE UNIONS REPRESENTING MINERS DEMANDED
PAYMENT OF OVERTIME FOR ALL TRAVEL TIME SINCE THE EFFECTIVE DATE OF THE
ACT, AND INVOKED THE PENALTIES SPECIFIED THEREIN. 

IN ORDER TO AVOID POSSIBLE PENALTIES, THE PETITIONERS COMPLIED WITH
THE ADMINISTRATOR'S RULING AND BROUGHT THE PRESENT SUIT FOR A
DECLARATORY JUDGMENT TO THE EFFECT THAT WORKING TIME OF UNDERGROUND
EMPLOYES COMPRISED THE HOURS OF WORK IN THE USUAL WORKING PLACES IN THE
MINE AND DID NOT INCLUDE THE TIME CONSUMED IN TRAVEL THERETO AND
THEREFROM. 

AT THE TRIAL MUCH EVIDENCE WAS TAKEN AS TO THE PRACTICE EXISTING IN
IRON MINES LONG PRIOR TO, AND AT THE DATE OF THE ADOPTION OF, THE FAIR
LABOR STANDARDS ACT.  THIS WAS GIVEN BY MINERS, FOREMEN, FOREMEN, AND
EMPLOYERS, AND REPRESENTED NOT ANY SINGLE LOCALITY BUT THE INDUSTRY
OVER THE COUNTRY.  IN FACT, SOME OF THE TESTIMONY CONSISTED OF
DEPOSITIONS TAKEN BY THE RESPONDENTS, BUT OFFERED BY THE PETITIONERS. 
IT WAS ALL TO THE EFFECT THAT THE WORKING TIME OF IRON MINERS HAD
ALWAYS BEEN CALCULATED AND PAID FOR ACCORDING TO THE TIME WORKED IN THE
MINE AT THE PLACE ASSIGNED FOR THE WORK AND THAT TRAVEL TIME HAD NEVER
BEEN INCLUDED IN THE TIME FOR WHICH PAYMENT WAS MADE. 

THE DISTRICT JUDGE ENTERED TWENTY-NINE FINDINGS OF FACT.  THE FIRST
FOUR ARE FORMAL.  THE FIFTH IS TO THE EFFECT THAT, IN THE HISTORY OF
MINING IN THE BIRMINGHAM DISTRICT, PLAINTIFFS' EMPLOYES HAVE BEEN PAID
WITHOUT REGARD TO THE NUMBER OF HOURS SPENT AT THE FACE OF THE ORE OR
AT ANY SPECIFIED PLACE OR STATION IN THE MINES, AND ADDS: "THIS
COMPENSATION HAS NEVER BEEN BASED UPON ANY PRECISE NUMBER OF HOURS
SPENT DAILY AT THE FACE OF THE SEAM OR AT ANY SPECIFIED PLACE OR
STATION IN THE MINES."  THE FINDING WOULD SEEM DIFFICULT TO EXPLAIN IN
VIEW OF THE HISTORY HERETOFORE OUTLINED.  THE EXPLANATION IS FOUND IN
THE FACT THAT, ALTHOUGH THE MEN WERE PAID FOR AN EIGHT HOUR DAY OF WORK
AT THE FACE, IF BLASTS WERE ABOUT TO BE SET OFF AT THE CLOSE OF THE DAY
THE MEN WERE SENT AWAY FROM THE FACE SOME TIME BEFORE THE BLASTING BUT
WERE, NEVERTHELESS, PAID AS IF THEY HAD REMAINED AT THE FACE FOR THE
FULL EIGHT HOURS.  BUT THIS CAN BE NO REASON FOR DISREGARDING THE
PRACTICES AND AGREEMENTS OF THE PARTIES. 

FINDINGS 6 TO 12, INCLUSIVE, REFER TO VARIOUS METHODS OF PAYMENT
PRACTICED IN THE PAST AND TO THE CHARACTER OF THE WORK OF MINERS AND
OTHER UNDERGROUND WORKERS.  THEY EVIDENTLY ARE INTENDED TO SHOW THAT,
WHILE AN EIGHT HOUR DAY WAS IN FORCE, THE WAGE WAS NOT CALCULATED AT AN
HOURLY RATE.  OF COURSE, THEY DO NOT CONTRADICT THE FACT THAT FORTY
HOURS CONSTITUTED THE WORKWEEK NOR THE FACT THAT IT WAS UNDERSTOOD THAT
NO WAGES WERE PAID FOR TIME SPENT IN TRAVEL IN THE MINES. 

FINDING 13 IS TO THE EFFECT THAT THE UNIONS WHICH MADE AGREEMENTS
WITH VARIOUS PETITIONERS HAD NEVER BEEN CERTIFIED BY THE NATIONAL LABOR
RELATIONS BOARD AS APPROPRIATE UNITS FOR COLLECTIVE BARGAINING.  THE
BEARING OF THIS FINDING IS DIFFICULT TO UNDERSTAND IN VIEW OF THE FACT
THAT THE EMPLOYERS DEALT WITH THE UNIONS REPRESENTING THEIR MEN AND TWO
OPERATED UNDER FORMAL COLLECTIVE BARGAINING AGREEMENTS WITH NATIONALLY
AFFILIATED UNIONS. 

FINDING 14 BRIEFLY MENTIONS THAT THE MEN HAD SEVERAL TIMES DEMANDED
PAY FOR TRAVEL TIME. 

FINDINGS 15 TO 27, INCLUSIVE, DESCRIBE THE CONDITIONS UNDER WHICH THE
MEN ARRIVE AT THE MINE, CHECK IN, OBTAIN THEIR TOOLS, AND WALK, OR ARE
CARRIED, TO THEIR WORK UNDERGROUND AND HOW THEY RETURN.  THEY RECITE
THAT THE MEN HAVE TO OBEY COMPANY REGULATIONS WHILE THEY ARE ON THE
COMPANY PROPERTY AND IN GOING TO AND RETURNING FROM WORK.  MANY OF
THESE REGULATIONS ARE FOR THE MEN'S SAFETY.  THESE FINDINGS ALSO SHOW
THAT, AFTER ARRIVING ON COMPANY PROPERTY, THE MEN RECEIVE CERTAIN
DIRECTIONS WITH RESPECT TO THE WORK THEY ARE TO DO.  THE OBVIOUS
BEARING OF THESE FINDINGS IS THAT THE COURT THOUGHT TRAVEL OUGHT TO BE
CONSIDERED WORK, WITHIN THE INTENDMENT OF THE ACT, WHATEVER THE CUSTOM,
PRACTICE, OR AGREEMENT OF THE PARTIES.  IT WOULD BE NO LESS A JUDICIAL
FIAT, THOUGH SOMEWHAT MORE EXTREME, TO HOLD THAT AS THE MEN'S LIVING
QUARTERS ARE UNCOMFORTABLE AND UNHEALTHY AND THEY MUST LIVE IN THE
NEIGHBORHOOD OF THE MINES, THE TIME SPENT IN THEIR HOMES MUST BE PAID
FOR AS WORK. 

THE TWO CONCLUDING FINDINGS ARE OF FACTS WHICH ADD NOTHING.  THEY ARE
TO THE EFFECT THAT, IF ALL THE TRAVEL TIME IS COUNTED IN THE WORKWEEK,
THE MEN HAVE WORKED MORE THAN FORTY HOURS PER WEEK AND THE PETITIONERS
HAVE NOT PAID THEM FOR MORE THAN FORTY HOURS. 

THE OPINION AND CONCURRING OPINION IN THIS COURT RELY HEAVILY ON
THESE FINDINGS, ESPECIALLY AS THEY WERE ACCEPTED BY THE CIRCUIT COURT
OF APPEALS.  BUT IT WILL BE OBSERVED THAT THE FINDINGS ARE NOTEWORTHY
FOR THE FEATURE THAT THEY DEAL, EXCEPT IN THE INSTANCE MENTIONED, WHICH
HAS ALREADY BEEN EXPLAINED, WITH FACTS WHICH ARE IMMATERIAL TO THE
ISSUES IN THE CASE.  I DO NOT SEE HOW AID TO DECISION CAN BE DERIVED BY
REFUSING TO DISTURB FINDINGS WHICH DO NOT MEET THE ISSUE MADE BY THE
PLEADINGS.  IT IS SIGNIFICANT THAT THE DISTRICT COURT AVOIDED ANY
FINDING AS TO WHETHER THE EMPLOYERS HAD EVER PAID TRAVEL TIME OR AS TO
THE UNDERSTANDING OF THE PARTIES THAT THE EMPLOYERS WERE NOT PAYING FOR
SUCH TRAVEL TIME.  AND IT IS EVEN MORE SIGNIFICANT THAT THE COURT MADE
NO FINDING WHATEVER ABOUT THE FORMAL COLLECTIVE BARGAINING AGREEMENTS
ENTERED INTO BY THE RESPONDENTS WITH THE PETITIONERS IN WHICH BOTH
PARTIES CLEARLY SIGNIFIED THEIR UNDERSTANDING OF WHAT WAS WORK IN IRON
MINES.  AND THE COURT COULD NOT, UNDER THE PROOFS IN THIS CASE, HAVE
FOUND THAT THESE COLLECTIVE BARGAINING AGREEMENTS WERE CONTRARY TO THE
ACCEPTED PRACTICE IN IRON AND COAL MINES THROUGHOUT THE COUNTRY PRIOR
TO 1941.  THE PETITIONERS OBJECTED THAT THE FINDINGS OMITTED ANY
REFERENCE TO THE FACT THAT THE COMPANIES HAD NEVER PAID FOR TRAVEL
TIME, TO THE FACT THAT THE DAY'S WORK FOR WHICH WAGES WERE PAID DID NOT
INCLUDE TRAVEL TIME TO OR FROM THE PLACE WHERE THEY MINED THE ORE, OR
TO THE NEGOTIATIONS AND AGREEMENTS AS TO WORKING TIME, AND SOUGHT A NEW
TRIAL.  THE OBJECTIONS AND MOTIONS WERE OVERRULED. 

RELIANCE IS PLACED ON THE TRIAL COURT'S FINDING THAT THE EVIDENCE
DISCLOSES NO CUSTOM TO EXCLUDE TRAVEL TIME FROM THE WORKWEEK.  BUT THAT
VERY RELIANCE EXPOSES THE FALLACY OF THE LOWER COURT'S AND THIS COURT'S
POSITION.  UNLESS THE STATUTE GAVE THE COURTS AUTHORITY TO MAKE
CONTRACTS FOR THE PARTIES, WHICH THE STATUTE DID NOT MAKE, A COURT
COULD NOT SUPPORT SUCH A CONTRACT BY FINDING THAT THERE WAS NO CUSTOM
WITH RESPECT TO TRAVEL TIME.  IT WOULD BE NECESSARY FOR IT TO FIND THAT
THERE WAS A CUSTOM TO PAY FOR SUCH TIME, WHICH THE DISTRICT COURT
FAILED TO DO, FOR THE OBVIOUS REASON THAT THERE WAS NO EVIDENCE OF SUCH
CUSTOM. 

TO SAY THAT WE SHOULD PITCH DECISION ON ACCEPTANCE OF THE FINDINGS OF
THE TRIAL COURT, WHEN THAT COURT NEGLECTED TO FIND FACTS WHICH WERE
HIGHLY RELEVANT AND MATERIAL, IS TO DISREGARD THE REAL AND THE ONLY
ISSUE IN THE CASE. 

AS I HAVE ALREADY POINTED OUT, THE FAIR LABOR STANDARDS ACT WAS NOT
INTENDED BY CONGRESS TO TURN INTO WORK THAT WHICH WAS NOT WORK, OR NOT
SO UNDERSTOOD TO BE, AT THE TIME OF ITS PASSAGE.  IT WAS NOT INTENDED
TO PERMIT COURTS TO DESIGNATE AS WORK SOME ACTIVITY OF AN EMPLOYE,
WHICH NEITHER EMPLOYER NOR EMPLOYE HAD EVER REGARDED AS WORK, MERELY
BECAUSE THE COURT THOUGHT THAT SUCH ACTIVITY IMPOSED SUCH HARDSHIP ON
HIM OR INVOLVED CONDITIONS SO DELETERIOUS TO HIS HEALTH OR WELFARE THAT
HE OUGHT TO BE COMPENSATED FOR THEM. 

IT IS COMMON KNOWLEDGE THAT THE ISSUE OF PORTAL TO PORTAL PAY WAS
FIRST NATIONALLY RAISED IN CONNECTION WITH THE MINING INDUSTRY AFTER
THE NATION WAS AT WAR AND IN CONNECTION WITH DISASTROUS COAL STRIKES. 
AND, INDEED, THE INSPIRATION FOR THE DEMAND FOR PORTAL TO PORTAL PAY
WAS FURNISHED BY THE DECISION OF THE COURT BELOW IN THIS CASE.  THAT
DECISION WAS RENDERED ON MARCH 16, 1943.  THREE DAYS LATER THE NATIONAL
POLICY COMMITTEE OF THE UNITED MINE WORKERS CHANGED ITS DEMANDED
DEFINITION OF HOURS OF LABOR SO THAT EXISTING DEMANDS, WHICH, UNTIL
THEN, HAD BEEN ON THE TRADITIONAL FACE TO FACE BASIS OF PAYMENT, SHOULD
"CONFORM WITH THE BASIC LEGAL REQUIREMENTS OF THE INDUSTRY AND THE
MAXIMUM HOURS OF WORK TIME PROVISIONS BE AMENDED TO ESTABLISH 'PORTAL
TO PORTAL' FOR STARTING AND QUITTING TIME FOR ALL UNDERGROUND
WORKERS."  IN PRESENTING THIS DEMAND IT SAID:  "THE MINE WORKERS DESIRE
TO TAKE ADVANTAGE OF THE LAW WHICH, UNDER THE ALABAMA DECISION, GRANTS
THEM THE RIGHT TO BE PAID FOR THE TIME THEY ARE IN THE MINES."  THUS IT
IS PLAIN THAT THE DECISION UNDER REVIEW WAS UNDERSTOOD, AS IT MUST BE,
AS A DECLARATION OF LAW BY A COURT AS TO WHAT IS A WORKWEEK UNDER THE
ACT AND NOT A FINDING OF FACT BASED ON THE CUSTOM OF THE INDUSTRY AND
THE AGREEMENT OF THE PARTIES.  IN AUGUST CLASS ACTIONS WERE FILED BY
THE UNITED MINE WORKERS IN VARIOUS DISTRICT COURTS TO OBTAIN OVERTIME
COMPENSATION FOR PORTAL TO PORTAL PAY. 

ONE FURTHER FACT SHOULD BE NOTED.  THE DISTRICT COURT FOUND THAT NOT
ONLY THE TRAVEL TIME FROM AND TO THE MOUTH OF THE MINE SHOULD BE
COUNTED AS WORKING TIME, BUT THAT THE TIME MEN SPENT ON THE SURFACE IN
COLLECTING TOOLS, ETC. SHOULD ALSO BE INCLUDED.  THE CIRCUIT COURT OF
APPEALS, ALTHOUGH PROFESSING TO ACCEPT THE FACT FINDINGS OF THE
DISTRICT COURT, REVERSED ITS JUDGMENT WITH RESPECT TO TIME SPENT ON THE
SURFACE, SAYING NO MORE THAN THAT THE DISTRICT COURT WAS WRONG IN
INCLUDING THAT TIME.  THIS IS FURTHER PROOF THAT THE DECISION OF THE
CASE BY BOTH COURTS BELOW TURNS ON THE VIEW OF A COURT AS TO WHAT OUGHT
TO BE CONSIDERED WORK AND WHAT NOT, IRRESPECTIVE OF THE UNDERSTANDING
OF THE PARTIES.  SUPPOSE THAT THE PARTIES HAD AGREED THAT TRAVEL TIME
WAS WORKING TIME AND TO BE INCLUDED AND PAID FOR IN THE WORKWEEK? 
WOULD THE COURTS BE AT LIBERTY TO FIND THE CONTRARY AND DEPRIVE
RESPONDENTS OF THE BENEFIT OF THE AGREEMENT?  I THINK NOT. 

I CANNOT BETTER CHARACTERIZE THE RESULT IN THIS CASE THAN BY QUOTING
FROM WHAT JUDGE SIBLEY SAID IN HIS DISSENTING OPINION BELOW:  FN4  "IF
IT WOULD BE BETTER TO INCLUDE TRAVEL TIME IN WORK TIME, IT OUGHT TO BE
DONE BY A NEW BARGAIN IN WHICH RATES OF PAY ARE ALSO REVIEWED.  IF THE
CHANGE IS TO BE BY A SPECIAL STATUTE (SOME WESTERN STATES HAVE SUCH
STATUTES), IT WILL OPERATE JUSTLY IN FUTURO, AND NOT BY UNEXPECTED
PENALTY, AS HERE. 

"THERE IS NOTHING IN THE ACT TO OUTLAW AGREEMENTS THAT TRAVEL TIME IN
GETTING TO OR FROM THE AGREED PLACE OF WORK IS NOT WORK TIME.  THIS IS
TRUE THOUGH THE EMPLOYER MAY ORGANIZE A MEANS OF TRANSPORTATION AND
MAKE RULES FOR ITS USE.  THE AGREEMENTS HERE THAT WORK TIME INCLUDES
ONLY TIME AT THE FACE OF THE ORE BED ARE NOT ILLEGAL.  DIGGING OUT THE
ORE IS WHAT THE MINERS AGREE TO DO, AND FOR THAT THEY ARE PAID. 
GETTING THEIR TOOLS TOGETHER AND RIDING OR WALKING TO THE AGREED PLACE
OF WORK IS NOT, BY FORCE OF ANY LAW, WORK DONE FOR THE MINE OWNER.  NO
ONE, I SUPPOSE, WOULD SAY THAT IF A GROUP OF MINERS WHO HAD SPENT AN
HOUR RIDING TO WORK DECIDED OF THEIR OWN WILL NOT TO DIG ANY ORE AND
SPENT ANOTHER HOUR RIDING BACK, THEY HAD DONE ANY WORK FOR WHICH THEY
SHOULD BE PAID BY FORCE OF THE ACT.           .         .         .
.         . 

"IT IS NOW PROPOSED TO ASSESS AGAINST THESE APPELLANTS AS BACK PAY
FOR OVERTIME AN ESTIMATED QUARTER OF A MILLION DOLLARS, TO BE DOUBLED
BY WAY OF PENALTY, TO COMPENSATE THE MINERS FOR THEIR TIME IN GOING TO
AND FROM THEIR PLACE OF WORK, IN THE FACE OF THEIR AGREEMENTS THAT THIS
TIME WAS NOT IN THEIR WORK TIME.  THEY ARE TO GET THREE TIMES AS MUCH
PER HOUR FOR RIDING AND WALKING TO AND FROM THE WORK THEY WERE HIRED TO
DO, AS THEY GET FOR DOING THE WORK ITSELF.  THE INJUSTICE OF IT TO ME
IS SHOCKING." 

I WOULD REVERSE THE JUDGMENT.    FN1  H.R. 1452, 75TH CONG., 1ST
SESS., 1ST SESS., H.R. 2182, 75TH CONG., 3D SESS., S.R. 884, 75TH
CONG., 1ST SESS. 

FN2  52 STAT. 1060. 

FN3  UNITED STATES V. DARBY, 312 U.S. 100, 115, 117, 122, 125. 

FN4  135 F.2D 324, 325. 

THE CHIEF JUSTICE JOINS IN THIS OPINION. 
..END :























SARTOR V. ARKANSAS GAS CORP., 321 U.S. 620 


NO. 232.  ARGUED FEBRUARY 3, 1944.  - DECIDED MARCH 27, 1944.  - 134
F.2D 433, REVERSED. 


SUMMARY JUDGMENT UNDER RULE 56 OF THE RULES OF CIVIL PROCEDURE SHOULD
NOT HAVE BEEN GRANTED DEFENDANT SOLELY UPON OPINION AFFIDAVITS OF
EXPERTS WHO EITHER WERE OFFICERS OF DEFENDANT OR WHOSE INTERESTS WITH
RESPECT TO THE SUBJECT MATTER OF THE LITIGATION WERE SIMILAR TO THAT OF
DEFENDANT, AND WHO HAD GIVEN LIKE TESTIMONY AT A PREVIOUS TRIAL OF THE
CAUSE WHEREIN A JURY HAD FOUND CONTRARY TO THEIR TESTIMONY.  P. 627. 

SARTOR ET AL. V. ARKANSAS NATURAL GAS CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 320 U.S. 727, TO REVIEW THE AFFIRMANCE OF A JUDGMENT (46
F.SUPP.  111) FOR THE DEFENDANT, UPON A MOTION FOR SUMMARY JUDGMENT
UNDER RULE 56, IN A SUIT TO RECOVER SUMS CLAIMED TO BE DUE THE
PLAINTIFFS UNDER AN OIL AND GAS LEASE. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION, BEGUN A DECADE AGO, HAS BEEN TERMINATED BY A SUMMARY
JUDGMENT, AND WHETHER RIGHTLY SO IS THE ISSUE.  THE SUIT HAS WEATHERED
FOUR ADJUDICATIONS, INCLUDING TWO TRIALS, IN DISTRICT COURT AND FOUR
DECISIONS BY THE COURT OF APPEALS.  FN1  WE WILL RECITE ONLY SUCH OF
ITS HISTORY AS BEARS ON THE ISSUES AS TO SUMMARY JUDGMENT, SINCE WE
CONSIDER NO OTHER QUESTION. 

SARTORS ARE LANDOWNERS IN RICHLAND PARISH, LOUISIANA, WHO IN MARCH OF
1927 LEASED THEIR LANDS FOR NATURAL GAS DEVELOPMENT.  THE LEASE, SO FAR
AS HERE IMPORTANT, PROVIDES THAT "  ...  THE GRANTOR SHALL BE PAID ONE
EIGHTH (1/8) OF THE VALUE OF SUCH GAS CALCULATED AT THE RATE OF MARKET
PRICE AND NO LESS THAN THREE CENTS PER THOUSAND CUBIC FEET, CORRECTED
TO TWO POUNDS ABOVE ATMOSPHERIC PRESSURE ... " FOR MANY YEARS THE
LESSEE MADE SETTLEMENT AT THE 3[ RATE.  THE SUIT WAS BASED UPON THE
CONTENTION THAT DURING ALL OF THE YEARS FROM 1927 TO 1932 INCLUSIVE
SUCH MARKET PRICE WAS CONSIDERABLY ABOVE 3[.  AT THE LAST TRIAL THE
COURT HELD THAT THE CLAIMS FOR GAS PRODUCED PRIOR TO THE 20TH OF MARCH,
1930 WERE BARRED BY THE STATUTE OF LIMITATIONS OR, AS IT IS CALLED IN
LOUISIANA, BY PRESCRIPTION.  THE ISSUES AS TO GAS PRODUCED BETWEEN
MARCH 20, 1930 AND THE COMMENCEMENT OF THE ACTION WERE SUBMITTED TO THE
JURY, WHICH RETURNED A VERDICT:  "WE, THE JURY, FIND FOR THE PLAINTIFFS
THAT THE AVERAGE PRICE OF GAS AT THE WELL IN RICHLAND PARISH,
LOUISIANA, FIELD DURING THE PERIOD BEGINNING MARCH 20, 1930, AND ENDING
MARCH 20, 1933, TO BE .0445 PER 1,000 CU. FT. AT 8 OZ. PRESSURE."  THE
CIRCUIT COURT OF APPEALS AFFIRMED "SO FAR AS THE VERDICT OF THE JURY
FIXED THE MARKET VALUE OF THE GAS UPON WHICH PLAINTIFF IS ENTITLED TO
RECOVER ROYALTIES."  HOWEVER, IT REVERSED THE RULING THAT PART OF
PETITIONER'S CLAIMS WERE BARRED BY THE STATUTE OF LIMITATIONS AND
REMANDED THE CASE FOR TRIAL OF THE SAME ISSUES AS TO MARKET PRICE OF
GAS PRODUCED PRIOR TO MARCH 20, 1930.  THE RESPONDENT-DEFENDANT THEN
FILED A MOTION FOR SUMMARY JUDGMENT UNDER RULE 56.  THE MOTION WAS
GRANTED AND THE COURT OF APPEALS AFFIRMED.  FN2  THE IMPORTANCE OF
QUESTIONS RAISED UNDER THE SUMMARY JUDGMENT RULE LED US TO GRANT
CERTIORARI.  FN3 

THE CONTROVERSY, BOTH AS TO WHETHER THERE IS A CAUSE OF ACTION AND,
IF SO, IN WHAT AMOUNT, TURNS ON WHETHER THE "RATE OF MARKET PRICE"
DURING THIS PERIOD BEFORE MARCH 20, 1930 WAS ABOVE 3[ PER M.C.F., AS IT
IS CONCLUSIVELY ADJUDGED IN THIS CASE TO HAVE BEEN THEREAFTER.  IT IS
HELD IN LOUISIANA THAT THE MARKET PRICE UNDER SUCH LEASES IS TO BE
ASCERTAINED AT THE WELLHEAD, IF THERE IS AN ESTABLISHED MARKET PRICE AT
THAT POINT.  UNFORTUNATELY, THIS RULE REQUIRES THAT THE PRICE FOR
ROYALTY PURPOSES BE ASCERTAINED AT A PLACE AND TIME AT WHICH FEW
COMMERCIAL SALES OF GAS OCCUR.  THE LESSEES WHO MARKET THIS ROYALTY GAS
ALONG WITH THEIR OWN PRODUCTION DO NOT CUSTOMARILY MAKE THEIR
DELIVERIES AT THE WELLHEAD BUT TRANSMIT GAS FROM THE SEVERAL WELLS SOME
DISTANCE IN GATHERING LINES, TURNING IT OVER TO LARGER BUYERS AT POINTS
SOMEWHAT REMOVED, AND UNDER CONDITIONS OF DELIVERY DIFFERENT FROM
WELLHEAD DELIVERIES.  THE PRICE PRODUCERS RECEIVE AT THESE DELIVERY
STATIONS OFTEN IS SUBSTANTIALLY ABOVE THE 3[ PRICE TO THE LANDOWNER. 
THE PRACTICE OF FIXING THE PRICE OF LANDOWNER'S ROYALTY GAS AT ONE TIME
AND PLACE AND OF MARKETING HIS GAS FOR A DIFFERENT PRICE AT ANOTHER
DELIVERY POINT RAISES THE DISSATISFACTION AND PROBLEMS WHICH PRODUCE
THIS CASE. 

THE COURT OF APPEALS, CORRECTLY WE THINK, FOLLOWED THE LOUISIANA
SUBSTANTIVE RULE THAT THE INQUIRY IN A CASE OF THIS KIND SHALL
DETERMINE (1) THE MARKET PRICE AT THE WELL, OR (2) IF THERE IS NO
MARKET PRICE AT THE WELL FOR THE GAS, WHAT IT IS ACTUALLY WORTH THERE,
AND "IN DETERMINING THIS ACTUAL VALUE  ...  EVERY FACTOR PROPERLY
BEARING UPON ITS ESTABLISHMENT SHOULD BE TAKEN INTO CONSIDERATION. 
INCLUDED IN THESE ARE THE FIXED ROYALTIES OBTAINING IN THE LEASES IN
THE FIELD CONSIDERED IN THE LIGHT OF THEIR RESPECTIVE DATES, THE PRICES
PAID UNDER THE PIPE-LINE CONTRACTS, AND WHAT ELEMENTS, BESIDES THE
VALUE AS SUCH OF THE GAS, WERE INCLUDED IN THOSE PRICES, THE CONDITIONS
EXISTING WHEN THEY WERE MADE, AND ANY CHANGES OF CONDITIONS, THE END
AND AIM OF THE WHOLE INQUIRY, WHERE THERE WAS NO MARKET PRICE AT THE
WELL, BEING TO ASCERTAIN, UPON A FAIR CONSIDERATION OF ALL RELEVANT
FACTORS, THE FAIR VALUE AT THE WELL OF THE GAS PRODUCED AND SOLD BY
DEFENDANT."  FN4 

THE DEFENDANT ASKED A SUMMARY JUDGMENT BECAUSE IT AVERRED "THERE
EXISTS NO REASONABLE BASIS FOR DISPUTE" THAT DURING THE PERIOD IN
QUESTION THERE WAS A MARKET PRICE AT THE WELLS AND THAT IT DID NOT
EXCEED 3[ PER M.C.F.  TO SUSTAIN THIS POSITION IT FILED AFFIDAVITS, A
STIPULATION OF FACTS, AND SEVERAL EXHIBITS.  THE PLAINTIFFS RESISTED ON
THE GROUND THAT THE MOTION WAS INADEQUATELY SUPPORTED ON THE FACE OF
DEFENDANT'S PAPERS.  AN AFFIDAVIT BY PLAINTIFFS' COUNSEL ANALYZED
DEFENDANT'S AFFIDAVITS IN THE LIGHT OF TESTIMONY GIVEN BY THE WITNESSES
AT PRIOR TRIALS; ASSERTED THAT ALL WERE INTERESTED WITNESSES WHOSE
TESTIMONY WAS REJECTED ON PREVIOUS OCCASIONS; RECITED PREVIOUS VERDICTS
IN THE CASE; AND SETTING FORTH AFFIANT'S EXPERIENCE IN TEN TRIALS OF
THIS CHARACTER ARISING OUT OF LEASES IN THIS FIELD, ASSERTED HIS
KNOWLEDGE OF THE MARKET PRICES THERE AND DECLARED IT TO BE MORE THAN 5[
PER M.C.F. AT THE WELLHEAD. 

IT SHOULD BE OBSERVED THAT THE ENTIRE CONTROVERSY HERE TURNS ON
QUESTIONS OF VALUATION.  THE ONLY ISSUE RELATES TO MARKET PRICE OR
VALUE OF PLAINTIFFS' GAS AT THE TIME AND PLACE OF DELIVERY.  IF THERE
HAS BEEN NO DAMAGE IN THE SENSE OF FAILURE TO PAY THE FULL MARKET
PRICE, THEN THERE IS NO CAUSE OF ACTION, AND IF THERE HAS BEEN DAMAGE
IN SUCH SENSE, THERE IS A CAUSE OF ACTION. 

THE SUMMARY JUDGMENT RULE PROVIDES THAT "THE JUDGMENT SOUGHT SHALL BE
RENDERED FORTHWITH IF THE PLEADINGS, DEPOSITIONS, AND ADMISSIONS ON
FILE, TOGETHER WITH THE AFFIDAVITS, IF ANY, SHOW THAT, EXCEPT AS TO THE
AMOUNT OF DAMAGES, THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT
AND THAT THE MOVING PARTY IS ENTITLED TO A JUDGMENT AS A MATTER OF
LAW."  WHERE THE UNDISPUTED FACTS LEAVE THE EXISTENCE OF A CAUSE OF
ACTION DEPENDING ON QUESTIONS OF DAMAGE WHICH THE RULE HAS RESERVED
FROM THE SUMMARY JUDGMENT PROCESS, IT IS DOUBTFUL WHETHER SUMMARY
JUDGMENT IS WARRANTED ON ANY SHOWING.  BUT AT LEAST A SUMMARY
DISPOSITION OF ISSUES OF DAMAGE SHOULD BE ON EVIDENCE WHICH A JURY
WOULD NOT BE AT LIBERTY TO DISBELIEVE AND WHICH WOULD REQUIRE A
DIRECTED VERDICT FOR THE MOVING PARTY. 

THE DEFENDANT UNDERTOOK TO ESTABLISH THE ABSENCE OF A TRIABLE ISSUE
BY THE AFFIDAVITS OF EIGHT PERSONS.  IT MAY BE ASSUMED FOR THE PURPOSES
OF THE CASE THAT THE WITNESSES OFFERED ADMISSIBLE OPINION EVIDENCE
WHICH, IF IT MAY BE GIVEN CONCLUSIVE EFFECT, WOULD SUSTAIN THE MOTION. 
IT WILL SERVE NO PURPOSE TO REVIEW IT IN DETAIL, AND WE RECITE ONLY THE
FACTS WHICH MADE IT INCONCLUSIVE.  AFFIANT HARRIS WAS THE VICE
PRESIDENT AND GENERAL MANAGER OF THE DEFENDANT, CLEARLY AN INTERESTED
WITNESS.  HUNTER WAS A LESSEE AND THE PRODUCER OF GAS WITH INTERESTS
APPARENTLY SIMILAR TO THOSE OF THE DEFENDANT.  HARGROVE WAS VICE
PRESIDENT OF A GAS PIPELINE COMPANY, OWNING LEASES AND PRODUCING GAS,
WHICH THE PLAINTIFFS' ATTORNEY BY AFFIDAVIT AVERS IS DEFENDING ON
SIMILAR CASES BROUGHT BY THESE PLAINTIFFS AND OTHERS.  FLORSHEIM IS AN
EXECUTIVE OFFICER OF TWO GAS PRODUCING COMPANIES WITH SIMILAR INTERESTS
TO THE DEFENDANT, AND HE AVERS THAT THE PRICE IN THE RICHLAND FIELD WAS
NEVER IN EXCESS OF 3[, ALTHOUGH IN THIS VERY CASE IT IS ADJUDGED AT ONE
TIME TO HAVE BEEN MORE.  STOKES IS THE CHIEF CLERK OF A PRODUCING
COMPANY AND RECITES THAT THE RECORDS OF HIS COMPANY SHOW THAT "AFTER
DEDUCTING FROM THE GROSS PRICE REALIZED BY THESE VARIOUS CORPORATIONS
FOR GAS PRODUCED FROM THE RICHLAND GAS FIELD DURING THE PERIOD 1928
1930 INCLUSIVE, THE ACTUAL AVERAGE UNIT COST OF GATHERING AND
DELIVERING THE AFORESAID GAS, THE NET REALIZATION OF THOSE CORPORATIONS
FROM THE SALE OF GAS DURING AFORESAID PERIOD DID NOT EXCEED 3[ PER
M.C.F."  WAIVING THE QUESTION WHETHER THE CONTENTS OF WRITTEN RECORDS
CAN THUS BE PROVED, IT WOULD HARDLY SEEM THAT A CONCLUSION BASED ON SO
COMPLICATED AND INDEFINITE A CALCULATION, SHOULD BE ACCEPTED FROM AN
EMPLOYEE OF A CORPORATION WITH AN INTEREST IN THE MARKET PRICE OF GAS
SIMILAR TO THE DEFENDANT'S WITHOUT OPPORTUNITY TO CROSS-EXAMINE. 
FEAZEL IS ANOTHER PRODUCER OF OIL AND GAS FROM MANY LEASES, WHO AVERS
THAT THE PRICE PAID NEVER EXCEEDED 3[, NOTWITHSTANDING THE JURY
VERDICTS.  MCHENRY IS A LAWYER AND EXECUTIVE OFFICER OF A COMPANY
OPERATING GAS PROPERTIES WITH INTERESTS SIMILAR TO THE DEFENDANT'S.
TAYLOR IS AN OFFICER OF A SIMILAR PRODUCING COMPANY. 

APART FROM THESE, AND CONTRACTS AND LEASES USEFUL ONLY IN CONNECTION
WITH THE TESTIMONY OF THESE WITNESSES, DEFENDANT OFFERED A BULLETIN OF
THE FEDERAL BUREAU OF MINES, WHICH INCLUDED A TABLE SHOWING THE
ESTIMATED VALUE AT THE WELLS OF GAS PRODUCED IN LOUISIANA TO BE 3[ PER
M.C.F. IN 1927 AND 3.3[ IN 1928.  IN SO FAR AS STATE-WIDE STATISTICS
COULD HAVE ANY VALUE IN PROVING THE LOCAL MARKET, THIS WOULD SEEM TO
SUSTAIN THE PLAINTIFFS' CONTENTION THAT THE PRICE WAS OVER 3[.
DEFENDANT ALSO RELIED ON A STIPULATION OF FACTS.  THIS STIPULATION
RECITED A NUMBER OF CONTRACTS FOR THE SALE OF GAS UNDER VARIOUS
CONDITIONS, AT VARIOUS PRICES, SOME CONSIDERABLY IN EXCESS OF 3[.  IT
ALSO SHOWED THE COST OF DELIVERY FROM THE WELLS TO THE POINT WHERE
THESE SALES WERE MADE TO BE 0.3[ PER M.C.F.  MUCH OF THE CONTROVERSY,
AS WILL BE SEEN FROM THE PRIOR HISTORY OF THE CASE,  FN5  IS OVER THE
QUESTION WHETHER THESE CONTRACT PRICES MAY BE USED IN AID OF THE
PLAINTIFFS' CASE.  DEFENDANT USES THESE CONTRACTS ONLY TO EXPLAIN THEIR
PRICES AWAY BY SHOWING DIFFERENCES IN MARKET CONDITIONS.  THEY DO NOT
ESTABLISH THE CLAIM THAT THERE IS A WELLHEAD MARKET PRICE.  THE
STIPULATION ALSO RECITES THAT ABOUT ONE-THIRD OF THE LEASES IN THIS
AREA SPECIFY THE ROYALTY IN SUBSTANTIALLY THE SAME TERMS AS THE LEASE
IN SUIT, THE REST PROVIDING FOR A FIXED ROYALTY OF 3[ PER M.C.F.  ABOUT
90 PER CENT OF THE PAYMENTS TO BE BASED ON MARKET PRICE HAVE BEEN MADE
ON THE BASIS OF 3[, AND THE REMAINING 10 PER CENT AT 4[ PER M.C.F.  WE
CERTAINLY CANNOT RULE AS MATTER OF LAW THAT THE 4[ PRICE PAID FOR 10
PER CENT OF SUCH ROYALTY GAS IS NOT A FACTOR TO BE CONSIDERED BY A FACT
FINDING TRIBUNAL IN FIXING THE MARKET VALUE, AND IS, OR MAY BE, SOME
EVIDENCE TO SUSTAIN PLAINTIFFS' CONTENTIONS. 

TO SUMMARIZE THE FEATURES OF THE DEFENDANT'S MOTION PAPERS: 

1.  THE ONLY EVIDENCE IN SUPPORT OF DEFENDANT'S CONTENTION AS TO THE
WELLHEAD MARKET PRICE IS OPINION TESTIMONY OF EXPERTS. 

2.  EACH OF THEM EITHER IS AN OFFICER OF THE DEFENDANT OR IS A
LESSEE, OR IS AN EMPLOYEE OR OFFICER OF A LESSEE CORPORATION, ENGAGED
LIKE DEFENDANT IN GAS PRODUCTION, AND EACH CERTAINLY IS OPEN TO INQUIRY
AS TO THE TRUTH OF PLAINTIFFS' ATTORNEY'S SWORN STATEMENTS THAT EACH
HAS INTEREST IN OR BIAS AS TO THE SUBJECT MATTER OF THIS LITIGATION. 

3.  EVERY ONE OF DEFENDANT'S WITNESSES HAD TESTIFIED TO THE SAME
GENERAL EFFECT ON THE TRIAL OF THE CLAIM WHEREIN THE JURY FOUND AGAINST
THE TESTIMONY AND THE CIRCUIT COURT OF APPEALS AFFIRMED THE VERDICT. 

4.  DEFENDANT UNDERTOOK BY ITS MOTION TO SHOW THAT IT WAS BEYOND
CONTROVERSY THAT THE 3[ PRICE PREVAILED CONSTANTLY AND NOT AS A MATTER
OF AVERAGES FOR THE ENTIRE PERIOD ENDED MARCH 19, 1930, ALTHOUGH PRIOR
TRIAL HAD CONCLUSIVELY ADJUDGED THAT ON MARCH 20, 1930 AND THEREAFTER
THE PRICE OR VALUE AVERAGED 4.45[ AS RECITED IN THE JURY VERDICT.  NO
EVIDENCE IS PRESENTED OF ANY SUDDEN CHANGE, AND NO FACT IS OFFERED TO
EXPLAIN ANY CHANGE IN THE MARKET AND PRICE OF SUCH GAS.  IN FACT ANY
CHANGE IS INCONSISTENT WITH DEFENDANTS' POSITION IN THE FORMER TRIAL,
WHICH WAS THAT AT NO TIME IN EITHER PERIOD HAD THE MARKET EXCEEDED 3[. 

THE COURT OF APPEALS BELOW HERETOFORE HAS CORRECTLY NOTED THAT RULE
56 AUTHORIZES SUMMARY JUDGMENT ONLY WHERE THE MOVING PARTY IS ENTITLED
TO JUDGMENT AS A MATTER OF LAW, WHERE IT IS QUITE CLEAR WHAT THE TRUTH
IS, THAT NO GENUINE ISSUE REMAINS FOR TRIAL, AND THAT THE PURPOSE OF
THE RULE IS NOT TO CUT LITIGANTS OFF FROM THEIR RIGHT OF TRIAL BY JURY
IF THEY REALLY HAVE ISSUES TO TRY.  AMERICAN INSURANCE CO. V. GENTILE
BROTHERS CO., 109 F.2D 732; WHITAKER V. COLEMAN, 115 F.2D 305.  IN THE
VERY PROPER ENDEAVOR TO TERMINATE A LITIGATION BEFORE IT FOR THE FOURTH
TIME, WE THINK IT OVERLOOKED CONSIDERATIONS WHICH MAKE THE SUMMARY
JUDGMENT AN INAPPROPRIATE MEANS TO THAT VERY DESIRABLE END. 

IN CONSIDERING THE TESTIMONY OF EXPERT WITNESSES AS TO THE VALUE OF
GAS LEASES, THIS COURT THROUGH MR. JUSTICE CARDOZO HAS SAID:  "IF THEY
HAVE ANY PROBATIVE EFFECT, IT IS THAT OF EXPRESSIONS OF OPINION BY MEN
FAMILIAR WITH THE GAS BUSINESS AND ITS OPPORTUNITIES FOR PROFIT.  BUT
PLAINLY OPINIONS THUS OFFERED, EVEN IF ENTITLED TO SOME WEIGHT, HAVE NO
SUCH CONCLUSIVE FORCE THAT THERE IS ERROR OF LAW IN REFUSING TO FOLLOW
THEM.  THIS IS TRUE OF OPINION EVIDENCE GENERALLY, WHETHER ADDRESSED TO
A JURY OR TO A JUDGE OR TO A STATUTORY BOARD."  DAYTON POWER & LIGHT
CO. V. PUBLIC UTILITIES COMMISSION, 292 U.S. 290, 299.  CF. HALLIDAY V.
UNITED STATES, 315 U.S. 94, 97; FORSYTH V. DOOLITTLE, 120 U.S. 73, 77;
MCGOWAN V. AMERICAN PRESSED TAN BARK CO., 121 U.S. 575, 609; QUOCK TING
V. UNITED STATES, 140 U.S. 417, 420; HEAD V. HARGRAVE, 105 U.S. 45, 50;
UNION INSURANCE CO. V. SMITH, 124 U.S. 405, 423.  THE RULE HAS BEEN
STATED "THAT IF THE COURT ADMITS THE TESTIMONY, THEN IT IS FOR THE JURY
TO DECIDE WHETHER ANY, AND IF ANY WHAT, WEIGHT IS TO BE GIVEN TO THE
TESTIMONY."  SPRING CO. V. EDGAR, 99 U.S. 645, 658.  "  ...  THE JURY,
EVEN IF SUCH TESTIMONY BE UNCONTRADICTED, MAY EXERCISE THEIR
INDEPENDENT JUDGMENT."  THE CONQUEROR, 166 U.S. 110, 131.  "  ...  THE
MERE FACT THAT THE WITNESS IS INTERESTED IN THE RESULT OF THE SUIT IS
DEEMED SUFFICIENT TO REQUIRE THE CREDIBILITY OF HIS TESTIMONY TO BE
SUBMITTED TO THE JURY AS A QUESTION OF FACT."  SONNENTHEIL V. CHRISTIAN
MOERLEIN BREWING CO., 172 U.S. 401, 408. 

THIS COURT HAS SAID:  "THE JURY WERE THE JUDGES OF THE CREDIBILITY OF
THE WITNESSES  ...  AND IN WEIGHING THEIR TESTIMONY HAD THE RIGHT TO
DETERMINE HOW MUCH DEPENDENCE WAS TO BE PLACED UPON IT. THERE ARE MANY
THINGS SOMETIMES IN THE CONDUCT OF A WITNESS UPON THE STAND, AND
SOMETIMES IN THE MODE IN WHICH HIS ANSWERS ARE DRAWN FROM HIM THROUGH
THE QUESTIONING OF COUNSEL, BY WHICH A JURY ARE TO BE GUIDED IN
DETERMINING THE WEIGHT AND CREDIBILITY OF HIS TESTIMONY.  THAT PART OF
EVERY CASE, SUCH AS THE ONE AT BAR, BELONGS TO THE JURY, WHO ARE
PRESUMED TO BE FITTED FOR IT BY THEIR NATURAL INTELLIGENCE AND THEIR
PRACTICAL KNOWLEDGE OF MEN AND THE WAYS OF MEN; AND SO LONG AS WE HAVE
JURY TRIALS THEY SHOULD NOT BE DISTURBED IN THEIR POSSESSION OF IT,
EXCEPT IN A CASE OF MANIFEST AND EXTREME ABUSE OF THEIR FUNCTION." 
AETNA LIFE INSURANCE CO. V. WARD, 140 U.S. 76, 88. 

WE THINK THE DEFENDANT FAILED TO SHOW THAT IT IS ENTITLED TO JUDGMENT
AS MATTER OF LAW.  IN THE STIPULATION, THE BULLETIN, THE AFFIDAVIT OF
THE PLAINTIFFS' ATTORNEY AND THE ADMISSION OF ITS WITNESSES, THERE IS
SOME, ALTHOUGH FAR FROM CONCLUSIVE, EVIDENCE OF A MARKET PRICE OR A
VALUE, UNDER THE RULES LAID DOWN BY THE COURT OF APPEALS, THAT SUPPORTS
PLAINTIFFS' CASE.  IT MAY WELL BE THAT THE WEIGHT OF THE EVIDENCE WOULD
BE FOUND ON A TRIAL TO BE WITH DEFENDANT.  BUT IT MAY NOT WITHDRAW
THESE WITNESSES FROM CROSS-EXAMINATION, THE BEST METHOD YET DEVISED FOR
TESTING TRUSTWORTHINESS OF TESTIMONY.  AND THEIR CREDIBILITY AND THE
WEIGHT TO BE GIVEN TO THEIR OPINIONS IS TO BE DETERMINED, AFTER TRIAL,
IN THE REGULAR MANNER.  THE JUDGMENT ACCORDINGLY IS REVERSED. 

FN1  ARKANSAS NATURAL GAS CORP. V. SARTOR, 78 F.2D 924; ARKANSAS
NATURAL GAS CORP. V. SARTOR, 98 F.2D 527; SARTOR V. ARKANSAS NATURAL
GAS CORP., 111 F.2D 772; SARTOR V. ARKANSAS NATURAL GAS CORP., 134 F.2D
433. 

FN2  134 F.2D 433. 

FN3  320 U.S. 727. 

FN4  134 F.2D 433, 434-35. 

FN5  SEE ARKANSAS NATURAL GAS CORP. V. SARTOR, 78 F.2D 924(APPEAL
AFTER FIRST TRIAL); SARTOR V. ARKANSAS NATURAL GAS CORP., 134 F.2D
433(DECISION BELOW); CF. SARTOR V. UNITED GAS PUBLIC SERVICE CO., 84
F.2D 436; SARTOR V. UNITED GAS PUBLIC SERVICE CO., 186 LA. 555, 173 SO.
103; PARDUE V. UNION PRODUCING CO., 117 F.2D 225; DRISKELL V. UNION
PRODUCING CO., 117 F.2D 229; HEMLER V. HOPE PRODUCING CO., 117 F.2D
231. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

IT IS NOT DENIED THAT THE TWO COURTS BELOW HAVE CORRECTLY APPLIED THE
STATE LAW GOVERNING THE RIGHT TO RECOVER ROYALTIES ON THE PARTICULAR
TYPE OF GAS LEASE HERE IN QUESTION.  BY THAT LAW, IN ORDER TO RECOVER
FURTHER ROYALTY PAYMENTS IN EXCESS OF THE 3 CENTS PER 1,000 CUBIC FEET
OF GAS, WHICH PETITIONERS HAVE ALREADY RECEIVED, THEY MUST SUSTAIN THE
BURDEN OF SHOWING THAT DURING THE RELEVANT PERIOD, THE MARKET PRICE OR
VALUE OF THE GAS AT THE WELLHEAD EXCEEDED 3 CENTS.  BY LOUISIANA LAW
ALSO AND UPON PRINCIPLES OF PROOF WHICH IT IS ALSO NOT DENIED THAT THE
COURTS BELOW CORRECTLY APPLIED, THE "PIPE LINE" PRICE OF GAS, WITHOUT
QUALIFICATIONS AND SUPPLEMENTARY PROOF WHOLLY LACKING IN THIS CASE, IS
NOT EVIDENCE OF MARKET PRICE OR VALUE AT THE WELLHEAD.  CONSEQUENTLY,
ON THE MOTION FOR SUMMARY JUDGMENT, THE SINGLE ISSUE WAS WHETHER
PETITIONERS HAD ANY EVIDENCE BY WHICH THEY COULD SUSTAIN THE BURDEN
RESTING ON THEM OF SHOWING THAT DURING THE RELEVANT PERIOD, THERE WAS A
MARKET PRICE OR VALUE OF GAS IN EXCESS OF 3 CENTS AT THE WELLHEAD. 

TRUE, RULE 56(C) OF THE RULES OF CIVIL PROCEDURE EXCLUDES FROM THE
SUMMARY JUDGMENT PROCEDURE ANY ISSUE AS TO THE "AMOUNT OF DAMAGES,"
WHERE THERE IS AN ADMITTED RIGHT OF RECOVERY BUT THE AMOUNT OF DAMAGES
IS IN DISPUTE.  BUT THE RULE DOES NOT EXCLUDE FROM THAT PROCEDURE THE
ISSUE OF DAMAGE VEL NON WHEN THAT IS DECISIVE OF THE RIGHT TO RECOVER. 
THIS IS MADE PLAIN BY SUBDIVISION (D) OF RULE 56, WHICH PROVIDES FOR A
PARTIAL SUMMARY JUDGMENT AND DECLARES THAT THE ORDER SHALL SPECIFY THE
"FACTS THAT APPEAR WITHOUT SUBSTANTIAL CONTROVERSY, INCLUDING THE
EXTENT TO WHICH THE AMOUNT OF DAMAGES OR OTHER RELIEF IS NOT IN
CONTROVERSY."  OBVIOUSLY, IF IT APPEARS THAT THERE IS NO EVIDENCE OF
DAMAGE, THE "AMOUNT OF DAMAGES" IS NOT IN CONTROVERSY AND THE COURT IS
NOT PRECLUDED FROM GIVING SUMMARY JUDGMENT FOR THE DEFENDANT. 

ON THE SINGLE ISSUE HERE PRESENTED, WHETHER PETITIONERS' RIGHT TO
RECOVER CAN BE ESTABLISHED BY A SHOWING OF MARKET PRICE OR VALUE OF THE
GAS AT THE WELLHEAD, IN EXCESS OF 3 CENTS, RESPONDENT'S AFFIDAVITS AND
DOCUMENTARY EVIDENCE AND A STIPULATION OF FACTS SHOW THAT ALL SUCH
SALES OF GAS DURING THE RELEVANT PERIOD WERE AT 3 CENTS OR LESS.  THE
AFFIDAVITS ALSO SHOWED BY OPINION EVIDENCE OF QUALIFIED EXPERTS, THE
DISINTERESTEDNESS OF SOME OF WHOM IS NOT, ON THE PRESENT RECORD, OPEN
TO CHALLENGE, THAT THE MARKET PRICE AND VALUE OF THE GAS AT THE
WELLHEAD DID NOT EXCEED 3 CENTS.  TO MEET THE PRIMA FACIE CASE THUS
MADE OUT BY RESPONDENT'S PAPERS, PETITIONERS TENDERED ONLY PROOF OF
PIPE-LINE PRICES, EACH OF WHICH THE STATE OR FEDERAL COURTS HAD HELD IN
EARLIER CASES TO BE NO EVIDENCE OF MARKET PRICE OR VALUE OF THE GAS AT
THE WELLHEAD.  SEE SARTOR V. UNITED GAS CO., 186 LA. 555, 559-569,  FN1
AND CASES CITED. 

IT IS IRRELEVANT TO ANY ISSUE NOW PRESENTED THAT AS TO A LATER
PERIOD, AS THE FIELD MORE NEARLY APPROACHED EXHAUSTION, A JURY HAD
RETURNED A VERDICT SUSTAINED BY THE COURT BELOW, BY WHICH IT WAS FOUND
THAT THE AVERAGE MARKET PRICE OR VALUE AT THE WELLHEAD WAS IN EXCESS OF
3 CENTS.  SINCE THIS WAS THE AVERAGE FOR A THREE YEAR PERIOD, IT DOES
NOT INDICATE ANY SUDDEN ADVANCE IN PRICE, AND IS WITHOUT PROBATIVE
FORCE TO SHOW A MARKET PRICE OR VALUE IN EXCESS OF 3 CENTS DURING THE
EARLIER PERIOD HERE IN ISSUE FOR WHICH PETITIONERS HAVE TENDERED NO
PROBATIVE EVIDENCE OF A HIGHER PRICE. 

NOR IS IT SUFFICIENT TO RAISE A GENUINE ISSUE HERE THAT IT APPEARS
WITH RESPECT TO 3 1/3% OF THE APPROXIMATELY 900 LEASES IN THE GAS
FIELD, THAT SETTLEMENTS WERE MADE FOR ROYALTIES OF 4 CENTS. 
RESPONDENT'S MOTION PAPERS SHOW, WITHOUT CONTRADICTION, THAT THESE
SETTLEMENTS "IN ALMOST EVERY CASE" WERE COMPROMISES OF DISPUTES AS TO
WHETHER THE LEASE IN QUESTION HAD BEEN PROPERLY DEVELOPED, WHETHER THE
LESSOR WAS ENTITLED TO A FURTHER ROYALTY ON GASOLINE RECOVERED FROM THE
GAS, OR WHETHER THE LESSEE OR LESSOR SHOULD BEAR THE BURDEN OF A LOCAL
SEVERANCE TAX.  SUCH COMPROMISES OF ISSUES NOT PRESENT HERE FURNISH NO
INDICATION OF THE MARKET PRICE OR VALUE AT THE WELLHEAD, WHICH ALONE IS
THE ISSUE DECISIVE OF THIS CASE. 

FURTHER, IN THE CIRCUMSTANCES OF THIS CASE, IT IS UNDULY RESTRICTIVE
OF THE SUMMARY JUDGMENT PROCEDURE TO SAY THAT RESPONDENT'S MOTION FOR
SUMMARY JUDGMENT MUST BE DENIED BECAUSE IT IS SUPPORTED IN PART BY
AFFIDAVITS OF INTERESTED EXPERT WITNESSES WHO ARE NOT SUBJECT TO CROSS
EXAMINATION BY THE PLAINTIFFS.  SUCH AN INTERPRETATION OF THE RULE CAN
HARDLY BE INVOKED IN BEHALF OF PETITIONERS HERE, WHO TENDER NO
PROBATIVE EVIDENCE TO CHALLENGE EITHER THE PROOF OF ACTUAL SALES AT
WELLHEAD AT 3 CENTS OR LESS OR THE TESTIMONY OF THE EXPERTS, AND WHO
HAVE NOT SOUGHT TO AVAIL THEMSELVES OF THE PRIVILEGE AFFORDED BY RULE
56(E) AND (F) TO TAKE THE EXPERTS' DEPOSITIONS OR TO OFFER THE CROSS
EXAMINATION OF THESE WITNESSES AT THE FORMER TRIALS OF THIS ACTION. 
THE SUMMARY JUDGMENT PROCEDURE SERVES TOO USEFUL A FUNCTION IN
TERMINATING GROUNDLESS LITIGATION TO WARRANT ITS LIMITATION IN A WAY
WHICH RULE 56 DOES NOT ADMIT AND ON GROUNDS SO INSUBSTANTIAL. 

ON THIS STATE OF THE RECORD BOTH COURTS BELOW HAVE HELD THAT THE
ISSUE WHETHER PETITIONERS HAVE ANY PROOF TENDING TO SUPPORT THE BURDEN
WHICH RESTS ON THEM TO SHOW MARKET PRICE OR VALUE AT THE WELLHEAD IN
EXCESS OF 3 CENTS, MUST BE RESOLVED AGAINST THEM.  I THINK THAT THE
COURTS' CONCLUSION IS CORRECT; THAT THEY PROPERLY APPLIED THE SUMMARY
JUDGMENT PROCEDURE, AND THAT THE JUDGMENT SHOULD BE AFFIRMED. 

FN1  THIS SUIT, BROUGHT BY THE PRESENT PETITIONERS, TURNED ON
PRECISELY THE ISSUE HERE LITIGATED - THE MARKET PRICE OF GAS AT THE
WELLHEAD IN THE RICHLAND FIELD.  THE LOUISIANA SUPREME COURT SAID THAT
THE DEFENDANT LESSEE IN THAT CASE "PROVED CONCLUSIVELY THAT THE MARKET
PRICE IN THESE FIELDS DOES NOT EXCEED 3 CENTS PER THOUSAND CUBIC
FEET."  186 LA. 555, 569. 

MR. JUSTICE REED JOINS IN THIS DISSENT. 
..END :












JOHNSON V. YELLOW CAB CO., 321 U.S. 383 


NO. 447.  ARGUED JANUARY 6, 7, 1944.  - DECIDED MARCH 13, 1944.  - 137
F.2D 274, AFFIRMED. 


INTOXICATING LIQUORS IN TRANSIT FROM A CONSIGNOR IN ILLINOIS TO A
CONSIGNEE AT FORT SILL MILITARY RESERVATION WERE SEIZED IN OKLAHOMA BY
STATE OFFICERS.  THE CARRIER INSTITUTED A PROCEEDING IN THE FEDERAL
DISTRICT COURT FOR THE RETURN OF THE LIQUORS AND TO RESTRAIN FURTHER
INTERFERENCE WITH THEIR TRANSPORTATION TO DESTINATION.  HELD: 

1.  THE TRANSPORTATION OF THE LIQUORS THROUGH OKLAHOMA VIOLATED NO
LAW OF THAT STATE AND THE SEIZURE WAS ILLEGAL.  P. 386. 

2.  UPON THE FACTS, THE PURCHASE AND DELIVERY OF THE LIQUORS WERE NOT
IN VIOLATION OF 10 U.S.C. SEC. 1350.  P. 388. 

3.  APPLICABILITY OF THE FEDERAL ASSIMILATIVE CRIMES STATUTE IS NOT
DECIDED.  P. 390. 

4.  UPON THE RECORD, THE CARRIER, WHICH HAD ACTED IN GOOD FAITH, WAS
NOT BARRED BY THE "CLEAN HANDS" DOCTRINE AND WAS ENTITLED IN THIS
PROCEEDING TO THE RELIEF SOUGHT.  PP. 387, 392. 

JOHNSON ET AL. V. YELLOW CAB TRANSIT CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 320 U.S. 731, TO REVIEW THE AFFIRMANCE OF A DECREE OF
INJUNCTION, 48 F.SUPP.  594. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE OFFICIALS OF OKLAHOMA STATE AND OKLAHOMA COUNTY
CONCERNED WITH ENFORCEMENT OF OKLAHOMA'S LIQUOR LAWS.  RESPONDENT IS A
COMMON CARRIER BY MOTOR VEHICLE AUTHORIZED BY THE INTERSTATE COMMERCE
COMMISSION TO TRANSPORT IN INTERSTATE COMMERCE VARIOUS COMMODITIES,
INCLUDING WINES AND LIQUORS.  SEE U.S.C. TITLE 49, C. 8.  IN REGULAR
COURSE OF BUSINESS THE RESPONDENT-CARRIER UNDERTOOK TO TRANSPORT 225
CASES OF WINES AND LIQUORS FROM EAST ST. LOUIS, ILLINOIS, THROUGH
MISSOURI, INTO OKLAHOMA AND THENCE TO A CONSIGNEE AT FORT SILL, A
MILITARY RESERVATION WITHIN THE BOUNDARIES OF OKLAHOMA.  WHILE THE
VEHICLE CARRYING THE LIQUORS WAS MOMENTARILY STOPPED AT OKLAHOMA CITY
FOR THE PURPOSE OF LOADING AND UNLOADING OTHER FREIGHT, THE PETITIONER
OFFICIALS FORCIBLY SEIZED AND TOOK AWAY THE LIQUORS. 

THE CARRIER FILED A COMPLAINT IN THE FEDERAL DISTRICT COURT ALLEGING
THAT THE SEIZURE CONSTITUTED AN UNLAWFUL INTERFERENCE WITH ITS
AUTHORIZED INTERSTATE TRANSPORTATION, AND PRAYING THAT THE COURT ORDER
THE OFFICIALS TO RETURN THE LIQUORS SO THAT IT MIGHT DELIVER THEM TO
THE CONSIGNEE AT FORT SILL.  THE ANSWER TO THE COMPLAINT, IN SUBSTANCE,
ADMITTED THE MATERIAL FACTS RELATIVE TO THE SHIPMENT AND SEIZURE OF THE
LIQUORS BUT DENIED THE ALLEGATION OF THE COMPLAINT THAT THE SEIZURE WAS
UNLAWFUL.  THE ANSWER DID NOT ALLEGE THAT JUDICIAL PROCEEDINGS
CONCERNING THE SEIZED LIQUOR WERE PENDING, OR WERE TO BE COMMENCED, IN
AN OKLAHOMA STATE COURT.  AFTER A TRIAL ON STIPULATED FACTS, THE
DISTRICT COURT ORDERED THE LIQUORS RETURNED TO THE CARRIER AND FORBADE
THE OFFICIALS TO INTERFERE WITH COMPLETION OF THE SHIPMENT.  48
F.SUPP.  594.  THE CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING,
AFFIRMED.  137 F.2D 274. 

QUESTIONS PRESENTED IN THE PETITION FOR REVIEW CONCERNING IMPORTANT
STATE AND FEDERAL RELATIONSHIPS WITH REGARD TO FEDERAL ENCLAVES
PROMPTED US TO GRANT CERTIORARI.  320 U.S. 731.  ARGUMENT HAS REVEALED,
HOWEVER, THAT THE DETERMINATIVE ISSUES ARE MORE NARROW:  (1) DID
TRANSPORTATION OF THE LIQUORS THROUGH OKLAHOMA VIOLATE THAT STATE'S LAW
SO AS TO JUSTIFY THEIR SEIZURE?  (2) SHOULD THE DISTRICT COURT HAVE
DENIED THE CARRIER EQUITABLE RELIEF BECAUSE OF THE "UNCLEAN HANDS"
DOCTRINE, EVEN THOUGH SEIZURE OF THE LIQUORS BY THE OFFICIALS WAS
ILLEGAL?  THIS SECOND QUESTION RESTS ON THE DISPUTED PREMISE THAT
INTRODUCTION OF THE LIQUORS INTO FORT SILL WOULD HAVE VIOLATED THE LAWS
OF THE UNITED STATES. 

PETITIONERS DO NOT CLAIM, NOR COULD THEY CLAIM, THAT EITHER OF THESE
TWO SEPARATE QUESTIONS SHOULD BE DECIDED IN THEIR FAVOR ON THE GROUND
THAT OKLAHOMA HAS POWER TO CONTROL LIQUOR TRANSACTIONS ON THE FORT SILL
RESERVATION.  WITH CERTAIN MINOR EXCEPTIONS NOT HERE MATERIAL, OKLAHOMA
CEDED TO THE UNITED STATES IN 1913 WHATEVER AUTHORITY IT EVER COULD
HAVE EXERCISED IN THE RESERVATION.  FN1  THE OKLAHOMA SUPREME COURT HAS
RECOGNIZED THAT THE GENERAL POWER TO GOVERN THE FORT SILL AREA IS
VESTED IN THE UNITED STATES, NOT IN OKLAHOMA,  FN2  AND OUR DECISIONS
LEAD TO THE SAME CONCLUSION.  FN3 

FIRST.  SINCE POWER TO GOVERN FORT SILL IS IN THE UNITED STATES, AND
SINCE THE SEIZED LIQUORS WERE NOT TO BE SOLD, DELIVERED OR OTHERWISE
DISPOSED OF IN OKLAHOMA PROPER, AS DISTINGUISHED FROM FORT SILL, THE
ONLY OKLAHOMA LAWS CALLED TO OUR ATTENTION WHICH COULD HAVE JUSTIFIED
THE SEIZURE ARE THOSE WHICH APPLY TO LIQUOR TRANSPORTATION.  NO
OKLAHOMA LAW PURPORTS ON ITS FACE TO PROHIBIT OR REGULATE INTERSTATE
SHIPMENTS OF LIQUOR INTO AND THROUGH THE STATE TO ANOTHER STATE, OR TO
AN AREA SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES. 
AND WE WERE INFORMED AT THE BAR BY OKLAHOMA'S LEGAL REPRESENTATIVE THAT
NO STATE STATUTE HAD BEEN CONSTRUED BY ANY STATE COURT AS APPLYING TO
SUCH THROUGH SHIPMENTS.  OKLAHOMA LAW DOES MAKE IT UNLAWFUL "TO IMPORT,
BRING, TRANSPORT, OR CAUSE TO BE BROUGHT OR TRANSPORTED INTO THE STATE
...  INTOXICATING LIQUOR  ... WITHOUT A PERMIT  ...  AS HEREINAFTER
PROVIDED."  OKLA. STAT. (1941) TITLE 37, SEC. 41.  THE ARGUMENT IS THAT
THE OKLAHOMA LEGISLATURE INTENDED THIS STATUTE TO APPLY TO LIQUOR
IMPORTED INTO THE FORT SILL RESERVATION BECAUSE THE LATTER IS LOCATED
WITHIN THE EXTERIOR BOUNDARIES OF OKLAHOMA.  WERE THIS STATUTE INTENDED
TO DO NO MORE THAN PROVIDE A MEANS WHEREBY THE STATE COULD PROTECT
ITSELF FROM ILLEGAL LIQUOR DIVERSIONS WITHIN THE AREA WHICH OKLAHOMA
HAS POWER TO GOVERN, THE INTERPRETATION ASKED MIGHT WELL BE AN
ACCEPTABLE ONE.  DUCKWORTH V. ARKANSAS, 314 U.S. 390; CARTER V.
VIRGINIA, 321 U.S. 131.  BUT THE STATUTE HAS NO SUCH LIMITED PURPOSE. 
NO PERMIT TO TRANSPORT LIQUOR INTO OKLAHOMA CAN BE OBTAINED AT ALL
EXCEPT FOR SCIENTIFIC, MECHANICAL, MEDICINAL, INDUSTRIAL, OR
SACRAMENTAL PURPOSES.  OKLA. STAT. (1941) TITLE 37, SEC. 42.  TO
CONSTRUE THE STATE STATUTE IN THE MANNER URGED WOULD BE TO SAY THAT,
ALTHOUGH OKLAHOMA ADMITTEDLY HAS NO POWER DIRECTLY TO REGULATE THE
LIQUOR TRAFFIC ON THE RESERVATION, THE OKLAHOMA LEGISLATURE INTENDED
PRACTICALLY TO EXCLUDE FROM THE RESERVATION LIQUOR WHICH MIGHT BE PUT
TO LEGAL USES UNDER CONTROLLING UNITED STATES LAWS.  NEITHER THE WORDS
NOR THE SCHEME OF THE STATUTE IN QUESTION, NOR ANY OTHER RELEVANT
MATERIAL POINTED OUT TO US, INDICATE THAT THE OKLAHOMA LEGISLATURE HAD
SUCH A PURPOSE.  HAD THE LEGISLATURE EXPRESSED SUCH A PURPOSE,
QUESTIONS WOULD BE RAISED WHICH WE NEED NOT HERE CONSIDER.  SEE COLLINS
V. YOSEMITE PARK & CURRY CO., 304 U.S. 518, 533; PACIFIC COAST DAIRY V.
DEPARTMENT OF AGRICULTURE, 318 U.S. 285, 295.  CONSEQUENTLY, WE FIND NO
JUSTIFICATION FOR THE SEIZURE IN OKLAHOMA LAW. 

SECOND.  BUT IT IS SAID THAT DESPITE THE FACT THE SEIZURE WAS ILLEGAL
AND WHOLLY WITHOUT JUSTIFICATION, THE CONSIGNEE COULD NOT HAVE RECEIVED
THE LIQUORS WITHOUT VIOLATING THE LAWS OF THE UNITED STATES AND FOR
THAT REASON THE DISTRICT COURT SHOULD HAVE DENIED THE CARRIER ANY
RELIEF UNDER THE "CLEAN HANDS" DOCTRINE. 

WE MAY ASSUME THAT BECAUSE OF THE CLEAN HANDS DOCTRINE A FEDERAL
COURT SHOULD NOT, IN AN ORDINARY CASE, LEND ITS JUDICIAL POWER TO A
PLAINTIFF WHO SEEKS TO INVOKE THAT POWER FOR THE PURPOSE OF
CONSUMMATING A TRANSACTION IN CLEAR VIOLATION OF LAW.  FN4  BUT THIS
DOES NOT MEAN THAT COURTS MUST ALWAYS PERMIT A DEFENDANT WRONGDOER TO
RETAIN THE PROFITS OF HIS WRONGDOING MERELY BECAUSE THE PLAINTIFF
HIMSELF IS POSSIBLY GUILTY OF TRANSGRESSING THE LAW IN THE TRANSACTIONS
INVOLVED.  FN5  THE MAXIM THAT HE WHO COMES INTO EQUITY MUST COME WITH
CLEAN HANDS IS NOT APPLIED BY WAY OF PUNISHMENT FOR AN UNCLEAN LITIGANT
BUT "UPON CONSIDERATIONS THAT MAKE FOR THE ADVANCEMENT OF RIGHT AND
JUSTICE."  KEYSTONE DRILLER CO. V. GENERAL EXCAVATOR CO., 290 U.S. 240,
245.  IT IS NOT A RIGID FORMULA WHICH "TRAMMELS THE FREE AND JUST
EXERCISE OF DISCRETION."  IBID., 245, 246.  THEREFORE, BEFORE DECIDING
THE APPLICABILITY OF THE MAXIM TO THE CASE AT HAND, WE MUST EXAMINE THE
PARTICULAR TRANSACTIONS AND CIRCUMSTANCES INVOLVED TOGETHER WITH THE
FEDERAL LAWS WHICH ARE ALLEGED TO TAINT THESE TRANSACTIONS WITH
ILLEGALITY. 

AS SHOWN BY THE STIPULATED FACTS IN THIS RECORD, THE CIRCUMSTANCES OF
THE LIQUOR SHIPMENT WERE AS FOLLOWS:  FORT SILL HAD AN OFFICERS' CLUB,
WHICH PROVIDED AMONG OTHER THINGS AN OFFICERS' MESS, LIVING QUARTERS
FOR SOME OFFICERS, AND OTHER CUSTOMARY CLUB FACILITIES.  SEVERAL
HUNDRED OFFICER-MEMBERS GAVE TO THE CLUB SECRETARY, HIMSELF AN OFFICER,
SEPARATE WRITTEN ORDERS FOR LIQUOR TOGETHER WITH MONEY OR CHECKS IN
PAYMENT FOR THE RESPECTIVE ORDERS.  ACTING FOR THE OFFICER-MEMBERS, THE
SECRETARY TELEPHONED FROM FORT SILL TO A DEALER AT EAST ST. LOUIS,
ILLINOIS, AND ORDERED THE LIQUORS SHIPPED TO THE CLUB.  THE DEALER
DELIVERED THE LIQUORS TO THE RESPONDENT-CARRIER UNDER A UNIFORM THROUGH
BILL OF LADING.  IT WAS THIS SHIPMENT WHICH THE STATE OFFICIALS
SEIZED.  HAD THE SHIPMENT NOT BEEN SEIZED IT WOULD HAVE ARRIVED AT THE
CLUB FOR DELIVERY TO THE SEVERAL OFFICERS WHO HAD PAID FOR IT. 

IT IS FIRST CONTENDED THAT PURCHASE AND DELIVERY OF THE LIQUORS WERE
IN VIOLATION OF U.S.C. TITLE 10, SEC. 1350, SET OUT IN THE MARGIN.  FN6
THE AGREED FACTS, SUMMARIZED ABOVE, SUFFICIENTLY SHOW THAT THE
TRANSACTIONS WERE NOT IN VIOLATION OF THIS STATUTE. 

PETITIONERS NEXT ARGUE THAT THE LIQUOR TRANSACTIONS HERE INVOLVED
WERE IN VIOLATION OF THE ASSIMILATIVE CRIMES STATUTE N7.  THIS STATUTE,
IT IS SAID, ADOPTS ALL OF THE VARIOUS PENAL STATUTES OF OKLAHOMA
RELATING TO LIQUOR AND MAKES THEM THE FEDERAL LAW APPLICABLE TO THE
FORT SILL RESERVATION.  CF. UNITED STATES V. PRESS PUBLISHING CO., 219
U.S. 1; FRANKLIN V. UNITED STATES, 216 U.S. 559.  PETITIONERS' ARGUMENT
AS TO THE APPLICABILITY OF THE ASSIMILATIVE CRIMES STATUTE RAISES AT
LEAST THREE DISTINCT QUESTIONS, NO ONE OF WHICH IS EASILY RESOLVED:
(1)  WHICH, IF ANY, OF THE OKLAHOMA PENAL STATUTES ARE SO DESIGNED THAT
THEY COULD BE ADOPTED BY THE ASSIMILATIVE CRIMES STATUTE AND APPLIED TO
FORT SILL?  FN8  SEE OPINIONS OF CIRCUIT COURT OF APPEALS, SUPRA; CF.
MURRAY V. GERRICK & CO., 291 U.S. 315.  (2) IF THERE ARE OKLAHOMA
STATUTES WHICH COULD BE SO ADOPTED, ARE ALL OR ANY OF THEM IN CONFLICT
WITH FEDERAL POLICIES AS EXPRESSED BY ACTS OF CONGRESS OTHER THAN THE
ASSIMILATIVE CRIMES STATUTE OR BY VALID ARMY REGULATIONS  FN9  WHICH
HAVE THE FORCE OF LAW?  FN10  CF. STEWART & CO. V. SADRAKULA, 309 U.S.
94, 99-104.  (3) ASSUMING THAT CERTAIN OKLAHOMA STATUTES ARE ADAPTABLE,
AND ARE NOT INCONSISTENT WITH FEDERAL POLICIES, WOULD SUCH STATUTES
MAKE PENAL THE LIQUOR TRANSACTIONS HERE STIPULATED TO HAVE TAKEN
PLACE?  INEXTRICABLY INVOLVED IN EACH OF THE THREE QUESTIONS IS THE
FURTHER PROBLEM OF WHETHER CERTAIN OF THE OKLAHOMA LIQUOR STATUTES MAY
BE INCONSISTENT WITH OKLAHOMA'S CONSTITUTION AS INTERPRETED BY THE
OKLAHOMA SUPREME COURT.  SEE OPINIONS OF THE CIRCUIT COURT OF APPEALS,
SUPRA; EX PARTE WILSON, 6 OKLA. CR. 451, 119 P. 596; MORSE V. STATE, 63
OKLA. CR. 445, 77 P.2D 757. 

CONSIDERING THE DIFFICULTY AND IMPORTANCE OF A CORRECT DECISION OF
THE NOVEL ISSUES WHICH AN ATTEMPT TO CONSTRUE THIS FEDERAL CRIMINAL
STATUTE WOULD PRESENT, TOGETHER WITH THE OTHER CIRCUMSTANCES OF THE
PRESENT CASE, WE ARE CONVINCED THAT IN THE INTEREST OF SOUND
ADMINISTRATION OF JUSTICE WE SHOULD REFRAIN FROM A COMPLETE EXPLORATION
OF THESE ISSUES IN THIS PROCEEDING, ESPECIALLY SINCE THESE ISSUES ARE
ONLY COLLATERAL TO THE PRINCIPAL ISSUE OF THE LEGALITY OF THE SEIZURE
OF THE LIQUOR.  WERE WE TO DECIDE THAT THE ASSIMILATIVE CRIMES STATUTE
IS NOT APPLICABLE TO THIS SHIPMENT OF LIQUORS, WE WOULD, IN EFFECT, BE
CONSTRUING A FEDERAL CRIMINAL STATUTE AGAINST THE UNITED STATES IN A
PROCEEDING IN WHICH THE UNITED STATES HAS NEVER BEEN REPRESENTED.  AND,
ON THE OTHER HAND, SHOULD WE DECIDE THE STATUTE OUTLAWS THE SHIPMENT,
SUCH A DECISION WOULD BE EQUIVALENT TO A HOLDING THAT MORE THAN 200
ARMY OFFICERS, SWORN TO SUPPORT THE CONSTITUTION, HAD PARTICIPATED IN A
CONSPIRACY TO VIOLATE FEDERAL LAW.  NOT ONLY THAT, IT WOULD FOR
PRACTICAL PURPOSES BE ACCEPTED AS AN AUTHORITATIVE DETERMINATION THAT
ALL ARMY RESERVATIONS IN THE STATE OF OKLAHOMA MUST CONDUCT THEIR
ACTIVITIES IN ACCORDANCE WITH NUMEROUS OKLAHOMA LIQUOR REGULATIONS,
SOME OF WHICH, AT LEAST, ARE OF DOUBTFUL ADAPTABILITY.  AND ALL OF THIS
WOULD BE DECIDED IN A CASE WHEREIN NEITHER THE ARMY OFFICERS NOR THE
WAR DEPARTMENT NOR THE ATTORNEY GENERAL OF THE UNITED STATES HAVE BEEN
REPRESENTED, AND UPON A RECORD CONSISTING OF STIPULATIONS BETWEEN A
PRIVATE CARRIER AND THE LEGAL REPRESENTATIVES OF OKLAHOMA. 

NOR IS IT ANY ANSWER TO SAY THAT THE CARRIER SHOULD BE COMPELLED TO
SUE IN THE OKLAHOMA STATE COURTS TO RECLAIM THE LIQUORS IN ORDER TO
GIVE THE OKLAHOMA COURTS THE OPPORTUNITY COLLATERALLY TO PASS UPON THE
QUESTION OF WHETHER THESE LIQUOR TRANSACTIONS VIOLATE THE FEDERAL
ASSIMILATIVE CRIMES STATUTE.  THAT BROAD QUESTION, THOUGH SOME PARTS OF
IT INVOLVE A CONSIDERATION OF THE PROPER SCOPE OF THE STATE LAW ADOPTED
BY THE FEDERAL GOVERNMENT, IS IN THE FINAL ANALYSIS A QUESTION OF THE
CORRECT INTERPRETATION OF A FEDERAL CRIMINAL STATUTE, AND THEREFORE AN
ISSUE UPON WHICH FEDERAL COURTS ARE NOT BOUND BY THE RULINGS OF STATE
COURTS.  PUERTO RICO V. SHELL CO., 302 U.S. 253, 266.  INDEED CONGRESS
HAS VESTED IN THE FEDERAL COURTS EXCLUSIVE JURISDICTION OVER THE TRIAL
OF ALL FEDERAL CRIMES.  JUDICIAL CODE SEC. 256 AS AMENDED, 28 U.S.C.
SEC. 371.  AND SO, EVEN IF THE CARRIER COULD BRING SUIT IN AN OKLAHOMA
STATE COURT TO RECLAIM THE LIQUOR, A POINT WHICH IS ITSELF SUBJECT TO
SOME DOUBT,  FN11  THE FEDERAL DISTRICT COURT SHOULD NOT FOR THAT
REASON REFUSE RELIEF IN THE PRESENT SUIT. 

THE ULTIMATE QUESTION IN THIS PART OF THE CASE IS WHETHER THE
CARRIER, WHOSE COMPLETE GOOD FAITH IS IN NO WAY QUESTIONED, SHOULD HAVE
THE COURT'S DOORS SHUT TO IT.  SO TO HOLD WOULD BE TO SAY THAT THE
STATE OFFICIALS, WHO SO FAR AS THIS RECORD SHOWS, HAD NO SEARCH WARRANT
OR JUDICIAL PROCESS OF ANY KIND,  FN12  COULD RETAIN LIQUORS WHICH THEY
SEIZED WITHOUT AUTHORITY OF LAW.  WE DO NOT FIND HERE ANY
"UNCONSCIENTIOUS OR INEQUITABLE ATTITUDE" ON THE PART OF THE CARRIER. 
INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS, 248 U.S. 215, 245.  AND
SO FAR AS THIS RECORD SHOWS, THE CARRIER, IN SEEKING RELIEF IN THE
COURTS AGAINST THE UNLAWFUL SEIZURE, HAS PROCEEDED IN THE ONLY
"PRACTICABLE AND ADEQUATE WAY"  FN13  AVAILABLE.    IF THE CARRIER'S
DELIVERY OF THESE LIQUORS ON THE FORT SILL RESERVATION WOULD VIOLATE
ANY FEDERAL LAW, FEDERAL AGENCIES EXIST WHICH ARE CHARGED WITH
RESPONSIBILITIES TO INSTITUTE APPROPRIATE PROCEEDINGS AGAINST THE
CARRIER IN FEDERAL TRIBUNALS.  IN SUCH PROCEEDINGS THE PARTIES WOULD BE
THE UNITED STATES AND THE CARRIER, AND THE ISSUE OF VIOLATION OF
FEDERAL LAWS WOULD BE DIRECTLY, AND NOT COLLATERALLY, PRESENTED.  THE
COMPLICATED FEDERAL QUESTIONS INVOLVED, CONCERNING VARIOUS FEDERAL
STATUTES AS WELL AS ARMY RULES AND REGULATIONS, COULD BE ANSWERED UPON
AN ADEQUATE PRESENTATION OF ALL FACTORS ESSENTIAL TO A RIGHT AND JUST
DETERMINATION. 

AND, SIMILARLY, IF THE SEVERAL HUNDRED ARMY OFFICERS WHO ORDERED AND
PAID FOR THESE LIQUORS HAVE ACTED CONTRARY TO UNITED STATES STATUTES,
ARMY REGULATIONS, OR ORDERS OF THE POST COMMANDANT, IT IS NOT TO BE
DOUBTED THAT THE ARMY OR SOME OTHER UNITED STATES AGENCY IS CAPABLE OF
DETERMINING WHAT COURSE SHALL BE PURSUED.  SHOULD THE UNITED STATES
DETERMINE TO PROCEED IN THE MATTER IT COULD DO SO AT SUCH TIME AND
PLACE AS LEAST WOULD HAMPER ESSENTIAL MILITARY TRAINING, AND THE ARMY
OFFICERS WOULD BE HEARD BEFORE THEY WOULD BE STIGMATIZED AS LAW
BREAKERS AND SUBJECTED AS SUCH TO ARMY DISCIPLINE.  WE WILL NOT, AT
THIS TIME, AND UPON THIS INADEQUATE RECORD, RESOLVE ALL DOUBTS AGAINST
THE LAWFULNESS OF THEIR CONDUCT IN ORDER TO DENY RELIEF AGAINST A
PLAINLY UNLAWFUL SEIZURE OF THEIR PROPERTY FROM AN INTERSTATE CARRIER
WHOSE GOOD FAITH HAS NOT BEEN QUESTIONED.  AFFIRMED. 

FN1  OKLAHOMA LAWS, 1913, C. 52, P. 90. 

FN2  SEE UTLEY V. STATE INDUSTRIAL COMMISSION, 176 OKLA. 255, 55 P.2D
762; IN RE ANNEXATION OF RENO QUARTERMASTER DEPOT MILITARY RESERVATION,
180 OKLA. 274, 69 P.2D 659. 

FN3  SEE COLLINS V. YOSEMITE PARK CO., 304 U.S. 518, 533; PACIFIC
COAST DAIRY V. DEPARTMENT OF AGRICULTURE, 318 U.S. 285, 294. 

FN4  SEE GENERALLY 2 POMEROY'S EQUITY JURISPRUDENCE (5TH ED.)  SECS. 
402, 403.  CF. BENTLEY V. TIBBALS, 223 F. 247, 252; BONNIE & CO. V.
BONNIE BROS., 160 KY. 487, 495, 169 S.W. 871. 

FN5  SEE, E.G., CATTS V. PHALEN, 2 HOW.  376; KINSMAN V. PARKHURST,
18 HOW.  289, 293; STARK V. GRANT, 16 N.Y.S. 526; MARTIN V. HODGE, 47
ARK. 378, 1 S.W. 694. 

FN6  "THE SALE OF OR DEALING IN, BEER, WINE OR ANY INTOXICATING
LIQUORS BY ANY PERSON IN ANY POST EXCHANGE OR CANTEEN OR ARMY TRANSPORT
OR UPON ANY PREMISES USED FOR MILITARY PURPOSES BY THE UNITED STATES,
IS HEREBY PROHIBITED.  THE SECRETARY OF WAR IS HEREBY DIRECTED TO CARRY
THE PROVISIONS OF THIS SECTION INTO FULL FORCE AND EFFECT."  31 STAT.
758; U.S.C. TITLE 10, SEC. 1350.  SEE NOTE 9, INFRA. 

FN7  "WHOEVER, WITHIN THE TERRITORIAL LIMITS OF ANY STATE,  ...  BUT
WITHIN OR UPON ANY OF THE PLACES NOW EXISTING OR HEREAFTER RESERVED OR
ACQUIRED, DESCRIBED IN SECTION 272 OF THE CRIMINAL CODE  ...  , SHALL
DO OR OMIT THE DOING OF ANY ACT OR THING WHICH IS NOT MADE PENAL BY ANY
LAWS OF CONGRESS, BUT WHICH IF COMMITTED OR OMITTED WITHIN THE
JURISDICTION OF THE STATE, TERRITORY, OR DISTRICT IN WHICH SUCH PLACE
IS SITUATED, BY THE LAWS THEREOF IN FORCE ON FEBRUARY 1, 1940, AND
REMAINING IN FORCE AT THE TIME OF THE DOING OR OMITTING THE DOING OF
SUCH ACT OR THING, WOULD BE PENAL, SHALL BE DEEMED GUILTY OF A LIKE
OFFENSE AND BE SUBJECT TO A LIKE PUNISHMENT."  54 STAT. 234, U.S.C.
TITLE 18, SEC. 468.  SECTION 272 OF THE CRIMINAL CODE, REFERRED TO IN
THIS ACT, IS BROAD ENOUGH TO INCLUDE THE FORT SILL RESERVATION.  35
STAT. 1143. 

FN8  THE OKLAHOMA LIQUOR STATUTES PERTAINING TO LIQUOR IMPORTS
PROVIDE ONE ILLUSTRATION OF THE DIFFICULTIES INHERENT IN THIS
QUESTION.  THESE PENAL STATUTES ARE DESIGNED TO ENFORCE A SYSTEM OF
LICENSING SUCH IMPORTS BY SPECIAL PERMITS ISSUED BY A STATE AGENCY. 
OKLA. STAT. (1941) TITLE 37, SECS. 41-48.  IMPORTATION OF LIQUORS
WITHOUT A SPECIAL PERMIT IS MADE PENAL.  IBID., SECS. 41, 46.  TO HOLD,
THEREFORE, THAT THE ASSIMILATIVE CRIMES STATUTE ADOPTS OKLAHOMA'S PENAL
LIQUOR LAWS THE COURT MIGHT FURTHER HAVE TO HOLD THAT THAT STATUTE
COMPELS FEDERAL OFFICIALS ON THE FORT SILL RESERVATION TO APPLY FOR AND
OBTAIN STATE PERMITS BEFORE THEY CAN LAWFULLY IMPORT ANY LIQUORS FOR
ANY PURPOSE.  AND A STRONG ARGUMENT MIGHT BE MADE THAT HAD CONGRESS
INTENDED SUCH A DRASTIC RESULT, IT WOULD HAVE CONSIDERED THE PROBLEM
AND USED MORE EXPRESS LANGUAGE.  SEE NOTE 7, SUPRA; SENATE REPORT NO.
1699, SENATE JUDICIARY COMMITTEE, 76TH CONG., 3D SESS.; HOUSE REPORT
NO. 1584, HOUSE JUDICIARY COMMITTEE, 76TH CONG., 3D SESS.  CF. COLLINS
V. YOSEMITE PARK CO., 304 U.S. 518, 533. 

FN9  ARMY REGULATIONS HAVE DECLARED CERTAIN LIQUOR POLICIES FOR ARMY
RESERVATIONS GENERALLY.  SEE, E.G., A.G. 250.1(1-20-43), CONCERNING THE
SALE OF LIQUOR UPON PREMISES USED FOR MILITARY PURPOSES BY THE UNITED
STATES, PUBLISHED BY THE WAR DEPARTMENT ON JANUARY 25, 1943, IN
CIRCULAR NO. 29; AND A.R. 210-65, CONCERNING ARMY EXCHANGES, PUBLISHED
BY THE WAR DEPARTMENT ON MARCH 19, 1943.  PETITIONERS HAVE NOT
CONTENDED THAT THE LIQUOR TRANSACTIONS HERE WERE CONTRARY TO ANY ARMY
REGULATIONS, AND NO REGULATIONS HAVE COME TO OUR ATTENTION WHICH WOULD
INDICATE THAT THERE IS A BASIS FOR SUCH A CONTENTION.  WHETHER THE
DECLARATION OF POLICIES CONTAINED IN THESE VARIOUS REGULATIONS
INDICATES AN INTENTION OF THE WAR DEPARTMENT TO PERMIT ALL LIQUOR
TRANSACTIONS NOT EXPRESSLY PROHIBITED, AND WHETHER, IF IT DOES, THE WAR
DEPARTMENT HAS THE POWER UNDER ACTS OF CONGRESS TO PERMIT SUCH
TRANSACTIONS, SEEM OPEN QUESTIONS. 

FN10  STANDARD OIL CO. V. JOHNSON, 316 U.S. 481, 484. 

FN11  NOTHING IN THE RECORD OR BRIEFS JUSTIFIES THE CONCLUSION THAT
THE CARRIER COULD BRING SUCH A PROCEEDING IN THE STATE COURTS.  AND SEE
OKLA. STAT. (1941) TITLE 37, SECS. 72, 86, AND 89; BLUNK V. WAUGH, 32
OKLA. 616, 122 P. 717; LEE V. STATE, 180 OKLA. 643, 71 P.2D 1090; CF.
1942 CHEVROLET AUTOMOBILE MOTOR NO. BA-193397 V. STATE, 191 OKLA. 26,
27, 128 P.2D 448.  NOR HAS THERE BEEN ANY ATTEMPT TO SHOW THAT, IF THE
CARRIER COULD BRING SUCH A PROCEEDING, THE ARMY OFFICERS, THE WAR
DEPARTMENT, AND THE ATTORNEY GENERAL OF THE UNITED STATES COULD
INTERVENE ON THE COLLATERAL ISSUE OF "CLEAN HANDS." 

FN12  UNDER OKLAHOMA LAW THERE ARE NO "PROPERTY RIGHTS" IN LIQUOR. 
OKLA. STAT. (1941) TITLE 37, SEC. 72.  OFFICERS WITH POWER TO EXECUTE
CRIMINAL PROCESS MAY ARREST WITHOUT A WARRANT ONE WHO VIOLATES THE
STATE LIQUOR LAWS, AND SEIZE THE PROPERTY USED IN THE VIOLATION, AND IT
IS THEIR DUTY TO TAKE THE PROPERTY BEFORE A COURT WHICH MAY ORDER IT
FORFEITED AND DESTROYED.  IBID., SECS. 89, 90.  AS STATED IN THE BODY
OF THE OPINION, THE RECORD DOES NOT SHOW THAT PROCEEDINGS OF ANY KIND
WERE EVER INSTITUTED, OR SOUGHT TO BE INSTITUTED, IN THE STATE COURTS. 

FN13  MCFARLAND V. AMERICAN SUGAR REFINING CO., 241 U.S. 79, 84-85;
SEE ALSO BOWMAN V. CHICAGO & NORTHWESTERN RY. CO., 125 U.S. 465. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

MR. JUSTICE ROBERTS AND I ARE UNABLE TO AGREE WITH THE COURT'S
DECISION. 

THE ULTIMATE ISSUE IN THIS CASE IS WHETHER A FEDERAL COURT SHOULD, BY
ISSUING AN INJUNCTION, AID IN THE CONSUMMATION OF WHAT APPEARS TO BE A
VIOLATION OF THE CRIMINAL CODE OF THE UNITED STATES.  FOR IT MUST NOT
BE FORGOTTEN THAT A MANDATORY INJUNCTION, THE RELIEF SOUGHT IN THIS
SUIT, "IS AN EXTRAORDINARY REMEDIAL PROCESS WHICH IS GRANTED, NOT AS A
MATTER OF RIGHT BUT IN THE EXERCISE OF A SOUND JUDICIAL DISCRETION." 
MORRISON V. WORK, 266 U.S. 481, 490. 

A LARGE SHIPMENT OF WINE AND SPIRITUOUS LIQUORS WAS SEIZED BY LAW
ENFORCEMENT OFFICERS OF THE STATE OF OKLAHOMA WHILE THE LIQUOR HAD
TEMPORARILY COME TO REST AT THE TERMINAL OF THE TRANSIT COMPANY.  THE
LIQUOR, IN COURSE OF TRANSIT FROM EAST ST. LOUIS, ILLINOIS, TO THE FORT
SILL, MILITARY RESERVATION, WAS DESTINED FOR THE OFFICERS CLUB AT THE
RESERVATION FOR DELIVERY TO SEVERAL HUNDRED MEMBERS OF THE CLUB ON
WHOSE BEHALF ITS SECRETARY WAS MANAGING THE IMPORTATION OF THE LIQUOR. 
UPON SEIZURE THE LIQUOR WAS DEPOSITED IN THE COUNTY COURT HOUSE OF
OKLAHOMA COUNTY, WHERE IT IS HELD AS AN ILLEGAL SHIPMENT OF
INTOXICATING LIQUOR SUBJECT TO FORFEITURE AND DESTRUCTION.  THEREUPON
THE TRANSIT COMPANY BROUGHT THIS SUIT FOR A MANDATORY INJUNCTION
AGAINST THE STATE OFFICERS, REQUIRING THEM TO RETURN THE SHIPMENT AND
TO REFRAIN FROM INTERFERING WITH ITS DELIVERY BY THE TRANSIT COMPANY AT
THE RESERVATION.  THE INJUNCTION ISSUED AND THE CIRCUIT COURT OF
APPEALS, IN TWO SEPARATE OPINIONS, APPROVED, WITH ONE JUDGE
DISSENTING.  48 F.SUPP.  594; 137 F.2D 274. 

THE FACTS ESTABLISH THAT THAT WHICH WAS DONE, IF IT HAD BEEN DONE IN
OKLAHOMA PROPER, WOULD UNDER ITS LAWS HAVE CONSTITUTED A MISDEMEANOR. 
DELIVERY OF THE LIQUOR ON THE RESERVATION WOULD THEREFORE BE AN OFFENSE
UNDER THE FEDERAL CRIMINAL LAW BY VIRTUE OF THE ACT OF JUNE 6TH, 1940,
54 STAT. 234, WHEREBY CONGRESS MADE APPLICABLE TO THE RESERVATION THE
PENAL LAWS OF OKLAHOMA IN EXISTENCE ON FEBRUARY 1, 1940, 18 U.S.C. SEC.
468.  BUT EVEN IF THERE WERE DOUBT THAT THE IMPORTATION OF THE LIQUOR
INTO THE RESERVATION UNDER THE CIRCUMSTANCES OF THIS RECORD WOULD
OFFEND THE CRIMINAL CODE OF THE UNITED STATES, ON THE GROUND THAT THE
ACT IF COMMITTED WITHIN THE JURISDICTION OF OKLAHOMA "BY THE LAWS
THEREOF IN FORCE ON FEBRUARY 1, 1940  ...  WOULD BE PENAL," EQUITY
SHOULD RESOLVE THE DOUBT IN FAVOR OF LAW BY DENYING THE EXTRAORDINARY
REMEDY OF INJUNCTION INSTEAD OF RESOLVING IT AGAINST LAW BY GRANTING
THE INJUNCTION. 

OKLAHOMA IS, COLLOQUIALLY SPEAKING, A DRY STATE.  ONLY FOR STRICTLY
DEFINED PURPOSES MAY LIQUOR FROM WITHOUT THE STATE BE LAWFULLY BROUGHT
INTO IT FOR CONSUMPTION.  PROHIBITED IMPORTATIONS ARE PENALIZED.  IF A
TRANSACTION LIKE THE ONE BEFORE US RELATED WHOLLY TO OKLAHOMA SOIL IT
WOULD - THERE CAN HARDLY BE DOUBT - BE OUTLAWED.  THE CIRCUIT JUDGE WHO
SPEAKS WITH SPECIAL KNOWLEDGE OF OKLAHOMA LAW ASSURES US THAT "THE
STATE OF OKLAHOMA, BY ITS CONSTITUTION AND LAWS, MAKES IT UNLAWFUL TO
POSSESS, TRANSPORT, FURNISH, OR RECEIVE THIS PARTICULAR SHIPMENT OF
INTOXICATING LIQUOR, AND IT IS THEREFORE CONTRABAND AND SUBJECT TO
SEIZURE AND CONFISCATION UNDER THE LAWS OF THE STATE," 137 F.2D AT
279.  JUDGE MURRAH CALLS SPECIFIC ATTENTION TO AN OKLAHOMA STATUTE
WHICH MAKES IT A MISDEMEANOR "FOR ANY PERSON IN THIS STATE TO RECEIVE
DIRECTLY OR INDIRECTLY ANY LIQUORS, THE SALE OF WHICH ARE PROHIBITED BY
THE LAWS OF THIS STATE, FROM A COMMON OR OTHER CARRIER."  FN1  THE
OPINION OF JUDGE PHILLIPS RECOGNIZES THAT THIS ACT OF 1917 PENALIZES
THE TRANSACTION BEFORE US WITHIN OKLAHOMA, BUT REJECTS ITS BEARING WHEN
A FEDERAL COURT IS ASKED TO GRANT AN INJUNCTION INVOLVING THIS LAW BY
SUGGESTING THAT THIS STATUTE IS "UNCONSTITUTIONAL."  HE BASES THIS
SUGGESTION ON THE ARGUMENT THAT INASMUCH AS THE OKLAHOMA SUPREME COURT
HAS HELD THAT A STATUTE MAKING MERE POSSESSION OF OVER ONE QUART OF
SPIRITUOUS LIQUORS UNLAWFUL IS NOT "A REASONABLE EXERCISE OF THE POLICE
POWERS," AND THEREFORE BEYOND THE POWER OF THE LEGISLATURE TO MAKE
UNLAWFUL, EX PARTE WILSON, 6 OKLA. CR. 451, 475, "IT MUST LIKEWISE BE
BEYOND ITS POWER TO MAKE UNLAWFUL THE POSSESSION OF INTOXICATING LIQUOR
FOR PERSONAL USE RECEIVED FROM A COMMON CARRIER."  137 F.2D AT 277. 
FN2  IN OTHER WORDS, IT IS ARGUED THAT BECAUSE THE OKLAHOMA SUPREME
COURT HELD THAT THE MERE POSSESSION OF LIQUOR CANNOT BE MADE A CRIME BY
OKLAHOMA, OKLAHOMA CANNOT PROHIBIT THE RECEIPT OF LIQUOR FROM A
CARRIER.  ON SUCH REASONING A LAW THAT HAS BEEN ON THE OKLAHOMA STATUTE
BOOKS FOR MORE THAN TWENTY-FIVE YEARS, AND DURING THAT PERIOD ACTIVELY
ENFORCED AND NEVER QUESTIONED, IS THROWN INTO DISCARD WHEN A FEDERAL
COURT IS ASKED TO EXERCISE ITS DUTY OF DISCRETION IN GRANTING THE
EXTRAORDINARY RELIEF OF AN INJUNCTION.  I AM UNABLE TO FOLLOW SUCH
REASONING BECAUSE OKLAHOMA LAW MAKES IT BASELESS.  THE VALIDITY OF THIS
PROVISION, AS ALREADY INDICATED, HAS BEEN TAKEN FOR GRANTED BY THE
OKLAHOMA COURTS.  IT WAS THE SUBJECT OF LITIGATION IN DE HASQUE V.
ATCHISON, T. & S.F. RY. CO., 68 OKLA. 183, 173 P. 73, AND CROSSLAND V.
STATE, 74 OKLA. 58, 176 P. 944, AND A CONVICTION UNDER THIS SECTION WAS
SUSTAINED IN WALKER V. STATE, 18 OKLA. CR. 661, 197 P. 520.  THIS IS A
SPECIFIC STATUTE, THE CONTINUING VALIDITY OF WHICH IS WHOLLY UNAFFECTED
BY SPECULATIVE DOUBTS REGARDING OTHER AND IRRELEVANT LIQUOR LEGISLATION
OF OKLAHOMA.  THE DISSENTING JUDGE WAS JUSTIFIED IN READING THE ACT OF
1917 AS CONCLUSIVELY CONDEMNING THE TRANSACTION WHICH THE CARRIER WAS
SEEKING TO CONSUMMATE AS AN OFFENSE, WERE IT SUBJECT TO OKLAHOMA LAW. 
FN3 

BUT THE SHIPMENT OF LIQUOR IN CONTROVERSY WAS FOR DELIVERY ON THE
FORT SILL RESERVATION, THAT IS, A PLACE WITHIN THE PHYSICAL BOUNDARIES
OF OKLAHOMA BUT BEYOND ITS JURISDICTION.  IT WAS STIPULATED BETWEEN THE
PARTIES THAT THE PURPOSE OF THE SUIT WAS TO ENABLE THE TRANSIT COMPANY
TO TRANSPORT AND DELIVER THE SHIPMENT TO ITS DESTINATION IN THE
RESERVATION.  SUCH WAS THE BASIS OF THE DISTRICT COURT'S DECREE
REQUIRING THE RETURN OF THE SHIPMENT AND ENJOINING INTERFERENCE WITH
"DELIVERY OF SAID SHIPMENT TO ITS DESTINATION" AND NO PLACE ELSE.  THIS
BRINGS US TO THE SECOND HALF OF THE QUESTION IN THIS CASE:  MAY THE
TRANSIT COMPANY, ACCORDING TO THE LAW THAT RULES SUCH MATTERS ON THE
RESERVATION, LAWFULLY DELIVER THIS LIQUOR AT FORT SILL?  OF COURSE ALL
TRANSACTIONS ON THE RESERVATION ARE SUBJECT TO REGULATION BY CONGRESS. 
CONSTITUTION, ART. IV, SEC. 3, PAR. 2; SEE COLLINS V. YOSEMITE PARK
CO., 304 U.S. 518; PENN DAIRIES V. MILK CONTROL COMM'N, 318 U.S. 261;
PACIFIC COAST DAIRY V. DEPARTMENT OF AGRICULTURE, 318 U.S. 285.  IF IT
CHOOSES, CONGRESS MAY PROVIDE A RULE OF LAW WHICH RUNS COUNTER TO THE
EXPRESSED DRY POLICY OF OKLAHOMA, AND IT MAY DO SO EITHER SPECIFICALLY
FOR FORT SILL OR GENERALLY FOR ALL FEDERAL RESERVATIONS.  CONGRESS HAS
NOT DONE SO.  IT HAS DONE THE OPPOSITE.  FOR MORE THAN A HUNDRED YEARS
MOST OF THE RULES OF LIFE ON NATIONAL RESERVATIONS HAVE BEEN CONTROLLED
BY THE LAWS OF THE STATES IN WHICH THESE RESERVATIONS ARE LOCATED.  BY
THE ACT OF MARCH 3, 1825(4 STAT. 115), CONGRESS PROVIDED THAT WHEN
SOMETHING IS DONE ON A FEDERAL RESERVATION WHICH IS NOT MADE PENAL BY
THE LAWS OF CONGRESS BUT WHICH UNDER STATE LAW, IF THE STATE HAD
JURISDICTION, WOULD BE PUNISHABLE, THE ACT SHOULD BE EQUALLY PUNISHED
AS WRONGFUL IF COMMITTED ON THE RESERVATION.  IN THUS ADOPTING THE
PENAL LAWS OF THE STATES AS ITS CODE FOR LAWFUL CONDUCT ON FEDERAL
RESERVATIONS WITHIN THE STATES, CONGRESS DID NOT GIVE TO THE STATES A
FREE HAND TO IMPOSE THE CONTINUING PROCESS OF STATE LAW-MAKING ON
PLACES OVER WHICH THE UNITED STATES HAS JURISDICTION.  ONLY THE LAWS OF
THE STATES EXISTING AT THE TIME WHEN THE ACT OF MARCH 3, 1825 WAS
ENACTED BECAME OPERATIVE ON THE RESERVATIONS.  UNITED STATES V. PAUL, 6
PET. 141.  AND SO, IN VIEW OF THE INEVITABLE MODIFICATIONS AND
ADDITIONS IN THE PENAL LAWS OF THE STATES, CONGRESS HAS ACCOMMODATED
ITS ADOPTION OF THOSE STATE LAWS, AS THE GOVERNING FEDERAL LAW, BY
BRINGING UP TO DATE FROM TIME TO TIME ITS ADOPTION FOR ENFORCEMENT ON
FEDERAL RESERVATIONS OF THE POLICIES OF THE STATES WHICH HAVE PENAL
SANCTIONS.  ACCORDINGLY, THE ACT OF MARCH 3, 1825, WAS IN SUBSTANCE
REENACTED ON APRIL 5, 1866, 14 STAT. 12, 13, WAS CARRIED FORWARD IN
SEC. 5391 OF THE REVISED STATUTES OF 1878, WAS AGAIN REENACTED ON JULY
7, 1898, 30 STAT. 717, AND BECAME SEC. 289 OF THE FEDERAL PENAL CODE OF
1910, 35 STAT. 1088, 1145.  SINCE THEN AND IN RELATIVELY QUICK
SUCCESSION, CONGRESS HAS THREE TIMES BROUGHT STILL NEARER THE EFFECTIVE
DATE OF STATE PENAL LAWS APPLICABLE ON FEDERAL RESERVATIONS, TO WIT BY
THE AMENDMENTS OF JUNE 15, 1933, 48 STAT. 152; JUNE 20, 1935, 49 STAT.
394; AND JUNE 6, 1940, 54 STAT. 234.  THE LAST AMENDMENT NOW CONTROLS
WHEREBY "WHOEVER  ...  SHALL DO  ...  ANY ACT OR THING WHICH IS NOT
MADE PENAL BY ANY LAWS OF CONGRESS, BUT WHICH IF COMMITTED OR OMITTED
WITHIN THE JURISDICTION OF THE STATE, TERRITORY, OR DISTRICT IN WHICH
SUCH PLACE IS SITUATED, BY THE LAWS THEREOF IN FORCE ON FEBRUARY 1,
1940, AND REMAINING IN FORCE AT THE TIME OF THE DOING  ...  OF SUCH ACT
OR THING, WOULD BE PENAL, SHALL BE DEEMED GUILTY OF A LIKE OFFENSE AND
BE SUBJECT TO A LIKE PUNISHMENT."  18 U.S.C. SEC. 468. 

THE VERY IMPORTANT PURPOSE OF THIS LEGISLATION IN THE WORKING OF OUR
DUAL SYSTEM, AS EXPOUNDED AFTER THE FULLEST CONSIDERATION HERETOFORE
GIVEN TO THIS SUBJECT BY THIS COURT, BEARS REPETITION: "WHILE THE
STATUTE LEAVES NO DOUBT WHERE ACTS ARE DONE ON RESERVATIONS WHICH ARE
EXPRESSLY PROHIBITED AND PUNISHED AS CRIMES BY A LAW OF THE UNITED
STATES, THAT LAW IS DOMINANT AND CONTROLLING, YET, ON THE OTHER HAND,
WHERE NO LAW OF THE UNITED STATES HAS EXPRESSLY PROVIDED FOR THE
PUNISHMENT OF OFFENSES COMMITTED ON RESERVATIONS, ALL ACTS DONE ON SUCH
RESERVATIONS WHICH ARE MADE CRIMINAL BY THE LAWS OF THE SEVERAL STATES
ARE LEFT TO BE PUNISHED UNDER THE APPLICABLE STATE STATUTES.  WHEN
THESE RESULTS OF THE STATUTE ARE BORNE IN MIND IT BECOMES MANIFEST THAT
CONGRESS, IN ADOPTING IT, SEDULOUSLY CONSIDERED THE TWOFOLD CHARACTER
OF OUR CONSTITUTIONAL GOVERNMENT, AND HAD IN VIEW THE ENLIGHTENED
PURPOSE, SO FAR AS THE PUNISHMENT OF CRIME WAS CONCERNED, TO INTERFERE
AS LITTLE AS MIGHT BE WITH THE AUTHORITY OF THE STATES ON THAT SUBJECT
OVER ALL TERRITORY SITUATED WITHIN THEIR EXTERIOR BOUNDARIES, AND WHICH
HENCE WOULD BE SUBJECT TO EXCLUSIVE STATE JURISDICTION BUT FOR THE
EXISTENCE OF A UNITED STATES RESERVATION.  IN ACCOMPLISHING THESE
PURPOSES IT IS APPARENT THAT THE STATUTE, INSTEAD OF FIXING BY ITS OWN
TERMS THE PUNISHMENT FOR CRIMES COMMITTED ON SUCH RESERVATIONS WHICH
WERE NOT PREVIOUSLY PROVIDED FOR BY A LAW OF THE UNITED STATES, ADOPTED
AND WROTE IN THE STATE LAW, WITH THE SINGLE DIFFERENCE THAT THE
OFFENSE, ALTHOUGH PUNISHED AS AN OFFENSE AGAINST THE UNITED STATES, WAS
NEVERTHELESS PUNISHABLE ONLY IN THE WAY AND TO THE EXTENT THAT IT WOULD
HAVE BEEN PUNISHABLE IF THE TERRITORY EMBRACED BY THE RESERVATION
REMAINED SUBJECT TO THE JURISDICTION OF THE STATE."  UNITED STATES V.
PRESS PUBLISHING CO., 219 U.S. 1, 9-10.  FN4 

THEREFORE THE CRUCIAL QUESTION IN RELATION TO OUR PRESENT PROBLEM IS
WHETHER ANY LAW OF CONGRESS HAS OVERRIDDEN THE OKLAHOMA ACT OF 1917
WHICH MAKES UNLAWFUL THE TRANSACTION THAT THE TRANSIT COMPANY SEEKS TO
CONSUMMATE WITH THE AID OF AN INJUNCTION ISSUED BY A FEDERAL COURT. 

THERE IS NO SUCH LAW.  LONG BEFORE THE TWENTY-FIRST AMENDMENT,
CONGRESS DID PROVIDE THAT "THE SALE OF OR DEALING IN, BEER, WINE OR ANY
INTOXICATING LIQUORS BY ANY PERSON IN ANY POST EXCHANGE OR CANTEEN OR
ARMY TRANSPORT OR UPON ANY PREMISES USED FOR MILITARY PURPOSES BY THE
UNITED STATES, IS HEREBY PROHIBITED."  ACT OF FEBRUARY 2, 1901, SEC.
38, 31 STAT. 748, 758, 10 U.S.C. SEC. 1350.  PLAINLY, THE PURPOSE OF
THIS LEGISLATION IS NOT TO SUPPLANT SOCIAL POLICIES IN REGARD TO
ALCOHOLIC LIQUOR IN THE VARIOUS STATES WITHIN WHICH THE MANY FEDERAL
ENCLAVES ARE LOCATED EXCEPT TO THE EXTENT OF PROVIDING MINIMUM
REGULATIONS TO RESTRICT THE FREE DEALING IN LIQUOR AT ALL ARMY POSTS
INCLUDING THOSE WITHIN WET STATES.  THE SPECIFIC BARRIER THUS ERECTED
BY CONGRESS AGAINST THE LIBERAL LIQUOR POLICIES OF SOME STATES SHOULD
NOT NOW BE USED AS A QUALIFICATION OF THE GENERALITY OF THE
ASSIMILATIVE CRIMES STATUTE IN ORDER TO SERVE AS A BARRIER AGAINST THE
PROHIBITORY LAWS OF OTHER STATES.  NO SUCH POLICY CAN BE DRAWN FROM THE
ACT OF 1901 - QUITE THE OPPOSITE IS IMPLIED.  AND ASSUMING THAT THE
MILITARY COULD ASSERT SUCH A POLICY IN THE INTEREST OF ARMY MORALE,
THERE IS WHOLLY LACKING ANY MANIFESTATION THAT THE ARMY DEEMS IT
NECESSARY FOR THE MORALE OF ITS OFFICERS THAT AT FORT SILL CONDUCT
SHOULD BE PERMITTED WHICH IF COMMITTED IN THE SURROUNDING TERRITORY OF
OKLAHOMA WOULD OFFEND ITS PENAL LAWS.  SO FAR AS THE WAR DEPARTMENT HAS
INDICATED A POLICY, ITS POLICY LIKE THAT OF THE ASSIMILATIVE CRIMES
STATUTE IS TO ADOPT ON MILITARY RESERVATIONS THE LAWS OF THEIR
RESPECTIVE STATES.  THUS, IN REFERENCE TO A.G. 250.1, SEC. VI, PAR. 4(1
20-43) OF CIRCULAR NO. 29 OF THE WAR DEPARTMENT, JAN. 25, 1943,
PROVIDES:  "BEER OF AN ALCOHOLIC CONTENT NOT IN EXCESS OF 3.2 PER
CENTUM BY WEIGHT MAY BE SOLD OR DEALT IN UPON ANY OF THE MENTIONED
PREMISES UNLESS A STATE ENACTMENT OF THE STATE IN WHICH THE PREMISES
ARE LOCATED PROHIBITS THE SALE OF OR DEALING IN SUCH BEER THROUGHOUT
THE ENTIRE STATE."  AND THE JUDGE ADVOCATE GENERAL HAS SAID THAT "WAR
DEPARTMENT POLICY DOES NOT FAVOR SALE OF SUCH (3.2) BEER BY EXCHANGES
IN STATES WHERE ITS SALE IS ABSOLUTELY PROHIBITED  ...  "  BULLETIN OF
THE JUDGE ADVOCATE GENERAL OF THE ARMY, JULY 1942, P. 100, SEC. 310. 

EVEN IF THERE WERE MORE HYPOTHETICAL DOUBT THAN THE LAWS AND
DECISIONS OF OKLAHOMA MAKE MANIFEST AS TO THE VALIDITY AND VITALITY OF
THE ACT OF 1917 AND ITS APPLICABILITY TO THE IMPORTATION OF THE LIQUOR
SHIPMENT INVOLVED IN THIS CASE, IF THE IMPORTATION WERE INTO OKLAHOMA
PROPER, SUCH A CONTINGENCY SHOULD BE LEFT FOR DETERMINATION BY
APPROPRIATE PROCEEDINGS IN THE STATE COURT TO RECOVER THE LIQUOR AND
NOT BE MADE THE BASIS FOR AN INJUNCTION AGAINST THE STATE LAW IN THE
FEDERAL COURT.  SINCE FEDERAL LAW HERE TOO TURNS ON STATE LAW BY
ADOPTION THROUGH THE ASSIMILATIVE CRIMES STATUTE, THE BASIS OF OUR
DECISION IN PENN DAIRIES V. MILK CONTROL COMM'N, SUPRA, BECOMES
RELEVANT.  HERE, AS IN THAT CASE, THERE IS AN "ABSENCE OF SOME EVIDENCE
OF AN INFLEXIBLE CONGRESSIONAL POLICY," 318 U.S. AT 275, OPPOSED TO THE
POLICY EXPRESSED BY THE STATE.  IN THIS CASE AS IN THAT, WE SHOULD
THEREFORE BE SLOW TO STRIKE DOWN STATE LEGISLATION BY ELABORATE
IMPLICATIONS.  THE DISCRETIONARY POWERS OF EQUITY PARTICULARLY COUNSEL
AGAINST IT.  AND EVEN IF THERE WERE MORE DOUBT THAN APPEARS REGARDING
THE ADOPTION OF THE ACT OF 1917 BY THE ASSIMILATIVE CRIMES STATUTE,
WHEREBY THE DELIVERY OF THE LIQUOR BY THE TRANSIT COMPANY ON THE
RESERVATION WOULD CONSTITUTE A MISDEMEANOR, THAT DOUBT TOO SHOULD NOT
BE RESOLVED AGAINST THE LAW IN SUCH A PROCEEDING AS THIS FOR AN
INJUNCTION.  THAT QUESTION ALTHOUGH FEDERAL MAY ALSO BE LITIGATED AS
PART OF THE INDICATED STATE COURT SUIT, WHERE THE ATTORNEY GENERAL MAY
INTERVENE AND THEN COME HERE IF HE CHOOSES TO ASSERT WHATEVER POSITION
THE GOVERNMENT DEEMS IT APPROPRIATE TO PRESS. 

IN MY VIEW THEREFORE IT WAS AN INEQUITABLE EXERCISE OF DISCRETION TO
ISSUE THIS INJUNCTION.  OF COURSE, "EQUITY DOES NOT DEMAND THAT ITS
SUITORS SHALL HAVE LED BLAMELESS LIVES."  LOUGHRAN V. LOUGHRAN, 292
U.S. 216, 229.  BUT WHERE THE RELIEF SOUGHT IS NOT AS TO SOMETHING PAST
AND COLLATERAL, BUT WHERE IT IS THE VERY MEANS, AS IS THE CASE HERE,
FOR COMPLETING AN OUTLAWED TRANSACTION, A COURT OF EQUITY SHOULD
WITHHOLD ITS AID AND NOT BECOME THE PROMOTER OF WRONGDOING.  THE
POSSIBLE ILLEGALITY OF THE SEIZURE OF THE LIQUOR BY THE OKLAHOMA
ENFORCEMENT OFFICERS IS QUITE IRRELEVANT TO OUR PROBLEM.  "A QUESTION
OF PUBLIC POLICY IS PRESENTED - NOT A MERE ADJUDICATION OF ADVERSARY
RIGHTS BETWEEN THE TWO PARTIES."  WEIL V. NEARY, 278 U.S. 160, 171. 
THE ABSTENTION WHICH EQUITY EXERCISES, AS IT SHOULD HERE, UNDER THE
SHORT-HAND PHRASE OF THE "CLEAN HANDS DOCTRINE" IS NOT DUE TO ANY
DESIRE TO PUNISH A LITIGANT FOR HIS UNCLEANLINESS.  "BUT THE OBJECTION
THAT THE PLAINTIFF COMES WITH UNCLEAN HANDS WILL BE TAKEN BY THE COURT
ITSELF.  IT WILL BE TAKEN DESPITE THE WISH TO THE CONTRARY OF ALL THE
PARTIES TO THE LITIGATION.  THE COURT PROTECTS ITSELF."  MR. JUSTICE
BRANDEIS IN OLMSTEAD V. UNITED STATES, 277 U.S. 438, 485.  IT IS HARDLY
SEEMLY FOR A FEDERAL COURT TO ORDER THE RETURN OF LIQUOR SEIZED WITH
FULL KNOWLEDGE BY THE COURT THAT THE CARRIER WOULD USE THE LIQUOR TO
SHARE IN THE COMMISSION OF A MISDEMEANOR.  THE PENAL STATUTE HERE
APPLICABLE IS A POLICE REGULATION VIOLATION OF WHICH OUGHT NOT TO BE
FURTHERED BY A FEDERAL COURT.  WHILE ITS VIOLATION DOES NOT IMPLY MORAL
TURPITUDE, CONGRESS HAS REQUIRED THAT ARMY OFFICERS SHOULD ALSO CONFORM
TO THE LAW OF A STATE ON WHICH MILITARY RESERVATIONS ARE LOCATED IN
MATTERS THAT ARE OUTSIDE MILITARY CONCERN. 

FN1  "SECTION 1.  IT SHALL BE UNLAWFUL FOR ANY PERSON IN THIS STATE
TO RECEIVE DIRECTLY OR INDIRECTLY ANY LIQUORS, THE SALE OF WHICH IS
PROHIBITED BY THE LAWS OF THIS STATE, FROM A COMMON OR OTHER CARRIER. 

"IT SHALL ALSO BE UNLAWFUL FOR ANY PERSON IN THIS STATE TO POSSESS
ANY LIQUOR, THE SALE OF WHICH IS PROHIBITED BY THE LAWS OF THIS STATE,
RECEIVED DIRECTLY OR INDIRECTLY FROM A COMMON OR OTHER CARRIER IN THIS
STATE.  THIS SECTION SHALL APPLY TO SUCH LIQUORS INTENDED FOR PERSONAL
USE, AS WELL AS OTHERWISE, AND TO INTERSTATE AS WELL AS INTRASTATE
SHIPMENTS OR CARRIAGE.  ANY PERSON VIOLATING ANY PROVISION OF THIS
FINED NOT LESS THAN $50.00 NOR MORE THAN $500.00 AND BY IMPRISONMENT
FOR NOT LESS THAN THIRTY DAYS NOR MORE THAN SIX MONTHS; PROVIDED,
HOWEVER, THAT SCIENTIFIC INSTITUTIONS, UNIVERSITIES AND COLLEGES, AND
BONDED APOTHECARIES, DRUGGISTS, HOSPITALS OR PHARMACISTS MAY RECEIVE
AND POSSESS PURE GRAIN ALCOHOL, AS PROVIDED BY THE LAWS OF THIS STATE,
TO BE USED ONLY FOR SUCH PURPOSES AS ARE PRESCRIBED BY THE LAWS OF THIS
STATE."  LAWS 1917, CH. 186, P. 350, SEC. 1. 

FN2  EX PARTE WILSON WAS DECIDED IN 1911.  IN 1913, THE OKLAHOMA
LEGISLATURE ENACTED A STATUTE WHICH MADE THE POSSESSION OF MORE THAN
ONE QUART OF LIQUOR "PRIMA FACIE EVIDENCE OF AN INTENTION TO CONVEY,
SELL OR OTHERWISE DISPOSE OF SUCH LIQUORS."  LAWS 1913, C. 26, P. 48,
SEC. 6, 37 O.S.A. SEC. 82.  THE VALIDITY OF THIS STATUTE WAS UPHELD
(CAFFEE V. STATE, 11 OKLA. CR. 485, 148 P. 680), AND THE OKLAHOMA COURT
RULED THAT IT SUPERSEDED THE 1911 ACT WHICH HAD BEEN HELD INVALID.  CF.
JENKINS V. STATE, 28 OKLA. CR. 249, 230 P. 293; MORSE V. STATE, 63
OKLA. CR. 445, 458, 77 P.2D 757. 

FN3  AT LEAST ONE OTHER PROVISION OF OKLAHOMA LEGISLATION MAY WELL BE
FOUND TO OUTLAW THE DELIVERY OF THE SHIPMENT FOR THE COMPLETION OF
WHICH THE CARRIER IS SEEKING THE AID OF THE FEDERAL COURT.  CHAPTER 16,
P. 16, SEC. 1 OF THE LAWS OF 1939 MAKES IT "UNLAWFUL FOR ANY PERSON
...  TO IMPORT, BRING, TRANSPORT, OR CAUSE TO BE BROUGHT OR TRANSPORTED
INTO THE STATE OF OKLAHOMA, ANY INTOXICATING LIQUOR  ...  WITHOUT A
PERMIT FIRST SECURED THEREFOR AS HEREINAFTER PROVIDED."  37 O.S.A. SEC.
41.  PERMITS MAY BE ISSUED, UNDER SEC. 2 OF THAT ACT, ONLY FOR THE
IMPORTATION OF ALCOHOL FOR SCIENTIFIC, MECHANICAL, MEDICINAL OR
SACRAMENTAL PURPOSES.  37 O.S.A. SEC. 42.  SINCE THE IMPORTATION OF THE
LIQUOR HERE INVOLVED CANNOT POSSIBLY BE SAID TO FALL WITHIN THE
CLASSIFICATIONS FOR WHICH PERMITS ARE GRANTED, THESE STATUTORY
PROVISIONS AS APPLIED TO THE CIRCUMSTANCES IN THIS CASE ARE PENAL, AND
AS SUCH, MAY BE APPLICABLE TO THE RESERVATION UNDER THE ASSIMILATIVE
CRIMES ACT.  54 STAT. 234, 18 U.S.C. SEC. 468.  SEE INFRA. 

FN4  AND SEE WEBSTER, THE SPONSOR OF THE BILL IN THE SENATE, IN
REGISTER OF DEBATES IN CONGRESS (GALES & SEATON, 1825) VOL. I, P. 338:
"AS TO THE THIRD SECTION (THE PRECURSOR OF THE PRESENT ASSIMILATIVE
CRIMES ACT), IT MUST BE OBVIOUS, THAT, WHERE THE JURISDICTION OF A
SMALL PLACE, CONTAINING ONLY A FEW HUNDREDS OF PEOPLE, (A NAVY YARD FOR
INSTANCE,) WAS CEDED TO THE UNITED STATES, SOME PROVISION WAS REQUIRED
FOR THE PUNISHMENT OF OFFENCES; AND AS, FROM THE USE TO WHICH THE PLACE
WAS TO BE PUT, SOME CRIMES WERE LIKELY TO BE MORE FREQUENTLY COMMITTED
THAN OTHERS, THE COMMITTEE HAD THOUGHT IT SUFFICIENT TO PROVIDE FOR
THESE, AND THEN TO LEAVE THE RESIDUE TO BE PUNISHED BY THE LAWS OF THE
STATE IN WHICH THE YARD, &C. MIGHT BE.  HE WAS PERSUADED THAT THE
PEOPLE WOULD NOT VIEW IT AS ANY HARDSHIP, THAT THE GREAT CLASS OF MINOR
OFFENCES SHOULD CONTINUE TO BE PUNISHED IN THE SAME MANNER AS THEY HAD
BEEN BEFORE THE CESSION." 
..END :





ANDERSON V. ABBOTT, 321 U.S. 349 


NO. 3.  ARGUED FEBRUARY 8, 1943.  REARGUED JANUARY 12, 13, 1944.  -
DECIDED MARCH 6, 1944.  - 127 F.2D 696, REVERSED. 


1.  UPON THE FACTS, HELD THAT SHAREHOLDERS OF A BANK-STOCK HOLDING
COMPANY WERE LIABLE FOR AN ASSESSMENT ON SHARES OF A NATIONAL BANK IN
THE PORTFOLIO OF THE HOLDING COMPANY.  CONSTRUING FEDERAL RESERVE ACT,
SEC. 23; NATIONAL BANK ACT, SEC. 12.  P. 356. 

SO HELD OF SHAREHOLDERS WHO ACQUIRED THEIR HOLDING-COMPANY SHARES BY
PURCHASE AS WELL AS OF OTHERS WHO ACQUIRED THEIR HOLDING-COMPANY SHARES
BY TRANSFER OF BANK SHARES. 

2.  A JUDGMENT AGAINST THE HOLDING COMPANY IN A PRIOR SUIT BY THE
RECEIVER OF THE NATIONAL BANK WAS NOT RES JUDICATA OF THE CLAIM AGAINST
THE SHAREHOLDERS OF THE HOLDING COMPANY FOR THE BALANCE DUE ON THE
ASSESSMENT.  NOR BY INSTITUTING THE PRIOR SUIT AGAINST THE HOLDING
COMPANY DID THE RECEIVER MAKE AN ELECTION WHICH BARRED THE SUBSEQUENT
PROCEEDING AGAINST THE SHAREHOLDERS OF THE HOLDING COMPANY.  P. 354. 

3.  FINDINGS IN WHICH THE DISTRICT COURT AND THE CIRCUIT COURT OF
APPEALS CONCURRED, AND IN RESPECT OF WHICH NO CLEAR ERROR IS SHOWN,
ACCEPTED HERE.  P. 356. 

4.  WHERE A TRANSFEROR OF SHARES OF A NATIONAL BANK RETAINS THROUGH
HIS TRANSFEREE HIS INVESTMENT POSITION IN THE BANK, INCLUDING CONTROL,
HE CAN NOT ESCAPE THE STATUTORY LIABILITY IF HIS TRANSFEREE DOES NOT
HAVE RESOURCES COMMENSURATE WITH THE RISKS OF THOSE HOLDINGS.  IN SUCH
CASE, THE TRANSFEROR REMAINS LIABLE AS A "STOCKHOLDER" OR
"SHAREHOLDER," WITHIN THE MEANING OF THE APPLICABLE STATUTES, TO THE
EXTENT OF HIS INTEREST IN THE UNDERLYING SHARES OF THE BANK.  THIS
RESULT IS NECESSARY LEST THE PROTECTION AFFORDED BY THE DOUBLE
LIABILITY PROVISIONS BE LOST THROUGH TRANSFERS TO IMPECUNIOUS OR NOT
FULLY RESPONSIBLE HOLDING OR OPERATING COMPANIES WHOSE STOCK IS OWNED
BY THE TRANSFEROR.  P. 357. 

5.  WHETHER THE TRANSFER IS MADE IN AVOIDANCE OF THE DOUBLE
LIABILITY, OR FOR BUSINESS REASONS WHICH MAY BE CONSIDERED WHOLLY
LEGITIMATE, THE RESULT IS THE SAME, SINCE IN EITHER EVENT DEPOSITORS
ARE DEPRIVED OF THE BENEFIT OF DOUBLE LIABILITY.  P. 357. 

6.  THE HOLDING-COMPANY DEVICE HERE USED COULD BE SO READILY UTILIZED
TO CIRCUMVENT THE STATUTORY POLICY OF DOUBLE LIABILITY THAT THE
STOCKHOLDERS OF THE HOLDING COMPANY RATHER THAN THE DEPOSITORS OF THE
SUBSIDIARY BANKS MUST TAKE THE RISK OF THE FINANCIAL SUCCESS OF THE
UNDERTAKING.  P. 359. 

7.  STOCKHOLDERS OF THE HOLDING COMPANY ARE BOUND BY THE DECISION OF
THE DIRECTORS WHICH DETERMINED, WITHIN THE SCOPE OF THE CORPORATE
CHARTER, THE KIND AND QUALITY OF THE CORPORATE UNDERTAKING.  P. 361. 

8.  THAT STOCKHOLDERS OF THE HOLDING COMPANY MAY HAVE CLAIMS AGAINST
AN OFFICER OR DIRECTOR FOR MISMANAGEMENT DOES NOT RELIEVE THEM FROM
LIABILITY TO THE DEPOSITORS OF THE SUBSIDIARY BANKS.  P. 361. 

9.  THE QUESTION OF THE LIABILITY OF SHAREHOLDERS OF A HOLDING
COMPANY FOR ASSESSMENTS IN RESPECT OF NATIONAL BANK SHARES HELD BY IT
IS A FEDERAL QUESTION, UNAFFECTED BY THE LAW OF THE STATE OF
INCORPORATION OF THE HOLDING COMPANY.  P. 365. 

10.  THE INNOCENCE AND GOOD FAITH OF INVESTORS IN THE HOLDING COMPANY
ARE NOT AVAILABLE TO THEM AS DEFENSES IN THIS SUIT.  P. 366. 

11.  COURTS WILL NOT ALLOW THE INTERPOSITION OF A CORPORATION TO
DEFEAT A LEGISLATIVE POLICY.  P. 362. 

12.  THE LIABILITY OF THE SHAREHOLDERS OF THE HOLDING COMPANY IS TO
BE MEASURED BY THE NUMBER OF SHARES OF STOCK OF THE NATIONAL BANK,
WHETHER SEVERAL OR ONLY FRACTIONAL, REPRESENTED BY EACH SHARE OF STOCK
OF THE HOLDING COMPANY; AND THE ASSESSMENT LIABILITY OF EACH SHARE OF
STOCK OF THE HOLDING COMPANY MUST BE A LIKE PROPORTION OF THE
ASSESSMENT LIABILITY OF THE SHARES OF THE BANK REPRESENTED BY THE
FORMER.  P. 368. 

ANDERSON, RECEIVER, V. ABBOTT, ADMINISTRATRIX, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 317 U.S. 619, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT, 32 F.SUPP.  328, IN A SUIT BY A RECEIVER OF A
NATIONAL BANK AGAINST SHAREHOLDERS OF A HOLDING COMPANY TO RECOVER THE
BALANCE OF AN ASSESSMENT OF DOUBLE LIABILITY ON SHARES HELD BY THE
HOLDING COMPANY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE PRIMARY QUESTION IN THIS CASE IS WHETHER ON THESE FACTS
SHAREHOLDERS OF A BANK-STOCK HOLDING COMPANY ARE LIABLE UNDER SEC. 23
OF THE FEDERAL RESERVE ACT, 12 U.S.C. SEC. 64, AND SEC. 12 OF THE
NATIONAL BANK ACT, 12 U.S.C. SEC. 63, FOR AN ASSESSMENT ON SHARES OF A
NATIONAL BANK IN THE PORTFOLIO OF THE HOLDING COMPANY. 

THE ESSENTIAL FACTS  FN1  MAY BE BRIEFLY STATED. 

BANCOKENTUCKY COMPANY WAS ORGANIZED UNDER THE LAWS OF DELAWARE IN
JULY, 1929.  IT HAD BROAD CHARTER POWERS IN THE FIELD OF FINANCE.  IT
WAS ORGANIZED BY THE MANAGEMENT OF THE NATIONAL BANK OF KENTUCKY AND OF
THE LOUISVILLE TRUST COMPANY - BANKING HOUSES DOING BUSINESS AT
LOUISVILLE.  BANCO PERFECTED THE DESIRED ALLIANCE BETWEEN THEM BY
ACQUIRING MOST OF THEIR SHARES  FN2  IN EXCHANGE FOR ITS SHARES.  THE
BANK, THE TRUST COMPANY, AND BANCO EACH HAD THE SAME DIRECTORS AND
CERTAIN COMMON OFFICERS.  SOME OF THE SHAREHOLDERS WHO MADE THE
EXCHANGE ALSO PURCHASED ADDITIONAL SHARES OF BANCO STOCK AT $25 PER
SHARE.  BANCO STOCK WAS ALSO SOLD AT THAT PRICE ON THE MARKET TO THOSE
WHO DID NOT OWN ANY SHARES IN THE BANK OR THE TRUST COMPANY.  ALL TOLD
SOME $9,900,000 IN CASH WAS REALIZED BY BANCO FROM THE SALE OF ITS
SHARES - ABOUT $6,000,000 OF WHICH WAS FINANCED ON LOANS FROM THE BANK
AND FROM THE TRUST COMPANY.  BANCO'S STOCK CERTIFICATES STATED THAT THE
SHARES WERE "FULL-PAID AND NONASSESSABLE."  ITS CERTIFICATE OF
INCORPORATION PROVIDED THAT THE STOCKHOLDERS' PROPERTY SHOULD "NOT BE
SUBJECT TO THE PAYMENT OF CORPORATE DEBTS TO ANY EXTENT WHATEVER." 

THE CLOSING DATE FOR THE EXCHANGE OF SHARES WAS SEPTEMBER 19, 1929. 
BEGINNING ABOUT SEPTEMBER 25, 1929, BANCO ACQUIRED A MAJORITY STOCK
INTEREST IN EACH OF FIVE BANKS IN KENTUCKY AND TWO BANKS IN OHIO, AND A
MINORITY STOCK INTEREST IN ANOTHER BANK IN KENTUCKY.  OF THESE EIGHT
BANKS, TWO WERE NATIONAL.  THE SHARES OF THE STATE, AS WELL AS THE
NATIONAL, BANKS IN THE GROUP CARRIED A DOUBLE LIABILITY.  FN3  THE
PRICE PAID FOR THE SHARES IN THESE BANKS WAS ABOUT $11,500,000 - OF
WHICH SOME $6,500,000 WAS PAID IN CASH AND $5,000,000 IN BANCO'S
SHARES.  NOT ALL OF BANCO'S FUNDS WERE INVESTED IN BANK SHARES.  IT
ACQUIRED FOR $2,000,000 A $2,000,000 NOTE OF ITS PRESIDENT.  FN4 IT
PURCHASED 625 SHARES OF A LIFE INSURANCE COMPANY FOR $25,000 CASH.  IT
PURCHASED AND RETIRED 106,000 OF ITS OWN SHARES AT A COST OF OVER
$2,300,000 - SOME $275,000 LESS THAN BANCO RECEIVED FOR THEM.  IT
RECEIVED DIVIDENDS OF ABOUT $1,180,000 ON THE BANK STOCKS OWNED BY IT
AND PAID THEM OUT AT ONCE AS DIVIDENDS ON ITS OWN SHARES.  IT BORROWED
$2,600,000 FROM A NEW YORK BANK AND PAID BACK $1,000,000.  WITH
$600,000 OF THAT LOAN IT PURCHASED FROM THE BANK CERTAIN DUBIOUS ASSETS
FN5  - A TRANSACTION WHICH THE KENTUCKY COURT LATER SET ASIDE. 
BANCOKENTUCKY'S RECEIVER V. NATIONAL BANK OF KENTUCKY'S RECEIVER, 281
KY. 784, 137 S.W.2D 357.  IT WAS NEGOTIATING FOR THE PURCHASE OF THE
SHARES OF AN INVESTMENT BANKING HOUSE WHEN THAT HOUSE, THE BANK AND THE
TRUST COMPANY FAILED.  THAT WAS IN NOVEMBER, 1930 - A LITTLE MORE THAN
A YEAR AFTER BANCO BEGAN ITS FINANCIAL CAREER.  IN NOVEMBER, 1930 A
RECEIVER WAS APPOINTED FOR THE BANK AND ONE FOR BANCO.  IN FEBRUARY,
1931 THE COMPTROLLER OF THE CURRENCY MADE AN ASSESSMENT ON THE
SHAREHOLDERS OF THE BANK IN THE AMOUNT OF $4,000,000 PAYABLE ON OR
BEFORE APRIL 1, 1931.  AND IN MARCH, 1931 THE RECEIVER OF THE BANK
NOTIFIED THE STOCKHOLDERS OF BANCO THAT HE HAD DEMANDED PAYMENT OF THE
ASSESSMENT FROM THE RECEIVER OF BANCO AND THAT HE INTENDED TO PROCEED
AGAINST THEM FOR COLLECTION OF THE ASSESSMENT TO THE EXTENT THAT HE WAS
UNABLE TO COLLECT FROM BANCO.  IN OCTOBER, 1931 THE RECEIVER OF THE
BANK BROUGHT AN ACTION AGAINST BANCO AS HOLDER OF SUBSTANTIALLY ALL OF
THE BANK'S SHARES.  HE OBTAINED A JUDGMENT (KEYES V. AMERICAN LIFE INS.
CO., 1 F.SUPP.  512) WHICH WAS AFFIRMED ON APPEAL.  LAURENT V.
ANDERSON, 70 F.2D 819.  SOME $90,000 WAS PAID ON THAT JUDGMENT.  THE
RECEIVER OF THE BANK THEREUPON BROUGHT THIS SUIT AGAINST THOSE
STOCKHOLDERS OF BANCO WHO RESIDED IN THE WESTERN DISTRICT OF KENTUCKY
IN WHICH HE SEEKS TO RECOVER FROM EACH HIS PROPORTIONATE PART OF THE
BALANCE OF THE ASSESSMENT.  SIMILAR SUITS AGAINST OTHER STOCKHOLDERS
WERE BROUGHT IN FEDERAL DISTRICT COURTS IN OTHER STATES.  THE DISTRICT
COURT, AFTER A TRIAL, DISMISSED THE BILL.  32 F.SUPP.  328.  THE
CIRCUIT COURT OF APPEALS AFFIRMED THAT JUDGMENT.  127 F.2D 696.  THE
CASE IS HERE ON CERTIORARI. 

                                  I. 

WE ARE MET AT THE OUTSET WITH THE CONTENTION THAT THE DECISION IN
LAURENT V. ANDERSON, SUPRA, HOLDING BANCO LIABLE ON THE ASSESSMENT, IS
RES JUDICATA OF THE PRESENT CLAIM; AND THAT PETITIONER BY BRINGING THAT
SUIT MADE AN ELECTION WHICH BARS THE PRESENT ACTION.  WE DO NOT AGREE. 
EITHER THE RECORD OWNER OR THE ACTUAL OWNER OF SHARES OF A NATIONAL
BANK MAY BE LIABLE ON THE STATUTORY ASSESSMENT.  FN6  RICHMOND V.
IRONS, 121 U.S. 27, 58; KEYSER V. HITZ, 133 U.S. 138, 149; PAULY V.
STATE LOAN & TRUST CO., 165 U.S. 606; LANTRY V. WALLACE, 182 U.S. 536;
OHIO VALLEY NATIONAL BANK V. HULITT, 204 U.S. 162; EARLY V. RICHARDSON,
280 U.S. 496; FORREST V. JACK, 294 U.S. 158.  A RECEIVER MAY SUE BOTH -
PARTIAL SATISFACTION OF THE JUDGMENT AGAINST ONE BEING A PRO TANTO
DISCHARGE OF THE OTHER.  ERICSON V. SLOMER, 94 F.2D 437.  AND SEE
CONTINENTAL NATIONAL BANK & TRUST CO. V. O'NEIL, 82 F.2D 650.  THE
BASIS OF LIABILITY OF EACH IS DIFFERENT - APPARENT OR TITULAR OWNERSHIP
IN ONE CASE, ACTUAL OR BENEFICIAL OWNERSHIP IN THE OTHER.  HENCE THE
ISSUES INVOLVED IN EACH SUIT ARE NOT THE SAME.  FN7  SEE RECONSTRUCTION
FINANCE CORP. V. PELTS, 123 F.2D 503; RECONSTRUCTION FINANCE CORP. V.
BARRETT, 131 F.2D 745, 748.  IF THE RECEIVER WERE BARRED FROM
PROCEEDING AGAINST ONE BECAUSE HE HAD ALREADY PROCEEDED AGAINST THE
OTHER, CREDITORS OF BANKS WOULD BE DEPRIVED OF THE FULL BENEFITS OF
THESE STATUTES.  THE WISDOM OF THE RECEIVER'S FIRST SUIT RATHER THAN
THE FIXED STATUTORY LIABILITY WOULD BE THE MEASURE OF THEIR
PROTECTION.  THERE IS NO JUSTIFICATION FOR SUCH AN IMPAIRMENT OF THE
STATUTORY SCHEME.  THE RULES OF ELECTION APPLICABLE TO SUITS ON
CONTRACTS MADE BY AGENTS OF UNDISCLOSED PRINCIPALS (PITTSBURGH TERMINAL
COAL CORP. V. BENNETT, 73 F.2D 387, 389) HAVE BEEN PRESSED UPON US.
BUT THEY HAVE NO APPLICATION TO SUITS TO ENFORCE A LIABILITY WHICH HAS
THIS STATUTORY ORIGIN.  CF. CHRISTOPHER V. NORVELL, 201 U.S. 216, 225. 

      II. 

THE DISTRICT COURT FOUND, AND THE CIRCUIT COURT OF APPEALS AGREED,
THAT BANCO WAS ORGANIZED IN GOOD FAITH AND WAS NOT A SHAM; THAT IT WAS
NOT ORGANIZED FOR A FRAUDULENT PURPOSE OR TO CONCEAL ENTERPRISES
CONDUCTED FOR THE BENEFIT OF THE BANK; THAT IT WAS NOT A MERE HOLDING
COMPANY; THAT IT WAS NOT FORMED AS A MEANS FOR AVOIDING DOUBLE
LIABILITY ON THE STOCK OF THE BANK; AND THAT THE SOUNDNESS OF THE BANK
AND ITS ABILITY TO MEET THE OBLIGATIONS COULD NOT BE QUESTIONED UNTIL
AFTER THE FORMATION OF BANCO.  SOME OF THESE FINDINGS HAVE BEEN
CHALLENGED.  BUT WE DO NOT STOP TO EXAMINE THE EVIDENCE.  WE ACCEPT
THOSE FINDINGS, AS THEY WERE CONCURRED IN BY TWO COURTS AND NO CLEAR
ERROR IS SHOWN.  BREWER-ELLIOTT OIL CO. V. UNITED STATES, 260 U.S. 77,
86; ALABAMA POWER CO. V. ICKES, 302 U.S. 464, 477.  WE CONCLUDE,
HOWEVER, THAT THE COURTS BELOW ERRED IN DISMISSING THE BILL. 

IT IS CLEAR BY REASON OF EARLY V. RICHARDSON, SUPRA, THAT IF A
STOCKHOLDER OF THE BANK HAD TRANSFERRED HIS SHARES TO HIS MINOR
CHILDREN, HE WOULD NOT HAVE BEEN RELIEVED FROM LIABILITY FOR THIS
ASSESSMENT.  AND SEE SEABURY V. GREEN, 294 U.S. 165.  THAT FOLLOWS
BECAUSE OF THE POLICY UNDERLYING THESE STATUTES.  ONE WHO IS LEGALLY
IRRESPONSIBLE CANNOT BE ALLOWED TO SERVE AS AN INSULATOR FROM
LIABILITY, WHETHER THAT WAS THE PURPOSE OR MERELY THE EFFECT OF THE
ARRANGEMENT.  A FATHER WHO TRANSFERS HIS SHARES TO HIS MINOR CHILDREN
HAS NOT FOUND A SUBSTITUTE FOR HIS LIABILITY.  SEE WESTON'S CASE, 5 CH.
APP. 614.  IT DOES NOT MATTER THAT THE TRANSFER WAS IN GOOD FAITH,
WITHOUT PURPOSE OF EVASION AND AT A TIME WHEN THE BANK WAS SOLVENT. 
EARLY V. RICHARDSON, SUPRA.  THE VICE OF THE ARRANGEMENT IS FOUND IN
THE NATURE OF THE TRANSFEREE AND HIS RELATIONSHIP TO THE TRANSFEROR. 
CF. NICKALLS V. MERRY, 7 ENG. & IRISH APP. 530.  THE SAME RESULT WILL
AT TIMES OBTAIN WHERE THE TRANSFEREE IS FINANCIALLY IRRESPONSIBLE. 
THIS DOES NOT MEAN THAT EVERY STOCKHOLDER OF A NATIONAL BANK WHO SELLS
HIS SHARES REMAINS LIABLE BECAUSE HIS TRANSFEREE TURNS OUT TO BE
IRRESPONSIBLE OR IMPECUNIOUS.  IT IS CLEAR THAT HE DOES NOT.  EARLE V.
CARSON, 188 U.S. 42, 54-55.  BUT WHERE AFTER THE SALE HE RETAINS
THROUGH HIS TRANSFEREE AN INVESTMENT POSITION IN THE BANK, INCLUDING
CONTROL, HE CANNOT ESCAPE THE STATUTORY LIABILITY IF HIS TRANSFEREE
DOES NOT HAVE RESOURCES COMMENSURATE WITH THE RISKS OF THOSE HOLDINGS. 
IN SUCH A CASE HE REMAINS LIABLE AS A "STOCKHOLDER" OR "SHAREHOLDER"
WITHIN THE MEANING OF THESE STATUTES TO THE EXTENT OF HIS INTEREST IN
THE UNDERLYING SHARES OF THE BANK.  FOR HE RETAINS CONTROL AND THE
OTHER BENEFITS OF OWNERSHIP WITHOUT SUBSTITUTING IN HIS STEAD ANY ONE
WHO IS RESPONSIBLE FOR THE RISKS OF THE BANKING BUSINESS.  THE LAW HAS
BEEN EDGING TOWARDS THAT RESULT.  SEE HANSEN V. AGNEW, 195 WASH. 354,
80 P.2D 845; METROPOLITAN HOLDING CO. V. SNYDER, 79 F.2D 263; BARBOUR
V. THOMAS, 86 F.2D 510; NETTLES V. RHETT, 94 F.2D 42.  WE THINK THE
RESULT IS NECESSARY, LEST THE PROTECTION AFFORDED BY THESE DOUBLE
LIABILITY PROVISIONS BE LOST THROUGH TRANSFERS TO IMPECUNIOUS OR NOT
FULLY RESPONSIBLE HOLDING OR OPERATING COMPANIES WHOSE STOCK IS OWNED
BY THE TRANSFEROR.  WHETHER THE TRANSFER IS MADE IN AVOIDANCE OF THE
DOUBLE LIABILITY AS IN CORKER V. SOPER, 53 F.2D 190, OR FOR BUSINESS
REASONS WHICH MAY BE CONSIDERED WHOLLY LEGITIMATE, THE RESULT IS THE
SAME.  DEPOSITORS ARE DEPRIVED OF THE BENEFIT OF DOUBLE LIABILITY IN
EITHER EVENT. 

THUS IT IS NO BAR TO THE PRESENT SUIT THAT BANCO WAS ORGANIZED IN
GOOD FAITH, THAT THERE WAS NO FRAUDULENT INTENT, THAT BANCO WAS NOT A
SHAM, THAT IT WAS NOT A MERE HOLDING COMPANY, OR THAT THE SHAREHOLDERS
OF THE BANK HAD NO PURPOSE OF AVOIDING DOUBLE LIABILITY.  WE ARE NOT
CONCERNED WITH ANY QUESTION OF GOOD INTENTION.  THE QUESTION IS WHETHER
THE PARTIES DID WHAT THEY INTENDED TO DO AND WHETHER WHAT THEY DID
CONTRAVENED THE POLICY OF THE LAW.  BY THAT TEST IT IS CLEAR TO US THAT
THE OLD STOCKHOLDERS OF THE BANK ARE LIABLE.  FOR THEY RETAINED THROUGH
BANCO THEIR FORMER INVESTMENT POSITIONS IN THE BANK, INCLUDING CONTROL,
AND DID NOT CONSTITUTE BANCO AS AN ADEQUATE FINANCIAL SUBSTITUTE IN
THEIR STEAD.  BANCO'S ASSET POSITION IMMEDIATELY AFTER ITS SALES OF
STOCK CANNOT BE TAKEN AS THE MEASURE OF ITS FINANCIAL RESPONSIBILITY. 
ITS LIQUID CONDITION WAS FLEETING; THE RAISING OF THE CASH WAS BUT AN
INTERIM STEP IN THE PLANNED EVOLUTION OF BANCO AS A BANK-STOCK HOLDING
COMPANY.  IT IS THE CONDITION OF BANCO AT THE END OF THE PROMOTION
WHICH IS SIGNIFICANT.  BANCO EMERGED AS A BANK-STOCK HOLDING COMPANY. 
TECHNICALLY IT WAS NOT MERELY SUCH A HOLDING COMPANY AS IT HAD OTHER
INTERESTS AND INVESTMENTS.  BUT ITS MAIN ASSETS WERE STOCKS IN BANKS,
STOCKS WHICH CARRIED DOUBLE LIABILITY.  ITS OTHER ASSETS - APART FROM
THE $25,000 OF LIFE INSURANCE STOCK - WERE ALWAYS HIGHLY SUSPECT AND
DUBIOUS.  IN SUBSTANCE BANCO AS A GOING CONCERN HAD NO FREE ASSETS
WHICH COULD POSSIBLY BE SAID TO CONSTITUTE AN ADEQUATE RESERVE AGAINST
DOUBLE LIABILITY ON THE BANK STOCKS WHICH IT HELD.  IT WAS IN NO TRUE
SENSE COMPARABLE TO AN INVESTMENT TRUST OR HOLDING COMPANY WHICH HOLDS
BANK STOCK IN A DIVERSIFIED PORTFOLIO.  IF THE SMALL AMOUNT OF LIFE
INSURANCE STOCK BE LEFT OUT OF ACCOUNT, THE SITUATION IS IN POINT OF
FACT NOT MATERIALLY DIFFERENT FROM THE CASE WHERE THE ONLY ASSETS HELD
WERE BANK STOCKS CARRYING DOUBLE LIABILITY.  SUCH AN ARRANGEMENT, IF
SUCCESSFUL, WOULD ALLOW STOCKHOLDERS OF BANKS TO RETAIN ALL OF THE
BENEFITS OF OWNERSHIP WITHOUT THE DOUBLE LIABILITY WHICH CONGRESS HAD
PRESCRIBED.  THE ONLY SUBSTITUTE WHICH DEPOSITORS OF ONE BANK WOULD
HAVE FOR THAT DOUBLE LIABILITY WOULD BE THE STOCK IN ANOTHER BANK
CARRYING A LIKE LIABILITY.  THE SENSITIVENESS OF ONE BANK IN THE GROUP
TO THE DISASTER OF ANOTHER WOULD LIKELY MEAN THAT AT THE ONLY TIME WHEN
DOUBLE LIABILITY WAS NEEDED THE FINANCIAL RESPONSIBILITY OF THE HOLDING
COMPANY AS STOCKHOLDER WOULD BE LACKING.  HOWEVER THAT MAY BE, THE
DEVICE USED HERE CAN BE SO READILY UTILIZED IN CIRCUMVENTION OF THE
STATUTORY POLICY OF DOUBLE LIABILITY THAT THE STOCKHOLDERS OF THE
HOLDING COMPANY RATHER THAN THE DEPOSITORS OF THE SUBSIDIARY BANKS MUST
TAKE THE RISK OF THE FINANCIAL SUCCESS OF THE UNDERTAKING.  FN8    THAT
IS A BASIS OF LIABILITY SUFFICIENTLY BROAD TO INCLUDE ALSO THE
STOCKHOLDERS OF BANCO WHO HAD NOT BEEN STOCKHOLDERS OF THE BANK.  AS WE
HAVE NOTED, MANY OF THEM ACQUIRED THEIR SHARES EITHER FOR CASH OR FOR
SHARES IN OTHER BANKS.  IT MUST BE ASSUMED THAT IN MAKING THOSE
PURCHASES OR EFFECTING THOSE EXCHANGES THEY KNEW WHAT KIND OF AN
ENTERPRISE BANCO WAS.  SEE NETTLES V. RHETT, SUPRA, PP. 48-49; ANDERSON
V. ATKINSON, 22 F.SUPP.  853, 863.  CIRCULARS OF THE CHICAGO STOCK
EXCHANGE, ON WHICH BANCO'S SHARES WERE LISTED, GAVE A PLAIN INDICATION
OF THE NATURE OF THE ENTERPRISE.  FN9  SO DID CIRCULARS OF DEALERS. 
FN10  AND THERE WOULD NOT SEEM TO BE ANY DOUBT THAT THE OLD
STOCKHOLDERS OF THE BANK WERE GIVEN AT THE TIME OF THE EXCHANGE A FAIR
PICTURE OF THE NATURE OF THE ENTERPRISE WHICH BANCO WAS ABOUT TO
LAUNCH.  SOME SHAREHOLDERS OF BANCO CLAIM THE RIGHT TO RESCIND THEIR
PURCHASES OF ITS SHARES ON THE GROUND OF MISREPRESENTATIONS IN THE
SALE.  BUT WHETHER OR NOT SUCH RELIEF MIGHT BE GRANTED IN SOME
INSTANCES, IT SEEMS CLEAR THAT BANCO'S STOCKHOLDERS ARE BOUND BY THE
DECISIONS OF THE DIRECTORS WHICH DETERMINED, WITHIN THE SCOPE OF THE
CORPORATE CHARTER, THE KIND AND QUALITY OF THE CORPORATE UNDERTAKING. 
AS WAS STATED IN CHRISTOPHER V. BRUSSELBACK, 302 U.S. 500, 503, "A
STOCKHOLDER IS SO FAR AN INTEGRAL PART OF THE CORPORATION OF WHICH HE
IS A MEMBER, THAT HE MAY BE BOUND AND HIS RIGHTS FORECLOSED BY
AUTHORIZED CORPORATE ACTION TAKEN WITHOUT HIS KNOWLEDGE OR
PARTICIPATION.  SANGER V. UPTON, 91 U.S. 56, 58."  AND SEE PINK V.
A.A.A. HIGHWAY EXPRESS, 314 U.S. 201, 207, AND CASES CITED.  THE
LEGALITY OF THE INVESTMENTS OF BANCO'S FUNDS FOR THE MOST PART IS NOT
CHALLENGED.  IT MUST BE ASSUMED THAT THEY WERE NOT ULTRA VIRES.  THEY
FALL INDEED INTO THE CATEGORY OF ACTS OF DIRECTORS WHICH NORMALLY
CANNOT BE CHALLENGED BY STOCKHOLDERS.  COOK, CORPORATIONS (8TH ED.) 
SEC.  684.  THESE PRINCIPLES, BASIC IN GENERAL CORPORATION LAW, ARE
RELEVANT HERE AS INDICATING THAT THE STOCKHOLDERS OF BANCO CANNOT
ESCAPE RESPONSIBILITY FOR THE INADEQUACY OF BANCO'S RESOURCES MERELY
BECAUSE THE CHOICE OF ITS INVESTMENTS WAS MADE BY THE OFFICERS AND
DIRECTORS - ACTS IN WHICH THE STOCKHOLDERS DID NOT PARTICIPATE AND OF
WHICH PERHAPS THEY HAD NO ACTUAL KNOWLEDGE.  THE FACT THAT THEY MAY
HAVE CLAIMS AGAINST AN OFFICER OR DIRECTOR FOR MISMANAGEMENT DOES NOT
RELIEVE THEM FROM LIABILITY TO THE DEPOSITORS OF THE SUBSIDIARY BANKS. 
CF. SCOTT V. DEWEESE, 181 U.S. 202, 213; LANTRY V. WALLACE, 182 U.S.
536, 548-554. 

NORMALLY THE CORPORATION IS AN INSULATOR FROM LIABILITY ON CLAIMS OF
CREDITORS.  THE FACT THAT INCORPORATION WAS DESIRED IN ORDER TO OBTAIN
LIMITED LIABILITY DOES NOT DEFEAT THAT PURPOSE.  ELENKRIEG V.
SIEBRECHT, 238 N.Y. 254, 144 N.E. 519.  SEE 7 HARV. BUS.  REV.  496.
LIMITED LIABILITY IS THE RULE, NOT THE EXCEPTION; AND ON THAT
ASSUMPTION LARGE UNDERTAKINGS ARE RESTED, VAST ENTERPRISES ARE
LAUNCHED, AND HUGE SUMS OF CAPITAL ATTRACTED.  BUT THERE ARE OCCASIONS
WHEN THE LIMITED LIABILITY SOUGHT TO BE OBTAINED THROUGH THE
CORPORATION WILL BE QUALIFIED OR DENIED.  MR. JUSTICE CARDOZO STATED
THAT A SURRENDER OF THAT PRINCIPLE OF LIMITED LIABILITY WOULD BE MADE
"WHEN THE SACRIFICE IS ESSENTIAL TO THE END THAT SOME ACCEPTED PUBLIC
POLICY MAY BE DEFENDED OR UPHELD."  BERKEY V. THIRD AVE. RY. CO., 244
N.Y. 84, 95, 155 N.E. 58, 61; UNITED STATES V. MILWAUKEE REFRIGERATOR
TRANSIT CO., 142 F. 247.  SEE POWELL, PARENT & SUBSIDIARY CORPORATIONS
(1931) PP. 77-81.  THE CASES OF FRAUD MAKE UP PART OF THAT EXCEPTION. 
LINN & LANE TIMBER CO. V. UNITED STATES, 236 U.S. 574; RICE V. SANGER
BROTHERS, 27 ARIZ. 15, 229 P. 397; DONOVAN V. PURTELL, 216 ILL. 629,
640, 75 N.E. 334; GEORGE V. ROLLINS, 176 MICH. 144, 142 N.W. 337;
HIGGINS V. CALIFORNIA PETROLEUM CO., 147 CAL. 363, 81 P. 1070.  BUT
THEY DO NOT EXHAUST IT.  AN OBVIOUS INADEQUACY OF CAPITAL, MEASURED BY
THE NATURE AND MAGNITUDE OF THE CORPORATE UNDERTAKING, HAS FREQUENTLY
BEEN AN IMPORTANT FACTOR IN CASES DENYING STOCKHOLDERS THEIR DEFENSE OF
LIMITED LIABILITY.  LUCKENBACH S.S. CO. V. GRACE & CO., 267 F. 676,
681; ORIENTAL INVESTMENT CO. V. BARCLAY, 25 TEX. CIV. APP. 543, 559, 64
S.W. 80, 88.  AND SEE WEISSER V. MURSAM SHOE CORP., 127 F.2D 344.  CF.
PEPPER V. LITTON, 308 U.S. 295, 310; ALBERT RICHARDS CO. V. MAYFAIR,
INC., 287 MASS. 280, 288, 191 N.E. 430; ERICKSON V. MINNESOTA & ONTARIO
POWER CO., 134 MINN. 209, 158 N.W. 979.  THAT RULE HAS BEEN INVOKED
EVEN IN ABSENCE OF A LEGISLATIVE POLICY WHICH UNDERCAPITALIZATION WOULD
DEFEAT.  IT BECOMES MORE IMPORTANT IN A SITUATION SUCH AS THE PRESENT
ONE WHERE THE STATUTORY POLICY OF DOUBLE LIABILITY WILL BE DEFEATED IF
IMPECUNIOUS BANK-STOCK HOLDING COMPANIES ARE ALLOWED TO BE INTERPOSED
AS NON-CONDUCTORS OF LIABILITY.  IT HAS OFTEN BEEN HELD THAT THE
INTERPOSITION OF A CORPORATION WILL NOT BE ALLOWED TO DEFEAT A
LEGISLATIVE POLICY, WHETHER THAT WAS THE AIM OR ONLY THE RESULT OF THE
ARRANGEMENT.  UNITED STATES V. LEHIGH VALLEY R. CO., 220 U.S. 257;
CHICAGO, M. & ST. P. RY. CO. V. MINNEAPOLIS CIVIC & COMMERCE ASSN., 247
U.S. 490; UNITED STATES V. READING CO., 253 U.S. 26.  THE COURT STATED
IN CHICAGO, M. & ST. P. RY. CO. V. MINNEAPOLIS CIVIC & COMMERCE ASSN.,
SUPRA, P. 501, THAT "THE COURTS WILL NOT PERMIT THEMSELVES TO BE
BLINDED OR DECEIVED BY MERE FORMS OR LAW" BUT WILL DEAL "WITH THE
SUBSTANCE OF THE TRANSACTION INVOLVED AS IF THE CORPORATE AGENCY DID
NOT EXIST AND AS THE JUSTICE OF THE CASE MAY REQUIRE."  WE ARE DEALING
HERE WITH A PRINCIPLE OF LIABILITY WHICH IS CONCERNED WITH REALITIES
NOT FORMS.  AS WE HAVE SAID, THE NET PRACTICAL EFFECT OF THE
ORGANIZATION AND MANAGEMENT OF BANCO WAS THE SAME AS THOUGH THE SHARES
OF THE BANK WERE HELD IN TRUST FOR BENEFICIARIES WHO WERE IN POINT OF
SUBSTANCE ITS ONLY OWNERS.  THOSE WHO ACQUIRED SHARES OF BANCO DID NOT
ENTER UPON AN ENTERPRISE DISTINCT FROM THE BANKING BUSINESS.  THEIR
INVESTMENT IN BANCO WAS IN SUBSTANCE LITTLE MORE THAN AN INVESTMENT IN
THE SHARES OF THE BANK.  THEY WERE AS MUCH IN THE BANKING BUSINESS AS
ANY STOCKHOLDER OF THE BANK HAD EVER BEEN.  AND THEY CONTINUED IN THAT
BUSINESS THROUGH BANCO WHICH AS A GOING CONCERN LACKED ASSETS ADEQUATE
AS A RESERVE AGAINST THE CONTINGENT STATUTORY LIABILITY.  ITS
STOCKHOLDERS WERE IN POINT OF SUBSTANCE THE ONLY SOURCE OF FUNDS
AVAILABLE TO SATISFY THE ASSESSMENTS.  FOR THESE REASONS THE OLD GROUP
OF STOCKHOLDERS MUST BE HELD TO HAVE RETAINED AND THE NEW GROUP OF
STOCKHOLDERS MUST BE HELD TO HAVE ACQUIRED LIABILITY AS STOCKHOLDERS OF
THE BANK. 

TO ALLOW THIS HOLDING COMPANY DEVICE TO SUCCEED WOULD BE TO PUT THE
POLICY OF DOUBLE LIABILITY AT THE MERCY OF CORPORATION FINANCE.  THE
FACT THAT CONGRESS DID NOT OUTLAW HOLDING COMPANIES FROM THE NATIONAL
BANK FIELD NOR UNDERTAKE TO REGULATE THEM DURING THE PERIOD OF BANCO'S
EXISTENCE CAN HARDLY IMPLY THAT CONGRESS SANCTIONED THEIR USE TO DEFEAT
THE POLICY OF DOUBLE LIABILITY.  IT IS TRUE THAT CONGRESS LATER
ADDRESSED ITSELF TO THIS PROBLEM AND IN THE BANKING ACT OF 1933(48
STAT. 186, 12 U.S.C. SEC. 61) ESTABLISHED CERTAIN CONTROLS OVER THEM. 
IN GENERAL, THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM WAS
AUTHORIZED TO ISSUE A VOTING PERMIT ENTITLING A HOLDING COMPANY TO VOTE
THE STOCK CONTROLLED BY IT ON CERTAIN CONDITIONS.  APART FROM
REQUIREMENTS FOR EXAMINATION AND NON-AFFILIATION WITH SECURITIES
COMPANIES, SEC. 19(A) AND (E), CERTAIN STANDARDS FOR FINANCIAL
RESPONSIBILITY WERE ESTABLISHED AND HOLDING COMPANIES SEEKING SUCH
PERMITS WERE GRANTED A SPECIFIED PERIOD OF TIME WITHIN WHICH TO MEET
THOSE STANDARDS.  WHERE THE STOCKHOLDERS OF THE HOLDING COMPANY WERE
LIABLE FOR THE STATUTORY LIABILITY, A SPECIFIED RESERVE OF READILY
MARKETABLE ASSETS WAS REQUIRED.  SEC. 19(C).  OTHERWISE, THE HOLDING
COMPANY WAS REQUIRED TO MAINTAIN FREE OF ANY LIEN "READILY MARKETABLE
ASSETS OTHER THAN BANK STOCK" IN AN AMOUNT EQUAL TO A LARGER PERCENTAGE
OF THE PAR VALUE OF THE BANK STOCKS OWNED.  SEC. 19(B).  IT IS APPARENT
THAT CONGRESS IN THAT ACT PROTECTED ITS POLICY OF DOUBLE LIABILITY BY
PRESCRIBING ONE STANDARD OF FINANCIAL RESPONSIBILITY FOR HOLDING
COMPANIES WHOSE SHARES WERE ASSESSABLE BY THEIR TERMS AND ANOTHER FOR
THOSE WHOSE SHARES WERE NON-ASSESSABLE.  FN11  WE NEED NOT STOP TO
CONSIDER WHAT WOULD BE THE MEASURE OF LIABILITY IN CASES ARISING UNDER
THAT ACT WHERE THERE HAD BEEN NO COMPLIANCE WITH IT.  BUT IF THAT ACT
HAD BEEN APPLICABLE TO BANCO AND BANCO HAD COMPLIED WITH IT, BANCO
WOULD THEN HAVE MET THE STANDARDS OF FINANCIAL RESPONSIBILITY WHICH
CONGRESS HAD PRESCRIBED AS ADEQUATE FOR THE DEPOSITORS.  YET THE FACT
THAT CONGRESS LATER WROTE SPECIFIC STANDARDS INTO THE LAW MEANS NO MORE
THAN A RECOGNITION ON ITS PART OF AN EVIL AND A FASHIONING BY IT OF A
SPECIFIC REMEDY.  IT CAN HARDLY MEAN THAT CONGRESS BY ITS EARLIER
SILENCE HAD SANCTIONED THE USE OF THE HOLDING COMPANY TO DEFEAT THE
PROTECTION WHICH IT HAD PROVIDED FOR DEPOSITORS OF NATIONAL BANKS.  THE
LEGISLATIVE POLICY WHICH CONGRESS HAD LONG ANNOUNCED WAS THE POLICY OF
DOUBLE LIABILITY.  IT IS THAT POLICY WITH WHICH WE ARE HERE CONCERNED. 
IT IS THAT POLICY, DECLARED BY CONGRESS, WHICH THE JUDICIAL POWER MAY
APPROPRIATELY PROTECT IN THE WAY WE HAVE INDICATED, IN ABSENCE OF A
CHOICE BY CONGRESS OF ANOTHER METHOD. 

IT IS OF COURSE TRUE THAT DELAWARE CREATED THIS CORPORATION.  BUT THE
QUESTION OF LIABILITY FOR THESE ASSESSMENTS IS A FEDERAL QUESTION.  THE
POLICY UNDERLYING A FEDERAL STATUTE MAY NOT BE DEFEATED BY SUCH AN
ASSERTION OF STATE POWER.  NORTHERN SECURITIES CO. V. UNITED STATES,
193 U.S. 197, 349; SEABURY V. GREEN, SUPRA.  THE SPECTRE OF UNLIMITED
LIABILITY FOR STOCKHOLDERS HAS BEEN RAISED.  BUT THERE IS NO CAUSE FOR
ALARM.  BARRING CONFLICTING FEDERAL INCORPORATION STATUTES, DELAWARE
MAY CHOOSE SUCH RULES OF LIMITATION ON THE LIABILITY OF STOCKHOLDERS OF
HER CORPORATIONS AS SHE DESIRES.  AND THOSE LAWS ARE ENFORCEABLE IN
FEDERAL COURTS UNDER THE RULE OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 
BUT NO STATE MAY ENDOW ITS CORPORATE CREATURES WITH THE POWER TO PLACE
THEMSELVES ABOVE THE CONGRESS OF THE UNITED STATES AND DEFEAT THE
FEDERAL POLICY CONCERNING NATIONAL BANKS WHICH CONGRESS HAS ANNOUNCED. 
WE ARE CONCERNED HERE WITH THAT PROBLEM AND WITH THAT PROBLEM ALONE. 

THE RESULT WHICH WE REACH MAY BE HARSH TO SOME OF THE STOCKHOLDERS OF
BANCO.  BUT RULES OF LIABILITY ARE USUALLY HARSH ESPECIALLY WHERE THEY
ARE NOT BOTTOMED ON FAULT.  THUS PRIVATE INVESTORS HAVE FREQUENTLY
FOUND CONTRARY TO THEIR EXPECTATION OR UNDERSTANDING THAT THEY
PURCHASED WITH THEIR INVESTMENT AN UNLIMITED LIABILITY FOR THE DEBTS OF
THE ENTERPRISE.  THOMPSON V. SCHMITT, 115 TEX. 53, 274 S.W. 554; FROST
V. THOMPSON, 219 MASS. 360, 106 N.E. 1009; WEBER ENGINE CO. V. ALTER,
120 KAN. 557, 245 P. 143; RAND V. MORSE, 289 F. 339.  IT HAS NEVER BEEN
SUPPOSED, HOWEVER, THAT THE INNOCENCE AND GOOD FAITH OF INVESTORS WERE
BARRIERS TO SUCH SUITS.  HORGAN V. MORGAN, 233 MASS. 381, 385, 124 N.E.
32.  NOR CAN WE ACCEDE TO THE SUGGESTION THAT THOSE DEFENSES SHOULD BE
AVAILABLE HERE.  THE POLICY UNDERLYING DOUBLE LIABILITY IS AN EXACTING
ONE.  ITS DEFEAT CANNOT BE ENCOURAGED THROUGH THE UTILIZATION OF
FINANCIAL DEVICES WHICH PUT A PREMIUM ON IGNORANCE. 

THE SUGGESTION THAT THERE SHOULD BE NO LIABILITY WITHOUT FAULT UNLESS
A STATUTE ESTABLISHES IT DENIES THE WHOLE HISTORY OF THE JUDICIAL
PROCESS IN SHAPING THE RULES OF VICARIOUS LIABILITY.  THE LIABILITY OF
A MASTER FOR THE TORTS OF HIS SERVANT CERTAINLY STARTED FROM NO SUCH
FOUNDATION.  AND THE RULES WHICH MADE THOSE WHO PURCHASED SHARES IN
MASSACHUSETTS BUSINESS TRUSTS RESPONSIBLE FOR THE DEBTS OF THE
ENTERPRISE WERE EVOLVED, WITH FEW EXCEPTIONS, ON A COMMON LAW, NOT A
STATUTORY, BASIS.  MAGRUDER, THE POSITION OF SHAREHOLDERS IN BUSINESS
TRUSTS, 23 COL. L. REV. 423.  IN THE FIELD IN WHICH WE ARE PRESENTLY
CONCERNED, JUDICIAL POWER HARDLY OVERSTEPS THE BOUNDS WHEN IT REFUSES
TO LEND ITS AID TO A PROMOTIONAL PROJECT WHICH WOULD CIRCUMVENT OR
UNDERMINE A LEGISLATIVE POLICY.  TO DENY IT THAT FUNCTION WOULD BE TO
MAKE IT IMPOTENT IN SITUATIONS WHERE HISTORICALLY IT HAS MADE SOME OF
ITS MOST NOTABLE CONTRIBUTIONS.  IF THE JUDICIAL POWER IS HELPLESS TO
PROTECT A LEGISLATIVE PROGRAM FROM SCHEMES FOR EASY AVOIDANCE, THEN
INDEED IT HAS BECOME A HANDY IMPLEMENT OF HIGH FINANCE.  JUDICIAL
INTERFERENCE TO CRIPPLE OR DEFEAT A LEGISLATIVE POLICY IS ONE THING;
JUDICIAL INTERFERENCE WITH THE PLANS OF THOSE WHOSE CORPORATE OR OTHER
DEVICES WOULD CIRCUMVENT THAT POLICY IS QUITE ANOTHER.  ONCE THE
PURPOSE OR EFFECT OF THE SCHEME IS CLEAR, ONCE THE LEGISLATIVE POLICY
IS PLAIN, WE WOULD INDEED FORSAKE A GREAT TRADITION TO SAY WE WERE
HELPLESS TO FASHION THE INSTRUMENTS FOR APPROPRIATE RELIEF. 

IN SUMMARY, WE SEE NO DIFFERENCE BETWEEN THE VARIOUS CLASSES OF
STOCKHOLDERS OF BANCO WHICH WOULD SUPPORT A DIFFERENCE IN THEIR
LIABILITY.  THOSE WHO PURCHASED STOCK OF BANCO FOR CASH WERE AS MUCH
PARTICIPANTS IN THE BANKING BUSINESS AS THOSE WHO ACQUIRED THEIR STOCK
IN EXCHANGE FOR SHARES OF THE BANK.  TOGETHER THEY SHARED THE BENEFITS
OF OWNERSHIP OF THE SUBSIDIARY BANKS, INCLUDING CONTROL.  CERTAINLY A
SALE OF SHARES OF BANCO BY THE OLD STOCKHOLDERS OF THE BANK DID NOT
GIVE THOSE SHARES AN IMMUNITY BATH.  TO DRAW DISTINCTIONS BETWEEN THE
CLASSES OF STOCKHOLDERS OF BANCO WOULD BE TO MAKE THE PROTECTION
AFFORDED BY THESE STATUTES TURN ON ACCIDENTS OF ACQUISITION QUITE
IRRELEVANT TO THE CONCEPT OF "STOCKHOLDERS" OR "SHAREHOLDERS" ON WHOM
CONGRESS PLACED THIS LIABILITY.  ONE SIMPLE ILLUSTRATION WILL MAKE THAT
PLAIN.  A PURCHASES SHARES OF AN UNDERLYING BANK FOR $10,000 IN CASH
AND EXCHANGES THOSE SHARES FOR SHARES OF BANCO.  B HANDS OVER TO BANCO
$10,000, BANCO PURCHASES THE SHARES OF THE UNDERLYING BANK, AND THEN
ISSUES ITS SHARES TO B.  FROM THE PRACTICAL POINT OF VIEW A AND B ARE
INVESTORS OF THE SAME CLASS.  TO SAY THAT A IS LIABLE AND B NOT LIABLE
WHEN BOTH START WITH CASH AND END WITH IDENTICAL INVESTMENTS IS TO MAKE
THE DIFFERENCE BETWEEN LIABILITY AND NO LIABILITY TURN ON DISTINCTIONS
WHICH HAVE NO APPARENT RELEVANCY TO THE LEGISLATIVE POLICY WHICH THE
RULE OF DOUBLE LIABILITY WAS DESIGNED TO PROTECT.  AND TO SAY THAT
COURTS MAY HOLD A LIABLE BUT NOT B IS TO MAKE THE OCCASIONS FOR THE
ASSERTION OF JUDICIAL POWER TURN ON WHIMSICAL CIRCUMSTANCES.    THE
FINAL SUGGESTION IS THAT THE OLD STOCKHOLDERS OF THE BANK REMAIN LIABLE
FOR THE FULL ASSESSMENT ON THE SHARES OF THE BANK WHICH THEY EXCHANGED
FOR SHARES OF BANCO.  BUT THAT OVERLOOKS THE FACT THAT THEIR INTEREST
IN THOSE UNDERLYING SHARES WAS DILUTED BY THE ISSUANCE OF BANCO'S
SHARES TO OTHERS.  FN12  DOUBLE LIABILITY IS AN INCIDENCE OF
OWNERSHIP.  IT HAS LONG BEEN HELD THAT A STOCKHOLDER WHO IN GOOD FAITH
PARTS WITH ALL HIS INTEREST IN THE SHARES RIDS HIMSELF OF THAT DOUBLE
LIABILITY, EVEN THOUGH HIS TRANSFEREE IS NOT RESPONSIBLE.  EARLE V.
CARSON, SUPRA.  WE COULD HARDLY ADHERE TO THAT PRINCIPLE AND STILL HOLD
THE OLD STOCKHOLDERS OF THE BANK LIABLE FOR THE FULL ASSESSMENT ON THE
SHARES WHICH THEY EXCHANGED FOR SHARES OF BANCO.  THE OTHER
STOCKHOLDERS OF BANCO ACQUIRED THROUGH THEIR INVESTMENT IN IT AN
INTEREST IN THE SHARES OF THE BANK.  TO THE EXTENT OF THAT INTEREST THE
BENEFICIAL OWNERSHIP OF THE OLD STOCKHOLDERS OF THE BANK IN ITS SHARES
WAS AS DEFINITELY REDUCED AS IF THEY HAD MADE A TRANSFER OF THAT PART
OF THEIR HOLDINGS. 

CERTAIN STOCKHOLDERS OF BANCO CLAIM THAT THEY ARE ENTITLED TO RESCIND
THEIR PURCHASES OF BANCO'S SHARES BECAUSE OF MISREPRESENTATIONS MADE TO
THEM WHEN THEY ACQUIRED THE SHARES.  WE DO NOT REACH THOSE QUESTIONS. 
NOR DO WE STOP TO DETERMINE WHETHER SUCH A DEFENSE WOULD AVOID
LIABILITY ON THE ASSESSMENT (CF. OPPENHEIMER V. HARRIMAN NATIONAL BANK
& TRUST CO., 301 U.S. 206) AND, UNLIKE THE CASE WHERE SOME SHAREHOLDERS
ARE INSOLVENT (UNITED STATES V. KNOX, 102 U.S. 422, 425), INCREASE THE
PRO RATA LIABILITY OF THE OTHER SHAREHOLDERS OF BANCO.  IT IS
SUFFICIENT AT THIS TIME TO STATE THAT THE LIABILITY OF THE SHAREHOLDERS
OF BANCO WOULD BE MEASURED BY THE NUMBER OF SHARES OF STOCK OF THE
BANK, WHETHER SEVERAL OR ONLY FRACTIONAL, REPRESENTED BY EACH SHARE OF
STOCK OF BANCO; AND THAT THE ASSESSMENT LIABILITY OF EACH SHARE OF
STOCK OF BANCO WOULD BE A LIKE PROPORTION OF THE ASSESSMENT LIABILITY
OF THE SHARES OF THE BANK REPRESENTED BY THE FORMER. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  REVERSED. 

FN1  FURTHER DETAILS CONCERNING THE FINANCIAL TRANSACTIONS INDIRECTLY
INVOLVED IN THIS LITIGATION MAY BE FOUND IN ATHERTON V. ANDERSON, 86
F.2D 518, 99 F.2D 883; BANCOKENTUCKY'S RECEIVER V. LOUISVILLE TRUST
CO.'S RECEIVER, 263 KY. 155, 92 S.W.2D 19. 

FN2  THE SHARES OF THE BANK AND THE TRUST COMPANY HAD BEEN EARLIER
TRANSFERRED TO TRUSTEES WHO ISSUED TRUSTEES' PARTICIPATION
CERTIFICATES.  IT WAS THESE CERTIFICATES WHICH BANCO RECEIVED FROM THE
SHAREHOLDERS OF THE TWO BANKS IN EXCHANGE FOR ITS SHARES.  THE COMMAND
WHICH BANCO HAD OVER THE UNDERLYING SHARES IS DESCRIBED IN LAURENT V.
ANDERSON, 70 F.2D 819. 

FN3  SEE KY. REV. STAT. 1942, SEC. 287.360; OHIO CODE ANN. 1940, SEC.
710-75.  AT OR ABOUT THE TIME OF BANCO'S FAILURE THE SHARES IN THE
OTHER BANKS WERE SOLD OR DISPOSED OF AT RATHER NOMINAL PRICES.  IT
APPEARS THAT THE CLOSING OF THE BANK WAS FOLLOWED BY HEAVY RUNS ON
THESE OTHER BANKS; AND THE LOCAL INTERESTS IN MOST OF THE CITIES WHERE
THE BANKS WERE LOCATED WERE WILLING TO SUPPORT THE BANKS TO KEEP THEM
OPEN IF BANCO WOULD SURRENDER CONTROL.  BANCO, IT SEEMS, WAS ALSO
ANXIOUS TO AVOID DOUBLE LIABILITY ON THOSE SHARES. 

FN4  THE PRESIDENT OF BANCO WAS ALSO PRESIDENT OF THE BANK.  THIS
NOTE WAS ACQUIRED IN NOVEMBER, 1929, FROM WAKEFIELD & CO. IT WAS
SECURED BY 60,000 SHARES OF BANCO STOCK AND 22,500 SHARES OF STOCK OF
STANDARD OIL OF KENTUCKY.  NOTHING WAS EVER PAID ON THE NOTE.  NOTHING
WAS REALIZED ON THE BANCO STOCK.  SOME $440,000 WAS REALIZED ON THE
STANDARD OIL STOCK.  IN DECEMBER 1930 THE PRESIDENT OF BANCO AND MAKER
OF THE NOTE FILED A VOLUNTARY PETITION IN BANKRUPTCY.  HE WAS
DISCHARGED.  WAKEFIELD & CO. MADE AN ASSIGNMENT FOR THE BENEFIT OF
CREDITORS IN 1931 AND APPARENTLY NO DIVIDENDS HAVE YET BEEN PAID ITS
CREDITORS. 

FN5  THESE WERE A MURRAY RUBBER NOTE IN THE AMOUNT OF $580,000 AND A
NOTE OF LEWIS C. HUMPHREY FOR $20,000 - OF WHICH THE BANK EXAMINER HAD
BEEN QUITE CRITICAL FOR SOME TIME. 

FN6  PROVISIONS FOR THE TERMINATION OF DOUBLE LIABILITY ON SHARES OF
NATIONAL BANKS ARE CONTAINED IN THE ACT OF JUNE 16, 1933, 48 STAT. 189,
AND THE ACT OF AUGUST 23, 1935, 49 STAT. 708, 12 U.S.C. SEC. 64A. 

FN7  IT IS TRUE THAT THE COURT IN LAURENT V. ANDERSON, SUPRA, STATED
THAT BANCO WAS "IN EVERY SENSE THE TRUE AND BENEFICIAL OWNER" OF THE
SHARES OF THE BANK.  70 F.2D P. 824.  BUT IT IS APPARENT FROM THE
OPINION THAT THE COURT WAS ANSWERING THE CONTENTION THAT THE TRUSTEES
OF THE PARTICIPATION CERTIFICATES WERE RESPONSIBLE FOR THE ASSESSMENT. 
BANCO'S DEFENSE WAS BASED ON SEC. 63 OF THE NATIONAL BANK ACT.  IT
ARGUED THAT UNDER THAT SECTION ONLY FUNDS IN THE HANDS OF THE TRUSTEES
WERE LIABLE THAT ARGUMENT WAS REJECTED BY THE COURT. 

FN8  THE HISTORY OF BANK-STOCK HOLDING COMPANIES SHOWS THAT THEIR
ORGANIZERS WERE ACUTELY AWARE OF THIS PROBLEM AND AT TIMES TOOK STEPS
TO PROTECT THE DEPOSITORS OF THE SUBSIDIARY BANKS ON POSSIBLE
ASSESSMENTS ON THE BANK STOCKS.  ONE HOLDING COMPANY IS SAID TO HAVE
KEPT "AT ALL TIMES AN AMOUNT IN CASH OR ITS EQUIVALENT EQUAL TO OUR
AGGREGATE STOCKHOLDERS' LIABILITY ON THE BANK STOCKS OWNED BY US." 
BRANCH, CHAIN, AND GROUP BANKING, HEARINGS UNDER H. RES. 141, 71ST
CONG., 2D SESS. (1930) P. 1181.  A SIMILAR METHOD WAS FOR THE HOLDING
COMPANY "TO CARRY IN ITS TREASURY A LARGE RESERVE OF READILY MARKETABLE
SECURITIES WHICH MAY BE LIQUIDATED IN ORDER TO MAKE GOOD ANY
SHAREHOLDERS' LIABILITY THAT MAY BE IMPOSED UPON THE HOLDING COMPANY." 
BONBRIGHT & MEANS, THE HOLDING COMPANY (1932), P. 331.  CF. NINETEENTH
ANNUAL REPORT, SUPERINTENDENT OF BANKS OF CALIFORNIA (1928), P. 21. 
ANOTHER METHOD OF SAFEGUARDING THE DEPOSITORS WAS TO MAKE EXPRESS
PROVISION IN THE CHARTER OF THE HOLDING COMPANY THAT ITS STOCKHOLDERS
WERE RATABLY LIABLE FOR ANY STATUTORY LIABILITY IMPOSED ON IT BY REASON
OF ITS OWNERSHIP OF BANK STOCKS.  BRANCH, CHAIN, AND GROUP BANKING, OP.
CIT., PP. 1042-1043; BARBOUR V. THOMAS 86 F.2D 510, 513-514.  WISCONSIN
PROVIDED FOR SUCH A LIABILITY BY STATUTE.  WIS. STAT. 1941, SEC.
221.56. 

FN9  "THE BANCOKENTUCKY COMPANY WAS ORGANIZED UNDER THE LAWS OF THE
STATE OF DELAWARE ON JULY 16, 1929, WITH AN AUTHORIZED CAPITAL OF
2,000,000 SHARES OF $10 PAR VALUE.  THE COMPANY WAS ORGANIZED FOR THE
PURPOSE OF OWNING A CONTROLLING INTEREST IN STATE AND NATIONAL BANKS
LOCATED PRIMARILY IN KENTUCKY, OHIO AND INDIANA.  ITS CHARTER GIVES IT
BROAD POWERS ENTITLING IT TO ENGAGE IN A WIDE RANGE OF INVESTMENT AND
OTHER ACTIVITIES. 

"THE BANCOKENTUCKY COMPANY HAS ACQUIRED, THROUGH AN EXCHANGE OF
STOCK, NEARLY 100% OF THE SHARES OF THE NATIONAL BANK OF KENTUCKY
LOUISVILLE TRUST COMPANY, AND IN ADDITION ITS STOCKHOLDERS HAVE
SUBSCRIBED TO 480,000 SHARES OF ITS STOCK FOR CASH.  THIS CASH WILL BE
USED FOR ACQUIRING MAJORITY INTERESTS IN OTHER BANKS AND FOR OTHER
CORPORATE PURPOSES." 

IN LISTING ITS SHARES ON THE CHICAGO STOCK EXCHANGE IT GAVE THE
EXCHANGE THE FOLLOWING DESCRIPTION OF ITS BUSINESS: 

"(B)  PRIMARY PURPOSE:  TO ACQUIRE CONTROL AND OPERATE BANKS AND
TRUST COMPANIES. 

"(C)  NATURE OF BUSINESS:  THIS COMPANY HAS NOT ENGAGED IN THE
BUSINESS OF INVESTING AND REINVESTING IN A DIVERSIFIED LIST OF
SECURITIES OF OTHER CORPORATIONS FOR REVENUE AND PROFIT, BUT HAS
LIMITED ITS ACTIVITIES TO ACQUIRING CONTROL OF BANKS AND TRUST
COMPANIES AND THE OPERATION OF SAME." 

FN10  THUS A CIRCULAR OF BLYTH & CO. STATED: 

"THE BANCOKENTUCKY COMPANY WAS RECENTLY FORMED TO ACQUIRE AND HOLD
CONTROLLING INTERESTS IN COMMERCIAL BANKS THROUGHOUT THE MIDDLE WEST. 
BY CHARTER, BROAD POWERS ARE CONFERRED UPON THE COMPANY, SO THAT ALL
TYPES OF OPERATIONS IN THE FINANCIAL FIELD ARE PERMITTED BUT NO
INVESTMENTS ARE CONTEMPLATED OTHER THAN CONTROLLING INTERESTS IN
FINANCIAL INSTITUTIONS. 

"UPON COMPLETION OF PRESENT TRANSACTIONS THE COMPANY WILL CONTROL THE
NATIONAL BANK OF KENTUCKY, ORGANIZED IN 1834, THE LOUISVILLE NATIONAL
BANK AND TRUST CO., ORGANIZED IN 1884 AS LOUISVILLE TRUST COMPANY, BOTH
OF LOUISVILLE, KY., THE PEARL MARKET BANK & TRUST CO., ORGANIZED 1907,
AND THE BRIGHTON BANK & TRUST CO., ORGANIZED 1898, BOTH OF CINCINNATI,
OHIO, AND THE CENTRAL SAVINGS BANK AND TRUST COMPANY, ORGANIZED 1906,
OF COVINGTON, KY.  IN ADDITION, THE COMPANY HAS FUNDS OF APPROXIMATELY
$6,000,000, WHICH ARE EXPECTED TO BE USED FOR THE ACQUIRING OF
ADDITIONAL BANKING INSTITUTIONS." 

FN11  AS STATED IN S. REP. NO. 77, 73D CONG., 1ST SESS., P. 11:  "THE
AFFILIATES OF THIS TYPE (HOLDING COMPANIES) ARE PROHIBITED FROM VOTING
THE STOCKS OF NATIONAL BANKS UNLESS THEY ARE WILLING TO UNDERTAKE TO
ACCEPT EXAMINATION BY THE FEDERAL RESERVE BOARD, DIVEST THEMSELVES OF
OWNERSHIP OF STOCK AND BOND FINANCING CONCERNS, AND COMPLY WITH
REGULATIONS DESIGNED TO INSURE THEIR OWNERSHIP OF SUFFICIENT FREE
ASSETS TO MAKE SURE THAT THEY CAN SATISFY THE DOUBLE LIABILITY OF THEIR
SHAREHOLDERS IN CASE ANY OF THE BANKS OWNED BY SUCH A COMPANY SHOULD GO
INTO THE HANDS OF RECEIVERS OR BE CLOSED." 

FN12  THE OLD STOCKHOLDERS OF THE BANK HAVE A LESSER INTEREST IN THE
SHARES OF THE BANK THAN THEY HAD PRIOR TO THE EXCHANGE.  THEIR INTEREST
IN THE SHARES OF THE BANK DECREASED PROPORTIONATELY WITH THE INCREASE
IN THE OUTSTANDING STOCK OF BANCO.  THAT RESULTED IN A PRO RATA
REDUCTION IN THEIR LIABILITY.  THE OTHER GROUP OF STOCKHOLDERS OF BANCO
ACQUIRED THAT PORTION OF THE LIABILITY OF WHICH THE OLD STOCKHOLDERS OF
THE BANK WERE RELIEVED. 

MR. JUSTICE JACKSON, DISSENTING: 

MR. JUSTICE ROBERTS, MR. JUSTICE REED, MR. JUSTICE FRANKFURTER, AND I
FIND OURSELVES UNABLE TO JOIN IN THE JUDGMENT OF THE COURT. 

THE COURT ACCEPTS CONCURRENT FINDINGS OF FACT BY THE TWO LOWER
COURTS, BUT REVERSES THEIR CONCURRENT JUDGMENT.  IT HOLDS THAT THE
FINDINGS ESTABLISH LIABILITY AS MATTER OF LAW ON TWO VERY DIFFERENT
KINDS OF STOCKHOLDINGS:  (1) HOLDING COMPANY STOCK TAKEN IN EXCHANGE
FOR DOUBLE LIABILITY STOCK OF THE NATIONAL BANK OF KENTUCKY; AND (2)
HOLDING COMPANY STOCK BOUGHT AND FULLY PAID FOR IN CASH.  WE THINK
HOLDERS OF THE LATTER ARE NOT LIABLE ON ANY PRINCIPLE HERETOFORE KNOWN
TO THE LAW AND THAT IF OWNERS OF THE FORMER ARE TO BE HELD IT MUST BE
ON A QUITE DIFFERENT PRINCIPLE THAN THAT STATED BY THE COURT. 

                                  I. 

FORMER NATIONAL BANK OF KENTUCKY STOCKHOLDERS HAD STOCK IN THE BANK
ITSELF WHICH CARRIED DOUBLE LIABILITY.  FN1  THE BANK FAILED NOVEMBER
30, 1930, AND IF THEY HAD THEN HELD THAT STOCK, EACH WOULD HAVE BEEN
LIABLE FOR ASSESSMENT UPON HIS SHARES.  THE AGGREGATE ASSESSMENT WAS
$4,000,000.  ONLY ABOUT A YEAR BEFORE THE FAILURE, ON SEPTEMBER 19,
1929, THIS DOUBLE-LIABILITY BANK STOCK WAS EXCHANGED FOR SHARES OF THE
HOLDING COMPANY PURPORTING TO BE FULLY PAID AND NONASSESSABLE.  AT THE
SAME TIME BANK OF KENTUCKY STOCKHOLDERS ALSO BOUGHT ADDITIONAL HOLDING
COMPANY STOCK FOR CASH TO THE AMOUNT OF $4,471,950.  BANK OF KENTUCKY
STOCKHOLDERS AS A GROUP THUS PAID INTO THE HOLDING COMPANY CASH MORE
THAN SUFFICIENT TO MEET THE ASSESSMENT NOW LEVIED.  IN ADDITION TO
THAT, INVESTORS WHO WERE NOT CONNECTED WITH THE BANK BOUGHT SHARES FOR
CASH AMOUNTING TO $5,397,000.  THE COURT NEVERTHELESS HOLDS THAT THE
BANK OF KENTUCKY STOCKHOLDERS CONTRAVENED THE POLICY OF THE LAW AND ARE
SUBJECT TO THE DOUBLE LIABILITY BECAUSE THEY "DID NOT CONSTITUTE BANCO
AS AN ADEQUATE FINANCIAL SUBSTITUTE IN THEIR STEAD."  WE DO NOT SEE HOW
SUCH A STATEMENT OF FACT, AND IT CERTAINLY IS NOT A MATTER OF LAW, CAN
BE CONFORMABLE WITH ACCEPTANCE OF THE FINDINGS OF FACT OF THE COURTS
BELOW.  NOR ARE WE ABLE TO RECONCILE THE VIEW THAT "THE OLD GROUP OF
STOCKHOLDERS MUST BE HELD TO HAVE RETAINED  ...  LIABILITY AS
STOCKHOLDERS OF THE BANK" WITH THE ONE LATER EXPRESSED THAT THEIR
INTEREST WAS "DILUTED" SO AS TO GIVE THEM A PRO RATA REDUCTION OF
LIABILITY.  (SEE NOTE 12 OF THE OPINION OF THE COURT.)  IT SEEMS TO US
THAT THE TRANSFER OF THEIR BANK STOCK TO THE HOLDING COMPANY EITHER WAS
VALID, IN WHICH CASE IT RELIEVED OF ALL LIABILITY; OR IT WAS INVALID,
IN WHICH CASE IT RELIEVED OF NO LIABILITY.  THE DOCTRINE THAT A
TRANSFER MAY BE GOOD ENOUGH TO DILUTE LIABILITY BUT BAD ENOUGH TO CARRY
ALONG A PART OF IT IS NEW TO US AND WE HAVE DIFFICULTY GRASPING ITS
IMPLICATIONS. 

WE ARE, HOWEVER, AGREED THAT IT WOULD BE A PROPER USE OF THE POWER OF
THIS COURT FOR IT TO EXAMINE THE EVIDENCE THAT LIES BACK OF THESE
FINDINGS AND DETERMINE WHETHER CLEAR ERROR HAS BEEN COMMITTED AND
WHETHER THE CONDITIONS DISCLOSED ARE SUCH THAT A BONA FIDE TRANSFER OF
THE STOCK TOOK PLACE SUFFICIENT TO SHAKE OFF DOUBLE-LIABILITY
OBLIGATIONS. 

IN SPITE OF THE EXCHANGE OF NATIONAL BANK OF KENTUCKY STOCK, ITS
STOCKHOLDERS THROUGH THE HOLDING COMPANY KEPT BOTH A LARGE MEASURE OF
CONTROL OF THE BANK AND THE BENEFITS OF INVESTMENT IN IT.  THEY, OR
THOSE ACTING IN THEIR BEHALF, HAD DETERMINED THE POLICY OF THE HOLDING
COMPANY, HAD SPONSORED ITS REPRESENTATIVES, AND HAD SELECTED ITS
OFFICERS AND PERSONNEL, INCLUDING THE MANAGER WHO PROVED TO BE FALSE TO
HIS TRUST.  THERE IS EVIDENCE THAT THE NATIONAL BANK OF KENTUCKY HAD
FOR SOME TIME BEEN UNDER CRITICISM BY THE COMPTROLLER FOR MANY OF ITS
LOANS AND SOME OF ITS POLICIES, ALTHOUGH IT IS FOUND NOT TO HAVE BEEN
INSOLVENT.  THE EXCHANGE DID NOT CONSIST OF INDIVIDUAL ACTS BUT WAS A
CONCERTED MOVEMENT, PLANNED BY THE BANK MANAGEMENT, BY WHICH THE
HOLDING COMPANY ABSORBED ALL OF THE STOCKHOLDINGS AND ALL OF THE DOUBLE
LIABILITY.    THE COURT MIGHT PROPERLY, IF EXAMINATION OF THE EVIDENCE
SHOULD WARRANT IT, REACH A LEGAL CONCLUSION THAT THE DOUBLE LIABILITY
OF THE STOCKHOLDERS OF THE NATIONAL BANK OF KENTUCKY SURVIVES THE
EXCHANGE AND THAT THOSE WHO HAVE CONTINUED THEIR INTEREST IN THE BANK
THROUGH THE HOLDING COMPANY ARE LIABLE UPON ASSESSMENT IN THE SAME
MANNER AND TO THE EXTENT THAT THEY WOULD HAVE BEEN HAD THE HOLDING
COMPANY TRANSACTIONS NEVER OCCURRED.  BUT THIS WOULD BE BECAUSE THE
FORMAL TRANSFER OF THE STOCK OUT OF THEIR OWN NAMES WOULD NOT BE
RECOGNIZED AS A DEFENSE.  THE COURT'S CONCLUSION RESTS ON A QUITE
DIFFERENT THEORY.  IT CONCLUDES THAT THE TRANSFER WAS VALID TO RELIEVE
THESE STOCKHOLDERS OF THEIR LIABILITY AS STOCKHOLDERS OF THE BANK, BUT
THAT THEY BECAME SUBJECT TO A NEW AND SMALLER LIABILITY AS STOCKHOLDERS
OF A HOLDING COMPANY.  WITH THIS WE CANNOT AGREE.  THE HOLDING COMPANY,
ITS FINANCING, ITS MANAGEMENT, AND ALL THAT RELATES TO IT CONSTITUTE
RELEVANT MATERIAL AS TO WHETHER UNDER PRINCIPLES THAT HAVE LONG BEEN
RECOGNIZED THE TRANSFER IS GOOD.  WE DO NOT THINK THEY CREATE A NEW
LIABILITY. 

   II. 

AFTER HOLDING THAT FORMER OWNERS OF NATIONAL BANK OF KENTUCKY SHARES
ARE LIABLE BECAUSE THEY DID NOT FIND AN ADEQUATE SUBSTITUTE FOR THEIR
OWN PERSONAL LIABILITY, THE COURT PROCEEDS TO HOLD PURCHASERS OF
HOLDING-COMPANY STOCK FOR CASH TO BE UNDER A SUBSTITUTED LIABILITY PRO
TANTO.  THE GROUNDS UPON WHICH BANK OF KENTUCKY STOCKHOLDERS AND NON
BANK OF KENTUCKY STOCKHOLDERS ARE BOTH HELD SEEM TO CONFLICT.  IF THE
NEW STOCKHOLDERS FOR CASH ARE LIABLE IT IS HARD TO SEE WHY THE OLD ONES
HAVE NOT FOUND A SUBSTITUTE, AND IF THE BANK OF KENTUCKY STOCKHOLDERS
HAVE NOT FOUND A SUBSTITUTE, IT IS DIFFICULT TO SEE A BASIS ON WHICH
THE NEW STOCKHOLDERS ARE LIABLE. 

STOCK PURCHASERS FOR CASH HAVE AT NO TIME OWNED A STOCK THAT
PURPORTED TO CARRY DOUBLE LIABILITY.  ON THE CONTRARY, BY THE TERMS OF
THE STOCK CERTIFICATES AND BY THE LAW OF THE CORPORATION'S BEING, THEIR
SHARES WERE FULLY PAID AND NONASSESSABLE.  THESE STOCKHOLDERS CANNOT BE
SAID IN ANY WAY TO HAVE ASSUMED ANY EXPRESS OR IMPLIED CONTRACTUAL
ASSESSMENT LIABILITY.  NO STATUTE OF THE UNITED STATES AND NO
APPLICABLE STATE STATUTE THEN OR SINCE HAS PURPORTED TO IMPOSE A DOUBLE
LIABILITY UPON THESE HOLDING-COMPANY SHARES.  NO CONTROLLING PRECEDENT
IN THIS COURT AT THE TIME THESE STOCKHOLDERS PURCHASED OR SINCE (UNTIL
TODAY) PURPORTED TO ATTACH A DOUBLE LIABILITY TO SUCH SHARES.  FN2 

THE REASON GIVEN FOR THIS DECISION IS THAT "THE INTERPOSITION OF A
CORPORATION WILL NOT BE ALLOWED TO DEFEAT A LEGISLATIVE POLICY" AND
THAT "NO STATE MAY ENDOW ITS CORPORATE CREATURES WITH THE POWER TO
PLACE THEMSELVES ABOVE THE CONGRESS OF THE UNITED STATES AND DEFEAT THE
FEDERAL POLICY CONCERNING NATIONAL BANKS WHICH CONGRESS HAS
ANNOUNCED." 

WE HAVE BEEN UNABLE TO FIND THAT CONGRESS EVER HAS ANNOUNCED A
LEGISLATIVE POLICY SUCH AS THE COURT ANNOUNCES.  AND THE COURT NOWHERE
POINTS IT OUT.  THE NATIONAL BANKING ACT APPLICABLE AT THE TIME
PROVIDED THAT THE STOCKHOLDERS "OF EVERY NATIONAL BANKING ASSOCIATION"
SHALL BE UNDER ASSESSMENT LIABILITY.  BUT CONGRESS NOWHERE HAS SAID
THAT THE STOCKHOLDERS OF A CORPORATION THAT IS NOT A NATIONAL BANKING
ASSOCIATION SHALL BE LIABLE TO ASSESSMENT BECAUSE THE LATTER
CORPORATION HELD SOME OR ALL OF THE STOCK OF A NATIONAL BANK.  INDEED,
THE HISTORY OF BANKING LEGISLATION SHOWS THAT CONGRESS HAS CONSIDERED
THE PROBLEMS CREATED BY THE HOLDING COMPANY AND NOT ONLY HAS FAILED TO
ADOPT SUCH A POLICY AS THE COURT IS DECLARING, BUT HAS MADE OTHER
PROVISIONS INCONSISTENT WITH SUCH A POLICY. 

NO LEGISLATION ON THE SUBJECT APPEARS UNTIL 1933, WHEN CONGRESS
ENACTED DETAILED REGULATION OF THE RELATIONS BETWEEN HOLDING COMPANIES
AND NATIONAL BANKS.  IT REQUIRED THE HOLDING COMPANY TO OBTAIN A PERMIT
TO VOTE NATIONAL BANK SHARES AND EMPOWERED THE BOARD OF GOVERNORS OF
THE FEDERAL RESERVE SYSTEM TO GRANT OR WITHHOLD THE PERMIT N3.  NO
PERMIT CAN BE GRANTED EXCEPT UPON CERTAIN CONDITIONS, AND ASSUMPTION BY
HOLDING-COMPANY STOCKHOLDERS OF AN ASSESSMENT LIABILITY IS NOT AMONG
THEM.  IN GENERAL, THEY ARE (A) THAT THE HOLDING COMPANY MUST SUBMIT TO
EXAMINATION IN THE SAME MANNER AS THE NATIONAL BANK AND MUST PUBLISH
PERIODIC STATEMENTS OF CONDITION; (B) THAT AFTER FIVE YEARS FROM THE
STATUTE'S ENACTMENT, EACH HOLDING COMPANY MUST POSSESS READILY
MARKETABLE ASSETS AND FREE ASSETS OTHER THAN BANK STOCK IN A PRESCRIBED
AMOUNT; AND (C) THAT AFTER FIVE YEARS A HOLDING COMPANY WHOSE
STOCKHOLDERS OR MEMBERS ARE INDIVIDUALLY AND SEVERALLY LIABLE MAY BE
RELIEVED OF ESTABLISHING A PART OF THIS RESERVE UNDER CERTAIN
CIRCUMSTANCES.  CONGRESS WAS INFORMED THAT SOME BANK STOCK HOLDING
CORPORATIONS WERE, BY THE LAW OF THE STATES IN WHICH THEY WERE
INCORPORATED, SUBJECT TO DOUBLE LIABILITY JUST AS WERE STOCKHOLDERS OF
BANKS.  IT WAS ALSO INFORMED THAT OTHER BANK HOLDING CORPORATIONS BY
THE LAW OF THEIR INCORPORATION WERE NOT SO LIABLE.  FN4  IT DID NOT
EXPRESSLY OR BY IMPLICATION RECOGNIZE OR CREATE A UNIFORM DOUBLE
LIABILITY BY FEDERAL ACT ON STOCKHOLDERS OF STATE-CREATED HOLDING
COMPANIES.  IT MADE SPECIFIC PROVISION, ON THE CONTRARY, FOR EACH CLASS
OF CORPORATION.  WHERE DOES THIS COURT GET AUTHORITY TO DISREGARD THE
DISTINCTION CONGRESS HAS THUS CREATED AND TO IMPOSE A SINGLE RULE OF
ITS OWN MAKING INSTEAD?  WHEN CONGRESS HAS EXPRESSLY SET UP A STANDARD
OF DIVERSIFICATION FOR HOLDING COMPANY ASSETS AND HAS GIVEN THE
COMPANIES FIVE YEARS TO MEET IT, FROM WHAT DO WE DERIVE AUTHORITY TO
SAY THE FIVE-YEAR ADJUSTMENT PERIOD SHALL BE IGNORED?  HOW CAN WE SAY
RETROACTIVELY THAT THERE IS A LIABILITY FOR FAILURE TO DO BEFORE
CONGRESS ACTED SOMETHING WHICH, AFTER IT DID ACT, IT EXPRESSLY GAVE
FIVE YEARS TO DO?  AND HOW CAN SUCH A RESULT BE SAID TO BE AN
ENFORCEMENT OF CONGRESSIONAL POLICY, WHICH WE UNDERSTAND TO BE THE
BASIS OF THE COURT'S OPINION? 

                          III. 

IF TO LEGISLATE WERE THE PROVINCE OF THIS COURT, WE WOULD BE AT
LIBERTY CANDIDLY TO EXERCISE DISCRETION TOWARD THE UNDOING OF THE
HOLDING COMPANY.  SOME OF US FEEL THAT AS UTILIZED IN THIS COUNTRY IT
IS, WITH A FEW EXCEPTIONS, A MENACE TO RESPONSIBLE MANAGEMENT AND TO
SOUND FINANCE, SHIFTING CONTROL OF LOCAL INSTITUTIONS TO ABSENTEE
MANAGEMENTS AND CENTRALIZING IN FEW HANDS CONTROL OF ASSETS AND
ENTERPRISES BIGGER THAN THEY ARE ABLE WELL TO MANAGE - VIEWS WHICH ARE
MATTERS OF RECORD.  FN5 

BUT WE ARE OF ONE OPINION THAT NO SUCH LATITUDE IS CONFIDED TO JUDGES
AS HERE IS EXERCISED.  WE ARE DEALING WITH A VARIETY OF LIABILITY
WITHOUT FAULT.  THE COURT IS PROFESSING TO IMPOSE IT, NOT AS A MATTER
OF JUDGE-MADE LAW, BUT AS A MATTER OF LEGISLATIVE POLICY, AND IT CANNOT
CITE SO MUCH AS A STATUTORY HINT OF SUCH A POLICY.  THE COURT IS NOT
ENFORCING A POLICY OF CONGRESS; IT IS COMPETING WITH CONGRESS IN
CREATING NEW REGULATIONS IN BANKING, A FIELD PECULIARLY WITHIN
LEGISLATIVE RATHER THAN JUDICIAL COMPETENCE.  NOR WAS SUCH A POLICY OF
ASSESSMENT LIABILITY ONE WHOSE IMPORTANCE WAS SO TRANSCENDING AS TO SET
ASIDE THE POLICY OF PERMITTING CORPORATE ENTERPRISE UNDER LIMITED
LIABILITY.  CONGRESS HAS SINCE REPEALED THE DOUBLE LIABILITY, EVEN OF
HOLDERS OF STOCK IN NATIONAL BANKS; FN6  AND WHEN IN FORCE, IT HAD
LITTLE PRACTICAL VALUE TO DEPOSITORS.  FN7  STATES ALSO HAVE ABANDONED
THE ASSESSMENT PLAN.  FN8  COURTS SHOULD, OF COURSE, SEE THAT THE
CONGRESSIONAL POLICY IS NOT DEFEATED BY ANY FRAUD, BY CREATING SHAM
CORPORATIONS, OR BY ANY OTHER ARTIFICE.  WHEN, HOWEVER, ASSESSMENT
LIABILITY IS A FAILURE ONLY BECAUSE THE CORPORATE OWNER OF THE STOCK IS
NOT SOLVENT, THAT IS NOT A CIRCUMSTANCE WHICH WILL WARRANT DISREGARD OF
THE CORPORATE ENTITY SO AS TO RENDER STOCKHOLDERS LIABLE.  THE FINDINGS
HERE, ACCEPTED BY THE COURT, ELIMINATE EVERY CHARGE OF FRAUD, BAD
FAITH, OR INTENTIONAL EVASION OF LIABILITY.  FN9 

WE ARE FULLY AGREED THAT BANK OF KENTUCKY DEPOSITORS, HOWEVER, SHOULD
NOT BE PREJUDICED BY A TRANSFER TO THE HOLDING COMPANY OF ITS STOCK IN
VIOLATION OF LETTER OR SPIRIT OF THE NATIONAL BANKING ACT.  IF THE CASE
WARRANTS DISREGARD OF THE TRANSFER, THE DEPOSITORS THEN WOULD HAVE JUST
THE PROTECTION THAT THEY WOULD HAVE ENJOYED HAD NO HOLDING COMPANY
INTERVENED.  THE COURT, HOWEVER, MAKES THE HOLDING COMPANY A WINDFALL
TO BANK CREDITORS BY EXTENDING THE LIABILITY TO PERSONS NEVER OTHERWISE
REACHABLE.  WE MAY DISALLOW THE HOLDING COMPANY AS A SANCTUARY FOR
STOCKHOLDERS ESCAPING PRE-EXISTING LIABILITY WITHOUT MAKING OF IT A
TRAP FOR UNWARY AND UNWARNED INVESTORS. 

TO DISREGARD THE TRANSFER OF THIS STOCK, AND TO HOLD FORMER
STOCKHOLDERS LIABLE TO THE SAME EXTENT AS IF THEY HAD MADE NO SUCH
TRANSFER, IS THE MANNER OF PROCEEDING INDICATED UNDER PROPER
CIRCUMSTANCES BY THE NATIONAL BANKING ACT ITSELF.  INSTEAD OF
CONSIDERING WHETHER TO DISREGARD THE TRANSFER THE COURT DISREGARDS THE
CORPORATE ENTITY OF THE HOLDING COMPANY BECAUSE IT SAYS THESE
OBLIGATIONS ARISE FROM LEGISLATIVE POLICY.  EVEN IF WE COULD FIND SUCH
A POLICY, LEGISLATIVE LIABILITIES ARE NUMEROUS.  IT IS PROBABLY A
LEGISLATIVE POLICY THAT A CORPORATION SHALL PAY ALL OF ITS DEBTS.  THE
REASONING EMPLOYED BY THE COURT, WE SHOULD THINK, WOULD LEAVE IT
UNCERTAIN WHETHER STOCKHOLDERS MAY NOT BE LIABLE FOR MANY OTHER TYPES
OF INDEBTEDNESS.  CONGRESS, IF THE MATTER OF BANKING REFORM WERE LEFT
TO IT, COULD DEFINE THE LIMITS OF VICARIOUS LIABILITY AT THE TIME IT
WAS IMPOSED.  THE COURT IS LEAVING THE LIMITS AND EXTENT OF THAT
LIABILITY SO VAGUE THAT A WHOLE CLUSTER OF DECISIONS WILL HAVE TO BE
WRITTEN TO CLARIFY WHAT IS BEING DONE TODAY.  AND MEANWHILE WE KNOW OF
NO WAY THAT A STOCKHOLDER CAN LEARN THE EXTENT AND CIRCUMSTANCES OF
STOCKHOLDER LIABILITY EXCEPT TO GIVE HIS NAME TO A LEADING CASE.  FN10 

THE COURT ADMITS THAT THE JUDGMENT IS "HARSH."  WHY IS IT SO IF IT IS
ACCORDING TO ANY LAW THAT WAS KNOWN OR KNOWABLE AT THE TIME OF THE
TRANSACTIONS?  TO ENFORCE A DOUBLE LIABILITY SO INCURRED WOULD BE NO
HARSHER THAN TO ENFORCE ANY CONTRACT OBLIGATION THAT HAD BEEN ASSUMED
WITHOUT EXPECTING IT WOULD RESULT IN LIABILITY.  THIS DECISION IS MADE
HARSH BY THE ELEMENT OF SURPRISE.  FN11  ITS ONLY HARSHNESS IS THAT
WHICH COMES OF THE COURT'S DOING WITH BACKWARDS EFFECT WHAT CONGRESS
HAS NOT SEEN FIT TO DO WITH FORWARD EFFECT. 

FN1  THE PERTINENT SECTIONS OF THE BANK ACT FOLLOW: 

"THE SHAREHOLDERS OF EVERY NATIONAL BANKING ASSOCIATION SHALL BE HELD
INDIVIDUALLY RESPONSIBLE ...  FOR ALL CONTRACTS, DEBTS, AND ENGAGEMENTS
OF SUCH ASSOCIATION, TO THE EXTENT OF THE AMOUNT OF THEIR STOCK
THEREIN, AT THE PAR VALUE THEREOF, IN ADDITION TO THE AMOUNT INVESTED
IN SUCH SHARES; ...  "  12 U.S.C. SEC. 63. 

"THE STOCKHOLDERS OF EVERY NATIONAL BANKING ASSOCIATION SHALL BE HELD
INDIVIDUAL RESPONSIBLE FOR ALL CONTRACTS, DEBTS, AND ENGAGEMENTS OF
SUCH ASSOCIATION, EACH TO THE AMOUNT OF HIS STOCK THEREIN, AT THE PAR
VALUE THEREOF IN ADDITION TO THE AMOUNT INVESTED IN SUCH STOCK.  THE
STOCKHOLDERS IN ANY NATIONAL BANKING ASSOCIATION WHO SHALL HAVE
TRANSFERRED THEIR SHARES OR REGISTERED THE TRANSFER THEREOF WITHIN
SIXTY DAYS NEXT BEFORE THE DATE OF THE FAILURE OF SUCH ASSOCIATION TO
MEET ITS OBLIGATIONS, OR WITH KNOWLEDGE OF SUCH IMPENDING FAILURE,
SHALL BE LIABLE TO THE SAME EXTENT AS IF THEY HAD MADE NO SUCH
TRANSFER, TO THE EXTENT THAT THE SUBSEQUENT TRANSFEREE FAILS TO MEET
SUCH LIABILITY; BUT THIS PROVISION SHALL NOT BE CONSTRUED TO AFFECT IN
ANY WAY ANY RECOURSE WHICH SUCH SHAREHOLDERS MIGHT OTHERWISE HAVE
AGAINST THOSE IN WHOSE NAMES SUCH SHARES ARE REGISTERED AT THE TIME OF
SUCH FAILURE."  12 U.S.C. SEC. 64. 

FN2  THE AUTHORITIES CITED TO SUPPORT THE COURT'S DISREGARD OF THE
CORPORATE ENTITY FALL FAR SHORT OF PERSUASION.  THE QUOTATION OF THE
STATEMENT BY MR. JUSTICE CARDOZO FROM BERKEY V. THIRD AVE. RY. CO., 244
N.Y. 84, 155 N.E. 58, 61, "THAT A SURRENDER OF THAT PRINCIPLE OF
LIMITED LIABILITY WOULD BE MADE 'WHEN THE SACRIFICE IS ESSENTIAL TO THE
END THAT SOME ACCEPTED PUBLIC POLICY MAY BE DEFENDED OR UPHELD'" HAS A
VERY DIFFERENT SIGNIFICANCE IN ITS CONTEXT.  THE FACTS, INCLUDING
INTERCHANGEABLE NAMES OF PARENT AND SUBSIDIARY, COMPLETE FINANCIAL AND
OPERATING DOMINATION, AND USE OF ONE COMPANY'S ASSETS BY THE OTHER,
INDICATED A STRONGER CASE FOR DISREGARD OF THE CORPORATE FICTION THAN
DO THE FINDINGS HERE.  NEVERTHELESS, CHIEF JUDGE CARDOZO CONSIDERED
THAT THE CORPORATE ENTITY COULD NOT BE DISREGARDED IN FAVOR OF A TORT
CLAIMANT AND SAID:  "IN SUCH CIRCUMSTANCES, WE THWART THE PUBLIC POLICY
OF THE STATE INSTEAD OF DEFENDING OR UPHOLDING IT, WHEN WE IGNORE THE
SEPARATION BETWEEN SUBSIDIARY AND PARENT, AND TREAT THE TWO AS ONE." 

OTHER CASES CITED AFFORD NO MORE SUPPORT FOR THE DECISION.  UNITED
STATES V. MILWAUKEE REFRIGERATOR TRANSIT CO., 142 F. 247, HELD THAT
PAYMENTS BY A CARRIER TO A CORPORATION WHOLLY CONTROLLED BY A SHIPPER
MIGHT CONSTITUTE REBATES UNDER THE ELKINS ACT.  THE STATEMENTS IN
POWELL, PARENT & SUBSIDIARY CORPORATIONS, 77-81, ARE COMPLETELY GENERAL
AND TO BE READ IN THE LIGHT OF THE SPECIFIC CATEGORIES WHICH PRECEDE
THE PAGE CITATION, ALL OF WHICH INVOLVE ACTIVE WRONG BY A PARENT
CORPORATION.  LINN & LANE TIMBER CO. V. UNITED STATES, 236 U.S. 574,
INVOLVED THE QUESTION WHETHER AN "INSTRUMENTALITY" CORPORATION COULD
ACQUIRE RIGHTS WHICH WOULD ENABLE IT TO STAND BETTER THAN ITS
TRANSFEROR-CREATOR.  RICE V. SANGER BROTHERS, 27 ARIZ. 15, 229 P. 397,
FOUND A CORPORATION TO BE ORGANIZED FOR FRAUDULENT PURPOSES AND THE
FORMER PARTNERS WHO BECAME ITS STOCKHOLDERS WERE HELD LIABLE.  DONOVAN
V. PURTELL, 216 ILL. 629, 75 N.E. 334, HOLDS NOTHING MORE THAN THAT AN
OFFICER OF A CORPORATION WHO IS PERSONALLY GUILTY OF FRAUD WILL BE HELD
LIABLE THEREFOR.  GEORGE V. ROLLINS, 176 MICH. 144, 142 N.W. 337,
STANDS FOR THE PROPOSITION THAT EQUITY WILL ENFORCE A RESTRICTIVE
COVENANT AGAINST A SUCCESSOR CORPORATION FORMED FOR THE PURPOSE OF
EVADING IT.  HIGGINS V. CALIFORNIA PETROLEUM CO., 147 CAL. 363, 81 P.
1070, HELD THAT IN THE CIRCUMSTANCES CERTAIN SUCCESSOR CORPORATIONS
ASSUMED A LEASE AND THEREFORE HAD TO PAY ROYALTIES; THERE WAS NO
DISREGARDING OF THE CORPORATE ENTITY INVOLVED.  LUCKENBACH S.S. CO. V.
GRACE & CO., 267 F. 676, COMES NEARER THE MARK, BUT STILL IS FAR WIDE
OF IT.  A STEAMSHIP CORPORATION LEASED ITS FLEET OF VESSELS TO A
$10,000 CORPORATION, FORMED AND 90 PER CENT OWNED BY IT, FOR AN UTTERLY
INADEQUATE RENTAL.  IT WAS HELD THAT THIS TURNING OVER OF THE
CORPORATION'S SHIPS TO A SUBSIDIARY WHICH WAS "ITSELF IN ANOTHER FORM"
RENDERED THE PARENT CORPORATION LIABLE FOR THE SUBSIDIARY'S BREACH OF
CONTRACT.  ORIENTAL INVESTMENT CO. V. BARCLAY, 25 TEX. CIV. APP. 543,
64 S.W. 80, ALLOWED A HOTEL EMPLOYEE TO RECOVER FOR PERSONAL INJURIES
AGAINST THE PARENT HOLDING COMPANY, EVEN THOUGH TECHNICALLY HE WAS THE
EMPLOYEE OF THE SUBSIDIARY OPERATING COMPANY, OF WHOSE EXISTENCE HE WAS
UNAWARE AND WHICH HAD BEEN CAPITALIZED WITH $2,000 TO OPERATE A
PROPERTY WHOSE MONTHLY RENTAL ALONE WAS $1,500.  WEISSER V. MURSAM SHOE
CORP., 127 F.2D 344, AROSE ON DISMISSAL OF THE COMPLAINT AND IT WAS
HELD THAT ON A FULL TRIAL IT MIGHT BE FOUND THAT THE SUBSIDIARY WAS
"ONLY A TOOL OF THE OTHER DEFENDANTS, DELIBERATELY KEPT JUDGMENT-PROOF,
TO OBTAIN THE BENEFITS OF A LEASE WITH THE PLAINTIFFS WITHOUT ASSUMING
ANY OBLIGATIONS.  THE PLAINTIFFS ALLEGE THAT THIS WAS DONE
FRAUDULENTLY.  ...  "  PEPPER V. LITTON, 308 U.S. 295 AND ALBERT
RICHARDS CO. V. MAYFAIR, INC., 287 MASS. 280, 191 N.E. 430, BOTH DEALT
WITH CASES WHERE PARENT CORPORATIONS CLAIMED PRIORITY OVER OTHER
CREDITORS OF A SUBSIDIARY; IN EACH, THE SUBSIDIARY WAS HELD TO BE AN
INSTRUMENTALITY OF THE PARENT AND, TO AVOID A FRAUD ON CREDITORS, THE
LATTER'S CLAIM OF PRIORITY WAS DENIED.  IN ERICKSON V. MINNESOTA &
ONTARIO POWER CO., 134 MINN. 209, 158 N.W. 979, A PARENT CORPORATION
WAS HELD LIABLE FOR DAMAGE CAUSED BY A DAM OWNED BY A SUBSIDIARY; THE
PARENT PAID THE OPERATING EXPENSES OF THE DAM, TOOK ALL THE EARNINGS OF
THE SUBSIDIARY, HAD A MORTGAGE ON ALL ITS ASSETS, AD IN ADDITION HAD A
DIRECT RIGHT OF CONTROL OVER THE OPERATION OF THE DAM.  UNITED STATES
V. LEHIGH VALLEY R. CO., 220 U.S. 257, AND UNITED STATES V. READING
CO., 253 U.S. 26, HELD THAT A RAILROAD'S EXERCISE OF ITS POWER AS A
STOCKHOLDER MIGHT AMOUNT TO SUCH A COMMINGLING OF AFFAIRS AS TO MAKE IT
LIABLE FOR A VIOLATION OF THE COMMODITIES CLAUSE.  CHICAGO, M. & ST. P.
RY. CO. V. MINNEAPOLIS CIVIC ASSN., 247 U.S. 490, HELD THAT ADDITIONAL
TERMINAL CHARGES MADE BY A WHOLLY OWNED SUBSIDIARY AS COMPARED WITH
TERMINAL CHARGES BY THE PARENT MIGHT BE HELD TO CONSTITUTE A
DISCRIMINATION. 

FN3  SEC. 19 OF THE BANKING ACT OF 1933, AMENDING SEC. 5144 OF THE
REVISED STATUTES, PROVIDES IN PART AS FOLLOWS: 

"  ...  SHARES CONTROLLED BY ANY HOLDING COMPANY AFFILIATE OF A
NATIONAL BANK SHALL NOT BE VOTED UNLESS SUCH HOLDING COMPANY AFFILIATE
SHALL HAVE FIRST OBTAINED A VOTING PERMIT AS HEREINAFTER PROVIDED,
WHICH PERMIT IS IN FORCE AT THE TIME SUCH SHARES ARE VOTED. 

  .         .         .         .         . 

"FOR THE PURPOSES OF THIS SECTION SHARES SHALL BE DEEMED TO BE
CONTROLLED BY A HOLDING COMPANY AFFILIATE IF THEY ARE OWNED OR
CONTROLLED DIRECTLY OR INDIRECTLY BY SUCH HOLDING COMPANY AFFILIATE, OR
HELD BY ANY TRUSTEE FOR THE BENEFIT OF THE SHAREHOLDERS OR MEMBERS
THEREOF. 

"ANY SUCH HOLDING COMPANY AFFILIATE MAY MAKE APPLICATION TO THE
FEDERAL RESERVE BOARD FOR A VOTING PERMIT ENTITLING IT TO CAST ONE VOTE
AT ALL ELECTIONS OF DIRECTORS AND IN DECIDING ALL QUESTIONS AT MEETINGS
OF SHAREHOLDERS OF SUCH BANK ON EACH SHARE OF STOCK CONTROLLED BY IT OR
AUTHORIZING THE TRUSTEE OR TRUSTEES HOLDING THE STOCK FOR ITS BENEFIT
OR FOR THE BENEFIT OF ITS SHAREHOLDERS SO TO VOTE THE SAME.  THE
FEDERAL RESERVE BOARD MAY, IN ITS DISCRETION, GRANT OR WITHHOLD SUCH
PERMIT AS THE PUBLIC INTEREST MAY REQUIRE.  IN ACTING UPON SUCH
APPLICATION, THE BOARD SHALL CONSIDER THE FINANCIAL CONDITION OF THE
APPLICANT, THE GENERAL CHARACTER OF ITS MANAGEMENT, AND THE PROBABLE
EFFECT OF THE GRANTING OF SUCH PERMIT UPON THE AFFAIRS OF SUCH BANK,
BUT NO SUCH PERMIT SHALL BE GRANTED EXCEPT UPON THE FOLLOWING
CONDITIONS: 

"(A)  EVERY SUCH HOLDING COMPANY AFFILIATE SHALL, IN MAKING THE
APPLICATION FOR SUCH PERMIT, AGREE (1) TO RECEIVE, ON DATES IDENTICAL
WITH THOSE FIXED FOR THE EXAMINATION OF BANKS WITH WHICH IT IS
AFFILIATED, EXAMINERS DULY AUTHORIZED TO EXAMINE SUCH BANKS, WHO SHALL
MAKE SUCH EXAMINATIONS OF SUCH HOLDING COMPANY AFFILIATE AS SHALL BE
NECESSARY TO DISCLOSE FULLY THE RELATIONS BETWEEN SUCH BANKS AND SUCH
HOLDING COMPANY AFFILIATE AND THE EFFECT OF SUCH RELATIONS UPON THE
AFFAIRS OF SUCH BANKS, SUCH EXAMINATIONS TO BE AT THE EXPENSE OF THE
HOLDING COMPANY AFFILIATE SO EXAMINED; (2) THAT THE REPORTS OF SUCH
EXAMINERS SHALL CONTAIN SUCH INFORMATION AS SHALL BE NECESSARY TO
DISCLOSE FULLY THE RELATIONS BETWEEN SUCH AFFILIATE AND SUCH BANKS AND
THE EFFECT OF SUCH RELATIONS UPON THE AFFAIRS OF SUCH BANKS; (3) THAT
SUCH EXAMINERS MAY EXAMINE EACH BANK OWNED OR CONTROLLED BY THE HOLDING
COMPANY AFFILIATE, BOTH INDIVIDUALLY AND IN CONJUNCTION WITH OTHER
BANKS OWNED OR CONTROLLED BY SUCH HOLDING COMPANY AFFILIATE; AND (4)
THAT PUBLICATION OF INDIVIDUAL OR CONSOLIDATED STATEMENTS OF CONDITION
OF SUCH BANKS MAY BE REQUIRED; 

"(B)  AFTER FIVE YEARS AFTER THE ENACTMENT OF THE BANKING ACT OF
1933, EVERY SUCH HOLDING COMPANY AFFILIATE (1) SHALL POSSESS, AND SHALL
CONTINUE TO POSSESS DURING THE LIFE OF SUCH PERMIT, FREE AND CLEAR OF
ANY LIEN, PLEDGE, OR HYPOTHECATION OF ANY NATURE, READILY MARKETABLE
ASSETS OTHER THAN BANK STOCK IN AN AMOUNT NOT LESS THAN 12 PER CENTUM
OF THE AGGREGATE PAR VALUE OF ALL BANK STOCKS CONTROLLED BY SUCH
HOLDING COMPANY AFFILIATE, WHICH AMOUNT SHALL BE INCREASED BY NOT LESS
THAN 2 PER CENTUM PER ANNUM OF SUCH AGGREGATE PAR VALUE UNTIL SUCH
ASSETS SHALL AMOUNT TO 25 PER CENTUM OF THE AGGREGATE PAR VALUE OF SUCH
BANK STOCKS; AND (2) SHALL REINVEST IN READILY MARKETABLE ASSETS OTHER
THAN BANK STOCK ALL NET EARNINGS OVER AND ABOVE 6 PER CENTUM PER ANNUM
ON THE BOOK VALUE OF ITS OWN SHARES OUTSTANDING UNTIL SUCH ASSETS SHALL
AMOUNT TO SUCH 25 PER CENTUM OF THE AGGREGATE PAR VALUE OF ALL BANK
STOCKS CONTROLLED BY IT; 

"(C)  NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, AFTER
FIVE YEARS AFTER THE ENACTMENT OF THE BANKING ACT OF 1933, (1) ANY SUCH
HOLDING COMPANY AFFILIATE THE SHAREHOLDERS OR MEMBERS OF WHICH SHALL BE
INDIVIDUALLY AND SEVERALLY LIABLE IN PROPORTION TO THE NUMBER OF SHARES
OF SUCH HOLDING COMPANY AFFILIATE HELD BY THEM RESPECTIVELY, IN
ADDITION TO AMOUNTS INVESTED THEREIN, FOR ALL STATUTORY LIABILITY
IMPOSED ON SUCH HOLDING COMPANY AFFILIATE BY REASON OF ITS CONTROL OF
SHARES OF STOCK OF BANKS, SHALL BE REQUIRED ONLY TO ESTABLISH AND
MAINTAIN OUT OF NET EARNINGS OVER AND ABOVE 6 PER CENTUM PER ANNUM ON
THE BOOK VALUE OF ITS OWN SHARES OUTSTANDING A RESERVE OF READILY
MARKETABLE ASSETS IN AN AMOUNT OF NOT LESS THAN 12 PER CENTUM OF THE
AGGREGATE PAR VALUE OF BANK STOCKS CONTROLLED BY IT, AND (2) THE ASSETS
REQUIRED BY THIS SECTION TO BE POSSESSED BY SUCH HOLDING COMPANY
AFFILIATE MAY BE USED BY IT FOR REPLACEMENT OF CAPITAL IN BANKS
AFFILIATED WITH IT AND FOR LOSSES INCURRED IN SUCH BANKS, BUT ANY
DEFICIENCY IN SUCH ASSETS RESULTING FROM SUCH USE SHALL BE MADE UP
WITHIN SUCH PERIOD AS THE FEDERAL RESERVE BOARD MAY BY REGULATION
PRESCRIBE  ...  "  JUNE 16, 1933, C. 89, 48 STAT. 186-7. 

FN4  AT THE SENATE HEARINGS WHICH PRECEDED THE BANKING ACT OF 1933,
MR. L. E. WAKEFIELD, VICE-PRESIDENT OF ONE OF THE LARGEST BANK HOLDING
COMPANIES, TESTIFIED AS FOLLOWS WITH RESPECT TO DOUBLE LIABILITY: 

"MR. WAKEFIELD.  THE STOCKHOLDERS OF THE FIRST BANK STOCK
CORPORATION, BEING A DELAWARE CORPORATION, DO NOT HAVE A DOUBLE
LIABILITY.  WHEN WE STARTED TO ORGANIZE THIS INSTITUTION WE DID ALL THE
WORK ON THE THEORY WE WOULD HAVE IT A MINNESOTA CORPORATION, WHICH
WOULD HAVE DOUBLE LIABILITY.  AT THE LAST MINUTE, WHEN WE FOUND THAT
EVERY STOCKHOLDER IN NORTH DAKOTA, SOUTH DAKOTA, AND MONTANA WOULD, IN
CASE OF DEATH, HAVE A DOUBLE INHERITANCE TAX, THEY COMPLAINED SO
STRONGLY ABOUT THAT SITUATION WE SHIFTED AND PUT IT INTO A DELAWARE
CORPORATION. 

     .         .    .         .         . 

"THE OTHER FACTOR THAT WE HAVE HEARD DISCUSSED AND THAT I THINK OF IN
CONNECTION WITH BANKING SUCH AS WE ARE DOING IS THIS THOUGHT IN THE
PUBLIC MIND, OR SOME MINDS, THAT, FOR INSTANCE, OUR BEING A DELAWARE
CORPORATION WAS INTENDED TO AVOID THE DOUBLE LIABILITY OF
STOCKHOLDERS.  I WOULD SAY THAT IF THAT IS OF IMPORTANCE IT MIGHT
EASILY BE PROVIDED THAT A HOLDING COMPANY SHOULD CREATE A SURPLUS
ACCOUNT IN ITS HOLDINGS OR BUILD UP A SURPLUS ACCOUNT OF SOME
PROPORTION OF THE CAPITAL OF THE BANKS THAT SHOULD BE KEPT IN LIQUID
SECURITIES, OR SOMETHING OF THAT SORT.  ...  " HEARINGS BEFORE SENATE
COMMITTEE ON BANKING AND CURRENCY PURSUANT TO S. RES. 71, 71ST CONG.,
3D SESS., PT. 4, PP. 616, 620. 

EARLIER, MR. J. W. POLE, COMPTROLLER OF THE CURRENCY, HAD TESTIFIED: 

"MR. POLE.  WE CALL THAT A GROUP-BANKING SYSTEM IN THE NORTHWEST.  IN
THE CASE OF THE NORTHWEST AND THE FIRST BANK STOCK CORPORATION, I THINK
THAT THEIR STOCK IS NOT SUBJECT TO THE DOUBLE LIABILITY, ALTHOUGH THE
STOCK OF SOME HOLDING CORPORATIONS IS SUBJECT TO DOUBLE LIABILITY.  BUT
IN THE CASE OF THOSE TWO CORPORATIONS, IN THOSE PARTICULAR CASES - NOT
THAT IT OBTAINS TOO GENERALLY - THEY HAVE INVESTED IN SECURITIES OTHER
THAN BANK STOCKS, SO THAT A JUDGMENT AGAINST EITHER ONE OF THOSE
CORPORATIONS WOULD BE GOOD FOR THE ASSESSMENT. 

MR. WILLIS.  IN THOSE PARTICULAR CASES? 

MR. POLE.  IN THOSE PARTICULAR CASES; YES, SIR. 

MR. WILLIS.  BUT THERE ARE CASES WHERE THEY ARE NOT SUBJECT TO THE
ASSESSMENT? 

MR. POLE.  THERE ARE CASES WHERE THEY ARE NOT SUBJECT TO THE
ASSESSMENT; YES, AND WHERE THEY HOLD NOTHING BUT BANK STOCKS. 

MR. WILLIS.  IN THOSE CASES WHERE YOU HAVE AN AFFILIATED BANK THAT
BUYS ALL THE STOCK OF THE BANK ITSELF, WHAT BECOMES OF THE DOUBLE
LIABILITY OF THE SHAREHOLDER? 

MR. POLE.  THE SECURITIES COMPANY WHERE IT BUYS THE STOCK OF THE BANK
ITSELF, WOULD BE THE HOLDER OF THE STOCK AND SUBJECT TO ASSESSMENT. 

     .         .         .         .         . 

MR. WILLIS.  IS NOT THE DOUBLE LIABILITY THEN VERY LARGELY
NEUTRALIZED? 

MR. POLE.  YES. 

MR. WILLIS.  WHAT HAVE YOU DONE TO CORRECT THAT? 

MR. POLE.  WE HAVE DONE NOTHING TO CORRECT IT. 

MR. WILLIS.  WHAT CAN BE DONE BY LAW TO CORRECT IT? 

MR. POLE.  THAT IS A BIG PROBLEM. 

MR. WILLIS.  CAN YOU MAKE A RECOMMENDATION COVERING THAT ALONG WITH
YOUR OTHER PROBLEMS? 

MR. POLE.  YES." 

SENATE HEARINGS, SUPRA, PART 1, PP. 27-28. 

FOR A PROVISION EXTENDING DOUBLE LIABILITY TO HOLDING-COMPANY
STOCKHOLDERS, SEE WISCONSIN STAT. (1943) SEC. 221.56(3). 

FN5  SEE 56 REPORTS OF AMERICAN BAR ASSOCIATION (1931) P. 763; BRIEFS
FOR GOVERNMENT IN ELECTRIC BOND & SHARE CO. V. S.E.C., 303 U.S. 419;
TESTIMONY IN SUPPORT OF A PROPOSAL TO WITHDRAW FROM HOLDING COMPANIES
TAX EXEMPTION OF INTERCORPORATE DIVIDENDS, HEARINGS BEFORE SENATE
COMMITTEE ON FINANCE, ON H.R. 8974, 74TH CONG., 1ST SESS., P. 221, ET
SEQ. 

FN6  THE REMOVAL OF LIABILITY IS CONDITIONED UPON GIVING THE NOTICE
PRESCRIBED.  JUNE 16, 1933, C. 89, SEC. 22, 48 STAT. 189, AUG. 23,
1935, C. 614, SEC. 304, 49 STAT. 708; 12 U.S.C. SEC. 64A. 

FN7  COMPTROLLER POLE STATED AT THE SENATE HEARINGS:  "WE HEAR A GOOD
DEAL ABOUT DOUBLE LIABILITY.  IT IS NOT SO IMPORTANT AS AT FIRST ONE
MIGHT SO REGARD IT.  AS AN ILLUSTRATION, THE DEPOSITS, WE WILL SAY, OF
A BANK WITH $100,000 CAPITAL WOULD BE ORDINARILY $1,000,000.  IF YOU
COLLECTED THE ENTIRE 10 PER CENT ASSESSMENT, YOU ONLY WOULD COLLECT 10
PER CENT OF YOUR DEPOSITS AFTER ALL.  ...  BUT IN PRACTICE YOU WOULD
NOT COLLECT OVER 50 PER CENT OF THAT.  WE DO COLLECT, AS A MATTER OF
FACT, JUST ABOUT 50 PER CENT."  HEARINGS, SUPRA NOTE 4, PT. 1, P. 28. 

DEPOSITORS IN THE BANK HAVE ALREADY RECEIVED 77 PER CENT OF THEIR
DEPOSITS.  FEW PRE-DEPRESSION INVESTMENTS HAVE YIELDED SO MUCH.  ABOUT
6,000 STOCKHOLDERS OF BANCO HAVE LOST 100 PER CENT OF THEIR INVESTMENT,
AND ARE NOW FACED WITH LIABILITY IN UNDETERMINED AMOUNTS.  AS TO MANY
OF THEM, IT IS IDLE TO SAY THAT THEY HAD ACTUAL RESPONSIBILITY FOR THE
BANK'S MANAGEMENT OR ANY BETTER KNOWLEDGE OF ITS AFFAIRS THAN THE
DEPOSITORS. 

FN8  WITHIN THE LAST DECADE AT LEAST THIRTY-ONE STATES WHICH FORMERLY
HAD DOUBLE LIABILITY HAVE ABOLISHED IT EITHER ABSOLUTELY OR UPON
COMPLIANCE WITH CERTAIN CONDITIONS.  ONLY FIVE STATES APPEAR TO HAVE
RETAINED THEIR DOUBLE LIABILITY PROVISIONS INTACT, AND IN ONE OF THESE
A PROPOSAL TO ABOLISH IT IS CURRENTLY BEING CONSIDERED.  SEE
"STOCKHOLDERS' DOUBLE LIABILITY," COMMERCE CLEARING HOUSE STATE BANKING
LAW SERVICE, VOL. II. 

FN9  FINDINGS OF THE TRIAL COURT INCLUDED THE FOLLOWING: 

"61.  BANCO WAS ORGANIZED IN GOOD FAITH. 

62.  BANCO WAS 'CERTAINLY NOT A SHAM.' 

63.  BANCO WAS 'NOT ORGANIZED FOR A FRAUDULENT PURPOSE OR TO CONCEAL
SECRET OR SINISTER ENTERPRISES CONDUCTED FOR THE BENEFIT OF THE BANK.' 

64.  BANCO WAS NOT A MERE HOLDING COMPANY. 

65.  BANCO 'WAS FORMED FOR THE PURPOSE SET OUT IN THE LETTER OF JULY
19, 1929, AND FOR NO OTHER PURPOSE.' 

66.  BANCO 'WAS NOT FORMED AS A MEDIUM OR AGENCY THROUGH WHICH TO
AVOID DOUBLE LIABILITY ON THE STOCK OF THE BANK.'" 

FN10  THIS COURT HAS CONSIDERED THE DISREGARD OF THE CORPORATE
FICTION IN DONNELL V. HERRING-HALL-MARVIN SAFE CO., 208 U.S. 267, 273
AND KLEIN V. BOARD OF SUPERVISORS, 282 U.S. 19, 24. 

FN11  IN AUTHORITATIVE STUDIES MADE PRIOR TO THE ORIGIN OF THIS
CONTROVERSY WHICH INCLUDED STUDIES OF MANY OF THE CASES CITED BY THE
COURT'S OPINION WE ARE UNABLE TO FIND A TRACE OR SUGGESTION OF THE
PRESENT THEORY OF STOCKHOLDER LIABILITY FOR CORPORATE OBLIGATIONS
CREATED BY LEGISLATION.  SEE DOUGLAS AND SHANKS, INSULATION FROM
LIABILITY THROUGH SUBSIDIARY CORPORATIONS (1929), 39 YALE L.J. 193;
POWELL, PARENT AND SUBSIDIARY CORPORATIONS (1931), ESP.  CH. III;
WORMSER, DISREGARD OF THE CORPORATE FICTION (1927). 
..END :









ANDERSON NAT. BANK V. LUCKETT, 321 U.S. 233 


NO. 154.  ARGUED FEBRUARY 2, 1944.  - DECIDED FEBRUARY 28, 1944.  - 294
KY. 674, 172 S.W.2D 575, AFFIRMED. 


A STATUTE OF KENTUCKY SETS UP A COMPREHENSIVE SCHEME FOR THE
ADMINISTRATION OF ABANDONED BANK DEPOSITS.  UPON A REPORT BY THE BANK
AND NOTICE TO THE DEPOSITOR, AND WITH AN OPPORTUNITY FOR EITHER TO BE
HEARD, THE STATE TAKES INTO ITS PROTECTIVE CUSTODY BANK ACCOUNTS WHICH,
HAVING BEEN INACTIVE FOR AT LEAST TEN YEARS IF DEMAND ACCOUNTS OR FOR
AT LEAST TWENTY-FIVE YEARS IF NON-DEMAND, THE STATUTE DECLARES TO BE
PRESUMPTIVELY ABANDONED.  THE BANK IS RELIEVED OF ITS LIABILITY TO THE
DEPOSITOR, WHO RECEIVES INSTEAD A CLAIM AGAINST THE STATE, ENFORCIBLE
AT ANY TIME UNTIL THE DEPOSIT IS JUDICIALLY FOUND TO BE ABANDONED AND
FOR FIVE YEARS THEREAFTER.  REFUSAL BY THE DESIGNATED STATE OFFICER TO
MAKE PAYMENT IS REVIEWABLE BY THE STATE COURTS.  IN AN ACTION BY A
NATIONAL BANK TO ENJOIN THE ENFORCEMENT OF THE STATUTE, HELD: 

1.  IN REQUIRING PAYMENT OF THE DEPOSIT ACCOUNTS TO THE STATE ON THE
PRESCRIBED NOTICE, WITHOUT RECOURSE TO JUDICIAL PROCEEDINGS OR ANY
COURT ORDER OR JUDGMENT, THE STATUTE DOES NOT DEPRIVE THE DEPOSITOR OR
THE BANK OF PROPERTY WITHOUT DUE PROCESS OF LAW.  PP. 240, 247. 

(A)  APART FROM QUESTIONS WHICH MAY ARISE UNDER THE NATIONAL BANKING
LAWS IN THE CASE OF NATIONAL BANKS, A STATE, BY A PROCEDURE SATISFYING
CONSTITUTIONAL REQUIREMENTS, MAY COMPEL SURRENDER TO IT OF DEPOSIT
BALANCES, WHEN THERE IS SUBSTANTIAL GROUND FOR BELIEF THAT THEY HAVE
BEEN ABANDONED OR FORGOTTEN, ESPECIALLY WHERE THE STATE ACQUIRES THEM
SUBJECT TO ALL LAWFUL DEMANDS OF DEPOSITORS.  P. 240. 

(B)  THE STATUTORY REBUTTABLE PRESUMPTION OF ABANDONMENT OF DEMAND
DEPOSITS AFTER INACTIVITY OF TEN YEARS, AND OF NON-DEMAND DEPOSITS
AFTER INACTIVITY OF TWENTY-FIVE YEARS, IS SUSTAINED.  P. 241. 

(C)  SUBJECT TO THE REQUIREMENTS OF PROCEDURAL DUE PROCESS, THE
DEPOSITORS, PRIOR TO A JUDICIAL DECREE OF ACTUAL ABANDONMENT, WILL NOT
BE DEPRIVED OF THEIR PROPERTY BY THE SURRENDER OF THEIR PRESUMPTIVELY
ABANDONED BANK ACCOUNTS INTO THE CUSTODY OF THE STATE.  P. 241. 

(D)  THE REQUIREMENT THAT A DEPOSITOR WITHOUT ACTUAL NOTICE OF A
PROCEEDING FOR THE JUDICIAL DETERMINATION OF ABANDONMENT MUST MAKE
CLAIM WITHIN FIVE YEARS AFTER THE DECREE, DOES NOT INFRINGE
CONSTITUTIONAL RIGHTS.  P. 241. 

(E)  NOTICE TO THE DEPOSITORS OF THE STATUTORY PROCEEDINGS, BY THE
SHERIFF'S POSTING ON THE COURTHOUSE DOOR OR BULLETIN BOARD, FOR A
PERIOD OF SIX WEEKS, A COPY OF THE BANK'S REPORT OF DEPOSITS PRESUMED
ABANDONED, IN CONJUNCTION WITH THE NOTICE PROVIDED BY THE STATUTE
ITSELF AND BY THE TAKING OF POSSESSION OF THE BANK BALANCES BY THE
STATE, IS SUFFICIENT NOTICE TO THE DEPOSITORS TO SATISFY THE
REQUIREMENTS OF DUE PROCESS.  P. 243. 

(F)  THE FUNDAMENTAL REQUIREMENT OF DUE PROCESS IS AN OPPORTUNITY TO
BE HEARD UPON SUCH NOTICE AND PROCEEDINGS AS ARE ADEQUATE TO SAFEGUARD
THE RIGHT FOR WHICH THE CONSTITUTIONAL PROTECTION IS INVOKED.  P. 246. 

(G)  IT IS NOT AN INDISPENSABLE REQUIREMENT OF DUE PROCESS THAT EVERY
PROCEDURE AFFECTING THE OWNERSHIP OR DISPOSITION OF PROPERTY BE
EXCLUSIVELY BY JUDICIAL PROCEEDING.  STATUTORY PROCEEDINGS AFFECTING
PROPERTY RIGHTS, WHICH, BY LATER RESORT TO THE COURTS, SECURE TO
ADVERSE PARTIES AN OPPORTUNITY TO BE HEARD, SUITABLE TO THE OCCASION,
DO NOT DENY DUE PROCESS.  P. 246. 

(H)  THE MERE FACT THAT THE STATE OR ITS AUTHORITIES ACQUIRE
POSSESSION OR CONTROL OF PROPERTY AS A PRELIMINARY STEP TO THE JUDICIAL
DETERMINATION OF ASSERTED RIGHTS IN THE PROPERTY IS NOT A DENIAL OF DUE
PROCESS.  P. 247. 

2.  THE STATUTE DOES NOT INFRINGE THE NATIONAL BANKING LAWS AND DOES
NOT UNCONSTITUTIONALLY INTERFERE WITH A NATIONAL BANK AS AN
INSTRUMENTALITY OF THE FEDERAL GOVERNMENT.  PP. 247, 252. 

(A)  THE STATUTE DOES NOT DISCRIMINATE AGAINST NATIONAL BANKS IN
DIRECTING PAYMENT TO THE STATE, PURSUANT TO THE STATUTE, OF
PRESUMPTIVELY ABANDONED ACCOUNTS BY STATE AND NATIONAL BANKS.  P. 247. 

(B)  THE STATUTE IS NOT IN CONFLICT WITH ANY PROVISION OF THE
NATIONAL BANKING LAWS.  P. 247. 

(C)  FIRST NATIONAL BANK V. CALIFORNIA, 262 U.S. 366, DISTINGUISHED. 
P. 250. 

3.  AS AN APPROPRIATE INCIDENT TO THE EXERCISE OF ITS POWER TO
REQUIRE THE SURRENDER TO IT OF PRESUMPTIVELY ABANDONED ACCOUNTS IN
NATIONAL AS WELL AS STATE BANKS, THE STATE MAY REQUIRE THE BANKS TO
FILE REPORTS OF INACTIVE ACCOUNTS.  P. 252. 

ANDERSON NATIONAL BANK ET AL. V. LUCKETT, COMMISSIONER OF REVENUE, ET
AL. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT WHICH, UPON A REMAND (293
KY. 735, 170 S.W.2D 350), DISMISSED THE BILL IN A SUIT TO ENJOIN THE
ENFORCEMENT OF A STATE STATUTE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

UNDER KENTUCKY REVISED STATUTES OF 1942, CH. 393, SECS. 393.060 ET
SEQ., EVERY BANK OR TRUST COMPANY IN THE STATE IS REQUIRED TO TURN OVER
TO THE STATE, DEPOSITS WHICH HAVE REMAINED INACTIVE AND UNCLAIMED FOR
SPECIFIED PERIODS.  THE QUESTIONS FOR DECISION ARE:  (1) WHETHER THE
STATUTE UNDER WHICH THE STATE PURPORTS TO ACQUIRE THE RIGHT TO DEMAND
CUSTODY OF THE DEPOSITS, AFFORDS DUE PROCESS OF LAW, EVEN THOUGH THE
DEPOSITORS MAY NOT RECEIVE PERSONAL NOTICE OF THE PENDING TRANSFER AND
THERE MAY BE NO PRIOR JUDICIAL PROCEEDINGS, AND (2) WHETHER THE
STATUTE, AS APPLIED TO DEPOSITS IN A NATIONAL BANK, CONFLICTS WITH THE
NATIONAL BANKING LAWS OR IS AN UNCONSTITUTIONAL INTERFERENCE BY THE
STATE WITH APPELLANT'S OPERATIONS AS A BANKING INSTRUMENTALITY OF THE
UNITED STATES. 

SO FAR AS HERE RELEVANT, THE PROVISIONS OF THE STATUTE MAY BE
SUMMARILY STATED AS FOLLOWS.  DEMAND DEPOSITS HELD BY A BANK, WITH
ACCRUED INTEREST, ARE PRESUMED ABANDONED UNLESS THE OWNER HAS, WITHIN
TEN YEARS PRECEDING THE DATE FOR MAKING THE REPORT REQUIRED BY SEC.
393.110, NEGOTIATED IN WRITING WITH THE BANK, OR BEEN CREDITED WITH
INTEREST ON HIS PASSBOOK AT HIS REQUEST, OR HAD A TRANSACTION NOTED
UPON THE BOOKS OF THE BANK, OR INCREASED OR DECREASED THE AMOUNT OF HIS
DEPOSIT (SEC. 393.060).  NON-DEMAND DEPOSITS, WITH ACCRUED INTEREST,
ARE LIKEWISE PRESUMED ABANDONED, UNLESS THE OWNER, WITHIN THE TWENTY
FIVE YEARS PRECEDING THE REPORT, HAS TAKEN ONE OR MORE OF SUCH
ENUMERATED ACTIONS (SEC. 393.070). 

THE HOLDER OF PROPERTY PRESUMED ABANDONED, INCLUDING ANY NATIONAL
BANK, IS REQUIRED TO FILE WITH THE STATE DEPARTMENT OF REVENUE,
ANNUALLY BEFORE SEPTEMBER 1, A REPORT IN DUPLICATE OF SUCH PROPERTY AS
OF THE PRECEDING JULY 1; THE COPY IS SENT TO THE SHERIFF OF THE COUNTY
IN WHICH THE PROPERTY IS LOCATED, AND HE IS UNDER THE STATUTORY DUTY OF
POSTING THE COPY ON THE COURT HOUSE DOOR OR BULLETIN BOARD, BEFORE THE
FOLLOWING OCTOBER 1(SEC.  393.110(1)).  THE HOLDER IS REQUIRED TO TURN
OVER TO THE DEPARTMENT OF REVENUE BEFORE NOVEMBER 15, THE PROPERTY SO
REPORTED, UNLESS THE HOLDER OR OWNER CERTIFIES FACTS TO REBUT THE
PRESUMPTION OF ABANDONMENT, OR UNLESS THE STATUTE OF LIMITATIONS HAS
RUN AS BETWEEN THE OWNER AND THE HOLDER.  IN NEITHER SUCH CASE NEED THE
HOLDER TURN OVER THE PROPERTY EXCEPT UPON AN ORDER OF COURT.  IF A
CLAIMANT HAS FILED AN ACTION WITH RESPECT TO ANY SUCH PROPERTY, THE
HOLDER IS REQUIRED TO NOTIFY THE DEPARTMENT OF THE PENDENCY OF THE
ACTION BUT IS NOT REQUIRED TO TURN OVER THE PROPERTY DURING ITS
PENDENCY.  (SEC. 393.110(2).)  IN ANY CASE THE HOLDER OF SUCH PROPERTY
IS ENTITLED TO A JUDICIAL DETERMINATION OF HIS RIGHTS, UNDER SEC.
393.160, PROVIDING FOR APPEALS FROM THE DECISIONS OF THE COMMISSIONER
OF REVENUE, OR UNDER SEC. 393.230, PROVIDING FOR AN EQUITABLE ACTION BY
THE COMMISSIONER TO COMPEL THE SURRENDER OF SUCH PROPERTY (SEC.
393.110(3)). 

A PERSON REFUSING TO TURN OVER PROPERTY UNDER THIS STATUTE IS SUBJECT
TO A PENALTY OF 10% OF ITS AMOUNT, BUT NOT TO EXCEED $500; HE IS
SUBJECT TO NO PENALTY, HOWEVER, IF HE POSTS A COMPLIANCE BOND (SEC.
393.290).  ANY PERSON WHO TRANSFERS PROPERTY TO THE STATE UNDER THIS
STATUTE IS RELIEVED OF LIABILITY TO THE OWNER, AND THE STATE IS
REQUIRED TO REIMBURSE THE HOLDER FOR ANY SUCH LIABILITY (SEC.
393.130). 

THE COMMISSIONER MAY INSTITUTE JUDICIAL PROCEEDINGS TO ESTABLISH
CONCLUSIVELY THAT PROPERTY, IN HIS HANDS BECAUSE PRESUMED ABANDONED, IS
ACTUALLY ABANDONED, OR THAT THE OWNER OF THE PROPERTY HAS DIED AND THAT
THERE IS NO PERSON ENTITLED TO IT (SEC. 393.230(2)).  IN SUCH AN ACTION
THE PROCEDURE IS GOVERNED BY THE KENTUCKY CIVIL CODE OF PRACTICE (SEC.
393.240(2)). 

A CLAIM TO PROPERTY SURRENDERED TO THE STATE MAY BE MADE AT ANY TIME,
UNLESS THE PROPERTY HAS BEEN JUDICIALLY DETERMINED, UNDER SEC. 393.230,
TO HAVE BEEN ACTUALLY ABANDONED, IN WHICH CASE ANY CLAIM TO THE
PROPERTY BY A PERSON NOT ACTUALLY SERVED WITH NOTICE AND WHO DID NOT
APPEAR AND WHOSE CLAIM WAS NOT CONSIDERED DURING THE PROCEEDING, MUST
BE MADE WITHIN FIVE YEARS OF THE JUDICIAL DETERMINATION (SEC.
393.140(1) AND (2); AND SEE ANDERSON NATIONAL BANK V. REEVES, 293 KY.
735, 738, 741, 170 S.W.2D 350).  THE CLAIMANT IS REQUIRED TO MAKE
PUBLICATION OF HIS CLAIM IN A NEWSPAPER OF GENERAL CIRCULATION IN THE
COUNTY, OR IF THERE IS NONE, HE IS REQUIRED TO POST HIS CLAIM AT THE
COURT HOUSE DOOR AND AT THREE OTHER CONSPICUOUS PLACES IN THE COUNTY
(SEC. 393.140(3)).  THE COMMISSIONER OF REVENUE IS DIRECTED TO CONSIDER
AND DETERMINE THE VALIDITY OF ANY CLAIM AND ANY DEFENSE; IF HE APPROVES
THE CLAIM, HE MUST AUTHORIZE ITS PAYMENT (SEC. 393.150).  JUDICIAL
REVIEW OF HIS DETERMINATION IN THE APPROPRIATE STATE COURTS IS PROVIDED
(SEC. 393.160). 

THE STATUTE THUS SETS UP A COMPREHENSIVE SCHEME FOR THE
ADMINISTRATION OF ABANDONED BANK DEPOSITS.  UPON A REPORT BY THE BANK
AND NOTICE TO THE DEPOSITORS AND WITH AN OPPORTUNITY TO BE HEARD, IF
EITHER WISH IT, THE STATE TAKES INTO ITS PROTECTIVE CUSTODY BANK
ACCOUNTS WHICH, HAVING BEEN INACTIVE FOR AT LEAST TEN YEARS IF DEMAND
ACCOUNTS, OR AT LEAST TWENTY-FIVE YEARS IF NON-DEMAND, THE STATUTE
DECLARES TO BE PRESUMPTIVELY ABANDONED.  THE BANK IS RELIEVED OF ITS
LIABILITY TO THE DEPOSITORS, WHO RECEIVE INSTEAD A CLAIM AGAINST THE
STATE, ENFORCIBLE AT ANY TIME UNTIL THE DEPOSITS ARE JUDICIALLY FOUND
TO BE ABANDONED IN FACT AND FOR FIVE YEARS THEREAFTER.  REFUSAL BY THE
DESIGNATED STATE OFFICER TO MAKE PAYMENT IS REVIEWABLE BY THE STATE
COURTS. 

APPELLANT, A NATIONAL BANKING ASSOCIATION ORGANIZED UNDER THE LAWS OF
THE UNITED STATES, BROUGHT THE PRESENT SUIT IN THE CIRCUIT COURT OF
KENTUCKY FOR FRANKLIN COUNTY.  THE BILL OF COMPLAINT, FILED BY
APPELLANT ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, SOUGHT
TO ENJOIN APPELLEES, THE STATE COMMISSIONER OF REVENUE AND OTHER STATE
OFFICERS, FROM ENFORCING THE STATUTE HERE IN QUESTION.  THE CIRCUIT
COURT HELD INVALID SO MUCH OF THE CHALLENGED STATUTE AS REQUIRES THE
PAYMENT OF DEPOSITS TO THE STATE MERELY ON THE PRESCRIBED NOTICE, AND
WITHOUT THE ORDER OR JUDGMENT OF A COURT OF COMPETENT JURISDICTION.  IT
GAVE JUDGMENT PERPETUALLY ENJOINING APPELLEES FROM ENFORCING SUCH PARTS
OF THE STATUTE.  THE KENTUCKY COURT OF APPEALS SUSTAINED THE ACT IN ITS
ENTIRETY, HOLDING THAT IT AFFORDS DUE PROCESS, AND THAT IT NEITHER
INFRINGES THE NATIONAL BANKING LAWS NOR IS A PROHIBITED INTERFERENCE
WITH A BANKING INSTRUMENTALITY OF THE UNITED STATES.  IT ACCORDINGLY
REVERSED THE JUDGMENT OF THE CIRCUIT COURT, AND INSTRUCTED IT TO DENY
AN INJUNCTION.  293 KY. 735.  ON REMAND, THE CIRCUIT COURT ENTERED ITS
JUDGMENT, DISMISSING THE BILL.  THE COURT OF APPEALS AFFIRMED.  294 KY.
674, 172 S.W.2D 575.  THE CASE COMES HERE ON APPEAL UNDER SEC. 237(A)
OF THE JUDICIAL CODE, 28 U.S.C. SEC. 344(A). 

APPELLANT CONTENDS HERE:  (1) THAT THE STATUTE, IN REQUIRING PAYMENT
OF THE DEPOSIT ACCOUNTS TO THE STATE ON THE PRESCRIBED NOTICE, WITHOUT
RECOURSE TO JUDICIAL PROCEEDINGS OR ANY COURT ORDER OR JUDGMENT,
DEPRIVES THE DEPOSITORS AND APPELLANT OF PROPERTY WITHOUT DUE PROCESS
OF LAW, AND (2) THAT SUCH WITHDRAWAL OF ACCOUNTS FROM A NATIONAL BANK
INFRINGES THE NATIONAL BANKING LAWS, PARTICULARLY R.S. SEC. 5136, 12
U.S.C. SEC. 24, WHICH AUTHORIZE NATIONAL BANKS TO ACCEPT DEPOSITS AND
TO DO A BANKING BUSINESS, AND IS AN UNCONSTITUTIONAL INTERFERENCE WITH
THE FEDERALLY AUTHORIZED FUNCTION OF NATIONAL BANKS AS
INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT. 

                         I. 

APPELLANT ARGUES THAT THE STATUTE DEPRIVES BOTH THE BANK AND THE
DEPOSITORS OF THEIR PROPERTY RIGHTS IN THE BANK ACCOUNTS, AND CONTENDS
THAT THE PROCEDURE BY WHICH THE STATE ACQUIRES ITS ASSERTED RIGHT TO
DEMAND PAYMENT OF THE ACCOUNTS IS SO LACKING IN NOTICE TO DEPOSITORS
AND IN AN OPPORTUNITY FOR THEM TO BE HEARD AS TO DENY THE STATE THE
RIGHT TO ASSERT THE DEPOSITORS' CLAIMS AND AFFORD TO THE BANK NO
PROTECTION IF IT RESPONDS TO THE STATE'S DEMAND FOR PAYMENT OF THE
ACCOUNTS. 

WHILE THE KENTUCKY STATUTE IS ENTITLED "ESCHEATS," ITS PROVISIONS, SO
FAR AS APPLICABLE TO BANK DEPOSITS, ARE CONCERNED ONLY WITH PERSONAL
PROPERTY DEEMED ABANDONED.  AT COMMON LAW, ABANDONED PERSONAL PROPERTY
WAS NOT THE SUBJECT OF ESCHEAT, BUT WAS SUBJECT ONLY TO THE RIGHT OF
APPROPRIATION BY THE SOVEREIGN AS BONA VACANTIA.  SEE 7 HOLDSWORTH, A
HISTORY OF ENGLISH LAW (2D ED.)  495-496.  LIKE RIGHTS OF
APPROPRIATION, EXCEPT SO FAR AS LIMITED BY STATE LAW AND THE FOURTEENTH
AMENDMENT, EXIST IN THE SEVERAL STATES OF THE UNITED STATES.  HAMILTON
V. BROWN, 161 U.S. 256; CHRISTIANSON V. KING COUNTY, 239 U.S. 356;
SECURITY BANK V. CALIFORNIA, 263 U.S. 282; UNITED STATES V. KLEIN, 303
U.S. 276. 

APART FROM QUESTIONS WHICH MAY ARISE UNDER THE NATIONAL BANKING LAWS
IN THE CASE OF NATIONAL BANKS, IT IS NO LONGER OPEN TO DOUBT THAT A
STATE, BY A PROCEDURE SATISFYING CONSTITUTIONAL REQUIREMENTS, MAY
COMPEL SURRENDER TO IT OF DEPOSIT BALANCES, WHEN THERE IS SUBSTANTIAL
GROUND FOR BELIEF THAT THEY HAVE BEEN ABANDONED OR FORGOTTEN, SECURITY
BANK V. CALIFORNIA, SUPRA, CERTAINLY WHEN THE STATE ACQUIRES THEM
SUBJECT TO ALL LAWFUL DEMANDS OF THE DEPOSITORS.  PROVIDENT SAVINGS
INSTITUTION V. MALONE, 221 U.S. 660. 

THE DEPOSITS ARE DEBTOR OBLIGATIONS OF THE BANK, INCURRED AND TO BE
PERFORMED IN THE STATE WHERE THE BANK IS LOCATED, AND HENCE ARE SUBJECT
TO THE STATE'S DOMINION.  SEE SECURITY BANK V. CALIFORNIA, SUPRA, 285
AND CASES CITED; IRVING TRUST CO. V. DAY, 314 U.S. 556, 562.  AND IT IS
WITHIN THE CONSTITUTIONAL POWER OF THE STATE TO PROTECT THE INTERESTS
OF DEPOSITORS FROM THE RISKS WHICH ATTEND LONG NEGLECTED ACCOUNTS, BY
TAKING THEM INTO CUSTODY WHEN THEY HAVE BEEN INACTIVE SO LONG AS TO BE
PRESUMPTIVELY ABANDONED, SEE PROVIDENT SAVINGS INSTITUTION V. MALONE,
SUPRA, 664, JUST AS IT MAY PROVIDE FOR THE ADMINISTRATION OF THE
PROPERTY OF A MISSING PERSON.  CUNNIUS V. READING SCHOOL DISTRICT, 198
U.S. 458; BLINN V. NELSON, 222 U.S. 1. 

WITH RESPECT TO THE STATUTORY REBUTTABLE PRESUMPTION OF ABANDONMENT
OF DEMAND DEPOSITS AFTER INACTIVITY OF TEN YEARS AND OF NON-DEMAND
DEPOSITS AFTER INACTIVITY OF TWENTY-FIVE YEARS, WE ARE UNABLE TO SAY
THAT THE LEGISLATIVE DETERMINATION IS WITHOUT SUPPORT IN EXPERIENCE. 
WE HAVE SUSTAINED LIKE STATUTORY PRESUMPTIONS THAT SHORTER PERIODS OF
INACTIVITY FURNISH THE BASIS FOR STATE ADMINISTRATION OF UNASSERTED
CLAIMS OR DEMANDS.  SEE SECURITY BANK V. CALIFORNIA, SUPRA; CUNNIUS V.
READING SCHOOL DISTRICT, SUPRA; BLINN V. NELSON, SUPRA; CF. PROVIDENT
SAVINGS INSTITUTION V. MALONE, SUPRA. 

IN THE PRESENT POSTURE OF THE CASE WE CONCLUDE, SUBJECT TO THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS, THAT PRIOR TO A JUDICIAL DECREE
OF ACTUAL ABANDONMENT, THE DEPOSITORS WILL NOT BE DEPRIVED OF THEIR
PROPERTY BY THE SURRENDER OF THEIR BANK ACCOUNTS TO THE STATE.  WE NEED
NOT DECIDE WHETHER THE PROCEDURE FOR DETERMINING ABANDONMENT IN FACT
CONFORMS TO DUE PROCESS, FOR APPELLANT HAS NOT ATTACKED THIS PROCEDURE
HERE AND NO SUCH PROCEEDING IS BEFORE US.  PRIOR TO SUCH A DECREE THE
PRESENT STATUTE MERELY COMPELS THE SUMMARY SUBSTITUTION OF THE STATE
FOR THE BANK, AS THE DEBTOR OF THE DEPOSITORS.  IT DEPRIVES THE
DEPOSITORS OF NONE OF THEIR RIGHTS AS CREDITORS, PRESERVING THEIR RIGHT
TO DEMAND FROM THE STATE PAYMENT OF THE DEPOSITS, AND THEIR RIGHT TO
RESORT TO THE COURTS IF PAYMENT IS REFUSED.  TRUE, PAYMENT OVER OF THE
DEPOSITS TO THE STATE MAY BE THE PRECURSOR OF A DECREE OF ABANDONMENT
AND THE SHORTENING OF THE PERIOD WITHIN WHICH A CLAIMANT MAY DEMAND
PAYMENT OF HIS DEPOSIT.  BUT, IF THE NOTICE TO DEPOSITORS IS ADEQUATE,
WE CANNOT SAY THAT THE PERIOD OF FIVE YEARS ALLOWED FOR THAT PURPOSE
AFTER THE DECREE, IS AN INFRINGEMENT OF CONSTITUTIONAL RIGHTS.  TERRY
V. ANDERSON, 95 U.S. 628, 632-633, AND CASES CITED; UNITED STATES V.
MORENA, 245 U.S. 392, 397. 

APPELLANT AND THE COMPTROLLER OF THE CURRENCY, AS AMICUS CURIAE,
POINT TO THE FORMALITIES WITH WHICH THE DEPOSITORS MUST COMPLY BEFORE
THEY WILL BE ABLE TO RECOVER THEIR DEPOSITS, AND ARGUE THAT THE STATE
MAY BE LESS SOLVENT OR LESS WILLING TO PAY THAN THE BANK.  IN THE
ABSENCE OF SOME PERSUASIVE SHOWING, WHICH IS LACKING HERE, THAT THESE
FORMALITIES WILL BE MORE ONEROUS THAN THOSE WHICH WOULD OR COULD BE
PROPERLY REQUIRED BY THE BANK, OR THAT THE STATE WILL IN FACT BE LESS
ABLE OR LESS WILLING TO PAY, IT CANNOT BE ASSUMED THAT THE MERE
SUBSTITUTION OF THE STATE AS THE DEBTOR WILL DEPRIVE THE DEPOSITORS OF
THEIR PROPERTY, OR IMPOSE ON THEM AN UNCONSTITUTIONAL BURDEN.  SEE
DOHANY V. ROGERS, 281 U.S. 362, 366-368; CF. BLINN V. NELSON, SUPRA, 7;
CORN EXCHANGE BANK V. COLER, 280 U.S. 218, 223.  IN THE ABSENCE OF A
SHOWING OF INJURY, ACTUAL OR THREATENED, THERE CAN BE NO CONSTITUTIONAL
ARGUMENT.  IN RE 620 CHURCH ST. CORP., 299 U.S. 24, 27, AND CASES
CITED.    SINCE THE BANK IS A DEBTOR TO ITS DEPOSITORS, IT CAN
INTERPOSE NO DUE PROCESS OR CONTRACT CLAUSE OBJECTION TO PAYMENT OF THE
CLAIMED DEPOSITS TO THE STATE, IF THE STATE IS LAWFULLY ENTITLED TO
DEMAND PAYMENT, FOR IN THAT CASE PAYMENT OF THE DEBT TO THE STATE,
UNDER THE STATUTE, RELIEVES THE BANK OF ITS LIABILITY TO THE
DEPOSITORS.  SECURITY BANK V. CALIFORNIA, SUPRA, 285, 286.  BUT IF THE
STATUTE IS DEFICIENT IN ITS PROVISIONS FOR NOTICE AND OPPORTUNITY FOR
HEARING SO THAT THE DEPOSITORS WOULD NOT BE BOUND BY ANY PROCEEDINGS
TAKEN UNDER IT, THE BANK WOULD BE ENTITLED TO RAISE THE QUESTION
WHETHER ITS OBLIGATION TO THE DEPOSITORS WOULD BE DISCHARGED BY PAYMENT
OF THE DEPOSITS TO THE STATE.  HENCE OUR INQUIRY MUST BE DIRECTED TO
THE QUESTION WHETHER THE PROCEDURE BY WHICH THE STATE UNDERTAKES TO
ACQUIRE THE DEPOSITORS' RIGHT TO DEMAND PAYMENT OF THE DEPOSITS WAS
UPON ADEQUATE NOTICE TO THEM AND OPPORTUNITY FOR THEM TO BE HEARD. 

AS WE HAVE SAID, THE STATUTE PROVIDES FOR NOTICE TO THE DEPOSITORS BY
REQUIRING THE SHERIFF TO POST ON THE COURT HOUSE DOOR OR BULLETIN BOARD
A COPY OF THE BANK'S REPORT OF DEPOSITS PRESUMED ABANDONED.  WE THINK
THAT THIS, IN CONJUNCTION WITH THE NOTICE PROVIDED BY THE STATUTE
ITSELF AND BY THE TAKING OF POSSESSION OF THE BANK BALANCES BY THE
STATE, IS SUFFICIENT NOTICE TO THE DEPOSITORS TO SATISFY ALL
REQUIREMENTS OF DUE PROCESS. 

THE STATUTE ITSELF IS NOTICE TO ALL DEPOSITORS OF BANKS WITHIN THE
STATE, OF THE CONDITIONS ON WHICH THE BALANCES OF INACTIVE ACCOUNTS
WILL BE DEEMED PRESUMPTIVELY ABANDONED, AND THEIR SURRENDER TO THE
STATE COMPELLED.  ALL PERSONS HAVING PROPERTY LOCATED WITHIN A STATE
AND SUBJECT TO ITS DOMINION MUST TAKE NOTE OF ITS STATUTES AFFECTING
THE CONTROL OR DISPOSITION OF SUCH PROPERTY AND OF THE PROCEDURE WHICH
THEY SET UP FOR THOSE PURPOSES.  REETZ V. MICHIGAN, 188 U.S. 505, 509;
NORTH LARAMIE LAND CO. V. HOFFMAN, 268 U.S. 276, 283.  PROCEEDINGS FOR
THE ASSESSMENT OF TAXES, THE CONDEMNATION OF LAND, THE ESTABLISHMENT OF
HIGHWAYS AND PUBLIC IMPROVEMENTS AFFECTING LAND OWNERS, ARE FAMILIAR
EXAMPLES.  HULING V. KAW VALLEY CO., 130 U.S. 559, 563-564; BALLARD V.
HUNTER, 204 U.S. 241, 254-257, 262. 

THE REPORT OF THE BANK, REQUIRED TO BE POSTED ON THE COURT HOUSE DOOR
OR BULLETIN BOARD, LISTS THE ABANDONED ACCOUNTS AS DEFINED BY THE
STATUTE AND THUS GIVES NOTICE TO THE OWNERS OF ALL THOSE ACCOUNTS
WHICH, BECAUSE OF THEIR INACTIVITY FOR THE PERIODS AND IN THE WAYS
SPECIFIED BY THE STATUTE, ARE DEEMED ABANDONED AND REQUIRED TO BE PAID
TO THE STATE.  THIS NOTICE, WHEN READ IN THE LIGHT OF THE KNOWLEDGE OF
THE STATUTE, WITH WHICH ALL PERSONS HAVING SUCH BANK ACCOUNTS WITHIN
THE STATE ARE CHARGEABLE, IS SUFFICIENT TO ADVISE THAT THE LISTED
ACCOUNTS ARE DEEMED PRESUMPTIVELY ABANDONED AND WILL AT THE END OF SIX
WEEKS FROM THE DATE OF FILING BE PAID OVER TO THE STATE, AND THAT BOTH
BEFORE AND AFTER THAT EVENT THE DEPOSITORS WILL BE AFFORDED OPPORTUNITY
TO PRESENT THEIR CLAIMS AND TO HAVE THEM JUDICIALLY DETERMINED, IF
REJECTED. 

POSTING ON THE COURT HOUSE DOOR AS A METHOD OF GIVING NOTICE OF
PROCEEDINGS AFFECTING PROPERTY WITHIN THE COUNTY, IS AN ANCIENT ONE AND
IS TIME-HONORED IN KENTUCKY.  THE ACT OF THE KENTUCKY LEGISLATURE OF
DECEMBER 19, 1796, PROVIDED IN SEC. 2 FOR THE USE OF THIS METHOD OF
WARNING ABSENT DEFENDANTS IN EQUITY PROCEEDINGS THAT A DECREE WOULD BE
ENTERED AGAINST THEM, IF THEY DID NOT APPEAR.  THIS MEANS OF GIVING
NOTICE WAS EMPLOYED IN THE ESCHEAT STATUTES OF KENTUCKY AT LEAST AS
EARLY AS 1852.  KENTUCKY REVISED STATUTES OF 1852, P. 308, C. 34, ART.
IV, SEC. 3(1).  THE FACT THAT A PROCEDURE IS SO OLD AS TO HAVE BECOME
CUSTOMARY AND WELL KNOWN IN THE COMMUNITY IS OF GREAT WEIGHT IN
DETERMINING WHETHER IT CONFORMS TO DUE PROCESS, FOR "NOT LIGHTLY
VACATED IS THE VERDICT OF QUIESCENT YEARS."  COLER V. CORN EXCHANGE
BANK, 250 N.Y. 136, 141, 164 N.E. 882, AFF'D, SUB NOM. CORN EXCHANGE
BANK V. COLER, SUPRA.  TO THAT EFFECT, SEE OTIS CO. V. LUDLOW MFG. CO.,
201 U.S. 140, 154; OWNBEY V. MORGAN, 256 U.S. 94, 108-109, 112; JACKMAN
V. ROSENBAUM CO., 260 U.S. 22, 31; CORN EXCHANGE BANK V. COLER, SUPRA,
222-223; SNYDER V. MASSACHUSETTS, 291 U.S. 97, 110-111. 

WE CANNOT SAY THAT THE POSTING OF A NOTICE ON THE DOOR OF THE COURT
HOUSE IN A KENTUCKY COUNTY IS A LESS EFFICACIOUS METHOD OF GIVING
NOTICE TO DEPOSITORS IN BANKS OF THE COUNTY THAN PUBLICATION IN A LOCAL
NEWSPAPER, OR THAT IN THE CIRCUMSTANCES OF THIS CASE IT IS AN
INADEQUATE MEANS OF GIVING NOTICE OF THE SUMMARY TAKING INTO CUSTODY OF
THE DESIGNATED BANK ACCOUNTS BY THE STATE.  THIS IS THE MORE SO BECAUSE
IN THIS CASE THE NOTICE IS THE IMMEDIATE PRELUDE TO AND ACCOMPANIES THE
COMPULSORY SURRENDER OF THE BANK BALANCES TO THE STATE, UNLESS THE
DEPOSITORS IN THE MEANTIME INTERVENE AS CLAIMANTS.  THE STATUTORY
PROCEDURE, SO FAR AS IT AFFECTS DEPOSITORS, IS IN THE NATURE OF A
PROCEEDING IN REM, IN THE COURSE OF WHICH PROPERTY, AGAINST WHICH A
CLAIM IS ASSERTED, IS SEIZED OR SEQUESTERED, AND HELD SUBJECT TO THE
APPEARANCE AND PRESENTATION OF CLAIMS BY ALL THOSE WHO ASSERT AN
ADVERSE INTEREST IN IT. IN ALL SUCH PROCEEDINGS THE SEIZURE OF THE
PROPERTY IS IN ITSELF A FORM OF NOTICE OF THE CLAIM ASSERTED, TO THOSE
WHO MAY CLAIM AN INTEREST IN THE PROPERTY.  SEE CORN EXCHANGE BANK V.
COLER, SUPRA, HOLDING CONSTITUTIONAL A STATUTE PROVIDING FOR NO NOTICE
TO THE OWNER OF A BANK DEPOSIT OTHER THAN ITS SEIZURE. 

SECURITY BANK V. CALIFORNIA, SUPRA, WAS A PROCEEDING TO COMPEL THE
BANK TO PAY OVER TO THE STATE INACTIVE BANK ACCOUNTS AS THE FIRST STEP
IN THEIR SEQUESTRATION AND, IF UNCLAIMED, THEIR POSSIBLE ULTIMATE
ESCHEAT.  THE COURT HELD, 263 U.S. AT 289-290, THAT PUBLICATION OF
NOTICE OF THE PROCEEDING IN A NEWSPAPER AT THE STATE CAPITAL WAS
SUFFICIENT NOTICE TO ABSENT DEPOSITORS TO MEET DUE PROCESS
REQUIREMENTS.  IT SUPPORTED THIS CONCLUSION BY REFERENCE TO THE
PROCEEDING AGAINST THE BANK BY WHICH IT WAS REQUIRED TO PAY OVER THE
DEPOSITS TO THE STATE "AS IN PERSONAM SO FAR AS CONCERNS THE BANK; AS
QUASI IN REM SO FAR AS CONCERNS THE DEPOSITORS," 263 U.S. AT P. 287. 
SINCE THE SERVICE OF PROCESS ON THE BANK PERSONALLY WAS EQUIVALENT TO A
SEIZURE OF THE ACCOUNTS, IT WAS DEEMED TO SUPPLEMENT THE PUBLICATION AS
AN INDEPENDENT NOTICE, IN ITSELF, TO THE DEPOSITORS OF THE SEIZURE AND
OF THEIR OPPORTUNITY GIVEN BY THE STATUTE TO APPEAR AND ASSERT THEIR
CLAIMS AGAINST THE STATE. 

LIKE PROCEDURE, BEGUN BY THE SEIZURE OR ACQUISITION OF CONTROL OF A
RES, INCLUDING, IN SOME CASES, CHOSES IN ACTIONS, HAS BEEN SUSTAINED AS
AFFORDING ADEQUATE NOTICE TO ABSENT CLAIMANTS IN ESCHEAT PROCEEDINGS,
HAMILTON V. BROWN, SUPRA; CHRISTIANSON V. KING COUNTY, SUPRA, 373; IN
GARNISHMENT PROCEEDINGS, HARRIS V. BALK, 198 U.S. 215, 223; IN
PROCEEDINGS FOR THE ADMINISTRATION OF A DEBT DUE AN ABSENTEE, CUNNIUS
V. READING SCHOOL DISTRICT, SUPRA; IN PROCEEDINGS BEGUN BY ATTACHMENT,
COOPER V. REYNOLDS, 10 WALL.  308; AND IN ADMIRALTY PROCEEDINGS, THE
MARY, 9 CRANCH 126, 144. 

WE CANNOT SAY, NOR DOES APPELLANT SERIOUSLY URGE, THAT THE LENGTH OF
NOTICE BY POSTING, SIX WEEKS, IS INADEQUATE.  THREE WEEKS NOTICE BY
PUBLICATION OF THE CONDEMNATION OF THE LAND FOR A PUBLIC HIGHWAY WAS
HELD SUFFICIENT BY THIS COURT IN NORTH LARAMIE LAND CO. V. HOFFMAN,
SUPRA; AND THIRTY DAYS WAS DEEMED SUFFICIENT IN A LIKE PROCEEDING IN
HULING V. KAW VALLEY CO., SUPRA. 

WHAT IS DUE PROCESS IN A PROCEDURE AFFECTING PROPERTY INTERESTS MUST
BE DETERMINED BY TAKING INTO ACCOUNT THE PURPOSES OF THE PROCEDURE AND
ITS EFFECT UPON THE RIGHTS ASSERTED AND ALL OTHER CIRCUMSTANCES WHICH
MAY RENDER THE PROCEEDING APPROPRIATE TO THE NATURE OF THE CASE. 
DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 107-108; BALLARD V. HUNTER, SUPRA,
255; NORTH LARAMIE LAND CO. V. HOFFMAN, SUPRA, 282-283; DOHANY V.
ROGERS, SUPRA, 369, AND CASES CITED.  THE FUNDAMENTAL REQUIREMENT OF
DUE PROCESS IS AN OPPORTUNITY TO BE HEARD UPON SUCH NOTICE AND
PROCEEDINGS AS ARE ADEQUATE TO SAFEGUARD THE RIGHT FOR WHICH THE
CONSTITUTIONAL PROTECTION IS INVOKED.  IF THAT IS PRESERVED, THE
DEMANDS OF DUE PROCESS ARE FULFILLED.  MEASURED BY THIS STANDARD, WE
CANNOT SAY THAT THE PRESENT NOTICE IS INSUFFICIENT. 

FOR THIS REASON ALSO IT IS NOT AN INDISPENSABLE REQUIREMENT OF DUE
PROCESS THAT EVERY PROCEDURE AFFECTING THE OWNERSHIP OR DISPOSITION OF
PROPERTY BE EXCLUSIVELY BY JUDICIAL PROCEEDING.  STATUTORY PROCEEDINGS
AFFECTING PROPERTY RIGHTS, WHICH, BY LATER RESORT TO THE COURTS, SECURE
TO ADVERSE PARTIES AN OPPORTUNITY TO BE HEARD, SUITABLE TO THE
OCCASION, DO NOT DENY DUE PROCESS.  FAMILIAR EXAMPLES ARE THE DECISIONS
AND ORDERS OF ADMINISTRATIVE AGENCIES WHICH DETERMINE RIGHTS SUBJECT TO
A SUBSEQUENT JUDICIAL REVIEW.  AND SUCH IS OBVIOUSLY THE CASE HERE,
WHERE THERE IS FULL OPPORTUNITY TO THE DEPOSITORS TO BE HEARD BY THE
STATE COMMISSIONER, WHOSE DECISION IS SUBJECT TO COURT REVIEW.  IT IS
DIFFICULT TO SEE WHAT RIGHT HERE ASSERTED WOULD HAVE BEEN BETTER
PRESERVED BY A COURT PROCEDURE WHOSE END WAS THE COMPULSORY SURRENDER
OF THE DEPOSIT BALANCES BY THE BANK TO THE STATE, WHICH TAKES SUBJECT
TO THE CLAIMS OF THE DEPOSITORS. 

THE MERE FACT THAT THE STATE OR ITS AUTHORITIES ACQUIRE POSSESSION OR
CONTROL OF PROPERTY AS A PRELIMINARY STEP TO THE JUDICIAL DETERMINATION
OF ASSERTED RIGHTS IN THE PROPERTY IS NOT A DENIAL OF DUE PROCESS. 
SAMUELS V. MCCURDY, 267 U.S. 188, 200; NORTH LARAMIE LAND CO. V.
HOFFMAN, SUPRA; CORN EXCHANGE BANK V. COLER, SUPRA; PHILLIPS V.
COMMISSIONER, 283 U.S. 589, 593-601, AND CASES CITED. 

WE CONCLUDE THAT THE PROCEDURAL PROVISIONS OF THE KENTUCKY STATUTE
ARE ADEQUATE TO MEET ALL CONSTITUTIONAL REQUIREMENTS, AND THAT IT DOES
NOT DEPRIVE APPELLANT OR ITS DEPOSITORS OF PROPERTY WITHOUT DUE PROCESS
OF LAW. 

                                 II. 

WE COME NOW TO APPELLANT'S SECOND CONTENTION, THAT THE KENTUCKY
STATUTE INFRINGES THE NATIONAL BANKING LAWS AND UNCONSTITUTIONALLY
INTERFERES WITH APPELLANT AS AN INSTRUMENTALITY OF THE FEDERAL
GOVERNMENT.  BUT THE STATUTE DOES NOT DISCRIMINATE AGAINST NATIONAL
BANKS, CF. MCCULLOCH V. MARYLAND, 4 WHEAT.  316, BY DIRECTING PAYMENT
TO THE STATE BY STATE AND NATIONAL BANKS ALIKE, OF PRESUMPTIVELY
ABANDONED ACCOUNTS.  NOR DO WE FIND ANY WORD IN THE NATIONAL BANKING
LAWS WHICH EXPRESSLY OR BY IMPLICATION CONFLICTS WITH THE PROVISIONS OF
THE KENTUCKY STATUTES.  CF. DAVIS V. ELMIRA SAVINGS BANK, 161 U.S.
275. 

THIS COURT HAS OFTEN POINTED OUT THAT NATIONAL BANKS ARE SUBJECT TO
STATE LAWS, UNLESS THOSE LAWS INFRINGE THE NATIONAL BANKING LAWS OR
IMPOSE AN UNDUE BURDEN ON THE PERFORMANCE OF THE BANKS' FUNCTIONS. 
WAITE V. DOWLEY, 94 U.S. 527, 533; FIRST NATIONAL BANK V. MISSOURI, 263
U.S. 640, 656; LEWIS V. FIDELITY CO., 292 U.S. 559, 566; JENNINGS V.
U.S. FIDELITY & GUARANTY CO., 294 U.S. 216, 219.  THUS THE MERE FACT
THAT THE DEPOSITOR'S ACCOUNT IS IN A NATIONAL BANK DOES NOT RENDER IT
IMMUNE TO ATTACHMENT BY THE CREDITORS OF THE DEPOSITOR, AS AUTHORIZED
BY STATE LAW.  COMPARE EARLE V. PENNSYLVANIA, 178 U.S. 449, WITH VAN
REED V. PEOPLE'S NATIONAL BANK, 198 U.S. 554. 

AS WE HAVE SEEN, A BANK ACCOUNT IS A CHOSE IN ACTION OF THE DEPOSITOR
AGAINST THE BANK, WHICH THE LATTER IS OBLIGATED TO PAY IN ACCORDANCE
WITH THE TERMS OF THE DEPOSIT.  IT IS A PART OF THE MASS OF PROPERTY
WITHIN THE STATE WHOSE TRANSFER AND DEVOLUTION IS SUBJECT TO STATE
CONTROL.  SECURITY BANK V. CALIFORNIA, SUPRA, 285, 286, AND CASES
CITED; IRVING TRUST CO. V. DAY, SUPRA, 562.  IT HAS NEVER BEEN
SUGGESTED THAT NON-DISCRIMINATORY LAWS OF THIS TYPE ARE SO BURDENSOME
AS TO BE INAPPLICABLE TO THE ACCOUNTS OF DEPOSITORS IN NATIONAL BANKS. 

THE STATUTE HERE ATTACKED DOES NOT PURPORT TO DO MORE THAN DOES ANY
OTHER REGULATION OF THE DEVOLUTION OF BANK ACCOUNTS OF MISSING PERSONS,
A FUNCTION WHICH IS, AS WE HAVE SEEN, WITHIN THE COMPETENCE OF THE
STATE.  UNDER THE STATUTE THE STATE MERELY ACQUIRES THE RIGHT TO DEMAND
PAYMENT OF THE ACCOUNTS IN THE PLACE OF THE DEPOSITORS.  UPON PAYMENT
OF THE DEPOSITS TO THE STATE, THE BANK'S OBLIGATION IS DISCHARGED. 
SOMETHING MORE THAN THIS IS REQUIRED TO RENDER THE STATUTE OBNOXIOUS TO
THE FEDERAL BANKING LAWS.  FOR AN INSEPARABLE INCIDENT OF A NATIONAL
BANK'S PRIVILEGE OF RECEIVING DEPOSITS IS ITS OBLIGATION TO PAY THEM TO
THE PERSONS ENTITLED TO DEMAND PAYMENT ACCORDING TO THE LAW OF THE
STATE WHERE IT DOES BUSINESS.  A DEMAND FOR PAYMENT OF AN ACCOUNT BY
ONE ENTITLED TO MAKE THE DEMAND DOES NOT INFRINGE OR INTERFERE WITH ANY
AUTHORIZED FUNCTION OF THE BANK.  IN FACT, INABILITY TO COMPLY WITH
SUCH DEMANDS IS MADE A BASIS IN THE NATIONAL BANKING LAWS FOR CLOSING
THE DOORS OF THE BANK AND WINDING UP ITS AFFAIRS. 

APPELLANT ARGUES THAT IF THE PRESENT ACT IS SUSTAINED, IT WILL OPEN
THE DOOR TO THE EXERTION OF UNLIMITED STATE DISCRETIONARY POWER OVER
THE DEPOSITS IN NATIONAL BANKS, AND THAT THE ACT IMPOSES A BURDEN ON
APPELLANTS SUCH AS WAS HELD TO BE INADMISSIBLE IN FIRST NATIONAL BANK
V. CALIFORNIA, 262 U.S. 366, WHICH WAS FOLLOWED IN NATIONAL CITY BANK
V. PHILIPPINE ISLANDS, 302 U.S. 651.  AS WE HAVE SEEN, THE ONLY POWER
SOUGHT TO BE EXERTED BY THE STATE OVER THE DEPOSITORS' ACCOUNTS IS THE
ASSERTION OF ITS LAWFULLY ACQUIRED RIGHT TO COLLECT THEM, IN ACCORDANCE
WITH THE OBLIGATION, WHICH WAS BOTH ASSUMED BY APPELLANT AND IS TO BE
PERFORMED IN CONFORMITY WITH THE BANKING LAWS OF THE UNITED STATES.  IN
THIS RESPECT THE STATE'S POWER TO MAKE SUCH A DEMAND CANNOT EXTEND
BEYOND ITS POWER UNDER STATE LAW AND THE FEDERAL CONSTITUTION TO
ACQUIRE CONTROL OF DEPOSIT ACCOUNTS FROM THEIR OWNERS.  SO LONG AS IT
IS THUS LIMITED, AND THE POWER IS EXERCISED ONLY TO DEMAND PAYMENT OF
THE ACCOUNTS IN THE SAME WAY AND TO THE SAME EXTENT THAT THE DEPOSITORS
COULD, WE CAN PERCEIVE NO DANGER OF UNLIMITED CONTROL BY THE STATE OVER
THE OPERATIONS OF NATIONAL BANKING INSTITUTIONS.  WE NEED NOT DECIDE
WHETHER, WITHIN THE LIMIT, THE STATE'S POWER OVER DEPOSITS IN NATIONAL
BANKS IS AS SIMPLE AS ITS LIKE POWER OVER DEPOSITS IN STATE BANKS. 
COMPARE FIRST NATIONAL BANK V. CALIFORNIA, SUPRA, WITH SECURITY BANK V.
CALIFORNIA, SUPRA.  WE ARE CONCERNED ONLY WITH THE QUESTION WHETHER THE
PARTICULAR POWER HERE ASSERTED IS A FORBIDDEN ENCROACHMENT UPON THE
PRIVILEGES OF A NATIONAL BANK.    THE DECISION OF THIS COURT IN FIRST
NATIONAL BANK V. CALIFORNIA, SUPRA, DID NOT REST ON ANY WANT OF POWER
OF A STATE TO DEMAND OF A NATIONAL BANK, PAYMENT OF DEPOSITS WHICH THE
STATE WAS LAWFULLY ENTITLED TO RECEIVE.  DECISION THERE TURNED RATHER
ON THE EFFECT OF THE STATE STATUTE IN ALTERING THE CONTRACTS OF DEPOSIT
IN A MANNER CONSIDERED SO UNUSUAL AND SO HARSH IN ITS APPLICATION TO
DEPOSITORS AS TO DETER THEM FROM PLACING OR KEEPING THEIR FUNDS IN
NATIONAL BANKS.  IN THAT CASE THE STATE BROUGHT A STATUTORY PROCEEDING
IN ITS COURTS TO COMPEL A NATIONAL BANK TO PAY OVER TO IT AN INACTIVE
DEPOSIT ACCOUNT.  THE STATUTE REQUIRED "ESCHEAT TO THE STATE" OF ALL
BALANCES IN DEPOSIT ACCOUNTS REMAINING UNCLAIMED AND INACTIVE FOR MORE
THAN TWENTY YEARS, WHERE NEITHER THE DEPOSITOR NOR ANY CLAIMANT HAD
FILED ANY NOTICE WITH THE BANK SHOWING HIS PRESENT ADDRESS.  IT
AUTHORIZED SUIT IN BEHALF OF THE STATE TO RECOVER SUCH AMOUNTS AND
DIRECTED THAT JUDGMENT SHOULD BE GIVEN FOR THE STATE "IF IT BE
DETERMINED THAT THE MONEYS DEPOSITED IN ANY DEFENDANT BANK OR BANKS ARE
UNCLAIMED," FOR THE PERIOD AND IN THE MANNER SPECIFIED BY THE STATUTE. 
IT WILL BE NOTED THAT THE STATUTE REQUIRED NO PROOF THAT THE FORFEITED
ACCOUNTS HAD BEEN IN FACT ABANDONED, OR THAT THEIR OWNERS WERE UNKNOWN
OR HAD DIED WITHOUT HEIRS OR SURVIVING KIN.  UPON MERE PROOF OF
DORMANCY FOR THE PRESCRIBED PERIOD, THE STATUTE DECLARED THE ACCOUNTS
TO BE ESCHEATED TO THE STATE. 

AFTER POINTING OUT THAT THE STATE SUPREME COURT, IN SUSTAINING THE
JUDGMENT IN THE STATE'S FAVOR, HAD DECLINED, AS UNNECESSARY TO ITS
DECISION, TO EXPRESS AN OPINION WHETHER THE ABSENT DEPOSITORS COULD
RECLAIM THEIR FORFEITED DEPOSITS FROM THE STATE, THIS COURT DECLARED
THAT THE STATUTE "ATTEMPTS TO QUALIFY IN AN UNUSUAL WAY AGREEMENTS
BETWEEN NATIONAL BANKS AND THEIR CUSTOMERS LONG UNDERSTOOD TO ARISE
WHEN THE FORMER RECEIVE DEPOSITS UNDER THEIR PLAINLY GRANTED POWERS." 
262 U.S. AT P. 370.  AND SINCE IT WAS THOUGHT THAT SUCH ALTERATIONS
MIGHT BE MADE BY THAT AND OTHER STATES "AND, INSTEAD OF TWENTY YEARS,
VARYING LIMITATIONS MAY BE PRESCRIBED - THREE YEARS PERHAPS, OR FIVE,
OR TEN, OR FIFTEEN," THE COURT DECLARED THAT THE EFFECT ON THE NATIONAL
BANKING SYSTEM WOULD BE INCOMPATIBLE WITH THE STATUTORY PURPOSES OF
ESTABLISHING A SYSTEM OF NATIONAL BANKS ACTING AS FEDERAL
INSTRUMENTALITIES.  THAT EFFECT IT SPECIFICALLY DESCRIBED AS FOLLOWS
(P. 370):  "THE DEPOSITORS OF A NATIONAL BANK OFTEN LIVE IN MANY
DIFFERENT STATES AND COUNTRIES; AND CERTAINLY IT WOULD NOT BE AN
IMMATERIAL THING IF THE DEPOSITS OF ALL WERE SUBJECT TO SEIZURE BY THE
STATE WHERE THE BANK HAPPENED TO BE LOCATED.  THE SUCCESS OF ALMOST ALL
COMMERCIAL BANKS DEPENDS UPON THEIR ABILITY TO OBTAIN LOANS FROM
DEPOSITORS, AND THESE MIGHT WELL HESITATE TO SUBJECT THEIR FUNDS TO
POSSIBLE CONFISCATION." 

THE UNUSUAL ALTERATION OF DEPOSITORS' ACCOUNTS TO WHICH THE COURT
REFERRED WAS PLAINLY THE STATUTORY DECLARATION OF ESCHEAT OF
DEPOSITORS' ACCOUNTS MERELY BECAUSE OF THEIR DORMANCY FOR THE SPECIFIED
PERIOD, WITHOUT ANY DETERMINATION OF ABANDONMENT IN FACT.  THIS IT
TREATED AS IN EFFECT "CONFISCATION" OF DEPOSITORS' ACCOUNTS, OPERATING
AS AN EFFECTIVE DETERRENT TO DEPOSITORS' PLACING THEIR FUNDS IN
NATIONAL BANKS DOING BUSINESS WITHIN THE STATE. 

WE HAVE NO OCCASION TO RECONSIDER THIS DECISION, AS APPELLEES URGE,
FOR THE GROUNDS ASSIGNED FOR IT ARE WHOLLY WANTING HERE.  WHILE THE
SEIZURE AND ESCHEAT OR FORFEITURE FOR MERE DORMANCY OF A NATIONAL BANK
ACCOUNT ARE UNUSUAL, THE ESCHEAT OR APPROPRIATION BY THE STATE OF
PROPERTY IN FACT ABANDONED OR WITHOUT AN OWNER IS, AS WE HAVE SEEN, AS
OLD AS THE COMMON LAW ITSELF.  HERE THERE IS NO ESCHEAT OR FORFEITURE
BY REASON OF DORMANCY.  DORMANCY WITHOUT MORE IS MADE THE STATUTORY
GROUND FOR THE STATE'S TAKING INACTIVE BANK ACCOUNTS INTO ITS CUSTODY,
THE STATE ASSUMING THE BANK'S OBLIGATION TO THE DEPOSITORS.  AND THE
DEPOSITS NEED NOT BE SURRENDERED, IF THE DEPOSITORS OR THE BANK MAKE IT
APPEAR THAT ABANDONMENT HAS NOT OCCURRED.  THIS IS NOT CONFISCATION OR
EVEN AN ATTEMPTED DEPRIVATION OF PROPERTY.  ESCHEAT OR FORFEITURE TO
THE STATE MAY FOLLOW, BUT ONLY ON PROOF OF ABANDONMENT IN FACT.  WE
CANNOT SAY THAT THE PROTECTIVE CUSTODY OF LONG INACTIVE BANK ACCOUNTS,
FOR WHICH THE KENTUCKY STATUTE PROVIDES, AND WHICH IN MANY
CIRCUMSTANCES MAY OPERATE FOR THE BENEFIT AND SECURITY OF DEPOSITORS,
SEE PROVIDENT SAVINGS INSTITUTION V. MALONE, SUPRA, 664, WILL DETER
THEM FROM PLACING THEIR FUNDS IN NATIONAL BANKS IN THAT STATE.  IT
CANNOT BE SAID THAT IT WOULD HAVE THAT EFFECT, MORE THAN WOULD THE TAX
LAWS, THE ATTACHMENT LAWS, OR THE LAWS FOR THE ADMINISTRATION OF
ESTATES OF DECEDENTS OR OF MISSING OR UNKNOWN PERSONS, WHICH A STATE
MAY MAINTAIN AND APPLY TO DEPOSITORS IN NATIONAL BANKS. 

NOR ARE WE ABLE TO DISCERN ANY GREATER OR DIFFERENT EFFECT SO FAR AS
PROSPECTIVE DEPOSITORS IN NATIONAL BANKS ARE CONCERNED, FROM THE
APPLICATION OF THE ANCIENT LAW OF ESCHEAT OR FORFEITURE OF GOODS AS
BONA VACANTIA, TO BANK ACCOUNTS FOUND TO BE WITHOUT AN OWNER, OR TO
HAVE BEEN IN FACT ABANDONED BY THEIR OWNERS.  COMPARE UNITED STATES V.
KLEIN, SUPRA.  TRUE, UNDER THE KENTUCKY STATUTE, AS IN THE CASE OF AN
ATTACHMENT OR THE ADMINISTRATION OF THE ESTATE OF A DECEASED DEPOSITOR,
A CHANGE IN THE DOMINION OVER THE ACCOUNTS WILL ENSUE, TO WHICH THE
BANK MUST RESPOND BY PAYMENT OF THEM ON LAWFUL DEMAND.  BUT THIS, AS WE
HAVE SAID, IS NOTHING MORE THAN PERFORMANCE OF A DUTY BY THE BANK
IMPOSED BY THE FEDERAL BANKING LAWS, AND NOT A DENIAL OF ITS PRIVILEGES
AS A FEDERAL INSTRUMENTALITY.  IN ALL THIS WE CAN PERCEIVE NO DENIAL OF
CONSTITUTIONAL RIGHT AND NO UNLAWFUL ENCROACHMENT ON THE RIGHTS AND
PRIVILEGES OF NATIONAL BANKS. 

SINCE KENTUCKY MAY ENFORCE ITS STATUTE REQUIRING THE SURRENDER TO IT
OF PRESUMPTIVELY ABANDONED ACCOUNTS IN NATIONAL AS WELL AS STATE BANKS,
IT MAY, AS AN APPROPRIATE INCIDENT TO THIS EXERCISE OF AUTHORITY,
REQUIRE THE BANKS TO FILE REPORTS OF INACTIVE ACCOUNTS, AS THE STATUTE
DIRECTS.  WAITE V. DOWLEY, SUPRA; COLORADO BANK V. BEDFORD, 310 U.S.
41, 53.  AFFIRMED. 
..END :








FLOURNOY V. WIENER, 321 U.S. 253 


NO. 252.  ARGUED FEBRUARY 4, 7, 1944.  - DECIDED FEBRUARY 28, 1944.  -
203 LA. 649, 14 SO.2D 475, APPEAL DISMISSED. 


1.  UPON REVIEW OF A DECISION OF A STATE COURT, EITHER ON APPEAL OR ON
CERTIORARI, THIS COURT WILL NOT PASS UPON OR CONSIDER FEDERAL QUESTIONS
NOT ASSIGNED AS ERROR OR DESIGNATED IN THE POINTS TO BE RELIED UPON,
EVEN THOUGH THEY WERE PROPERLY PRESENTED TO AND PASSED UPON BY THE
STATE COURT.  P. 259. 

2.  THE STATE COURT HAVING RESTED ITS DECISION IN THIS CASE UPON (1)
THE INVALIDITY OF THE FEDERAL ACT UNDER THE FIFTH AMENDMENT AND (2) THE
INVALIDITY OF THE STATE ACT UNDER THE FOURTEENTH AMENDMENT, EITHER OF
WHICH GROUNDS WAS ADEQUATE TO SUPPORT THE JUDGMENT; AND THE APPELLANT
HAVING ASSIGNED AS ERROR ONLY THE FIFTH AMENDMENT QUESTION; AND THE
FOURTEENTH AMENDMENT QUESTION NOT HAVING BEEN BRIEFED OR ARGUED BY
EITHER PARTY IN THIS COURT, - HELD THAT, UPON THE RECORD, THIS COURT
WAS WITHOUT JURISDICTION TO DECIDE EITHER QUESTION, AND THE CAUSE MUST
BE DISMISSED FOR WANT OF JURISDICTION.  PP. 258, 261. 

3.  APPELLANT HAVING ASSIGNED AS ERROR THE DECISION OF THE STATE
COURT HOLDING THE FEDERAL ACT INVALID, THE CASE IS PROPERLY AN APPEAL,
AND APPELLANT COULD HAVE INCLUDED IN HIS ASSIGNMENTS OF ERROR ANY OTHER
DENIAL OF FEDERAL RIGHT WHETHER OR NOT CAPABLE IN ITSELF OF BEING
BROUGHT HERE BY APPEAL; OR HE COULD HAVE FILED A PETITION FOR WRIT OF
CERTIORARI IN ADDITION TO HIS APPEAL.  BUT SINCE HE FAILED TO RAISE OR
BRIEF IN THIS COURT ANY QUESTION AS TO THE VALIDITY OF THE STATE
STATUTE UNDER THE FOURTEENTH AMENDMENT, THIS COURT HAS NO JURISDICTION
OF THE CASE EITHER ON CERTIORARI OR ON APPEAL, AND THERE IS NO OCCASION
FOR THE APPLICATION OF JUD.  CODE SEC. 237(C).  P. 263. 

FLOURNOY, SHERIFF AND EX-OFFICIO TAX COLLECTOR, V. WIENER ET AL. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT WHICH HELD UNCONSTITUTIONAL,
AS APPLIED TO THE APPELLEES, A STATE INHERITANCE TAX STATUTE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS CASE COMES HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 344(A), FROM A JUDGMENT OF THE SUPREME COURT OF
LOUISIANA, APPELLANT ASSIGNING AS ERROR THAT THAT COURT HAD HELD
INVALID, AS IN VIOLATION OF THE FIFTH AMENDMENT, SEC. 402(B)(2) OF THE
REVENUE ACT OF 1942, 56 STAT. 942.  ON CONSIDERING THE JURISDICTIONAL
STATEMENT FILED BY APPELLANT PURSUANT TO RULE 12 OF THE RULES OF THIS
COURT, WE POSTPONED DECISION OF THE JURISDICTIONAL QUESTIONS TO THE
ARGUMENT ON THE MERITS. 

COURT FROM A JUDGMENT OF THE HIGHEST COURT OF THE STATE "WHERE IS DRAWN
IN QUESTION" THE VALIDITY OF A STATUTE OF THE UNITED STATES AND THE
DECISION IS AGAINST ITS VALIDITY.  THE ERROR ASSIGNED IS THEREFORE ONE
COGNIZABLE ON APPEAL.  THE QUESTION FOR OUR DECISION IS WHETHER, THE
STATE COURT HAVING RESTED ITS DECISION AND JUDGMENT UPON TWO
INDEPENDENT GROUNDS, EACH ADEQUATE TO SUPPORT THE DECISION BUT ONLY ONE
OF WHICH APPELLANT HAS ASSIGNED AS ERROR ON APPEAL TO THIS COURT, WE
HAVE JURISDICTION TO DECIDE EITHER. 

APPELLEES, CHILDREN AND SOLE LEGATEES OF WIENER, WHO HAD DIED A
RESIDENT OF LOUISIANA, LEAVING HIS WIDOW SURVIVING, BROUGHT THE PRESENT
PROCEEDING IN THE DISTRICT COURT FOR THE FIRST JUDICIAL DISTRICT OF
LOUISIANA TO ESTABLISH THE AMOUNT OF THE STATE INHERITANCE TAX ON THE
INTEREST ACQUIRED BY THEM UNDER THE WILL OF DECEDENT.  UNDER STATE LAW
THEY CANNOT BE PLACED IN POSSESSION OF THE PROPERTY INHERITED BY THEM
UNTIL THEY HAVE PAID THE TAX.  ACT NO. 127 OF THE EXTRA SESSION OF 1921
AS AMENDED BY ACT NO. 44 OF 1922; SEE SEC. 3 OF ACT NO. 119 OF 1932. 
SO FAR AS MATERIAL HERE, THE AMOUNT OF THEIR LIABILITY FOR THE TAX
DEPENDS UPON THE MEANING AND APPLICATION OF ACT NO. 119 OF THE
LOUISIANA ACTS OF 1932, LOUISIANA CODE OF PRACTICE, ARTS. 996.89
996.94, AND OF SEC. 402(B)(2) OF THE REVENUE ACT OF 1942.  ACT NO. 119
DIRECTS THE LEVY, IN ADDITION TO EXISTING INHERITANCE TAXES, OF "AN
ESTATE TRANSFER TAX UPON ALL ESTATES WHICH ARE SUBJECT TO TAXATION
UNDER THE FEDERAL REVENUE ACT OF 1926."  THE ACT PROVIDES THAT WHENEVER
THE AGGREGATE AMOUNT OF ALL INHERITANCE, SUCCESSION, LEGACY AND ESTATE
TAXES ACTUALLY PAID TO THE SEVERAL STATES OF THE UNITED STATES IN
RESPECT TO ANY PROPERTY OWNED BY THE DECEDENT SHALL BE LESS THAN 80% OF
THE ESTATE TAX PAYABLE TO THE UNITED STATES UNDER THE PROVISIONS OF THE
REVENUE ACT OF 1926, THE DIFFERENCE BETWEEN THAT AMOUNT AND 80% SHALL
BE PAID TO LOUISIANA.  FN1 

THE INTERNAL REVENUE CODE, WHICH WAS DERIVED FROM SEC. 302(E) OF THE
REVENUE ACT OF 1926, SO AS TO INCLUDE IN THE GROSS ESTATE OF DECEDENT
FOR PURPOSES OF THE FEDERAL ESTATE TAX, PROPERTY "TO THE EXTENT OF THE
INTEREST THEREIN HELD AS COMMUNITY PROPERTY BY THE DECEDENT AND
SURVIVING SPOUSE UNDER THE LAW OF ANY STATE, TERRITORY, OR POSSESSION
OF THE UNITED STATES, OR ANY FOREIGN COUNTRY, EXCEPT SUCH PART THEREOF
AS MAY BE SHOWN TO HAVE BEEN RECEIVED AS COMPENSATION FOR PERSONAL
SERVICES ACTUALLY RENDERED BY THE SURVIVING SPOUSE OR DERIVED
ORIGINALLY FROM SUCH COMPENSATION OR FROM SEPARATE PROPERTY OF THE
SURVIVING SPOUSE." 

RELYING ON THESE STATUTORY PROVISIONS APPELLANT, WHO IS CHARGED BY
STATE LAW WITH THE DUTY OF COLLECTING THE STATE INHERITANCE TAX, SET UP
BY HIS ANSWER THAT THE STATE OF LOUISIANA IS ENTITLED TO RECOVER AN
INHERITANCE TAX EQUAL TO 80% OF THE BASIC FEDERAL ESTATE TAX, WHICH BY
SEC. 402(B)(2) OF THE REVENUE ACT OF 1942, IS TO BE COMPUTED UPON THE
ENTIRE COMMUNITY, AND PRAYED JUDGMENT AGAINST APPELLEES FOR AN
INHERITANCE TAX SO COMPUTED. 

TO THIS ANSWER APPELLEES INTERPOSED PLEAS THAT THE INHERITANCE TAX
DEMANDED OF THEM, INSOFAR AS IT IS MEASURED BY THE INTEREST OF THE
WIDOW IN THE COMMUNITY, IS UNCONSTITUTIONAL FOR WANT OF THE UNIFORMITY
PRESCRIBED BY SEC. 8 OF ARTICLE I OF THE CONSTITUTION, AND IS A DENIAL
OF DUE PROCESS, IN CONTRAVENTION OF THE FIFTH AMENDMENT, IN THAT IT
TAXES PROPERTY NOT BELONGING TO DECEDENT AND NOT ACQUIRED BY APPELLEES
UNDER THE WILL.  THE DISTRICT COURT SUSTAINED THESE PLEAS ON THE
GROUNDS ASSIGNED AND GAVE JUDGMENT ACCORDINGLY. 

IT WILL BE OBSERVED THAT ALTHOUGH THE FEDERAL ESTATE TAX, LAID ON ALL
THE PROPERTY INCLUDED IN THE TAXABLE ESTATE OF THE DECEDENT, IS PAYABLE
BY THE ESTATE,  FN2  THE EFFECT OF APPELLANT'S CONTENTION IN BOTH STATE
COURTS WAS THAT ACT NO. 119 HAD, BY VIRTUE OF SEC. 402(B)(2) OF THE
REVENUE ACT OF 1942, IMPOSED AN INHERITANCE TAX MEASURED BY THE ENTIRE
COMMUNITY PROPERTY AND HAD AUTHORIZED COLLECTION OF THAT ENTIRE TAX
FROM THE DECEDENT'S LEGATEES.  THE CASE THUS PRESENTED NOT ONLY THE
QUESTION WHETHER A TAX COULD CONSTITUTIONALLY BE IMPOSED ON THE ENTIRE
COMMUNITY PROPERTY ON THE DEATH OF THE HUSBAND, BUT ALSO THE FURTHER
QUESTION, NOT NECESSARILY GOVERNED BY THE FEDERAL ACT, CF. RIGGS V. DEL
DRAGO, 317 U.S. 95, WHETHER THE ENTIRE TAX COULD BE COLLECTED FROM
THOSE WHO INHERIT FROM THE DECEDENT, ALTHOUGH THEY TOOK NO INTEREST IN
THE SHARE OF THE COMMUNITY PROPERTY RETAINED BY THE SURVIVING SPOUSE. 

ON APPEAL TO THE STATE SUPREME COURT THE ATTORNEY GENERAL OF THE
UNITED STATES WAS ALLOWED TO INTERVENE; ON THE ARGUMENT THERE HE URGED
THAT THE VALIDITY OF SEC. 402 OF THE REVENUE ACT OF 1942 WAS NOT IN
QUESTION, BUT THAT THE ONLY ISSUE BEFORE THE COURT WAS THE VALIDITY OF
ACT NO. 119 UNDER THE FOURTEENTH AMENDMENT, IF CONSTRUED AND APPLIED IN
THE MANNER CONTENDED FOR BY APPELLANT.  APPELLEES ACCORDINGLY WERE
ALLOWED TO AMEND THEIR PLEA OF UNCONSTITUTIONALITY SO AS TO PLEAD IN
THE ALTERNATIVE THAT IF ACT NO. 119 WERE CONSTRUED SO AS TO IMPOSE ON
THEM AN INHERITANCE TAX MEASURED BY THE ENTIRE COMMUNITY PROPERTY IT
WOULD VIOLATE THE FOURTEENTH AMENDMENT. 

THE SUPREME COURT OF LOUISIANA AFFIRMED THE JUDGMENT OF THE DISTRICT
COURT BUT FOR DIFFERENT REASONS.  203 LA. 649, 14 SO.2D 475.  IT HELD
THAT "THE CONSTRUCTION SOUGHT TO BE PLACED ON ACT NO. 119 OF 1932 BY
THE TAX COLLECTOR ...  WOULD RENDER IT VIOLATIVE OF THE DUE PROCESS
GUARANTEED BY THE 14TH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES, SINCE SUCH INTERPRETATION WOULD RESULT IN THE IMPOSITION OF A
TAX UPON THOSE SUCCEEDING TO THE ESTATE OF A DECEDENT MEASURED IN PART
BY THE PROPERTY COMPRISING THE ESTATE OF ANOTHER, TO WHICH THE ESTATE
OF THE DECEDENT IS IN NO WAY RELATED."  FOR THIS CONCLUSION IT RELIED
UPON HOEPER V. TAX COMMISSION, 284 U.S. 206, HOLDING THAT A STATE
GRADUATED INCOME TAX MEASURED BY THE JOINT INCOME OF HUSBAND AND WIFE
VIOLATED THE FOURTEENTH AMENDMENT.  IT SAID THAT THE TAX WAS THERE HELD
INVALID BECAUSE "ANY ATTEMPT BY A STATE TO MEASURE THE TAX ON ONE
PERSON'S PROPERTY OR INCOME BY REFERENCE TO THE PROPERTY OR INCOME OF
ANOTHER IS CONTRARY TO DUE PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT." 

THE COURT THUS MADE AN ALTERNATIVE DECISION THAT EITHER ACT NO. 119
DID NOT IMPOSE ON APPELLEES A TAX ON PROPERTY NOT BEQUEATHED TO THEM OR
THAT IF IT DID IT VIOLATED THE FOURTEENTH AMENDMENT.  BUT IT ALSO WENT
ON TO HOLD THAT "THE LIMITATION PLACED UPON THE STATE BY THE FOURTEENTH
AMENDMENT IS LIKEWISE PLACED ON THE FEDERAL GOVERNMENT BY THE FIFTH
AMENDMENT" AND THAT SEC. 402(B) OF THE REVENUE ACT OF 1942, WHICH
APPELLANT, BY INTERPRETATION OF ACT NO. 119, HAD CONTENDED WAS THE
MEASURE OF THE TAX TO BE IMPOSED ON APPELLEES, IS LIKEWISE A VIOLATION
OF THE FIFTH AMENDMENT IF INTERPRETED SO AS TO TAX THE ENTIRE COMMUNITY
PROPERTY HERE. 

APPELLANT, IN HIS ASSIGNMENTS OF ERROR HERE, MADE NO MENTION OF THE
RULING OF THE STATE SUPREME COURT THAT ACT NO. 119, AS CONSTRUED AND
SOUGHT TO BE APPLIED BY HIM, VIOLATES THE FOURTEENTH AMENDMENT.  HE
ASSIGNED AS ERROR THE SUPREME COURT'S DECISION THAT SEC. 402(B)(2) OF
THE REVENUE ACT OF 1942 VIOLATES THE FIFTH AMENDMENT.  HE ALSO ASSERTED
THAT IT HAD ERRED "IN DENYING LEGAL EFFICACY" TO THAT PROVISION OF THE
REVENUE ACT WHICH REQUIRED THE VALUATION OF ALL THE COMMUNITY PROPERTY
OF DECEDENT AND HIS SURVIVING SPOUSE IN THE COMPUTATION OF THE FEDERAL
ESTATE TAX.  BUT IN HIS "STATEMENT OF THE POINTS ON WHICH HE INTENDS TO
RELY," FILED PURSUANT TO PARAGRAPH 9 OF RULE 13 OF THIS COURT, HE
STATED, "THE ONLY ISSUE BEFORE THE COURT, AND THE POINT ON WHICH HE
INTENDS TO RELY IS THAT THE ACT OF CONGRESS HELD BY THE SUPREME COURT
OF LOUISIANA TO BE UNCONSTITUTIONAL, TO-WIT SECTION 402(B)(2) OF THE
REVENUE ACT OF 1942, APPROVED OCTOBER 21, 1942, IS CONSTITUTIONAL AND
THAT THE SUPREME COURT OF LOUISIANA ERRED IN HOLDING SAID STATUTE TO BE
VIOLATIVE OF THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION." 

RULE 9 OF THIS COURT'S RULES REQUIRES THE APPELLANT IN ALL CASES TO
FILE ASSIGNMENTS OF ERROR "WHICH SHALL SET OUT SEPARATELY AND
PARTICULARLY EACH ERROR ASSERTED," AND PARAGRAPH 9 OF RULE 13,
REQUIRING THE STATEMENT OF POINTS TO BE RELIED UPON, PROVIDES THAT "THE
COURT WILL CONSIDER NOTHING BUT THE POINTS OF LAW SO STATED."  SEE ALSO
RULE 27, PAR. 6.  IT IS A FAMILIAR RULE, CONSISTENTLY FOLLOWED, THAT
UPON APPEAL FROM A STATE COURT THIS COURT WILL NOT PASS UPON OR
CONSIDER FEDERAL QUESTIONS NOT ASSIGNED AS ERROR OR DESIGNATED IN THE
POINTS TO BE RELIED UPON EVEN THOUGH PROPERLY PRESENTED TO AND PASSED
UPON BY THE STATE COURT.  O'NEIL V. VERMONT, 144 U.S. 323, 331; NEW
YORK V. KLEINERT, 268 U.S. 646, 651; HERBRING V. LEE, 280 U.S. 111,
117; SEABOARD AIR LINE RY. CO. V. WATSON, 287 U.S. 86, 91; SOUTHERN
PACIFIC CO. V. GALLAGHER, 306 U.S. 167, 172; JONES V. OPELIKA, 316 U.S.
584, 592.  THE RULE IS THE SAME IN THE CASE OF APPLICATIONS FOR
CERTIORARI.  RULE 38, PAR. 2; GENERAL PICTURES CORP. V. WESTERN
ELECTRIC CO., 304 U.S. 175, 179; NATIONAL LICORICE CO. V. LABOR BOARD,
309 U.S. 350, 357. 

THERE IS A SPECIAL REASON WHY THIS PRACTICE SHOULD BE FOLLOWED HERE. 
DOUBTLESS BECAUSE OF APPELLANT'S DISCLAIMER, IN HIS POINTS TO BE RELIED
UPON, OF A PURPOSE TO PRESENT ANY BUT THE FIFTH AMENDMENT QUESTION,
APPELLEES HAVE PROCEEDED ON ARGUMENT AND IN BRIEFS IN THIS COURT ON THE
ASSUMPTION THAT ONLY THE FIFTH AMENDMENT QUESTION WAS BEFORE US.
APPELLANT'S ONLY MENTION OF THE IMPACT OF THE TAX ON APPELLEES IS TO
SAY THAT "THEY HAVE BEEN VICTIMIZED BY THE STATE LAW NOT THE FEDERAL
LAW."  AND HE HAS MADE NO EFFORT TO SUSTAIN THE CONSTITUTIONALITY OF
THE IMPOSITION BY THE STATE OF THE ENTIRE BURDEN OF THE TAX ON
APPELLEES.  THIS IS IMPORTANT BECAUSE ON THE PRESENT RECORD THE TWO
QUESTIONS AS TO THE CONSTITUTIONALITY OF THE STATE AND FEDERAL STATUTES
ARE MATERIALLY DIFFERENT IN POINT OF SUBSTANCE AND IN KIND.  THE FIFTH
AMENDMENT IS RELEVANT ONLY BECAUSE THE FEDERAL TAX ON COMMUNITY
PROPERTY IS MADE THE MEASURE OF THE TAX WHICH LOUISIANA, NOT THE
FEDERAL GOVERNMENT, IMPOSES UPON APPELLEES.  IF THE FEDERAL TAX ON
COMMUNITY PROPERTY INFRINGES THE FIFTH AMENDMENT THEN OBVIOUSLY THAT
PROPERTY IS NOT "SUBJECT TO TAXATION UNDER THE FEDERAL REVENUE ACT" AS
THE LOUISIANA ACT REQUIRES, AND THERE IS WANTING THE TAXABLE SUBJECT
MATTER UPON WHICH THE LOUISIANA STATUTE PURPORTS TO IMPOSE THE TAX,
NAMELY COMMUNITY PROPERTY WHICH IS SUBJECT TO A FEDERAL TAX. 

IT IS NOT THE FEDERAL BUT THE STATE STATUTE WHICH IMPOSES THE TAX ON
APPELLEES, AND THE FOURTEENTH AMENDMENT QUESTION IN THIS CASE IS NOT
MERELY THAT THE STATE STATUTE, LIKE THE FEDERAL STATUTE, IMPOSES THE
TAX ON A SUBJECT MATTER WHICH IS NOT CONSTITUTIONALLY TAXABLE, BUT THAT
THE STATE STATUTE DOES SOMETHING WHICH, AS WE HAVE SEEN, THE FEDERAL
STATUTE DOES NOT DO, NAMELY IMPOSES ON APPELLEES AN INHERITANCE TAX
WHICH INCLUDES IN ITS MEASURE SOME OF THE COMMUNITY PROPERTY WHICH THEY
DO NOT RECEIVE.  AS ALREADY POINTED OUT, THIS WAS THE QUESTION RAISED
BY APPELLEES' SUPPLEMENTAL PLEA OF UNCONSTITUTIONALITY, ALLOWED AND
DECIDED BY THE SUPREME COURT OF LOUISIANA.  BY IT THEY CHALLENGED, AS A
VIOLATION OF THE FOURTEENTH AMENDMENT, THE IMPOSITION ON THEM OF AN
"INHERITANCE TAX" "BASED OR MEASURED UPON THE VALUE OF THE ENTIRE
COMMUNITY."  EVEN THOUGH IT WERE DECIDED THAT THE FEDERAL STATUTE
VALIDLY IMPOSES THE TAX ON DECEDENT'S ESTATE WITH ITS BURDEN
DISTRIBUTED AMONG ALL THOSE ENTITLED TO SHARE IN THE ESTATE AS THE
STATE LAW MAY PROVIDE, SEE RIGGS V. DEL DRAGO, SUPRA, THE QUESTION
WOULD REMAIN FOR DECISION WHETHER THE FOURTEENTH AMENDMENT PERMITS THE
PARTICULAR DISTRIBUTION FOR WHICH APPELLANT CONTENDS, REQUIRING
APPELLEES TO BEAR ALL THE TAX ALTHOUGH THEY SHARE IN ONLY PART OF THE
ESTATE ON WHICH IT IS LAID. 

BUT THIS QUESTION IS NOT BEFORE US BECAUSE APPELLANT, BY HIS
STATEMENT OF POINTS TO BE RELIED ON, HAS AFFIRMATIVELY EXCLUDED IT FROM
CONSIDERATION ON THIS APPEAL AND HAS LIMITED HIMSELF TO THE DIFFERENT
QUESTION ARISING UNDER THE FIFTH AMENDMENT.  IN ANY CASE WE OUGHT NOT
TO CONSIDER IT HERE BECAUSE IN RELIANCE UPON THIS DECLARATION NEITHER
PARTY HAS BRIEFED OR ARGUED IT IN THIS COURT.  RULE 27, PARAGRAPH 6
DECLARES THAT ERRORS NOT URGED IN THE BRIEFS WILL BE DISREGARDED.  AND,
INDEPENDENTLY OF "TECHNICAL" RULES IT IS NOT THE HABIT OF THIS COURT TO
DECIDE IMPORTANT CONSTITUTIONAL QUESTIONS WHICH THE PARTIES HAVE NOT
PRESENTED, BRIEFED OR ARGUED.    IT IS APPARENT THAT THE DECISION OF
THE SINGLE QUESTION ARISING UNDER THE FIFTH AMENDMENT, CANNOT, IN THE
PRESENT STATE OF THE RECORD, BE DISPOSITIVE OF THE CASE.  THE ONLY TAX
HERE SOUGHT TO BE IMPOSED IS THE STATE INHERITANCE TAX AUTHORIZED BY
ACT NO. 119.  THE STATE COURT HAVING HELD THAT THAT ACT IS EITHER
INAPPLICABLE OR, IF APPLICABLE, IS AN INFRINGEMENT OF THE FOURTEENTH
AMENDMENT, ANY RULING WE COULD MAKE AS TO THE VALIDITY OF SEC.
402(B)(2) COULD AFFORD NO BASIS FOR AFFIRMING, MODIFYING OR SETTING
ASIDE THE DECISION OF THE STATE COURT THAT BY REASON OF THE INVALIDITY
OR INAPPLICABILITY OF ACT NO. 119, THE TAX DEMANDED CANNOT BE IMPOSED. 

ANY DETERMINATION WHICH WE MIGHT MAKE OF THE FIFTH AMENDMENT QUESTION
WOULD THUS LEAVE UNAFFECTED THE STATE COURT'S JUDGMENT BROUGHT HERE FOR
REVIEW.  OUR OPINION ON THAT SUBJECT WOULD BE ADVISORY ONLY, SINCE
THERE IS NOTHING BEFORE US ON WHICH WE COULD RENDER A DECISION THAT
WOULD HAVE ANY CONTROLLING EFFECT ON THE RIGHTS OF THE PARTIES.  HENCE
THE CASE STANDS IN THE SAME POSTURE AS THOSE IN WHICH WE HAVE
REPEATEDLY HELD THAT WHERE THE JUDGMENT OF A STATE COURT RESTS IN PART
ON A NON-FEDERAL GROUND ADEQUATE TO SUPPORT IT, THIS COURT WILL NOT
CONSIDER THE CORRECTNESS OF THE DECISION WHICH THE STATE COURT ALSO
MADE OF A FEDERAL QUESTION OTHERWISE REVIEWABLE HERE.  BEREA COLLEGE V.
KENTUCKY, 211 U.S. 45, 53; ENTERPRISE IRRIGATION DIST. V. CANAL CO.,
243 U.S. 157, 163-4; LYNCH V. NEW YORK, 293 U.S. 52, 54-5; FOX FILM
CORP. V. MULLER, 296 U.S. 207, 210-11.  IN SUCH A CASE THIS COURT HAS
SAID THAT IT WILL NOT ENTER "A USELESS AND PROFITLESS REVERSAL" "WHERE
THE SAME JUDGMENT WILL BE RENDERED BY THE COURT BELOW, AFTER THEY HAVE
CORRECTED THE ERROR IN THE FEDERAL QUESTION."  MURDOCK V. CITY OF
MEMPHIS, 20 WALL.  590, 634-5.  COMPARE PUGH V. MCCORMICK, 14 WALL. 
361, 374.  FOR LIKE REASONS WE HAVE REFUSED TO ANSWER QUESTIONS
CERTIFIED TO US BY A LOWER FEDERAL COURT WHERE IT APPEARS THAT THE
ANSWER CANNOT AFFECT THE RESULT, UNITED STATES V. BUZZO, 18 WALL.  125,
129; UNITED STATES V. BRITTON, 108 U.S. 199, 207; LEDERER V. MCGARVEY,
271 U.S. 342, 344.  SEE ALSO THE RULES STATED IN NEW ORLEANS V.
EMSHEIMER, 181 U.S. 153; NEW YORK TELEPHONE CO. V. MALTBIE, 291 U.S.
645; LINDHEIMER V. ILLINOIS TEL. CO., 292 U.S. 151, 176; AND IN
HIRABAYASHI V. UNITED STATES, 320 U.S. 81, 85, AND CASES CITED. 

THE CAUSE IS ACCORDINGLY DISMISSED FOR WANT OF JURISDICTION.  IN THE
VIEW WE TAKE OF THE CASE WE DO NOT REACH THE QUESTION WHETHER THE
APPEAL SHOULD NOT ALSO BE DISMISSED BECAUSE OF DOUBT WHETHER THE
DECISION OF THE LOUISIANA SUPREME COURT AS TO ACT NO. 119 RESTS ON A
HOLDING THAT THE ACT VIOLATES THE FOURTEENTH AMENDMENT, OR MERELY THAT
IT IS INAPPLICABLE AS A MATTER OF CONSTRUCTION OF A STATE STATUTE NOT
REVIEWABLE HERE.  WITH THAT LEFT IN DOUBT, WE COULD NOT SAY THAT THE
DECISION OF THE STATE SUPREME COURT DOES NOT REST ON A NON-FEDERAL
GROUND ADEQUATE TO SUPPORT IT. COMPARE LYNCH V. NEW YORK, SUPRA, 55;
HONEYMAN V. HANAN, 300 U.S. 14; BAKERY & PASTRY DRIVERS LOCAL V. WOHL,
313 U.S. 572; NEW YORK EX REL. ROGALSKI V. MARTIN, 320 U.S. 767, WITH
STATE TAX COMMISSION V. VAN COTT, 306 U.S. 511; MINNESOTA V. NATIONAL
TEA CO., 309 U.S. 551; STANDARD OIL CO. V. JOHNSON, 316 U.S. 481. 

APPELLANT HAVING ASSIGNED AS ERROR THE DECISION OF THE LOUISIANA
SUPREME COURT HOLDING THE FEDERAL ACT INVALID, THE CASE IS PROPERLY AN
APPEAL, AND APPELLANT COULD HAVE INCLUDED IN HIS ASSIGNMENTS OF ERROR
ANY OTHER DENIAL OF FEDERAL RIGHT WHETHER OR NOT CAPABLE IN ITSELF OF
BEING BROUGHT HERE BY APPEAL.  PRUDENTIAL INSURANCE CO. V. CHEEK, 259
U.S. 530, 547.  OR HE COULD HAVE FILED A PETITION FOR WRIT OF
CERTIORARI IN ADDITION TO HIS APPEAL.  COLUMBUS & GREENVILLE RY. CO. V.
MILLER, 283 U.S. 93, 98.  BUT SINCE HE FAILED TO RAISE OR BRIEF IN THIS
COURT ANY QUESTION AS TO THE VALIDITY OF THE LOUISIANA STATUTE UNDER
THE FOURTEENTH AMENDMENT, WE HAVE NO JURISDICTION OF THE CASE EITHER ON
CERTIORARI OR ON APPEAL, AND THERE IS NO OCCASION FOR THE APPLICATION
OF JUDICIAL CODE, SEC. 237(C), 28 U.S.C. SEC. 344(C).  SEE ROBERTSON
AND KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES, P.
40, AND CASES CITED.  DISMISSED. 

FN1  THE PURPOSE OF THE ACT, DECLARED BY SEC. 4, WAS TO SECURE FOR
THE STATE THE BENEFIT OF THE CREDIT ALLOWED BY SEC. 301(B) OF THE
REVENUE ACT OF 1926, 26 U.S.C. SEC. 813(B), WHICH ALLOWED THE TAXPAYER
A CREDIT AGAINST THE ESTATE TAX IMPOSED BY THAT ACT FOR ESTATE,
INHERITANCE OR LEGACY TAXES ACTUALLY PAID TO A STATE OR TERRITORY OR
THE DISTRICT OF COLUMBIA, AND PROVIDED THAT THE TOTAL CREDIT FOR SUCH
TAXES SHOULD NOT EXCEED 80% OF THE FEDERAL ESTATE TAX PAYABLE. 

FN2  THE TAX IS MADE A LIEN ON THE GROSS ESTATE, WHICH INCLUDES THE
ENTIRE COMMUNITY PROPERTY HERE, INTERNAL REVENUE CODE SEC. 827(A), AND
IS A PERSONAL LIABILITY OF THE WIFE TO THE EXTENT OF THE INTEREST
ACQUIRED BY HER, REVENUE ACT OF 1942, SEC. 411. 

MR. JUSTICE FRANKFURTER, WITH WHOM MR. JUSTICE ROBERTS AND MR.
JUSTICE JACKSON CONCUR, DISSENTING: 

IF THIS APPEAL WERE DISMISSED SUMMARILY I SHOULD REMAIN SILENT.  BUT
OPINIONS ON THE JURISDICTION OF THIS COURT MUST SERVE AS GUIDES FOR THE
BAR AS WELL AS FOR ALL OTHER COURTS.  THEREFORE THE REASONS FOR MY
INABILITY TO CONCUR IN THE COURT'S VIEWS, INVOLVING AS THEY DO GENERAL
CONSIDERATIONS, CALL FOR SOMEWHAT DETAILED EXPRESSION. 

1.  THE LAW OF THE JURISDICTION OF THIS COURT RAISES PROBLEMS OF A
HIGHLY TECHNICAL NATURE.  BUT UNDERLYING THEIR SOLUTION ARE MATTERS OF
SUBSTANCE IN THE PRACTICAL WORKING OF OUR DUAL SYSTEM AND IN THE
EFFECTIVE CONDUCT OF THE BUSINESS OF THIS COURT.  WHILE THEREFORE THE
DISPOSITION OF JURISDICTIONAL QUESTIONS INVOLVES SPECIALIZED KNOWLEDGE,
WE ARE NOT DEALING WITH PROBLEMS THE ANSWERS TO WHICH DEPEND ON THE USE
OF TALISMANIC WORDS OR ON THE OBSERVANCE OF RIGID FORMS.  ON NO ONE I
VENTURE TO BELIEVE HAS THE CONVICTION STRONGER HOLD THAN ON ME THAT IT
IS IMPORTANT TO POSTPONE CONSTITUTIONAL ADJUDICATIONS AND THEREFORE
CONSTITUTIONAL CONFLICTS UNTIL THEY ARE JUDICIALLY UNAVOIDABLE, OR TO
KEEP THEM, WHEN UNAVOIDABLE, WITHIN THE STRICT CONFINES OF A SPECIFIC
CASE.  THAT IS WHY WE SHOULD BE UNCOMPROMISING IN OBSERVING THE LIMITS
OF OUR AUTHORITY AND SHOULD AVOID LAXITY IN ASSUMING JURISDICTION.  SEE
49 HARV. L. REV. 68, 90-107.  BUT THE DUTIES OF THIS COURT DO NOT HANG
ON THE THREAD OF MERE VERBALISM. 

2.  WE DO NOT REVIEW A CASE FROM A STATE COURT WHICH CAN BE SUPPORTED
ON A NON-FEDERAL GROUND BECAUSE FEDERAL AUTHORITY OUGHT NOT TO INTRUDE
UPON THE DOMAIN OF THE STATES.  THIS FAR-REACHING POLITICAL
CONSIDERATION WAS DECISIVE EVEN AFTER THE CIVIL WAR IN SETTLING THE
RULE THAT NOT ONLY DO WE NOT REVIEW A CASE FROM A STATE COURT THAT CAN
REST ON A PURELY STATE GROUND, BUT WE DO NOT EVEN REVIEW STATE
QUESTIONS IN A CASE THAT IS PROPERLY HERE FROM A STATE COURT ON A
FEDERAL GROUND.  MURDOCK V. MEMPHIS, 20 WALL.  590. 

3.  THE REQUIREMENT OF ASSIGNMENT OF ERRORS IN ORDER TO INVOKE OUR
REVIEWING POWER RESTS ON A WHOLLY DIFFERENT CONSIDERATION.  "THE
PURPOSE IS TO ENABLE THE COURT AS WELL AS OPPOSING COUNSEL, READILY TO
PERCEIVE WHAT POINTS ARE RELIED ON."  SEABOARD AIR LINE RY. CO. V.
WATSON, 287 U.S. 86, 91.  OF COURSE, WHEN THE ERROR COMPLAINED OF IS A
REJECTION OF A CLAIM OF THE INVALIDITY OF A STATE STATUTE UNDER THE
UNITED STATES CONSTITUTION, THE CLAIM MUST HAVE BEEN EFFECTIVELY
PRESSED BEFORE THE STATE COURT AND REJECTED BY IT.  BUT THE REQUIREMENT
IS NOT FOR SOME ABRACADABRA.  THE NUB OF THE MATTER IS FOUND IN BRYANT
V. ZIMMERMAN, 278 U.S. 63, 67:  "THERE ARE VARIOUS WAYS IN WHICH THE
VALIDITY OF A STATE STATUTE MAY BE DRAWN IN QUESTION ON THE GROUND THAT
IT IS REPUGNANT TO THE CONSTITUTION OF THE UNITED STATES.  NO
PARTICULAR FORM OF WORDS OR PHRASES IS ESSENTIAL, BUT ONLY THAT THE
CLAIM OF INVALIDITY AND THE GROUND THEREFOR BE BROUGHT TO THE ATTENTION
OF THE STATE COURT WITH FAIR PRECISION AND IN DUE TIME.  AND IF THE
RECORD AS A WHOLE SHOWS EITHER EXPRESSLY OR BY CLEAR INTENDMENT THAT
THIS WAS DONE, THE CLAIM IS TO BE REGARDED AS HAVING BEEN ADEQUATELY
PRESENTED." 

4.  THESE GENERAL CONSIDERATIONS BRING US TO THE PARTICULAR CASE. 
ITS REVIEWABILITY HERE IS QUESTIONED ON NUMEROUS GROUNDS.  ANY ONE OF
THEM WOULD BE CONCLUSIVE.  APPARENTLY, HOWEVER, A CLOUD OF
UNREVIEWABILITY IS COMPOUNDED BY INTERMINGLING DOUBTS ON SEVERAL
SCORES.  IF THE JUDGMENT OF THE SUPREME COURT OF LOUISIANA CAN REST ON
A NON-FEDERAL GROUND THERE IS AN END OF THE MATTER.  IF THAT COURT WENT
OFF ON THE CONSTITUTIONALITY OF A FEDERAL STATUTE WHEN THAT STATUTE WAS
NOT DRAWN INTO QUESTION AGAIN THERE IS AN END TO THE MATTER.  IF THE
JUDGMENT IN FACT RESTED ON THE VALIDITY OF A STATE STATUTE URGED TO BE
REPUGNANT TO THE UNITED STATES CONSTITUTION, THE CASE COULD COME HERE
BUT ONLY IF THE CLAIM OF INVALIDITY WAS PROPERLY PRESENTED AND DULY
REJECTED BY THE STATE COURT.  AND EVEN THEN SUCH ERROR COULD BE URGED
HERE ONLY IF BROUGHT BEFORE THIS COURT BY REVEALING ASSIGNMENT OF
ERRORS.  IF THAT REQUIREMENT WERE NOT MET, AGAIN THE APPEAL WOULD CALL
FOR DISMISSAL. 

5.  THIS CONTROVERSY "CONCERNS THE CONSTITUTIONAL VALIDITY OF AN ACT
OF CONGRESS" - SEC. 402(B)(2) OF THE REVENUE ACT OF 1942, 56 STAT. 798,
942 - "WHICH IS DIRECTLY DRAWN IN QUESTION.  THE DECISION DEPENDS UPON
THE DETERMINATION OF THIS ISSUE."  SMITH V. KANSAS CITY TITLE CO., 255
U.S. 180, 201.  THIS IS SO, THAT IS, UNLESS WE WISH TO OVERRULE THE
KANSAS CITY TITLE CASE AS WELL AS THE RECENT UNANIMOUS DECISION IN
STANDARD OIL CO. V. JOHNSON, 316 U.S. 481, AND ADOPT THE DISSENTING
VIEWS OF MR. JUSTICE HOLMES IN THE KANSAS CITY TITLE CASE, SUPRA AT
213.  IN ANY EVENT, HOWEVER, THE DECISION OF THE LOUISIANA SUPREME
COURT CANNOT BE SUPPORTED ON A NON-FEDERAL GROUND AND DOES INVOLVE THE
VALIDITY OF A STATE STATUTE UNDER THE UNITED STATES CONSTITUTION. 
FINALLY THE ASSIGNMENT OF ERRORS, THE ORDER ALLOWING APPEAL AND THE
STATEMENT OF POINTS ON WHICH APPELLANT RELIED SATISFY THE REASONS FOR
OUR RULES 9 AND 13(9).  ALL THREE CONSIDERATIONS ARE INTERTWINED IN THE
DISTINCTIVE CIRCUMSTANCES OF THIS CASE AND THEY ESTABLISH OUR
JURISDICTION, ONCE THE CAUSE OF THIS LITIGATION IS KEPT IN MIND AND OUR
JURISDICTIONAL REQUIREMENTS ARE NOT TURNED INTO FORMALISM "RUN RIOT." 

6.  WHAT THEN WAS IN ISSUE IN THIS LITIGATION AND WHAT ISSUE WAS
DETERMINED IN THE JUDGMENT THAT WAS BROUGHT HERE?  THE TAX COLLECTOR
CLAIMED THAT "THE HEIRS OF SAM WIENER, JR., OWE AN INHERITANCE TAX ON
THE ENTIRE COMMUNITY ESTATE RATHER THAN UPON THE ONE-HALF INTEREST IN
THE COMMUNITY INHERITED BY THEM" FOR THE REASON THAT "BY VIRTUE OF ACT
NO. 119 OF THE LEGISLATURE OF LOUISIANA FOR THE YEAR 1932, THE STATE OF
LOUISIANA IS ULTIMATELY ENTITLED TO RECOVER AN INHERITANCE TAX AGAINST
THIS ESTATE WHICH IS EQUAL TO EIGHTY PER CENT OF THE BASIC FEDERAL TAX
AS FIXED BY THE FEDERAL REVENUE ACT OF 1926," AND THAT 

"CONGRESS IN THE REVENUE ACT OF 1942, (TITLE IV, SEC. 402A, 56
STATUTES 798, TITLE 26, SEC. 811, U.S.C.A.)  PROVIDES THAT THE BASIC
FEDERAL ESTATE TAX IS COMPUTED UPON THE ENTIRE COMMUNITY AND
ACCORDINGLY, THE STATE OF LOUISIANA IS ENTITLED TO AN AMOUNT EQUAL TO
EIGHTY PER CENT OF THE BASIC FEDERAL ESTATE TAX SO CALCULATED."  (R. 8)
THE CLAIM OF THE STATE FOR AN INHERITANCE TAX IN A SUM EQUAL TO 80% OF
THE TAX DUE TO THE FEDERAL GOVERNMENT AS COMPUTED IN PART UNDER SEC.
402(B)(2) WAS THUS BASED ON THE INTERDEPENDENCE BETWEEN THE LOUISIANA
ACT NO. 119 AND SEC. 402(B)(2) OF THE REVENUE ACT OF 1942.  THE LATTER
WAS INCORPORATED BY REFERENCE INTO THE FORMER.  THE TWO BECAME
INSEPARABLE FOR PURPOSES OF CONSTRUCTION - IN A CASE LIKE THE PRESENT A
DECISION INVOLVING ACT NO. 119 INESCAPABLY DEPENDED UPON THE
DETERMINATION OF THE VALIDITY OF SEC. 402(B)(2).  FN1  SUCH WAS THE
ISSUE TENDERED BY THE STATE, AND ISSUE WAS JOINED BY THE APPELLEES'
PLEA OF UNCONSTITUTIONALITY: 

"NOTWITHSTANDING ANYTHING TO THE CONTRARY THAT MAY BE CONTAINED IN
THE FEDERAL REVENUE ACT OF 1942, APPROVED ON OCTOBER 21, 1942, THERE
MAY NOT BE INCLUDED IN THE ESTATE OF THE DECEDENT, SUBJECT TO THE
FEDERAL ESTATE TAX (AND CONSEQUENTLY SUBJECT TO THE PROVISIONS OF THE
STATE INHERITANCE TAX UNDER ACT 119 OF 1932) ANY PROPERTY EXCEPT THAT
WHICH WAS OWNED BY THE DECEDENT AT THE INSTANT OF HIS DEATH, AND BY HIS
DEATH TRANSMITTED TO HIS HEIRS."  (R. 9) 

IN THIS PLEA THE CONSTITUTIONAL INVALIDITY OF THE FEDERAL ACT WAS
CHALLENGED AS FOLLOWS: "SUCH STATUTORY PROVISION IS IN CONTRAVENTION OF
AND VIOLATIVE OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES, IN THAT ITS APPLICATION WOULD DEPRIVE THESE APPEARERS OF THEIR
PROPERTY WITHOUT DUE PROCESS OF LAW BY ITS IMPOSITION OF TAXES UPON
THEM, BASED BOTH UPON AN ARBITRARY INCLUSION IN THE ESTATE OF THE
DECEDENT OF PROPERTY WHICH DID NOT BELONG TO HIM AND UPON THE
APPLICATION THERETO OF GRADUATED RATES BASED UPON VALUES ARRIVED AT BY
REFERENCE TO SUCH OTHER PROPERTY."  (R. 10) 

7.  PUTTING TO ONE SIDE THE CLAIM OF UNCONSTITUTIONALITY OF SEC.
402(B)(2) FOR WANT OF UNIFORMITY, THIS IS THE ISSUE WHICH PERSISTS
THROUGHOUT THE LITIGATION - THE ISSUE ARISING FROM THE CLAIM OF
CONSTITUTIONAL INVALIDITY UNDER THE FIFTH AMENDMENT OF THE METHOD OF
COMPUTING THE FEDERAL ESTATE TAX ACCORDING TO THE AMENDMENT OF 1942
INASMUCH AS THE STATE INHERITANCE TAX IS CONCEDEDLY ASCERTAINED THROUGH
THE ASCERTAINMENT OF THE FEDERAL ESTATE TAX.  THIS WAS THE ISSUE RAISED
BY THE PLEADINGS IN THE FIRST JUDICIAL DISTRICT COURT OF LOUISIANA;
THIS WAS THE ISSUE TENDERED BY THE AGREED STATEMENT OF FACTS BEFORE
THAT COURT (R. 11, PARTICULARLY PAR. 4); THIS WAS THE ISSUE WHICH THAT
COURT DECIDED AGAINST THE STATE BECAUSE IT FOUND A STATUTE OF CONGRESS
"VIOLATIVE OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES IN THAT ITS APPLICATION HERE WOULD DEPRIVE THE HEIRS OF THE
DECEDENT OF THEIR PROPERTY WITHOUT DUE PROCESS OF LAW" (R. 13); THIS
WAS THE ISSUE FORMULATED BY BOTH PARTIES IN THEIR APPEAL TO THE SUPREME
COURT OF LOUISIANA (R. 14, 16); ON THE BASIS OF THIS ISSUE THAT COURT
INVITED THE ATTORNEY GENERAL OF THE UNITED STATES TO APPEAR AS AMICUS
CURIAE.  AFTER THE ATTORNEY GENERAL, SO APPEARING, SUGGESTED FOR THE
FIRST TIME THAT "THE TAX LIABILITY HERE IN ISSUE IS ONLY THAT IMPOSED
BY THE STATE STATUTE," APPELLEES    "WITHOUT IN ANY MANNER CONCEDING
THE CORRECTNESS OF THAT POSITION, BUT ON THE CONTRARY EXPRESSLY
REAFFIRMING THAT THIS CAUSE INVOLVES AND DEPENDS UPON THE
CONSTITUTIONALITY OF THE FEDERAL STATUTE," AMENDED THEIR PLEA OF
UNCONSTITUTIONALITY, WITH THE STATE'S CONSENT, BY ADDING ALSO AN ATTACK
UPON THE VALIDITY OF THE STATE STATUTES "EITHER ALONE OR IN CONJUNCTION
WITH THE FEDERAL STATUTE" (R. 18). 

BY THIS PROCESS THE CASE REACHED THE SUPREME COURT OF LOUISIANA.  NO
ONE CAN READ THAT COURT'S OPINION AND BE LEFT IN ANY DOUBT THAT
LOUISIANA ACT NO. 119 OF 1932 AND SEC. 402(B)(2) OF THE REVENUE ACT OF
1942 WERE TREATED INSEPARABLY AND THE VALIDITY OF THE FORMER MADE TO
DEPEND ON THE FATE OF THE LATTER.  TWO PASSAGES GIVE THE PITH OF THE
OPINION:  "NOW, BECAUSE OF THE CONGRESSIONAL ADOPTION OF SECTION
402(B)(2) OF THE REVENUE ACT, AMENDING SECTION 811(E) OF THE INTERNAL
REVENUE CODE OF 1939, 26 U.S.C.A. INT. REV. CODE SEC. 811(E), THE TAX
COLLECTOR OF CADDO PARISH IS CONTENDING INHERITANCE AND ESTATE TAXES IN
THIS STATE, UNDER ACT NO. 119 OF 1932, MUST BE COMPUTED ON THE BASIS
ESTABLISHED IN THAT SECTION."  "WE ARE ASKED TO PLACE AN INTERPRETATION
ON ACT NO. 119 OF 1932 AND SECTION 402(B)(2) OF THE REVENUE ACT OF 1942
THAT WOULD RESULT IN THE INCLUSION IN THE ESTATE OF THE MANAGING
PARTNER OF AN INTEREST IN THE COMMUNITY PARTNERSHIP TO WHICH HE NEVER
HAD ANY CLAIM AND WHICH WAS, IN FACT, DURING HIS LIFETIME AND IS NOW,
OWNED BY HIS WIFE."  203 LA. 649, 656, 669-70. 

ON THIS SHOWING THE LOWER COURT CONCLUDED THAT SEC. 402(B)(2) OFFENDS
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, AND THEREFORE THE
RELIANCE OF THE STATE UPON SEC. 402(B)(2) AS READ INTO ACT NO. 119 MADE
THE LATTER ACT OFFENSIVE TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. 

8.  THE INVALIDITY, BECAUSE WANTING IN DUE PROCESS, OF SEC. 402(B)(2)
INFUSED INTO ACT NO. 119, IS THE ISSUE THAT RUNS LIKE A SILVER THREAD
UNBROKEN AND UNALLOYED THROUGH THIS LITIGATION AS IT TOOK ITS COURSE
FROM THE FIRST JUDICIAL DISTRICT COURT OF LOUISIANA TO THE STATE
SUPREME COURT AND FROM THERE TO THIS COURT.  THIS MAKES IT ABUNDANTLY
CLEAR WHY THE ERRORS WERE ASSIGNED AS THEY WERE - CLAIMS OF ERROR IN
HOLDING THAT SEC. 402(B)(2) IS UNCONSTITUTIONAL AND IN DENYING "LEGAL
EFFICACY TO THE PROVISIONS OF SECTION 402(B)(2) OF THE FEDERAL REVENUE
ACT OF 1942 AS REQUIRING THE VALUATION OF ALL OF THE COMMUNITY PROPERTY
STANDING IN THE NAME OF THE DECEDENT, SAM WIENER, JR., IN THE
COMPUTATION OF THE FEDERAL BASIC ESTATE TAX; AND, CONSEQUENTLY, IN THE
COMPUTATION OF THE INHERITANCE TAX DUE TO THE STATE OF LOUISIANA WHICH,
UNDER THE STATUTE OF THE STATE, IS REQUIRED TO BE EIGHTY PERCENT OF THE
AMOUNT OF THE FEDERAL BASIC ESTATE TAX."  (R. 32, ASSIGNMENT OF ERRORS,
2.)  BECAUSE SUCH WAS THE ISSUE AND BECAUSE THE JUDGMENT OF THE SUPREME
COURT OF LOUISIANA DETERMINED THAT ISSUE, THE ORDER ALLOWING APPEAL
RECITES THAT "THERE WAS DRAWN IN QUESTION THE VALIDITY OF SECTION
402(B)(2) OF THE FEDERAL REVENUE ACT OF 1942," (R. 33).  SUCH HAVING
BEEN THE ISSUE AND SUCH ITS DETERMINATION, APPELLANT NATURALLY SET IT
FORTH IN HIS STATEMENT OF THE POINTS ON WHICH HE INTENDED TO RELY.  (R.
35) 

9.  IF A FEDERAL CLAIM WAS DRAWN IN QUESTION IN SMITH V. KANSAS CITY
TITLE CO., SUPRA, AND STANDARD OIL CO. V. JOHNSON, SUPRA, IT WAS NOT
LESS DRAWN IN QUESTION IN THIS CASE.  IF THE EARLIER TWO DECISIONS ARE
TO CONTINUE TO STAND, I AM UNABLE TO MAKE A DIFFERENTIATION BETWEEN
THEM AND THE RECORD BEFORE US.  FN2  MUCH IS TO BE SAID FOR THE
REASONING OF MR. JUSTICE HOLMES IN THE KANSAS CITY TITLE CASE IN URGING
THAT THE INCORPORATION OF A FEDERAL ACT INTO A STATE LAW NEVERTHELESS
MAKES THE SUIT, FOR PURPOSES OF OUR JURISDICTION, ONE ARISING UNDER THE
STATE AND NOT UNDER THE FEDERAL LAW.  BUT HIS VIEW WAS REJECTED.  IN
THE RECENT STANDARD OIL CASE WE HAD AN OPPORTUNITY TO ADOPT HIS VIEW
AND REJECT THAT OF THE COURT IN THE KANSAS CITY TITLE CASE.  INSTEAD,
WE UNANIMOUSLY APPLIED THE REASONING OF THE KANSAS CITY TITLE CASE THAT
WHERE A DECISION UNDER STATE LAW NECESSARILY INVOLVES THE CONSTRUCTION
OR VALIDITY OF FEDERAL LAW THE DETERMINATION OF SUCH FEDERAL LAW IN THE
APPLICATION OF STATE LAW GIVES RISE TO A FEDERAL QUESTION FOR REVIEW
HERE. 

10.  IN ANY EVENT THE DECISION BELOW DID NOT GO OFF ON A NON-FEDERAL
GROUND.  IT CANNOT BE SAID OF THIS CASE AS WAS TRUE OF A CASE LIKE FOX
FILM CORP. V. MULLER, 296 U.S. 207, 211, THAT THE CASE "IN EFFECT, WAS
DISPOSED OF BEFORE THE FEDERAL QUESTION SAID TO BE INVOLVED WAS
REACHED.  CHOUTEAU V. GIBSON, 111 U.S. 200; CHAPMAN V. GOODNOW, 123
U.S. 540, 548.  A DECISION OF THAT QUESTION THEN BECAME UNNECESSARY;
AND WHETHER IT WAS DECIDED OR NOT, OUR WANT OF JURISDICTION IS CLEAR." 
WE HAVE SEEN THAT THE ISSUE THAT WAS FRAMED AFTER THE TAX COLLECTOR'S
RETURN TO THE RULE WAS EXCLUSIVELY A QUESTION OF CONSTITUTIONALITY
UNDER THE UNITED STATES CONSTITUTION, AND THE JUDGMENT OF THE TWO STATE
COURTS WAS A DETERMINATION OF THAT ISSUE.  THERE NEVER WAS ANY
SUGGESTION THAT THE CONTROVERSY INVOLVED MERELY A CONSTRUCTION OF THE
STATE LAW EXCEPT A CONSTRUCTION THAT NECESSARILY RAISED A FEDERAL
CONSTITUTIONAL QUESTION.  IT WAS DEEMED TO BE A QUESTION UNDER THE
FIFTH AMENDMENT OF THE CONSTITUTION UNTIL THE ATTORNEY GENERAL OF THE
UNITED STATES SUGGESTED THAT THE FOURTEENTH AMENDMENT WAS AT STAKE. 
BUT EVEN ON THAT ASSUMPTION, THE CASE WAS DECIDED ON A FEDERAL AND NOT
ON A NON-FEDERAL GROUND, NAMELY THE INVALIDITY OF THE STATE'S CLAIM
BECAUSE OF WANT OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.  SINCE,
HOWEVER, THE CLAIM OF INVALIDITY WAS SUSTAINED WE CAN TAKE THE CASE
ONLY ON CERTIORARI.  SEC. 277(B) OF THE JUDICIAL CODE. 

11.  THE QUESTION THEN IS WHETHER THE FEDERAL GROUND WAS ADEQUATELY
ASSIGNED TO SATISFY OUR RULES 9 AND 13(9).  FN3  THIS BRINGS US AGAIN
TO THE RATIONALE OF THESE RULES.  "THE PURPOSE IS TO ENABLE THE COURT
AS WELL AS OPPOSING COUNSEL, READILY TO PERCEIVE WHAT POINTS ARE RELIED
ON."  SEABOARD AIR LINE RY. CO. V. WATSON, 287 U.S. 86, 91.  IS THERE
ANY DOUBT THAT EVERYBODY KNEW WHAT WAS THE ISSUE ON WHICH THE SUPREME
COURT OF LOUISIANA PASSED AND WHAT WAS THE ISSUE ON WHICH THE STATE OF
LOUISIANA AND THE GOVERNMENT DESIRE US TO REVERSE THAT DECISION? 
SEABOARD AIR LINE RY. CO. V. WATSON, SUPRA, ILLUSTRATES THE TRUE
FUNCTIONS OF ASSIGNMENT OF ERRORS AND AFFORDS AN EXAMPLE OF THE KIND OF
SITUATIONS IN WHICH THE RULE COMES INTO OPERATION.  IT IS NOT FAIR TO
THE ADMINISTRATION OF JUSTICE - TO THE WORK OF THIS COURT AND COUNSEL
TAKING PART IN ITS BUSINESS - THAT APPEAL PAPERS HERE SHOULD NOT ENABLE
US TO KNOW CLEARLY AND QUICKLY WHAT IT IS THAT IS COMPLAINED OF AND
THAT WE ARE ASKED TO UNDO: "THE SUBSTITUTION OF VAGUE AND GENERAL
STATEMENT FOR THE PRESCRIBED PARTICULARITY SETS THE RULE AT NAUGHT. 
...  AND AS THE RULE MAKES FOR CONVENIENCE AND CERTAINTY IN THE
CONSIDERATION OF CASES THE COURT MAY, AND GENERALLY IT WILL, DISREGARD
A SPECIFICATION THAT IS SO UNCERTAIN OR OTHERWISE DEFICIENT AS NOT
SUBSTANTIALLY TO COMPLY WITH THE RULE, EVEN IF THE OPPOSING PARTY
RAISES NO QUESTION AND TREATS IT AS ADEQUATE.  THE QUOTED ASSIGNMENT
AMOUNTS MERELY TO A COMPLAINT THAT THE SUPREME COURT ERRED IN NOT
REVERSING THE JUDGMENT OF THE TRIAL COURT BECAUSE 'IN THE TRIAL OF THIS
CASE' THE 'SCOPE AND EFFECT' OF THE SECTION DEPRIVED APPELLANT OF ITS
PROPERTY IN VIOLATION OF BOTH THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES.  AN ALLEGATION OF ERROR COULD SCARCELY BE MORE INDEFINITE.  IT
DOES NOT IDENTIFY ANY RULING AT THE TRIAL OR SPECIFY ANY BASIS FOR THE
ASSERTION OF DEPRIVATION OF CONSTITUTIONAL RIGHT.  IT PRESENTS NO
QUESTION FOR OUR CONSIDERATION."  SEABOARD AIR LINE RY. CO. V. WATSON,
SUPRA AT 91.  IN THIS CASE, UNLIKE THE WATSON CASE, THERE WAS NOT A
"VAGUE AND GENERAL STATEMENT," AN "INDEFINITE" ALLEGATION OF ERROR. 
FROM BEGINNING TO END ALL CONCERNED KNEW THE PRECISE ISSUE THAT THIS
LITIGATION RAISES - WHETHER SEC. 402(B)(2) MEETS THE GUARANTY OF DUE
PROCESS, IN VIEW OF THE DEPENDENCE OF THE STATE ACT UPON THAT FEDERAL
PROVISION.  SURELY WE WOULD HAVE TO TAKE THIS CASE IF LOUISIANA HAD
SPECIFICALLY ASSIGNED AS ERROR THE VIEW THAT THE SUPREME COURT OF
LOUISIANA TOOK OF THE FOURTEENTH AMENDMENT IN RELATION TO TAXING
COMMUNITY PROPERTY.  BUT SINCE, AS THE LOUISIANA SUPREME COURT SAID,
THE ISSUE UNDER THE FOURTEENTH AMENDMENT IS PRECISELY THE SAME IN THIS
SITUATION AS THAT UNDER THE FIFTH AMENDMENT, TO THROW OUT THE CASE
BECAUSE "FOURTEENTH AMENDMENT" WAS NOT WRITTEN IS TO MAKE OUR
JURISDICTION THE SLAVE OF WORDS. 

12.  IF THE DECISION BELOW CAN REALLY BE SAID TO REST ON A NON
FEDERAL GROUND, NO ASSIGNMENT OF ERRORS COULD CURE THE DEFECT.  BUT IT
DOES NOT REST ON A NON-FEDERAL GROUND.  IT RESTS ON A FEDERAL GROUND -
THE FEDERAL GROUND THAT IS WRITTEN ON ALMOST EVERY PAGE OF THE RECORD. 

13.  NOR SHOULD WE AVOID JURISDICTION BY CREATING AN ISSUE WHICH "THE
PARTIES HAVE NOT PRESENTED, BRIEFED OR ARGUED" FOR THE VERY GOOD REASON
THAT IT IS NOT IN THE CASE.  IN BRIEF, IT IS SUGGESTED THAT EVEN
ASSUMING THE TAX ON THE WHOLE COMMUNITY IS VALID, THE QUESTION REMAINS
WHETHER THE APPELLEES AS LEGATEES OF HALF THE COMMUNITY CAN BE MADE TO
BEAR THE WHOLE TAX.  THAT ISSUE IS EXCLUDED FROM THE CASE.  THE AMENDED
PLEA OF UNCONSTITUTIONALITY DID NOT RAISE A NEW ISSUE BUT MERELY GAVE A
NEW LABEL - THE FOURTEENTH AMENDMENT - TO THE ISSUE THEY TENDERED UNDER
THE FIFTH AMENDMENT, DEPENDENCE ON WHICH THEY REAFFIRMED.  FOR THE
APPELLEES, IN THE PETITION TO PROVE THE WILL, HAVE ASSUMED THE FULL
LIABILITY FOR WHATEVER TAXES ARE CONSTITUTIONALLY DUE FROM THE ESTATE. 
WE OUGHT NOT TO CREATE A CONSTITUTIONAL GRIEVANCE WHICH THE PARTIES
THEMSELVES HAVE NEVER ENTERTAINED IN ORDER TO AVOID ADJUDICATION OF THE
ONLY QUESTION WHICH HAS BEEN IN THE CASE FROM THE BEGINNING. 

FN1  SECTION 2 OF ACT NO. 119 OF THE LOUISIANA ACTS OF 1932 PROVIDES
THAT "WHENEVER THE AGGREGATE AMOUNT OF ALL INHERITANCE, SUCCESSION,
LEGACY AND ESTATE TAXES ACTUALLY PAID TO THE SEVERAL STATES OF THE
UNITED STATES IN RESPECT TO ANY PROPERTY OWNED BY SUCH DECEDENT SHALL
BE LESS THAN EIGHTY PER CENT (80%) OF THE ESTATE TAX PAYABLE TO THE
UNITED STATES UNDER THE PROVISIONS OF THE SAID FEDERAL REVENUE ACT OF
1926, BUT NOT OTHERWISE, THE DIFFERENCE BETWEEN SAID AMOUNT AND SAID
EIGHTY PER CENT (80%) SHALL BE PAID TO THE STATE OF LOUISIANA." 

OF THE REVENUE ACT OF 1942, INCLUDES IN THE GROSS ESTATE PROPERTY, "TO
THE EXTENT OF THE INTEREST THEREIN HELD AS COMMUNITY PROPERTY BY THE
DECEDENT AND SURVIVING SPOUSE UNDER THE LAW OF ANY STATE, TERRITORY, OR
POSSESSION OF THE UNITED STATES, OR ANY FOREIGN COUNTRY, EXCEPT SUCH
PART THEREOF AS MAY BE SHOWN TO HAVE BEEN RECEIVED AS COMPENSATION FOR
PERSONAL SERVICES ACTUALLY RENDERED BY THE SURVIVING SPOUSE OR DERIVED
ORIGINALLY FROM SUCH COMPENSATION OR FROM SEPARATE PROPERTY OF THE
SURVIVING SPOUSE.  IN NO CASE SHALL SUCH INTEREST INCLUDED IN THE GROSS
ESTATE OF THE DECEDENT BE LESS THAN THE VALUE OF SUCH PART OF THE
COMMUNITY PROPERTY AS WAS SUBJECT TO THE DECEDENT'S POWER OF
TESTAMENTARY DISPOSITION."  44 STAT. (PART 2) 9, 70; 56 STAT. 798,
942. 

FN2  THE KANSAS CITY TITLE CASE WAS A SUIT BY A MISSOURI SHAREHOLDER
OF A MISSOURI TRUST COMPANY TO ENJOIN THE DIRECTORS FROM BUYING BONDS
OF FEDERAL LAND BANKS AND JOINT STOCK LAND BANKS ON THE THEORY THAT THE
STATUTES AUTHORIZING THE BANKS AND BONDS BEING UNCONSTITUTIONAL, THE
BONDS WERE NOT LAWFUL SECURITIES FOR INVESTMENT PURPOSES.  THE COURT
HELD THAT THIS WAS A STATEMENT OF A CAUSE OF ACTION ARISING UNDER THE
LAWS OF THE UNITED STATES.  THE MEANING OF THE COURT'S HOLDING IS
CLEARLY INDICATED BY THE VIEW WHICH WAS REJECTED.  "THE DEFENDANT IS A
MISSOURI CORPORATION AND THE RIGHT CLAIMED IS THAT OF A STOCKHOLDER TO
PREVENT THE DIRECTORS FROM DOING AN ACT, THAT IS, MAKING AN INVESTMENT,
ALLEGED TO BE CONTRARY TO THEIR DUTY.  BUT THE SCOPE OF THEIR DUTY
DEPENDS UPON THE CHARTER OF THEIR CORPORATION AND OTHER LAWS OF
MISSOURI.  IF THOSE LAWS HAD AUTHORIZED THE INVESTMENT IN TERMS THE
PLAINTIFF WOULD HAVE HAD NO CASE, AND THIS SEEMS TO ME TO MAKE MANIFEST
WHAT I AM UNABLE TO DEEM EVEN DEBATABLE, THAT, AS I HAVE SAID, THE
CAUSE OF ACTION ARISES WHOLLY UNDER MISSOURI LAW.  IF THE MISSOURI LAW
AUTHORIZES OR FORBIDS THE INVESTMENT ACCORDING TO THE DETERMINATION OF
THIS COURT UPON A POINT UNDER THE CONSTITUTION OR ACTS OF CONGRESS,
STILL THAT POINT IS MATERIAL ONLY BECAUSE THE MISSOURI LAW SAW FIT TO
MAKE IT SO."  255 U.S. AT 214. 

IN THE STANDARD OIL CASE, A RULING BY A STATE COURT THAT UNITED
STATES ARMY POST EXCHANGES WERE NOT FEDERAL AGENCIES IN DECIDING THE
APPLICABILITY OF A STATE SALES TAX WHICH DID NOT APPLY TO SALES TO
GOVERNMENT AGENCIES, WAS HELD TO BE A DECISION OF A FEDERAL QUESTION
REVIEWABLE HERE.  "FOR POST EXCHANGES OPERATE UNDER REGULATIONS OF THE
SECRETARY OF WAR PURSUANT TO FEDERAL AUTHORITY.  THESE REGULATIONS AND
THE PRACTICES UNDER THEM ESTABLISH THE RELATIONSHIP BETWEEN THE POST
EXCHANGE AND THE UNITED STATES GOVERNMENT, AND TOGETHER WITH THE
RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS FROM WHICH THEY
DERIVE, AFFORD THE DATA UPON WHICH THE LEGAL STATUS OF THE POST
EXCHANGE MAY BE DETERMINED.  IT WAS UPON A DETERMINATION OF A FEDERAL
QUESTION, THEREFORE, THAT THE SUPREME COURT OF CALIFORNIA RESTED ITS
CONCLUSION THAT, BY SEC. 10, SALES TO POST EXCHANGES WERE NOT EXEMPTED
FROM THE TAX."  316 U.S. AT 483.    FN3  RULE 9:  "WHERE AN APPEAL IS
TAKEN TO THIS COURT FROM ANY COURT, THE APPELLANT SHALL FILE WITH THE
CLERK OF THE COURT BELOW, WITH HIS PETITION FOR APPEAL, AN ASSIGNMENT
OF ERRORS, WHICH SHALL SET OUT SEPARATELY AND PARTICULARLY EACH ERROR
ASSERTED.  NO APPEAL SHALL BE ALLOWED UNLESS SUCH AN ASSIGNMENT OF
ERRORS SHALL ACCOMPANY THE PETITION." 

RULE 13(9):  "WHEN THE RECORD IS FILED, OR WITHIN FIFTEEN DAYS
THEREAFTER, THE APPELLANT SHALL FILE WITH THE CLERK A DEFINITE
STATEMENT OF THE POINTS ON WHICH HE INTENDS TO RELY AND A DESIGNATION
OF THE PARTS OF THE RECORD WHICH HE THINKS NECESSARY FOR THE
CONSIDERATION THEREOF OR A DESIGNATION OF THOSE PARTS CONSIDERED
UNNECESSARY, WHICHEVER IS MORE CONVENIENT, WITH PROOF OF SERVICE OF THE
SAME ON THE ADVERSE PARTY.  ...  THE STATEMENT OF POINTS INTENDED TO BE
RELIED UPON AND THE DESIGNATIONS OF THE PARTS OF THE RECORD TO BE
PRINTED SHALL BE PRINTED BY THE CLERK WITH THE RECORD.  ...  THE COURT
WILL CONSIDER NOTHING BUT THE POINTS OF LAW SO STATED.  ..." 
..END :



GOODYEAR CO. V. RAY-O-VAC CO., 321 U.S. 275 


NO. 262.  ARGUED FEBRUARY 2, 3, 1944.  - DECIDED FEBRUARY 28, 1944.  -
136 F.2D 159, AFFIRMED. 


1.  CONCURRENT FINDINGS OF THE DISTRICT COURT AND THE CIRCUIT COURT OF
APPEALS IN A PATENT INFRINGEMENT SUIT WILL NOT BE SET ASIDE UNLESS
CLEARLY ERRONEOUS.  P. 278. 

2.  ANTHONY PATENT NO. 2,198,423, CLAIMS 1, 2 AND 3, FOR A LEAKPROOF
DRY CELL FOR A FLASHLIGHT BATTERY, HELD VALID AND INFRINGED.  P. 278. 

3.  DEFENSES BASED ON INSUFFICIENCY OF DESCRIPTION OF THE INVENTION
AND ON FILE-WRAPPER ESTOPPEL ARE NOT SUPPORTED BY THE EVIDENCE.  P.
279. 

GOODYEAR TIRE & RUBBER CO., INC. ET AL. V. RAY-O-VAC COMPANY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 320 U.S. 727, TO REVIEW THE AFFIRMANCE OF A DECREE FOR
THE PLAINTIFF (45 F.SUPP.  927) IN A SUIT FOR INFRINGEMENT OF A
PATENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE VALIDITY AND ALLEGED INFRINGEMENT OF THE
ANTHONY PATENT NO. 2,198,423, ISSUED APRIL 23, 1940.  THE DISTRICT
COURT HELD THE PATENT VALID AND INFRINGED  FN1  AND ITS JUDGMENT WAS
AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  FN2 

THE PATENT, A VERY NARROW ONE IN A CROWDED ART, IS FOR A LEAK-PROOF
DRY CELL FOR A FLASHLIGHT BATTERY.  THE CONVENTIONAL DRY CELL EMBODIES
A CUP-LIKE ZINC ELECTRODE ACTING AS A CONTAINER FOR A CENTRAL CARBON
ELECTRODE, ELECTROLYTE, AND DEPOLARIZING MIX.  THE BOTTOM ENCLOSURE IS
THE TERMINAL FOR ONE ELECTRODE, THE TOP ENCLOSURE FOR THE OTHER.  THE
ELECTROLYTE IS A VISCOUS LIQUID COMPOSED OF AMMONIUM CHLORIDE, ZINC
CHLORIDE, WATER AND STARCH.  USE OF THE BATTERY CAUSES EROSION OF THE
ZINC AND EVENTUALLY THE MIXTURE LEAKS THROUGH THE CONTAINER.  A SHORT
CIRCUIT, OR LONG CONTINUOUS USE, CAUSES THE FORMATION OF SOLIDS AS THE
ZINC IS EATEN AWAY.  THE RESULTANT EXPANSION OF THE CELL CONTENTS, DUE
TO THE WEAKNESS OF THE ZINC WALLS, CAUSES BULGING, BREAKING, AND
SEEPAGE.  THE ESCAPING LIQUID TENDS TO INJURE THE METAL WALLS OF THE
FLASHLIGHT CASING. 

DRY CELLS HAVE BEEN USED IN FLASHLIGHTS FOR MANY YEARS.  THE TENDENCY
OF THE CELLS TO DAMAGE FLASHLIGHT CONTAINERS BY LEAKAGE, BULGING, AND
FREEZING IN THE CONTAINER HAD LONG PLAGUED THE INDUSTRY.  SO MUCH SO
THAT MOST MANUFACTURERS ATTACHED WARNING NOTICES TO THEIR FLASHLIGHT
BATTERIES ADVISING USERS NOT TO ALLOW THEM TO REMAIN IN THE FLASHLIGHT
FOR EXTENDED PERIODS OF NON-USE AND TO REMOVE A CELL PROMPTLY UPON
ASCERTAINING THAT IT WAS DEAD. 

NO PATENT IN THE PRIOR ART ADDRESSED ITSELF TO THE PROBLEM OF
PREVENTING BOTH LEAKAGE AND SWELLING IN A DRY CELL.  AT THE TIME OF THE
ANTHONY APPLICATION FLASHLIGHT CELLS WERE COMMONLY ENCASED IN A PAPER
COATING WHICH MIGHT OR MIGHT NOT BE WATERPROOFED, OR IN SOME OTHER
SIMILAR CASING FOR PURPOSES OF INSULATION FROM THE CASE.  IN THE PATENT
IN SUIT ANTHONY CALLS ATTENTION TO THE EXISTING DIFFICULTIES AND STATES
THAT HIS INVENTION IS FOR AN IMPROVED PROTECTIVE CASING WHICH WILL
PREVENT FLUIDS FROM LEAKING OUT OF THE CELL AND CAUSING INJURY TO THE
CASE OR OTHER DRY CELLS WITHIN IT.  HE ALSO ADVERTS TO THE TENDENCY OF
THE CELLS TO SWELL AFTER A CERTAIN TIME AND ASSOCIATES THIS SWELLING
WITH THE LEAKING.  HE STATES THAT THE OBJECT OF HIS INVENTION IS TO
PROTECT THE SIDE WALLS OF THE ZINC CUP BY PROVIDING A STRONG METAL
SHEATH WHICH WILL CLOSELY AND RIGIDLY CONFINE THE CELL TO A GIVEN
LENGTH AND DIAMETER AND, WHILE PROVIDING SUCH A SHEATH, TO INSULATE IT
FROM BOTH TERMINALS SO AS TO RENDER UNNECESSARY THE USE OF AN
INSULATING COVER OR LABEL TO PREVENT THE CELL FROM SHORT-CIRCUITING BY
CONTACT WITH THE SIDE WALLS OF THE CASE.  TO ACCOMPLISH HIS OBJECTS
ANTHONY USED THE ORDINARY TYPE OF DRY CELL HAVING CIRCUIT TERMINALS AT
OPPOSITE ENDS, ONE ELECTRODE BEING A CYLINDRICAL ZINC CUP, THE OTHER A
CENTRALLY PLACED CARBON ELECTRODE, IN ELECTROLYTE AND DEPOLARIZING MIX,
THE BOTTOM CLOSURE AFFORDING A TERMINAL FOR ONE ELECTRODE AND THE TOP
FOR THE OTHER.  AROUND THIS CONVENTIONAL COMBINATION HE PLACED AN
INSULATING MATERIAL AND AN OUTSIDE PROTECTING METAL SHEATH WHICH WOULD
ENCLOSE THE INSULATED SIDE WALLS OF THE ZINC CUP AND TIGHTLY EMBRACE
BOTH UPPER AND LOWER CLOSURES TO PREVENT LEAKAGE. 

THE CLAIMS IN SUIT ARE NOS. 1, 2, AND 3.  IF 1 IS GOOD, 2 AND 3 ARE
ALSO.  WE, THEREFORE, QUOTE 1: 

"A LEAK-IMMUNIZED FLASHLIGHT DRY-CELL PROVIDED WITH CIRCUIT TERMINALS
AT OPPOSITE ENDS, COMPRISING:  A HOLLOW CYLINDRICAL ZINC METAL
ELECTRODE CONTAINING ELECTROLYTE; A CENTRALLY DISPOSED CARBON ELECTRODE
AND DEPOLARIZING-MIX IN SAID ELECTROLYTE; A BOTTOM CLOSURE FOR THE CELL
AFFORDING A TERMINAL FOR ONE OF THE ELECTRODES; A TOP CLOSURE FOR THE
CELL PROVIDED WITH A TERMINAL FOR THE OTHER ELECTRODE, ELECTRICALLY
INSULATED FROM THE FIRST MENTIONED TERMINAL; AND A PROTECTING SHEET
METAL SHEATH INSULATED FROM BOTH OF SAID ELECTRODES AND ENCLOSING THE
SIDE WALLS OF SAID METAL ELECTRODE AND TIGHTLY EMBRACING SAID CLOSURES
SO AS TO PREVENT LEAKAGE OF THE ELECTROLYTE FROM THE UNIT." 

THE DISTRICT JUDGE MADE FINDINGS, WHICH HAVE SUPPORT IN THE EVIDENCE,
TO THE FOLLOWING EFFECT: THAT THE PROBLEM PRESENTED WAS OLD AND NO
SOLUTION WAS ATTAINED PRIOR TO ANTHONY'S INVENTION; THAT THE RESPONDENT
BEGAN MARKETING THE PATENTED CELL IN 1939 AND WAS THE FIRST TO
GUARANTEE ITS PRODUCT AGAINST STICKING IN THE FLASHLIGHT CASE; THAT THE
CELL MET WITH IMMEDIATE COMMERCIAL SUCCESS DUE TO THE ADVANTAGES OF ITS
CONSTRUCTION AND NOT TO EXTENSIVE ADVERTISING; THAT ITS ADVANTAGES WERE
RECOGNIZED BY THE ARMY AND OTHER GOVERNMENTAL AGENCIES AND WERE
DEMONSTRATED BY RELIABLE TESTS.  IN HIS OPINION HE EXAMINED THE PRIOR
ART AND SHOWED THAT NONE OF THE WORKERS IN THE ART HAD MET THE PROBLEMS
OF LEAKAGE AND SWELLING IN THE WAY SUGGESTED BY ANTHONY AND THAT MOST
OF THE CITED PATENTS HAD NOT IN FACT BEEN ADDRESSED TO THESE PROBLEMS. 

WITH RESPECT TO THE CHARGE OF INFRINGEMENT, THE COURT FOUND, ON
SUFFICIENT EVIDENCE:  THAT THE PETITIONERS CONSCIOUSLY COPIED THE
RESPONDENT'S COMMERCIAL CELL, WHICH WAS MADE IN ACCORDANCE WITH THE
CLAIMS OF THE PATENT; THAT THE PETITIONERS' CELL INFRINGED THE CLAIMS
IN SUIT, SINCE THE PETITIONERS' SUBSTITUTIONS OF STRUCTURE AND MATERIAL
WERE NO MORE THAN THE CHOICE OF MECHANICAL ALTERNATIVES AND DID NOT
AVOID THE PRACTICE OF THE PRINCIPLE DISCLOSED BY THE PATENT. 

THE CIRCUIT COURT OF APPEALS REEXAMINED THE FINDINGS IN THE LIGHT OF
THE EVIDENCE AND ACCEPTED THEM.  IT MUST BE A STRONG CASE IN WHICH THIS
COURT WILL SET ASIDE THESE CONCURRENT FINDINGS OF TWO COURTS.  FN3 WE
THINK THIS IS NOT SUCH A CASE. 

VIEWED AFTER THE EVENT, THE MEANS ANTHONY ADOPTED SEEM SIMPLE AND
SUCH AS SHOULD HAVE BEEN OBVIOUS TO THOSE WHO WORKED IN THE FIELD, BUT
THIS IS NOT ENOUGH TO NEGATIVE INVENTION.  FN4 DURING A PERIOD OF HALF
A CENTURY, IN WHICH THE USE OF FLASHLIGHT BATTERIES INCREASED
ENORMOUSLY, AND THE MANUFACTURERS OF FLASHLIGHT CELLS WERE CONSCIOUS OF
THE DEFECTS IN THEM, NO ONE DEVISED A METHOD OF CURING SUCH DEFECTS. 
ONCE THE METHOD WAS DISCOVERED IT COMMENDED ITSELF TO THE PUBLIC AS
EVIDENCED BY MARKED COMMERCIAL SUCCESS.  THESE FACTORS WERE ENTITLED TO
WEIGHT IN DETERMINING WHETHER THE IMPROVEMENT AMOUNTED TO INVENTION AND
SHOULD, IN A CLOSE CASE, TIP THE SCALES IN FAVOR OF PATENTABILITY N5. 
ACCEPTING, AS WE DO, THE FINDINGS BELOW, WE HOLD THE PATENT VALID AND
INFRINGED. 

THE PETITIONERS RENEW HERE CONTENTIONS, BASED ON ASSERTED
INSUFFICIENCY OF DESCRIPTION OF THE INVENTION AND ON ALLEGED FILE
WRAPPER ESTOPPEL, WHICH THE COURTS BELOW OVERRULED.  WE HAVE CONSIDERED
THESE DEFENSES BUT CONCLUDE THAT THE PROOFS DO NOT SUSTAIN THEM. 
DECREE AFFIRMED. 

FN1  45 F.SUPP.  927. 

FN2  136 F.2D 159. 

FN3  WILLIAMS MFG. CO. V. UNITED SHOE MACHINERY CORP., 316 U.S. 364,
367. 

FN4  LOOM COMPANY V. HIGGINS, 105 U.S. 580, 589, 591; THE BARBED WIRE
PATENT, 143 U.S. 275, 277, 283; KREMENTZ V. S. COTTLE CO., 148 U.S.
556; EXPANDED METAL CO. V. BRADFORD, 214 U.S. 366, 381; DIAMOND RUBBER
CO. V. CONSOLIDATED TIRE CO., 220 U.S. 428, 434-435. 

FN5  SMITH V. GOODYEAR DENTAL VULCANITE CO., 93 U.S. 486, 495-6;
MAGOWAN V. NEW YORK BELTING CO., 141 U.S. 332, 343; TOPLIFF V. TOPLIFF,
145 U.S. 156, 163, 164; KEYSTONE MFG. CO. V. ADAMS, 151 U.S. 139, 143;
POTTS V. CREAGER, 155 U.S. 597, 609; MINERALS SEPARATION, LTD. V. HYDE,
242 U.S. 261, 270; SMITH V. SNOW, 294 U.S. 1, 7, 14; PARAMOUNT PUBLIX
CORP. V. TRI-ERGON CORP., 294 U.S. 464, 474. 

MR. JUSTICE BLACK, DISSENTING: 

THOSE WHO STRIVE TO PRODUCE AND DISTRIBUTE GOODS IN A SYSTEM OF FREE
COMPETITIVE ENTERPRISE SHOULD NOT BE HANDICAPPED BY PATENTS BASED ON A
"SHADOW OF A SHADE OF AN IDEA."  ATLANTIC WORKS V. BRADY, 107 U.S. 192,
200.  THE PRACTICE OF GRANTING PATENTS FOR MICROSCOPIC STRUCTURAL OR
MECHANICAL IMPROVEMENTS INEVITABLY MUST REDUCE THE UNITED STATES PATENT
OFFICE TO A MASS PRODUCTION FACTORY FOR UNEARNED SPECIAL PRIVILEGES
WHICH SERVE NO PURPOSE EXCEPT UNFAIRLY TO HARASS THE HONEST PURSUIT OF
BUSINESS.  IF THE PATENTEE HERE HAS "DISCOVERED" ANYTHING, IT IS THAT
THE CREAMY SUBSTANCE IN A DRY CELL WILL NOT LEAK THROUGH A STEEL JACKET
WHICH COVERS AND IS SECURELY FASTENED TO THE ENDS OF THE CELL.  FOR
THAT ALLEGED DISCOVERY THIS PATENT IS TODAY UPHELD.  I DO NOT DENY THAT
SOMEONE, SOMEWHERE, SOMETIME, MADE THE DISCOVERY THAT LIQUIDS WOULD NOT
LEAK THROUGH LEAK-PROOF SOLIDS.  MY TROUBLE IS THAT, DESPITE FINDINGS
TO THE CONTRARY,  FN1  I CANNOT AGREE THAT THIS PATENTEE IS THAT
DISCOVERER.  MY DISAGREEMENT IS NOT BASED SOLELY ON THE NARROW GROUND
THAT THE RECORD SHOWS PREVIOUS PATENTS HAVE BEEN ISSUED TO OTHERS WHO
PUT JACKETS OF METAL AND OTHER SUBSTANCES AROUND DRY CELLS. 
ANTIQUARIANS TELL US THAT THE USE OF SOLID CONTAINERS TO HOLD LIQUIDS
PREDATED THE DAWN OF WRITTEN HISTORY.  THAT THE PROBLEM OF THE QUALITY
AND STRENGTH OF THE WALLS OF SUCH CONTAINERS WAS ONE TO WHICH ANCIENT
PEOPLE TURNED THEIR ATTENTION APPEARS FROM THE WIDESPREAD CURRENCY AT
AN EARLY AGE OF THE MAXIM THAT "NEW WINE SHOULD NOT BE PUT IN OLD
BOTTLES."  IT IS IMPOSSIBLE FOR ME TO BELIEVE THAT CONGRESS INTENDED TO
GRANT MONOPOLY PRIVILEGES TO PERSONS WHO DO NO MORE THAN APPLY
KNOWLEDGE WHICH HAS FOR CENTURIES BEEN THE UNIVERSAL POSSESSION OF ALL
THE EARTH'S PEOPLE - EVEN THOSE OF THE MOST PRIMITIVE CIVILIZATIONS. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY CONCUR IN THIS OPINION. 

FN1  THIS COURT IN 1884 DECLARED THAT "WHETHER THE THING PATENTED
AMOUNTS TO A PATENTABLE INVENTION" IS A QUESTION OF LAW TO BE DECIDED
BY THE COURTS.  MAHN V. HARWOOD, 112 U.S. 354, 358.  ON NUMEROUS
OCCASIONS BOTH BEFORE AND SINCE THAT CASE, THIS COURT HAS INVALIDATED
PATENTS ON THE GROUND THAT THE ALLEGED DISCOVERIES FAILED TO MEASURE UP
TO THE LEGAL STANDARDS FOR INVENTION.  SEE CASES COLLECTED UNITED
STATES SUPREME COURT DIGEST (WEST 1943), PATENTS, VOL. 11, PAR. 16-74. 

MR. JUSTICE JACKSON IS OF OPINION THE JUDGMENT BELOW SHOULD BE
REVERSED FOR THE REASON THAT, INVENTION BEING DOUBTFUL, THE COURT OF
APPEALS RELIED UPON COMMERCIAL SUCCESS OF THE PRODUCT WITHOUT ADEQUATE
FINDINGS OR EVIDENCE AS TO WHETHER SUCH ALLEGED SUCCESS WAS DUE TO THE
PRODUCT OR TO THE PHENOMENAL INCREASE IN DEMAND DUE TO THE WAR AND TO
THE ADVANTAGES OF MARKETING CONTRACTS WITH MAIL-ORDER HOUSES. 
..END :



SECURITY MILLS CO. V. COMM'R, 321 U.S. 281 


NO. 276.  ARGUED FEBRUARY 10, 1944.  - DECIDED FEBRUARY 28, 1944.  - 135
F.2D 165, AFFIRMED. 


1.  THE RULE THAT A TAXPAYER (ON THE ACCRUAL BASIS) MAY NOT ACCRUE AN
EXPENSE THE AMOUNT OF WHICH IS UNSETTLED OR THE LIABILITY FOR WHICH IS
CONTINGENT IS APPLICABLE TO A TAX THE LIABILITY FOR WHICH HE DENIES AND
PAYMENT OF WHICH HE IS CONTESTING.  P. 284. 

2.  IN 1935 A TAXPAYER (ON THE ACCRUAL BASIS) MADE SALES OF FLOUR AT
PRICES WHICH INCLUDED AN AMOUNT SUFFICIENT TO COVER A FEDERAL
PROCESSING TAX.  IN THE SAME YEAR, THE TAXPAYER OBTAINED A TEMPORARY
INJUNCTION AGAINST COLLECTION OF THE TAX, ON CONDITION THAT THE AMOUNT
THEREOF BE DEPOSITED PENDENTE LITE.  IN 1936 THE TAX WAS HELD INVALID
AND THE IMPOUNDED FUNDS WERE RETURNED TO THE TAXPAYER.  HELD THAT
PAYMENTS MADE BY THE TAXPAYER IN 1936, 1937 AND 1938 TO REIMBURSE
CUSTOMERS FOR THE AMOUNT OF THE TAX ON SUCH SALES WERE NOT DEDUCTIBLE
FROM GROSS INCOME FOR 1935.  PP. 283, 285. 

3.  SECTION 43 OF THE REVENUE ACT OF 1934, WHICH REQUIRES THAT
DEDUCTIONS BE TAKEN FOR THE TAXABLE YEAR IN WHICH THE AMOUNT WAS PAID
OR ACCRUED, "UNLESS IN ORDER TO CLEARLY REFLECT INCOME THE DEDUCTIONS
OR CREDITS SHOULD BE TAKEN AS OF A DIFFERENT PERIOD," DOES NOT
AUTHORIZE OR REQUIRE THAT DEDUCTION OF THE PAYMENTS HERE IN QUESTION BE
TAKEN AS OF THE TAXABLE YEAR 1935.  PP. 284, 287. 

SECURITY FLOUR MILLS CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 320 U.S. 724, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 45 B.T.A. 671, WHICH SET ASIDE THE COMMISSIONER'S
DETERMINATION OF A TAX DEFICIENCY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS HAS HELD  FN1  THAT THE BOARD OF TAX
APPEALS ERRED IN DECIDING  FN2 THAT THE PETITIONER WAS ENTITLED, IN
REPORTING ITS INCOME TAX FOR THE YEAR 1935, TO DEDUCT PAYMENTS MADE BY
IT IN 1936, 1937, AND 1938.  BECAUSE OF A CONFLICT OF DECISION  FN3  WE
GRANTED CERTIORARI. 

THE PETITIONER, WHICH CONDUCTS A FLOUR MILL, REPORTS ITS NET INCOME
ON THE ACCRUAL BASIS.  AS A FIRST DOMESTIC PROCESSOR OF WHEAT IT WAS
SUBJECT TO THE PROCESSING TAX LEVIED UNDER THE AGRICULTURAL ADJUSTMENT
ACT OF 1933.  IN THE EARLY MONTHS OF 1935 IT PAID PROCESSING TAXES, AND
CLAIMED, AND WAS ALLOWED, THE AMOUNT SO PAID AS A DEDUCTION FROM GROSS
INCOME IN ITS FEDERAL INCOME TAX RETURN FOR 1935.  THE AMOUNT THUS PAID
IS NOT INVOLVED. 

PETITIONER INSTITUTED A SUIT TO ENJOIN THE COLLECTION OF PROCESSING
TAXES, AND OBTAINED A TEMPORARY INJUNCTION ENJOINING FURTHER COLLECTION
ON THE CONDITION THAT PENDENTE LITE IT FILE INFORMATION RETURNS AND PAY
THE AMOUNT OF THE TAX INTO A DEPOSITORY.  FROM MAY 1 TO DECEMBER 31,
1935 PETITIONER SO PAID $93,000 AND ACCRUED OVER $9,000 ADDITIONAL UPON
ITS BOOKS FOR PROCESSING TAX FOR THE LAST MONTH.  IT ALSO ACCRUED ABOUT
$1,000 AS A RESERVE FOR POSSIBLE INCREASES IN TAXES EARLIER PAID.  ON
JANUARY 6, 1936, THE TAXING PROVISIONS OF THE AGRICULTURAL ADJUSTMENT
ACT WERE HELD UNCONSTITUTIONAL BY THIS COURT.  CERTAIN OF THE
PETITIONER'S VENDEES ATTEMPTED TO INTERVENE IN THE INJUNCTION SUIT AND
TO HAVE IMPOUNDED MONEYS RETURNED TO THEM.  PETITIONER RESISTED AND THE
COURT DENIED THE INTERVENTION AND MADE AN ORDER DIRECTING THE
DEPOSITORY TO PAY TO THE PETITIONER THE IMPOUNDED MONEY, WHICH WAS DONE
FEBRUARY 28, 1936. 

THE PETITIONER SET UP ON ITS BOOKS A SUSPENSE ACCOUNT COVERING THE
ITEMS ABOVE MENTIONED UNDER THE TITLE "RESERVE FOR PROCESSING TAX,
CLAIMS, ETC."  THE PETITIONER REFUNDED VARIOUS SUMS TO ITS CUSTOMERS,
TOTALING OVER $45,000 IN 1936, 1937, AND 1938 TO REIMBURSE CUSTOMERS
FOR PROCESSING TAX INCLUDED IN THE SALES PRICE OF FLOUR SOLD THEM IN
1935 AND NOT PAID TO THE COLLECTOR OF INTERNAL REVENUE AS PROCESSING
TAXES.  IN ITS 1935 TAX RETURN PETITIONER DEDUCTED FROM GROSS INCOME
THE TOTAL OF THE AMOUNTS IMPOUNDED AND ACCRUED BUT NOT PAID THE
COLLECTOR IN THE YEAR 1935 AS ACCRUED TAX LIABILITY.  THE COMMISSIONER
FOUND A DEFICIENCY BY DISALLOWING THE PETITIONER'S DEDUCTION FOR TAXES
ACCRUED BUT NOT PAID IN 1935. 

THE PROPRIETY OF THE CLAIMED DEDUCTION DEPENDS UPON THE CONSTRUCTION
OF SECS. 23(A), 41 AND 43 OF THE REVENUE ACT OF 1934.  FN4  SECTION 23
PERMITS THE DEDUCTION OF ORDINARY AND NECESSARY EXPENSES "PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR
BUSINESS."  SECTION 41 DECLARES THE GENERAL RULE THAT THE TAXPAYER'S
ANNUAL ACCOUNTING PERIOD SHALL BE THE FISCAL YEAR OR CALENDAR YEAR,
DEPENDING UPON THE METHOD OF ACCOUNTING REGULARLY EMPLOYED, PROVIDED
SUCH METHOD CLEARLY REFLECTS INCOME.  SECTION 43, ON WHICH THE
PETITIONER RELIES, PROVIDES: 

"THE DEDUCTIONS AND CREDITS PROVIDED FOR IN THIS TITLE SHALL BE TAKEN
FOR THE TAXABLE YEAR IN WHICH 'PAID OR ACCRUED' OR 'PAID OR INCURRED',
DEPENDENT UPON THE METHOD OF ACCOUNTING UPON THE BASIS OF WHICH THE NET
INCOME IS COMPUTED, UNLESS IN ORDER TO CLEARLY REFLECT THE INCOME THE
DEDUCTIONS OR CREDITS SHOULD BE TAKEN AS OF A DIFFERENT PERIOD.  ..." 

IT IS SETTLED BY MANY DECISIONS THAT A TAXPAYER MAY NOT ACCRUE AN
EXPENSE THE AMOUNT OF WHICH IS UNSETTLED OR THE LIABILITY FOR WHICH IS
CONTINGENT, AND THIS PRINCIPLE IS FULLY APPLICABLE TO A TAX, LIABILITY
FOR WHICH THE TAXPAYER DENIES, AND PAYMENT WHEREOF HE IS CONTESTING. 
FN5  HERE THE PETITIONER, IN FIGURING ITS COSTS AND ITS SALES PRICE TO
CONSUMERS, ADDED THE AMOUNT OF THE PROCESSING TAX, BUT IT COLLECTED ITS
PURCHASE PRICE AS SUCH AND DESIGNATED NO PART OF IT AS REPRESENTING THE
TAX.  THE PETITIONER RECEIVED THE PURCHASE PRICE AS SUCH.  ITS TAX
LIABILITY, IF ANY, TO THE UNITED STATES DID NOT DIFFER FROM OTHER
DEBTS.  SINCE IT DENIED LIABILITY FOR, AND FAILED TO PAY, THE TAX
DURING THE TAXABLE YEAR 1935, IT WAS NOT IN A POSITION IN ITS TAX
ACCOUNTING TO TREAT THE GOVERNMENT'S CLAIM AS AN ACCRUED LIABILITY.  AS
IT ADMITTEDLY RECEIVED THE MONEY IN QUESTION IN 1935 AND COULD NOT
DEDUCT FROM GROSS INCOME AN ACCRUED LIABILITY TO OFFSET IT, THE
RECEIPT, IT WOULD SEEM, MUST CONSTITUTE INCOME FOR THAT YEAR. 

PETITIONER NEVERTHELESS INSISTS THAT SEC. 43 OF THE REVENUE ACT,
WHICH REQUIRES THAT DEDUCTIONS BE TAKEN FOR THE TAXABLE YEAR IN WHICH
THE AMOUNT WAS PAID OR ACCRUED, CREATES AN EXCEPTION APPLICABLE TO THIS
CASE BY ITS CONCLUDING CLAUSE, "UNLESS IN ORDER TO CLEARLY REFLECT THE
INCOME THE DEDUCTIONS OR CREDITS SHOULD BE TAKEN AS OF A DIFFERENT
PERIOD."  IN SHORT, THE PETITIONER'S POSITION IS THAT THE COMMISSIONER
AND THE BOARD OF TAX APPEALS ARE AUTHORIZED AND REQUIRED TO MAKE
EXCEPTIONS TO THE GENERAL RULE OF ACCOUNTING BY ANNUAL PERIODS
WHEREVER, UPON ANALYSIS OF ANY TRANSACTION, IT IS FOUND THAT IT WOULD
BE UNJUST OR UNFAIR NOT TO ISOLATE THE TRANSACTION AND TREAT IT ON THE
BASIS OF THE LONG TERM RESULT.  WE THINK THE POSITION IS NOT
MAINTAINABLE. 

THE REVENUE ACT OF 1921, IN SECS. 214(A)(6) AND 234(A)(4)  FN6
AUTHORIZED THE COMMISSIONER TO ALLOW THE DEDUCTION OF LOSSES IN A YEAR
OTHER THAN THAT IN WHICH SUSTAINED WHEN, IN HIS OPINION, THAT WAS
NECESSARY CLEARLY TO REFLECT INCOME.  THE QUALIFYING CLAUSE OF SEC. 43
WAS FIRST ADDED AS SEC. 200(D) OF THE REVENUE ACT OF 1924.  FN7  THE
REPORTS OF BOTH HOUSE AND SENATE COMMITTEES CONCERNING THIS CHANGE
SAID: 

"THE PROPOSED BILL EXTENDS THAT THEORY TO ALL DEDUCTIONS AND
CREDITS.  THE NECESSITY FOR SUCH A PROVISION ARISES IN CASES IN WHICH A
TAXPAYER PAYS IN ONE YEAR INTEREST OR RENTAL PAYMENTS OR OTHER ITEMS
FOR A PERIOD OF YEARS.  IF HE IS FORCED TO DEDUCT THE AMOUNT IN THE
YEAR IN WHICH PAID, IT MAY RESULT IN A DISTORTION OF HIS INCOME WHICH
WILL CAUSE HIM TO PAY EITHER MORE OR LESS TAXES THAN HE PROPERLY
SHOULD."  FN8 

FROM THESE REPORTS IT IS CLEAR THAT THE PURPOSE OF INSERTING THE
QUALIFYING CLAUSE WAS TO TAKE CARE OF FIXED LIABILITIES PAYABLE IN
FIXED INSTALLMENTS OVER A SERIES OF YEARS.  FOR EXAMPLE, A TENANT WOULD
NOT BE COMPELLED TO ACCRUE, IN THE FIRST YEAR OF A LEASE, THE RENTAL
LIABILITY COVERING THE ENTIRE TERM NOR WOULD HE BE PERMITTED, IF HE SAW
FIT TO PAY ALL THE RENT IN ADVANCE, TO DEDUCT THE WHOLE PAYMENT AS AN
EXPENSE OF THE CURRENT YEAR.  BUT WE THINK IT WAS NOT INTENDED TO UPSET
THE WELL-UNDERSTOOD AND CONSISTENTLY APPLIED DOCTRINE THAT CASH
RECEIPTS OR MATURED ACCOUNTS DUE ON THE ONE HAND, AND CASH PAYMENTS OR
ACCRUED DEFINITE OBLIGATIONS ON THE OTHER, SHOULD NOT BE TAKEN OUT OF
THE ANNUAL ACCOUNTING SYSTEM AND, FOR THE BENEFIT OF THE GOVERNMENT OR
THE TAXPAYER, TREATED ON A BASIS WHICH IS NEITHER A CASH BASIS NOR AN
ACCRUAL BASIS, BECAUSE SO TO DO WOULD, IN A GIVEN INSTANCE, WORK A
SUPPOSEDLY MORE EQUITABLE RESULT TO THE GOVERNMENT OR TO THE TAXPAYER. 

THE QUESTION IS NOT WHETHER THE BOARD, WITHIN ITS DISCRETION, MADE A
DETERMINATION OF FACT.  COMPARE DOBSON V. COMMISSIONER, 320 U.S. 489. 
IT IS RATHER WHETHER, AS MATTER OF LAW, THE BOARD MISCONSTRUED THE
EXTENT OF THE POWER CONFERRED BY THE REVENUE ACT. 

"ALL THE REVENUE ACTS WHICH HAVE BEEN ENACTED SINCE THE ADOPTION OF
THE SIXTEENTH AMENDMENT HAVE UNIFORMLY ASSESSED THE TAX ON THE BASIS OF
ANNUAL RETURNS SHOWING THE NET RESULT OF ALL THE TAXPAYER'S
TRANSACTIONS DURING A FIXED ACCOUNTING PERIOD, EITHER THE CALENDAR
YEAR, OR, AT THE OPTION OF THE TAXPAYER, THE PARTICULAR FISCAL YEAR
WHICH HE MAY ADOPT."  FN9 

THE RATIONALE OF THE SYSTEM IS THIS:  "IT IS THE ESSENCE OF ANY
SYSTEM OF TAXATION THAT IT SHOULD PRODUCE REVENUE ASCERTAINABLE, AND
PAYABLE TO THE GOVERNMENT, AT REGULAR INTERVALS.  ONLY BY SUCH A SYSTEM
IS IT PRACTICABLE TO PRODUCE A REGULAR FLOW OF INCOME AND APPLY METHODS
OF ACCOUNTING, ASSESSMENT, AND COLLECTION CAPABLE OF PRACTICAL
OPERATION."  FN10 

THIS LEGAL PRINCIPLE HAS OFTEN BEEN STATED AND APPLIED.  FN11  THE
UNIFORM RESULT HAS BEEN DENIAL BOTH TO GOVERNMENT AND TO TAXPAYER OF
THE PRIVILEGE OF ALLOCATING INCOME OR OUTGO TO A YEAR OTHER THAN THE
YEAR OF ACTUAL RECEIPT OR PAYMENT, OR, APPLYING THE ACCRUAL BASIS, THE
YEAR IN WHICH THE RIGHT TO RECEIVE, OR THE OBLIGATION TO PAY, HAS
BECOME FINAL AND DEFINITE IN AMOUNT.  FN12 

BUT THE PETITIONER URGES THAT SEC. 43 HAS ALTERED THE RULE SO THAT A
HYBRID SYSTEM, PARTLY ANNUAL AND PARTLY TRANSACTIONAL, MAY, WITHIN
ADMINISTRATIVE DISCRETION, BE SUBSTITUTED FOR THAT OF ANNUAL ACCOUNTING
PERIODS.  IT URGES THAT THE CHANGE WAS DUE TO THE DESIRE OF CONGRESS TO
PREVENT DISTORTION OF TRUE INCOME.  THIS MUST MEAN DISTORTION OF TRUE
INCOME, NOT OF A GIVEN YEAR, BUT, IN THE LIGHT OF ULTIMATE GAIN, FROM A
SERIES OF TRANSACTIONS OVER A PERIOD OF YEARS, GROWING OUT OF, OR IN
SOME WAY RELATED TO, AN INITIAL TRANSACTION IN THE TAXABLE YEAR.  THE
VERY SECTION ON WHICH PETITIONER RELIES, HOWEVER, REITERATES THE
ADHERENCE OF CONGRESS TO THE SYSTEM OF ANNUAL PERIODS OF COMPUTATION. 

AS WE SAID IN DIXIE PINE PRODUCTS CO. V. COMMISSIONER, SUPRA,
REFERRING TO A SECTION IDENTICAL WITH SEC. 43 NOW UNDER CONSIDERATION,
"THE PROVISIONS OF THE REVENUE ACT OF 1936 WORKED NO SIGNIFICANT CHANGE
OVER EARLIER ACTS RESPECTING THE PERMISSIBLE BASIS OF CALCULATING
ANNUAL TAXABLE INCOME." 

WE ARE OF OPINION THAT THE PURPOSE OF THE LANGUAGE WHICH CONGRESS
USED WAS NOT TO SUBSTITUTE, WHENEVER IN THE DISCRETION OF AN
ADMINISTRATIVE OFFICER OR TRIBUNAL SUCH A COURSE WOULD SEEM PROPER, A
DIVIDED AND INCONSISTENT METHOD OF ACCOUNTING NOT PROPERLY TO BE
DENOMINATED EITHER A CASH OR AN ACCRUAL SYSTEM. 

THE JUDGMENT IS AFFIRMED. 

FN1  135 F.2D 165. 

FN2  45 B.T.A. 671. 

FN3  HELVERING V. CANNON VALLEY MILLING CO., 129 F.2D 642. 

FN4  C. 277, 48 STAT. 680, 688, 694. 

FN5  SEE DIXIE PINE PRODUCTS CO. V. COMMISSIONER, 320 U.S. 516, WHERE
THIS RULE OF LAW WAS REAFFIRMED AND APPLIED BY THE BOARD OF TAX
APPEALS, THE FIFTH CIRCUIT COURT OF APPEALS, AND BY THIS COURT, AND
CASES CITED. 

FN6  C. 136, 42 STAT. 227, 240, 255. 

FN7  43 STAT. 253, 254. 

FN8  H. REP. 179, 68TH CONG., 1ST SESS., PP. 10, 11; S. REP. 398,
68TH CONG., 1ST SESS., PP. 10, 11. 

FN9  BURNET V. SANFORD & BROOKS CO., 282 U.S. 359, 363. 

FN10  ID., P. 365. 

FN11  SEE E.G. LUCAS V. OX FIBRE BRUSH CO., 281 U.S. 115, 120; BURNET
V. THOMPSON OIL & GAS CO., 283 U.S. 301, 306; WOOLFORD REALTY CO. V.
ROSE, 286 U.S. 319, 326; TAIT V. WESTERN MARYLAND RY. CO., 289 U.S.
620, 624; BROWN V. HELVERING, 291 U.S. 193; GUARANTY TRUST CO. V.
COMMISSIONER, 303 U.S. 493, 498. 

FN12  SEE THE CASES CITED NOTES 5, 9 AND 11. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON ARE OF OPINION THAT THE
CASE IS GOVERNED BY DOBSON V. COMMISSIONER, 320 U.S. 489, AND THAT THE
JUDGMENT SHOULD, FOR THE REASONS THEREIN STATED, BE REVERSED. 
..END :









STARK V. WICKARD, 321 U.S. 288 


NO. 211.  ARGUED JANUARY 14, 1944.  - DECIDED FEBRUARY 28, 1944.  - 136
F.2D 786, REVERSED. 


1.  UNDER THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, THE
SECRETARY OF AGRICULTURE PROMULGATED AN ORDER REGULATING THE MARKETING
OF MILK IN THE GREATER BOSTON AREA.  THE ORDER PROVIDED FOR FIXING
MINIMUM PRICES TO BE PAID TO PRODUCERS, AND THE PRESCRIBED FORMULA
AUTHORIZED A DEDUCTION FOR CERTAIN PAYMENTS TO COOPERATIVES. 
PRODUCERS, CLAIMING THAT THE SECRETARY, BY THE PROVISIONS FOR PAYMENTS
TO COOPERATIVES, WAS UNLAWFULLY DIVERTING FUNDS WHICH BELONGED TO
PRODUCERS, BROUGHT SUIT IN THE FEDERAL DISTRICT COURT TO ENJOIN THE
SECRETARY FROM CARRYING OUT THE CHALLENGED PROVISIONS OF THE ORDER. 
HELD THAT THE PRODUCERS HAD STANDING TO SUE.  PP. 289, 305. 

2.  ALTHOUGH A JUDICIAL EXAMINATION OF THE VALIDITY OF THE
SECRETARY'S ACTION IS NOT SPECIFICALLY AUTHORIZED BY THE ACT, AUTHORITY
THEREFOR IS FOUND IN THE EXISTENCE OF COURTS AND THE INTENT OF CONGRESS
AS DEDUCED FROM THE STATUTES AND PRECEDENTS.  P. 307. 

3.  UNDER ARTICLE III OF THE CONSTITUTION, CONGRESS ESTABLISHED
COURTS TO ADJUDICATE CASES AND CONTROVERSIES AS TO CLAIMS OF
INFRINGEMENT OF INDIVIDUAL RIGHTS, WHETHER BY UNLAWFUL ACTION OF
PRIVATE PERSONS OR BY THE EXERTION OF UNAUTHORIZED ADMINISTRATIVE
POWER.  P. 310. 

4.  WHETHER THE ALLEGATIONS OF THE COMPLAINT ARE SUSTAINABLE IS NOT
CONSIDERED; THE COURT DETERMINES ONLY THAT THE COMPLAINANTS ARE
ENTITLED TO A JUDICIAL EXAMINATION THEREOF.  P. 311. 

STARK ET AL. V. WICKARD, SECRETARY OF AGRICULTURE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 320 U.S. 723, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT IN A SUIT TO ENJOIN THE SECRETARY OF
AGRICULTURE FROM CARRYING OUT PROVISIONS OF AN ORDER UNDER THE
AGRICULTURAL MARKETING AGREEMENT ACT OF 1937. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CLASS ACTION WAS INSTITUTED IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA, TO PROCURE AN INJUNCTION PROHIBITING THE
RESPONDENT SECRETARY OF AGRICULTURE FROM CARRYING OUT CERTAIN
PROVISIONS OF HIS ORDER NO. 4, EFFECTIVE AUGUST 1, 1941, DEALING WITH
THE MARKETING OF MILK IN THE GREATER BOSTON, MASSACHUSETTS, AREA.  SEE
AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, 50 STAT. 246, 7 U.S.C.
SECS. 601 ET SEQ., AND ORDER 4, UNITED STATES DEPARTMENT OF
AGRICULTURE, SURPLUS MARKETING ADMINISTRATION, TITLE 7, CODE OF FEDERAL
REGULATIONS, PART 904.  THE DISTRICT COURT DISMISSED THE SUIT FOR
FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED, AND ITS
JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA, 136 F.2D 786.  THE RESPONDENT WAR FOOD ADMINISTRATOR WAS
JOINED IN THIS COURT UPON A SHOWING THAT HE HAD BEEN GIVEN POWERS
CONCURRENT WITH THOSE OF THE SECRETARY.  SEE EXECUTIVE ORDER NO. 9334,
FILED APRIL 23, 1943, 8 F.R. 5423, 5425.  WE GRANTED CERTIORARI BECAUSE
OF THE IMPORTANCE OF THE QUESTION TO THE ADMINISTRATION OF THIS ACT. 
320 U.S. 723. 

THE PETITIONERS ARE PRODUCERS OF MILK, WHO ASSERT THAT BY SECS.
904.7(B)(5) AND 904.9 OF HIS ORDER, THE SECRETARY IS UNLAWFULLY
DIVERTING FUNDS THAT BELONG TO THEM.  THE COURTS BELOW DISMISSED THE
ACTION ON THE GROUND THAT THE ACT VESTS NO LEGAL CAUSE OF ACTION IN
MILK PRODUCERS, AND SINCE THE DECISION BELOW AND THE ARGUMENT HERE WERE
LIMITED TO THAT POINT, WE SHALL CONFINE OUR CONSIDERATION TO IT. 

THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HAS A GENERAL EQUITY
JURISDICTION AUTHORIZING IT TO HEAR THE SUIT; FN1  BUT IN ORDER TO
RECOVER, THE PETITIONERS MUST GO FURTHER AND SHOW THAT THE ACT OF THE
SECRETARY AMOUNTS TO AN INTERFERENCE WITH SOME LEGAL RIGHT OF THEIRS. 
FN2  IF SO, THE FAMILIAR PRINCIPLE THAT EXECUTIVE OFFICERS MAY BE
RESTRAINED FROM THREATENED WRONGS IN THE ORDINARY COURTS IN THE ABSENCE
OF SOME EXCLUSIVE ALTERNATIVE REMEDY WILL ENABLE THE PETITIONERS TO
MAINTAIN THEIR SUIT; BUT IF THE COMPLAINT DOES NOT REST UPON A CLAIM OF
WHICH COURTS TAKE COGNIZANCE, THEN IT WAS PROPERLY DISMISSED.  THE
PETITIONERS PLACE THEIR RELIANCE UPON SUCH RIGHTS AS MAY BE EXPRESSLY
OR IMPLIEDLY CREATED BY THE AGRICULTURAL MARKETING AGREEMENT ACT OF
1937 AND THE ORDER ISSUED THEREUNDER. 

ALTHOUGH THIS COURT HAS PREVIOUSLY REVIEWED THE PROVISIONS OF THAT
STATUTE AT LENGTH AND UPHELD ITS CONSTITUTIONALITY,  FN3  SOME FURTHER
REFERENCE TO IT IS NECESSARY TO AN UNDERSTANDING OF THE PRODUCER'S
INTEREST IN THE FUNDS DEALT WITH BY THE ORDER.  FN4 

THE IMMEDIATE OBJECT OF THE ACT IS TO FIX MINIMUM PRICES FOR THE SALE
OF MILK BY PRODUCERS TO HANDLERS.  IT DOES NOT FORBID SALES AT PRICES
ABOVE THE MINIMUM.  IT CONTAINS AN APPROPRIATE DECLARATION OF POLICY,
FN5  AND IT PROVIDES THAT THE SECRETARY OF AGRICULTURE SHALL HOLD A
HEARING WHEN HE HAS REASON TO BELIEVE THAT A MARKETING ORDER WOULD TEND
TO EFFECTUATE THE PURPOSES OF THE ACT.  FN6  IF HE FINDS THAT AN ORDER
WOULD BE IN ACCORDANCE WITH THE DECLARED POLICY, HE MUST THEN ISSUE IT.
FN7  SECTIONS 8C (5) AND 8C (7) ENUMERATE THE PROVISIONS THAT THE
ORDER MAY CONTAIN.  SECTION 8C (5)(A) AUTHORIZES THE SECRETARY TO
CLASSIFY MILK IN ACCORDANCE WITH THE FORM OR PURPOSE OF ITS USE, AND TO
FIX MINIMUM PRICES FOR EACH CLASSIFICATION.  THESE MINIMA ARE THE USE
VALUE OF THE MILK.  THIS METHOD OF FIXING PRICES WAS ADOPTED BECAUSE
THE ECONOMIC VALUE OF MILK DEPENDS UPON THE PARTICULAR USE MADE OF IT.
FN8  IT IS APPARENT THAT SERIOUS INEQUITIES AS AMONG PRODUCERS MIGHT
ARISE IF THE PRICES EACH RECEIVED DEPENDED UPON THE USE THE HANDLER
MIGHT HAPPEN TO MAKE OF HIS MILK; ACCORDINGLY, SEC. 8C (5)(B)
AUTHORIZES PROVISION TO BE MADE FOR THE PAYMENT TO PRODUCERS OF A
UNIFORM PRICE  FN9  FOR THE MILK DELIVERED IRRESPECTIVE OF THE USE TO
WHICH THE MILK IS PUT BY THE INDIVIDUAL HANDLER.  SECTION 8C (5)(C)
AUTHORIZES THE SECRETARY TO SET UP THE NECESSARY MACHINERY TO
ACCOMPLISH THESE PURPOSES. 

BY ORDER NO. 4,  FN10  THE SECRETARY OF AGRICULTURE DID FIX MINIMUM
PRICES FOR EACH CLASS OF MILK AND REQUIRED EACH HANDLER IN THE BOSTON
AREA TO PAY NOT LESS THAN THOSE MINIMA TO PRODUCERS, 7 C.F.R. 1941
SUPP., SEC. 904.4, LESS SPECIFIED DEDUCTIONS.  SECS. 904.7(B), 904.8. 
IN ADDITION, THE ORDER EXERCISED THE AUTHORITY GRANTED BY THE STATUTE
TO REQUIRE THE USE OF A WEIGHTED AVERAGE IN REACHING THE UNIFORM PRICE
TO BE PAID PRODUCERS, AS DESCRIBED IN THE PRECEDING PARAGRAPH.  SECS.
904.7, 904.8. 

UNDER THE ORDER, THE HANDLER DOES NOT MAKE FINAL SETTLEMENT WITH THE
PRODUCER UNTIL THE BLENDED PRICE  FN11 HAS BEEN SET, ALTHOUGH HE MUST
MAKE A PART PAYMENT ON OR BEFORE THE TENTH OF EACH MONTH.  SEC. 904.8. 
BUT WITHIN EIGHT DAYS AFTER THE END OF EACH CALENDAR MONTH - THE SO
CALLED "DELIVERY PERIOD," SEC. 904.1(9) - THE HANDLER MUST REPORT HIS
SALES AND DELIVERIES, CLASSIFIED BY USE VALUE, SEC. 904.5, TO A "MARKET
ADMINISTRATOR."  SEC. 904.1(8).  ON THE BASIS OF THESE REPORTS, THE
ADMINISTRATOR COMPUTES THE BLENDED PRICE AND ANNOUNCES IT ON THE
TWELFTH DAY FOLLOWING THE END OF THE DELIVERY PERIOD.  SEC. 904.7(B). 
ON THE TWENTY-FIFTH DAY, THE HANDLERS ARE REQUIRED TO PAY THE BALANCE
DUE OF THE BLENDED PRICE SO FIXED TO THE PRODUCERS.  SEC. 904.8(B). 

WERE NO ADMINISTRATIVE DEDUCTIONS NECESSARY, THE BLENDED PRICE PER
HUNDREDWEIGHT OF MILK COULD READILY BE DETERMINED BY DIVIDING THE TOTAL
VALUE OF THE MILK USED IN THE MARKETING AREA AT THE MINIMUM PRICES FOR
EACH CLASSIFICATION BY THE NUMBER OF HUNDREDWEIGHT OF RAW MILK USED IN
THE AREA.  FN12  HOWEVER, THE ORDER REQUIRES SEVERAL ADJUSTMENTS FOR
PURPOSES ADMITTEDLY AUTHORIZED BY STATUTE, SO THAT THE DETERMINATION OF
THE BLENDED PRICE AS ACTUALLY MADE IS DRAWN FROM THE TOTAL USE VALUE
LESS A SUM WHICH THE ADMINISTRATOR IS DIRECTED TO RETAIN TO MEET
VARIOUS INCIDENTAL ADJUSTMENTS.  FN13  IN PRACTICE, EACH HANDLER
DISCHARGES HIS OBLIGATION TO THE PRODUCERS OF WHOM HE BOUGHT MILK BY
MAKING TWO PAYMENTS:  ONE PAYMENT, THE BLENDED PRICE, IS APPORTIONED
FROM THE VALUES AT THE MINIMUM PRICE FOR THE RESPECTIVE CLASSES LESS
ADMINISTRATIVE DEDUCTIONS AND IS MADE TO THE PRODUCER HIMSELF; FN14
THE OTHER PAYMENT IS EQUAL TO THESE DEDUCTIONS AND IS MADE, IN THE
LANGUAGE OF THE ORDER, "TO THE PRODUCER, THROUGH THE MARKET
ADMINISTRATOR," IN ORDER TO ENABLE THE ADMINISTRATOR TO COVER THE
DIFFERENTIALS AND DEDUCTIONS IN QUESTION N15.  IT IS THE CONTENTION OF
THE PETITIONERS THAT BY SEC. 904.7(B)(6)  FN16  OF THE ORDER THE
SECRETARY HAS DIRECTED THE ADMINISTRATOR TO DEDUCT A SUM FOR THE
PURPOSE OF MEETING PAYMENTS TO COOPERATIVES AS REQUIRED BY SEC. 904.9,
AND THAT THE ACT DOES NOT AUTHORIZE THE SECRETARY TO INCLUDE IN HIS
ORDER PROVISION FOR PAYMENTS OF THAT KIND OR FOR DEDUCTIONS TO MEET
THEM.  APPARENTLY, THIS DEDUCTION FOR PAYMENTS TO COOPERATIVES IS THE
ONLY DEDUCTION THAT IS AN UNRECOVERABLE CHARGE AGAINST THE PRODUCERS. 
THE OTHER ITEMS DEDUCTED UNDER SEC. 904.7(B) ARE FOR A REVOLVING FUND
OR TO MEET DIFFERENTIALS IN PRICE BECAUSE OF LOCATION, SEASONAL
DELIVERY, ET CETERA. 

THESE PRODUCER PETITIONERS ALLEGE THAT THEY HAVE DELIVERED MILK TO
HANDLERS IN THE "GREATER BOSTON," MASSACHUSETTS, MARKETING AREA UNDER
THE PROVISIONS OF THE ORDER.  THEY STATE THAT THEY ARE NOT MEMBERS OF A
COOPERATIVE ASSOCIATION ENTITLED UNDER THE ORDER TO THE CONTESTED
PAYMENTS AND THAT, AS PRODUCERS, MANY OF THEM VOTED AGAINST THE
CHALLENGED AMENDMENT ON THE PRODUCERS' REFERENDUM UNDER SECS. 8C (9)
AND 8C (19) OF THE ACT.  THESE ALLEGATIONS ARE ADMITTED BY THE DEFENSE
UPON WHICH DISMISSAL WAS BASED, NAMELY, THAT THE PETITION FAILS TO
STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED.  FROM THE PRECEDING
SUMMARY OF THE THEORY AND PLAN OF THE STATUTORY REGULATION OF MINIMUM
PRICES FOR MILK AFFECTING INTERSTATE COMMERCE, IT IS CLEAR THAT THESE
PETITIONERS HAVE EXERCISED THE RIGHT GRANTED THEM BY THE STATUTE AND
ORDER TO DELIVER THEIR MILK TO "GREATER BOSTON" HANDLERS AT THE
GUARANTEED MINIMUM PRICES FIXED BY THE SECRETARY OF AGRICULTURE IN THE
ORDER.  SEC. 904.4.  UPON ACCEPTING THAT DELIVERY THE HANDLER WAS
REQUIRED BY THE ORDER TO PAY TO THESE PRODUCERS THEIR MINIMUM PRICES IN
THE MANNER SET FORTH IN SEC. 904.8.  SIMPLY STATED, THIS SECTION
REQUIRED THE HANDLER TO PAY DIRECTLY TO THE PRODUCER THE BLENDED PRICE
AS DETERMINED BY THE ADMINISTRATOR AND TO PAY TO THE PRODUCERS THROUGH
THE ADMINISTRATOR FOR USE IN MEETING THE DEDUCTIONS AUTHORIZED BY THE
ORDER OF THE SECRETARY AND APPROVED BY TWO-THIRDS OF THE PRODUCERS,
SEC. 8C (9)(B), THE DIFFERENCE BETWEEN THE BLENDED PRICE AND THE
MINIMUM PRICE.  THE ORDER DIRECTED THE ADMINISTRATOR TO DEDUCT FROM THE
FUNDS COMING INTO HIS HANDS FROM THE PRODUCERS' SALE PRICE THE PAYMENTS
TO COOPERATIVES.  SEC. 904.9. 

IT IS THIS DEDUCTION WHICH THE PRODUCERS CHALLENGE AS BEYOND THE
SECRETARY'S STATUTORY POWER.  THE RESPONDENTS ANSWER THAT THE
PETITIONERS HAVE NOT SUCH A LEGAL INTEREST IN THIS EXPENDITURE OR IN
THE ADMINISTRATOR'S SETTLEMENT FUND AS ENTITLES THEM TO CHALLENGE THE
ACTION OF THE SECRETARY IN DIRECTING THE DISBURSEMENT.  THE GOVERNMENT
SAYS THAT AS THE PRODUCERS PAY NOTHING INTO THE SETTLEMENT FUND AND
RECEIVE NOTHING FROM IT, THEY HAVE NO LEGALLY PROTECTED RIGHT WHICH
GIVES THEM STANDING TO SUE.  THERE IS, OF COURSE, NO QUESTION BUT THAT
THE CHALLENGED DEDUCTION REDUCES PRO TANTO THE AMOUNT ACTUALLY RECEIVED
BY THE PRODUCERS FOR THEIR MILK. 

BY THE STATUTE AND ORDER, THE SECRETARY HAS REQUIRED ALL AREA
HANDLERS DEALING IN THE MILK OF OTHER PRODUCERS TO PAY MINIMUM PRICES
AS JUST DESCRIBED.  SECS. 904.1(6), 904.4; ACT, SEC. 8C (14).  THE
PRODUCER IS NOT COMPELLED BY THE ORDER TO DELIVER (ACT SEC. 8C (13)(B))
BUT NEITHER CAN HE BE REQUIRED TO MARKET ELSEWHERE; AND IF HE FINDS A
DEALER IN THE AREA WHO WILL BUY HIS PRODUCT, THE PRODUCER BY DELIVERY
OF MILK COMES WITHIN THE SCOPE OF THE ACT AND THE ORDER.  THE ORDER
FIXING THE MINIMUM PRICE OBVIOUSLY AFFECTS BY DIRECT GOVERNMENTAL
ACTION THE PRODUCER'S BUSINESS RELATIONS WITH HANDLERS.  COLUMBIA
BROADCASTING SYSTEM V. UNITED STATES, 316 U.S. 407, 422.  CF. CHICAGO
JUNCTION CASE, 264 U.S. 258, 267.  THE FACT THAT THE PRODUCER MAY SELL
TO THE HANDLER FOR ANY PRICE ABOVE THE MINIMUM IS NOT OF MOMENT IN
DETERMINING WHETHER OR NOT THE STATUTE AND ORDER SECURE TO HIM A
MINIMUM PRICE.  SHOULD THE PRODUCER SELL HIS MILK TO A HANDLER AT
PRICES IN EXCESS OF THE MINIMUM, THE HANDLER WOULD NEVERTHELESS BE
COMPELLED TO PAY INTO THE FUND THE SAME AMOUNT.  THE CHALLENGED
DEDUCTION IS A BURDEN ON EVERY AREA SALE.  SECS. 904.7(A), 904.8(B). 
IN SUBSTANCE PETITIONERS' ALLEGATION IS THAT IN EFFECT THE ORDER
DIRECTED WITHOUT STATUTORY AUTHORITY A DEDUCTION OF A SUM TO PAY THE
UNITED STATES A SALES TAX ON MILK SOLD.  THE STATUTE AND ORDER CREATE A
RIGHT IN THE PRODUCER TO AVAIL HIMSELF OF THE PROTECTION OF A MINIMUM
PRICE AFFORDED BY GOVERNMENTAL ACTION.  SUCH A RIGHT CREATED BY STATUTE
IS MANDATORY IN CHARACTER AND OBVIOUSLY CAPABLE OF JUDICIAL
ENFORCEMENT.  FN17  FOR EXAMPLE, THE ORDER COULD NOT BAR ANY QUALIFIED
PRODUCERS IN THE MILK SHED FROM SELLING TO AREA HANDLERS.  LIKE THE
INSTANCES JUST CITED FROM RAILWAY LABOR CASES, SUPRA, N. 17, THE
PETITIONERS HERE VOLUNTARILY BRING THEMSELVES WITHIN THE COVERAGE OF
THE ACT.  IT CANNOT BE FAIRLY SAID THAT BECAUSE PRODUCERS MAY CHOOSE
NOT TO SELL IN THE AREA, THOSE WHO DO CHOOSE TO SELL THERE NECESSARILY
MUST SELL, WITHOUT A RIGHT OF CHALLENGE, IN ACCORDANCE WITH UNLAWFUL
REQUIREMENTS OF ADMINISTRATORS.  UPON PURCHASE OF HIS MILK BY A
HANDLER, THE STATUTE ENDOWS THE PRODUCER WITH OTHER RIGHTS, E.G., THE
RIGHT TO BE PAID A MINIMUM PRICE.  ORDER, SEC. 904.4. 

THE MERE FACT THAT GOVERNMENTAL ACTION UNDER LEGISLATION CREATES AN
OPPORTUNITY TO RECEIVE A MINIMUM PRICE DOES NOT SETTLE THE PROBLEM OF
WHETHER OR NOT THE PARTICULAR CLAIM MADE HERE IS ENFORCIBLE BY THE
DISTRICT COURT.  THE DEDUCTION FOR COOPERATIVES MAY HAVE DETRIMENTAL
EFFECT ON THE PRICE TO PRODUCERS AND THAT DETRIMENT BE DAMNUM ABSQUE
INJURIA.  FN18  IT IS ONLY WHEN A COMPLAINANT POSSESSES SOMETHING MORE
THAN A GENERAL INTEREST IN THE PROPER EXECUTION OF THE LAWS THAT HE IS
IN A POSITION TO SECURE JUDICIAL INTERVENTION.  HIS INTEREST MUST RISE
TO THE DIGNITY OF AN INTEREST PERSONAL TO HIM AND NOT POSSESSED BY THE
PEOPLE GENERALLY.  FN19  SUCH A CLAIM IS OF THAT CHARACTER WHICH
CONSTITUTIONALLY PERMITS ADJUDICATION BY COURTS UNDER THEIR GENERAL
POWERS.  FN20 

WE DEEM IT CLEAR THAT ON THE ALLEGATIONS OF THE COMPLAINT THESE
PRODUCERS HAVE SUCH A PERSONAL CLAIM AS JUSTIFIES JUDICIAL
CONSIDERATION.  IT IS MUCH MORE DEFINITE AND PERSONAL THAN THE RIGHT OF
COMPLAINANTS TO JUDICIAL CONSIDERATION OF THEIR OBJECTIONS TO
REGULATIONS, WHICH THIS COURT UPHELD IN COLUMBIA BROADCASTING SYSTEM V.
UNITED STATES, 316 U.S. 407.  IN THE PRESENT CASE A REEXAMINATION OF
THE PRECEDING STATEMENT OF FACTS AND SUMMARY OF THE STATUTE AND ORDER
WILL SHOW THAT DELIVERING PRODUCERS ARE ASSURED MINIMUM PRICES FOR
THEIR MILK.  SEC. 904.4.  THE ORDER DIRECTS THE HANDLER TO PAY THAT
MINIMUM AS FOLLOWS:    A. BY SEC. 904.8(A) THE HANDLER IS TO MAKE A
PRELIMINARY PART PAYMENT OF THE BLENDED PRICE AND LATER, SEC.
904.8(B)(1) THE HANDLER MAKES THE FINAL PAYMENT TO THE PRODUCER OF THE
BLENDED PRICE COMPUTED AS THE ORDER DIRECTS.  IT IS CLEAR THAT THE
ORDER COMPELS THE HANDLER TO PAY NOT ONLY THE BLENDED PRICE, WHICH IS
ALWAYS LESS THAN THE UNIFORM MINIMUM PRICE, BUT THE ENTIRE MINIMUM
PRICE, BECAUSE SEC. 904.8(B) DIRECTS THE HANDLER'S PAYMENT OF THE
ENTIRE MINIMUM VALUE AS ASCERTAINED BY SEC. 904.7(A)(1) AND (2).  THE
BLENDED PRICE IS REACHED BY SUBTRACTING AMONG OTHER ITEMS THE
COOPERATIVE PAYMENT, HERE IN QUESTION, FROM THE MINIMUM PRICE.  SEC.
904.7(B)(5). 

B. THE BALANCE OF THE MINIMUM PRICE, WHICH THE HANDLER OWES TO THE
PRODUCER, HE MUST PAY "TO THE PRODUCER, THROUGH THE MARKET
ADMINISTRATOR" BY PAYMENT INTO THE SETTLEMENT OR EQUALIZATION FUND TWO
DAYS AHEAD OF THE FINAL DATE FOR PAYMENT OF THE BLENDED PRICE.  SEC.
904.8(B)(3).  THIS BALANCE OF THE MINIMUM PURCHASE PRICE IS THEN PARTLY
USED BY THE ADMINISTRATOR TO PAY THE COOPERATIVES.  SEC. 904.9(B).  THE
HANDLER IS SIMPLY A CONDUIT FROM THE ADMINISTRATOR WHO RECEIVES AND
DISTRIBUTES THE MINIMUM PRICES.  THE SITUATION WOULD BE SUBSTANTIALLY
THE SAME IF AN ADMINISTRATOR RECEIVED AS TRUSTEE FOR THE PRODUCERS THE
PURCHASE PRICE OF THEIR MILK, PAID EXPENSES INCURRED IN THE OPERATION,
AND PAID THE BALANCE TO THE PRODUCERS.  UNDER SUCH CIRCUMSTANCES WE
THINK THE PRODUCERS HAVE LEGAL STANDING TO OBJECT TO ILLEGAL PROVISIONS
OF THE ORDER. 

HOWEVER, EVEN WHERE A COMPLAINANT POSSESSES A CLAIM TO EXECUTIVE
ACTION BENEFICIAL TO HIM, CREATED BY FEDERAL STATUTE, IT DOES NOT
NECESSARILY FOLLOW THAT ACTIONS OF ADMINISTRATIVE OFFICIALS, DEEMED BY
THE OWNER OF THE RIGHT TO PLACE UNLAWFUL RESTRICTIONS UPON HIS CLAIM,
ARE COGNIZABLE IN APPROPRIATE FEDERAL COURTS OF FIRST INSTANCE.  WHEN
THE CLAIMS CREATED ARE AGAINST THE UNITED STATES, NO REMEDY THROUGH THE
COURTS NEED BE PROVIDED.  UNITED STATES V. BABCOCK, 250 U.S. 328, 331,
AND CASES CITED; WORK V. RIVES, 267 U.S. 175, 181; BUTTE, A. & P. RY.
CO. V. UNITED STATES, 290 U.S. 127, 142, 143.  TO REACH THE DIGNITY OF
A LEGAL RIGHT IN THE STRICT SENSE, IT MUST APPEAR FROM THE NATURE AND
CHARACTER OF THE LEGISLATION THAT CONGRESS INTENDED TO CREATE A
STATUTORY PRIVILEGE PROTECTED BY JUDICIAL REMEDIES.  UNDER THE UNUSUAL
CIRCUMSTANCES OF THE HISTORICAL DEVELOPMENT OF THE RAILWAY LABOR ACT,
THIS COURT HAS RECENTLY HELD THAT AN ADMINISTRATIVE AGENCY'S
DETERMINATION OF A CONTROVERSY BETWEEN UNIONS OF EMPLOYEES AS TO WHICH
IS THE PROPER BARGAINING REPRESENTATIVE OF CERTAIN EMPLOYEES IS NOT
JUSTICIABLE IN FEDERAL COURTS.  GENERAL COMMITTEE V. M.-K.-T.R. CO.,
320 U.S. 323.  UNDER THE SAME ACT IT WAS HELD ON THE SAME DATE THAT THE
DETERMINATION BY THE NATIONAL MEDIATION BOARD OF THE PARTICIPANTS IN AN
ELECTION FOR REPRESENTATIVES FOR COLLECTIVE BARGAINING LIKEWISE WAS NOT
SUBJECT TO JUDICIAL REVIEW.  SWITCHMEN'S UNION V. MEDIATION BOARD, 320
U.S. 297.  THIS RESULT WAS REACHED BECAUSE OF THIS COURT'S VIEW THAT
JURISDICTIONAL DISPUTES BETWEEN UNIONS WERE LEFT BY CONGRESS TO
MEDIATION RATHER THAN ADJUDICATION.  320 U.S. 302 AND 337.  THAT IS TO
SAY, NO PERSONAL RIGHT OF EMPLOYEES, ENFORCIBLE IN THE COURTS, WAS
CREATED IN THE PARTICULAR INSTANCES UNDER CONSIDERATION.  320 U.S.
337.  BUT WHERE RIGHTS OF COLLECTIVE BARGAINING, CREATED BY THE SAME
RAILWAY LABOR ACT, CONTAINED DEFINITE PROHIBITIONS OF CONDUCT OR WERE
MANDATORY IN FORM, THIS COURT ENFORCED THE RIGHTS JUDICIALLY.  320 U.S.
330, 331.  CF. TEXAS & N.O.R. CO. V. BROTHERHOOD OF CLERKS, 281 U.S.
548; VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515. 

IT WAS POINTED OUT IN THE SWITCHMEN'S CASE THAT: 

"IF THE ABSENCE OF JURISDICTION OF THE FEDERAL COURTS MEANT A
SACRIFICE OR OBLITERATION OF A RIGHT WHICH CONGRESS HAD CREATED, THE
INFERENCE WOULD BE STRONG THAT CONGRESS INTENDED THE STATUTORY
PROVISIONS GOVERNING THE GENERAL JURISDICTION OF THOSE COURTS TO
CONTROL."  320 U.S. AT 300.  THE ONLY OPPORTUNITY THESE PETITIONERS HAD
TO COMPLAIN OF THE CONTESTED DEDUCTION WAS TO APPEAR AT HEARINGS AND TO
VOTE FOR OR AGAINST THE PROPOSED ORDER.  ACT, SEC. 8C (3), 8C (9) AND
8C (19); ORDER, PREAMBLE.  SO LONG AS THE PROVISIONS OF THE ORDER ARE
WITHIN THE STATUTORY AUTHORITY OF THE SECRETARY SUCH HEARINGS AND
BALLOTING FURNISH ADEQUATE OPPORTUNITY FOR PROTEST.  MORGAN V. UNITED
STATES, 298 U.S. 468, 480.  BUT WHERE AS HERE THE ISSUE IS STATUTORY
POWER TO MAKE THE DEDUCTION REQUIRED BY ORDER, SEC. 904.9, UNDER THE
AUTHORITY OF SEC. 8C (7)(D) OF THE ACT, A MERE HEARING OR OPPORTUNITY
TO VOTE CANNOT PROTECT MINORITY PRODUCERS AGAINST UNLAWFUL EXACTIONS
WHICH MIGHT BE VOTED UPON THEM BY MAJORITIES.  IT CAN HARDLY BE SAID
THAT OPPORTUNITY TO BE HEARD ON MATTERS WITHIN THE SECRETARY'S
DISCRETION WOULD FORECLOSE AN ATTACK ON THE INCLUSION IN THE ORDER OF
PROVISIONS ENTIRELY OUTSIDE OF THE SECRETARY'S DELEGATED POWERS. 

WITHOUT CONSIDERING WHETHER OR NOT CONGRESS COULD CREATE SUCH A
DEFINITE PERSONAL STATUTORY RIGHT IN AN INDIVIDUAL AGAINST A FUND
HANDLED BY A FEDERAL AGENCY, AS WE HAVE HERE, AND YET LIMIT ITS
ENFORCEABILITY TO ADMINISTRATIVE DETERMINATION, DESPITE THE EXISTENCE
OF FEDERAL COURTS OF GENERAL JURISDICTION ESTABLISHED UNDER ARTICLE III
OF THE CONSTITUTION, THE CONGRESSIONAL GRANT OF JURISDICTION OF THIS
PROCEEDING APPEARS PLAIN.  THERE IS NO DIRECT JUDICIAL REVIEW GRANTED
BY THIS STATUTE FOR THESE PROCEEDINGS.  THE AUTHORITY FOR A JUDICIAL
EXAMINATION OF THE VALIDITY OF THE SECRETARY'S ACTION IS FOUND IN THE
EXISTENCE OF COURTS AND THE INTENT OF CONGRESS AS DEDUCED FROM THE
STATUTES AND PRECEDENTS AS HEREINAFTER CONSIDERED. 

THE ACT BEARS ON ITS FACE THE INTENT TO SUBMIT MANY QUESTIONS ARISING
UNDER ITS ADMINISTRATION TO JUDICIAL REVIEW.  SECS. 8A (6), 8C (15)(A)
AND (B).  IT SPECIFICALLY STATES THAT THE REMEDIES SPECIFICALLY
PROVIDED IN SEC. 8A ARE TO BE IN ADDITION TO ANY REMEDIES NOW EXISTING
AT LAW OR EQUITY.  SEC. 8A (8).  THIS COURT HAS HERETOFORE CONSTRUED
THE ACT TO GRANT HANDLERS JUDICIAL RELIEF IN ADDITION TO THE STATUTORY
REVIEW SPECIFICALLY PROVIDED BY SEC. 8C (15).  ON COMPLAINT BY THE
UNITED STATES, THE HANDLER WAS PERMITTED BY WAY OF DEFENSE TO RAISE
ISSUES OF A WANT OF STATUTORY AUTHORITY TO IMPOSE PROVISIONS ON
HANDLERS WHICH DIRECTLY AFFECT SUCH HANDLERS.  UNITED STATES V. ROCK
ROYAL CO-OP., 307 U.S. 533, 560-61.  IN THE ROCK ROYAL CASE THE
GOVERNMENT HAD CONTENDED THAT THE HANDLERS HAD NO LEGAL STANDING IN THE
SUIT FOR ENFORCEMENT TO ATTACK PROVISIONS OF THE ORDER RELATING TO
HANDLERS.  WHILE WE UPHELD THE CONTENTION OF THE GOVERNMENT AS TO THE
LACK OF STANDING OF HANDLERS TO OBJECT TO THE OPERATION OF THE PRODUCER
SETTLEMENT FUND ON THE GROUND THAT THE HANDLERS HAD NO "FINANCIAL
INTEREST" IN THAT FUND, WE RECOGNIZED THE STANDING OF A PROPRIETARY
HANDLER TO QUESTION THE ALLEGED DISCRIMINATION SHOWN IN FAVOR OF THE CO
OPERATIVE HANDLERS.  THE PRODUCER SETTLEMENT FUND IS CREATED TO MEET
ALLOWABLE DEDUCTIONS BY THE PAYMENT OF A PART OF THE MINIMUM PRICE TO
PRODUCERS THROUGH THE MARKET ADMINISTRATOR.  SEE NOTE 15, SUPRA. ROCK
ROYAL POINTED OUT THAT HANDLERS WERE WITHOUT STANDING TO QUESTION THE
USE OF THE FUND, BECAUSE HANDLERS HAD NO FINANCIAL INTEREST IN THE FUND
OR ITS USE.  IT IS BECAUSE EVERY DOLLAR OF DEDUCTION COMES FROM THE
PRODUCER THAT HE MAY CHALLENGE THE USE OF THE FUND.  THE PETITIONERS'
COMPLAINT IS NOT THAT THEIR BLENDED PRICE IS TOO LOW, BUT THAT THE
BLENDED PRICE HAS BEEN REDUCED BY A MISAPPLICATION OF MONEY DEDUCTED
FROM THE PRODUCERS' MINIMUM PRICE. 

WITH THIS RECOGNITION BY CONGRESS OF THE APPLICABILITY OF JUDICIAL
REVIEW IN THIS FIELD, IT IS NOT TO BE LIGHTLY ASSUMED THAT THE SILENCE
OF THE STATUTE BARS FROM THE COURTS AN OTHERWISE JUSTICIABLE ISSUE,
UNITED STATES V. GRIFFIN, 303 U.S. 226, 238; SHIELDS V. UTAH IDAHO R.
CO., 305 U.S. 177, 182; CF. A.F. OF L. V. LABOR BOARD, 308 U.S. 401,
404, 412.  THE RULING IN TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL
CO., 204 U.S. 426, IS NOT AUTHORITY TO THE CONTRARY.  IT WAS THERE HELD
THAT THE STATUTE PLACED THE POWER IN THE INTERSTATE COMMERCE COMMISSION
TO HEAR THE COMPLAINT STATED, NOT IN THE STATE COURT WHERE IT WAS
BROUGHT.  THE COMMISSION AWARD WAS THEN TO BE ENFORCED IN COURT.  P.
438.  HERE, THERE IS NO FORUM, OTHER THAN THE ORDINARY COURTS, TO HEAR
THIS COMPLAINT.  WHEN, AS WE HAVE PREVIOUSLY CONCLUDED IN THIS OPINION,
DEFINITE PERSONAL RIGHTS ARE CREATED BY FEDERAL STATUTE, SIMILAR IN
KIND TO THOSE CUSTOMARILY TREATED IN COURTS OF LAW, FN21  THE SILENCE
OF CONGRESS AS TO JUDICIAL REVIEW IS, AT ANY RATE IN THE ABSENCE OF AN
ADMINISTRATIVE REMEDY, NOT TO BE CONSTRUED AS A DENIAL OF AUTHORITY TO
THE AGGRIEVED PERSON TO SEEK APPROPRIATE RELIEF IN THE FEDERAL COURTS
IN THE EXERCISE OF THEIR GENERAL JURISDICTION.  WHEN CONGRESS PASSES AN
ACT EMPOWERING ADMINISTRATIVE AGENCIES TO CARRY ON GOVERNMENTAL
ACTIVITIES, THE POWER OF THOSE AGENCIES IS CIRCUMSCRIBED BY THE
AUTHORITY GRANTED.  FN22  THIS PERMITS THE COURTS TO PARTICIPATE IN LAW
ENFORCEMENT ENTRUSTED TO ADMINISTRATIVE BODIES ONLY TO THE EXTENT
NECESSARY TO PROTECT JUSTICIABLE INDIVIDUAL RIGHTS AGAINST
ADMINISTRATIVE ACTION FAIRLY BEYOND THE GRANTED POWERS.  THE
RESPONSIBILITY OF DETERMINING THE LIMITS OF STATUTORY GRANTS OF
AUTHORITY IN SUCH INSTANCES IS A JUDICIAL FUNCTION ENTRUSTED TO THE
COURTS BY CONGRESS BY THE STATUTES ESTABLISHING COURTS AND MARKING
THEIR JURISDICTION.  CF. UNITED STATES V. MORGAN, 307 U.S. 183, 190
91.  THIS IS VERY FAR FROM ASSUMING THAT THE COURTS ARE CHARGED MORE
THAN ADMINISTRATORS OR LEGISLATORS WITH THE PROTECTION OF THE RIGHTS OF
THE PEOPLE.  CONGRESS AND THE EXECUTIVE SUPERVISE THE ACTS OF
ADMINISTRATIVE AGENTS.  THE POWERS OF DEPARTMENTS, BOARDS AND
ADMINISTRATIVE AGENCIES ARE SUBJECT TO EXPANSION, CONTRACTION OR
ABOLITION AT THE WILL OF THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE
GOVERNMENT.  THESE BRANCHES HAVE THE RESOURCES AND PERSONNEL TO EXAMINE
INTO THE WORKING OF THE VARIOUS ESTABLISHMENTS TO DETERMINE THE
NECESSARY CHANGES OF FUNCTION OR MANAGEMENT.  BUT UNDER ARTICLE III,
CONGRESS ESTABLISHED COURTS TO ADJUDICATE CASES AND CONTROVERSIES AS TO
CLAIMS OF INFRINGEMENT OF INDIVIDUAL RIGHTS WHETHER BY UNLAWFUL ACTION
OF PRIVATE PERSONS OR BY THE EXERTION OF UNAUTHORIZED ADMINISTRATIVE
POWER. 

IT IS SUGGESTED THAT SUCH A RULING PUTS THE AGENCY AT THE MERCY OF
OBJECTORS, SINCE ANY PROVISIONS OF THE ORDER MAY BE ATTACKED AS
UNAUTHORIZED BY EACH PRODUCER.  TO THIS OBJECTION THERE ARE ADEQUATE
ANSWERS.  THE TERMS OF THE ORDER ARE LARGELY MATTERS OF ADMINISTRATIVE
DISCRETION AS TO WHICH THERE IS NO JUSTICIABLE RIGHT OR ARE CLEARLY
AUTHORIZED BY A VALID ACT.  UNITED STATES V. ROCK ROYAL CO-OP., 307
U.S. 533.  TECHNICAL DETAILS OF THE MILK BUSINESS ARE LEFT TO THE
SECRETARY AND HIS AIDES.  THE EXPENSES OF LITIGATION DETER FRIVOLOUS
CONTENTIONS.  IF NUMEROUS PARALLEL CASES ARE FILED, THE COURTS HAVE
AMPLE AUTHORITY TO STAY USELESS LITIGATION UNTIL THE DETERMINATION OF A
TEST CASE.  CF. LANDIS V. NORTH AMERICAN CO., 299 U.S. 248.  SHOULD
SOME PROVISIONS OF AN ORDER BE HELD TO EXCEED THE STATUTORY POWER OF
THE SECRETARY, IT IS WELL WITHIN THE POWER OF A COURT OF EQUITY TO SO
MOLD A DECREE AS TO PRESERVE IN THE PUBLIC INTEREST THE OPERATION OF
THE PORTION OF THE ORDER WHICH IS NOT ATTACKED PENDING AMENDMENT. 

IT HARDLY NEED BE ADDED THAT WE HAVE NOT CONSIDERED THE SOUNDNESS OF
THE ALLEGATIONS MADE BY THE PETITIONERS IN THEIR COMPLAINT.  THE TRIAL
COURT IS FREE TO CONSIDER WHETHER THE STATUTORY AUTHORITY GIVEN THE
SECRETARY IS A VALID ANSWER TO THE PETITIONERS' CONTENTION.  WE MERELY
DETERMINE THE PETITIONERS HAVE SHOWN A RIGHT TO A JUDICIAL EXAMINATION
OF THEIR COMPLAINT.  REVERSED. 

FN1  SEE 18 D.C. CODE SEC. 41, AS AMENDED, 49 STAT. 1921.  THE
DISTRICT OF COLUMBIA COURT MAY ALSO EXERCISE THE SAME JURISDICTION OF
UNITED STATES DISTRICT COURTS GENERALLY, 18 D.C. CODE SEC. 43, WHICH
HAVE JURISDICTION UNDER THE JUDICIAL CODE OVER CASES ARISING UNDER ACTS
REGULATING INTERSTATE COMMERCE.  JUDICIAL CODE, SEC. 24(8), 28 U.S.C.
SEC. 41(8); MULFORD V. SMITH, 307 U.S. 38; TURNER LUMBER CO. V.
CHICAGO, M. & ST. P. RY. CO., 271 U.S. 259; ROBERTSON V. ARGUS HOSIERY
MILLS, 121 F.2D 285. 

FN2  SEE TENNESSEE POWER CO. V. T.V.A., 306 U.S. 118, 137-8. 

FN3  SEE UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533; H. P. HOOD
& SONS V. UNITED STATES, 307 U.S. 588. 

FN4 THE FOLLOWING CLAUSES OF THE ACT ARE NECESSARY TO A CONSIDERATION
OF THIS CASE: 

"SEC. 2.  IT IS HEREBY DECLARED TO BE THE POLICY OF CONGRESS - 

"(1)  THROUGH THE EXERCISE OF THE POWERS CONFERRED UPON THE SECRETARY
OF AGRICULTURE UNDER THIS TITLE, TO ESTABLISH AND MAINTAIN SUCH ORDERLY
MARKETING CONDITIONS FOR AGRICULTURAL COMMODITIES IN INTERSTATE
COMMERCE AS WILL ESTABLISH PRICES TO FARMERS AT A LEVEL THAT WILL GIVE
AGRICULTURAL COMMODITIES A PURCHASING POWER WITH RESPECT TO ARTICLES
THAT FARMERS BUY, EQUIVALENT TO THE PURCHASING POWER OF AGRICULTURAL
COMMODITIES IN THE BASE PERIOD; AND, IN THE CASE OF ALL COMMODITIES FOR
WHICH THE BASE PERIOD IS THE PRE-WAR PERIOD, AUGUST 1909 TO JULY 1914,
WILL ALSO REFLECT CURRENT INTEREST PAYMENTS PER ACRE ON FARM
INDEBTEDNESS SECURED BY REAL ESTATE AND TAX PAYMENTS PER ACRE ON FARM
REAL ESTATE, AS CONTRASTED WITH SUCH INTEREST PAYMENTS AND TAX PAYMENTS
DURING THE BASE PERIOD.  THE BASE PERIOD IN THE CASE OF ALL
AGRICULTURAL COMMODITIES EXCEPT TOBACCO AND POTATOES SHALL BE THE
PREWAR PERIOD, AUGUST 1909-JULY 1914.  IN THE CASE OF TOBACCO AND
POTATOES, THE BASE PERIOD SHALL BE THE POST-WAR PERIOD, AUGUST 1919
JULY 1929.    "(2)  TO PROTECT THE INTEREST OF THE CONSUMER BY (A)
APPROACHING THE LEVEL OF PRICES WHICH IT IS DECLARED TO BE THE POLICY
OF CONGRESS TO ESTABLISH IN SUBSECTION (1) OF THIS SECTION BY GRADUAL
CORRECTION OF THE CURRENT LEVEL AT AS RAPID A RATE AS THE SECRETARY OF
AGRICULTURE DEEMS TO BE IN THE PUBLIC INTEREST AND FEASIBLE IN VIEW OF
THE CURRENT CONSUMPTIVE DEMAND IN DOMESTIC AND FOREIGN MARKETS, AND (B)
AUTHORIZING NO ACTION UNDER THIS TITLE WHICH HAS FOR ITS PURPOSE THE
MAINTENANCE OF PRICES TO FARMERS ABOVE THE LEVEL WHICH IT IS DECLARED
TO BE THE POLICY OF CONGRESS TO ESTABLISH IN SUBSECTION (1) OF THIS
ALLOTMENT FIXED FOR HIM UNDER THIS TITLE BY THE SECRETARY OF
AGRICULTURE, AND ANY OTHER PERSON KNOWINGLY PARTICIPATING, OR AIDING,
IN THE EXCEEDING OF SAID QUOTA OR ALLOTMENT, SHALL FORFEIT TO THE
UNITED STATES A SUM EQUAL TO THREE TIMES THE CURRENT MARKET VALUE OF
SUCH EXCESS, WHICH FORFEITURE SHALL BE RECOVERABLE IN A CIVIL SUIT
BROUGHT IN THE NAME OF THE UNITED STATES. 

"(6) THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE HEREBY
VESTED WITH JURISDICTION SPECIFICALLY TO ENFORCE, AND TO PREVENT AND
RESTRAIN ANY PERSON FROM VIOLATING ANY ORDER, REGULATION, OR AGREEMENT,
HERETOFORE OR HEREAFTER MADE OR ISSUED PURSUANT TO THIS TITLE, IN ANY
PROCEEDING NOW PENDING OR HEREAFTER BROUGHT IN SAID COURTS. 

"(7)  UPON THE REQUEST OF THE SECRETARY OF AGRICULTURE, IT SHALL BE
THE DUTY OF THE SEVERAL DISTRICT ATTORNEYS OF THE UNITED STATES, IN
THEIR RESPECTIVE DISTRICTS, UNDER THE DIRECTIONS OF THE ATTORNEY
GENERAL, TO INSTITUTE PROCEEDINGS TO ENFORCE THE REMEDIES AND TO
COLLECT THE FORFEITURES PROVIDED FOR IN, OR PURSUANT TO, THIS TITLE. 
WHENEVER THE SECRETARY, OR SUCH OFFICER OR EMPLOYEE OF THE DEPARTMENT
OF AGRICULTURE AS HE MAY DESIGNATE FOR THE PURPOSE, HAS REASON TO
BELIEVE THAT ANY HANDLER HAS VIOLATED, OR IS VIOLATING, THE PROVISIONS
OF ANY ORDER OR AMENDMENT THERETO ISSUED PURSUANT TO THIS TITLE, THE
SECRETARY SHALL HAVE POWER TO INSTITUTE AN INVESTIGATION AND, AFTER DUE
NOTICE TO SUCH HANDLER, TO CONDUCT A HEARING IN ORDER TO DETERMINE THE
FACTS FOR THE PURPOSE OF REFERRING THE MATTER TO THE ATTORNEY GENERAL
FOR APPROPRIATE ACTION. 

"(8)  THE REMEDIES PROVIDED FOR IN THIS SECTION SHALL BE IN ADDITION
TO, AND NOT EXCLUSIVE OF, ANY OF THE REMEDIES OR PENALTIES PROVIDED FOR
ELSEWHERE IN THIS TITLE OR NOW OR HEREAFTER EXISTING AT LAW OR IN
EQUITY. 

"(9)  THE TERM 'PERSON' AS USED IN THIS TITLE INCLUDES AN INDIVIDUAL,
PARTNERSHIP, CORPORATION, ASSOCIATION, AND ANY OTHER BUSINESS UNIT." 

"SEC. 8C(3)  WHENEVER THE SECRETARY OF AGRICULTURE HAS REASON TO
BELIEVE THAT THE ISSUANCE OF AN ORDER WILL TEND TO EFFECTUATE THE
DECLARED POLICY OF THIS TITLE WITH RESPECT TO ANY COMMODITY OR PRODUCT
THEREOF SPECIFIED IN SUBSECTION (2) OF THIS SECTION, HE SHALL GIVE DUE
NOTICE OF AND AN OPPORTUNITY FOR A HEARING UPON A PROPOSED ORDER. 

"(4)  AFTER SUCH NOTICE AND OPPORTUNITY FOR HEARING, THE SECRETARY OF
AGRICULTURE SHALL ISSUE AN ORDER IF HE FINDS, AND SETS FORTH IN SUCH
ORDER, UPON THE EVIDENCE INTRODUCED AT SUCH HEARING (IN ADDITION TO
SUCH OTHER FINDINGS AS MAY BE SPECIFICALLY REQUIRED BY THIS SECTION)
THAT THE ISSUANCE OF SUCH ORDER AND ALL OF THE TERMS AND CONDITIONS
THEREOF WILL TEND TO EFFECTUATE THE DECLARED POLICY OF THIS TITLE WITH
RESPECT TO SUCH COMMODITY. 

"(5)  IN THE CASE OF MILK AND ITS PRODUCTS, ORDERS ISSUED PURSUANT TO
THIS SECTION SHALL CONTAIN ONE OR MORE OF THE FOLLOWING TERMS AND
CONDITIONS, AND (EXCEPT AS PROVIDED IN SUBSECTION (7)) NO OTHERS: 

"(A)  CLASSIFYING MILK IN ACCORDANCE WITH THE FORM IN WHICH OR THE
PURPOSE FOR WHICH IT IS USED, AND FIXING, OR PROVIDING A METHOD FOR
FIXING, MINIMUM PRICES FOR EACH SUCH USE CLASSIFICATION WHICH ALL
HANDLERS SHALL PAY, AND THE TIME WHEN PAYMENTS SHALL BE MADE, FOR MILK
PURCHASED FROM PRODUCERS OR ASSOCIATIONS OF PRODUCERS.  SUCH PRICES
SHALL BE UNIFORM AS TO ALL HANDLERS, SUBJECT ONLY TO ADJUSTMENTS FOR
(1) VOLUME, MARKET, AND PRODUCTION DIFFERENTIALS CUSTOMARILY APPLIED BY
THE HANDLERS SUBJECT TO SUCH ORDER, (2) THE GRADE OR QUALITY OF THE
MILK PURCHASED, AND (3) THE LOCATIONS AT WHICH DELIVERY OF SUCH MILK,
OR ANY USE CLASSIFICATION THEREOF, IS MADE TO SUCH HANDLERS. 

"(B)  PROVIDING: 

(I)  FOR THE PAYMENT TO ALL PRODUCERS AND ASSOCIATIONS OF PRODUCERS
DELIVERING MILK TO THE SAME HANDLER OF UNIFORM PRICES FOR ALL MILK
DELIVERED BY THEM:  PROVIDED, THAT, EXCEPT IN THE CASE OF ORDERS
COVERING MILK PRODUCTS ONLY, SUCH PROVISION IS APPROVED OR FAVORED BY
AT LEAST THREE-FOURTHS OF THE PRODUCERS WHO, DURING A REPRESENTATIVE
PERIOD DETERMINED BY THE SECRETARY OF AGRICULTURE, HAVE BEEN ENGAGED IN
THE PRODUCTION FOR MARKET OF MILK COVERED IN SUCH ORDER OR BY PRODUCERS
WHO, DURING SUCH REPRESENTATIVE PERIOD, HAVE PRODUCED AT LEAST THREE
FOURTHS OF THE VOLUME OF SUCH MILK PRODUCED FOR MARKET DURING SUCH
PERIOD; THE APPROVAL REQUIRED HEREUNDER SHALL BE SEPARATE AND APART
FROM ANY OTHER APPROVAL OR DISAPPROVAL PROVIDED FOR BY THIS SECTION;
OR 

(II)  FOR THE PAYMENT TO ALL PRODUCERS AND ASSOCIATIONS OF PRODUCERS
DELIVERING MILK TO ALL HANDLERS OF UNIFORM PRICES FOR ALL MILK SO
DELIVERED, IRRESPECTIVE OF THE USES MADE OF SUCH MILK BY THE INDIVIDUAL
HANDLER TO WHOM IT IS DELIVERED; SUBJECT, IN EITHER CASE, ONLY TO
ADJUSTMENTS FOR (A) VOLUME, MARKET, AND PRODUCTION DIFFERENTIALS
CUSTOMARILY APPLIED BY THE HANDLERS SUBJECT TO SUCH ORDER, (B) THE
GRADE OR QUALITY OF THE MILK DELIVERED, (C) THE LOCATIONS AT WHICH
DELIVERY OF SUCH MILK IS MADE, AND (D) A FURTHER ADJUSTMENT, EQUITABLY
TO APPORTION THE TOTAL VALUE OF THE MILK PURCHASED BY ANY HANDLER, OR
BY ALL HANDLERS, AMONG PRODUCERS AND ASSOCIATIONS OF PRODUCERS, ON THE
BASIS OF THEIR MARKETINGS OF MILK DURING A REPRESENTATIVE PERIOD OF
TIME. 

"(C)  IN ORDER TO ACCOMPLISH THE PURPOSES SET FORTH IN PARAGRAPHS (A)
AND (B) OF THIS SUBSECTION (5), PROVIDING A METHOD FOR MAKING
ADJUSTMENTS IN PAYMENTS, AS AMONG HANDLERS (INCLUDING PRODUCERS WHO ARE
ALSO HANDLERS), TO THE END THAT THE TOTAL SUMS PAID BY EACH HANDLER
SHALL EQUAL THE VALUE OF THE MILK PURCHASED BY HIM AT THE PRICES FIXED
IN ACCORDANCE WITH PARAGRAPH (A) HEREOF." 

  .         .         .         .         . 

AMONG THE PROVISIONS OF SUBSECTION (7), REFERRED TO IN SEC. 8C (5),
IS AUTHORIZATION FOR TERMS DESCRIBED AS FOLLOWS: 

"SEC. 8C(7)(D)  INCIDENTAL TO, AND NOT INCONSISTENT WITH, THE TERMS
AND CONDITIONS SPECIFIED IN SUBSECTIONS (5), (6), AND (7) AND NECESSARY
TO EFFECTUATE THE OTHER PROVISIONS OF SUCH ORDER." 

THAT A MARKETING ORDER MUST HAVE THE APPROVAL OF THE HANDLERS OF AT
LEAST 50% OF THE VOLUME OF THE COMMODITY SUBJECT TO THE ORDER UNLESS
THE SECRETARY, WITH THE APPROVAL OF THE PRESIDENT, DETERMINES THAT THE
PROPOSED ORDER IS NECESSARY TO EFFECTUATE THE DECLARED POLICY OF THE
ACT AND "IS THE ONLY PRACTICAL MEANS OF ADVANCING THE INTERESTS OF THE
PRODUCERS OF SUCH COMMODITY PURSUANT TO THE DECLARED POLICY.  ...  "
SEC. 8C (9)(B).  WHETHER THE HANDLERS AGREE OR NOT, AN ORDER MUST BE
FOUND TO BE "APPROVED OR FAVORED" EITHER BY TWO-THIRDS OF THE PRODUCERS
IN NUMBER OR BY VOLUME OF THE COMMODITY PRODUCED.  SECTION 8C (19)
AUTHORIZES THE SECRETARY TO HOLD A REFERENDUM TO DETERMINE WHETHER
PRODUCERS APPROVE. 

"SEC. 8C(13)(B)  NO ORDER ISSUED UNDER THIS TITLE SHALL BE APPLICABLE
TO ANY PRODUCER IN HIS CAPACITY AS A PRODUCER." 

"SEC. 8C(14)  ANY HANDLER SUBJECT TO AN ORDER ISSUED UNDER THIS
WHO VIOLATES ANY PROVISION OF SUCH ORDER (OTHER THAN A PROVISION
CALLING FOR PAYMENT OF A PRO RATA SHARE OF EXPENSES) SHALL, ON
CONVICTION, BE FINED NOT LESS THAN $50 OR MORE THAN $500 FOR EACH SUCH
VIOLATION, AND EACH DAY DURING WHICH SUCH VIOLATION CONTINUES SHALL BE
DEEMED A SEPARATE VIOLATION:  PROVIDED, THAT IF THE COURT FINDS THAT A
PETITION PURSUANT TO SUBSECTION (15) OF THIS SECTION WAS FILED AND
PROSECUTED BY THE DEFENDANT IN GOOD FAITH AND NOT FOR DELAY, NO PENALTY
SHALL BE IMPOSED UNDER THIS SUBSECTION FOR SUCH VIOLATIONS AS OCCURRED
BETWEEN THE DATE UPON WHICH THE DEFENDANT'S PETITION WAS FILED WITH THE
SECRETARY, AND THE DATE UPON WHICH NOTICE OF THE SECRETARY'S RULING
THEREON WAS GIVEN TO THE DEFENDANT IN ACCORDANCE WITH REGULATIONS
PRESCRIBED PURSUANT TO SUBSECTION (15)." 

"SEC. 8C(15)(A)  ANY HANDLER SUBJECT TO AN ORDER MAY FILE A WRITTEN
PETITION WITH THE SECRETARY OF AGRICULTURE, STATING THAT ANY SUCH ORDER
OR ANY PROVISION OF ANY SUCH ORDER OR ANY OBLIGATION IMPOSED IN
CONNECTION THEREWITH IS NOT IN ACCORDANCE WITH LAW AND PRAYING FOR A
MODIFICATION THEREOF OR TO BE EXEMPTED THEREFROM.  HE SHALL THEREUPON
BE GIVEN AN OPPORTUNITY FOR A HEARING UPON SUCH PETITION, IN ACCORDANCE
WITH REGULATIONS MADE BY THE SECRETARY OF AGRICULTURE, WITH THE
APPROVAL OF THE PRESIDENT.  AFTER SUCH HEARING, THE SECRETARY SHALL
MAKE A RULING UPON THE PRAYER OF SUCH PETITION WHICH SHALL BE FINAL, IF
IN ACCORDANCE WITH LAW. 

"(B)  THE DISTRICT COURTS OF THE UNITED STATES (INCLUDING THE SUPREME
COURT OF THE DISTRICT OF COLUMBIA) IN ANY DISTRICT IN WHICH SUCH
HANDLER IS AN INHABITANT, OR HAS HIS PRINCIPAL PLACE OF BUSINESS, ARE
HEREBY VESTED WITH JURISDICTION IN EQUITY TO REVIEW SUCH RULING,
PROVIDED A BILL IN EQUITY FOR THAT PURPOSE IS FILED WITHIN TWENTY DAYS
FROM THE DATE OF THE ENTRY OF SUCH RULING.  SERVICE OF PROCESS IN SUCH
PROCEEDINGS MAY BE HAD UPON THE SECRETARY BY DELIVERING TO HIM A COPY
OF THE BILL OF COMPLAINT.  IF THE COURT DETERMINES THAT SUCH RULING IS
NOT IN ACCORDANCE WITH LAW, IT SHALL REMAND SUCH PROCEEDINGS TO THE
SECRETARY WITH DIRECTIONS EITHER (1) TO MAKE SUCH RULING AS THE COURT
SHALL DETERMINE TO BE IN ACCORDANCE WITH LAW, OR (2) TO TAKE SUCH
FURTHER PROCEEDINGS AS, IN ITS OPINION, THE LAW REQUIRES.  THE PENDENCY
OF PROCEEDINGS INSTITUTED PURSUANT TO THIS SUBSECTION (15) SHALL NOT
IMPEDE, HINDER, OR DELAY THE UNITED STATES OR THE SECRETARY OF
AGRICULTURE FROM OBTAINING RELIEF PURSUANT TO SECTION 8A (6) OF THIS
TITLE.  ANY PROCEEDINGS BROUGHT PURSUANT TO SECTION 8A (6) OF THIS
TITLE (EXCEPT WHERE BROUGHT BY WAY OF COUNTERCLAIM IN PROCEEDINGS
INSTITUTED PURSUANT TO THIS SUBSECTION (15)) SHALL ABATE WHENEVER A
FINAL DECREE HAS BEEN RENDERED IN PROCEEDINGS BETWEEN THE SAME PARTIES,
AND COVERING THE SAME SUBJECT MATTER, INSTITUTED PURSUANT TO THIS
SUBSECTION (15)." 

FN5  SEC. 2, N. 4, SUPRA. 

FN6  SEC. 8C (3), N. 4, SUPRA. 

FN7  SEC. 8C (4), N. 4, SUPRA. 

FN8  SEE UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533, 549-50. 

FN9  "UNIFORM PRICE" MEANS WEIGHTED AVERAGE OF MINIMUM PRICES. 

FN10  THE PREAMBLE TO THE ORDER RECITES THE HOLDING OF HEARINGS AND
COMPLIANCE WITH SEC. 8C (9) OF THE ACT.  SECTION 904.0 OF THE ORDER
CONTAINS THE SECRETARY'S FINDINGS AND SEC. 904.1 THE DEFINITIONS OF
TERMS. 

"SEC. 904.1(6)  THE TERM 'HANDLER' MEANS ANY PERSON, IRRESPECTIVE OF
WHETHER SUCH PERSON IS A PRODUCER OR AN ASSOCIATION OF PRODUCERS,
WHEREVER LOCATED OR OPERATING, WHO ENGAGES IN SUCH HANDLING OF MILK,
WHICH IS SOLD AS MILK OR CREAM IN THE MARKETING AREA, AS IS IN THE
CURRENT OF INTERSTATE OR FOREIGN COMMERCE, OR WHICH DIRECTLY BURDENS,
OBSTRUCTS, OR AFFECTS INTERSTATE OR FOREIGN COMMERCE, IN MILK AND ITS
PRODUCTS." 

ACCORDING TO ITS UTILIZATION.  GENERALLY SPEAKING, CLASS I MILK IS THAT
WHICH IS UTILIZED FOR SALE AS MILK CONTAINING FROM 1/2 OF 1% TO 16%
BUTTERFAT OR AS CHOCOLATE OR FLAVORED MILK, WHILE CLASS II INCLUDES ALL
OTHER USES. 


"SEC. 904.4.  MINIMUM PRICES.  (A)  CLASS I PRICES TO PRODUCERS. 
EACH HANDLER SHALL PAY PRODUCERS, IN THE MANNER SET FORTH IN SEC.
904.8, FOR CLASS I MILK DELIVERED BY THEM, NOT LESS THAN THE FOLLOWING
PRICES: 

   .         .         .         .         . 

"(B)  CLASS II PRICES.  EACH HANDLER SHALL PAY PRODUCERS, IN THE
MANNER SET FORTH IN SEC. 904.8, FOR CLASS II MILK DELIVERED BY THEM NOT
LESS THAN THE FOLLOWING PRICES PER HUNDREDWEIGHT:  ...  " 

HANDLERS, AND SEC. 904.6 DEALS WITH THE APPLICATION OF THE ORDER TO
EXCEPTIONAL TYPES OF HANDLERS.  SECTION 904.7, DEALING WITH COMPUTATION
OF THE WEIGHTED AVERAGE, READ IN ITS APPLICABLE PORTIONS AS OF JULY 28,
1941, AS FOLLOWS: 

"SEC. 904.7.  DETERMINATION OF UNIFORM PRICES TO PRODUCERS. 

(A)  COMPUTATION OF VALUE OF MILK FOR EACH HANDLER.  FOR EACH
DELIVERY PERIOD THE MARKET ADMINISTRATOR SHALL COMPUTE  ...  THE VALUE
OF MILK SOLD, DISTRIBUTED, OR USED BY EACH HANDLER ...  IN THE
FOLLOWING MANNER: 

"(1)  MULTIPLY THE QUANTITY OF MILK IN EACH CLASS BY THE PRICE
APPLICABLE PURSUANT TO PARAGRAPHS (A), (B), AND (C), OF SEC. 904.4;
AND 

"(2)  ADD TOGETHER THE RESULTING VALUE OF EACH CLASS. 

"(B)  COMPUTATION AND ANNOUNCEMENT OF UNIFORM PRICES.  THE MARKET
ADMINISTRATOR SHALL COMPUTE AND ANNOUNCE THE UNIFORM PRICES PER
HUNDREDWEIGHT OF MILK DELIVERED DURING EACH DELIVERY PERIOD IN THE
FOLLOWING MANNER: 

"(1)  COMBINE INTO ONE TOTAL THE RESPECTIVE VALUES OF MILK, COMPUTED
PURSUANT TO PARAGRAPH (A) OF THIS SECTION, FOR EACH HANDLER FROM WHOM
THE MARKET ADMINISTRATOR HAS RECEIVED AT HIS OFFICE, PRIOR TO THE 11TH
DAY AFTER THE END OF SUCH DELIVERY PERIOD, THE REPORT FOR SUCH DELIVERY
PERIOD AND THE PAYMENTS REQUIRED BY SEC. 904.8(B)(3) AND (G) AND (H)
FOR MILK RECEIVED DURING EACH DELIVERY PERIOD SINCE THE EFFECTIVE DATE
OF THE MOST RECENT AMENDMENT HEREOF; 

     .         .         .         .         .    "(4)  SUBTRACT
THE TOTAL AMOUNT TO BE PAID TO PRODUCERS PURSUANT TO SEC. 904.8(B)(2); 

"(5)  SUBTRACT THE TOTAL OF PAYMENTS REQUIRED TO BE MADE FOR SUCH
DELIVERY PERIOD PURSUANT TO SEC. 904.9(B); 

"(6)  DIVIDE BY THE TOTAL QUANTITY OF MILK WHICH IS INCLUDED IN THESE
COMPUTATIONS.  ... 

"(7)  SUBTRACT NOT LESS THAN 4 CENTS NOR MORE THAN 5 CENTS FOR THE
PURPOSE OF RETAINING A CASH BALANCE IN CONNECTION WITH THE PAYMENTS SET
FORTH IN SEC. 904.8(B)(3); 

     .         .         .  .         . 

"(9)  ON THE 12TH DAY AFTER THE END OF EACH DELIVERY PERIOD, MAIL TO
ALL HANDLERS AND PUBLICLY ANNOUNCE (A) SUCH OF THESE COMPUTATIONS AS DO
NOT DISCLOSE INFORMATION CONFIDENTIAL PURSUANT TO THE ACT, (B) THE
BLENDED PRICE PER HUNDREDWEIGHT WHICH IS THE RESULT OF THESE
COMPUTATIONS, (C) THE NAMES OF THE HANDLERS WHOSE MILK IS INCLUDED IN
THE COMPUTATIONS, AND (D) THE CLASS II PRICE."  AS OF OCTOBER 28, 1941,
SUBSECTION (5) WAS REVOKED AND THE SUBSECTIONS FOLLOWING IT WERE
RENUMBERED, AND THE DEDUCTION THERETOFORE REQUIRED BY IT WAS EFFECTED
BY AMENDING SUBSECTION (7)(NEW SUBSECTION (6)) TO READ AS FOLLOWS: 

"(6)  SUBTRACT NOT LESS THAN 5 1/2 CENTS NOR MORE THAN 6 1/2 CENTS
FOR THE PURPOSE OF RETAINING A CASH BALANCE IN CONNECTION WITH THE
PAYMENTS SET FORTH IN SECS. 904.8(B)(3) AND 909.9(B);" SEE N. 16,
INFRA. 

READS: 

"SEC. 904.8 PAYMENTS FOR MILK.  (A) ADVANCE PAYMENTS.  ON OR BEFORE
THE 10TH DAY AFTER THE END OF EACH DELIVERY PERIOD, EACH HANDLER SHALL
MAKE PAYMENT TO PRODUCERS FOR THE APPROXIMATE VALUE OF MILK RECEIVED
DURING THE FIRST 15 DAYS OF SUCH DELIVERY PERIOD.  IN NO EVENT SHALL
SUCH ADVANCE PAYMENT BE AT A RATE LESS THAN THE CLASS II PRICE FOR SUCH
DELIVERY PERIOD. 

"(B)  FINAL PAYMENTS.  ON OR BEFORE THE 25TH DAY AFTER THE END OF
EACH DELIVERY PERIOD, EACH HANDLER SHALL MAKE PAYMENT, SUBJECT TO THE
BUTTERFAT DIFFERENTIAL SET FORTH IN PARAGRAPH (D) OF THIS SECTION, FOR
THE TOTAL VALUE OF MILK RECEIVED DURING SUCH DELIVERY PERIOD AS
REQUIRED TO BE COMPUTED PURSUANT TO SEC. 904.7(A), AS FOLLOWS: 

"(1) TO EACH PRODUCER, EXCEPT AS SET FORTH IN SUBPARAGRAPH (2) OF
THIS PARAGRAPH AT NOT LESS THAN THE BLENDED PRICE PER HUNDREDWEIGHT,
COMPUTED PURSUANT TO SEC. 904.7(B), SUBJECT TO THE DIFFERENTIALS SET
FORTH IN PARAGRAPH (E) OF THIS SECTION, FOR THE QUANTITY OF MILK
DELIVERED BY SUCH PRODUCER; 

"(2)  TO ANY PRODUCER, WHO DID NOT REGULARLY SELL MILK FOR A PERIOD
OF 30 DAYS PRIOR TO FEBRUARY 9, 1936, TO A HANDLER OR TO PERSONS WITHIN
THE MARKETING AREA, AT NOT LESS THAN THE CLASS II PRICE IN EFFECT FOR
THE PLANT AT WHICH SUCH PRODUCER DELIVERED MILK, EXCEPT THAT DURING THE
MAY, JUNE, AND SEPTEMBER DELIVERY PERIODS THE PRICE PURSUANT TO SEC.
904.4(B)(3) SHALL APPLY, FOR ALL THE MILK DELIVERED BY SUCH PRODUCER
DURING THE PERIOD BEGINNING WITH THE FIRST REGULAR DELIVERY OF SUCH
PRODUCER AND CONTINUING UNTIL THE END OF 2 FULL CALENDAR MONTHS
FOLLOWING THE FIRST DAY OF THE NEXT SUCCEEDING CALENDAR MONTH; AND 

"(3)  TO PRODUCERS, THROUGH THE MARKET ADMINISTRATOR, BY PAYING TO,
ON OR BEFORE THE 23RD DAY AFTER THE END OF EACH DELIVERY PERIOD, OR
RECEIVING FROM THE MARKET ADMINISTRATOR ON OR BEFORE THE 25TH DAY AFTER
THE END OF EACH DELIVERY PERIOD, AS THE CASE MAY BE, THE AMOUNT BY
WHICH THE PAYMENTS REQUIRED TO BE MADE PURSUANT TO SUBPARAGRAPHS (1)
AND (2) OF THIS PARAGRAPH ARE LESS THAN OR EXCEED THE VALUE OF MILK AS
REQUIRED TO BE COMPUTED FOR SUCH HANDLER PURSUANT TO SEC. 904.7(A), AS
SHOWN IN A STATEMENT RENDERED BY THE MARKET ADMINISTRATOR ON OR BEFORE
THE 20TH DAY AFTER THE END OF SUCH DELIVERY PERIOD." 

     .         .         .         .      . 

OTHER CLAUSES OF SEC. 904.8 DEAL WITH PRICE DIFFERENTIALS NOT HERE
PERTINENT. 

QUESTIONED HERE.  ELIGIBILITY REQUIREMENTS ARE SET OUT IN SEC.
904.9(A), WHICH THEN PROVIDES: 

"(1)  ANY SUCH COOPERATIVE ASSOCIATION SHALL RECEIVE AN AMOUNT
COMPUTED AT NOT MORE THAN THE RATE OF 1 1/2 CENTS PER HUNDREDWEIGHT OF
MILK MARKETED BY IT ON BEHALF OF ITS MEMBERS IN CONFORMITY WITH THE
PROVISION OF THIS ORDER, THE VALUE OF WHICH IS DETERMINED PURSUANT TO
SEC. 904.7(A), AND WITH RESPECT TO WHICH A HANDLER HAS MADE PAYMENTS AS
REQUIRED BY SEC. 904.8(B)(3) AND SEC. 904.10:  PROVIDED, THAT THE
AMOUNT PAID SHALL NOT EXCEED THE AMOUNT WHICH HANDLERS ARE OBLIGATED TO
DEDUCT FROM PAYMENTS TO MEMBERS UNDER SUBSECTION (E) HEREOF AND ARE NOT
USED IN PAYING PATRONAGE DIVIDENDS OR OTHER PAYMENTS TO MEMBERS WITH
RESPECT TO MILK DELIVERED EXCEPT IN FULFILLING THE GUARANTEE OF
PAYMENTS TO PRODUCERS; AND THAT IN CASES WHERE TWO OR MORE ASSOCIATIONS
PARTICIPATE IN THE MARKETING OF THE SAME MILK, PAYMENT UNDER THIS
PARAGRAPH SHALL BE AVAILABLE ONLY TO THE ASSOCIATION WHICH THE
INDIVIDUAL PRODUCER HAS MADE HIS EXCLUSIVE AGENT IN THE MARKETING OF
SUCH MILK. 

"(2)  ANY SUCH COOPERATIVE ASSOCIATION SHALL RECEIVE AN AMOUNT
COMPUTED AT THE RATE OF 5 CENTS PER HUNDREDWEIGHT ON CLASS I MILK
RECEIVED FROM PRODUCERS AT A PLANT OPERATED UNDER THE EXCLUSIVE CONTROL
OF MEMBER PRODUCERS, WHICH IS SOLD TO PROPRIETARY HANDLERS.  THIS
AMOUNT SHALL NOT BE RECEIVED ON MILK SOLD TO STORES, TO HANDLERS, IN
WHICH THE COOPERATIVE HAS ANY OWNERSHIP, OR TO A HANDLER WITH WHICH THE
COOPERATIVE HAS SUCH SALES ARRANGEMENTS THAT ITS MILK NOT SOLD AS CLASS
I MILK TO SUCH HANDLER IS NOT AVAILABLE FOR SALE AS CLASS I MILK TO
OTHER HANDLERS." 

BALANCE CREATED BY SEC. 904.7(B)(6), AS AMENDED, SUPRA. 


"(B)  PAYMENT TO QUALIFIED COOPERATIVE ASSOCIATIONS.  THE MARKET
ADMINISTRATOR SHALL, UPON CLAIM SUBMITTED IN FORM AS PRESCRIBED BY HIM,
MAKE PAYMENTS AUTHORIZED UNDER PARAGRAPH (A), OR ISSUE CREDIT THEREFOR
OUT OF THE CASH BALANCE CREDITED PURSUANT TO SEC. 904.7(B)(5), ON OR
BEFORE THE 25TH DAY AFTER THE END OF EACH DELIVERY PERIOD, SUBJECT TO
VERIFICATION OF THE RECEIPTS AND OTHER ITEMS ON WHICH THE AMOUNT OF
SUCH PAYMENT IS BASED." 

THE DEDUCTIONS FROM PAYMENTS BY HANDLERS TO COOPERATIVE MEMBER
PRODUCERS, REFERRED TO IN SEC. 904.9(A)(1), QUOTED SUPRA, ARE
AUTHORIZED BY SEC. 904.9(E), AS FOLLOWS: 

"(E)  AUTHORIZED MEMBER DEDUCTIONS.  IN THE CASE OF PRODUCERS WHOSE
MILK IS RECEIVED AT A PLANT NOT OPERATED BY A COOPERATIVE ASSOCIATION
OF WHICH SUCH PRODUCERS ARE MEMBERS AND WHICH IS RECEIVING PAYMENTS
PURSUANT TO THIS SECTION, EACH HANDLER SHALL MAKE SUCH DEDUCTIONS FROM
THE PAYMENTS TO BE MADE TO SUCH PRODUCERS PURSUANT TO SEC. 904.8 AS MAY
BE AUTHORIZED BY SUCH PRODUCERS AND, ON OR BEFORE THE 25TH DAY AFTER
THE END OF EACH DELIVERY PERIOD, PAY OVER SUCH DEDUCTIONS TO THE
ASSOCIATION IN WHOSE FAVOR SUCH AUTHORIZATIONS WERE MADE." 

ADMINISTRATOR NOT MORE THAN 2 CENTS PER HUNDREDWEIGHT OF MILK DELIVERED
TO HIM IN ORDER TO MEET COSTS OF ADMINISTRATION.  SECTION 904.11 COVERS
THE EFFECTIVE TIME, SUSPENSION, OR TERMINATION OF THE ORDER. 

FN11  "BLENDED PRICE" MEANS THE UNIFORM PRICE LESS ADMINISTRATIVE
DEDUCTIONS. 

FN12  CF. 7 C.F.R. 1941 SUPP. SEC. 904.7(A). 

FN13  SEE 7 C.F.R. 1941 SUPP. SEC. 904.7(B). 

FN14  7 C.F.R. 1941 SUPP. SECS. 904.7(B), 904.8(B)(1). 

FN15  7 C.F.R. 1941 SUPP. SEC. 904.8(B)(3).  THE OPERATIONS OF THE
SETTLEMENT FUND ARE DESCRIBED IN UNITED STATES V. ROCK ROYAL CO-OP.,
307 U.S. 533, 571. 

FN16  THIS SECTION HAS SUPERSEDED SEC. 904.7(B)(5) IN EFFECT AT THE
TIME THIS SUIT WAS BROUGHT WITH REFERENCE TO THE DEDUCTION IN ISSUE.  6
F.R. 5482, EFFECTIVE OCTOBER 28, 1941.  SEE N. 10, SUPRA. 

FN17  TEXAS & N.O.R. CO. V. BROTHERHOOD OF CLERKS, 281 U.S. 548, 568;
VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 545.  GENERAL
COMMITTEE V. M.-K.-T.R. CO., 320 U.S. 323, AND SWITCHMEN'S UNION V.
MEDIATION BOARD, 320 U.S. 297, DO NOT LOOK IN THE CONTRARY DIRECTION. 
BOTH ASSUME CLAIMS CREATED BY STATUTE IN THE PETITIONERS AND DENY A
JUDICIAL REMEDY TO THOSE CLAIMS ON THE GROUND THAT "CONGRESS  ...  HAS
FORECLOSED RESORT TO THE COURTS FOR ENFORCEMENT OF THE CLAIMS ASSERTED
BY THE PARTIES."  320 U.S. 300 AND 327. 

FN18  UNITED STATES V. ILLINOIS CENTRAL R. CO., 244 U.S. 82, 87;
UNITED STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299, 314-15;
ALABAMA POWER CO. V. ICKES, 302 U.S. 464, 478; TENNESSEE POWER CO. V.
T.V.A., 306 U.S. 118, 135; PERKINS V. LUKENS STEEL CO., 310 U.S. 113,
125; SINGER & SONS V. UNION PACIFIC R. CO., 311 U.S. 295, 303. 

FN19  THIS DISTINCTION HAS LONG BEEN RECOGNIZED.  CHIEF JUSTICE
MARSHALL PHRASED IT IN VIVID LANGUAGE AS EARLY AS MARBURY V. MADISON, 1
CRANCH 137, 165-66, A FRAGMENT ONLY OF WHICH FOLLOWS: "BUT WHERE A
SPECIFIC DUTY IS ASSIGNED BY LAW, AND INDIVIDUAL RIGHTS DEPEND UPON THE
PERFORMANCE OF THAT DUTY, IT SEEMS EQUALLY CLEAR THAT THE INDIVIDUAL
WHO CONSIDERS HIMSELF INJURED, HAS A RIGHT TO RESORT TO THE LAWS OF HIS
COUNTRY FOR A REMEDY."  PERKINS V. LUKENS STEEL CO., 310 U.S 113, 125;
MASSACHUSETTS V. MELLON, 262 U.S. 447, 488. 

FN20  PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 619; AMERICAN SCHOOL
OF MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94, 110. 

FN21  TENNESSEE POWER CO. V. T.V.A., 306 U.S. 118, 137. 

FN22  MARBURY V. MADISON, 1 CRANCH 137, 165; AMERICAN SCHOOL OF
MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94, 109-10; INTERSTATE COMMERCE
COMM'N V. UNION PACIFIC R. CO., 222 U.S. 541, 547; INTERNATIONAL RY.
CO. V. DAVIDSON, 257 U.S. 506, 514; MORGAN V. UNITED STATES, 298 U.S.
468, 479; UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP., 315 U.S.
475, 489; COMMISSIONER V. GOOCH MILLING & ELEVATOR CO., 320 U.S. 418. 

MR. JUSTICE BLACK IS OF THE VIEW THAT THE JUDGMENT SHOULD BE AFFIRMED
FOR THE REASONS GIVEN IN THE OPINION OF THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

THE IMMEDIATE ISSUE BEFORE US IS WHETHER THESE PLAINTIFFS, MILK
PRODUCERS, CAN IN THE CIRCUMSTANCES OF THIS CASE GO TO COURT TO
COMPLAIN OF AN ORDER BY THE SECRETARY OF AGRICULTURE FIXING RATES FOR
THE DISTRIBUTION OF MILK WITHIN THE GREATER BOSTON MARKETING AREA.  THE
SOLUTION OF THAT QUESTION DEPENDS, HOWEVER, UPON A PROPER APPROACH
TOWARD SUCH A SCHEME OF LEGISLATION AS THAT FORMULATED BY CONGRESS IN
THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937. 

APART FROM LEGISLATION TOUCHING THE REVENUE, THE PUBLIC DOMAIN,
NATIONAL BANKS AND PATENTS, NOT UNTIL THE INTERSTATE COMMERCE ACT OF
1887 DID CONGRESS BEGIN TO PLACE ECONOMIC ENTERPRISE UNDER SYSTEMS OF
ADMINISTRATIVE CONTROL.  THESE REGULATORY SCHEMES HAVE VARIED IN THE
RANGE OF CONTROL EXERCISED BY GOVERNMENT; THEY HAVE VARIED NO LESS IN
THE PROCEDURES BY WHICH THE CONTROL WAS EXERCISED.  MORE PARTICULARLY,
THESE REGIMES OF NATIONAL AUTHORITY OVER PRIVATE ENTERPRISE REVEAL
GREAT DIVERSITY IN THE ALLOTMENT OF POWER BY CONGRESS AS BETWEEN COURTS
AND ADMINISTRATIVE AGENCIES.  CONGRESS HAS NOT MADE UNIFORM PROVISIONS
IN DEFINING WHO MAY GO TO COURT, FOR WHAT GRIEVANCE, AND UNDER WHAT
CIRCUMSTANCES, IN SEEKING RELIEF FROM ADMINISTRATIVE DETERMINATIONS. 
QUITE THE CONTRARY.  IN THE SUCCESSIVE ENACTMENTS BY WHICH CONGRESS HAS
ESTABLISHED ADMINISTRATIVE AGENCIES AS MAJOR INSTRUMENTS OF REGULATION,
THERE IS THE GREATEST CONTRARIETY IN THE EXTENT TO WHICH, AND THE
PROCEDURES BY WHICH, DIFFERENT MEASURES OF CONTROL AFFORD JUDICIAL
REVIEW OF ADMINISTRATIVE ACTION. 

EXCEPT IN THOSE RARE INSTANCES, AS IN A CLAIM OF CITIZENSHIP IN
DEPORTATION PROCEEDINGS, WHEN A JUDICIAL TRIAL BECOMES A CONSTITUTIONAL
REQUIREMENT BECAUSE OF "THE DIFFERENCE IN SECURITY OF JUDICIAL OVER
ADMINISTRATIVE ACTION," NG FUNG HO V. WHITE, 259 U.S. 276, 285, WHETHER
JUDICIAL REVIEW IS AVAILABLE AT ALL, AND, IF SO, WHO MAY INVOKE IT,
UNDER WHAT CIRCUMSTANCES, IN WHAT MANNER, AND TO WHAT END, ARE
QUESTIONS THAT DEPEND FOR THEIR ANSWER UPON THE PARTICULAR ENACTMENT
UNDER WHICH JUDICIAL REVIEW IS CLAIMED.  RECOGNITION OF THE CLAIM TURNS
ON THE PROVISIONS DEALING WITH JUDICIAL REVIEW IN A PARTICULAR STATUTE
AND ON THE SETTING OF SUCH PROVISIONS IN THAT STATUTE AS PART OF A
SCHEME FOR ACCOMPLISHING THE PURPOSES EXPRESSED BY THAT STATUTE.  APART
FROM THE TEXT AND TEXTURE OF A PARTICULAR LAW IN RELATION TO WHICH
JUDICIAL REVIEW IS SOUGHT, "JUDICIAL REVIEW" IS A MISCHIEVOUS
ABSTRACTION.  THERE IS NO SUCH THING AS A COMMON LAW OF JUDICIAL REVIEW
IN THE FEDERAL COURTS.  THE PROCEDURAL PROVISIONS IN MORE THAN A SCORE
OF THESE REGULATORY MEASURES PROVE THAT THE MANNER IN WHICH CONGRESS
HAS DISTRIBUTED RESPONSIBILITY FOR THE ENFORCEMENT OF ITS LAWS BETWEEN
COURTS AND ADMINISTRATIVE AGENCIES RUNS A GAMUT ALL THE WAY FROM
AUTHORIZING A JUDICIAL TRIAL DE NOVO OF A CLAIM DETERMINED BY THE
ADMINISTRATIVE AGENCY TO DENYING ALL JUDICIAL REVIEW AND MAKING
ADMINISTRATIVE ACTION DEFINITIVE. 

CONGRESS HAS NOT ONLY DEVISED DIFFERENT SCHEMES OF ENFORCEMENT FOR
DIFFERENT ACTS.  IT HAS FROM TIME TO TIME MODIFIED AND RESTRICTED THE
SCOPE OF REVIEW UNDER THE SAME ACT.  COMPARE SEC. 16 OF THE ACT TO
REGULATE COMMERCE, FEBRUARY 4, 1887, C. 104, 24 STAT. 379, 384-385,
WITH SEC. 13 OF THE COMMERCE COURT ACT, JUNE 18, 1910, C. 309, 36 STAT.
539, 554-5, AND 49 U.S.C. SEC. 16(12), AND THE LATTER WITH ENFORCEMENT
OF REPARATION ORDERS, 49 U.S.C SEC. 16(2).  MOREOVER THE SAME STATUTE,
AS IS TRUE OF THE INTERSTATE COMMERCE ACT, MAY MAKE SOME ORDERS NOT
JUDICIALLY REVIEWABLE FOR ANY PURPOSE, SEE E.G., UNITED STATES V. LOS
ANGELES & S.L.R. CO., 273 U.S. 299, OR REVIEWABLE BY SOME WHO ARE
ADVERSELY AFFECTED AND NOT BY OTHERS, E.G., SINGER & SONS V. UNION
PACIFIC R. CO., 311 U.S. 295, 305-308.  THE OLDEST SCHEME OF
ADMINISTRATIVE CONTROL - OUR CUSTOMS REVENUE LEGISLATION - SHOWS IN ITS
EVOLUTION ALL SORTS OF PERMUTATIONS AND COMBINATIONS IN USING AVAILABLE
ADMINISTRATIVE AND JUDICIAL REMEDIES.  SEE, FOR INSTANCE, ELLIOTT V.
SWARTWOUT, 10 PET. 137; CARY V. CURTIS, 3 HOW.  236; MURRAY'S LESSEE V.
HOBOKEN LAND CO., 18 HOW.  272; HILTON V. MERRITT, 110 U.S. 97; FOR A
GENERAL SURVEY, SEE FREUND, ADMINISTRATIVE POWERS OVER PERSONS AND
PROPERTY, SECS. 260-62.  AND ONLY THE OTHER DAY WE FOUND THE
IMPLICATIONS OF THE RAILWAY LABOR ACT (C. 347, 44 STAT. (PART 2) 577,
AS AMENDED, C. 691, 48 STAT. 1185, 45 U.S.C. SEC. 151 ET SEQ.) TO BE
SUCH THAT COURTS COULD NOT EVEN EXERCISE THE FUNCTION OF KEEPING THE
NATIONAL MEDIATION BOARD WITHIN ITS STATUTORY AUTHORITY.  SWITCHMEN'S
UNION V. MEDIATION BOARD, 320 U.S. 297.  WERE THIS LIST OF
ILLUSTRATIONS EXTENDED AND THE VARIOUS REGULATORY SCHEMES THROWN INTO A
HOTCHPOT, THE RESULT WOULD BE HOPELESS DISCORD.  AND TO DO SO WOULD BE
TO TREAT THESE LEGISLATIVE SCHEMES AS THOUGH THEY WERE PART OF A SINGLE
BODY OF LAW INSTEAD OF EACH BEING A SELF-CONTAINED SCHEME. 

THE DIVERS ROLES PLAYED BY JUDICIAL REVIEW IN THE ADMINISTRATION OF
REGULATORY MEASURES OTHER THAN THE AGRICULTURAL MARKETING ACT CANNOT
TELL US WHEN AND FOR WHOM JUDICIAL REVIEW OF ADMINISTRATIVE ACTION CAN
BE HAD UNDER THAT ACT.  THE FACT THAT CERTAIN CLASSES OF INDIVIDUALS
ADVERSELY AFFECTED BY A RULING OF THE INTERSTATE COMMERCE COMMISSION
CAN AND OTHER CLASSES CANNOT OBTAIN REDRESS IN COURT, DOES NOT TELL US
WHAT CLASSES MAY AND WHAT CLASSES MAY NOT OBTAIN JUDICIAL REDRESS FOR
ACTION BY THE SECRETARY OF AGRICULTURE WHICH AFFECTS THESE RESPECTIVE
CLASSES ADVERSELY.  AND TO CITE THE SWITCHMEN'S CASE, SUPRA, IN SUPPORT
OF THIS CASE IS TO TREAT OUR DECISIONS TOO LIGHTLY.  IN THE NUMEROUS
CASES EITHER GRANTING OR DENYING JUDICIAL REVIEW, GRANT OR DENIAL WAS
REACHED NOT BY APPLYING SOME "NATURAL LAW" OF JUDICIAL REVIEW NOR ON
THE BASIS OF SOME GENERAL BODY OF DOCTRINES FOR CONSTRUING THE DIVERSE
PROVISIONS OF THE GREAT VARIETY OF FEDERAL REGULATORY STATUTES. 
JUDICIAL REVIEW WHEN RECOGNIZED - ITS SCOPE AND ITS INCIDENCE - WAS
DERIVED FROM THE MATERIALS FURNISHED BY THE PARTICULAR STATUTE IN
REGARD TO WHICH THE OPPORTUNITY FOR JUDICIAL REVIEW WAS ASSERTED.  THIS
IS THE LESSON TO BE DRAWN FROM THE PRIOR DECISIONS OF THIS COURT ON
JUDICIAL REVIEW, AND NOT ANY DOCTRINAIRE NOTIONS OF GENERAL
APPLICABILITY TO STATUTES BASED ON DIFFERENT SCHEMES OF ADMINISTRATION
AND CONVEYING DIFFERENT PURPOSES BY CONGRESS IN THE UTILIZATION OF
ADMINISTRATIVE AND JUDICIAL REMEDIES FOR THE ENFORCEMENT OF LAW. 
HOWEVER USEFUL JUDICIAL REVIEW MAY BE, IT IS FOR CONGRESS AND NOT FOR
THIS COURT TO DECIDE WHEN IT MAY BE USED - EXCEPT WHEN THE CONSTITUTION
COMMANDS IT.  IN THIS CASE THERE IS NO SUCH COMMAND.  COMMON-LAW
REMEDIES WITHHELD BY CONGRESS AND UNRELATED TO A NEW SCHEME FOR
ENFORCING NEW RIGHTS AND DUTIES SHOULD NOT BE ENGRAFTED UPON REMEDIES
WHICH CONGRESS SAW FIT TO PARTICULARIZE.  TO DO SO IMPLIEDLY DENIES TO
CONGRESS THE CONSTITUTIONAL RIGHT OF CHOICE IN THE SELECTION OF
REMEDIES, AND TURNS COMMON-LAW REMEDIES INTO CONSTITUTIONAL NECESSITIES
SIMPLY BECAUSE THEY ARE OLD AND FAMILIAR. 

WHEN RECENTLY THE AGRICULTURAL MARKETING ACT WAS IN LITIGATION BEFORE
US, WE SUSTAINED ITS CONSTITUTIONALITY AND DEFINED ITS SCOPE IN THE
LIGHT OF ITS HISTORY, ITS PURPOSES AND ITS PROVISIONS.  UNITED STATES
V. ROCK ROYAL CO-OP., 307 U.S. 533.  WE HELD IN THAT CASE THAT A MILK
HANDLER CANNOT CHALLENGE IN COURT SUCH AN ORDER AS THE ONE WHICH IS NOW
ASSAILED.  AGAIN WE MUST TURN TO THE HISTORY, THE PURPOSES AND THE
PROVISIONS OF THE ACT TO DETERMINE WHETHER CONGRESS GAVE THE PRODUCER
THE RIGHT OF JUDICIAL RELIEF HERE SOUGHT. 

IN 1931 AND 1932, PRICES OF MANUFACTURED DAIRY PRODUCTS REACHED THE
LOWEST LEVEL IN TWENTY-FIVE YEARS.  BECAUSE OF THEIR RELATIVELY WEAK
BARGAINING POSITION, MILK PRODUCERS SUFFERED MOST SERIOUSLY.  SEE
MORTENSON, MILK DISTRIBUTION AS A PUBLIC UTILITY, P. 6; BLACK, THE
DAIRY INDUSTRY AND THE AAA, C. III; STATE MILK AND DAIRY LEGISLATION
(U.S. GOV'T PRINTING OFFICE, 1941) P. 3.  ACCORDINGLY, CONGRESS DECIDED
THAT THE PUBLIC INTEREST IN THE HANDLING OF MILK IN INTERSTATE COMMERCE
COULD NO LONGER BE LEFT TO THE HAGGLING OF A DISORDERLY MARKET,
MITIGATED BY INADEQUATE ORGANIZATION WITHIN THE INDUSTRY.  THE
AGRICULTURAL ADJUSTMENT ACT OF 1933(C. 25, 48 STAT. 31) WAS THE
RESULT.  THE "ESSENTIAL PURPOSE" OF THE SERIES OF ENACTMENTS THUS
INITIATED WAS TO RAISE THE PRODUCER'S PRICES.  SEN. REP. NO. 1011, 74TH
CONG., 3D SESS., P. 3.  THE ACT OF 1933 WAS AMENDED IN 1935(C. 641, 49
STAT. 750), AND PARTIALLY REENACTED AND AMENDED BY THE AGRICULTURAL
MARKETING AGREEMENT ACT OF 1937, WITH WHICH WE ARE HERE CONCERNED.  C.
296, 50 STAT. 246, C. 567, 50 STAT. 563, 7 U.S.C. SEC. 601 ET SEQ. 

AN ELABORATE ENACTMENT LIKE THIS, DEVISED BY THOSE WHO KNOW THE NEEDS
OF THE INDUSTRY AND DRAFTED BY LEGISLATIVE SPECIALISTS, IS TO BE
TREATED AS AN ORGANISM.  EVERY PART MUST BE RELATED TO THE SCHEME AS A
WHOLE.  THE LEGISLATION IS A SELF-CONTAINED CODE, AND WITHIN IT MUST BE
FOUND WHATEVER REMEDIES CONGRESS SAW FIT TO AFFORD.  FOR THE ACT DID
NOT GIVE NEW REMEDIES FOR OLD RIGHTS.  IT CREATED NEW RIGHTS AND NEW
DUTIES, AND PRECISELY DEFINED THE REMEDIES FOR THE ENFORCEMENT OF
DUTIES AND THE VINDICATION OF RIGHTS.  OF COURSE THE STATUTE CONCERNS
THE INTERESTS OF PRODUCERS, HANDLERS AND CONSUMERS.  BUT IT DOES NOT
DEFINE OR CREATE ANY LEGAL INTEREST FOR THE CONSUMER, AND IT
SPECIFICALLY PROVIDES THAT "NO ORDER ISSUED UNDER THIS TITLE SHALL BE
APPLICABLE TO ANY PRODUCER IN HIS CAPACITY AS PRODUCER."  SEC. 8C
(13)(B). 

THE STATUTE AS AN ENTIRETY MAKES IT CLEAR THAT OBLIGATIONS ARE
IMPOSED ON HANDLERS ALONE.  SECTION 8C (5)(A) AUTHORIZES THE SECRETARY
TO CLASSIFY MILK ACCORDING TO THE FORM IN WHICH OR THE PURPOSE FOR
WHICH IT IS USED.  SECTION 8C (5)(B)(II) DIRECTS THE SECRETARY TO
PROVIDE FOR THE PAYMENT TO PRODUCERS OF A UNIFORM PRICE "IRRESPECTIVE
OF THE USES MADE OF SUCH MILK BY THE INDIVIDUAL HANDLER TO WHOM IT IS
DELIVERED."  THIS LATTER, KNOWN AS THE "BLENDED PRICE," IS COMPUTED
UNDER THE SECRETARY'S ORDER NO. 4 OF JULY 28, 1941, BY MULTIPLYING THE
USE VALUE OF THE MILK BY THE TOTAL QUANTITY, MAKING SPECIFIED
DEDUCTIONS AND ADDITIONS, AND THEN DIVIDING THE RESULTING SUM BY THE
TOTAL QUANTITY OF THE MILK.  SEC. 904.7(B).  A DEDUCTION FOR PAYMENTS
TO COOPERATIVES WHICH ENTERS INTO THIS COMPUTATION IS THE OBJECT OF
PETITIONER'S ATTACK. 

IT IS APPARENT THAT THE MINIMUM "BLENDED PRICE" WHICH THE PRODUCER
RECEIVES MAY BE DIFFERENT THAN THE MINIMUM "USE VALUE" FIXED BY THE
SECRETARY OR HIS ADMINISTRATOR WHICH THE HANDLER MUST PAY.  THUS SEC.
8C (5)(C) AUTHORIZES PROVISION FOR NECESSARY ADJUSTMENTS.  THE
MECHANICS OF THESE ADJUSTMENTS ARE DESCRIBED IN THE SECRETARY'S ORDER
NO. 4.  IN SHORT, THE HANDLER WHO SELLS OR USES HIS MILK SO THAT ITS
VALUE IS MORE THAN THE MINIMUM "BLENDED PRICE" HE PAYS THE PRODUCER,
MUST PAY THE EXCESS TO A SETTLEMENT FUND, AND THE HANDLER WHO PUTS HIS
MILK TO A LOWER VALUE USE THAN THE MINIMUM "BLENDED PRICE" HE PAYS IN
TURN RECEIVES THE DIFFERENCE OUT OF THE FUND.  SEC. 904.8(B). 

VIOLATION OF ANY ORDER BY A HANDLER MAKES HIM SUBJECT TO CRIMINAL
PROCEEDINGS.  SEC. 8C (14).  THUS, WHILE THE ACT AND THE ORDER MAY
AFFECT THE INTERESTS OF PRODUCERS AS WELL AS THOSE OF HANDLERS, LEGALLY
THEY OPERATE DIRECTLY AGAINST HANDLERS ONLY.  THE CORRECTIVE PROCESSES
PROVIDED BY THE ACT REFLECT THIS SITUATION.  SECTION 8C (15) PERMITS A
HANDLER TO CHALLENGE AN ORDER BEFORE THE SECRETARY, AND IF
DISSATISFIED, HE MAY BRING SUIT IN EQUITY BEFORE A DISTRICT COURT. 
PROVISION FOR JUDICIAL REMEDIES FOR CONSUMERS AND PRODUCERS IS
SIGNIFICANTLY ABSENT.  SUCH OMISSION IS NEITHER INADVERTENT NOR
SURPRISING.  IT WOULD BE MANIFESTLY INCONGRUOUS FOR AN ACT WHICH
SPECIFICALLY PROVIDES THAT NO ORDER SHALL BE DIRECTED AT PRODUCERS TO
GIVE TO PRODUCERS THE RIGHT TO ATTACK THE VALIDITY OF SUCH AN ORDER IN
COURT. 

TO CREATE A JUDICIAL REMEDY FOR PRODUCERS WHEN THE STATUTE GAVE NONE
IS TO DISLOCATE THE CONGRESSIONAL SCHEME OF ENFORCEMENT.  FOR EXAMPLE,
SEC. 8C (15)(B) PROVIDES THAT THE PENDENCY OF A PROCEEDING FOR REVIEW
INSTITUTED BY A HANDLER SHALL NOT IMPEDE OR DELAY PROCEEDINGS BROUGHT
UNDER SEC. 8A (6) FOR COMPLIANCE WITH AN ORDER.  BECAUSE THERE IS NO
PROVISION FOR COURT REVIEW OF AN ORDER ON A PRODUCER'S POSITION
NATURALLY THERE IS NO CORRESPONDING PROVISION TO GUARD AGAINST SUCH
INTERFERENCE WITH ENFORCEMENT OF AN ORDER.  BY GIVING PRODUCERS THE
RIGHT TO SUE ALTHOUGH CONGRESS WITHHELD THAT RIGHT, THE SUSPENSION OF A
MILK ORDER PENDING DISPOSITION OF A PRODUCER'S SUIT WILL NOW DEPEND
UPON THE DISCRETION OF TRIAL JUDGES.  AND TECHNICAL DETAILS CONCERNING
THE MILK INDUSTRY THAT WERE COMMITTED TO THE SECRETARY OF AGRICULTURE
ARE NOW MADE SUBJECTS OF LITIGATION BEFORE ILL-EQUIPPED COURTS. 

BY DENYING THEM ACCESS TO THE COURTS CONGRESS HAS NOT LEFT PRODUCERS
TO THE MERCY OF THE SECRETARY OF AGRICULTURE.  CONGRESS MERELY HAS
DEVISED MEANS OTHER THAN JUDICIAL FOR THE EFFECTIVE EXPRESSION OF
PRODUCERS' INTERESTS IN THE TERMS OF AN ORDER.  BEFORE THE SECRETARY
MAY ISSUE AN ORDER HE IS REQUIRED TO "GIVE DUE NOTICE OF AND AN
OPPORTUNITY FOR A HEARING UPON A PROPOSED ORDER."  SEC. 8C (3).  AT
SUCH A HEARING ALL INTERESTED PERSONS MAY SUBMIT RELEVANT EVIDENCE, AND
THE PROCEDURE MAKES ADEQUATE PROVISION FOR NOTICE TO THOSE WHO MAY BE
AFFECTED BY AN ORDER.  SEE ADMINISTRATIVE PROCEDURE AND PRACTICE IN THE
DEPARTMENT OF AGRICULTURE UNDER THE AGRICULTURAL MARKETING AGREEMENT
ACT OF 1937(U.S. DEPARTMENT OF AGRICULTURE, 1939), P. 11 ET SEQ. NOR
ARE THESE THE ONLY OR THE MOST EFFECTIVE MEANS FOR SAFEGUARDING THE
PRODUCER'S INTEREST.  WHILE AN ORDER MAY BE ISSUED DESPITE THE
OBJECTION OF HANDLERS OF MORE THAN 50% OF THE VOLUME OF THE COMMODITY
COVERED BY THE ORDER, NO ORDER MAY ISSUE WHEN NOT APPROVED BY AT LEAST
TWO-THIRDS - EITHER NUMERICALLY OR ACCORDING TO VOLUME OF PRODUCTION -
OF THE PRODUCERS.  SEC. 8C (9). 

THE FACT THAT CONGRESS MADE SPECIFIC PROVISION FOR SUBMISSION OF SOME
DEFINED QUESTIONS TO JUDICIAL REVIEW WOULD HARDLY APPEAR TO BE AN
ARGUMENT FOR INFERRING THAT JUDICIAL REVIEW EVEN OF BROADER SCOPE IS
ALSO OPEN AS TO OTHER QUESTIONS FOR WHICH CONGRESS DID NOT PROVIDE
JUDICIAL REVIEW.  THE OBVIOUS CONCLUSION CALLED FOR IS THAT AS TO SUCH
OTHER QUESTIONS, JUDICIAL REVIEW WAS PURPOSEFULLY WITHHELD.  IN THE
FRAME OF THIS STATUTE SUCH AN OMISSION SHOULD NOT BE TREATED AS HAVING
NO MEANING, OR RATHER AS MEANING THAT AN OMISSION IS TO BE GIVEN THE
SAME EFFECT AS AN INCLUSION.  NOR DOES SEC. 8A (8) REFERRING TO
REMEDIES "EXISTING AT LAW OR IN EQUITY" TOUCH OUR PROBLEM.  THAT ONLY
ADDS TO THE REMEDIES IN SEC. 8A (5)-(7) FOR THE ENFORCEMENT OF THE
ACT.  IT IN NO WAY QUALIFIES OR EXPANDS THE EXPRESS PROVISIONS OF THE
STATUTE IN SEC. 8C (15) FOR JUDICIAL REVIEW OF SUCH AN ORDER AS THE
PRESENT - SPECIFICATION OF THE CLASS OF PERSONS WHO ARE GIVEN THE RIGHT
TO RESORT TO COURTS AND NARROW LIMITATION OF THE SCOPE OF JUDICIAL
REVIEW.  THE REMEDY OF REVIEW HERE SOUGHT BY PRODUCERS IS BY SEC. 8C
(15) EXPLICITLY RESTRICTED TO HANDLERS; AND SUCH REVIEW IS NOT LIKE
THAT BEFORE THE COURT, A CONVENTIONAL SUIT IN EQUITY, BUT IS A
PROCEDURE FOR REVIEW OF AN ADVERSE RULING IN A PRICE PROCEEDING BEFORE
THE SECRETARY OF AGRICULTURE.  IT IS A REVIEW OF AN ADMINISTRATIVE
REVIEW, NOT AN INDEPENDENT JUDICIAL DETERMINATION. 

AN ELABORATE PROCESS OF IMPLICATIONS SHOULD NOT BE INVENTED TO ESCAPE
THE PLAIN MEANING OF SEC. 8C (15), AND TO DISLOCATE A CAREFULLY
FORMULATED SCHEME OF ENFORCEMENT.  THAT IS NOT THE WAY TO CONSTRUE SUCH
LEGISLATION, THAT IS, IF CHIEF JUSTICE TAFT WAS RIGHT IN CHARACTERIZING
AS "A CONSPICUOUS INSTANCE OF HIS (CHIEF JUSTICE WHITE'S) UNUSUAL AND
REMARKABLE POWER AND FACILITY IN STATESMANLIKE INTERPRETATION OF
STATUTE LAW," 257 U.S. XXV, THE DOCTRINE ESTABLISHED IN TEXAS & PACIFIC
RY. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, AND MORE PARTICULARLY
THE WAY IN WHICH SEC. 22 OF THE ACT TO REGULATE COMMERCE WAS THEREIN
CONSTRUED TO EFFECTUATE THE PURPOSES OF THAT ACT.  204 U.S. AT 446
447. 

THE COURT IS THUS ADDING TO WHAT CONGRESS HAS WRITTEN A PROVISION FOR
JUDICIAL RELIEF OF PRODUCERS.  AND IT SANCTIONS SUCH RELIEF IN A CASE
IN WHICH PETITIONERS HAVE NO STANDING TO SUE ON ANY THEORY.  THE ONLY
EFFECT OF THE DEDUCTION WHICH IS CHALLENGED BY THE PRODUCERS IS TO FIX
A MINIMUM PRICE TO WHICH THEY ARE ENTITLED PERHAPS LOWER THAN THAT
WHICH MIGHT OTHERWISE HAVE BEEN DETERMINED.  BUT THE ACT DOES NOT
PREVENT THEIR BARGAINING FOR A PRICE HIGHER THAN THE MINIMUM, AND WE
ARE ADVISED BY THE GOVERNMENT OF WHAT IS NOT DENIED BY PETITIONERS,
THAT SUCH ARRANGEMENTS ARE BY NO MEANS UNUSUAL.  THIS COURT HAS HELD
THAT A CONSUMER HAS NO STANDING TO CHALLENGE A MINIMUM PRICE ORDER LIKE
THE ONE BEFORE US.  ATLANTA V. ICKES, 308 U.S. 517; CF. SPRUNT & SON V.
UNITED STATES, 281 U.S. 249.  SURELY A PRODUCER WHO MAY BARGAIN FOR
PRICES ABOVE THE MINIMUM IS IN NO BETTER LEGAL POSITION THAN A CONSUMER
WHO URGES THAT TOO HIGH A MINIMUM HAS BEEN IMPROPERLY FIXED.  THE
COMMONWEALTH OF MASSACHUSETTS WHICH PURCHASED MILK FOR ITS PUBLIC
INSTITUTIONS VALUED AT $105,232.97 IN 1940, AND $117,584.50 IN 1941,
HAS HARDLY A LESS SUBSTANTIAL INTEREST IN THE MINIMUM PRICE THAN THAT
OF THE PETITIONERS.  AND YET MASSACHUSETTS HAS NO STANDING TO OBJECT TO
THE MINIMUM FIXED BY AN ORDER. 

THE ALLEGED LOWER MINIMUM "BLENDED PRICE" IS THE SUM AND SUBSTANCE OF
PETITIONERS' COMPLAINT.  IF THAT GIVES THEM NO STANDING TO SUE NOTHING
DOES.  AN ATTACK MERELY ON THE METHOD BY WHICH THE BLENDED PRICE WAS
REDUCED MAY PRESENT AN INTERESTING ABSTRACT QUESTION BUT FURNISHES NO
LEGAL RIGHT TO SUE.  THE PRODUCERS HAVE NOTHING TO DO WITH THE
SETTLEMENT FUND.  THEY RECEIVE THE BLENDED PRICE IN ANY EVENT.  EVEN
ASSUMING THAT THE ADMINISTRATOR MAY HAVE FIXED A BLENDED PRICE IN WAYS
THAT MAY ARGUE AN INCONSISTENCY BETWEEN WHAT HE HAS DONE AND WHAT
CONGRESS TOLD HIM TO DO, ANY RESULTING DISADVANTAGE TO A PRODUCER IS
WHOLLY UNRELATED TO THE SETTLEMENT FUND.  THAT FUND IS CONTRIBUTED BY
HANDLERS AND PAID TO HANDLERS.  IF HANDLERS MAY NOT ATTACK PAYMENTS TO
COOPERATIVES, AS THIS COURT HELD IN UNITED STATES V. ROCK ROYAL CO-OP.,
SUPRA AT 561, WITH ALL DEFERENCE I AM UNABLE TO SEE HOW PRODUCERS CAN
BE IN A BETTER POSITION TO ATTACK SUCH PAYMENTS.  THIS SUIT WAS RIGHTLY
DISMISSED. 
..END :



HECHT CO. V. BOWLES, 321 U.S. 321 


NO. 316.  ARGUED FEBRUARY 3, 4, 1944.  - DECIDED FEBRUARY 28, 1944.  -
137 F.2D 689, REVERSED. 


1.  UNDER SEC. 205(A) OF THE EMERGENCY PRICE CONTROL ACT OF 1942, THE
GRANT OF AN INJUNCTION, UPON APPLICATION OF THE ADMINISTRATOR AND A
SHOWING THAT THE DEFENDANT HAS ENGAGED IN ACTS OR PRACTICES VIOLATIVE
OF SEC. 4 OF THE ACT, IS NOT MANDATORY BUT IS IN THE DISCRETION OF THE
COURT.  P. 328. 

2.  THE DISCRETION OF THE COURT UNDER SEC. 205(A) MUST BE EXERCISED
IN THE LIGHT OF THE LARGE OBJECTIVES OF THE ACT; FOR IN THESE CASES THE
STANDARDS OF THE PUBLIC INTEREST, NOT THE REQUIREMENTS OF PRIVATE
LITIGATION, MEASURE THE PROPRIETY AND NEED OF INJUNCTIVE RELIEF.  P.
331. 

3.  WHETHER UPON THE FACTS OF THIS CASE THE DISTRICT COURT'S REFUSAL
OF AN INJUNCTION WAS AN ABUSE OF DISCRETION IS NOT DECIDED; AND THE
CAUSE IS REMANDED TO THE COURT OF APPEALS FOR DETERMINATION OF THAT
QUESTION.  P. 331. 

THE HECHT COMPANY V. BOWLES, PRICE ADMINISTRATOR. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 320 U.S. 727, TO REVIEW THE REVERSAL OF AN ORDER
DISMISSING THE COMPLAINT, 49 F.SUPP.  528, IN A SUIT BY THE PRICE
ADMINISTRATOR FOR AN INJUNCTION TO RESTRAIN THE DEFENDANT FROM
VIOLATIONS OF PRICE REGULATIONS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SEC. 205(A) OF THE EMERGENCY PRICE CONTROL ACT OF 1942(56 STAT. 23,
50 U.S.C. APP. SUPP. II, SECS. 901, 925) PROVIDES:  "WHENEVER IN THE
JUDGMENT OF THE ADMINISTRATOR ANY PERSON HAS ENGAGED OR IS ABOUT TO
ENGAGE IN ANY ACTS OR PRACTICES WHICH CONSTITUTE OR WILL CONSTITUTE A
VIOLATION OF ANY PROVISION OF SECTION 4 OF THIS ACT, HE MAY MAKE
APPLICATION TO THE APPROPRIATE COURT FOR AN ORDER ENJOINING SUCH ACTS
OR PRACTICES, OR FOR AN ORDER ENFORCING COMPLIANCE WITH SUCH PROVISION,
AND UPON A SHOWING BY THE ADMINISTRATOR THAT SUCH PERSON HAS ENGAGED OR
IS ABOUT TO ENGAGE IN ANY SUCH ACTS OR PRACTICES A PERMANENT OR
TEMPORARY INJUNCTION, RESTRAINING ORDER, OR OTHER ORDER SHALL BE
GRANTED WITHOUT BOND."  THE QUESTION IN THIS CASE IS WHETHER THE
ADMINISTRATOR, HAVING ESTABLISHED THAT A DEFENDANT HAS ENGAGED IN ACTS
OR PRACTICES VIOLATIVE OF SEC. 4 OF THE ACT IS ENTITLED AS OF RIGHT TO
AN INJUNCTION RESTRAINING THE DEFENDANT FROM ENGAGING IN SUCH ACTS OR
PRACTICES OR WHETHER THE COURT HAS SOME DISCRETION TO GRANT OR WITHHOLD
SUCH RELIEF. 

SEC. 4(A) OF THE ACT MAKES IT UNLAWFUL FOR A PERSON TO SELL OR
DELIVER ANY COMMODITY IN VIOLATION OF SPECIFIED ORDERS OR REGULATIONS
OF THE ADMINISTRATOR.  A REGULATION ISSUED UNDER SEC. 2 OF THE ACT AND
EFFECTIVE IN MAY, 1942(7 FED. REG. 3153) PROVIDED THAT NO PERSON SHOULD
SELL OR DELIVER ANY COMMODITY AT A PRICE HIGHER THAN THE AUTHORIZED
MAXIMUM PRICE (SEC. 1499.1) AS FIXED OR DETERMINED BY THE REGULATION. 
FN1  SINCE MAXIMUM PRICES WERE FIXED WITH REFERENCE TO EARLIER BASE
PERIODS, THE REGULATION ALSO PROVIDED FOR THE PRESERVATION AND
EXAMINATION OF EXISTING RECORDS.  FN2  AND PROVISION WAS LIKEWISE MADE
FOR THE KEEPING OF CURRENT RECORDS REFLECTING SALES MADE UNDER THE
REGULATION  FN3  AND FOR THE FILING OF MAXIMUM PRICES WITH THE
ADMINISTRATOR.  FN4 

THERE IS NO SUBSTANTIAL CONTROVERSY OVER THE FACTS.  PETITIONER
OPERATES A LARGE DEPARTMENT STORE IN WASHINGTON, D.C. AND DID A
BUSINESS OF ABOUT $20,000,000 IN 1942.  THERE ARE 107 DEPARTMENTS IN
THE STORE AND EACH SELLS A SEPARATE LINE OF MERCHANDISE.  IN THE FALL
OF 1942 THE ADMINISTRATOR STARTED AN INVESTIGATION TO DETERMINE WHETHER
PETITIONER WAS COMPLYING WITH THE ACT AND THE REGULATION.  THE
INVESTIGATION WAS A "SPOT CHECK," CONFINED TO SEVEN DEPARTMENTS.  IN
EACH OF THE SEVEN DEPARTMENTS VIOLATIONS WERE DISCLOSED.  AS A RESULT
THIS SUIT WAS BROUGHT.  THE COMPLAINT CHARGED VIOLATIONS OF THE MAXIMUM
PRICE PROVISIONS OF THE REGULATION AND VIOLATIONS OF THE REGULATIONS
GOVERNING THE KEEPING OF RECORDS AND REPORTING TO THE ADMINISTRATOR. 
THE ADMINISTRATOR PRAYED FOR AN INJUNCTION ENJOINING PETITIONER FROM
SELLING, DELIVERING OR OFFERING FOR SALE OR DELIVERY ANY COMMODITY IN
VIOLATION OF THE REGULATION AND FROM FAILING TO KEEP COMPLETE AND
ACCURATE RECORDS AS REQUIRED BY THE REGULATION.  IN ITS ANSWER
PETITIONER PLEADED AMONG OTHER THINGS THAT ANY FAILURE OR NEGLECT TO
COMPLY WITH THE REGULATION WAS INVOLUNTARY AND WAS CORRECTED AS SOON AS
DISCOVERED. 

NUMEROUS VIOLATIONS BOTH AS RESPECTS PRICES AND RECORDS WERE
DISCOVERED.  THUS IN SIX OF THE SEVEN DEPARTMENTS INVESTIGATED THERE
HAD OCCURRED BETWEEN MAY AND OCTOBER, 1942 SOME 3,700 SALES IN EXCESS
OF THE MAXIMUM PRICES WITH OVERCHARGES OF SOME $4,600.  THE STATEMENTS
FILED WITH THE ADMINISTRATOR WERE DEFICIENT, SOME 400 ITEMS OF
MERCHANDISE BEING OMITTED.  AND THERE WERE OVER 300 ITEMS WITH RESPECT
TO WHICH NO RECORDS WERE KEPT SHOWING HOW THE MAXIMUM PRICES HAD BEEN
DETERMINED. 

THERE IS NO DOUBT, HOWEVER, OF PETITIONER'S GOOD FAITH AND
DILIGENCE.  THE DISTRICT COURT FOUND THAT THE MANAGER OF THE STORE HAD
OFFERED IT AS A LABORATORY IN WHICH THE ADMINISTRATOR MIGHT EXPERIMENT
WITH ANY REGULATION WHICH MIGHT BE ISSUED.  PRIOR TO THE PROMULGATION
OF THE REGULATION THE PETITIONER HAD CREATED A NEW SECTION KNOWN AS THE
PRICE CONTROL OFFICE.  THAT OFFICE UNDERTOOK TO BRING PETITIONER INTO
COMPLIANCE WITH THE REQUIREMENTS OF THE REGULATION IN ADVANCE OF ITS
EFFECTIVE DATE.  THE HEAD OF THAT OFFICE TOGETHER WITH SEVEN ASSISTANTS
DEVOTED FULL TIME TO THAT ENDEAVOR.  BUT THE STORE HAD ABOUT 2,000
EMPLOYEES AND OVER ONE MILLION TWO HUNDRED THOUSAND ARTICLES OF
MERCHANDISE.  IN THE FURNITURE DEPARTMENTS ALONE THERE WERE OVER FIFTY
FOUR THOUSAND TRANSACTIONS IN THE FIRST TEN MONTHS OF 1942. 
DIFFICULTIES WERE ENCOUNTERED IN INTERPRETING THE REGULATION, IN
DETERMINING THE EXACT NATURE OF AN ARTICLE AND WHETHER IT HAD BEEN
PREVIOUSLY SOLD AND AT WHAT PRICE, ETC.  THE ABSENCE OF ADEQUATE
RECORDS MADE IT DIFFICULT TO ASCERTAIN PRICES DURING THE EARLIER BASE
PERIOD.  MISUNDERSTANDING OF THE REGULATION, CONFUSION ON THE PART OF
EMPLOYEES NOT TRAINED IN SUCH PROBLEMS OF INTERPRETATION AND
ADMINISTRATION, THE COMPLEXITY OF THE PROBLEM, AND THE FALLIBILITY OF
HUMANS ALL COMBINED TO PRODUCE NUMEROUS ERRORS.  BUT THE DISTRICT COURT
CONCLUDED THAT THE "MISTAKES IN PRICING AND LISTING WERE ALL MADE IN
GOOD FAITH AND WITHOUT INTENT TO VIOLATE THE REGULATIONS." 

THE DISTRICT COURT ALSO FOUND THAT THE MISTAKES BROUGHT TO LIGHT
"WERE AT ONCE CORRECTED, AND VIGOROUS STEPS WERE TAKEN BY THE HECHT
COMPANY TO PREVENT RECURRENCE OF THESE MISTAKES OR FURTHER MISTAKES IN
THE FUTURE."  THE COMPANY INCREASED ITS PRICE CONTROL OFFICE TO TWENTY
EIGHT EMPLOYEES.  NEW METHODS OF INTERNAL CONTROL WERE INSTITUTED EARLY
IN NOVEMBER, 1942 WITH THE VIEW OF AVOIDING FUTURE VIOLATIONS.  THAT
NEW SYSTEM OF CONTROL "GREATLY IMPROVED" THE SITUATION.  PETITIONER
UNDERTOOK TO MAKE REPAYMENT OF ALL OVERCHARGES BROUGHT TO LIGHT BY THE
INVESTIGATION IN CASE OF CUSTOMERS WHO COULD BE IDENTIFIED.  IT
PROPOSED TO CONTRIBUTE THE REMAINING AMOUNT OF SUCH OVERCHARGES TO SOME
LOCAL CHARITY.  THE DISTRICT COURT CONCLUDED THAT THE ISSUANCE OF AN
INJUNCTION WOULD HAVE "NO EFFECT BY WAY OF INSURING BETTER COMPLIANCE
IN THE FUTURE" AND WOULD BE "UNJUST" TO PETITIONER AND NOT "IN THE
PUBLIC INTEREST."  IT ACCORDINGLY DISMISSED THE COMPLAINT.  49 F.SUPP. 
528.  ON APPEAL THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
REVERSED THAT JUDGMENT, ONE JUDGE DISSENTING.  137 F.2D 689.  THAT
COURT HELD THAT THE FINDINGS OF THE DISTRICT COURT WERE SUPPORTED BY
SUBSTANTIAL EVIDENCE, EXCEPT THAT IT DID NOT CONSIDER WHETHER THE
EVIDENCE SUPPORTED THE FINDINGS THAT AN INJUNCTION WOULD NOT INSURE
BETTER COMPLIANCE IN THE FUTURE AND WOULD BE UNJUST TO PETITIONER.  IN
ITS VIEW THE LATTER FINDINGS WERE IMMATERIAL.  FOR IT CONSTRUED SEC.
205(A) OF THE ACT TO REQUIRE THE ISSUANCE OF AN INJUNCTION OR OTHER
ORDER AS A MATTER OF COURSE, ONCE VIOLATIONS WERE FOUND. 

THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH WE
GRANTED BECAUSE OF THE IMPORTANCE OF THE PROBLEM IN THE ADMINISTRATION
OF THE ACT. 

RESPONDENT INSISTS THAT THE MANDATORY CHARACTER OF SEC. 205(A) IS
CLEAR FROM ITS LANGUAGE, HISTORY AND PURPOSE.  HE ARGUES THAT "SHALL BE
GRANTED" IS NOT PERMISSIVE, THAT SINCE THE SAME SECTION PROVIDES THAT
THE ADMINISTRATOR "MAY" APPLY FOR AN INJUNCTION AND THAT, IF SO, THE
INJUNCTION "SHALL" BE GRANTED, "MAY" AND "SHALL" ARE EACH USED IN THE
ORDINARY SENSE.  IT IS POINTED OUT THAT WHEN THE BILL (FOR WHICH THE
ACT IN ITS FINAL FORM WAS SUBSTITUTED) PASSED THE HOUSE, SEC. 205(A)
PROVIDED THAT "UPON A PROPER SHOWING" AN INJUNCTION OR OTHER ORDER
"SHALL BE GRANTED WITHOUT BOND."  FN5  THE WORDS "UPON A PROPER
SHOWING" WERE STRICKEN IN THE SENATE AND WERE REPLACED BY THE WORDS
"UPON A SHOWING BY THE ADMINISTRATOR THAT SUCH PERSON HAS ENGAGED OR IS
ABOUT TO ENGAGE IN ANY SUCH ACTS OR PRACTICES."  AND THE SENATE REPORT
IN ITS ANALYSIS OF SEC. 205(A) STATED THAT "UPON A SHOWING BY THE
ADMINISTRATOR THAT SUCH PERSON HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY
SUCH ACTS OR PRACTICES, A TEMPORARY OR PERMANENT INJUNCTION,
RESTRAINING ORDER OR OTHER ORDER IS TO BE GRANTED WITHOUT BOND."  S.
REP. NO. 931, 77TH CONG., 2D SESS., P. 25.  FURTHER SUPPORT FOR THE
VIEW THAT THE ISSUANCE OF AN INJUNCTION IS MANDATORY ONCE VIOLATIONS
ARE SHOWN IS SOUGHT IN THE PATTERN OF FEDERAL LEGISLATION WHICH
PROVIDES RELIEF BY INJUNCTION IN AID OF LAW ENFORCEMENT.  SOME OF THOSE
STATUTES  FN6  CONTAIN PROVISIONS QUITE CLOSE TO THE LANGUAGE OF SEC.
205(A).  OTHERS PROVIDE THAT AN INJUNCTION OR RESTRAINING ORDER SHALL
BE GRANTED "UPON A PROPER SHOWING"  FN7  OR THAT FEDERAL DISTRICT
COURTS SHALL HAVE JURISDICTION TO RESTRAIN VIOLATIONS "FOR CAUSE
SHOWN."  FN8  THE ARGUMENT IS THAT WHEN CONGRESS DESIRED TO GIVE THE
DISTRICT COURTS DISCRETION TO GRANT OR WITHHOLD RELIEF BY INJUNCTION IT
CHOSE APT WORDS TO MAKE ITS DESIRE PLAIN. 

WE AGREE THAT THE CESSATION OF VIOLATIONS, WHETHER BEFORE OR AFTER
THE INSTITUTION OF A SUIT BY THE ADMINISTRATOR, IS NO BAR TO THE
ISSUANCE OF AN INJUNCTION UNDER SEC. 205(A).  BUT WE DO NOT THINK THAT
UNDER ALL CIRCUMSTANCES THE COURT MUST ISSUE THE INJUNCTION OR OTHER
ORDER WHICH THE ADMINISTRATOR SEEKS. 

IT SEEMS APPARENT ON THE FACE OF SEC. 205(A) THAT THERE IS SOME ROOM
FOR THE EXERCISE OF DISCRETION ON THE PART OF THE COURT.  FOR THE
REQUIREMENT IS THAT A "PERMANENT OR TEMPORARY INJUNCTION, RESTRAINING
ORDER, OR OTHER ORDER" BE GRANTED.  THOUGH THE ADMINISTRATOR ASKS FOR
AN INJUNCTION, SOME "OTHER ORDER" MIGHT BE MORE APPROPRIATE, OR AT
LEAST SO APPEAR TO THE COURT.  THUS IN THE PRESENT CASE ONE JUDGE IN
THE COURT OF APPEALS FELT THAT THE DISTRICT COURT SHOULD NOT HAVE
DISMISSED THE COMPLAINT BUT SHOULD HAVE ENTERED AN ORDER RETAINING THE
CASE ON THE DOCKET WITH THE RIGHT OF THE ADMINISTRATOR, ON NOTICE, TO
RENEW HIS APPLICATION FOR INJUNCTIVE RELIEF IF VIOLATIONS RECURRED.  IT
IS INDEED NOT DIFFICULT TO IMAGINE THAT IN SOME SITUATIONS THAT MIGHT
BE THE FAIREST COURSE TO FOLLOW AND ONE WHICH WOULD BE AS PRACTICALLY
EFFECTIVE AS THE ISSUANCE OF AN INJUNCTION.  SUCH AN ORDER, MOREOVER,
WOULD SEEM TO BE A TYPE OF "OTHER ORDER" WHICH A FAITHFUL READING OF
SEC. 205(A) WOULD PERMIT A COURT TO ISSUE IN A COMPLIANCE PROCEEDING. 
HOWEVER THAT MAY BE, IT WOULD SEEM CLEAR THAT THE COURT MIGHT DEEM SOME
"OTHER ORDER" MORE APPROPRIATE FOR THE EVIL AT HAND THAN THE ONE WHICH
WAS SOUGHT.  WE CANNOT SAY THAT IT LACKS THE POWER TO MAKE THAT
CHOICE.  THUS IT SEEMS THAT SEC. 205(A) FALLS SHORT OF MAKING MANDATORY
THE ISSUANCE OF AN INJUNCTION MERELY BECAUSE THE ADMINISTRATOR ASKS
IT. 

THERE IS, MOREOVER, SUPPORT IN THE LEGISLATIVE HISTORY OF SEC. 205(A)
FOR THE VIEW THAT "SHALL BE GRANTED" IS LESS MANDATORY THAN A LITERAL
READING MIGHT SUGGEST.  WE HAVE ALREADY REFERRED TO A PORTION OF THE
SENATE REPORT WHICH LENDS SOME SUPPORT TO THE POSITION OF THE
ADMINISTRATOR.  BUT IN ANOTHER PORTION OF THAT REPORT THERE IS THE
FOLLOWING REFERENCE TO SUITS TO ENJOIN VIOLATIONS OF THE ACT:  "IN
COMMON WITH SUBSTANTIALLY ALL REGULATORY STATUTES, THE BILL AUTHORIZES
THE OFFICIAL CHARGED WITH THE DUTY OF ADMINISTERING THE ACT TO APPLY TO
ANY APPROPRIATE COURT, STATE OR FEDERAL, FOR AN ORDER ENJOINING ANY
PERSON WHO HAS ENGAGED OR IS ABOUT TO ENGAGE IN ANY ACTS OR PRACTICES
WHICH CONSTITUTE OR WILL CONSTITUTE A VIOLATION OF ANY PROVISION OF THE
BILL.  SUCH COURTS ARE GIVEN JURISDICTION TO ISSUE WHATEVER ORDER TO
ENFORCE COMPLIANCE IS PROPER IN THE CIRCUMSTANCES OF EACH PARTICULAR
CASE."  S. REP. NO. 931, SUPRA, P. 10.  A GRANT OF JURISDICTION TO
ISSUE COMPLIANCE ORDERS HARDLY SUGGESTS AN ABSOLUTE DUTY TO DO SO UNDER
ANY AND ALL CIRCUMSTANCES.  WE CANNOT BUT THINK THAT IF CONGRESS HAD
INTENDED TO MAKE SUCH A DRASTIC DEPARTURE FROM THE TRADITIONS OF EQUITY
PRACTICE, AN UNEQUIVOCAL STATEMENT OF ITS PURPOSE WOULD HAVE BEEN
MADE. 

WE DO NOT STOP TO COMPARE THE PROVISIONS OF SEC. 205(A) WITH THE
REQUIREMENTS OF OTHER FEDERAL STATUTES GOVERNING ADMINISTRATIVE
AGENCIES WHICH, IT IS SAID, MAKE IT MANDATORY THAT THOSE AGENCIES TAKE
ACTION WHEN CERTAIN FACTS ARE SHOWN TO EXIST.  FN9  WE ARE DEALING HERE
WITH THE REQUIREMENTS OF EQUITY PRACTICE WITH A BACKGROUND OF SEVERAL
HUNDRED YEARS OF HISTORY.  ONLY THE OTHER DAY WE STATED THAT "AN APPEAL
TO THE EQUITY JURISDICTION CONFERRED ON FEDERAL DISTRICT COURTS IS AN
APPEAL TO THE SOUND DISCRETION WHICH GUIDES THE DETERMINATIONS OF
COURTS OF EQUITY."  MEREDITH V. WINTER HAVEN, 320 U.S. 228, 235.  THE
HISTORIC INJUNCTIVE PROCESS WAS DESIGNED TO DETER, NOT TO PUNISH.  THE
ESSENCE OF EQUITY JURISDICTION HAS BEEN THE POWER OF THE CHANCELLOR TO
DO EQUITY AND TO MOULD EACH DECREE TO THE NECESSITIES OF THE PARTICULAR
CASE.  FLEXIBILITY RATHER THAN RIGIDITY HAS DISTINGUISHED IT.  THE
QUALITIES OF MERCY AND PRACTICALITY HAVE MADE EQUITY THE INSTRUMENT FOR
NICE ADJUSTMENT AND RECONCILIATION BETWEEN THE PUBLIC INTEREST AND
PRIVATE NEEDS AS WELL AS BETWEEN COMPETING PRIVATE CLAIMS.  WE DO NOT
BELIEVE THAT SUCH A MAJOR DEPARTURE FROM THAT LONG TRADITION AS IS HERE
PROPOSED SHOULD BE LIGHTLY IMPLIED.  WE DO NOT THINK THE HISTORY OR
LANGUAGE OF SEC. 205(A) COMPEL IT.  IT SHOULD BE NOTED, MOREOVER, THAT
SEC. 205(A) GOVERNS THE PROCEDURE IN BOTH FEDERAL AND STATE COURTS. 
FOR SEC. 205(C) GIVES THE STATE COURTS CONCURRENT JURISDICTION WITH
FEDERAL DISTRICT COURTS OF CIVIL ENFORCEMENT PROCEEDINGS.  IT IS
THEREFORE EVEN MORE COMPELLING TO CONCLUDE THAT, IF CONGRESS DESIRED TO
MAKE SUCH AN ABRUPT DEPARTURE FROM TRADITIONAL EQUITY PRACTICE AS IS
SUGGESTED, IT WOULD HAVE MADE ITS DESIRE PLAIN.  HENCE WE RESOLVE THE
AMBIGUITIES OF SEC. 205(A) IN FAVOR OF THAT INTERPRETATION WHICH
AFFORDS A FULL OPPORTUNITY FOR EQUITY COURTS TO TREAT ENFORCEMENT
PROCEEDINGS UNDER THIS EMERGENCY LEGISLATION IN ACCORDANCE WITH THEIR
TRADITIONAL PRACTICES, AS CONDITIONED BY THE NECESSITIES OF THE PUBLIC
INTEREST WHICH CONGRESS HAS SOUGHT TO PROTECT.  UNITED STATES V.
MORGAN, 307 U.S. 183, 194 AND CASES CITED. 

WE DO NOT MEAN TO IMPLY THAT COURTS SHOULD ADMINISTER SEC. 205(A)
GRUDGINGLY.  WE REPEAT WHAT WE STATED IN UNITED STATES V. MORGAN,
SUPRA, 191, RESPECTING JUDICIAL REVIEW OF ADMINISTRATIVE ACTION:  "
...  COURT AND AGENCY ARE NOT TO BE REGARDED AS WHOLLY INDEPENDENT AND
UNRELATED INSTRUMENTALITIES OF JUSTICE, EACH ACTING IN THE PERFORMANCE
OF ITS PRESCRIBED STATUTORY DUTY WITHOUT REGARD TO THE APPROPRIATE
FUNCTION OF THE OTHER IN SECURING THE PLAINLY INDICATED OBJECTS OF THE
STATUTE.  COURT AND AGENCY ARE THE MEANS ADOPTED TO ATTAIN THE
PRESCRIBED END, AND SO FAR AS THEIR DUTIES ARE DEFINED BY THE WORDS OF
THE STATUTE, THOSE WORDS SHOULD BE CONSTRUED SO AS TO ATTAIN THAT END
THROUGH COORDINATED ACTION.  NEITHER BODY SHOULD REPEAT IN THIS DAY THE
MISTAKE MADE BY THE COURTS OF LAW WHEN EQUITY WAS STRUGGLING FOR
RECOGNITION AS AN AMELIORATING SYSTEM OF JUSTICE; NEITHER CAN RIGHTLY
BE REGARDED BY THE OTHER AS AN ALIEN INTRUDER, TO BE TOLERATED IF MUST
BE, BUT NEVER TO BE ENCOURAGED OR AIDED BY THE OTHER IN THE ATTAINMENT
OF THE COMMON AIM."  THE ADMINISTRATOR DOES NOT CARRY THE SOLE BURDEN
OF THE WAR AGAINST INFLATION.  THE COURTS ALSO HAVE BEEN ENTRUSTED WITH
A SHARE OF THAT RESPONSIBILITY.  AND THEIR DISCRETION UNDER SEC. 205(A)
MUST BE EXERCISED IN LIGHT OF THE LARGE OBJECTIVES OF THE ACT.  FOR THE
STANDARDS OF THE PUBLIC INTEREST, NOT THE REQUIREMENTS OF PRIVATE
LITIGATION, MEASURE THE PROPRIETY AND NEED FOR INJUNCTIVE RELIEF IN
THESE CASES.  THAT DISCRETION SHOULD REFLECT AN ACUTE AWARENESS OF THE
CONGRESSIONAL ADMONITION THAT "OF ALL THE CONSEQUENCES OF WAR, EXCEPT
HUMAN SLAUGHTER, INFLATION IS THE MOST DESTRUCTIVE" (S. REP. NO. 931,
SUPRA, P. 2) AND THAT DELAY OR INDIFFERENCE MAY BE FATAL.  WHETHER THE
DISTRICT COURT ABUSED ITS DISCRETION IN DISMISSING THE COMPLAINT IS A
QUESTION WHICH WE DO NOT REACH.  THE JUDGMENT MUST BE REVERSED AND THE
CAUSE REMANDED TO THE COURT OF APPEALS FOR THAT DETERMINATION. 
REVERSED. 

FN1  SEC. 1499.2 PROVIDED IN PART:  "EXCEPT AS OTHERWISE PROVIDED IN
THIS GENERAL MAXIMUM PRICE REGULATION, THE SELLER'S MAXIMUM PRICE FOR
ANY COMMODITY OR SERVICE SHALL BE:  (A) IN THOSE CASES IN WHICH THE
SELLER DEALT IN THE SAME OR SIMILAR COMMODITIES OR SERVICES DURING
MARCH 1942:  THE HIGHEST PRICE CHARGED BY THE SELLER DURING SUCH MONTH
(1) FOR THE SAME COMMODITY OR SERVICE; OR (2) IF NO CHARGE WAS MADE
FOR THE SAME COMMODITY OR SERVICE, FOR THE SIMILAR COMMODITY OR
SERVICE, MOST NEARLY LIKE IT; OR (B) IN THOSE CASES IN WHICH THE SELLER
DID NOT DEAL IN THE SAME OR SIMILAR COMMODITIES OR SERVICES DURING
MARCH 1942:  THE HIGHEST PRICE CHARGED DURING SUCH MONTH BY THE MOST
CLOSELY COMPETITIVE SELLER OF THE SAME CLASS - (1) FOR THE SAME
COMMODITY OR SERVICE; OR (2) IF NO CHARGE WAS MADE FOR THE SAME
COMMODITY OR SERVICE, FOR THE SIMILAR COMMODITY OR SERVICE MOST NEARLY
LIKE IT.  'HIGHEST PRICE CHARGED DURING MARCH 1942'.  FOR THE PURPOSES
OF THIS GENERAL MAXIMUM PRICE REGULATION, THE HIGHEST PRICE CHARGED BY
A SELLER 'DURING MARCH 1942' SHALL BE:  (A) THE HIGHEST PRICE WHICH THE
SELLER CHARGED FOR A COMMODITY DELIVERED OR SERVICE SUPPLIED BY HIM
DURING MARCH 1942; OR (B) IF THE SELLER MADE NO SUCH DELIVERY OR
SUPPLIED NO SUCH SERVICE DURING MARCH 1942 HIS HIGHEST OFFERING PRICE
FOR DELIVERY OR SUPPLY DURING THAT MONTH." 

THE SELLER'S MAXIMUM PRICE FOR A COMMODITY WHICH CANNOT BE PRICED
UNDER SEC. 1499.2 WAS TO BE DETERMINED BY THE SELLER PURSUANT TO A
FORMULA PRESCRIBED IN SEC. 1499.3. 

FN2  SEC. 1499.11 ENTITLED "BASE-PERIOD RECORDS" PROVIDED IN PART:
"EVERY PERSON SELLING COMMODITIES OR SERVICES FOR WHICH, UPON SALE BY
THAT PERSON, MAXIMUM PRICES ARE ESTABLISHED BY THIS GENERAL MAXIMUM
PRICE REGULATION, SHALL:  (A) PRESERVE FOR EXAMINATION BY THE OFFICE OF
PRICE ADMINISTRATION ALL HIS EXISTING RECORDS RELATING TO THE PRICES
WHICH HE CHARGED FOR SUCH OF THOSE COMMODITIES OR SERVICES AS HE
DELIVERED OR SUPPLIED DURING MARCH 1942, AND HIS OFFERING PRICES FOR
DELIVERY OR SUPPLY OF SUCH COMMODITIES OR SERVICES DURING SUCH MONTH;
AND (B) PREPARE, ON OR BEFORE JULY 1, 1942, ON THE BASIS OF ALL
AVAILABLE INFORMATION AND RECORDS, AND THEREAFTER KEEP FOR EXAMINATION
BY ANY PERSON DURING ORDINARY BUSINESS HOURS, A STATEMENT SHOWING:  (1)
THE HIGHEST PRICES WHICH HE CHARGED FOR SUCH OF THOSE COMMODITIES OR
SERVICES AS HE DELIVERED OR SUPPLIED DURING MARCH 1942 AND HIS OFFERING
PRICES FOR DELIVERY OR SUPPLY OF SUCH COMMODITIES OR SERVICES DURING
SUCH MONTH, TOGETHER WITH AN APPROPRIATE DESCRIPTION OR IDENTIFICATION
OF EACH SUCH COMMODITY OR SERVICE; AND (2) ALL HIS CUSTOMARY
ALLOWANCES, DISCOUNTS, AND OTHER PRICE DIFFERENTIALS." 

FN3  SEC. 1499.12 ENTITLED "CURRENT RECORDS" PROVIDED:  "EVERY PERSON
SELLING COMMODITIES OR SERVICES FOR WHICH, UPON SALE BY THAT PERSON,
MAXIMUM PRICES ARE ESTABLISHED BY THIS GENERAL MAXIMUM PRICE REGULATION
SHALL KEEP, AND MAKE AVAILABLE FOR EXAMINATION BY THE OFFICE OF PRICE
ADMINISTRATION, RECORDS OF THE SAME KIND AS HE HAS CUSTOMARILY KEPT,
RELATING TO THE PRICES WHICH HE CHARGED FOR SUCH OF THOSE COMMODITIES
OR SERVICES AS HE SOLD AFTER THE EFFECTIVE DATE OF THIS GENERAL MAXIMUM
PRICE REGULATION; AND, IN ADDITION, RECORDS SHOWING, AS PRECISELY AS
POSSIBLE, THE BASIS UPON WHICH HE DETERMINED MAXIMUM PRICES FOR THOSE
COMMODITIES OR SERVICES." 

FN4  SEC. 1499.13(B) PROVIDED:  "ON OR BEFORE JUNE 1, 1942, EVERY
PERSON OFFERING TO SELL COST-OF-LIVING COMMODITIES AT RETAIL SHALL FILE
WITH THE APPROPRIATE WAR PRICE AND RATIONING BOARD OF THE OFFICE OF
PRICE ADMINISTRATION A STATEMENT SHOWING HIS MAXIMUM PRICE FOR EACH
SUCH COMMODITY, TOGETHER WITH AN APPROPRIATE DESCRIPTION OR
IDENTIFICATION OF IT.  SUCH STATEMENT SHALL BE KEPT UP TO DATE BY SUCH
PERSON BY FILING ON THE FIRST DAY OF EVERY SUCCEEDING MONTH A STATEMENT
OF HIS MAXIMUM PRICE FOR ANY COST-OF-LIVING COMMODITY NEWLY OFFERED FOR
SALE DURING THE PREVIOUS MONTH, TOGETHER WITH AN APPROPRIATE
DESCRIPTION OR IDENTIFICATION OF THE COMMODITY." 

FN5  H.R. 5479, 77TH CONG., 1ST SESS. 

FN6  "UPON A SHOWING THAT SUCH PERSON HAS ENGAGED OR IS ABOUT TO
ENGAGE IN ANY SUCH ACT OR PRACTICE, A PERMANENT OR TEMPORARY INJUNCTION
OR DECREE OR RESTRAINING ORDER SHALL BE GRANTED WITHOUT BOND." 
INVESTMENT COMPANY ACT OF 1940, 54 STAT. 842, 15 U.S.C. SEC. 80A-41;
INVESTMENT ADVISERS ACT OF 1940, 54 STAT. 853, 15 U.S.C. SEC. 80B-9. 

FN7  SECURITIES ACT OF 1933, 48 STAT. 86, 15 U.S.C. SEC. 77T (B);
SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 899, 15 U.S.C. SEC. 78U (E). 

FN8  FAIR LABOR STANDARDS ACT, 52 STAT. 1069, 29 U.S.C. SEC. 217. 

FN9  NATIONAL LABOR RELATIONS ACT, 49 STAT. 453, 29 U.S.C. SEC.
160(C); CLAYTON ACT, 38 STAT. 734, 15 U.S.C. SEC. 21; FEDERAL TRADE
COMMISSION ACT, 38 STAT. 719, 15 U.S.C. SEC. 45(B). 

MR. JUSTICE FRANKFURTER AGREES THAT SEC. 205(A) OF THE EMERGENCY
PRICE CONTROL ACT, APART FROM DISPENSING WITH ANY REQUIREMENT FOR A
BOND, DOES NOT CHANGE THE HISTORIC CONDITIONS FOR THE EXERCISE BY
COURTS OF EQUITY OF THEIR POWER TO ISSUE INJUNCTIONS, ACCORDING TO
WHICH THE COURT OF APPEALS SHOULD NOW DISPOSE OF THIS CAUSE. 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE JUDGMENT OF THE COURT OF
APPEALS SHOULD BE REVERSED AND THAT OF THE DISTRICT COURT AFFIRMED. 
..END :










J.I. CASE CO. V. LABOR BOARD, 321 U.S. 332 


NO. 67.  ARGUED JANUARY 3, 1944.  - DECIDED FEBRUARY 28, 1944 - 134 F.2D
70, MODIFIED AND AFFIRMED. 


1.  IN VIEW OF THE CONTINUING CHARACTER OF THE OBLIGATION IMPOSED ON
THE EMPLOYER BY THE ORDER OF THE NATIONAL LABOR RELATIONS BOARD, THE
SUBSEQUENT EXPIRATION OF THE CONTRACTS IN QUESTION AND THE EMPLOYER'S
ENTRY INTO A COLLECTIVE BARGAINING AGREEMENT DID NOT RENDER THE CASE
MOOT.  P. 334. 

2.  THAT AN EMPLOYER HAS INDIVIDUAL CONTRACTS OF EMPLOYMENT, COVERING
WAGES, HOURS AND WORKING CONDITIONS, WITH A MAJORITY OF HIS EMPLOYEES,
WHICH CONTRACTS WERE VALID WHEN MADE AND ARE UNEXPIRED, DOES NOT
PRECLUDE EXERCISE BY THE EMPLOYEES OF THEIR RIGHT UNDER THE NATIONAL
LABOR RELATIONS ACT TO CHOOSE A REPRESENTATIVE FOR COLLECTIVE
BARGAINING NOR WARRANT REFUSAL BY THE EMPLOYER TO BARGAIN WITH SUCH
REPRESENTATIVE IN RESPECT OF TERMS COVERED BY THE INDIVIDUAL
CONTRACTS.  P. 339. 

THE RELATION IN GENERAL OF INDIVIDUAL CONTRACTS TO COLLECTIVE
BARGAINING IS DISCUSSED. 

3.  THE BOARD HAS NO POWER TO ADJUDICATE THE VALIDITY OR EFFECT OF
THE CONTRACTS HERE IN QUESTION, EXCEPT AS TO THEIR EFFECT ON MATTERS
WITHIN ITS JURISDICTION.  P. 340. 

4.  SINCE THE DESIST ORDER LITERALLY GOES BEYOND WHAT THE BOARD
INTENDED, ITS LANGUAGE IS MODIFIED ACCORDINGLY.  P. 341. 

J.I. CASE CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 320 U.S. 210, TO REVIEW A DECREE WHICH GRANTED
ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 42
N.L.R.B. 85. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CAUSE WAS HEARD BY THE NATIONAL LABOR RELATIONS BOARD ON
STIPULATED FACTS WHICH SO FAR AS CONCERN PRESENT ISSUES ARE AS
FOLLOWS: 

THE PETITIONER, J.I. CASE COMPANY, AT ITS ROCK ISLAND, ILLINOIS,
PLANT, FROM 1937 OFFERED EACH EMPLOYEE AN INDIVIDUAL CONTRACT OF
EMPLOYMENT.  THE CONTRACTS WERE UNIFORM AND FOR A TERM OF ONE YEAR. 
THE COMPANY AGREED TO FURNISH EMPLOYMENT AS STEADILY AS CONDITIONS
PERMITTED, TO PAY A SPECIFIED RATE, WHICH THE COMPANY MIGHT REDETERMINE
IF THE JOB CHANGED, AND TO MAINTAIN CERTAIN HOSPITAL FACILITIES.  THE
EMPLOYEE AGREED TO ACCEPT THE PROVISIONS, TO SERVE FAITHFULLY AND
HONESTLY FOR THE TERM, TO COMPLY WITH FACTORY RULES, AND THAT DEFECTIVE
WORK SHOULD NOT BE PAID FOR.  ABOUT 75% OF THE EMPLOYEES ACCEPTED AND
WORKED UNDER THESE AGREEMENTS. 

ACCORDING TO THE BOARD'S STIPULATION AND FINDING, THE EXECUTION OF
THE CONTRACTS WAS NOT A CONDITION OF EMPLOYMENT, NOR WAS THE STATUS OF
INDIVIDUAL EMPLOYEES AFFECTED BY REASON OF SIGNING OR FAILING TO SIGN
THE CONTRACTS.  IT IS NOT FOUND OR CONTENDED THAT THE AGREEMENTS WERE
COERCED, OBTAINED BY ANY UNFAIR LABOR PRACTICE, OR THAT THEY WERE NOT
VALID UNDER THE CIRCUMSTANCES IN WHICH THEY WERE MADE. 

WHILE THE INDIVIDUAL CONTRACTS EXECUTED AUGUST 1, 1941 WERE IN
EFFECT, A C.I.O. UNION PETITIONED THE BOARD FOR CERTIFICATION AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF THE PRODUCTION AND MAINTENANCE
EMPLOYEES.  ON DECEMBER 17, 1941 A HEARING WAS HELD, AT WHICH THE
COMPANY URGED THE INDIVIDUAL CONTRACTS AS A BAR TO REPRESENTATION
PROCEEDINGS.  THE BOARD, HOWEVER, DIRECTED AN ELECTION, WHICH WAS WON
BY THE UNION.  THE UNION WAS THEREUPON CERTIFIED AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF THE EMPLOYEES IN QUESTION IN RESPECT TO
WAGES, HOURS, AND OTHER CONDITIONS OF EMPLOYMENT. 

THE UNION THEN ASKED THE COMPANY TO BARGAIN.  IT REFUSED, DECLARING
THAT IT COULD NOT DEAL WITH THE UNION IN ANY MANNER AFFECTING RIGHTS
AND OBLIGATIONS UNDER THE INDIVIDUAL CONTRACTS WHILE THEY REMAINED IN
EFFECT.  IT OFFERED TO NEGOTIATE ON MATTERS WHICH DID NOT AFFECT RIGHTS
UNDER THE INDIVIDUAL CONTRACTS, AND SAID THAT UPON THE EXPIRATION OF
THE CONTRACTS IT WOULD BARGAIN AS TO ALL MATTERS.  TWICE THE COMPANY
SENT CIRCULARS TO ITS EMPLOYEES ASSERTING THE VALIDITY OF THE
INDIVIDUAL CONTRACTS AND STATING THE POSITION THAT IT TOOK BEFORE THE
BOARD IN REFERENCE TO THEM. 

THE BOARD HELD THAT THE COMPANY HAD REFUSED TO BARGAIN COLLECTIVELY,
IN VIOLATION OF SEC. 8(5) OF THE NATIONAL LABOR RELATIONS ACT; AND THAT
THE CONTRACTS HAD BEEN UTILIZED, BY MEANS OF THE CIRCULARS, TO IMPEDE
EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY SEC. 7 OF THE ACT,
WITH THE RESULT THAT THE COMPANY HAD ENGAGED IN UNFAIR LABOR PRACTICES
WITHIN THE MEANING OF SEC. 8(1) OF THE ACT.  IT ORDERED THE COMPANY TO
CEASE AND DESIST FROM GIVING EFFECT TO THE CONTRACTS, FROM EXTENDING
THEM OR ENTERING INTO NEW ONES, FROM REFUSING TO BARGAIN AND FROM
INTERFERING WITH THE EMPLOYEES; AND IT REQUIRED THE COMPANY TO GIVE
NOTICE ACCORDINGLY AND TO BARGAIN UPON REQUEST. 

THE CIRCUIT COURT OF APPEALS, WITH MODIFICATION NOT IN ISSUE HERE,
GRANTED AN ORDER OF ENFORCEMENT.  THE ISSUES ARE UNSETTLED ONES
IMPORTANT IN THE ADMINISTRATION OF THE ACT, AND WE GRANTED CERTIORARI. 
IN DOING SO WE ASKED COUNSEL, IN VIEW OF THE EXPIRATION OF THE
INDIVIDUAL CONTRACTS AND THE NEGOTIATION OF A COLLECTIVE CONTRACT, TO
DISCUSS WHETHER THE CASE WAS MOOT.  IN VIEW OF THE CONTINUING CHARACTER
OF THE OBLIGATION IMPOSED BY THE ORDER WE THINK IT IS NOT, AND WILL
EXAMINE THE MERITS. 

CONTRACT IN LABOR LAW IS A TERM THE IMPLICATIONS OF WHICH MUST BE
DETERMINED FROM THE CONNECTION IN WHICH IT APPEARS.  COLLECTIVE
BARGAINING BETWEEN EMPLOYER AND THE REPRESENTATIVES OF A UNIT, USUALLY
A UNION, RESULTS IN AN ACCORD AS TO TERMS WHICH WILL GOVERN HIRING AND
WORK AND PAY IN THAT UNIT.  THE RESULT IS NOT, HOWEVER, A CONTRACT OF
EMPLOYMENT EXCEPT IN RARE CASES; NO ONE HAS A JOB BY REASON OF IT AND
NO OBLIGATION TO ANY INDIVIDUAL ORDINARILY COMES INTO EXISTENCE FROM IT
ALONE.  THE NEGOTIATIONS BETWEEN UNION AND MANAGEMENT RESULT IN WHAT
OFTEN HAS BEEN CALLED A TRADE AGREEMENT, RATHER THAN IN A CONTRACT OF
EMPLOYMENT.  WITHOUT PUSHING THE ANALOGY TOO FAR, THE AGREEMENT MAY BE
LIKENED TO THE TARIFFS ESTABLISHED BY A CARRIER, TO STANDARD PROVISIONS
PRESCRIBED BY SUPERVISING AUTHORITIES FOR INSURANCE POLICIES, OR TO
UTILITY SCHEDULES OF RATES AND RULES FOR SERVICE, WHICH DO NOT OF
THEMSELVES ESTABLISH ANY RELATIONSHIPS BUT WHICH DO GOVERN THE TERMS OF
THE SHIPPER OR INSURER OR CUSTOMER RELATIONSHIP WHENEVER AND WITH
WHOMEVER IT MAY BE ESTABLISHED.  INDEED, IN SOME EUROPEAN COUNTRIES,
CONTRARY TO AMERICAN PRACTICE, THE TERMS OF A COLLECTIVELY NEGOTIATED
TRADE AGREEMENT ARE SUBMITTED TO A GOVERNMENT DEPARTMENT AND IF
APPROVED BECOME A GOVERNMENTAL REGULATION RULING EMPLOYMENT IN THE
UNIT.  FN1 

AFTER THE COLLECTIVE TRADE AGREEMENT IS MADE, THE INDIVIDUALS WHO
SHALL BENEFIT BY IT ARE IDENTIFIED BY INDIVIDUAL HIRINGS.  THE
EMPLOYER, EXCEPT AS RESTRICTED BY THE COLLECTIVE AGREEMENT ITSELF AND
EXCEPT THAT HE MUST ENGAGE IN NO UNFAIR LABOR PRACTICE OR
DISCRIMINATION, IS FREE TO SELECT THOSE HE WILL EMPLOY OR DISCHARGE. 
BUT THE TERMS OF THE EMPLOYMENT ALREADY HAVE BEEN TRADED OUT.  THERE IS
LITTLE LEFT TO INDIVIDUAL AGREEMENT EXCEPT THE ACT OF HIRING.  THIS
HIRING MAY BE BY WRITING OR BY WORD OF MOUTH OR MAY BE IMPLIED FROM
CONDUCT.  IN THE SENSE OF CONTRACTS OF HIRING, INDIVIDUAL CONTRACTS
BETWEEN THE EMPLOYER AND EMPLOYEE ARE NOT FORBIDDEN, BUT INDEED ARE
NECESSITATED BY THE COLLECTIVE BARGAINING PROCEDURE. 

BUT, HOWEVER ENGAGED, AN EMPLOYEE BECOMES ENTITLED BY VIRTUE OF THE
LABOR RELATIONS ACT SOMEWHAT AS A THIRD PARTY BENEFICIARY TO ALL
BENEFITS OF THE COLLECTIVE TRADE AGREEMENT, EVEN IF ON HIS OWN HE WOULD
YIELD TO LESS FAVORABLE TERMS.  THE INDIVIDUAL HIRING CONTRACT IS
SUBSIDIARY TO THE TERMS OF THE TRADE AGREEMENT AND MAY NOT WAIVE ANY OF
ITS BENEFITS, ANY MORE THAN A SHIPPER CAN CONTRACT AWAY THE BENEFIT OF
FILED TARIFFS, THE INSURER THE BENEFIT OF STANDARD PROVISIONS, OR THE
UTILITY CUSTOMER THE BENEFIT OF LEGALLY ESTABLISHED RATES. 

CONCURRENT EXISTENCE OF THESE TWO TYPES OF AGREEMENT RAISES PROBLEMS
AS TO WHICH THE NATIONAL LABOR RELATIONS ACT MAKES NO EXPRESS
PROVISION.  WE HAVE, HOWEVER, HELD THAT INDIVIDUAL CONTRACTS OBTAINED
AS THE RESULT OF AN UNFAIR LABOR PRACTICE MAY NOT BE THE BASIS OF
ADVANTAGE TO THE VIOLATOR OF THE ACT NOR OF DISADVANTAGE TO EMPLOYEES. 
NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350.  BUT IT IS URGED
THAT WHERE, AS HERE, THE CONTRACTS WERE NOT UNFAIRLY OR UNLAWFULLY
OBTAINED, THE COURT INDICATED A CONTRARY RULE IN LABOR BOARD V. JONES &
LAUGHLIN STEEL CORP., 301 U.S. 1, 44-45, AND VIRGINIAN RY. CO. V.
SYSTEM FEDERATION, 300 U.S. 515.  WITHOUT REVIEWING THOSE CASES IN
DETAIL, IT MAY BE SAID THAT THEIR DECISION CALLED FOR NOTHING AND THEIR
OPINIONS CONTAIN NOTHING WHICH MAY BE PROPERLY READ TO RULE THE CASE
BEFORE US.  THE COURT IN THOSE CASES RECOGNIZED THE EXISTENCE OF SOME
SCOPE FOR INDIVIDUAL CONTRACTS, BUT IT DID NOT UNDERTAKE TO DEFINE IT
OR TO CONSIDER THE RELATIONS BETWEEN LAWFUL INDIVIDUAL AND COLLECTIVE
AGREEMENTS, WHICH IS THE PROBLEM NOW BEFORE US. 

CARE HAS BEEN TAKEN IN THE OPINIONS OF THE COURT TO RESERVE A FIELD
FOR THE INDIVIDUAL CONTRACT, EVEN IN INDUSTRIES COVERED BY THE NATIONAL
LABOR RELATIONS ACT, NOT MERELY AS AN ACT OR EVIDENCE OF HIRING, BUT
ALSO IN THE SENSE OF A COMPLETELY INDIVIDUALLY BARGAINED CONTRACT
SETTING OUT TERMS OF EMPLOYMENT, BECAUSE THERE ARE CIRCUMSTANCES IN
WHICH IT MAY LEGALLY BE USED, IN FACT, IN WHICH THERE IS NO
ALTERNATIVE.  WITHOUT LIMITING THE POSSIBILITIES, INSTANCES SUCH AS THE
FOLLOWING WILL OCCUR:  MEN MAY CONTINUE WORK AFTER A COLLECTIVE
AGREEMENT EXPIRES AND, DESPITE NEGOTIATION IN GOOD FAITH, THE
NEGOTIATION MAY BE DEADLOCKED OR DELAYED; IN THE INTERIM EXPRESS OR
IMPLIED INDIVIDUAL AGREEMENTS MAY BE HELD TO GOVERN.  THE CONDITIONS
FOR COLLECTIVE BARGAINING MAY NOT EXIST; THUS A MAJORITY OF THE
EMPLOYEES MAY REFUSE TO JOIN A UNION OR TO AGREE UPON OR DESIGNATE
BARGAINING REPRESENTATIVES, OR THE MAJORITY MAY NOT BE DEMONSTRABLE BY
THE MEANS PRESCRIBED BY THE STATUTE, OR A PREVIOUSLY EXISTENT MAJORITY
MAY HAVE BEEN LOST WITHOUT UNLAWFUL INTERFERENCE BY THE EMPLOYER AND NO
NEW MAJORITY HAVE BEEN FORMED.  AS THE EMPLOYER IN THESE CIRCUMSTANCES
MAY BE UNDER NO LEGAL OBLIGATION TO BARGAIN COLLECTIVELY, HE MAY BE
FREE TO ENTER INTO INDIVIDUAL CONTRACTS.  FN2 

INDIVIDUAL CONTRACTS, NO MATTER WHAT THE CIRCUMSTANCES THAT JUSTIFY
THEIR EXECUTION OR WHAT THEIR TERMS, MAY NOT BE AVAILED OF TO DEFEAT OR
DELAY THE PROCEDURES PRESCRIBED BY THE NATIONAL LABOR RELATIONS ACT
LOOKING TO COLLECTIVE BARGAINING, NOR TO EXCLUDE THE CONTRACTING
EMPLOYEE FROM A DULY ASCERTAINED BARGAINING UNIT; NOR MAY THEY BE USED
TO FORESTALL BARGAINING OR TO LIMIT OR CONDITION THE TERMS OF THE
COLLECTIVE AGREEMENT.  "THE BOARD ASSERTS A PUBLIC RIGHT VESTED IN IT
AS A PUBLIC BODY, CHARGED IN THE PUBLIC INTEREST WITH THE DUTY OF
PREVENTING UNFAIR LABOR PRACTICES."  NATIONAL LICORICE CO. V. LABOR
BOARD, 309 U.S. 350, 364.  WHEREVER PRIVATE CONTRACTS CONFLICT WITH ITS
FUNCTIONS, THEY OBVIOUSLY MUST YIELD OR THE ACT WOULD BE REDUCED TO A
FUTILITY. 

IT IS EQUALLY CLEAR SINCE THE COLLECTIVE TRADE AGREEMENT IS TO SERVE
THE PURPOSE CONTEMPLATED BY THE ACT, THE INDIVIDUAL CONTRACT CANNOT BE
EFFECTIVE AS A WAIVER OF ANY BENEFIT TO WHICH THE EMPLOYEE OTHERWISE
WOULD BE ENTITLED UNDER THE TRADE AGREEMENT.  THE VERY PURPOSE OF
PROVIDING BY STATUTE FOR THE COLLECTIVE AGREEMENT IS TO SUPERSEDE THE
TERMS OF SEPARATE AGREEMENTS OF EMPLOYEES WITH TERMS WHICH REFLECT THE
STRENGTH AND BARGAINING POWER AND SERVE THE WELFARE OF THE GROUP.  ITS
BENEFITS AND ADVANTAGES ARE OPEN TO EVERY EMPLOYEE OF THE REPRESENTED
UNIT, WHATEVER THE TYPE OR TERMS OF HIS PRE-EXISTING CONTRACT OF
EMPLOYMENT. 

BUT IT IS URGED THAT SOME EMPLOYEES MAY LOSE BY THE COLLECTIVE
AGREEMENT, THAT AN INDIVIDUAL WORKMAN MAY SOMETIMES HAVE, OR BE CAPABLE
OF GETTING, BETTER TERMS THAN THOSE OBTAINABLE BY THE GROUP AND THAT
HIS FREEDOM OF CONTRACT MUST BE RESPECTED ON THAT ACCOUNT.  WE ARE NOT
CALLED UPON TO SAY THAT UNDER NO CIRCUMSTANCES CAN AN INDIVIDUAL
ENFORCE AN AGREEMENT MORE ADVANTAGEOUS THAN A COLLECTIVE AGREEMENT, BUT
WE FIND THE MERE POSSIBILITY THAT SUCH AGREEMENTS MIGHT BE MADE NO
GROUND FOR HOLDING GENERALLY THAT INDIVIDUAL CONTRACTS MAY SURVIVE OR
SURMOUNT COLLECTIVE ONES.  THE PRACTICE AND PHILOSOPHY OF COLLECTIVE
BARGAINING LOOKS WITH SUSPICION ON SUCH INDIVIDUAL ADVANTAGES.  OF
COURSE, WHERE THERE IS GREAT VARIATION IN CIRCUMSTANCES OF EMPLOYMENT
OR CAPACITY OF EMPLOYEES, IT IS POSSIBLE FOR THE COLLECTIVE BARGAIN TO
PRESCRIBE ONLY MINIMUM RATES OR MAXIMUM HOURS OR EXPRESSLY TO LEAVE
CERTAIN AREAS OPEN TO INDIVIDUAL BARGAINING.  BUT EXCEPT AS SO
PROVIDED, ADVANTAGES TO INDIVIDUALS MAY PROVE AS DISRUPTIVE OF
INDUSTRIAL PEACE AS DISADVANTAGES.  THEY ARE A FRUITFUL WAY OF
INTERFERING WITH ORGANIZATION AND CHOICE OF REPRESENTATIVES; INCREASED
COMPENSATION, IF INDIVIDUALLY DESERVED, IS OFTEN EARNED AT THE COST OF
BREAKING DOWN SOME OTHER STANDARD THOUGHT TO BE FOR THE WELFARE OF THE
GROUP, AND ALWAYS CREATES THE SUSPICION OF BEING PAID AT THE LONG-RANGE
EXPENSE OF THE GROUP AS A WHOLE.  SUCH DISCRIMINATIONS NOT INFREQUENTLY
AMOUNT TO UNFAIR LABOR PRACTICES.  THE WORKMAN IS FREE, IF HE VALUES
HIS OWN BARGAINING POSITION MORE THAN THAT OF THE GROUP, TO VOTE
AGAINST REPRESENTATION; BUT THE MAJORITY RULES, AND IF IT COLLECTIVIZES
THE EMPLOYMENT BARGAIN, INDIVIDUAL ADVANTAGES OR FAVORS WILL GENERALLY
IN PRACTICE GO IN AS A CONTRIBUTION TO THE COLLECTIVE RESULT.  WE
CANNOT EXCEPT INDIVIDUAL CONTRACTS GENERALLY FROM THE OPERATION OF
COLLECTIVE ONES BECAUSE SOME MAY BE MORE INDIVIDUALLY ADVANTAGEOUS. 
INDIVIDUAL CONTRACTS CANNOT SUBTRACT FROM COLLECTIVE ONES, AND WHETHER
UNDER SOME CIRCUMSTANCES THEY MAY ADD TO THEM IN MATTERS COVERED BY THE
COLLECTIVE BARGAIN, WE LEAVE TO BE DETERMINED BY APPROPRIATE FORUMS
UNDER THE LAWS OF CONTRACTS APPLICABLE, AND TO THE LABOR BOARD IF THEY
CONSTITUTE UNFAIR LABOR PRACTICES. 

IT ALSO IS URGED THAT SUCH INDIVIDUAL CONTRACTS MAY EMBODY MATTERS
THAT ARE NOT NECESSARILY INCLUDED WITHIN THE STATUTORY SCOPE OF
COLLECTIVE BARGAINING, SUCH AS STOCK PURCHASE, GROUP INSURANCE,
HOSPITALIZATION, OR MEDICAL ATTENTION.  WE KNOW OF NOTHING TO PREVENT
THE EMPLOYEE'S, BECAUSE HE IS AN EMPLOYEE, MAKING ANY CONTRACT PROVIDED
IT IS NOT INCONSISTENT WITH A COLLECTIVE AGREEMENT OR DOES NOT AMOUNT
TO OR RESULT FROM OR IS NOT PART OF AN UNFAIR LABOR PRACTICE.  BUT IN
SO DOING THE EMPLOYER MAY NOT INCIDENTALLY EXACT OR OBTAIN ANY
DIMINUTION OF HIS OWN OBLIGATION OR ANY INCREASE OF THOSE OF EMPLOYEES
IN THE MATTERS COVERED BY COLLECTIVE AGREEMENT.    HENCE WE FIND THAT
THE CONTENTIONS OF THE COMPANY THAT THE INDIVIDUAL CONTRACTS PRECLUDED
A CHOICE OF REPRESENTATIVES AND WARRANTED REFUSAL TO BARGAIN DURING
THEIR DURATION WERE PROPERLY OVERRULED.  IT FOLLOWS THAT REPRESENTATION
TO THE EMPLOYEES BY CIRCULAR LETTER THAT THEY HAD SUCH LEGAL EFFECT WAS
IMPROPER AND COULD PROPERLY BE PROHIBITED BY THE BOARD. 

ONE MINOR MATTER REMAINS FOR CONSIDERATION.  THE LITERAL TERMS OF THE
BOARD'S ORDER REQUIRE THE COMPANY TO "CEASE AND DESIST FROM (A) GIVING
EFFECT TO THE INDIVIDUAL CONTRACTS OF EMPLOYMENT OR ANY MODIFICATION,
CONTINUATION, EXTENSION, OR RENEWAL THEREOF, OR ENTERING INTO ANY
SIMILAR FORM OF CONTRACT WITH ITS EMPLOYEES FOR ANY PERIOD SUBSEQUENT
TO THE DATE OF THIS DECISION," AND TO GIVE WRITTEN NOTICE TO EACH TO
THAT EFFECT AND THAT "SUCH CONTRACT WILL NOT IN ANY MANNER BE ENFORCED
OR ATTEMPTED TO BE ENFORCED" AND THAT "SUCH DISCONTINUANCE OF THE
CONTRACT IS WITHOUT PREJUDICE TO THE ASSERTION OF ANY LEGAL RIGHTS THE
EMPLOYEE MAY HAVE ACQUIRED UNDER SUCH CONTRACT." 

THESE PROVISIONS, IT HAS BEEN ARGUED, GO BEYOND THE BOARD'S POWER,
LEAVE EMPLOYEES FREE TO BRING BUT THE COMPANY POWERLESS TO DEFEND
ACTIONS ON THE CONTRACT, AND PROHIBIT MAKING FUTURE CONTRACTS EVEN WHEN
NOT OBNOXIOUS TO THE LAW OR TO ANY COLLECTIVE AGREEMENT. 

THE BOARD, OF COURSE, HAS NO POWER TO ADJUDICATE THE VALIDITY OR
EFFECT OF SUCH CONTRACTS EXCEPT AS TO THEIR EFFECT ON MATTERS WITHIN
ITS JURISDICTION.  NATIONAL LICORICE CO. V. LABOR BOARD, SUPRA.  THE
BOARD, HOWEVER, WOULD CONSTRUE THE ORDER MORE NARROWLY THAN ITS TERMS
SUGGEST.  IT SAYS, "THE PROVISION IN QUESTION, AS WE HAVE SEEN, IS
BASED UPON THE FINDING THAT THE CONTRACTS WERE UTILIZED AS A MEANS OF
INTERFERING WITH RIGHTS GUARANTEED BY THE ACT AND CONSTITUTED AN
OBSTACLE TO COLLECTIVE BARGAINING.  READ IN THE CONTEXT OF THIS
FINDING, THE REQUIREMENT OF THE CEASE AND DESIST PROVISIONS ENJOINS
PETITIONER ONLY FROM CONTINUING TO DERIVE BENEFITS FROM THE CONTRACTS
HERETOFORE UTILIZED TO FORESTALL COLLECTIVE BARGAINING AND DETER SELF
ORGANIZATION, AND FROM ENTERING INTO NEW CONTRACTS EITHER FOR THE
PURPOSE OF AGAIN THUS UTILIZING THEM OR UNDER CIRCUMSTANCES IN WHICH
SIMILAR INFRINGEMENT OF THE COLLECTIVE BARGAINING PROCESS WOULD BE A
PROBABLE CONSEQUENCE.  THE PARAGRAPH DOES NOT PREVENT PETITIONER FROM
CONTRACTING WITH INDIVIDUAL EMPLOYEES UNDER CIRCUMSTANCES WHICH
NEGATIVE ANY INTENT TO INTERFERE WITH THE EMPLOYEES' RIGHTS UNDER THE
ACT.  ...  THUS CONSTRUED, THE CHALLENGED REQUIREMENT IS BUT A
REASONABLE SAFEGUARD ...  " 

WE AGREE, BUT THE LITERAL LANGUAGE OF THE ORDER MAY WELL BE READ IN
QUITE DIFFERENT MEANING, ESPECIALLY WHEN SEPARATED FROM FINDINGS AND
STANDING ALONE IN THE COURT'S ENFORCEMENT ORDER.  IT THEN BECOMES THE
LANGUAGE OF THE COURT, AND THE COURT WOULD NOT BE BOUND TO LOOK UPON
THE BOARD'S CONSTRUCTION AS ITS OWN.  QUESTIONS OF CONSTRUCTION HAD
BETTER BE IRONED OUT BEFORE ENFORCEMENT ORDERS ISSUE THAN UPON CONTEMPT
PROCEEDINGS.  A PARTY IS ENTITLED TO A DEFINITION AS EXACT AS THE
CIRCUMSTANCES PERMIT OF THE ACTS WHICH HE CAN PERFORM ONLY ON PAIN OF
CONTEMPT OF COURT.  NOR SHOULD HE BE ORDERED TO DESIST FROM MORE ON THE
THEORY THAT HE MAY VIOLATE THE LITERAL LANGUAGE AND THEN DEFEND BY
RESORT TO THE BOARD'S CONSTRUCTION OF IT.  COURTS' ORDERS ARE NOT TO BE
TRIFLED WITH, NOR SHOULD THEY INVITE LITIGATION AS TO THEIR MEANING. 
IT WILL OCCUR OFTEN ENOUGH WHEN EVERY REASONABLE EFFORT IS MADE TO
AVOID IT.  WHERE, AS HERE, THE LITERAL LANGUAGE OF THE ORDER GOES
BEYOND WHAT THE BOARD ADMITS WAS INTENDED, CORRECTION SHOULD BE MADE. 
PARAGRAPHS 1(A) AND 2(A) OF THE DECREE OF THE COURT BELOW ARE HEREBY
MODIFIED, BY ADDING THE WORDS IN ITALICS, TO READ AS FOLLOWS: 

"1.  CEASE AND DESIST FROM: 

"(A)  GIVING EFFECT TO THE INDIVIDUAL CONTRACTS OF EMPLOYMENT OR ANY
MODIFICATION, CONTINUATION, EXTENSION, OR RENEWAL THEREOF TO FORESTALL
COLLECTIVE BARGAINING OR DETER SELF-ORGANIZATION, OR ENTERING INTO ANY
SIMILAR FORM OF CONTRACT WITH ITS EMPLOYEES FOR ANY PERIOD SUBSEQUENT
TO THE DATE OF THIS DECREE FOR SUCH PURPOSE OR WITH SUCH EFFECT. 

"2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH THE BOARD FINDS WILL
EFFECTUATE THE POLICIES OF THE ACT: 

"(A)  GIVE SEPARATE WRITTEN NOTICE TO EACH OF ITS EMPLOYEES WHO SIGNED
AN INDIVIDUAL CONTRACT OF EMPLOYMENT OR ANY MODIFICATION, CONTINUATION,
EXTENSION, OR RENEWAL THEREOF, OR ANY SIMILAR FORM OF CONTRACT FOR ANY
PERIOD SUBSEQUENT TO THE DATE OF THIS DECREE, THAT SUCH CONTRACT WILL
NOT IN ANY MANNER BE ENFORCED OR ATTEMPTED TO BE ENFORCED TO FORESTALL
COLLECTIVE BARGAINING OR DETER SELF-ORGANIZATION, THAT THE EMPLOYEE IS
NOT REQUIRED OR EXPECTED BY VIRTUE OF SUCH CONTRACT TO DEAL WITH
RESPONDENT INDIVIDUALLY IN RESPECT TO RATES OF PAY, WAGES, HOURS OF
EMPLOYMENT, OR OTHER CONDITIONS OF EMPLOYMENT, AND THAT SUCH
DISCONTINUANCE OF THE CONTRACT IS WITHOUT PREJUDICE TO THE ASSERTION OF
ANY LEGAL RIGHTS THE EMPLOYEE MAY HAVE ACQUIRED UNDER SUCH CONTRACT OR
TO ANY DEFENSES THERETO BY THE EMPLOYER." 

AS SO MODIFIED THE DECREE IS AFFIRMED. 

FN1  SEE HAMBURGER, THE EXTENSION OF COLLECTIVE AGREEMENTS TO COVER
ENTIRE TRADE AND INDUSTRIES (1939) 40 INTERNATIONAL LABOR REVIEW 153;
METHODS OF COLLABORATION BETWEEN PUBLIC AUTHORITIES, WORKERS'
ORGANIZATIONS, AND EMPLOYERS' ORGANIZATIONS (INTERNATIONAL LABOUR
CONFERENCE, 1940) P. 112. 

FN2  CF. LABOR BOARD V. SANDS MFG. CO., 306 U.S. 332; LABOR BOARD V.
COLUMBIAN ENAMELING & STAMPING CO., 306 U.S. 292, 297-98; LABOR BOARD
V. BRASHEAR FREIGHT LINES, 119 F.2D 379; HOENIGER, THE INDIVIDUAL
EMPLOYMENT CONTRACT AND INDIVIDUAL BARGAIN, 10 FORDHAM L. REV. 14, 22
25. 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE JUDGMENT SHOULD BE
REVERSED. 
..END :










TELEGRAPHERS V. RY. EXPRESS AGENCY, 321 U.S. 342 


NO. 343.  ARGUED NOVEMBER 10, 1943.  - DECIDED FEBRUARY 28, 1944.  - 137
F.2D 46, REVERSED. 


1.  FAILURE OF THE CARRIER TO GIVE NOTICE, TO THE REPRESENTATIVE OF
THE EMPLOYEES, OF AN INTENDED CHANGE AFFECTING RATES OF PAY OF CERTAIN
INDIVIDUAL EMPLOYEES WAS IN VIOLATION OF SEC. 6 OF THE RAILWAY LABOR
ACT OF 1926, APPLICABLE TO THE COLLECTIVE AGREEMENT IN QUESTION, AND
RENDERED INEFFECTIVE THE INDIVIDUAL AGREEMENTS ENTERED INTO; AND THE
AWARD OF THE ADJUSTMENT BOARD, BASED ON THE COLLECTIVE AGREEMENT, WAS
IN ACCORDANCE WITH LAW.  P. 346. 

2.  AN AWARD OF THE ADJUSTMENT BOARD UNDER THE RAILWAY LABOR ACT,
HELD ENFORCIBLE IN A PROCEEDING IN THE FEDERAL DISTRICT COURT BEGUN
WITHIN TWO YEARS OF THE DATE OF THE AWARD, AND NOT BARRED BY A STATE
STATUTE OF LIMITATION OF SIX YEARS (EVEN IF APPLICABLE) MERELY BECAUSE
THE CLAIMS BECAME SIX YEARS OLD WHILE PROCEEDINGS WERE PENDING BEFORE
THE BOARD.  P. 348. THE CIRCUIT COURT OF APPEALS, 137 F.2D 46. 

ORDER OF RAILROAD TELEGRAPHERS V. RAILWAY EXPRESS AGENCY, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 320 U.S. 727, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PLAINTIFF IN A SUIT TO ENFORCE AN AWARD OF THE ADJUSTMENT BOARD
UNDER THE RAILWAY LABOR ACT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS HOARY LITIGATION PRESENTS THE QUESTION WHETHER A CARRIER BY
CONTRACTS WITH INDIVIDUAL EMPLOYEES MADE IN 1930 COULD SUPERSEDE OR
EXPAND TERMS OF AN AGREEMENT COLLECTIVELY BARGAINED BETWEEN THE
EMPLOYER AND THE UNION IN 1917, IN VIEW OF THE PROVISIONS OF THE
RAILWAY LABOR ACT OF 1926, WHICH WAS APPLICABLE WHEN THE CONTROVERSY
AROSE. 

PETITIONER WAS A UNION DESIGNATED TO REPRESENT CERTAIN CRAFTS AND
CLASSES OF EMPLOYEES OF CARRIERS BY RAILROAD.  EMPLOYEES HERE INVOLVED
ARE AGENTS AT STATIONS ON THE SEABOARD AIRLINE RAILROAD, WHO PRIMARILY
ARE EMPLOYEES OF THE RAILWAY AND SECONDARILY OF THE RAILWAY EXPRESS
AGENCY; THEY RECEIVE COMPENSATION FROM EACH EMPLOYER.  FOR SOME YEARS
THEY WERE REPRESENTED BY THE UNION IN BARGAINING COLLECTIVE AGREEMENTS
WITH PREDECESSOR EXPRESS COMPANIES.  THE LAST WAS EXECUTED IN 1917 AND
WAS ASSUMED BY THIS RESPONDENT MARCH 1, 1929. 

IN 1930, THE EXPRESS COMPANY BEGAN TO HANDLE NEW BUSINESS CONSISTING
MAINLY OF CARLOAD SHIPMENTS OF PERISHABLES WHICH FORMERLY HAD BEEN
HANDLED BY THE RAILROAD COMPANY AS FREIGHT.  THE EXPRESS COMPANY
THOUGHT THE CHANGE IN VOLUME AND CHARACTER OF ITS SHIPMENTS WARRANTED
AN ADJUSTMENT OF RATES OF PAY APPLICABLE TO CERTAIN OF THE AGENCIES
WHERE THE SHIPMENTS ORIGINATED.  THE RAILWAY LABOR ACT OF 1926, THEN IN
EFFECT, PROVIDED THAT CARRIERS AND REPRESENTATIVES OF EMPLOYEES SHOULD
GIVE AT LEAST THIRTY DAYS' WRITTEN NOTICE OF AN INTENDED CHANGE
AFFECTING RATES OF PAY, RULES, OR WORKING CONDITIONS, AND SHOULD AGREE
UPON TIME AND PLACE OF CONFERENCE.  FN1  THE COLLECTIVE AGREEMENT ALSO
PROVIDED THAT NO CHANGE SHOULD BE MADE IN ITS TERMS "UNTIL AFTER 30
DAYS' NOTICE IN WRITING HAS BEEN GIVEN."  THE EXPRESS COMPANY GAVE NO
SUCH NOTICE TO THE UNION SIGNATORY TO THE 1917 COLLECTIVE AGREEMENT. 
INSTEAD, IT GAVE INDIVIDUAL NOTICES TO THE AGENTS THAT THEIR
COMPENSATION FOR SUCH SHIPMENTS WOULD BE $5.00 PER CAR, THE NOTICES ON
ONE DIVISION GOING OUT ON MARCH 25, AND THOSE ON ANOTHER, APRIL 8, AND
ALL BECOMING EFFECTIVE APRIL 10, 1930.  THE AGENTS INVOLVED, AFTER
VARIOUS OBJECTIONS AND NEGOTIATIONS, INDIVIDUALLY ACCEPTED THE RATE,
ALTHOUGH THERE IS CONTROVERSY AS TO WHETHER THEIR ACCEPTANCE WAS WHOLLY
VOLUNTARY.  FOR PURPOSES OF DECISION, HOWEVER, WE ASSUME VOLUNTARY
ASSENT AND THAT BUT FOR PROVISIONS OF THE RAILWAY LABOR ACT VALID
INDIVIDUAL CONTRACTS RESULTED. 

THE LOCAL CHAIRMAN OF THE UNION PROTESTED AND INSISTED THAT
COLLECTIVE BARGAINING MUST CONTROL THE COMPENSATION OF THE AGENTS.  THE
EXPRESS COMPANY DECLINED TO ACCEDE TO THE CLAIMS, AND THE UNION'S CLAIM
THAT THE AGENTS MUST BE COMPENSATED UNDER THE COLLECTIVE AGREEMENT
REMAINED UNADJUSTED.  ATTEMPTS TO ADJUST WERE RENEWED BY THE GENERAL
CHAIRMAN, BUT NO VOLUNTARY BOARD OF ADJUSTMENT WAS AGREED UPON AS
PROVIDED UNDER SEC. 3 OF THE 1926 ACT.  FN2  THE STATUTORY BOARD WAS
CREATED IN 1934,  FN3  THE COMPANY REFUSED TO JOIN THE UNION IN A
PETITION, AND THE UNION ON OCTOBER 8, 1935, GAVE NOTICE OF ITS
INTENTION TO REFER THE DISPUTE TO THE BOARD.  THE COMPANY CHALLENGED
THE BOARD'S JURISDICTION, A HEARING WAS HAD, THE BI-PARTISAN BOARD
DEADLOCKED, A REFEREE WAS NAMED, AND IN 1936 OBJECTIONS TO JURISDICTION
WERE OVERRULED AND A HEARING ON THE MERITS WAS DIRECTED.  AFTER THE
HEARING THE BOARD AGAIN DEADLOCKED, AGAIN A REFEREE WAS CHOSEN, AND ON
DECEMBER 15, 1937, AN AWARD SUSTAINING THE CLAIMS THAT THE AGENTS WERE
ENTITLED TO THE COMPENSATION PROVIDED BY THE COLLECTIVELY BARGAINED
AGREEMENT WAS MADE, ACCOMPANIED BY A HOLDING THAT THE INDIVIDUAL
CONTRACTS WERE INEFFECTIVE.  THE COMPANY FAILED TO COMPLY WITH THE
AWARD AND IN DECEMBER 1939, AFTER ALMOST TWO YEARS, THE PRESENT ACTION
WAS COMMENCED IN THE UNITED STATES DISTRICT COURT.  THE DISTRICT COURTS
ARE GIVEN JURISDICTION TO ENFORCE AWARDS OF THE BOARD, ITS ORDERS AND
FINDINGS BEING DECLARED TO BE "PRIMA FACIE EVIDENCE OF THE FACTS
THEREIN STATED."  LAWS 1934, C. 691, SEC. 3, FIRST (P), 48 STAT. 1192. 
IN JUNE 1942 DECISION WAS RENDERED BY WHICH THE DISTRICT COURT ENFORCED
THE ADJUSTMENT BOARD'S AWARD.  THE CIRCUIT COURT OF APPEALS REVERSED
UPON THE GROUND THAT THE COLLECTIVE AGREEMENT HAD BEEN SUPERSEDED
VALIDLY BY THE INDIVIDUAL CONTRACTS AND UPON THE FURTHER GROUND THAT
THE CLAIMS UNDER COLLECTIVE AGREEMENTS WERE BARRED BY THE STATUTE OF
LIMITATIONS.  FN4  THESE QUESTIONS ARE UNSETTLED ONES IMPORTANT TO THE
ADMINISTRATION OF THE CURRENT RAILWAY LABOR ACT, AND WE GRANTED
CERTIORARI.  FN5 

1.  THE COMPANY CONTENDS THAT SPECIAL VOLUNTARY INDIVIDUAL CONTRACTS
AS TO RATES OF PAY, RULES, AND CONDITIONS OF EMPLOYMENT MAY VALIDLY BE
MADE, NOTWITHSTANDING THE EXISTENCE OF A COLLECTIVE AGREEMENT, AND THAT
THE TERMS OF THE INDIVIDUAL AGREEMENTS SUPERSEDE THOSE OF THE
COLLECTIVELY BARGAINED ONE.  IF THIS WERE TRUE, STATUTES REQUIRING
COLLECTIVE BARGAINING WOULD HAVE LITTLE SUBSTANCE, FOR WHAT WAS MADE
COLLECTIVELY COULD BE PROMPTLY UNMADE INDIVIDUALLY.  IT IS SAID,
HOWEVER, THAT IN THIS CASE THE AGREEMENTS AFFECT RELATIVELY FEW AGENTS
AND THAT THOSE ARE SPECIALLY AND UNIQUELY SITUATED.  THIS APPARENTLY IS
TRUE, FOR THE APPLICATION OF THE COLLECTIVE AGREEMENT RESULTS IN AN
AWARD OF SOME $40,000 TO ONE AGENT OVER THE PERIOD AND LESS THAN $2,000
TO ALL OF THE OTHERS, AND MOST OF THE AWARDS ARE FOR A FEW HUNDRED
DOLLARS. 

COLLECTIVE BARGAINING WAS NOT DEFINED BY THE STATUTE WHICH PROVIDED
FOR IT, BUT IT GENERALLY HAS BEEN CONSIDERED TO ABSORB AND GIVE
STATUTORY APPROVAL TO THE PHILOSOPHY OF BARGAINING AS WORKED OUT IN THE
LABOR MOVEMENT IN THE UNITED STATES.  FN6  FROM THE FIRST THE POSITION
OF LABOR WITH REFERENCE TO THE WAGE STRUCTURE OF AN INDUSTRY HAS BEEN
MUCH LIKE THAT OF THE CARRIERS ABOUT RATE STRUCTURES.  FN7  IT IS
INSISTED THAT EXCEPTIONAL SITUATIONS OFTEN HAVE AN IMPORTANCE TO THE
WHOLE BECAUSE THEY INTRODUCE COMPETITIONS AND DISCRIMINATIONS THAT ARE
UPSETTING TO THE ENTIRE STRUCTURE.  HENCE EFFECTIVE COLLECTIVE
BARGAINING HAS BEEN GENERALLY CONCEDED TO INCLUDE THE RIGHT OF THE
REPRESENTATIVES OF THE UNIT TO BE CONSULTED AND TO BARGAIN ABOUT THE
EXCEPTIONAL AS WELL AS THE ROUTINE RATES, RULES, AND WORKING
CONDITIONS.  COLLECTIVE BARGAINS NEED NOT AND DO NOT ALWAYS SETTLE OR
EMBRACE EVERY EXCEPTION.  IT MAY BE AGREED THAT PARTICULAR SITUATIONS
ARE RESERVED FOR INDIVIDUAL CONTRACTING, EITHER COMPLETELY OR WITHIN
PRESCRIBED LIMITS.  HAD THIS PROPOSED RATE OF PAY BEEN SUBMITTED TO THE
COLLECTIVE BARGAINING PROCESS IT MIGHT HAVE BEEN SETTLED THEREBY OR
MIGHT HAVE RESULTED IN AN AGREEMENT THAT THE COMPANY SHOULD BE FREE TO
NEGOTIATE WITH THE AGENTS SEVERALLY.  BUT THE COMPANY DID NOT OBSERVE
THE RIGHT OF THE REPRESENTATIVES OF THE WHOLE UNIT TO BE NOTIFIED AND
DEALT WITH CONCERNING A MATTER WHICH FROM AN EMPLOYEE'S POINT OF VIEW
MAY NOT BE EXCEPTIONAL OR WHICH MAY PROVIDE A LEVERAGE FOR TAKING AWAY
OTHER ADVANTAGES OF THE COLLECTIVE CONTRACT. 

THE DECISION IN J.I. CASE CO. V. LABOR BOARD, ANTE, P. 332, CONSIDERS
MORE GENERALLY THE RELATION OF INDIVIDUAL CONTRACTS TO COLLECTIVE
BARGAINING, AND MUCH THAT IS SAID IN THAT OPINION IS APPLICABLE HERE. 

WE HOLD THAT THE FAILURE OF THE CARRIER TO PROCEED AS PROVIDED BY THE
RAILWAY LABOR ACT OF 1926, THEN APPLICABLE, LEFT THE COLLECTIVE
AGREEMENT IN FORCE THROUGHOUT THE PERIOD AND THAT THE CARRIER'S EFFORTS
TO MODIFY ITS TERMS THROUGH INDIVIDUAL AGREEMENTS ARE NOT EFFECTIVE. 
THE AWARD, THEREFORE, WAS IN ACCORDANCE WITH THE LAW. 

2.  THE CIRCUIT COURT OF APPEALS HELD THE CLAIMS BARRED BY THE STATE
SIX-YEAR STATUTE OF LIMITATIONS APPLICABLE IN THE FORUM.  IT IS TRUE
THAT THE ENFORCEMENT OF THE AWARD RESULTS IN ENTERING JUDGMENT IN 1942
ON CLAIMS THAT BEGAN TO ACCRUE IN 1930 AND SOME OF WHICH CEASED TO
ACCRUE OVER SIX YEARS BEFORE THE SUIT IN THE DISTRICT COURT WAS
COMMENCED.  IT ALSO IS TRUE THAT SOME OF THESE HAVE ACCRUED IN LARGE
AMOUNTS. 

IF THE ACTION BROUGHT IN 1939 HAD BEEN A COMMON-LAW ACTION TO RECOVER
WAGES, LIKE THAT IN MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630, A
QUITE DIFFERENT QUESTION OF LIMITATIONS WOULD BE PRESENTED.  THE ACTION
AS BROUGHT, HOWEVER, WAS NOT A COMMON-LAW ACTION BUT ONE OF STATUTORY
ORIGIN TO ENFORCE THE AWARD OF AN ADMINISTRATIVE TRIBUNAL.  A SPECIAL
TWO-YEAR LIMITATION FROM THE TIME OF AWARD WAS PRESCRIBED BY THE
FEDERAL STATUTE,  FN8  AND THIS ACTION WAS BROUGHT WITHIN THAT PERIOD. 
IT IS CLEAR THAT AS AN ACTION TO ENFORCE THE AWARD THE SUIT WAS NOT
BARRED, AND IT MUST THEREFORE HAVE BEEN THE OPINION OF THE CIRCUIT
COURT OF APPEALS THAT THE STATUTE BARRED THE ADMINISTRATIVE TRIBUNAL
FROM MAKING AN AWARD ON CLAIMS SO OLD.  THERE IS NO FEDERAL STATUTE OF
LIMITATIONS APPLICABLE TO UNADJUSTED CLAIMS WHICH THE ADJUSTMENT BOARD
MAY CONSIDER.  IT IS DIFFICULT TO SEE HOW STATE STATUTES OF LIMITATIONS
CAN RESTRICT THE POWER OF THE FEDERAL ADMINISTRATIVE TRIBUNAL TO
CONSIDER AND ADJUST CLAIMS.  MOREOVER, EVEN IF THE SIX-YEAR STATUTE DID
APPLY TO THE CLAIMS UNDER THE COLLECTIVE CONTRACT, AS WE THINK IT DID
NOT, PROCEEDINGS ON THESE CLAIMS WERE INITIATED BEFORE THE BOARD WELL
WITHIN THAT TIME. 

IF, THEREFORE, THESE CLAIMS ARE BARRED, IT MUST BE BECAUSE THE TIME
OCCUPIED IN THEIR LITIGATION BEFORE THE ADJUSTMENT BOARD OPERATES TO
DEFEAT THEM.  A STATE STATUTE OF LIMITATIONS CAN HARDLY DESTROY A CLAIM
BECAUSE THE PERIOD OF ACTUAL CONTEST OVER IT IN A FEDERAL TRIBUNAL
EXTENDS BEYOND THE LIMITATION PERIOD. 

STATUTES OF LIMITATION, LIKE THE EQUITABLE DOCTRINE OF LACHES, IN
THEIR CONCLUSIVE EFFECTS ARE DESIGNED TO PROMOTE JUSTICE BY PREVENTING
SURPRISES THROUGH THE REVIVAL OF CLAIMS THAT HAVE BEEN ALLOWED TO
SLUMBER UNTIL EVIDENCE HAS BEEN LOST, MEMORIES HAVE FADED, AND
WITNESSES HAVE DISAPPEARED.  THE THEORY IS THAT EVEN IF ONE HAS A JUST
CLAIM IT IS UNJUST NOT TO PUT THE ADVERSARY ON NOTICE TO DEFEND WITHIN
THE PERIOD OF LIMITATION AND THAT THE RIGHT TO BE FREE OF STALE CLAIMS
IN TIME COMES TO PREVAIL OVER THE RIGHT TO PROSECUTE THEM.  HERE, WHILE
THE LITIGATION SHOWS NO EVIDENCE OF RECKLESS HASTE ON THE PART OF
EITHER PARTY, IT CANNOT BE SAID THAT THE CLAIMS WERE NOT TIMELY
PURSUED. 

REGRETTABLE AS THE LONG DELAY HAS BEEN IT HAS BEEN CAUSED BY THE
EXIGENCIES OF THE CONTEST, NOT BY THE NEGLECT TO PROCEED.  WE FIND NO
BASIS FOR APPLYING A STATE STATUTE OF LIMITATIONS TO CUT OFF THE RIGHT
OF THE ADJUSTMENT BOARD TO CONSIDER THE CLAIMS OR TO ABSOLVE THE COURTS
FROM THE DUTY TO ENFORCE AN AWARD. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED. 

FN1  SEC. 6, 44 STAT. 582.  THIS PROVIDED:  "CARRIERS AND THE
REPRESENTATIVES OF THE EMPLOYEES SHALL GIVE AT LEAST THIRTY DAYS'
WRITTEN NOTICE OF AN INTENDED CHANGE AFFECTING RATES OF PAY, RULES, OR
WORKING CONDITIONS, AND THE TIME AND PLACE FOR CONFERENCE BETWEEN THE
REPRESENTATIVES OF THE PARTIES INTERESTED IN SUCH INTENDED CHANGES
SHALL BE AGREED UPON WITHIN TEN DAYS AFTER THE RECEIPT OF SAID NOTICE,
AND SAID TIME SHALL BE WITHIN THE THIRTY DAYS PROVIDED IN THE NOTICE. 
...  "  THE 1934 ACT CONTAINS A SIMILAR PROVISION.  SEC. 6, 48 STAT.
1197, 45 U.S.C. SEC. 156. 

FN2  44 STAT. 578. 

FN3  ACT OF 1934, SEC. 3, 48 STAT. 1189.  SEC. 3, FIRST (I) PROVIDES:
"THE DISPUTES BETWEEN AN EMPLOYEE OR GROUP OF EMPLOYEES AND A CARRIER
OR CARRIERS GROVING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS, INCLUDING CASES PENDING AND UNADJUSTED ON THE DATE OF
APPROVAL OF THIS ACT, SHALL BE HANDLED IN THE USUAL MANNER UP TO AND
INCLUDING THE CHIEF OPERATING OFFICER OF THE CARRIER DESIGNATED TO
HANDLE SUCH DISPUTES; BUT, FAILING TO REACH AN ADJUSTMENT IN THIS
MANNER, THE DISPUTES MAY BE REFERRED BY PETITION OF THE PARTIES OR BY
EITHER PARTY TO THE APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD WITH A
FULL STATEMENT OF THE FACTS AND ALL SUPPORTING DATA BEARING UPON THE
DISPUTES." 

FN4  137 F.2D 46. 

FN5  320 U.S. 727. 

FN6  CF. H.J. HEINZ CO. V. LABOR BOARD, 311 U.S. 514, 523-26. 

FN7  SEE LENHOFF, THE PRESENT STATUS OF COLLECTIVE CONTRACTS IN THE
AMERICAN LEGAL SYSTEM, 39 MICH. L. REV. 1109; DAUGHERTY, LABOR PROBLEMS
IN AMERICAN INDUSTRY (1933) P. 415; TAYLOR, LABOR PROBLEMS AND LABOR
LAW (1938) P. 85 ET SEQ.; GOLDEN AND RUTTENBERG, THE DYNAMICS OF
INDUSTRIAL DEMOCRACY (1942) PP. 23-26, 82 ET SEQ. 

FN8  ACT OF 1934, SEC. 3, FIRST (Q), 48 STAT. 1192, 45 U.S.C. SEC.
153, FIRST (Q):  "ALL ACTIONS AT LAW BASED UPON THE PROVISIONS OF THIS
ACTION ACCRUES UNDER THE AWARD OF THE DIVISION OF THE ADJUSTMENT BOARD,
AND NOT AFTER." 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED FOR THE REASONS GIVEN IN THE OPINION OF
..END :
























COMMISSIONER V. LANE-WELLS CO., 321 U.S. 219 


NO. 115.  ARGUED JANUARY 12, 1944.  - DECIDED FEBRUARY 14, 1944.  - 134
F.2D 977, REVERSED. 


1.  WHERE A PERSONAL HOLDING COMPANY, FOR THE YEARS 1934, 1935 AND
1936, FAILED TO MAKE AND FILE A SEPARATE RETURN ON FORM 1120H, AS
REQUIRED BY APPLICABLE AND VALID TREASURY REGULATIONS, IN RESPECT OF
THE SURTAX IMPOSED ON PERSONAL HOLDING COMPANIES BY TITLE IA OF THE
REVENUE ACTS OF 1934 AND 1936, HELD THAT ASSESSMENT OF THE TAX MAY BE
MADE AT ANY TIME, NOTWITHSTANDING THAT THE CORPORATION MADE AND FILED
FOR EACH YEAR A RETURN ON FORM 1120 IN RESPECT OF THE ORDINARY INCOME
TAX IMPOSED BY TITLE I OF THE ACTS.  P. 222. 

THE FILING OF THE ORDINARY INCOME-TAX RETURNS, IN WHICH THE
CORPORATION ERRONEOUSLY DENIED THAT IT WAS A PERSONAL HOLDING COMPANY,
DID NOT START THE STATUTE OF LIMITATIONS RUNNING AGAINST ASSESSMENT OF
THE SURTAX. 

2.  UNDER THE REVENUE ACTS OF 1934 AND 1935, IMPOSITION OF THE
PENALTY FOR FAILURE TO FILE A RETURN (AS DISTINGUISHED FROM TARDILY
FILING) IS MANDATORY; BUT UNDER THE REVENUE ACT OF 1936 THE TAXPAYER
MAY BE RELIEVED OF THE PENALTY WHERE THE FAILURE TO FILE WAS "DUE TO
REASONABLE CAUSE AND NOT DUE TO WILLFUL NEGLECT."  P. 224. 

COMMISSIONER OF INTERNAL REVENUE V. LANE-WELLS CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 320 U.S. 724, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 43 B.T.A. 463, WHICH SUSTAINED THE COMMISSIONER'S
DETERMINATION OF DEFICIENCIES IN PERSONAL-HOLDING-COMPANY SURTAX AND
PENALTIES. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE LANE-WELLS COMPANY IS A TRANSFEREE AND SUCCESSOR OF THE TAXPAYER
TECHNICRAFT ENGINEERING CORPORATION AND AS SUCH IS LIABLE FOR ITS
TAXES.  THE COMMISSIONER, THE BOARD OF TAX APPEALS,  FN1 AND THE
CIRCUIT COURT OF APPEALS  FN2  HAVE HELD THAT TECHNICRAFT WAS A
PERSONAL HOLDING COMPANY IN 1934, 1935, AND 1936, AND THAT QUESTION IS
NO LONGER OPEN. 

FOR THE YEARS NAMED, TECHNICRAFT FILED THE USUAL CORPORATION INCOME
TAX RETURNS ON TREASURY FORM 1120.  ON THIS FORM THE FOLLOWING
APPEARED:  "IS THE CORPORATION A PERSONAL HOLDING COMPANY WITHIN THE
MEANING OF SECTION 351 OF THE REVENUE ACT OF 1934(OR THE APPROPRIATE
YEAR)?  (IF SO, AN ADDITIONAL RETURN ON FORM 1120H MUST BE FILED.)"  TO
THIS EACH YEAR TECHNICRAFT ANSWERED, "NO."  IN NONE OF THE YEARS IN
QUESTION DID IT FILE A PERSONAL HOLDING COMPANY RETURN ON FORM 1120H. 
IT WAS ADVISED, AND IN GOOD FAITH BELIEVED, THAT IT WAS NOT A PERSONAL
HOLDING COMPANY WITHIN THE MEANING OF THE ACT. 

THE COMMISSIONER RELIES UPON THE TAXPAYER'S ALLEGED DEFAULT IN TWO
RESPECTS.  FIRST, THE DEFICIENCY NOTICES WERE GIVEN WITHIN THREE YEARS
OF THE FILING OF THE CORPORATE RETURN ON FORM 1120 FOR THE YEAR 1936,
BUT NOT WITHIN THREE YEARS OF SUCH RETURNS FOR 1934 AND 1935 AND NOT
WITHIN FOUR YEARS (THE PERIOD AS TO A TRANSFEREE) OF THE 1934 RETURN. 
HENCE, A PART OF THE TAX IS BARRED BY THE STATUTE OF LIMITATIONS IF THE
RETURN FILED IS THE ONLY ONE REQUIRED TO START THE STATUTE.  SECOND,
THE COMMISSIONER HAS ASSESSED AND THE BOARD HAS UPHELD AS TO EACH YEAR
A 25 PER CENT PENALTY FOR FAILURE TO FILE THE PERSONAL HOLDING COMPANY
RETURN. 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED THE DECISION OF
THE BOARD OF TAX APPEALS.  IT HELD THE ONE RETURN SUFFICIENT TO START
THE RUNNING OF THE LIMITATION STATUTE AS TO BOTH INCOME TAXES AND
PERSONAL HOLDING COMPANY TAXES AND HELD THAT THERE WAS NO DEFAULT
WARRANTING IMPOSITION OF THE PENALTY.  THIS DECISION CONFLICTED WITH
THAT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN SIMPSON & CO. V.
HELVERING, 128 F.2D 742, AND WE GRANTED CERTIORARI. 

PRIOR TO 1934, AS NOW, PERSONAL HOLDING COMPANIES WERE LIABLE FOR THE
REGULAR CORPORATION INCOME TAXES UNDER TITLE I OF THE REVENUE ACTS AND
THEY, LIKE ALL OTHER CORPORATIONS, WERE SUBJECT TO ADDITIONAL TAX UPON
AN ACCUMULATION OF PROFITS WHERE THERE WAS PRESENT A PURPOSE OF
AVOIDING SURTAXES UPON SHAREHOLDERS.  FN3  THE OBSCURITY OF CORPORATE
TAXPAYERS' PURPOSES AND DIFFICULTIES OF PROOF MADE THE LATTER TAX
SOMETHING OF A DEAD LETTER IN PRACTICE, AND A NEW TAX WAS DEVISED "TO
PROVIDE FOR A TAX WHICH WILL BE AUTOMATICALLY LEVIED UPON THE HOLDING
COMPANY WITHOUT ANY NECESSITY FOR PROVING A PURPOSE OF AVOIDING
SURTAXES."  FN4  THE NEW TAX WAS INCLUDED IN A SEPARATE TITLE OF THE
REVENUE ACT OF 1934, TITLE IA - ADDITIONAL INCOME TAXES, AND
CONSTITUTED SEC. 351, ENTITLED SURTAX ON PERSONAL HOLDING COMPANIES. 
AS PART (C) THEREOF IT ENACTED THAT ADMINISTRATIVE PROVISIONS,
INCLUDING PENALTIES, APPLICABLE IN RESPECT OF THE TAXES IMPOSED BY
TITLE I SHOULD APPLY IN RESPECT OF THE TAX IMPOSED BY THIS SECTION. 
FN5  IT SEEMS CLEAR THAT THIS SECTION CREATED A NEW TAX SEPARATE FROM
THAT ON INCOME OF ORDINARY CORPORATIONS. 

AMONG THE ADMINISTRATIVE PROVISIONS OF TITLE I INCORPORATED BY
REFERENCE IN THE PERSONAL HOLDING COMPANY TAX SECTION ARE SEC. 54(A),
FN6  WHICH REQUIRES ONE LIABLE FOR SUCH TAX TO "MAKE SUCH RETURNS, AND
COMPLY WITH SUCH RULES AND REGULATIONS, AS THE COMMISSIONER, WITH THE
APPROVAL OF THE SECRETARY, MAY FROM TIME TO TIME PRESCRIBE," AND SEC.
62, WHICH DIRECTS THE COMMISSIONER TO PRESCRIBE AND PUBLISH "ALL
NEEDFUL RULES AND REGULATIONS FOR THE ENFORCEMENT OF THIS TITLE."  FN7
PURSUANT THERETO TREASURY REGULATIONS WERE PROMULGATED PROVIDING
UNEQUIVOCALLY:  "A SEPARATE RETURN IS REQUIRED FOR THE SURTAX IMPOSED
UNDER SECTION 351.  SUCH RETURN SHALL BE MADE ON FORM 1120H."  FN8 

THE TAXPAYER HAS NOT COMPLIED WITH THIS REGULATION.  IT SAYS,
HOWEVER, THAT ITS REGULAR CORPORATION INCOME TAX RETURN MUST BE TAKEN
AS AN EQUIVALENT TO THE SEPARATE RETURN, UNDER OUR DECISION IN
GERMANTOWN TRUST CO. V. COMMISSIONER, 309 U.S. 304, BOTH FOR STARTING
THE PERIOD OF LIMITATION AND FOR AVOIDING THE PENALTY.  THE TAXPAYER IN
THE GERMANTOWN CASE FILED A RETURN ON A WRONG FORM.  THE RETURN
CONTAINED, HOWEVER, "ALL OF THE DATA FROM WHICH A TAX COULD BE COMPUTED
AND ASSESSED ALTHOUGH IT DID NOT PURPORT TO STATE ANY AMOUNT DUE AS
TAX," AND THE COURT SAID, "THIS DEFECT FALLS SHORT OF RENDERING IT NO
RETURN WHATEVER."  309 U.S. AT 308, 310.  THERE THE ONLY LIABILITY
INVOLVED WAS FOR A TITLE I INCOME TAX, AND THE RETURN WAS ADDRESSED TO
THAT LIABILITY, AS TO WHICH THE COURT HELD THAT IT SET THE STATUTE OF
LIMITATIONS RUNNING.  HERE THE TAXPAYER IS UNDER LIABILITIES FOR TWO
TAXES AND UNDER AN OBLIGATION TO FILE TWO RETURNS, AND IT SAYS THAT ONE
RETURN ADDRESSED TO BUT ONE OF THE LIABILITIES ANSWERS THE PURPOSE OF
BOTH. 

IT IS CONTENDED BY THE GOVERNMENT THAT THE RETURNS IN THE PRESENT
CASE WERE INSUFFICIENT TO ADVISE THE COMMISSIONER THAT ANY LIABILITY
EXISTED FOR THE HOLDING-COMPANY TAX.  THE BOARD OF TAX APPEALS FOUND
THAT THE RETURNS FILED BY THE CORPORATION DISCLOSED ITS GROSS INCOME
AND DEDUCTIONS AND ITS RESULTING NET INCOME.  43 B.T.A. 470, 471.  THE
CIRCUIT COURT OF APPEALS CONSTRUED THIS AS FINDING THAT THEY "SHOWED
ALL THE FACTS NECESSARY FOR THE RESPONDENT TO COMPUTE THE TAXES AS A
PERSONAL HOLDING COMPANY OBLIGATION."  134 F.2D AT 978.  BUT IT SEEMS
ADMITTED THAT THE RETURNS DID NOT SHOW THE FACTS ON WHICH LIABILITY
WOULD BE PREDICATED.  SUCH LIABILITY WAS EXPRESSLY DENIED BY THE
RETURN, AND TO OBTAIN DATA ON WHICH CORPORATIONS SUBJECT TO THE TAX
COULD BE IDENTIFIED AND ASSESSED WAS THE VERY PURPOSE OF REQUIRING A
SEPARATE RETURN ADDRESSED TO THAT LIABILITY.  TAXPAYER SAYS THAT THE
INFORMATION CALLED FOR BY FORM 1120H IS INFORMATION THAT COULD HAVE
BEEN CALLED FOR BY FORM 1120.  WE ASSUME SO, BUT WE DO NOT SEE HOW THE
FACT HELPS THE TAXPAYER, FOR THE TREASURY WAS FULLY WITHIN THE STATUTE
IN REQUIRING THAT INFORMATION IN A SEPARATE RETURN. 

CONGRESS HAS GIVEN DISCRETION TO THE COMMISSIONER TO PRESCRIBE BY
REGULATION FORMS OF RETURNS AND HAS MADE IT THE DUTY OF THE TAXPAYER TO
COMPLY.  IT THUS IMPLEMENTS THE SYSTEM OF SELF-ASSESSMENT WHICH IS SO
LARGELY THE BASIS OF OUR AMERICAN SCHEME OF INCOME TAXATION.  THE
PURPOSE IS NOT ALONE TO GET TAX INFORMATION IN SOME FORM BUT ALSO TO
GET IT WITH SUCH UNIFORMITY, COMPLETENESS, AND ARRANGEMENT THAT THE
PHYSICAL TASK OF HANDLING AND VERIFYING RETURNS MAY BE READILY
ACCOMPLISHED.  FOR SUCH PURPOSES THE REGULATION REQUIRING TWO SEPARATE
RETURNS FOR THESE TAXES WAS A REASONABLE AND VALID ONE AND THE FINDING
OF THE BOARD OF TAX APPEALS THAT THE TAXPAYER IS IN DEFAULT IS
CORRECT. 

SINCE NO PERSONAL HOLDING COMPANY RETURNS WERE FILED, THE STATUTE OF
LIMITATIONS DID NOT COMMENCE TO RUN,  FN9  AND THE ASSESSMENT OF THE
TAX WAS NOT BARRED.  FN10 

SINCE THE TAXPAYER DEFAULTED IN FILING A REQUIRED RETURN FOR THE
YEARS 1934 AND 1935, THE 25 PER CENT PENALTY IN THE APPLICABLE ACTS
BECAME MANDATORY  FN11  AND WAS CORRECTLY UPHELD BY THE BOARD OF TAX
APPEALS. 

FOR 1936 THE PENALTY PRESENTS A DIFFERENT QUESTION.  THE STATUTE
APPLICABLE PROVIDES THAT IT COULD BE LIFTED IF IT WERE SHOWN THAT SUCH
FAILURE WAS "DUE TO REASONABLE CAUSE AND NOT DUE TO WILLFUL NEGLECT." 
REVENUE ACT OF 1936, SEC. 291, 49 STAT. 1727.  THE BOARD HAS MADE NO
FINDING ON THAT SUBJECT, APPARENTLY ASSUMING THAT THE MANDATORY
PROVISIONS APPLIED TO ALL YEARS.  THE QUESTION IS ONE OF FACT IN THE
FIRST INSTANCE FOR THE BOARD'S DETERMINATION.  DOBSON V. COMMISSIONER,
320 U.S. 489.  THE GOVERNMENT DOES NOT OBJECT TO A REMAND TO THE BOARD
FOR THE LIMITED PURPOSE OF RECONSIDERING THE IMPOSITION OF THE 25 PER
CENT PENALTY FOR THE YEAR 1936 ONLY, IF THE RESPONDENT SHALL SEASONABLY
APPLY TO THE BOARD THEREFOR.  IN ALL THINGS ELSE THE DECISION OF THE
BOARD OF TAX APPEALS IS AFFIRMED.  THE JUDGMENT OF THE COURT OF APPEALS
IS REVERSED, AND THE CAUSE REMANDED WITH DIRECTIONS TO REMAND TO THE
TAX COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. 
REVERSED. 

FN1  43 B.T.A. 463. 

FN2  134 F.2D 977, 980. 

FN3  E.G., REVENUE ACT OF 1932, SEC. 104, 47 STAT. 195. 

FN4  SEN. REP. NO. 558, 73D CONG., 2D SESS., P. 15; 1939-1 CUM.
BULL.  (PART 2) 586, 596. 

FN5  SEC. 351(C) PROVIDES:  "ALL PROVISIONS OF LAW (INCLUDING
PENALTIES) APPLICABLE IN RESPECT OF THE TAXES IMPOSED BY TITLE I OF
THIS ACT, SHALL INSOFAR AS NOT INCONSISTENT WITH THIS SECTION, BE
APPLICABLE IN RESPECT OF THE TAX IMPOSED BY THIS SECTION, EXCEPT THAT
THE PROVISIONS OF SECTION 131 OF THAT TITLE SHALL NOT BE APPLICABLE." 
48 STAT. 752. 

FN6  SEC. 54(A) PROVIDES:  "EVERY PERSON LIABLE TO ANY TAX IMPOSED BY
THIS TITLE OR FOR THE COLLECTION THEREOF, SHALL KEEP SUCH RECORDS,
RENDER UNDER OATH SUCH STATEMENTS, MAKE SUCH RETURNS, AND COMPLY WITH
SUCH RULES AND REGULATIONS, AS THE COMMISSIONER, WITH THE APPROVAL OF
THE SECRETARY, MAY FROM TIME TO TIME PRESCRIBE."  48 STAT. 698. 

FN7  SEC. 62 PROVIDES:  "THE COMMISSIONER, WITH THE APPROVAL OF THE
SECRETARY, SHALL PRESCRIBE AND PUBLISH ALL NEEDFUL RULES AND
REGULATIONS FOR THE ENFORCEMENT OF THIS TITLE."  48 STAT. 700. 

FN8  REGULATIONS 86 AND 94, ARTICLE 351-8. 

FN9  THE STATUTE PROVIDES:  "IN THE CASE OF A FALSE OR FRAUDULENT
RETURN WITH INTENT TO EVADE TAX OR OF A FAILURE TO FILE A RETURN THE
TAX MAY BE ASSESSED, OR A PROCEEDING IN COURT FOR THE COLLECTION OF
SUCH TAX MAY BE BEGUN WITHOUT ASSESSMENT, AT ANY TIME."  SEC. 276(A),
48 STAT. 745. 

FN10  THE TREASURY REGULATION ALSO PROVIDED:  "THE SAME PROVISIONS OF
LAW RELATING TO THE PERIOD OF LIMITATION FOR ASSESSMENT AND COLLECTION
WHICH GOVERN THE TAXES IMPOSED BY TITLE I ALSO APPLY TO THE SURTAX
IMPOSED UNDER TITLE IA.  HOWEVER, SINCE THE SURTAX IMPOSED UNDER TITLE
IA IS A DISTINCT AND SEPARATE TAX FROM THOSE IMPOSED UNDER TITLE I, THE
MAKING OF A RETURN UNDER TITLE I WILL NOT START THE PERIOD OF
LIMITATION FOR ASSESSMENT OF THE SURTAX IMPOSED UNDER TITLE IA.  IF THE
CORPORATION SUBJECT TO SECTION 351 FAILS TO MAKE A RETURN, THE TAX MAY
BE ASSESSED AT ANY TIME."  REGULATIONS 86, ART. 351-8. 

THE COURT OF APPEALS THOUGHT THIS UNAUTHORIZED.  AS WE HAVE
INDICATED, WE DO NOT AGREE THAT IT WAS BEYOND THE DELEGATED AUTHORITY,
AND IT APPEARS ONLY TO DECLARE WHAT WAS EVEN OTHERWISE THE LAW. 

FN11  THE 1934 STATUTE READS:  "IN CASE OF ANY FAILURE TO MAKE AND
FILE A RETURN REQUIRED BY THIS TITLE, WITHIN THE TIME PRESCRIBED BY LAW
OR PRESCRIBED BY THE COMMISSIONER IN PURSUANCE OF LAW, 25 PER CENTUM OF
THE TAX SHALL BE ADDED TO THE TAX, EXCEPT THAT WHEN A RETURN IS FILED
AFTER SUCH TIME AND IT IS SHOWN THAT THE FAILURE TO FILE IT WAS DUE TO
REASONABLE CAUSE AND NOT DUE TO WILLFUL NEGLECT NO SUCH ADDITION SHALL
BE MADE TO THE TAX."  SEC. 291, 48 STAT. 746.  A 25 PER CENT PENALTY IS
LIKEWISE MANDATORY IN THIS CASE UNDER SEC. 406 OF THE REVENUE ACT OF
1935, 49 STAT. 1014.  THIS PROVISION EXCUSES LATE FILING, FOR
REASONABLE CAUSE, BUT NOT COMPLETE FAILURE TO FILE. 
..END :


















R. SIMPSON & CO. V. COMMISSIONER, 321 U.S. 225 


NO. 1.  ARGUED JANUARY 12, 1944.  - DECIDED FEBRUARY 14, 1944.  - 128
F.2D 742, WRIT DISMISSED. 


OF A CASE TO WHICH SEC. 1140(B)(2) OF THE INTERNAL REVENUE CODE IS
APPLICABLE, THIS COURT IS WITHOUT JURISDICTION AFTER A PETITION FOR A
WRIT OF CERTIORARI HAS BEEN DENIED AND THE PERIOD OF 25 DAYS ALLOWED BY
RULE 33 FOR FILING A PETITION FOR REHEARING HAS EXPIRED.  P. 229. 

R. SIMPSON & CO., INC. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 319 U.S. 778, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 44 B.T.A. 498.  THIS COURT HAD PREVIOUSLY
DENIED CERTIORARI, 317 U.S. 677. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

FOR THE YEARS 1934, 1935, AND 1936 THE TAXPAYER, A CORPORATION, FILED
COMPLETE INCOME AND EXCESS-PROFITS TAX RETURNS ON FORM 1120 OF THE
TREASURY DEPARTMENT.  EACH OF THESE INCLUDED A QUESTION WHETHER THE
CORPORATION WAS A PERSONAL HOLDING COMPANY WITHIN THE MEANING OF SEC.
351 OF THE APPLICABLE REVENUE ACT AND STATED THAT IF IT WAS, AN
ADDITIONAL RETURN ON FORM 1120H WAS REQUIRED.  THE TAXPAYER ANSWERED
THE QUESTION IN THE NEGATIVE AND DID NOT IN ANY YEAR FILE PERSONAL
HOLDING COMPANY RETURNS ON FORM 1120H. 

THE COMMISSIONER IMPOSED PERSONAL HOLDING COMPANY SURTAXES FOR EACH
YEAR AND UNDER THE AUTHORITY OF SEC. 406 OF THE REVENUE ACT OF 1935 AND
SEC. 291 OF THE REVENUE ACTS OF 1934 AND 1936 IMPOSED A 25 PER CENT
PENALTY FOR FAILURE TO FILE THE PERSONAL HOLDING COMPANY RETURN. 

THE PRESIDENT, WHO EXECUTED THE INCOME TAX RETURNS, DID NOT FILE
PERSONAL HOLDING COMPANY RETURNS BECAUSE HE THOUGHT THE TAXPAYER WAS
NOT A PERSONAL HOLDING COMPANY WITHIN THE MEANING OF THE ACT.  IT WAS
ACTIVELY ENGAGED IN THE PAWNSHOP BUSINESS.  HOWEVER, MORE THAN 50 PER
CENT OF ITS CAPITAL STOCK WAS OWNED BY LESS THAN FIVE STOCKHOLDERS, AND
MORE THAN 80 PER CENT OF ITS GROSS INCOME WAS DERIVED FROM INTEREST. 
THE TAXPAYER FILED INFORMATION RETURNS SHOWING DIVIDENDS OF OVER $300
PAID TO EACH STOCKHOLDER DURING THOSE YEARS AND ITS BOOKS AND RECORDS
MADE AVAILABLE TO THE COMMISSIONER DURING AUDIT DISCLOSED THE FACTS. 
NO FRAUD OR BAD FAITH IS SUGGESTED. 

THE BOARD OF TAX APPEALS AFFIRMED THE PENALTIES,  FN1  AND ITS
DECISION WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  FN2  THERE
APPEARING TO BE NO CONFLICT OF DECISION BETWEEN CIRCUITS, WE ON
NOVEMBER 9, 1942 DENIED CERTIORARI.  FN3  THE 25-DAY PERIOD ALLOWED BY
OUR RULE IN WHICH TO FILE PETITION FOR REHEARING EXPIRED.  IN FEBRUARY
1943 A CONFLICT DEVELOPED THROUGH DECISION OF LANE-WELLS CO. V.
COMMISSIONER BY THE COURT OF APPEALS FOR THE NINTH CIRCUIT.  FN4
PETITIONER ASKED LEAVE TO FILE OUT OF TIME A PETITION FOR REHEARING AND
WE CONSENTED.  ON JUNE 7, 1943, WE GRANTED PETITION FOR REHEARING,
VACATED THE ORDER DENYING CERTIORARI, AND GRANTED CERTIORARI LIMITED TO
THE PENALTY QUESTION.  FN5  WE ASKED COUNSEL IN VIEW OF SEC. 1140 OF
THE INTERNAL REVENUE CODE AND HELVERING V. NORTHERN COAL CO., 293 U.S.
191, TO DISCUSS OUR JURISDICTION TO GRANT A PETITION FOR REHEARING IN
THE CASE. 

PROVIDES: 

"THE DECISION OF THE TAX COURT SHALL BECOME FINAL - 

"(B)  DECISION AFFIRMED OR PETITION FOR REVIEW DISMISSED.  - 

"(2)  PETITION FOR CERTIORARI DENIED.  - UPON THE DENIAL OF A
PETITION FOR CERTIORARI, IF THE DECISION OF THE TAX COURT HAS BEEN
AFFIRMED OR THE PETITION FOR REVIEW DISMISSED BY THE CIRCUIT COURT OF
APPEALS; OR 

"(3)  AFTER MANDATE OF THE SUPREME COURT.  - UPON THE EXPIRATION OF
30 DAYS FROM THE DATE OF ISSUANCE OF THE MANDATE OF THE SUPREME COURT,
IF SUCH COURT DIRECTS THAT THE DECISION OF THE BOARD BE AFFIRMED OR THE
PETITION FOR REVIEW DISMISSED." 

THERE ARE OTHER PROVISIONS DEALING WITH THE SITUATIONS WHERE THE
BOARD'S DECISION IS MODIFIED OR REVERSED BY THE CIRCUIT COURT OF
APPEALS OR BY THIS COURT, THE PURPOSE BEING TO DETERMINE DEFINITELY THE
DATE ON WHICH THE STATUTE OF LIMITATIONS, SUSPENDED DURING APPEAL,
BEGINS TO RUN AGAIN AND ASSESSMENT MAY BE MADE BY THE COMMISSIONER. 
THE REVENUE ACT OF 1926 HAD IDENTICAL PROVISIONS.  FN6  IN REPORTING
UPON THE PROVISION IN THE REVENUE BILL OF 1926, THE SENATE COMMITTEE
SAID:  "SECTION 1005 PRESCRIBES THE DATE ON WHICH A DECISION OF THE
BOARD (WHETHER OR NOT REVIEW THEREOF IS HAD) IS TO BECOME FINAL. 
INASMUCH AS THE STATUTE OF LIMITATIONS UPON ASSESSMENTS AND SUITS FOR
COLLECTION, BOTH OF WHICH ARE SUSPENDED DURING REVIEW OF THE
COMMISSIONER'S DETERMINATION, COMMENCES TO RUN UPON THE DAY UPON WHICH
THE BOARD'S DECISION BECOMES FINAL, IT IS OF UTMOST IMPORTANCE THAT
THIS TIME BE SPECIFIED AS ACCURATELY AS POSSIBLE.  IN SOME INSTANCES IN
ORDER TO ACHIEVE THIS RESULT THE USUAL RULES OF LAW APPLICABLE IN COURT
PROCEDURE MUST BE CHANGED.  FOR EXAMPLE, THE POWER OF THE COURT OF
REVIEW TO RECALL ITS MANDATE IS MADE TO EXPIRE 30 DAYS FROM THE DATE OF
ISSUANCE OF THE MANDATE."  SEN. REP. NO. 52, 69TH CONG., 1ST SESS., P.
37. 

IN HELVERING V. NORTHERN COAL CO., SUPRA, WE CONSIDERED THE PROVISION
OF THE 1926 ACT, CORRESPONDING TO SEC. 1140(B)(3) OF THE INTERNAL
REVENUE CODE, DEALING WITH ISSUANCE OF MANDATE BY THIS COURT.  THE
QUESTION WAS WHETHER NOTWITHSTANDING THE LAPSE OF MORE THAN THIRTY DAYS
AFTER MANDATE WE COULD GRANT A PETITION FOR REHEARING, AND IT WAS URGED
THAT THIS STATUTE DID NOT QUALIFY THE INHERENT POWER OF THE COURT TO
RECONSIDER ITS JUDGMENTS THROUGHOUT THE TERM IN WHICH THEY ARE
ENTERED.  QUOTING THE STATUTE, WE HELD:  "IN VIEW OF THE AUTHORITATIVE
AND EXPLICIT REQUIREMENT OF THE STATUTE AND OF ITS APPLICATION TO THESE
CASES, THE PETITIONS FOR REHEARING ARE SEVERALLY DENIED." 

WHILE IT APPEARS THAT WE HAVE A NUMBER OF TIMES GRANTED CERTIORARI TO
REVIEW DECISIONS IN CASES ORIGINATING WITH THE TAX COURT AFTER ONCE
DENYING THE PETITIONS, DUQUESNE STEEL FOUNDRY CO. V. BURNET, CERTIORARI
DENIED, 282 U.S. 878, CERTIORARI GRANTED, 282 U.S. 830; NEUBERGER V.
COMMISSIONER, CERTIORARI DENIED, 308 U.S. 623, CERTIORARI GRANTED, 310
U.S. 655; CRANE-JOHNSON CO. V. COMMISSIONER, CERTIORARI DENIED, 308
U.S. 627, CERTIORARI GRANTED, 309 U.S. 692; HELVERING V. CEMENT
INVESTORS, CERTIORARI DENIED, 315 U.S. 802, CERTIORARI GRANTED, 315
U.S. 825, IN ALL BUT ONE OF THESE CASES THE PETITION FOR REHEARING WAS
FILED WITHIN 25 DAYS AFTER THE DENIAL OF CERTIORARI.  IN THE OTHER, THE
QUESTION OF JURISDICTION WAS NOT RAISED OR CONSIDERED, AND THEREFORE IT
DOES NOT ESTABLISH A CONSTRUCTION OF THE STATUTE.  UNITED STATES V.
MORE, 3 CRANCH 159, 172; SNOW V. UNITED STATES, 118 U.S. 346, 354;
CROSS V. BURKE, 146 U.S. 82, 86; LOUISVILLE TRUST CO. V. KNOTT, 191
U.S. 225, 236; ARANT V. LANE, 245 U.S. 166, 170. 

IT SOMETIMES IS DESIRABLE IN THE LIGHT OF EVENTS TO GRANT A
PREVIOUSLY DENIED WRIT OF CERTIORARI, AS WHERE IT APPEARS THE QUESTION
MUST LATER BE TAKEN BECAUSE OF CONFLICT.  A GRANT IN SUCH A CASE NOT
ONLY ENABLES US TO DO JUSTICE TO THE PARTY IF IT APPEARS THAT HE HAS
THE RIGHT OF THE CONTROVERSY, BUT ALSO IT GIVES US THE BENEFIT OF
ARGUMENT AND EXAMINATION OF THE ADDITIONAL OR CONTRARY ASPECTS OF THE
QUESTION PRESENTED BY THE CASE.  OUR RULES PROVIDE FOR PETITIONS FOR
REHEARING AS MATTER OF RIGHT WITHIN 25 DAYS AFTER JUDGMENT,  FN7  AND
THIS RULE HAS BEEN APPLIED TO PETITIONS FOR REHEARINGS OF ORDERS
DENYING CERTIORARI.  WE HAVE APPLIED IT TO CASES FALLING WITHIN THE
PURVIEW OF SEC. 1140(B)(2).  NO MANDATE ISSUES ON DENIAL OF CERTIORARI,
AND AFTER A FINAL DECISION THE MANDATE DOES NOT ISSUE UNTIL EXPIRATION
OF THE 25-DAY PERIOD WITHIN WHICH PETITION FOR REHEARING MAY BE FILED. 
FN8  IF, THEREFORE, WE FOLLOW THE PRACTICE HERETOFORE OBSERVED, BY
WHICH WE REGARD DENIALS OF CERTIORARI AS QUALIFIED UNTIL THE 25-DAY
PERIOD EXPIRES, WE PUT THE DENIAL AND THE DECISION ON A GENERALLY EQUAL
BASIS EXCEPT AS CONGRESS HAS SEEN FIT TO GIVE THE LATTER AN ADDITIONAL
THIRTY DAYS BEFORE FINALITY.  THE GOVERNMENT AFTER CONSIDERATION OF THE
PRACTICAL ASPECTS OF THE QUESTION ADVISES THAT IN ITS VIEW OUR PRACTICE
IN THESE MATTERS HAS BEEN "SALUTARY AND IN ACCORDANCE WITH SOUND
POLICY."  THERE APPEARS TO BE NO GOOD REASON, THEREFORE, TO HOLD THAT
THE RULE AS TO REHEARINGS, IN SO FAR AS IT PERMITS AS MATTER OF RIGHT
THE FILING OF PETITION THEREFOR WITHIN 25 DAYS, MAY NOT APPLY TO THIS
CLASS OF CASES.  BUT WHEN UNDER OUR RULES OUR DENIAL HAS BECOME FINAL,
THIS STATUTE DEPRIVES US OF JURISDICTION OVER THE CASE. 

ACCORDINGLY THE WRIT OF CERTIORARI IS DISMISSED FOR WANT OF
JURISDICTION. 

FN1  44 B.T.A. 498. 

FN2  128 F.2D 742. 

FN3  317 U.S. 677. 

FN4  134 F.2D 977. 

FN5  319 U.S. 778. 

FN6  SEC. 1005, 44 STAT. 110. 

FN7  RULE 33. 

FN8  RULE 34. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MURPHY AND MR. JUSTICE
RUTLEDGE CONCUR, DISSENTING: 

I CAN FIND NO WARRANT IN SEC. 1140 OF THE INTERNAL REVENUE CODE FOR
SAYING THAT THE DECISION OF THE TAX COURT BECOMES "FINAL" ONLY AFTER
THE EXPIRATION OF THE 25-DAY PERIOD WITHIN WHICH A PETITION FOR
REHEARING MAY BE FILED.  THE SECTION CONTAINS NO SUCH PROVISION.  THE
25-DAY PERIOD FOR REHEARINGS IS PRESCRIBED BY OUR RULE 33.  BUT OUR
AUTHORITY TO GRANT PETITIONS FOR REHEARING DURING THE TERM RISES FROM
THE SAME SOURCE.  SEE WAYNE UNITED GAS CO. V. OWENS-ILLINOIS GLASS CO.,
300 U.S. 131, 136-137; ART METAL CONSTRUCTION CO. V. UNITED STATES, 289
U.S. 706; BRONSON V. SCHULTEN, 104 U.S. 410, 415.  HENCE I SEE NO BASIS
FOR SAYING THAT ONE, BUT NOT THE OTHER, QUALIFIES THAT PROVISION OF
SEC. 1140 WHICH STATES THAT THE DECISION OF THE TAX COURT BECOMES FINAL
"UPON DENIAL OF A PETITION FOR CERTIORARI." 
..END :





















DOBSON V. COMMISSIONER, 321 U.S. 231 


DECIDED FEBRUARY 14, 1944.  - REHEARING DENIED. 


THE RECOVERIES HERE IN QUESTION WERE NOT AS MATTER OF LAW PROCEEDS OF
THE "SALE OR EXCHANGE" OF A CAPITAL ASSET, AND WERE PROPERLY TAXED AS
ORDINARY INCOME RATHER THAN AS CAPITAL GAIN UNDER SEC. 117 OF THE
INTERNAL REVENUE CODE.  P. 232. 

DOBSON V. COMMISSIONER OF INTERNAL REVENUE. 

NO. 44.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT* . 

*TOGETHER WITH NO. 47, HARWICK V. COMMISSIONER OF INTERNAL REVENUE,
ALSO ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

ON PETITION FOR REHEARING OF TWO OF THE FOUR CASES DECIDED IN DOBSON
V. COMMISSIONER, 320 U.S. 489. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITION FOR REHEARING IN TWO OF THE FOUR CASES DECIDED TOGETHER ON
DECEMBER 20, 1943 STATES THAT THESE CONTAINED AN ISSUE NOT PRESENT AND
NOT CONSIDERED IN THE MAIN CASE.  IN THESE TWO CASES THE TAX COURT HELD
THAT RECOVERIES BY THESE TAXPAYERS IN 1939 DID CONSTITUTE TAXABLE
INCOME.  IT HELD, ALSO, THAT THE RECOVERY WAS TAXABLE AS ORDINARY
INCOME, DESPITE TAXPAYER'S CONTENTION THAT IT SHOULD BE TAXED AS
CAPITAL GAIN UNDER SEC. 117 OF THE INTERNAL REVENUE CODE.  THIS
CONTENTION, THE PETITION SAYS, PRESENTS QUESTIONS OF LAW TO BE
DETERMINED BY THIS COURT, RATHER THAN OF FACT FINALLY TO BE DETERMINED
BY THE TAX COURT. 

THE WEAKNESS OF TAXPAYERS' POSITION LIES IN THE FACT THAT NOT EVERY
GAIN GROWING OUT OF A TRANSACTION CONCERNING CAPITAL ASSETS IS ALLOWED
THE BENEFITS OF THE CAPITAL GAINS TAX PROVISION.  THOSE ARE LIMITED BY
DEFINITION TO GAINS FROM "THE SALE OR EXCHANGE" OF CAPITAL ASSETS. 
INTERNAL REVENUE CODE SEC. 117(2), (3), (4), (5). 

WE CERTAINLY CANNOT SAY THAT THE ITEMS IN QUESTION WERE AS MATTER OF
LAW PROCEEDS OF THE "SALE OR EXCHANGE" OF A CAPITAL ASSET.  HARWICK
ASSERTED A CLAIM, AND THE THREE OTHER TAXPAYERS INVOLVED IN THESE CASES
FILED SUIT, AGAINST THE NATIONAL CITY COMPANY, DEMANDING RESCISSION OF
THEIR PURCHASES OF STOCK.  THEIR CLAIMS WERE COMPROMISED OR ADMITTED;
THE TAXPAYERS SEEK TO LINK THE RECOVERIES RESULTING THEREFROM WITH
THEIR PRIOR SALES OF THE STOCK, WHICH RESULTED IN LOSSES.  THE TAX
COURT DID NOT FIND AS MATTER OF FACT, AND WE DECLINE TO SAY AS MATTER
OF LAW, THAT SUCH A TRANSACTION IS A "SALE OR EXCHANGE" OF A CAPITAL
ASSET IN THE ACCEPTED MEANING OF THOSE TERMS.  CF. HELVERING V. FLACCUS
LEATHER CO., 313 U.S. 247; FAIRBANKS V. UNITED STATES, 306 U.S. 436. 
IN HELVERING V. HAMMEL, 311 U.S. 504; ELECTRO-CHEMICAL ENGRAVING CO. V.
COMMISSIONER, 311 U.S. 513; HELVERING V. NEBRASKA BRIDGE SUPPLY &
LUMBER CO., 312 U.S. 666, ON WHICH PETITIONERS RELY, WE HELD AS MATTER
OF LAW THAT LOSSES RESULTING FROM A SALE WERE NOT TO BE DENIED THE
BENEFITS OF THE CAPITAL LOSSES PROVISIONS BECAUSE THE SALE WAS A FORCED
OR INVOLUNTARY ONE, AS UPON FORECLOSURE.  THOSE CASES ARE NO AID TO
PETITIONERS HERE. 

PETITION FOR REHEARING IS DENIED. 

MR. JUSTICE DOUGLAS DISSENTS. 
..END :











BROWN V. GERDES, 321 U.S. 178 


NO. 183.  ARGUED JANUARY 4, 1944.  - DECIDED FEBRUARY 7, 1944.  - 290
N.Y. 468, 49 N.E.2D 718, AFFIRMED. 


1.  IN A REORGANIZATION PROCEEDING UNDER CH. X OF THE BANKRUPTCY ACT,
THE BANKRUPTCY COURT HAS EXCLUSIVE JURISDICTION TO DETERMINE THE AMOUNT
WHICH SHALL BE ALLOWED OUT OF THE BANKRUPT ESTATE FOR SERVICES OF
ATTORNEYS WHO, BY AUTHORITY OF THE BANKRUPTCY COURT, REPRESENTED THE
BANKRUPT ESTATE IN LITIGATION IN A STATE COURT.  P. 180. 

2.  THE PETITION FOR REORGANIZATION IN THIS CASE HAVING BEEN APPROVED
SUBSEQUENTLY TO THE EFFECTIVE DATE OF CH. X, THE RESULT IS UNAFFECTED
BY THE FACT THAT THE PETITION WAS FILED AND THE MAIN SUIT IN THE STATE
COURT LITIGATION WAS INSTITUTED PRIOR TO THAT DATE.  P. 184. 

3.  NOR IS THE RESULT AFFECTED BY THE FACT THAT THE LITIGATION IN THE
STATE COURT WAS WITHIN THE EXCLUSIVE JURISDICTION OF THAT COURT.  P.
185. 

4.  IT DOES NOT APPEAR HERE THAT THE STATE HAS IMPOSED CONDITIONS FOR
ENTRY INTO ITS COURTS WHICH ARE INCONSISTENT WITH THE AUTHORITY OF THE
BANKRUPTCY COURT.  P. 186. 

5.  ASSUMING THAT THE STATE COURT COULD DECLINE JURISDICTION OF THE
SUITS TO ENFORCE CLAIMS OF THE BANKRUPT ESTATE, IT COULD NOT TAKE
JURISDICTION OF THEM BUT FAIL TO APPLY THE FEDERAL RULE GOVERNING THE
COMPENSATION OF THOSE WHO ARE EMPLOYED BY THE BANKRUPTCY COURT AND WHO
REPRESENT IT IN THE STATE TRIBUNAL.  P. 186. 

BROWN ET AL. V. GERDES ET AL., TRUSTEES. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

CERTIORARI, 320 U.S. 722, TO REVIEW THE REVERSAL OF AN ORDER OF THE
LOWER STATE COURTS WHICH FIXED THE AMOUNTS OF FEES AND LIENS FOR
SERVICES RENDERED BY THE PLAINTIFFS AS ATTORNEYS FOR A BANKRUPT
ESTATE.  SEE ALSO 290 N.Y. 868, 50 N.E.2D 249. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE NEW YORK COURT OR THE
FEDERAL BANKRUPTCY COURT HAS THE POWER TO FIX THE FEES OF PETITIONERS
WHO AS ATTORNEYS REPRESENTED THE BANKRUPTCY ESTATE IN LITIGATION IN THE
STATE COURTS.  THE NEW YORK COURT OF APPEALS HELD THAT THAT
JURISDICTION RESTED EXCLUSIVELY IN THE BANKRUPTCY COURT.  290 N.Y. 468,
49 N.E.2D 718.  THE CASE IS HERE ON A PETITION FOR WRIT OF CERTIORARI
WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE PROBLEM UNDER THE
BANKRUPTCY ACT. 

IN JANUARY, 1939, A PETITION FOR REORGANIZATION OF REYNOLDS INVESTING
CO., INC. WAS APPROVED UNDER CH. X OF THE BANKRUPTCY ACT.  52 STAT.
883, 11 U.S.C. SEC. 501.  IN AUGUST, 1938, WHILE THE PETITION WAS
PENDING BUT BEFORE ITS APPROVAL, THE BANKRUPTCY COURT AUTHORIZED THE
DEBTOR TO COMMENCE AN ACTION IN THE NEW YORK COURTS TO ENFORCE AND
COLLECT CERTAIN CLAIMS WHICH THE DEBTOR HAD AGAINST ITS FORMER OFFICERS
AND DIRECTORS.  SEE 28 N.Y.S.2D 622.  IT ALSO AUTHORIZED RETENTION OF
PETITIONERS AS COUNSEL IN THE SUIT.  AFTER THE APPROVAL OF THE PETITION
THE RESPONDENT TRUSTEES WERE AUTHORIZED TO PROSECUTE THE ACTION AND TO
BE SUBSTITUTED AS PLAINTIFFS.  THAT WAS DONE; AND OTHER ACTIONS WERE
INSTITUTED BY THE TRUSTEES UNDER ORDER OF THE BANKRUPTCY COURT WITH
PETITIONERS AS COUNSEL.  IN 1941 BEFORE FINAL JUDGMENTS WERE OBTAINED
IN ANY OF THE SUITS, THE TRUSTEES DISCONTINUED PETITIONERS' SERVICES. 
THEREAFTER PETITIONERS, PURSUANT TO A STIPULATION  FN1  WHICH RESERVED
RESPONDENTS' RIGHT TO QUESTION THE JURISDICTION OF THE STATE COURT,
INSTITUTED THIS SUIT IN THAT COURT TO FIX AND ENFORCE THEIR LIENS ON
THE ACTIONS UNDER SEC. 475 OF THE NEW YORK JUDICIARY LAW.  FN2
RESPONDENTS' OBJECTION TO THE JURISDICTION OF THE STATE COURT WAS
OVERRULED, THE VALUE OF PETITIONERS' SERVICES DETERMINED, AND THE LIENS
FIXED.  THOSE ORDERS WERE AFFIRMED BY THE APPELLATE DIVISION (264 APP.
DIV. 852, 36 N.Y.S.2D 420) BUT REVERSED BY THE COURT OF APPEALS.  AND
AS WE READ THE OPINION OF THAT COURT THE BASIS OF ITS DECISION WAS THAT
"EXCLUSIVE JURISDICTION" TO FIX THESE FEES WAS IN THE BANKRUPTCY COURT
(290 N.Y. 472, 473, 475), NOT THAT NEW YORK AS A MATTER OF LOCAL LAW OR
POLICY WOULD NOT UNDERTAKE TO FIX THEM BECAUSE OF THE SPECIAL
CIRCUMSTANCES OF THIS CASE. 

WE AGREE WITH THE COURT OF APPEALS THAT THE POWER TO DETERMINE THE
AMOUNT OF THESE FEES RESTS EXCLUSIVELY IN THE BANKRUPTCY COURT. 

SEC. 77B, LIKE SEC. 77 OF THE BANKRUPTCY ACT,  FN3  HAD AS ONE OF ITS
PURPOSES THE ESTABLISHMENT OF MORE EFFECTIVE CONTROL OVER
REORGANIZATION FEES AND EXPENSES (DICKINSON INDUSTRIAL SITE V. COWAN,
309 U.S. 382, 388; CALLAGHAN V. RECONSTRUCTION FINANCE CORP., 297 U.S.
464, 469) IN RECOGNITION OF THE EFFECT WHICH A DEPLETION OF THE CASH
RESOURCES OF THE ESTATE MAY HAVE ON BOTH THE FAIRNESS AND FEASIBILITY
OF THE PLAN OF REORGANIZATION.  UNITED STATES V. CHICAGO, M., ST. P. &
P.R. CO., 282 U.S. 311, 333-340(DISSENTING OPINION).  AND CH. X OF THE
CHANDLER ACT WHICH TOOK THE PLACE OF SEC. 77B SET UP EVEN MORE
COMPREHENSIVE SUPERVISION OVER COMPENSATION AND ALLOWANCES (H. REP. NO.
1409, 75TH CONG., 1ST SESS., PP. 45-46) AND PROVIDED A CENTRALIZED
CONTROL OVER ALL ADMINISTRATION EXPENSES, OF WHICH LAWYERS' FEES ARE A
PART.  WATKINS V. SEDBERRY, 261 U.S. 571.  SEC. 241 GIVES THE JUDGE
AUTHORITY TO FIX "REASONABLE COMPENSATION FOR SERVICES RENDERED" BY
VARIOUS PERSONS, INCLUDING ATTORNEYS FOR THE TRUSTEES.  ALLOWANCES MAY
BE MADE ONLY AFTER HEARING AND UPON NOTICE TO SPECIFIED PERSONS AND
GROUPS OF PERSONS.  SEC. 247.  WHERE THE REORGANIZATION SUPERSEDES A
PRIOR PROCEEDING IN EITHER THE FEDERAL OR STATE COURT THE BANKRUPTCY
COURT IS THE ONE WHICH IS AUTHORIZED TO ALLOW THE "REASONABLE COSTS AND
EXPENSES INCURRED" IN THE PRIOR PROCEEDING.  SEC. 258.  IN ALL CASES
PERSONS WHO SEEK COMPENSATION FOR SERVICES OR REIMBURSEMENT FOR
EXPENSES ARE HELD TO FIDUCIARY STANDARDS.  SEC. 249; WOODS V. CITY
NATIONAL BANK CO., 312 U.S. 262, 267-269.  AND SEC. 250 CONTAINS
SPECIAL APPEAL PROVISIONS GOVERNING ORDERS GRANTING OR DENYING
ALLOWANCES.  DICKINSON INDUSTRIAL SITE V. COWAN, SUPRA.  MOREOVER, A
PLAN OF REORGANIZATION MUST PROVIDE "FOR THE PAYMENT OF ALL COSTS AND
EXPENSES OF ADMINISTRATION AND OTHER ALLOWANCES WHICH MAY BE APPROVED
OR MADE BY THE JUDGE."  SEC. 216(3).  IN ADDITION THE PLAN MUST
PROVIDE, IN FURTHERANCE OF THE PURPOSE OF THE ACT TO PROTECT THE
SECURITY HOLDERS AGAINST PREVIOUS ACTS OF MISMANAGEMENT AND TO PRESERVE
ALL ASSETS OF THE ESTATE (S. REP. NO. 1916, 75TH CONG., 3D SESS., P.
22; H. REP. NO. 1409, SUPRA, PP. 42-44), FOR RETENTION AND ENFORCEMENT
BY THE TRUSTEE OF ALL CLAIMS OF THE DEBTOR OR THE ESTATE NOT SETTLED OR
ADJUSTED IN THE PLAN.  SEC. 216(13).  FINALLY, SEC. 221(4) PROVIDES
THAT IN APPROVING ANY PLAN THE JUDGE MUST BE SATISFIED THAT "ALL
PAYMENTS MADE OR PROMISED" BY THE DEBTOR, THE NEW COMPANY, OR ANY OTHER
PERSON, "FOR SERVICES AND FOR COSTS AND EXPENSES" ARE NOT ONLY FULLY
DISCLOSED BUT "ARE REASONABLE OR, IF TO BE FIXED AFTER CONFIRMATION OF
THE PLAN, WILL BE SUBJECT TO THE APPROVAL OF THE JUDGE." 

THUS CH. X NOT ONLY CONTAINS DETAILED MACHINERY GOVERNING ALL CLAIMS
FOR ALLOWANCES FROM THE ESTATE, IT ALSO REQUIRES THE PLAN TO CONTAIN
PROVISIONS FOR THE PAYMENT OF ALL ALLOWANCES AND PLACES ON THE JUDGE
THE DUTY TO PASS ON THEIR REASONABLENESS.  THE APPROVAL OF THE PLAN OF
REORGANIZATION HAS BEEN ENTRUSTED TO THE BANKRUPTCY COURT EXCLUSIVELY. 
EVEN REPORTS ON PLANS SUBMITTED BY THE SECURITIES AND EXCHANGE
COMMISSION ARE "ADVISORY ONLY."  SEC. 172.  IT COULD HARDLY BE
CONTENDED THAT THE BANKRUPTCY COURT MIGHT DISPENSE WITH THE FINDING
REQUIRED BY SEC. 221 (2) THAT THE PLAN IS "FAIR AND EQUITABLE, AND
FEASIBLE" AND CONFIRM THE PLAN ON ANOTHER BASIS OR DELEGATE THE TASK TO
ANOTHER COURT OR AGENCY.  SEE CASE V. LOS ANGELES LUMBER PRODUCTS CO.,
308 U.S. 106, 114-115; CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, 312
U.S. 510.  BUT IF THAT CANNOT BE DONE, IT IS DIFFICULT TO SEE HOW A
PLAN COULD BE CONFIRMED WHICH LEFT THE APPROVAL OF CERTAIN ALLOWANCES
TO A STATE COURT.  THE FINDING AS TO ALLOWANCES REQUIRED BY SEC. 221(4)
IS AS EXPLICIT AND AS MANDATORY AS THE FINDING OF "FAIR AND EQUITABLE,
AND FEASIBLE" REQUIRED BY SEC. 221(2).  ON EACH CONGRESS HAS ASKED FOR
THE INFORMED JUDGMENT OF THE BANKRUPTCY COURT, NOT ANOTHER COURT OR
AGENCY.  IN THE PRESENT CASE THE PLAN OF REORGANIZATION WHICH WAS
APPROVED IN 1940 GAVE THE TRUSTEES FULL POWER TO RETAIN OR DISPLACE
ATTORNEYS REPRESENTING THEM; AND IT RETAINED IN THE BANKRUPTCY COURT
CONTINUING JURISDICTION OVER ALL CLAIMS IN FAVOR OF THE DEBTOR AND THE
PROSECUTION THEREOF.  AND IN ACCORDANCE WITH THE EXPRESS REQUIREMENTS
OF SEC. 241(3) IT LEFT TO THE BANKRUPTCY COURT THE POWER TO FIX THE
"REASONABLE COMPENSATION" TO BE PAID THE ATTORNEYS OF THE TRUSTEES. 
THOSE REQUIREMENTS, PRESCRIBED BY THE ACT, CAUSE ANY CONFLICTING
PROCEDURE IN THE STATE COURTS TO GIVE WAY.  FN4  KALB V. FEUERSTEIN,
308 U.S. 433.  THE JURISDICTION WHICH CONGRESS HAS CONFERRED ON THE
BANKRUPTCY COURT IS PARAMOUNT AND EXCLUSIVE.  GROSS V. IRVING TRUST
CO., 289 U.S. 342.  THUS THE SUPERVENTION OF BANKRUPTCY DEPRIVES A
STATE COURT, IN WHICH A RECEIVERSHIP WAS PENDING, OF POWER TO FIX THE
COMPENSATION OF THE RECEIVERS AND THEIR COUNSEL WHO WERE APPOINTED BY
THE STATE COURT AND WHO RENDERED SERVICE IN THE STATE PROCEEDINGS. 
GROSS V. IRVING TRUST CO., SUPRA; EMIL V. HANLEY, 318 U.S. 515, 519. 

SHERMAN V. BUCKLEY, 119 F.2D 280, WHICH AROSE IN ORDINARY BANKRUPTCY,
IS RELIED UPON FOR THE CONTRARY CONCLUSION.  IN THAT CASE AN ACTION
BROUGHT BY THE BANKRUPT HAD BEEN PENDING IN THE STATE COURT FOR SEVEN
YEARS BEFORE THE ADJUDICATION IN BANKRUPTCY.  THE TRUSTEE OBTAINED THE
CONSENT OF THE BANKRUPTCY COURT TO ALLOW THE ACTION TO BE PROSECUTED IN
THE STATE COURT ON BEHALF OF THE ESTATE AND TO SUBSTITUTE ATTORNEYS
OTHER THAN THOSE RETAINED BY THE BANKRUPT.  IT WAS HELD THAT THE STATE
COURT COULD REQUIRE AS A CONDITION UPON THE SUBSTITUTION THE
LIQUIDATION OF THE NEW YORK CHARGING LIEN OF THE DISPLACED ATTORNEYS. 
WHETHER THAT CASE WAS CORRECTLY DECIDED ON ITS FACTS WE NEED NOT STOP
TO INQUIRE.  IT IS SUFFICIENT TO SAY THAT IT DOES NOT STATE THE CORRECT
RULE OF LAW UNDER CH. X OF THE ACT. 

IT IS SAID, HOWEVER, THAT SEC. 77B RATHER THAN CH. X MEASURES THE
JURISDICTION OF THE BANKRUPTCY COURT SINCE THE MAIN SUIT WAS INSTITUTED
IN THE STATE COURT PRIOR TO THE EFFECTIVE DATE OF CH. X, SEPTEMBER 22,
1938.  SEE SEC. 7.  BUT THE SHORT ANSWER IS THAT THE PETITION WAS
APPROVED AFTER THAT DATE AND THE PROVISIONS OF CH. X WERE THUS BROUGHT
INTO PLAY.  FN5  IT IS SUGGESTED THAT SINCE SEC. 23 OF THE ACT  FN6
WAS APPLICABLE TO REORGANIZATIONS UNDER SEC. 77B BUT INAPPLICABLE FN7
TO THOSE UNDER CH. X (SEC. 102), THERE WAS A GREATER LIMITATION ON THE
JURISDICTION OF THE BANKRUPTCY COURT OVER PLENARY SUITS AT THE TIME THE
MAIN SUIT WAS INSTITUTED THAN THERE WAS AFTER CH. X BECAME EFFECTIVE. 
FN8  FROM THAT IT IS ARGUED THAT SINCE CONGRESS LEFT THE ENFORCEMENT OF
SUCH CLAIMS TO THE STATE COURTS, IT PERMITTED THEM TO CONTROL ALL
INCIDENTS OF THE LITIGATION INCLUDING THE FIXING OF ATTORNEYS' LIENS. 
SEC. 23 DEALS WITH QUESTIONS OF THE JURISDICTION OF FEDERAL DISTRICT
COURTS, E.G., WHETHER IN SUITS BY TRUSTEES IN BANKRUPTCY AGAINST
ADVERSE CLAIMANTS THE JURISDICTION OF THE DISTRICT COURTS RESTS ON
CONSENT OF THE PARTIES REGARDLESS OF DIVERSITY OF CITIZENSHIP. 
SCHUMACHER V. BEELER, 293 U.S. 367.  THE FACT THAT THE SUITS AGAINST
THE FORMER OFFICERS AND DIRECTORS OF THE DEBTOR COULD HAVE BEEN BROUGHT
IN THE STATE COURTS ALONE DOES NOT ADVANCE THE SOLUTION OF THE PRESENT
PROBLEM.  A BANKRUPTCY TRUSTEE WHO BY CHOICE OR BY NECESSITY RESORTS TO
A STATE COURT FOR THE PROSECUTION OF A CLAIM IS OF COURSE BOUND BY THE
ADJUDICATION MADE IN THE STATE PROCEEDING.  WINCHESTER V. HEISKELL, 119
U.S. 450; FISCHER V. PAULINE OIL & GAS CO., 309 U.S. 294, 303.  THE
STATE COURT HAS FULL CONTROL OVER THE LITIGATION.  BUT EVEN AS AN
INCIDENT THERETO, IT MAY NOT TAKE ACTION WHICH INVOLVES THE PERFORMANCE
OF FUNCTIONS WHICH CONGRESS HAS ENTRUSTED TO THE BANKRUPTCY COURT.  SEE
EAU CLAIRE NATIONAL BANK V. JACKMAN, 204 U.S. 522, 537-538. 

THE SUGGESTION HAS BEEN MADE THAT NEW YORK COULD OPEN ITS COURTS TO
THE PROSECUTION OF SUCH SUITS AS THE TRUSTEES INSTITUTED ON CONDITION
THAT NEW YORK CONTROL THE LEGAL FEES INCIDENT TO THE LITIGATION; AND
THAT SO LONG AS NEW YORK DID NOT DISCRIMINATE AGAINST THOSE ASSERTING
RIGHTS UNDER THE FEDERAL ACT SUCH CONDITION WOULD BE VALID.  CF.
DOUGLAS V. NEW YORK, N.H. & H.R. CO., 279 U.S. 377.  IT DOES NOT
APPEAR, HOWEVER, THAT NEW YORK HAS FOLLOWED THAT COURSE.  THE FACT THAT
NEW YORK HAS ADOPTED MEASURES DESIGNED TO PROTECT ATTORNEYS PRACTICING
IN ITS COURTS DOES NOT DEMONSTRATE THAT NEW YORK HAS MADE ITS CONTROL
OVER THE FEES A CONDITION TO THE USE OF ITS TRIBUNALS.  THERE IS NO
SUCH INDICATION IN THE OPINION OF THE NEW YORK COURT OF APPEALS.  THUS
WE CANNOT SAY THAT NEW YORK HAS PROVIDED CONDITIONS FOR ENTRY INTO ITS
COURTS WHICH COLLIDE WITH A CONGRESSIONAL ENACTMENT.  WE CAN ONLY
ASSUME THEREFORE THAT THE CASE IS NO DIFFERENT IN PRINCIPLE FROM THE
ONE WHERE A STATE GRANTS TO CREDITORS ATTACHMENTS IN AID OF THE
COLLECTION OF THEIR CLAIMS.  THERE CAN BE NO DOUBT THAT SUCH LIENS
COULD BE NULLIFIED BY SUPERVENING BANKRUPTCY WHETHER THE CREDITOR BE
LAWYER OR MERCHANT. 

BUT IF IT IS ASSUMED THAT NEW YORK MIGHT HAVE REFUSED TO ENTERTAIN
SUCH SUITS AS WERE BROUGHT AGAINST THE OLD MANAGEMENT (CF. MONDOU V.
NEW YORK, N.H. & H.R. CO., 223 U.S. 1, 56-59), IT DOES NOT FOLLOW THAT
IT COULD TAKE JURISDICTION OF THEM BUT FAIL TO APPLY ANY FEDERAL LAW IN
WHICH THOSE CLAIMS MIGHT BE ROOTED.  GARRETT V. MOORE-MCCORMACK CO.,
317 U.S. 239.  WHERE CONGRESS HAS PRESCRIBED THE RULE TO GOVERN THE
COMPENSATION OF THOSE EMPLOYED BY THE BANKRUPTCY COURT, THOSE CLAIMS
ARE NO LESS DEPENDENT ON THE FEDERAL RULE BECAUSE THEY ARE ASSERTED AS
AN INCIDENT TO ANOTHER SUIT.  IF THE STATE COURT COULD DISREGARD THE
FEDERAL RULE IN THAT SITUATION, THEN ANY OF THE DUTIES OF
ADMINISTRATION WHICH CONGRESS HAS IMPOSED ON THE BANKRUPTCY COURT COULD
BE ABSORBED BY THE STATE TRIBUNAL.  EAU CLAIRE NATIONAL BANK V.
JACKMAN, SUPRA.  CONGRESS HAS FIXED THE FEES WHICH VARIOUS
REPRESENTATIVES OR OFFICERS OF THE BANKRUPTCY COURT MAY RECEIVE FOR
THEIR SERVICES.  SECS. 40, 48.  AMONG THESE ARE THE BANKRUPTCY
TRUSTEES.  SEC. 48(C).  AS IN THE PRESENT CASE THOSE TRUSTEES MAY AT
TIMES CHOOSE TO ACT AS THEIR OWN ATTORNEYS.  BUT IT WOULD BE NOVEL
DOCTRINE INDEED TO HOLD THAT STATE COURTS COULD INCREASE ANY MAXIMUM
ALLOWANCE WHICH CONGRESS MIGHT AUTHORIZE BANKRUPTCY TRUSTEES TO RECEIVE
FROM THE ESTATE MERELY BECAUSE THE TRUSTEES RENDERED SOME OF THEIR
SERVICES IN STATE TRIBUNALS.  YET IF CONGRESS CAN PROTECT BANKRUPTCY
ESTATES BY ITSELF PRESCRIBING MAXIMUM FEES FOR THOSE REPRESENTING OR
RENDERING SERVICE TO THE ESTATE, IT IS NOT APPARENT WHY IT MAY NOT
REACH THE SAME RESULT BY DELEGATING THAT AUTHORITY TO THE BANKRUPTCY
COURT.  WHATEVER DOUBTS MAY HAVE ONCE EXISTED AS TO THE FUNCTIONS OF A
REORGANIZATION COURT, IT IS CLEAR UNDER THIS RECENT BANKRUPTCY
LEGISLATION THAT THE APPROVAL OF ALL FEES AS PART OF THE PLAN HAS BEEN
ENTRUSTED TO THE BANKRUPTCY COURT EXCLUSIVELY.  THE CASE IS THEREFORE
CONTROLLED BY THE PRINCIPLE OF HINES V. LOWREY, 305 U.S. 85.  IN THAT
CASE WE HELD THAT WHERE AN ACT OF CONGRESS LIMITED TO TEN DOLLARS THE
FEES FOR SERVICES IN CONNECTION WITH VETERANS' WAR RISK INSURANCE
CLAIMS, THE NEW YORK COURT COULD NOT AWARD A GREATER AMOUNT TO AN
ATTORNEY REPRESENTING A GUARDIAN OF AN INSANE VETERAN EVEN WHERE THE
GUARDIAN WAS APPOINTED BY THE NEW YORK COURT.  WE REVERSED A JUDGMENT
OF THE NEW YORK COURT GRANTING THE ATTORNEY $1,500 FOR HIS SERVICES. 
THE PURPOSE OF CONGRESS TO PLACE THE CONTROL OF PETITIONERS' FEES IN
THE BANKRUPTCY COURT IS NO LESS CLEAR THAN ITS PURPOSE TO LIMIT THE
AMOUNT OF FEES IN THE HINES CASE.  IN EACH THE FEDERAL RULE IS THE
SUPREME LAW OF THE LAND. 

WE ONLY HOLD THAT THE BANKRUPTCY COURT HAS EXCLUSIVE AUTHORITY UNDER
CH. X TO FIX THE AMOUNT OF ALLOWANCES FOR FEES.  WHETHER THE AMOUNT SO
FIXED COULD BE SECURED BY A LIEN CREATED BY LOCAL LAW RAISES A QUESTION
WHICH WE DO NOT REACH.  AFFIRMED. 

FN1  RESPONDENTS SOUGHT AN ORDER FROM THE BANKRUPTCY COURT DIRECTING
PETITIONERS TO TURN OVER THEIR PAPERS AND MEMORANDA.  THAT MOTION WAS
RESISTED BY PETITIONERS WHO CLAIMED THAT THE NEW YORK COURT HAD
EXCLUSIVE JURISDICTION.  THEREUPON A STIPULATION WAS ENTERED INTO WITH
THE APPROVAL OF THE BANKRUPTCY COURT WHEREBY RESPONDENTS WITHDREW THEIR
MOTION AND PETITIONERS AGREED TO INSTITUTE A SUIT IN THE STATE COURT
FOR FIXATION OF THEIR LIENS, IF ANY.  THE PARTIES RESERVED THEIR RIGHT
TO QUESTION THE JURISDICTION OF THE STATE COURT OR BANKRUPTCY COURT
OVER THE MATTER. 

FN2  "FROM THE COMMENCEMENT OF AN ACTION, SPECIAL OR OTHER PROCEEDING
IN ANY COURT OR BEFORE ANY STATE OR FEDERAL DEPARTMENT, EXCEPT A
DEPARTMENT OF LABOR, OR THE SERVICE OF AN ANSWER CONTAINING A
COUNTERCLAIM, THE ATTORNEY WHO APPEARS FOR A PARTY HAS A LIEN UPON HIS
CLIENT'S CAUSE OF ACTION, CLAIM OR COUNTERCLAIM, WHICH ATTACHES TO A
VERDICT, REPORT, DETERMINATION, DECISION, JUDGMENT OR FINAL ORDER IN
HIS CLIENT'S FAVOR, AND THE PROCEEDS THEREOF IN WHATEVER HANDS THEY MAY
COME; AND THE LIEN CANNOT BE AFFECTED BY ANY SETTLEMENT BETWEEN THE
PARTIES BEFORE OR AFTER JUDGMENT, FINAL ORDER OR DETERMINATION.  THE
COURT UPON THE PETITION OF THE CLIENT OR ATTORNEY MAY DETERMINE AND
ENFORCE THE LIEN." 

FN3  SEE CONTINENTAL BANK V. CHICAGO, R.I. & P. RY. CO., 294 U.S.
648, 685; RECONSTRUCTION FINANCE CORP. V. BANKERS TRUST CO., 318 U.S.
163. 

FN4  THE SUBMISSION OF THE MATTER TO THE STATE COURT WITH OBJECTIONS
TO ITS JURISDICTION WAS A PROCEDURE WHICH GAVE THAT "DUE REGARD FOR
COMITY" SUGGESTED BY THE COURT IN GROSS V. IRVING TRUST CO., 289 U.S.
342, 345. 

FN5  EVEN IF THE PETITION HAD BEEN APPROVED PRIOR TO THE EFFECTIVE
DATE OF CH. X ITS PROVISIONS WOULD HAVE APPLIED IN THEIR ENTIRETY TO
THE PROCEEDINGS PROVIDED SUCH APPROVAL WAS WITHIN THREE MONTHS PRIOR TO
THAT DATE.  SEC. 276(C)(1). 

FN6  SEC. 23 PRESENTLY PROVIDES:  "A.  THE UNITED STATES DISTRICT
COURTS SHALL HAVE JURISDICTION OF ALL CONTROVERSIES AT LAW AND IN
EQUITY, AS DISTINGUISHED FROM PROCEEDINGS UNDER THIS ACT, BETWEEN
RECEIVERS AND TRUSTEES AS SUCH AND ADVERSE CLAIMANTS, CONCERNING THE
PROPERTY ACQUIRED OR CLAIMED BY THE RECEIVERS OR TRUSTEES, IN THE SAME
MANNER AND TO THE SAME EXTENT AS THOUGH SUCH PROCEEDINGS HAD NOT BEEN
INSTITUTED AND SUCH CONTROVERSIES HAD BEEN BETWEEN THE BANKRUPTS AND
SUCH ADVERSE CLAIMANTS.  B. SUITS BY THE RECEIVER AND THE TRUSTEE SHALL
BE BROUGHT OR PROSECUTED ONLY IN THE COURTS WHERE THE BANKRUPT MIGHT
HAVE BROUGHT OR PROSECUTED THEM IF PROCEEDINGS UNDER THIS ACT HAD NOT
BEEN INSTITUTED, UNLESS BY CONSENT OF THE DEFENDANT, EXCEPT AS PROVIDED
IN SECTIONS 60, 67, AND 70 OF THIS ACT." 

FN7  SEE WEINSTEIN, THE BANKRUPTCY LAW OF 1938(1938), PP. 63-64; 2
COLLIER ON BANKRUPTCY (14TH ED.), PP. 435-436. 

FN8  SEE IN RE STANDARD GAS & ELECTRIC CO., 119 F.2D 658. 

MR. JUSTICE ROBERTS CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

1.  SINCE 1789, RIGHTS DERIVED FROM FEDERAL LAW COULD BE ENFORCED IN
STATE COURTS UNLESS CONGRESS CONFINED THEIR ENFORCEMENT TO THE FEDERAL
COURTS.  THIS HAS BEEN SO PRECISELY FOR THE SAME REASON THAT RIGHTS
CREATED BY THE BRITISH PARLIAMENT OR BY THE LEGISLATURE OF VERMONT
COULD BE ENFORCED IN THE NEW YORK COURTS.  NEITHER CONGRESS NOR THE
BRITISH PARLIAMENT NOR THE VERMONT LEGISLATURE HAS POWER TO CONFER
JURISDICTION UPON THE NEW YORK COURTS.  BUT THE JURISDICTION CONFERRED
UPON THEM BY THE ONLY AUTHORITY THAT HAS POWER TO CREATE THEM AND TO
CONFER JURISDICTION UPON THEM - NAMELY THE LAW-MAKING POWER OF THE
STATE OF NEW YORK - ENABLES THEM TO ENFORCE RIGHTS NO MATTER WHAT THE
LEGISLATIVE SOURCE OF THE RIGHT MAY BE.  SEE, FOR INSTANCE, UNITED
STATES V. JONES, 109 U.S. 513, 520. 

2.  IN SHORT, SUBJECT TO ONLY ONE LIMITATION, EACH STATE OF THE UNION
MAY ESTABLISH ITS OWN JUDICATURE, DISTRIBUTE JUDICIAL POWER AMONG THE
COURTS OF ITS CHOICE, DEFINE THE CONDITIONS FOR THE EXERCISE OF THEIR
JURISDICTION AND THE MODES OF THEIR PROCEEDING, TO THE SAME EXTENT AS
CONGRESS IS EMPOWERED TO ESTABLISH A SYSTEM OF INFERIOR FEDERAL COURTS
WITHIN THE LIMITS OF FEDERAL JUDICIAL POWER, AND THE STATES ARE AS FREE
FROM CONTROL BY CONGRESS IN ESTABLISHING STATE SYSTEMS FOR LITIGATION
AS IS CONGRESS FREE FROM STATE CONTROL IN ESTABLISHING A FEDERAL SYSTEM
FOR LITIGATION.  THE ONLY LIMITATION UPON THE FREEDOM OF A STATE TO
DEFINE THE JURISDICTION OF ITS OWN COURTS IS THAT IMPLIED BY ARTICLE
IV, SEC. 2 OF THE CONSTITUTION, WHEREBY "THE CITIZENS OF EACH STATE
SHALL BE ENTITLED TO ALL PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE
SEVERAL STATES."  THE CONSTITUTION DOES NOT REQUIRE NEW YORK TO GIVE
JURISDICTION TO ITS COURTS AGAINST ITS WILL.  BUT "IF THE STATE DOES
PROVIDE A COURT TO WHICH ITS OWN CITIZENS MAY RESORT IN A CERTAIN CLASS
OF CASES, IT MAY BE THAT CITIZENS OF OTHER STATES OF THE UNION ALSO
WOULD HAVE A RIGHT TO RESORT TO IT IN CASES OF THE SAME CLASS."  ANGLO
AMERICAN PROVISION CO. V. DAVIS PROVISION CO., NO. 1, 191 U.S. 373,
374.  THE MATTER WAS WELL PUT BY JUDGE CUTHBERT POUND IN CONNECTION
WITH LITIGATION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT IN THE STATE
COURTS:  "THE STATE COURTS MUST MAKE NO HOSTILE DISCRIMINATION AGAINST
LITIGANTS WHO COME WITHIN THE ACT IN QUESTION; ...  THEY MUST TREAT
LITIGANTS UNDER THE FEDERAL ACT AS OTHER LITIGANTS ARE TREATED; ...
THEY ARE TO ACT IN CONFORMITY WITH THEIR GENERAL PRINCIPLES OF PRACTICE
AND PROCEDURE AND ARE NOT TO DENY JURISDICTION MERELY BECAUSE THE RIGHT
OF ACTION ARISES UNDER THE ACT OF CONGRESS."  MURNAN V. WABASH RY. CO.,
246 N.Y. 244, 247, 158 N.E. 508, 509. 

3.  THE UPSHOT OF THE MATTER IS THAT "RIGHTS, WHETHER LEGAL OR
EQUITABLE, ACQUIRED UNDER THE LAWS OF THE UNITED STATES, MAY BE
PROSECUTED IN THE UNITED STATES COURTS, OR IN THE STATE COURTS,
COMPETENT TO DECIDE RIGHTS OF THE LIKE CHARACTER AND CLASS; SUBJECT,
HOWEVER, TO THIS QUALIFICATION, THAT WHERE A RIGHT ARISES UNDER A LAW
OF THE UNITED STATES, CONGRESS MAY, IF IT SEE FIT, GIVE TO THE FEDERAL
COURTS EXCLUSIVE JURISDICTION."  CLAFLIN V. HOUSEMAN, 93 U.S. 130, 136
137.  WHETHER A STATE COURT IS "COMPETENT TO DECIDE RIGHTS OF THE LIKE
CHARACTER AND CLASS," WHETHER THE PARTICULAR LITIGATION IS TO BE TRIED
BY JURY AND, IF SO, HOW THE JURY IS TO BE COMPOSED, WHETHER IT IS TO BE
A JURY OF TWELVE OR LESS, WHETHER DECISION IS TO BE BY UNANIMITY OR
MAJORITY, WHETHER SECURITY IS TO BE FURNISHED AND OF WHAT NATURE - IN
SUM, WHETHER A STATE COURT CAN TAKE JURISDICTION AND WHAT THE INCIDENTS
OF THE LITIGATION SHOULD BE - ALL THESE ARE MATTERS WHOLLY WITHIN THE
CONTROL OF THE STATE CREATING THE COURT AND WITHOUT THE POWER OF
CONGRESS.  SEE, FOR INSTANCE, MINNEAPOLIS & ST. LOUIS R. CO. V.
BOMBOLIS, 241 U.S. 211.  AS IT WAS PUT BY MR. JUSTICE STORY IN MARTIN
V. HUNTER'S LESSEE, 1 WHEAT.  304, 330-331, "CONGRESS CANNOT VEST ANY
PORTION OF THE JUDICIAL POWER OF THE UNITED STATES, EXCEPT IN COURTS
ORDAINED AND ESTABLISHED BY ITSELF."  CONGRESS MAY AVAIL ITSELF OF
STATE COURTS FOR THE ENFORCEMENT OF FEDERAL RIGHTS, BUT IT MUST TAKE
THE STATE COURTS AS IT FINDS THEM, SUBJECT TO ALL THE CONDITIONS FOR
LITIGATION IN THE STATE COURTS THAT THE STATE HAS DECREED FOR EVERY
OTHER LITIGANT WHO SEEKS ACCESS TO ITS COURTS. 

4.  CONGRESS FROM THE BEGINNING HAS ALLOWED FEDERALLY CREATED RIGHTS
TO BE ENFORCED IN STATE COURTS NOT ONLY BY THE GENERAL IMPLICATIONS OF
OUR LEGAL SYSTEM BUT ALSO BY EXPLICIT AUTHORIZATION.  THE NATURE OF THE
OBLIGATION OF THE STATE COURT UNDER SUCH LEGISLATION HAS BEEN MOST
LITIGATED IN CONNECTION WITH THE FEDERAL EMPLOYERS' LIABILITY ACT, AND
AFTER THOROUGH CANVASS THE MATTER WAS THUS SUMMARIZED BY MR. JUSTICE
HOLMES IN DOUGLAS V. NEW YORK, N.H. & H.R. CO., 279 U.S. 377, 387-388,
"AS TO THE GRANT OF JURISDICTION IN THE EMPLOYERS' LIABILITY ACT, THAT
STATUTE DOES NOT PURPORT TO REQUIRE STATE COURTS TO ENTERTAIN SUITS
ARISING UNDER IT, BUT ONLY TO EMPOWER THEM TO DO SO, SO FAR AS THE
AUTHORITY OF THE UNITED STATES IS CONCERNED.  IT MAY VERY WELL BE THAT
IF THE SUPREME COURT OF NEW YORK WERE GIVEN NO DISCRETION, BEING
OTHERWISE COMPETENT, IT WOULD BE SUBJECT TO A DUTY.  BUT THERE IS
NOTHING IN THE ACT OF CONGRESS THAT PURPORTS TO FORCE A DUTY UPON SUCH
COURTS AS AGAINST AN OTHERWISE VALID EXCUSE." 

5.  THE SIMPLE FACT IS THAT FROM 1789 TO THIS DAY NO ACT OF CONGRESS
HAS ATTEMPTED TO FORCE UPON STATE COURTS THE DUTY OF ENFORCING ANY
RIGHT CREATED BY FEDERAL LAW ON TERMS OTHER THAN THOSE ON WHICH LIKE
LITIGATION INVOLVING RIGHTS OTHER THAN FEDERAL RIGHTS IS REQUIRED TO BE
CONDUCTED IN A STATE COURT.  IT CERTAINLY HAS NOT DONE SO BY THE
BANKRUPTCY ACT NOR CAN ANY IMPLICATION TO THAT EFFECT BE DERIVED FROM
THE SUPREMACY CLAUSE OF THE CONSTITUTION.  FOR THE SUPREMACY CLAUSE
DOES NOT GIVE GREATER SUPREMACY TO THE BANKRUPTCY ACT OVER THE FREE
SCOPE OF THE STATES TO DETERMINE WHAT SHALL BE LITIGATED IN THEIR
COURTS AND UNDER WHAT CONDITIONS, THAN IT GIVES WITH REFERENCE TO
RIGHTS DIRECTLY SECURED BY THE CONSTITUTION, SUCH AS THOSE GUARANTEED
BY THE FULL FAITH AND CREDIT CLAUSE, SEE ANGLO-AMERICAN PROVISION CO.
V. DAVIS PROVISION CO., NO. 1, SUPRA, OR WITH REFERENCE TO THE POWER
EXERCISED BY CONGRESS UNDER THE COMMERCE CLAUSE, SEE MINNEAPOLIS & ST.
LOUIS R. CO. V. BOMBOLIS, SUPRA. 

6.  THE EXERCISE OF A RIGHT WHICH CONGRESS HAS NOT SOUGHT TO EXERCISE
SINCE 1789 AND EVIDENTLY HAS NOT EXERCISED BECAUSE OF THE
CONSTITUTIONAL RELATION OF FEDERAL RIGHTS TO THEIR ENFORCEMENT IN STATE
COURTS SHOULD NOT BE READ INTO CHAPTER X. C. 575, 52 STAT. 883, 11
U.S.C. SEC. 501 ET SEQ. WE SHOULD HESITATE LONG BEFORE WE FIND THAT
CONGRESS HAS ASSUMED THE POWER TO RENDER UNCONSTITUTIONAL STATE
LEGISLATION BY WHICH ACCESS TO A STATE COURT WOULD BE ALLOWED TO A
LITIGANT ON NO DIFFERENT TERMS THAN THOSE WHICH THE STATE HAS
PRESCRIBED FOR ITS OWN LITIGANTS TO WHOM ACCESS TO ITS COURTS IS GIVEN
IN LIKE CASES.  AND CERTAINLY SUCH A WHOLLY NOVEL DOCTRINE OF
CONSTITUTIONAL LAW SHOULD NOT BE RESORTED TO GRATUITOUSLY WHEN THE CASE
BEFORE US CAN BE DISPOSED OF ON THE CONCLUSIVE GROUND THAT THE
LITIGATION CONDUCTED IN THE NEW YORK COURTS WAS CONDUCTED UNDER AN
ARRANGEMENT CONSONANT WITH NEW YORK LAW, NAMELY THAT THE ATTORNEYS'
FEES WERE TO BE FIXED NOT BY THE NEW YORK COURTS BUT BY THE BANKRUTCY
COURT.  SEE MATTER OF HEINSHEIMER, 214 N.Y. 361, 108 N.E. 636. 
RECOGNITION THAT SUCH IS NEW YORK LAW AND THAT THEREFORE THE REMISSION
OF FEE-FIXING IN THIS CASE TO THE BANKRUPTCY COURT IS NOT IN CONFLICT
WITH THAT LAW APPEARS FROM THE OPINION BELOW:  "AS A MATTER OF FACT THE
RETAINER OF THESE ATTORNEYS WAS SUBJECT TO THE CONDITION THAT THE
AMOUNT OF ANY FEES WOULD BE FIXED BY THE UNITED STATES DISTRICT
COURT."  290 N.Y. 468, 475.  THE DISPOSITION OF THIS CASE REQUIRES
NEITHER THE ASSUMPTION MADE IN THE COURT'S OPINION RELATING TO NEW YORK
LAW, NOR THE APPLICATION GIVEN TO CHAPTER X, BOTH OF WHICH MUST BE
INESCAPABLE BEFORE WE EVEN REACH THE CONSTITUTIONAL ISSUE NEEDLESSLY
PROJECTED. 

7.  HINES V. LOWREY, 305 U.S. 85, DOES NOT TOUCH THIS PROBLEM.  THAT
CASE INVOLVED SEC. 500 OF THE WORLD WAR VETERANS' ACT WHICH LIMITED TO
$10 THE FEE THAT MAY BE ALLOWED FOR SERVICES IN PRESSING A CLAIM BEFORE
THE UNITED STATES VETERANS' BUREAU AND MADE IT A CRIME TO CHARGE MORE. 
A NEW YORK COURT GRANTED A FEE OF $1,500 FOR SUCH SERVICES BECAUSE THE
ESTATE OF THE VETERAN WAS BEING ADMINISTERED BY A COMMITTEE APPOINTED
BY THE STATE COURT WHICH HAD APPOINTED AN ATTORNEY TO PRESS THE CLAIM
BEFORE THE VETERANS' BUREAU.  OF COURSE THIS COURT HELD THAT A STATE
COURT CANNOT SANCTION THAT WHICH CONGRESS HAS OUTLAWED AS A CRIME.  THE
NEW YORK COURT IN EFFECT DENIED THE AUTHORITY OF FEDERAL LAW TO FIX
FEES FOR LITIGATION BEFORE A FEDERAL TRIBUNAL - A VERY DIFFERENT THING
FROM DENYING TO THE STATE OF NEW YORK THE AUTHORITY TO FIX FEES FOR
LITIGATION IN ITS OWN COURTS.  THE LIMITATIONS IN THE HINES CASE FIXED
BY CONGRESS DID NOT RUN COUNTER TO ANY REQUIREMENT OF NEW YORK LAW
GOVERNING THE CONDUCT OF SUITS IN ITS COURTS.  THAT CASE WAS NOT
CONCERNED WITH SUCH A SITUATION, AND THEREFORE COULD NOT POSSIBLY HOLD
THAT, IF NEW YORK HAD A POLICY FOR LITIGATION IN ITS COURTS CONTRARY TO
THAT EXPRESSED BY CONGRESSIONAL ENACTMENT, A FEDERAL RIGHT COULD BE
PURSUED IN DISREGARD OF THE CONDITIONS FOR ENTRY INTO NEW YORK COURTS
APPLICABLE TO ALL OTHER LITIGANTS.  CONGRESS HAS NEVER SAID THAT IT CAN
SUBVERT THE DECLARED POLICY OF A STATE AS TO THE MANNER IN WHICH, OR
THE CONDITIONS UNDER WHICH, LITIGATION IN STATE COURTS SHOULD BE
CONDUCTED. THE FEDERAL LAW IN ANY FIELD WITHIN WHICH CONGRESS IS
EMPOWERED TO LEGISLATE IS THE SUPREME LAW OF THE LAND IN THE SENSE THAT
IT MAY SUPPLANT STATE LEGISLATION IN THAT FIELD, BUT NOT IN THE SENSE
THAT IT MAY SUPPLANT THE EXISTING RULES OF LITIGATION IN STATE COURTS. 
CONGRESS HAS FULL POWER TO PROVIDE ITS OWN COURTS FOR LITIGATING
FEDERAL RIGHTS.  THE STATE COURTS BELONG TO THE STATES.  THEY ARE NOT
SUBJECT TO THE CONTROL OF CONGRESS THOUGH OF COURSE STATE LAW MAY IN
WORDS OR BY IMPLICATION MAKE THE FEDERAL RULE FOR CONDUCTING LITIGATION
THE RULE THAT SHOULD GOVERN SUITS TO ENFORCE FEDERAL RIGHTS IN THE
STATE COURTS.  SURELY IT CANNOT BE THAT SHOULD NEW YORK DECIDE TO
REGULATE THE PUBLIC PROFESSION OF THE LAW BY PUTTING THE DETERMINATION
OF ALL ATTORNEYS' FEES IN CHARGE OF ITS COURTS, CONGRESS COULD PROVIDE
THAT ACTIONS THEREAFTER BROUGHT IN NEW YORK COURTS IN THE ENFORCEMENT
OF FEDERAL RIGHTS SHALL NOT BE SUBJECT TO NEW YORK'S FEE SYSTEM.  I
REPEAT, HINES V. LOWREY, SUPRA, GIVES NO SUPPORT WHATEVER TO A CLAIM
WHICH WAS NOT INVOLVED IN THAT CASE, WHICH IT DID NOT CONSIDER, AND
WHICH RUNS COUNTER TO THE WHOLE COURSE OF FEDERAL JUDICIARY LEGISLATION
AND FEDERAL ADJUDICATION. 

WE OUGHT NOT TO GO OUT OF OUR WAY TO EMBARRASS CONSIDERATION OF SUCH
DELICATE QUESTIONS IN THE WORKING OF OUR FEDERAL SYSTEM WHENEVER IN THE
FUTURE THEY MAY CALL FOR DECISION BY THIS COURT. 

MR. JUSTICE JACKSON JOINS IN THIS OPINION. 
..END :























EASTERN-CENTRAL ASSN. V. U.S., 321 U.S. 194 


NO. 105.  ARGUED DECEMBER 15, 16, 1943.  - DECIDED FEBRUARY 7, 1944.  -
48 F.SUPP.  432, REVERSED. 


IN ORDER TO COMPETE WITH RAILROADS IN THE TRANSPORTATION OF
HARDSURFACE FLOOR-COVERING, MOTOR CARRIERS PROPOSED TO ESTABLISH RATES
47.5 PER CENT OF FIRST CLASS, MINIMUM 20,000 POUNDS (TRUCKLOAD), AND 45
PER CENT OF FIRST CLASS, MINIMUM 30,000 POUNDS (CARLOAD).  THE
INTERSTATE COMMERCE COMMISSION REJECTED THE PROPOSED RATES AS UNJUST
AND UNREASONABLE, AND UNJUSTLY DISCRIMINATORY BETWEEN SHIPPERS, SO FAR
AS SUBJECT TO A MINIMUM OF 30,000 POUNDS.  HELD THAT, BECAUSE OF THE
INADEQUACY OF THE RECORD, THIS COURT IS UNABLE TO DETERMINE WHETHER THE
DECISION OF THE COMMISSION CONFORMS TO LAW; AND THE DECREE OF THE
DISTRICT COURT REFUSING TO SET ASIDE THE COMMISSION'S ORDER MUST BE
REVERSED.  P. 209. 

EASTERN-CENTRAL MOTOR CARRIERS ASSOCIATION ET AL. V. UNITED STATES ET
AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, REFUSING TO
SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, 34 M.C.C.
641. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE MOTOR CARRIER ASSOCIATIONS WHO SEEK TO PUT INTO EFFECT
PROPOSED RATE SCHEDULES IN ORDER TO MEET RAIL COMPETITION.  THE
SCHEDULES COVER TRANSPORTATION OF HARD SURFACE FLOOR COVERING, E.G.,
LINOLEUM, FROM POINTS IN NEW ENGLAND AND MIDDLE ATLANTIC STATES TO
VARIOUS DESTINATIONS IN MIDDLE WESTERN STATES.  THE INTERSTATE COMMERCE
COMMISSION, THREE COMMISSIONERS DISSENTING, REJECTED THE SCHEDULES.  34
M.C.C. 641.  IN SO DOING IT UPHELD THE PREVIOUS CONCLUSION OF ITS
DIVISION 3.  31 M.C.C. 193.  A THREE-JUDGE DISTRICT COURT (28 U.S.C.
SEC. 47) SUSTAINED THE COMMISSION'S DECISION.  48 F.SUPP.  432.  THE
APPEAL, UNDER 28 U.S.C. SECS. 47A, 345, BRINGS THE DECREE HERE FOR
REVIEW.  EASTERN-CENTRAL IS THE PRINCIPAL APPELLANT.  WE THINK THE
JUDGMENT MUST BE REVERSED. 

WHEN THE SCHEDULES WERE FILED, THE MOTOR CARRIERS' RATES ON CARPETING
GENERALLY WERE BASED ON MINIMUM WEIGHTS VARYING BETWEEN 16,000 AND
20,000 POUNDS, ROUGHLY APPROXIMATING A TRUCKLOAD.  BELOW THIS WEIGHT
THE RATE WAS EQUIVALENT TO 70 PER CENT OF FIRST CLASS.  ABOVE IT THE
RATE VARIED SOMEWHAT, IN THE NEIGHBORHOOD OF 45 TO 50 PER CENT OF FIRST
CLASS.  CORRESPONDING RAIL RATES THEN WERE 70 PER CENT OF FIRST CLASS
FOR SHIPMENTS OF LESS THAN 30,000 POUNDS (LESS THAN CARLOAD LOTS) AND
45 PER CENT FOR LARGER SHIPMENTS.  THUS, THE DIFFERENTIAL ACCORDING TO
WEIGHT WAS GEARED IN THE ONE CASE TO RAIL CARLOAD CAPACITY AND IN THE
OTHER TO TRUCKLOAD CAPACITY.  FN1 

CONCEIVING THAT THESE STRUCTURES GAVE THE RAILROADS AN UNDUE
COMPETITIVE ADVANTAGE ON LARGER SHIPMENTS, APPELLANTS PROPOSED SPECIFIC
RATES DESIGNED TO ENABLE THEM TO COMPETE WITH THE RAILROADS FOR SUCH
SHIPMENTS.  THEY SOUGHT TO UTILIZE A NEW MINIMUM WEIGHT.  THE RATES
TENDERED WERE APPROXIMATELY THE EQUIVALENT OF 70 PER CENT OF FIRST
CLASS FOR SHIPMENTS OF LESS THAN 20,000 POUNDS, 47.5 PER CENT FOR
20,000 TO 30,000 POUNDS, AND 45 PER CENT FOR 30,000 POUNDS OR MORE. 
THE SCHEDULES THEREFORE SUBSTANTIALLY PUT RAIL AND MOTOR RATES ON THE
SAME PLANE FOR LESS THAN 20,000 AND MORE THAN 30,000 POUNDS; BUT PLACED
MOTOR RATES SUBSTANTIALLY LOWER THAN RAIL RATES FOR SHIPMENTS OF 20,000
TO 30,000 POUNDS. 

CERTAIN WESTERN RAIL CARRIERS PROTESTED.  THEREUPON THE PROPOSED
RATES WERE MADE THE SUBJECT OF INVESTIGATION AND SUSPENSION
PROCEEDINGS.  49 U.S.C. SEC. 316(D), (G), 49 STAT. 558-560, 54 STAT.
924.  HEARINGS WERE BEGUN BEFORE DIVISION 3.  WHILE THEY WERE PENDING
APPELLANTS AGREED TO MAKE APPLICABLE IN CONNECTION WITH THEIR PROPOSED
RATE, MINIMUM 30,000 POUNDS, A TARIFF PROVISION THAT SUCH SHIPMENTS
"MUST BE RECEIVED AT AND TRANSPORTED FROM THE POINT OF ORIGIN FROM ONE
SHIPPER IN ONE DAY AND ON ONE BILL OF LADING."  FN2  THE RAIL
PROTESTANTS THEREFORE PRESENTED NO EVIDENCE AND AFTER THE HEARING
WITHDREW THEIR PROTEST.  WHILE THE PROCEEDINGS WERE PENDING THE RAIL
CARRIERS ALSO REDUCED THEIR RATES MINIMUM 30,000 POUNDS TO 42.5 PER
CENT OF FIRST CLASS. 

THE HEARINGS CONTINUED AND APPELLANTS PRESENTED EVIDENCE WHICH
SHOWED, AMONG OTHER THINGS, THAT ONE MOTOR CARRIER, BRADY TRANSFER AND
STORAGE COMPANY, OF FORT DODGE, IOWA, HAD RECEIVED "SINCE THESE RATES
WERE SUSPENDED, FOUR LOADS FROM THE WESTERN TRUNK LINE TERRITORY,
INSTEAD OF 398, AND THREE OF THOSE WE HAVEN'T COLLECTED THE CHARGES ON,
BECAUSE THE RATE WAS TOO HIGH  ...  "  IT APPEARED TOO THAT THE
EASTBOUND MOVEMENT CONSISTS LARGELY OF DAIRY PRODUCTS, REQUIRING
REFRIGERATION.  THE BULK OF THE WESTBOUND MOVEMENT IS FROZEN OR SALTED
FISH. 

DIVISION 3 MADE FINDINGS AND CONCLUSIONS FIRST THAT, BASED UPON THE
COSTS PROVEN AND COMPARISON WITH MOTOR CARRIERS' RATES ON NUMEROUS
COMMODITIES, THE PROPOSED RATES 45 PER CENT WERE "JUST AND REASONABLE
PROVIDED THE MINIMUM THAT IS APPLICABLE IN CONNECTION THEREWITH IS
REASONABLE."  ACCORDINGLY IT EXAMINED THE REASONS ADVANCED IN SUPPORT
OF THE PROPOSED MINIMUM OF 30,000 POUNDS. 

ON THIS, IT FOUND IN NO. M-1445  FN3  THAT LINOLEUM SHIPMENTS WHICH
MOVE BY RAIL TO THE OHIO POINTS GENERALLY ARE CONSIGNED TO WAREHOUSES
HAVING RAIL SIDINGS, WHILE LINOLEUM IS TENDERED TO THE APPELLANT MOTOR
CARRIERS IN QUANTITIES WEIGHING FROM 18,000 POUNDS UPWARD.  IT FOUND
ALSO, AND THE FINDING IS NOT QUESTIONED, THAT IT IS PHYSICALLY
IMPOSSIBLE TO LOAD 30,000 POUNDS OF LINOLEUM INTO A SINGLE UNIT OF
EQUIPMENT OPERATED BY APPELLANTS.  WHILE SOME OF IT CAN TRANSPORT
25,000 POUNDS, "THE NORMAL TRUCKLOAD OF LINOLEUM APPROXIMATES 22,000
POUNDS."  REJECTING APPELLANTS' CONTENTION BASED ON CARPETS AND
CARPETING FROM OFFICIAL TO SOUTHERN TERRITORY, 237 I.C.C. 651, THE
DIVISION STATED: 

"THE COMMISSION HAS FOUND REPEATEDLY THAT CARLOAD MINIMUM WEIGHTS
SHOULD BE ESTABLISHED BY RAIL CARRIERS WITH REFERENCE TO THE LOADING
CAPACITY OF THEIR FREIGHT CARS AND HAS CONDEMNED MINIMUM WEIGHTS IN
EXCESS OF THE LOADING POSSIBILITIES OF THE RAIL EQUIPMENT.  THE
RESPONDENTS (APPELLANTS HERE) HAVE NOT PRESENTED TO US A VALID REASON
FROM THE POINT OF VIEW OF ECONOMY IN TRANSPORTATION OR OTHERWISE, SUCH
AS WE HAVE FOUND TO EXIST IN CONNECTION WITH CERTAIN TRAINLOAD
MOVEMENTS,  FN4 WHY THEY SHOULD BE PERMITTED TO ESTABLISH A MINIMUM
WEIGHT GREATER THAN IS PHYSICALLY POSSIBLE TO LOAD IN THE MOTOR
EQUIPMENT USUALLY USED BY THEM, AND, IN OUR OPINION, NO SUCH REASON
EXISTS.  STRICTLY SPEAKING, THE PROPOSED MINIMUM WEIGHT OF 30,000
POUNDS IS NOT A TRUCKLOAD MINIMUM WEIGHT BUT RATHER IS A VOLUME MINIMUM
WEIGHT, WHICH NECESSITATES THE USE OF MORE THAN ONE UNIT OF EQUIPMENT
TO LOAD AND TRANSPORT THAT QUANTITY OF LINOLEUM.  WE ADOPT AS A POLICY,
THE CONDEMNATION AS UNREASONABLE OF A VOLUME MINIMUM WEIGHT, UNLESS IT
IS SHOWN CLEARLY THAT, AS A RESULT THEREOF, MOTOR CARRIERS CAN HANDLE
THE TRAFFIC AT THE VOLUME MINIMUM WEIGHT AT COSTS PER 100 POUNDS WHICH
ARE LESS THAN THE COSTS INCURRED AT A REASONABLE TRUCKLOAD MINIMUM
WEIGHT." 

THE DIVISION THEN FOUND THAT, ON THE RECORD, A REASONABLE TRUCKLOAD
MINIMUM ON LINOLEUM IS 20,000 POUNDS AND THERE WAS NO SHOWING OF
OPERATING ECONOMIES WHICH WOULD RESULT IF THE PROPOSED RATES WERE
RESTRICTED TO APPLY ONLY WHEN 30,000 POUNDS ARE TENDERED.  IT CONCLUDED
THAT THE PROPOSED SCHEDULES "ARE JUST AND REASONABLE AND OTHERWISE
LAWFUL EXCEPT TO THE EXTENT THAT THEY PROPOSE TO ESTABLISH A MINIMUM OF
30,000 POUNDS; THAT THE PROPOSED MINIMUM OF 30,000 POUNDS IS UNJUST AND
UNREASONABLE; AND THAT A MINIMUM OF 20,000 POUNDS WOULD BE JUST AND
REASONABLE."  THE PROPOSED SCHEDULES THEREFORE, TO THE EXTENT FOUND NOT
JUST AND REASONABLE, WERE ORDERED CANCELLED "WITHOUT PREJUDICE TO THE
ESTABLISHMENT  ...  OF TRUCKLOAD RATES ON LINOLEUM, MINIMUM 20,000
POUNDS, WHICH ARE NOT LESS THAN 45 PERCENT OF THE CORRESPONDING FIRST
CLASS RATES."  31 M.C.C. 193. 

THEREAFTER ORAL ARGUMENT WAS HAD BEFORE THE FULL COMMISSION.  AT THIS
STAGE THE NATIONAL INDUSTRIAL TRAFFIC LEAGUE INTERVENED AND SUPPORTED
THE DIVISION'S POSITION.  FN5  THE COMMISSION AFFIRMED THE DIVISION'S
FINDINGS "THAT THE PROPOSED RATES 45 AND 47.5 PERCENT OF FIRST CLASS
ARE NOT UNJUST OR UNREASONABLE EXCEPT TO THE EXTENT THAT THE PROPOSED
RATES, 45 PERCENT OF FIRST CLASS, ARE SUBJECT TO A MINIMUM OF 30,000
POUNDS."  BOTH RATES, IT SAID, "ARE WITHIN THE ZONE OF
REASONABLENESS."  BUT "THE PROPOSED RATES, MINIMUM 30,000 POUNDS, WOULD
GIVE AN UNJUST ADVANTAGE TO SHIPPERS OF 30,000-POUND LOTS AND BE
UNJUSTLY DISCRIMINATORY TO SHIPPERS OF 20,000-POUND LOTS."  SINCE AT
THAT TIME THE TARIFFS DISCLOSED APPELLANTS' RATES WERE EITHER 45 OR
47.5 PER CENT OF FIRST CLASS, MINIMUM 20,000 POUNDS, NO ORDER FOR THE
FUTURE WAS MADE.  THE COMMISSION, IN CONCLUDING ITS DISCUSSION, SAID: 

"WE ARE MINDFUL OF THE FACT THAT WE APPROVED CERTAIN (MOTOR CARRIER)
RATES SUBJECT TO A MINIMUM WEIGHT OF 30,000 POUNDS ON LINOLEUM IN
CARPETS AND CARPETING, OFFICIAL TO SOUTHERN TERRITORY, SUPRA.  HOWEVER,
OUR REPORT THEREIN EXPRESSES OUR DOUBT AS TO THE PROPRIETY OF
ESTABLISHING A MINIMUM OF 30,000 POUNDS IN CONNECTION WITH THE PROPOSED
COLUMN 45 BASIS BECAUSE IT WOULD REQUIRE MORE THAN ONE UNIT OF
EQUIPMENT TO TRANSPORT 30,000 POUNDS.  THAT REPORT WAS ISSUED OVER A
YEAR AGO AND NOW WE ARE CONVINCED THAT NOT ONLY WERE OUR DOUBTS AS
EXPRESSED THEREIN WELL FOUNDED, BUT THAT FOR THE FUTURE WE SHALL FOLLOW
THE POLICY ANNOUNCED IN THE PRIOR REPORT HEREIN WITH RESPECT TO MINIMUM
WEIGHTS IN EXCESS OF THE LOADING CAPACITY OF THE EQUIPMENT CUSTOMARILY
USED BY THE MOTOR CARRIERS." 

THE DISTRICT COURT, SUSTAINING THE COMMISSION'S FINDINGS AND
DECISION,  FN6  HELD THAT THE EXTENT TO WHICH COMPETITION SHOULD BE
RECOGNIZED IN ARRIVING AT JUST RATES IS A MATTER, WITHIN REASONABLE
LIMITS, FOR THE EXPERT JUDGMENT OF THE COMMISSION AND THAT, IN
EXERCISING ITS DISCRETION, THAT BODY HAD MET THE REQUIREMENTS OF SEC.
216(I) OF THE MOTOR CARRIER ACT.  FN7  49 U.S.C. SEC. 316(I). 

                  I. 

NOTWITHSTANDING THE APPARENT DIFFERENCE BETWEEN THE DIVISION AND THE
FULL COMMISSION, IN THE FORMER'S VIEW THAT THE PROPOSED RATE MINIMUM
30,000 POUNDS IS UNREASONABLE AND THE LATTER'S THAT IT IS BOTH
UNREASONABLE AND UNDULY DISCRIMINATORY, THE NET EFFECT IS THAT THE RATE
IS UNLAWFUL, AS A MATTER OF POLICY WHICH CONDEMNS ALL VOLUME MINIMUM
RATES UNLESS IT IS CLEARLY SHOWN THEY WILL OPERATE AT COSTS PER 100
POUNDS LESS THAN THE COSTS INCURRED AT REASONABLE LOADING CAPACITY
RATES. 

WHETHER THIS POLICY IS NOW INTENDED TO APPLY TO ALL FORMS OF
TRANSPORTATION, RAIL, MOTOR AND WATER, WITHOUT REGARD TO COMPETITIVE
CONDITIONS AFFECTING TWO OR MORE OF THEM, IS NOT CLEAR FROM THE
ABBREVIATED REPORTS MADE IN THIS CASE.  BUT THEIR CASTING OF THE MATTER
IN TERMS OF UNQUALIFIED POLICY, DEPENDENT ONLY UPON PROOF OF THE
REQUIRED REDUCTION IN OPERATING COSTS, GIVES BOTH APPEARANCE AND
SUBSTANCE TO THE VIEW THIS MAY BE TRUE, IF NOT WITH RESPECT TO ALL
CARRIERS, THEN CERTAINLY WITH REFERENCE TO MOTOR CARRIERS.  IF SO THE
EFFECT WILL BE, AS APPELLANTS URGE, NOT TO MAKE REDUCTION IN COSTS
MERELY ONE FACTOR, NOR INDEED EVEN THE MOST IMPORTANT FACTOR, IN
DETERMINING THE REASONABLENESS AND DISCRIMINATORY OR CONTRARY CHARACTER
OF RATES.  IT WILL BE RATHER TO MAKE REDUCTION IN COSTS THE EXCLUSIVE
CRITERION, ELIMINATING ALL OTHER CONSIDERATIONS, INCLUDING COMPETITIVE
CONDITIONS AMOUNTING TO NECESSITY.  THAT IS TRUE, NOTWITHSTANDING THE
COMMISSION'S REPORT, IMMEDIATELY PRIOR TO STATING ITS ADOPTION OF THE
POLICY ANNOUNCED BY THE DIVISION, GAVE EXPRESSION IN AN ABSTRACT WAY TO
A DIRECTLY CONTRARY PRINCIPLE, NAMELY, "THE EXTENT TO WHICH COMPETITION
BETWEEN CARRIERS MAY RENDER DISCRIMINATION AND PREJUDICE NOT UNLAWFUL
MUST BE DECIDED UPON THE FACTS IN EACH CASE."  FN8  THE LATTER
STATEMENT, TAKEN LITERALLY, SQUARELY CONTRADICTS THE POLICY UNLESS
INDEED THE STATEMENT WAS INTENDED TO QUALIFY IT IN SITUATIONS NOT
INDICATED OR CONTAINED AN IMPLICIT LIMITATION FROM CONTEXT THAT THE
ONLY "FACTS IN EACH CASE" WHICH WOULD BE MATERIAL ARE THOSE WHICH WOULD
PROVE A REDUCTION IN COSTS. 

THAT THE PURPOSE WAS NOT TO QUALIFY THE POLICY SEEMS APPARENT, NOT
ONLY FROM THE LATTER'S UNQUALIFIED FORMULATION AND ADOPTION AND FROM
THE FAILURE TO INTIMATE IN WHAT TYPES OF SITUATION THE QUALIFICATION
MIGHT OPERATE, BUT ALSO FROM TWO OTHER CONSIDERATIONS.  ONE IS THAT THE
STATEMENT WAS FOLLOWED IMMEDIATELY BY THE BROAD AND CONCLUSIVE
DECLARATION, IN GENERAL TERMS, WITHOUT SUPPORTING DATA OR REASONS,
EXCEPT AS SUPPLIED BY THE POLICY ITSELF, THAT "THE COMPETITION BETWEEN
RAIL AND MOTOR CARRIERS FOR LINOLEUM TRAFFIC DOES NOT CONSTITUTE SUCH A
DISSIMILARITY IN CIRCUMSTANCES AND CONDITIONS AS TO RENDER LEGAL THE
PROPOSED DISCRIMINATION."  THE STATEMENT WAS NOT LIMITED TO THE
PARTICULAR COMPETITIVE SITUATION.  IN TERMS IT APPLIED TO ALL BETWEEN
RAIL CARRIERS AND MOTOR CARRIERS.  IN SHORT, THE POLICY, AND THEREFORE
THE SINGLE FACTOR THAT THERE WAS NO EVIDENCE TO SHOW REDUCTION IN COST,
WAS THE SOLE CRITERION OF DECISION.  OTHER FACTS, INCLUDING COMPETITIVE
DISADVANTAGE, BECAME IRRELEVANT.  AND THE SIGNIFICANCE OF THE POLICY'S
APPLICATION BECOMES MORE MANIFEST BY VIRTUE OF THE FACT THAT THE CASE,
THOUGH PRESENTED AND DECIDED ON ITS OWN RECORD, WAS REGARDED AND
DETERMINED AS A TEST CASE.  FN9  FINALLY, THE COMMISSION'S REVIEW OF
ITS PREVIOUS DECISIONS, UPON WHICH APPELLANTS RELIED, SHOWS, WE THINK,
THAT ITS PURPOSE, IN THE CASE OF MOTOR CARRIERS AT ANY RATE, IS TO
ADHERE STRICTLY TO THE POLICY AND, IN THE MANNER MADE, MAY BE TAKEN TO
INDICATE THAT IT CONTEMPLATES NO DEPARTURE WHATEVER.  IF SO, THE EFFECT
OF THE DECISION IS NOT MERELY TO ADOPT "A POLICY OF ADMINISTRATION," AS
THE COMMISSION AND THE INTERVENORS BEFORE IT ASSERT; BUT IS RATHER TO
ADOPT, AS A RULE OF LAW, THE PRINCIPLE THAT ONLY UPON A SHOWING OF
REDUCTION IN OPERATING COSTS MAY A VOLUME MINIMUM RATE BE FOUND
REASONABLE AND NOT UNDULY DISCRIMINATORY. 
   II. 

THE COMMISSION CONSIDERED CHIEFLY PREVIOUS DECISIONS IN CARPETS AND
CARPETING FROM OFFICIAL TO SOUTHERN TERRITORY, SUPRA; MOLASSES FROM NEW
ORLEANS, LA., TO PEORIA AND PEKIN, ILL., 235 I.C.C. 485; AND PETROLEUM
RAIL SHIPPERS' ASSN. V. ALTON AND SOUTHERN R., 243 I.C.C. 589.  IN THE
MOLASSES CASE, NOTWITHSTANDING THE COMMISSION'S PREVIOUS REFUSAL TO
AUTHORIZE RAIL VOLUME RATES FOR MORE THAN CARLOAD LOTS AT LESS THAN
CARLOAD RATES, IT APPROVED A MULTIPLE CAR RATE, MINIMUM 1,800 TONS, ON
MOLASSES WHICH WAS LOWER THAN THE CARLOAD RATE.  THE EFFECT WAS TO
AUTHORIZE A LOWER RATE TO A NUMBER OF CARLOADS TENDERED AS A SINGLE
SHIPMENT.  THE DEPARTURE WAS MADE TO ENABLE THE RAIL CARRIERS TO MEET
WATER COMPETITION.  HOWEVER, THERE WAS A SHOWING THAT IN THE
CIRCUMSTANCES A MATERIAL SAVING IN COSTS PER 100 POUNDS WOULD BE MADE
IN TRANSPORTING SUCH MULTIPLE-CAR SHIPMENTS.  IN THE PETROLEUM SHIPPERS
CASE THE COMMISSION CONSIDERED AUTHORIZING MULTIPLE-CAR RATES ON
PETROLEUM, BUT DECLINED TO DO SO UPON FINDING THAT THE RECORD DID NOT
ESTABLISH EXISTENCE OF A SUBSTANTIAL COST SAVING IN SUCH SHIPMENTS. 

IN THE CARPETS AND CARPETING CASE THE COMMISSION APPROVED CERTAIN
RATES SUBJECT TO A MINIMUM WEIGHT OF 30,000 POUNDS ON LINOLEUM.  IN
DOING SO, IT SAID: 

"WE ARE NOT CONVINCED THAT IT WOULD BE REASONABLE FOR THE MOTOR
CARRIERS TO ESTABLISH A MINIMUM OF 30,000 POUNDS IN CONNECTION WITH THE
POSTPONED COLUMN 45 BASIS, BECAUSE IT WOULD REQUIRE MORE THAN ONE UNIT
OF EQUIPMENT TO TRANSPORT 30,000 POUNDS.  ON THIS RECORD, HOWEVER, WE
ARE NOT PREPARED TO SAY THAT THE COLUMN 45 RATES, MINIMUM 30,000
POUNDS, WHERE NOT LOWER THAN THE CORRESPONDING PROPOSED RAIL-WATER
CARLOAD RATES, WOULD BE UNLAWFUL, PROVIDED THAT A RULE IS MADE
APPLICABLE IN CONNECTION THEREWITH TO THE EFFECT THAT SHIPMENTS OF NOT
LESS THAN 30,000 POUNDS ACTUALLY WILL BE RECEIVED AT AND TRANSPORTED
FROM THE POINT OF ORIGIN FROM ONE SHIPPER IN ONE DAY AND ON ONE BILL OF
LADING."  237 I.C.C. 651, 657-658. 

AND IN PEANUT BUTTER FROM MONTGOMERY, ALA., TO GEORGIA, 22 M.C.C.
375, DIVISION 2, ALTHOUGH DECLARING IN ONE BREATH THAT MOTOR CARRIERS
SHOULD NOT MAINTAIN VOLUME RATES SUBJECT TO MINIMUM WEIGHTS GREATER
THAN EQUIPMENT GENERALLY AVAILABLE CAN TRANSPORT, IN THE NEXT NOTED
THAT THE NATIONAL MOTOR-FREIGHT CLASSIFICATION IS REPLETE WITH SUCH
RATINGS, REFUSED TO CONDEMN THEM AND SAID THAT IF THEY WERE RESTRICTED
TO APPLY ONLY WHEN TENDERED BY ONE SHIPPER, IN ONE DAY AND ON ONE BILL
OF LADING, THEY WOULD BE "IN CONSONANCE WITH CARPETS AND CARPETING FROM
OFFICIAL TO SOUTHERN TERRITORY, SUPRA."

            III. 

THESE CASES DISCLOSE DEPARTURES, THOUGH TENTATIVELY MADE, FROM THE
COMMISSION'S LONG-STANDING FN10  POLICY IN THE SAME RESPECT, ADOPTED
WHEN ITS POWERS EXTENDED ONLY TO RAIL CARRIERS.  INFLUENCED PRIMARILY
BY THE DESIRE TO SECURE SHIPPING ADVANTAGES FOR THE SMALL SHIPPER EQUAL
TO THOSE GIVEN THE LARGE ONE AND THUS TO ENFORCE THE POLICY OF THE
INTERSTATE COMMERCE LEGISLATION AGAINST UNDUE DISCRIMINATION, THE
COMMISSION AT FIRST DECLINED TO ADOPT WHOLESALE RATES.  FN11 THE MAJOR
DEPARTURE WAS IN ALLOWING LOWER RATES FOR CARLOAD LOTS THAN FOR LESS
THAN-CARLOAD SHIPMENTS.  THIS WAS JUSTIFIED BY THE DIFFERENCE IN
COSTS.  ACCORDINGLY, THE STRUCTURE BECAME FIXED WITH THIS AS THE MAJOR
AND FOR LONG THE ONLY DIFFERENTIAL; AND WITH IT THE PRINCIPLE THAT SUCH
A SAVING IN OPERATIONS ALONE JUSTIFIES A DIFFERENTIAL.  THAT POLICY
RECEIVED JUDICIAL APPROVAL  FN12  AND REMAINED CONTROLLING SO LONG AS
THE COMMISSION HAD AUTHORITY ONLY OVER RAILROADS. 

BUT WITH THE EVOLUTION OF OTHER FORMS OF CARRIAGE, PARTICULARLY MOTOR
CARRIAGE, AND THE COMMISSION'S ACQUISITION OF CONTROL OVER THEIR RATES
AND OPERATIONS, A NEW SITUATION AROSE.  THE COMMISSION'S TASK NO LONGER
WAS MERELY THE REGULATION OF A SINGLE FORM OF TRANSPORT, TO SECURE
REASONABLE AND NONDISCRIMINATORY RATES AND SERVICE.  IT BECAME, NOT
MERELY THE REGULATOR, BUT TO SOME EXTENT THE COORDINATOR OF DIFFERENT
MODES OF TRANSPORTATION.  WITH THE ADDITION OF MOTOR AND WATER CARRIAGE
TO ITS PREVIOUS JURISDICTION OVER RAILS, IT WAS CHARGED NOT ONLY WITH
SEEING THAT THE RATES AND SERVICES OF EACH ARE REASONABLE AND NOT
UNDULY DISCRIMINATORY, BUT THAT THEY ARE COORDINATED IN ACCORDANCE WITH
THE NATIONAL TRANSPORTATION POLICY, AS DECLARED BY THE LATER
LEGISLATION.  FN13  THIS, WHILE INTENDED TO SECURE THE LOWEST RATES
CONSISTENT WITH ADEQUATE AND EFFICIENT SERVICE AND TO PRESERVE WITHIN
THE LIMITS OF THE POLICY THE INHERENT ADVANTAGES OF EACH MODE OF
TRANSPORTATION, AT THE SAME TIME WAS DESIGNED TO ELIMINATE DESTRUCTIVE
COMPETITION NOT ONLY WITHIN EACH FORM BUT ALSO BETWEEN OR AMONG THE
DIFFERENT FORMS OF CARRIAGE. 

NECESSARILY THE IMPACT OF THESE CHANGES BROUGHT PROBLEMS THE
COMMISSION PREVIOUSLY HAD NOT FACED.  NECESSARILY TOO THE COMMISSION IN
FACING THEM, INCLUDING THOSE OF ADJUSTMENT AMONG THE VARIOUS FORMS OF
TRANSPORTATION, CALLED UPON ITS PREVIOUS EXPERIENCE IN THE RAILROAD
FIELD FOR GUIDANCE TO ITS JUDGMENT.  BUT THAT EXPERIENCE COULD NOT
APPLY FULLY TO THE OTHER AND DIFFERENT FORMS OF CARRIAGE.  NOR COULD IT
DO SO ALWAYS WHEN THE INTERESTS OF TWO OR MORE WERE FOUND IN CONFLICT. 
EACH FORM OF TRANSPORTATION PRESENTS, BY REASON OF ITS PECULIAR
OPERATING CONDITIONS, ITS OWN PROBLEMS FOR THE FUNCTION OF RATE
MAKING.  AND EACH, BY VIRTUE OF COMPETITION WITH OTHERS, PRESENTS
ADDITIONAL COMPLICATIONS ARISING FROM THE VARIED CIRCUMSTANCES OF THEIR
OPERATION.  HENCE, IN SUCH SITUATIONS, PRINCIPLES PREVIOUSLY
ESTABLISHED FOR APPLICATION WITHIN A SINGLE FORM OF TRANSPORTATION
CANNOT ALWAYS BE TRANSPLANTED TO CONTROL ITS RELATIONS WITH ANOTHER OR
THOSE OF BOTH WITH THE PUBLIC GENERALLY, WITHOUT CONSEQUENCES UNDULY
HARMFUL TO ONE OR TO THE PUBLIC INTEREST. 

THUS, IN THE PROBLEM PRESENTED BY THIS CASE, APPLICATION OF THE
PRINCIPLE THAT VOLUME MINIMUM RATES WILL BE ALLOWED ONLY WHEN GEARED TO
A CAPACITY LOADING WHICH MAKES POSSIBLE A REAL SAVING IN COSTS OF
OPERATION, MAY BE MADE WITHIN EITHER THE RAILROAD AREA OR THE MOTOR
AREA WITHOUT SUBSTANTIAL DISTURBANCE OR DIFFICULTY.  EACH HAS ITS UNIT
OF CARRIAGE OR LOADING AND THAT UNIT HAS A SUBSTANTIAL RELATION TO
COSTS; HENCE, UPON THE LONG-ESTABLISHED RAILROAD PRINCIPLE, TO
REASONABLENESS AND THE DISCRIMINATORY OR NONDISCRIMINATORY CHARACTER OF
RATES.  BUT, AS BETWEEN RAILS AND MOTORS, THE TWO UNITS ARE DIFFERENT. 
AND THE TWO FORMS OF CARRIAGE COMPETE, UNLESS THE LOWER RATES GEARED TO
THE RESPECTIVE UNITS ARE OF A CHARACTER THAT EACH FORCES THE OTHER FORM
OF CARRIAGE FROM THE FIELD.  THE JUNCTION OF DIFFERENCE IN AVAILABLE
UNITS, WITH RATES GEARED TO THEM, AND THE FACT OF COMPETITION OR
COMPETITIVE POSSIBILITY PRODUCES OR MAY PRODUCE CONSEQUENCES NEITHER
THE CHARACTER OF THE UNIT NOR THE FACT OF COMPETITION, NOR BOTH
TOGETHER, COULD CREATE IN EITHER FORM OF SERVICE TAKEN ALONE.  IN
SHORT, THE VERY FACT A RAIL CARLOAD IS 30,000 POUNDS AND A TRUCKLOAD
20,000, WITH RATES RESPECTIVELY TIED TO THESE WEIGHTS, MAY MAKE A LIFE
OR-DEATH DIFFERENCE IN THE COMPETITIVE STRUGGLE, WITH CONSEQUENCES
AFFECTING NOT ONLY THE CARRIERS BUT THE PUBLIC INTEREST AS WELL.  AND
APPELLANTS' ARGUMENT THAT A 30,000-POUND MINIMUM IS NECESSARY TO MEET
RAIL COMPETITION IS AT LEAST CONSONANT WITH THE FREQUENT RECOGNITION,
BOTH BY THE COMMISSION AND BY THIS COURT, THAT THERE ARE OCCASIONS WHEN
IT IS APPROPRIATE FOR THE FORMER TO CONSIDER A CARRIER'S NEED TO MEET
OTHER CARRIERS' COMPETITION AS A FACTOR JUSTIFYING WHAT OTHERWISE WOULD
BE AN UNREASONABLE OR AN UNDULY DISCRIMINATORY RATE.  FN14 

BUT WHETHER AND TO WHAT EXTENT COMPETITION MAY HAVE DESTRUCTIVE
EFFECT, OR OTHER CONSEQUENCES HURTFUL TO THE PUBLIC INTEREST, IN A
PARTICULAR SITUATION MAY DEPEND NOT MERELY ON THE DIFFERENCE IN SIZES
OF UNITS, BUT ON OTHER FACTORS.  EACH FORM OF CARRIAGE HAS SOME
INHERENT ADVANTAGES OVER THE OTHERS, SUCH AS MOBILITY, SPEED, NORMAL
VOLUME CAPACITY, ETC.  PURELY LEGAL RESTRICTIONS, SUCH AS LIMITATIONS
UPON TONNAGE PLACED ON TRUCKS BY STATE LAWS, CREATE LIKE OR CONTRARY
EFFECTS.  WHETHER, IN A PARTICULAR SITUATION, THE MERE DIFFERENCE IN
LOADING CAPACITY OR SOME OTHER OR OTHERS OF THE MANY IMPORTANT FACTORS
AFFECTING COMPETITIVE POSITION WILL BE CONTROLLING DEPENDS UPON THE
CHARACTER OF, AND THE FACTORS INVOLVED IN, THAT SITUATION.  AND THIS IS
AS TRUE OF ONE FORM OF TRANSPORTATION AS OF ANOTHER WHEN, BUT FOR RATE
STRUCTURES GEARED SOLELY TO COSTS OF OPERATION, IT COMES WITHIN A
COMPETITIVE TANGENT. 

                                 IV. 

IN SUCH A SITUATION, THEREFORE, TO TIE RATE DIFFERENTIALS EXCLUSIVELY
TO MINIMUM WEIGHTS BASED ON AVAILABLE UNIT SIZE CONCEIVABLY MIGHT
ALLOCATE ALL SHIPMENTS OF THAT SIZE TO THE FORM OF TRANSPORTATION TO
WHICH IT APPERTAINS.  OR, IF THE EFFECT WERE LESS EXTENSIVE, STILL IT
MIGHT IMPOSE CONDITIONS UPON THE COMPETITION UNDULY BURDENSOME OR NOT
REQUIRED BY THE COMPETITIVE SITUATION AND THE APPLICABLE STATUTORY
POLICIES.  THUS, APPELLANTS SAY THE COMMISSION'S RULING HAS SUCH
CONSEQUENCES IN THIS CASE, NAMELY, TO FORCE THEM TO MAKE THE 45 PER
CENT RATE AVAILABLE ON SHIPMENTS BETWEEN 20,000 AND 30,000 POUNDS, THUS
PLACING THE RAILROADS AT A DISADVANTAGE ON SUCH TONNAGES AND COMPELLING
THE MOTOR CARRIERS TO REDUCE THEIR RATES ON THEM BELOW WHAT THE
COMPETITION REQUIRES; OR TO COMPEL THEM TO FOREGO AN EQUALITY OF RATE
WITH THE RAILROADS ON SHIPMENTS OF 30,000 POUNDS AND MORE BY CHARGING
ONLY THE ONE RATE OF 47.5 PER CENT ON ALL SHIPMENTS OF 20,000 POUNDS
AND MORE.  FROM THESE ALTERNATIVES IT IS CHARGED THE CONSEQUENCE IS TO
FORCE THE TRUCKERS "OUT OF THAT VERY LARGE FIELD OF TRAFFIC" AND
ALLOCATE IT TO THE RAILROADS.  WHETHER THIS IS THE EFFECT OR NOT, WE
HAVE NO MEANS OF KNOWING ON THIS RECORD.  NOR CAN WE TELL, OTHER THAN
BY SHEER ACCEPTANCE OF THE COMMISSION'S CONCLUSION, IN THE FORM OF ITS
STATEMENT OF THE RESULT AND CRYPTIC FORMULATION OF THE POLICY ON WHICH
IT IS RESTED, WHETHER THE PROPOSED RATES WILL GIVE THE MOTOR CARRIERS
AN UNDUE COMPETITIVE ADVANTAGE AS TO SHIPMENTS OF 20,000 TO 30,000
POUNDS, WHETHER THERE WILL BE DISCRIMINATION IN FACT BETWEEN CLASSES OF
SHIPPERS, OR WHETHER THOUGH THESE THINGS MAY RESULT IN THE PARTICULAR
SITUATION THEY WILL DO SO ONLY BY VIRTUE OF ITS PECULIAR FEATURES OR BY
VIRTUE OF ITS CONFORMITY TO CONDITIONS GENERALLY PREVAILING IN REGIONS
COMPETITIVE AS BETWEEN RAIL AND MOTOR CARRIERS. 

THESE, AND OTHER QUESTIONS OF LIKE IMPORT, REMAIN UNANSWERED UPON THE
RECORD.  THE PROBLEM IS NOVEL.  IT IS NOT FREE FROM COMPLEXITY, AS
APPEARS FROM THE COMMISSION'S HESITANT DEPARTURES FROM, THEN ITS RETURN
TO, THE LONG-ESTABLISHED RAILROAD RULE, IN INTER-CARRIER SITUATIONS. 
FURTHER, THE MATTER IS ONE OF GENERAL IMPORTANCE.  IT AFFECTS NOT ONLY
SHIPMENTS OF LINOLEUM, AND MOTOR CARRIERS, BUT MANY KINDS OF SHIPMENT
AND ALL KINDS OF CARRIERS WITHIN THE COMMISSION'S JURISDICTION.  IT MAY
TOUCH VITALLY THE PUBLIC INTEREST.  IT INVOLVES, TO SOME EXTENT, THE
IMPORTANT TASK OF RECONCILING PREVIOUSLY ESTABLISHED RAILROAD POLICIES
WITH, OR ADAPTING THEM TO, THE REQUIREMENTS OF THE PRESENTLY EFFECTIVE
NATIONAL TRANSPORTATION POLICY AND ITS APPLICATION TO A COORDINATED
TRANSPORTATION SYSTEM.  UPON A MATTER OF SUCH CONSEQUENCE AND
COMPLEXITY, OUR FUNCTION IN REVIEW CANNOT BE PERFORMED WITHOUT FURTHER
FOUNDATION THAN HAS BEEN MADE. 

WE DO NOT MEAN BY THIS TO IMPLY THAT THE RESULT THE COMMISSION HAS
REACHED WOULD NOT BE SUSTAINED IF A SUFFICIENT BASIS WERE SUPPLIED IN
THE RECORD.  WE DO NOT UNDERTAKE TO DETERMINE WHAT RESULT THE
COMMISSION SHOULD REACH.  BUT WE CANNOT SAY THE ONE AT WHICH IT HAS
ARRIVED HAS THE SANCTION OF LAW WITHOUT FURTHER BASIS THAN WE NOW
HAVE.  THIS IN ITSELF REQUIRES REVERSAL.  CONSEQUENTLY WE NEED NOT
SPEAK CONCERNING APPELLANTS' OTHER CONTENTIONS, EXCEPT INSOFAR AS THE
PERTINENCE OF SOME OF THEM TO THE NECESSARY FURTHER PROCEEDINGS
REQUIRES. 

                           V. 

APPELLANTS' BROADEST CONTENTION MUST BE REJECTED AT THIS STAGE.  IT
IS, IN EFFECT, THAT AS A MATTER OF LAW, IN THE PARTICULAR CIRCUMSTANCES
COMPETITIVE NECESSITY BECOMES THE CONTROLLING CONSIDERATION, AND COSTS
OF OPERATION, THAT IS THE REQUIREMENT THAT MINIMUM VOLUME RATES BE
GEARED TO LOADING CAPACITY, BECOME IMMATERIAL.  THAT VIEW MUST BE
REJECTED FOR THE SAME REASON AS REQUIRES REJECTION, ON THIS RECORD AND
UNTIL FURTHER BUTTRESSED, OF THE COMMISSION'S CONVERSE VIEW THAT COSTS
EXCLUSIVELY CONTROL AND COMPETITION BECOMES IMMATERIAL.  CONCEIVABLY
PARTICULAR CIRCUMSTANCES MIGHT MAKE ONE OR THE OTHER FACTOR PREDOMINANT
AND, IN SUCH A SITUATION, THE CHOICE WOULD BE FOR THE COMMISSION TO
MAKE, UPON A PROPER WEIGHING OF THE FACTS AND OPPOSING POLICIES
POSSIBLY APPLICABLE.  WHETHER IN ANY CASE THIS CONTENTION OF APPELLANTS
COULD BE ACCEPTED MAY BE DOUBTFUL.  CERTAINLY IT SHOULD NOT BE IN
ADVANCE OF FURTHER ACTION BY THE COMMISSION AND THEN ONLY IN
CIRCUMSTANCES WHICH WOULD JUSTIFY IT AS BEING IN THE PUBLIC INTEREST SO
CLEARLY THAT NO OTHER VIEW WOULD BE TENABLE. 

APPELLANTS ALSO SAY THAT AS A MATTER OF LAW THERE COULD BE NO UNJUST
DISCRIMINATION IN THE PRESENT CIRCUMSTANCES, SINCE THEY INSIST THERE IS
NO SHOWING, UPON THE FACTS, THAT DIFFERENT CLASSES OF SHIPPERS WOULD BE
AFFECTED.  ON THE CONTRARY THEY ASSERT THAT ALL SHIPPERS ACTUALLY ARE
IN THE SAME CLASS AND ALL ARE FREE TO AVAIL THEMSELVES OF THE
ALTERNATIVE RATES ABOVE 20,000 AND 30,000 POUNDS, 47.5 PER CENT AND 45
PER CENT, RESPECTIVELY, AS THEY PLEASE.  BUT THE ONLY BASES FOR THIS
ASSERTION ARE, FIRST, THE ABSENCE OF ANY FINDING THAT THE AVAILABILITY
OF THE 45 PER CENT RATE, MINIMUM 30,000 POUNDS, "WOULD IN PRACTICAL
EFFECT BE CONFINED TO ONLY A FEW OR A PARTICULAR CLASS OF SHIPPERS" AND
THE FURTHER ASSERTION THAT NO SUCH FINDING COULD BE MADE, SINCE 30,000
POUND SHIPMENTS OF LINOLEUM "ARE THE NORMAL UNITS OF QUANTITY PURCHASE
AND SALE AS REVEALED BY THE RAILROAD CARLOAD RATES WHICH APPLY BETWEEN
THE SAME LOCALITIES ONLY ON SHIPMENTS OF 30,000 POUNDS."  OBVIOUSLY, AS
THE COMMISSION NOTED, THE MERE EXISTENCE OF THESE RATES IN THE TARIFFS
HARDLY COULD BE TAKEN TO PROVE THE CONCLUSION APPELLANTS SOUGHT TO DRAW
FROM THAT FACT.  CERTAINLY IT COULD NOT BE TAKEN AS CONCLUSIVE
EVIDENCE.  WHETHER OR NOT, HOWEVER, THE PROPOSED RATES IN FACT WOULD
OPERATE TO CREATE AN UNDUE DISCRIMINATION BETWEEN SHIPPERS, OR CLASSES
OF THEM, IS A MATTER UPON WHICH THE RECORD FACTUALLY THROWS NO LIGHT. 
IT IS THEREFORE ONE FOR FURTHER EXAMINATION BY THE COMMISSION.    IN
RETURNING THE CASE WE EMPHASIZE THAT WE DO NOT QUESTION THE
COMMISSION'S AUTHORITY TO ADOPT AND APPLY GENERAL POLICIES APPROPRIATE
TO PARTICULAR CLASSES OF CASES, SO LONG AS THEY ARE CONSISTENT WITH THE
STATUTORY STANDARDS WHICH GOVERN ITS ACTION AND ARE FORMULATED NOT ONLY
AFTER DUE CONSIDERATION OF THE FACTORS INVOLVED BUT WITH SUFFICIENT
EXPLICATION TO ENABLE THE PARTIES AND OURSELVES TO UNDERSTAND, WITH A
FAIR DEGREE OF ASSURANCE, WHY THE COMMISSION ACTS AS IT DOES.  CF.
UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP., 315 U.S. 475, 488,
489.  OBSERVANCE OF THIS REQUIREMENT IS AS NECESSARY WHEN AN
ESTABLISHED POLICY IS BEING EXTENDED TO NEW AND SIGNIFICANT SITUATIONS
AS WHEN A NEW POLICY IS BEING FORMULATED AND APPLIED IN THE FIRST
INSTANCE.  WE DO NOT UNDERTAKE TO TELL THE COMMISSION WHAT IT SHOULD DO
IN THIS CASE.  THAT IS NOT OUR FUNCTION.  WE ONLY REQUIRE THAT,
WHATEVER RESULT BE REACHED, ENOUGH BE PUT OF RECORD TO ENABLE US TO
PERFORM THE LIMITED TASK WHICH IS OURS. 

THE JUDGMENT IS REVERSED. 

FN1  SO IT WAS FOUND, IN EACH INSTANCE, UPON THE EVIDENCE, AND THE
FINDING IS NOT DISPUTED.  THE FIGURES ARE ONLY APPROXIMATE; THAT IS,
30,000 POUNDS REPRESENTS NOT AN EXACT CARLOAD CAPACITY, SINCE
DIFFERENCES IN LOADING CHARACTERISTICS OF COMMODITIES AND SLIGHT
DIFFERENCES IN CARLOAD CAPACITIES, MAY MAKE POSSIBLE LOADING SLIGHTLY
MORE OR LESS IN A CAR.  SIMILAR, PERHAPS SOMEWHAT WIDER, VARIATIONS
AFFECT TRUCKS.  THE FINDINGS WERE THAT 20,000 POUNDS REASONABLY CAN BE
VIEWED AS A MINIMUM WEIGHT GEARED TO TRUCKLOAD CAPACITY, THOUGH IN SOME
INSTANCES AS MUCH AS 22,000 OR 25,000 POUNDS ACTUALLY CAN BE LOADED IN
ONE VEHICLE. 

FN2  CF. CARPETS AND CARPETING FROM OFFICIAL TO SOUTHERN TERRITORY,
237 I.C.C. 651; PEANUT BUTTER FROM MONTGOMERY, ALA., TO GEORGIA, 22
M.C.C. 375. 

FN3  TWO PROCEEDINGS, INVESTIGATION & SUSPENSION DOCKET NO. M-1216
AND NO. M-1445, WERE HEARD SEPARATELY, BUT CONSOLIDATED BEFORE THE
DIVISION. 

FN4  E.G., MOLASSES FROM NEW ORLEANS, LA., TO PEORIA AND PEKIN, ILL.,
235 I.C.C. 485. 

FN5  THIS INTERVENOR DID NOT APPEAR IN THE DISTRICT COURT, NOT HAVING
NOTICE OF THE PROCEEDINGS THERE UNTIL AFTER THE ARGUMENT THERE.  THE
APPEARANCE HERE IS BY VIRTUE OF AN ORDER GRANTING A MOTION TO
INTERVENE. 

FN6  THE DECREE DISMISSED APPELLANTS' BILL TO SET ASIDE AND ENJOIN
ENFORCEMENT OF THE COMMISSION'S ORDER OF SUSPENSION.  THE COURT AGREED
THAT THE PROPOSED RATE OF 45 PER CENT, MINIMUM 30,000 POUNDS, IS "A
MERE ADOPTION ON A VOLUME BASIS OF RATES FOR RAILROAD CARLOAD LOTS,"
HAVING "NO RELATION TO THE BUSINESS OF THE MOTOR CARRIERS," BOTH
BECAUSE THERE WAS NO SHOWING OF ANY SAVING IN OPERATING COSTS WHEN
CARRYING MORE THAN 20,000 POUNDS AND BECAUSE THERE WAS NONE THAT A 45
TO 47.5 RATE, FOR ANYTHING BEYOND 20,000 POUNDS "WOULD NOT ENABLE THEM
TO MAINTAIN REASONABLE COMPETITION WITH THE RAILROADS."  AS TO THE
FINDING THAT RATES OF EITHER 45 OR 47.5 PER CENT, MINIMUM 20,000
POUNDS, WOULD NOT IN THEMSELVES BE UNREASONABLE, THE COURT SAID THIS
"DOES NOT NEGATIVE THE FINDING OF AN UNJUST ADVANTAGE TO SHIPPERS OF
30,000 POUND LOTS IN CASES WHERE SHIPPERS OF 20,000 POUND LOTS ARE NOT
GIVEN THE SAME TREATMENT." 

FN7  THE COURT FOUND THAT THE COMMISSION HAD MET THE SECTION'S
REQUIREMENTS "IN THAT IT HAS GIVEN 'DUE CONSIDERATION  ...  TO THE
INHERENT ADVANTAGES OF TRANSPORTATION BY SUCH CARRIERS, (AND)  ...  TO
THE NEED, IN THE PUBLIC INTEREST, OF ADEQUATE AND EFFICIENT
TRANSPORTATION SERVICE BY SUCH CARRIERS AT THE LOWEST COST CONSISTENT
WITH THE FURNISHING OF SUCH SERVICE.  ...  '"  NO SPECIFIC REFERENCE
WAS MADE, HOWEVER, TO THE OVER-ALL NATIONAL TRANSPORTATION POLICY, OR
ITS REQUIREMENTS PARTICULARLY IN RELATION TO THE COMMISSION'S DUTY "TO
...  FOSTER SOUND ECONOMIC CONDITIONS  ...  AMONG THE SEVERAL CARRIERS;
TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF REASONABLE CHARGES,
...  WITHOUT  ...  UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES; ...
ALL TO THE END OF DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL
TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND RAIL.  ...  "  CF. NOTE 13
INFRA AND TEXT. 

FN8  THE COMMISSION LONG HAS RECOGNIZED THAT "REFERENCE TO AND  ...
CONSIDERATION OF ALL PERTINENT FACTS, CIRCUMSTANCES, AND CONDITIONS
AFFECTING THE RATE IN EFFECT AT ANY PARTICULAR TIME" ARE NECESSARY.  20
I.C.C. 43.  INCLUDED AS PERTINENT HAVE BEEN SUCH "FACTS, CIRCUMSTANCES,
AND CONDITIONS" AS THE EXPENSE ATTRIBUTABLE TO THE CHARACTER OF THE
COMMODITY, E.G., WHETHER IT IS SUBJECT TO SPECIAL RISKS OR REQUIRES
SPECIAL SERVICES, CF. INTERSTATE COMMERCE COMMISSION V. CHICAGO GREAT
WESTERN RY. CO., 209 U.S. 108; 113 I.C.C. 389; 87 I.C.C. 711, OR ITS
TRANSPORTATION CHARACTER IS AFFECTED BY THE MANNER OF PACKING, 98
I.C.C. 166; THE VALUE OF THE SERVICE RENDERED AND OF THE COMMODITY,
E.G., 83 I.C.C. 334; 100 I.C.C. 471; 102 I.C.C. 325; CF. INTERSTATE
COMMERCE COMMISSION V. DELAWARE, L. & W.R. CO., 64 F.
723(C.C.N.D.N.Y.); THE POSSIBILITY OF SECURING CONTINUOUS BUSINESS OR
ADDITIONAL TONNAGE, INTERSTATE COMMERCE COMMISSION V. BALTIMORE & OHIO
R. CO., 145 U.S. 263; PECULIAR NEEDS OR CONDITIONS AFFECTING SPECIFIC
AREAS, 9 I.C.C. 318; 113 I.C.C. 389; 146 I.C.C. 419; CF. TEXAS &
PACIFIC RY. CO. V. INTERSTATE COMMERCE COMMISSION, 162 U.S. 197; RATES
ON THE SAME OR SIMILAR COMMODITIES ELSEWHERE, 113 I.C.C. 389; 122
I.C.C. 235; AND THE NEED TO MEET COMPETITION, EITHER BY THE SAME OR
OTHER TYPE OF CARRIER, TEXAS & PACIFIC RY. CO. V. INTERSTATE COMMERCE
COMMISSION, 162 U.S. 197; INTERSTATE COMMERCE COMMISSION V. ALABAMA
MIDLAND RY. CO., 168 U.S. 144; TEXAS & PACIFIC RY. CO. V. UNITED
STATES, 289 U.S. 627; UNITED STATES V. ILLINOIS CENTRAL R. CO., 263
U.S. 515; MISSISSIPPI VALLEY BARGE LINE CO. V. UNITED STATES, 292 U.S.
282; BARRINGER & CO. V. UNITED STATES, 319 U.S. 1.  SEE ALSO 142 I.C.C.
121; 235 I.C.C. 485; 235 I.C.C. 723; 237 I.C.C. 651. 

FN9  THE BRIEF OF THE NATIONAL INDUSTRIAL TRAFFIC LEAGUE, INTERVENOR,
POINTS OUT THAT APPELLANTS AND OTHER CARRIER ASSOCIATIONS JOINED IN A
PETITION TO THE COMMISSION FOR REARGUMENT AND RECONSIDERATION OF ELEVEN
CASES PREVIOUSLY DECIDED BY DIVISIONS 2 AND 3, INCLUDING THE ONE
PRESENTLY INVOLVED, I. AND S. NO. M-1216.  THE PETITION WAS REJECTED,
SINCE THE PETITIONERS WERE NOT PARTIES OF RECORD TO ALL THE
PROCEEDINGS.  BUT COINCIDENTALLY THE COMMISSION REOPENED I. AND S. NO.
M-1216, FOR ORAL ARGUMENT. 

FN10  E.G., PAINE BROS. & CO. V. LEHIGH VALLEY R. CO., 7 I.C.C. 218;
ANACONDA COPPER MINING CO. V. CHICAGO & ERIE R. CO., 19 I.C.C. 592,
596; RICKARDS V. ATLANTIC COAST LINE R. CO., 23 I.C.C. 239, 240;
WOODWARD BENNETT CO. V. SAN PEDRO, L.A. & ST. L.R.R., 29 I.C.C. 664,
665; J.W. WELLS LUMBER CO. V. CHICAGO, M. & ST. P. RY., 38 I.C.C. 464,
465; AND COMPARE SCOFIELD V. LAKE SHORE & MICHIGAN SO. RY. CO., 2
I.C.C. 90. 

FN11  SEE NOTE 10 SUPRA. 

FN12  COMPARE INTERSTATE COMMERCE COMMISSION V. DELAWARE, L. & W.
CO., 220 U.S. 235, 240-241. 

FN13  MOTOR CARRIER ACT OF 1935, 49 STAT. 543; TRANSPORTATION ACT OF
1940, 54 STAT. 899. 

THAT POLICY DEMANDS THAT ALL MODES OF TRANSPORTATION SUBJECT TO THE
PROVISIONS OF THE INTERSTATE COMMERCE ACT BE SO REGULATED AS, IN THE
STATUTE'S LANGUAGE, TO "RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES
OF EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE
AND FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; ...  ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE."  54 STAT. 899.  CF. MCLEAN TRUCKING CO. V. UNITED
STATES, ANTE, P. 67. 

FN14  CF. NOTE 8 SUPRA. 

MR. JUSTICE FRANKFURTER, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE
REED CONCUR, DISSENTING: 

THIS CASE IN ITS ESSENTIALS CAN BE REDUCED TO SIMPLE TERMS; IN
EFFECT, THE QUESTION IS WHETHER THE INTERSTATE COMMERCE COMMISSION
ACTED UNLAWFULLY IN HOLDING UNREASONABLE AND DISCRIMINATORY A PROPOSED
SCHEDULE OF RATES FOR THE SHIPMENT OF LINOLEUM IN TRUCKS OPERATED BY
MEMBERS OF APPELLANTS, ASSOCIATIONS OF MOTOR CARRIERS.  THE FACTS ARE
THESE.  ON LINOLEUM SHIPMENTS BETWEEN POINTS IN NEW ENGLAND, NEW
JERSEY, DELAWARE, PENNSYLVANIA, AND NEW YORK, AND DESTINATIONS IN IOWA,
KANSAS, MINNESOTA, MISSOURI, NEBRASKA, AND SOUTH DAKOTA, THE MEMBERS OF
THE EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION CHARGED 50% OF FIRST
CLASS RATES, MINIMUM 20,000 POUNDS.  FN1  THIS MINIMUM IS APPROXIMATELY
THE WEIGHT WHICH CONVENTIONALLY IS A TRUCKLOAD.  RAILROAD RATES ON
LINOLEUM AT THIS TIME WERE 70% OF FIRST-CLASS FOR SHIPMENTS OF LESS
THAN 30,000 POUNDS AND 45% OF FIRST-CLASS FOR THOSE WEIGHING AT LEAST
30,000 POUNDS - A CONVENTIONAL RAILROAD CARLOAD. 

BY SCHEDULES FILED TO BECOME EFFECTIVE AUGUST 24TH, 1940, EASTERN
PROPOSED RATES OF 47.5% OF FIRST-CLASS, MINIMUM 20,000 POUNDS, AND 45%
OF FIRST-CLASS, MINIMUM 30,000 POUNDS.  THE PRACTICAL EFFECT OF THIS
CHANGE WOULD BE TO REQUIRE A SHIPPER WHO COULD SEND ONLY 20,000 POUNDS
OF LINOLEUM TO PAY A HIGHER RATE THAN ONE WHO COULD SHIP A CONSIGNMENT
OF 20,000 AND 10,000 POUNDS.  AND TWO SHIPPERS, ONE WITH 10,000 POUNDS
AND THE OTHER WITH 20,000 POUNDS COULD COMBINE THEIR SHIPMENTS AT THE
LOWER RATE, WHILE A SHIPPER OF 10,000 POUNDS WHO COULD NOT CONVENIENTLY
JOIN WITH OTHERS WOULD HAVE TO PAY THE HIGHER RATE.  THESE ARE THE
CHANGES HERE IN CONTROVERSY.  UPON THE PROTEST OF THE WESTERN TRUNK
LINE RAIL CARRIERS, LATER WITHDRAWN WHEN THE APPELLANTS AGREED THAT
THEIR 30,000 POUND MINIMUM RATE WOULD APPLY ONLY ON SHIPMENTS "RECEIVED
AT AND TRANSPORTED FROM THE POINT OF ORIGIN, FROM ONE SHIPPER IN ONE
DAY AND ON ONE BILL OF LADING," OPERATION OF THE PROPOSED SCHEDULES WAS
SUSPENDED AND DIVISION 3 OF THE COMMISSION HELD HEARINGS TO DETERMINE
THEIR VALIDITY.  UPON THEIR CONCLUSION, DIVISION 3 FOUND THAT THE
PROPOSED RATES WERE REASONABLY COMPENSATORY, BUT THAT IT WAS PHYSICALLY
IMPOSSIBLE TO LOAD 30,000 POUNDS OF LINOLEUM INTO A SINGLE UNIT OF
EQUIPMENT, AND THAT THERE WAS NO SHOWING THAT OPERATING ECONOMIES
RESULT WHEN A 30,000 POUND MINIMUM SHIPMENT INVOLVING A TRUCKLOAD AND
FRACTION OF ANOTHER TRUCKLOAD IS TENDERED.  THE DIVISION THEREUPON
CONCLUDED THAT A MINIMUM WEIGHT GREATER THAN A TRUCKLOAD IS
UNREASONABLE UNLESS SUCH A RATE IS JUSTIFIED BY SAVINGS IN COST, AND
ORDERED THE PROPOSED SCHEDULES CANCELLED TO THE EXTENT FOUND UNJUST AND
UNREASONABLE.  31 M.C.C. 193. 

THIS DECISION WAS FULLY REVIEWED BY THE ENTIRE COMMISSION UPON ORAL
AND PRINTED ARGUMENTS BY THE MOTOR CARRIERS, THE LINOLEUM SHIPPERS, AND
THE NATIONAL INDUSTRIAL TRAFFIC LEAGUE, A GROUP ORGANIZED TO PROMOTE
THE FREE INTERCHANGE OF COMMERCE.  THE SHIPPERS AND THE TRAFFIC LEAGUE
URGED THE COMMISSION TO LEAVE THE ORDER OF DIVISION 3 UNDISTURBED,
WHILE THE MOTOR CARRIERS SOUGHT TO JUSTIFY THE RATES AS LEGITIMATE
MEANS OF MEETING RAIL COMPETITION.  THE COMMISSION AGREED WITH DIVISION
3 THAT THE RATES WERE UNREASONABLE AND HELD THAT THE 30,000 POUND
MINIMUM, BASED ON NO DIFFERENCE IN TRANSPORTATION COST, WOULD BE
DISCRIMINATORY.  34 M.C.C. 641. 

IF THE SOLE ISSUE WERE WHETHER THERE WOULD BE DISCRIMINATION IN FAVOR
OF THE 30,000 POUND LOT SHIPPER AS AGAINST THE 20,000 POUND LOT
SHIPPER, CLEARLY THE COMMISSION COULD FIND AS IT DID, AND THE COURT
BELOW PROPERLY DID NOT UNDO WHAT THE COMMISSION DID.  48 F.SUPP.  432. 
IS THERE IN FACT MORE?  THE APPELLANTS CONTEND THAT RAIL COMPETITION
EXCUSES AND LEGALIZES THE DISCRIMINATION BEYOND THE COMMISSION'S POWER
TO CONDEMN.  THIS COURT DOES NOT YIELD TO THAT CLAIM, BUT IT DOES HOLD
THAT EITHER THE COMMISSION MUST STATE WITH PARTICULARITY WHY THE
EVIDENCE OF COMPETITIVE CONDITIONS IN THIS RECORD IS SO VAGUE AND
INADEQUATE AS TO AFFORD NO JUSTIFICATION FOR DISCRIMINATION, OR, IN
EFFECT, REQUIRES THE COMMISSION TO PROCEED WITH A FULL-DRESS
INVESTIGATION OF THE ENTIRE COMPETITIVE RELATIONS BETWEEN MOTOR AND
RAIL CARRIERS. 

THE COMMISSION, ON THE BASIS OF THE EVIDENCE BEFORE IT, CONCLUDED
THAT "THE COMPETITION BETWEEN RAIL AND MOTOR CARRIERS FOR LINOLEUM
TRAFFIC DOES NOT CONSTITUTE SUCH A DISSIMILARITY IN CIRCUMSTANCES AND
CONDITIONS AS TO RENDER LEGAL THE PROPOSED DISCRIMINATION."  PRIOR
DECISIONS OF THIS COURT SURELY DO NOT REQUIRE GREATER EXPLICATION OF
THE REASONS ON WHICH THE COMMISSION'S CONCLUSIONS ARE BASED.  SEE
BEAUMONT, S.L. & W. RY. CO. V. UNITED STATES, 282 U.S. 74, 86-87;
UNITED STATES V. B. & O.R. CO., 293 U.S. 454, 464-465.  THE COMMISSION
DID NOT ADOPT AN INFLEXIBLE "PRINCIPLE THAT VOLUME MINIMUM RATES WILL
BE ALLOWED ONLY WHEN GEARED TO A CAPACITY LOADING WHICH MAKES POSSIBLE
A REAL SAVING IN COSTS OF OPERATION," IF ITS STATEMENT THAT "THE EXTENT
TO WHICH COMPETITION BETWEEN CARRIERS MAY RENDER DISCRIMINATION AND
PREJUDICE NOT UNLAWFUL MUST BE DECIDED UPON THE FACTS IN EACH CASE" IS
TO BE ACCEPTED.  BURKE HAS SAID SOMEWHERE THAT HE COULD NOT IMAGINE
ENGLISH LAW WITHOUT THE LAW REPORTS.  SUBSTANTIALLY THE SAME
CONSIDERATIONS THAT CALL FOR GIVING REASONS IN RENDERING JUDICIAL
DECISIONS APPLY TO THE DETERMINATIONS OF SUCH AGENCIES AS THE
INTERSTATE COMMERCE COMMISSION.  "WE MUST KNOW WHAT A DECISION MEANS
BEFORE THE DUTY BECOMES OURS TO SAY WHETHER IT IS RIGHT OR WRONG."  SEE
UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294 U.S. 499, 511. 
BUT WE SHOULD NOT BE MORE EXACTING OF REPORTS OF THE INTERSTATE
COMMERCE COMMISSION EXPLAINING ITS ORDERS THAN WE ARE OF THE OPINIONS
OF LOWER COURTS WHOSE JUDGMENTS COME BEFORE US FOR REVIEW.    NOTHING
IN THIS RECORD CALLS FOR MORE EXPLICITNESS THAN IS ORDINARILY
DEMANDED.  FOR NOTHING IN THE RECORD REQUIRES THE COMMISSION TO DISCUSS
THE CONCEIVABLE VALIDITY OF PROPOSED SCHEDULES WHICH, ASIDE FROM
COMPETITIVE CONDITIONS, ARE MANIFESTLY DISCRIMINATORY.  SUCH
DISCRIMINATORY RATES WERE SUPPORTED BY A BARE RECITAL THAT RAILROAD
RATES WERE NOMINALLY LOWER THAN MOTOR CARRIER RATES AND THAT THE
BUSINESS OF ONE MOTOR CARRIER HAD DECREASED.  AT THE HEARING BEFORE THE
DIVISION, A REPRESENTATIVE OF ONE MOTOR CARRIER STATED THAT THE
PROPOSED RATES WERE MORE THAN ADEQUATE TO COVER COSTS, THAT THEY DID
NOT VARY SUBSTANTIALLY FROM RATES IMPOSED ON THE SHIPMENT OF OTHER
COMPARABLE COMMODITIES, AND THAT RAILROAD COMPETITION HAD CAUSED HIS
COMPANY'S LINOLEUM BUSINESS TO DECLINE.  HE ALSO TESTIFIED THAT HIS
FIRM COMPETED FOR LINOLEUM SHIPMENTS WITH OTHER MOTOR CARRIERS.  THIS
IS THE PROPOSED JUSTIFICATION FOR A RATE DIFFERENTIAL CONCEDEDLY BASED
ON NO DIFFERENCE IN TRANSPORTATION COST OR IN SERVICE RENDERED AND
WHICH THEREFORE DISCRIMINATES BETWEEN THOSE WHO SHIP 30,000 POUND LOTS
AND THOSE WHO SHIP 20,000 POUND LOTS.  AND THE RECORD BECOMES EVEN MORE
BARREN WHEN IT IS NOTED THAT THE COMPETITIVE CONDITIONS SAID TO REQUIRE
ADOPTION OF THE PROPOSED DISCRIMINATORY TARIFFS WERE NOT SUCH AS TO
PREVENT THE RAIL CARRIERS' ACQUIESCENCE IN THE ADOPTION OF THE NEW
SCHEDULE WHEN, ON APPELLANTS' THEORY, THE RAIL CARRIERS HAD ADVANTAGES
INTENDED TO BE MITIGATED BY THE NEW RATES.  THE COMMISSION FOUND THAT
EITHER 47.5% OR 45% WAS AN ALLOWABLE RATE FOR EITHER A 30,000 OR 20,000
POUND SHIPMENT - EITHER RATE "WAS WITHIN THE ZONE OF REASONABLENESS." 
IT THEREBY PERMITTED THE MOTOR CARRIERS TO COMPETE ON AN ENTIRE
EQUALITY WITH THE RAIL CARRIERS.  BUT IT FORBADE DISCRIMINATION AS
BETWEEN LINOLEUM SHIPPERS EQUALLY PLACED.  WHAT THE APPELLANTS REALLY
COMPLAIN OF IS NOT THAT THEY CANNOT MEET THE RAILROAD COMPETITION AT
THE 45% RATE ON 30,000 POUND LOTS, BUT THAT THEY CANNOT DO SO AND YET
COLLECT 47.5% ON LOTS OF 20,000 POUNDS WHICH ARE OUTSIDE RAIL
COMPETITION.  BE THAT AS IT MAY, A MERE ARITHMETIC DIFFERENCE BETWEEN
RAILROAD RATES AND MOTOR CARRIER RATES IS QUITE BLIND.  THE RATES
THEMSELVES MAY NOT BE AT ALL REVEALING ON COMPETITIVE CONDITIONS; THEY
MAY NOT TELL WHAT A SHIPPER GETS FOR HIS MONEY AND WHAT HE IS PAYING
FOR.  THAT IS, THE QUALITY OF THE SERVICE, THE ADVANTAGES OF ONE TYPE
OF SERVICE OVER THE OTHER, THE AVAILABILITY OF EQUIPMENT, SAFETY, LABOR
COST, AND MANY OTHER FACTORS MAY ALL GIVE SIGNIFICANCE TO THE FIGURES
THAT FIGURES THEMSELVES DO NOT GIVE. 

THE PRESENT RULING APPARENTLY IMPOSES UPON THE COMMISSION THE DUTY OF
PURSUING SUCH COMPLICATED AND FARREACHING INVESTIGATIONS EVERY TIME A
MOTOR CARRIER RATE THAT MAY HAVE A RELATION TO A RAILROAD RATE IS FOUND
TO BE DISCRIMINATORY IN RELATION TO ANOTHER MOTOR CARRIER RATE
AFFECTING THE SAME COMMODITY.  SUCH AN INVESTIGATION IS AN UNDERTAKING
OF VAST SCOPE INVOLVING CONSIDERATION OF FACTORS WHICH IT WOULD REQUIRE
AN EXPERT MERELY TO CATALOGUE.  THE DIFFERENT CHARACTERISTICS OF RAIL
AND MOTOR CARRIER SERVICES, THE ECONOMIC WISDOM OF EXCLUDING MOTOR
CARRIERS FROM LARGE-BULK LINOLEUM TRADE OR LIMITING THEIR PARTICIPATION
IN SUCH TRADE, THE AVAILABILITY OF OTHER COMMODITY SHIPMENTS TO REPLACE
LINOLEUM TRADE DIVERTED TO RAIL CARRIERS, THE AVAILABILITY OF AND COST
OF TRANSPORTING COMMODITIES WHICH MIGHT BE USED TO FILL THE TRUCK ONLY
PARTIALLY LOADED WITH LINOLEUM - THESE ARE ONLY A FEW OF THE FACTORS
WHICH MAY BECOME RELEVANT.  COMPARE III-B SHARFMAN, THE INTERSTATE
COMMERCE COMMISSION, PP. 572 ET SEQ. THE APPELLANTS INTRODUCED NO
EVIDENCE ON THE BASIS OF WHICH THE COMMISSION COULD INTELLIGENTLY WEIGH
THESE CONSIDERATIONS.  TO HOLD THAT THE COMMISSION MUST ON ITS OWN
INITIATIVE EMBARK ON SUCH AN INVESTIGATION IN A PROCEEDING OF THIS
NATURE IS TO IMPOSE WHAT MAY WELL BE A CRIPPLING BURDEN. 

TO SPEAK MORE PARTICULARLY OF THE TASK WHICH THE COMMISSION NOW
FACES, IT SHOULD BE NOTED THAT EASTERN FILES TARIFFS WITH THE
COMMISSION FOR ABOUT 650 CARRIER MEMBERS.  A TYPICAL COMMODITIES CLAUSE
FROM THE CARRIERS' CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY
PROVIDES FOR THE SHIPMENT OF "GENERAL COMMODITIES, EXCEPT THOSE OF
UNUSUAL VALUE, AND EXCEPT DANGEROUS EXPLOSIVES, HOUSEHOLD GOODS AS
DEFINED IN PRACTICES OF MOTOR COMMON CARRIERS OF HOUSEHOLD GOODS, 17
M.C.C. 467, COMMODITIES IN BULK, COMMODITIES REQUIRING SPECIAL
EQUIPMENT, AND THOSE INJURIOUS OR CONTAMINATING TO OTHER LADING, OVER
REGULAR ROUTES  ...  "  THUS IT APPEARS THAT THE EXCEPTIONS ARE FEW AND
THE ALLOWABLE SHIPMENTS MANY.  AN INVESTIGATION OF THE SCOPE APPARENTLY
REQUIRED BY THE COURT WOULD ENTAIL A DETAILED STUDY OF THE RELATIONS OF
THE RATE STRUCTURES IN A CASE MERELY INVOLVING THE RATES ON SPECIFIC
COMMODITIES ONE TO THE OTHER.  IF RAIL COMPETITION TURNS OUT TO BE
ACTUALLY DETRIMENTAL TO THE SUCCESSFUL OPERATION OF APPELLANTS'
LINOLEUM BUSINESS, THE WAR-TIME LOAD ON THE RAILROADS MIGHT BECOME
RELEVANT, AND THE COMMISSION MIGHT HAVE TO DECIDE WHETHER THE ATYPICAL
CIRCUMSTANCES AT THIS TIME JUSTIFY COMPETITIVE DISCRIMINATORY RATES
WHICH MIGHT OTHERWISE BE UNREASONABLE. 

THAT THE COMMISSION IS AN EXPERT BODY TO WHICH CONGRESS HAS SEEN FIT
TO COMMIT THE REGULATION OF THE INTRICATE RELATIONSHIPS BETWEEN THE
VARIOUS MEANS OF NATIONAL TRANSPORTATION IS A WELL-WORN PHRASE WHICH
OUGHT NOT TO LOSE ITS SIGNIFICANCE IN PRACTICE WHEN THE ACTIONS OF THE
COMMISSION COME HERE FOR REVIEW.  WE SHOULD BE VERY RELUCTANT TO DEFINE
FOR THE COMMISSION THE OCCASIONS WHICH APPROPRIATELY DEMAND
INVESTIGATION OF GENERAL TRANSPORTATION PROBLEMS, AND MORE PARTICULARLY
WHEN A CONTEST OVER THE RATE ON A PARTICULAR COMMODITY INCLUDED IN A
NETWORK OF TARIFFS CALLS FOR SUCH A GENERAL INVESTIGATION.  SURELY IT
IS WITHIN THE SPECIAL COMPETENCE OF THE COMMISSION TO PUT ON A
DISCRIMINATING CARRIER THE DUTY OF JUSTIFYING BY PROOF HIS PLAIN
DISCRIMINATION AS TO A PARTICULAR RATE AND NOT PERMIT HIM TO COMPEL THE
COMMISSION BY A MERE ASSERTION TO EMBARK UPON A FAR-FLUNG INQUIRY. 
THERE ARE UNDOUBTEDLY OCCASIONS WHEN THE INTERSTATE COMMERCE COMMISSION
WILL UNDERTAKE SUCH AN INVESTIGATION IN THE PUBLIC INTEREST.  BUT IT
OUGHT NOT TO BE COMPELLED TO DO SO UPON THE OCCURRENCE, FROM AN
ADMINISTRATIVE POINT OF VIEW, OF A MORE OR LESS ACCIDENTAL FILING OF A
TARIFF REVISION.  WHEN THE CARRIER SEEKS TO SUPPLANT A LAWFUL RATE, AS
IS THE CASE HERE, THE BURDEN IS ON IT TO SUPPLY ALL THE ESSENTIAL
INFORMATION TO JUSTIFY THE PROPOSED NEW RATE.  SEC. 216(G), PART II OF
THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 316(G).  IF IT DOES NOT DO
SO, IT HAS FAILED TO SUSTAIN THE DUTY CAST UPON IT BY LAW, AND THE
COMMISSION IN SO FINDING HAS DULY EXERCISED ITS AUTHORITY.  THE
COMMISSION'S DISPOSITIONS OF MOLASSES FROM NEW ORLEANS, LA., TO PEORIA
AND PEKIN, ILL., 235 I.C.C. 985 AND PETROLEUM RAIL SHIPPERS' ASSN. V.
ALTON & SOUTHERN R., 243 I.C.C. 589, ARE ENTIRELY CONSISTENT, SO FAR AS
THAT IS RELEVANT, WITH ITS ORDER IN THIS CASE. 

FN1  "FIRST-CLASS" IS USED TO DESIGNATE THE RATES APPLIED TO A CLASS
OF COMMODITIES.  PERCENTAGES OF A CLASS RATE ARE USED AS RATES FOR
DESIGNATED COMMODITIES. 
..END :



MAHNICH V. SOUTHERN S.S. CO., 321 U.S. 96 


NO. 200.  ARGUED JANUARY 5, 1944.  - DECIDED JANUARY 31, 1944.  - 135
F.2D 602, REVERSED. 


1.  A FINDING OF SEAWORTHINESS BY A DISTRICT COURT SITTING IN
ADMIRALTY IS USUALLY A FINDING OF FACT, WHICH WILL NOT BE REVIEWED HERE
IF THE TWO COURTS BELOW CONCURRED IN IT.  BUT THE FINDING OF
SEAWORTHINESS IN THIS CASE IS REVIEWABLE HERE, SINCE BOTH COURTS BELOW,
HOLDING THEMSELVES BOUND BY A PREVIOUS DECISION OF THIS COURT, REACHED
THAT CONCLUSION AS A MATTER OF LAW.  P. 98. 

2.  A VESSEL AND ITS OWNER ARE LIABLE TO INDEMNIFY A SEAMAN FOR
INJURY CAUSED BY UNSEAWORTHINESS OF THE VESSEL OR ITS APPURTENANT
APPLIANCES AND EQUIPMENT.  P. 99. 

3.  A SEAMAN WHO WAS INJURED ON SHIPBOARD WHEN THE STAGING ON WHICH
HE WAS WORKING FELL AS A RESULT OF A BREAK IN DEFECTIVE ROPE WITH WHICH
IT WAS RIGGED, IS ENTITLED UNDER THE MARITIME LAW TO INDEMNITY FROM THE
SHIPOWNER FOR BREACH OF THE WARRANTY OF SEAWORTHINESS.  P. 103. 

THE OWNER IS NOT RELIEVED OF LIABILITY IN SUCH CASE BY THE FACT THAT
THE USE OF THE DEFECTIVE ROPE IN RIGGING THE STAGING WAS DUE TO THE
NEGLIGENCE OF THE SHIP'S OFFICERS OR OF FELLOW SERVANTS OF THE SEAMAN,
FOR THE OWNER'S DUTY TO FURNISH THE SEAMAN WITH SAFE APPLIANCES AND A
SAFE PLACE TO WORK IS NONDELEGABLE; NOR IS THE OWNER RELIEVED BY THE
FACT THAT THERE WAS SOUND ROPE ABOARD, WHICH COULD HAVE BEEN USED IN
RIGGING THE STAGING, FOR THE OWNER'S DUTY IS TO FURNISH THE SEAMAN WITH
SAFE APPLIANCES FOR USE IN HIS WORK WHEN AND WHERE IT IS TO BE DONE. 

4.  PLAMALS V. THE PINAR DEL RIO, 277 U.S. 151, TO THE EXTENT THAT IT
CONFLICTS HEREWITH, IS DISAPPROVED.  P. 105. 

MAHNICH V. SOUTHERN STEAMSHIP CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 320 U.S. 725, TO REVIEW THE AFFIRMANCE OF A DECREE, 45
F.SUPP.  839, DENYING RECOVERY IN AN ACTION IN ADMIRALTY FOR INDEMNITY
FOR INJURIES. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A SEAMAN ON RESPONDENT'S VESSEL, THE "WICHITA FALLS," WAS
INJURED, WHILE AT SEA, BY A FALL FROM A STAGING, WHICH GAVE WAY WHEN A
PIECE OF DEFECTIVE ROPE SUPPORTING IT PARTED.  THE ROPE WAS SUPPLIED BY
THE MATE WHEN THERE WAS AMPLE SOUND ROPE AVAILABLE FOR USE IN RIGGING
THE STAGING.  THE QUESTION IS WHETHER THE DEFECT IN THE STAGING WAS A
BREACH OF THE WARRANTY OF SEAWORTHINESS RENDERING THE OWNER LIABLE TO
INDEMNIFY THE SEAMAN FOR HIS INJURY. 

PETITIONER BROUGHT THIS SUIT IN PERSONAM IN ADMIRALTY IN THE DISTRICT
COURT FOR EASTERN PENNSYLVANIA, TO RECOVER INDEMNITY AND MAINTENANCE
AND CURE.  ON THE TRIAL THE EVIDENCE SHOWED THAT THE MATE ORDERED
PETITIONER TO PAINT THE BRIDGE AND TO STAND ON THE STAGING FOR THAT
PURPOSE.  THE STAGING CONSISTED OF A BOARD SUPPORTED AT BOTH ENDS BY
ROPE WHICH, IF SOUND, WAS SUFFICIENT IN STRENGTH TO SUSTAIN THE STAGE
AND ITS LOAD.  THE BOATSWAIN, BY DIRECTION OF THE MATE, HAD CUT THE
ROPE FOR THE STAGING FROM A COIL, WHICH HAD BEEN STORED FOR TWO YEARS
IN THE LYLE GUN BOX.  THE ROPE, INTENDED FOR USE WITH THE LYLE LIFE
SAVING APPARATUS, HAD NEVER BEEN USED.  THERE WAS TESTIMONY THAT IT HAD
BEEN EXAMINED AND TESTED BY THE BOATSWAIN AND THE MATE, AND THAT IT WAS
GENERALLY SOUND IN APPEARANCE.  AFTER THE ACCIDENT, EXAMINATION OF THE
ROPE AT THE POINT WHERE IT BROKE SHOWED THAT IT WAS SO ROTTEN AS TO BE
INADEQUATE TO SUPPORT THE STRAIN IMPOSED UPON IT. 

THE TRIAL JUDGE CONCLUDED FROM THE EVIDENCE THAT THERE WAS SOUND ROPE
ON BOARD AVAILABLE FOR RIGGING THE STAGING.  HE FOUND THAT THERE WAS NO
FAULT IN THE MANNER IN WHICH THE STAGE HAD BEEN RIGGED, BUT THAT THE
ROPE SELECTED BY THE MATE WAS DEFECTIVE AND THAT PETITIONER'S INJURY
WAS ATTRIBUTABLE TO THE NEGLIGENCE OF THE BOATSWAIN AND THE MATE IN
FAILING TO OBSERVE THE DEFECT.  FN1  HE HELD THAT THE PROCEEDING WAS
BROUGHT TOO LATE TO RECOVER FOR THE NEGLIGENCE UNDER THE JONES ACT, AND
THAT THE "WICHITA FALLS" WAS NOT UNSEAWORTHY BY REASON OF THE DEFECTIVE
ROPE USED IN RIGGING THE STAGING, CITING PLAMALS V. THE PINAR DEL RIO,
277 U.S. 151, 155.  HE ACCORDINGLY DENIED INDEMNITY TO PETITIONER, BUT
GAVE JUDGMENT IN HIS FAVOR FOR MAINTENANCE AND CURE. 

THE COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMED, 129 F.2D 857,
135 F.2D 602, BY A DIVIDED COURT, RESTING ITS DECISION ON THE STATEMENT
QUOTED FROM THE OPINION IN THE PINAR DEL RIO, SUPRA, 155, THAT "THE
RECORD DOES NOT SUPPORT THE SUGGESTION THAT THE 'PINAR DEL RIO' WAS
UNSEAWORTHY.  THE MATE SELECTED A BAD ROPE WHEN GOOD ONES WERE
AVAILABLE."  WE GRANTED CERTIORARI, 320 U.S. 725, UPON A PETITION WHICH
URGED THAT THE STATEMENT QUOTED FROM THE PINAR DEL RIO, SUPRA, DOES NOT
RULE THIS CASE, AND THAT THE DECISION BELOW IS INCONSISTENT WITH THE
DECISIONS IN THE OSCEOLA, 189 U.S. 158, AND IN SOCONY-VACUUM CO. V.
SMITH, 305 U.S. 424. 

THE SOLE ISSUE PRESENTED BY THE PETITION FOR CERTIORARI IS THAT OF
RESPONDENT'S LIABILITY TO INDEMNIFY PETITIONER FOR THE INJURY SUFFERED
BY REASON OF THE DEFECTIVE STAGING.  NO QUESTION IS RAISED WITH RESPECT
TO PETITIONER'S RIGHT TO RECOVER UNDER THE JONES ACT OR HIS RIGHT TO
THE AWARD OF MAINTENANCE AND CURE OR ITS ADEQUACY. 

A FINDING OF SEAWORTHINESS IS USUALLY A FINDING OF FACT.  LUCKENBACH
V. MCCAHAN SUGAR CO., 248 U.S. 139, 145; STEEL V. STATE LINE S.S. CO.,
L.R. 3 A.C. 72, 81-82, 90-91.  ORDINARILY WE DO NOT, IN ADMIRALTY, MORE
THAN IN OTHER CASES, REVIEW THE CONCURRENT FINDINGS OF FACT OF TWO
COURTS BELOW.  THE CARIB PRINCE, 170 U.S. 655, 658; THE WILDCROFT, 201
U.S. 378, 387; LUCKENBACH V. MCCAHAN SUGAR CO., SUPRA; PIEDMONT COAL
CO. V. SEABOARD FISHERIES CO., 254 U.S. 1, 13; JUST V. CHAMBERS, 312
U.S. 383, 385.  HERE, HOWEVER, BOTH COURTS BELOW, HOLDING THEMSELVES
BOUND BY THE PINAR DEL RIO, SUPRA, HAVE, ON THE FACTS FOUND, HELD AS A
MATTER OF LAW THAT THE STAGING WAS SEAWORTHY DESPITE ITS DEFECT.  THAT
CONCLUSION OF LAW IS REVIEWABLE HERE. 

UNTIL THE ENACTMENT OF THE JONES ACT, 41 STAT. 1007, 46 U.S.C. SEC.
688, THE MARITIME LAW AFFORDED NO REMEDY BY WAY OF INDEMNITY BEYOND
MAINTENANCE AND CURE, FOR THE INJURY TO A SEAMAN CAUSED BY THE MERE
NEGLIGENCE OF A SHIP'S OFFICER OR MEMBER OF THE CREW.  BUT THE
ADMIRALTY RULE THAT THE VESSEL AND OWNER ARE LIABLE TO INDEMNIFY A
SEAMAN FOR INJURY CAUSED BY UNSEAWORTHINESS OF THE VESSEL OR ITS
APPURTENANT APPLIANCES AND EQUIPMENT, HAS BEEN THE SETTLED LAW SINCE
THIS COURT'S RULING TO THAT EFFECT IN THE OSCEOLA, SUPRA, 175. 
CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372, 380-381; CARLISLE
PACKING CO. V. SANDANGER, 259 U.S. 255, 258-260; PACIFIC S.S. CO. V.
PETERSON, 278 U.S. 130, 134; CORTES V. BALTIMORE INSULAR LINE, 287 U.S.
367, 370-371; WARNER V. GOLTRA, 293 U.S. 155, 158; THE ARIZONA V.
ANELICH, 298 U.S. 110, 120 ET SEQ.; SOCONY-VACUUM CO. V. SMITH, SUPRA,
428-429; O'DONNELL V. GREAT LAKES CO., 318 U.S. 36, 40.  THE LATTER
RULE SEEMS TO HAVE BEEN DERIVED FROM THE SEAMAN'S PRIVILEGE TO ABANDON
A SHIP IMPROPERLY FITTED OUT, AND WAS GENERALLY APPLIED, BEFORE ITS
STATEMENT IN THE OSCEOLA, SUPRA, BY NUMEROUS DECISIONS OF THE LOWER
FEDERAL COURTS DURING THE LAST CENTURY.  SEE THE ARIZONA V. ANELICH,
SUPRA, 121, FOOTNOTE 2. 

THIS WAS A RECOGNIZED DEPARTURE FROM THE RULE OF THE ENGLISH LAW,
WHICH ALLOWED NO RECOVERY OTHER THAN MAINTENANCE AND CURE FOR INJURIES
CAUSED BY UNSEAWORTHINESS, COUCH V. STEEL, 3 EL. & BL. 402, UNTIL THE
ENACTMENT OF THE MERCHANT SHIPPING ACT OF 1876, 39 & 40 VICT., CHAP.
80, SEC. 5, REENACTED BY THE MERCHANT SHIPPING ACT OF 1894, 57 & 58
VICT., CHAP. 60, SEC. 458.  BY THAT STATUTE THERE IS ANNEXED TO EVERY
CONTRACT OF SERVICE BETWEEN THE OWNER OF A SHIP OR THE MASTER AND ANY
SEAMAN THEREOF, AN OBLIGATION THAT ALL REASONABLE MEANS BE USED TO
INSURE THE SEAWORTHINESS OF THE SHIP BEFORE AND DURING THE VOYAGE.  SEE
HEDLEY V. PINKNEY & SONS S.S. CO., (1894) A.C. 222. 

IN A NUMBER OF CASES IN THE FEDERAL COURTS, DECIDED BEFORE THE
OSCEOLA, SUPRA, THE RIGHT OF THE SEAMAN TO RECOVER FOR INJURIES CAUSED
BY UNSEAWORTHINESS SEEMS TO HAVE BEEN RESTED ON THE NEGLIGENT FAILURE,
USUALLY BY THE SEAMAN'S OFFICERS OR FELLOW SEAMEN, TO SUPPLY SEAWORTHY
APPLIANCES.  THE NODDLEBURN, 28 F. 855, AFF'D, 30 F. 142; THE NEPTUNO,
30 F. 925; THE FRANK AND WILLIE, 45 F. 494; THE JULIA FOWLER, 49 F.
277; WILLIAM JOHNSON & CO. V. JOHANSEN, 86 F. 886; AND SEE THE
COLUMBIA, 124 F. 745; THE LYNDHURST, 149 F. 900.  BUT LATER CASES IN
THIS AND OTHER FEDERAL COURTS HAVE FOLLOWED THE RULING OF THE OSCEOLA,
SUPRA, THAT THE EXERCISE OF DUE DILIGENCE DOES NOT RELIEVE THE OWNER OF
HIS OBLIGATION TO THE SEAMAN TO FURNISH ADEQUATE APPLIANCES.  FN2
CARLISLE PACKING CO. V. SANDANGER, SUPRA, 259-260; THE ARIZONA V.
ANELICH, SUPRA, 120 ET SEQ.; BEADLE V. SPENCER, 298 U.S. 124, 128-129;
SOCONY-VACUUM CO. V. SMITH, SUPRA, 428-429, 432; THE H. A. SCANDRETT,
87 F.2D 708, 710-711; CF. THE EDWIN I. MORRISON, 153 U.S. 199, 210. 

IF THE OWNER IS LIABLE FOR FURNISHING AN UNSEAWORTHY APPLIANCE, EVEN
WHEN HE IS NOT NEGLIGENT, A FORTIORI HIS OBLIGATION IS UNAFFECTED BY
THE FACT THAT THE NEGLIGENCE OF THE OFFICERS OF THE VESSEL CONTRIBUTED
TO ITS UNSEAWORTHINESS.  IT IS TRUE THAT BEFORE THE JONES ACT THE OWNER
WAS, IN OTHER RESPECTS, NOT RESPONSIBLE FOR INJURIES TO A SEAMAN CAUSED
BY THE NEGLIGENCE OF OFFICERS OR MEMBERS OF THE CREW.  BUT THIS IS NOT
SUFFICIENT TO INSULATE THE OWNER FROM LIABILITY FOR THEIR NEGLIGENT
FAILURE TO FURNISH SEAWORTHY APPLIANCES, SEE JUDGE ADDISON BROWN, IN
THE FRANK AND WILLIE, SUPRA, 495-497; CARLISLE PACKING CO. V.
SANDANGER, SUPRA, 259-260, MORE THAN THEIR NEGLIGENCE RELIEVES HIM FROM
HIS LIABILITY FOR MAINTENANCE AND CURE.  THE OSCEOLA, SUPRA, 175;
PACIFIC S.S. CO. V. PETERSON, SUPRA, 134; CALMAR S.S. CORP. V. TAYLOR,
303 U.S. 525, 527. 

IT REQUIRED THE HARTER ACT TO RELAX THE EXACTING OBLIGATION TO CARGO
OF THE OWNER'S WARRANTY OF SEAWORTHINESS OF SHIP AND TACKLE.  FN3  THAT
RELAXATION HAS NOT BEEN EXTENDED, EITHER BY STATUTE OR BY DECISION, TO
THE LIKE OBLIGATION OF THE OWNER TO THE SEAMAN.  THE DEFENSE OF THE
FELLOW SERVANT RULE TO SUITS IN ADMIRALTY FOR NEGLIGENCE, A DEFENSE
PRECLUDED BY THE JONES ACT, HAS NEVER AVOWEDLY BEEN DEEMED APPLICABLE
TO THE OWNER'S STRICTER OBLIGATION TO THE SEAMAN OF THE WARRANTY OF
SEAWORTHINESS. 

THE OSCEOLA, SUPRA, IN ANSWER TO CERTIFIED QUESTIONS, LAID DOWN AS
SEPARATELY NUMBERED AND INDEPENDENT PROPOSITIONS THE RULE OF THE
OWNER'S UNQUALIFIED OBLIGATION TO FURNISH SEAWORTHY APPLIANCES, AND THE
RULE THAT THE OWNER IS NOT LIABLE TO A SEAMAN FOR THE NEGLIGENCE OF HIS
FELLOW SERVANTS.  IT NOWHERE INTIMATED THAT THE OWNER IS RELIEVED FROM
LIABILITY FOR PROVIDING AN UNSEAWORTHY APPLIANCE, MERELY BECAUSE THE
UNSEAWORTHINESS WAS ATTRIBUTABLE TO THE NEGLIGENCE OF FELLOW SERVANTS
OF THE INJURED SEAMAN RATHER THAN TO THE NEGLIGENCE OF THE OWNER. 
INDEED, TO SUPPORT THE RULE OF ABSOLUTE LIABILITY, THE COURT, SEE THE
OSCEOLA, SUPRA, 173-175, RELIED ON CASES IN WHICH THE VESSEL OR ITS
OWNER HAD BEEN HELD LIABLE FOR INJURIES RESULTING FROM UNSEAWORTHINESS,
ALTHOUGH APPLICATION OF THE FELLOW SERVANT RULE WOULD HAVE BARRED
RECOVERY.  OF ONE, THE FRANK AND WILLIE, SUPRA, THE COURT, AFTER
POINTING OUT THAT THE SEAMAN WAS INJURED BY REASON OF THE NEGLIGENT
FAILURE OF THE MATE TO PROVIDE A SAFE PLACE IN WHICH TO WORK, SAID,
"THE QUESTION WAS REALLY ONE OF UNSEAWORTHINESS AND NOT OF
NEGLIGENCE." 

THE COURT CITED, DISCUSSED AND RELIED UPON THE NODDLEBURN, SUPRA,
OLSON V. FLAVEL, 34 F. 477, THE FRANK AND WILLIE, SUPRA, AND THE JULIA
FOWLER, SUPRA.  IN EACH THE SEAMAN WAS INJURED AS A RESULT OF HIS USE
OF UNSEAWORTHY APPLIANCES RENDERED SO BY THE NEGLIGENCE OF A FELLOW
SERVANT.  IN THE JULIA FOWLER, SUPRA, THE INJURY WAS CAUSED BY A FALL
FROM A BOATSWAIN'S CHAIR WHICH THE COURT FOUND, AS IN THIS CASE, WAS
RIGGED WITH DEFECTIVE ROPE BY REASON OF THE FAULT OF THE MATE.  THE
INAPPLICABILITY OF THE FELLOW SERVANT RULE TO THIS TYPE OF CASE WAS
RECOGNIZED EXPLICITLY IN THE NODDLEBURN, SUPRA, 858, AND IN THE FRANK
AND WILLIE, SUPRA, 495-497.  AND SUCH WAS OUR HOLDING IN CARLISLE
PACKING CO. V. SANDANGER, SUPRA, WHERE IT WAS SAID, AT P. 259, "WITHOUT
REGARD TO NEGLIGENCE THE VESSEL WAS UNSEAWORTHY."  SEE ALSO THE
DISCUSSION IN THE H.A. SCANDRETT, SUPRA, 710-711. 

IN THUS REFUSING TO LIMIT, BY APPLICATION OF THE FELLOW SERVANT RULE,
THE LIABILITY OF THE VESSEL AND OWNER FOR UNSEAWORTHINESS, THIS COURT
WAS BUT APPLYING THE FAMILIAR AND THEN WELL ESTABLISHED RULE OF NON
MARITIME TORTS, THAT THE EMPLOYER'S DUTY TO FURNISH THE EMPLOYEE WITH
SAFE APPLIANCES AND A SAFE PLACE TO WORK, IS NONDELEGABLE AND NOT
QUALIFIED BY THE FELLOW SERVANT RULE.  HOUGH V. RAILWAY CO., 100 U.S.
213, 216-220; NORTHERN PACIFIC R. CO. V. HERBERT, 116 U.S. 642, 647
648; BALTIMORE & OHIO R. CO. V. BAUGH, 149 U.S. 368, 386-388; UNION
PACIFIC RY. CO. V. DANIELS, 152 U.S. 684, 688-689.  IT WOULD BE AN
ANOMALY IF THE FELLOW SERVANT RULE, DISCREDITED BY THE JONES ACT AS A
DEFENSE IN SUITS FOR NEGLIGENCE, WERE TO BE RESUSCITATED AND EXTENDED
TO SUITS FOUNDED ON THE WARRANTY OF SEAWORTHINESS, SO AS TO LOWER THE
STANDARD OF THE OWNER'S DUTY TO FURNISH SAFE APPLIANCES BELOW THAT OF
THE LAND EMPLOYER. 

THE STAGING FROM WHICH PETITIONER FELL WAS AN APPLIANCE APPURTENANT
TO THE SHIP.  IT WAS UNSEAWORTHY IN THE SENSE THAT IT WAS INADEQUATE
FOR THE PURPOSE FOR WHICH IT WAS ORDINARILY USED, BECAUSE OF THE
DEFECTIVE ROPE WITH WHICH IT WAS RIGGED.  ITS INADEQUACY RENDERED IT
UNSEAWORTHY, WHETHER THE MATE'S FAILURE TO OBSERVE THE DEFECT WAS
NEGLIGENT OR UNAVOIDABLE.  HAD IT BEEN ADEQUATE, PETITIONER WOULD NOT
HAVE BEEN INJURED AND HIS INJURY WAS THE PROXIMATE AND IMMEDIATE
CONSEQUENCE OF THE UNSEAWORTHINESS.  SEE THE OSCEOLA, SUPRA, 174-175,
AND CASES CITED.  ANY NEGLIGENCE OF THE MATE IN SELECTING THE ROPE AND
ORDERING ITS USE AS A PART OF THE STAGING, OR OF THE BOATSWAIN IN USING
IT FOR THAT PURPOSE, COULD NOT RELIEVE RESPONDENT OF THE DUTY TO
FURNISH A SEAWORTHY STAGING.  WHETHER PETITIONER KNEW OF THE DEFECTIVE
CONDITION OF THE ROPE DOES NOT APPEAR, BUT IN ANY CASE THE SEAMAN, IN
THE PERFORMANCE OF HIS DUTIES, IS NOT DEEMED TO ASSUME THE RISK OF
UNSEAWORTHY APPLIANCES.  THE ARIZONA V. ANELICH, SUPRA, 123-124; BEADLE
V. SPENCER, SUPRA, 129-130; SOCONY-VACUUM CO. V. SMITH, SUPRA. 

NOR DOES THE FACT THAT THERE WAS SOUND ROPE ON BOARD, WHICH MIGHT
HAVE BEEN USED TO RIG A SAFE STAGING, AFFORD AN EXCUSE TO THE OWNER FOR
THE FAILURE TO PROVIDE A SAFE ONE.  WE HAVE OFTEN HAD OCCASION TO
EMPHASIZE THE CONDITIONS OF THE SEAMAN'S EMPLOYMENT, SEE SOCONY-VACUUM
CO. V. SMITH, SUPRA, 430-431 AND CASES CITED, WHICH HAVE BEEN DEEMED TO
MAKE HIM A WARD OF THE ADMIRALTY AND TO PLACE LARGE RESPONSIBILITY FOR
HIS SAFETY ON THE OWNER.  HE IS SUBJECT TO THE RIGOROUS DISCIPLINE OF
THE SEA, AND ALL THE CONDITIONS OF HIS SERVICE CONSTRAIN HIM TO ACCEPT,
WITHOUT CRITICAL EXAMINATION AND WITHOUT PROTEST, WORKING CONDITIONS
AND APPLIANCES AS COMMANDED BY HIS SUPERIOR OFFICERS.  THESE
CONDITIONS, WHICH HAVE GENERATED THE EXACTING REQUIREMENT THAT THE
VESSEL OR THE OWNER MUST PROVIDE THE SEAMAN WITH SEAWORTHY APPLIANCES
WITH WHICH TO DO HIS WORK, LIKEWISE REQUIRE THAT SAFE APPLIANCES BE
FURNISHED WHEN AND WHERE THE WORK IS TO BE DONE.  FOR, AS WAS SAID IN
THE OSCEOLA, SUPRA, 175, THE OWNER'S OBLIGATION IS "TO SUPPLY AND KEEP
IN ORDER THE PROPER APPLIANCES APPURTENANT TO THE SHIP."  IT IS NOT
ENOUGH THAT THE "WICHITA FALLS" HAD ON BOARD SOUND ROPE WHICH COULD
HAVE BEEN USED TO MAKE THE STAGING SEAWORTHY, IF IN FACT THE STAGING
WAS UNSAFE BECAUSE SOUND ROPE WAS NOT USED.  THE JULIA FOWLER, SUPRA;
THE NAVARINO, 7 F.2D 743, 746; CF. THE PORTLAND, 213 F. 699. 

RESPONDENT'S ARGUMENT THAT THE DEFECTIVE ROPE WAS A CONSUMABLE SUPPLY
OF THE VESSEL, NOT FALLING WITHIN THE REQUIREMENT THAT THE OWNER MUST
FURNISH SEAWORTHY EQUIPMENT APPURTENANT TO THE VESSEL, IS INAPPROPRIATE
HERE BECAUSE, AS WE HAVE SAID, IT WAS THE STAGE WHICH WAS UNSEAWORTHY,
BY REASON OF THE USE OF THE DEFECTIVE ROPE IN ITS CONSTRUCTION.  THE
STAGE WAS USED IN THE REPAIR OF THE SHIP, AND WAS AS INTIMATELY
ASSOCIATED WITH IT AND WITH THE SEAMAN'S EMPLOYMENT AS ARE THE GANGWAYS
OR OTHER APPLIANCES OR THE PASSAGEWAYS USED BY THE SEAMAN IN DOING HIS
WORK. 

MOREOVER IT WOULD NOT BE ENOUGH TO SAY THAT THIS CASE CONCERNS A
CONSUMABLE SUPPLY, FOR IN CARLISLE PACKING CO. V. SANDANGER, SUPRA, THE
OWNER WAS HELD LIABLE TO A SEAMAN FOR UNSEAWORTHINESS, WHERE A
CONSUMABLE SUPPLY OF THE SHIP WAS STORED IN SUCH FASHION AS TO RENDER
IT DANGEROUS TO THE SEAMAN WHO USED IT.  THERE GASOLINE HAD BEEN
NEGLIGENTLY PLACED IN A CAN MARKED "COAL OIL" AND THE SEAMAN WAS BURNED
BY AN EXPLOSION WHICH RESULTED WHEN HE ATTEMPTED TO BUILD A FIRE WITH
THE GASOLINE, WHICH HE HAD TAKEN OUT OF THE CAN THINKING IT TO BE COAL
OIL. 

THE STATEMENT FROM THE PINAR DEL RIO, SUPRA, RELIED UPON BY THE TWO
COURTS BELOW, COULD BE TAKEN TO SUPPORT THEIR DECISION, ONLY ON THE
ASSUMPTION EITHER THAT THE PRESENCE OF SOUND ROPE ON THE "WICHITA
FALLS" AFFORDED AN EXCUSE FOR THE FAILURE TO PROVIDE A SAFE STAGING, OR
THAT ANTECEDENT NEGLIGENCE OF THE MATE IN DIRECTING THE USE OF THE
DEFECTIVE ROPE RELIEVED THE OWNER FROM LIABILITY FOR FURNISHING THE
APPLIANCE THEREBY RENDERED UNSEAWORTHY.  BUT AS WE HAVE SEEN, NEITHER
ASSUMPTION IS TENABLE IN THE LIGHT OF OUR DECISIONS BEFORE AND SINCE
THE PINAR DEL RIO, SUPRA.  SO FAR AS THIS STATEMENT SUPPORTS THESE
ASSUMPTIONS, IT IS DISAPPROVED.  WE CANNOT FOLLOW IT, AND ALSO FOLLOW
THE OSCEOLA, SUPRA, THE CASES WHICH IT APPROVED AND CARLISLE PACKING
CO. V. SANDANGER, SUPRA.  WE PREFER TO FOLLOW THE LATTER AS THE MORE
CONSONANT WITH PRINCIPLE AND AUTHORITY.  REVERSED. 

FN1  THE DISSENTING JUDGE IN THE CIRCUIT COURT OF APPEALS THOUGHT
THAT THIS FINDING OF NEGLIGENCE ON THE PART OF THE SHIP'S OFFICERS WAS
ERRONEOUS.  SEE 135 F.2D 602, 605.  THERE WAS NO ATTACK ON THIS FINDING
HERE, AND WE HAVE NOT EXAMINED THE CORRECTNESS OF THE TRIAL JUDGE'S
CONCLUSION, FOR, AS WE WILL POINT OUT, THE QUESTION WHETHER THERE WAS
SUCH NEGLIGENCE DOES NOT CONTROL DECISION OF THE ISSUES OF THIS CASE. 

FN2  BY STATUTE THE OWNER'S SIMILAR OBLIGATION WITH RESPECT TO THE
CARRIAGE OF GOODS IS MERELY TO EXERCISE "DUE DILIGENCE TO MAKE THE  ...
VESSEL IN ALL RESPECTS SEAWORTHY."  HARTER ACT, SEC. 3, 27 STAT. 445,
46 U.S.C. SEC. 192.  SEE ALSO CARRIAGE OF GOODS BY SEA ACT, SEC. 4(1),
49 STAT. 1210, 46 U.S.C. SEC. 1304(1). 

FN3  SEE NOTE 2, SUPRA. 

MR. JUSTICE ROBERTS: 

I THINK THE JUDGMENT IS WRONG.  THE CASE DOES NOT PRESENT A SITUATION
CALLING FOR LIBERALIZING THE MARITIME LAW IN FAVOR OF SEAMEN BY
ABOLISHING THE DEFENSE OF A FELLOW SEAMAN'S NEGLIGENCE.  CONGRESS DID
THAT IN 1920(41 STAT. 1007).  BUT IT REQUIRED ACTIONS IN SUCH
SITUATIONS TO BE BROUGHT WITHIN TWO YEARS, WHICH IT SUBSEQUENTLY
EXTENDED TO THREE YEARS.  THE SOLE QUESTION IS WHETHER RECOVERY SHOULD
BE PERMITTED BEYOND THE TIME WHEN CONGRESS SAID ACTION MUST BE
INSTITUTED.  I SHOULD SAY NOTHING FURTHER ON THIS QUESTION SAVE THAT
THE METHOD OF REACHING THE DECISION SEEMS TO ME CONTRARY TO RIGHT
EXERCISE OF THE JUDICIAL FUNCTION. 

THE PETITIONER HAS UNDOUBTEDLY OBTAINED CARE AND CURE TO WHICH, AS A
SEAMAN, HE WAS ENTITLED IRRESPECTIVE OF FAULT ON THE PART OF OWNER OR
MASTER.  HE FAILED TIMELY TO AVAIL HIMSELF OF HIS RIGHT TO SUE UNDER
SEC. 33 OF THE JONES ACT.  IN AN ACTION UNDER THAT STATUTE THE DEFENSE
OF THE NEGLIGENCE OF A FELLOW SERVANT WOULD NOT HAVE BEEN OPEN TO THE
RESPONDENT.  IN AN EFFORT TO OBTAIN DAMAGES, HE BROUGHT THIS ACTION
UNDER THE GENERAL MARITIME LAW.  HIS RECOVERY VEL NON UNDER THE UNUSUAL
CIRCUMSTANCES CAN BE OF LITTLE IMPORTANCE TO OTHERS THAN HIMSELF AND
THE RESPONDENT.  BUT, IN ORDER TO GIVE HIM THE DEMANDED RELIEF, THE
COURT RESORTS TO NULLIFICATION OF AN EARLIER DECISION, PLAMALS V. PINAR
DEL RIO, 277 U.S. 151, INDISTINGUISHABLE IN FACT AND LAW, WHICH HAS
STOOD UNQUESTIONED FOR SIXTEEN YEARS, AND APPLIED PRINCIPLES SETTLED
YEARS BEFORE IN THE OSCEOLA, 189 U.S. 158. 

THE HISTORY OF PLAMALS V. PINAR DEL RIO IS IMPORTANT.  THE LIBELLANT,
A SEAMAN ON A BRITISH SHIP LYING IN UNITED STATES WATERS, WAS ORDERED
BY A MATE TO REPAIR A STACK.  A SLING WAS USED, FOR WHICH THE MATE
SELECTED A PIECE OF ROPE.  THE ROPE BROKE AND THE SEAMAN WAS INJURED. 
HE FILED A LIBEL IN REM AGAINST THE VESSEL.  THE OWNER GAVE BOND AND
RELEASED THE SHIP. 

THE LIBEL, AFTER RECITING THE FACTS, ALLEGED THAT THE INJURIES WERE
DUE "TO THE FAULT OR NEGLECT OF THE SAID STEAMSHIP OR THOSE IN CHARGE
OF HER IN THAT THE SAID ROPE WAS OLD, WORN AND NOT SUITABLE FOR USE." 
THE LIBEL FAILED TO REFER TO SEC. 33 OF THE JONES ACT, BUT, AT THE
TRIAL, THE LIBELLANT'S PROCTOR STATED THAT HE RELIED UPON IT.  THE
CLAIMANT IN ITS ANSWER ASSERTED THAT THE VESSEL WAS OF BRITISH REGISTRY
AND, AS THE ONLY REDRESS OPEN TO THE LIBELLANT WAS UNDER THE BRITISH
WORKMEN'S COMPENSATION LAW, THE ADMIRALTY COURT SHOULD DECLINE
JURISDICTION.  THE CLAIMANT AMENDED ITS ANSWER TO DENY LIABILITY ON THE
GROUND THAT THE SHIP WAS PROVIDED WITH PROPER TACKLE BUT, THROUGH THE
NEGLIGENCE OF AN OFFICER, BAD TACKLE WAS SELECTED. 

THE DISTRICT COURT HELD THAT THE BRITISH LAW,  - THE LAW OF THE FLAG,
- AFFORDED NO ACTION IN REM NOR ANY ACTION FOR INDEMNITY SINCE THERE
WAS AN AMPLE SUPPLY OF GOOD ROPE ON BOARD AND THE MATE CHOSE AN
INSUFFICIENT ROPE FOR USE. 

ON APPEAL THE CIRCUIT COURT OF APPEALS HELD THAT THE LIBELLANT'S
PLEADINGS WERE INADEQUATE BUT, AS NO POINT HAD BEEN MADE OF THEIR
INFIRMITY, WENT ON TO CONSIDER "WHETHER, ON THE FACTS PROVEN AND UNDER
ANY APPLICABLE LAW, LIBELLANT HAS A CASE."  FN1 IT SAID THE LIBELLANT
MUST MAKE OUT A CASE OF MARITIME TORT; THAT, UNDER THE LAW OF ENGLAND,
THERE COULD BE NO RECOVERY AND THAT IF THE APPLICABLE LAW WERE THE
MARITIME LAW OF THE UNITED STATES THE LIBELLANT COULD NOT RECOVER FOR
THE IMPROVIDENT OR NEGLIGENT ACT OF THE MATE, ADDING:  "IF THE VESSEL
HAD BEEN UNSUPPLIED WITH GOOD AND PROPER ROPE, A DIFFERENT QUESTION
WOULD ARISE." 

THAT COURT FURTHER HELD THAT, ALTHOUGH, UNDER THE JONES ACT,
LIBELLANT COULD HAVE SUED AT LAW OR FILED A LIBEL IN PERSONAM, THE
STATUTE GAVE NO RIGHT TO A LIBEL IN REM.  THE DECREE DISMISSING THE
LIBEL WAS, THEREFORE, AFFIRMED. 

PETITIONER SOUGHT REVIEW IN THIS COURT AND, IN HIS PETITION AND
BRIEFS, ASSERTED THE RIGHT TO MAINTAIN A LIBEL IN REM UNDER THE JONES
ACT BUT, IN THE ALTERNATIVE, INSISTED THAT, UNDER THE GENERAL MARITIME
LAW, INDEPENDENT OF THE JONES ACT, THE LIBELLANT WAS ENTITLED TO
RECOVER FOR THE FAILURE TO SUPPLY, AND KEEP IN ORDER, PROPER
APPLIANCES, PROPERLY RIGGED, AND FOR THE UNSEAWORTHINESS OF THE VESSEL
IN THIS RESPECT. 

IT WILL BE NOTED HOW CLOSELY THAT CASE PARALLELS THE INSTANT ONE.  IN
BOTH, THOUGH FOR DIFFERING REASONS, THE LIBELLANT WAS PRECLUDED FROM
RELYING ON THE JONES ACT WHICH WOULD HAVE AVOIDED ALL QUESTION OF A
FELLOW SERVANT'S NEGLIGENCE.  IN BOTH, THE LIBELLANT THEN SOUGHT TO
RESORT TO HIS CLAIM FOR INDEMNITY FOR A MARITIME TORT.  IN THE PINAR
DEL RIO CASE IT WAS HELD THAT HE HAD MADE NO CASE ON THE LATTER THEORY,
AND IN THE PRESENT CASE IT IS HELD THAT HE HAS MADE OUT SUCH A CASE. 
THIS COURT, IN THE EARLIER CASE, HELD TWO THINGS:  FIRST, THAT A LIBEL
IN REM CANNOT BE MAINTAINED UNDER THE JONES ACT, AND, SECOND, THAT, IF
THE CASE WERE TREATED AS THE CIRCUIT COURT OF APPEALS HAD TREATED IT,
AS ONE FOR RECOVERY OF INDEMNITY FOR A MARITIME TORT,  - THE RECORD
WOULD NOT SUPPORT THE CLAIM.  THE COURT SAID: 

"THE RECORD DOES NOT SUPPORT THE SUGGESTION THAT THE 'PINAR DEL RIO'
WAS UNSEAWORTHY.  THE MATE SELECTED A BAD ROPE WHEN GOOD ONES WERE
AVAILABLE. 

"WE MUST TREAT THE PROCEEDING AS ONE TO ENFORCE THE LIABILITY
PRESCRIBED BY SEC. 33.  IT WAS SO TREATED BY PETITIONER'S PROCTOR AT
THE ORIGINAL TRIAL; AND THE APPLICATION FOR CERTIORARI HERE SPOKE OF IT
AS BASED UPON THAT SECTION.  THE EVIDENCE WOULD NOT SUPPORT A RECOVERY
UPON ANY OTHER GROUND." 

THESE HOLDINGS WERE MADE IN ANSWER TO EXTENDED ARGUMENT IN THE
BRIEFS, THE PETITIONER ON THE ONE HAND CONTENDING THAT THE VESSEL
SHOULD BE TREATED AS AN AMERICAN VESSEL AND AS BEING UNSEAWORTHY,
RESPONDENT CONTENDING THAT, WHETHER BRITISH OR AMERICAN, SHE WAS NOT
UNSEAWORTHY UNDER THE LAW OF EITHER NATION AND THAT THE LIBELLANT'S
INJURIES WERE DUE TO THE NEGLIGENCE OF A FELLOW SERVANT.  WHAT THE
COURT SAID, THEREFORE, WAS CLEARLY RESPONSIVE TO THE CONTENTIONS OF THE
PARTIES.  THE PRESENT DECISION DOES NOT MERELY DISAPPROVE LANGUAGE USED
IN THE EARLIER CASE.  IT OVERRULES THE CASE AND ALTERS LONG-ESTABLISHED
LAW WITHOUT ADEQUATE REASON. 

THERE HAS BEEN SOME SUGGESTION THAT THE HOLDING IN THE PINAR DEL RIO
CASE TO WHICH I HAVE REFERRED CREPT INTO THE OPINION BY INADVERTENCE. 
BUT I CANNOT ASSUME ANY SUCH THING IN VIEW OF THE PROVERBIAL CARE WHICH
ALL THE JUSTICES EXERCISE TO PREVENT EXPRESSION OF OPINION ON QUESTIONS
NOT NECESSARY TO THE DECISION OF A CASE.  THE DECISION MUST BE TAKEN AT
FACE VALUE AS THE EXPRESSION OF THE VIEWS OF ALL THE MEMBERS OF THE
COURT. 

CASES NOW CITED IN THE OPINION OF THE COURT WERE CITED AND CONSIDERED
BY THE COURT IN THE PINAR DEL RIO CASE.  FN2  THE MOST IMPORTANT OF
THEM, AND ONE ON WHICH THE CIRCUIT COURT OF APPEALS RELIED IN THAT
CASE, WAS THE OSCEOLA, SUPRA.  FN3  THE INSTANT DECISION NOT ONLY
OVERRULES THE PINAR DEL RIO CASE BUT ASSERTS THAT IT IS INCONSISTENT
WITH THE HOLDINGS IN THE OSCEOLA.  IF THIS BE TRUE IT MUST BE BECAUSE
THE COURT HAS A DIFFERENT CONCEPTION OF THE WORD CONSEQUENCE THAN THAT
I HAVE. 

IN THE OSCEOLA THIS COURT, AFTER THE FULLEST CONSIDERATION,
RECAPITULATED THE ADMIRALTY LAW RESPECTING THE RIGHTS OF INJURED
SEAMEN, INTER ALIA, AS FOLLOWS (P. 175): 

"THAT THE VESSEL AND HER OWNER ARE, BOTH BY ENGLISH AND AMERICAN LAW,
LIABLE TO AN INDEMNITY FOR INJURIES RECEIVED BY SEAMEN IN CONSEQUENCE
OF THE UNSEAWORTHINESS OF THE SHIP, OR A FAILURE TO SUPPLY AND KEEP IN
ORDER THE PROPER APPLIANCES APPURTENANT TO THE SHIP.  ...  " 

"THAT ALL THE MEMBERS OF THE CREW, EXCEPT PERHAPS THE MASTER, ARE, AS
BETWEEN THEMSELVES, FELLOW SERVANTS, AND HENCE SEAMEN CANNOT RECOVER
FOR INJURIES SUSTAINED THROUGH THE NEGLIGENCE OF ANOTHER MEMBER OF THE
CREW BEYOND THE EXPENSE OF THEIR MAINTENANCE AND CURE." 

UNSEAWORTHINESS IN THE ABSTRACT DOES NOT AFFORD A CAUSE OF ACTION. 
AN INJURY MUST BE "IN CONSEQUENCE" OF THE UNSEAWORTHINESS,  - MUST BE
CONNECTED WITH AND RESULT FROM IT.  AND "UNSEAWORTHINESS" COVERS A
VARIETY OF SITUATIONS VARIOUSLY AFFECTING THE WORK AND RISKS OF
SEAMEN.  UNSEAWORTHINESS OF THE KIND ON WHICH THE COURT BASES ITS
OPINION IS VERY DIFFERENT FROM THAT DUE TO A FAULTY MECHANISM WHICH IS
AN INHERENT RISK TO LIFE AND LIMB.  IF THE DOCTRINE NOW ANNOUNCED IS
RIGHT, A VESSEL SUPPLIED WITH THE NEWEST CHARTS WOULD BE UNSEAWORTHY IF
THE OWNER FAILED TO REMOVE OLD CHARTS FROM THE PILOT HOUSE; IT WOULD
MAKE THE OWNER AN INSURER THAT, NO MATTER HOW MANY ADEQUATE FACILITIES
WERE AT HAND, NO INSUFFICIENT ONE WAS ANYWHERE ON THE SHIP.  HERE THE
SO-CALLED UNSEAWORTHINESS DID NOT CONSIST IN WANT OF ADEQUATE ROPES FOR
THE SEAMAN'S NEED.  HIS INJURY WAS DUE ENTIRELY TO THE NEGLIGENT
SELECTION BY THE MATE OF A PIECE OF BAD ROPE WHEN AMPLE GOOD ROPE WAS
AT HAND.  THE DISTRICT COURT FOUND THAT THE MATE WAS NEGLIGENT, THE
CIRCUIT COURT OF APPEALS ACCEPTED THE FINDING, AND THE DISPOSITION OF
THE CASE IN THIS COURT IS ON THE ASSUMPTION OF THE CORRECTNESS OF THIS
FINDING. 

THE QUESTION, THEREFORE, IS WHETHER THE SHIP IS LIABLE FOR THE MATE'S
NEGLIGENT CHOICE OF A DEFECTIVE PIECE OF ROPE WHEN THERE WAS PLENTY OF
GOOD ROPE ABOARD.  UNDER THE PRINCIPLES ANNOUNCED IN THE OSCEOLA,
RECOVERY IN ADMIRALTY FOR A MARITIME TORT IS BARRED BY THE MATE'S
NEGLIGENCE.  IT WAS TO AVOID THE INTERPOSITION OF SUCH A DEFENSE OF A
FELLOW SERVANT'S ACT THAT THE JONES ACT MADE THE FEDERAL EMPLOYERS'
LIABILITY ACT APPLICABLE TO THE CLAIMS OF INJURED SEAMEN. 

THE COURT PROFESSES TO HAVE TO CHOOSE BETWEEN THE DOCTRINE IT READS
INTO THE DECISION IN THE OSCEOLA CASE AND THE RULING IN PINAR DEL RIO. 
BUT FURTHER IT ASSERTS THAT PINAR DEL RIO IS IN CONFLICT WITH CARLISLE
PACKING CO. V. SANDANGER, 259 U.S. 255, AN OPINION WRITTEN BY THE SAME
JUSTICE WHO WROTE THE OPINION IN THE PINAR DEL RIO CASE.  THE CITED
AUTHORITY, AS I READ IT, CLEARLY RULED THAT IN ORDER FOR A SEAMAN TO
RECOVER FOR AN INJURY WHERE THE SHIP IS UNSEAWORTHY THE UNSEAWORTHINESS
MUST BE THE DIRECT CAUSE OF HIS INJURY. 

THAT WAS AN ACTION BROUGHT IN A STATE COURT BY AN INJURED SEAMAN
AGAINST THE OWNER OF A MOTOR BOAT.  WHEN THE BOAT LEFT ON HER VOYAGE A
CAN INTENDED FOR THE USE OF THE CREW, SUPPOSED TO CONTAIN COAL OIL, AND
SO LABELED, HAD BEEN FILLED WITH GASOLINE AND THE SEAMAN, WITHOUT
NOTICE OF THIS FACT, ATTEMPTED TO USE THE CONTENTS AND WAS BURNED.  THE
SUPPLY OF LIFE PRESERVERS WAS INSUFFICIENT AND HIS INJURIES WERE
AGGRAVATED BY HIS HAVING TO SEARCH FOR ONE BEFORE HE COULD JUMP
OVERBOARD AND EXTINGUISH THE FLAMES CONSUMING HIS CLOTHING.  A VERDICT
AND JUDGMENT FOR THE SEAMAN WAS SUSTAINED.  THIS COURT FOUND THAT
ERRONEOUS INSTRUCTIONS HAD BEEN GIVEN THE JURY BUT HELD THE ERROR
HARMLESS SINCE THE RECORD SHOWED THAT, WITHOUT REGARD TO THE OWNER'S
NEGLIGENCE, THE VESSEL WAS UNSEAWORTHY WHEN SHE LEFT THE DOCK, AND THE
COURT HELD (P. 259):  "  ...  IF THUS UNSEAWORTHY AND ONE OF THE CREW
RECEIVED DAMAGE AS THE DIRECT RESULT THEREOF, HE WAS ENTITLED TO
RECOVER COMPENSATORY DAMAGES."  THE COURT CITED, AMONGST OTHER CASES,
THE OSCEOLA.    I AM AT A LOSS TO UNDERSTAND THE CITATION OF THIS CASE
AS AUTHORITY FOR THE PRESENT DECISION.  THE REASONING OF THE COURT'S
OPINION SEEMS TO BE THIS:  IN THE CARLISLE PACKING CO. CASE RECOVERY
WAS PERMITTED BECAUSE THE INJURY WAS THE DIRECT RESULT OF
UNSEAWORTHINESS.  THAT DECISION, THEREFORE, REQUIRES THAT THE OWNER BE
HELD LIABLE IN THE INSTANT CASE ALTHOUGH THE SEAMAN'S INJURY WAS NOT
THE DIRECT RESULT OF UNSEAWORTHINESS, BUT OF THE MATE'S NEGLIGENCE.  IT
MUST BE UPON THE BASIS OF SUCH REASONING THAT THE PINAR DEL RIO CASE IS
OVERRULED AND THE JUDGMENT BELOW REVERSED. 

THERE IS SOME SUGGESTION THAT THE PINAR DEL RIO CASE WAS OVERRULED BY
SOCONY-VACUUM OIL CO. V. SMITH, 305 U.S. 424.  IT NEED ONLY BE SAID
THAT THE PINAR DEL RIO CASE WAS NOT CITED IN THE BRIEFS OF COUNSEL IN
THE SOCONY CASE NOR REFERRED TO IN THE OPINION AND THAT IN FACT THE
SOCONY DECISION INVOLVED AND PURPORTED TO DEAL ONLY WITH THE GENERAL
DOCTRINE OF ASSUMPTION OF RISK AND NOT WITH THE DEFENSE OF FELLOW
SERVANT'S NEGLIGENCE.  THAT THE DEFENSES ARE NOT THE SAME IS MADE PLAIN
BY THE FACT THAT IT HAS ALWAYS BEEN HELD THAT A FELLOW SERVANT'S
NEGLIGENCE IS NO DEFENSE IN ACTIONS BROUGHT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT,  FN4  WHEREAS ASSUMPTION OF OTHER RISKS WAS A
DEFENSE  FN5  UNTIL CONGRESS RECENTLY EXPLICITLY ACTED TO ABOLISH IT AS
SUCH.  FN6 

INDEED, IF IN THE SOCONY CASE, THE SUIT HAD INVOLVED A FELLOW
SERVANT'S NEGLIGENCE INSTEAD OF THE SEAMAN'S ASSUMPTION OF THE RISK
INVOLVED IN THE USE OF AN UNSAFE APPLIANCE SUPPLIED BY THE VESSEL, THE
CASE WOULD HAVE BEEN SO PLAINLY RULED BY EARLIER DECISIONS  FN7  THAT
IT WOULD HAVE MERITED NO CONSIDERATION, MUCH LESS AN OPINION, BY THIS
COURT. 

THE STATEMENT IN THE OPINION THAT THE DEFENSE OF A FELLOW SERVANT'S
NEGLIGENCE HAD NEVER BEEN DEEMED APPLICABLE TO THE OWNER'S OBLIGATION
TO THE SEAMAN UNDER THE WARRANTY OF SEAWORTHINESS IGNORES THE POINT
THAT IF THE SEAMAN IS TO RECOVER THE UNSEAWORTHINESS MUST, UNDER THE
AUTHORITIES CITED, BE THE DIRECT CAUSE OF THE INJURY.  IF IT IS NOT,
BUT A FELLOW SERVANT'S NEGLIGENCE IS THE CAUSE, THE SEAMAN COULD NOT
RECOVER,  FN8  UNTIL THE LAW WAS ALTERED BY THE JONES ACT. 

THE EVIL RESULTING FROM OVERRULING EARLIER CONSIDERED DECISIONS MUST
BE EVIDENT.  IN THE PRESENT CASE, THE COURT BELOW NATURALLY FELT BOUND
TO FOLLOW AND APPLY THE LAW AS CLEARLY ANNOUNCED BY THIS COURT.  IF
LITIGANTS AND LOWER FEDERAL COURTS ARE NOT TO DO SO, THE LAW BECOMES
NOT A CHART TO GOVERN CONDUCT BUT A GAME OF CHANCE; INSTEAD OF SETTLING
RIGHTS AND LIABILITIES IT UNSETTLES THEM.  COUNSEL AND PARTIES WILL
BRING AND PROSECUTE ACTIONS IN THE TEETH OF THE DECISIONS THAT SUCH
ACTIONS ARE NOT MAINTAINABLE ON THE NOT IMPROBABLE CHANCE THAT THE
ASSERTED RULE WILL BE THROWN OVERBOARD.  DEFENDANTS WILL NOT KNOW
WHETHER TO LITIGATE OR TO SETTLE FOR THEY WILL HAVE NO ASSURANCE THAT A
DECLARED RULE WILL BE FOLLOWED.  BUT THE MORE DEPLORABLE CONSEQUENCE
WILL INEVITABLY BE THAT THE ADMINISTRATION OF JUSTICE WILL FALL INTO
DISREPUTE.  RESPECT FOR TRIBUNALS MUST FALL WHEN THE BAR AND THE PUBLIC
COME TO UNDERSTAND THAT NOTHING THAT HAS BEEN SAID IN PRIOR
ADJUDICATION HAS FORCE IN A CURRENT CONTROVERSY. 

OF COURSE THE LAW MAY GROW TO MEET CHANGING CONDITIONS.  I DO NOT
ADVOCATE SLAVISH ADHERENCE TO AUTHORITY WHERE NEW CONDITIONS REQUIRE
NEW RULES OF CONDUCT.  BUT THIS IS NOT SUCH A CASE.  THE TENDENCY TO
DISREGARD PRECEDENTS IN THE DECISION OF CASES LIKE THE PRESENT HAS
BECOME SO STRONG IN THIS COURT OF LATE AS, IN MY VIEW, TO SHAKE
CONFIDENCE IN THE CONSISTENCY OF DECISION AND LEAVE THE COURTS BELOW ON
AN UNCHARTED SEA OF DOUBT AND DIFFICULTY WITHOUT ANY CONFIDENCE THAT
WHAT WAS SAID YESTERDAY WILL HOLD GOOD TOMORROW, UNLESS INDEED A MODERN
INSTANCE GROWS INTO A CUSTOM OF MEMBERS OF THIS COURT TO MAKE PUBLIC
ANNOUNCEMENT OF A CHANGE OF VIEWS AND TO INDICATE THAT THEY WILL CHANGE
THEIR VOTES ON THE SAME QUESTION WHEN ANOTHER CASE COMES BEFORE THE
COURT.  FN9  THIS MIGHT, TO SOME EXTENT, OBVIATE THE PREDICAMENT IN
WHICH THE LOWER COURTS, THE BAR, AND THE PUBLIC FIND THEMSELVES. 

FN1  16 F.2D 984, 985. 

FN2  THE JULIA FOWLER, 49 F. 277; THE NODDLEBURN, 28 F. 855; THE
OSCEOLA, 189 U.S. 158; THE NAVARINO, 7 F.2D 743.  THE PORTLAND, 213 F.
699, NOT CITED, WAS, HOWEVER, DECIDED PRIOR TO THIS COURT'S DECISION IN
THE PINAR DEL RIO CASE. 

FN3  THE OSCEOLA HAS LONG BEEN RECOGNIZED AS A LEADING CASE.  IT HAS
BEEN CITED FOR THE PROPOSITIONS IT LAID DOWN AT LEAST EIGHTEEN TIMES BY
THIS COURT, AND NEARLY TWO HUNDRED TIMES BY LOWER FEDERAL COURTS. 

FN4  ILLINOIS CENTRAL R. CO. V. SKAGGS, 240 U.S. 66. 

FN5  SEABOARD AIR LINE V. HORTON, 233 U.S. 492. 

FN6  ACT OF AUG. 11, 1939, 53 STAT. 1404. 

FN7  JAMISON V. ENCARNACION, 281 U.S. 635; URAVIC V. JARKA CO., 282
U.S. 234. 

FN8  CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372; THE ROSALIE
MAHONY, 218 F. 695; IN RE TONAWANDA IRON & STEEL CO., 234 F. 198; PAYNE
V. JACKSONVILLE FORWARDING CO., 280 F. 150; THE DAISY, 282 F. 261; WOOD
V. DAVIS, 290 F. 1; HAMMOND LUMBER CO. V. SANDIN, 17 F.2D 760;
BENEDICT, ADMIRALTY, 6 ED., VOL. 1, P. 256. 

FN9  SEE MINERSVILLE SCHOOL DISTRICT V. GOBITIS, 310 U.S. 586; JONES
V. OPELIKA, 316 U.S. 584, 623; BARNETTE V. WEST VIRGINIA STATE BOARD OF
EDUCATION, 47 F.SUPP.  251, 252-3; WEST VIRGINIA STATE BOARD OF
EDUCATION V. BARNETTE, 319 U.S. 624. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 
..END :





















EX PARTE HAWK, 321 U.S. 114 


NO. - .  DECIDED JANUARY 31, 1944.  - APPLICATION DENIED. 


1.  SINCE IT DOES NOT APPEAR THAT THE APPLICANT FOR HABEAS CORPUS,
CONFINED UNDER SENTENCE OF A STATE COURT, HAS EXHAUSTED HIS REMEDIES
UNDER THE STATE LAW, THE APPLICATION IS DENIED WITHOUT PREJUDICE.  P.
118. 

2.  WHERE RESORT TO STATE COURT REMEDIES HAS FAILED TO AFFORD TO A
PETITIONER FOR HABEAS CORPUS A FULL AND FAIR ADJUDICATION OF THE
FEDERAL QUESTIONS RAISED, EITHER BECAUSE THE STATE AFFORDS NO REMEDY,
OR BECAUSE IN THE PARTICULAR CASE THE REMEDY AFFORDED PROVES IN
PRACTICE UNAVAILABLE OR SERIOUSLY INADEQUATE, A FEDERAL COURT SHOULD
ENTERTAIN THE PETITION; BUT IN SUCH CASE THE PETITIONER SHOULD PROCEED
IN THE FEDERAL DISTRICT COURT BEFORE RESORTING TO THIS COURT.  P. 118. 

3.  THE STATEMENT OFTEN MADE THAT FEDERAL COURTS WILL INTERFERE WITH
THE ADMINISTRATION OF JUSTICE IN THE STATE COURTS ONLY "IN RARE CASES
WHERE EXCEPTIONAL CIRCUMSTANCES OF PECULIAR URGENCY ARE SHOWN TO EXIST"
IS INAPPLICABLE WHERE THE PETITIONER FOR HABEAS CORPUS HAS EXHAUSTED
HIS STATE REMEDIES AND MAKES A SUBSTANTIAL SHOWING OF DENIAL OF FEDERAL
RIGHT.  P. 117. 

EX PARTE HAWK. 

MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS. 

PER CURIAM. 

THIS CASE COMES HERE ON PETITIONER'S APPLICATION FOR LEAVE TO FILE IN
THIS COURT HIS PETITION FOR WRIT OF HABEAS CORPUS.  PETITIONER IS
CONFINED IN THE NEBRASKA STATE PENITENTIARY UNDER SENTENCE FOR MURDER
IMPOSED BY THE NEBRASKA DISTRICT COURT. 

HIS PRESENT PROCEEDING HAS BEEN PREFACED BY SEVERAL EARLIER
APPLICATIONS TO BOTH STATE AND FEDERAL COURTS.  HIS PETITION FOR HABEAS
CORPUS WAS DENIED WITHOUT A HEARING BY THE NEBRASKA DISTRICT COURT
WHOSE DECISION WAS AFFIRMED BY THE NEBRASKA SUPREME COURT, HAWK V.
O'GRADY, 137 NEB. 639, 290 N.W. 911.  THIS COURT DENIED CERTIORARI, 311
U.S. 645.  PETITIONER THEN FILED IN THE UNITED STATES DISTRICT COURT
FOR NEBRASKA A PETITION FOR HABEAS CORPUS, ALLEGING MATTERS NOT
PREVIOUSLY BROUGHT TO THE ATTENTION OF THE STATE COURTS.  THIS
APPLICATION WAS DENIED WITHOUT A HEARING, AND THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED ON THE GROUND THAT PETITIONER
HAD NOT EXHAUSTED HIS STATE REMEDIES, HAWK V. OLSON, 130 F.2D 910.  WE
DENIED CERTIORARI.  317 U.S. 697.  PETITIONER THEN URGED HIS PRESENT
CONTENTIONS UPON THE NEBRASKA SUPREME COURT IN A PETITION FOR WRIT OF
HABEAS CORPUS WHICH THAT COURT DENIED WITHOUT OPINION.  WE DENIED HIS
PETITION FOR HABEAS CORPUS UPON LIKE ALLEGATIONS BUT WITHOUT PREJUDICE
TO PRESENTATION OF THE MATTERS ALLEGED TO THE UNITED STATES DISTRICT
COURT, EX PARTE HAWK, 318 U.S. 746. 

PETITIONER ACCORDINGLY RENEWED HIS PETITION FOR WRIT OF HABEAS CORPUS
TO THE UNITED STATES DISTRICT COURT FOR NEBRASKA AND FILED A LIKE
PETITION WITH THE SENIOR CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT; BOTH
PETITIONS HAVE BEEN DENIED, AND LEAVE TO APPEAL TO THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT HAS BEEN DENIED BY THE SENIOR CIRCUIT
JUDGE OF THAT CIRCUIT.  PETITIONER THEREUPON FILED THE PRESENT
APPLICATION IN THIS COURT. 

IN THE APPLICATION NOW BEFORE US, AND IN THOSE FILED WITH THE UNITED
STATES DISTRICT COURT AND THE SENIOR CIRCUIT JUDGE OF THE EIGHTH
CIRCUIT, PETITIONER ALLEGES, AMONG OTHER THINGS, THAT THE STATE COURT
FORCED HIM INTO TRIAL FOR A CAPITAL OFFENSE, NEB. COMP. STAT. SEC. 28
401, WITH SUCH EXPEDITION AS TO DEPRIVE HIM OF THE EFFECTIVE ASSISTANCE
OF COUNSEL, GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, POWELL V. ALABAMA, 287 U.S. 45; SEE SMITH V. O'GRADY, 312
U.S. 329; COMPARE BETTS V. BRADY, 316 U.S. 455, AND THAT HIS CONVICTION
WAS BASED IN PART ON THE INTRODUCTION AT THE TRIAL OF EVIDENCE KNOWN BY
THE PROSECUTION TO BE PERJURED, MOONEY V. HOLOHAN, 294 U.S. 103. 

FROM OUR EXAMINATION OF THE PAPERS PRESENTED TO US WE CANNOT SAY THAT
HE IS NOT ENTITLED TO A HEARING ON THESE CONTENTIONS, WALKER V.
JOHNSTON, 312 U.S. 275, 284-7; HOLIDAY V. JOHNSTON, 313 U.S. 342, 350;
WALEY V. JOHNSTON, 316 U.S. 101, 104-5; COCHRAN V. KANSAS, 316 U.S.
255, 258.  BUT, AS WAS POINTED OUT BY THE DISTRICT COURT AND CIRCUIT
JUDGE, PETITIONER HAS NOT YET SHOWN THAT HE HAS EXHAUSTED THE REMEDIES
AVAILABLE TO HIM IN THE STATE COURTS, AND HE IS THEREFORE NOT AT THIS
TIME ENTITLED TO RELIEF IN A FEDERAL COURT OR BY A FEDERAL JUDGE. 

SO FAR AS APPEARS, PETITIONER'S PRESENT CONTENTIONS HAVE BEEN
PRESENTED TO THE STATE COURTS ONLY IN AN APPLICATION FOR HABEAS CORPUS
FILED IN THE NEBRASKA SUPREME COURT, WHICH IT DENIED WITHOUT OPINION. 
FROM OTHER OPINIONS OF THAT COURT IT APPEARS THAT IT DOES NOT USUALLY
ENTERTAIN ORIGINAL PETITIONS FOR HABEAS CORPUS, BUT REMITS THE
PETITIONER TO AN APPLICATION TO THE APPROPRIATE DISTRICT COURT OF THE
STATE, FROM WHOSE DECISION AN APPEAL LIES TO THE STATE SUPREME COURT,
WILLIAMS V. OLSON, 143 NEB. 115, 8 N.W.2D 830, 831; SEE IN RE WHITE, 33
NEB. 812, 814-15, 51 N.W. 287.  FROM THAT COURT THE CAUSE MAY BE
BROUGHT HERE FOR REVIEW IF AN APPROPRIATE FEDERAL QUESTION IS PROPERLY
PRESENTED. 

OF THIS REMEDY IN THE STATE COURT PETITIONER HAS NOT AVAILED
HIMSELF.  MOREOVER, NEBRASKA RECOGNIZES AND EMPLOYS THE COMMON LAW WRIT
OF ERROR CORAM NOBIS WHICH, IN CIRCUMSTANCES IN WHICH HABEAS CORPUS
WILL NOT LIE, MAY BE ISSUED BY THE TRIAL COURT AS A REMEDY FOR
INFRINGEMENT OF CONSTITUTIONAL RIGHT OF THE DEFENDANT IN THE COURSE OF
THE TRIAL, CARLSEN V. STATE, 129 NEB. 84, 94-8, 261 N.W. 339.  UNTIL
THAT REMEDY HAS BEEN SOUGHT WITHOUT AVAIL WE CANNOT SAY THAT
PETITIONER'S STATE REMEDIES HAVE BEEN EXHAUSTED. 

ORDINARILY AN APPLICATION FOR HABEAS CORPUS BY ONE DETAINED UNDER A
STATE COURT JUDGMENT OF CONVICTION FOR CRIME WILL BE ENTERTAINED BY A
FEDERAL COURT ONLY AFTER ALL STATE REMEDIES AVAILABLE, INCLUDING ALL
APPELLATE REMEDIES IN THE STATE COURTS AND IN THIS COURT BY APPEAL OR
WRIT OF CERTIORARI, HAVE BEEN EXHAUSTED.  TINSLEY V. ANDERSON, 171 U.S.
101, 104-5; URQUHART V. BROWN, 205 U.S. 179; UNITED STATES EX REL.
KENNEDY V. TYLER, 269 U.S. 13; MOONEY V. HOLOHAN, SUPRA, 115; EX PARTE
ABERNATHY, 320 U.S. 219.  AND WHERE THOSE REMEDIES HAVE BEEN EXHAUSTED
THIS COURT WILL NOT ORDINARILY ENTERTAIN AN APPLICATION FOR THE WRIT
BEFORE IT HAS BEEN SOUGHT AND DENIED IN A DISTRICT COURT OR DENIED BY A
CIRCUIT OR DISTRICT JUDGE.  EX PARTE HAWK, SUPRA; EX PARTE ABERNATHY,
SUPRA. 

THE DENIAL OF RELIEF TO PETITIONER BY THE FEDERAL COURTS AND JUDGES
IN THIS, AS IN A NUMBER OF OTHER CASES, APPEARS TO HAVE BEEN ON THE
GROUND THAT IT IS A PRINCIPLE CONTROLLING ALL HABEAS CORPUS PETITIONS
TO THE FEDERAL COURTS, THAT THOSE COURTS WILL INTERFERE WITH THE
ADMINISTRATION OF JUSTICE IN THE STATE COURTS ONLY "IN RARE CASES WHERE
EXCEPTIONAL CIRCUMSTANCES OF PECULIAR URGENCY ARE SHOWN TO EXIST."  SEE
IN RE ANDERSON, 117 F.2D 939, 940; IN RE MILLER, 126 F.2D 826, 827;
KELLY V. RAGEN, 129 F.2D 811, 814-15; HAWK V. OLSON, SUPRA, 911-13;
MARSINO V. HOGSETT, 37 F.2D 409, 414; UNITED STATES EX REL. FOLEY V.
RAGEN, 52 F.SUPP.  265, 269-270; CF. UNITED STATES EX REL. MURPHY V.
MURPHY, 108 F.2D 861, 862.  TO THIS, SOME COURTS HAVE ADDED THE
INTIMATION THAT WHEN THE WRIT IS SOUGHT BY ONE HELD UNDER A STATE
CONVICTION THE ONLY REMEDY ORDINARILY TO BE HAD IN A FEDERAL COURT IS
BY WAY OF APPLICATION TO THIS COURT.  EX PARTE JEFFERSON, 106 F.2D 471,
472; KRAMER V. NEVADA, 122 F.2D 417, 419; IN RE MILLER, SUPRA; HAWK V.
OLSON, SUPRA, 913; CF. KELLY V. RAGEN, SUPRA, 814. 

THE STATEMENT THAT THE WRIT IS AVAILABLE IN THE FEDERAL COURTS ONLY
"IN RARE CASES" PRESENTING "EXCEPTIONAL CIRCUMSTANCES OF PECULIAR
URGENCY," OFTEN QUOTED FROM THE OPINION OF THIS COURT IN UNITED STATES
EX REL. KENNEDY V. TYLER, SUPRA, 17, WAS MADE IN A CASE IN WHICH THE
PETITIONER HAD NOT EXHAUSTED HIS STATE REMEDIES AND IS INAPPLICABLE TO
ONE IN WHICH THE PETITIONER HAS EXHAUSTED HIS STATE REMEDIES, AND IN
WHICH HE MAKES A SUBSTANTIAL SHOWING OF A DENIAL OF FEDERAL RIGHT. 

WHERE THE STATE COURTS HAVE CONSIDERED AND ADJUDICATED THE MERITS OF
HIS CONTENTIONS, AND THIS COURT HAS EITHER REVIEWED OR DECLINED TO
REVIEW THE STATE COURT'S DECISION, A FEDERAL COURT WILL NOT ORDINARILY
RE-EXAMINE UPON WRIT OF HABEAS CORPUS THE QUESTIONS THUS ADJUDICATED. 
SALINGER V. LOISEL, 265 U.S. 224, 230-32.  BUT WHERE RESORT TO STATE
COURT REMEDIES HAS FAILED TO AFFORD A FULL AND FAIR ADJUDICATION OF THE
FEDERAL CONTENTIONS RAISED, EITHER BECAUSE THE STATE AFFORDS NO REMEDY,
SEE MOONEY V. HOLOHAN, SUPRA, 115, OR BECAUSE IN THE PARTICULAR CASE
THE REMEDY AFFORDED BY STATE LAW PROVES IN PRACTICE UNAVAILABLE OR
SERIOUSLY INADEQUATE, CF. MOORE V. DEMPSEY, 261 U.S. 86; EX PARTE
DAVIS, 318 U.S. 412, A FEDERAL COURT SHOULD ENTERTAIN HIS PETITION FOR
HABEAS CORPUS, ELSE HE WOULD BE REMEDILESS.  IN SUCH A CASE HE SHOULD
PROCEED IN THE FEDERAL DISTRICT COURT BEFORE RESORTING TO THIS COURT BY
PETITION FOR HABEAS CORPUS. 

AS PETITIONER DOES NOT APPEAR TO HAVE EXHAUSTED HIS STATE REMEDIES
HIS APPLICATION WILL BE DENIED WITHOUT PREJUDICE TO HIS RESORT TO THE
PROCEDURE INDICATED AS APPROPRIATE BY THIS OPINION.  APPLICATION
DENIED. 
..END :
























NORTHWESTERN CO. V. POWER COMM'N, 321 U.S. 119 


NO. 195.  ARGUED JANUARY 4, 5, 1944.  - DECIDED JANUARY 31, 1944.  - 134
F.2D 740, AFFIRMED. 


PURSUANT TO AUTHORITY GRANTED BY THE FEDERAL POWER ACT TO PRESCRIBE A
UNIFORM SYSTEM OF ACCOUNTS FOR UTILITIES SUBJECT TO THE ACT, THE
FEDERAL POWER COMMISSION, HAVING FOUND AN ITEM IN THE ACCOUNTS OF A
UTILITY COMPANY TO BE A "WRITE-UP" - BALANCING A LIABILITY ON AN ISSUE
OF COMMON STOCK IN RESPECT OF WHICH THE COMPANY RECEIVED NO VALUE -
ORDERED THE COMPANY TO DISPOSE OF IT BY APPLYING TOWARD ITS ELIMINATION
ALL NET INCOME ABOVE PREFERRED-STOCK DIVIDEND REQUIREMENTS.  HELD THAT
THE ORDER WAS AUTHORIZED BY THE ACT AND WAS CONSTITUTIONAL.  P. 123. 

1.  THE METHOD ADOPTED BY THE COMMISSION FOR THE DISPOSITION OF THE
WRITE-UP, SUPPORTED BY EXPERT EVIDENCE AND NOT PLAINLY ARBITRARY, MAY
NOT BE SET ASIDE ON REVIEW, EVEN THOUGH IT MAY NOT ACCORD WITH THE BEST
ACCOUNTING PRACTICE.  P. 124. 

2.  THAT THE ACCOUNTING METHOD PRESCRIBED INTERFERES WITH THE
FUNCTION OF MANAGEMENT IS NOT A VALID CONSTITUTIONAL OBJECTION.  P.
124. 

3.  THAT THE ORDER PREVENTS THE COMPANY FROM REDRESSING THE
DEFICIENCY OF PAID-IN CAPITAL BY ENTERING AMONG ITS ASSETS SUBSEQUENT
APPRECIATION IN VALUE DOES NOT CONSTITUTE A TAKING OF THE PROPERTY OF
THE COMPANY OR ITS STOCKHOLDERS.  P. 124. 

4.  THAT A SUCCESSOR COMPANY MIGHT HAVE BEEN ALLOWED TO CARRY AS AN
ASSET THE ACTUAL COST TO IT OF THE PHYSICAL PROPERTY OF THE COMPANY IS
IRRELEVANT.  P. 124. 

5.  THE ORDER DOES NOT VIOLATE THE RESERVED POWERS OF THE STATES
UNDER THE TENTH AMENDMENT.  P. 125. 

6.  NO CONFLICT EXISTS BETWEEN THE AUTHORITY HERE EXERCISED BY THE
FEDERAL POWER COMMISSION AND THAT EXERCISED BY THE SECURITIES AND
EXCHANGE COMMISSION.  P. 125. 

NORTHWESTERN ELECTRIC CO. ET AL. V. FEDERAL POWER COMMISSION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 320 U.S. 722, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
FEDERAL POWER COMMISSION.  SEE ALSO 125 F.2D 882; 36 P.U.R. (N.S.) 
202; 43 P.U.R. (N.S.)  148. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ASSERT THAT AN ORDER OF THE FEDERAL POWER COMMISSION MADE
PURSUANT TO ITS AUTHORITY TO PRESCRIBE A UNIFORM SYSTEM OF ACCOUNTS FOR
ELECTRIC UTILITIES IS INVALID BECAUSE IN EXCESS OF THE COMMISSION'S
STATUTORY POWER AND IN VIOLATION OF THE FIFTH AND TENTH AMENDMENTS TO
THE CONSTITUTION. 

NORTHWESTERN ELECTRIC COMPANY IS AN OPERATING UTILITY ALL OF WHOSE
COMMON SHARES ARE OWNED BY AMERICAN POWER & LIGHT COMPANY.  SHORTLY
AFTER ORGANIZATION NORTHWESTERN ISSUED 100,000 SHARES OF $100 PAR
COMMON STOCK TO PROMOTERS.  LATER THE TRANSACTION WAS ENTERED ON ITS
BOOKS AS "LAND AND WATER RIGHTS" WITH A CORRESPONDING CREDIT TO "COMMON
CAPITAL STOCK."  NORTHWESTERN RECEIVED NO CASH OR PROPERTY FOR THE
STOCK SO ISSUED.  THE COMPANY PROSPERED AND ITS COMMON STOCK BECAME
VALUABLE.  IN 1925 AMERICAN PURCHASED ALL THE COMMON STOCK FOR
$5,095,946.48.  IN 1936 NORTHWESTERN WAS PERMITTED BY THE REGULATORY
AUTHORITIES OF THE STATES OF OREGON AND WASHINGTON, IN WHICH IT
OPERATES, TO REDUCE THE PAR VALUE OF ITS COMMON STOCK FROM $100 TO $35,
THUS REDUCING THE OUTSTANDING COMMON TO $3,500,000.  THIS REDUCTION WAS
MADE IN ORDER THAT THE STOCK MIGHT THEN REPRESENT THE FAIR VALUE OF THE
COMPANY'S ASSETS.  ENTRIES ON THE ASSET SIDE WERE WRITTEN DOWN
$6,500,000 TO OFFSET THE REDUCTION IN COMMON STOCK LIABILITY. 

ACTING UNDER SEC. 301(A) OF THE FEDERAL POWER ACT OF 1935  FN1  THE
COMMISSION PRESCRIBED A UNIFORM SYSTEM OF ACCOUNTS FOR UTILITIES AND
ORDERED RECLASSIFICATION OF THEIR ELECTRIC PLANT ACCOUNTS WITH
NECESSARY ADJUSTING ENTRIES TO REFLECT SUCH NEW CLASSIFICATION AS OF
JANUARY 1, 1937.  NORTHWESTERN SUBMITTED A CLASSIFICATION AND THE
COMMISSION, AFTER INVESTIGATION, ISSUED A REPORT THEREON AND REQUESTED
NORTHWESTERN TO SUBMIT A PLAN FOR DISPOSITION OF THE ITEM OF $3,500,000
UPON ITS BOOKS AND RECOMMENDED THAT THE AMOUNT SHOULD BE TRANSFERRED TO
ACCOUNT 107 - ELECTRIC PLANT ADJUSTMENTS - PENDING SUBMISSION OF SUCH A
PLAN.  NORTHWESTERN FAILED TO COMPLY WITH THESE REQUESTS AND AN ORDER
TO SHOW CAUSE WAS ISSUED UPON WHICH A HEARING WAS HELD.  THE COMMISSION
FOUND THAT THE COST OF THE PHYSICAL PROPERTY WAS ALL REPRESENTED BY
OBLIGATIONS ISSUED BY THE COMPANY AND THAT THE COMMON STOCK DID NOT
REPRESENT MONEY OR PROPERTY RECEIVED.  THE COMMISSION FURTHER FOUND
THAT IN THE INTEREST OF CONSUMERS, INVESTORS, AND THE PUBLIC, THE
$3,500,000 WRITE-UP TO BE ENTERED IN ACCOUNT 107 SHOULD BE DISPOSED OF
BY APPLYING NET INCOME ABOVE PREFERRED STOCK DIVIDEND REQUIREMENTS TO
ITS ELIMINATION, AND ADDED THAT THIS DISPOSITION WOULD INSURE THE
COMPANY'S RECEIVING VALUE TO BALANCE COMMON STOCK LIABILITY AND THAT
DIVIDENDS OUGHT NOT TO BE PAID ON THE COMMON STOCK UNTIL IT HAD AN
EQUIVALENT PAID-IN VALUE.  AN ORDER WAS ENTERED REQUIRING NORTHWESTERN
TO COMPLY WITH THE FINDING. 

THE COMMISSION GRANTED A REHEARING ONLY AS RESPECTS THE REQUIRED
DISPOSITION OF THE ASSET ITEM OF $3,500,000, BUT REFUSED A REHEARING ON
ALL OTHER MATTERS INVOLVED IN THE CASE.  NORTHWESTERN OBTAINED A REVIEW
IN THE CIRCUIT COURT OF APPEALS,  FN2  WHICH SUSTAINED THE ORDER AS
AGAINST NORTHWESTERN'S CONTENTIONS THAT THE COMMISSION WAS WITHOUT
POWER TO MAKE AN ORDER FOR THE KEEPING OF ITS ACCOUNTS, BECAUSE OF
EXISTING STATE REGULATION; THAT THE COMMISSION'S ACTION WAS NOT
SUSTAINED BY THE PROOFS BEFORE IT, WAS AN ABUSE OF DISCRETION, AND
CONSTITUTED A DENIAL OF DUE PROCESS OF LAW, SINCE THE SYSTEM OF
ACCOUNTS PRESCRIBED WAS TO SHOW THE COMPANY'S PLANT AT THE AMOUNT IT
COST RATHER THAN AT ITS PRESENT FAIR VALUE.  INASMUCH AS THE REHEARING
WAS PENDING BEFORE THE COMMISSION ON THE DISPOSITION TO BE MADE OF THE
WRITE-UP, THE CIRCUIT COURT OF APPEALS DECLINED TO PASS UPON THAT
MATTER.  FN3 

IN CONNECTION WITH THE REHEARING, THE COMMISSION REQUESTED THE
COMPANY TO SUGGEST ANY DISPOSITION OF THE $3,500,000 ITEM IT THOUGHT
APPROPRIATE.  THE COMPANY REFUSED TO MAKE ANY SUGGESTION, ITS POSITION
BEING THAT THE ENTRY SHOULD REMAIN IN ACCOUNT NO. 107.  THE RESULT OF
PERMITTING IT THUS TO REMAIN IN THE PLANT AND PROPERTY ACCOUNTS OF THE
COMPANY WOULD BE A CONTINUANCE OF A SHOWING ON ITS BOOKS OF ACTUAL
ASSET VALUE TO BALANCE THE OUTSTANDING COMMON STOCK LIABILITY.  THE
COMMISSION REAFFIRMED ITS ORDER AND NORTHWESTERN AGAIN SOUGHT REVIEW IN
THE CIRCUIT COURT OF APPEALS.  AMERICAN, WHICH HAD BEEN PERMITTED TO
INTERVENE, JOINED IN THE APPLICATION FOR COURT REVIEW.  THE CIRCUIT
COURT OF APPEALS REFUSED TO DISTURB THE COMMISSION'S ORDER.  FN4 

THE COMMISSION'S POWER TO PRESCRIBE A UNIFORM SYSTEM OF ACCOUNTING
AND TO REQUIRE NORTHWESTERN TO KEEP ACCOUNTS ACCORDINGLY IS NOT OPEN TO
DOUBT.  ITS ACTION WAS FULLY JUSTIFIED BY THE ACT, FN5  THE RELEVANT
PROVISIONS OF WHICH ARE WITHIN THE LEGISLATIVE POWER.  FN6  THE ONLY
INQUIRIES NOW OPEN ARE WHETHER THE ORDER AS TO THE DISPOSITION OF THE
$3,500,000 ITEM APPEARING IN ACCOUNT 107 GOES BEYOND THE COMMISSION'S
STATUTORY MANDATE OR CONSTITUTIONAL LIMITATIONS.  WE HOLD THAT IT DOES
NEITHER. 

THE CASE PRESENTS ONLY A QUESTION OF PROPER ACCOUNTING.  IN THE LIGHT
OF THE ADMITTED FACT THAT THERE HAS BEEN A WRITE-UP OF THREE AND ONE
HALF MILLION DOLLARS ON THE ASSET SIDE OF THE ACCOUNTS TO BALANCE A
STOCK LIABILITY CREATED BY THE COMPANY IN THE SAME AMOUNT, WHICH
REPRESENTS NO VALUE RECEIVED FOR THE STOCK ISSUED, ANY ACCOUNTING WHICH
LIMITS PLANT ITEMS TO THEIR ACTUAL VALUE WHEN AND AS ACQUIRED DEMANDS
THAT THIS WRITE-UP BE ELIMINATED FROM THE ACCOUNTS.  THOSE IN WHICH THE
COMPANY PREVIOUSLY CARRIED THE ITEM WERE "LAND AND WATER RIGHTS,"
"MISCELLANEOUS NON-OPERATING INTANGIBLE CAPITAL," AND "ORGANIZATION." 
A MERE WRITE-UP BELONGS IN NONE OF THESE ACCOUNTS AND CANNOT PROPERLY
APPEAR IN ANY OTHER ACCOUNT ON THE ASSET SIDE OF THE LEDGER.  IF IT
SHOULD SO REMAIN, IT WOULD HAVE TO BE IN A NEW ACCOUNT REFLECTING
PRESENT VALUE IN EXCESS OF ACTUAL COST WHICH WOULD, IN EFFECT, BE A
PLANT APPRECIATION ACCOUNT AND THE COMMISSION'S FORM OF ACCOUNTING DOES
NOT PERMIT THE CARRYING OF ANY SUCH ITEM IN THE ASSET ACCOUNT SINCE ITS
SYSTEM IS A COST SYSTEM OF ACCOUNTING. 

THE QUESTION IS WHETHER THE WRITE-UP MUST BE WRITTEN OFF THE BOOKS IN
SOME MANNER.  NORTHWESTERN SAYS IT SHOULD NOT BE, BUT IT OFFERED NO
EVIDENCE BEFORE THE COMMISSION TO SHOW THAT IN ACCOUNTS BASED UPON COST
ANY SUCH ITEM SHOULD APPEAR IN PLANT ACCOUNT OR ELSEWHERE.  THERE WAS
EXPERT EVIDENCE BY COMMISSION'S WITNESSES THAT IT MUST BE ELIMINATED. 
NEVERTHELESS THE PETITIONERS INSIST THE COMMISSION'S ORDER AS TO
DISPOSITION IS ARBITRARY. 

ALTHOUGH, AS SUGGESTED IN A BRIEF FILED BY THE AMERICAN INSTITUTE OF
ACCOUNTANTS, THE COMMISSION'S PRESCRIBED METHOD OF ELIMINATING THE
WRITE-UP MAY NOT ACCORD WITH THE BEST ACCOUNTING PRACTICE, IT IS
SUSTAINED BY EXPERT EVIDENCE.  IT IS NOT FOR US TO DETERMINE WHAT IS
THE BETTER PRACTICE SO LONG AS THE COMMISSION HAS NOT PLAINLY ADOPTED
AN OBVIOUSLY ARBITRARY PLAN.  FN7 

THE OBJECTIONS BASED UPON THE CONSTITUTION ARE WITHOUT MERIT AND NEED
BUT BRIEF NOTICE.  THAT THE ACCOUNTING METHOD PRESCRIBED INTERFERES
WITH THE FUNCTION OF MANAGEMENT TO SOME EXTENT IS BESIDE THE POINT. 
FN8  THAT THE COMMISSION'S ACTION PREVENTS THE COMPANY FROM REDRESSING
THE DEFICIENCY OF PAID-IN CAPITAL BY ENTERING AMONG ITS ASSETS
APPRECIATION OF VALUE SUBSEQUENT TO THE ISSUE OF THE COMMON STOCK TAKES
NOTHING FROM THE COMPANY OR THE STOCKHOLDERS.  ALTHOUGH IF AMERICAN HAD
PURCHASED THE ASSETS OF NORTHWESTERN IT MIGHT HAVE BEEN ALLOWED TO
PLACE AMONG ITS ASSETS ON ITS OWN BOOKS THE ACTUAL COST TO IT OF THE
PHYSICAL PROPERTY OF NORTHWESTERN, THE FACT IS IRRELEVANT UPON THE
QUESTION WHETHER NORTHWESTERN MAY CARRY A FICTITIOUS ASSET ACCOUNT
REPRESENTING ESTIMATED VALUE OF CAPITAL STOCK ISSUED NEITHER FOR MONEY
NOR FOR PROPERTY AT EXCHANGE VALUE. 

NOTHING IN THE STATUTE OR THE ORDER PREVENTS NORTHWESTERN KEEPING
OTHER ACCOUNTS IF IT SO DESIRES WHICH WILL GIVE INFORMATION WITH REGARD
TO ESTIMATED PRESENT APPRECIATED VALUE OF ITS ASSETS. 

WE FIND NOTHING IN THE STATUTE WHICH WOULD HAVE PREVENTED A
READJUSTMENT OF THE COMMON STOCK ACCOUNT OR THE EARNED SURPLUS ACCOUNT
IF THE COMPANY HAD BEEN WILLING AND HAD PROPOSED SUCH READJUSTMENT TO
BRING THE STATUTORY ACCOUNTS INTO LINE WITH THE COMMISSION'S PRESCRIBED
SYSTEM. 

THE COMMISSION'S ORDER DOES NOT VIOLATE THE RESERVED RIGHTS OF THE
STATES UNDER THE TENTH AMENDMENT.  WE ARE NOT HERE CONCERNED WITH WHAT
THE REGULATORY AUTHORITIES OF OREGON OR WASHINGTON MAY OR MAY NOT
DEMAND OR PERMIT.  WHATEVER THAT ACTION MAY BE, IT IS SUBORDINATE TO
CONGRESS' APPROPRIATE EXERCISE OF THE COMMERCE POWER.  THE COMMISSION'S
ORDER DOES NOT PURPORT PRESENTLY TO AFFECT OR CONSTRAIN ACTION BY THE
STATES WITHIN THEIR FIELDS. 

WE ARE NOT CALLED UPON TO MAKE ANY DECISION AS TO THE ABILITY OF THE
COMPANY LEGALLY TO DECLARE AND PAY DIVIDENDS. 

THE PETITIONERS ATTACK THE REGULATIONS AS IN CONFLICT WITH THE POWERS
AND THE REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, WHICH
ALSO HAS REGULATORY POWER OVER NORTHWESTERN; BUT AN EXAMINATION OF THE
STATUTE AND OF THE ORDERS AND PROCEEDINGS OF THE SECURITIES AND
EXCHANGE COMMISSION SATISFIES US THAT NO CONFLICT EXISTS. 

THE JUDGMENT IS AFFIRMED. 

FN1  49 STAT. 847, 854, 16 U.S.C. SEC. 825. 

FN2  AS AUTHORIZED BY SEC. 313(B), 49 STAT. 860, 16 U.S.C. SEC.
825L. 

FN3  NORTHWESTERN ELECTRIC CO. V. FEDERAL POWER COMMISSION, 125 F.2D
882. 

FN4  134 F.2D 740. 

FN5  SEC. 201(A), 49 STAT. 847, 16 U.S.C. SEC. 824 IMPOSES
REGULATIONS UPON INTERSTATE UTILITIES; SEC. 205, 49 STAT. 851, 16
U.S.C. SEC. 824D GIVES THE COMMISSION AUTHORITY TO REGULATE RATES, AND
SEC. 301(A) REQUIRES THE KEEPING OF ACCOUNTS BY UTILITIES AND
AUTHORIZES THE COMMISSION TO MAKE RULES AND REGULATIONS NECESSARY OR
APPROPRIATE FOR THE PURPOSES OF THE ADMINISTRATION OF THE ACT. 

FN6  KANSAS CITY SOUTHERN RY. CO. V. UNITED STATES, 231 U.S. 423;
NORFOLK & WESTERN RY. CO. V. UNITED STATES, 287 U.S. 134; AMERICAN TEL.
& TEL. CO. V. UNITED STATES, 299 U.S. 232. 

FN7  SEE NORFOLK & WESTERN RY. CO. V. UNITED STATES, SUPRA, 141;
AMERICAN TEL. & TEL. CO. V. UNITED STATES, SUPRA, 236. 

FN8  NORFOLK & WESTERN RY. CO. V. UNITED STATES, SUPRA, 143. 
..END :



















B.F. GOODRICH CO. V. U.S., 321 U.S. 126 


NO. 158.  ARGUED JANUARY 3, 4, 1944.  - DECIDED JANUARY 31, 1944.  - 135
F.2D 456, AFFIRMED. 


THE PROVISO OF SEC. 9(A) OF THE AGRICULTURAL ADJUSTMENT ACT WHICH, IN
RESPECT OF THE "PROCESSING TAX" PAID ON PROCESSED COTTON, AUTHORIZES A
DEDUCTION FROM THE MANUFACTURERS' EXCISE TAX IMPOSED BY SEC. 602 OF THE
REVENUE ACT OF 1932, IS NOT TO BE CONSTRUED AS AUTHORIZING A DEDUCTION
ALSO IN RESPECT OF THE TAX ON FLOOR STOCKS LEVIED BY SEC. 16 OF THE
AGRICULTURAL ADJUSTMENT ACT.  P. 129. 

B.F. GOODRICH CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 320 U.S. 722, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE GOVERNMENT, 48 F.SUPP.  453, IN A SUIT BROUGHT BY THE TAXPAYER FOR
A TAX REFUND. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR REFUND OF A PORTION OF THE MANUFACTURERS' EXCISE
TAX ON TIRES PAID BY THE PACIFIC GOODRICH RUBBER COMPANY, PETITIONER'S
WHOLLY OWNED SUBSIDIARY, PURSUANT TO SEC. 602 OF THE REVENUE ACT OF
1932.  FN1  THE DISTRICT COURT'S JUDGMENT WAS FOR THE GOVERNMENT, 48
F.SUPP.  453, AND THE CIRCUIT COURT OF APPEALS AFFIRMED.  135 F.2D
456.  CERTIORARI WAS GRANTED ON A PETITION WHICH ALLEGED THAT THE
CIRCUIT COURT'S AFFIRMANCE RESTED ON ITS ERRONEOUS DECISION OF
PROCEDURAL QUESTIONS.  WE WERE ASKED IN THE PETITION TO PASS UPON THESE
ISSUES:  (1)  WHETHER THERE WAS A MATERIAL VARIANCE BETWEEN THE CLAIM
WHICH HAD BEEN DENIED BY THE COMMISSIONER AND THAT SUED UPON IN THE
DISTRICT COURT.  SEE R.S. SEC. 3226, AS AMENDED; UNITED STATES V.
ANDREWS, 302 U.S. 517.  (2)  WHETHER, IF THERE WAS SUCH A VARIANCE, IT
HAD BEEN, OR COULD HAVE BEEN, WAIVED BY THE GOVERNMENT IN THE
PROCEEDINGS IN THE DISTRICT COURT.  SEE UNITED STATES V. GARBUTT OIL
CO., 302 U.S. 528.  ARGUMENT AT THE BAR AND IN THE BRIEFS OF BOTH
PARTIES WAS NOT, HOWEVER, LIMITED TO THESE NARROW PROCEDURAL PROBLEMS
BUT ALSO DEALT WITH THE MERITS OF THE CLAIM FOR REFUND.  THIS ARGUMENT
HAS DISCLOSED THAT, REGARDLESS OF THE PROCEDURAL QUESTIONS, THE
JUDGMENT IN FAVOR OF THE GOVERNMENT CAN BE SUPPORTED ON THE GROUND THAT
UNDER THE CONTROLLING TAX STATUTES PETITIONER'S CLAIM HAS NO MERIT. 
SEE HELEVERING V. GOWRAN, 302 U.S. 238, 245.  WE PASS AT ONCE TO A
CONSIDERATION OF THAT DECISIVE ISSUE. 

PETITIONER CLAIMS IT IS ENTITLED TO THE TAX REFUND UNDER PROVISIONS
OF THE AGRICULTURAL ADJUSTMENT ACT.  FN2  SECTION 9(A) OF THAT ACT
AUTHORIZED THE IMPOSITION OF A "PROCESSING TAX" ON THE "FIRST DOMESTIC
PROCESSING" OF BASIC AGRICULTURAL COMMODITIES, INCLUDING COTTON.  A
PROVISO AT THE END OF THE SECTION GRANTED TO MANUFACTURERS OF CERTAIN
PRODUCTS, INCLUDING TIRES, A DEDUCTION FROM THE EXCISE TAX ON THOSE
PRODUCTS BECAUSE OF THE PAYMENT OF THE "PROCESSING TAX" ON THE COTTON
USED IN THEM.  FN3  ANOTHER SECTION OF THE ACT, SEC. 16, IMPOSED A
DIFFERENT TAX, EQUAL TO THE PROCESSING TAX, ON ARTICLES HELD IN FLOOR
STOCKS ON A CERTAIN DATE FOR SALE OR OTHER DISPOSITION WHICH ARTICLES
HAD BEEN "PROCESSED WHOLLY OR IN CHIEF VALUE" FROM A BASIC AGRICULTURAL
COMMODITY.  FN4  THIS LATTER SECTION DID NOT GRANT ANY DEDUCTION FROM
THE MANUFACTURERS' EXCISE TAX BECAUSE OF THE FLOOR STOCKS TAX. 
NEVERTHELESS WHEN THE PACIFIC GOODRICH RUBBER COMPANY COMPUTED ITS
MANUFACTURERS' EXCISE TAX ON TIRES IT CLAIMED DEDUCTION ON ACCOUNT OF
THE TAX WHICH IT HAD PAID ON FLOOR STOCKS OF COTTON FABRICS.  THE
COMMISSIONER DISALLOWED THE DEDUCTION ON THE GROUND THAT, WHILE
DEDUCTIONS WERE ALLOWABLE FOR COTTON ON WHICH A "PROCESSING TAX" HAD
BEEN PAID UNDER SEC. 9(A), THEY WERE NOT ALLOWABLE FOR COTTON ON WHICH
A TAX ON FLOOR STOCKS HAD BEEN PAID UNDER SEC. 16.  THIS SUIT IS BASED
ON THE PREMISE THAT THE DEDUCTION PROVISO OF SEC. 9(A) SHOULD BE READ
INTO SEC. 16. 

WITHIN THE LITERAL MEANING OF THE AGRICULTURAL ADJUSTMENT ACT A TAX
ON FLOOR STOCKS WAS NOT A "PROCESSING TAX," AND THEREFORE THE PROVISO
IN SEC. 9(A) WHICH SPOKE ONLY OF A "PROCESSING TAX" ON COTTON WAS NOT
LITERALLY APPLICABLE TO THE TAX ON FLOOR STOCKS IMPOSED UNDER SEC. 16. 
THE TAX ON FLOOR STOCKS, THOUGH COMPLEMENTING THE PROCESSING TAX, WAS
NOT A TAX UPON THE "PROCESSING" OF AN AGRICULTURAL COMMODITY BUT UPON
ARTICLES ALREADY PROCESSED FROM SUCH A COMMODITY AND HELD FOR SALE OR
OTHER DISPOSITION ON THE DATE WHEN THE PROCESSING TAX ON THE COMMODITY
WENT INTO EFFECT.  ALTHOUGH THE LITERAL LANGUAGE OF THE ACT DOES NOT
AUTHORIZE THE DEDUCTION WHICH IT CLAIMS, PETITIONER CONTENDS THAT THE
PURPOSE OF CONGRESS TO RELIEVE TIRE MANUFACTURERS FROM SO-CALLED
"DOUBLE TAXATION" ON COTTON CONTAINED IN TIRES WILL BE DEFEATED  FN5
UNLESS WE READ INTO SEC. 16 THE PROVISO OF SEC. 9(A). 

WITH THIS CONTENTION WE CANNOT AGREE.  IN THE FORM IN WHICH THE
AGRICULTURAL ADJUSTMENT ACT WAS INTRODUCED IN CONGRESS, NEITHER SEC.
9(A), WHICH AUTHORIZED THE "PROCESSING TAX," NOR SEC. 16, WHICH
AUTHORIZED THE FLOOR STOCKS TAX, CONTAINED A PROVISO GRANTING A
DEDUCTION FROM THE MANUFACTURERS' EXCISE TAX.  FN6  BUT SEC. 16 OF THE
BILL DID PROVIDE THAT UNDER SPECIFIED CIRCUMSTANCES TAXPAYERS SUBJECT
TO THE FLOOR STOCKS TAX WOULD BE ENTITLED TO A TAX ADJUSTMENT IN THE
NATURE OF A REFUND.  FN7  WHEN THE BILL WAS UNDER CONSIDERATION IN THE
SENATE, SEC. 9(A) WAS AMENDED BY ADDING A PROVISO  FN8  WHICH
AUTHORIZED AN ADJUSTMENT ON ACCOUNT OF THE "PROCESSING TAX" IN THE
NATURE OF A DEDUCTION FROM THE MANUFACTURERS' EXCISE TAX.  THUS THE
BILL AS FINALLY ENACTED PROVIDED ONE TYPE OF ADJUSTMENT FOR THE FLOOR
STOCKS TAX IN SEC. 16 AND A DIFFERENT TYPE OF ADJUSTMENT FOR THE
PROCESSING TAX IN SEC. 9(A).  WE HAVE BEEN POINTED TO NOTHING IN THE
ACT AS A WHOLE OR ITS LEGISLATIVE HISTORY WHICH SHOWS THAT CONGRESS
CONSIDERED THESE SEPARATE METHODS OF ADJUSTING THE TWO TAXES
INSUFFICIENT TO PREVENT THE BURDEN OF "DOUBLE TAXATION" ON THE TIRE
MANUFACTURERS SO FAR AS CONGRESS WANTED TO PREVENT IT.  WE CANNOT SAY,
THEREFORE, THAT THE EXPRESSED INTENTION OF CONGRESS IS DEFEATED BY A
LITERAL INTERPRETATION OF THE ACT WHICH DECLINES TO READ THE PROVISO OF
SEC. 9(A) INTO SEC. 16.  FN9  THE JUDGMENT OF THE CIRCUIT COURT IS
ACCORDINGLY AFFIRMED. 

FN1  "SEC.  602.  TAX ON TIRES AND INNER TUBES. 

"THERE IS HEREBY IMPOSED UPON THE FOLLOWING ARTICLES SOLD BY THE
MANUFACTURER, PRODUCER, OR IMPORTER, A TAX AT THE FOLLOWING RATES: 

"(1)  TIRES WHOLLY OR IN PART OF RUBBER, 2 1/4 CENTS A POUND ON TOTAL
WEIGHT  ..."  REVENUE ACT OF 1932, C. 209, 47 STAT. 169, 261. 

FN2  48 STAT. 31. 

FN3  "PROVIDED, THAT UPON ANY ARTICLE UPON WHICH A MANUFACTURERS'
SALES TAX IS LEVIED UNDER THE AUTHORITY OF THE REVENUE ACT OF 1932 AND
WHICH MANUFACTURERS' SALES TAX IS COMPUTED ON THE BASIS OF WEIGHT, SUCH
MANUFACTURERS' SALES TAX SHALL BE COMPUTED ON THE BASIS OF THE WEIGHT
OF SAID FINISHED ARTICLE LESS THE WEIGHT OF THE PROCESSED COTTON
CONTAINED THEREIN ON WHICH A PROCESSING TAX HAS BEEN PAID."  48 STAT.
36.  ALTHOUGH THE COVERAGE OF THIS PROVISO WAS NOT SPECIFICALLY LIMITED
TO THE EXCISE TAX ON TIRES, THE PROVISO CAME INTO SEC. 9(A) AS A SENATE
FLOOR AMENDMENT INTRODUCED "TO AVOID AN UNDULY BURDENSOME TAX ON
AUTOMOBILE TIRES."  77 CONG. REC. 1959.  THE VIEW WAS EXPRESSED ON THE
FLOOR OF THE SENATE THAT, EXCEPT FOR THE PROPOSED AMENDMENT, THE COTTON
USED IN TIRES WOULD BE TWICE TAXED BY WEIGHT; ONCE BY THE PROCESSING
TAX ON COTTON, AND AGAIN BY THE EXCISE TAX ON TIRES.  77 CONG. REC.
1960.  SEE NOTE 1, SUPRA. 

FN4  SECTION 16, ENTITLED "FLOOR STOCKS," READ IN PART AS FOLLOWS:
"SEC.  16.  (A) UPON THE SALE OR OTHER DISPOSITION OF ANY ARTICLE
PROCESSED WHOLLY OR IN CHIEF VALUE FROM ANY COMMODITY WITH RESPECT TO
WHICH A PROCESSING TAX IS TO BE LEVIED, THAT ON THE DATE THE TAX FIRST
TAKES EFFECT ...  WITH RESPECT TO THE COMMODITY, IS HELD FOR SALE OR
OTHER DISPOSITION  ... BY ANY PERSON, THERE SHALL BE MADE A TAX
ADJUSTMENT AS FOLLOWS: 

"(1)  WHENEVER THE PROCESSING TAX FIRST TAKES EFFECT, THERE SHALL BE
LEVIED  ...  A TAX TO BE PAID BY SUCH PERSON EQUIVALENT TO THE AMOUNT
OF THE PROCESSING TAX WHICH WOULD BE PAYABLE WITH RESPECT TO THE
COMMODITY FROM WHICH PROCESSED IF THE PROCESSING HAD OCCURRED ON SUCH
DATE."  48 STAT. 40. 

FN5  SEE NOTE 3, SUPRA. 

FN6  SENATE HEARINGS ON H.R. 3835, 73D CONG., 1ST SESS., PP. 1, 3,
6. 

FN7  SECTION 16(A)(2) OF THE ORIGINAL BILL, SUBSEQUENTLY ENACTED
WITHOUT AMENDMENT, PROVIDED THAT, "WHENEVER THE PROCESSING TAX IS
WHOLLY TERMINATED, THERE SHALL BE REFUNDED TO SUCH PERSON A SUM  ...
IN AN AMOUNT EQUIVALENT TO THE PROCESSING TAX WITH RESPECT TO THE
COMMODITY FROM WHICH PROCESSED."  IN REPORTING ON SEC. 16 THE HOUSE
COMMITTEE ON AGRICULTURE STATED THAT, "A CORRESPONDING REFUND IS
PROVIDED ON FLOOR STOCKS WHEN THE PROCESSING TAX FINALLY TERMINATES." 
H.R. REP. NO. 6, 73D CONG., 1ST SESS., 6. 

FN8  THE PROVISO, ORIGINALLY INTRODUCED AS AN AMENDMENT TO SEC. 9(A),
AUTHORIZED AN ADJUSTMENT TO BE COMPUTED BY DEDUCTING FROM THE
MANUFACTURERS' EXCISE TAXES ON CERTAIN ARTICLES, INCLUDING TIRES, "AN
AMOUNT EQUAL TO THE PROCESSING TAX PAID ON THE COTTON USED THEREIN." 
77 CONG. REC. 1959.  SUBSEQUENTLY THE METHOD OF COMPUTING THE
PERMISSIBLE DEDUCTION WAS ALTERED.  SEE CONFERENCE REPORT ACCOMPANYING
H.R. 3835, PRINTED AS H.R. REPORT NO. 100, 73D CONG., 1ST SESS., 3; SEE
ALSO NOTE 3, SUPRA. 

FN9  CF. MOORE V. GOODYEAR TIRE & RUBBER CO., 141 F.2D 328. 
..END :















CARTER V. VIRGINIA, 321 U.S. 131 


ARGUED JANUARY 6, 1944.  - DECIDED JANUARY 31, 1944.  - 181 VA. 306,
313, 24 S.E.2D 550, 569, AFFIRMED. 


1.  REGULATIONS BY A STATE OF THE TRANSPORTATION OF INTOXICATING
LIQUOR THROUGH THE STATE IN INTERSTATE COMMERCE, REQUIRING (1) THAT THE
VEHICLE USE THE MOST DIRECT ROUTE AND CARRY A BILL OF LADING DESCRIBING
THE ROUTE; (2) THAT THE CARRIER POST A $1,000 BOND CONDITIONED ON
LAWFUL TRANSPORTATION; AND (3) THAT THE TRUE CONSIGNEE BE NAMED IN THE
BILL OF LADING AND BE ONE WHO HAS A LEGAL RIGHT TO RECEIVE THE SHIPMENT
AT DESTINATION, HELD WITHIN THE POWER OF THE STATE, INDEPENDENTLY OF
THE TWENTY-FIRST AMENDMENT, AND NOT (ABSENT CONFLICTING FEDERAL
REGULATION) IN CONTRAVENTION OF THE COMMERCE CLAUSE.  P. 137. 

2.  AS NO PROCEDURAL DUE PROCESS POINT WAS RAISED, THE STATE COURT'S
CONCLUSION THAT UNDER THE APPLICABLE STATE PROCEDURE ONLY THE BONDSMAN,
WHO WAS NOT A PARTY TO THE PRESENT PROCEEDING, HAD STANDING TO OBJECT
TO THE CANCELLATION OF A BOND GIVEN PURSUANT TO THE REGULATIONS, IS
ACCEPTED HERE.  P. 136. 

3.  THE POWER OF THE STATE BOARD TO CANCEL A BOND GIVEN PURSUANT TO
THE REGULATIONS, BECAUSE OF DOUBT OF THE RESPONSIBILITY OF THE
BONDSMAN, DOES NOT CONSTITUTE AN UNDUE BURDEN ON INTERSTATE COMMERCE. 
P. 136. 

CARTER ET AL. V. VIRGINIA. 

NO. 134.  APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA* . 

*TOGETHER WITH NO. 198, DICKERSON ET AL. V. VIRGINIA, ALSO ON APPEAL
FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

APPEALS FROM CONVICTIONS FOR VIOLATION OF STATE REGULATIONS RELATING
TO THE TRANSPORTATION OF INTOXICATING LIQUORS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS WERE CONVICTED OF VIOLATIONS OF THE VIRGINIA ALCOHOLIC
BEVERAGE CONTROL ACT  FN1 AND CERTAIN REGULATIONS ISSUED PURSUANT TO
IT, CONCERNING THE TRANSPORTATION OF INTOXICATING LIQUOR THROUGH THE
COMMONWEALTH.  THEIR CONTENTION THAT THE PERTINENT PROVISIONS OF THE
ACT AND REGULATIONS  FN2  VIOLATED THE COMMERCE CLAUSE, ARTICLE I, SEC.
8(3), OF THE FEDERAL CONSTITUTION WAS REJECTED BY VIRGINIA'S HIGHEST
COURT, THE SUPREME COURT OF APPEALS.  181 VA. 306, 313, 24 S.E.2D 550,
569.  THE CASES ARE HERE ON APPEALS PURSUANT TO SEC. 237(A) OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 344(A). 

THE ACT IN QUESTION CONTAINS A COMPREHENSIVE SCHEME FOR THE CONTROL
OF TRADE IN ALCOHOLIC BEVERAGES WITHIN THE TERRITORY OF VIRGINIA.  BY
THE STATUTE AN ALCOHOLIC BEVERAGE CONTROL BOARD IS ESTABLISHED AND
AUTHORIZED TO ADOPT SUCH REGULATIONS "AS IT MAY DEEM NECESSARY" TO
CONFINE THE TRANSPORTATION OF LIQUOR "TO LEGITIMATE PURPOSES."  FN3
THE A.B.C. BOARD PROMULGATED REGULATIONS APPLICABLE TO TRANSPORTATION
THROUGH VIRGINIA.  FN4  THE REQUIREMENTS HERE IN ISSUE ARE THESE: (1)
THE VEHICLE MUST USE THE MOST DIRECT ROUTE AND CARRY A BILL OF LADING
SHOWING THE ROUTE IT WILL TRAVEL; (2) THE CARRIER MUST POST A BOND IN
THE PENAL SUM OF $1,000 CONDITIONED ON LAWFUL TRANSPORTATION; AND (3)
THE BILL OF LADING MUST SHOW THE NAME OF THE TRUE CONSIGNEE, AND THAT
CONSIGNEE MUST HAVE A LEGAL RIGHT TO RECEIVE THE BEVERAGES AT THE
STATED DESTINATION. 

BOTH CASES REACHED THE VIRGINIA SUPREME COURT ON STIPULATED FACTS. 
IN NO. 134, IT WAS AGREED THAT CARTER AND MACEMORE RECEIVED 168 GALLONS
OF WHISKEY FROM A WHOLESALER IN MARYLAND FOR TRANSPORTATION TO AN
INDIVIDUAL CONSIGNEE IN THOMASVILLE, NORTH CAROLINA.  THE APPELLANTS
WERE APPREHENDED IN RAPPAHANNOCK COUNTY, VIRGINIA, WHILE CARRYING THE
WHISKEY BY TRUCK.  THE APPELLANTS THEMSELVES DID NOT POST A BOND, AND A
BOND WHICH WAS POSTED BY THE REGISTERED OWNER OF THE TRUCK WAS
CANCELLED BECAUSE HE WAS REPUTED TO BE A BOOTLEGGER.  THEIR BILL OF
LADING DID NOT SHOW THE ROUTE TO BE TRAVERSED THROUGH VIRGINIA, AND THE
INTENDED DELIVERY TO THE CONSIGNEE WAS FORBIDDEN BY THE LAWS OF NORTH
CAROLINA. 

THE FACTS STIPULATED IN NO. 198 ARE SIMILAR.  DICKERSON WAS ARRESTED
IN PRINCE WILLIAM COUNTY, VIRGINIA, WHILE DRIVING A TRUCK CARRYING MORE
THAN ONE GALLON OF ALCOHOLIC BEVERAGES.  HE WAS TRAVELING BY THE MOST
DIRECT ROUTE FROM MARYLAND TO HIS EMPLOYER-CONSIGNEE, PAGE, IN NORTH
CAROLINA.  PAGE HAD POSTED THE REQUIRED BOND, BUT THE BILL OF LADING
DID NOT SHOW THE ROUTE TO BE TRAVELED, AND PAGE WAS FORBIDDEN BY THE
LAWS OF NORTH CAROLINA TO ACCEPT DELIVERY THERE. 

ALL THE INDIVIDUALS INVOLVED IN THE TWO CASES WERE RESIDENTS OF NORTH
CAROLINA. 

THE APPELLANTS ARGUE, FIRST, THAT THE TWENTY-FIRST AMENDMENT GIVES
VIRGINIA NO POWER TO PROHIBIT ABSOLUTELY THE SHIPMENT OF LIQUOR FROM
MARYLAND TO NORTH CAROLINA THROUGH VIRGINIA; SECOND, THAT ITS POWER TO
REGULATE SUCH SHIPMENTS IS LIMITED BY THE COMMERCE CLAUSE TO
REGULATIONS REASONABLY NECESSARY TO ENFORCE ITS LOCAL LIQUOR LAWS AND
NOT UNDULY BURDENSOME ON INTERSTATE COMMERCE; THIRD, THAT VIRGINIA HAS
NO AUTHORITY TO PENALIZE PROSPECTIVE VIOLATIONS OF THE CRIMINAL LAWS OF
NORTH CAROLINA OR THE UNITED STATES.  IT WILL BE OBSERVED THAT THE
INTOXICATING LIQUORS IN QUESTION ARE INTENDED FOR CONTINUOUS SHIPMENT
THROUGH VIRGINIA, SO THAT HERE, AS IN THE DUCKWORTH CASE,  FN5  A
DIFFERENT QUESTION ARISES FROM THOSE CONSIDERED UNDER THE TWENTY-FIRST
AMENDMENT, FN6  WHERE TRANSPORTATION OR IMPORTATION INTO A STATE FOR
DELIVERY OR USE THEREIN WAS PROHIBITED.  BUT WE MAY PUT ASIDE THE FIRST
AND THIRD CONTENTIONS, FOR WE ARE SATISFIED THAT VIRGINIA MAY,
NOTWITHSTANDING THE COMMERCE CLAUSE AND INDEPENDENTLY OF THE TWENTY
FIRST AMENDMENT, IN ORDER TO PROTECT HERSELF FROM ILLICIT LIQUOR
TRAFFIC WITHIN HER BORDERS, SUBJECT THE SHIPMENT OF LIQUOR THROUGH
VIRGINIA TO THE REGULATIONS HERE IN QUESTION. 

WE HAVE RECOGNIZED THAT THE SEVERAL STATES IN THE ABSENCE OF FEDERAL
LEGISLATION MAY REQUIRE REGULATORY LICENSES FOR THROUGH SHIPMENTS OF
LIQUOR IN ORDER TO GUARD AGAINST VIOLATIONS OF THEIR OWN LAWS. 
DUCKWORTH V. ARKANSAS, 314 U.S. 390.  THUS THIS COURT HAS EXTENDED TO
THIS VERY FIELD ITS RECOGNITION THAT REGULATION OF INTERSTATE COMMERCE
BY LOCAL AUTHORITY IN THE ABSENCE OF CONGRESSIONAL ACTION IS ADMISSIBLE
TO PROTECT THE STATE FROM INJURIES ARISING FROM THAT COMMERCE. 
CALIFORNIA V. THOMPSON, 313 U.S. 109, 113, 115, AND CASES CITED; CLARK
V. PAUL GRAY, INC., 306 U.S. 583, 591; MORF V. BINGAMAN, 298 U.S. 407,
410; CLYDE MALLORY LINES V. ALABAMA, 296 U.S. 261, 267.  THE COMMERCE
POWER OF CONGRESS IS NOT INVADED BY SUCH POLICE REGULATIONS AS VIRGINIA
HAS HERE ENFORCED. 

THE STATE OF TRANSIT MAY COMPEL THE CARRIER TO FURNISH INFORMATION
NECESSARY FOR CHECKING THE SHIPMENT AGAINST UNLAWFUL DIVERSION, AND THE
REQUIREMENT THAT THE TRUCK FOLLOW A DIRECT, STATED ROUTE IS WITHIN THE
RULE OF DUCKWORTH V. ARKANSAS, SUPRA.  SIMILARLY, A STATE MAY REQUIRE A
REASONABLE BOND OF ONE WHO WISHES TO ENGAGE IN INTERSTATE TRADE OF A
KIND DANGEROUS TO WELL-RECOGNIZED LOCAL INTERESTS.  CALIFORNIA V.
THOMPSON, 313 U.S. 109. 

THE STATE COURT DID NOT PASS UPON THE LEGALITY UNDER STATE OR FEDERAL
LAW OF THE CANCELLATION OF THE BOND IN NO. 134, SINCE IT CONCLUDED THAT
ONLY THE BONDSMAN, WHO WAS NOT A PARTY TO THE PROCEEDING, HAD STANDING
TO OBJECT UNDER APPLICABLE STATE PROCEDURE.  AS NO PROCEDURAL DUE
PROCESS POINT IS RAISED, WE ACCEPT ITS CONCLUSION WITHOUT FURTHER
EXAMINATION.  UNITED GAS CO. V. TEXAS, 303 U.S. 123, 139.  IT IS URGED,
HOWEVER, THAT THE BOARD'S POWER TO CANCEL A BOND BECAUSE OF DOUBTS AS
TO THE TRUSTWORTHINESS OF THE BONDSMAN AMOUNTS TO AN UNDUE BURDEN ON
INTERSTATE COMMERCE. 

THE BOND IS TO BE FURNISHED, ACCORDING TO SEC. 42 OF THE REGULATIONS,
BY THE PERSON TRANSPORTING THE LIQUOR.  THUS THE REQUIREMENT THAT THE
BOND BE SIGNED BY A RESPONSIBLE PERSON APPEARS TO RAISE THE SAME TYPE
OF QUESTION AS THE REQUIREMENT THAT DELIVERY BE LAWFUL AT THE PLACE OF
CONSIGNMENT, AND THE TWO MAY BE CONSIDERED TOGETHER.  OF THE LATTER
RULE, THE VIRGINIA COURT SAID, 

"WE CANNOT ESCAPE THE CONCLUSION THAT ONE WHO DELIBERATELY AND
INTENTIONALLY VIOLATES THE FEDERAL CONSTITUTION AND THE LAW OF HIS
RESIDENT STATE, IN THE UNLAWFUL TRANSPORTATION OF LIQUOR WOULD HARDLY
HESITATE TO VIOLATE THE LAWS OF THIS STATE WHILE PASSING THROUGH IT IF
HE THOUGHT HE MIGHT PROFIT THEREBY.  WE CANNOT SHUT OUR EYES TO THE
POSSIBILITIES OF SUCH A SITUATION AND THE NECESSITY OF PREVENTION." 

WE ARE THEREFORE DEALING WITH A CASE IN WHICH VIRGINIA IS ATTEMPTING
NO MORE THAN THE ENFORCEMENT OF HER OWN LAWS; SHE IS NOT SEEKING TO
INFLICT PUNISHMENT FOR THE VIOLATION OF THE LAWS OF NORTH CAROLINA. 
WHETHER OR NOT SHE IS ENTITLED THUS TO ENFORCE HER LAWS MUST BE JUDGED
IN THE LIGHT OF OUR LONG-STANDING RECOGNITION OF THE EXCEPTIONAL
PROBLEMS INVOLVED IN SUCCESSFULLY REGULATING TRADE IN INTOXICATING
LIQUORS.  CLARK DISTILLING CO. V. WESTERN MARYLAND RY. CO., 242 U.S.
311, 332; DUCKWORTH V. ARKANSAS, SUPRA, AT 396.  WE DO NOT CONSIDER THE
APPELLEE'S SUGGESTION THAT COMPLETE EXCLUSION (AND HENCE THESE PARTIAL
RESTRAINTS) OF MOTOR CARRIERS FROM THE THROUGH LIQUOR TRAFFIC AND A
LIMITATION OF THROUGH TRANSIT TO RAIL CARRIERS WOULD BE CONSONANT WITH
THE COMMERCE CLAUSE.  CF. ZIFFRIN, INC. V. REEVES, 308 U.S. 132, 140. 
WHATEVER MAY BE THE EFFECT OF THE TWENTY-FIRST AMENDMENT, THIS RECORD
PRESENTS NO PROBLEM THAT MAY NOT BE RESOLVED UNDER THE COMMERCE CLAUSE
ALONE.  THAT CLAUSE REMAINS IN THE CONSTITUTION AS A GRANT OF POWER TO
CONGRESS TO CONTROL COMMERCE AND AS A DIMINUTION PRO TANTO OF ABSOLUTE
STATE SOVEREIGNTY OVER THE SAME SUBJECT MATTER.  THE TWENTY-FIRST
AMENDMENT LIMITS THAT GRANT OF POWER AS TO INTOXICATING LIQUOR BY
PROHIBITING "TRANSPORTATION OR IMPORTATION INTO ANY STATE, TERRITORY,
OR POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE THEREIN  ...  IN
VIOLATION OF THE LAWS THEREOF."  BY INTERPRETATION OF THIS COURT THE
AMENDMENT HAS BEEN HELD TO RELIEVE THE STATES OF THE LIMITATIONS OF THE
COMMERCE CLAUSE ON THEIR POWERS OVER SUCH TRANSPORTATION OR
IMPORTATION.  FN7  IT HAS ALSO BEEN HELD THAT SHIPMENT THROUGH A STATE
IS NOT TRANSPORTATION OR IMPORTATION INTO THE STATE WITHIN THE MEANING
OF THE AMENDMENT.  COLLINS V. YOSEMITE PARK CO., 304 U.S. 518, 535,
538.  BUT IN THE PRESENT CASE WE NEED NOT CONSIDER THE POWER OF
VIRGINIA UNDER THE TWENTY-FIRST AMENDMENT TO REGULATE THROUGH
SHIPMENTS.  IT IS ENOUGH THAT VIRGINIA COULD CONCLUDE, IN THE ABSENCE
OF CONTRARY FEDERAL LEGISLATION, THAT SHE COULD NOT SAFELY PERMIT THE
TRANSPORTATION OF LIQUOR THROUGH HER TERRITORY BY THOSE WHO CONCEDEDLY
MEAN TO BREAK FEDERAL LAWS  FN8  AND THE LAWS OF A NEIGHBORING STATE. 
BY HER RULING SHE HAS IMPOSED NO SUBSTANTIAL CLOG ON WHATEVER COGNATE
RIGHTS HER SISTER STATES MAY HAVE TO DETERMINE THEIR OWN POLICIES
REGARDING INTOXICATING LIQUORS AND TO RECEIVE ALCOHOLIC BEVERAGES IN
INTERSTATE COMMERCE, IF THEY SO DESIRE. 

FOR THESE REASONS THE JUDGMENT IS AFFIRMED. 

FN1  MICHIE'S VIRGINIA CODE (1942) SEC. 4675. 

FN2  REGULATIONS OF THE VIRGINIA ALCOHOLIC BEVERAGE CONTROL BOARD,
SECS. 42, 44. 

FN3  VIRGINIA CODE, SEC. 4675(49A).  "TRANSPORTATION; TRANSPORTATION
PERMITS; PENALTIES.  - THE TRANSPORTATION OF ALCOHOLIC BEVERAGES, OTHER
THAN WINE AND BEER PURCHASED FROM PERSONS LICENSED TO SELL SAME IN THIS
STATE, AND THOSE ALCOHOLIC BEVERAGES WHICH MAY BE MANUFACTURED AND SOLD
WITHOUT ANY LICENSE UNDER THE PROVISIONS OF THIS ACT, WITHIN, INTO OR
THROUGH THE STATE OF VIRGINIA IN QUANTITIES IN EXCESS OF ONE GALLON IS
PROHIBITED EXCEPT IN ACCORDANCE WITH REGULATIONS ADOPTED BY THE
VIRGINIA ALCOHOLIC BEVERAGE CONTROL BOARD PURSUANT TO THIS SECTION. 

"THE BOARD MAY ADOPT SUCH REGULATIONS GOVERNING THE TRANSPORTATION OF
ALCOHOLIC BEVERAGES, OTHER THAN WINE AND BEER PURCHASED FROM PERSONS
LICENSED TO SELL SAME IN THIS STATE AND THOSE ALCOHOLIC BEVERAGES WHICH
MAY BE MANUFACTURED AND SOLD WITHOUT ANY LICENSE UNDER THE PROVISIONS
OF THIS ACT, WITHIN, INTO OR THROUGH VIRGINIA IN QUANTITIES IN EXCESS
OF ONE GALLON AS IT MAY DEEM NECESSARY TO CONFINE SUCH TRANSPORTATION
TO LEGITIMATE PURPOSES AND MAY ISSUE TRANSPORTATION PERMITS IN
ACCORDANCE WITH SUCH REGULATIONS.  ...  " 

FN4  SECTION 42 OF THE REGULATIONS PROVIDES:  "BEFORE ANY PERSON
SHALL TRANSPORT ANY ALCOHOLIC BEVERAGES WITHIN, INTO, OR THROUGH THE
STATE OF VIRGINIA, SUCH PERSON SHALL POST WITH THE VIRGINIA ALCOHOLIC
BEVERAGE CONTROL BOARD A BOND WITH APPROVED SURETY, PAYABLE TO THE
COMMONWEALTH OF VIRGINIA, IN THE PENALTY OF ONE THOUSAND DOLLARS, UPON
CONDITION THAT SUCH PERSON WILL NOT UNLAWFULLY TRANSPORT AND/OR DELIVER
ANY ALCOHOLIC BEVERAGES WITHIN, INTO, OR THROUGH THE STATE OF VIRGINIA,
AND EVIDENCE THAT THE REQUIRED BOND HAS BEEN POSTED SHALL ACCOMPANY THE
ALCOHOLIC BEVERAGES AT ALL TIMES DURING TRANSPORTATION.  ...  " 

TO BE TRANSPORTED WITHIN, INTO, OR THROUGH THE STATE OF VIRGINIA
(EXCEPT THOSE INSTANCES MENTIONED IN SECTIONS 42 AND 43 OF THESE
REGULATIONS), SUCH TRANSPORTATION SHALL BE ENGAGED IN ONLY WHEN IN
ACCORDANCE WITH THE PROVISIONS OF THESE REGULATIONS: 

"(A)  THERE SHALL ACCOMPANY SUCH ALCOHOLIC BEVERAGES AT ALL TIMES
DURING TRANSPORTATION, A BILL OF LADING OR OTHER MEMORANDUM OF SHIPMENT
SIGNED BY THE CONSIGNOR SHOWING AN EXACT DESCRIPTION OF THE ALCOHOLIC
BEVERAGES BEING TRANSPORTED; THE NAME AND ADDRESS OF THE CONSIGNOR; THE
NAME AND ADDRESS OF THE CONSIGNEE; THE ROUTE TO BE TRAVELED BY SUCH
VEHICLE WHILE IN VIRGINIA AND SUCH ROUTE MUST BE THE MOST DIRECT ROUTE
FROM THE CONSIGNOR'S PLACE OF BUSINESS TO THE PLACE OF BUSINESS OF THE
CONSIGNEE. 

"(B)  VEHICLES TRANSPORTING ALCOHOLIC BEVERAGES SHALL NOT VARY FROM
THE ROUTE SPECIFIED IN THE BILL OF LADING OR OTHER MEMORANDUM OF
SHIPMENT. 

"(C)  THE NAME OF THE CONSIGNOR ON ANY SUCH BILL OF LADING OR OTHER
MEMORANDUM OF SHIPMENT SHALL BE THE NAME OF THE TRUE CONSIGNOR OF THE
ALCOHOLIC BEVERAGES BEING TRANSPORTED AND SUCH CONSIGNOR SHALL ONLY BE
A PERSON WHO HAS A LEGAL RIGHT TO MAKE SUCH SHIPMENT.  THE NAME OF THE
CONSIGNEE ON ANY SUCH BILL OF LADING OR MEMORANDUM OF SHIPMENT SHALL BE
THE NAME OF THE TRUE CONSIGNEE OF THE ALCOHOLIC BEVERAGES BEING
TRANSPORTED AND WHO HAS PREVIOUSLY AUTHORIZED IN WRITING THE SHIPMENT
OF THE ALCOHOLIC BEVERAGES BEING TRANSPORTED AND WHO HAS A LEGAL RIGHT
TO RECEIVE SUCH ALCOHOLIC BEVERAGES AT THE POINT OF DESTINATION SHOWN
ON THE BILL OF LADING OR OTHER MEMORANDUM OF SHIPMENT." 

FN5  DUCKWORTH V. ARKANSAS, 314 U.S. 390, 392-3. 

FN6  SEE STATE BOARD V. YOUNG'S MARKET CO., 299 U.S. 59; MAHONEY V.
JOSEPH TRINER CORP., 304 U.S. 401; INDIANAPOLIS BREWING CO. V. LIQUOR
COMMISSION, 305 U.S. 391; JOSEPH S. FINCH & CO. V. MCKITTRICK, 305 U.S.
395.    FN7  STATE BOARD V. YOUNG'S MARKET CO., 299 U.S. 59;
INDIANAPOLIS BREWING CO. V. LIQUOR COMMISSION, 305 U.S. 391. 

FN8  TWENTY-FIRST AMENDMENT, SEC. 2; 27 U.S.C. SEC. 122. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT ONLY, FOR THE REASONS
STATED IN HIS SEPARATE OPINION IN DUCKWORTH V. ARKANSAS, 314 U.S. 390. 

MR. JUSTICE BLACK, CONCURRING: 

I AM NOT SURE THAT STATE STATUTES REGULATING INTOXICATING LIQUOR
SHOULD EVER BE INVALIDATED BY THIS COURT UNDER THE COMMERCE CLAUSE
EXCEPT WHERE THEY CONFLICT WITH VALID FEDERAL STATUTES.  CF. DISSENTING
OPINIONS, MCCARROLL V. DIXIE GREYHOUND LINES, 309 U.S. 176, 183; GWIN,
WHITE & PRINCE V. HENNEFORD, 305 U.S. 434, 442; ADAMS MANUFACTURING CO.
V. STOREN, 304 U.S. 307, 316.  THE TWENTY-FIRST AMENDMENT HAS PLACED
LIQUOR IN A CATEGORY DIFFERENT FROM THAT OF OTHER ARTICLES OF
COMMERCE.  THOUGH THE PRECISE AMOUNT OF POWER IT HAS LEFT IN CONGRESS
TO REGULATE LIQUOR UNDER THE COMMERCE CLAUSE HAS NOT BEEN MARKED OUT BY
DECISIONS, THIS MUCH IS SETTLED:  LOCAL, NOT NATIONAL, REGULATION OF
THE LIQUOR TRAFFIC IS NOW THE GENERAL CONSTITUTIONAL POLICY.  ZIFFRIN,
INC. V. REEVES, 308 U.S. 132; INDIANAPOLIS BREWING CO. V. LIQUOR
CONTROL COMM'N, 305 U.S. 391; STATE BOARD OF EQUALIZATION V. YOUNG'S
MARKET CO., 299 U.S. 59. 

WHATEVER LIMITED FORCE THE COMMERCE CLAUSE MAY RETAIN WITH REGARD TO
THE LIQUOR TRAFFIC, IT SHOULD NOT REQUIRE THE INVALIDATION OF THE
VIRGINIA STATUTES HERE INVOLVED, WHICH DO NOT CONFLICT WITH ANY ACT OF
CONGRESS, AND WHICH ARE DESIGNED TO ENFORCE LOCAL LIQUOR POLICIES. 
VIRGINIA SEEMS TO THINK THAT, UNLESS ADEQUATE PRECAUTIONARY REGULATIONS
ARE DEVISED AND ENFORCED, LIQUOR SHIPMENTS OSTENSIBLY BEING TRANSPORTED
THROUGH HER TERRITORY TO A NEIGHBORING STATE COULD BE DIVERTED FOR
BOOTLEG PURPOSES CONTRARY TO HER LAWS.  SUCH PRECAUTIONARY REGULATIONS
MUST COME FROM EITHER VIRGINIA OR THE FEDERAL GOVERNMENT.  THE
LEGISLATURE OF VIRGINIA HAS PROVIDED THEM; THE CONGRESS HAS NOT.  THIS
COURT COULD INVALIDATE THE VIRGINIA REGULATIONS, BUT ONLY THE CONGRESS
COULD DEVISE AND SUBSTITUTE EFFECTIVE FEDERAL REGULATIONS TO TAKE THEIR
PLACE.  I THEREFORE AGREE WITH THE COURT "THAT VIRGINIA COULD CONCLUDE,
IN THE ABSENCE OF CONTRARY FEDERAL LEGISLATION, THAT SHE COULD NOT
SAFELY PERMIT THE TRANSPORTATION OF LIQUOR THROUGH HER TERRITORY BY
THOSE WHO CONCEDEDLY MEAN TO BREAK FEDERAL LAWS AND THE LAWS OF A
NEIGHBORING STATE." 

MR. JUSTICE FRANKFURTER, CONCURRING: 

1.  AFTER AS THOROUGH A CONSIDERATION AS IT EVER GAVE TO A PROBLEM,
THIS COURT, IN A LONG SERIES OF CASES BEGINNING WITH BOWMAN V. CHICAGO
& NORTH WESTERN RY. CO., 125 U.S. 465, DECIDED THAT INTOXICATING LIQUOR
IS A LEGITIMATE SUBJECT OF COMMERCE, AS MUCH SO AS CABBAGES AND
CANDLESTICKS, AND AS SUCH WITHIN THE PROTECTION OF THE COMMERCE
CLAUSE.  IN THE ABSENCE OF REGULATION BY CONGRESS, THE MOVEMENT OF
INTOXICANTS IN INTERSTATE COMMERCE LIKE THAT OF ALL OTHER MERCHANTABLE
GOODS WAS "FREE FROM ALL STATE CONTROL."  CLARK DISTILLING CO. V.
WESTERN MARYLAND RY. CO., 242 U.S. 311, 323, 327, CITING LEISY V.
HARDIN, 135 U.S. 100; IN RE RAHRER, 140 U.S. 545; VANCE V. VANDERCOOK
COMPANY (NO. 1), 170 U.S. 438; RHODES V. IOWA, 170 U.S. 412.  ALL OF
THESE DECISIONS ARE STILL ON THE BOOKS.  AND SO, BEFORE THE TWENTY
FIRST AMENDMENT DISPLACED THE EIGHTEENTH, MR. JUSTICE HOLMES WAS ABLE
TO SAY:  "I CANNOT FOR A MOMENT BELIEVE THAT APART FROM THE EIGHTEENTH
AMENDMENT SPECIAL CONSTITUTIONAL PRINCIPLES EXIST AGAINST STRONG
DRINK.  THE FATHERS OF THE CONSTITUTION SO FAR AS I KNOW APPROVED IT." 
KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149, 169. 

2.  IF THEN THE COMMERCE CLAUSE BE THE MEASURE OF STATE ACTION, SUCH
A REQUIREMENT AS THE POSTING OF A BOND FOR TRANSPORTATION OF GOODS FROM
WITHOUT VIRGINIA WOULD BE BEYOND VIRGINIA'S POWERS EVEN IF THE SHIPMENT
OF THE LIQUOR WERE FOR DELIVERY INTO VIRGINIA.  HEYMAN V. SOUTHERN RY.
CO., 203 U.S. 270; ADAMS EXPRESS CO. V. KENTUCKY, 206 U.S. 129.  CASES
LIKE CALIFORNIA V. THOMPSON, 313 U.S. 109, WHICH RECOGNIZE THE POWER OF
STATES TO REGULATE LOCAL ACTIVITIES BY TAXATION OR OTHERWISE RELATED
EVEN THOUGH THEY BE TO INTERSTATE COMMERCE, BUT NONE OF WHICH WAS
CONCERNED WITH RESTRICTING THE THROUGH-PASSAGE OF GOODS, LIQUOR OR ANY
OTHER, AFFORD NO BASIS FOR SUGGESTING THAT A STATE HAS POWER TO LICENSE
THE MOVEMENT OF GOODS IN INTERSTATE COMMERCE ON OPPRESSIVE OR
PROHIBITIVE TERMS.  A FORTIORI, THE COMMERCE CLAUSE WOULD PROHIBIT AND
NOT PERMIT SUCH LEGISLATION AS IS BEFORE US IN THE CASE OF LIQUOR
ARRIVING IN VIRGINIA FOR ULTIMATE DELIVERY WITHOUT.  HEYMAN V. HAYS,
236 U.S. 178. 

3.  IN THE LIGHT OF THE UNIFORM CURRENT OF DECISIONS UNDER THE
COMMERCE CLAUSE PRIOR TO THE TWENTY-FIRST AMENDMENT, THE VIRGINIA
LEGISLATION COULD NOT SURVIVE AS TO SHIPMENTS BOUND BEYOND ITS
BORDERS.  IF THE LEGISLATION IS VALID, AS I BELIEVE IT TO BE, IT MUST
BE SOLELY BECAUSE THE RANGE OF STATE CONTROL OVER LIQUOR HAS BEEN
EXTENDED BY THE TWENTY-FIRST AMENDMENT BEYOND THE PERMISSIVE BOUNDS OF
THE COMMERCE CLAUSE. 

4.  THE LEGISLATION IS SUSTAINABLE UNDER THE TWENTY-FIRST AMENDMENT
ON ONE OF TWO CONSIDERATIONS.  IT IS A NOTORIOUS FACT THAT STATE
PROHIBITION LAWS WERE TO NO SMALL MEASURE EVADED BY ILLICIT DIVERSION
OF LIQUOR CLAIMED TO BE TRANSPORTED THROUGH A STATE.  SINCE WE ARE
DEALING WITH A CONSTITUTIONAL AMENDMENT THAT SHOULD BE BROADLY AND
COLLOQUIALLY INTERPRETED, LIQUOR THAT ENTERS A STATE IN THE MANNER IN
WHICH THE LIQUOR HERE CAME INTO VIRGINIA MAY, WITHOUT UNDUE LIBERTY
WITH THE ENGLISH LANGUAGE, BE DEEMED TO BE FOR "DELIVERY" THERE EVEN
THOUGH IT IS CONSIGNED FOR ANOTHER STATE.  THE TWENTY-FIRST AMENDMENT
PROHIBITS THE "TRANSPORTATION OR IMPORTATION INTO ANY STATE  ...  OF
INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF," NOT WHEN THE
LIQUOR IS FOR DELIVERY AND USE BUT FOR "DELIVERY OR USE THEREIN."  IN
OTHER WORDS, LIQUOR NEED NOT BE INTENDED FOR CONSUMPTION IN A STATE TO
BE DEEMED TO BE IMPORTED INTO THE STATE AND THEREFORE SUBJECT TO
CONTROL BY THAT STATE.  THE DECISION IN COLLINS V. YOSEMITE PARK CO.,
304 U.S. 518, HAS NOTHING WHATEVER TO DO WITH THE RELATION OF THE
COMMERCE CLAUSE TO THE POWER GIVEN THE STATES BY THE TWENTY-FIRST
AMENDMENT TO CONTROL THE LIQUOR TRAFFIC.  THAT WAS A SUIT "TO RESTRAIN
ENFORCEMENT OF THE (CALIFORNIA) ALCOHOLIC BEVERAGE CONTROL ACT WITHIN
YOSEMITE PARK, ON THE THEORY THAT THE PARK IS WITHIN THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES."  ALL THAT WAS THERE DECIDED, AFTER
EXTENDED CONSIDERATION OF THE RELATION OF THE UNITED STATES TO THE
YOSEMITE PARK, WAS THAT THE UNITED STATES DID EXERCISE EXCLUSIVE
JURISDICTION OVER THE LAND CEDED BY CALIFORNIA TO THE FEDERAL
GOVERNMENT FOR PARK PURPOSES, AND THAT OF COURSE WHEN "EXCLUSIVE
JURISDICTION IS IN THE UNITED STATES, WITHOUT POWER IN THE STATE TO
REGULATE ALCOHOLIC BEVERAGES, THE XXI AMENDMENT IS NOT APPLICABLE." 
304 U.S. AT 538.  STATE CONTROL MUST YIELD TO SUPERIOR FEDERAL POWER,
BUT STATE CONTROL BY ONE STATE, SINCE THE TWENTY-FIRST AMENDMENT, NEED
NOT YIELD TO STATE CONTROL BY ANOTHER STATE. 

5.  IN THE ALTERNATIVE, SINCE VIRGINIA HAS POWER TO PROHIBIT THE
IMPORTATION OF LIQUOR WITHIN THAT COMMONWEALTH, IT MAY EFFECTUATE THAT
PURPOSE BY MEASURES DEEMED BY IT NECESSARY TO PREVENT EVASION OF ITS
POLICY BY PRETENDED THROUGH-SHIPMENTS.  IN A WORD, HAVING THE POWER TO
PROHIBIT LIQUOR FROM COMING INTO A STATE, A STATE MAY TAKE MEASURES
AGAINST FRUSTRATION OF THAT POWER BY RESORT TO THE CLAIM THAT LIQUOR
PASSING THROUGH A STATE ENJOYS THE PROTECTION OF THE COMMERCE CLAUSE. 
IF A STATE MAY TAKE THESE PROTECTIVE MEASURES, AS SURELY IT MAY, WHO IS
TO DECIDE WHAT MEASURES ARE NECESSARY FOR ITS PROTECTION?  IF A STATE
MAY ASK FOR THE POSTING OF A $1,000 BOND, MAY SHE NOT REQUIRE A $10,000
BOND?  IF A STATE SHOULD URGE THAT ITS EXPERIENCE SHOWS THAT ANY
REGULATORY SYSTEM IS INEFFECTIVE BECAUSE ILLICIT DIVERSION IS TOO
RESOURCEFUL FOR CONTROL BY MERE REGULATION AND REQUIRES PROHIBITION,
WHO IS TO SAY, IN VIEW OF THE HISTORY EMBEDDED IN THE TWENTY-FIRST
AMENDMENT, THAT A STATE MAY NOT FAIRLY ACT ON SUCH A JUDGMENT?  ARE NOT
THESE PECULIARLY POLITICAL, THAT IS LEGISLATIVE, QUESTIONS WHICH WERE
NOT MEANT BY THE TWENTY-FIRST AMENDMENT TO CONTINUE TO BE THE FRUITFUL
APPLE OF JUDICIAL DISCORD, AS THEY WERE BEFORE THE TWENTY-FIRST
AMENDMENT? 

6.  IT IS NOW SUGGESTED THAT A STATE MUST KEEP WITHIN "THE LIMITS OF
REASONABLE NECESSITY" AND THAT THIS COURT MUST JUDGE WHETHER OR NOT
VIRGINIA HAS ADOPTED "REGULATIONS REASONABLY NECESSARY TO ENFORCE ITS
LOCAL LIQUOR LAWS."  SUCH CANONS OF ADJUDICATION OPEN WIDE THE DOOR OF
CONFLICT AND CONFUSION WHICH HAVE IN THE PAST CHARACTERIZED THE LIQUOR
CONTROVERSIES IN THIS COURT AND IN NO SMALL MEASURE FORMED PART OF THE
UNEDIFYING HISTORY WHICH LED FIRST TO THE EIGHTEENTH AND THEN TO THE
TWENTY-FIRST AMENDMENT. 

7.  LESS THAN SIX YEARS AGO THIS COURT REJECTED THE IMPOSSIBLE TASK
OF DECIDING, INSTEAD OF LEAVING IT FOR LEGISLATURES TO DECIDE, WHAT
CONSTITUTES A "REASONABLE REGULATION" OF THE LIQUOR TRAFFIC.  THE ISSUE
WAS FAIRLY PRESENTED IN MAHONEY V. TRINER CORP., 304 U.S. 401.  AND
THIS WAS THE HOLDING: 

"WE ARE ASKED TO LIMIT THE POWER CONFERRED BY THE AMENDMENT SO THAT
ONLY THOSE IMPORTATIONS MAY BE FORBIDDEN WHICH, IN THE OPINION OF THE
COURT, VIOLATE A REASONABLE REGULATION OF THE LIQUOR TRAFFIC.  TO DO SO
WOULD, AS STATED IN THE YOUNG'S MARKET CASE, (299 U.S. 59) P. 62,
'INVOLVE NOT A CONSTRUCTION OF THE AMENDMENT, BUT A REWRITING OF IT.'" 
304 U.S. AT 404. 

THEREFORE IF A STATE, IN AID OF ITS POWERS OF PROHIBITION, MAY
REGULATE, WITHOUT LET OR HINDRANCE BY COURTS REGARDING THE
"REASONABLENESS" OF A REGULATION, IT MAY DO SO WHETHER THE LIQUOR IS
OPENLY CONSIGNED FOR CONSUMPTION WITHIN IT OR INTENDED FOR CONSUMPTION
THERE ALTHOUGH, BY SUBTERFUGE TOO DIFFICULT TO CHECK, NOMINALLY
DESTINED ELSEWHERE. 

8.  FULLER CONSIDERATION HAS THEREFORE CONVINCED ME THAT THE POWER
EXERCISED BY THE STATE IN DUCKWORTH V. ARKANSAS, 314 U.S. 390, AS WELL
AS IN THIS CASE MUST REST ON THE AUTHORITY GIVEN TO THE STATES BY THE
TWENTY-FIRST AMENDMENT.  AND SINCE VIRGINIA DERIVES THE POWER TO
LEGISLATE AS SHE DID FROM THE TWENTY-FIRST AMENDMENT, THE COMMERCE
CLAUSE DOES NOT COME INTO PLAY.  SO THIS COURT HAS TWICE RULED.  "SINCE
THE TWENTY-FIRST AMENDMENT, AS HELD IN THE YOUNG CASE (299 U.S. 59),
THE RIGHT OF A STATE TO PROHIBIT OR REGULATE THE IMPORTATION OF
INTOXICATING LIQUOR IS NOT LIMITED BY THE COMMERCE CLAUSE." 
INDIANAPOLIS BREWING CO. V. LIQUOR COMMISSION, 305 U.S. 391, 394; SEE
ALSO FINCH & CO. V. MCKITTRICK, 305 U.S. 395, 398. 
..END :













DAVIES WAREHOUSE CO. V. BOWLES, 321 U.S. 144 


NO. 112.  ARGUED NOVEMBER 18, 1943.  - DECIDED JANUARY 31, 1944.  - 137
F.2D 201, REVERSED. 


A PUBLIC WAREHOUSE IN CALIFORNIA, THE BUSINESS OF WHICH IS DECLARED BY
THE CONSTITUTION OF THE STATE TO BE THAT OF A PUBLIC UTILITY AND WHICH
IS SUBJECT TO COMPREHENSIVE REGULATION (INCLUDING THE FIXING OF RATES
AND CHARGES) UNDER THE PUBLIC UTILITIES ACT OF THE STATE, HELD A
"PUBLIC UTILITY" WITHIN THE MEANING OF THE PROVISO OF SEC. 302(C) OF
THE FEDERAL EMERGENCY PRICE CONTROL ACT, AND THEREBY EXEMPT FROM
REGULATION UNDER THAT ACT.  PP. 152, 156. 

DAVIES WAREHOUSE CO. V. BOWLES, PRICE ADMINISTRATOR. 

CERTIORARI TO THE UNITED STATES EMERGENCY COURT OF APPEALS. 

CERTIORARI, 320 U.S. 721, TO REVIEW THE DISMISSAL OF A COMPLAINT IN A
PROCEEDING TO HAVE SET ASIDE, SO FAR AS APPLICABLE TO THE COMPLAINANT,
REGULATIONS PROMULGATED BY THE PRICE ADMINISTRATOR UNDER THE EMERGENCY
PRICE CONTROL ACT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, DAVIES WAREHOUSE COMPANY, IS INCORPORATED UNDER THE
LAWS OF CALIFORNIA AND CONDUCTS A PUBLIC WAREHOUSE IN LOS ANGELES.  ITS
BUSINESS IS DECLARED TO BE THAT OF A PUBLIC UTILITY BOTH BY THE
CONSTITUTION OF CALIFORNIA  FN1  AND ITS PUBLIC UTILITIES ACT.  FN2
THE ACT SUBJECTS TO REGULATION BY THE RAILROAD COMMISSION ALL
WAREHOUSES WHICH SERVE THE PUBLIC GENERALLY FOR COMPENSATION.  SEC. 2
1/2.  NEW WAREHOUSES MAY BE ESTABLISHED ONLY AFTER OBTAINING
CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY, WHICH THE COMMISSION
MAY REFUSE OR CONDITION AND MAY SUSPEND OR REVOKE AT ANY TIME FOR
CAUSE.  SEC. 50 1/2.  PETITIONER MUST GRANT NONDISCRIMINATORY AND EQUAL
RATES TO EVERYONE, AND IT MAY NOT ALTER ANY EXISTING RATE OR CHARGE
WITHOUT PERMISSION.  SECS. 19, 15.  THE COMMISSION UPON ITS OWN MOTION
OR UPON COMPLAINT MAY DETERMINE "THE JUST, REASONABLE AND SUFFICIENT
RATES" AND FIX THE SAME BY ORDER.  SEC. 32.  PETITIONER IS REQUIRED TO
MAKE PERIODIC REPORTS AND IS SUBJECT TO NUMEROUS RESTRICTIONS AND
DISABILITIES.  SECS. 29, 51, 52, 75, 76, ET AL. 

SEVERAL PUBLIC WAREHOUSES, INCLUDING THE ONE BEFORE US, MADE
APPLICATION TO THE COMMISSION FOR GENERAL RATE INCREASES.  THE
COMMISSION GAVE A PUBLIC HEARING IN FEBRUARY 1942.  FROM UNDISPUTED
TESTIMONY IT APPEARED THAT:  NOTICE OF HEARING HAD BEEN SENT TO OVER
3,000 CUSTOMERS AND NO ONE APPEARED IN OPPOSITION; RATES HAD NOT BEEN
ADVANCED SINCE 1938; WAGES, HOWEVER, HAD BEEN ADVANCED ON FOUR
DIFFERENT OCCASIONS; MATERIALS AND SUPPLIES AND WAGES OF CLERICAL AND
SUPERVISORY EMPLOYEES HAD ALSO INCREASED; OVERALL COSTS OF OPERATION
HAD RISEN DURING THE PERIOD 20-26 PER CENT.  ON MAY 12, 1942, THE
COMMISSION AUTHORIZED A GENERAL 15 PER CENT ADVANCE WHICH, IT SAID,
"WILL PERMIT APPLICANTS TO INCREASE THEIR RATES TO REIMBURSE THEM IN
PART FOR THEIR ADDED LABOR EXPENSE."  THE PERMISSION WAS SO
CONDITIONED, HOWEVER, THAT THE REASONABLENESS OF ANY PARTICULAR RATE
COULD BE ATTACKED BY ANY CUSTOMER, EITHER BY WAY OF REPARATION
PROCEEDING, FOR WHICH THE ACT MAKES PROVISION, OR OTHERWISE.  THE
EFFECTIVE DATE OF THE NEW RATES WAS SET BY THE COMMISSION AS MAY 22,
1942. 

IN THE MEANTIME THE UNITED STATES PRICE ADMINISTRATOR, ACTING UNDER
THE EMERGENCY PRICE CONTROL ACT,  FN3  ON APRIL 28, 1942 ISSUED A
GENERAL MAXIMUM PRICE REGULATION.  THE EFFECT OF THE FEDERAL REGULATION
AND LATER AMENDMENTS WOULD HAVE BEEN TO PROHIBIT PETITIONER AFTER JULY
1, 1942 FROM CHARGING THE RATE AUTHORIZED BY THE CALIFORNIA RAILROAD
COMMISSION. 

THIS FEDERAL ACT PROVIDES THAT "NOTHING IN THIS ACT SHALL BE
CONSTRUED TO AUTHORIZE THE REGULATION OF  ...  (2) RATES CHARGED BY ANY
COMMON CARRIER OR OTHER PUBLIC UTILITY."  FN4 PETITIONER, ASSERTING
ITSELF TO BE WITHIN THIS EXEMPTION, MADE TIMELY PROTEST TO THE PRICE
ADMINISTRATOR, WHICH WAS DENIED.  IT THEN FILED A COMPLAINT WITH THE
UNITED STATES EMERGENCY COURT OF APPEALS, ON WHICH THE ACT CONFERS
EXCLUSIVE ORIGINAL JURISDICTION TO DETERMINE THE VALIDITY OF
REGULATIONS,  FN5  ASKING IT TO SET ASIDE THE GENERAL MAXIMUM PRICE
REGULATIONS IN SO FAR AS THEY PURPORT TO REGULATE ITS CHARGES.  THE
EMERGENCY COURT OF APPEALS DISMISSED THE COMPLAINT.  IMPORTANCE OF THE
CONSTRUCTION OF THE ACT TO ITS ADMINISTRATION LED US TO GRANT
CERTIORARI. 

CONGRESS, IN OMITTING TO DEFINE "PUBLIC UTILITY" AS USED IN THE ACT,
LEFT TO THE ADMINISTRATOR AND THE COURTS A TASK OF UNEXPECTED
DIFFICULTY.  USE OF THAT TERM IN A CONTEXT OF GENERALITY WEARS AN
APPEARANCE OF PRECISION WHICH PROVES ILLUSORY WHEN EXACT APPLICATION
BECOMES NECESSARY.  RELEVANT AUTHORITIES AND CONSIDERATIONS ARE
NUMEROUS AND EQUIVOCAL, AND DIFFERENT PLAUSIBLE DEFINITIONS RESULT FROM
A MERE SHIFT OF EMPHASIS.  IT MAY BE CONTENDED THAT THE EXEMPTION RUNS
IN FAVOR OF ANY BUSINESS GENERALLY AND TRADITIONALLY REGARDED AS A
UTILITY, IRRESPECTIVE OF ACTUAL STATE REGULATION.  OR IT MAY BE URGED
TO INCLUDE ANY ENTERPRISE ACTUALLY REGULATED AS ARE UTILITIES,
REGARDLESS OF TRADITIONAL CLASSIFICATION.  OR IT MAY BE SAID TO EXTEND
ONLY TO THOSE BUSINESSES WHERE ACTUAL UTILITY REGULATION EXISTS ALONG
WITH GENERAL AND TRADITIONAL UTILITY CHARACTER. 

THE EMERGENCY COURT OF APPEALS WEIGHED THE CONFLICTING FACTORS IN
THOROUGH OPINIONS AND DIVIDED AS TO RESULT.  FN6  JUDGES MARIS AND
MAGRUDER GAVE LITTLE WEIGHT TO THE EXISTENCE OF ACTUAL REGULATION AND
HELD THE PHRASE TO COMPREHEND ENTERPRISES OF THE GENERAL UTILITY TYPE,
AMONG WHICH THEY THOUGHT THIS WAREHOUSE HAD NO PLACE.  THEY HELD THAT
THE FEDERAL PRICE REGULATION SUPERSEDED THAT OF THE STATE, BUT SAID,
"THIS IS ONE OF THOSE UNFORTUNATE CASES WHERE DOUBTS WOULD REMAIN
WHICHEVER WAY THE CASE WAS DECIDED"  - A RESERVATION WE SHARE.  CHIEF
JUDGE VINSON DECLARED THAT THIS PUBLIC WAREHOUSE POSSESSES THE BASIC
INDICIA OF A PUBLIC UTILITY AND IN ADDITION HAS ITS RATES FIXED BY AN
AGENCY OF THE STATE, AND UNDER THESE CIRCUMSTANCES MUST BE CONSIDERED A
PUBLIC UTILITY WITHIN THE MEANING OF THE ACT.  HE THOUGHT THE STATE
REGULATION SHOULD PREVAIL OVER THAT OF THE FEDERAL PRICE
ADMINISTRATOR. 

IN MUNN V. ILLINOIS, 94 U.S. 113(1877), THIS COURT RECOGNIZED THAT
THE BUSINESS OF PUBLIC WAREHOUSING IS "AFFECTED WITH A PUBLIC INTEREST"
AND THAT ITS REGULATION BY THE STATE IS APPROPRIATE AND
CONSTITUTIONALLY PERMISSIBLE.  CF. BUDD V. NEW YORK, 143 U.S. 517,
544.  TWENTY-ONE STATES REGULATE WAREHOUSES IN SOME RESPECTS.  FN7
THREE STATES INCLUDE WAREHOUSES IN THEIR STATUTORY DEFINITION OF PUBLIC
UTILITIES,  FN8  AND EIGHT INCLUDE LIMITED TYPES OF WAREHOUSES.  FN9
FORTY-SEVEN STATES HAVE ADOPTED THE UNIFORM WAREHOUSE RECEIPTS ACT,
WHICH GIVES WAREHOUSE RECEIPTS LEGAL STANDING SOMEWHAT SIMILAR TO THAT
OF A COMMON CARRIER'S BILL OF LADING.  FN10 

WE CANNOT, THEREFORE, ASSUME THAT CONGRESS WAS UNAWARE THAT A GENERAL
STATUTORY REFERENCE TO "PUBLIC UTILITIES" MIGHT WELL BE TAKEN AT LEAST
IN SOME STATES TO COMPREHEND PUBLIC WAREHOUSES.  BUT CONGRESS DID NOT
SEE FIT TO EMPLOY THAT PRECISION OF DEFINITION WHICH IT HAS USED WHEN
IT DESIRED TO MAKE SURE THAT ITS CLASSIFICATION OF PUBLIC UTILITIES FOR
FEDERAL PURPOSES WOULD DEPEND UPON THE NATURE OF THEIR ACTIVITIES
UNINFLUENCED BY ANY STATE POLICY.  FN11  LEGISLATIVE HISTORY IS
AMBIGUOUS, AND IN NO INSTANCE WAS ATTENTION DIRECTED TO THE PARTICULAR
PROBLEM PRESENTED HERE AS TO THE SCOPE OF THE TERM "PUBLIC UTILITY." 
BUT THE PHRASE WAS USED TO MEASURE INCLUSIONS AS WELL AS EXEMPTIONS AND
IT SEEMS TO HAVE BEEN EMPLOYED IN A PRACTICAL RATHER THAN LEGALISTIC
SENSE.  AN EFFORT WAS MADE IN THE SENATE TO INSERT A PROVISION THAT
PUBLIC UTILITY RATES SHOULD NOT BE INCREASED WITHOUT CONSENT OF THE
PRESIDENT.  FN12  THAT PROPOSAL WAS REJECTED, HOWEVER, AND A PROVISION
WAS SUBSTITUTED WHICH REQUIRED ANY PUBLIC UTILITY WHICH ASKED FOR AN
INCREASE IN RATES TO NOTIFY THE PRESIDENT AND TO ASSENT TO THE
APPEARANCE OF SUCH AGENT AS THE PRESIDENT MAY DESIGNATE TO APPEAR IN
BEHALF OF THE CONSUMING PUBLIC BEFORE THE APPROPRIATE RAILROAD OR
PUBLIC UTILITY COMMISSION, BE IT A STATE, FEDERAL, OR MUNICIPAL
COMMISSION.  FN13  IT IS DIFFICULT TO BELIEVE THAT A DIFFERENT SCOPE
WAS INTENDED TO BE GIVEN TO THE SAME WORDS IN DIFFERENT SECTIONS OF THE
LEGISLATION.  THE USE OF THE SAME GENERIC TERM IN THESE DIFFERENT
CONTEXTS INDICATES THAT IT HAD NO NARROWER CONNOTATION AND SHOULD
RECEIVE NO STRICTER INTERPRETATION IN THE EXEMPTION MERELY BECAUSE USED
TO DEFINE AN EXEMPTION. 

LEGISLATIVE HISTORY IS UNEQUIVOCAL IN ITS SHOWING THAT RATES ALREADY
SUBJECT TO STATE REGULATION AS PUBLIC UTILITY RATES WERE NOT CONSIDERED
IN NEED OF FURTHER CONTROL.  MR. LEON HENDERSON, ONE OF THE AUTHORS OF
THE BILL AND THE FIRST PRICE ADMINISTRATOR, GAVE AS REASONS FOR
EXEMPTING UTILITIES THAT THEY SEEMED TO BE UNDER AN ADEQUATE SYSTEM OF
STATE REGULATION; FN14  THAT THIS WAS AN AREA NOT LIKELY TO GIVE
DIFFICULTY OR TO CAUSE, SO FAR AS COULD THEN BE SEEN, ANY INFLATIONARY
TREND; THAT UTILITIES HAD PROBLEMS PECULIAR TO THEMSELVES AND NO
FURTHER REGULATION SEEMED NECESSARY; FN15  AND THAT HE HAD FOUND THE
AGENCIES IN CONTROL OF UTILITY RATES "JUST AS EARNEST AS WE ARE ABOUT
KEEPING THOSE COSTS DOWN."  FN16 

UNDER THESE CIRCUMSTANCES THE REASONABLE VIEW APPEARS TO BE THAT
CONGRESS BY THE TERM "PUBLIC UTILITIES" EXEMPTED THOSE WHOSE CHARGES
ALREADY WERE REGULATED AS PUBLIC UTILITIES AND HENCE WERE NOT PROBABLE
SOURCES OF INFLATIONARY DANGERS.  IT MAY BE AND PROBABLY IS THE CASE
THAT IN ITS RATE REGULATION THE CALIFORNIA COMMISSION WILL TAKE ACCOUNT
OF DIFFERENT FACTORS AND HAVE DIFFERENT OBJECTIVES THAN DOES THE
FEDERAL PRICE ADMINISTRATOR.  THAT MIGHT HAVE APPEALED TO CONGRESS AS A
REASON FOR NOT EXEMPTING UTILITIES AT ALL, BUT IT HARDLY HELPS DEFINE
THE LIMITS OF THE EXEMPTION, FOR THAT OBJECTION IS AS COGENT AGAINST
WHAT ADMITTEDLY IS INCLUDED AS AGAINST THAT WHICH IS LEFT IN DOUBT. 

WE THINK CONGRESS DESIRED TO DEPART FROM THE TRADITIONAL PARTITIONING
OF FUNCTIONS BETWEEN STATE AND FEDERAL GOVERNMENT ONLY SO FAR AS
REQUIRED TO ERECT EMERGENCY BARRIERS AGAINST INFLATION.  NO QUESTION AS
TO THE POWER OF CONGRESS TO REACH AND REGULATE THIS BUSINESS, SHOULD IT
FIND IT NECESSARY TO DO SO, HAS BEEN RAISED HERE.  BUT AS MATTER OF
POLICY CONGRESS MAY WELL HAVE DESIRED TO AVOID CONFLICT OR OCCASIONS
FOR CONFLICT BETWEEN FEDERAL AGENCIES AND STATE AUTHORITY WHICH ARE
DETRIMENTAL TO GOOD ADMINISTRATION AND TO PUBLIC ACCEPTANCE OF AN
EMERGENCY SYSTEM OF PRICE CONTROL THAT MIGHT FOUNDER IF FRICTION WITH
PUBLIC AUTHORITIES BE ADDED TO THE DIFFICULTIES OF BRINGING PRIVATE
SELF-INTEREST UNDER CONTROL.  FN17  WHERE CONGRESS HAS NOT CLEARLY
INDICATED A PURPOSE TO PRECIPITATE CONFLICT, WE SHOULD BE RELUCTANT TO
DO SO BY DECISION.  FN18  IN VIEW OF ASSURANCES TO CONGRESS THAT THE
EVIL WOULD PROCEED ONLY IN A MINOR DEGREE, IF AT ALL, FROM PUBLIC
UTILITIES ALREADY UNDER STATE PRICE CONTROL, WE THINK CONGRESS DID NOT
INTEND, AND CERTAINLY HAS GIVEN NO CLEAR INDICATION THAT IT DID INTEND,
TO SUPERSEDE THE POWER OF A STATE REGULATORY COMMISSION, EXERCISING
COMPREHENSIVE CONTROL OVER THE PRICES OF A BUSINESS APPROPRIATELY
CLASSIFIED AS A UTILITY.  CLASSIFICATION BY CALIFORNIA OF THE PUBLIC
WAREHOUSE BUSINESS AS A UTILITY IS NOT NOVEL, SURPRISING, OR
CAPRICIOUS.  THE REGULATION IMPOSED IS NOT MERELY NOMINAL OR
SUPERFICIAL BUT APPEARS TO BE PENETRATING AND COMPLETE.  THEREFORE, WE
WOULD HAVE LITTLE HESITATION IN HOLDING THAT PETITIONER'S PUBLIC
WAREHOUSE UNDER THE CIRCUMSTANCES IS A PUBLIC UTILITY WITHIN THE
EXEMPTION OF THE PRICE CONTROL ACT, BUT FOR CERTAIN PRACTICAL
OBJECTIONS TO THAT INTERPRETATION, URGED ON BEHALF OF THE ADMINISTRATOR
WITH AN EARNESTNESS WHICH DESERVES, IN VIEW OF THE DIFFICULTIES AND
IMPORTANCE OF HIS TASK, CAREFUL EXAMINATION. 

1.  IT IS URGED THAT IF THE STATUS OF AN INDUSTRY UNDER STATE LAW IS
TO BE CONSIDERED, THE ADMINISTRATOR "WOULD HAVE TO FACE THE QUESTION
WHETHER THE PARTICULAR BUSINESS CONCERNED WAS SUFFICIENTLY 'AFFECTED
WITH A PUBLIC INTEREST' CONSTITUTIONALLY TO JUSTIFY THE TYPE OF LEGAL
OBLIGATION WHICH THE STATE IMPOSES."  THE ARGUMENT, IN SHORT, IS THAT
THE ADMINISTRATOR WOULD HAVE TO DECIDE WHETHER THE STATE REGULATION IS
CONSTITUTIONAL BEFORE HE SHOULD RECOGNIZE IT.  WE CANNOT GIVE WEIGHT TO
THIS VIEW OF HIS FUNCTIONS, WHICH WE THINK IT UNDULY MAGNIFIES.  STATE
STATUTES, LIKE FEDERAL ONES, ARE ENTITLED TO THE PRESUMPTION OF
CONSTITUTIONALITY UNTIL THEIR INVALIDITY IS JUDICIALLY DECLARED. 
CERTAINLY NO POWER TO ADJUDICATE CONSTITUTIONAL ISSUES IS CONFERRED ON
THE ADMINISTRATOR.  COLLUSION BETWEEN A STATE AND A FAVORED INDUSTRY TO
IMPOSE FORMS OF LOCAL REGULATION AS A SHIELD AGAINST FEDERAL CONTROL
MIGHT BE CONCEIVABLE AND IF SUCH A SHAM OCCURRED THE ADMINISTRATOR
COULD PERHAPS CHALLENGE ITS EFFECTIVENESS TO SUPPORT AN EXEMPTION.  BUT
IT MORE NEARLY ACCORDS WITH EXPERIENCE TO ASSUME THAT AN INDUSTRY DOES
NOT SUBMIT TO PRICE REGULATION UNTIL IT HAS EXPLORED ALL POSSIBLE
CONSTITUTIONAL OBJECTIONS AND LITIGATED HOPEFUL ONES.  WE THINK THE
ADMINISTRATOR WILL NOT BE REMISS IN HIS DUTIES IF HE ASSUMES THE
CONSTITUTIONALITY OF STATE REGULATORY STATUTES, UNDER BOTH STATE AND
FEDERAL CONSTITUTIONS, IN THE ABSENCE OF A CONTRARY JUDICIAL
DETERMINATION. 

2.  IT ALSO IS OBJECTED THAT IF WE CONSIDER THE STATUS OF AN INDUSTRY
UNDER STATE LAW, THE PRICE ADMINISTRATOR "WOULD HAVE TO SCRUTINIZE AND
DIFFERENTIATE MANY KINDS OF FRANCHISES.  THUS THE ADMINISTRATOR, AS
INCIDENT TO THE TASK OF PRICE CONTROL, WOULD BE CALLED UPON TO
DETERMINE IN ANY NUMBER OF PARTICULAR INSTANCES QUESTIONS OF STATE LAW
WHICH REQUIRE THE MOST PAINSTAKING EXAMINATION OF STATUTES AND
DECISIONS."  WE ARE NOT PREPARED TO DENY THAT IN SOME DEGREE THIS WILL
BE TRUE, FOR WE DO NOT HOLD THAT ALL WAREHOUSES, OR EVEN THAT ALL
WAREHOUSES REGULATED IN SOME ASPECTS, COME WITHIN THE EXEMPTION.  WE
THINK THE ADMINISTRATOR WILL HAVE TO FORM JUDGMENTS AND THAT THEY WILL
BE JUDGMENTS OF SOME DIFFICULTY.  SIMPLICITY OF ADMINISTRATION IS A
MERIT THAT DOES NOT INHERE IN A FEDERAL SYSTEM OF GOVERNMENT, AS IT IS
CLAIMED TO DO IN A UNITARY ONE.  A FEDERAL SYSTEM MAKES A MERIT,
INSTEAD, OF THE VERY LOCAL AUTONOMY IN WHICH COMPLEXITIES ARE
INHERENT.  NOR WOULD THE INTERPRETATION ADVOCATED BY THE ADMINISTRATOR
AVOID THE NECESSITY OF ASCERTAINING AND CONSIDERING RIGHTS THOUGHT TO
BE POSSESSED UNDER LOCAL LAWS AND NOT LIKELY TO BE YIELDED READILY. 
ONE EFFECT OF THE ADMINISTRATOR'S INTERPRETATION WOULD BE TO POSTPONE
STUDY OF LOCAL LAWS FROM CONSIDERATION IN CONNECTION WITH WISE
ADMINISTRATION TO THE TIME OF LITIGATION, AS IN THIS CASE.  LOCAL
INSTITUTIONS, CUSTOMS, AND POLICIES WILL NOT BE OVERRIDDEN WITHOUT
FIGHTING FOR CONSIDERATION.  THE EXISTENCE AND FORCE AND FUNCTION OF
ESTABLISHED INSTITUTIONS OF LOCAL GOVERNMENT ARE ALWAYS IN THE
CONSCIOUSNESS OF LAWMAKERS AND, WHILE THEIR WEIGHT MAY VARY, THEY MAY
NEVER BE COMPLETELY OVERLOOKED IN THE TASK OF INTERPRETATION.  AT A
TIME WHEN GREAT MEASURES OF CONCENTRATION OF DIRECTION ARE CONCEDEDLY
NECESSARY, IT MAY BE THOUGHT MORE FARSIGHTED TO AVOID PARALYZING OR
EXTINGUISHING LOCAL INSTITUTIONS WHICH DO NOT SERIOUSLY CONFLICT WITH
THE CENTRAL GOVERNMENT'S PLACE.  CONGRESS HAS GIVEN NO INDICATION THAT
IT WOULD DRAW ALL SUCH STATE AUTHORITY INTO THE VORTEX OF THE WAR
POWER.  NOR SHOULD WE RUSH THE TREND TO CENTRALIZATION WHERE CONGRESS
HAS NOT.  IT COULD NEVER BE MORE APPROPRIATE THAN NOW TO HEED THE MAXIM
REITERATED RECENTLY BY THE COURT THAT "THE EXTENSION OF FEDERAL CONTROL
INTO THESE TRADITIONAL LOCAL DOMAINS IS A 'DELICATE EXERCISE OF
LEGISLATIVE POLICY IN ACHIEVING A WISE ACCOMMODATION BETWEEN THE NEEDS
OF CENTRAL CONTROL AND THE LIVELY MAINTENANCE OF LOCAL INSTITUTIONS.'" 
YONKERS V. UNITED STATES, 320 U.S. 685, 690; PALMER V. MASSACHUSETTS,
308 U.S. 79, 84.  AT LEAST IN THE ABSENCE OF A CONGRESSIONAL MANDATE TO
THAT EFFECT, WE CANNOT ADOPT A RULE OF CONSTRUCTION, OTHERWISE
UNJUSTIFIED, TO RELIEVE FEDERAL ADMINISTRATORS OF WHAT WE MAY WELL
BELIEVE IS A SUBSTANTIAL BURDEN BUT ONE IMPLIED BY THE TERMS OF THE
LEGISLATION WHEN VIEWED AGAINST THE BACKGROUND OF OUR FORM OF
GOVERNMENT. 

3.  IT ALSO IS CONTENDED THAN AN INTERPRETATION MUST PREVAIL AS
MATTER OF PRINCIPLE WHICH WILL GIVE THE EXEMPTION A GENERAL AND UNIFORM
OPERATION IN ALL STATES IRRESPECTIVE OF LOCAL LAW.  IT IS, OF COURSE,
TRUE THAT UNIFORM OPERATION OF A FEDERAL LAW IS A DESIRABLE END AND,
OTHER THINGS BEING EQUAL, WE OFTEN HAVE INTERPRETED STATUTES TO ACHIEVE
IT.  FN19  BUT IN NO CASE RELIED UPON DID WE ACHIEVE UNIFORMITY AT THE
COST OF ESTABLISHING OVERLAPPING AUTHORITY OVER THE SAME SUBJECT MATTER
IN THE STATE AND IN THE FEDERAL GOVERNMENT.  WHEN WE DO AT TIMES ADOPT
FOR APPLICATION OF FEDERAL LAWS WITHIN A STATE A RULE DIFFERENT FROM
THAT USED BY A STATE IN ADMINISTERING ITS LAWS, THE TWO RULES MAY
SUBSIST WITHOUT CONFLICT, EACH REIGNING IN ITS OWN REALM.  IT IS A MUCH
MORE SERIOUS THING TO ADOPT A RULE OF CONSTRUCTION, AS WE ARE ASKED TO
DO HERE, WHICH PRECLUDES THE EXECUTION OF STATE LAWS BY STATE AUTHORITY
IN A MATTER NORMALLY WITHIN STATE POWER.  THE GREAT BODY OF LAW IN THIS
COUNTRY WHICH CONTROLS ACQUISITION, TRANSMISSION, AND TRANSFER OF
PROPERTY, AND DEFINES THE RIGHTS OF ITS OWNERS IN RELATION TO THE STATE
OR TO PRIVATE PARTIES, IS FOUND IN THE STATUTES AND DECISIONS OF THE
STATE.  THE CUSTOM OF RESORTING TO THEM TO GIVE MEANING AND CONTENT TO
FEDERAL STATUTES IS TOO OLD AND ITS USE TOO DIVERSIFIED TO PERMIT US TO
SAY THAT CONSIDERATIONS OF NATION-WIDE UNIFORMITY MUST PREVAIL IN A
PARTICULAR CASE OVER OUR JUDGMENT THAT IT IS OUT OF HARMONY WITH OTHER
OBJECTIVES MORE IMPORTANT TO THE LEGISLATIVE PURPOSE.  FN20  WHAT
CONTENT WE SHOULD GIVE TO THE EXEMPTION IN THE CASE OF A CONVENTIONAL
UTILITY NOT SUBJECT TO A STATE REGULATORY STATUTE OR SUBJECT ONLY TO
PARTIAL REGULATION IS, OF COURSE, NOT BEFORE US. 

4.  LASTLY, IT IS CONTENDED THAT WE SHOULD ACCEPT THE ADMINISTRATOR'S
VIEW IN DEFERENCE TO ADMINISTRATIVE CONSTRUCTION.  THE ADMINISTRATIVE
RULING IN THIS CASE WAS NO SOONER MADE THAN CHALLENGED.  WE CANNOT BE
CERTAIN HOW FAR IT WAS DETERMINED BY THE CONSIDERATIONS ADVANCED,
MISTAKENLY AS WE THINK, IN ITS DEFENSE IN THIS CASE.  IT HAS HARDLY
SEASONED OR BROADENED INTO A SETTLED ADMINISTRATIVE PRACTICE.  IF
CONGRESS HAD DEEMED IT NECESSARY OR EVEN APPROPRIATE THAT THE
ADMINISTRATOR'S ORDER SHOULD IN EFFECT BE FINAL IN CONSTRUING THE SCOPE
OF THE NATIONAL PRICEFIXING POLICY, IT WOULD NOT HAVE BEEN AT A LOSS
FOR WORDS TO SAY SO.  WE DO NOT THINK IT SHOULD OVERWEIGH THE
CONSIDERATIONS WE HAVE SET FORTH AS TO THE PROPER CONSTRUCTION OF THE
STATUTE. 

WE HOLD THAT THE PETITIONER'S BUSINESS IS THAT OF A PUBLIC UTILITY
WITHIN THE EXEMPTION OF THE ACT, AND THE JUDGMENT BELOW IS ACCORDINGLY
REVERSED. 

FN1  "THE LEGISLATURE SHALL PASS LAWS FOR THE REGULATION AND
LIMITATION OF THE CHARGES FOR SERVICES PERFORMED AND COMMODITIES
FURNISHED BY TELEGRAPH AND GAS CORPORATIONS, AND THE CHARGES BY
CORPORATIONS OR INDIVIDUALS FOR STORAGE AND WHARFAGE, IN WHICH THERE IS
A PUBLIC USE  ...  " CALIFORNIA CONSTITUTION, ART. IV, SEC. 33. 

"EVERY PRIVATE CORPORATION, AND EVERY INDIVIDUAL OR ASSOCIATION OF
INDIVIDUALS, OWNING, OPERATING, MANAGING, OR CONTROLLING ANY COMMERCIAL
RAILROAD, INTERURBAN RAILROAD, STREET RAILROAD, CANAL, PIPE LINE,
PLANT, OR EQUIPMENT, OR ANY PART OF SUCH RAILROAD, CANAL, PIPE LINE,
PLANT OR EQUIPMENT WITHIN THIS STATE, FOR THE TRANSPORTATION OR
CONVEYANCE OF PASSENGERS, OR EXPRESS MATTER, OR FREIGHT OF ANY KIND,
INCLUDING CRUDE OIL, OR FOR THE TRANSMISSION OF TELEPHONE OR TELEGRAPH
MESSAGES, OR FOR THE PRODUCTION, GENERATION, TRANSMISSION, DELIVERY OR
FURNISHING OF HEAT, LIGHT, WATER OR POWER OR FOR THE FURNISHING OF
STORAGE OR WHARFAGE FACILITIES, EITHER DIRECTLY OR INDIRECTLY, TO OR
FOR THE PUBLIC, AND EVERY COMMON CARRIER, IS HEREBY DECLARED TO BE A
PUBLIC UTILITY SUBJECT TO SUCH CONTROL AND REGULATION BY THE RAILROAD
COMMISSION AS MAY BE PROVIDED BY THE LEGISLATURE  ...  "  CALIFORNIA
CONSTITUTION, ART. XII, SEC. 23. 

FN2  CALIFORNIA GEN. LAWS (DEERING, 1937) ACT 6386, SEC. 2(DD). 

FN3  56 STAT. 23, 50 U.S.C. (SUPP. II, 1942) SEC. 901 ET SEQ. 

FN4  SEC. 302(C), 50 U.S.C. (SUPP. II, 1942) SEC. 942(C), READS:
"THE TERM 'COMMODITY' MEANS COMMODITIES, ARTICLES, PRODUCTS, AND
MATERIALS (EXCEPT MATERIALS FURNISHED FOR PUBLICATION BY ANY PRESS
ASSOCIATION OR FEATURE SERVICE, BOOKS, MAGAZINES, MOTION PICTURES,
PERIODICALS AND NEWSPAPERS, OTHER THAN AS WASTE OR SCRAP), AND IT ALSO
INCLUDES SERVICES RENDERED OTHERWISE THAN AS AN EMPLOYEE IN CONNECTION
WITH THE PROCESSING, DISTRIBUTION, STORAGE, INSTALLATION, REPAIR, OR
NEGOTIATION OR PURCHASES OR SALES OF A COMMODITY, OR IN CONNECTION WITH
THE OPERATION OF ANY SERVICE ESTABLISHMENT FOR THE SERVICING OF A
COMMODITY: PROVIDED, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO
AUTHORIZE THE REGULATION OF (1) COMPENSATION PAID BY AN EMPLOYER TO ANY
OF HIS EMPLOYEES, OR (2) RATES CHARGED BY ANY COMMON CARRIER OR OTHER
PUBLIC UTILITY, OR (3) RATES CHARGED BY ANY PERSON ENGAGED IN THE
BUSINESS OF SELLING OR UNDERWRITING INSURANCE, OR (4) RATES CHARGED BY
ANY PERSON ENGAGED IN THE BUSINESS OF OPERATING OR PUBLISHING A
NEWSPAPER, PERIODICAL, OR MAGAZINE, OR OPERATING A RADIO-BROADCASTING
STATION, A MOTION-PICTURE OR OTHER THEATER ENTERPRISE, OR OUTDOOR
ADVERTISING FACILITIES, OR (5) RATES CHARGED FOR ANY PROFESSIONAL
SERVICES." 

FN5  SEC. 204(D), 50 U.S.C. (SUPP. II, 1942) SEC. 924(D), PROVIDES:
"  ...  THE EMERGENCY COURT OF APPEALS, AND THE SUPREME COURT UPON
REVIEW OF JUDGMENTS AND ORDERS OF THE EMERGENCY COURT OF APPEALS, SHALL
HAVE EXCLUSIVE JURISDICTION TO DETERMINE THE VALIDITY OF ANY REGULATION
OR ORDER ISSUED UNDER SECTION 2, OF ANY PRICE SCHEDULE EFFECTIVE IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 206, AND OF ANY PROVISION OF
ANY SUCH REGULATION, ORDER, OR PRICE SCHEDULE.  ...  " 

FN6  137 F.2D 201. 

FN7  ARIZONA CODE (1939) SEC. 52-901; ARKANSAS ACTS 1935, ACT 83;
CALIFORNIA GEN. LAWS (DEERING, 1937) ACT 6386, SEC. 2 ET SEQ.; IDAHO
CODE ANN. (1932) SEC. 59-128; ILLINOIS REV. STAT. (BAR ASSN. ED. 1943)
C. 111 2/3, SEC. 10 ET SEQ., C. 114, SEC. 189 ET SEQ.; INDIANA STAT.
ANN. (BURNS, 1933) SEC. 54-105 ET SEQ.; KANSAS GEN. STAT. (1935) SEC.
34-224 ET SEQ.; MAINE REV. STAT. (1930) C. 62, SEC. 15 ET SEQ.;
MINNESOTA STAT. (1941) C. 233; MISSOURI REV. STAT. ANN. (1941) SEC.
14685.1 ET SEQ.; NEBRASKA COMP. STAT. (SUPP. 1941) C. 88, SEC. 219 ET
SEQ.; NEVADA COMP. LAWS (1929) SEC. 6106 ET SEQ.; NORTH CAROLINA CODE
ANN. (1939) SEC. 5124, LAWS 1941, C. 291; NORTH DAKOTA COMP. LAWS
(SUPP. 1925) SEC. 4609, C. 2, ET SEQ., LAWS 1931, C. 227; OKLAHOMA
STAT. (SUPP. 1943) TIT. 81; OREGON COMP. LAWS ANN. SEC. 60-301 ET SEQ.;
SOUTH DAKOTA CODE (1939) C. 60.03; TEXAS STAT. (VERNON, 1936) ART.
6445; UTAH CODE ANN. (1943) SEC. 76-2-1 ET SEQ.; WASHINGTON REV. STAT.
ANN. (REMINGTON) SECS. 10344, 10392, (SUPP. 1940) SEC. 11569-1 ET SEQ.;
WISCONSIN STAT. (1941) SEC. 195.21. 

FN8  CALIFORNIA, INDIANA, SOUTH DAKOTA, LOC.  CIT.  SUPRA NOTE 7. 

FN9  ARIZONA, IDAHO, ILLINOIS, MAINE, NEVADA, NORTH DAKOTA, UTAH,
WASHINGTON, LOC.  CIT.  SUPRA NOTE 7. 

FN10  3 UNIFORM LAWS ANN. (SUPP. 1942) 6. 

FN11  E. G., PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, SEC. 2(A),
49 STAT. 804, 15 U.S.C. SEC. 79B (A); FEDERAL POWER ACT, SEC. 201(E),
49 STAT. 848, 16 U.S.C. SEC. 824(E). 

FN12  AMENDMENT PROPOSED BY SENATOR NORRIS TO S.J. RES. 161.  H.R.
7565, AS AMENDED BY SENATE, SEC. 1, 77TH CONG., 2D SESS. 

FN13  56 STAT. 765, 50 U.S.C. (SUPP. II, 1942), SEC. 961. 

FN14  "  ...  AND PUBLIC UTILITIES WERE UNDER WHAT FOR THE TIME BEING
AT LEAST SEEMED TO BE AN ADEQUATE SYSTEM OF STATE REGULATION, AND
THEREFORE DID NOT NEED TO BE BROUGHT INTO REVIEW."  HEARINGS BEFORE
HOUSE COMMITTEE ON BANKING AND CURRENCY ON H.R. 5479, 77TH CONG., 1ST
SESS., PT. I, REVISED, P. 444. 

FN15  "NOW, AS TO THE UTILITIES.  THERE IS, AS THE MEMBERS ARE AWARE,
AN ADEQUATE SET OF REGULATIONS AS TO THE CHARGES WHICH UTILITY
COMPANIES CAN MAKE.  THESE, AGAIN, ARE BASED UPON A LONG SERIES OF
JUDICIAL DETERMINATIONS, OF STATE REGULATIONS, AND OF STATE LAWS.  IT
SEEMED TO THOSE DRAFTING THE BILL THAT THIS WAS AN AREA WHICH WAS NOT
LIKELY TO GIVE DIFFICULTY OR TO CAUSE, SO FAR AS THEY COULD SEE AT THAT
TIME, ANY INFLATIONARY TREND.  THE BILL IS DESIGNED TO CONTROL AN
EMERGENCY INFLATIONARY SITUATION AND HAS LEFT THEM OUT, JUST AS IT HAS
TRANSPORTATION RATES.  THERE ARE QUESTIONS PECULIAR TO UTILITIES AND
NONE OF THEM, SO FAR AS I SEE AT THE PRESENT TIME, WOULD MAKE NECESSARY
FURTHER REGULATION BY MEANS OF A PRICE-CONTROL BILL."  ID., PP. 54-55. 

FN16  "  ...  I HAVE FOUND THAT EVERY ONE OF THE AGENCIES CHARGED
WITH THESE PARTICULAR ITEMS OF COST ARE JUST AS EARNEST AS WE ARE ABOUT
KEEPING THOSE COSTS DOWN."  ID., P. 445; SEE THE DISSENTING OPINION OF
CHIEF JUDGE VINSON IN THE EMERGENCY COURT OF APPEALS, 137 F.2D 201,
209. 

FN17  THE NATIONAL ASSOCIATION OF RAILROAD AND UTILITIES
COMMISSIONERS HAS FILED A BRIEF AMICUS CURIAE IN OPPOSITION TO WHAT
THEY CONSIDER AN INVASION BY THE PRICE ADMINISTRATOR OF THEIR FIELD OF
PUBLIC REGULATION. 

FN18  TERMINAL RAILROAD ASSN. V. BROTHERHOOD OF TRAINMEN, 318 U.S.
1. 

FN19  THE ADMINISTRATOR CITES CHICAGO BOARD OF TRADE V. JOHNSON, 264
U.S. 1; LYETH V. HOEY, 305 U.S. 188; MORGAN V. COMMISSIONER, 309 U.S.
78; JEROME V. UNITED STATES, 318 U.S. 101, 104.  SEE ALSO DEITRICK V.
GREANEY, 309 U.S. 190; D'OENCH, DUHME & CO. V. FEDERAL DEPOSIT INS.
CORP., 315 U.S. 447, 470; SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO.,
317 U.S. 173, 176; CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S.
363. 

FN20  SEE MANGUS V. MILLER, 317 U.S. 178, CORN EXCHANGE BNK V.
KLAUDER, 318 U.S. 434, MYERS V. MATLEY, 318 U.S. 622(BANKRUPTCY);
UTERHART V. UNITED STATES, 240 U.S. 598, 603, CROOKS V. HARRELSON, 282
U.S. 55, BLAIR V. COMMISSIONER, 300 U.S. 5, HELVERING V. FULLER, 310
U.S. 69, 74, HELVERING V. STUART, 317 U.S. 154(TAXATION); MCCLAINE V.
RANKIN, 197 U.S. 154, RAWLINGS V. RAY, 312 U.S. 96(STATUTE OF
LIMITATIONS); BROWN V. UNITED STATES, 263 U.S. 78(CONDEMNATION); NEW
YORK, C. & ST. L.R. CO. V. FRANK, 314 U.S. 360, 364-66(RAILROAD
CONSOLIDATION); UNITED STATES V. OKLAHOMA GAS & ELECTRIC CO., 318 U.S.
206; BOARD OF COMMISSIONERS V. UNITED STATES, 308 U.S. 343. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK AND MR. JUSTICE
MURPHY CONCUR, DISSENTING: 

I THINK THE PRESENT DECISION PLACES AN UNWARRANTED BURDEN ON THOSE
WHO ARE WAGING THE PRESENT WAR AGAINST INFLATION.  THE ACT EXEMPTS FROM
FEDERAL PRICE CONTROL THE "RATES CHARGED BY ANY COMMON CARRIER OR OTHER
PUBLIC UTILITY."  SEC. 302(C).  THE ADMINISTRATOR HAS ACCORDINGLY
GRANTED EXEMPTIONS TO ENTERPRISES FURNISHING THE PUBLIC WITH GAS,
ELECTRICITY, WATER, LIGHT, HEAT OR POWER, AND TELEPHONE AND TELEGRAPH
SERVICES.  THAT GROUP EMBRACES THOSE ENTERPRISES WHICH TOGETHER WITH
COMMON CARRIERS WERE TRADITIONALLY INCLUDED IN THE CATEGORY OF A
"PUBLIC UTILITY."  IT SHOULD NOT BE EXPANDED BY INTERPRETATION TO
INCLUDE THE FILIGREE VARIETY WITH WHICH WE ARE NOW CONCERNED. 

THE PURPOSE OF THE ACT IS TO PROVIDE AN INSTRUMENT FOR NATIONAL
CONTROL OF THE INFLATIONARY FORCES SET LOOSE BY THE WAR.  THE NEED FOR
UNIFORMITY IN THE ENFORCEMENT OF THE ACT IS ACUTE - TO AVOID INEQUALITY
IN BURDEN AND SACRIFICE; TO WEIGH THE ODDS FOR SUCCESS AS HEAVILY AS
POSSIBLE ON THE SIDE OF THE PUBLIC INTEREST.  THE OTHER EXEMPTIONS IN
THE ACT APPLY UNIFORMLY THROUGHOUT THE COUNTRY - WAGES, INSURANCE
RATES, THEATRE ADMISSIONS, FEES FOR PROFESSIONAL SERVICES, AND THE
LIKE.  IF THE "PUBLIC UTILITY" EXEMPTION IS CONFINED TO THE TRADITIONAL
CLASSES OF UTILITIES, SUBSTANTIAL UNIFORMITY WILL BE OBTAINED AS THEY
ARE ALMOST UNIVERSALLY SUBJECT TO RATE REGULATION IN THE STATES.  BUT
UNDER THE VIEW TAKEN BY THE COURT WAREHOUSES WILL BE EXEMPT IN SOME
STATES BUT NOT IN OTHERS.  THE SAME WILL BE TRUE OF WHARVES AND DOCKS,
SLAUGHTER HOUSES, PUBLIC MARKETS, COTTON GINS AND WHAT NOT.  AND EVEN
IN THE SAME STATE THERE WILL BE EXEMPTIONS FOR SOME WAREHOUSES BUT NOT
FOR OTHERS.  THIS DEPENDENCE OF EXEMPTIONS ON THE VAGARIES OF STATE LAW
WOULD BE QUITE UNDERSTANDABLE IF THE FEDERAL ACT WERE DESIGNED TO MESH
WITH STATE CONTROL - FEDERAL CONTROL BEING INTERPOSED TO TAKE UP WHERE
STATE REGULATION WAS IMPOSSIBLE OR INEFFECTIVE, AS IN VARIOUS TYPES OF
PUBLIC UTILITY REGULATION.  THEN THERE WOULD BE A GREAT NEED IN VIEW OF
OUR FEDERAL SYSTEM TO PRESERVE AS MUCH LOCAL AUTONOMY AS POSSIBLE.  THE
SAME WOULD ALSO BE TRUE WHERE ONLY A PARTIAL OVERRIDING OF STATE
CONTROLS WAS NECESSARY TO REACH THE LIMITED FEDERAL OBJECTIVE.  BUT THE
WAR AGAINST INFLATION IS A GRIM AFFAIR CALLING FOR QUITE DIFFERENT
REQUIREMENTS.  IT CANNOT BE WAGED ALONG THOSE TRADITIONAL LINES.  THE
LUXURIES OF PEACE-TIME ARRANGEMENTS DO NOT ALWAYS FIT THE EXIGENCIES OF
THIS WAR EMERGENCY.  NOR DO THE STATE RATEREGULATIONS IN QUESTION
SUPPLEMENT THE FEDERAL SYSTEM.  THEY OVERRIDE IT.  AND STANDARDS WHICH
THEY PRESCRIBE ARE NOT THE STANDARDS FOR PRICE-FIXING UNDER THE PRESENT
ACT.  THE CONVENTIONAL POWER TO FIX RATES IS GOVERNED BY CRITERIA QUITE
DIFFERENT FROM THOSE WHICH CONTROL THE ADMINISTRATOR'S ACTION.  HE IS
TO FIX THOSE MAXIMUM PRICES WHICH "WILL BE GENERALLY FAIR AND EQUITABLE
AND WILL EFFECTUATE THE PURPOSES OF THIS ACT."  SEC. 2(A). 

EVERY EXCEPTION READ INTO THE ACT CREATES ANOTHER POINT OF LEAKAGE,
MULTIPLIES THE TASK OF ENFORCEMENT, AND CREATES A FAVORED CLASS OF
BUSINESSES.  I WOULD NOT READ THE ACT WITH SUCH A HOSTILE EYE.  WHERE
TWO INTERPRETATIONS ARE POSSIBLE I WOULD TAKE THE ONE WHICH AVOIDS
THOSE RESULTS.  THE CHOICE BETWEEN THE "LETTER" AND THE "SPIRIT" IS AN
ANCIENT ONE EVEN IN THE LAW.  SEE RADIN, A SHORT WAY WITH STATUTES, 56
HARV. L. REV. 388.  IN THIS CASE I THINK THE WRONG CHOICE HAS BEEN
MADE. 
..END :












PRINCE V. MASSACHUSETTS, 321 U.S. 158 


NO. 98.  ARGUED DECEMBER 14, 1943.  - DECIDED JANUARY 31, 1944.  - 313
MASS. 223, 46 N.E.2D 755, AFFIRMED. 


1.  A STATE STATUTE PROVIDES THAT NO MINOR (BOY UNDER 12 OR GIRL UNDER
18) SHALL SELL, OR OFFER FOR SALE, UPON THE STREETS OR IN OTHER PUBLIC
PLACES, ANY NEWSPAPERS, MAGAZINES, PERIODICALS, OR OTHER ARTICLES OF
MERCHANDISE.  THE STATUTE MAKES IT UNLAWFUL FOR ANY PERSON TO FURNISH
TO A MINOR ANY ARTICLE WHICH HE KNOWS THE MINOR INTENDS TO SELL IN
VIOLATION OF THE LAW; AND FOR ANY PARENT OR GUARDIAN TO PERMIT A MINOR
TO WORK IN VIOLATION OF THE LAW.  HELD - AS APPLIED TO A GUARDIAN WHO
FURNISHED A MINOR WARD WITH RELIGIOUS LITERATURE AND PERMITTED THE
MINOR TO DISTRIBUTE THE SAME ON THE STREETS, ALTHOUGH THE GUARDIAN
ACCOMPANIED THE MINOR AND BOTH WERE ACTING IN ACCORD WITH THEIR
RELIGIOUS BELIEFS - NOT VIOLATIVE OF FREEDOM OF RELIGION, NOR A DENIAL
OF THE EQUAL PROTECTION OF THE LAWS, UNDER THE FOURTEENTH AMENDMENT OF
THE FEDERAL CONSTITUTION.  P. 167. 

2.  WHETHER THERE WAS A "SALE" OR "OFFER TO SELL," AND WHETHER WHAT
THE MINOR WAS DOING WAS "WORK," WITHIN THE MEANING OF THE STATE
STATUTE, WERE QUESTIONS OF LOCAL LAW UPON WHICH, ON THIS RECORD, THE
DECISION OF THE STATE COURT IS BINDING HERE.  P. 163. 

3.  WITH RESPECT TO THE PUBLIC PROCLAIMING OF RELIGION IN STREETS AND
OTHER PUBLIC PLACES, AS IN THE CASE OF OTHER FREEDOMS, THE POWER OF THE
STATE TO CONTROL THE CONDUCT OF CHILDREN IS BROADER THAN ITS POWER OVER
ADULTS.  P. 170. 

4.  THERE IS NO DENIAL OF EQUAL PROTECTION OF THE LAWS IN EXCLUDING
CHILDREN OF A PARTICULAR SECT FROM SUCH USE OF THE STREETS AS IS BARRED
ALSO TO ALL OTHER CHILDREN.  P. 170. 

PRINCE V. MASSACHUSETTS. 

APPEAL FROM THE SUPERIOR COURT OF MASSACHUSETTS, PLYMOUTH COUNTY. 

APPEAL FROM A JUDGMENT ENTERED ON A RESCRIPT FROM THE HIGHEST COURT
OF THE STATE, WHICH SUSTAINED CONVICTIONS ON TWO OF THREE COMPLAINTS
FOR VIOLATIONS OF A STATE STATUTE. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE CASE BRINGS FOR REVIEW ANOTHER EPISODE IN THE CONFLICT BETWEEN
JEHOVAH'S WITNESSES AND STATE AUTHORITY.  THIS TIME SARAH PRINCE
APPEALS FROM CONVICTIONS FOR VIOLATING MASSACHUSETTS' CHILD LABOR LAWS,
BY ACTS SAID TO BE A RIGHTFUL EXERCISE OF HER RELIGIOUS CONVICTIONS. 

WHEN THE OFFENSES WERE COMMITTED SHE WAS THE AUNT AND CUSTODIAN OF
BETTY M. SIMMONS, A GIRL NINE YEARS OF AGE.  ORIGINALLY THERE WERE
THREE SEPARATE COMPLAINTS.  THEY WERE, SHORTLY, FOR (1) REFUSAL TO
DISCLOSE BETTY'S IDENTITY AND AGE TO A PUBLIC OFFICER WHOSE DUTY WAS TO
ENFORCE THE STATUTES; (2) FURNISHING HER WITH MAGAZINES, KNOWING SHE
WAS TO SELL THEM UNLAWFULLY, THAT IS, ON THE STREET; AND (3) AS BETTY'S
CUSTODIAN, PERMITTING HER TO WORK CONTRARY TO LAW.  THE COMPLAINTS WERE
MADE, RESPECTIVELY, PURSUANT TO SECS. 79, 80 AND 81 OF CHAPTER 149,
GEN. LAWS OF MASS. (TER.  ED.).  THE SUPREME JUDICIAL COURT REVERSED
THE CONVICTION UNDER THE FIRST COMPLAINT ON STATE GROUNDS; FN1  BUT
SUSTAINED THE JUDGMENTS FOUNDED ON THE OTHER TWO.  FN2  313 MASS. 223,
46 N.E.2D 755.  THEY PRESENT THE ONLY QUESTIONS FOR OUR DECISION. 
THESE ARE WHETHER SECS. 80 AND 81, AS APPLIED, CONTRAVENE THE
FOURTEENTH AMENDMENT BY DENYING OR ABRIDGING APPELLANT'S FREEDOM OF
RELIGION AND BY DENYING TO HER THE EQUAL PROTECTION OF THE LAWS. 

LABOR LAW.  FN3  THEY PROVIDE METHODS FOR ENFORCING THE PROHIBITIONS OF
SEC. 69, WHICH IS AS FOLLOWS: 

"NO BOY UNDER TWELVE AND NO GIRL UNDER EIGHTEEN SHALL SELL, EXPOSE OR
OFFER FOR SALE ANY NEWSPAPERS, MAGAZINES, PERIODICALS OR ANY OTHER
ARTICLES OF MERCHANDISE OF ANY DESCRIPTION, OR EXERCISE THE TRADE OF
BOOTBLACK OR SCAVENGER, OR ANY OTHER TRADE, IN ANY STREET OR PUBLIC
PLACE." 


"WHOEVER FURNISHES OR SELLS TO ANY MINOR ANY ARTICLE OF ANY
DESCRIPTION WITH THE KNOWLEDGE THAT THE MINOR INTENDS TO SELL SUCH
ARTICLE IN VIOLATION OF ANY PROVISION OF SECTIONS SIXTY-NINE TO SEVENTY
THREE, INCLUSIVE, OR AFTER HAVING RECEIVED WRITTEN NOTICE TO THIS
EFFECT FROM ANY OFFICER CHARGED WITH THE ENFORCEMENT THEREOF, OR
KNOWINGLY PROCURES OR ENCOURAGES ANY MINOR TO VIOLATE ANY PROVISIONS OF
SAID SECTIONS, SHALL BE PUNISHED BY A FINE OF NOT LESS THAN TEN NOR
MORE THAN TWO HUNDRED DOLLARS OR BY IMPRISONMENT FOR NOT MORE THAN TWO
MONTHS, OR BOTH."  SEC. 80. 

"ANY PARENT, GUARDIAN OR CUSTODIAN HAVING A MINOR UNDER HIS CONTROL
WHO COMPELS OR PERMITS SUCH MINOR TO WORK IN VIOLATION OF ANY PROVISION
OF SECTIONS SIXTY TO SEVENTY-FOUR, INCLUSIVE,  ... SHALL FOR A FIRST
OFFENSE BE PUNISHED BY A FINE OF NOT LESS THAN TWO NOR MORE THAN TEN
DOLLARS OR BY IMPRISONMENT FOR NOT MORE THAN FIVE DAYS, OR BOTH; ...  "
SEC. 81. 

THE STORY TOLD BY THE EVIDENCE HAS BECOME FAMILIAR.  IT HARDLY NEEDS
REPEATING, EXCEPT TO GIVE SETTING TO THE VARIATIONS INTRODUCED THROUGH
THE PART PLAYED BY A CHILD OF TENDER YEARS.  MRS. PRINCE, LIVING IN
BROCKTON, IS THE MOTHER OF TWO YOUNG SONS.  SHE ALSO HAS LEGAL CUSTODY
OF BETTY SIMMONS, WHO LIVES WITH THEM.  THE CHILDREN TOO ARE JEHOVAH'S
WITNESSES AND BOTH MRS. PRINCE AND BETTY TESTIFIED THEY WERE ORDAINED
MINISTERS.  THE FORMER WAS ACCUSTOMED TO GO EACH WEEK ON THE STREETS OF
BROCKTON TO DISTRIBUTE "WATCHTOWER" AND "CONSOLATION," ACCORDING TO THE
USUAL PLAN.  FN4  SHE HAD PERMITTED THE CHILDREN TO ENGAGE IN THIS
ACTIVITY PREVIOUSLY, AND HAD BEEN WARNED AGAINST DOING SO BY THE SCHOOL
ATTENDANCE OFFICER, MR. PERKINS.  BUT, UNTIL DECEMBER 18, 1941, SHE
GENERALLY DID NOT TAKE THEM WITH HER AT NIGHT. 

THAT EVENING, AS MRS. PRINCE WAS PREPARING TO LEAVE HER HOME, THE
CHILDREN ASKED TO GO.  SHE AT FIRST REFUSED.  CHILDLIKE, THEY RESORTED
TO TEARS; AND, MOTHERLIKE, SHE YIELDED.  ARRIVING DOWNTOWN, MRS. PRINCE
PERMITTED THE CHILDREN "TO ENGAGE IN THE PREACHING WORK WITH HER UPON
THE SIDEWALKS."  THAT IS, WITH SPECIFIC REFERENCE TO BETTY, SHE AND
MRS. PRINCE TOOK POSITIONS ABOUT TWENTY FEET APART NEAR A STREET
INTERSECTION.  BETTY HELD UP IN HER HAND, FOR PASSERS-BY TO SEE, COPIES
OF "WATCH TOWER" AND "CONSOLATION."  FROM HER SHOULDER HUNG THE USUAL
CANVAS MAGAZINE BAG, ON WHICH WAS PRINTED:  "WATCHTOWER AND CONSOLATION
5[ PER COPY."  NO ONE ACCEPTED A COPY FROM BETTY THAT EVENING AND SHE
RECEIVED NO MONEY.  NOR DID HER AUNT.  BUT ON OTHER OCCASIONS, BETTY
HAD RECEIVED FUNDS AND GIVEN OUT COPIES. 

MRS. PRINCE AND BETTY REMAINED UNTIL 8:45 P.M.  A FEW MINUTES BEFORE
THIS, MR. PERKINS APPROACHED MRS. PRINCE.  A DISCUSSION ENSUED.  HE
INQUIRED AND SHE REFUSED TO GIVE BETTY'S NAME.  HOWEVER, SHE STATED THE
CHILD ATTENDED THE SHAW SCHOOL.  MR. PERKINS REFERRED TO HIS PREVIOUS
WARNINGS AND SAID HE WOULD ALLOW FIVE MINUTES FOR THEM TO GET OFF THE
STREET.  MRS. PRINCE ADMITTED SHE SUPPLIED BETTY WITH THE MAGAZINES AND
SAID, "(NEITHER) YOU NOR ANYBODY ELSE CAN STOP ME  ...  THIS CHILD IS
EXERCISING HER GOD-GIVEN RIGHT AND HER CONSTITUTIONAL RIGHT TO PREACH
THE GOSPEL, AND NO CREATURE HAS A RIGHT TO INTERFERE WITH GOD'S
COMMANDS."  HOWEVER, MRS. PRINCE AND BETTY DEPARTED.  SHE REMARKED AS
SHE WENT, "I'M NOT GOING THROUGH THIS ANY MORE.  WE'VE BEEN THROUGH IT
TIME AND TIME AGAIN.  I'M GOING HOME AND PUT THE LITTLE GIRL TO BED." 
IT MAY BE ADDED THAT TESTIMONY, BY BETTY, HER AUNT AND OTHERS, WAS
OFFERED AT THE TRIALS, AND WAS EXCLUDED, TO SHOW THAT BETTY BELIEVED IT
WAS HER RELIGIOUS DUTY TO PERFORM THIS WORK AND FAILURE WOULD BRING
CONDEMNATION "TO EVERLASTING DESTRUCTION AT ARMAGEDDON." 

AS THE CASE REACHES US, THE QUESTIONS ARE NO LONGER OPEN WHETHER WHAT
THE CHILD DID WAS A "SALE" OR AN "OFFER TO SELL" WITHIN SEC. 69  FN5
OR WAS "WORK" WITHIN SEC. 81.  THE STATE COURT'S DECISION HAS
FORECLOSED THEM ADVERSELY TO APPELLANT AS A MATTER OF STATE LAW.  FN6
THE ONLY QUESTION REMAINING THEREFORE IS WHETHER, AS CONSTRUED AND
APPLIED, THE STATUTE IS VALID.  UPON THIS THE COURT SAID:  "WE THINK
THAT FREEDOM OF THE PRESS AND OF RELIGION IS SUBJECT TO INCIDENTAL
REGULATION TO THE SLIGHT DEGREE INVOLVED IN THE PROHIBITION OF THE
SELLING OF RELIGIOUS LITERATURE IN STREETS AND PUBLIC PLACES BY BOYS
UNDER TWELVE AND GIRLS UNDER EIGHTEEN, AND IN THE FURTHER STATUTORY
PROVISIONS HEREIN CONSIDERED, WHICH HAVE BEEN ADOPTED AS MEANS OF
ENFORCING THAT PROHIBITION."  313 MASS. 223, 229, 46 N.E.2D 755, 758. 

APPELLANT DOES NOT STAND ON FREEDOM OF THE PRESS.  REGARDING IT AS
SECULAR, SHE CONCEDES IT MAY BE RESTRICTED AS MASSACHUSETTS HAS DONE. 
FN7  HENCE, SHE RESTS SQUARELY ON FREEDOM OF RELIGION UNDER THE FIRST
AMENDMENT, APPLIED BY THE FOURTEENTH TO THE STATES.  SHE BUTTRESSES
THIS FOUNDATION, HOWEVER, WITH A CLAIM OF PARENTAL RIGHT AS SECURED BY
THE DUE PROCESS CLAUSE OF THE LATTER AMENDMENT.  FN8  CF. MEYER V.
NEBRASKA, 262 U.S. 390.  THESE GUARANTIES, SHE THINKS, GUARD ALIKE
HERSELF AND THE CHILD IN WHAT THEY HAVE DONE.  THUS, TWO CLAIMED
LIBERTIES ARE AT STAKE.  ONE IS THE PARENT'S, TO BRING UP THE CHILD IN
THE WAY HE SHOULD GO, WHICH FOR APPELLANT MEANS TO TEACH HIM THE TENETS
AND THE PRACTICES OF THEIR FAITH.  THE OTHER FREEDOM IS THE CHILD'S, TO
OBSERVE THESE; AND AMONG THEM IS "TO PREACH THE GOSPEL  ...  BY PUBLIC
DISTRIBUTION" OF "WATCHTOWER" AND "CONSOLATION," IN CONFORMITY WITH THE
SCRIPTURE:  "A LITTLE CHILD SHALL LEAD THEM." 

IF BY THIS POSITION APPELLANT SEEKS FOR FREEDOM OF CONSCIENCE A
BROADER PROTECTION THAN FOR FREEDOM OF THE MIND, IT MAY BE DOUBTED THAT
ANY OF THE GREAT LIBERTIES INSURED BY THE FIRST ARTICLE CAN BE GIVEN
HIGHER PLACE THAN THE OTHERS.  ALL HAVE PREFERRED POSITION IN OUR BASIC
SCHEME.  SCHNEIDER V. STATE, 308 U.S. 147; CANTWELL V. CONNECTICUT, 310
U.S. 296.  ALL ARE INTERWOVEN THERE TOGETHER.  DIFFERENCES THERE ARE,
IN THEM AND IN THE MODES APPROPRIATE FOR THEIR EXERCISE.  BUT THEY HAVE
UNITY IN THE CHARTER'S PRIME PLACE BECAUSE THEY HAVE UNITY IN THEIR
HUMAN SOURCES AND FUNCTIONINGS.  HEART AND MIND ARE NOT IDENTICAL. 
INTUITIVE FAITH AND REASONED JUDGMENT ARE NOT THE SAME.  SPIRIT IS NOT
ALWAYS THOUGHT.  BUT IN THE EVERYDAY BUSINESS OF LIVING, SECULAR OR
OTHERWISE, THESE VARIANT ASPECTS OF PERSONALITY FIND INSEPARABLE
EXPRESSION IN A THOUSAND WAYS.  THEY CANNOT BE ALTOGETHER PARTED IN LAW
MORE THAN IN LIFE. 

TO MAKE ACCOMMODATION BETWEEN THESE FREEDOMS AND AN EXERCISE OF STATE
AUTHORITY ALWAYS IS DELICATE.  IT HARDLY COULD BE MORE SO THAN IN SUCH
A CLASH AS THIS CASE PRESENTS.  ON ONE SIDE IS THE OBVIOUSLY EARNEST
CLAIM FOR FREEDOM OF CONSCIENCE AND RELIGIOUS PRACTICE.  WITH IT IS
ALLIED THE PARENT'S CLAIM TO AUTHORITY IN HER OWN HOUSEHOLD AND IN THE
REARING OF HER CHILDREN.  THE PARENT'S CONFLICT WITH THE STATE OVER
CONTROL OF THE CHILD AND HIS TRAINING IS SERIOUS ENOUGH WHEN ONLY
SECULAR MATTERS ARE CONCERNED.  IT BECOMES THE MORE SO WHEN AN ELEMENT
OF RELIGIOUS CONVICTION ENTERS.  AGAINST THESE SACRED PRIVATE
INTERESTS, BASIC IN A DEMOCRACY, STAND THE INTERESTS OF SOCIETY TO
PROTECT THE WELFARE OF CHILDREN, AND THE STATE'S ASSERTION OF AUTHORITY
TO THAT END, MADE HERE IN A MANNER CONCEDED VALID IF ONLY SECULAR
THINGS WERE INVOLVED.  THE LAST IS NO MERE CORPORATE CONCERN OF
OFFICIAL AUTHORITY.  IT IS THE INTEREST OF YOUTH ITSELF, AND OF THE
WHOLE COMMUNITY, THAT CHILDREN BE BOTH SAFEGUARDED FROM ABUSES AND
GIVEN OPPORTUNITIES FOR GROWTH INTO FREE AND INDEPENDENT WELL-DEVELOPED
MEN AND CITIZENS.  BETWEEN CONTRARY PULLS OF SUCH WEIGHT, THE SAFEST
AND MOST OBJECTIVE RECOURSE IS TO THE LINES ALREADY MARKED OUT, NOT
PRECISELY BUT FOR GUIDES, IN NARROWING THE NO MAN'S LAND WHERE THIS
BATTLE HAS GONE ON. 

THE RIGHTS OF CHILDREN TO EXERCISE THEIR RELIGION, AND OF PARENTS TO
GIVE THEM RELIGIOUS TRAINING AND TO ENCOURAGE THEM IN THE PRACTICE OF
RELIGIOUS BELIEF, AS AGAINST PREPONDERANT SENTIMENT AND ASSERTION OF
STATE POWER VOICING IT, HAVE HAD RECOGNITION HERE, MOST RECENTLY IN
WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624. 
PREVIOUSLY IN PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, THIS COURT
HAD SUSTAINED THE PARENT'S AUTHORITY TO PROVIDE RELIGIOUS WITH SECULAR
SCHOOLING, AND THE CHILD'S RIGHT TO RECEIVE IT, AS AGAINST THE STATE'S
REQUIREMENT OF ATTENDANCE AT PUBLIC SCHOOLS.  AND IN MEYER V. NEBRASKA,
262 U.S. 390, CHILDREN'S RIGHTS TO RECEIVE TEACHING IN LANGUAGES OTHER
THAN THE NATION'S COMMON TONGUE WERE GUARDED AGAINST THE STATE'S
ENCROACHMENT.  IT IS CARDINAL WITH US THAT THE CUSTODY, CARE AND
NURTURE OF THE CHILD RESIDE FIRST IN THE PARENTS, WHOSE PRIMARY
FUNCTION AND FREEDOM INCLUDE PREPARATION FOR OBLIGATIONS THE STATE CAN
NEITHER SUPPLY NOR HINDER.  PIERCE V. SOCIETY OF SISTERS, SUPRA.  AND
IT IS IN RECOGNITION OF THIS THAT THESE DECISIONS HAVE RESPECTED THE
PRIVATE REALM OF FAMILY LIFE WHICH THE STATE CANNOT ENTER. 

BUT THE FAMILY ITSELF IS NOT BEYOND REGULATION IN THE PUBLIC
INTEREST, AS AGAINST A CLAIM OF RELIGIOUS LIBERTY.  REYNOLDS V. UNITED
STATES, 98 U.S. 145; DAVIS V. BEASON, 133 U.S. 333.  AND NEITHER RIGHTS
OF RELIGION NOR RIGHTS OF PARENTHOOD ARE BEYOND LIMITATION.  ACTING TO
GUARD THE GENERAL INTEREST IN YOUTH'S WELL BEING, THE STATE AS PARENS
PATRIAE MAY RESTRICT THE PARENT'S CONTROL BY REQUIRING SCHOOL
ATTENDANCE,  FN9  REGULATING OR PROHIBITING THE CHILD'S LABOR  FN10 AND
IN MANY OTHER WAYS.  FN11  ITS AUTHORITY IS NOT NULLIFIED MERELY
BECAUSE THE PARENT GROUNDS HIS CLAIM TO CONTROL THE CHILD'S COURSE OF
CONDUCT ON RELIGION OR CONSCIENCE.  THUS, HE CANNOT CLAIM FREEDOM FROM
COMPULSORY VACCINATION FOR THE CHILD MORE THAN FOR HIMSELF ON RELIGIOUS
GROUNDS.  FN12  THE RIGHT TO PRACTICE RELIGION FREELY DOES NOT INCLUDE
LIBERTY TO EXPOSE THE COMMUNITY OR THE CHILD TO COMMUNICABLE DISEASE OR
THE LATTER TO ILL HEALTH OR DEATH.  PEOPLE V. PIERSON, 176 N.Y. 201, 68
N.E. 243.  FN13  THE CATALOGUE NEED NOT BE LENGTHENED.  IT IS
SUFFICIENT TO SHOW WHAT INDEED APPELLANT HARDLY DISPUTES, THAT THE
STATE HAS A WIDE RANGE OF POWER FOR LIMITING PARENTAL FREEDOM AND
AUTHORITY IN THINGS AFFECTING THE CHILD'S WELFARE; AND THAT THIS
INCLUDES, TO SOME EXTENT, MATTERS OF CONSCIENCE AND RELIGIOUS
CONVICTION. 

BUT IT IS SAID THE STATE CANNOT DO SO HERE.  THIS, FIRST, BECAUSE
WHEN STATE ACTION IMPINGES UPON A CLAIMED RELIGIOUS FREEDOM, IT MUST
FALL UNLESS SHOWN TO BE NECESSARY FOR OR CONDUCIVE TO THE CHILD'S
PROTECTION AGAINST SOME CLEAR AND PRESENT DANGER, CF. SCHENCK V. UNITED
STATES, 249 U.S. 47; AND, IT IS ADDED, THERE WAS NO SUCH SHOWING HERE. 
THE CHILD'S PRESENCE ON THE STREET, WITH HER GUARDIAN, DISTRIBUTING OR
OFFERING TO DISTRIBUTE THE MAGAZINES, IT IS URGED, WAS IN NO WAY
HARMFUL TO HER, NOR IN ANY EVENT MORE SO THAN THE PRESENCE OF MANY
OTHER CHILDREN AT THE SAME TIME AND PLACE, ENGAGED IN SHOPPING AND
OTHER ACTIVITIES NOT PROHIBITED.  ACCORDINGLY, IN VIEW OF THE PREFERRED
POSITION THE FREEDOMS OF THE FIRST ARTICLE OCCUPY, THE STATUTE IN ITS
PRESENT APPLICATION MUST FALL.  IT CANNOT BE SUSTAINED BY ANY
PRESUMPTION OF VALIDITY.  CF. SCHNEIDER V. STATE, 308 U.S. 147.  AND,
FINALLY, IT IS SAID, THE STATUTE IS, AS TO CHILDREN, AN ABSOLUTE
PROHIBITION, NOT MERELY A REASONABLE REGULATION, OF THE DENOUNCED
ACTIVITY.    CONCEDEDLY A STATUTE OR ORDINANCE IDENTICAL IN TERMS WITH
SEC. 69, EXCEPT THAT IT IS APPLICABLE TO ADULTS OR ALL PERSONS
GENERALLY, WOULD BE INVALID.  YOUNG V. CALIFORNIA, 308 U.S. 147;
NICHOLS V. MASSACHUSETTS, 308 U.S. 147; JAMISON V. TEXAS, 318 U.S. 413;
MURDOCK V. PENNSYLVANIA, 319 U.S. 105; MARTIN V. CITY OF STRUTHERS, 319
U.S. 141.  FN14  BUT THE MERE FACT A STATE COULD NOT WHOLLY PROHIBIT
THIS FORM OF ADULT ACTIVITY, WHETHER CHARACTERIZED LOCALLY AS A "SALE"
OR OTHERWISE, DOES NOT MEAN IT CANNOT DO SO FOR CHILDREN.  SUCH A
CONCLUSION GRANTED WOULD MEAN THAT A STATE COULD IMPOSE NO GREATER
LIMITATION UPON CHILD LABOR THAN UPON ADULT LABOR.  OR, IF AN ADULT
WERE FREE TO ENTER DANCE HALLS, SALOONS, AND DISREPUTABLE PLACES
GENERALLY, IN ORDER TO DISCHARGE HIS CONCEIVED RELIGIOUS DUTY TO
ADMONISH OR DISSUADE PERSONS FROM FREQUENTING SUCH PLACES, SO WOULD BE
A CHILD WITH SIMILAR CONVICTIONS AND OBJECTIVES, IF NOT ALONE THEN IN
THE PARENT'S COMPANY, AGAINST THE STATE'S COMMAND. 

THE STATE'S AUTHORITY OVER CHILDREN'S ACTIVITIES IS BROADER THAN OVER
LIKE ACTIONS OF ADULTS.  THIS IS PECULIARLY TRUE OF PUBLIC ACTIVITIES
AND IN MATTERS OF EMPLOYMENT.  A DEMOCRATIC SOCIETY RESTS, FOR ITS
CONTINUANCE, UPON THE HEALTHY, WELL-ROUNDED GROWTH OF YOUNG PEOPLE INTO
FULL MATURITY AS CITIZENS, WITH ALL THAT IMPLIES.  IT MAY SECURE THIS
AGAINST IMPEDING RESTRAINTS AND DANGERS WITHIN A BROAD RANGE OF
SELECTION.  AMONG EVILS MOST APPROPRIATE FOR SUCH ACTION ARE THE
CRIPPLING EFFECTS OF CHILD EMPLOYMENT N15, MORE ESPECIALLY IN PUBLIC
PLACES, AND THE POSSIBLE HARMS ARISING FROM OTHER ACTIVITIES SUBJECT TO
ALL THE DIVERSE INFLUENCES OF THE STREET.  FN16  IT IS TOO LATE NOW TO
DOUBT THAT LEGISLATION APPROPRIATELY DESIGNED TO REACH SUCH EVILS IS
WITHIN THE STATE'S POLICE POWER, WHETHER AGAINST THE PARENT'S CLAIM TO
CONTROL OF THE CHILD OR ONE THAT RELIGIOUS SCRUPLES DICTATE CONTRARY
ACTION. 

IT IS TRUE CHILDREN HAVE RIGHTS, IN COMMON WITH OLDER PEOPLE, IN THE
PRIMARY USE OF HIGHWAYS.  BUT EVEN IN SUCH USE STREETS AFFORD DANGERS
FOR THEM NOT AFFECTING ADULTS.  AND IN OTHER USES, WHETHER IN WORK OR
IN OTHER THINGS, THIS DIFFERENCE MAY BE MAGNIFIED.  THIS IS SO NOT ONLY
WHEN CHILDREN ARE UNACCOMPANIED BUT CERTAINLY TO SOME EXTENT WHEN THEY
ARE WITH THEIR PARENTS.  WHAT MAY BE WHOLLY PERMISSIBLE FOR ADULTS
THEREFORE MAY NOT BE SO FOR CHILDREN, EITHER WITH OR WITHOUT THEIR
PARENTS' PRESENCE. 

STREET PREACHING, WHETHER ORAL OR BY HANDING OUT LITERATURE, IS NOT
THE PRIMARY USE OF THE HIGHWAY, EVEN FOR ADULTS.  WHILE FOR THEM IT
CANNOT BE WHOLLY PROHIBITED, IT CAN BE REGULATED WITHIN REASONABLE
LIMITS IN ACCOMMODATION TO THE PRIMARY AND OTHER INCIDENTAL USES.  FN17
BUT, FOR OBVIOUS REASONS, NOTWITHSTANDING APPELLANT'S CONTRARY VIEW,
FN18  THE VALIDITY OF SUCH A PROHIBITION APPLIED TO CHILDREN NOT
ACCOMPANIED BY AN OLDER PERSON HARDLY WOULD SEEM OPEN TO QUESTION.  THE
CASE REDUCES ITSELF THEREFORE TO THE QUESTION WHETHER THE PRESENCE OF
THE CHILD'S GUARDIAN PUTS A LIMIT TO THE STATE'S POWER.  THAT FACT MAY
LESSEN THE LIKELIHOOD THAT SOME EVILS THE LEGISLATION SEEKS TO AVERT
WILL OCCUR.  BUT IT CANNOT FORESTALL ALL OF THEM.  THE ZEALOUS THOUGH
LAWFUL EXERCISE OF THE RIGHT TO ENGAGE IN PROPAGANDIZING THE COMMUNITY,
WHETHER IN RELIGIOUS, POLITICAL OR OTHER MATTERS, MAY AND AT TIMES DOES
CREATE SITUATIONS DIFFICULT ENOUGH FOR ADULTS TO COPE WITH AND WHOLLY
INAPPROPRIATE FOR CHILDREN, ESPECIALLY OF TENDER YEARS, TO FACE.  OTHER
HARMFUL POSSIBILITIES COULD BE STATED, OF EMOTIONAL EXCITEMENT AND
PSYCHOLOGICAL OR PHYSICAL INJURY.  PARENTS MAY BE FREE TO BECOME
MARTYRS THEMSELVES.  BUT IT DOES NOT FOLLOW THEY ARE FREE, IN IDENTICAL
CIRCUMSTANCES, TO MAKE MARTYRS OF THEIR CHILDREN BEFORE THEY HAVE
REACHED THE AGE OF FULL AND LEGAL DISCRETION WHEN THEY CAN MAKE THAT
CHOICE FOR THEMSELVES.  MASSACHUSETTS HAS DETERMINED THAT AN ABSOLUTE
PROHIBITION, THOUGH ONE LIMITED TO STREETS AND PUBLIC PLACES AND TO THE
INCIDENTAL USES PROSCRIBED, IS NECESSARY TO ACCOMPLISH ITS LEGITIMATE
OBJECTIVES.  ITS POWER TO ATTAIN THEM IS BROAD ENOUGH TO REACH THESE
PERIPHERAL INSTANCES IN WHICH THE PARENT'S SUPERVISION MAY REDUCE BUT
CANNOT ELIMINATE ENTIRELY THE ILL EFFECTS OF THE PROHIBITED CONDUCT. 
WE THINK THAT WITH REFERENCE TO THE PUBLIC PROCLAIMING OF RELIGION,
UPON THE STREETS AND IN OTHER SIMILAR PUBLIC PLACES, THE POWER OF THE
STATE TO CONTROL THE CONDUCT OF CHILDREN REACHES BEYOND THE SCOPE OF
ITS AUTHORITY OVER ADULTS, AS IS TRUE IN THE CASE OF OTHER FREEDOMS,
AND THE RIGHTFUL BOUNDARY OF ITS POWER HAS NOT BEEN CROSSED IN THIS
CASE. 

IN SO RULING WE DISPOSE ALSO OF APPELLANT'S ARGUMENT FOUNDED UPON
DENIAL OF EQUAL PROTECTION.  IT FALLS WITH THAT BASED ON DENIAL OF
RELIGIOUS FREEDOM, SINCE IN THIS INSTANCE THE ONE IS BUT ANOTHER
PHRASING OF THE OTHER.  SHORTLY, THE CONTENTION IS THAT THE STREET, FOR
JEHOVAH'S WITNESSES AND THEIR CHILDREN, IS THEIR CHURCH, SINCE THEIR
CONVICTION MAKES IT SO; AND TO DENY THEM ACCESS TO IT FOR RELIGIOUS
PURPOSES AS WAS DONE HERE HAS THE SAME EFFECT AS EXCLUDING ALTAR BOYS,
YOUTHFUL CHORISTERS, AND OTHER CHILDREN FROM THE EDIFICES IN WHICH THEY
PRACTICE THEIR RELIGIOUS BELIEFS AND WORSHIP.  THE ARGUMENT HARDLY
NEEDS MORE THAN STATEMENT, AFTER WHAT HAS BEEN SAID, TO REFUTE IT.
HOWEVER JEHOVAH'S WITNESSES MAY CONCEIVE THEM, THE PUBLIC HIGHWAYS HAVE
NOT BECOME THEIR RELIGIOUS PROPERTY MERELY BY THEIR ASSERTION.  AND
THERE IS NO DENIAL OF EQUAL PROTECTION IN EXCLUDING THEIR CHILDREN FROM
DOING THERE WHAT NO OTHER CHILDREN MAY DO. 

OUR RULING DOES NOT EXTEND BEYOND THE FACTS THE CASE PRESENTS.  WE
NEITHER LAY THE FOUNDATION "FOR ANY (THAT IS, EVERY) STATE INTERVENTION
IN THE INDOCTRINATION AND PARTICIPATION OF CHILDREN IN RELIGION" WHICH
MAY BE DONE "IN THE NAME OF THEIR HEALTH AND WELFARE" NOR GIVE WARRANT
FOR "EVERY LIMITATION ON THEIR RELIGIOUS TRAINING AND ACTIVITIES."  THE
RELIGIOUS TRAINING AND INDOCTRINATION OF CHILDREN MAY BE ACCOMPLISHED
IN MANY WAYS, SOME OF WHICH, AS WE HAVE NOTED, HAVE RECEIVED
CONSTITUTIONAL PROTECTION THROUGH DECISIONS OF THIS COURT.  THESE AND
ALL OTHERS EXCEPT THE PUBLIC PROCLAIMING OF RELIGION ON THE STREETS, IF
THIS MAY BE TAKEN AS EITHER TRAINING OR INDOCTRINATION OF THE
PROCLAIMER, REMAIN UNAFFECTED BY THE DECISION. 

THE JUDGMENT IS AFFIRMED. 

FN1 THE COURT FOUND THERE WAS NO EVIDENCE THAT APPELLANT WAS ASKED
BETTY'S AGE.  IT THEN HELD THAT CONVICTION FOR REFUSAL TO DISCLOSE THE
CHILD'S NAME, BASED ON THE CHARGE UNDER SEC. 79, WOULD VIOLATE ARTICLE
12 OF THE DECLARATION OF RIGHTS OF THE COMMONWEALTH, WHICH PROVIDES IN
PART:  "NO SUBJECT SHALL BE HELD TO ANSWER FOR ANY CRIMES OR OFFENCE,
UNTIL THE SAME IS FULLY AND PLAINLY, SUBSTANTIALLY AND FORMALLY,
DESCRIBED TO HIM; OR BE COMPELLED TO ACCUSE, OR FURNISH EVIDENCE
AGAINST HIMSELF." 

FN2  APPELLANT RECEIVED MODERATE FINES ON EACH COMPLAINT, FIRST IN
THE DISTRICT COURT OF BROCKTON, THEN ON PLEAS OF NOT GUILTY BY TRIAL DE
NOVO WITHOUT A JURY IN THE SUPERIOR COURT FOR PLYMOUTH COUNTY.  MOTIONS
TO DISMISS AND QUASH THE COMPLAINTS, FOR DIRECTED FINDINGS, AND FOR
RULINGS, WERE MADE SEASONABLY AND DENIED BY THE SUPERIOR COURT. 

FN3  MASS. GEN. LAWS (TER.  ED.)  C. 149, AS AMENDED BY ACTS AND
RESOLVES OF 1939, C. 461. 

FN4 CF. THE FACTS AS SET FORTH IN JAMISON V. TEXAS, 318 U.S. 413;
LARGENT V. TEXAS, 318 U.S. 418; MURDOCK V. PENNSYLVANIA, 319 U.S. 105;
BUSEY V. DISTRICT OF COLUMBIA, 75 U.S. APP. D.C. 352, 129 F.2D 24.  A
COMMON FEATURE IS THAT SPECIFIED SMALL SUMS ARE GENERALLY ASKED AND
RECEIVED BUT THE PUBLICATIONS MAY BE HAD WITHOUT THE PAYMENT IF SO
DESIRED. 

FN5  IN THIS RESPECT THE MASSACHUSETTS DECISION IS CONTRARY TO THE
TREND IN OTHER STATES.  COMPARE STATE V. MEAD, 230 IOWA 1217, 300 N.W.
523; STATE V. MEREDITH, 197 S.C. 351, 15 S.E.2D 678; STATE EX REL.
SEMANSKY V. STARK, 196 LA. 307, 199 SO. 129; SHREVEPORT V. TEAGUE, 200
LA. 679, 8 SO.2D 640; PEOPLE V. BARBER, 289 N.Y. 378, 46 N.E.2D 329;
THOMAS V. ATLANTA, 59 GA. APP. 520, 1 S.E.2D 598; CINCINNATI V. MOSIER,
61 OHIO APP. 81, 22 N.E.2D 418.  CONTRA:  MCSPARRAN V. PORTLAND
(CIRCUIT COURT, MULTNOMAH COUNTY, OREGON, JUNE 8, 1942), CERT. DENIED,
318 U.S. 768. 

FN6  THE COURT'S OPINION SAID:  "THE JUDGE COULD FIND THAT IF A
PASSER-BY SHOULD HAND OVER FIVE CENTS IN ACCORDANCE WITH THE SIGN ON
THE BAG AND SHOULD RECEIVE A MAGAZINE IN RETURN, A SALE WOULD BE
EFFECTED.  THE JUDGE WAS NOT REQUIRED TO ACCEPT THE DEFENDANT'S
CHARACTERIZATION OF THAT TRANSACTION AS A 'CONTRIBUTION.'  HE COULD
BELIEVE THAT SELLING THE LITERATURE PLAYED A MORE PROMINENT PART IN THE
ENTERPRISE THAN GIVING IT AWAY.  HE COULD FIND THAT THE DEFENDANT
FURNISHED THE MAGAZINES TO BETTY, KNOWING THAT THE LATTER INTENDED TO
SELL THEM, IF SHE COULD, IN VIOLATION OF SEC. 69.  ...  THE JUDGE COULD
FIND THAT THE DEFENDANT PERMITTED BETTY TO 'WORK' IN VIOLATION OF SEC.
81.  ...  WE CANNOT SAY THAT THE EVILS AT WHICH THE STATUTES WERE
DIRECTED ATTENDANT UPON THE SELLING BY CHILDREN OF NEWSPAPERS,
MAGAZINES, PERIODICALS, AND OTHER MERCHANDISE IN STREETS AND PUBLIC
PLACES DO NOT EXIST WHERE THE PUBLICATIONS ARE OF A RELIGIOUS NATURE." 
313 MASS. 223, 227-228. 

FN7  APPELLANT'S BRIEF SAYS:  "THE PURPOSE OF THE LEGISLATION IS TO
PROTECT CHILDREN FROM ECONOMIC EXPLOITATION AND KEEP THEM FROM THE
EVILS OF SUCH ENTERPRISES THAT CONTRIBUTE TO THE DEGRADATION OF
CHILDREN."  AND AT THE ARGUMENT COUNSEL STATED THE PROHIBITION WOULD BE
VALID AS AGAINST A CLAIM OF FREEDOM OF THE PRESS AS A NONRELIGIOUS
ACTIVITY. 

FN8  THE DUE PROCESS CLAIM, AS MADE AND PERHAPS NECESSARILY, EXTENDS
NO FURTHER THAN THAT TO FREEDOM OF RELIGION, SINCE IN THE CIRCUMSTANCES
ALL THAT IS COMPREHENDED IN THE FORMER IS INCLUDED IN THE LATTER. 

FN9  STATE V. BAILEY, 157 IND. 324, 61 N.E. 730; COMPARE MEYER V.
NEBRASKA, 262 U.S. 390; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510;
WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624. 

FN10  STURGES & BURN MFG. CO. V. BEAUCHAMP, 231 U.S. 320; COMPARE
MULLER V. OREGON, 208 U.S. 412. 

FN11  CF. PEOPLE V. EWER, 141 N.Y. 129, 36 N.E. 4. 

FN12  JACOBSON V. MASSACHUSETTS, 197 U.S. 11. 

FN13  SEE ALSO STATE V. CHENOWETH, 163 IND. 94, 71 N.E. 197; OWENS V.
STATE, 6 OKLA. CR. 110, 116 P. 345. 

FN14  PERTINENT ALSO ARE THE DECISIONS INVOLVING LICENSE FEATURES:
LOVELL V. CITY OF GRIFFIN, 303 U.S. 444; SCHNEIDER V. STATE, 308 U.S.
147; HAGUE V. COMMITTEE FOR INDUSTRIAL ORGANIZATION, 307 U.S. 496. 

FN15  SEE, E.G., VOLUMES 1-4, 6-8, 14, 18, REPORT ON CONDITION OF
WOMEN AND CHILD WAGE EARNERS IN THE UNITED STATES, SEN. DOC. NO. 645,
61ST CONG., 2D SESS.; THE WORKING CHILDREN OF BOSTON, U.S. DEPT. OF
LABOR, CHILDREN'S BUREAU PUBLICATION NO. 89(1922); FULLER, THE MEANING
OF CHILD LABOR (1922); FULLER AND STRONG, CHILD LABOR IN MASSACHUSETTS
(1926). 

FN16  SEE, E.G., CLOPPER, CHILD LABOR IN CITY STREETS (1912);
CHILDREN IN STREET WORK, U.S. DEPT. OF LABOR, CHILDREN'S BUREAU
PUBLICATION NO. 183(1928); CHILDREN ENGAGED IN NEWSPAPER AND MAGAZINE
SELLING AND DELIVERING, U.S. DEPT. OF LABOR, CHILDREN'S BUREAU
PUBLICATION NO. 227(1935). 

FN17  COX V. NEW HAMPSHIRE, 312 U.S. 569; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568. 

FN18  ALTHOUGH THE ARGUMENT POINTS TO THE GUARDIAN'S PRESENCE AS
SHOWING THE CHILD'S ACTIVITIES HERE WERE NOT HARMFUL, IT IS NOWHERE
CONCEDED IN THE BRIEFS THAT THE STATUTE COULD BE APPLIED, CONSISTENTLY
WITH THE GUARANTY OF RELIGIOUS FREEDOM, IF THE FACTS HAD BEEN ALTERED
ONLY BY THE GUARDIAN'S ABSENCE. 

MR. JUSTICE MURPHY, DISSENTING: 

THIS ATTEMPT BY THE STATE OF MASSACHUSETTS TO PROHIBIT A CHILD FROM
EXERCISING HER CONSTITUTIONAL RIGHT TO PRACTICE HER RELIGION ON THE
PUBLIC STREETS CANNOT, IN MY OPINION, BE SUSTAINED. 

THE RECORD MAKES CLEAR THE BASIC FACT THAT BETTY SIMMONS, THE NINE
YEAR OLD CHILD IN QUESTION, WAS ENGAGED IN A GENUINE RELIGIOUS, RATHER
THAN COMMERCIAL, ACTIVITY.  SHE WAS A MEMBER OF JEHOVAH'S WITNESSES AND
HAD BEEN TAUGHT THE TENETS OF THAT SECT BY HER GUARDIAN, THE
APPELLANT.  SUCH TENETS INCLUDED THE DUTY OF PUBLICLY DISTRIBUTING
RELIGIOUS TRACTS ON THE STREET AND FROM DOOR TO DOOR.  PURSUANT TO THIS
RELIGIOUS DUTY AND IN THE COMPANY OF THE APPELLANT, BETTY SIMMONS ON
THE NIGHT OF DECEMBER 18, 1941, WAS STANDING ON A PUBLIC STREET CORNER
AND OFFERING TO DISTRIBUTE JEHOVAH'S WITNESS LITERATURE TO PASSERSBY. 
THERE WAS NO EXPECTATION OF PECUNIARY PROFIT TO HERSELF OR TO
APPELLANT.  IT IS UNDISPUTED, FURTHERMORE, THAT SHE DID THIS OF HER OWN
DESIRE AND WITH APPELLANT'S CONSENT.  SHE TESTIFIED THAT SHE WAS
MOTIVATED BY HER LOVE OF THE LORD AND THAT HE COMMANDED HER TO
DISTRIBUTE THIS LITERATURE; THIS WAS, SHE DECLARED, HER WAY OF
WORSHIPPING GOD.  SHE WAS OCCUPIED, IN OTHER WORDS, IN "AN AGE-OLD FORM
OF MISSIONARY EVANGELISM" WITH A PURPOSE "AS EVANGELICAL AS THE REVIVAL
MEETING."  MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 108, 109. 

RELIGIOUS TRAINING AND ACTIVITY, WHETHER PERFORMED BY ADULT OR CHILD,
ARE PROTECTED BY THE FOURTEENTH AMENDMENT AGAINST INTERFERENCE BY STATE
ACTION, EXCEPT INSOFAR AS THEY VIOLATE REASONABLE REGULATIONS ADOPTED
FOR THE PROTECTION OF THE PUBLIC HEALTH, MORALS AND WELFARE.  OUR
PROBLEM HERE IS WHETHER A STATE, UNDER THE GUISE OF ENFORCING ITS CHILD
LABOR LAWS, CAN LAWFULLY PROHIBIT GIRLS UNDER THE AGE OF EIGHTEEN AND
BOYS UNDER THE AGE OF TWELVE FROM PRACTICING THEIR RELIGIOUS FAITH
INSOFAR AS IT INVOLVES THE DISTRIBUTION OR SALE OF RELIGIOUS TRACTS ON
THE PUBLIC STREETS.  NO QUESTION OF FREEDOM OF SPEECH OR FREEDOM OF
PRESS IS PRESENT AND WE ARE NOT CALLED UPON TO DETERMINE THE
PERMISSIBLE RESTRAINTS ON THOSE RIGHTS.  NOR ARE ANY TRUANCY OR CURFEW
RESTRICTIONS IN ISSUE.  THE STATUTES IN QUESTION PROHIBIT ALL CHILDREN
WITHIN THE SPECIFIED AGE LIMITS FROM SELLING OR OFFERING TO SELL "ANY
NEWSPAPERS, MAGAZINES, PERIODICALS OR ANY OTHER ARTICLES OF MERCHANDISE
OF ANY DESCRIPTION  ...  IN ANY STREET OR PUBLIC PLACE."  CRIMINAL
SANCTIONS ARE IMPOSED ON THE PARENTS AND GUARDIANS WHO COMPEL OR PERMIT
MINORS IN THEIR CONTROL TO ENGAGE IN THE PROHIBITED TRANSACTIONS.  THE
STATE COURT HAS CONSTRUED THESE STATUTES TO COVER THE ACTIVITIES HERE
INVOLVED, CF. STATE V. RICHARDSON, 92 N.H. 178, 27 A.2D 94, THEREBY
IMPOSING AN INDIRECT RESTRAINT THROUGH THE PARENTS AND GUARDIANS ON THE
FREE EXERCISE BY MINORS OF THEIR RELIGIOUS BELIEFS.  THIS INDIRECT
RESTRAINT IS NO LESS EFFECTIVE THAN A DIRECT ONE.  A SQUARE CONFLICT
BETWEEN THE CONSTITUTIONAL GUARANTEE OF RELIGIOUS FREEDOM AND THE
STATE'S LEGITIMATE INTEREST IN PROTECTING THE WELFARE OF ITS CHILDREN
IS THUS PRESENTED. 

AS THE OPINION OF THE COURT DEMONSTRATES, THE POWER OF THE STATE
LAWFULLY TO CONTROL THE RELIGIOUS AND OTHER ACTIVITIES OF CHILDREN IS
GREATER THAN ITS POWER OVER SIMILAR ACTIVITIES OF ADULTS.  BUT THAT
FACT IS NO MORE DECISIVE OF THE ISSUE POSED BY THIS CASE THAN IS THE
OBVIOUS FACT THAT THE FAMILY ITSELF IS SUBJECT TO REASONABLE REGULATION
IN THE PUBLIC INTEREST.  WE ARE CONCERNED SOLELY WITH THE
REASONABLENESS OF THIS PARTICULAR PROHIBITION OF RELIGIOUS ACTIVITY BY
CHILDREN. 

IN DEALING WITH THE VALIDITY OF STATUTES WHICH DIRECTLY OR INDIRECTLY
INFRINGE RELIGIOUS FREEDOM AND THE RIGHT OF PARENTS TO ENCOURAGE THEIR
CHILDREN IN THE PRACTICE OF A RELIGIOUS BELIEF, WE ARE NOT AIDED BY ANY
STRONG PRESUMPTION OF THE CONSTITUTIONALITY OF SUCH LEGISLATION. 
UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 152, NOTE 4.  ON
THE CONTRARY, THE HUMAN FREEDOMS ENUMERATED IN THE FIRST AMENDMENT AND
CARRIED OVER INTO THE FOURTEENTH AMENDMENT ARE TO BE PRESUMED TO BE
INVULNERABLE AND ANY ATTEMPT TO SWEEP AWAY THOSE FREEDOMS IS PRIMA
FACIE INVALID.  IT FOLLOWS THAT ANY RESTRICTION OR PROHIBITION MUST BE
JUSTIFIED BY THOSE WHO DENY THAT THE FREEDOMS HAVE BEEN UNLAWFULLY
INVADED.  THE BURDEN WAS THEREFORE ON THE STATE OF MASSACHUSETTS TO
PROVE THE REASONABLENESS AND NECESSITY OF PROHIBITING CHILDREN FROM
ENGAGING IN RELIGIOUS ACTIVITY OF THE TYPE INVOLVED IN THIS CASE. 

THE BURDEN IN THIS INSTANCE, HOWEVER, IS NOT MET BY VAGUE REFERENCES
TO THE REASONABLENESS UNDERLYING CHILD LABOR LEGISLATION IN GENERAL. 
THE GREAT INTEREST OF THE STATE IN SHIELDING MINORS FROM THE EVIL
VICISSITUDES OF EARLY LIFE DOES NOT WARRANT EVERY LIMITATION ON THEIR
RELIGIOUS TRAINING AND ACTIVITIES.  THE REASONABLENESS THAT JUSTIFIES
THE PROHIBITION OF THE ORDINARY DISTRIBUTION OF LITERATURE IN THE
PUBLIC STREETS BY CHILDREN IS NOT NECESSARILY THE REASONABLENESS THAT
JUSTIFIES SUCH A DRASTIC RESTRICTION WHEN THE DISTRIBUTION IS PART OF
THEIR RELIGIOUS FAITH.  MURDOCK V. PENNSYLVANIA, SUPRA, 111.  IF THE
RIGHT OF A CHILD TO PRACTICE ITS RELIGION IN THAT MANNER IS TO BE
FORBIDDEN BY CONSTITUTIONAL MEANS, THERE MUST BE CONVINCING PROOF THAT
SUCH A PRACTICE CONSTITUTES A GRAVE AND IMMEDIATE DANGER TO THE STATE
OR TO THE HEALTH, MORALS OR WELFARE OF THE CHILD.  WEST VIRGINIA STATE
BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624, 639.  THE VITAL FREEDOM
OF RELIGION, WHICH IS "OF THE VERY ESSENCE OF A SCHEME OF ORDERED
LIBERTY," PALKO V. CONNECTICUT, 302 U.S. 319, 325, CANNOT BE ERASED BY
SLENDER REFERENCES TO THE STATE'S POWER TO RESTRICT THE MORE SECULAR
ACTIVITIES OF CHILDREN. 

THE STATE, IN MY OPINION, HAS COMPLETELY FAILED TO SUSTAIN ITS BURDEN
OF PROVING THE EXISTENCE OF ANY GRAVE OR IMMEDIATE DANGER TO ANY
INTEREST WHICH IT MAY LAWFULLY PROTECT.  THERE IS NO PROOF THAT BETTY
SIMMONS' MODE OF WORSHIP CONSTITUTED A SERIOUS MENACE TO THE PUBLIC. 
IT WAS CARRIED ON IN AN ORDERLY, LAWFUL MANNER AT A PUBLIC STREET
CORNER.  AND "ONE WHO IS RIGHTFULLY ON A STREET WHICH THE STATE HAS
LEFT OPEN TO THE PUBLIC CARRIES WITH HIM THERE AS ELSEWHERE THE
CONSTITUTIONAL RIGHT TO EXPRESS HIS VIEWS IN AN ORDERLY FASHION.  THIS
RIGHT EXTENDS TO THE COMMUNICATION OF IDEAS BY HANDBILLS AND LITERATURE
AS WELL AS BY THE SPOKEN WORD."  JAMISON V. TEXAS, 318 U.S. 413, 416. 
THE SIDEWALK, NO LESS THAN THE CATHEDRAL OR THE EVANGELIST'S TENT, IS A
PROPER PLACE, UNDER THE CONSTITUTION, FOR THE ORDERLY WORSHIP OF GOD. 
SUCH USE OF THE STREETS IS AS NECESSARY TO THE JEHOVAH'S WITNESSES, THE
SALVATION ARMY AND OTHERS WHO PRACTICE RELIGION WITHOUT BENEFIT OF
CONVENTIONAL SHELTERS AS IS THE USE OF THE STREETS FOR PURPOSES OF
PASSAGE. 

IT IS CLAIMED, HOWEVER, THAT SUCH ACTIVITY WAS LIKELY TO AFFECT
ADVERSELY THE HEALTH, MORALS AND WELFARE OF THE CHILD.  REFERENCE IS
MADE IN THE MAJORITY OPINION TO "THE CRIPPLING EFFECTS OF CHILD
EMPLOYMENT, MORE ESPECIALLY IN PUBLIC PLACES, AND THE POSSIBLE HARMS
ARISING FROM OTHER ACTIVITIES SUBJECT TO ALL THE DIVERSE INFLUENCES OF
THE STREET."  TO THE EXTENT THAT THEY FLOW FROM PARTICIPATION IN
ORDINARY COMMERCIAL ACTIVITIES, THESE HARMS ARE IRRELEVANT TO THIS
CASE.  AND THE BARE POSSIBILITY THAT SUCH HARMS MIGHT EMANATE FROM
DISTRIBUTION OF RELIGIOUS LITERATURE IS NOT, STANDING ALONE, SUFFICIENT
JUSTIFICATION FOR RESTRICTING FREEDOM OF CONSCIENCE AND RELIGION.  NOR
CAN PARENTS OR GUARDIANS BE SUBJECTED TO CRIMINAL LIABILITY BECAUSE OF
VAGUE POSSIBILITIES THAT THEIR RELIGIOUS TEACHINGS MIGHT CAUSE INJURY
TO THE CHILD.  THE EVILS MUST BE GRAVE, IMMEDIATE, SUBSTANTIAL.  CF.
BRIDGES V. CALIFORNIA, 314 U.S. 252, 262.  YET THERE IS NOT THE
SLIGHTEST INDICATION IN THIS RECORD, OR IN SOURCES SUBJECT TO JUDICIAL
NOTICE, THAT CHILDREN ENGAGED IN DISTRIBUTING LITERATURE PURSUANT TO
THEIR RELIGIOUS BELIEFS HAVE BEEN OR ARE LIKELY TO BE SUBJECT TO ANY OF
THE HARMFUL "DIVERSE INFLUENCES OF THE STREET."  INDEED, IF
PROBABILITIES ARE TO BE INDULGED IN, THE LIKELIHOOD IS THAT CHILDREN
ENGAGED IN SERIOUS RELIGIOUS ENDEAVOR ARE IMMUNE FROM SUCH INFLUENCES. 
GAMBLING, TRUANCY, IRREGULAR EATING AND SLEEPING HABITS, AND THE MORE
SERIOUS VICES ARE NOT CONSISTENT WITH THE HIGH MORAL CHARACTER
ORDINARILY DISPLAYED BY CHILDREN FULFILLING RELIGIOUS OBLIGATIONS. 
MOREOVER, JEHOVAH'S WITNESS CHILDREN INVARIABLY MAKE THEIR
DISTRIBUTIONS IN GROUPS SUBJECT AT ALL TIMES TO ADULT OR PARENTAL
CONTROL, AS WAS DONE IN THIS CASE.  THE DANGERS ARE THUS EXCEEDINGLY
REMOTE, TO SAY THE LEAST.  AND THE FACT THAT THE ZEALOUS EXERCISE OF
THE RIGHT TO PROPAGANDIZE THE COMMUNITY MAY RESULT IN VIOLENT OR
DISORDERLY SITUATIONS DIFFICULT FOR CHILDREN TO FACE IS NO EXCUSE FOR
PROHIBITING THE EXERCISE OF THAT RIGHT. 

NO CHAPTER IN HUMAN HISTORY HAS BEEN SO LARGELY WRITTEN IN TERMS OF
PERSECUTION AND INTOLERANCE AS THE ONE DEALING WITH RELIGIOUS FREEDOM. 
FROM ANCIENT TIMES TO THE PRESENT DAY, THE INGENUITY OF MAN HAS KNOWN
NO LIMITS IN ITS ABILITY TO FORGE WEAPONS OF OPPRESSION FOR USE AGAINST
THOSE WHO DARE TO EXPRESS OR PRACTICE UNORTHODOX RELIGIOUS BELIEFS. 
AND THE JEHOVAH'S WITNESSES ARE LIVING PROOF OF THE FACT THAT EVEN IN
THIS NATION, CONCEIVED AS IT WAS IN THE IDEALS OF FREEDOM, THE RIGHT TO
PRACTICE RELIGION IN UNCONVENTIONAL WAYS IS STILL FAR FROM SECURE. 
THEIRS IS A MILITANT AND UNPOPULAR FAITH, PURSUED WITH A FANATICAL
ZEAL.  THEY HAVE SUFFERED BRUTAL BEATINGS; THEIR PROPERTY HAS BEEN
DESTROYED; THEY HAVE BEEN HARASSED AT EVERY TURN BY THE RESURRECTION
AND ENFORCEMENT OF LITTLE USED ORDINANCES AND STATUTES.  SEE MULDER AND
COMISKY, "JEHOVAH'S WITNESSES MOLD CONSTITUTIONAL LAW," 2 BILL OF
RIGHTS REVIEW, NO. 4, P. 262.  TO THEM, ALONG WITH OTHER PRESENT-DAY
RELIGIOUS MINORITIES, BEFALLS THE BURDEN OF TESTING OUR DEVOTION TO THE
IDEALS AND CONSTITUTIONAL GUARANTEES OF RELIGIOUS FREEDOM.  WE SHOULD
THEREFORE HESITATE BEFORE APPROVING THE APPLICATION OF A STATUTE THAT
MIGHT BE USED AS ANOTHER INSTRUMENT OF OPPRESSION.  RELIGIOUS FREEDOM
IS TOO SACRED A RIGHT TO BE RESTRICTED OR PROHIBITED IN ANY DEGREE
WITHOUT CONVINCING PROOF THAT A LEGITIMATE INTEREST OF THE STATE IS IN
GRAVE DANGER. 

MR. JUSTICE JACKSON: 

THE NOVEL FEATURE OF THIS DECISION IS THIS:  THE COURT HOLDS THAT A
STATE MAY APPLY CHILD LABOR LAWS TO RESTRICT OR PROHIBIT AN ACTIVITY OF
WHICH, AS RECENTLY AS LAST TERM, IT HELD:  "THIS FORM OF RELIGIOUS
ACTIVITY OCCUPIES THE SAME HIGH ESTATE UNDER THE FIRST AMENDMENT AS DO
WORSHIP IN THE CHURCHES AND PREACHING FROM THE PULPITS.  IT HAS THE
SAME CLAIM TO PROTECTION AS THE MORE ORTHODOX AND CONVENTIONAL
EXERCISES OF RELIGION."  "  ...  THE MERE FACT THAT THE RELIGIOUS
LITERATURE IS 'SOLD' BY ITINERANT PREACHERS RATHER THAN 'DONATED' DOES
NOT TRANSFORM EVANGELISM INTO A COMMERCIAL ENTERPRISE.  IF IT DID, THEN
THE PASSING OF THE COLLECTION PLATE IN CHURCH WOULD MAKE THE CHURCH
SERVICE A COMMERCIAL PROJECT.  THE CONSTITUTIONAL RIGHTS OF THOSE
SPREADING THEIR RELIGIOUS BELIEFS THROUGH THE SPOKEN AND PRINTED WORD
ARE NOT TO BE GAUGED BY STANDARDS GOVERNING RETAILERS OR WHOLESALERS OF
BOOKS."  MURDOCK V. PENNSYLVANIA, 319 U.S. 105, 109, 111. 

IT IS DIFFICULT FOR ME TO BELIEVE THAT GOING UPON THE STREETS TO
ACCOST THE PUBLIC IS THE SAME THING FOR APPLICATION OF PUBLIC LAW AS
WITHDRAWING TO A PRIVATE STRUCTURE FOR RELIGIOUS WORSHIP.  BUT IF
WORSHIP IN THE CHURCHES AND THE ACTIVITY OF JEHOVAH'S WITNESSES ON THE
STREETS "OCCUPY THE SAME HIGH ESTATE" AND HAVE THE "SAME CLAIM TO
PROTECTION" IT WOULD SEEM THAT CHILD LABOR LAWS MAY BE APPLIED TO BOTH
IF TO EITHER.  IF THE MURDOCK DOCTRINE STANDS ALONG WITH TODAY'S
DECISION, A FOUNDATION IS LAID FOR ANY STATE INTERVENTION IN THE
INDOCTRINATION AND PARTICIPATION OF CHILDREN IN RELIGION, PROVIDED IT
IS DONE IN THE NAME OF THEIR HEALTH OR WELFARE. 

THIS CASE BRINGS TO THE SURFACE THE REAL BASIS OF DISAGREEMENT AMONG
MEMBERS OF THIS COURT IN PREVIOUS JEHOVAH'S WITNESS CASES.  MURDOCK V.
PENNSYLVANIA, 319 U.S. 105; MARTIN V. STRUTHERS, 319 U.S. 141; JONES V.
OPELIKA, 316 U.S. 584, 319 U.S. 103; DOUGLAS V. JEANNETTE, 319 U.S.
157.  OUR BASIC DIFFERENCE SEEMS TO BE AS TO THE METHOD OF ESTABLISHING
LIMITATIONS WHICH OF NECESSITY BOUND RELIGIOUS FREEDOM. 

MY OWN VIEW MAY BE SHORTLY PUT:  I THINK THE LIMITS BEGIN TO OPERATE
WHENEVER ACTIVITIES BEGIN TO AFFECT OR COLLIDE WITH LIBERTIES OF OTHERS
OR OF THE PUBLIC.  RELIGIOUS ACTIVITIES WHICH CONCERN ONLY MEMBERS OF
THE FAITH ARE AND OUGHT TO BE FREE - AS NEARLY ABSOLUTELY FREE AS
ANYTHING CAN BE.  BUT BEYOND THESE, MANY RELIGIOUS DENOMINATIONS OR
MEANS FROM UNBELIEVERS TO SUSTAIN THE WORSHIPPERS AND THEIR LEADERS. 
THEY RAISE MONEY, NOT MERELY BY PASSING THE PLATE TO THOSE WHO
VOLUNTARILY ATTEND SERVICES OR BY CONTRIBUTIONS BY THEIR OWN PEOPLE,
BUT BY SOLICITATIONS AND DRIVES ADDRESSED TO THE PUBLIC BY HOLDING
PUBLIC DINNERS AND ENTERTAINMENTS, BY VARIOUS KINDS OF SALES AND BINGO
GAMES AND LOTTERIES.  ALL SUCH MONEYRAISING ACTIVITIES ON A PUBLIC
SCALE ARE, I THINK, CAESAR'S AFFAIRS AND MAY BE REGULATED BY THE STATE
SO LONG AS IT DOES NOT DISCRIMINATE AGAINST ONE BECAUSE HE IS DOING
THEM FOR A RELIGIOUS PURPOSE, AND THE REGULATION IS NOT ARBITRARY AND
CAPRICIOUS, IN VIOLATION OF OTHER PROVISIONS OF THE CONSTITUTION. 

THE COURT IN THE MURDOCK CASE REJECTED THIS PRINCIPLE OF SEPARATING
IMMUNE RELIGIOUS ACTIVITIES FROM SECULAR ONES IN DECLARING THE
DISABILITIES WHICH THE CONSTITUTION IMPOSED ON LOCAL AUTHORITIES. 
INSTEAD, THE COURT NOW DRAWS A LINE BASED ON AGE THAT CUTS ACROSS BOTH
TRUE EXERCISE OF RELIGION AND AUXILIARY SECULAR ACTIVITIES.  I THINK
THIS IS NOT A CORRECT PRINCIPLE FOR DEFINING THE ACTIVITIES IMMUNE FROM
REGULATION ON GROUNDS OF RELIGION, AND MURDOCK OVERRULES THE GROUNDS ON
WHICH I THINK AFFIRMANCE SHOULD REST.  I HAVE NO ALTERNATIVE BUT TO
DISSENT FROM THE GROUNDS OF AFFIRMANCE OF A JUDGMENT WHICH I THINK WAS
RIGHTLY DECIDED, AND UPON RIGHT GROUNDS, BY THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS.  313 MASS. 223. 

MR. JUSTICE ROBERTS AND MR. JUSTICE FRANKFURTER JOIN IN THIS
OPINION. 
..END :



SNOWDEN V. HUGHES, 321 U.S. 1 


NO. 57.  ARGUED DECEMBER 13, 1943.  - DECIDED JANUARY 17, 1944.  - 132
F.2D 476, AFFIRMED. 


1.  ALLEGATIONS OF A COMPLAINT IN THE FEDERAL DISTRICT COURT, IN
SUBSTANCE THAT THE DEFENDANTS, MEMBERS OF A STATE BOARD ACTING AS SUCH
BUT IN VIOLATION OF STATE LAW, BY THEIR FAILURE AND REFUSAL TO CERTIFY
CORRECTLY THE RESULTS OF A PRIMARY, DEPRIVED THE COMPLAINANT OF
NOMINATION AND ELECTION AS A REPRESENTATIVE IN THE STATE ASSEMBLY, HELD
INSUFFICIENT TO STATE A CAUSE OF ACTION UNDER THE FOURTEENTH AMENDMENT
OR THE CIVIL RIGHTS ACT OF 1871.  PP. 5, 13. 

2.  THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT
DOES NOT PROTECT RIGHTS DERIVED SOLELY FROM THE RELATIONSHIP OF THE
CITIZEN AND HIS STATE ESTABLISHED BY STATE LAW.  P. 6. 

3.  THE RIGHT TO BECOME A CANDIDATE FOR STATE OFFICE IS NOT A RIGHT
OR PRIVILEGE PROTECTED BY THE PRIVILEGES AND IMMUNITIES CLAUSE.  P. 7. 

4.  THE UNLAWFUL DENIAL BY STATE ACTION OF A RIGHT TO A STATE
POLITICAL OFFICE IS NOT A DENIAL OF A RIGHT OF PROPERTY OR OF LIBERTY
SECURED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 7. 

5.  THE ACTION OF THE STATE BOARD, THOUGH IT BE REGARDED AS STATE
ACTION, DID NOT DENY THE EQUAL PROTECTION OF THE LAWS IN VIOLATION OF
THE FOURTEENTH AMENDMENT.  P. 7. 

(A)  WHERE A STATUTE REQUIRES OFFICIAL ACTION DISCRIMINATING BETWEEN
A SUCCESSFUL AND AN UNSUCCESSFUL CANDIDATE, THE REQUIRED ACTION IS NOT
A DENIAL OF EQUAL PROTECTION, SINCE THE DISTINCTION BETWEEN THE
SUCCESSFUL AND THE UNSUCCESSFUL CANDIDATE IS BASED ON A PERMISSIBLE
CLASSIFICATION.  P. 8. 

(B)  THE UNLAWFUL ADMINISTRATION OF A STATE STATUTE FAIR ON ITS FACE,
RESULTING IN ITS UNEQUAL APPLICATION TO THOSE ENTITLED TO BE TREATED
ALIKE, IS NOT A DENIAL OF EQUAL PROTECTION UNLESS THERE IS SHOWN TO BE
PRESENT AN ELEMENT OF INTENTIONAL OR PURPOSEFUL DISCRIMINATION.  P. 8. 

(C)  THE ILLEGALITY UNDER STATE LAW OF THE ACTION TAKEN NEITHER ADDS
TO NOR SUBTRACTS FROM ITS VALIDITY UNDER THE FOURTEENTH AMENDMENT.  P.
11. 

6.  WHETHER THE ACTION OF THE STATE BOARD IN THIS CASE WAS STATE
ACTION WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT IS NOT DECIDED. 
P. 13. 

SNOWDEN V. HUGHES ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 319 U.S. 738, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT IN A SUIT TO RECOVER DAMAGES FOR INFRINGEMENT
OF CIVIL RIGHTS. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A CITIZEN OF ILLINOIS, BROUGHT THIS SUIT AT LAW IN THE
DISTRICT COURT FOR NORTHERN ILLINOIS AGAINST RESPONDENTS, CITIZENS OF
ILLINOIS, TO RECOVER DAMAGES FOR INFRINGEMENT OF HIS CIVIL RIGHTS IN
VIOLATION OF THE FOURTEENTH AMENDMENT AND 8 U.S.C. SECS. 41, 43, AND
47(3).  HE ALLEGED THAT THE SUIT WAS WITHIN THE JURISDICTION OF THE
COURT AS A SUIT ARISING UNDER THE CONSTITUTION AND LAWS OF THE UNITED
STATES, 28 U.S.C. SEC. 41(1), A SUIT FOR THE RECOVERY OF DAMAGES FOR
INJURY TO PROPERTY AND FOR DEPRIVATION OF A RIGHT OR PRIVILEGE OF A
CITIZEN OF THE UNITED STATES, 28 U.S.C. SEC. 41(12), AND A SUIT FOR THE
RECOVERY OF DAMAGES FOR DEPRIVATION, UNDER COLOR OF STATE LAW, CUSTOM,
REGULATION OR USAGE, OF A RIGHT OR PRIVILEGE SECURED BY THE FOURTEENTH
AMENDMENT, 28 U.S.C. SEC. 41(14). 

THE COMPLAINT MAKES THE FOLLOWING ALLEGATIONS.  PETITIONER WAS ONE OF
SEVERAL CANDIDATES AT THE APRIL 9, 1940, REPUBLICAN PRIMARY ELECTION
HELD IN THE THIRD SENATORIAL DISTRICT OF ILLINOIS PURSUANT TO ILL. REV.
STAT. (STATE BAR ASSN. ED.), CH. 46, ART. 8 FOR NOMINEES FOR THE OFFICE
OF REPRESENTATIVE IN THE ILLINOIS GENERAL ASSEMBLY.  BY REASON OF
APPROPRIATE ACTION TAKEN RESPECTIVELY BY THE REPUBLICAN AND DEMOCRATIC
SENATORIAL COMMITTEES OF THE THIRD SENATORIAL DISTRICT IN CONFORMITY TO
THE SCHEME OF PROPORTIONAL REPRESENTATION AUTHORIZED BY ILL. REV.
STAT., CH. 46, SEC. 8-13, TWO CANDIDATES FOR REPRESENTATIVE IN THE
GENERAL ASSEMBLY WERE TO BE NOMINATED ON THE REPUBLICAN TICKET AND ONE
ON THE DEMOCRATIC TICKET.  SINCE THREE REPRESENTATIVES WERE TO BE
ELECTED, ILL. CONST., ART. IV, SECS. 7 AND 8, AND ONLY THREE WERE TO BE
NOMINATED BY THE PRIMARY ELECTION, ELECTION AT THE PRIMARY AS ONE OF
THE TWO REPUBLICAN NOMINEES WAS, SO THE COMPLAINT ALLEGES, TANTAMOUNT
TO ELECTION TO THE OFFICE OF REPRESENTATIVE. 

THE VOTES CAST AT THE PRIMARY ELECTION WERE DULY CANVASSED BY THE
CANVASSING BOARD OF COOK COUNTY, WHICH, AS REQUIRED BY ILL. REV. STAT.,
CH. 46, SEC. 8-15, CERTIFIED AND FORWARDED TO THE SECRETARY OF STATE A
TABULATION SHOWING THE RESULTS OF THE PRIMARY ELECTION IN THE THIRD
SENATORIAL DISTRICT.  BY THIS TABULATION THE BOARD CERTIFIED THAT
PETITIONER AND ANOTHER HAD RECEIVED RESPECTIVELY THE SECOND HIGHEST AND
HIGHEST NUMBER OF VOTES FOR THE REPUBLICAN NOMINATIONS.  ILL. REV.
STAT., CH. 46, SEC. 8-13 REQUIRES THAT THE CANDIDATES RECEIVING THE
HIGHEST VOTES SHALL BE DECLARED NOMINATED. 

RESPONDENTS HUGHES AND LEWIS, AND HENRY HORNER WHOSE EXECUTORS WERE
JOINED AS DEFENDANTS AND ARE RESPONDENTS HERE, CONSTITUTED THE STATE
PRIMARY CANVASSING BOARD FOR THE ELECTION YEAR 1940.  BY ILL. REV.
STAT., CH. 46, SEC. 8-15 IT WAS MADE THEIR DUTY TO RECEIVE THE
CERTIFIED TABULATED STATEMENTS OF VOTES CAST, INCLUDING THAT PREPARED
BY THE CANVASSING BOARD OF COOK COUNTY, TO CANVASS THE RETURNS, TO
PROCLAIM THE RESULTS AND TO ISSUE CERTIFICATES OF NOMINATION TO THE
SUCCESSFUL CANDIDATES.  SUCH A CERTIFICATE IS A PREREQUISITE TO THE
INCLUSION OF A CANDIDATE'S NAME ON THE BALLOT.  ILL. REV. STAT., CH.
46, SEC. 10-14.  ACTING IN THEIR OFFICIAL CAPACITY AS STATE PRIMARY
CANVASSING BOARD THEY ISSUED, ON APRIL 29, 1940, THEIR OFFICIAL
PROCLAMATION WHICH DESIGNATED ONLY ONE NOMINEE FOR THE OFFICE OF
REPRESENTATIVE IN THE GENERAL ASSEMBLY FROM THE THIRD SENATORIAL
DISTRICT ON THE REPUBLICAN TICKET AND EXCLUDED FROM THE NOMINATION
PETITIONER, WHO HAD RECEIVED THE SECOND HIGHEST NUMBER OF VOTES FOR THE
REPUBLICAN NOMINATION. 

AFTER SETTING OUT THESE FACTS THE COMPLAINT ALLEGES THAT HORNER AND
RESPONDENTS HUGHES AND LEWIS, "WILLFULLY, MALICIOUSLY AND ARBITRARILY"
FAILED AND REFUSED TO FILE WITH THE SECRETARY OF STATE A CORRECT
CERTIFICATE SHOWING THAT PETITIONER WAS ONE OF THE REPUBLICAN NOMINEES,
THAT THEY CONSPIRED AND CONFEDERATED TOGETHER FOR THAT PURPOSE, AND
THAT THEIR ACTION CONSTITUTED "AN UNEQUAL, UNJUST AND OPPRESSIVE
ADMINISTRATION" OF THE LAWS OF ILLINOIS.  IT ALLEGES THAT HORNER,
HUGHES AND LEWIS, ACTING AS STATE OFFICIALS UNDER COLOR OF THE LAWS OF
ILLINOIS, THEREBY DEPRIVED PETITIONER OF THE REPUBLICAN NOMINATION FOR
REPRESENTATIVE IN THE GENERAL ASSEMBLY AND OF ELECTION TO THAT OFFICE,
TO HIS DAMAGE IN THE AMOUNT OF $50,000, AND BY SO DOING DEPRIVED
PETITIONER, IN CONTRAVENTION OF 8 U.S.C. SECS. 41, 43 AND 47(3), OF
RIGHTS, PRIVILEGES AND IMMUNITIES SECURED TO HIM AS A CITIZEN OF THE
UNITED STATES, AND OF THE EQUAL PROTECTION OF THE LAWS, BOTH GUARANTEED
TO HIM BY THE FOURTEENTH AMENDMENT. 

THE DISTRICT COURT GRANTED MOTIONS BY RESPONDENTS TO STRIKE THE
COMPLAINT AND DISMISS THE SUIT UPON THE GROUNDS, AMONG OTHERS, THAT THE
FACTS ALLEGED DID NOT SHOW THAT THE PLAINTIFF HAD BEEN DEPRIVED OF ANY
RIGHT, PRIVILEGE OR IMMUNITY SECURED TO HIM BY THE CONSTITUTION OR LAWS
OF THE UNITED STATES, AND THAT, THE ALLEGED CAUSE OF ACTION BEING
PREDICATED SOLELY UPON A CLAIM THAT STATE OFFICERS HAD FAILED TO
PERFORM DUTIES IMPOSED UPON THEM BY STATE LAW, THEIR FAILURE WAS NOT
STATE ACTION TO WHICH THE PROHIBITIONS OF THE FOURTEENTH AMENDMENT ARE
ALONE DIRECTED, AND HENCE WAS NOT SUFFICIENT TO ESTABLISH AN
INFRINGEMENT OF RIGHTS SECURED TO PETITIONER BY THE FOURTEENTH
AMENDMENT.  THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED, 132
F.2D 476, HOLDING ON AUTHORITY OF BARNEY V. CITY OF NEW YORK, 193 U.S.
430, THAT THE ACTION OF THE MEMBERS OF THE STATE BOARD, BEING CONTRARY
TO STATE LAW, WAS NOT STATE ACTION AND WAS THEREFORE NOT WITHIN THE
PROHIBITIONS OF THE FOURTEENTH AMENDMENT. 

IN SUBSTANCE PETITIONER'S ALLEGED CAUSE OF ACTION IS THAT THE MEMBERS
OF THE STATE PRIMARY CANVASSING BOARD, ACTING AS SUCH BUT IN VIOLATION
OF STATE LAW, HAVE BY THEIR FALSE CERTIFICATE OR PROCLAMATION AND BY
THEIR REFUSAL TO FILE A TRUE CERTIFICATE DEPRIVED PETITIONER OF
NOMINATION AND ELECTION AS REPRESENTATIVE IN THE STATE ASSEMBLY.  TO
ESTABLISH A CAUSE OF ACTION ARISING UNDER THE CONSTITUTION AND LAWS OF
THE UNITED STATES WITHIN THE JURISDICTION OF THE DISTRICT COURT AS
PRESCRIBED BY 28 U.S.C. SEC. 41(1), (12) AND (14), HE RELIES
PARTICULARLY ON THE PROVISIONS OF THE FOURTEENTH AMENDMENT SUPPLEMENTED
BY TWO SECTIONS OF THE CIVIL RIGHTS ACT OF 1871, 8 U.S.C. SECS. 43,
47(3).  FN1 

STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE, OF AND STATE  ... ,
SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES
OR OTHER PERSON  ...  TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE
PARTY INJURED IN AN ACTION AT LAW ...  FOR REDRESS."  SECTION 47(3), SO
FAR AS NOW RELEVANT, GIVES AN ACTION FOR DAMAGES TO ANY PERSON "INJURED
IN HIS PERSON OR PROPERTY, OR DEPRIVED OF HAVING AND EXERCISING ANY
RIGHT OR PRIVILEGE OF A CITIZEN OF THE UNITED STATES," BY REASON OF A
CONSPIRACY OF TWO OR MORE PERSONS ENTERED INTO "FOR THE PURPOSE OF
DEPRIVING  ...  ANY PERSON  ...  OF THE EQUAL PROTECTION OF THE LAWS,
OR OF EQUAL PRIVILEGES AND IMMUNITIES UNDER THE LAWS."  IT IS THE
CONTENTION OF PETITIONER THAT THE RIGHT CONFERRED ON HIM BY STATE LAW
TO BECOME A CANDIDATE FOR AND TO BE ELECTED TO THE OFFICE OF
REPRESENTATIVE UPON RECEIPT OF THE REQUISITE NUMBER OF VOTES IN THE
PRIMARY AND GENERAL ELECTIONS, IS A RIGHT SECURED TO HIM BY THE
FOURTEENTH AMENDMENT, AND THAT THE ACTION OF THE STATE PRIMARY
CANVASSING BOARD DEPRIVED HIM OF THAT RIGHT AND OF THE EQUAL PROTECTION
OF THE LAWS FOR WHICH DEPRIVATION THE CIVIL RIGHTS ACT AUTHORIZES HIS
SUIT FOR DAMAGES. 

THREE DISTINCT PROVISIONS OF THE FOURTEENTH AMENDMENT GUARANTEE
RIGHTS OF PERSONS AND PROPERTY.  IT DECLARES THAT "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." 

THE PROTECTION EXTENDED TO CITIZENS OF THE UNITED STATES BY THE
PRIVILEGES AND IMMUNITIES CLAUSE INCLUDES THOSE RIGHTS AND PRIVILEGES
WHICH, UNDER THE LAWS AND CONSTITUTION OF THE UNITED STATES, ARE
INCIDENT TO CITIZENSHIP OF THE UNITED STATES, BUT DOES NOT INCLUDE
RIGHTS PERTAINING TO STATE CITIZENSHIP AND DERIVED SOLELY FROM THE
RELATIONSHIP OF THE CITIZEN AND HIS STATE ESTABLISHED BY STATE LAW. 
SLAUGHTER-HOUSE CASES, 16 WALL.  36, 74, 79; MAXWELL V. BUGBEE, 250
U.S. 525, 538; PRUDENTIAL INSURANCE CO. V. CHEEK, 259 U.S. 530, 539;
MADDEN V. KENTUCKY, 309 U.S. 83, 90-93.  THE RIGHT TO BECOME A
CANDIDATE FOR STATE OFFICE, LIKE THE RIGHT TO VOTE FOR THE ELECTION OF
STATE OFFICERS, MINOR V. HAPPERSETT, 21 WALL.  162, 170-78; POPE V.
WILLIAMS, 193 U.S. 621, 632; BREEDLOVE V. SUTTLES, 302 U.S. 277, 283,
IS A RIGHT OR PRIVILEGE OF STATE CITIZENSHIP, NOT OF NATIONAL
CITIZENSHIP WHICH ALONE IS PROTECTED BY THE PRIVILEGES AND IMMUNITIES
CLAUSE. 

MORE THAN FORTY YEARS AGO THIS COURT DETERMINED THAT AN UNLAWFUL
DENIAL BY STATE ACTION OF A RIGHT TO STATE POLITICAL OFFICE IS NOT A
DENIAL OF A RIGHT OF PROPERTY OR OF LIBERTY SECURED BY THE DUE PROCESS
CLAUSE.  TAYLOR & MARSHALL V. BECKHAM, 178 U.S. 548.  ONLY ONCE SINCE
HAS THIS COURT HAD OCCASION TO CONSIDER THE QUESTION AND IT THEN
REAFFIRMED THAT CONCLUSION, CAVE V. NEWELL, 246 U.S. 650, AS WE
REAFFIRM IT NOW. 

NOR CAN WE CONCLUDE THAT THE ACTION OF THE STATE PRIMARY CANVASSING
BOARD, EVEN THOUGH IT BE REGARDED AS STATE ACTION WITHIN THE
PROHIBITIONS OF THE FOURTEENTH AMENDMENT, WAS A DENIAL OF THE EQUAL
PROTECTION OF THE LAWS.  THE DENIAL ALLEGED IS OF THE RIGHT OF
PETITIONER TO BE A CANDIDATE FOR AND TO BE ELECTED TO PUBLIC OFFICE
UPON RECEIVING A SUFFICIENT NUMBER OF VOTES.  THE RIGHT IS ONE SECURED
TO HIM BY STATE STATUTE AND THE DEPRIVATION OF RIGHT IS ALLEGED TO
RESULT SOLELY FROM THE BOARD'S FAILURE TO OBEY STATE LAW.  THERE IS NO
CONTENTION THAT THE STATUTES OF THE STATE ARE IN ANY RESPECT
INCONSISTENT WITH THE GUARANTEES OF THE FOURTEENTH AMENDMENT.  THERE IS
NO ALLEGATION OF ANY FACTS TENDING TO SHOW THAT IN REFUSING TO CERTIFY
PETITIONER AS A NOMINEE, THE BOARD WAS MAKING ANY INTENTIONAL OR
PURPOSEFUL DISCRIMINATION BETWEEN PERSONS OR CLASSES.  ON THE ARGUMENT
BEFORE US PETITIONER DISCLAIMED ANY CONTENTION THAT CLASS OR RACIAL
DISCRIMINATION IS INVOLVED.  THE INSISTENCE IS RATHER THAT THE BOARD,
MERELY BY FAILING TO CERTIFY PETITIONER AS A DULY ELECTED NOMINEE, HAS
DENIED TO HIM A RIGHT CONFERRED BY STATE LAW AND HAS THEREBY DENIED TO
HIM THE EQUAL PROTECTION OF THE LAWS SECURED BY THE FOURTEENTH
AMENDMENT. 

BUT NOT EVERY DENIAL OF A RIGHT CONFERRED BY STATE LAW INVOLVES A
DENIAL OF THE EQUAL PROTECTION OF THE LAWS, EVEN THOUGH THE DENIAL OF
THE RIGHT TO ONE PERSON MAY OPERATE TO CONFER IT ON ANOTHER.  WHERE, AS
HERE, A STATUTE REQUIRES OFFICIAL ACTION DISCRIMINATING BETWEEN A
SUCCESSFUL AND AN UNSUCCESSFUL CANDIDATE, THE REQUIRED ACTION IS NOT A
DENIAL OF EQUAL PROTECTION SINCE THE DISTINCTION BETWEEN THE SUCCESSFUL
AND THE UNSUCCESSFUL CANDIDATE IS BASED ON A PERMISSIBLE
CLASSIFICATION.  AND WHERE THE OFFICIAL ACTION PURPORTS TO BE IN
CONFORMITY TO THE STATUTORY CLASSIFICATION, AN ERRONEOUS OR MISTAKEN
PERFORMANCE OF THE STATUTORY DUTY, ALTHOUGH A VIOLATION OF THE STATUTE,
IS NOT WITHOUT MORE A DENIAL OF THE EQUAL PROTECTION OF THE LAWS. 

THE UNLAWFUL ADMINISTRATION BY STATE OFFICERS OF A STATE STATUTE FAIR
ON ITS FACE, RESULTING IN ITS UNEQUAL APPLICATION TO THOSE WHO ARE
ENTITLED TO BE TREATED ALIKE, IS NOT A DENIAL OF EQUAL PROTECTION
UNLESS THERE IS SHOWN TO BE PRESENT IN IT AN ELEMENT OF INTENTIONAL OR
PURPOSEFUL DISCRIMINATION.  THIS MAY APPEAR ON THE FACE OF THE ACTION
TAKEN WITH RESPECT TO A PARTICULAR CLASS OR PERSON, CF. MCFARLAND V.
AMERICAN SUGAR CO., 241 U.S. 79, 86-7, OR IT MAY ONLY BE SHOWN BY
EXTRINSIC EVIDENCE SHOWING A DISCRIMINATORY DESIGN TO FAVOR ONE
INDIVIDUAL OR CLASS OVER ANOTHER NOT TO BE INFERRED FROM THE ACTION
ITSELF, YICK WO V. HOPKINS, 118 U.S. 356, 373-4.  BUT A DISCRIMINATORY
PURPOSE IS NOT PRESUMED, TARRANCE V. FLORIDA, 188 U.S. 519, 520; THERE
MUST BE A SHOWING OF "CLEAR AND INTENTIONAL DISCRIMINATION," GUNDLING
V. CHICAGO, 177 U.S. 183, 186; SEE AH SIN V. WITTMAN, 198 U.S. 500, 507
8; BAILEY V. ALABAMA, 219 U.S. 219, 231.  THUS THE DENIAL OF EQUAL
PROTECTION BY THE EXCLUSION OF NEGROES FROM A JURY MAY BE SHOWN BY
EXTRINSIC EVIDENCE OF A PURPOSEFUL DISCRIMINATORY ADMINISTRATION OF A
STATUTE FAIR ON ITS FACE.  NEAL V. DELAWARE, 103 U.S. 370, 394, 397;
NORRIS V. ALABAMA, 294 U.S. 587, 589; PIERRE V. LOUISIANA, 306 U.S.
354, 357; SMITH V. TEXAS, 311 U.S. 128, 130-31; HILL V. TEXAS, 316 U.S.
400, 404.  BUT A MERE SHOWING THAT NEGROES WERE NOT INCLUDED IN A
PARTICULAR JURY IS NOT ENOUGH; THERE MUST BE A SHOWING OF ACTUAL
DISCRIMINATION BECAUSE OF RACE.  VIRGINIA V. RIVES, 100 U.S. 313, 322
3; MARTIN V. TEXAS, 200 U.S. 316, 320-21; THOMAS V. TEXAS, 212 U.S.
278, 282; CF. WILLIAMS V. MISSISSIPPI, 170 U.S. 213, 225.    ANOTHER
FAMILIAR EXAMPLE IS THE FAILURE OF STATE TAXING OFFICIALS TO ASSESS
PROPERTY FOR TAXATION ON A UNIFORM STANDARD OF VALUATION AS REQUIRED BY
THE ASSESSMENT LAWS.  IT IS NOT ENOUGH TO ESTABLISH A DENIAL OF EQUAL
PROTECTION THAT SOME ARE ASSESSED AT A HIGHER VALUATION THAN OTHERS. 
THE DIFFERENCE MUST BE DUE TO A PURPOSEFUL DISCRIMINATION, WHICH MAY BE
EVIDENCED, FOR EXAMPLE, BY A SYSTEMATIC UNDER-VALUATION OF THE PROPERTY
OF SOME TAXPAYERS AND A SYSTEMATIC OVER-VALUATION OF THE PROPERTY OF
OTHERS, SO THAT THE PRACTICAL EFFECT OF THE OFFICIAL BREACH OF LAW IS
THE SAME AS THOUGH THE DISCRIMINATION WERE INCORPORATED IN AND
PROCLAIMED BY THE STATUTE.  COULTER V. LOUISVILLE & NASHVILLE R. CO.,
196 U.S. 599, 607, 609-10; CHICAGO, B. & Q. RY. CO. V. BABCOCK, 204
U.S. 585, 597; SUNDAY LAKE IRON CO. V. WAKEFIELD, 247 U.S. 350, 353;
SOUTHERN RY. CO. V. WATTS, 260 U.S. 519, 526.  FN2  SUCH DISCRIMINATION
MAY ALSO BE SHOWN TO BE PURPOSEFUL, AND HENCE A DENIAL OF EQUAL
PROTECTION, EVEN THOUGH IT IS NEITHER SYSTEMATIC NOR LONG-CONTINUED. 
CF. MCFARLAND V. AMERICAN SUGAR CO., SUPRA. 

THE LACK OF ANY ALLEGATIONS IN THE COMPLAINT HERE, TENDING TO SHOW A
PURPOSEFUL DISCRIMINATION BETWEEN PERSONS OR CLASSES OF PERSONS IS NOT
SUPPLIED BY THE OPPROBRIOUS EPITHETS "WILLFUL" AND "MALICIOUS" APPLIED
TO THE BOARD'S FAILURE TO CERTIFY PETITIONER AS A SUCCESSFUL CANDIDATE,
OR BY CHARACTERIZING THAT FAILURE AS AN UNEQUAL, UNJUST, AND OPPRESSIVE
ADMINISTRATION OF THE LAWS OF ILLINOIS.  THESE EPITHETS DISCLOSE
NOTHING AS TO THE PURPOSE OR CONSEQUENCE OF THE FAILURE TO CERTIFY,
OTHER THAN THAT PETITIONER HAS BEEN DEPRIVED OF THE NOMINATION AND
ELECTION, AND THEREFORE ADD NOTHING TO THE BARE FACT OF AN INTENTIONAL
DEPRIVATION OF PETITIONER'S RIGHT TO BE CERTIFIED TO A NOMINATION TO
WHICH NO OTHER HAS BEEN CERTIFIED.  CF. UNITED STATES V. ILLINOIS
CENTRAL R. CO., 303 U.S. 239, 243.  SO FAR AS APPEARS THE BOARD'S
FAILURE TO CERTIFY PETITIONER WAS UNAFFECTED BY AND UNRELATED TO THE
CERTIFICATION OF ANY OTHER NOMINEE.  SUCH ALLEGATIONS ARE INSUFFICIENT
UNDER OUR DECISIONS TO RAISE ANY ISSUE OF EQUAL PROTECTION OF THE LAWS
OR TO CALL UPON A FEDERAL COURT TO TRY QUESTIONS OF STATE LAW IN ORDER
TO DISCOVER A PURPOSEFUL DISCRIMINATION IN THE ADMINISTRATION OF THE
LAWS OF ILLINOIS WHICH IS NOT ALLEGED.  INDEED ON THE ALLEGATIONS OF
THE COMPLAINT, THE ONE REPUBLICAN NOMINEE CERTIFIED BY THE BOARD WAS
ENTITLED TO BE CERTIFIED AS THE NOMINEE RECEIVING THE HIGHEST NUMBER OF
VOTES, AND THE BOARD'S FAILURE TO CERTIFY PETITIONER, SO FAR AS
APPEARS, WAS UNAFFECTED BY AND UNRELATED TO THE CERTIFICATION OF THE
OTHER, SUCCESSFUL NOMINEE.  WHILE THE FAILURE TO CERTIFY PETITIONER FOR
ONE NOMINATION AND THE CERTIFICATION OF ANOTHER FOR A DIFFERENT
NOMINATION MAY HAVE INVOLVED A VIOLATION OF STATE LAW, WE FAIL TO SEE
IN THIS A DENIAL OF THE EQUAL PROTECTION OF THE LAWS MORE THAN IF THE
ILLINOIS STATUTES THEMSELVES HAD PROVIDED THAT ONE CANDIDATE SHOULD BE
CERTIFIED AND NO OTHER. 

IF THE ACTION OF THE BOARD IS OFFICIAL ACTION IT IS SUBJECT TO
CONSTITUTIONAL INFIRMITY TO THE SAME BUT NO GREATER EXTENT THAN IF THE
ACTION WERE TAKEN BY THE STATE LEGISLATURE.  ITS ILLEGALITY UNDER THE
STATE STATUTE CAN NEITHER ADD TO NOR SUBTRACT FROM ITS CONSTITUTIONAL
VALIDITY.  MERE VIOLATION OF A STATE STATUTE DOES NOT INFRINGE THE
FEDERAL CONSTITUTION.  COMPARE OWENSBORO WATERWORKS CO. V. OWENSBORO,
200 U.S. 38, 47.  AND STATE ACTION, EVEN THOUGH ILLEGAL UNDER STATE
LAW, CAN BE NO MORE AND NO LESS CONSTITUTIONAL UNDER THE FOURTEENTH
AMENDMENT THAN IF IT WERE SANCTIONED BY THE STATE LEGISLATURE. 
NASHVILLE, C. & ST. L. RY. V. BROWNING, 310 U.S. 362, 369-70.  SEE ALSO
COULTER V. LOUISVILLE & NASHVILLE R. CO., SUPRA, 608-9; HAYMAN V.
GALVESTON, 273 U.S. 414, 416; IOWA-DES MOINES BANK V. BENNETT, 284 U.S.
239, 244.  A STATE STATUTE WHICH PROVIDED THAT ONE NOMINEE RATHER THAN
TWO SHOULD BE CERTIFIED IN A PARTICULAR ELECTION DISTRICT WOULD NOT BE
UNCONSTITUTIONAL ON ITS FACE AND WOULD BE OPEN TO ATTACK ONLY IF IT
WERE SHOWN, AS IT IS NOT HERE, THAT THE EXCLUSION OF ONE AND THE
ELECTION OF ANOTHER WERE INVIDIOUS AND PURPOSELY DISCRIMINATORY. 
COMPARE MISSOURI V. LEWIS, 101 U.S. 22, 30, 32; YICK WO V. HOPKINS,
SUPRA. 

WHERE DISCRIMINATION IS SUFFICIENTLY SHOWN, THE RIGHT TO RELIEF UNDER
THE EQUAL PROTECTION CLAUSE IS NOT DIMINISHED BY THE FACT THAT THE
DISCRIMINATION RELATES TO POLITICAL RIGHTS.  MCPHERSON V. BLACKER, 146
U.S. 1, 23-4; NIXON V. HERNDON, 273 U.S. 536, 538; NIXON V. CONDON, 286
U.S. 73; SEE POPE V. WILLIAMS, SUPRA, 634.  BUT THE NECESSITY OF A
SHOWING OF PURPOSEFUL DISCRIMINATION IS NO LESS IN A CASE INVOLVING
POLITICAL RIGHTS THAN IN ANY OTHER.  IT WAS NOT INTENDED BY THE
FOURTEENTH AMENDMENT AND THE CIVIL RIGHTS ACTS THAT ALL MATTERS
FORMERLY WITHIN THE EXCLUSIVE COGNIZANCE OF THE STATES SHOULD BECOME
MATTERS OF NATIONAL CONCERN. 

A CONSTRUCTION OF THE EQUAL PROTECTION CLAUSE WHICH WOULD FIND A
VIOLATION OF FEDERAL RIGHT IN EVERY DEPARTURE BY STATE OFFICERS FROM
STATE LAW IS NOT TO BE FAVORED.  AND IT IS NOT WITHOUT SIGNIFICANCE
THAT WE ARE NOT CITED TO AND HAVE BEEN UNABLE TO FIND A SINGLE INSTANCE
IN WHICH THIS COURT HAS ENTERTAINED THE NOTION THAT AN UNLAWFUL DENIAL
BY STATE AUTHORITY OF THE RIGHT TO STATE OFFICE IS WITHOUT MORE A
DENIAL OF ANY RIGHT SECURED BY THE FOURTEENTH AMENDMENT.  SEE TAYLOR &
MARSHALL V. BECKHAM, SUPRA, AND AUTHORITIES CITED; CAVE V. NEWELL,
SUPRA.  ONLY ONCE HAS IT BEEN CONTENDED HERE THAT AN UNLAWFUL DENIAL BY
STATE EXECUTIVE, ADMINISTRATIVE OR LEGISLATIVE AUTHORITY OF THE RIGHT
TO STATE OFFICE IS FOR THAT REASON ALONE A DENIAL OF EQUAL PROTECTION. 
WILSON V. NORTH CAROLINA, 169 U.S. 586.  FN3  IN REJECTING THAT
CONTENTION THIS COURT SAID AT PAGES 594-5:  "IN ITS INTERNAL
ADMINISTRATION THE STATE (SO FAR AS CONCERNS THE FEDERAL GOVERNMENT)
HAS ENTIRE FREEDOM OF CHOICE AS TO THE CREATION OF AN OFFICE FOR PURELY
STATE PURPOSES, AND OF THE TERMS UPON WHICH IT SHALL BE HELD BY THE
PERSON FILLING THE OFFICE.  ... 

"UPON THE CASE MADE BY THE PLAINTIFF IN ERROR, THE FEDERAL QUESTION
WHICH HE ATTEMPTS TO RAISE IS SO UNFOUNDED IN SUBSTANCE THAT WE ARE
JUSTIFIED IN SAYING THAT IT DOES NOT REALLY EXIST; THAT THERE IS NO
FAIR COLOR FOR CLAIMING THAT HIS RIGHTS UNDER THE FEDERAL CONSTITUTION
HAVE BEEN VIOLATED, EITHER BY DEPRIVING HIM OF HIS PROPERTY WITHOUT DUE
PROCESS OF LAW OR BY DENYING HIM THE EQUAL PROTECTION OF THE LAWS." 

AS WE CONCLUDE THAT THE RIGHT ASSERTED BY PETITIONER IS NOT ONE
SECURED BY THE FOURTEENTH AMENDMENT AND AFFORDS NO BASIS FOR A SUIT
BROUGHT UNDER THE SECTIONS OF THE CIVIL RIGHTS ACTS RELIED UPON, WE
FIND IT UNNECESSARY TO CONSIDER WHETHER THE ACTION BY THE STATE BOARD
OF WHICH PETITIONER COMPLAINS IS STATE ACTION WITHIN THE MEANING OF THE
FOURTEENTH AMENDMENT.  THE AUTHORITY OF BARNEY V. CITY OF NEW YORK,
SUPRA, ON WHICH THE COURT BELOW RELIED, HAS BEEN SO RESTRICTED BY OUR
LATER DECISIONS, SEE RAYMOND V. CHICAGO TRACTION CO., 207 U.S. 20, 37;
HOME TEL. & TEL. CO. V. LOS ANGELES, 227 U.S. 278, 294; IOWA-DES MOINES
BANK V. BENNETT, SUPRA, 246-7; CF. UNITED STATES V. CLASSIC, 313 U.S.
299, 326, THAT OUR DETERMINATION MAY BE MORE PROPERLY AND MORE
CERTAINLY RESTED ON PETITIONER'S FAILURE TO ASSERT A RIGHT OF A NATURE
SUCH AS THE FOURTEENTH AMENDMENT PROTECTS AGAINST STATE ACTION. 

THE JUDGMENT IS ACCORDINGLY AFFIRMED FOR FAILURE OF THE COMPLAINT TO
STATE A CAUSE OF ACTION WITHIN THE JURISDICTION OF THE DISTRICT COURT. 
AFFIRMED. 

FN1  8 U.S.C. SEC. 41, ON WHICH PETITIONER ALSO RELIES, GUARANTIES TO
ALL PERSONS WITHIN THE UNITED STATES "THE SAME RIGHT  ...  TO THE FULL
AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE SECURITY OF
PERSONS AND PROPERTY AS IS ENJOYED BY WHITE CITIZENS."  AS POINTED OUT
LATER IN THIS OPINION, NO CLAIM OF DISCRIMINATION BASED ON RACE IS
MADE. 

FN2  SEE ALSO RAYMOND V. CHICAGO UNION TRACTION CO., 207 U.S. 20, 36;
SIOUX CITY BRIDGE CO. V. DAKOTA CO., 260 U.S. 441, 447; BOHLER V.
CALLOWAY, 267 U.S. 479, 489; CUMBERLAND COAL CO. V. BOARD OF REVISION,
284 U.S. 23, 25, 28; CF. GREAT NORTHERN RY. CO. V. WEEKS, 297 U.S. 135,
139. 

FN3  IN UNITED STATES V. CLASSIC, 313 U.S. 299, THIS COURT REFUSED TO
PASS ON A SIMILAR CONTENTION AS TO A REFUSAL TO COUNT BALLOTS CAST IN
AN ELECTION FOR FEDERAL OFFICERS.  THE HOLDING IN THAT CASE THAT A
REFUSAL TO COUNT VOTES CAST, AND THE CONSEQUENT FALSE CERTIFICATION OF
CANDIDATES, WAS A DENIAL OF A RIGHT OR PRIVILEGE "SECURED  ...  BY THE
CONSTITUTION  ...  OF THE UNITED STATES" WAS RESTED ON THE GROUND THAT
THE RIGHT TO VOTE FOR A FEDERAL OFFICER, WHETHER OR NOT IT BE DEEMED A
PRIVILEGE OF CITIZENS OF THE UNITED STATES, SEE TWINING V. NEW JERSEY,
211 U.S. 78, 97, IS A RIGHT SECURED BY ART. 1, SECS. 2 AND 4 OF THE
CONSTITUTION.  SEE 313 U.S. AT 314-5 AND CASES CITED; UNITED STATES V.
MOSLEY, 238 U.S. 383.  THE COURT POINTED OUT THAT "THE INDICTMENT ON
ITS FACE DOES NOT PURPORT TO CHARGE A DEPRIVATION OF EQUAL PROTECTION
TO VOTERS OR CANDIDATES," 313 U.S. AT 329, AND DECLINED TO CONSIDER
WHETHER THE FACTS ALLEGED COULD CONSTITUTE SUCH A DENIAL. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

THE PLAINTIFF BROUGHT THIS ACTION IN A DISTRICT COURT TO RECOVER
DAMAGES CLAIMED TO HAVE BEEN SUFFERED AT THE HANDS OF THE DEFENDANTS AS
MEMBERS OF THE STATE PRIMARY CANVASSING BOARD OF ILLINOIS.  THE THEORY
OF HIS CLAIM IS THAT THE DEFENDANTS, BEING IN LEGAL EFFECT THE STATE OF
ILLINOIS, DENIED TO THE PLAINTIFF THE EQUAL PROTECTION OF ITS LAWS. 

THE CRUCIAL ALLEGATIONS CHARGING SUCH A DENIAL ARE IN THE FOLLOWING
PARAGRAPH OF THE COMPLAINT: 

"11.  THAT NOTWITHSTANDING THE CLEAR AND PLAIN MANDATES OF SECTION
454 AND SECTION 456, CHAPTER 46, ILLINOIS REVISED STATUTES, THE
DEFENDANTS EDWARD J. HUGHES AND LOUIE E. LEWIS, AND THE DECEDENT HENRY
HORNER, ACTING AS THE STATE PRIMARY CANVASSING BOARD OF ILLINOIS,
ENTERED INTO AN UNDERSTANDING AND AGREEMENT AND COMBINED, CONSPIRED AND
CONFEDERATED TOGETHER TO WILLFULLY, MALICIOUSLY AND ARBITRARILY REFUSE
TO DESIGNATE PLAINTIFF AS ONE OF THE NOMINEES OF THE REPUBLICAN PARTY
FOR THE OFFICE OF REPRESENTATIVE IN THE GENERAL ASSEMBLY FROM THE THIRD
SENATORIAL DISTRICT OF ILLINOIS AND TO ISSUE THEIR OFFICIAL
PROCLAMATION DESIGNATING PLAINTIFF AS ONE OF THE SAID NOMINEES AND TO
FILE THEIR PROPER AND CORRECT CERTIFICATE IN THE OFFICE OF THE
SECRETARY OF STATE OF ILLINOIS SHOWING THAT PLAINTIFF WAS ONE OF THE
NOMINEES OF THE REPUBLICAN PARTY FOR THE OFFICE OF REPRESENTATIVE IN
THE GENERAL ASSEMBLY FROM THE THIRD SENATORIAL DISTRICT OF ILLINOIS." 

I SHOULD BE SILENT WERE THE COURT MERELY TO HOLD THAT AS A MATTER OF
PLEADING THESE ALLEGATIONS ARE NOT SUFFICIENTLY EXPLICIT TO CHARGE AS
AN ARBITRARY ACT OF DISCRIMINATION THE CONCERTED AND PURPOSEFUL USE BY
THE DEFENDANTS OF THEIR OFFICIAL AUTHORITY OVER THE ELECTION MACHINERY
OF THE STATE SO AS TO WITHHOLD FROM THE PLAINTIFF THE OPPORTUNITY TO
PRESENT HIMSELF TO THE VOTERS OF THAT STATE "AS ONE OF THE NOMINEES OF
THE REPUBLICAN PARTY" FOR ELECTION TO THE GENERAL ASSEMBLY OF
ILLINOIS.  I SHOULD BE SILENT EVEN THOUGH IT WERE AVOWED THAT SUCH A
CONSTRAINED READING OF THE COMPLAINT REFLECTED THE MOST EXACTING
ATTITUDE AGAINST DRAWING INTO THE FEDERAL COURTS CONTROVERSIES OVER
STATE ELECTIONS.  UNLESS I MISTAKE THE TENOR OF THE COURT'S OPINION,
THE DECISION IS BROADER THAN MERE INADEQUACY OF PLEADING. 

ALL QUESTIONS PERTAINING TO THE POLITICAL ARRANGEMENTS OF STATE
GOVERNMENTS ARE, NO DOUBT, PECULIARLY OUTSIDE THE DOMAIN OF FEDERAL
AUTHORITY.  THE DISPOSITION OF STATE OFFICES, THE MANNER IN WHICH THEY
SHOULD BE FILLED AND CONTESTS CONCERNING THEM, ARE SOLELY FOR STATE
DETERMINATION, ALWAYS PROVIDED THAT THE EQUALITY OF TREATMENT REQUIRED
BY THE CIVIL WAR AMENDMENTS IS RESPECTED.  AND SO I APPRECIATE THAT
THERE ARE STRONG CONSIDERATIONS OF POLICY WHICH SHOULD MAKE FEDERAL
COURTS INHOSPITABLE TOWARD LITIGATION INVOLVING THE ENFORCEMENT OF
STATE ELECTION LAWS.  BUT I DO NOT THINK THAT THE CRITERIA FOR
ESTABLISHING A DENIAL OF THE EQUAL PROTECTION OF THE LAWS ARE ANY
DIFFERENT IN CASES OF DISCRIMINATION IN GRANTING OPPORTUNITIES FOR
PRESENTING ONESELF AS A CANDIDATE FOR OFFICE "AS ONE OF THE NOMINEES OF
THE REPUBLICAN PARTY" THAN THOSE THAT ARE RELEVANT WHEN CLAIM IS MADE
THAT A STATE HAS DISCRIMINATED IN REGULATING THE PURSUIT OF A PRIVATE
CALLING.  IT APPEARS EXTREMELY UNLIKELY THAT THE PLAINTIFF COULD
ESTABLISH HIS CASE.  THE SOLE QUESTION NOW IS WHETHER, ASSUMING HE CAN
MAKE GOOD HIS ALLEGATIONS, HE SHOULD BE DENIED THE OPPORTUNITY OF A
TRIAL TO DO SO. 

THE CONSTITUTION DOES NOT ASSURE UNIFORMITY OF DECISIONS OR IMMUNITY
FROM MERELY ERRONEOUS ACTION, WHETHER BY THE COURTS OR THE EXECUTIVE
AGENCIES OF A STATE.  SEE MCGOVERN V. NEW YORK, 229 U.S. 363, 370-1. 
HOWEVER, IN FORBIDDING A STATE TO "DENY TO ANY PERSON WITHIN ITS
JURISDICTION THE EQUAL PROTECTION OF THE LAWS," THE FOURTEENTH
AMENDMENT DOES NOT PERMIT A STATE TO DENY THE EQUAL PROTECTION OF ITS
LAWS BECAUSE SUCH DENIAL IS NOT WHOLESALE.  THE TALK IN SOME OF THE
CASES ABOUT SYSTEMATIC DISCRIMINATION IS ONLY A WAY OF INDICATING THAT
IN ORDER TO GIVE RISE TO A CONSTITUTIONAL GRIEVANCE A DEPARTURE FROM A
NORM MUST BE ROOTED IN DESIGN AND NOT DERIVE MERELY FROM ERROR OR
FALLIBLE JUDGMENT.  SPEAKING OF A SITUATION IN WHICH CONSCIOUS
DISCRIMINATION BY A STATE TOUCHES "THE PLAINTIFF ALONE," THIS COURT
TERSELY EXPRESSED THE GOVERNING PRINCIPLE BY OBSERVING THAT "WE SUPPOSE
THAT NO ONE WOULD CONTEND THAT THE PLAINTIFF WAS GIVEN THE EQUAL
PROTECTION OF THE LAWS."  MCFARLAND V. AMERICAN SUGAR CO., 241 U.S. 79,
86, 87.  AND IF THE HIGHEST COURT OF A STATE SHOULD CANDIDLY DENY TO
ONE LITIGANT A RULE OF LAW WHICH IT CONCEDEDLY WOULD APPLY TO ALL OTHER
LITIGANTS IN SIMILAR SITUATIONS, COULD IT ESCAPE CONDEMNATION AS AN
UNJUST DISCRIMINATION AND THEREFORE A DENIAL OF THE EQUAL PROTECTION OF
THE LAWS?  SEE BACKUS V. FORT STREET UNION DEPOT CO., 169 U.S. 557,
571.    BUT TO CONSTITUTE SUCH UNJUST DISCRIMINATION THE ACTION MUST BE
THAT OF THE STATE.  SINCE THE STATE, FOR PRESENT PURPOSES, CAN ONLY ACT
THROUGH FUNCTIONARIES, THE QUESTION NATURALLY ARISES WHAT
FUNCTIONARIES, ACTING UNDER WHAT CIRCUMSTANCES, ARE TO BE DEEMED THE
STATE FOR PURPOSES OF BRINGING SUIT IN THE FEDERAL COURTS ON THE BASIS
OF ILLEGAL STATE ACTION.  THE PROBLEM IS BESET WITH INHERENT
DIFFICULTIES AND NOT UNNATURALLY HAS HAD A FLUCTUATING HISTORY IN THE
DECISIONS OF THE COURT.  COMPARE BARNEY V. CITY OF NEW YORK, 193 U.S.
430, WITH RAYMOND V. CHICAGO TRACTION CO., 207 U.S. 20, MEMPHIS V.
CUMBERLAND TELEPHONE CO., 218 U.S. 624, WITH HOME TEL. & TEL. CO. V.
LOS ANGELES, 227 U.S. 278.  IT IS NOT TO BE RESOLVED BY ABSTRACT
CONSIDERATIONS SUCH AS THE FACT THAT EVERY OFFICIAL WHO PURPORTS TO
WIELD POWER CONFERRED BY A STATE IS PRO TANTO THE STATE.  OTHERWISE
EVERY ILLEGAL DISCRIMINATION BY A POLICEMAN ON THE BEAT WOULD BE STATE
ACTION FOR PURPOSE OF SUIT IN A FEDERAL COURT. 

OUR QUESTION IS NOT WHETHER A REMEDY IS AVAILABLE FOR SUCH AN
ILLEGALITY, BUT WHETHER IT IS AVAILABLE IN THE FIRST INSTANCE IN A
FEDERAL COURT.  SUCH A PROBLEM OF FEDERAL JUDICIAL CONTROL MUST BE
PLACED IN THE HISTORIC CONTEXT OF THE RELATIONSHIP OF THE FEDERAL
COURTS TO THE STATES, WITH DUE REGARD FOR THE NATURAL SENSITIVENESS OF
THE STATES AND FOR THE APPROPRIATE RESPONSIBILITY OF STATE COURTS TO
CORRECT THE ACTION OF LOWER STATE COURTS AND STATE OFFICIALS.  SEE,
E.G., EX PARTE ROYALL, 117 U.S. 241, 251.  TAKE THE PRESENT CASE.  THE
PLAINTIFF COMPLAINS THAT HE HAS BEEN DENIED THE EQUAL PROTECTION OF THE
LAWS OF ILLINOIS PRECISELY BECAUSE THE DEFENDANTS, CONSTITUTING THE
STATE CANVASSING BOARD, HAVE WILLFULLY, WITH SET PURPOSE TO WITHDRAW
FROM HIM THE PRIVILEGES AFFORDED BY ILLINOIS, DISOBEYED THOSE LAWS.  TO
ADAPT THE LANGUAGE OF AN EARLIER OPINION, I AM UNABLE TO GRASP THE
PRINCIPLE ON WHICH THE STATE CAN HERE BE SAID TO DENY THE PLAINTIFF THE
EQUAL PROTECTION OF THE LAWS OF THE STATE WHEN THE FOUNDATION OF HIS
CLAIM IS THAT THE BOARD HAD DISOBEYED THE AUTHENTIC COMMAND OF THE
STATE.  HOLMES, J., DISSENTING, IN RAYMOND V. CHICAGO TRACTION CO.,
SUPRA AT P. 41. 

I AM CLEAR, THEREFORE, THAT THE ACTION OF THE CANVASSING BOARD TAKEN,
AS THE PLAINTIFF HIMSELF ACKNOWLEDGES, IN DEFIANCE OF THE DUTY OF THAT
BOARD UNDER ILLINOIS LAW, CANNOT BE DEEMED THE ACTION OF THE STATE,
CERTAINLY NOT UNTIL THE HIGHEST COURT OF THE STATE CONFIRMS SUCH ACTION
AND THEREBY MAKES IT THE LAW OF THE STATE.  I AGREE, IN A WORD, WITH
THE COURT BELOW THAT BARNEY V. CITY OF NEW YORK, 193 U.S. 430, IS
CONTROLLING.  SEE ISSEKS, JURISDICTION OF THE LOWER FEDERAL COURTS TO
ENJOIN UNAUTHORIZED ACTION OF STATE OFFICIALS, 40 HARV. L. REV. 969. 
NEITHER THE WISDOM OF ITS REASONING NOR ITS HOLDING HAS BEEN IMPAIRED
BY SUBSEQUENT DECISIONS.  A DIFFERENT PROBLEM IS PRESENTED WHEN A CASE
COMES HERE ON REVIEW FROM A DECISION OF A STATE COURT AS THE ULTIMATE
VOICE OF STATE LAW.  SEE FOR INSTANCE IOWA-DES MOINES BANK V. BENNETT,
284 U.S. 239.  AND THE CASE IS WHOLLY UNLIKE LANE V. WILSON, 307 U.S.
268, IN WHICH THE ELECTION OFFICIALS ACTED NOT IN DEFIANCE OF A STATUTE
OF A STATE BUT UNDER ITS AUTHORITY. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE MURPHY CONCURS,
DISSENTING: 

MY DISAGREEMENT WITH THE MAJORITY OF THE COURT IS ON A NARROW GROUND. 
I AGREE THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
SHOULD NOT BE DISTORTED TO MAKE THE FEDERAL COURTS THE SUPERVISOR OF
THE STATE ELECTIONS.  THAT WOULD PLACE THE FEDERAL JUDICIARY IN A
POSITION "TO SUPERVISE AND REVIEW THE POLITICAL ADMINISTRATION OF A
STATE GOVERNMENT BY ITS OWN OFFICIALS AND THROUGH ITS OWN COURTS"
(WILSON V. NORTH CAROLINA, 169 U.S. 586, 596) - MATTERS ON WHICH EACH
STATE HAS THE FINAL SAY.  I ALSO AGREE THAT A CANDIDATE FOR PUBLIC
OFFICE IS NOT DENIED THE EQUAL PROTECTION OF THE LAW IN THE
CONSTITUTIONAL SENSE MERELY BECAUSE HE IS THE VICTIM OF UNLAWFUL
ADMINISTRATION OF A STATE ELECTION LAW.  I BELIEVE, AS THE OPINION OF
THE COURT INDICATES, THAT A DENIAL OF EQUAL PROTECTION OF THE LAWS
REQUIRES AN INVIDIOUS, PURPOSEFUL DISCRIMINATION.  BUT I DEPART FROM
THE MAJORITY WHEN IT DENIES SNOWDEN THE OPPORTUNITY OF SHOWING THAT HE
WAS IN FACT THE VICTIM OF SUCH DISCRIMINATORY ACTION.  HIS COMPLAINT
SEEMS TO ME TO BE ADEQUATE TO RAISE THE ISSUE.  HE CHARGES A CONSPIRACY
TO WILFULLY, MALICIOUSLY AND ARBITRARILY REFUSE TO DESIGNATE HIM AS ONE
OF THE NOMINEES OF THE REPUBLICAN PARTY, THAT SUCH ACTION WAS AN
"UNEQUAL" ADMINISTRATION OF THE ILLINOIS LAW AND A DENIAL TO HIM OF THE
EQUAL PROTECTION OF THE LAWS, AND THAT THE CONSPIRACY HAD THAT
PURPOSE.  WHILE THE COMPLAINT COULD HAVE DRAWN THE ISSUE MORE SHARPLY,
I THINK IT DEFINES IT SUFFICIENTLY TO SURVIVE THE MOTION TO DISMISS. 

NO DOUBT UNCONSTITUTIONAL DISCRIMINATIONS AGAINST A CLASS, SUCH AS
THOSE WHICH WE HAVE RECENTLY CONDEMNED IN LANE V. WILSON, 307 U.S. 268,
AND SKINNER V. OKLAHOMA, 316 U.S. 535, MAY BE MORE READILY ESTABLISHED
THAN A DISCRIMINATION AGAINST AN INDIVIDUAL PER SE.  BUT THOUGH THE
PROOF IS EXACTING, THE LATTER MAY BE SHOWN AS IN COCHRAN V. KANSAS, 316
U.S. 255, WHERE A PRISONER WAS PREVENTED FROM PERFECTING AN APPEAL. 
THE CRITERIA ARE THE SAME WHETHER ONE HAS BEEN DENIED THE OPPORTUNITY
TO BE A CANDIDATE FOR PUBLIC OFFICE, TO ENTER PRIVATE BUSINESS, OR TO
HAVE THE PROTECTION OF THE COURTS.  IF THE LAW IS "APPLIED AND
ADMINISTERED BY PUBLIC AUTHORITY WITH AN EVIL EYE AND AN UNEQUAL HAND,
SO AS PRACTICALLY TO MAKE UNJUST AND ILLEGAL DISCRIMINATIONS BETWEEN
PERSONS IN SIMILAR CIRCUMSTANCES" (YICK WO V. HOPKINS, 118 U.S. 356,
373-374), IT IS THE SAME AS IF THE INVIDIOUS DISCRIMINATION WERE
INCORPORATED IN THE LAW ITSELF.  IF THE ACTION OF THE ILLINOIS BOARD IN
EFFECT WERE THE SAME AS AN ILLINOIS LAW THAT SNOWDEN COULD NOT RUN FOR
OFFICE, IT WOULD RUN AFOUL OF THE EQUAL PROTECTION CLAUSE WHETHER THAT
DISCRIMINATION WERE BASED ON THE FACT THAT SNOWDEN WAS A NEGRO,
CATHOLIC, PRESBYTERIAN, FREE MASON, OR HAD SOME OTHER CHARACTERISTIC OR
BELIEF WHICH THE AUTHORITIES DID NOT LIKE.  SNOWDEN SHOULD BE ALLOWED
THE OPPORTUNITY TO MAKE THAT SHOWING NO MATTER HOW THIN HIS CHANCES OF
SUCCESS MAY SEEM. 
..END :










THOMSON V. UNITED STATES, 321 U.S. 19 


NO. 70.  ARGUED DECEMBER 7, 1943.  - DECIDED JANUARY 17, 1944.  -
REVERSED. 


1.  IN RESPECT OF OPERATIONS BY MOTOR VEHICLE IN A COORDINATED
RAILMOTOR FREIGHT SERVICE - THE MOTOR VEHICLES BEING OPERATED BY
CONTRACTORS UNDER ARRANGEMENTS DESCRIBED IN THE OPINION - ONLY THE
RAILROAD WAS A "COMMON CARRIER BY MOTOR VEHICLE" ENTITLED TO
"GRANDFATHER" RIGHTS UNDER SEC. 206(A) OF PART II OF THE INTERSTATE
COMMERCE ACT, SINCE IT ALONE HELD ITSELF OUT TO THE GENERAL PUBLIC TO
ENGAGE IN SUCH SERVICE.  P. 23. 

2.  THE COMMISSION'S SO-CALLED "CONTROL AND RESPONSIBILITY" TEST, SO
FAR AS IT LEADS TO A DIFFERENT RESULT, IS DISAPPROVED.  P. 26. 

THOMSON, TRUSTEE OF THE PROPERTY OF THE CHICAGO & NORTH WESTERN
RAILWAY CO., V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, DISMISSING
THE COMPLAINT IN A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION, 31 M.C.C. 299. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS DIRECT APPEAL FROM A STATUTORY THREE-JUDGE DISTRICT COURT
INVOLVES IMPORTANT PROBLEMS RELATING TO "GRANDFATHER" RIGHTS TO A
CERTIFICATE AS A COMMON CARRIER BY MOTOR VEHICLE IN A SINGLE
COORDINATED RAIL-MOTOR FREIGHT SERVICE.  THE FINAL DECREE OF THAT COURT
DISMISSED APPELLANT'S PETITION TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION, 31 M.C.C. 299.  THE COMMISSION'S ORDER HAD DENIED
TO THE CHICAGO AND NORTH WESTERN RAILWAY COMPANY, OF WHICH APPELLANT IS
TRUSTEE, A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY AS A COMMON
CARRIER BY MOTOR VEHICLE UNDER THE SO-CALLED "GRANDFATHER CLAUSE" OF
SEC. 206(A) OF PART II OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC.
306(A). 

THE ESSENTIAL FACTS ARE CLEAR.  THE CHICAGO AND NORTH WESTERN RAILWAY
COMPANY, HEREINAFTER REFERRED TO AS THE RAILROAD, HAS EXTENSIVE MILEAGE
IN NINE WESTERN STATES AND IS A LARGE CARRIER OF FREIGHT IN LESS THAN
CARLOAD LOTS.  PRIOR TO AND SINCE THE STATUTORY "GRANDFATHER" DATE OF
JUNE 1, 1935, IT HAS SUPPLEMENTED ITS RAIL FREIGHT SERVICE BY PROVIDING
MOTOR VEHICLE SERVICE BETWEEN VARIOUS FREIGHT STATIONS ON ITS RAIL
LINES.  THERE ARE TWENTY-THREE SUCH MOTOR VEHICLE ROUTES ON HIGHWAYS
PARALLEL WITH AND ROUGHLY ADJACENT TO THE RAILROAD'S LINES.  THE MOTOR
TRUCKS TRANSPORT LESS THAN CARLOAD LOTS OF FREIGHT IN COMPLETE
COORDINATION WITH THE RAIL SERVICE.  THE RAILROAD INSTITUTED THIS
ADDITIONAL METHOD OF TRANSPORTATION IN ORDER TO FURNISH AN IMPROVED AND
MORE CONVENIENT FREIGHT SERVICE TO THE PUBLIC IN CERTAIN AREAS OF LIGHT
TRAFFIC AND IN ORDER TO CURTAIL CAR MILEAGE AND WAY-FREIGHT SERVICE. 
MOTOR VEHICLE TRANSPORTATION, IN OTHER WORDS, IS MERELY A NEW METHOD OF
CARRYING ON PART OF ITS ALL-RAIL FREIGHT BUSINESS IN WHICH IT HAD BEEN
ENGAGED FOR MANY YEARS. 

THE RAILROAD HAS CONSISTENTLY HELD ITSELF OUT TO THE GENERAL PUBLIC
AND TO SHIPPERS AS BEING ENGAGED IN THIS COORDINATED RAIL-MOTOR FREIGHT
SERVICE.  IT SOLICITS ALL THE FREIGHT TRANSPORTED BY THE TRUCKS
OPERATING AS PART OF THIS UNIFIED SERVICE AND ITS BILLS OF LADING AND
TARIFFS ARE USED THROUGHOUT.  THE SHIPPER DOES NOT KNOW IN A SPECIFIC
INSTANCE WHETHER HIS FREIGHT WILL BE SHIPPED ENTIRELY BY RAIL OR PARTLY
BY MOTOR VEHICLE.  BUT HE IS INFORMED BY THE RAILROAD'S TARIFFS THAT
THE RAILROAD AT ITS OPTION MAY SUBSTITUTE MOTOR VEHICLE SERVICE FOR
RAIL SERVICE BETWEEN STATIONS ON ITS LINES AND THAT THE CHARGES IN SUCH
A CASE ARE THE SAME AS WOULD BE APPLICABLE FOR ALL-RAIL SERVICE. 

IN SO SUBSTITUTING MOTOR VEHICLE SERVICE, THE RAILROAD HAS NOT DEEMED
IT ADVISABLE TO PURCHASE OR LEASE MOTOR TRUCKS OR EMPLOY ITS OWN
PERSONNEL IN SUCH OPERATIONS.  INSTEAD IT HAS ENTERED INTO WRITTEN
CONTRACTS FOR THIS SERVICE WITH MOTOR VEHICLE OPERATORS WHO ALSO SERVE
CUSTOMERS OTHER THAN THE RAILROAD.  BUT THE RAILROAD AT ALL TIMES
MAINTAINS DIRECT AND COMPLETE CONTROL OF THE MOVEMENT AND HANDLING OF
ITS FREIGHT BY THESE OPERATORS.  IT FIXES THE TRUCK SCHEDULES SO AS TO
COORDINATE THEM WITH THE RAIL SCHEDULES AND DESIGNATES THE AMOUNT AND
PARTICULAR SHIPMENTS OF FREIGHT TO BE MOVED.  THE MOTOR VEHICLE
OPERATORS ISSUE NO BILLING OF ANY KIND AND SOLICIT NONE OF THE FREIGHT
TRANSPORTED FOR THE RAILROAD.  THEY HAVE NO CONTRACTUAL OR OTHER
RELATIONSHIPS WITH EITHER THE SHIPPERS OR THE RECEIVERS OF THE
FREIGHT.  THEIR TRUCKS ARE LOADED AT THE FREIGHT STATIONS BY RAILROAD
EMPLOYEES, SOMETIMES ASSISTED BY THE TRUCK DRIVERS.  AFTER A TRUCK IS
LOADED A MANIFEST IS ISSUED BY THE RAILROAD'S AGENT, WHICH IS SIGNED BY
THE TRUCK DRIVER; UPON DELIVERY OF THE FREIGHT TO THE OTHER RAILROAD
FREIGHT STATION THE MANIFEST IS SIGNED BY ANOTHER RAILROAD AGENT, THUS
RELEASING THE MOTOR VEHICLE OPERATOR. 

THE WRITTEN CONTRACTS DESCRIBE THE OPERATORS AS "INDEPENDENT
CONTRACTORS" AND STATE THAT "NOTHING HEREIN CONTAINED SHALL BE
CONSTRUED AS INCONSISTENT WITH THAT STATUS."  THE CONTRACTORS ARE BOUND
BY THESE CONTRACTS TO PROVIDE VEHICLES OF A TYPE SATISFACTORY TO THE
RAILROAD FOR THE PURPOSE OF TRANSPORTING FREIGHT BETWEEN CERTAIN
SPECIFIED FREIGHT STATIONS IN ACCORDANCE WITH SUCH SCHEDULES AND
INSTRUCTIONS AS SHALL BE GIVEN BY THE RAILROAD.  THE CONTRACTORS AGREE
TO TRANSPORT SUCH FREIGHT AS THE RAILROAD DESIGNATES IN A MANNER
SATISFACTORY TO THE RAILROAD.  ALL PERSONS OPERATING THE MOTOR VEHICLES
ARE UNDER THE EMPLOYMENT AND DIRECTION OF THE CONTRACTORS AND ARE NOT
CONSIDERED RAILROAD EMPLOYEES.  THE OPERATIONS ARE CONDUCTED UNDER THE
CONTRACTORS' OWN NAMES AND THE VEHICLES DO NOT DISPLAY THE RAILROAD'S
NAME.  THE CONTRACTORS FURTHER AGREE TO COMPLY WITH STATE, FEDERAL AND
MUNICIPAL LAWS AND TO INDEMNIFY THE RAILROAD AGAINST ANY FAILURE OR
DEFAULT IN THIS RESPECT.  THEY ALSO AGREE TO INDEMNIFY THE RAILROAD
AGAINST ALL LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE OPERATION OF
THE MOTOR VEHICLES.  THE RAILROAD IS AUTHORIZED TO MAINTAIN FOR ITS OWN
PROTECTION PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE ON ALL THE
VEHICLES AT THE CONTRACTORS' EXPENSE UP TO A SPECIFIED AMOUNT. 
FINALLY, THE CONTRACTS PROVIDE THAT IN THE EVENT THAT THE HIGHWAYS
BETWEEN ANY OF THE STATIONS BECOME IMPASSABLE THE CONTRACTORS SHALL
IMMEDIATELY NOTIFY THE RAILROAD SO THAT IT CAN ARRANGE AND SUBSTITUTE
OTHER SERVICE IF IT DESIRES. 

WITH RESPECT TO THESE OPERATIONS, THE COMMISSION FOUND THAT THE
RAILROAD DID NOT OPERATE MOTOR VEHICLES "EITHER AS OWNER OR UNDER LEASE
OR ANY OTHER EQUIVALENT ARRANGEMENT."  THE CONTRACT PROVISIONS WERE
FOUND TO "ESTABLISH THAT THE MOTOR VEHICLES ARE TO BE SUPPLIED BY THE
CONTRACTORS AND OPERATED UNDER THEIR DIRECTION AND CONTROL AND UNDER
THEIR RESPONSIBILITY TO THE GENERAL PUBLIC AS WELL AS TO THE SHIPPERS. 
IT IS CLEAR, THEREFORE, THAT THE MOTOR-VEHICLE OPERATIONS HAVE BEEN AND
ARE THOSE OF OTHERS AS COMMON CARRIERS BY MOTOR VEHICLE IN THEIR OWN
RIGHT AND NOT THOSE OF APPLICANT."  THE COMMISSION ACCORDINGLY DENIED
THE RAILROAD'S "GRANDFATHER" APPLICATION.  THE DISTRICT COURT DISMISSED
WITHOUT OPINION THE RAILROAD'S SUIT TO SET ASIDE AND ENJOIN THE
COMMISSION'S ORDER, AFTER FINDING THAT THE ORDER WAS LAWFUL AND WAS
SUPPORTED BY SUBSTANTIAL EVIDENCE. 

IN LIGHT OF THESE UNDISPUTED FACTS, HOWEVER, WE HOLD THAT THE
COMMISSION ERRED IN FINDING THAT THE RAILROAD WAS NOT ENTITLED TO A
CERTIFICATE AS A COMMON CARRIER BY MOTOR VEHICLE.  THIS ERROR ARISES
NOT FROM A LACK OF SUBSTANTIAL EVIDENCE TO SUPPORT ITS CONCLUSION OR
FROM AN IMPROPER EXERCISE OF ITS DISCRETION.  RATHER IT IS DUE TO AN
INCORRECT APPLICATION TO THESE FACTS OF THE STATUTORY PROVISIONS AND
CONGRESSIONAL INTENTION RELATING TO "GRANDFATHER" RIGHTS OF COMMON
CARRIERS BY MOTOR VEHICLE. 

UNDER THE "GRANDFATHER" CLAUSE OF SEC. 206(A) OF PART II OF THE
INTERSTATE COMMERCE ACT, A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY CAN BE AWARDED ONLY TO ONE WHO IS A "COMMON CARRIER BY MOTOR
VEHICLE" WITHIN THE MEANING OF THE ACT.  ORIGINALLY THE TERM "COMMON
CARRIER BY MOTOR VEHICLE" WAS DEFINED TO INCLUDE ANY PERSON WHO
UNDERTAKES, "WHETHER DIRECTLY OR BY A LEASE OR ANY OTHER ARRANGEMENT,"
TO TRANSPORT PASSENGERS OR PROPERTY FOR THE GENERAL PUBLIC BY MOTOR
VEHICLE.  FN1  FOR PURPOSES OF CLARITY, HOWEVER, THIS LANGUAGE WAS
STRICKEN AND THE TERM WAS REDEFINED BY CONGRESS IN 1940 TO INCLUDE ANY
PERSON "WHICH HOLDS ITSELF OUT TO THE GENERAL PUBLIC TO ENGAGE IN THE
TRANSPORTATION BY MOTOR VEHICLE" OF PASSENGERS OR PROPERTY.  FN2 

IN ADDITION, AS WE POINTED OUT IN UNITED STATES V. ROSENBLUM TRUCK
LINES, 315 U.S. 50, 53, 54, "WE THINK IT CLEAR THAT CONGRESS DID NOT
INTEND TO GRANT MULTIPLE 'GRANDFATHER' RIGHTS ON THE BASIS OF A SINGLE
TRANSPORTATION SERVICE."  THUS WHERE A PERSON HOLDS HIMSELF OUT TO THE
GENERAL PUBLIC TO ENGAGE IN A SINGLE TRANSPORTATION SERVICE, CONSISTING
ENTIRELY OR PARTLY OF MOTOR VEHICLE OPERATIONS, HE IS A "COMMON CARRIER
BY MOTOR VEHICLE" WITHIN THE CONTEMPLATION OF THE STATUTE.  AND
CONGRESS INTENDED THAT HE ALONE SHOULD RECEIVE "GRANDFATHER" RIGHTS ON
THE BASIS OF THAT SINGLE SERVICE UNDER SEC. 206(A) OF THE ACT. 

THE UNDISPUTED FACTS HERE DISCLOSE THAT ONLY THE RAILROAD HOLDS
ITSELF OUT TO THE GENERAL PUBLIC TO ENGAGE IN A SINGLE COMPLETE FREIGHT
TRANSPORTATION SERVICE TO AND FROM ALL POINTS ON ITS LINES.  AS AN
INTEGRAL AND ESSENTIAL PART OF THIS SERVICE TENDERED BY THE RAILROAD,
MOTOR VEHICLE TRANSPORTATION BETWEEN CERTAIN STATIONS IS PROVIDED.  IT
IS COMPLETELY SYNCHRONIZED WITH THE RAIL SERVICE AND HAS NONE OF THE
ELEMENTS OF AN INDEPENDENT SERVICE OFFERED ON BEHALF OF THE MOTOR
VEHICLE OPERATORS.  THEIR OPERATIONS ARE THE OPERATIONS OFFERED BY THE
RAILROAD AS COMPONENT PARTS, NOT AS SEPARATE OR DISTINCT SEGMENTS, OF
ITS SINGLE SERVICE.  THEY MAY BE REPLACED OR ELIMINATED AT THE SOLE
DISCRETION OF THE RAILROAD. 

THE RAILROAD, FURTHERMORE, IS ACTIVELY ENGAGED IN PROVIDING THIS
SINGLE COORDINATED SERVICE.  AS TO THE MOTOR VEHICLE OPERATIONS
SUPPLEMENTING ITS RAIL SERVICE, IT IS NOT A MERE FREIGHT BROKER OR
FORWARDER.  CF. ACME FAST FREIGHT V. UNITED STATES, 30 F.SUPP.  968,
AFFIRMED 309 U.S. 638; O'MALLEY V. UNITED STATES, 38 F.SUPP.  1; MOORE
V. UNITED STATES, 41 F.SUPP.  786, AFFIRMED 316 U.S. 642.  NOR CAN IT
BE DESCRIBED AS THE CONSIGNOR OR CONSIGNEE OF THE FREIGHT SO
TRANSPORTED BY MOTOR VEHICLE.  CF. LEHIGH VALLEY R. CO. V. UNITED
STATES, 243 U.S. 444.  THE PROVISIONS AND ACTUAL OPERATION OF THE
CONTRACTS WITH THE OPERATORS DEMONSTRATE THE RAILROAD'S RIGID CONTROL
OVER THE MOVEMENT OF THE FREIGHT AND ITS RETENTION OF FULL
RESPONSIBILITY TO THE SHIPPERS.  THE OPERATORS ARE "INDEPENDENT" ONLY
BY GRACE OF CONTRACT NOMENCLATURE.  BY ANY REALISTIC TEST THEY ARE MERE
AIDS IN CARRYING OUT A PART OF THE RAILROAD'S COORDINATED RAIL-MOTOR
FREIGHT SERVICE. 

THUS THE RAILROAD CLEARLY IS UNDERTAKING TO TRANSPORT FREIGHT BY AN
"OTHER ARRANGEMENT," AS THOSE WORDS ARE USED IN THE ORIGINAL STATUTORY
DEFINITION OF "COMMON CARRIER BY MOTOR VEHICLE."  CF. CHAIRMAN
EASTMAN'S CONCURRING OPINION IN MISSOURI PACIFIC R. CO. COMMON CARRIER
APPLICATION, 22 M.C.C. 321, 333.  EVEN MORE CLEARLY, UNDER THE AMENDED
DEFINITION, THE RAILROAD IS HOLDING ITSELF OUT TO THE GENERAL PUBLIC TO
ENGAGE IN THE TRANSPORTATION OF FREIGHT BY MOTOR VEHICLE AS PART OF ITS
COORDINATED RAIL-MOTOR FREIGHT SERVICE.  IN SHORT, IT IS A COMMON
CARRIER BY MOTOR VEHICLE WITHIN THE MEANING OF THE ACT.  AND THE
APPLICATION OF THE CONGRESSIONAL INTENTION NOT TO GRANT MULTIPLE
"GRANDFATHER" RIGHTS IN SUCH A SITUATION BECOMES CLEAR.  THE RAILROAD
ALONE IS ENTITLED TO COMMON CARRIER "GRANDFATHER" RIGHTS AS TO THE
MOTOR VEHICLE SERVICE FORMING AN INTEGRAL PART OF ITS UNIFIED FREIGHT
SERVICE.  ANY OTHER CONCLUSION WOULD AUTHORIZE THE WHOLESALE GRANTING
OF TWENTY-THREE "GRANDFATHER" PERMITS TO THE VARIOUS MOTOR VEHICLE
OPERATORS ON THE BASIS OF THIS SINGLE TRANSPORTATION SERVICE OFFERED BY
THE RAILROAD - A RESULT WHICH ASCRIBES TO CONGRESS "AN INTENT
INCOMPATIBLE WITH ITS PURPOSE OF REGULATION."  UNITED STATES V.
ROSENBLUM TRUCK LINES, SUPRA, 54.  WE NEED NOT DECIDE WHETHER THESE
OPERATORS ARE ENTITLED TO "GRANDFATHER" PERMITS AS TO OTHER FREIGHT
TRANSPORTED OVER THEIR ROUTES.  BUT ONLY THE RAILROAD ACQUIRED
"GRANDFATHER" RIGHTS AS TO THE FREIGHT WHICH THEY TRANSPORT AS AN
INTEGRAL PART OF THE RAILROAD'S COORDINATED RAIL-MOTOR SERVICE. 

THE COMMISSION HAS TAKEN THE VIEW THAT ONLY ONE CERTIFICATE CAN BE
GRANTED ON THE BASIS OF A SINGLE TRANSPORTATION SERVICE AND THAT THE
"COMMON CARRIER BY MOTOR VEHICLE" ENTITLED TO THE CERTIFICATE IS THE
ONE WHO EXERCISES DIRECTION AND CONTROL OF THE MOTOR VEHICLE OPERATIONS
AND ASSUMES FULL RESPONSIBILITY THEREFOR BOTH TO SHIPPERS AND THE
GENERAL PUBLIC.  THIS SO-CALLED "CONTROL AND RESPONSIBILITY" TEST,
HOWEVER, IS APPLICABLE IN THIS CASE ONLY INSOFAR AS IT AIDS IN
DETERMINING THE PERSON OFFERING AND ENGAGING IN THE SINGLE COORDINATED
RAIL-MOTOR FREIGHT SERVICE.  TO THE EXTENT THAT IT LEADS TO A RESULT
DIFFERENT FROM THAT REACHED BY THE APPLICATION OF THE STATUTORY
PROVISIONS AND THE CONGRESSIONAL INTENT WHICH WE HAVE INDICATED, IT
MUST BE DISAPPROVED. 

THE JUDGMENT OF THE COURT BELOW IS REVERSED.  THE CASE IS REMANDED TO
THAT COURT WITH DIRECTIONS TO REMAND IT TO THE COMMISSION FOR SUCH
FURTHER PROCEEDINGS, CONSISTENT WITH THIS OPINION, AS MAY BE
APPROPRIATE.  REVERSED. 

FN1  SEC. 203(A)(14) OF THE MOTOR CARRIER ACT OF 1935, 49 STAT. 543,
544. 

FN2  SEC. 203(A)(14) AS AMENDED BY THE TRANSPORTATION ACT OF 1940, 54
STAT. 898, 920.  NO CHANGE IN THE LEGISLATIVE INTENT WITH RESPECT TO
THE DEFINITION OF COMMON CARRIERS BY MOTOR VEHICLE OF THE TYPE INVOLVED
IN THIS CASE WAS EVIDENCED BY THIS AMENDMENT.  SEE 86 CONG. REC.
11546. 

MR. JUSTICE JACKSON IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING:    ONE WHO ARRANGES FOR ANOTHER TO DO SOME HAULING FOR HIM
MAY OR MAY NOT ENTER THE HAULING BUSINESS.  THE QUESTION WHETHER THE
ONE OR THE OTHER IS THE ENTREPRENEUR HAS OCCUPIED THE COURTS FROM AN
EARLY DAY.  HOLMES, AGENCY (1891), 5 HARV. L. REV. 1, 15-16.  THE
COMMISSION HAS DRAWN UPON THAT BODY OF LAW CONCERNING INDEPENDENT
CONTRACTORS FOR THE PURPOSE OF DETERMINING WHETHER IN CASE OF LINE-HAUL
TRANSPORTATION THE CARRIER DEALING DIRECTLY WITH THE SHIPPER OR THE ONE
PERFORMING THE ACTUAL MOTOR TRANSPORTATION WAS THE COMMON CARRIER
ENTITLED TO GRANDFATHER RIGHTS UNDER THE ACT.  THAT IS TO SAY IT HAS
HELD, AND CONSISTENTLY SO, THAT THE CARRIER WHICH EXERCISED DIRECTION
AND CONTROL OF THE ACTUAL MOTORVEHICLE OPERATIONS AND ASSUMED
RESPONSIBILITY THEREFOR TO SHIPPERS AND TO THE GENERAL PUBLIC WAS THE
ONE WHO WAS IN "OPERATION" DURING THE SPECIFIED PERIOD AS A "COMMON
CARRIER BY MOTOR VEHICLE" WITHIN THE MEANING OF THE GRANDFATHER
CLAUSE.  SEC. 206(A).  THAT TEST HAS BEEN APPLIED WHETHER THE CARRIER
DEALING DIRECTLY WITH THE SHIPPERS WAS A COMMON CARRIER BY MOTOR
VEHICLE (DIXIE OHIO EXPRESS CO., 17 M.C.C. 735, 738-741; J. T.
O'MALLEY, 23 M.C.C. 276, 279) OR A COMMON CARRIER BY RAIL.  WILLETT
COMPANY OF INDIANA, INC., 21 M.C.C. 405, 408; MISSOURI PACIFIC R. CO.,
22 M.C.C. 321, 326-327.  IT HAS BEEN APPLIED AFTER AS WELL AS BEFORE
THE 1940 AMENDMENT.  FN1  BOSTON & MAINE TRANSPORTATION CO., 30 M.C.C.
697, 704-705.  AND IN APPLYING THE TEST TO RAILROAD APPLICANTS IT HAS
PLACED THEM ON A PARITY WITH MOTOR VEHICLE APPLICANTS.  BOSTON & MAINE
TRANSPORTATION CO., SUPRA.  AND SEE CROOKS TERMINAL WAREHOUSE, 34
M.C.C. 679.  THERE HAVE BEEN DISAGREEMENTS WITHIN THE COMMISSION
WHETHER PARTICULAR APPLICANTS SATISFY THE TEST.  MISSOURI PACIFIC R.
CO., SUPRA; BOSTON & MAINE TRANSPORTATION CO., SUPRA.  BUT THERE HAS
BEEN NO DISAGREEMENT OVER THE PROPRIETY OF THE CONTROL AND
RESPONSIBILITY TEST ITSELF. 

THE CONTROL AND RESPONSIBILITY TEST PROVIDES A FAIR MEASURE OF THE
GRANDFATHER RIGHTS.  HE WHO SHOWS THAT HE HAS BEEN AND IS AN
INDEPENDENT CONTRACTOR HAS ESTABLISHED HIS CLAIM TO THE TRANSPORTATION
BUSINESS AS CLEARLY AS ANY CONNECTING CARRIER.  THE FACT THAT THE
TRANSPORTATION SERVICE OFFERED IS CLOSELY INTEGRATED AND HELD OUT TO
THE PUBLIC AS SUCH DOES NOT MEAN THAT SEGMENTS OF THE LINE-HAUL
OPERATION MAY NOT COMPRISE SEPARATE ENTERPRISES.  TO ATTACH GRANDFATHER
RIGHTS TO THE SEPARATE SEGMENTS IS NOT TO GRANT MULTIPLE RIGHTS.  IT IS
TO ALLOW THOSE RIGHTS TO FOLLOW OWNERSHIP OF THE ENTERPRISE.  I SEE NO
OTHER WAY TO EFFECTUATE THE CONGRESSIONAL POLICY OF PRESERVING THROUGH
THE GRANDFATHER CLAUSE THE POSITION WHICH MOTOR VEHICLE OPERATORS
"STRUGGLED TO OBTAIN IN OUR NATIONAL TRANSPORTATION SYSTEM."  UNITED
STATES V. CAROLINA FREIGHT CARRIERS CORP., 315 U.S. 475, 488.  TO
CONCLUDE THAT THE PRESENT ARRANGEMENT IS A MERE AGENCY IS TO DISAGREE
WITH THE COMMISSION IN ITS APPLICATION OF THE CONTROL AND
RESPONSIBILITY TEST.  TO REST GRANDFATHER RIGHTS ON THE INTEGRATED
RAILMOTOR SERVICE WHICH APPELLANT OFFERS THE PUBLIC IS TO GRANT IT
RIGHTS BASED ON ANOTHER MAN'S BUSINESS.  TO GRANT APPELLANT THESE
GRANDFATHER RIGHTS ON THE BASIS OF A HOLDING OUT IS TO GIVE TO THE 1940
AMENDMENT AN EFFECT WHICH CONGRESS CONCEDEDLY DID NOT INTEND.  FN2  I
DO NOT BELIEVE THAT CONGRESS INTENDED TO PUT APPLICANTS SUCH AS
APPELLANT IN A PREFERRED POSITION. 

SINCE THERE IS CONCEDEDLY SUFFICIENT EVIDENCE TO SUPPORT THE FINDINGS
OF THE COMMISSION ON THE CONTROL AND RESPONSIBILITY TEST, I WOULD
AFFIRM THE JUDGMENT BELOW. 

FN1  SEE NOTE 2, INFRA. 

FN2  PRIOR TO 1940 THE ACT DEFINED "COMMON CARRIER BY MOTOR VEHICLE"
AS ONE WHO "UNDERTAKES, WHETHER DIRECTLY OR BY A LEASE OR ANY OTHER
ARRANGEMENT, TO TRANSPORT PASSENGERS OR PROPERTY," ETC. SEC.
203(A)(14).  THE TRANSPORTATION ACT OF 1940 AMENDED THAT DEFINITION. 
IT PROVIDED, SO FAR AS MATERIAL HERE, THAT A "COMMON CARRIER BY MOTOR
VEHICLE" WAS "ANY PERSON WHICH HOLDS ITSELF OUT TO THE GENERAL PUBLIC
TO ENGAGE IN THE TRANSPORTATION BY MOTOR VEHICLE IN INTERSTATE OR
FOREIGN COMMERCE OF PASSENGERS OR PROPERTY."  AS THE OPINION OF THE
COURT STATES, THAT AMENDMENT MADE NO CHANGE AS RESPECTS COMMON CARRIERS
OF THE TYPE INVOLVED IN THIS CASE.  IT HAD THE "SOLE PURPOSE OF
ELIMINATING CARRIERS PERFORMING PICK-UP, DELIVERY, AND TRANSFER
SERVICE."  86 CONG. REC. 11546.  AND SEE BOSTON & MAINE TRANSPORTATION
CO., SUPRA, 703-705.  THE GRANDFATHER CLAUSE CONTAINED IN SEC. 206(A)
PROVIDES FOR THE ISSUANCE OF A CERTIFICATE WITHOUT PROOF OF PUBLIC
CONVENIENCE AND NECESSITY, IF THE CARRIER "WAS IN BONA FIDE OPERATION
AS A COMMON CARRIER BY MOTOR VEHICLE ON JUNE 1, 1935, OVER THE ROUTE OR
ROUTES OR WITHIN THE TERRITORY FOR WHICH APPLICATION IS MADE AND HAS SO
OPERATED SINCE THAT TIME." 

THUS AFTER AS WELL AS BEFORE THE 1940 AMENDMENT THE BASIC QUESTION IN
THIS TYPE OF CASE WAS WHETHER THE CONNECTING CARRIER WAS IN "BONA FIDE
OPERATION" AS SUCH A CARRIER.  IF IT WAS AN INDEPENDENT CONTRACTOR IT
WAS ENGAGED IN SUCH "OPERATION"; IF IT WAS PERFORMING A TRANSPORTATION
SERVICE AS A MERE AGENT FOR THE CARRIER WITH WHOM THE SHIPPER DEALT, IT
WAS NOT.  BOSTON & MAINE TRANSPORTATION CO., SUPRA.
..END :














TENNANT V. PEORIA & P.U. RY. CO., 321 U.S. 29 


NO. 94.  ARGUED DECEMBER 15, 1943.  - DECIDED JANUARY 17, 1944.  - 134
F.2D 860, REVERSED. 


1.  IN THIS SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT TO RECOVER
FOR THE DEATH OF AN EMPLOYEE, THERE WAS EVIDENCE FROM WHICH THE JURY
COULD REASONABLY INFER THAT FAILURE TO RING THE BELL BEFORE STARTING
THE LOCOMOTIVE WAS NEGLIGENCE OF THE DEFENDANT AND THAT THAT NEGLIGENCE
WAS THE PROXIMATE CAUSE OF THE DEATH; AND A JUDGMENT FOR THE DEFENDANT
NOTWITHSTANDING A VERDICT FOR THE PLAINTIFF DEPRIVED THE LATTER OF THE
RIGHT TO TRIAL BY JURY.  P. 33. 

2.  A COURT IS NOT FREE TO REWEIGH THE EVIDENCE AND SET ASIDE THE
JURY VERDICT MERELY BECAUSE THE JURY COULD HAVE DRAWN DIFFERENT
INFERENCES OR CONCLUSIONS, OR BECAUSE THE COURT REGARDS ANOTHER RESULT
AS MORE REASONABLE.  P. 35. 

TENNANT, ADMINISTRATRIX, V. PEORIA & PEKIN UNION RAILWAY CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 320 U.S. 721, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PLAINTIFF IN AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS INSTITUTED BY PETITIONER, WHO IS THE ADMINISTRATRIX
OF THE ESTATE AND THE WIDOW OF THE DECEASED HAROLD C. TENNANT, UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT.  FN1  RECOVERY WAS SOUGHT FOR THE
ALLEGED WRONGFUL DEATH OF TENNANT DURING THE COURSE OF HIS EMPLOYMENT
AS A MEMBER OF A SWITCHING CREW IN ONE OF RESPONDENT'S RAILROAD
SWITCHING YARDS.  THE CASE WAS SUBMITTED TO A JURY, WHICH RETURNED A
VERDICT IN FAVOR OF PETITIONER AND AWARDED HER DAMAGES OF $26,250.  THE
DISTRICT COURT ENTERED JUDGMENT ACCORDINGLY.  ON APPEAL BY RESPONDENT,
THE COURT BELOW REVERSED THIS JUDGMENT AFTER FINDING THAT, WHILE THERE
WAS EVIDENCE OF NEGLIGENCE BY RESPONDENT, THERE WAS NO SUBSTANTIAL
PROOF THAT THIS NEGLIGENCE WAS THE PROXIMATE CAUSE OF TENNANT'S DEATH. 
134 F.2D 860.  IT HELD THAT THE DISTRICT COURT SHOULD HAVE DIRECTED A
VERDICT IN FAVOR OF RESPONDENT OR ALLOWED ITS MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT.  WE GRANTED CERTIORARI BECAUSE OF
IMPORTANT PROBLEMS AS TO PETITIONER'S RIGHT TO A JURY DETERMINATION OF
THE ISSUE OF CAUSATION. 

TENNANT WAS EMPLOYED AS A SWITCHMAN IN THE "B" YARD OF RESPONDENT'S
SWITCHING YARDS IN EAST PEORIA, ILLINOIS.  HE HAD WORKED THERE FOR
SEVERAL YEARS AND HAD BEEN ATTACHED TO THE PARTICULAR FIVE-MAN
SWITCHING CREW FOR SEVERAL MONTHS PRIOR TO THE FATAL ACCIDENT.  ON THE
NIGHT OF JULY 12, 1940, THIS CREW WAS ENGAGED IN ONE OF ITS NIGHTLY
TASKS OF COUPLING FREIGHT CARS AND REMOVING THEM FROM TRACK B-28.  THE
ELECTRIC DIESEL ENGINE USED BY THE CREW WAS BROUGHT DOWN FROM THE NORTH
THROUGH DIVIDE SWITCH B-28 AND ONTO TRACK B-28, WHICH EXTENDED STRAIGHT
NORTH AND SOUTH.  THE FRONT OR PILOT END OF THE ENGINE WAS HEADED
SOUTH.  THERE WERE ABOUT TWENTY CARS IN VARIOUS GROUPS ON TRACK B-28 AT
THAT TIME; THEY WERE TO BE COUPLED TOGETHER AND MOVED NORTHWARD OUT OF
TRACK B-28 TO OTHER LOCATIONS. 

IN THE COURSE OF THESE COUPLING OPERATIONS, THE ENGINE STOPPED AND
STARTED SIX OR EIGHT TIMES, GRADUALLY MOVING SOUTHWARD.  AFTER ALL
TWENTY CARS HAD BEEN COUPLED, THE ENGINE REMAINED STATIONARY FOR FIVE
OR TEN MINUTES BEFORE THE ENGINEER RECEIVED THE BACK-UP SIGNAL FROM
HARKLESS, THE FOREMAN.  THE ENGINEER TESTIFIED THAT THE ENGINE AT THIS
POINT WAS STANDING ABOUT FIVE OR SIX CAR LENGTHS SOUTH OF SWITCH B-28,
A CAR LENGTH APPROXIMATING FORTY FEET.  THERE WAS OTHER TESTIMONY,
HOWEVER, INDICATING THAT THE ENGINE WAS SEVEN OR EIGHT CAR LENGTHS
SOUTH OF THE SWITCH.  WHILE THUS WAITING FOR THE BACK-UP SIGNAL, THE
ENGINEER SAW TENNANT ON THE WEST SIDE OF THE ENGINE PLACING HIS
RAINCOAT IN A CLOTHES COMPARTMENT BENEATH THE CAB WINDOW.  AFTER
PUTTING ON A CAP AND JACKET HE WALKED AROUND THE NORTH OR REAR END OF
THE ENGINE AND WAS NEVER SEEN ALIVE AFTER THAT. 

THERE WAS NO DIRECT EVIDENCE AS TO TENNANT'S PRECISE LOCATION AT THE
MOMENT HE WAS KILLED.  THERE WAS SOME EVIDENCE TO INDICATE THAT HE
NEVER WALKED BACK ON EITHER SIDE OF THE ENGINE.  IT WAS HIS DUTY AS A
SWITCHMAN OR PIN-PULLER TO STAY AHEAD OF THE ENGINE AS IT MOVED BACK
OUT OF TRACK B-28, PROTECT IT FROM OTHER TRAIN MOVEMENTS, AND ATTEND TO
THE SWITCHES. 

THE ENGINE THEN PULLED THE TWENTY CARS OUT OF TRACK B-28.  THE FACT
THAT TENNANT WAS MISSING WAS FIRST NOTICED WHEN THE ENGINE REACHED A
POINT SOME DISTANCE NORTH OF SWITCH B-28.  AN INVESTIGATION REVEALED
BLOOD MARKS ON THE WEST RAIL OF TRACK B-28 SOME 315 FEET, OR ABOUT
SEVEN OR EIGHT CAR LENGTHS, SOUTH OF SWITCH B-28.  THERE WAS A POOL OF
BLOOD A FOOT AND A HALF NORTH OF THOSE MARKS; NEAR BY, BETWEEN THE
RAILS, WERE TENNANT'S RIGHT HAND, HIS CAP AND HIS LIGHTED LANTERN.  HIS
BODY WAS FOUND AT SWITCH B-28, WHILE HIS HEAD WAS DISCOVERED ABOUT
FOURTEEN CAR LENGTHS NORTH AND WEST OF THAT SWITCH.  AN EXAMINATION OF
THE ENGINE AND CARS DISCLOSED ONLY A TINY BIT OF FLESH ON THE OUTSIDE
RIM OF THE NORTH WHEEL OF THE THIRD CAR FROM THE ENGINE.  THERE WAS NO
EVIDENCE OF HIS HAVING SLIPPED OR FALLEN FROM ANY PART OF THE ENGINE OR
CARS. 

THE CASE WAS SUBMITTED TO THE JURY ON THE ALLEGATION THAT TENNANT'S
DEATH RESULTED FROM RESPONDENT'S NEGLIGENCE, IN THAT ITS ENGINEER
BACKED THE ENGINE AND CARS NORTHWARD OUT OF TRACK B-28 WITHOUT FIRST
RINGING THE ENGINE BELL.  THE FAILURE TO RING THE BELL, WHICH WAS NOT
DISPUTED, WAS ALLEGED TO BE IN VIOLATION OF RULE 30 OF RESPONDENT'S
RULES FOR ITS EMPLOYEES.  THIS RULE PROVIDES THAT "THE ENGINE BELL MUST
BE RUNG WHEN AN ENGINE IS ABOUT TO MOVE AND WHILE APPROACHING AND
PASSING PUBLIC CROSSINGS AT GRADES, AND TO PREVENT ACCIDENTS."  THERE
WAS CONFLICTING EVIDENCE AS TO WHETHER THIS RULE WAS FOR THE BENEFIT OF
CREW MEMBERS WHO PRESUMABLY WERE AWARE OF SWITCHING OPERATIONS AND AS
TO WHETHER IT WAS A CUSTOMARY PRACTICE FOR THE BELL TO BE RUNG UNDER
SUCH CIRCUMSTANCES.  IN ADDITION, RESPONDENT PLACED GREAT RELIANCE ON
THE PROVISION OF RULE 32 THAT "THE UNNECESSARY USE OF EITHER THE
WHISTLE OR THE BELL IS PROHIBITED."  THIS WAS SAID TO DEMONSTRATE THAT
THE BELL SHOULD NOT HAVE BEEN RUNG ON THIS OCCASION. 

IN ORDER TO RECOVER UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, IT
WAS INCUMBENT UPON PETITIONER TO PROVE THAT RESPONDENT WAS NEGLIGENT
AND THAT SUCH NEGLIGENCE WAS THE PROXIMATE CAUSE IN WHOLE OR IN PART OF
THE FATAL ACCIDENT.  TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54,
67.  PETITIONER WAS REQUIRED TO PRESENT PROBATIVE FACTS FROM WHICH THE
NEGLIGENCE AND THE CAUSAL RELATION COULD REASONABLY BE INFERRED.  "THE
ESSENTIAL REQUIREMENT IS THAT MERE SPECULATION BE NOT ALLOWED TO DO
DUTY FOR PROBATIVE FACTS, AFTER MAKING DUE ALLOWANCE FOR ALL REASONABLY
POSSIBLE INFERENCES FAVORING THE PARTY WHOSE CASE IS ATTACKED." 
GALLOWAY V. UNITED STATES, 319 U.S. 372, 395; ATCHISON, T. & S.F. RY.
CO. V. TOOPS, 281 U.S. 351.  IF THAT REQUIREMENT IS MET, AS WE BELIEVE
IT WAS IN THIS CASE, THE ISSUES MAY PROPERLY BE PRESENTED TO THE JURY. 
NO COURT IS THEN JUSTIFIED IN SUBSTITUTING ITS CONCLUSIONS FOR THOSE OF
THE TWELVE JURORS. 

AS TO THE PROOF OF NEGLIGENCE, THE COURT BELOW CORRECTLY HELD THAT IT
WAS SUFFICIENT TO PRESENT A JURY QUESTION.  IN VIEW OF RESPONDENT'S OWN
RULE THAT A BELL MUST BE RUNG "WHEN AN ENGINE IS ABOUT TO MOVE," IT WAS
NOT UNREASONABLE FOR THE JURY TO CONCLUDE THAT THE FAILURE TO RING THE
BELL UNDER THESE CIRCUMSTANCES CONSTITUTED NEGLIGENCE.  THIS WAS NOT AN
OPERATION WHERE BELL RINGING MIGHT BE TERMED UNNECESSARY OR
INDISCRIMINATE AS A MATTER OF LAW.  CF. AERKFETZ V. HUMPHREYS, 145 U.S.
418, 420; TOLEDO, ST. L. & W.R. CO. V. ALLEN, 276 U.S. 165, 171.  THE
ENGINE HAD REMAINED STATIONARY FOR SEVERAL MINUTES, DURING WHICH THE
ENGINEER SAW TENNANT DISAPPEAR IN THE DIRECTION OF THE SUBSEQUENT
ENGINE MOVEMENT.  STILL NOT KNOWING THE PRECISE WHEREABOUTS OF TENNANT,
THE ENGINEER THEN CAUSED THE ENGINE AND CARS TO MAKE AN EXTENDED
BACKWARD MOVEMENT.  SUCH A MOVEMENT, WITHOUT A WARNING, WAS CLEARLY
DANGEROUS TO LIFE AND LIMB.  NEW YORK CENTRAL R. CO. V. MARCONE, 281
U.S. 345, 349.  THERE WAS AMPLE THOUGH CONFLICTING EVIDENCE THAT
RESPONDENT'S WRITTEN RULE, AS WELL AS THE PRACTICE AND CUSTOM, REQUIRED
THE RINGING OF THE ENGINE BELL IN JUST SUCH A SITUATION.  WE CANNOT
SAY, THEREFORE, THAT THE JURY'S CONCURRENCE IN THAT VIEW WAS
UNJUSTIFIED. 

THE COURT BELOW ERRED, HOWEVER, IN HOLDING THAT THERE WAS NOT
SUFFICIENT PROOF TO SUPPORT THE CHARGE THAT RESPONDENT'S NEGLIGENCE IN
FAILING TO RING THE BELL WAS THE PROXIMATE CAUSE OF TENNANT'S DEATH. 
THE ABSENCE OF EYE WITNESSES WAS NOT DECISIVE.  THERE WAS TESTIMONY
THAT HIS DUTIES INCLUDED STAYING NEAR THE NORTH OR REAR END OF THE
ENGINE AS IT MADE ITS BACKWARD MOVEMENT OUT OF TRACK B-28.  THE
LOCATION OF HIS SEVERED HAND, CAP, LANTERN AND THE POOL OF BLOOD WAS
STRONG EVIDENCE THAT HE WAS KILLED APPROXIMATELY AT THE POINT WHERE THE
ENGINE BEGAN THIS BACKWARD MOVEMENT AND WHERE HE MIGHT HAVE BEEN
LOCATED IN THE PERFORMANCE OF HIS DUTIES.  TO THIS EVIDENCE MUST BE
ADDED THE PRESUMPTION THAT THE DECEASED WAS ACTUALLY ENGAGED IN THE
PERFORMANCE OF THOSE DUTIES AND EXERCISED DUE CARE FOR HIS OWN SAFETY
AT THE TIME OF HIS DEATH.  LOONEY V. METROPOLITAN R. CO., 200 U.S. 480,
488; ATCHISON, T. & S.F. RY. CO. V. TOOPS, SUPRA, 356; NEW AETNA
PORTLAND CEMENT CO. V. HATT, 231 F. 611, 617.  IN ADDITION, THE
EVIDENCE RELATING TO THE RULE AND CUSTOM OF RINGING A BELL "WHEN AN
ENGINE IS ABOUT TO MOVE" WARRANTED A FINDING THAT TENNANT WAS ENTITLED
TO RELY ON SUCH A WARNING UNDER THESE CIRCUMSTANCES.  THE ULTIMATE
INFERENCE THAT TENNANT WOULD NOT HAVE BEEN KILLED BUT FOR THE FAILURE
TO WARN HIM IS THEREFORE SUPPORTABLE.  THE RINGING OF THE BELL MIGHT
WELL HAVE SAVED HIS LIFE.  THE JURY COULD THUS FIND THAT RESPONDENT WAS
LIABLE "FOR ...  DEATH RESULTING IN WHOLE OR IN PART FROM THE
NEGLIGENCE OF ANY OF THE  ...  EMPLOYEES."  FN2 

IN HOLDING THAT THERE WAS NO EVIDENCE UPON WHICH TO BASE THE JURY'S
INFERENCE AS TO CAUSATION, THE COURT BELOW EMPHASIZED OTHER INFERENCES
WHICH ARE SUGGESTED BY THE CONFLICTING EVIDENCE.  THUS IT WAS SAID TO
BE UNREASONABLE TO ASSUME THAT TENNANT WAS STANDING ON THE TRACK NORTH
OF THE ENGINE IN THE PERFORMANCE OF HIS DUTIES.  IT SEEMED MORE
PROBABLE TO THE COURT THAT HE SEATED HIMSELF ON THE FOOTBOARD OF THE
ENGINE AND FELL ASLEEP.  OR HE MAY HAVE WALKED BACK UNNOTICED TO A
POINT SOUTH OF THE ENGINE AND BEEN KILLED WHILE TRYING TO CLIMB THROUGH
THE CARS TO THE OTHER SIDE OF THE TRACK.  THESE AND OTHER POSSIBILITIES
SUGGESTED BY DILIGENT COUNSEL FOR RESPONDENT ALL SUFFER FROM THE SAME
LACK OF DIRECT PROOF AS CHARACTERIZES THE ONE ADOPTED BY THE JURY.  BUT
TO THE EXTENT THAT THEY INVOLVE A DISOBEDIENCE OF DUTY BY TENNANT NO
PRESUMPTION IN THEIR FAVOR EXISTS.  NOR CAN ANY POSSIBLE ASSUMPTION OF
RISK OR CONTRIBUTORY NEGLIGENCE ON TENNANT'S PART BE PRESUMED IN ORDER
TO NEGATE AN INFERENCE THAT DEATH WAS DUE TO RESPONDENT'S NEGLIGENCE. 

IT IS NOT THE FUNCTION OF A COURT TO SEARCH THE RECORD FOR
CONFLICTING CIRCUMSTANTIAL EVIDENCE IN ORDER TO TAKE THE CASE AWAY FROM
THE JURY ON A THEORY THAT THE PROOF GIVES EQUAL SUPPORT TO INCONSISTENT
AND UNCERTAIN INFERENCES.  THE FOCAL POINT OF JUDICIAL REVIEW IS THE
REASONABLENESS OF THE PARTICULAR INFERENCE OR CONCLUSION DRAWN BY THE
JURY.  IT IS THE JURY, NOT THE COURT, WHICH IS THE FACT-FINDING BODY. 
IT WEIGHS THE CONTRADICTORY EVIDENCE AND INFERENCES, JUDGES THE
CREDIBILITY OF WITNESSES, RECEIVES EXPERT INSTRUCTIONS, AND DRAWS THE
ULTIMATE CONCLUSION AS TO THE FACTS.  THE VERY ESSENCE OF ITS FUNCTION
IS TO SELECT FROM AMONG CONFLICTING INFERENCES AND CONCLUSIONS THAT
WHICH IT CONSIDERS MOST REASONABLE.  WASHINGTON & GEORGETOWN R. CO. V.
MCDADE, 135 U.S. 554, 571, 572; TILLER V. ATLANTIC COAST LINE R. CO.,
SUPRA, 68; BAILEY V. CENTRAL VERMONT RY., 319 U.S. 350,353,354.  THAT
CONCLUSION, WHETHER IT RELATES TO NEGLIGENCE, CAUSATION OR ANY OTHER
FACTUAL MATTER, CANNOT BE IGNORED.  COURTS ARE NOT FREE TO REWEIGH THE
EVIDENCE AND SET ASIDE THE JURY VERDICT MERELY BECAUSE THE JURY COULD
HAVE DRAWN DIFFERENT INFERENCES OR CONCLUSIONS OR BECAUSE JUDGES FEEL
THAT OTHER RESULTS ARE MORE REASONABLE. 

UPON AN EXAMINATION OF THE RECORD WE CANNOT SAY THAT THE INFERENCE
DRAWN BY THIS JURY THAT RESPONDENT'S NEGLIGENCE CAUSED THE FATAL
ACCIDENT IS WITHOUT SUPPORT IN THE EVIDENCE.  THUS TO ENTER A JUDGMENT
FOR RESPONDENT NOTWITHSTANDING THE VERDICT IS TO DEPRIVE PETITIONER OF
THE RIGHT TO A JURY TRIAL.  NO REASON IS APPARENT WHY WE SHOULD
ABDICATE OUR DUTY TO PROTECT AND GUARD THAT RIGHT IN THIS CASE.  WE
ACCORDINGLY REVERSE THE JUDGMENT OF THE COURT BELOW AND REMAND THE CASE
TO IT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  35 STAT. 65, AS AMENDED; 36 STAT. 291; 53 STAT. 1404; 45 U.S.C.
SEC. 51. 

FN2  SEE NOTE 1, SUPRA. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON CONCUR IN THE
RESULT. 

MR. CHIEF JUSTICE STONE AND MR. JUSTICE ROBERTS ARE OF OPINION THAT
THE JUDGMENT SHOULD BE AFFIRMED. 
..END :





DEMOREST V. CITY BANK CO., 321 U.S. 36 


ARGUED DECEMBER 10, 1943.  - DECIDED JANUARY 17, 1944.  - 289 N.Y. 423,
46 N.E.2D 501, AFFIRMED.  - 290 N.Y. 885, 50 N.E.2D 293, AFFIRMED. 


1.  SUBDIVISION 2 OF SEC. 17-C OF THE PERSONAL PROPERTY LAW OF THE
STATE OF NEW YORK WHICH, WHERE THERE IS NO EXPRESS PROVISION IN THE
WILL OR TRUST, IN RESPECT OF SALVAGE OPERATIONS (UNCOMPLETED AT THE
DATE OF THE ENACTMENT) OF MORTGAGED PROPERTIES ACQUIRED BY A TRUSTEE BY
FORECLOSURE OR BY DEED IN LIEU OF FORECLOSURE, PRESCRIBES A RULE FOR
APPORTIONMENT OF THE PROCEEDS BETWEEN LIFE TENANT AND REMAINDERMAN,
HELD - AS AGAINST THE CLAIM OF REMAINDERMEN THAT THE STATUTE DEPRIVES
THEM OF PROPERTY WITHOUT DUE PROCESS OF LAW, IN THAT THE STATUTORY RULE
IS LESS FAVORABLE TO REMAINDER INTERESTS THAN WERE RULES THERETOFORE
EXISTING - NOT VIOLATIVE OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION.  P. 48. 

2.  DECISIONS OF THE NEW YORK COURT OF APPEALS PRIOR TO THE ENACTMENT
OF SUBDIVISION 2 OF SEC. 17-C, HELD NOT TO HAVE ESTABLISHED A RULE OF
PROPERTY WHEREBY THE REMAINDERMEN HERE ACQUIRED ANY VESTED RIGHTS.  P.
42. 

DEMOREST ET AL. V. CITY BANK FARMERS TRUST CO., TRUSTEE, ET AL. 

NO. 52.  APPEAL FROM THE SURROGATE'S COURT OF NEW YORK COUNTY, NEW
YORK* . 

*TOGETHER WITH NO. 227, DYETT, SPECIAL GUARDIAN, V. TITLE GUARANTEE &
TRUST CO. ET AL., ALSO ON APPEAL FROM THE SURROGATE'S COURT OF NEW YORK
COUNTY, NEW YORK. 

APPEALS FROM DECREES, ENTERED ON REMITTITUR FROM THE COURT OF APPEALS
OF NEW YORK, WHICH SUSTAINED THE CONSTITUTIONALITY OF SUBDIVISION 2 OF
SEC. 17-C OF THE PERSONAL PROPERTY LAW OF THE STATE OF NEW YORK. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

APPELLANTS IN THESE TWO CASES CHALLENGE THE CONSTITUTIONALITY OF
SUBDIVISION 2 OF SEC. 17-C OF THE PERSONAL PROPERTY LAW OF THE STATE OF
NEW YORK, APPROVED APRIL 13, 1940.  FN1  BECAUSE OF RETROACTIVITY IT IS
SAID TO OFFEND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO
THE FEDERAL CONSTITUTION BY TAKING FOR BENEFIT OF INCOME BENEFICIARIES
PROPERTY TO WHICH THE APPELLANTS AS BENEFICIARIES OF PRINCIPAL CLAIM
VESTED RIGHTS.  IT IS ASSERTED, ALSO, TO DENY EQUAL PROTECTION OF THE
LAWS. 

THE FACTS IN NO. 52 ARE THESE:  HENRY WEST DIED IN 1934.  HIS WILL,
SO FAR AS CONCERNS US, LEFT A RESIDUARY ESTATE IN TRUST.  NET INCOME
LESS CERTAIN PAYMENTS TO A BROTHER WAS GIVEN TO HIS WIFE DURING HER
LIFE OR WIDOWHOOD.  THEREAFTER, SUBJECT TO CERTAIN FURTHER TRUSTS, THE
RESIDUE WAS TO GO TO CONTINGENT REMAINDERMEN, AMONG WHOM ARE THE
APPELLANTS. 

AT DEATH WEST OWNED A NUMBER OF MORTGAGES.  OWING TO DEFAULTS, TITLES
TO NINE OF THE UNDERLYING PROPERTIES WERE ACQUIRED EITHER BY
FORECLOSURE SALE OR BY DEED IN LIEU THEREOF, AND HELD IN SEPARATE
ACCOUNTS AS ASSETS OF THE TRUST.  THE TRUSTEE'S ACCOUNTING DISCLOSED
THAT TWO SUCH SALVAGE OPERATIONS WERE COMPLETED BY SALE OF THE
PROPERTIES PRIOR TO THE ENACTMENT OF SEC. 17-C OF THE PERSONAL PROPERTY
LAW.  NO DISTRIBUTION HAD BEEN MADE OF THE PROCEEDS.  OBJECTIONS ON
BEHALF OF REMAINDERMEN QUESTIONED THE VALIDITY OF THE STATUTE AS
APPLIED TO APPORTIONING SUCH PROCEEDS BETWEEN INCOME AND PRINCIPAL. 
SURROGATE FOLEY, HOWEVER, UPHELD THE STATUTE AND RESOLVED THE
APPORTIONMENT UNDER ITS TERMS.  HIS DECREE WAS UNANIMOUSLY AFFIRMED BY
THE APPELLATE DIVISION OF THE SUPREME COURT FOR THE FIRST JUDICIAL
DEPARTMENT AND THEREAFTER WAS AFFIRMED BY THE COURT OF APPEALS, TWO
JUDGES DISSENTING.  MATTER OF WEST, 289 N.Y. 423, 46 N.E.2D 501.  THE
CASE IS BROUGHT HERE BY APPEAL. 

IN NO. 227, AUGUSTE SCHNITZLER DIED IN 1930, LEAVING A WILL WHICH PUT
HER RESIDUARY ESTATE IN TRUST WITH THE INCOME PAYABLE TO A SISTER FOR
LIFE.  THE INCOME BENEFICIARY DIED IN 1939.  SALVAGE OPERATIONS HAD
BEGUN IN THE LIFETIME OF THE BENEFICIARY AND WERE COMPLETED AFTER HER
DEATH.  SURROGATE DELEHANTY FOUND THAT OPERATION OF THE STATUTE
"RESULTED OVER THE WHOLE SALVAGE PERIOD IN TAKING FOR INCOME ACCOUNT
MORE THAN THE WHOLE OF WHAT THE PROPERTY EARNED IN THAT PERIOD.  THE
DEFICIT IN SO-CALLED 'INCOME' WAS MADE UP BY TAKING PRINCIPAL, OF
COURSE."  HE CONSIDERED THE RESULT "STARTLING" BUT SETTLED THE ACCOUNTS
UNDER THE STATUTE, LEAVING ITS VALIDITY TO BE DETERMINED BY APPELLATE
COURTS.  THE COURT OF APPEALS AFFIRMED WITHOUT OPINION ON THE AUTHORITY
OF MATTER OF WEST AND THE CASE COMES HERE BY APPEAL. 

THE GRIEVANCE OF REMAINDERMEN IN THESE CASES IS NOT THAT THEY HAVE
SUFFERED LOSS OR DEPRIVATION OF ANY SPECIFIC PROPERTY TO WHICH THEY HAD
LEGAL TITLE.  UNDER THE LAW OF NEW YORK THE WHOLE LEGAL ESTATE VESTS IN
THE TRUSTEE FOR PURPOSES OF THE TRUST,  FN2  INCLUDING TITLE TO
MORTGAGES AND TO REAL ESTATE ACQUIRED UPON OR IN LIEU OF THEIR
FORECLOSURE, WHICH BECOMES PERSONALTY FOR THE PURPOSES OF THE TRUST. 
FN3  WHERE THE INSTRUMENT CREATING THE TRUST DIRECTS PAYMENT OF INCOME
TO ONE SET OF BENEFICIARIES AND CORPUS TO ANOTHER, ALLOCATION OF
RECEIPTS AND DISBURSEMENTS AS BETWEEN CAPITAL AND INCOME IS SOMETIMES
ATTENDED WITH DIFFICULTY.  MORTGAGE INVESTMENTS MAY BE IMPERILED BY
DEFAULT IN INTEREST ONLY, OR PAYMENTS OF PRINCIPAL ALONE, OR OF BOTH,
BUT IN EITHER EVENT BOTH INCOME AND CAPITAL INTERESTS REQUIRE
PROTECTION.  ADVANCEMENTS OFTEN MUST BE MADE TO REMOVE TAX LIENS OR
OTHER PRIOR CHARGES, PAY COSTS OF FORECLOSURE, MAKE PROPERTY
TENANTABLE, OR TAKE CARE OF OPERATING LOSSES, WATCHMEN, OR INSURANCE. 
ON FINAL SALE THE PRICE, TOGETHER WITH RENTALS, MAY LEAVE EITHER A LOSS
OR A PROFIT, AND TO FOREGO INCOME FOR A PERIOD MAY RESULT IN A BETTER
SALE OF THE CAPITAL ASSET.  THE VARIETY OF CIRCUMSTANCES UNDER WHICH
TRUSTEES ARE CALLED UPON TO ALLOCATE ITEMS BETWEEN CAPITAL AND INCOME
ARE INNUMERABLE IN SALVAGE OPERATIONS, THE WILL RARELY PROVIDES
GUIDANCE, AND THE WISEST AND MOST FAITHFUL TRUSTEE IS UNABLE TO DRAW
THE LINE WITH ANY GREAT ASSURANCE.  EITHER THE INCOME BENEFICIARY OR
THE REMAINDERMEN MAY CHALLENGE HIS ACCOUNTS, FOR THEY HAVE EQUITABLE
INTERESTS WHICH CHANCERY WILL ENFORCE THAT THE TRUST BE ADMINISTERED
DILIGENTLY AND FAITHFULLY ACCORDING TO THE WILL AND THE LAW.  THE FLOOD
OF ISSUES AS TO ALLOTMENT OF RECEIPTS AND DISBURSEMENTS TO CAPITAL OR
INCOME ACCOUNT, FOLLOWING THE DEPRESSION, LED THE COURT OF APPEALS TO
ATTEMPT TO CLARIFY THE CHANCERY RULES ON THE SUBJECT FOR BETTER
GUIDANCE OF TRUSTEES AND THE COURTS THAT SUPERVISE THEM.  FN4  WHEN
THIS WAS ONLY PARTIALLY SUCCESSFUL, THE PROBLEM OF CLARIFICATION WAS
CARRIED FURTHER BY LEGISLATION.  THE REMAINDERMEN CLAIM AN
UNCONSTITUTIONAL TAKING OF THEIR PROPERTY RESULTS FROM THIS LEGISLATIVE
ENACTMENT OF RULES FOR DISTRIBUTION AS BETWEEN INCOME AND CAPITAL
BENEFICIARIES OF TRUST PROPERTY INVOLVED IN SALVAGE OPERATIONS, BECAUSE
THEY ARE LESS FAVORABLE TO THE REMAINDER INTERESTS IN THESE CASES THAN
THE RULES THEY CLAIM OTHERWISE WOULD HAVE APPLIED. 

APPELLANTS' CONTENTION IS THAT THE NEW YORK COURT OF APPEALS
ESTABLISHED A RULE OF APPORTIONMENT OF PROCEEDS OF SALVAGE OPERATIONS
OF MORTGAGED PROPERTY AS BETWEEN INCOME AND PRINCIPAL WHICH BECAME A
SETTLED RULE OF PROPERTY UNDER WHICH PROPERTY RIGHTS VESTED IN THEM
PRIOR TO ACCOUNTING BY THE TRUSTEES.  THIS, THEY SAY, WAS ACCOMPLISHED
BY THE DECISIONS IN MATTER OF CHAPAL, 269 N.Y. 464, 199 N.E. 762(1936),
AND MATTER OF OTIS, 276 N.Y. 101, 11 N.E.2D 556(1937).  THE COURT OF
APPEALS, HOWEVER, IN ONE OF THE PRESENT CASES HOLDS TO THE CONTRARY,
SAYING THAT THOSE OPINIONS REPRESENT TENTATIVE JUDICIAL EFFORTS TO
GUIDE THE DISCRETION OF TRUSTEES; THAT THEY DID NOT ESTABLISH RULES OF
PROPERTY; AND THAT THE LEGISLATURE APPEARS TO HAVE DONE NO MORE THAN TO
DIRECT TRUSTEES TO DO WHAT THEY ALREADY HAD DISCRETION TO DO, IN WHICH
CASE REMAINDERMEN COULD NOT HAVE INSISTED UPON THEIR BEING SURCHARGED
UNDER THE LAW BEFORE THE ENACTMENT. 

IN THUS REJECTING APPELLANTS' VERSION OF ITS PREVIOUS DECISIONS THE
COURT OF APPEALS DISPOSED OF THEIR CASES ON THE GROUND THAT APPELLANTS
HAVE NEVER POSSESSED UNDER NEW YORK LAW SUCH A PROPERTY RIGHT AS THEY
CLAIM HAS BEEN TAKEN FROM THEM.  IF THIS IS THE CASE, APPELLANTS HAVE
NO QUESTION FOR US UNDER THE DUE PROCESS CLAUSE.  DECISIONS OF THIS
COURT AS TO ITS PROVINCE IN SUCH CIRCUMSTANCES WERE SUMMARIZED IN BROAD
RIVER POWER CO. V. SOUTH CAROLINA, 281 U.S. 537, 540, AS FOLLOWS:
"WHETHER THE STATE COURT HAS DENIED TO RIGHTS ASSERTED UNDER LOCAL LAW
THE PROTECTION WHICH THE CONSTITUTION GUARANTEES IS A QUESTION UPON
WHICH THE PETITIONERS ARE ENTITLED TO INVOKE THE JUDGMENT OF THIS
COURT.  EVEN THOUGH THE CONSTITUTIONAL PROTECTION INVOKED BE DENIED ON
NON-FEDERAL GROUNDS, IT IS THE PROVINCE OF THIS COURT TO INQUIRE
WHETHER THE DECISION OF THE STATE COURT RESTS UPON A FAIR OR
SUBSTANTIAL BASIS.  IF UNSUBSTANTIAL, CONSTITUTIONAL OBLIGATIONS MAY
NOT BE THUS EVADED.  BUT IF THERE IS NO EVASION OF THE CONSTITUTIONAL
ISSUE, AND THE NON-FEDERAL GROUND OF DECISION HAS FAIR SUPPORT, THIS
COURT WILL NOT INQUIRE WHETHER THE RULE APPLIED BY THE STATE COURT IS
RIGHT OR WRONG, OR SUBSTITUTE ITS OWN VIEW OF WHAT SHOULD BE DEEMED THE
BETTER RULE, FOR THAT OF THE STATE COURT."  FN5 

DESPITE DIFFERENCE OF OPINION WITHIN THE COURT OF APPEALS AS TO THE
EFFECT OF ITS EARLIER CASES, WE THINK THAT THE DECISION OF THE MAJORITY
THAT THEY DID NOT AMOUNT TO A RULE OF PROPERTY DOES REST ON A FAIR AND
SUBSTANTIAL BASIS.  THE OPINION IN THE OTIS CASE HAD INDICATED A
TENTATIVE QUALITY IN ITS PRONOUNCEMENTS, SAYING:  "PERHAPS IT SHOULD BE
ADDED THAT A GENERAL RULE FOR SUCH SITUATIONS CANNOT BE ATTAINED AT A
BOUND, THAT NO RULE CAN BE FINAL FOR ALL CASES AND THAT ANY RULE MUST
IN THE END BE SHAPED BY CONSIDERATIONS OF BUSINESS POLICY. 
ACCORDINGLY, WE HAVE HERE PUT ASIDE INADEQUATE LEGAL ANALOGIES IN THE
ENDEAVOR TO EXPRESS FAIR, CONVENIENT, PRACTICAL GUIDES THAT WILL BE
LARGELY AUTOMATIC IN THEIR APPLICATION.  ONLY THE SURE RESULT OF TIME
WILL TELL HOW FAR WE HAVE SUCCEEDED."  AND THE OPINION HAD POINTED OUT
THAT THE DISBURSEMENT OF NET INCOME DURING SALVAGE OPERATIONS WAS LEFT
TO THE DISCRETION OF THE TRUSTEE WITH THE ADMONITION THAT THE
DISCRETION "SHOULD BE EXERCISED WITH APPROPRIATE REGARD FOR THE FACT
THAT UNLESS A LIFE TENANT GETS CASH HE DOES NOT GET ANYTHING IN THE
HERE AND NOW."  276 N.Y. 101, 115. 

THE EXECUTIVE COMMITTEE OF THE SURROGATES' ASSOCIATION OF THE STATE
OF NEW YORK, COMPOSED OF THE JUDICIAL OFFICERS IMMEDIATELY CHARGED WITH
APPLICATION OF THESE DECISIONS TO THE INSTRUCTION OF AND ACCOUNTINGS BY
TRUSTEES HELD A SIMILAR VIEW OF THE DISCRETION LEFT TO TRUSTEES.  THE
LEGISLATURE APPEARS TO HAVE BEEN OF THE SAME MIND IN ADOPTING THE NEW
LEGISLATION.  FN6  THE JUDICIAL EFFORT WAS TO FORMULATE GENERAL RULES
TO GUIDE FIDUCIARY DISCRETION.  THE CHAPAL DECISION WAS RENDERED IN
RESPONSE TO A TRUSTEE'S PETITION FOR INSTRUCTIONS.  BUT WHILE SUCH
DECISIONS WERE USEFUL AS PRECEDENTS, THEY WERE FELT NOT ADEQUATE TO
PROTECT TRUSTEES AGAINST THE HAZARDS OF LITIGATION IN PARTICULAR CASES,
AND THE AVOWED EFFORT OF THE COURT TO ADAPT THE LAW TO THE SITUATION
RESULTING FROM THE DEPRESSION FAILED IN PRACTICE.  FN7  HENCE THE
LEGISLATURE INTERVENED, ADOPTED A RULE WHICH THE TRUSTEE MIGHT HAVE
APPLIED BEFORE, IN ITS DISCRETION, AND PRESCRIBED IT AS A DEFINITE
STANDARD FOR SETTING APART INCOME, PROTECTING TRUSTEES AGAINST
LIABILITY TO REMAINDERMEN IF THEY FOLLOWED IT.  WHAT APPEARS REALLY TO
HAVE BEEN TAKEN FROM THE REMAINDERMAN IS HIS RIGHT TO QUESTION THE
EQUITY OF THE RULE IN HIS INDIVIDUAL CIRCUMSTANCES, A RIGHT WHICH HE
HAD WHILE IT WAS A RULE OF THE COURT.  IN THE CASE OF THE SCHNITZLER
TRUSTS WHERE THE RULE RESULTS IN INVASION OF THE REMAINDERMAN'S
PRINCIPAL TO MAKE GOOD TO THE LIFE BENEFICIARY THE STATUTORY ALLOWANCE
OF INCOME, SURROGATE DELEHANTY IMPLIED, AND NO ONE HAS DENIED, THAT THE
FLEXIBILITY OF THE FORMER RULE WOULD PROBABLY HAVE RESULTED IN A
SURCHARGE OF THE TRUSTEE'S ACCOUNTS, AND HENCE THAT THE REMAINDERMAN
HAS BEEN DEPRIVED OF THE VALUE WHICH BENEFIT OF THE CHAPAL-OTIS RULE
WOULD LIKELY ADD TO HIS REMAINDER.  OF COURSE THE VERY PURPOSE OF THE
STATUTE, AS SURROGATE FOLEY POINTS OUT, IS TO DEPRIVE HIM OF THAT
OBJECTION TO THE ACCOUNTS, TO PROTECT THE TRUSTEE AGAINST THAT HAZARD,
AND TO GIVE THE REMAINDERMAN OTHER COMPENSATORY ADVANTAGES.  THE
LEGISLATURE HAS FURTHERED CERTAINTY AT COST OF FLEXIBILITY. 

CONSTITUTIONAL VALIDITY OF THIS LEGISLATION IF IT HAD BEEN MADE
APPLICABLE TO ESTATES OF DECEDENTS DYING AFTER ITS ENACTMENT IS NOT
QUESTIONED.  IT IS OBJECTED ONLY THAT APPLICATION TO AN ESTATE WHOSE
ADMINISTRATION BEGAN BEFORE THE ACT SO AS TO TAKE AWAY THE
REMAINDERMAN'S RIGHT TO JUDICIAL EXAMINATION OF THE TRUSTEE'S
COMPUTATION OF INCOME MAKES IT VOID FOR RETROACTIVITY. 

IT MAY BE OBSERVED THAT INSOFAR AS APPELLANTS STAND ON THE CHAPAL
OTIS RULE IT CAN BENEFIT THEM ONLY IF IT MAY BE RETROACTIVE.  BOTH OF
THESE DECEDENTS DIED SEVERAL YEARS BEFORE EITHER OF THOSE DECISIONS. 
IF A PROPERTY RIGHT TO SOME PARTICULAR RULE OF INCOME ALLOTMENT IN
SALVAGE PROCEEDS VESTED AT ALL, IT WOULD SEEM TO HAVE DONE SO AT DEATH
OF THE TESTATOR.  IF SO, REMAINDERMEN WOULD HAVE TO SHOW THAT THEIR
PROPERTY RIGHT WAS ESTABLISHED BY DECISIONS THEN IN EXISTENCE, OR ELSE
THAT ADVANTAGES DERIVED FROM A LATER JUDICIAL DECISION MAY NOT BE
REPEALED.  THE CASE COMES TO THIS:  APPELLANTS TOOK REMAINDERS AT A
TIME WHEN THE RULES BY WHICH TO SEQUESTER THEIR INTERESTS IN PROCEEDS
FROM COMPLICATED OPERATIONS TO SALVAGE PROPERTY WERE SO INDEFINITE THAT
SEVERAL YEARS LATER THE COURT MADE AN EFFORT TO DEVISE MORE DEFINITIVE
RULES FOR THE PURPOSE.  THEY WERE BUT PARTLY SUCCESSFUL, AND A FEW
YEARS LATER THE LEGISLATURE MADE FURTHER AND PERHAPS MORE AUTHORITATIVE
AND FINAL RULES.  COMPARING THE LATER WITH THE EARLIER EFFORT, THE
REMAINDERMAN IN THESE PARTICULAR CASES FINDS HIMSELF PREJUDICED.  HE
SAYS WE MUST CONFIRM HIM IN THE EARLIER BY STRIKING DOWN THE LATER OF
TWO RETROACTIVE RULES OF LAW. 

THIS STATUTE DOES NOT PURPORT TO OPEN ACCOUNTINGS ALREADY CLOSED OR
TO TAKE AWAY RIGHTS OR REMAINDERS JUDICIALLY SETTLED UNDER THE OLD
RULE.  THE STATUTE IS APPLIED ONLY TO JUDICIAL SETTLEMENTS PENDING AT
OR INSTITUTED AFTER ITS ENACTMENT.  RIGHTS TO SUCCESSION BY WILL ARE
CREATED BY THE STATE AND MAY BE LIMITED, CONDITIONED, OR ABOLISHED BY
IT.  IRVING TRUST CO. V. DAY, 314 U.S. 556.  THE WHOLE CLUSTER OF
VEXATIOUS PROBLEMS ARISING FROM USES AND TRUSTS, MORTMAIN, THE RULE
AGAINST PERPETUITIES, AND TESTAMENTARY DIRECTIONS FOR ACCUMULATIONS OR
FOR SUSPENSIONS OF THE POWER OF ALIENATION, IS ONE WHOSE HISTORY
ADMONISHES AGAINST UNNECESSARY RIGIDITY.  THE STATE MAY EXTEND THE
TESTAMENTARY PRIVILEGE ON TERMS WHICH PERMIT TYING UP OF PROPERTY IN
TRUST FOR POSSIBLY LONG PERIODS.  BUT THE STATE ON CREATION OF SUCH A
TRUST DOES NOT LOSE POWER TO DEVISE NEW AND REASONABLE DIRECTIONS TO
THE TRUSTEE TO MEET NEW CONDITIONS ARISING DURING ITS ADMINISTRATION,
SUCH AS THE DEPRESSION PRESENTED TO TRUSTS HOLDING MORTGAGES.  CF. HOME
BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398.  NOTHING IN THE
FEDERAL CONSTITUTION WOULD WARRANT US IN HOLDING THAT JUDICIAL RULES
TENTATIVELY PUT FORWARD AND LEAVING MUCH TO DISCRETION WILL DEPRIVE THE
LEGISLATURE OF POWER TO MAKE FURTHER REASONABLE RULES WHICH IN ITS
OPINION WILL EXPEDITE AND MAKE MORE EQUITABLE THE DISTRIBUTION OF
MILLIONS OF DOLLARS OF PROPERTY LOCKED IN TESTAMENTARY TRUSTS, EVEN IF
THEY DO AFFECT THE VALUES OF VARIOUS INTERESTS AND EXPECTANCIES UNDER
THE TRUST.  THE FOURTEENTH AMENDMENT DOES NOT INVALIDATE THE ACT IN
QUESTION.  AFFIRMED. 

FN1  N.Y. LAWS 1940, C. 452, P. 1182.  THE SUBSECTION PROVIDES: 

"2.  THE EXISTING RULES OF PROCEDURE APPLYING TO SALVAGE OPERATIONS
RESPECTING EXISTING MORTGAGE INVESTMENTS ARE CONTINUED EXCEPT AS
MODIFIED BY THE SUBPARAGRAPHS HEREINAFTER SET FORTH.  THE TERMS AND
RULES OF PROCEDURE OF THIS SUBDIVISION SHALL APPLY SPECIFICALLY (A) TO
THE ESTATES OF PERSONS DYING BEFORE ITS ENACTMENT AND (B) TO MORTGAGES
ON REAL PROPERTY HELD BY A TRUSTEE UNDER A DEED OF TRUST OR OTHER
INSTRUMENT EXECUTED BEFORE THE DATE OF ITS ENACTMENT AND (C) TO REAL
PROPERTY ACQUIRED BY FORECLOSURE OF MORTGAGE OR REAL PROPERTY ACQUIRED
IN LIEU OF FORECLOSURE BEFORE OR AFTER THE DATE OF ITS ENACTMENT IN
TRUSTS CREATED OR MORTGAGE INVESTMENTS MADE PRIOR THERETO, AND (D) TO
ANY PENDING PROCEEDING OR ACTION FOR AN ACCOUNTING OF THE TRANSACTIONS
OF AN EXECUTOR OR TRUSTEE. 

"(A) NET INCOME DURING THE SALVAGE OPERATION UP TO THREE PER CENTUM
PER ANNUM UPON THE PRINCIPAL AMOUNT OF THE MORTGAGE SHALL BE PAID TO
THE LIFE TENANT, REGARDLESS OF PRINCIPAL ADVANCES FOR THE EXPENSES OF
FORECLOSURE OR OF CONVEYANCE IN LIEU OF FORECLOSURE AND ARREARS OF
TAXES AND OTHER LIENS WHICH OCCURRED PRIOR TO SUCH FORECLOSURE OR
CONVEYANCE AND THE COST OF ALL CAPITAL IMPROVEMENTS.  ANY PAYMENT OF
NET INCOME HERETOFORE OR HEREAFTER MADE TO THE LIFE TENANT UP TO SUCH
THREE PER CENTUM PER ANNUM SHALL BE FINAL AND SHALL BE NOT SUBJECT TO
RECOUPMENT FROM THE LIFE TENANT OR AS A SURCHARGE AGAINST THE TRUSTEE
OR EXECUTOR.  THE AMOUNT OF ALL SUCH PAYMENTS SHALL BE TAKEN INTO
ACCOUNT, HOWEVER, IN THE APPORTIONMENT OF THE PROCEEDS OF SALE AND
SHALL BE CHARGED AGAINST THE SHARE OF THE LIFE TENANT. 

"(B)  THE FOREGOING PRINCIPAL ADVANCES SHALL BE REPAID OUT OF EXCESS
NET INCOME ABOVE SUCH THREE PER CENTUM PER ANNUM.  WHEN PRINCIPAL
ADVANCES HAVE BEEN SATISFIED, ANY EXCESS INCOME SHALL BE IMPOUNDED
(SUBJECT TO REINVESTMENT UNDER THE TERMS OF THE WILL OR DEED) TO AWAIT
SALE AND APPORTIONMENT. 

"(C)  THE UNPAID PRINCIPAL ADVANCES SHALL BE A PRIMARY LIEN UPON THE
PROCEEDS OF SALE AND SHALL BE PAID FIRST OUT OF ANY CASH SO DERIVED. 
IF INSUFFICIENT THE BALANCE SHALL BE A PRIMARY LIEN UPON ANY PURCHASE
MONEY MORTGAGE RECEIVED UPON THE SALE. 

"(D)  THE PURPOSE OF THE ENACTMENT OF THIS SUBDIVISION IS DECLARED TO
BE THE SIMPLIFICATION OF THE RULES OF PROCEDURE IN MORTGAGE SALVAGE
OPERATIONS AND THE ELIMINATION OF PRESENT COMPLICATIONS WHICH WORK TO
THE DISADVANTAGE OF THE LIFE TENANT, WHO IS USUALLY THE PRINCIPAL
OBJECT OF THE TESTATOR'S OR SETTLOR'S BOUNTY, BY DEPRIVING HIM OF A
FIXED RIGHT TO THE ACTUAL PAYMENT OF ANY NET INCOME EARNED BY THE
PROPERTY.  SUCH FIXED RIGHT IS GRANTED IN LIEU OF THE DISCRETION NOW
GIVEN TO THE TRUSTEE TO PAY NET INCOME OR ANY PART THEREOF TO THE LIFE
TENANT.  THE GENERAL RULES OF THE APPORTIONMENT OF THE PROCEEDS OF SALE
BETWEEN LIFE TENANT AND REMAINDERMAN ARE RETAINED SUBJECT TO THE
EXPRESS MODIFICATIONS MADE HEREIN.  ONLY EQUITABLE ADJUSTMENTS AND
BALANCES AS BETWEEN THE PARTIES ARE INTENDED TO BE EFFECTUATED BY THE
PROVISIONS OF THIS SUBDIVISION.  IF ANY PROVISION OF THIS SUBDIVISION
OR THE APPLICATION THEREOF TO ANY MORTGAGE OR ACQUIRED PROPERTY BY
FORECLOSURE OR CONVEYANCE, OR TO ANY TRUST IS HELD INVALID, THE
REMAINDER OF THE SUBDIVISION AND THE APPLICATION OF SUCH PROVISION TO
ANY OTHER MORTGAGE OR PROPERTY ACQUIRED BY FORECLOSURE OR CONVEYANCE OR
OTHER TRUST SHALL NOT BE AFFECTED THEREBY." 

FN2  KNOX V. JONES, 47 N.Y. 389; BENNETT V. GARLOCK, 79 N.Y. 302. 
CF. 1 SCOTT ON TRUSTS, P. 3. 

FN3  LOCKMAN V. REILLY, 95 N.Y. 64. 

FN4  IN NEW YORK, POWER TO "DIRECT AND CONTROL THE CONDUCT, AND
SETTLE THE ACCOUNTS" OF TRUSTEES IS ALLOTTED TO THE SURROGATE'S COURT. 
SURROGATE'S COURT ACT SEC. 40(3). 

FN5  SEE SAME CASE ON REHEARING, 282 U.S. 187, AND SAUER V. NEW YORK,
206 U.S. 536, 546; LEATHE V. THOMAS, 207 U.S. 93; VANDALIA R. CO. V.
INDIANA, 207 U.S. 359, 367; ENTERPRISE IRRIGATION DIST. V. FARMERS
MUTUAL CANAL CO., 243 U.S. 157, 164; WARD V. LOVE COUNTY, 253 U.S. 17,
22; FOX RIVER PAPER CO. V. RAILROAD COMMISSION, 274 U.S. 651, 655. 
COMPARE UNITED FUEL GAS CO. V. RAILROAD COMMISSION, 278 U.S. 300, 307;
RISTY V. CHICAGO, R.I. & P. RY. CO., 270 U.S. 378, 387. 

FN6  WHEN IT WAS INTRODUCED INTO THE LEGISLATURE, THE BILL PROPOSING
SEC. 17-C CARRIED THE FOLLOWING EXPLANATORY NOTE BY THE SURROGATES'
ASSOCIATION: 

"THIS AMENDMENT IS PROPOSED BY THE EXECUTIVE COMMITTEE OF THE
SURROGATES' ASSOCIATION OF THE STATE OF NEW YORK.  ITS GENERAL PURPOSES
ARE: 

"(1)  TO SIMPLIFY THE COMPLICATED RULES RESTATED IN MATTER OF CHAPAL
(269 N.Y. 464) AND IN MATTER OF OTIS (276 N.Y. 101) RELATING TO
MORTGAGE SALVAGE OPERATIONS (A) IN EXISTING TRUSTS AS TO MORTGAGES
HEREAFTER ACQUIRED AS A TRUST INVESTMENT AND (B) IN TESTAMENTARY TRUSTS
CREATED BY THE WILL OF DECEDENT DYING AFTER ITS ENACTMENT AND (C) IN
INTER VIVOS TRUSTS CREATED BY AN INSTRUMENT EXECUTED AFTER ITS
ENACTMENT.  SUCH SIMPLIFICATION IS PROVIDED IN THE FIRST SUBDIVISION OF
THE NEW SECTION. 

"IN RECENT YEARS SECTION 17-A OF THE PERSONAL PROPERTY LAW WAS
ENACTED TO AVOID THE DIFFICULT PROBLEMS OF THE ALLOCATION OF STOCK
DIVIDENDS RECEIVED DURING THE PERIOD OF A TRUST.  UNDER THAT SECTION
THEY ARE NOW ALLOCATED WHOLLY TO CAPITAL.  SECTION 17-B OF THE PERSONAL
PROPERTY LAW WAS ENACTED TO ABOLISH THE INTRICATE RULE IN MATTER OF
BENSON (96 N.Y. 499) UNDER WHICH IT WAS NECESSARY TO CAPITALIZE THE
INCOME ON MONIES HELD WITHIN THE ESTATE FOR THE PAYMENT OF
ADMINISTRATION EXPENSES, DEBTS, TAXES AND PECUNIARY LEGACIES.  IN LINE
WITH THIS POLICY THE PROPOSED LEGISLATION CONTAINED IN THE FIRST
SUBDIVISION ABOLISHES, IN THE INSTANCES STATED ABOVE, THE CHAPAL-OTIS
RULES, AND WILL SUBSTITUTE A SIMPLE FORM OF THE TREATMENT OF THE
FORECLOSED REAL PROPERTY AS A PRINCIPAL ASSET OF THE TRUST.  IT IS TO
BE TREATED JUST AS A RAILROAD BOND UPON WHICH DEFAULT IN INTEREST
BEFORE SALE HAS OCCURRED. 

"(2)  FURTHER MODIFICATIONS ARE PROPOSED BY THE SECOND SUBDIVISION OF
THE SECTION AS TO MORTGAGE INVESTMENTS ALREADY MADE IN EXISTING
TRUSTS.  THE PRESENT RULES FOR APPORTIONMENT BETWEEN LIFE TENANT AND
REMAINDERMAN UNDER THE CHAPAL-OTIS CASES ARE CONTINUED AS TO EXISTING
TRUSTS WHERE THE INVESTMENT IN A MORTGAGE HAS BEEN MADE, WITH
MODIFICATION THEREOF IN TWO SPECIFIC INSTANCES. 

"(A)  THE CHAPAL-OTIS RULE AUTHORIZES THE TRUSTEE TO PAY SURPLUS NET
INCOME IN HIS DISCRETION.  TRUSTEES HAVE HESITATED TO PAY SUCH NET
INCOME BECAUSE IN THE CASE OF OVERPAYMENT TO THE LIFE TENANT, THE
TRUSTEE MIGHT BE SURCHARGED WITH THAT AMOUNT.  THE LIFE TENANT OF THE
TRUST MUST WAIT IN THE MAJORITY OF CASES FOR A LONG PERIOD OF TIME
BEFORE HE BECOMES ENTITLED TO THE PAYMENT OF ANY INCOME, BECAUSE OF THE
PRESENT REQUIREMENT THAT ADVANCES FROM PRINCIPAL FOR THE EXPENSES OF
FORECLOSURE AND FOR ARREARS OF TAXES AND OTHER LIENS MUST FIRST BE PAID
FROM THE NET INCOME OF THE PROPERTY.  THE AMENDMENT PROVIDES FOR THE
IMMEDIATE PAYMENT OF INCOME TO THE LIFE TENANT BEGINNING WITH THE DATE
OF THE ACQUISITION OF THE PROPERTY BY THE TRUSTEE BY FORECLOSURE OR
CONVEYANCE IN LIEU OF FORECLOSURE.  UNDER THE NEW PROVISIONS NET INCOME
UP TO THREE PER CENTUM OF THE FACE AMOUNT OF THE MORTGAGE IS SO
PAYABLE.  UNDER THE CHAPAL-OTIS RULES THE LIFE TENANT IS ENTITLED IN
THE FINAL APPORTIONMENT TO THE INCLUSION OF INTEREST AT THE MORTGAGE
RATE DURING THE PERIOD OF THE SALVAGE OPERATION.  THE RATE OF THREE PER
CENTUM IN THE NEW SECTION HAS BEEN RECOMMENDED AS A FAIR RETURN TO THE
LIFE TENANT AND AT THE SAME TIME A PROTECTION TO THE REMAINDERMAN IN
THE EVENT THAT THE PROPERTY IS SOLD AT LESS THAN THE FACE AMOUNTS OF
THE INCOME AND PRINCIPAL SHARES EMPLOYED AT THE RATIO OF THE
APPORTIONMENT.  (B) SURPLUS NET INCOME ABOVE THREE PER CENTUM IS TO BE
APPLIED TO THE PAYMENT OF ADVANCES FROM PRINCIPAL UNTIL THE AMOUNT OF
SUCH ADVANCES ARE SATISFIED.  WHEN THE PROPERTY IN THE SALVAGE
OPERATION IS SOLD, THE UNPAID BALANCE OF PRINCIPAL ADVANCES MUST BE
SATISFIED FIRST OUT OF THE CASH RECEIVED FROM THE SALE.  IF THERE BE
ANY UNPAID BALANCE DUE FOR PRINCIPAL ADVANCES, IT IS MADE A PRIMARY
LIEN UPON THE PURCHASE MONEY MORTGAGE.  THE AMENDMENT FURTHER DIRECTS
THAT AFTER PRINCIPAL ADVANCES HAVE BEEN PAID, THE SURPLUS NET INCOME
ABOVE THREE PER CENTUM, ACCRUING DURING THE SALVAGE OPERATION, SHALL BE
HELD BY THE TRUSTEE TO AWAIT SALE AND APPORTIONMENT UNDER THE CHAPAL
OTIS RULES."  N.Y. LAWS 1940, P. 1181. 

FN7  SURROGATE FOLEY IN THE DEMOREST CASE STATES THE EFFECT OF THIS
ACT AS FOLLOWS (MATTER OF WEST, 175 MISC. 1044, 1048, 26 N.Y.S.2D
622): 

"TWO RELATIVELY SIMPLE MODIFICATIONS OF THE CHAPAL-OTIS RULES WERE
MADE IN THIS SUBDIVISION.  UNDER THOSE RULES AND PARTICULARLY UNDER THE
LANGUAGE OF THE OPINION OF JUDGE LOUGHRAN IN MATTER OF OTIS (SUPRA), A
DISCRETIONARY POWER WAS GIVEN TO A TRUSTEE DURING A MORTGAGE SALVAGE
OPERATION TO DISBURSE INCOME TO THE LIFE TENANT, AFTER ADVANCES MADE
FROM PRINCIPAL AS AN INCIDENT TO THE ACQUISITION OF THE PROPERTY HAD
BEEN REPAID.  IT WAS FOUND, HOWEVER, THAT TRUSTEES HESITATED TO MAKE
ANY PAYMENT TO THE LIFE TENANT OR TO EXERCISE THE JUDICIAL DISCRETION
GIVEN TO THEM BY MATTER OF OTIS, BECAUSE OF THE FEAR OF A POSSIBLE
SURCHARGE IN THE EVENT OF AN OVERPAYMENT TO THE LIFE TENANT.  THE LIFE
TENANT IN ALMOST EVERY INSTANCE WAS THE PRIMARY OBJECT OF THE
TESTATOR'S BOUNTY.  THE BENEFICIARY INTENDED TO BE MOST FAVORED WAS
THUS DEPRIVED, BY THE TRUSTEE'S INACTION OR HESITANCY, OF RECEIVING
INCOME DURING THE ENTIRE SALVAGE PERIOD AND LARGE SUMS OF MONEY WERE
ACCUMULATED AND FROZEN.  THE INJUSTICE TO THE LIFE TENANT WAS
AGGRAVATED BY THE FACT THAT BECAUSE OF THE LACK OF A READY MARKET FOR
THE RESALE OF THE PROPERTY, THE SALVAGE OPERATION WAS UNDULY EXTENDED
FOR A LONG PERIOD OF YEARS.  THIS SITUATION IS EMPHASIZED BY THE FACTS
REVEALED IN THE PRESENT PROCEEDING.  OF THE SEVEN MORTGAGES NOW
INVOLVED IN THE SALVAGE OPERATIONS IN WHICH NO RESALE HAS TAKEN PLACE,
THE LONGEST PERIOD OF OPERATION HAS BEEN SIX YEARS AND TWO MONTHS.  THE
SHORTEST PERIOD HAS BEEN FOUR YEARS AND TEN MONTHS.  THUS THE AVERAGE
PERIOD OF OPERATION OF ALL SEVEN MORTGAGES HAS BEEN APPROXIMATELY FIVE
YEARS.  IN THE TWO COMPLETED OPERATIONS THE PERIODS OF SALVAGE WERE TWO
YEARS AND SIX MONTHS AND TWO YEARS AND EIGHT MONTHS.  THIS UNHAPPY
SITUATION HAS BEEN CORRECTED BY THE NEW LEGISLATION.  TRUSTEES ARE
EXPRESSLY AUTHORIZED TO PAY PROMPTLY NET INCOME DERIVED FROM THE
FORECLOSED OR ACQUIRED PROPERTY UP TO THREE PER CENTUM PER ANNUM UPON
THE FACE AMOUNT OF THE MORTGAGE.  FROM THE TIME OF THE PASSAGE OF THE
NEW ACT, IT HAS BEEN THE PRACTICAL EXPERIENCE AND OBSERVATION OF THE
SURROGATES THAT HUNDREDS OF THOUSANDS OF DOLLARS WHICH HAD BEEN
THERETOFORE ACCUMULATED, WERE PAID OUT TO LIFE TENANTS UPON THE
AUTHORITY GRANTED BY THE STATUTE.  WHERE THE TRUSTEE HAD PAID THE
YEARLY INCOME UP TO THE THREE PER CENT MAXIMUM TO THE LIFE TENANT, THE
STATUTE MADE THE PAYMENT FINAL.  IT WAS SPECIFICALLY STATED BY THE
LEGISLATURE THAT SUCH PAYMENT UP TO THE MAXIMUM WAS 'NOT SUBJECT TO
RECOUPMENT FROM THE LIFE TENANT OR AS A SURCHARGE AGAINST THE TRUSTEE
OR EXECUTOR.'  MOREOVER, UNDER THE NEW STATUTORY RULE, NET INCOME UP TO
THE MAXIMUM OF THREE PER CENT BECAME PAYABLE FROM THE VERY BEGINNING OF
THE SALVAGE OPERATION, THAT IS, FROM THE DATE OF ACQUISITION BY
FORECLOSURE OR BY DEED IN LIEU OF FORECLOSURE. 

"THE OTHER AMENDMENT TO THE CHAPAL-OTIS RULES MADE BY THE SECOND
SUBDIVISION OF THE NEW SECTION IN THE BALANCING OF THE EQUITIES,
FURNISHED PROTECTION TO THE REMAINDERMEN INTERESTED IN THE PRINCIPAL OF
THE TRUST.  EXCESS NET INCOME EARNED IN ANY ONE YEAR DURING THE SALVAGE
OPERATION ABOVE THE THREE PER CENT MAXIMUM PAYABLE TO THE LIFE TENANT,
WAS DIRECTED TO BE APPLIED TO ADVANCEMENTS FROM PRINCIPAL FOR ARREARS
OF TAXES AND OTHER LIENS WHICH ACCRUED PRIOR TO THE FORECLOSURE OR
ACQUISITION IN LIEU OF FORECLOSURE AND TO THE COST OF CAPITAL
IMPROVEMENTS.  WHERE ANY BALANCE OF UNPAID PRINCIPAL ADVANCES REMAINED
DUE AT THE CLOSE OF THE SALVAGE OPERATION, SUCH BALANCE WAS DECLARED TO
BE 'A PRIMARY LIEN UPON THE PROCEEDS OF SALE AND SHALL BE PAID FIRST
OUT OF ANY CASH SO DERIVED.  IF INSUFFICIENT THE BALANCE SHALL BE A
PRIMARY LIEN UPON ANY PURCHASE MONEY MORTGAGE RECEIVED UPON THE
SALE.'" 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS: 

THE NEW YORK COURT OF APPEALS STATED THAT IN FORMULATING THE
STATUTORY RULE IN QUESTION THE STATE LEGISLATURE DID NO MORE "THAN
DIRECT A TRUSTEE TO DO WHAT UNDER THE DECISIONS OF THIS COURT HE HAS
DISCRETIONARY POWER TO DO."  289 N.Y. 423, 430, 46 N.E.2D 501.  AND IT
WENT ON TO SAY, "BEFORE THE ENACTMENT OF THIS STATUTE, THE LIFE TENANT
COULD NOT HAVE DEMANDED AS OF RIGHT THE PAYMENT TO HIM DURING
LIQUIDATION OF MORE OF THE SURPLUS INCOME THAN HE WILL RECEIVE UNDER
THE STATUTE.  NEITHER DOES IT APPEAR THAT THE REMAINDERMEN COULD
PROPERLY HAVE INSISTED THAT THE TRUSTEE SHOULD BE SURCHARGED IF IN THE
EXERCISE OF HIS DISCRETION HE HAD PAID TO THE LIFE TENANT THE AMOUNT
WHICH THE STATUTE NOW DIRECTS."  ID.  THAT IS A QUESTION OF NEW YORK
LAW ON WHICH THE NEW YORK COURT HAS THE FINAL SAY.  IT IS NONE OF OUR
BUSINESS - WHETHER WE DEEM THAT INTERPRETATION TO BE REASONABLE OR
UNREASONABLE, SOUND OR ERRONEOUS.  SAUER V. NEW YORK, 206 U.S. 536, 545
548.  AND THERE IS NO SUGGESTION HERE THAT STATE LAW HAS BEEN
MANIPULATED IN EVASION OF A FEDERAL CONSTITUTIONAL RIGHT.  FOX RIVER
PAPER CO. V. RAILROAD COMMISSION, 274 U.S. 651, 657; BROAD RIVER POWER
CO. V. SOUTH CAROLINA, 281 U.S. 537, 540.  CONSEQUENTLY I CAN SEE NO
POSSIBLE CLAIM TO SUBSTANTIALITY OF ANY FEDERAL QUESTION, WHATEVER VIEW
MAY BE TAKEN OF THE DUE PROCESS CLAUSE.  I WOULD THEREFORE DISMISS THE
APPEAL. 
..END :







TRAINMEN V. TOLEDO, P. & W.R. CO., 321 U.S. 50 


NO. 28.  ARGUED NOVEMBER 9, 10, 1943.  - DECIDED JANUARY 17, 1944.  -
132 F.2D 265, REVERSED. 


1.  A RAILROAD COMPANY WHICH REFUSED TO SUBMIT A LABOR DISPUTE TO
ARBITRATION IN ACCORDANCE WITH PROVISIONS OF THE RAILWAY LABOR ACT -
ALTHOUGH IT HAD SOUGHT TO SETTLE THE DISPUTE BY NEGOTIATION AND BY
MEDIATION - HAS NOT MADE "EVERY REASONABLE EFFORT" TO SETTLE THE
DISPUTE, WITHIN THE MEANING OF SEC. 8 OF THE NORRIS-LAGUARDIA ACT, AND
IS THEREBY BARRED FROM INJUNCTIVE RELIEF IN THE FEDERAL COURTS.  P.
56. 

2.  SECTION 8 OF THE NORRIS-LAGUARDIA ACT EXTENDS TO RAILWAY LABOR
DISPUTES.  P. 58. 

3.  THE REQUIREMENT OF SEC. 8 OF THE NORRIS-LAGUARDIA ACT THAT A
COMPLAINANT MUST MAKE "EVERY REASONABLE EFFORT"  - "EITHER BY
NEGOTIATION OR WITH THE AID OF ANY AVAILABLE GOVERNMENTAL MACHINERY OF
MEDIATION OR VOLUNTARY ARBITRATION"  - TO SETTLE THE LABOR DISPUTE
BEFORE HE MAY HAVE INJUNCTIVE RELIEF IN THE FEDERAL COURTS, IS NOT
SATISFIED BY HIS HAVING RESORTED TO ONE OR TWO OF THE THREE PRESCRIBED
METHODS OF CONCILIATION.  P. 60. 

4.  THAT UNDER SEC. 8 OF THE NORRIS-LAGUARDIA ACT A COMPLAINANT MAY
NOT HAVE INJUNCTIVE RELIEF IF HE HAS NOT SUBMITTED THE LABOR DISPUTE TO
ARBITRATION DOES NOT MAKE ARBITRATION COMPULSORY.  P. 62. 

5.  FAILURE TO SATISFY THE REQUIREMENTS OF SEC. 8 OF THE NORRIS
LAGUARDIA ACT DOES NOT LEAVE THE COMPLAINANT WITHOUT LEGAL PROTECTION
BUT DEPRIVES HIM ONLY OF ONE FORM OF REMEDY WHICH CONGRESS, EXERCISING
ITS PLENARY CONTROL OVER THE JURISDICTION OF THE FEDERAL COURTS, HAS
SEEN FIT TO WITHHOLD.  P. 63. 

6.  THE COURT IS NOT CONCERNED WITH THE WISDOM OF ACTS OF CONGRESS. 
P. 64. 

7.  WHERE A COMPLAINANT HAS STEADFASTLY REFUSED TO SUBMIT A LABOR
DISPUTE TO ARBITRATION, SEC. 8 OF THE NORRIS-LAGUARDIA ACT IS NOT
NECESSARILY RENDERED INAPPLICABLE BY THE FACT THAT SOME VIOLENCE IS
INVOLVED.  P. 65. 

BROTHERHOOD OF RAILROAD TRAINMEN, ENTERPRISE LODGE, NO. 27, ET AL. V.
TOLEDO, PEORIA & WESTERN RAILROAD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 318 U.S. 755, TO REVIEW THE AFFIRMANCE OF AN ORDER
GRANTING A TEMPORARY INJUNCTION IN A SUIT ARISING OUT OF A LABOR
DISPUTE. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE IMPORTANT QUESTION IS WHETHER THE DISTRICT COURT PROPERLY ISSUED
AN INJUNCTION WHICH RESTRAINED RESPONDENT'S EMPLOYEES, CONDUCTORS,
YARDMEN, ENGINEMEN AND FIREMEN, FROM INTERFERING BY VIOLENCE OR THREATS
OF VIOLENCE WITH ITS PROPERTY AND INTERSTATE RAILROAD OPERATIONS.  THE
SOLE ISSUES THAT CONCERN US ARE THE EXISTENCE OF FEDERAL JURISDICTION
AND WHETHER THE REQUIREMENTS OF THE NORRIS-LAGUARDIA ACT (29 U.S.C.
SECS. 107, 108, 47 STAT. 71, 72) WERE SATISFIED. 

THE CASE ARISES OUT OF A LONG-CONTINUED LABOR DISPUTE RELATING TO
WORKING CONDITIONS AND RATES OF PAY.  NEGOTIATIONS BETWEEN THE PARTIES,
BEGINNING IN OCTOBER, 1940, FAILED.  A LONG COURSE OF MEDIATION, WITH
THE AID OF THE NATIONAL MEDIATION BOARD, RESULTED LIKEWISE. 
ACCORDINGLY, ON NOVEMBER 7, 1941, THE MEDIATOR PROPOSED ARBITRATION
PURSUANT TO THE RAILWAY LABOR ACT'S PROVISIONS.  45 U.S.C. SEC. 155,
FIRST (B), 48 STAT. 1195.  BOTH PARTIES REFUSED.  THEREUPON, AS THE ACT
REQUIRES, THE BOARD TERMINATED ITS SERVICES.  IBID. THIS OCCURRED
NOVEMBER 21, 1941.  UNDER THE STATUTE, NO CHANGE IN RATES OF PAY,
RULES, WORKING CONDITIONS OR ESTABLISHED PRACTICES CAN BE MADE FOR
THIRTY DAYS, UNLESS IN THAT TIME THE PARTIES AGREE TO ARBITRATION OR AN
EMERGENCY BOARD IS CREATED UNDER SEC. 10.  IBID.  ANTICIPATING
RESPONDENT WOULD PUT INTO EFFECT ITS PROPOSED SEHEDULES AT THE END OF
THE PERIOD, THE EMPLOYEES VOTED TO STRIKE.  THE TIME FOR STOPPING WORK
WAS SET FOR DECEMBER 9 AT 11:00 A.M.  RESPONDENT KNEW OF THE VOTING ON
OR BEFORE DECEMBER 6, BUT DID NOT RECEIVE FORMAL NOTICE OF THE STRIKE
UNTIL ABOUT NOON OF DECEMBER 8. 

WITH THE BOMBING OF PEARL HARBOR ON DECEMBER 7, THE MEDIATION BOARD
AGAIN INTERVENED, STRONGLY URGING BOTH SIDES TO SETTLE THE DISPUTE IN
VIEW OF THE NATIONAL EMERGENCY.  AT THE BOARD'S REQUEST THE EMPLOYEES
HAD POSTPONED THE STRIKE INDEFINITELY.  FN1  FURTHER CONFERENCES FAILED
TO BRING AGREEMENT AND ON DECEMBER 17 THE BOARD AGAIN URGED THAT THE
DISPUTANTS AGREE TO ARBITRATION UNDER THE STATUTE.  THIS TIME THE
EMPLOYEES ACCEPTED.  FN2  BUT RESPONDENT CONTINUED ITS REFUSAL, THOUGH
IT ALSO CONTINUED TO URGE THE APPOINTMENT OF AN EMERGENCY BOARD.  AND,
WHILE THE RECORD DOES NOT SHOW THAT RESPONDENT WAS NOTIFIED FORMALLY OF
THE EMPLOYEES' AGREEMENT TO ARBITRATE UNTIL DECEMBER 28, NEITHER DOES
IT APPEAR THAT RESPONDENT DID NOT KNOW OF THIS FACT BEFORE THAT TIME. 

ON DECEMBER 21, EXACTLY THE EXPIRATION OF THE THIRTY-DAY PERIOD,
RESPONDENT BY LETTER NOTIFIED THE EMPLOYEES AND THEIR REPRESENTATIVES
THAT ITS PROPOSED SCHEDULES WOULD BECOME EFFECTIVE AT 12:01 A.M.,
DECEMBER 29.  BY LETTER DATED DECEMBER 27 AND RECEIVED BY RESPONDENT
BEFORE NOON ON DECEMBER 28, THE EMPLOYEES SERVED NOTICE THAT A STRIKE
WOULD TAKE EFFECT DECEMBER 28 AT SIX O'CLOCK IN THE EVENING.  BY WIRE
WHICH RESPONDENT RECEIVED THAT DAY, THE BOARD AGAIN STRONGLY URGED
ARBITRATION, POINTING OUT THE EMPLOYEES HAD ACCEDED TO THE BOARD'S
REQUEST.  RESPONDENT AGAIN DECLINED AND URGED AN EMERGENCY BOARD BE
APPOINTED. 

THE STRIKE TOOK EFFECT AT THE APPOINTED TIME.  PICKET LINES WERE
FORMED.  RESPONDENT UNDERTOOK TO CONTINUE OPERATIONS WITH OTHER
EMPLOYEES.  IT EMPLOYED "SPECIAL AGENTS" TO PROTECT ITS TRAINS AND
PROPERTY.  FN3  CLASHES OCCURRED BETWEEN THEM AND THE WORKING
EMPLOYEES, ON THE ONE HAND, AND THE STRIKING EMPLOYEES ON THE OTHER. 
VARIOUS INCIDENTS INVOLVING VIOLENCE OR THREATS OF VIOLENCE TOOK
PLACE.  SOME RESULTED IN PERSONAL ATTACKS, OTHERS IN DAMAGE TO PROPERTY
AND INTERRUPTION OF SERVICE.  THE RESPONDENT SOUGHT THE AID OF PUBLIC
AUTHORITIES, INCLUDING THE SHERIFFS OF COUNTIES ALONG ITS RIGHT OF WAY
AND POLICE AUTHORITIES IN CITIES AND TOWNS WHICH IT SERVED.  SOME
ASSISTANCE WAS OFFERED, BUT IN SOME INSTANCES THE AUTHORITIES REPLIED
THEY HAD FORCES INADEQUATE TO SUPPLY THE AID RESPONDENT REQUESTED AND
IN OTHERS NO REPLY WAS GIVEN.  THE PARTIES ARE AT ODDS CONCERNING THE
EXTENT OF THE VIOLENCE, THE NEED FOR PUBLIC PROTECTION, AND THE
ADEQUACY OF WHAT WAS SUPPLIED OR AVAILABLE.  BUT THE FINDINGS OF THE
DISTRICT COURT ARE THAT THE VIOLENCE WAS SUBSTANTIAL AND THE PROTECTION
SUPPLIED BY THE PUBLIC OFFICIALS WAS INADEQUATE.  THESE INCIDENTS TOOK
PLACE THROUGH THE PERIOD EXTENDING FROM DECEMBER 29, 1941, TO JANUARY
3, 1942. 

ON THE LATTER DATE RESPONDENT FILED ITS COMPLAINT, ASKING FOR A
TEMPORARY RESTRAINING ORDER AND, AFTER HEARING, AN INJUNCTION
RESTRAINING PETITIONERS FROM INTERFERING WITH ITS OPERATIONS AND
PROPERTY.  THE RESTRAINING ORDER ISSUED EX PARTE THE SAME DAY,
RESPONDENT GIVING BOND AS REQUIRED (29 U.S.C. SEC. 107, 47 STAT. 71-72)
FOR INDEMNITY AGAINST LOSS OCCASIONED BY ITS IMPROVIDENT OR ERRONEOUS
ISSUANCE. 

HEARING ON THE APPLICATION FOR A TEMPORARY INJUNCTION BEGAN JANUARY 8
AND CONTINUED TO JANUARY 19.  TWO EXTENSIONS CONTINUED THE RESTRAINING
ORDER IN FORCE UNTIL THE HEARING WAS COMPLETED.  PETITIONERS MOVED TO
VACATE THE EXTENSIONS ON JANUARY 15 AND AGAIN AT THE CLOSE OF THE
HEARING ON JANUARY 19, AND TO DISMISS THE COMPLAINT.  THESE MOTIONS
WERE DENIED, AND THE COURT MADE FINDINGS OF FACT AND CONCLUSIONS OF LAW
SUSTAINING RESPONDENT'S CONTENTIONS.  THEREUPON THE TEMPORARY
INJUNCTION ISSUED.  IN DUE COURSE APPEAL WAS PERFECTED FROM THE ORDER
FOR ITS ISSUANCE AND THE PREVIOUS ORDERS DENYING PETITIONERS' VARIOUS
MOTIONS TO VACATE THE EXTENSIONS AND TO DISMISS THE COMPLAINT.  THE
CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING, AFFIRMED THE JUDGMENT. 
132 F.2D 265.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE
ISSUES PRESENTED.  318 U.S. 755.  FN4 

THREE PRINCIPAL ISSUES HAVE BEEN MADE IN THE LOWER COURTS AND HERE. 
STATED IN THE FORM OF PETITIONERS' CONTENTIONS, THEY ARE:  (1) THE
DISTRICT COURT WAS WITHOUT JURISDICTION, SINCE THERE IS NO CLAIM OF
DIVERSITY OF CITIZENSHIP AND, IT IS SAID, NO FEDERAL QUESTION IS
INVOLVED; FN5 (2) THE EVIDENCE WAS NOT SUFFICIENT TO SHOW THAT THE
PUBLIC AUTHORITIES WERE UNWILLING OR UNABLE TO FURNISH ADEQUATE
PROTECTION FOR RESPONDENT'S PROPERTY; FN6  AND (3) RESPONDENT DID NOT
MAKE EVERY REASONABLE EFFORT TO SETTLE THE DISPUTE AS REQUIRED BY THE
NORRIS-LAGUARDIA ACT.  FN7 WITHOUT PASSING UPON THE OTHERS, WE THINK
THE LAST CONTENTION MUST BE SUSTAINED. 

72) PROVIDES: 

"NO RESTRAINING ORDER OR INJUNCTIVE RELIEF SHALL BE GRANTED TO ANY
COMPLAINANT WHO HAS FAILED TO COMPLY WITH ANY OBLIGATION IMPOSED BY LAW
WHICH IS INVOLVED IN THE LABOR DISPUTE IN QUESTION, OR WHO HAS FAILED
TO MAKE EVERY REASONABLE EFFORT TO SETTLE SUCH DISPUTE EITHER BY
NEGOTIATION OR WITH THE AID OF ANY AVAILABLE GOVERNMENTAL MACHINERY OF
MEDIATION OR VOLUNTARY ARBITRATION." 

THE QUESTION, BROADLY STATED, IS WHETHER RESPONDENT MADE "EVERY
REASONABLE EFFORT" TO SETTLE THE DISPUTE, AS THE SECTION REQUIRES.  ON
THE FACTS THIS NARROWS TO WHETHER ITS STEADFAST REFUSAL TO AGREE TO
ARBITRATION UNDER THE RAILWAY LABOR ACT'S PROVISIONS MADE THE SECTION
OPERATIVE.  WE THINK IT DID, WITH THE CONSEQUENCE THAT THE FEDERAL
COURTS WERE DEPRIVED OF THE POWER TO AFFORD INJUNCTIVE RELIEF AND
RESPONDENT WAS REMITTED TO OTHER FORMS OF LEGAL REMEDY WHICH REMAINED
AVAILABLE.  FN8 

RESPONDENT WAS SUBJECT TO THE RAILWAY LABOR ACT.  ITS PROVISIONS AND
MACHINERY FOR VOLUNTARY ARBITRATION WERE "AVAILABLE."  RESORT TO THEM
WOULD HAVE BEEN A "REASONABLE EFFORT TO SETTLE" THE DISPUTE.  CLEARLY
ARBITRATION UNDER THE ACT WAS A METHOD, BOTH REASONABLE AND AVAILABLE,
FN9 WHICH RESPONDENT REFUSED TO EMPLOY, NOT ONCE, BUT REPEATEDLY AND
ADAMANTLY.  IF IT HAD BEEN USED, IT WOULD HAVE AVERTED THE STRIKE, THE
VIOLENCE WHICH FOLLOWED, AND THE NEED FOR AN INJUNCTION.  FN10 

WHOM IT IS AVAILABLE MAY HAVE INJUNCTIVE RELIEF.  BROADLY, THE SECTION
IMPOSES TWO CONDITIONS.  IF A COMPLAINANT HAS FAILED (1) TO COMPLY WITH
ANY OBLIGATION IMPOSED BY LAW OR (2) TO MAKE EVERY REASONABLE EFFORT TO
SETTLE THE DISPUTE, HE IS FORBIDDEN RELIEF.  THE LATTER CONDITION IS
BROADER THAN THE FORMER.  ONE MUST NOT ONLY DISCHARGE HIS LEGAL
OBLIGATIONS.  HE MUST ALSO GO BEYOND THEM AND MAKE ALL REASONABLE
EFFORT, AT THE LEAST BY THE METHODS SPECIFIED IF THEY ARE AVAILABLE,
THOUGH NONE MAY INVOLVE COMPLYING WITH ANY LEGAL DUTY.  ANY OTHER VIEW
WOULD MAKE THE SECOND CONDITION WHOLLY REDUNDANT.  IT CLEARLY IS NOT
THE SECTION'S PURPOSE, THEREFORE, BY THAT CONDITION, TO REQUIRE ONLY
WHAT ONE IS COMPELLED BY LAW TO DO.  YET, AS WILL APPEAR, THIS WOULD BE
THE EFFECT OF ACCEPTING RESPONDENT'S POSITION. 

IT IS WHOLLY INCONSISTENT WITH THE SECTION'S LANGUAGE AND PURPOSE TO
CONSTRUE IT, AS HAVE RESPONDENT AND THE LOWER COURTS, TO REQUIRE
REASONABLE EFFORT BY ONLY ONE CONCILIATORY DEVICE WHEN OTHERS ARE
AVAILABLE.  THE EXPLICIT TERMS DEMAND "EVERY REASONABLE EFFORT" TO
SETTLE THE DISPUTE.  THREE MODES ARE SPECIFIED.  FN11  THEY WERE THE
NORMAL ONES FOR SETTLEMENT OF LABOR DISPUTES BY THE EFFORTS OF THE
PARTIES THEMSELVES AND THE AID OF AGENCIES ADAPTED SPECIALLY FOR THE
PURPOSE.  THE RAILWAY LABOR ACT  FN12  PROVIDED FOR ALL OF THEM, WITH
THE AID OF GOVERNMENTAL MACHINERY IN THE STAGES OF MEDIATION AND
ARBITRATION.  SECTION 8 IS NOT LIMITED TO RAILWAY LABOR DISPUTES.  BUT
IT INCLUDES THEM.  FN13  AND ITS VERY TERMS SHOW THEY WERE USED IN
EXPLICIT CONTEMPLATION OF THE PROCEDURES AND MACHINERY THEN EXISTING
UNDER THE RAILWAY LABOR ACT AND WITH THE INTENT OF MAKING THEIR
EXHAUSTION CONDITIONS FOR SECURING INJUNCTIVE RELIEF, NOT SINGLY OR
ALTERNATIVELY, BUT CONJUNCTIVELY OR SUCCESSIVELY, WHEN AVAILABLE.  THIS
PURPOSE OF CONGRESS IS PUT BEYOND QUESTION WHEN THE SECTION'S
LEGISLATIVE HISTORY IS CONSIDERED IN THE LIGHT OF THE HISTORY AND THE
BASIC COMMON POLICY OF THE TWO STATUTES, THE RAILWAY LABOR ACT AND THE
NORRIS-LAGUARDIA ACT. 

THE POLICY OF THE RAILWAY LABOR ACT WAS TO ENCOURAGE USE OF THE
NONJUDICIAL PROCESSES OF NEGOTIATION, MEDIATION AND ARBITRATION FOR THE
ADJUSTMENT OF LABOR DISPUTES.  CF. GENERAL COMMITTEE OF ADJUSTMENT V.
MISSOURI-KANSAS-TEXAS R. CO., 320 U.S. 323; GENERAL COMMITTEE OF
ADJUSTMENT V. SOUTHERN PACIFIC CO., 320 U.S. 338.  THE OVER-ALL POLICY
OF THE NORRIS-LAGUARDIA ACT WAS THE SAME.  THE LATTER DID NOT ENTIRELY
ABOLISH JUDICIAL POWER TO IMPOSE PREVIOUS RESTRAINT IN LABOR
CONTROVERSIES.  BUT ITS PRIME PURPOSE WAS TO RESTRICT THE FEDERAL
EQUITY POWER IN SUCH MATTERS WITHIN GREATLY NARROWER LIMITS THAN IT HAD
COME TO OCCUPY.  FN14  IT SOUGHT TO MAKE INJUNCTION A LAST LINE OF
DEFENSE, AVAILABLE NOT ONLY AFTER OTHER LEGALLY REQUIRED METHODS, BUT
AFTER ALL REASONABLE METHODS AS WELL, HAVE BEEN TRIED AND FOUND
WANTING.  THIS PURPOSE RUNS THROUGHOUT THE ACT'S PROVISIONS.  IT IS
DOMINANT AND EXPLICIT IN SEC. 8.  IN SHORT, THE INTENT EVIDENCED BOTH
BY WORDS AND BY POLICY WAS TO GEAR THE SECTION'S REQUIREMENTS SQUARELY
INTO THE METHODS AND PROCEDURES PRESCRIBED BY THE RAILWAY LABOR ACT. 

SHORT REFERENCE TO THE LEGISLATIVE HISTORY MAKES THIS PLAIN.  THERE
WAS EXTENDED DISCUSSION OF THE BILL IN THE CONGRESSIONAL DEBATES, A
CONSIDERABLE PART RELATING TO THE RAILWAY LABOR ACT'S PROVISIONS AND
OPERATION.  FN15  NO ONE SUGGESTED THAT THE BILL AND THAT ACT WERE NOT
TO BE MESHED IN OPERATION OR THAT COMPLIANCE WITH ONLY ONE OF THE
METHODS PRESCRIBED IN SEC. 8 WOULD SATISFY ITS REQUIREMENT OF
"REASONABLE EFFORT."  ON THE CONTRARY, IT SEEMS TO HAVE BEEN TAKEN FOR
GRANTED THAT EXHAUSTION OF ALL IS DEMANDED.  NUMEROUS PROPOSALS FOR
AMENDMENT IN OTHER RESPECTS WERE MADE, BUT THERE WERE NONE FOR CHANGING
THIS REQUIREMENT.  AND REPRESENTATIVE LAGUARDIA, WHO SPONSORED THE BILL
IN THE HOUSE, AFTER QUOTING AND DISCUSSING PROVISIONS OF THE RAILWAY
LABOR ACT OF 1926, QUOTED SEC. 8 AND SAID, WITHOUT CHALLENGE TO HIS
CONSTRUCTION: 

"SO THAT THERE IS THE TIE-UP BETWEEN THE PROVISIONS OF THE RAILROAD
LABOR ACT AND THE NECESSITY OF EXHAUSTING EVERY REMEDY TO ADJUST ANY
DIFFERENCE WHICH MIGHT ARISE.  THE WORKERS COULD NOT AND WOULD NOT
THINK OF GOING ON STRIKE BEFORE ALL THE REMEDIES PROVIDED IN THE LAW
HAVE BEEN EXHAUSTED.  IF THE RAILROADS HAVE COMPLIED, THEY WOULD NOT,
AS HAS BEEN SUGGESTED (BY REPRESENTATIVE BECK), BE DEPRIVED OF ANY
RELIEF WHICH THEY MAY HAVE IN LAW OR EQUITY." 

REPRESENTATIVE O'CONNOR, SUPPORTING THE SPONSOR'S VIEW, CHARACTERIZED
SEC. 8 AS "THE 'CLEAN HANDS' PROVISION" AND SAID: 

"THAT SECTION PROVIDES THAT A COMPLAINANT SHALL NOT BE ENTITLED TO AN
INJUNCTION IF HE HAS NOT COMPLIED WITH ANY CONTRACT OR OBLIGATION ON
HIS PART OR HAS NOT MADE EVERY REASONABLE EFFORT TO SETTLE THE DISPUTE
BY THE AVAILABLE METHODS OF ARBITRATION OR MEDIATION.  SURELY, THIS
FUNDAMENTAL PRINCIPLE OF EQUITY THAT 'HE WHO SEEKS JUSTICE MUST DO
JUSTICE' SHOULD APPLY IN LABOR DISPUTES AS WELL AS IN OTHER JUDICIAL
CONTROVERSIES."  FN17    TO CONSTRUE THE SECTION THEREFORE AS REQUIRING
BUT ONE OF THE THREE METHODS TO BE USED, WHEN THE OTHER TWO ARE EQUALLY
AVAILABLE, WOULD EMASCULATE THE LANGUAGE AND WOULD DEFEAT THE PURPOSE
AND THE POLICY OF THE STATUTE. 

IT WOULD DO THIS BY INVITING SEMBLANCE OF COMPLIANCE WITHOUT ITS
SUBSTANCE, MOTION OF SETTLEMENT WITHOUT PROGRESS TOWARD IT.  IN RAILWAY
DISPUTES, THE FIRST SHORT STEP IN THE SUCCESSION PROVIDED BY THE
RAILWAY LABOR ACT COULD BE TAKEN AND THE REMAINDER THEN COULD BE
HURDLED BY INJUNCTION.  A PARTY ALWAYS COULD NEGOTIATE, THAT IS, ENGAGE
IN COLLECTIVE BARGAINING,  FN18  AND THEREBY BE RELIEVED OF THE
REQUIREMENTS, UNDER SEC. 8, OF MEDIATION AND ARBITRATION.  THUS, IN
THIS CASE, UNDER THE CONSTRUCTION OF THE COURT OF APPEALS, WHEN
RESPONDENT COMPLETED NEGOTIATIONS WITHOUT THE AID OF MEDIATION, THERE
WAS NO NEED TO GO ON WITH MEDIATION.  IN THE COURT'S VIEW COMPLIANCE
WITH ONE OF THE SPECIFIED METHODS SATISFIES THE FULL REQUIREMENTS OF
SEC. 8.  FN19  YET NEGOTIATION, IN THE SENSE OF BARGAINING
COLLECTIVELY, UNDER THE RAILWAY LABOR ACT IS AN OBLIGATION IMPOSED BY
LAW.  SECTION 2, NINTH; ALSO FIRST, SECOND; VIRGINIAN RY. CO. V. SYSTEM
FEDERATION, 300 U.S. 515, 548; CF. TEXAS & N.O.R. CO. V. BROTHERHOOD OF
CLERKS, 281 U.S. 548; GENERAL COMMITTEE OF ADJUSTMENT V. MISSOURI
KANSAS-TEXAS R. CO., 320 U.S. 323, 330-332.  OBVIOUSLY, IF THE VIEW OF
THE COURT OF APPEALS IS RIGHT, THE CONDITION REQUIRING "EVERY
REASONABLE EFFORT TO SETTLE" THE DISPUTE BECOMES A DEAD LETTER IN
RAILWAY LABOR DISPUTES, SINCE NO MORE WOULD BE REQUIRED BY ITS TERMS IN
THAT APPLICATION THAN IS CALLED FOR BY THE FIRST CONDITION WHICH
DEMANDS COMPLIANCE WITH LEGAL OBLIGATIONS.  RESPONDENT, HOWEVER, WHILE
APPARENTLY AGREEING WITH THE COURT OF APPEALS THAT COMPLIANCE WITH ONE
METHOD IS SUFFICIENT, RELIES NOT ONLY UPON ITS NEGOTIATION, BUT ALSO
UPON ITS PARTICIPATION IN MEDIATION.  THIS SERVES IT IN NO BETTER
STEAD.  THE SECTION IS NOT DISJUNCTIVE AS TO ARBITRATION, BUT
CONJUNCTIVE AS TO NEGOTIATION AND MEDIATION.  THE CASE IS ONE, SO FAR
AS BOTH LANGUAGE AND POLICY GO, OF ONE OR ALL.  FN20 

RESPONDENT'S FINAL CONTENTION, IN THIS PHASE OF THE CASE, IS THE MOST
INSISTENT.  IT IS THAT IF "VOLUNTARY ARBITRATION," AS THE TERM IS USED
IN SEC. 8, ENCOMPASSES ARBITRATION UNDER THE RAILWAY LABOR ACT, BY THAT
FACT THE ARBITRATION CEASES TO BE "VOLUNTARY" AND THE LATTER ACT'S
REQUIREMENT THAT IT BE SO IS VIOLATED.  IN SHORT, IT IS SAID THE EFFECT
IS TO FORCE RESPONDENT TO SUBMIT TO COMPULSORY ARBITRATION. 

WITHOUT QUESTION, AS RESPONDENT SAYS, ARBITRATION UNDER THE RAILWAY
LABOR ACT IS VOLUNTARY.  SECTION 7, FIRST, REQUIRES THE MACHINERY TO BE
PUT IN MOTION BY AGREEMENT OF THE PARTIES.  A PROVISO ALSO DECLARES,
"THAT THE FAILURE OR REFUSAL OF EITHER PARTY TO SUBMIT A CONTROVERSY TO
ARBITRATION SHALL NOT BE CONSTRUED AS A VIOLATION OF ANY LEGAL
OBLIGATION IMPOSED UPON SUCH PARTY BY THE TERMS OF THIS ACT OR
OTHERWISE."  45 U.S.C. SEC. 157, FIRST.  IT IS CLEAR, THEREFORE, THAT
THE RAILWAY LABOR ACT'S PURPOSE IS NOT TO IMPOSE UPON THE PARTIES A
LEGAL DUTY TO ARBITRATE, ENFORCEABLE AS IS THE DUTY TO BARGAIN
COLLECTIVELY IMPOSED BY SEC. 2, NINTH, DISCUSSED ABOVE.  AND IF THE
EFFECT OF BRINGING THAT FORM OF ARBITRATION WITHIN THE MANDATE OF SEC.
8 OF THE NORRIS-LAGUARDIA ACT WERE TO CREATE SUCH A DUTY, SO
ENFORCEABLE, RESPONDENT'S CONTENTION WOULD BE MORE IN POINT.  BUT IT
DOES NOT DO THAT.  AND THE CONTENTION THAT IT DOES ENTIRELY
MISCONCEIVES THE EFFECT OF SEC. 7, FIRST, OF THE RAILWAY LABOR ACT, AND
CONFUSES "VIOLATION" OF ITS TERMS WITH FAILURE TO COMPLY WITH THOSE OF
SEC. 8 OF THE NORRIS-LAGUARDIA ACT.  THE PROVISO OF SEC. 7, FIRST, AND
THE REQUIREMENT OF SUBMISSION BY AGREEMENT WERE IN FORCE SUBSTANTIALLY
IN THEIR PRESENT FORM UNDER THE RAILWAY LABOR ACT OF 1926.  44 STAT.
582.  IT WAS EXACTLY IN THE LIGHT OF THESE PROVISIONS AND WITH THE
INTENT, AS HAS BEEN SHOWN, TO MAKE IT INCLUDE ARBITRATION UNDER THE
RAILWAY LABOR ACT THAT SEC. 8 USED THE TERM "VOLUNTARY ARBITRATION." 
OBVIOUSLY THERE WAS NO PURPOSE IN DOING SO TO CONTRADICT THE TERMS OF
BOTH STATUTES AND LABEL "VOLUNTARY" WHAT IN FACT IS COMPULSORY.  NOR
WAS THIS THE EFFECT.  SECTION 7, FIRST, MERELY PROVIDES THAT FAILURE TO
ARBITRATE SHALL NOT BE CONSTRUED AS A VIOLATION OF ANY LEGAL OBLIGATION
IMPOSED UPON THE PARTY FAILING BY THAT ACT OR OTHERWISE.  RESPONDENT'S
FAILURE OR REFUSAL TO ARBITRATE HAS NOT VIOLATED ANY OBLIGATION IMPOSED
UPON IT, WHETHER BY THE RAILWAY LABOR ACT OR BY THE NORRIS-LAGUARDIA
ACT.  NO ONE HAS RECOURSE AGAINST IT BY ANY LEGAL MEANS ON ACCOUNT OF
THIS FAILURE.  RESPONDENT IS FREE TO ARBITRATE OR NOT, AS IT CHOOSES. 
BUT IF IT REFUSES, IT LOSES THE LEGAL RIGHT TO HAVE AN INJUNCTION
ISSUED BY A FEDERAL COURT OR, TO PUT THE MATTER MORE ACCURATELY, IT
FAILS TO PERFECT THE RIGHT TO SUCH RELIEF.  THIS IS NOT COMPULSORY
ARBITRATION.  IT IS COMPULSORY CHOICE BETWEEN THE RIGHT TO DECLINE
ARBITRATION AND THE RIGHT TO HAVE THE AID OF EQUITY IN A FEDERAL
COURT. 

TRUE, THIS DEPRIVES RESPONDENT OF A PROTECTION TO WHICH IT MIGHT HAVE
BEEN ENTITLED IF THE CONDITION HAD NOT BEEN IMPOSED.  BUT THAT IS TRUE
OF EACH OF THE SECTION'S CONDITIONS.  AND IT IS HARDLY MORE TRUE WITH
RESPECT TO ONE CONDITION THAN WITH RESPECT TO OTHERS.  MEDIATION, OR
FOR THAT MATTER NEGOTIATION, DOES NOT BECOME COMPULSORY BECAUSE WITHOUT
THEM OR EITHER OF THEM INJUNCTIVE RELIEF CANNOT BE HAD.  NEITHER DOES
ARBITRATION. 

NOR DOES IT FOLLOW, AS RESPONDENT SEEMS TO IMPLY, THAT IT IS LEFT
WITHOUT REMEDY.  OTHER MEANS OF PROTECTION REMAIN.  SUITS FOR RECOVERY
OF DAMAGES STILL MAY BE BROUGHT IN THE FEDERAL COURTS, WHEN FEDERAL
JURISDICTION IS SHOWN TO EXIST.  FEDERAL STATUTES SUPPLY CRIMINAL
SANCTIONS, ENFORCEABLE IN THE FEDERAL COURTS, AGAINST PERSONS WHO
INTERFERE IN SPECIFIED WAYS WITH THE OPERATION OF INTERSTATE TRAINS OR
DESTROY THE PROPERTY OF INTERSTATE RAILROADS.  CF. 18 U.S.C. SEC.
412(A).  WITH THESE AND OTHER REMEDIES THAT MAY BE AVAILABLE WE ARE
CONCERNED NO FURTHER THAN TO POINT OUT THAT RESPONDENT'S FAILURE TO
OBSERVE THE REQUIREMENTS OF SEC. 8 HAS NOT LEFT IT WITHOUT LEGAL
PROTECTION.  THAT FAILURE HAS DEPRIVED IT MERELY OF ONE FORM OF REMEDY
WHICH THE CONGRESS, EXERCISING ITS PLENARY CONTROL OVER THE
JURISDICTION OF THE FEDERAL COURTS,  FN21 HAS SEEN FIT TO WITHHOLD. 
WITH THE WISDOM OF THAT ACTION WE HAVE NO CONCERN.  IT IS ENOUGH, FOR
ITS ENFORCEMENT, THAT IT IS WRITTEN PLAIN AND DOES NOT TRANSCEND THE
LIMITS OF THE LEGISLATIVE POWER.  CF. LAUF V. SHINNER & CO., 303 U.S.
323. 

THE FACT IS THAT RESPONDENT COMPLIED WITH THE REQUIREMENTS OF BOTH
SEC. 8 AND THE RAILWAY LABOR ACT IN ALL BUT THE ONE ESSENTIAL RESPECT. 
IT RECOGNIZED THE EMPLOYEES' DESIGNATED REPRESENTATIVES, NEGOTIATED
WITH THEM, ENGAGED IN MEDIATION UNTIL IT WAS TERMINATED BY THE BOARD AS
THE STATUTE REQUIRED.  WHEN IT CAME, HOWEVER, TO THE FINAL AND CRUCIAL
STEP OF ARBITRATION, IT DECLINED TO GO FORWARD AS SEC. 8 REQUIRES IF,
LATER, INJUNCTIVE RELIEF IS TO BE HAD.  WHETHER THE REFUSAL WAS
MOTIVATED BY DISTRUST OF THE BOARD,  FN22  BY A DESIRE TO ESCAPE THE
BINDING EFFECT OF AN AWARD,  FN23  BY PREFERENCE FOR SOME OTHER
POSSIBLE PROCEDURE,  FN24  OR MERELY BY RESPONDENT'S MISTAKEN VIEW OF
THE SECTION'S REQUIREMENTS IS NOT MATERIAL.  ARBITRATION UNDER THE
RAILWAY LABOR ACT WAS AVAILABLE, AFFORDED A METHOD FOR SETTLEMENT
CONGRESS ITSELF HAS PROVIDED, AND UNTIL RESPONDENT ACCEPTED THIS METHOD
IT HAD NOT MADE "EVERY REASONABLE EFFORT TO SETTLE" THE DISPUTE, AS
SEC. 8 REQUIRES. 

IT REMAINS TO REFUTE A FURTHER BASIS FOR THE RULING OF THE COURT OF
APPEALS.  THIS WAS THAT, IN ACCORDANCE WITH ITS PREVIOUS DECISIONS,
SEC. 8 DOES NOT APPLY WHEN VIOLENCE IS INVOLVED.  THE TERMS OF THE
EXIST, TO FIND ONE IN THE CIRCUMSTANCES SHOWN BY THIS RECORD WOULD BE
TO INVERT THE STATUTORY ORDER OF THINGS.  THE PURPOSE OF THE SECTION IS
TO HEAD OFF STRIKES AND THE VIOLENCE WHICH TOO OFTEN ACCOMPANIES THEM,
BY REQUIRING THE STATUTORY STEPS TO BE TAKEN BEFORE THE AID OF FEDERAL
COURTS IS SOUGHT IN EQUITY.  DENIAL OF THAT ASSISTANCE IS THE SANCTION
THE STATUTE AFFORDS TO SECURE PERFORMANCE OF THE PRESCRIBED PREVENTIVE
MEASURES.  TO GIVE IT, WHEN THEY HAVE NOT BEEN TAKEN, NOT ONLY VIOLATES
THE SECTION'S TERMS.  IT DEFEATS THE PURPOSES THEY WERE TO ACCOMPLISH
AND WHICH, WHEN ACHIEVED, MAKE UNNECESSARY INVOCATION OF THE COURT'S
AID. 

IN GENERAL THE ACT WAS NOT INTENDED TO INTERFERE WITH THE POWER TO
RESTRAIN VIOLENT ACTS.  FN26 AND IT WAS CONTEMPLATED EXPRESSLY THE
COURT MIGHT INTERVENE TO PREVENT THEM, WHEN THE PARTICULAR
CIRCUMSTANCES SHOW THE COMPLAINANT HAS HAD NO OPPORTUNITY TO COMPLY
WITH SUCH REQUIREMENTS AS THOSE OF SEC. 8.  FN27  BUT ONE MAJOR PURPOSE
OF THE ACT WAS TO PREVENT THE USE OF INJUNCTION IMPROPERLY AS A
STRIKEBREAKING IMPLEMENT.  FN28  AND THE DISCUSSION OF SEC. 8 IN THE
CONGRESSIONAL DEBATES SHOWS THAT, WHILE IT WOULD NOT APPLY IF ON THE
FACTS THE COMPLAINANT COULD NOT MEET ITS TERMS, IT WAS INTENDED TO
APPLY WHEN HE HAD HAD AMPLE OPPORTUNITY BUT REFUSED TO DO SO.  FN29
THIS IS CLEAR NOT ONLY FROM REPRESENTATIVE O'CONNOR'S "CLEAN HANDS"
CHARACTERIZATION OF THE SECTION,  FN30  BUT ALSO FROM THE GENERAL
CHARACTER OF THE DISCUSSION REGARDING IT.  MOST, IF NOT ALL, OF THE
OBJECTION WAS UPON THE MISTAKEN VIEW THAT SEC. 8 WOULD APPLY EVEN
THOUGH THE COMPLAINANT MIGHT HAVE NO NOTICE OR KNOWLEDGE OF THE FACTS
CALLING FOR HIM TO TAKE THE CONCILIATORY STEPS BEFORE SEEKING
INJUNCTIVE RELIEF.  FN31  WHAT HAS BEEN SAID ABOVE SHOWS THIS WAS NOT
THE INTENT OR EFFECT OF THE SECTION.  THERE WAS INDEED NO EXPRESSION OF
CONCERN FOR THE COMPLAINANT WHO, HAVING FULL OPPORTUNITY TO COMPLY WITH
THE SECTION, MIGHT REFUSE DELIBERATELY AND STEADFASTLY TO DO SO.  ON
THE CONTRARY, IT APPEARS TO HAVE BEEN UNDERSTOOD CLEARLY HE WOULD BE
REMITTED TO OTHER FORMS OF RELIEF NOT TOUCHED BY THE ACT. 

IN VIEW OF THE DISPOSITION WE HAVE MADE OF THE CASE, WE HAVE NOT
DETERMINED THE OTHER ISSUES WHICH WERE PRESENTED.  SOME ARE OF SUCH
IMPORTANCE THEY SHOULD NOT BE DECIDED IN ADVANCE OF NECESSITY FOR
DETERMINING THEM.  THAT NECESSITY IS NOT PRESENT IN THIS CASE. 
ACCORDINGLY, WE EXPRESS NO OPINION CONCERNING THOSE ISSUES. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  PETITIONERS' BRIEF CHARACTERIZES THEIR ACTION AS AGREEMENT "TO
AN INDEFINITE POSTPONEMENT."  RESPONDENT SAYS "THE STRIKE NOTICE WAS AT
NO TIME WITHDRAWN, ALTHOUGH IT WAS TEMPORARILY WITHHELD" UNTIL DECEMBER
28. 

FN2  THE RECORD DOES NOT DISCLOSE THE EXACT TIME OR MANNER OF
PETITIONERS' AGREEMENT, BUT CLEARLY INDICATES IT WAS IN RESPONSE TO
THIS PROPOSAL OF THE BOARD, NOT THE LATER ONE OF DECEMBER 28, WHICH WAS
ADDRESSED SOLELY TO RESPONDENT AND RECITED THE EMPLOYEES' PREVIOUS
AGREEMENT. 

FN3  THERE WERE TWENTY-NINE OF THESE.  THE EMPLOYEES INVOLVED IN THE
DISPUTE NUMBERED ABOUT ONE HUNDRED. 

FN4  IT MAY BE ADDED TO THE BACKGROUND OF FACTS THAT, BETWEEN JANUARY
19, WHEN THE INJUNCTION ISSUED, AND THE TIME WHEN THE APPEAL WAS
PERFECTED, VARIOUS INDIVIDUAL DEFENDANTS, PETITIONERS HERE, WERE CITED
TO SHOW CAUSE WHY THEY SHOULD NOT BE PUNISHED FOR CONTEMPT FOR
VIOLATING THE INJUNCTION.  THE COURT ALSO ISSUED AN ORDER ON FEBRUARY 9
DIRECTING THE MARSHAL TO ENFORCE THE INJUNCTION BY PROPER MEANS,
INCLUDING THE EMPLOYMENT OF ADDITIONAL DEPUTIES IF NECESSARY.  THE
RECORD SHOWS THE CITATIONS WERE SET FOR HEARING BUT DOES NOT DISCLOSE
WHAT DISPOSITION WAS MADE OF THEM.  IT APPEARS, HOWEVER, FROM THE
BRIEFS THAT THE PERSONS CITED WERE CONVICTED AND SENTENCED FOR
VIOLATION OF THE INJUNCTION, SENTENCE LATER BEING SUSPENDED PENDING THE
FINAL DETERMINATION OF THIS CASE. 

FN5  IN THE LOWER COURTS AND HERE THIS ISSUE WAS HIGHLY
CONTROVERTED.  PETITIONERS SAY JURISDICTION IS LACKING SINCE THE CAUSE
OF ACTION IS ONE MERELY FOR EXERCISE OF THE GENERAL POLICE POWER IN THE
PROTECTION OF THE RAILROAD'S PROPERTY.  THE COMPLAINT, IT IS SAID, DOES
NOT SPECIFY ANY PROVISION OF FEDERAL LAW WHICH REQUIRES CONSTRUCTION OR
APPLICATION AND DOES NO MORE THAN AVER A GENERAL REFERENCE TO FEDERAL
STATUTES, INCLUDING THE INTERSTATE COMMERCE ACT AND THE STATUTE MAKING
CRIMINAL SPECIFIED INTERFERENCES WITH INTERSTATE RAILROAD PROPERTY.  18
U.S.C. SEC. 412(A); CF. COHENS V. VIRGINIA, 6 WHEAT.  264; NORTON V.
WHITESIDE, 239 U.S. 144; NILES-BEMENT-POND CO. V. IRON MOULDERS UNION,
254 U.S. 77; GULLY V. FIRST NATIONAL BANK, 299 U.S. 109. 

RESPONDENT AND THE LOWER COURTS FIND THE JURISDICTIONAL BASIS
GENERALLY IN THE DUTIES IMPOSED UPON CARRIERS BY THE INTERSTATE
COMMERCE ACT AND OTHER FEDERAL STATUTES, INCLUDING THE CRIMINAL STATUTE
REFERRED TO ABOVE.  THEY RELY UPON SUCH AUTHORITIES AS IN RE LENNON,
166 U.S. 548; TOLEDO, A.A. & N.M. RY. CO. V. PENNSYLVANIA CO., 54 F.
730(C.C.N.D. OHIO); AND WABASH R. CO. V. HANNAHAN, 121 F. 563(C.C.E.D.
MO.). 

FN6  CF. THE NORRIS-LAGUARDIA ACT, 29 U.S.C. SEC. 107(E), 47 STAT.
71. 

FN7  PETITIONERS ALSO URGE THAT THE TEMPORARY RESTRAINING ORDER
BECAME VOID ON THE EXPIRATION OF FIVE DAYS BY THE PROVISIONS OF 29
U.S.C. SEC. 107(E), AND COULD NOT BE EXTENDED BEYOND THAT TIME; HENCE
THE ORDERS CONTINUING IT IN FORCE WERE NULLITIES; AND THAT THE EVIDENCE
WAS INSUFFICIENT TO SHOW THEY HAD PARTICIPATED IN OR RATIFIED ANY ACT
OF VIOLENCE OR OF INTERFERENCE WITH RESPONDENT'S OPERATIONS OR
PROPERTY. 

FN8  CF. TEXT INFRA AT NOTE 21. 

FN9  CF. 45 U.S.C. SEC. 157, 44 STAT. 582-584, 48 STAT. 1197.  EACH
PARTY SELECTS AN EQUAL NUMBER OF ARBITRATORS WHO SELECT ANOTHER OR
OTHERS, BUT IN CASE OF FAILURE OF THE NAMED ARBITRATORS TO AGREE THE
MEDIATION BOARD SELECTS THE ADDITIONAL MEMBER OR MEMBERS. 

FN10  THE AWARD IS MADE FINAL AND CONCLUSIVE UPON THE PARTIES, EXCEPT
FOR POSSIBLE IMPEACHMENT OF THE JUDGMENT ENTERED UPON IT, IN JUDICIAL
PROCEEDINGS, ON GROUNDS SPECIFIED IN THE STATUTE.  45 U.S.C. SEC.
158(L), (M), (N), 44 STAT. 584-586, 48 STAT. 1197; SEC. 159, SECOND,
THIRD, 44 STAT. 585.    FN11  IT IS NOT NECESSARY TO DETERMINE WHETHER
THEY ARE ILLUSTRATIVE OR EXCLUSIVE.  RESPONDENT'S EMPHASIS UPON THE
DISJUNCTIVE MEANING OF "EITHER  ...  OR  ...  OR" EFFECTUALLY
ELIMINATES "EVERY" FROM THE SECTION.  IT DISTORTS "EVERY REASONABLE
EFFORT" INTO MEANING, IN EFFECT, "ONE OF THE FOLLOWING REASONABLE
EFFORTS."  A SIMILAR DISTORTION IS ITS APPARENT VIEW THAT THE PHRASE
"WITH THE AID OF ANY AVAILABLE GOVERNMENTAL MACHINERY" QUALIFIES ONLY
"MEDIATION" AND NOT "VOLUNTARY ARBITRATION."  CF. THE FURTHER
DISCUSSION IN THE TEXT, INFRA AT NOTE 20.  AND IF THE SECTION USES "OR"
ONLY IN THE DISJUNCTIVE, IT WOULD BE ENOUGH EITHER TO COMPLY WITH LEGAL
OBLIGATIONS OR TO MAKE REASONABLE EFFORT, A VIEW SO OBVIOUSLY UNTENABLE
IT HAS NOT BEEN SUGGESTED. 

FN12  THE NORRIS-LAGUARDIA ACT WAS ADOPTED MARCH 23, 1932.  47 STAT.
70.  AT THAT TIME THE RAILWAY LABOR ACT OF 1926 WAS IN FORCE.  44 STAT.
577.  THOUGH IT DIFFERED IN SUBSTANTIAL RESPECTS FROM THE RAILWAY LABOR
ACT OF 1934, NOW IN EFFECT (48 STAT. 1185), IT CONTAINED PROVISIONS FOR
THE THREE PROCEDURES OF NEGOTIATION, MEDIATION AND ARBITRATION WHICH,
FOR PRESENT PURPOSES, WERE IDENTICAL WITH OR SUBSTANTIALLY SIMILAR TO
THOSE OF THE LATER STATUTE.  THE 1934 CHANGES RELATED PRINCIPALLY TO
THE MACHINERY FOR MAKING THE PROCEDURES EFFECTIVE, THOUGH IN SOME
INSTANCES IT MORE DEFINITELY CRYSTALLIZED LEGAL OBLIGATIONS. 

FN13  MUCH OF THE DEBATE IN CONGRESS RELATED TO PREVIOUS RAILWAY
LABOR DISPUTES, INCLUDING THE PULLMAN CONTROVERSY OF 1894 AND THE
SHOPCRAFT STRIKE OF 1922, AND TO DECISIONS RELATING TO INJUNCTIONS
WHICH HAD BEEN ISSUED IN CONNECTION WITH THESE DISPUTES, E.G., IN RE
DEBS, 158 U.S. 564; CF. 75 CONG. REC. 4618-4620, 5472-5479, 5503-5504. 

FN14  CF. THE DEBATES IN CONGRESS, 75 CONG. REC. 4505-4510, 4618
4626, 5462-5515. 

FN15  CF. NOTES 13, 14 SUPRA. 

FN16  75 CONG. REC. 5504.  AND, AT 5508, IN RESPONSE TO AN INQUIRY
WHETHER OR NOT SEC. 8'S REQUIREMENTS WOULD APPLY WHERE IT MIGHT BE
IMPOSSIBLE TO MOVE FOR SETTLEMENT BY NEGOTIATION, MEDIATION OR
ARBITRATION, HE STATED: 

"THE ANSWER TO THAT IS SIMPLE.  IN SEEKING A RESTRAINING ORDER A
PARTY BELIEVED TO BE AGGRIEVED COMES INTO COURT AND UNDER A CERTAIN
STATE OF FACTS, WHICH ARE ENUMERATED IN THE BILL ITSELF, ASKS FOR A
RESTRAINING ORDER.  IF TIME HAS NOT PERMITTED HIM OR THE CORPORATION TO
AVAIL ITSELF OF THE EXISTING GOVERNMENTAL MACHINERY FOR THE SETTLEMENT
OF A LABOR DISPUTE, HE RECITES THAT AS ONE OF HIS FACTS, WHICH IS FULL
COMPLIANCE, OF COURSE, WITH THE PROVISIONS OF SECTION 8, WHICH MAKES IT
A CONDITION PRECEDENT THAT EVERY REMEDY MUST BE EXHAUSTED TO SETTLE THE
STRIKE BEFORE THE INJUNCTION WILL ISSUE." 

FN17  75 CONG. REC. 5464.  IT WAS PARTLY FOR FEAR OF THE EFFECTS OF
REQUIRING COMPLIANCE WITH SEC. 8'S PROVISIONS, UPON INTERRUPTION OF
SERVICE, THAT MR. BECK, WHO LED OPPOSITION TO THE BILL, URGENTLY
ADVOCATED AN AMENDMENT EXEMPTING PUBLIC UTILITIES.  75 CONG. REC. 5503
5504. 

FN18  IT MAY BE ASSUMED THAT THE NEGOTIATION MUST BE DONE IN GOOD
FAITH, AS IS TRUE UNDER THE NATIONAL LABOR RELATIONS ACT, CF. E.G.,
LABOR BOARD V. PILLING & SON CO., 119 F.2D 32(C.C.A.). 

FN19  "THE EMPLOYER IS NOT COMPELLED TO AVAIL HIMSELF OF ALL THREE
METHODS; ANY ONE OF THEM WILL FULFILL THE REQUIREMENTS.  THUS IN MAYO
V. DEAN, 82 F.2D 554, 556(C.C.A.)  IT WAS HELD THAT THE EMPLOYER IS NOT
OBLIGED TO PROPOSE BOTH MEDIATION AND ARBITRATION."  132 F.2D 265,
271. 

FN20  CF. NOTE 11 SUPRA. 

FN21  CF. LOCKERTY V. PHILLIPS, 319 U.S. 182, AND AUTHORITIES CITED. 

FN22  RESPONDENT'S BRIEF CONTAINS THE FOLLOWING: 

"  ...  RESPONDENT HAD REACHED THE POINT WHERE ITS ONLY RECOURSE WAS
TO REQUEST AN IMPARTIAL BODY, NAMELY:  AN EMERGENCY BOARD, TO HEAR THE
EVIDENCE AND DECIDE THE ISSUES INVOLVED. 

"THERE IS NO PRESUMPTION THAT THIS GOVERNMENTAL AGENCY WOULD BE FAIR,
JUST AND IMPARTIAL, IN THE CONDUCT OF THE ARBITRATION, AND WITH THE
EXPERIENCE WHICH THE RESPONDENT HAD HAD IN THE MEDIATION, IT COULD NOT
BE CHARGED WITH BAD FAITH IN REFUSING TO SIGN AN ARBITRATION AGREEMENT,
WHERE THE ARBITRATION PROCEEDINGS WERE TO BE CONDUCTED UNDER THE SAME
ATMOSPHERE. 

"RESPONDENT HAS ALWAYS INSISTED UPON A FAIR AND IMPARTIAL HEARING OF
THIS LABOR DISPUTE BEFORE A BODY WHICH HAS NO CONNECTION WITH EITHER
THE BROTHERHOOD INTERESTS OR THE RAILROAD INTERESTS, AND TO THIS DATE
IT HAS BEEN UNSUCCESSFUL TO HAVE ITS CASE PRESENTED TO A BODY OF THAT
CHARACTER." 

FN23  CF. NOTE 10 SUPRA; NOTE 24 INFRA. 

FN24  WHEN THE MEDIATION BOARD TERMINATED ITS SERVICES, RESPONDENT
FIRST SUGGESTED SUBMISSION TO "SOME IMPARTIAL FACT-FINDING COMMISSION,"
BUT FOR ADVISORY ACTION ONLY.  LATER IT REPEATEDLY URGED APPOINTMENT OF
AN EMERGENCY BOARD UNDER SEC. 10 OF THE RAILWAY LABOR ACT, 45 U.S.C.
SEC. 160, 44 STAT. 586-587, 48 STAT. 1197.  UNDER THE SECTION, IF A
DISPUTE NOT ADJUSTED THREATENS IN THE BOARD'S JUDGMENT SUBSTANTIALLY TO
INTERRUPT INTERSTATE COMMERCE, THE BOARD SHALL NOTIFY THE PRESIDENT
WHO, IN HIS DISCRETION, MAY CREATE A BOARD TO INVESTIGATE AND REPORT
CONCERNING THE DISPUTE. 

FN25  FRANKFURTER AND GREENE, THE LABOR INJUNCTION (1930) 215. 

FN26  CF. 75 CONG. REC. 5478. 

FN27  CF. NOTE 16 SUPRA; 75 CONG. REC. 5508. 

FN28  CF. 75 CONG. REC. 5478. 

FN29  CF. NOTE 16 SUPRA; 75 CONG. REC. 5508. 

FN30  CF. NOTE 17 SUPRA AND TEXT. 

FN31  CF. 75 CONG. REC. 4688, 5471, 5508, SETTING FORTH THE
OBJECTIONS OF OPPONENTS TO THE BILL, WITH THE REPLIES OF ITS SPONSORS
AT 4760, 5508. 
..END :







MCLEAN TRUCKING CO. V. U.S., 321 U.S. 67 


NO. 31.  ARGUED NOVEMBER 12, 15, 1943.  - DECIDED JANUARY 17, 1944.  -
48 F.SUPP.  933, AFFIRMED. 


1.  ORDERS OF THE INTERSTATE COMMERCE COMMISSION AUTHORIZING, UNDER
SEC. 5 OF THE INTERSTATE COMMERCE ACT AS AMENDED, THE CONSOLIDATION OF
CERTAIN MOTOR CARRIERS; AND, UNDER SEC. 214 OF THE MOTOR CARRIER ACT OF
1935, THE ISSUANCE OF SECURITIES BY THE CONSOLIDATED CORPORATION,
SUSTAINED AS WITHIN THE AUTHORITY OF THE COMMISSION AND SUPPORTED BY
THE FINDINGS AND THE EVIDENCE.  P. 88. 

2.  THE COMMISSION HAVING MODIFIED ITS ORDERS BY EXCLUDING ONE OF THE
CARRIERS FROM THE CONSOLIDATION, AND THE COURT BELOW HAVING DETERMINED
THE CASE IN THAT POSTURE, THE ONLY QUESTIONS HERE CONSIDERED ARE THOSE
PRESENTED BY THE MODIFIED ORDERS.  P. 70. 

3.  IN AUTHORIZING THE CONSOLIDATION, THE COMMISSION DID NOT APPLY
IMPROPER STANDARDS AND DID NOT FAIL TO GIVE DUE CONSIDERATION TO
ANTITRUST LAWS AND POLICIES.  P. 77. 

4.  THE AUTHORITY OF THE COMMISSION TO APPROVE CONSOLIDATIONS OF
MOTOR CARRIERS, WHICH BUT FOR THE EXEMPTION GRANTED BY SEC. 5(11) MIGHT
VIOLATE THE ANTITRUST LAWS, IS NOT RESTRICTED TO CONSOLIDATIONS WHICH
ARE NECESSARY IN ORDER TO PROVIDE ADEQUATE SERVICE TO THE PUBLIC.  P.
78. 

5.  IN DETERMINING THE PROPRIETY OF MOTOR CARRIER CONSOLIDATIONS, THE
PRESERVATION OF COMPETITION AMONG CARRIERS, ALTHOUGH STILL A FACTOR, IS
SIGNIFICANT CHIEFLY TO THE EXTENT THAT IT AIDS IN ACHIEVING THE
OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY.  P. 85. 

6.  THE COMMISSION'S CONCLUSION THAT THE PROPOSED CONSOLIDATION WAS
"CONSISTENT WITH THE PUBLIC INTEREST" DID NOT GO BEYOND THE STANDARDS
PRESCRIBED BY CONGRESS.  P. 89. 

7.  ALTHOUGH THE COMMISSION SHOULD HAVE ACCEDED TO THE ANTI-TRUST
DIVISION'S REQUEST FOR CERTAIN INFORMATION FROM OTHERS BEARING ON THE
QUESTION OF COMPETITION, ITS FAILURE SO TO DO DOES NOT ON THE RECORD
HERE REQUIRE THAT ITS CONCLUSIONS BE SET ASIDE.  P. 89. 

8.  THE COMMISSION'S CONCLUSION THAT THE CONSOLIDATED CORPORATION
WOULD NOT BE "AFFILIATED" WITH A RAIL CARRIER, WITHIN THE MEANING OF
SECS. 5(2) AND 5(6) OF THE ACT, WAS SUPPORTED BY THE FINDINGS AND THE
EVIDENCE.  P. 91. 

9.  ONLY THE CONSOLIDATION AS APPROVED IS RELIEVED FROM THE OPERATION
OF THE ANTITRUST LAWS; AND ANY CHANGE IN THE STATUS QUO MAY BE
CONSIDERED WHEN SUCH CHANGE OCCURS.  P. 91. 

MCLEAN TRUCKING CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, REFUSING TO
SET ASIDE ORDERS OF THE INTERSTATE COMMERCE COMMISSION, 38 M.C.C. 137. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A DECREE OF A STATUTORY THREE JUDGE COURT,
FN1  48 F.SUPP.  933, REFUSING TO SET ASIDE CERTAIN ORDERS OF THE
INTERSTATE COMMERCE COMMISSION WHICH HAD AUTHORIZED CONSOLIDATION OF
SEVEN LARGE MOTOR CARRIERS. 

ASSOCIATED TRANSPORT, INC., WAS ORGANIZED IN DELAWARE IN MARCH, 1941,
TO BRING ABOUT THE PROPOSED MERGER.  IN JULY, 1941, IT APPLIED TO THE
INTERSTATE COMMERCE COMMISSION FOR PERMISSION, UNDER SEC. 5 OF THE
INTERSTATE COMMERCE ACT, AS AMENDED (49 U.S.C. SEC. 5; 54 STAT. 898,
905), TO OBTAIN CONTROL OF EIGHT MOTOR CARRIERS, THROUGH PURCHASE OF
THEIR CAPITAL STOCK, AND TO CONSOLIDATE THEIR OPERATING RIGHTS AND
PROPERTIES INTO ONE UNIT WITHIN A YEAR FROM THE DATE IT ACQUIRED STOCK
CONTROL.  AT THE SAME TIME, ASSOCIATED APPLIED FOR PERMISSION UNDER
SEC. 214 OF THE MOTOR CARRIER ACT OF 1935(49 U.S.C. SEC. 314; 49 STAT.
543, 557, 52 STAT. 1240, 54 STAT. 924) TO ISSUE PREFERRED AND COMMON
STOCK TO BE USED MAINLY IN EXCHANGE FOR STOCKS OF THE EIGHT COMMON
CARRIERS AND FOUR ASSOCIATED NONCARRIERS. 

BEFORE THE COMMISSION, APPROVAL OF THE APPLICATIONS WAS OPPOSED BY
THE SECRETARY OF AGRICULTURE, THE ANTI-TRUST DIVISION OF THE DEPARTMENT
OF JUSTICE, THE NATIONAL GRANGE, FOUR FRUIT GROWERS ASSOCIATIONS AND
SUPER SERVICE MOTOR FREIGHT COMPANY, A MOTOR CARRIER.  FN2  AN EXAMINER
HELD HEARINGS AT WHICH EVIDENCE WAS INTRODUCED, AND THE COMMISSION
HEARD ARGUMENT ON OBJECTIONS TO HIS REPORT BEFORE FINALLY AUTHORIZING
THE CONSOLIDATION.  FN3  38 M.C.C. 137.  MCLEAN TRUCKING COMPANY, INC.,
A MOTOR CARRIER WHICH CLAIMS TO COMPETE WITH SOME OF THE CARRIERS
INCLUDED IN THE MERGER, BROUGHT SUIT IN THE DISTRICT COURT TO SET ASIDE
THE COMMISSION'S ORDERS.  THE SECRETARY OF AGRICULTURE AND THE AMERICAN
FARM BUREAU FEDERATION INTERVENED AS PLAINTIFFS.  THE UNITED STATES
CONFESSED ERROR.  THE INTERSTATE COMMERCE COMMISSION AND THE PARTIES TO
THE MERGER DEFENDED THE COMMISSION'S ORDER. 

THE PRINCIPAL ISSUES, LATER SET FORTH WITH PARTICULARITY, ARE
INTERTWINED.  THEY RELATE TO WHETHER THE COMMISSION APPLIED A PROPER
STANDARD IN CONCLUDING TO APPROVE THE MERGER; WHETHER IT FAILED TO GIVE
DUE WEIGHT TO THE PROHIBITIONS AND POLICIES OF THE ANTI-TRUST LAWS; AND
WHETHER, UPON THE EVIDENCE AND WITHIN THE MEANING OF SEC. 5(2)(B) OF
THE INTERSTATE COMMERCE ACT, THE COMMISSION RIGHTLY COULD DETERMINE
THAT ASSOCIATED, UPON CONSUMMATION OF THE MERGER, WOULD NOT BE
AFFILIATED WITH ANY RAILROAD.  THE COMMISSION RESOLVED ALL OF THESE
QUESTIONS IN FAVOR OF THE MERGER, AS DID THE DISTRICT COURT. 

IN ONE RESPECT, HOWEVER, THE CASE AS PRESENTED TO THE COURT WAS IN
DIFFERENT POSTURE THAN AS IT CAME TO THE COMMISSION.  THIS CHANGE AROSE
FROM THE ELIMINATION OF ONE OF THE CONSTITUENT COMPANIES, ARROW CARRIER
CORPORATION, FROM THE MERGER BETWEEN THE TIME THE COMMISSION'S ORDERS
WERE RENDERED AND THE HEARING IN THE DISTRICT COURT.  AFTER THE SUIT
WAS BEGUN THE COMMISSION, ON THE APPLICANT'S PETITION, MODIFIED ITS
ORDERS TO EXCLUDE ARROW.  ACCORDINGLY THE COMMISSION ALSO AMENDED ITS
ANSWER TO INDICATE THE CHANGE, AND THE CASE WAS DECIDED ON THE ORDERS
AS MODIFIED.  THEY PRESENT THE ONLY QUESTIONS FOR OUR CONSIDERATION. 
IT MAY BE NOTED THAT THE ELIMINATION OF ARROW HAS BEARING UPON THE
ISSUE RELATING TO ANTI-TRUST POLICY, BUT MORE PARTICULARLY ON THAT
RELATING TO RAILROAD AFFILIATION. 

THE EIGHT CARRIERS ORIGINALLY SOUGHT TO BE MERGED  FN4  WERE ARROW
CARRIER CORPORATION, PATERSON, N.J.; BARNWELL BROTHERS, INC.,
BURLINGTON, N.C.; CONSOLIDATED MOTOR LINES, INC., HARTFORD, CONN.;
HORTON MOTOR LINES, INC., CHARLOTTE, N.C.; MCCARTHY FREIGHT SYSTEM,
INC., TAUNTON, MASS.; M. MORAN TRANSPORTATION LINES, INC., BUFFALO,
N.Y.; SOUTHEASTERN MOTOR LINES, INC., BRISTOL VA.; AND TRANSPORTATION,
INC., ATLANTA, GA.  THE MERGER EMBRACES SOME OF THE PRINCIPAL OPERATORS
ALONG THE ATLANTIC SEABOARD FROM MASSACHUSETTS TO FLORIDA.  CERTAIN OF
THEM SERVE COMMUNITIES AS FAR WEST AS CLEVELAND, OHIO, NASHVILLE,
TENNESSEE, AND NEW ORLEANS, LOUISIANA.  BUT THE MOST IMPORTANT EFFECT
WILL BE TO CREATE AN END-TO-END CONSOLIDATION FROM POINTS IN THE FAR
SOUTH TO NEW ENGLAND, WITH OBVIOUSLY LARGE POSSIBILITIES FOR THROUGH
SERVICE.  ACCORDING TO EVIDENCE BEFORE THE COMMISSION THE TOTAL ASSETS
OF THE COMPANIES INVOLVED, AS OF APRIL 30, 1941, EXCEED $8,000,000 AND
THEIR GROSS OPERATING REVENUES FOR 1940 EXCEEDED $19,000,000.  THE
CARRIERS OPERATE PRINCIPALLY AS MOTOR VEHICLE COMMON CARRIERS OF
GENERAL COMMODITIES OVER REGULAR ROUTES TOTALLING 37,884 MILES.  OVER
13,546 MILES BETWEEN IMPORTANT SERVICE POINTS ONE OR MORE COMPETES WITH
OTHERS IN THE GROUP.  FN5  THIS COMPETITIVE MILEAGE WILL BE ELIMINATED
BY THE MERGER, LEAVING A SINGLE CARRIER WITH ROUTES EXTENDING OVER
24,338 MILES. 

AS A RESULT OF THE PROPOSED MERGER ASSOCIATED WILL BE THE LARGEST
SINGLE MOTOR CARRIER IN THE UNITED STATES - AT LEAST IN TERMS OF ITS
ESTIMATED REVENUES - AND NO OTHER SINGLE MOTOR CARRIER WILL COMPETE
WITH IT THROUGHOUT ITS SERVICE AREA.  NEVERTHELESS, AFTER CAREFUL
CONSIDERATION AND ON EVIDENCE CLEARLY SUFFICIENT TO SUSTAIN IT, THE
COMMISSION FOUND THAT ON COMPLETION OF THE MERGER "THERE WOULD REMAIN
AMPLE COMPETITIVE MOTOR-CARRIER SERVICE THROUGHOUT THE TERRITORY
INVOLVED" AND IN ADDITION THAT ONE OR MORE RAIL CARRIERS WOULD OFFER
SUBSTANTIAL COMPETITION TO ASSOCIATED AT ALL PRINCIPAL POINTS.  IT ALSO
FOUND THAT THE CONSOLIDATION WOULD RESULT IN IMPROVED TRANSPORTATION
SERVICE.  THROUGH MOVEMENT OF FREIGHT WOULD BE SIMPLIFIED AND
EXPEDITED, EQUIPMENT WOULD BE UTILIZED MORE EFFICIENTLY, TERMINAL
FACILITIES IMPROVED, HANDLING OF SHIPMENTS REDUCED, RELATIONS WITH
SHIPPERS AND PUBLIC REGULATORY BODIES SIMPLIFIED, SAFE OPERATION
PROMOTED, AND SUBSTANTIAL OPERATING ECONOMIES WOULD BE ACHIEVED.  THE
COMMISSION CONCLUDED THAT THE APPLICANT'S ASSUMPTION OF THE FIXED
CHARGES OF THE CARRIERS WOULD NOT BE INCONSISTENT WITH THE PUBLIC
INTEREST, AND CONSUMMATION OF THE PROPOSED TRANSACTION WOULD NOT RESULT
IN SUBSTANTIAL INJURY TO THE CARRIER EMPLOYEES AFFECTED. 

IN CONNECTION WITH ARROW'S PARTICIPATION, THE COMMISSION FOUND THAT
THE TRANSPORT COMPANY, WHOSE STOCK WAS WHOLLY OWNED BY KUHN, LOEB AND
COMPANY, HAD AN OPTION TO PURCHASE ARROW'S COMMON STOCK AND WOULD
RECEIVE ASSOCIATED'S STOCK THEREFOR WHEN THE MERGER WAS EFFECTED.  THE
STOCK THUS RECEIVED, TOGETHER WITH 9,000 SHARES OF ASSOCIATED'S COMMON
STOCK ALREADY HELD, WOULD GIVE THE TRANSPORT COMPANY, AND THROUGH IT
KUHN, LOEB AND COMPANY, 6,877 SHARES OF ASSOCIATED'S PREFERRED AND
67,167 OF ASSOCIATED'S COMMON, A TOTAL OF 13 PER CENT AND 9.53 PER
CENT, RESPECTIVELY, OF THE PREFERRED AND COMMON STOCKS EXPECTED TO BE
OUTSTANDING AT THE CONCLUSION OF THE TRANSACTIONS.  FN6 KUHN, LOEB AND
COMPANY IS REPRESENTED ON THE BOARDS OF DIRECTORS OF SEVERAL RAILROADS
AND FOR YEARS HAS HAD INVESTMENT BANKING CONNECTIONS WITH THE BALTIMORE
AND OHIO AND THE PENNSYLVANIA RAILROADS, EACH OPERATING IN TERRITORY TO
BE SERVED BY ASSOCIATED.  A REPRESENTATIVE OF KUHN, LOEB AND COMPANY
WOULD BE ONE OF ASSOCIATED'S NINE DIRECTORS.  AFTER EXAMINING THE
BLOCKS OF STOCK WHICH OTHER PERSONS WOULD HOLD ON COMPLETION OF THE
CONSOLIDATION AND OTHER MATTERS BEARING ON THE RELATIONSHIP BETWEEN THE
PROPOSED MERGER AND THE RAILROADS, THE COMMISSION CONCLUDED THAT
ASSOCIATED WOULD NOT BE AFFILIATED WITH ANY RAIL CARRIERS.  WITH THE
ELIMINATION OF ARROW, OF COURSE, THE LIKELIHOOD OF ANY INFLUENCE ON
ASSOCIATED'S POLICIES BY TRANSPORT, AND THUS BY KUHN, LOEB AND COMPANY
AND THE RAILROADS, WAS SUBSTANTIALLY REDUCED. 

                     I. 

THE PERTINENT PROVISIONS OF THE INTERSTATE COMMERCE ACT, WHICH IS
CONTROLLING, ARE SET FORTH IN THE MARGIN.  FN7  SECTION 5(2) MAKES
LAWFUL A CONSOLIDATION OF THE SORT HERE ATTEMPTED ONLY IF THE
COMMISSION AUTHORIZES IT.  THE COMMISSION IS EMPOWERED TO AUTHORIZE AND
APPROVE A CONSOLIDATION EITHER AS APPLIED FOR OR AS QUALIFIED BY SUCH
TERMS AND CONDITIONS AS IT DEEMS "JUST AND REASONABLE," IF IT FINDS
THAT THE MERGER "WILL BE CONSISTENT WITH THE PUBLIC INTEREST."  SEC.
5(2)(B).  IN PASSING UPON A PROPOSED CONSOLIDATION THE COMMISSION IS
REQUIRED TO "GIVE WEIGHT TO THE FOLLOWING CONSIDERATIONS, AMONG OTHERS:
(1) THE EFFECT OF THE PROPOSED TRANSACTION UPON ADEQUATE
TRANSPORTATION SERVICE TO THE PUBLIC; ...  (3) THE TOTAL FIXED CHARGES
RESULTING FROM THE PROPOSED TRANSACTION; AND (4) THE INTEREST OF THE
CARRIER EMPLOYEES AFFECTED."  SEC. 5(2)(C).  THE FOREGOING PROVISIONS
SUPPLY THE GENERAL STATUTORY STANDARDS FOR GUIDING THE COMMISSION'S
JUDGMENT; AND WITHIN THEIR BROAD LIMITS, ITS AUTHORITY IS "EXCLUSIVE
AND PLENARY."  SEC. 5(11). 

HOWEVER, IN TWO PARTICULARS, PERTINENT ESPECIALLY TO THE ISSUES
CONCERNING ANTI-TRUST POLICY AND RAILROAD AFFILIATION, SEC. 5 LAYS DOWN
MORE EXPLICIT COMMANDS.  ONE IS A SPECIFIC EXEMPTION OF CARRIERS AND
INDIVIDUALS PARTICIPATING IN AN APPROVED MERGER "FROM THE OPERATION OF
THE ANTITRUST LAWS AND OF ALL OTHER RESTRAINTS, LIMITATIONS, AND
PROHIBITIONS OF LAW, FEDERAL, STATE, OR MUNICIPAL, INSOFAR AS MAY BE
NECESSARY TO ENABLE THEM TO CARRY INTO EFFECT THE TRANSACTIONS SO
APPROVED  ...  AND TO HOLD, MAINTAIN, AND OPERATE ANY PROPERTIES AND
EXERCISE ANY CONTROL OR FRANCHISES ACQUIRED THROUGH SUCH TRANSACTION." 
SEC. 5(11).  THE OTHER PROVIDES THE STANDARDS TO BE APPLIED IN CASES OF
AFFILIATION OF A MOTOR CARRIER WITH A RAILROAD.  WHERE A RAILROAD OR
"ANY PERSON WHICH IS CONTROLLED BY SUCH A CARRIER, OR AFFILIATED
THEREWITH"  FN8  IS AN APPLICANT IN A CONSOLIDATION PROCEEDING, THE
COMMISSION CANNOT APPROVE THE MERGER "UNLESS IT FINDS THAT THE
TRANSACTION PROPOSED WILL BE CONSISTENT WITH THE PUBLIC INTEREST AND
WILL ENABLE SUCH CARRIER TO USE SERVICE BY MOTOR VEHICLE TO PUBLIC
ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN COMPETITION." 
SEC. 5(2)(B).  IN THE LIGHT OF THESE CONTROLLING STATUTORY PROVISIONS
THE ISSUES MUST BE STATED MORE SHARPLY FOR PROPER PERSPECTIVE OF WHAT
IS AT STAKE. 

                                 II. 

AS HAS BEEN SAID, THEY ARE INTERTWINED.  THIS IS TRUE ESPECIALLY OF
THE ISSUES CONCERNING THE PROPRIETY OF THE STANDARDS APPLIED AND
WHETHER DUE CONSIDERATION WAS GIVEN TO THE ANTI-TRUST LAWS AND
POLICIES, ALTHOUGH THE QUESTION OF RAIL AFFILIATION IS CLOSELY RELATED
TO BOTH. 

THE CHIEF ATTACK ON THE ORDERS IS THAT THE COMMISSION IMPROPERLY
CONSTRUED THE STANDARDS BY WHICH CONGRESS INTENDED IT TO DETERMINE THE
PROPRIETY OF A CONSOLIDATION; AND THE BURDEN OF THIS COMPLAINT IS THAT
IT DID SO "BY FAILING TO CONSIDER AND GIVE DUE WEIGHT TO THE ANTI-TRUST
AND OTHER LAWS OF THE UNITED STATES."  THE ARGUMENT SEEMS TO BE THAT
THE MERGER, NOTWITHSTANDING THE COMMISSION'S APPROVAL, VIOLATES THE
SHERMAN ACT; HENCE THE COMMISSION IS WITHOUT POWER TO APPROVE THE
MERGER.  THIS PRESUPPOSES THAT CONGRESS DID NOT INTEND, BY ENACTING THE
SPECIFIC EXEMPTION OF SEC. 5(11), TO GIVE THE COMMISSION LEEWAY TO
APPROVE ANY MERGER WHICH, BUT FOR THE EXEMPTION AND THE COMMISSION'S
APPROVAL, WOULD RUN AFOUL OF THE ANTI-TRUST LAWS.  IN OTHER WORDS, THE
COMMISSION'S AUTHORITY IS NOT "EXCLUSIVE AND PLENARY," AS THE SECTION
DECLARES, WITHIN THE BOUNDARIES SET BY THE INTERSTATE COMMERCE ACT,
INCLUDING THE EXEMPTION; BUT IT IS RESTRICTED ALSO BY ALL THE
RAMIFICATIONS OF THE ANTI-TRUST LAWS AND POLICIES, TO WHICH THE
COMMISSION MUST GIVE STRICT REGARD IN APPROVING MOTOR CONSOLIDATIONS,
AS IF THE EXEMPTION DID NOT EXIST. 

IT IS CONCEDED THIS IS NOT TRUE OF RAIL CONSOLIDATIONS, THOUGH THEY
ARE AUTHORIZED, AND SUBJECTED TO THE SAME STANDARDS, BY THE IDENTICAL
IS SAID TO ARISE FROM THE DIFFERENCE WHICH EXISTED IN THE CONDITIONS
UNDER WHICH RAIL AND MOTOR CARRIERS, RESPECTIVELY, WERE BROUGHT WITHIN
THE PURVIEW OF THE STATUTORY COMMANDS.  THUS, IT IS SAID, THE
TRANSPORTATION ACT OF 1920(41 STAT. 456) MADE A BROAD DEPARTURE FROM
PREVIOUS POLICY BY RELIEVING RAIL CONSOLIDATIONS, WITH THE COMMISSION'S
APPROVAL, FROM ANTI-TRUST RESTRICTIONS IN ORDER TO REHABILITATE A
BROKENDOWN INDUSTRY.  BUT, IT IS ALSO SAID, SUCH A CONDITION DID NOT
CHARACTERIZE MOTOR CARRIERS WHEN THEY WERE BROUGHT UNDER REGULATION IN
1935 OR AT THE TIME OF ANY SUBSEQUENT LEGISLATION AFFECTING THEM. 
HENCE, IT IS ADMITTED THE COMMISSION WITH PROPRIETY MAY APPROVE A RAIL
CONSOLIDATION, OTHERWISE PROHIBITED BY THE ANTI-TRUST LAWS, IN ORDER TO
BRING ABOUT NEEDED OR DESIRABLE IMPROVEMENT IN SERVICE AND ECONOMIES IN
OPERATION.  BUT, AS TO MOTOR CARRIERS, IT IS URGED THE CONSOLIDATION
CANNOT BE EFFECTED WITH ANY SUCH PURPOSES OR CONSEQUENCES.  ONLY WHEN
THE EXISTING SERVICE IS INADEQUATE AND CONSOLIDATION IS NECESSARY TO
BRING ABOUT ADEQUATE SERVICE TO THE PUBLIC, THE ARGUMENT RUNS, CAN THE
COMMISSION APPROVE IT.    ON ITS FACE THE CONTENTION WOULD SEEM TO RUN
IN THE OF THE LANGUAGE AND THE PURPOSE OF SEC. 5(11).  NOTHING IN ITS
TERMS INDICATES AN INTENTION TO CREATE ONE AUTHORITY FOR RAIL
CONSOLIDATIONS AND ANOTHER FOR MOTOR MERGERS.  IDENTICAL PROVISIONS
GOVERN BOTH.  AND TO RESTRICT THE APPLICATION OF THE SECTION TO MOTOR
CARRIERS IN THE MANNER URGED WOULD NULLIFY ITS OPERATION AS TO THEM. 
THE ATTACK, WHEN CARRIED TO SUCH AN EXTENT, COMES DOWN TO ONE UPON THE
POLICY WHICH CONGRESS HAS DECLARED.  IT HAS DONE SO IN TERMS WHICH DO
NOT ADMIT OF NULLIFICATION BY REFERENCE TO THE VARYING CONDITIONS UNDER
WHICH DIFFERENT TYPES OF CARRIERS WERE BROUGHT WITHIN THE STATUTE'S
OPERATION.  IT IS NOT FOR THIS COURT, OR ANY OTHER, TO OVERRIDE A
POLICY, OR AN EXEMPTION FROM ONE, SO CLEARLY AND SPECIFICALLY DECLARED
BY CONGRESS, WHATEVER MAY BE OUR VIEWS OF THE WISDOM OF ITS ACTION. 
THE ARGUMENT IN ITS FULL SWEEP THEREFORE MUST BE REJECTED.  BUT, TAKEN
FOR LESS THAN THAT, IT POSES A PROBLEM OF ACCOMMODATION OF THE
TRANSPORTATION ACT AND THE ANTI-TRUST LEGISLATION, TO WHICH WE NOW
TURN.  IN DOING SO WE NOTE THAT THE FORMER IS THE LATER IN TIME AND
CONSTITUTES NOT ONLY A MORE RECENT BUT A MORE SPECIFIC EXPRESSION OF
POLICY. 

                                 III. 

TO SECURE THE CONTINUOUS, CLOSE AND INFORMED SUPERVISION WHICH
ENFORCEMENT OF LEGISLATIVE MANDATES FREQUENTLY REQUIRES, CONGRESS HAS
VESTED EXPERT ADMINISTRATIVE BODIES SUCH AS THE INTERSTATE COMMERCE
COMMISSION WITH BROAD DISCRETION AND HAS CHARGED THEM WITH THE DUTY TO
EXECUTE STATED AND SPECIFIC STATUTORY POLICIES.  THAT DELEGATION DOES
NOT NECESSARILY INCLUDE EITHER THE DUTY OR THE AUTHORITY TO EXECUTE
NUMEROUS OTHER LAWS.  THUS, HERE, THE COMMISSION HAS NO POWER TO
ENFORCE THE SHERMAN ACT AS SUCH.  IT CANNOT DECIDE DEFINITIVELY WHETHER
THE TRANSACTION CONTEMPLATED CONSTITUTES A RESTRAINT OF TRADE OR AN
ATTEMPT TO MONOPOLIZE WHICH IS FORBIDDEN BY THAT ACT.  THE COMMISSION'S
TASK IS TO ENFORCE THE INTERSTATE COMMERCE ACT AND OTHER LEGISLATION
WHICH DEALS SPECIFICALLY WITH TRANSPORTATION FACILITIES AND PROBLEMS. 
THAT LEGISLATION CONSTITUTES THE IMMEDIATE FRAME OF REFERENCE WITHIN
WHICH THE COMMISSION OPERATES; AND THE POLICIES EXPRESSED IN IT MUST BE
THE BASIC DETERMINANTS OF ITS ACTION. 

BUT IN EXECUTING THOSE POLICIES THE COMMISSION MAY BE FACED WITH
OVERLAPPING AND AT TIMES INCONSISTENT POLICIES EMBODIED IN OTHER
LEGISLATION ENACTED AT DIFFERENT TIMES AND WITH DIFFERENT PROBLEMS IN
VIEW.  WHEN THIS IS TRUE, IT CANNOT, WITHOUT MORE, IGNORE THE LATTER. 
THE PRECISE ADJUSTMENTS WHICH IT MUST MAKE, HOWEVER, WILL VARY FROM
INSTANCE TO INSTANCE DEPENDING ON THE EXTENT TO WHICH CONGRESS
INDICATES A DESIRE TO HAVE THOSE POLICIES LEAVENED OR IMPLEMENTED IN
THE ENFORCEMENT OF THE VARIOUS SPECIFIC PROVISIONS OF THE LEGISLATION
WITH WHICH THE COMMISSION IS PRIMARILY AND DIRECTLY CONCERNED.  CF.
NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190; NEW YORK
CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12. 

THE NATIONAL TRANSPORTATION POLICY IS THE PRODUCT OF A LONG HISTORY
OF TRIAL AND ERROR BY CONGRESS IN ATTEMPTING TO REGULATE THE NATION'S
TRANSPORTATION FACILITIES BEGINNING WITH THE INTERSTATE COMMERCE ACT OF
1887.  FN9  FOR PRESENT PURPOSES IT IS NOT NECESSARY TO TRACE THE
HISTORY OF THOSE ATTEMPTS IN DETAIL OTHER THAN TO NOTE THAT THE
TRANSPORTATION ACT OF 1920 MARKED A SHARP CHANGE IN THE POLICIES AND
OBJECTIVES EMBODIED IN THOSE EFFORTS.  FN10  "THERETOFORE, THE EFFORT
OF CONGRESS HAD BEEN DIRECTED MAINLY TO THE PREVENTION OF ABUSES;
PARTICULARLY, THOSE ARISING FROM EXCESSIVE OR DISCRIMINATORY RATES";
FN11  AND EMPHASIS ON THE PRESERVATION OF FREE COMPETITION AMONG
CARRIERS WAS PART OF THAT EFFORT.  FN12  THE ACT OF 1920 ADDED "A NEW
AND IMPORTANT OBJECT TO PREVIOUS INTERSTATE COMMERCE LEGISLATION."  IT
SOUGHT "AFFIRMATIVELY TO BUILD UP A SYSTEM OF RAILWAYS PREPARED TO
HANDLE PROMPTLY ALL THE INTERSTATE TRAFFIC OF THE COUNTRY."  DAYTON
GOOSE CREEK RY. CO. V. UNITED STATES, 263 U.S. 456, 478; TEXAS &
PACIFIC RY. CO. V. GULF, C. & S.F. RY. CO., 270 U.S. 266, 277.  AND IN
ADMINISTERING IT, THE COMMISSION WAS TO BE GUIDED PRIMARILY BY
CONSIDERATION FOR "ADEQUACY OF TRANSPORTATION SERVICE,  ...  ITS
ESSENTIAL CONDITIONS OF ECONOMY AND EFFICIENCY, AND  ...  APPROPRIATE
PROVISION AND BEST USE OF TRANSPORTATION FACILITIES.  ...  "  NEW YORK
CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12, 25. 

SINCE THAT INITIAL EFFORT AT RESHAPING REGULATION OF RAILROADS TO
"ENSURE  ...  ADEQUATE TRANSPORTATION SERVICE,"  FN13  CONGRESS HAS
EXTENDED FEDERAL REGULATION IN CONNECTION WITH OTHER FORMS OF
TRANSPORTATION  FN14  AND HAS ELABORATED MORE FULLY THE OBJECTIVES TO
BE ACHIEVED BY ITS LEGISLATION.  IN 1935 IT ENACTED A COMPREHENSIVE
SCHEME OF REGULATION FOR MOTOR CARRIERS, DESIGNED TO RESULT IN "A
SYSTEM OF COORDINATED TRANSPORTATION FOR THE NATION WHICH WILL SUPPLY
THE MOST EFFICIENT MEANS OF TRANSPORT AND FURNISH SERVICE AS CHEAPLY AS
IS CONSISTENT WITH FAIR TREATMENT OF LABOR AND WITH EARNINGS WHICH WILL
SUPPORT ADEQUATE CREDIT AND THE ABILITY TO EXPAND AS NEED DEVELOPS AND
TO TAKE ADVANTAGE OF ALL IMPROVEMENTS IN THE ART."  FN15  THE POLICY
WHICH WAS TO GUIDE THE COMMISSION IN ADMINISTERING THAT ACT WAS FULLY
STATED  FN16  AND HAS SINCE BEEN ABSORBED INTO THE EQUALLY FULL
STATEMENT OF THE NATIONAL TRANSPORTATION POLICY.  THAT POLICY, WHICH IS
THE COMMISSION'S GUIDE TO "THE PUBLIC INTEREST," CF. NEW YORK CENTRAL
SECURITIES CORP. V. UNITED STATES, 287 U.S. 12; TEXAS V. UNITED STATES,
292 U.S. 522, DEMANDS THAT ALL MODES OF TRANSPORTATION SUBJECT TO THE
PROVISIONS OF THE INTERSTATE COMMERCE ACT BE SO REGULATED AS TO
"RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF EACH; TO PROMOTE
SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND FOSTER SOUND
ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL CARRIERS;
TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF REASONABLE CHARGES
FOR TRANSPORTATION SERVICES, WITHOUT UNJUST DISCRIMINATIONS, UNDUE
PREFERENCES OR ADVANTAGES, OR UNFAIR OR DESTRUCTIVE COMPETITIVE
PRACTICES; ...  ALL TO THE END OF DEVELOPING, COORDINATING, AND
PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND
RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS OF THE
COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE."  54 STAT. 899. 

THE HISTORY OF THE DEVELOPMENT OF THE SPECIAL NATIONAL TRANSPORTATION
POLICY SUGGESTS, QUITE APART FROM THE EXPLICIT PROVISION OF SEC. 5(11),
THAT THE POLICIES OF THE ANTI-TRUST LAWS DETERMINE "THE PUBLIC
INTEREST" IN RAILROAD REGULATION ONLY IN A QUALIFIED WAY.  AND THE
ALTERED EMPHASIS IN RAILROAD LEGISLATION ON ACHIEVING AN ADEQUATE,
EFFICIENT, AND ECONOMICAL SYSTEM OF TRANSPORTATION THROUGH CLOSE
SUPERVISION OF BUSINESS OPERATIONS AND PRACTICES RATHER THAN THROUGH
HEAVY RELIANCE ON THE ENFORCEMENT OF FREE COMPETITION IN VARIOUS PHASES
OF THE BUSINESS, CF. NEW YORK CENTRAL SECURITIES CORP. V. UNITED
STATES, 287 U.S. 12, HAS ITS COUNTERPART IN MOTOR CARRIER POLICY.  THE
PREMISES OF MOTOR CARRIER REGULATION POSIT SOME CURTAILMENT OF FREE AND
UNRESTRAINED COMPETITION.  FN17  THE ORIGINS  FN18 AND LEGISLATIVE
HISTORY  FN19  OF THE MOTOR CARRIER ACT ADEQUATELY DISCLOSE THAT IN IT
CONGRESS RECOGNIZED THERE MAY BE OCCASIONS WHEN "COMPETITION BETWEEN
CARRIERS MAY RESULT IN HARM TO THE PUBLIC AS WELL AS IN BENEFIT; AND
THAT WHEN A (CARRIER) INFLICTS INJURY UPON ITS RIVAL, IT MAY BE THE
PUBLIC WHICH ULTIMATELY BEARS THE LOSS."  CF. TEXAS & PACIFIC RY. CO.
V. GULF, C. & S.F. RY. CO., 270 U.S. 266, 277. 

WHATEVER MAY BE THE CASE WITH RESPECT EITHER TO OTHER KINDS OF
TRANSACTIONS BY OR AMONG CARRIERS FN20  OR TO CONSOLIDATIONS OF
DIFFERENT TYPES OF CARRIERS,  FN21  THERE CAN BE LITTLE DOUBT THAT THE
COMMISSION IS NOT TO MEASURE PROPOSALS FOR ALLRAIL OR ALL-MOTOR
CONSOLIDATIONS BY THE STANDARDS OF THE ANTI-TRUST LAWS.  CONGRESS
AUTHORIZED SUCH CONSOLIDATIONS BECAUSE IT RECOGNIZED THAT IN SOME
CIRCUMSTANCES THEY WERE APPROPRIATE FOR EFFECTUATION OF THE NATIONAL
TRANSPORTATION POLICY.  IT WAS INFORMED THAT THIS POLICY WOULD BE
FURTHERED BY "ENCOURAGING THE ORGANIZATION OF STRONGER UNITS" IN THE
MOTOR CARRIER INDUSTRY.  FN22  AND IN AUTHORIZING THOSE CONSOLIDATIONS
IT DID NOT IMPORT THE GENERAL POLICIES OF THE ANTI-TRUST LAWS AS A
MEASURE OF THEIR PERMISSIBILITY.  FN23  IT IN TERMS RELIEVED
PARTICIPANTS IN APPROPRIATE MERGERS FROM THE REQUIREMENTS OF THOSE
LAWS.  SEC. 5(11).  IN DOING SO, IT PRESUMABLY TOOK INTO ACCOUNT THE
FACT THAT THE BUSINESS AFFECTED IS SUBJECT TO STRICT REGULATION AND
SUPERVISION, PARTICULARLY WITH RESPECT TO RATES CHARGED THE PUBLIC - AN
EFFECTIVE SAFEGUARD AGAINST THE EVILS ATTENDING MONOPOLY, AT WHICH THE
SHERMAN ACT IS DIRECTED.  AGAINST THIS BACKGROUND, NO OTHER INFERENCE
IS POSSIBLE BUT THAT, AS A FACTOR IN DETERMINING THE PROPRIETY OF MOTOR
CARRIER CONSOLIDATIONS THE PRESERVATION OF COMPETITION AMONG CARRIERS,
ALTHOUGH STILL A VALUE,  FN24  IS SIGNIFICANT CHIEFLY AS IT AIDS IN THE
ATTAINMENT OF THE OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY. 

THEREFORE, THE COMMISSION IS NOT BOUND, AS APPELLANTS URGE, TO ACCEDE
TO THE POLICIES OF THE ANTI-TRUST LAWS SO COMPLETELY THAT ONLY WHERE
"INADEQUATE" TRANSPORTATION FACILITIES ARE SOUGHT TO BE MADE "ADEQUATE"
BY CONSOLIDATION CAN THEIR DICTATES BE OVERBORNE BY "THE PUBLIC
INTEREST."  THAT VIEW, IN EFFECT, WOULD REQUIRE THE COMMISSION TO
PERMIT ONLY THOSE CONSOLIDATIONS WHICH WOULD NOT OFFEND THE ANTI-TRUST
LAWS.  AS HAS BEEN SAID, THIS WOULD RENDER MEANINGLESS THE EXEMPTION
RELIEVING THE PARTICIPANTS IN A PROPERLY APPROVED MERGER OF THE
REQUIREMENTS OF THOSE LAWS, AND WOULD IGNORE THE FACT THAT THE MOTOR
CARRIER ACT IS TO BE ADMINISTERED WITH AN EYE TO AFFIRMATIVELY
IMPROVING TRANSPORTATION FACILITIES, NOT MERELY TO PRESERVING EXISTING
ARRANGEMENTS OR COMPETITIVE PRACTICES.  FN25 COMPARE DAYTON-GOOSE CREEK
RY. CO. V. UNITED STATES, SUPRA; THE NEW ENGLAND DIVISIONS CASE,
SUPRA. 

CONGRESS HOWEVER NEITHER HAS MADE THE ANTI-TRUST LAWS WHOLLY
INAPPLICABLE TO THE TRANSPORTATION INDUSTRY NOR HAS AUTHORIZED THE
COMMISSION IN PASSING ON A PROPOSED MERGER TO IGNORE THEIR POLICY. 
CONGRESS RECOGNIZED THAT THE PROCESS OF CONSOLIDATING MOTOR CARRIERS
WOULD RESULT IN SOME DIMINUTION OF COMPETITION AND MIGHT RESULT IN THE
CREATION OF MONOPOLIES.  TO PREVENT THE LATTER EFFECT AND TO MAKE
CERTAIN THAT THE FORMER WAS PERMITTED ONLY WHERE APPROPRIATE TO FURTHER
THE NATIONAL TRANSPORTATION POLICY, IT PLACED IN THE COMMISSION POWER
TO CONTROL SUCH DEVELOPMENTS.  FN26  THE NATIONAL TRANSPORTATION POLICY
REQUIRES THE COMMISSION TO "PROMOTE ...  ECONOMICAL ...  SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, (OR) UNDUE PREFERENCES OR ADVANTAGES.  ...  "  THE
PRESERVATION OF INDEPENDENT AND COMPETING MOTOR CARRIERS UNQUESTIONABLY
HAS BEARING ON THE ACHIEVEMENT OF THOSE ENDS.  HENCE, THE FACT THAT THE
CARRIERS PARTICIPATING IN A PROPERLY AUTHORIZED CONSOLIDATION MAY
OBTAIN IMMUNITY FROM PROSECUTION UNDER THE ANTI-TRUST LAWS IN NO SENSE
RELIEVES THE COMMISSION OF ITS DUTY, AS AN ADMINISTRATIVE MATTER, TO
CONSIDER THE EFFECT OF THE MERGER ON COMPETITORS AND ON THE GENERAL
COMPETITIVE SITUATION IN THE INDUSTRY IN THE LIGHT OF THE OBJECTIVES OF
THE NATIONAL TRANSPORTATION POLICY. 

IN SHORT, THE COMMISSION MUST ESTIMATE THE SCOPE AND APPRAISE THE
EFFECTS OF THE CURTAILMENT OF COMPETITION WHICH WILL RESULT FROM THE
PROPOSED CONSOLIDATION AND CONSIDER THEM ALONG WITH THE ADVANTAGES OF
IMPROVED SERVICE, SAFER OPERATION, LOWER COSTS, ETC., TO DETERMINE
WHETHER THE CONSOLIDATION WILL ASSIST IN EFFECTUATING THE OVER-ALL
TRANSPORTATION POLICY.  RESOLVING THESE CONSIDERATIONS IS A COMPLEX
TASK WHICH REQUIRES EXTENSIVE FACILITIES, EXPERT JUDGMENT AND
CONSIDERABLE KNOWLEDGE OF THE TRANSPORTATION INDUSTRY.  CONGRESS LEFT
THAT TASK TO THE COMMISSION "TO THE END THAT THE WISDOM AND EXPERIENCE
OF THAT COMMISSION MAY BE USED NOT ONLY IN CONNECTION WITH THIS FORM OF
TRANSPORTATION, BUT IN ITS COORDINATION OF ALL OTHER FORMS."  79 CONG.
REC. 12207.  "THE WISDOM AND EXPERIENCE OF THAT COMMISSION," NOT OF THE
COURTS, MUST DETERMINE WHETHER THE PROPOSED CONSOLIDATION IS
"CONSISTENT WITH THE PUBLIC INTEREST."  CF. INTERSTATE COMMERCE
COMMISSION V. ILLINOIS CENTRAL R. CO., 215 U.S. 452; PENNSYLVANIA CO.
V. UNITED STATES, 236 U.S. 351; UNITED STATES V. CHICAGO HEIGHTS
TRUCKING CO., 310 U.S. 344; PURCELL V. UNITED STATES, 315 U.S. 381.  IF
THE COMMISSION DID NOT EXCEED THE STATUTORY LIMITS WITHIN WHICH
CONGRESS CONFINED ITS DISCRETION AND ITS FINDINGS ARE ADEQUATE AND
SUPPORTED BY EVIDENCE, IT IS NOT OUR FUNCTION TO UPSET ITS ORDER. 

            IV. 

THE COMMISSION FOUND, AS HAS BEEN NOTED, THAT THE PROPOSED
CONSOLIDATION WOULD RESULT IN IMPROVED TRANSPORTATION SERVICE, GREATER
EFFICIENCY OF OPERATION AND SUBSTANTIAL OPERATING ECONOMIES.  THE
HIGHER LOAD FACTOR ON TRUCKS, REDUCTION IN THE NUMBER OF TRUCKS USED
AND THE MILEAGE TRAVERSED WOULD LEAD TO MORE EFFICIENT USE OF EQUIPMENT
AND SAVE MOTOR FUEL.  TERMINAL FACILITIES WOULD BE CONSOLIDATED AND
USED MORE EFFECTIVELY, THROUGH MOVEMENT OF FREIGHT WOULD REDUCE COSTS
AND IN A MULTITUDE OF OTHER WAYS THE STABILITY AND SAFETY OF THE
SERVICE RENDERED WOULD BE ENHANCED.  FN27  THE COMMISSION ALSO
CONSIDERED THE EXTENT TO WHICH COMPETITION AMONG THE MERGING CARRIERS
WOULD BE DIMINISHED, THE EFFECTS OF THE CONSOLIDATION ON COMPETING
CARRIERS AND THE CONSEQUENCES FOR TRANSPORTATION SERVICE AND MOTOR
CARRIER OPERATIONS IN GENERAL IN THE AREAS AFFECTED.  IT FOUND THAT IN
EACH OF THE AREAS SERVED BY THE PRESENT COMPONENTS OF THE MERGER THERE
ARE FROM 44 TO MORE THAN 100 CLASS I CARRIERS, MANY OF WHICH WERE
REGULAR ROUTE COMMON CARRIERS OF GENERAL COMMODITIES, COMPARABLE IN
SIZE - INSOFAR AS SIZE IS DISCLOSED BY OPERATING REVENUES - TO SOME OF
THE PARTICIPANTS IN THE CONSOLIDATION.  BETWEEN THE PRINCIPAL POINTS IN
EACH OF THE AREAS SERVED SUBSTANTIAL COMPETITION BY INDEPENDENT CLASS I
CARRIERS NOW EXISTS.  WHILE NONE OF THESE CARRIERS OPERATES A THROUGH
SERVICE OVER THE ENTIRE AREA TO BE SERVED BY ASSOCIATED, THE COMMISSION
FOUND THAT RAIL CARRIER SERVICE COMPETES AT ALL THE PRINCIPAL POINTS TO
BE SERVED BY ASSOCIATED, AND THAT CONTRACT CARRIERS ALSO OFFER
COMPETITION.    THE COMMISSION DETERMINED, ON THE BASIS OF FACTS
APPEARING IN THE RECORD AND ITS EXPERIENCE WITH OTHER CONSOLIDATIONS,
THAT IT WAS NOT LIKELY THAT ASSOCIATED'S SIZE AND COMPETITIVE
ADVANTAGES WOULD ENABLE IT TO CONTROL THE PRICE AND CHARACTER OF
INTERCHANGE TRAFFIC, TO DRAIN OFF SUBSTANTIAL AMOUNTS OF SHIPPERS'
BUSINESS OR IN OTHER WAYS TO SMOTHER THE COMPETITION OF OTHER MOTOR
CARRIERS.  IT CONCLUDED THAT AMPLE COMPETITION WOULD REMAIN AND,
WEIGHING ALL THE FACTORS, THAT THE CONSOLIDATION WAS "CONSISTENT WITH
THE PUBLIC INTEREST." 

NECESSARILY IN ITS INQUIRY THE COMMISSION HAD TO SPECULATE TO SOME
EXTENT AS TO THE FUTURE CONSEQUENCES AND EFFECTS OF A PRESENT
CONSOLIDATION.  BUT IT BASED ITS JUDGMENT ON AVAILABLE FACTS AS TO
PRESENT OPERATIONS AND BUSINESS PRACTICES AND PAST EXPERIENCE WITH
TRANSPORTATION OPERATIONS AND ANALOGOUS TRANSACTIONS. 

WE CANNOT SAY THAT THE COMMISSION MEASURED "THE PUBLIC INTEREST" BY
STANDARDS OTHER THAN THOSE CONGRESS PROVIDED OR THAT ITS FINDINGS DO
NOT COMPLY WITH THE REQUIREMENTS OF THE ACT.  THE MATERIAL FINDINGS ARE
SUPPORTED BY EVIDENCE; AND WHILE A MORE METICULOUS REGARD FOR ITS
FUNCTION MIGHT HAVE IMPELLED THE COMMISSION TO ACCEDE TO THE ANTI-TRUST
DIVISION'S REQUEST FOR CERTAIN INFORMATION FROM OTHER SHIPPERS BEARING
ON THE QUESTION OF COMPETITION, WE DO NOT THINK ITS FAILURE TO DO SO
REQUIRES, ON THIS RECORD, THAT ITS CONCLUSIONS BE OVERTURNED. 

  V. 

APPELLANTS ALSO ATTACK THE PROPRIETY OF THE COMMISSION'S CONCLUSION
THAT ASSOCIATED IS NOT, AND WOULD NOT BE, ON CONSUMMATION OF THE
CONSOLIDATION, "AFFILIATED" WITH ANY RAILROAD.  WHATEVER MIGHT HAVE
BEEN THE CASE IF ARROW HAD BEEN INCLUDED IN THE MERGER, A DIFFERENT
QUESTION IS PRESENTED BY THE ORDERS NOW UNDER REVIEW. 


"THAT IF  ...  ANY PERSON WHICH IS CONTROLLED BY A (RAIL) CARRIER, OR
AFFILIATED THEREWITH WITHIN THE MEANING OF PARAGRAPH (6), IS AN
APPLICANT IN THE CASE OF ANY SUCH PROPOSED TRANSACTION INVOLVING A
MOTOR CARRIER, THE COMMISSION SHALL NOT ENTER SUCH AN ORDER UNLESS IT
FINDS THAT THE TRANSACTION PROPOSED WILL BE CONSISTENT WITH THE PUBLIC
INTEREST AND WILL ENABLE SUCH CARRIER TO USE SERVICE BY MOTOR VEHICLE
TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN
COMPETITION." 


"FOR THE PURPOSES OF THIS SECTION A PERSON SHALL BE HELD TO BE
AFFILIATED WITH A CARRIER IF, BY REASON OF THE RELATIONSHIP OF SUCH
PERSON TO SUCH CARRIER (WHETHER BY REASON OF THE METHOD OF, OR
CIRCUMSTANCES SURROUNDING ORGANIZATION OR OPERATION, OR WHETHER
ESTABLISHED THROUGH COMMON DIRECTORS, OFFICERS, OR STOCKHOLDERS, A
VOTING TRUST OR TRUSTS, A HOLDING OR INVESTMENT COMPANY OR COMPANIES,
OR ANY OTHER DIRECT OR INDIRECT MEANS), IT IS REASONABLE TO BELIEVE
THAT THE AFFAIRS OF ANY CARRIER OF WHICH CONTROL MAY BE ACQUIRED BY
SUCH PERSON WILL BE MANAGED IN THE INTEREST OF SUCH OTHER CARRIER." 

THE ONLY RELEVANT EVIDENCE NOW POINTING TOWARD AFFILIATION OF THE
APPLICANT WITH RAIL CARRIERS ARE THE FACTS THAT KUHN, LOEB AND COMPANY
INDIRECTLY OWNS 9,000 SHARES OF ASSOCIATED'S COMMON STOCK, HAS ONE
REPRESENTATIVE AMONG THE NINE DIRECTORS OF ASSOCIATED, HAS INVESTMENT
BANKING CONNECTIONS WITH COMPETING RAIL CARRIERS, AND IS REPRESENTED ON
THE BOARDS OF DIRECTORS OF OTHER RAILROADS.  FOR PRESENT PURPOSES WE
MAY ASSUME THAT BY VIRTUE OF THOSE CONNECTIONS THE RAIL CARRIERS'
INTERESTS WILL BE THE BANKING HOUSE'S INTERESTS IN DIRECTING THE
AFFAIRS OF ASSOCIATED.  BUT ASIDE FROM THE PROPORTIONATELY SMALL (9,000
OUT OF 1,000,000 COMMON SHARES) STOCK OWNERSHIP AND THE PLACE ON THE
BOARD OF DIRECTORS, THE COMMISSION FOUND NO CONNECTION - EITHER IN THE
ORIGINS OF THE PRESENT PROPOSAL OR IN PERSONNEL, FINANCING OR OTHERWISE
- BETWEEN KUHN, LOEB AND COMPANY AND THE RAIL CARRIERS ON THE ONE HAND
AND ASSOCIATED ON THE OTHER.  THIS CONTRASTS SHARPLY WITH THE
CIRCUMSTANCES IN TRANSPORT CO., 36 M.C.C. 61, WHERE A MUCH LARGER
MERGER OF EASTERN MOTOR CARRIER OPERATORS, SOUGHT TO BE CONSUMMATED
WITH AT LEAST THE ASSISTANCE OF KUHN, LOEB AND COMPANY, WAS DENIED
APPROVAL BY THE COMMISSION.  AND IN THE PRESENT MERGER OTHERS, NOT
ASSOCIATED, SO FAR AS THIS RECORD SHOWS, WITH KUHN, LOEB AND COMPANY OR
RAIL CARRIERS WOULD HAVE SUBSTANTIAL BLOCKS OF STOCK.  FN28  WE CANNOT
FIND ANYTHING ARBITRARY OR UNREASONABLE IN THE CONCLUSION THAT THE
CONSOLIDATION AS FINALLY AUTHORIZED WILL NOT RESULT IN ASSOCIATED'S
BEING AFFILIATED WITH A CARRIER BY RAIL.  IT MAY BE ADDED THAT UNDER
THE COMMISSION'S ORDER IN THIS CASE THE RELATIVELY CLOSE HOLDINGS WHICH
WILL EMERGE FROM THE CONSOLIDATION CANNOT BE ALTERED WITHOUT THE
COMMISSION'S APPROVAL.  AND IT IS THE CONSOLIDATION AS APPROVED WHICH
IS EXEMPTED FROM THE OPERATION OF THE ANTI-TRUST LAWS AND THE
PROHIBITION AGAINST RAIL AFFILIATION WITHOUT APPROVAL.  ANY FUTURE
CHANGE WHICH MAY BRING THE CONSOLIDATION INTO CLASH WITH EITHER
PROHIBITION MAY BE CONSIDERED WHEN IT ARISES. 

ACCORDINGLY THE JUDGMENT IS AFFIRMED. 

FN1  28 U.S.C. SECS. 44, 47, 47A, 345. 

FN2  OTHER MOTOR CARRIERS, SHIPPERS AND SHIPPERS' ORGANIZATIONS
INTERVENED IN THE PROCEEDING, AS DID ALSO THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA.  EXCEPT
FOR THE LATTER, WHICH AT FIRST OPPOSED BUT ULTIMATELY SUPPORTED THE
APPLICATION, THEY TOOK NO POSITION ON THE QUESTION WHETHER THE
APPLICATION SHOULD BE APPROVED. 

FN3  THREE COMMISSIONERS DISSENTED.  APPROVAL OF THE MERGER WAS
QUALIFIED BY THE IMPOSITION OF CERTAIN CONDITIONS NOT HERE RELEVANT. 

FN4  THE FOUR NONCARRIERS, EACH ASSOCIATED WITH ONE OF THE CARRIERS,
ARE BARNWELL WAREHOUSE & BROKERAGE COMPANY (ASSOCIATED WITH BARNWELL),
BROWN EQUIPMENT & MANUFACTURING COMPANY (ASSOCIATED WITH HORTON),
CONGER REALTY COMPANY (ASSOCIATED WITH HORTON), AND SOUTHERN NEW
ENGLAND TERMINALS, INC. (ASSOCIATED WITH MCCARTHY). 

FN5  THE COMMISSION FOUND THAT CONSOLIDATED AND MCCARTHY COMPETE
SUBSTANTIALLY THROUGHOUT CONNECTICUT, MASSACHUSETTS AND RHODE ISLAND
BUT CONSOLIDATED ALONE OPERATES BETWEEN THOSE AREAS AND NEW YORK CITY. 
CONSOLIDATED AND MORAN COMPETE BETWEEN THE PRINCIPAL POINTS IN NEW YORK
STATE, BUT MORAN'S ROUTES ALSO EXTEND TO CLEVELAND, OHIO, AND TO
SEVERAL POINTS IN NORTHERN PENNSYLVANIA.  THERE IS SOME COMPETITION
AMONG ARROW, CONSOLIDATED AND MORAN IN NEW YORK, AND OTHERS OF ARROW'S
ROUTES PARALLEL THOSE OF BARNWELL AND HORTON.  BARNWELL, HORTON AND
SOUTHEASTERN COMPETE TO SOME EXTENT IN PARTS OF THE MIDDLE ATLANTIC
STATES (EXCLUDING NEW YORK).  BARNWELL, HORTON AND TRANSPORTATION,
INC., COMPETE IN PORTIONS OF THE SOUTHERN REGION, AND SOUTHEASTERN
COMPETES SOMEWHAT WITH THEM IN THAT AREA. 

FN6  ASSOCIATED IS AUTHORIZED BY ITS CHARTER TO ISSUE 100,000 SHARES
OF $100 PAR VALUE PREFERRED STOCK DRAWING SIX PER CENT CUMULATIVE
DIVIDENDS ANNUALLY AND 1,000,000 SHARES OF $1.00 PAR VALUE COMMON
STOCK.  ONE OF THE CONDITIONS OF THE COMMISSION'S ORDER HERE IS THAT NO
PAR VALUE BE ASSIGNED THE COMMON STOCK.  THE COMMISSION FOUND THAT IN
EXCHANGE FOR ALL THE OUTSTANDING STOCK OF THE MERGED COMPANIES (EXCEPT
A SMALL QUANTITY OF THE PREFERRED STOCK OF TWO OF THE CARRIERS WHICH
WAS TO BE REDEEMED FOR CASH) ASSOCIATED WAS TO ISSUE 648,643 SHARES OF
ITS COMMON AND 39,049 SHARES OF ITS PREFERRED STOCK, WHICH ON THE
CANCELLATION OF CERTAIN SHARES IN CONNECTION WITH THE STOCK OF ONE OF
THE NONCARRIERS WOULD LEAVE OUTSTANDING 633,171 SHARES OF COMMON AND
37,942 SHARES OF PREFERRED.  ANOTHER 15,000 SHARES OF PREFERRED WERE TO
BE OFFERED TO THE PUBLIC IN ORDER TO ENABLE ASSOCIATED TO OBTAIN
SURPLUS CASH.  THE PREFERRED, WHICH LIKE THE COMMON WAS ENTITLED TO ONE
VOTE PER SHARE, WAS CONVERTIBLE INTO COMMON AT THE OPTION OF THE
HOLDERS, ON TERMS NOT HERE RELEVANT. 

THERE WERE 71,480 SHARES OF ASSOCIATED'S COMMON STOCK OUTSTANDING AT
THE TIME THE APPLICATION WAS FILED, OF WHICH 31,240 WERE HELD BY THE
PRESIDENT OF ASSOCIATED, 9,000 BY THE TRANSPORT COMPANY (RECEIVED FOR
ENGINEERING ACCOUNTING DATA GIVEN IN CONNECTION WITH THE MERGER), AND
THE REMAINDER BY STOCKHOLDERS IN THE CORPORATIONS TO BE MERGED. 

FN7  SECTION 5 PROVIDES IN PERTINENT PARTS: 

"SEC. 5.  (1)  EXCEPT UPON SPECIFIC APPROVAL BY ORDER OF THE
COMMISSION AS IN THIS SECTION PROVIDED, AND EXCEPT AS PROVIDED IN
PARAGRAPH (16) OF SECTION 1 OF THIS PART, IT SHALL BE UNLAWFUL FOR ANY
COMMON CARRIER SUBJECT TO THIS PART, PART II, OR PART III TO ENTER INTO
ANY CONTRACT, AGREEMENT, OR COMBINATION WITH ANY OTHER SUCH COMMON
CARRIER OR CARRIERS FOR THE POOLING OR DIVISION OF TRAFFIC, OR OF
SERVICE, OR OF GROSS OR NET EARNINGS, OR OF ANY PORTION THEREOF; AND IN
ANY CASE OF AN UNLAWFUL AGREEMENT FOR THE POOLING OR DIVISION OF
TRAFFIC, SERVICE, OR EARNINGS AS AFORESAID EACH DAY OF ITS CONTINUANCE
SHALL BE A SEPARATE OFFENSE:  PROVIDED, THAT WHENEVER THE COMMISSION IS
OF OPINION, AFTER HEARING UPON APPLICATION OF ANY SUCH CARRIER OR
CARRIERS OR UPON ITS OWN INITIATIVE, THAT THE POOLING OR DIVISION, TO
THE EXTENT INDICATED BY THE COMMISSION, OF THEIR TRAFFIC, SERVICE, OR
GROSS OR NET EARNINGS, OR OF ANY PORTION THEREOF, WILL BE IN THE
INTEREST OF BETTER SERVICE TO THE PUBLIC OR OF ECONOMY IN OPERATION,
AND WILL NOT UNDULY RESTRAIN COMPETITION, THE COMMISSION SHALL BY ORDER
APPROVE AND AUTHORIZE, IF ASSENTED TO BY ALL THE CARRIERS INVOLVED,
SUCH POOLING OR DIVISION, UNDER SUCH RULES AND REGULATIONS, AND FOR
SUCH CONSIDERATION AS BETWEEN SUCH CARRIERS AND UPON SUCH TERMS AND
CONDITIONS, AS SHALL BE FOUND BY THE COMMISSION TO BE JUST AND
REASONABLE IN THE PREMISES:  ... 

"(2)(A)  IT SHALL BE LAWFUL, WITH THE APPROVAL AND AUTHORIZATION OF
THE COMMISSION, AS PROVIDED IN SUBDIVISION (B) - 

(I)  FOR TWO OR MORE CARRIERS TO CONSOLIDATE OR MERGE THEIR
PROPERTIES OR FRANCHISES, OR ANY PART THEREOF, INTO ONE CORPORATION FOR
THE OWNERSHIP, MANAGEMENT, AND OPERATION OF THE PROPERTIES THERETOFORE
IN SEPARATE OWNERSHIP; OR FOR ANY CARRIER, OR TWO OR MORE CARRIERS
JOINTLY, TO PURCHASE, LEASE, OR CONTRACT TO OPERATE THE PROPERTIES, OR
ANY PART THEREOF, OF ANOTHER; OR FOR ANY CARRIER, OR TWO OR MORE
CARRIERS JOINTLY, TO ACQUIRE CONTROL OF ANOTHER THROUGH OWNERSHIP OF
ITS STOCK OR OTHERWISE; OR FOR A PERSON WHICH IS NOT A CARRIER TO
ACQUIRE CONTROL OF TWO OR MORE CARRIERS THROUGH OWNERSHIP OF THEIR
STOCK OR OTHERWISE; OR FOR A PERSON WHICH IS NOT A CARRIER AND WHICH
HAS CONTROL OF ONE OR MORE CARRIERS TO ACQUIRE CONTROL OF ANOTHER
CARRIER THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE; 

(II)  FOR A CARRIER BY RAILROAD TO ACQUIRE TRACKAGE RIGHTS OVER, OR
JOINT OWNERSHIP IN OR JOINT USE OF, ANY RAILROAD LINE OR LINES OWNED OR
OPERATED BY ANY OTHER SUCH CARRIER, AND TERMINALS INCIDENTAL THERETO. 

"(B)  WHENEVER A TRANSACTION IS PROPOSED UNDER SUBPARAGRAPH (A), THE
CARRIER OR CARRIERS OR PERSON SEEKING AUTHORITY THEREFOR SHALL PRESENT
AN APPLICATION TO THE COMMISSION, AND THEREUPON THE COMMISSION SHALL
NOTIFY THE GOVERNOR OF EACH STATE IN WHICH ANY PART OF THE PROPERTIES
OF THE CARRIERS INVOLVED IN THE PROPOSED TRANSACTION IS SITUATED, AND
ALSO SUCH CARRIERS AND THE APPLICANT OR APPLICANTS (AND, IN CASE
CARRIERS BY MOTOR VEHICLE ARE INVOLVED, THE PERSONS SPECIFIED IN
PARTIES TO BE HEARD.  IF THE COMMISSION SHALL CONSIDER IT NECESSARY IN
ORDER TO DETERMINE WHETHER THE FINDINGS SPECIFIED BELOW MAY PROPERLY BE
MADE, IT SHALL SET SAID APPLICATION FOR PUBLIC HEARING, AND A PUBLIC
HEARING SHALL BE HELD IN ALL CASES WHERE CARRIERS BY RAILROAD ARE
INVOLVED.  IF THE COMMISSION FINDS THAT, SUBJECT TO SUCH TERMS AND
CONDITIONS AND SUCH MODIFICATIONS AS IT SHALL FIND TO BE JUST AND
REASONABLE, THE PROPOSED TRANSACTION IS WITHIN THE SCOPE OF
SUBPARAGRAPH (A) AND WILL BE CONSISTENT WITH THE PUBLIC INTEREST, IT
SHALL ENTER AN ORDER APPROVING AND AUTHORIZING SUCH TRANSACTION, UPON
THE TERMS AND CONDITIONS, AND WITH THE MODIFICATIONS, SO FOUND TO BE
JUST AND REASONABLE:  PROVIDED, THAT IF A CARRIER BY RAILROAD SUBJECT
TO THIS PART, OR ANY PERSON WHICH IS CONTROLLED BY SUCH A CARRIER, OR
AFFILIATED THEREWITH WITHIN THE MEANING OF PARAGRAPH (6), IS AN
APPLICANT IN THE CASE OF ANY SUCH PROPOSED TRANSACTION INVOLVING A
MOTOR CARRIER, THE COMMISSION SHALL NOT ENTER SUCH AN ORDER UNLESS IT
FINDS THAT THE TRANSACTION PROPOSED WILL BE CONSISTENT WITH THE PUBLIC
INTEREST AND WILL ENABLE SUCH CARRIER TO USE SERVICE BY MOTOR VEHICLE
TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN
COMPETITION. 

"(C)  IN PASSING UPON ANY PROPOSED TRANSACTION UNDER THE PROVISIONS
OF THIS PARAGRAPH (2), THE COMMISSION SHALL GIVE WEIGHT TO THE
FOLLOWING CONSIDERATIONS, AMONG OTHERS:  (1) THE EFFECT OF THE PROPOSED
TRANSACTION UPON ADEQUATE TRANSPORTATION SERVICE TO THE PUBLIC; (2) THE
EFFECT UPON THE PUBLIC INTEREST OF THE INCLUSION, OR FAILURE TO
INCLUDE, OTHER RAILROADS IN THE TERRITORY INVOLVED IN THE PROPOSED
TRANSACTION; (3) THE TOTAL FIXED CHARGES RESULTING FROM THE PROPOSED
TRANSACTION; AND (4) THE INTEREST OF THE CARRIER EMPLOYEES AFFECTED. 

.         .         .         .         . 

"(6)  FOR THE PURPOSES OF THIS SECTION A PERSON SHALL BE HELD TO BE
AFFILIATED WITH A CARRIER IF, BY REASON OF THE RELATIONSHIP OF SUCH
PERSON TO SUCH CARRIER (WHETHER BY REASON OF THE METHOD OF, OR
CIRCUMSTANCES SURROUNDING ORGANIZATION OR OPERATION, OR WHETHER
ESTABLISHED THROUGH COMMON DIRECTORS, OFFICERS, OR STOCKHOLDERS, A
VOTING TRUST OR TRUSTS, A HOLDING OR INVESTMENT COMPANY OR COMPANIES,
OR ANY OTHER DIRECT OR INDIRECT MEANS), IT IS REASONABLE TO BELIEVE
THAT THE AFFAIRS OF ANY CARRIER OF WHICH CONTROL MAY BE ACQUIRED BY
SUCH PERSON WILL BE MANAGED IN THE INTEREST OF SUCH OTHER CARRIER. 
"(11)  THE AUTHORITY CONFERRED BY THIS SECTION SHALL BE EXCLUSIVE AND
PLENARY,  ...  AND ANY CARRIERS OR OTHER CORPORATIONS, AND THEIR
OFFICERS AND EMPLOYEES AND ANY OTHER PERSONS, PARTICIPATING IN A
TRANSACTION APPROVED OR AUTHORIZED UNDER THE PROVISIONS OF THIS SECTION
SHALL BE AND THEY ARE HEREBY RELIEVED FROM THE OPERATION OF THE
ANTITRUST LAWS AND OF ALL OTHER RESTRAINTS, LIMITATIONS, AND
PROHIBITIONS OF LAW, FEDERAL, STATE, OR MUNICIPAL, INSOFAR AS MAY BE
NECESSARY TO ENABLE THEM TO CARRY INTO EFFECT THE TRANSACTIONS SO
APPROVED OR PROVIDED FOR IN ACCORDANCE WITH THE TERMS AND CONDITIONS,
IF ANY, IMPOSED BY THE COMMISSION, AND TO HOLD, MAINTAIN, AND OPERATE
ANY PROPERTIES AND EXERCISE ANY CONTROL OR FRANCHISES ACQUIRED THROUGH
SUCH TRANSACTION." 

FN8  "AFFILIATED THEREWITH" IS DEFINED IN SEC. 5(6), SUPRA NOTE 7. 

FN9  24 STAT. 379.  SEE SHARFMAN, THE INTERSTATE COMMERCE COMMISSION
(1935), PART I, 11-20, AND AUTHORITIES CITED, FOR A CONCISE COMPILATION
OF THE MORE IMPORTANT LEGISLATION IMPLEMENTING THE INTERSTATE COMMERCE
ACT OF 1887 AND A REFERENCE TO SOME OF THE IMPULSES LEADING TO THE
ADOPTION OF THAT ACT; SEE ALSO HEALY, THE ECONOMICS OF TRANSPORTATION
(1940) CH. 18 ET SEQ. 

FN10  COMPARE THE INTERSTATE COMMERCE ACT OF 1887, 24 STAT. 379, AND
THE STATUTES COLLECTED IN SHARFMAN, SUPRA NOTE 9, WITH THE
TRANSPORTATION ACT OF 1920, 41 STAT. 456(SEE ALSO MACVEAGH, THE
TRANSPORTATION ACT OF 1920(1923)), THE EMERGENCY TRANSPORTATION ACT OF
1933, 48 STAT. 211, AND THE TRANSPORTATION ACT OF 1940, 54 STAT. 898. 
SEE ALSO ANNUAL REPORTS OF THE INTERSTATE COMMERCE COMMISSION FOR 1888,
PP. 25-26; 1892, PP. 47-55; 1893, P. 9; 1894, P. 63; 1897, PP. 48-51;
1898, PP. 18-22; 1900, P. 13; 1918, PP. 4-9; 1919, PP. 1-6.  SEE
GENERALLY, JOHNSON, GOVERNMENT REGULATION OF TRANSPORTATION (1938);
NELSON, THE ROLE OF REGULATION REEXAMINED, TRANSPORTATION AND NATIONAL
POLICY, NATIONAL RESOURCES PLANNING BOARD (MAY, 1942) 197. 

FN11  THE NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 189. 

FN12  CF. AUTHORITIES CITED SUPRA NOTES 9 AND 10.  THE INTERSTATE
COMMERCE ACT OF 1887(24 STAT. 379) WAS IN A SENSE A SHADOW CAST BY THE
COMING SHERMAN ACT (26 STAT. 209).  COMPARE SNYDER, THE INTERSTATE
COMMERCE ACT AND FEDERAL ANTI-TRUST LAWS (1904) 121-122. 

FN13  THE NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 189. 

FN14  CF. E.G., AIR COMMERCE ACT OF 1926, 44 STAT. 568, AS AMENDED BY
48 STAT. 1113; AIR MAIL ACT OF 1934, 48 STAT. 933; AIR MAIL ACT OF
1935, 49 STAT. 614; CIVIL AERONAUTICS ACT OF 1938, 52 STAT. 973; MOTOR
CARRIER ACT OF 1935, 49 STAT. 543; AND COMPARE TITLE II OF THE
TRANSPORTATION ACT OF 1940, 54 STAT. 898, 929. 

FN15  SEN. REP. NO. 482, 74TH CONG., 1ST SESS., 3. 

FN16  "IT IS HEREBY DECLARED TO BE THE POLICY OF CONGRESS TO REGULATE
TRANSPORTATION BY MOTOR CARRIERS IN SUCH MANNER AS TO RECOGNIZE AND
PRESERVE THE INHERENT ADVANTAGES OF, AND FOSTER SOUND ECONOMIC
CONDITIONS IN, SUCH TRANSPORTATION AND AMONG SUCH CARRIERS IN THE
PUBLIC INTEREST; PROMOTE ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE BY
MOTOR CARRIERS, AND REASONABLE CHARGES THEREFOR, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, AND UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; IMPROVE THE RELATIONS BETWEEN, AND
COORDINATE TRANSPORTATION BY AND REGULATION OF, MOTOR CARRIERS AND
OTHER CARRIERS; DEVELOP AND PRESERVE A HIGHWAY TRANSPORTATION SYSTEM
PROPERLY ADAPTED TO THE NEEDS OF THE COMMERCE OF THE UNITED STATES AND
OF THE NATIONAL DEFENSE; AND COOPERATE WITH THE SEVERAL STATES AND THE
DULY AUTHORIZED OFFICIALS THEREOF AND WITH ANY ORGANIZATION OF MOTOR
CARRIERS IN THE ADMINISTRATION AND ENFORCEMENT OF THIS PART."  49 STAT.
543. 

FN17  NO MOTOR CARRIER CAN OPERATE IN INTERSTATE COMMERCE WITHOUT A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, 49 U.S.C. SEC. 306, 49
STAT. 551, 52 STAT. 1238, 54 STAT. 923.  COMPARE MONOGRAPH NO. 21,
TEMPORARY NATIONAL ECONOMIC COMMITTEE, 76TH CONG., 3D SESS., 268. 

THE REPORTS OF THE COORDINATOR OF TRANSPORTATION (SEN. DOC. NO. 152,
73D CONG., 2D SESS.; H. DOC. 89, 74TH CONG., 1ST SESS.) ON WHICH THE
ACT IS IN LARGE MEASURE BASED (79 CONG. REC. 12207; SEN. REP. NO. 482,
74TH CONG., 1ST SESS.; H.R. REP. NO. 1645, 74TH CONG., 1ST SESS.)
DISCLOSE GRAPHICALLY THAT AMONG THE EVILS WITH WHICH THE MOTOR CARRIER
INDUSTRY WAS AFFLICTED AND WHICH WOULD BE CURED BY THE ACT WAS
UNRESTRAINED COMPETITION.  IT WAS ANTICIPATED THAT THE ACT WOULD CONFER
BENEFITS ON THE INDUSTRY "BY PROMOTING A MORE ORDERLY CONDUCT OF THE
BUSINESS, LESSENING IRRESPONSIBLE COMPETITION AND UNDUE INTERNAL
STRIFE, ENCOURAGING THE ORGANIZATION OF STRONGER UNITS, AND OTHERWISE
ENABLING THE INDUSTRY TO PUT ITSELF ON A SOUNDER AND MORE GENERALLY
PROFITABLE BASIS."  H. DOC. 89, 74TH CONG., 1ST SESS. (1934) 127. 

FN18  SEE PARTICULARLY THE REPORTS OF THE COORDINATOR OF
TRANSPORTATION, CITED SUPRA NOTE 17. 

FN19  SEN. REP. NO. 482, 74TH CONG., 1ST SESS.; 79 CONG. REC. 12206. 

FN20  EVEN AFTER THE MAJOR SHIFT IN POLICY REFLECTED IN THE
TRANSPORTATION ACT OF 1920, CONGRESS LEFT IT ABUNDANTLY CLEAR THAT THE
PRESERVATION OF COMPETITION AND THE ELIMINATION OF MONOPOLISTIC
PRACTICES IN MANY PHASES OF THE TRANSPORTATION INDUSTRY WAS A
DESIDERATUM.  SEE E.G., 15 U.S.C. SECS. 13, 14, 18-21; 38 STAT. 730 ET
SEQ., 48 STAT. 1102, 49 STAT. 1526-1528; 31 I.C.C. 32, 61; 31 I.C.C.
351, 413-414; AND SEC. 5(1) OF THE INTERSTATE COMMERCE ACT, 41 STAT.
480-481; 54 STAT. 905; AND COMPARE CHESAPEAKE & OHIO RY. CO. V. UNITED
STATES, 283 U.S. 35. 

FN21  CF. 49 U.S.C. SEC. 5(14)-(16); 37 STAT. 566, 41 STAT. 482, 54
STAT. 909.  IN CONNECTION WITH THE CONSOLIDATION OF RAIL AND MOTOR
CARRIERS CONGRESS WAS EXPLICIT ON THE SUBJECT OF COMPETITION IN ITS
MANDATE TO THE COMMISSION.  FEARFUL OF THE DANGEROUS POTENTIALITIES
WHICH SUCH COORDINATION MIGHT CREATE (SEE 79 CONG. REC. 5654-5655,
12206, 12222-12225) CONGRESS PRESCRIBED MORE RIGOROUS REQUIREMENTS FOR
THAT PROCESS THAN FOR SIMPLE MOTOR CARRIER CONSOLIDATIONS.  FOR THE
LATTER APPROVAL MAY BE GRANTED IF THE COMMISSION FINDS THE TRANSACTION
"CONSISTENT WITH THE PUBLIC INTEREST."  FOR A RAIL CARRIER TO
CONSOLIDATE WITH A MOTOR CARRIER, COMMISSION APPROVAL REQUIRES A
FINDING THAT THE TRANSACTION WILL "BE CONSISTENT WITH THE PUBLIC
INTEREST AND WILL ENABLE SUCH CARRIER TO USE SERVICE BY MOTOR VEHICLE
TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN
COMPETITION."  COMPARE THE LANGUAGE OF SEC. 213(A) OF THE MOTOR CARRIER
ACT OF 1935, 49 STAT. 555-556, 52 STAT. 1239, (AND CF. 86 CONG. REC.
11546) WITH THAT OF SEC. 5 OF THE TRANSPORTATION ACT OF 1940. 

FN22  CF. NOTE 17 SUPRA.  AUTHORIZATION OF CONSOLIDATION OF RAIL
CARRIERS STEMS HISTORICALLY FROM CIRCUMSTANCES DIFFERENT FROM THOSE
IMPELLING THE AUTHORIZATION OF CONSOLIDATION OF MOTOR CARRIERS. 
COMPARE AUTHORITIES CITED IN NOTES 9 AND 10 SUPRA WITH THOSE IN NOTES
17-19 SUPRA THIS DIFFERENCE IN ORIGINS IS NOT ENTIRELY TO BE IGNORED
SIMPLY BECAUSE THE SAME PROVISIONS OF SEC. 5 NOW GOVERN BOTH MOTOR
CARRIER AND RAIL CARRIER CONSOLIDATIONS.  CF. 86 CONG. REC. 11546.  BUT
WHATEVER EFFECT THE DIFFERENCE MAY HAVE, AS A GUIDE TO THE COMMISSION
CONCERNING THE EXTENT TO WHICH AND CIRCUMSTANCES IN WHICH CONSOLIDATION
SHOULD BE ALLOWED, IT CANNOT NULLIFY THE POWER GIVEN TO THE COMMISSION
BY SEC. 5(11). 

FN23  COMPARE THE PROVISIONS OF THE STATUTES CITED SUPRA NOTES 20 AND
21. 

FN24  CF. NOTE 26 INFRA; COMPARE ALSO 41 STAT. 481-482; CHESAPEAKE &
OHIO RY. CO. V. UNITED STATES, 283 U.S. 35; MACVEAGH, THE
TRANSPORTATION ACT OF 1920(1923) 275-292. 

FN25  CF. NOTE 17 SUPRA. 

FN26  E.G., SENATOR WHEELER, IN CHARGE OF THE MEASURE IN THE SENATE,
SAID: 

"AT PRESENT MOST TRUCK OPERATIONS ARE SMALL ENTERPRISES.  HOWEVER,
THERE ARE MANY RUMORS OF PLANS FOR THE MERGING OF EXISTING OPERATIONS
INTO SIZABLE SYSTEMS.  IN VIEW OF PAST EXPERIENCE WITH RAILROAD AND
PUBLIC-UTILITY UNIFICATIONS, IT IS REGARDED AS NECESSARY THAT THE
COMMISSION HAVE CONTROL OVER SUCH DEVELOPMENTS, WHERE THE NUMBER OF
VEHICLES INVOLVED IS SUFFICIENT TO MAKE THE MATTER ONE OF MORE THAN
LOCAL IMPORTANCE."  79 CONG. REC. 5654-5655. 

FN27  E.G., TRACING SHIPMENTS AND SETTLEMENT OF CLAIMS WOULD BE
FACILITATED, CONGESTION AT SHIPPING PLATFORMS WOULD BE REDUCED, THE
AVERAGE LIFE OF THE EQUIPMENT WOULD BE LENGTHENED BY SCIENTIFIC
MAINTENANCE AND SAFETY PROGRAMS ON A LARGE SCALE, VEHICLES WOULD BE
SHIFTED QUICKLY TO MEET PEAK DEMANDS ON CERTAIN ROUTES, ETC. 

FN28  E.G., H. D. HORTON AND THE MEMBERS OF HIS FAMILY WILL OWN
14,917 SHARES OF ASSOCIATED'S PREFERRED STOCK AND 267,873 SHARES OF ITS
COMMON STOCK.  THE STOCKHOLDERS OF CONSOLIDATED ALSO WOULD OWN
SUBSTANTIALLY GREATER BLOCKS THAN THE 9,000 SHARES WHICH KUHN, LOEB AND
COMPANY CONTROLS. 

MR. JUSTICE MURPHY IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
REVERSED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING: 

I THINK THAT THE COMMISSION MISCONCEIVED ITS AUTHORITY UNDER THE
MERGER AND CONSOLIDATION PROVISIONS OF THE ACT.  I AGREE THAT THE
COMMISSION IS NOT TO MEASURE MOTOR VEHICLE CONSOLIDATIONS BY THE
STANDARDS OF THE ANTI-TRUST ACTS.  SUCH A CONSTRUCTION WOULD MAKE
LARGELY MEANINGLESS, AS THE OPINION OF THE COURT DEMONSTRATES, THE
POWER OF THE COMMISSION UNDER SEC. 5(11) TO RELIEVE PARTICIPANTS IN
MERGERS OR CONSOLIDATIONS FROM THE REQUIREMENTS OF THOSE ACTS.  BUT I
THINK A PROPER CONSTRUCTION OF THE ACT REQUIRES THE COMMISSION TO GIVE
GREATER WEIGHT TO THE PRINCIPLES OF COMPETITION THAN IT APPARENTLY HAS
DONE HERE. 

I AGREE THAT THE STANDARD OF THE "PUBLIC INTEREST" WHICH GOVERNS
MERGERS AND CONSOLIDATIONS UNDER SEC. 5 EMBRACES THE NATIONAL
TRANSPORTATION POLICY CONTAINED IN THE ACT.  THAT DECLARED POLICY
CALLS, AMONG OTHER THINGS, FOR THE RECOGNITION AND PRESERVATION OF "THE
INHERENT ADVANTAGES" OF MOTOR VEHICLE TRANSPORTATION; THE PROMOTION OF
"SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE" AND THE FOSTERING
OF "SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL
CARRIERS"; THE ESTABLISHMENT AND MAINTENANCE OF REASONABLE CHARGES
"WITHOUT UNJUST DISCRIMINATIONS, UNDUE PREFERENCE OR ADVANTAGES, OR
UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES" - TO THE END OF
"DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION
SYSTEM" WHICH IS "ADEQUATE TO MEET" THE NATIONAL NEEDS.  54 STAT. 899. 
THOSE STANDARDS ARE SPECIFICALLY REFERRED TO IN SEC. 5(2)(C) WHERE AN
ITEMIZATION OF SOME OF THE FACTORS TO WHICH THE COMMISSION SHALL GIVE
WEIGHT IS MADE.  AND THE PREAMBLE ITSELF STATES THAT "ALL OF THE
PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW
TO CARRYING OUT THE ABOVE DECLARATION OF POLICY." 

BUT I AM OF THE OPINION THAT THE CONCEPT OF THE "PUBLIC INTEREST" AS
USED IN SEC. 5 ALSO EMBRACES THE ANTI-TRUST LAWS.  THOSE LAWS EXTEND TO
CARRIERS AS WELL AS TO OTHER ENTERPRISES.  BUT FOR THE APPROVAL OF THE
COMMISSION THE PRESENT CONSOLIDATION WOULD RUN AFOUL OF THE SHERMAN
ACT.  UNITED STATES V. SOUTHERN PACIFIC CO., 259 U.S. 214.  AND THE
CLAYTON ACT (WHICH MAKES SPECIFIC REFERENCES TO COMMON CARRIERS) BY
SEC. 11 EXPRESSLY ENTRUSTS THE COMMISSION WITH THE AUTHORITY OF
ENFORCEMENT OF ITS PROVISIONS "WHERE APPLICABLE TO COMMON CARRIERS." 
38 STAT. 734, 15 U.S.C. SEC. 21.  THOSE LAWS STILL STAND.  WE THUS HAVE
A LONG STANDING POLICY OF CONGRESS TO SUBJECT THESE COMMON CARRIERS TO
THE ANTI-TRUST LAWS.  AND WE SHOULD REMEMBER THAT, SO FAR AS MOTOR
VEHICLES ARE CONCERNED, WE ARE DEALING WITH TRANSPORTATION UNITS WHOSE
RIGHTS OF WAY - THE HIGHWAYS OF THE COUNTRY - HAVE BEEN FURNISHED BY
THE PUBLIC.  THESE CONSIDERATIONS INDICATE TO ME THAT WHILE THE POWER
OF CONGRESS TO AUTHORIZE THE COMMISSION TO LIFT THE BAN OF THE ANTI
TRUST LAWS IN FAVOR OF COMMON CARRIERS IS CLEAR (NEW YORK CENTRAL
SECURITIES CORP. V. UNITED STATES, 287 U.S. 12, 25-26), ADMINISTRATIVE
AUTHORITY TO REPLACE THE COMPETITIVE SYSTEM WITH A CARTEL SHOULD BE
STRICTLY CONSTRUED.  I WOULD READ SEC. 5 OF THE TRANSPORTATION ACT SO
AS TO MAKE FOR THE GREATEST POSSIBLE ACCOMMODATION BETWEEN THE
PRINCIPLES OF COMPETITION AND THE NATIONAL TRANSPORTATION POLICY.  THE
OCCASIONS FOR THE EXERCISE OF THE ADMINISTRATIVE AUTHORITY TO GRANT
EXEMPTIONS FROM THE ANTI-TRUST LAWS SHOULD BE CLOSELY CONFINED TO THOSE
WHERE THE TRANSPORTATION NEED IS CLEAR. 

IF IT WERE THE OPINION OF THE COMMISSION THAT THE POLICY OF THE
TRANSPORTATION ACT WOULD BE THWARTED UNLESS A PARTICULAR TYPE OF MERGER
OR CONSOLIDATION WERE PERMITTED, I HAVE NO DOUBT THAT IT WOULD BE
AUTHORIZED TO LIFT THE BAN OF THE ANTI-TRUST LAWS.  BUT UNLESS SUCH
NECESSITY OR NEED WERE SHOWN I DO NOT THINK THE ANTI-TRUST LAWS SHOULD
BE MADE TO GIVE WAY.  CONGRESS DID NOT GIVE THE COMMISSION CARTE
BLANCHE AUTHORITY TO SUBSTITUTE A CARTEL FOR A COMPETITIVE SYSTEM.  IT
MAY SO ACT ONLY WHEN THAT STEP "WILL BE CONSISTENT WITH THE PUBLIC
INTEREST."  SEC. 5(2)(B).  BUT SINCE THE "PUBLIC INTEREST" INCLUDES THE
PRINCIPLES OF FREE ENTERPRISE, WHICH HAVE LONG DISTINGUISHED OUR
ECONOMY, I CAN HARDLY BELIEVE THAT CONGRESS INTENDED THEM TO BE SWEPT
ASIDE UNLESS THEY WERE IN FACT OBSTACLES TO THE REALIZATION OF THE
NATIONAL TRANSPORTATION POLICY.  BUT SO FAR AS WE KNOW FROM THE PRESENT
RECORD THAT POLICY MAY BE AS READILY ACHIEVED ON A COMPETITIVE BASIS AS
THROUGH THE PRESENT TYPE OF CONSOLIDATION.  AT LEAST SUCH A POWERFUL
COMBINATION OF COMPETITORS AS IS PRESENTLY PROJECTED IS NOT SHOWN TO BE
NECESSARY FOR THAT PURPOSE.  IN THIS CASE THE HAND OF THE PROMOTER
SEEMS MORE APPARENT THAN A TRANSPORTATION NEED.    FOR THESE REASONS I
WOULD RESOLVE THE AMBIGUITIES OF THE ACT IN FAVOR OF THE MAINTENANCE OF
FREE ENTERPRISE.  IF THAT IS TOO NIGGARDLY AN INTERPRETATION OF THE
ACT, CONGRESS CAN RECTIFY IT.  BUT IF THE COMMISSION IS ALLOWED TO TAKE
THE OTHER VIEW,  FN1  A PATTERN OF CONSOLIDATION WILL HAVE BEEN
APPROVED WHICH WILL ALLOW THE CARTEL RATHER THAN THE COMPETITIVE SYSTEM
TO DOMINATE THIS FIELD.  HISTORY SHOWS THAT IT IS NEXT TO IMPOSSIBLE TO
TURN BACK THE CLOCK ONCE SUCH A TREND GETS UNDER WAY. 

BUT THERE IS ANOTHER PHASE OF THE CASE WHICH IN MY VIEW REQUIRES A
REVERSAL OF THE JUDGMENT BELOW.  THE COMMISSION HAS ALLOWED THE
INVESTMENT BANKER OF RAILROAD COMPANIES TO BE REPRESENTED ON THE BOARD
OF THE MOTOR VEHICLE COMPANY.  IT DID SO AFTER A FINDING THAT IT WAS
NOT "REASONABLE TO BELIEVE THAT THE AFFAIRS OF APPLICANT WOULD BE
MANAGED IN THE INTEREST OF ANY RAILROAD" AND THEREFORE THAT THE MOTOR
VEHICLE COMPANY WOULD NOT BE AFFILIATED WITH ANY RAILROAD WITHIN THE
MEANING OF THE ACT.  SEC. 5(5)(A), (6).  BUT THOUGH WE ASSUME THERE WAS
NO SUCH AFFILIATION, I AGREE WITH COMMISSIONER PATTERSON THAT THAT IS
NOT THE END OF THE MATTER.  THE QUESTION STILL REMAINS WHETHER IT IS
"CONSISTENT WITH THE PUBLIC INTEREST" TO ALLOW SUCH A BANKER'S NEXUS
BETWEEN THE TWO COMPETITORS.  I CANNOT BELIEVE THAT CONGRESS INTENDED
THE COMMISSION TO TREAT SUCH A MATTER AS INCONSEQUENTIAL.  THE WHOLE
HISTORY OF FINANCE URGES CAUTION WHEN ONE INVESTMENT BANKER STAKES OUT
HIS CLAIM TO TWO COMPETING COMPANIES.  EXPERIENCE SHOWS THAT WHEN ONE
GAINS A SEAT AT HIS COMPETITOR'S TABLE, IT IS THE BEGINNING OF THE END
OF COMPETITION.  A NEW ZONE OF INFLUENCE HAS BEEN CREATED.  ITS
EFFICACY TURNS NOT ON THE AMOUNT OF STOCK OWNERSHIP BUT ON A HOST OF
SUBTLE AND IMPONDERABLE CONSIDERATIONS.  SUCH AN INTERTWINED
RELATIONSHIP HAS BEEN "THE ROOT OF MANY EVILS" (BRANDEIS, OTHER
PEOPLE'S MONEY, P. 51) AND SO DEMONSTRABLY INIMICAL TO THE "PUBLIC
INTEREST" IN THE PAST AS NOT TO BE DISREGARDED TODAY. 

I AGREE THAT IF SEC. 5 WERE READ AS THE COURT READS IT, THE ORDER OF
THE COMMISSION SHOULD BE AFFIRMED.  BUT SINCE THE COMMISSION TOOK A
VIEW OF THE LAW WHICH IN MY OPINION WAS ERRONEOUS, I WOULD REVERSE THE
JUDGMENT BELOW SO THAT THE CASE MIGHT BE RETURNED TO THE COMMISSION FOR
RECONSIDERATION OF THE APPLICATION UNDER THE PROPER CONSTRUCTION OF
SEC. 5. 

FN1  THE POSITION HERE TAKEN IS SUBSTANTIALLY THE VIEW WHICH
ORIGINALLY OBTAINED IN THE COMMISSION.  NORTHLAND-GREYHOUND LINES,
INC., 5 M.C.C. 123; RICHMOND-GREYHOUND LINES, INC., 35 M.C.C. 555.  BUT
THAT VIEW DID NOT LONG OBTAIN.  SEE NORTHLAND-GREYHOUND LINES, INC., 25
M.C.C. 109; RICHMOND-GREYHOUND LINES, INC., 36 M.C.C. 747.  AND SEE
MECK & BOGUE, FEDERAL REGULATION OF MOTOR CARRIER UNIFICATION, 50 YALE
L. JOURN.  1376, 1393-1397. 
..END :







DISTRICT OF COLUMBIA V. PACE, 320 U.S. 698 


NO. 117.  ARGUED DECEMBER 13, 1943.  - DECIDED JANUARY 10, 1944.  - 77
U.S. APP. D.C. 332, 135 F.2D 249, AFFIRMED. 


1.  UNDER THE ACT CREATING THE BOARD OF TAX APPEALS FOR THE DISTRICT
OF COLUMBIA, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA HAS
POWER TO REVIEW DECISIONS OF THE BOARD CONFORMABLY TO THE EQUITY
PRACTICE, THAT IS, ON BOTH THE FACTS AND THE LAW, SUBJECT TO THE RULE
THAT FINDINGS OF FACT ARE TREATED AS PRESUMPTIVELY CORRECT AND ARE
ACCEPTED UNLESS CLEARLY WRONG.  P. 702. 

2.  UPON REVIEW OF A DECISION OF THE BOARD OF TAX APPEALS FOR THE
DISTRICT OF COLUMBIA, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
HAD POWER TO SET ASIDE A FINDING BY THE BOARD THAT THE DOMICILE OF A
DECEDENT WAS IN THE DISTRICT OF COLUMBIA, WHICH THE COURT FOUND TO BE
CLEARLY WRONG, AND TO FIND THAT THE DOMICILE WAS IN FLORIDA.  P. 703. 

3.  THE PROVISIONS FOR REVIEW IN THE ACT CREATING THE BOARD OF TAX
APPEALS FOR THE DISTRICT OF COLUMBIA WERE NOT SUPERSEDED BY RULE 52 OF
THE RULES OF CIVIL PROCEDURE.  P. 702. 

DISTRICT OF COLUMBIA V. PACE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, POST, P. 726, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS FOR THE DISTRICT OF COLUMBIA SUSTAINING AN
INHERITANCE TAX. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

CHARLES F. PACE CAME TO THE DISTRICT OF COLUMBIA IN 1913 FROM
FLORIDA, WHERE HE HAD THERETOFORE BEEN DOMICILED.  HIS ONLY PURPOSE IN
COMING WAS TO ENTER THE FEDERAL SERVICE.  HE BECAME FINANCIAL CLERK OF
THE SENATE AND SERVED CONTINUOUSLY UNTIL HIS DEATH IN THE DISTRICT IN
1940.  DURING THESE TWENTY-SEVEN YEARS HE LIVED IN BOARDING HOUSES AND
IN RENTED APARTMENTS AND OWNED NO REAL PROPERTY IN THE DISTRICT.  AT
ALL TIMES HE MAINTAINED HIS REGISTRATION AND QUALIFICATION TO VOTE IN
THE STATE OF FLORIDA AND EXERCISED THAT RIGHT EITHER IN PERSON OR BY
ABSENTEE BALLOT.  HIS WILL, MADE IN 1937, RECITED THAT HE WAS "OF THE
CITY OF WASHINGTON, D.C."  IT WAS PROBATED IN FLORIDA, AND ANCILLARY
LETTERS WERE GRANTED IN THE DISTRICT TO THE RESPONDENT EXECUTRIX. 
DISTRICT AUTHORITIES, UPON THE PREMISE THAT PACE WAS DOMICILED IN THE
DISTRICT, ASSESSED AN INHERITANCE TAX UPON THE TRANSFER OF CERTAIN
JOINTLY OWNED BANK DEPOSITS WITHIN THE DISTRICT.  RESPONDENTS PAID THE
TAX UNDER PROTEST AND THEN APPEALED THE ASSESSMENT TO THE BOARD OF TAX
APPEALS OF THE DISTRICT ON THE GROUND THAT DECEDENT WAS DOMICILED IN
FLORIDA AT THE TIME OF HIS DEATH.  THE BOARD OF TAX APPEALS AFTER
HEARING ARGUMENT DETERMINED THAT DECEDENT WAS DOMICILED IN FLORIDA, AND
ORDERED REFUND OF THE TAX PAID.  THE DISTRICT APPEALED TO THE COURT OF
APPEALS, BUT BEFORE HEARING THIS COURT DECIDED DISTRICT OF COLUMBIA V.
MURPHY, 314 U.S. 441.  THE DISTRICT THEREUPON MOVED TO REMAND THE CASE
TO THE BOARD OF TAX APPEALS FOR RECONSIDERATION IN THE LIGHT OF THE
INTERVENING DECISION.  THE MOTION WAS GRANTED.  UPON RECONSIDERATION
THE BOARD RE-ADOPTED THE FINDINGS THERETOFORE MADE BUT CONCLUDED THAT
THE DECEDENT HAD NOT OVERCOME THE PRESUMPTION, ARISING FROM MAINTAINING
A HOME IN THE DISTRICT, THAT HE WAS DOMICILED THEREIN, AND REVERSED ITS
FORMER RULING. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA REVERSED.  IT
ACCEPTED AND APPLIED OUR DECISION IN DISTRICT OF COLUMBIA V. MURPHY
AND, WEIGHING THE FACTS IN THE LIGHT OF ITS PRINCIPLES, CONCLUDED THAT
THE DECEDENT WAS DOMICILED IN FLORIDA AT THE TIME OF HIS DEATH.  THE
EVIDENCE BEFORE THE BOARD OF TAX APPEALS TOOK A WIDE RANGE, AND WE DO
NOT THINK IT IS NECESSARY TO RECITE IT IN DETAIL.  AS IS USUAL IN CASES
OF CONTESTED DOMICILE, IT GAVE RISE TO CONFLICTING INFERENCES, AND A
DECISION EITHER WAY WOULD BE SUPPORTED BY SUBSTANTIAL EVIDENCE. 
WHETHER THE BOARD'S DETERMINATION OR THAT OF THE COURT OF APPEALS
SHOULD BE DEEMED CORRECT WOULD DEPEND UPON THE WEIGHT TO BE GIVEN TO
MANY DIFFERENT ITEMS OF EVIDENCE, THE CREDIBILITY TO BE GIVEN TO
TESTIMONY, AND THE INFERENCES TO BE DRAWN FROM MANY ADMITTED EVENTS. 
WE DID NOT TAKE THIS CASE TO DETERMINE WHERE MR. PACE WAS DOMICILED. 
BUT THE SCOPE OF REVIEW OF DECISIONS BY THE BOARD OF TAX APPEALS OF THE
DISTRICT OF COLUMBIA IS IMPORTANT TO THE ADMINISTRATION OF THE
DISTRICT'S TAX LAWS, AND SINCE THAT QUESTION WAS NOT REACHED OR DECIDED
IN DISTRICT OF COLUMBIA V. MURPHY, WE GRANTED CERTIORARI IN THIS CASE. 

CONGRESS HAS SEEN FIT IN CERTAIN OF THE DISTRICT'S TAX STATUTES TO
MAKE LIABILITY DEPENDENT UPON DOMICILE.  IN THE DISTRICT, WHERE A LARGE
PROPORTION OF THE POPULATION OWE THEIR PRESENCE TO GOVERNMENT SERVICE
AND HAVE THE STRONGEST MOTIVES FOR RETAINING THEIR POLITICAL
CONNECTIONS WITH AND DOMICILE IN THE ENFRANCHISED COMMUNITY FROM WHICH
THEY CAME, THIS TEST OF TAXABILITY IS BOUND TO GIVE RISE TO INNUMERABLE
AND DIFFICULT CONFLICTS.  THESE THE BOARD OF TAX APPEALS IS AUTHORIZED
IN THE FIRST INSTANCE TO RESOLVE. 

THE PROVISIONS FOR REVIEW OF BOARD OF TAX APPEALS DECISIONS PRESENT
COMPLEXITIES ALMOST AS BAFFLING AS THE TEST OF TAXABILITY ITSELF. 
DISTRICT OF COLUMBIA PROVIDES THAT ITS DECISIONS MAY BE REVIEWED BY THE
COURT OF APPEALS AND THAT UPON SUCH REVIEW THE COURT "SHALL HAVE THE
POWER TO AFFIRM, OR IF THE DECISION OF THE BOARD IS NOT IN ACCORDANCE
WITH LAW, TO MODIFY OR REVERSE THE DECISION OF THE BOARD, WITH OR
WITHOUT REMANDING THE CASE FOR HEARING, AS JUSTICE MAY REQUIRE."  52
STAT. 371, D.C. CODE (1940) SEC. 47-2404(A).  HAD THIS BEEN ALL, A
STRONG CASE WOULD BE MADE FOR APPLYING THE RULE OF FINALITY APPLICABLE
TO THE FEDERAL BOARD OF TAX APPEALS, NOW THE TAX COURT OF THE UNITED
STATES.  DOBSON V. COMMISSIONER, ANTE, P. 489.  HOWEVER, THE SAME
ORGANIC ACT CONTAINS ANOTHER AND QUALIFYING PROVISION THAT IS NOT TO BE
FOUND IN THE ACTS CREATING THE TAX COURT:  "THE FINDINGS OF FACT BY THE
BOARD SHALL HAVE THE SAME EFFECT AS A FINDING OF FACT BY AN EQUITY
COURT OR A VERDICT OF A JURY."  52 STAT. 371, D.C. CODE (1940) SEC. 47
2404(A).  SINCE FINDINGS OF FACT BY AN EQUITY COURT AND THE VERDICT OF
A JURY HAVE FROM TIME IMMEMORIAL BEEN SUBJECT TO DIFFERENT RULES OF
FINALITY IT IS PUZZLING TO KNOW WHAT THE DRAFTSMEN OF THIS SECTION
MEANT BY INCLUDING BOTH IN THE ONE RULE FOR REVIEWING BOARD OF TAX
APPEALS FINDINGS. 

THIS STATUTE WAS ENACTED IN MAY, 1938.  THE LAW AT THAT TIME AS TO
THE REVIEW OF FINDINGS OF FACT IN EQUITY WAS, AS STATED BY MR. JUSTICE
BRANDEIS FOR THE COURT, "IN EQUITY, MATTERS OF FACT AS WELL AS OF LAW
ARE REVIEWABLE  ..."  VIRGINIA RY. CO. V. UNITED STATES, 272 U.S. 658,
675.  FINDINGS OF FACT BY THE TRIAL JUDGE OF COURSE WERE PRESUMPTIVELY
CORRECT AND WERE ACCEPTED BY REVIEWING COURTS UNLESS CLEARLY WRONG. 
BUTTE & SUPERIOR COPPER CO. V. CLARK-MONTANA REALTY CO., 249 U.S. 12,
30.  THIS RULE, HOWEVER, DID NOT DENY POWER TO THE CIRCUIT COURT OF
APPEALS TO REVIEW FACTS, BUT RATHER WENT TO THE WEIGHT TO BE ACCORDED
TO THE FINDINGS OF A LOWER COURT AND HAD SPECIAL PERTINENCE WHERE
CREDIBILITY OF WITNESSES WAS INVOLVED.  THIS COURT HAD A WELL-SETTLED
RULE THAT "WHEN TWO COURTS HAVE REACHED THE SAME CONCLUSION ON A
QUESTION OF FACT, THEIR FINDING WILL NOT BE DISTURBED UNLESS IT IS
CLEAR THAT THEIR CONCLUSION WAS ERRONEOUS."  BAKER V. SCHOFIELD, 243
U.S. 114, 118.  SUCH A RULE WOULD HAVE NO SUPPORT IN REASON IF THE
SECOND COURT COULD NOT MAKE ITS FINDINGS AS A RESULT OF ITS OWN
JUDGMENT. 

THE STATUTE THEREFORE AUTHORIZES REVIEW OF FINDINGS OF FACT OF THE
BOARD OF TAX APPEALS OF THE DISTRICT OF COLUMBIA, SUBJECT TO THE
ADMONITION THAT THEY ARE TO BE UNDISTURBED UNLESS CLEARLY WRONG, IF THE
FINDINGS ARE GIVEN THE EFFECT OF FINDINGS OF FACT BY AN EQUITY COURT. 
IF THE EFFECT OF THE JURY VERDICT, PROVIDED FOR IN THE SAME SENTENCE,
IS TO PREVAIL, THE REVIEW IS MUCH MORE RESTRICTED.  THE QUESTION AS TO
WHICH OF THE INCONSISTENT PROVISIONS SHALL GOVERN ARISES IN A LOCAL
STATUTE CONFINED IN ITS OPERATION TO THE DISTRICT OF COLUMBIA.  "WE
WILL NOT ORDINARILY REVIEW DECISIONS OF THE UNITED STATES COURT OF
APPEALS, WHICH ARE BASED UPON STATUTES SO LIMITED OR WHICH DECLARE THE
COMMON LAW OF THE DISTRICT."  DEL VECCHIO V. BOWERS, 296 U.S. 280,
285.  CF. AMERICAN SECURITY & TRUST CO. V. DISTRICT OF COLUMBIA, 224
U.S. 491; UNITED SURETY CO. V. AMERICAN FRUIT PRODUCT CO., 238 U.S.
140.  WHERE A LOCAL STATUTE CONTAINS A CONFLICT ON ITS FACE AS PATENT
AND AS IRRECONCILABLE AS THIS, WHERE EITHER CHOICE SEEMS EQUALLY
SUPPORTABLE, WE CANNOT SAY THAT THE COURT OF APPEALS COMMITS ERROR IN
ASSUMING ITS REVIEW OF THE BOARD OF TAX APPEALS DECISION TO BE ENTITLED
TO THE SCOPE OF A REVIEW OF AN EQUITY COURT. 

AFTER THE BOARD OF TAX APPEALS STATUTE, FEDERAL RULE OF CIVIL
PROCEDURE NO. 52 WAS ADOPTED, EFFECTIVE SEPTEMBER 1, 1938.  IT PROVIDED
AS TO ALL ACTIONS TRIED UPON THE FACTS WITHOUT A JURY: "FINDINGS OF
FACT SHALL NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, AND DUE REGARD
SHALL BE GIVEN TO THE OPPORTUNITY OF THE TRIAL COURT TO JUDGE OF THE
CREDIBILITY OF THE WITNESSES."  THIS GENERAL RULE, EVEN IF IT WERE
THOUGHT TO MODIFY THE PREVIOUS RULE AS TO REVIEW OF FINDINGS OF FACT IN
EQUITY CASES, WOULD HARDLY SUPERSEDE A SPECIAL STATUTORY MEASURE OF
REVIEW APPLICABLE TO A SPECIAL AND LOCAL TRIBUNAL. 

WE CONCLUDE, THEREFORE, THAT THE COURT OF APPEALS HAS POWER TO REVIEW
DECISIONS OF THE BOARD OF TAX APPEALS AS UNDER THE EQUITY PRACTICE IN
WHICH THE WHOLE CASE, BOTH FACTS AND LAW, IS OPEN FOR CONSIDERATION IN
THE APPELLATE COURT, SUBJECT TO THE LONG-STANDING RULE THAT FINDINGS OF
FACT ARE TREATED AS PRESUMPTIVELY CORRECT AND ARE ACCEPTED UNLESS
CLEARLY WRONG.  THE COURT OF APPEALS THEREFORE HAD POWER TO SET ASIDE
THE DETERMINATION OF THE BOARD OF TAX APPEALS IF CONVINCED, AS IT WAS,
THAT THE BOARD WAS CLEARLY WRONG.  WE ARE NOT CALLED UPON TO SEPARATE
FACTUAL FROM LEGAL GROUNDS OF DECISION AND TO DETERMINE IF REVERSAL OF
THE BOARD OF TAX APPEALS BY THE COURT OF APPEALS COULD STAND ON
QUESTIONS OF LAW ALONE.  THE JUDGMENT THEREFORE IS AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE RUTLEDGE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :












ILLINOIS STEEL CO. V. B. & O.R. CO., 320 U.S. 508 


NO. 99.  ARGUED DECEMBER 16, 1943.  - DECIDED JANUARY 3, 1944.  - 316
ILL. APP. 516, 46 N.E.2D 144, REVERSED. 


1.  A STATE COURT DECISION INTERPRETING CLAUSES OF A UNIFORM BILL OF
LADING PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION UNDER AUTHORITY
OF THE INTERSTATE COMMERCE ACT, IN A SUIT BY A CARRIER TO RECOVER
CHARGES FOR AN INTERSTATE SHIPMENT, IS REVIEWABLE HERE BY CERTIORARI
UNDER JUD.  CODE SEC. 237(B).  P. 511. 

2.  THE CONSIGNOR OF AN INTERSTATE SHIPMENT UPON A UNIFORM BILL OF
LADING STIPULATED THAT CHARGES WERE "TO BE PREPAID" AND ALSO SIGNED THE
"NON-RECOURSE" CLAUSE.  BECAUSE OF THE MANNER IN WHICH THE SHIPMENT WAS
HANDLED BY THE CONSIGNEE UPON DELIVERY, A HIGHER RATE THAN THAT
SPECIFIED IN THE BILL OF LADING BECAME APPLICABLE.  HELD THAT THE
CARRIER WAS NOT ENTITLED TO RECOVER THE ADDITIONAL CHARGES FROM THE
CONSIGNOR.  P. 515. 

WITH RESPECT TO THE CHARGES HERE, THE PREPAYMENT CLAUSE DID NOT,
EITHER BY ITS DESIGN OR BY THE INTENTION OF THE PARTIES, CURTAIL THE
OPERATION OF THE "NON-RECOURSE" CLAUSE.  P. 515. 

3. A CARRIER MAY INSURE COLLECTION OF UNANTICIPATED FREIGHT CHARGES
BY DEMANDING, PURSUANT TO SEC. 7 OF THE CONDITIONS OF THE UNIFORM BILL
OF LADING, THE CONSIGNOR'S GUARANTEE OF ALL CHARGES.  P. 515. 

ILLINOIS STEEL CO. V. BALTIMORE & OHIO RAILROAD CO. 

CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT. 

CERTIORARI, POST, P. 721, TO REVIEW A JUDGMENT WHICH REVERSED A
JUDGMENT FOR THE DEFENDANT IN A SUIT TO RECOVER FREIGHT CHARGES.  LEAVE
TO APPEAL TO THE HIGHEST COURT OF THE STATE WAS DENIED BY THAT COURT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

DECISION IN THIS CASE TURNS ON THE PROPER INTERPRETATION TO BE GIVEN
TO SEVERAL CLAUSES OF THE UNIFORM BILL OF LADING APPROVED BY THE
INTERSTATE COMMERCE COMMISSION AS AUTHORIZED BY SECS. 1(6), 12 AND
15(1) OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. SECS. 1(6),
12, 15(1), WHICH MAKE IT THE DUTY OF INTERSTATE RAIL CARRIERS TO ADOPT
AND OBSERVE THE FORM AND SUBSTANCE OF BILLS OF LADING APPROVED BY THE
COMMISSION.  MATTER OF BILLS OF LADING, 52 I.C.C. 671, 685, 686; 64
I.C.C. 347, 351-352; 64 I.C.C. 357; 66 I.C.C. 63; 167 I.C.C. 214; 172
I.C.C. 362; 245 I.C.C. 527. 

PETITIONER WAS THE CONSIGNOR UPON THROUGH BILLS OF LADING OF A NUMBER
OF RAIL SHIPMENTS OF SULPHATE OF AMMONIA FOR EXPORT.  THE SHIPMENTS
WERE FROM GARY, INDIANA TO BALTIMORE, MARYLAND OVER THE LINES OF
CONNECTING RAILROADS, OF WHICH RESPONDENT WAS THE TERMINAL CARRIER. 
EACH BILL OF LADING  FN1  CONTAINED A CLAUSE, INSERTED BY PETITIONER,
THE CONSIGNOR, IN CONFORMITY TO INSTRUCTIONS APPEARING ON THE BILL, AND
PROVIDING THAT FREIGHT WAS "TO BE PREPAID"; AND ALSO THE SO-CALLED NON
RECOURSE CLAUSE WHICH PETITIONER SIGNED AND WHICH READ:  "IF THIS
SHIPMENT IS TO BE DELIVERED TO THE CONSIGNEE WITHOUT RECOURSE ON THE
CONSIGNOR, THE CONSIGNOR SHALL SIGN THE FOLLOWING STATEMENT:  THE
CARRIER SHALL NOT MAKE DELIVERY OF THIS SHIPMENT WITHOUT PAYMENT OF
FREIGHT AND ALL OTHER LAWFUL CHARGES.  (SEE SECTION 7 OF CONDITIONS.)" 
FN2  PETITION AT SHIPMENT PAID THE FREIGHT CHARGES SPECIFIED IN THE
BILLS OF LADING, WHICH WERE COMPUTED AT THE EXPORT FREIGHT RATE.  THE
BILLS OF LADING INCLUDED A RECEIPT FOR SPECIFIED SUMS PAID TO THE
CARRIER "TO APPLY IN PREPAYMENT OF THE CHARGES."  THE RECORD DOES NOT
DISCLOSE WHO WAS THE OWNER OF THE SULPHATE, OR WHAT FURTHER RELATIONS
EXISTED BETWEEN CONSIGNOR AND CONSIGNEE. 

THE PARTIES CONCEDE THAT UPON DELIVERY OF THE SHIPMENTS AT BALTIMORE,
THE CONSIGNEE DID NOT HANDLE THE SULPHATE AS REQUIRED BY THE PROVISIONS
OF THE EXPORT TARIFF, AND THAT THE DELIVERY OR THE METHOD OF HANDLING
SUBJECTED THE SHIPMENTS TO THE HIGHER DOMESTIC FREIGHT RATE.  THE
PARTIES HAVE ALSO STIPULATED THAT RESPONDENT IS ENTITLED TO RECOVER
FROM PETITIONER, ADDITIONAL FREIGHT CHARGES TO THE EXTENT OF THE
DIFFERENCE BETWEEN THE EXPORT RATE AND THE HIGHER DOMESTIC RATE, UNLESS
RECOVERY IS BARRED BY THE CLAUSES OF THE BILLS OF LADING TO WHICH WE
HAVE REFERRED. 

RESPONDENT BROUGHT THE PRESENT SUIT IN THE ILLINOIS SUPERIOR COURT TO
RECOVER THE ADDITIONAL FREIGHT DUE UPON THE SHIPMENTS.  THE SUPERIOR
COURT GAVE JUDGMENT FOR PETITIONER, WHICH THE ILLINOIS APPELLATE COURT
REVERSED, 316 ILL. APP. 516, 46 N.E.2D 144, AND THE ILLINOIS SUPREME
COURT DENIED LEAVE TO APPEAL.  WE GRANTED CERTIORARI, POST, P. 721, THE
INTERPRETATION OF THE UNIFORM BILL OF LADING IN THE CIRCUMSTANCES OF
THIS CASE BEING A QUESTION OF PUBLIC IMPORTANCE. 

PURSUANT TO CONGRESSIONAL AUTHORITY, THE INTERSTATE COMMERCE
COMMISSION HAS PRESCRIBED UNIFORM FORMS OF BILLS OF LADING, INCLUDING
THAT INVOLVED IN THIS CASE.  MATTER OF BILLS OF LADING, SUPRA.  IN
PROMULGATING THEM, THE COMMISSION HAS STATED THAT IT WAS DOING SO IN
THE INTEREST OF UNIFORMITY AND TO PREVENT DISCRIMINATIONS.  52 I.C.C.
671, 676-677, 678; 64 I.C.C. 357, 363, 364.  IT HAS FOUND THAT THE
PRESCRIBED FORMS ARE JUST AND REASONABLE, 52 I.C.C. 671, 740, AND THAT
ANY OTHER WOULD BE UNREASONABLE, 64 I.C.C. 357, 360-361, 364. 

THE CONSTRUCTION OF THE CLAUSES OF A BILL OF LADING, ADOPTED BY THE
COMMISSION AND PRESCRIBED BY CONGRESS FOR INTERSTATE RAIL SHIPMENTS,
PRESENTS A FEDERAL QUESTION.  GEORGIA, F. & A. RY. CO. V. BLISH MILLING
CO., 241 U.S. 190, 194-195; CHESAPEAKE & OHIO RY. CO. V. MARTIN, 283
U.S. 209, 212-213.  SUCH HAS BEEN THE CONSISTENT RULING OF THIS COURT
WHERE THE QUESTION PRESENTED CONCERNED THE CONDITIONS IN BILLS OF
LADING AFFECTING THE LIABILITY OF THE CARRIER SUCH AS ARE REQUIRED BY
THE CARMACK AMENDMENT, AS AMENDED, 49 U.S.C. SEC. 20(11).  GEORGIA, F.
& A. RY. CO. V. BLISH MILLING CO., SUPRA; ATCHISON, T. & S.F. RY. CO.
V. HAROLD, 241 U.S. 371; ST. LOUIS, I.M. & S. RY. CO. V. STARBIRD, 243
U.S. 592; GULF, C. & S.F. RY. CO. V. TEXAS PACKING CO., 244 U.S. 31,
34; AMERICAN RAILWAY EXPRESS CO. V. LINDENBURG, 260 U.S. 584;
CHESAPEAKE & OHIO RY. CO. V. MARTIN, SUPRA; CF. PEYTON V. RAILWAY
EXPRESS AGENCY, 316 U.S. 350. 

SINCE THE CLAUSES OF THE UNIFORM BILL OF LADING GOVERN THE RIGHTS OF
THE PARTIES TO AN INTERSTATE SHIPMENT AND ARE PRESCRIBED BY CONGRESS
AND THE COMMISSION IN THE EXERCISE OF THE COMMERCE POWER, THEY HAVE THE
FORCE OF FEDERAL LAW AND QUESTIONS AS TO THEIR MEANING ARISE UNDER THE
LAWS AND CONSTITUTION OF THE UNITED STATES.  HENCE WE HAVE JURISDICTION
TO REVIEW THEIR DETERMINATION BY THE STATE COURTS, IN A SUIT BY THE
CARRIER TO RECOVER FREIGHT CHARGES.  JUDICIAL CODE SEC. 237(B), 28
U.S.C. SEC. 344(B); PITTSBURGH, C., C. & ST. L. RY. CO. V. FINK, 250
U.S. 577, 581-583; NEW YORK CENTRAL & H.R.R. CO. V. YORK & WHITNEY CO.,
256 U.S. 406, 408; CF. SOLA ELECTRIC CO. V. JEFFERSON CO., 317 U.S.
173, 176-177; PEYTON V. RAILWAY EXPRESS AGENCY, SUPRA; SOUTHERN RAILWAY
CO. V. PRESCOTT, 240 U.S. 632, 639-640. 

THE SHIPMENTS BY PETITIONER BEING IN INTERSTATE COMMERCE, THE RAIL
FREIGHT RATES ARE THOSE STATED IN THE TARIFFS FILED WITH THE INTERSTATE
COMMERCE COMMISSION.  THEY CANNOT BE LAWFULLY RELEASED BY THE CARRIER
OR ALTERED BY OTHERS WHO HAVE ASSUMED THE DUTY TO PAY THEM.  SEE
MIDSTATE HORTICULTURAL CO. V. PENNSYLVANIA R. CO., ANTE, P. 356;
PITTSBURGH, C., C. & ST. L. RY. CO. V. FINK, SUPRA, 581-583.  THE
TARIFFS DO NOT PRESCRIBE WHO IS TO PAY THE FREIGHT CHARGES, BUT SUBJECT
TO THE PROHIBITION AGAINST UNLAWFUL DISCRIMINATION AND THE LIMITATIONS
IMPOSED BY THE UNIFORM BILL OF LADING, THE PARTIES TO THE SHIPMENT, AS
BETWEEN THEMSELVES, ARE FREE TO STIPULATE WHO SHALL PAY THEM.  SEE
LOUISVILLE & NASHVILLE R. CO. V. CENTRAL IRON CO., 265 U.S. 59, 65-67. 

THAT THE OWNER OR CONSIGNEE SHALL PAY THE FREIGHT AND ALL OTHER LAWFUL
CHARGES UPON THE TRANSPORTED PROPERTY, AND EXCEPT IN THOSE INSTANCES
WHERE IT MAY BE LAWFULLY AUTHORIZED TO DO SO, THAT NO RAILROAD CARRIER
SHALL DELIVER OR RELINQUISH, AT DESTINATION, POSSESSION OF THE PROPERTY
COVERED BY THE BILL OF LADING UNTIL ALL TARIFF RATES AND CHARGES HAVE
BEEN PAID.  CF. SEC. 3(2) OF THE INTERSTATE COMMERCE ACT, AS AMENDED,
49 U.S.C. SEC. 3(2).  BUT IT FURTHER PROVIDES THAT "THE CONSIGNOR SHALL
BE LIABLE FOR THE FREIGHT AND ALL OTHER LAWFUL CHARGES, EXCEPT THAT IF
THE CONSIGNOR STIPULATES, BY SIGNATURE, IN THE SPACE PROVIDED FOR THAT
PURPOSE ON THE FACE OF THIS BILL OF LADING THAT THE CARRIER SHALL NOT
MAKE DELIVERY WITHOUT REQUIRING PAYMENT OF SUCH CHARGES AND THE
CARRIER, CONTRARY TO SUCH STIPULATION, SHALL MAKE DELIVERY WITHOUT
REQUIRING SUCH PAYMENT, THE CONSIGNOR (EXCEPT AS HEREINAFTER PROVIDED)
FN3  SHALL NOT BE LIABLE FOR SUCH CHARGES.  ...  NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE CARRIER TO REQUIRE AT TIME OF SHIPMENT THE
PREPAYMENT OR GUARANTEE OF THE CHARGES.  ..." 

UNDER THESE PROVISIONS, IF THE NON-RECOURSE CLAUSE IS NOT SIGNED BY
THE CONSIGNOR, HE REMAINS LIABLE TO THE CARRIER FOR ALL LAWFUL
CHARGES.  THE CARRIER IS FREE TO DEMAND PAYMENT IN ADVANCE BY THE
CONSIGNOR, OR IT MAY DECLINE TO MAKE DELIVERY TO THE CONSIGNEE UNTIL
THE FREIGHT CHARGES ARE PAID OR GUARANTEED, OR IF DELIVERY IS MADE TO
THE CONSIGNEE WITHOUT PAYMENT, THE CONSIGNEE IS ALSO LIABLE FOR ALL
FREIGHT CHARGES.  BUT IF THE NON-RECOURSE CLAUSE IS SIGNED BY THE
CONSIGNOR AND NO PROVISION IS MADE FOR PREPAYMENT OF FREIGHT, DELIVERY
OF THE SHIPMENT TO THE CONSIGNEE RELIEVES THE CONSIGNOR OF LIABILITY,
SEE LOUISVILLE & NASHVILLE R. CO. V. CENTRAL IRON CO., SUPRA, 66, N. 3,
AND ACCEPTANCE OF THE DELIVERY ESTABLISHES THE LIABILITY OF THE
CONSIGNEE TO PAY ALL FREIGHT CHARGES.  PITTSBURGH, C., C. & ST. L. RY.
CO. V. FINK, SUPRA; NEW YORK CENTRAL & H.R.R. CO. V. YORK & WHITNEY
CO., SUPRA. 

IN THE LIGHT OF THESE LONG-ESTABLISHED RULES OF LIABILITY THE FACTS
OF THE PRESENT CASE RAISE ONLY A SINGLE QUESTION, WHETHER THE
STIPULATION IN THE BILLS OF LADING FOR THE PREPAYMENT OF FREIGHT
RESTRICTS THE OPERATION OF THE NON-RECOURSE CLAUSE SO THAT, DESPITE ITS
PRESENCE IN THE BILLS OF LADING, RECOURSE MAY BE HAD TO PETITIONER FOR
CHARGES IN ADDITION TO THOSE WHICH IT PREPAID AT SHIPMENT, THE
ADDITIONAL CHARGES ARISING ONLY BY REASON OF EVENTS WHICH OCCURRED ON
OR AFTER THE DELIVERY OF THE SHIPMENTS TO THE CONSIGNEE. 

THE ILLINOIS APPELLATE COURT THOUGHT, AND RESPONDENT ARGUES HERE,
THAT THIS LIABILITY WAS IMPOSED ON THE CONSIGNOR ONLY BECAUSE THE
PREPAYMENT CLAUSE WAS SO IN CONFLICT WITH THE NON-RECOURSE CLAUSE AS TO
NULLIFY THE LATTER AND THUS REVIVE THE OBLIGATION WHICH, IN THE ABSENCE
OF THAT CLAUSE, RESTS ON THE CONSIGNOR TO PAY ALL LAWFUL CHARGES ON HIS
SHIPMENTS.  THE QUESTION IS WHETHER THERE IS SUCH A CONFLICT AS TO
REQUIRE THIS RESULT.  FOR WE MUST ASSUME THAT BOTH CLAUSES WERE
INTENDED BY THE PARTIES TO HAVE SOME EFFECT, AND HENCE, UNLESS
UNAVOIDABLY IN CONFLICT, THEY MUST, SO FAR AS THEY REASONABLY MAY, BE
RECONCILED SO THAT EACH WILL HAVE SOME SCOPE FOR OPERATION. 

THE OBVIOUS PURPOSE AND EFFECT OF THE NON-RECOURSE CLAUSE IS TO
RELIEVE THE SHIPPER FROM LIABILITY FOR FREIGHT CHARGES, UPON DELIVERY
TO THE CONSIGNEE.  SUCH A PURPOSE IS CONSISTENT WITH AN INTENTION THAT
IN CASE OF PREPAYMENT OF A PORTION OF THE FREIGHT CHARGE, THE CARRIER
SHOULD, AFTER DELIVERY, LOOK SOLELY TO THE CONSIGNEE FOR THE REMAINDER
OF THE CHARGE.  SINCE, BY THE UNIFORM BILL OF LADING, THE PARTIES TO A
RAIL SHIPMENT ARE LEFT FREE TO RELIEVE THE CONSIGNOR FROM LIABILITY BY
THEIR CONTRACT, SUCH AN ARRANGEMENT WOULD BE WITHIN THEIR COMPETENCE
AND WOULD RELEASE THE CONSIGNOR FROM LIABILITY TO THE EXTENT OF THE
UNPAID FREIGHT CHARGES. 

IT COULD NOT BE SAID THAT BY AGREEING TO PAY A PART OF THE CHARGES IN
ADVANCE, THE CONSIGNOR HAS AGREED TO PAY MORE, OR THAT THE NON-RECOURSE
CLAUSE WOULD CEASE TO BE EFFECTIVE AS TO THE UNPAID CHARGES BECAUSE THE
CONSIGNOR HAD PAID OR UNDERTAKEN TO PAY SOME OF THEM.  THE WORDS OF
SEC. 7 OF THE CONDITIONS OF THE BILL OF LADING ARE TO THE EFFECT THAT
IF THE CONSIGNOR STIPULATES THAT THE CARRIER SHALL NOT DELIVER "WITHOUT
REQUIRING PAYMENT OF SUCH CHARGES" AND THE CARRIER MAKES DELIVERY, THE
CONSIGNOR "SHALL NOT BE LIABLE FOR SUCH CHARGES."  IN THIS CONTEXT,
"SUCH CHARGES" ARE THE LAWFUL CHARGES WHICH THE CONSIGNOR HAS NOT PAID
OR STIPULATED TO PAY IN ADVANCE. 

WE DISCERN NO POLICY UNDERLYING THE UNIFORM BILL OF LADING OR IN THE
PROVISIONS OF SEC. 7 WHICH WOULD DENY THE APPLICATION OF THE NON
RECOURSE CLAUSE WHERE THE CONSIGNOR HAS STIPULATED FOR ADVANCE PAYMENT
OF SOME BUT LESS THAN ALL OF THE LAWFUL CHARGES.  AND NO PLAUSIBLE
REASON IS ADVANCED WHY AN AGREEMENT BY THE CONSIGNOR TO PAY A PART OF
THE LAWFUL CHARGES SHOULD BE DEEMED TO DEPRIVE HIM OF THE BENEFIT OF
THE NON-RECOURSE CLAUSE BEYOND THE AMOUNT HE HAS UNDERTAKEN TO PAY. 

WE THINK THAT THE SAME CONSIDERATIONS POINT HERE TO THE
RECONCILIATION OF THE CONFLICT WHICH THE ILLINOIS COURT THOUGHT TO
EXIST IN THIS CASE.  FOR IN THE PRESENT CIRCUMSTANCES WE CANNOT SAY
THAT THE PREPAYMENT CLAUSE CONTEMPLATED PAYMENT BY THE CONSIGNOR OF THE
ADDITIONAL CHARGES DEMANDED AT THE DOMESTIC TARIFF RATE AND HENCE WE
FIND NO IRRECONCILABLE CONFLICT BETWEEN THE PREPAYMENT AND NON-RECOURSE
CLAUSES. 

PETITIONER'S STIPULATION WAS THAT THE FREIGHT CHARGES WERE "TO BE
PREPAID" AND THE BILL OF LADING ACKNOWLEDGED RECEIPT OF SPECIFIED SUMS
"TO APPLY IN PREPAYMENT OF THE CHARGES."  HENCE THE STIPULATION WAS FOR
AN OBLIGATION TO BE PERFORMED IN ADVANCE OF THE TRANSPORTATION OR AT
THE MOST IN ADVANCE OF DELIVERY TO THE CONSIGNEE.  THIS OBLIGATION
COULD NOT HAVE CONTEMPLATED PAYMENT OF MORE THAN ALL THE LAWFUL CHARGES
UPON THE CONSIGNOR'S SHIPMENT AS TENDERED AND TRANSPORTED IN CONFORMITY
TO THE BILLING.  NO MORE COULD PREPAYMENT BE MADE, BEFORE EITHER
SHIPMENT OR DELIVERY, OF A CHARGE WHICH MIGHT NEVER BE INCURRED, AND
WHICH COULD BE, ONLY AFTER THE TRANSPORTATION WAS COMPLETED AND
DELIVERY MADE TO THE CONSIGNEE. 

IT IS FAMILIAR EXPERIENCE, AS IN THIS CASE, THAT UNDERCHARGES MAY
OCCUR WHICH COULD NOT BE SUBJECT TO PREPAYMENT EITHER BECAUSE THEY ARE
NOT LAWFUL CHARGES ON THE SHIPMENT AS TENDERED AND BILLED, OR BECAUSE
THEY DEPEND UPON EVENTS OCCURRING AFTER THE TRANSPORTATION HAS BEEN
COMPLETED.  IN EITHER CASE WE CONCLUDE THAT THE REASONABLE CONSTRUCTION
OF THE PREPAYMENT CLAUSE IS THAT, WITH RESPECT TO THESE CHARGES, IT DID
NOT, EITHER BY ITS DESIGN OR BY THE INTENTION OF THE PARTIES, CURTAIL
THE OPERATION OF THE NON-RECOURSE CLAUSE, SO AS TO DEPRIVE PETITIONER,
THE CONSIGNOR, OF THE IMMUNITY FROM LIABILITY FOR WHICH IT WAS ENTITLED
TO STIPULATE BY THE NON-RECOURSE CLAUSE.  SEE CHICAGO GREAT WESTERN RY.
CO. V. HOPKINS, 48 F.SUPP.  60.  THIS CONSTRUCTION DOES NOT LEAVE THE
CARRIER UNPROTECTED WITH RESPECT TO THE COLLECTION OF UNANTICIPATED
FREIGHT CHARGES, FOR IT MAY ALWAYS INSURE THEIR COLLECTION BY DEMANDING
THE CONSIGNOR'S GUARANTEE OF ALL CHARGES, PURSUANT TO SEC. 7 OF THE
CONDITIONS OF THE UNIFORM BILL OF LADING, A PROVISION WHICH PRESUPPOSES
THAT THE PREPAYMENT OF FREIGHT CLAUSE IS NOT AS BROAD AS THE AUTHORIZED
GUARANTEE.    IN THE SPECIAL CIRCUMSTANCES OF THIS CASE WE HAVE NO
OCCASION TO CONSIDER THE BROADER CONTENTION OF PETITIONER THAT THE
PREPAYMENT CLAUSE CONTEMPLATED AN UNDERTAKING UPON ITS PART TO PAY ONLY
THE AMOUNT OF FREIGHT CHARGES SPECIFIED ON THE FACE OF THE BILL OF
LADING, WHETHER OR NOT THEY WERE COMPUTED AT THE LAWFUL RATE ON THE
SHIPMENTS AS TENDERED AND BILLED.  REVERSED. 

FN1  SPECIMEN FORMS OF THE UNIFORM BILLS OF LADING, PRESCRIBED FOR
INTERSTATE RAIL SHIPMENTS DURING THE PERIOD WHEN THE SHIPMENTS
CONCERNED IN THIS ACTION WERE MADE, MAY BE FOUND IN CONSOLIDATED
FREIGHT CLASSIFICATION NO. 7(1932) PP. 52-56. 

FN2  SEC. 7 OF THE CONDITIONS OF THE BILL OF LADING, SO FAR AS
RELEVANT, IS SET OUT AT PAGE 512, INFRA.  THE PARTIES HAVE STIPULATED
THAT THE NON-RECOURSE CLAUSE CONTAINED IN THE BILLS OF LADING IN THIS
CASE WERE IN THE FORM QUOTED IN THE TEXT.  THE FORM APPROVED BY THE
COMMISSION VARIES SLIGHTLY IN DETAILS IMMATERIAL HERE.  SEE
CONSOLIDATED FREIGHT CLASSIFICATION NO. 7, SUPRA, P. 52. 

FN3  THE EXCEPTION, INAPPLICABLE HERE, IS IN THE CASE WHERE A
CONSIGNEE, OTHER THAN THE CONSIGNOR, IS AN AGENT WITH NO BENEFICIAL
TITLE IN THE GOODS, AND HAS NOTIFIED THE CARRIER OF THESE FACTS.  IN
SUCH A CASE THE CONSIGNEE IS NOT "LIABLE FOR TRANSPORTATION CHARGES
...  (BEYOND THOSE BILLED AGAINST HIM AT THE TIME OF DELIVERY FOR WHICH
HE IS OTHERWISE LIABLE) WHICH MAY BE FOUND TO BE DUE AFTER THE PROPERTY
HAS BEEN DELIVERED TO HIM," BUT THE CONSIGNOR IS LIABLE FOR SUCH
CHARGES.  CF. SEC. 3(2) OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49
U.S.C. SEC. 3(2). 

MR. JUSTICE ROBERTS CONCURS IN THE RESULT. 
..END :











DIXIE PINE CO. V. COMMISSIONER, 320 U.S. 516 


NO. 84.  ARGUED DECEMBER 14, 15, 1943.  - DECIDED JANUARY 3, 1944.  -
134 F.2D 273, AFFIRMED. 


1.  A TAXPAYER WHO KEPT HIS BOOKS ON THE ACCRUAL BASIS DEDUCTED ON HIS
INCOME TAX RETURNS FOR 1937 STATE TAXES ASSESSED AGAINST HIM DURING THE
TAXABLE YEAR.  HE WAS CONTESTING IN THE STATE COURTS HIS LIABILITY FOR
THE TAXES, WAS LATER ADJUDGED EXEMPT THEREFROM, AND NEVER ACTUALLY PAID
THEM.  HELD THAT, UNDER THE REVENUE ACT OF 1936, THE DEDUCTION WAS
PROPERLY DISALLOWED.  P. 519. 

2.  THE BOARD OF TAX APPEALS APPLIED THE CORRECT RULE OF LAW IN THIS
CASE, AND THE COURT BELOW PROPERLY REFUSED TO DISTURB ITS
DETERMINATION.  DOBSON V. COMMISSIONER, ANTE, P. 489.  P. 519. 

DIXIE PINE PRODUCTS CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 720, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 45 B.T.A. 286, WHICH SUSTAINED THE
COMMISSIONER'S DETERMINATION OF A TAX DEFICIENCY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED CONCERNS THE PROPRIETY OF THE RESPONDENT'S
DISALLOWANCE OF A DEDUCTION FROM INCOME WHICH PETITIONER TOOK IN ITS
FEDERAL INCOME TAX RETURN FOR 1937. 

IN 1936 THE MISSISSIPPI TAXING AUTHORITIES DECLARED THAT A SOLVENT
USED BY PETITIONER IN ITS BUSINESS WAS GASOLINE WITHIN THE MEANING OF A
STATE LAW DEFINING GASOLINE AND LAYING A TAX UPON ITS RECEIPT AND USE. 
ACCORDINGLY A TAX WAS ASSESSED AGAINST THE PETITIONER WITH RESPECT TO
THE RECEIPT AND USE OF THE SOLVENT IN 1936.  PETITIONER PAID THE TAX,
AND, IN THE SAME YEAR, BROUGHT SUIT AGAINST THE MOTOR VEHICLE
COMMISSIONER OF MISSISSIPPI ALLEGING THAT THE SOLVENT WAS NOT WITHIN
THE COMPREHENSION OF THE STATE LAW AND THAT THE COMMISSIONER SHOULD BE
TEMPORARILY AND PERMANENTLY ENJOINED FROM FUTURE COLLECTIONS OF TAX IN
RESPECT OF IT.  THE COMMISSIONER'S DEMURRER TO THE COMPLAINT WAS
SUSTAINED BUT, ON APPEAL, THE SUPREME COURT OF MISSISSIPPI DECIDED
THAT, ON THE PLEADINGS, THE SOLVENT WAS NOT WITHIN THE DEFINITION OF
GASOLINE CONTAINED IN THE STATE STATUTE.  AFTER THIS DECISION
PETITIONER DENIED THAT IT OWED, AND CEASED AND REFUSED TO PAY, ANY
GASOLINE TAX ON SOLVENT USED BY IT. 

IN DECEMBER 1937, ON ADVICE OF COUNSEL, PETITIONER (WHICH KEPT ITS
BOOKS AND FILED ITS FEDERAL INCOME TAX RETURNS ON THE ACCRUAL BASIS)
MADE BOOK ENTRIES ACCRUING GASOLINE TAX ASSESSED BY THE MOTOR VEHICLE
COMMISSIONER IN 1937.  THE ACTUAL ACCRUAL ENTRIES WERE MADE SOMETIME
BETWEEN JANUARY 1 AND MARCH 15, 1938, AS OF DECEMBER 31, 1937, IN THE
AMOUNT OF APPROXIMATELY $21,000, AND PETITIONER DEDUCTED THIS AMOUNT
FROM INCOME IN MAKING ITS 1937 FEDERAL INCOME TAX RETURN, ALTHOUGH THE
SUM HAD NOT BEEN, AND NEVER WAS, PAID. 

IN DECEMBER 1938 PETITIONER AND THE ATTORNEY GENERAL OF MISSISSIPPI
FILED AN AGREED STATEMENT OF FACTS IN THE STATE COURT SUIT, AND, IN THE
SAME MONTH, THE TRIAL JUDGE ENTERED A FINAL DECREE PERPETUALLY
ENJOINING THE MOTOR VEHICLE COMMISSIONER FROM ASSESSING GASOLINE TAX ON
THE SOLVENT USED BY PETITIONER.  THIS DECREE WAS SUBSEQUENTLY AFFIRMED
BY THE SUPREME COURT OF MISSISSIPPI.  IN ITS 1938 FEDERAL INCOME TAX
RETURN PETITIONER, BY WAY OF COMPENSATING ENTRY, INCLUDED THE SUM OF
$21,000 AS INCOME AND AS A RECOVERY, IN VIEW OF THE MISSISSIPPI TRIAL
COURT'S DECREE OF DECEMBER 1938. 

THE SOLE QUESTION IS WHETHER THE COMMISSIONER WAS RIGHT IN
DISALLOWING THE DEDUCTION FOR THE TAX YEAR 1937.  THE BOARD OF TAX
APPEALS HELD THAT HE WAS,  FN1  AND THE COURT BELOW AFFIRMED ITS
DECISION.  FN2  WE TOOK THE CASE BECAUSE OF A CONCEDED CONFLICT IN
PRINCIPLE WITH DECISIONS IN OTHER CIRCUITS.  FN3 

FROM GROSS INCOME OF TAXES "PAID OR ACCRUED WITHIN THE TAXABLE YEAR." 
ACCRUAL BASIS, WHERE THE TAXPAYER KEEPS HIS BOOKS ON THAT PRINCIPLE,
PROVIDED HIS METHOD CLEARLY REFLECTS HIS INCOME IN ANY TAXABLE YEAR. 

THE PROVISIONS OF THE REVENUE ACT OF 1936 WORKED NO SIGNIFICANT
CHANGE OVER EARLIER ACTS RESPECTING THE PERMISSIBLE BASIS OF
CALCULATING ANNUAL TAXABLE INCOME.  THE APPLICABLE PRINCIPLES OF
ACCOUNTING ON THE ACCRUAL BASIS HAD  BEEN ADDUCED AND APPLIED BY THE
BOARD OF TAX APPEALS IN NUMEROUS DECISIONS.  FN5  IT HAS NEVER BEEN
QUESTIONED THAT A TAXPAYER WHO ACCOUNTS ON THE ACCRUAL BASIS MAY, AND
SHOULD, DEDUCT FROM GROSS INCOME A LIABILITY WHICH REALLY ACCRUES IN
THE TAXABLE YEAR.  FN6  IT HAS LONG BEEN HELD THAT IN ORDER TRULY TO
REFLECT THE INCOME OF A GIVEN YEAR, ALL THE EVENTS MUST OCCUR IN THAT
YEAR WHICH FIX THE AMOUNT AND THE FACT OF THE TAXPAYER'S LIABILITY FOR
ITEMS OF INDEBTEDNESS DEDUCTED THOUGH NOT PAID; FN7  AND THIS CANNOT BE
THE CASE WHERE THE LIABILITY IS CONTINGENT AND IS CONTESTED BY THE
TAXPAYER.  FN8  HERE THE TAXPAYER WAS STRENUOUSLY CONTESTING LIABILITY
IN THE COURTS AND, AT THE SAME TIME, DEDUCTING THE AMOUNT OF THE TAX,
ON THE THEORY THAT THE STATE'S EXACTION CONSTITUTED A FIXED AND CERTAIN
LIABILITY.  THIS IT COULD NOT DO.  IT MUST, IN THE CIRCUMSTANCES, AWAIT
THE EVENT OF THE STATE COURT LITIGATION AND MIGHT CLAIM A DEDUCTION
ONLY FOR THE TAXABLE YEAR IN WHICH ITS LIABILITY FOR THE TAX WAS
FINALLY ADJUDICATED.  FN9 

TO THIS EFFECT ARE THE DECISIONS OF THE BOARD OF TAX APPEALS IN
NUMEROUS CASES, AND THE INSTANT DECISION WAS IN LINE WITH EARLIER
RULINGS AS TO PROPER TAX ACCOUNTING PRACTICE.  SINCE THE BOARD APPLIED
THE CORRECT RULE OF LAW, ITS DETERMINATION THAT THE ITEM IN QUESTION
WAS NOT PROPERLY DEDUCTED ON THE ACCRUAL BASIS IS ENTITLED TO THE
FINALITY INDICATED BY DOBSON V. HELVERING, ANTE, P. 489.  THE COURT
BELOW PROPERLY REFUSED TO DISTURB THE BOARD'S DETERMINATION. 
AFFIRMED. 

FN1  45 B.T.A. 286. 

FN2  134 F.2D 273. 

FN3  COMMISSIONER V. CENTRAL UNITED NATIONAL BANK, 99 F.2D 568; J. A.
DOUGHERTY'S SONS V. COMMISSIONER, 121 F.2D 700; DAVIES' ESTATE V.
COMMISSIONER, 126 F.2D 294. 

FN4  49 STAT. 1648, 1659. 

FN5  SEE LUCAS V. AMERICAN CODE CO., 280 U.S. 445, NOTES 1 AND 3, PP.
450, 452. 

FN6  UNITED STATES V. ANDERSON, 269 U.S. 422; AMERICAN NATIONAL CO.
V. UNITED STATES, 274 U.S. 99; NILES BEMENT POND CO. V. UNITED STATES,
281 U.S. 357; ALUMINUM CASTINGS CO. V. ROUTZAHN, 282 U.S. 92; CF.
CONTINENTAL TIE & LUMBER CO. V. UNITED STATES, 286 U.S. 290. 

FN7  UNITED STATES V. ANDERSON, SUPRA, 450, 451. 

FN8  LUCAS V. AMERICAN CODE CO., SUPRA, 450, 451. 

FN9  CF. BROWN V. HELVERING, 291 U.S. 193. 
..END :










HILL V. HAWES, 320 U.S. 520 


NO. 4.  ARGUED DECEMBER 6, 1943.  - DECIDED JANUARY 3, 1944.  - 76 U.S.
APP. D.C. 308, 132 F.2D 569, REVERSED. 


1.  RULE 10 OF THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA, LIMITING TO 20 DAYS THE TIME WITHIN WHICH AN
APPEAL MAY BE TAKEN TO THAT COURT FROM A JUDGMENT OF THE DISTRICT COURT
OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, SUSTAINED.  P. 522. 

THE STATUTORY POWER OF THE COURT TO ADOPT THE RULE (ACT OF JULY 30,
1894, AMENDING ACT OF FEB. 9, 1893) WAS NOT ALTERED BY THE JUDICIAL
CODE (1911), OR THE ACT OF FEB. 13, 1925, OR THE RULES OF CIVIL
PROCEDURE. 

2.  THE CLERK OF THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT OF COLUMBIA HAVING FAILED UPON ENTRY OF JUDGMENT TO NOTIFY THE
PARTIES AS REQUIRED BY RULE 77(D) OF THE RULES OF CIVIL PROCEDURE, THE
JUDGE AT THE SAME TERM ORDERED THE JUDGMENT VACATED AND ENTRY OF A NEW
JUDGMENT, OF WHICH NOTICE WAS SENT IN COMPLIANCE WITH THE RULES.  HELD
THAT THE TIME FOR APPEAL BEGAN TO RUN FROM THE DATE OF THE ENTRY OF THE
SECOND JUDGMENT.  P. 523. 

HILL, ADMINISTRATOR, V. HAWES ET AL., TRUSTEES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 318 U.S. 753, TO REVIEW A JUDGMENT DISMISSING AN APPEAL
AS OUT OF TIME. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS IMPORTANT QUESTIONS RESPECTING THE RULE-MAKING
POWER OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA TOUCHING APPEALS TO THAT COURT AND THE POWERS OF THE DISTRICT
COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA TO VACATE ITS
JUDGMENTS. 

RULE 10 OF THE RULES OF THE COURT OF APPEALS, AS IT STOOD WHEN
APPLIED IN THIS CASE, WAS: 

"NO  ...  JUDGMENT  ...  OF THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF COLUMBIA, OR OF ANY JUSTICE THEREOF, SHALL BE
REVIEWED BY THE COURT OF APPEALS, UNLESS THE APPEAL SHALL BE TAKEN
WITHIN 20 DAYS AFTER THE  ...  JUDGMENT  ...  COMPLAINED OF SHALL HAVE
BEEN MADE OR PRONOUNCED.  ..."  FN1 

IN THE INSTANT CASE A JUDGE OF THE DISTRICT COURT, AFTER A HEARING ON
A COMPLAINT AND ANSWER, ON MAY 7, 1940, SIGNED A JUDGMENT DISMISSING
THE COMPLAINT.  THE CLERK NOTED THE JUDGMENT IN THE DOCKET.  THIS
ENTRY, PURSUANT TO RULE 79(A) OF THE RULES OF CIVIL PROCEDURE, MADE THE
JUDGMENT EFFECTIVE AT THE DATE OF ENTRY.  (SEE RULE 58.) 

THE TWENTY-DAY PERIOD FOR APPEAL EXPIRED MAY 27 BUT NO NOTICE OF
APPEAL WAS FILED UNTIL JUNE 3.  RULE 77(D) OF THE RULES OF CIVIL
PROCEDURE IMPOSED ON THE CLERK THE DUTY, IMMEDIATELY UPON THE ENTRY OF
THE JUDGMENT, TO SEND NOTICE OF SUCH ENTRY, IN THE WAY SPECIFIED BY
RULE 5, BUT IT IS AGREED THAT NO SUCH NOTICE WAS SENT. 

JUNE 6 THE PETITIONER FILED A MOTION TO ENTER JUDGMENT AND TO DIRECT
THE CLERK TO NOTIFY THE PARTIES.  THE REASONS STATED IN SUPPORT OF THE
MOTION WERE THAT THE CLERK HAD FAILED TO ENTER THE DAY OR THE MONTH OF
THE JUDGMENT AS REQUIRED BY THE RULES OF COURT AND HAD FAILED TO NOTIFY
THE PARTIES.  THE MOTION WAS NOT ACTED ON UNTIL JUNE 24, WHEN THE COURT
DENIED IT. 

IN THE MEANTIME, ON JUNE 13, THE TRIAL JUDGE ORDERED THE JUDGMENT OF
MAY 7 VACATED "FOR THE REASON THAT THE CLERK FAILED UNDER RULE 77(D) OF
THE RULES OF CIVIL PROCEDURE TO SERVE A NOTICE OF THE ENTRY OF JUDGMENT
BY MAIL ON THE PLAINTIFF  ...  AND TO MAKE A NOTE IN THE DOCKET OF THE
MAILING."  THE SAME DAY THE JUDGE SIGNED AND FILED A SECOND JUDGMENT IN
THE SAME TERMS AS THAT OF MAY 7, WHICH WAS DULY NOTED IN THE DOCKET. 
THE PETITIONER FILED A NOTICE OF APPEAL FROM THIS JUDGMENT ON JUNE 14. 
THE RESPONDENT MOVED TO DISMISS THE APPEAL AS TAKEN OUT OF TIME.  THE
COURT BELOW GRANTED THE MOTION AND DISMISSED THE APPEAL.  FN2 

THE PETITIONER URGES THAT THE RULE OF THE COURT BELOW FIXING 20 DAYS
AS THE PERIOD WITHIN WHICH APPEAL MAY BE TAKEN IS CONTRARY TO LAW AND
THAT, EVEN THOUGH THE RULE IS VALID, THE APPEAL WAS TIMELY BECAUSE
TAKEN WITHIN 20 DAYS OF THE JUDGMENT FINALLY ENTERED. 

FIRST.  WE HOLD THAT RULE 10 OF THE COURT OF APPEALS IS WITHIN THE
COMPETENCE OF THAT COURT.  THE COURT WAS ESTABLISHED BY THE ACT OF
FEBRUARY 9, 1893,  FN3  WHICH, IN SEC. 6, EMPOWERED IT TO "MAKE SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY AND PROPER FOR THE
TRANSACTION OF THE BUSINESS TO BE BROUGHT BEFORE IT, AND FOR THE TIME
AND METHOD OF THE ENTRY OF APPEALS."  THE ACT OF JULY 30, 1894,  FN4
AMENDED SEC. 6 TO READ THAT THE COURT MIGHT MAKE "SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY AND PROPER FOR THE TRANSACTION OF ITS
BUSINESS AND THE TAKING OF APPEALS TO SAID COURT."  BOTH OF THESE
STATUTES WERE LATER THAN THE ACT OF MARCH 3, 1891,  FN5 WHICH CREATED
CIRCUIT COURTS OF APPEALS AND PROVIDED FOR APPEALS TO SUCH COURTS
WITHIN SIX MONTHS AFTER THE ENTRY OF JUDGMENT.  THE JUDICIAL CODE
ADOPTED MARCH 3, 1911,  FN6  DID NOT ALTER OR ENLARGE THE PROVISIONS OF
THE ACT OF MARCH 3, 1891, SUPRA. 

IN EX PARTE DANTE, 228 U.S. 429, DECIDED APRIL 28, 1913, THIS COURT
AFFIRMED THE VALIDITY OF RULE 10.  THIS DECISION NECESSARILY IMPORTS
THAT THE STATUTE CONFERRING POWER ON THE COURT OF APPEALS TO SET THE
TIME FOR APPEAL WAS NOT SUPERSEDED BY THE LEGISLATION CREATING AND
DEFINING THE JURISDICTION OF CIRCUIT COURTS OF APPEALS.  NO REFERENCE
IS MADE TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA IN SEC. 8(C) OF THE ACT OF FEBRUARY 13, 1925, WHICH REDUCED TO
THREE MONTHS THE TIME WITHIN WHICH TO TAKE APPEALS TO THE CIRCUIT
COURTS OF APPEALS.  FN7  THE FEDERAL RULES OF CIVIL PROCEDURE HAVE NOT
ALTERED STATUTORY PROVISIONS RESPECTING THE TIME FOR TAKING APPEALS
FROM DISTRICT COURTS.  IT FOLLOWS THAT THE COURT BELOW POSSESSES THE
STATUTORY POWER TO SET THE TIME WITHIN WHICH AN APPEAL FROM THE
DISTRICT COURT MUST BE TAKEN. 

SECOND.  IT GOES WITHOUT SAYING THAT THE DISTRICT COURT COULD NOT
EXTEND THE PERIOD FIXED BY RULE 10.  THE RESPONDENT URGES THAT THE
VACATION OF THE JUDGMENT OF MAY 7, AND THE ENTRY OF A NEW JUDGMENT ON
JUNE 13, AMOUNTED MERELY TO AN ATTEMPTED EXTENSION OF THE TIME FOR
APPEAL; THAT JUDGMENT WAS DULY ENTERED AND BECAME FINAL ON MAY 7; THAT
THE CLERK'S NEGLECT TO COMPLY WITH RULE 77(D) IN THE MATTER OF NOTICE
DOES NOT AFFECT ITS VALIDITY OR ITS FINALITY, AND THAT THE NOTICE OF
APPEAL OF JUNE 14 WAS CONSEQUENTLY OUT OF TIME AND THE COURT BELOW
PROPERLY DISMISSED THE APPEAL ON THAT GROUND.  WE CANNOT AGREE. 

IT IS TRUE THAT RULE 77(D) DOES NOT PURPORT TO ATTACH ANY CONSEQUENCE
TO THE FAILURE OF THE CLERK TO GIVE THE PRESCRIBED NOTICE; BUT WE CAN
THINK OF NO REASON FOR REQUIRING THE NOTICE IF COUNSEL IN THE CAUSE ARE
NOT ENTITLED TO RELY UPON THE REQUIREMENT THAT IT BE GIVEN.  IT MAY
WELL BE THAT THE EFFECT TO BE GIVEN TO THE RULE IS THAT, ALTHOUGH THE
JUDGMENT IS FINAL FOR OTHER PURPOSES, IT DOES NOT BECOME FINAL FOR THE
PURPOSE OF STARTING THE RUNNING OF THE PERIOD FOR APPEAL UNTIL NOTICE
IS SENT IN ACCORDANCE WITH THE RULE.  THE FEDERAL RULES OF CIVIL
PROCEDURE PERMIT THE AMENDMENT OR VACATION OF A JUDGMENT FOR CLERICAL
MISTAKES OR ERRORS ARISING FROM OVERSIGHT OR OMISSION AND AUTHORIZE THE
COURT TO RELIEVE A PARTY FROM A JUDGMENT OR ORDER TAKEN AGAINST HIM
THROUGH HIS MISTAKE, INADVERTENCE, SURPRISE OR EXCUSABLE NEGLECT.  (SEE
RULE 60(A)(B).)  THESE RULES DO NOT IN TERMS APPLY TO THE SITUATION
HERE PRESENT, AS THE COURT BELOW HELD.  BUT WE THINK IT WAS COMPETENT
FOR THE TRIAL JUDGE, IN THE VIEW THAT THE PETITIONER RELIED UPON THE
PROVISIONS OF RULE 77(D) WITH RESPECT TO NOTICE, AND IN THE EXERCISE OF
A SOUND DISCRETION, TO VACATE THE FORMER JUDGMENT AND TO ENTER A NEW
JUDGMENT OF WHICH NOTICE WAS SENT IN COMPLIANCE WITH THE RULES.  THE
TERM HAD NOT EXPIRED AND THE JUDGMENT WAS STILL WITHIN CONTROL OF THE
TRIAL JUDGE FOR SUCH ACTION AS WAS IN THE INTEREST OF JUSTICE TO A
PARTY TO THE CAUSE. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT BELOW
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  FEBRUARY 1, 1941, THE RULE WAS AMENDED TO SUBSTITUTE A PERIOD OF
30 DAYS FOR THE 20 DAYS THERETOFORE PROVIDED. 

FN2  132 F.2D 569; 76 U.S. APP. D.C. 308. 

FN3  C. 74, 27 STAT. 434. 

FN4  C. 172, 28 STAT. 160. 

FN5  C. 517, SEC. 11, 26 STAT. 826, 829. 

FN6  36 STAT. 1087. 

FN7  C. 229, 43 STAT. 936, 940. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

I DO NOT UNDERSTAND THAT THE COURT RESTS ITS DECISION ON THE GROUND
THAT RULE 77(D) OF THE RULES OF CIVIL PROCEDURE MAKES NOTICE OF ENTRY
PREREQUISITE TO THE FINALITY OF THE JUDGMENT FOR PURPOSES OF APPEAL. 
IF IT DOES, MOST ELSE THAT IS SAID IS UNNECESSARY TO THE DECISION.  IN
ANY CASE WHAT IS SAID SEEMS TO ME TO BE UNTENABLE IN PRINCIPLE AND
WITHOUT SUPPORT IN AUTHORITY. 

TO SAY THAT A DISTRICT COURT CAN RIGHTLY EXTEND THE PRESCRIBED TIME
FOR TAKING AN APPEAL BY THE REENTRY, PRO FORMA, OF A FINAL JUDGMENT
AFTER THE TIME TO APPEAL FROM IT HAS EXPIRED, IS TO DISREGARD
CONSIDERATIONS OF CERTAINTY AND STABILITY WHICH HAVE HITHERTO BEEN
CONSIDERED OF FIRST IMPORTANCE IN THE APPELLATE PRACTICE OF THE FEDERAL
COURTS.  IT IS TO SANCTION THE REGULATION OF THE TIME FOR APPEAL BY
COURTS, CONTRARY TO THE APPEAL STATUTE, AND WITHOUT SUPPORT IN LAW OR
ANY RULE OF COURT.  RULE 60, WHICH PERMITS AMENDMENT OF THE JUDGMENT OR
RELIEF OF A PARTY FROM IT, IN CIRCUMSTANCES NOT HERE PRESENT, GIVES NO
WARRANT FOR ENLARGING THE TIME FOR APPEAL BY REENTRY OF A JUDGMENT
WHICH IS NOT AMENDED AND FROM NO PART OF WHICH ANY PARTY HAS BEEN
RELIEVED. 

IN THE FEDERAL COURTS THERE IS NO RIGHT TO APPEAL SAVE AS IT IS
GRANTED BY CONGRESS OR A RULE OF COURT WHICH IS AUTHORIZED BY CONGRESS
AND HAS THE FORCE OF LAW.  SEE HEIKE V. UNITED STATES, 217 U.S. 423,
428; EX PARTE DANTE, 228 U.S. 429, 432.  IT IS IN THE PUBLIC INTEREST,
AND IT IS THE VERY PURPOSE OF LIMITING THE PERIOD FOR APPEAL, TO SET A
DEFINITE AND ASCERTAINABLE POINT OF TIME WHEN LITIGATION SHALL BE AT AN
END UNLESS WITHIN THAT TIME APPLICATION FOR APPEAL HAS BEEN MADE; AND
IF IT HAS NOT, TO ADVISE PROSPECTIVE APPELLEES THAT THEY ARE FREED OF
THE APPELLANT'S DEMANDS.  MATTON STEAMBOAT CO. V. MURPHY, 319 U.S. 412,
415. 

THAT PURPOSE IS DEFEATED IF JUDGES MAY ENLARGE THE TIME FOR APPEAL
BEYOND THE PERIOD PRESCRIBED BY LAW, WHETHER BY AN ORDER PURPORTING
DIRECTLY TO EXTEND IT OR BY REENTRY, WITHOUT CHANGE, OF A JUDGMENT
WHICH HAS ALREADY BECOME FINAL.  IT IS FOR THAT REASON THAT THIS COURT
HAS CONSISTENTLY RULED THAT NO FEDERAL JUDGE OR COURT POSSESSES THE
POWER TO EXTEND THE TIME FOR APPEAL BEYOND THE STATUTORY PERIOD BY ANY
FORM OF JUDICIAL ACTION WHICH FALLS SHORT OF A RECONSIDERATION OF THE
PROVISIONS OF THE JUDGMENT IN POINT OF SUBSTANCE SO AS TO POSTPONE ITS
FINALITY. 

THE DECISIONS ARE NUMEROUS AND DILIGENCE OF COURT AND COUNSEL HAS
REVEALED NO EXCEPTIONS.  CREDIT COMPANY V. ARKANSAS CENTRAL RY. CO.,
128 U.S. 258, IS REPRESENTATIVE OF THE UNBROKEN CURRENT OF AUTHORITY. 
THERE, IN DISMISSING AN APPEAL AS UNTIMELY THE COURT, SPEAKING BY MR.
JUSTICE BRADLEY, SAID AT PAGE 261:  "THE ATTEMPT MADE, IN THIS CASE, TO
ANTICIPATE THE ACTUAL TIME OF PRESENTING AND FILING THE APPEAL, BY
ENTERING AN ORDER NUNC PRO TUNC, DOES NOT HELP THE CASE.  WHEN THE TIME
FOR TAKING AN APPEAL HAS EXPIRED, IT CANNOT BE ARRESTED OR CALLED BACK
BY A SIMPLE ORDER OF COURT.  IF IT COULD BE, THE LAW WHICH LIMITS THE
TIME WITHIN WHICH AN APPEAL CAN BE TAKEN WOULD BE A DEAD LETTER." 

AT THE LAST TERM OF COURT WE HELD THAT THE REENTRY OF ITS FINAL
JUDGMENT BY A STATE APPELLATE COURT, WITH ONLY FORMAL CHANGES NOT
AFFECTING ANY MATTER ADJUDICATED, DID NOT ENLARGE THE TIME TO APPEAL TO
THIS COURT.  DEPARTMENT OF BANKING V. PINK, 317 U.S. 264.  AND AT THE
SAME TERM WE HELD THAT A MOTION TO AMEND A FINAL JUDGMENT WOULD NOT
TOLL THE TIME FOR APPEAL UNLESS THE AMENDMENTS PROPOSED WERE OF
SUBSTANCE RATHER THAN FORM, LEISHMAN V. ASSOCIATED ELECTRIC CO., 318
U.S. 203, 205-6 - AN INQUIRY WHICH PRESUPPOSED THAT REENTRY OF THE
JUDGMENT WITHOUT FORMAL CHANGE COULD NOT ENLARGE THE TIME.  TO THE SAME
EFFECT ARE PFISTER V. NORTHERN ILLINOIS FINANCE CORP., 317 U.S. 144,
149-51; ZIMMERN V. UNITED STATES, 298 U.S. 167.  AND IN WAYNE GAS CO.
V. OWENS-ILLINOIS GLASS CO., 300 U.S. 131, 137, THIS COURT, CITING IN
RE STEARNS & WHITE CO., 295 F. 833; BONNER V. POTTERF, 47 F.2D 852,
855; UNITED STATES V. EAST, 80 F.2D 134, 135, DECLARED THAT WHERE IT
APPEARS THAT A REHEARING HAS BEEN GRANTED ONLY FOR THE PURPOSE OF
EXTENDING THE TIME OF APPEAL THE APPEAL MUST BE DISMISSED - A STATEMENT
EQUALLY APPLICABLE TO THE REENTRY OF THE JUDGMENT SOLELY FOR THAT
PURPOSE. 

PETITIONER, BY THE EXERCISE OF THE DILIGENCE REQUIRED BY THE FEDERAL
RULES OF CIVIL PROCEDURE COULD HAVE LEARNED OF THE ENTRY OF THE
JUDGMENT AGAINST HIM AND HAVE TAKEN A TIMELY APPEAL.  HIS CASE IS NOT
HARD ENOUGH TO AFFORD EVEN THE PROVERBIAL APOLOGY FOR OUR SAYING THAT
FEDERAL JUDGES, BY THE REENTRY OF A JUDGMENT FOR NO OTHER PURPOSE, ARE
FREE TO MAKE A DEAD LETTER OF THE STATUTORY LIMIT OF THE PERIOD FOR
APPEAL. 

MR. JUSTICE MURPHY CONCURS. 
..END :






UNITED STATES V. GASKIN, 320 U.S. 527 


NO. 68.  ARGUED DECEMBER 7, 8, 1943.  - DECIDED JANUARY 3, 1944.  - 50
F.SUPP.  607, REVERSED. 


1.  IT IS AN OFFENSE UNDER SEC. 269 OF THE CRIMINAL CODE TO ARREST A
PERSON WITH INTENT TO HOLD HIM IN PEONAGE.  P. 528. 

THAT THE PERSON SHALL HAVE RENDERED SERVICE IN CONSEQUENCE OF THE
ARREST IS NOT AN ELEMENT OF THE OFFENSE. 

2.  THE RULES REQUIRING DEFINITENESS AND STRICT CONSTRUCTION OF A
CRIMINAL STATUTE DO NOT REQUIRE DISTORTION OR NULLIFICATION OF ITS
EVIDENT MEANING AND PURPOSE.  P. 529. 

UNITED STATES V. GASKIN. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF FLORIDA. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT OF THE DISTRICT
COURT SUSTAINING A DEMURRER TO AN INDICTMENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

AN INDICTMENT WAS RETURNED AGAINST THE APPELLEE IN THE DISTRICT COURT
FOR NORTHERN FLORIDA WHICH CHARGED THAT HE ARRESTED ONE JOHNSON "TO A
CONDITION OF PEONAGE," UPON A CLAIM THAT JOHNSON WAS INDEBTED TO HIM,
AND WITH INTENT TO CAUSE JOHNSON TO PERFORM LABOR IN SATISFACTION OF
THE DEBT, AND THAT HE FORCIBLY ARRESTED AND DETAINED JOHNSON AGAINST
HIS WILL AND TRANSPORTED HIM FROM ONE PLACE TO ANOTHER WITHIN FLORIDA. 
THERE WAS NO ALLEGATION THAT JOHNSON RENDERED ANY LABOR OR SERVICE IN
CONSEQUENCE OF THE ARREST.  FROM A JUDGMENT SUSTAINING A DEMURRER,  FN1
THE UNITED STATES APPEALED.  FN2 

THE CHARGE IS LAID UNDER SEC. 269 OF THE CRIMINAL CODE,  FN3  WHICH
IS:  "WHOEVER HOLDS, ARRESTS, RETURNS, OR CAUSES TO BE HELD, ARRESTED,
OR RETURNED, OR IN ANY MANNER AIDS IN THE ARREST OR RETURN OF ANY
PERSON TO A CONDITION OF PEONAGE, SHALL BE FINED  ...  OR IMPRISONED
...  " 

THE DISTRICT COURT HELD THAT THE STATUTE IMPOSES NO PENALTY FOR AN
ARREST WITH INTENT TO COMPEL THE PERFORMANCE OF LABOR OR SERVICE UNLESS
THE PERSON ARRESTED RENDERS LABOR OR SERVICE FOR A MASTER FOLLOWING THE
ARREST. 

WE THINK THIS WAS ERROR.  SECTION 269 DERIVES FROM SEC. 1 OF THE ACT
OF MARCH 2, 1867,  FN4 WHICH ABOLISHED AND PROHIBITED THE SYSTEM KNOWN
AS PEONAGE IN ANY TERRITORY OR STATE, NULLIFIED ANY LAW, ORDINANCE,
REGULATION, OR USAGE INCONSISTENT WITH THE PROHIBITION, AND ADDED
CRIMINAL SANCTIONS IN THE LANGUAGE NOW CONSTITUTING SEC. 269.  THE ACT
WAS PASSED FURTHER TO IMPLEMENT THE THIRTEENTH AMENDMENT AND IS
DIRECTED AT INDIVIDUALS WHETHER OR NOT ACTING UNDER COLOR OF LAW OR
ORDINANCE.  FN5 

THE SECTION MAKES ARREST OF A PERSON WITH INTENT TO PLACE HIM IN A
STATE OF PEONAGE A SEPARATE AND INDEPENDENT OFFENSE.  IT PENALIZES
"WHOEVER HOLDS, ARRESTS, RETURNS, OR CAUSES TO BE HELD, ARRESTED, OR
RETURNED  ...  ANY PERSON TO A CONDITION OF PEONAGE."  THE LANGUAGE IS
INARTISTIC.  THE APPROPRIATE QUALIFYING PREPOSITION FOR THE WORD
"HOLDS" IS "IN."  AN ACCURATE QUALIFYING PHRASE FOR THE VERB "ARRESTS"
WOULD BE "TO PLACE IN OR RETURN TO" PEONAGE.  BUT THE COMPACTNESS OF
PHRASING AND THE LACK OF STRICT GRAMMATICAL CONSTRUCTION DOES NOT
OBSCURE THE INTENT OF THE ACT.  YEARS AGO THIS COURT INDICATED THAT THE
DISJUNCTIVE PHRASING IMPORTS THAT EACH OF THE ACTS,  - HOLDING,
ARRESTING, OR RETURNING,  - MAY BE THE SUBJECT OF INDICTMENT AND
PUNISHMENT.  FN6  WE THINK THAT VIEW IS SOUND APART FROM ANY
CONSIDERATION OF THE LEGISLATIVE HISTORY OF THE ENACTMENT.  BUT WHEN
VIEWED IN ITS SETTING NO DOUBT OF THE PURPOSE OF THE STATUTE REMAINS. 

THE ACT OF 1867 WAS PASSED AS THE RESULT OF AGITATION IN CONGRESS FOR
FURTHER LEGISLATION BECAUSE OF THE USE OF FEDERAL TROOPS TO ARREST
PERSONS WHO HAD ESCAPED FROM A CONDITION OF PEONAGE.  FN7  THE FIRST
CONNECTION THEREWITH CRIMINAL.  THE SECOND SECTION IMPOSED A DUTY ON
ALL IN THE MILITARY AND CIVIL SERVICE TO AID IN THE ENFORCEMENT OF THE
FIRST, AND PROVIDED THAT IF ANY OFFICER OR OTHER PERSON IN THE MILITARY
SERVICE SHOULD OFFEND AGAINST THE ACT'S PROVISIONS HE SHOULD, UPON
CONVICTION BY A COURT MARTIAL, BE DISHONORABLY DISMISSED FROM THE
SERVICE.  FN8  IT IS PLAIN THAT ARREST FOR THE PURPOSE OF PLACING A
PERSON IN OR RETURNING HIM TO A CONDITION OF PEONAGE WAS ONE OF THE
EVILS TO BE SUPPRESSED. 

THE APPELLEE INVOKES THE RULE THAT CRIMINAL LAWS ARE TO BE STRICTLY
CONSTRUED AND DEFENDANTS ARE NOT TO BE CONVICTED UNDER STATUTES TOO
VAGUE TO APPRISE THE CITIZEN OF THE NATURE OF THE OFFENSE.  THAT
PRINCIPLE, HOWEVER, DOES NOT REQUIRE DISTORTION OR NULLIFICATION OF THE
EVIDENT MEANING AND PURPOSE OF THE LEGISLATION.  FN9 

THE JUDGMENT IS REVERSED. 

FN1  50 F.SUPP.  607. 

FN2  PURSUANT TO THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 682. 

FN3  18 U.S.C. SEC. 444. 

FN4  14 STAT. 546. 

FN5  CLYATT V. UNITED STATES, 197 U.S. 207, 218; BAILEY V. ALABAMA,
219 U.S. 219, 241; UNITED STATES V. REYNOLDS, 235 U.S. 133; TAYLOR V.
GEORGIA, 315 U.S. 25. 

FN6  CLYATT V. UNITED STATES, SUPRA, 218, 219. 

FN7  CONG. GLOBE, 39TH CONG., 2D SESS., VOL. 74, PT. 1, PP. 239-241. 
IBID. VOL. 76, PT. 3, P. 1571.  SENATE REPORT NO. 156, 39TH CONG., 2D
SESS., PP. 325, 326. 

FN8  THIS SECTION BECAME SEC. 5527 OF THE REVISED STATUTES AND WAS
REPEALED AND REENACTED IN PART BY SEC. 270 OF THE CRIMINAL CODE.  SEE
18 U.S.C. SEC. 445. 

FN9  GOOCH V. UNITED STATES, 297 U.S. 124, 128; UNITED STATES V.
GILES, 300 U.S. 41, 48; UNITED STATES V. RAYNOR, 302 U.S. 540, 552. 

MR. JUSTICE MURPHY, DISSENTING: 

WE ARE DEALING HERE WITH A CRIMINAL STATUTE, THE PENALTIES OF WHICH
CIRCUMSCRIBE PERSONAL FREEDOM.  BEFORE WE SANCTION THE IMPOSITION OF
SUCH PENALTIES NO DOUBTS SHOULD EXIST AS TO THE STATUTORY PROSCRIPTION
OF THE ACTS IN QUESTION.  OTHERWISE INDIVIDUALS ARE PUNISHED WITHOUT
HAVING BEEN ADEQUATELY WARNED AS TO THOSE ACTIONS WHICH SUBJECTED THEM
TO LIABILITY. 

IT IS DOUBTFUL WHETHER AN ARREST NOT FOLLOWED BY ACTUAL PEONAGE
CLEARLY AND UNMISTAKABLY FALLS WITHIN THE PROHIBITION OF SEC. 269 OF
THE CRIMINAL CODE.  THE COURT BELOW, AT LEAST, FELT THAT THE STATUTE
DID NOT COVER SUCH A SITUATION.  OTHER JUDGES HAVE EXPRESSED SIMILAR
DOUBTS.  UNITED STATES V. EBERHART, 127 F. 252; DISSENTING OPINION IN
TAYLOR V. UNITED STATES, 244 F. 321, 332, 333.  AND IN ORDER TO REACH
THE OPPOSITE CONCLUSION, THIS COURT LABELS THE STATUTORY LANGUAGE AS
"INARTISTIC" AND AS LACKING IN "STRICT GRAMMATICAL CONSTRUCTION."  IT
THEN PROCEEDS TO REWRITE THE STATUTE, IN CONFORMITY WITH WHAT IT
CONCEIVES TO HAVE BEEN THE ORIGINAL INTENTION OF CONGRESS, SO AS TO
PENALIZE "WHOEVER  ...  ARRESTS  ...  ANY PERSON FOR THE PURPOSE OF
PLACING HIM IN A CONDITION OF PEONAGE."  I CANNOT ASSENT TO THIS
JUDICIAL REVISION OF A CRIMINAL LAW.  CONGRESS ALONE HAS POWER TO AMEND
OR CLARIFY THE CRIMINAL SANCTIONS OF A STATUTE. 

APOLOGIA FOR INADEQUATE LEGISLATIVE DRAFTSMANSHIP AND RELIANCE ON THE
ADMITTED EVILS OF PEONAGE CANNOT REPLACE THE RIGHT OF EACH INDIVIDUAL
TO A FAIR WARNING FROM CONGRESS AS TO THOSE ACTIONS FOR WHICH PENALTIES
ARE INFLICTED.  PUNISHMENT WITHOUT CLEAR LEGISLATIVE AUTHORITY MIGHT
CONCEIVABLY CONTAIN MORE POTENTIAL SEEDS OF OPPRESSION THAN THE ARREST
OF A PERSON "TO A CONDITION OF PEONAGE." 
..END :















UNITED STATES V. HARK, 320 U.S. 531 


NO. 83.  ARGUED DECEMBER 8, 9, 1943.  - DECIDED JANUARY 3, 1944.  - 49
F.SUPP.  95, REVERSED. 


1.  NEITHER THE DISTRICT COURT NOR THIS COURT HAS POWER TO EXTEND THE
TIME WITHIN WHICH APPEALS MAY BE TAKEN UNDER THE CRIMINAL APPEALS ACT. 
P. 533. 

2.  A FORMAL JUDGMENT SIGNED BY THE JUDGE - RATHER THAN A STATEMENT
IN AN OPINION OR A DOCKET ENTRY - IS PRIMA FACIE THE DECISION OR
JUDGMENT IN RESPECT OF WHICH THE TIME FOR APPEAL UNDER THE CRIMINAL
APPEALS ACT BEGINS TO RUN.  P. 534. 

3.  IN THE CIRCUMSTANCES OF THIS CASE, HELD THAT THE FORMAL ORDER
SIGNED BY THE JUDGE AND ENTERED OF RECORD - RATHER THAN AN EARLIER
OPINION OR DOCKET ENTRY - WAS THE JUDGMENT FIXING THE DATE FROM WHICH
THE TIME FOR APPEAL UNDER THE CRIMINAL APPEALS ACT RAN, AND THE APPEAL
HERE WAS TIMELY.  P. 535. 

4.  AN ORDER GRANTING A DEFENDANT'S MOTION TO QUASH, THE EFFECT OF
WHICH IS TO BAR PROSECUTION FOR THE OFFENSE CHARGED, IS APPEALABLE
UNDER THE CRIMINAL APPEALS ACT AS A JUDGMENT "SUSTAINING A SPECIAL PLEA
IN BAR."  P. 535. 

5.  REVOCATION OF A PRICE REGULATION ISSUED PURSUANT TO THE EMERGENCY
PRICE CONTROL ACT OF 1942, HELD NOT A BAR TO AN INDICTMENT AND
PROSECUTION FOR A VIOLATION COMMITTED WHEN THE REGULATION WAS IN
FORCE.  P. 536. 

UNITED STATES V. HARK ET AL., CO-PARTNERS, DOING BUSINESS AS LIBERTY
BEEF CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MASSACHUSETTS. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM AN ORDER GRANTING THE
DEFENDANTS' MOTION TO QUASH THE INDICTMENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL, PROSECUTED UNDER THE CRIMINAL APPEALS ACT,  FN1
PRESENTS QUESTIONS TOUCHING THE JURISDICTION OF THIS COURT AND THE
MERITS OF THE CONTROVERSY. 

APPELLEES WERE INDICTED DECEMBER 21, 1942, FOR SALES OF BEEF IN
VIOLATION OF MAXIMUM PRICE REGULATION NO. 169, AS AMENDED, ISSUED
PURSUANT TO THE EMERGENCY PRICE CONTROL ACT OF 1942.  FN2 THEY MOVED TO
QUASH.  THE DISTRICT COURT RENDERED AN OPINION MARCH 5, 1943, HOLDING
THAT, SINCE THE PERTINENT PROVISIONS OF THE REGULATION WHICH THE
APPELLEES WERE CHARGED TO HAVE VIOLATED HAD BEEN REVOKED PRIOR TO THE
RETURN OF THE INDICTMENT, THEY COULD NOT BE HELD TO ANSWER THE CHARGE. 
FN3  THE LAST SENTENCE OF THE OPINION WAS:  "THE MOTION TO QUASH IS
GRANTED." 

UNDER DATE OF MARCH 5 THE CLERK MADE AN ENTRY IN THE DOCKET AS
FOLLOWS:  "SWEENEY, J. OPINION - MOTION TO QUASH IS GRANTED."  THERE
SEEMS TO BE NO DISPUTE THAT SOME DAYS LATER AN ADDITIONAL ENTRY WAS
PLACED UPON THE DOCKET BEARING THE DATE MARCH 5 AND READING:  "SWEENEY,
J. INDICTMENT QUASHED."  IT FURTHER APPEARS THAT, UPON APPLICATION OF
THE UNITED STATES ATTORNEY, JUDGE SWEENEY, ON MARCH 31, SIGNED A FORMAL
ORDER QUASHING THE INDICTMENT.  FN4  ON THE SAME DAY THE CLERK STRUCK
FROM THE DOCKET THE LAST MENTIONED ENTRY DATED MARCH 5 AND ENTERED,
UNDER THE DATE MARCH 31, THE FOLLOWING:  "SWEENEY, J. ORDER QUASHING
INDICTMENT."  ON APRIL 30 JUDGE SWEENEY ALLOWED A PETITION FOR APPEAL
TO THIS COURT. 

THE APPELLEES MOVED TO DISMISS THE APPEAL ON THE GROUNDS THAT IT WAS
NOT SEASONABLY TAKEN FOR THE REASON THAT THE DECISION UPON THE MOTION
TO QUASH MADE BY JUDGE SWEENEY IN HIS OPINION OF MARCH 5 CONSTITUTED
THE JUDGMENT OF THE COURT; AND THAT, AS THE APPEAL IS NOT BASED UPON
THE INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT
WAS FOUNDED, IT WAS IMPROPERLY TAKEN TO THIS COURT UNDER THE CRIMINAL
APPEALS ACT.  WE POSTPONED CONSIDERATION OF THE MOTION TO THE HEARING
ON THE MERITS. 

FIRST.  THE CRIMINAL APPEALS ACT REQUIRES THAT ANY APPEAL TO THIS
COURT WHICH IT AUTHORIZES BE TAKEN "WITHIN THIRTY DAYS AFTER THE
DECISION OR JUDGMENT  FN5  HAS BEEN RENDERED."  NEITHER THE DISTRICT
COURT NOR THIS COURT HAS POWER TO EXTEND THE PERIOD.  IF THE OPINION
FILED ON MARCH 5 CONSTITUTED, WITHIN THE MEANING OF THE ACT, THE
DECISION OR JUDGMENT OF THE DISTRICT COURT, OR IF EITHER OF THE DOCKET
ENTRIES BEARING DATE MARCH 5 CONSTITUTED THE FINAL DECISION OR
JUDGMENT, THE APPEAL WAS UNTIMELY.  FN6  THE CIRCUMSTANCES DISCLOSED
REQUIRE THAT WE DETERMINE WHAT CONSTITUTES THE DECISION OR JUDGMENT
FROM WHICH AN APPEAL LIES IN THIS CASE.  WE ARE WITHOUT THE BENEFIT OF
A RULE SUCH AS RULE 58 OF THE FEDERAL RULES OF CIVIL PROCEDURE WHICH
PROVIDES THAT "THE NOTATION OF A JUDGMENT IN THE CIVIL DOCKET AS
PROVIDED BY RULE 79(A) CONSTITUTES THE ENTRY OF THE JUDGMENT; AND THE
JUDGMENT IS NOT EFFECTIVE BEFORE SUCH ENTRY." 

THE JUDGMENT OF A COURT IS THE JUDICIAL DETERMINATION OR SENTENCE OF
THE COURT UPON A MATTER WITHIN ITS JURISDICTION.  NO FORM OF WORDS AND
NO PECULIAR FORMAL ACT IS NECESSARY TO EVINCE ITS RENDITION OR TO
MATURE THE RIGHT OF APPEAL.  AND THE MODES OF EVIDENCING THE CHARACTER
OF THE JUDGMENT AND OF ATTESTING THE FACT AND TIME OF ITS RENDITION
VARY FROM STATE TO STATE ACCORDING TO LOCAL STATUTE OR CUSTOM, FROM A
SIMPLE DOCKET ENTRY OR THE STATEMENT OF A CONCLUSION IN AN OPINION, TO
A FORMAL ADJUDICATION, SIGNED BY THE JUDGE OR THE CLERK, IN A JOURNAL
OR ORDER BOOK, OR FILED AS PART OF THE RECORD IN THE CASE.  THE
PRACTICE IN FEDERAL COURTS DOUBTLESS VARIES BECAUSE OF THE NATURAL
TENDENCY TO FOLLOW LOCAL STATE PRACTICE.  UNAIDED BY STATUTE OR RULE OF
COURT WE MUST DECIDE ON THE BARE RECORD BEFORE US WHAT CONSTITUTES THE
DECISION OR JUDGMENT OF THE COURT BELOW FROM WHICH APPEAL MUST BE TAKEN
WITHIN THIRTY DAYS AFTER RENDITION. 

IN VIEW OF THE DIVERSE PRACTICE AND CUSTOM IN DISTRICT COURTS WE
CANNOT LAY DOWN ANY HARD AND FAST RULE.  WHERE, AS HERE, A FORMAL
JUDGMENT IS SIGNED BY THE JUDGE, THIS IS PRIMA FACIE THE DECISION OR
JUDGMENT RATHER THAN A STATEMENT IN AN OPINION OR A DOCKET ENTRY.  FN7
IN RECENT CASES WE HAVE SO TREATED IT.  FN8  BUT WE ARE TOLD BY
APPELLEES THAT IT IS NOT THE PRACTICE OF THE COURT BELOW TO REQUIRE
WRITTEN ORDERS, AND THAT ENTRY ON THE DOCKET HAS ALWAYS BEEN CONSIDERED
AS ENTRY OF JUDGMENT, AND FOR THIS SUPPORT IS FOUND IN A LETTER FROM A
DEPUTY CLERK OF THE COURT.  ON THE OTHER HAND, THE APPELLANT CALLS OUR
ATTENTION TO FIVE CASES BROUGHT HERE UNDER THE CRIMINAL APPEALS ACT
FROM THE DISTRICT COURT FOR MASSACHUSETTS IN EACH OF WHICH THE RECORD
CONTAINS A FORMAL ORDER QUASHING AN INDICTMENT, AND IN FOUR OF WHICH
THERE WAS AN OPINION AS WELL AS THE FORMAL ORDER.  FN9 IN VIEW OF THESE
FACTS, WE THINK WE SHOULD GIVE WEIGHT TO THE ACTION OF THE JUDGE RATHER
THAN TO THE OPINION OF COUNSEL OR OF A MINISTERIAL OFFICER OF THE
COURT.  THE JUDGE WAS CONSCIOUS, AS WE ARE, THAT HE WAS WITHOUT POWER
TO EXTEND THE TIME FOR APPEAL.  HE ENTERED A FORMAL ORDER OF RECORD. 
WE ARE UNWILLING TO ASSUME THAT HE DEEMED THIS AN EMPTY FORM OR THAT HE
ACTED FROM A PURPOSE INDIRECTLY TO EXTEND THE APPEAL TIME, WHICH HE
COULD NOT DO OVERTLY.  IN THE ABSENCE OF ANYTHING OF RECORD TO LEAD TO
A CONTRARY CONCLUSION, WE TAKE THE FORMAL ORDER OF MARCH 31 AS IN FACT
AND IN LAW THE PRONOUNCEMENT OF THE COURT'S JUDGMENT AND AS FIXING THE
DATE FROM WHICH THE TIME FOR APPEAL RAN. 

SECOND.  THIS APPEAL IS AUTHORIZED BY THE CRIMINAL APPEALS ACT.  THAT
ACT PERMITS A DIRECT APPEAL TO THIS COURT, INTER ALIA, FROM A JUDGMENT
OF A DISTRICT COURT "SUSTAINING A SPECIAL PLEA IN BAR."  THE MATERIAL
QUESTION IS NOT HOW THE DEFENDANT'S PLEADING IS STYLED BUT THE EFFECT
OF THE RULING SOUGHT TO BE REVIEWED; FN10  AND WE HAVE, THEREFORE,
TREATED A MOTION TO QUASH, THE GRANT OF WHICH WOULD BAR PROSECUTION FOR
THE OFFENSE CHARGED, AS A PLEA IN BAR WITHIN THE PURVIEW OF THE
STATUTE.  FN11  THE DEFENSE HERE WAS IN BAR OF THE PROSECUTION; TO
SUSTAIN IT WAS TO END THE CAUSE AND EXCULPATE THE DEFENDANTS. 

THIRD.  WE HOLD THAT REVOCATION OF THE REGULATION DID NOT PREVENT
INDICTMENT AND CONVICTION FOR VIOLATION OF ITS PROVISIONS AT A TIME
WHEN IT REMAINED IN FORCE.  THE REASON FOR THE COMMON LAW RULE THAT THE
REPEAL OF A STATUTE ENDS THE POWER TO PROSECUTE FOR PRIOR VIOLATIONS
FN12  IS ABSENT IN THE CASE OF A PROSECUTION FOR VIOLATION OF A
REGULATION ISSUED PURSUANT TO AN EXISTING STATUTE WHICH EXPRESSES A
CONTINUING POLICY, TO ENFORCE WHICH THE REGULATION WAS AUTHORIZED. 
REVOCATION OF THE REGULATION DOES NOT REPEAL THE STATUTE; AND THOUGH
THE REGULATION CALLS THE STATUTORY PENALTIES INTO PLAY, THE STATUTE,
NOT THE REGULATION, CREATES THE OFFENSE AND IMPOSES PUNISHMENT FOR ITS
VIOLATION.  FN13  UNITED STATES V. CURTISS-WRIGHT EXPORT CORP., 299
U.S. 304, IS AUTHORITY FOR THE VIEW THAT AN INDICTABLE OFFENSE WAS
CHARGED. 

THE JUDGMENT IS REVERSED. 

FN1  18 U.S.C. SEC. 682. 

FN2  56 STAT. 23, 50 U.S.C. SEC. 901, ETC. 

FN3  49 F.SUPP.  95. 

FN4  "SWEENEY, J.:  THIS CAUSE CAME ON TO BE HEARD UPON THE
DEFENDANT'S MOTION TO QUASH THE INDICTMENT ALLEGING THAT MAXIMUM PRICE
REGULATION NO. 169 HAS BEEN REVOKED BY THE PRICE ADMINISTRATOR,
EFFECTIVE DECEMBER 16, 1942, BEFORE THE INDICTMENT WAS RETURNED.  THIS
ALLEGATION WAS NOT DENIED BY THE GOVERNMENT.  AFTER HEARING ARGUMENTS
OF COUNSEL FOR THE DEFENDANT AND OF THE UNITED STATES ATTORNEY, IT IS 

ORDERED THAT THE INDICTMENT BE AND IT HEREBY IS QUASHED ON THE GROUND
THAT THE REGULATION ALLEGED TO HAVE BEEN VIOLATED WAS REVOKED PRIOR TO
THE RETURN OF THE INDICTMENT. 

BY THE COURT:

               ARTHUR M. BROWN, 

MARCH 31, 1943.                          DEPUTY CLERK. 

GEORGE C. SWEENEY, 

U.S.D.J." 

FN5  THE WORDS "DECISION" AND "JUDGMENT" AS USED IN THE ACT ARE NOT
INTENDED TO DESCRIBE TWO JUDICIAL ACTS, BUT A SINGLE ACT DESCRIBED IN
ALTERNATIVE PHRASES.  CF. EX PARTE TIFFANY, 252 U.S. 32, 36. 

FN6  THERE IS NO DISPUTE THAT THE ENTRY OF MARCH 5, "INDICTMENT
QUASHED," WAS IN FACT NOT PLACED UPON THE DOCKET FOR A NUMBER OF DAYS
AFTER MARCH 5, BUT IT WAS MADE BEFORE MARCH 29.  EVEN IF THE ACTUAL
DATE WHEN IT WAS PLACED ON THE DOCKET IS TO CONTROL, AN APPEAL TAKEN
APRIL 30 WOULD BE OUT OF TIME. 

FN7  IN THE FEDERAL COURTS AN OPINION IS NOT A PART OF THE RECORD
PROPER, ENGLAND V. GEBHARDT, 112 U.S. 502, 506; AND IN SOME
JURISDICTIONS THE DOCKET ENTRIES ARE NOT. 

FN8  UNITED STATES V. RESNICK, 299 U.S. 207; UNITED STATES V.
MIDSTATE HORTICULTURAL CO., 306 U.S. 161.  COMPARE UNITED STATES V.
SWIFT & CO., 318 U.S. 442, 446. 

FN9  UNITED STATES V. STEVENSON, 215 U.S. 190; UNITED STATES V.
WINSLOW, 227 U.S. 202; UNITED STATES V. FOSTER, 233 U.S. 515; UNITED
STATES V. FARRAR, 281 U.S. 624; UNITED STATES V. SCHARTON, 285 U.S.
518. 

FN10  UNITED STATES V. THOMPSON, 251 U.S. 407, 412; UNITED STATES V.
BARBER, 219 U.S. 72, 78. 

FN11  UNITED STATES V. OPPENHEIMER, 242 U.S. 85, 86. 

FN12  UNITED STATES V. TYNEN, 11 WALL.  88, 95; CF. UNITED STATES V.
CHAMBERS, 291 U.S. 217 AT 226. 

FN13  CF. UNITED STATES V. GRIMAUD, 220 U.S. 506, 522. 

MR. JUSTICE MURPHY, DISSENTING: 

I CANNOT AGREE THAT THIS APPEAL WAS "TAKEN WITHIN THIRTY DAYS AFTER
THE DECISION OR JUDGMENT HAS BEEN RENDERED," AS REQUIRED BY THE
CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 682.  THIS APPEAL WAS ALLOWED BY
JUDGE SWEENEY OF THE DISTRICT COURT OF MASSACHUSETTS ON APRIL 30, 1943,
AND IS TIMELY ONLY IF THE FORMAL ORDER SIGNED ON MARCH 31 CONSTITUTES
THE FINAL DECISION OR JUDGMENT.  THE PARTICULAR CIRCUMSTANCES OF THIS
CASE, HOWEVER, FORBID SUCH A CONCLUSION. 

AS THE MAJORITY OPINION STATES, THE FINAL DECISION OR JUDGMENT FROM
WHICH THE THIRTY-DAY APPEAL PERIOD RUNS REQUIRES NO PECULIAR FORMAL ACT
OR FORM OF WORDS.  THE EFFECTIVE ACT VARIES FROM COURT TO COURT.  BUT
THERE IS NO DOUBT AS TO THE PRACTICE IN THE DISTRICT COURT OF
MASSACHUSETTS.  AS STATED BY THE DEPUTY CLERK OF THAT COURT, WHOSE
DUTIES AND FAMILIARITY WITH THE COURT'S PROCEDURE LEND GREAT WEIGHT TO
HIS STATEMENTS, "THE PRACTICE IN THIS DISTRICT, ON THE RECEIPT OF AN
OPINION GRANTING A MOTION TO QUASH, IS TO MAKE AN ENTRY ON THE DOCKET
UNDER THE JUDGE'S NAME, 'INDICTMENT QUASHED.'  IT IS NOT THE PRACTICE
TO HAVE A WRITTEN ORDER."  THIS STATEMENT, WHICH APPEARS TO HAVE HAD
THE APPROVAL OF JUDGE SWEENEY, CLEARLY INDICATES THAT THE FINAL
JUDGMENT IN THIS CASE IS TO BE FOUND IN THE DOCKET ENTRY UNDER THE
JUDGE'S NAME. 

JUDGE SWEENEY'S OPINION OF MARCH 5 GRANTED THE MOTION TO QUASH THE
INDICTMENT.  PURSUANT TO THE DISTRICT COURT'S PRACTICE, AN ENTRY ON THE
DOCKET UNDER THE JUDGE'S NAME, CONSTITUTING THE FINAL JUDGMENT, WOULD
NORMALLY HAVE BEEN MADE ON THE SAME DAY, MARCH 5.  BECAUSE OF
INADVERTENCE, HOWEVER, THE ENTRY WAS NOT MADE UNTIL SOME TIME BETWEEN
MARCH 25 AND MARCH 29.  AT THAT TIME THE DOCKET CLERK MADE THE
FOLLOWING ENTRY ON THE DOCKET:  "MARCH 5.  SWEENEY, J. INDICTMENT
QUASHED."  THAT ENTRY THEREBY CONSTITUTED THE FINAL AND EFFECTIVE
JUDGMENT.  AND ASSUMING THAT THIS JUDGMENT WAS NOT ENTERED UNTIL MARCH
29, THE ALLOWANCE OF THIS APPEAL ON APRIL 30 WAS OUT OF TIME. 

IT IS CONTENDED THAT THE SUBSEQUENT FORMAL ORDER SIGNED ON MARCH 31
BY JUDGE SWEENEY IS THE EFFECTIVE JUDGMENT.  BUT THE PROCEDURE IN THIS
DISTRICT COURT MAKES CLEAR THAT SUCH FORMAL WRITTEN ORDERS ARE
UNNECESSARY.  IT IS THE SIMPLE DOCKET ENTRY WHICH IS THE FINAL DECISION
OR JUDGMENT OF THE COURT BELOW. 

MOREOVER, THE CIRCUMSTANCES SURROUNDING THE FORMAL ORDER OF MARCH 31
REVEAL NO INTENTION BY JUDGE SWEENEY TO SUPERSEDE THE EFFECT OF THE
PREVIOUS DOCKET ENTRY OR TO EXTEND THE TIME FOR APPEAL.  THE DEPUTY
CLERK, IN A LETTER WRITTEN TO THE DEPARTMENT OF JUSTICE, HAS DESCRIBED
THE SITUATION IN THESE WORDS: 

"ON OR ABOUT MARCH 31ST, THE GOVERNMENT PRESENTED A WRITTEN ORDER TO
ME, AND I ACCOMPANIED THE UNITED STATES ATTORNEY TO JUDGE SWEENEY'S
CHAMBERS.  IT WAS ENTIRELY NEW PROCEDURE FOR US TO HAVE A WRITTEN
ORDER.  I UNDERSTAND IT WAS ONLY BECAUSE THE UNITED STATES REPRESENTED
THAT THE DEPARTMENT OF JUSTICE WANTED A WRITTEN ORDER IN THIS CASE, SO
AS TO CONFORM TO THE SUGGESTION CONTAINED IN MR. JUSTICE JACKSON'S
CONCURRING OPINION IN UNITED STATES V. SWIFT & CO., 318 U.S. 442, 446,
THAT JUDGE SWEENEY SIGNED THE ORDER.  I CAN RECALL THAT JUDGE SWEENEY
PROTESTED AGAINST THE NECESSITY OF SIGNING SUCH AN ORDER WHEN IT WAS
PRESENTED TO HIM, BUT DID SIGN IT AT THE REQUEST OF THE UNITED STATES
ATTORNEY.  I ALSO REMEMBER THAT JUDGE SWEENEY SAID HE WAS NOT GOING TO
ADOPT THE PRACTICE OF SIGNING ORDERS IN ALL SUCH FUTURE CASES.  WHEN IT
CAME TIME TO MAKE AN ENTRY OF THIS ORDER IN THE BOOKS, I ASSUMED THAT
IT WAS TO TAKE THE PLACE OF THE ENTRY 'SWEENEY, J. INDICTMENT QUASHED',
WHICH WAS MADE BETWEEN MARCH 25TH AND MARCH 29TH, AND I TOLD THE DOCKET
CLERK MAKING THE ENTRY TO CROSS OUT THE ENTRY WHICH HAD BEEN MADE
PREVIOUSLY BETWEEN MARCH 25TH AND MARCH 29TH.    "WHEN I WROTE MY
LETTER TO YOU, IT SEEMED TO ME THAT I HAD TOLD THE COURT THAT THE ENTRY
OF MARCH 5 WOULD NECESSARILY BE STRICKEN OUT, BUT I FIND THAT THE COURT
HAS NO RECOLLECTION OF BEING SO INFORMED.  THERE WAS NO INTENTION THAT
THE ORDER OF MARCH 31 SHOULD EXTEND THE TIME FOR APPEAL, AND IT IS THE
COURT'S RECOLLECTION THAT HE SO STATED TO COUNSEL. 

"BY DIRECTION OF THE COURT, I AM SENDING A COPY OF THIS LETTER TO
COUNSEL FOR THE DEFENDANT." 

IT THUS CLEARLY APPEARS THAT THE MARCH 5 ENTRY, WHICH WAS ACTUALLY
MADE BETWEEN MARCH 25 AND MARCH 29, WAS INTENDED TO BE THE FINAL
DECISION OR JUDGMENT OF THE DISTRICT COURT AND THAT THE APPEAL PERIOD
BEGAN TO RUN FROM THE DATE OF ACTUAL ENTRY.  THE MARCH 31 ORDER WAS
ENTERED AT THE GOVERNMENT'S INSISTENCE MERELY TO CONFORM TO A
SUGGESTION OF ONE JUSTICE OF THIS COURT TO THE EFFECT THAT "WE WOULD BE
GREATLY AIDED IF THE DISTRICT COURTS IN DISMISSING AN INDICTMENT WOULD
INDICATE IN THE ORDER THE GROUND, AND, IF MORE THAN ONE, WOULD
SEPARATELY STATE AND NUMBER THEM."  UNITED STATES V. SWIFT & CO., 318
U.S. 442, 446.  THAT ORDER WAS THUS NO MORE THAN A CLARIFICATION AND
REITERATION OF THE MARCH 5 JUDGMENT.  IT CANNOT BE CONSIDERED AS A
VACATION OF THE PRIOR JUDGMENT OR AS A NEW OR AMENDED JUDGMENT. 

THE VERY FACT THAT JUDGE SWEENEY STATED THAT THE MARCH 31 ORDER DID
NOT EXTEND THE TIME FOR APPEAL DEMONSTRATES HIS BELIEF AND INTENTION
THAT A VALID FINAL ORDER HAD THERETOFORE BEEN ENTERED.  SOME TIME AFTER
MARCH 31 THE DEPUTY CLERK ON HIS OWN INITIATIVE ORDERED THE MARCH 5
DOCKET ENTRY STRICKEN IN THE MISTAKEN BELIEF THAT IT HAD BEEN
SUPERSEDED.  IN ITS PLACE WAS INSERTED THE ENTRY:  "MARCH 31.  SWEENEY,
J. ORDER QUASHING INDICTMENT."  SUCH ACTION WAS OBVIOUSLY INSUFFICIENT
TO CHANGE EITHER JUDGE SWEENEY'S INTENTION OR THE FINALITY AND EFFECT
OF THE MARCH 5 ENTRY FOR PURPOSES OF APPEAL TO THIS COURT. 

VARYING AND UNCERTAIN RULES GOVERNING CRIMINAL APPEALS ARE TO BE
AVOIDED WHENEVER POSSIBLE.  YET THE EFFECT OF HOLDING THIS APPEAL TO BE
TIMELY IS TO INJECT INTO THE PROCEDURE OF THE COURT BELOW AN ELEMENT OF
CONFUSION AND DOUBT.  HERETOFORE PARTIES TO A CRIMINAL PROCEEDING IN
THE DISTRICT COURT OF MASSACHUSETTS WERE ENTITLED TO RELY ON THE DOCKET
ENTRY, FOLLOWING AN OPINION GRANTING A MOTION TO QUASH, AS THE FINAL
DECISION OR JUDGMENT.  THEY COULD CALCULATE APPEAL PERIODS FROM THE
DATE OF THAT ENTRY.  NOW THEY MUST RISK THE POSSIBILITY THAT AT AN
UNDETERMINABLE LATER DATE ONE OF THE PARTIES WILL CONVINCE THE COURT
THAT A FORMAL ORDER SHOULD BE ENTERED AND THAT THE TIME FOR APPEAL WILL
START FROM THAT DATE.  NO REASON OF LAW OR POLICY SUGGESTS ITSELF IN
SUPPORT OF SUCH UNCERTAINTY. 

JUDGED BY THE FIXED AND SIMPLE PRACTICE OF THE COURT BELOW IN
ENTERING ITS FINAL JUDGMENTS, THIS APPEAL CANNOT BE CONSIDERED TIMELY. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN IN THIS DISSENT. 
..END :








WALTON V. SOUTHERN PACKAGE CORP., 320 U.S. 540 


NO. 159.  ARGUED DECEMBER 17, 1943.  - DECIDED JANUARY 3, 1944.  - 194
MISS.  573, 11 SO.2D 912, REVERSED. 


A NIGHT WATCHMAN FOR A MANUFACTURING PLANT WHICH SHIPPED A SUBSTANTIAL
PORTION OF ITS PRODUCT IN INTERSTATE COMMERCE, HELD COVERED BY THE FAIR
LABOR STANDARDS ACT OF 1938, AS ONE ENGAGED IN AN "OCCUPATION NECESSARY
TO THE PRODUCTION" OF GOODS FOR INTERSTATE COMMERCE.  P. 542. 

WALTON, ADMINISTRATRIX, V. SOUTHERN PACKAGE CORPORATION. 

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI. 

CERTIORARI, POST, P. 726, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PETITIONER IN A SUIT TO RECOVER OVERTIME COMPENSATION AND
LIQUIDATED DAMAGES UNDER THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT AGAINST THE RESPONDENT BY AN EMPLOYEE, FRED
WALTON, IN A MISSISSIPPI STATE COURT TO RECOVER OVERTIME COMPENSATION
AND LIQUIDATED DAMAGES AS AUTHORIZED BY SEC. 16(B) OF THE FAIR LABOR
STANDARDS ACT OF 1938.  FN1  WALTON DIED BEFORE THE CASE WAS TRIED AND
THE SUIT WAS REVIVED BY HIS ADMINISTRATRIX, THE PETITIONER HERE.  A
JUDGMENT FOR THE PETITIONER RENDERED BY THE TRIAL COURT WAS REVERSED BY
THE MISSISSIPPI SUPREME COURT  FN2  ON THE GROUND THAT WALTON HAD NOT
BEEN EMPLOYED IN THE PRODUCTION OF GOODS FOR INTERSTATE COMMERCE OR IN
"ANY PROCESS OR OCCUPATION NECESSARY TO THE PRODUCTION THEREOF,"  FN3
AND THEREFORE WAS NOT COVERED BY THE ACT.  WE GRANTED CERTIORARI
BECAUSE THIS INTERPRETATION OF THE ACT RAISED A FEDERAL QUESTION OF
IMPORTANCE AND BECAUSE OF THE CLAIM BY PETITIONER THAT THE
INTERPRETATION WAS IN CONFLICT WITH OUR DECISION IN A. B. KIRSCHBAUM
CO. V. WALLING, 316 U.S. 517. 

THE CASE WAS TRIED ON AN AGREED STATEMENT OF FACTS WHICH IN BRIEF
SUMMARY SHOWED: 

THE RESPONDENT OPERATED A PLANT IN MISSISSIPPI IN WHICH VENEER WAS
MANUFACTURED FROM LOGS.  A SUBSTANTIAL PORTION OF THE MANUFACTURED
PRODUCT WAS DESTINED FOR SHIPMENT IN INTERSTATE COMMERCE.  WALTON
WORKED AT THE PLANT AS A NIGHT WATCHMAN.  HIS WORK WEEK EXCEEDED THE
MAXIMUM HOURS PRESCRIBED BY THE FAIR LABOR STANDARDS ACT DURING THE
PERIOD IN QUESTION.  HIS DUTIES WERE TO MAKE HOURLY ROUNDS OF THE
PLANT, PUNCH THE NIGHTWATCHMAN'S CLOCKS AT VARIOUS STATIONS ON THE
PLANT, AND REPORT ANY FIRES AND TRESPASSERS.  THE FIRE INSURANCE
COMPANY WHICH INSURED THE PLANT'S BUILDINGS, MACHINERY, AND FIXTURES
REQUIRED RESPONDENT TO HAVE A NIGHT WATCHMAN AS A CONDITION TO GRANTING
REDUCED PREMIUM RATES.  RESPONDENT'S DESIRE TO OBTAIN THESE REDUCED
RATES WAS THE PRIMARY REASON WHY WALTON WAS EMPLOYED.  THE PLANT WAS
NOT OPERATED AT NIGHT WHILE WALTON WAS ON DUTY AND HE DID NOT
PHYSICALLY ASSIST IN THE MANUFACTURE OR SHIPMENT OF VENEER. 

IN HOLDING THAT THESE FACTS FELL SHORT OF PROVING THAT WALTON'S WORK
WAS "NECESSARY TO THE PRODUCTION" OF RESPONDENT'S GOODS, THE
MISSISSIPPI SUPREME COURT PARTICULARLY EMPHASIZED THAT WALTON HAD NO
OTHER DUTIES TO PERFORM IN ADDITION TO HIS REGULAR DUTIES AS A NIGHT
WATCHMAN; THAT HE ENGAGED IN NO MANUAL ACTIVITIES CONNECTED WITH
PRODUCTION; THAT HE WAS NOT SPECIALLY EMPLOYED TO PROTECT GOODS
ASSEMBLED FOR MANUFACTURE OR AWAITING SHIPMENT IN INTERSTATE COMMERCE;
AND THAT NO GOODS WERE MANUFACTURED DURING THE HOURS HE WAS ON GUARD. 
UNDER OUR DECISION IN THE KIRSCHBAUM CASE, SUPRA, NO ONE OF THESE FACTS
STANDING ALONE, NOR ALL OF THEM TOGETHER, CAN SUPPORT THE COURT'S
CONCLUSION THAT THE NATURE OF WALTON'S EMPLOYMENT LEFT HIM WITHOUT THE
ACT'S PROTECTION.  HIS DUTY WAS TO AID IN PROTECTING THE BUILDING,
MACHINERY, AND EQUIPMENT FROM INJURY OR DESTRUCTION BY FIRE OR
TRESPASS.  THE VERY FACT THAT A FIRE INSURANCE COMPANY WAS WILLING TO
REDUCE ITS PREMIUMS UPON CONDITIONS THAT A NIGHT WATCHMAN BE KEPT ON
GUARD IS EVIDENCE THAT A WATCHMAN WOULD MAKE A VALUABLE CONTRIBUTION TO
THE CONTINUOUS PRODUCTION OF RESPONDENT'S GOODS.  "THE MAINTENANCE OF A
SAFE, HABITABLE BUILDING IS INDISPENSABLE TO THAT ACTIVITY."  A.B.
KIRSCHBAUM CO. V. WALLING, SUPRA, 524.  THE RELATIONSHIP OF WALTON'S
EMPLOYMENT TO PRODUCTION WAS THEREFORE NOT "TENUOUS" BUT HAD THAT
"CLOSE AND IMMEDIATE TIE WITH THE PROCESS OF PRODUCTION FOR COMMERCE"
WHICH BROUGHT HIM WITHIN THE COVERAGE OF THE ACT.  IBID., 525. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE MISSISSIPPI
SUPREME COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

FN1  52 STAT. 1069; U.S.C. TITLE 29, SEC. 216(B). 

FN2  194 MISS.  573, 11 SO.2D 912. 

FN3  SECTION 3(J) OF THE ACT PROVIDES THAT, "AN EMPLOYEE SHALL BE
DEEMED TO HAVE BEEN ENGAGED IN THE PRODUCTION OF GOODS IF SUCH EMPLOYEE
WAS EMPLOYED IN PRODUCING  ...  SUCH GOODS, OR IN ANY PROCESS OR
OCCUPATION NECESSARY TO THE PRODUCTION THEREOF."  52 STAT. 1061; U.S.C.
TITLE 29, SEC. 203(J). 

MR. JUSTICE ROBERTS, CONSIDERING HIMSELF BOUND BY THE DECISION IN
KIRSCHBAUM V. WALLING, 316 U.S. 517, CONCURS IN THE RESULT. 
..END :



UNITED STATES V. LAUDANI, 320 U.S. 543 


NO. 71.  ARGUED DECEMBER 16, 1943.  - DECIDED JANUARY 3, 1944.  - 134
F.2D 847, REVERSED. 


THE KICKBACK ACT OF JUNE 13, 1934, WHICH PROVIDES THAT "WHOEVER" SHALL
INDUCE ANY PERSON EMPLOYED ON ANY FEDERALLY FINANCED WORK "TO GIVE UP
ANY PART OF THE COMPENSATION TO WHICH HE IS ENTITLED UNDER HIS CONTRACT
OF EMPLOYMENT, BY FORCE, INTIMIDATION, THREAT OF PROCURING DISMISSAL
FROM SUCH EMPLOYMENT, OR BY ANY OTHER MANNER WHATSOEVER," SHALL BE
SUBJECT TO THE PENALTY THEREIN PRESCRIBED, HELD APPLICABLE TO A COMPANY
FOREMAN WHO HAD AUTHORITY TO HIRE AND DISCHARGE SUBORDINATES WHOM HE,
ON HIS OWN BEHALF AND FOR HIS OWN BENEFIT, COMPELLED TO SURRENDER A
PORTION OF THEIR WAGES.  P. 547. 

UNITED STATES V. LAUDANI. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 720, TO REVIEW THE REVERSAL OF A CONVICTION OF
VIOLATION OF THE FEDERAL KICKBACK ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

INDICTMENTS RETURNED IN A UNITED STATES DISTRICT COURT IN NEW JERSEY
CHARGED THAT THE RESPONDENT LAUDANI, WHILE ACTING AS A COMPANY FOREMAN
WITH AUTHORITY TO EMPLOY AND DISCHARGE WORKERS ON A PUBLIC WORKS
PROJECT FINANCED IN PART BY THE UNITED STATES, HAD CONTRARY TO SEC. 1
OF AN ACT OF JUNE 13, 1934,  FN1  FORCED CERTAIN OF HIS SUBORDINATES TO
GIVE HIM PART OF THEIR WAGES IN ORDER TO KEEP THEIR JOBS.  LAUDANI
MOVED TO QUASH, ASSIGNING AS ONE GROUND THAT THE INDICTMENTS FAILED TO
CHARGE CONDUCT PROHIBITED BY THIS ACT SINCE THEY DID NOT CONTAIN
ALLEGATIONS THAT HE WAS THE EMPLOYER OF THE COERCED MEN OR THAT HE HAD
ACTED AS AGENT OF THE EMPLOYER IN FORCING THE PAYMENTS.  THE GIST OF
HIS CONTENTION WAS THAT THE PROHIBITION OF THE ACT EXTENDS ONLY TO
EMPLOYERS AND PERSONS WHO ACT IN CONCERT WITH THEM.  THE DISTRICT COURT
CONCLUDED THAT THE ACT APPLIED TO A FOREMAN SUCH AS LAUDANI, OVERRULED
HIS MOTION, AND A JURY CONVICTED HIM.  THE CIRCUIT COURT OF APPEALS
ACCEPTED LAUDANI'S CONTENTION, REVERSED THE JUDGMENT, AND DIRECTED THAT
THE INDICTMENTS BE QUASHED.  134 F.2D 847.  THE PUBLIC IMPORTANCE OF
THE QUESTION PRESENTED PROMPTED US TO GRANT CERTIORARI. 

BOTH THE LANGUAGE AND HISTORY OF THE KICKBACK ACT ARGUE AGAINST THE
CONCLUSION THAT CONGRESS INTENDED ITS PROHIBITION TO APPLY ONLY TO
EMPLOYERS AND NOT TO FOREMEN WHO EXERCISE MANY OF THE POWERS OF
EMPLOYERS.  THE ACT PUNISHES "WHOEVER" SHALL INDUCE ANY PERSON EMPLOYED
ON A FEDERALLY FINANCED WORK "TO GIVE UP ANY PART OF THE COMPENSATION
TO WHICH HE IS ENTITLED UNDER HIS CONTRACT OF EMPLOYMENT" BY "FORCE,
INTIMIDATION, THREAT OF PROCURING DISMISSAL FROM SUCH EMPLOYMENT, OR BY
ANY OTHER MANNER WHATSOEVER."  FN2  THE SWEEP OF THE WORD "WHOEVER," IF
THAT WORD STOOD ALONE, WOULD BE WIDE ENOUGH TO INCLUDE NOT ONLY AN
EMPLOYER BUT ANY OTHER PERSON.  AND THE COERCIVE METHODS OF INDUCEMENT
EXPRESSLY PROHIBITED BY THE ACT ARE METHODS IN WHICH AT LEAST SOME
PERSONS OTHER THAN EMPLOYERS COULD ENGAGE WITHOUT LEGAL CAUSE OR
EXCUSE. 

THE CIRCUIT COURT OF APPEALS POINTED OUT, HOWEVER, THAT IF THE WORD
"WHOEVER" BE GIVEN ITS BROADEST SCOPE THE ACT MIGHT INCLUDE COMMON
BLACKMAILERS WHO HAVE NO RELATIONSHIP TO THEIR VICTIMS' EMPLOYMENT.  IN
AN EFFORT TO AVOID WHAT IT CONSIDERED TO BE SUCH AN EXTREME APPLICATION
OF THE ACT, THE COURT FOCUSED ATTENTION ON THE CLAUSE "TO GIVE UP ANY
PART OF THE COMPENSATION TO WHICH HE IS ENTITLED UNDER HIS CONTRACT OF
EMPLOYMENT."  VIEWING THIS CLAUSE AS PROOF THAT THE PURPOSE OF CONGRESS
WAS TO PROTECT THE EMPLOYEES' CONTRACTUAL RIGHTS TO RECEIVE WAGES FROM
THEIR EMPLOYER, THE COURT REASONED THAT NO ONE BUT THE EMPLOYER OR ONE
ACTING ON HIS BEHALF POSSESSED "THE REQUISITE PRIVITY OF CONTRACT" WITH
THE EMPLOYEES TO BE CAPABLE OF IMPAIRING THESE RIGHTS.  HAVING THUS
EMPHASIZED THE CONGRESSIONAL REFERENCE TO A "CONTRACT OF EMPLOYMENT,"
THE COURT STATED BROADLY THAT, "WHAT HAPPENS TO THE COMPENSATION AFTER
THE EMPLOYEE HAS RECEIVED IT IN FULL, AND WHOLLY WITHOUT RELATION TO OR
EFFECT UPON HIS CONTRACT OF EMPLOYMENT, IS A MATTER WITH WHICH THIS
STATUTE DOES NOT PURPORT TO DEAL." 

THE COURT'S STATEMENT MIGHT HAVE BEEN PERTINENT HAD THE INDICTMENTS
HERE BEEN AGAINST A COMMON BLACKMAILER, EXTORTIONER, OR SOME OTHER
PERSON NOT ALLEGED TO HAVE BEEN VESTED BY THE EMPLOYER WITH POWER TO
FIX AND TERMINATE THE EMPLOYER-EMPLOYEE STATUS.  BUT WE THINK THAT THE
COERCED SURRENDER OF WAGES BY EMPLOYEES AT THE INSTANCE OF A COMPANY
FOREMAN GIVEN AUTHORITY BY HIS EMPLOYER TO HIRE AND DISCHARGE THEM
CANNOT PROPERLY BE SAID TO BEAR NO RELATION TO OR HAVE NO EFFECT UPON
THEIR CONTRACTS OF EMPLOYMENT, ESPECIALLY WHERE, AS HERE ALLEGED, THE
SURRENDER OF WAGES WAS INDUCED BY THE FOREMAN'S EXPRESS THREAT TO
DISMISS ALL EMPLOYEES WHO DID NOT COMPLY WITH HIS DEMAND.  EXECUTION OF
SUCH A THREAT AGAINST EMPLOYEES UNWILLING TO PAY WOULD IMMEDIATELY AND
COMPLETELY HAVE TERMINATED THEIR EMPLOYMENT CONTRACTS.  WE FIND NOTHING
IN THE ACT WHICH SUGGESTS THAT, UNDER THESE CIRCUMSTANCES, A FOREMAN
MUST BE DEEMED INCAPABLE OF VIOLATING ITS PROVISIONS MERELY BECAUSE HE
MAY NOT STAND IN THAT RELATIONSHIP TO EMPLOYEES WHICH THE CIRCUIT COURT
CHARACTERIZED AS "PRIVITY OF CONTRACT." 

THE PURPOSE OF THE ACT UNDER CONSIDERATION IS TO EXTEND PROTECTION
NOT MERELY TO THE LEGAL FORM OF EMPLOYMENT CONTRACTS BUT TO THE
SUBSTANTIVE RIGHTS OF WORKERS ACTUALLY TO RECEIVE THE BENEFIT OF THE
WAGE SCHEDULES WHICH CONGRESS HAS PROVIDED FOR THEM.  THE EVIL AIMED AT
WAS THE WRONGFUL DEPRIVATION OF FULL WORK PAYMENTS.  THE ACT WAS
ADOPTED NEAR THE BOTTOM OF A GREAT BUSINESS DEPRESSION AS ONE PART OF A
BROAD CONGRESSIONAL PROGRAM THE GOAL OF WHICH WAS TO STRENGTHEN THE
DOMESTIC ECONOMY BY INCREASING THE PURCHASING POWER OF THE NATION'S
CONSUMERS.  TO THIS END, CONGRESS ENACTED LEGISLATION DESIGNED TO
RELIEVE WIDESPREAD UNEMPLOYMENT AND ENABLE WORKING PEOPLE TO EARN JUST
AND REASONABLE WAGES.  A LARGE PROGRAM FOR FEDERAL FINANCING OF PUBLIC
WORKS WAS ESTABLISHED,  FN3  AND LEGISLATION WAS PASSED REQUIRING
GOVERNMENT CONTRACTORS TO PAY CERTAIN MINIMUM WAGE RATES.  FN4  IT WAS
THE PURPOSE OF THE KICKBACK ACT TO ASSURE THAT THE FEDERAL FUNDS THUS
PROVIDED FOR WORKERS SHOULD ACTUALLY BE RECEIVED BY THEM FOR THEIR OWN
USE EXCEPT WHERE DIVERTED UNDER AUTHORITY OF LAW OR A WORKER'S
VOLUNTARY AGREEMENT.  FN5 

IN VIEW OF THIS BACKGROUND, WE CANNOT HOLD THAT CONGRESS INTENDED TO
EXCLUDE FROM THE ACT'S PROSCRIPTION A FOREMAN WITH THE AUTHORITY
LAUDANI IS ALLEGED TO HAVE POSSESSED.  FOREMEN VESTED WITH FULL POWER
TO EMPLOY AND DISCHARGE SUBORDINATES COULD FRUSTRATE THE OBJECTIVE OF
THE ACT JUST AS EFFECTIVELY AS COULD THEIR EMPLOYERS, AND FOREMEN NOT
GIVEN SUCH BROAD POWERS MIGHT NEVERTHELESS BE ABLE TO USE THEIR
AUTHORITY TO ACCOMPLISH THE SAME RESULT.  THAT FOREMEN NOT ONLY COULD
BUT MIGHT DO THIS VERY THING WAS TESTIFIED AT SENATE HEARINGS WHEN THE
PROBLEM OF "KICKBACKS" WAS UNDER STUDY.  FN6  AND THE MEMBERS OF THE
SENATE COMMITTEE ON THE JUDICIARY REPORTING THE BILL USED LANGUAGE
BROAD ENOUGH TO INCLUDE FOREMEN AMONG OTHERS WHEN THEY SAID THAT
HEARINGS HAD REVEALED, "THAT LARGE SUMS OF MONEY HAVE BEEN EXTRACTED
FROM THE POCKETS OF AMERICAN LABOR, TO ENRICH CONTRACTORS,
SUBCONTRACTORS, AND THEIR OFFICIALS."  FN7 

TO HOLD THAT A COMPANY FOREMAN VESTED WITH SUFFICIENT POWER
SUBSTANTIALLY TO AFFECT HIS SUBORDINATES' CONTRACTS OF EMPLOYMENT IS
WITHIN THE ACT'S PROSCRIPTION IS NOT TO HOLD THAT THE ACT APPLIES TO
EVERY EXTORTIONER, BLACKMAILER, OR OTHER PERSON WHO EXTRACTS MONEY FROM
ONE WHO HAS PREVIOUSLY RECEIVED IT FOR LABOR ON A FEDERALLY FINANCED
PROJECT.  WE NEED NOT, AT THIS TIME, ATTEMPT TO DELINEATE THE OUTSIDE
SCOPE OF THE ACT'S APPLICATION.  BUT THE PURPOSE OF THE LEGISLATION, NO
LESS THAN ITS LANGUAGE, SHOWS THAT THE POWER TO EMPLOY AND DISCHARGE
BRINGS AN EMPLOYING COMPANY'S FOREMAN WITHIN ITS PROHIBITION. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED, AND THE
CAUSE IS REMANDED TO THAT COURT FOR CONSIDERATION AND DISPOSITION OF
OTHER QUESTIONS NOT HERE INVOLVED.  REVERSED. 

FN1  THIS ACT IS COMMONLY KNOWN AS THE "KICKBACK" ACT.  SECTION 1
PROVIDES THAT, "WHOEVER SHALL INDUCE ANY PERSON EMPLOYED IN THE
CONSTRUCTION, PROSECUTION, OR COMPLETION OF ANY PUBLIC BUILDING, PUBLIC
WORK, OR BUILDING OR WORK FINANCED IN WHOLE OR IN PART BY LOANS OR
GRANTS FROM THE UNITED STATES, OR IN THE REPAIR THEREOF TO GIVE UP ANY
PART OF THE COMPENSATION TO WHICH HE IS ENTITLED UNDER HIS CONTRACT OF
EMPLOYMENT, BY FORCE, INTIMIDATION, THREAT OF PROCURING DISMISSAL FROM
SUCH EMPLOYMENT, OR BY ANY OTHER MANNER WHATSOEVER, SHALL BE FINED NOT
MORE THAN $5,000, OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH."  48
STAT. 948; U.S.C. TITLE 40, SEC. 276B. 

FN2  IBID. 

FN3  THE GRANT OF MONEY FOR THE WORK ON WHICH LAUDANI WAS EMPLOYED
WAS AUTHORIZED BY TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT
ENACTED JUNE 16, 1933, NEAR THE BOTTOM OF THE DEPRESSION.  SECTION 1 OF
THIS ACT DECLARED THAT THE POLICY OF CONGRESS WAS "  ...  TO INCREASE
THE CONSUMPTION OF INDUSTRIAL AND AGRICULTURAL PRODUCTS BY INCREASING
PURCHASING POWER, TO REDUCE AND RELIEVE UNEMPLOYMENT, TO IMPROVE
STANDARDS OF LABOR, AND OTHERWISE TO REHABILITATE INDUSTRY AND TO
CONSERVE NATURAL RESOURCES."  48 STAT. 195. 

FN4  TITLE II, SEC. 206, OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF
JUNE 16, 1933, PROVIDES IN PART THAT, "ALL CONTRACTS LET FOR
CONSTRUCTION PROJECTS AND ALL LOANS AND GRANTS PURSUANT TO THIS TITLE
SHALL CONTAIN SUCH PROVISIONS AS ARE NECESSARY TO INSURE  ...  THAT ALL
EMPLOYEES SHALL BE PAID JUST AND REASONABLE WAGES WHICH SHALL BE
COMPENSATION SUFFICIENT TO PROVIDE, FOR THE HOURS OF LABOR AS LIMITED,
A STANDARD OF LIVING IN DECENCY AND COMFORT  ...  "  48 STAT. 204-205;
U.S.C. TITLE 40, SEC. 406.  SEE ALSO AN ACT OF MARCH 3, 1931, AS
AMENDED, COMMONLY KNOWN AS THE DAVIS-BACON ACT, 46 STAT. 1494; 49 STAT.
1011; 54 STAT. 399; U.S.C. TITLE 40, SECS. 276A-276A-5; PERKINS V.
LUKENS STEEL CO., 310 U.S. 113, 128. 

FN5  SEE REPORT OF THE HOUSE COMMITTEE ON THE JUDICIARY ON BILL S.
3041, H. REP. NO. 1750, 73D CONG., 2D SESS.  THE REPORT PRINTED A
LETTER FROM THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS, HAROLD
L. ICKES, WHICH URGED IMMEDIATE PASSAGE OF THE BILL "TO PREVENT A VERY
PREVALENT EVIL IN THE CONSTRUCTION INDUSTRY WHICH, TO THE EXTENT THAT
IT EXISTS ON PUBLIC WORKS PROJECTS, DEFEATS THE PURPOSE OF TITLE II OF
THE NATIONAL INDUSTRIAL RECOVERY ACT AND THE SUCCESS OF OUR PUBLIC
WORKS PROGRAM." 

FN6  SEE, FOR EXAMPLE, HEARINGS, SUBCOMMITTEE OF SENATE COMMITTEE ON
COMMERCE, S. RES. 74, 73D CONG., 2D SESS., VOL. I, PP. 790-792, 801,
826. 

FN7  S. REP. NO. 803, 73D CONG., 2D SESS.
..END :




















FALBO V. UNITED STATES, 320 U.S. 549 


NO. 73.  ARGUED NOVEMBER 19, 1943.  - DECIDED JANUARY 3, 1944.  - 135
F.2D 464, AFFIRMED. 


1.  IN A CRIMINAL PROSECUTION UNDER THE SELECTIVE TRAINING AND SERVICE
ACT OF 1940 FOR WILLFUL FAILURE TO OBEY A LOCAL BOARD'S ORDER TO REPORT
FOR ASSIGNMENT TO WORK OF NATIONAL IMPORTANCE, IT IS NO DEFENSE THAT
THE REGISTRANT'S CLASSIFICATION AS A CONSCIENTIOUS OBJECTOR RATHER THAN
AS A MINISTER WAS ERRONEOUS.  P. 554. 

2.  ASSUMING A CONSTITUTIONAL REQUIREMENT THAT JUDICIAL REVIEW BE
AVAILABLE TO TEST THE VALIDITY OF THE BOARD'S CLASSIFICATION, CONGRESS
WAS NOT REQUIRED TO PROVIDE FOR SUCH REVIEW PRIOR TO FINAL ACCEPTANCE
OF THE REGISTRANT FOR SERVICE.  P. 554. 

FALBO V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 320 U.S. 209, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR VIOLATION OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS INDICTED ON NOVEMBER 12, 1942, IN A FEDERAL
DISTRICT COURT IN PENNSYLVANIA FOR KNOWINGLY FAILING TO PERFORM A DUTY
REQUIRED OF HIM UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. 
FN1 THE PARTICULAR CHARGE WAS THAT, AFTER HIS LOCAL BOARD HAD
CLASSIFIED HIM AS A CONSCIENTIOUS OBJECTOR, HE WILFULLY FAILED TO OBEY
THE BOARD'S ORDER TO REPORT FOR ASSIGNMENT TO WORK OF NATIONAL
IMPORTANCE.  FN2  ADMITTING THAT HIS REFUSAL TO OBEY THE ORDER WAS
WILFUL, PETITIONER DEFENDED HIS CONDUCT ON THE GROUND THAT HE WAS
ENTITLED TO A STATUTORY EXEMPTION FROM ALL FORMS OF NATIONAL SERVICE,
SINCE THE FACTS HE HAD PRESENTED TO THE BOARD SHOWED THAT HE WAS A
"REGULAR OR DULY ORDAINED" MINISTER.  FN3  THE ACT, HE ARGUED, DOES NOT
MAKE IT A CRIME TO REFUSE TO OBEY AN ORDER TO REPORT FOR SERVICE IF
THAT ORDER IS BASED UPON AN ERRONEOUS CLASSIFICATION, BECAUSE THERE IS
NO "DUTY" TO COMPLY WITH A MISTAKEN ORDER.  THIS DEFENSE WAS SEASONABLY
URGED BUT THE DISTRICT COURT DECLINED TO RECOGNIZE IT, EXPRESSING THE
VIEW THAT, "THE BOARD HAS THE DECISION OF WHETHER OR NOT THIS MAN IS TO
BE LISTED AS HE CLAIMS HE SHOULD BE"; AND AT THE CONCLUSION OF THE
TRIAL THE JURY WAS CHARGED THAT, "IF YOU FIND FROM THE FACTS THAT HE
FAILED TO REPORT - AND THERE IS NO EVIDENCE TO THE CONTRARY  ...  - IT
WOULD BE YOUR DUTY TO FIND HIM GUILTY."  THE RESULT OF THE TRIAL WAS A
CONVICTION AND SENTENCE TO IMPRISONMENT FOR FIVE YEARS. 

ON APPEAL PETITIONER URGED THAT THE DISTRICT COURT HAD ERRED IN
REFUSING TO PERMIT A TRIAL DE NOVO ON THE MERITS OF HIS CLAIMED
EXEMPTION.  IN THE ALTERNATIVE, HE ARGUED THAT AT LEAST THE COURT
SHOULD HAVE REVIEWED THE CLASSIFICATION ORDER TO ASCERTAIN WHETHER THE
LOCAL BOARD HAD BEEN "PREJUDICIAL, UNFAIR, AND ARBITRARY" IN THAT IT
HAD FAILED TO ADMIT CERTAIN EVIDENCE WHICH HE OFFERED, HAD ACTED ON THE
BASIS OF AN ANTIPATHY TO THE RELIGIOUS SECT OF WHICH HE IS A MEMBER,
AND HAD REFUSED TO CLASSIFY HIM AS A MINISTER AGAINST THE OVERWHELMING
WEIGHT OF THE EVIDENCE.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE
DISTRICT COURT PER CURIAM, 135 F.2D 464.  WE GRANTED CERTIORARI BECAUSE
OF THE IMPORTANCE OF THE PROBLEMS INVOLVED RELATING TO ADMINISTRATION
OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, UPON WHICH PROBLEMS
THE CIRCUIT COURTS OF APPEALS HAVE NOT EXPRESSED UNIFORM VIEWS.  FN4 

WHEN THE SELECTIVE TRAINING AND SERVICE ACT WAS PASSED IN SEPTEMBER,
1940, MOST OF THE WORLD WAS AT WAR.  THE PREAMBLE OF THE ACT DECLARED
IT "IMPERATIVE TO INCREASE AND TRAIN THE PERSONNEL OF THE ARMED FORCES
OF THE UNITED STATES."  THE DANGER OF ATTACK BY OUR PRESENT ENEMIES, IF
NOT IMMINENT, WAS REAL, AS SUBSEQUENT EVENTS HAVE GRIMLY DEMONSTRATED. 
THE CONGRESS WAS FACED WITH THE URGENT NECESSITY OF INTEGRATING ALL THE
NATION'S PEOPLE AND FORCES FOR NATIONAL DEFENSE.  THAT DIRE
CONSEQUENCES MIGHT FLOW FROM APATHY AND DELAY WAS WELL UNDERSTOOD. 
ACCORDINGLY THE ACT WAS PASSED TO MOBILIZE NATIONAL MANPOWER WITH THE
SPEED WHICH THAT NECESSITY AND UNDERSTANDING REQUIRED. 

THE MOBILIZATION SYSTEM WHICH CONGRESS ESTABLISHED BY THE ACT IS
DESIGNED TO OPERATE AS ONE CONTINUOUS PROCESS FOR THE SELECTION OF MEN
FOR NATIONAL SERVICE.  UNDER THE SYSTEM, DIFFERENT AGENCIES ARE
ENTRUSTED WITH DIFFERENT FUNCTIONS BUT THE WORK OF EACH IS INTEGRATED
WITH THAT OF THE OTHERS.  SELECTION OF REGISTRANTS FOR SERVICE, AND
DEFERMENTS OR EXEMPTIONS FROM SERVICE, ARE TO BE EFFECTED WITHIN THE
FRAMEWORK OF THIS MACHINERY AS IMPLEMENTED BY RULES AND REGULATIONS
PRESCRIBED BY THE PRESIDENT.  FN5  THE SELECTIVE SERVICE PROCESS BEGINS
WITH REGISTRATION WITH A LOCAL BOARD COMPOSED OF LOCAL CITIZENS.  THE
REGISTRANT THEN SUPPLIES CERTAIN INFORMATION ON A QUESTIONNAIRE
FURNISHED BY THE BOARD.  ON THE BASIS OF THAT INFORMATION AND, WHERE
APPROPRIATE, A PHYSICAL EXAMINATION, THE BOARD CLASSIFIES HIM IN
ACCORDANCE WITH STANDARDS CONTAINED IN THE ACT AND THE SELECTIVE
SERVICE REGULATIONS.  IT THEN NOTIFIES HIM OF HIS CLASSIFICATION.  THE
REGISTRANT MAY CONTEST HIS CLASSIFICATION BY A PERSONAL APPEARANCE
BEFORE THE LOCAL BOARD, AND IF THAT BOARD REFUSES TO ALTER THE
CLASSIFICATION, BY CARRYING HIS CASE TO A BOARD OF APPEAL,  FN6 AND
THENCE, IN CERTAIN CIRCUMSTANCES, TO THE PRESIDENT. 

ONLY AFTER HE HAS EXHAUSTED THIS PROCEDURE IS A PROTESTING REGISTRANT
ORDERED TO REPORT FOR SERVICE.  IF HE HAS BEEN CLASSIFIED FOR MILITARY
SERVICE, HIS LOCAL BOARD ORDERS HIM TO REPORT FOR INDUCTION INTO THE
ARMED FORCES.  IF HE HAS BEEN CLASSIFIED A CONSCIENTIOUS OBJECTOR
OPPOSED TO NONCOMBATANT MILITARY SERVICE, AS WAS PETITIONER, HE
ULTIMATELY IS ORDERED BY THE LOCAL BOARD TO REPORT FOR WORK OF NATIONAL
IMPORTANCE.  IN EACH CASE THE REGISTRANT IS UNDER THE SAME OBLIGATION
TO OBEY THE ORDER.  BUT IN NEITHER CASE IS THE ORDER TO REPORT THE
EQUIVALENT OF ACCEPTANCE FOR SERVICE.  COMPLETION OF THE FUNCTIONS OF
THE LOCAL BOARDS AND APPELLATE AGENCIES, IMPORTANT AS ARE THESE
FUNCTIONS, IS NOT THE END OF THE SELECTIVE SERVICE PROCESS.  THE
SELECTEE MAY STILL BE REJECTED AT THE INDUCTION CENTER AND THE
CONSCIENTIOUS OBJECTOR WHO IS OPPOSED TO NON-COMBATANT DUTY MAY BE
REJECTED AT THE CIVILIAN PUBLIC SERVICE CAMP.  FN7  THE CONNECTED
SERIES OF STEPS INTO THE NATIONAL SERVICE WHICH BEGINS WITH
REGISTRATION WITH THE LOCAL BOARD DOES NOT END UNTIL THE REGISTRANT IS
ACCEPTED BY THE ARMY, NAVY, OR CIVILIAN PUBLIC SERVICE CAMP.  THUS A
BOARD ORDER TO REPORT IS NO MORE THAN A NECESSARY INTERMEDIATE STEP IN
A UNITED AND CONTINUOUS PROCESS DESIGNED TO RAISE AN ARMY SPEEDILY AND
EFFICIENTLY. 

IN THIS PROCESS THE LOCAL BOARD IS CHARGED IN THE FIRST INSTANCE WITH
THE DUTY TO MAKE THE CLASSIFICATION OF REGISTRANTS WHICH CONGRESS IN
ITS COMPLETE DISCRETION  FN8  SAW FIT TO AUTHORIZE.  EVEN IF THERE
WERE, AS THE PETITIONER ARGUES, A CONSTITUTIONAL REQUIREMENT THAT
JUDICIAL REVIEW MUST BE AVAILABLE TO TEST THE VALIDITY OF THE DECISION
OF THE LOCAL BOARD, IT IS CERTAIN THAT CONGRESS WAS NOT REQUIRED TO
PROVIDE FOR JUDICIAL INTERVENTION BEFORE FINAL ACCEPTANCE OF AN
INDIVIDUAL FOR NATIONAL SERVICE.  THE NARROW QUESTION THEREFORE
PRESENTED BY THIS CASE IS WHETHER CONGRESS HAS AUTHORIZED JUDICIAL
REVIEW OF THE PROPRIETY OF A BOARD'S CLASSIFICATION IN A CRIMINAL
PROSECUTION FOR WILFUL VIOLATION OF AN ORDER DIRECTING A REGISTRANT TO
REPORT FOR THE LAST STEP IN THE SELECTIVE PROCESS. 

WE THINK IT HAS NOT.  THE ACT NOWHERE EXPLICITLY PROVIDES FOR SUCH
REVIEW AND WE HAVE FOUND NOTHING IN ITS LEGISLATIVE HISTORY WHICH
INDICATES AN INTENTION TO AFFORD IT.  THE CIRCUMSTANCES UNDER WHICH THE
ACT WAS ADOPTED LEND NO SUPPORT TO A VIEW WHICH WOULD ALLOW LITIGIOUS
INTERRUPTION OF THE PROCESS OF SELECTION WHICH CONGRESS CREATED.  TO
MEET THE NEED WHICH IT FELT FOR MOBILIZING NATIONAL MANPOWER IN THE
SHORTEST PRACTICABLE PERIOD, CONGRESS ESTABLISHED A MACHINERY WHICH IT
DEEMED EFFICIENT FOR INDUCTING GREAT NUMBERS OF MEN INTO THE ARMED
FORCES.  CAREFUL PROVISION WAS MADE FOR FAIR ADMINISTRATION OF THE
ACT'S POLICIES WITHIN THE FRAMEWORK OF THE SELECTIVE SERVICE PROCESS. 
BUT CONGRESS APPARENTLY REGARDED "A PROMPT AND UNHESITATING OBEDIENCE
TO ORDERS" ISSUED IN THAT PROCESS "INDISPENSABLE TO THE COMPLETE
ATTAINMENT OF THE OBJECT" OF NATIONAL DEFENSE.  MARTIN V. MOTT, 12
WHEAT.  19, 30.  SURELY IF CONGRESS HAD INTENDED TO AUTHORIZE
INTERFERENCE WITH THAT PROCESS BY INTERMEDIATE CHALLENGES OF ORDERS TO
REPORT, IT WOULD HAVE SAID SO. 

AGAINST THIS BACKGROUND THE COMPLETE ABSENCE OF ANY PROVISION FOR
SUCH CHALLENGES IN THE VERY SECTION PROVIDING FOR PROSECUTION OF
VIOLATIONS IN THE CIVIL COURTS PERMITS NO OTHER INFERENCE THAN THAT
CONGRESS DID NOT INTEND THEY COULD BE MADE.  THE INSTANT CASE OFFERS A
STRIKING EXAMPLE OF THE CONSEQUENCES OF ANY OTHER VIEW.  PETITIONER, 25
YEARS OF AGE, UNMARRIED, AND APPARENTLY IN GOOD HEALTH, REGISTERED WITH
HIS LOCAL BOARD ON OCTOBER 16, 1940.  HE CLAIMED EXEMPTION AUGUST 23,
1941.  CONSIDERATION OF HIS CLAIM BY THE LOCAL BOARD AND THE BOARD OF
APPEAL DELAYED HIS CLASSIFICATION, SO THAT HIS FINAL ORDER TO REPORT
WAS NOT ISSUED UNTIL SEPTEMBER 2, 1942.  TODAY, ONE YEAR AND FOUR
MONTHS AFTER THIS ORDER, HE IS STILL LITIGATING THE QUESTION. 
AFFIRMED. 

FN1  54 STAT. 885; 50 U.S.C. APPENDIX SECS. 301-318.  SECTION 11
IMPOSES CRIMINAL SANCTIONS FOR WILFUL FAILURE OR NEGLECT TO PERFORM ANY
DUTY REQUIRED BY THE ACT OR BY RULES OR REGULATIONS MADE PURSUANT TO
THE ACT. 

FN2  UNDER SEC. 5(G) OF THE ACT, A REGISTRANT WHO "BY REASON OF
RELIGIOUS TRAINING AND BELIEF" IS CONSCIENTIOUSLY OPPOSED TO
PARTICIPATION IN WAR MAY BE INDUCTED INTO THE LAND OR NAVAL FORCES BUT
MUST BE ASSIGNED TO NONCOMBATANT SERVICE AS DEFINED BY THE PRESIDENT. 
IF FOR SIMILAR REASONS A REGISTRANT IS CONSCIENTIOUSLY OPPOSED EVEN TO
PARTICIPATION IN NONCOMBATANT SERVICE HE IS NOT TO BE INDUCTED INTO THE
ARMED FORCES AT ALL BUT "SHALL  ...  BE ASSIGNED TO WORK OF NATIONAL
IMPORTANCE UNDER CIVILIAN DIRECTION."  REGULATIONS, NOT HERE
CHALLENGED, IMPOSE ON SELECTEES A DUTY TO OBEY BOARD ORDERS TO REPORT
FOR INDUCTION OR ASSIGNMENT. 

FN3  SECTION 5(D) OF THE ACT PROVIDES IN PART:  "REGULAR OR DULY
ORDAINED MINISTERS OF RELIGION ...  SHALL BE EXEMPT FROM TRAINING AND
SERVICE (BUT NOT FROM REGISTRATION) UNDER THIS ACT."  THE LOCAL BOARD
REFUSED TO FIND THAT PETITIONER WAS A MINISTER AND FURTHER DECLINED TO
CLASSIFY HIM AS A CONSCIENTIOUS OBJECTOR.  UPON REVIEW A BOARD OF
APPEAL, SET UP UNDER SEC. 10(A)(2), SUSTAINED THE LOCAL BOARD'S REFUSAL
TO EXEMPT PETITIONER AS A MINISTER, BUT DIRECTED THAT HE BE CLASSIFIED
AS A CONSCIENTIOUS OBJECTOR. 

FN4  SEE, FOR EXAMPLE, GOFF V. UNITED STATES, 135 F.2D 610,
612(C.C.A. 4); RASE V. UNITED STATES, 129 F.2D 204, 207(C.C.A. 6); EX
PARTE CATANZARO, 138 F.2D 100, 101(C.C.A. 3); UNITED STATES V. KAUTEN,
133 F.2D 703, 706, 707(C.C.A. 2); UNITED STATES V. GRIEME, 128 F.2D
811, 814, 815(C.C.A. 3). 

FN5  SECTION 10(A)(2) OF THE ACT PROVIDES IN PART THAT "  ...  LOCAL
BOARDS, UNDER RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT, SHALL
HAVE POWER WITHIN THEIR RESPECTIVE JURISDICTIONS TO HEAR AND DETERMINE,
SUBJECT TO THE RIGHT OF APPEAL TO THE APPEAL BOARDS HEREIN AUTHORIZED,
ALL QUESTIONS OR CLAIMS WITH RESPECT TO INCLUSION FOR, OR EXEMPTION OR
DEFERMENT FROM, TRAINING AND SERVICE UNDER THIS ACT OF ALL INDIVIDUALS
WITHIN THE JURISDICTION OF SUCH LOCAL BOARDS.  THE DECISIONS OF SUCH
LOCAL BOARDS SHALL BE FINAL EXCEPT WHERE AN APPEAL IS AUTHORIZED IN
ACCORDANCE WITH SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY
PRESCRIBE."  PURSUANT TO THE GRANT OF AUTHORITY CONFERRED BY THE ACT
THE PRESIDENT, THROUGH APPROPRIATE EXECUTIVE AGENCIES, HAS PROMULGATED
AND FROM TIME TO TIME AMENDED COMPREHENSIVE SELECTIVE SERVICE
REGULATIONS. 

FN6  A REGISTRANT MAY NOT, HOWEVER, APPEAL FROM THE DETERMINATION OF
HIS PHYSICAL OR MENTAL CONDITION.  SELECTIVE SERVICE REGULATIONS, SEC.
627.2(A). 

FN7  SECTION 3(A) OF THE ACT PROVIDES IN PART THAT "  ...  NO MAN
SHALL BE INDUCTED FOR TRAINING AND SERVICE UNDER THIS ACT UNLESS AND
UNTIL HE IS ACCEPTABLE TO THE LAND OR NAVAL FORCES FOR SUCH TRAINING
AND SERVICE AND HIS PHYSICAL AND MENTAL FITNESS FOR SUCH TRAINING AND
SERVICE HAS BEEN SATISFACTORILY DETERMINED:  ...  "  WE ARE INFORMED BY
THE GOVERNMENT THAT PURSUANT TO THIS SECTION APPROXIMATELY FORTY PER
CENT OF THE SELECTEES WHO REPORT UNDER ORDERS OF LOCAL BOARDS FOR
INDUCTION INTO THE ARMED FORCES ARE REJECTED, AND THAT, AS OF OCTOBER
15, 1943, SIX HUNDRED AND TEN OF THE EIGHT THOUSAND SELECTEES WHO HAD
REPORTED FOR CIVILIAN WORK OF NATIONAL IMPORTANCE HAD BEEN REJECTED. 

FN8  SEE HAMILTON V. REGENTS, CONCURRING OPINION, 293 U.S. 245, 265,
266-268; SEE ALSO JACOBSON V. MASSACHUSETTS, 197 U.S. 11, 29; MACINTOSH
V. UNITED STATES, 42 F.2D 845, 847, 848; 283 U.S. 605, DISSENTING
OPINION, 627, 632; UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S.
289, 305. 

MR. JUSTICE RUTLEDGE, CONCURRING: 

I CONCUR IN THE RESULT AND IN THE OPINION OF THE COURT EXCEPT IN ONE
RESPECT.  PETITIONER CLAIMS THE LOCAL BOARD'S ORDER OF CLASSIFICATION
WAS INVALID BECAUSE THAT BOARD REFUSED TO CLASSIFY PETITIONER AS A
MINISTER ON THE BASIS OF AN ANTIPATHY TO THE RELIGIOUS SECT OF WHICH HE
IS A MEMBER.  AND, IF THE QUESTION WERE OPEN, THE RECORD DISCLOSES THAT
SOME EVIDENCE TENDERED TO SUSTAIN THIS CHARGE WAS EXCLUDED IN THE TRIAL
COURT.  BUT PETITIONER HAS MADE NO SUCH CHARGE CONCERNING THE ACTION OF
THE APPEAL BOARD WHICH REVIEWED AND AFFIRMED THE LOCAL BOARD'S ORDER. 
AND THERE IS NOTHING TO SHOW THAT THE APPEAL BOARD ACTED OTHERWISE THAN
ACCORDING TO LAW.  IF THEREFORE THE LOCAL BOARD'S ORDER WAS INVALID
ORIGINALLY FOR THE REASON CLAIMED, AS TO WHICH I EXPRESS NO OPINION,
WHATEVER DEFECT MAY HAVE EXISTED WAS CURED BY THE APPEAL BOARD'S
ACTION.  APART FROM SOME CHALLENGE UPON CONSTITUTIONAL GROUNDS, I HAVE
NO DOUBT THAT CONGRESS COULD AND DID EXCLUDE JUDICIAL REVIEW OF
SELECTIVE SERVICE ORDERS LIKE THAT IN QUESTION.  ACCORDINGLY I AGREE
THAT THE CONVICTION MUST BE SUSTAINED.    MR. JUSTICE MURPHY,
DISSENTING: 

THIS CASE PRESENTS ANOTHER ASPECT OF THE PERPLEXING PROBLEM OF
RECONCILING BASIC PRINCIPLES OF JUSTICE WITH MILITARY NEEDS IN
WARTIME.  INDIVIDUAL RIGHTS HAVE BEEN RECOGNIZED BY OUR JURISPRUDENCE
ONLY AFTER LONG AND COSTLY STRUGGLES.  THEY SHOULD NOT BE STRUCK DOWN
BY ANYTHING LESS THAN THE GRAVEST NECESSITY.  WE ASSENT TO THEIR
TEMPORARY SUSPENSION ONLY TO THE EXTENT THAT THEY CONSTITUTE A CLEAR
AND PRESENT DANGER TO THE EFFECTIVE PROSECUTION OF THE WAR AND ONLY AS
A MEANS OF PRESERVING THOSE RIGHTS UNDIMINISHED FOR OURSELVES AND
FUTURE GENERATIONS.  BEFORE GIVING SUCH AN ASSENT, THEREFORE, WE SHOULD
BE CONVINCED OF THE EXISTENCE OF A REASONABLE NECESSITY AND BE
SATISFIED THAT THE SUSPENSION IS IN ACCORDANCE WITH THE LEGISLATIVE
INTENTION. 

THE IMMEDIATE ISSUE IS WHETHER THE SELECTIVE TRAINING AND SERVICE ACT
OF 1940 MUST BE INTERPRETED SO AS TO DEPRIVE ALLEGED VIOLATORS OF THE
RIGHT TO A FULL HEARING AND OF THE RIGHT TO PRESENT EVERY REASONABLE
DEFENSE.  PETITIONER, A MEMBER OF JEHOVAH'S WITNESSES, CLAIMED TO BE A
MINISTER EXEMPT FROM BOTH MILITARY TRAINING AND CIVILIAN WORK UNDER THE
ACT.  AFTER EXHAUSTING ALL THE ADMINISTRATIVE REMEDIES AND APPEALS
AFFORDED BY THE ACT, HE WAS CLASSIFIED AS A CONSCIENTIOUS OBJECTOR
(CLASS IV-E) RATHER THAN AS A MINISTER (CLASS IV-D).  PETITIONER
ALLEGES THAT THIS CLASSIFICATION WAS CONTRARY TO LAW AND WAS THE RESULT
OF ARBITRARY ACTION BY HIS LOCAL BOARD.  ON THE ASSUMPTION THAT THESE
ALLEGATIONS ARE TRUE, THE SUBSEQUENT ORDER TO REPORT FOR ASSIGNMENT TO
WORK OF NATIONAL IMPORTANCE, WHICH HE DISOBEYED, MUST THEREFORE BE
CONSIDERED INVALID.  OUR PROBLEM IS SIMPLY WHETHER PETITIONER CAN
INTRODUCE EVIDENCE TO THAT EFFECT AS A DEFENSE TO A CRIMINAL
PROSECUTION FOR FAILURE TO OBEY THE ORDER. 

COMMON SENSE AND JUSTICE DICTATE THAT A CITIZEN ACCUSED OF A CRIME
SHOULD HAVE THE FULLEST HEARING POSSIBLE, PLUS THE OPPORTUNITY TO
PRESENT EVERY REASONABLE DEFENSE.  ONLY AN UNENLIGHTENED JURISPRUDENCE
CONDEMNS AN INDIVIDUAL WITHOUT ACCORDING HIM THOSE RIGHTS.  SUCH A
DENIAL IS ESPECIALLY OPPRESSIVE WHERE A FULL HEARING MIGHT DISCLOSE
THAT THE ADMINISTRATIVE ACTION UNDERLYING THE PROSECUTION IS THE
PRODUCT OF EXCESS WARTIME EMOTIONS.  EXPERIENCE DEMONSTRATES THAT IN
TIME OF WAR INDIVIDUAL LIBERTIES CANNOT ALWAYS BE ENTRUSTED SAFELY TO
UNCONTROLLED ADMINISTRATIVE DISCRETION.  ILLUSTRATIVE OF THIS
PROPOSITION IS THE REMARK ATTRIBUTED TO ONE OF THE MEMBERS OF
PETITIONER'S LOCAL BOARD TO THE EFFECT THAT "I DO NOT HAVE ANY DAMNED
USE FOR JEHOVAH'S WITNESSES."  THE PRESUMPTION AGAINST FORECLOSING THE
DEFENSE OF ILLEGAL AND ARBITRARY ADMINISTRATIVE ACTION IS THEREFORE
STRONG.  ONLY THE CLEAREST STATUTORY LANGUAGE OR AN UNMISTAKABLE THREAT
TO THE PUBLIC SAFETY CAN JUSTIFY A COURT IN SHUTTING THE DOOR TO SUCH A
DEFENSE.  BECAUSE I AM CONVINCED THAT NEITHER THE SELECTIVE TRAINING
AND SERVICE ACT OF 1940 NOR THE WAR EFFORT COMPELS THE RESULT REACHED
BY THE MAJORITY OF THIS COURT, I AM FORCED TO DISSENT. 

IT IS EVIDENT THAT THERE IS NO EXPLICIT PROVISION IN THE ACT
PERMITTING THE RAISING OF THIS PARTICULAR DEFENSE AND THAT THE
LEGISLATIVE HISTORY IS SILENT ON THE MATTER.  SUFFICE IT TO SAY,
HOWEVER, THAT NOTHING IN THE STATUTE OR IN ITS LEGISLATIVE RECORD
PROSCRIBES THIS DEFENSE OR WARRANTS THE CONVICTION OF PETITIONER
WITHOUT BENEFIT OF A FULL HEARING.  JUDICIAL PROTECTION OF AN
INDIVIDUAL AGAINST ARBITRARY AND ILLEGAL ADMINISTRATIVE ACTION DOES NOT
DEPEND UPON THE PRESENCE OR ABSENCE OF EXPRESS STATUTORY
AUTHORIZATION.  THE POWER TO ADMINISTER COMPLETE JUSTICE AND TO
CONSIDER ALL REASONABLE PLEAS AND DEFENSES MUST BE PRESUMED IN THE
ABSENCE OF LEGISLATION TO THE CONTRARY.  FN1 

MOREOVER, THE STRUCTURE OF THE ACT IS ENTIRELY CONSISTENT WITH
JUDICIAL REVIEW OF INDUCTION ORDERS IN CRIMINAL PROCEEDINGS.  AS THE
MAJORITY STATES, THE ACT IS DESIGNED "TO OPERATE AS ONE CONTINUOUS
PROCESS FOR THE SELECTION OF MEN FOR NATIONAL SERVICE," AND IT IS
DESIRABLE THAT THIS PROCESS BE FREE FROM "LITIGIOUS INTERRUPTION."  BUT
WE ARE FACED HERE WITH A COMPLETE AND PERMANENT INTERRUPTION SPRINGING
NOT FROM ANY AFFIRMATIVE JUDICIAL INTERVENTION BUT FROM A FAILURE TO
OBEY AN ORDER.  A CRIMINAL PROCEEDING BEFORE A COURT IS THEREFORE
INEVITABLE AND THE ONLY PROBLEM IS THE AVAILABILITY OF A PARTICULAR
DEFENSE IN THAT PROCEEDING.  HENCE JUDICIAL REVIEW AT THIS STAGE HAS
NONE OF THE ELEMENTS OF A "LITIGIOUS INTERRUPTION" OF THE
ADMINISTRATIVE PROCESS. 

NO OTHER BARRIERS TO JUDICIAL REVIEW OF THE INDUCTION ORDER IN A
CRIMINAL PROCEEDING ARE REVEALED BY THE STRUCTURE OF THE ACT.  THE
"CONTINUOUS PROCESS" OF SELECTION IS UNIQUE, UNLIKE ANY ORDINARY
ADMINISTRATIVE PROCEEDING.  NORMAL CONCEPTS OF ADMINISTRATIVE LAW ARE
FOREIGN TO THIS SETTING.  THUS RULES PREVENTING JUDICIAL REVIEW OF
INTERLOCUTORY ADMINISTRATIVE ORDERS AND REQUIRING EXHAUSTION OF THE
ADMINISTRATIVE PROCESS HAVE NO APPLICATION HERE.  THOSE RULES ARE BASED
UPON THE UNNECESSARY INCONVENIENCE WHICH THE ADMINISTRATIVE AGENCY
WOULD SUFFER IF ITS PROCEEDINGS WERE INTERRUPTED BY PREMATURE JUDICIAL
INTERVENTION.  BUT SINCE THE ADMINISTRATIVE PROCESS HAS ALREADY COME TO
A FINAL ENDING, THE REASON FOR APPLYING SUCH RULES NO LONGER EXISTS. 
AND EVEN IF THE ORDER IN THIS CASE WERE CONSIDERED INTERLOCUTORY RATHER
THAN FINAL, WHICH IS HIGHLY QUESTIONABLE, JUDICIAL REVIEW AT THIS POINT
IS NO LESS NECESSARY.  CRIMINAL PUNISHMENT FOR DISOBEDIENCE OF AN
ARBITRARY AND INVALID ORDER IS OBJECTIONABLE REGARDLESS OF WHETHER THE
ORDER BE INTERLOCUTORY OR FINAL. 

NOR DO FAMILIAR DOCTRINES OF THE EXCLUSIVENESS OF STATUTORY REMEDIES
HAVE ANY RELEVANCE HERE.  HAD CONGRESS CREATED A STATUTORY JUDICIAL
REVIEW PROCEDURE PRIOR TO OR FOLLOWING INDUCTION, THE FAILURE TO TAKE
ADVANTAGE OF SUCH A REVIEW OR THE JUDICIAL APPROVAL OF THE INDUCTION
ORDER UPON APPEAL MIGHT BAR A COLLATERAL ATTACK ON THE ORDER IN A
CRIMINAL PROCEEDING.  BUT CONGRESS HAS ERECTED NO SUCH SYSTEM OF
JUDICIAL REVIEW.  COURTS ARE LEFT TO THEIR OWN DEVICES IN FASHIONING
WHATEVER REVIEW THEY DEEM JUST AND NECESSARY. 

THUS THERE IS NO EXPRESS OR IMPLIED BARRIER TO THE RAISING OF THIS
DEFENSE OR TO THE GRANTING OF A FULL JUDICIAL REVIEW OF INDUCTION
ORDERS IN CRIMINAL PROCEEDINGS.  COURTS HAVE NOT HESITATED TO MAKE SUCH
REVIEW AVAILABLE IN HABEAS CORPUS PROCEEDINGS FOLLOWING INDUCTION
DESPITE THE ABSENCE OF EXPRESS STATUTORY AUTHORIZATION.  WHERE, AS
HERE, INDUCTION WILL NEVER OCCUR AND THE HABEAS CORPUS PROCEDURE IS
UNAVAILABLE, JUDICIAL REVIEW IN A CRIMINAL PROCEEDING BECOMES
IMPERATIVE IF PETITIONER IS TO BE GIVEN ANY PROTECTION AGAINST
ARBITRARY AND INVALID ADMINISTRATIVE ACTION.  FN2 IT IS SIGNIFICANT
THAT IN ANALOGOUS SITUATIONS IN THE PAST, ALTHOUGH WITHOUT PASSING UPON
THE PRECISE ISSUE, WE HAVE SUPPLIED SUCH A NECESSARY REVIEW IN CRIMINAL
PROCEEDINGS.  CF. UNION BRIDGE CO. V. UNITED STATES, 204 U.S. 364;
MONONGAHELA BRIDGE CO. V. UNITED STATES, 216 U.S. 177; MCALLISTER,
"STATUTORY ROADS TO REVIEW OF FEDERAL ADMINISTRATIVE ORDERS," 28
CALIFORNIA L. REV. 129, 165, 166.  SEE ALSO FIRE DEPARTMENT V. GILMOUR,
149 N.Y. 453, 44 N.E. 177; PEOPLE V. MCCOY, 125 ILL. 289, 17 N.E. 786. 

FINALLY, THE EFFECTIVE PROSECUTION OF THE WAR IN NO WAY DEMANDS THAT
PETITIONER BE DENIED A FULL HEARING IN THIS CASE.  WE ARE CONCERNED
WITH A SPEEDY AND EFFECTIVE MOBILIZATION OF ARMED FORCES.  BUT THAT
MOBILIZATION IS NEITHER IMPEDED NOR AUGMENTED BY THE AVAILABILITY OF
JUDICIAL REVIEW OF LOCAL BOARD ORDERS IN CRIMINAL PROCEEDINGS.  IN THE
RARE CASE WHERE THE ACCUSED PERSON CAN PROVE THE ARBITRARY AND ILLEGAL
NATURE OF THE ADMINISTRATIVE ACTION, THE INDUCTION ORDER SHOULD NEVER
HAVE BEEN ISSUED AND THE ARMED FORCES ARE DEPRIVED OF NO ONE WHO SHOULD
HAVE BEEN INDUCTED.  AND WHERE THE DEFENDANT IS UNABLE TO PROVE SUCH A
DEFENSE OR WHERE, PURSUANT TO THIS COURT'S OPINION, HE IS FORBIDDEN
EVEN TO ASSERT THIS DEFENSE, THE PRISON RATHER THAN THE ARMY OR NAVY IS
THE RECIPIENT OF HIS PRESENCE.  THUS THE MILITARY STRENGTH OF THIS
NATION GAINS NAUGHT BY THE DENIAL OF JUDICIAL REVIEW IN THIS INSTANCE. 

TO SAY THAT THE AVAILABILITY OF SUCH A REVIEW WOULD ENCOURAGE
DISOBEDIENCE OF INDUCTION ORDERS, OR THAT DENIAL OF A REVIEW WOULD HAVE
A DETERRENT EFFECT, IS NEITHER DEMONSTRABLE NOR REALISTIC.  THERE IS NO
EVIDENCE THAT PETITIONER FAILED TO OBEY THE LOCAL BOARD ORDER BECAUSE
OF A BELIEF THAT HE COULD SECURE A JUDICIAL REVERSAL OF THE ORDER AND
THUS ESCAPE THE DUTY TO DEFEND HIS COUNTRY.  THOSE WHO SEEK SUCH A
REVIEW ARE INVARIABLY THOSE WHOSE CONSCIENTIOUS OR RELIGIOUS SCRUPLES
WOULD PREVENT THEM FROM REPORTING FOR INDUCTION REGARDLESS OF THE
AVAILABILITY OF THIS DEFENSE.  AND I AM NOT AWARE THAT DISOBEDIENCE HAS
MULTIPLIED IN THE FOURTH CIRCUIT, WHERE THIS DEFENSE HAS BEEN ALLOWED. 
BAXLEY V. UNITED STATES, 134 F.2D 998; GOFF V. UNITED STATES, 135 F.2D
610.  MOREOVER, ENGLISH COURTS UNDER IDENTICAL CIRCUMSTANCES DURING THE
LAST WAR UNHESITATINGLY PROVIDED A FULL HEARING AND REVIEWED ORDERS TO
REPORT FOR PERMANENT SERVICE.  OFFORD V. HISCOCK, 86 L.J.K.B. 941;
HAWKES V. MOXEY, 86 L.J.K.B. 1530.  YET THAT DID NOT NOTICEABLY IMPEDE
THE EFFICIENCY OR SPEED OF ENGLAND'S MUSTERING OF AN ADEQUATE MILITARY
FORCE. 

THAT AN INDIVIDUAL SHOULD LANGUISH IN PRISON FOR FIVE YEARS WITHOUT
BEING ACCORDED THE OPPORTUNITY OF PROVING THAT THE PROSECUTION WAS
BASED UPON ARBITRARY AND ILLEGAL ADMINISTRATIVE ACTION IS NOT IN
KEEPING WITH THE HIGH STANDARDS OF OUR JUDICIAL SYSTEM.  ESPECIALLY IS
THIS SO WHERE NEITHER PUBLIC NECESSITY NOR RULE OF LAW OR STATUTE LEADS
INEXORABLY TO SUCH A HARSH RESULT.  THE LAW KNOWS NO FINER HOUR THAN
WHEN IT CUTS THROUGH FORMAL CONCEPTS AND TRANSITORY EMOTIONS TO PROTECT
UNPOPULAR CITIZENS AGAINST DISCRIMINATION AND PERSECUTION.  I CAN
PERCEIVE NO OTHER COURSE FOR THE LAW TO TAKE IN THIS CASE. 

FN1  OTHERWISE THE ABSENCE OF CLEAR STATUTORY PERMISSION WOULD
PRECLUDE COURT REVIEW OF INDUCTION ORDERS IN HABEAS CORPUS PROCEEDINGS
FOLLOWING ACTUAL INDUCTION, A RESULT WHICH THIS COURT'S OPINION
PRESUMABLY DOES NOT INTEND TO INFER.  JUDICIAL REVIEW IN SUCH
PROCEEDINGS HAS BECOME WELL SETTLED IN LOWER FEDERAL COURTS. 

FN2  JUDGE ROBERT C. BELL OF THE FEDERAL DISTRICT COURT IN MINNESOTA,
IN HIS ARTICLE "SELECTIVE SERVICE AND THE COURTS," 28 A.B.A. JOURNAL
164, 167, STATES, "THE COURTS ARE LIKELY TO BE CONFRONTED WITH THE
QUESTION OF WHAT CAN BE PRESENTED AS A DEFENSE BY A SELECTEE IN A
CRIMINAL PROSECUTION AGAINST HIM FOR A VIOLATION OF THE PROVISIONS OF
THE ACT OF 1940.  IT APPEARS THAT THIS QUESTION HAS NOT BEEN DECIDED. 
ON PRINCIPLE, IT WOULD SEEM THAT THE DEFENDANT SHOULD BE PERMITTED TO
OFFER AS A DEFENSE THE SAME QUESTIONS THAT HE COULD PRESENT IN A HABEAS
CORPUS PROCEEDING, THAT IS, THE QUESTION OF WHETHER THE BOARD HAD
JURISDICTION, WHETHER THERE WAS A FAIR HEARING, OR WHETHER THE ACTION
OF THE BOARD WAS ARBITRARY OR UNLAWFUL." 
..END :









UNITED STATES V. MYERS, 320 U.S. 561 


ARGUED DECEMBER 16, 17, 1943.  - DECIDED JANUARY 3, 1944.  - 99 CT.CLS. 
158, REVERSED IN PART, AFFIRMED IN PART. 


1.  SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, CREATES AN
OBLIGATION ON THE PART OF THE UNITED STATES TO PAY CUSTOMS OFFICERS THE
EXTRA COMPENSATION THEREIN PRESCRIBED.  P. 567. 

2.  THE EXTRA COMPENSATION WHICH SEC. 5 OF THE ACT OF FEBRUARY 13,
1911, AS AMENDED, REQUIRES THAT CUSTOMS INSPECTORS BE PAID FOR
OVERTIME, SUNDAYS AND HOLIDAYS, HELD PAYABLE, IN RESPECT OF WEEKDAY
SERVICE, ONLY FOR SERVICE BEYOND THE REGULAR DAILY TOUR OF DUTY,
WHETHER DAY OR NIGHT; AND FOR ALL SERVICE ON SUNDAYS AND HOLIDAYS.  PP.
573-574. 

3.  AS THE PROVISO OF SEC. 5 AUTHORIZES ADJUSTMENTS OF HOURS BUT IS
SILENT AS TO SUNDAYS AND HOLIDAYS, THE SECTION'S EARLIER GRANT OF EXTRA
COMPENSATION FOR SUNDAYS AND HOLIDAYS REMAINS UNAFFECTED BY THE
PROVISO.  P. 575. 

4.  THE REQUIREMENTS OF SEC. 5 OF THE ACT OF FEBRUARY 13, 1911, AS
AMENDED, IN RESPECT OF EXTRA COMPENSATION, APPLY TO SERVICES OF CUSTOMS
INSPECTORS AT BRIDGES AND TUNNELS.  P. 575. 

5.  THE EXTRA COMPENSATION REQUIRED BY SEC. 5 OF THE ACT OF FEBRUARY
13, 1911, AS AMENDED, TO BE PAID FOR OVERTIME, SUNDAYS AND HOLIDAYS IS
EXCLUSIVE OF THE BASE PAY.  P. 576. 

UNITED STATES V. MYERS. 

NO. 142.  CERTIORARI TO THE COURT OF CLAIMS.* 

*TOGETHER WITH NO. 143, UNITED STATES V. ARBLE, NO. 144, UNITED
STATES V. MARTIN, NO. 145, UNITED STATES V. PLITZ, AND NO. 146, UNITED
STATES V. SPITZ, ALSO ON WRITS OF CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 722, TO REVIEW JUDGMENTS OF THE COURT OF CLAIMS
IN FIVE SUITS TO RECOVER EXTRA COMPENSATION FOR SERVICES RENDERED BY
THE PLAINTIFFS AS CUSTOMS INSPECTORS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE FIVE SUITS WERE FILED IN THE COURT OF CLAIMS BY RESPONDENTS,
WHO ARE CUSTOMS INSPECTORS STATIONED AT THE PORT OF DETROIT.  FN1  THEY
HAVE BEEN SELECTED AS TEST CASES FROM A LARGER NUMBER OF SIMILAR
SUITS.  NO SIGNIFICANT DIFFERENCE IN THE CLAIMS AS TO SERVICES RENDERED
OR OTHERWISE IS POINTED OUT TO US, AND WE SEE NONE.  EVEN THE PERIODS
FOR WHICH RECOVERY IS SOUGHT, SEPTEMBER 1, 1931, THROUGH AUGUST 31,
1937, ARE IDENTICAL.  WE SHALL THEREFORE STATE THE ISSUES AND EXPLAIN
OUR CONCLUSION IN TERMS OF THE MYERS CASE ONLY, AND ITS DETERMINATION
REQUIRES A LIKE RESULT IN THE OTHER CASES. 

THE PRECISE ISSUE IS WHETHER OR NOT THE PROVISIONS OF SEC. 5 OF THE
ACT OF FEBRUARY 13, 1911, AS AMENDED,  FN2  AND SECS. 401, 450 AND 451
OF THE TARIFF ACT OF 1930,  FN3  ENTITLE MR. MYERS TO EXTRA
COMPENSATION OVER AND ABOVE HIS REGULAR SALARY AS CUSTOMS INSPECTOR FOR
NIGHT, SUNDAY AND HOLIDAY SERVICES PERFORMED DURING THE STATED PERIOD. 
ITS SOLUTION DEPENDS UPON WHETHER OR NOT, WHEN SEC. 5 SPEAKS OF
"OVERTIME SERVICES," IT INCLUDES, FIRST, ANY AUTHORIZED SERVICE
RENDERED BETWEEN 5 O'CLOCK P.M. AND 8 O'CLOCK A.M., WITHOUT REGARD TO
WHETHER THIS SERVICE IS WITHIN THE REGULAR HOURS OF HIS ASSIGNMENT TO
DUTY, AND, SECOND, SUNDAYS AND HOLIDAYS WITHOUT REGARD TO THE TIME OF
DAY WHEN THE AUTHORIZED SERVICES ARE PERFORMED.  THE COURT OF CLAIMS
ENTERED JUDGMENT FOR CLAIMANT FOR BOTH NIGHTTIME AND SUNDAY AND HOLIDAY
SERVICES.  99 CT. CLS. 158. 

AS THE DIFFICULTIES OF APPLYING THE STATUTE CONTINUALLY ARISE AT ANY
PORT WHERE THE NORMAL WORKING HOURS OF THE CUSTOMS EMPLOYEES NAMED IN
THE SECTION ARE NOT LIMITED TO 8 A.M. TO 5 P.M. WITH SUNDAYS AND
HOLIDAYS OFF, WE GRANTED CERTIORARI TO REVIEW THE JUDGMENT OF THE COURT
OF CLAIMS.  WE THINK THE JUDGMENT SHOULD BE REVERSED AS TO NIGHTTIME
SERVICES AND AFFIRMED AS TO SUNDAY AND HOLIDAY SERVICES. 

THE PORT OF DETROIT POSSESSES A WIDE VARIETY OF TRANSPORTATION
FACILITIES WHICH CONNECT IT WITH CANADA AND WHICH REQUIRE CUSTOMS
INSPECTION OF MERCHANDISE, BAGGAGE AND PASSENGERS.  FN4 EVIDENTLY A
ROTATION OF ASSIGNMENTS OF POSTS AND HOURS AMONG INSPECTORS AT DETROIT
WAS CARRIED OUT BY THE COLLECTOR.  MR. MYERS HAD EITHER NIGHT OR SUNDAY
AND HOLIDAY SERVICE OR BOTH AT ALL THE VARIOUS POSTS OF DUTY WHICH ARE
LISTED IN THE NOTE.  HE WAS PAID HIS ANNUAL SALARY THROUGHOUT THE
PERIOD.  THIS WAS A BASE PAY OF $2,100, SUBJECT TO ADDITIONS AND
SUBTRACTIONS WHICH WERE GENERALLY APPLICABLE TO GOVERNMENT EMPLOYEES
N5.  THE CLAIM IS FOR SERVICE PERFORMED AT NIGHTTIME N6 ON WEEKDAYS,
SUNDAYS AND HOLIDAYS, AND IN DAYTIME ON SUNDAYS AND HOLIDAYS. 

AT THE THRESHOLD THE GOVERNMENT URGES THAT THE STATUTES HERETOFORE
QUOTED DO NOT CREATE AN OBLIGATION ON THE PART OF THE UNITED STATES TO
PAY THE EXTRA COMPENSATION WHICH IS SOUGHT.  A CARRIER MAY PROCURE
CUSTOMS SERVICE AT NIGHT ONLY BY SPECIAL LICENSE, AND THE STATUTES SAY
THE EXTRA COMPENSATION SHALL BE PAID "BY THE LICENSEE" TO THE COLLECTOR
OF CUSTOMS WHO SHALL PAY THE SAME "TO THE INSPECTORS."  N7  AS THE
EXTRA COMPENSATION HERE SUED FOR WAS NOT COLLECTED IN WHOLE OR PART
FROM THE CARRIERS CONCERNED, IT IS URGED THAT THE UNITED STATES IS NOT
LIABLE TO THE PLAINTIFF.  FN8 

THE LEGISLATIVE HISTORY SHOWS THAT THE PROPONENTS OF EXTRA
COMPENSATION CONSTANTLY MADE THE POINT THAT THE GOVERNMENT WOULD NOT BE
OUT OF POCKET BY THE LEGISLATION N9.  WHERE THE UNITED STATES STOOD AS
A PROTECTOR OF INDIANS WITH STATUTORY AUTHORITY, CAREFULLY MARKED OUT
BY A SERIES OF ENACTMENTS, TO COLLECT SUMS FOR THE BENEFIT OF ITS
DEPENDENTS, WE HELD THAT THE GOVERNMENT'S FAILURE TO COLLECT DID NOT
GIVE RISE TO A LIABILITY.  CREEK NATION V. UNITED STATES, 318 U.S. 629,
637, 639.  IN THAT CASE WE SAID THAT AUTHORIZATION TO COLLECT DID NOT
CREATE A MANDATORY DUTY, PARTICULARLY WHERE THE INDIANS ALSO MIGHT HAVE
SUED.  LIKEWISE, UNDER SIMILAR CIRCUMSTANCES, WE HAVE DETERMINED THAT
OVER-COLLECTION DID NOT CREATE LIABILITY FOR REIMBURSEMENT.  UNITED
STATES V. ALGOMA LUMBER CO., 305 U.S. 415, 418-19, 423.  BUT HERE THE
UNITED STATES IS NEITHER PROTECTOR NOR AGENT.  IT IS AN EMPLOYER WHO
ISSUES ORDERS TO THE INSPECTORS DIRECTING THE PERFORMANCE OF SERVICES. 
THE WORK IS DONE UNDER THE STATUTES.  NO INSPECTOR MAY "RECEIVE ANY
SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE
FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES."  ACT
OF MARCH 3, 1917, C. 163, 39 STAT. 1106.  THESE PAYMENTS ARE MADE BY
THE LICENSEES TO THE COLLECTOR AT RATES FIXED BY THE SECRETARY OF THE
TREASURY.  THIS IS EXTRA COMPENSATION OVER AND ABOVE THE ANNUAL SALARY,
NOT A PAYMENT FROM LICENSEES.  SECTION 451 REQUIRES A BOND FROM THE
LICENSEE TO "PAY THE COMPENSATION AND EXPENSES OF THE CUSTOMS
OFFICERS," BUT THE PAYMENT MUST BE MADE TO THE COLLECTOR UNDER SEC. 5. 
THESE FACTS LEAD US TO THE VIEW THAT THE STATUTES CREATE AN OBLIGATION
ON THE PART OF THE UNITED STATES TO PAY TO INSPECTORS SUCH SUMS AS THEY
MAY EARN UNDER THEIR PROVISIONS.  FN10 

WE COME THEN TO AN EXAMINATION OF THE EXTENT OF THE OBLIGATION UNDER
THE SEVERAL SECTIONS HERETOFORE QUOTED IN NOTES 2 AND 3.  FROM THE
EARLIEST DAYS, CUSTOMS INSPECTIONS HAVE NORMALLY PROCEEDED IN
DAYLIGHT.  BY SPECIAL LICENSE, THE WORK OF THE CUSTOMS MIGHT BE
PERFORMED AT NIGHT.  FN11  INSPECTORS WERE ON DUTY CONTINUOUSLY AND AT
FIRST WERE PAID ON A PER DIEM BASIS.  FN12  BY THE ACT OF MARCH 3,
1873, R.S. SEC. 2871, THE PRACTICE OF LICENSEES OF PAYING EXTRA
COMPENSATION FOR NIGHTTIME SERVICE  FN13  (BETWEEN SUNSET AND SUNRISE)
WAS FORMALIZED BY AUTHORIZING THE COLLECTOR TO FIX REASONABLE EXTRA
COMPENSATION AND TO COLLECT AND DISTRIBUTE IT AMONG THE INSPECTORS. 
THE PROVISIONS OF THAT SECTION GRADUALLY WERE EXTENDED TO ADDITIONAL
EMPLOYEES AND TO DIFFERENT CIRCUMSTANCES.  23 STAT. 53, 59; 34 STAT.
633.  IN 1911 FURTHER CHANGES WERE MADE BY AN ACT FOR LADING AND
UNLADING VESSELS.  36 STAT. 901.  SECTION 5 UNDER EXAMINATION HERE
EMERGES THERE IN NEARLY ITS PRESENT FORM.  EXTRA COMPENSATION FOR
NIGHTTIME SERVICES WAS CONTINUED AND WAS AUTHORIZED FOR THE FIRST TIME
FOR SUNDAYS AND HOLIDAYS.  FN14  THE LATEST CHANGES WERE MADE IN SEC. 5
IN 1920.  "NIGHT" SERVICES BECAME "OVERTIME" SERVICES.  SUNDAYS AND
HOLIDAYS WERE PLACED AT THE BEGINNING OF THE SECTION IN JUXTAPOSITION
WITH "HOURS" WHICH WERE FIXED AT FROM 8 A.M. TO 5 P.M.  THE LAST
PROVISO VESTING AUTHORITY IN THE COLLECTOR OF CUSTOMS TO REGULATE THE
HOURS OF EMPLOYEES "SO AS TO AGREE WITH PREVAILING WORKING HOURS IN THE
PORTS" WAS ADDED.  FN15  THE TARIFF ACT OF 1922, SECS. 401, 450 AND
451, EXTENDED THE PROVISIONS OF SEC. 5 OF THE LADING AND UNLADING ACT
SO AS TO COVER PASSENGERS AND BAGGAGE ARRIVING BY VEHICLE.  THESE
SUPRA. 

THE COLLECTOR OF CUSTOMS AT DETROIT, DURING THE YEARS IN QUESTION,
ASSIGNED INSPECTORS TO TOURS OF DUTY OF EIGHT HOURS EACH DAY, WHICH
TOURS MIGHT BE AT ANY TIME WITHIN A TWENTY-FOUR HOUR PERIOD.  FN16  THE
LENGTH OF THE WEEKLY TOUR VARIED WITH THE POST AND WITH THE STATE OF
THE FEDERAL LEGISLATION.  THE FINDINGS OF THE COURT OF CLAIMS AS TO THE
ACTUAL RESULTS ARE SET OUT IN THE NOTE BELOW.  FN17  IN THE
ADMINISTRATION OF CUSTOMS, REGULATIONS BASED ON THE SECTIONS OF THE
TARIFF ACT OF 1930 AND SEC. 5 OF THE ACT OF 1911 WERE ISSUED BY THE
TREASURY DEPARTMENT.  CUSTOMS REGULATIONS 1931 AND 1937.  SO FAR AS
HERE PERTINENT THEY ARE SUBSTANTIALLY ALIKE.  FN18 

THE LEGISLATIVE HISTORY OF THE VARIOUS ACTS MAKES CLEAR THE INTENTION
OF CONGRESS TO ALLOW EXTRA COMPENSATION ONLY WHEN THERE ARE OVERTIME
SERVICES IN THE SENSE OF WORK HOURS IN ADDITION TO THE REGULAR DAILY
TOUR OF DUTY WITHOUT REGARD TO THE PERIOD WITHIN THE TWENTY-FOUR HOURS
WHEN THE REGULAR DAILY TOUR IS PERFORMED.  CONGRESSMAN MOORE EXPLAINED
THE PURPOSE AS FOLLOWS (HEARINGS ON H.R. 9525, 61ST CONG., 2D SESS., AT
P. 470):  FN19 

"MR. FORDNEY.  THE COMPENSATION FOR NIGHT WORK WOULD BE MORE THAN
TWICE THE COMPENSATION FOR DAY WORK? 

"MR. MOORE.  I THINK NOT, BUT SO LONG AS A MAN WORKS IN THE DAYTIME
AND THEN CONTINUES HIS WORK THROUGH THE NIGHT, IF THE EXPENSE DOES NOT
COME OUT OF THE GOVERNMENT HE SHOULD BE PAID DOUBLE." 

AT THE HEARINGS, JUST PRIOR TO THE 1920 AMENDMENT TO SEC 5, THE
UNDERSTANDING APPARENTLY WAS THAT EXTRA COMPENSATION WOULD BEGIN ONLY
AFTER A DAY'S WORK OF TEN OR ELEVEN HOURS.  THE PAY OF AN INSPECTOR WAS
PER DIEM AND WAS PAID FOR EACH DAY IN THE YEAR.  THE TREASURY
DEPARTMENT WROTE TO THE CHAIRMAN: 

"THE DEPARTMENT HAS UNDER CONSIDERATION A PLAN WHEREBY BOARDING
OFFICERS AND INSPECTORS OF CUSTOMS WILL BE ASSIGNED TO DUTY IN EIGHT
HOUR SHIFTS AND WILL NOT, THEREFORE, BE CALLED UPON TO WORK OVERTIME
AND NO EXTRA COMPENSATION PAID TO OFFICERS ASSIGNED TO THE NIGHT
SHIFT.  IN ORDER TO CARRY OUT SUCH PLAN IT WILL BE NECESSARY TO SECURE
ADDITIONAL APPROPRIATIONS, AND PENDING THE ADOPTION OF THE PLAN IT
WILL, OF COURSE, BE NECESSARY TO DETAIL INSPECTORS AND OTHER EMPLOYEES
FOR NIGHT WORK."  FN20 

THERE ARE OTHER REFERENCES IN THE HEARINGS TO THE USE OF THE "SHIFT"
SYSTEM TO SECURE TWENTY-FOUR HOUR SERVICE WITHOUT EXTRA COMPENSATION. 
THE LEGAL BASIS FOR A COLLECTOR'S AUTHORITY TO ASSIGN INSPECTORS IN
THIS WAY IS THE LAST PROVISO OF SEC. 5, NOTE 2, SUPRA.  IT GIVES THE
COLLECTOR AUTHORITY IN THOSE PORTS WHERE CUSTOMARY WORKING HOURS ARE
OTHER THAN 8 A.M. TO 5 P.M. TO REGULATE THE HOURS OF INSPECTORS SO AS
TO AGREE WITH PREVAILING WORKING HOURS IN THE PORTS.  IN SPEAKING OF
THE PROVISION AFTER ITS ADOPTION, AN OFFICIAL OF THE CUSTOMS INSPECTORS
ASSOCIATION SAID AT A HEARING ON AN IMMIGRATION INSPECTORS BILL
(HEARINGS ON S. 1504, S. 1774 AND S. 2188, 67TH CONG., 1ST AND 2D
SESS., P. 130): 

"TO MEET THE CONDITION AT NEW ORLEANS, WHERE THE HOURS OF LABOR ARE
FROM 7 O'CLOCK A.M. TO 4 O'CLOCK P.M., THIS PROVISO AT THE END OF THE
BILL WAS PUT IN ALLOWING COLLECTORS TO ADJUST THE INSPECTORS' HOURS TO
THE CUSTOMARY WORKING HOURS AT PORTS WHERE THE PRACTICES ARE
DIFFERENT.  THIS PROVISO ALSO APPLIES TO THE CANADIAN BORDER AT PLACES
WHERE TRAFFIC IS CONTINUOUS DURING THE 24 HOURS, SUCH BEING THE
'CUSTOMARY WORKING HOURS' - AND THE INSPECTORS WORK IN 8-HOUR SHIFTS
WITHOUT OVERTIME."  FN21 

WHEN WE EXAMINE THE LANGUAGE OF SEC. 5, EITHER WITHOUT EXTRINSIC AID
OR WITH THE BENEFIT OF THE HISTORICAL AND LEGISLATIVE BACKGROUND, WE
FIND CONVINCING AUTHORITY TO SUPPORT THE GOVERNMENT'S VIEW AS TO THE
MEANING OF OVERTIME.  "OVERTIME" AS WE POINTED OUT ABOVE WAS
SUBSTITUTED BY THE 1920 AMENDMENT OF SEC. 5 FOR "NIGHTTIME" SERVICES. 
THE SECTION REQUIRES EMPLOYEES TO "REMAIN" ON DUTY.  THE USUAL INSTANCE
OF THE PAYMENT OF EXTRA COMPENSATION WOULD BE FOR WORK AFTER 5 P.M. BY
AN INSPECTOR WHO HAD PREVIOUSLY WORKED FULL TIME.  THE GOVERNMENT IS
CORRECT IN ITS INTERPRETATION OF THE LAST PROVISO OF SEC. 5 AS
PERMITTING SHIFTS IN AN INSPECTOR'S REGULAR HOURS OF WORK.  NIGHT
ASSIGNMENTS ARE AN OLD ADMINISTRATIVE PRACTICE.  IT IS TRUE THAT THE
PROVISO APPARENTLY WAS PASSED TO MEET A NEW ORLEANS SITUATION BUT THE
LANGUAGE IS GENERAL.  IT DOES NOT RESTRICT THE COLLECTOR TO MINOR
VARIATIONS IN HOURS.  WE ARE LED TO THE CONCLUSION THAT OVERTIME, AS
APPLIED TO WEEK DAYS, REFERS TO HOURS LONGER THAN THE DAILY LIMIT OF 8
A.M. TO 5 P.M., NINE HOURS WITH ONE HOUR FOR FOOD AND REST. 
FURTHERMORE, THESE TOURS OF DUTY UNDER THE PROVISO ARE MOVABLE WITHIN
THE TWENTY-FOUR HOUR PERIOD IN ACCORDANCE WITH PREVAILING WORKING HOURS
AND THE REQUIREMENTS OF THE SERVICE. 

WE DO NOT SEE THAT INTERNATIONAL RY. CO. V. DAVIDSON, 257 U.S. 506,
DECIDES OTHERWISE.  THAT WAS A SUIT TO ENJOIN THE COLLECTOR FROM
ENFORCING THE LICENSE PROVISIONS OF SEC. 5, NOTE 2, SUPRA, AS TO
PASSENGERS AND BAGGAGE, AGAINST AN INTERNATIONAL BRIDGE.  THESE WERE
HELD INAPPLICABLE TO BRIDGES.  IN SPEAKING OF SEC. 5, THE OPINION
STATED:  "THIS SUBSTITUTED SECTION DEFINES WHAT SHALL BE DEEMED
OVERTIME, HOW THE RATE OF EXTRA PAY SHALL BE FIXED, AND WHAT THE WORK
IS, FOR WHICH EXTRA COMPENSATION SHALL BE PAID."  IT DID NOT, HOWEVER,
INTERPRET THE STATUTE OR CONSIDER THE PROVISO BOTH OF WHICH WE ARE
CALLED UPON TO DO HERE.  CONTRA, SEE FERGUSON V. PORT HURON & SARNIA
FERRY CO., 13 F.2D 489, 492. 

AS TO SUNDAYS AND HOLIDAYS, WE CONSTRUE THE STATUTE TO REQUIRE EXTRA
COMPENSATION FOR INSPECTORS WITHOUT REGARD TO THE HOURS OF THE DAY OR
WHETHER SUCH SERVICES ARE ADDITIONAL TO A REGULAR WEEKLY TOUR OF DUTY. 
BEFORE SEC. 5 THERE WAS NO AUTHORITY TO PAY EXTRA COMPENSATION FOR
SUNDAY AND HOLIDAY WORK.  REVISED STATUTES, SEC. 2871, ALLOWED EXTRA
PAY FOR NIGHTTIME WORK ONLY.  SOMEWHAT INDIRECTLY THE ACT OF FEBRUARY
13, 1911, GAVE SUNDAY AND HOLIDAY PAY AND THE 1920 AMENDMENT MADE THE
RIGHT TO THAT EXTRA COMPENSATION CLEAR BY SAYING EXTRA COMPENSATION
SHALL BE PAID INSPECTORS "WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN
THE HOURS OF FIVE O'CLOCK POSTMERIDAN AND EIGHT O'CLOCK ANTEMERIDIAN,
OR ON SUNDAYS OR HOLIDAYS."  THIS LANGUAGE AND THE CUSTOMS REGULATIONS,
NOTE 18, SUPRA, GIVE AN EMPLOYEE WHO WORKS REGULAR HOURS WEEKDAYS IN
DAYTIME EXTRA PAY FOR SUNDAY AND HOLIDAY WORK.  THE STATUTE COVERS ALSO
THOSE WHO WORK OUTSIDE THE STATUTORY NORMAL HOURS.  LOGICALLY, IF
SUNDAYS AND HOLIDAYS WERE NOT TO RECEIVE EXTRA COMPENSATION, WITHOUT
REGARD TO WHETHER SERVICES ON THOSE DAYS WERE OVERTIME, THERE WOULD
HAVE BEEN NO OCCASION TO ADD SUNDAYS AND HOLIDAYS TO THE OVERTIME. 
OVERTIME WOULD COVER EVERY SITUATION.    THE PROVISO OF SEC. 5 DOES NOT
GIVE THE COLLECTOR OF CUSTOMS AUTHORITY TO MAKE ASSIGNMENTS WHICH
DEPRIVE INSPECTORS OF THIS SUNDAY AND HOLIDAY PAY.  IT AUTHORIZES
ADJUSTMENTS OF HOURS BUT SPECIFICALLY FORBIDS ALTERATION OF OVERTIME
PAY.  IT IS SILENT AS TO SUNDAYS AND HOLIDAYS WHICH LEAVES THE EARLIER
GRANT OF EXTRA COMPENSATION FOR THOSE DAYS IN EFFECT.  OVERTIME PAY IS
ALSO APPLICABLE TO SUNDAYS AND HOLIDAYS WHEN INSPECTORS WORK LONGER
THAN NINE HOURS WITH ONE HOUR FOR FOOD AND REST.  THE RATE OF OVERTIME
EXTRA COMPENSATION ON SUNDAYS AND HOLIDAYS IS THE SAME AS THE RATE FOR
WEEK DAYS.  THE ADMINISTRATIVE PRACTICE IS UNCERTAIN.  IT DOES NOT
SUPPORT A CONTRARY CONCLUSION.  THE GOVERNMENT CITES EXCERPTS FROM
TESTIMONY ON AMENDATORY BILLS, NOT HERE DIRECTLY INVOLVED, WHICH
INDICATE THE EXTRA COMPENSATION IS PAID FOR SUNDAYS AND HOLIDAYS.  FN22
FINDINGS 5 AND 6 OF THE COURT OF CLAIMS, NOTE 17, SUPRA, SHOW THAT
EXTRA COMPENSATION WAS PAID AT TIMES FOR SUNDAY AND HOLIDAY SERVICES. 
FN23 

TWO FURTHER CONTENTIONS OF THE GOVERNMENT REQUIRE CONSIDERATION.  IT
IS SAID THAT SEC. 5 OF THE 1911 ACT AS AMENDED DOES NOT APPLY TO
SERVICES RENDERED AT A BRIDGE OR TUNNEL.  THIS COURT SO HELD IN 1922. 
INTERNATIONAL RY. CO. V. DAVIDSON, 257 U.S. 506, 512.  AT THAT TIME,
THE SECTION'S APPLICATION WAS LIMITED TO "VESSEL OR OTHER CONVEYANCE." 
SINCE THEN SECS. 401, 450 AND 451 OF THE TARIFF ACT OF 1922, 42 STAT.
858, 948, 954, AND OF THE TARIFF ACT OF 1930, NOTE 3, SUPRA, HAVE
EXPANDED THE INSTRUMENTALITIES TO INCLUDE EVERY CONTRIVANCE CAPABLE OF
BEING USED AS A MEANS OF TRANSPORTATION ON LAND OR WATER.  FN24  THE
DIFFERENCE IN DEFINITION, WE THINK, BRINGS BRIDGES AND TUNNELS UNDER
THE OVERTIME PAY REQUIREMENTS OF SEC. 5. 

FINALLY THE GOVERNMENT URGES THAT IN AWARDING COMPENSATION FOR
"OVERTIME" SERVICES CREDIT SHOULD BE ALLOWED TO IT FOR THAT PART OF THE
BASE PAY RECEIVED FOR SUCH SERVICES.  WE THINK THE CONGRESSIONAL
INTENTION TO GIVE EXTRA COMPENSATION PRECLUDES SUCH A CLAIM.  THE
INSPECTORS IN ADDITION TO THEIR REGULAR SALARIES FOR WEEK DAYS ARE
ENTITLED TO THE STATUTORY ADDITIONAL PAY FOR OVERTIME, SUNDAYS AND
HOLIDAYS. 

THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED AND THE PROCEEDING
REMANDED TO THAT COURT FOR DETERMINATION OF THE CLAIM OF THE INSPECTORS
IN ACCORDANCE WITH THIS OPINION.  REVERSED. 

FN1  FEDERAL REGISTER, AUGUST 25, 1937; CODE OF FEDERAL REGULATIONS,
TITLE 19, CUSTOMS DUTIES, CHAP. 1, BUREAU OF CUSTOMS. 

FN2  41 STAT. 402, C. 61; 19 U.S.C. 267: 

"SEC. 5.  THAT THE SECRETARY OF THE TREASURY SHALL FIX A REASONABLE
RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS,
STOREKEEPERS, WEIGHERS, AND OTHER CUSTOMS OFFICERS AND EMPLOYEES WHO
MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O'CLOCK
POSTMERIDIAN AND EIGHT O'CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS,
TO PERFORM SERVICES IN CONNECTION WITH THE LADING OR UNLADING OF CARGO,
OR THE LADING OF CARGO OR MERCHANDISE FOR TRANSPORTATION IN BOND OR FOR
EXPORTATION IN BOND OR FOR EXPORTATION WITH BENEFIT OF DRAWBACK, OR IN
CONNECTION WITH THE RECEIVING OR DELIVERY OF CARGO ON OR FROM THE
WHARF, OR IN CONNECTION WITH THE UNLADING, RECEIVING, OR EXAMINATION OF
PASSENGERS' BAGGAGE, SUCH RATES TO BE FIXED ON THE BASIS OF ONE-HALF
DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST
ONE HOUR THAT THE OVERTIME EXTENDS BEYOND FIVE O'CLOCK POSTMERIDIAN
(BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM
FIVE O'CLOCK POSTMERIDIAN TO EIGHT O'CLOCK ANTEMERIDIAN), AND TWO
ADDITIONAL DAYS' PAY FOR SUNDAY OR HOLIDAY DUTY.  THE SAID EXTRA
COMPENSATION SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF
SUCH VESSEL OR OTHER CONVEYANCE WHENEVER SUCH SPECIAL LICENSE OR PERMIT
FOR IMMEDIATE LADING OR UNLADING OR FOR LADING OR UNLADING AT NIGHT OR
ON SUNDAYS OR HOLIDAYS SHALL BE GRANTED TO THE COLLECTOR OF CUSTOMS,
WHO SHALL PAY THE SAME TO THE SEVERAL CUSTOMS OFFICERS AND EMPLOYEES
ENTITLED THERETO ACCORDING TO THE RATES FIXED THEREFOR BY THE SECRETARY
OF THE TREASURY:  PROVIDED, THAT SUCH EXTRA COMPENSATION SHALL BE PAID
IF SUCH OFFICERS OR EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY AND
HAVE SO REPORTED, WHETHER THE ACTUAL LADING, UNLADING, RECEIVING,
DELIVERY, OR EXAMINATION TAKES PLACE OR NOT.  CUSTOMS OFFICERS ACTING
AS BOARDING OFFICERS AND ANY CUSTOMS OFFICER WHO MAY BE DESIGNATED FOR
THAT PURPOSE BY THE COLLECTOR OF CUSTOMS ARE HEREBY AUTHORIZED TO
ADMINISTER THE OATH OR AFFIRMATION HEREIN PROVIDED FOR, AND SUCH
BOARDING OFFICERS SHALL BE ALLOWED EXTRA COMPENSATION FOR SERVICES IN
BOARDING VESSELS AT NIGHT OR ON SUNDAYS OR HOLIDAYS AT THE RATES
PRESCRIBED BY THE SECRETARY OF THE TREASURY AS HEREIN PROVIDED, THE
SAID EXTRA COMPENSATION TO BE PAID BY THE MASTER, OWNER, AGENT, OR
CONSIGNEE OF SUCH VESSEL:  PROVIDED FURTHER, THAT IN THOSE PORTS WHERE
CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HEREINABOVE MENTIONED, THE
COLLECTOR OF CUSTOMS IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF
CUSTOMS EMPLOYEES SO AS TO AGREE WITH PREVAILING WORKING HOURS IN SAID
PORTS, BUT NOTHING CONTAINED IN THIS PROVISO SHALL BE CONSTRUED IN ANY
MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR CUSTOMS
EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED." 

FN3  46 STAT. 708, 715, C. 497, TITLE IV; 19 U.S.C. 1401, 1450,
1451: 

"SEC. 401.  MISCELLANEOUS. 

"WHEN USED IN THIS TITLE OR IN PART I OF TITLE III - 

"(A)  VESSEL.  - THE WORD 'VESSEL' INCLUDES EVERY DESCRIPTION OF
WATER CRAFT OR OTHER CONTRIVANCE USED, OR CAPABLE OF BEING USED, AS A
MEANS OF TRANSPORTATION IN WATER, BUT DOES NOT INCLUDE AIRCRAFT. 

"(B)  VEHICLE.  - THE WORD 'VEHICLE' INCLUDES EVERY DESCRIPTION OF
CARRIAGE OR OTHER CONTRIVANCE USED, OR CAPABLE OF BEING USED, AS A
MEANS OF TRANSPORTATION ON LAND, BUT DOES NOT INCLUDE AIRCRAFT. 

     .         .         .  .         . 

"(F)  DAY.  - THE WORD 'DAY' MEANS THE TIME FROM EIGHT O'CLOCK
ANTEMERIDIAN TO FIVE O'CLOCK POSTMERIDIAN. 

"(G)  NIGHT.  - THE WORD 'NIGHT' MEANS THE TIME FROM FIVE O'CLOCK
POSTMERIDIAN TO EIGHT O'CLOCK ANTEMERIDIAN. 

     .       .         .         .         . 

"SEC. 450.  UNLADING ON SUNDAYS, HOLIDAYS, OR AT NIGHT. 

"NO MERCHANDISE, BAGGAGE, OR PASSENGERS ARRIVING IN THE UNITED STATES
FROM ANY FOREIGN PORT OR PLACE, AND NO BONDED MERCHANDISE OR BAGGAGE
BEING TRANSPORTED FROM ONE PORT TO ANOTHER, SHALL BE UNLADEN FROM THE
CARRYING VESSEL OR VEHICLE ON SUNDAY, A HOLIDAY, OR AT NIGHT, EXCEPT
UNDER SPECIAL LICENSE GRANTED BY THE COLLECTOR UNDER SUCH REGULATIONS
AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE. 

"SEC. 451.  SAME - EXTRA COMPENSATION. 

"BEFORE ANY SUCH SPECIAL LICENSE TO UNLADE SHALL BE GRANTED, THE
MASTER, OWNER, OR AGENT, OF SUCH VESSEL OR VEHICLE SHALL BE REQUIRED TO
GIVE A BOND IN THE PENAL SUM TO BE FIXED BY THE COLLECTOR CONDITIONED
TO INDEMNIFY THE UNITED STATES FOR ANY LOSS OR LIABILITY WHICH MIGHT
OCCUR OR BE OCCASIONED BY REASON OF THE GRANTING OF SUCH SPECIAL
LICENSE AND TO PAY THE COMPENSATION AND EXPENSES OF THE CUSTOMS
OFFICERS AND EMPLOYEES ASSIGNED TO DUTY IN CONNECTION WITH SUCH
UNLADING AT NIGHT OR ON SUNDAY OR A HOLIDAY, IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5 OF THE ACT ENTITLED 'AN ACT TO PROVIDE FOR THE
LADING OR UNLADING OF VESSELS AT NIGHT, THE PRELIMINARY ENTRY OF
VESSELS, AND FOR OTHER PURPOSES,' APPROVED FEBRUARY 13, 1911, AS
AMENDED.  ...  AT THE REQUEST OF THE MASTER, OWNER, OR AGENT OF ANY
VESSEL, THE COLLECTOR SHALL ASSIGN CUSTOMS OFFICERS AND EMPLOYEES TO
DUTY AT NIGHT OR ON SUNDAY OR A HOLIDAY IN CONNECTION WITH THE ENTERING
OR CLEARING OF SUCH VESSEL, OR THE ISSUING AND RECORDING OF ITS MARINE
DOCUMENTS, BILLS OF SALE, MORTGAGES, OR OTHER INSTRUMENTS OF TITLE, BUT
ONLY IF THE MASTER, OWNER, OR AGENT GIVES A BOND IN A PENAL SUM TO BE
FIXED BY THE COLLECTOR, CONDITIONED TO PAY THE COMPENSATION AND
EXPENSES OF SUCH CUSTOMS OFFICERS AND EMPLOYEES, WHO SHALL BE ENTITLED
TO RATES OF COMPENSATION FIXED ON THE SAME BASIS AND PAYABLE IN THE
SAME MANNER AND UPON THE SAME TERMS AND CONDITIONS AS IN THE CASE OF
CUSTOMS OFFICERS AND EMPLOYEES ASSIGNED TO DUTY IN CONNECTION WITH
LADING OR UNLADING AT NIGHT OR ON SUNDAY OR A HOLIDAY." 

FN4  THE FACILITIES WERE LISTED BY THE COURT OF CLAIMS AS FOLLOWS: 

DETROIT AND WINDSOR FERRY, 

WALKERVILLE FERRY, 

DETROIT AND CANADA TUNNEL, 

AMBASSADOR BRIDGE, 

MICHIGAN CENTRAL TUNNEL, 

WABASH RAILWAY FERRIES, 

PERE MARQUETTE RAILWAY FERRIES, 

GRAND TRUNK RAILWAY SLIP DOCK. 

FN5  E.G., ECONOMY ACT OF 1932, 47 STAT. 382. 

FN6  NIGHTTIME IS DEFINED AS THE HOURS BETWEEN 5 P.M. AND 8 A.M.,
CUSTOMS REGULATIONS 1937, ART. 1462; 46 STAT. 708, SUPRA, NOTE 3. 

FN7  SEE NOTE 3, SUPRA.  CUSTOMS REGULATIONS 1931, ART. 1232, WAS AS
FOLLOWS: 

"ART. 1232.  ACCOUNTING FOR OVERTIME.  - (A)  UPON RECEIPT OF ANY
PAYMENTS FOR THE SERVICES OF OFFICERS AND EMPLOYEES AT NIGHT OR ON
SUNDAYS OR HOLIDAYS, COLLECTORS SHALL IMMEDIATELY DEPOSIT THE SAME IN
THEIR SPECIAL DEPOSIT ACCOUNTS AND MAKE PAYMENT THEREFROM BY CHECK TO
THE OFFICERS AND EMPLOYEES WHO RENDERED THE SERVICES, AND REFUND IN THE
SAME MANNER ANY FUNDS DEPOSITED IN EXCESS, THESE FUNDS TO BE ACCOUNTED
FOR IN THE SAME MANNER AS OTHER MONEYS DEPOSITED IN SPECIAL DEPOSIT
ACCOUNTS." 

FN8  WE DOUBT WHETHER OR NOT THE GOVERNMENT PRESENTS THIS QUESTION IN
ITS PETITION FOR CERTIORARI.  AS IT IS THE BASIS OF THE LITIGATION,
HOWEVER, WE RESOLVE THAT DOUBT IN FAVOR OF AN ADJUDICATION OF THIS
ISSUE. 

FN9  HEARINGS ON H.R. 9525, 61ST CONG., 2D SESS., PP. 461, 463, 464
465; HEARINGS ON H.R. 6577, 66TH CONG., 1ST SESS., 13.  WHEN THE 1920
AMENDMENT WAS UNDER CONSIDERATION, ITS SPONSOR, SENATOR CALDER, SAID:
"THE SHIPOWNER WOULD PAY THE COLLECTOR FOR IT, AND THEN, IN TURN, THE
MEN WOULD BE PAID BY THE GOVERNMENT."  59 CONG. REC. 640. 

FN10  THE FIRST DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1936, 49
STAT. 1636, JUNE 22, 1936, AND SO WITHIN THE PERIOD COVERED BY THIS
SUIT, MADE THE APPROPRIATION FOR THE BUREAU OF CUSTOMS "AVAILABLE" FOR
PAYMENT OF THESE CLAIMS.  THIS HAS BEEN CONTINUED, 56 STAT. 150, 155. 
THE TREASURY AND POST OFFICE DEPARTMENTS APPROPRIATION ACT OF 1944,
PUBLIC LAW 102, 78TH CONG., 1ST SESS., C. 179, SLIP LAW P. 7, 57 STAT.
250, 256, CHANGED THE FORM OF THE AUTHORIZATION FROM MAKING THE
APPROPRIATIONS AVAILABLE FOR THIS PAYMENT TO A DIRECT APPROPRIATION FOR
PAYMENT.  BUT SEE HEARINGS, SUBCOMMITTEE OF THE COMMITTEE ON WAYS AND
MEANS (HOUSE) ON H.R. 6577, 66TH CONG., 1ST SESS., P. 13. 

FN11  1 STAT. 665, SEC. 50. 

FN12  THE GOVERNMENT BRIEF FURNISHES US A CONVENIENT SUMMARY OF THE
PAY LEGISLATION:  "THE PAY ORIGINALLY FIXED AT $2 PER DIEM (ACT OF
MARCH 2, 1799, 1 STAT. 704, 706) WAS GRADUALLY INCREASED TO A MAXIMUM
OF $6 IN 1909 AND $7.80 IN 1923(ACT OF APRIL 26, 1816, 3 STAT. 306;
REV. STAT. SEC. 2733; ACT OF APRIL 29, 1864, 13 STAT. 61; ACT OF MARCH
4, 1909, 35 STAT. 1065, SEC. 2; ACT OF MARCH 4, 1923, 42 STAT. 1453). 
BY THE ACT OF MAY 29, 1928, 45 STAT. 955(19 U.S.C. 6(A)), CUSTOMS
INSPECTORS WERE GIVEN FIXED SALARIES AND PAID ON ANNUAL BASIS. 
COMPENSATION OF RESPONDENTS IS $2,100 PER ANNUM, WHICH MAY BE INCREASED
BY PROMOTION TO A MAXIMUM OF $3,300.  EVEN PRIOR TO 1928, WHEN
COMPENSATION WAS CHANGED TO AN ANNUAL BASIS, CUSTOMS INSPECTORS,
REGULARLY EMPLOYED AND PAID ON A PER DIEM BASIS, WERE PAID FOR 365 DAYS
...  THUS RECEIVING THE EQUIVALENT OF AN ANNUAL SALARY." 

FN13  S. REP. NO. 380, 41ST CONG., 3D SESS., PP. 42, 139. 

FN14  NIGHTTIME WAS APPARENTLY ADMINISTRATIVELY DETERMINED TO BE
BETWEEN 6 P.M. AND 7 A.M., 59 CONG. REC. 2171; HEARINGS BEFORE THE
COMMITTEE ON WAYS AND MEANS, HOUSE OF REPRESENTATIVES (75TH CONG., 1ST
SESS.), ON H.R. 6738(ONE OF THE BILLS WHICH BECAME THE CUSTOMS
ADMINISTRATION ACT OF 1938), AMENDING SEC. 451 OF THE TARIFF ACT OF
1930(ACT OF JUNE 25, 1938, C. 679, SEC. 9, 52 STAT. 1082), P. 185. 

FN15  SEE NOTE 2 AND FOR A GRAPHIC EXPLANATION OF THE CHANGES, SEE
INTERNATIONAL RY. CO. V. DAVIDSON, 257 U.S. 506, 510. 

FN16  THIS WAS SETTLED PRACTICE.  INTERNATIONAL RY. CO. V. DAVIDSON,
257 U.S. 506, 508. 

FN17  "4.  AS USED IN THESE FINDINGS THE WORD 'NIGHTTIME' REFERS TO
THE PERIOD 5 O'CLOCK P.M. OF ANY DAY TO 8 O'CLOCK A.M. OF THE NEXT DAY,
AND THE WORD 'DAYTIME' TO THE PERIOD 8 O'CLOCK A.M. OF ANY DAY TO 5
O'CLOCK P.M. OF THE SAME DAY.  'EXCESS PAY' REFERS TO PAY IN EXCESS OF
THE INSPECTOR'S ANNUAL SALARY.  THE WORD 'WEEK-DAY' REFERS TO ANY DAY
OF THE WEEK OTHER THAN SUNDAYS OR WHOLE HOLIDAYS, AND THE WORD
'HOLIDAY' REFERS TO A HOLIDAY OF NOT LESS THAN 24 HOURS. 

"5.  BEFORE THE OPENING OF THE AMBASSADOR BRIDGE NOVEMBER 15, 1929,
ALL CUSTOMS INSPECTORS AT THE PORT OF DETROIT WERE REGULARLY ASSIGNED
TO EIGHT-HOUR TOURS OF DUTY, WHICH MIGHT BE ANY PERIOD OF THAT LENGTH
WITHIN THE 24 HOURS OF ANY DAY OF THE WEEK, INCLUDING SUNDAYS AND
HOLIDAYS.  THEY DID NOT RECEIVE FOR NIGHTTIME SERVICES PERFORMED ON
SUCH TOURS WEEKDAYS, SUNDAYS, OR HOLIDAYS, ANY EXCESS PAY, BUT THEY DID
RECEIVE EXCESS PAY FOR DAYTIME SERVICE SO PERFORMED ON SUNDAYS OR
HOLIDAYS.  THE INSPECTORS HAD AN EIGHT-HOUR DAY AND A 56-HOUR WEEK. 
"THIS PRACTICE, HOWEVER, DID NOT WHOLLY PREVAIL AT THE MICHIGAN CENTRAL
RAILWAY, WHERE FOR CERTAIN PERIODS PRIOR TO NOVEMBER 15, 1929, EXCESS
PAY WAS NOT ALLOWED FOR DAYTIME SERVICE ON SUNDAYS OR HOLIDAYS. 

"6.  UPON THE OPENING OF THE AMBASSADOR BRIDGE NOVEMBER 15, 1929,
THERE WAS A CHANGE IN PRACTICE AT THE PORT OF DETROIT. 

"AT THE DETROIT AND WINDSOR FERRY, THE WALKERVILLE FERRY, THE DETROIT
AND CANADA TUNNEL, THE AMBASSADOR BRIDGE, AND THE FREIGHT YARD OF THE
MICHIGAN CENTRAL RAILWAY, THE CUSTOMS INSPECTORS WERE GIVEN AN EIGHT
HOUR DAY AND A 48-HOUR WEEK.    "EXCESS PAY WAS DISCONTINUED FOR
DAYTIME SERVICE PERFORMED ON SUNDAYS OR HOLIDAYS, WITHIN THE 48-HOUR
WEEK.  NO EXCESS PAY WAS GIVEN FOR NIGHTTIME SERVICE PERFORMED SUNDAYS,
HOLIDAYS, OR WEEKDAYS, WITHIN THE 48-HOUR WEEK. 

"AT THE MICHIGAN CENTRAL RAILWAY PASSENGER STATION AND THE WABASH
RAILWAY AND PERE MARQUETTE RAILWAY FERRIES, AND THE GRAND TRUNK RAILWAY
SLIP DOCK THE HOURS CONTINUED AS BEFORE, WITH AN EIGHT-HOUR DAY AND A
56-HOUR WEEK.  EXCESS PAY WAS CONTINUED AT THESE LAST FOUR PLACES FOR
DAYTIME SERVICE PERFORMED ON SUNDAYS AND HOLIDAYS, EVEN THOUGH WITHIN
THE 56-HOUR LIMIT, BUT NO EXCESS PAY WAS GIVEN FOR NIGHTTIME SERVICE
THERE ON SUNDAYS, HOLIDAYS, OR WEEKDAYS, PERFORMED WITHIN THE 56-HOUR
PERIOD. 

"AFTER MARCH 3, 1931, THE DATE OF GOING INTO EFFECT OF THE SATURDAY
HALF-HOLIDAY FOR FEDERAL EMPLOYEES, THE HOURS OF EMPLOYMENT PER WEEK
WERE REDUCED TO 44 AT THE DETROIT AND WINDSOR FERRY, THE WALKERVILLE
FERRY, THE DETROIT AND CANADA TUNNEL, THE AMBASSADOR BRIDGE AND THE
FREIGHT YARD OF THE MICHIGAN CENTRAL RAILWAY, AND TO 52 HOURS PER WEEK
AT THE PASSENGER STATION OF THE MICHIGAN CENTRAL RAILWAY, AT THE WABASH
RAILWAY AND PERE MARQUETTE RAILWAY FERRIES, AND AT THE GRAND TRUNK
RAILWAY SLIP DOCK, WITH CONDITIONS OF EXCESS PAY AS BEFORE BUT WITHIN
AND BASED UPON THE NEW PERIOD OF 44 HOURS.  PAY IN EXCESS OF THEIR
ANNUAL SALARIES WAS GIVEN TO INSPECTORS FOR TIME SERVED IN EXCESS OF 44
HOURS PER WEEK AT THE PASSENGER STATION OF THE MICHIGAN CENTRAL
RAILWAY, AT THE WABASH RAILWAY AND PERE MARQUETTE RAILWAY FERRIES AND
AT THE GRAND TRUNK RAILWAY SLIP DOCK NOTWITHSTANDING THE 52-HOUR
WEEK." 

FN18  THE REFERENCES ARE TO THE 1937 EDITIONS: 

"ART. 1242.  EXTRA COMPENSATION.  - (A)  CUSTOMS OFFICERS AND
EMPLOYEES PERFORMING SERVICES AT NIGHT, OR ON SUNDAYS AND HOLIDAYS, FOR
LADING OR UNLADING OF CARGO OR MERCHANDISE  ...  SHALL RECEIVE EXTRA
COMPENSATION, TO BE PAID BY THE MASTER, OWNER, OR AGENT OF THE VESSEL,
OR BY THE TRANSPORTATION COMPANY.  ...  " 

"(E) THE EXTRA COMPENSATION FOR OVERTIME SERVICES IS IN ADDITION TO
THE REGULAR COMPENSATION PAID BY THE GOVERNMENT IN THE CASE OF OFFICERS
AND EMPLOYEES WHOSE COMPENSATION IS FIXED ON THE ORDINARY PER DIEM
BASIS AND THOSE RECEIVING A COMPENSATION PER MONTH OR PER ANNUM." 

"ART. 1462.  HOURS OF SERVICE.  - (A)  THE OFFICIAL HOURS OF
OFFICERS, CLERKS, EXAMINERS, AND EMPLOYEES, EXCEPT THOSE HEREINAFTER
SPECIFIED, WILL BE FROM 9 A.M. TO 4:30 P.M., WITH A HALF HOUR FOR
LUNCH. 

"(B)  THE OFFICIAL HOURS OF THE FOLLOWING EMPLOYEES WILL BE:  STAFF
OFFICERS, STATION INSPECTORS, AND INSPECTORS TO WHATEVER DUTY ASSIGNED,
SUGAR SAMPLERS, SAMPLERS, LABORERS, STOREKEEPERS, AND OUTSIDE
MESSENGERS, FROM 8 A.M. TO 5 P.M., 1 HOUR FOR LUNCH; VERIFIERS-OPENERS
PACKERS AND OPENERS AND PACKERS, 8 A.M. TO 4:30 P.M., ONE-HALF HOUR FOR
LUNCH; CUSTOMS GUARDS NOT LESS THAN 8 HOURS. 

"(C)  THE ABOVE HOURS MAY BE EXTENDED AS THE NEEDS OF THE SERVICE
DEMAND, AND SUCH EXTENSION SHALL BE WITHOUT ADDITIONAL COMPENSATION,
EXCEPT AS PROVIDED FOR IN THE ACT OF FEBRUARY 13, 1911, AS AMENDED BY
THE ACT OF FEBRUARY 7, 1920. 

"(D)  THE ACT OF FEBRUARY 7, 1920, ALSO PROVIDES THAT IN THOSE PORTS
WHERE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE ABOVE MENTIONED, THE
COLLECTOR OF CUSTOMS IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF
CUSTOMS EMPLOYEES SO AS TO AGREE WITH PREVAILING WORKING HOURS IN SAID
PORT, BUT NOTHING CONTAINED IN THIS PROVISO SHALL BE CONSTRUED IN ANY
MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING-DAY FOR CUSTOMS
EMPLOYEES OR THE OVERTIME PAY FIXED FOR SUCH EMPLOYEES.  ... " 

FN19  THIS QUOTATION IS FROM HEARINGS MAY 5, 1910, ON A BILL SIMILAR
TO THE ONE WHICH BECAME THE ACT OF FEBRUARY 13, 1911.  HEARINGS BEFORE
HOUSE COM. ON WAYS AND MEANS, ON H.R. 9525, 61ST CONG., 2D SESS. 

FN20  HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON WAYS AND
MEANS (HOUSE) ON H.R. 6577, 66TH CONG., 1ST SESS., OCTOBER 11, 1919,
PP. 1-19, PARTICULARLY P. 11. 

FN21  SEE ALSO HEARINGS, SENATE COMMITTEE ON FINANCE, 71ST CONG., 1ST
SESS., ON H.R. 2667, P. 494. 

FN22  HEARINGS ON S. 1504, S. 1774 AND S. 2188, COMMITTEE ON COMMERCE
(SENATE), 67TH CONG., 1ST AND 2D SESS., PP. 30, 31 AND 130. 

FN23  SEE T.D. 49658, APPROVED JULY 18, 1938, AFTER THE PERIOD HERE
IN QUESTION, WHERE ART. 1242(G) IS AMENDED TO READ AS FOLLOWS: 

"(G)  EXTRA COMPENSATION IS NOT AUTHORIZED FOR ANY SERVICE PERFORMED
BY A CUSTOMS OFFICER OR EMPLOYEE PURSUANT TO HIS ASSIGNMENT TO A
REGULAR TOUR OF DUTY AT NIGHT OR ON A SUNDAY OR HOLIDAY." 

THERE ARE SIMILAR OVERTIME ACTS IN OTHER SERVICES.  THEY ALLOW
SUNDAYS AND HOLIDAYS EXTRA.  CF. 46 STAT. 1467, AND U.S. DEPT. OF
LABOR, BUREAU OF IMMIGRATION GENERAL ORDER NO. 175, APRIL 27, 1931,
(D); 49 STAT. 1380 AND DEPT. OF COMMERCE CIRCULAR NO. 307, DECEMBER 17,
1938; BUREAU OF MARINE INSPECTION AND NAVIGATION, II; 48 STAT. 1064, AS
AMENDED, AND FEDERAL COMMUNICATIONS COMMISSION RULES AND REGULATIONS,
PART 8, SEC. 8.301(I). 

FN24  SEE ALSO SEC. 9 OF THE CUSTOMS ADMINISTRATION ACT OF 1938. 

THE CHANGE WAS DEEMED SIGNIFICANT AS TO RAILROADS.  COMPARE MELLON V.
MINNEAPOLIS, ST. P. & S.S.M. RY. CO., 285 F. 980, WITH MELLON V.
MINNEAPOLIS, ST. P. & S.S.M. RY. CO., 11 F.2D 332, 334. 

MR. CHIEF JUSTICE STONE IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
REVERSED IN ITS ENTIRETY AND THE SUITS DISMISSED. 

(THE FOREGOING OPINION OF THE COURT IS PRINTED AS AMENDED BY AN ORDER
OF FEBRUARY 28, 1944, UNITED STATES V. MYERS, 321 U.S.) 
..END :















CALIFORNIA V. UNITED STATES, 320 U.S. 577 


ARGUED DECEMBER 6, 1943.  - DECIDED JANUARY 3, 1944.  - 46 F.SUPP.  474,
AFFIRMED. 


THE MARITIME COMMISSION, UPON FINDING THAT WATERFRONT TERMINALS IN THE
SAN FRANCISCO BAY AREA WERE ENGAGED IN PREFERENTIAL AND UNREASONABLE
PRACTICES - RESULTING FROM EXCESSIVE FREE TIME AND NONCOMPENSATORY
DEMURRAGE CHARGES - IN VIOLATION OF SECS. 16 AND 17 OF THE SHIPPING ACT
OF 1916, AS AMENDED, PRESCRIBED SCHEDULES OF MAXIMUM FREE TIME AND
MINIMUM DEMURRAGE CHARGES.  THE STATE AND A MUNICIPALITY, WHICH
OPERATED TERMINALS BUT WHICH WERE NOT COMMON CARRIERS BY WATER,
CHALLENGED THE VALIDITY OF THE ORDER AS APPLIED TO THEM.  HELD: 

1.  THE ORDER WAS PROPER UNDER SEC. 17 WHICH AUTHORIZES THE
COMMISSION, WHEN IT FINDS UNJUST AND UNREASONABLE A REGULATION OR
PRACTICE RELATING TO OR CONNECTED WITH THE RECEIVING, HANDLING,
STORING, OR DELIVERING OF PROPERTY, TO "DETERMINE, PRESCRIBE, AND ORDER
ENFORCED A JUST AND REASONABLE REGULATION OR PRACTICE."  P. 584. 

2.  IT WAS PROPER TO FIX MINIMUM DEMURRAGE CHARGES WHICH WOULD
REFLECT THE COST OF THE SERVICE.  P. 583. 

3.  THE PHRASE "OTHER PERSON SUBJECT TO THIS ACT" - DEFINED IN SEC. 1
AS "ANY PERSON NOT INCLUDED IN THE TERM 'COMMON CARRIER BY WATER,'
CARRYING ON THE BUSINESS OF FORWARDING OR FURNISHING WHARFAGE DOCK,
WAREHOUSE, OR OTHER TERMINAL FACILITIES IN CONNECTION WITH A COMMON
CARRIER BY WATER" - INCLUDES THE STATE AND THE MUNICIPALITY.  P. 585. 

4.  REGULATION OF THE ACTIVITIES AND INSTRUMENTALITIES HERE INVOLVED
WHETHER ACTIVITIES AND INSTRUMENTALITIES OF PRIVATE OR PUBLIC AGENCIES
- WAS WITHIN THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE.  P. 586. 

CALIFORNIA ET AL. V. UNITED STATES ET AL. 

NO. 20.  APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF CALIFORNIA* . 

*TOGETHER WITH NO. 22, OAKLAND V. UNITED STATES ET AL., ALSO ON
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

APPEALS FROM DECREES OF A DISTRICT COURT OF THREE JUDGES REFUSING TO
SET ASIDE AN ORDER OF THE MARITIME COMMISSION, 2 U.S.M.C. 588. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES MARITIME COMMISSION FOUND THAT TERMINALS ALONG THE
COMMERCIAL WATERFRONT IN THE PORT OF SAN FRANCISCO WERE ENGAGED IN
PREFERENTIAL AND UNREASONABLE PRACTICES IN THAT THEY ALLOWED EXCESSIVE
FREE TIME AND MADE NON-COMPENSATORY CHARGES FOR THEIR SERVICES, ALL IN
VIOLATION OF SECS. 16 AND 17 OF THE SHIPPING ACT OF 1916, AS AMENDED. 
FN1  ACCORDINGLY, THE COMMISSION ORDERED THE CESSATION OF THESE
PROSCRIBED PRACTICES, AND IN ORDER TO ASSURE LAWFUL PRACTICES IT
PRESCRIBED SCHEDULES OF MAXIMUM FREE TIME PERIODS AND OF MINIMUM
CHARGES TO REFLECT THE ACTUAL COST OF SERVICES.  2 U.S.M.C. 588.  TWO
OF THE TERMINAL OPERATORS IN THE SAN FRANCISCO BAY AREA WERE THE STATE
OF CALIFORNIA AND THE CITY OF OAKLAND.  THEY BROUGHT THESE PROCEEDINGS
TO SET ASIDE THE COMMISSION'S ORDER IN SO FAR AS IT APPLIED TO THEM.  A
DISTRICT COURT OF THREE JUDGES DENIED RELIEF.  46 F.SUPP.  474.  THE
CASE IS HERE ON DIRECT APPEAL UNDER SEC. 31 OF THE SHIPPING ACT (C.
451, 39 STAT. 738, EX. ORD. NO. 6166, C. 858, 49 STAT. 1987, 2016, 46
U.S.C. SEC. 830) IN CONNECTION WITH THE URGENT DEFICIENCIES ACT OF
1913(C. 32, 38 STAT. 220, 28 U.S.C. SECS. 47 AND 47A) AND THE JUDICIARY
ACT OF 1925(C. 229, 43 STAT. 938, 28 U.S.C. SEC. 345(4)).  CALIFORNIA
AND OAKLAND DENIED THE POWER OF THE COMMISSION TO ISSUE THE KIND OF
ORDER THAT IT DID, AND IN ANY EVENT THEY URGED THAT THE AUTHORITY UNDER
WHICH THE COMMISSION ACTED DOES NOT OR, IF IT DOES, CANNOT
CONSTITUTIONALLY COVER THEIR OPERATIONS. 

THE LEGAL ISSUES DEPEND FOR THEIR SOLUTION UPON AN UNDERSTANDING OF
THE SITUATION TO WHICH THE COMMISSION ADDRESSED ITSELF - THE
CIRCUMSTANCES AS THE COMMISSION FOUND THEM AND THE APPROPRIATE WAY OF
DEALING WITH THEM.  WHAT FOLLOWS IS A RAPID SUMMARY OF A VOLUMINOUS
RECORD. 

THROUGH ITS BOARD OF STATE HARBOR COMMISSIONERS, CALIFORNIA PROVIDES
FACILITIES FOR THE HANDLING OF FREIGHT AND PASSENGERS ON THE SAN
FRANCISCO WATERFRONT, UNDER A STATUTE WHICH PROHIBITS THE BOARD FROM
MAKING CHARGES BEYOND THE COST OF FURNISHING SUCH FACILITIES AND
ADMINISTERING THEM.  CALIFORNIA HARBORS AND NAVIGATION CODE SECS. 3080,
3084.  PIER AND OFFICE SPACE IS ASSIGNED BY THE BOARD TO VARIOUS
STEAMSHIP LINES, AND CHARGES FIXED BY THE BOARD ARE COLLECTED BY THESE
ASSIGNEES FOR THE BOARD.  EXCEPT AT TWO PIERS, THE ASSIGNEES HANDLE THE
CARGO, BUT THE BOARD EMPLOYS A STAFF OF MEN TO CHECK ALL CARGO AND
VESSEL MOVEMENTS AND COLLECT ITS CHARGES.  OAKLAND, THROUGH ITS BOARD
OF PORT COMMISSIONERS, OPERATES PIERS AND TERMINALS WHICH, LIKE THOSE
OF CALIFORNIA, ARE DESIGNED TO ACCOMMODATE VESSELS IN COASTWISE,
INTERCOASTAL, OFFSHORE, AND FOREIGN TRADE.  WHETHER THE FACILITIES ARE
OPERATED BY THE CITY DIRECTLY OR LEASED TO ANOTHER, THE CITY PRESCRIBES
AND COLLECTS THE CHARGES. 

IN THUS PROVIDING FACILITIES FOR WATER-BORNE TRAFFIC, OAKLAND AND
CALIFORNIA HAVE FOR MANY YEARS COMPETED WITH PRIVATELY-OWNED TERMINALS
IN SAN FRANCISCO BAY.  CUTTHROAT COMPETITION ENSUED, WITH THE
INEVITABLE CHAOS FOLLOWING ABNORMALLY LOW RATES.  IN AN ATTEMPT TO
REMEDY THE SITUATION, THE CALIFORNIA RAILROAD COMMISSION INVESTIGATED
THE OPERATIONS OF TERMINALS IN SAN FRANCISCO BAY, AND, MORE
PARTICULARLY PERTINENT FOR PRESENT PURPOSES, THE PREVALENT
DISCRIMINATION AMONG USERS OF THE TERMINAL SERVICES.  THE CONCLUSIONS
FROM THIS INQUIRY WERE EMBODIED IN AN ORDER ISSUED BY THE RAILROAD
COMMISSION IN 1936.  40 CALIF. R.R. COMM. DECISIONS 107.  BUT PUBLICLY
OWNED TERMINALS, AND THEREFORE THOSE OF CALIFORNIA AND OAKLAND, ARE NOT
SUBJECT TO THE JURISDICTION OF THE RAILROAD COMMISSION.  SINCE THESE
PUBLIC BODIES OPERATED THE MAJOR PORTION OF THE DOCK FACILITIES IN THE
AREA, THE RAILROAD COMMISSION NATURALLY FOUND IT IMPOSSIBLE TO ORDER
ADJUSTMENTS IN THE PRACTICES OF THE PRIVATE TERMINALS UNLESS THE
COMPETING PUBLIC BODIES AGREED TO MAKE SIMILAR ADJUSTMENTS.  THE ORDER
OF THE COMMISSION WAS SO CONDITIONED.  CALIFORNIA AND OAKLAND ACCEDED
TO THE RECOMMENDATIONS IN SOME RESPECTS BUT FAILED TO DO SO AS TO
PRACTICES NOW TO BE DESCRIBED. 

WHEN CARGO IS BROUGHT TO A WHARF FOR SHIPMENT OR REMOVED TO A WHARF
FROM A SHIP, IT IS THE CUSTOM TO ALLOW A PERIOD OF "FREE TIME" DURING
WHICH THE CARGO MAY REST ON THE WHARF WITHOUT CHARGE.  THE LENGTH OF
THE FREE TIME IS FIXED, BROADLY SPEAKING, BY DETERMINING THE PERIOD
REASONABLY NECESSARY FOR THE SHIPPER TO ASSEMBLE OR TO REMOVE HIS GOODS
AND FOR THE SHIP TO LOAD OR TO DISCHARGE.  WHEN CARGO IS LEFT ON THE
WHARF BEYOND THE FREE TIME PERIOD, A CHARGE CALLED "WHARF DEMURRAGE OR
STORAGE" IS ASSESSED.  THE RAILROAD COMMISSION RECOMMENDED FREE TIME
PERIODS SHORTER THAN WAS THE PRACTICE OF CALIFORNIA AND OAKLAND, AND
WHARF DEMURRAGE CHARGES GREATER IN MANY INSTANCES THAN THOSE COLLECTED
BY THEM.  THESE RECOMMENDATIONS CALIFORNIA AND OAKLAND REJECTED.  THIS
IMPASSE, DUE TO THE IMMUNITY OF CALIFORNIA AND OAKLAND FROM STATE
REGULATION, WAS FOLLOWED BY THE PROCEEDINGS BEFORE THE UNITED STATES
MARITIME COMMISSION WHICH RESULTED IN THE ORDER NOW BEFORE US.
EXTENDED HEARINGS WERE HELD BEFORE THE COMMISSION'S EXAMINER, AT WHICH
THE PRINCIPAL WITNESSES WERE OFFICIALS OF THE BOARD AND OAKLAND AND AN
EXPERT OF THE RAILROAD COMMISSION.  AFTER FULL SUBMISSION OF THE
CONTROVERSY, THE EXAMINER MADE HIS REPORT AND FINDINGS.  ON EXCEPTIONS
TO SOME OF HIS FINDINGS, THE ISSUES WERE AGAIN THOROUGHLY CANVASSED
BEFORE THE COMMISSION, AND ON SEPTEMBER 11, 1941, IT MADE ITS ORDER. 

THE COMMISSION FOUND THAT THERE WAS A MARKED LACK OF UNIFORMITY IN
THE FREE TIME PERIODS ALLOWED BY THE VARIOUS TERMINALS, AND THAT TO THE
EXTENT THAT APPELLANTS' FREE TIME ALLOWANCES WERE GREATER THAN THOSE
RECOMMENDED BY THE RAILROAD COMMISSION THEY WERE UNREASONABLE AND LED
TO DISCRIMINATION AGAINST THOSE PERSONS WHO DID NOT AND COULD NOT USE
EXTENDED FREE TIME.  AFTER CONSIDERATION OF THE COST STUDIES SUBMITTED
BY ITS EXPERTS AS WELL AS OF THE DATA INTRODUCED BY APPELLANTS, THE
COMMISSION FURTHER FOUND THAT APPELLANTS' DEMURRAGE CHARGES WERE LESS
THAN THE COST OF THE SERVICES AND THE CARRYING CHARGES OF THE
FACILITIES WHICH FURNISHED THEM.  IT CONCLUDED THAT UNLESS THOSE WHO
TOOK ADVANTAGE OF WHARF STORAGE SUPPLIED REVENUE SUFFICIENT TO MEET THE
COST OF THE SERVICE, THE BURDEN WOULD BE SHIFTED TO THOSE WHO PAID
APPELLANTS FOR OTHER TERMINAL SERVICES, SUCH AS DOCKING OF VESSELS,
LOADING AND UNLOADING, AND TRANSPORTATION PRIVILEGES OVER AND THROUGH
THE TERMINALS.  ACCORDINGLY, THE COMMISSION ORDERED APPELLANTS TO CEASE
AND DESIST FROM ALLOWING GREATER PERIODS OF FREE TIME THAN THOSE FOUND
REASONABLE BY THE RAILROAD COMMISSION, AND TO ABSTAIN FROM COLLECTING
WHARF DEMURRAGE AND STORAGE RATES LESS THAN THOSE PRESCRIBED BY THE
CALIFORNIA AUTHORITY FOR PRIVATE TERMINALS.  FN2 

HAVING FOUND VIOLATIONS OF SECS. 16 AND 17, THE COMMISSION WAS
CHARGED BY LAW WITH THE DUTY OF DEVISING APPROPRIATE MEANS FOR THEIR
CORRECTION.  IT COULD HAVE ISSUED AN ORDER GENERALLY PROHIBITING
FURTHER PREFERENTIAL AND UNREASONABLE PRACTICES, LEAVING THE PARTIES TO
TRANSLATE SUCH A GENERALITY INTO CONCRETENESS AND TO DEVISE THEIR OWN
REMEDIES.  THE COMMISSION CHOSE TO DO OTHERWISE.  IT CAN HARDLY BE
SUGGESTED THAT THE PROTECTION OF THE NATIONAL INTEREST IN INTERSTATE
AND FOREIGN COMMERCE OR EVEN THE CONVENIENCE OF THE PARTIES WOULD, AS A
MATTER OF SENSIBLE AND ECONOMIC ADMINISTRATION, LIMIT THE COMMISSION TO
SUCH NEGATIVE MEANS OF DEALING WITH THE EVILS REVEALED ON THIS RECORD
IN ONE OF OUR GREATEST PORTS.  CF. PHELPS DODGE CORP. V. LABOR BOARD,
313 U.S. 177, 194.  EXPLICIT FORMULATION OF DUTIES OWED BY A BUSINESS
SUBJECT TO LEGAL REGULATION IS DESIRABLE IF INDEED NOT NECESSARY.  ONLY
THUS CAN IT AVOID THE HAZARDS OF UNCERTAINTY WHETHER ITS ATTEMPTED
COMPLIANCE WITH AN UNDEFINED REQUIREMENT OF LAW IS IN FACT COMPLIANCE. 
NEITHER INDUSTRY NOR THE COMMUNITY WHICH IT SERVES IS BENEFITED BY THE
EXPLOSION OF INTERMITTENT LAWSUITS FOR DETERMINING THE RELATIVE RIGHTS
OF CONFLICTING INTERESTS.  WHAT MORE NATURAL FOR THE COMMISSION, HAVING
FOUND DISOBEDIENCE OF THE LAW AGAINST DISCRIMINATORY AND UNREASONABLE
PRACTICES, THAN TO DEFINE THE OUTER BOUNDS OF PRACTICES THAT WOULD NOT
BE UNREASONABLE NOR DISCRIMINATORY.  FN3  AND SO THE COMMISSION FIXED A
SCHEDULE OF MAXIMUM FREE TIME AND ANOTHER SCHEDULE FOR AVOIDING
DISCRIMINATION THROUGH NON-COMPENSATORY CHARGES.  IT ACTED ON
AUTHORITATIVE INFORMATION AND FULLY CANVASSED TESTIMONY IN FIXING THE
MINIMUM CHARGES THAT WOULD REFLECT COST.  IT WAS PROPER TO CHOOSE THE
COST STANDARD, BECAUSE JUST AS UNREASONABLY LONG FREE TIME TENDS TO BE
PARASITIC ON RATES FOR OTHER SERVICES, NON-COMPENSATORY DEMURRAGE
RESULTS IN THE SAME MISCHIEF.  CF. BALTIMORE & OHIO R. CO. V. UNITED
STATES, 305 U.S. 507, 524. 

APPELLANTS' OBJECTION IS THAT WHILE SECS. 17 AND 18 SPECIFICALLY GIVE
THE COMMISSION RATE-MAKING POWER OVER COMMON CARRIERS BY WATER,  FN4
NO SUCH POWER IS GIVEN OVER THOSE WHO, LIKE CALIFORNIA AND OAKLAND, ARE
NOT COMMON CARRIERS BY WATER.  WE FULLY AGREE THAT NO RATE-MAKING POWER
SUCH AS THE COMMISSION HAS BEEN GIVEN OVER WATER CARRIERS IS CONFERRED
OVER OTHER PERSONS SUBJECT TO THE SHIPPING ACT.  BUT THE ORDER OF THE
COMMISSION, THOUGH IT PERTAINS TO DEMURRAGE CHARGES, IS NOT AN EXERCISE
OF CONVENTIONAL RATE-MAKING.  BY SEC. 17 ALL THOSE WHO ARE SUBJECT TO
THE ACT ARE UNDER A DUTY TO "ESTABLISH, OBSERVE, AND ENFORCE JUST AND
REASONABLE REGULATIONS AND PRACTICES RELATING TO OR CONNECTED WITH THE
RECEIVING, HANDLING, STORING, OR DELIVERING OF PROPERTY."  WHEN THE
COMMISSION FINDS A BREACH OF THIS DUTY, THE SAME SECTION AUTHORIZES IT
TO "DETERMINE, PRESCRIBE, AND ORDER ENFORCED A JUST AND REASONABLE
REGULATION OR PRACTICE."  THE WITHHOLDING OF RATE-MAKING POWER FOR
SERVICES OTHER THAN WATER CARRIAGE DOES NOT QUALIFY THE UNLIMITED GRANT
TO THE COMMISSION OF THE POWER TO STOP EFFECTIVELY ALL UNJUST AND
UNREASONABLE PRACTICES IN RECEIVING, HANDLING, STORING OR DELIVERING
PROPERTY.  FINDING A WRONG WHICH IT IS DUTY-BOUND TO REMEDY, THE
MARITIME COMMISSION, AS THE EXPERT BODY ESTABLISHED BY CONGRESS FOR
SAFEGUARDING THIS SPECIALIZED ASPECT OF THE NATIONAL INTEREST, MAY,
WITHIN THE GENERAL FRAMEWORK OF THE SHIPPING ACT, FASHION THE TOOLS FOR
SO DOING.  CF. UNITED STATES NAVIGATION CO. V. CUNARD S.S. CO., 284
U.S. 474, 487; MERCHANTS WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501,
513.  THE ONLY WAY TO CORRECT THE PREFERENTIAL AND UNREASONABLE RESULTS
OF NON-COMPENSATORY CHARGES WAS TO REQUIRE COMPENSATORY CHARGES.  ALL
THAT THE COMMISSION DID WAS TO TRANSLATE THAT REQUIREMENT FROM A
GENERALITY INTO DOLLARS AND CENTS.  THAT THE PHRASE "REGULATION OR
PRACTICE" EXTENDS TO SUCH DISCRIMINATION AS THAT WHICH RESULTED FROM
NON-COMPENSATORY DEMURRAGE CHARGES IS AMPLY DEMONSTRATED BY THE
APPLICATION OF THE CONCEPT "PRACTICE" IN COMPARABLE SITUATIONS UNDER
THE INTERSTATE COMMERCE ACT.  ADAMS V. MILLS, 286 U.S. 397, 409;
BALTIMORE & OHIO R. CO. V. UNITED STATES, 305 U.S. 507, 524. 

WE HAVE DISPOSED OF THE ONLY SERIOUS QUESTION RAISED.  THE NUMEROUS
OTHER QUESTIONS CALL FOR ONLY SUMMARY TREATMENT. 

SINCE OAKLAND AND CALIFORNIA ARE NOT COMMON CARRIERS BY WATER THEY
ARE SUBJECT TO THE AUTHORITY OF THE COMMISSION ONLY IF THEY COME WITHIN
THE DESIGNATION "OTHER PERSON SUBJECT TO THIS ACT" AS DEFINED IN SEC. 1
OF THE SHIPPING ACT.  C. 451, 39 STAT. 728, C. 152, 40 STAT. 900, 46
U.S.C. SEC. 801.  THE PHRASE COVERS "ANY PERSON NOT INCLUDED IN THE
TERM 'COMMON CARRIER BY WATER,' CARRYING ON THE BUSINESS OF FORWARDING
OR FURNISHING WHARFAGE, DOCK, WAREHOUSE, OR OTHER TERMINAL FACILITIES
IN CONNECTION WITH A COMMON CARRIER BY WATER."  AND "PERSON" "INCLUDES
CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS  ...  "  WE NEED NOT WASTE
TIME ON USELESS GENERALITIES ABOUT STATUTORY CONSTRUCTION IN ORDER TO
CONCLUDE THAT ENTITIES OTHER THAN TECHNICAL CORPORATIONS, PARTNERSHIPS
AND ASSOCIATIONS ARE "INCLUDED" AMONG THE "PERSONS" TO WHOM THE
SHIPPING ACT APPLIES IF ITS PLAIN PURPOSES PRECLUDE THEIR EXCLUSION. 
THE CRUCIAL QUESTION IS WHETHER THE STATUTE, READ IN THE LIGHT OF THE
CIRCUMSTANCES THAT GAVE RISE TO ITS ENACTMENT AND FOR WHICH IT WAS
DESIGNED, APPLIES ALSO TO PUBLIC OWNERS OF WHARVES AND PIERS. 
CALIFORNIA AND OAKLAND FURNISHED PRECISELY THE FACILITIES SUBJECT TO
REGULATION UNDER THE ACT, AND WITH SO LARGE A PORTION OF THE NATION'S
DOCK FACILITIES, AS CONGRESS KNEW (53 CONG. REC. 8276), OWNED OR
CONTROLLED BY PUBLIC INSTRUMENTALITIES, IT WOULD HAVE DEFEATED THE VERY
PURPOSE FOR WHICH CONGRESS FRAMED THE SCHEME FOR REGULATING WATERFRONT
TERMINALS TO EXEMPT THOSE OPERATED BY GOVERNMENTAL AGENCIES.  WE NEED
NOT REST ON INFERENCE TO AVOID A CONSTRUCTION THAT WOULD HAVE SUCH
DISLOCATING CONSEQUENCES.  THE MANAGER OF THE BILL WHICH BECAME THE
SHIPPING ACT OF 1916, SPEAKING ON THE FLOOR OF THE HOUSE, LEFT NO DOUBT
THAT THE LEGISLATION WAS DESIGNED TO PREVENT DISCRIMINATION NO LESS BY
PUBLIC THAN BY PRIVATE OWNERS.  53 CONG. REC. 8276.  AND WHATEVER MAY
BE THE LIMITATIONS IMPLIED BY THE PHRASE "IN CONNECTION WITH A COMMON
CARRIER BY WATER" WHICH MODIFIES THE GRANT OF JURISDICTION OVER THOSE
FURNISHING "WHARFAGE, DOCK, WAREHOUSE, OR OTHER TERMINAL FACILITIES,"
THERE CAN BE NO DOUBT THAT WHARF STORAGE FACILITIES PROVIDED AT
SHIPSIDE FOR CARGO WHICH HAS BEEN UNLOADED FROM WATER CARRIERS ARE
SUBJECT TO REGULATION BY THE COMMISSION.  FINALLY, IT IS TOO LATE IN
THE DAY TO QUESTION THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE TO
REGULATE SUCH AN ESSENTIAL PART OF INTERSTATE AND FOREIGN TRADE AS THE
ACTIVITIES AND INSTRUMENTALITIES WHICH WERE HERE AUTHORIZED TO BE
REGULATED BY THE COMMISSION, WHETHER THEY BE THE ACTIVITIES AND
INSTRUMENTALITIES OF PRIVATE PERSONS OR OF PUBLIC AGENCIES.  UNITED
STATES V. CALIFORNIA, 297 U.S. 175, 184-5. 

DUE CONSIDERATION HAS BEEN GIVEN TO OTHER OBJECTIONS, REFERRING TO
THE SUFFICIENCY OF THE EVIDENCE BEFORE THE COMMISSION, THE ADEQUACY OF
ITS FINDINGS, AND ITS COMPETENCE, BUT THEY REQUIRE NO DISCUSSION. 
AFFIRMED. 

FN1  SECTION 16, SO FAR AS HERE RELEVANT, PROVIDES:  "THAT IT SHALL
BE UNLAWFUL FOR ANY COMMON CARRIER BY WATER, OR OTHER PERSON SUBJECT TO
THIS ACT, EITHER ALONE OR IN CONJUNCTION WITH ANY OTHER PERSON,
DIRECTLY OR INDIRECTLY - FIRST.  TO MAKE OR GIVE ANY UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON,
LOCALITY, OR DESCRIPTION OF TRAFFIC IN ANY RESPECT WHATSOEVER, OR TO
SUBJECT ANY PARTICULAR PERSON, LOCALITY, OR DESCRIPTION OF TRAFFIC TO
ANY UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT
WHATSOEVER."  C. 451, 39 STAT. 734, C. 581, 49 STAT. 1518, 46 U.S.C.
SEC. 815. 

THE PERTINENT PORTION OF SEC. 17 READS:  "EVERY SUCH CARRIER AND
EVERY OTHER PERSON SUBJECT TO THIS ACT SHALL ESTABLISH, OBSERVE, AND
ENFORCE JUST AND REASONABLE REGULATIONS AND PRACTICES RELATING TO OR
CONNECTED WITH THE RECEIVING, HANDLING, STORING, OR DELIVERING OF
PROPERTY.  WHENEVER THE COMMISSION FINDS THAT ANY SUCH REGULATION OR
PRACTICE IS UNJUST OR UNREASONABLE IT MAY DETERMINE, PRESCRIBE, AND
ORDER ENFORCED A JUST AND REASONABLE REGULATION OR PRACTICE."  C. 451,
39 STAT. 734, EX. ORD. NO. 6166, C. 858, 49 STAT. 1987, 2016, 46 U.S.C.
SEC. 816. 

FN2  THE CITY OF OAKLAND ASKS THIS COURT TO DETERMINE WHETHER THE
MARITIME COMMISSION PROPERLY FOUND THAT SEC. 15 OF THE SHIPPING ACT
REQUIRED OAKLAND TO SUBMIT CERTAIN LEASE AGREEMENTS FOR THE
COMMISSION'S APPROVAL.  C. 451, 39 STAT. 733, EX. ORD. NO. 6166, C.
858, 49 STAT. 1987, 2016, 46 U.S.C. SEC. 814.  THE COMMISSION'S ORDER
DOES NOT APPEAR TO REQUIRE SUCH FILING.  IF THIS BE AN INADVERTENT OR
CLERICAL OMISSION, SINCE OAKLAND'S OBJECTION IS FOUNDED ON ITS BASIC
CONTENTION THAT IT IS NOT SUBJECT TO THE SHIPPING ACT, WE NEED NOT
FURTHER CONSIDER THIS SUBSIDIARY QUESTION. 

FN3  BOOTH S.S. CO. V. UNITED STATES, 29 F.SUPP.  221, IS AN OBJECT
LESSON.  IN THAT CASE, THE ORDER OF THE MARITIME COMMISSION AS TO THE
CHARGES TO BE IMPOSED AFTER FREE TIME WAS IN GENERAL TERMS.  ATTEMPTED
COMPLIANCE WITH THAT ORDER LED TO CONFLICT, AND THE COMMISSION FOUND IT
NECESSARY TO UNDERTAKE NEW PROCEEDINGS AND TO ISSUE A NEW, MORE
DEFINITE ORDER. 

FN4  THE FOLLOWING ARE THE RATE PROVISIONS IN SECS. 17 AND 18. 
DEMAND, CHARGE, OR COLLECT ANY RATE, FARE, OR CHARGE WHICH IS UNJUSTLY
DISCRIMINATORY BETWEEN SHIPPERS OR PORTS, OR UNJUSTLY PREJUDICIAL TO
EXPORTERS OF THE UNITED STATES AS COMPARED WITH THEIR FOREIGN
COMPETITORS.  WHENEVER THE COMMISSION FINDS THAT ANY SUCH RATE, FARE,
OR CHARGE IS DEMANDED, CHARGED, OR COLLECTED IT MAY ALTER THE SAME TO
THE EXTENT NECESSARY TO CORRECT SUCH UNJUST DISCRIMINATION OR PREJUDICE
AND MAKE AN ORDER THAT THE CARRIER SHALL DISCONTINUE DEMANDING,
CHARGING, OR COLLECTING ANY SUCH UNJUSTLY DISCRIMINATORY OR PREJUDICIAL
RATE, FARE, OR CHARGE."  SECTION 18:  "THAT EVERY COMMON CARRIER BY
WATER IN INTERSTATE COMMERCE SHALL ESTABLISH, OBSERVE, AND ENFORCE JUST
AND REASONABLE RATES, FARES, CHARGES, CLASSIFICATIONS, AND TARIFFS, AND
JUST AND REASONABLE REGULATIONS AND PRACTICES RELATING THERETO.  ...
WHENEVER THE COMMISSION FINDS THAT ANY RATE, FARE, CHARGE,
CLASSIFICATION, TARIFF, REGULATION, OR PRACTICE, DEMANDED, CHARGED,
COLLECTED, OR OBSERVED BY SUCH CARRIER IS UNJUST OR UNREASONABLE, IT
MAY DETERMINE, PRESCRIBE, AND ORDER ENFORCED A JUST AND REASONABLE
MAXIMUM RATE, FARE, OR CHARGE, OR A JUST AND REASONABLE CLASSIFICATION,
TARIFF, REGULATION, OR PRACTICE."  C. 451, 39 STAT. 735, EX. ORD. NO.
6166, C. 858, 49 STAT. 1987, 2016, 46 U.S.C. SEC. 817. 

MR. JUSTICE ROBERTS: 

I DISSENT.  I PASS THE CONTENTIONS OF THE APPELLANTS RESPECTING THE
POWER OF CONGRESS TO REGULATE THE STATE'S ACTIVITIES UNDER
CONSIDERATION, THE SCOPE OF THE TERM "PERSON" AS USED IN THE SHIPPING
ACT, AND THE ALLEGED ABSENCE OF ANY GRANT OF POWER TO THE COMMISSION TO
FIX MINIMUM RATES FOR WATER CARRIERS OR OTHERS.  THIS FOR THE REASON
THAT, IN MY OPINION, CONGRESS HAS WITHHELD FROM THE COMMISSION
AUTHORITY TO FIX OR REGULATE THE RATES OR CHARGES OF THOSE FURNISHING
WHARFAGE FACILITIES. 

THE SHIPPING ACT OF 1916, IN ALL PARTS HERE RELEVANT, HAS REMAINED AS
IT WAS ORIGINALLY ADOPTED, THOUGH AMENDED IN OTHER RESPECTS BY LATER
LEGISLATION.  IN SEC. 1,  FN1  AFTER DEFINING CARRIERS BY WATER, WHICH
ARE THE PRIMARY SUBJECT OF ITS REGULATORY PROVISIONS, THE ACT ADDS: 

"THE TERM 'OTHER PERSON SUBJECT TO THIS ACT' MEANS ANY PERSON NOT
INCLUDED IN THE TERM 'COMMON CARRIER BY WATER,' CARRYING ON THE
BUSINESS OF FORWARDING OR FURNISHING WHARFAGE, DOCK, WAREHOUSE, OR
OTHER TERMINAL FACILITIES IN CONNECTION WITH A COMMON CARRIER BY
WATER." 


"THAT IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY WATER, OR OTHER
PERSON SUBJECT TO THIS ACT, EITHER ALONE OR IN CONJUNCTION WITH ANY
OTHER PERSON, DIRECTLY OR INDIRECTLY - 

"FIRST.  TO MAKE OR GIVE ANY UNDUE OR UNREASONABLE PREFERENCE OR
ADVANTAGE TO ANY PARTICULAR PERSON, LOCALITY, OR DESCRIPTION OF TRAFFIC
IN ANY RESPECT WHATSOEVER, OR TO SUBJECT ANY PARTICULAR PERSON,
LOCALITY, OR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER." 


"NO COMMON CARRIER BY WATER IN FOREIGN COMMERCE SHALL DEMAND, CHARGE,
OR COLLECT ANY RATE, FARE, OR CHARGE WHICH IS UNJUSTLY DISCRIMINATORY
BETWEEN SHIPPERS OR PORTS, OR UNJUSTLY PREJUDICIAL TO EXPORTERS OF THE
UNITED STATES AS COMPARED WITH THEIR FOREIGN COMPETITIORS.  WHENEVER
THE COMMISSION FINDS THAT ANY SUCH RATE, FARE, OR CHARGE IS DEMANDED,
CHARGED, OR COLLECTED IT MAY ALTER THE SAME TO THE EXTENT NECESSARY TO
CORRECT SUCH UNJUST DISCRIMINATION OR PREJUDICE AND MAKE AN ORDER THAT
THE CARRIER SHALL DISCONTINUE DEMANDING, CHARGING, OR COLLECTING ANY
SUCH UNJUSTLY DISCRIMINATORY OR PREJUDICIAL RATE, FARE, OR CHARGE. 

"EVERY SUCH CARRIER AND EVERY OTHER PERSON SUBJECT TO THIS ACT SHALL
ESTABLISH, OBSERVE, AND ENFORCE JUST AND REASONABLE REGULATIONS AND
PRACTICES RELATING TO OR CONNECTED WITH THE RECEIVING, HANDLING,
STORING, OR DELIVERING OF PROPERTY.  WHENEVER THE COMMISSION FINDS THAT
ANY SUCH REGULATION OR PRACTICE IS UNJUST OR UNREASONABLE IT MAY
DETERMINE, PRESCRIBE, AND ORDER ENFORCED A JUST AND REASONABLE
REGULATION OR PRACTICE." 


"EVERY COMMON CARRIER BY WATER IN INTERSTATE COMMERCE SHALL
ESTABLISH, OBSERVE, AND ENFORCE JUST AND REASONABLE RATES, FARES,
CHARGES, CLASSIFICATIONS, AND TARIFFS, AND JUST AND REASONABLE
REGULATIONS AND PRACTICES RELATING THERETO AND TO THE ISSUANCE, FORM,
AND SUBSTANCE OF TICKETS, RECEIPTS, AND BILLS OF LADING, THE MANNER AND
METHOD OF PRESENTING, MARKING, PACKING, AND DELIVERING PROPERTY FOR
TRANSPORTATION, THE CARRYING OF PERSONAL, SAMPLE, AND EXCESS BAGGAGE,
THE FACILITIES FOR TRANSPORTATION, AND ALL OTHER MATTERS RELATING TO OR
CONNECTED WITH THE RECEIVING, HANDLING, TRANSPORTING, STORING, OR
DELIVERING OF PROPERTY." 

THE COMMISSION CONCEDES, AS IT MUST, THAT WHEREAS THE ACT DEFINITELY
DEALS WITH THE RATES OF WATER CARRIERS, AND PLACES THOSE RATES UNDER
THE REGULATORY JURISDICTION OF THE COMMISSION, IT CONTAINS NO SUCH
SPECIFIC MANDATE TO THE COMMISSION CONCERNING THE RATES OR CHARGES OF
WHARFINGERS.  IT MUST EQUALLY BE CONCEDED THAT THE ORDER OF THE
COMMISSION UNDER REVIEW DOES ESTABLISH MINIMUM RATES AND CHARGES FOR
SERVICES RENDERED BY THOSE MAINTAINING AND OPERATING WHARVES USED BY
WATER CARRIERS.  IN THE ABSENCE OF SPECIFIC AUTHORITY IN THIS BEHALF,
THE COMMISSION TURNED TO THAT PORTION OF SEC. 16 WHICH PROHIBITS NOT
ONLY WATER CARRIERS BUT OTHER PERSONS SUBJECT TO THE ACT FROM GRANTING
PREFERENCES OR PRACTICING DISCRIMINATION, AND THAT PORTION OF SEC. 17
WHICH COMPREHENDS BOTH WATER CARRIERS AND OTHER PERSONS SUBJECT TO THE
ACT AND ENJOINS JUST AND REASONABLE REGULATIONS AND PRACTICES
RESPECTING RECEIVING, HANDLING, STORAGE OR DELIVERY OF PROPERTY. 

THE OVERSIMPLIFIED ARGUMENT IN SUPPORT OF THIS POSITION IS THAT A
RATE OR CHARGE IS, IN A BROAD SENSE, A REGULATION OR PRACTICE.  THE
DIFFICULTY WITH THE ARGUMENT IS THAT, IN THE INTERSTATE COMMERCE ACT,
AND ELSEWHERE, CONGRESS HAS ALWAYS SHARPLY DISTINGUISHED, AS IT DID IN
THE PRESENT ACT, BETWEEN RATES AND CHARGES ON THE ONE HAND, AND
REGULATIONS AND PRACTICES ON THE OTHER.  THE LEGISLATIVE HISTORY OF THE
SHIPPING ACT INDICATES THAT CONGRESS WELL UNDERSTOOD THAT STATES AND
MUNICIPALITIES, IN ORDER TO ENCOURAGE THE FLOW OF COMMERCE THROUGH
THEIR PORTS, HAD ESTABLISHED PUBLIC WHARVES AND THAT CONGRESS INTENDED
THAT, AS RESPECTS SUCH PUBLIC FACILITIES, PREFERENCES AND
DISCRIMINATIONS SHOULD NOT BE PERMITTED.  BUT THERE IS NOTHING IN THE
LEGISLATIVE HISTORY TO INDICATE THAT, IN THE TEETH OF THE PLAIN WORDS
OF THE STATUTE AS ENACTED, CONGRESS HAD IN MIND CONFERRING POWER TO
REGULATE THE RATES AND CHARGES FOR SUCH PUBLICLY OWNED FACILITIES; MUCH
LESS THAT IF A STATE OR ITS AGENCY DEEMED IT ADVISABLE AND IN THE
PUBLIC INTEREST TO OPERATE SUCH FACILITIES AT LOW RATES, TO ENCOURAGE
THE FLOW OF COMMERCE THROUGH ITS PORTS, THE COMMISSION COULD PUT A
FLOOR UNDER ITS RATES AND COMPEL IT IN EFFECT TO AID COMPETING PRIVATE
ENTERPRISE. 

LITTLE NEED BE, OR CAN BE, ADDED TO THE CLEARLY EXPRESSED WORDS OF
THE STATUTE.  IT SPEAKS FOR ITSELF, AND I THINK THE COURT OUGHT NOT TO
PERMIT THE USE OF A PROHIBITION AGAINST PRACTICES TO BE AVAILED OF TO
WRITE ADDITIONAL PROVISIONS INTO THE SECTION DEALING WITH RATES AND
CHARGES. 

THE ATTEMPT TO BOLSTER THIS PROCESS, ON THE PART OF THE COMMISSION,
BY REFERENCE TO THE DECISIONS OF THIS COURT SEEMS TO ME FUTILE.  THE
COMMISSION AND THE GOVERNMENT RELY PRINCIPALLY UPON BALTIMORE & OHIO R.
CO. V. UNITED STATES, 305 U.S. 507.  THAT CASE OBVIOUSLY NOT ONLY FAILS
TO SUPPORT THE ORDER BUT SEEMS TO ME TO BE AN AUTHORITY AGAINST IT.
THE CASE AROSE UNDER THE INTERSTATE COMMERCE ACT.  IT DEALT WITH A
PRACTICE OF CARRIERS WHICH WAS TO MAINTAIN WAREHOUSES IN RESPECT OF
WHICH LOW COST STORAGE WAS AFFORDED TO PERSONS WHO WOULD SHIP OVER THE
CARRIER'S LINES.  IN ESSENCE THE PRACTICE OF WAREHOUSING AT SUCH LOW
RATES OPERATED AS A REBATE OR DISCRIMINATION IN THE CARRIER'S
TRANSPORTATION RATE FAVORING ANY SHIPPER WHO WOULD USE THE CARRIER'S
LINES AND DISFAVORING THOSE WHO WOULD NOT, OR COULD NOT, DO SO.  HERE
WE ARE NOT CONCERNED WITH WATER CARRIERS' RATES, FARES OR CHARGES.  THE
COMMISSION'S ORDER IS DIRECTED AT SERVICES RENDERED BY PRIVATELY AND
PUBLICLY OWNED WHARVES, APPLICABLE TO ALL SEEKING TO AVAIL THEMSELVES
OF THE SERVICES WHICH ARE PROFFERED TO ALL ALIKE.  IF ANY
DISCRIMINATION BY THE APPELLANTS AS BETWEEN SHIPPERS WERE POINTED OUT
IT MAY WELL BE THAT THE COMMISSION MIGHT ORDER THE DISCONTINUANCE OF
SUCH DISCRIMINATION.  THAT IS NOT THIS CASE.  THE COMMISSION PURPORTS
TO ORDER THE DISCONTINUANCE OF A DISCRIMINATION BUT, IN REALITY, ORDERS
A RISE IN THE LEVEL OF RATES APPLICABLE WITHOUT DISCRIMINATION TO ALL
THOSE WHO CAN AND DO USE THE PROFFERED SERVICES.  ITS ORDER IS A THINLY
VEILED ATTEMPT TO CLOAK A RATE ORDER UNDER THE GUISE OF A REGULATION. 
I THINK IT PLAIN THAT CONGRESS GRANTED NO SUCH POWER. 

I WOULD REVERSE THE JUDGMENT. 

FN1  46 U.S.C. 801. 

FN2  46 U.S.C. 815. 

FN3  46 U.S.C. 816. 

FN4  46 U.S.C. 817. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE MURPHY JOIN
IN THIS DISSENT. 
..END :






















POWER COMM'N V. HOPE GAS CO., 320 U.S. 591 


ARGUED OCTOBER 20, 21, 1943.  - DECIDED JANUARY 3, 1944.  - 134 F.2D
287, REVERSED. 


1.  THE VALIDITY OF AN ORDER OF THE FEDERAL POWER COMMISSION FIXING
RATES UNDER THE NATURAL GAS ACT IS TO BE DETERMINED ON JUDICIAL REVIEW
BY WHETHER THE IMPACT OR TOTAL EFFECT OF THE ORDER IS JUST AND
REASONABLE RATHER THAN BY THE METHOD OF COMPUTING THE RATE BASE.  P.
602. 

2.  ONE WHO SEEKS TO HAVE SET ASIDE AN ORDER OF THE FEDERAL POWER
COMMISSION FIXING RATES UNDER THE NATURAL GAS ACT HAS THE BURDEN OF
SHOWING CONVINCINGLY THAT IT IS UNJUST AND UNREASONABLE IN ITS
CONSEQUENCES.  P. 602. 

3.  AN ORDER OF THE FEDERAL POWER COMMISSION REDUCING RESPONDENT'S
RATES FOR SALES OF NATURAL GAS IN INTERSTATE COMMERCE, HELD VALID UNDER
THE NATURAL GAS ACT.  P. 603. 

THE RATE BASE DETERMINED BY THE COMMISSION WAS FOUND BY IT TO BE THE
"ACTUAL LEGITIMATE COST" OF THE COMPANY'S INTERSTATE PROPERTY, LESS
DEPLETION AND DEPRECIATION, PLUS ALLOWANCES FOR UNOPERATED ACREAGE,
WORKING CAPITAL, AND FUTURE NET CAPITAL ADDITIONS.  "REPRODUCTION COST
NEW" AND "TRENDED ORIGINAL COST" WERE GIVEN NO WEIGHT.  ACCRUED
DEPLETION AND DEPRECIATION AND THE ANNUAL ALLOWANCE FOR DEPLETION AND
DEPRECIATION WERE DETERMINED BY APPLICATION OF THE "ECONOMIC-SERVICE
LIFE" METHOD TO "ACTUAL LEGITIMATE COST." 

4.  CONSIDERING THE AMOUNT OF THE ANNUAL RETURN WHICH THE COMPANY
WOULD BE PERMITTED TO EARN ON ITS PROPERTY IN INTERSTATE SERVICE, AND
THE VARIOUS FACTORS WHICH THAT RETURN REFLECTS, THIS COURT IS UNABLE TO
SAY THAT THE RATES FIXED BY THE COMMISSION ARE NOT "JUST AND
REASONABLE" UNDER THE ACT.  P. 604. 

5.  RATES WHICH ENABLE A NATURAL GAS COMPANY TO OPERATE SUCCESSFULLY,
TO MAINTAIN ITS FINANCIAL INTEGRITY, TO ATTRACT CAPITAL, AND TO
COMPENSATE ITS INVESTORS FOR THE RISKS ASSUMED CAN NOT BE CONDEMNED AS
UNJUST AND UNREASONABLE UNDER THE NATURAL GAS ACT, EVEN THOUGH THEY
MIGHT PRODUCE ONLY A MEAGER RETURN ON A RATE BASE COMPUTED ON THE
"PRESENT FAIR VALUE" METHOD.  P. 605. 

6.  THE RATIONALE OF THE DECISION RENDERS IT UNNECESSARY TO DETERMINE
WHETHER THE COMMISSION'S EXCLUSION FROM THE RATE BASE OF WELL-DRILLING
AND OTHER COSTS, PREVIOUSLY CHARGED TO OPERATING EXPENSES, WAS
CONSISTENT WITH THE "PRUDENT INVESTMENT" THEORY AS DEVELOPED AND
APPLIED IN PARTICULAR CASES.  P. 605. 

7.  UNITED RAILWAYS CO. V. WEST, 280 U.S. 234, SO FAR AS IT REJECTS
COST AS THE BASIS OF DEPRECIATION ALLOWANCES, IS DISAPPROVED.  P. 606. 

8.  THE REQUIREMENTS OF THE CONSTITUTION IN RESPECT OF RATES ARE NOT
MORE EXACTING THAN THE STANDARDS OF THE ACT; AND A RATE ORDER VALID
UNDER THE LATTER IS CONSISTENT WITH THE FORMER.  P. 607. 

9.  IN FIXING "JUST AND REASONABLE" RATES UNDER SECS. 4 AND 5 OF THE
NATURAL GAS ACT, FOR NATURAL GAS SOLD IN INTERSTATE COMMERCE BY A
PRIVATE OPERATOR THROUGH AN ESTABLISHED DISTRIBUTION SYSTEM, THE
COMMISSION WAS NOT REQUIRED TO TAKE INTO CONSIDERATION THE INDIRECT
BENEFITS - AFFECTING THE ECONOMY, CONSERVATION POLICIES, AND TAX
REVENUES - WHICH THE PRODUCING STATE MIGHT DERIVE FROM HIGHER
VALUATIONS AND RATES.  P. 609. 

10.  THE SUGGESTION THAT THE COMMISSION DID NOT ALLOW FOR GAS
PRODUCTION A RETURN SUFFICIENT TO INDUCE PRIVATE ENTERPRISE TO PERFORM
COMPLETELY AND EFFICIENTLY ITS FUNCTIONS FOR THE PUBLIC IS
UNSUPPORTED.  P. 615. 

11.  THE COMMISSION IS NOT EMPOWERED BY THE PROVISIONS OF SECS. 4 AND
5, WHICH AUTHORIZE IT TO FIX "JUST AND REASONABLE" RATES, TO FIX RATES
CALCULATED TO DISCOURAGE INTRASTATE RESALES FOR INDUSTRIAL USE.  P.
616. 

12.  THE QUESTION WHETHER THE RATES CHARGED BY THE COMPANY
DISCRIMINATE AGAINST DOMESTIC USERS AND IN FAVOR OF INDUSTRIAL USERS IS
NOT PRESENTED.  P. 617. 

13.  FINDINGS OF THE COMMISSION AS TO THE LAWFULNESS OF PAST RATES,
HELD NOT REVIEWABLE UNDER SEC. 19(B) OF THE ACT.  P. 618. 

FEDERAL POWER COMMISSION ET AL. V. HOPE NATURAL GAS CO. 

NO. 34.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT* . 

*TOGETHER WITH NO. 35, CITY OF CLEVELAND V. HOPE NATURAL GAS CO.,
ALSO ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
FOURTH CIRCUIT. 

CERTIORARI, 319 U.S. 735, TO REVIEW A DECREE SETTING ASIDE AN ORDER
OF THE FEDERAL POWER COMMISSION, 44 P.U.R. (N.S.)  1, UNDER THE NATURAL
GAS ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE PRIMARY ISSUE IN THESE CASES CONCERNS THE VALIDITY UNDER THE
NATURAL GAS ACT OF 1938(52 STAT. 821, 15 U.S.C. SEC. 717) OF A RATE
ORDER ISSUED BY THE FEDERAL POWER COMMISSION REDUCING THE RATES
CHARGEABLE BY HOPE NATURAL GAS CO., 44 P.U.R. (N.S.)  1.  ON A PETITION
FOR REVIEW OF THE ORDER MADE PURSUANT TO SEC. 19(B) OF THE ACT, THE
CIRCUIT COURT OF APPEALS SET IT ASIDE, ONE JUDGE DISSENTING.  134 F.2D
287.  THE CASES ARE HERE ON PETITIONS FOR WRITS OF CERTIORARI WHICH WE
GRANTED BECAUSE OF THE PUBLIC IMPORTANCE OF THE QUESTIONS PRESENTED. 

HOPE IS A WEST VIRGINIA CORPORATION ORGANIZED IN 1898.  IT IS A
WHOLLY OWNED SUBSIDIARY OF STANDARD OIL CO. (N.J.).  SINCE THE DATE OF
ITS ORGANIZATION, IT HAS BEEN IN THE BUSINESS OF PRODUCING, PURCHASING
AND MARKETING NATURAL GAS IN THAT STATE.  FN1  IT SELLS SOME OF THAT
GAS TO LOCAL CONSUMERS IN WEST VIRGINIA.  BUT THE GREAT BULK OF IT GOES
TO FIVE CUSTOMER COMPANIES WHICH RECEIVE IT AT THE WEST VIRGINIA LINE
AND DISTRIBUTE IT IN OHIO AND IN PENNSYLVANIA.  FN2  IN JULY 1938 THE
CITIES OF CLEVELAND AND AKRON FILED COMPLAINTS WITH THE COMMISSION
CHARGING THAT THE RATES COLLECTED BY HOPE FROM EAST OHIO GAS CO. (AN
AFFILIATE OF HOPE WHICH DISTRIBUTES GAS IN OHIO) WERE EXCESSIVE AND
UNREASONABLE.  LATER IN 1938 THE COMMISSION ON ITS OWN MOTION
INSTITUTED AN INVESTIGATION TO DETERMINE THE REASONABLENESS OF ALL OF
HOPE'S INTERSTATE RATES.  IN MARCH 1939 THE PUBLIC UTILITY COMMISSION
OF PENNSYLVANIA FILED A COMPLAINT WITH THE COMMISSION CHARGING THAT THE
RATES COLLECTED BY HOPE FROM PEOPLES NATURAL GAS.  CO. (AN AFFILIATE OF
HOPE DISTRIBUTING GAS IN PENNSYLVANIA) AND TWO NON-AFFILIATED COMPANIES
WERE UNREASONABLE.  THE CITY OF CLEVELAND ASKED THAT THE CHALLENGED
RATES BE DECLARED UNLAWFUL AND THAT JUST AND REASONABLE RATES BE
DETERMINED FROM JUNE 30, 1939 TO THE DATE OF THE COMMISSION'S ORDER. 
THE LATTER FINDING WAS REQUESTED IN AID OF STATE REGULATION AND TO
AFFORD THE PUBLIC UTILITIES COMMISSION OF OHIO A PROPER BASIS FOR
DISPOSITION OF A FUND COLLECTED BY EAST OHIO UNDER BOND FROM OHIO
CONSUMERS SINCE JUNE 30, 1939.  THE CASES WERE CONSOLIDATED AND
HEARINGS WERE HELD. 

ON MAY 26, 1942, THE COMMISSION ENTERED ITS ORDER AND MADE ITS
FINDINGS.  ITS ORDER REQUIRED HOPE TO DECREASE ITS FUTURE INTERSTATE
RATES SO AS TO REFLECT A REDUCTION, ON AN ANNUAL BASIS, OF NOT LESS
THAN $3,609,857 IN OPERATING REVENUES.  AND IT ESTABLISHED "JUST AND
REASONABLE" AVERAGE RATES PER M.C.F. FOR EACH OF THE FIVE CUSTOMER
COMPANIES.  FN3  IN RESPONSE TO THE PRAYER OF THE CITY OF CLEVELAND THE
COMMISSION ALSO MADE FINDINGS AS TO THE LAWFULNESS OF PAST RATES,
ALTHOUGH CONCEDEDLY IT HAD NO AUTHORITY UNDER THE ACT TO FIX PAST RATES
OR TO AWARD REPARATIONS.  44 P.U.R. (N.S.)  P. 34.  IT FOUND THAT THE
RATES COLLECTED BY HOPE FROM EAST OHIO WERE UNJUST, UNREASONABLE,
EXCESSIVE AND THEREFORE UNLAWFUL, BY $830,892 DURING 1939, $3,219,551
DURING 1940, AND $2,815,789 ON AN ANNUAL BASIS SINCE 1940.  IT FURTHER
FOUND THAT JUST, REASONABLE, AND LAWFUL RATES FOR GAS SOLD BY HOPE TO
EAST OHIO FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION WERE THOSE
REQUIRED TO PRODUCE $11,528,608 FOR 1939, $11,507,185 FOR 1940 AND
$11,910,947 ANNUALLY SINCE 1940. 

THE COMMISSION ESTABLISHED AN INTERSTATE RATE BASE OF $33,712,526
WHICH, IT FOUND, REPRESENTED THE "ACTUAL LEGITIMATE COST" OF THE
COMPANY'S INTERSTATE PROPERTY LESS DEPLETION AND DEPRECIATION AND PLUS
UNOPERATED ACREAGE, WORKING CAPITAL AND FUTURE NET CAPITAL ADDITIONS. 
THE COMMISSION, BEGINNING WITH BOOK COST, MADE CERTAIN ADJUSTMENTS NOT
NECESSARY TO RELATE HERE AND FOUND THE "ACTUAL LEGITIMATE COST" OF THE
PLANT IN INTERSTATE SERVICE TO BE $51,957,416, AS OF DECEMBER 31,
1940.  IT DEDUCTED ACCRUED DEPLETION AND DEPRECIATION, WHICH IT FOUND
TO BE $22,328,016 ON AN "ECONOMIC-SERVICE-LIFE" BASIS.  AND IT ADDED
$1,392,021 FOR FUTURE NET CAPITAL ADDITIONS, $566,105 FOR USEFUL
UNOPERATED ACREAGE, AND $2,125,000 FOR WORKING CAPITAL.  IT USED 1940
AS A TEST YEAR TO ESTIMATE FUTURE REVENUES AND EXPENSES.  IT ALLOWED
OVER $16,000,000 AS ANNUAL OPERATING EXPENSES - ABOUT $1,300,000 FOR
TAXES, $1,460,000 FOR DEPLETION AND DEPRECIATION, $600,000 FOR
EXPLORATION AND DEVELOPMENT COSTS, $8,500,000 FOR GAS PURCHASED.  THE
COMMISSION ALLOWED A NET INCREASE OF $421,160 OVER 1940 OPERATING
EXPENSES, WHICH AMOUNT WAS TO TAKE CARE OF FUTURE INCREASE IN WAGES, IN
WEST VIRGINIA PROPERTY TAXES, AND IN EXPLORATION AND DEVELOPMENT
COSTS.  THE TOTAL AMOUNT OF DEDUCTIONS ALLOWED FROM INTERSTATE REVENUES
WAS $13,495,584. 

HOPE INTRODUCED EVIDENCE FROM WHICH IT ESTIMATED REPRODUCTION COST OF
THE PROPERTY AT $97,000,000.  IT ALSO PRESENTED A SO-CALLED TRENDED
"ORIGINAL COST" ESTIMATE WHICH EXCEEDED $105,000,000.  THE LATTER WAS
DESIGNED "TO INDICATE WHAT THE ORIGINAL COST OF THE PROPERTY WOULD HAVE
BEEN IF 1938 MATERIAL AND LABOR PRICES HAD PREVAILED THROUGHOUT THE
WHOLE PERIOD OF THE PIECEMEAL CONSTRUCTION OF THE COMPANY'S PROPERTY
SINCE 1898."  44 P.U.R. (N.S.), PP. 8-9.  HOPE ESTIMATED BY THE "PER
CENT CONDITION" METHOD ACCRUED DEPRECIATION AT ABOUT 35% OF
REPRODUCTION COST NEW.  ON THAT BASIS HOPE CONTENDED FOR A RATE BASE OF
$66,000,000.  THE COMMISSION REFUSED TO PLACE ANY RELIANCE ON
REPRODUCTION COST NEW, SAYING THAT IT WAS "NOT PREDICATED UPON FACTS"
AND WAS "TOO CONJECTURAL AND ILLUSORY TO BE GIVEN ANY WEIGHT IN THESE
PROCEEDINGS."  ID., P. 8.  IT LIKEWISE REFUSED TO GIVE ANY "PROBATIVE
VALUE" TO TRENDED "ORIGINAL COST" SINCE IT WAS "NOT FOUNDED IN FACT"
BUT WAS "BASICALLY ERRONEOUS" AND PRODUCED "IRRATIONAL RESULTS."  ID.,
P. 9.  IN DETERMINING THE AMOUNT OF ACCRUED DEPLETION AND DEPRECIATION
THE COMMISSION, FOLLOWING LINDHEIMER V. ILLINOIS BELL TEL. CO., 292
U.S. 151, 167-169; FEDERAL POWER COMMISSION V. NATURAL GAS PIPELINE
CO., 315 U.S. 575, 592-593, BASED ITS COMPUTATION ON "ACTUAL LEGITIMATE
COST."  IT FOUND THAT HOPE DURING THE YEARS WHEN ITS BUSINESS WAS NOT
UNDER REGULATION DID NOT OBSERVE "SOUND DEPRECIATION AND DEPLETION
PRACTICES" BUT "ACTUALLY ACCUMULATED AN EXCESSIVE RESERVE"  FN4  OF
ABOUT $46,000,000.  ID., P. 18.  ONE MEMBER OF THE COMMISSION THOUGHT
THAT THE ENTIRE AMOUNT OF THE RESERVE SHOULD BE DEDUCTED FROM "ACTUAL
LEGITIMATE COST" IN DETERMINING THE RATE BASE.  FN5  THE MAJORITY OF
THE COMMISSION CONCLUDED, HOWEVER, THAT WHERE, AS HERE, A BUSINESS IS
BROUGHT UNDER REGULATION FOR THE FIRST TIME AND WHERE INCORRECT
DEPRECIATION AND DEPLETION PRACTICES HAVE PREVAILED, THE DEDUCTION OF
THE RESERVE REQUIREMENT (ACTUAL EXISTING DEPRECIATION AND DEPLETION)
RATHER THAN THE EXCESSIVE RESERVE SHOULD BE MADE SO AS TO LAY "A SOUND
BASIS FOR FUTURE REGULATION AND CONTROL OF RATES."  ID., P. 18.  AS WE
HAVE POINTED OUT, IT DETERMINED ACCRUED DEPLETION AND DEPRECIATION TO
BE $22,328,016; AND IT ALLOWED APPROXIMATELY $1,460,000 AS THE ANNUAL
OPERATING EXPENSE FOR DEPLETION AND DEPRECIATION.  FN6 

HOPE'S ESTIMATE OF ORIGINAL COST WAS ABOUT $69,735,000 -
APPROXIMATELY $17,000,000 MORE THAN THE AMOUNT FOUND BY THE
COMMISSION.  THE ITEM OF $17,000,000 WAS MADE UP LARGELY OF
EXPENDITURES WHICH PRIOR TO DECEMBER 31, 1938, WERE CHARGED TO
OPERATING EXPENSES.  CHIEF AMONG THOSE EXPENDITURES WAS SOME
$12,600,000 EXPENDED IN WELL-DRILLING PRIOR TO 1923.  MOST OF THAT SUM
WAS EXPENDED BY HOPE FOR LABOR, USE OF DRILLING-RIGS, HAULING, AND
SIMILAR COSTS OF WELL-DRILLING.  PRIOR TO 1923 HOPE FOLLOWED THE
GENERAL PRACTICE OF THE NATURAL GAS INDUSTRY AND CHARGED THE COST OF
DRILLING WELLS TO OPERATING EXPENSES.  HOPE CONTINUED THAT PRACTICE
UNTIL THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA IN 1923 REQUIRED
IT TO CAPITALIZE SUCH EXPENDITURES, AS DOES THE COMMISSION UNDER ITS
PRESENT UNIFORM SYSTEM OF ACCOUNTS.  FN7  THE COMMISSION REFUSED TO ADD
SUCH ITEMS TO THE RATE BASE STATING THAT "NO GREATER INJUSTICE TO
CONSUMERS COULD BE DONE THAN TO ALLOW ITEMS AS OPERATING EXPENSES AND
AT A LATER DATE INCLUDE THEM IN THE RATE BASE, THEREBY PLACING MULTIPLE
CHARGES UPON THE CONSUMERS."  ID., P. 12.  FOR THE SAME REASON THE
COMMISSION EXCLUDED FROM THE RATE BASE ABOUT $1,600,000 OF EXPENDITURES
ON PROPERTIES WHICH HOPE ACQUIRED FROM OTHER UTILITIES, THE LATTER
HAVING CHARGED THOSE PAYMENTS TO OPERATING EXPENSES.  THE COMMISSION
DISALLOWED CERTAIN OTHER OVERHEAD ITEMS AMOUNTING TO OVER $3,000,000
WHICH ALSO HAD BEEN PREVIOUSLY CHARGED TO OPERATING EXPENSES.  AND IT
REFUSED TO ADD SOME $632,000 AS INTEREST DURING CONSTRUCTION SINCE NO
INTEREST WAS IN FACT PAID. 

HOPE CONTENDED THAT IT SHOULD BE ALLOWED A RETURN OF NOT LESS THAN
8%.  THE COMMISSION FOUND THAT AN 8% RETURN WOULD BE UNREASONABLE BUT
THAT 6 1/2% WAS A FAIR RATE OF RETURN.  THAT RATE OF RETURN, APPLIED TO
THE RATE BASE OF $33,712,526, WOULD PRODUCE $2,191,314 ANNUALLY, AS
COMPARED WITH THE PRESENT INCOME OF NOT LESS THAN $5,801,171. 

THE CIRCUIT COURT OF APPEALS SET ASIDE THE ORDER OF THE COMMISSION
FOR THE FOLLOWING REASONS.  (1) IT HELD THAT THE RATE BASE SHOULD
REFLECT THE "PRESENT FAIR VALUE" OF THE PROPERTY, THAT THE COMMISSION
IN DETERMINING THE "VALUE" SHOULD HAVE CONSIDERED REPRODUCTION COST AND
TRENDED ORIGINAL COST, AND THAT "ACTUAL LEGITIMATE COST" (PRUDENT
INVESTMENT) WAS NOT THE PROPER MEASURE OF "FAIR VALUE" WHERE PRICE
LEVELS HAD CHANGED SINCE THE INVESTMENT.  (2) IT CONCLUDED THAT THE
WELL-DRILLING COSTS AND OVERHEAD ITEMS IN THE AMOUNT OF SOME
$17,000,000 SHOULD HAVE BEEN INCLUDED IN THE RATE BASE.  (3) IT HELD
THAT ACCRUED DEPLETION AND DEPRECIATION AND THE ANNUAL ALLOWANCE FOR
THAT EXPENSE SHOULD BE COMPUTED ON THE BASIS OF "PRESENT FAIR VALUE" OF
THE PROPERTY, NOT ON THE BASIS OF "ACTUAL LEGITIMATE COST." 

THE CIRCUIT COURT OF APPEALS ALSO HELD THAT THE COMMISSION HAD NO
POWER TO MAKE FINDINGS AS TO PAST RATES IN AID OF STATE REGULATION. 
BUT IT CONCLUDED THAT THOSE FINDINGS WERE PROPER AS A STEP IN THE
PROCESS OF FIXING FUTURE RATES.  VIEWED IN THAT LIGHT, HOWEVER, THE
FINDINGS WERE DEEMED TO BE INVALIDATED BY THE SAME ERRORS WHICH
VITIATED THE FINDINGS ON WHICH THE RATE ORDER WAS BASED. 

ORDER REDUCING RATES.  CONGRESS HAS PROVIDED IN SEC. 4(A) OF THE
NATURAL GAS ACT THAT ALL NATURAL GAS RATES SUBJECT TO THE JURISDICTION
OF THE COMMISSION "SHALL BE JUST AND REASONABLE, AND ANY SUCH RATE OR
CHARGE THAT IS NOT JUST AND REASONABLE IS HEREBY DECLARED TO BE
UNLAWFUL."  SEC. 5(A) GIVES THE COMMISSION THE POWER, AFTER HEARING, TO
DETERMINE THE "JUST AND REASONABLE RATE" TO BE THEREAFTER OBSERVED AND
TO FIX THE RATE BY ORDER.  SEC. 5(A) ALSO EMPOWERS THE COMMISSION TO
ORDER A "DECREASE WHERE EXISTING RATES ARE UNJUST,  ...  UNLAWFUL, OR
ARE NOT THE LOWEST REASONABLE RATES."  AND CONGRESS HAS PROVIDED IN
SEC. 19(B) THAT ON REVIEW OF THESE RATE ORDERS THE "FINDING OF THE
COMMISSION AS TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL
BE CONCLUSIVE."  CONGRESS, HOWEVER, HAS PROVIDED NO FORMULA BY WHICH
THE "JUST AND REASONABLE" RATE IS TO BE DETERMINED.  IT HAS NOT FILLED
IN THE DETAILS OF THE GENERAL PRESCRIPTION  FN8  OF SEC. 4(A) AND SEC.
5(A).  IT HAS NOT EXPRESSED IN A SPECIFIC RULE THE FIXED PRINCIPLE OF
"JUST AND REASONABLE." 

WHEN WE SUSTAINED THE CONSTITUTIONALITY OF THE NATURAL GAS ACT IN THE
NATURAL GAS PIPELINE CO. CASE, WE STATED THAT THE "AUTHORITY OF
CONGRESS TO REGULATE THE PRICES OF COMMODITIES IN INTERSTATE COMMERCE
IS AT LEAST AS GREAT UNDER THE FIFTH AMENDMENT AS IS THAT OF THE STATES
UNDER THE FOURTEENTH TO REGULATE THE PRICES OF COMMODITIES IN
INTRASTATE COMMERCE."  315 U.S. P. 582.  RATE-MAKING IS INDEED BUT ONE
SPECIES OF PRICE-FIXING.  MUNN V. ILLINOIS, 94 U.S. 113, 134.  THE
FIXING OF PRICES, LIKE OTHER APPLICATIONS OF THE POLICE POWER, MAY
REDUCE THE VALUE OF THE PROPERTY WHICH IS BEING REGULATED.  BUT THE
FACT THAT THE VALUE IS REDUCED DOES NOT MEAN THAT THE REGULATION IS
INVALID.  BLOCK V. HIRSH, 256 U.S. 135, 155-157; NEBBIA V. NEW YORK,
291 U.S. 502, 523-539 AND CASES CITED.  IT DOES, HOWEVER, INDICATE THAT
"FAIR VALUE" IS THE END PRODUCT OF THE PROCESS OF RATE-MAKING NOT THE
STARTING POINT AS THE CIRCUIT COURT OF APPEALS HELD.  THE HEART OF THE
MATTER IS THAT RATES CANNOT BE MADE TO DEPEND UPON "FAIR VALUE" WHEN
THE VALUE OF THE GOING ENTERPRISE DEPENDS ON EARNINGS UNDER WHATEVER
RATES MAY BE ANTICIPATED.  FN9 

WE HELD IN FEDERAL POWER COMMISSION V. NATURAL GAS PIPELINE CO.,
SUPRA, THAT THE COMMISSION WAS NOT BOUND TO THE USE OF ANY SINGLE
FORMULA OR COMBINATION OF FORMULAE IN DETERMINING RATES.  ITS RATE
MAKING FUNCTION, MOREOVER, INVOLVES THE MAKING OF "PRAGMATIC
ADJUSTMENTS."  ID., P. 586.  AND WHEN THE COMMISSION'S ORDER IS
CHALLENGED IN THE COURTS, THE QUESTION IS WHETHER THAT ORDER "VIEWED IN
ITS ENTIRETY" MEETS THE REQUIREMENTS OF THE ACT.  ID., P. 586.  UNDER
THE STATUTORY STANDARD OF "JUST AND REASONABLE" IT IS THE RESULT
REACHED NOT THE METHOD EMPLOYED WHICH IS CONTROLLING.  CF. LOS ANGELES
GAS & ELECTRIC CORP. V. RAILROAD COMMISSION, 289 U.S. 287, 304-305,
314; WEST OHIO GAS CO. V. PUBLIC UTILITIES COMMISSION (NO. 1), 294 U.S.
63, 70; WEST V. CHESAPEAKE & POTOMAC TEL. CO., 295 U.S. 662, 692
693(DISSENTING OPINION).  IT IS NOT THEORY BUT THE IMPACT OF THE RATE
ORDER WHICH COUNTS.  IF THE TOTAL EFFECT OF THE RATE ORDER CANNOT BE
SAID TO BE UNJUST AND UNREASONABLE, JUDICIAL INQUIRY UNDER THE ACT IS
AT AN END.  THE FACT THAT THE METHOD EMPLOYED TO REACH THAT RESULT MAY
CONTAIN INFIRMITIES IS NOT THEN IMPORTANT.  MOREOVER, THE COMMISSION'S
ORDER DOES NOT BECOME SUSPECT BY REASON OF THE FACT THAT IT IS
CHALLENGED.  IT IS THE PRODUCT OF EXPERT JUDGMENT WHICH CARRIES A
PRESUMPTION OF VALIDITY.  AND HE WHO WOULD UPSET THE RATE ORDER UNDER
THE ACT CARRIES THE HEAVY BURDEN OF MAKING A CONVINCING SHOWING THAT IT
IS INVALID BECAUSE IT IS UNJUST AND UNREASONABLE IN ITS CONSEQUENCES. 
CF. RAILROAD COMMISSION V. CUMBERLAND TEL. & T. CO., 212 U.S. 414;
LINDHEIMER V. ILLINOIS BELL TEL. CO., SUPRA, PP. 164, 169; RAILROAD
COMMISSION V. PACIFIC GAS & ELECTRIC CO., 302 U.S. 388, 401. 

THE RATE-MAKING PROCESS UNDER THE ACT, I.E., THE FIXING OF "JUST AND
REASONABLE" RATES, INVOLVES A BALANCING OF THE INVESTOR AND THE
CONSUMER INTERESTS.  THUS WE STATED IN THE NATURAL GAS PIPELINE CO.
CASE THAT "REGULATION DOES NOT INSURE THAT THE BUSINESS SHALL PRODUCE
NET REVENUES."  315 U.S. P. 590.  BUT SUCH CONSIDERATIONS ASIDE, THE
INVESTOR INTEREST HAS A LEGITIMATE CONCERN WITH THE FINANCIAL INTEGRITY
OF THE COMPANY WHOSE RATES ARE BEING REGULATED.  FROM THE INVESTOR OR
COMPANY POINT OF VIEW IT IS IMPORTANT THAT THERE BE ENOUGH REVENUE NOT
ONLY FOR OPERATING EXPENSES BUT ALSO FOR THE CAPITAL COSTS OF THE
BUSINESS.  THESE INCLUDE SERVICE ON THE DEBT AND DIVIDENDS ON THE
STOCK.  CF. CHICAGO & GRAND TRUNK RY. CO. V. WELLMAN, 143 U.S. 339, 345
346.  BY THAT STANDARD THE RETURN TO THE EQUITY OWNER SHOULD BE
COMMENSURATE WITH RETURNS ON INVESTMENTS IN OTHER ENTERPRISES HAVING
CORRESPONDING RISKS.  THAT RETURN, MOREOVER, SHOULD BE SUFFICIENT TO
ASSURE CONFIDENCE IN THE FINANCIAL INTEGRITY OF THE ENTERPRISE, SO AS
TO MAINTAIN ITS CREDIT AND TO ATTRACT CAPITAL.  SEE MISSOURI EX REL.
SOUTHWESTERN BELL TEL. CO. V. PUBLIC SERVICE COMMISSION, 262 U.S. 276,
291(MR. JUSTICE BRANDEIS CONCURRING).  THE CONDITIONS UNDER WHICH MORE
OR LESS MIGHT BE ALLOWED ARE NOT IMPORTANT HERE.  NOR IS IT IMPORTANT
TO THIS CASE TO DETERMINE THE VARIOUS PERMISSIBLE WAYS IN WHICH ANY
RATE BASE ON WHICH THE RETURN IS COMPUTED MIGHT BE ARRIVED AT.  FOR WE
ARE OF THE VIEW THAT THE END RESULT IN THIS CASE CANNOT BE CONDEMNED
UNDER THE ACT AS UNJUST AND UNREASONABLE FROM THE INVESTOR OR COMPANY
VIEWPOINT. 

WE HAVE ALREADY NOTED THAT HOPE IS A WHOLLY OWNED SUBSIDIARY OF THE
STANDARD OIL CO. (N.J.).  IT HAS NO SECURITIES OUTSTANDING EXCEPT
STOCK.  ALL OF THAT STOCK HAS BEEN OWNED BY STANDARD SINCE 1908.  THE
PAR AMOUNT PRESENTLY OUTSTANDING IS APPROXIMATELY $28,000,000 AS
COMPARED WITH THE RATE BASE OF $33,712,526 ESTABLISHED BY THE
COMMISSION.  OF THE TOTAL OUTSTANDING STOCK $11,000,000 WAS ISSUED IN
STOCK DIVIDENDS.  THE BALANCE, OR ABOUT $17,000,000, WAS ISSUED FOR
CASH OR OTHER ASSETS.  DURING THE FOUR DECADES OF ITS OPERATIONS HOPE
HAS PAID OVER $97,000,000 IN CASH DIVIDENDS.  IT HAD, MOREOVER,
ACCUMULATED BY 1940 AN EARNED SURPLUS OF ABOUT $8,000,000.  IT HAD THUS
EARNED THE TOTAL INVESTMENT IN THE COMPANY NEARLY SEVEN TIMES.  DOWN TO
1940 IT EARNED OVER 20% PER YEAR ON THE AVERAGE ANNUAL AMOUNT OF ITS
CAPITAL STOCK ISSUED FOR CASH OR OTHER ASSETS.  ON AN AVERAGE INVESTED
CAPITAL OF SOME $23,000,000 HOPE'S AVERAGE EARNINGS HAVE BEEN ABOUT 12%
A YEAR.  AND DURING THIS PERIOD IT HAD ACCUMULATED IN ADDITION RESERVES
FOR DEPLETION AND DEPRECIATION OF ABOUT $46,000,000.  FURTHERMORE,
DURING 1939, 1940 AND 1941, HOPE PAID DIVIDENDS OF 10% ON ITS STOCK. 
AND IN THE YEAR 1942, DURING ABOUT HALF OF WHICH THE LOWER RATES WERE
IN EFFECT, IT PAID DIVIDENDS OF 7 1/2%.  FROM 1939-1942 ITS EARNED
SURPLUS INCREASED FROM $5,250,000 TO ABOUT $13,700,000, I.E., TO ALMOST
HALF THE PAR VALUE OF ITS OUTSTANDING STOCK. 

AS WE HAVE NOTED, THE COMMISSION FIXED A RATE OF RETURN WHICH PERMITS
HOPE TO EARN $2,191,314 ANNUALLY.  IN DETERMINING THAT AMOUNT IT
STRESSED THE IMPORTANCE OF MAINTAINING THE FINANCIAL INTEGRITY OF THE
COMPANY.  IT CONSIDERED THE FINANCIAL HISTORY OF HOPE AND A VAST ARRAY
OF DATA BEARING ON THE NATURAL GAS INDUSTRY, RELATED BUSINESSES, AND
GENERAL ECONOMIC CONDITIONS.  IT NOTED THAT THE YIELDS ON BETTER ISSUES
OF BONDS OF NATURAL GAS COMPANIES SOLD IN THE LAST FEW YEARS WERE
"CLOSE TO 3 PER CENT," 44 P.U.R. (N.S.), P. 33.  IT STATED THAT THE
COMPANY WAS A "SEASONED ENTERPRISE WHOSE RISKS HAVE BEEN MINIMIZED" BY
ADEQUATE PROVISIONS FOR DEPLETION AND DEPRECIATION (PAST AND PRESENT)
WITH "CONCURRENT HIGH PROFITS," BY "PROTECTED ESTABLISHED MARKETS,
THROUGH AFFILIATED DISTRIBUTION COMPANIES, IN POPULOUS AND
INDUSTRIALIZED AREAS," AND BY A SUPPLY OF GAS LOCALLY TO MEET ALL
REQUIREMENTS, "EXCEPT ON CERTAIN PEAK DAYS IN THE WINTER, WHICH IT IS
FEASIBLE TO SUPPLEMENT IN THE FUTURE WITH GAS FROM OTHER SOURCES." 
ID., P. 33.  THE COMMISSION CONCLUDED, "THE COMPANY'S EFFICIENT
MANAGEMENT, ESTABLISHED MARKETS, FINANCIAL RECORD, AFFILIATIONS, AND
ITS PROSPECTIVE BUSINESS PLACE IT IN A STRONG POSITION TO ATTRACT
CAPITAL UPON FAVORABLE TERMS WHEN IT IS REQUIRED."  ID., P. 33. 

IN VIEW OF THESE VARIOUS CONSIDERATIONS WE CANNOT SAY THAT AN ANNUAL
RETURN OF $2,191,314 IS NOT "JUST AND REASONABLE" WITHIN THE MEANING OF
THE ACT.  RATES WHICH ENABLE THE COMPANY TO OPERATE SUCCESSFULLY, TO
MAINTAIN ITS FINANCIAL INTEGRITY, TO ATTRACT CAPITAL, AND TO COMPENSATE
ITS INVESTORS FOR THE RISKS ASSUMED CERTAINLY CANNOT BE CONDEMNED AS
INVALID, EVEN THOUGH THEY MIGHT PRODUCE ONLY A MEAGER RETURN ON THE SO
CALLED "FAIR VALUE" RATE BASE.  IN THAT CONNECTION IT WILL BE RECALLED
THAT HOPE CONTENDED FOR A RATE BASE OF $66,000,000 COMPUTED ON
REPRODUCTION COST NEW.  THE COMMISSION POINTS OUT THAT IF THAT RATE
BASE WERE ACCEPTED, HOPE'S AVERAGE RATE OF RETURN FOR THE FOUR-YEAR
PERIOD FROM 1937-1940 WOULD AMOUNT TO 3.27%.  DURING THAT PERIOD HOPE
EARNED AN ANNUAL AVERAGE RETURN OF ABOUT 9% ON THE AVERAGE INVESTMENT. 
IT ASKED FOR NO RATE INCREASES.  ITS PROPERTIES WERE WELL MAINTAINED
AND OPERATED.  AS THE COMMISSION SAYS, SUCH A MODEST RATE OF 3.27%
SUGGESTS AN "INFLATION OF THE BASE ON WHICH THE RATE HAS BEEN
COMPUTED."  DAYTON POWER & LIGHT CO. V. PUBLIC UTILITIES COMMISSION,
292 U.S. 290, 312.  CF. LINDHEIMER V. ILLINOIS BELL TEL. CO., SUPRA, P.
164.  THE INCONGRUITY BETWEEN THE ACTUAL OPERATIONS AND THE RETURN
COMPUTED ON THE BASIS OF REPRODUCTION COST SUGGESTS THAT THE COMMISSION
WAS WHOLLY JUSTIFIED IN REJECTING THE LATTER AS THE MEASURE OF THE RATE
BASE. 

IN VIEW OF THIS DISPOSITION OF THE CONTROVERSY WE NEED NOT STOP TO
INQUIRE WHETHER THE FAILURE OF THE COMMISSION TO ADD THE $17,000,000 OF
WELL-DRILLING AND OTHER COSTS TO THE RATE BASE WAS CONSISTENT WITH THE
PRUDENT INVESTMENT THEORY AS DEVELOPED AND APPLIED IN PARTICULAR
CASES. 

ONLY A WORD NEED BE ADDED RESPECTING DEPLETION AND DEPRECIATION.  WE
HELD IN THE NATURAL GAS PIPELINE CO. CASE THAT THERE WAS NO
CONSTITUTIONAL REQUIREMENT "THAT THE OWNER WHO EMBARKS IN A WASTING
ASSET BUSINESS OF LIMITED LIFE SHALL RECEIVE AT THE END MORE THAN HE
HAS PUT INTO IT."  315 U.S. P. 593.  THE CIRCUIT COURT OF APPEALS DID
NOT THINK THAT THAT RULE WAS APPLICABLE HERE BECAUSE HOPE WAS A UTILITY
REQUIRED TO CONTINUE ITS SERVICE TO THE PUBLIC AND NOT SCHEDULED TO END
ITS BUSINESS ON A DAY CERTAIN AS WAS STIPULATED TO BE TRUE OF THE
NATURAL GAS PIPELINE CO. BUT THAT DISTINCTION IS QUITE IMMATERIAL.  THE
ULTIMATE EXHAUSTION OF THE SUPPLY IS INEVITABLE IN THE CASE OF ALL
NATURAL GAS COMPANIES.  MOREOVER, THIS COURT RECOGNIZED IN LINDHEIMER
V. ILLINOIS BELL TEL. CO., SUPRA, THE PROPRIETY OF BASING ANHUAL
DEPRECIATION ON COST.  FN10  BY SUCH A PROCEDURE THE UTILITY IS MADE
WHOLE AND THE INTEGRITY OF ITS INVESTMENT MAINTAINED.  FN11  NO MORE IS
REQUIRED.  FN12  WE CANNOT APPROVE THE CONTRARY HOLDING OF UNITED
RAILWAYS CO. V. WEST, 280 U.S. 234, 253-254.  SINCE THERE ARE NO
CONSTITUTIONAL REQUIREMENTS MORE EXACTING THAN THE STANDARDS OF THE
ACT, A RATE ORDER WHICH CONFORMS TO THE LATTER DOES NOT RUN AFOUL OF
THE FORMER. 

THE POSITION OF WEST VIRGINIA.  THE STATE OF WEST VIRGINIA, AS WELL
AS ITS PUBLIC SERVICE COMMISSION, INTERVENED IN THE PROCEEDINGS BEFORE
THE COMMISSION AND PARTICIPATED IN THE HEARINGS BEFORE IT.  THEY HAVE
ALSO FILED A BRIEF AMICUS CURIAE HERE AND HAVE PARTICIPATED IN THE
ARGUMENT AT THE BAR.  THEIR CONTENTION IS THAT THE RESULT ACHIEVED BY
THE RATE ORDER "BRINGS CONSEQUENCES WHICH ARE UNJUST TO WEST VIRGINIA
AND ITS CITIZENS" AND WHICH "UNFAIRLY DEPRESS THE VALUE OF GAS, GAS
LANDS AND GAS LEASEHOLDS, UNDULY RESTRICT DEVELOPMENT OF THEIR NATURAL
RESOURCES, AND ARBITRARILY TRANSFER THEIR PROPERTIES TO THE RESIDENTS
OF OTHER STATES WITHOUT JUST COMPENSATION THEREFOR." 

WEST VIRGINIA POINTS OUT THAT THE HOPE NATURAL GAS CO. HOLDS A LARGE
NUMBER OF LEASES ON BOTH PRODUCING AND UNOPERATED PROPERTIES.  THE
OWNER OR GRANTOR RECEIVES FROM THE OPERATOR OR GRANTEE DELAY RENTALS AS
COMPENSATION FOR POSTPONED DRILLING.  WHEN A PRODUCING WELL IS
SUCCESSFULLY BROUGHT IN, THE GAS LEASE CUSTOMARILY CONTINUES
INDEFINITELY FOR THE LIFE OF THE FIELD.  IN THAT CASE THE OPERATOR PAYS
A STIPULATED GAS-WELL RENTAL OR IN SOME CASES A GAS ROYALTY EQUIVALENT
TO ONE-EIGHTH OF THE GAS MARKETED.  FN13  BOTH THE OWNER AND OPERATOR
HAVE VALUABLE PROPERTY INTERESTS IN THE GAS WHICH ARE SEPARATELY
TAXABLE UNDER WEST VIRGINIA LAW.  THE CONTENTION IS THAT THE
REVERSIONARY INTERESTS IN THE LEASEHOLDS SHOULD BE REPRESENTED IN THE
RATE PROCEEDINGS SINCE IT IS THEIR GAS WHICH IS BEING SOLD IN
INTERSTATE COMMERCE.  IT IS ARGUED, MOREOVER, THAT THE OWNERS OF THE
REVERSIONARY INTERESTS SHOULD HAVE THE BENEFIT OF THE "DISCOVERY VALUE"
OF THE GAS LEASEHOLDS, NOT THE INTERSTATE CONSUMERS.  FURTHERMORE, WEST
VIRGINIA CONTENDS THAT THE COMMISSION IN FIXING A RATE FOR NATURAL GAS
PRODUCED IN THAT STATE SHOULD CONSIDER THE EFFECT OF THE RATE ORDER ON
THE ECONOMY OF WEST VIRGINIA.  IT IS POINTED OUT THAT GAS IS A WASTING
ASSET WITH A RAPIDLY DIMINISHING SUPPLY.  AS A RESULT WEST VIRGINIA'S
GAS DEPOSITS ARE BECOMING INCREASINGLY VALUABLE.  NEVERTHELESS THE RATE
FIXED BY THE COMMISSION REDUCES THAT VALUE.  AND THAT REDUCTION, IT IS
SAID, HAS SEVERE REPERCUSSIONS ON THE ECONOMY OF THE STATE.  IT IS
ARGUED IN THE FIRST PLACE THAT AS A RESULT OF THIS RATE REDUCTION
HOPE'S WEST VIRGINIA PROPERTY TAXES MAY BE DECREASED IN VIEW OF THE
RELEVANCE WHICH EARNINGS HAVE UNDER WEST VIRGINIA LAW IN THE ASSESSMENT
OF PROPERTY FOR TAX PURPOSES.  FN14  SECONDLY, IT IS POINTED OUT THAT
WEST VIRGINIA HAS A PRODUCTION TAX  FN15 ON THE "VALUE" OF THE GAS
EXPORTED FROM THE STATE.  AND WE ARE TOLD THAT FOR PURPOSES OF THAT TAX
"VALUE" BECOMES UNDER WEST VIRGINIA LAW "PRACTICALLY THE SUBSTANTIAL
EQUIVALENT OF MARKET VALUE."  THUS WEST VIRGINIA ARGUES THAT
UNDERVALUATION OF HOPE'S GAS LEASEHOLDS WILL COST THE STATE MANY
THOUSANDS OF DOLLARS IN TAXES.  THE EFFECT, IT IS URGED, IS TO IMPAIR
WEST VIRGINIA'S TAX STRUCTURE FOR THE BENEFIT OF OHIO AND PENNSYLVANIA
CONSUMERS.  WEST VIRGINIA EMPHASIZES, MOREOVER, ITS DEEP INTEREST IN
THE CONSERVATION OF ITS NATURAL RESOURCES INCLUDING ITS NATURAL GAS. 
IT SAYS THAT A REDUCTION OF THE VALUE OF THESE LEASEHOLD VALUES WILL
JEOPARDIZE THESE CONSERVATION POLICIES IN THREE RESPECTS:  (1)
EXPLORATORY DEVELOPMENT OF NEW FIELDS WILL BE DISCOURAGED; (2)
ABANDONMENT OF LOW-YIELD HIGH-COST MARGINAL WELLS WILL BE HASTENED; AND
(3) SECONDARY RECOVERY OF OIL WILL BE HAMPERED.  FURTHERMORE, WEST
VIRGINIA CONTENDS THAT THE REDUCED VALUATION WILL HARM ONE OF THE GREAT
INDUSTRIES OF THE STATE AND THAT HARM TO THAT INDUSTRY MUST INEVITABLY
AFFECT THE WELFARE OF THE CITIZENS OF THE STATE.  IT IS ALSO POINTED
OUT THAT WEST VIRGINIA HAS A LARGE INTEREST IN COAL AND OIL AS WELL AS
IN GAS AND THAT THESE FORMS OF FUEL ARE COMPETITIVE.  WHEN THE PRICE OF
GAS IS MATERIALLY CHEAPENED, CONSUMERS TURN TO THAT FUEL IN PREFERENCE
TO THE OTHERS.  AS A RESULT THIS LOWERING OF THE PRICE OF NATURAL GAS
WILL HAVE THE EFFECT OF DEPRECIATING THE PRICE OF WEST VIRGINIA COAL
AND OIL. 

WEST VIRGINIA INSISTS THAT IN NEGLECTING THIS ASPECT OF THE PROBLEM
THE COMMISSION FAILED TO PERFORM THE FUNCTION WHICH CONGRESS ENTRUSTED
TO IT AND THAT THE CASE SHOULD BE REMANDED TO THE COMMISSION FOR A
MODIFICATION OF ITS ORDER.  FN16 

WE HAVE CONSIDERED THESE CONTENTIONS AT LENGTH IN VIEW OF THE
EARNESTNESS WITH WHICH THEY HAVE BEEN URGED UPON US.  WE HAVE SEARCHED
THE LEGISLATIVE HISTORY OF THE NATURAL GAS ACT FOR ANY INDICATION THAT
CONGRESS ENTRUSTED TO THE COMMISSION THE VARIOUS CONSIDERATIONS WHICH
WEST VIRGINIA HAS ADVANCED HERE.  AND OUR CONCLUSION IS THAT CONGRESS
DID NOT. 

WE POINTED OUT IN ILLINOIS NATURAL GAS CO. V. PUBLIC SERVICE CO., 314
U.S. 498, 506, THAT THE PURPOSE OF THE NATURAL GAS ACT WAS TO PROVIDE,
"THROUGH THE EXERCISE OF THE NATIONAL POWER OVER INTERSTATE COMMERCE,
AN AGENCY FOR REGULATING THE WHOLESALE DISTRIBUTION TO PUBLIC SERVICE
COMPANIES OF NATURAL GAS MOVING INTERSTATE, WHICH THIS COURT HAD
DECLARED TO BE INTERSTATE COMMERCE NOT SUBJECT TO CERTAIN TYPES OF
STATE REGULATION."  AS STATED IN THE HOUSE REPORT THE "BASIC PURPOSE"
OF THIS LEGISLATION WAS "TO OCCUPY" THE FIELD IN WHICH SUCH CASES AS
MISSOURI V. KANSAS GAS CO., 265 U.S. 298, AND PUBLIC UTILITIES
COMMISSION V. ATTLEBORO STEAM & ELECTRIC CO., 273 U.S. 83, HAD HELD THE
STATES MIGHT NOT ACT.  H. REP. NO. 709, 75TH CONG., 1ST SESS., P. 2. 
IN ACCOMPLISHING THAT PURPOSE THE BILL WAS DESIGNED TO TAKE "NO
AUTHORITY FROM STATE COMMISSIONS" AND WAS "SO DRAWN AS TO COMPLEMENT
AND IN NO MANNER USURP STATE REGULATORY AUTHORITY."  ID., P. 2.  AND
THE FEDERAL POWER COMMISSION WAS GIVEN NO AUTHORITY OVER THE
"PRODUCTION OR GATHERING OF NATURAL GAS."  SEC. 1(B).    THE PRIMARY
AIM OF THIS LEGISLATION WAS TO PROTECT CONSUMERS AGAINST EXPLOITATION
AT THE HANDS OF NATURAL GAS COMPANIES.  DUE TO THE HIATUS IN REGULATION
WHICH RESULTED FROM THE KANSAS GAS CO. CASE AND RELATED DECISIONS STATE
COMMISSIONS FOUND IT DIFFICULT OR IMPOSSIBLE TO DISCOVER WHAT IT COST
INTERSTATE PIPE-LINE COMPANIES TO DELIVER GAS WITHIN THE CONSUMING
STATES; AND THUS THEY WERE THWARTED IN LOCAL REGULATION.  H. REP. NO.
709, SUPRA, P. 3.  MOREOVER, THE INVESTIGATIONS OF THE FEDERAL TRADE
COMMISSION HAD DISCLOSED THAT THE MAJORITY OF THE PIPELINE MILEAGE IN
THE COUNTRY USED TO TRANSPORT NATURAL GAS, TOGETHER WITH AN INCREASING
PERCENTAGE OF THE NATURAL GAS SUPPLY FOR PIPE-LINE TRANSPORTATION, HAD
BEEN ACQUIRED BY A HANDFUL OF HOLDING COMPANIES.  FN17 STATE
COMMISSIONS, INDEPENDENT PRODUCERS, AND COMMUNITIES HAVING OR SEEKING
THE SERVICE WERE GROWING QUITE HELPLESS AGAINST THESE COMBINATIONS. 
FN18  THESE WERE THE TYPES OF PROBLEMS WITH WHICH THOSE PARTICIPATING
IN THE HEARINGS WERE PREOCCUPIED N19.  CONGRESS ADDRESSED ITSELF TO
THOSE SPECIFIC EVILS. 

THE FEDERAL POWER COMMISSION WAS GIVEN BROAD POWERS OF REGULATION. 
THE FIXING OF "JUST AND REASONABLE" RATES (SEC. 4) WITH THE POWERS
ATTENDANT THERETO  FN20  WAS THE HEART OF THE NEW REGULATORY SYSTEM. 
MOREOVER, THE COMMISSION WAS GIVEN CERTAIN AUTHORITY BY SEC. 7(A), ON A
FINDING THAT THE ACTION WAS NECESSARY OR DESIRABLE "IN THE PUBLIC
INTEREST," TO REQUIRE NATURAL GAS COMPANIES TO EXTEND OR IMPROVE THEIR
TRANSPORTATION FACILITIES AND TO SELL GAS TO ANY AUTHORIZED LOCAL
DISTRIBUTOR.  BY SEC. 7(B) IT WAS GIVEN CONTROL OVER THE ABANDONMENT OF
FACILITIES OR OF SERVICE.  AND BY SEC. 7(C), AS ORIGINALLY ENACTED, NO
NATURAL GAS COMPANY COULD UNDERTAKE THE CONSTRUCTION OR EXTENSION OF
ANY FACILITIES FOR THE TRANSPORTATION OF NATURAL GAS TO A MARKET IN
WHICH NATURAL GAS WAS ALREADY BEING SERVED BY ANOTHER COMPANY, OR SELL
ANY NATURAL GAS IN SUCH A MARKET, WITHOUT OBTAINING A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY FROM THE COMMISSION.  IN PASSING ON
SUCH APPLICATIONS FOR CERTIFICATES OF CONVENIENCE AND NECESSITY THE
COMMISSION WAS TOLD BY SEC. 7(C), AS ORIGINALLY ENACTED, THAT IT WAS
"THE INTENTION OF CONGRESS THAT NATURAL GAS SHALL BE SOLD IN INTERSTATE
COMMERCE FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE AT THE LOWEST POSSIBLE
REASONABLE RATE CONSISTENT WITH THE MAINTENANCE OF ADEQUATE SERVICE IN
THE PUBLIC INTEREST."  THE LATTER PROVISION WAS DELETED FROM SEC. 7(C)
WHEN THAT SUBSECTION WAS AMENDED BY THE ACT OF FEBRUARY 7, 1942, 56
STAT. 83.  BY THAT AMENDMENT LIMITED GRANDFATHER RIGHTS WERE GRANTED
COMPANIES DESIRING TO EXTEND THEIR FACILITIES AND SERVICES OVER THE
ROUTES OR WITHIN THE AREA WHICH THEY WERE ALREADY SERVING.  MOREOVER,
SEC. 7(C) WAS BROADENED SO AS TO REQUIRE CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY NOT ONLY WHERE THE EXTENSIONS WERE BEING MADE
TO MARKETS IN WHICH NATURAL GAS WAS ALREADY BEING SOLD BY ANOTHER
COMPANY BUT IN OTHER SITUATIONS AS WELL. 

THESE PROVISIONS WERE PLAINLY DESIGNED TO PROTECT THE CONSUMER
INTERESTS AGAINST EXPLOITATION AT THE HANDS OF PRIVATE NATURAL GAS
COMPANIES.  WHEN IT COMES TO CASES OF ABANDONMENT OR OF EXTENSIONS OF
FACILITIES OR SERVICE, WE MAY ASSUME THAT, APART FROM THE EXPRESS
EXEMPTIONS  FN21 CONTAINED IN SEC. 7, CONSIDERATIONS OF CONSERVATION
ARE MATERIAL TO THE ISSUANCE OF CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY.  BUT THE COMMISSION WAS NOT ASKED HERE FOR A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY UNDER SEC. 7 FOR ANY PROPOSED
CONSTRUCTION OR EXTENSION.  IT WAS FACED WITH A DETERMINATION OF THE
AMOUNT WHICH A PRIVATE OPERATOR SHOULD BE ALLOWED TO EARN FROM THE SALE
OF NATURAL GAS ACROSS STATE LINES THROUGH AN ESTABLISHED DISTRIBUTION
SYSTEM.  SECS. 4 AND 5, NOT SEC. 7, PROVIDE THE STANDARDS FOR THAT
DETERMINATION.  WE CANNOT FIND IN THE WORDS OF THE ACT OR IN ITS
HISTORY THE SLIGHTEST INTIMATION OR SUGGESTION THAT THE EXPLOITATION OF
CONSUMERS BY PRIVATE OPERATORS THROUGH THE MAINTENANCE OF HIGH RATES
SHOULD BE ALLOWED TO CONTINUE PROVIDED THE PRODUCING STATES OBTAIN
INDIRECT BENEFITS FROM IT.  THAT APPARENTLY WAS THE COMMISSION'S VIEW
OF THE MATTER, FOR THE SAME ARGUMENTS ADVANCED HERE WERE PRESENTED TO
THE COMMISSION AND NOT ADOPTED BY IT. 

WE DO NOT MEAN TO SUGGEST THAT CONGRESS WAS UNMINDFUL OF THE
INTERESTS OF THE PRODUCING STATES IN THEIR NATURAL GAS SUPPLIES WHEN IT
DRAFTED THE NATURAL GAS ACT.  AS WE HAVE SAID, THE ACT DOES NOT INTRUDE
ON THE DOMAIN TRADITIONALLY RESERVED FOR CONTROL BY STATE COMMISSIONS;
AND THE FEDERAL POWER COMMISSION WAS GIVEN NO AUTHORITY OVER "THE
PRODUCTION OR GATHERING OF NATURAL GAS."  SEC. 1(B).  IN ADDITION,
CONGRESS RECOGNIZED THE LEGITIMATE INTERESTS OF THE STATES IN THE
CONSERVATION OF NATURAL GAS.  BY SEC. 11 CONGRESS INSTRUCTED THE
COMMISSION TO MAKE REPORTS ON COMPACTS BETWEEN TWO OR MORE STATES
DEALING WITH THE CONSERVATION, PRODUCTION AND TRANSPORTATION OF NATURAL
GAS.  FN22  THE COMMISSION WAS ALSO DIRECTED TO RECOMMEND FURTHER
LEGISLATION APPROPRIATE OR NECESSARY TO CARRY OUT ANY PROPOSED COMPACT
AND "TO AID IN THE CONSERVATION OF NATURALGAS RESOURCES WITHIN THE
UNITED STATES AND IN THE ORDERLY, EQUITABLE, AND ECONOMIC PRODUCTION,
TRANSPORTATION, AND DISTRIBUTION OF NATURAL GAS."  SEC. 11(A).  THUS
CONGRESS WAS QUITE AWARE OF THE INTERESTS OF THE PRODUCING STATES IN
THEIR NATURAL GAS SUPPLIES.  FN23  BUT IT LEFT THE PROTECTION OF THOSE
INTERESTS TO MEASURES OTHER THAN THE MAINTENANCE OF HIGH RATES TO
PRIVATE COMPANIES.  IF THE COMMISSION IS TO BE COMPELLED TO LET THE
STOCKHOLDERS OF NATURAL GAS COMPANIES HAVE A FEAST SO THAT THE
PRODUCING STATES MAY RECEIVE CRUMBS FROM THAT TABLE, THE PRESENT ACT
MUST BE REDESIGNED.  SUCH A PROJECT RAISES QUESTIONS OF POLICY WHICH GO
BEYOND OUR PROVINCE. 

IT IS HARDLY NECESSARY TO ADD THAT A LIMITATION ON THE NET EARNINGS
OF A NATURAL GAS COMPANY FROM ITS INTERSTATE BUSINESS IS NOT A
LIMITATION ON THE POWER OF THE PRODUCING STATE EITHER TO SAFEGUARD ITS
TAX REVENUES FROM THAT INDUSTRY N24 OR TO PROTECT THE INTERESTS OF
THOSE WHO SELL THEIR GAS TO THE INTERSTATE OPERATOR.  FN25  THE RETURN
WHICH THE COMMISSION ALLOWED WAS THE NET RETURN AFTER ALL SUCH
CHARGES. 

IT IS SUGGESTED THAT THE COMMISSION HAS FAILED TO PERFORM ITS DUTY
UNDER THE ACT IN THAT IT HAS NOT ALLOWED A RETURN FOR GAS PRODUCTION
THAT WILL BE ENOUGH TO INDUCE PRIVATE ENTERPRISE TO PERFORM COMPLETELY
AND EFFICIENTLY ITS FUNCTIONS FOR THE PUBLIC.  THE COMMISSION, HOWEVER,
WAS NOT OBLIVIOUS OF THOSE MATTERS.  IT CONSIDERED THEM.  IT ALLOWED,
FOR EXAMPLE, DELAY RENTALS AND EXPLORATION AND DEVELOPMENT COSTS IN
OPERATING EXPENSES.  FN26  NO SERIOUS ATTEMPT HAS BEEN MADE HERE TO
SHOW THAT THEY ARE INADEQUATE.  WE CERTAINLY CANNOT SAY THAT THEY ARE,
UNLESS WE ARE TO SUBSTITUTE OUR OPINIONS FOR THE EXPERT JUDGMENT OF THE
ADMINISTRATORS TO WHOM CONGRESS ENTRUSTED THE DECISION.  MOREOVER, IF
IN LIGHT OF EXPERIENCE THEY TURN OUT TO BE INADEQUATE FOR DEVELOPMENT
OF NEW SOURCES OF SUPPLY, THE DOORS OF THE COMMISSION ARE OPEN FOR
INCREASED ALLOWANCES.  THIS IS NOT AN ORDER FOR ALL TIME.  THE ACT
CONTAINS MACHINERY FOR OBTAINING RATE ADJUSTMENTS.  SEC. 4. 

BUT IT IS SAID THAT THE COMMISSION PLACED TOO LOW A RATE ON GAS FOR
INDUSTRIAL PURPOSES AS COMPARED WITH GAS FOR DOMESTIC PURPOSES AND THAT
INDUSTRIAL USES SHOULD BE DISCOURAGED.  IT SHOULD BE NOTED IN THE FIRST
PLACE THAT THE RATES WHICH THE COMMISSION HAS FIXED ARE HOPE'S
INTERSTATE WHOLESALE RATES TO DISTRIBUTORS, NOT INTERSTATE RATES TO
INDUSTRIAL USERS  FN27  AND DOMESTIC CONSUMERS.  WE HARDLY CAN ASSUME,
IN VIEW OF THE HISTORY OF THE ACT AND ITS PROVISIONS, THAT THE RESALES
INTRASTATE BY THE CUSTOMER COMPANIES WHICH DISTRIBUTE THE GAS TO
ULTIMATE CONSUMERS IN OHIO AND PENNSYLVANIA ARE SUBJECT TO THE RATE
MAKING POWERS OF THE COMMISSION.  FN28  BUT IN ANY EVENT THOSE RATES
ARE NOT IN ISSUE HERE.  MOREOVER, WE FAIL TO FIND IN THE POWER TO FIX
"JUST AND REASONABLE" RATES THE POWER TO FIX RATES WHICH WILL DISALLOW
OR DISCOURAGE RESALES FOR INDUSTRIAL USE.  THE COMMITTEE REPORT STATED
THAT THE ACT PROVIDED "FOR REGULATION ALONG RECOGNIZED AND MORE OR LESS
STANDARDIZED LINES" AND THAT THERE WAS "NOTHING NOVEL IN ITS
PROVISIONS."  H. REP. NO. 709, SUPRA, P. 3.  YET IF WE ARE NOW TO TELL
THE COMMISSION TO FIX THE RATES SO AS TO DISCOURAGE PARTICULAR USES, WE
WOULD INDEED BE INJECTING INTO A RATE CASE A "NOVEL" DOCTRINE WHICH HAS
NO EXPRESS STATUTORY SANCTION.  THE SAME WOULD BE TRUE IF WE WERE TO
HOLD THAT THE WASTING-ASSET NATURE OF THE INDUSTRY REQUIRED THE
MAINTENANCE OF THE LEVEL OF RATES SO THAT NATURAL GAS COMPANIES COULD
MAKE A GREATER PROFIT ON EACH UNIT OF GAS SOLD.  SUCH THEORIES OF RATE
MAKING FOR THIS INDUSTRY MAY OR MAY NOT BE DESIRABLE.  THE DIFFICULTY
IS THAT SEC. 4(A) AND SEC. 5(A) CONTAIN ONLY THE CONVENTIONAL STANDARDS
OF RATE-MAKING FOR NATURAL GAS COMPANIES.  FN29 THE ACT OF FEBRUARY 7,
1942, BY BROADENING SEC. 7 GAVE THE COMMISSION SOME ADDITIONAL
AUTHORITY TO DEAL WITH THE CONSERVATION ASPECTS OF THE PROBLEM.  FN30
BUT SEC. 4(A) AND SEC. 5(A) WERE NOT CHANGED.  IF THE STANDARD OF "JUST
AND REASONABLE" IS TO SANCTION THE MAINTENANCE OF HIGH RATES BY A
NATURAL GAS COMPANY BECAUSE THEY RESTRICT THE USE OF NATURAL GAS FOR
CERTAIN PURPOSES, THE ACT MUST BE FURTHER AMENDED. 

IT IS FINALLY SUGGESTED THAT THE RATES CHARGED BY HOPE ARE
DISCRIMINATORY AS AGAINST DOMESTIC USERS AND IN FAVOR OF INDUSTRIAL
USERS.  THAT CHARGE IS APPARENTLY BASED ON SEC. 4(B) OF THE ACT WHICH
FORBIDS NATURAL GAS COMPANIES FROM MAINTAINING "ANY UNREASONABLE
DIFFERENCE IN RATES, CHARGES, SERVICE, FACILITIES, OR IN ANY OTHER
RESPECT, EITHER AS BETWEEN LOCALITIES OR AS BETWEEN CLASSES OF
SERVICE."  THE POWER OF THE COMMISSION TO ELIMINATE ANY SUCH
UNREASONABLE DIFFERENCES OR DISCRIMINATIONS IS PLAIN.  SEC. 5(A).  THE
COMMISSION, HOWEVER, MADE NO FINDINGS UNDER SEC. 4(B).  ITS FAILURE IN
THAT REGARD WAS NOT CHALLENGED IN THE PETITION TO REVIEW.  AND IT HAS
NOT BEEN RAISED OR ARGUED HERE BY ANY PARTY.  HENCE THE PROBLEM OF
DISCRIMINATION HAS NO PROPER PLACE IN THE PRESENT DECISION.  IT WILL BE
TIME ENOUGH TO PASS ON THAT ISSUE WHEN IT IS PRESENTED TO US.  CONGRESS
HAS ENTRUSTED THE ADMINISTRATION OF THE ACT TO THE COMMISSION, NOT TO
THE COURTS.  APART FROM THE REQUIREMENTS OF JUDICIAL REVIEW IT IS NOT
FOR US TO ADVISE THE COMMISSION HOW TO DISCHARGE ITS FUNCTIONS. 

FINDINGS AS TO THE LAWFULNESS OF PAST RATES.  AS WE HAVE NOTED, THE
COMMISSION MADE CERTAIN FINDINGS AS TO THE LAWFULNESS OF PAST RATES
WHICH HOPE HAD CHARGED ITS INTERSTATE CUSTOMERS.  THOSE FINDINGS WERE
MADE ON THE COMPLAINT OF THE CITY OF CLEVELAND AND IN AID OF STATE
REGULATION.  IT IS CONCEDED THAT UNDER THE ACT THE COMMISSION HAS NO
POWER TO MAKE REPARATION ORDERS.  AND ITS POWER TO FIX RATES ADMITTEDLY
IS LIMITED TO THOSE "TO BE THEREAFTER OBSERVED AND IN FORCE."  SEC.
5(A).  BUT THE COMMISSION MAINTAINS THAT IT HAS THE POWER TO MAKE
FINDINGS AS TO THE LAWFULNESS OF PAST RATES EVEN THOUGH IT HAS NO POWER
TO FIX THOSE RATES.  FN31  HOWEVER THAT MAY BE, WE DO NOT THINK THAT
THESE FINDINGS WERE REVIEWABLE UNDER SEC. 19(B) OF THE ACT.  THAT
REVIEW "OF SUCH ORDER" IN THE CIRCUIT COURT OF APPEALS FOR THE CIRCUIT
WHERE THE NATURAL GAS COMPANY IS LOCATED OR HAS ITS PRINCIPAL PLACE OF
BUSINESS OR IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA.  WE DO NOT THINK THAT THE FINDINGS IN QUESTION FALL WITHIN
THAT CATEGORY. 

THE COURT RECENTLY SUMMARIZED THE VARIOUS TYPES OF ADMINISTRATIVE
ACTION OR DETERMINATION REVIEWABLE AS ORDERS UNDER THE URGENT
DEFICIENCIES ACT OF OCTOBER 22, 1913, 28 U.S.C. SECS. 45, 47A, AND
KINDRED STATUTORY PROVISIONS.  ROCHESTER TELEPHONE CORP. V. UNITED
STATES, 307 U.S. 125.  IT WAS THERE POINTED OUT THAT WHERE "THE ORDER
SOUGHT TO BE REVIEWED DOES NOT OF ITSELF ADVERSELY AFFECT COMPLAINANT
BUT ONLY AFFECTS HIS RIGHTS ADVERSELY ON THE CONTINGENCY OF FUTURE
ADMINISTRATIVE ACTION," IT IS NOT REVIEWABLE.  ID., P. 130.  THE COURT
SAID, "IN VIEW OF TRADITIONAL CONCEPTIONS OF FEDERAL JUDICIAL POWER,
RESORT TO THE COURTS IN THESE SITUATIONS IS EITHER PREMATURE OR WHOLLY
BEYOND THEIR PROVINCE."  ID., P. 130.  AND SEE UNITED STATES V. LOS
ANGELES & SALT LAKE R. CO., 273 U.S. 299, 309, 310; SHANNAHAN V. UNITED
STATES, 303 U.S. 596.  THESE CONSIDERATIONS ARE APPOSITE HERE.  THE
COMMISSION HAS NO AUTHORITY TO ENFORCE THESE FINDINGS.  THEY ARE "THE
EXERCISE SOLELY OF THE FUNCTION OF INVESTIGATION."  UNITED STATES V.
LOS ANGELES & SALT LAKE R. CO., SUPRA, P. 310.  THEY ARE ONLY A
PRELIMINARY, INTERIM STEP TOWARDS POSSIBLE FUTURE ACTION - ACTION NOT
BY THE COMMISSION BUT BY WHOLLY INDEPENDENT AGENCIES.  THE OUTCOME OF
THOSE PROCEEDINGS MAY TURN ON FACTORS OTHER THAN THESE FINDINGS.  THESE
FINDINGS MAY NEVER RESULT IN THE RESPONDENT FEELING THE PINCH OF
ADMINISTRATIVE ACTION.  REVERSED. 

FN1  HOPE PRODUCES ABOUT ONE-THIRD OF ITS ANNUAL GAS REQUIREMENTS AND
PURCHASES THE REST UNDER SOME 300 CONTRACTS. 

FN2  THESE FIVE COMPANIES ARE THE EAST OHIO GAS CO., THE PEOPLES
NATURAL GAS CO., THE RIVER GAS CO., THE FAYETTE COUNTY GAS CO., AND THE
MANUFACTURERS LIGHT & HEAT CO. THE FIRST THREE OF THESE COMPANIES ARE,
LIKE HOPE, SUBSIDIARIES OF STANDARD OIL CO. (N.J.).  EAST OHIO AND
RIVER DISTRIBUTE GAS IN OHIO, THE OTHER THREE IN PENNSYLVANIA.  HOPE'S
APPROXIMATE SALES IN M.C.F. FOR 1940 MAY BE CLASSIFIED AS FOLLOWS: 
LOCAL WEST VIRGINIA SALES ...................  11,000,000 

EAST OHIO ...................................  40,000,000 

PEOPLES .....................................  10,000,000 

RIVER .......................................     400,000 

FAYETTE .....................................     860,000 

MANUFACTURERS ...............................   2,000,000 

HOPE'S NATURAL GAS IS PROCESSED BY HOPE CONSTRUCTION & REFINING CO.,
AN AFFILIATE, FOR THE EXTRACTION OF GASOLINE AND BUTANE.  DOMESTIC COKE
CORP., ANOTHER AFFILIATE, SELLS COKE-OVEN GAS TO HOPE FOR BOILER FUEL. 

FN3  THESE REQUIRED MINIMUM REDUCTIONS OF 7[ PER M.C.F. FROM THE
36.5[ AND 35.5[ RATES PREVIOUSLY CHARGED EAST OHIO AND PEOPLES,
RESPECTIVELY, AND 3[ PER M.C.F. FROM THE 31.5[ RATE PREVIOUSLY CHARGED
FAYETTE AND MANUFACTURERS. 

FN4  THE BOOK RESERVE FOR INTERSTATE PLANT AMOUNTED AT THE END OF
1938 TO ABOUT $18,000,000 MORE THAN THE AMOUNT DETERMINED BY THE
COMMISSION AS THE PROPER RESERVE REQUIREMENT.  THE COMMISSION ALSO
NOTED THAT "TWICE IN THE PAST THE COMPANY HAS TRANSFERRED AMOUNTS
AGGREGATING $7,500,000 FROM THE DEPRECIATION AND DEPLETION RESERVE TO
SURPLUS.  WHEN THESE LATTER ADJUSTMENTS ARE TAKEN INTO ACCOUNT, THE
EXCESS BECOMES $25,500,000, WHICH HAS BEEN EXACTED FROM THE RATEPAYERS
OVER AND ABOVE THE AMOUNT REQUIRED TO COVER THE CONSUMPTION OF PROPERTY
IN THE SERVICE RENDERED AND THUS TO KEEP THE INVESTMENT UNIMPAIRED." 
44 P.U.R. (N.S.), P. 22. 

FN5  THAT CONTENTION WAS BASED ON THE FACT THAT "EVERY SINGLE DOLLAR
IN THE DEPRECIATION AND DEPLETION RESERVES" WAS TAKEN "FROM GROSS
OPERATING REVENUES WHOSE ONLY SOURCE WAS THE AMOUNTS CHARGED CUSTOMERS
IN THE PAST FOR NATURAL GAS.  IT IS, THEREFORE, A FACT THAT THE
DEPRECIATION AND DEPLETION RESERVES HAVE BEEN CONTRIBUTED BY THE
CUSTOMERS AND DO NOT REPRESENT ANY INVESTMENT BY HOPE."  ID., P. 40. 
AND SEE RAILROAD COMMISSION V. CUMBERLAND TEL. & T. CO., 212 U.S. 414,
424-425; 2 BONBRIGHT, VALUATION OF PROPERTY (1937), P. 1139. 

FN6  THE COMMISSION NOTED THAT THE CASE WAS "FREE FROM THE USUAL
COMPLEXITIES INVOLVED IN THE ESTIMATE OF GAS RESERVES BECAUSE THE
GEOLOGISTS FOR THE COMPANY AND THE COMMISSION PRESENTED ESTIMATES OF
THE REMAINING RECOVERABLE GAS RESERVES WHICH WERE ABOUT ONE PER CENT
APART."  44 P.U.R. (N.S.), PP. 19-20. 

THE COMMISSION UTILIZED THE "STRAIGHT-LINE-BASIS" FOR DETERMINING THE
DEPRECIATION AND DEPLETION RESERVE REQUIREMENTS.  IT USED ESTIMATES OF
THE AVERAGE SERVICE LIVES OF THE PROPERTY BY CLASSES BASED IN PART ON
AN INSPECTION OF THE PHYSICAL CONDITION OF THE PROPERTY.  AND STUDIES
WERE MADE OF HOPE'S RETIREMENT EXPERIENCE AND MAINTENANCE POLICIES OVER
THE YEARS.  THE AVERAGE SERVICE LIVES OF THE VARIOUS CLASSES OF
PROPERTY WERE CONVERTED INTO DEPRECIATION RATES AND THEN APPLIED TO THE
COST OF THE PROPERTY TO ASCERTAIN THE PORTION OF THE COST WHICH HAD
EXPIRED IN RENDERING THE SERVICE. 

THE RECORD IN THE PRESENT CASE SHOWS THAT HOPE IS ON THE LOOKOUT FOR
NEW SOURCES OF SUPPLY OF NATURAL GAS AND IS CONTEMPLATING AN EXTENSION
OF ITS PIPE LINE INTO LOUISIANA FOR THAT PURPOSE.  THE COMMISSION
RECOGNIZED IN FIXING THE RATES OF DEPRECIATION THAT MUCH MATERIAL MAY
BE USED AGAIN WHEN VARIOUS PRESENT SOURCES OF GAS SUPPLY ARE EXHAUSTED,
THUS GIVING THAT PROPERTY MORE THAN SCRAP VALUE AT THE END OF ITS
PRESENT USE. 

FN7  SEE UNIFORM SYSTEM OF ACCOUNTS PRESCRIBED FOR NATURAL GAS
COMPANIES EFFECTIVE JANUARY 1, 1940, ACCOUNT NO. 332.1. 

FN8  SEC. 6 OF THE ACT COMES THE CLOSEST TO SUPPLYING ANY DEFINITE
CRITERIA FOR RATE MAKING.  IT PROVIDES IN SUBSECTION (A) THAT, "THE
COMMISSION MAY INVESTIGATE AND ASCERTAIN THE ACTUAL LEGITIMATE COST OF
THE PROPERTY OF EVERY NATURAL-GAS COMPANY, THE DEPRECIATION THEREIN,
AND, WHEN FOUND NECESSARY FOR RATE-MAKING PURPOSES, OTHER FACTS WHICH
BEAR ON THE DETERMINATION OF SUCH COST OR DEPRECIATION AND THE FAIR
VALUE OF SUCH PROPERTY."  SUBSECTION (B) PROVIDES THAT EVERY NATURALGAS
COMPANY ON REQUEST SHALL FILE WITH THE COMMISSION A STATEMENT OF THE
"ORIGINAL COST" OF ITS PROPERTY AND SHALL KEEP THE COMMISSION INFORMED
REGARDING THE "COST" OF ALL ADDITIONS, ETC. 

FN9  WE RECENTLY STATED THAT THE MEANING OF THE WORD "VALUE" IS TO BE
GATHERED "FROM THE PURPOSE FOR WHICH A VALUATION IS BEING MADE.  THUS
THE QUESTION IN A VALUATION FOR RATE MAKING IS HOW MUCH A UTILITY WILL
BE ALLOWED TO EARN.  THE BASIC QUESTION IN A VALUATION FOR
REORGANIZATION PURPOSES IS HOW MUCH THE ENTERPRISE IN ALL PROBABILITY
CAN EARN."  INSTITUTIONAL INVESTORS V. CHICAGO, M., ST. P. & P.R. CO.,
318 U.S. 523, 540. 

FN10  CHIEF JUSTICE HUGHES SAID IN THAT CASE (292 U.S. PP. 168-169):
"IF THE PREDICTIONS OF SERVICE LIFE WERE ENTIRELY ACCURATE AND
RETIREMENTS WERE MADE WHEN AND AS THESE PREDICTIONS WERE PRECISELY
FULFILLED, THE DEPRECIATION RESERVE WOULD REPRESENT THE CONSUMPTION OF
CAPITAL, ON A COST BASIS, ACCORDING TO THE METHOD WHICH SPREADS THAT
LOSS OVER THE RESPECTIVE SERVICE PERIODS.  BUT IF THE AMOUNTS CHARGED
TO OPERATING EXPENSES AND CREDITED TO THE ACCOUNT FOR DEPRECIATION
RESERVE ARE EXCESSIVE, TO THAT EXTENT SUBSCRIBERS FOR THE TELEPHONE
SERVICE ARE REQUIRED TO PROVIDE, IN EFFECT, CAPITAL CONTRIBUTIONS, NOT
TO MAKE GOOD LOSSES INCURRED BY THE UTILITY IN THE SERVICE RENDERED AND
THUS TO KEEP ITS INVESTMENT UNIMPAIRED, BUT TO SECURE ADDITIONAL PLANT
AND EQUIPMENT UPON WHICH THE UTILITY EXPECTS A RETURN." 

FN11  SEE MR. JUSTICE BRANDEIS (DISSENTING) IN UNITED RAILWAYS CO. V.
WEST, 280 U.S. 234, 259-288, FOR AN EXTENDED ANALYSIS OF THE PROBLEM. 

FN12  IT SHOULD BE NOTED THAT THE ACT PROVIDES NO SPECIFIC RULE
GOVERNING DEPLETION AND DEPRECIATION.  SEC. 9(A) MERELY STATES THAT THE
COMMISSION "MAY FROM TIME TO TIME ASCERTAIN AND DETERMINE, AND BY ORDER
FIX, THE PROPER AND ADEQUATE RATES OF DEPRECIATION AND AMORTIZATION OF
THE SEVERAL CLASSES OF PROPERTY OF EACH NATURAL-GAS COMPANY USED OR
USEFUL IN THE PRODUCTION, TRANSPORTATION, OR SALE OF NATURAL GAS." 

FN13  SEE SIMONTON, THE NATURE OF THE INTEREST OF THE GRANTEE UNDER
AN OIL AND GAS LEASE (1918), 25 W. VA. L. QUAR.  295. 

FN14  WEST PENN POWER CO. V. BOARD OF REVIEW, 112 W. VA. 442, 164
S.E. 862. 

FN15  W. VA. REV. CODE OF 1943, CH. 11, ART. 13, SECS. 2A, 3A. 

FN16  WEST VIRGINIA SUGGESTS AS A POSSIBLE SOLUTION (1) THAT A "GOING
CONCERN VALUE" OF THE COMPANY'S TANGIBLE ASSETS BE INCLUDED IN THE RATE
BASE AND (2) THAT THE FAIR MARKET VALUE OF GAS DELIVERED TO CUSTOMERS
BE ADDED TO THE OUTLAY FOR OPERATING EXPENSES AND TAXES. 

FN17  S. DOC. 92, PT. 84-A, CH. XII, FINAL REPORT, FEDERAL TRADE
COMMISSION TO THE SENATE PURSUANT TO S. RES. NO. 83, 70TH CONG., 1ST
SESS. 

FN18  S. DOC. 92, PT. 84-A, CHS.  XII, XIII, OP. CIT., SUPRA, NOTE
17. 

FN19  SEE HEARINGS ON H.R. 11662, SUBCOMMITTEE OF HOUSE COMMITTEE ON
INTERSTATE & FOREIGN COMMERCE, 74TH CONG., 2D SESS.; HEARINGS ON H.R.
4008, HOUSE COMMITTEE ON INTERSTATE & FOREIGN COMMERCE, 75TH CONG., 1ST
SESS. 

FN20  THE POWER TO INVESTIGATE AND ASCERTAIN THE "ACTUAL LEGITIMATE
COST" OF PROPERTY (SEC. 6), THE REQUIREMENT AS TO BOOKS AND RECORDS
(SEC. 8), CONTROL OVER RATES OF DEPRECIATION (SEC. 9), THE REQUIREMENTS
FOR PERIODIC AND SPECIAL REPORTS (SEC. 10), THE BROAD POWERS OF
INVESTIGATION (SEC. 14) ARE AMONG THE CHIEF POWERS SUPPORTING THE RATE
MAKING FUNCTION. 

FN21  APART FROM THE GRANDFATHER CLAUSE CONTAINED IN SEC. 7(C), THERE
IS THE PROVISION OF SEC. 7(F) THAT A NATURAL GAS COMPANY MAY ENLARGE OR
EXTEND ITS FACILITIES WITHIN THE "SERVICE AREA" DETERMINED BY THE
COMMISSION WITHOUT ANY FURTHER AUTHORIZATION. 

FN22  SEE ACT OF JULY 7, 1943, C. 194, 57 STAT. 383, CONTAINING AN
"INTERSTATE COMPACT TO CONSERVE OIL AND GAS" BETWEEN OKLAHOMA, TEXAS,
NEW MEXICO, ILLINOIS, COLORADO, AND KANSAS. 

FN23  AS WE HAVE POINTED OUT, SEC. 7(C) WAS AMENDED BY THE ACT OF
FEBRUARY 7, 1942(56 STAT. 83) SO AS TO REQUIRE CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY NOT ONLY WHERE THE EXTENSIONS WERE BEING MADE
TO MARKETS IN WHICH NATURAL GAS WAS ALREADY BEING SOLD BY ANOTHER
COMPANY BUT TO OTHER SITUATIONS AS WELL.  CONSIDERATIONS OF
CONSERVATION ENTERED INTO THE PROPOSAL TO GIVE THE ACT THAT BROADER
SCOPE.  H. REP. NO. 1290, 77TH CONG., 1ST SESS., PP. 2-3.  AND SEE
ANNUAL REPORT, FEDERAL POWER COMMISSION (1940) PP. 79, 80; BAUM, THE
FEDERAL POWER COMMISSION AND STATE UTILITY REGULATION (1942), P. 261. 

THE BILL AMENDING SEC. 7(C) ORIGINALLY CONTAINED A SUBSECTION (H)
READING AS FOLLOWS:  "NOTHING CONTAINED IN THIS SECTION SHALL BE
CONSTRUED TO AFFECT THE AUTHORITY OF A STATE WITHIN WHICH NATURAL GAS
IS PRODUCED TO AUTHORIZE OR REQUIRE THE CONSTRUCTION OR EXTENSION OF
FACILITIES FOR THE TRANSPORTATION AND SALE OF SUCH GAS WITHIN SUCH
STATE:  PROVIDED, HOWEVER, THAT THE COMMISSION, AFTER A HEARING UPON
COMPLAINT OR UPON ITS OWN MOTION, MAY BY ORDER FORBID ANY INTRASTATE
CONSTRUCTION OR EXTENSION BY ANY NATURAL-GAS COMPANY WHICH IT SHALL
FIND WILL PREVENT SUCH COMPANY FROM RENDERING ADEQUATE SERVICE TO ITS
CUSTOMERS IN INTERSTATE OR FOREIGN COMMERCE IN TERRITORY ALREADY BEING
SERVED."  SEE HEARINGS ON H.R. 5249, HOUSE COMMITTEE ON INTERSTATE &
FOREIGN COMMERCE, 77TH CONG., 1ST SESS., PP. 7, 11, 21, 29, 32-33.  IN
EXPLANATION OF ITS DELETION THE HOUSE COMMITTEE REPORT STATED, PP. 4-5:
"THE INCREASINGLY IMPORTANT PROBLEMS RAISED BY THE DESIRE OF SEVERAL
STATES TO REGULATE THE USE OF THE NATURAL GAS PRODUCED THEREIN IN THE
INTEREST OF CONSUMERS WITHIN SUCH STATES, AS AGAINST THE FEDERAL POWER
TO REGULATE INTERSTATE COMMERCE IN THE INTEREST OF BOTH INTERSTATE AND
INTRASTATE CONSUMERS, ARE DEEMED BY THE COMMITTEE TO WARRANT FURTHER
INTENSIVE STUDY AND PROBABLY A MORE DETAILED AND COMPREHENSIVE PLAN FOR
THE HANDLING THEREOF THAN THAT WHICH WOULD HAVE BEEN PROVIDED BY THE
STRICKEN SUBSECTION." 

FN24  WE HAVE NOTED THAT IN THE ANNUAL OPERATING EXPENSES OF SOME
$16,000,000 THE COMMISSION INCLUDED WEST VIRGINIA AND FEDERAL TAXES. 
AND IN THE NET INCREASE OF $421,160 OVER 1940 OPERATING EXPENSES
ALLOWED BY THE COMMISSION WAS SOME $80,000 FOR INCREASED WEST VIRGINIA
PROPERTY TAXES.  THE ADEQUACY OF THESE AMOUNTS HAS NOT BEEN CHALLENGED
HERE. 

FN25  THE COMMISSION INCLUDED IN THE AGGREGATE ANNUAL OPERATING
EXPENSES WHICH IT ALLOWED SOME $8,500,000 FOR GAS PURCHASED.  IT ALSO
ALLOWED ABOUT $1,400,000 FOR NATURAL GAS PRODUCTION AND ABOUT $600,000
FOR EXPLORATION AND DEVELOPMENT. 

IT IS SUGGESTED, HOWEVER, THAT THE COMMISSION IN ASCERTAINING THE
COST OF HOPE'S NATURAL GAS PRODUCTION PLANT PROCEEDED CONTRARY TO SEC.
1(B) WHICH PROVIDES THAT THE ACT SHALL NOT APPLY TO "THE PRODUCTION OR
GATHERING OF NATURAL GAS."  BUT SUCH VALUATION, LIKE THE PROVISIONS FOR
OPERATING EXPENSES, IS ESSENTIAL TO THE RATE-MAKING FUNCTION AS
CUSTOMARILY PERFORMED IN THIS COUNTRY.  CF. SMITH, THE CONTROL OF POWER
RATES IN THE UNITED STATES AND ENGLAND (1932), 159 THE ANNALS 101. 
INDEED SEC. 14(B) OF THE ACT GIVES THE COMMISSION THE POWER TO
"DETERMINE THE PROPRIETY AND REASONABLENESS OF THE INCLUSION IN
OPERATING EXPENSES, CAPITAL, OR SURPLUS OF ALL DELAY RENTALS OR OTHER
FORMS OF RENTAL OR COMPENSATION FOR UNOPERATED LANDS AND LEASES." 

FN26  SEE NOTE 25, SUPRA. 

FN27  THE COMMISSION HAS EXPRESSED DOUBTS OVER ITS POWER TO FIX RATES
ON "DIRECT SALES TO INDUSTRIES" FROM INTERSTATE PIPELINES AS
DISTINGUISHED FROM "SALES FOR RESALE TO THE INDUSTRIAL CUSTOMERS OF
DISTRIBUTING COMPANIES."  ANNUAL REPORT, FEDERAL POWER COMMISSION
(1940).  P. 11. 

FN28  SEC. 1(B) OF THE ACT PROVIDES:  "THE PROVISIONS OF THIS ACT
SHALL APPLY TO THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE
COMMERCE, TO THE SALE IN INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE
FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL,
OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES ENGAGED IN SUCH
TRANSPORTATION OR SALE, BUT SHALL NOT APPLY TO ANY OTHER TRANSPORTATION
OR SALE OF NATURAL GAS OR TO THE LOCAL DISTRIBUTION OF NATURAL GAS OR
TO THE FACILITIES USED FOR SUCH DISTRIBUTION OR TO THE PRODUCTION OR
GATHERING OF NATURAL GAS."  AND SEE SEC. 2(6), DEFINING A "NATURAL-GAS
COMPANY," AND H. REP. NO. 709, SUPRA, PP. 2, 3. 

FN29  THE WASTING-ASSET CHARACTERISTIC OF THE INDUSTRY WAS RECOGNIZED
PRIOR TO THE ACT AS REQUIRING THE INCLUSION OF A DEPLETION ALLOWANCE
AMONG OPERATING EXPENSES.  SEE COLUMBUS GAS & FUEL CO. V. PUBLIC
UTILITIES COMMISSION, 292 U.S. 398, 404-405.  BUT NO SUCH THEORY OF
RATE-MAKING FOR NATURAL GAS COMPANIES AS IS NOW SUGGESTED EMERGED FROM
THE CASES ARISING DURING THE EARLIER PERIOD OF REGULATION. 

FN30  THE COMMISSION HAS BEEN ALERT TO THE PROBLEMS OF CONSERVATION
IN ITS ADMINISTRATION OF THE ACT.  IT HAS INDEED SUGGESTED THAT IT
MIGHT BE WISE TO RESTRICT THE USE OF NATURAL GAS "BY FUNCTIONS RATHER
THAN BY AREAS."  ANNUAL REPORT (1940) P. 79. 

THE COMMISSION STATED IN THAT CONNECTION THAT NATURAL GAS WAS
PARTICULARLY ADAPTED TO CERTAIN INDUSTRIAL USES.  BUT IT ADDED THAT THE
GENERAL USE OF SUCH GAS "UNDER BOILERS FOR THE PRODUCTION OF STEAM" IS
"UNDER MOST CIRCUMSTANCES OF VERY QUESTIONABLE SOCIAL ECONOMY."  IBID. 

FN31  THE ARGUMENT IS THAT SEC. 4(A) MAKES "UNLAWFUL" THE CHARGING OF
ANY RATE THAT IS NOT JUST AND REASONABLE.  AND SEC. 14(A) GIVES THE
COMMISSION POWER TO INVESTIGATE ANY MATTER "WHICH IT MAY FIND NECESSARY
OR PROPER IN ORDER TO DETERMINE WHETHER ANY PERSON HAS VIOLATED" ANY
PROVISION OF THE ACT.  MOREOVER, SEC. 5(B) GIVES THE COMMISSION POWER
TO INVESTIGATE AND DETERMINE THE COST OF PRODUCTION OR TRANSPORTATION
OF NATURAL GAS IN CASES WHERE IT HAS "NO AUTHORITY TO ESTABLISH A RATE
GOVERNING THE TRANSPORTATION OR SALE OF SUCH NATURAL GAS."  AND SEC.
17(C) DIRECTS THE COMMISSION TO "MAKE AVAILABLE TO THE SEVERAL STATE
COMMISSIONS SUCH INFORMATION AND REPORTS AS MAY BE OF ASSISTANCE IN
STATE REGULATION OF NATURAL-GAS COMPANIES."  FOR A DISCUSSION OF THESE
POINTS BY THE COMMISSION SEE 44 P.U.R. (N.S.)  PP. 34-35.    MR.
JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS
CASE. 

OPINION OF MR. JUSTICE BLACK AND MR. JUSTICE MURPHY: 

WE AGREE WITH THE COURT'S OPINION AND WOULD ADD NOTHING TO WHAT HAS
BEEN SAID BUT FOR WHAT IS PATENTLY A WHOLLY GRATUITOUS ASSERTION AS TO
CONSTITUTIONAL LAW IN THE DISSENT OF MR. JUSTICE FRANKFURTER.  WE REFER
TO THE STATEMENT THAT "CONGRESSIONAL ACQUIESCENCE TO DATE IN THE
DOCTRINE OF CHICAGO, M. & ST. P. RY. CO. V. MINNESOTA, SUPRA, MAY
FAIRLY BE CLAIMED."  THAT WAS THE CASE IN WHICH A MAJORITY OF THIS
COURT WAS FINALLY INDUCED TO EXPAND THE MEANING OF "DUE PROCESS" SO AS
TO GIVE COURTS POWER TO BLOCK EFFORTS OF THE STATE AND NATIONAL
GOVERNMENTS TO REGULATE ECONOMIC AFFAIRS.  THE PRESENT CASE DOES NOT
AFFORD A PROPER OCCASION TO DISCUSS THE SOUNDNESS OF THAT DOCTRINE
BECAUSE, AS STATED IN MR. JUSTICE FRANKFURTER'S DISSENT, "THAT ISSUE IS
NOT HERE IN CONTROVERSY."  THE SALUTARY PRACTICE WHEREBY COURTS DO NOT
DISCUSS ISSUES IN THE ABSTRACT APPLIES WITH PECULIAR FORCE TO
CONSTITUTIONAL QUESTIONS.  SINCE, HOWEVER, THE DISSENT ADVERTS TO A
HIGHLY CONTROVERSIAL DUE PROCESS DOCTRINE AND IMPLIES ITS ACCEPTANCE BY
CONGRESS, WE FEEL COMPELLED TO SAY THAT WE DO NOT UNDERSTAND THAT
CONGRESS VOLUNTARILY HAS ACQUIESCED IN A CONSTITUTIONAL PRINCIPLE OF
GOVERNMENT THAT COURTS, RATHER THAN LEGISLATIVE BODIES, POSSESS FINAL
AUTHORITY OVER REGULATION OF ECONOMIC AFFAIRS.  EVEN THIS COURT HAS NOT
ALWAYS FULLY EMBRACED THAT PRINCIPLE, AND WE WISH TO REPEAT THAT WE
HAVE NEVER ACQUIESCED IN IT, AND DO NOT NOW.  SEE FEDERAL POWER
COMMISSION V. NATURAL GAS PIPELINE CO., 315 U.S. 575, 599-601. 

MR. JUSTICE REED, DISSENTING: 

THIS CASE INVOLVES THE PROBLEM OF RATE MAKING UNDER THE NATURAL GAS
ACT.  ADDED IMPORTANCE ARISES FROM THE OBVIOUS FACT THAT THE PRINCIPLES
STATED ARE GENERALLY APPLICABLE TO ALL FEDERAL AGENCIES WHICH ARE
ENTRUSTED WITH THE DETERMINATION OF RATES FOR UTILITIES.  BECAUSE MY
VIEWS DIFFER SOMEWHAT FROM THOSE OF MY BRETHREN, IT MAY BE OF SOME
VALUE TO SET THEM OUT IN A SUMMARY FORM. 

THE CONGRESS MAY FIX UTILITY RATES IN SITUATIONS SUBJECT TO FEDERAL
CONTROL WITHOUT REGARD TO ANY STANDARD EXCEPT THE CONSTITUTIONAL
STANDARDS OF DUE PROCESS AND FOR TAKING PRIVATE PROPERTY FOR PUBLIC USE
WITHOUT JUST COMPENSATION.  WILSON V. NEW, 243 U.S. 332, 350.  A
COMMISSION, HOWEVER, DOES NOT HAVE THIS FREEDOM OF ACTION.  ITS POWERS
ARE LIMITED NOT ONLY BY THE CONSTITUTIONAL STANDARDS BUT ALSO BY THE
STANDARDS OF THE DELEGATION.  HERE THE STANDARD ADDED BY THE NATURAL
GAS ACT IS THAT THE RATE BE "JUST AND REASONABLE."  FN1  SECTION 6  FN2
THROWS ADDITIONAL LIGHT ON THE MEANING OF THESE WORDS. 

WHEN THE PHRASE WAS USED BY CONGRESS TO DESCRIBE ALLOWABLE RATES, IT
HAD RELATION TO SOMETHING ASCERTAINABLE.  THE RATES WERE NOT LEFT TO
THE WHIM OF THE COMMISSION.  THE RATES FIXED WOULD PRODUCE AN ANNUAL
RETURN AND THAT ANNUAL RETURN WAS TO BE COMPARED WITH A THEORETICAL
JUST AND REASONABLE RETURN, ALL RISKS CONSIDERED, ON THE FAIR VALUE OF
THE PROPERTY USED AND USEFUL IN THE PUBLIC SERVICE AT THE TIME OF THE
DETERMINATION. 

SUCH AN ABSTRACT TEST IS NOT PRECISE.  THE AGENCY CHARGED WITH ITS
DETERMINATION HAS A WIDE RANGE BEFORE IT COULD PROPERLY BE SAID BY A
COURT THAT THE AGENCY HAD DISREGARDED STATUTORY STANDARDS OR HAD
CONFISCATED THE PROPERTY OF THE UTILITY FOR PUBLIC USE.  CF. CHICAGO,
M. & ST. P. RY. CO. V. MINNESOTA, 134 U.S. 418, 461-66, DISSENT.  THIS
IS AS CONGRESS INTENDS.  RATES ARE LEFT TO AN EXPERIENCED AGENCY
PARTICULARLY COMPETENT BY TRAINING TO APPRAISE THE AMOUNT REQUIRED. 

THE DECISION AS TO A REASONABLE RETURN HAD NOT BEEN A SOURCE OF GREAT
DIFFICULTY, FOR BORROWERS AND LENDERS REACHED SUCH AGREEMENTS DAILY IN
A MULTITUDE OF SITUATIONS; AND ALTHOUGH THE DETERMINATION OF FAIR VALUE
HAD BEEN TROUBLESOME, ITS ESSENTIALS HAD BEEN WORKED OUT IN FAIRNESS TO
INVESTOR AND CONSUMER BY THE TIME OF THE ENACTMENT OF THIS ACT.  CF.
LOS ANGELES GAS & ELECTRIC CORP. V. RAILROAD COMMISSION, 289 U.S. 287,
304 ET SEQ. THE RESULTS WERE WELL KNOWN TO CONGRESS AND HAD THAT BODY
DESIRED TO DEPART FROM THE TRADITIONAL CONCEPTS OF FAIR VALUE AND
EARNINGS, IT WOULD HAVE STATED ITS INTENTION PLAINLY.  HELVERING V.
GRIFFITHS, 318 U.S. 371. 

IT WAS ALREADY CLEAR THAT WHEN RATES ARE IN DISPUTE, "EARNINGS
PRODUCED BY RATES DO NOT AFFORD A STANDARD FOR DECISION."  289 U.S. AT
305.  HISTORICAL COST, PRUDENT INVESTMENT AND REPRODUCTION COST  FN3
WERE ALL RELEVANT FACTORS IN DETERMINING FAIR VALUE.  INDEED,
DISREGARDING THE PIONEER INVESTOR'S RISK, IF PRUDENT INVESTMENT AND
REPRODUCTION COST WERE NOT DISTORTED BY CHANGES IN PRICE LEVELS OR
TECHNOLOGY, EACH OF THEM WOULD PRODUCE THE SAME RESULT.  THE
REALIZATION FROM THE RISK OF AN INVESTMENT IN A SPECULATIVE FIELD, SUCH
AS NATURAL GAS UTILITIES, SHOULD BE REFLECTED IN THE PRESENT FAIR
VALUE.  FN4  THE AMOUNT OF EVIDENCE TO BE ADMITTED ON ANY POINT WAS OF
COURSE IN THE AGENCY'S REASONABLE DISCRETION, AND IT WAS FREE TO GIVE
ITS OWN WEIGHT TO THESE OR OTHER FACTORS AND TO DETERMINE FROM ALL THE
EVIDENCE ITS OWN JUDGMENT AS TO THE NECESSARY RATES. 

I AGREE WITH THE COURT IN NOT IMPOSING A RULE OF PRUDENT INVESTMENT
ALONE IN DETERMINING THE RATE BASE.  THIS LEAVES THE COMMISSION FREE,
AS I UNDERSTAND IT, TO USE ANY AVAILABLE EVIDENCE FOR ITS FINDING OF
FAIR VALUE, INCLUDING BOTH PRUDENT INVESTMENT AND THE COST OF
INSTALLING AT THE PRESENT TIME AN EFFICIENT SYSTEM FOR FURNISHING THE
NEEDED UTILITY SERVICE. 

MY DISAGREEMENT WITH THE COURT ARISES PRIMARILY FROM ITS VIEW THAT IT
MAKES NO DIFFERENCE HOW THE COMMISSION REACHED THE RATE FIXED SO LONG
AS THE RESULT IS FAIR AND REASONABLE.  FOR ME THE STATUTORY COMMAND TO
THE COMMISSION IS MORE EXPLICIT.  ENTIRELY ASIDE FROM THE
CONSTITUTIONAL PROBLEM OF WHETHER THE CONGRESS COULD VALIDLY DELEGATE
ITS RATE-MAKING POWER TO THE COMMISSION, IN TOTO AND WITHOUT STANDARDS,
IT DID LEGISLATE IN THE LIGHT OF THE RELATION OF FAIR AND REASONABLE TO
FAIR VALUE AND REASONABLE RETURN.  THE COMMISSION MUST THEREFORE MAKE
ITS FINDINGS IN OBSERVANCE OF THAT RELATIONSHIP. 

THE FEDERAL POWER COMMISSION DID NOT, AS I CONSTRUE THEIR ACTION,
DISREGARD ITS STATUTORY DUTY.  THEY HEARD THE EVIDENCE RELATING TO
HISTORICAL AND REPRODUCTION COST AND TO THE REASONABLE RATE OF RETURN,
AND THEY APPRAISED ITS WEIGHT.  THE EVIDENCE OF REPRODUCTION COST WAS
REJECTED AS UNPERSUASIVE, BUT FROM THE OTHER EVIDENCE THEY FOUND A RATE
BASE, WHICH IS TO ME A DETERMINATION OF FAIR VALUE.  ON THAT BASE THE
EARNINGS ALLOWED SEEM FAIR AND REASONABLE.  SO FAR AS THE COMMISSION
WENT IN APPRAISING THE PROPERTY EMPLOYED IN THE SERVICE, I FIND NOTHING
IN THE RESULT WHICH INDICATES CONFISCATION, UNFAIRNESS OR
UNREASONABLENESS.  GOOD ADMINISTRATION OF RATE-MAKING AGENCIES UNDER
THIS METHOD WOULD AVOID UNDUE DELAY AND RENDER REVALUATIONS UNNECESSARY
EXCEPT AFTER VIOLENT FLUCTUATIONS OF PRICE LEVELS.  RATE MAKING UNDER
THIS METHOD HAS BEEN SUBJECTED TO CRITICISM.  BUT UNTIL CONGRESS
CHANGES THE STANDARDS FOR THE AGENCIES, THESE RATE-MAKING BODIES SHOULD
CONTINUE THE CONVENTIONAL THEORY OF RATE MAKING.  IT WILL PROBABLY BE
SIMPLER TO IMPROVE PRESENT METHODS THAN TO DEVISE NEW ONES. 

BUT A MAJOR ERROR, I THINK, WAS COMMITTED IN THE DISREGARD BY THE
COMMISSION OF THE INVESTMENT IN EXPLORATORY OPERATIONS AND OTHER
RECOGNIZED CAPITAL COSTS.  THESE WERE NOT CONSIDERED BY THE COMMISSION
BECAUSE THEY WERE CHARGED TO OPERATING EXPENSES BY THE COMPANY AT A
TIME WHEN IT WAS UNREGULATED.  CONGRESS DID NOT DIRECT THE COMMISSION
IN RATE MAKING TO DEDUCT FROM THE RATE BASE CAPITAL INVESTMENT WHICH
HAD BEEN RECOVERED DURING THE UNREGULATED PERIOD THROUGH EXCESS
EARNINGS.  IN MY VIEW THIS PART OF THE INVESTMENT SHOULD NO MORE HAVE
BEEN DISREGARDED IN THE RATE BASE THAN ANY OTHER CAPITAL INVESTMENT
WHICH PREVIOUSLY HAD BEEN RECOVERED AND PAID OUT IN DIVIDENDS OR PLACED
TO SURPLUS.  EVEN IF PRUDENT INVESTMENT THROUGHOUT THE LIFE OF THE
PROPERTY IS ACCEPTED AS THE FORMULA FOR FIGURING THE RATE BASE, IT
SEEMS TO ME ILLOGICAL TO THROW OUT THE ADMITTEDLY PRUDENT COST OF PART
OF THE PROPERTY BECAUSE THE EARNINGS IN THE UNREGULATED PERIOD HAD BEEN
SUFFICIENT TO RETURN THE PRUDENT COST TO THE INVESTORS OVER AND ABOVE A
REASONABLE RETURN.  WHAT WOULD THE ANSWER BE UNDER THE THEORY OF THE
COMMISSION AND THE COURT, IF THE ONLY PRUDENT INVESTMENT IN THIS
UTILITY HAD BEEN THE SEVENTEEN MILLION CAPITAL CHARGES WHICH ARE NOW
DISALLOWED? 

FOR THE REASONS HERETOFORE STATED, I SHOULD AFFIRM THE ACTION OF THE
CIRCUIT COURT OF APPEALS IN RETURNING THE PROCEEDING TO THE COMMISSION
FOR FURTHER CONSIDERATION AND SHOULD DIRECT THE COMMISSION TO ACCEPT
THE DISALLOWED CAPITAL INVESTMENT IN DETERMINING THE FAIR VALUE FOR
RATE-MAKING PURPOSES. 

FN1  NATURAL GAS ACT, SEC. 4(A), 52 STAT. 821, 822, 15 U.S.C. SEC.
717(A). 

FN2  52 STAT. 821, 824, 15 U.S.C. SEC. 717E: 

"(A)  THE COMMISSION MAY INVESTIGATE AND ASCERTAIN THE ACTUAL
LEGITIMATE  COST OF THE PROPERTY OF EVERY NATURAL-GAS COMPANY, THE
DEPRECIATION THEREIN, AND, WHEN FOUND NECESSARY FOR RATE-MAKING
PURPOSES, OTHER FACTS WHICH BEAR ON THE DETERMINATION OF SUCH COST OR
DEPRECIATION AND THE FAIR VALUE OF SUCH PROPERTY. 

"(B)  EVERY NATURAL-GAS COMPANY UPON REQUEST SHALL FILE WITH THE
COMMISSION AN INVENTORY OF ALL OR ANY PART OF ITS PROPERTY AND A
STATEMENT OF THE ORIGINAL COST THEREOF, AND SHALL KEEP THE COMMISSION
INFORMED REGARDING THE COST OF ALL ADDITIONS, BETTERMENTS, EXTENSIONS,
AND NEW CONSTRUCTION." 

FN3  "REPRODUCTION COST" HAS BEEN VARIOUSLY DEFINED, BUT FOR RATE
MAKING PURPOSES THE MOST USEFUL SENSE SEEMS TO BE, THE MINIMUM AMOUNT
NECESSARY TO CREATE AT THE TIME OF THE INQUIRY A MODERN PLANT CAPABLE
OF RENDERING EQUIVALENT SERVICE.  SEE I BONBRIGHT, VALUATION OF
PROPERTY (1937) 152.  REPRODUCTION COST AS THE COST OF BUILDING A
REPLICA OF AN OBSOLESCENT PLANT IS NOT OF REAL SIGNIFICANCE. 

"PRUDENT INVESTMENT" IS NOT DEFINED BY THE COURT.  IT MAY MEAN THE
SUM ORIGINALLY PUT IN THE ENTERPRISE, EITHER WITH OR WITHOUT ADDITIONAL
AMOUNTS FROM EXCESS EARNINGS REINVESTED IN THE BUSINESS. 

FN4  IT IS OF NO MORE THAN BOOKKEEPING SIGNIFICANCE WHETHER THE
COMMISSION ALLOWS A RATE OF RETURN COMMENSURATE WITH THE RISK OF THE
ORIGINAL INVESTMENT OR THE LOWER RATE BASED ON CURRENT RISK AND A
CAPITALIZATION REFLECTING THE ESTABLISHED EARNING POWER OF A SUCCESSFUL
COMPANY AND THE PROBABLE COST OF DUPLICATING ITS SERVICES.  CF. A.T. &
T. CO. V. UNITED STATES, 299 U.S. 232.  BUT THE LATTER IS THE
TRADITIONAL METHOD. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

MY BROTHER JACKSON HAS ANALYZED WITH PARTICULARITY THE ECONOMIC AND
SOCIAL ASPECTS OF NATURAL GAS AS WELL AS THE DIFFICULTIES WHICH LED TO
THE ENACTMENT OF THE NATURAL GAS ACT, ESPECIALLY THOSE ARISING OUT OF
THE ABORTIVE ATTEMPTS OF STATES TO REGULATE NATURAL GAS UTILITIES.  THE
NATURAL GAS ACT OF 1938 SHOULD RECEIVE APPLICATION IN THE LIGHT OF THIS
ANALYSIS, AND MR. JUSTICE JACKSON HAS, I BELIEVE, DRAWN RELEVANT
INFERENCES REGARDING THE DUTY OF THE FEDERAL POWER COMMISSION IN FIXING
NATURAL GAS RATES.  HIS EXPOSITION SEEMS TO ME UNANSWERED, AND I SHALL
SAY ONLY A FEW WORDS TO EMPHASIZE MY BASIC AGREEMENT WITH HIM. 

FOR OUR SOCIETY THE NEEDS THAT ARE MET BY PUBLIC UTILITIES ARE AS
TRULY PUBLIC SERVICES AS THE TRADITIONAL GOVERNMENTAL FUNCTIONS OF
POLICE AND JUSTICE.  THEY ARE NOT LESS SO WHEN THESE SERVICES ARE
RENDERED BY PRIVATE ENTERPRISE UNDER GOVERNMENTAL REGULATION.  WHO
ULTIMATELY DETERMINES THE WAYS OF REGULATION, IS THE DECISIVE ASPECT IN
THE PUBLIC SUPERVISION OF PRIVATELY-OWNED UTILITIES.  FORESHADOWED
NEARLY SIXTY YEARS AGO, RAILROAD COMMISSION CASES, 116 U.S. 307, 331,
IT WAS DECIDED MORE THAN FIFTY YEARS AGO THAT THE FINAL SAY UNDER THE
CONSTITUTION LIES WITH THE JUDICIARY AND NOT THE LEGISLATURE.  CHICAGO,
M. & ST. P. RY. CO. V. MINNESOTA, 134 U.S. 418. 

WHILE LEGAL ISSUES TOUCHING THE PROPER DISTRIBUTION OF GOVERNMENTAL
POWERS UNDER THE CONSTITUTION MAY ALWAYS BE RAISED, CONGRESSIONAL
ACQUIESCENCE TO DATE IN THE DOCTRINE OF CHICAGO, M. & ST. P. RY. CO. V.
MINNESOTA, SUPRA, MAY FAIRLY BE CLAIMED.  BUT IN ANY EVENT THAT ISSUE
IS NOT HERE IN CONTROVERSY.  AS POINTED OUT IN THE OPINIONS OF MY
BRETHREN, CONGRESS HAS GIVEN ONLY LIMITED AUTHORITY TO THE FEDERAL
POWER COMMISSION AND MADE THE EXERCISE OF THAT AUTHORITY SUBJECT TO
JUDICIAL REVIEW.  THE COMMISSION IS AUTHORIZED TO FIX RATES CHARGEABLE
FOR NATURAL GAS.  BUT THE RATES THAT IT CAN FIX MUST BE "JUST AND
REASONABLE."  SEC. 5 OF THE NATURAL GAS ACT, 15 U.S.C. SEC. 717(D). 
INSTEAD OF MAKING THE COMMISSION'S RATE DETERMINATIONS FINAL, CONGRESS
SPECIFICALLY PROVIDED FOR COURT REVIEW OF SUCH ORDERS.  TO BE SURE,
"THE FINDING OF THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY
SUBSTANTIAL EVIDENCE" WAS MADE "CONCLUSIVE," SEC. 19 OF THE ACT, 15
U.S.C. SEC. 717R.  BUT OBEDIENCE OF THE REQUIREMENT OF CONGRESS THAT
RATES BE "JUST AND REASONABLE" IS NOT AN ISSUE OF FACT OF WHICH THE
COMMISSION'S OWN DETERMINATION IS CONCLUSIVE.  OTHERWISE, THERE WOULD
BE NOTHING FOR A COURT TO REVIEW EXCEPT QUESTIONS OF COMPLIANCE WITH
THE PROCEDURAL PROVISIONS OF THE NATURAL GAS ACT.  CONGRESS MIGHT HAVE
SEEN FIT SO TO CAST ITS LEGISLATION.  BUT IT HAS NOT DONE SO.  IT HAS
COMMITTED TO THE ADMINISTRATION OF THE FEDERAL POWER COMMISSION THE
DUTY OF APPLYING STANDARDS OF FAIR DEALING AND OF REASONABLENESS
RELEVANT TO THE PURPOSES EXPRESSED BY THE NATURAL GAS ACT.  THE
REQUIREMENT THAT RATES MUST BE "JUST AND REASONABLE" MEANS JUST AND
REASONABLE IN RELATION TO APPROPRIATE STANDARDS.  OTHERWISE CONGRESS
WOULD HAVE DIRECTED THE COMMISSION TO FIX SUCH RATES AS IN THE JUDGMENT
OF THE COMMISSION ARE JUST AND REASONABLE; IT WOULD NOT HAVE ALSO
PROVIDED THAT SUCH DETERMINATIONS BY THE COMMISSION ARE SUBJECT TO
COURT REVIEW.    TO WHAT SOURCES THEN ARE THE COMMISSION AND THE COURTS
TO GO FOR ASCERTAINING THE STANDARDS RELEVANT TO THE REGULATION OF
NATURAL GAS RATES?  IT IS AT THIS POINT THAT MR. JUSTICE JACKSON'S
ANALYSIS SEEMS TO ME PERTINENT.  THERE APPEAR TO BE TWO ALTERNATIVES. 
EITHER THE FIXING OF NATURAL GAS RATES MUST BE LEFT TO THE UNGUIDED
DISCRETION OF THE COMMISSION SO LONG AS THE RATES IT FIXES DO NOT
REVEAL A GLARINGLY BAD PROPHECY OF THE ABILITY OF A REGULATED UTILITY
TO CONTINUE ITS SERVICE IN THE FUTURE.  OR THE COMMISSION'S RATE ORDERS
MUST BE FOUNDED ON DUE CONSIDERATION OF ALL THE ELEMENTS OF THE PUBLIC
INTEREST WHICH THE PRODUCTION AND DISTRIBUTION OF NATURAL GAS INVOLVE
JUST BECAUSE IT IS NATURAL GAS.  THESE ELEMENTS ARE REFLECTED IN THE
NATURAL GAS ACT, IF THAT ACT BE APPLIED AS AN ENTIRETY.  SEE, FOR
INSTANCE, SECS. 4(A)(B)(C)(D), 6, AND 11, 15 U.S.C., SECS. 717C
(A)(B)(C)(D), 717C, AND 717J.  OF COURSE THE STATUTE IS NOT CONCERNED
WITH ABSTRACT THEORIES OF RATE-MAKING.  BUT ITS VERY FOUNDATION IS THE
"PUBLIC INTEREST," AND THE PUBLIC INTEREST IS A TEXTURE OF MULTIPLE
STRANDS.  IT INCLUDES MORE THAN CONTEMPORARY INVESTORS AND CONTEMPORARY
CONSUMERS.  THE NEEDS TO BE SERVED ARE NOT RESTRICTED TO IMMEDIACY, AND
SOCIAL AS WELL AS ECONOMIC COSTS MUST BE COUNTED. 

IT WILL NOT DO TO SAY THAT IT MUST ALL BE LEFT TO THE SKILL OF
EXPERTS.  EXPERTISE IS A RATIONAL PROCESS AND A RATIONAL PROCESS
IMPLIES EXPRESSED REASONS FOR JUDGMENT.  IT WILL LITTLE ADVANCE THE
PUBLIC INTEREST TO SUBSTITUTE FOR THE HODGE-PODGE OF THE RULE IN SMYTH
V. AMES, 169 U.S. 466, AN ENCOURAGEMENT OF CONSCIOUS OBSCURITY OR
CONFUSION IN REACHING A RESULT, ON THE ASSUMPTION THAT SO LONG AS THE
RESULT APPEARS HARMLESS ITS BASIS IS IRRELEVANT.  THAT MAY BE AN
APPROPRIATE ATTITUDE WHEN STATE ACTION IS CHALLENGED AS
UNCONSTITUTIONAL.  CF. DRISCOLL V. EDISON CO., 307 U.S. 104.  BUT IT IS
NOT TO BE ASSUMED THAT IT WAS THE DESIGN OF CONGRESS TO MAKE THE
ACCOMMODATION OF THE CONFLICTING INTERESTS EXPOSED IN MR. JUSTICE
JACKSON'S OPINION THE OCCASION FOR A BLIND CLASH OF FORCES OR A PARTIAL
ASSESSMENT OF RELEVANT FACTORS, EITHER BEFORE THE COMMISSION OR HERE. 

THE OBJECTION TO THE COMMISSION'S ACTION IS NOT THAT THE RATES IT
GRANTED WERE TOO LOW BUT THAT THE RANGE OF ITS VISION WAS TOO NARROW. 
AND SINCE THE ISSUES BEFORE THE COMMISSION INVOLVED NO LESS THAN THE
TOTAL PUBLIC INTEREST, THE PROCEEDINGS BEFORE IT SHOULD NOT BE JUDGED
BY NARROW CONCEPTIONS OF COMMON LAW PLEADING.  AND SO I CONCLUDE THAT
THE CASE SHOULD BE RETURNED TO THE COMMISSION.  IN ORDER TO ENABLE THIS
COURT TO DISCHARGE ITS DUTY OF REVIEWING THE COMMISSION'S ORDER, THE
COMMISSION SHOULD SET FORTH WITH EXPLICITNESS THE CRITERIA BY WHICH IT
IS GUIDED IN DETERMINING THAT RATES ARE "JUST AND REASONABLE," AND IT
SHOULD DETERMINE THE PUBLIC INTEREST THAT IS IN ITS KEEPING IN THE
PERSPECTIVE OF THE CONSIDERATIONS SET FORTH BY MR. JUSTICE JACKSON. 

BY MR. JUSTICE JACKSON: 

CERTAINLY THE THEORY OF THE COURT BELOW THAT TIES RATE-MAKING TO THE
FAIR-VALUE-REPRODUCTION-COST FORMULA SHOULD BE OVERRULED AS IN CONFLICT
WITH FEDERAL POWER COMMISSION V. NATURAL GAS PIPELINE CO. FN1  BUT THE
CASE SHOULD, I THINK, BE THE OCCASION FOR RECONSIDERATION OF OUR RATE
MAKING DOCTRINE AS APPLIED TO NATURAL GAS AND SHOULD BE RETURNED TO THE
COMMISSION, FOR FURTHER CONSIDERATION IN THE LIGHT THEREOF. 

THE COMMISSION APPEARS TO HAVE UNDERSTOOD THE EFFECT OF THE TWO
OPINIONS IN THE PIPELINE CASE TO BE AT LEAST AUTHORITY AND PERHAPS
DIRECTION TO FIX NATURAL GAS RATES BY EXCLUSIVE APPLICATION OF THE
"PRUDENT INVESTMENT" RATE BASE THEORY.  THIS HAS NO WARRANT IN THE
OPINION OF THE CHIEF JUSTICE FOR THE COURT, HOWEVER, WHICH RELEASED THE
COMMISSION FROM SUBSERVIENCE TO "ANY SINGLE FORMULA OR COMBINATION OF
FORMULAS" PROVIDED ITS ORDER, "VIEWED IN ITS ENTIRETY, PRODUCES NO
ARBITRARY RESULT."  315 U.S. AT 586.  THE MINORITY OPINION I UNDERSTOOD
TO ADVOCATE THE "PRUDENT INVESTMENT" THEORY AS A SUFFICIENT GUIDE IN A
NATURAL GAS CASE.  THE VIEW WAS EXPRESSED IN THE COURT BELOW THAT SINCE
THIS OPINION WAS NOT EXPRESSLY CONTROVERTED IT MUST HAVE BEEN
APPROVED.  FN2  I DISCLAIM THIS IMPUTED APPROVAL WITH SOME
PARTICULARITY, BECAUSE I ATTACH IMPORTANCE AT THE VERY BEGINNING OF
FEDERAL REGULATION OF THE NATURAL GAS INDUSTRY TO APPROACHING IT AS THE
PERFORMANCE OF ECONOMIC FUNCTIONS, NOT AS THE PERFORMANCE OF LEGALISTIC
RITUALS. 

                             I. 

SOLUTIONS OF THESE CASES MUST CONSIDER ECCENTRICITIES OF THE INDUSTRY
WHICH GIVES RISE TO THEM AND ALSO TO THE ACT OF CONGRESS BY WHICH THEY
ARE GOVERNED. 

THE HEART OF THIS PROBLEM IS THE ELUSIVE, EXHAUSTIBLE, AND
IRREPLACEABLE NATURE OF NATURAL GAS ITSELF.  GIVEN SUFFICIENT MONEY, WE
CAN PRODUCE ANY DESIRED AMOUNT OF RAILROAD, BUS, OR STEAMSHIP
TRANSPORTATION, OR COMMUNICATIONS FACILITIES, OR CAPACITY FOR
GENERATION OF ELECTRIC ENERGY, OR FOR THE MANUFACTURE OF GAS OF A
KIND.  IN THE SERVICE OF SUCH UTILITIES ONE CUSTOMER HAS LITTLE CONCERN
WITH THE AMOUNT TAKEN BY ANOTHER, ONE'S WASTE WILL NOT DEPRIVE ANOTHER,
A VOLUME OF SERVICE CAN BE CREATED EQUAL TO DEMAND, AND TODAY'S DEMANDS
WILL NOT EXHAUST OR LESSEN CAPACITY TO SERVE TOMORROW.  BUT THE WEALTH
OF MIDAS AND THE WIT OF MAN CANNOT PRODUCE OR REPRODUCE A NATURAL GAS
FIELD.  WE CANNOT EVEN REPRODUCE THE GAS, FOR OUR MANUFACTURED PRODUCT
HAS ONLY ABOUT HALF THE HEATING VALUE PER UNIT OF NATURE'S OWN.  FN3 

NATURAL GAS IN SOME QUANTITY IS PRODUCED IN TWENTY-FOUR STATES.  IT
IS CONSUMED IN ONLY THIRTY-FIVE STATES, AND IS AVAILABLE ONLY TO ABOUT
7,600,000 CONSUMERS.  FN4  ITS AVAILABILITY HAS BEEN MORE LOCALIZED
THAN THAT OF ANY OTHER UTILITY SERVICE BECAUSE IT HAS DEPENDED MORE ON
THE CAPRICE OF NATURE. 

THE SUPPLY OF THE HOPE COMPANY IS DRAWN FROM THAT OLD AND RICH AND
VANISHING FIELD THAT FLANKS THE APPALACHIAN MOUNTAINS.  ITS CENTER OF
PRODUCTION IS PENNSYLVANIA AND WEST VIRGINIA, WITH A FRINGE OF LESSER
PRODUCTION IN NEW YORK, OHIO, KENTUCKY, TENNESSEE, AND THE NORTH END OF
ALABAMA.  OIL WAS DISCOVERED IN COMMERCIAL QUANTITIES AT A DEPTH OF
ONLY 69 1/2 FEET NEAR TITUSVILLE, PENNSYLVANIA, IN 1859.  ITS VALUE
THEN WAS ABOUT $16 PER BARREL N5.  THE OIL BRANCH OF THE PETROLEUM
INDUSTRY WENT FORWARD AT ONCE, AND WITH UNPRECEDENTED SPEED.  THE AREA
PRODUCTIVE OF OIL AND GAS WAS ROUGHED OUT BY THE DRILLING OF OVER
19,000 "WILDCAT" WELLS, ESTIMATED TO HAVE COST OVER $222,000,000.  OF
THESE, OVER 18,000, OR 94.9 PER CENT, WERE "DRY HOLES."  ABOUT FIVE PER
CENT, OR 990 WELLS, MADE DISCOVERIES OF COMMERCIAL IMPORTANCE, 767 OF
THEM RESULTING CHIEFLY IN OIL AND 223 IN GAS ONLY.  FN6  PROSPECTING
FOR MANY YEARS WAS A SEARCH FOR OIL, AND TO STRIKE GAS WAS A
MISFORTUNE.  WASTE DURING THIS PERIOD AND EVEN LATER IS APPALLING.  GAS
WAS REGARDED AS HAVING NO COMMERCIAL VALUE UNTIL ABOUT 1882, IN WHICH
YEAR THE TOTAL YIELD WAS VALUED ONLY AT ABOUT $75,000.  FN7  SINCE
THEN, CONTRARY TO OIL, WHICH HAS BECOME CHEAPER, GAS IN THIS FIELD HAS
PRETTY STEADILY ADVANCED IN PRICE. 

WHILE FOR MANY YEARS NATURAL GAS HAD BEEN DISTRIBUTED ON A SMALL
SCALE FOR LIGHTING,  FN8  ITS ACCEPTANCE WAS SLOW, FACILITIES FOR ITS
UTILIZATION WERE PRIMITIVE, AND NOT UNTIL 1885 DID IT TAKE ON THE
APPEARANCE OF A SUBSTANTIAL INDUSTRY N9.  SOON MONOPOLY OF PRODUCTION
OR MARKETS DEVELOPED N10.  TO GET GAS FROM THE MOUNTAIN COUNTRY, WHERE
IT WAS LARGELY FOUND, TO CENTERS OF POPULATION, WHERE IT WAS IN DEMAND,
REQUIRED VERY LARGE INVESTMENT.  BY OWNERSHIP OF SUCH FACILITIES A FEW
CORPORATE SYSTEMS, EACH INCLUDING SEVERAL COMPANIES, CONTROLLED ACCESS
TO MARKETS.  THEIR PURCHASES BECAME THE DOMINATING FACTOR IN GIVING A
MARKET VALUE TO GAS PRODUCED BY MANY SMALL OPERATORS.  HOPE IS THE
MARKET FOR OVER 300 SUCH OPERATORS.  BY 1928 NATURAL GAS IN THE
APPALACHIAN FIELD COMMANDED AN AVERAGE PRICE OF 21.1 CENTS PER M.C.F.
AT POINTS OF PRODUCTION AND WAS BRINGING 45.7 CENTS AT POINTS OF
CONSUMPTION.  FN11  THE COMPANIES WHICH CONTROLLED MARKETS, HOWEVER,
DID NOT RELY ON GAS PURCHASES ALONE.  THEY ACQUIRED AND HELD IN FEE OR
LEASEHOLD GREAT ACREAGE IN TERRITORY PROVED BY "WILDCAT" DRILLING. 
THESE LARGE MARKETING SYSTEM COMPANIES AS WELL AS MANY SMALL
INDEPENDENT OWNERS AND OPERATORS HAVE CARRIED ON THE COMMERCIAL
DEVELOPMENT OF PROVED TERRITORY.  THE DEVELOPMENT RISKS APPEAR FROM THE
ESTIMATE THAT UP TO 1928, 312,318 PROVED AREA WELLS HAD BEEN SUNK IN
THE APPALACHIAN FIELD OF WHICH 48,962, OR 15.7 PER CENT, FAILED TO
PRODUCE OIL OR GAS IN COMMERCIAL QUANTITY.  FN12 

WITH THE SOURCE OF SUPPLY THUS TAPPED TO SERVE CENTERS OF LARGE
DEMAND, LIKE PITTSBURGH, BUFFALO, CLEVELAND, YOUNGSTOWN, AKRON, AND
OTHER INDUSTRIAL COMMUNITIES, THE DISTRIBUTION OF NATURAL GAS FAST
BECAME BIG BUSINESS.  ITS ADVANTAGES AS A FUEL AND ITS PRICE COMMENDED
IT, AND THE BUSINESS YIELDED A HANDSOME RETURN.  ALL WAS MERRY AND THE
GOOSE HUNG HIGH FOR CONSUMERS AND GAS COMPANIES ALIKE UNTIL ABOUT THE
TIME OF THE FIRST WORLD WAR.  ALMOST UNNOTICED BY THE CONSUMING PUBLIC,
THE WHOLE APPALACHIAN FIELD PASSED ITS PEAK OF PRODUCTION AND STARTED
TO DECLINE.  PENNSYLVANIA, WHICH TO 1928 HAD GIVEN OFF ABOUT 38 PER
CENT OF THE NATURAL GAS FROM THIS FIELD, HAD ITS PEAK IN 1905; OHIO,
WHICH HAD PRODUCED 14 PER CENT, HAD ITS PEAK IN 1915; AND WEST
VIRGINIA, GREATEST PRODUCER OF ALL, WITH 45 PER CENT TO ITS CREDIT,
REACHED ITS PEAK IN 1917.  FN13 

WESTERN NEW YORK AND EASTERN OHIO, ON THE FRINGE OF THE FIELD, HAD
SOME PRODUCTION BUT RELIED HEAVILY ON IMPORTS FROM PENNSYLVANIA AND
WEST VIRGINIA.  PENNSYLVANIA, A PRODUCING AND EXPORTING STATE, WAS A
HEAVY CONSUMER AND SUPPLEMENTED HER PRODUCTION WITH IMPORTS FROM WEST
VIRGINIA.  WEST VIRGINIA WAS A CONSUMING STATE, BUT THE LION'S SHARE OF
HER PRODUCTION WAS EXPORTED.  THUS THE INTEREST OF THE STATES IN THE
NORTH APPALACHIAN SUPPLY WAS IN CONFLICT. 

COMPETITION AMONG LOCALITIES TO SHARE IN THE FAILING SUPPLY AND THE
HELPLESSNESS OF STATE AND LOCAL AUTHORITIES IN THE PRESENCE OF STATE
LINES AND CORPORATE COMPLEXITIES IS A PART OF THE BACKGROUND OF FEDERAL
INTERVENTION IN THE INDUSTRY.  FN14  WEST VIRGINIA TOOK THE BOLDEST
MEASURE.  IT LEGISLATED A PRIORITY IN ITS ENTIRE PRODUCTION IN FAVOR OF
ITS OWN INHABITANTS.  THAT WAS FRUSTRATED BY AN INJUNCTION FROM THIS
COURT.  FN15  THROUGHOUT THE REGION CLASHES IN THE COURTS AND
CONFLICTING DECISIONS EVIDENCED PUBLIC ANXIETY AND CONFUSION.  IT WAS
HELD THAT THE NEW YORK PUBLIC SERVICE COMMISSION DID NOT HAVE POWER TO
CLASSIFY CONSUMERS AND RESTRICT THEIR USE OF GAS.  FN16  THAT
COMMISSION HELD THAT A COMPANY COULD NOT ABANDON A PART OF ITS
TERRITORY AND STILL SERVE THE REST.  FN17  SOME COURTS ADMONISHED THE
COMPANIES TO TAKE ACTION TO PROTECT CONSUMERS N18.  SEVERAL COURTS HELD
THAT COMPANIES, REGARDLESS OF FAILING SUPPLY, MUST CONTINUE TO TAKE ON
CUSTOMERS, BUT SUCH COMPULSORY ADDITIONS WERE FINALLY HELD TO BE WITHIN
THE PUBLIC SERVICE COMMISSION'S DISCRETION.  FN19  THERE WERE ATTEMPTS
TO THROW UP FRANCHISES AND QUIT THE SERVICE, AND MUNICIPALITIES
RESORTED TO THE COURTS WITH CONFLICTING RESULTS.  FN20  PUBLIC SERVICE
COMMISSIONS OF CONSUMING STATES WERE HANDICAPPED, FOR THEY HAD NO
CONTROL OF THE SUPPLY.  FN21 

SHORTAGES DURING WORLD WAR I OCCASIONED THE FIRST INTERVENTION IN THE
NATURAL GAS INDUSTRY BY THE FEDERAL GOVERNMENT.  UNDER PROCLAMATION OF
PRESIDENT WILSON THE UNITED STATES FUEL ADMINISTRATOR TOOK CONTROL,
STOPPED EXTENSIONS, CLASSIFIED CONSUMERS AND ESTABLISHED A PRIORITY FOR
DOMESTIC OVER INDUSTRIAL USE.  FN22  AFTER THE WAR FEDERAL CONTROL WAS
ABANDONED.  SOME CITIES ONCE SERVED WITH NATURAL GAS BECAME DEPENDENT
UPON A MIXED GAS OF REDUCED HEATING VALUE AND RELATIVELY HIGHER PRICE. 
FN23 

UTILIZATION OF NATURAL GAS OF HIGHEST SOCIAL AS WELL AS ECONOMIC
RETURN IS DOMESTIC USE FOR COOKING AND WATER HEATING, FOLLOWED CLOSELY
BY USE FOR SPACE HEATING IN HOMES.  THIS IS THE TRUE PUBLIC UTILITY
ASPECT OF THE ENTERPRISE, AND ITS PRESERVATION SHOULD BE THE FIRST
CONCERN OF REGULATION.  GAS DOES THE FAMILY COOKING CHEAPER THAN ANY
OTHER FUEL.  FN24  BUT ITS ADVANTAGES DO NOT END WITH DOLLARS AND CENTS
COST.  IT IS DELIVERED WITHOUT INTERRUPTION AT THE METER AS NEEDED AND
IS PAID FOR AFTER IT IS USED.  NO MONEY IS TIED UP IN A SUPPLY, AND NO
SPACE IS USED FOR STORAGE.  IT REQUIRES NO HANDLING, CREATES NO DUST,
AND LEAVES NO ASH.  IT RESPONDS TO THERMOSTATIC CONTROL.  IT IGNITES
EASILY AND IMMEDIATELY DEVELOPS ITS MAXIMUM HEATING CAPACITY.  THESE
INCIDENTAL ADVANTAGES MAKE DOMESTIC LIFE MORE LIVEABLE. 

INDUSTRIAL USE IS INDUCED LESS BY THESE QUALITIES THAN BY LOW COST IN
COMPETITION WITH OTHER FUELS.  OF THE GAS EXPORTED FROM WEST VIRGINIA
BY THE HOPE COMPANY A VERY SUBSTANTIAL PART IS USED BY INDUSTRIES. 
THIS WHOLESALE USE SPEEDS EXHAUSTION OF SUPPLY AND DISPLACES OTHER
FUELS.  COAL MINERS AND THE COAL INDUSTRY, A LARGE PART OF WHOSE COSTS
ARE WAGES, HAVE COMPLAINED OF UNFAIR COMPETITION FROM LOW-PRICED
INDUSTRIAL GAS PRODUCED WITH RELATIVELY LITTLE LABOR COST.  FN25 

GAS RATE STRUCTURES GENERALLY HAVE FAVORED INDUSTRIAL USERS.  IN
1932, IN OHIO, THE AVERAGE YIELD ON GAS FOR DOMESTIC CONSUMPTION WAS
62.1 CENTS PER M.C.F. AND ON INDUSTRIAL, 38.7.  IN PENNSYLVANIA, THE
FIGURES WERE 62.9 AGAINST 31.7.  WEST VIRGINIA SHOWED THE LEAST SPREAD,
DOMESTIC CONSUMERS PAYING 36.6 CENTS; AND INDUSTRIAL, 27.7.  FN26
ALTHOUGH THIS SPREAD IS LESS THAN IN OTHER PARTS OF THE UNITED STATES,
FN27  IT CAN HARDLY BE SAID TO BE SELF-JUSTIFYING.  IT CERTAINLY IS A
VERY GREAT FACTOR IN HASTENING DECLINE OF THE NATURAL GAS SUPPLY. 
ABOUT THE TIME OF WORLD WAR I THERE WERE OCCASIONAL AND SHORT-LIVED
EFFORTS BY SOME HARD-PRESSED COMPANIES TO REVERSE THIS DISCRIMINATION
AND ADOPT GRADUATED RATES, GIVING A LOW RATE TO QUANTITIES ADEQUATE FOR
DOMESTIC USE AND GRADUATING IT UPWARD TO DISCOURAGE INDUSTRIAL USE. 
FN28 THESE RATES MET OPPOSITION FROM INDUSTRIAL SOURCES, OF COURSE, AND
SINCE DIMINISHED REVENUES FROM INDUSTRIAL SOURCES TENDED TO INCREASE
THE DOMESTIC PRICE, THEY MET LITTLE POPULAR OR COMMISSION FAVOR.  THE
FACT IS THAT NEITHER THE GAS COMPANIES NOR THE CONSUMERS NOR LOCAL
REGULATORY BODIES CAN BE DEPENDED UPON TO CONSERVE GAS.  UNLESS FEDERAL
REGULATION WILL TAKE ACCOUNT OF CONSERVATION, ITS EFFORTS SEEM, AS IN
THIS CASE, ACTUALLY TO CONSTITUTE A NEW THREAT TO THE LIFE OF THE
APPALACHIAN SUPPLY. 

    II. 

CONGRESS IN 1938 DECIDED UPON FEDERAL REGULATION OF THE INDUSTRY.  IT
DID SO AFTER AN EXHAUSTIVE INVESTIGATION OF ALL ASPECTS INCLUDING
FAILING SUPPLY AND COMPETITION FOR THE USE OF NATURAL GAS INTENSIFIED
BY GROWING SCARCITY.  FN29  PIPELINES FROM THE APPALACHIAN AREA TO
MARKETS WERE IN THE CONTROL OF A HANDFUL OF HOLDING COMPANY SYSTEMS. 
FN30  THIS CREATED A HIGHLY CONCENTRATED CONTROL OF THE PRODUCERS'
MARKET AND OF THE CONSUMERS' SUPPLIES.  WHILE HOLDING COMPANIES
DOMINATED BOTH PRODUCTION AND DISTRIBUTION THEY SEGREGATED THOSE
ACTIVITIES IN SEPARATE SUBSIDIARIES,  FN31  THE EFFECT OF WHICH, IF NOT
THE PURPOSE, WAS TO ISOLATE SOME END OF THE BUSINESS FROM THE REACH OF
ANY ONE STATE COMMISSION.  THE COST OF NATURAL GAS TO CONSUMERS MOVED
STEADILY UPWARDS OVER THE YEARS, OUT OF PROPORTION TO PRICES OF OIL,
WHICH, EXCEPT FOR THE ELEMENT OF COMPETITION, IS PRODUCED UNDER
SOMEWHAT COMPARABLE CONDITIONS.  THE PUBLIC CAME TO FEEL THAT THE
COMPANIES WERE EXPLOITING THE GROWING SCARCITY OF LOCAL GAS.  THE
PROBLEMS OF THIS REGION HAD MUCH TO DO WITH CREATING THE DEMAND FOR
FEDERAL REGULATION. 

THE NATURAL GAS ACT DECLARED THE NATURAL GAS BUSINESS TO BE "AFFECTED
WITH A PUBLIC INTEREST," AND ITS REGULATION "NECESSARY IN THE PUBLIC
INTEREST."  FN32  ORIGINALLY, AND AT THE TIME THIS PROCEEDING WAS
COMMENCED AND TRIED, IT ALSO DECLARED "THE INTENTION OF CONGRESS THAT
NATURAL GAS SHALL BE SOLD IN INTERSTATE COMMERCE FOR RESALE FOR
ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL, OR
ANY OTHER USE AT THE LOWEST POSSIBLE REASONABLE RATE CONSISTENT WITH
THE MAINTENANCE OF ADEQUATE SERVICE IN THE PUBLIC INTEREST."  FN33
WHILE THIS WAS LATER DROPPED, THERE IS NOTHING TO INDICATE THAT IT WAS
NOT AND IS NOT STILL AN ACCURATE STATEMENT OF PURPOSE OF THE ACT. 
EXTENSION OR IMPROVEMENT OF FACILITIES MAY BE ORDERED WHEN "NECESSARY
OR DESIRABLE IN THE PUBLIC INTEREST," ABANDONMENT OF FACILITIES MAY BE
ORDERED WHEN THE SUPPLY IS "DEPLETED TO THE EXTENT THAT THE CONTINUANCE
OF SERVICE IS UNWARRANTED, OR THAT THE PRESENT OR FUTURE PUBLIC
CONVENIENCE OR NECESSITY PERMIT" ABANDONMENT AND CERTAIN EXTENSIONS CAN
ONLY BE MADE ON FINDING OF "THE PRESENT OR FUTURE CONVENIENCE AND
NECESSITY."  FN34  THE COMMISSION IS REQUIRED TO TAKE ACCOUNT OF THE
ULTIMATE USE OF THE GAS.  THUS IT IS GIVEN POWER TO SUSPEND NEW
SCHEDULES AS TO RATES, CHARGES, AND CLASSIFICATION OF SERVICES EXCEPT
WHERE THE SCHEDULES ARE FOR THE SALE OF GAS "FOR RESALE FOR INDUSTRIAL
USE ONLY,"  FN35  WHICH GIVES THE COMPANIES GREATER FREEDOM TO INCREASE
RATES ON INDUSTRIAL GAS THAN ON DOMESTIC GAS.  MORE PARTICULARLY, THE
ACT EXPRESSLY FORBIDS ANY UNDUE PREFERENCE OR ADVANTAGE TO ANY PERSON
OR "ANY UNREASONABLE DIFFERENCE IN RATES  ...  EITHER AS BETWEEN
LOCALITIES OR AS BETWEEN CLASSES OF SERVICE."  FN36  AND THE POWER OF
THE COMMISSION EXPRESSLY INCLUDES THAT TO DETERMINE THE "JUST AND
REASONABLE RATE, CHARGE, CLASSIFICATION, RULE, REGULATION, PRACTICE, OR
CONTRACT TO BE THEREAFTER OBSERVED AND IN FORCE."  FN37 

IN VIEW OF THE COURT'S OPINION THAT THE COMMISSION IN ADMINISTERING
THE ACT MAY IGNORE DISCRIMINATION, IT IS INTERESTING THAT IN REPORTING
THIS BILL BOTH THE SENATE AND THE HOUSE COMMITTEES ON INTERSTATE
COMMERCE POINTED OUT THAT IN 1934, ON A NATION-WIDE AVERAGE THE PRICE
OF NATURAL GAS PER M.C.F. WAS 74.6 CENTS FOR DOMESTIC USE, 49.6 CENTS
FOR COMMERCIAL USE, AND 16.9 FOR INDUSTRIAL USE.  FN38  I AM NOT READY
TO THINK THAT SUPPORTERS OF A BILL CALLED ATTENTION TO THE STRIKING
FACT THAT HOUSEHOLDERS WERE BEING CHARGED FIVE TIMES AS MUCH FOR THEIR
GAS AS INDUSTRIAL USERS ONLY AS A SITUATION WHICH THE BILL WOULD DO
NOTHING TO REMEDY.  ON THE OTHER HAND THE ACT GAVE TO THE COMMISSION
WHAT THE COURT APTLY DESCRIBES AS "BROAD POWERS OF REGULATION." 

                                 III. 

THIS PROCEEDING WAS INITIATED BY THE CITIES OF CLEVELAND AND AKRON. 
THEY ALLEGED THAT THE PRICE CHARGED BY HOPE FOR NATURAL GAS "FOR RESALE
TO DOMESTIC, COMMERCIAL AND SMALL INDUSTRIAL CONSUMERS IN CLEVELAND AND
ELSEWHERE IS EXCESSIVE, UNJUST, UNREASONABLE, GREATLY IN EXCESS OF THE
PRICE CHARGED BY HOPE TO NONAFFILIATED COMPANIES AT WHOLESALE FOR
RESALE TO DOMESTIC, COMMERCIAL, AND SMALL INDUSTRIAL CONSUMERS, AND
GREATLY IN EXCESS OF THE PRICE CHARGED BY HOPE TO EAST OHIO FOR RESALE
TO CERTAIN FAVORED INDUSTRIAL CONSUMERS IN OHIO, AND THEREFORE IS
FURTHER UNDULY DISCRIMINATORY BETWEEN CUSTOMERS AND BETWEEN CLASSES OF
SERVICE".  THE COMPANY ANSWERED ADMITTING DIFFERENCES IN PRICES TO
AFFILIATED AND NONAFFILIATED COMPANIES AND JUSTIFYING THEM BY
DIFFERENCES IN CONDITIONS OF DELIVERY.  AS TO THE ALLEGATION THAT THE
CONTRACT PRICE IS "GREATLY IN EXCESS OF THE PRICE CHARGED BY HOPE TO
EAST OHIO FOR RESALE TO CERTAIN FAVORED INDUSTRIAL CONSUMERS IN OHIO,"
HOPE DID NOT DENY A PRICE DIFFERENTIAL, BUT ALLEGED THAT INDUSTRIAL GAS
WAS NOT SOLD TO "FAVORED CONSUMERS" BUT WAS SOLD UNDER CONTRACTS AND
SCHEDULES FILED WITH AND APPROVED BY THE PUBLIC UTILITIES COMMISSION OF
OHIO, AND THAT CERTAIN CONDITIONS OF DELIVERY MADE IT NOT "UNDULY
DISCRIMINATORY." 

THE RECORD SHOWS THAT IN 1940 HOPE DELIVERED FOR INDUSTRIAL
CONSUMPTION 36,523,792 M.C.F. AND FOR DOMESTIC AND COMMERCIAL
CONSUMPTION, 50,343,652 M.C.F.  I FIND NO SEPARATE FIGURE FOR DOMESTIC
CONSUMPTION.  IT SERVED 43,767 DOMESTIC CONSUMERS DIRECTLY, 511,521
THROUGH THE EAST OHIO GAS COMPANY, AND 154,043 THROUGH THE PEOPLES
NATURAL GAS COMPANY, BOTH AFFILIATES OWNED BY THE SAME PARENT.  ITS
SPECIAL CONTRACTS FOR INDUSTRIAL CONSUMPTION, SO FAR AS APPEAR, ARE
CONFINED TO ABOUT A DOZEN BIG INDUSTRIES. 

HOPE IS RESPONSIBLE FOR SUCH DISCRIMINATION AS EXISTS IN FAVOR OF
THESE FEW INDUSTRIAL CONSUMERS.  IT CONTROLS BOTH THE RESALE PRICE AND
USE OF INDUSTRIAL GAS BY VIRTUE OF THE VERY INTERSTATE SALES CONTRACTS
OVER WHICH THE COMMISSION IS EXERCISING ITS JURISDICTION. 

HOPE'S CONTRACT WITH EAST OHIO COMPANY IS AN EXAMPLE.  HOPE AGREES TO
DELIVER, AND THE OHIO COMPANY TO TAKE, "(A) ALL NATURAL GAS REQUISITE
FOR THE SUPPLY OF THE DOMESTIC CONSUMERS OF THE OHIO COMPANY; (B) SUCH
AMOUNTS OF NATURAL GAS AS MAY BE REQUISITE TO FULFILL CONTRACTS MADE
WITH THE CONSENT AND APPROVAL OF THE HOPE COMPANY BY THE OHIO COMPANY,
OR COMPANIES WHICH IT SUPPLIES WITH NATURAL GAS, FOR THE SALE OF GAS
UPON SPECIAL TERMS AND CONDITIONS FOR MANUFACTURING PURPOSES."  THE
OHIO COMPANY IS REQUIRED TO READ DOMESTIC CUSTOMERS' METERS ONCE A
MONTH AND METERS OF INDUSTRIAL CUSTOMERS DAILY AND TO FURNISH ALL METER
READINGS TO HOPE.  THE HOPE COMPANY IS TO HAVE ACCESS TO METERS OF ALL
CONSUMERS AND TO ALL OF THE OHIO COMPANY'S ACCOUNTS.  THE DOMESTIC
CONSUMERS OF THE OHIO COMPANY ARE TO BE FULLY SUPPLIED IN PREFERENCE TO
CONSUMERS PURCHASING FOR MANUFACTURING PURPOSES AND "HOPE COMPANY CAN
BE REQUIRED TO SUPPLY GAS TO BE USED FOR MANUFACTURING PURPOSES ONLY
WHERE THE SAME IS SOLD UNDER SPECIAL CONTRACTS WHICH HAVE FIRST BEEN
SUBMITTED TO AND APPROVED IN WRITING BY THE HOPE COMPANY AND WHICH
EXPRESSLY PROVIDE THAT NATURAL GAS WILL BE SUPPLIED THEREUNDER ONLY IN
SO FAR AS THE SAME IS NOT NECESSARY TO MEET THE REQUIREMENTS OF
DOMESTIC CONSUMERS SUPPLIED THROUGH PIPE LINES OF THE OHIO COMPANY." 
THIS BASIC CONTRACT WAS SUPPLEMENTED FROM TIME TO TIME, CHIEFLY AS TO
PRICE.  THE LAST AMENDMENT WAS IN A LETTER FROM HOPE TO EAST OHIO IN
1937.  IT CONTAINED A SPECIAL DISCOUNT ON INDUSTRIAL GAS AND A SCHEDULE
OF SPECIAL INDUSTRIAL CONTRACTS, HOPE RESERVING THE RIGHT TO MAKE
ELIMINATIONS THEREFROM AND AGREEING THAT OTHERS MIGHT BE ADDED FROM
TIME TO TIME WITH ITS APPROVAL IN WRITING.  IT SAID, "IT IS BELIEVED
THAT THE PRICE CONCESSIONS CONTAINED IN THIS LETTER, WHILE NOT BASED ON
OUR COSTS, ARE, UNDER CERTAIN CONDITIONS, TO OUR MUTUAL ADVANTAGE IN
MAINTAINING AND BUILDING UP THE VOLUMES OF GAS SOLD BY US."  FN39 

THE COMMISSION TOOK NO NOTE OF THE CHARGES OF DISCRIMINATION AND MADE
NO DISPOSITION OF THE ISSUE TENDERED ON THIS POINT.  IT ORDERED A FLAT
REDUCTION IN THE PRICE PER M.C.F. OF ALL GAS DELIVERED BY HOPE IN
INTERSTATE COMMERCE.  IT MADE NO LIMITATION, CONDITION, OR PROVISION AS
TO WHAT CLASSES OF CONSUMERS SHOULD GET THE BENEFIT OF THE REDUCTION. 
WHILE THE CITIES HAVE ACCEPTED AND ARE DEFENDING THE REDUCTION, IT IS
MY VIEW THAT THE DISCRIMINATION OF WHICH THEY HAVE COMPLAINED IS
PERPETUATED AND INCREASED BY THE ORDER OF THE COMMISSION AND THAT IT
VIOLATES THE ACT IN SO DOING. 

THE COMMISSION'S OPINION APTLY CHARACTERIZES ITS ENTIRE OBJECTIVE BY
SAYING THAT "BONA FIDE INVESTMENT FIGURES NOW BECOME ALL-IMPORTANT IN
THE REGULATION OF RATES."  IT SHOULD BE NOTED THAT THE ALL-IMPORTANCE
OF THIS THEORY IS NOT THE RESULT OF ANY INSTRUCTION FROM CONGRESS. 
WHEN THE BILL TO REGULATE GAS WAS FIRST BEFORE CONGRESS IT CONTAINED
THE FOLLOWING:  "IN DETERMINING JUST AND REASONABLE RATES THE
COMMISSION SHALL FIX SUCH RATE AS WILL ALLOW A FAIR RETURN UPON THE
ACTUAL LEGITIMATE PRUDENT COST OF THE PROPERTY USED AND USEFUL FOR THE
SERVICE IN QUESTION."  H.R. 5423, 74TH CONG., 1ST SESS., TITLE III,
SEC. 312(C).  CONGRESS REJECTED THIS LANGUAGE.  SEE H.R. 5423, SEC.
213(211(C)), AND H.R. REP. NO. 1318, 74TH CONG., 1ST SESS., 30. 

THE COMMISSION CONTENDS NEVERTHELESS THAT THE "ALL IMPORTANT" FORMULA
FOR FINDING A RATE BASE IS THAT OF PRUDENT INVESTMENT.  BUT IT EXCLUDED
FROM THE INVESTMENT BASE AN AMOUNT ACTUALLY AND ADMITTEDLY INVESTED OF
SOME $17,000,000.  IT DID SO BECAUSE IT SAYS THAT THE COMPANY RECOUPED
THESE EXPENDITURES FROM CUSTOMERS BEFORE THE DAYS OF REGULATION FROM
EARNINGS ABOVE A FAIR RETURN.  BUT IT WOULD NOT APPLY ALL OF SUCH
"EXCESS EARNINGS" TO REDUCE THE RATE BASE AS ONE OF THE COMMISSIONERS
SUGGESTED.  THE REASON FOR APPLYING EXCESS EARNINGS TO REDUCE THE
INVESTMENT BASE ROUGHLY FROM $69,000,000 TO $52,000,000 BUT REFUSING TO
APPLY THEM TO REDUCE IT FROM THAT TO SOME $18,000,000 IS NOT FOUND IN A
DIFFERENCE IN THE CHARACTER OF THE EARNINGS OR IN THEIR REINVESTMENT. 
THE REASON ASSIGNED IS A DIFFERENCE IN BOOKKEEPING TREATMENT MANY YEARS
BEFORE THE COMPANY WAS SUBJECT TO REGULATION.  THE $17,000,000,
REINVESTED CHIEFLY IN WELL DRILLING, WAS TREATED ON THE BOOKS AS
EXPENSE.  (THE COMMISSION NOW REQUIRES THAT DRILLING COSTS BE CARRIED
TO CAPITAL ACCOUNT.)  THE ALLOWED RATE BASE THUS ACTUALLY WAS
DETERMINED BY THE COMPANY'S BOOKKEEPING, NOT ITS INVESTMENT.  THIS
ATTRIBUTES A SIGNIFICANCE TO FORMAL CLASSIFICATION IN ACCOUNT KEEPING
THAT SEEMS INCONSISTENT WITH RATIONAL RATE REGULATION.  FN40  OF
COURSE, THE COMMISSION WOULD NOT AND SHOULD NOT ALLOW A RATE BASE TO BE
INFLATED BY BOOKKEEPING WHICH HAD IMPROPERLY CAPITALIZED EXPENSES.  I
HAVE DOUBTS ABOUT RESTING PUBLIC REGULATION UPON ANY RULE THAT IS TO BE
USED OR NOT DEPENDING ON WHICH SIDE IT FAVORS. 

THE COMPANY ON THE OTHER HAND, HAS NOT PUT ITS GAS FIELDS INTO ITS
CALCULATIONS ON THE PRESENT-VALUE BASIS, ALTHOUGH THAT, IT CONTENDS, IS
THE ONLY LAWFUL RULE FOR FINDING A RATE BASE.  TO DO SO WOULD RESULT IN
A RATE HIGHER THAN IT HAS CHARGED OR PROPOSES AS A MATTER OF GOOD
BUSINESS TO CHARGE. 

THE CASE BEFORE US DEMONSTRATES THE LACK OF RATIONAL RELATIONSHIP
BETWEEN CONVENTIONAL RATE-BASE FORMULAS AND NATURAL GAS PRODUCTION AND
THE EXTREMITIES TO WHICH REGULATING BODIES ARE BROUGHT BY THE EFFORT TO
RATIONALIZE THEM.  THE COMMISSION AND THE COMPANY EACH STANDS ON A
DIFFERENT THEORY, AND NEITHER VENTURES TO CARRY ITS THEORY TO LOGICAL
CONCLUSION AS APPLIED TO GAS FIELDS. 

                                 IV. 

THIS ORDER IS UNDER JUDICIAL REVIEW NOT BECAUSE WE INTERPOSE
CONSTITUTIONAL THEORIES BETWEEN A STATE AND THE BUSINESS IT SEEKS TO
REGULATE, BUT BECAUSE CONGRESS PUT UPON THE FEDERAL COURTS A DUTY
TOWARD ADMINISTRATION OF A NEW FEDERAL REGULATORY ACT.  IF WE ARE TO
HOLD THAT A GIVEN RATE IS REASONABLE JUST BECAUSE THE COMMISSION HAS
SAID IT WAS REASONABLE, REVIEW BECOMES A COSTLY, TIME-CONSUMING PAGEANT
OF NO PRACTICAL VALUE TO ANYONE.  IF ON THE OTHER HAND WE ARE TO BRING
JUDGMENT OF OUR OWN TO THE TASK, WE SHOULD FOR THE GUIDANCE OF THE
REGULATORS AND THE REGULATED REVEAL SOMETHING OF THE PHILOSOPHY, BE IT
LEGAL OR ECONOMIC OR SOCIAL, WHICH GUIDES US.  WE NEED NOT BE SLAVES TO
A FORMULA BUT UNLESS WE CAN POINT OUT A RATIONAL WAY OF REACHING OUR
CONCLUSIONS THEY CAN ONLY BE ACCEPTED AS RESTING ON INTUITION OR
PREDILECTION.  I MUST ADMIT THAT I POSSESS NO INSTINCT BY WHICH TO KNOW
THE "REASONABLE" FROM THE "UNREASONABLE" IN PRICES AND MUST SEEK SOME
CONSCIOUS DESIGN FOR DECISION. 

THE COURT SUSTAINS THIS ORDER AS REASONABLE, BUT WHAT MAKES IT SO OR
WHAT COULD POSSIBLY MAKE IT OTHERWISE, I CANNOT LEARN.  IT HOLDS THAT:
"IT IS THE RESULT REACHED NOT THE METHOD EMPLOYED WHICH IS
CONTROLLING"; "THE FACT THAT THE METHOD EMPLOYED TO REACH THAT RESULT
MAY CONTAIN INFIRMITIES IS NOT THEN IMPORTANT" AND IT IS NOT "IMPORTANT
TO THIS CASE TO DETERMINE THE VARIOUS PERMISSIBLE WAYS IN WHICH ANY
RATE BASE ON WHICH THE RETURN IS COMPUTED MIGHT BE ARRIVED AT."  THE
COURT DOES LEAN SOMEWHAT ON CONSIDERATIONS OF CAPITALIZATION AND
DIVIDEND HISTORY AND REQUIREMENTS FOR DIVIDENDS ON OUTSTANDING STOCK. 
BUT I CAN GIVE NO REAL WEIGHT TO THAT FOR IT IS GENERALLY AND I THINK
DESERVEDLY IN DISCREDIT AS ANY GUIDE IN RATE CASES.  FN41    OUR BOOKS
ALREADY CONTAIN SO MUCH TALK OF METHODS OF RATIONALIZING RATES THAT WE
MUST APPEAR AMBIGUOUS IF WE ANNOUNCE RESULTS WITHOUT OUR WORKING
METHODS.  WE ARE CONFRONTED WITH REGULATION OF A UNIQUE TYPE OF
ENTERPRISE WHICH I THINK REQUIRES CONSIDERED REJECTION OF MUCH
CONVENTIONAL UTILITY DOCTRINE AND ADOPTION OF CONCEPTS OF "JUST AND
REASONABLE" RATES AND PRACTICES AND OF THE "PUBLIC INTEREST" THAT WILL
TAKE ACCOUNT OF THE PECULIARITIES OF THE BUSINESS. 

THE COURT REJECTS THE SUGGESTIONS OF THIS OPINION.  IT SAYS THAT THE
COMMITTEES IN REPORTING THE BILL WHICH BECAME THE ACT SAID IT PROVIDED
"FOR REGULATION ALONG RECOGNIZED AND MORE OR LESS STANDARDIZED LINES"
AND THAT THERE WAS "NOTHING NOVEL IN ITS PROVISIONS."  SO SAYING IT
SUSTAINS A RATE CALCULATED ON A NOVEL VARIATION OF A RATE BASE THEORY
WHICH ITSELF HAD AT THE TIME OF ENACTMENT OF THE LEGISLATION BEEN
RECOGNIZED ONLY IN DISSENTING OPINIONS.  OUR DIFFERENCE SEEMS TO BE
BETWEEN UNCONSCIOUS INNOVATION,  FN42  AND THE PURPOSEFUL AND
DELIBERATE INNOVATION I WOULD MAKE TO MEET THE NECESSITIES OF
REGULATING THE INDUSTRY BEFORE US. 

HOPE'S BUSINESS HAS TWO COMPONENTS OF QUITE DIVERGENT CHARACTER. 
ONE, WHILE NOT A CONVENTIONAL COMMON-CARRIER UNDERTAKING, IS
ESSENTIALLY A TRANSPORTATION ENTERPRISE CONSISTING OF CONVEYING GAS
FROM WHERE IT IS PRODUCED TO POINT OF DELIVERY TO THE BUYER.  THIS IS A
RELATIVELY ROUTINE OPERATION NOT DIFFERING SUBSTANTIALLY FROM MANY
OTHER UTILITY OPERATIONS.  THE SERVICE IS PRODUCED BY AN INVESTMENT IN
COMPRESSION AND TRANSMISSION FACILITIES.  ITS RISKS ARE THOSE OF
INVESTING IN A TESTED MEANS OF CONVEYING A DISCOVERED SUPPLY OF GAS TO
A KNOWN MARKET.  A RATE BASE CALCULATED ON THE PRUDENT INVESTMENT
FORMULA WOULD SEEM A REASONABLY SATISFACTORY MEASURE FOR FIXING A
RETURN FROM THAT BRANCH OF THE BUSINESS WHOSE SERVICE IS ROUGHLY
PROPORTIONATE TO THE CAPITAL INVESTED.  BUT IT HAS OTHER CONSEQUENCES
WHICH MUST NOT BE OVERLOOKED.  IT GIVES MARKETABILITY AND HENCE "VALUE"
TO GAS OWNED BY THE COMPANY AND GIVES THE PIPELINE COMPANY A LARGE
POWER OVER THE MARKETABILITY AND HENCE "VALUE" OF THE PRODUCTION OF
OTHERS. 

THE OTHER PART OF THE BUSINESS - TO REDUCE TO POSSESSION AN ADEQUATE
SUPPLY OF NATURAL GAS - IS OF OPPOSITE CHARACTER, BEING MORE ERRATIC
AND IRREGULAR AND UNPREDICTABLE IN RELATION TO INVESTMENT THAN ANY
PHASE OF ANY OTHER UTILITY BUSINESS.  A THOUSAND FEET OF GAS CAPTURED
AND SEVERED FROM REAL ESTATE FOR DELIVERY TO CONSUMERS IS RECOGNIZED
UNDER OUR LAW AS PROPERTY OF MUCH THE SAME NATURE AS A TON OF COAL, A
BARREL OF OIL, OR A YARD OF SAND.  THE VALUE TO BE ALLOWED FOR IT IS
THE REAL BATTLEGROUND BETWEEN THE INVESTOR AND CONSUMER.  IT IS FROM
THIS PART OF THE BUSINESS THAT THE CHIEF DIFFERENCE BETWEEN THE PARTIES
AS TO A PROPER RATE BASE ARISES. 

IS IT NECESSARY TO A "REASONABLE" PRICE FOR GAS THAT IT BE ANCHORED
TO A RATE BASE OF ANY KIND?  WHY DID COURTS IN THE FIRST PLACE BEGIN
VALUING "RATE BASES" IN ORDER TO "VALUE" SOMETHING ELSE?  THE METHOD
CAME INTO VOGUE IN FIXING RATES FOR TRANSPORTATION SERVICE WHICH THE
PUBLIC OBTAINED FROM COMMON CARRIERS.  THE PUBLIC RECEIVED NONE OF THE
CARRIERS' PHYSICAL PROPERTY BUT DID MAKE SOME USE OF IT.  THE CARRIAGE
WAS OFTEN A MONOPOLY SO THERE WERE NO OPEN MARKET CRITERIA AS TO
REASONABLENESS.  THE "VALUE" OR "COST" OF WHAT WAS PUT TO USE IN THE
SERVICE BY THE CARRIER WAS NOT A REMOTE OR IRRELEVANT CONSIDERATION IN
MAKING SUCH RATES.  MOREOVER THE DIFFICULTY OF APPRAISING AN INTANGIBLE
SERVICE WAS THOUGHT TO BE SIMPLIFIED IF IT COULD BE RELATED TO PHYSICAL
PROPERTY WHICH WAS VISIBLE AND MEASURABLE AND THE ITEMS OF WHICH MIGHT
HAVE MARKET VALUE.  THE COURT HOPED TO REASON FROM THE KNOWN TO THE
UNKNOWN.  BUT GAS FIELDS TURN THIS METHOD TOPSY TURVY.  GAS ITSELF IS
TANGIBLE, POSSESSIBLE, AND DOES HAVE A MARKET AND A PRICE IN THE
FIELD.  THE VALUE OF THE RATE BASE IS MORE ELUSIVE THAN THAT OF GAS. 
IT CONSISTS OF INTANGIBLES - LEASEHOLDS AND FREEHOLDS - OPERATED AND
UNOPERATED - OF LITTLE USE IN THEMSELVES EXCEPT AS RIGHTS TO REACH AND
CAPTURE GAS.  THEIR VALUE LIES ALMOST WHOLLY IN PREDICTIONS OF
DISCOVERY, AND OF PRICE OF GAS WHEN CAPTURED, AND BEARS LITTLE RELATION
TO COST OF TOOLS AND SUPPLIES AND LABOR TO DEVELOP IT. GAS IS WHAT HOPE
SELLS AND IT CAN BE DIRECTLY PRICED MORE REASONABLY AND EASILY AND
ACCURATELY THAN THE COMPONENTS OF A RATE BASE CAN BE VALUED.  HENCE THE
REASON FOR RESORT TO A ROUNDABOUT WAY OF RATE BASE PRICE FIXING DOES
NOT EXIST IN THE CASE OF GAS IN THE FIELD. 

BUT IF FOUND, AND BY WHATEVER METHOD FOUND, A RATE BASE IS LITTLE
HELP IN DETERMINING REASONABLENESS OF THE PRICE OF GAS.  APPRAISAL OF
PRESENT VALUE OF THESE INTANGIBLE RIGHTS TO PURSUE FUGITIVE GAS DEPENDS
ON THE VALUE ASSIGNED TO THE GAS WHEN CAPTURED.  THE "PRESENT FAIR
VALUE" RATE BASE, GENERALLY IN ILL REPUTE,  FN43  IS NOT EVEN URGED BY
THE GAS COMPANY FOR VALUING ITS FIELDS. 

THE PRUDENT INVESTMENT THEORY HAS RELATIVE MERITS IN FIXING RATES FOR
A UTILITY WHICH CREATES ITS SERVICE MERELY BY ITS INVESTMENT.  THE
AMOUNT AND QUALITY OF SERVICE RENDERED BY THE USUAL UTILITY WILL, AT
LEAST ROUGHLY, BE MEASURED BY THE AMOUNT OF CAPITAL IT PUTS INTO THE
ENTERPRISE.  BUT IT HAS NO RATIONAL APPLICATION WHERE THERE IS NO SUCH
RELATIONSHIP BETWEEN INVESTMENT AND CAPACITY TO SERVE.  THERE IS NO
SUCH RELATIONSHIP BETWEEN INVESTMENT AND AMOUNT OF GAS PRODUCED.  LET
US ASSUME THAT DOE AND ROE EACH PRODUCES IN WEST VIRGINIA FOR DELIVERY
TO CLEVELAND THE SAME QUANTITY OF NATURAL GAS PER DAY.  DOE, HOWEVER,
THROUGH LUCK OR FORESIGHT OR WHATEVER IT TAKES, GETS HIS GAS FROM
INVESTING $50,000 IN LEASES AND DRILLING.  ROE DRILLED POORER
TERRITORY, GOT SMALLER WELLS, AND HAS INVESTED $250,000.  DOES ANYBODY
IMAGINE THAT ROE CAN GET OR OUGHT TO GET FOR HIS GAS FIVE TIMES AS MUCH
AS DOE BECAUSE HE HAS SPENT FIVE TIMES AS MUCH?  THE SERVICE ONE
RENDERS TO SOCIETY IN THE GAS BUSINESS IS MEASURED BY WHAT HE GETS OUT
OF THE GROUND, NOT BY WHAT HE PUTS INTO IT, AND THERE IS LITTLE MORE
RELATION BETWEEN THE INVESTMENT AND THE RESULTS THAN IN A GAME OF
POKER. 

TWO-THIRDS OF THE GAS HOPE HANDLES IT BUYS FROM ABOUT 340 INDEPENDENT
PRODUCERS.  IT IS OBVIOUS THAT THE PRINCIPLE OF RATE-MAKING APPLIED TO
HOPE'S OWN GAS CANNOT BE APPLIED, AND HAS NOT BEEN APPLIED, TO THE BULK
OF THE GAS HOPE DELIVERS.  IT IS NOT PROBABLE THAT THE INVESTMENT OF
ANY TWO OF THESE PRODUCERS WILL BEAR THE SAME RATIO TO THEIR
INVESTMENTS.  THE GAS, HOWEVER, ALL GOES TO THE SAME USE, HAS THE SAME
UTILIZATION VALUE AND THE SAME ULTIMATE PRICE. 

TO REGULATE SUCH AN ENTERPRISE BY UNDISCRIMINATINGLY TRANSPLANTING
ANY BODY OF RATE DOCTRINE CONCEIVED AND ADAPTED TO THE ORDINARY UTILITY
BUSINESS CAN SERVE THE "PUBLIC INTEREST" AS THE NATURAL GAS ACT
REQUIRES, IF AT ALL, ONLY BY ACCIDENT.  MR. JUSTICE BRANDEIS, THE
PIONEER JURISTIC ADVOCATE OF THE PRUDENT INVESTMENT THEORY FOR MANMADE
UTILITIES, NEVER, SO FAR AS I AM ABLE TO DISCOVER, PROPOSED ITS
APPLICATION TO A NATURAL GAS CASE.  ON THE OTHER HAND, DISSENTING IN
PENNSYLVANIA V. WEST VIRGINIA, HE REVIEWED THE PROBLEMS OF GAS SUPPLY
AND SAID, "IN NO OTHER FIELD OF PUBLIC SERVICE REGULATION IS THE
CONTROLLING BODY CONFRONTED WITH FACTORS SO BAFFLING AS IN THE NATURAL
GAS INDUSTRY; AND IN NONE IS CONTINUOUS SUPERVISION AND CONTROL
REQUIRED IN SO HIGH A DEGREE."  262 U.S. 553, 621.  IF NATURAL GAS
RATES ARE INTELLIGENTLY TO BE REGULATED WE MUST FIT OUR LEGAL
PRINCIPLES TO THE ECONOMY OF THE INDUSTRY AND NOT TRY TO FIT THE
INDUSTRY TO OUR BOOKS. 

AS OUR DECISIONS STAND THE COMMISSION WAS JUSTIFIED IN BELIEVING THAT
IT WAS REQUIRED TO PROCEED BY THE RATE BASE METHOD EVEN AS TO GAS IN
THE FIELD.  FOR THIS REASON THE COURT MAY NOT MERELY WASH ITS HANDS OF
THE METHOD AND RATIONALE OF RATE MAKING.  THE FACT IS THAT THIS COURT,
WITH NO DISCUSSION OF ITS FITNESS, SIMPLY TRANSFERRED THE RATE BASE
METHOD TO THE NATURAL GAS INDUSTRY.  IT HAPPENED IN NEWARK NATURAL GAS
& FUEL CO. V. CITY OF NEWARK, OHIO, 242 U.S. 405(1917), IN WHICH THE
COMPANY WANTED 25 CENTS PER M.C.F., AND UNDER THE FOURTEENTH AMENDMENT
CHALLENGED THE REDUCTION TO 18 CENTS BY ORDINANCE.  THIS COURT
SUSTAINED THE REDUCTION BECAUSE THE COURT BELOW "GAVE CAREFUL
CONSIDERATION TO THE QUESTIONS OF THE VALUE OF THE PROPERTY AT THE TIME
OF THE INQUIRY," AND WHETHER THE RATE "WOULD BE SUFFICIENT TO PROVIDE A
FAIR RETURN ON THE VALUE OF THE PROPERTY."  THE COURT SAID THIS METHOD
WAS "BASED UPON PRINCIPLES THOROUGHLY ESTABLISHED BY REPEATED DECISIONS
OF THIS COURT," CITING MANY CASES, NOT ONE OF WHICH INVOLVED NATURAL
GAS OR A COMPARABLE WASTING NATURAL RESOURCE.  THEN CAME ISSUES AS TO
STATE POWER TO REGULATE AS AFFECTED BY THE COMMERCE CLAUSE.  PUBLIC
UTILITIES COMMISSION V. LANDON, 249 U.S. 236(1919); PENNSYLVANIA GAS
CO. V. PUBLIC SERVICE COMMISSION, 252 U.S. 23(1920).  THESE QUESTIONS
SETTLED, THE COURT AGAIN WAS CALLED UPON IN NATURAL GAS CASES TO
CONSIDER STATE RATE-MAKING CLAIMED TO BE INVALID UNDER THE FOURTEENTH
AMENDMENT.  UNITED FUEL GAS CO. V. RAILROAD COMMISSION OF KENTUCKY, 278
U.S. 300(1929); UNITED FUEL GAS CO. V. PUBLIC SERVICE COMMISSION OF
WEST VIRGINIA, 278 U.S. 322(1929).  THEN, AS NOW, THE DIFFERENCES WERE
"DUE CHIEFLY TO THE DIFFERENCE IN VALUE ASCRIBED BY EACH TO THE GAS
RIGHTS AND LEASEHOLDS."  278 U.S. 300, 311.  NO ONE SEEMS TO HAVE
QUESTIONED THAT THE RATE BASE METHOD MUST BE PURSUED AND THE
CONTROVERSY WAS AS TO WHAT RATE BASE MUST BE USED.  LATER THE "VALUE"
OF GAS IN THE FIELD WAS QUESTIONED IN DETERMINING THE AMOUNT A
REGULATED COMPANY SHOULD BE ALLOWED TO PAY AN AFFILIATE THEREFOR - A
STATE DETERMINATION ALSO REVIEWED UNDER THE FOURTEENTH AMENDMENT. 
DAYTON POWER & LIGHT CO. V. PUBLIC UTILITIES COMMISSION OF OHIO, 292
U.S. 290(1934); COLUMBUS GAS & FUEL CO. V. PUBLIC UTILITIES COMMISSION
OF OHIO, 292 U.S. 398(1934).  IN BOTH CASES, ONE OF WHICH SUSTAINED AND
ONE OF WHICH STRUCK DOWN A FIXED RATE, THE COURT ASSUMED THE RATE BASE
METHOD AS THE LEGAL WAY OF TESTING REASONABLENESS OF NATURAL GAS PRICES
FIXED BY PUBLIC AUTHORITY, WITHOUT EXAMINING ITS REAL RELEVANCY TO THE
INQUIRY. 

UNDER THE WEIGHT OF SUCH PRECEDENTS WE CANNOT EXPECT THE COMMISSION
TO INITIATE ECONOMICALLY INTELLIGENT METHODS OF FIXING GAS PRICES.  BUT
THE COURT NOW FACES A NEW PLAN OF FEDERAL REGULATION BASED ON THE POWER
TO FIX THE PRICE AT WHICH GAS SHALL BE ALLOWED TO MOVE IN INTERSTATE
COMMERCE.  I SHOULD NOW CONSIDER WHETHER THESE RULES DEVISED UNDER THE
FOURTEENTH AMENDMENT ARE THE EXCLUSIVE TESTS OF A JUST AND REASONABLE
RATE UNDER THE FEDERAL STATUTE, INVITING REARGUMENT DIRECTED TO THAT
POINT IF NECESSARY.  AS I SEE IT NOW I WOULD BE PREPARED TO HOLD THAT
THESE RULES DO NOT APPLY TO A NATURAL GAS CASE ARISING UNDER THE
NATURAL GAS ACT. 

SUCH A HOLDING WOULD LEAVE THE COMMISSION TO FIX THE PRICE OF GAS IN
THE FIELD AS ONE WOULD FIX MAXIMUM PRICES OF OIL OR MILK OR COAL, OR
ANY OTHER COMMODITY.  SUCH A PRICE IS NOT CALCULATED TO PRODUCE A FAIR
RETURN ON THE SYNTHETIC VALUE OF A RATE BASE OF ANY INDIVIDUAL
PRODUCER, AND WOULD NOT UNDERTAKE TO ASSURE A FAIR RETURN TO ANY
PRODUCER.  THE EMPHASIS WOULD SHIFT FROM THE PRODUCER TO THE PRODUCT,
WHICH WOULD BE REGULATED WITH AN EYE TO AVERAGE OR TYPICAL PRODUCING
CONDITIONS IN THE FIELD. 

SUCH A PRICE FIXING PROCESS ON ECONOMIC LINES WOULD OFFER LITTLE
TEMPTATION TO THE JUDICIARY TO BECOME BACK SEAT DRIVERS OF THE PRICE
FIXING MACHINE.  THE UNFORTUNATE EFFECT OF JUDICIAL INTERVENTION IN
THIS FIELD IS TO DIVERT THE ATTENTION OF THOSE ENGAGED IN THE PROCESS
FROM WHAT IS ECONOMICALLY WISE TO WHAT IS LEGALLY PERMISSIBLE.  IT IS
PROBABLE THAT PRICE REDUCTIONS WOULD REACH ECONOMICALLY UNWISE AND SELF
DEFEATING LIMITS BEFORE THEY WOULD REACH CONSTITUTIONAL ONES.  ANY
CONSTITUTIONAL PROBLEMS GROWING OUT OF PRICE FIXING ARE QUITE DIFFERENT
THAN THOSE THAT HAVE HERETOFORE BEEN CONSIDERED TO INHERE IN RATE
MAKING.  A PRODUCER WOULD HAVE DIFFICULTY SHOWING THE INVALIDITY OF
SUCH A FIXED PRICE SO LONG AS HE VOLUNTARILY CONTINUED TO SELL HIS
PRODUCT IN INTERSTATE COMMERCE.  SHOULD HE WITHDRAW AND OTHER AUTHORITY
BE INVOKED TO COMPEL HIM TO PART WITH HIS PROPERTY, A DIFFERENT PROBLEM
WOULD BE PRESENTED. 

ALLOWANCE IN A RATE TO COMPENSATE FOR GAS REMOVED FROM GAS LANDS,
WHETHER FIXED AS OF POINT OF PRODUCTION OR AS OF POINT OF DELIVERY,
PROBABLY BEST CAN BE MEASURED BY A FUNCTIONAL TEST APPLIED TO THE WHOLE
INDUSTRY.  FOR GOOD OR ILL WE DEPEND UPON PRIVATE ENTERPRISE TO EXPLOIT
THESE NATURAL RESOURCES FOR PUBLIC CONSUMPTION.  THE FUNCTION WHICH AN
ALLOWANCE FOR GAS IN THE FIELD SHOULD PERFORM FOR SOCIETY IN SUCH
CIRCUMSTANCES IS TO BE ENOUGH AND NO MORE THAN ENOUGH TO INDUCE PRIVATE
ENTERPRISE COMPLETELY AND EFFICIENTLY TO UTILIZE GAS RESOURCES, TO
ACQUIRE FOR PUBLIC SERVICE ANY AVAILABLE GAS OR GAS RIGHTS AND TO
DELIVER GAS AT A RATE AND FOR USES WHICH WILL BE IN THE FUTURE AS WELL
AS IN THE PRESENT PUBLIC INTEREST. 

THE COURT FEARS THAT "IF WE ARE NOW TO TELL THE COMMISSION TO FIX THE
RATES SO AS TO DISCOURAGE PARTICULAR USES, WE WOULD INDEED BE INJECTING
INTO A RATE CASE A 'NOVEL' DOCTRINE  ...  "  WITH DUE DEFERENCE I
SUGGEST THAT THERE IS NOTHING NOVEL IN THE IDEA THAT ANY CHANGE IN
PRICE OF A SERVICE OR COMMODITY REACTS TO ENCOURAGE OR DISCOURAGE ITS
USE.  THE QUESTION IS NOT WHETHER SUCH CONSEQUENCES WILL OR WILL NOT
FOLLOW; THE QUESTION IS WHETHER EFFECTS MUST BE SUFFERED BLINDLY OR MAY
BE INTELLIGENTLY SELECTED, WHETHER PRICE CONTROL SHALL HAVE TARGETS AT
WHICH IT DELIBERATELY AIMS OR SHALL BE HANDLED LIKE A GUN IN THE HANDS
OF ONE WHO DOES NOT KNOW IT IS LOADED.    WE SHOULD RECOGNIZE "PRICE"
FOR WHAT IT IS - A TOOL, A MEANS, AN EXPEDIENT.  IN PUBLIC HANDS IT HAS
MUCH THE SAME ECONOMIC EFFECTS AS IN PRIVATE HANDS.  HOPE KNEW THAT A
CONCESSION IN INDUSTRIAL PRICE WOULD TEND TO BUILD UP ITS VOLUME OF
SALES.  IT USED PRICE AS AN EXPEDIENT TO THAT END.  THE COMMISSION
MAKES ANOTHER CUT IN THAT SAME PRICE BUT THE COURT THINKS WE SHOULD
IGNORE THE EFFECT THAT IT WILL HAVE ON EXHAUSTION OF SUPPLY.  THE FACT
IS THAT IN NATURAL GAS REGULATION PRICE MUST BE USED TO RECONCILE THE
PRIVATE PROPERTY RIGHT SOCIETY HAS PERMITTED TO VEST IN AN IMPORTANT
NATURAL RESOURCE WITH THE CLAIMS OF SOCIETY UPON IT - PRICE MUST DRAW A
BALANCE BETWEEN WEALTH AND WELFARE.    TO CARRY THIS INTO TECHNIQUES OF
INQUIRY IS THE TASK OF THE COMMISSIONER RATHER THAN OF THE JUDGE, AND
IT CERTAINLY IS NO TASK TO BE SOLVED BY MERE BOOKKEEPING BUT REQUIRES
THE BEST ECONOMIC TALENT AVAILABLE.  THERE WOULD DOUBTLESS BE INQUIRY
INTO THE PRICE GAS IS BRINGING IN THE FIELD, HOW FAR THAT PRICE IS
ESTABLISHED BY ARM'S LENGTH BARGAINING AND HOW FAR IT MAY BE INFLUENCED
BY AGREEMENTS IN RESTRAINT OF TRADE OR MONOPOLISTIC INFLUENCES.  WHAT
MUST HOPE REALLY PAY TO GET AND TO REPLACE GAS IT DELIVERS UNDER THIS
ORDER?  IF IT SHOULD GET MORE OR LESS THAN THAT FOR ITS OWN, HOW MUCH
AND WHY?  HOW FAR ARE SUCH PRICES INFLUENCED BY PIPE LINE ACCESS TO
MARKETS AND IF THE CONSUMERS PAY RETURNS ON THE PIPE LINES HOW FAR
SHOULD THE INCREMENT THEY CAUSE GO TO GAS PRODUCERS?  EAST OHIO IS
ITSELF A PRODUCER IN OHIO.  FN44  WHAT DO OHIO AUTHORITIES REQUIRE OHIO
CONSUMERS TO PAY FOR GAS IN THE FIELD?  PERHAPS THESE ARE REASONS WHY
THE FEDERAL GOVERNMENT SHOULD PUT WEST VIRGINIA GAS AT LOWER OR AT
HIGHER RATES.  IF SO WHAT ARE THEY?  SHOULD EAST OHIO BE REQUIRED TO
EXPLOIT ITS HALF MILLION ACRES OF UNOPERATED RESERVE IN OHIO BEFORE
WEST VIRGINIA RESOURCES SHALL BE SUPPLIED ON A DEVALUED BASIS OF WHICH
THAT STATE COMPLAINS AND FOR WHICH SHE THREATENS MEASURES OF SELF
KEEP?  WHAT IS GAS WORTH IN TERMS OF OTHER FUELS IT DISPLACES? 

A PRICE CANNOT BE FIXED WITHOUT CONSIDERING ITS EFFECT ON THE
PRODUCTION OF GAS.  IS IT AN INCENTIVE TO CONTINUE TO EXPLOIT VAST
UNOPERATED RESERVES?  IS IT CONDUCIVE TO DEEP DRILLING TESTS THE RESULT
OF WHICH WE MAY KNOW ONLY AFTER TRIAL?  WILL IT INDUCE BRINGING GAS
FROM AFAR TO SUPPLEMENT OR EVEN TO SUBSTITUTE FOR APPALACHIAN GAS? 
FN45  CAN IT BE HAD FROM DISTANT FIELDS AS CHEAP OR CHEAPER?  IF SO,
THAT COMPETITIVE POTENTIALITY IS CERTAINLY A RELEVANT CONSIDERATION. 
WISE REGULATION MUST ALSO CONSIDER, AS A PRIVATE BUYER WOULD, WHAT
ALTERNATIVES THE PRODUCER HAS IF THE PRICE IS NOT ACCEPTABLE.  HOPE HAS
INTRASTATE BUSINESS AND DOMESTIC AND INDUSTRIAL CUSTOMERS.  WHAT CAN IT
DO BY WAY OF DIVERTING ITS SUPPLY TO INTRASTATE SALES?  WHAT CAN IT DO
BY WAY OF DISPOSING OF ITS OPERATED OR RESERVE ACREAGE TO INDUSTRIAL
CONCERNS OR OTHER BUYERS?  WHAT CAN WEST VIRGINIA DO BY WAY OF
CONSERVATION LAWS, SEVERANCE OR OTHER TAXATION, IF THE REGULATED RATE
OFFENDS?  IT MUST BE BORNE IN MIND THAT WHILE WEST VIRGINIA WAS
PROHIBITED FROM GIVING HER OWN INHABITANTS A PRIORITY THAT
DISCRIMINATED AGAINST INTERSTATE COMMERCE, WE HAVE NEVER YET HELD THAT
A GOOD FAITH CONSERVATION ACT, APPLICABLE TO HER OWN, AS WELL AS TO
OTHERS, IS NOT VALID.  IN CONSIDERING ALTERNATIVES, IT MUST BE NOTED
THAT FEDERAL REGULATION IS VERY INCOMPLETE, EXPRESSLY EXCLUDING
REGULATION OF "PRODUCTION OR GATHERING OF NATURAL GAS," AND THAT THE
ONLY PRESENT WAY TO GET THE GAS SEEMS TO BE TO CALL IT FORTH BY PRICE
INDUCEMENTS.  IT IS PLAIN THAT THERE IS A DOWNWARD ECONOMIC LIMIT ON A
SAFE AND WISE PRICE. 

BUT THERE IS NOTHING IN THE LAW WHICH COMPELS A COMMISSION TO FIX A
PRICE AT THAT "VALUE" WHICH A COMPANY MIGHT GIVE TO ITS PRODUCT BY
TAKING ADVANTAGE OF SCARCITY, OR MONOPOLY OF SUPPLY.  THE VERY PURPOSE
OF FIXING MAXIMUM PRICES IS TO TAKE AWAY FROM THE SELLER HIS
OPPORTUNITY TO GET ALL THAT OTHERWISE THE MARKET WOULD AWARD HIM FOR
HIS GOODS.  THIS IS A CONSTITUTIONAL USE OF THE POWER TO FIX MAXIMUM
PRICES, BLOCK V. HIRSH, 256 U.S. 135; MARCUS BROWN HOLDING CO. V.
FELDMAN, 256 U.S. 170; INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234
U.S. 216; HIGHLAND V. RUSSELL CAR & SNOW PLOW CO., 279 U.S. 253, JUST
AS THE FIXING OF MINIMUM PRICES OF GOODS IN INTERSTATE COMMERCE IS
CONSTITUTIONAL ALTHOUGH IT TAKES AWAY FROM THE BUYER THE ADVANTAGE IN
BARGAINING WHICH MARKET CONDITIONS WOULD GIVE HIM.  UNITED STATES V.
DARBY, 312 U.S. 100; MULFORD V. SMITH, 307 U.S. 38; UNITED STATES V.
ROCK ROYAL COOPERATIVE, 307 U.S. 533; SUNSHINE ANTHRACITE COAL CO. V.
ADKINS, 310 U.S. 381.  THE COMMISSION HAS POWER TO FIX A PRICE THAT
WILL BE BOTH MAXIMUM AND MINIMUM AND IT HAS THE INCIDENTAL RIGHT, AND I
THINK THE DUTY, TO CHOOSE THE ECONOMIC CONSEQUENCES IT WILL PROMOTE OR
RETARD IN PRODUCTION AND ALSO MORE IMPORTANTLY IN CONSUMPTION, TO WHICH
I NOW TURN. 

IF WE ASSUME THAT THE REDUCTION IN COMPANY REVENUES IS WARRANTED WE
THEN COME TO THE QUESTION OF TRANSLATING THE ALLOWED RETURN INTO RATES
FOR CONSUMERS OR CLASSES OF CONSUMERS.  HERE THE COMMISSION FIXED A
SINGLE RATE FOR ALL GAS DELIVERED IRRESPECTIVE OF ITS USE DESPITE THE
FACT THAT HOPE HAS ESTABLISHED WHAT AMOUNTS TO TWO RATES - A HIGH ONE
FOR DOMESTIC USE AND A LOWER ONE FOR INDUSTRIAL CONTRACTS.  FN46  THE
COMMISSION CAN FIX TWO PRICES FOR INTERSTATE GAS AS READILY AS ONE - A
PRICE FOR RESALE TO DOMESTIC USERS AND ANOTHER FOR RESALE TO INDUSTRIAL
USERS.  THIS IS THE PATTERN HOPE ITSELF HAS ESTABLISHED IN THE VERY
CONTRACTS OVER WHICH THE COMMISSION IS EXPRESSLY GIVEN JURISDICTION. 
CERTAINLY THE ACT IS BROAD ENOUGH TO PERMIT TWO PRICES TO BE FIXED
INSTEAD OF ONE, IF THE CONCEPT OF THE "PUBLIC INTEREST" IS NOT UNDULY
NARROWED. 

THE COMMISSION'S CONCEPT OF THE PUBLIC INTEREST IN NATURAL GAS CASES
WHICH IS CARRIED TODAY INTO THE COURT'S OPINION WAS FIRST ANNOUNCED IN
THE OPINION OF THE MINORITY IN THE PIPELINE CASE.  IT ENUMERATED ONLY
TWO "PHASES OF THE PUBLIC INTEREST:  (1) THE INVESTOR INTEREST; (2) THE
CONSUMER INTEREST," WHICH IT EMPHASIZED TO THE EXCLUSION OF ALL
OTHERS.  315 U.S. 575, 606.  THIS WILL DO WELL ENOUGH IN DEALING WITH
RAILROADS OR UTILITIES SUPPLYING MANUFACTURED GAS, ELECTRIC POWER, A
COMMUNICATIONS SERVICE OR TRANSPORTATION, WHERE UTILIZATION OF
FACILITIES DOES NOT IMPAIR THEIR FUTURE USEFULNESS.  LIMITATION OF
SUPPLY, HOWEVER, BRINGS INTO A NATURAL GAS CASE ANOTHER PHASE OF THE
PUBLIC INTEREST THAT TO MY MIND OVERRIDES BOTH THE OWNER AND THE
CONSUMER OF THAT INTEREST.  BOTH PRODUCERS AND INDUSTRIAL CONSUMERS
HAVE SERVED THEIR IMMEDIATE PRIVATE INTERESTS AT THE EXPENSE OF THE
LONG-RANGE PUBLIC INTEREST.  THE PUBLIC INTEREST, OF COURSE, REQUIRES
STOPPING UNJUST ENRICHMENT OF THE OWNER.  BUT IT ALSO REQUIRES STOPPING
UNJUST IMPOVERISHMENT OF FUTURE GENERATIONS.  THE PUBLIC INTEREST IN
THE USE BY HOPE'S HALF MILLION DOMESTIC CONSUMERS IS QUITE A DIFFERENT
ONE FROM THE PUBLIC INTEREST IN USE BY A BAKER'S DOZEN OF INDUSTRIES. 

PRUDENT PRICE FIXING IT SEEMS TO ME MUST AT THE VERY THRESHOLD
DETERMINE WHETHER ANY PART OF AN ALLOWED RETURN SHALL BE PERMITTED TO
BE REALIZED FROM SALES OF GAS FOR RESALE FOR INDUSTRIAL USE.  SUCH USE
DOES TEND TO LEVEL OUT DAILY AND SEASONAL PEAKS OF DOMESTIC DEMAND AND
TO SOME EXTENT PERMITS A LOWER CHARGE FOR DOMESTIC SERVICE.  BUT IS
THAT A WISE WAY OF MAKING GAS CHEAPER WHEN, IN COMPARISON WITH ANY
SUBSTITUTE, GAS IS ALREADY A CHEAP FUEL?  THE INTERSTATE SALES
CONTRACTS PROVIDE THAT AT TIMES WHEN DEMAND IS SO GREAT THAT THERE IS
NOT ENOUGH GAS TO GO AROUND DOMESTIC USERS SHALL FIRST BE SERVED. 
SHOULD THE OPERATION OF THIS PREFERENCE AWAIT THE DAY OF ACTUAL
SHORTAGE?  SINCE THE PROPRIETY OF A PREFERENCE SEEMS CONCEDED, SHOULD
IT NOT OPERATE TO PREVENT THE COMING OF A SHORTAGE AS WELL AS TO
MITIGATE ITS EFFECTS?  SHOULD INDUSTRIAL USE JEOPARDIZE TOMORROW'S
SERVICE TO HOUSEHOLDERS ANY MORE THAN TODAY'S?  IF, HOWEVER, IT IS
DECIDED TO CHEAPEN DOMESTIC USE BY RESORT TO INDUSTRIAL SALES, SHOULD
THEY BE LIMITED TO THE FEW USES FOR WHICH GAS HAS SPECIAL VALUES OR
EXTEND ALSO TO THOSE WHO USE IT ONLY BECAUSE IT IS CHEAPER THAN
COMPETITIVE FUELS?  FN47  AND HOW MUCH CHEAPER SHOULD INDUSTRIAL GAS
SELL THAN DOMESTIC GAS, AND HOW MUCH ADVANTAGE SHOULD IT HAVE OVER
COMPETITIVE FUELS?  IF INDUSTRIAL GAS IS TO CONTRIBUTE AT ALL TO
LOWERING DOMESTIC RATES, SHOULD IT NOT BE MADE TO CONTRIBUTE THE VERY
MAXIMUM OF WHICH IT IS CAPABLE, THAT IS, SHOULD NOT ITS PRICE BE THE
HIGHEST AT WHICH THE DESIRED VOLUME OF SALES CAN BE REALIZED? 

IF I WERE TO ANSWER I SHOULD SAY THAT THE HOUSEHOLD RATE SHOULD BE
THE LOWEST THAT CAN BE FIXED UNDER COMMERCIAL CONDITIONS THAT WILL
CONSERVE THE SUPPLY FOR THAT USE.  THE LOWEST PROBABLE RATE FOR THAT
PURPOSE IS NOT LIKELY TO SPEED EXHAUSTION MUCH, FOR IT STILL WILL BE
HIGH ENOUGH TO INDUCE ECONOMY, AND USE FOR THAT PURPOSE HAS MORE NEARLY
REACHED THE SATURATION POINT.  ON THE OTHER HAND THE DEMAND FOR
INDUSTRIAL GAS AT PRESENT RATES ALREADY APPEARS TO BE INCREASING.  TO
LOWER FURTHER THE INDUSTRIAL RATE IS MERELY FURTHER TO SUBSIDIZE
INDUSTRIAL CONSUMPTION AND SPEED DEPLETION.  THE IMPACT OF THE FLAT
REDUCTION OF RATES ORDERED HERE ADMITTEDLY WILL BE TO INCREASE THE
INDUSTRIAL ADVANTAGES OF GAS OVER COMPETING FUELS AND TO INCREASE ITS
USE.  I THINK THIS IS NOT, AND THERE IS NO FINDING BY THE COMMISSION
THAT IT IS, IN THE PUBLIC INTEREST. 

THERE IS NO JUSTIFICATION IN THIS RECORD FOR THE PRESENT
DISCRIMINATION AGAINST DOMESTIC USERS OF GAS IN FAVOR OF INDUSTRIAL
USERS.  IT IS ONE OF THE EVILS AGAINST WHICH THE NATURAL GAS ACT WAS
AIMED BY CONGRESS AND ONE OF THE EVILS COMPLAINED OF HERE BY CLEVELAND
AND AKRON.  IF HOPE'S REVENUES SHOULD BE CUT BY SOME $3,600,000 THE
WHOLE REDUCTION IS OWING TO DOMESTIC USERS.  IF IT BE CONSIDERED WISE
TO RAISE PART OF HOPE'S REVENUES BY INDUSTRIAL PURPOSE SALES, THE
UTMOST POSSIBLE REVENUE SHOULD BE RAISED FROM THE LEAST CONSUMPTION OF
GAS.  IF COMPETITIVE RELATIONSHIPS TO OTHER FUELS WILL PERMIT, THE
INDUSTRIAL PRICE SHOULD BE SUBSTANTIALLY ADVANCED, NOT FOR THE BENEFIT
OF THE COMPANY, BUT THE INCREASED REVENUES FROM THE ADVANCE SHOULD BE
APPLIED TO REDUCE DOMESTIC RATES.  FOR IN MY OPINION THE "PUBLIC
INTEREST" REQUIRES THAT THE GREAT VOLUME OF GAS NOW BEING PUT TO
UNECONOMIC INDUSTRIAL USE SHOULD EITHER BE SAVED FOR ITS MORE IMPORTANT
FUTURE DOMESTIC USE OR THE PRESENT DOMESTIC USER SHOULD HAVE THE FULL
BENEFIT OF ITS EXCHANGE VALUE IN REDUCING HIS PRESENT RATES. 

OF COURSE THE COMMISSION'S POWER DIRECTLY TO REGULATE DOES NOT EXTEND
TO THE FIXING OF RATES AT WHICH THE LOCAL COMPANY SHALL SELL TO
CONSUMERS.  NOR IS SUCH POWER REQUIRED TO ACCOMPLISH THE PURPOSE.  AS
ALREADY POINTED OUT, THE VERY CONTRACT THE COMMISSION IS ALTERING
CLASSIFIES THE GAS ACCORDING TO THE PURPOSES FOR WHICH IT IS TO BE
RESOLD AND PROVIDES DIFFERENTIALS BETWEEN THE TWO CLASSIFICATIONS.  IT
WOULD ONLY BE NECESSARY FOR THE COMMISSION TO ORDER THAT ALL GAS
SUPPLIED UNDER PARAGRAPH (A) OF HOPE'S CONTRACT WITH THE EAST OHIO
COMPANY SHALL BE AT A STATED PRICE FIXED TO GIVE TO DOMESTIC SERVICE
THE ENTIRE REDUCTION HEREIN AND ANY FURTHER REDUCTIONS THAT MAY PROVE
POSSIBLE BY INCREASING INDUSTRIAL RATES.  IT MIGHT FURTHER PROVIDE THAT
GAS DELIVERED UNDER PARAGRAPH (B) OF THE CONTRACT FOR INDUSTRIAL
PURPOSES TO THOSE INDUSTRIAL CUSTOMERS HOPE HAS APPROVED IN WRITING
SHALL BE AT SUCH OTHER FIGURE AS MIGHT BE FOUND CONSISTENT WITH THE
PUBLIC INTEREST AS HEREIN DEFINED.  IT IS TOO LATE IN THE DAY TO
CONTEND THAT THE AUTHORITY OF A REGULATORY COMMISSION DOES NOT EXTEND
TO A CONSIDERATION OF PUBLIC INTERESTS WHICH IT MAY NOT DIRECTLY
REGULATE AND A CONDITIONING OF ITS ORDERS FOR THEIR PROTECTION. 
INTERSTATE COMMERCE COMMISSION V. RAILWAY LABOR EXECUTIVES ASSN., 315
U.S. 373; UNITED STATES V. LOWDEN, 308 U.S. 225. 

WHETHER THE COMMISSION WILL ASSERT ITS APPARENTLY BROAD STATUTORY
AUTHORIZATION OVER PRICES AND DISCRIMINATIONS IS, OF COURSE, ITS OWN
AFFAIR, NOT OURS.  IT IS ENTITLED TO ITS OWN NOTION OF THE "PUBLIC
INTEREST" AND ITS JUDGMENT OF POLICY MUST PREVAIL.  HOWEVER, WHERE
THERE IS GROUND FOR THINKING THAT VIEWS OF THIS COURT MAY HAVE
CONSTRAINED THE COMMISSION TO ACCEPT THE RATE-BASE METHOD OF DECISION
AND A PARTICULAR SINGLE FORMULA AS "ALL IMPORTANT" FOR A RATE BASE, IT
IS APPROPRIATE TO MAKE CLEAR THE REASONS WHY I, AT LEAST, WOULD NOT BE
SO UNDERSTOOD.  THE COMMISSION IS FREE TO FACE UP REALISTICALLY TO THE
NATURE AND PECULIARITY OF THE RESOURCES IN ITS CONTROL, TO FOSTER THEIR
DURATION IN FIXING PRICE, AND TO CONSIDER FUTURE INTERESTS IN ADDITION
TO THOSE OF INVESTORS AND PRESENT CONSUMERS.  IF WE RETURN THIS CASE IT
MAY ACCEPT OR DECLINE THE PROFFERED FREEDOM.  THIS PROBLEM PRESENTS THE
COMMISSION AN UNPRECEDENTED OPPORTUNITY IF IT WILL BOLDLY MAKE SOUND
ECONOMIC CONSIDERATIONS, INSTEAD OF LEGAL AND ACCOUNTING THEORIES, THE
FOUNDATION OF FEDERAL POLICY.  I WOULD RETURN THE CASE TO THE
COMMISSION AND THEREBY BE CLEARLY QUIT OF WHAT NOW MAY APPEAR TO BE
SOME RESPONSIBILITY FOR PERPETRATING A SHORT-SIGHTED PATTERN OF NATURAL
GAS REGULATION. 

FN1  315 U.S. 575. 

FN2  JUDGE DOBIE, DISSENTING BELOW, POINTED OUT THAT THE MAJORITY
OPINION IN THE PIPELINE CASE "CONTAINS NO EXPRESS DISCUSSION OF THE
PRUDENT INVESTMENT THEORY" AND THAT THE CONCURRING OPINION CONTAINED A
CLEAR ONE, AND SAID, "IT IS DIFFICULT FOR ME TO BELIEVE THAT THE
MAJORITY OF THE SUPREME COURT, BELIEVING OTHERWISE, WOULD LEAVE SUCH A
STATEMENT UNCHALLENGED."  THE FACT THAT TWO OTHER JUSTICES HAD AS
MATTER OF RECORD IN OUR BOOKS LONG OPPOSED THE REPRODUCTION COST THEORY
OF RATE BASES AND HAD COMMENTED FAVORABLY ON THE PRUDENT INVESTMENT
THEORY MAY HAVE INFLUENCED THAT CONCLUSION.  SEE OPINION OF MR. JUSTICE
FRANKFURTER IN DRISCOLL V. EDISON LIGHT & POWER CO., 307 U.S. 104, 122,
AND MY BRIEF AS SOLICITOR GENERAL IN THAT CASE.  IT SHOULD BE NOTED,
HOWEVER, THAT THESE STATEMENTS WERE MADE, NOT IN A NATURAL GAS CASE,
BUT IN AN ELECTRIC POWER CASE - A VERY IMPORTANT DISTINCTION, AS I
SHALL TRY TO MAKE PLAIN.    FN3  NATURAL GAS FROM THE APPALACHIAN FIELD
AVERAGES ABOUT 1,050 TO 1,150 B.T.U. CONTENT, WHILE BY-PRODUCT
MANUFACTURED GAS IS ABOUT 530 TO 540.  MOODY'S MANUAL OF PUBLIC
UTILITIES (1943) 1,350; YOUNGBERG, NATURAL GAS (1930) 7. 

FN4  SEN. REP. NO. 1162, 75TH CONG., 1ST SESS., 2. 

FN5  ARNOLD AND KEMNITZER, PETROLEUM IN THE UNITED STATES AND
POSSESSIONS (1931) 78. 

FN6  ID. AT 62-63.    FN7  ID., AT 61. 

FN8  AT FREDONIA, NEW YORK, IN 1821, NATURAL GAS WAS CONVEYED FROM A
SHALLOW WELL TO SOME THIRTY PEOPLE.  THE LIGHTHOUSE AT BARCELONA
HARBOR, NEAR WHAT IS NOW WESTFIELD, NEW YORK, WAS AT ABOUT THAT TIME
AND FOR MANY YEARS AFTERWARD LIGHTED BY GAS THAT ISSUED FROM A
CREVICE.  REPORT ON UTILITY CORPORATIONS BY FEDERAL TRADE COMMISSION,
SEN. DOC. 92, PT. 84-A, 73TH CONG., 1ST SESS., 8-9. 

FN9  IN THAT YEAR PENNSYLVANIA ENACTED "AN ACT TO PROVIDE FOR THE
INCORPORATION AND REGULATION OF NATURAL GAS COMPANIES."  PENN.  LAWS
1885, NO. 32. 

FN10  SEE STEPTOE AND HOFFHEIMER'S MEMORANDUM FOR GOVERNOR CORNWELL
OF WEST VIRGINIA (1917) 25 WEST VIRGINIA LAW QUARTERLY 257; SEE ALSO
REPORT ON UTILITY CORPORATIONS BY FEDERAL TRADE COMMSSION, SEN. DOC.
NO. 92, PT. 84-A, 70TH CONG., 1ST SESS. 

FN11  ARNOLD AND KEMNITZER, PETROLEUM IN THE UNITED STATES AND
POSSESSIONS (1931) 73. 

FN12  ID. AT 63. 

FN13  ID. AT 64. 

FN14  SEE REPORT ON UTILITY CORPORATIONS BY FEDERAL TRADE COMMISSION,
SEN. DOC. NO. 92, PT. 84-A, 70TH CONG., 1ST SESS. 

FN15  PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553.  FOR CONDITIONS
THERE WHICH PROVOKED THIS LEGISLATION, SEE 25 WEST VIRGINIA LAW
QUARTERLY 257. 

FN16  PEOPLE EX REL. PAVILION GAS CO. V. PUBLIC SERVICE COMMISSION,
188 APP. DIV. 36, 176 N.Y.S. 163. 

FN17  VILLAGE OF FALCONER V. PENNSYLVANIA GAS CO., 17 STATE
DEPARTMENT REPORTS (N.Y.)  407. 

FN18  SEE, FOR EXAMPLE, PUBLIC SERVICE COMMISSION V. IROQUOIS NATURAL
GAS CO., 108 MISC. 696, 178 N.Y.S. 24; PARK ABBOTT REALTY CO. V.
IROQUOIS GAS CO., 102 MISC. 266, 168 N.Y.S. 673; PUBLIC SERVICE
COMMISSION V. IROQUOIS NATURAL GAS CO., 189 APP. DIV. 545, 179 N.Y.S.
230. 

FN19  PEOPLE EX REL. PENNSYLVANIA GAS CO. V. PUBLIC SERVICE
COMMISSION, 196 APP. DIV. 514, 189 N.Y.S. 478. 

FN20  EAST OHIO GAS CO. V. AKRON, 81 OHIO ST. 33, 90 N.E. 40;
NEWCOMERSTOWN V. CONSOLIDATED GAS CO., 100 OHIO ST. 494, 127 N.E. 414;
GRESS V. VILLAGE OF FT. LORAMIE, 100 OHIO ST. 35, 125 N.E. 112;
JAMESTOWN V. PENNSYLVANIA GAS CO., 263 F. 437, 264 F. 1009.  SEE ALSO
UNITED FUEL GAS CO. V. RAILROAD COMMISSION, 278 U.S. 300, 308. 

FN21  THE NEW YORK PUBLIC SERVICE COMMISSION SAID:  "WHILE THE
TRANSPORTATION OF NATURAL GAS THROUGH PIPE LINES FROM ONE STATE TO
ANOTHER STATE IS INTERSTATE COMMERCE  ...  , CONGRESS HAS NOT TAKEN
OVER THE REGULATION OF THAT PARTICULAR INDUSTRY.  INDEED, IT HAS
EXPRESSLY EXCEPTED IT FROM THE OPERATION OF THE INTERSTATE COMMERCE
COMMISSIONS LAW (INTERSTATE COMMERCE COMMISSIONS LAW, SECTION 1).  IT
IS QUITE CLEAR, THEREFORE, THAT THIS COMMISSION CAN NOT REQUIRE A
PENNSYLVANIA CORPORATION PRODUCING GAS IN PENNSYLVANIA TO TRANSPORT IT
AND DELIVER IT IN THE STATE OF NEW YORK, AND THAT THE INTERSTATE
COMMERCE COMMISSION IS LIKEWISE POWERLESS.  IF THERE EXISTS SUCH A
POWER, AND IT SEEMS THAT THERE DOES, IT IS A POWER VESTED IN CONGRESS
AND BY IT NOT YET EXERCISED.  THERE IS NO AVAILABLE SOURCE OF SUPPLY
FOR THE CRYSTAL CITY COMPANY AT PRESENT EXCEPT THROUGH PURCHASING FROM
THE POTTER GAS COMPANY.  IT IS POSSIBLE THAT THIS COMMISSION MIGHT FIX
A PRICE AT WHICH THE POTTER GAS COMPANY SHOULD SELL IF IT SOLD AT ALL,
BUT AS THE COMMISSION CAN NOT REQUIRE IT TO SUPPLY GAS IN THE STATE OF
NEW YORK, THE EXERCISE OF SUCH A POWER TO FIX THE PRICE, IF SUCH POWER
EXISTS, WOULD MERELY SAY, SELL AT THIS PRICE OR KEEP OUT OF THE
STATE."  LANE V. CRYSTAL CITY GAS CO., 8 NEW YORK PUBLIC SERVICE COMM.
REPORTS, SECOND DISTRICT, 210, 212. 

FN22  PROCLAMATION BY THE PRESIDENT OF SEPTEMBER 16, 1918; RULES AND
REGULATIONS OF H.A. GARFIELD, FUEL ADMINISTRATOR, SEPTEMBER 24, 1918. 

FN23  FOR EXAMPLE, THE IROQUOIS GAS CORPORATION WHICH FORMERLY SERVED
BUFFALO, NEW YORK, WITH NATURAL GAS RANGING FROM 1050 TO 1150 B.T.U.
PER CU. FT., NOW MIXES A BY-PRODUCT GAS OF BETWEEN 530 AND 540 B.T.U.
IN PROPORTIONS TO PROVIDE A MIXED GAS OF ABOUT 900 B.T.U. PER CU. FT.
FOR SPACE HEATING OR WATER HEATING ITS CHARGES RANGE FROM 65 CENTS FOR
THE FIRST 10 M.C.F. PER MONTH TO 55 CENTS FOR ALL ABOVE 25 M.C.F. PER
MONTH.  MOODY'S MANUAL OF PUBLIC UTILITIES (1943) 1350. 

FN24  THE UNITED STATES FUEL ADMINISTRATION MADE THE FOLLOWING
COOKING VALUE COMPARISONS, BASED ON TESTS MADE IN THE DEPARTMENT OF
HOME ECONOMICS OF OHIO STATE UNIVERSITY: 

NATURAL GAS AT 1.12 PER M. IS EQUIVALENT TO COAL AT $6.50 PER TON. 

NATURAL GAS AT 2.00 PER M. IS EQUIVALENT TO GASOLINE AT 27[ PER GAL. 

NATURAL GAS AT 2.20 PER M. IS EQUIVALENT TO ELECTRICITY AT 3[ PER
K.W.H. 

NATURAL GAS AT 2.40 PER M. IS EQUIVALENT TO COAL OIL AT 15[ PER GAL. 

USE AND CONSERVATION OF NATURAL GAS, ISSUED BY U.S. FUEL
ADMINISTRATION (1918) 5. 

FN25  SEE BRIEF ON BEHALF OF LEGISLATION IMPOSING AN EXCISE TAX ON
NATURAL GAS, SUBMITTED TO N.R.A. BY THE UNITED MINE WORKERS OF AMERICA
AND THE NATIONAL COAL ASSOCIATION. 

FN26  BRIEF OF NATIONAL GAS ASSOCIATION AND UNITED MINE WORKERS,
SUPRA NOTE 26, PP. 35, 36, COMPILED FROM BUREAU OF MINES REPORTS. 

FN27  FROM THE SOURCE QUOTED IN THE PRECEDING NOTE THE SPREAD
ELSEWHERE IS SHOWN TO BE: 

STATE                   INDUSTRIAL    DOMESTIC 

ILLINOIS ................          29.2       1.678 

LOUISIANA ...............          10.4      59.7 

OKLAHOMA ................  11.2      41.5 

TEXAS ...................          13.1   59.7 

ALABAMA .................          17.8       1.227 

GEORGIA .................          22.9       1.043 

FN28  IN CORNING, NEW YORK, RATES WERE INITIATED BY THE CRYSTAL CITY
GAS COMPANY AS FOLLOWS: 70[ FOR THE FIRST 5,000 CU. FT. PER MONTH; 80[
FROM 5,000 TO 12,000; $1.00 FOR ALL OVER 12,000.  THE PUBLIC SERVICE
COMMISSION REJECTED THESE RATES AND FIXED A FLAT RATE OF 58[ PER M.C.F.
LANE V. CRYSTAL CITY GAS CO., 8 NEW YORK PUBLIC SERVICE COMM. REPORTS,
SECOND DISTRICT, 210. 

THE PENNSYLVANIA GAS COMPANY (NATIONAL FUEL GAS COMPANY GROUP) ALSO
ATTEMPTED A SLIDING SCALE RATE FOR NEW YORK CONSUMERS, NET PER MONTH AS
FOLLOWS:  FIRST 5,000 FEET, 35[; SECOND 5,000 FEET, 45[; THIRD 5,000
FEET, 50[; ALL ABOVE 15,000, 55[.  THIS WAS EVENTUALLY ABANDONED,
HOWEVER.  THE COMPANY'S PRESENT SCALE IN PENNSYLVANIA APPEARS TO BE
REVERSED TO THE FOLLOWING NET MONTHLY RATE: FIRST 3 M.C.F., 75[; NEXT 4
M.C.F., 60[; NEXT 8 M.C.F., 55[; OVER 15 M.C.F., 50[.  MOODY'S MANUAL
OF PUBLIC UTILITIES (1943) 1350.  IN NEW YORK IT NOW SERVES A MIXED
GAS. 

FOR A STUDY OF EFFECT OF SLIDING SCALE RATES IN REDUCING CONSUMPTION
SEE 11 PROCEEDINGS OF NATURAL GAS ASSOCIATION OF AMERICA (1919) 287. 

FN29  SEE REPORT ON UTILITY CORPORATIONS BY FEDERAL TRADE COMMISSION,
SEN. DOC. 92, PT. 84-A, 70TH CONG., 1ST SESS. 

FN30  FOUR HOLDING COMPANY SYSTEMS CONTROL OVER 55 PER CENT OF ALL
NATURAL GAS TRANSMISSION LINES IN THE UNITED STATES.  THEY ARE COLUMBIA
GAS AND ELECTRIC CORPORATION, CITIES SERVICE CO., ELECTRIC BOND AND
SHARE CO., AND STANDARD OIL CO. OF NEW JERSEY.  COLUMBIA ALONE CONTROLS
NEARLY 25 PER CENT, AND FIFTEEN COMPANIES ACCOUNT FOR OVER 80 PER CENT
OF THE TOTAL.  REPORT ON UTILITY CORPORATIONS BY FEDERAL TRADE
COMMISSION, SEN. DOC. 92, PT. 84-A, 70TH CONG., 1ST SESS., 28. 

IN 1915, SO IT WAS REPORTED TO THE GOVERNOR OF WEST VIRGINIA, 87 PER
CENT OF THE TOTAL GAS PRODUCTION OF THAT STATE WAS UNDER CONTROL OF
EIGHT COMPANIES.  STEPTOE AND HOFFHEIMER, LEGISLATIVE REGULATION OF
NATURAL GAS SUPPLY IN WEST VIRGINIA, 17 WEST VIRGINIA LAW QUARTERLY
257, 260.  OF THESE, THREE WERE SUBSIDIARIES OF THE COLUMBIA SYSTEM AND
OTHERS WERE SUBSIDIARIES OF LARGER SYSTEMS.  IN VIEW OF INTERSYSTEM
SALES AND INTERLOCKING INTERESTS IT MAY BE DOUBTED WHETHER THERE IS
MUCH REAL COMPETITION AMONG THESE COMPANIES. 

FN31  THIS PATTERN WITH ITS EFFECTS ON LOCAL REGULATORY EFFORTS WILL
BE OBSERVED IN OUR DECISIONS.  SEE UNITED FUEL GAS CO. V. RAILROAD
COMMISSION, 278 U.S. 300; UNITED FUEL GAS CO. V. PUBLIC SERVICE
COMMISSION, 278 U.S. 322; DAYTON POWER & LIGHT CO. V. PUBLIC UTILITIES
COMMISSION, 292 U.S. 290; COLUMBUS GAS & FUEL CO. V. PUBLIC UTILITIES
COMMISSION, 292 U.S. 398, AND THE PRESENT CASE. 

FN32  15 U.S.C. SEC. 717(A). 

FN33  SEC. 7(C), 52 STAT. 825. 

FN34  15 U.S.C. SEC. 717F. 

FN35  ID., SEC. 717C (E). 

FN36  ID., SEC. 717C (B). 

FN37  ID., SEC. 717D (A). 

FN38  SEN. REP. NO. 1162, 75TH CONG., 1ST SESS., 2. 

FN39  THE LIST OF EAST OHIO GAS COMPANY'S SPECIAL INDUSTRIAL
CONTRACTS THUS EXPRESSLY UNDER HOPE'S CONTROL AND THEIR DEMANDS ARE AS
FOLLOWS:

           CUSTOMER       ORDINARY DAILY REQUIREMENTS. 

REPUBLIC STEEL CORPORATION ........               15,000,000 CU.FT. 

OTIS STEEL COMPANY ................              10,000,000 

TIMKEN ROLLER BEARING CO ..........               7,500,000 

YOUNGSTOWN SHEET & TUBE CO ........               7,000,000 

U.S. STEEL CORP. - SUBSIDIARIES ...               6,500,000 

GENERAL ELECTRIC COMPANY ..........               2,500,000 

PITTSBURGH PLATE GLASS CO .........               2,000,000 

NILES ROLLING MILL COMPANY ........               1,500,000 

CHASE BRASS & COPPER COMPANY ......                700,000 

U.S. ALUMINUM COMPANY .............                 400,000 

MAHONING VALLEY STEEL COMPANY .....                 400,000 

BABCOCK & WILCOX COMPANY ..........                 400,000 

CANTON STAMPING & ENAMELING CO ....                350,000 

FN40  TO MAKE A FETISH OF MERE ACCOUNTING IS TO SHIELD FROM
EXAMINATION THE DEEPER CAUSES, FORCES, MOVEMENTS, AND CONDITIONS WHICH
SHOULD GOVERN RATES.  EVEN AS A RECORDING OF CURRENT TRANSACTIONS,
BOOKKEEPING IS HARDLY AN EXACT SCIENCE.  AS A REPRESENTATION OF THE
CONDITION AND TREND OF A BUSINESS, IT USES SYMBOLS OF CERTAINTY TO
EXPRESS VALUES THAT ACTUALLY ARE IN CONSTANT FLUX.  IT MAY BE SAID THAT
IN COMMERCIAL OR INVESTMENT BANKING OR ANY BUSINESS EXTENDING CREDIT
SUCCESS DEPENDS ON KNOWING WHAT NOT TO BELIEVE IN ACCOUNTING.  FEW
CONCERNS GO INTO BANKRUPTCY OR REORGANIZATION WHOSE BOOKS DO NOT SHOW
THEM SOLVENT AND OFTEN EVEN PROFITABLE.  IF ONE CANNOT RELY ON
ACCOUNTANCY ACCURATELY TO DISCLOSE PAST OR CURRENT CONDITIONS OF A
BUSINESS, THE FALLACY OF USING IT AS A SOLE GUIDE TO FUTURE PRICE
POLICY OUGHT TO BE APPARENT.  HOWEVER, OUR QUEST FOR CERTITUDE IS SO
ARDENT THAT WE PAY AN IRRATIONAL REVERENCE TO A TECHNIQUE WHICH USES
SYMBOLS OF CERTAINTY, EVEN THOUGH EXPERIENCE AGAIN AND AGAIN WARNS US
THAT THEY ARE DELUSIVE.  FEW WRITERS HAVE VENTURED TO CHALLENGE THIS
AMERICAN IDOLATRY, BUT SEE HAMILTON, COST AS A STANDARD FOR PRICE, 4
LAW AND CONTEMPORARY PROBLEMS 321, 323-25.  HE OBSERVES THAT "AS THE
APOSTLE WOULD PUT IT, ACCOUNTANCY IS ALL THINGS TO ALL MEN.  ...  ITS
PURPOSE DETERMINES THE CHARACTER OF A SYSTEM OF ACCOUNTS."  HE ANALYZES
THE HYPOTHETICAL CHARACTER OF ACCOUNTING AND SAYS "IT WAS NO ETERNAL
MOLD FOR PECUNIARY VERITIES HANDED DOWN FROM ON HIGH.  IT WAS - LIKE
LOGIC, OR ALGEBRA, OR THE DEVICE OF ANALOGY IN THE LAW - AN INGENIOUS
CONTRIVANCE OF THE HUMAN MIND TO SERVE A LIMITED AND PRACTICAL
PURPOSE."  "ACCOUNTANCY IS FAR FROM BEING A PECUNIARY EXPRESSION OF ALL
THAT IS INDUSTRIAL REALITY.  IT IS AN INSTRUMENT, HIGHLY SELECTIVE IN
ITS APPLICATION, IN THE SERVICE OF THE INSTITUTION OF MONEY MAKING." 
AS TO CAPITAL ACCOUNT HE OBSERVES "IN AN ENTERPRISE IN LUSTY
COMPETITION WITH OTHERS OF ITS KIND, SURVIVAL IS THE THING AND THE
SYSTEM OF ACCOUNTS HAS ITS FOCUS IN SOLVENCY.  ...  ACCORDINGLY
DEPRECIATION, OBSOLESCENCE, AND OTHER FACTORS WHICH CARRY NO IMMEDIATE
THREAT ARE MATTERS OF LESSER CONCERN AND THE CAPITAL ACCOUNT IS LIKELY
TO BE REGARDED AS A SECONDARY PHENOMENON.  ...  BUT IN AN ENTERPRISE,
SUCH AS A PUBLIC UTILITY, WHERE CONTINUED SURVIVAL SEEMS ASSURED,
SOLVENCY IS LIKELY TO BE TAKEN FOR GRANTED.  ...  A PERSISTENT AND
INGENIOUS ATTENTION IS LIKELY TO BE DIRECTED NOT SO MUCH TO SECURING
THE UPKEEP OF THE PHYSICAL PROPERTY AS TO MAKING IT CERTAIN THAT
CAPITALIZATION FAILS IN NOT ONE WHIT TO GIVE FULL RECOGNITION TO EVERY
ITEM THAT SHOULD GO INTO THE ACCOUNT." 

FN41  SEE 2 BONBRIGHT, VALUATION OF PROPERTY (1937) 1112. 

FN42  BONBRIGHT SAYS, "  ...  THE VICE OF TRADITIONAL LAW LIES, NOT
IN ITS ADOPTION OF EXCESSIVELY RIGID CONCEPTS OF VALUE AND RULES OF
VALUATION, BUT RATHER IN ITS TENDENCY TO PERMIT SHIFTS IN MEANING THAT
ARE INEPT, OR ELSE THAT ARE ILL-DEFINED BECAUSE THE JUDGES THAT MAKE
THEM WILL NOT OPENLY ADMIT THAT THEY ARE DOING SO."  ID., 1170. 

FN43  "THE ATTEMPT TO REGULATE RATES BY REFERENCE TO A PERIODIC OR
OCCASIONAL REAPPRAISAL OF THE PROPERTIES HAS NOW BEEN TESTED LONG
ENOUGH TO CONFIRM THE WORST FEARS OF ITS CRITICS.  UNLESS ITS PLACE IS
TAKEN BY SOME MORE PROMISING SCHEME OF RATE CONTROL, THE DAYS OF
PRIVATE OWNERSHIP UNDER GOVERNMENT REGULATION MAY BE NUMBERED."  2
BONBRIGHT, VALUATION OF PROPERTY (1937) 1190. 

FN44  EASH OHIO ITSELF OWNS NATURAL GAS RIGHTS IN 550,600 ACRES,
518,526 OF WHICH ARE RESERVED AND 32,074 OPERATED, BY 375 WELLS. 
MOODY'S MANUAL OF PUBLIC UTILITIES (1943) 5. 

FN45  HOPE HAS ASKED A CERTIFICATE OF CONVENIENCE AND NECESSITY TO
LAY 1,140 MILES OF 22-INCH PIPELINE FROM HUGOTON GAS FIELDS IN
SOUTHWEST KANSAS TO WEST VIRGINIA TO CARRY 285 MILLION CU. FT. OF
NATURAL GAS PER DAY.  THE COST WAS ESTIMATED AT $51,000,000.  MOODY'S
MANUAL OF PUBLIC UTILITIES (1943) 1760.    FN46  I FIND LITTLE
INFORMATION AS TO THE RATES FOR INDUSTRIES IN THE RECORD AND NONE AT
ALL IN SUCH USUAL SOURCES AS MOODY'S MANUAL. 

FN47  THE FEDERAL POWER COMMISSION HAS TOUCHED UPON THE PROBLEM OF
CONSERVATION IN CONNECTION WITH AN APPLICATION FOR A CERTIFICATE
PERMITTING CONSTRUCTION OF A 1,500-MILE PIPELINE FROM SOUTHERN TEXAS TO
NEW YORK CITY AND SAYS:  "THE NATURAL GAS ACT AS PRESENTLY DRAFTED DOES
NOT ENABLE THE COMMISSION TO TREAT FULLY THE SERIOUS IMPLICATIONS OF
SUCH A PROBLEM.  THE QUESTION SHOULD BE RAISED AS TO WHETHER THE
PROPOSED USE OF NATURAL GAS WOULD NOT RESULT IN DISPLACING A LESS
VALUABLE FUEL AND CREATE HARDSHIPS IN THE INDUSTRY ALREADY SUPPLYING
THE MARKET, WHILE AT THE SAME TIME RAPIDLY DEPLETING THE COUNTRY'S
NATURALGAS RESERVES.  ALTHOUGH, FOR A PERIOD OF PERHAPS 20 YEARS, THE
NATURAL GAS COULD BE SO PRICED AS TO APPEAR TO OFFER AN APPARENT SAVING
IN FUEL COSTS, THIS WOULD MEAN SIMPLY THAT SOCIAL COSTS WHICH MUST
EVENTUALLY BE PAID HAD BEEN IGNORED. 

"CAREFUL STUDY OF THE ENTIRE PROBLEM MAY LEAD TO THE CONCLUSION THAT
USE OF NATURAL GAS SHOULD BE RESTRICTED BY FUNCTIONS RATHER THAN BY
AREAS.  THUS, IT IS ESPECIALLY ADAPTED TO SPACE AND WATER HEATING IN
URBAN HOMES AND OTHER BUILDINGS AND TO THE VARIOUS INDUSTRIAL HEAT
PROCESSES WHICH REQUIRE CONCENTRATION OF HEAT, FLEXIBILITY OF CONTROL,
AND UNIFORMITY OF RESULTS.  INDUSTRIAL USES TO WHICH IT APPEARS
PARTICULARLY ADAPTED INCLUDE THE TREATING AND ANNEALING OF METALS, THE
OPERATION OF KILNS IN THE CERAMIC, CEMENT, AND LIME INDUSTRIES, THE
MANUFACTURE OF GLASS IN ITS VARIOUS FORMS, AND USE AS A RAW MATERIAL IN
THE CHEMICAL INDUSTRY.  GENERAL USE OF NATURAL GAS UNDER BOILERS FOR
THE PRODUCTION OF STEAM IS, HOWEVER, UNDER MOST CIRCUMSTANCES OF VERY
QUESTIONABLE SOCIAL ECONOMY."  TWENTIETH ANNUAL REPORT OF THE FEDERAL
POWER COMMISSION (1940) 79. 
..END :





















MERCOID CORP. V. MID-CONTINENT CO., 320 U.S. 661 


NOS. 54 AND 55.  ARGUED DECEMBER 9, 1943.  - DECIDED JANUARY 3, 1944.  -
133 F.2D 803, REVERSED. 


1.  THE OWNER OF A SYSTEM PATENT MAY NOT USE IT TO SECURE A LIMITED
MONOPOLY OF AN UNPATENTED DEVICE EMPLOYED IN PRACTICING THE INVENTION,
EVEN THOUGH THE UNPATENTED DEVICE IS ITSELF AN INTEGRAL PART OF THE
PATENTED SYSTEM.  P. 665. 

2.  IN A SUIT FOR INFRINGEMENT OF A COMBINATION PATENT, MISUSE OF THE
PATENT TO PROTECT AN UNPATENTED ELEMENT FROM COMPETITION IS A DEFENSE
AVAILABLE TO A CONTRIBUTORY INFRINGER.  LEEDS & CATLIN CO. V. VICTOR
TALKING MACHINE CO. (NO. 2), 213 U.S. 325, LIMITED.  P. 668. 

3.  EXERCISE BY AN EQUITY COURT OF ITS DISCRETION TO WITHHOLD RELIEF
FROM A PATENTEE WHO HAS MISUSED HIS PATENT TO SECURE A LIMITED MONOPOLY
OF UNPATENTED MATERIAL, CAN NOT BE FORECLOSED BY THE FAILURE OF THE
DEFENDANT TO INTERPOSE THAT DEFENSE IN EARLIER LITIGATION TO WHICH THE
ALLEGED INFRINGER WAS PRIVY.  P. 670. 

4.  A JUDGMENT IN A SUIT FOR INFRINGEMENT OF A PATENT DOES NOT BAR A
CLAIM BASED ON SEC. 4 OF THE CLAYTON ACT WHICH COULD HAVE BEEN, BUT WAS
NOT, ASSERTED AS A COUNTERCLAIM IN THE PRIOR SUIT.  P. 671. 

WHERE THE SECOND CAUSE OF ACTION BETWEEN THE PARTIES IS UPON A
DIFFERENT CLAIM, THE PRIOR JUDGMENT IS RES JUDICATA NOT AS TO ISSUES
WHICH MIGHT HAVE BEEN TENDERED BUT ONLY AS TO THOSE UPON THE
DETERMINATION OF WHICH THE FINDING OR VERDICT WAS RENDERED.  P. 671. 

5.  A COUNTERCLAIM BASED ON SEC. 4 OF THE CLAYTON ACT MAY, UNDER THE
RULES OF CIVIL PROCEDURE, BE ASSERTED IN A PATENT INFRINGEMENT SUIT. 
P. 671. 

MERCOID CORPORATION V. MID-CONTINENT INVESTMENT CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 319 U.S. 737, TO REVIEW A DECREE WHICH AFFIRMED IN PART
AND REVERSED IN PART A DECREE OF THE DISTRICT COURT, 43 F.SUPP.  692,
IN A PATENT INFRINGEMENT SUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT BY RESPONDENT, MID-CONTINENT INVESTMENT CO.,
AGAINST PETITIONER, MERCOID CORPORATION, FOR CONTRIBUTORY INFRINGEMENT
OF THE CROSS COMBINATION PATENT NO. 1,758,146, ISSUED MAY 13, 1930, FOR
A DOMESTIC HEATING SYSTEM.  MERCOID IN ITS ANSWER DENIED CONTRIBUTORY
INFRINGEMENT AND ALLEGED THAT MID-CONTINENT SHOULD BE BARRED FROM
RELIEF BECAUSE IT WAS SEEKING TO EXTEND THE GRANT OF THE PATENT TO
UNPATENTED DEVICES.  THE ALLEGED IMPROPER USE OF THE PATENT WAS ALSO
THE BASIS OF A COUNTERCLAIM FILED BY MERCOID IN WHICH IT WAS AVERRED
THAT MID-CONTINENT AND ITS EXCLUSIVE LICENSEE UNDER THE PATENT,
RESPONDENT MINNEAPOLIS-HONEYWELL REGULATOR CO., WHO WAS BROUGHT IN AS A
PARTY PLAINTIFF, HAD CONSPIRED TO EXPAND THE MONOPOLY OF THE PATENT IN
VIOLATION OF THE ANTITRUST LAWS.  MERCOID ASKED NOT ONLY FOR
DECLARATORY RELIEF BUT FOR AN ACCOUNTING AND TREBLE DAMAGES AS WELL. 
THE DISTRICT COURT FOUND THAT MERCOID DID NOT CONTRIBUTE TO THE
INFRINGEMENT OF THE CROSS PATENT; THAT RESPONDENTS HAD CONSPIRED TO
ESTABLISH A MONOPOLY IN AN UNPATENTED APPLIANCE BEYOND THE SCOPE OF THE
PATENT AND IN VIOLATION OF THE ANTI-TRUST LAWS; AND THAT RESPONDENTS
WERE IN NO POSITION TO MAINTAIN THE SUIT BECAUSE OF THAT CONSPIRACY. 
MERCOID WAS GRANTED AN INJUNCTION BUT ITS PRAYER FOR DAMAGES WAS
DENIED.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT OF THE
DISTRICT COURT IN DISALLOWING DAMAGES UNDER THE COUNTERCLAIM.  IN ALL
OTHER RESPECTS IT REVERSED THAT JUDGMENT, HOLDING THAT MERCOID WAS
GUILTY OF CONTRIBUTORY INFRINGEMENT UNDER THE RULE OF LEEDS & CATLIN
CO. V. VICTOR TALKING MACHINE CO. (NO. 2), 213 U.S. 325, AND THAT
CARBICE CORP. V. AMERICAN PATENTS CORP., 283 U.S. 27 AND LEITCH MFG.
CO. V. BARBER CO., 302 U.S. 458, DID NOT BAR RECOVERY AS THE DISTRICT
COURT HAD THOUGHT.  133 F.2D 803.  THE CASE IS HERE ON A PETITION FOR A
WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE PUBLIC IMPORTANCE OF
THE QUESTIONS PRESENTED. 

THE CONTROVERSY CENTERS AROUND THE LICENSE AGREEMENT BETWEEN MID
CONTINENT AND MINNEAPOLIS-HONEYWELL.  BY THAT AGREEMENT MINNEAPOLIS
HONEYWELL RECEIVED AN EXCLUSIVE LICENSE TO MAKE, USE, SELL, AND TO SUB
LICENSE OTHERS TO MAKE, USE, AND SELL THE CROSS COMBINATION PATENT NO.
1,758,146.  THE ROYALTY PAYMENTS UNDER THE LICENSE, HOWEVER, WERE TO BE
BASED ONLY UPON SALES OF THE COMBUSTION STOKER SWITCH WHICH WAS AN
ELEMENT OF THE COMBINATION PATENT EMBODIED IN THE PATENTED ARTICLE BUT
WHICH WAS ITSELF UNPATENTED.  THE LICENSE AGREEMENT WAS CONSTRUED BY
THE CIRCUIT COURT OF APPEALS TO MEAN THAT THE ROYALTY PAYMENTS WERE TO
BE MADE ONLY ON SWITCHES USED FOR FIRE MAINTENANCE PURPOSES UNDER THE
CROSS PATENT.  AND MINNEAPOLIS-HONEYWELL IN ADVERTISING ITS STOKER
SWITCHES STATED THAT THE "RIGHT TO USE" THE CROSS SYSTEM PATENT WAS
"ONLY GRANTED TO THE USER" WHEN THE STOKER SWITCHES OF MINNEAPOLIS
HONEYWELL WERE PURCHASED FROM IT AND USED IN THE SYSTEM.  NEITHER MID
CONTINENT NOR MINNEAPOLIS-HONEYWELL MANUFACTURES OR INSTALLS HEATING
SYSTEMS UNDER THE CROSS COMBINATION PATENT.  THERE WAS AMPLE EVIDENCE
TO SUSTAIN THE FINDINGS OF THE DISTRICT COURT THAT RESPONDENTS
ENDEAVORED TO USE THE LICENSE AGREEMENT SO AS TO PREVENT THE SALE OR
USE OF COMBUSTION STOKER SWITCHES IN THESE HEATING SYSTEMS UNLESS THEY
WERE THE SWITCHES MADE BY MINNEAPOLIS-HONEYWELL AND PURCHASED FROM IT
OR ITS SUB-LICENSEES. 

THE PATENT IS A COMBINATION OR SYSTEM PATENT, COVERING A DOMESTIC
HEATING SYSTEM WHICH COMPRISES THREE MAIN ELEMENTS - A MOTOR DRIVEN
STOKER FOR FEEDING FUEL TO THE COMBUSTION CHAMBER OF A FURNACE, A ROOM
THERMOSTAT FOR CONTROLLING THE FEEDING OF FUEL, AND A COMBUSTION STOKER
SWITCH TO PREVENT EXTINGUISHMENT OF THE FIRE.  THE ROOM THERMOSTAT
FUNCTIONS TO SUPPLY, OR DISCONTINUE THE SUPPLY OF, HEAT BY CLOSING OR
THEN OPENING THE CIRCUIT TO THE STOKER MOTOR AT THE REQUIRED
TEMPERATURES.  THE COMBUSTION STOKER SWITCH, OR HOLDFIRE CONTROL, IS
RESPONSIVE TO A LOW TEMPERATURE IN THE FURNACE CAUSING THE STOKER TO
FEED FUEL SO AS TO PREVENT THE FURNACE FIRE FROM GOING OUT.  THE
CONTROL OF THE COMBUSTION STOKER SWITCH IS SAID TO BE EFFECTIVE IN MILD
WEATHER WHEN THE ROOM THERMOSTAT MAY NOT CALL FOR HEAT FOR A
CONSIDERABLE PERIOD. 

MERCOID, LIKE MID-CONTINENT AND MINNEAPOLIS-HONEYWELL, DOES NOT SELL
OR INSTALL THE CROSS HEATING SYSTEM.  BUT THE CIRCUIT COURT OF APPEALS
FOUND THAT MERCOID MANUFACTURED AND SOLD COMBUSTION STOKER SWITCHES FOR
USE IN THE CROSS COMBINATION PATENT.  AND WE MAY ASSUME THAT MERCOID
DID NOT ACT INNOCENTLY.  INDEED THE CIRCUIT COURT OF APPEALS SAID THAT
IT COULD FIND NO USE FOR THE ACCUSED DEVICES OTHER THAN IN THE CROSS
COMBINATION PATENT.  AND IT ASSUMED, AS WAS HELD IN SMITH V. MID
CONTINENT INVESTMENT CO., 106 F.2D 622, THAT THE CROSS PATENT WAS
VALID.  BUT THOUGH WE ASSUME THE VALIDITY OF THE PATENT AND ACCEPT
FULLY THE FINDINGS OF THE CIRCUIT COURT OF APPEALS, WE THINK THE
JUDGMENT BELOW SHOULD BE REVERSED. 

EVER SINCE HENRY V. A.B. DICK CO., 224 U.S. 1, WAS OVERRULED BY
MOTION PICTURE CO. V. UNIVERSAL FILM CO., 243 U.S. 502, THIS COURT HAS
CONSISTENTLY HELD THAT THE OWNER OF A PATENT MAY NOT EMPLOY IT TO
SECURE A LIMITED MONOPOLY OF AN UNPATENTED MATERIAL USED IN APPLYING
THE INVENTION.  CARBICE CORP. V. AMERICAN PATENTS CORP., SUPRA; LEITCH
MFG. CO. V. BARBER CO., SUPRA; MORTON SALT CO. V. G.S. SUPPIGER CO.,
314 U.S. 488; B.B. CHEMICAL CO. V. ELLIS, 314 U.S. 495.  IN THOSE CASES
BOTH DIRECT AND CONTRIBUTORY INFRINGEMENT SUITS WERE DISALLOWED ON A
SHOWING THAT THE OWNER OF THE PATENT WAS USING IT "AS THE EFFECTIVE
MEANS OF RESTRAINING COMPETITION WITH ITS SALE OF AN UNPATENTED
ARTICLE."  MORTON SALT CO. V. G.S. SUPPIGER CO., SUPRA, P. 490.  THE
COURT HAS REPEATEDLY HELD THAT TO ALLOW SUCH SUITS WOULD BE TO EXTEND
THE AID OF A COURT OF EQUITY IN EXPANDING THE PATENT BEYOND THE
LEGITIMATE SCOPE OF ITS MONOPOLY.  IT IS TRUE THAT THOSE CASES INVOLVED
THE USE OF THE PATENT FOR A MACHINE OR PROCESS TO SECURE A PARTIAL
MONOPOLY IN SUPPLIES CONSUMED IN ITS OPERATION OR UNPATENTED MATERIALS
EMPLOYED IN IT.  BUT WE CAN SEE NO DIFFERENCE IN PRINCIPLE WHERE THE
UNPATENTED MATERIAL OR DEVICE IS ITSELF AN INTEGRAL PART OF THE
STRUCTURE EMBODYING THE PATENT. 

THE GRANT OF A PATENT IS THE GRANT OF A SPECIAL PRIVILEGE "TO PROMOTE
THE PROGRESS OF SCIENCE AND USEFUL ARTS."  CONST., ART. I, SEC. 8.  IT
CARRIES, OF COURSE, A RIGHT TO BE FREE FROM COMPETITION IN THE PRACTICE
OF THE INVENTION.  BUT THE LIMITS OF THE PATENT ARE NARROWLY AND
STRICTLY CONFINED TO THE PRECISE TERMS OF THE GRANT.  ETHYL GASOLINE
CORP. V. UNITED STATES, 309 U.S. 436, 456; UNITED STATES V. UNIVIS LENS
CO., 316 U.S. 241, 251.  IT IS THE PUBLIC INTEREST WHICH IS DOMINANT IN
THE PATENT SYSTEM.  PENNOCK V. DIALOGUE, 2 PET. 1; KENDALL V. WINSOR,
21 HOW.  322, 329; ADAMS V. BURKE, 17 WALL.  453; MOTION PICTURE CO. V.
UNIVERSAL FILM CO., SUPRA, PP. 510-511; MORTON SALT CO. V. G.S.
SUPPIGER CO., SUPRA; UNITED STATES V. MASONITE CORP., 316 U.S. 265,
278.  IT IS THE PROTECTION OF THE PUBLIC IN A SYSTEM OF FREE ENTERPRISE
WHICH ALIKE NULLIFIES A PATENT WHERE ANY PART OF IT IS INVALID (MARCONI
WIRELESS CO. V. UNITED STATES, 320 U.S. 1, 58; AND SEE GENERAL ELECTRIC
CO. V. WABASH CORP., 304 U.S. 364, 372) AND DENIES TO THE PATENTEE
AFTER ISSUANCE THE POWER TO USE IT IN SUCH A WAY AS TO ACQUIRE A
MONOPOLY WHICH IS NOT PLAINLY WITHIN THE TERMS OF THE GRANT.  THE
NECESSITIES OR CONVENIENCE OF THE PATENTEE DO NOT JUSTIFY ANY USE OF
THE MONOPOLY OF THE PATENT TO CREATE ANOTHER MONOPOLY.  THE FACT THAT
THE PATENTEE HAS THE POWER TO REFUSE A LICENSE DOES NOT ENABLE HIM TO
ENLARGE THE MONOPOLY OF THE PATENT BY THE EXPEDIENT OF ATTACHING
CONDITIONS TO ITS USE.  UNITED STATES V. MASONITE CORP., SUPRA, P.
277.  THE METHOD BY WHICH THE MONOPOLY IS SOUGHT TO BE EXTENDED IS
IMMATERIAL.  UNITED STATES V. UNIVIS LENS CO., SUPRA, PP. 251-252.  THE
PATENT IS A PRIVILEGE.  BUT IT IS A PRIVILEGE WHICH IS CONDITIONED BY A
PUBLIC PURPOSE.  IT RESULTS FROM INVENTION AND IS LIMITED TO THE
INVENTION WHICH IT DEFINES.  WHEN THE PATENTEE TIES SOMETHING ELSE TO
HIS INVENTION, HE ACTS ONLY BY VIRTUE OF HIS RIGHT AS THE OWNER OF
PROPERTY TO MAKE CONTRACTS CONCERNING IT AND NOT OTHERWISE.  HE THEN IS
SUBJECT TO ALL THE LIMITATIONS UPON THAT RIGHT WHICH THE GENERAL LAW
IMPOSES UPON SUCH CONTRACTS.  THE CONTRACT IS NOT SAVED BY ANYTHING IN
THE PATENT LAWS BECAUSE IT RELATES TO THE INVENTION.  IF IT WERE, THE
MERE ACT OF THE PATENTEE COULD MAKE THE DISTINCTIVE CLAIM OF THE PATENT
ATTACH TO SOMETHING WHICH DOES NOT POSSESS THE QUALITY OF INVENTION. 
THEN THE PATENT WOULD BE DIVERTED FROM ITS STATUTORY PURPOSE AND BECOME
A READY INSTRUMENT FOR ECONOMIC CONTROL IN DOMAINS WHERE THE ANTI-TRUST
ACTS OR OTHER LAWS NOT THE PATENT STATUTES DEFINE THE PUBLIC POLICY. 

THE INSTANT CASE IS A GRAPHIC ILLUSTRATION OF THE EVILS OF AN
EXPANSION OF THE PATENT MONOPOLY BY PRIVATE ENGAGEMENTS.  THE PATENT IN
QUESTION EMBRACES FURNACE ASSEMBLIES WHICH NEITHER THE PATENTEE NOR THE
LICENSEE MAKES OR VENDS.  THE STRUGGLE IS NOT OVER A COMBINATION PATENT
AND THE RIGHT TO MAKE OR VEND IT.  THE CONTEST IS SOLELY OVER
UNPATENTED WARES WHICH GO INTO THE PATENTED PRODUCT.  RESPONDENTS POINT
OUT THAT THE ROYALTIES UNDER THE LICENSE ARE MEASURED BY THE NUMBER OF
UNPATENTED CONTROLS WHICH ARE SOLD AND THAT NO ROYALTY IS PAID UNLESS A
FURNACE COVERED BY THE PATENT HAS BEEN INSTALLED.  BUT THE FACT REMAINS
THAT THE COMPETITION WHICH IS SOUGHT TO BE CONTROLLED IS NOT
COMPETITION IN THE SALE OF THE PATENTED ASSEMBLY BUT MERELY COMPETITION
IN THE SALE OF THE UNPATENTED THERMOSTATIC CONTROLS.  THE PATENT IS
EMPLOYED TO PROTECT THE MARKET FOR A DEVICE ON WHICH NO PATENT HAS BEEN
GRANTED.  BUT FOR THE PATENT SUCH RESTRAINT ON TRADE WOULD PLAINLY RUN
AFOUL OF THE ANTI-TRUST LAWS.  IF THE RESTRAINT IS LAWFUL BECAUSE OF
THE PATENT, THE PATENT WILL HAVE BEEN EXPANDED BY CONTRACT.  THAT ON
WHICH NO PATENT COULD BE OBTAINED WOULD BE AS EFFECTIVELY PROTECTED AS
IF A PATENT HAD BEEN ISSUED.  PRIVATE BUSINESS WOULD FUNCTION AS ITS
OWN PATENT OFFICE AND IMPOSE ITS OWN LAW UPON ITS LICENSEES.  IT WOULD
OBTAIN BY CONTRACT WHAT LETTERS PATENT ALONE MAY GRANT.  SUCH A VAST
POWER "TO MULTIPLY MONOPOLIES" AT THE WILL OF THE PATENTEE (CHIEF
JUSTICE WHITE DISSENTING IN HENRY V. A.B. DICK CO., SUPRA, P. 53) WOULD
CARVE OUT EXCEPTIONS TO THE ANTI-TRUST LAWS WHICH CONGRESS HAS NOT
SANCTIONED.  MR. JUSTICE BRANDEIS, SPEAKING FOR THE COURT, STATED IN
THE CARBICE CASE THAT "CONTROL OVER THE SUPPLY OF SUCH UNPATENTED
MATERIAL IS BEYOND THE SCOPE OF THE PATENTEE'S MONOPOLY; AND THIS
LIMITATION, INHERENT IN THE PATENT GRANT, IS NOT DEPENDENT UPON THE
PECULIAR FUNCTION OR CHARACTER OF THE UNPATENTED MATERIAL OR ON THE WAY
IN WHICH IT IS USED."  283 U.S. P. 33.  WE NOW ADD THAT IT MAKES NO
DIFFERENCE THAT THE UNPATENTED DEVICE IS PART OF THE PATENTED WHOLE. 

THAT RESULT MAY NOT BE OBVIATED IN THE PRESENT CASE BY CALLING THE
COMBUSTION STOKER SWITCH THE "HEART OF THE INVENTION" OR THE "ADVANCE
IN THE ART."  THE PATENT IS FOR A COMBINATION ONLY.  SINCE NONE OF THE
SEPARATE ELEMENTS OF THE COMBINATION IS CLAIMED AS THE INVENTION, NONE
OF THEM WHEN DEALT WITH SEPARATELY IS PROTECTED BY THE PATENT
MONOPOLY.  LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO. (NO. 1),
213 U.S. 301, 318.  WHETHER THE PARTS ARE NEW OR OLD, THE COMBINATION
IS THE INVENTION AND IT IS DISTINCT FROM ANY OF THEM.  SEE SCHUMACHER
V. CORNELL, 96 U.S. 549, 554; ROWELL V. LINDSAY, 113 U.S. 97, 101.  IF
A LIMITED MONOPOLY OVER THE COMBUSTION STOKER SWITCH WERE ALLOWED, IT
WOULD NOT BE A MONOPOLY ACCORDED INVENTIVE GENIUS BY THE PATENT LAWS
BUT A MONOPOLY BORN OF A COMMERCIAL DESIRE TO AVOID THE RIGORS OF
COMPETITION FOSTERED BY THE ANTI-TRUST LAWS.  IF SUCH AN EXPANSION OF
THE PATENT MONOPOLY COULD BE EFFECTED BY CONTRACT, THE INTEGRITY OF THE
PATENT SYSTEM WOULD BE SERIOUSLY COMPROMISED. 

LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO. (NO. 2), SUPRA, IS
AUTHORITY FOR THE CONCLUSION THAT HE WHO SELLS AN UNPATENTED PART OF A
COMBINATION PATENT FOR USE IN THE ASSEMBLED MACHINE MAY BE GUILTY OF
CONTRIBUTORY INFRINGEMENT.  THE PROTECTION WHICH THE COURT IN THAT CASE
EXTENDED TO THE PHONOGRAPH RECORD, WHICH WAS AN UNPATENTED PART OF THE
PATENTED PHONOGRAPH, IS IN SUBSTANCE INCONSISTENT WITH THE VIEW WHICH
WE HAVE EXPRESSED IN THIS CASE.  THE RULE OF THE LEEDS & CATLIN CASE
(NO. 2) ACCORDINGLY MUST NO LONGER PREVAIL AGAINST THE DEFENSE  FN1
THAT A COMBINATION PATENT IS BEING USED TO PROTECT AN UNPATENTED PART
FROM COMPETITION.  THAT RESULT OBTAINS HERE THOUGH WE ASSUME FOR THE
PURPOSES OF THIS CASE THAT MERCOID WAS A CONTRIBUTORY INFRINGER AND
THAT RESPONDENTS COULD HAVE ENJOINED THE INFRINGEMENT HAD THEY NOT
MISUSED THE PATENT FOR THE PURPOSE OF MONOPOLIZING UNPATENTED
MATERIAL.  INASMUCH AS THEIR MISUSE OF THE PATENT WOULD HAVE PRECLUDED
THEM FROM ENJOINING A DIRECT INFRINGEMENT (MORTON SALT CO. V. G.S.
SUPPIGER CO., SUPRA) THEY CANNOT STAND IN ANY BETTER POSITION WITH
RESPECT TO A CONTRIBUTORY INFRINGER.  WHERE THERE IS A COLLISION
BETWEEN THE PRINCIPLE OF THE CARBICE CASE AND THE CONVENTIONAL RULES
GOVERNING EITHER DIRECT OR CONTRIBUTORY INFRINGEMENT, THE FORMER
PREVAILS.    THE RESULT OF THIS DECISION, TOGETHER WITH THOSE WHICH
HAVE PRECEDED IT, IS TO LIMIT SUBSTANTIALLY THE DOCTRINE OF
CONTRIBUTORY INFRINGEMENT.  WHAT RESIDUUM MAY BE LEFT WE NEED NOT STOP
TO CONSIDER.  IT IS SUFFICIENT TO SAY THAT IN WHATEVER POSTURE THE
ISSUE MAY BE TENDERED COURTS OF EQUITY WILL WITHHOLD RELIEF WHERE THE
PATENTEE AND THOSE CLAIMING UNDER HIM ARE USING THE PATENT PRIVILEGE
CONTRARY TO THE PUBLIC INTEREST.  MORTON SALT CO. V. G.S. SUPPIGER CO.,
SUPRA, P. 492. 

THERE REMAIN THE QUESTIONS OF RES JUDICATA AND MERCOID'S RIGHT TO
RELIEF UNDER THE COUNTERCLAIM. 

RESPONDENTS POINT OUT THAT MERCOID KNEW OF MID-CONTINENT'S ACTIONS
AND THE LICENSE AGREEMENT PRIOR TO 1935 WHEN THE EARLIER SUIT INVOLVING
THE VALIDITY OF THE CROSS PATENT (SMITH V. MID-CONTINENT INVESTMENT
CO., SUPRA) WAS INSTITUTED.  THEY STATE, AND THE DISTRICT COURT FOUND,
THAT ALTHOUGH MERCOID WAS NOT MADE A PARTY TO THE EARLIER SUIT IT
PROVIDED THE DEFENSE.  THE CONTENTION THEREFORE IS THAT THE DOCTRINE OF
RES JUDICATA BINDS MERCOID AS RESPECTS ISSUES WHICH WERE ACTUALLY
LITIGATED AND ALL ISSUES WHICH MIGHT HAVE BEEN RAISED IN THAT EARLIER
SUIT.  AND IT IS POINTED OUT THAT AMONG THE DEFENSES WHICH MIGHT HAVE
BEEN INTERPOSED WERE THOSE RELATING TO THE MISUSE OF THE PATENT AND THE
VIOLATIONS OF THE ANTI-TRUST LAWS.  IT IS ARGUED, MOREOVER, THAT
ALTHOUGH MINNEAPOLIS-HONEYWELL WAS NOT A PARTY TO THE EARLIER
LITIGATION, IT IS ENTITLED TO THE BENEFIT OF THE JUDGMENT SINCE ITS
TITLE OR CLAIM DERIVES FROM THE PATENTEE.  WE DO NOT STOP TO EXAMINE
THE PREMISES ON WHICH THE ARGUMENT IS BASED; FOR THOUGH WE ASSUME THAT
THEY ARE CORRECT, IT DOES NOT FOLLOW THAT THE DOCTRINE OF RES JUDICATA
FORECLOSES THE DEFENSE WHICH IS TENDERED. 

RESPONDENTS ASK THE EQUITY COURT FOR AN INJUNCTION AGAINST
INFRINGEMENT BY PETITIONER OF THE PATENT IN QUESTION AND FOR AN
ACCOUNTING.  SHOULD SUCH A DECREE BE ENTERED, THE COURT WOULD BE
PLACING ITS IMPRIMATUR ON A SCHEME WHICH INVOLVES A MISUSE OF THE
PATENT PRIVILEGE AND A VIOLATION OF THE ANTI-TRUST LAWS.  IT WOULD AID
IN THE CONSUMMATION OF A CONSPIRACY TO EXPAND A PATENT BEYOND ITS
LEGITIMATE SCOPE.  BUT PATENTEES AND LICENSEES CANNOT SECURE AID FROM
THE COURT TO BRING SUCH AN EVENT TO PASS, "UNLESS IT IS IN ACCORDANCE
WITH POLICY TO GRANT THAT HELP."  BEASLEY V. TEXAS & PACIFIC RY. CO.,
191 U.S. 492, 497.  AND THE DETERMINATION OF THAT POLICY IS NOT "AT THE
MERCY" OF THE PARTIES (ID., P. 498) NOR DEPENDENT ON THE USUAL RULES
GOVERNING THE SETTLEMENT OF PRIVATE LITIGATION.  "COURTS OF EQUITY MAY,
AND FREQUENTLY DO, GO MUCH FARTHER BOTH TO GIVE AND WITHHOLD RELIEF IN
FURTHERANCE OF THE PUBLIC INTEREST THAN THEY ARE ACCUSTOMED TO GO WHEN
ONLY PRIVATE INTERESTS ARE INVOLVED."  VIRGINIAN RY. CO. V. SYSTEM
FEDERATION, 300 U.S. 515, 552.  "WHERE AN IMPORTANT PUBLIC INTEREST
WOULD BE PREJUDICED," THE REASONS FOR DENYING INJUNCTIVE RELIEF "MAY BE
COMPELLING."  HARRISONVILLE V. DICKEY CLAY CO., 289 U.S. 334, 338.  AND
SEE UNITED STATES V. MORGAN, 307 U.S. 183, 194.  THAT IS THE PRINCIPLE
WHICH HAS LED THIS COURT IN THE PAST TO WITHHOLD AID FROM A PATENTEE IN
SUITS FOR EITHER DIRECT OR INDIRECT INFRINGEMENT WHERE THE PATENT WAS
BEING MISUSED.  MORTON SALT CO. V. G.S. SUPPIGER CO., SUPRA, P. 492. 
THAT PRINCIPLE IS CONTROLLING HERE.  THE PARTIES CANNOT FORECLOSE THE
COURTS FROM THE EXERCISE OF THAT DISCRETION BY THE FAILURE TO INTERPOSE
THE SAME DEFENSE IN AN EARLIER LITIGATION.  CF. SOLA ELECTRIC CO. V.
JEFFERSON ELECTRIC CO., 317 U.S. 173. 

WHAT WE HAVE JUST SAID DOES NOT, OF COURSE, DISPOSE OF MERCOID'S
COUNTERCLAIM FOR DAMAGES.  THAT WAS BASED ON SEC. 4 OF THE CLAYTON ACT
WHICH PROVIDES:  "ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR
PROPERTY BY REASON OF ANYTHING FORBIDDEN IN THE ANTI-TRUST LAWS MAY SUE
THEREFOR IN ANY DISTRICT COURT OF THE UNITED STATES IN THE DISTRICT IN
WHICH THE DEFENDANT RESIDES OR IS FOUND OR HAS AN AGENT, WITHOUT
RESPECT TO THE AMOUNT IN CONTROVERSY, AND SHALL RECOVER THREEFOLD THE
DAMAGES BY HIM SUSTAINED, AND THE COST OF SUIT, INCLUDING A REASONABLE
ATTORNEY'S FEE."  38 STAT. 731, 15 U.S.C. SEC. 15.  THOUGH MERCOID WERE
BARRED IN THE PRESENT CASE FROM ASSERTING ANY DEFENSE WHICH MIGHT HAVE
BEEN INTERPOSED IN THE EARLIER LITIGATION, IT WOULD NOT FOLLOW THAT ITS
COUNTERCLAIM FOR DAMAGES WOULD LIKEWISE BE BARRED.  THAT CLAIM FOR
DAMAGES IS MORE THAN A DEFENSE; IT IS A SEPARATE STATUTORY CAUSE OF
ACTION.  THE FACT THAT IT MIGHT HAVE BEEN ASSERTED AS A COUNTERCLAIM IN
THE PRIOR SUIT BY REASON OF RULE 13(B) OF THE RULES OF CIVIL PROCEDURE
DOES NOT MEAN THAT THE FAILURE TO DO SO RENDERS THE PRIOR JUDGMENT RES
JUDICATA AS RESPECTS IT. VIRGINIA-CAROLINA CHEMICAL CO. V. KIRVEN, 215
U.S. 252; LARSEN V. NORTHLAND TRANSPORTATION CO., 292 U.S. 20.  AND SEE
SCOTT, COLLATERAL ESTOPPEL BY JUDGMENT, 56 HARV. L. REV. 1, 26-28;
RESTATEMENT OF THE LAW OF JUDGMENTS, SEC. 58.  THE CASE IS THEN
GOVERNED BY THE PRINCIPLE THAT WHERE THE SECOND CAUSE OF ACTION BETWEEN
THE PARTIES IS UPON A DIFFERENT CLAIM THE PRIOR JUDGMENT IS RES
JUDICATA NOT AS TO ISSUES WHICH MIGHT HAVE BEEN TENDERED BUT "ONLY AS
TO THOSE MATTERS IN ISSUE OR POINTS CONTROVERTED, UPON THE
DETERMINATION OF WHICH THE FINDING OR VERDICT WAS RENDERED."  CROMWELL
V. COUNTY OF SAC, 94 U.S. 351, 353.  AND SEE RUSSELL V. PLACE, 94 U.S.
606.  IT WAS HELD IN FLEITMANN V. WELSBACH STREET LIGHTING CO., 240
U.S. 27, THAT THE STATUTORY LIABILITY IN QUESTION MAY BE ENFORCED ONLY
THROUGH THE VERDICT OF A JURY IN A COURT OF COMMON LAW.  BUT THERE IS
NO REASON UNDER THE RULES OF CIVIL PROCEDURE WHY THAT MAY NOT BE DONE
UNDER THIS COUNTERCLAIM.  RULES 12(H), 13, 38, 42(B).  WHETHER THE
EVIDENCE WILL SHOW DAMAGES WITHIN THE RULE OF STORY PARCHMENT CO. V.
PATERSON CO., 282 U.S. 555, IS OF COURSE A DISTINCT QUESTION ON WHICH
WE INTIMATE NO OPINION. 

WE HAVE MENTIONED THE STATUTORY CLAIM FOR DAMAGES BECAUSE BOTH THE
DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS DENIED THAT RELIEF. 
BUT SINCE THE CAUSE MUST BE REMANDED TO THE DISTRICT COURT, WE THINK
THE QUESTION WHETHER RES JUDICATA BARS ANY OTHER PART OF THE RELIEF
SOUGHT BY THE COUNTERCLAIM MAY APPROPRIATELY BE RESERVED FOR IT.
REVERSED. 

FN1  THE COURT IN THAT CASE DID NOT REFER TO THE DOCTRINE OF MISUSE
OF A PATENT.  THAT DOCTRINE INDEED WAS DEVELOPED IN THIS COURT SOME
YEARS LATER AS SHOWN BY THE MOTION PICTURE CASE.  THE RECORD IN THE
LEEDS & CATLIN CASE INDICATES THAT THE POINT WHICH WE DEEM CRUCIAL IN
THE INSTANT CASE WAS ADVERTED TO ONLY OBLIQUELY IN THE BRIEFS.  THE
COURT WAS CHIEFLY CONCERNED WITH THE PROPOSITION THAT A SUBSTITUTION OR
RENEWAL OF AN UNPATENTED ELEMENT OF A COMBINATION PATENT, AS
DISTINGUISHED FROM ITS REPAIR, IS A "RECONSTRUCTION" OF THE COMBINATION
213 U.S. PP. 333, 336. 

OPINION OF MR. JUSTICE BLACK: 

ALTHOUGH I ENTIRELY AGREE WITH THE COURT'S JUDGMENTS AND THE GROUNDS
ON WHICH THEY REST, I FIND IT NECESSARY TO ADD A FEW REMARKS IN ORDER
THAT SILENCE MAY NOT BE UNDERSTOOD AS ACQUIESCENCE IN THE VIEWS
EXPRESSED IN THE DISSENTING OPINION OF MR. JUSTICE FRANKFURTER.  THERE
IS NO INCLINATION ON MY PART TO CHALLENGE THE WISDOM OF THE ESTABLISHED
PRACTICE WHEREBY WE DO NOT DISCUSS ISSUES IN THE ABSTRACT.  AS I SEE
IT, THAT SALUTARY PRACTICE HAS NO APPLICATION TO THE COURT'S DISCUSSION
OF CONTRIBUTORY INFRINGEMENT IN THE PRESENT CASE.  THE COURT BELOW
RESTED ITS DECISION ON WHAT IT CONSIDERED TO BE A DOCTRINE OF
CONTRIBUTORY INFRINGEMENT, AND COUNSEL FOR RESPONDENT HAVE DISCUSSED
AND RELIED UPON IT HERE.  THE COURT'S OPINION DEMONSTRATES THAT THE
SUBJECT CANNOT BE IGNORED SINCE AT LEAST ONE ELEMENT OF THE
"COMPLICATED IDEA" WHICH IS "COMPRESSED" IN THE JUDICIALLY CREATED
"FORMULA" OF CONTRIBUTORY INFRINGEMENT CLASHES HEAD-ON WITH ELEMENTS OF
THE CARBICE DOCTRINE. 

BUT MY DISAGREEMENT WITH THIS DISSENTING OPINION RUNS MUCH DEEPER
THAN THE MERE QUESTION OF WHETHER THE COURT HAS HERE DISCUSSED THE SO
CALLED FORMULA OF CONTRIBUTORY INFRINGEMENT AT AN IMPROPER OR
INOPPORTUNE TIME.  IT SEEMS TO ME THAT THE JUDICIAL ERROR OF DISCUSSING
ABSTRACT QUESTIONS IS SLIGHT COMPARED TO THE ERROR OF INTERPRETING
LEGISLATIVE ENACTMENTS ON THE BASIS OF A COURT'S PRECONCEIVED VIEWS ON
"MORALS" AND "ETHICS." 

IF THERE IS SUCH A WRONG AS CONTRIBUTORY INFRINGEMENT, IT MUST HAVE
BEEN CREATED BY THE FEDERAL PATENT STATUTES.  SINCE THEY MAKE NO DIRECT
MENTION OF SUCH A WRONG, ITS EXISTENCE COULD ONLY BE RESTED ON
INFERENCES AS TO CONGRESSIONAL INTENT.  IN SEARCHING FOR CONGRESSIONAL
INTENT WE ORDINARILY LOOK TO SUCH SOURCES AS STATUTORY LANGUAGE AND
LEGISLATIVE HISTORY.  THE DISSENT IN QUESTION MENTIONS NEITHER OF THESE
GUIDES; IN FACT, IT MENTIONS NO STATUTE AT ALL.  INSTEAD, THE CHIEF
RELIANCE APPEARS TO BE UPON THE LAW OF TORTS, A QUOTATION FROM A
DECISION OF A LOWER FEDERAL COURT WHICH HELD THAT NO INFRINGEMENT WAS
SHOWN, AND THE WRITER'S PERSONAL VIEWS ON "MORALS" AND "ETHICS."  NOT
ONE OF THESE REFERENCES, UNLESS IT BE THE LATTER, THROWS ENOUGH LIGHT
ON THE PATENT STATUTES TO JUSTIFY ITS USE IN CONSTRUING THESE STATUTES
AS CREATING, IN ADDITION TO A RIGHT OF RECOVERY FOR INFRINGEMENT, A
MORE EXPANSIVE RIGHT JUDICIALLY CHARACTERIZED AS A "FORMULA" OF
"CONTRIBUTORY INFRINGEMENT."  AND FOR JUDGES TO REST THEIR
INTERPRETATION OF STATUTES ON NOTHING BUT THEIR OWN CONCEPTIONS OF
"MORALS" AND "ETHICS" IS, TO SAY THE LEAST, DANGEROUS BUSINESS. 

IF THE PRESENT CASE COMPELLED CONSIDERATION OF THE MORALS AND ETHICS
OF CONTRIBUTORY INFRINGEMENT, I SHOULD BE MOST RELUCTANT TO CONCLUDE
THAT THE SCALES OF MORAL VALUE ARE WEIGHTED AGAINST THE RIGHT OF
PRODUCERS TO SELL THEIR UNPATENTED GOODS IN A FREE MARKET.  AT LEAST
SINCE ADAM SMITH WROTE, UNHAMPERED COMPETITION HAS NOT GENERALLY BEEN
CONSIDERED IMMORAL.  WHILE THERE HAVE BEEN OBJECTIONS TO THE SHERMAN
ANTI-TRUST ACT, FEW IF ANY OF THE OBJECTORS HAVE QUESTIONED ITS
MORALITY. 

IT HAS LONG BEEN RECOGNIZED THAT A SOCIALLY UNDESIRABLE PRACTICE MAY
SEEK ACCEPTANCE UNDER THE GUISE OF CONVENTIONAL MORAL SYMBOLS.  AND
REPEATED JUDICIAL ASSERTION THAT A BAD PRACTICE IS HALLOWED BY MORALS
MAY, IF UNCHALLENGED, HELP IT TO RECEIVE THE ACCEPTANCE WHICH IT
SEEKS.  WITH THIS IN MIND, I WISH TO MAKE EXPLICIT MY PROTEST AGAINST
TALKING ABOUT THE JUDICIAL DOCTRINE OF "CONTRIBUTORY INFRINGEMENT" AS
THOUGH IT WERE ENTITLED TO THE SAME RESPECT AS A UNIVERSALLY RECOGNIZED
MORAL TRUTH. 

MR. JUSTICE MURPHY CONCURS IN THIS OPINION. 

MR. JUSTICE ROBERTS: 

FIRST.  I AGREE THAT THE PATENTEE MAY NOT EXTEND HIS EXCLUSIVE
STATUTORY RIGHT TO MAKE, USE, AND VEND BY FORBIDDING ONE PRACTICING THE
INVENTION FROM USING IN SUCH PRACTICE AN UNPATENTED ARTICLE SUSCEPTIBLE
TO SUCH USE.  HE MAY NOT OBTAIN AN INJUNCTION AGAINST SUCH USER FOR
INFRINGEMENT.  THIS IS A PURE QUESTION OF THE EXTENT OF THE RIGHT OF
EXCLUSION CONFERRED BY THE PATENT STATUTE.  FN1  IT NOWISE INVOLVES THE
ANTITRUST ACTS.  A PATENT IS PROPERTY AND IT MAY, LIKE OTHER PROPERTY,
BE SO USED AS TO VIOLATE THOSE ACTS,  FN2  BUT THAT IS NOT THIS CASE. 

SECOND.  I THINK THE OPINION MAY CREATE CONFUSION RESPECTING
CONTRIBUTORY INFRINGEMENT.  THE COURT BELOW, THINKING THE DOCTRINE OF
THE CARBICE AND LEITCH CASES INAPPLICABLE, NECESSARILY CONCLUDED THAT
THE USER OF THE SYSTEM INFRINGED THE PATENT IF HE USED ANY THERMOSTAT
OTHER THAN THAT MANUFACTURED BY RESPONDENT'S EXCLUSIVE LICENSEE.  BUT
THOSE CASES SHOW THAT SO TO DO WOULD NOT CONSTITUTE INFRINGEMENT OF THE
PATENT.  AND IF THE PURCHASER AND USER COULD NOT BE AMERCED AS AN
INFRINGER CERTAINLY ONE WHO SOLD TO HIM WITH THE PURPOSE THAT HE SHOULD
USE THE THERMOSTAT CANNOT BE AMERCED FOR CONTRIBUTING TO A NON-EXISTENT
INFRINGEMENT.  ONE MAY DISAGREE WITH THE DECISION OF THIS COURT IN
LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO. (NO. 2), 213 U.S. 325,
THAT THE SUBSTITUTION BY THE USER OF THE TALKING MACHINE OF A RECORD
NOT MADE BY THE LICENSOR CONSTITUTED AN INFRINGEMENT OF THE PATENT,
BUT, ACCEPTING THE PREMISE THAT SUCH CONDUCT WAS INFRINGEMENT, ONE WHO
PARTICIPATED IN IT BY KNOWINGLY AND INTENTIONALLY SELLING RECORDS TO
THE USER BECAME AN AIDER AND PARTICIPANT IN THE INFRINGEMENT AND, AS
SUCH, LIABLE TO THE OWNER OF THE PATENT.  I CANNOT BELIEVE THAT THE
COURT'S OPINION IS INTENDED TO LAY DOWN A DIFFERENT PRINCIPLE. 

THIRD.  I DISAGREE WITH THE APPLICATION OF THE RULE RES JUDICATA TO
ONE PHASE OF THE LITIGATION.  MERCOID DEFENDED AN EARLIER SUIT BROUGHT
BY THE RESPONDENT AGAINST A USER OF THE PATENTED COMBINATION WHO BOUGHT
AND INSTALLED AS PART OF THE SYSTEM A MERCOID THERMOSTAT.  CONFESSEDLY
THE DEFENSE NOW ASSERTED UNDER THE CARBICE DOCTRINE WAS AVILABLE, WAS
NOT MADE, AND JUDGMENT OF VALIDITY AND INFRINGEMENT WAS ENTERED. 

I FAIL TO SEE WHAT GREAT QUESTION OF PUBLIC INTEREST OR PUBLIC POLICY
IS VIOLATED BY HOLDING THAT ONE TO WHOM A DEFENSE WAS AVAILABLE, IN
REBUTTAL OF A CLAIM BROADER THAN WAS WARRANTED BY THE STATUTE ON WHICH
THE PLAINTIFF'S RIGHT WAS FOUNDED, IS BOUND BY THE JUDGMENT RENDERED. 
THAT JUDGMENT STANDS UNREVERSED.  THE DEFENSE, IF MADE, AS IT COULD
HAVE BEEN, WOULD HAVE BENEFITED THE DEFENDANT IN ITS POCKETBOOK.  WE
ARE NOW TOLD THAT A MISCONSTRUCTION OF THE PATENT LAW BY A LICENSOR IS
SO VIOLENT AND FLAGRANT A FLOUTING OF THE PUBLIC INTEREST THAT A COURT
OF EQUITY MUST HOLD ITS HAND FOR THE BENEFIT OF A DEFENDANT WHENEVER HE
CHOOSES TO INVOKE THAT INTEREST FOR HIS PRIVATE BENEFIT, THOUGH HE HAS
FAILED TO MAKE THE DEFENSE IN AN EARLIER LITIGATION AND STANDS OF
RECORD AN INFRINGER.  IF A WRONG AGAINST THE PUBLIC HAS BEEN
PERPETRATED IT MAY BE REDRESSED AT THE INSTANCE OF THE REPRESENTATIVES
OF GOVERNMENT.    I CAN ONLY SPECULATE AS TO THE RESULTS OF SUCH A
HOLDING.  IF APPLICABLE HERE, I CANNOT SEE WHY THE PRINCIPLE SHOULD NOT
APPLY TO EVERY SUIT OR ACTION BASED UPON, OR ARISING OUT OF, STATUTORY
PROVISIONS, AND TO EVERY DEFENSE BOTTOMED ON PUBLIC POLICY, WHETHER
EXPRESSED IN STATUTE OR NOT.  SURELY THE DEFENDANT IN THE EARLIER SUIT,
AFTER THE DECREE AGAINST HIM BECAME FINAL, COULD NOT HAVE DEFENDED A
CHARGE OF CONTEMPT FOR DISOBEYING THE DECREE ON THE GROUND NOW
ASSERTED.  AND IF THE JUDGMENT CONCLUDED HIM THUS DIRECTLY, I CANNOT
AGREE THAT HE MAY NOW DISREGARD IT OR COLLATERALLY ATTACK IT.  AND
CONFESSEDLY MERCOID STANDS IN HIS SHOES.  FN3    I SHOULD AFFIRM THE
JUDGMENT. 

FN1  CARBICE CORP. V. AMERICAN PATENTS CORP., 283 U.S. 27; LEITCH
MFG. CO. V. BARBER CO., 302 U.S. 458. 

FN2  STANDARD SANITARY MFG. CO. V. UNITED STATES, 226 U.S. 20; UNITED
STATES V. MASONITE CORP., 316 U.S. 265. 

FN3  BRYANT ELECTRIC CO. V. MARSHALL, 169 F. 426; AFFIRMED 185 F.
499.  COMPARE SOUFFRONT V. LA COMPAGNIE, 217 U.S. 475.  AND SEE CASES
COLLECTED 139 A.L.R. 41. 

MR. JUSTICE REED JOINS IN THIS OPINION. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

THE COURT HOLDS IN EFFECT THAT THE OWNER OF A PATENT WHO EXACTS, AS
THE CONDITION OF A LICENSE, THAT UNPATENTED MATERIALS USED IN
CONNECTION WITH THE INVENTION SHALL BE PURCHASED ONLY FROM THE LICENSOR
CANNOT OBTAIN RELIEF FROM EQUITY AGAINST ONE WHO SUPPLIES SUCH
UNPATENTED MATERIALS EVEN THOUGH THE UNPATENTED APPLIANCE WAS NOT FOR
COMMON USE BUT WAS DESIGNEDLY ADAPTED FOR THE PRACTICE OF THE
INVENTION, BUT WHEN SO USED DID NOT INVOLVE AN INFRINGEMENT OF THE
PATENT.  THE DECISION IS THUS MERELY AN APPROPRIATE APPLICATION OF WHAT
HAS COME TO BE KNOWN AS THE DOCTRINE IN THE CARBICE CASE, 283 U.S. 27. 
IN THIS VIEW I CONCUR. 

BUT IN THE SERIES OF CASES IN WHICH THAT DOCTRINE HAS HERETOFORE BEEN
APPLIED (MOTION PICTURE CO. V. UNIVERSAL FILM CO., 243 U.S. 502;
CARBICE CORP. V. AMERICAN PATENTS CORP., SUPRA; MORTON SALT CO. V.
SUPPIGER CO., 314 U.S. 488; B.B. CHEMICAL CO. V. ELLIS, 314 U.S. 495),
NOT ONCE HAS THIS COURT FOUND IT RELEVANT TO REJECT, EITHER EXPLICITLY
OR BY INDIRECTION, ANOTHER DOCTRINE OF THE LAW, THAT OF CONTRIBUTORY
INFRINGEMENT, NOR HAS IT SEEN FIT TO MAKE ANIMADVERSIONS UPON IT. THIS
IS SO DOUBTLESS FOR THE SIMPLE REASON THAT APPROPRIATE OCCASIONS FOR
RELIEF AGAINST CONTRIBUTORY INFRINGEMENT ARE UNRELATED TO THE
CIRCUMSTANCES WHICH BRING THE CARBICE DOCTRINE INTO PLAY.  IN A WORD,
IF THERE IS NO INFRINGEMENT OF A PATENT THERE CAN BE NO CONTRIBUTORY
INFRINGER. 

WITHIN ITS TRUE LIMITS THE IDEA OF CONTRIBUTORY INFRINGEMENT WAS
WOVEN INTO THE FABRIC OF OUR LAW AND HAS BEEN PART OF IT FOR NOW MORE
THAN SEVENTY YEARS.  SEE ROBERTS, CONTRIBUTORY INFRINGEMENT OF PATENT
RIGHTS, 12 HARV. L. REV. 35, AND E.G. THOMSON-HOUSTON ELECTRIC CO. V.
OHIO BRASS CO., 80 F. 712.  THE DOCTRINE HAS BEEN PUT PERHAPS MOST
SIMPLY BY JUDGE SHEPLEY:  "DIFFERENT PARTIES MAY ALL INFRINGE, BY
RESPECTIVELY MAKING OR SELLING, EACH OF THEM, ONE OF THE ELEMENTS OF A
PATENTED COMBINATION, PROVIDED THOSE SEPARATE ELEMENTS ARE MADE FOR THE
PURPOSE, AND WITH THE INTENT, OF THEIR BEING COMBINED BY A PARTY HAVING
NO RIGHT TO COMBINE THEM.  BUT THE MERE MANUFACTURE OF A SEPARATE
ELEMENT OF A PATENTED COMBINATION, UNLESS SUCH MANUFACTURE BE PROVED TO
HAVE BEEN CONDUCTED FOR THE PURPOSE, AND WITH THE INTENT OF AIDING
INFRINGEMENT, IS NOT, IN AND OF ITSELF, INFRINGEMENT."  SAXE V.
HAMMOND, FED. CAS. NO. 12,411, 1 BAN.  & A. 629, 632.  SO UNDERSTOOD,
THE DOCTRINE OF CONTRIBUTORY INFRINGEMENT IS AN EXPRESSION BOTH OF LAW
AND MORALS.  IT IS BUT ONE PHASE OF A MORE COMPREHENDING DOCTRINE OF
LEGAL LIABILITY ENFORCED BY THIS COURT BOTH IN CIVIL AND CRIMINAL
CASES.  SEE, FOR INSTANCE, AMERICAN BANK & TRUST CO. V. FEDERAL RESERVE
BANK, 256 U.S. 350, AND DIRECT SALES CO. V. UNITED STATES, 319 U.S.
703.  INDEED, THE OPINION IN THE CARBICE CASE EXPLICITLY RECOGNIZES A
PROPER SCOPE FOR THE DOCTRINE OF CONTRIBUTORY INFRINGEMENT AS A PHASE
OF THE LAW OF TORTS:  "INFRINGEMENT, WHETHER DIRECT OR CONTRIBUTORY, IS
ESSENTIALLY A TORT, AND IMPLIES INVASION OF SOME RIGHT OF THE
PATENTEE."  CARBICE CORP. V. AMERICAN PATENTS CORP., 283 U.S. 27, 33. 

TO BE SURE, THE DOCTRINE OF CONTRIBUTORY INFRINGEMENT MAY BE
MISCONCEIVED AND HAS BEEN MISAPPLIED.  THAT IS THE FATE OF ALL
SHORTHAND STATEMENTS OF COMPLICATED IDEAS, WHETHER IN LAW OR IN THE
NATURAL SCIENCES.  BUT THE MISAPPLICATION OF A FORMULA INTO WHICH A
COMPLICATED IDEA IS COMPRESSED AND THEREBY MUTILATED IS A POOR EXCUSE
FOR REJECTING THE IDEA.  IT WILL BE TIME ENOUGH TO DEFINE THE
APPROPRIATE LIMITS OF THE DOCTRINE OF CONTRIBUTORY INFRINGEMENT WHEN WE
ARE REQUIRED TO DEAL WITH THE PROBLEM.  UNTIL THEN LITIGANTS AND LOWER
COURTS OUGHT NOT TO BE EMBARRASSED BY GRATUITOUS INNUENDOES AGAINST A
PRINCIPLE OF THE LAW WHICH, WITHIN ITS PROPER BOUNDS, IS ACCREDITED BY
LEGAL HISTORY AS WELL AS ETHICS.  THE LONG AND ON THE WHOLE NOT
UNWORTHY HISTORY OF OUR JUDICIAL ADMINISTRATION ADMONISHES US AGAINST
EXPRESSING VIEWS ON MATTERS NOT BEFORE US.  THE HISTORY OF THIS COURT
ESPECIALLY ADMONISHES US AGAINST THE EVILS OF GIVING OPINIONS NOT
CALLED FOR.  SEE E.G. HUGHES, THE SUPREME COURT OF THE UNITED STATES,
P. 50, AND 49 HARV. L. REV. 68, 98.  THE DUTY OF NOT GOING BEYOND THE
NECESSITIES OF A CASE IS NOT A LIFELESS TECHNICALITY.  THE EXPERIENCE
OF CENTURIES IS BEHIND THE WISDOM OF NOT DECIDING, WHETHER EXPLICITLY
OR BY ATMOSPHERIC PRESSURE, MATTERS THAT DO NOT COME TO THE COURT WITH
THE IMPACT OF NECESSITY. 

FOR THE REASONS SET FORTH BY MY BROTHER ROBERTS, RES JUDICATA CALLS
FOR AFFIRMANCE. 

MR. JUSTICE JACKSON, IN DISSENT: 

"A PATENT," SAID MR. JUSTICE HOLMES, "IS PROPERTY CARRIED TO THE
HIGHEST DEGREE OF ABSTRACTION - A RIGHT IN REM TO EXCLUDE, WITHOUT A
PHYSICAL OBJECT OR CONTENT."  FN1  HERE THE PATENT COVERS A COMBINATION
- A SYSTEM - A SEQUENCE - WHICH IS SAID TO BE NEW, ALTHOUGH EVERY
ELEMENT AND FACTOR IN IT IS OLD AND UNPATENTABLE.  THUS WE HAVE AN
ABSTRACT RIGHT IN AN ABSTRUSE RELATIONSHIP BETWEEN THINGS IN WHICH
INDIVIDUALLY THERE IS NO RIGHT - A LEGAL CONCEPT WHICH EITHER IS VERY
PROFOUND OR ALMOST UNINTELLIGIBLE, I CANNOT BE QUITE SURE WHICH. 

UNDOUBTEDLY THE MAN WHO FIRST DEVISED A THERMOSTAT TO CONTROL THE
FLOW OF ELECTRIC ENERGY GAVE SOMETHING TO THE WORLD.  BUT ONE WHO
MERELY CARRIED IT TO A NEW LOCATION, OR USED TWO INSTEAD OF ONE, OR
THREE INSTEAD OF TWO, OR USED IT TO CONTROL CURRENT FOR A STOKER MOTOR
RATHER THAN FOR A DAMPER, DID NOT DO MUCH THAT I WOULD NOT EXPECT OF A
GOOD MECHANIC FAMILIAR WITH THE INSTRUMENT.  BUT THAT QUESTION OF
VALIDITY IS NOT HERE.  I ASSUME THAT THIS PATENT CONFERS SOME RIGHTS
AND ASK WHAT THEY ARE. 

OF COURSE THE ABSTRACT RIGHT TO THE "SEQUENCE" HAS LITTLE ECONOMIC
IMPORTANCE UNLESS ITS MONOPOLY COMPREHENDS NOT ONLY THE ARRANGEMENT BUT
SOME, AT LEAST, OF ITS COMPONENTS.  IF THE PATENTEE MAY NOT EXCLUDE
COMPETITORS FROM MAKING AND VENDING STRATEGIC UNPATENTED ELEMENTS SUCH
AS THE THERMOSTAT, ADAPTED TO USE IN THE COMBINATION, THE PATENTED
SYSTEM IS SO VULNERABLE TO COMPETITION AS TO BE ALMOST WORTHLESS.  ON
THE OTHER HAND, IF HE MAY PROHIBIT SUCH COMPETITION, HIS SYSTEM PATENT
GATHERS UP INTO ITS MONOPOLY DEVICES LONG KNOWN TO THE ART AND HENCE
NOT THEMSELVES SUBJECT TO ANY PATENT. 

IT IS SUGGESTED THAT SUCH A PATENT SHOULD PROTECT THE PATENTEE AT
LEAST AGAINST ONE WHO KNOWINGLY AND INTENTIONALLY BUILDS A DEVICE FOR
USE IN THE COMBINATION AND VENDS IT FOR THAT PURPOSE.  THAT IS WHAT
APPEARS TO HAVE BEEN DONE HERE.  AS TO ETHICS, THE PARTIES SEEM TO ME
AS MUCH ON A PARITY AS THE POT AND THE KETTLE.  BUT WANT OF KNOWLEDGE
OR INNOCENT INTENT IS NOT ORDINARILY AVAILABLE TO DIMINISH PATENT
PROTECTION.  I DO NOT SEE HOW INTENT CAN MAKE INFRINGEMENT OF WHAT
OTHERWISE IS NOT.  THE LESS LEGAL RIGHTS DEPEND ON SOMEONE'S STATE OF
MIND, THE BETTER. 

THE PRACTICAL ISSUE IS WHETHER WE WILL LEAVE SUCH A COMBINATION
PATENT WITH LITTLE VALUE INDEED OR WHETHER WE WILL GIVE IT VALUE BY
PROJECTING ITS ECONOMIC EFFECTS TO ELEMENTS NOT BY THEMSELVES A PART OF
ITS LEGAL MONOPOLY.  IN THESE CIRCUMSTANCES I THINK WE SHOULD PROTECT
THE PATENT OWNER IN THE ENJOYMENT OF JUST WHAT HE HAS BEEN GRANTED - AN
ABSTRACT RIGHT IN AN ABSTRUSE COMBINATION - WORTH WHATEVER SUCH A
TOTALITY MAY BE WORTH.  I SEE NO CONSTITUTIONAL OR STATUTORY AUTHORITY
FOR GIVING IT ADDITIONAL VALUE BY BRINGING INTO ITS MONOPOLY ALL OR ANY
OF THE UNPATENTABLE PARTS. 

FOR THESE REASONS I AGREE WITH THE COURT THAT NO CASE OF INFRINGEMENT
COULD HAVE BEEN MADE OUT HAD THE ISSUE BEEN RAISED WHEN IT WAS TIMELY. 
BUT I AGREE WITH THE VIEWS OF THE DOCTRINE OF RES ADJUDICATA EXPRESSED
BY MR. JUSTICE ROBERTS AND FOR THAT REASON JOIN THE DISSENT. 

FN1  I HOLMES-POLLOCK LETTERS, P. 53. 
..END :





















MERCOID CORP. V. HONEYWELL CO., 320 U.S. 680 


NOS. 58 AND 59.  ARGUED DECEMBER 9, 10, 1943.  - DECIDED JANUARY 3,
1944.  - 133 F.2D 811, REVERSED. 


AN OWNER OF A COMBINATION PATENT MAY NOT SO USE IT AS TO CONTROL
COMPETITION IN THE SALE OF AN UNPATENTED DEVICE, EVEN THOUGH THE
UNPATENTED DEVICE MAY BE THE DISTINGUISHING PART OF THE INVENTION; AND
A COURT OF EQUITY WILL GRANT OR WITHHOLD RELIEF ACCORDINGLY.  MERCOID
CORP. V. MID-CONTINENT INVESTMENT CO., ANTE, P. 661.  P. 684. 

MERCOID CORPORATION V. MINNEAPOLIS-HONEYWELL REGULATOR CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 319 U.S. 739, TO REVIEW A DECREE WHICH REVERSED IN PART
AND AFFIRMED IN PART A DECREE OF THE DISTRICT COURT, 43 F.SUPP.  878,
IN A PATENT INFRINGMENT SUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO MERCOID CORP. V. MID-CONTINENT
INVESTMENT CO., ANTE, P. 661.  ONE SUIT WAS INSTITUTED BY PETITIONER,
THE OTHER BY RESPONDENT.  PETITIONER SOUGHT A DECLARATORY JUDGMENT TO
THE EFFECT THAT THE FREEMAN PATENT NO. 1,813,732 WAS INVALID AND THAT
PETITIONER DID NOT INFRINGE IT, THAT RESPONDENT HAD USED THE FREEMAN
PATENT IN VIOLATION OF THE ANTI-TRUST LAWS, THAT RESPONDENT BE
RESTRAINED FROM THREATENING PETITIONER AND ITS CUSTOMERS WITH
INFRINGEMENT SUITS, THAT AN ACCOUNTING BE HAD AND TREBLE DAMAGES
AWARDED.  RESPONDENT IN ITS BILL SOUGHT A DECREE SUSTAINING THE
VALIDITY OF THE FREEMAN PATENT AND DECLARING THAT PETITIONER HAD
INFRINGED AND CONTRIBUTED TO THE INFRINGEMENT OF ITS CLAIMS.  IN THE
LATTER ACTION PETITIONER FILED A COUNTERCLAIM PRAYING FOR SUBSTANTIALLY
THE SAME RELIEF AS IN ITS EARLIER BILL.  AFTER ISSUES WERE JOINED THE
CAUSES WERE CONSOLIDATED AND TRIED TOGETHER.  THE DISTRICT COURT SAID
THAT THE FREEMAN PATENT WAS VALID AND THAT MERCOID WAS GUILTY OF
CONTRIBUTORY INFRINGEMENT.  BUT IT HELD THAT MINNEAPOLIS-HONEYWELL WAS
USING THE PATENT AS A MEANS OF CONTROLLING AN UNPATENTED DEVICE
CONTRARY TO THE RULE OF MORTON SALT CO. V. G.S. SUPPIGER CO., 314 U.S.
488.  ACCORDINGLY, IT DISMISSED BOTH COMPLAINTS.  43 F.SUPP.  878.  ON
APPEAL THE CIRCUIT COURT OF APPEALS HELD THAT THE PATENT CLAIMS IN
ISSUE WERE VALID AND THAT MERCOID HAD INFRINGED THEM.  BUT IT DISAGREED
WITH THE DISTRICT COURT THAT RESPONDENT HAD SOUGHT TO EXTEND THE SCOPE
OF THE PATENT IN VIOLATION OF THE ANTI-TRUST LAWS.  ACCORDINGLY, IT
REVERSED THE JUDGMENT OF THE DISTRICT COURT DISMISSING RESPONDENT'S
BILL AND AFFIRMED IT AS RESPECTS THE RELIEF CLAIMED BY PETITIONER.  133
F.2D 811. 

THE FREEMAN PATENT, AS FOUND BELOW, COVERS A SYSTEM OF HOT AIR
FURNACE CONTROL WHICH REQUIRES THREE THERMOSTATS FOR ITS OPERATION.  A
ROOM THERMOSTAT STARTS THE STOKER.  ANOTHER THERMOSTAT (OR LIMIT
SWITCH) BREAKS THE STOKER CIRCUIT WHEN THE AIR IN THE FURNACE REACHES A
PREDETERMINED TEMPERATURE, IRRESPECTIVE OF THE FACT THAT THE ROOM
THERMOSTAT MAY STILL CALL FOR HEAT.  THIS SECOND THERMOSTAT OPERATES TO
PREVENT UNSAFE CONDITIONS DUE TO OVERHEATING.  THE THIRD THERMOSTAT IS
ALSO IN THE FURNACE.  IT CONTROLS A FAN WHICH FORCES HOT AIR FROM THE
FURNACE TO THE ROOMS.  IT DOES NOT PERMIT THE FAN TO START UNTIL THE
AIR IN THE FURNACE REACHES A SPECIFIED DEGREE OF HEAT.  BUT AT THAT
POINT IT STARTS THE FAN WHICH CONTINUES TO RUN, EVEN THOUGH THE LIMIT
SWITCH HAS STOPPED THE STOKER, SO LONG AS THE FURNACE IS HOT AND THE
ROOM THERMOSTAT CALLS FOR HEAT.  THE DISTRICT COURT FOUND THAT THE
FREEMAN PATENT WAS A COMBINATION PATENT ON A SYSTEM OF FURNACE CONTROL
WHICH REQUIRES THOSE THREE THERMOSTATS FOR ITS OPERATION AND THAT IT
WAS NOT A PATENT ON "EITHER THE FAN SWITCH OR THE LIMIT SWITCH OR BOTH
OF THEM."  THAT FINDING WAS NOT DISTURBED BY THE CIRCUIT COURT OF
APPEALS, WHICH HELD THAT FREEMAN'S "ADVANCE IN THE ART" WAS THE
ARRANGEMENT OF THERMOSTATIC SWITCHES, SUBJECT TO FURNACE HEAT TO SECURE
IN CONNECTION WITH OTHER PARTS THE "SEQUENCE OF OPERATIONS" WHICH WE
HAVE DESCRIBED. 

MINNEAPOLIS-HONEYWELL HAS LICENSED FIVE OF ITS MANUFACTURING
COMPETITORS UNDER THE FREEMAN PATENT.  THE LICENSEES ARE GRANTED A NON
EXCLUSIVE RIGHT UNDER THE PATENT TO MAKE, USE AND SELL A "COMBINATION
FURNACE CONTROL" WHICH IS DEFINED AS A THERMOSTATIC SWITCH USABLE FOR A
FREEMAN INSTALLATION AND DESIGNED IN ONE UNIT TO CONTROL THE FAN AND
LIMIT CIRCUITS.  ROYALTY PAYMENTS TO MINNEAPOLIS-HONEYWELL ARE BASED ON
THE SALES OF THE COMBINATION FURNACE CONTROLS, ALTHOUGH THE CIRCUIT
COURT OF APPEALS FOUND THAT THE ONLY MINNEAPOLIS-HONEYWELL CONTROL
"WHICH GETS PROTECTION AS A RESULT OF THE LICENSES IS THE CONTROL
USABLE ONLY FOR A FREEMAN TYPE INSTALLATION."  EACH LICENSEE IS
REQUIRED TO INSERT IN ITS CATALOGUES OR OTHER SALES LITERATURE AND TO
ATTACH TO EACH COMBINATION FURNACE CONTROL SOLD A NOTICE TO THE EFFECT
THAT THE CONTROL INCLUDES A LICENSE FOR ONE INSTALLATION OF THE FREEMAN
HEATING SYSTEM.  THE LICENSES ESTABLISH MINIMUM PRICES FOR THE SALE OF
THE CONTROLS; AND THOSE PRICES MUST NOT BE CUT BY THE LICENSEES THROUGH
THE INCLUSION OF "EXTRAS" OR THROUGH THE REDUCTION OF CHARGES FOR
SERVICES.  PRICE LISTS ARE ATTACHED GOVERNING SALES TO MANUFACTURERS,
JOBBERS, WHOLESALERS, AND DEALERS.  EQUAL TERMS TO ALL LICENSEES ARE
PROVIDED.  MINNEAPOLIS-HONEYWELL TRIED ON SEVERAL OCCASIONS TO INDUCE
MERCOID TO TAKE A LICENSE.  BEING UNSUCCESSFUL IT BROUGHT ITS PRESENT
SUIT. 

NEITHER THE PETITIONER NOR THE RESPONDENT SELLS OR INSTALLS THE
FREEMAN SYSTEM IN FURNACES; THAT IS TO SAY, THEY DO NOT PRACTICE THE
INVENTION.  THEY ARE COMPETITORS IN SUPPLYING THE SWITCH TO CONTROL THE
FAN AND LIMIT CIRCUITS EMPLOYED IN SUCH SYSTEMS.  THAT SWITCH OR
COMBUSTION FURNACE CONTROL IS UNPATENTED  FN1  AND RESPONDENT CONCEDES
THAT IT IS "LESS THAN THE COMPLETE CLAIMED INVENTION."  BUT, AS WE HAVE
SAID, THE CIRCUIT COURT OF APPEALS TOOK THE VIEW THAT THAT CONTROL
PROVIDES "THE SEQUENCE OF OPERATIONS WHICH IS THE PRECISE ESSENCE OF
FREEMAN'S ADVANCE IN THE ART."  AND THE ACCUSED DEVICE HAS, ACCORDING
TO THE CIRCUIT COURT OF APPEALS, "NO OTHER USE THAN FOR ACCOMPLISHING
THE SEQUENCE OF OPERATIONS OF THE FREEMAN PATENT."  THE CIRCUIT COURT
OF APPEALS CONCLUDED THAT ALTHOUGH THE COMBUSTION FURNACE CONTROL WAS
UNPATENTED, IT SERVED "TO DISTINGUISH THE INVENTION" AND TO MARK THE
"ADVANCE IN THE ART" ACHIEVED BY THE FREEMAN PATENT.  IT ACCORDINGLY
HELD THAT THE PATENT LAWS PERMIT AND THE ANTI-TRUST LAWS DO NOT FORBID
THE CONTROL OVER THE SALE AND USE OF THE UNPATENTED DEVICE WHICH
MINNEAPOLIS-HONEYWELL SOUGHT TO ACHIEVE THROUGH ITS LICENSING
AGREEMENTS.  WE DO NOT AGREE, EVEN THOUGH WE ASSUME THE PATENT TO BE
VALID. 

THE FACT THAT AN UNPATENTED PART OF A COMBINATION PATENT MAY
DISTINGUISH THE INVENTION DOES NOT DRAW TO IT THE PRIVILEGES OF A
PATENT.  THAT MAY BE DONE ONLY IN THE MANNER PROVIDED BY LAW.  HOWEVER
WORTHY IT MAY BE, HOWEVER ESSENTIAL TO THE PATENT, AN UNPATENTED PART
OF A COMBINATION PATENT IS NO MORE ENTITLED TO MONOPOLISTIC PROTECTION
THAN ANY OTHER UNPATENTED DEVICE.  FOR AS WE POINTED OUT IN MERCOID V.
MID-CONTINENT INVESTMENT CO., SUPRA, A PATENT ON A COMBINATION IS A
PATENT ON THE ASSEMBLED OR FUNCTIONING WHOLE, NOT ON THE SEPARATE
PARTS.  THE LEGALITY OF ANY ATTEMPT TO BRING UNPATENTED GOODS WITHIN
THE PROTECTION OF THE PATENT IS MEASURED BY THE ANTI-TRUST LAWS NOT BY
THE PATENT LAW.  FOR THE REASONS STATED IN MERCOID V. MID-CONTINENT
INVESTMENT CO., SUPRA, THE EFFORT HERE MADE TO CONTROL COMPETITION IN
THIS UNPATENTED DEVICE PLAINLY VIOLATES THE ANTI-TRUST LAWS, EVEN APART
FROM THE PRICE-FIXING PROVISIONS OF THE LICENSE AGREEMENTS.  IT FOLLOWS
THAT PETITIONER IS ENTITLED TO BE RELIEVED AGAINST THE CONSEQUENCES OF
THOSE ACTS.  IT LIKEWISE FOLLOWS THAT RESPONDENT MAY NOT OBTAIN FROM A
COURT OF EQUITY ANY DECREE WHICH DIRECTLY OR INDIRECTLY HELPS IT TO
SUBVERT THE PUBLIC POLICY WHICH UNDERLIES THE GRANT OF ITS PATENT. 
MORTON SALT CO. V. G.S. SUPPIGER CO., 314 U.S. 488, 494; B.B. CHEMICAL
CO. V. ELLIS, 314 U.S. 495. 

THE JUDGMENT IS REVERSED AND THE CAUSES ARE REMANDED TO THE DISTRICT
COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  THERE IS SOME SUGGESTION THAT THIS DEVICE IS PATENTED.  BUT
ACCORDING TO THE DISTRICT COURT ANY SUCH PATENT "IS OWNED BY SOME
PERSON OTHER THAN MINNEAPOLIS-HONEYWELL AND MERCOID, SO THAT AS TO THEM
AND SO FAR AS THIS CASE IS CONCERNED, IT IS AN UNPATENTED DEVICE." 

MR. JUSTICE ROBERTS, MR. JUSTICE REED, MR. JUSTICE FRANKFURTER, AND
MR. JUSTICE JACKSON CONCUR IN THE RESULT ON THE AUTHORITY OF MORTON
SALT CO. V. G.S. SUPPIGER CO., 314 U.S. 488. 
..END :

















YONKERS V. UNITED STATES, 320 U.S. 685 


NO. 109.  ARGUED DECEMBER 13, 14, 1943.  - DECIDED JANUARY 3, 1944.  -
50 F.SUPP.  497, REVERSED. 


1.  IN A PROCEEDING BEFORE THE INTERSTATE COMMERCE COMMISSION UPON THE
APPLICATION OF A CARRIER, UNDER SEC. 1(18)-(20) OF THE INTERSTATE
COMMERCE ACT, FOR A CERTIFICATE AUTHORIZING ABANDONMENT OF PART OF ITS
LINES, THE JURISDICTION OF THE COMMISSION BEING CHALLENGED UNDER SEC.
1(22) OF THE ACT - WHICH PROVIDES THAT THE AUTHORITY OF THE COMMISSION
TO PERMIT ABANDONMENT OF LINES "SHALL NOT EXTEND" TO "STREET, SUBURBAN,
OR INTERURBAN ELECTRIC RAILWAYS, WHICH ARE NOT OPERATED AS A PART OR
PARTS OF A GENERAL STEAM RAILROAD SYSTEM OF TRANSPORTATION" - THE
COMMISSION SHOULD MAKE JURISDICTIONAL FINDINGS; AND, IN THE ABSENCE OF
SUCH FINDINGS, AN ORDER GRANTING THE CERTIFICATE SHOULD, ON REVIEW, BE
SET ASIDE.  P. 689. 

2.  A PROPER REGARD FOR LOCAL INTERESTS IN THE MANAGEMENT OF LOCAL
TRANSPORTATION FACILITIES REQUIRES THAT FEDERAL POWER BE EXERCISED ONLY
WHERE THE STATUTORY AUTHORITY AFFIRMATIVELY APPEARS.  P. 691. 

CITY OF YONKERS ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, REFUSING TO
SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE INTERSTATE COMMERCE ACT CONFERS UPON THE INTERSTATE COMMERCE
COMMISSION AUTHORITY TO ISSUE CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY ALLOWING ANY CARRIER SUBJECT TO THE ACT TO ABANDON "ALL OR
ANY PORTION" OF ITS LINE OF RAILROAD.  SEC. 1(18), (19), (20), 49
U.S.C. SEC. 1(18), (19), (20), 24 STAT. 379, 41 STAT. 477-478.  BUT THE
ACT ALSO PROVIDES THAT THAT AUTHORITY OF THE COMMISSION "SHALL NOT
EXTEND" TO THE ABANDONMENT "OF STREET, SUBURBAN, OR INTERURBAN ELECTRIC
RAILWAYS, WHICH ARE NOT OPERATED AS A PART OR PARTS OF A GENERAL STEAM
RAILROAD SYSTEM OF TRANSPORTATION."  SEC. 1(22), 49 U.S.C. SEC. 1(22). 

THE NEW YORK CENTRAL RAILROAD CO. FILED AN APPLICATION WITH THE
COMMISSION FOR A CERTIFICATE UNDER SEC. 1(18)-(20) OF THE ACT
AUTHORIZING IT TO ABANDON AN ELECTRIC BRANCH LINE EXTENDING 3.1 MILES
FROM VAN CORTLANDT PARK JUNCTION, NEW YORK CITY, TO GETTY SQUARE,
YONKERS, NEW YORK.  THIS LINE WAS CONSTRUCTED IN 1888 BY A PREDECESSOR
COMPANY FOR THE PURPOSE OF DEVELOPING SUBURBAN BUSINESS BETWEEN YONKERS
AND NEW YORK CITY.  THE LINE WAS ELECTRIFIED IN 1926 WITH THE HOPE THAT
THE SURBURBAN BUSINESS WOULD INCREASE.  IT IS NOW A PHYSICAL PART OF
THE NEW YORK CENTRAL'S PUTNAM DIVISION WITH WHICH IT CONNECTS AT VAN
CORTLANDT PARK JUNCTION.  THE PUTNAM DIVISION IN TURN CONNECTS WITH THE
HUDSON DIVISION WHICH IS PART OF THE MAIN LINE OF THE NEW YORK CENTRAL
FROM NEW YORK CITY TO CHICAGO.  THE HUDSON DIVISION FOLLOWS THE EAST
BANK OF THE HUDSON RIVER THROUGH YONKERS TO ALBANY.  THE PUTNAM
DIVISION EXTENDS NORTH FROM SEDGWICK AVENUE AND WEST 161ST STREET, NEW
YORK CITY, THROUGH YONKERS TO BREWSTER, NEW YORK.  THE PUTNAM DIVISION
LIES EAST OF, AND IS ROUGHLY PARALLEL WITH, THE HUDSON DIVISION.  IN
THE CITY OF YONKERS THE TWO DIVISIONS ARE ABOUT A MILE APART.  THE
ELECTRIC LINE IN QUESTION IS BETWEEN THE HUDSON AND PUTNAM DIVISIONS. 
GETTY SQUARE, ITS TERMINAL IN YONKERS, IS .3 MILE EAST OF THE YONKERS
STATION ON THE HUDSON DIVISION.  THE NEW YORK CENTRAL SYSTEM IS FOR THE
MOST PART OPERATED BY STEAM.  SOME PORTIONS OF ITS LINES ARE
ELECTRIFIED, INCLUDING THE HUDSON DIVISION BETWEEN NEW YORK CITY AND
HARMON, NEW YORK, AND HARLEM DIVISION SO FAR AS WHITE PLAINS, NEW YORK,
THE PUTNAM DIVISION BETWEEN SEDGWICK AVENUE AND VAN CORTLANDT PARK
JUNCTION, AND THE YONKERS LINE IN QUESTION.  WITH THE EXCEPTION NOTED,
NO PART OF THE PUTNAM DIVISION IS ELECTRIFIED, ITS TRAINS BEING
OPERATED BY STEAM. 

THIS YONKERS ELECTRIC BRANCH HANDLES NO FREIGHT, MAIL, EXPRESS, OR
MILK TRAFFIC AND NO INDUSTRIES ARE DEPENDENT ON IT FOR SUCH SERVICE. 
ITS TRAFFIC IS EXCLUSIVELY PASSENGER TRAFFIC, PRINCIPALLY COMMUTER
TRAVEL BETWEEN GETTY SQUARE AND THREE OTHER STATIONS IN YONKERS AND
GRAND CENTRAL STATION IN NEW YORK CITY.  THE TRAINS SERVING STATIONS ON
THIS YONKERS ELECTRIC BRANCH DO NOT GO THROUGH TO GRAND CENTRAL STATION
ON ACCOUNT OF THE CONGESTED CONDITION OF THE MAIN-LINE TRACKS
FUNNELLING INTO GRAND CENTRAL STATION.  ACCORDINGLY, THESE TRAINS RUN
ONLY FROM GETTY SQUARE TO VAN CORTLANDT PARK JUNCTION AND THENCE OVER
THE MAIN LINE OF THE PUTNAM DIVISION TO THE TERMINAL AT SEDGWICK
AVENUE.  PASSENGERS FROM YONKERS TO GRAND CENTRAL STATION MUST TRANSFER
TO HUDSON DIVISION TRAINS AT EITHER HIGH BRIDGE OR UNIVERSITY HEIGHTS
STATIONS WHICH ARE NORTH OF THE SEDGWICK AVENUE STATION.  TARIFFS OF
THE NEW YORK CENTRAL PROVIDE FOR ONE-WAY, MONTHLY-COMMUTATION, AND
OTHER TICKETS USABLE BETWEEN THE STATIONS IN YONKERS AND GRAND CENTRAL
STATION.  TIME TABLES OF THE NEW YORK CENTRAL DISCLOSE THE SERVICE ON
THIS ELECTRIC BRANCH.  AND ITS OPERATING RESULTS ARE REFLECTED IN THE
ACCOUNTS OF THE NEW YORK CENTRAL. 

THE TRAINS RUNNING ON THIS ELECTRIC BRANCH ARE COMPOSED OF TWO, THREE
OR FOUR CARS.  THE TRAINS ARE HAULED NOT BY A LOCOMOTIVE BUT BY SO
CALLED MULTIPLE UNIT CARS.  THE STRUCTURE OF THE LINE IS SUCH THAT
LOCOMOTIVES CANNOT BE USED ON IT.  THE TRAINS ON THIS ELECTRIC BRANCH
PROCEED ONLY TO GETTY SQUARE, YONKERS, AND NOT BEYOND. 

THE COMMISSION THOUGH ADVERTING TO A NUMBER OF THE FACTS WHICH WE
HAVE MENTIONED DID NOT ADDRESS ITSELF TO THE QUESTION WHETHER THIS
ELECTRIC BRANCH LINE WAS OR WAS NOT "OPERATED AS A PART OR PARTS OF A
GENERAL STEAM RAILROAD SYSTEM OF TRANSPORTATION" WITHIN THE MEANING OF
SEC. 1(22).  THE COMMISSION DID NOT UNDERTAKE TO REVIEW THE EVIDENCE
RELEVANT TO THAT ISSUE.  IT MADE NO FINDINGS RESPECTING IT.  IT
AUTHORIZED THE ABANDONMENT ON THE GROUNDS THAT CONTINUED OPERATION
WOULD IMPOSE "AN UNDUE AND UNNECESSARY BURDEN" UPON THE NEW YORK
CENTRAL AND UPON INTERSTATE COMMERCE.  FN1 THE COMMISSION SAYS THAT THE
QUESTION OF ITS JURISDICTION UNDER SEC. 1(22) WAS NEITHER PRESENTED IN
LIMINE NOR URGED IN THE BRIEFS, IN THE EXCEPTIONS TO THE EXAMINER'S
REPORT, OR IN THE ORAL ARGUMENTS.  IT WAS, HOWEVER, PRESENTED IN
PETITIONS FOR RECONSIDERATION WHICH THE COMMISSION DENIED WITHOUT
OPINION. 

THIS SUIT TO ENJOIN THE ORDER OF THE COMMISSION, BROUGHT BEFORE A
DISTRICT COURT OF THREE JUDGES (38 STAT. 219, 220, 28 U.S.C. SEC. 47)
WAS INITIATED BY THE PUBLIC SERVICE COMMISSION OF NEW YORK, THE CITY OF
YONKERS, AND A COMMITTEE OF YONKERS COMMUTERS.  FN2  THE JURISDICTION
OF THE COMMISSION WAS CHALLENGED BEFORE THE DISTRICT COURT.  AND THAT
OBJECTION WHICH WAS OVERRULED THERE (50 F.SUPP.  497) HAS BEEN RENEWED
ON THE APPEAL WHICH BRINGS THE CASE HERE.  28 U.S.C. SEC. 47A, SEC.
345. 

THE DISTRICT COURT IN SUSTAINING THE ORDER OF THE COMMISSION,
REVIEWED THE EVIDENCE AND CONCLUDED THAT THE OPERATION OF THIS ELECTRIC
BRANCH WAS "INTERTWINED WITH THE OPERATION OF THE SYSTEM AS A WHOLE." 
IT RELIED ESPECIALLY ON THE FACT THAT THE BULK OF THE TRAFFIC ON THIS
ELECTRIC BRANCH TRANSFERS AT HIGH BRIDGE OR UNIVERSITY HEIGHTS TO THE
HUDSON DIVISION AND THAT THOSE TRANSFERS MADE IT NECESSARY FOR THE NEW
YORK CENTRAL TO PROVIDE SEATS ON THE HUDSON DIVISION TRAINS FOR ALL THE
TRANSFERRED YONKERS PASSENGERS FOR THE REMAINING SHORT RUN TO GRAND
CENTRAL STATION. 

THE COMMISSION ITSELF HAS NOTED THAT IN THE "CONSTRUCTION OF THESE
EXCLUSION CLAUSES GREAT DIFFICULTY HAS BEEN EXPERIENCED, PARTICULARLY
IN DETERMINING THE ROADS PROPERLY CLASSIFIABLE AS INTERURBAN ELECTRIC
RAILWAYS."  ANNUAL REPORT (1928), P. 80.  THAT DIFFICULTY IS APPARENT
HERE BY THE DIVISION OF OPINION WHICH EXISTS IN THE COURT WHETHER THIS
YONKERS BRANCH IS AN "INTERURBAN ELECTRIC" RAILWAY WHICH IS "OPERATED
AS A PART" OF THE NEW YORK CENTRAL SYSTEM.  FN3  SEC. 1(22).  AS STATED
BY MR. JUSTICE BRANDEIS IN UNITED STATES V. IDAHO, 298 U.S. 105, 109,
THE DETERMINATION OF WHAT IS INCLUDED WITHIN THE EXEMPTION OF SEC.
1(22) INVOLVES A "MIXED QUESTION OF FACT AND LAW."  CONGRESS HAS NOT
LEFT THAT QUESTION EXCLUSIVELY TO ADMINISTRATIVE DETERMINATION; IT HAS
GIVEN THE COURTS THE FINAL SAY.  ID., P. 109.  IT IS SETTLED THAT THE
AID OF THE COMMISSION NEED NOT BE SOUGHT BEFORE THE JURISDICTION OF A
COURT IS INVOKED TO ENJOIN VIOLATIONS OF THE PROVISIONS IN QUESTION. 
TEXAS & PACIFIC RY. CO. V. GULF, C. & S.F. RY. CO., 270 U.S. 266.  AND
THE FACT THAT THE COMMISSION FAILS TO MAKE A FINDING ON THIS
JURISDICTIONAL QUESTION OBVIOUSLY DOES NOT PRECLUDE THE REVIEWING COURT
FROM MAKING THAT DETERMINATION INITIALLY.  BUT WE DEEM IT ESSENTIAL IN
CASES INVOLVING A REVIEW OF ORDERS OF THE COMMISSION FOR THE COURTS TO
DECLINE TO MAKE THAT DETERMINATION WITHOUT THE BASIC JURISDICTIONAL
FINDINGS FIRST HAVING BEEN MADE BY THE COMMISSION. 

THE POWER OF THE COMMISSION TO CONTROL THE ABANDONMENT OF INTRASTATE
BRANCHES OF INTERSTATE CARRIERS STEMS FROM THE POWER OF CONGRESS TO
PROTECT INTERSTATE COMMERCE FROM UNDUE BURDENS OR DISCRIMINATIONS. 
COLORADO V. UNITED STATES, 271 U.S. 153; TRANSIT COMMISSION V. UNITED
STATES, 284 U.S. 360; PURCELL V. UNITED STATES, 315 U.S. 381.  AND SEE
UNITED STATES V. HUBBARD, 266 U.S. 474, FOR AN APPLICATION OF THE
DOCTRINE OF THE SHREVEPORT CASE (HOUSTON, E. & W.T.R. CO. V. UNITED
STATES, 234 U.S. 342) TO THE INTRASTATE RATES OF INTERURBAN ELECTRIC
RAILROADS.  THE EXEMPTIONS CONTAINED IN SEC. 1(22) DO NOT NECESSARILY
REFLECT THE LACK OF CONSTITUTIONAL POWER TO DEAL WITH THE EXCEPTED
PHASES OF RAILROAD ENTERPRISE.  UNDERLYING SEC. 1(22) IS A
CONGRESSIONAL POLICY OF RESERVING EXCLUSIVELY TO THE STATES CONTROL
OVER THAT GROUP OF ESSENTIALLY LOCAL ACTIVITIES.  SEE H. REP. NO. 456,
66TH CONG., 1ST SESS., P. 18.  WE RECENTLY STATED THAT THE EXTENSION OF
FEDERAL CONTROL INTO THESE TRADITIONAL LOCAL DOMAINS IS A "DELICATE
EXERCISE OF LEGISLATIVE POLICY IN ACHIEVING A WISE ACCOMMODATION
BETWEEN THE NEEDS OF CENTRAL CONTROL AND THE LIVELY MAINTENANCE OF
LOCAL INSTITUTIONS."  PALMER V. MASSACHUSETTS, 308 U.S. 79, 84.  IN THE
APPLICATION OF THE DOCTRINE OF THE SHREVEPORT CASE, THIS COURT HAS
REQUIRED THE COMMISSION TO SHOW METICULOUS RESPECT FOR THE INTERESTS OF
THE STATES.  IT HAS INSISTED ON A "SUITABLE REGARD TO THE PRINCIPLE
THAT WHENEVER THE FEDERAL POWER IS EXERTED WITHIN WHAT WOULD OTHERWISE
BE THE DOMAIN OF STATE POWER, THE JUSTIFICATION OF THE EXERCISE OF THE
FEDERAL POWER MUST CLEARLY APPEAR."  FLORIDA V. UNITED STATES, 282 U.S.
194, 211-212.  IN THAT CASE THIS COURT SET ASIDE AN INTRASTATE RATE
ORDER OF THE COMMISSION BECAUSE OF THE "LACK OF THE BASIC OR ESSENTIAL
FINDINGS REQUIRED TO SUPPORT THE COMMISSION'S ORDER."  ID., P. 215. 
THE PRINCIPLE OF THE FLORIDA CASE IS APPLICABLE HERE.  THE QUESTION IS
NOT MERELY ONE OF ELABORATING THE GROUNDS OF DECISION AND BRINGING INTO
FOCUS WHAT IS VAGUE AND OBSCURE.  SEE UNITED STATES V. CHICAGO, M., ST.
P. & P.R. CO., 294 U.S. 499.  CF. SECURITIES & EXCHANGE COMMISSION V.
CHENERY CORP., 318 U.S. 80.  HERE AS IN THE FLORIDA CASE THE PROBLEM IS
WHETHER THE COURTS SHOULD SUPPLY THE REQUISITE JURISDICTIONAL FINDINGS
WHICH THE COMMISSION DID NOT MAKE AND TO WHICH IT EVEN FAILED TO MAKE
ANY REFERENCE.  FN4 

CONGRESS HAS WITHHELD FROM THE COMMISSION ANY POWER TO AUTHORIZE
ABANDONMENT OF CERTAIN TYPES OF RAILROAD LINES.  IT IS HARDLY ENOUGH TO
SAY THAT THE COMMISSION'S ORDERS MAY BE SET ASIDE BY THE COURTS WHERE
THE COMMISSION EXCEEDS ITS AUTHORITY.  THE COMMISSION HAS A SPECIAL
COMPETENCE TO DEAL WITH THE TRANSPORTATION PROBLEMS WHICH ARE REFLECTED
IN THESE QUESTIONS.  THE CONGRESS HAS ENTRUSTED TO THE COMMISSION THE
INITIAL RESPONSIBILITY FOR DETERMINING THROUGH APPLICATION OF THE
STATUTORY STANDARDS THE APPROPRIATE LINE BETWEEN THE FEDERAL AND STATE
DOMAINS.  PROPER REGARD FOR THE RIGHTFUL CONCERN OF LOCAL INTERESTS IN
THE MANAGEMENT OF LOCAL TRANSPORTATION FACILITIES MAKES DESIRABLE THE
REQUIREMENT THAT FEDERAL POWER BE EXERCISED ONLY WHERE THE STATUTORY
AUTHORITY AFFIRMATIVELY APPEARS.  THE SACRIFICE OF THESE LEGITIMATE
LOCAL INTERESTS MAY BE AS READILY ACHIEVED THROUGH THE COMMISSION'S
OVERSIGHT OR NEGLECT (ILLINOIS COMMERCE COMMISSION V. THOMSON, 318 U.S.
675) AS BY IMPROPER FINDINGS.  THE INSISTENCE THAT THE COMMISSION MAKE
THESE JURISDICTIONAL FINDINGS BEFORE IT UNDERTAKES TO ACT NOT ONLY
GIVES ADDED ASSURANCE THAT THE LOCAL INTERESTS FOR WHICH CONGRESS
EXPRESSED ITS SOLICITUDE WILL BE SAFEGUARDED.  IT ALSO GIVES TO THE
REVIEWING COURTS THE ASSISTANCE OF AN EXPERT JUDGMENT ON A KNOTTY PHASE
OF A TECHNICAL SUBJECT. 

WE ARE ASKED TO PRESUME THAT THE COMMISSION, KNOWING THE LIMIT OF ITS
AUTHORITY, CONSIDERED THIS JURISDICTIONAL QUESTION AND DECIDED TO ACT
BECAUSE OF ITS CONVICTION THAT THIS BRANCH LINE WAS NOT EXEMPT BY
REASON OF SEC. 1(22).  BUT THAT IS TO DEAL TOO CAVALIERLY WITH THE
CONGRESSIONAL MANDATE AND WITH THE LOCAL INTERESTS WHICH ARE PRESSING
FOR RECOGNITION.  WHERE A FEDERAL AGENCY IS AUTHORIZED TO INVOKE AN
OVERRIDING FEDERAL POWER EXCEPT IN CERTAIN PRESCRIBED SITUATIONS AND
THEN TO LEAVE THE PROBLEM TO TRADITIONAL STATE CONTROL, THE EXISTENCE
OF FEDERAL AUTHORITY TO ACT SHOULD APPEAR AFFIRMATIVELY AND NOT REST ON
INFERENCE ALONE. 

THIS IS NOT TO INSIST ON FORMALITIES AND TO BURDEN THE ADMINISTRATIVE
PROCESS WITH RITUALISTIC REQUIREMENTS.  IT ENTAILS A MATTER OF GREAT
SUBSTANCE.  IT REQUIRES THE COMMISSION TO HEED THE MANDATES OF THE ACT
AND TO MAKE THE EXPERT DETERMINATIONS WHICH ARE CONDITIONS PRECEDENT TO
ITS AUTHORITY TO ACT. 

WE INTIMATE NO OPINION ON THE MERITS OF THE CONTROVERSY.  FOR IN
ABSENCE OF THE REQUISITE JURISDICTIONAL FINDINGS WE THINK THE ORDER OF
THE COMMISSION SHOULD HAVE BEEN SET ASIDE.  REVERSED. 

FN1  THE CERTIFICATE AUTHORIZES A COMPLETE ABANDONMENT OF THE YONKERS
BRANCH, INCLUDING DISMANTLEMENT AND SALVAGING. 

FN2  THE PUBLIC SERVICE COMMISSION OF NEW YORK, WHICH TOOK THE LEAD
IN ATTACKING THE ORDER OF THE COMMISSION BEFORE THE DISTRICT COURT BUT
WHICH HAS NOT APPEARED HERE, ASSERTED IN ITS COMPLAINT THAT AUTHORITY
TO DISCONTINUE THE FOUR STATIONS WAS REQUIRED BY NEW YORK LAW BUT HAD
NOT BEEN SOUGHT OR OBTAINED.    FN3  CF. PIEDMONT & NORTHERN R. CO. V.
INTERSTATE COMMERCE COMMISSION, 286 U.S. 299, 307, AND UNITED STATES V.
CHICAGO NORTH SHORE & M.R. CO., 288 U.S. 1, 9-12, WHICH EMPHASIZE IN
DETERMINING THE STATUS OF INDEPENDENT ELECTRIC ROADS THE DOMINANCE OF
INTERURBAN PASSENGER SERVICE AND THE PREPONDERANCE OF LOCAL TRAFFIC. 

FN4  FOR CASES DEALING WITH THE EXCEPTION OF SUBURBAN OR INTERURBAN
ELECTRIC RAILWAYS WHERE THE COMMISSION HAS PASSED ON THE JURISDICTIONAL
QUESTION SEE IN THE MATTER OF MICHIGAN UNITED RYS.  CO., 67 I.C.C. 452;
ABANDONMENT OF LINE BY BOISE VALLEY TRACTION CO., 79 I.C.C. 167;
PROPOSED ABANDONMENT BY LEWISTON & YOUNGSTOWN FRONTIER RY. CO., 124
I.C.C. 219; PROPOSED CONSTRUCTION BY PIEDMONT & NORTHERN RY. CO., 138
I.C.C. 363, 372; UNIFIED OPERATION AT LOS ANGELES HARBOR, 150 I.C.C.
649, 661; GLENDALE & MONTROSE RY. PROPOSED ABANDONMENT, 166 I.C.C.
625. 

THE REQUISITE FINDING WAS MADE BY THE COMMISSION IN THE OREGON SHORT
LINE CASE (193 I.C.C. 697, 705) IN WHICH THE ORDER OF THE COMMISSION
WAS SET ASIDE BY UNITED STATES V. IDAHO, SUPRA. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

CONGRESS HAS EMPOWERED THE INTERSTATE COMMERCE COMMISSION TO
AUTHORIZE A RAILROAD, WHEN PUBLIC CONVENIENCE PERMITS, TO ABANDON ANY
PORTION OF ITS LINE.  BUT WHEN SUCH PORTION IS A SUBURBAN OR INTERURBAN
ELECTRIC RAILWAY, ABANDONMENT MAY BE AUTHORIZED ONLY IF IT IS PART OF A
GENERAL STEAM RAILROAD SYSTEM OF TRANSPORTATION.  SEC. 1(18) AND (22)
OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. SEC. 1(18) AND
(22).  THIS COURT HAS HELD THAT WHETHER SUCH A LINE IS OF A CHARACTER
TO PERMIT ABANDONMENT UNDER FEDERAL AUTHORITY NEED NOT BE DETERMINED IN
THE FIRST INSTANCE BY THE INTERSTATE COMMERCE COMMISSION; AND SUCH
DETERMINATION WHEN MADE DOES NOT FORECLOSE AN INDEPENDENT JUDICIAL
JUDGMENT.  TEXAS & PACIFIC RY. CO. V. GULF, C. & S.F. RY. CO., 270 U.S.
266, AND UNITED STATES V. IDAHO, 298 U.S. 105.  ON SUCH AN INDEPENDENT
EXAMINATION OF THE ISSUE THE COURT BELOW HAD NO DOUBT THAT THE YONKERS
BRANCH OF THE NEW YORK CENTRAL, THE PORTION OF THE CENTRAL LINES FOR
WHICH ABANDONMENT WAS HERE SOUGHT, WAS NOT "A SUBURBAN OR INTERURBAN
LINE UNCONNECTED WITH THE REST OF THE CENTRAL'S RAILROAD SYSTEM" BUT
WAS IN FACT "INTERTWINED WITH THE OPERATION OF THE (NEW YORK CENTRAL
RAILROAD) SYSTEM AS A WHOLE."  50 F.SUPP.  497, 498.  THE RECORD AMPLY
SUSTAINS THIS CONCLUSION.  IF THIS COURT, HOWEVER, ON ITS OWN ESTIMATE
OF THE VARIOUS ELEMENTS IN THE FINANCIAL, PHYSICAL AND TRANSPORTATION
RELATIONS BETWEEN THE REST OF THE NEW YORK CENTRAL LINES AND THIS
YONKERS BRANCH, HAD STRUCK A CONTRARY BALANCE AND FOUND THAT THE
YONKERS BRANCH WAS NOT OPERATED AS A PART OF THE GENERAL NEW YORK
CENTRAL SYSTEM, I SHOULD NOT HAVE DEEMED THE MATTER OF SUFFICIENT
IMPORTANCE TO WARRANT EXPRESSION OF DISSENT. 

BUT THE COURT DOES NOT DECIDE ON THE MERITS.  IN EFFECT, IT REMITS
THE CONTROVERSY TO THE INTERSTATE COMMERCE COMMISSION ON THE GROUND
THAT THE COMMISSION DID NOT MAKE A FORMAL FINDING, DESCRIBED AS
"JURISDICTIONAL," THAT THE YONKERS BRANCH WAS IN FACT "OPERATED AS A
PART  ...  OF A GENERAL STEAM RAILROAD SYSTEM OF TRANSPORTATION."  THE
COMMISSION MAY VERY WELL NOW FORMALLY MAKE SUCH A FINDING OF A
CONNECTION BETWEEN THE YONKERS BRANCH AND THE NEW YORK CENTRAL, WHICH
IN FACT IS WRIT LARGE IN THE COMMISSION'S REPORT IN GRANTING THE
APPLICATION FOR ABANDONMENT, AND THE WEARY ROUND OF LITIGATION MAY BE
REPEATED TO THE FUTILE END OF HAVING THIS COURT THEN, FORSOOTH, EXPRESS
AN OPINION ON THE MERITS OPPOSED TO THAT OF THE COMMISSION AND THE
DISTRICT COURT.  THIS DANGER IF NOT LIKELIHOOD OF THUS MARCHING THE
KING'S MEN UP THE HILL AND THEN MARCHING THEM DOWN AGAIN SEEMS TO ME A
MODE OF JUDICIAL ADMINISTRATION TO WHICH I CANNOT YIELD CONCURRENCE.  I
THINK THE CASE SHOULD BE DISPOSED OF ON THE MERITS BY AFFIRMING THE
JUDGMENT OF THE DISTRICT COURT. 

THIS SEEMS TO ME ALL THE MORE CALLED FOR SINCE I FIND NO DEFECT IN
THE FOUNDATION OF THE COMMISSION'S ORDER.  NO DOUBT THE INTERSTATE
COMMERCE COMMISSION LIKE OTHER ADMINISTRATIVE AGENCIES SHOULD KEEP
WITHIN LEGAL BOUNDS AND COURTS SHOULD KEEP THEM THERE, IN SO FAR AS
CONGRESS HAS ENTRUSTED THEM WITH JUDICIAL REVIEW OVER ADMINISTRATIVE
ACTS.  OF COURSE WHEN A STATUTE MAKES INDISPENSABLE "AN EXPRESS
FINDING," AN EXPRESS FINDING IS IMPERATIVE, SEE WICHITA RAILROAD &
LIGHT CO. V. PUBLIC UTILITIES COMM'N, 260 U.S. 48, 59.  BUT THE HISTORY
OF THE INTERSTATE COMMERCE ACT AND ITS AMENDMENTS ILLUMINE THE
DIFFERENT LEGAL FUNCTIONS EXPRESSED BY THE TERM FINDINGS.  WHEN
CONGRESS EXACTS FROM THE COMMISSION FORMAL FINDINGS THERE IS AN END TO
THE MATTER.  FOR CERTAIN DUTIES OF THE COMMISSION AND AT CERTAIN STAGES
IN THE HISTORY OF THE INTERSTATE COMMERCE ACT, CONGRESS DID REQUIRE
FORMAL FINDINGS, BUT EXPERIENCE LED CONGRESS LATER TO DISPENSE WITH
SUCH FORMAL REQUIREMENTS.  SEE MANUFACTURERS RY. CO. V. UNITED STATES,
246 U.S. 457, 489-90.  BUT COURTS HAVE ALSO SPOKEN OF THE NEED OF
FINDINGS AS THE BASIS OF VALIDITY OF AN ORDER BY THE INTERSTATE
COMMERCE COMMISSION IN THE ABSENCE OF A CONGRESSIONAL DIRECTION FOR
FINDINGS.  THE REQUIREMENT OF FINDINGS IN SUCH A CONTEXT IS MERELY PART
OF THE NEED FOR COURTS TO KNOW WHAT IT IS THAT THE COMMISSION HAS
REALLY DETERMINED IN ORDER THAT THEY MAY KNOW WHAT TO REVIEW.  "WE MUST
KNOW WHAT A DECISION MEANS BEFORE THE DUTY BECOMES OURS TO SAY WHETHER
IT IS RIGHT OR WRONG."  SEE UNITED STATES V. CHICAGO, M., ST. P. & P.R.
CO., 294 U.S. 499, 509-511. 

THIS IS THE REAL GROUND FOR THE DECISIONS WHICH HAVE FOUND INTERSTATE
COMMERCE COMMISSION ORDERS WANTING IN NECESSARY FINDINGS.  THEY HAVE
ALL BEEN CASES WHERE THE DETERMINATION OF AN ISSUE IS NOT OPEN TO
INDEPENDENT JUDGMENT BY THIS COURT, AND WHERE THE CASE AS IT CAME HERE
RESTED ON CONFLICTING INFERENCES OF FACT LEFT UNRESOLVED BY THE
COMMISSION.  SUCH WERE THE CIRCUMSTANCES, FOR INSTANCE, IN FLORIDA V.
UNITED STATES, 282 U.S. 194, PARTICULARLY AT 214-215, AND UNITED STATES
V. BALTIMORE & OHIO R. CO., 293 U.S. 454, 455, PARTICULARLY AT 463
464.  FINDINGS IN THIS SENSE IS A WAY OF DESCRIBING THE DUTY OF THE
COMMISSION TO DECIDE ISSUES ACTUALLY IN CONTROVERSY BEFORE IT.
ANALYSIS IS NOT FURTHERED BY SPEAKING OF SUCH FINDINGS AS
"JURISDICTIONAL" AND NOT EVEN WHEN - TO ADAPT A FAMOUS PHRASE -
JURISDICTIONAL IS SOFTENED BY A QUASI.  "JURISDICTION" COMPETES WITH
"RIGHT" AS ONE OF THE MOST DECEPTIVE OF LEGAL PITFALLS.  THE OPINIONS
IN CROWELL V. BENSON, 285 U.S. 22, AND THE CASUISTRIES TO WHICH THEY
HAVE GIVEN RISE BEAR UNEDIFYING TESTIMONY OF THE MORASS INTO WHICH ONE
IS LED IN WORKING OUT PROBLEMS OF JUDICIAL REVIEW OVER ADMINISTRATIVE
DECISIONS BY LOOSE TALK ABOUT JURISDICTION. 

THE NUB OF THE MATTER REGARDING THE REQUIREMENT OF FINDINGS, WHERE
THE FORMAL MAKING OF THEM IS NOT LEGISLATIVELY COMMANDED, IS INDICATED
IN UNITED STATES V. LOUISIANA, 290 U.S. 70.  REVIEWING THE VALIDITY OF
THE COMMISSION'S ORDER IS THE SERIOUS BUSINESS OF SITTING IN JUDGMENT
UPON A TRIBUNAL OF GREAT TRADITIONS AND LARGE RESPONSIBILITY.  AN ORDER
OF THE COMMISSION SHOULD NOT BE VIEWED IN A HYPERCRITICAL SPIRIT NOR
EVEN AS THOUGH ELEGANTIA JURIS WERE OUR CONCERN.  WE SHOULD JUDGE A
CHALLENGED ORDER OF THE COMMISSION BY "THE REPORT, READ AS A WHOLE,"
290 U.S. SUPRA AT 80, AND BY THE RECORD AS A WHOLE OUT OF WHICH THE
REPORT AROSE. 

VIEWING ITS ORDER IN THIS LIGHT MAKES PLAIN ENOUGH WHY THE COMMISSION
NEVER FORMALLY STATED THAT THE LINE WHICH IT AUTHORIZED TO BE ABANDONED
WAS IN FACT OPERATED AS PART OF THE NEW YORK CENTRAL SYSTEM.  IT NEVER
FORMALLY MADE THIS STATEMENT BECAUSE IT WAS NEVER QUESTIONED BEFORE IT.
ON THE FACE OF THE APPLICATION, IN THE REPORT PROPOSED BY THE
COMMISSIONER'S EXAMINER, AND IN THE REPORT OF THE COMMISSION, BY
DIVISION 4, AUTHORIZING THE ISSUANCE OF A CERTIFICATE OF ABANDONMENT,
THE FACTS SHOWING THAT THE YONKERS BRANCH WAS A PART OF THE OPERATING
SYSTEM OF THE NEW YORK CENTRAL ARE SET FORTH IN DETAIL.  EXTENSIVE
EXCEPTIONS WERE TAKEN TO THE EXAMINER'S REPORT BY THE CITY OF YONKERS
AND A COMMITTEE OF YONKERS COMMUTERS BUT NOT EVEN REMOTELY DID THEY
TAKE THE POINT WHICH IS NOW MADE THE GROUND FOR INVALIDATING THE
COMMISSION'S ORDER.  ELABORATE PETITIONS FOR REHEARING WERE FILED BY
THE PROTESTANTS, INCLUDING THE PUBLIC SERVICE COMMISSION OF NEW YORK,
AS THE GUARDIAN OF THE LOCAL INTERESTS OF NEW YORK,  FN1  BUT NOT ONE
OF THESE PETITIONS RAISED THE OBJECTION NOW RAISED.  THE JURISDICTION
OF THE COMMISSION WAS QUESTIONED, BUT NO CLAIM WAS MADE THAT THE
YONKERS BRANCH WAS NOT AN OPERATING PART OF THE NEW YORK CENTRAL.  THE
CITY OF YONKERS ENUMERATED FOUR GROUNDS IN CHALLENGING THE JURISDICTION
OF THE COMMISSION, BUT IT DID NOT SPECIFY THE ONE NOW TAKEN BY THE
COURT.  THE COMMITTEE OF COMMUTERS RESTED THEIR CLAIM OF WANT OF
JURISDICTION ON THE SPECIFIC GROUNDS THAT "(1) THE LINE SOUGHT TO BE
ABANDONED IS AN INTERURBAN ELECTRIC PASSENGER RAILWAY LOCATED WHOLLY
WITHIN THE STATE OF NEW YORK AND (2)  ...  THE ALLEGED ANNUAL OPERATING
DEFICIT" OF THE YONKERS BRANCH WAS TOO INSIGNIFICANT TO BURDEN THE
OPERATION OF THE NEW YORK CENTRAL.  EXERCISING THE DISCRETION WHICH
CONGRESS EXPLICITLY CONFERRED UPON IT, THE FULL COMMISSION DENIED THE
PETITION FOR REHEARING.  INTERSTATE COMMERCE ACT, SEC. 17(6).  IN ANY
FAIR CONSTRUCTION OF THE ACTION OF THE COMMISSION SUCH A DENIAL IS AN
ADVERSE FINDING OF SUCH CLAIMS AS WERE MADE IN THE PETITIONS FOR
REHEARING.  THE CRUCIAL FACT IS THAT ONLY WHEN THE PRESENT BILL WAS
FILED IN THE COURT BELOW DID THE OBJECTION WHICH THE COURT NOW SUSTAINS
EMERGE IN THE SPECIFIC CLAIM THAT THE YONKERS "BRANCH IS NOT OPERATED
AS A PART OR PARTS OF A GENERAL STEAM RAILROAD SYSTEM OF
TRANSPORTATION." 

CAN THERE BE ANY DOUBT THAT THIS CONTENTION WAS NOT PUT TO THE
COMMISSION BECAUSE IT WAS AN AFTERTHOUGHT?  THIS ISSUE WAS NEVER
TENDERED TO THE COMMISSION BECAUSE THE FACTS WHICH DENY IT WERE NEVER
QUESTIONED IN THE PROCEEDINGS CONDUCTED BEFORE IT WITH VIGOR AND
ABILITY BY SEVERAL PROTESTANTS DURING THE THREE SUCCESSIVE STAGES THAT
PRECEDED A CHALLENGE IN THE COURTS. 

THE CASE IS NOW SENT BACK TO THE COMMISSION.  THE FACTS REGARDING THE
RELATION OF THE YONKERS BRANCH TO THE NEW YORK CENTRAL ARE SPREAD AT
LARGE UPON THE RECORD AND ARE NOT IN CONTROVERSY.  IN VIEW OF THE THREE
PROCEEDINGS BEFORE THE COMMISSION IT IS REASONABLE TO ASSUME THAT THE
COMMISSION WILL ADD TO ITS REPORT THE FORMAL FINDING NOW REQUESTED OF
IT.  IF THE CASE THEN RETURNS HERE I FIND IT TOO HARD TO BELIEVE THAT
THIS COURT WOULD REJECT THE CONCLUSION OF THE COMMISSION AND OF THE
LOWER COURT THAT THE YONKERS BRANCH IS AN OPERATING PART OF THE NEW
YORK CENTRAL WITHIN SEC. 1(22).  IS NOT INSISTENCE ON SUCH AN EMPTY
FORMALISM A REVERSION TO SEVENTEENTH CENTURY PLEADING WHICH REQUIRED
TALISMANIC PHRASES, AS FOR INSTANCE THAT A SELLER COULD NOT BE HELD TO
WARRANT THAT HE SOLD WHAT HE PURPORTED TO SELL UNLESS THE BUYER PLEADED
WARRANTIZANDO VENDIDIT OR BARGANIZASSET?  ON THE OTHER HAND, IF THE
COURT WITH ALL THE FACTS BEFORE IT DOES NOT THINK THE YONKERS BRANCH IS
A PART OF THE RAILWAY OPERATIONS OF THE NEW YORK CENTRAL, NOW IS THE
TIME TO SAY SO. 

FN1  DUE CONCERN FOR LOCAL INTERESTS IN THE ADMINISTRATION OF THE
INTERSTATE COMMERCE ACT HARDLY CALLS FOR AN EXAGGERATED CONCERN FOR
FORMAL FINDINGS.  THE INTERSTATE COMMERCE ACT RELIES PRIMARILY ON STATE
AUTHORITIES FOR THE SAFEGUARDING OF LOCAL INTERESTS.  IT IS THEREFORE
RELEVANT TO NOTE THAT THE NEW YORK PUBLIC SERVICE COMMISSION, WHICH IS
CHARGED WITH THE DUTY OF PROTECTING THE LOCAL INTERESTS OF NEW YORK
AGAINST FEDERAL ENCROACHMENTS AND WHICH DOES NOT APPEAR TO HAVE BEEN
UNALERT IN DOING SO, HAS ACQUIESCED IN THE DECISION BELOW AND IS NOT
HERE URGING THE LOCAL INTEREST ON WHICH THE DECISION OF THIS COURT
SEEMS TO BE BASED.  THAT THE STATE AGENCY HAD BEST BE LOOKED TO FOR THE
VINDICATION OF CONFLICTING LOCAL INTERESTS WITHIN A STATE IS WELL
ILLUSTRATED BY THE FACT THAT WHILE THE CITY OF YONKERS PROTESTED
AGAINST THE ABANDONMENT OF THE BRANCH LINE, THE CITY OF NEW YORK URGED
IT. 

MR. JUSTICE REED AND MR. JUSTICE JACKSON JOIN IN THIS OPINION. 
..END :
















MAGNOLIA PETROLEUM CO. V. HUNT, 320 U.S. 430 


NO. 29.  SUBMITTED OCTOBER 20, 1943.  - DECIDED DECEMBER 20, 1943.  - 10
SO.2D 109, REVERSED. 


1.  SINCE EACH OF THE STATES OF THE UNION HAS CONSTITUTIONAL AUTHORITY
TO MAKE ITS OWN LAW WITH RESPECT TO PERSONS AND EVENTS WITHIN ITS
BORDERS, THE FULL FAITH AND CREDIT CLAUSE DOES NOT ORDINARILY REQUIRE
IT TO SUBSTITUTE FOR ITS OWN LOCAL LAW THE CONFLICTING LAW OF ANOTHER
STATE, EVEN THOUGH THAT LAW IS OF CONTROLLING FORCE IN THE COURTS OF
THAT STATE WITH RESPECT TO THE SAME PERSONS AND EVENTS.  P. 436. 

2.  UNDER THE FULL FAITH AND CREDIT CLAUSE, JUDGMENTS ARE, FOR MOST
PURPOSES, UPON A FOOTING DIFFERENT FROM THE LOCAL LAW OF A STATE, WHEN
JUDICIAL RECOGNITION OF EITHER IS SOUGHT IN ANOTHER STATE.  P. 437. 

3.  WITH FEW EXCEPTIONS, THE FULL FAITH AND CREDIT CLAUSE RENDERS
THAT WHICH HAS BEEN ADJUDICATED IN ONE STATE RES JUDICATA TO THE SAME
EXTENT IN EVERY OTHER.  P. 438. 

WHEN A STATE COURT REFUSES CREDIT TO THE JUDGMENT OF A SISTER STATE,
AN ASSERTED FEDERAL RIGHT IS DENIED AND THE SUFFICIENCY OF THE GROUNDS
OF DENIAL ARE FOR THIS COURT TO DETERMINE.  P. 443. 

THESE RESULTS FLOW FROM THE UNIFYING PURPOSE OF THE FULL FAITH AND
CREDIT CLAUSE TO GIVE NATION-WIDE EFFECT TO RIGHTS JUDICIALLY
ESTABLISHED IN ANY PART OF THE NATION.  P. 439. 

4.  RESPONDENT, RESIDENT IN LOUISIANA AND THERE EMPLOYED BY
PETITIONER, WAS INJURED IN TEXAS IN THE COURSE OF HIS EMPLOYMENT. 
RESPONDENT SOUGHT AND WAS AWARDED COMPENSATION UNDER THE TEXAS
WORKMEN'S COMPENSATION LAW.  PAYMENTS WERE MADE AS REQUIRED BY THE
AWARD, WHICH BECAME FINAL.  IN TEXAS, A COMPENSATION AWARD WHICH HAS
BECOME FINAL IS RES JUDICATA, AND IS ENTITLED TO THE SAME FAITH AND
CREDIT AS A JUDGMENT OF A COURT, AND AN AWARD MAY NOT BE HAD WHEN AN
EMPLOYEE HAS SOUGHT AND RECEIVED FOR HIS INJURY COMPENSATION UNDER THE
LAWS OF ANOTHER STATE.  RESPONDENT LATER BROUGHT SUIT IN A LOUISIANA
COURT FOR A FURTHER RECOVERY UNDER THE LOUISIANA WORKMEN'S COMPENSATION
LAW, AND OBTAINED A JUDGMENT AGAINST THE EMPLOYER FOR THE AMOUNT OF
COMPENSATION FIXED BY THAT LAW, LESS THE AMOUNT RECEIVED UNDER THE
TEXAS AWARD.  HELD: 

(1) UNDER THE FULL FAITH AND CREDIT CLAUSE, THE TEXAS COMPENSATION
AWARD WAS A BAR TO RECOVERY IN THE LOUISIANA PROCEEDING.  CHICAGO, R.I.
& P. RY. CO. V. SCHENDEL, 270 U.S. 611, FOLLOWED.  P. 441. 

(2)  THE INTEREST OF LOUISIANA IN AWARDING COMPENSATION TO LOUISIANA
EMPLOYEES WHO ARE INJURED OUT OF THE STATE - VIS-A-VIS THE INTEREST OF
TEXAS IN AWARDING COMPENSATION FOR AN INJURY OCCURRING WITHIN ITS
BORDERS - IS NOT SUFFICIENT TO PERMIT IT TO IGNORE THE BAR OF THE TEXAS
AWARD.  P. 440. 

(3)  THE LIABILITY ESTABLISHED BY THE LOUISIANA JUDGMENT IS NOT
RECONCILABLE WITH THE RIGHTS CONFERRED ON THE EMPLOYER BY THE TEXAS
AWARD AND THE FULL FAITH AND CREDIT CLAUSE.  P. 442. 

(4)  WHETHER THE PROCEEDING BEFORE THE TEXAS BOARD BE REGARDED AS A
"JUDICIAL PROCEEDING" OR ITS AWARD IS A "RECORD" WITHIN THE MEANING OF
THE FULL FAITH AND CREDIT CLAUSE AND THE ACT OF CONGRESS IMPLEMENTING
IT, BOTH JUDICIAL PROCEEDINGS AND RECORDS ARE REQUIRED TO BE GIVEN FULL
FAITH AND CREDIT.  P. 443. 

(5)  THE SUGGESTION THAT THE TEXAS AWARD DOES NOT BAR THE RECOVERY IN
LOUISIANA BECAUSE THE EMPLOYEE'S SUIT THERE WAS ON A DIFFERENT CAUSE OF
ACTION IS UNTENABLE.  P. 443. 

IT IS UNNECESSARY TO DECIDE WHAT EFFECT WOULD BE REQUIRED TO BE GIVEN
TO THE TEXAS AWARD IF UNDER TEXAS LAW AN AWARD OF COMPENSATION IN
ANOTHER STATE WOULD NOT BAR AN AWARD IN TEXAS.  P. 443. 

MAGNOLIA PETROLEUM CO. V. HUNT. 

CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, OF LOUISIANA. 

CERTIORARI, 319 U.S. 734, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE PLAINTIFF IN A SUIT BY AN EMPLOYEE AGAINST AN EMPLOYER TO RECOVER
COMPENSATION FOR AN INJURY RECEIVED IN THE COURSE OF THE EMPLOYMENT. 
THE HIGHEST COURT OF THE STATE REFUSED WRITS OF CERTIORARI AND REVIEW. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER, UNDER THE FULL FAITH AND CREDIT
CLAUSE, ART. IV, SEC. 1 OF THE CONSTITUTION OF THE UNITED STATES, AN
AWARD OF COMPENSATION FOR PERSONAL INJURY UNDER THE TEXAS WORKMEN'S
COMPENSATION LAW, TITLE 130 OF THE REVISED CIVIL STATUTES OF TEXAS,
BARS A FURTHER RECOVERY OF COMPENSATION FOR THE SAME INJURY UNDER THE
LOUISIANA WORKMEN'S COMPENSATION LAW, TITLE 34, CHAPTER 15 OF THE
LOUISIANA GENERAL STATUTES. 

MAGNOLIA PETROLEUM COMPANY, PETITIONER HERE, EMPLOYED RESPONDENT IN
LOUISIANA AS A LABORER IN CONNECTION WITH THE DRILLING OF OIL WELLS. 
IN THE COURSE OF HIS EMPLOYMENT RESPONDENT, A LOUISIANA RESIDENT, WENT
FROM LOUISIANA TO TEXAS, AND WHILE WORKING THERE FOR PETITIONER ON AN
OIL WELL, HE WAS INJURED BY A FALLING DRILL STEM.  HE SOUGHT AND
PROCURED IN TEXAS AN AWARD OF COMPENSATION FOR HIS INJURY UNDER ITS
WORKMEN'S COMPENSATION LAW,  FN1  AND PETITIONER'S INSURER MADE
PAYMENTS OF COMPENSATION AS REQUIRED BY THE STATUTE AND THE AWARD.  THE
AWARD BECAME FINAL IN ACCORDANCE WITH THE TERMS OF THE TEXAS STATUTE. 
FN2 

RESPONDENT THEN BROUGHT THE PRESENT PROCEEDING IN THE LOUISIANA
DISTRICT COURT TO RECOVER COMPENSATION FOR HIS INJURY UNDER THE
LOUISIANA WORKMEN'S COMPENSATION LAW.  FN3  PETITIONER FILED EXCEPTIONS
TO RESPONDENT'S PETITION ON THE GROUND THAT THE RECOVERY SOUGHT WAS
BARRED AS RES JUDICATA BY THE TEXAS AWARD WHICH, BY VIRTUE OF THE
CONSTITUTIONAL COMMAND, WAS ENTITLED IN THE LOUISIANA COURTS TO FULL
FAITH AND CREDIT.  THE DISTRICT COURT OVERRULED THE EXCEPTIONS AND GAVE
JUDGMENT FOR THE AMOUNT OF THE COMPENSATION FIXED BY THE LOUISIANA
STATUTE, AFTER DEDUCTING THE AMOUNT OF THE TEXAS PAYMENTS.  THE
LOUISIANA COURT OF APPEAL AFFIRMED, 10 SO.2D 109, AND THE SUPREME COURT
OF LOUISIANA REFUSED WRITS OF CERTIORARI AND REVIEW FOR THE REASON THAT
IT FOUND "NO ERROR OF LAW IN THE JUDGMENT COMPLAINED OF."  WE GRANTED
CERTIORARI, 319 U.S. 734, BECAUSE OF THE IMPORTANCE OF THE
CONSTITUTIONAL QUESTION PRESENTED AND TO RESOLVE AN APPARENT CONFLICT
OF THE DECISION BELOW WITH OUR DECISIONS IN CHICAGO, R.I. & P. RY. CO.
V. SCHENDEL, 270 U.S. 611, AND WILLIAMS V. NORTH CAROLINA, 317 U.S.
287; CF. ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N, 294 U.S.
532; PACIFIC EMPLOYERS INS. CO. V. INDUSTRIAL ACCIDENT COMM'N, 306 U.S.
493. 

IN TEXAS A COMPENSATION AWARD AGAINST THE EMPLOYER'S INSURER (WITH
EXCEPTIONS NOT HERE APPLICABLE, CF. REVISED CIVIL STATUTES, ART. 8306,
SEC. 5) IS EXPLICITLY MADE BY STATUTE IN LIEU OF ANY OTHER RECOVERY FOR
INJURY TO THE EMPLOYEE, SINCE ART. 8306, SEC. 3 PROVIDES THAT EMPLOYEES
SUBJECT TO THE ACT "SHALL HAVE NO RIGHT OF ACTION AGAINST THEIR
EMPLOYER OR AGAINST ANY AGENT, SERVANT OR EMPLOYE OF SAID EMPLOYER FOR
DAMAGES FOR PERSONAL INJURIES  ...  BUT SUCH EMPLOYES ...  SHALL LOOK
FOR COMPENSATION SOLELY TO THE ASSOCIATION (THE INSURER)."  A
COMPENSATION AWARD WHICH HAS BECOME FINAL "IS ENTITLED TO THE SAME
FAITH AND CREDIT AS A JUDGMENT OF A COURT."  SEE OCEAN ACCIDENT &
GUARANTEE CORP. V. PRUITT, 58 S.W.2D 41, 44-45(TEX.  COMM.  APP.),
HOLDING THAT AN AWARD IS RES JUDICATA, NOT ONLY AS TO ALL MATTERS
LITIGATED, BUT AS TO ALL MATTERS WHICH COULD HAVE BEEN LITIGATED IN THE
PROCEEDING WITH RESPECT TO THE RIGHT TO COMPENSATION FOR THE INJURY. 
TO THE SAME EFFECT ARE TRADERS & GENERAL INS. CO. V. BAKER, 111 S.W.2D
837.  839, 840(TEX.  COMM. APP.); MIDDLEBROOK V. TEXAS INDEMNITY INS.
CO., 112 S.W.2D 311, 315(TEX.  CIV.  APP.); CF. FEDERAL SURETY CO. V.
COOK, 119 TEX. 89, 24 S.W.2D 394.  THE TEXAS COURT OF CIVIL APPEALS
FORMERLY HELD THAT A TEXAS EMPLOYEE COULD RECOVER COMPENSATION OF HIS
TEXAS EMPLOYER FOR AN INJURY IN ANOTHER STATE FOR WHICH HE HAD ALREADY
RECOVERED COMPENSATION IN THAT STATE.  TEXAS EMPLOYERS' INS. ASSN. V.
PRICE, 300 S.W. 667.  BUT IN DECLINING TO REVIEW THE CASE, THE TEXAS
SUPREME COURT EXPRESSLY POINTED OUT THAT THIS RULING HAD NOT BEEN
CHALLENGED, AND THAT IT WAS LEAVING THE QUESTION UNDECIDED, 300 S.W.
672.  THE RIGHT OF A SECOND RECOVERY IN SUCH CIRCUMSTANCES WAS PROMPTLY
ABOLISHED BY STATUTE.  REVISED CIVIL STATUTES, ART. 8306, SEC. 19.  AND
UNDER THIS STATUTE A COMPENSATION AWARD MAY NOT BE HAD IN TEXAS IF THE
EMPLOYEE HAS CLAIMED AND RECEIVED COMPENSATION FOR HIS INJURY UNDER THE
LAWS OF ANOTHER STATE.  TRAVELERS INSURANCE CO. V. CASON, 132 TEX. 393,
396, 124 S.W.2D 321. 

THE LOUISIANA COURT OF APPEAL RECOGNIZED THAT TEXAS HAD JURISDICTION
TO AWARD COMPENSATION TO RESPONDENT FOR THE INJURY RECEIVED WHILE
WORKING FOR PETITIONER WITHIN THE STATE, AND THAT THE AWARD HAS THE
SAME FORCE AND EFFECT IN TEXAS AS A JUDGMENT RENDERED BY A COURT OF
COMPETENT JURISDICTION IN THAT STATE.  BUT IT THOUGHT THAT FULL FAITH
AND CREDIT DID NOT REQUIRE THE LOUISIANA COURTS TO GIVE EFFECT TO THE
JUDGMENT AS RES JUDICATA BECAUSE LOUISIANA, DESPITE THE COMMAND OF THE
FULL FAITH AND CREDIT CLAUSE, WAS ENTITLED TO GIVE EFFECT TO ITS OWN
STATUTE PRESCRIBING COMPENSATION FOR RESIDENT EMPLOYEES OF A RESIDENT
EMPLOYER EVEN THOUGH THE INJURY OCCURRED OUTSIDE THE STATE. 

IT DOES NOT APPEAR, NOR IS IT CONTENDED, THAT LOUISIANA MORE THAN
TEXAS ALLOWS IN ITS OWN COURTS A SECOND RECOVERY OF COMPENSATION FOR A
SINGLE INJURY.  THE CONTENTION IS THAT SINCE LOUISIANA IS BETTER
SATISFIED WITH THE MEASURE OF RECOVERY ALLOWED BY ITS OWN LAWS, IT MAY
DENY FULL FAITH AND CREDIT TO THE TEXAS AWARD, WHICH RESPONDENT HAS
PROCURED BY HIS ELECTION TO PURSUE HIS REMEDY IN THAT STATE.  IN THUS
REFUSING, ON THE BASIS OF STATE LAW AND POLICY, TO GIVE EFFECT TO THE
TEXAS AWARD AS A FINAL ADJUDICATION OF RESPONDENT'S CLAIM FOR
COMPENSATION FOR HIS INJURY SUFFERED IN TEXAS, THE LOUISIANA COURT
IGNORED THE DISTINCTION, LONG RECOGNIZED AND APPLIED BY THIS COURT, AND
RECENTLY EMPHASIZED IN WILLIAMS V. NORTH CAROLINA, SUPRA, 294-296,
BETWEEN THE FAITH AND CREDIT REQUIRED TO BE GIVEN TO JUDGMENTS AND THAT
TO WHICH LOCAL COMMON AND STATUTORY LAW IS ENTITLED UNDER HTE
CONSTITUTION AND LAWS OF THE UNITED STATES. 

IN THE CASE OF LOCAL LAW, SINCE EACH OF THE STATES OF THE UNION HAS
CONSTITUTIONAL AUTHORITY TO MAKE ITS OWN LAW WITH RESPECT TO PERSONS
AND EVENTS WITHIN ITS BORDERS, THE FULL FAITH AND CREDIT CLAUSE DOES
NOT ORDINARILY REQUIRE IT TO SUBSTITUTE FOR ITS OWN LAW THE CONFLICTING
LAW OF ANOTHER STATE, EVEN THOUGH THAT LAW IS OF CONTROLLING FORCE IN
THE COURTS OF THAT STATE WITH RESPECT TO THE SAME PERSONS AND EVENTS. 
PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S. 201, 209-211 AND CASES CITED;
KLAXON CO. V. STENTOR CO., 313 U.S. 487, 496-498.  IT WAS FOR THIS
REASON THAT WE HELD THAT THE STATE OF THE EMPLOYER AND EMPLOYEE IS FREE
TO APPLY ITS OWN COMPENSATION LAW TO THE INJURY OF THE EMPLOYEE RATHER
THAN THE LAW OF ANOTHER STATE WHERE THE INJURY OCCURRED.  ALASKA
PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N, SUPRA, 544-550.  AND FOR
LIKE REASONS WE HELD ALSO THAT THE STATE OF THE PLACE OF INJURY IS FREE
TO APPLY ITS OWN LAW TO THE EXCLUSION OF THE LAW OF THE STATE OF THE
EMPLOYER AND EMPLOYEE.  PACIFIC EMPLOYERS INS. CO. V. INDUSTRIAL
ACCIDENT COMM'N, SUPRA, 502-505. 

BUT IT DOES NOT FOLLOW THAT THE EMPLOYEE WHO HAS SOUGHT AND RECOVERED
AN AWARD OF COMPENSATION IN EITHER STATE MAY THEN HAVE RECOURSE TO THE
LAWS AND COURTS OF THE OTHER TO RECOVER A SECOND OR ADDITIONAL AWARD
FOR THE SAME INJURY.  WHERE A COURT MUST MAKE CHOICE OF ONE OF TWO
CONFLICTING STATUTES OF DIFFERENT STATES AND APPLY IT TO A CAUSE OF
ACTION WHICH HAS NOT BEEN PREVIOUSLY LITIGATED, THERE CAN BE NO PLEA OF
RES JUDICATA.  BUT WHEN THE EMPLOYEE WHO HAS RECOVERED COMPENSATION FOR
HIS INJURY IN ONE STATE SEEKS A SECOND RECOVERY IN ANOTHER HE MAY BE
MET BY THE PLEA THAT FULL FAITH AND CREDIT REQUIRES THAT HIS DEMAND,
WHICH HAS BECOME RES JUDICATA IN ONE STATE, MUST BE RECOGNIZED AS SUCH
IN EVERY OTHER. 

THE FULL FAITH AND CREDIT CLAUSE AND THE ACT OF CONGRESS IMPLEMENTING
IT HAVE, FOR MOST PURPOSES, PLACED A JUDGMENT ON A DIFFERENT FOOTING
FROM A STATUTE OF ONE STATE, JUDICIAL RECOGNITION OF WHICH IS SOUGHT IN
ANOTHER.  ARTICLE IV, SEC. 1, OF THE CONSTITUTION COMMANDS THAT "FULL
FAITH AND CREDIT SHALL BE GIVEN IN EACH STATE TO THE PUBLIC ACTS,
RECORDS, AND JUDICIAL PROCEEDINGS OF EVERY OTHER STATE," AND PROVIDES
THAT "CONGRESS MAY BY GENERAL LAWS PRESCRIBE THE MANNER IN WHICH SUCH
ACTS, RECORDS, AND PROCEEDINGS SHALL BE PROVED, AND THE EFFECT
THEREOF."  AND CONGRESS HAS PROVIDED THAT JUDGMENTS "SHALL HAVE SUCH
FAITH AND CREDIT GIVEN TO THEM IN EVERY COURT WITHIN THE UNITED STATES
AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE STATE FROM WHICH THEY
ARE TAKEN."  ACT OF MAY 26, 1790, C. 11, 1 STAT. 122, AS AMENDED, 28
U.S.C. SEC. 687. 

FROM THE BEGINNING THIS COURT HAS HELD THAT THESE PROVISIONS HAVE
MADE THAT WHICH HAS BEEN ADJUDICATED IN ONE STATE RES JUDICATA TO THE
SAME EXTENT IN EVERY OTHER.  HAMPTON V. MCCONNELL, 3 WHEAT.  234, 235;
CHRISTMAS V. RUSSELL, 5 WALL.  290; FAUNTLEROY V. LUM, 210 U.S. 230;
KENNEY V. SUPREME LODGE, 252 U.S. 411; MILWAUKEE COUNTY V. WHITE CO.,
296 U.S. 268; DAVIS V. DAVIS, 305 U.S. 32, 40; TITUS V. WALLICK, 306
U.S. 282, 291-292; WILLIAMS V. NORTH CAROLINA, SUPRA.  EVEN THOUGH WE
ASSUME FOR PRESENT PURPOSES THAT THE COMMAND OF THE CONSTITUTION AND
THE STATUTE IS NOT ALL-EMBRACING, AND THAT THERE MAY BE EXCEPTIONAL
CASES IN WHICH THE JUDGMENT OF ONE STATE MAY NOT OVERRIDE THE LAWS AND
POLICY OF ANOTHER,  FN4  THIS COURT IS THE FINAL ARBITER OF THE EXTENT
OF THE EXCEPTIONS.  ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N,
SUPRA, 547; TITUS V. WALLICK, SUPRA, 291.  AND WE POINTED OUT IN
WILLIAMS V. NORTH CAROLINA, SUPRA, 294-295, THAT "THE ACTUAL EXCEPTIONS
HAVE BEEN FEW AND FAR BETWEEN.  ...  " 

WE ARE AWARE OF NO SUCH EXCEPTION IN THE CASE OF A MONEY JUDGMENT
RENDERED IN A CIVIL SUIT.  NOR ARE WE AWARE OF ANY CONSIDERATIONS OF
LOCAL POLICY OR LAW WHICH COULD RIGHTLY BE DEEMED TO IMPAIR THE FORCE
AND EFFECT WHICH THE FULL FAITH AND CREDIT CLAUSE AND THE ACT OF
CONGRESS REQUIRE TO BE GIVEN TO SUCH A JUDGMENT OUTSIDE THE STATE OF
ITS RENDITION.  MILWAUKEE COUNTY V. WHITE CO., SUPRA, 277, 278. 

THE CONSTITUTIONAL COMMAND REQUIRES A STATE TO ENFORCE A JUDGMENT OF
A SISTER STATE FOR ITS TAXES, MILWAUKEE COUNTY V. WHITE CO., SUPRA, OR
FOR A GAMBLING DEBT, FAUNTLEROY V. LUM, SUPRA, OR FOR DAMAGES FOR
WRONGFUL DEATH, KENNEY V. SUPREME LODGE, SUPRA, ALTHOUGH THE SUIT IN
WHICH THE JUDGMENT WAS OBTAINED COULD NOT HAVE BEEN MAINTAINED UNDER
THE LAWS AND POLICY OF THE FORUM TO WHICH THE JUDGMENT IS BROUGHT.  IT
COMPELS ENFORCEMENT OF A JUDGMENT IN THAT FORUM, EVEN THOUGH A SUIT
UPON THE ORIGINAL CAUSE OF ACTION WAS BARRED THERE BY LIMITATIONS
BEFORE THE JUDGMENT WAS PROCURED, CHRISTMAS V. RUSSELL, SUPRA; ROCHE V.
MCDONALD, 275 U.S. 449.  IT DEMANDS RECOGNITION OF IT EVEN THOUGH THE
STATUTE ON WHICH THE JUDGMENT WAS FOUNDED NEED NOT BE APPLIED IN THE
STATE OF THE FORUM BECAUSE IN CONFLICT WITH THE LAWS AND POLICY OF THAT
STATE.  KENNEY V. SUPREME LODGE, SUPRA; TITUS V. WALLICK, SUPRA;
WILLIAMS V. NORTH CAROLINA, SUPRA. 

THESE CONSEQUENCES FLOW FROM THE CLEAR PURPOSE OF THE FULL FAITH AND
CREDIT CLAUSE TO ESTABLISH THROUGHOUT THE FEDERAL SYSTEM THE SALUTARY
PRINCIPLE OF THE COMMON LAW THAT A LITIGATION ONCE PURSUED TO JUDGMENT
SHALL BE AS CONCLUSIVE OF THE RIGHTS OF THE PARTIES IN EVERY OTHER
COURT AS IN THAT WHERE THE JUDGMENT WAS RENDERED, SO THAT A CAUSE OF
ACTION MERGED IN A JUDGMENT IN ONE STATE IS LIKEWISE MERGED IN EVERY
OTHER.  THE FULL FAITH AND CREDIT CLAUSE LIKE THE COMMERCE CLAUSE THUS
BECAME A NATIONALLY UNIFYING FORCE.  IT ALTERED THE STATUS OF THE
SEVERAL STATES AS INDEPENDENT FOREIGN SOVEREIGNTIES, EACH FREE TO
IGNORE RIGHTS AND OBLIGATIONS CREATED UNDER THE LAWS OR ESTABLISHED BY
THE JUDICIAL PROCEEDINGS OF THE OTHERS, BY MAKING EACH AN INTEGRAL PART
OF A SINGLE NATION, IN WHICH RIGHTS JUDICIALLY ESTABLISHED IN ANY PART
ARE GIVEN NATION-WIDE APPLICATION.  MILWAUKEE COUNTY V. WHITE CO.,
SUPRA, 276, 277; WILLIAMS V. NORTH CAROLINA, SUPRA, 295.  BECAUSE THERE
IS A FULL FAITH AND CREDIT CLAUSE A DEFENDANT MAY NOT A SECOND TIME
CHALLENGE THE VALIDITY OF THE PLAINTIFF'S RIGHT WHICH HAS RIPENED INTO
A JUDGMENT AND A PLAINTIFF MAY NOT FOR HIS SINGLE CAUSE OF ACTION
SECURE A SECOND OR A GREATER RECOVERY. 

HERE BOTH TEXAS AND LOUISIANA HAVE UNDERTAKEN TO ADJUDICATE THE
RIGHTS OF THE SAME PARTIES ARISING FROM A SINGLE INJURY SUSTAINED IN
THE COURSE OF EMPLOYMENT UNDER THE SAME CONTRACT.  EACH STATE HAS
AWARDED TO RESPONDENT COMPENSATION FOR THAT INJURY.  BUT WHETHER THE
TEXAS AWARD PURPORTED ALSO TO ADJUDICATE THE RIGHTS AND DUTIES OF THE
PARTIES UNDER THE LOUISIANA LAW OR TO CONTROL PERSONS AND COURTS IN
LOUISIANA IS IRRELEVANT TO OUR PRESENT INQUIRY.  FOR TEXAS IS WITHOUT
POWER TO GIVE EXTRATERRITORIAL EFFECT TO ITS LAWS.  SEE NEW YORK LIFE
INSURANCE CO. V. HEAD, 234 U.S. 149; HOME INSURANCE CO. V. DICK, 281
U.S. 397.  THE SIGNIFICANT QUESTION IN THIS CASE IS WHETHER THE FULL
FAITH AND CREDIT CLAUSE HAS DEPRIVED LOUISIANA OF THE POWER TO DENY
THAT THE TEXAS AWARD HAS THE SAME BINDING EFFECT ON THE PARTIES IN
LOUISIANA AS IT HAS IN TEXAS.    IT IS NOT, AS THE STATE COURT THOUGHT,
A SUFFICIENT ANSWER TO THE BAR OF THE TEXAS AWARD TO ASSERT THAT
LOUISIANA HAS A RECOGNIZED INTEREST IN AWARDING COMPENSATION TO
LOUISIANA EMPLOYEES WHO ARE INJURED OUT OF THE STATE, SEE ALASKA
PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N, SUPRA, FOR TEXAS, THE
STATE IN WHICH THE INJURY OCCURRED, HAS A LIKE INTEREST IN MAKING AN
AWARD, SEE PACIFIC EMPLOYERS INS. CO. V. INDUSTRIAL ACCIDENT COMM'N,
SUPRA.  AND IN EACH OF THE CASES WE HAVE CITED, THE STATE TO WHICH THE
JUDGMENT WAS BROUGHT HAD AN INTEREST IN THE SUBJECT MATTER OF THE SUIT
AND A PUBLIC POLICY CONTRARY TO THAT OF THE STATE IN WHICH THE JUDGMENT
WAS OBTAINED.  NO CONVINCING REASON IS ADVANCED FOR SAYING THAT
LOUISIANA HAS A GREATER INTEREST IN AWARDING COMPENSATION FOR AN INJURY
SUFFERED IN AN INDUSTRIAL ACCIDENT, THAN NORTH CAROLINA HAD IN
DETERMINING THE MARITAL STATUS OF ITS DOMICILIARY AGAINST WHOM A
DIVORCE DECREE HAD BEEN RENDERED IN ANOTHER STATE, WILLIAMS V. NORTH
CAROLINA, SUPRA, OR MISSISSIPPI IN STAMPING OUT GAMBLING WITHIN ITS
BORDERS, FAUNTLEROY V. LUM, SUPRA, OR SOUTH CAROLINA IN REQUIRING A
PARENT TO SUPPORT HIS CHILD WHO WAS DOMICILED WITHIN THAT STATE,
YARBOROUGH V. YARBOROUGH, 290 U.S. 202. 

IN EACH OF THESE CASES THE WORDS AND PURPOSE OF THE FULL FAITH AND
CREDIT CLAUSE WERE THOUGHT TO DEMAND THAT THE INTEREST OF THE STATE IN
WHICH THE JUDGMENT WAS OBTAINED AND WAS RES JUDICATA, SHOULD OVERRIDE
THE LAWS AND POLICY OF THE FORUM TO WHICH THE JUDGMENT WAS TAKEN.  AND
WE CAN PERCEIVE NO TENABLE GROUND FOR SAYING THAT A COMPENSATION AWARD
NEED NOT BE GIVEN THE SAME EFFECT AS RES JUDICATA IN ANOTHER STATE AS
IT HAS IN THE STATE WHERE RENDERED.  FN5  SUCH WAS THE DECISION OF THIS
COURT IN CHICAGO, R.I. & P. RY. CO. V. SCHENDEL, SUPRA, IN WHICH
RECOVERY OF AN AWARD OF COMPENSATION UNDER THE IOWA WORKMEN'S
COMPENSATION ACT WAS HELD TO BAR RECOVERY IN A SUIT AGAINST THE
EMPLOYER IN MINNESOTA TO RECOVER FOR THE SAME INJURY UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  BOTH STATES HAD, AS IN THIS CASE, ALLOWED
RECOVERY, AS THEY WERE FREE TO DO BUT FOR THE FULL FAITH AND CREDIT
CLAUSE.  THIS COURT HELD THAT THE EMPLOYEE, HAVING HAD HIS REMEDY BY
THE JUDGMENT IN IOWA, WAS PRECLUDED BY THE FULL FAITH AND CREDIT CLAUSE
FROM PURSUING A REMEDY FOR HIS INJURY IN ANOTHER STATE.  THE REMEDIES
AFFORDED TO RESPONDENT BY THE TEXAS AND LOUISIANA WORKMEN'S
COMPENSATION LAWS ARE LIKEWISE RENDERED MUTUALLY EXCLUSIVE BY THE TEXAS
JUDGMENT AND THE FULL FAITH AND CREDIT CLAUSE.  THE TEXAS AWARD, BEING
A BAR TO ANY FURTHER RECOVERY OF COMPENSATION FOR RESPONDENT'S INJURY,
IS, BY VIRTUE OF THE FULL FAITH AND CREDIT CLAUSE, EXCLUSIVE OF HIS
REMEDY UNDER THE LOUISIANA ACT. 

IT LENDS NO SUPPORT TO THE DECISION OF THE LOUISIANA COURT IN THIS
CASE TO SAY THAT LOUISIANA HAS CHOSEN TO BE MORE GENEROUS WITH AN
EMPLOYEE THAN TEXAS HAS.  INDEED NO CONSTITUTIONAL QUESTION WOULD BE
PRESENTED IF LOUISIANA CHOSE TO BE GENEROUS TO THE EMPLOYEE OUT OF THE
GENERAL FUNDS IN ITS TREASURY.  BUT HERE IT IS PETITIONER WHO IS
REQUIRED TO PROVIDE FURTHER PAYMENTS TO RESPONDENT, CONTRARY TO THE
TERMS OF THE TEXAS AWARD, WHICH, IF THE FULL FAITH AND CREDIT CLAUSE IS
TO BE GIVEN ANY EFFECT, WAS A CONCLUSIVE DETERMINATION BETWEEN THE
PARTIES THAT PETITIONER SHOULD BE LIABLE FOR NO MORE THAN THE AMOUNT OF
THE TEXAS AWARD.  FOR THIS REASON IT IS NOT ENOUGH TO SAY THAT A
PRACTICAL RECONCILIATION OF THE INTERESTS OF TEXAS AND LOUISIANA HAS
BEEN EFFECTED BY THE LOUISIANA COURT.  THERE HAS BEEN NO RECONCILIATION
OF THE LIABILITY ESTABLISHED BY THE LOUISIANA JUDGMENT WITH THE RIGHTS
CONFERRED ON PETITIONER BY THE TEXAS AWARD AND THE FULL FAITH AND
CREDIT CLAUSE. 

HERE THE FINDING OF THE LOUISIANA COURT THAT THE TEXAS AWARD HAD THE
FORCE AND EFFECT OF A JUDGMENT OF A COURT OF THAT STATE AND IS RES
JUDICATA THERE, IS IN CONFORMITY TO THE DETERMINATIONS OF THE COURTS OF
TEXAS AND HAS NOT BEEN CHALLENGED BY THE PARTIES.  WE HAVE NO OCCASION
TO CONSIDER WHAT EFFECT WOULD BE REQUIRED TO BE GIVEN TO THE TEXAS
AWARD IF THE TEXAS COURTS HELD THAT AN AWARD OF COMPENSATION IN ANOTHER
STATE WOULD NOT BAR AN AWARD IN TEXAS, FOR AS WE HAVE SEEN, TEXAS DOES
NOT ALLOW SUCH A SECOND RECOVERY.  AND IF THE AWARD OF COMPENSATION IN
TEXAS WERE NOT RES JUDICATA THERE, FULL FAITH AND CREDIT WOULD, OF
COURSE, BE NO BAR TO THE RECOVERY OF AN AWARD IN ANOTHER STATE. 
CHICAGO, R.I. & P. RY. CO. V. ELDER, 270 U.S. 611, 622-623. 

WHETHER THE PROCEEDING BEFORE THE STATE INDUSTRIAL ACCIDENT BOARD IN
TEXAS BE REGARDED AS A "JUDICIAL PROCEEDING," OR ITS AWARD IS A
"RECORD" WITHIN THE MEANING OF THE FULL FAITH AND CREDIT CLAUSE AND THE
ACT OF CONGRESS, THE RESULT IS THE SAME.  FOR JUDICIAL PROCEEDINGS AND
RECORDS OF THE STATE ARE BOTH REQUIRED TO HAVE "SUCH FAITH AND CREDIT
GIVEN TO THEM IN EVERY COURT WITHIN THE UNITED STATES AS THEY HAVE BY
LAW OR USAGE IN THE COURTS OF THE STATE FROM WHICH THEY ARE TAKEN." 

THE DECISION OF THE STATE COURT IS NOT SUPPORTED BY THE SUGGESTION
THAT THE TEXAS AWARD IS NOT RES JUDICATA IN LOUISIANA BECAUSE
RESPONDENT'S SUIT THERE WAS ON A DIFFERENT CAUSE OF ACTION.  WHEN A
STATE COURT REFUSES CREDIT TO THE JUDGMENT OF A SISTER STATE BECAUSE OF
ITS OPINION OF THE NATURE OF THE CAUSE OF ACTION OR THE JUDGMENT IN
WHICH IT IS MERGED, AN ASSERTED FEDERAL RIGHT IS DENIED AND THE
SUFFICIENCY OF THE GROUNDS OF DENIAL ARE FOR THIS COURT TO DECIDE. 
TITUS V. WALLICK, SUPRA, 291 AND CASES CITED; AND SEE ADAM V. SAENGER,
303 U.S. 59, 64 AND CASES CITED.  RESPONDENT'S INJURY IN TEXAS DID NOT
GIVE RISE TO TWO CAUSES OF ACTION MERELY BECAUSE RECOVERY IN EACH STATE
IS UNDER A DIFFERENT STATUTE, OR BECAUSE EACH AFFORDS A DIFFERENT
MEASURE OF RECOVERY.  FN6  CHICAGO, R.I. & P. RY. CO. V. SCHENDEL,
SUPRA; BALTIMORE STEAMSHIP CO. V. PHILLIPS, 274 U.S. 316; SEE WABASH R.
CO. V. HAYES, 234 U.S. 86, 90.  THE GROUNDS OF RECOVERY ARE THE SAME IN
ONE STATE AS IN THE OTHER - THE INJURY TO THE EMPLOYEE IN THE COURSE OF
HIS EMPLOYMENT.  THE WHOLE TENDENCY OF OUR DECISIONS UNDER THE FULL
FAITH AND CREDIT CLAUSE IS TO REQUIRE A PLAINTIFF TO TRY HIS WHOLE
CAUSE OF ACTION AND HIS WHOLE CASE AT ONE TIME.  HE CANNOT SPLIT UP HIS
CLAIM AND "A FORTIORI HE CANNOT DIVIDE THE GROUNDS OF RECOVERY." 
UNITED STATES V. CALIFORNIA & OREGON LAND CO., 192 U.S. 355, 358. 
RESPONDENT WAS FREE TO PURSUE HIS REMEDY IN EITHER STATE BUT, HAVING
CHOSEN TO SEEK IT IN TEXAS, WHERE THE AWARD WAS RES JUDICATA, THE FULL
FAITH AND CREDIT CLAUSE PRECLUDES HIM FROM AGAIN SEEKING A REMEDY IN
LOUISIANA UPON THE SAME GROUNDS.  THE FACT THAT A SUITOR HAS BEEN
DENIED A REMEDY BY ONE STATE BECAUSE IT DOES NOT AFFORD A REMEDY FOR
THE PARTICULAR WRONG ALLEGED, MAY NOT BAR RECOVERY IN ANOTHER STATE
WHICH DOES PROVIDE A REMEDY.  SEE TROXELL V. DELAWARE, L. & W.R. CO.,
227 U.S. 434; CF. ASH SHEEP CO. V. UNITED STATES, 252 U.S. 159, 170. 
BUT AS WE DECIDED IN THE SCHENDEL CASE IT IS A VERY DIFFERENT MATTER TO
SAY THAT RECOVERY CAN BE HAD IN EVERY STATE WHICH AFFORDS A REMEDY. 

THE SUGGESTION THAT THERE IS A SECOND AND DIFFERENT CAUSE OF ACTION
IN LOUISIANA, MERELY BECAUSE LOUISIANA LAW AUTHORIZES COMPENSATION, AND
IN A DIFFERENT MEASURE THAN DOES TEXAS, OR BECAUSE THE JURISDICTION OF
THE COURT OF ONE STATE DEPENDS ON THE PLACE OF THE INJURY AND THAT OF
THE OTHER ON THE PLACE OF THE EMPLOYMENT CONTRACT, WOULD IF ACCEPTED
PROVE TOO MUCH.  APART FROM THE DEMANDS OF FULL FAITH AND CREDIT,
RECOVERY IN A TRANSITORY ACTION FOR INJURY TO PERSON OR PROPERTY,
WHETHER IN TORT OR FOR COMPENSATION, CAN OF COURSE ONLY BE HAD IN
CONFORMITY TO THE LAW OF THE STATE WHERE THE ACTION IS MAINTAINED. 
EVEN WHERE THE STATE OF THE FORUM ADOPTS AND APPLIES AS ITS OWN THE LAW
OF THE STATE WHERE THE INJURY WAS INFLICTED, THE EXTENT TO WHICH IT
SHALL APPLY IN ITS OWN COURTS A RULE OF LAW OF ANOTHER STATE IS ITSELF
A QUESTION OF LOCAL LAW OF THE FORUM.  FINNEY V. GUY, 189 U.S. 335;
KLAXON CO. V. STENTOR CO., SUPRA, 496, 497; CF. WORCESTER COUNTY TRUST
CO. V. RILEY, 302 U.S. 292, 299.  AND THE LAW OF A STATE IS EMBODIED AS
WELL IN ITS COMMON LAW RULES AS IN ITS STATUTES.  ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, 78, 79; SEE MR. JUSTICE HOLMES, DISSENTING IN
BLACK & WHITE TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., 276 U.S. 518,
532-536. 

IF AN EMPLOYEE EMPLOYED IN ONE STATE BUT INJURED IN ANOTHER HAS A
DIFFERENT CAUSE OF ACTION FOR COMPENSATION IN EACH STATE BECAUSE EACH
HAS ITS OWN COMPENSATION STATUTE, IT COULD AS WELL BE ARGUED IN ANY
CASE WHERE PLAINTIFF HAS RECOVERED A JUDGMENT IN ONE STATE, AND SEEKS A
SECOND RECOVERY IN A SECOND STATE FOR THE SAME INJURY, THAT HE IS SUING
UPON A SECOND AND DIFFERENT CAUSE OF ACTION.  BUT IT HAS NEVER BEEN
THOUGHT THAT AN ACTIONABLE PERSONAL INJURY GIVES RISE TO AS MANY CAUSES
OF ACTION AS THERE ARE STATES WHOSE LAWS WILL PERMIT A SUIT TO RECOVER
FOR THE INJURY OR THAT DESPITE THE FULL FAITH AND CREDIT CLAUSE THE
INJURED PERSON, MORE THAN ONE ENTITLED TO RECOVER FOR BREACH OF
CONTRACT, COULD GO FROM STATE TO STATE TO RECOVER IN EACH DAMAGES OR
COMPENSATION FOR HIS INJURY.  A JUDGMENT IN TORT OR IN CONTRACT IS NOT
IMMUNE FROM THE REQUIREMENT OF FULL FAITH AND CREDIT BECAUSE THE
SUCCESSFUL PLAINTIFF COULD HAVE MAINTAINED HIS SUIT UNDER THE LAW OF
OTHER STATES AND HAVE SECURED A LARGER RECOVERY IN SOME, OR BECAUSE THE
JURISDICTION OF THE COURT IN ONE STATE TO HEAR THE CAUSE MAY DEPEND
UPON SOME FACTS DIFFERENT FROM THE FACTS NECESSARY TO SUSTAIN THE
JURISDICTION IN ANOTHER.  CF. BALTIMORE STEAMSHIP CO. V. PHILLIPS,
SUPRA; ELDRED V. BANK, 17 WALL.  545; WABASH R. CO. V. HAYES, SUPRA;
KENNEY V. SUPREME LODGE, SUPRA.  AND WE CANNOT SAY THAT A WORKMEN'S
COMPENSATION AWARD FOR INJURY STANDS ON ANY DIFFERENT FOOTING.  IN FACT
CHICAGO, R.I. & P. RY. CO. V. SCHENDEL, SUPRA, HELD THAT IT DID NOT AND
WE SEE NO REASON TO DEPART FROM ITS RULING.  REVERSED. 

FN1  AN EMPLOYER BECOMES SUBJECT TO THE ACT BY BECOMING A SUBSCRIBER
UNDER IT BY GIVING NOTICE TO THE INDUSTRIAL ACCIDENT BOARD (TEXAS REV.
CIV. STAT., TITLE 130, ART. 8308, SEC. 18 A) AND PROVIDING INSURANCE
REQUIRED BY THE ACT (ART. 8308).  IF AN EMPLOYEE OF A SUBSCRIBER
SUSTAINS AN INJURY IN THE COURSE OF HIS EMPLOYMENT, HE IS ENTITLED TO
COMPENSATION WITHOUT REGARD TO THE FAULT OF THE EMPLOYER (ART. 8306,
SEC. 3 B), UNLESS HE HAS GIVEN TIMELY NOTICE OF HIS INTENTION NOT TO
WAIVE HIS RIGHTS OF ACTION AT COMMON LAW AND UNDER OTHER STATUTES OF
TEXAS.  IN THAT EVENT HE MAY SUE FOR THE REMEDIES WHICH THEY AFFORD
(ART. 8306, SEC. 3 A).  EMPLOYEES OF NON-SUBSCRIBERS ARE NOT ENTITLED
TO WORKMEN'S COMPENSATION, BUT MAY SUE TO RECOVER FOR INJURIES RECEIVED
IN THE COURSE OF THEIR EMPLOYMENT WITHOUT BEING SUBJECT TO CERTAIN
COMMON LAW DEFENSES (ART. 8306, SECS. 1, 4).  WHEN AN EMPLOYEE IS
ENTITLED TO COMPENSATION, HE HAS NO OTHER RIGHT OF ACTION AGAINST THE
EMPLOYER FOR INJURIES (ART. 8306, SEC. 3). 

THE STATUTE SPECIFIES THE AMOUNTS OF COMPENSATION, INCLUDING
EXPENSES, PAYABLE FOR VARIOUS INJURIES (ART. 8306, SECS. 6-18).  IT
PROVIDES THAT AWARDS ARE TO BE MADE IN THE FIRST INSTANCE BY THE
INDUSTRIAL ACCIDENT BOARD (ART. 8307).  IN ORDER TO OBTAIN A REVIEW OF
AN AWARD, A PARTY MUST WITHIN 20 DAYS GIVE NOTICE THAT HE WILL NOT
ABIDE BY IT AND WITHIN 20 DAYS AFTER GIVING NOTICE, MUST FILE SUIT IN
AN APPROPRIATE COURT (ART. 8307, SEC. 5).  IN SUCH A SUIT THE TRIAL IS
DE NOVO (ID.).  IF NO SUCH NOTICE IS GIVEN, OR NO SUCH SUIT IS FILED
WITHIN THE TIMES PRESCRIBED, THE AWARD BECOMES FINAL (ID.). 

FN2  RESPONDENT FILED WITH THE TEXAS INDUSTRIAL ACCIDENT BOARD A
CLAIM FOR COMPENSATION FOR HIS INJURY UNDER THE TEXAS WORKMEN'S
COMPENSATION LAW, AS IS THE USUAL METHOD OF INSTITUTING A PROCEEDING
BEFORE THE BOARD.  WITHOUT AWAITING AN AWARD ON RESPONDENT'S CLAIM
PETITIONER'S INSURER PAID RESPONDENT COMPENSATION FOR HIS INJURY AT THE
STATUTORY MAXIMUM RATE FOR SEVENTY-THREE WEEKS.  A DISPUTE AS TO THE
PROPER PROGNOSIS OF RESPONDENT'S INJURY, A REQUEST FOR ADVICE MADE BY
RESPONDENT TO THE BOARD, AND A SUSPENSION BY THE INSURER OF FURTHER
COMPENSATION PAYMENTS TO RESPONDENT, ON THE GROUND THAT HIS TOTAL
DISABILITY HAD TERMINATED, ALL PROMPTED THE BOARD TO SET THE CASE FOR A
HEARING ON HIS PENDING CLAIM.  RESPONDENT RECEIVED NOTICE OF THE
HEARING AND WAS REQUESTED TO FURNISH MEDICAL EVIDENCE OF HIS CONTINUED
DISABILITY.  UPON HIS FAILURE TO DO THIS, THE BOARD ENTERED ON DECEMBER
3, 1940, AS THE FULL COMPENSATION FOR HIS INJURY, AN AWARD OF A LUMP
SUM FOR TOTAL DISABILITY FOR 75 WEEKS AND OF WEEKLY PAYMENTS FOR
PARTIAL DISABILITY FOR A FURTHER PERIOD OF 125 WEEKS, AND DIRECTED THAT
PAYMENTS ALREADY MADE BY THE INSURER BE CREDITED UPON THE AWARD. 
RESPONDENT WAS NOTIFIED AS TO THE APPEAL HE WAS REQUIRED TO TAKE IF HE
WAS DISSATISFIED WITH THE AWARD.  NO APPEAL WAS TAKEN, AND THE AWARD
BECAME FINAL.  TEX. REV. CIV. STAT., ART. 8307, SEC. 5.  RESPONDENT HAS
REFUSED PAYMENTS WHICH HAVE BEEN TENDERED TO HIM SUBSEQUENT TO THE
MAKING OF THE TEXAS AWARD.  ON DECEMBER 18, 1940, HE BEGAN THE PRESENT
SUIT IN LOUISIANA. 

FN3  THE STATUTE IS APPLICABLE TO ALL EMPLOYEES IN CERTAIN SPECIFIED
HAZARDOUS OCCUPATIONS (INCLUDING THE WORK PERFORMED BY RESPONDENT), AND
TO EMPLOYEES IN OTHER OCCUPATIONS BY VOLUNTARY CONTRACT BETWEEN THE
EMPLOYER AND THE EMPLOYEE.  LA. GEN. STAT., TITLE 34, CH. 15, SEC.
4391.  SUCH EMPLOYEES AS RECEIVE INJURIES IN THE COURSE OF THEIR
EMPLOYMENT ARE ENTITLED TO COMPENSATION (SEC. 4392) IN SPECIFIED
AMOUNTS (SEC. 4398), UNLESS THE CONTRACT OF EMPLOYMENT PROVIDES
OTHERWISE (SEC. 4393), WHETHER THE INJURY IS OR IS NOT DUE TO THE FAULT
OF THE EMPLOYER (SEC. 4427).  IF THE EMPLOYEE ELECTS TO BE COVERED
UNDER THE ACT, BUT THE EMPLOYER ELECTS NOT TO BE, THEN IN SUITS BY THE
EMPLOYEE TO RECOVER FOR INJURIES RECEIVED IN THE COURSE OF HIS
EMPLOYMENT, CERTAIN COMMON LAW DEFENSES ARE ABOLISHED (SEC. 4394).  THE
COMPENSATION AWARD MAY BE FIXED BY AGREEMENT OF THE PARTIES (SEC.
4407), OR MAY BE OBTAINED BY SUIT IN THE DISTRICT COURT (SEC. 4408),
WITH RIGHT OF APPEAL TO THE APPROPRIATE APPELLATE COURTS (SEC. 4409). 
AND AS IN THE PRESENT CASE, THE STATUTE IS DEEMED UNDER SOME
CIRCUMSTANCES TO BE APPLICABLE TO INJURIES RECEIVED BY THE EMPLOYEE
WITHOUT THE STATE.  HARGIS V. MCWILLIAMS CO., 9 LA. APP. 108, 119 SO.
88; SELSER V. BRAGMANS BLUFF LUMBER CO., 146 SO. 690(LA. APP.).    FN4
SEE, E.G., HUNTINGTON V. ATTRILL, 146 U.S. 657; FALL V. EASTIN, 215
U.S. 1; OLMSTED V. OLMSTED, 216 U.S. 386; CONVERSE V. HAMILTON, 224
U.S. 243; HOOD V. MCGEHEE, 237 U.S. 611; BRODERICK V. ROSNER, 294 U.S.
629, 642; CF. WISCONSIN V. PELICAN INS. CO., 127 U.S. 265, 293 WITH
MILWAUKEE COUNTY V. WHITE CO., SUPRA, 278. 

FN5  BUT CF. AMERICAN LAW INSTITUTE, RESTATEMENT OF CONFLICT OF LAWS
(1934) SEC. 403: 

"AWARD ALREADY HAD UNDER THE WORKMEN'S COMPENSATION ACT OF ANOTHER
STATE WILL NOT BAR A PROCEEDING UNDER AN APPLICABLE ACT, BUT THE AMOUNT
PAID ON A PRIOR AWARD IN ANOTHER STATE WILL BE CREDITED ON THE SECOND
AWARD." 

THIS WOULD SEEM TO BE INTENDED AS NOTHING MORE THAN A STATEMENT OF
LOCAL RULES OF CONFLICT OF LAWS WHEN UNAFFECTED BY THE FULL FAITH AND
CREDIT CLAUSE, SINCE FULL FAITH AND CREDIT, IF IT DOES NOT REQUIRE THAT
A FIRST AWARD BAR A SECOND, WOULD NOT COMPEL CREDITS UPON THE SECOND
AWARD OF PAYMENTS MADE UNDER THE FIRST.  IF MORE WAS INTENDED, THE
STATEMENT IS, AS THE ADVISERS TO THE AMERICAN LAW INSTITUTE STATED,
"SURPRISING."  PROCEEDINGS OF AMERICAN LAW INSTITUTE (1932) VOL. X, P.
76.  IT IS THE MORE SO AS THE STATEMENT WOULD THEN CONFLICT WITH THE
RATIO DECIDENDI OF CHICAGO, R.I. & P. RY. CO. V. SCHENDEL, 270 U.S.
611, WHICH HAD BEEN DECIDED SOME SIX YEARS BEFORE.  EVEN AS A MATTER OF
LOCAL LAW WHILE THE DECISION OF THE STATE COURTS ON THIS POINT ARE IN
CONFLICT, THE FOLLOWING ARE CONTRARY TO THE RULE EXPRESSED IN THE
RESTATEMENT:  HUGHEY V. WARE, 34 N.M. 29, 276 P. 27; TIDWELL V.
CHATTANOOGA BOILER & T. CO., 163 TENN. 420, 648, 43 S.W.2D 221, 45
S.W.2D 528; DEGRAY V. MILLER BROS. CONST. CO., 106 VT. 259.  277-278,
173 A. 556. 

FN6  ANY IMPLICATION TO THE CONTRARY IN TROXELL V. DELAWARE, L. &
W.R. CO., 227 U.S. 434, MUST BE CONSIDERED AS OVERRULED BY WABASH R.
CO. V. HAYES, 234 U.S. 86, 90; CF. BALTIMORE STEAMSHIP CO. V. PHILLIPS,
274 U.S. 316, 323. 

BY MR. JUSTICE JACKSON: 

I CONCUR WITH THE OPINION OF THE CHIEF JUSTICE. 

IF THE COURT WERE TO RECONSIDER WILLIAMS V. NORTH CAROLINA, 317 U.S.
287, IN THE LIGHT OF THE VIEWS EXPRESSED BY MR. JUSTICE BLACK, I SHOULD
ADHERE TO THE VIEWS I EXPRESSED IN DISSENT THERE.  UNTIL WE DO SO, I
CONSIDER MYSELF BOUND BY THAT DECISION.  WHATEVER MIGHT BE THE LAW IF
THAT CASE HAD NEVER BEEN DECIDED, I AM UNABLE TO SEE WHY THE
CONTROLLING PRINCIPLES IT ANNOUNCED UNDER THE FULL FAITH AND CREDIT
CLAUSE TO REVERSE THE NORTH CAROLINA DECISION THEREIN DO NOT REQUIRE
REVERSAL OF THE LOUISIANA DECISION UNDER REVIEW.  I AGREE WITH THE
DISSENT THAT LOUISIANA HAS A LEGITIMATE INTEREST TO PROTECT IN THE
SUBJECT MATTER OF THIS LITIGATION, BUT SO DID NORTH CAROLINA IN THE
WILLIAMS CASE.  I AM UNABLE TO SEE HOW LOUISIANA CAN BE
CONSTITUTIONALLY FREE TO APPLY ITS OWN WORKMEN'S COMPENSATION LAW TO
ITS CITIZENS DESPITE A PREVIOUS ADJUDICATION IN ANOTHER STATE IF NORTH
CAROLINA WAS NOT FREE TO APPLY ITS OWN MATRIMONIAL POLICY TO ITS OWN
CITIZENS AFTER JUDGMENT ON THE SUBJECT IN NEVADA.  IS LOUISIANA'S
SOCIAL INTEREST IN SEEING THAT ITS LABOR CONTRACTS CARRY ADEQUATE
WORKMEN'S COMPENSATION SUPERIOR CONSTITUTIONALLY TO NORTH CAROLINA'S
INTEREST IN SEEING THAT PEOPLE WHO CONTRACT MARRIAGE THERE ARE
PROTECTED IN THE RIGHTS THEY ACQUIRE?  IT IS TRUE THAT SOMEONE MIGHT
HAVE TO TAKE CARE OF THE LOUISIANA CITIZEN WHO IS INJURED BUT
INADEQUATELY COMPENSATED IN TEXAS, AS IT WAS TRUE IN THE WILLIAMS CASE
THAT SOMEONE MIGHT HAVE TO CARE FOR THOSE DEPRIVED OF THEIR MARRIAGE
STATUS BY THE FOREIGN DIVORCE DECREE. 

OVERRULING A PRECEDENT ALWAYS INTRODUCES SOME CONFUSION AND THE
NECESSITY FOR IT MAY BE UNFORTUNATE.  BUT IT IS AS NOTHING TO KEEPING
ON OUR BOOKS UTTERANCES TO WHICH WE OURSELVES WILL GIVE FULL FAITH AND
CREDIT ONLY IF THE OUTCOME PLEASES US.  I SHALL ABIDE BY THE WILLIAMS
CASE UNTIL IT IS TAKEN OFF OUR BOOKS, AND FOR THAT REASON CONCUR IN THE
DECISION HEREIN. 

MR. JUSTICE DOUGLAS, DISSENTING: 

WHILE I HAVE JOINED IN THE OPINION OF MR. JUSTICE BLACK, CERTAIN
OBSERVATIONS IN THE CONCURRING OPINION LEAD ME TO ADD A FEW WORDS. 

I DO NOT AGREE WITH THE VIEW THAT THE FULL FAITH AND CREDIT CLAUSE IS
TO BE ENFORCED "ONLY IF THE OUTCOME PLEASES US."  WE ARE DEALING HERE
WITH HIGHLY CONTROVERSIAL SUBJECTS WHERE HONEST DIFFERENCES OF OPINION
ARE ALMOST CERTAIN TO OCCUR.  EACH CASE INVOLVES A CLASH BETWEEN THE
POLICIES OF TWO SOVEREIGN STATES.  THE QUESTION IS NOT WHICH POLICY WE
PREFER; IT IS WHETHER THE TWO CONFLICTING POLICIES CAN SOMEHOW BE
ACCOMMODATED.  THE COMMAND OF THE FULL FAITH AND CREDIT CLAUSE
FREQUENTLY MAKES A RECONCILIATION OF THE TWO INTERESTS IMPOSSIBLE.  ONE
MUST GIVE WAY IN THE LARGER INTEREST OF THE FEDERAL UNION.  THE
QUESTION IN EACH CASE IS WHETHER AS A PRACTICAL MATTER THERE IS ROOM
FOR ADJUSTMENT, CONSISTENT WITH THE REQUIREMENTS OF FULL FAITH AND
CREDIT.  WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, IS A RECENT
EXAMPLE.  ONE DOMICILED IN NEVADA WAS GRANTED A DIVORCE FROM HIS NORTH
CAROLINA SPOUSE ON NOTICE BY PUBLICATION.  THE QUESTION FOR US WAS
WHETHER THAT DECREE WAS A DEFENSE TO A PROSECUTION FOR BIGAMY IN NORTH
CAROLINA.  SUCH QUESTIONS OF STATUS, I.E., MARITAL CAPACITY, INVOLVE
CONFLICTS BETWEEN THE POLICIES OF TWO STATES WHICH ARE QUITE
IRRECONCILABLE AS COMPARED WITH THE PRESENT SITUATION. 

IF THE CLAIM UNDER THE TEXAS ACT HAD BEEN DENIED BECAUSE OF STATUTORY
DEFENSES ACCORDED THE EMPLOYER, I DO NOT SUPPOSE THAT THE REQUIREMENTS
OF FULL FAITH AND CREDIT WOULD BAR THE SUBSEQUENT CLAIM UNDER A
LOUISIANA STATUTE WHICH DID NOT RECOGNIZE SUCH DEFENSES.  AT LEAST
TROXELL V. DELAWARE, L. & W.R. CO., 227 U.S. 434, WHICH HAS NEVER BEEN
OVERRULED, POINTS TO THAT RESULT FOR IT HELD THAT A DENIAL OF RECOVERY
UNDER A STATE ACT WAS NO BARRIER TO A SUIT UNDER A FEDERAL ACT FOR THE
SAME INJURY.  IF THE FULL FAITH AND CREDIT CLAUSE WOULD NOT PREVENT A
RECOVERY UNDER THE LOUISIANA ACT WHERE AN AWARD UNDER THE TEXAS ACT HAD
BEEN DENIED, I DO NOT SEE HOW LOUISIANA CAN BE PREVENTED FROM GRANTING
A RECOVERY AFTER TEXAS HAS MADE AN AWARD.  THE ACTION OF TEXAS WOULD BE
AS DEFINITE AND FINAL AN ADJUDICATION OF THE RIGHTS AND DUTIES OF THE
PARTIES UNDER THE TEXAS STATUTE IN THE ONE CASE AS IN THE OTHER. 
MOREOVER, THE TWO STATUTES ARE NOT MUTUALLY EXCLUSIVE AS WAS TRUE IN
CHICAGO, R.I. & P. RY. CO. V. SCHENDEL, 270 U.S. 611.  THUS A
DETERMINATION THAT AN EMPLOYER IS UNDER THE TEXAS ACT DOES NOT MEAN
CONVERSELY THAT HE IS EXCLUDED FROM THE COVERAGE OF LOUISIANA'S LAW. 

THE PRINCIPLE OF THE TROXELL CASE SEEMS APPOSITE HERE SINCE THE CLAIM
IN TEXAS WAS ONLY ONE FOR "COMPENSATION UNDER THE EMPLOYERS LIABILITY
ACT" OF THAT STATE.  AND THE TEXAS AWARD PURPORTED TO DO NO MORE THAN
TO ADJUDICATE RIGHTS AND DUTIES UNDER THE TEXAS ACT.  FOR IT PROVIDED
THAT WHEN FULLY PAID IT WOULD DISCHARGE THE INSURER "FROM ALL LIABILITY
BY REASON OF THIS CLAIM FOR COMPENSATION."  IF THE TEXAS AWARD HAD
UNDERTAKEN TO ADJUDICATE THE RIGHTS AND DUTIES OF THE PARTIES UNDER THE
LOUISIANA CONTRACT OF EMPLOYMENT, WHICH WE ARE TOLD CARRIES THE RIGHT
TO COMPENSATION UNDER THE LOUISIANA ACT (10 SO.2D 109, 112), THE RESULT
WOULD BE QUITE DIFFERENT.  THEN THE JUDGMENT, LIKE THE DIVORCE DECREE
IN THE WILLIAMS CASE, WOULD UNDERTAKE TO REGULATE THE RELATIONSHIP OF
THE PARTIES, OR THEIR RIGHTS AND DUTIES WHICH FLOW FROM IT, AS RESPECTS
THEIR UNDERTAKINGS IN ANOTHER STATE.  AND SINCE TEXAS WOULD HAVE HAD
JURISDICTION OVER THE PARTIES ITS DECREE WOULD BE A BAR TO THE PRESENT
ACTION IN LOUISIANA.  BUT THERE IS NOTHING IN THE TEXAS PROCEEDING OR
IN THE TEXAS AWARD TO INDICATE THAT THAT WAS EITHER INTENDED OR DONE. 
THE MOST CHARITABLE CONSTRUCTION IS THAT TEXAS UNDERTOOK TO ADJUST THE
RIGHTS AND DUTIES OF THE PARTIES AND TO REGULATE THEIR RELATIONSHIP
ONLY SO LONG AS THEY REMAINED SUBJECT TO THE JURISDICTION OF TEXAS. 

UNDER THE CIRCUMSTANCES DISCLOSED THE SITUATION IS THUS QUITE
DIFFERENT FROM THE USUAL TRANSITORY ACTION OR FROM A DECREE WHICH
UNDERTAKES TO SEVER MARITAL BONDS BETWEEN ONE DOMICILED IN A STATE AND
A NON-RESIDENT.  BUT EVEN IF THE TEXAS AWARD WERE LESS CLEAR THAN I
THINK IT IS, I WOULD RESOLVE ALL DOUBTS AGAINST AN INFERENCE THAT
RIGHTS UNDER THE LOUISIANA CONTRACT WERE ADJUDICATED IN TEXAS.  SUCH A
COURSE SEEMS TO ME ESSENTIAL SO THAT THE GREATEST POSSIBLE
ACCOMMODATIONS OF THE INTERESTS OF THE TWO STATES, CONSISTENT WITH THE
REQUIREMENTS OF FULL FAITH AND CREDIT, MAY BE HAD WHETHER THE MATTER BE
DIVORCE, WORKMEN'S COMPENSATION OR ANY OTHER SUBJECT ON WHICH STATE
POLICIES DIFFER. 

ON ITS FACE YARBOROUGH V. YARBOROUGH, 290 U.S. 202, MIGHT SEEM TO
LOOK THE OTHER WAY.  THERE A GEORGIA DECREE OF PERMANENT ALIMONY FOR A
CHILD WAS HELD TO BE ENTITLED TO FULL FAITH AND CREDIT IN SOUTH
CAROLINA WHERE THE CHILD SUBSEQUENTLY SOUGHT ADDITIONAL ALLOWANCES. 
BUT THE GEORGIA DECREE WAS MORE CLEARLY AN ADJUDICATION OF THE
AGGREGATE LIABILITY OF THE DEFENDANT THAN WAS THE TEXAS AWARD IN THE
PRESENT CASE, FOR IT RELIEVED THE FATHER ON COMPLIANCE WITH ITS
PROVISIONS OF "ALL PAYMENTS OF ALIMONY."  290 U.S. P. 207.  MOREOVER,
THE FATHER WAS NOT A RESIDENT OF SOUTH CAROLINA BUT HAD LONG BEEN
DOMICILED IN GEORGIA.  THE COURT SPECIFICALLY RESERVED THE QUESTION
WHETHER THE GEORGIA DECREE WOULD BE ENTITLED TO FULL FAITH AND CREDIT
AS A FINAL DISCHARGE OF THE DUTY TO SUPPORT HAD THE FATHER BEEN
DOMICILED IN SOUTH CAROLINA.  290 U.S. P. 213.  HERE THE TEXAS AWARD IS
NOT ONLY A LIMITED ONE.  THE EMPLOYEE IS DOMICILED IN LOUISIANA, THE
EMPLOYER IS AUTHORIZED TO DO BUSINESS IN LOUISIANA.  THE EMPLOYMENT
CONTRACT IS A LOUISIANA CONTRACT.  LOUISIANA HAS SUCH A CONSIDERABLE
INTEREST AT STAKE THAT I WOULD ALLOW ITS POLICY TO BE OBLITERATED OR
SUBORDINATED ONLY IN CASE WHAT TOOK PLACE IN TEXAS IS IRRECONCILABLE
WITH WHAT LOUISIANA NOW SEEKS TO DO.  I DO NOT THINK IT IS. 

IT IS THUS APPARENT THAT THE DECISION OF WILLIAMS V. NORTH CAROLINA
IS NO SHELTER IN THE PRESENT CONTROVERSY. 

MR. JUSTICE MURPHY JOINS IN THIS DISSENT. 

MR. JUSTICE BLACK, DISSENTING: 

THE RESPONDENT HUNT IS A RESIDENT OF LOUISIANA, EMPLOYED IN THAT
STATE BY THE PETITIONER AND SENT BY THE PETITIONER TO DO WORK IN
TEXAS.  WHILE IN TEXAS HE WAS SERIOUSLY INJURED IN THE COURSE OF HIS
EMPLOYMENT.  CONFINED TO A HOSPITAL HE WAS TOLD THAT HE COULD NOT
RECOVER COMPENSATION UNLESS HE SIGNED TWO FORMS PRESENTED TO HIM.  AS
FOUND BY THE LOUISIANA TRIAL JUDGE THERE WAS PRINTED ON EACH OF THE
FORMS "IN SMALL TYPE" THE DESIGNATION "INDUSTRIAL ACCIDENT BOARD,
AUSTIN, TEXAS."  TO GET HIS COMPENSATION HUNT SIGNED THE FORMS AND THE
TEXAS INSURER BEGAN TO PAY.  RETURNING TO HIS HOME IN LOUISIANA HUNT
APPARENTLY DISCOVERED THAT HIS INTERESTS WOULD BE MORE FULLY PROTECTED
UNDER LOUISIANA LAW AND NOTIFIED THE INSURER OF AN INTENTION TO CLAIM
UNDER THE STATUTE OF THAT STATE.  THE INSURER IMMEDIATELY STOPPED
PAYMENT TO HIM AND NOTIFIED THE TEXAS BOARD TO THAT EFFECT.  FOUR DAYS
LATER, WITHOUT ANY REQUEST FROM HUNT, THE BOARD NOTIFIED HIM AT HIS
LOUISIANA HOME THAT A HEARING WOULD BE HELD IN TEXAS WITHIN TWO AND A
HALF WEEKS "TO DETERMINE THE LIABILITY OF THE INSURANCE COMPANY" UNDER
TEXAS LAW.  HUNT DID NOT PARTICIPATE IN THAT PROCEEDING.  THE TEXAS
BOARD THEREAFTER MADE AN AWARD TO HIM WHICH, UNDER THE LAW OF TEXAS,
WAS EQUIVALENT TO A JUDGMENT AGAINST THE INSURER.  BEFORE THE TEXAS
AWARD BECAME FINAL HUNT, WHO HAD DECLINED TO ACCEPT ANY MONEY UNDER IT,
FILED SUIT AGAINST HIS EMPLOYER IN THE COURTS OF LOUISIANA UNDER THE
WORKMEN'S COMPENSATION LAW OF LOUISIANA.  HE RECOVERED A JUDGMENT FOR A
SUBSTANTIALLY LARGER SUM THAN HAD BEEN ALLOWED HIM UNDER THE TEXAS
AWARD, FROM WHICH THE LOUISIANA COURT DEDUCTED THE SUM HE HAD ALREADY
RECEIVED FROM THE TEXAS INSURER. 

THE EMPLOYER HAS CONTENDED HERE THAT THE TEXAS AWARD AGAINST THE
INSURER WAS A JUDGMENT WHICH UNDER THE FULL FAITH AND CREDIT CLAUSE
PRECLUDED THE EMPLOYEE FROM ANY FURTHER RELIEF IN THE COURTS OF
LOUISIANA.  THE COURT TODAY AGREES WITH THE EMPLOYER, HOLDING THAT
WHILE IN "EXCEPTIONAL CASES  ...  THE JUDGMENT OF ONE STATE MAY NOT
OVERRIDE THE LAWS AND POLICY OF ANOTHER, THIS COURT IS THE FINAL
ARBITER OF THE EXTENT OF THE EXCEPTIONS."  THE COURT DECLINES TO
RECOGNIZE AN EXCEPTION IN THE CASE NOW BEFORE US, BUTTRESSING ITS
CONCLUSION WITH A CONTENTION THAT THE CASE OF CHICAGO, R.I. & P. RY.
CO. V. SCHENDEL, 270 U.S. 611, REQUIRES SUCH A RESULT. 

I DISAGREE.  AS I SEE IT, THIS CASE PROPERLY INVOLVES TWO SEPARATE
LEGAL QUESTIONS:  (1) DID TEXAS INTEND THE AWARD OF ITS INDUSTRIAL
ACCIDENT BOARD AGAINST THE INSURER TO BAR THE RIGHT GRANTED THE
EMPLOYEE BY THE LOUISIANA WORKMEN'S COMPENSATION LAW TO COLLECT FROM
HIS EMPLOYER FOR THE SAME INJURY THE DIFFERENCE BETWEEN THE
COMPENSATION ALLOWED BY TEXAS AND THE MORE GENEROUS COMPENSATION
ALLOWED BY LOUISIANA?  (2) ASSUMING THE TEXAS AWARD WAS INTENDED TO
CONSTITUTE SUCH A BAR, DOES THE INTEREST OF LOUISIANA IN REGULATING THE
EMPLOYMENT CONTRACTS OF ITS RESIDENTS NEVERTHELESS PERMIT IT TO GRANT
THAT LARGER MEASURE OF COMPENSATION WHICH AS A MATTER OF LOCAL POLICY
IT BELIEVES NECESSARY?  THE DECISION OF THE COURT ON BOTH OF THESE
ISSUES APPEARS TO ME TO BE WRONG. 
I. 

WHERE A STATE COURT REFUSES TO RECOGNIZE THE JUDGMENT OF A SISTER
STATE AS A BAR TO AN ASSERTED CAUSE OF ACTION, THE FULL FAITH AND
CREDIT CLAUSE CANNOT RAISE A FEDERAL QUESTION UNLESS THE JUDGMENT WOULD
HAVE BEEN A BAR TO A SIMILAR SUIT IN THAT SISTER STATE.  R.S. SEC. 905,
U.S.C. TITLE 28, SEC. 687; TITUS V. WALLICK, 306 U.S. 282.  EVEN WHERE
THE JUDGMENT WOULD BAR THE SUIT IN THE SISTER STATE, "AS THIS COURT HAS
OFTEN RECOGNIZED, THERE ARE MANY JUDGMENTS WHICH NEED NOT BE GIVEN THE
SAME FORCE AND EFFECT ABROAD WHICH THEY HAVE AT HOME, AND THERE ARE
SOME, THOUGH VALID IN THE STATE WHERE RENDERED, TO WHICH THE FULL FAITH
AND CREDIT CLAUSE GIVES NO FORCE ELSEWHERE."  DISSENTING OPINION,
YARBOROUGH V. YARBOROUGH, 290 U.S. 202, 213, 214, 215.  WHETHER TEXAS
INTENDED THAT ITS AWARD SHOULD BAR THE EMPLOYEE HERE FROM RECOVERING
COMPENSATION UNDER THE LOUISIANA LAW IS AN ISSUE UPON WHICH TEXAS
COURTS HAVE NOT SPOKEN.  IN FACT, THEY ABSOLUTELY REFUSE TO ENTERTAIN
ANY SUITS AT ALL BASED ON THE LOUISIANA WORKMEN'S COMPENSATION LAW. 
JOHNSON V. EMPLOYERS LIABILITY CORP., 99 S.W.2D 979. 

THE GENERAL RULE OF RES JUDICATA ANNOUNCED BY TEXAS COURTS IS THAT A
JUDGMENT ON THE MERITS CONSTITUTES "A FINALITY AS TO THE CLAIM OR
DEMAND IN CONTROVERSY, CONCLUDING PARTIES AND THOSE IN PRIVITY WITH
THEM  ...  AS TO EVERY MATTER WHICH WAS OFFERED AND RECEIVED TO SUSTAIN
OR DEFEAT THE CLAIM OR DEMAND, (AND) AS TO ANY OTHER ADMISSIBLE MATTER
WHICH MIGHT HAVE BEEN OFFERED FOR THAT PURPOSE."  RIO BRAVO OIL CO. V.
HEBERT, 130 TEX. 1, 8, 9, 106 S.W.2D 242, 246.  THE OPINION OF SECTION
A OF THE TEXAS COMMISSION OF APPEALS IN OCEAN ACCIDENT & GUARANTEE
CORP. V. PRUITT, 58 S.W.2D 41, 44-45, RELIED UPON BY THE COURT,
PRESENTS AN APPLICATION OF THIS RULE TO TEXAS WORKMEN'S COMPENSATION
AWARDS.  THERE IT WAS HELD THAT AN EMPLOYEE WHO HAD BEEN DENIED A
COMPENSATION AWARD BY THE ACCIDENT BOARD COULD NOT BRING A SECOND
PROCEEDING BEFORE THE BOARD AGAINST THE SAME INSURER TO RECOVER
COMPENSATION FOR THE SAME INJURIES.  IN THE INSTANT CASE THE SITUATION
IS ENTIRELY DIFFERENT.  THE PARTIES ARE NOT THE SAME; THE ISSUES ARE
NOT THE SAME; AND THE TWO PROCEEDINGS ARE NOT UNDER THE SAME ACT.  THE
PROCEEDING IN THIS CASE BEFORE THE TEXAS BOARD WAS AGAINST THE INSURER
ONLY AND THE AWARD ENTERED, BY ITS EXPRESS TERMS, WAS LIMITED TO A
RELEASE OF THE INSURANCE COMPANY FROM FURTHER LIABILITY.  THE LIABILITY
OF THE EMPLOYER UNDER LOUISIANA LAW WAS NOT IN ISSUE BEFORE THE BOARD
AND COULD NOT HAVE BEEN PUT IN ISSUE.  THE EMPLOYER WAS NOT A PARTY TO
THAT PROCEEDING; NOR WAS THERE "PRIVITY" BETWEEN THE INSURER AND THE
EMPLOYER SINCE THE INSURER'S LIABILITY DID NOT EXTEND TO RIGHTS WHICH
THE EMPLOYEE MIGHT HAVE AGAINST HIS EMPLOYER UNDER LOUISIANA LAW. 
MOREOVER THE JURISDICTION OF THE ACCIDENT BOARD IS LIMITED TO
ADMINISTRATION OF THE TEXAS WORKMEN'S COMPENSATION ACT; EVEN IF THE
ISSUES OF LIABILITY UNDER LOUISIANA LAW HAD BEEN RAISED THEY COULD NOT
HAVE BEEN DECIDED BY THAT BOARD.  THE DECISION OF THIS COURT TODAY,
THEREFORE, IS TANTAMOUNT TO HOLDING THAT TEXAS INTENDED TO EXTINGUISH A
CLAIM AGAINST THE EMPLOYER IN A PROCEEDING IN WHICH THE EMPLOYER WAS
NOT A PARTY AND THE ISSUE OF ITS LIABILITY UNDER LOUISIANA LAW WAS NOT
ALLOWED TO BE RAISED.  I CANNOT IMPUTE SUCH AN INTENTION TO TEXAS. 

THE STATUTES OF TEXAS LEND SUPPORT TO THE VIEW THAT THE ACCIDENT
BOARD'S AWARD WAS NOT INTENDED TO BAR THE EMPLOYEE'S RIGHTS AGAINST HIS
EMPLOYER ARISING UNDER THE LAW OF LOUISIANA.  UNDER THE TEXAS STATUTES
AN AWARD OF THE ACCIDENT BOARD NEITHER ADDS TO NOR SUBTRACTS FROM AN
EMPLOYER'S LIABILITY TO AN INJURED EMPLOYEE.  THAT LIABILITY IS FIXED,
NOT BY AN AWARD, BUT BY A TRIPARTITE CONTRACT IMPLIED BY THE TEXAS
STATUTE BETWEEN THE EMPLOYER, THE EMPLOYEE, AND THE INSURER, UNDER
WHICH THE EMPLOYEE AGREES NOT TO SUE THE EMPLOYER FOR OCCUPATIONAL
INJURIES UNDER THE COMMON LAW OR STATUTES OF TEXAS.  FN1  AN EMPLOYEE
WHO FAILS TO ELECT TO RETAIN HIS COMMON LAW REMEDIES AGAINST HIS
EMPLOYER IS DEEMED TO HAVE WAIVED ONLY HIS "RIGHT OF ACTION AT COMMON
LAW OR UNDER ANY STATUTE OF THIS STATE."  FN2  CLEARLY THIS TEXAS
STATUTE DID NOT INTEND THAT A WORKMAN WHO ELECTED TO COME UNDER THE
COMPENSATION ACT SHOULD THEREBY LOSE ANY RIGHTS CREATED BY THE LAWS OF
OTHER STATES.  THAT SECTION OF THE TEXAS STATUTES RELIED UPON BY THE
COURT REQUIRES NO DIFFERENT RESULT.  IT PROVIDES THAT AN EMPLOYEE
INJURED "OUTSIDE OF THE STATE" CANNOT RECOVER UNDER THE TEXAS ACT IF
"HE HAS ELECTED TO PURSUE HIS REMEDY AND RECOVERS IN THE STATE WHERE
SUCH INJURY OCCURRED."  FN3  PLAINLY THIS LATTER STATUTE PERTAINS ONLY
TO THE RIGHT OF RECOVERY UNDER TEXAS LAW; IT DOES NOT PURPORT TO AFFECT
RIGHTS UNDER THE LAWS OF OTHER STATES.  NOR DOES IT PROCEED ON ANY
THEORY OF RES JUDICATA FOR IF AN EMPLOYEE FAILS TO RECOVER IN THE OTHER
STATE HE CAN NEVERTHELESS RECOVER AN AWARD IN TEXAS.  AND IN ANY EVENT
THE STATUTE COULD NOT APPLY TO THE INSTANT CASE, FOR THIS EMPLOYEE'S
INJURY DID NOT OCCUR "OUTSIDE" OF TEXAS.  THE DICTUM OF THE TRAVELERS
INSURANCE CO. V. CASON, 132 TEX. 393, 396, 124 S.W.2D 321, REFERRED TO
BY THE COURT, PERTAINS TO THE RIGHTS OF A TEXAS WORKMAN WHO WAS INJURED
IN PENNSYLVANIA. 

IN THE ABSENCE OF COMPELLING LANGUAGE THIS COURT SHOULD NOT CONSTRUE
THE STATUTES OF TEXAS IN SUCH A MANNER THAT GRAVE QUESTIONS OF THEIR
CONSTITUTIONALITY ARE RAISED.  CF. YARBOROUGH V. YARBOROUGH, SUPRA,
213, 214.  IT IS EXTREMELY DOUBTFUL WHETHER TEXAS HAS THE POWER, BY ANY
LEGAL DEVICE, TO PRECLUDE A SISTER STATE FROM GRANTING TO ITS OWN
RESIDENTS EMPLOYED WITHIN ITS OWN BORDERS THAT MEASURE OF COMPENSATION
FOR OCCUPATIONAL INJURIES WHICH IT DEEMS ADVISABLE.  "A STATE CAN
LEGISLATE ONLY WITH REFERENCE TO ITS OWN JURISDICTION; AND THE FULL
FAITH AND CREDIT CLAUSE DOES NOT REQUIRE THE ENFORCEMENT OF EVERY RIGHT
WHICH HAS RIPENED INTO A JUDGMENT OF ANOTHER STATE OR HAS BEEN
CONFERRED BY ITS STATUTES."  BRODERICK V. ROSNER, 294 U.S. 629, 642. 
THE PRACTICAL RESULT OF THE DECISION HERE IS TO HOLD THAT TEXAS HAS
POWER TO NULLIFY A LOUISIANA STATUTE WHICH GIVES THE BENEFICIAL
PROTECTION OF WORKMEN'S COMPENSATION TO AN INJURED WORKMAN WHO IS A
RESIDENT OF LOUISIANA AND MADE HIS CONTRACT OF EMPLOYMENT THERE.  I "AM
NOT PERSUADED THAT THE FULL FAITH AND CREDIT CLAUSE GIVES SANCTION TO
SUCH CONTROL BY ONE STATE OF THE INTERNAL AFFAIRS OF ANOTHER." 
YARBOROUGH V. YARBOROUGH, SUPRA, 214. 

                                 II. 

IT IS APPARENTLY CONCEDED THAT LOUISIANA WOULD NOT HAVE BEEN REQUIRED
TO APPLY THE TEXAS STATUTE HAD THERE NOT BEEN A JUDGMENT IN THE
PARTICULAR CASE BY THE TEXAS TRIBUNAL.  THIS FREEDOM OF THE STATE TO
APPLY ITS OWN POLICY IN WORKMEN'S COMPENSATION CASES DESPITE A
CONFLICTING STATUTE IN THE STATE IN WHICH THE ACCIDENT OCCURS RESTS ON
THE THEORY THAT THE STATE WHERE THE WORKMAN IS HIRED OR IS DOMICILED
HAS A GENUINE AND SPECIAL INTEREST IN THE OUTCOME OF THE LITIGATION. 
ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N, 294 U.S. 532, 541
543, 549; CF. PACIFIC EMPLOYERS INS. CO. V. INDUSTRIAL ACCIDENT COMM'N,
306 U.S. 493, 503.  THESE CASES MARK RECOGNITION OF THE FACT THAT THE
AUTHORITY OF THE STATES TO ACT IN ANY FIELD IS TO BE MEASURED AS MUCH
BY VITAL STATE INTERESTS AS BY TECHNICAL LEGAL CONCEPTS.  CF. HOOPESTON
CANNING CO. V. CULLEN, 318 U.S. 313.  THE ARGUMENT OF STATE INTEREST IS
HARDLY LESS COMPELLING WHEN LOUISIANA CHOOSES TO REJECT AS DECISIVE OF
THE ISSUES OF THE CASE A FOREIGN JUDGMENT THAN WHEN IT REJECTS A
FOREIGN STATUTE. 

THE INTEREST OF TEXAS IN PROVIDING COMPENSATION FOR AN INJURED
EMPLOYEE WHO LIKE RESPONDENT WAS ONLY TEMPORARILY EMPLOYED IN THE STATE
IS NOT THE SAME AS THAT OF LOUISIANA WHERE THE RESPONDENT WAS DOMICILED
AND WHERE THE CONTRACT OF EMPLOYMENT WAS MADE.  SOMEONE HAS TO TAKE
CARE OF AN INDIVIDUAL WHO HAS RECEIVED, AS HAS RESPONDENT, AN INJURY
WHICH PERMANENTLY DISABLES HIM FROM PERFORMANCE OF HIS WORK.  IF
EMPLOYERS OR THE CONSUMERS OF THEIR GOODS DO NOT SHOULDER THIS
RESPONSIBILITY, THE GENERAL PUBLIC OF A STATE MUST.  NEITHER STATE
MERELY VINDICATES A PRIVATE WRONG GROWING OUT OF TORTIOUS CONDUCT. 
MCKANE V. NEW AMSTERDAM CASUALTY CO., 199 SO. 175, 179(CT. OF APP. OF
LA., ORLEANS); TEXAS EMPLOYERS' INS. ASSN. V. PRICE, 291 S.W. 287,
290.  THE LOUISIANA ACT WAS PASSED IN THE INTEREST OF THE GENERAL
WELFARE OF THE PEOPLE OF LOUISIANA.  PUCHNER V. EMPLOYERS' LIABILITY
CORP., 198 LA. 922, 5 SO.2D 288.  FN4  IF IT CHOOSES TO BE MORE
GENEROUS TO INJURED WORKMEN THAN TEXAS, NO CONSTITUTIONAL ISSUE IS
PRESENTED. 

THE DECISION OF THE COURT IS NOT REQUIRED BY THE SCHENDEL CASE.  IN
THAT CASE AN EMPLOYEE BROUGHT AN ACTION IN A MINNESOTA COURT UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT.  HIS EMPLOYER BROUGHT AN ACTION IN
IOWA UNDER THE STATE LAW, THE RESULT OF WHICH WAS A HOLDING BY THE IOWA
COURT THAT THE ACTION HAD OCCURRED IN INTRASTATE COMMERCE.  THIS COURT
HELD IN THE SCHENDEL CASE, WHICH WAS A REVIEW OF THE MINNESOTA
PROCEEDINGS, THAT THE DECISION OF THE IOWA COURT THAT THE ACCIDENT
OCCURRED IN INTRASTATE COMMERCE WAS RES JUDICATA AND THAT THE EMPLOYEE
COULD NOT ATTEMPT TO SHOW THAT THE ACCIDENT HAD IN FACT OCCURRED IN
INTERSTATE COMMERCE AS WOULD HAVE BEEN NECESSARY TO BRING THE CASE
WITHIN THE COVERAGE OF THE FEDERAL ACT.  THE CASE IS WHOLLY
DISTINGUISHABLE SINCE THE POLICY OF THE FEDERAL EMPLOYERS' LIABILITY
ACT HAS NOT BEEN THOUGHT TO REQUIRE THAT A FEDERAL AWARD SUPPLEMENT A
STATE WORKMEN'S COMPENSATION AWARD.  THE STATUTES INVOLVED WERE NOT
CONFLICTING BUT WERE MUTUALLY EXCLUSIVE, THE FEDERAL ACT COVERING ONLY
INJURIES IN INTERSTATE COMMERCE, U.S.C. TITLE 45, SEC. 51 ET SEQ. 

TODAY'S DECISION IS FLATLY IN CONFLICT WITH ACCEPTED LAW AND
PRACTICE.  THE RESTATEMENT OF CONFLICT OF LAWS, SEC. 403 STATES
CATEGORICALLY THAT AN "AWARD ALREADY HAD UNDER THE WORKMEN'S
COMPENSATION ACT OF ANOTHER STATE WILL NOT BAR A PROCEEDING UNDER AN
APPLICABLE ACT, BUT THE AMOUNT PAID ON A PRIOR AWARD IN ANOTHER STATE
WILL BE CREDITED ON THE SECOND AWARD," AND ONE OF THE FOREMOST STUDIES
OF WORKMEN'S COMPENSATION STATES THE SAME RULE.  FN5  EVEN IN THE
ABSENCE OF AN EXPRESS STATUTE SEVERAL STATE COURTS HAVE EXPLICITLY
APPROVED THIS PRACTICE.  GILBERT V. DES LAURIERS COLUMN MOULD CO., 180
APP. DIV. 59, 167 N.Y.S. 274; INTERSTATE POWER CO. V. INDUSTRIAL
COMMISSION, 203 WIS. 466, 234 N.W. 889; SEE SIMILARLY MCLAUGHLIN'S
CASE, 274 MASS. 217, 174 N.E. 338; MIGUES'S CASE, 281 MASS. 373, 183
N.E. 847.  TEXAS ITSELF FOR A TIME APPLIED A SIMILAR RULING.  TEXAS
EMPLOYERS' INS. ASSN. V. PRICE, 300 S.W. 667. 

NORTH CAROLINA PROVIDES BY STATUTE IN CASES LIKE THE PRESENT THAT THE
EMPLOYEE SHOULD BE ENTITLED TO RECEIVE COMPENSATION PROVIDED THAT IF HE
RECEIVES COMPENSATION FROM A STATE OTHER THAN NORTH CAROLINA, HE WILL
BE GIVEN NO MORE COMPENSATION BY NORTH CAROLINA THAN WOULD RAISE THE
TOTAL RECOVERY TO THE MAXIMUM ALLOWED BY THE NORTH CAROLINA LAW.  FN6
SIX OTHER STATES HAVE SIMILAR STATUTES.  FN7  THE COMMITTEE ON
WORKMEN'S COMPENSATION LEGISLATION OF THE INTERNATIONAL ASSOCIATION OF
INDUSTRIAL ACCIDENT BOARDS AND COMMISSIONS HAS DRAFTED A UNIFORM STATE
LAW ON THE SUBJECT WHICH, WERE IT APPLICABLE IN THE INSTANT CASE, WOULD
PERMIT THE EMPLOYEE TO WAIVE HIS RIGHTS UNDER THE LOUISIANA LAW BY
BRINGING AN ACTION UNDER THE TEXAS LAW ONLY BY FILING A WRITTEN WAIVER
WITH A LOUISIANA COMMISSION WHICH WOULD NOT BE BINDING UNTIL APPROVED
BY SUCH A COMMISSION.  FN8  THIS PROPOSED UNIFORM STATE LAW WOULD
PRESUMABLY BE UNCONSTITUTIONAL UNDER THE DECISION ANNOUNCED TODAY SINCE
IT WOULD LEAVE IN LOUISIANA THE POWER TO DECIDE WHETHER THE EMPLOYEE
SHOULD RECEIVE ADDITIONAL COMPENSATION DESPITE THE EFFECT WHICH TEXAS
MIGHT SEEK TO GIVE TO ITS AWARD. 

WHETHER THE THEORY IS THAT TEXAS DID NOT INTEND ITS JUDGMENT TO BAR A
PROCEEDING IN LOUISIANA OR THAT THE TEXAS WORKMEN'S COMPENSATION LAW IS
SO INCOMPATIBLE WITH THE POLICY OF LOUISIANA THAT LOUISIANA IS NOT
BOUND BY THE TEXAS JUDGMENT, THE RESULT SHOULD BE THE SAME:  THERE
SHOULD BE NO CONSTITUTIONAL BARRIER PREVENTING A STATE IN EFFECT FROM
INCREASING THE WORKMEN'S COMPENSATION AWARD OF ANOTHER STATE IN A CASE
IN WHICH IT HAS JURISDICTION OVER THE PARTICIPANTS AND THE SOCIAL
RESPONSIBILITY FOR THE RESULTS.  WHERE TWO STATES BOTH HAVE A
LEGITIMATE INTEREST IN THE OUTCOME OF WORKMEN'S COMPENSATION
LITIGATION, THE QUESTION OF WHETHER THE SECOND STATE WHICH CONSIDERS
THE CASE SHOULD ABIDE BY THE DECISION OF THE FIRST IS A QUESTION OF
POLICY WHICH SHOULD BE DECIDED BY THE STATE LEGISLATURES AND COURTS. 
FN9  CERTAINLY FAIR ARGUMENT CAN BE MADE FOR EITHER DISPOSITION OF THE
POLICY QUESTION.  TEXAS ITSELF DECIDED THE QUESTION ONE WAY BY DECISION
IN THE PRICE CASE, 300 S.W. 667, SUPRA, AND, TO A LIMITED EXTENT, THE
OTHER WAY BY STATUTE.  FN10  STATE LAWS VARY, AND UNIFORMITY IS NOT THE
HIGHEST VALUE IN THE LAW OF WORKMEN'S COMPENSATION, A POINT WELL MADE
BY THE SUPREME COURT OF WISCONSIN WHEN CONFRONTED WITH THIS VERY
PROBLEM IN INTERSTATE POWER CO. V. INDUSTRIAL COMMISSION, SUPRA, 477:
"THIS STATE ADOPTED A VERY LIBERAL ACT, AND IT IS REASONABLY TO BE
INFERRED THAT THE LEGISLATURE WAS MORE CONCERNED WITH MAKING CERTAIN
THAT WORKMEN WITHIN ITS JURISDICTION SHOULD GET ALL THE BENEFITS OF THE
ACT THAN IT WAS WITH ANY CONFLICTS OR LEGAL DIFFICULTIES WHICH MIGHT
ARISE OUT OF LACK OF UNIFORMITY.  OUR PLAIN DUTY IS TO GIVE TO THE ACT
ITS INTENDED EFFECT, AND TO LEAVE TO THE LEGISLATURE THE ENACTMENT OF
PROVISIONS DESIGNED TO LIMIT ITS OPERATION IN THE INTEREST OF
UNIFORMITY." 

MUCH HAS BEEN MADE IN THE ARGUMENT HERE OF THE ALLEGED VICE OF DOUBLE
RECOVERY WHICH IS SAID TO BE ALLOWED THE RESPONDENT.  LET ME EMPHASIZE
THAT THERE IS NO DOUBLE RECOVERY.  IN THE FIRST PLACE THE LOUISIANA
COURT HAS DEDUCTED FROM ITS JUDGMENT THE AMOUNT OF THE TEXAS PAYMENTS. 
IN THE SECOND PLACE THE AGGREGATE OF THE AWARDS FROM BOTH STATES, IF
ADDED TOGETHER, WOULD BE FAR LESS THAN THE TOTAL LOSS SUFFERED BY
RESPONDENT.  THE TEXAS ALLOWANCE SCARCELY AMOUNTS TO A "RECOVERY" IN
THE SENSE OF GIVING FULL COMPENSATION FOR LOSS, AND HAS BEEN DESCRIBED
BY A TEXAS COURT TO BE "MORE IN THE NATURE OF A PENSION THAN A
LIABILITY FOR BREACH OF CONTRACT, OR DAMAGES INTACT."  TEXAS EMPLOYERS'
INS. ASSN. V. PRICE, 300 S.W. 667, SUPRA, 669.  SEE ALSO BIDDINGER V.
STEININGER-TAYLOR CO., 25 OHIO DEC. 603, 608.    THE COURT SEEMS IN
SOME PARTS OF ITS OPINION TO ADOPT A WHOLLY NEW AND FAR REACHING POLICY
RELATING TO THE POWER OF STATES TO ALLOW COMPLETE INDEMNIFICATION FOR A
PERSONAL INJURY BY PERMITTING MORE THAN ONE SUIT AGAINST THE WRONGDOER,
AND TO ENGRAFT THIS POLICY ON TO THE FULL FAITH AND CREDIT CLAUSE. 
COURTS SCHOOLED IN THE COMMON LAW HAVE LONG OBJECTED TO WHAT HAS BEEN
DESIGNATED "SPLITTING A CAUSE OF ACTION."  THEY HAVE PHRASED THIS
POLICY OBJECTION IN MANY COMMON LAW CONCEPTS, ONE OF WHICH HAS BEEN THE
DOCTRINE OF "ELECTION OF REMEDIES."  THIS PREDILECTION OF COMMON LAW
JUDGES IN FAVOR OF COMPELLING THE AGGREGATION OF ALL POSSIBLE ELEMENTS
OF DAMAGE INTO ONE LAW SUIT IS HERE APPARENTLY ELEVATED TO A POSITION
OF CONSTITUTIONAL IMPREGNABILITY IN THE FULL FAITH AND CREDIT CLAUSE. 
THE COURT NOW SEEMS TO INTERPRET THAT CLAUSE TO PROHIBIT A RECOVERY OF
FULL COMPENSATION FOR A PERSONAL INJURY IN MORE THAN ONE SUIT EVEN IF
ONE OR MORE STATES THINK FULL COMPENSATION CAN BEST BE ACCORDED IN THIS
MANNER.  THE PRACTICAL RESULT OF THIS DRASTIC NEW CONSTITUTIONAL
DOCTRINE IS THAT STATE B MUST GIVE MORE FAITH AND CREDIT TO STATE A'S
JUDGMENT FOR DAMAGES FOR PERSONAL INJURY THAN STATE A ITSELF INTENDED
THE JUDGMENT SHOULD BE GIVEN.  STATE A'S AND STATE B'S JUDGMENTS ARE
SAID TO BE MUTUALLY EXCLUSIVE, NOT BECAUSE EITHER STATE MADE THEM SO,
BUT APPARENTLY ON THE GROUND THAT THE FULL FAITH AND CREDIT CLAUSE
IMPOSES A RULE OF SUBSTANTIVE LAW WHICH REQUIRES THIS RESULT.  THIS
DOCTRINE WOULD ACCORD TO THE FULL FAITH AND CREDIT CLAUSE A MEANING
WHICH IT WOULD HAVE HAD IF ITS AUTHORS HAD STATED, "FULL FAITH AND
CREDIT SHALL BE GIVEN IN EACH STATE TO THE  ...  JUDICIAL PROCEEDINGS
OF EVERY OTHER STATE, AND IN ADDITION TWO RECOVERIES SHALL NEVER BE
ALLOWED BY SEPARATE STATES FOR LOSSES RESULTING FROM A SINGLE PERSONAL
INJURY."  WHEN THE AUTHORS OF THE CONSTITUTION DESIRED TO PROHIBIT TWO
CRIMINAL PROSECUTIONS FOR THE SAME OFFENSE, THEY HAD NO DIFFICULTY IN
EXPRESSING THEIR VIEWS.  FN11  HAD THEY WISHED TO HOBBLE THE STATES IN
THEIR EFFORTS TO PROVIDE MORE THAN ONE REMEDY IN ORDER TO ACCOMPLISH
FULL JUSTICE IN CIVIL CASES, I THINK THEY COULD AND WOULD HAVE
EXPRESSED THEMSELVES WITH EQUAL CLARITY AND EMPHASIS. 

                                 III. 

THE EFFECT OF THE DECISION OF THIS COURT TODAY IS TO STRIKE DOWN AS
UNCONSTITUTIONAL AN IMPORTANT PROVISION OF THE WORKMEN'S COMPENSATION
LAWS OF AT LEAST ELEVEN STATES.  FOR MORE THAN HALF A CENTURY THE POWER
OF THE STATES TO REGULATE THEIR DOMESTIC ECONOMIC AFFAIRS HAS BEEN
NARROWLY RESTRICTED BY JUDICIAL INTERPRETATION OF THE FEDERAL
CONSTITUTION.  THE CHIEF WEAPON IN THE ARSENAL OF RESTRICTION, ONLY
RECENTLY FALLING INTO DISREPUTE BECAUSE OF OVERUSE, IS THE DUE PROCESS
CLAUSE.  THE FULL FAITH AND CREDIT CLAUSE, USED TODAY TO SERVE THE SAME
PURPOSES, IS NO BETTER SUITED TO CONTROL THE FREEDOM OF THE STATES. 
THE PRACTICAL QUESTION NOW BEFORE US CAN BE DECIDED BY THE STATES IN
MANY WAYS AND MOST OF THE STATES WHICH HAVE EXPRESSED THEMSELVES SELVES
SEEM READY TO DISPOSE OF THE PROBLEM AS HAS LOUISIANA.  OUR NOTIONS OF
POLICY SHOULD NOT PERMIT THE CONSTITUTION TO BECOME A BARRIER TO FREE
EXPERIMENTATION BY THE STATES WITH THE PROBLEMS OF WORKMEN'S
COMPENSATION. 

FN1  CF. ANDERSON-BERNEY REALTY CO. V. PLASIDA SORIA, 123 TEX. 100,
67 S.W.2D 222.  IF PETITIONER HAD ANY DEFENSE TO HUNT'S SUIT UNDER
LOUISIANA LAW, IT WAS NOT THE AWARD BUT THE IMPLIED CONTRACT.  SEE
MIDDLETON V. TEXAS POWER & LIGHT CO., 108 TEX. 96, 185 S.W. 556, AFF'D
249 U.S. 152.  PETITIONER, HOWEVER, PLEADED ONLY THE AWARD FOR ITS
DEFENSE. 

FN2  TEXAS REV. CIV. STAT., TITLE 130, ART. 8306, SEC. 3(A).  I DO
NOT AGREE WITH THE COURT THAT SEC. 3 OF THIS ARTICLE PURPORTS TO COMPEL
AN EMPLOYEE TO WAIVE RIGHTS WHICH ARISE UNDER THE LAWS OF ANOTHER
STATE.  SUCH A CONSTRUCTION WOULD REDUCE THE ABOVE QUOTED LANGUAGE OF
SEC. 3(A) TO DECEPTIVE VERBIAGE. 

FN3  REV. CIV. STAT., ARTICLE 8306, SEC. 19.  APPARENTLY ONLY ONE
OTHER STATE, OREGON, HAS A STATUTE COMPARABLE TO THIS.  SEE OREGON CODE
(1935, SUPPLEMENT) SEC. 49-1813A. 

FN4  THE CLASSIC THEORY OF THE INTEREST OF A STATE IN WORKMEN'S
COMPENSATION WAS EXPRESSED BY THIS COURT IN UPHOLDING THE
CONSTITUTIONALITY OF A STATE COMPENSATION SYSTEM:  IN THE ABSENCE OF A
WORKMEN'S COMPENSATION SYSTEM, "THE INJURED WORKMAN IS LEFT TO BEAR THE
GREATER PART OF INDUSTRIAL ACCIDENT LOSS, WHICH BECAUSE OF HIS LIMITED
INCOME HE IS UNABLE TO SUSTAIN, SO THAT HE AND THOSE DEPENDENT UPON HIM
ARE OVERCOME BY POVERTY AND FREQUENTLY BECOME A BURDEN UPON PUBLIC OR
PRIVATE CHARITY."  NEW YORK CENTRAL R. CO. V. WHITE, 243 U.S. 188,
197. 

FN5  DODD, ADMINISTRATION OF WORKMEN'S COMPENSATION (1936) PP. 819,
820.  SEE ALSO TO THE SAME EFFECT 2 BEALE, THE CONFLICT OF LAWS (1935)
SEC. 403.1. 

FN6  N.C. CODE (1939) SEC. 8081(RR). 

FN7  FLORIDA:  FLORIDA STATUTES (1941) SEC. 440.09(1); GEORGIA:
GEORGIA CODE (1933) SEC. 114-411; MARYLAND:  MARYLAND ANNOTATED CODE
(1939), FLACK'S EDITION, ART. 101, SEC. 80(3); OHIO:  PAGE'S OHIO
GENERAL CODE, SEC. 1465-68; SOUTH CAROLINA:  S.C. CODE (1942) SEC. 7035
39; AND VIRGINIA:  VIRGINIA CODE (1942) SEC. 1887(37).  NO LESS THAN
THIRTY-FOUR STATES HAVE ENACTED STATUTES WHICH EXPRESSLY PERMIT
RECOVERY OF WORKMEN'S COMPENSATION UNDER SPECIFIED CIRCUMSTANCES FOR
INJURIES RECEIVED IN ANOTHER STATE.  AND THE COURTS OF NINE ADDITIONAL
STATES HAVE CONSTRUED STATUTES WHICH ARE NOT EXPRESS TO ACHIEVE THE
SAME RESULT.  SEE SCHNEIDER, WORKMEN'S COMPENSATION LAW (1941) VOL. 1,
C. 5, PP. 441-568; SCHNEIDER, WORKMEN'S COMPENSATION STATUTES (1939),
VOLS.  1-4. 

FN8  U.S. BUREAU OF LABOR STATISTICS BULLETIN NO. 577(1933) PP. 15
16. 

FN9  "THE INTEREST, WHICH NEW HAMPSHIRE HAS, IN EXERCISING THAT
CONTROL, DERIVED FROM THE PRESENCE OF EMPLOYER AND EMPLOYE WITHIN ITS
BORDERS, AND THE COMMISSION OF THE TORTIOUS ACT THERE, IS AT LEAST AS
VALID AS THAT OF VERMONT, DERIVED FROM THE FACT THAT THE STATUS IS THAT
OF ITS CITIZENS, AND ORIGINATED WHEN THEY WERE IN VERMONT, BEFORE GOING
TO NEW HAMPSHIRE.  I CAN FIND NOTHING IN THE HISTORY OF THE FULL FAITH
AND CREDIT CLAUSE, OR THE DECISIONS UNDER IT, WHICH LENDS SUPPORT TO
THE VIEW THAT IT COMPELS ANY STATE TO SUBORDINATE ITS DOMESTIC POLICY,
WITH RESPECT TO PERSONS AND THEIR ACTS WITHIN ITS BORDERS, TO THE LAWS
OF ANY OTHER."  CONCURRING OPINION IN BRADFORD ELECTRIC LIGHT CO. V.
CLAPPER, 286 U.S. 145, 163, 164. 

FN10  REV. CIV. STAT., ARTICLE 8306, SEC. 19. 

FN11  UNITED STATES CONSTITUTION, FIFTH AMENDMENT.  IT HAS BEEN HELD
THAT, CONSISTENT WITH THE FIFTH AMENDMENT, THE FEDERAL GOVERNMENT CAN
IMPOSE CRIMINAL LIABILITY UPON AN INDIVIDUAL FOR THE SAME CONDUCT FOR
WHICH HE HAS BEEN TRIED AND CONVICTED UNDER A STATE CRIMINAL STATUTE. 
UNITED STATES V. LANZA, 260 U.S. 377. 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, AND MR. JUSTICE RUTLEDGE
CONCUR IN THIS OPINION. 
..END :




ATLANTIC REFINING CO. V. MOLLER, 320 U.S. 462 


NO. 56.  ARGUED DECEMBER 7, 1943.  - DECIDED DECEMBER 20, 1943.  - 134
F.2D 1000, REVERSED. 


ANCHOR VESSELS OR OTHER CRAFT IN NAVIGABLE CHANNELS IN SUCH A MANNER AS
TO PREVENT OR OBSTRUCT THE PASSAGE OF OTHER VESSELS OR CRAFT."  HELD: 

1.  AN EXCEPTION TO SEC. 15 IS RECOGNIZED WHERE LITERAL COMPLIANCE
WITH ITS TERMS WOULD CREATE A DANGER TO NAVIGATION WHICH A DEPARTURE
FROM ITS TERMS COULD AVOID OR LESSEN.  P. 466. 

2.  THE CIRCUMSTANCES IN WHICH A VESSEL IN THIS CASE WAS TWICE
ANCHORED IN A NAVIGABLE CHANNEL DURING A FOG WARRANTED AN EXCEPTION TO
SEC. 15 IN EACH INSTANCE.  P. 467. 

ATLANTIC REFINING CO. V. MOLLER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 319 U.S. 737, TO REVIEW THE REVERSAL OF A DECREE WHICH,
IN A SUIT IN ADMIRALTY ARISING OUT OF A COLLISION, AWARDED DAMAGES TO
THE LIBELLANT AND DISMISSED A CROSSLIBEL, 40 F.SUPP.  641.  THE
REVIEWING COURT FOUND STATUTORY NEGLIGENCE ON THE PART OF THE
LIBELLANT'S VESSEL, AND ORDERED A DIVISION OF THE DAMAGES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WHILE LYING AT ANCHOR IN THE CHANNEL OF THE DELAWARE RIVER THE TANKER
"BOHEMIAN CLUB," OWNED BY THE PETITIONER, WAS STRUCK BY THE MOTOR
VESSEL "LAURA MAERSK," OWNED BY THE RESPONDENT.  DAMAGE TO EACH VESSEL
RESULTED, FOR WHICH THE RESPECTIVE OWNERS SOUGHT RECOVERY IN THIS
ADMIRALTY PROCEEDING.  THE DISTRICT COURT FOUND THAT THE COLLISION WAS
CAUSED BY THE EXCESSIVE RATE OF SPEED AT WHICH THE "LAURA MAERSK" WAS
PROCEEDING DOWN THE CHANNEL, RENDERED JUDGMENT FOR THE FULL AMOUNT OF
DAMAGES INFLICTED UPON THE "BOHEMIAN CLUB," AND DISMISSED THE CROSS
LIBEL OF RESPONDENT AGAINST THE "BOHEMIAN CLUB."  40 F.SUPP.  641.  THE
CIRCUIT COURT OF APPEALS APPROVED THE DISTRICT COURT'S FINDING THAT THE
"LAURA MAERSK" WAS NEGLIGENT BUT CONCLUDED, WITH ONE JUDGE DISSENTING,
THAT THE "BOHEMIAN CLUB" WAS ALSO NEGLIGENT, AND REVERSED WITH
DIRECTIONS THAT THE RULE OF DIVIDED DAMAGES BE APPLIED.  134 F.2D
1000.  SEE THE SCHOONER CATHARINE V. DICKINSON, 17 HOW.  170, 177-178;
THE NORTH STAR, 106 U.S. 17, 20.  THE CIRCUIT COURT'S CONCLUSION THAT
THE "BOHEMIAN CLUB" WAS NEGLIGENT RESTED UPON ITS INTERPRETATION OF THE
FOLLOWING PORTION OF SEC. 15 OF AN ACT OF MARCH 3, 1899:  "IT SHALL NOT
BE LAWFUL TO TIE UP OR ANCHOR VESSELS OR OTHER CRAFT IN NAVIGABLE
CHANNELS IN SUCH A MANNER AS TO PREVENT OR OBSTRUCT THE PASSAGE OF
OTHER VESSELS OR CRAFT."  FN1  WE GRANTED CERTIORARI BECAUSE OF AN
ALLEGED CONFLICT AMONG THE CIRCUITS AS TO THE PROPER INTERPRETATION TO
BE GIVEN THIS ACT.  FN2 

THE FINDINGS OF BOTH COURTS SHOW THAT THE ACCIDENT HAPPENED UNDER THE
FOLLOWING CIRCUMSTANCES.  AT ABOUT 7:30 A.M. THE "BOHEMIAN CLUB," 435
FEET LONG, WAS PROCEEDING NORTHWARD ON THE EAST SIDE OF THE CHANNEL OF
THE DELAWARE RIVER WHEN SHE ENCOUNTERED A DENSE FOG.  UNABLE TO MOVE
WITHOUT ENDANGERING HERSELF AND OTHER VESSELS, AND UNABLE TO OBTAIN
ANCHORAGE WITHIN A DISTANCE OF FIVE MILES, SHE DROPPED ANCHOR ALONG HER
COURSE IN THE CHANNEL.  AT THIS POINT THE CHANNEL WAS APPROXIMATELY
1,200 FEET WIDE, AND NORTHBOUND VESSELS WERE REQUIRED TO USE THE 400
FEET ADJACENT TO THE CHANNEL'S EASTERN BOUNDARY.  UNDER THE
CIRCUMSTANCES, THE SAFEST COURSE OF CONDUCT FOR THE "BOHEMIAN CLUB" WAS
TO ANCHOR WHERE IT DID.  ABOUT 10 A.M. THE FOG LIFTED SLIGHTLY AND THE
MASTER DISCOVERED A LARGE STEEL BUOY ABOUT 150 FEET TO THE NORTHEAST OF
THE VESSEL.  THE TIDE WAS THEN EBB, AND WAS FLOWING AWAY FROM THE BUOY,
BUT WAS DUE TO CHANGE TO FLOOD SHORTLY.  FEARING THAT THIS CHANGE MIGHT
CAUSE THE VESSEL TO FOUL THE BUOY, THE MASTER HAD THE ANCHOR LIFTED,
THE ENGINES PUT SLOW AHEAD, AND THE RUDDER PUT HARD RIGHT.  IN LESS
THAN FIVE MINUTES, HOWEVER, THE FOG AGAIN DROPPED, AND THE VESSEL WAS
AGAIN ANCHORED.  THIS TIME, APPARENTLY BECAUSE SHE HAD BEEN CARRIED BY
THE TIDE, THE "BOHEMIAN CLUB" LAY SOMEWHAT SOUTH AND WEST OF HER
ORIGINAL POSITION SO THAT SHE PARTIALLY OBSTRUCTED THE WESTERN PART OF
THE CHANNEL USED BY SOUTHBOUND VESSELS.  THERE WAS, HOWEVER, AMPLE ROOM
IN THE WESTERN PART OF THE CHANNEL FOR A SOUTHBOUND VESSEL TO PASS THE
"BOHEMIAN CLUB"; IN FACT, SINCE THE WESTERN PART OF THE CHANNEL WAS
TWICE AS WIDE AS THE EASTERN PART, THERE WAS MORE SPACE FOR SOUTHBOUND
VESSELS TO PASS THAN THERE HAD BEEN FOR NORTHBOUND VESSELS TO PASS WHEN
THE "BOHEMIAN CLUB" WAS ANCHORED IN THE EASTERN PART OF THE CHANNEL. 
THERE ARE NO FINDINGS THAT THE MASTER OF THE "BOHEMIAN CLUB" HAD ANY
REASON TO BELIEVE THAT HIS VESSEL CONSTITUTED A MORE DANGEROUS
OBSTRUCTION TO RIVER TRAFFIC IN GENERAL  FN3  IN HER SECOND POSITION
THAN IN HER ORIGINAL POSITION.  IN COMPLIANCE WITH THE STATUTORY
REQUIREMENT IMPOSED ON VESSELS WHICH ARE COMPELLED TO ANCHOR IN THE
FOG, THE "BOHEMIAN CLUB'S" FOG BELL WAS RUNG RAPIDLY FOR FIVE SECONDS
AT MINUTE INTERVALS; FN4  AND, IN ADDITION, LOOKOUTS WERE STATIONED ON
THE BRIDGE AND FORECASTLE.  DESPITE THESE PRECAUTIONS THE "LAURA
MAERSK," SOUTHBOUND AT WHAT BOTH COURTS AGREED WAS AN UNREASONABLE
SPEED, CRASHED INTO THE "BOHEMIAN CLUB" ABOUT ONE HOUR AND FIFTEEN
MINUTES AFTER SHE ANCHORED THE SECOND TIME. 

THE QUESTION FOR DECISION IS WHETHER THE CIRCUIT COURT CORRECTLY HELD
THAT THE ACTION OF THE "BOHEMIAN CLUB" IN ANCHORING IN THE CHANNEL AT
THE POINT OF THE COLLISION WAS UNLAWFUL UNDER SEC. 15 OF THE ACT OF
MARCH 3, 1899.  THE COMMAND OF SEC. 15 FORBIDDING VESSELS TO "ANCHOR
... IN NAVIGABLE CHANNELS" HAS UNIFORMLY BEEN INTERPRETED NOT TO BE
ABSOLUTE.  FN5  AN EXCEPTION TO THE DUTY REQUIRED BY THIS SECTION HAS
BEEN RECOGNIZED WHERE LITERAL COMPLIANCE WITH ITS TERMS WOULD CREATE A
DANGER TO NAVIGATION WHICH COULD BE AVOIDED OR REDUCED BY VIOLATION OF
ITS TERMS.  SEE THE SOCONY NO. 9, 74 F.2D 233, 234.  AS A PRACTICAL
MATTER AN OPPOSITE CONSTRUCTION WOULD DEFEAT THE PLAIN PURPOSE OF SEC.
15 TO MAINTAIN AND PROMOTE THE SAFETY OF NAVIGATION.  IT WOULD, IN
ADDITION, BE OUT OF HARMONY WITH ARTICLE 27 OF THE GENERAL NAVIGATION
RULES FOR HARBORS, RIVERS, AND INLAND WATERS, WHICH REQUIRES THAT "IN
OBEYING AND CONSTRUING THESE RULES DUE REGARD SHALL BE HAD TO ALL
DANGERS OF NAVIGATION AND COLLISION, AND TO ANY SPECIAL CIRCUMSTANCES
WHICH MAY RENDER A DEPARTURE FROM THE  ...  RULES NECESSARY IN ORDER TO
AVOID IMMEDIATE DANGER."  FN6 CF. THE CAYUGA, 14 WALL.  270, 275, 276. 
FURTHERMORE ARTICLE 15 OF THESE GENERAL RULES, ABOVE REFERRED TO,
CONTEMPLATED THAT UNDER SOME CIRCUMSTANCES VESSELS MAY BE COMPELLED TO
ANCHOR IN FOGGY WEATHER, AND PRESCRIBED SOUND SIGNALS WHICH VESSELS SO
ANCHORED MUST USE. 

IN THE INSTANT CASE THE CIRCUIT COURT OF APPEALS RECOGNIZED THAT THE
DUTY IMPOSED BY SEC. 15 IS NOT ABSOLUTE AND HELD THAT, UNDER THE
CIRCUMSTANCES, THE ACT OF THE "BOHEMIAN CLUB" IN ANCHORING ON THE EAST
SIDE OF THE CHANNEL WAS LAWFUL.  THE COURT FELT COMPELLED, HOWEVER, TO
HOLD THAT THE ACT OF ANCHORING ON THE WEST SIDE WAS UNLAWFUL UNDER SEC.
15.  WE THINK THIS SECTION DOES NOT REQUIRE SUCH A HOLDING.  WHETHER
ANCHORED ON THE EAST OR THE WEST SIDE OF THE CHANNEL THE "BOHEMIAN
CLUB" WOULD, WITHIN THE LITERAL TERMS OF THE SECTION, "OBSTRUCT THE
PASSAGE OF OTHER VESSELS."  THE DISTRICT COURT FOUND THAT WHEN THE FOG
ENVELOPED THE "BOHEMIAN CLUB" FOR THE SECOND TIME, "THE LEAST DANGEROUS
COURSE" WAS TO ANCHOR ON THE WEST SIDE OF THE CHANNEL; AND THIS FINDING
WAS NOT DISTURBED BY THE CIRCUIT COURT.  UNDER A PROPER CONSTRUCTION OF
SEC. 15, THEREFORE, THE CIRCUMSTANCES WHICH NECESSITATED BOTH THE FIRST
AND SECOND ANCHORINGS OF THE "BOHEMIAN CLUB" WERE EQUALLY SUFFICIENT TO
WARRANT AN EXCEPTION TO THE DUTY WHICH IT REQUIRES.  WHETHER THE ACT OF
LIFTING ANCHOR AND MOVING TO THE WESTERN PART OF THE CHANNEL TO AVOID
THE DANGER OF THE BUOY CONSTITUTED NEGLIGENCE IS A QUESTION WHOLLY
OUTSIDE SEC. 15.  SINCE THE HOLDING OF THE CIRCUIT COURT RESTED UPON AN
ERRONEOUS INTERPRETATION AND APPLICATION OF THIS SECTION, ITS JUDGMENT
MUST BE REVERSED.  REVERSED. 

FN1  30 STAT. 1152; U.S.C. TITLE 33, SEC. 409.  THE ACT IMPOSES PENAL
SANCTIONS FOR VIOLATIONS OF SEC. 15.  SEE SECS. 16-18.  HOWEVER THIS
APPLICABLE IN ORDINARY NEGLIGENCE ACTIONS FOR DAMAGES.  SEE OTTO MARMET
COAL CO. V. FIEGER-AUSTIN DREDGING CO., 259 F. 435; THE WILLIAM C.
ATWATER, 110 F.2D 644; THE SOUTHERN CROSS, 93 F.2D 297. 

FN2  SEE, FOR EXAMPLE, THE CITY OF NORFOLK, 266 F. 641; THE A.P.
SKIDMORE, 115 F. 791; THE SOCONY NO. 9, 74 F.2D 233. 

FN3  THE OPINION OF THE CIRCUIT COURT EMPHASIZES THE FACT THAT THE
"BOHEMIAN CLUB" DID NOT OBSTRUCT SOUTHBOUND TRAFFIC IN HER FIRST
POSITION BUT DID OBSTRUCT THIS TRAFFIC IN HER SECOND POSITION.  SINCE,
HOWEVER, THE "BOHEMIAN CLUB" OBSTRUCTED THE NORTHBOUND TRAFFIC IN HER
FIRST POSITION, THIS FACT COULD NOT BE MATERIAL UNLESS THERE WAS
EVIDENCE THAT HER MASTER SHOULD HAVE ANTICIPATED THAT THE VOLUME OF
SOUTHBOUND TRAFFIC WOULD BE HEAVIER THAN THAT OF NORTHBOUND TRAFFIC. 
NO FINDING ON THIS QUESTION IS DISCLOSED BY THE RECORD. 

FN4  ARTICLE 15, NAVIGATION RULES FOR HARBORS, RIVERS, AND INLAND
WATERS; 30 STAT. 99; U.S.C. TITLE 33, SEC. 191(2)(D). 

FN5  THE EUROPE, 190 F. 475, 479; THE CALDY, 153 F. 837, 840; SEE
ALSO THE CASES CITED IN NOTE 2, SUPRA. 

FN6  30 STAT. 102, U.S.C. TITLE 33, SEC. 212. 
..END :
























COMMISSIONER V. HEININGER, 320 U.S. 467 


NO. 63.  ARGUED NOVEMBER 12, 1943.  - DECIDED DECEMBER 20, 1943.  - 133
F.2D 567, AFFIRMED. 


1.  ATTORNEY'S FEES AND OTHER LEGAL EXPENSES, REASONABLE IN AMOUNT,
INCURRED BY A TAXPAYER (A LICENSED DENTIST ENGAGED IN SELLING
ARTIFICIAL DENTURES BY MAIL) IN RESISTING ISSUANCE BY THE POSTMASTER
GENERAL OF A "FRAUD ORDER" WHICH WOULD DESTROY HIS BUSINESS, AND IN
CONNECTION WITH SUBSEQUENT PROCEEDINGS ON JUDICIAL REVIEW, THE FINAL
RESULT OF WHICH WAS UNSUCCESSFUL FOR THE TAXPAYER, HELD, IN COMPUTING
INCOME TAX UNDER THE REVENUE ACTS OF 1936 AND 1938, DEDUCTIBLE UNDER
SEC. 23(A) AS "ORDINARY AND NECESSARY" EXPENSES OF THE BUSINESS.  P.
472. 

2.  THE POLICY OF 39 U.S.C. SECS. 259 AND 732, WHICH AUTHORIZE THE
POSTMASTER GENERAL TO ISSUE FRAUD ORDERS, WILL NOT BE FRUSTRATED BY
ALLOWANCE OF THE DEDUCTION.  P. 474. 

3.  THE BOARD OF TAX APPEALS WAS NOT REQUIRED TO REGARD AN
ADMINISTRATIVE FINDING OF GUILT UNDER 39 U.S.C. SECS. 259 AND 732 AS
BARRING THE DEDUCTION.  P. 475. 

4.  WHETHER AN EXPENDITURE IS DIRECTLY RELATED TO A BUSINESS AND
WHETHER IT IS ORDINARY AND NECESSARY ARE IN MOST INSTANCES QUESTIONS OF
FACT, THE DECISION OF WHICH BY THE BOARD OF TAX APPEALS IS BINDING ON
THE COURTS; BUT HERE THE BOARD DENIED THE CLAIMED DEDUCTION NOT BY AN
INDEPENDENT EXERCISE OF JUDGMENT BUT UPON THE ERRONEOUS VIEW THAT
DENIAL WAS REQUIRED AS A MATTER OF LAW.  P. 475. 

COMMISSIONER OF INTERNAL REVENUE V. HEININGER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 319 U.S. 740, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 47 B.T.A. 95, WHICH AFFIRMED THE COMMISSIONER'S
DETERMINATION OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER LAWYER'S FEES AND RELATED LEGAL EXPENSES
PAID BY RESPONDENT ARE DEDUCTIBLE FROM HIS GROSS INCOME UNDER SEC.
23(A) OF THE REVENUE ACTS OF 1936 AND 1938 AS ORDINARY AND NECESSARY
EXPENSES INCURRED IN CARRYING ON HIS BUSINESS.  FN1 

THE FEES AND EXPENSES WERE INCURRED UNDER THE FOLLOWING
CIRCUMSTANCES.  FROM 1926 THROUGH 1938 RESPONDENT, A LICENSED DENTIST
OF CHICAGO, ILLINOIS, MADE AND SOLD FALSE TEETH.  DURING THE TAX YEARS
1937 AND 1938 THIS WAS HIS PRINCIPAL BUSINESS ACTIVITY.  HIS WAS A MAIL
ORDER BUSINESS.  HIS PRODUCTS WERE ORDERED, DELIVERED, AND PAID FOR BY
MAIL.  CIRCULARS AND ADVERTISEMENTS SENT THROUGH THE MAIL PROCLAIMED
THE VIRTUES OF HIS GOODS IN LAVISH TERMS.  AT HEARINGS HELD BEFORE THE
SOLICITOR OF THE POST OFFICE DEPARTMENT PURSUANT TO U.S.C., TITLE 39,
SECS. 259 AND 732, RESPONDENT STRONGLY DEFENDED THE QUALITY OF HIS
WORKMANSHIP AND THE TRUTHFULNESS OF EVERY STATEMENT MADE IN HIS
ADVERTISEMENTS, BUT THE POSTMASTER GENERAL FOUND THAT SOME OF THE
STATEMENTS WERE MISLEADING AND SOME CLAIMED VIRTUES FOR HIS GOODS WHICH
DID NOT EXIST.  THEREUPON, ON FEBRUARY 19, 1938, A FRAUD ORDER WAS
ISSUED FORBIDDING THE POSTMASTER OF CHICAGO TO PAY ANY MONEY ORDERS
DRAWN TO RESPONDENT AND DIRECTING THAT ALL LETTERS ADDRESSED TO HIM BE
STAMPED "FRAUDULENT" AND RETURNED TO THE SENDERS.  SUCH A SWEEPING
DEPRIVATION OF ACCESS TO THE MAILS MEANT DESTRUCTION OF RESPONDENT'S
BUSINESS.  HE THEREFORE PROMPTLY SOUGHT AN INJUNCTION IN A UNITED
STATES DISTRICT COURT CONTENDING THAT THERE WAS NO PROPER EVIDENTIAL
BASIS FOR THE FRAUD ORDER.  ON REVIEW OF THE RECORD THAT COURT AGREED
WITH HIM AND ENJOINED ITS ENFORCEMENT.  THE COURT OF APPEALS DREW
DIFFERENT INFERENCES FROM THE RECORD, HELD THAT THE EVIDENCE DID
SUPPORT THE ORDER, AND REMANDED WITH INSTRUCTIONS TO DISSOLVE THE
INJUNCTION AND DISMISS THE BILL.  FARLEY V. HEININGER, 105 F.2D 79. 
RESPONDENT'S PETITION FOR CERTIORARI WAS DENIED BY THIS COURT ON
OCTOBER 9, 1969.  HEININGER V. FARLEY, 308 U.S. 587. 

DURING THE COURSE OF THE LITIGATION IN THE POST OFFICE DEPARTMENT AND
THE COURTS RESPONDENT INCURRED LAWYER'S FEES AND OTHER LEGAL EXPENSES
IN THE AMOUNT OF $36,600, ADMITTED TO BE REASONABLE.  IN FILING HIS TAX
RETURNS FOR THE YEARS 1937 AND 1938 HE CLAIMED THESE LITIGATION
EXPENSES AS PROPER DEDUCTIONS FROM HIS GROSS RECEIPTS OF $287,000 AND
$150,000.  THE COMMISSIONER DENIED THEM ON THE GROUND THAT THEY DID NOT
CONSTITUTE ORDINARY AND NECESSARY EXPENSES OF RESPONDENT'S BUSINESS. 
THE BOARD OF TAX APPEALS  FN2  AFFIRMED THE COMMISSIONER, 47 B.T.A. 95,
AND THE CIRCUIT COURT OF APPEALS REVERSED AND REMANDED.  133 F.2D 567. 
WE GRANTED CERTIORARI BECAUSE OF AN ALLEGED CONFLICT WITH THE DECISIONS
OF OTHER CIRCUITS.  FN3 

THERE CAN BE NO DOUBT THAT THE LEGAL EXPENSES OF RESPONDENT WERE
DIRECTLY CONNECTED WITH "CARRYING ON" HIS BUSINESS.  KORNHAUSER V.
UNITED STATES, 276 U.S. 145, 153; CF. APPEAL OF BACKER, 1 B.T.A. 214;
PANTAGES THEATRE CO. V. WELCH, 71 F.2D 68.  OUR ENQUIRY THEREFORE IS
LIMITED TO THE NARROW ISSUE OF WHETHER THESE EXPENSES WERE "ORDINARY
AND NECESSARY" WITHIN THE MEANING OF SEC. 23(A).  IN DETERMINING THIS
ISSUE WE DO NOT HAVE THE BENEFIT OF AN INTERPRETATIVE DEPARTMENTAL
REGULATION DEFINING THE APPLICATION OF THE WORDS "ORDINARY AND
NECESSARY" TO THE PARTICULAR EXPENSES HERE INVOLVED.  CF. TEXTILE MILLS
SECURITIES CORP. V. COMMISSIONER, 314 U.S. 326, 338.  NOR DO WE HAVE
THE BENEFIT OF THE INDEPENDENT JUDGMENT OF THE BOARD OF TAX APPEALS. 
IT DID NOT DENY THE DEDUCTIONS CLAIMED BY RESPONDENT UPON ITS OWN
INTERPRETATION OF THE WORDS "ORDINARY AND NECESSARY" AS APPLIED TO ITS
FINDINGS OF FACT.  CF. HORMEL V. HELVERING, 312 U.S. 552, 555, 556. 
THE INTERPRETATION IT ADOPTED WAS DECLARED TO BE REQUIRED BY THE SECOND
CIRCUIT COURT'S REVERSAL OF THE BOARD'S VIEW IN NATIONAL OUTDOOR
ADVERTISING BUREAU V. COMMISSIONER, 32 B.T.A. 1025.  FN4 

IT IS PLAIN THAT RESPONDENT'S LEGAL EXPENSES WERE BOTH "ORDINARY AND
NECESSARY" IF THOSE WORDS BE GIVEN THEIR COMMONLY ACCEPTED MEANING. 
FOR RESPONDENT TO EMPLOY A LAWYER TO DEFEND HIS BUSINESS FROM
THREATENED DESTRUCTION WAS "NORMAL"; IT WAS THE RESPONSE ORDINARILY TO
BE EXPECTED.  CF. DEPUTY V. DU PONT, 308 U.S. 488, 495; WELCH V.
HELVERING, 290 U.S. 111, 114; KORNHAUSER V. UNITED STATES, SUPRA.
SINCE THE RECORD CONTAINS NO SUGGESTION THAT THE DEFENSE WAS IN BAD
FAITH OR THAT THE ATTORNEY'S FEES WERE UNREASONABLE, THE EXPENSES
INCURRED IN DEFENDING THE BUSINESS CAN ALSO BE ASSUMED APPROPRIATE AND
HELPFUL, AND THEREFORE "NECESSARY."  CF. WELCH V. HELVERING, SUPRA,
113; KORNHAUSER V. UNITED STATES, SUPRA, 152.  THE GOVERNMENT DOES NOT
DENY THAT THE LITIGATION EXPENSES WOULD HAVE BEEN ORDINARY AND
NECESSARY HAD THE PROCEEDING FAILED TO CONVINCE THE POSTMASTER GENERAL
THAT RESPONDENT'S REPRESENTATIONS WERE FRAUDULENT.  FN5  ITS ARGUMENT
IS THAT DENTISTS IN THE MAIL ORDER BUSINESS DO NOT ORDINARILY AND
NECESSARILY ATTEMPT TO SELL FALSE TEETH BY FRAUDULENT REPRESENTATIONS
AS TO THEIR QUALITY; THAT RESPONDENT WAS FOUND BY THE POSTMASTER
GENERAL TO HAVE ATTEMPTED TO SELL HIS PRODUCTS IN THIS MANNER; AND THAT
THEREFORE THE LITIGATION EXPENSES, WHICH HE WOULD NOT HAVE INCURRED BUT
FOR THIS ATTEMPT, CANNOT THEMSELVES BE DEEMED ORDINARY AND NECESSARY. 
WE THINK THAT THIS REASONING, THOUGH PLAUSIBLE, IS UNSOUND IN THAT IT
FAILS TO TAKE INTO ACCOUNT THE CIRCUMSTANCES UNDER WHICH RESPONDENT
INCURRED THE LITIGATION EXPENSES.  CF. WELCH V. HELVERING, SUPRA, 113,
114.  UPON BEING SERVED WITH NOTICE OF THE PROPOSED FRAUD ORDER
RESPONDENT WAS CONFRONTED WITH A NEW BUSINESS PROBLEM WHICH INVOLVED
FAR MORE THAN THE RIGHT TO CONTINUE USING HIS OLD ADVERTISEMENTS.  HE
WAS PLACED IN A POSITION IN WHICH NOT ONLY HIS SELLING METHODS BUT ALSO
THE CONTINUED EXISTENCE OF HIS LAWFUL BUSINESS WERE THREATENED WITH
COMPLETE DESTRUCTION.  SO FAR AS APPEARS FROM THE RECORD RESPONDENT DID
NOT BELIEVE, NOR UNDER OUR SYSTEM OF JURISPRUDENCE WAS HE BOUND TO
BELIEVE, THAT A FRAUD ORDER DESTROYING HIS BUSINESS WAS JUSTIFIED BY
THE FACTS OR THE LAW.  THEREFORE HE DID NOT VOLUNTARILY ABANDON THE
BUSINESS BUT DEFENDED IT BY ALL AVAILABLE LEGAL MEANS.  TO SAY THAT
THIS COURSE OF CONDUCT AND THE EXPENSES WHICH IT INVOLVED WERE
EXTRAORDINARY OR UNNECESSARY WOULD BE TO IGNORE THE WAYS OF CONDUCT AND
THE FORMS OF SPEECH PREVAILING IN THE BUSINESS WORLD.  CF. WELCH V.
HELVERING, SUPRA, 115.  SURELY THE EXPENSES WERE NO LESS ORDINARY OR
NECESSARY THAN EXPENSES RESULTING FROM THE DEFENSE OF A DAMAGE SUIT
BASED ON MALPRACTICE, OR FRAUD, OR BREACH OF FIDUCIARY DUTY.  YET IN
THESE LATTER CASES LEGAL EXPENSES HAVE BEEN HELD DEDUCTIBLE WITHOUT
REGARD TO THE SUCCESS OF THE DEFENSE.  FN6 

THE BUREAU OF INTERNAL REVENUE, THE BOARD OF TAX APPEALS, AND THE
FEDERAL COURTS HAVE FROM TIME TO TIME, HOWEVER, NARROWED THE GENERALLY
ACCEPTED MEANING OF THE LANGUAGE USED IN SEC. 23(A) IN ORDER THAT TAX
DEDUCTION CONSEQUENCES MIGHT NOT FRUSTRATE SHARPLY DEFINED NATIONAL OR
STATE POLICIES PROSCRIBING PARTICULAR TYPES OF CONDUCT.  A REVIEW OF
THE SITUATIONS WHICH HAVE BEEN HELD TO BELONG IN THIS CATEGORY WOULD
SERVE NO USEFUL PURPOSE FOR EACH CASE SHOULD DEPEND UPON ITS PECULIAR
CIRCUMSTANCES.  FN7  A FEW EXAMPLES WILL SUFFICE TO ILLUSTRATE THE
PRINCIPLE INVOLVED.  WHERE A TAXPAYER HAS VIOLATED A FEDERAL OR A STATE
STATUTE AND INCURRED A FINE OR PENALTY HE HAS NOT BEEN PERMITTED A TAX
DEDUCTION FOR ITS PAYMENT.  FN8  SIMILARLY, ONE WHO HAS INCURRED
EXPENSES FOR CERTAIN TYPES OF LOBBYING AND POLITICAL PRESSURE
ACTIVITIES WITH A VIEW TO INFLUENCING FEDERAL LEGISLATION HAS BEEN
DENIED A DEDUCTION.  FN9  AND A TAXPAYER WHO HAS MADE PAYMENTS TO AN
INFLUENTIAL PARTY PRECINCT CAPTAIN IN ORDER TO OBTAIN A STATE PRINTING
CONTRACT HAS NOT BEEN ALLOWED TO DEDUCT THEIR AMOUNT FROM GROSS
INCOME.  FN10  IT HAS NEVER BEEN THOUGHT, HOWEVER, THAT THE MERE FACT
THAT AN EXPENDITURE BEARS A REMOTE RELATION TO AN ILLEGAL ACT MAKES IT
NON-DEDUCTIBLE.  THE LANGUAGE OF SEC. 23(A) CONTAINS NO EXPRESS
REFERENCE TO THE LAWFUL OR UNLAWFUL CHARACTER OF THE BUSINESS EXPENSES
WHICH ARE DECLARED TO BE DEDUCTIBLE.  AND THE BRIEF OF THE GOVERNMENT
IN THE INSTANT CASE EXPRESSLY DISCLAIMS ANY CONTENTION THAT THE PURPOSE
OF TAX LAWS IS TO PENALIZE ILLEGAL BUSINESS BY TAXING GROSS INSTEAD OF
NET INCOME.  CF. UNITED STATES V. SULLIVAN, 274 U.S. 259. 

IF THE RESPONDENT'S LITIGATION EXPENSES ARE TO BE DENIED DEDUCTION,
IT MUST BE BECAUSE ALLOWANCE OF THE DEDUCTION WOULD FRUSTRATE THE
SHARPLY DEFINED POLICIES OF 39 U.S.C. SECS. 259 AND 732 WHICH AUTHORIZE
THE POSTMASTER GENERAL TO ISSUE FRAUD ORDERS.  THE SINGLE POLICY OF
THESE SECTIONS IS TO PROTECT THE PUBLIC FROM FRAUDULENT PRACTICES
COMMITTED THROUGH THE USE OF THE MAILS.  IT IS NOT THEIR POLICY TO
IMPOSE PERSONAL PUNISHMENT ON VIOLATORS; SUCH PUNISHMENT IS PROVIDED BY
SEPARATE STATUTE,  FN11  AND CAN BE IMPOSED ONLY IN A JUDICIAL
PROCEEDING IN WHICH THE ACCUSED HAS THE BENEFIT OF CONSTITUTIONAL AND
STATUTORY SAFEGUARDS APPROPRIATE TO TRIAL FOR A CRIME.  NOR IS IT THEIR
POLICY TO DETER PERSONS ACCUSED OF VIOLATING THEIR TERMS FROM EMPLOYING
COUNSEL TO ASSIST IN PRESENTING A BONA FIDE DEFENSE TO A PROPOSED FRAUD
ORDER.  IT FOLLOWS THAT TO ALLOW THE DEDUCTION OF RESPONDENT'S
LITIGATION EXPENSES WOULD NOT FRUSTRATE THE POLICY OF THESE STATUTES;
AND TO DENY THE DEDUCTION WOULD ATTACH A SERIOUS PUNITIVE CONSEQUENCE
TO THE POSTMASTER GENERAL'S FINDING WHICH CONGRESS HAS NOT EXPRESSLY OR
IMPLIEDLY INDICATED SHOULD RESULT FROM SUCH A FINDING.  WE HOLD
THEREFORE THAT THE BOARD OF TAX APPEALS WAS NOT REQUIRED TO REGARD THE
ADMINISTRATIVE FINDING OF GUILT UNDER 39 U.S.C. SECS. 259 AND 732 AS A
RIGID CRITERION OF THE DEDUCTIBILITY OF RESPONDENT'S LITIGATION
EXPENSES. 

WHETHER AN EXPENDITURE IS DIRECTLY RELATED TO A BUSINESS AND WHETHER
IT IS ORDINARY AND NECESSARY ARE DOUBTLESS PURE QUESTIONS OF FACT IN
MOST INSTANCES.  EXCEPT WHERE A QUESTION OF LAW IS UNMISTAKABLY
INVOLVED A DECISION OF THE BOARD OF TAX APPEALS ON THESE ISSUES, HAVING
TAKEN INTO ACCOUNT THE PRESUMPTION SUPPORTING THE COMMISSIONER'S
RULING,  FN12  SHOULD NOT BE REVERSED BY THE FEDERAL APPELLATE COURTS. 
FN13  CAREFUL ADHERENCE TO THIS PRINCIPLE WILL RESULT IN A MORE ORDERLY
AND UNIFORM SYSTEM OF TAX DEDUCTIONS IN A FIELD NECESSARILY BESET BY
INNUMERABLE COMPLEXITIES.  CF. HORMEL V. HELVERING, SUPRA.  HOWEVER, AS
WE HAVE POINTED OUT ABOVE, THE BOARD OF TAX APPEALS HERE DENIED THE
CLAIMED DEDUCTION NOT BY AN INDEPENDENT EXERCISE OF JUDGMENT BUT UPON A
MISTAKEN CONVICTION THAT DENIAL WAS REQUIRED AS A MATTER OF LAW.  WE
THEREFORE AFFIRM THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS REVERSING
AND REMANDING THE CAUSE TO THE BOARD OF TAX APPEALS.  AFFIRMED. 

FN1  REVENUE ACT OF 1936, C. 690, 49 STAT. 1658. 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES.  - ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS,
..." 

IDENTICAL WITH SEC. 23(A) OF THE REVENUE ACT OF 1936. 

FN2  SECTION 504(A) OF THE REVENUE ACT OF 1942, C. 619, 56 STAT. 798,
957, U.S.C., TITLE 26, SEC. 1100 CHANGES THE NAME OF THE BOARD OF TAX
APPEALS TO "THE TAX COURT OF THE UNITED STATES." 

FN3  HELVERING V. NATIONAL OUTDOOR ADVERTISING BUREAU, 89 F.2D
878(C.C.A. 2); HELVERING V. SUPERIOR WINES & LIQUORS, 134 F.2D
373(C.C.A. 8). 

FN4  HELVERING V. NATIONAL OUTDOOR ADVERTISEMENT BUREAU, SUPRA, NOTE
3.  IN THAT CASE THE TAXPAYER HAD INCURRED LEGAL EXPENSES DEFENDING A
SUIT BEGUN BY THE UNITED STATES TO ENJOIN VIOLATIONS OF THE SHERMAN
ACT.  IT HAD SUCCESSFULLY DEFENDED PART OF THE CHARGES AGAINST IT, BUT
HAD AGREED TO THE ENTRY OF A CONSENT DECREE OF INJUNCTION AS TO THE
BALANCE.  THE BOARD HELD THAT ALL OF THE LEGAL EXPENSES WERE ORDINARY
AND WERE PROXIMATELY CONNECTED WITH THE TAXPAYER'S BUSINESS, AND THAT
TO ALLOW THEM AS DEDUCTIONS WOULD NOT BE AGAINST PUBLIC POLICY.  THE
CIRCUIT COURT REVERSED AS TO THAT PORTION OF THE EXPENSES ATTRIBUTABLE
TO THE CONSENT DECREE.  SEE ALSO HELVERING V. SUPERIOR WINES & LIQUORS,
SUPRA, NOTE 3, WHERE THE BOARD WAS REVERSED FOR ALLOWING A TAXPAYER IN
THE LIQUOR BUSINESS TO DEDUCT LAWYER'S FEES INCURRED IN CONNECTION WITH
A COMPROMISE OF LIABILITY FOR CIVIL PENALTIES ASSESSED FOR IMPROPER
BOOKKEEPING UNDER U.S.C., TITLE 26, SECS. 2857 ET SEQ. 

FN5  SEE NOTE 8, INFRA. 

FN6  MALPRACTICE:  C.B.V.-1, 226; FRAUD:  HELVERING V. HAMPTON, 79
F.2D 358; BREACH OF FIDUCIARY DUTY:  KEELER V. COMMISSIONER, 23 B.T.A.
467.  SEE ALSO THE EXAMPLES OF DEDUCTIBLE EXPENSES SET FORTH IN
KORNHAUSER V. UNITED STATES, 276 U.S. 145.    FN7  FOR A COLLECTION AND
ANALYSIS OF MANY OF THE CASES SEE NOTE (1941) 54 HARV. L. REV. 852; 4
MERTENS, LAW OF FEDERAL INCOME TAXATION (1942) SECS. 25.35-25.37,
25.102-25.105. 

FN8  GREAT NORTHERN RY. CO. V. COMMISSIONER, 40 F.2D 372; BONNIE
BROS. V. COMMISSIONER, 15 B.T.A. 1231; BURROUGHS BLDG. MATERIAL CO. V.
COMMISSIONER, 47 F.2D 178; APPEAL OF COLUMBUS BREAD CO., 4 B.T.A.
1126.  A TAXPAYER WHO HAS BEEN PROSECUTED UNDER A FEDERAL OR STATE
STATUTE AND CONVICTED OF A CRIME HAS NOT BEEN PERMITTED A TAX DEDUCTION
FOR HIS ATTORNEY'S FEE.  ESTATE OF THOMPSON V. COMMISSIONER, 21 B.T.A.
568; BURROUGHS BLDG. MATERIAL CO. V. COMMISSIONER, SUPRA.  BUT IF HE
HAS BEEN ACQUITTED, A DEDUCTION HAS BEEN ALLOWED.  COMMISSIONER V.
PEOPLE'S-PITTSBURGH TRUST CO., 60 F.2D 187; CF. CITRON-BYER CO. V.
COMMISSIONER, 21 B.T.A. 308; HEADLEY V. COMMISSIONER, 37 B.T.A. 738. 
CF. HELVERING V. SUPERIOR WINES & LIQUORS, SUPRA, NOTE 3. 

FN9  TEXTILE MILLS SECURITIES CORP. V. COMMISSIONER, 314 U.S. 326,
338.  CF. COMMISSIONER V. SUNSET SCAVENGER CO., 84 F.2D 453. 

FN10  RUGEL V. COMMISSIONER, 127 F.2D 393.  CF. KELLEY-DEMPSEY & CO.
V. COMMISSIONER, 31 B.T.A. 351, WHERE DEDUCTION WAS DENIED FOR THE
EXPENSE OF COMMERCIAL EXTORTION. 

FN11  CRIMINAL CODE, SEC. 215; 25 STAT. 873; 35 STAT. 1130; U.S.C.,
TITLE 18, SEC. 338. 

FN12  SEE WELCH V. HELVERING, 290 U.S. 111, 115. 

FN13 CF. HELVERING V. LAZARUS & CO., 308 U.S. 252, 255; DOBSON V.
COMMISSIONER, POST, P. 489. 
..END :















BRADY V. SOUTHERN RY. CO., 320 U.S. 476 


NO. 26.  ARGUED OCTOBER 19, 1943.  - DECIDED DECEMBER 20, 1943.  - 222
N.C. 367, 23 S.E.2D 334, AFFIRMED. 


1.  UPON REVIEW HERE OF A STATE COURT DECISION UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, THE QUESTION WHETHER THE EVIDENCE WAS
SUFFICIENT TO JUSTIFY SUBMISSION OF THE CASE TO THE JURY IS FOR THE
DETERMINATION OF THIS COURT.  P. 479. 

2.  ONLY BY A UNIFORM FEDERAL RULE AS TO THE SUFFICIENCY OF THE
EVIDENCE MAY LITIGANTS UNDER THE FEDERAL ACT RECEIVE SIMILAR TREATMENT
IN ALL STATES.  P. 479. 

3.  WHERE IN A SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT THE
EVIDENCE IS SUCH THAT A VERDICT FOR THE DEFENDANT IS THE ONLY
REASONABLE CONCLUSION, THE TRIAL COURT SHOULD DETERMINE THE PROCEEDING
BY NON-SUIT, DIRECTED VERDICT, OR OTHERWISE IN ACCORDANCE WITH THE
APPLICABLE PRACTICE WITHOUT SUBMISSION TO THE JURY, OR BY JUDGMENT NON
OBSTANTE VEREDICTO.  P. 479. 

4.  THE RULE AS TO WHEN A DIRECTED VERDICT IS PROPER IS APPLICABLE TO
QUESTIONS OF PROXIMATE CAUSE.  P. 483. 

5.  EVIDENCE IN THIS CASE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT
HELD INSUFFICIENT TO WARRANT SUBMISSION OF THE CASE TO THE JURY.  P.
480. 

(A)  THAT THE DERAILER WAS NOT EQUIPPED WITH A LIGHT WAS NOT EVIDENCE
OF NEGLIGENCE OF THE CARRIER.  P. 480. 

(B)  RELATIVE TO MISUSE OF THE DERAILER, THERE WAS NO EVIDENCE FROM
WHICH THE JURY COULD FIND NEGLIGENCE ON THE PART OF EMPLOYEES OF THE
CARRIER OTHER THAN THE DECEDENT.  P. 481. 

(C)  THE DEGREE OF CARE WHICH IT MUST EXERCISE DID NOT REQUIRE THE
CARRIER TO GUARD AGAINST A CAR STRIKING THE DERAILER FROM AN UNEXPECTED
DIRECTION.  P. 483. 

(D)  LIABILITY OF THE CARRIER CAN NOT BE PREDICATED ON THE EXISTENCE
OF THE DEFECTIVE RAIL, SINCE THE RAIL WAS SUITABLE FOR ORDINARY USE,
WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, AND MISUSE OF THE DERAILER
WAS NOT A DANGER REASONABLY TO BE ANTICIPATED.  P. 482. 

BRADY, ADMINISTRATRIX, V. SOUTHERN RAILWAY CO. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

CERTIORARI, 319 U.S. 777, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PLAINTIFF IN AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE AROSE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  FN1
CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA WAS SOUGHT AND
GRANTED TO CONSIDER THE RETROACTIVITY OF THE LAST AMENDMENT TO THE ACT
IN CONJUNCTION WITH THE CONTENTION THAT THERE WAS ERROR IN THE RULING
WHICH HELD THE CASE IMPROPERLY SUBMITTED TO THE JURY BY THE TRIAL
COURT.  319 U.S. 777.  OUR CONCLUSION MAKES IT UNNECESSARY TO CONSIDER
THE FORMER PROBLEM. 

THE DECEDENT, EARLE A. BRADY, WAS A BRAKEMAN.  AT THE TIME OF HIS
DEATH HE WAS EMPLOYED IN THAT CAPACITY IN INTERSTATE COMMERCE BY THE
RESPONDENT, SOUTHERN RAILWAY COMPANY.  THE ACCIDENT OCCURRED DURING A
SWITCHING MOVEMENT IN VIRGINIA.  THE FREIGHT TRAIN UPON WHICH DECEDENT
WAS ACTING AS BRAKEMAN CAME NORTH OVER A MAIN LINE AND PASSED A SWITCH
WHICH LED INTO A STORAGE TRACK RUNNING SOUTH PARALLEL TO AND ON THE
EAST OF THE MAIN LINE.  THERE WERE FOUR OTHER MEMBERS OF THE CREW - THE
ENGINEER, THE FIREMAN, THE FLAGMAN AND THE CONDUCTOR. 

AFTER THE ENTIRE TRAIN PASSED THE SWITCH, IT WAS STOPPED AND BACKED
INTO THE STORAGE TRACK TO PERMIT ANOTHER NORTH-BOUND TRAIN TO GO
THROUGH ON THE MAIN LINE AND TO PICK UP TWELVE CARS AT THE SOUTH END OF
THE STORAGE TRACK.  AFTER THE OTHER TRAIN PASSED, DECEDENT'S TRAIN,
WITHOUT PICKING UP THE STORAGE TRACK CARS, PULLED OUT ON TO THE MAIN
LINE, BACKED SOUTHWARDLY BEYOND A VEHICULAR GRADE CROSSING WHICH PASSED
OVER THE MAIN LINE AND THE STORAGE TRACK ABOUT ONE-EIGHTH OF A MILE
SOUTH OF THE SWITCHPOINTS, LEFT THE CABOOSE AND ALL THE CARS EXCEPT THE
FOUR NEAREST THE ENGINE ON THE MAIN LINE AND RETURNED NORTH FOR THE
PURPOSE OF AGAIN BACKING INTO THE STORAGE TRACK TO PICK UP THE STORAGE
TRACK CARS.  AFTER COUPLING THESE CARS ON TO THE FOUR NEXT TO THE
ENGINE, THE INTENDED MOVEMENT WAS TO PULL OUT AGAIN ON THE MAIN LINE,
BACK THE TRAIN SOUTHWARDLY TO THE CARS LEFT ON THE MAIN LINE, COUPLE UP
ALL THE CARS AND PROCEED ON THE JOURNEY TO THE NORTH. 

AS THE ENGINE AND FOUR CARS BACKED SLOWLY INTO THE STORAGE TRACK, THE
DECEDENT WAS RIDING THE SOUTHEASTERN STEP OF THE REAR CAR, A GONDOLA. 
IT WAS 6:30 A.M. ON CHRISTMAS MORNING AND SO DARK THE WORK WAS CARRIED
ON BY LANTERN SIGNALS.  THE TRUCKS HIT THE WRONG END OF A DERAILER,
LOCATED THREE OR FOUR CAR LENGTHS FROM THE SWITCH, WHICH WAS CLOSED SO
AS TO PREVENT CARS ON THE STORAGE TRACK FROM DRIFTING ACCIDENTALLY ONTO
THE MAIN LINE.  FN2  THE CONTACT DERAILED THE CARS AND THREW DECEDENT
TO INSTANT DEATH UNDER THE WHEELS. 

DAMAGES WERE SOUGHT FOR THE ALLEGED NEGLIGENCE OF THE CARRIER IN
FAILING TO FURNISH A REASONABLY SAFE PLACE TO WORK BY REASON OF DEFECTS
IN THE TRACK AND DERAILER AND, WE ASSUME SINCE IT WAS SUBMITTED TO THE
JURY AND PASSED UPON BY THE SUPREME COURT OF NORTH CAROLINA, 222 N.C.
AT 370, 23 S.E.2D 334, 337, BY THE ACT OF SOME OTHER EMPLOYEE IN
IMPROPERLY CLOSING THE DERAILER AFTER THE BEGINNING AND BEFORE THE
FATAL PHASE OF THE SWITCHING MOVEMENT.  FURTHER THERE WAS A CHARGE OF
NEGLIGENCE IN FAILING TO PROVIDE A LIGHT OR OTHER WARNING TO INDICATE
THE DANGEROUS POSITION OF THE DERAILER.  A JUDGMENT FOR $20,000 WAS
OBTAINED IN THE SUPERIOR COURT WHICH WAS REVERSED IN THE STATE SUPREME
COURT ON THE GROUND OF THE FAILURE OF THE EVIDENCE TO SUPPORT THE
JURY'S VERDICT. 

THERE IS THUS PRESENTED THE PROBLEM OF WHETHER SUFFICIENT EVIDENCE OF
NEGLIGENCE IS FURNISHED BY THE RECORD TO JUSTIFY THE SUBMISSION OF THE
CASE TO THE JURY.  IN EMPLOYERS' LIABILITY CASES, THIS QUESTION MUST BE
DETERMINED BY THIS COURT FINALLY.  THROUGH THE SUPREMACY CLAUSE OF THE
CONSTITUTION, ART. VI, WE ARE CHARGED WITH ASSURING THE ACT'S AUTHORITY
IN STATE COURTS.  ONLY BY A UNIFORM FEDERAL RULE AS TO THE NECESSARY
AMOUNT OF EVIDENCE MAY LITIGANTS UNDER THE FEDERAL ACT RECEIVE SIMILAR
TREATMENT IN ALL STATES.  WESTERN & ATLANTIC R. CO. V. HUGHES, 278 U.S.
496, 498; CHICAGO, M. & ST. P. RY. CO. V. COOGAN, 271 U.S. 472, 474. 
CF. UNITED GAS CO. V. TEXAS, 303 U.S. 123, 143.  IT IS TRUE THAT THIS
COURT HAS HELD THAT A STATE NEED NOT PROVIDE IN F.E.L.A. CASES ANY
TRIAL BY JURY ACCORDING TO THE REQUIREMENTS OF THE SEVENTH AMENDMENT. 
MINNEAPOLIS & ST. LOUIS R. CO. V. BOMBOLIS, 241 U.S. 211.  BUT WHEN A
STATE'S JURY SYSTEM REQUIRES THE COURT TO DETERMINE THE SUFFICIENCY OF
THE EVIDENCE TO SUPPORT A FINDING OF A FEDERAL RIGHT TO RECOVER, THE
CORRECTNESS OF ITS RULING IS A FEDERAL QUESTION.  THE WEIGHT OF THE
EVIDENCE UNDER THE EMPLOYERS' LIABILITY ACT MUST BE MORE THAN A
SCINTILLA BEFORE THE CASE MAY BE PROPERLY LEFT TO THE DISCRETION OF THE
TRIER OF FACT - IN THIS CASE, THE JURY.  WESTERN & ATLANTIC R. CO. V.
HUGHES, SUPRA; BALTIMORE & OHIO R. CO. V. GROEGER, 266 U.S. 521, 524. 
CF. GUNNING V. COOLEY, 281 U.S. 90, 94; COMMISSIONERS V. CLARK, 94 U.S.
278, 284.  WHEN THE EVIDENCE IS SUCH THAT WITHOUT WEIGHING THE
CREDIBILITY OF THE WITNESSES THERE CAN BE BUT ONE REASONABLE CONCLUSION
AS TO THE VERDICT, THE COURT SHOULD DETERMINE THE PROCEEDING BY NON
SUIT, DIRECTED VERDICT OR OTHERWISE IN ACCORDANCE WITH THE APPLICABLE
PRACTICE WITHOUT SUBMISSION TO THE JURY, OR BY JUDGMENT NOTWITHSTANDING
THE VERDICT.  BY SUCH DIRECTION OF THE TRIAL THE RESULT IS SAVED FROM
THE MISCHANCE OF SPECULATION OVER LEGALLY UNFOUNDED CLAIMS.  GALLOWAY
V. UNITED STATES, 319 U.S. 372; PENCE V. UNITED STATES, 316 U.S. 332;
BALTIMORE & OHIO R. CO. V. GROEGER, 266 U.S. 521, N. 1; ANDERSON V.
SMITH, 226 U.S. 439; COUGHRAN V. BIGELOW, 164 U.S. 301, 307; GUNNING V.
COOLEY, 281 U.S. 90, 93, NOTE; SEABOARD AIR LINE V. PADGETT, 236 U.S.
668, 673; PARKS V. ROSS, 11 HOW.  362, 373.  SEE IX WIGMORE ON EVIDENCE
(3D ED., 1940), SECS. 2494 ET SEQ. 

AN EXAMINATION OF THE PROVEN FACTS TO DETERMINE WHETHER THEY ARE
SUFFICIENT TO PERMIT A VERDICT BY THE JURY FOR THE DECEDENT'S ESTATE
BASED UPON REASON IS OF NO DOCTRINAL IMPORTANCE.  EVERY CASE VARIES. 
HOWEVER, THE SOUNDNESS OF THE JUDGMENT ENTERED IN THE STATE SUPREME
COURT DEPENDS UPON AN APPRAISAL OF THE EVIDENCE AND, AS TO THIS, THERE
IS A DIFFERENCE OF OPINION HERE.  OUR CONCLUSION IS THAT THERE IS
FAILURE TO SHOW IN THE RECORD ANY NEGLIGENCE OF THE CARRIER FROM NOT
PUTTING A LIGHT ON THE DERAILER OR BY THE ACTION OF OTHER EMPLOYEES
THAN DECEDENT IN CLOSING THE DERAILER. 

AS TO THE LIGHT, IT IS NOWHERE SHOWN THAT IT WAS CUSTOMARY OR EVEN
DESIRABLE IN THE OPERATION OF THIS OR ANY OTHER RAILROAD TO EQUIP
DERAILERS WITH SUCH A SIGNAL.  APPARENTLY LIGHTS ON A DERAILER ARE NOT
USED ON STORAGE TRACKS WHERE, AS AT THE PLACE OF THE ACCIDENT, AN
AUTOMATIC BLOCK SYSTEM FUNCTIONS. 

NOR DO WE FIND ANY EVIDENCE UPON WHICH A JURY COULD FIND NEGLIGENCE
OF OTHER EMPLOYEES OF THE CARRIER IN SETTING THE DERAILER WITHOUT
WARNING THE DECEDENT.  ON THE FIRST BACKWARD MOVEMENT INTO THE STORAGE
TRACK, THE ENGINEER AND FIREMAN WERE IN THE ENGINE CAB AT THE FRONT OF
THE TRAIN.  THERE IS NO EVIDENCE THAT EITHER LEFT THAT POSITION UNTIL
AFTER THE ACCIDENT.  AS THE ENTIRE TRAIN PASSED THE DERAILER THEN
WITHOUT INCIDENT AND AGAIN UPON ITS EXIT FROM THE STORAGE TRACK TO
RETURN TO THE MAIN LINE TO CUT THE TRAIN, THERE IS NO SUGGESTION THAT
THE DERAILER WAS NOT OPEN DURING THAT PART OF THE MOVEMENT.  AS
PETITIONER STATES, "DURING SWITCHING OPERATIONS IT IS THE USUAL RULE
AND CUSTOM FOR THE DERAILER TO BE KEPT OFF THE TRACK UNTIL THE
SWITCHING OPERATION IS COMPLETED."  THIS TIME THE SWITCH WAS CLOSED
BETWEEN THE MOVEMENT JUST REFERRED TO AND THE RETURN OF THE ENGINE AND
FOUR CARS TO THE STORAGE TRACK TO PICK UP THE CARS WAITING
TRANSPORTATION. 

THE EVIDENCE SHOWS WITHOUT CONTRARY INTIMATION THAT ON THE FIRST
MOVEMENT INTO THE STORAGE TRACK THE TWELVE CARS TO BE PICKED UP LATER
WERE SOUTH OF THE CROSSING AND THEREFORE MORE THAN AN EIGHTH OF A MILE
FROM THE SWITCH.  "WHEN THE CARS OR THE TRAIN WAS BACKED INTO THE PASS
TRACK TO LET THE NORTHBOUND TRAIN PASS, I (THE CONDUCTOR) THREW THE
SWITCH AND THE DERAILER AND THEN CAME BACK TO THE CROSSING TO AWAIT THE
OTHER MOVEMENT - TO KEEP FROM HITTING AN AUTOMOBILE."  "WHEN THAT
MOVEMENT WAS MADE - WHEN THEY BACKED OUT ON THE MAIN LINE - I WAS AT
THIS CROSSING, PROTECTING THE CROSSING.  IN THE BACKING UP MOVEMENT I
PROTECTED THE CROSSING AND THEN THEY CUT OUT THE FOUR CARS.  THE ENGINE
CAME OVER THE CROSSING; CUT OFF SOMEWHERE FIVE OR SIX CARS SOUTH OF THE
CROSSING.  I WAS NOT UP NORTH OF THE ENGINE WHEN THEY CUT THE CARS
OUT.  I WAS BACK UP HERE.  I RODE THE CABOOSE CAR BACK.  WHEN THEY CAME
ON DOWN I STAYED ON THE CABOOSE CAR AND MR. BRADY STAYED WHERE THE FOUR
OR FIVE CARS WERE.  HE CUT THOSE OUT.  I DIDN'T SEE HIM.  I WAS
CHECKING ON THOSE CARS.  I HAD LEFT THE CABOOSE.  I WAS NOT FAR FROM
THOSE TWELVE CARS SO I LEFT THE CABOOSE TO CHECK UP ON THE CARS.  WHILE
I WAS OVER THERE I HEARD THE BLAST OF THE LOCOMOTIVE ENGINE.  I DIDN'T
SEE HOW THE CARS WERE DERAILED - LEFT THE TRACK - NOR DID I SEE WHERE
MR. BRADY WAS AT THAT TIME."  OBVIOUSLY THE CONDUCTOR, IN ORDER TO GET
NEAR THE TWELVE STORED CARS, HOPPED THE CABOOSE AT THE CROSSING AS IT
BACKED UP ON THE MAIN LINE.  THE FLAGMAN TESTIFIED THAT THE CONDUCTOR
CAME BACK AND WATCHED THE CROSSING AFTER THE TRAIN FIRST BACKED INTO
THE STORAGE TRACK.  THE FLAGMAN ALSO TESTIFIED THAT ON LEAVING THE
CABOOSE AFTER THE SECOND TRAIN PASSED HE, THE FLAGMAN, WENT SOUTH TO
CHECK UP ON THE TWELVE STORED CARS AND NEVER TOUCHED EITHER THE SWITCH
OR THE DERAILER. 

THE UNDISPUTED TESTIMONY AS TO THE SIGNIFICANT MOVEMENTS OF THE
DECEDENT, BRADY, AS GIVEN BY THE ENGINEER, FOLLOWS:  "WHEN WE BACKED
INTO THE PASS OR STORAGE TRACK THE FIRST TIME AND GOT IN THERE TO WAIT
FOR NO. 30 TO GO BY, I SAW MR. BRADY CLOSE THE SWITCH AND THE
DERAILER.  MR. BRADY GAVE ME THE SIGNAL TO COME BACK OUT.  HE SET THE
DERAILER NOT TO DERAIL AND OPENED THE SWITCH FOR ME TO COME OUT AND I
CAME ON OUT.  THEN I PULLED OUT AND BACK DOWN SOUTH ON THE NORTHBOUND
TRACK BEYOND THE CROSSING.  MR. BRADY WAS ON THE FOUR CARS AND I SAW
HIM GET OFF THESE FOUR CARS.  HE RODE BACK NORTH ON THESE FOUR CARS
'TIL HE GOT NORTH OF THE SWITCH.  HE GOT OFF THE CAR AND THROWED THE
SWITCH AND GOT BACK AND SIGNALED ME BACK.  FROM THE TIME I CAME OUT OF
THE SWITCH UNTIL I CAME BACK IN THERE I NEVER SEEN ANYBODY ELSE IN
THERE, OTHER THAN MR. BRADY."  WITH THE RECORD EVIDENCE AS TO THE
ACTION OF THE CREW IN THIS CONDITION, IT APPEARS OBVIOUS THAT THERE IS
NOTHING TO SHOW NEGLIGENCE BY ANY OF THE OTHER SERVANTS OF THE
CARRIER. 

WE NOW TURN TO THE THIRD INSTANCE OF ALLEGED NEGLIGENCE.  THIS IS THE
EXISTENCE TO THE KNOWLEDGE OF THE CARRIER OF A RAIL, OPPOSITE THE
DERAILER, SO WORN ON TOP AND SIDES THAT IN THE OPINION OF QUALIFIED
EXPERTS IT PERMITTED THE THRUST OF THE EAST WHEELS OF THE CAR, AS THEY
ROSE OVER THE "WRONG END" OF THE DERAILER, TO FORCE THE FLANGE ON THE
WEST WHEELS OVER THE DEFECTIVE RAIL AND SO TO DERAIL THE CARS, WHEN NO
SUCH DERAILMENT WOULD HAVE OCCURRED, "NINE TIMES OUT OF TEN, IF THE
BEST TYPE" RAIL WAS IN USE.  THERE IS NO EVIDENCE OF THE UNSUITABILITY
OF THE RAIL FOR ORDINARY USE. 

SUCH EVIDENCE, WE ASSUME, WOULD JUSTIFY A FINDING FOR PETITIONERS, IF
THE DEFECTIVE RAIL WAS THE PROXIMATE CAUSE OF THE DERAILMENT AND THE
BACKING OF THE TRAIN IMPROPERLY OVER THE CLOSED DERAILER A DANGER
REASONABLY TO BE ANTICIPATED.  AS TO THE LIKELIHOOD OF CARS PASSING
OVER THE WRONG END OF DERAILERS, ONE WITNESS WITH TEN YEARS' EXPERIENCE
AS A BRAKEMAN TESTIFIED THAT HE RECALLED THREE OR FOUR INSTANCES. 
ANOTHER, THE SUPERINTENDENT OF THE RAILROAD WITH 22 YEARS' EXPERIENCE
SAID, "IT HAPPENS VERY FREQUENTLY.  I WOULD SAY YES, I HAVE SEEN IT 25
TO 50 TIMES."  THE RULE AS TO WHEN A DIRECTED VERDICT IS PROPER,
HERETOFORE REFERRED TO, IS APPLICABLE TO QUESTIONS OF PROXIMATE CAUSE. 
ATCHISON, T. & S.F. RY. CO. V. TOOPS, 281 U.S. 351; ST. LOUIS-SAN
FRANCISCO RY. CO. V. MILLS, 271 U.S. 344, 348; NEW YORK CENTRAL R. CO.
V. AMBROSE, 280 U.S. 486; BALTIMORE & OHIO R. CO. V. TINDALL, 47 F.2D
19; TEXAS GULF SULPHUR CO. V. PORTLAND GAS LIGHT CO., 57 F.2D 801.  CF.
STORY PARCHMENT CO. V. PATERSON CO., 282 U.S. 555, 566. 

THE SUPREME COURT OF NORTH CAROLINA WAS OF THE VIEW THAT STRIKING A
DERAILER FROM THE UNEXPECTED DIRECTION "WAS SO UNUSUAL, SO CONTRARY TO
THE PURPOSE" OF THE DERAILER THAT PROVISION TO GUARD AGAINST SUCH A
HAPPENING WAS BEYOND THE REQUIREMENT OF DUE CARE.  WITH THIS WE AGREE. 
BARE POSSIBILITY IS NOT SUFFICIENT.  MILWAUKEE & ST. PAUL RY. CO. V.
KELLOGG, 94 U.S. 469, AT 475: 

"BUT IT IS GENERALLY HELD, THAT, IN ORDER TO WARRANT A FINDING THAT
NEGLIGENCE, OR AN ACT NOT AMOUNTING TO WANTON WRONG, IS THE PROXIMATE
CAUSE OF AN INJURY, IT MUST APPEAR THAT THE INJURY WAS THE NATURAL AND
PROBABLE CONSEQUENCE OF THE NEGLIGENCE OR WRONGFUL ACT, AND THAT IT
OUGHT TO HAVE BEEN FORESEEN IN THE LIGHT OF THE ATTENDING
CIRCUMSTANCES." 

EVENTS TOO REMOTE TO REQUIRE REASONABLE PREVISION NEED NOT BE
ANTICIPATED.  IT WAS SO HELD AS TO AN INTERVENING EMBARGO AFTER A DELAY
IN TRANSIT WHICH WAS CAUSED BY NEGLIGENCE.  THE MALCOLM BAXTER, 277
U.S. 323, 334.  CF. NORTHERN RY. CO. V. PAGE, 274 U.S. 65, 74; ST.
LOUIS-SAN FRANCISCO RY. CO. V. MILLS, SUPRA.  LIABILITY ARISES FROM
NEGLIGENCE NOT FROM INJURY UNDER THIS ACT.  AND THAT NEGLIGENCE MUST BE
THE CAUSE OF THE INJURY.  TILLER V. ATLANTIC COAST LINE R. CO., 318
U.S. 54, 67.  HERE THE RAIL WAS SUFFICIENT FOR ORDINARY USE, AND THE
CARRIER WAS NOT OBLIGED TO FORESEE AND GUARD AGAINST MISUSE OF THE
DERAILER, EVEN THOUGH THE MISUSE OCCURRED AS OFTEN AS THE EVIDENCE
INDICATED.  IT WAS THE WRONGFUL USE OF THE DERAILER THAT IMMEDIATELY
OCCASIONED THE HARM.  DECEDENT HAD FIRST CLOSED AND THEN OPENED THE
DERAILER ON THE FIRST MOVEMENT.  HE SIGNALLED THE TRAIN TO BACK INTO
THE STORAGE TRACK JUST BEFORE THE FATAL ACCIDENT.  ALTHOUGH THIS MISUSE
OF THE DERAILER WAS AN ACT OF NEGLIGENCE, IT IS MERE SPECULATION AS TO
WHETHER THAT NEGLIGENCE IS CHARGEABLE TO THE DECEDENT OR ANOTHER. 
WITHOUT THIS UNEXPECTED OCCURRENCE, THE ADEQUACY OF THE RAIL VIS-A-VIS
A PROPERLY USED DERAILER IS UNQUESTIONED.  IT WAS ENTIRELY DISCONNECTED
FROM THE EARLIER ACT OF THE CARRIER IN PLACING THE WEAK RAIL IN THE
TRACK.  THE MERE FACT THAT WITH A SOUND RAIL THE ACCIDENT MIGHT NOT
HAVE HAPPENED IS NOT ENOUGH.  THE CARRIER'S NEGLIGENCE MUST BE A LINK
IN AN UNBROKEN CHAIN OF REASONABLY FORESEEABLE EVENTS.  FN3  AFFIRMED. 

FN1  35 STAT. 65, AS AMENDED; 36 STAT. 291; AND 53 STAT. 1404. 

FN2  A DERAILER IS A SMALL BUT HEAVY IRON DEVICE ATTACHED TO A RAIL
WHICH OPENS AND CLOSES OVER THE RAIL BY A LEVER, SO AS TO DERAIL OR
TURN OFF THE TRACK CARS APPROACHING THE CLOSED DERAILER FROM THE
EXPECTED DIRECTION.  WHEN THE DERAILER IS OPEN TRAINS MAY PASS IN
EITHER DIRECTION WITHOUT INTERFERENCE.  A TRAIN OR CAR APPROACHING A
CLOSED DERAILER FROM THE UNEXPECTED OR WRONG DIRECTION MAY SUCCESSFULLY
ROLL OVER THE OBSTRUCTION BUT MORE PROBABLY THEY, TOO, WOULD BE
DERAILED.  THE APPARATUS IS NOT DESIGNED WHEN CLOSED TO SAFELY PERMIT
THE PASSAGE OF CARS FROM THE UNEXPECTED DIRECTION. 

FN3  SEE E.G., THE SQUIB CASE, 2 W. BL. 892.  CF. 1 COOLEY ON TORTS
(4TH ED., 1932) SEC. 50, N. 25, AND COLLECTION OF CASES. 

MR. JUSTICE BLACK, DISSENTING: 

TWELVE NORTH CAROLINA CITIZENS WHO HEARD MANY WITNESSES AND SAW MANY
EXHIBITS FOUND ON THEIR OATHS THAT THE RAILROAD'S EMPLOYEES WERE
NEGLIGENT.  THE LOCAL TRIAL JUDGE SUSTAINED THEIR FINDING.  FOUR
MEMBERS OF THIS COURT AGREE WITH THE LOCAL TRIAL JUDGE THAT THE JURY'S
CONCLUSION WAS REASONABLE.  NEVERTHELESS FIVE MEMBERS OF THE COURT
PURPORT TO WEIGH ALL THE EVIDENCE OFFERED BY BOTH PARTIES TO THE SUIT,
AND HOLD THE CONCLUSION WAS UNREASONABLE.  TRULY, APPELLATE REVIEW OF
JURY VERDICTS BY APPLICATION OF A SUPPOSED NORM OF REASONABLENESS GIVES
RISE TO PUZZLING RESULTS.  FN1 

ALTHOUGH I DO NOT AGREE THAT THE "UNIFORM FEDERAL RULE" ON DIRECTED
VERDICTS ANNOUNCED BY THE COURT CORRECTLY STATES THE LAW, I PLACE MY
DISSENT ON THE GROUND THAT, WHATEVER RULE BE APPLIED, PETITIONER
SUFFICIENTLY ALLEGED AND PROVED AT LEAST TWO SEPARATE ACTS OF
NEGLIGENCE ATTRIBUTABLE TO THE RESPONDENT RAILROAD BUT FOR WHICH THE
DECEDENT BRADY WOULD PROBABLY HAVE ESCAPED DEATH.  THE FIRST WAS THE
ACT OF ONE OF RESPONDENT'S TRAINMEN IN NEGLIGENTLY CLOSING THE
DERAILER; THE SECOND, THE ACT OF RESPONDENT'S MAINTENANCE CREW IN
NEGLIGENTLY KEEPING A DEFECTIVE RAIL OPPOSITE THAT DERAILER.  PROOF OF
EITHER WAS SUFFICIENT IN ITSELF TO SUPPORT A JURY VERDICT AGAINST
RESPONDENT UNDER THE TERMS OF THE FEDERAL EMPLOYERS' LIABILITY ACT. 
FN2 

NEGLIGENCE IN CLOSING DERAILER.  A CONTRIBUTING CAUSE TO DECEDENT'S
DEATH WAS THAT THE DERAILER WAS IN A CLOSED POSITION AT THE TIME THE
ENGINEER BACKED THE ENGINE AND FOUR CARS INTO IT.  THAT THE DERAILER
SHOULD HAVE BEEN OPEN IS NOT DISPUTED.  THE EVIDENCE WAS SUFFICIENT TO
SHOW THAT THE EMPLOYEE WHO NEGLIGENTLY CLOSED THE DERAILER MUST HAVE
BEEN EITHER THE FLAGMAN, THE CONDUCTOR, OR THE DECEDENT.  THE FLAGMAN
EXPRESSLY DENIED THAT HE CLOSED THE DERAILER, BUT THE CONDUCTOR MADE NO
SUCH DENIAL.  PETITIONER, ALTHOUGH DEPRIVED OF DECEDENT'S TESTIMONY,
DID PRODUCE EVIDENCE FROM WHICH THE JURY COULD FIND THAT IT WAS NOT
DECEDENT WHO CLOSED IT.  TESTIMONY ESTABLISHED THAT DECEDENT KNEW OF
THE EXISTENCE AND LOCATION OF THE DERAILER, THAT HE WAS AN EXPERIENCED
BRAKEMAN, AND THAT HE WOULD BE AWARE OF THE DANGER OF RIDING A FREIGHT
CAR OVER A CLOSED DERAILER.  FROM THESE FACTS THE JURY COULD FIND THAT
DECEDENT THOUGHT THE DERAILER WAS OPEN SINCE HE WOULD NOT LIKELY HAVE
SIGNALLED THE TRAIN OVER A CLOSED DERAILER AT THE PERIL OF HIS OWN
SAFETY AND PROTECTION.  CF. ATCHISON, T. & S.F. RY. CO. V. TOOPS, 281
U.S. 351, 356.  A SIMILAR INFERENCE IS NOT JUSTIFIED AS REGARDS THE
FLAGMAN AND CONDUCTOR FOR THE EVIDENCE SHOWS THAT AT THE TIME OF THE
ACCIDENT BOTH WERE A HALF MILE AWAY AND THEREFORE WERE NOT IMPERILED BY
THE DECEDENT'S SIGNALLING BACK THE TRAIN AND WERE NOT IN A POSITION TO
HAVE PREVENTED THE SIGNAL.  FN3 

HAVING THUS BROUGHT FORTH EVIDENCE THAT ONE OF RESPONDENT'S EMPLOYEES
NEGLIGENTLY CLOSED THE DERAILER AND THAT DECEDENT WAS NOT THAT
EMPLOYEE, PETITIONER HAD PROVED A CASE FOR THE JURY.  I CANNOT AGREE
WITH THE VIEW APPARENTLY ADOPTED BY THE COURT THAT THE PETITIONER WAS
REQUIRED TO PIN THE NEGLIGENCE ON A PARTICULAR ONE OF DECEDENT'S FELLOW
EMPLOYEES.  NO SUCH BURDEN IS IMPOSED BY THE FEDERAL ACT.  IT PROVIDES
MERELY THAT A RAILROAD IS LIABLE "FOR  ...  DEATH RESULTING IN WHOLE OR
IN PART FROM THE NEGLIGENCE OF ANY OF THE  ...  EMPLOYEES."  FN4 

NEGLIGENCE IN KEEPING DEFECTIVE RAIL OPPOSITE DERAILER.  THERE WAS
EVIDENCE TO SHOW THAT THE RAIL OF THE PASS TRACK OPPOSITE THE DERAILER
HAD BEEN USED FOR TWENTY-SIX YEARS; THAT THE TOP OF THE RAIL WAS
DECAYED, RUSTY, BADLY WORN, AND THIN; THAT WITH BARE FINGERS METAL
SLIVERS COULD EASILY BE PICKED FROM BOTH SIDES OF THE RAIL; AND THAT
SOME OF THE CROSS TIES WERE OLD, NOT PROPERLY SUPPORTED BY BALLAST, AND
SLOPED TOWARD THE DEFECTIVE RAIL.  PETITIONER THEN OFFERED EXPERT
EVIDENCE, CONTRADICTED BY RESPONDENT'S EXPERT EVIDENCE, THAT THE
DERAILMENT WOULD NOT HAVE OCCURRED BUT FOR THIS DEFECTIVE RAIL.  THE
COURT DECLINES TO GIVE ANY EFFECT WHATEVER TO ALL OF THIS EVIDENCE ON
TWO STATED GROUNDS:  (1) THAT THE RAIL WAS SUITABLE FOR ORDINARY USE
AND THE BACKING OF THE TRAIN IMPROPERLY OVER THE CLOSED DERAILER WAS
NOT "A DANGER REASONABLY TO HAVE BEEN ANTICIPATED"; (2) THAT THE "WEAK
RAIL" WAS NOT THE "PROXIMATE CAUSE" OF THE DEATH. 

IT IS DIFFICULT TO IMAGINE HOW, EXCEPT BY SHEER GUESSING, OR BY
DRAWING UPON SOME UNDISCLOSED SUPERIOR FUND OF WISDOM, THE COURT
REACHES THE CONCLUSION THAT RESPONDENT NEED NOT HAVE FORESEEN THAT
TRAINS WOULD BE BACKED OVER THE WRONG END OF CLOSED DERAILERS.  THE
EVIDENCE OF RAILROAD MEN WHO HAD WORKED ON RAILROADS SHOWED IT WAS
FORESEEABLE.  DOUBTLESS JUDGES KNOW MORE ABOUT FORMAL LOGIC AND LEGAL
PRINCIPLES THAN DO BRAKEMEN, ENGINEERS, AND DIVISIONAL
SUPERINTENDENTS.  I AM NOT SO CERTAIN THAT THEY KNOW MORE ABOUT THE
DANGER OF KEEPING A DEFECTIVE RAIL IMMEDIATELY OPPOSITE A DERAILER. 
THE DIVISIONAL SUPERINTENDENT OF THE SOUTHERN RAILWAY COMPANY, PUT ON
THE STAND BY THE RESPONDENT, TESTIFIED THAT TRAINS BACKED OVER CLOSED
DERAILERS "VERY FREQUENTLY."  HE HIMSELF HAD SEEN IT HAPPEN "ON 25 TO
50 OCCASIONS."  AND UNDISPUTED EVIDENCE, INCLUDING PHOTOGRAPHS, SHOWED
THAT RESPONDENT HAD FORESEEN THIS LIKELIHOOD TO THE EXTENT THAT THE TOP
OF THE DERAILER HAD A SPECIAL GROOVE TO HOLD THE FLANGE OF A WHEEL AS
IT PASSED OVER THE BACK OF THE DERAILER.  THAT A TRAIN WOULD ORDINARILY
NOT BE BACKED OVER A CLOSED DERAILER EXCEPT FOR THE PERSONAL NEGLIGENCE
OF THE TRAIN CREW IS NOT DETERMINATIVE OF THE ISSUE OF FORESEEABILITY. 
THE STANDARD OF REASONABLE CONDUCT MAY REQUIRE THE DEFENDANT TO PROTECT
THE PLAINTIFF AGAINST "THAT OCCASIONAL NEGLIGENCE WHICH IS ONE OF THE
ORDINARY INCIDENTS OF HUMAN LIFE AND THEREFORE TO BE ANTICIPATED.  ...
"  FN5 AND THE MERE FACT THAT THE NEGLIGENCE OF THE RESPONDENT IN
PLACING THE WEAK RAIL IN THE TRACK OCCURRED SEVERAL YEARS BEFORE THE
ACCIDENT DOES NOT ESTABLISH THAT THE SUBSEQUENT INJURY WAS NOT
FORESEEABLE.  THE NEGLIGENT CONDUCT OF RESPONDENT NOT ONLY CONSISTED OF
"PLACING THE WEAK RAIL IN THE TRACK"; IT ALSO CONSISTED OF KEEPING THE
"WEAK RAIL" THERE. 

NOR IS IT EASY TO COMPREHEND WHY THE DEFECTIVE RAIL WAS NOT THE
"PROXIMATE CAUSE" OF THE INJURY.  IT WAS THE LAST "LINK IN AN UNBROKEN
CHAIN OF REASONABLY FORESEEABLE EVENTS" WHICH COST THE EMPLOYEE HIS
LIFE.  SURELY THIS RAIL WAS THE "PROXIMATE CAUSE" IF THOSE WORDS BE
USED TO MEAN AN EVENT WHICH CONTRIBUTES TO PRODUCE A RESULT, WHICH IS
THE MEANING CONGRESS INTENDED WHEN IT MADE RAILROADS LIABLE FOR THE
INJURY OR DEATH OF AN EMPLOYEE "DUE TO" OR "RESULTING IN WHOLE OR IN
PART FROM" THE RAILROAD'S NEGLIGENCE N6.  THE RECORD SHOWS THAT TWO
EXPERT WITNESSES WITH MANY YEARS OF RAILROAD EXPERIENCE TESTIFIED THAT
THE ACCIDENT WAS CAUSED BY THE DEFECTIVE RAIL.  THAT ONE OF THESE
WITNESSES ON CROSS-EXAMINATION STATED THE DERAILMENT WOULD NOT HAVE
OCCURRED "NINE TIMES OUT OF TEN" IF THERE HAD BEEN A SOUND RAIL HARDLY
JUSTIFIES A DIRECTED VERDICT AGAINST PETITIONER.  THE FACT OF CAUSATION
IS NO DIFFERENT FROM ANY OTHER FACT AND DOES NOT HAVE TO BE PROVED WITH
ABSOLUTE CERTAINTY; NINETY PER CENT CERTAINTY SHOULD SUFFICE TO MAKE IT
AN ISSUE FOR THE JURY.  THAT A SOUND RAIL WOULD HAVE GIVEN THE DECEASED
NINE CHANCES OUT OF TEN TO ESCAPE DEATH SHOULD BE ENOUGH TO GIVE HIS
FAMILY AND THE COMMUNITY THE PROTECTION WHICH THE ACT CONTEMPLATES. 

FN1  FOR AN ENLIGHTENING EXPOSITION OF THE UNCERTAINTIES GENERATED BY
EXCESSIVE JUDICIAL USE OF THE NORM OF REASONABLENESS, SEE JACKSON,
TRIAL PRACTICE IN ACCIDENT LITIGATION (1930), 15 CORNELL LAW QUARTERLY,
194 ET SEQ. IT WAS THE WRITER'S OPINION THAT THERE WAS "A PERSISTENT,
INSIDIOUS, AND PLAUSIBLE TENDENCY TOWARD UNCERTAINTY IN EVERYTHING THAT
LEGAL REASONING TOUCHES," AND THAT THIS TENDENCY WAS "EASIER TO
ILLUSTRATE THAN TO DESCRIBE."  HAD TODAY'S DECISION THEN BEEN
AVAILABLE, IT COULD WELL HAVE BEEN ADDED TO THE SEVERAL DECISIONS WHICH
WERE USED AS ILLUSTRATIONS.  LIKEWISE THE CRITICISM WHICH THE WRITER
DIRECTED AT THESE ILLUSTRATIVE DECISIONS IS EXACTLY APPLICABLE TO WHAT
THE COURT TODAY, BY APPLYING A LEGAL DOCTRINE MISNAMED "PROXIMATE
CAUSE," HAS DONE TO THE FEDERAL EMPLOYERS' LIABILITY ACT.  FOR WHAT IT
HAS DONE IS TO CHOOSE "BETWEEN TWO LINES OF PUBLIC POLICY.  IT COULD
NOT THINK IN THE SIMPLE TERMS OF THE STATUTORY COMMAND; IT REVERTED TO
THE COMPLEX LEGAL REASONING INVOLVING A COMBINATION OF PRINCIPLES AND
DEPENDING UPON MULTIPLIED CONDITIONS WHICH THE STATUTE TRIED TO
SUPERSEDE." 

FN2  "EVERY COMMON CARRIER BY RAILROAD WHILE ENGAGING IN COMMERCE
BETWEEN ANY OF THE SEVERAL STATES OR TERRITORIES  ...  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 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,  ...  OR OTHER EQUIPMENT."  35
STAT. 65, AS AMENDED; 53 STAT. 1404; U.S.C., TITLE 45, SEC. 51. 

FN3  UNCONTRADICTED TESTIMONY SHOWED THAT BOTH THE FLAGMAN AND THE
CONDUCTOR WERE UNDER THE DUTY TO OPERATE THE DERAILER IN SWITCHING
OPERATIONS WHEN THE TRAIN WAS LONG.  HERE THE TRAIN WAS FOUR HUNDRED
YARDS IN LENGTH.  THE CONDUCTOR ADMITTED THAT HE HAD OPERATED THE
DERAILER ONCE DURING THE SWITCHING OPERATION, AND THAT HE HAD BEEN IN A
PLACE WHERE HE COULD HAVE CLOSED IT BEFORE THE ENGINE AND FOUR CARS
BACKED INTO IT.  NOT ONE OF THE CONDUCTOR'S FELLOW EMPLOYEES TESTIFIED
AS TO WHAT THE CONDUCTOR WAS DOING AT THE TIME WHEN THE DERAILER MUST
HAVE BEEN CLOSED. 

FN4  SEE NOTE 2, SUPRA. 

FN5  RESTATEMENT OF TORTS SEC. 302, COMMENT L. SEE ALSO PROSSER ON
TORTS (1941) SEC. 37, P. 243. 

FN6  SEE NOTE 2, SUPRA. 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, AND MR. JUSTICE RUTLEDGE
CONCUR IN THIS OPINION. 
..END :






DOBSON V. COMMISSIONER, 320 U.S. 489 


ARGUED NOVEMBER 8, 1943.  - DECIDED DECEMBER 20, 1943.  - 133 F.2D 732,
AFFIRMED IN PART - REVERSED IN PART. 


1.  THE TAX COURT WAS NOT REQUIRED BY ANY STATUTE, APPLICABLE
REGULATION, OR PRINCIPLE OF LAW TO TREAT AS TAXABLE INCOME OF THE
TAXPAYER A RECOVERY - IN RESPECT OF A LOSS (ON A SALE OF STOCK)
DEDUCTED AND ALLOWED ON RETURNS FOR AN EARLIER YEAR, ADJUSTMENT OF THE
TAX LIABILITY FOR WHICH WAS BARRED BY LIMITATIONS - WHERE IT FOUND
THAT, VIEWING AS A WHOLE THE TRANSACTIONS OUT OF WHICH THE RECOVERY
AROSE, THE TAXPAYER HAD REALIZED NO ECONOMIC GAIN AND HAD DERIVED NO
TAX BENEFIT FROM THE LOSS DEDUCTION; AND THE CIRCUIT COURT OF APPEALS
ON REVIEW WAS WITHOUT POWER TO ORDER THAT THE RECOVERY BE TREATED AS
TAXABLE INCOME RATHER THAN AS A RETURN OF CAPITAL.  P. 506. 

2.  WHERE NO CONSTITUTIONAL QUESTION IS INVOLVED, AND IN THE ABSENCE
OF A CONTROLLING STATUTE OR REGULATION, A DETERMINATION OF THE TAX
COURT AS TO WHETHER PARTICULAR TRANSACTIONS ARE INTEGRATED OR SEPARATED
FOR TAX PURPOSES IS NO MORE REVIEWABLE THAN ANY OTHER QUESTION OF
FACT.  P. 502. 

3.  WHEN THE REVIEWING COURT CAN NOT SEPARATE THE ELEMENTS OF A
DECISION SO AS TO IDENTIFY A CLEAR-CUT MISTAKE OF LAW, THE DECISION OF
THE TAX COURT MUST STAND.  P. 502. 

4.  IN DETERMINING QUESTIONS OF LAW, COURTS MAY PROPERLY ATTACH
WEIGHT TO DECISIONS OF SUCH QUESTIONS BY AN ADMINISTRATIVE BODY HAVING
SPECIAL COMPETENCE TO DEAL WITH THE SUBJECT MATTER; AND THOUGH
DECISIONS OF THE TAX COURT MAY NOT BE BINDING PRECEDENTS FOR COURTS
DEALING WITH SIMILAR PROBLEMS, UNIFORM ADMINISTRATION WOULD BE PROMOTED
BY CONFORMING TO THEM WHERE POSSIBLE.  P. 502. 

DOBSON V. COMMISSIONER OF INTERNAL REVENUE. 

NO. 44.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT.* 

*TOGETHER WITH NO. 45, DOBSON V. COMMISSIONER OF INTERNAL REVENUE,
NO. 46, ESTATE OF COLLINS V. COMMISSIONER OF INTERNAL REVENUE, AND NO.
47, HARWICK V. COMMISSIONER OF INTERNAL REVENUE, ALSO ON WRITS OF
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 319 U.S. 739-740, TO REVIEW A JUDGMENT WHICH, ON REVIEW
OF DECISIONS OF THE BOARD OF TAX APPEALS REDETERMINING DEFICIENCIES IN
INCOME TAX, IN NO. 47 AFFIRMED AND IN NOS. 44-46 REVERSED.  SEE 46
B.T.A. 765, 770. 

THESE FOUR CASES WERE CONSOLIDATED IN THE COURT OF APPEALS.  THE
FACTS OF ONE WILL DEFINE THE ISSUE PRESENT IN ALL. 

THE TAXPAYER, COLLINS, IN 1929 PURCHASED 300 SHARES OF STOCK OF THE
NATIONAL CITY BANK OF NEW YORK WHICH CARRIED CERTAIN BENEFICIAL
INTERESTS IN STOCK OF THE NATIONAL CITY COMPANY.  THE LATTER COMPANY
WAS THE SELLER AND THE TRANSACTION OCCURRED IN MINNESOTA.  IN 1930
COLLINS SOLD 100 SHARES, SUSTAINING A DEDUCTIBLE LOSS OF $41,600.80,
WHICH WAS CLAIMED ON HIS RETURN FOR THAT YEAR AND ALLOWED.  IN 1931 HE
SOLD ANOTHER 100 SHARES, SUSTAINING A DEDUCTIBLE LOSS OF $28,163.78,
WHICH WAS CLAIMED IN HIS RETURN AND ALLOWED.  THE REMAINING 100 SHARES
HE RETAINED.  HE REGARDED THE PURCHASES AND SALES AS CLOSED AND
COMPLETED TRANSACTIONS. 

IN 1936 COLLINS LEARNED THAT THE STOCK HAD NOT BEEN REGISTERED IN
COMPLIANCE WITH THE MINNESOTA BLUE SKY LAWS AND LEARNED OF FACTS
INDICATING THAT HE HAD BEEN INDUCED TO PURCHASE BY FRAUDULENT
REPRESENTATIONS.  HE FILED SUIT AGAINST THE SELLER ALLEGING FRAUD AND
FAILURE TO REGISTER.  HE ASKED RESCISSION OF THE ENTIRE TRANSACTION AND
OFFERED TO RETURN THE PROCEEDS OF THE STOCK, OR AN EQUIVALENT NUMBER OF
SHARES PLUS SUCH INTEREST AND DIVIDENDS AS HE HAD RECEIVED.  IN 1939
THE SUIT WAS SETTLED, ON A BASIS WHICH GAVE HIM A NET RECOVERY OF
$45,150.63, OF WHICH $23,296.45 WAS ALLOCABLE TO THE STOCK SOLD IN 1930
AND $6,454.18 ALLOCABLE TO THAT SOLD IN 1931.  IN HIS RETURN FOR 1939
HE DID NOT REPORT AS INCOME ANY PART OF THE RECOVERY.  THROUGHOUT THAT
YEAR ADJUSTMENT OF HIS 1930 AND 1931 TAX LIABILITY WAS BARRED BY THE
STATUTE OF LIMITATIONS. 

THE COMMISSIONER ADJUSTED COLLINS' 1939 GROSS INCOME BY ADDING AS
ORDINARY GAIN THE RECOVERY ATTRIBUTABLE TO THE SHARES SOLD, BUT NOT
THAT PORTION OF IT ATTRIBUTABLE TO THE SHARES UNSOLD.  THE RECOVERY
UPON THE SHARES SOLD WAS NOT, HOWEVER, SUFFICIENT TO MAKE GOOD THE
TAXPAYER'S ORIGINAL INVESTMENT IN THEM.  AND IF THE AMOUNTS RECOVERED
HAD BEEN ADDED TO THE PROCEEDS RECEIVED IN 1930 AND 1931 THEY WOULD NOT
HAVE ALTERED COLLINS' INCOME TAX LIABILITY FOR THOSE YEARS, FOR EVEN IF
THE ENTIRE DEDUCTIONS CLAIMED ON ACCOUNT OF THESE LOSSES HAD BEEN
DISALLOWED, THE RETURNS WOULD STILL HAVE SHOWN NET LOSSES. 

COLLINS SOUGHT A REDETERMINATION BY THE BOARD OF TAX APPEALS, NOW THE
TAX COURT.  HE CONTENDED THAT THE RECOVERY OF 1939 WAS IN THE NATURE OF
A RETURN OF CAPITAL FROM WHICH HE REALIZED NO GAIN AND NO INCOME EITHER
ACTUALLY OR CONSTRUCTIVELY, AND THAT HE HAD RECEIVED NO TAX BENEFIT
FROM THE LOSS DEDUCTIONS.  IN THE ALTERNATIVE HE ARGUED THAT IF THE
RECOVERY COULD BE CALLED INCOME AT ALL IT WAS TAXABLE AS CAPITAL GAIN. 
THE COMMISSIONER INSISTED THAT THE ENTIRE RECOVERY WAS TAXABLE AS
ORDINARY GAIN AND THAT IT WAS IMMATERIAL WHETHER THE TAXPAYER HAD
OBTAINED ANY TAX BENEFITS FROM THE LOSS DEDUCTION REPORTED IN PRIOR
YEARS.  THE TAX COURT SUSTAINED THE TAXPAYER'S CONTENTION THAT HE HAD
REALIZED NO TAXABLE GAIN FROM THE RECOVERY.  FN1 

THE COURT OF APPEALS CONCLUDED THAT THE "TAX BENEFIT THEORY" APPLIED
BY THE TAX COURT "SEEMS TO BE AN INJECTION INTO THE LAW OF AN EQUITABLE
PRINCIPLE, FOUND NEITHER IN THE STATUTES NOR IN THE REGULATIONS." 
BECAUSE THE TAX COURT'S REASONING WAS NOT EMBODIED IN ANY STATUTORY
PRECEPT, THE COURT HELD THAT THE TAX COURT WAS NOT AUTHORIZED TO RESORT
TO IT IN DETERMINING WHETHER THE RECOVERY SHOULD BE TREATED AS INCOME
OR RETURN OF CAPITAL.  IT HELD AS MATTER OF LAW THAT THE RECOVERIES
WERE NEITHER RETURN OF CAPITAL NOR CAPITAL GAIN, BUT WERE ORDINARY
INCOME IN THE YEAR RECEIVED.  FN2  QUESTIONS IMPORTANT TO TAX
ADMINISTRATION WERE INVOLVED, CONFLICT WAS SAID TO EXIST, AND WE
GRANTED CERTIORARI.  FN3 

IT IS CONTENDED THAT THE APPLICABLE STATUTES AND REGULATIONS PROPERLY
INTERPRETED FORBID THE METHOD OF CALCULATION FOLLOWED BY THE TAX
COURT.  IF THIS WERE TRUE, THE TAX COURT'S DECISION WOULD NOT BE "IN
ACCORDANCE WITH LAW" AND THE COURT WOULD BE EMPOWERED TO MODIFY OR
REVERSE IT. FN4 WHETHER IT IS TRUE IS A CLEAR-CUT QUESTION OF LAW AND
IS FOR DECISION BY THE COURTS. 

THE COURT BELOW THOUGHT THAT THE TAX COURT'S DECISION "EVADED OR
IGNORED" THE STATUTE OF LIMITATION, THE PROVISION OF THE REGULATIONS
THAT "EXPENSES, LIABILITIES, OR DEFICIT OF ONE YEAR CANNOT BE USED TO
REDUCE THE INCOME OF A SUBSEQUENT YEAR,"  FN5  AND THE PRINCIPLE THAT
RECOGNITION OF A CAPITAL LOSS PRESUPPOSES SOME EVENT OF "REALIZATION"
WHICH CLOSES THE TRANSACTION FOR GOOD.  WE DO NOT AGREE.  THE TAX COURT
HAS NOT ATTEMPTED TO REVISE LIABILITY FOR EARLIER YEARS CLOSED BY THE
STATUTE OF LIMITATION, NOR USED ANY EXPENSE, LIABILITY, OR DEFICIT OF A
PRIOR YEAR TO REDUCE THE INCOME OF A SUBSEQUENT YEAR.  IT WENT TO PRIOR
YEARS ONLY TO DETERMINE THE NATURE OF THE RECOVERY, WHETHER RETURN OF
CAPITAL OR INCOME.  NOR HAS THE TAX COURT REOPENED ANY CLOSED
TRANSACTION; IT WAS COMPELLED TO DETERMINE THE VERY QUESTION WHETHER
SUCH A RECOGNITION OF LOSS HAD IN FACT TAKEN PLACE IN THE PRIOR YEAR AS
WOULD NECESSITATE CALLING THE RECOVERY IN THE TAXABLE YEAR INCOME
RATHER THAN RETURN OF CAPITAL. 

THE 1928 ACT PROVIDES THAT "THE BOARD IN REDETERMINING A DEFICIENCY
IN RESPECT OF ANY TAXABLE YEAR SHALL CONSIDER SUCH FACTS WITH RELATION
TO THE TAXES FOR OTHER TAXABLE YEARS AS MAY BE NECESSARY CORRECTLY TO
REDETERMINE THE AMOUNT OF SUCH DEFICIENCY.  ..."  FN6  THE TAX COURT'S
INQUIRY AS TO PAST YEARS WAS AUTHORIZED IF "NECESSARY CORRECTLY TO
REDETERMINE" THE DEFICIENCY.  THE TAX COURT THOUGHT IN THIS CASE THAT
IT WAS NECESSARY; THE COURT OF APPEALS APPARENTLY THOUGHT IT WAS NOT. 
THIS PRECIPITATES A QUESTION NOT RAISED BY EITHER COUNSEL AS TO WHETHER
THE COURT IS EMPOWERED TO REVISE THE TAX COURT'S DECISION AS "NOT IN
ACCORDANCE WITH LAW" BECAUSE OF SUCH A DIFFERENCE OF OPINION. 

WITH THE 1926 REVENUE ACT, CONGRESS PROMULGATED, AND AT ALL TIMES
SINCE HAS MAINTAINED, A LIMITATION ON THE POWER OF COURTS TO REVIEW
BOARD OF TAX APPEALS (NOW THE TAX COURT) DETERMINATIONS.  "...  SUCH
COURTS SHALL HAVE POWER TO AFFIRM OR, IF THE DECISION OF THE BOARD IS
NOT IN ACCORDANCE WITH LAW, TO MODIFY OR TO REVERSE THE DECISION OF THE
BOARD  ..."  FN7  HOWEVER, EVEN A CASUAL SURVEY OF DECISIONS IN TAX
CASES, NOW OVER 5,000 IN NUMBER, WILL DEMONSTRATE THAT COURTS,
INCLUDING THIS COURT, HAVE NOT PAID THE SCRUPULOUS DEFERENCE TO THE TAX
LAWS' ADMONITIONS OF FINALITY WHICH THEY HAVE TO SIMILAR PROVISIONS IN
STATUTES RELATING TO OTHER TRIBUNALS.  FN8 AFTER THIRTY YEARS OF INCOME
TAX HISTORY THE VOLUME OF TAX LITIGATION NECESSARY MERELY FOR STATUTORY
INTERPRETATION WOULD SEEM DUE TO SUBSIDE.  THAT IT SHOWS NO SIGN OF
DIMINUTION SUGGESTS THAT MANY DECISIONS HAVE NO VALUE AS PRECEDENTS
BECAUSE THEY DETERMINE ONLY FACT QUESTIONS PECULIAR TO PARTICULAR
CASES.  OF COURSE FREQUENT AMENDMENT OF THE STATUTE CAUSES CONTINUING
UNCERTAINTY AND LITIGATION, BUT ALL TOO OFTEN AMENDMENTS ARE THEMSELVES
MADE NECESSARY BY COURT DECISIONS.  INCREASE OF POTENTIAL TAX
LITIGATION DUE TO MORE TAXPAYERS AND HIGHER RATES LENDS NEW IMPORTANCE
TO OBSERVANCE OF STATUTORY LIMITATIONS ON REVIEW OF TAX DECISIONS.  NO
OTHER BRANCH OF THE LAW TOUCHES HUMAN ACTIVITIES AT SO MANY POINTS.  IT
CAN NEVER BE MADE SIMPLE, BUT WE CAN TRY TO AVOID MAKING IT NEEDLESSLY
COMPLEX. 

IT IS MORE DIFFICULT TO MAINTAIN SHARP SEPARATION OF COURT AND
ADMINISTRATIVE FUNCTIONS IN TAX THAN IN OTHER FIELDS.  ONE REASON IS
THAT TAX CASES REACH CIRCUIT COURTS OF APPEALS FROM DIFFERENT SOURCES
AND DO NOT ALWAYS CALL FOR OBSERVANCE OF ANY ADMINISTRATIVE SPHERE OF
DECISION.  QUESTIONS WHICH THE TAX COURT CONSIDERS AT THE INSTANCE OF
ONE TAXPAYER MAY BE CONSIDERED BY MANY DISTRICT COURTS AT THE INSTANCE
OF OTHERS. 

THE TUCKER ACT AUTHORIZES DISTRICT COURTS, SITTING WITHOUT JURY AS
COURTS OF CLAIMS, TO HEAR SUITS FOR RECOVERY OF TAXES ALLEGED TO HAVE
BEEN "ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED."  FN9  DISTRICT
COURTS ALSO ENTERTAIN COMMON LAW ACTIONS AGAINST COLLECTORS TO RECOVER
TAXES ERRONEOUSLY DEMANDED AND PAID UNDER PROTEST.  TRIAL MAY BE BY
JURY, BUT WAIVER OF JURY IS AUTHORIZED  FN10  AND IN TAX CASES JURY
FREQUENTLY IS WAIVED.  IN SUCH CASES THE FINDINGS OF THE COURT MAY BE
EITHER SPECIAL OR GENERAL.  THE SCOPE OF REVIEW ON APPEAL MAY BE
AFFECTED BY THE NATURE OF THE PROCEEDING, THE KIND OF FINDINGS, AND
WHETHER THE JURY WAS WAIVED UNDER A PARTICULAR STATUTORY AUTHORIZATION
OR INDEPENDENTLY OF IT.  FN11  THE MULTIPLICITY AND COMPLEXITY OF RULES
IS SUCH THAT OFTEN IT IS EASIER TO REVIEW THE WHOLE CASE ON THE MERITS
THAN TO DECIDE WHAT PART OF IT IS REVIEWABLE AND UNDER WHAT RULE.  THE
REPORTS CONTAIN MANY CASES IN WHICH THE QUESTION IS PASSED OVER WITHOUT
MENTION. 

ANOTHER REASON WHY COURTS HAVE DEFERRED LESS TO THE TAX COURT THAN TO
OTHER ADMINISTRATIVE TRIBUNALS IS THE MANNER IN WHICH TAX COURT
FINALITY WAS INTRODUCED INTO THE LAW. 

THE COURTS HAVE RATHER STRICTLY OBSERVED LIMITATIONS ON THEIR
REVIEWING POWERS WHERE THE LIMITATION CAME INTO EXISTENCE
SIMULTANEOUSLY WITH THEIR DUTY TO REVIEW ADMINISTRATIVE ACTION IN NEW
FIELDS OF REGULATION.  BUT THIS WAS NOT THE HISTORY OF THE TAX LAW. 
OUR MODERN INCOME TAX EXPERIENCE BEGAN WITH THE REVENUE ACT OF 1913. 
THE WORLD WAR SOON BROUGHT HIGH RATES.  THE LAW WAS AN INNOVATION, ITS
CONSTITUTIONAL ASPECTS WERE STILL BEING DEBATED, INTERPRETATION WAS
JUST BEGINNING, AND ADMINISTRATORS WERE INEXPERIENCED.  THE ACT
PROVIDED NO ADMINISTRATIVE REVIEW OF THE COMMISSIONER'S
DETERMINATIONS.  IT DID NOT ALTER THE PROCEDURE FOLLOWED UNDER THE
CIVIL WAR INCOME TAX BY WHICH AN AGGRIEVED TAXPAYER COULD PAY UNDER
PROTEST AND THEN SUE THE COLLECTOR TO TEST THE CORRECTNESS OF THE TAX. 
FN12  THE COURTS BY FORCE OF THIS SITUATION ENTERTAINED ALL MANNER OF
TAX QUESTIONS, AND PRECEDENTS RAPIDLY ESTABLISHED A PATTERN OF JUDICIAL
THOUGHT AND ACTION WHEREBY THE ASSESSMENTS OF INCOME TAX WERE REVIEWED
WITHOUT MUCH RESTRAINT OR LIMITATION.  ONLY AFTER THAT PRACTICE BECAME
ESTABLISHED DID ADMINISTRATIVE REVIEW MAKE ITS APPEARANCE IN TAX
MATTERS. 

ADMINISTRATIVE MACHINERY TO GIVE CONSIDERATION TO THE TAXPAYER'S
CONTENTIONS EXISTED IN THE BUREAU OF INTERNAL REVENUE FROM ABOUT 1918
BUT IT WAS SUBORDINATE TO THE COMMISSIONER.  FN13  IN 1923, THE
SITUATION WAS BROUGHT TO THE ATTENTION OF CONGRESS BY THE SECRETARY OF
THE TREASURY, WHO PROPOSED CREATION OF A BOARD OF TAX APPEALS, WITHIN
THE TREASURY DEPARTMENT, WHOSE DECISION WAS TO CONCLUDE GOVERNMENT AND
TAXPAYER ON THE QUESTION OF ASSESSMENT AND LEAVE THE TAXPAYER TO PAY
THE TAX AND THEN TEST ITS VALIDITY BY SUIT AGAINST THE COLLECTOR.  FN14
CONGRESS RESPONDED BY CREATING THE BOARD OF TAX APPEALS AS "AN
INDEPENDENT AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT."  FN15
THE BOARD WAS TO GIVE HEARINGS AND NOTICE THEREOF AND "MAKE A REPORT IN
WRITING OF ITS FINDINGS OF FACT AND DECISION IN EACH CASE."  FN16  BUT
CONGRESS DEALT CAUTIOUSLY WITH FINALITY FOR THE BOARD'S CONCLUSIONS,
GOING ONLY SO FAR AS TO PROVIDE THAT IN LATER PROCEEDINGS THE FINDINGS
SHOULD BE "PRIMA FACIE EVIDENCE OF THE FACTS THEREIN STATED."  FN17  SO
THE BOARD'S DECISIONS FIRST CAME BEFORE THE COURTS UNDER A STATUTE
WHICH LEFT THEM FREE TO GO INTO BOTH FACT AND LAW QUESTIONS.  TWO YEARS
LATER CONGRESS REVIEWED AND COMMENDED THE WORK OF THE NEW BOARD,  FN18
INCREASED SALARIES AND LENGTHENED THE TENURE OF ITS MEMBERS,  FN19
PROVIDED FOR A DIRECT APPEAL FROM THE BOARD'S DECISIONS TO THE CIRCUIT
COURTS OF APPEALS OR THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA,
FN20  AND ENACTED THE PRESENT PROVISION LIMITING REVIEW TO QUESTIONS OF
LAW.  FN21 

BUT THIS RESTRICTION UPON JUDICIAL REVIEW OF THE BOARD'S DECISIONS
CAME ONLY AFTER THIRTEEN YEARS OF INCOME TAX EXPERIENCE HAD ESTABLISHED
A CONTRARY HABIT.  PRECEDENTS HAD ACCUMULATED IN WHICH COURTS HAD LAID
DOWN MANY RULES OF TAXATION NOT BASED ON STATUTE BUT UPON THEIR IDEAS
OF RIGHT ACCOUNTING OR TAX PRACTICE.  IT WAS DIFFICULT TO SHIFT TO A
NEW BASIS.  THIS COURT APPLIED THE LIMITATION, BUT WITH LESS EMPHASIS
AND LESS FORCEFUL RESOLUTION OF BORDERLINE CASES IN FAVOR OF
ADMINISTRATIVE FINALITY THAN IT HAS EMPLOYED IN REFERENCE TO OTHER
ADMINISTRATIVE DETERMINATIONS.  FN22 

THAT NEGLECT OF THE CONGRESSIONAL INSTRUCTION IS A FORTUITOUS
CONSEQUENCE OF THIS EVOLUTION OF THE TAX COURT RATHER THAN A DELIBERATE
OR PURPOSEFUL JUDICIAL POLICY IS THE MORE EVIDENT WHEN WE CONSIDER THAT
EVERY REASON EVER ADVANCED IN SUPPORT OF ADMINISTRATIVE FINALITY
APPLIES TO THE TAX COURT.    THE COURT IS INDEPENDENT, AND ITS
NEUTRALITY IS NOT CLOUDED BY PROSECUTING DUTIES.  ITS PROCEDURES ASSURE
FAIR HEARINGS.  ITS DELIBERATIONS ARE EVIDENCED BY CAREFUL OPINIONS. 
ALL GUIDES TO JUDGMENT AVAILABLE TO JUDGES ARE HABITUALLY CONSULTED AND
RESPECTED.  IT HAS ESTABLISHED A TRADITION OF FREEDOM FROM BIAS AND
PRESSURES.  FN23  IT DEALS WITH A SUBJECT THAT IS HIGHLY SPECIALIZED
AND SO COMPLEX AS TO BE THE DESPAIR OF JUDGES.  IT IS RELATIVELY BETTER
STAFFED FOR ITS TASK THAN IS THE JUDICIARY.  FN24  ITS MEMBERS NOT
INFREQUENTLY BRING TO THEIR TASK LONG LEGISLATIVE OR ADMINISTRATIVE
EXPERIENCE IN THEIR SUBJECT.  THE VOLUME OF TAX MATTERS FLOWING THROUGH
THE TAX COURT KEEPS ITS MEMBERS ABREAST OF CHANGING STATUTES,
REGULATIONS, AND BUREAU PRACTICES, INFORMED AS TO THE BACKGROUND OF
CONTROVERSIES AND AWARE OF THE IMPACT OF THEIR DECISIONS ON BOTH
TREASURY AND TAXPAYER.  INDIVIDUAL CASES ARE DISPOSED OF WHOLLY ON
RECORDS PUBLICLY MADE, IN ADVERSARY PROCEEDINGS, AND THE COURT HAS NO
RESPONSIBILITY FOR PREVIOUS HANDLING.  TESTED BY EVERY THEORETICAL AND
PRACTICAL REASON FOR ADMINISTRATIVE FINALITY, NO ADMINISTRATIVE
DECISIONS ARE ENTITLED TO HIGHER CREDIT IN THE COURTS.  CONSIDERATION
OF UNIFORM AND EXPEDITIOUS TAX ADMINISTRATIONS REQUIRE THAT THEY BE
GIVEN ALL CREDIT TO WHICH THEY ARE ENTITLED UNDER THE LAW. 

TAX COURT DECISIONS ARE CHARACTERIZED BY SUBSTANTIAL UNIFORMITY. 
APPEALS FAN OUT INTO COURTS OF APPEAL OF TEN CIRCUITS AND THE DISTRICT
OF COLUMBIA.  THIS DIVERSIFICATION OF APPELLATE AUTHORITY INEVITABLY
PRODUCES CONFLICT OF DECISION, EVEN IF REVIEW IS LIMITED TO QUESTIONS
OF LAW.  BUT CONFLICTS ARE MULTIPLIED BY TREATING AS QUESTIONS OF LAW
WHAT REALLY ARE DISPUTES OVER PROPER ACCOUNTING.  THE MERE NUMBER OF
SUCH QUESTIONS AND THE MASS OF DECISIONS THEY CALL FORTH BECOME A
MENACE TO THE CERTAINTY AND GOOD ADMINISTRATION OF THE LAW.  FN25 

TO ACHIEVE UNIFORMITY BY RESOLVING SUCH CONFLICTS IN THE SUPREME
COURT IS AT BEST SLOW, EXPENSIVE, AND UNSATISFACTORY.  STUDENTS OF
FEDERAL TAXATION AGREE THAT THE TAX SYSTEM SUFFERS FROM DELAY IN
GETTING THE FINAL WORD IN JUDICIAL REVIEW, FROM RETROACTIVITY OF THE
DECISION WHEN IT IS OBTAINED, AND FROM THE LACK OF A ROUNDLY TAX
INFORMED VIEWPOINT OF JUDGES.  FN26 

PERHAPS THE CHIEF DIFFICULTY IN CONSISTENT AND UNIFORM COMPLIANCE
WITH THE CONGRESSIONAL LIMITATION UPON COURT REVIEW LIES IN THE WANT OF
A CERTAIN STANDARD FOR DISTINGUISHING "QUESTIONS OF LAW" FROM
"QUESTIONS OF FACT."  THIS IS THE TEST CONGRESS HAS DIRECTED, BUT ITS
DIFFICULTIES IN PRACTICE ARE WELL KNOWN AND HAVE BEEN SUBJECT OF
FREQUENT COMMENT.  ITS DIFFICULTY IS REFLECTED IN OUR LABELING SOME
QUESTIONS AS "MIXED QUESTIONS OF LAW AND FACT"  FN27  AND IN A GREAT
NUMBER OF OPINIONS DISTINGUISHING "ULTIMATE FACTS" FROM EVIDENTIARY
FACTS.  FN28 

IT IS DIFFICULT TO LAY DOWN RULES AS TO WHAT SHOULD OR SHOULD NOT BE
REVIEWED IN TAX CASES EXCEPT IN TERMS SO GENERAL THAT THEIR
EFFECTIVENESS IN A PARTICULAR CASE WILL DEPEND LARGELY UPON THE
ATTITUDE WITH WHICH THE CASE IS APPROACHED.  HOWEVER, ALL THAT WE HAVE
SAID OF THE FINALITY OF ADMINISTRATIVE DETERMINATION IN OTHER FIELDS IS
APPLICABLE TO DETERMINATIONS OF THE TAX COURT.  ITS DECISION, OF
COURSE, MUST HAVE "WARRANT IN THE RECORD" AND A REASONABLE BASIS IN THE
LAW.  BUT "THE JUDICIAL FUNCTION IS EXHAUSTED WHEN THERE IS FOUND TO BE
A RATIONAL BASIS FOR THE CONCLUSIONS APPROVED BY THE ADMINISTRATIVE
BODY."  ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 146;
SWAYNE & HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 304; MISSISSIPPI
VALLEY BARGE LINE CO. V. UNITED STATES, 292 U.S. 282, 286-7; GRAY V.
POWELL, 314 U.S. 402, 412; HELVERING V. CLIFFORD, 309 U.S. 331, 336;
UNITED STATES V. LOUISVILLE & NASHVILLE R. CO., 235 U.S. 314, 320;
WILMINGTON TRUST CO. V. HELVERING, 316 U.S. 164, 168. 

CONGRESS HAS INVESTED THE TAX COURT WITH PRIMARY AUTHORITY FOR
REDETERMINING DEFICIENCIES, WHICH CONSTITUTES THE GREATER PART OF TAX
LITIGATION.  THIS REQUIRES IT TO CONSIDER BOTH LAW AND FACTS.  WHATEVER
LATITUDE EXISTS IN RESOLVING QUESTIONS SUCH AS THOSE OF PROPER
ACCOUNTING, TREATING A SERIES OF TRANSACTIONS AS ONE FOR TAX PURPOSES,
OR TREATING APPARENTLY SEPARATE ONES AS SINGLE IN THEIR TAX
CONSEQUENCES, EXISTS IN THE TAX COURT AND NOT IN THE REGULAR COURTS;
WHEN THE COURT CANNOT SEPARATE THE ELEMENTS OF A DECISION SO AS TO
IDENTIFY A CLEAR-CUT MISTAKE OF LAW, THE DECISION OF THE TAX COURT MUST
STAND.  IN VIEW OF THE DIVISION OF FUNCTIONS BETWEEN THE TAX COURT AND
REVIEWING COURTS IT IS OF COURSE THE DUTY OF THE TAX COURT TO
DISTINGUISH WITH CLARITY BETWEEN WHAT IT FINDS AS FACT AND WHAT
CONCLUSION IT REACHES ON THE LAW.  IN DECIDING LAW QUESTIONS COURTS MAY
PROPERLY ATTACH WEIGHT TO THE DECISION OF POINTS OF LAW BY AN
ADMINISTRATIVE BODY HAVING SPECIAL COMPETENCE TO DEAL WITH THE SUBJECT
MATTER.  THE TAX COURT IS INFORMED BY EXPERIENCE AND KEPT CURRENT WITH
TAX EVOLUTION AND NEEDS BY THE VOLUME AND VARIETY OF ITS WORK.  WHILE
ITS DECISIONS MAY NOT BE BINDING PRECEDENTS FOR COURTS DEALING WITH
SIMILAR PROBLEMS, UNIFORM ADMINISTRATION WOULD BE PROMOTED BY
CONFORMING TO THEM WHERE POSSIBLE. 

THE GOVERNMENT SAYS THAT "THE PRINCIPAL QUESTION IN THIS CASE TURNS
ON THE APPLICATION OF THE SETTLED PRINCIPLE THAT THE SINGLE YEAR IS THE
UNIT OF TAXATION."  BUT THE TAX COURT WAS AWARE OF THIS PRINCIPLE AND
IN NO WAY DENIED IT.  WHETHER AN APPARENTLY INTEGRATED TRANSACTION
SHALL BE BROKEN UP INTO SEVERAL SEPARATE STEPS AND WHETHER WHAT
APPARENTLY ARE SEVERAL STEPS SHALL BE SYNTHESIZED INTO ONE WHOLE
TRANSACTION IS FREQUENTLY A NECESSARY DETERMINATION IN DECIDING TAX
CONSEQUENCES.  FN29  WHERE NO STATUTE OR REGULATION CONTROLS, THE TAX
COURT'S SELECTION OF THE COURSE TO FOLLOW IS NO MORE REVIEWABLE THAN
ANY OTHER QUESTION OF FACT.  OF COURSE WE ARE NOT HERE CONSIDERING THE
SCOPE OF REVIEW WHERE CONSTITUTIONAL QUESTIONS ARE INVOLVED.  THE TAX
COURT ANALYZED THE BASIS OF THE LITIGATION WHICH PRODUCED THE RECOVERY
IN THIS CASE AND THE OBVIOUS FACT THAT "REGARDING THE SERIES OF
TRANSACTIONS AS A WHOLE IT IS APPARENT THAT NO GAIN WAS ACTUALLY
REALIZED."  IT FOUND THAT THE TAXPAYER HAD REALIZED NO TAX BENEFITS
FROM REPORTING THE TRANSACTION IN SEPARATE YEARS.  IT SAID THE QUESTION
UNDER THESE CIRCUMSTANCES WAS WHETHER THE AMOUNT THE TAXPAYER RECOVERED
IN 1939 "CONSTITUTES TAXABLE INCOME, EVEN THOUGH HE REALIZED NO
ECONOMIC GAIN."  IT CONCLUDED THAT THE ITEM SHOULD BE TREATED AS A
RETURN OF CAPITAL RATHER THAN AS TAXABLE INCOME.  THERE IS NO STATUTE
LAW TO THE CONTRARY, AND THE ADMINISTRATIVE RULINGS IN EFFECT AT THE
TIME TENDED TO SUPPORT THE CONCLUSION.  FN30  IT IS TRUE THAT THE BOARD
IN A WELL CONSIDERED OPINION REVIEWED A NUMBER OF COURT HOLDINGS, BUT
IT DID SO FOR THE PURPOSE OF SHOWING THAT THEY DID NOT FETTER ITS
FREEDOM TO REACH THE DECISION IT THOUGHT SOUND.  WITH THIS WE AGREE. 

VIEWING THE PROBLEM FROM A DIFFERENT ASPECT, THE GOVERNMENT URGES IN
THIS COURT THAT ALTHOUGH THE RECOVERY IS CAPITAL RETURN, IT IS TAXABLE
IN ITS ENTIRETY BECAUSE TAXPAYER'S BASIS FOR THE PROPERTY IN QUESTION
IS ZERO.  THE ARGUMENT RELIES UPON SEC. 113(B)(1)(A) OF THE INTERNAL
REVENUE CODE, WHICH PROVIDES FOR ADJUSTING THE BASIS OF PROPERTY FOR
"EXPENDITURES, RECEIPTS, LOSSES, OR OTHER ITEMS, PROPERLY CHARGEABLE TO
CAPITAL ACCOUNT."  THIS PROVISION, IT IS SAID, REQUIRES THAT THE RIGHT
TO A DEDUCTION FOR A CAPITAL LOSS BE TREATED AS A RETURN OF CAPITAL. 
CONSEQUENTLY, BY DEDUCTING IN 1930 AND 1931 THE ENTIRE DIFFERENCE
BETWEEN THE COST OF HIS STOCK AND THE PROCEEDS OF THE SALES, TAXPAYER
REDUCED HIS BASIS TO ZERO.  BUT THE STATUTE CONTAINS NO SUCH FIXED RULE
AS THE GOVERNMENT WOULD HAVE US READ INTO IT.  IT DOES NOT SPECIFY THE
CIRCUMSTANCES OR MANNER IN WHICH ADJUSTMENTS OF THE BASIS ARE TO BE
MADE, BUT MERELY PROVIDES THAT "PROPER ADJUSTMENT  ...  SHALL IN ALL
CASES BE MADE" FOR THE ITEMS NAMED IF "PROPERLY CHARGEABLE TO CAPITAL
ACCOUNT."  WHAT, IN THE CIRCUMSTANCES OF THIS CASE, WAS A PROPER
ADJUSTMENT OF THE BASIS WAS THUS PURELY AN ACCOUNTING PROBLEM AND
THEREFORE A QUESTION OF FACT FOR THE TAX COURT TO DETERMINE.  EVIDENTLY
THE TAX COURT THOUGHT THAT THE PREVIOUS DEDUCTIONS WERE NOT ALTOGETHER
"PROPERLY CHARGEABLE TO CAPITAL ACCOUNT" AND THAT TO TREAT THEM AS AN
ENTIRE RECOUPMENT OF THE VALUE OF TAXPAYER'S STOCK WOULD NOT HAVE BEEN
A "PROPER ADJUSTMENT."  WE THINK THERE WAS SUBSTANTIAL EVIDENCE TO
SUPPORT SUCH A CONCLUSION. 

THE GOVERNMENT RELIES UPON BURNET V. SANFORD & BROOKS CO., 282 U.S.
359, FOR THE PROPOSITION THAT LOSSES OF ONE YEAR MAY NOT OFFSET
RECEIPTS OF ANOTHER YEAR.  BUT THE CASE SUGGESTED ITS OWN DISTINCTION:
"WHILE (THE MONEY RECEIVED) EQUALLED, AND IN A LOOSE SENSE WAS A RETURN
OF, EXPENDITURES MADE IN PERFORMING THE CONTRACT, STILL, AS THE BOARD
OF TAX APPEALS FOUND, THE EXPENDITURES WERE MADE IN DEFRAYING THE
EXPENSES.  ...  THEY WERE NOT CAPITAL INVESTMENTS, THE COST OF WHICH,
IF CONVERTED, MUST FIRST BE RESTORED FROM THE PROCEEDS BEFORE THERE IS
A CAPITAL GAIN TAXABLE AS INCOME."  282 U.S. AT 363-64.  IT IS ALSO
WORTH NOTING THAT THE COURT AFFIRMED THE BOARD'S DECISION, WHICH HAD
BEEN UPSET BY THE CIRCUIT COURT OF APPEALS, AND ANSWERED, IN PART, THE
CONTENTION OF THE CIRCUIT COURT THAT CERTAIN REGULATIONS WERE
APPLICABLE BY SAYING,  "...  NOR ON THIS RECORD DO ANY FACTS APPEAR
TENDING TO SUPPORT THE BURDEN, RESTING ON THE TAXPAYER, OF ESTABLISHING
THAT THE COMMISSIONER ERRED IN FAILING TO APPLY THEM."  282 U.S. AT 366
67. 

IT IS ARGUED ON BEHALF OF THE COMMISSIONER THAT THE COURT SHOULD
OVERRULE THE BOARD BY APPLYING TO THIS QUESTION RULES OF LAW LAID DOWN
IN DECISIONS ON THE ANALOGOUS PROBLEM RAISED BY RECOVERY OF BAD DEBTS
CHARGED OFF WITHOUT TAX BENEFIT IN PRIOR YEARS.  THE COURT BELOW
ACCEPTED THE ARGUMENT.  HOWEVER, INSTEAD OF AFFORDING A REASON FOR
OVERRULING THE TAX COURT, THE HISTORY OF THE BAD DEBT RECOVERY QUESTION
ILLUSTRATES THE MISCHIEF OF OVERRULING THE TAX COURT IN MATTERS OF TAX
ACCOUNTING.  COURTS WERE PERSUADED TO RULE AS MATTER OF LAW THAT BAD
DEBT RECOVERIES CONSTITUTE TAXABLE INCOME, REGARDLESS OF TAX BENEFIT
FROM THE CHARGE-OFF.  FN31  THE TAX COURT HAD FIRST MADE A SIMILAR
HOLDING,  FN32  BUT HAD COME TO HOLD TO THE CONTRARY.  FN33
SUBSTITUTION OF THE COURTS' RULE FOR THAT OF THE TAX COURT LED TO SUCH
HARDSHIPS AND INEQUITIES THAT THE TREASURY APPEALED TO CONGRESS TO
EXTEND RELIEF.  FN34  IT DID SO.  FN35  THE GOVERNMENT NOW ARGUES THAT
BY EXTENDING LEGISLATIVE RELIEF IN BAD DEBT CASES CONGRESS RECOGNIZED
THAT IN THE ABSENCE OF SPECIFIC EXEMPTION RECOVERIES ARE TAXABLE AS
INCOME.  WE DO NOT FIND THAT SIGNIFICANCE IN THE AMENDMENT.  A SPECIFIC
STATUTORY EXCEPTION WAS NECESSARY IN BAD DEBT CASES ONLY BECAUSE THE
COURTS REVERSED THE TAX COURT AND ESTABLISHED AS MATTER OF LAW A
"THEORETICALLY PROPER" RULE WHICH DISTORTED THE TAXPAYER'S INCOME. 
CONGRESS WOULD HARDLY EXPECT THE COURTS TO REPEAT THE SAME ERROR IN
ANOTHER CLASS OF CASES, AS WE WOULD DO WERE WE TO AFFIRM IN THIS CASE. 
FN36 

THE GOVERNMENT ALSO SUGGESTED THAT "IF THE TAX BENEFIT RULE WERE
JUDICIALLY ADOPTED THE QUESTION WOULD THEN ARISE OF HOW IT SHOULD BE
DETERMINED," AND THE DIFFICULTIES OF DETERMINING TAX BENEFITS, IT SAYS,
CREATE "AN OBJECTION IN ITSELF TO AN ATTEMPT TO ADOPT SUCH A RULE BY
JUDICIAL ACTION."  WE ARE NOT ADOPTING ANY RULE OF TAX BENEFITS.  WE
ONLY HOLD THAT NO STATUTE OR REGULATION HAVING THE FORCE OF ONE AND NO
PRINCIPLE OF LAW COMPELS THE TAX COURT TO FIND TAXABLE INCOME IN A
TRANSACTION WHERE AS MATTER OF FACT IT FOUND NO ECONOMIC GAIN AND NO
USE OF THE TRANSACTION TO GAIN TAX BENEFIT.  THE ERROR OF THE COURT
BELOW CONSISTED OF TREATING AS A RULE OF LAW WHAT WE THINK IS ONLY A
QUESTION OF PROPER TAX ACCOUNTING. 

THERE IS SOME DIFFERENCE IN THE FACTS OF THESE CASES.  IN TWO OF THEM
THE TAX COURT SUSTAINED DEFICIENCIES BECAUSE IT FOUND THAT THE
DEDUCTIONS IN PRIOR YEARS HAD OFFSET GROSS INCOME FOR THOSE YEARS AND
THEREFORE CONCLUDED THAT THE RECOVERIES MUST TO THAT EXTENT BE TREATED
AS TAXABLE GAIN.  FN37  THE TAXPAYERS OBJECT THAT THIS CONCLUSION
DISREGARDS CERTAIN EXEMPTIONS AND CREDITS WHICH WOULD HAVE BEEN
AVAILABLE TO OFFSET THE INCREASED GROSS INCOME IN THE PRIOR YEARS, SO
THAT THE DEDUCTIONS RESULTED IN NO TAX SAVINGS.  IN DETERMINING WHETHER
THE RECOVERIES WERE TAXABLE GAIN, HOWEVER, THE TAX COURT WAS FREE TO
DECIDE FOR ITSELF WHAT SIGNIFICANCE IT WOULD ATTACH TO THE PREVIOUS
REDUCTION OF TAXABLE INCOME AS CONTRASTED WITH REDUCTION OF TAX.  THE
STATUTE GIVES NO INKLING AS TO THE CORRECTNESS OR INCORRECTNESS OF THE
TAX COURT'S VIEW, AND WE CAN FIND NO COMPELLING REASON TO SUBSTITUTE
OUR JUDGMENT.  IN NO. 47 THE DECISION OF THE TAX COURT WAS UPHELD BY
THE COURT BELOW, AND IN THAT CASE THE JUDGMENT IS AFFIRMED.  IN NOS.
44, 45, AND 46, THE COURT OF APPEALS REVERSED THE TAX COURT, AND FOR
THE REASONS STATED ITS JUDGMENTS IN THOSE CASES ARE REVERSED.  NO. 47
AFFIRMED.  NOS. 44, 45, 46 REVERSED. 

FN1  ESTATE OF COLLINS V. COMMISSIONER, 46 B.T.A. 765. 

FN2  133 F.2D 732. 

FN3  319 U.S. 739. 

FN4  REVENUE ACT OF 1926 SEC. 1003(B), 44 STAT. 9, 110, NOW INTERNAL
REVENUE CODE SEC. 1141(C)(1). 

FN5  TREASURY REGULATIONS 103, SEC. 19.43-2. 

FN6  REVENUE ACT OF 1928 SEC. 272(G), 45 STAT. 854, NOW INTERNAL
REVENUE CODE SEC. 272(G). 

FN7  REVENUE ACT OF 1926 SEC. 1003(B), 44 STAT. 9, 110, NOW INTERNAL
REVENUE CODE SEC. 1141(C)(1). 

FN8  COMPARE HELVERING V. TEX-PENN OIL CO., 300 U.S. 481, AND
BOGARDUS V. COMMISSIONER, 302 U.S. 34, WITH ROCHESTER TELEPHONE CORP.
V. UNITED STATES, 307 U.S. 125(FEDERAL COMMUNICATIONS COMMISSION);
SHIELDS V. UTAH IDAHO CENTRAL R. CO., 305 U.S. 177(INTERSTATE COMMERCE
COMMISSION); SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381, 399-400; GRAY
V. POWELL, 314 U.S. 402(BITUMINOUS COAL COMMISSION); LABOR BOARD V.
WATERMAN S.S. CORP., 309 U.S. 206(NATIONAL LABOR RELATIONS BOARD). 
FN9  28 U.S.C. SEC. 41(20). 

FN10  28 U.S.C. SEC. 773; ACT OF MAY 29, 1930, C. 357, 46 STAT. 486. 

FN11  28 U.S.C. SEC. 875.  SEE CARLOSS, MONOGRAPH ON FINDINGS OF FACT
(SUPT.  OF DOCUMENTS, 1934) 4.  SOME 280 CASES ON THE REVIEW OF
FINDINGS OF FACT ARE CONSIDERED. 

FN12  SEE CHEATHAM V. UNITED STATES, 92 U.S. 85, 89. 

FN13  FOR AN ACCOUNT THEREOF, SEE OPINION OF MR. JUSTICE BRANDEIS IN
WILLIAMSPORT WIRE ROPE CO. V. UNITED STATES, 277 U.S. 551, 562, N. 7. 

FN14  ANNUAL REPORT OF SECRETARY OF TREASURY, FINANCE 1(1923) 10;
HAMEL, PRACTICE AND EVIDENCE BEFORE THE U.S. BOARD OF TAX APPEALS
(1938) 5. 

FN15 REVENUE ACT OF 1924 SEC. 900(K), 43 STAT. 253, 336. 

FN16  ID., SEC. 900(H). 

FN17  ID., SEC. 900(G). 

FN18  H.R. REP. NO. 1, 69TH CONG., 1ST SESS.; SEN. REP. NO. 52, 69TH
CONG., 1ST SESS. 

FN19  REVENUE ACT OF 1926 SECS. 901(A), 900, 44 STAT. 9, 106, 105. 

FN20  ID., SEC. 1001(A), 44 STAT. 9, 109. 

FN21  ID., SEC. 1003(B), 44 STAT. 9, 110. 

FN22  E.G., HELVERING V. RANKIN, 295 U.S. 123, 131; HELVERING V. TEX
PENN OIL CO., 300 U.S. 481, 491; BOGARDUS V. COMMISSIONER, 302 U.S. 34,
38-39.  FOR A SAMPLE OF THE DIVERSE TREATMENT OF BOARD DECISIONS WHEN
REVIEWED BY THIS COURT, SEE ELMHURST CEMETERY CO. V. COMMISSIONER, 300
U.S. 37; PALMER V. COMMISSIONER, 302 U.S. 63, 70; HELVERING V. NATIONAL
GROCERY CO., 304 U.S. 282, 294; COLORADO NATIONAL BANK V. COMMISSIONER,
305 U.S. 23; HELVERING V. LAZARUS & CO., 308 U.S. 252; GRIFFITHS V.
COMMISSIONER, 308 U.S. 355; HELVERING V. KEHOE, 309 U.S. 277; HIGGINS
V. COMMISSIONER, 312 U.S. 212; POWERS V. COMMISSIONER, 312 U.S. 259;
WILMINGTON TRUST CO. V. HELVERING, 316 U.S. 164, 168; MERCHANTS
NATIONAL BANK V. COMMISSIONER, ANTE, P. 256.  COMPARE THE FOREGOING
WITH THE CASES CITED SUPRA NOTE 8. 

FN23  SEE REPORTS OF CONGRESSIONAL COMMITTEES ON THE REVENUE ACT OF
1926, CITED SUPRA NOTE 18. 

FN24  SEE MILLER, SUPPORTING PERSONNEL OF FEDERAL COURTS, 29 A.B.A.
JOURNAL 130, 131. 

FN25  "JUDGE-MADE LAW IS PARTICULARLY PROLIFIC IN CONNECTION WITH
FEDERAL TAXATION, COMING, AS IT DOES, FROM SO MANY COURTS OF COORDINATE
JURISDICTION.  AND THE CONSTANT OUTPOURING OF DECISIONS HAS STEADILY
INCREASED IN VOLUME.  FOR THE YEAR 1920 A LEADING TAX SERVICE
CATALOGUED ONLY 300 DECISIONS; CCH FEDERAL TAX SERVICE (1921).  ...
TODAY ONE MUST LOOK TO APPROXIMATELY 20,000 COURT AND BOARD DECISIONS,
MANY PAGES OF REGULATIONS, AND ABOUT 5,000 RULINGS.  SINCE 1924 THE
BOARD OF TAX APPEALS ALONE HAS PUBLISHED ABOUT 8,500 OPINIONS, AS WELL
AS APPROXIMATELY 4,000 UNREPORTED MEMORANDUM OPINIONS.  FOR THE FISCAL
YEARS 1935, 1936 AND 1937, THE NUMBER OF BOARD DOCKETS APPEALED TO THE
CIRCUIT COURTS OF APPEAL HAS AMOUNTED, ON THE AVERAGE, TO 509 EACH
YEAR.  THE SUPREME COURT'S BALANCE SHEET SHOWS THAT FEDERAL TAXATION
WAS THE PRINCIPAL CONCERN OF THAT COURT DURING THE 1934 TERM, WITH 44
DECISIONS BEING HANDED DOWN IN THAT FIELD.  DURING THE THREE YEARS,
1935, 1936, AND 1937, THE SUPREME COURT RENDERED DECISIONS IN 84
FEDERAL TAX CASES."  PAUL, SELECTED STUDIES IN FEDERAL TAXATION (1938)
2, N. 2. 

"AS OF DECEMBER 31, 1936, 4,700 DECISIONS HAD BEEN APPEALED TO THE
CIRCUIT COURTS OF APPEAL (OR THE COURT OF APPEALS OF THE DISTRICT OF
COLUMBIA) OF WHICH 3,996 HAD BEEN DISPOSED OF.  THIS LEFT A PENDING
APPELLATE DOCKET OF 704."  ID., 140, N. 133. 

FN26  PAUL, SELECTED STUDIES IN FEDERAL TAXATION (1938) 204, N. 18,
COMMENTS ON THE NUMBER AND VARIETY OF THE SOURCES CONTRIBUTING TO TAX
LAW. 

SEE GRISWOLD, BOOK REVIEW, 56 HARV. L. REV. 1354. 

MAGILL, THE IMPACT OF FEDERAL TAXES (1943) 209, SAYS:  "AT THE
PRESENT TIME, IT IS IMPOSSIBLE TO OBTAIN A REALLY AUTHORITATIVE
DECISION OF GENERAL APPLICATION UPON IMPORTANT QUESTIONS OF LAW FOR
MANY YEARS AFTER THE CLOSE OF ANY TAXABLE YEAR.  THE AVERAGE PERIOD
BETWEEN THE TAXABLE YEAR IN DISPUTE AND A SUPREME COURT DECISION
RELATING THERETO IS NINE YEARS.  MEANWHILE CONFUSION REIGNS IN THE DAY
BY-DAY SETTLEMENT OF THE MORE DEBATABLE QUESTIONS OF THE TAX LAW.  ONE
CIRCUIT COURT HOLDS THAT A CERTAIN SITUATION GIVES RISE TO TAX
LIABILITY; ANOTHER CIRCUIT HOLDS THE CONTRARY.  THE COMMISSIONER AND
THE LOWER FEDERAL COURTS ARE BOTH CONFRONTED WITH THE PROBLEM OF
RECONCILING THE IRRECONCILABLE.  A GREAT PART OF THE CRITICISM OF
CHANGING INTERPRETATIONS OF THE LAW ANNOUNCED BY THE COMMISSIONER OF
INTERNAL REVENUE IS PROPERLY ATTRIBUTABLE TO THE MULTITUDE OF TRIBUNALS
WITH ORIGINAL JURISDICTION IN TAX CASES, AND TO THE ABSENCE OF
PROVISION FOR DECISIONS WITH NATIONWIDE AUTHORITY IN THE MAJORITY OF
CASES.  IF WE WERE SEEKING TO SECURE A STATE OF COMPLETE UNCERTAINTY IN
TAX JURISPRUDENCE, WE COULD HARDLY DO BETTER THAN TO PROVIDE FOR 87
COURTS WITH ORIGINAL JURISDICTION, 11 APPELLATE BODIES OF COORDINATE
RANK, AND ONLY A DISCRETIONARY REVIEW OF RELATIVELY FEW CASES BY THE
SUPREME COURT." 

FN27  E.G., HELVERING V. RANKIN, 295 U.S. 123, 131; HELVERING V. TEX
PENN OIL CO., 300 U.S. 481, 491; BOGARDUS V. COMMISSIONER, 302 U.S. 34,
39. 

FN28  E.G., ANDERSON V. COMMISSIONER, 78 F.2D 636; CHILDERS V.
COMMISSIONER, 80 F.2D 27; EATON V. COMMISSIONER, 81 F.2D 332; RANKIN V.
COMMISSIONER, 84 F.2D 551. 

FN29  SEE PAUL, "STEP TRANSACTIONS," SELECTED STUDIES IN FEDERAL
TAXATION (1938) 203. 

FN30  GENERAL COUNSEL'S MEMORANDUM 20854, 1939-1 CUM. BULL.  102,
FOLLOWING G.C.M. 18525, 1937-1 CUM. BULL.  80; REVOKED BY G.C.M. 22163,
1940-2 CUM. BULL.  76.  THIS DEALT WITH BAD DEBT RECOVERIES. 

FN31  COMMISSIONER V. UNITED STATES & INTERNATIONAL SECURITIES CORP.,
130 F.2D 894; HELVERING V. STATE-PLANTERS BANK & TRUST CO., 130 F.2D
44. 

FN32  LAKE VIEW TRUST & SAVINGS BANK V. COMMISSIONER, 27 B.T.A. 290. 

FN33  CENTRAL LOAN & INVESTMENT CO. V. COMMISSIONER, 39 B.T.A. 981;
CITIZENS STATE BANK V. COMMISSIONER, 46 B.T.A. 964. 

FN34  MR. RANDOLPH PAUL, TAX ADVISER TO THE SECRETARY OF THE
TREASURY, IN A STATEMENT TO THE HOUSE COMMITTEE ON WAYS AND MEANS SAID:
"THE SECRETARY HAS POINTED OUT THAT WARTIME RATES MAKE IT IMPERATIVE
TO ELIMINATE AS FAR AS POSSIBLE EXISTING INEQUITIES WHICH DISTORT THE
TAX BURDEN OF CERTAIN TAXPAYERS.  I SHOULD LIKE TO DISCUSS THE
INEQUITIES WHICH THE SECRETARY MENTIONED, AS WELL AS A FEW ADDITIONAL
HARDSHIPS.  ... 

"(C)  RECOVERIES OF BAD DEBTS AND TAXES.  - IF A TAXPAYER WHO HAS
TAKEN A BAD DEBT DEDUCTION LATER RECEIVES PAYMENT OF SUCH DEBT, SUCH
PAYMENT MUST BE INCLUDED IN HIS INCOME EVEN THOUGH HE OBTAINED NO TAX
BENEFIT FROM THE DEDUCTION IN THE PRIOR YEAR.  WHILE THIS RESULT IS
THEORETICALLY PROPER UNDER OUR ANNUAL SYSTEM OF TAXATION, IT MAY
PRODUCE SEVERE HARDSHIPS IN CERTAIN CASES THROUGH A DISTORTION OF THE
TAXPAYER'S REAL INCOME.  AT THE SAME TIME, ANY DEPARTURE FROM OUR
ANNUAL SYSTEM OF TAXATION ALWAYS PRODUCES ADMINISTRATIVE DIFFICULTIES
WHICH SERVE TO IMPEDE THE COLLECTION OF TAXES. 

"IT IS BELIEVED THAT THE HARDSHIPS CAN BE REMOVED AND THE
ADMINISTRATIVE DIFFICULTIES KEPT TO A MINIMUM BY EXCLUDING FROM INCOME
AMOUNTS RECEIVED IN PAYMENT OF THE DEBT TO THE EXTENT THAT THE
DEDUCTION ON ACCOUNT OF THE DEBT IN THE PRIOR YEAR DID NOT PRODUCE A
TAX BENEFIT.  THE TROUBLESOME QUESTION WHETHER A BENEFIT RESULTED
SHOULD BE DETERMINED PURSUANT TO REGULATIONS PRESCRIBED BY THE
COMMISSIONER WITH THE APPROVAL OF THE SECRETARY.  IT IS ALSO SUGGESTED
THAT THIS TREATMENT BE EXTENDED TO REFUNDS OF TAXES PREVIOUSLY
DEDUCTED."  HEARINGS BEFORE COMMITTEE ON WAYS AND MEANS ON REVENUE
REVISION OF 1942, 77TH CONG., 2D SESS., VOL. I, 80, 87-88. 

FN35  REVENUE ACT OF 1942 SEC. 116, 56 STAT. 798, 812. 

FN36  THE QUESTION OF WHETHER A RECOVERY IS PROPERLY ACCOUNTED FOR AS
INCOME IN THE YEAR RECEIVED OR SHOULD BE RELATED TO A PREVIOUS REPORTED
DEDUCTION WITHOUT TAX BENEFIT IS ONE WITH A LONG HISTORY AND MUCH
CONFLICT.  IT ARISES NOT ONLY IN CASE OF RECOVERIES OF PREVIOUSLY
CHARGEDOFF BAD DEBTS AND RECOVERIES OF THE TYPE WE HAVE HERE.  IT IS
ALSO PRESENT IN CASE OF REFUND OF TAXES OR CANCELLATION OF EXPENSES OR
INTEREST PREVIOUSLY REPORTED AS ACCRUED, ADJUSTMENTS OF DEPRECIATION
AND DEPLETION OR AMORTIZATION, AND OTHER SIMILAR SITUATIONS. 

FN37  DOBSON V. COMMISSIONER, 46 B.T.A. 770. 
..END :



















COLGATE CO. V. UNITED STATES, 320 U.S. 422 


NOS. 38 AND 39.  ARGUED NOVEMBER 8, 1943.  - DECIDED DECEMBER 13, 1943. 
- 130 F.2D 913, AFFIRMED. 


1.  THE TAX IMPOSED BY SEC. 602 1/2 OF THE REVENUE ACT OF 1934 UPON
THE "FIRST DOMESTIC PROCESSING" OF DESIGNATED OILS APPLIES TO THE FIRST
DOMESTIC PROCESSING AFTER THE EFFECTIVE DATE OF THE ACT, EVEN THOUGH
THERE WAS DOMESTIC PROCESSING PRIOR TO THAT DATE.  P. 424. 

2.  THE 1936 AMENDMENT OF SEC. 602 1/2 DOES NOT REQUIRE A DIFFERENT
RESULT.  P. 427. 

3.  THIS CONSTRUCTION OF SEC. 602 1/2 IS IN ACCORD WITH ITS
LEGISLATIVE HISTORY AND ITS GENERAL PURPOSE TO PROMOTE THE INTERESTS OF
DOMESTIC OIL PRODUCERS.  P. 429. 

COLGATE-PALMOLIVE-PEET CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 319 U.S. 778, TO REVIEW THE AFFIRMANCE OF JUDGMENTS, 37
F.SUPP.  794, DISMISSING THE COMPLAINTS IN TWO SUITS FOR THE RECOVERY
OF TAXES. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE TWO WRITS OF CERTIORARI WERE GRANTED TO REVIEW A JUDGMENT OF
THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT DENYING RECOVERY TO
THE PETITIONER OF TAXES PAID TO THE UNITED STATES AGGREGATING
$2,532,643.16.  THE ISSUES IN THE TWO CASES ARE IDENTICAL.  EACH CASE
COVERS A SEPARATE PERIOD OF TIME. 

THE SUITS WERE BROUGHT IN THE UNITED STATES DISTRICT OF DELAWARE
UNDER JUDICIAL CODE SEC. 24(20).  RECOVERY WAS THERE ALSO DENIED.  WE
GRANTED CERTIORARI BECAUSE OF A CONFLICT OF DECISIONS.  319 U.S. 778. 
SEE HARRISON V. DURKEE FAMOUS FOODS, 136 F.2D 303; LOOSE-WILES BISCUIT
CO. V. RASQUIN, 95 F.2D 438; TASTY BAKING CO. V. UNITED STATES, 38
F.SUPP 844; CINCINNATI SOAP CO. V. UNITED STATES, 22 F.SUPP.  141. 

THE ISSUE IS NARROW AND MAY BE SIMPLY STATED.  IN THE REVENUE ACT OF
1934, SEC. 602 1/2, 48 STAT. 763, AN EXCISE TAX WAS LEVIED ON THE
"FIRST DOMESTIC PROCESSING" OF CERTAIN FOREIGN OILS - COCONUT, SESAME,
PALM, ET CETERA.  FN1  WHEN THE ACT WAS APPROVED ON MAY 10, 1934, THIS
PETITIONER HAD ON HAND LARGE QUANTITIES OF THESE OILS WHICH HAD GONE
THROUGH ONE OR MORE DOMESTIC PROCESSINGS.  AFTER THE EFFECTIVE DATE,
ALL OF THIS OIL WAS SUBJECTED TO FURTHER PROCESSING UPON WHICH
PETITIONER PAID A TAX, RECOVERY OF WHICH IS HERE SOUGHT.  THE TAXPAYER
URGES THAT THE TAXABLE EVENT FIXED BY THE STATUTE IS THE FIRST DOMESTIC
PROCESSING, WITHOUT REGARD TO WHEN IT OCCURS.  THE PHRASE IS DEFINED BY
THE STATUTE AS "THE FIRST USE IN THE UNITED STATES  ...  OF THE
ARTICLE" TAXED.  SINCE THE EFFECTIVE DATE OF THE ACT IS MAY 10, 1934,
THE TAXPAYER CONCLUDES THAT IF THE FIRST USE IN THIS COUNTRY OCCURS
AFTER THAT DATE, IT IS A TAXABLE EVENT, AND IF IT OCCURS BEFORE MAY 10,
1934, IT IS NOT A TAXABLE EVENT.  THE GOVERNMENT READS THE ACT
DIFFERENTLY.  TO IT, THE ACT IMPOSES A TAX ON THE FIRST DOMESTIC
PROCESSING AFTER THE EFFECTIVE DATE OF THE ACT, REGARDLESS OF THE PRIOR
DOMESTIC PROCESSING.  THE LITIGANTS AGREE THAT THE SECTION IS NOT
RETROACTIVE.  THE FACTS ARE NOT IN DISPUTE. 

THE SECTION IN QUESTION DOES NOT MAKE CLEAR WHETHER THE "FIRST
DOMESTIC PROCESSING" IS THE FIRST WHICH TAKES PLACE IN THIS COUNTRY OR
THE FIRST AFTER THE PASSAGE OF THE ACT.  THE DEFINITION IN SEC. 602 1/2
DOES NOT AID THE INTERPRETATION.  "FIRST USE" MAY BE FIRST AFTER
IMPORTATION OR FIRST AFTER THE ACT.  THE LIKELIHOOD THAT TAX STATUTES
LOOK TO THE FUTURE AND NOT THE PAST INDICATES THAT PROCESSINGS AFTER
THE EFFECTIVE DATE WERE MEANT TO BE TAXED.  CF. HASSETT V. WELCH, 303;
SHWAB V. DOYLE, 258 U.S. 529.  THIS LIKELIHOOD DOES NOT DEPEND UPON ANY
TAXATION OF A PAST EVENT BUT UPON THE REASONABLE PROBABILITY THAT
CONGRESS WOULD WISH TO TAX FUTURE PROCESSINGS.  THE INSERTION OF THE
QUALIFYING ADJECTIVE "FIRST" WAS PROBABLY DUE TO A DESIRE TO AVOID
ACCUMULATIVE TAXES ON SUCCESSIVE PROCESSINGS.  TREAS. REG. 48, ART. 1,
AS AMENDED BY T.D. 4695. 

AN EXAMINATION OF THE GENERAL CONGRESSIONAL PURPOSES INTENDED TO BE
SERVED BY THE ACT WILL FURTHER AID IN THE RESOLUTION OF THIS DISPUTE. 
THIS TAX HAS BEEN HELD BY THIS COURT TO BE A VALID EXERCISE OF THE
TAXING POWER.  CINCINNATI SOAP CO. V. UNITED STATES, 301 U.S. 308,
312.  BUT THE LEGISLATIVE HISTORY CANNOT BE READ WITHOUT REACHING A
CONVICTION THAT THE ADVANTAGES WHICH WOULD RESULT TO AMERICAN VEGETABLE
OIL PRODUCERS FROM THE HEAVY TAX ON OILS NOT PRODUCED IN THE
CONTINENTAL UNITED STATES PLAYED A LEADING PART IN PROMOTING THE
LEGISLATION.  FN2  ID., 320.  THE TAX YIELDED SUBSTANTIAL REVENUES,
WHICH WERE REMITTED TO THE PHILIPPINE GOVERNMENT, SINCE THE PHILIPPINES
WERE THE SOURCE OF MANY OF THE PRODUCTS TAXED. 

A DESIRE FOR EQUALITY AMONG TAXPAYERS IS TO BE ATTRIBUTED TO
CONGRESS, RATHER THAN THE REVERSE.  YET THE OMISSION BY CONGRESS OF A
TAX UPON THE FIRST PROCESSING WHICH FOLLOWED THE ENACTMENT OF THE ACT
WOULD GIVE USERS OF THE OILS WHO HAD TREATED THEM PRIOR TO THE ACT A
DEFINITE ADVANTAGE OVER THEIR COMPETITORS WHO HAD NOT DONE SO.  THE
ADVANTAGE WOULD BE SLIGHT IF CONGRESS HAD SUPPOSED THE TAX WOULD
FINALLY BE BORNE BY THE CONSUMER RATHER THAN BY THE MANUFACTURER, BUT
HERE THE PURPOSE WAS TO RESTRICT THE DOMESTIC MARKET FOR IMPORTED OILS,
AND CONGRESS PROBABLY WOULD NOT INTEND THAT MANUFACTURERS SHOULD FIND A
MARKET FOR THE FOREIGN OIL AT A PRICE ENHANCED BY THE FULL AMOUNT OF
THE TAX.  AGAIN, IF PETITIONER'S ARGUMENT IS SOUND, THE CONGRESSIONAL
PURPOSE TO CREATE AN ADVANTAGE FOR DOMESTIC OIL PRODUCERS WOULD BE
FRUSTRATED TO THE EXTENT THAT TAXFREE FOREIGN OILS ON HAND COULD
CONTINUE TO COMPETE WITH THE DOMESTIC PRODUCT.  A MAJOR PURPOSE OF THE
LEGISLATION WOULD BE TEMPORARILY DEFEATED IN PART BY FREEING FROM THE
TAX OIL WHICH HAD RECEIVED ONE DOMESTIC PROCESSING. 

THE TREASURY PROMPTLY INTERPRETED THE ACT TO APPLY TO ALL FIRST
PROCESSINGS AFTER ITS EFFECTIVE DATE.  TREAS. REG. 48, ART. 1(L),
AUGUST 17, 1934.  THIS ACTION OF THE TREASURY, WITH ITS WIDE EXPERIENCE
IN TAX MATTERS, HAS WEIGHT IN OUR CONCLUSION, NOTWITHSTANDING THE
PROMPT CHALLENGE OF THE TAXPAYER AND OTHERS SIMILARLY SITUATED.  UNITED
STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 549. 

IN REACHING THE CONCLUSION THAT THE "FIRST DOMESTIC PROCESSING" IS
THE FIRST AFTER THE PASSAGE OF THE ACT, WE DO NOT DISREGARD SOME
CIRCUMSTANCES VIGOROUSLY PRESSED UPON US BY PETITIONER WHICH GIVE COLOR
TO THE OPPOSITE INTERPRETATION.  THE TAXPAYER POINTS TO THE FACT THAT
THE PHRASE "FIRST DOMESTIC PROCESSING" WAS USED EARLIER IN SEC. 9(A) OF
THE AGRICULTURAL ADJUSTMENT ACT OF MAY 12, 1933, 48 STAT. 31, 35, WHICH
LEVIED A SIMILAR PROCESSING TAX UPON THE FIRST DOMESTIC PROCESSING OF
THE BASIC AGRICULTURAL COMMODITIES - WHEAT, COTTON, CORN, HOGS, RICE,
TOBACCO AND MILK - AND THAT, AT THE TIME THIS TAX WAS PLACED ON FOREIGN
OILS, A REGULATION OF THE COMMISSIONER OF INTERNAL REVENUE WAS IN
EFFECT WHICH INTERPRETED THE PHRASE AS BEING THE FIRST DOMESTIC
PROCESSING WHENEVER IT OCCURRED AND THEREFORE AS RELIEVING A PROCESSOR
OF THE TAX WHEN THE FIRST DOMESTIC PROCESSING TOOK PLACE PRIOR TO THE
EFFECTIVE DATE OF THE A.A.A.  TREAS. REG. 81, AS AMENDED, T.D. 4403,
NOVEMBER 2, 1933. 

THE ANSWER TO THIS ARGUMENT ARISES FROM THE DIFFERENCE BETWEEN THE
TWO ACTS AS TO THE TAXATION OF FLOOR STOCKS.  UNDER THE A.A.A.
COMMODITIES WHICH HAD UNDERGONE THEIR FIRST DOMESTIC PROCESSING PRIOR
TO THE PASSAGE OF THE ACT BORE A CORRESPONDING FLOOR STOCK TAX.  48
STAT. 40, SEC. 16.  A SUBSEQUENT PROCESSING TAX WOULD HAVE CREATED
DOUBLE TAXATION AND AN INEQUALITY AMONG TAXPAYERS WHICH THE
COMPENSATING FLOOR STOCK TAX HAD OBVIATED.  THE EXEMPTION OF SUBSEQUENT
DOMESTIC PROCESSING BY THE TREASURY REGULATIONS WAS THUS COMPELLED BY
THE ACT ITSELF.  CF. TREAS. REG. 82, FLOOR STOCKS UNDER THE A.A.A.  NO
SUCH PROVISION APPEARS IN THE REVENUE ACT OF 1934 OR ANY LATER
LEGISLATION SUPPLEMENTING SEC. 602 1/2.  PHRASES WITHOUT DEFINITE LEGAL
CONNOTATION WHICH ARE ALIKE TAKE THEIR MEANING FROM THEIR CONTEXT.  THE
"FIRST DOMESTIC PROCESSING" OF THE A.A.A. NATURALLY REFERS TO THE FIRST
IN POINT OF TIME TO AVOID DOUBLE TAXATION, WHILE THE SAME WORDS IN THIS
ACT JUST AS NATURALLY REFER TO THE FIRST AFTER THE ACT TO AVOID
INEQUALITIES.  DOUBLE TAXATION DOES NOT ARISE FROM THE LATER ACT. 

FOR A FURTHER POINT, PETITIONER CALLS ATTENTION TO THE ACTION OF
CONGRESS IN AMENDING SEC. 602 1/2 IN THE REVENUE ACT OF 1936, 49 STAT.
1742, BY ADDING FATTY ACIDS AND SALTS DERIVED FROM THE TAXED OILS WITH
THE PROVISO THAT THE TAX SHOULD NOT APPLY: 

"(1)  WITH RESPECT TO ANY FATTY ACID OR SALT RESULTING FROM A
PREVIOUS FIRST DOMESTIC PROCESSING TAXED UNDER THIS SECTION OR UPON
WHICH AN IMPORT TAX HAS BEEN PAID UNDER SECTION 601(C)(8) OF THE
REVENUE ACT OF 1932, AS AMENDED, OR (2) WITH RESPECT TO ANY COMBINATION
OR MIXTURE BY REASON OF ITS CONTAINING AN OIL, FATTY ACID, OR SALT WITH
RESPECT TO WHICH THERE HAS BEEN A PREVIOUS FIRST DOMESTIC PROCESSING OR
UPON WHICH AN IMPORT TAX HAS BEEN PAID UNDER SUCH SECTION 601(C)(8)." 

THIS AMENDMENT CAME FROM THE CONFERENCE COMMITTEE WITHOUT COMMENT. 
H. REP. NO. 3068, 74TH CONG., 2D SESS., P. 17.  ITS ORIGIN WAS IN THE
SENATE.  THE PURPOSE OF THE EXEMPTION WAS SAID TO BE "TO AVOID DOUBLE
TAXATION."  S. REP. NO. 2156, 74TH CONG., 2D SESS., TITLE V.
PETITIONER'S CONTENTION IS THAT "THE CONFERENCE COMMITTEE WROTE INTO
THE AMENDMENT TWO DIFFERENT CLAUSES, ONE OF THEM  ...  CREATING AN
EXEMPTION OF MIXTURES AND COMBINATIONS CONDITIONED UPON A 'PREVIOUS
FIRST DOMESTIC PROCESSING' AND THE OTHER CREATING AN EXEMPTION OF FATTY
ACIDS AND SALTS CONDITIONED UPON THEIR 'RESULTING FROM A PREVIOUS FIRST
DOMESTIC PROCESSING TAXED UNDER THIS SECTION.'"  THEREFORE, CONGRESS IS
SAID BY PETITIONER TO HAVE RECOGNIZED TWO CLASSES OF FIRST DOMESTIC
PROCESSINGS; ONE TAXED UNDER THE SECTION, THE OTHER NOT TAXED.  IN THE
ABSENCE OF SOME EXPRESSION OF SUCH INTENTION, HOWEVER, BEYOND THE WORDS
QUOTED, WE ARE NOT CONVINCED THAT THE DIFFERENCE IN LANGUAGE WAS MEANT
TO EVIDENCE A DIFFERENCE IN MEANING.  CF. HAGGAR CO. V. HELVERING, 308
U.S. 389, 400.  THE CAREFUL PROVISION REQUIRING PAYMENTS OF APPLICABLE
IMPORT TAXES UNDER ALL CONDITIONS TENDS TO THE CONTRARY CONCLUSION.  WE
THINK THE PURPOSE OF THE 1936 AMENDMENT WAS TO ADD NEW TAXABLE ARTICLES
AND TO MAKE PLAIN THE PURPOSE TO FREE THEM FROM DOUBLE TAXATION.  IF
THE ARTICLES ARE NOT EXEMPT FROM THE 3 CENT EXCISE BECAUSE OF FOREIGN
PROCESSING, WE SEE NO REASON TO EXEMPT THEM BECAUSE OF DOMESTIC
PROCESSING PRIOR TO THE ACT. 

FINALLY WE CONSIDER PETITIONER'S ARGUMENT THAT HOUSE REPORT
(CONFERENCE) NO. 1385, 73D CONG., 2D SESS., P. 30, MANIFESTS THE
INTENTION OF CONGRESS TO TAX ONLY THE "FIRST DOMESTIC PROCESSING" WHICH
OCCURS AFTER THE ACT WHEN THERE HAS BEEN NO PREVIOUS DOMESTIC
PROCESSING PRIOR TO THE ACT.  THIS REPORT DEALS WITH THE REVENUE ACT OF
1934.  THE SENATE AMENDED THE SECTION OF THE HOUSE BILL WHICH TAXED
FOREIGN OILS BY THE ADDITION OF OTHER FOREIGN VEGETABLE OILS AND MARINE
OILS.  THE CONFERENCE ACCEPTED THE AMENDMENT IN REGARD TO THE MARINE
OILS BUT CHANGED "THE POINT OF IMPOSITION OF THE TAX IN THE CASE OF
IMPORTED WHALE OIL, IMPORTED FISH OIL, AND IMPORTED MARINE ANIMAL OIL
TO THE IMPORTATION INSTEAD OF THE FIRST DOMESTIC PROCESSING."  THESE
WERE ALL THE MARINE OILS IN THE SENATE AMENDMENT. 

BY THE CONFERENCE AMENDMENT THESE MARINE OILS WERE PLACED IN AN
ENTIRELY DIFFERENT SECTION, 602, OF THE REVENUE ACT OF 1934.  IT
AMENDED 601(C), REVENUE ACT OF 1932, WHICH IMPOSED AN EXCISE TAX ON THE
DOMESTIC PRODUCER OR THE IMPORTER OF LUBRICATING OILS, GRAIN EXTRACTS,
PETROLEUM, COAL, LUMBER, ET CETERA, BY ADDING THESE MARINE OILS TO THE
TAXABLE ARTICLES.  FN3  REGULATIONS TREATED MARINE OILS UPON THE SAME
BASIS AS THE OTHER TAXED IMPORTS IN THE SECTION.  FN4  CONSEQUENTLY
MARINE OILS IMPORTED PRIOR TO THE REVENUE ACT OF 1934 ESCAPED TAXATION
WHEN EVENTUALLY PROCESSED.  THIS INEQUALITY OF TREATMENT, UNDER THE
GOVERNMENT THEORY, BETWEEN IMPORTATIONS OF VEGETABLE OILS AND
IMPORTATIONS OF MARINE OILS INDICATES, SAYS THE PETITIONER, THAT THE
GOVERNMENT IS WRONG AND CONGRESS INTENDED TO TAX PROCESSING ONLY WHEN A
PRIOR DOMESTIC PROCESSING EITHER BEFORE OR AFTER THE ACT HAD NOT
OCCURRED.  THE CONFERENCE CHANGE, SAYS PETITIONER, "WAS MERELY A SHIFT
OF THE TAX ON THESE PARTICULAR OILS FROM THE FIRST PROCESSING AFTER THE
ENTRY (THE POINT OF IMPOSITION UNDER SECTION 602 1/2) TO THE ENTRY
ITSELF."  BUT THOUGH CONGRESS MAY HAVE BEEN WILLING TO DEFER PROTECTION
OF AMERICAN PRODUCERS FROM MARINE OILS, IT NOWHERE INDICATED THAT
HANDLERS OF OTHER OILS ALREADY PROCESSED SHOULD OBTAIN A TRADE
ADVANTAGE THROUGH EXEMPTION. 

WE ARE CONFRONTED WITH AN AMBIGUITY OF PHRASE WHICH YIELDS TO THE
INTENT OF CONGRESS AS DISCLOSED BY THE LEGISLATIVE HISTORY.  IN SUCH
CIRCUMSTANCES, WE FOLLOW THE GENERAL  PURPOSE OF THE ACT TO PROMOTE THE
INTERESTS OF DOMESTIC OIL PRODUCERS THROUGH AN EXCISE TAX.  AFFIRMED. 

FN1  48 STAT. 763, SEC. 602 1/2.  PROCESSING TAX ON CERTAIN OILS. 

"(A)  THERE IS HEREBY IMPOSED UPON THE FIRST DOMESTIC PROCESSING OF
COCONUT OIL, SESAME OIL, PALM OIL, PALM KERNEL OIL, OR SUNFLOWER OIL,
OR OF ANY COMBINATION OR MIXTURE CONTAINING A SUBSTANTIAL QUANTITY OF
ANY ONE OR MORE OF SUCH OILS WITH RESPECT TO ANY OF WHICH OILS THERE
HAS BEEN NO PREVIOUS FIRST DOMESTIC PROCESSING, A TAX OF 3 CENTS PER
POUND, TO BE PAID BY THE PROCESSOR.  ...  FOR THE PURPOSES OF THIS
UNITED STATES, IN THE MANUFACTURE OR PRODUCTION OF AN ARTICLE INTENDED
FOR SALE, OF THE ARTICLE WITH RESPECT TO WHICH THE TAX IS IMPOSED, BUT
DOES NOT INCLUDE THE USE OF PALM OIL IN THE MANUFACTURE OF TIN PLATE." 

FN2  78 CONG. REC. 2785, 2793, 2930, 3007, 6311-16, 6380-95, 7246,
7976. 

FN3  48 STAT. 762, SEC. 602.  TAX ON CERTAIN OILS.    "SECTION 601(C)
OF THE REVENUE ACT OF 1932 IS AMENDED BY ADDING AT THE END THEREOF A
NEW PARAGRAPH AS FOLLOWS: 

"'(8)  WHALE OIL (EXCEPT SPERM OIL), FISH OIL (EXCEPT COD OIL, COD
LIVER OIL, AND HALIBUT-LIVER OIL), MARINE ANIMAL OIL, AND ANY
COMBINATION OR MIXTURE CONTAINING A SUBSTANTIAL QUANTITY OF ANY ONE OR
MORE OF SUCH OILS, 3 CENTS PER POUND.  THE TAX ON THE ARTICLES
DESCRIBED IN THIS PARAGRAPH SHALL APPLY ONLY WITH RESPECT TO THE
IMPORTATION OF SUCH ARTICLES AFTER THE DATE OF THE ENACTMENT OF THE
REVENUE ACT OF 1934, AND SHALL NOT BE SUBJECT TO THE PROVISIONS OF
SUBSECTION (B)(4) OF THIS SECTION (PROHIBITING DRAWBACK) OR SECTION
629(RELATING TO EXPIRATION OF TAXES).'" 

FN4  TREASURY DEPARTMENT BUREAU OF CUSTOMS CIRCULAR LETTER, NO 1202,
MAY 11, 1934; T.D. 45751; T.D. 47448. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :


















I.C.C. V. HOBOKEN R. CO., 320 U.S. 368 


NO. 43.  ARGUED NOVEMBER 9, 1943.  - DECIDED DECEMBER 6, 1943.  - 47
F.SUPP.  779, REVERSED. 


APPELLEE, A TERMINAL SWITCHING RAILROAD, MAINTAINED WITH TRUNK LINES
JOINT RATES ON TRAFFIC WHICH IT INTERCHANGED WITH (INTER ALIA)
SEATRAIN.  MUCH OF THE TRAFFIC SO INTERCHANGED MOVED ON LIGHTERAGEFREE
RATES, UNDER WHICH APPELLEE WAS OBLIGATED TO LOAD AND UNLOAD CARS AT
SHIPSIDE.  SEATRAIN OPERATED VESSELS ON WHICH IT TRANSPORTED LOADED
RAILROAD CARS.  BY SEATRAIN'S METHOD, CARS WERE LOADED ON AND UNLOADED
FROM ITS VESSELS BY MEANS OF A CRADLE; AND THE NECESSITY AND EXPENSE OF
LOADING AND UNLOADING FREIGHT TO AND FROM THE CARS, USUAL ON
INTERCHANGE WITH OTHER WATER CARRIERS, WERE ELIMINATED.  UNDER A
CONTRACT BETWEEN THEM, APPELLEE MADE PAYMENTS TO SEATRAIN IN RESPECT OF
INTERCHANGED TRAFFIC MOVING ON LIGHTERAGE-FREE RATES, THE PAYMENTS
APPROXIMATING THE COST OF UNLOADING OR LOADING FREIGHT CARS.  IN 1936
APPELLEE FILED WITH THE INTERSTATE COMMERCE COMMISSION A COMPLAINT
SEEKING AN INCREASE OF ITS DIVISIONS OF THE JOINT LIGHTERAGE-FREE RATES
AND AN ADJUSTMENT WITH RESPECT TO TRAFFIC MOVING ON COMMISSION
PRESCRIBED RATES SUBSEQUENT TO THE FILING OF THE COMPLAINT, SO AS TO
COMPENSATE IT FOR ITS CONTRACT PAYMENTS TO SEATRAIN.  THE COMMISSION
FOUND THAT APPELLEE'S DIVISIONS WITH THE PAYMENTS TO SEATRAIN EXCLUDED
WERE "NOT UNJUST, UNREASONABLY LOW, INEQUITABLE, OR UNDULY
PREJUDICIAL"; THAT THE CORRESPONDING DIVISIONS RECEIVED BY THE TRUNK
LINES WERE "NOT UNJUST, UNREASONABLY HIGH, INEQUITABLE, OR UNDULY
PREFERENTIAL OF THEM"; AND DISMISSED THE COMPLAINT.  HELD: 

1.  ALTHOUGH SEATRAIN'S SERVICE HAS SINCE FEBRUARY, 1942, BEEN
DISCONTINUED, THE COMPLAINT SOUGHT ADJUSTMENT OF DIVISIONS RECEIVED ON
COMMISSION-PRESCRIBED RATES SUBSEQUENT TO ITS FILING, AND TO THAT
EXTENT AT LEAST THE CASE IS NOT MOOT.  P. 376. 

2.  THE COMMISSION'S FINDINGS THAT APPELLEE'S TRANSPORTATION SERVICE
WITH RESPECT TO CARLOAD FREIGHT INTERCHANGED WITH SEATRAIN BEGINS AND
ENDS AT SEATRAIN'S CRADLE; THAT THE RAIL LINES PERFORM THE INTERCHANGE
TRANSPORTATION SERVICE COVERED BY THEIR TARIFFS "WHEN THEY PLACE THE
CARS IN OR TAKE THEM FROM THE SEATRAIN CRADLE"; AND THAT CONSEQUENTLY
THE PAYMENTS MADE BY APPELLEE TO SEATRAIN "COVER NO PART OF ITS
TRANSPORTATION SERVICE UNDER THE LIGHTERAGE-FREE RATES AND ARE IN
ADDITION TO THE FULL COSTS OF THAT SERVICE," ARE SUPPORTED BY
EVIDENCE.  P. 377. 

3.  THE COMMISSION'S DETERMINATION OF THE POINT IN TIME AND SPACE AT
WHICH A CARRIER'S TRANSPORTATION SERVICE BEGINS OR ENDS IS AN
ADMINISTRATIVE FINDING WHICH, IF SUPPORTED BY EVIDENCE, IS CONCLUSIVE
ON THE COURTS.  P. 378. 

4.  APPELLEE IS ENTITLED TO RECEIVE BY WAY OF DIVISIONS ONLY ITS JUST
AND EQUITABLE SHARE OF THE PROCEEDS OF THE JOINT RAIL TRANSPORTATION
SERVICE RENDERED, AND CAN NOT CLAIM AS A PART OF ITS SHARE THE COSTS OF
A SERVICE WHICH IS NOT A PART OF THE RAIL SERVICE CALLED FOR BY THE
JOINT RATES.  P. 379. 

5.  FROM THE COMMISSION'S FINDING THAT THE LOADING AND UNLOADING OF
ITS VESSELS IS INCIDENT TO SEATRAIN'S TRANSPORTATION SERVICE, IT
FOLLOWS THAT SEATRAIN IS ENTITLED TO COMPENSATION THEREFOR IN ITS
TARIFFS, WHICH IF INADEQUATE MAY BE INCREASED, RATHER THAN THROUGH
PARTICIPATION, BY WAY OF ALLOWANCES PAID TO IT BY APPELLEE, IN THE
PROCEEDS OF A JOINT RAIL SERVICE OF WHICH IT PERFORMS NO PART.  P.
379. 

6.  WHETHER THE PAYMENTS TO SEATRAIN INDUCED THE PERFORMANCE OF AN
INTERCHANGE SERVICE RESULTING IN SAVINGS TO THE RAIL CARRIERS IS
IRRELEVANT TO A DETERMINATION OF DIVISIONS OF THE JOINT RATES FOR THE
RAIL SERVICE OF WHICH THE SHIP LOADING AND UNLOADING SERVICE PERFORMED
BY SEATRAIN IS NOT A PART.  P. 380. 

7.  SECTION 15(6) OF THE INTERSTATE COMMERCE ACT, WHICH AUTHORIZES
THE DIVISION OF JOINT RATES APPLICABLE TO A TRANSPORTATION SERVICE,
CONTEMPLATES ONLY THE APPORTIONMENT OF THE PROCEEDS OF THAT SERVICE
AMONG THE PARTIES TO IT AND NOT THE COMPENSATION OF OTHERS FOR A
SERVICE NOT COVERED BY THE JOINT RATES TO BE DIVIDED.  P. 380. 

8.  PRESCRIPTION BY THE INTERSTATE COMMERCE COMMISSION OF DIVISIONS
OF JOINT RATES IS NOT A MERE PARTITION OF PROPERTY, BUT IS AN ASPECT OF
THE GENERAL RATE POLICY WHICH CONGRESS HAS DIRECTED THE COMMISSION TO
ESTABLISH AND ADMINISTER IN THE PUBLIC INTEREST.  AT LEAST WHERE THE
COMMISSION PRESCRIBES FOR THE COMPLAINING PARTY A FAIR RETURN FOR THE
TRANSPORTATION SERVICE WHICH IT RENDERS, THE QUESTION AS TO WHAT IS A
PROPER DIVISION IS ONE FOR THE COMMISSION'S DISCRETION, REVIEWABLE ONLY
FOR UNREASONABLENESS, DEPARTURE FROM STATUTORY STANDARDS, OR LACK OF
EVIDENTIARY SUPPORT.  P. 381. 

9.  THE COMMISSION'S DETERMINATIONS OF RATE POLICY IN THIS CASE CAN
NOT BE SET ASIDE AS ARBITRARY OR AS RESULTING IN UNJUST DIVISIONS.  P.
382. 

10.  THE COMMISSION'S REFUSAL TO INCLUDE IN APPELLEE'S DIVISIONS
PAYMENTS WHICH WERE VOLUNTARILY MADE TO SEATRAIN DOES NOT CONSTITUTE
CONFISCATION OF APPELLEE'S PROPERTY.  P. 382. 

INTERSTATE COMMERCE COMMISSION ET AL. V. HOBOKEN MANUFACTURERS'
RAILROAD CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEW JERSEY. 

APPEAL FROM A JUDGMENT OF A DISTRICT COURT OF THREE JUDGES SETTING
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL UNDER 28 U.S.C. SECS. 47A, 345, FROM A JUDGMENT BY
WHICH THE DISTRICT COURT FOR NEW JERSEY, THREE JUDGES SITTING, SET
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, 47 F.SUPP.  779. 

THE QUESTION IS WHETHER APPELLEE, A TERMINAL SWITCHING RAIL CARRIER,
IS ENTITLED TO AN INCREASE IN THE DIVISIONS WHICH IT NOW RECEIVES OUT
OF JOINT CLASS AND COMMODITY FREIGHT RATES MAINTAINED BY IT AND
NUMEROUS TRUNK LINE CARRIERS, APPELLANTS HERE, ON TRAFFIC INTERCHANGED
BY APPELLEE AT HOBOKEN, NEW JERSEY, WITH SEATRAIN LINES, INC., A COMMON
CARRIER BY WATER.  THE ANSWER DEPENDS UPON WHETHER THE COMMISSION IS
REQUIRED TO TREAT AS PART OF APPELLEE'S COSTS OF PERFORMING ITS CARRIER
SERVICE AS PRESCRIBED BY THE JOINT RATES, ALLOWANCES PAID BY APPELLEE
FOR SERVICES PERFORMED BY SEATRAIN IN EFFECTING THE INTERCHANGE.  THE
COMMISSION'S ORDER DISMISSED A COMPLAINT BY WHICH APPELLEE SOUGHT TO
HAVE THE COMMISSION PRESCRIBE FOR IT INCREASED DIVISIONS.  234 I.C.C.
114.  THE ORDER, REVIEWABLE BY THE DISTRICT COURT, IS REVIEWABLE BY
THIS COURT ON APPEAL.  ALTON R. CO. V. UNITED STATES, 287 U.S. 229, 237
40; BALTIMORE & OHIO R. CO. V. UNITED STATES, 298 U.S. 349, 358;
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 142. 

APPELLEE, HOBOKEN MANUFACTURERS' RAILROAD COMPANY, OPERATES A
TERMINAL SWITCHING LINE EXTENDING ALONG THE WATERFRONT OF HOBOKEN, NEW
JERSEY, FOR A DISTANCE OF 1.632 MILES.  IT CONNECTS WITH THE ERIE
RAILROAD AND OVER IT WITH OTHER TRUNK LINES REACHING NEW YORK HARBOR. 
NUMEROUS PIERS ON NEW YORK HARBOR ARE SERVED BY HOBOKEN, AT WHICH THE
VESSELS OF VARIOUS STEAMSHIP LINES REGULARLY DOCK, INCLUDING THOSE OF
SEATRAIN. 

SEATRAIN IS A COMMON CARRIER BY WATER, SUBJECT TO THE COMMISSION'S
JURISDICTION UNDER SEC. 1(1A) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C.
SEC. 1(1A), BY REASON OF ITS CONTROL OF HOBOKEN.  INVESTIGATION OF
SEATRAIN LINES, INC., 195 I.C.C. 215, 206 I.C.C. 328.  SINCE 1932 IT
HAS OPERATED VESSELS IN WHICH IT TRANSPORTS FREIGHT IN LOADED RAILROAD
CARS BETWEEN HOBOKEN, NEW JERSEY, HAVANA, CUBA, AND BELLE CHASSE,
LOUISIANA, A POINT ON THE MISSISSIPPI RIVER NEAR NEW ORLEANS.  THE
LOADED CARS WHICH IT TRANSPORTS ARE PLACED UPON STANDARD GAUGE RAILROAD
TRACKS LOCATED UPON FOUR DECKS OF THE SEATRAIN VESSELS.  IN LOADING THE
VESSEL, EACH CAR IS SWITCHED ONTO A TRACK LOCATED ON A CRADLE PLACED
ALONGSIDE THE VESSEL.  AN OVERHEAD CRANE LIFTS THE CRADLE CONTAINING
THE CAR, SWINGS IT OVER THE VESSEL AND LOWERS IT THROUGH A HATCH TO THE
APPROPRIATE DECK WHERE THE CAR IS MOVED ONTO ONE OF THE RAILROAD TRACKS
ON THE DECK. 

IN UNLOADING THE PROCEDURE IS REVERSED.  EACH CAR IS MOVED FROM THE
DECK TRACK ONTO THE CRADLE.  THE CRADLE CONTAINING THE CAR IS THEN
LIFTED BY THE CRANE AND PLACED ON THE DOCK ALONGSIDE THE VESSEL WHERE
THE CAR IS SWITCHED BY HOBOKEN OVER ITS OWN TRACKS TO A CONNECTING
TRUNK LINE OVER WHICH IT PROCEEDS TO ITS RAIL DESTINATION.  BY THIS
OPERATION THE EXPENSE IS AVOIDED OF LOADING AND UNLOADING FREIGHT INTO
AND FROM THE CARS AT SHIPSIDE, ORDINARILY INCIDENT TO EXCHANGE OF
TRAFFIC BETWEEN RAIL AND WATER CARRIERS. 

IN 1932 SEATRAIN SECURED CONTROL OF HOBOKEN BY THE ACQUISITION OF ALL
OF ITS SHARES OF CAPITAL STOCK EXCEPT THE QUALIFYING SHARES OF FIVE
DIRECTORS, AND THE TWO CORPORATIONS WERE BROUGHT UNDER THE MANAGEMENT
OF COMMON OFFICERS.  IN 1936 HOBOKEN FILED A COMPLAINT WITH THE
INTERSTATE COMMERCE COMMISSION UNDER SECS. 1(4) AND 15(6) ALLEGING THAT
THE DIVISIONS IT WAS RECEIVING OUT OF JOINT CLASS AND COMMODITY RATES
MAINTAINED BY IT AND THE TRUNK LINES, APPELLANTS HERE, ON CARLOAD RAIL
TRAFFIC INTERCHANGED WITH SEATRAIN WERE TOO LOW, AND ASKING AN
INCREASE.  IT ALSO SOUGHT ADJUSTMENT OF ALL DIVISIONS WITH RESPECT TO
SUCH TRAFFIC MOVING UNDER RATES PRESCRIBED BY THE COMMISSION SUBSEQUENT
TO THE DATE OF FILING THE COMPLAINT. 

PART OF THE TRAFFIC INTERCHANGED WITH SEATRAIN MOVES ON SO-CALLED
LIGHTERAGE-FREE RATES, AND PART ON NON-LIGHTERAGE-FREE RATES.  UNDER
THE LIGHTERAGE-FREE RATES THE RAIL CARRIERS OBLIGATE THEMSELVES TO
PLACE FREIGHT WITHIN REACH OF SHIP'S TACKLE, AND TO RECEIVE FREIGHT AT
THE FOOT OF SHIP'S TACKLE - AN OBLIGATION WHICH NORMALLY REQUIRES
UNLOADING AND LOADING OF CARS AND MAY ALSO REQUIRE LIGHTERAGE AND
VARIOUS OTHER SERVICES.  HOBOKEN HAS GENERALLY PROVIDED FOR THIS
LOADING AND UNLOADING SERVICE BY CONTRACT WITH THE STEAMSHIP COMPANIES
WITH WHICH IT INTERCHANGES TRAFFIC.  THE WORK IS DONE WITH STEAMSHIP
STEVEDORE LABOR FOR WHICH HOBOKEN HAS PAID THE STEAMSHIP COMPANIES AT
THE RATE OF APPROXIMATELY 75 CENTS A TON.  UNDER NON-LIGHTERAGE-FREE
RATES THE SHIPPER PERFORMS OR PROVIDES FOR NECESSARY LOADING OR
UNLOADING OF CARS, IN WHICH CASE HOBOKEN HAS ONLY A SWITCHING SERVICE
TO PERFORM. 

ON CARLOAD TRAFFIC INTERCHANGED WITH WATER CARRIERS OTHER THAN
SEATRAIN'S AND MOVING ON LIGHTERAGE-FREE RATES, WHICH IS LOADED OR
UNLOADED BY HOBOKEN OR AT ITS EXPENSE, HOBOKEN'S DIVISION OF THE JOINT
THROUGH RATE HAS BEEN $1.35 PER TON.  ON CARLOAD TRAFFIC MOVING TO AND
FROM HOBOKEN ON NON-LIGHTERAGE-FREE RATES, WHICH IS LOADED OR UNLOADED
BY THE SHIPPER OR CONSIGNEE OR AT HIS EXPENSE, HOBOKEN'S DIVISION HAS
BEEN 60 CENTS PER TON.  FN1 

SINCE NOVEMBER, 1932, WHICH WAS SHORTLY AFTER SEATRAIN ACQUIRED STOCK
OWNERSHIP CONTROL OF HOBOKEN, IT HAS PAID TO SEATRAIN A TONNAGE
ALLOWANCE ON INTERCHANGED FREIGHT OTHER THAN COAL.  AT FIRST 40 CENTS A
TON, THE ALLOWANCE ON LIGHTERAGE-FREE FREIGHT WAS, IN 1937, INCREASED
TO 73 CENTS A TON, WHICH IS THE APPROXIMATE COST OF LOADING OR
UNLOADING CARLOAD FREIGHT.  AT THE SAME TIME THE 40 CENTS ALLOWANCE ON
NON-LIGHTERAGE-FREE FREIGHT WAS ABOLISHED.  UPON SEATRAIN FREIGHT
MOVING ON LIGHTERAGE-FREE RATES, THE TRUNK LINES ACCORD TO HOBOKEN A 60
CENTS PER TON SWITCHING DIVISION, THE SAME AS FOR FREIGHT MOVING ON NON
LIGHTERAGE-FREE RATES, SINCE WITH THE ONE AS WITH THE OTHER THERE IS NO
NECESSITY FOR THE CAR LOADING SERVICE. 

IN THE PROCEEDINGS BEFORE THE COMMISSION HOBOKEN ASKED FOR THE
EXISTING DIVISION OF 60 CENTS PER TON OUT OF NON-LIGHTERAGE-FREE RATES
AND FOR AN INCREASE TO $1.35 PER TON IN ITS DIVISION OUT OF LIGHTERAGE
FREE RATES ON TRAFFIC INTERCHANGED WITH SEATRAIN, ON THE GROUND THAT
ITS TONNAGE ALLOWANCES TO SEATRAIN ARE A PART OF ITS COSTS OF
PERFORMING ITS RAIL TRANSPORTATION SERVICE WITH RESPECT TO THE SEATRAIN
TRAFFIC, AND THAT IN ANY CASE THE TRUNK LINES, PARTIES TO THE JOINT
RATES, ARE BENEFITED BY SEATRAIN'S SHIPLOADING DEVICES TO THE EXTENT
THAT THE RAIL CARRIERS ARE RELIEVED OF THE 75 CENTS PER TON LOADING AND
UNLOADING CHARGE WHICH THEY WOULD OTHERWISE INCUR. 

THE COMMISSION RENDERED ITS REPORT AFTER A FULL HEARING AT WHICH
EVIDENCE WAS TAKEN.  FN2  IT FOUND FROM THE EVIDENCE THAT SEATRAIN HAD
ESTABLISHED ITS SHIPLOADING DEVICES AT LARGE EXPENSE AND HAD BY THEIR
ADOPTION MADE UNNECESSARY, IN THE INTERCHANGE OF TRAFFIC WITH SEATRAIN,
THE LOADING AND UNLOADING OF THE CARS AT SHIPSIDE, WHICH WOULD
OTHERWISE BE REQUIRED BY THE LIGHTERAGE-FREE TARIFFS; THAT IN EFFECTING
THE INTERCHANGE "THE RAIL LINES DO ALL THAT IS REQUIRED WHEN THEY PLACE
THE CARS IN OR TAKE THEM FROM THE SEATRAIN CRADLE"; AND THAT "THE
PAYMENTS WHICH COMPLAINANT MAKES TO SEATRAIN COVER NO PART OF ITS
TRANSPORTATION SERVICE UNDER THE LIGHTERAGE-FREE RATES AND ARE IN
ADDITION TO THE FULL COSTS OF THAT SERVICE." 

THE COMMISSION RECOGNIZED THAT IF THE PAYMENTS BY HOBOKEN TO SEATRAIN
ARE NOT BORNE IN PART BY THE RAIL LINES THROUGH A DECREASE IN THEIR
DIVISIONS AND A CORRESPONDING INCREASE IN HOBOKEN'S DIVISIONS "THEY
WILL RECEIVE AN UNEARNED BENEFIT" SINCE, BY REASON OF SEATRAIN'S
SHIPLOADING METHOD, THEY ARE RELIEVED OF THE NECESSITY OF COMPENSATING
HOBOKEN FOR PERFORMANCE OF THE LOADING AND UNLOADING SERVICE ORDINARILY
CALLED FOR BY THEIR LIGHTERAGE-FREE TARIFFS.  IT POINTED OUT, HOWEVER,
THAT LIGHTERAGE-FREE RATES "ARE BASED ON AVERAGE CONDITIONS," AND SAID
THAT IF A STEAMSHIP LINE NOW DOCKING ON THE NEW YORK WATERFRONT AND
SERVED BY LIGHTER AT THE NEW JERSEY RAIL CARRIERS' EXPENSE SHOULD SHIFT
TO A DOCK WITH DIRECT RAIL CONNECTIONS ON THE NEW JERSEY SHORE A
SIMILAR UNEARNED BENEFIT WOULD RESULT; YET "IT WOULD HARDLY BE
SUGGESTED" THAT THE RAIL CARRIERS SHOULD COMPENSATE THE STEAMSHIP
COMPANY FOR THE SHIFT.  MOREOVER IT FOUND NO EVIDENCE THAT THE PAYMENTS
WERE NECESSARY TO INDUCE SEATRAIN TO FURNISH ITS SHIPLOADING SERVICE. 
IT STATED THAT HOBOKEN'S CONTRACT WITH SEATRAIN WAS NOT SUCH EVIDENCE
IN VIEW OF SEATRAIN'S CONTROL OF HOBOKEN; THAT IT DID NOT APPEAR THAT
SEATRAIN RECEIVED SUCH PAYMENTS FROM ANY INDEPENDENT RAIL CONNECTION;
AND THAT SEATRAIN'S METHOD OF TRANSFER BY WHICH IT RECEIVES AND
DELIVERS LOADED CARS HAS SUFFICIENT ADVANTAGES TO IMPEL ITS USE BY
SEATRAIN REGARDLESS OF CONTRIBUTING PAYMENTS BY ITS RAIL CONNECTIONS. 

IT CONCLUDED THAT SEATRAIN'S IMPROVED METHOD OF TRANSFER IS ONLY AN
INCIDENT TO ITS PLAN OF TRANSPORTATION, THAT THE TRANSFER IS
CONSEQUENTLY NOT A NECESSARY PART OF THE RAIL TRANSPORTATION SERVICE
AND THAT HOBOKEN IS ADEQUATELY COMPENSATED FOR ITS PART IN THAT SERVICE
WITHOUT INCLUDING THE PAYMENTS TO SEATRAIN IN ITS DIVISIONS.  THE
COMMISSION ACCORDINGLY FOUND THAT HOBOKEN'S DIVISIONS WITH THE PAYMENTS
TO SEATRAIN EXCLUDED "ARE NOT UNJUST, UNREASONABLY LOW, INEQUITABLE, OR
UNDULY PREJUDICIAL" AND THAT THE CORRESPONDING DIVISIONS RECEIVED BY
THE TRUNK LINES "ARE NOT UNJUST, UNREASONABLY HIGH, INEQUITABLE, OR
UNDULY PREFERENTIAL OF THEM," AND ORDERED HOBOKEN'S COMPLAINT
DISMISSED. 

THE DISTRICT COURT SUSTAINED THE COMMISSION'S FINDINGS THAT HOBOKEN'S
RAIL TRANSPORTATION SERVICE BEGINS AND ENDS AT SEATRAIN'S CRADLE, AND
THAT THE PAYMENTS BY HOBOKEN TO SEATRAIN "DO NOT CONSTITUTE A
LEGITIMATE TRANSPORTATION COST," AND HELD THAT UPON THESE FINDINGS
"SUPPORTED BY EVIDENCE" THE COMMISSION'S "JUDGMENT IS FINAL."  BUT IT
THOUGHT THAT EVEN THOUGH THE CONTRACT PAYMENTS SHOULD BE DISREGARDED
HOBOKEN MIGHT BE OBLIGATED TO PAY TO SEATRAIN THE REASONABLE VALUE TO
IT OF THE USE OF THE SEATRAIN METHOD OF INTERCHANGE, AND THAT IF THAT
USE WERE FOUND TO HAVE NO VALUE, AT LEAST ANY "WINDFALL" RESULTING TO
THE RAIL CARRIERS AS A WHOLE SHOULD BE DIVIDED EQUITABLY AMONG THEM. 

THE DISTRICT COURT ACCORDINGLY SET THE COMMISSION'S ORDER ASIDE AND
REMANDED THE CAUSE TO THE COMMISSION, DIRECTING IT TO CONSIDER WHETHER
THE SEATRAIN DEVICES "ARE AN EFFICIENT AID TO RAILROAD TRANSPORTATION";
IF IT FOUND THAT THEY WERE, TO EVALUATE THEIR WORTH TO HOBOKEN AND TO
INCLUDE IN HOBOKEN'S COSTS THE AMOUNT OF A LEGITIMATE PAYMENT FOR THEIR
USE; AND IF IT FOUND THAT THEY WERE NOT, TO DETERMINE WHETHER ANY
WINDFALL TO THE RAIL CARRIERS RESULTED FROM THEIR USE AND TO ESTABLISH
AN EQUITABLE BASIS FOR ITS DIVISION AMONG THE RAIL CARRIERS.  THE
COMMISSION HAS BROUGHT THE CASE HERE ON ASSIGNMENTS OF ERROR
CHALLENGING THE DISTRICT COURT'S DETERMINATION THAT COMPENSATION FOR
ANY PART OF HOBOKEN'S PAYMENTS TO SEATRAIN SHOULD HAVE BEEN INCLUDED IN
HOBOKEN'S DIVISIONS. 

THE COMMISSION, UPON COMPLAINT OR ON ITS OWN MOTION, DETERMINES THAT
THE DIVISIONS OF JOINT RATES APPLICABLE TO THE TRANSPORTATION OF
PASSENGERS OR PROPERTY, "ARE OR WILL BE UNJUST, UNREASONABLE,
INEQUITABLE, OR UNDULY PREFERENTIAL OR PREJUDICIAL" AS BETWEEN CARRIERS
PARTIES TO SUCH RATES, "THE COMMISSION SHALL BY ORDER PRESCRIBE THE
JUST, REASONABLE, AND EQUITABLE DIVISIONS THEREOF TO BE RECEIVED BY THE
SEVERAL CARRIERS."  IN CASES WHERE THE JOINT RATE HAS BEEN ESTABLISHED
PURSUANT TO A FINDING OR ORDER OF THE COMMISSION, IT MAY ALSO DETERMINE
AND ORDER JUST AND REASONABLE DIVISIONS FOR THE PERIOD SUBSEQUENT TO
THE FILING OF THE COMPLAINT "AND REQUIRE ADJUSTMENT TO BE MADE" IN
ACCORDANCE WITH ITS DETERMINATION. 

AT THE OUTSET IT IS NECESSARY TO CONSIDER THE SUGGESTION THAT THE
CASE MAY HAVE BECOME MOOT BY REASON OF THE FACT THAT SINCE FEBRUARY,
1942, SEATRAIN'S VESSELS HAVE BEEN IN GOVERNMENT SERVICE AND SEATRAIN'S
SERVICE HAS BEEN DISCONTINUED.  WE MAY ASSUME THAT THE RESUMPTION OF
THE SERVICE IS SO UNCERTAIN AS TO RENDER IT CONJECTURAL WHETHER THE
COMMISSION'S PRESENT DETERMINATION WILL BE GIVEN ANY FUTURE OPERATION. 
BUT THAT DETERMINATION UNDER SEC. 15(6) IS DECISIVE OF APPELLEE'S
REQUEST FOR ADJUSTMENT OF THE DIVISIONS OF JOINT RATES PRESCRIBED BY
THE COMMISSION WHICH HAVE BEEN COLLECTED SINCE THE BEGINNING OF THE
PRESENT PROCEEDING.  BRIMSTONE RAILROAD & CANAL CO. V. UNITED STATES,
276 U.S. 104, 121-3.  WHILE THE PRESENT RECORD DOES NOT DISCLOSE THE
FULL EXTENT TO WHICH JOINT RATES, DIVISIONS OF WHICH ARE HERE SOUGHT,
WERE PRESCRIBED BY THE COMMISSION, IT DOES APPEAR THAT THE COMMISSION
HAS IN PRIOR PROCEEDINGS PRESCRIBED JOINT RAIL-WATER-RAIL RATES BETWEEN
EASTERN TRUNK LINE AND NEW ENGLAND TERRITORIES AND SOUTHWESTERN
TERRITORY APPLICABLE OVER SEATRAIN LINES, TO WHICH HOBOKEN, SEATRAIN,
AND MOST IF NOT ALL OF THE TRUNK LINES WHICH ARE APPELLANTS HERE ARE
PARTIES.  SEATRAIN LINES V. AKRON, C. & Y. RY. CO., 226 I.C.C. 7, 243
I.C.C. 199.  AS TO THEM DECISION OF THIS CASE CONTROLS THE DIVISION OF
RATES FOR THE PERIOD SINCE APPELLEE'S COMPLAINT WAS FILED WITH THE
COMMISSION.  TO THAT EXTENT AT LEAST THE CASE IS NOT MOOT.    APART
FROM THE COMMISSION'S EXCLUSION OF HOBOKEN'S TONNAGE ALLOWANCES TO
SEATRAIN, WE HAVE NO OCCASION TO CONSIDER THE SUFFICIENCY OF THE
PRESENT DIVISIONS TO HOBOKEN.  THE COMMISSION FOUND, UPON ABUNDANT
EVIDENCE, THAT THEY "ARE SUFFICIENT TO COVER THE COST OF THE SERVICE
PERFORMED BY COMPLAINANT AND ALSO A REASONABLE RETURN ON THE PROPERTY
OWNED OR USED BY IT IN PERFORMING SUCH SERVICE."  AND APPELLEE CONCEDED
BEFORE THE COMMISSION THAT IF THE PAYMENTS TO SEATRAIN ARE NOT TO BE
CONSIDERED A PART OF APPELLEE'S COSTS THE DIVISIONS ARE ADEQUATE AND
"WE ARE NOT ENTITLED TO ANYTHING MORE." 

AS ESSENTIAL STEPS IN DETERMINING WHETHER HOBOKEN'S PAYMENTS TO
SEATRAIN ARE A PART OF THE RAIL TRANSPORTATION COSTS, WE THINK THE
COURT BELOW CORRECTLY SUSTAINED THE COMMISSION'S FINDINGS THAT
HOBOKEN'S TRANSPORTATION SERVICE WITH RESPECT TO CARLOAD FREIGHT
INTERCHANGED WITH SEATRAIN BEGINS AND ENDS AT SEATRAIN'S CRADLES; THAT
THE RAIL LINES PERFORM THE INTERCHANGE TRANSPORTATION SERVICE COVERED
BY THEIR TARIFFS "WHEN THEY PLACE THE CARS IN OR TAKE THEM FROM THE
SEATRAIN CRADLE"; AND THAT CONSEQUENTLY THE ALLOWANCES PAID BY HOBOKEN
"COVER NO PART OF ITS TRANSPORTATION SERVICE UNDER THE LIGHTERAGE-FREE
RATES AND ARE IN ADDITION TO THE FULL COSTS OF THAT SERVICE."  THESE
FINDINGS WERE BASED UPON AN EXTENSIVE EXAMINATION OF THE METHOD OF
INTERCHANGE OF FREIGHT BETWEEN RAIL AND WATER CARRIERS GENERALLY AND
BETWEEN HOBOKEN AND SEATRAIN.  IT IS NOT AND COULD NOT BE SERIOUSLY
CONTENDED THAT THEY ARE UNSUPPORTED BY EVIDENCE. 

WE ARE OF OPINION THAT THESE FINDINGS ARE DECISIVE OF THIS APPEAL. 
THE COMMISSION'S DETERMINATION OF THE POINT IN TIME AND SPACE AT WHICH
A CARRIER'S TRANSPORTATION SERVICE BEGINS OR ENDS IS AN ADMINISTRATIVE
FINDING WHICH, IF SUPPORTED BY EVIDENCE, IS CONCLUSIVE ON THE COURTS. 
LOS ANGELES SWITCHING CASE, 234 U.S. 294, 311-14; UNITED STATES V.
AMERICAN SHEET & TIN PLATE CO., 301 U.S. 402, 408; UNITED STATES V. PAN
AMERICAN PETROLEUM CORP., 304 U.S. 156, 158; BALTIMORE & OHIO R. CO. V.
UNITED STATES, 305 U.S. 507, 525-6; SWIFT & CO. V. UNITED STATES, 316
U.S. 216, 222-5 AND CASES CITED.  IN THE TIN PLATE AND PAN AMERICAN
CASES THIS COURT SUSTAINED THE COMMISSION'S ORDER PROHIBITING, AS IN
VIOLATION OF SEC. 6(7) OF THE ACT, PAYMENT OF ALLOWANCES TO AN INDUSTRY
BY RAIL CARRIERS FOR SPOTTING CARS ON ITS INDUSTRIAL TRACKS.  THE COURT
ACCEPTED AS CONTROLLING THE COMMISSION'S FINDINGS THAT UNDER PREVAILING
CONDITIONS AND PRACTICE THE INTERCHANGE TRACKS OF THE INDUSTRY WERE
CONVENIENT AND USUAL POINTS FOR THE RECEIPT AND DELIVERY OF THE
INTERCHANGED CARS, THAT THE RAIL LINE-HAUL SERVICE ACCORDINGLY ENDED
THERE AND THAT FOR THAT REASON THE INDUSTRY PERFORMED NO SERVICE IN
SPOTTING CARS ON ITS OWN TRACKS FOR WHICH THE RAIL CARRIER WAS
COMPENSATED UNDER ITS LINE-HAUL TARIFFS AND FOR WHICH THE INDUSTRY WAS
ENTITLED TO BE COMPENSATED BY ALLOWANCES OUT OF THE LINE-HAUL CHARGES. 

THE SAME PRINCIPLES APPLY IN PRESCRIBING DIVISIONS OF JOINT RAIL
CARRIER CHARGES WHERE, INDEPENDENTLY OF CONSIDERATIONS NOT PRESENT
HERE, THE MEASURE OF THE CARRIER'S PARTICIPATION IN THE JOINT
TRANSPORTATION SERVICE IS THE MEASURE OF ITS DIVISIONS OF THE JOINT
TRANSPORTATION CHARGES, NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 195;
UNITED STATES V. ABILENE & SOUTHERN RY. CO., 265 U.S. 274, 284;
BALTIMORE & OHIO R. CO. V. UNITED STATES, SUPRA, 360-62; SHARFMAN,
INTERSTATE COMMERCE COMMISSION, VOL. III-B, PP. 287-8, AND THE CARRIER
IS ENTITLED TO "JUST COMPENSATION ONLY FOR WHAT IT ACTUALLY DOES," TAP
LINE CASES, 234 U.S. 1, 29; CF. LOUISIANA & PINE BLUFF RY. CO. V.
UNITED STATES, 257 U.S. 114, 118. 

HERE THE COMMISSION WAS CONCERNED WITH THE DIVISIONS OF JOINT RAIL
RATES WHICH COVERED THE RAIL CARRIER SERVICE BETWEEN INLAND POINTS OF
RAIL SHIPMENT OR DESTINATION AND THE POINT OF INTERCHANGE AT HOBOKEN. 
THE COMMISSION HAS FOUND THAT THIS POINT IS THE SEATRAIN CRADLE AT
SHIPSIDE, AND THAT THE SERVICE RENDERED BY SEATRAIN IN LOADING AND
UNLOADING THE LOADED FREIGHT CARS UPON AND FROM ITS VESSELS IS NO PART
OF THE RAIL CARRIER SERVICE WITH RESPECT TO WHICH DIVISIONS ARE HERE
SOUGHT.  CONSEQUENTLY NEITHER HOBOKEN NOR SEATRAIN IS ENTITLED TO
COMPENSATION OUT OF THE JOINT RAIL HAUL CHARGES FOR THE SHIP LOADING
AND UNLOADING SERVICE.  SINCE HOBOKEN IS ENTITLED TO RECEIVE BY WAY OF
DIVISIONS ONLY ITS JUST AND EQUITABLE SHARE OF THE PROCEEDS OF THE
JOINT RAIL TRANSPORTATION SERVICE RENDERED, IT CANNOT CLAIM AS A PART
OF ITS SHARE THE COSTS OF A SERVICE WHICH IS NOT A PART OF THE RAIL
SERVICE CALLED FOR BY THE JOINT RATES.  NEITHER THE JOINT RATES OF THE
RAIL CARRIERS NOR THE RATES OF SEATRAIN ARE HERE UNDER ATTACK AND
PRESUMPTIVELY THEY YIELD ADEQUATE BUT NOT EXCESSIVE COMPENSATION FOR
THE TRANSPORTATION SERVICES RENDERED UNDER THEM.  BEAUMONT, S.L. & W.
RY. CO. V. UNITED STATES, 282 U.S. 74, 90; BALTIMORE & OHIO R. CO. V.
UNITED STATES, SUPRA, 356. 

FROM THESE FINDINGS OF THE COMMISSION, AND ITS FURTHER FINDING THAT
THE INTERCHANGE SERVICE RENDERED BY SEATRAIN IS INCIDENT TO SEATRAIN'S
TRANSPORTATION SERVICE, IT WOULD SEEM TO FOLLOW THAT SEATRAIN IS
ENTITLED TO COMPENSATION FOR IT AS SUCH, AND PRESUMABLY IS SO
COMPENSATED BY ITS TARIFFS.  IF THE COMPENSATION IS INADEQUATE THE
REMEDY LIES IN AN INCREASE IN SEATRAIN'S RATES OR IN ITS DIVISIONS OF
JOINT RAIL AND WATER TRANSPORTATION RATES - FOR WHICH IT HAS AN
APPLICATION PENDING BEFORE THE COMMISSION, SEATRAIN LINES V. AKRON,
CANTON & YOUNGSTOWN RY. CO., NO. 28668, FILED MAY 22, 1941 - RATHER
THAN IN ITS PARTICIPATION, BY WAY OF ALLOWANCES PAID TO IT BY HOBOKEN,
IN THE PROCEEDS OF A JOINT RAIL SERVICE OF WHICH IT PERFORMS NO PART. 

HENCE THE DISTRICT COURT'S DIRECTION TO THE COMMISSION TO DETERMINE
WHAT PART OF THE VALUE OF THE INTERCHANGE SERVICE RENDERED BY SEATRAIN
SHOULD "BE ALLOWED IN ESTABLISHING HOBOKEN'S LEGITIMATE COSTS," AS AN
"AID TO RAILROAD TRANSPORTATION," IS INCONSISTENT WITH ITS CONCLUSION
THAT THE COMMISSION CORRECTLY FOUND THAT THE PAYMENTS BY HOBOKEN TO
SEATRAIN "DO NOT CONSTITUTE A LEGITIMATE TRANSPORTATION COST," AND THAT
SEATRAIN'S INTERCHANGE SERVICE IS NO PART OF THE RAIL TRANSPORTATION. 
IF THESE FINDINGS BE SUSTAINED, AS THEY MUST, INQUIRY WHETHER THE
PAYMENTS TO SEATRAIN HAVE INDUCED THE PERFORMANCE OF AN INTERCHANGE
SERVICE RESULTING IN SAVINGS TO THE RAIL CARRIERS IS IRRELEVANT TO A
DETERMINATION OF DIVISIONS OF THE JOINT RATES FOR THE RAIL SERVICE OF
WHICH THE SHIP LOADING AND UNLOADING SERVICE PERFORMED BY SEATRAIN IS
NOT A PART.  CF. LEHIGH VALLEY R. CO. V. UNITED STATES, 243 U.S. 444,
446-7. 

APPLICABLE TO A TRANSPORTATION SERVICE, CONTEMPLATES ONLY THE
APPORTIONMENT OF THE PROCEEDS OF THAT SERVICE AMONG THE PARTIES TO IT
AND NOT THE COMPENSATION OF OTHERS FOR A SERVICE NOT COVERED BY THE
JOINT RATES TO BE DIVIDED.  SEATRAIN IS NOT A PARTY TO THIS PROCEEDING
AND IT IS NOT A NECESSARY PARTY TO A PROCEEDING TO FIX DIVISIONS OF A
JOINT RAIL RATE - OR OF A PORTION OF A JOINT RAIL-WATER RATE - IN WHICH
IT DOES NOT PARTICIPATE.  UNITED STATES V. ABILENE & SOUTHERN RY. CO.,
SUPRA, 283; BEAUMONT, S.L. & W. RY. CO. V. UNITED STATES, SUPRA.  WE
ARE ACCORDINGLY NOT CONCERNED WITH THE ADEQUACY OF SEATRAIN'S TARIFFS
TO COMPENSATE FOR ITS SHIP LOADING AND UNLOADING SERVICE OR WITH THE
LAWFULNESS OF THE PAYMENTS TO IT BY HOBOKEN.  A DETERMINATION BY THE
COMMISSION OF THE EXTENT OF THE SAVING TO THE RAIL CARRIERS
ATTRIBUTABLE TO HOBOKEN'S PAYMENTS TO SEATRAIN WAS THEREFORE NOT
PREREQUISITE TO ITS ORDER PRESCRIBING DIVISIONS.  AND ITS ORDER IS
ADEQUATELY SUPPORTED BY ITS FINDINGS THAT THE RAIL TRANSPORTATION
SERVICE BEGINS AND ENDS WITH THE PLACING OF THE CARS IN SEATRAIN'S
CRADLES, AND THAT THE SHIP LOADING AND UNLOADING SERVICE FORMS NO PART
OF THE RAIL TRANSPORTATION. 

THESE FINDINGS, AS WE HAVE SEEN, ARE BASED UPON SUBSTANTIAL EVIDENCE
AND SINCE THEY ARE DISPOSITIVE OF THE CASE WE NEED NOT EXAMINE THE
EVIDENCE FURTHER TO ASCERTAIN WHETHER IT SUPPORTS THE COMMISSION'S
ADDITIONAL FINDING THAT PAYMENT OF THE ALLOWANCES TO SEATRAIN WAS NOT
NECESSARY TO INDUCE SEATRAIN TO PERFORM ITS SHIP LOADING SERVICE IN A
MANNER WHICH RESULTED IN SAVINGS TO THE RAIL CARRIERS. 

THERE IS AN ADDITIONAL REASON WHY THE CASE SHOULD NOT BE SENT BACK TO
THE COMMISSION TO RECONSIDER ITS DECISION THAT HOBOKEN SHOULD RECEIVE
NO PART OF WHATEVER WINDFALL MAY RESULT TO THE RAIL CARRIERS FROM THE
USE OF SEATRAIN'S METHOD OF LOADING AND UNLOADING.  THE PRESCRIPTION OF
DIVISIONS WHERE CARRIERS ARE UNABLE TO AGREE IS NOT A MERE PARTITION OF
PROPERTY.  IT IS ONE ASPECT OF THE GENERAL RATE POLICY WHICH CONGRESS
HAS DIRECTED THE COMMISSION TO ESTABLISH AND ADMINISTER IN THE PUBLIC
INTEREST.  NEW ENGLAND DIVISIONS CASE, SUPRA, 195; UNITED STATES V.
ABILENE & SOUTHERN RY. CO., SUPRA, 284-5; BALTIMORE & OHIO R. CO. V.
UNITED STATES, SUPRA, 358-60.  ON SUCH AN ISSUE, AT LEAST WHERE THE
COMMISSION PRESCRIBES FOR THE COMPLAINING PARTY A FAIR RETURN FOR THE
TRANSPORTATION SERVICE WHICH IT RENDERS, THE QUESTION AS TO WHAT IS A
PROPER DIVISION IS ONE FOR THE COMMISSION'S DISCRETION, REVIEWABLE ONLY
FOR UNREASONABLENESS, DEPARTURE FROM STATUTORY STANDARDS, OR LACK OF
EVIDENTIARY SUPPORT.  NEW ENGLAND DIVISIONS CASE, SUPRA, 204; BALTIMORE
& OHIO R. CO., SUPRA, 359; MISSISSIPPI VALLEY BARGE LINE CO. V. UNITED
STATES, 292 U.S. 282, 286-7; BOARD OF TRADE V. UNITED STATES, 314 U.S.
534, 546; BARRINGER & CO. V. UNITED STATES, 319 U.S. 1, 6-7. 

THE COMMISSION HAS DETERMINED THAT IT IS MORE CONSISTENT WITH THE
NATURE OF LIGHTERAGE-FREE RATES, WHICH ARE "BASED ON AVERAGE
CONDITIONS," THAT THE SWITCHING CARRIER RECEIVE ONLY FAIR COMPENSATION
FOR THE PERFORMANCE OF WHATEVER SERVICE MAY BE REQUIRED OF IT BY THE
TARIFFS AND THE METHOD OF RAIL-WATER INTERCHANGE, THAN THAT IT SHARE IN
ANY WINDFALL RESULTING FROM THE USE OF AN ECONOMICAL METHOD OF
INTERCHANGE.  AND IT STATED IN ITS REPORT THAT IN GENERAL THE DIVISIONS
OF A SHORT SWITCHING LINE SHOULD BE DETERMINED ON THE BASIS OF FULL
REMUNERATION FOR ITS SERVICES, WITHOUT REGARD TO THE LEVEL OF THE JOINT
RATES, UNLESS THEY ARE AS A WHOLE UNREMUNERATIVE.  FN3 WE CAN HARDLY
SAY THAT SUCH DETERMINATIONS OF RATE POLICY ARE ARBITRARY, OR RESULT IN
SUCH UNJUST DIVISIONS THAT THE COURT MUST SET THEM ASIDE.  CF. O'KEEFE
V. UNITED STATES, 240 U.S. 294, 303-4. 

WE NEED NOT CONSIDER WHETHER THE CONTENTION THAT THE COMMISSION'S
ORDER IS CONFISCATORY ADDS ANYTHING TO THE CONTENTION THAT THE
DIVISIONS WHICH THE COMMISSION APPROVED ARE UNJUST, UNREASONABLY LOW,
OR INEQUITABLE.  COMPARE BALTIMORE & OHIO R. CO. V. UNITED STATES,
SUPRA, 364-9 WITH ID. 383-5.  AS WE HAVE SEEN, THE CLAIM OF
CONFISCATION IS RESTRICTED TO THE COMMISSION'S REFUSAL TO ALLOW AS A
PART OF APPELLEE'S DIVISIONS THE PAYMENTS MADE BY IT TO SEATRAIN. 
THESE PAYMENTS, VOLUNTARILY MADE BY APPELLEE, WERE NOT EXACTED BY THE
COMMISSION.  THE COMMISSION'S REFUSAL TO INCLUDE THEM IN DIVISIONS OF
WHICH THEY WERE NOT LAWFULLY A PART, NOT BEING AN INFRINGEMENT OF ANY
RIGHT OF APPELLEE, IS OBVIOUSLY NOT CONFISCATION OF ITS PROPERTY.  CF.
GENERAL AMERICAN TANK CAR CORP. V. TERMINAL CO., 308 U.S. 422, 428;
LOUISIANA & PINE BLUFF RY. CO. V. UNITED STATES, SUPRA.  THE
COMMISSION'S ORDER IS SUSTAINED AND THE JUDGMENT OF THE DISTRICT COURT
SETTING IT ASIDE IS REVERSED.  REVERSED. 

FN1  THESE DIVISIONS HAVE BEEN INCREASED BY 5 OR 10%, DEPENDING ON
THE COMMODITY SHIPPED, AS A RESULT OF A GENERAL RATE INCREASE
AUTHORIZED IN FIFTEEN PERCENT CASE, 1937-1938, 226 I.C.C. 41. 

FN2  FOR PRIOR REPORTS OF THE COMMISSION DEALING WITH VARIOUS ASPECTS
OF SEATRAIN'S METHOD OF OPERATION SEE INVESTIGATION OF SEATRAIN LINES,
INC., 195 I.C.C. 215, 206 I.C.C. 328; SEATRAIN LINES V. AKRON, C. & Y.
RY. CO., 226 I.C.C. 7, 243 I.C.C. 199; HOBOKEN MFRS.  R. CO. V. ABILENE
& SOUTHERN RY. CO., 237 I.C.C. 97, 248 I.C.C. 109. 

FN3  SEE ALSO DIVISIONS OF JOINT RATES FOR TRANSPORTATION OF STONE,
41 I.C.C. 321, 328; RATES OF PEORIA & PEKIN UNION RY. CO., 93 I.C.C. 3,
22; 115 I.C.C. 469, 481-97, 501; HOBOKEN MFRS.  R. CO. V. ATCHISON, T.
& S.F. RY. CO., 132 I.C.C. 579; WESTERN M. RY. CO. V. MARYLAND & P.R.
CO., 167 I.C.C. 57, 63. 
..END :






















COLORADO V. KANSAS, 320 U.S. 383 


NO. 5, ORIGINAL.  ARGUED OCTOBER 11, 12, 1943.  - DECIDED DECEMBER 6,
1943. 


IN A SUIT INVOLVING USE OF THE WATERS OF THE ARKANSAS RIVER, BROUGHT
BY COLORADO AGAINST KANSAS AND A KANSAS USER, HELD: 

1.  COLORADO IS ENTITLED TO AN INJUNCTION AGAINST FURTHER PROSECUTION
OF SUITS BY THE KANSAS USER AGAINST COLORADO USERS.  P. 391. 

2.  KANSAS V. COLORADO, 206 U.S. 46, MADE NO ALLOCATION BETWEEN THE
STATES OF THE WATERS OF THE RIVER.  P. 391. 

3.  KANSAS IS NOT ENTITLED ON THE RECORD TO AN APPORTIONMENT IN SECOND
FEET OR ACRE-FEET.  P. 391. 

4.  IN CONTROVERSIES INVOLVING THE RELATIVE RIGHTS OF STATES, THE
BURDEN ON THE COMPLAINING STATE IS MUCH HEAVIER THAN THAT GENERALLY
REQUIRED TO BE BORNE BY PRIVATE PARTIES, AND THIS COURT WILL INTERVENE
ONLY WHERE A CASE IS FULLY AND CLEARLY PROVED.  P. 393. 

5.  KANSAS' ALLEGATIONS THAT COLORADO'S USE HAS MATERIALLY INCREASED
SINCE THE DECISION IN KANSAS V. COLORADO, AND THAT THE INCREASE HAS
WORKED A SERIOUS DETRIMENT TO THE SUBSTANTIAL INTERESTS OF KANSAS, ARE
NOT SUSTAINED BY THE EVIDENCE.  P. 400. 

6.  RELIEF OTHER THAN THE RESTRAINT OF FURTHER PROSECUTION OF SUITS
BY THE KANSAS USER AGAINST COLORADO USERS IS DENIED TO BOTH STATES.  P.
400. 

COLORADO V. KANSAS ET AL. 

BILL IN EQUITY. 

ORIGINAL SUIT IN EQUITY BY COLORADO AGAINST KANSAS AND THE FINNEY
COUNTY (KANSAS) WATER USERS' ASSOCIATION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT IS THE LATEST OF A SERIES OF LITIGATIONS BETWEEN KANSAS, OR
HER CITIZENS, AND COLORADO, OR HER CITIZENS, CONCERNING THEIR
RESPECTIVE RIGHTS TO THE BENEFICIAL USE OF THE WATERS OF THE ARKANSAS
RIVER. 

THE RIVER HAS ITS ORIGIN IN CENTRAL COLORADO, AND IS A MOUNTAIN
TORRENT FOR 130 MILES TO A POINT NEAR CANON CITY WHERE IT ENTERS A
FOOTHILL REGION ENDING NEAR PUEBLO.  THENCE IT TRAVERSES THE HIGH
PLAINS OF EASTERN COLORADO AND WESTERN KANSAS.  IN THE AREAS MENTIONED
THE STREAM IS NON-NAVIGABLE. 

IN 1901 KANSAS BROUGHT SUIT AGAINST COLORADO IN THIS COURT FOR AN
INJUNCTION RESTRAINING THE LATTER FROM DIVERTING, OR PERMITTING ANYONE
UNDER HER AUTHORITY TO DIVERT, WATERS OF THE RIVER WITHIN COLORADO, AND
FOR GENERAL RELIEF.  KANSAS V. COLORADO, 206 U.S. 46.  FN1  KANSAS IN
HER BILL ALLEGED THAT THE WATERS OF THE RIVER HAD BEEN USED FOR
IRRIGATION IN HER WESTERN COUNTIES AND THAT, AFTER ESTABLISHMENT OF
THESE USES, COLORADO BEGAN SYSTEMATICALLY TO APPROPRIATE AND DIVERT
THEM BETWEEN CANON CITY AND THE KANSAS STATE LINE FOR IRRIGATING NON
RIPARIAN ARID LANDS; THAT, BY 1891, ALL THE NATURAL FLOW, AND MUCH OF
THE FLOOD WATERS, HAD BEEN APPROPRIATED IN COLORADO SO THAT THE AVERAGE
FLOW HAD BEEN GREATLY REDUCED AND THE NATURAL FLOW COMPLETELY CUT OFF. 

COLORADO REPLIED THAT THE STREAM WAS NOT CONTINUOUS EXCEPT AT TIMES
OF FLOOD; THAT, IN A STATE OF NATURE, ITS BED EAST OF PUEBLO WAS
FREQUENTLY DRY; THAT COLORADO AND HER CITIZENS HAD DIVERTED AND USED
ONLY THE PERENNIAL FLOW ABOVE CANON CITY AND WHAT HAD BEEN DONE IN
EFFECT CONSERVED WATER FOR DELIVERY INTO KANSAS.  SHE DENIED SHE HAD
SUBSTANTIALLY DIMINISHED THE FLOW OF THE RIVER AT THE STATE LINE.  SHE
ASSERTED SHE WAS ENTITLED TO CONSUME THE ENTIRE FLOW; BUT ALLEGED THAT,
IN ANY VIEW, HER TOTAL APPROPRIATIONS DID NOT AMOUNT TO AN INFRINGEMENT
OF KANSAS' RIGHTS CALLING FOR JUDICIAL INTERFERENCE. 

THE COURT DENIED KANSAS' CONTENTION THAT SHE WAS ENTITLED TO HAVE THE
STREAM FLOW AS IT FLOWED IN A STATE OF NATURE.  IT DENIED COLORADO'S
CLAIM THAT SHE COULD DISPOSE OF ALL THE WATERS WITHIN HER BORDERS, AND
OWED NO OBLIGATION TO PASS ANY OF THEM ON TO KANSAS.  IT DECLARED THAT
AS EACH STATE HAD AN EQUALITY OF RIGHT EACH STOOD BEFORE THE COURT ON
THE SAME LEVEL AS THE OTHER; THAT INQUIRY WAS NOT CONFINED TO THE
QUESTION WHETHER ANY PORTION OF THE RIVER WATERS WERE WITHHELD BY
COLORADO BUT MUST INCLUDE THE EFFECT OF WHAT HAD BEEN DONE UPON THE
CONDITIONS IN THE RESPECTIVE STATES; AND THAT THE COURT MUST ADJUST THE
DISPUTE ON THE BASIS OF EQUALITY OF RIGHTS TO SECURE, SO FAR AS
POSSIBLE, TO COLORADO, THE BENEFITS OF IRRIGATION, WITHOUT DEPRIVING
KANSAS OF THE BENEFITS OF A FLOWING STREAM.  THE MEASURE OF THE
RECIPROCAL RIGHTS AND OBLIGATIONS OF THE STATES WAS DECLARED TO BE AN
EQUITABLE APPORTIONMENT OF THE BENEFITS OF THE RIVER.  THE COURT ADDED
THAT, BEFORE THE DEVELOPMENTS IN COLORADO CONSEQUENT UPON IRRIGATION
WERE TO BE DESTROYED OR MATERIALLY AFFECTED, KANSAS MUST SHOW NOT
MERELY SOME TECHNICAL RIGHT BUT ONE WHICH CARRIED CORRESPONDING
BENEFITS. 

ON EXAMINATION OF THE PROOFS, THE COURT CONCLUDED THAT DIVERSIONS
AUTHORIZED BY COLORADO EMBRACED MORE WATER THAN THE TOTAL FLOW AT CANON
CITY.  IT FOUND, HOWEVER, THAT NO CLEAR SHOWING WAS MADE AS TO WHAT
SURPLUS WATER, IF ANY, WAS CONTRIBUTED BY THE TRIBUTARIES BELOW THAT
POINT OR AS TO THE PROPORTION OF THE DIVERTED WATER RETURNED TO THE
RIVER BY SEEPAGE.  THE OPINION DESCRIBED THE DIVERSIONS IN EACH STATE,
ANALYZED THE USE MADE OF THE WATER AND THE BENEFITS DERIVED FROM IT IN
EACH, CONSIDERED POPULATION TABLES AND AGRICULTURAL STATISTICS BEARING
UPON THE GROWTH OF THE COMMUNITIES ADJACENT TO THE RIVER IN EACH, AND
STATED CONCLUSIONS, NOW MATERIAL, AS FOLLOWS:  THAT THE RESULT OF
COLORADO'S APPROPRIATIONS HAD BEEN BENEFICIAL RECLAMATION OF MANY
ACRES; THAT, WHILE THE INFLUENCE OF COLORADO'S DIVERSIONS HAD BEEN OF
PERCEPTIBLE INJURY TO PORTIONS OF THE ARKANSAS VALLEY IN KANSAS, YET TO
THE GREAT BODY OF THE VALLEY THE DIMINUTION OF FLOW HAD WORKED LITTLE,
IF ANY, DETRIMENT; THAT REGARDING THE INTERESTS OF BOTH STATES, AND THE
RIGHT OF EACH TO RECEIVE BENEFIT THROUGH IRRIGATION AND OTHERWISE FROM
THE WATERS OF THE STREAM, THE COURT WAS NOT SATISFIED THAT KANSAS HAD
MADE OUT A CASE ENTITLING IT TO A DECREE.  THE COURT ADDED THAT IF
DEPLETION BY COLORADO CONTINUED TO INCREASE THERE WOULD COME A TIME
WHEN KANSAS MIGHT JUSTLY SAY THAT THERE WAS NO LONGER AN EQUITABLE
DISTRIBUTION OF BENEFITS AND MIGHT RIGHTLY CALL FOR RELIEF AGAINST
COLORADO AND HER CITIZENS.  ACCORDINGLY THE BILL WAS DISMISSED WITHOUT
PREJUDICE TO FUTURE ACTION BY KANSAS.  THE TAKING OF EVIDENCE ENDED
JUNE 16, 1905, AND THE DECISION OF THE COURT WAS ANNOUNCED MAY 13,
1907. 

OCTOBER 30, 1909, THE FINNEY COUNTY WATER USERS' ASSOCIATION, WHICH
MAINTAINED THE SO-CALLED FARMERS' DITCH IN KANSAS, APPLIED TO A KANSAS
COURT FOR ADJUDICATION OF PRIORITIES AS BETWEEN VARIOUS KANSAS USERS OF
THE RIVER WATER.  ONE OF THE DEFENDANTS, THE UNITED STATES IRRIGATING
COMPANY, REMOVED THE CAUSE TO THE UNITED STATES DISTRICT COURT.  A
CONSENT DECREE WAS ENTERED MAY 16, 1911, WHICH PROVIDED FOR THE
ALLOCATION AND ROTATION OF USE AMONGST CERTAIN, BUT NOT ALL, OF THE
KANSAS DITCHES, INCLUDING THE FARMERS' DITCH.  IT WAS, HOWEVER,
PROVIDED THAT THE SETTLEMENT SHOULD REMAIN BINDING UPON THE PARTIES
ONLY UNTIL THE ADJUDICATION OF OTHER LITIGATION NEXT TO BE NOTICED. 

AUGUST 27, 1910, UNITED STATES IRRIGATING COMPANY SUED GRAHAM DITCH
CO. AND OTHERS HOLDING COLORADO PRIORITIES, IN THE UNITED STATES
DISTRICT COURT FOR COLORADO, TO OBTAIN AN ADJUDICATION OF PRIORITIES AS
BETWEEN KANSAS USERS AND COLORADO USERS.  THE FINNEY COUNTY ASSOCIATION
WAS DENIED LEAVE TO INTERVENE.  EVIDENCE WAS TAKEN, BUT THE SUIT WAS
SETTLED BY A CONTRACT OF FEBRUARY 19, 1916.  BY THIS SETTLEMENT, THE
COLORADO DEFENDANTS AGREED TO RECOGNIZE PRIORITIES AS OF AUGUST 27,
1910, FOR ALL THE KANSAS DITCHES IN FINNEY COUNTY EXCEPT THE FARMERS'
DITCH; NOT TO APPLY FOR, OR CLAIM, PRIORITIES FOR STORAGE PURPOSES ON
THE PURGATOIRE RIVER, A TRIBUTARY OF THE ARKANSAS, OR BELOW THE MOUTH
OF THE PURGATOIRE, OF A DATE EARLIER THAN AUGUST 27, 1910; AND TO PAY
THE COSTS OF SUIT AND AN ADDITIONAL SUM TO THE KANSAS INTERESTS.  THE
KANSAS DITCHES AGREED TO ACCEPT THE PRIORITY DATE OF AUGUST 27, 1910,
AND THE QUANTITIES OF WATER SPECIFIED IN THE CONTRACT, AS A DEFINITION
AND DETERMINATION OF THEIR RIGHTS.  THE DEFENDANTS COMPLIED WITH THE
TERMS OF THE CONTRACT. 

THE FINNEY COUNTY ASSOCIATION DECLINED TO BECOME A PARTY TO THE
CONTRACT AND, ON NOVEMBER 27, 1916, BROUGHT SUIT IN THE UNITED STATES
DISTRICT COURT FOR COLORADO AGAINST THE SAME DEFENDANTS FOR RELIEF LIKE
THAT SOUGHT IN THE UNITED STATES IRRIGATING COMPANY'S SUIT.  JANUARY
29, 1923, THE FINNEY COUNTY ASSOCIATION BROUGHT A SECOND SUIT IN THE
SAME COURT AGAINST OTHER COLORADO DEFENDANTS FOR SIMILAR RELIEF. 
JANUARY 24, 1928, COLORADO FILED THE PRESENT BILL AGAINST KANSAS AND
THE FINNEY COUNTY ASSOCIATION. 

AFTER FORMAL RECITALS, THE BILL REFERS TO OUR EARLIER DECISION,
STATES THAT, IN RELIANCE UPON IT, MONEY HAS BEEN SPENT IN THE
IMPROVEMENT OF THE IRRIGATION SYSTEMS IN COLORADO, RECITES THE PRIOR
AND THE PENDING PRIVATE LITIGATION AGAINST COLORADO APPROPRIATORS,
ALLEGES THAT THE ESTABLISHMENT OF AN INTERSTATE PRIORITY SCHEDULE
SOUGHT IN THE PENDING SUITS WOULD DISRUPT AND DESTROY COLORADO'S
ADMINISTRATION OF THE WATERS OF THE ARKANSAS BASIN AND RESULT IN
CONFLICT OF STATE AUTHORITY, ASSERTS THAT NO PROPER SETTLEMENT OF THE
RELATIVE RIGHTS OF THE STATES CAN BE OBTAINED IN SUITS BY KANSAS
APPROPRIATORS AGAINST COLORADO APPROPRIATORS, OUTLINES OTHER INJURY TO
COLORADO THREATENED BY PROSECUTION OF THE PENDING CASES TO JUDGMENT,
AND PRAYS THAT THE FINNEY COUNTY ASSOCIATION BE ENJOINED FROM FURTHER
PRESSING THOSE SUITS, THAT KANSAS AND HER CITIZENS BE ENJOINED FROM
LITIGATING, OR ATTEMPTING TO LITIGATE, THE RELATIVE RIGHTS OF THE TWO
STATES AND THEIR CITIZENS TO THE WATERS OF THE RIVER ON CLAIMS SIMILAR
TO THOSE MADE BY THE ASSOCIATION IN ITS PENDING SUITS, AND THAT THE
RIGHTS OF COLORADO AND HER CITIZENS AS DETERMINED BY THE JUDGMENT IN
KANSAS V. COLORADO BE PROTECTED. 

KANSAS' ANSWER ADMITS SOME ALLEGATIONS OF THE BILL AND DENIES OTHERS,
SETS FORTH HER ALLEGED RIGHTS IN THE WATERS OF THE RIVER, RECITES
APPROPRIATIONS BY KANSAS RESIDENTS AND CITIZENS, DIVERSIONS BY COLORADO
CITIZENS UNDER APPROPRIATIONS JUNIOR IN TIME AND INFERIOR IN RIGHT TO
THOSE MADE IN KANSAS, AND ASSERTS THAT, SINCE THE FILING OF THE
COMPLAINT IN KANSAS V. COLORADO, COLORADO USERS HAVE LARGELY INCREASED
THEIR APPROPRIATIONS AND DIVERSIONS, AND THREATEN FURTHER TO INCREASE
THEM, TO THE INJURY OF KANSAS USERS.  SHE PRAYS THAT THE COURT PROTECT
AND QUIET HER RIGHTS AND THOSE OF HER CITIZENS AND RESIDENTS, INCLUDING
THE FINNEY COUNTY ASSOCIATION, TO THEIR APPROPRIATIONS, THAT THE RIGHTS
OF HER CITIZENS AND RESIDENTS TO DIVERT WATER FROM THE RIVER FOR
IRRIGATION BE DECREED IN SECOND FEET AND THAT COLORADO, HER OFFICERS,
AGENTS, AND CITIZENS BE PERPETUALLY ENJOINED FROM DIVERTING ANY WATERS
FROM THE RIVER OR ITS TRIBUTARIES IN COLORADO UNTIL THE RIGHTS OF
KANSAS, HER CITIZENS AND RESIDENTS, ARE SATISFIED. 

THE FINNEY COUNTY ASSOCIATION FILED AN ANSWER ADMITTING AND DENYING
AVERMENTS OF THE BILL AND AFFIRMATIVELY PRAYING THAT COLORADO AND HER
CITIZENS BE ENJOINED FROM DIVERTING WATER FROM THE RIVER UNTIL THE
ASSOCIATION'S RIGHT TO 250 SECOND FEET IS SATISFIED.  THE ISSUES WERE
MADE UP BY COLORADO'S REPLY. 

PURSUANT TO OUR ORDER, EVIDENCE WAS TAKEN BY A COMMISSIONER. 
THEREUPON THE CAUSE WAS REFERRED TO A MASTER WITH LEAVE TO TAKE
ADDITIONAL EVIDENCE, AND DIRECTION, IN THE LIGHT OF ALL THE EVIDENCE,
TO STATE FINDINGS OF FACT, CONCLUSIONS OF LAW, AND TO RECOMMEND A FORM
OF DECREE.  THE EVIDENCE CONSISTS OF SOME SEVEN THOUSAND TYPEWRITTEN
PAGES OF TESTIMONY AND 368 EXHIBITS COVERING THOUSANDS OF PAGES. 

THE MASTER STATES THAT THE "EVIDENCE IS VOLUMINOUS AND CONFLICTING ON
MANY OF THE MATERIAL ISSUES OF FACT," BUT HIS REPORT CONTAINS NO
DISCUSSION OR ANALYSIS OF THE PROOFS.  APART FROM FORMAL RECITALS, THE
REPORT CONSISTS OF FOURTEEN FINDINGS OF FACT,  - MORE PROPERLY
CONCLUSIONS OF FACT,  - NINE CONCLUSIONS OF LAW, AND A RECOMMENDED FORM
OF DECREE.  EACH PARTY HAS FILED EXCEPTIONS. 

THREE QUESTIONS EMERGE FROM THE PLEADINGS.  (1) IS COLORADO ENTITLED
TO AN INJUNCTION AGAINST THE FURTHER PROSECUTION OF LITIGATION BY
KANSAS USERS AGAINST COLORADO USERS?  (2) DOES THE SITUATION CALL FOR
ALLOCATION OF THE WATERS OF THE BASIN AS BETWEEN COLORADO AND KANSAS IN
SECOND FEET OR ACRE FEET?  (3) HAS KANSAS PROVED THAT COLORADO HAS
SUBSTANTIALLY AND INJURIOUSLY AGGRAVATED CONDITIONS WHICH EXISTED AT
THE TIME OF HER EARLIER SUIT? 

THE MASTER CONCLUDED THAT THE FIRST QUESTION SHOULD BE ANSWERED IN
THE AFFIRMATIVE.  KANSAS HAS NOT EXCEPTED TO THE CONCLUSION OR TO THE
CORRESPONDING PROVISIONS OF THE PROPOSED DECREE. 

BEARING UPON THE SECOND QUESTION, THE MASTER FOUND THAT "THE AVERAGE
ANNUAL NATURAL FLOW OF THE RIVER AND ITS TRIBUTARIES" IS 1,240,000 ACRE
FEET, AND THE "AVERAGE ANNUAL DEPENDABLE AND FAIRLY CONTINUOUS WATER
SUPPLY AND FLOW" 1,110,000 ACRE FEET.  HE RECOMMENDS THAT THE
DEPENDABLE FLOW BE ALLOCATED 925,000 ACRE FEET TO COLORADO AND 185,000
ACRE FEET TO KANSAS, 150,000 THEREOF BETWEEN APRIL 1 AND OCTOBER 1, AND
35,000 BETWEEN OCTOBER 1 AND APRIL 1 OF EACH YEAR - THAT IS, FIVE
SIXTHS TO COLORADO AND ONE-SIXTH TO KANSAS.  HE SUBMITS A FORM OF
DECREE EMBODYING THIS ALLOCATION AND ADJUSTING REQUIRED DELIVERIES IN
THE SAME PROPORTIONS UPWARD OR DOWNWARD IN ACCORDANCE WITH ANNUAL FLOWS
IN EXCESS OF, OR LESS THAN, THE STATED AVERAGE ANNUAL DEPENDABLE FLOW. 
HE HAS NOT ATTEMPTED TO DEFINE FLOOD WATERS OR THE EXTENT TO WHICH THEY
ARE UNUSABLE BY EITHER STATE, AND SUGGESTS NO PROVISION WHEREBY THEIR
OCCURRENCE MAY BE TAKEN INTO ACCOUNT IN DEFINING COLORADO'S OBLIGATION
TO DELIVER WATER TO KANSAS.  THE FORM OF DECREE REQUIRES MEASUREMENT OF
FLOW BY GAUGES, ONE AT CANON CITY AND THE OTHER AT THE MOUTH OF THE
PURGATOIRE, AND DELIVERIES TO KANSAS PRORATED TO THE TOTAL OF THE FLOWS
AT THOSE POINTS. 

BOTH STATES EXCEPT TO THESE FEATURES OF THE DECREE AS AMBIGUOUS AND
IMPOSSIBLE OF ADMINISTRATION.  KANSAS, WHILE ASSERTING THAT THE AWARD
TO HER IS INADEQUATE, PROFESSES HER WILLINGNESS TO ACCEPT THE
RECOMMENDED ALLOCATION, BUT INSISTS THAT THE DECREE REQUIRE COLORADO TO
DELIVER THE QUANTITY OF WATER AWARDED TO KANSAS WHEN AND AS DEMANDED BY
HER.  COLORADO ASSERTS THAT THE RECOMMENDED DECREE - MUCH MORE KANSAS'
PROPOSED AMENDMENT - WOULD ENTAIL SERIOUS AND UNJUSTIFIED DAMAGE TO HER
INTERESTS, IF INDEED COMPLIANCE WITH ITS TERMS WERE POSSIBLE. 

IN RESPECT OF THE THIRD QUESTION, THE MASTER FINDS: 

"THERE HAS BEEN SINCE THE TAKING OF TESTIMONY IN THE CASE OF KANSAS
AGAINST COLORADO CITED IN 206 U.S. 46, IN 1907, A MATERIAL INCREASE IN
THE RIVER DEPLETION BY COLORADO OF THE WATER SUPPLY OF THE ARKANSAS
RIVER, WHICH HAS BEEN CONSUMED AND USED BY COLORADO USERS FOR
IRRIGATION PURPOSES AND WHICH HAS DIMINISHED THE FLOW OF THE WATER INTO
THE STATE OF KANSAS AND THAT BY REASON THEREOF THERE HAVE BEEN INJURIES
TO THE SUBSTANTIAL INTERESTS IN KANSAS."    NO EXCEPTION IS TAKEN TO
THE MASTER'S RECOMMENDATION THAT AN INJUNCTION ISSUE AGAINST FURTHER
PROSECUTION OF THE FINNEY COUNTY ASSOCIATION SUITS AGAINST COLORADO
USERS.  IN OUR VIEW SUCH AN INJUNCTION IS APPROPRIATE, AND SHOULD BE
GRANTED. 

COLORADO URGES THAT OUR DECISION IN KANSAS V. COLORADO, SUPRA,
AMOUNTED TO AN ALLOCATION OF THE FLOW OF THE ARKANSAS RIVER BETWEEN THE
TWO STATES.  WE CANNOT ACCEPT THIS VIEW.  IN THAT CASE KANSAS LABORED
UNDER A BURDEN OF PROOF APPLICABLE IN LITIGATION BETWEEN QUASI
SOVEREIGN STATES, OF WHICH MORE HEREAFTER.  THE DISMISSAL OF HER BILL
RESULTED FROM THE CONCLUSION THAT SHE HAD FAILED TO SUSTAIN THE
BURDEN.  BUT FROM THE DECISION THEN RENDERED IT FOLLOWS THAT UNLESS
KANSAS CAN SHOW A PRESENT SITUATION MATERIALLY DIFFERENT FROM THAT
DISCLOSED IN THE EARLIER CASE SHE CANNOT NOW OBTAIN RELIEF. 

THE PRAYER OF KANSAS FOR AN APPORTIONMENT IN SECOND FEET OR ACRE FEET
CANNOT BE GRANTED.  IN OUR FORMER DECISION WE RULED THAT KANSAS WAS NOT
ENTITLED TO A SPECIFIC SHARE OF THE WATERS AS THEY FLOWED IN A STATE OF
NATURE, THAT IT DID NOT THEN APPEAR THAT COLORADO HAD APPROPRIATED MORE
THAN HER EQUITABLE SHARE OF THE FLOW, AND THAT IF KANSAS WERE LATER TO
BE ACCORDED RELIEF, SHE MUST SHOW ADDITIONAL TAKINGS WORKING SERIOUS
INJURIES TO HER SUBSTANTIAL INTERESTS.  THIS WAS IN ACCORD WITH OTHER
DECISIONS IN SIMILAR CONTROVERSIES.  FN2 

THE REASON FOR JUDICIAL CAUTION IN ADJUDICATING THE RELATIVE RIGHTS
OF STATES IN SUCH CASES IS THAT, WHILE WE HAVE JURISDICTION OF SUCH
DISPUTES,  FN3  THEY INVOLVE THE INTERESTS OF QUASI-SOVEREIGNS, PRESENT
COMPLICATED AND DELICATE QUESTIONS, AND, DUE TO THE POSSIBILITY OF
FUTURE CHANGE OF CONDITIONS, NECESSITATE EXPERT ADMINISTRATION RATHER
THAN JUDICIAL IMPOSITION OF A HARD AND FAST RULE.  SUCH CONTROVERSIES
MAY APPROPRIATELY BE COMPOSED BY NEGOTIATION AND AGREEMENT, PURSUANT TO
THE COMPACT CLAUSE OF THE FEDERAL CONSTITUTION.  WE SAY OF THIS CASE,
AS THE COURT HAS SAID OF INTERSTATE DIFFERENCES OF LIKE NATURE, THAT
SUCH MUTUAL ACCOMMODATION AND AGREEMENT SHOULD, IF POSSIBLE, BE THE
MEDIUM OF SETTLEMENT, INSTEAD OF INVOCATION OF OUR ADJUDICATORY POWER. 
FN4 

IT FOLLOWS THAT THE MASTER ERRED IN ATTEMPTING TO DIVIDE WHAT HE
DESIGNATED AS THE "AVERAGE ANNUAL DEPENDABLE" WATER SUPPLY OF THE
ARKANSAS RIVER IN COLORADO INTO FRACTIONS AND AWARDING THOSE FRACTIONS
TO THE STATES RESPECTIVELY.  SUCH A CONTROVERSY AS IS HERE PRESENTED IS
NOT TO BE DETERMINED AS IF IT WERE ONE BETWEEN TWO PRIVATE RIPARIAN
PROPRIETORS OR APPROPRIATORS.  FN5 

THE LOWER STATE IS NOT ENTITLED TO HAVE THE STREAM FLOW AS IT WOULD
IN NATURE REGARDLESS OF NEED OR USE.  FN6  IF, THEN, THE UPPER STATE IS
DEVOTING THE WATER TO A BENEFICIAL USE, THE QUESTION TO BE DECIDED, IN
THE LIGHT OF EXISTING CONDITIONS IN BOTH STATES, IS WHETHER, AND TO
WHAT EXTENT, HER ACTION INJURES THE LOWER STATE AND HER CITIZENS BY
DEPRIVING THEM OF A LIKE, OR AN EQUALLY VALUABLE, BENEFICIAL USE.  FN7 

WE COME NOW TO THE VITAL QUESTION WHETHER KANSAS HAS MADE GOOD HER
CLAIM TO RELIEF FOUNDED ON THE CHARGE THAT COLORADO HAS, SINCE OUR
PRIOR DECISION, INCREASED DEPLETION OF THE WATER SUPPLY TO THE MATERIAL
DAMAGE OF KANSAS' SUBSTANTIAL INTERESTS.  THE QUESTION MUST BE ANSWERED
IN THE LIGHT OF RULES OF DECISION APPROPRIATE TO THE QUALITY OF THE
PARTIES AND THE NATURE OF THE SUIT. 

IN SUCH DISPUTES AS THIS, THE COURT IS CONSCIOUS OF THE GREAT AND
SERIOUS CAUTION WITH WHICH IT IS NECESSARY TO APPROACH THE INQUIRY
WHETHER A CASE IS PROVED.  NOT EVERY MATTER WHICH WOULD WARRANT RESORT
TO EQUITY BY ONE CITIZEN AGAINST ANOTHER WOULD JUSTIFY OUR INTERFERENCE
WITH THE ACTION OF A STATE, FOR THE BURDEN ON THE COMPLAINING STATE IS
MUCH GREATER THAN THAT GENERALLY REQUIRED TO BE BORNE BY PRIVATE
PARTIES.  BEFORE THE COURT WILL INTERVENE THE CASE MUST BE OF SERIOUS
MAGNITUDE AND FULLY AND CLEARLY PROVED.  FN8  AND IN DETERMINING
WHETHER ONE STATE IS USING, OR THREATENING TO USE, MORE THAN ITS
EQUITABLE SHARE OF THE BENEFITS OF A STREAM, ALL THE FACTORS WHICH
CREATE EQUITIES IN FAVOR OF ONE STATE OR THE OTHER MUST BE WEIGHED AS
OF THE DATE WHEN THE CONTROVERSY IS MOOTED. 

ON THIS RECORD THERE CAN BE NO DOUBT THAT A DECREE SUCH AS THE MASTER
RECOMMENDS, OR AN AMENDMENT OR ENLARGEMENT OF THAT DECREE IN THE FORM
KANSAS ASKS, WOULD INFLICT SERIOUS DAMAGE ON EXISTING AGRICULTURAL
INTERESTS IN COLORADO.  HOW GREAT THE INJURY WOULD BE IT IS DIFFICULT
TO DETERMINE, BUT CERTAINLY THE PROPOSED DECREE WOULD OPERATE TO
DEPRIVE SOME CITIZENS OF COLORADO, TO SOME EXTENT, OF THEIR MEANS OF
SUPPORT.  IT MIGHT INDEED RESULT IN THE ABANDONMENT OF VALUABLE
IMPROVEMENTS AND ACTUAL MIGRATION FROM FARMS.  THROUGH PRACTICE OF
IRRIGATION, COLORADO'S AGRICULTURE IN THE BASIN HAS GROWN STEADILY FOR
FIFTY YEARS.  WITH THIS DEVELOPMENT HAS GONE A LARGE INVESTMENT IN
CANALS, RESERVOIRS, AND FARMS.  THE PROGRESS HAS BEEN OPEN.  THE FACTS
WERE OF COMMON KNOWLEDGE. 

THE CONTROVERSY WAS LITIGATED IN 1901.  KANSAS WAS DENIED RELIEF IN
1907.  THE DISPUTE BETWEEN APPROPRIATORS IN THE TWO STATES WAS BROUGHT
INTO COURT IN 1910 AND SETTLED IN 1916.  THE FINNEY COUNTY ASSOCIATION
SUED COLORADO APPROPRIATORS IN 1916 AND 1923.  EVEN IF KANSAS' CLAIMS
OF INCREASED DEPLETION AND ENSUING DAMAGE ARE TAKEN AT FACE VALUE, IT
IS NEVERTHELESS EVIDENT THAT WHILE IMPROVEMENTS BASED UPON IRRIGATION
WENT FORWARD IN COLORADO FOR TWENTY-ONE YEARS, KANSAS TOOK NO ACTION
UNTIL COLORADO FILED THE INSTANT COMPLAINT IN 1928. 

THESE FACTS MIGHT WELL PRECLUDE THE AWARD OF THE RELIEF KANSAS ASKS. 
BUT, IN ANY EVENT, THEY GRAVELY ADD TO THE BURDEN SHE WOULD OTHERWISE
BEAR, AND MUST BE WEIGHED IN ESTIMATING THE EQUITIES OF THE CASE.  FN9 

THE MASTER CONCLUDES THAT THERE HAS BEEN A MATERIAL INCREASE IN
DEPLETION BY COLORADO, A CONSEQUENT DIMINUTION OF FLOW ACROSS THE STATE
LINE, AND INJURY TO THE SUBSTANTIAL INTERESTS OF KANSAS.  HIS REPORT
DOES NOT STATE WHAT HE CONSIDERS MATERIAL; OR THE EXTENT OF THE
DIMINUTION OF FLOW; OR THE INTERESTS OF KANSAS WHICH HAVE BEEN INJURED
AND THE EXTENT OF THE INJURY.  WE MUST, THEREFORE, TURN TO THE EVIDENCE
TO RESOLVE THE ISSUES. 

KANSAS ASSERTS THAT SINCE THE DECISION OF KANSAS V. COLORADO, SUPRA,
COLORADO HAS INCREASED HER CONSUMPTIVE USE OF THE WATER OF THE ARKANSAS
RIVER BY AN ANNUAL AVERAGE OF BETWEEN 300,000 AND 400,000 ACRE FEET. 
WITNESSES SO TESTIFIED AND, TO SUPPORT THEIR CONCLUSIONS, SUBMITTED
ELABORATE CALCULATIONS AND ANALYSES EXHIBITING THE ALLEGED TOTAL WATER
SUPPLY OF THE RIVER BASIN IN COLORADO AND THE ALLEGED AMOUNT OF WATER
PASSING IN THE BED OF THE STREAM ACROSS THE STATE LINE.  A WITNESS
SUBMITTED TABLES COVERING THE PERIOD 1895-1930 FROM WHICH HE DEDUCED AN
AVERAGE YEARLY WATER SUPPLY OF 1,240,000 ACRE FEET AND AN AVERAGE
ANNUAL DEPENDABLE SUPPLY OF 1,110,000 ACRE FEET.  HE PRESENTED FIGURES
TO SHOW THAT COLORADO'S CONSUMPTIVE USE HAD INCREASED TO THE EXTENT OF
AN ANNUAL AVERAGE OF 300,000 ACRE FEET.  HE REACHED THIS RESULT BY
USING ESTIMATED FLOW ACROSS THE STATE LINE BETWEEN 1895 AND 1908 AND
MEASURED FLOW BETWEEN 1908 AND 1930, DURING WHICH PERIOD A GAUGING
STATION WAS MAINTAINED AT HOLLY NEAR THE LINE.  MEASUREMENTS INDICATE
THAT, DURING THE LATTER PERIOD, THE AVERAGE ANNUAL STATE LINE FLOW WAS
260,700 ACRE FEET.  FN10  IF, AS CLAIMED, THIS FLOW REMAINED AFTER AN
ADDITIONAL AVERAGE ANNUAL DEPLETION OF 300,000 ACRE FEET BY COLORADO,
THE AVERAGE ANNUAL FLOW IN THE EARLIER PERIOD, 1895 TO 1908, WOULD
NECESSARILY HAVE BEEN GREATER BY 300,000, OR WOULD HAVE AVERAGED
560,700 ACRE FEET.  THE WITNESS' OWN EXHIBIT SHOWS THAT HE ASSUMED AN
AVERAGE ANNUAL STATE LINE FLOW FOR THE PERIOD 1895-1899 OF 300,000 ACRE
FEET, FOR 1900-1904, OF 470,000 ACRE FEET, AND, FOR 1905-1909, OF
454,000 ACRE FEET, OR AN ANNUAL AVERAGE OVER THE TOTAL PERIOD, 1895
1909, OF 408,000 ACRE FEET.  ON HIS OWN ESTIMATES THE CLAIMED AVERAGE
ANNUAL DEPLETION OF 300,000 ACRE FEET COULD NOT HAVE TAKEN PLACE. 
MOREOVER, THE FORCE OF THIS EVIDENCE IS WEAKENED BY KANSAS' ALLEGATIONS
IN KANSAS V. COLORADO, SUPRA.  IN HER BILL IN THAT CASE SHE ALLEGED
COLORADO HAD TOTALLY DESTROYED THE NORMAL FLOW OF THE RIVER EXCLUSIVE
OF FLOODS WHEREAS SHE NOW ASSERTS THAT THE FLOW AT THE TIME OF THE
EARLIER SUIT WAS SUCH THAT COLORADO HAS BEEN ABLE TO DEPLETE IT ON AN
ANNUAL AVERAGE OF 300,000 ACRE FEET. 

THE RECORDS OF COLORADO'S CONSUMPTION AND DITCH DIVERSIONS, AND THE
COLORADO AND KANSAS EXHIBITS SHOWING THE DIVERTIBLE AND USABLE STATE
LINE FLOW, REBUT SUCH AN INCREASE AS KANSAS ASSERTS.  KANSAS' EXPERT
WITNESS HIMSELF TESTIFIED THAT THE DIVERSION RECORDS SHOW NO MATERIAL
CHANGE IN COLORADO DIVERSIONS SINCE 1905 AND THAT IF ACREAGE IN
COLORADO HAS EXPANDED UNDER THE DITCHES ON THE MAIN STEM OF THE RIVER
IT HAS DONE SO BECAUSE OF AN IMPROVED DUTY OF WATER; THAT, DURING THE
PERIOD, THE RIVER GAINS DUE TO RETURN FLOW HAVE INCREASED, THE
CONSUMPTIVE USE OF WATER HAS DECLINED, AND RELATIVELY THE STREAM FLOWS
HAVE IMPROVED. 

THE KANSAS DITCHES ARE CAPABLE OF DIVERTING WATER ONLY UP TO 2,000
C.F.S.  WHEN THE FLOW IS GREATER THE EXCESS CANNOT BE DIVERTED AND
USED.  IT IS ADMITTED THAT THE CHARACTER OF THE FLOW OF THE RIVER IN
COLORADO IS VARIABLE FROM YEAR TO YEAR, FROM SEASON TO SEASON, AND FROM
DAY TO DAY, AND THE MAIN RIVER BELOW CANON CITY MAY BE ALMOST WITHOUT
WATER ONE DAY, RUN A FLOOD THE NEXT DAY, AND, ON THE FOLLOWING DAY, BE
IN PRACTICALLY ITS ORIGINAL CONDITION.  THUS IT APPEARS THAT BOTH IN
COLORADO AND IN KANSAS THERE MAY AT ONE TIME BE FLOOD WATER UNAVAILABLE
FOR DIRECT DIVERSION AND, AT ANOTHER, NOT ENOUGH WATER TO SUPPLY THE
CAPACITY OF DIVERSION DITCHES.  THE CRITICAL MATTER IS THE AMOUNT OF
DIVERTIBLE FLOW AT TIMES WHEN WATER IS MOST NEEDED FOR IRRIGATION. 
CALCULATIONS OF AVERAGE ANNUAL FLOW, WHICH INCLUDE FLOOD FLOWS, ARE,
THEREFORE, NOT HELPFUL IN ASCERTAINING THE DEPENDABLE SUPPLY OF WATER
USABLE FOR IRRIGATION.  THAT SUPPLY HAS, IN COLORADO, BEEN SUPPLEMENTED
BY THE EXTENSIVE USE OF RESERVOIRS FOR STORAGE OF FLOOD WATERS AND
WINTER FLOWS NOT USABLE OR NEEDED FOR IRRIGATION.  THOUGH WESTERN
KANSAS AFFORDS SITES FOR SIMILAR STORAGE RESERVOIRS, BUT ONE SMALL
BASIN HAS BEEN CONSTRUCTED IN THAT STATE.  ON THE OTHER HAND, THE
STORAGE IN COLORADO, AND THE RELEASE OF STORED WATER TO SUPPLEMENT THE
NATURAL FLOW OF THE STREAM IN TIMES OF NEED, OPERATES BY SEEPAGE AND
RETURN TO THE CHANNEL TO STABILIZE AND IMPROVE THE FLOW AT THE STATE
LINE AND, TO THAT EXTENT, BENEFITS IRRIGATION IN KANSAS. 

KANSAS RELIES HEAVILY UPON THE INCREASE OF IRRIGATED ACREAGE IN
COLORADO SINCE OUR DECISION IN 1907.  THE TESTIMONY IN THE EARLIER CASE
WAS CLOSED IN 1905.  THE THEN LATEST AVAILABLE CENSUS - FOR 1902 -
REPORTED 300,115 ACRES UNDER IRRIGATION IN THE ARKANSAS BASIN IN
COLORADO.  IN ITS OPINION THE COURT REFERRED TO THIS FIGURE.  THE NEXT
CENSUS - FOR 1909 - GIVES THE COLORADO ACREAGE AS 464,236.  THE LATER
REPORTS DISCLOSE AN ADDITION OF LESS THAN 5,000 ACRES BETWEEN 1909 AND
1939.  THUS A TOTAL OF ABOUT 170,000 ADDITIONAL ACRES HAS BEEN PUT
UNDER IRRIGATION SINCE 1902.  ON ITS FACE THIS RECORD WOULD SEEM TO
INDICATE A LARGE INCREASE OF CONSUMPTIVE USE BY COLORADO, BUT THE
ACREAGE UNDER IRRIGATION DOES NOT AFFORD A RELIABLE MEASURE OF ACTUAL
CONSUMPTION.  WHEN FIRST TURNED IN, THE WATER IS RAPIDLY ABSORBED BY
THE SUB-SOIL WITH CONSEQUENT HIGH CONSUMPTION.  BY CONTINUED IRRIGATION
THE SUB-SOIL BECOMES SATURATED, THE WATER TABLE RISES, AND WATER, IN
INCREASING QUANTITIES, FLOWS BACK TO THE STREAM.  ULTIMATELY
CONSUMPTION FALLS WELL BELOW DIVERSION.  THE RETURNED WATER AGAIN MAY
BE DIVERTED AND AGAIN SUPPLY RETURN FLOWS.  SINCE THE DECISION IN THE
EARLIER CASE, STUDIES OF RETURN FLOWS HAVE BEEN MADE WHICH INDICATE A
STEADY REDUCTION IN THE QUANTITY OF WATER CONSUMED PER ACRE OF
IRRIGATED LAND. 

PRACTICALLY ALL OF THE AFFECTED KANSAS DITCHES ARE IN THREE WESTERN
COUNTIES.  TABLES TAKEN FROM THE UNITED STATES CENSUS SHOW THAT, IN
1899, ACREAGE IRRIGATED IN THESE COUNTIES WAS 6% OF THAT IRRIGATED IN
THE COLORADO BASIN.  IN 1909 IT WAS 7%, IN 1929, 9.7%, AND, IN 1939,
10.7%.  IT SEEMS THAT COLORADO CANNOT HAVE DEPLETED THE USABLE SUPPLY
PASSING INTO KANSAS IF ACREAGE UNDER IRRIGATION IS ANY MEASURE OF
DEPLETION. 

WHATEVER MAY BE SAID OF THE PRACTICES OF COLORADO SINCE 1905, KANSAS
IS NOT ENTITLED TO RELIEF UNLESS SHE SHOWS THEY CLEARLY HAVE ENTAILED
SERIOUS DAMAGE TO HER SUBSTANTIAL INTERESTS AND THOSE OF HER CITIZENS. 
IT IS NOT NECESSARY TO QUOTE THE FINDINGS OF THIS COURT MADE IN THE
EARLIER CASE.  WE NEED ONLY SAY THEY DISCLOSE THAT SOME DITCHES IN
WESTERN KANSAS HAD BEEN ABANDONED FOR LACK OF AVAILABLE WATER AND ALL
DITCHES WERE SUFFERING FROM SHORTAGES OF FLOW.  THE COURT POINTED OUT
THAT COLORADO HAD AUTHORIZED DIVERSIONS IN EXCESS OF THE FLOW AT CANON
CITY.  AND THE RECORD IN THE PRESENT CASE INDICATES THAT, EXCEPT FOR
SEEPAGE AND RETURN FLOW, THE APPROPRIATIONS COLORADO HAS AUTHORIZED
FROM THE BASIN, AS A WHOLE, EXCEED THE AVAILABLE DEPENDABLE FLOW OF THE
STREAM AND ITS TRIBUTARIES, AND THIS APPEARS TO HAVE BEEN TRUE ALSO IN
1901.  IT APPEARS, NEVERTHELESS, THAT, SINCE 1904, AN INCREASED
QUANTITY OF USABLE WATER HAS PASSED THE STATE LINE, FOR IT IS TESTIFIED
BY KANSAS' EXPERT WITNESS THAT, BETWEEN 1895 AND 1902, NO DIVERTIBLE
WATER PASSED THE LINE AND NONE BETWEEN 1903 AND 1907, EXCEPT IN 1903
AND 1905, WHEREAS IN EACH YEAR SINCE 1908 DIVERTIBLE WATER HAS CROSSED
THE STATE LINE IN VARYING QUANTITIES AND, IN MOST YEARS, IN SUBSTANTIAL
AMOUNTS.    KANSAS, HOWEVER, INSISTS THAT 414,000 ACRES IN WESTERN
KANSAS ARE SUSCEPTIBLE OF SUCCESSFUL IRRIGATION, AND MUCH OF THIS LAND
WOULD HAVE BEEN IRRIGATED HAD COLORADO NOT DEPRIVED KANSAS OF HER
EQUITABLE SHARE OF THE FLOW.  THE EVIDENCE IS THAT THE ACREAGE NOW
IRRIGATED IN KANSAS LIES CLOSE TO THE RIVER AND ALONG THE RIVER
BOTTOM.  THE LAND CLAIMED TO BE SUSCEPTIBLE OF IRRIGATION EXTENDS MANY
MILES FROM THE BED OF THE RIVER.  WE ARE ASKED TO SPECULATE AS TO HOW
MUCH OF THIS LAND WOULD HAVE BEEN PUT UNDER IRRIGATION UNDER MORE
FAVORABLE CIRCUMSTANCES. 

AS HAS BEEN POINTED OUT, DESPITE COLORADO'S ALLEGED INCREASED
DEPLETION, THE ACREAGE UNDER IRRIGATION IN WESTERN KANSAS THROUGH
EXISTING DITCHES HAS STEADILY INCREASED, OVER THE PERIOD 1895-1939,
FROM APPROXIMATELY 15,000 ACRES TO APPROXIMATELY 56,000 ACRES. 
MOREOVER, THE ARID LANDS IN WESTERN KANSAS ARE UNDERLAID AT SHALLOW
DEPTHS WITH GREAT QUANTITIES OF GROUND WATER AVAILABLE FOR IRRIGATION
BY PUMPING AT LOW INITIAL AND MAINTENANCE COST.  THERE IS PERSUASIVE
TESTIMONY THAT FARMERS WHO COULD BE SERVED FROM EXISTING DITCHES HAVE
ELECTED NOT TO TAKE WATER THEREFROM BUT TO INSTALL PUMPING SYSTEMS
BECAUSE OF LOWER COST. 

AGAIN, THERE IS SERIOUS QUESTION WHETHER LANDS WHICH ARE NOT RIPARIAN
MAY DIVERT THE WATER FROM THE STREAM FOR IRRIGATION.  IN THE EARLIER
SUIT KANSAS ASSERTED,  FN11  AND THE COURT HELD,  FN12 THAT THE COMMON
LAW PREVAILED IN KANSAS AND GOVERNED THE RIGHTS OF RIPARIAN OWNERS.  IT
IS TRUE THAT THE RULE AS TO RIPARIAN RIGHTS HAS BEEN EXPANDED BY THE
COMMON LAW OF KANSAS TO PERMIT A RIPARIAN PROPRIETOR REASONABLE USE OF
THE WATERS OF A STREAM FOR IRRIGATION.  FN13  BUT SUCH USE IS SUBJECT
TO THE RIGHTS OF OTHER RIPARIAN OWNERS TO A LIKE REASONABLE USE.  WHAT
IS REASONABLE MUST, IN EACH INSTANCE, BE DETERMINED IN THE LIGHT OF
TOTAL SUPPLY AND TOTAL NEED OF ALL RIPARIAN OWNERS.  FN14  IT IS ALSO
TRUE THAT, BEGINNING IN 1886, KANSAS, BY STATUTE, RECOGNIZED
APPROPRIATION FOR IRRIGATION.  BUT THERE IS DOUBT WHETHER THE PRIVILEGE
IS NOT RESTRICTED TO RIPARIAN OWNERS IN SOME PORTIONS OF THE STATE. 
THE SUPREME COURT OF KANSAS HAS HELD THAT, WHERE A TITLE ORIGINATES IN
A GRANT ANTEDATING THE ACT OF 1886, THE RIGHT OF APPROPRIATION IS
LIMITED BY THE COMMON LAW AS TO RIPARIAN RIGHTS, WHICH ARE RIGHTS OF
PROPERTY DERIVED FROM THE ORIGINAL PATENT OR DEED IN THE LINE OF
TITLE.  FN15  IT SEEMS THAT TITLE TO MUCH OF THE LAND ALONG THE
ARKANSAS VALLEY IN WESTERN KANSAS WAS ORIGINALLY GRANTED OR PATENTED
PRIOR TO 1886.  THE BRIEF AND ARGUMENT OF KANSAS, WHILE REFERRING TO
THE STATUTES OF THE STATE AUTHORIZING APPROPRIATION, MAKE NO REFERENCE
TO THE KANSAS DECISIONS AND NO SHOWING WITH RESPECT TO THE RIGHT OF NON
RIPARIAN OWNERS TO APPROPRIATE WATERS AGAINST OBJECTION BY OTHER SUCH
OWNERS. 

THE OFFICIAL CENSUS FIGURES SUBMITTED BEARING UPON POPULATION OF THE
WESTERN COUNTIES OF KANSAS, AND THE AGRICULTURAL PRODUCTION IN THEM,
GIVE NO SUPPORT TO A CLAIM THAT THE INHABITANTS HAVE SUFFERED FOR LACK
OF ARABLE AND PRODUCTIVE LAND.  GENERALLY SPEAKING, THE POPULATION HAS
STEADILY INCREASED AND THE AGRICULTURAL PRODUCTION HAS ALSO RISEN
THROUGHOUT THE PERIOD IN QUESTION. 

ALL THESE CONSIDERATIONS PERSUADE US THAT KANSAS HAS NOT SUSTAINED
HER ALLEGATIONS THAT COLORADO'S USE HAS MATERIALLY INCREASED, AND THAT
THE INCREASE HAS WORKED A SERIOUS DETRIMENT TO THE SUBSTANTIAL
INTERESTS OF KANSAS. 

A DECREE SHOULD BE ENTERED ENJOINING THE FURTHER PROSECUTION OF THE
FINNEY COUNTY ASSOCIATION'S SUITS, AND DISMISSING THE PRAYERS OF BOTH
STATES FOR OTHER RELIEF.  THE PARTIES MAY SUBMIT SUCH A DECREE. 

FN1  THE COURT OVERRULED A DEMURRER TO THE BILL AND REQUIRED COLORADO
TO ANSWER.  KANSAS V. COLORADO, 185 U.S. 125. 

FN2  SEE THE CASES IN NOTES 3, 4 AND 6 INFRA.  IN NEW JERSEY V. NEW
YORK, 283 U.S. 336, 347, THE PRAYER OF PENNSYLVANIA FOR SUCH AN
ALLOCATION WAS DENIED.  WYOMING V. COLORADO, 259 U.S. 419, IS NOT AN
EXCEPTION.  AS IT HAPPENED, THE DOCTRINE OF APPROPRIATION HAD ALWAYS
PREVAILED IN EACH OF THE STATES THERE CONCERNED AND FURNISHED THE MOST
APPROPRIATE AND ACCURATE MEASURE OF THEIR RESPECTIVE RIGHTS OF
APPROPRIATION OF THE FLOW OF THE LARAMIE RIVER.  IT WAS, THEREFORE,
POSSIBLE IN ENFORCING EQUITABLE APPORTIONMENT, TO LIMIT THE AMOUNT OF
WATER WHICH COLORADO MIGHT, WITHOUT INJURY TO WYOMING'S INTERESTS,
DIVERT TO ANOTHER WATER SHED, TO AN AMOUNT NOT EXCEEDING THE
UNAPPROPRIATED FLOW. 

FN3  MISSOURI V. ILLINOIS, 180 U.S. 208; KANSAS V. COLORADO, 206 U.S.
46, 95, 96. 

FN4  SEE WASHINGTON V. OREGON, 214 U.S. 205, 218; MINNESOTA V.
WISCONSIN, 252 U.S. 273, 283; NEW YORK V. NEW JERSEY, 256 U.S. 296,
313.  COMPARE THE COLORADO RIVER COMPACT OF NOV. 24, 1922, AUTHORIZED
BY ACT OF AUGUST 19, 1921, 42 STAT. 171, AND DISMISSED IN ARIZONA V.
CALIFORNIA, 292 U.S. 341, 345; AND COMPARE HINDERLIDER V. LA PLATA
RIVER CO., 304 U.S. 92. 

FN5  KANSAS V. COLORADO, SUPRA, 100. 

FN6  KANSAS V. COLORADO, SUPRA, 85, 101-102; CONNECTICUT V.
MASSACHUSETTS, 282 U.S. 660, 669-670; WASHINGTON V. OREGON, 297 U.S.
517, 523, 526. 

FN7  CASES CITED IN NOTE 8. 

FN8  MISSOURI V. ILLINOIS, 200 U.S. 496, 520-521; NEW YORK V. NEW
JERSEY, 256 U.S. 296, 309; NORTH DAKOTA V. MINNESOTA, 263 U.S. 365,
374; CONNECTICUT V. MASSACHUSETTS, 282 U.S. 660, 669; ALABAMA V.
ARIZONA, 291 U.S. 286, 292; WASHINGTON V. OREGON, 297 U.S. 517, 522. 

FN9  WASHINGTON V. OREGON, 297 U.S. 517, 526. 

FN10  IN COMPUTING AVERAGE ANNUAL FLOWS, FLOOD WATERS ARE INCLUDED IN
THE RECKONING.  AS LATER SHOWN, SUCH ANNUAL AVERAGES DO NOT REPRESENT
THE QUANTITIES OF WATER USABLE BY DIVERSION DITCHES FOR IRRIGATION. 

FN11  206 U.S. 51, 52, 58, 59, 60, 61. 

FN12  IBID., 95, 99, 102, 104. 

FN13  CAMPBELL V. GRIMES, 62 KAN. 503, 64 P. 62. 

FN14  CLARK V. ALLAMAN, 71 KAN. 206, 80 P. 571. 

FN15  FRIZELL V. BINDLEY, 144 KAN. 84, 58 P.2D 95.  CF. SMITH V.
MILLER, 147 KAN. 40, 75 P.2D 273. 
..END :







CRESCENT EXPRESS LINES V. U.S., 320 U.S. 401 


NO. 65.  ARGUED NOVEMBER 19, 1943.  - DECIDED DECEMBER 6, 1943.  - 49
F.SUPP.  92, AFFIRMED. 


1.  UPON AN APPLICATION FOR A CERTIFICATE AUTHORIZING OPERATIONS AS A
COMMON CARRIER UNDER THE "GRANDFATHER CLAUSE" OF THE MOTOR CARRIER ACT,
THE INTERSTATE COMMERCE COMMISSION ISSUED A CERTIFICATE MORE LIMITED
THAN THAT INDICATED IN ITS EARLIER "COMPLIANCE ORDER."  HELD THAT THE
APPLICANT WAS NOT DEPRIVED OF ANY PROCEDURAL RIGHT.  P. 404. 

2.  UNDER THE "GRANDFATHER CLAUSE" OF THE MOTOR CARRIER ACT, THE
INTERSTATE COMMERCE COMMISSION ISSUED A COMMON CARRIER CERTIFICATE
LIMITED TO "SPECIAL OPERATIONS," "NON-SCHEDULED DOOR-TO-DOOR SERVICE,"
"IRREGULAR ROUTES," AND "TRANSPORTATION OF NOT MORE THAN SIX PERSONS IN
ANY ONE VEHICLE."  HELD AUTHORIZED BY THE ACT AND SUPPORTED BY THE
EVIDENCE.  P. 405. 

3.  THE LIMITATION OF THE CERTIFICATE TO "TRANSPORTATION OF NOT MORE
THAN SIX PERSONS IN ANY ONE VEHICLE" IS NOT INCONSISTENT WITH THE
PROVISO OF SEC. 208 OF THE MOTOR CARRIER ACT FORBIDDING RESTRICTION OF
THE RIGHT OF A CARRIER TO ADD EQUIPMENT.  PP. 406, 409. 

4.  IT WAS THE INTENT OF CONGRESS TO LIMIT APPLICANTS UNDER THE
"GRANDFATHER CLAUSE" TO THE TYPE OF EQUIPMENT AND SERVICE PREVIOUSLY
OFFERED.  P. 410. 

CRESCENT EXPRESS LINES, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DISMISSING
THE COMPLAINT IN A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL BRINGS HERE FOR REVIEW A JUDGMENT OF A DISTRICT COURT
FN1  UPHOLDING AN ORDER OF THE INTERSTATE COMMERCE COMMISSION,
SPECIFYING LIMITATIONS IN A CERTIFICATE PROPOSED TO BE ISSUED TO
APPELLANT AS A COMMON CARRIER. 

THE ORDER BEARS THE LIMITATIONS UPON ITS FACE, AS FOLLOWS: 

"THE SERVICE TO BE RENDERED BY APPLICANT, AS AUTHORIZED BY THE ORDER
OF WHICH THIS IS A PART, IN INTERSTATE OR FOREIGN COMMERCE AS A COMMON
CARRIER BY MOTOR VEHICLE OF PASSENGERS AND THEIR BAGGAGE, IN SPECIAL
OPERATIONS, IN NON-SCHEDULED DOOR-TO-DOOR SERVICE, LIMITED TO THE
TRANSPORTATION OF NOT MORE THAN SIX PASSENGERS IN ANY ONE VEHICLE, BUT
NOT INCLUDING THE DRIVER THEREOF, AND NOT INCLUDING CHILDREN UNDER TEN
YEARS OF AGE WHO DO NOT OCCUPY A SEAT OR SEATS, DURING THE SEASON
EXTENDING FROM JUNE 1 TO OCTOBER 1, INCLUSIVE, OVER IRREGULAR ROUTES,"
BETWEEN NEW YORK, N.Y., AND POINTS IN SULLIVAN AND ULSTER COUNTIES, NEW
YORK. 

FOLLOWING THE ENACTMENT OF THE MOTOR CARRIER ACT OF 1935, 49 STAT.
543, 49 U.S.C. SECS. 301 ET SEQ., THE APPELLANT'S PREDECESSOR, A
PARTNERSHIP, MADE TIMELY APPLICATION FOR A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY UNDER THE GRANDFATHER CLAUSE OF THE ACT, 49
U.S.C. SEC. 306(A). 

AS APPEARS FROM THE APPLICATION AND THE EVIDENCE, THE APPELLANT'S
OPERATIONS BEGAN IN 1928 WHEN HERMAN TREVAX PURCHASED A SEVEN-PASSENGER
SEDAN AND BEGAN CARRYING PASSENGERS TO SUMMER RESORTS IN THE MOUNTAINS
OF NEW YORK STATE.  BETWEEN 1930 AND 1933, THREE OTHERS PURCHASED CARS,
JOINED TREVAX IN THIS BUSINESS AND OPENED AN OFFICE IN NEW YORK.  ALL
THIS WAS PRIOR TO THE CRITICAL DATE OF JUNE 1, 1935, FIXED BY SEC.
306(A) TO DETERMINE THE ELIGIBILITY OF APPLICANTS FOR CERTIFICATES
BECAUSE OF THEIR FORMER (GRANDFATHER) OPERATION. 

THE PARTNERS ADVERTISED "7 PASSENGERS CARS LEAVING DAILY TO ALL PARTS
OF THE MOUNTAINS," "FROM YOUR HOME TO YOUR HOTEL."  AN AFFIDAVIT STATED
THAT THE PARTNERS WOULD "TRANSPORT PEOPLE TO HOTELS LOCATED IN ALL
ROADS AND BY-ROADS."  THE OWNERS OF SEVERAL RESORT HOTELS STATED THAT
THE APPLICANT HAD SUPPLIED CARS FOR CARRYING GUESTS BETWEEN THEIR
HOTELS AND NEW YORK CITY.  FORMER PASSENGERS DESCRIBED THE CONVENIENCE
OF THE SERVICE AND FROM THEIR DESCRIPTIONS OF THE TRIPS, IT APPEARS
THAT THE ROUTES FOLLOWED WERE IRREGULAR AND TAKEN TO FIT THE NEEDS OF
EACH PASSENGER.  THE FIRM OWNED NO BUSES OF ANY KIND. 

ON JUNE 20, 1938, THE COMMISSION ISSUED AN ORDER THAT IT WOULD, ON
COMPLIANCE WITH CONDITIONS NOT HERE PERTINENT, GRANT A CERTIFICATE
AUTHORIZING CRESCENT TO OPERATE "AS A COMMON CARRIER BY MOTOR VEHICLE
OF PASSENGERS AND THEIR BAGGAGE, OVER THE REGULAR ROUTE, BETWEEN FIXED
TERMINI, AND TO AND FROM INTERMEDIATE AND OFF-ROUTE POINTS, DURING THE
SEASON EXTENDING FROM THE 1ST OF JUNE TO THE 1ST OF OCTOBER,
INCLUSIVE," BETWEEN NEW YORK CITY AND NAMED TOWNS IN SULLIVAN AND
ULSTER COUNTIES, NEW YORK, BY WAY OF NEW JERSEY. 

PROTESTS WERE FILED BY SEVERAL COMPETING CARRIERS, WHO CONSIDERED THE
COMPLIANCE ORDER TOO BROAD.  ON SEPTEMBER 14, 1938, THE PARTIES WERE
NOTIFIED THAT THE OBJECTIONS HAD BEEN DEEMED SUFFICIENT TO WARRANT
REFERRING THE CASE BACK TO THE FIELD FORCE FOR FURTHER INVESTIGATION. 
AN INFORMAL HEARING, WHICH THE APPLICANT DID NOT ATTEND, WAS HELD ON
DECEMBER 1, 1938. 

THE COMMISSION THEN DEFERRED DETERMINATION OF THE APPLICANT'S RIGHTS
UNTIL THE DECISION OF A NUMBER OF TEST CASES INVOLVING CARRIERS
PERFORMING A SIMILAR SERVICE.  SEE SULLIVAN COUNTY HIGHWAY LINE
APPLICATION, 21 M.C.C. 717, RECONSIDERED, 30 M.C.C. 133; IRVING
NUDELMAN APPLICATION, 22 M.C.C. 275, RECONSIDERED, 28 M.C.C. 91.  IN
THE MEANTIME, THE PARTNERS SOLD THEIR BUSINESS TO THE PRESENT
APPELLANT, WHICH WAS SUBSTITUTED BEFORE THE COMMISSION BY ORDER OF
OCTOBER 31, 1940.  ON SEPTEMBER 2, 1941, THE SECOND ORDER, PROVIDING
FOR A MORE LIMITED CERTIFICATE, QUOTED AT THE BEGINNING OF THIS
OPINION, WAS ISSUED. 

(1)  APPELLANT CONTENDS THAT THE CHANGES TO WHICH IT OBJECTS IN THE
LAST ORDER AS COMPARED WITH THE EARLIER WERE MADE WITHOUT PROPER
HEARING OR EVIDENCE.  THIS ARGUMENT PROCEEDS UPON THE ASSUMPTION THAT
THE EARLIER CONCLUSIONS, AS EMBODIED IN THE 1938 ORDER, ENDOW APPELLANT
WITH SOMETHING AKIN TO A RIGHT TO RECEIVE ULTIMATELY A CERTIFICATE
EMBODYING THE TERMS OF THE ORDER.  FN2  HOWEVER, UNDER SEC. 306 THE
COMMISSION WAS DIRECTED TO ISSUE THE CERTIFICATES TO APPLICANTS UNDER
THE GRANDFATHER CLAUSE WITHOUT FURTHER PROOF OF CONVENIENCE OR
NECESSITY AND WITHOUT FURTHER PROCEEDINGS.  ITS ROUTINE PRACTICE WAS TO
REFER THE APPLICATION TO ITS FIELD FORCE FOR INVESTIGATION N3.  THE
APPLICANT APPEARED BEFORE THIS EXAMINER PRIOR TO THE FIRST ORDER OF THE
COMMISSION.  THE COMPLIANCE ORDER WAS MADE UPON THE APPLICATION, THE
SUPPORTING AFFIDAVITS AND QUESTIONNAIRE.  THE MASS OF APPLICATIONS
FORCED THIS SUMMARY PROCEDURE.  FN4  THE COMPLIANCE ORDER GAVE
OPPORTUNITY TO THE APPLICANT OR OTHER PARTIES IN INTEREST TO PROTEST
ITS CONCLUSIONS.  THE ORDER REMAINS UNDER THE CONTROL OF THE
COMMISSION.  SEC. 321(B).  THIS APPLICATION WAS TREATED IN THE
FOREGOING MANNER. 

NOTHING INIMICAL TO THE APPLICANT ON THE PROTESTS OF ITS COMPETITORS
DEVELOPED FROM THE HEARING OF DECEMBER 1, 1938.  APPLICANT PROTESTED IN
WRITING THE ORDER OF SEPTEMBER 2, 1941, FILED A BRIEF IN SUPPORT OF ITS
PROTEST AND UPON THE REFUSAL OF DIVISION 5 ON MARCH 17, 1942, TO ALLOW
THE PROTEST, RENEWED IT BEFORE THE ENTIRE COMMISSION WHERE IT WAS AGAIN
DENIED JULY 13, 1942.  AT NO TIME HAS APPELLANT OFFERED TO PRESENT
ADDITIONAL EVIDENCE OF OPERATIONS PRIOR TO JUNE 1, 1935.  IT SEEMS
PLAIN TO US THAT APPELLANT HAS BEEN AFFORDED AMPLE OPPORTUNITY TO
PRESENT ITS APPLICATION WITH ALL SUPPORTING DATA.  IN VIEW OF THESE
FACTS, WE DO NOT FIND IT NECESSARY TO RESOLVE A QUESTION AS TO WHETHER
OR NOT APPELLANT HAD ACTUAL NOTICE OF THE MEETING OF DECEMBER 1, 1938. 

(2)  A FURTHER CONTENTION OF APPELLANT IS THAT THE RECORD "DOES NOT
SUPPORT THE COMMISSION IN RESTRICTING THE APPELLANT TO DOOR-TO-DOOR
SERVICE OVER IRREGULAR ROUTES IN NON-SCHEDULED OPERATIONS," WHICH WERE
DESCRIBED AS SPECIAL OPERATIONS.  AS THE DISTRICT COURT'S
INTERPRETATION OF THE ORDER, THAT "DOOR-TO-DOOR SERVICE" ALLOWED THE
APPELLANT TO TRANSPORT PASSENGERS FROM THEIR OFFICE OR STATION IN THE
CITY AS WELL AS FROM THE PASSENGERS' RESIDENCES TO THE MOUNTAINS AND
VICE VERSA, IS NOT CHALLENGED, THAT PROVISION REQUIRES NO FURTHER
EXAMINATION.  EVIDENTLY FROM THE ADVERTISEMENT QUOTED ON P. 403, SUPRA,
BOTH OF THESE TYPES OF BUSINESS WERE SOUGHT. 

THE OBJECTION OF APPELLANT TO "IRREGULAR ROUTES" APPEARS TO BE THAT
ONLY SPECIAL OR CHARTER OPERATIONS ENTITLE A MOTOR CARRIER TO A
CERTIFICATE FOR IRREGULAR ROUTES.  SEC. 307.  THEREFORE IF APPELLANT'S
OPERATIONS ARE SCHEDULED OPERATIONS BETWEEN FIXED TERMINI, AS APPELLANT
ALSO CONTENDS, THE ORDER OUGHT TO REQUIRE A REGULAR ROUTE.  HOWEVER, WE
THINK THE EVIDENCE IS CLEAR THAT PRIOR TO THE CRITICAL DATE, JUNE 1,
1935, THE OPERATIONS OF APPELLANT WERE SPECIAL AND NON-SCHEDULED. 
CONSEQUENTLY THE INSERTION OF THE PRIVILEGE FOR IRREGULAR ROUTES WAS
CORRECT. 

IN ANSWER TO THE INQUIRY AS TO WHETHER SPECIAL OR CHARTER OPERATIONS
WERE CONDUCTED PRIOR TO JUNE 1, 1935, APPELLANT ANSWERED, "NO SPECIAL
OPERATIONS."  FN5  HOWEVER, THE RECORD SHOWS A NUMBER OF INSTANCES
WHERE PASSENGERS MADE INDIVIDUAL ARRANGEMENTS FOR THEIR TRANSPORTATION
TO AND FROM THE MOUNTAINS.  NO SCHEDULE OF ARRIVAL OR DEPARTURE APPEARS
IN THE RECORD.  INSTEAD OF PUBLISHING ARRIVALS AND DEPARTURES, ROUTES,
STOPS, ET CETERA, THE ADVERTISEMENTS REFERRED TO DAILY TRIPS AND ASKED
PROSPECTIVE CUSTOMERS TO ARRANGE FOR RESERVATIONS.  THERE WAS
CONVINCING EVIDENCE THAT APPLICANT'S SERVICE PRIOR TO JUNE 1, 1935, WAS
SPECIAL AND NON-SCHEDULED. 

THE EVIDENCE ALSO IS PLAIN THAT THE APPELLANT DID NOT OPERATE BETWEEN
FIXED TERMINI.  A MAP WAS FILED WITH THE APPLICATION SHOWING NOT A
SINGLE DESTINATION IN THE MOUNTAINS BUT NUMEROUS ONES, WHICH ARE
DESCRIBED BY APPELLANT IN ITS APPLICATION AS FOLLOWS: 

"APPLICANT OBTAINS ITS TRAFFIC IN THE BOROUGHS OF MANHATTAN AND
BRONX, NEW YORK, AND TRANSPORTS SAID TRAFFIC TO THE COUNTIES OF
SULLIVAN AND ULSTER, IN THE STATE OF NEW YORK.  ON RETURN TRIPS THE
APPLICANT OBTAINS ITS TRAFFIC IN AND ABOUT WOODBOURNE, NEW YORK, MORE
SPECIFICALLY WITHIN A RADIUS OF TWENTY (20) MILES FROM WOODBOURNE, NEW
YORK, AND TRANSPORTS SUCH TRAFFIC TO THE FIVE BOROUGHS OF NEW YORK
CITY." 

(3)  FINALLY, APPELLANT URGES THAT IT IS BEYOND THE POWER OF THE
COMMISSION TO LIMIT ITS OPERATIONS TO "TRANSPORTATION OF NOT MORE THAN
SIX PASSENGERS IN ANY ONE VEHICLE."  THE FREEDOM IS CLAIMED TO USE
BUSES OR OTHER MULTIPLE PASSENGER TYPE OF CONVEYANCE. 

PROVIDES, WITH REFERENCE TO GRANDFATHER CLAUSE CARRIERS, "THAT NO
TERMS, CONDITIONS, OR LIMITATIONS SHALL RESTRICT THE RIGHT OF THE
CARRIER TO ADD TO HIS OR ITS EQUIPMENT AND FACILITIES OVER THE ROUTES,
BETWEEN THE TERMINI, OR WITHIN THE TERRITORY SPECIFIED IN THE
CERTIFICATE, AS THE DEVELOPMENT OF THE BUSINESS AND THE DEMANDS OF THE
PUBLIC SHALL REQUIRE."  FN6 

THE SCOPE OF THE COMMISSION'S AUTHORITY UNDER THIS SECTION DEPENDS
UPON THE MEANING GIVEN TO THE WORD, "BUSINESS."  THE APPELLANT ARGUES
THAT IT WOULD BE ENGAGED IN THE SAME BUSINESS IF, IN LIEU OF USING
SEVEN-PASSENGER SEDANS, IT UNDERTOOK TO HAUL LARGER NUMBERS OF
PASSENGERS IN BUSES.  BUT THE SPECIAL ADVANTAGE TO THE PUBLIC INHERENT
IN THE USE OF SMALL VEHICLES OPERATING AS OCCASION DEMANDS FROM DOOR-TO
DOOR RATHER THAN BETWEEN TERMINALS, SETS OFF THE APPELLANT'S BUSINESS
FROM THE SERVICE PROVIDED BY REGULAR LINES OPERATING HEAVIER
EQUIPMENT.  IRVING NUDELMAN APPLICATION, 28 M.C.C. 91, 95-6.  THE
LIMITATION TO SIX PASSENGERS IN ONE LOAD IS LESS RESTRICTIVE THAN
LIMITATION TO A PARTICULAR TYPE OF VEHICLE SINCE IT ALLOWS THE CARRIER
TO EMPLOY SEDANS, OPEN CARS, STATION WAGONS, OR ANY OTHER SUITABLE
MOTOR VEHICLE.  28 M.C.C. AT 96.  THIS ALLOWS FLEXIBILITY IN EQUIPMENT
WHILE CONTINUING THE SAME BUSINESS.  22 M.C.C. 285.  THE LINE BETWEEN
SIX-PASSENGER AND LARGER SCALE OPERATION MUST BE DRAWN SOMEWHERE, AND
THE COMMISSION HAS FIXED IT WHERE THE APPELLANT CONDUCTED ITS BUSINESS
ON JUNE 1, 1935.  THE CRESCENT PARTNERSHIP GAVE SOME INDICATION THAT IT
APPRECIATED THESE SPECIAL DIFFERENCES WHEN IN 1938 IT PROPOSED TO
CHANGE ITS NAME TO CRESCENT CADILLAC SERVICE, "FOR THE SAKE OF A BETTER
BUSINESS NAME," THUS EMPHASIZING THE COMMERCIAL SIGNIFICANCE OF THE
SEDAN-TYPE VEHICLE.  IT APPEARS FROM THE APPLICATION THAT CRESCENT
OWNED NO BUSES; IT OPERATED NOTHING BUT SEDANS.  TO AUTHORIZE THE
APPELLANT TO CHANGE TO THE BUSINESS OF CARRYING PASSENGERS BY BUS WOULD
ALTER THE POSITION IN THE TRANSPORTATION SYSTEM WHICH IT OCCUPIED ON
JUNE 1, 1935.  NOBLE V. UNITED STATES, 319 U.S. 88.  FN7 

IF THE HOLDER OF A GRANDFATHER CERTIFICATE FOR THIS DISTINCTIVE DOOR
TO-DOOR SERVICE COULD DEVELOP HIS OPERATIONS SO THAT THEY WOULD BE
SUBSTANTIALLY THOSE OF A BUS LINE, THE ABILITY OF THE COMMISSION TO
CARRY OUT ITS DUTIES OF REGULATION IN THE PUBLIC INTEREST WOULD BE
SERIOUSLY IMPAIRED.  SINCE SEC. 308 REQUIRES THE COMMISSION TO SPECIFY
THE SERVICE TO BE RENDERED, THIS COULD NOT BE DONE WITHOUT POWER ALSO
TO SPECIFY THE GENERAL TYPE OF VEHICLE TO BE USED.  WE AGREE WITH THE
COMMISSION THAT THE PROVISO IS A PROHIBITION AGAINST A LIMITATION ON
THE ADDITION OF MORE VEHICLES OF THE AUTHORIZED TYPE, NOT A PROHIBITION
OF THE SPECIFICATION OF THE TYPE.  SEE IRVING NUDELMAN APPLICATION, 28
M.C.C. 91.  FN8 

WE ARE OF THE VIEW THAT THE POWER OF THE COMMISSION TO LIMIT THE
CERTIFICATE AS IT PROPOSES TO DO IS IN ACCORD WITH THE PURPOSES OF THE
MOTOR CARRIER ACT.  WHEN CONGRESS PROVIDED FOR CERTIFICATES TO COVER
ALL CARRIERS WHICH WERE ALREADY IN OPERATION, IT DID NOT THROW OPEN THE
MOTOR TRANSPORTATION SYSTEM TO MORE DESTRUCTIVE COMPETITION THAN THAT
ALREADY EXISTING.  THE RIGHT TO CERTIFICATES WAS LIMITED TO THOSE THEN
IN BONA FIDE OPERATION "OVER THE ROUTE OR ROUTES OR WITHIN THE
TERRITORY FOR WHICH APPLICATION IS MADE."  49 U.S.C. SEC. 306. 

THE STATUTE, WE HAVE SAID, CONTEMPLATED "SUBSTANTIAL PARITY" BETWEEN
FUTURE AND PRIOR OPERATIONS.  ALTON R. CO. V. UNITED STATES, 315 U.S.
15, 22.  "AS THE ACT IS REMEDIAL AND TO BE CONSTRUED LIBERALLY, THE
PROVISO DEFINING EXEMPTIONS IS TO BE READ IN HARMONY WITH THE PURPOSE
OF THE MEASURE AND HELD TO EXTEND ONLY TO CARRIERS PLAINLY WITHIN ITS
TERMS."  MCDONALD V. THOMPSON, 305 U.S. 263, 266; GREGG CARTAGE CO. V.
UNITED STATES, 316 U.S. 74, 83.  CONSEQUENTLY WE HELD IN UNITED STATES
V. MAHER, 307 U.S. 148, THAT OPERATIONS OVER IRREGULAR ROUTES DID NOT
PROVIDE THE REQUISITE CONTINUITY TO SUPPORT AN APPLICATION FOR REGULAR
SERVICE BETWEEN FIXED TERMINI, EVEN WHEN THE HIGHWAY BETWEEN THE FIXED
TERMINI HAD BEEN OCCASIONALLY USED FOR PART OF THE DISTANCE IN THE
IRREGULAR ROUTE OPERATIONS.    WHEN THE COMMISSION REQUIRES THE
APPLICANT UNDER THE GRANDFATHER CLAUSE TO LIMIT ITS FUTURE OPERATIONS
TO THE TYPE OF EQUIPMENT AND SERVICE PREVIOUSLY OFFERED, IT ACTS WITHIN
ITS POWER AND IN ACCORD WITH THE PURPOSE OF CONGRESS TO MAINTAIN MOTOR
TRANSPORTATION FACILITIES APPROPRIATE TO THE NEEDS OF THE PUBLIC.  S.
REP. NO. 482, 74TH CONG., 1ST SESS.  IF THERE IS A NEED FOR A DIFFERENT
TYPE OF SERVICE FOR THIS TRANSPORTATION, APPLICATIONS MAY BE FILED
UNDER SEC. 307.  AFFIRMED. 

FN1  28 U.S.C. SECS. 47, 47A.    FN2  THESE PRELIMINARY ORDERS ARE
SPOKEN OF AS COMPLIANCE ORDERS.  SUCH A DESCRIPTIVE WORD IS APPLICABLE
BECAUSE THE ORDERS DIRECT THE ISSUE OF A CERTIFICATE IN ACCORDANCE WITH
THE TERMS OF THE COMPLIANCE ORDER, IF NO OBJECTION IS FILED AND IF THE
APPLICANT COMPLIES WITH THE STATUTORY AND REGULATORY REQUIREMENTS OF
SECURITY FOR PROTECTION OF THE PUBLIC, RATES, FARES, CHARGES AND
TARIFFS.  49 U.S.C. SECS. 315-317. 

FN3  51ST ANNUAL REPORT OF THE INTERSTATE COMMERCE COMMISSION, PP. 70
72. 

FN4  51ST ANNUAL REPORT OF THE INTERSTATE COMMERCE COMMISSION, PP.
67, 68, 71; 55TH ANNUAL REPORT OF THE INTERSTATE COMMERCE COMMISSION,
P. 110.  SEE GREGG CARTAGE CO. V. UNITED STATES, 316 U.S. 74, 84. 

FN5  THE COMMISSION CONSTRUES "CHARTER" TO REFER TO ONE CONTRACTOR
TAKING OVER ALL THE VEHICLE FOR A TRIP OR TRIPS AND "SPECIAL" TO
TRANSPORTATION SERVICES ON WEEK-END, HOLIDAYS OR OTHER SPECIAL
OCCASIONS WHEN THE CARRIER ASSEMBLES THE PASSENGERS AND SELLS
INDIVIDUAL TICKETS.  RE FORDHAM BUS CORP., 29 M.C.C. 293, 297, 41
F.SUPP.  712. 

FN6  THE BILL AS DRAFTED BY THE FEDERAL COORDINATOR OF TRANSPORTATION
DID NOT CONTAIN THE PROVISO.  S. DOC. NO. 152, 73D CONG., 2D SESS., PP.
47 AND 357.  THE ADDITION WAS EXPLAINED BY SENATOR WHEELER, THE
CHAIRMAN OF THE INTERSTATE COMMERCE COMMITTEE, AS FOLLOWS:  "SECTION
208(A), PAGE 26, AS AMENDED, PERMITS THE COMMISSION TO ATTACH TO ALL
CERTIFICATES, WHETHER GRANTED UNDER THE GRANDFATHER CLAUSE OR
OTHERWISE, REASONABLE TERMS, CONDITIONS, AND LIMITATIONS.  IN ORDER TO
MEET CRITICISMS THAT THE EFFECT OF THESE PROVISIONS WOULD BE TO CHECK
THE NATURAL GROWTH OF OPERATIONS IF EVERY INCREASE IN FACILITIES
REQUIRED AUTHORIZATION BY THE COMMISSION, THE COMMITTEE HAS AMENDED

FN7  THE NOBLE CASE WAS A CONTRACT CARRIER APPLICATION UNDER 49
U.S.C. SEC. 309.  UNDER SUBSECTION (B) THE COMMISSION WAS REQUIRED TO
SPECIFY IN THE PERMIT THE "BUSINESS OF THE CONTRACT CARRIER COVERED
THEREBY." 

WE HELD THAT IT WAS PROPER TO LIMIT THE PERMIT SO THAT ONLY SHIPPERS
WHO "OPERATE FOOD CANNERIES OR MEAT PACKING BUSINESSES," IN PARTICULAR
LOCALITIES, MIGHT BE SERVED.  THIS LIMITATION CORRESPONDED TO THE TYPE
OF TRADE PREVIOUSLY ENJOYED BY THE CARRIER.  THE CARRIER CONTENDED FOR
A LIMITATION ONLY AS TO COMMODITIES.  THE PROVISO IN SEC. 309(B),
APPLICABLE IN THE NOBLE CASE, COVERS SUBSTANTIALLY THE SAME GROUND AS
THE PROVISO IN SEC. 308 DEALT WITH IN THE PRESENT OPINION. 

FN8  NUMEROUS INSTANCES OF LIMITATION OF TYPE ARE GIVEN IN THE
NUDELMAN OPINION.  THE RULE OF THE NUDELMAN CASE HAS BEEN APPLIED IN
RUBIN AND GREENFIELD APPLICATION, 33 M.C.C. 383, AND GREENBERG
APPLICATION, 33 M.C.C. 725.  SEE ALSO DAVIDSON TRANSFER & STORAGE CO.
APPLICATION, 32 M.C.C. 777. 
..END :





















ESTATE OF ROGERS V. COMMISSIONER, 320 U.S. 410 


NO. 66.  ARGUED NOVEMBER 18, 19, 1943.  - DECIDED DECEMBER 6, 1943.  -
135 F.2D 35, AFFIRMED. 


1.  THE VALUE OF PROPERTY IN RESPECT OF WHICH A DECEDENT EXERCISED BY
WILL A GENERAL POWER OF APPOINTMENT, HELD, UNDER SEC. 302(F) OF THE
REVENUE ACT OF 1926, INCLUDIBLE IN HIS GROSS ESTATE FOR THE PURPOSE OF
THE FEDERAL ESTATE TAX, WITHOUT DEDUCTION FOR ANY PROPERTY APPOINTED TO
PERSONS WHO (UNDER THE WILL OF THE CREATOR OF THE POWER) WOULD HAVE
COME INTO ENJOYMENT OF OTHER INTERESTS IN THE PROPERTY HAD THE POWER
NOT BEEN EXERCISED.  P. 413. 

2.  WHETHER UNDER SEC. 302(F) THERE HAS BEEN A "PASSING" OF PROPERTY
BY A TESTAMENTARY EXERCISE OF A GENERAL POWER OF APPOINTMENT IS A
FEDERAL QUESTION, ONCE STATE LAW HAS MADE CLEAR THAT THE APPOINTMENT
HAD LEGAL VALIDITY AND BROUGHT INTO BEING NEW INTERESTS IN PROPERTY. 
P. 414. 

3.  HELVERING V. GRINNELL, 294 U.S. 153, DISTINGUISHED.  P. 415. 

ESTATE OF ROGERS ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 320 U.S. 210, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS WHICH DETERMINED THAT THERE WAS AN OVERPAYMENT OF
ESTATE TAX. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US TO DETERMINE WHETHER AND WHAT INTERESTS THAT
CAME INTO ENJOYMENT UPON THE DEATH OF THE DONEE OF A GENERAL POWER OF
APPOINTMENT SHOULD BE INCLUDED FOR FEDERAL ESTATE TAX PURPOSES IN THE
DONEE'S GROSS ESTATE.  SEC. 302(F) OF THE REVENUE ACT OF 1926, C. 27,
44 STAT. (PART 2) 9, 71, AS AMENDED BY SEC. 803(B) OF THE REVENUE ACT
OF 1932, C. 209, 47 STAT. 169, 279, 26 U.S.C. SEC. 811(F). 

THE PROBLEM ARISES FROM THE FOLLOWING CIRCUMSTANCES.  ROGERS SR. GAVE
HIS SON, THE DECEDENT, A GENERAL TESTAMENTARY POWER OF APPOINTMENT OVER
CERTAIN PROPERTY, WITH LIMITATIONS IN DEFAULT OF THE APPOINTMENT TO THE
HEIRS, UNDER NEW YORK LAW, OF THE SON.  ON THE SON'S DEATH THESE HEIRS
WERE HIS WIDOW, A DAUGHTER AND A SON, TO EACH OF WHOM WOULD HAVE COME
UPON DEFAULT ONE-THIRD OF THE PROPERTY.  HOWEVER, THE DECEDENT DID
EXERCISE HIS POWER.  HIS WILL, AS DETERMINED BY A DECREE OF THE
SURROGATE'S COURT OF THE COUNTY OF NEW YORK, NEW YORK (NEW YORK LAW
JOURNAL, NOVEMBER 9, 1938, P. 1542, AND 170 MISC. 85, 9 N.Y.S.2D 586),
CREATED THE FOLLOWING INTERESTS SO FAR AS HERE RELEVANT:  A FRACTION OF
THE APPOINTABLE PROPERTY, 6.667%, WENT IN THREE EQUAL SHARES TO THE
WIDOW, THE DAUGHTER, AND A GRANDSON; OF THE BALANCE, TWO EQUAL SHARES
WERE PUT IN TRUST FOR THE BENEFIT OF THE WIDOW AND DAUGHTER,
RESPECTIVELY, WHILE THE OTHER THIRD WAS APPOINTED OUTRIGHT TO THE
GRANDSON.  THE DECEDENT MADE NO APPOINTMENT TO HIS SON. 

IN DETERMINING THE VALUE OF THE GROSS ESTATE, THE COMMISSIONER
INCLUDED THE VALUE OF ALL PROPERTY OF WHICH DECEDENT DISPOSED BY
APPOINTMENT.  HE DID SO BY APPLYING THE DIRECTION OF SEC. 302 OF THE
REVENUE ACT OF 1926, WHEREBY 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY 

     .         .         .         .         . 

"(F)  TO THE EXTENT OF ANY PROPERTY PASSING UNDER A GENERAL POWER OF
APPOINTMENT EXERCISED BY THE DECEDENT (1) BY WILL  ..."  44 STAT. (PART
2) 9, 70-71, AS AMENDED BY SEC. 803(B) OF THE REVENUE ACT OF 1932, C.
209, 47 STAT. 169, 279, 26 U.S.C. SEC. 811(F). 

THE BOARD OF TAX APPEALS REDUCED THE VALUE OF HIS GROSS ESTATE BY
EXCLUDING THE VALUE OF THE PROPERTY WHICH PASSED TO THE WIDOW AND
DAUGHTER.  FN1  IT DID SO ON THE GROUND THAT THAT WHICH CAME TO THESE
TWO UNDER THE POWER WAS LESS IN VALUE THAN WOULD HAVE COME TO THEM
UNDER THE WILL OF THE DONOR OF THE POWER HAD THAT POWER NOT BEEN
EXERCISED BY THE DONEE.  ON REVIEW THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT REVERSED THE BOARD AND REINSTATED THE DEFICIENCY
DETERMINED BY THE COMMISSIONER, TAXING ALL THE PROPERTY WHICH THE
DECEDENT APPOINTED.  TWO OF THE JUDGES EXPRESSED DISTINCT VIEWS, THE
THIRD CONCURRED IN THE RESULT WITHOUT JOINING EITHER OF HIS BRETHREN. 
135 F.2D 35.  BECAUSE OF THE IMPORTANCE OF THE ISSUE TO THE
ADMINISTRATION OF FEDERAL ESTATE TAXATION AS WELL AS TO SETTLE AN
ASSERTED CONFLICT BETWEEN THE SECOND CIRCUIT AND THE THIRD AND FOURTH
CIRCUITS (ROTHENSIES V. FIDELITY-PHILADELPHIA TRUST CO., 112 F.2D 758;
LEGG'S ESTATE V. COMMISSIONER, 114 F.2D 760, AND SEE LEWIS V.
ROTHENSIES, 138 F.2D 129), WE BROUGHT THE CASE HERE.  320 U.S. 210. 

WE AGREE WITH THE DECISION BELOW.  A CONTRARY VIEW WOULD MEAN THAT
THE DECEDENT DID NOTHING SO FAR AS HE CREATED INTERESTS FOR HIS WIDOW
AND DAUGHTER, ALTHOUGH UNDENIABLY THE DONEE, BY HIS WILL, EXERCISED HIS
POWER OF APPOINTMENT.  NOTHING OF A TAXABLE NATURE HAPPENED, IT IS
URGED, NO PROPERTY "PASSED" THROUGH THIS EXERCISE OF HIS POWER BECAUSE
BY HIS WILL THE DONEE GAVE INTERESTS TO APPOINTEES WHO, IF HE HAD NOT
EXERCISED THE POWER, WOULD HAVE COME INTO ENJOYMENT OF INTERESTS IN THE
PROPERTY THOUGH TO BE SURE OTHER INTERESTS THAN THE DONEE SAW FIT TO
GIVE THEM. 

THE ARGUMENT DERIVES FROM CONSIDERATIONS IRRELEVANT TO THE
ASCERTAINMENT OF THE INCIDENCE OF THE FEDERAL ESTATE TAX.  IN LAW ALSO
THE RIGHT ANSWER USUALLY DEPENDS ON PUTTING THE RIGHT QUESTION.  FOR
THE PURPOSE OF ASCERTAINING THE CORPUS ON WHICH AN ESTATE TAX IS TO BE
ASSESSED, WHAT IS DECISIVE IS WHAT VALUES WERE INCLUDED IN DISPOSITIONS
MADE BY A DECEDENT, VALUES WHICH BUT FOR SUCH DISPOSITIONS COULD NOT
HAVE EXISTED.  THAT OTHER VALUES, WHETHER WORTH MORE OR LESS AS TO SOME
OF THE BENEFICIARIES, WOULD HAVE RIPENED INTO ENJOYMENT IF A TESTATOR
HAD NOT EXERCISED HIS PRIVILEGE OF TRANSMITTING PROPERTY DOES NOT ALTER
THE FACT THAT HE AND NO ONE ELSE DID TRANSMIT PROPERTY WHICH IT WAS HIS
TO DO WITH AS HE WILLED.  AND THAT IS PRECISELY WHAT THE FEDERAL ESTATE
TAX HITS - AN EXERCISE OF THE PRIVILEGE OF DIRECTING THE COURSE OF
PROPERTY AFTER A MAN'S DEATH.  WHETHER FOR PURPOSES OF LOCAL PROPERTY
LAW TESTAMENTARY DOMINION OVER PROPERTY IS DEEMED A "SPECIAL" OR A
"GENERAL" POWER OF APPOINTMENT, MORGAN V. COMMISSIONER, 309 U.S. 78;
WHETHER LOCAL TAX LEGISLATION DEEMS THE APPOINTED INTEREST TO DERIVE
FROM THE WILL OF THE DONOR OR THAT OF THE DONEE OF THE POWER, MATTER OF
DURYEA, 277 N.Y. 310, 14 N.E.2D 369; WHETHER FOR SOME PURPOSES IN
MATTERS OF LOCAL PROPERTY LAW TITLE IS SOMETIMES TRACED TO THE DONEE OF
A POWER AND FOR OTHER PURPOSES TO THE DONOR, CF. CHANLER V. KELSEY, 205
U.S. 466, 474, ARE MATTERS OF COMPLETE INDIFFERENCE TO THE FEDERAL
FISC. 

WHETHER BY A TESTAMENTARY EXERCISE OF A GENERAL POWER OF APPOINTMENT
PROPERTY PASSED UNDER SEC. 302(F) IS A QUESTION OF FEDERAL LAW, ONCE
STATE LAW HAS MADE CLEAR, AS IT HAS HERE, THAT THE APPOINTMENT HAD
LEGAL VALIDITY AND BROUGHT INTO BEING NEW INTERESTS IN PROPERTY.  SEE
HELVERING V. STUART, 317 U.S. 154.  WERE IT NOT SO, FEDERAL TAX
LEGISLATION WOULD BE THE VICTIM OF CONFLICTING STATE DECISIONS ON
MATTERS RELATING TO LOCAL CONCERNS AND QUITE UNRELATED TO THE SINGLE
UNIFORM PURPOSE OF FEDERAL TAXATION.  LYETH V. HOEY, 305 U.S. 188, 191
194.  IN TAXING "PROPERTY PASSING UNDER A GENERAL POWER OF APPOINTMENT
EXERCISED  ...  BY WILL," CONGRESS DID NOT DEAL WITH RECONDITE NICETIES
OF PROPERTY LAW NOR INCORPORATE A CRAZY-QUILT OF LOCAL FORMALISMS OR
HISTORIC SURVIVALS.  "THE IMPORTATION OF THESE DISTINCTIONS AND
CONTROVERSIES FROM THE LAW OF PROPERTY INTO THE ADMINISTRATION OF THE
ESTATE TAX PRECLUDES A FAIR AND WORKABLE TAX SYSTEM."  HELVERING V.
HALLOCK, 309 U.S. 106, 118.  CONGRESS USED APT LANGUAGE TO TAX
DISPOSITIONS WHICH CAME INTO BEING BY THE EXERCISE OF A TESTAMENTARY
PRIVILEGE AVAILED OF BY A DECEDENT AND WHICH IN NO OTHER WAY COULD HAVE
COME INTO BEING.  SUCH IS THE PRESENT CASE.  TO BRING ABOUT THE RESULTS
WHICH DECEDENT SOUGHT TO BRING ABOUT, HE HAD TO DEAL WITH THE WHOLE OF
THE CORPUS OVER WHICH HE HAD THE POWER OF DISPOSITION.  TO GIVE WHAT HE
WANTED TO GIVE AND TO WITHHOLD WHAT HE WANTED TO WITHHOLD, ROGERS JR.
HAD TO DO WHAT HE DID.  AND SO WHAT IS TAXED IS WHAT ROGERS JR. GAVE,
NOT WHAT ROGERS SR. LEFT.  THE SON'S APPOINTEES GOT WHAT THEY GOT NOT
BECAUSE HE CHOSE TO USE ONE SET OF WORDS RATHER THAN ANOTHER SET OF
WORDS, BUT BECAUSE HE WILLED TO GIVE THEM THE PROPERTY THAT HE WILLED. 
IF THE RESULT OF HIS TESTAMENTARY DISPOSITION IS TO SUBJECT HIS
BENEFICENCE TO THE ESTATE TAX, THAT IS ALWAYS THE EFFECT OF AN ESTATE
TAX. 

NOTHING THAT WAS DECIDED OR SAID IN HELVERING V. GRINNELL, 294 U.S.
153, STANDS IN THE WAY OF THIS CONCLUSION.  WHERE A DONEE OF A POWER
MERELY ECHOES THE LIMITATIONS OVER UPON DEFAULT OF APPOINTMENT HE MAY
WELL BE DEEMED NOT TO HAVE EXERCISED HIS POWER, AND THEREFORE NOT TO
HAVE PASSED ANY PROPERTY UNDER SUCH A POWER.  THAT CASE IS A FAR CRY
FROM THIS.  TO SUGGEST THAT ALL THE PROPERTY NECESSARY TO EFFECTUATE
THE ARRANGEMENTS MADE BY DECEDENT'S WILL DID NOT CONSTITUTE PROPERTY
PASSING UNDER HIS TESTAMENTARY POWER WOULD DISREGARD THE FACT THAT HE
HAD COMPLETE DOMINION OVER THIS PROPERTY AND DISPOSED OF ALL OF IT AS
HIS FANCY, NOT AT ALL AS HIS FATHER'S WILL, DICTATED.  INDULGENCE OF
THAT TESTAMENTARY FANCY TO THE FULL EXTENT ASSESSED BY THE COMMISSIONER
IS WHAT SEC. 302(F) TAXES.  AFFIRMED. 

FN1  THE BOARD OF TAX APPEALS HAD ORIGINALLY TAKEN A DIFFERENT VIEW. 
LESER V. COMMISSIONER, 17 B.T.A. 266, 273.  BUT HELVERING V. GRINNELL,
294 U.S. 153, LED IT TO CHANGE ITS VIEW.  WEBSTER V. COMMISSIONER, 38
B.T.A. 273, 284-289. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. CHIEF JUSTICE STONE AND MR. JUSTICE ROBERTS, DISSENTING: 

WE ARE OF OPINION THAT THE JUDGMENT SHOULD BE REVERSED. 

THIS LITIGATION IS CONCERNED ONLY WITH THE TAX TO BE PAID ON THE
EXERCISE OF THE TESTAMENTARY POWER WHICH PURPORTED TO GIVE OUTRIGHT TO
DECEDENT'S WIFE AND DAUGHTER, EACH, ABOUT 7% OF ONE-THIRD OF THE TRUST
FUND CREATED UNDER THE EARLIER WILL AND THE INCOME FOR LIFE FROM THE
REMAINDER OF THAT THIRD, INSTEAD OF THE OUTRIGHT GIFT OF A FULL ONE
THIRD OF THE TRUST FUND WHICH, IN DEFAULT OF APPOINTMENT, EACH WAS
ENTITLED TO RECEIVE UNDER THE EARLIER AND THEN OPERATIVE WILL. 

THE ONLY EFFECT OF THE EXERCISE OF THE POWER UPON THE SHARES OF THE
WIFE AND DAUGHTER WAS TO DIMINISH THE GIFTS WHICH THEY WERE ALREADY
ENTITLED TO RECEIVE UNDER THE EARLIER WILL.  THE BOARD OF TAX APPEALS
HAS FOUND THAT, AS A RESULT OF THE EXERCISE OF THE POWER, THE VALUE OF
THE PROPERTY WHICH THE TWO APPOINTEES WILL RECEIVE IS LESS THAN EACH
WAS ENTITLED TO RECEIVE UNDER THE FIRST WILL, WHICH FIXED THEIR RIGHTS
AS LEGATEES SUBJECT ONLY TO EXERCISE OF THE POWER. 

WE THINK THAT NEITHER THE HISTORY NOR THE WORDS OF THE TAXING STATUTE
JUSTIFY ANY ASSUMPTION THAT IN ENACTING A TAX ON TESTAMENTARY GIFTS IT
WAS THE PURPOSE OF CONGRESS TO TAX ALSO THE EXERCISE OF A TESTAMENTARY
POWER TO DEPRIVE A LEGATEE OF PART OF HIS LEGACY IN ADDITION TO TAXING
THE USE OF THE POWER TO APPOINT THAT PART TO A THIRD PERSON.  THE
STATUTE LAYS A TAX ON GIFTS SUCH AS THE EARLIER WILL IN THIS CASE MADE
TO THE WIFE AND TO THE DAUGHTER AND AS NOW INTERPRETED THE STATUTE
IMPOSES A SECOND TAX ON THE TESTAMENTARY EXERCISE OF THE POWER TO
DIMINISH THE GIFTS PREVIOUSLY MADE TO THEM BY WILL.  AUTHORITY FOR SO
INCONGRUOUS A RESULT IS FOUND IN THE PROVISIONS OF SEC. 302(F) OF THE
REVENUE ACT OF 1926, WHICH DIRECTS THE INCLUSION IN THE DECEDENT'S
ESTATE FOR TAXATION, OF "THE VALUE" OF PROPERTY "TO THE EXTENT OF ANY
PROPERTY PASSING UNDER A GENERAL POWER OF APPOINTMENT" EXERCISED BY A
DECEDENT.  THE STATUTE THUS SELECTS PROPERTY VALUES PASSING UNDER THE
EXERCISE OF A POWER OF APPOINTMENT AS THE MEASURE OF THE TAX.  IT GIVES
NO INDICATION THAT BEYOND THIS IT IS CONCERNED WITH THE TECHNICAL
QUALITY OF ESTATES PASSING UNDER EITHER THE WILL OR THE SUBSEQUENT
EXERCISE OF THE POWER.  AND, UNLIKE LATER AMENDMENTS TO THE ESTATE TAX
STATUTE, REVENUE ACT OF 1942, SEC. 403, 56 STAT. 942; CF. 26 U.S.C.
SEC. 811(D), IT TAXES NOT THE MERE EXISTENCE OF A POWER TO AFFECT THE
DISPOSITION OF PROPERTY, BUT ITS EXERCISE TO BESTOW ON THE APPOINTEE
SUCH PROPERTY VALUES. 

LOOKING TO THE WORDS OF THE STATUTE IN THE LIGHT OF ITS PURPOSE, WE
THINK THAT THE EFFECTIVE OPERATION OF THE EXERCISE OF THE POWER TO
TRANSFER PROPERTY VALUES WAS THE INTENDED SUBJECT OF THE TAX, AND NOT A
USE OF THE POWER WHICH ADDS NOTHING TO, BUT SUBTRACTS FROM, GIFTS
ALREADY MADE AND SUBJECT TO TAXATION.  THIS COURT SO STATED IN
HELVERING V. GRINNELL, 294 U.S. 153.  WE CAN HARDLY SUPPOSE THAT A
PURPORTED EXERCISE OF A POWER TO MAKE TO THE WIFE AND DAUGHTER GIFTS,
IDENTICAL WITH THOSE TO WHICH THEY WERE ALREADY ENTITLED UNDER THE
WILL, OR TO APPOINT TO A THIRD PERSON AN INTEREST LESS THAN THE WHOLE
IN THE SHARES GIVEN TO THEM BY THE WILL, WOULD RESULT IN A TAX ON THE
SHARES WHICH THE WIFE AND DAUGHTER WERE PERMITTED TO RETAIN. 

TO SAY THAT SUCH A TAX MUST BE IMPOSED BECAUSE BY A DIFFERENT FORM OF
WORDS THE SAME END IS ATTAINED, IS TO SACRIFICE SUBSTANCE TO FORM IN
THE APPLICATION OF A TAXING STATUTE WHICH IS CONCERNED ONLY WITH
SUBSTANCE, THE EFFECTIVE TRANSFER OF PROPERTY VALUES TO AN APPOINTEE. 
HELVERING V. GRINNELL, SUPRA, 156; ROTHENSIES V. FIDELITY-PHILADELPHIA
TRUST CO., 112 F.2D 758; LEGG'S ESTATE V. COMMISSIONER, 114 F.2D 760. 
WE HAVE TOO OFTEN COMMITTED OURSELVES TO THE PROPOSITION THAT TAXATION
IS A PRACTICAL MATTER CONCERNED WITH SUBSTANCE RATHER THAN FORM, SEE
BOWERS V. KERBAUGH-EMPIRE CO., 271 U.S. 170, 174; CHASE NATIONAL BANK
V. UNITED STATES, 278 U.S. 327, 336; CORLISS V. BOWERS, 281 U.S. 376,
378; GRIFFITHS V. COMMISSIONER, 308 U.S. 355, 357-8; HELVERING V.
HALLOCK, 309 U.S. 106, 116-19; HELVERING V. HORST, 311 U.S. 112, 116
19, TO DEPART FROM IT NOW. 
..END :












COMMISSIONER V. GOOCH CO., 320 U.S. 418 


NO. 53.  ARGUED NOVEMBER 12, 1943.  - DECIDED DECEMBER 6, 1943.  - 133
F.2D 131, REVERSED. 


1.  UPON A TAXPAYER'S APPEAL FROM THE COMMISSIONER'S DETERMINATION OF
A DEFICIENCY IN TAX FOR 1936, THE BOARD OF TAX APPEALS WAS WITHOUT
JURISDICTION TO DETERMINE THE AMOUNT OF A 1935 OVERPAYMENT (REFUND OF
WHICH WAS BARRED BY LIMITATIONS) AND TO CREDIT SUCH OVERPAYMENT AGAINST
THE DEFICIENCY.  INTERNAL REVENUE CODE, SEC. 272(G).  P.419. 

2.  THE BOARD OF TAX APPEALS WAS WITHOUT JURISDICTION IN SUCH CASE TO
APPLY THE DOCTRINE OF EQUITABLE RECOUPMENT.  P. 420. 

COMMISSIONER OF INTERNAL REVENUE V. GOOCH MILLING & ELEVATOR CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 319 U.S. 737, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS REDETERMINING DEFICIENCIES IN INCOME AND EXCESS
PROFITS TAXES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE JURISDICTION OF THE BOARD OF TAX APPEALS  FN1  TO DETERMINE AND
TO APPLY A PRIOR TAX OVERPAYMENT AGAINST A TAX DEFICIENCY FOR A
PARTICULAR YEAR IS THE SOLE QUESTION PRESENTED BY THIS CASE.  THE BOARD
HELD THAT IT DID NOT POSSESS SUCH JURISDICTION, BUT THE COURT BELOW
REVERSED, 133 F.2D 131.  WE GRANTED CERTIORARI, 319 U.S. 737, THE
PROBLEM BEING ONE OF IMPORTANCE IN THE ADMINISTRATION OF THE REVENUE
LAWS. 

AN AUDIT MADE IN 1938 OF THE BOOKS OF THE RESPONDENT CORPORATION
DISCLOSED AN ERRONEOUS VALUATION OF ITS INVENTORY OF JUNE 30, 1935. 
FN2  BECAUSE OF THIS ERROR, RESPONDENT HAD BEEN OVERASSESSED AND HAD
OVERPAID ITS INCOME AND EXCESS PROFITS TAXES FOR THE 1935 FISCAL YEAR. 
THIS EXCESS PAYMENT WAS NOT SUBJECT TO REFUND BECAUSE BARRED BY THE
STATUTE OF LIMITATIONS.  ON THE BASIS OF THE ADJUSTED INVENTORY,
HOWEVER, THE COMMISSIONER DETERMINED THAT THERE WAS A TAX DEFICIENCY
FOR THE 1936 FISCAL YEAR.  THE OVERPAYMENT OF THE PRIOR FISCAL YEAR
EXCEEDED THE AMOUNT OF THIS DEFICIENCY.  ON APPEAL TO THE BOARD FOR A
REDETERMINATION OF THE DEFICIENCY, THE RESPONDENT SOUGHT IN ITS AMENDED
PETITION TO HAVE THE 1935 OVERPAYMENT APPLIED AS AN OFFSET OR
RECOUPMENT AGAINST THE 1936 DEFICIENCY.  THE BOARD, CONSISTENT WITH ITS
PAST DECISIONS,  FN3 REFUSED TO GRANT THIS RELIEF "FOR JURISDICTIONAL
REASONS." 

WE HOLD THAT THE BOARD'S POSITION WAS CORRECT AND THAT IT HAD NO
JURISDICTION TO DETERMINE OR TO APPLY ANY OVERPAYMENT OF THE TAXES FOR
THE 1935 FISCAL YEAR AGAINST THE 1936 DEFICIENCY. 

THE BOARD IS BUT "AN INDEPENDENT AGENCY IN THE EXECUTIVE BRANCH OF
THE GOVERNMENT,"  FN4  AND THE LEGISLATIVE PATTERN OF ITS JURISDICTION
IS CLEAR AND UNAMBIGUOUS.  THE BOARD IS CONFINED TO A DETERMINATION OF
THE AMOUNT OF DEFICIENCY OR OVERPAYMENT FOR THE PARTICULAR TAX YEAR AS
TO WHICH THE COMMISSIONER DETERMINES A DEFICIENCY AND AS TO WHICH THE
TAXPAYER SEEKS A REVIEW OF THE DEFICIENCY ASSESSMENT.  INTERNAL REVENUE
CODE, SECS. 272, 322(D).  IT HAS NO POWER TO ORDER A REFUND OR CREDIT
SHOULD IT FIND THAT THERE HAS BEEN AN OVERPAYMENT IN THE YEAR IN
QUESTION.  UNITED STATES EX REL. GIRARD TRUST CO. V. HELVERING, 301
U.S. 540, 542.  SECTION 272(G) OF THE INTERNAL REVENUE CODE
SPECIFICALLY PROVIDES THAT "THE BOARD IN REDETERMINING A DEFICIENCY IN
RESPECT OF ANY TAXABLE YEAR SHALL CONSIDER SUCH FACTS WITH RELATION TO
THE TAXES FOR OTHER TAXABLE YEARS AS MAY BE NECESSARY CORRECTLY TO
REDETERMINE THE AMOUNT OF SUCH DEFICIENCY, BUT IN SO DOING SHALL HAVE
NO JURISDICTION TO DETERMINE WHETHER OR NOT THE TAX FOR ANY OTHER
TAXABLE YEAR HAS BEEN OVERPAID OR UNDERPAID." 

THE BOARD'S WANT OF JURISDICTION TO APPLY THE DOCTRINE OF EQUITABLE
RECOUPMENT IN THIS CASE IS MANIFEST FROM THESE STATUTORY PROVISIONS. 
THE COMMISSIONER ASSESSED A DEFICIENCY ONLY FOR THE 1936 FISCAL YEAR
AND IT WAS THIS ASSESSMENT OF WHICH THE RESPONDENT SOUGHT A REVIEW. 
THE BOARD THUS HAD JURISDICTION TO DO NO MORE THAN REDETERMINE THE 1936
DEFICIENCY DISTINCT FROM ANY OVERPAYMENT OR UNDERPAYMENT IN ANY PRIOR
OR SUBSEQUENT YEAR.  THERE WAS NO OCCASION HERE FOR THE BOARD TO
EXERCISE ITS POWER UNDER SEC. 272(G) TO CONSIDER ANY FACTS RELATING TO
THE TAXES FOR THE 1935 FISCAL YEAR.  FN5  THE REDETERMINATION OF THE
TAX LIABILITY FOR THE 1936 FISCAL YEAR WAS IN NO WAY DEPENDENT ON ANY
PRIOR TAX ASSESSMENT OR OVERPAYMENT.  LIKEWISE, NEITHER THE FACT THAT
THE PRIOR OVERPAYMENT COULD NO LONGER BE REFUNDED NOR THE FACT THAT THE
OVERPAYMENT EXCEEDED THE AMOUNT OF THE DEFICIENCY HAD ANY RELEVANCE
WHATEVER TO THE REDETERMINATION OF THE CORRECT TAX FOR THE 1936 FISCAL
YEAR.  THE RESPONDENT, IN OTHER WORDS, WAS SEEKING TO HAVE THE 1935
OVERPAYMENT USED, NOT AS AN AID IN REDETERMINING THE 1936 DEFICIENCY,
BUT AS AN AFFIRMATIVE DEFENSE OR OFFSET TO THAT DEFICIENCY.  FN6  THIS
NECESSARILY INVOLVED A DETERMINATION OF WHETHER THERE WAS AN
OVERPAYMENT DURING THE 1935 FISCAL YEAR.  THE ABSOLUTE AND UNEQUIVOCAL
LANGUAGE OF THE PROVISO OF SEC. 272(G), HOWEVER, PLACED SUCH A
DETERMINATION OUTSIDE THE JURISDICTION OF THE BOARD.  THUS TO ALLOW THE
BOARD TO GIVE EFFECT TO AN EQUITABLE DEFENSE WHICH OF NECESSITY IS
BASED UPON A DETERMINATION FOREIGN TO THE BOARD'S JURISDICTION WOULD BE
CONTRARY TO THE EXPRESSED WILL OF CONGRESS.  FN7 

WE ARE NOT CALLED UPON TO DETERMINE THE SCOPE OF EQUIPTABLE
RECOUPMENT WHEN IT IS ASSERTED IN A SUIT FOR REFUND OF TAXES IN
TRIBUNALS POSSESSING GENERAL EQUITY JURISDICTION.  CF. BULL V. UNITED
STATES, 295 U.S. 247; STONE V. WHITE, 301 U.S. 532.  BUT ITS USE IN
PROCEEDINGS BEFORE THE BOARD IS GOVERNED BY THE CIRCUMSCRIBED
JURISDICTION OF THAT AGENCY.  THE INTERNAL REVENUE CODE, NOT GENERAL
EQUITABLE PRINCIPLES, IS THE MAINSPRING OF THE BOARD'S JURISDICTION. 
UNTIL CONGRESS DEEMS IT ADVISABLE TO ALLOW THE BOARD TO DETERMINE THE
OVERPAYMENT OR UNDERPAYMENT IN ANY TAXABLE YEAR OTHER THAN THE ONE FOR
WHICH A DEFICIENCY HAS BEEN ASSESSED, THE BOARD MUST REMAIN IMPORTENT
WHEN THE PLEA OF EQUITABLE RECOUPMENT IS BASED UPON AN OVERPAYMENT OR
UNDERPAYMENT IN SUCH OTHER YEAR.  THE JUDGMENT OF THE COURT BELOW IS
THEREFORE REVERSED AND THAT OF THE BOARD OF TAX APPEALS IS AFFIRMED. 
REVERSED. 

FN1  SECTION 504(A) OF THE REVENUE ACT OF 1942, C. 619, 56 STAT. 798,
957, CHANGED THE NAME OF THE BOARD OF TAX APPEALS TO THE TAX COURT OF
THE UNITED STATES.  SECTION 504(B) PROVIDED THAT THIS CHANGE IN NAME
WAS TO HAVE NO EFFECT ON THE JURISDICTION, POWERS AND DUTIES OF THE
AGENCY.  SEE ALSO H. REP. NO. 2333, 77TH CONG., 2D SESS., PP. 172-173. 

FN2  THE RESPONDENT FILED ITS TAX RETURNS ON THE BASIS OF A FISCAL
YEAR ENDING ON JUNE 30.  THE INVENTORY OF JUNE 30, 1935, WAS COMMON TO
SUCCESSIVE YEARS, BEING THE CLOSING INVENTORY FOR THE 1935 FISCAL YEAR
AND THE OPENING INVENTORY FOR THE 1936 FISCAL YEAR. 

FN3  SEE, FOR EXAMPLE, APPEAL OF R.P. HAZZARD CO., 4 B.T.A. 150;
APPEAL OF CORNELIUS COTTON MILLS, 4 B.T.A. 255; APPEAL OF DICKERMAN &
ENGLIS, INC., 5 B.T.A. 633; B.T. COUCH GLUE CO. V. COMMISSIONER, 12
B.T.A. 1321; GOULD-MERSEREAU CO. V. COMMISSIONER, 21 B.T.A. 1316; HEYL
V. COMMISSIONER, 34 B.T.A. 223; RED WING POTTERIES V. COMMISSIONER, 43
B.T.A. 841; ELBERT V. COMMISSIONER, 2 T.C., NO. 113. 

FN4  53 STAT. 158, 26 U.S.C. SEC. 1100. 

FN5  THE BOARD HAS NOT HESITATED TO EXERCISE ITS JURISDICTION UNDER
SEC. 272(G) TO CONSIDER THE TAXES FOR OTHER TAXABLE YEARS INSOFAR AS
RELEVANT TO THE CORRECT REDETERMINATION OF THE DEFICIENCY IN QUESTION. 
SEE EVENS & HOWARD FIRE BRICK CO. V. COMMISSIONER, 8 B.T.A. 867;
COMMERCIAL TRUST CO. V. COMMISSIONER, 8 B.T.A. 1138; D.N. & E. WALTER &
CO. V. COMMISSIONER, 10 B.T.A. 620; J.C. BLAIR CO. V. COMMISSIONER, 11
B.T.A. 673; GREENLEAF TEXTILE CORP. V. COMMISSIONER, 26 B.T.A. 737,
AFFIRMED 65 F.2D 1017; W.M. RITTER LUMBER CO. V. COMMISSIONER, 30
B.T.A. 231, 277. 

FN6  AS WE SAID IN BULL V. UNITED STATES, 295 U.S. 247, 262,
"RECOUPMENT IS IN THE NATURE OF A DEFENSE ARISING OUT OF SOME FEATURE
OF THE TRANSACTION UPON WHICH THE PLAINTIFF'S ACTION IS GROUNDED." 

FN7  BEFORE SEC. 272(G) OF THE INTERNAL REVENUE CODE WAS ENACTED, THE
BOARD HELD THAT IT HAD JURISDICTION TO DETERMINE AN OVERPAYMENT FOR A
YEAR AS TO WHICH NO DEFICIENCY HAD BEEN FOUND BY THE COMMISSIONER AND
TO APPLY THAT OVERPAYMENT AGAINST THE LIABILITY FOR THE YEAR AS TO
WHICH HE HAD FOUND A DEFICIENCY, THUS GIVING EFFECT TO THE DOCTRINE OF
EQUITABLE RECOUPMENT.  APPEAL OF E. J. BARRY, 1 B.T.A. 156.  SOON
THEREAFTER, HOWEVER, CONGRESS PASSED SEC. 274(G) OF THE REVENUE ACT OF
1926(NOW SEC. 272(G) OF THE INTERNAL REVENUE CODE) TAKING SUCH
JURISDICTION AWAY FROM THE BOARD. 
..END :










ROBERTS V. UNITED STATES, 320 U.S. 264 


NO. 19.  ARGUED OCTOBER 15, 18, 1943.  - DECIDED NOVEMBER 22, 1943.  -
131 F.2D 392, REVERSED. 


A FEDERAL DISTRICT COURT, HAVING BY A VALID JUDGMENT SENTENCED A
DEFENDANT TO A TERM OF IMPRISONMENT (LESS THAN THE MAXIMUM) AND ORDERED
SUSPENSION OF EXECUTION OF THE SENTENCE AND RELEASE OF THE DEFENDANT ON
PROBATION, IS WITHOUT AUTHORITY THEREAFTER ON REVOCATION OF PROBATION
TO SET ASIDE THAT SENTENCE AND INCREASE THE TERM OF IMPRISONMENT. 
CONSTRUING PROBATION ACT, SECS. 1, 2.  PP. 266, 272. 

ROBERTS V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 318 U.S. 753, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
REVOKING PROBATION AND RESENTENCING A DEFENDANT IN A CRIMINAL CASE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN APRIL, 1938, PETITIONER PLEADED GUILTY TO A VIOLATION OF 18 U.S.C.
409 AND THE DISTRICT COURT ENTERED A JUDGMENT SENTENCING HIM TO PAY A
FINE OF $250 AND TO SERVE TWO YEARS IN A FEDERAL PENITENTIARY.  ACTING
UNDER AUTHORITY OF THE PROBATION ACT  FN1  THE COURT THEN SUSPENDED
EXECUTION OF THE SENTENCE CONDITIONED UPON PAYMENT OF THE FINE, AND
ORDERED PETITIONER'S RELEASE ON PROBATION FOR A FIVE-YEAR PERIOD.  THE
FINE WAS PAID AND HE WAS RELEASED.  IN JUNE, 1942, THE COURT AFTER A
HEARING REVOKED THE PROBATION, SET ASIDE THE ORIGINAL SENTENCE OF TWO
YEARS, AND IMPOSED A NEW SENTENCE OF THREE YEARS.  THE CIRCUIT COURT OF
APPEALS AFFIRMED, 131 F.2D 392.  CERTIORARI WAS GRANTED BECAUSE OF THE
IMPORTANCE OF QUESTIONS RAISED CONCERNING ADMINISTRATION OF THE
PROBATION ACT. 

THE POWER OF THE DISTRICT COURT TO INCREASE THE SENTENCE FROM TWO TO
THREE YEARS IS CHALLENGED ON TWO GROUNDS:  (1) PROPERLY INTERPRETED THE
PROBATION ACT DOES NOT AUTHORIZE A SENTENCE IMPOSED BEFORE PROBATION,
THE EXECUTION OF WHICH HAS BEEN SUSPENDED, TO BE SET ASIDE AND
INCREASED UPON REVOCATION OF PROBATION; (2) IF CONSTRUED TO GRANT SUCH
POWER, THE ACT TO THAT EXTENT VIOLATES THE PROHIBITION AGAINST DOUBLE
JEOPARDY CONTAINED IN THE FIFTH AMENDMENT.  WE DO NOT REACH THIS SECOND
QUESTION. 

IF THE AUTHORITY EXISTS IN FEDERAL COURTS TO SUSPEND OR TO INCREASE A
SENTENCE FIXED BY A VALID JUDGMENT, IT MUST BE DERIVED FROM THE
PROBATION ACT.  THE GOVERNMENT CONCEDES THAT FEDERAL COURTS HAD NO SUCH
POWER PRIOR TO PASSAGE OF THAT ACT.  SEE EX PARTE UNITED STATES, 242
U.S. 27; UNITED STATES V. MAYER, 235 U.S. 55; EX PARTE LANGE, 18 WALL. 
163; UNITED STATES V. BENZ, 282 U.S. 304.  IN THE INSTANT CASE THAT
PART OF THE ORIGINAL JUDGMENT WHICH SUSPENDED EXECUTION OF THE TWO-YEAR
SENTENCE AND RELEASED THE PETITIONER ON PROBATION WAS AUTHORIZED BY THE
LITERAL LANGUAGE OF SEC. 1 OF THE PROBATION ACT (U.S.C. TITLE 18, SEC.
724) GRANTING THE DISTRICT COURT POWER "TO SUSPEND THE  ...  EXECUTION
OF SENTENCE AND TO PLACE THE DEFENDANT UPON PROBATION.  ...  "  BUT
BEFORE WE CAN CONCLUDE THAT THE ACT AUTHORIZED THE DISTRICT COURT
THEREAFTER TO INCREASE THE SENTENCE IMPOSED BY THE ORIGINAL JUDGMENT WE
MUST FIND IN IT A LEGISLATIVE GRANT OF AUTHORITY TO DO FOUR THINGS:
REVOKE PROBATION; REVOKE SUSPENSION OF EXECUTION OF THE ORIGINAL
SENTENCE; SET ASIDE THE ORIGINAL SENTENCE; AND ENTER A NEW JUDGMENT FOR
A LONGER IMPRISONMENT. 

WE ARE ASKED BY THE GOVERNMENT TO FIND THIS LEGISLATIVE GRANT IN SEC.
2 OF THE ACT AS AMENDED (U.S.C. TITLE 18, SEC. 725) A PART OF WHICH IS
SET OUT BELOW.  FN2  IT IS CLEAR THAT POWER TO DO THE FIRST TWO THINGS,
REVOKE THE PROBATION AND THE SUSPENSION OF SENTENCE, IS EXPRESSLY
GRANTED BY SEC. 2.  IT IS EQUALLY CLEAR THAT POWER TO DO THE THIRD, SET
ASIDE THE ORIGINAL SENTENCE, IS NOT EXPRESSLY GRANTED.  IF WE FIND THIS
POWER WE MUST RESORT TO INFERENCE. 

EXCEPT BY STRAINED CONSTRUCTION WE COULD NOT INFER FROM THE EXPRESS
GRANT OF POWER TO REVOKE PROBATION OR SUSPENSION OF SENTENCE THE
FURTHER POWER TO SET ASIDE THE ORIGINAL SENTENCE.  NEITHER PROBATION
NOR SUSPENSION OF EXECUTION RESCINDED THE JUDGMENT SENTENCING
PETITIONER TO IMPRISONMENT; FN3  THE ONE MERELY ORDERED THAT PETITIONER
BE RELEASED UNDER THE SUPERVISION OF PROBATION OFFICIALS, THE OTHER
THAT ENFORCEMENT OF HIS SENTENCE BE POSTPONED.  UPON THEIR REVOCATION,
WITHOUT FURTHER COURT ACTION, THE ORIGINAL SENTENCE REMAINED FOR
EXECUTION AS THOUGH IT HAD NEVER BEEN SUSPENDED.  CF. MILLER V.
ADERHOLD, 288 U.S. 206, 211. 

IF THEN THE POWER TO SET ASIDE AND INCREASE THE PRISON TERM OF THE
ORIGINAL SENTENCE IS TO BE INFERRED AT ALL FROM SEC. 2, IT MUST BE
DRAWN FROM THE CLAUSE WHICH EMPOWERS THE COURT AFTER REVOCATION OF THE
PROBATION AND THE SUSPENSION OF SENTENCE TO "IMPOSE ANY SENTENCE WHICH
MIGHT ORIGINALLY HAVE BEEN IMPOSED."  IT IS UNDISPUTED IN THE INSTANT
CASE THAT THE COURT COULD ORIGINALLY HAVE IMPOSED A THREE-YEAR
SENTENCE.  THEREFORE THE EXISTENCE OF POWER TO SET ASIDE THE FIRST
JUDGMENT IN ORDER TO INCREASE THE SENTENCE WOULD BE A PERFECTLY LOGICAL
INFERENCE FROM THE CLAUSE IF IT STOOD ALONE, BECAUSE TWO VALID
SENTENCES FOR THE SAME CONVICTION CANNOT COEXIST.  BUT THE CLAUSE
CANNOT BE READ IN ISOLATION; IT MUST BE READ IN THE CONTEXT OF THE
ENTIRE ACT.  AND IN THE ABSENCE OF COMPELLING LANGUAGE WE SHOULD NOT
READ INTO IT AN INFERRED GRANT OF POWER WHICH NECESSARILY WOULD BRING
IT INTO IRRECONCILABLE CONFLICT WITH OTHER PROVISIONS OF THE ACT. 

TO ACCEPT THE GOVERNMENT'S INTERPRETATION OF THIS CLAUSE WOULD
PRODUCE SUCH A CONFLICT.  SECTION 1 OF THE THE PROBATION ACT PROVIDES
THE PROCEDURAL PLAN FOR RELEASE ON PROBATION.  AFTER JUDGMENT OF GUILT,
THE TRIAL COURT IS AUTHORIZED "TO SUSPEND THE IMPOSITION OR EXECUTION
OF SENTENCE AND TO PLACE THE DEFENDANT UPON PROBATION.  ..."  BY THIS
LANGUAGE CONGRESS CONFERRED UPON THE COURT A CHOICE BETWEEN IMPOSING
SENTENCE BEFORE PROBATION IS AWARDED OR AFTER PROBATION IS REVOKED.  IN
THE FIRST INSTANCE THE DEFENDANT WOULD BE SENTENCED IN OPEN COURT TO
IMPRISONMENT FOR A DEFINITE PERIOD; IN THE SECOND, HE WOULD BE INFORMED
IN OPEN COURT THAT THE IMPOSITION OF SENTENCE WAS BEING POSTPONED.  IN
BOTH INSTANCES HE THEN WOULD BE INFORMED OF HIS RELEASE ON PROBATION
UPON CONDITIONS FIXED BY THE COURT.  THE DIFFERENCE IN THE ALTERNATIVE
METHODS IS PLAIN.  UNDER THE FIRST, WHERE EXECUTION OF SENTENCE IS
SUSPENDED, THE DEFENDANT LEAVES THE COURT WITH KNOWLEDGE THAT A FIXED
SENTENCE FOR A DEFINITE TERM OF IMPRISONMENT HANGS OVER HIM; UNDER THE
SECOND, HE IS MADE AWARE THAT NO DEFINITE SENTENCE HAS BEEN IMPOSED AND
THAT IF HIS PROBATION IS REVOKED THE COURT WILL AT THAT TIME FIX THE
TERM OF HIS IMPRISONMENT.  IT IS AT ONCE APPARENT THAT IF WE ACCEPT THE
GOVERNMENT'S INTERPRETATION THIS EXPRESS DISTINCTION WHICH SEC. 1 DRAWS
BETWEEN THE ALTERNATIVE METHODS OF IMPOSING SENTENCE WOULD BE
COMPLETELY OBLITERATED.  IN THE WORDS OF THE GOVERNMENT, ANY SENTENCE
PRONOUNCED UPON THE DEFENDANT BEFORE HIS RELEASE ON PROBATION WOULD BE
A "DEAD LETTER."  THUS THE EXPRESS POWER TO SUSPEND EXECUTION OF
SENTENCE GRANTED BY SEC. 1 WOULD, BY AN INFERENCE DRAWN FROM SEC. 2, BE
REDUCED TO A MEANINGLESS FORMALITY.  NO PERSUASIVE REASONS RELATING TO
CONGRESSIONAL OR ADMINISTRATIVE POLICY HAVE BEEN SUGGESTED TO US WHICH
JUSTIFY CONSTRUING SEC. 2 IN THIS MANNER. 

THE TEN-YEAR LEGISLATIVE HISTORY OF THE PROBATION ACT STRONGLY
SUGGESTS THAT CONGRESS INTENDED TO DRAW A SHARP DISTINCTION BETWEEN THE
POWER TO SUSPEND EXECUTION OF A SENTENCE AND THE ALTERNATIVE POWER TO
DEFER ITS IMPOSITION.  THE FIRST PROBATION LEGISLATION WAS PASSED BY
CONGRESS IN 1917 BUT FAILED TO RECEIVE THE PRESIDENT'S SIGNATURE.  AS
ORIGINALLY INTRODUCED THIS BILL PROVIDED ONLY FOR THE SUSPENSION OF
IMPOSITION OF SENTENCE.  FN4  AFTER EXTENDED HEARINGS THE SENATE
JUDICIARY COMMITTEE REPORTED IT WITH AMENDMENTS INCLUDING TWO WHICH
WERE INTENDED TO GRANT COURTS POWER TO CHOOSE BETWEEN SUSPENDING
IMPOSITION AND SUSPENDING EXECUTION.  FN5  BUT WHEN THE BILL FINALLY
PASSED BOTH HOUSES THE POWER TO SUSPEND IMPOSITION HAD BEEN ELIMINATED
AND ONLY THE POWER TO SUSPEND EXECUTION REMAINED.  FN6  BETWEEN 1917
AND 1925, WHEN THE PRESENT ACT WAS PASSED AND APPROVED BY THE
PRESIDENT, THE SEVERAL CONGRESSIONAL COMMITTEES INTERESTED IN PROBATION
LEGISLATION CONSIDERED NUMEROUS BILLS.  SOME PROVIDED ONLY FOR
SUSPENSION OF IMPOSITION, SOME ONLY FOR SUSPENSION OF EXECUTION, AND
SOME FOR EITHER METHOD AS THE COURT SAW FIT.  FN7  DURING THIS PERIOD
THERE WERE ADVOCATES OF THOSE BILLS WHICH PROVIDED FOR THE SUSPENSION
OF IMPOSITION OF SENTENCE, BUT OTHERS OPPOSED SUCH BILLS.  ATTORNEY
GENERAL PALMER, BELONGING TO THE LATTER GROUP, EXPRESSED HIS OPPOSITION
TO A BILL WHICH PROVIDED FOR THE SUSPENSION OF IMPOSITION, POINTING OUT
THAT, "THE JUDGE MAY ALSO, IN HIS DISCRETION, TERMINATE THE PROBATION
AT ANY TIME WITHIN THE PERIOD SPECIFIED AND REQUIRE THE DEFENDANT TO
SERVE NOT A SENTENCE WHICH HAD BEEN ORIGINALLY PRONOUNCED UPON HIM, BUT
A SENTENCE TO BE PRONOUNCED AT THE TIME OF THE TERMINATION OF THE
PROBATION FOR THE ACT CONTEMPLATES THAT IN GRANTING PROBATION A COURT
SUSPENDS EVEN THE IMPOSITION OF A SENTENCE.  ...  THE CONFERRING OF
SUCH POWERS UPON JUDGES WOULD NOT, IT SEEMS TO ME, CONTRIBUTE TO THE
PROPER AND UNIFORM ADMINISTRATION OF CRIMINAL JUSTICE."  FN8  IN THE
END CONGRESS DECLINED TO ADOPT ONE METHOD OF SUSPENSION TO THE
EXCLUSION OF THE OTHER AND INSTEAD GRANTED THE COURTS POWER TO APPLY
EITHER METHOD ACCORDING TO THE CIRCUMSTANCES OF EACH INDIVIDUAL CASE. 
FROM THIS COMPROMISE OF THE CONFLICTING VIEWS ON THE PROPER METHOD OF
SUSPENSION WE MAY CONCLUDE THAT CONGRESS INDICATED APPROVAL OF THE
NATURAL CONSEQUENCES OF THE APPLICATION OF EACH METHOD.  AS UNDERSTOOD
BY ATTORNEY GENERAL PALMER ONE OF THESE CONSEQUENCES WAS THAT WHEN THE
METHOD OF SUSPENSION OF EXECUTION WAS USED THE DEFENDANT COULD BE
REQUIRED TO SERVE ONLY THE SENTENCE WHICH HAD BEEN ORIGINALLY
PRONOUNCED UPON HIM. 

A CONSTRUCTION OF THE ACT TO PRESERVE THE DISTINCTIVE CHARACTERISTICS
OF THE TWO METHODS OF SUSPENSION IS NOT INCONSISTENT WITH THE MANNER IN
WHICH IT HAS BEEN ENFORCED AND ADMINISTERED.  FROM THE PASSAGE OF THE
ACT UNTIL 1940  FN9  THE ATTORNEY GENERAL EXERCISED SUPERVISION OVER
ADMINISTRATION OF THE ACT.  FN10  IN 1930 THE ATTORNEY GENERAL IN A
CAREFULLY CONSIDERED OPINION REACHED THE CONCLUSION THAT IF CONGRESS
HAD INTENDED BY SEC. 2 OF THE PROBATION ACT "TO CREATE SUCH AN
IMPORTANT POWER, (AS THAT FOR WHICH THE GOVERNMENT HERE CONTENDS) IT
WOULD SEEM THAT MORE EXPLICIT LANGUAGE WOULD HAVE BEEN USED."  36
O.A.G. 186, 192.  A COMPREHENSIVE TWO-VOLUME REPORT BY THE ATTORNEY
GENERAL ENTITLED "SURVEY OF RELEASE PROCEDURES" PUBLISHED IN 1939
ADOPTED THIS INTERPRETATION OF SEC. 2:  "WHERE IMPOSITION OF SENTENCE
WAS ORIGINALLY SUSPENDED AND PROBATION GRANTED, AND THE PROBATION AND
SUSPENSION ARE LATER REVOKED, IT IS PLAIN THAT BEFORE THE OFFENDER CAN
BE IMPRISONED IMPOSITION OF SENTENCE IS NECESSARY.  AND SINCE THE CASE
REVERTS TO ITS STATUS AT THE TIME PROBATION WAS GRANTED, THE COURT
CLEARLY IS FREE TO IMPOSE 'ANY SENTENCE WHICH MIGHT ORIGINALLY HAVE
BEEN IMPOSED.'  18 U.S.C. SEC. 725(1934).  BUT WHERE THE COURT IMPOSED
SENTENCE BUT SUSPENDED THE EXECUTION OF IT, IT WOULD SEEM THAT WHEN THE
SUSPENSION OF EXECUTION IS REVOKED THE ORIGINAL SENTENCE BECOMES
OPERATIVE."  SIGNIFICANTLY, THE REPORT FURTHER POINTED OUT THAT "NO
CASE HAS BEEN FOUND WHEREIN THE COURT, UPON REVOCATION OF SUSPENSION OF
EXECUTION, INCREASED THE ORIGINAL SENTENCE."  FN11 

SO FAR AS POINTED OUT TO US THE PRESENT AND TWO OTHER CASES ARE THE
ONLY ONES IN WHICH FEDERAL COURTS HAVE, UPON REVOCATION OF PROBATION,
INCREASED A DEFINITE SENTENCE WHICH HAD BEEN IMPOSED UPON AN OFFENDER
PRIOR TO HIS RELEASE ON PROBATION.  CF. UNITED STATES V. MOORE, 101
F.2D 56; REMER V. REGAN, 104 F.2D 704.  THE MOORE CASE WAS DECIDED
JANUARY 16, 1939, WITHOUT DISCUSSION OF THE POWER OF THE COURT TO
INCREASE THE SENTENCE.  THE REGAN CASE WAS DECIDED MAY 26, 1939, AND
THE COURT POINTED OUT THAT DEFENDANT APPARENTLY CONCEDED THAT
IMPOSITION OF AN INCREASED SENTENCE WAS AUTHORIZED BY THE PROBATION
ACT.  WE HAVE, THEREFORE, AN ADMINISTRATION OF THE PROBATION LAW FROM
ITS PASSAGE IN 1925 UNTIL 1939, IN WHICH THE ATTORNEY GENERAL NOT ONLY
ASSUMED BUT EXPRESSLY STATED BY OFFICIAL OPINION THAT A DEFINITE
SENTENCE, EXECUTION OF WHICH HAD BEEN SUSPENDED, COULD NOT BE INCREASED
AFTER THE SUSPENSION HAD BEEN REVOKED FOR BREACH OF PROBATION
CONDITIONS; AND IN WHICH THE FEDERAL COURTS HAD APPARENTLY NOT
UNDERTAKEN TO ACT CONTRARY TO THE ATTORNEY GENERAL'S INTERPRETATION. 

TO CONSTRUE THE PROBATION ACT AS NOT PERMITTING THE INCREASE OF A
DEFINITE TERM OF IMPRISONMENT FIXED BY A PRIOR VALID SENTENCE GIVES
FULL MEANING AND EFFECT BOTH TO THE FIRST AND SECOND SECTIONS OF THE
ACT.  IN NO WAY DOES IT IMPAIR THE ACT'S USEFULNESS AS AN INSTRUMENT TO
ACCOMPLISH THE BASIC PURPOSE OF PROBATION, NAMELY TO PROVIDE AN
INDIVIDUALIZED PROGRAM OFFERING A YOUNG OR UNHARDENED OFFENDER AN
OPPORTUNITY TO REHABILITATE HIMSELF WITHOUT INSTITUTIONAL CONFINEMENT
UNDER THE TUTELAGE OF A PROBATION OFFICIAL AND UNDER THE CONTINUING
POWER OF THE COURT TO IMPOSE INSTITUTIONAL PUNISHMENT FOR HIS ORIGINAL
OFFENSE IN THE EVENT THAT HE ABUSE THIS OPPORTUNITY.  TO ACCOMPLISH
THIS BASIC PURPOSE CONGRESS VESTED WIDE DISCRETION IN THE COURTS.  SEE
BURNS V. UNITED STATES, 287 U.S. 216.  THUS CONGRESS CONFERRED UPON THE
COURTS THE POWER TO DECIDE IN EACH CASE WHETHER TO IMPOSE A DEFINITE
TERM OF IMPRISONMENT IN ADVANCE OF PROBATION OR TO DEFER THE IMPOSITION
OF SENTENCE, THE ALTERNATIVE TO BE ADOPTED TO DEPEND UPON THE CHARACTER
AND CIRCUMSTANCES OF THE INDIVIDUAL OFFENDER.  ALL WE NOW HOLD IS THAT
HAVING EXERCISED ITS DISCRETION BY SENTENCING AN OFFENDER TO A DEFINITE
TERM OF IMPRISONMENT IN ADVANCE OF PROBATION, A COURT MAY NOT LATER
UPON REVOCATION OF PROBATION SET ASIDE THAT SENTENCE AND INCREASE THE
TERM OF IMPRISONMENT.  REVERSED.    FN1  43 STAT. 1259; 46 STAT. 503;
48 STAT. 256; 53 STAT. 1223, 1225; U.S.C. TITLE 18, SECS. 724-728. 

FN2  "AT ANY TIME WITHIN THE PROBATION PERIOD THE PROBATION OFFICER
MAY ARREST THE PROBATIONER ...  OR THE COURT WHICH HAS GRANTED THE
PROBATION MAY ISSUE A WARRANT FOR HIS ARREST,  ...  (AND) SUCH
PROBATIONER SHALL FORTHWITH BE TAKEN BEFORE THE COURT.  ...  THEREUPON
THE COURT MAY REVOKE THE PROBATION OR THE SUSPENSION OF SENTENCE, AND
MAY IMPOSE ANY SENTENCE WHICH MIGHT ORIGINALLY HAVE BEEN IMPOSED."  43
STAT. 1260; 48 STAT. 256. 

FN3  CF. UNITED STATES V. PILE, 130 U.S. 280; UNITED STATES V. WEISS,
28 F.SUPP.  598, 599; PERNATTO V. UNITED STATES, 107 F.2D 372; KRIEBEL
V. UNITED STATES, 10 F.2D 762; ACKERSON V. UNITED STATES, 15 F.2D 268,
269; MOSS V. UNITED STATES, 72 F.2D 30, 32; KING V. COMMONWEALTH, 246
MASS. 57, 60, 140 N.E. 253; BELDEN V. HUGO, 88 CONN. 500, 504, 91 A.
369; IN RE HALL, 100 VT. 197, 202, 136 A. 24. 

FN4  HEARINGS BEFORE SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,
U.S. SENATE, ON S. 1092, 64TH CONG., 1ST SESS., MARCH 25, 1916, PP. 5,
6. 

FN5  REPORT NO. 887, SENATE COMMITTEE ON THE JUDICIARY, 64TH CONG.,
2D SESS. 

FN6  54 CONG. REC. 3637, 4373; HEARINGS BEFORE THE HOUSE COMMITTEE ON
THE JUDICIARY, 66TH CONG., 2D SESS., ON H.R. 340, 1111 AND 12036, MARCH
9, 1920, PP. 106-107, 112-113. 

FN7  SUMMARIES OF STATE LEGISLATION WERE INSERTED INTO THE RECORDS OF
THE COMMITTEE HEARINGS AND MANY WITNESSES DISCUSSED SUCH LEGISLATION. 
SEE, E. G., IBID., 123-130, 38-44.  LIKE THE BILLS BEFORE CONGRESS, THE
STATE PROBATION ACTS WERE NOT UNIFORM IN THEIR TREATMENT OF SUSPENSION
OF SENTENCE. 

FN8  IBID., 105. 

FN9  IN 1940 ADMINISTRATION OF THE PROBATION SYSTEM WAS TRANSFERRED
TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS UNDER THE
PROVISIONS OF AN ACT PASSED AUGUST 7, 1939.  53 STAT. 1223, 1225. 

FN10  THE ORIGINAL ACT REQUIRED PROBATION OFFICERS TO "MAKE SUCH
REPORTS TO THE ATTORNEY GENERAL AS HE MAY AT ANY TIME REQUIRE."  43
STAT. 1261.  IN JUNE, 1925, THREE MONTHS AFTER ENACTMENT OF THE LAW,
THE ATTORNEY GENERAL SENT TO ALL UNITED STATES DISTRICT JUDGES A
MEMORANDUM OF SUGGESTIONS IN WHICH HE COMPREHENSIVELY DISCUSSED THE
DUTIES OF JUDGES AND PROBATION OFFICERS AND REQUESTED THAT MONTHLY
REPORTS BE MADE TO HIM CONCERNING THE PROBATION ACTIVITIES IN EACH
COURT.  SEE 1925 ANNUAL REPORTS AND PROCEEDINGS OF THE NATIONAL
PROBATION ASSOCIATION, 227-230.  IN 1930 AN AMENDMENT TO THE PROBATION
ACT STATED THAT THE ATTORNEY GENERAL SHOULD "ENDEAVOR BY ALL SUITABLE
MEANS TO PROMOTE THE EFFICIENT ADMINISTRATION OF THE PROBATION SYSTEM
AND THE ENFORCEMENT OF THE PROBATION LAWS IN ALL UNITED STATES
COURTS."  46 STAT. 503, 504.  SEE ALSO 53 STAT. 1225. 

FN11  ATTORNEY GENERAL'S SURVEY OF RELEASE PROCEDURES, VOL. I, P.
13.  ASSERTING THAT THERE IS A DISTINCTION BETWEEN A DECREASE AND AN
INCREASE OF SENTENCE, THE REPORT FURTHER STATED:  "HOWEVER, IT HAS BEEN
HELD THAT WHEN SUSPENSION OF EXECUTION IS REVOKED THE COURT MAY MODIFY
THE ORIGINAL SENTENCE SO AS TO DECREASE THE TERM OF IMPRISONMENT." 
IBID.  TWO CIRCUIT COURTS OF APPEALS HAD CONSTRUED THE ACT AS
AUTHORIZING IN THAT CIRCUMSTANCE A JUDGMENT WHICH REDUCED THE TERM OF
THE ORIGINAL SENTENCE.  UNITED STATES V. ANTINORI (C.C.A. 5), 59 F.2D
171; SCALIA V. UNITED STATES (C.C.A. 1), 62 F.2D 220. 

DISSENTING OPINION OF MR. JUSTICE FRANKFURTER, IN WHICH THE CHIEF
JUSTICE AND MR. JUSTICE REED CONCUR. 

THE DEVICE OF PROBATION GREW OUT OF A REALIZATION THAT TO MAKE THE
PUNISHMENT FIT THE CRIMINAL REQUIRES WISDOM SELDOM AVAILABLE
IMMEDIATELY AFTER CONVICTION.  IMPOSITION OF SENTENCE AT THAT TIME IS
MUCH TOO OFTEN AN OBLIGATION TO EXERCISE CAPRICE, AND TO MAKE CONVICTED
PERSONS SERVE SUCH A SENTENCE IS APT TO MAKE LAW A COLLABORATOR IN NEW
ANTI-SOCIAL CONSEQUENCES.  PROBATION IS AN EXPERIMENTAL DEVICE SERVING
BOTH SOCIETY AND THE OFFENDER.  IT ADDS THE MEANS FOR EXERCISING WISELY
THAT DISCRETION WHICH, WITHIN APPROPRIATE LIMITS, IS GIVEN TO COURTS. 
THE PROBATION SYSTEM WAS DEVISED TO ALLOW PERSONS GUILTY OF ANTISOCIAL
CONDUCT TO CONTINUE AT LARGE BUT UNDER APPROPRIATE SAFEGUARDS.  THE
HOPE OF THE SYSTEM IS THAT THE PROBATIONER WILL DERIVE ENCOURAGEMENT
AND COLLABORATION IN HIS ENDEAVORS TO REMAIN IN SOCIETY AND NEVER SERVE
A DAY IN PRISON.  THE FULFILLMENT OF THAT HOPE LARGELY RESTS ON THE
EFFICACY OF THE PROBATION SYSTEM, AND THAT DEPENDS ON A SUFFICIENT
NUMBER OF TRAINED AND SKILFUL PROBATION OFFICERS.  THUS THE PROBATION
SYSTEM IS IN EFFECT A RELIANCE ON THE FUTURE TO REVEAL TREATMENT
APPROPRIATE TO THE PROBATIONER.  IN THE NATURE OF THINGS, KNOWLEDGE
WHICH MAY THUS BE GAINED IS NOT GENERALLY AVAILABLE WHEN THE MOMENT FOR
CONVENTIONAL SENTENCING ARRIVES.  SINCE ASSESSMENT OF AN APPROPRIATE
PUNISHMENT IMMEDIATELY UPON CONVICTION BECOMES VERY LARGELY A JUDGMENT
BASED ON SPECULATION, THE FUNCTION OF PROBATION IS TO SUPPLANT SUCH
SPECULATIVE JUDGMENT BY JUDGMENT BASED ON EXPERIENCE.  FOR THIS REASON
PROBATION LAWS FIX A TOLERABLY LONG PERIOD OF PROBATION, AS, FOR
INSTANCE, THE FIVE-YEAR PERIOD OF THE FEDERAL PROBATION ACT. 

IN VIEW OF ALL THAT LED TO THE ADOPTION OF PROBATION AND THE LIGHT
ITS WORKINGS HAVE CAST, THE IMPOSITION OF A SUSPENDED TERM SENTENCE IS
MEANINGLESS IF INDEED IT DOES NOT CONTRADICT THE CENTRAL IDEA
UNDERLYING PROBATION.  A CONVICTED PERSON WHO IS GIVEN A TERM SENTENCE
AND THEN PLACED ON PROBATION HOPES NEVER TO SPEND A DAY IN PRISON.  THE
COURT RETURNING THE PROBATIONER TO THE COMMUNITY LIKEWISE ASSUMES THAT
THE INFLUENCE OF PROBATION WILL SAVE THE PROBATIONER FROM FUTURE
IMPRISONMENT.  TO TREAT THE PRONOUNCEMENT OF A TERM SENTENCE AS A KIND
OF BARGAIN WHEREBY THE PROBATIONER KNOWS THAT, NO MATTER WHAT, HE
CANNOT BE PUT IN PRISON BEYOND THE TERM SO NAMED IS TO GIVE A WHOLLY
UNREAL INTERPRETATION TO THE PROCEDURE.  WE CERTAINLY SHOULD NOT
COUNTENANCE THE NOTION THAT A PROBATIONER HAS A VESTED INTEREST IN THE
ORIGINAL SENTENCE NOR ENCOURAGE HIM TO WEIGH THE LENGTH OF SUCH A
SENTENCE AGAINST ANY ADVANTAGES HE MAY FIND IN VIOLATING HIS
PROBATION.  TO BIND THE COURT TO SUCH A SENTENCE IS UNDESIRABLE IN ITS
CONSEQUENCES AND VIOLATIVE OF THE PHILOSOPHY OF PROBATION.  AS WE
POINTED OUT VERY RECENTLY, THE DIFFERENCE TO A PROBATIONER BETWEEN
IMPOSITION OF SENTENCE FOLLOWED BY PROBATION AND SUSPENSION OF THE
IMPOSITION OF SENTENCE "IS ONE OF TRIFLING DEGREE."  KOREMATSU V.
UNITED STATES, 319 U.S. 432, 435.  THE FACT IS THAT TERM SENTENCES OF
WHICH THE EXECUTION IS SUSPENDED ARE LIKELY TO BE AS FULL OF VAGARIES
AND AS UNRELATED TO INSIGHT RELEVANT TO TREATMENT FOR PARTICULAR
INDIVIDUALS, AS ARE TERM SENTENCES THE EXECUTION OF WHICH IS NOT
SUSPENDED.  THE CAPRICIOUS NATURE OF SUCH DEFINED SENTENCES DOMINATES
ALL STATISTICAL AND OTHER EVIDENCE REGARDING CONVENTIONAL JUDICIAL
SENTENCING, E.G., CRIMINAL JUSTICE IN CLEVELAND (1922) 303 ET SEQ. AND
PARTICULARLY TABLES 20 AND 21, AND AMBARD V. ATTORNEY GENERAL FOR
TRINIDAD AND TOBAGO (1936) A.C. 322, AND HAS LED TO SUGGESTIONS FOR
MORE SCIENTIFIC METHODS OF SENTENCING, SEE SMITH, ALFRED E.,
PROGRESSIVE DEMOCRACY (1928) 209 ET SEQ.; WARNER AND CABOT, JUDGES AND
LAW REFORM (1936) 156 ET SEQ.; CANTOR, CRIME AND SOCIETY (1939) 254 ET
SEQ.; GLUECK, CRIMINAL CAREERS IN RETROSPECT (1943) C. XVII. 

IF THE EXPERIENCE OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK - THE DISTRICT HAVING THE HEAVIEST VOLUME OF FEDERAL CRIMINAL
PROSECUTIONS - IS A FAIR GUIDE, THE IMPOSITION OF SENTENCE IS MORE
FREQUENTLY SUSPENDED THAN IS ITS EXECUTION.  THE ONLY PRACTICAL RESULT
OF THE STRAINED READING OF THE POWERS OF THE DISTRICT COURTS BY THE
DECISION TODAY MAY WELL LEAD TRIAL JUDGES GENERALLY TO PLACE
PROBATIONERS ON PROBATION WITHOUT ANY TENTATIVE SENTENCE.  A
CONSTRUCTION WHICH LEADS TO SUCH A MERELY FORMAL RESULT, ONE SO EASILY
DEFEATED IN PRACTICE, SHOULD BE AVOIDED UNLESS THE PURPOSE, THE TEXT
AND THE LEGISLATIVE HISTORY OF THE ACT CONVERGE TOWARD IT.  THE POLICY
OF PROBATION CLEARLY COUNSELS AGAINST IT, AND NEITHER THE WORDS OF THE
ACT NOR THEIR LEGISLATIVE HISTORY CONTRADICT THAT POLICY.  SO FAR AS IT
IS SIGNIFICANT ON THIS PHASE, THE LEGISLATIVE HISTORY LOOKS AGAINST
RATHER THAN FOR SUCH AN UNDESIRABLE CONSTRUCTION.  IN CONTRAST TO THE
PRESENT ACT, THE FIRST MEASURE PASSED BY CONGRESS CONFERRED ONLY THE
POWER TO SUSPEND EXECUTION OF SENTENCE AND UPON ITS REVOCATION REQUIRED
THE DEFENDANT "TO SERVE THE SENTENCE  ...  ORIGINALLY IMPOSED."  H.R.
20414, 64TH CONG., 2D SESS. (1917).  THIS ENACTMENT SUFFERED A POCKET
VETO.  IN REPORTING THE PRESENT LEGISLATION TO THE HOUSE OF
REPRESENTATIVES, ITS COMMITTEE ON THE JUDICIARY EXPLAINED THAT "IN CASE
OF FAILURE TO OBSERVE THESE CONDITIONS (OF PROBATION), THOSE ON
PROBATION MAY BE RETURNED TO THE COURT FOR SENTENCE."  H. REPORT NO.
1377, 68TH CONG., 2D SESS., 2. 

AND THE TEXT OF THE LEGISLATION DOES NOT DEFEAT THIS POLICY. 
INDUBITABLY PETITIONER WAS ARRESTED AND BROUGHT BEFORE THE COURT DURING
HIS PERIOD OF PROBATION.  IN THAT EVENT THE STATUTE IS EXPLICIT IN ITS
DIRECTION THAT "THE COURT MAY REVOKE THE PROBATION  ...  AND MAY IMPOSE
ANY SENTENCE WHICH MIGHT ORIGINALLY HAVE BEEN IMPOSED."  THE COURT
HAVING FOLLOWED THE MANDATE OF THE STATUTE, IT SEEMS IRRELEVANT AND
UNIMPORTANT WHETHER PETITIONER BECAME A PROBATIONER EITHER BY A
POSTPONEMENT OF SENTENCE OR BY A SUSPENSION OF A SENTENCE ALREADY
IMPOSED.  WE CANNOT SAY THAT THE STATUTE DOES NOT CONTEMPLATE THAT THE
NEW SENTENCE WHICH IT AUTHORIZES SHALL BE EFFECTIVE.  THE OBVIOUS
PURPOSE IS THAT IT SHOULD BECOME SO EITHER BY SUPERSEDING ANY SENTENCE
EARLIER IMPOSED OR BY REVOKING THE SUSPENSION OF IMPOSITION OF SENTENCE
IF NONE WAS IMPOSED.  SUCH IS THE PLAIN MEANING AND EFFECT OF THE
DIRECTION THAT UPON THE ARREST OF THE PROBATIONER "THE COURT MAY REVOKE
THE PROBATION OR THE SUSPENSION OF SENTENCE, AND MAY IMPOSE ANY
SENTENCE WHICH MIGHT ORIGINALLY HAVE BEEN IMPOSED."  IN OTHER WORDS,
SUSPENSION WHETHER OF THE SENTENCE OR OF ITS EXECUTION LEAVES A TRIAL
COURT FREE TO COMMIT THE CRIMINAL TO PRISON IF HE FAILS TO MEET THE
TEST OF FREEDOM DURING THE PROBATIONARY PERIOD. 

IT WOULD BE STRANGE IF THE CONSTITUTION STOOD IN THE WAY OF A SYSTEM
SO DESIGNED FOR THE HUMANE TREATMENT OF OFFENDERS.  TO VEST IN COURTS
THE POWER OF ADJUSTING THE CONSEQUENCES OF CRIMINAL CONDUCT TO THE
CHARACTER AND CAPACITY OF AN OFFENDER, AS REVEALED BY A TESTING PERIOD
OF PROBATION, OF COURSE DOES NOT OFFEND THE SAFEGUARD OF THE FIFTH
AMENDMENT AGAINST DOUBLE PUNISHMENT.  BY FORBIDDING THAT NO PERSON
SHALL "BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF
LIFE OR LIMB," THAT AMENDMENT GUARDED AGAINST THE REPETITION OF HISTORY
BY TRYING A MAN TWICE IN A NEW AND INDEPENDENT CASE WHEN HE ALREADY HAD
BEEN TRIED ONCE, SEE HOLMES, J., IN KEPNER V. UNITED STATES, 195 U.S.
100, 134, OR PUNISHING HIM FOR AN OFFENSE WHEN HE HAD ALREADY SUFFERED
THE PUNISHMENT FOR IT.  BUT TO SET A MAN AT LARGE AFTER CONVICTION ON
CONDITION OF HIS GOOD BEHAVIOR AND ON DEFAULT OF SUCH CONDITION TO
INCARCERATE HIM, IS NEITHER TO TRY HIM TWICE NOR TO PUNISH HIM TWICE. 
IF CONGRESS SEES FIT, AS IT HAS SEEN FIT, TO EMPLOY SUCH A SYSTEM OF
CRIMINAL JUSTICE THERE IS NOTHING IN THE CONSTITUTION TO HINDER. 
..END :
















UNITED STATES V. DOTTERWEICH, 320 U.S. 277 


NO. 5.  ARGUED OCTOBER 12, 1943.  - DECIDED NOVEMBER 22, 1943.  - 131
F.2D 500, REVERSED. 


UPON REVIEW OF THE CONVICTION OF A CORPORATE OFFICER ON INFORMATIONS
CHARGING THE CORPORATION AND HIM WITH SHIPPING IN INTERSTATE COMMERCE
ADULTERATED AND MISBRANDED DRUGS, IN VIOLATION OF SEC. 301 OF THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT, HELD: 

1.  THE PROVISION OF SEC. 305 OF THE ACT, THAT BEFORE REPORTING A
VIOLATION TO THE UNITED STATES ATTORNEY THE ADMINISTRATOR SHALL GIVE TO
THE PERSON AGAINST WHOM SUCH PROCEEDING IS CONTEMPLATED A NOTICE AND AN
OPPORTUNITY TO PRESENT HIS VIEWS, DOES NOT CREATE A CONDITION PRECEDENT
TO A PROSECUTION UNDER THE ACT.  P. 278. 

2.  IT WAS OPEN TO THE JURY TO FIND THE OFFICER GUILTY THOUGH FAILING
TO FIND THE CORPORATION GUILTY.  P. 279. 

3.  WHERE THERE IS NO GUARANTY SUCH AS UNDER SEC. 303(C) OF THE ACT
AFFORDS IMMUNITY FROM PROSECUTION, THAT SECTION CAN NOT BE READ AS
RELIEVING CORPORATE OFFICERS AND AGENTS FROM LIABILITY FOR VIOLATION OF
SEC. 301.  P. 283. 

4.  THE DISTRICT COURT PROPERLY LEFT TO THE JURY THE QUESTION OF THE
OFFICER'S RESPONSIBILITY FOR THE SHIPMENT; AND THE EVIDENCE WAS
SUFFICIENT TO SUPPORT THE VERDICT.  P. 285. 

UNITED STATES V. DOTTERWEICH. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 318 U.S. 753, TO REVIEW THE REVERSAL OF A CONVICTION FOR
VIOLATION OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS WAS A PROSECUTION BEGUN BY TWO INFORMATIONS, CONSOLIDATED FOR
TRIAL, CHARGING BUFFALO PHARMACAL COMPANY, INC., AND DOTTERWEICH, ITS
PRESIDENT AND GENERAL MANAGER, WITH VIOLATIONS OF THE ACT OF CONGRESS
OF JUNE 25, 1938, C. 675, 52 STAT. 1040, 21 U.S.C. SECS. 301-392, KNOWN
AS THE FEDERAL FOOD, DRUG, AND COSMETIC ACT.  THE COMPANY, A JOBBER IN
DRUGS, PURCHASED THEM FROM THEIR MANUFACTURERS AND SHIPPED THEM,
REPACKED UNDER ITS OWN LABEL, IN INTERSTATE COMMERCE.  (NO QUESTION IS
RAISED IN THIS CASE REGARDING THE IMPLICATIONS THAT MAY PROPERLY ARISE
WHEN, ALTHOUGH THE MANUFACTURER GIVES THE JOBBER A GUARANTY, THE LATTER
THROUGH HIS OWN LABEL MAKES REPRESENTATIONS.)  THE INFORMATIONS WERE
BASED ON SEC. 301 OF THAT ACT (21 U.S.C. SEC. 331), PARAGRAPH (A) OF
WHICH PROHIBITS "THE INTRODUCTION OR DELIVERY FOR INTRODUCTION INTO
INTERSTATE COMMERCE OF ANY  ...  DRUG  ...  THAT IS ADULTERATED OR
MISBRANDED."  "ANY PERSON" VIOLATING THIS PROVISION IS, BY PARAGRAPH
(A) OF SEC. 303(21 U.S.C. SEC. 333), MADE "GUILTY OF A MISDEMEANOR." 
THREE COUNTS WENT TO THE JURY - TWO, FOR SHIPPING MISBRANDED DRUGS IN
INTERSTATE COMMERCE, AND A THIRD, FOR SO SHIPPING AN ADULTERATED DRUG. 
THE JURY DISAGREED AS TO THE CORPORATION AND FOUND DOTTERWEICH GUILTY
ON ALL THREE COUNTS.  WE START WITH THE FINDING OF THE CIRCUIT COURT OF
APPEALS THAT THE EVIDENCE WAS ADEQUATE TO SUPPORT THE VERDICT OF
ADULTERATION AND MISBRANDING.  131 F.2D 500, 502. 

TWO OTHER QUESTIONS WHICH THE CIRCUIT COURT OF APPEALS DECIDED
AGAINST DOTTERWEICH CALL ONLY FOR SUMMARY DISPOSITION TO CLEAR THE PATH
FOR THE MAIN QUESTION BEFORE US.  HE INVOKED SEC. 305 OF THE ACT
REQUIRING THE ADMINISTRATOR, BEFORE REPORTING A VIOLATION FOR
PROSECUTION BY A UNITED STATES ATTORNEY, TO GIVE THE SUSPECT AN
"OPPORTUNITY TO PRESENT HIS VIEWS."  WE AGREE WITH THE CIRCUIT COURT OF
APPEALS THAT THE GIVING OF SUCH AN OPPORTUNITY, WHICH WAS NOT ACCORDED
TO DOTTERWEICH, IS NOT A PREREQUISITE TO PROSECUTION.  THIS COURT SO
HELD IN UNITED STATES V. MORGAN, 222 U.S. 274, IN CONSTRUING THE FOOD
AND DRUGS ACT OF 1906, 34 STAT. 768, AND THE LEGISLATIVE HISTORY TO
WHICH THE COURT BELOW CALLED ATTENTION ABUNDANTLY PROVES THAT CONGRESS,
IN THE CHANGED PHRASEOLOGY OF 1938, DID NOT INTEND TO INTRODUCE A
CHANGE OF SUBSTANCE.  83 CONG. REC. 7792-94.  EQUALLY BASELESS IS THE
CLAIM OF DOTTERWEICH THAT, HAVING FAILED TO FIND THE CORPORATION
GUILTY, THE JURY COULD NOT FIND HIM GUILTY.  WHETHER THE JURY'S VERDICT
WAS THE RESULT OF CARELESSNESS OR COMPROMISE OR A BELIEF THAT THE
RESPONSIBLE INDIVIDUAL SHOULD SUFFER THE PENALTY INSTEAD OF MERELY
INCREASING, AS IT WERE, THE COST OF RUNNING THE BUSINESS OF THE
CORPORATION, IS IMMATERIAL.  JURIES MAY INDULGE IN PRECISELY SUCH
MOTIVES OR VAGARIES.  DUNN V. UNITED STATES, 284 U.S. 390. 

AND SO WE ARE BROUGHT TO OUR REAL PROBLEM.  THE CIRCUIT COURT OF
APPEALS, ONE JUDGE DISSENTING, REVERSED THE CONVICTION ON THE GROUND
THAT ONLY THE CORPORATION WAS THE "PERSON" SUBJECT TO PROSECUTION
UNLESS, PERCHANCE, BUFFALO PHARMACAL WAS A COUNTERFEIT CORPORATION
SERVING AS A SCREEN FOR DOTTERWEICH.  ON THAT ISSUE, AFTER REHEARING,
IT REMANDED THE CAUSE FOR A NEW TRIAL.  WE THEN BROUGHT THE CASE HERE,
ON THE GOVERNMENT'S PETITION FOR CERTIORARI, 318 U.S. 753, BECAUSE THIS
CONSTRUCTION RAISED QUESTIONS OF IMPORTANCE IN THE ENFORCEMENT OF THE
FEDERAL FOOD, DRUG, AND COSMETIC ACT. 

THE COURT BELOW DREW ITS CONCLUSION NOT FROM THE PROVISIONS DEFINING
THE OFFENSES ON WHICH THIS PROSECUTION WAS BASED (SECS. 301(A) AND
303(A)), BUT FROM THE TERMS OF SEC. 303(C).  THAT SECTION AFFORDS
IMMUNITY FROM PROSECUTION IF CERTAIN CONDITIONS ARE SATISFIED.  THE
CONDITION RELEVANT TO THIS CASE IS A GUARANTY FROM THE SELLER OF THE
INNOCENCE OF HIS PRODUCT.  SO FAR AS HERE RELEVANT, THE PROVISION FOR
AN IMMUNIZING GUARANTY IS AS FOLLOWS: 

"NO PERSON SHALL BE SUBJECT TO THE PENALTIES OF SUBSECTION (A) OF
THIS SECTION  ...  (2) FOR HAVING VIOLATED SECTION 301(A) OR (D), IF HE
ESTABLISHES A GUARANTY OR UNDERTAKING SIGNED BY, AND CONTAINING THE
NAME AND ADDRESS OF, THE PERSON RESIDING IN THE UNITED STATES FROM WHOM
HE RECEIVED IN GOOD FAITH THE ARTICLE, TO THE EFFECT, IN CASE OF AN
ALLEGED VIOLATION OF SECTION 301(A), THAT SUCH ARTICLE IS NOT
ADULTERATED OR MISBRANDED, WITHIN THE MEANING OF THIS ACT, DESIGNATING
THIS ACT  ...  " 

THE CIRCUIT COURT OF APPEALS FOUND IT "DIFFICULT TO BELIEVE THAT
CONGRESS EXPECTED ANYONE EXCEPT THE PRINCIPAL TO GET SUCH A GUARANTY,
OR TO MAKE THE GUILT OF AN AGENT DEPEND UPON WHETHER HIS EMPLOYER HAD
GOTTEN ONE."  131 F.2D 500, 503.  AND SO IT CUT DOWN THE SCOPE OF THE
PENALIZING PROVISIONS OF THE ACT TO THE RESTRICTIVE VIEW, AS A MATTER
OF LANGUAGE AND POLICY, IT TOOK OF THE RELIEVING EFFECT OF A GUARANTY. 

THE GUARANTY CLAUSE CANNOT BE READ IN ISOLATION.  THE FOOD AND DRUGS
ACT OF 1906 WAS AN EXERTION BY CONGRESS OF ITS POWER TO KEEP IMPURE AND
ADULTERATED FOOD AND DRUGS OUT OF THE CHANNELS OF COMMERCE.  BY THE ACT
OF 1938, CONGRESS EXTENDED THE RANGE OF ITS CONTROL OVER ILLICIT AND
NOXIOUS ARTICLES AND STIFFENED THE PENALTIES FOR DISOBEDIENCE.  THE
PURPOSES OF THIS LEGISLATION THUS TOUCH PHASES OF THE LIVES AND HEALTH
OF PEOPLE WHICH, IN THE CIRCUMSTANCES OF MODERN INDUSTRIALISM, ARE
LARGELY BEYOND SELF-PROTECTION.  REGARD FOR THESE PURPOSES SHOULD
INFUSE CONSTRUCTION OF THE LEGISLATION IF IT IS TO BE TREATED AS A
WORKING INSTRUMENT OF GOVERNMENT AND NOT MERELY AS A COLLECTION OF
ENGLISH WORDS.  SEE HIPOLITE EGG CO. V. UNITED STATES, 220 U.S. 45, 57,
AND MCDERMOTT V. WISCONSIN, 228 U.S. 115, 128.  THE PROSECUTION TO
WHICH DOTTERWEICH WAS SUBJECTED IS BASED ON A NOW FAMILIAR TYPE OF
LEGISLATION WHEREBY PENALTIES SERVE AS EFFECTIVE MEANS OF REGULATION. 
SUCH LEGISLATION DISPENSES WITH THE CONVENTIONAL REQUIREMENT FOR
CRIMINAL CONDUCT - AWARENESS OF SOME WRONGDOING.  IN THE INTEREST OF
THE LARGER GOOD IT PUTS THE BURDEN OF ACTING AT HAZARD UPON A PERSON
OTHERWISE INNOCENT BUT STANDING IN RESPONSIBLE RELATION TO A PUBLIC
DANGER.  UNITED STATES V. BALINT, 258 U.S. 250.  AND SO IT IS CLEAR
THAT SHIPMENTS LIKE THOSE NOW IN ISSUE ARE "PUNISHED BY THE STATUTE IF
THE ARTICLE IS MISBRANDED (OR ADULTERATED), AND THAT THE ARTICLE MAY BE
MISBRANDED (OR ADULTERATED) WITHOUT ANY CONSCIOUS FRAUD AT ALL.  IT WAS
NATURAL ENOUGH TO THROW THIS RISK ON SHIPPERS WITH REGARD TO THE
IDENTITY OF THEIR WARES  ...  "  UNITED STATES V. JOHNSON, 221 U.S.
488, 497-98. 

THE STATUTE MAKES "ANY PERSON" WHO VIOLATES SEC. 301(A) GUILTY OF A
"MISDEMEANOR."  IT SPECIFICALLY DEFINES "PERSON" TO INCLUDE
"CORPORATION."  SEC. 201(E).  BUT THE ONLY WAY IN WHICH A CORPORATION
CAN ACT IS THROUGH THE INDIVIDUALS WHO ACT ON ITS BEHALF.  NEW YORK
CENTRAL & H.R.R. CO. V. UNITED STATES, 212 U.S. 481.  AND THE HISTORIC
CONCEPTION OF A "MISDEMEANOR" MAKES ALL THOSE RESPONSIBLE FOR IT
EQUALLY GUILTY, UNITED STATES V. MILLS, 7 PET. 138, 141, A DOCTRINE
GIVEN GENERAL APPLICATION IN SEC. 332 OF THE PENAL CODE (18 U.S.C. SEC.
550).  IF, THEN, DOTTERWEICH IS NOT SUBJECT TO THE ACT, IT MUST BE
SOLELY ON THE GROUND THAT INDIVIDUALS ARE IMMUNE WHEN THE "PERSON" WHO
VIOLATES SEC. 301(A) IS A CORPORATION, ALTHOUGH FROM THE POINT OF VIEW
OF ACTION THE INDIVIDUALS ARE THE CORPORATION.  AS A MATTER OF LEGAL
DEVELOPMENT, IT HAS TAKEN TIME TO ESTABLISH CRIMINAL LIABILITY ALSO FOR
A CORPORATION AND NOT MERELY FOR ITS AGENTS.  SEE NEW YORK CENTRAL &
H.R.R. CO. V. UNITED STATES, SUPRA.  THE HISTORY OF FEDERAL FOOD AND
DRUG LEGISLATION IS A GOOD ILLUSTRATION OF THE ELABORATE PHRASING THAT
WAS IN EARLIER DAYS DEEMED NECESSARY TO FASTEN CRIMINAL LIABILITY ON
CORPORATIONS.  SECTION 12 OF THE FOOD AND DRUGS ACT OF 1906 PROVIDED
THAT, "THE ACT, OMISSION, OR FAILURE OF ANY OFFICER, AGENT, OR OTHER
PERSON ACTING FOR OR EMPLOYED BY ANY CORPORATION, COMPANY, SOCIETY, OR
ASSOCIATION, WITHIN THE SCOPE OF HIS EMPLOYMENT OR OFFICE, SHALL IN
EVERY CASE BE ALSO DEEMED TO BE THE ACT, OMISSION, OR FAILURE OF SUCH
CORPORATION, COMPANY, SOCIETY, OR ASSOCIATION AS WELL AS THAT OF THE
PERSON."  BY 1938, LEGAL UNDERSTANDING AND PRACTICE HAD RENDERED SUCH
STATEMENT OF THE OBVIOUS SUPERFLUOUS.  DELETION OF WORDS - IN THE
INTEREST OF BREVITY AND GOOD DRAFTSMANSHIP  FN1  - SUPER-FLUOUS FOR
HOLDING A CORPORATION CRIMINALLY LIABLE CAN HARDLY BE FOUND GROUND FOR
RELIEVING FROM SUCH LIABILITY THE INDIVIDUAL AGENTS OF THE
CORPORATION.  TO HOLD THAT THE ACT OF 1938 FREED ALL INDIVIDUALS,
EXCEPT WHEN PROPRIETORS, FROM THE CULPABILITY UNDER WHICH THE EARLIER
LEGISLATION HAD PLACED THEM IS TO DEFEAT THE VERY OBJECT OF THE NEW
ACT.  NOTHING IS CLEARER THAN THAT THE LATER LEGISLATION WAS DESIGNED
TO ENLARGE AND STIFFEN THE PENAL NET AND NOT TO NARROW AND LOOSEN IT.
THIS PURPOSE WAS UNEQUIVOCALLY AVOWED BY THE TWO COMMITTEES WHICH
REPORTED THE BILLS TO THE CONGRESS.  THE HOUSE COMMITTEE REPORTED THAT
THE ACT "SEEKS TO SET UP EFFECTIVE PROVISIONS AGAINST ABUSES OF
CONSUMER WELFARE GROWING OUT OF INADEQUACIES IN THE FOOD AND DRUGS ACT
OF JUNE 30, 1906."  (H. REP. NO. 2139, 75TH CONG., 3D SESS., P. 1.) 
AND THE SENATE COMMITTEE EXPLICITLY POINTED OUT THAT THE NEW
LEGISLATION "MUST NOT WEAKEN THE EXISTING LAWS," BUT ON THE CONTRARY
"IT MUST STRENGTHEN AND EXTEND THAT LAW'S PROTECTION OF THE CONSUMER." 
(S. REP. NO. 152, 75TH CONG., 1ST SESS., P. 1.)  IF THE 1938 ACT WERE
CONSTRUED AS IT WAS BELOW, THE PENALTIES OF THE LAW COULD BE IMPOSED
ONLY IN THE RARE CASE WHERE THE CORPORATION IS MERELY AN INDIVIDUAL'S
ALTER EGO.  CORPORATIONS CARRYING ON AN ILLICIT TRADE WOULD BE SUBJECT
ONLY TO WHAT THE HOUSE COMMITTEE DESCRIBED AS A "LICENSE FEE FOR THE
CONDUCT OF AN ILLEGITIMATE BUSINESS."  FN2  A CORPORATE OFFICER, WHO
EVEN WITH "INTENT TO DEFRAUD OR MISLEAD" (SEC. 303B), INTRODUCED
ADULTERATED OR MISBRANDED DRUGS INTO INTERSTATE COMMERCE COULD NOT BE
HELD CULPABLE FOR CONDUCT WHICH WAS INDUBITABLY OUTLAWED BY THE 1906
ACT.  SEE, E.G., UNITED STATES V. MAYFIELD, 177 F. 765.  THIS ARGUMENT
PROVES TOO MUCH.  IT IS NOT CREDIBLE THAT CONGRESS SHOULD BY
IMPLICATION HAVE EXONERATED WHAT IS PROBABLY A PREPONDERANT NUMBER OF
PERSONS INVOLVED IN ACTS OF DISOBEDIENCE - FOR THE NUMBER OF NON
CORPORATE PROPRIETORS IS RELATIVELY SMALL.  CONGRESS, OF COURSE, COULD
REVERSE THE PROCESS AND HOLD ONLY THE CORPORATION AND ALLOW ITS AGENTS
TO ESCAPE.  IN VERY EXCEPTIONAL CIRCUMSTANCES IT MAY HAVE REQUIRED THIS
RESULT.  SEE SHERMAN V. UNITED STATES, 282 U.S. 25.  BUT THE HISTORY OF
THE PRESENT ACT, ITS PURPOSES, ITS TERMS, AND EXTENDED PRACTICAL
CONSTRUCTION LEAD AWAY FROM SUCH A RESULT ONCE "WE FREE OUR MINDS FROM
THE NOTION THAT CRIMINAL STATUTES MUST BE CONSTRUED BY SOME ARTIFICIAL
AND CONVENTIONAL RULE."  UNITED STATES V. UNION SUPPLY CO., 215 U.S.
50, 55. 

THE ACT IS CONCERNED NOT WITH THE PROPRIETORY RELATION TO A
MISBRANDED OR AN ADULTERATED DRUG BUT WITH ITS DISTRIBUTION.  IN THE
CASE OF A CORPORATION SUCH DISTRIBUTION MUST BE ACCOMPLISHED, AND MAY
BE FURTHERED, BY PERSONS STANDING IN VARIOUS RELATIONS TO THE
INCORPOREAL PROPRIETOR.  IF A GUARANTY IMMUNIZES SHIPMENTS OF COURSE IT
IMMUNIZES ALL INVOLVED IN THE SHIPMENT.  BUT SIMPLY BECAUSE IF THERE
HAD BEEN A GUARANTY IT WOULD HAVE BEEN RECEIVED BY THE PROPRIETOR,
WHETHER CORPORATE OR INDIVIDUAL, AS A SAFEGUARD FOR THE ENTERPRISE, THE
WANT OF A GUARANTY DOES NOT CUT DOWN THE SCOPE OF RESPONSIBILITY OF ALL
WHO ARE CONCERNED WITH TRANSACTIONS FORBIDDEN BY SEC. 301.  TO BE SURE,
THAT CASTS THE RISK THAT THERE IS NO GUARANTY UPON ALL WHO ACCORDING TO
SETTLED DOCTRINES OF CRIMINAL LAW ARE RESPONSIBLE FOR THE COMMISSION OF
A MISDEMEANOR.  TO READ THE GUARANTY SECTION, AS DID THE COURT BELOW,
SO AS TO RESTRICT LIABILITY FOR PENALTIES TO THE ONLY PERSON WHO
NORMALLY WOULD RECEIVE A GUARANTY - THE PROPRIETOR - DISREGARDS THE
ADMONITION THAT "THE MEANING OF A SENTENCE IS TO BE FELT RATHER THAN TO
BE PROVED."  UNITED STATES V. JOHNSON, 221 U.S. 488, 496.  IT ALSO
READS AN EXCEPTION TO AN IMPORTANT PROVISION SAFEGUARDING THE PUBLIC
WELFARE WITH A LIBERALITY WHICH MORE APPROPRIATELY BELONGS TO
ENFORCEMENT OF THE CENTRAL PURPOSE OF THE ACT. 

THE CIRCUIT COURT OF APPEALS WAS EVIDENTLY TEMPTED TO MAKE SUCH A
DEVITALIZING USE OF THE GUARANTY PROVISION THROUGH FEAR THAT AN
ENFORCEMENT OF SEC. 301(A) AS WRITTEN MIGHT OPERATE TOO HARSHLY BY
SWEEPING WITHIN ITS CONDEMNATION ANY PERSON HOWEVER REMOTELY ENTANGLED
IN THE PROSCRIBED SHIPMENT.  BUT THAT IS NOT THE WAY TO READ
LEGISLATION.  LITERALISM AND EVISCERATION ARE EQUALLY TO BE AVOIDED. 
TO SPEAK WITH TECHNICAL ACCURACY, UNDER SEC. 301 A CORPORATION MAY
COMMIT AN OFFENSE AND ALL PERSONS WHO AID AND ABET ITS COMMISSION ARE
EQUALLY GUILTY.  WHETHER AN ACCUSED SHARES RESPONSIBILITY IN THE
BUSINESS PROCESS RESULTING IN UNLAWFUL DISTRIBUTION DEPENDS ON THE
EVIDENCE PRODUCED AT THE TRIAL AND ITS SUBMISSION - ASSUMING THE
EVIDENCE WARRANTS IT - TO THE JURY UNDER APPROPRIATE GUIDANCE.  THE
OFFENSE IS COMMITTED, UNLESS THE ENTERPRISE WHICH THEY ARE SERVING
ENJOYS THE IMMUNITY OF A GUARANTY, BY ALL WHO DO HAVE SUCH A
RESPONSIBLE SHARE IN THE FURTHERANCE OF THE TRANSACTION WHICH THE
STATUTE OUTLAWS, NAMELY, TO PUT INTO THE STREAM OF INTERSTATE COMMERCE
ADULTERATED OR MISBRANDED DRUGS.  HARDSHIP THERE DOUBTLESS MAY BE UNDER
A STATUTE WHICH THUS PENALIZES THE TRANSACTION THOUGH CONSCIOUSNESS OF
WRONGDOING BE TOTALLY WANTING.  BALANCING RELATIVE HARDSHIPS, CONGRESS
HAS PREFERRED TO PLACE IT UPON THOSE WHO HAVE AT LEAST THE OPPORTUNITY
OF INFORMING THEMSELVES OF THE EXISTENCE OF CONDITIONS IMPOSED FOR THE
PROTECTION OF CONSUMERS BEFORE SHARING IN ILLICIT COMMERCE, RATHER THAN
TO THROW THE HAZARD ON THE INNOCENT PUBLIC WHO ARE WHOLLY HELPLESS. 

IT WOULD BE TOO TREACHEROUS TO DEFINE OR EVEN TO INDICATE BY WAY OF
ILLUSTRATION THE CLASS OF EMPLOYEES WHICH STANDS IN SUCH A RESPONSIBLE
RELATION.  TO ATTEMPT A FORMULA EMBRACING THE VARIETY OF CONDUCT
WHEREBY PERSONS MAY RESPONSIBLY CONTRIBUTE IN FURTHERING A TRANSACTION
FORBIDDEN BY AN ACT OF CONGRESS, TO WIT, TO SEND ILLICIT GOODS ACROSS
STATE LINES, WOULD BE MISCHIEVOUS FUTILITY.  IN SUCH MATTERS THE GOOD
SENSE OF PROSECUTORS, THE WISE GUIDANCE OF TRIAL JUDGES, AND THE
ULTIMATE JUDGMENT OF JURIES MUST BE TRUSTED.  OUR SYSTEM OF CRIMINAL
JUSTICE NECESSARILY DEPENDS ON "CONSCIENCE AND CIRCUMSPECTION IN
PROSECUTING OFFICERS," NASH V. UNITED STATES, 229 U.S. 373, 378, EVEN
WHEN THE CONSEQUENCES ARE FAR MORE DRASTIC THAN THEY ARE UNDER THE
PROVISION OF LAW BEFORE US.  SEE UNITED STATES V. BALINT, SUPRA
(INVOLVING A MAXIMUM SENTENCE OF FIVE YEARS).  FOR PRESENT PURPOSE IT
SUFFICES TO SAY THAT IN WHAT THE DEFENSE CHARACTERIZED AS "A VERY FAIR
CHARGE" THE DISTRICT COURT PROPERLY LEFT THE QUESTION OF THE
RESPONSIBILITY OF DOTTERWEICH FOR THE SHIPMENT TO THE JURY, AND THERE
WAS SUFFICIENT EVIDENCE TO SUPPORT ITS VERDICT.  REVERSED. 

FN1  "THE BILL HAS BEEN MADE SHORTER AND LESS VERBOSE THAN PREVIOUS
BILLS.  THAT HAS BEEN DONE WITHOUT DELETING ANY EFFECTIVE PROVISIONS." 
S. REP. NO. 152, 75TH CONG., 1ST SESS., P. 2. 

FN2  IN DESCRIBING THE PENALTY PROVISIONS OF SEC. 303, THE HOUSE
COMMITTEE REPORTED THAT THE BILL "INCREASES SUBSTANTIALLY THE CRIMINAL
PENALTIES  ...  WHICH SOME MANUFACTURERS HAVE REGARDED AS SUBSTANTIALLY
A LICENSE FEE FOR THE CONDUCT OF AN ILLEGITIMATE BUSINESS."  H. REP.
NO. 2139, 75TH CONG., 3D SESS., P. 4. 

MR. JUSTICE MURPHY, DISSENTING: 

OUR PRIME CONCERN IN THIS CASE IS WHETHER THE CRIMINAL SANCTIONS OF
THE FEDERAL FOOD, DRUG, AND COSMETIC ACT OF 1938 PLAINLY AND
UNMISTAKABLY APPLY TO THE RESPONDENT IN HIS CAPACITY AS A CORPORATE
OFFICER.  HE IS CHARGED WITH VIOLATING SEC. 301(A) OF THE ACT, WHICH
PROHIBITS THE INTRODUCTION OR DELIVERY FOR INTRODUCTION INTO INTERSTATE
COMMERCE OF ANY ADULTERATED OR MISBRANDED DRUG.  THERE IS NO EVIDENCE
IN THIS CASE OF ANY PERSONAL GUILT ON THE PART OF THE RESPONDENT. 
THERE IS NO PROOF OR CLAIM THAT HE EVER KNEW OF THE INTRODUCTION INTO
COMMERCE OF THE ADULTERATED DRUGS IN QUESTION, MUCH LESS THAT HE
ACTIVELY PARTICIPATED IN THEIR INTRODUCTION.  GUILT IS IMPUTED TO THE
RESPONDENT SOLELY ON THE BASIS OF HIS AUTHORITY AND RESPONSIBILITY AS
PRESIDENT AND GENERAL MANAGER OF THE CORPORATION. 

IT IS A FUNDAMENTAL PRINCIPLE OF ANGLO-SAXON JURISPRUDENCE THAT GUILT
IS PERSONAL AND THAT IT OUGHT NOT LIGHTLY TO BE IMPUTED TO A CITIZEN
WHO, LIKE THE RESPONDENT, HAS NO EVIL INTENTION OR CONSCIOUSNESS OF
WRONGDOING.  IT MAY BE PROPER TO CHARGE HIM WITH RESPONSIBILITY TO THE
CORPORATION AND THE STOCKHOLDERS FOR NEGLIGENCE AND MISMANAGEMENT.  BUT
IN THE ABSENCE OF CLEAR STATUTORY AUTHORIZATION IT IS INCONSISTENT WITH
ESTABLISHED CANONS OF CRIMINAL LAW TO REST LIABILITY ON AN ACT IN WHICH
THE ACCUSED DID NOT PARTICIPATE AND OF WHICH HE HAD NO PERSONAL
KNOWLEDGE.  BEFORE WE PLACE THE STIGMA OF A CRIMINAL CONVICTION UPON
ANY SUCH CITIZEN THE LEGISLATIVE MANDATE MUST BE CLEAR AND
UNAMBIGUOUS.  ACCORDINGLY THAT WHICH CHIEF JUSTICE MARSHALL HAS CALLED
"THE TENDERNESS OF THE LAW FOR THE RIGHTS OF INDIVIDUALS"  FN1
ENTITLES EACH PERSON, REGARDLESS OF ECONOMIC OR SOCIAL STATUS, TO AN
UNEQUIVOCAL WARNING FROM THE LEGISLATURE AS TO WHETHER HE IS WITHIN THE
CLASS OF PERSONS SUBJECT TO VICARIOUS LIABILITY.  CONGRESS CANNOT BE
DEEMED TO HAVE INTENDED TO PUNISH ANYONE WHO IS NOT "PLAINLY AND
UNMISTAKABLY" WITHIN THE CONFINES OF THE STATUTE.  UNITED STATES V.
LACHER, 134 U.S. 624, 628; UNITED STATES V. GRADWELL, 243 U.S. 476,
485. 

MOREOVER, THE FACT THAT INDIVIDUAL LIABILITY OF CORPORATE OFFICERS
MAY BE CONSISTENT WITH THE POLICY AND PURPOSE OF A PUBLIC HEALTH AND
WELFARE MEASURE DOES NOT AUTHORIZE THIS COURT TO IMPOSE SUCH LIABILITY
WHERE CONGRESS HAS NOT CLEARLY INTENDED OR ACTUALLY DONE SO.  CONGRESS
ALONE HAS THE POWER TO DEFINE A CRIME AND TO SPECIFY THE OFFENDERS. 
UNITED STATES V. WILTBERGER, 5 WHEAT.  76, 95.  IT IS NOT OUR FUNCTION
TO SUPPLY ANY DEFICIENCIES IN THESE RESPECTS, NO MATTER HOW GRAVE THE
CONSEQUENCES.  STATUTORY POLICY AND PURPOSE ARE NOT CONSTITUTIONAL
SUBSTITUTES FOR THE REQUIREMENT THAT THE LEGISLATURE SPECIFY WITH
REASONABLE CERTAINTY THOSE INDIVIDUALS IT DESIRES TO PLACE UNDER THE
INTERDICT OF THE ACT.  UNITED STATES V. HARRIS, 177 U.S. 305; SARLLS V.
UNITED STATES, 152 U.S. 570. 

LOOKING AT THE LANGUAGE ACTUALLY USED IN THIS STATUTE, WE FIND A
COMPLETE ABSENCE OF ANY REFERENCE TO CORPORATE OFFICERS.  THERE IS
MERELY A PROVISION IN SEC. 303(A) TO THE EFFECT THAT "ANY PERSON"
INADVERTENTLY VIOLATING SEC. 301(A) SHALL BE GUILTY OF A MISDEMEANOR. 
PARTNERSHIP, CORPORATION, AND ASSOCIATION."  FN2  THE FACT THAT A
CORPORATE OFFICER IS BOTH A "PERSON" AND AN "INDIVIDUAL" IS NOT
INDICATIVE OF AN INTENT TO PLACE VICARIOUS LIABILITY ON THE OFFICER. 
SUCH WORDS MUST BE READ IN LIGHT OF THEIR STATUTORY ENVIRONMENT N3. 
ONLY IF CONGRESS HAS OTHERWISE SPECIFIED AN INTENT TO PLACE CORPORATE
OFFICERS WITHIN THE AMBIT OF THE ACT CAN THEY BE SAID TO BE EMBRACED
WITHIN THE MEANING OF THE WORDS "PERSON" OR "INDIVIDUAL" AS HERE USED. 

NOR DOES THE CLEAR IMPOSITION OF LIABILITY ON CORPORATIONS REVEAL THE
NECESSARY INTENT TO PLACE CRIMINAL SANCTIONS ON THEIR OFFICERS.  A
CORPORATION IS NOT THE NECESSARY AND INEVITABLE EQUIVALENT OF ITS
OFFICERS FOR ALL PURPOSES.  FN4  IN MANY RESPECTS IT IS DESIRABLE TO
DISTINGUISH THE LATTER FROM THE CORPORATE ENTITY AND TO IMPOSE
LIABILITY ONLY ON THE CORPORATION.  IN THIS RESPECT IT IS SIGNIFICANT
THAT THIS COURT HAS NEVER HELD THE IMPOSITION OF LIABILITY ON A
CORPORATION SUFFICIENT, WITHOUT MORE, TO EXTEND LIABILITY TO ITS
OFFICERS WHO HAVE NO CONSCIOUSNESS OF WRONGDOING.  FN5  INDEED, IN A
CLOSELY ANALOGOUS SITUATION, WE HAVE HELD THAT THE VICARIOUS PERSONAL
LIABILITY OF RECEIVERS IN ACTUAL CHARGE AND CONTROL OF A CORPORATION
COULD NOT BE PREDICATED ON THE STATUTORY LIABILITY OF A "COMPANY," EVEN
WHEN THE POLICY AND PURPOSE OF THE ENACTMENT WERE CONSISTENT WITH
PERSONAL LIABILITY.  UNITED STATES V. HARRIS, SUPRA.  FN6  IT FOLLOWS
THAT EXPRESS STATUTORY PROVISIONS ARE NECESSARY TO SATISFY THE
REQUIREMENT THAT OFFICERS AS INDIVIDUALS BE GIVEN CLEAR AND
UNMISTAKABLE WARNING AS TO THEIR VICARIOUS PERSONAL LIABILITY.  THIS
ACT GIVES NO SUCH WARNING. 

THIS FATAL HIATUS IN THE ACT IS FURTHER EMPHASIZED BY THE ABILITY OF
CONGRESS, DEMONSTRATED ON MANY OCCASIONS, TO APPLY STATUTES IN NO
UNCERTAIN TERMS TO CORPORATE OFFICERS AS DISTINCT FROM CORPORATIONS. 
FN7  THE FAILURE TO MENTION OFFICERS SPECIFICALLY IS THUS SOME
INDICATION OF A DESIRE TO EXEMPT THEM FROM LIABILITY.  IN FACT THE
HISTORY OF FEDERAL FOOD AND DRUG LEGISLATION IS ITSELF ILLUSTRATIVE OF
THIS CAPACITY FOR SPECIFICATION AND LENDS STRONG SUPPORT TO THE
CONCLUSION THAT CONGRESS DID NOT INTEND TO IMPOSE LIABILITY ON
CORPORATE OFFICERS IN THIS PARTICULAR ACT. 

AND PASSED IN THE SENATE, CONTAINED A PROVISION TO THE EFFECT THAT ANY
VIOLATION OF THE ACT BY A CORPORATION SHOULD BE DEEMED TO BE THE ACT OF
THE OFFICER RESPONSIBLE THEREFOR AND THAT SUCH OFFICER MIGHT BE
PUNISHED AS THOUGH IT WERE HIS PERSONAL ACT.  FN8  THIS CLEAR
IMPOSITION OF CRIMINAL RESPONSIBILITY ON CORPORATE OFFICERS, HOWEVER,
WAS NOT CARRIED OVER INTO THE STATUTE AS FINALLY ENACTED.  IN ITS PLACE
APPEARED MERELY THE PROVISION THAT "WHEN CONSTRUING AND ENFORCING THE
PROVISIONS OF THIS ACT, THE ACT, OMISSION, OR FAILURE OF ANY OFFICER,
AGENT, OR OTHER PERSON ACTING FOR OR EMPLOYED BY ANY CORPORATION  ...
WITHIN THE SCOPE OF HIS EMPLOYMENT OR OFFICE, SHALL IN EVERY CASE BE
ALSO DEEMED TO BE THE ACT, OMISSION, OR FAILURE OF SUCH CORPORATION
...  AS WELL AS THAT OF THE PERSON."  FN9  THIS PROVISION HAD THE
EFFECT ONLY OF MAKING CORPORATIONS RESPONSIBLE FOR THE ILLEGAL ACTS OF
THEIR OFFICERS AND PROVED UNNECESSARY IN VIEW OF THE CLARITY OF THE LAW
TO THAT EFFECT.  NEW YORK CENTRAL & H.R.R. CO. V. UNITED STATES, 212
U.S. 481. 

THE FRAMERS OF THE 1938 ACT WERE AWARE THAT THE 1906 ACT WAS
DEFICIENT IN THAT IT FAILED "TO PLACE RESPONSIBILITY PROPERLY UPON
CORPORATE OFFICERS."  FN10  IN ORDER "TO PROVIDE THE ADDITIONAL SCOPE
NECESSARY TO PREVENT THE USE OF THE CORPORATE FORM AS A SHIELD TO
INDIVIDUAL WRONGDOERS," FN11  THESE FRAMERS INSERTED A CLEAR PROVISION
THAT "WHENEVER A CORPORATION OR ASSOCIATION VIOLATES ANY OF THE
PROVISIONS OF THIS ACT, SUCH VIOLATION SHALL ALSO BE DEEMED TO BE A
VIOLATION OF THE INDIVIDUAL DIRECTORS, OFFICERS, OR AGENTS OF SUCH
CORPORATION OR ASSOCIATION WHO AUTHORIZED, ORDERED, OR DID ANY OF THE
ACTS CONSTITUTING, IN WHOLE OR IN PART, SUCH VIOLATION."  FN12  THIS
PARAGRAPH, HOWEVER, WAS DELETED FROM THE FINAL VERSION OF THE ACT. 

WE CANNOT PRESUME THAT THIS OMISSION WAS INADVERTENT ON THE PART OF
CONGRESS.  UNITED STATES V. HARRIS, SUPRA AT 309.  EVEN IF IT WERE,
COURTS HAVE NO POWER TO REMEDY SO SERIOUS A DEFECT, NO MATTER HOW
PROBABLE IT OTHERWISE MAY APPEAR THAT CONGRESS INTENDED TO INCLUDE
OFFICERS; "PROBABILITY IS NOT A GUIDE WHICH A COURT, IN CONSTRUING A
PENAL STATUTE, CAN SAFELY TAKE."  UNITED STATES V. WILTBERGER, SUPRA AT
105.  BUT THE FRAMERS OF THE 1938 ACT HAD AN INTELLIGENT COMPREHENSION
OF THE INADEQUACIES OF THE 1906 ACT AND OF THE UNSETTLED STATE OF THE
LAW.  THEY RECOGNIZED THE NECESSITY OF INSERTING CLEAR AND UNMISTAKABLE
LANGUAGE IN ORDER TO IMPOSE LIABILITY ON CORPORATE OFFICERS.  IT IS
THUS UNREASONABLE TO ASSUME THAT THE OMISSION OF SUCH LANGUAGE WAS DUE
TO A BELIEF THAT THE ACT AS IT NOW STANDS WAS SUFFICIENT TO IMPOSE
LIABILITY ON CORPORATE OFFICERS.  SUCH DELIBERATE DELETION IS
CONSISTENT ONLY WITH AN INTENT TO ALLOW SUCH OFFICERS TO REMAIN FREE
FROM CRIMINAL LIABILITY.  THUS TO APPLY THE SANCTIONS OF THIS ACT TO
THE RESPONDENT WOULD BE CONTRARY TO THE INTENT OF CONGRESS AS EXPRESSED
IN THE STATUTORY LANGUAGE AND IN THE LEGISLATIVE HISTORY. 

THE DANGERS INHERENT IN ANY ATTEMPT TO CREATE LIABILITY WITHOUT
EXPRESS CONGRESSIONAL INTENTION OR AUTHORIZATION ARE ILLUSTRATED BY
THIS CASE.  WITHOUT ANY LEGISLATIVE GUIDES, WE ARE CONFRONTED WITH THE
PROBLEM OF DETERMINING PRECISELY WHICH OFFICERS, EMPLOYEES AND AGENTS
OF A CORPORATION ARE TO BE SUBJECT TO THIS ACT BY OUR FIAT.  TO ERECT
STANDARDS OF RESPONSIBILITY IS A DIFFICULT LEGISLATIVE TASK AND THE
OPINION OF THIS COURT ADMITS THAT IT IS "TOO TREACHEROUS" AND A
"MISCHIEVOUS FUTILITY" FOR US TO ENGAGE IN SUCH PURSUITS.  BUT THE ONLY
ALTERNATIVE IS A BLIND RESORT TO "THE GOOD SENSE OF PROSECUTORS, THE
WISE GUIDANCE OF TRIAL JUDGES, AND THE ULTIMATE JUDGMENT OF JURIES." 
YET THAT SITUATION IS PRECISELY WHAT OUR CONSTITUTIONAL SYSTEM SOUGHT
TO AVOID.  RELIANCE ON THE LEGISLATURE TO DEFINE CRIMES AND CRIMINALS
DISTINGUISHES OUR FORM OF JURISPRUDENCE FROM CERTAIN LESS DESIRABLE
ONES.  THE LEGISLATIVE POWER TO RESTRAIN THE LIBERTY AND TO IMPERIL THE
GOOD REPUTATION OF CITIZENS MUST NOT REST UPON THE VARIABLE ATTITUDES
AND OPINIONS OF THOSE CHARGED WITH THE DUTIES OF INTERPRETING AND
ENFORCING THE MANDATES OF THE LAW.  I THEREFORE CANNOT APPROVE THE
DECISION OF THE COURT IN THIS CASE. 

FN1  UNITED STATES V. WILTBERGER, 5 WHEAT.  76, 95. 

FN2  THE NORMAL AND NECESSARY MEANING OF SUCH A DEFINITION OF
"PERSON" IS TO DISTINGUISH BETWEEN INDIVIDUAL ENTERPRISES AND THOSE
ENTERPRISES THAT ARE INCORPORATED OR OPERATED AS A PARTNERSHIP OR
ASSOCIATION, IN ORDER TO SUBJECT THEM ALL TO THE ACT.  THIS PHRASE
CANNOT BE CONSIDERED AS AN ATTEMPT TO DISTINGUISH BETWEEN INDIVIDUAL
OFFICERS OF A CORPORATION AND THE CORPORATE ENTITY.  LEE, "CORPORATE
CRIMINAL LIABILITY," 28 COL. L. REV. 1, 181, 190. 

FN3  COMPARE UNITED STATES V. COOPER CORP., 312 U.S. 600, 606, AND
DAVIS V. PRINGLE, 268 U.S. 315, 318, HOLDING THAT THE CONTEXT AND
LEGISLATIVE HISTORY OF THE PARTICULAR STATUTES THERE INVOLVED INDICATED
THAT THE WORDS "ANY PERSON" DID NOT INCLUDE THE UNITED STATES.  BUT IN
GEORGIA V. EVANS, 316 U.S. 159, AND OHIO V. HELVERING, 292 U.S. 360,
THESE CONSIDERATIONS LED TO THE CONCLUSION THAT "ANY PERSON" DID
INCLUDE A STATE.  SEE ALSO 40 STAT. 1143, WHICH SPECIFICALLY INCLUDES
OFFICERS WITHIN THE MEANING OF "ANY PERSON" AS USED IN THE REVENUE ACT
OF 1918. 

FN4  IN PARK BANK V. REMSEN, 158 U.S. 337, 344, THIS COURT SAID, "IT
IS THE CORPORATION WHICH IS GIVEN THE POWERS AND PRIVILEGES AND MADE
SUBJECT TO THE LIABILITIES.  DOES THIS CARRY WITH IT AN IMPOSITION OF
LIABILITY UPON THE TRUSTEE OR OTHER OFFICER OF THE CORPORATION?  THE
OFFICER IS NOT THE CORPORATION; HIS LIABILITY IS PERSONAL, AND NOT THAT
OF THE CORPORATION, NOR CAN IT BE COUNTED AMONG THE POWERS AND
PRIVILEGES OF THE CORPORATION." 

FN5  FOR AN ANALYSIS OF THE CONFUSION ON THIS MATTER IN THE STATE AND
LOWER FEDERAL COURTS, SEE LEE, "CORPORATE CRIMINAL LIABILITY," 28 COL.
L. REV. 1, 181.    FN6  IN THAT CASE WE HAD BEFORE US REV. STAT. SECS.
4386-4389, WHICH PENALIZED "ANY COMPANY, OWNER OR CUSTODIAN OF SUCH
ANIMALS" WHO FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS AS TO
LIVESTOCK TRANSPORTATION.  A RAILROAD COMPANY VIOLATED THE STATUTE AND
THE GOVERNMENT SOUGHT TO IMPOSE LIABILITY ON THE RECEIVERS WHO WERE IN
ACTUAL CHARGE OF THE COMPANY.  IT WAS ARGUED THAT THE WORD "COMPANY"
EMBRACED THE NATURAL PERSONS ACTING ON BEHALF OF THE COMPANY AND THAT
TO HOLD SUCH OFFICERS AND RECEIVERS LIABLE WAS WITHIN THE POLICY AND
PURPOSE OF SO HUMANE A STATUTE.  WE REJECTED THIS CONTENTION IN
LANGUAGE PECULIARLY APPROPRIATE TO THIS CASE (177 U.S. AT 309): 

"IT MUST BE ADMITTED THAT, IN ORDER TO HOLD THE RECEIVERS, THEY MUST
BE REGARDED AS INCLUDED IN THE WORD 'COMPANY.'  ONLY BY A STRAINED AND
ARTIFICIAL CONSTRUCTION, BASED CHIEFLY UPON A CONSIDERATION OF THE
MISCHIEF WHICH THE LEGISLATURE SOUGHT TO REMEDY, CAN RECEIVERS BE
BROUGHT WITHIN THE TERMS OF THE LAW.  BUT CAN SUCH A KIND OF
CONSTRUCTION BE RESORTED TO IN ENFORCING A PENAL STATUTE?  GIVING ALL
PROPER FORCE TO THE CONTENTION OF THE COUNSEL OF THE GOVERNMENT, THAT
THERE HAS BEEN SOME RELAXATION ON THE PART OF THE COURTS IN APPLYING
THE RULE OF STRICT CONSTRUCTION TO SUCH STATUTES, IT STILL REMAINS THAT
THE INTENTION OF A PENAL STATUTE MUST BE FOUND IN THE LANGUAGE ACTUALLY
USED, INTERPRETED ACCORDING TO ITS FAIR AND OBVIOUS MEANING.  IT IS NOT
PERMITTED TO COURTS, IN THIS CLASS OF CASES, TO ATTRIBUTE INADVERTENCE
OR OVERSIGHT TO THE LEGISLATURE WHEN ENUMERATING THE CLASSES OF PERSONS
WHO ARE SUBJECTED TO A PENAL ENACTMENT, NOR TO DEPART FROM THE SETTLED
MEANING OF WORDS OR PHRASES IN ORDER TO BRING PERSONS NOT NAMED OR
DISTINCTLY DESCRIBED WITHIN THE SUPPOSED PURPOSE OF THE STATUTE." 

FN7  "WHENEVER A CORPORATION SHALL VIOLATE ANY OF THE PENAL
PROVISIONS OF THE ANTITRUST LAWS, SUCH VIOLATION SHALL BE DEEMED TO BE
ALSO THAT OF THE INDIVIDUAL DIRECTORS, OFFICERS, OR AGENTS OF SUCH
CORPORATION WHO SHALL HAVE AUTHORIZED, ORDERED, OR DONE ANY OF THE ACTS
CONSTITUTING IN WHOLE OR IN PART SUCH VIOLATION."  15 U.S.C. SEC. 24. 

"THE COURTS OF BANKRUPTCY  ...  ARE HEREBY INVESTED  ...  WITH SUCH
JURISDICTION AT LAW AND IN EQUITY AS WILL ENABLE THEM TO  ...  (4)
ARRAIGN, TRY, AND PUNISH BANKRUPTS, OFFICERS, AND OTHER PERSONS, AND
THE AGENTS, OFFICERS, MEMBERS OF THE BOARD OF DIRECTORS OR TRUSTEES, OR
OTHER SIMILAR CONTROLLING BODIES, OF CORPORATIONS FOR VIOLATIONS OF
THIS ACT."  30 STAT. 545. 

"ANY SUCH COMMON CARRIER, OR ANY OFFICER OR AGENT THEREOF, REQUIRING
OR PERMITTING ANY EMPLOYEE TO GO, BE, OR REMAIN ON DUTY IN VIOLATION OF
THE NEXT PRECEDING SECTION OF THIS CHAPTER SHALL BE LIABLE TO A PENALTY
...  "  45 U.S.C. SEC. 63. 

"A MORTGAGOR WHO, WITH INTENT TO DEFRAUD, VIOLATES ANY PROVISION OF
SUBSECTION F, SECTION 924, AND IF THE MORTGAGOR IS A CORPORATION OR
ASSOCIATION, THE PRESIDENT OR OTHER PRINCIPAL EXECUTIVE OFFICER OF THE
CORPORATION OR ASSOCIATION, SHALL UPON CONVICTION THEREOF BE HELD
GUILTY OF A MISDEMEANOR  ...  "  46 U.S.C. SEC. 941(B). 

FN8  S. 88, 59TH CONG., 1ST SESS.  SENATOR HEYBURN, ONE OF THE
SPONSORS OF S. 88, STATED THAT THIS WAS "A NEW FEATURE IN BILLS OF THIS
KIND.  IT WAS INTENDED TO OBVIATE THE POSSIBILITY OF ESCAPE BY THE
OFFICERS OF A CORPORATION UNDER A PLEA, WHICH HAS BEEN MORE THAN ONCE
MADE, THAT THEY DID NOT KNOW THAT THIS WAS BEING DONE ON THE CREDIT OF
OR ON THE RESPONSIBILITY OF THE CORPORATION."  40 CONG. REC. 894. 

FN9  34 STAT. 772, 21 U.S.C. SEC. 4. 

FN10  SENATE REPORT NO. 493, 73D CONG., 2D SESS., P. 21. 

FN11  IBID., P. 22.  THIS REPORT ALSO STATED THAT "IT IS NOT,
HOWEVER, THE PURPOSE OF THIS PARAGRAPH TO SUBJECT TO LIABILITY THOSE
DIRECTORS, OFFICERS, AND EMPLOYEES, WHO MERELY AUTHORIZE THEIR
SUBORDINATES TO PERFORM LAWFUL DUTIES AND SUCH SUBORDINATES, ON THEIR
OWN INITIATIVE, PERFORM THOSE DUTIES IN A MANNER WHICH VIOLATES THE
PROVISIONS OF THE LAW.  HOWEVER, IF A DIRECTOR OR OFFICER PERSONALLY
ORDERS HIS SUBORDINATE TO DO AN ACT IN VIOLATION OF THE LAW, THERE IS
NO REASON WHY HE SHOULD BE SHIELDED FROM PERSONAL RESPONSIBILITY MERELY
BECAUSE THE ACT WAS DONE BY ANOTHER AND ON BEHALF OF A CORPORATION." 

FN12  THIS PROVISION APPEARS IN SEVERAL OF THE EARLY VERSIONS OF THE
ACT INTRODUCED IN CONGRESS.  S. 1944, 73D CONG., 1ST SESS., SEC. 18(B);
S. 2000, 73D CONG., 2D SESS., SEC. 18(B); S. 2800, 73D CONG., 2D SESS.,
SEC. 18(B); S. 5, 74TH CONG., 1ST SESS., SEC. 709(B); S. 5, 74TH CONG.,
2D SESS., SEC. 707(B), AS REPORTED TO THE HOUSE, WHICH SUBSTITUTED THE
WORD "PERSONALLY" FOR THE WORD "AUTHORIZED" IN THE LAST CLAUSE OF THE
PARAGRAPH QUOTED ABOVE.  A VARIATION OF THIS PROVISION APPEARED IN S.
5, 75TH CONG., 1ST SESS., SEC. 2(F), AND MADE A MARKED DISTINCTION
BETWEEN THE USE OF THE WORD "PERSON" AND THE WORDS "DIRECTOR, OFFICER,
EMPLOYEE, OR AGENT ACTING FOR OR EMPLOYED BY ANY PERSON."  ALL OF THESE
BILLS ALSO CONTAINED THE PRESENT DEFINITION OF "PERSON" AS INCLUDING
"INDIVIDUAL, PARTNERSHIP, CORPORATION, AND ASSOCIATION." 

MR. JUSTICE ROBERTS, MR. JUSTICE REED AND MR. JUSTICE RUTLEDGE JOIN
IN THIS DISSENT. 
..END :





CAFETERIA UNION V. ANGELOS, 320 U.S. 293 


ARGUED NOVEMBER 8, 1943.  - DECIDED NOVEMBER 22, 1943.  - 289 N.Y. 498,
507, 46 N.E.2D 903, 908, REVERSED. 


1.  IN THE CIRCUMSTANCES OF THIS CASE, THE STATE COURT'S BROAD
INJUNCTION AGAINST PICKETING OF PLACES OF BUSINESS BY MEMBERS OF A
LABOR ORGANIZATION INFRINGED THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF
SPEECH.  P. 295. 

2.  A STATE CAN NOT, BY DRAWING THE CIRCLE OF ECONOMIC COMPETITION
BETWEEN EMPLOYERS AND WORKERS SO SMALL AS TO CONTAIN ONLY AN EMPLOYER
AND THOSE DIRECTLY EMPLOYED BY HIM, EXCLUDE WORKMEN IN A PARTICULAR
INDUSTRY FROM PRESENTING THEIR CASE TO THE PUBLIC IN A PEACEFUL WAY. 
P. 296. 

3.  THE RIGHT TO PEACEFUL PICKETING CAN NOT BE TAKEN AWAY MERELY
BECAUSE IN THE COURSE OF THE PICKETING THERE MAY HAVE BEEN ISOLATED
INCIDENTS OF ABUSE FALLING FAR SHORT OF VIOLENCE.  DRIVERS' UNION V.
MEADOWMOOR CO., 312 U.S. 287, DISTINGUISHED.  P. 296. 

CAFETERIA EMPLOYEES UNION, LOCAL 302, ET AL. V. ANGELOS ET AL. 

NO. 36.  CERTIORARI TO THE COURT OF APPEALS OF NEW YORK* . 

*TOGETHER WITH NO. 37, CAFETERIA EMPLOYEES UNION, LOCAL 302, ET AL.
V. TSAKIRES ET AL., ALSO ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
OF NEW YORK. 

CERTIORARI, 319 U.S. 778, TO REVIEW AFFIRMANCES OF DECREES GRANTING
INJUNCTIONS AGAINST PICKETING.  SEE ALSO 264 APP. DIV. 708, 34 N.Y.S.2D
408. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THESE TWO CASES HERE TO DETERMINE WHETHER INJUNCTIONS
SANCTIONED BY THE NEW YORK COURT OF APPEALS EXCEEDED THE BOUNDS WITHIN
WHICH THE FOURTEENTH AMENDMENT CONFINES STATE POWER.  319 U.S. 778. 
THEY WERE ARGUED TOGETHER AND, BEING SUBSTANTIALLY ALIKE, CAN BE
DISPOSED OF IN A SINGLE OPINION. 

WE START WITH THE COURT OF APPEALS' VIEW OF THE FACTS.  IN NO. 36,
PETITIONERS, A LABOR UNION AND ITS PRESIDENT, PICKETED A CAFETERIA IN
AN ATTEMPT TO ORGANIZE IT.  THE CAFETERIA WAS OWNED BY THE RESPONDENTS,
WHO THEMSELVES CONDUCTED THE BUSINESS WITHOUT THE AID OF ANY
EMPLOYEES.  PICKETING WAS CARRIED ON BY A PARADE OF ONE PERSON AT A
TIME IN FRONT OF THE PREMISES.  THE SUCCESSIVE PICKETS WERE "AT ALL
TIMES ORDERLY AND PEACEFUL."  THEY CARRIED SIGNS WHICH TENDED TO GIVE
THE IMPRESSION THAT THE RESPONDENTS WERE "UNFAIR" TO ORGANIZED LABOR
AND THAT THE PICKETS HAD BEEN PREVIOUSLY EMPLOYED IN THE CAFETERIA. 
THESE REPRESENTATIONS WERE TREATED BY THE COURT BELOW AS KNOWINGLY
FALSE IN THAT THERE HAD BEEN NO EMPLOYEES IN THE CAFETERIA AND THE
RESPONDENTS WERE "NOT UNFAIR TO ORGANIZED LABOR."  IT ALSO FOUND THAT
PICKETS TOLD PROSPECTIVE CUSTOMERS THAT THE CAFETERIA SERVED BAD FOOD,
AND THAT BY "PATRONIZING" IT "THEY WERE AIDING THE CAUSE OF FASCISM." 

THE CIRCUMSTANCES IN NO. 37 DIFFER FROM THOSE IN NO. 36 ONLY IN THAT
PICKETS WERE FOUND TO HAVE TOLD PROSPECTIVE CUSTOMERS THAT A STRIKE WAS
IN PROGRESS AND TO HAVE "INSULTED CUSTOMERS  ...  WHO WERE ABOUT TO
ENTER" THE CAFETERIA.  UPON A FINDING THAT RESPONDENTS REQUIRED
EQUITABLE RELIEF TO AVOID IRREPARABLE DAMAGES AND THAT THERE WAS NO
"LABOR DISPUTE" UNDER THE NEW YORK ANALOGUE OF THE NORRIS-LA GUARDIA
ACT (SEC. 876-A OF THE NEW YORK CIVIL PRACTICE ACT), THE TRIAL COURT
ENJOINED PETITIONERS IN BROAD TERMS FROM PICKETING AT OR NEAR
RESPONDENTS' PLACES OF BUSINESS.  THE DECREES WERE AFFIRMED BY THE
APPELLATE DIVISION (264 APP. DIV. 708, 34 N.Y.S.2D 408), AND WERE
FINALLY SUSTAINED BY THE COURT OF APPEALS, ITS CHIEF JUDGE AND TWO
JUDGES DISSENTING.  289 N.Y. 498, 507, 46 N.E.2D 903. 

IN SENN V. TILE LAYERS UNION, 301 U.S. 468, THIS COURT RULED THAT
MEMBERS OF A UNION MIGHT, "WITHOUT SPECIAL STATUTORY AUTHORIZATION BY A
STATE, MAKE KNOWN THE FACTS OF A LABOR DISPUTE, FOR FREEDOM OF SPEECH
IS GUARANTEED BY THE FEDERAL CONSTITUTION."  301 U.S. AT 478.  LATER
CASES APPLIED THE SENN DOCTRINE BY ENFORCING THE RIGHT OF WORKERS TO
STATE THEIR CASE AND TO APPEAL FOR PUBLIC SUPPORT IN AN ORDERLY AND
PEACEFUL MANNER REGARDLESS OF THE AREA OF IMMUNITY AS DEFINED BY STATE
POLICY.  A.F. OF L. V. SWING, 312 U.S. 321; BAKERY DRIVERS LOCAL V.
WOHL, 315 U.S. 769.  TO BE SURE, THE SENN CASE RELATED TO THE
EMPLOYMENT OF "PEACEFUL PICKETING AND TRUTHFUL PUBLICITY."  301 U.S. AT
482.  THAT THE PICKETING UNDER REVIEW WAS PEACEFUL IS NOT QUESTIONED. 
AND TO USE LOOSE LANGUAGE OR UNDEFINED SLOGANS THAT ARE PART OF THE
CONVENTIONAL GIVE-AND-TAKE IN OUR ECONOMIC AND POLITICAL CONTROVERSIES
LIKE "UNFAIR" OR "FASCIST" - IS NOT TO FALSIFY FACTS.  IN A SETTING
LIKE THE PRESENT, CONTINUING REPRESENTATIONS UNQUESTIONABLY FALSE AND
ACTS OF COERCION GOING BEYOND THE MERE INFLUENCE EXERTED BY THE FACT OF
PICKETING, ARE OF COURSE NOT CONSTITUTIONAL PREROGATIVES.  BUT HERE WE
HAVE NO ATTEMPT BY THE STATE THROUGH ITS COURTS TO RESTRICT CONDUCT
JUSTIFIABLY FOUND TO BE AN ABUSIVE EXERCISE OF THE RIGHT TO PICKET.  WE
HAVE BEFORE US A PROHIBITION AS UNRESTRICTED AS THAT WHICH WE FOUND TO
TRANSGRESS STATE POWER IN A.F. OF L. V. SWING, SUPRA.  THE COURT HERE,
AS IN THE SWING CASE, WAS PROBABLY LED INTO ERROR BY ASSUMING THAT IF A
CONTROVERSY DOES NOT COME WITHIN THE SCOPE OF STATE LEGISLATION
LIMITING THE ISSUE OF INJUNCTIONS, EFFORTS TO MAKE KNOWN ONE SIDE OF AN
INDUSTRIAL CONTROVERSY BY PEACEFUL MEANS MAY BE ENJOINED.  BUT, AS WE
HAVE HERETOFORE DECIDED, A STATE CANNOT EXCLUDE WORKING MEN IN A
PARTICULAR INDUSTRY FROM PUTTING THEIR CASE TO THE PUBLIC IN A PEACEFUL
WAY "BY DRAWING THE CIRCLE OF ECONOMIC COMPETITION BETWEEN EMPLOYERS
AND WORKERS SO SMALL AS TO CONTAIN ONLY AN EMPLOYER AND THOSE DIRECTLY
EMPLOYED BY HIM."  A.F. OF L. V. SWING, 312 U.S. AT 326. 

THE PRESENT SITUATION IS THUS WHOLLY OUTSIDE THE SCOPE OF THE
DECISION IN MILK WAGON DRIVERS UNION V. MEADOWMOOR CO., 312 U.S. 287. 
THERE WE SUSTAINED THE EQUITY POWER OF A STATE BECAUSE THE RECORD
DISCLOSED ABUSES DEEMED NOT EPISODIC AND ISOLATED BUT OF THE VERY
TEXTURE AND PROCESS OF THE ENJOINED PICKETING.  BUT WE ALSO MADE CLEAR
"THAT THE POWER TO DENY WHAT OTHERWISE WOULD BE LAWFUL PICKETING
DERIVES FROM THE POWER OF THE STATES TO PREVENT FUTURE COERCION.  RIGHT
TO FREE SPEECH IN THE FUTURE CANNOT BE FORFEITED BECAUSE OF DISSOCIATED
ACTS OF PAST VIOLENCE."  312 U.S. AT 296.  STILL LESS CAN THE RIGHT TO
PICKET ITSELF BE TAKEN AWAY MERELY BECAUSE THERE MAY HAVE BEEN ISOLATED
INCIDENTS OF ABUSE FALLING FAR SHORT OF VIOLENCE OCCURRING IN THE
COURSE OF THAT PICKETING. 

THE JUDGMENTS MUST BE REVERSED AND THE CAUSES RETURNED TO THE STATE
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 
..END :























SWITCHMEN'S UNION V. BOARD, 320 U.S. 297 


NO. 48.  ARGUED OCTOBER 15, 1943.  - DECIDED NOVEMBER 22, 1943.  - 135
F.2D 785, REVERSED. 


A DISPUTE HAVING ARISEN BETWEEN TWO LABOR ORGANIZATIONS AS TO
REPRESENTATION OF EMPLOYEES OF A CARRIER FOR COLLECTIVE BARGAINING, THE
SERVICES OF THE NATIONAL MEDIATION BOARD WERE INVOKED PURSUANT TO SEC.
2, NINTH OF THE RAILWAY LABOR ACT.  ONE OF THE ORGANIZATIONS SOUGHT TO
BE THE REPRESENTATIVE OF ALL YARDMEN; THE OTHER, TO BE THE
REPRESENTATIVE OF CERTAIN SMALLER GROUPS.  THE BOARD DIRECTED AN
ELECTION, DESIGNATING ALL YARDMEN AS PARTICIPANTS.  THE FIRST
ORGANIZATION WAS CHOSEN REPRESENTATIVE, AND THE BOARD CERTIFIED THE
RESULT TO THE CARRIER.  THE SECOND ORGANIZATION AND SOME OF ITS MEMBERS
BROUGHT SUIT IN THE FEDERAL DISTRICT COURT, CHALLENGING THE BOARD'S
DETERMINATION AS TO PARTICIPANTS IN THE ELECTION AND SEEKING
CANCELLATION OF THE CERTIFICATE.  HELD THAT THE DISTRICT COURT WAS
WITHOUT JURISDICTION TO REVIEW THE ACTION OF THE BOARD IN ISSUING THE
CERTIFICATE.  P. 300. 

1.  THE LANGUAGE OF THE RAILWAY LABOR ACT AND THE LEGISLATIVE HISTORY
OF SEC. 2, NINTH THEREOF SUPPORT THE CONCLUSION THAT THE INTENT OF
CONGRESS WAS THAT THE BOARD'S CERTIFICATION OF REPRESENTATIVES FOR
COLLECTIVE BARGAINING SHOULD NOT BE JUDICIALLY REVIEWABLE.  P. 306. 

(A)  CONSTITUTIONAL QUESTIONS ASIDE, IT IS FOR CONGRESS TO DETERMINE
HOW THE RIGHTS WHICH IT CREATES SHALL BE ENFORCED.  P. 301. 

(B)  WHERE CONGRESS HAS NOT EXPRESSLY AUTHORIZED JUDICIAL REVIEW, THE
TYPE OF PROBLEM INVOLVED AND THE HISTORY OF THE STATUTE IN QUESTION ARE
RELEVANT IN DETERMINING WHETHER JUDICIAL REVIEW MAY NONETHELESS BE
SUPPLIED.  P. 301. 

2.  THE BROAD GRANT TO THE FEDERAL DISTRICT COURTS, BY JUD.  CODE
SEC. 24(8), OF ORIGINAL JURISDICTION OF ALL "SUITS AND PROCEEDINGS
ARISING UNDER ANY LAW REGULATING COMMERCE," CAN NOT SUSTAIN
JURISDICTION IN THIS CASE.  P. 300. 

3.  THAT THE BOARD'S CERTIFICATION OF REPRESENTATIVES OF EMPLOYEES
FOR COLLECTIVE BARGAINING IS CONCLUSIVE DOES NOT OF ITSELF MAKE SUCH
CERTIFICATION JUDICIALLY REVIEWABLE.  P. 303. 

4.  SHIELDS V. UTAH IDAHO CENTRAL R. CO., 305 U.S. 177,
DISTINGUISHED.  P. 306. 

SWITCHMEN'S UNION OF NORTH AMERICA ET AL. V. NATIONAL MEDIATION BOARD
ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 319 U.S. 736, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT IN A SUIT CHALLENGING THE ACTION OF THE
NATIONAL MEDIATION BOARD IN CERTIFYING REPRESENTATIVES FOR COLLECTIVE
BARGAINING. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION BY THE PETITIONERS, THE SWITCHMEN'S UNION OF NORTH
AMERICA AND SOME OF ITS MEMBERS AGAINST THE NATIONAL MEDIATION BOARD,
ITS MEMBERS, THE BROTHERHOOD OF RAILROAD TRAINMEN, AND THE NEW YORK
CENTRAL RAILROAD COMPANY AND THE MICHIGAN CENTRAL RAILROAD COMPANY. 
THE INDIVIDUAL PLAINTIFFS ARE MEMBERS AND OFFICIALS OF THE SWITCHMEN'S
UNION AND EMPLOYEES OF THE RESPONDENT CARRIERS. 

PETITIONERS WERE PLAINTIFFS IN THE DISTRICT COURT.  A CERTIFICATION
OF REPRESENTATIVES FOR COLLECTIVE BARGAINING UNDER SEC. 2, NINTH OF THE
RAILWAY LABOR ACT (44 STAT. 577, 48 STAT. 1185) WAS MADE BY THE BOARD
TO THE CARRIERS.  FN1  THIS CERTIFICATION FOLLOWED THE INVOCATION OF
THE SERVICES OF THE BOARD TO INVESTIGATE A DISPUTE AMONG THE YARDMEN AS
TO THEIR REPRESENTATIVE.  THE BROTHERHOOD SOUGHT TO BE THE
REPRESENTATIVE FOR ALL THE YARDMEN OF THE RAIL LINES OPERATED BY THE
NEW YORK CENTRAL SYSTEM.  THE SWITCHMEN CONTENDED THAT YARDMEN OF
CERTAIN DESIGNATED PARTS OF THE SYSTEM SHOULD BE PERMITTED TO VOTE FOR
SEPARATE REPRESENTATIVES INSTEAD OF BEING COMPELLED TO TAKE PART IN A
SYSTEMWIDE ELECTION. 

THE BOARD DESIGNATED ALL YARDMEN OF THE CARRIERS AS PARTICIPANTS IN
THE ELECTION.  THE ELECTION WAS HELD AND THE BROTHERHOOD WAS CHOSEN AS
THE REPRESENTATIVE.  UPON THE CERTIFICATION OF THE RESULT TO THE
CARRIERS, PETITIONERS SOUGHT TO HAVE THE DETERMINATION BY THE BOARD OF
THE PARTICIPANTS AND THE CERTIFICATION OF THE REPRESENTATIVE
CANCELLED.  THIS SUIT FOR CANCELLATION WAS BROUGHT IN THE DISTRICT
COURT.  THAT COURT UPHELD THE DECISION OF THE BOARD TO THE EFFECT THAT
ALL YARDMEN IN THE SERVICE OF A CARRIER SHOULD SELECT A SINGLE
REPRESENTATIVE FOR COLLECTIVE BARGAINING.  THE CIRCUIT COURT OF APPEALS
AFFIRMED BY A DIVIDED VOTE.  135 F.2D 785.  THE CASE IS HERE ON A
PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
IMPORTANCE OF THE PROBLEMS WHICH ARE RAISED. 

WE DO NOT REACH THE MERITS OF THE CONTROVERSY.  FOR WE ARE OF THE
OPINION THAT THE DISTRICT COURT DID NOT HAVE THE POWER TO REVIEW THE
ACTION OF THE NATIONAL MEDIATION BOARD IN ISSUING THE CERTIFICATE. 

SEC. 24(8) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 41(8), GIVES THE
FEDERAL DISTRICT COURTS "ORIGINAL JURISDICTION" OF ALL "SUITS AND
PROCEEDINGS ARISING UNDER ANY LAW REGULATING COMMERCE."  WE MAY ASSUME
THAT IF ANY JUDICIAL REVIEW OF THE CERTIFICATE OF THE BOARD COULD BE
HAD, THE DISTRICT COURT WOULD HAVE JURISDICTION BY REASON OF THAT
PROVISION OF THE JUDICIAL CODE.  SEE LOUISVILLE & NASHVILLE R. CO. V.
RICE, 247 U.S. 201; MULFORD V. SMITH, 307 U.S. 38; PEYTON V. RAILWAY
EXPRESS AGENCY, 316 U.S. 350.  BUT WE DO NOT THINK THAT THAT BROAD
GRANT OF GENERAL JURISDICTION MAY BE INVOKED IN FACE OF THE SPECIAL
CIRCUMSTANCES WHICH OBTAIN HERE. 

IF THE ABSENCE OF JURISDICTION OF THE FEDERAL COURTS MEANT A
SACRIFICE OR OBLITERATION OF A RIGHT WHICH CONGRESS HAD CREATED, THE
INFERENCE WOULD BE STRONG THAT CONGRESS INTENDED THE STATUTORY
PROVISIONS GOVERNING THE GENERAL JURISDICTION OF THOSE COURTS TO
CONTROL.  THAT WAS THE PURPORT OF THE DECISIONS OF THIS COURT IN TEXAS
& NEW ORLEANS R. CO. V. BROTHERHOOD OF CLERKS, 281 U.S. 548, AND
VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515.  IN THOSE CASES
IT WAS APPARENT THAT BUT FOR THE GENERAL JURISDICTION OF THE FEDERAL
COURTS THERE WOULD BE NO REMEDY TO ENFORCE THE STATUTORY COMMANDS WHICH
CONGRESS HAD WRITTEN INTO THE RAILWAY LABOR ACT.  THE RESULT WOULD HAVE
BEEN THAT THE "RIGHT" OF COLLECTIVE BARGAINING WAS UNSUPPORTED BY ANY
LEGAL SANCTION.  THAT WOULD HAVE ROBBED THE ACT OF ITS VITALITY AND
THWARTED ITS PURPOSE.  SUCH CONSIDERATIONS ARE NOT APPLICABLE HERE. 
THE ACT IN SEC. 2, FOURTH WRITES INTO LAW THE "RIGHT" OF THE "MAJORITY
OF ANY CRAFT OR CLASS OF EMPLOYEES" TO "DETERMINE WHO SHALL BE THE
REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES OF THIS ACT." 
THAT "RIGHT" IS PROTECTED BY SEC. 2, NINTH WHICH GIVES THE MEDIATION
BOARD THE POWER TO RESOLVE CONTROVERSIES CONCERNING IT AND AS AN
INCIDENT THERETO TO DETERMINE WHAT IS THE APPROPRIATE CRAFT OR CLASS IN
WHICH THE ELECTION SHOULD BE HELD.  SEE BROTHERHOOD OF RAILROAD
TRAINMEN V. NATIONAL MEDIATION BOARD, 88 F.2D 757; BROTHERHOOD OF
RAILROAD TRAINMEN V. NATIONAL MEDIATION BOARD, 135 F.2D 780.  A REVIEW
BY THE FEDERAL DISTRICT COURTS OF THE BOARD'S DETERMINATION IS NOT
NECESSARY TO PRESERVE OR PROTECT THAT "RIGHT."  CONGRESS FOR REASONS OF
ITS OWN DECIDED UPON THE METHOD FOR THE PROTECTION OF THE "RIGHT" WHICH
IT CREATED.  IT SELECTED THE PRECISE MACHINERY AND FASHIONED THE TOOL
WHICH IT DEEMED SUITED TO THAT END.  WHETHER THE IMPOSITION OF JUDICIAL
REVIEW ON TOP OF THE MEDIATION BOARD'S ADMINISTRATIVE DETERMINATION
WOULD STRENGTHEN THAT PROTECTION IS A CONSIDERABLE QUESTION N2.  ALL
CONSTITUTIONAL QUESTIONS ASIDE, IT IS FOR CONGRESS TO DETERMINE HOW THE
RIGHTS WHICH IT CREATES SHALL BE ENFORCED.  TUTUN V. UNITED STATES, 270
U.S. 568, 576-577.  IN SUCH A CASE THE SPECIFICATION OF ONE REMEDY
NORMALLY EXCLUDES ANOTHER.  SEE ARNSON V. MURPHY, 109 U.S. 238; WILDER
MFG. CO. V. CORN PRODUCTS REFINING CO., 236 U.S. 165, 174-175; UNITED
STATES V. BABCOCK, 250 U.S. 328, 331; SUNSHINE ANTHRACITE COAL CO. V.
ADKINS, 310 U.S. 381, 404. 

GENERALIZATIONS AS TO WHEN JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
MAY OR MAY NOT BE OBTAINED ARE OF COURSE HAZARDOUS.  WHERE CONGRESS HAS
NOT EXPRESSLY AUTHORIZED JUDICIAL REVIEW, THE TYPE OF PROBLEM INVOLVED
AND THE HISTORY OF THE STATUTE IN QUESTION BECOME HIGHLY RELEVANT IN
DETERMINING WHETHER JUDICIAL REVIEW MAY BE NONETHELESS SUPPLIED.  SEE
UNITED STATES V. GRIFFIN, 303 U.S. 226, 232-237.  AS IS INDICATED AT
SOME LENGTH IN GENERAL COMMITTEE OF ADJUSTMENT V. MISSOURI-KANSAS-TEXAS
R. CO., POST, P. 323, THE EMERGENCE OF RAILWAY LABOR PROBLEMS FROM THE
FIELD OF CONCILIATION AND MEDIATION INTO THAT OF LEGALLY ENFORCIBLE
RIGHTS HAS BEEN QUITE RECENT.  UNTIL THE 1926 ACT THE LEGAL SANCTIONS
OF THE VARIOUS ACTS HAD BEEN FEW.  THE EMPHASIS OF THE LEGISLATION HAD
BEEN ON CONCILIATION AND MEDIATION; THE SANCTIONS WERE PUBLICITY AND
PUBLIC OPINION.  SINCE 1926 THERE HAS BEEN AN INCREASING NUMBER OF
LEGALLY ENFORCIBLE COMMANDS INCORPORATED INTO THE ACT.  AND CONGRESS
HAS UTILIZED ADMINISTRATIVE MACHINERY MORE FREELY IN THE SETTLEMENT OF
DISPUTES.  BUT LARGE AREAS OF THE FIELD STILL REMAIN IN THE REALM OF
CONCILIATION, MEDIATION, AND ARBITRATION.  ON ONLY A FEW PHASES OF THIS
CONTROVERSIAL SUBJECT HAS CONGRESS UTILIZED ADMINISTRATIVE OR JUDICIAL
MACHINERY AND INVOKED THE COMPULSIONS OF THE LAW.  WE NEED NOT
RECAPITULATE THAT HISTORY HERE.  NOR NEED WE REITERATE WHAT WE HAVE
SAID IN THE MISSOURI-KANSAS-TEXAS R. CO. CASE BEYOND OUR CONCLUSION
THAT CONGRESS INTENDED TO GO NO FURTHER IN ITS USE OF THE PROCESSES OF
ADJUDICATION AND LITIGATION THAN THE EXPRESS PROVISIONS OF THE ACT
INDICATE. 

IN THAT CONNECTION THE HISTORY OF SEC. 2, NINTH IS HIGHLY RELEVANT. 
IT WAS INTRODUCED INTO THE ACT IN 1934 AS A DEVICE TO STRENGTHEN AND
MAKE MORE EFFECTIVE THE PROCESSES OF COLLECTIVE BARGAINING.  VIRGINIAN
RY. CO. V. SYSTEM FEDERATION, SUPRA, PP. 543-549.  IT WAS AIMED NOT
ONLY AT COMPANY UNIONS WHICH HAD LONG PLAGUED LABOR RELATIONS (ID., PP.
545-547) BUT ALSO AT NUMEROUS JURISDICTIONAL DISPUTES BETWEEN UNIONS. 
COMMISSIONER EASTMAN, DRAFTSMAN OF THE 1934 AMENDMENTS, EXPLAINED THE
BILL AT THE CONGRESSIONAL HEARINGS.  HE STATED THAT WHETHER ONE
ORGANIZATION OR ANOTHER WAS THE PROPER REPRESENTATIVE OF A PARTICULAR
GROUP OF EMPLOYEES WAS "ONE OF THE MOST CONTROVERSIAL QUESTIONS IN
CONNECTION WITH LABOR ORGANIZATION MATTERS."  HEARINGS, COMMITTEE ON
INTERSTATE & FOREIGN COMMERCE, HOUSE OF REPRESENTATIVES, ON H.R. 7650,
73D CONG., 2D SESS., P. 40.  HE STATED THAT IT WAS VERY IMPORTANT "TO
PROVIDE A NEUTRAL TRIBUNAL WHICH CAN MAKE THE DECISION AND GET THE
MATTER SETTLED."  ID., P. 41.  BUT THE PROBLEM WAS DEEMED TO BE SO
"HIGHLY CONTROVERSIAL" THAT IT WAS THOUGHT THAT THE PRESTIGE OF THE
MEDIATION BOARD MIGHT BE ADVERSELY AFFECTED BY THE RULINGS WHICH IT
WOULD HAVE TO MAKE IN THESE JURISDICTIONAL DISPUTES.  ID., P. 40.  AND
SEE HEARINGS, COMMITTEE ON INTERSTATE COMMERCE, U.S. SENATE, ON S.
3266, 73D CONG., 2D SESS., PP. 134-135.  ACCORDINGLY SEC. 2, NINTH WAS
DRAFTED SO AS TO GIVE TO THE MEDIATION BOARD THE POWER TO "APPOINT A
COMMITTEE OF THREE NEUTRAL PERSONS WHO AFTER HEARING SHALL WITHIN TEN
DAYS DESIGNATE THE EMPLOYEES WHO MAY PARTICIPATE IN THE ELECTION." 
THAT WAS ADDED SO THAT THE BOARD'S "OWN USEFULNESS OF SETTLING DISPUTES
THAT MIGHT ARISE THEREAFTER MIGHT NOT BE IMPAIRED."  S. REP. NO. 1065,
73D CONG., 2D SESS., P. 3.  WHERE CONGRESS TOOK SUCH GREAT PAINS TO
PROTECT THE MEDIATION BOARD IN ITS HANDLING OF AN EXPLOSIVE PROBLEM, WE
CANNOT HELP BUT BELIEVE THAT IF CONGRESS HAD DESIRED TO IMPLICATE THE
FEDERAL JUDICIARY AND TO PLACE ON THE FEDERAL COURTS THE BURDEN OF
HAVING THE FINAL SAY ON ANY ASPECT OF THE PROBLEM, IT WOULD HAVE MADE
ITS DESIRE PLAIN. 

THE FACT THAT THE CERTIFICATE OF THE MEDIATION BOARD IS CONCLUSIVE IS
OF COURSE NO GROUND FOR JUDICIAL REVIEW.  GREAT NORTHERN RY. CO. V.
UNITED STATES, 277 U.S. 172, 182.  CONGRESS HAS LONG DELEGATED TO
EXECUTIVE OFFICERS OR EXECUTIVE AGENCIES THE DETERMINATION OF
COMPLICATED QUESTIONS OF FACT AND OF LAW.  AND WHERE NO JUDICIAL REVIEW
WAS PROVIDED BY CONGRESS THIS COURT HAS OFTEN REFUSED TO FURNISH ONE
EVEN WHERE QUESTIONS OF LAW MIGHT BE INVOLVED.  SEE LOUISIANA V.
MCADOO, 234 U.S. 627, 633; UNITED STATES V. GEORGE S. BUSH & CO., 310
U.S. 371; WORK V. RIVES, 267 U.S. 175; UNITED STATES V. BABCOCK, SUPRA.
WE NEED NOT DETERMINE THE FULL REACH OF THAT RULE.  SEE BATES & GUILD
CO. V. PAYNE, 194 U.S. 106; HOUSTON V. ST. LOUIS INDEPENDENT PACKING
CO., 249 U.S. 479.  BUT ITS APPLICATION HERE IS MOST APPROPRIATE BY
REASON OF THE PATTERN OF THIS ACT. 

WHILE THE MEDIATION BOARD IS GIVEN SPECIFIED POWERS IN THE CONDUCT OF
ELECTIONS, THERE IS NO REQUIREMENT AS TO HEARINGS.  AND THERE IS NO
EXPRESS GRANT OF SUBPOENA POWER.  THE MEDIATION BOARD MAKES NO
"ORDER."  AND ITS ONLY ULTIMATE FINDING OF FACT IS THE CERTIFICATE. 
VIRGINIAN RY. CO. V. SYSTEM FEDERATION, SUPRA, P. 562.  THE FUNCTION OF
THE BOARD UNDER SEC. 2, NINTH IS MORE THE FUNCTION OF A REFEREE.  TO
THIS DECISION OF THE REFEREE CONGRESS HAS ADDED A COMMAND ENFORCIBLE BY
JUDICIAL DECREE.  BUT THE "COMMAND" IS THAT "OF THE STATUTE, NOT OF THE
BOARD."  ID., P. 562. 

THE STATUTORY MANDATE IS THAT "THE CARRIER SHALL TREAT WITH THE
REPRESENTATIVE SO CERTIFIED."  SEC. 2, NINTH.  BUT THE SCHEME OF SEC.
2, NINTH IS ANALOGOUS TO THAT WHICH EXISTED IN BUTTE, A. & P. RY. CO.
V. UNITED STATES, 290 U.S. 127.  IN THAT CASE CONGRESS PROVIDED
COMPENSATION TO THE OWNERS OF SHORT-LINE RAILROADS FOR LOSSES
ATTRIBUTABLE TO FEDERAL CONTROL OF THE MAIN SYSTEMS DURING THE FIRST
WORLD WAR.  THE INTERSTATE COMMERCE COMMISSION WAS DIRECTED BY SEC. 204
OF THE TRANSPORTATION ACT OF 1920 TO ASCERTAIN THE AMOUNT OF DEFICITS
OR LOSSES AND TO "CERTIFY TO THE SECRETARY OF THE TREASURY THE SEVERAL
AMOUNTS PAYABLE" TO THE CARRIERS.  AND THE SECRETARY OF THE TREASURY
WAS "AUTHORIZED AND DIRECTED THEREUPON TO DRAW WARRANTS IN FAVOR OF
EACH SUCH CARRIER UPON THE TREASURY OF THE UNITED STATES FOR THE AMOUNT
SHOWN IN SUCH CERTIFICATE AS PAYABLE THERETO."  PAYMENTS WERE MADE TO
THE BUTTE COMPANY ON SUCH A CERTIFICATE AND THE UNITED STATES
INSTITUTED SUIT TO RECOVER ON THE THEORY THAT THE MONEY HAD BEEN
DISBURSED ON AN ERRONEOUS INTERPRETATION OF THE STATUTE.  THIS COURT,
SPEAKING THROUGH MR. JUSTICE BRANDEIS, HELD THAT SINCE AUTHORITY TO
INTERPRET THE STATUTE WAS "ESSENTIAL TO THE PERFORMANCE OF THE DUTY
IMPOSED UPON THE COMMISSION" AND SINCE "CONGRESS DID NOT PROVIDE A
METHOD OF REVIEW," THE GOVERNMENT, AS WELL AS THE CARRIER, WAS
"REMEDILESS WHETHER THE ERROR BE ONE OF FACT OR OF LAW."  ID., PP. 142
143.  CF. UNITED STATES V. GREAT NORTHERN RY. CO., 287 U.S. 144. 

IN THE PRESENT CASE THE AUTHORITY OF THE MEDIATION BOARD IN ELECTION
DISPUTES TO INTERPRET THE MEANING OF "CRAFT" AS USED IN THE STATUTE IS
NO LESS CLEAR AND NO LESS ESSENTIAL TO THE PERFORMANCE OF ITS DUTY. 
THE STATUTORY COMMAND THAT THE DECISION OF THE BOARD SHALL BE OBEYED IS
NO LESS EXPLICIT.  UNDER THIS ACT CONGRESS DID NOT GIVE THE BOARD
DISCRETION TO TAKE OR WITHHOLD ACTION, TO GRANT OR DENY RELIEF.  IT
GAVE IT NO ENFORCEMENT FUNCTIONS.  IT WAS TO FIND THE FACT AND THEN
CEASE.  CONGRESS PRESCRIBED THE COMMAND.  LIKE THE COMMAND IN THE BUTTE
RY. CASE IT CONTAINED NO EXCEPTION.  HERE AS IN THAT CASE THE INTENT
SEEMS PLAIN - THE DISPUTE WAS TO REACH ITS LAST TERMINAL POINT WHEN THE
ADMINISTRATIVE FINDING WAS MADE.  THERE WAS TO BE NO DRAGGING OUT OF
THE CONTROVERSY INTO OTHER TRIBUNALS OF LAW.    THAT CONCLUSION IS
REINFORCED BY THE HIGHLY SELECTIVE MANNER IN WHICH CONGRESS HAS
PROVIDED FOR JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS OR DETERMINATIONS
UNDER THE ACT.  THERE IS NO GENERAL PROVISION FOR SUCH REVIEW.  BUT
CONGRESS HAS EXPRESSLY PROVIDED FOR IT IN TWO INSTANCES.  THUS CONGRESS
GAVE THE NATIONAL RAILROAD ADJUSTMENT BOARD JURISDICTION OVER DISPUTES
GROWING OUT OF "GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION
OF AGREEMENTS CONCERNING RATES OF PAY, RULES, OR WORKING CONDITIONS." 
SEC. 3, FIRST (I).  THE VARIOUS DIVISIONS OF THE ADJUSTMENT BOARD HAVE
AUTHORITY TO MAKE AWARDS.  SEC. 3, FIRST (K)-(O).  AND SUITS BASED ON
THOSE AWARDS MAY BE BROUGHT IN THE FEDERAL DISTRICT COURTS.  SEC. 3,
FIRST (P).  IN SUCH SUITS "THE FINDINGS AND ORDER OF THE DIVISION OF
THE ADJUSTMENT BOARD SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN
STATED."  THE OTHER INSTANCE IN THE ACT WHERE CONGRESS PROVIDED FOR
JUDICIAL REVIEW IS UNDER SEC. 9.  THE ACT PRESCRIBES MACHINERY FOR THE
VOLUNTARY ARBITRATION OF LABOR CONTROVERSIES.  SEC. 5, THIRD; SEC. 7;
SEC. 8.  IT IS PROVIDED IN SEC. 9 THAT AN AWARD OF A BOARD OF
ARBITRATION MAY BE IMPEACHED BY AN ACTION INSTITUTED IN A FEDERAL
DISTRICT COURT ON THE GROUNDS SPECIFIED IN SEC. 9, ONE OF WHICH IS THAT
"THE AWARD PLAINLY DOES NOT CONFORM TO THE SUBSTANTIVE REQUIREMENTS
LAID DOWN BY THIS ACT FOR SUCH AWARDS, OR THAT THE PROCEEDINGS WERE NOT
SUBSTANTIALLY IN CONFORMITY WITH THIS ACT."  SEC. 9, THIRD (A).  WHEN
CONGRESS IN SEC. 3 AND IN SEC. 9 PROVIDED FOR JUDICIAL REVIEW OF TWO
TYPES OF ORDERS OR AWARDS AND IN SEC. 2 OF THE SAME ACT OMITTED ANY
SUCH PROVISION AS RESPECTS A THIRD TYPE, IT DREW A PLAIN LINE OF
DISTINCTION.  AND THE INFERENCE IS STRONG FROM THE HISTORY OF THE ACT
THAT THAT DISTINCTION WAS NOT INADVERTENT.  THE LANGUAGE OF THE ACT
READ IN LIGHT OF THAT HISTORY SUPPORTS THE VIEW THAT CONGRESS GAVE
ADMINISTRATIVE ACTION UNDER SEC. 2, NINTH A FINALITY WHICH IT DENIED
ADMINISTRATIVE ACTION UNDER THE OTHER SECTIONS OF THE ACT. 

SHIELDS V. UTAH IDAHO CENTRAL R. CO., 305 U.S. 177, IS NOT OPPOSED TO
THAT VIEW.  THAT CASE INVOLVED A DETERMINATION BY THE INTERSTATE
COMMERCE COMMISSION UNDER SEC. 1, FIRST OF THE ACT THAT THE LINES OF
THE CARRIER IN QUESTION DID NOT CONSTITUTE AN INTERURBAN ELECTRIC
RAILWAY.  THE RESULT WAS THAT THE RAILROAD COMPANY WAS A "CARRIER"
WITHIN THE MEANING OF THE ACT AND SUBJECT TO ITS CRIMINAL PENALTIES. 
THE CARRIER BROUGHT A SUIT IN EQUITY AGAINST A UNITED STATES ATTORNEY
TO RESTRAIN CRIMINAL PROSECUTIONS UNDER THE ACT.  THIS COURT ALLOWED
THE ACTION TO BE MAINTAINED EVEN THOUGH THE RAILWAY LABOR ACT CONTAINED
NO PROVISION FOR JUDICIAL REVIEW OF SUCH RULINGS.  BUT THE DECISION WAS
PLACED ON THE TRADITIONAL USE OF EQUITY PROCEEDINGS TO ENJOIN CRIMINAL
PROCEEDINGS.  305 U.S. P. 183.  MOREOVER, IT WAS THE ACTION OF THE
INTERSTATE COMMERCE COMMISSION WHICH THIS COURT HELD TO BE REVIEWABLE. 
ALTHOUGH THE AUTHORITY OF THE COMMISSION DERIVED FROM THE RAILWAY LABOR
ACT, THIS COURT QUITE PROPERLY RELATED THE ISSUE NOT TO RAILWAY LABOR
DISPUTES BUT TO THOSE TRANSPORTATION PROBLEMS WITH WHICH THE COMMISSION
HAD LONG BEEN ENGAGED.  AND SEE SHANNAHAN V. UNITED STATES, 303 U.S.
596.  THE LATTER HAVE QUITE A DIFFERENT TRADITION IN FEDERAL LAW THAN
THOSE PERTAINING TO CARRIER-EMPLOYEE RELATIONSHIPS. 

WHAT IS OPEN WHEN A COURT OF EQUITY IS ASKED FOR ITS AFFIRMATIVE HELP
BY GRANTING A DECREE FOR THE ENFORCEMENT OF A CERTIFICATE OF THE
MEDIATION BOARD UNDER SEC. 2, NINTH RAISES QUESTIONS NOT NOW BEFORE US.
SEE VIRGINIAN RY. CO. V. SYSTEM FEDERATION, SUPRA, PP. 559-562. 
REVERSED. 

FN1  SEC. 2, NINTH PROVIDES:  "IF ANY DISPUTE SHALL ARISE AMONG A
CARRIER'S EMPLOYEES AS TO WHO ARE THE REPRESENTATIVES OF SUCH EMPLOYEES
DESIGNATED AND AUTHORIZED IN ACCORDANCE WITH THE REQUIREMENTS OF THIS
ACT, IT SHALL BE THE DUTY OF THE MEDIATION BOARD, UPON REQUEST OF
EITHER PARTY TO THE DISPUTE, TO INVESTIGATE SUCH DISPUTE AND TO CERTIFY
TO BOTH PARTIES, IN WRITING, WITHIN THIRTY DAYS AFTER THE RECEIPT OF
THE INVOCATION OF ITS SERVICES, THE NAME OR NAMES OF THE INDIVIDUALS OR
ORGANIZATIONS THAT HAVE BEEN DESIGNATED AND AUTHORIZED TO REPRESENT THE
EMPLOYEES INVOLVED IN THE DISPUTE, AND CERTIFY THE SAME TO THE
CARRIER.  UPON RECEIPT OF SUCH CERTIFICATION THE CARRIER SHALL TREAT
WITH THE REPRESENTATIVE SO CERTIFIED AS THE REPRESENTATIVE OF THE CRAFT
OR CLASS FOR THE PURPOSES OF THIS ACT.  IN SUCH AN INVESTIGATION, THE
MEDIATION BOARD SHALL BE AUTHORIZED TO TAKE A SECRET BALLOT OF THE
EMPLOYEES INVOLVED, OR TO UTILIZE ANY OTHER APPROPRIATE METHOD OF
ASCERTAINING THE NAMES OF THEIR DULY DESIGNATED AND AUTHORIZED
REPRESENTATIVES IN SUCH MANNER AS SHALL INSURE THE CHOICE OF
REPRESENTATIVES BY THE EMPLOYEES WITHOUT INTERFERENCE, INFLUENCE, OR
COERCION EXERCISED BY THE CARRIER.  IN THE CONDUCT OF ANY ELECTION FOR
THE PURPOSES HEREIN INDICATED THE BOARD SHALL DESIGNATE WHO MAY
PARTICIPATE IN THE ELECTION AND ESTABLISH THE RULES TO GOVERN THE
ELECTION, OR MAY APPOINT A COMMITTEE OF THREE NEUTRAL PERSONS WHO AFTER
HEARING SHALL WITHIN TEN DAYS DESIGNATE THE EMPLOYEES WHO MAY
PARTICIPATE IN THE ELECTION.  THE BOARD SHALL HAVE ACCESS TO AND HAVE
POWER TO MAKE COPIES OF THE BOOKS AND RECORDS OF THE CARRIERS TO OBTAIN
AND UTILIZE SUCH INFORMATION AS MAY BE DEEMED NECESSARY BY IT TO CARRY
OUT THE PURPOSES AND PROVISIONS OF THIS PARAGRAPH." 

FN2  "EVEN COURTS HAVE BEEN KNOWN TO MAKE RULINGS THOUGHT BY COUNSEL
TO BE ERRONEOUS."  CRANE V. HAHLO, 258 U.S. 142, 148. 

MR. JUSTICE BLACK AND MR. JUSTICE RUTLEDGE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED, DISSENTING: 

THIS IS AN ACTION BY THE PETITIONERS, THE SWITCHMEN'S UNION OF NORTH
AMERICA (HEREINAFTER REFERRED TO AS THE SWITCHMEN) AND SOME OF ITS
MEMBERS AGAINST THE NATIONAL MEDIATION BOARD, ITS MEMBERS, THE
BROTHERHOOD OF RAILROAD TRAINMEN (HEREAFTER REFERRED TO AS THE
BROTHERHOOD) AND THE NEW YORK CENTRAL RAILROAD COMPANY AND THE MICHIGAN
CENTRAL RAILROAD COMPANY, CARRIER EMPLOYERS OF THE MEMBERS OF THE
BEFORE-MENTIONED UNIONS.  THE INDIVIDUAL PETITIONERS ARE MEMBERS AND
OFFICIALS OF THE SWITCHMEN'S UNION AND EMPLOYEES OF ONE OR THE OTHER OF
THE CARRIERS. 

PETITIONERS WERE PLAINTIFFS IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA.  A CERTIFICATION OF REPRESENTATIVES FOR
COLLECTIVE BARGAINING UNDER SEC. 2, NINTH, OF THE RAILWAY LABOR ACT
FN1  WAS MADE BY THE BOARD TO THE CARRIERS.  THIS CERTIFICATION
FOLLOWED THE INVOCATION OF THE SERVICES OF THE BOARD TO INVESTIGATE A
DISPUTE AMONG THE YARDMEN OF THE CARRIERS AS TO THEIR REPRESENTATIVE. 
THE BROTHERHOOD SOUGHT TO BE THE REPRESENTATIVE FOR ALL THE YARDMEN OF
RAIL LINES, INCLUDING THE MICHIGAN CENTRAL, OPERATED BY THE NEW YORK
CENTRAL RAILROAD COMPANY AND OBTAINED THE DESIGNATION OF PARTICIPANTS
IN THE ELECTION FOR REPRESENTATIVE OF THE EMPLOYEES UPON THIS WIDE
BASIS.  THE SWITCHMEN CONTENDED THAT YARDMEN OF CERTAIN DESIGNATED
PARTS OF THE CARRIER PROPERTY SHOULD BE PERMITTED TO CHOOSE SEPARATELY
THEIR OWN REPRESENTATIVES INSTEAD OF BEING COMPELLED TO TAKE PART IN A
CARRIER-WIDE ELECTION.  FN2 

THE BOARD OF MEDIATION IS THE AGENCY CREATED BY STATUTE TO DESIGNATE
EMPLOYEES WHO MAY PARTICIPATE IN THE SELECTION OF REPRESENTATIVES UNDER
THE ACT.  FN3  THE BOARD UNDERTOOK TO PERFORM THIS FUNCTION AND MADE
ITS FINDINGS AND CONCLUSIONS AFTER PRESENTATION OF THE ISSUES BY THE
BROTHERHOOD, THE SWITCHMEN AND OTHER INTERVENORS.  THE BOARD CONCLUDED
THAT THE 

"RAILWAY LABOR ACT VESTS THE BOARD WITH NO DISCRETION TO SPLIT A
SINGLE CARRIER OR COMBINE TWO OR MORE CARRIERS FOR THE PURPOSE OF
DETERMINING WHO SHALL BE ELIGIBLE TO VOTE FOR A REPRESENTATIVE OF A
CRAFT OR CLASS OF EMPLOYEES UNDER SECTION 2, NINTH, OF THE ACT, AND THE
ARGUMENT THAT IT HAS SUCH POWER FAILS TO FURNISH ANY BASIS OF LAW FOR
SUCH ADMINISTRATIVE DISCRETION." 

CONSEQUENTLY THE BOARD FOUND THAT THE "NEW YORK CENTRAL RAILROAD
COMPANY AND ALL OF ITS OPERATED SUBSIDIARIES  ...  IS A SINGLE CARRIER"
AND 

"ALL OF THE EMPLOYEES OF ANY GIVEN CRAFT OR CLASS, SUCH AS YARDMEN,
IN THE SERVICE OF A CARRIER SO DETERMINED MUST THEREFORE BE TAKEN
TOGETHER AS CONSTITUTING THE PROPER BASIS FOR DETERMINING THEIR
REPRESENTATION IN CONFORMITY WITH SECTION 2, NINTH, OF THE RAILWAY
LABOR ACT. 

"THE MEDIATOR ASSIGNED TO THE INVESTIGATION OF THIS DISPUTE WILL
THEREFORE PROCEED ACCORDINGLY WITH THE COMPLETION OF HIS DUTIES IN
CONNECTION WITH THE BOARD'S INVESTIGATION OF THIS DISPUTE.  THAT IS TO
SAY, HE SHALL REGARD AS THE PROPER BASIS FOR THE REPRESENTATION OF THE
YARDMEN IN THE SERVICE OF THE ENTIRE NEW YORK CENTRAL RAILROAD COMPANY
ALL OF THE YARDMEN IN SUCH SERVICE."  THE ELECTION BASED UPON THIS
DETERMINATION AND CERTIFICATION FOLLOWED IN DUE COURSE. 

AFTER THE BOARD'S DESIGNATION OF ALL YARDMEN OF THE CARRIER LINES AS
PARTICIPANTS IN THE ELECTION, THE ELECTION WAS HELD AND THE BROTHERHOOD
CHOSEN AS THE REPRESENTATIVE.  AS STATED IN THE COURT'S OPINION, UPON
THE CERTIFICATION OF THE RESULT TO THE CARRIERS, PETITIONERS SOUGHT TO
HAVE THE DETERMINATION BY THE BOARD OF THE PARTICIPANTS AND THE
CERTIFICATION OF THE REPRESENTATIVES CANCELLED.  BUT IN ADDITION AN
INJUNCTION AGAINST THE BROTHERHOOD AND THE CARRIERS WAS ASKED TO
RESTRAIN THEM FROM NEGOTIATING AGREEMENTS CONCERNING THE CRAFT OF
YARDMEN ON THE CARRIERS' LINES.  THIS SUIT WAS BROUGHT IN THE DISTRICT
COURT.  IT WAS THERE DISMISSED ON THE GROUND THAT THE CONCLUSION OF THE
BOARD THAT ALL YARDMEN IN THE SERVICE OF A SINGLE CARRIER MAY BE TAKEN
TOGETHER AS CONSTITUTING A PROPER BASIS FOR SELECTING A REPRESENTATIVE
FOR COLLECTIVE BARGAINING "IS REASONABLE, PROPER AND NOT AN ABUSE OF
DISCRETION" AND THEREFORE SHOULD NOT BE SET ASIDE.  THIS DECREE WAS
AFFIRMED BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA BUT UPON THE GROUND OF LACK OF POWER IN THE BOARD TO ACT
OTHERWISE IF THE LINES INVOLVED WERE A SINGLE CARRIER.  THE UNITY OF
THE CARRIER IS ACCEPTED.  FN4 

AS TREATED BY THE BOARD AND THE COURTS BELOW THE PROBLEM PRESENTED BY
THIS CASE IS ONE OF STATUTORY INTERPRETATION, WHETHER OR NOT SEC. 2,
NINTH, GIVES DISCRETION TO THE BOARD TO SPLIT THE CRAFTS OF A SINGLE
CARRIER INTO SMALLER UNITS SO THAT THE MEMBERS OF SUCH UNITS MAY CHOOSE
REPRESENTATIVES OF EMPLOYEES.  THIS COURT BASES ITS CONCLUSION UPON THE
LACK OF POWER IN ANY COURT TO PASS UPON SUCH AN ISSUE AND LEAVES THE
INTERPRETATION OF THE AUTHORITY GRANTED BY SEC. 2, NINTH, FINALLY TO
THE BOARD.  WITH THIS DENIAL OF JUDICIAL POWER, I CANNOT AGREE. 

THE CONSTITUTIONAL VALIDITY OF THE PRINCIPLE OF COLLECTIVE BARGAINING
CONCERNING "GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION OF
AGREEMENTS COVERING RATES OF PAY, RULES, OR WORKING CONDITIONS"  FN5
OF EMPLOYEES OF INTERSTATE CARRIERS IS ACCEPTED.  FN6  IT FOLLOWS THAT
THE CONGRESS, AS AN INCIDENT TO SUCH LEGISLATION, HAS THE POWER TO
DESIGNATE THE REPRESENTATIVE OF THE EMPLOYEES OR GROUP OR CRAFT OF
EMPLOYEES FOR THE PURPOSE OF BARGAINING.  INSTEAD OF MAKING SUCH
SELECTION ITSELF CONGRESS HAS DELEGATED TO THE EMPLOYEES THE CHOICE OF
THE REPRESENTATIVES  FN7 AND THE DETERMINATION OF THESE
REPRESENTATIVES, IN CASE OF ANY DISPUTE AS TO THEIR IDENTITY, TO THE
NATIONAL MEDIATION BOARD.  AS THESE DELEGATIONS ARE SURROUNDED BY
ADEQUATE STANDARDS NO QUESTION IS RAISED AS TO THE VALIDITY OF THE
STATUTORY PROVISIONS FOR THE SELECTION OR DETERMINATION OF THE
REPRESENTATIVES.  CF. OPP COTTON MILLS V. ADMINISTRATOR OF WAGE AND
HOUR DIVISION, 312 U.S. 126, 142-146. 

WHERE DUTIES ARE DELEGATED, AS HERE, TO ADMINISTRATIVE OFFICERS,
THOSE ADMINISTRATIVE OFFICERS ARE AUTHORIZED TO ACT ONLY IN ACCORDANCE
WITH THE STATUTORY STANDARDS ENACTED FOR THEIR GUIDANCE.  OTHERWISE WE
SHOULD RISK ADMINISTRATIVE ACTION BEYOND OR CONTRARY TO THE LEGISLATIVE
WILL.  CF. UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP., 315 U.S.
475, 489.  THE RAILWAY LABOR ACT DOES NOT PROVIDE SPECIFICALLY FOR
JUDICIAL REVIEW OF THE CERTIFICATION BY THE MEDIATION BOARD UNDER SEC.
2, NINTH, OF REPRESENTATIVES, EVEN THOUGH THAT CERTIFICATION IS BASED
UPON AN ERRONEOUS INTERPRETATION OF THE STATUTE.  NOR IS THERE ANY
CLAUSE IN THE ACT GRANTING TO INTERESTED PARTIES, GENERALLY, A RIGHT TO
HAVE ACTIONS OF THE BOARD REVIEWED.  WHERE AN ACT FAILS TO PROVIDE FOR
REVIEW OF PRELIMINARY RULINGS DETERMINING STATUS IN PREPARATION FOR
SUBSEQUENT ACTION,  FN8  OR PERFORMING ADMINISTRATIVE DUTIES WHICH WERE
NOT FINAL IN CHARACTER N9, SUCH RULINGS HAVE NOT BEEN CONSIDERED AS
SUBJECT TO REVIEW BY VIRTUE OF GENERAL STATUTORY REVIEW PROVISIONS. 
THE REASON THAT REVIEW IS NOT ALLOWED AT SUCH A STAGE IS THAT THE
RULINGS OR ORDERS ARE ONLY PREPARATION FOR FUTURE EFFECTIVE ACTION. 
THE ROCHESTER TELEPHONE CORPORATION CASE, 307 U.S. AT 143-4, TEACHES
THAT WHERE THIS OTHERWISE ABSTRACT DETERMINATION OF STATUS HAS
INSTANTANEOUS, FINAL EFFECT, SUCH DETERMINATION COMES UNDER GENERAL
STATUTORY REVIEW PROVISIONS.  IN THE PRESENT INSTANCE THE CERTIFICATION
OF SEC. 2, NINTH, IS BUT A PREPARATORY STEP TO BRING ABOUT THE
COLLECTIVE BARGAINING WHICH IS THE ESSENTIAL PURPOSE OF THE ACT BUT IT
DOES HAVE AN IMMEDIATE EFFECT SINCE IT DESTROYS THE PETITIONERS'
ALLEGED RIGHT TO PARTICIPATE IN AN ELECTION BASED ON THEIR VIEW OF THE
PROPER ELECTORAL UNIT.  YET THERE IS NO DIRECT REVIEW OF THE
CERTIFICATION, GENERAL OR SPECIAL, BY THE TERMS OF THE RAILWAY LABOR
ACT. 

NOR IS THERE NECESSARILY AN OPPORTUNITY TO ATTACK THE CERTIFICATION
IN LATER PROCEEDINGS.  AN AWARD OF THE ADJUSTMENT BOARD PROBABLY COULD
NOT BE CHALLENGED BY THE PARTIES, IN A JUDICIAL PROCEEDING FOR ITS
ENFORCEMENT, ON THE GROUND THAT THE REPRESENTATIVES WERE NOT PROPERLY
CHOSEN SINCE THIS ERROR WOULD BE IRRELEVANT TO THE EMPLOYEE'S RIGHTS. 
FN10  ON THE OTHER HAND, THE AWARD OF A BOARD OF ARBITRATION UNDER SEC.
7 IS SUBJECT TO ATTACK THROUGH STATUTORY REVIEW PROVIDED BY SEC. 9,
FIRST, SECOND AND THIRD.  WE CONSTRUE THE PROVISION OF THIRD (A) THAT
THE AWARD MAY BE IMPEACHED BECAUSE "THE PROCEEDINGS WERE NOT
SUBSTANTIALLY IN CONFORMITY WITH THIS ACT" TO REFER TO THE SELECTION OF
BARGAINING REPRESENTATIVES.  FN11  NO OTHER ORDERS UNDER THE ACT,
LEGALLY BINDING ON EMPLOYEES, SPRING FROM ACTS OF BARGAINING
REPRESENTATIVES.  FN12    THE PETITIONERS MAY NOT HAVE AN OPPORTUNITY
TO IMPEACH OR CONTEST AN AWARD OF A BOARD OF ARBITRATION REACHED AFTER
COLLECTIVE BARGAINING.  THE NEGOTIATIONS BETWEEN THE CERTIFIED
REPRESENTATIVE AND THE CARRIERS MAY NOT REQUIRE ORDERS OF THE
ADJUSTMENT BOARD OR THE BOARD OF ARBITRATION.  MEDIATION MAY COMPOSE
THE DIFFERENCES.  SEC. 5.  IN SUCH CASES THERE IS NO OPPORTUNITY FOR
THE PETITIONERS TO INTERVENE.  AS A CONSEQUENCE THE SWITCHMEN'S UNION
AND ITS MEMBERS ARE LEFT WITHOUT AN OPPORTUNITY SPECIFICALLY PROVIDED
BY THE ACT TO CONTEST THE RULING OF THE BOARD OF MEDIATION THAT THE ACT
"VESTS THE BOARD WITH NO DISCRETION TO SPLIT A SINGLE CARRIER ...  FOR
THE PURPOSE OF DETERMINING WHO SHALL BE ELIGIBLE TO VOTE FOR A
REPRESENTATIVE OF A CRAFT OR CLASS OF EMPLOYEES UNDER SECTION 2, NINTH,
OF THE ACT,  ...  " THEY EXHAUSTED THEIR ADMINISTRATIVE REMEDY WHEN
THEY APPEARED BEFORE THE MEDIATION BOARD.  303 U.S. 41, 50. 

THE MEMBERS OF THE SWITCHMEN'S UNION AND THE UNION ITSELF, IN VIEW OF
THE FACT THAT IT WAS THE BARGAINING REPRESENTATIVE OF ITS MEMBERS PRIOR
TO THIS CONTROVERSY (R. 79), HAVE AN INTEREST RECOGNIZED BY LAW IN THE
SELECTION OF REPRESENTATIVES.  TEXAS & NEW ORLEANS R. CO. V.
BROTHERHOOD OF CLERKS, 281 U.S. 548, 571.  THIS RIGHT ADHERES TO HIS
CONDITION AS AN EMPLOYEE AS A RIGHT OF PRIVACY DOES TO A PERSON.  THIS
RIGHT IS CREATED FOR THESE EMPLOYEES BY THE RAILWAY LABOR ACT AND, IN
APPROPRIATE PROCEEDINGS, A REMEDY, PROVIDED BY THE GENERAL JURISDICTION
OF DISTRICT COURTS, TO TEST THE EXTENT OF THIS RIGHT TO SELECT
REPRESENTATIVES FOLLOWS FROM THE CREATION OF THE RIGHT UNLESS NEGATIVED
BY STATUTE, WITHDRAWAL OF JURISDICTION OR THE LIKE, WHEN THE RIGHT IS
CLAIMED TO BE INFRINGED.  ID., 569-70 VIRGINIAN RY. CO. V. SYSTEM
FEDERATION, 300 U.S. 515, 543.  THE REMEDY MAY NOT BE AVAILABLE TO
PARTIES WITH A STANDING TO ENFORCE IT BECAUSE, FOR EXAMPLE, THE
INFRINGEMENT MAY BE BY GOVERNMENTAL ACTION WITHOUT CONSENT OF THE
GOVERNMENT TO BE SUED FOR A WRONG COMMITTED BY IT.  THE FACT THAT THE
REMEDY MAY COME FROM THE GENERAL JURISDICTION OF THE COURTS RATHER THAN
FROM THE REVIEW PROVISIONS OF THE ACT IS NOT SIGNIFICANT.  WE CANNOT
CONCLUDE THAT BECAUSE NO STATUTORY REVIEW EXISTS NO REMEDY FOR
MISINTERPRETATION OF STATUTORY POWERS IS LEFT.  NO SUCH PRESUMPTION OF
OBLITERATION OF RIGHTS MAY BE ENTERTAINED.  A.F. OF L. V. LABOR BOARD,
308 U.S. 401, 412; UNITED STATES V. GRIFFIN, 303 U.S. 226, 238;
SHANNAHAN V. UNITED STATES, 303 U.S. 596, 603. 

THE COURT IN THIS CASE AND IN GENERAL COMMITTEE OF ADJUSTMENT V.
MISSOURI-KANSAS-TEXAS R. CO., POST, P. 323, GIVES AS REASONS FOR
DENYING POWER TO THE COURTS TO DETERMINE THE MEANING OF THE STATUTE THE
HISTORY OF FEDERAL RAILWAY LABOR LEGISLATION AND THE OMISSION OF ANY
PROVISION IN THIS ACT FOR REVIEW OF THE DETERMINATION OF VOTING
PARTICIPANTS UNDER SEC. 2, NINTH. 

THE HISTORY OF THIS LEGISLATION IS ADEQUATELY STATED IN THE OPINIONS
TO WHICH REFERENCE IS MADE IN THE PRECEDING PARAGRAPH.  FROM THEIR
REVIEW OF THE SUCCESSIVE ENACTMENTS IN THIS FIELD, IT IS PLAIN THAT
UNTIL THE 1926 ACT, THE SCHEME FOR ADJUSTMENT OF RAILWAY LABOR DISPUTES
WAS WITHOUT LEGAL SANCTIONS.  IN THAT ACT, SEC. 2, THIRD,  FN13  SEC.
9, SECOND,  FN14  PROVIDING FOR THE ENFORCEMENT OF ARBITRATION AWARDS,
AND SEC. 10, AUTHORIZING EMERGENCY BOARDS AND FORBIDDING CHANGES IN THE
CONDITIONS OUT OF WHICH THE CONTROVERSY AROSE FOR THIRTY DAYS AFTER THE
CREATION OF AN EMERGENCY BOARD, ESTABLISHED RIGHTS WHICH WERE LEGALLY
ENFORCEABLE.  THE STATUTE MADE THE AWARDS OF SEC. 9 SUBJECT TO JUDICIAL
CONTROL BUT ONLY A DICTUM OF THIS COURT AS TO SEC. 10 AND JUDICIAL
INTERPRETATION OF SEC. 2, THIRD, PROVIDED JUDICIAL SANCTION TO COMPEL
COMPLIANCE WITH THEIR PROVISIONS.  TEXAS & NEW ORLEANS R. CO. V.
BROTHERHOOD OF CLERKS, 281 U.S. 548, 564, 566-70. 

THE 1934 ACT WAS DIRECTED PARTICULARLY AT CONTROL OVER THE INITIAL
STEP IN COLLECTIVE BARGAINING - THE DETERMINATION OF THE EMPLOYEES'
REPRESENTATIVES.  SECTION 2, NINTH, HERE UNDER EXAMINATION, WAS AN
ENTIRELY NEW PROVISION.  FN15  BY THE CLERKS CASE, JUST CITED, DECIDED
IN 1929 AND WELL KNOWN AS A LANDMARK OF LABOR LAW, THIS COURT HAD
UPHELD JUDICIAL COMPULSION ON THE CARRIER TO PROHIBIT ITS INTERFERENCE
IN THE SELECTION OF EMPLOYEE REPRESENTATIVES EVEN THOUGH THERE WAS NO
STATUTORY AUTHORITY FOR SUCH JUDICIAL ACTION.  FN16  SECTION 2, NINTH,
OF THE 1934 ACT CREATED BY ITS TERMS A RIGHT IN EMPLOYEES TO
PARTICIPATE IN AN ELECTION UNDER THE DESIGNATION OF THE BOARD IN
ACCORDANCE WITH THE AUTHORIZATION OF THE STATUTE.  IT WAS ONLY NATURAL
THEREFORE THAT CONGRESS SHOULD ASSUME THAT WHERE ITS OWN CREATURE, THE
MEDIATION BOARD, WAS CHARGED WITH INTERFERENCE WITH THE RIGHT OF
EMPLOYEES BY A MISCONSTRUCTION OF THE STATUTE UNDER WHICH IT EXISTED,
THAT ERROR OF LAW WOULD BE SUBJECT TO JUDICIAL EXAMINATION TO DETERMINE
THE CORRECT MEANING. 

NOTHING TO WHICH OUR ATTENTION HAS BEEN CALLED APPEARS IN THE
LEGISLATIVE HISTORY INDICATING A DETERMINATION OF CONGRESS TO EXCLUDE
THE COURTS FROM THEIR CUSTOMARY POWER TO INTERPRET THE LAWS OF THE
NATION IN CASES OR CONTROVERSIES ARISING FROM ADMINISTRATIVE VIOLATIONS
OF STATUTORY STANDARDS.  NO INTENTION TO REFUSE JUDICIAL AID IN
ADMINISTRATION OF THE ACT IS APPARENT.  ATTENTION WAS CALLED JUST ABOVE
TO THE CRIMINAL SANCTIONS WRITTEN INTO SEC. 2, TENTH.  IN ADDITION
PROVISION IS MADE IN THE ACT FOR JUDICIAL REVIEW OF THE ORDERS OF THE
NATIONAL RAILROAD ADJUSTMENT BOARD, SEC. 3, FIRST (P), AND BOARD OF
ARBITRATION AWARDS, SEC. 9, THIRD.  FURTHERMORE, THE NATIONAL MEDIATION
BOARD HAS APPEARED IN MANY COURT CASES, AS HERE, INVOLVING ITS
CERTIFICATIONS AND SO FAR AS APPEARS NEITHER THE PARTIES NOR THE COURTS
HAVE QUESTIONED JUDICIAL POWER.  FN17 THE BOARD FEELS THAT SUCH REVIEW
HAS BEEN PROFITABLE.  FN18  AGAINST THESE LATER FACTS, THE EARLIER
RELIANCE, PRIOR TO 1926, ON VOLUNTARY ACTION TO ENFORCE THE RAILWAY
LABOR STATUTES HAS LITTLE SIGNIFICANCE. 

NOR IN VIEW OF THE STATEMENTS AND THE DECISION IN THE CLERKS CASE, DO
WE THINK THAT THE OMISSION OF STATUTORY REVIEW FROM THE PROVISIONS OF
SEC. 2, NINTH, IS IMPORTANT.  THE REQUIREMENT OF THAT VERY SUBSECTION
THAT "THE CARRIER SHALL TREAT WITH THE REPRESENTATIVES SO CERTIFIED"
WAS CONSTRUED AS AN AFFIRMATIVE COMMAND OPEN TO JUDICIAL ENFORCEMENT
WITHOUT SPECIFIC STATUTORY AUTHORITY.  VIRGINIAN RY. CO. V. SYSTEM
FEDERATION, 300 U.S. 515, 544. 

BUTTE, A. & P. RY. CO. V. UNITED STATES, 290 U.S. 127, IS CITED AS
AUTHORITY FOR A CONCLUSION THAT DELEGATION OF AN ADMINISTRATIVE DUTY
CARRIES TO THE APPOINTEE THE AUTHORITY TO FINALLY CONSTRUE THE STATUTE
SINCE SUCH AUTHORITY WAS "'ESSENTIAL TO THE PERFORMANCE OF THE DUTY
IMPOSED UPON THE COMMISSION' AND SINCE 'CONGRESS DID NOT PROVIDE A
METHOD OF REVIEW,' THE GOVERNMENT, AS WELL AS THE CARRIER, WAS
'REMEDILESS WHETHER THE ERROR BE ONE OF FACT OR OF LAW.'"  THIS WAS A
CASE IN WHICH THE GOVERNMENT ORDERED PAYMENTS TO CARRIERS AS
COMPENSATION FOR DEFICITS INCURRED DURING FEDERAL OPERATION OF THE
RAILWAYS.  IT WAS DETERMINED THAT CONGRESS INTENDED TO LEAVE FINALLY
THE DETERMINATION OF THE BENEFICIARIES TO ITS AGENT, THE INTERSTATE
COMMERCE COMMISSION.  THIS INTENTION IS FAR EASIER TO DEDUCE WHEN THE
CONGRESS IS DEALING WITH ITS OWN MONEY THAN WHERE IT CREATES RIGHTS OF
SUFFRAGE FOR CITIZENS TO EXERCISE FOR THE IMPROVEMENT OF THEIR ECONOMIC
CONDITION. 

THE VIRGINIAN RAILWAY CASE PRESENTS A MUCH CLOSER ANALOGY TO THE
PRESENT CONTROVERSY.  AS POINTED OUT ABOVE, IT DEALT WITH THE CARRIER'S
DUTY TO "TREAT WITH" EMPLOYEES DECLARED BY SEC. 2, NINTH.  EMPLOYEES
SOUGHT AND OBTAINED A JUDICIAL ORDER DIRECTING THE RAILROAD TO
NEGOTIATE ON THE GROUND THAT NEW DUTIES, REQUIREMENTS AND RIGHTS WERE
CREATED "MANDATORY IN FORM AND CAPABLE OF ENFORCEMENT BY JUDICIAL
PROCESS."  DESPITE THE ABSENCE OF STATUTORY AUTHORITY FOR COURT ACTION
IT WAS HELD CONGRESS INTENDED LEGAL SANCTION.  A PROHIBITION OF
NEGOTIATION, SUCH AS PETITIONERS SEEK HERE, IS A FORTIORI, WITHIN
JUDICIAL COMPETENCE.  FN19 

ONE FACTOR TO TEST THE INTENTION OF CONGRESS, IT IS SUGGESTED IN THE
M.K.T. OPINION OF TODAY, POST, P. 323, IS WHETHER CONGRESS WAS WILLING
TO CRYSTALLIZE THE PROBLEM INTO "STATUTORY COMMANDS."  THE STATUTORY
COMMAND FOR WHICH DETERMINATION IS SOUGHT HERE IS THAT THE BOARD
EXERCISE ITS DISCRETION.  IN THE SAME OPINION, IT IS SAID, "THE COMMAND
OF THE ACT SHOULD BE EXPLICIT AND THE PURPOSE TO AFFORD A JUDICIAL
REMEDY PLAIN BEFORE AN OBLIGATION ENFORCIBLE IN THE COURTS SHOULD BE
IMPLIED."  HERE, CONGRESS HAS UNEQUIVOCALLY PROVIDED THAT "EMPLOYEES
SHALL HAVE THE RIGHT TO ORGANIZE AND BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES" CHOSEN BY THE MAJORITY OF EACH "CRAFT OR CLASS."  THE
SPECIAL COMPETENCE OF THE NATIONAL MEDIATION BOARD LIES IN THE FIELD OF
LABOR RELATIONS RATHER THAN IN THAT OF STATUTORY CONSTRUCTION.  OF
COURSE THE JUDICIARY DOES NOT MAKE THE ADMINISTRATIVE DETERMINATION. 
"THE FUNCTIONS OF THE COURTS CEASE WHEN IT IS ASCERTAINED THAT THE
FINDINGS OF THE COMMISSION MEET THE STATUTORY TEST."  SUNSHINE COAL CO.
V. ADKINS, 310 U.S. 381, 400.  LIKEWISE, THE NATIONAL MEDIATION BOARD
MAY BE CONCEDED DISCRETION TO MAKE ANY REASONABLE DETERMINATION OF THE
MEANING OF THE WORDS, "CRAFT OR CLASS."  CF. GRAY V. POWELL, 314 U.S.
402.  BY REQUIRING A PLAIN SANCTION FOR A JUDICIAL REMEDY, THE COURT
AUTHORIZES THE MEDIATION BOARD TO DETERMINE NOT ONLY QUESTIONS
JUDICIALLY FOUND TO BE COMMITTED TO ITS DISCRETION, AS IN GRAY V.
POWELL, SUPRA, BUT THE STATUTORY LIMITS OF ITS OWN POWERS AS WELL.  IT
SEEMS MORE CONSONANT WITH THE GENIUS OF OUR INSTITUTIONS  FN20  TO
ASSUME, NOT THAT THE PURPOSE TO APPLY A LEGAL SANCTION MUST BE PLAIN,
BUT THAT IN THE ABSENCE OF ANY EXPRESS PROVISION TO THE CONTRARY,
CONGRESS INTENDED THE GENERAL JUDICIAL AUTHORITY CONFERRED BY THE
JUDICIAL CODE TO BE AVAILABLE TO A UNION AND ITS MEMBERS AGGRIEVED BY
AN ADMINISTRATIVE ORDER PRESUMABLY IRRECONCILABLE WITH A STATUTORY
RIGHT SO EXPLICITLY FRAMED AS THE RIGHT TO BARGAIN THROUGH
REPRESENTATIVES OF THE EMPLOYEES' OWN CHOOSING.  FN21 

THE PETITIONERS ASSERT THEIR RIGHTS AS RIGHTS ARISING UNDER THE
RAILWAY LABOR ACT, WHICH IS STATED TO BE A LAW OF THE UNITED STATES
RELATING TO INTERSTATE COMMERCE.  IF THIS ALLEGATION IS CORRECT, AND WE
THINK IT IS, THERE IS JURISDICTION OF THE SUBJECT MATTER OF THE SUIT
UNDER JUDICIAL CODE, SEC. 24(8):  "THE DISTRICT COURTS SHALL HAVE
ORIGINAL JURISDICTION AS FOLLOWS: ...  EIGHTH.  OF ALL SUITS AND
PROCEEDINGS ARISING UNDER ANY LAW REGULATING COMMERCE."  THE GENERAL
PURPOSE OF THE ACT IS TO AVOID INTERRUPTION TO COMMERCE BY PROHIBITION
OF INTERFERENCE WITH THE EMPLOYEES' FREEDOM OF ASSOCIATION AND BY
PROVISION FOR COLLECTIVE BARGAINING TO SETTLE LABOR DISPUTES.  FN22
THIS REGULATES COMMERCE. 

THE RIGHT TO SELECT REPRESENTATIVES WITH WHOM CARRIERS MUST BARGAIN
WAS CREATED BY THE ACT AND THE REMEDY SOUGHT HERE ARISES UNDER THAT
LAW.  SINCE THE CAUSE OF ACTION "HAD ITS ORIGIN AND IS CONTROLLED BY"
THE RAILWAY LABOR ACT, IT ARISES UNDER IT.  PEYTON V. RAILWAY EXPRESS
AGENCY, 316 U.S. 350; MULFORD V. SMITH, 307 U.S. 38, 46; TURNER LUMBER
CO. V. CHICAGO, M. & ST. P. RY. CO., 271 U.S. 259, 261; LOUISVILLE &
NASHVILLE R. CO. V. RICE, 247 U.S. 201. 

SINCE THE COURT DECLINES FEDERAL JURISDICTION, IT IS USELESS TO
DISCUSS EITHER THE MERITS OR THE OTHER PROCEDURAL QUESTIONS SUCH AS
JURISDICTION IN EQUITY TO GRANT THE INJUNCTION REQUESTED, THE POWER TO
VACATE THE ORDER OF THE MEDIATION BOARD OR THE EFFECT OF THE NORRIS-LA
GUARDIA ACT. 

FN1  44 STAT. 577, AS AMENDED 48 STAT. 1185. 

FN2  FINDING 7 OF THE DISTRICT COURT SHOWS THE DISTRIBUTION OF
YARDMEN OF THE NEW YORK CENTRAL LINES BASED UPON UNION AFFILIATION, AS
FOLLOWS: 

"7.  THERE ARE APPROXIMATELY 6,087 YARDMEN EMPLOYED BY THE RAILROAD
COMPANY.  AT THE TIME THE BOARD'S SERVICES WERE INVOKED THE PLAINTIFF
SWITCHMEN'S UNION REPRESENTED THE YARDMEN IN ALL BUT NINE YARDS ON THE
NEW YORK CENTRAL - LINES WEST OF BUFFALO AND IN ALL YARDS ON THE
MICHIGAN CENTRAL WEST OF THE DETROIT RIVER, INCLUDING THE SOUTH BEND
TRANSFER CREWS.  THE DEFENDANT BROTHERHOOD REPRESENTED YARDMEN IN YARDS
ON THE MICHIGAN CENTRAL EAST OF THE DETROIT RIVER, IN NINE YARDS ON THE
NEW YORK CENTRAL - LINES WEST OF BUFFALO, AND ALL YARDMEN ON THE NEW
YORK CENTRAL - LINES EAST OF BUFFALO, THE TOLEDO AND OHIO CENTRAL, THE
BIG FOUR, AND THE BOSTON AND ALBANY; AND AT THAT TIME NO ONE QUESTIONED
THE RIGHT OF THE BROTHERHOOD TO REPRESENT THE YARDMEN EMPLOYED ON THE
FOUR LAST MENTIONED LINES." 

FN3  48 STAT. 1185, 1188-9, SEC. 2: 

"NINTH. IF ANY DISPUTE SHALL ARISE AMONG A CARRIER'S EMPLOYEES AS TO
WHO ARE THE REPRESENTATIVES OF SUCH EMPLOYEES DESIGNATED AND AUTHORIZED
IN ACCORDANCE WITH THE REQUIREMENTS OF THIS ACT, IT SHALL BE THE DUTY
OF THE MEDIATION BOARD, UPON REQUEST OF EITHER PARTY TO THE DISPUTE, TO
INVESTIGATE SUCH DISPUTE AND TO CERTIFY TO BOTH PARTIES, IN WRITING,
WITHIN THIRTY DAYS AFTER THE RECEIPT OF THE INVOCATION OF ITS SERVICES,
THE NAME OR NAMES OF THE INDIVIDUALS OR ORGANIZATIONS THAT HAVE BEEN
DESIGNATED AND AUTHORIZED TO REPRESENT THE EMPLOYEES INVOLVED IN THE
DISPUTE, AND CERTIFY THE SAME TO THE CARRIER.  UPON RECEIPT OF SUCH
CERTIFICATION THE CARRIER SHALL TREAT WITH THE REPRESENTATIVE SO
CERTIFIED AS THE REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES
OF THIS ACT.  IN SUCH AN INVESTIGATION, THE MEDIATION BOARD SHALL BE
AUTHORIZED TO TAKE A SECRET BALLOT OF THE EMPLOYEES INVOLVED, OR TO
UTILIZE ANY OTHER APPROPRIATE METHOD OF ASCERTAINING THE NAMES OF THEIR
DULY DESIGNATED AND AUTHORIZED REPRESENTATIVES IN SUCH MANNER AS SHALL
INSURE THE CHOICE OF REPRESENTATIVES BY THE EMPLOYEES WITHOUT
INTERFERENCE, INFLUENCE, OR COERCION EXERCISED BY THE CARRIER.  IN THE
CONDUCT OF ANY ELECTION FOR THE PURPOSES HEREIN INDICATED THE BOARD
SHALL DESIGNATE WHO MAY PARTICIPATE IN THE ELECTION AND ESTABLISH THE
RULES TO GOVERN THE ELECTION, OR MAY APPOINT A COMMITTEE OF THREE
NEUTRAL PERSONS WHO AFTER HEARING SHALL WITHIN TEN DAYS DESIGNATE THE
EMPLOYEES WHO MAY PARTICIPATE IN THE ELECTION.  THE BOARD SHALL HAVE
ACCESS TO AND HAVE POWER TO MAKE COPIES OF THE BOOKS AND RECORDS OF THE
CARRIERS TO OBTAIN AND UTILIZE SUCH INFORMATION AS MAY BE DEEMED
NECESSARY BY IT TO CARRY OUT THE PURPOSES AND PROVISIONS OF THIS
PARAGRAPH."  FN4  SWITCHMEN'S UNION V. NATIONAL MEDIATION BOARD, 135
F.2D 785, 796: 

"THE ARGUMENT WAS MADE TO THE CONGRESSIONAL COMMITTEES THAT THE
PRECISE LANGUAGE NOW UNDER CONSIDERATION WOULD BRING POSSIBLE
REPERCUSSION IN RAILWAY LABOR RELATIONS.  SPECIFIC AMENDMENTS WERE
PROPOSED WHICH WOULD HAVE ALLOWED THE DIVISION OF A CRAFT OR CLASS. 
CONGRESS WAS NOT PERSUADED THAT THE UNIFICATION PROCESS WAS NOT IN THE
BEST INTEREST OF EMPLOYEES AND CARRIERS.  IT IS FOR CONGRESS TO
DETERMINE POLICY.  OUR PROVINCE IS TO KEEP THE BOARD WITHIN THE
CONFINES OF THAT POLICY.  WE ARE OF THE OPINION THAT THE BOARD
CORRECTLY DETERMINED IT HAD NO DISCRETION TO DENY THE REQUEST OF A
MAJORITY OF THE YARDMEN EMPLOYED BY THE RAILROAD COMPANY TO APPOINT A
REPRESENTATIVE FOR THEIR CRAFT." 

FN5  48 STAT. 1185, 1186-7, SEC. 2: 

"(1) TO AVOID ANY INTERRUPTION TO COMMERCE OR TO THE OPERATION OF ANY
CARRIER ENGAGED THEREIN; (2) TO FORBID ANY LIMITATION UPON FREEDOM OF
ASSOCIATION AMONG EMPLOYEES OR ANY DENIAL, AS A CONDITION OF EMPLOYMENT
OR OTHERWISE, OF THE RIGHT OF EMPLOYEES TO JOIN A LABOR ORGANIZATION;
(3) TO PROVIDE FOR THE COMPLETE INDEPENDENCE OF CARRIERS AND OF
EMPLOYEES IN THE MATTER OF SELF-ORGANIZATION TO CARRY OUT THE PURPOSES
OF THIS ACT; (4) TO PROVIDE FOR THE PROMPT AND ORDERLY SETTLEMENT OF
ALL DISPUTES CONCERNING RATES OF PAY, RULES, OR WORKING CONDITIONS; (5)
TO PROVIDE FOR THE PROMPT AND ORDERLY SETTLEMENT OF ALL DISPUTES
GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION
OF AGREEMENTS COVERING RATES OF PAY, RULES, OR WORKING CONDITIONS." 

FN6  VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 553; TEXAS
& NEW ORLEANS R. CO. V. BROTHERHOOD OF CLERKS, 281 U.S. 548, 570. 

FN7  48 STAT. 1185, 1187, SEC. 2: 

"FOURTH.  EMPLOYEES SHALL HAVE THE RIGHT TO ORGANIZE AND BARGAIN
COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING.  THE
MAJORITY OF ANY CRAFT OR CLASS OF EMPLOYEES SHALL HAVE THE RIGHT TO
DETERMINE WHO SHALL BE THE REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE
PURPOSES OF THIS ACT.  NO CARRIER, ITS OFFICERS OR AGENTS, SHALL DENY
OR IN ANY WAY QUESTION THE RIGHT OF ITS EMPLOYEES TO JOIN, ORGANIZE, OR
ASSIST IN ORGANIZING THE LABOR ORGANIZATION OF THEIR CHOICE, AND IT
SHALL BE UNLAWFUL FOR ANY CARRIER TO INTERFERE IN ANY WAY WITH THE
ORGANIZATION OF ITS EMPLOYEES, OR TO USE THE FUNDS OF THE CARRIER IN
MAINTAINING OR ASSISTING OR CONTRIBUTING TO ANY LABOR ORGANIZATION,
LABOR REPRESENTATIVE, OR OTHER AGENCY OF COLLECTIVE BARGAINING, OR IN
PERFORMING ANY WORK THEREFOR, OR TO INFLUENCE OR COERCE EMPLOYEES IN AN
EFFORT TO INDUCE THEM TO JOIN OR REMAIN OR NOT TO JOIN OR REMAIN
MEMBERS OF ANY LABOR ORGANIZATION, OR TO DEDUCT FROM THE WAGES OF
EMPLOYEES ANY DUES, FEES, ASSESSMENTS, OR OTHER CONTRIBUTIONS PAYABLE
TO LABOR ORGANIZATIONS, OR TO COLLECT OR TO ASSIST IN THE COLLECTION OF
ANY SUCH DUES, FEES, ASSESSMENTS, OR OTHER CONTRIBUTIONS:  PROVIDED,
THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO PROHIBIT A CARRIER FROM
PERMITTING AN EMPLOYEE, INDIVIDUALLY, OR LOCAL REPRESENTATIVES OF
EMPLOYEES FROM CONFERRING WITH MANAGEMENT DURING WORKING HOURS WITHOUT
LOSS OF TIME, OR TO PROHIBIT A CARRIER FROM FURNISHING FREE
TRANSPORTATION TO ITS EMPLOYEES WHILE ENGAGED IN THE BUSINESS OF A
LABOR ORGANIZATION." 

FN8  ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 130;
SHANNAHAN V. UNITED STATES, 303 U.S. 596, 599. 

FN9  UNITED STATES V. GRIFFIN, 303 U.S. 226, 234; UNITED STATES V.
LOS ANGELES & SALT LAKE R. CO., 273 U.S. 299, 309-310. 

FN10  SEC. 3(M), (N), (O), (P). 

FN11  44 STAT. 577, 585, SEC. 9: 

"THIRD.  SUCH PETITION FOR THE IMPEACHMENT OR CONTESTING OF ANY AWARD
SO FILED SHALL BE ENTERTAINED BY THE COURT ONLY ON ONE OR MORE OF THE
FOLLOWING GROUNDS: 

"(A)  THAT THE AWARD PLAINLY DOES NOT CONFORM TO THE SUBSTANTIVE
REQUIREMENTS LAID DOWN BY THIS ACT FOR SUCH AWARDS, OR THAT THE
PROCEEDINGS WERE NOT SUBSTANTIALLY IN CONFORMITY WITH THIS ACT; ...  " 

THAT "PROCEEDING" HAS SUCH A MEANING IS STRONGLY INDICATED BY SEC. 7,
FIRST, WHICH READS AS FOLLOWS: 

"SEC. 7.  FIRST.  WHENEVER A CONTROVERSY SHALL ARISE BETWEEN A
CARRIER OR CARRIERS AND ITS OR THEIR EMPLOYEES WHICH IS NOT SETTLED
EITHER IN CONFERENCE BETWEEN REPRESENTATIVES OF THE PARTIES OR BY THE
APPROPRIATE ADJUSTMENT BOARD OR THROUGH MEDIATION, IN THE MANNER
PROVIDED IN THE PRECEDING SECTIONS, SUCH CONTROVERSY MAY, BY AGREEMENT
OF THE PARTIES TO SUCH CONTROVERSY, BE SUBMITTED TO THE ARBITRATION OF
A BOARD OF THREE (OR, IF THE PARTIES TO THE CONTROVERSY SO STIPULATE,
OF SIX) PERSONS:  ...  " 

A BINDING ARBITRATION BROUGHT ABOUT BY IMPROPERLY CHOSEN
REPRESENTATIVES WOULD BE FARCICAL. 

FN12  44 STAT. 577, 586-7, AS AMENDED BY 48 STAT. 1185, 1197, SEC.
7: 

"EMERGENCY BOARD.  SEC. 10.  IF A DISPUTE BETWEEN A CARRIER AND ITS
EMPLOYEES BE NOT ADJUSTED UNDER THE FOREGOING PROVISIONS OF THIS ACT
AND SHOULD, IN THE JUDGMENT OF THE MEDIATION BOARD, THREATEN
SUBSTANTIALLY TO INTERRUPT INTERSTATE COMMERCE TO A DEGREE SUCH AS TO
DEPRIVE ANY SECTION OF THE COUNTRY OF ESSENTIAL TRANSPORTATION SERVICE,
THE MEDIATION BOARD SHALL NOTIFY THE PRESIDENT, WHO MAY THEREUPON, IN
HIS DISCRETION, CREATE A BOARD TO INVESTIGATE AND REPORT RESPECTING
SUCH DISPUTE.  SUCH BOARD SHALL BE COMPOSED OF SUCH NUMBER OF PERSONS
AS TO THE PRESIDENT MAY SEEM DESIRABLE:  PROVIDED, HOWEVER, THAT NO
MEMBER APPOINTED SHALL BE PECUNIARILY OR OTHERWISE INTERESTED IN ANY
ORGANIZATION OF EMPLOYEES OR ANY CARRIER.  THE COMPENSATION OF THE
MEMBERS OF ANY SUCH BOARD SHALL BE FIXED BY THE PRESIDENT.  SUCH BOARD
SHALL BE CREATED SEPARATELY IN EACH INSTANCE AND IT SHALL INVESTIGATE
PROMPTLY THE FACTS AS TO THE DISPUTE AND MAKE A REPORT THEREON TO THE
PRESIDENT WITHIN THIRTY DAYS FROM THE DATE OF ITS CREATION." 

FN13  44 STAT. 577, 578, SEC. 2: 

"THIRD.  REPRESENTATIVES, FOR THE PURPOSES OF THIS ACT, SHALL BE
DESIGNATED BY THE RESPECTIVE PARTIES IN SUCH MANNER AS MAY BE PROVIDED
IN THEIR CORPORATE ORGANIZATION OR UNINCORPORATED ASSOCIATION, OR BY
OTHER MEANS OF COLLECTIVE ACTION, WITHOUT INTERFERENCE, INFLUENCE, OR
COERCION EXERCISED BY EITHER PARTY OVER THE SELF-ORGANIZATION OR
DESIGNATION OF REPRESENTATIVES BY THE OTHER." 

FN14  ID., 585, SEC. 9: 

"SECOND.  AN AWARD ACKNOWLEDGED AND FILED AS HEREIN PROVIDED SHALL BE
CONCLUSIVE ON THE PARTIES AS TO THE MERITS AND FACTS OF THE CONTROVERSY
SUBMITTED TO ARBITRATION, AND UNLESS, WITHIN TEN DAYS AFTER THE FILING
OF THE AWARD, A PETITION TO IMPEACH THE AWARD, ON THE GROUNDS
HEREINAFTER SET FORTH, SHALL BE FILED IN THE CLERK'S OFFICE OF THE
COURT IN WHICH THE AWARD HAS BEEN FILED, THE COURT SHALL ENTER JUDGMENT
ON THE AWARD, WHICH JUDGMENT SHALL BE FINAL AND CONCLUSIVE ON THE
PARTIES." 

FN15  OTHER COMPLETELY NEW SECTIONS WERE THE "GENERAL PURPOSES" OF
SEC. 2 AND SEC. 2, FOURTH, FIFTH, SEVENTH, EIGHTH AND TENTH.  BY TENTH
CRIMINAL SANCTIONS WERE APPLIED TO COMPEL CARRIER COMPLIANCE WITH THE
COMMANDS OF FOURTH, FIFTH, SEVENTH AND EIGHTH.  THESE SUBDIVISIONS WERE
CONCERNED WITH THE RIGHT OF EMPLOYEES TO ORGANIZE AND TO CHOOSE FREELY
THEIR REPRESENTATIVES. 

FN16  281 U.S. 548, 569: 

"THE ABSENCE OF PENALTY IS NOT CONTROLLING.  THE CREATION OF A LEGAL
RIGHT BY LANGUAGE SUITABLE TO THAT END DOES NOT REQUIRE FOR ITS
EFFECTIVENESS THE IMPOSITION OF STATUTORY PENALTIES.  MANY RIGHTS ARE
ENFORCED FOR WHICH NO STATUTORY PENALTIES ARE PROVIDED.  IN THE CASE OF
THE STATUTE IN QUESTION, THERE IS AN ABSENCE OF PENALTY, IN THE SENSE
OF SPECIALLY PRESCRIBED PUNISHMENT, WITH RESPECT TO THE ARBITRAL AWARDS
AND THE PROHIBITION OF CHANGE IN CONDITIONS PENDING THE INVESTIGATION
AND REPORT OF AN EMERGENCY BOARD, BUT IN EACH INSTANCE A LEGAL
OBLIGATION IS CREATED AND THE STATUTORY REQUIREMENTS ARE SUSCEPTIBLE OF
ENFORCEMENT BY PROCEEDINGS APPROPRIATE TO EACH.  THE SAME IS TRUE OF
THE PROHIBITION OF INTERFERENCE OR COERCION IN CONNECTION WITH THE
CHOICE OF REPRESENTATIVES.  THE RIGHT IS CREATED AND THE REMEDY
EXISTS.  MARBURY V. MADISON, 1 CRANCH 137, 162, 163." 

FN17  BROTHERHOOD OF RAILROAD TRAINMEN V. NATIONAL MEDIATION BOARD,
88 F.2D 757; NATIONAL FEDERATION OF RAILWAY WORKERS V. NATIONAL
MEDIATION BOARD, 110 F.2D 529; ORDER OF RAILWAY CONDUCTORS V. NATIONAL
MEDIATION BOARD, 113 F.2D 531.  SEE ALSO ASSOCIATION OF CLERICAL
EMPLOYEES V. RAILWAY CLERKS, 85 F.2D 152; BROTHERHOOD OF CLERKS V.
VIRGINIAN RY. CO., 125 F.2D 853; BROTHERHOOD OF LOCOMOTIVE FIREMEN &
ENGINEMEN V. KENAN, 87 F.2D 651; NASHVILLE, C. & ST. L. RY. V. RAILWAY
EMPLOYEES' DEPT., 93 F.2D 340; BROTHERHOOD OF CLERKS V. NASHVILLE, C. &
ST. L. RY. CO., 94 F.2D 97. 

FN18  ANNUAL REPORT OF THE NATIONAL MEDIATION BOARD, 1938, P. 5: 

"THE TWO CASES DECIDED BY THE COURTS CLARIFYING THE DISCRETION VESTED
IN THE NATIONAL MEDIATION BOARD IN CONNECTION WITH REPRESENTATION
DISPUTES BOTH AROSE ON THE NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY,
AND BOTH WERE DECIDED BY THE UNITED STATES CIRCUIT COURT OF APPEALS FOR
THE SIXTH CIRCUIT.  THE FIRST CASE (NASHVILLE, C. & ST. L. RY. V.
RAILWAY EMPLOYEES DEPARTMENT, A.F. OF L., 93 F.2D 340) SETTLED THE
ISSUE CONCERNING THE RIGHT OF FURLOUGHED EMPLOYEES RETAINING AN
EMPLOYMENT STATUS TO VOTE IN REPRESENTATION ELECTIONS.  THE SECOND
DECISION (BROTHERHOOD OF CLERKS V. NASHVILLE, C. & ST. L. RY. CO., 94
F.2D 97) HELD THAT THE NATIONAL MEDIATION BOARD, WHEN ESTABLISHING
ELIGIBLE LISTS OF VOTERS AND CONDUCTING ELECTIONS IN ORDER TO DETERMINE
THE REPRESENTATIVE OF EMPLOYEES OF A CARRIER BY CRAFT OR CLASS MUST DO
SO WITH DUE REGARD FOR ALL OF THE FACTS, HISTORICAL AND OTHERWISE,
WHICH HAVE OPERATED TO SHAPE THE CRAFT OR CLASS OF EMPLOYEES ON THE
CARRIER CONCERNED AS WELL AS ON RAILROADS GENERALLY.  BOTH DECISIONS
ARE VERY HELPFUL TO THE BOARD IN THAT THEY SERVE TO SETTLE ISSUES
WHICH, IN THE PAST, HAVE FREQUENTLY ARISEN TO TROUBLE THE ORDERLY AND
PROMPT ADJUSTMENT OF DISPUTES OVER REPRESENTATION BETWEEN DIFFERENT
FACTIONS AMONG EMPLOYEES." 

ID., 1942, P. 7: 

"DURING THE 8-YEAR EXPERIENCE OF THE BOARD UNDER THE REPRESENTATION
PROVISIONS OF THE LAW IT IS GRATIFIED TO BE ABLE TO REPORT THAT IN ALL
BUT A FEW INSTANCES ITS ACTIONS IN INTERPRETING AND APPLYING THESE
PROVISIONS OF THE LAW HAVE BEEN SUSTAINED BY THE COURTS.  IN ALL
INSTANCES, HOWEVER, THE BOARD HAS BENEFITED BY COURT REVIEW AND
ANALYSIS OF ITS ACTIONS AND THE FACTS OF THE DISPUTES.  THE COURT
RULINGS AND OPINIONS HAVE CLARIFIED AND SETTLED MANY DISPUTED POINTS OF
THE LAW AND THE BOARD'S AUTHORITY.  THUS THEY CONSTITUTE A VALUABLE
CONTRIBUTION IN THE SOLUTION OF LABOR DISPUTES." 

FN19  COMPARE SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381,
391, WHERE THIS COURT TOOK COGNIZANCE OF A SUIT SEEKING JUDICIAL REVIEW
OF ADMINISTRATIVE ACTION WITHOUT SUCH AUTHORITY IN THE STATUTE UNDER
ATTACK.  SEE SEC. 6, BITUMINOUS COAL ACT, 50 STAT. 85.  REVIEW WAS HAD
UNDER JUDICIAL CODE SEC. 24(1) AND 28 U.S.C. SEC. 380(A). 

FN20  AN ERRONEOUS ORDER OF THE SECRETARY OF THE INTERIOR WAS
SIMILARLY CANCELED WHEN, WITHOUT STATUTORY AUTHORITY, HE STRUCK THE
NAME OF AN ENROLLEE FROM THE ROLLS OF AN INDIAN NATION.  THIS COURT
SAID: "BUT, AS HAS BEEN AFFIRMED BY THIS COURT IN FORMER DECISIONS,
THERE IS NO PLACE IN OUR CONSTITUTIONAL SYSTEM FOR THE EXERCISE OF
ARBITRARY POWER, AND IF THE SECRETARY HAS EXCEEDED THE AUTHORITY
CONFERRED UPON HIM BY LAW, THEN THERE IS POWER IN THE COURTS TO RESTORE
THE STATUS OF THE PARTIES AGGRIEVED BY SUCH UNWARRANTED ACTION." 
GARFIELD V. GOLDSBY, 211 U.S. 249, 262.  CF. NESS V. FISHER, 223 U.S.
683, 694.  COMPARE ICKES V. FOX, 300 U.S. 82; WEST V. STANDARD OIL CO.,
278 U.S. 200, 220; WORK V. LOUISIANA, 269 U.S. 250, 254. 

FN21  WHEN CONGRESS HAS INTENDED TO BAR ACCESS TO THE COURTS, IN
WHOLE OR IN PART, IT HAS UNDERSTOOD HOW TO EXPRESS ITS DETERMINATION. 
EMERGENCY PRICE CONTROL ACT OF 1942, SEC. 204, 56 STAT. 23; CHAP. 335,
23 STAT. 350; SEC. 4(B), 44 STAT. 828. 

FN22  48 STAT. 1185, 1187, SEC. 2: 

"FIRST.  IT SHALL BE THE DUTY OF ALL CARRIERS, THEIR OFFICERS,
AGENTS, AND EMPLOYEES TO EXERT EVERY REASONABLE EFFORT TO MAKE AND
MAINTAIN AGREEMENTS CONCERNING RATES OF PAY, RULES, AND WORKING
CONDITIONS, AND TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF THE
APPLICATION OF SUCH AGREEMENTS OR OTHERWISE, IN ORDER TO AVOID ANY
INTERRUPTION TO COMMERCE OR TO THE OPERATION OF ANY CARRIER GROWING OUT
OF ANY DISPUTE BETWEEN THE CARRIER AND THE EMPLOYEES THEREOF."  SEE
NOTE 5. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON JOIN IN THIS DISSENT. 
..END :



















GENERAL COMMITTEE V. M.-K.-T. R. CO., 320 U.S. 323 


NO. 23.  ARGUED OCTOBER 14, 1943.  - DECIDED NOVEMBER 22, 1943.  - 132
F.2D 91, REVERSED. 


BETWEEN A LABOR ORGANIZATION WHICH WAS THE DULY DESIGNATED BARGAINING
REPRESENTATIVE FOR THE CRAFT OF ENGINEERS EMPLOYED BY CERTAIN CARRIERS,
AND ANOTHER WHICH WAS THE DULY DESIGNATED BARGAINING REPRESENTATIVE FOR
THE CRAFT OF FIREMEN EMPLOYED ON THE SAME LINES, A DISPUTE AROSE
RELATIVE TO THE CALLING OF MEN FOR EMERGENCY SERVICE AS ENGINEERS. 
EFFORTS TO SETTLE THE DISPUTE HAVING FAILED, THE MATTER WAS SUBMITTED
TO THE NATIONAL MEDIATION BOARD, AND A MEDIATION AGREEMENT BETWEEN THE
FIREMEN AND THE CARRIERS RESULTED.  THE ENGINEERS THEN BROUGHT AN
ACTION IN THE FEDERAL DISTRICT COURT FOR A DECLARATORY JUDGMENT THAT
THE AGREEMENT WAS IN VIOLATION OF THE RAILWAY LABOR ACT AND THAT THE
ENGINEERS SHOULD BE DECLARED TO BE THE SOLE REPRESENTATIVE OF THE CRAFT
OF ENGINEERS WITH THE EXCLUSIVE RIGHT TO BARGAIN FOR THEM.  THE
CARRIERS IN THEIR ANSWER PRAYED THAT THE COURT DECLARE THE RESPECTIVE
RIGHTS OF THE PARTIES.  THE FIREMEN, THOUGH CHALLENGING THE
JURISDICTION OF THE COURT, IN THE ALTERNATIVE ASKED THAT THE AGREEMENT
BE DECLARED VOID.  HELD THAT THE ISSUES TENDERED WERE NOT JUSTICIABLE
AND THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION TO RESOLVE THE
CONTROVERSY.  P. 327. 

1.  THE CASE INVOLVES NO RIGHT WHICH UNDER THE RAILWAY LABOR ACT IS
ENFORCIBLE BY THE COURTS; AND THEREFORE THE ACTION IS NOT ONE "ARISING
UNDER ANY LAW REGULATING COMMERCE" AND NOT WITHIN THE ORIGINAL
JURISDICTION OF THE DISTRICT COURT UNDER JUD.  CODE SEC. 24(8).  P.
337. 

IN VIEW OF THE PATTERN OF THE RAILWAY LABOR ACT AND ITS HISTORY, THE
COMMAND OF THE ACT SHOULD BE EXPLICIT AND THE PURPOSE TO AFFORD A
JUDICIAL REMEDY PLAIN BEFORE AN OBLIGATION ENFORCIBLE IN THE COURTS
SHOULD BE IMPLIED.  P. 337. 

2.  THE DISTRICT COURT WAS WITHOUT POWER TO ENTER A DECLARATORY
DECREE FOR THE BENEFIT OF ANY OF THE PARTIES.  P. 337. 

GENERAL COMMITTEE OF ADJUSTMENT OF THE BROTHERHOOD OF LOCOMOTIVE
ENGINEERS FOR THE MISSOURI-KANSAS-TEXAS RAILROAD V. MISSOURI-KANSAS
TEXAS RAILROAD CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 319 U.S. 736, TO REVIEW A JUDGMENT WHICH MODIFIED AND
AFFIRMED A DECREE DISMISSING THE COMPLAINT IN AN ACTION FOR A
DECLARATORY JUDGMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES A DISPUTE UNDER THE RAILWAY LABOR ACT CONCERNING
THE AUTHORITY OF TWO RAILROAD BROTHERHOODS TO REPRESENT CERTAIN
EMPLOYEES IN COLLECTIVE BARGAINING WITH THE DEFENDANT-CARRIERS.  THE
PETITIONER (HEREINAFTER CALLED THE ENGINEERS) IS A COMMITTEE OF THE
BROTHERHOOD OF LOCOMOTIVE ENGINEERS WHICH HAS BEEN AND IS THE DULY
DESIGNATED BARGAINING REPRESENTATIVE FOR THE CRAFT OF ENGINEERS
EMPLOYED BY THE CARRIERS.  THE THIRD-PARTY DEFENDANT (HEREINAFTER
CALLED THE FIREMEN) IS A COMMITTEE OF THE BROTHERHOOD OF LOCOMOTIVE
FIREMEN AND ENGINEMEN WHICH HAS BEEN AND IS THE DULY DESIGNATED
BARGAINING REPRESENTATIVE FOR THE CRAFT OF FIREMEN ON THE SAME LINES. 
EACH CRAFT HAS LONG HAD AN AGREEMENT WITH THE CARRIERS CONCERNING
RULES, RATES OF PAY, AND WORKING CONDITIONS.  THE AGREEMENT WITH THE
ENGINEERS STATES THAT THE RIGHT TO MAKE AND INTERPRET CONTRACTS, RULES,
RATES AND WORKING AGREEMENTS FOR LOCOMOTIVE ENGINEERS IS VESTED IN THAT
COMMITTEE.  THE AGREEMENT WITH THE FIREMEN CONTAINS A SIMILAR PROVISION
CONCERNING MEMBERS OF THAT CRAFT.  BOTH AGREEMENTS ALSO CONTAIN RULES
GOVERNING THE DEMOTION OF ENGINEERS TO BE FIREMEN, THE PROMOTION OF
FIREMEN TO BE ENGINEERS, AND RETURN OF DEMOTED ENGINEERS TO THEIR
FORMER WORK.  FN1  FOR MANY YEARS THE TWO BROTHERHOODS HAD AN AGREEMENT
WHICH ESTABLISHED RULES AND REGULATIONS ON THESE SUBJECTS AND WHICH
PROVIDED MACHINERY FOR RESOLVING DISPUTES WHICH MIGHT ARISE BETWEEN
THEM.  THIS AGREEMENT WAS CANCELLED IN 1927.  THE PRESENT DISPUTE AROSE
SINCE THAT TIME AND RELATES TO THE CALLING OF ENGINEERS FOR EMERGENCY
SERVICE.  IN GENERAL THE ENGINEERS AND THE CARRIERS HAD A WORKING
ARRANGEMENT PROVIDING (1) THAT, EXCEPTING SMITHVILLE, TEXAS, THE SENIOR
AVAILABLE DEMOTED ENGINEER WHOSE HOME TERMINAL WAS AT THE PLACE WHERE
THE SERVICE WAS REQUIRED OR THE MAN ASSIGNED TO THE PARTICULAR RUN AS
FIREMAN, IF HE HAD GREATER SENIORITY AS ENGINEER, WOULD BE CHOSEN WHEN
IT WAS NECESSARY TO CALL AN ENGINEER FOR EMERGENCY SERVICE; (2) THAT
THE REGULATION OF THE ENGINEERS' WORKING LISTS WAS TO BE HANDLED BY THE
ENGINEERS' LOCAL CHAIRMAN, NOT BY THE MANAGEMENT; AND (3) THAT AT
SMITHVILLE, EMERGENCY WORK WOULD BE PERFORMED BY ADVANCING THE
ASSIGNMENT OF ENGINEERS IN THE SO-CALLED "POOL,"  FN2  INSTEAD OF
CALLING IN EMERGENCY ENGINEERS.  THESE ARRANGEMENTS WERE NOT
SATISFACTORY TO THE FIREMEN.  AFTER PROTEST TO THE CARRIERS AND AFTER A
FAILURE OF THE BROTHERHOODS TO RESOLVE THEIR DISPUTE THE MATTER WAS
SUBMITTED TO THE NATIONAL MEDIATION BOARD FOR MEDIATION.  THE ENGINEERS
DID NOT PARTICIPATE.  THE FIREMEN AND THE CARRIERS ENTERED INTO THE
MEDIATION AGREEMENT OF DECEMBER 12, 1940, THE VALIDITY OF WHICH IS HERE
CHALLENGED.  THE EFFECT OF THAT AGREEMENT WAS IN GENERAL TO ELIMINATE
THE PREFERENCE PREVIOUSLY GIVEN TO ENGINEERS OF THE HOME TERMINAL AND
THE SPECIAL ARRANGEMENT AT SMITHVILLE IN FAVOR OF THE POOL ENGINEERS. 
IT ALSO CHANGED THE PRACTICE RESPECTING THE HANDLING OF THE ENGINEERS'
WORKING LISTS - THEREAFTER THE ASSIGNMENTS WOULD BE HANDLED BY THE
MANAGEMENT ASSISTED BY THE LOCAL CHAIRMEN OF THE TWO GROUPS.  AFTER
MAKING THE AGREEMENT THE CARRIERS GAVE NOTICE TO THE ENGINEERS THAT
THEY WERE CANCELLING PREVIOUS ARRANGEMENTS WITH THAT BROTHERHOOD. 

THE ENGINEERS THEN BROUGHT THIS ACTION FOR A DECLARATORY JUDGMENT (48
STAT. 955, 28 U.S.C. SEC. 400) THAT THE AGREEMENT OF DECEMBER 12, 1940,
WAS IN VIOLATION OF THE RAILWAY LABOR ACT (44 STAT. 577, 48 STAT. 1185,
45 U.S.C. SEC. 151) AND THAT THE ENGINEERS SHOULD BE DECLARED TO BE THE
SOLE REPRESENTATIVE OF THE LOCOMOTIVE ENGINEERS WITH THE EXCLUSIVE
RIGHT TO BARGAIN FOR THEM.  THE CARRIERS IN THEIR ANSWER PRAYED THAT
THE COURT DECLARE THE RESPECTIVE RIGHTS OF THE PARTIES.  AND THE
FIREMEN, THOUGH CHALLENGING THE JURISDICTION OF THE COURT, IN THE
ALTERNATIVE ASKED THAT THE AGREEMENT OF DECEMBER 12, 1940, BE DECLARED
VALID.  THE DISTRICT COURT DISMISSED THE PETITION, HOLDING THAT THE
CARRIERS HAD A RIGHT TO CONTRACT WITH EITHER OF THE CRAFTS WITH
REFERENCE TO THE PROBLEMS IN QUESTION.  THE CIRCUIT COURT OF APPEALS
HELD THAT BOTH CRAFTS WERE INTERESTED IN THE SUBJECT MATTER OF THE
DISPUTE, THAT NEITHER CRAFT HAD AN EXCLUSIVE RIGHT TO BARGAIN
CONCERNING THE MATTERS IN ISSUE, THAT THE REPRESENTATIVES OF BOTH
CRAFTS SHOULD CONFER AND IF POSSIBLE AGREE, AND THAT THE AGREEMENT OF
DECEMBER 12, 1940, MIGHT BE TERMINATED BY THE CARRIERS IF NOT
ACQUIESCED IN BY THE ENGINEERS.  132 F.2D 91. 

THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE GRANTED
BECAUSE OF THE IMPORTANCE OF THE PROBLEMS RAISED BY THE ASSUMPTION OF
JURISDICTION OVER SUCH CONTROVERSIES BY THE FEDERAL COURTS. 

THE BULK OF THE ARGUMENT HERE RELATES TO THE MERITS OF THE DISPUTE. 
BUT WE DO NOT INTIMATE AN OPINION CONCERNING THEM.  FOR WE ARE OF THE
VIEW THAT THE DISTRICT COURT WAS WITHOUT POWER TO RESOLVE THE
CONTROVERSY. 

IT IS OUR VIEW THAT THE ISSUES TENDERED BY THE PRESENT LITIGATION ARE
NOT JUSTICIABLE - THAT IS TO SAY THAT CONGRESS BY THIS ACT HAS
FORECLOSED RESORT TO THE COURTS FOR ENFORCEMENT OF THE CLAIMS ASSERTED
BY THE PARTIES. 

THE HISTORY OF THIS LEGISLATION HAS BEEN TRACED IN EARLIER CASES
COMING BEFORE THIS COURT.  SEE PENNSYLVANIA R. CO. V. RAILROAD LABOR
BOARD, 261 U.S. 72; PENNSYLVANIA SYSTEM FEDERATION V. PENNSYLVANIA R.
CO., 267 U.S. 203; TEXAS & NEW ORLEANS R. CO. V. BROTHERHOOD OF CLERKS,
281 U.S. 548; VIRGINIAN RY. CO. V. SYSTEM FEDERATION NO. 40, 300 U.S.
515.  THE PRESENT ACT IS THE PRODUCT OF SOME FIFTY YEARS OF EVOLUTION. 
FN3  FOR MANY YEARS THE ONLY SANCTIONS UNDER THE VARIOUS CONGRESSIONAL
ENACTMENTS IN THIS FIELD WERE PUBLICITY AND PUBLIC OPINION.  A
CONSPICUOUS EXAMPLE CONCERNS THE RAILROAD LABOR BOARD, CONSTITUTED
UNDER THE TRANSPORTATION ACT OF 1920.  IT HAD IMPORTANT FUNCTIONS TO
PERFORM.  BUT THIS COURT HELD IN THE FEDERATION NO. 90 CASE (267 U.S.
203) THAT THE BOARD'S DECISIONS WERE NOT SUPPORTED BY ANY LEGAL
SANCTIONS.  THE PARTIES TO THE LABOR CONTROVERSIES COVERED BY THE ACT
WERE NOT "IN ANY WAY TO BE FORCED INTO COMPLIANCE WITH THE STATUTE OR
WITH THE JUDGMENTS PRONOUNCED BY THE LABOR BOARD, EXCEPT THROUGH THE
EFFECT OF ADVERSE PUBLIC OPINION."  ID., P. 216.  THE 1926 ACT (44
STAT. 577) MADE A BASIC CHANGE IN THE PATTERN OF THE RAILWAY LABOR
LEGISLATION WHICH HAD PRECEDED.  FN4  CONCILIATORY MEANS WERE ADHERED
TO; PROVISIONS FOR MEDIATION AND ARBITRATION WERE ADOPTED; AND THE USE
OF THAT MACHINERY ON A VOLUNTARY BASIS WAS ENCOURAGED.  FN5  BUT
CONGRESS ALSO SUPPORTED ITS POLICY WITH THE IMPOSITION OF SOME RULES OF
CONDUCT FOR BREACH OF WHICH THE COURTS AFFORD A SANCTION.  THUS
CONGRESS STATED IN SEC. 2, THIRD OF THE 1926 ACT THAT THE CHOICE BY
EMPLOYEES OF THEIR COLLECTIVE BARGAINING REPRESENTATIVES SHOULD BE FREE
FROM THE CARRIERS' COERCION AND INFLUENCE.  THAT "DEFINITE STATUTORY
PROHIBITION OF CONDUCT WHICH WOULD THWART THE DECLARED PURPOSE" OF THE
ACT WAS HELD BY THIS COURT IN THE CLERKS CASE TO BE ENFORCIBLE IN AN
APPROPRIATE SUIT.  281 U.S. 548, 568.  AS STATED BY CHIEF JUSTICE
HUGHES IN THAT CASE: 

"FREEDOM OF CHOICE IN THE SELECTION OF REPRESENTATIVES ON EACH SIDE
OF THE DISPUTE IS THE ESSENTIAL FOUNDATION OF THE STATUTORY SCHEME. 
ALL THE PROCEEDINGS LOOKING TO AMICABLE ADJUSTMENTS AND TO AGREEMENTS
FOR ARBITRATION OF DISPUTES, THE ENTIRE POLICY OF THE ACT, MUST DEPEND
FOR SUCCESS ON THE UNCOERCED ACTION OF EACH PARTY THROUGH ITS OWN
REPRESENTATIVES TO THE END THAT AGREEMENTS SATISFACTORY TO BOTH MAY BE
REACHED AND THE PEACE ESSENTIAL TO THE UNINTERRUPTED SERVICE OF THE
INSTRUMENTALITIES OF INTERSTATE COMMERCE MAY BE MAINTAINED.  THERE IS
NO IMPAIRMENT OF THE VOLUNTARY CHARACTER OF ARRANGEMENTS FOR THE
ADJUSTMENT OF DISPUTES IN THE IMPOSITION OF A LEGAL OBLIGATION NOT TO
INTERFERE WITH THE FREE CHOICE OF THOSE WHO ARE TO MAKE SUCH
ADJUSTMENTS.  ON THE CONTRARY, IT IS OF THE ESSENCE OF A VOLUNTARY
SCHEME, IF IT IS TO ACCOMPLISH ITS PURPOSE, THAT THIS LIBERTY SHOULD BE
SAFEGUARDED.  THE DEFINITE PROHIBITION WHICH CONGRESS INSERTED IN THE
ACT CAN NOT THEREFORE BE OVERRIDDEN IN THE VIEW THAT CONGRESS INTENDED
IT TO BE IGNORED.  AS THE PROHIBITION WAS APPROPRIATE TO THE AIM OF
CONGRESS, AND IS CAPABLE OF ENFORCEMENT, THE CONCLUSION MUST BE THAT
ENFORCEMENT WAS CONTEMPLATED."  281 U.S. P. 569.  THUS WHAT HAD LONG
BEEN A "RIGHT" OF EMPLOYEES ENFORCIBLE ONLY BY STRIKES AND OTHER
METHODS OF INDUSTRIAL WARFARE EMERGED AS A "RIGHT" ENFORCIBLE BY
JUDICIAL DECREE.  THE RIGHT OF COLLECTIVE BARGAINING WAS NO LONGER
DEPENDENT ON ECONOMIC POWER ALONE. 

FURTHER PROTECTION WAS ACCORDED THAT RIGHT BY THE AMENDMENTS WHICH
WERE ADDED IN 1934.  THUS SEC. 2, NINTH PROVIDED MACHINERY
STRENGTHENING THE REPRESENTATION PROVISIONS OF THE ACT.  H. REP. NO.
1944, 73D CONG., 2D SESS., P. 2.  THAT NEW PROVISION GAVE THE NATIONAL
MEDIATION BOARD AN ADJUDICATORY FUNCTION IN THE SETTLEMENT OF
REPRESENTATION DISPUTES.  IT PROVIDED FOR A REFERENCE TO THAT BOARD OF
REPRESENTATION DISPUTES ARISING AMONG A CARRIER'S EMPLOYEES.  IT
CHARGED THE BOARD WITH THE "DUTY" UPON THE REQUEST OF EITHER PARTY TO
THE DISPUTE TO INVESTIGATE THE CONTROVERSY AND TO CERTIFY THE NAME OR
NAMES OF THE DESIGNATED AND AUTHORIZED REPRESENTATIVES OF THE
EMPLOYEES.  AND CONGRESS ADDED THE COMMAND THAT "UPON RECEIPT OF SUCH
CERTIFICATION THE CARRIER SHALL TREAT WITH THE REPRESENTATIVE SO
CERTIFIED AS THE REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES
OF THIS ACT."  IT WAS THAT SPECIFIC COMMAND FOR DISOBEDIENCE OF WHICH
THIS COURT HELD IN THE VIRGINIAN RY. CO. CASE (300 U.S. 515) THAT
COURTS WOULD PROVIDE A REMEDY.  THAT RESULT WAS REACHED OVER THE
OBJECTION THAT SEC. 2, NINTH STATED A POLICY BUT CREATED NO RIGHTS OR
DUTIES ENFORCIBLE BY JUDICIAL DECREE.  THIS COURT REVIEWED THE HISTORY
OF SEC. 2, NINTH - ITS PURPOSE AND MEANING.  IT CONCLUDED THAT THE
PROVISION IN QUESTION WAS "MANDATORY IN FORM AND CAPABLE OF ENFORCEMENT
BY JUDICIAL PROCESS."  ID., P. 545.  IT OBSERVED THAT IF THE PROVISION
WERE CONSTRUED AS BEING PRECATORY ONLY, ITS ADDITION TO THE ACT WAS
"PURPOSELESS"; THAT ONLY A REQUIREMENT OF "SOME AFFIRMATIVE ACT ON THE
PART OF THE EMPLOYER" WOULD ADD TO THE 1926 ACT.  ID., P. 547.  THE
COURT ACCORDINGLY CONCLUDED THAT THE COMMAND OF SEC. 2, NINTH COULD NOT
HAVE BEEN INTENDED TO BE WITHOUT LEGAL SANCTION. 

OTHER SIMILAR STATUTORY COMMANDS OR PROHIBITIONS WERE PROVIDED BY
CONGRESS.  THE RIGHT OF THE MAJORITY OF A CRAFT OR CLASS TO DETERMINE
WHO SHALL BE THE CRAFT OR CLASS REPRESENTATIVE (SEC. 2, FOURTH); THE
RIGHT OF THE EMPLOYEES TO DESIGNATE AS THEIR REPRESENTATIVE ONE WHO IS
NOT AN EMPLOYEE OF THE CARRIER (SEC. 2, THIRD); THE PROHIBITION AGAINST
"YELLOW DOG" CONTRACTS (SEC. 2, FIFTH) ARE ILLUSTRATIVE.  FN6
MOREOVER, ADMINISTRATIVE MACHINERY WAS PROVIDED FOR THE ADJUDICATION OF
CERTAIN CONTROVERSIES.  CONGRESS ESTABLISHED THE NATIONAL RAILROAD
ADJUSTMENT BOARD FOR THE SETTLEMENT OF SPECIFIC TYPES OF DISPUTES OR
GRIEVANCES BETWEEN EMPLOYEES AND THE CARRIER.  SEC. 3.  AND CONGRESS
GAVE THE COURTS JURISDICTION TO ENTERTAIN SUITS BASED ON THE AWARDS OF
THE ADJUSTMENT BOARD.  SEC. 3, FIRST (P).  THAT FEATURE OF THE ACT, AS
WELL AS SEC. 2, NINTH WHICH PLACED ON THE MEDIATION BOARD DEFINITE
ADJUDICATORY FUNCTIONS, TRANSFERRED CERTAIN SEGMENTS OF RAILWAY LABOR
PROBLEMS FROM THE REALM OF CONCILIATION AND MEDIATION TO TRIBUNALS OF
THE LAW.  THE NEW ADMINISTRATIVE MACHINERY PLUS THE STATUTORY COMMANDS
AND PROHIBITIONS MARKED A GREAT ADVANCE IN SUPPLEMENTING NEGOTIATION
AND SELF-HELP WITH SPECIFIC LEGAL SANCTIONS IN ENFORCEMENT OF THE
CONGRESSIONAL POLICY. 

BUT IT IS APPARENT ON THE FACE OF THE ACT THAT WHILE CONGRESS DEALT
WITH THIS SUBJECT COMPREHENSIVELY, IT LEFT THE SOLUTION OF ONLY SOME OF
THOSE PROBLEMS TO THE COURTS OR TO ADMINISTRATIVE AGENCIES.  IT
ENTRUSTED LARGE SEGMENTS OF THIS FIELD TO THE VOLUNTARY PROCESSES OF
CONCILIATION, MEDIATION, AND ARBITRATION.  THUS BY SEC. 5, FIRST,
CONGRESS PROVIDED THAT EITHER PARTY TO A DISPUTE MIGHT INVOKE THE
SERVICES OF THE MEDIATION BOARD IN A "DISPUTE CONCERNING CHANGES IN
RATES OF PAY, RULES, OR WORKING CONDITIONS NOT ADJUSTED BY THE PARTIES
IN CONFERENCE" AND ANY OTHER "DISPUTE NOT REFERABLE" TO THE ADJUSTMENT
BOARD AND "NOT ADJUSTED IN CONFERENCE BETWEEN THE PARTIES OR WHERE
CONFERENCES ARE REFUSED."  FN7  BEYOND THE MEDIATION MACHINERY
FURNISHED BY THE BOARD LIES ARBITRATION.  SEC. 5, FIRST AND THIRD, SEC.
7.  IN CASE BOTH FAIL THERE IS THE EMERGENCY BOARD WHICH MAY BE
ESTABLISHED BY THE PRESIDENT UNDER SEC. 10.  IN SHORT, CONGRESS BY THIS
LEGISLATION HAS FREELY EMPLOYED THE TRADITIONAL INSTRUMENTS OF
MEDIATION, CONCILIATION AND ARBITRATION.  THOSE INSTRUMENTS, IN
ADDITION TO THE AVAILABLE ECONOMIC WEAPONS, REMAIN UNCHANGED IN LARGE
AREAS OF THIS RAILWAY LABOR FIELD.  ON ONLY CERTAIN PHASES OF THIS
CONTROVERSIAL SUBJECT HAS CONGRESS UTILIZED ADMINISTRATIVE OR JUDICIAL
MACHINERY AND INVOKED THE COMPULSIONS OF THE LAW.  CONGRESS WAS DEALING
WITH A SUBJECT HIGHLY CHARGED WITH EMOTION.  ITS APPROACH HAS NOT ONLY
BEEN SLOW; IT HAS BEEN PIECEMEAL.  CONGRESS HAS BEEN HIGHLY SELECTIVE
IN ITS USE OF LEGAL MACHINERY.  THE DELICACY OF THESE PROBLEMS HAS MADE
IT HESITANT TO GO TOO FAST OR TOO FAR.  THE INFERENCE IS STRONG THAT
CONGRESS INTENDED TO GO NO FURTHER IN ITS USE OF THE PROCESSES OF
ADJUDICATION AND LITIGATION THAN THE EXPRESS PROVISIONS OF THE ACT
INDICATE.    THAT HISTORY HAS A SPECIAL CLAIM HERE.  IT MUST BE KEPT IN
MIND IN ANALYZING A BILL OF COMPLAINT WHICH, LIKE THE PRESENT ONE,
SEEKS TO STATE A CAUSE OF ACTION UNDER THE RAILWAY LABOR ACT AND ASKS
THAT JUDICIAL POWER BE EXERTED IN ENFORCEMENT OF AN OBLIGATION WHICH IT
IS CLAIMED CONGRESS HAS CREATED. 

THE ENGINEERS ASSERT THAT THE CARRIERS HAD NO RIGHT UNDER THE ACT TO
NEGOTIATE WITH THE FIREMEN ON THE SUBJECT OF EMERGENCY ENGINEERS AND
THAT THE MEDIATION AGREEMENT OF DECEMBER 12, 1940, IS THEREFORE VOID. 
THEY RELY ON SEC. 2, FOURTH OF THE ACT AND ON SEC. 2, FIRST AND NINTH. 
FN8 SEC. 2, FOURTH STATES THAT "EMPLOYEES SHALL HAVE THE RIGHT TO
ORGANIZE AND BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING."  BUT THAT GREAT RIGHT, WHICH CONGRESS IN 1926 AT LAST
SUPPORTED WITH LEGAL SANCTIONS, IS NOT CHALLENGED HERE.  THE ENGINEERS
AND THE FIREMEN ARE THE COLLECTIVE BARGAINING AGENTS FOR THEIR
RESPECTIVE CRAFTS AND ARE ACKNOWLEDGED AS SUCH.  THEIR AUTHORITY SO TO
ACT IS NOT CHALLENGED.  NOR IS IT APPARENT HOW THE MAJORITY RULE
PROVISION OF SEC. 2, FOURTH IS INVOLVED HERE.  IT STATES THAT "THE
MAJORITY OF ANY CRAFT OR CLASS OF EMPLOYEES SHALL HAVE THE RIGHT TO
DETERMINE WHO SHALL BE THE REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE
PURPOSES OF THIS ACT."  BUT CONCEDEDLY THE ENGINEERS REPRESENT A
MAJORITY OF THE CRAFT OF ENGINEERS AND THE FIREMEN A MAJORITY OF THE
FIREMEN'S CRAFT.  THE PRINCIPLE OF MAJORITY REPRESENTATION IS NOT
CHALLENGED.  NOR DOES SEC. 2, SECOND MAKE JUSTICIABLE WHAT OTHERWISE IS
NOT.  IT PROVIDES THAT "ALL DISPUTES BETWEEN A CARRIER OR CARRIERS AND
ITS OR THEIR EMPLOYEES SHALL BE CONSIDERED, AND, IF POSSIBLE, DECIDED,
WITH ALL EXPEDITION, IN CONFERENCE BETWEEN REPRESENTATIVES DESIGNATED
AND AUTHORIZED SO TO CONFER, RESPECTIVELY, BY THE CARRIER OR CARRIERS
AND BY THE EMPLOYEES THEREOF INTERESTED IN THE DISPUTE."  AS WE HAVE
ALREADY POINTED OUT, SEC. 2, NINTH, AFTER PROVIDING FOR A CERTIFICATION
BY THE MEDIATION BOARD OF THE PARTICULAR CRAFT OR CLASS REPRESENTATIVE,
STATES THAT "THE CARRIER SHALL TREAT WITH THE REPRESENTATIVE SO
CERTIFIED AS THE REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES
OF THIS ACT."  THAT COMMAND OF SEC. 2, NINTH WAS ENFORCED IN THE
VIRGINIAN RY. CO. CASE.  BUT SEC. 2, SECOND, LIKE SEC. 2, FIRST,  FN9
MERELY STATES THE POLICY WHICH THOSE OTHER PROVISIONS BUTTRESS WITH
MORE PARTICULARIZED COMMANDS. 

IT IS TRUE THAT THE PRESENT CONTROVERSY GROWS OUT OF AN APPLICATION
OF THE PRINCIPLES OF COLLECTIVE BARGAINING AND MAJORITY RULE.  IT
INVOLVES A JURISDICTIONAL DISPUTE - AN ASSERTED OVERLAPPING OF THE
INTERESTS OF TWO CRAFTS.  IT NECESSITATES A DETERMINATION OF THE POINT
WHERE THE AUTHORITY OF ONE CRAFT ENDS AND THE OTHER BEGINS OR OF THE
ZONES WHERE THEY HAVE JOINT AUTHORITY.  IN THE CLERKS CASE AND IN THE
VIRGINIAN RY. CO. CASE THE COURT WAS ASKED TO ENFORCE STATUTORY
COMMANDS WHICH WERE EXPLICIT AND UNEQUIVOCAL.  BUT THE SITUATION HERE
IS DIFFERENT.  CONGRESS DID NOT ATTEMPT TO MAKE ANY CODIFICATION OF
RULES GOVERNING THESE JURISDICTIONAL CONTROVERSIES.  IT DID NOT
UNDERTAKE A STATEMENT OF THE VARIOUS PRINCIPLES OF AGENCY WHICH WERE TO
GOVERN THE SOLUTION OF DISPUTES ARISING FROM AN OVERLAPPING OF THE
INTERESTS OF TWO OR MORE CRAFTS.  IT ESTABLISHED THE GENERAL PRINCIPLES
OF COLLECTIVE BARGAINING AND APPLIED A COMMAND OR PROHIBITION
ENFORCIBLE BY JUDICIAL DECREE TO ONLY SOME OF ITS PHASES.  THE
CONTENTION, HOWEVER, IS THAT THE RULE WHICH CONGRESS INTENDED TO GOVERN
CAN BE FOUND FROM THE IMPLICATIONS OF THE ACT.  THUS IT IS ARGUED THAT
THE REASONS WHICH SUPPORT THE HOLDING IN THE VIRGINIAN RY. CO. CASE
THAT THE RIGHT OF MAJORITY CRAFT REPRESENTATION IS EXCLUSIVE ALSO
SUGGEST THAT CONGRESS INTENDED TO WRITE INTO THE RAILWAY LABOR ACT A
RESTRICTION ON THE RULES AND WORKING CONDITIONS CONCERNING WHICH THE
CRAFT HAS THE RIGHT TO CONTRACT.  IT IS POINTED OUT THAT IF THE
JURISDICTION OF A CRAFT WITHIN WHICH THE EXCLUSIVE RIGHT MAY BE
EXERCISED IS NOT LIMITED, THEN DISPUTES BETWEEN UNIONS MAY DEFEAT THE
EXPRESS PURPOSES OF THE ACT.  IN THAT CONNECTION REFERENCE IS MADE TO
THE STATEMENT OF THIS COURT IN THE VIRGINIAN RY. CO. CASE (300 U.S. P.
548) THAT THE ACT IMPOSES UPON THE CARRIER "THE AFFIRMATIVE DUTY TO
TREAT ONLY WITH THE TRUE REPRESENTATIVE, AND HENCE THE NEGATIVE DUTY TO
TREAT WITH NO OTHER."  THAT EXPRESSES THE BASIC PHILOSOPHY OF SEC. 2,
NINTH.  BUT THE DECISION DOES NOT IMPLY, AS IS ARGUED HERE, THAT EVERY
REPRESENTATION PROBLEM ARISING UNDER THE ACT PRESENTS A JUSTICIABLE
CONTROVERSY.  IT DOES NOT SUGGEST THAT THE RESPECTIVE DOMAINS FOR TWO
OR MORE OVERLAPPING CRAFTS SHOULD BE LITIGATED IN THE FEDERAL DISTRICT
COURTS. 

IT SEEMS TO US PLAIN THAT WHEN CONGRESS CAME TO THE QUESTION OF THESE
JURISDICTIONAL DISPUTES, IT CHOSE NOT TO LEAVE THEIR SOLUTION TO THE
COURTS.  AS WE HAVE ALREADY POINTED OUT, CONGRESS LEFT THE PRESENT
PROBLEMS FAR BACK IN THE PENUMBRA OF THOSE FEW PRINCIPLES WHICH IT
CODIFIED.  MOREOVER, IT SELECTED DIFFERENT MACHINERY FOR THEIR
SOLUTION.  CONGRESS DID NOT LEAVE THE PROBLEM OF INTER-UNION DISPUTES
UNTOUCHED.  IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF SEC. 2, NINTH
THAT IT WAS DESIGNED NOT ONLY TO HELP FREE THE UNIONS FROM THE
INFLUENCE, COERCION AND CONTROL OF THE CARRIERS BUT ALSO TO RESOLVE A
WIDE RANGE OF JURISDICTIONAL DISPUTES BETWEEN UNIONS OR BETWEEN GROUPS
OF EMPLOYEES.  FN10  H. REP. NO. 1944, SUPRA, P. 2; S. REP. NO. 1065,
73D CONG., 2D SESS., P. 3.  HOWEVER WIDE MAY BE THE RANGE OF
JURISDICTIONAL DISPUTES EMBRACED WITHIN SEC. 2, NINTH, FN11  CONGRESS
DID NOT SELECT THE COURTS TO RESOLVE THEM.  TO THE CONTRARY, IT
FASHIONED AN ADMINISTRATIVE REMEDY AND LEFT THAT GROUP OF DISPUTES TO
THE NATIONAL MEDIATION BOARD.  IF THE PRESENT DISPUTE FALLS WITHIN SEC.
2, NINTH, THE ADMINISTRATIVE REMEDY IS EXCLUSIVE.  FN12  IF A NARROWER
VIEW OF SEC. 2, NINTH IS TAKEN, IT IS DIFFICULT TO BELIEVE THAT
CONGRESS SAVED SOME JURISDICTIONAL DISPUTES FOR THE MEDIATION BOARD AND
SENT THE PARTIES INTO THE FEDERAL COURTS TO RESOLVE THE OTHERS.  RATHER
THE CONCLUSION IS IRRESISTIBLE THAT CONGRESS CARVED OUT OF THE FIELD OF
CONCILIATION, MEDIATION AND ARBITRATION ONLY THE SELECT LIST OF
PROBLEMS WHICH IT WAS READY TO PLACE IN THE ADJUDICATORY CHANNEL.  ALL
ELSE IT LEFT TO THOSE VOLUNTARY PROCESSES WHOSE USE CONGRESS HAD LONG
ENCOURAGED TO PROTECT THESE ARTERIES OF INTERSTATE COMMERCE FROM
INDUSTRIAL STRIFE.  THE CONCEPT OF MEDIATION IS THE ANTITHESIS OF
JUSTICIABILITY. 

IN VIEW OF THE PATTERN OF THIS LEGISLATION AND ITS HISTORY THE
COMMAND OF THE ACT SHOULD BE EXPLICIT AND THE PURPOSE TO AFFORD A
JUDICIAL REMEDY PLAIN BEFORE AN OBLIGATION ENFORCIBLE IN THE COURTS
SHOULD BE IMPLIED.  UNLESS THAT TEST IS MET THE ASSUMPTION MUST BE THAT
CONGRESS FASHIONED A REMEDY AVAILABLE ONLY IN OTHER TRIBUNALS.  THERE
MAY BE AS A RESULT MANY AREAS IN THIS FIELD WHERE NEITHER THE
ADMINISTRATIVE NOR THE JUDICIAL FUNCTION CAN BE UTILIZED.  BUT THAT IS
ONLY TO BE EXPECTED WHERE CONGRESS STILL PLACES SUCH GREAT RELIANCE ON
THE VOLUNTARY PROCESS OF CONCILIATION, MEDIATION AND ARBITRATION.  SEE
H. REP. NO. 1944, 73D CONG., 2D SESS., P. 2.  COURTS SHOULD NOT RUSH IN
WHERE CONGRESS HAS NOT CHOSEN TO TREAD. 

WE ARE HERE CONCERNED SOLELY WITH LEGAL RIGHTS UNDER THIS FEDERAL ACT
WHICH ARE ENFORCIBLE BY COURTS.  FOR UNLESS SUCH A RIGHT IS FOUND IT IS
APPARENT THAT THIS IS NOT A SUIT OR PROCEEDING "ARISING UNDER ANY LAW
REGULATING COMMERCE" OVER WHICH THE DISTRICT COURT HAD ORIGINAL
JURISDICTION BY REASON OF SEC. 24(8) OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 41(8).  CF. PUERTO RICO V. RUSSELL & CO., 288 U.S. 476, 483; GULLY
V. FIRST NATIONAL BANK, 299 U.S. 109; PEYTON V. RAILWAY EXPRESS AGENCY,
316 U.S. 350, 352.  WHEN A COURT HAS JURISDICTION IT HAS OF COURSE
"AUTHORITY TO DECIDE THE CASE EITHER WAY."  THE FAIR V. KOHLER DIE CO.,
228 U.S. 22, 25.  BUT IN THIS CASE NO DECLARATORY DECREE SHOULD HAVE
BEEN ENTERED FOR THE BENEFIT OF ANY OF THE PARTIES.  ANY DECISION ON
THE MERITS WOULD INVOLVE THE GRANTING OF JUDICIAL REMEDIES WHICH
CONGRESS CHOSE NOT TO CONFER.  REVERSED. 

FN1  GENERALLY SPEAKING, EMPLOYEES HIRED UNDER COLLECTIVE BARGAINING
AGREEMENTS AS FIREMEN IMMEDIATELY BEGIN TO ACQUIRE SENIORITY AS SUCH. 
AFTER A CERTAIN PERIOD FIREMEN ARE REQUIRED TO TAKE AN ENGINEER'S
EXAMINATION.  VACANT POSITIONS AS ENGINEERS ARE FILLED FROM THE LIST OF
THOSE WHO HAVE PASSED THE QUALIFYING TESTS.  WHEN IT IS NECESSARY TO
REDUCE THE FORCE OF WORKING ENGINEERS THOSE WITH THE LOWEST SENIORITY
ARE DROPPED AND THEY RESUME THEIR POSITIONS AS FIREMEN IN ACCORDANCE
WITH THE SENIORITY IN THAT CRAFT.  AS A RESULT, FIREMEN WITH A LOWER
SENIORITY ARE MOVED DOWN THE LADDER OF JOBS.  THUS THE MOST JUNIOR
FIREMEN ARE DEPRIVED OF WORK AND FURLOUGHED UNTIL THEIR SERVICES ARE
NEEDED.  WHEN A VACANCY OCCURS IN THE ENGINEERS' RANKS OR WHEN THE WORK
OF ENGINEERS INCREASES, ALL MOVE UP THE LADDER OF JOBS AGAIN. 

FN2  ENGINEERS ARE GENERALLY ASSIGNED IN ORDER OF SENIORITY TO
REGULAR RUNS (BOTH PASSENGER AND FREIGHT), THEN TO POOL FREIGHT SERVICE
(WHICH ROTATES IRREGULAR RUNS AMONG THE POOL MEMBERS ON A FIRST IN
FIRST OUT BASIS), AND THEN TO EXTRA BOARDS OF ENGINEERS FROM WHICH
ASSIGNMENTS ARE MADE AS POSITIONS ARE AVAILABLE.  IF NO ENGINEER IN
THOSE CATEGORIES IS AVAILABLE, THE SENIOR AVAILABLE QUALIFIED ENGINEER
WORKING AS A FIREMAN IS CALLED AS AN "EMERGENCY" ENGINEER. 

FN3  THE FIRST OF SEVEN STATUTES ENACTED DURING THIS PERIOD WAS THE
ARBITRATION ACT OF 1888, 25 STAT. 501.  THIS ACT PROVIDED FOR THE
VOLUNTARY ARBITRATION OF DISPUTES AND AUTHORIZED THE PRESIDENT TO SET
UP INVESTIGATING COMMITTEES.  IT WAS SUPERSEDED IN 1898 BY THE ERDMAN
ACT (30 STAT. 424) WHICH PROVIDED MACHINERY FOR ARBITRATION AND ALSO
INTRODUCED FOR THE FIRST TIME THE POLICY OF MEDIATION.  THE MEDIATORS
WERE THE CHAIRMAN OF THE INTERSTATE COMMERCE COMMISSION AND THE UNITED
STATES COMMISSIONER OF LABOR.  NEXT CAME THE NEWLANDS ACT OF 1913(38
STAT. 103) WHICH ESTABLISHED A PERMANENT BOARD OF MEDIATION AND
CONCILIATION.  UNDER BOTH THE ERDMAN AND NEWLANDS ACTS, MEDIATION WAS
TO BE EMPLOYED FIRST, AND UPON FAILURE OF THAT THE MEDIATORS WERE TO
ATTEMPT TO HAVE THE PARTIES ARBITRATE.  IN 1916 CONGRESS PASSED THE
ADAMSON ACT (39 STAT. 721) IN SETTLEMENT OF A DISPUTE OVER THE EIGHT
HOUR DAY.  THAT ACT PROVIDED FOR AN EIGHT-HOUR DAY FOR TRAIN OPERATORS
AND A COMMISSION TO ENFORCE IT.  UPON RETURN OF THE RAILROADS TO
PRIVATE OWNERSHIP, THE ESCH-CUMMINS LAW WAS PASSED.  SEE TITLE III OF
THE TRANSPORTATION ACT OF 1920, 41STAT.  456.  THIS ACT DIFFERED FROM
THE EARLIER LEGISLATION BY PROVIDING FOR PUBLIC REPRESENTATION ON A
NEWLY CREATED RAILROAD LABOR BOARD, BY PERMITTING THE BOARD TO
INVESTIGATE ALL DISPUTES OF ITS OWN INITIATIVE, AND BY PLACING THE
PRIMARY BURDEN OF SETTLEMENT OF DISPUTES ON DIRECT NEGOTIATIONS BETWEEN
THE PARTIES.  IN 1926 CONGRESS PASSED THE FIRST RAILWAY LABOR ACT (44
STAT. 577) WHICH WAS AMENDED IN 1934, 48 STAT. 1185.  SEE ALDERMAN, THE
HISTORY OF FEDERAL LEGISLATION DEALING WITH MACHINERY FOR SETTLING
DISPUTES CONCERNING WAGES AND WORKING CONDITIONS OF EMPLOYEES OF
INTERSTATE RAILROADS (1938); THE RAILWAY LABOR ACT AND THE NATIONAL
MEDIATION BOARD (1940), PP. 7-8, 67-76; FISHER, INDUSTRIAL DISPUTES
(1940), PP. 154-86; JOHNSON, GOVERNMENT REGULATION OF TRANSPORTATION
(1938), PP. 190-206; PARMELEE, THE MODERN RAILWAY (1940), PP. 420-35;
SPENCER, THE NATIONAL RAILROAD ADJUSTMENT BOARD (1938), PP. 1-16;
WITTE, THE GOVERNMENT IN LABOR DISPUTES (1932), PP. 238-44; WOLF, THE
RAILROAD LABOR BOARD (1927), PP. 1-13; GARRISON, THE NATIONAL RAILROAD
ADJUSTMENT BOARD:  A UNIQUE ADMINISTRATIVE AGENCY, 46 YALE L.J. 567. 

FN4  THE RAILWAY LABOR ACT AND THE NATIONAL MEDIATION BOARD (1940),
PP. 1-8. 

FN5  S. REP. NO. 222, 69TH CONG., 1ST SESS., P. 4. 

FN6  CRIMINAL PENALTIES WERE ADDED BY SEC. 2, TENTH FOR THE WILFUL
VIOLATION OF CERTAIN PROVISIONS OF THE ACT INCLUDING THE THREE JUST
MENTIONED. 

FN7  THE MEDIATION BOARD ALSO HAS POWER OF INTERPRETATION OF
MEDIATION AGREEMENTS.  SEC. 5, SECOND.  IT LIKEWISE HAS DUTIES WITH
RESPECT TO THE ARBITRATION OF DISPUTES.  SEE SEC. 5, THIRD.  MEDIATION
IS THE BOARD'S "MOST IMPORTANT TASK."  EIGHTH ANNUAL REPORT, NATIONAL
MEDIATION BOARD (1942) P. 4. 

FN8  RESPONDENTS IN SUPPORT OF THEIR PRAYERS FOR DECLARATORY RELIEF
RELY NOT ONLY ON THE IMPLICATIONS FROM THESE AND OTHER SECTIONS OF THE
ACT BUT ALSO ON THE PROVISO CLAUSE OF SEC. 1, FIFTH TO THE EFFECT "THAT
NO OCCUPATIONAL CLASSIFICATION MADE BY ORDER OF THE INTERSTATE COMMERCE
COMMISSION SHALL BE CONSTRUED TO DEFINE THE CRAFTS ACCORDING TO WHICH
RAILWAY EMPLOYEES MAY BE ORGANIZED BY THEIR VOLUNTARY ACTION, NOR SHALL
THE JURISDICTION OR POWERS OF SUCH EMPLOYEE ORGANIZATIONS BE REGARDED
AS IN ANY WAY LIMITED OR DEFINED BY THE PROVISIONS OF THIS ACT OR BY
THE ORDERS OF THE COMMISSION." 

FN9  SEC. 2, FIRST PROVIDES:  "IT SHALL BE THE DUTY OF ALL CARRIERS,
THEIR OFFICERS, AGENTS, AND EMPLOYEES TO EXERT EVERY REASONABLE EFFORT
TO MAKE AND MAINTAIN AGREEMENTS CONCERNING RATES OF PAY, RULES, AND
WORKING CONDITIONS, AND TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF
THE APPLICATION OF SUCH AGREEMENTS OR OTHERWISE, IN ORDER TO AVOID ANY
INTERRUPTION TO COMMERCE OR TO THE OPERATION OF ANY CARRIER GROWING OUT
OF ANY DISPUTE BETWEEN THE CARRIER AND THE EMPLOYEES THEREOF."    FN10
THIS IS MADE CLEAR BY COMMISSIONER EASTMAN, THE DRAFTSMAN OF THE 1934
AMENDMENTS, IN HIS TESTIMONY AT THE HEARINGS.  SEE HEARINGS, COMMITTEE
ON INTERSTATE AND FOREIGN COMMERCE, HOUSE OF REPRESENTATIVES, 73D
CONG., 2D SESS., ON H.R. 7650, PP. 39-41, 45, 57-58, 59.  TIVES, 

FN11  IT IS APPARENTLY THE VIEW OF THE NATIONAL MEDIATION BOARD THAT
SEC. 2, NINTH WAS DESIGNED TO COVER ONLY THOSE DISPUTES ENTAILING AN
ELECTION BY EMPLOYEES OF THEIR REPRESENTATIVES.  SEE BROTHERHOOD OF
RAILROAD TRAINMEN V. NATIONAL MEDIATION BOARD, 135 F.2D 780, 782.  IN
AN ELECTION CASE THE BOARD MAY HAVE TO MAKE A PRELIMINARY DETERMINATION
AS TO THE ELIGIBILITY OF VOTERS INVOLVING THE TYPE OF PROBLEM PRESENTED
HERE.  SEE BROTHERHOOD OF RAILROAD TRAINMEN V. NATIONAL MEDIATION
BOARD, 88 F.2D 757, DEALING WITH THE QUESTION WHETHER BRAKEMEN HAVING
SENIORITY AS CONDUCTORS COULD VOTE IN THE CONDUCTORS' ELECTION. 

FN12  WHETHER JUDICIAL POWER MAY EVER BE EXERTED TO REQUIRE THE
MEDIATION BOARD TO EXERCISE THE "DUTY" IMPOSED UPON IT UNDER SEC. 2,
NINTH AND, IF SO, THE TYPE OR TYPES OF SITUATIONS IN WHICH IT MAY BE
INVOKED PRESENT QUESTIONS NOT INVOLVED HERE. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE ROBERTS AND MR. JUSTICE REED ARE OF THE VIEW THAT THE
COURT SHOULD ENTERTAIN JURISDICTION OF THE PRESENT CONTROVERSY FOR THE
REASONS SET OUT IN THE DISSENT IN SWITCHMEN'S UNION V. NATIONAL
MEDIATION BOARD, ANTE, P. 307. 
..END :
















GENERAL COMMITTEE V. SOU. PAC. CO., 320 U.S. 338 


ARGUED OCTOBER 14, 15, 1943.  - DECIDED NOVEMBER 22, 1943.  - 132 F.2D
194, REVERSED. 


UPON THE AUTHORITY OF GENERAL COMMITTEE OF ADJUSTMENT V. MISSOURI
KANSAS-TEXAS R. CO., ANTE, P. 323, AND SWITCHMEN'S UNION V. NATIONAL
MEDIATION BOARD, ANTE, P. 297, HELD THAT THE QUESTIONS IN THIS CASE -
ARISING OUT OF A SO-CALLED JURISDICTIONAL CONTROVERSY BETWEEN LABOR
UNIONS - ARE NOT JUSTICIABLE ISSUES UNDER THE RAILWAY LABOR ACT AND THE
DISTRICT COURT WAS WITHOUT POWER TO RESOLVE THEM.  P. 343. 

GENERAL COMMITTEE OF ADJUSTMENT OF THE BROTHERHOOD OF LOCOMOTIVE
ENGINEERS FOR THE PACIFIC LINES OF SOUTHERN PACIFIC CO. V. SOUTHERN
PACIFIC CO. ET AL. 

NO. 27.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT* . 

*TOGETHER WITH NO. 41, GENERAL GRIEVANCE COMMITTEE OF THE BROTHERHOOD
OF LOCOMOTIVE FIREMEN AND ENGINEMEN V. GENERAL COMMITTEE OF ADJUSTMENT
OF THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS FOR THE PACIFIC LINES OF
SOUTHERN PACIFIC CO. ET AL., ALSO ON CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 319 U.S. 736, ON CROSS-PETITIONS TO REVIEW A JUDGMENT
WHICH MODIFIED AND AFFIRMED A DECREE DETERMINING ON THE MERITS A SUIT
FOR A DECLARATORY JUDGMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO GENERAL COMMITTEE OF ADJUSTMENT V.
MISSOURI-KANSAS-TEXAS R. CO., ANTE, P. 323, AND SWITCHMEN'S UNION V.
NATIONAL MEDIATION BOARD, ANTE, P. 297.  THEY ARE HERE ON A PETITION
AND ON A CROSSPETITION FOR WRITS OF CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE NINTH CIRCUIT.  NO. 41, THE CROSS-PETITION, INVOLVES A
DISPUTE BETWEEN THE COLLECTIVE BARGAINING REPRESENTATIVES OF THE
LOCOMOTIVE ENGINEERS AND OF THE LOCOMOTIVE FIREMEN ON THE PACIFIC LINES
OF THE SOUTHERN PACIFIC CO. THE CONTROVERSY INVOLVES THE SAME BASIC
QUESTION AS IS PRESENT IN THE MISSOURI-KANSAS-TEXAS R. CO. CASE.  THE
COMMITTEE FOR THE ENGINEERS (HEREINAFTER CALLED THE ENGINEERS) BROUGHT
THIS ACTION FOR A DECLARATORY JUDGMENT THAT PROVISIONS OF A JUNE, 1939
AGREEMENT BETWEEN THE CARRIER AND THE COMMITTEE FOR THE FIREMEN
(HEREINAFTER CALLED THE FIREMEN) CONCERNING THE DEMOTION OF ENGINEERS
TO FIREMEN AND THE CALLING OF FIREMEN FOR SERVICE AS EMERGENCY
ENGINEERS WERE INVALID UNDER THE RAILWAY LABOR ACT.  THE COURTS BELOW
UNDERTOOK TO RESOLVE THE CONTROVERSY.  SEE 132 F.2D 194, 202-206.  FOR
THE REASONS STATED IN THE MISSOURI-KANSAS-TEXAS R. CO. CASE WE THINK
THAT THE QUESTIONS ARE NOT JUSTICIABLE ISSUES UNDER THE RAILWAY LABOR
ACT. 

THE QUESTION PRESENTED IN NO. 27 IS RELATED TO THE QUESTIONS IN THE
OTHER TWO CASES.  IN THE SUIT BROUGHT BY THE ENGINEERS (NO. 41) A
DECLARATORY JUDGMENT WAS ALSO ASKED THAT ARTICLE 51, SEC. 1 OF THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE CARRIER AND THE FIREMEN WAS
INVALID UNDER THE RAILWAY LABOR ACT.  THAT SECTION PROVIDES:  "THE
RIGHT OF ANY ENGINEER, FIREMAN, HOSTLER OR HOSTLER HELPER TO HAVE THE
REGULARLY CONSTITUTED COMMITTEE OF HIS ORGANIZATION REPRESENT HIM IN
THE HANDLING OF HIS GRIEVANCES, IN ACCORDANCE WITH THE LAWS OF HIS
ORGANIZATION AND UNDER THE RECOGNIZED INTERPRETATION OF THE GENERAL
COMMITTEE MAKING THE SCHEDULE INVOLVED, IS CONCEDED." 

THE QUESTION WHETHER THE ENGINEERS WERE THE EXCLUSIVE REPRESENTATIVES
OF ENGINEERS IN THE HANDLING OF THEIR INDIVIDUAL GRIEVANCES WAS THE
SUBJECT OF DISPUTE BY THE ENGINEERS WITH THIS CARRIER AND ALSO WITH THE
FIREMEN.  IT WAS ONE OF SEVERAL SUBJECTS ON WHICH THE FIREMEN HAD A
STRIKE BALLOT TAKEN IN 1937.  FOLLOWING THE VOTE TO STRIKE, THE
PRESIDENT APPOINTED AN EMERGENCY BOARD  FN1  UNDER SEC. 10 OF THE ACT
TO INVESTIGATE AND REPORT ON THIS AND OTHER DISPUTES.  THE BOARD
REPORTED IN 1937.  THE DISPUTE HAS CONTINUED TO DATE. 

THE ENGINEERS AND THE FIREMEN ARE THE MAJORITY REPRESENTATIVES OF
THEIR RESPECTIVE CRAFTS UNDER THE ACT.  THE ENGINEERS CONTEND THAT THE
FIREMEN HAVE NO RIGHT TO REPRESENT MEN WORKING AS ENGINEERS IN THE
HANDLING OF INDIVIDUAL GRIEVANCES INVOLVING AN INTERPRETATION OF THE
COLLECTIVE BARGAINING AGREEMENT WHICH THE ENGINEERS NEGOTIATED.  THEIR
POSITION IS THAT UNDER THE ACT THEY ARE THE EXCLUSIVE REPRESENTATIVE OF
THE INDIVIDUAL ENGINEER IN THAT CLASS OF DISPUTES WHICH HE HAS WITH THE
CARRIER AS WELL AS THE EXCLUSIVE REPRESENTATIVE OF THE CRAFT FOR
PURPOSES OF COLLECTIVE BARGAINING.  THE DISTRICT COURT REFUSED TO
DECLARE THAT THE INCLUSION OF THE WORD "ENGINEER" IN ARTICLE 51, SEC. 1
OF THE AGREEMENT WAS UNLAWFUL UNDER THE ACT.  THE CIRCUIT COURT OF
APPEALS AFFIRMED THAT JUDGMENT.  132 F.2D 194-202. 

THE ENGINEERS PLACE THEIR CHIEF RELIANCE ON THOSE PROVISIONS OF SEC.
2, FOURTH WHICH STATE:  (1) THAT EMPLOYEES "SHALL HAVE THE RIGHT TO
ORGANIZE AND BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING"; AND (2) THAT THE "MAJORITY OF ANY CRAFT OR CLASS OF
EMPLOYEES SHALL HAVE THE RIGHT TO DETERMINE WHO SHALL BE THE
REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES OF THIS ACT." 
AND IT IS POINTED OUT THAT BY REASON OF SEC. 2, EIGHTH THE PROVISIONS
OF SEC. 2, FOURTH BECOME A PART OF EACH CONTRACT OF EMPLOYMENT.  SOME
SUPPORT IS ALSO SOUGHT FROM SEC. 2, SECOND AND SIXTH.  THE FORMER
PROVIDES THAT "ALL DISPUTES" BETWEEN A CARRIER AND ITS EMPLOYEES SHALL
BE CONSIDERED IN CONFERENCE BETWEEN REPRESENTATIVES OF THE PARTIES. 
THE LATTER PROVISION SAYS THAT IN CASE OF A DISPUTE AS TO GRIEVANCES
"IT SHALL BE THE DUTY OF THE DESIGNATED REPRESENTATIVE" OF THE CARRIER
AND OF THE EMPLOYEES TO SPECIFY A TIME AND PLACE FOR A CONFERENCE. 
FROM THESE PROVISIONS IT IS ARGUED THAT THE COLLECTIVE BARGAINING
REPRESENTATIVE OF A CRAFT BECOMES THE EXCLUSIVE REPRESENTATIVE FOR ALL
PURPOSES OF THE ACT - THE PROTECTION OF THE INDIVIDUAL'S AS WELL AS THE
CRAFT'S INTERESTS.  ON THE OTHER HAND, THE CARRIER AND THE FIREMEN
CONTEND THAT THE ACT LIMITS THE EXCLUSIVE REPRESENTATION OF THE
COLLECTIVE BARGAINING AGENT TO THE INTERESTS OF THE CRAFT.  THEY
CONTEND THAT THIS IS THE TRUE MEANING OF SEC. 2, FOURTH.  THEY ALSO
RELY ON SEC. 3, FIRST (I) WHICH STATES THAT PRIOR TO A REFERENCE OF
DISPUTES BETWEEN EMPLOYEES AND CARRIERS TO THE ADJUSTMENT BOARD THEY
"SHALL BE HANDLED IN THE USUAL MANNER UP TO AND INCLUDING THE CHIEF
OPERATING OFFICER OF THE CARRIER DESIGNATED TO HANDLE SUCH DISPUTES." 
THEY CLAIM THAT "USUAL MANNER" MEANS THE PRIOR PRACTICE AND THAT THAT
SHOWS A UNIFORM ACCEPTANCE OF THE RIGHT OF THE AGGRIEVED EMPLOYEE TO
SELECT HIS OWN REPRESENTATIVE.  THEY POINT OUT THAT SEC. 2, THIRD AND
FOURTH PROHIBIT THE CARRIER FROM INFLUENCING EMPLOYEES IN THEIR CHOICE
OF REPRESENTATIVES.  THE ARGUMENT IS THAT A CONTRACT BY THE CARRIER
WITH THE ENGINEERS GIVING THE LATTER THE EXCLUSIVE RIGHT TO REPRESENT
ENGINEERS IN THE PRESENTATION OF THEIR INDIVIDUAL CLAIMS WOULD IN
EFFECT COERCE ALL ENGINEERS INTO JOINING THAT UNION IN VIOLATION OF
SEC. 2, THIRD AND FOURTH. 

THE PARTIES BASE THEIR RESPECTIVE ARGUMENTS NOT ONLY ON THE LANGUAGE
OF THE ACT AND ITS LEGISLATIVE HISTORY BUT ALSO ON VARIOUS TRADE UNION
PRACTICES AND ANALOGOUS PROBLEMS ARISING UNDER THE NATIONAL LABOR
RELATIONS ACT.  FROM THESE VARIOUS MATERIALS EACH SEEKS TO PROVE THAT
CONGRESS HAS FASHIONED A FEDERAL RULE (ENFORCIBLE IN THE COURTS)
CONCERNING THE AUTHORITY OF COLLECTIVE BARGAINING AGENTS TO REPRESENT
VARIOUS CLASSES OF EMPLOYEES ON THEIR INDIVIDUAL GRIEVANCES.  FN2 ALL
OF THESE WOULD BE RELEVANT DATA FOR CONSTRUCTION OF THE ACT IF THE
COURTS HAD BEEN ENTRUSTED WITH THE TASK OF RESOLVING THIS TYPE OF
CONTROVERSY.  BUT WE DO NOT THINK THEY WERE. 

WE HAVE HERE NO QUESTION INVOLVING THE REPRESENTATION OF INDIVIDUAL
EMPLOYEES BEFORE THE NATIONAL RAILROAD ADJUSTMENT BOARD.  FN3  WE ARE
CONCERNED ONLY WITH A PROBLEM OF REPRESENTATION OF EMPLOYEES BEFORE THE
CARRIERS ON CERTAIN TYPES OF GRIEVANCES  FN4  WHICH, THOUGH AFFECTING
INDIVIDUALS, PRESENT A DISPUTE LIKE THE ONE AT ISSUE IN THE MISSOURI
KANSAS-TEXAS R. CO. CASE.  IT INVOLVES, THAT IS TO SAY, A
JURISDICTIONAL CONTROVERSY BETWEEN TWO UNIONS.  IT RAISES THE QUESTION
WHETHER ONE COLLECTIVE BARGAINING AGENT OR THE OTHER IS THE PROPER
REPRESENTATIVE FOR THE PRESENTATION OF CERTAIN CLAIMS TO THE EMPLOYER. 
IT INVOLVES A DETERMINATION OF THE POINT WHERE THE EXCLUSIVE
JURISDICTION OF ONE CRAFT ENDS AND WHERE THE AUTHORITY OF ANOTHER CRAFT
BEGINS.  FOR THE REASONS STATED IN OUR OPINIONS IN THE MISSOURI-KANSAS
TEXAS R. CO. CASE AND IN THE SWITCHMEN'S CASE, WE BELIEVE THAT CONGRESS
LEFT THE SOCALLED JURISDICTIONAL CONTROVERSIES BETWEEN UNIONS TO
AGENCIES OR TRIBUNALS OTHER THAN THE COURTS.  WE SEE NO REASON FOR
DIFFERENTIATING THIS JURISDICTIONAL DISPUTE FROM THE OTHERS.  WHETHER
DIFFERENT CONSIDERATIONS WOULD BE APPLICABLE IN CASE AN EMPLOYEE WERE
ASSERTING THAT THE ACT GAVE HIM THE PRIVILEGE OF CHOOSING HIS OWN
REPRESENTATIVE FOR THE PROSECUTION OF HIS CLAIMS IS NOT BEFORE US. 

REVERSED.  REVERSED. 

FN1  THE BOARD WAS APPOINTED APRIL 14, 1937, AND WAS COMPOSED OF G.
STANLEIGH ARNOLD, CHARLES KERR, AND DEXTER M. KEEZER. 

FN2  REFERENCE IS ALSO MADE TO CERTAIN INFORMAL RULINGS BY THE
NATIONAL MEDIATION BOARD THAT THE INDIVIDUAL EMPLOYEE HAS THE RIGHT
UNDER THE ACT TO SELECT HIS OWN REPRESENTATIVE IN SUCH A CASE.  AND
CONSIDERABLE STRESS IS GIVEN TO THE FOLLOWING STATEMENT OF THE
EMERGENCY BOARD, SUPRA NOTE 1, APPOINTED IN 1937: 

"THIS LEGISLATION WAS ENACTED FOR THE PURPOSE OF PROTECTING NATIONAL
TRANSPORTATION AGAINST THE CONSEQUENCES OF LABOR DISPUTES BETWEEN
CARRIERS AND THEIR EMPLOYEES.  IT WAS DEVISED BY REPRESENTATIVES OF
MANAGEMENT, THE EMPLOYEES, AND THE PUBLIC.  IT SECURED THE BENEFITS OF
UNHAMPERED COLLECTIVE BARGAINING TO THE SEVERAL CRAFTS OR CLASSES
ENGAGED IN THE WORK OF RAILWAY TRANSPORTATION.  WHEN A CRAFT OR CLASS,
THROUGH REPRESENTATIVES CHOSEN BY A MAJORITY, NEGOTIATES A CONTRACT
WITH A CARRIER, ALL MEMBERS OF THE CRAFT OR CLASS SHARE IN THE RIGHTS
SECURED BY THE CONTRACT, REGARDLESS OF THEIR AFFILIATIONS WITH ANY
ORGANIZATION OF EMPLOYEES.  IT IS CLEARLY PROVIDED THAT THESE RIGHTS
MAY BE PROTECTED BY NEGOTIATION OR BY THE SEVERAL METHODS OF ADJUSTMENT
ESTABLISHED BY THE ACT.  IT IS TRUE THAT THE REPRESENTATIVES OF THE
MAJORITY REPRESENT THE WHOLE CRAFT OR CLASS IN THE MAKING OF AN
AGREEMENT FOR THE BENEFIT OF ALL, BUT IT IS EQUALLY TRUE THAT NOTHING
IN THE ACT DENIES THE RIGHT TO ANY EMPLOYEE, OR GROUP OF EMPLOYEES, TO
ENFORCE THROUGH REPRESENTATIVES OF HIS OR THEIR OWN CHOOSING, HIS OR
THEIR RIGHTS UNDER ANY SUCH AGREEMENT.  THE WHOLE SPIRIT AND INTENTION
OF THE ACT IS CONTRARY TO THE USE OF ANY COERCION OR INFLUENCE AGAINST
THE EXERCISE OF AN INDIVIDUAL'S LIBERTY IN HIS CHOICE OF
REPRESENTATIVES IN PROTECTING HIS INDIVIDUAL RIGHTS SECURED BY LAW OR
CONTRACT." 

FN3  THE ACT PROVIDES FOR PROCEEDINGS BEFORE THE ADJUSTMENT BOARD IN
DISPUTES GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR
APPLICATION OF AGREEMENTS CONCERNING RATES OF PAY, RULES OR WORKING
CONDITIONS.  SEC. 3, FIRST (I).  IN SUCH CASES THE PARTIES "MAY BE
HEARD EITHER IN PERSON, BY COUNSEL, OR BY OTHER REPRESENTATIVES, AS
THEY MAY RESPECTIVELY ELECT."  SEC. 3, FIRST (J). 

FN4  THESE DO NOT INCLUDE PERSONAL INJURY CLAIMS AND THE LIKE.  THEY
EMBRACE CLAIMS WHICH THOUGH STRICTLY PERSONAL ARISE OUT OF AND INVOLVE
AN INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT WHICH THE
ENGINEERS NEGOTIATED AND UNDER WHICH THE INDIVIDUAL ENGINEER IS
WORKING. 

MR. JUSTICE JACKSON CONCURS IN THE RESULT. 

MR. JUSTICE ROBERTS AND MR. JUSTICE REED ARE OF THE VIEW THAT THE
COURT SHOULD ENTERTAIN JURISDICTION OF THE PRESENT CONTROVERSIES FOR
THE REASONS SET OUT IN THE DISSENT IN SWITCHMEN'S UNION V. NATIONAL
MEDIATION BOARD, ANTE, P. 307. 
..END :



S.E.C. V. JOINER CORP., 320 U.S. 344 


NO. 24.  ARGUED OCTOBER 18, 1943.  - DECIDED NOVEMBER 22, 1943.  - 133
F.2D 241, REVERSED. 


1.  THE TRANSACTIONS INVOLVED IN THIS CASE WERE NOT SIMPLY SALES AND
ASSIGNMENTS OF INTERESTS IN LAND, BUT BY THE NATURE OF THE OFFERS WERE
WITHIN THE TERMS "INVESTMENT CONTRACTS" AND "ANY INTEREST OR INSTRUMENT
COMMONLY KNOWN AS A 'SECURITY,'" AND WERE THEREFORE SALES OF
"SECURITIES" WITHIN THE MEANING OF SEC. 2(1) OF THE SECURITIES ACT OF
1933.  P. 351. 

2.  THE EJUSDEM GENERIS RULE AND THE MAXIM EXPRESSIO UNIUS EST
EXCLUSIO ALTERIUS ARE SUBORDINATE TO THE DOCTRINE THAT COURTS WILL
CONSTRUE THE DETAILS OF AN ACT IN CONFORMITY WITH ITS DOMINATING
GENERAL PURPOSE, WILL READ TEXT IN THE LIGHT OF CONTEXT, AND, SO FAR AS
THE MEANINGS OF THE WORDS FAIRLY PERMIT, WILL INTERPRET THE TEXT SO AS
TO CARRY OUT IN PARTICULAR CASES THE GENERALLY EXPRESSED LEGISLATIVE
POLICY.  P. 350. 

3.  THE TRANSACTIONS WERE NOT BEYOND THE SCOPE OF THE ACT MERELY
BECAUSE THE OFFERINGS WERE OF LEASES AND ASSIGNMENTS WHICH UNDER STATE
LAW CONVEYED INTERESTS IN REAL ESTATE.  P. 352. 

4.  IN A CIVIL ACTION A PREPONDERANCE OF THE EVIDENCE IS SUFFICIENT
TO ESTABLISH THAT WHAT WERE BEING SOLD WERE "SECURITIES" UNDER THE
ACT.  P. 355. 

SECURITIES AND EXCHANGE COMMISSION V. C.M. JOINER LEASING CORPORATION
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 318 U.S. 755, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DENYING AN INJUNCTION IN A SUIT INSTITUTED BY THE COMMISSION TO
RESTRAIN VIOLATIONS OF THE SECURITIES ACT OF 1933. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE SECURITIES AND EXCHANGE COMMISSION BROUGHT THIS ACTION IN
DISTRICT COURT TO RESTRAIN RESPONDENTS FROM FURTHER VIOLATIONS OF SECS.
5(A) AND 17(A)(2) AND (3) OF THE SECURITIES ACT OF 1933.  FN1  THE
DISTRICT COURT DENIED RELIEF AND THE CIRCUIT COURT OF APPEALS AFFIRMED
UPON A CONSTRUCTION OF THE STATUTE WHICH EXCLUDES FROM ITS OPERATION
ALL TRADING IN OIL AND GAS LEASES.  133 F.2D 241.  AS THIS PRESENTS A
QUESTION IMPORTANT TO THE ADMINISTRATION OF THE ACT WE GRANTED
CERTIORARI.  FN2 

RESPONDENTS AND ONE JOHNSON, A DEFENDANT AGAINST WHOM A DECREE WAS
TAKEN BY CONSENT, ENGAGED IN A CAMPAIGN TO SELL ASSIGNMENTS OF OIL
LEASES.  THE UNDERLYING LEASES, ACREAGE FROM WHICH WAS BEING SOLD, ARE
NOT IN THE RECORD.  THEY REQUIRED, AS APPEARS FROM THE ASSIGNMENTS,
ANNUAL RENTAL IN CASE OF DELAYED DRILLING OF $1 PER YEAR.  IT ALSO
SEEMS THAT THESE LEASES WERE GRANTED BY THE LANDOWNERS ON AN AGREEMENT
THAT A TEST WELL WOULD BE DRILLED BY THE LESSEES.  ONE ANTHONY BLOCKED
UP LEASES ON ABOUT 4,700 ACRES OF LAND IN MCCULLOCH COUNTY, TEXAS, IN
CONSIDERATION OF DRILLING A TEST WELL.  DEFENDANT JOINER TESTIFIED THAT
HE ACQUIRED 3,002 OF THESE ACRES FOR "PRACTICALLY NOTHING EXCEPT TO
DRILL A WELL."  ANTHONY WAS A DRILLER AND AGREED TO DO THE DRILLING
WHICH THE JOINER COMPANY UNDERTOOK TO FINANCE, EXPECTING TO RAISE MOST
OF THE FUNDS FOR THIS PURPOSE FROM THE RESALE OF SMALL PARCELS OF
ACREAGE.  THE SALES CAMPAIGN WAS BY MAIL ADDRESSED TO UPWARDS OF 1,000
PROSPECTS IN WIDELY SCATTERED PARTS OF THE COUNTRY AND ACTUAL
PURCHASERS, ABOUT FIFTY IN NUMBER, WERE LOCATED IN AT LEAST EIGHTEEN
STATES AND THE DISTRICT OF COLUMBIA.  LEASEHOLD SUBDIVISIONS OFFERED
NEVER EXCEEDED TWENTY ACRES AND USUALLY COVERED TWO AND A HALF TO FIVE
ACRES.  THE PRICES RANGED FROM $5 TO $15 PER ACRE.  THE LARGEST SINGLE
PURCHASE SHOWN BY THE RECORD WAS $100, AND THE GREAT MAJORITY OF
PURCHASES AMOUNTED TO $25 OR LESS.  ALL BUYERS WERE GIVEN THE
OPPORTUNITY TO PAY THESE SUMS IN INSTALLMENTS, AND SOME DID SO. 

THE SALES LITERATURE NOWHERE MENTIONED DRILLING CONDITIONS WHICH THE
PURCHASER WOULD MEET OR COSTS WHICH HE WOULD INCUR IF HE ATTEMPTED TO
DEVELOP HIS OWN ACREAGE.  ON THE OTHER HAND, IT ASSURED THE PROSPECT
THAT THE JOINER COMPANY WAS ENGAGED IN AND WOULD COMPLETE THE DRILLING
OF A TEST WELL SO LOCATED AS TO TEST THE OIL-PRODUCING POSSIBILITIES OF
THE OFFERED LEASEHOLDS.  THE LEASES WERE OFFERED ON THESE TERMS:  "YOU
MAY HAVE TEN ACRES AROUND ONE OR BOTH WELLS AT $5 PER ACRE CASH PAYABLE
BY AUGUST 1ST, 1941 AND $5 PER ACRE ADDITIONAL PAYABLE NOVEMBER 1ST,
1941 OR THIRTY DAYS AFTER BOTH WELLS ARE COMPLETED."  OTHER LANGUAGE IN
THE ADVERTISING LITERATURE EMPHASIZED THE CHARACTER OF THE PURCHASE AS
AN INVESTMENT AND AS A PARTICIPATION IN AN ENTERPRISE.  FN3 

THE TRIAL COURT MADE FINDINGS OF WHAT AMOUNTED TO FRAUD, AND THE
CIRCUIT COURT OF APPEALS APPROVED, SAYING, "THE EVIDENCE WOULD JUSTIFY
STRONGER FINDINGS OF FRAUD."  FN4  HOWEVER, BOTH COURTS REFUSED
INJUNCTION BECAUSE, AS THE COURT OF APPEALS STATED, IT COULD "FIND
SIMPLY SALES AND ASSIGNMENTS OF LEGAL AND LEGITIMATE OIL AND GAS
LEASES, I.E., SALES OF INTERESTS IN LAND."  IT WAS THOUGHT THAT THESE
ASSIGNMENTS COULD NOT BE PROVED TO BE "SECURITIES" OR "INVESTMENT
CONTRACTS" UNDER SEC. 2(1) OF THE ACT. 

UNDISPUTED FACTS SEEM TO US, HOWEVER, TO ESTABLISH THE CONCLUSION
THAT DEFENDANTS WERE NOT, AS A PRACTICAL MATTER, OFFERING NAKED
LEASEHOLD RIGHTS.  HAD THE OFFER MAILED BY DEFENDANTS OMITTED THE
ECONOMIC INDUCEMENTS OF THE PROPOSED AND PROMISED EXPLORATION WELL, IT
WOULD HAVE BEEN A QUITE DIFFERENT PROPOSITION.  PURCHASERS THEN WOULD
HAVE BEEN LEFT TO THEIR OWN DEVICES FOR REALIZING UPON THEIR RIGHTS. 
THEY WOULD HAVE ANTICIPATED WAITING AN INDEFINITE TIME, PAYING DELAYED
DRILLING RENTAL MEANWHILE UNTIL SOME CHANCE EXPLORATION PROVED OR
DISPROVED THE PRODUCTIVITY OF THEIR ACRES.  THEIR ALTERNATIVE WOULD
HAVE BEEN TO TEST THEIR OWN LEASES AT A COST OF $5,000 OR MORE PER
WELL.  FN5 

BUT DEFENDANTS OFFERED NO SUCH DISMAL PROSPECT.  THEIR PROPOSITION
WAS TO SELL DOCUMENTS WHICH OFFERED THE PURCHASER A CHANCE, WITHOUT
UNDUE DELAY OR ADDITIONAL COST, OF SHARING IN DISCOVERY VALUES WHICH
MIGHT FOLLOW A CURRENT EXPLORATION ENTERPRISE.  THE DRILLING OF THIS
WELL WAS NOT AN UNCONNECTED OR UNCONTROLLED PHENOMENON TO WHICH
SALESMEN POINTED MERELY TO SHOW THE POSSIBILITIES OF THE OFFERED
LEASES.  THE EXPLORATION ENTERPRISE WAS WOVEN INTO THESE LEASEHOLDS, IN
BOTH AN ECONOMIC AND A LEGAL SENSE; THE UNDERTAKING TO DRILL A WELL
RUNS THROUGH THE WHOLE TRANSACTION AS THE THREAD ON WHICH EVERYBODY'S
BEADS WERE STRUNG.  AN AGREEMENT TO DRILL FORMED THE CONSIDERATION UPON
WHICH ANTHONY WAS ABLE TO COLLECT LEASES ON 4,700 ACRES.  IT WAS IN
RETURN FOR ASSUMPTION OF THIS AGREEMENT THAT JOINER GOT 3,002 OF THE
ACRES, LEAVING ANTHONY ABOUT 1,700 ACRES FOR HIS TROUBLE.  AND IT WAS
HIS UNDERTAKING TO DRILL THE WELL WHICH ENABLED JOINER TO FINANCE IT BY
THE SALE OF ACREAGE.  BY SELLING FROM 1,000 TO 2,000 ACRES AT FROM $5
TO $15 PER ACRE, HE COULD FULFILL HIS OBLIGATION TO DRILL THE WELL,
RECOUP HIS INCIDENTAL EXPENSES AND THOSE OF THE SELLING INTERMEDIARIES,
AND HAVE A THOUSAND ACRES LEFT FOR THE GAMBLE, WITH NO INVESTMENT OF
HIS OWN; AND IF HE SOLD MORE, HE WOULD HAVE A PRESENT PROFIT.  WITHOUT
THE DRILLING OF THE WELL, NO ONE'S LEASES HAD ANY VALUE, AND EXCEPT FOR
THAT UNDERTAKING THEY HAD BEEN OBTAINED AT NO SUBSTANTIAL COST.  THE
WELL WAS NECESSARY NOT ONLY TO FULFILL THE HOPES OF PURCHASERS BUT
APPARENTLY EVEN TO AVOID FORFEITURE OF THEIR LEASES. 

WHETHER, AS THE DISSENTING JUDGE BELOW SUGGESTS, THE ASSIGNEE
ACQUIRED A LEGAL RIGHT TO COMPEL THE DRILLING OF THE TEST WELL IS A
QUESTION OF STATE LAW WHICH WE FIND IT UNNECESSARY TO DETERMINE.  THE
TERMS OF THE OFFERING AS QUOTED ABOVE, EITHER BY ITSELF OR WHEN READ IN
CONNECTION WITH THE AGREEMENT TO DRILL AS CONSIDERATION FOR THE
ORIGINAL LEASES, MIGHT BE TAKEN TO EMBODY AN IMPLIED AGREEMENT TO
COMPLETE THE WELLS.  BUT AT ANY RATE, THE ACCEPTANCE OF THE OFFER
QUOTED MADE A CONTRACT IN WHICH PAYMENTS WERE TIMED AND CONTINGENT UPON
COMPLETION OF THE WELL AND THEREFORE A FORM OF INVESTMENT CONTRACT IN
WHICH THE PURCHASER WAS PAYING BOTH FOR A LEASE AND FOR A DEVELOPMENT
PROJECT. 

IT IS CLEAR THAT AN ECONOMIC INTEREST IN THIS WELL-DRILLING
UNDERTAKING WAS WHAT BROUGHT INTO BEING THE INSTRUMENTS THAT DEFENDANTS
WERE SELLING AND GAVE TO THE INSTRUMENTS MOST OF THEIR VALUE AND ALL OF
THEIR LURE.  THE TRADING IN THESE DOCUMENTS HAD ALL THE EVILS INHERENT
IN THE SECURITIES TRANSACTIONS WHICH IT WAS THE AIM OF THE SECURITIES
ACT TO END. 

IT IS URGED THAT THE DEFINITION OF "SECURITY" WHICH CONTROLS THE
SCOPE OF THIS ACT  FN6  FALLS SHORT OF INCLUDING THESE TRANSACTIONS. 
RESPONDENTS INVOKE THE "EJUSDEM GENERIS RULE" TO CONSTRICT THE MORE
GENERAL TERMS SUBSTANTIALLY TO THE SPECIFIC TERMS WHICH THEY FOLLOW. 
AND THEY INVOKE THE ANCIENT MAXIM "EXPRESSIO UNIUS EST EXCLUSIO
ALTERIUS" TO EXCLUDE SALES OF LEASEHOLD SUBDIVISIONS BY THE ACRE
BECAUSE THE STATUTE EXPRESSLY INCLUDES SALES OF LEASEHOLD SUBDIVISIONS
BY UNDIVIDED SHARES. 

SOME RULES OF STATUTORY CONSTRUCTION COME DOWN TO US FROM SOURCES
THAT WERE HOSTILE TOWARD THE LEGISLATIVE PROCESS ITSELF AND THOUGHT IT
GENERALLY WISE TO RESTRICT THE OPERATION OF AN ACT TO ITS NARROWEST
PERMISSIBLE COMPASS.  FN7  HOWEVER WELL THESE RULES MAY SERVE AT TIMES
TO AID IN DECIPHERING LEGISLATIVE INTENT, THEY LONG HAVE BEEN
SUBORDINATED TO THE DOCTRINE THAT COURTS WILL CONSTRUE THE DETAILS OF
AN ACT IN CONFORMITY WITH ITS DOMINATING GENERAL PURPOSE, WILL READ
TEXT IN THE LIGHT OF CONTEXT AND WILL INTERPRET THE TEXT SO FAR AS THE
MEANING OF THE WORDS FAIRLY PERMITS SO AS TO CARRY OUT IN PARTICULAR
CASES THE GENERALLY EXPRESSED LEGISLATIVE POLICY.  FN8 

IN THE SECURITIES ACT THE TERM "SECURITY" WAS DEFINED TO INCLUDE BY
NAME OR DESCRIPTION MANY DOCUMENTS IN WHICH THERE IS COMMON TRADING FOR
SPECULATION OR INVESTMENT.  SOME, SUCH AS NOTES, BONDS, AND STOCKS, ARE
PRETTY MUCH STANDARDIZED AND THE NAME ALONE CARRIES WELL-SETTLED
MEANING.  OTHERS ARE OF MORE VARIABLE CHARACTER AND WERE NECESSARILY
DESIGNATED BY MORE DESCRIPTIVE TERMS, SUCH AS "TRANSFERABLE SHARE,"
"INVESTMENT CONTRACT," AND "IN GENERAL ANY INTEREST OR INSTRUMENT
COMMONLY KNOWN AS A SECURITY."  WE CANNOT READ OUT OF THE STATUTE THESE
GENERAL DESCRIPTIVE DESIGNATIONS MERELY BECAUSE MORE SPECIFIC ONES HAVE
BEEN USED TO REACH SOME KINDS OF DOCUMENTS.  INSTRUMENTS MAY BE
INCLUDED WITHIN ANY OF THESE DEFINITIONS, AS MATTER OF LAW, IF ON THEIR
FACE THEY ANSWER TO THE NAME OR DESCRIPTION.  HOWEVER, THE REACH OF THE
ACT DOES NOT STOP WITH THE OBVIOUS AND COMMONPLACE.  NOVEL, UNCOMMON,
OR IRREGULAR DEVICES, WHATEVER THEY APPEAR TO BE, ARE ALSO REACHED IF
IT BE PROVED AS MATTER OF FACT THAT THEY WERE WIDELY OFFERED OR DEALT
IN UNDER TERMS OR COURSES OF DEALING WHICH ESTABLISHED THEIR CHARACTER
IN COMMERCE AS "INVESTMENT CONTRACTS," OR AS "ANY INTEREST OR
INSTRUMENT COMMONLY KNOWN AS A 'SECURITY.'"  THE PROOF HERE SEEMS CLEAR
THAT THESE DEFENDANTS' OFFERS BROUGHT THEIR INSTRUMENTS WITHIN THESE
TERMS. 

IT IS URGED THAT BECAUSE THE DEFINITION MENTIONS "FRACTIONAL
UNDIVIDED INTEREST IN OIL, GAS OR OTHER MINERAL RIGHTS," IT EXCLUDES
SALES OF LEASEHOLD SUBDIVISIONS BY PARCELS.  OIL AND GAS RIGHTS POSED A
DIFFICULT PROBLEM TO THE LEGISLATIVE DRAFTSMAN.  SUCH RIGHTS WERE
NOTORIOUS SUBJECTS OF SPECULATION AND FRAUD, BUT LEASES AND ASSIGNMENTS
WERE ALSO INDISPENSABLE INSTRUMENTS OF LEGITIMATE OIL EXPLORATION AND
PRODUCTION.  TO INCLUDE LEASES AND ASSIGNMENTS BY NAME MIGHT EASILY
BURDEN THE OIL INDUSTRY BY CONTROLS THAT WERE DESIGNED ONLY FOR THE
TRAFFIC IN SECURITIES.  THIS WAS AVOIDED BY INCLUDING SPECIFICALLY ONLY
THAT FORM OF SPLITTING UP OF MINERAL INTERESTS WHICH HAD BEEN MOST
UTILIZED FOR SPECULATIVE PURPOSES.  WE DO NOT THINK THE DRAFTSMEN
THEREBY IMMUNIZED OTHER FORMS OF CONTRACTS AND OFFERINGS WHICH ARE
PROVED AS MATTER OF FACT TO ANSWER TO SUCH DESCRIPTIVE TERMS AS
"INVESTMENT CONTRACTS" AND "SECURITIES." 

NOR CAN WE AGREE WITH THE COURT BELOW THAT DEFENDANTS' OFFERINGS WERE
BEYOND THE SCOPE OF THE ACT BECAUSE THEY OFFERED LEASES AND ASSIGNMENTS
WHICH UNDER TEXAS LAW CONVEYED INTERESTS IN REAL ESTATE.  FN9  IN
APPLYING ACTS OF THIS GENERAL PURPOSE, THE COURTS HAVE NOT BEEN GUIDED
BY THE NATURE OF THE ASSETS BACK OF A PARTICULAR DOCUMENT OR OFFERING. 
FN10  THE TEST RATHER IS WHAT CHARACTER THE INSTRUMENT IS GIVEN IN
COMMERCE BY THE TERMS OF THE OFFER, THE PLAN OF DISTRIBUTION, AND THE
ECONOMIC INDUCEMENTS HELD OUT TO THE PROSPECT.  IN THE ENFORCEMENT OF
AN ACT SUCH AS THIS IT IS NOT INAPPROPRIATE THAT PROMOTERS' OFFERINGS
BE JUDGED AS BEING WHAT THEY WERE REPRESENTED TO BE. 

FINALLY IT IS URGED THAT WE MUST INTERPRET WITH STRICTNESS THE SCOPE
OF THIS ACT BECAUSE VIOLATIONS OF IT ARE CRIMES.  FN11  SOME AUTHORITY
IS CITED AND A GREAT ARRAY COULD BE ASSEMBLED TO SUPPORT THE GENERAL
PROPOSITION THAT PENAL STATUTES MUST BE STRICTLY CONSTRUED.  AN ALMOST
EQUALLY IMPRESSIVE COLLECTION CAN BE MADE OF DECISIONS HOLDING THAT
REMEDIAL STATUTES SHOULD BE LIBERALLY CONSTRUED.  WHAT, THEN, SHALL WE
SAY OF THE CONSTRUCTION OF A SECTION LIKE THIS WHICH MAY BE THE BASIS
OF EITHER CIVIL PROCEEDINGS OF A PREVENTIVE OR REMEDIAL NATURE OR OF
PUNITIVE PROCEEDINGS, OR PERHAPS BOTH? 

DIFFERENT COURTS HAVE GIVEN DIFFERENT ANSWERS TO THE GENERAL
QUESTION.  FN12  SINCE 1911, ALL STATES EXCEPT NEVADA HAVE ENACTED SOME
TYPE OF "BLUE SKY LAW."  WHILE THE LAWS ARE NOT UNIFORM, THEY GENERALLY
CONTAIN BOTH CIVIL AND CRIMINAL SANCTIONS, AND ALL HAVE THE DOMINATING
PURPOSE TO PREVENT AND PUNISH FRAUDULENT FLOATING OF SECURITIES.  FN13
THE WEIGHT OF AUTHORITY IS COMMITTED TO A LIBERAL CONSTRUCTION N14,
ALTHOUGH SOME COURTS TEND TOWARD STRICT CONSTRUCTION N15, AND SOME HAVE
SEEMED TO DIFFERENTIATE ACCORDING TO THE USE BEING MADE OF THE STATUTE,
INCLINING TO A STRICT CONSTRUCTION WHEN A CRIMINAL PENALTY IS BEING
IMPOSED AND A MORE LIBERAL ONE WHEN CIVIL REMEDIES ARE BEING APPLIED. 
FN16 

BUT THIS COURT, AS EARLY AS 1820, SPEAKING THROUGH CHIEF JUSTICE
MARSHALL, SAID:  "THE RULE THAT PENAL LAWS ARE TO BE CONSTRUED
STRICTLY, IS PERHAPS NOT MUCH LESS OLD THAN CONSTRUCTION ITSELF.  ...
IT IS SAID, THAT NOTWITHSTANDING THIS RULE, THE INTENTION OF THE LAW
MAKER MUST GOVERN IN THE CONSTRUCTION OF PENAL, AS WELL AS OTHER
STATUTES.  THIS IS TRUE.  BUT THIS IS NOT A NEW INDEPENDENT RULE WHICH
SUBVERTS THE OLD.  IT IS A MODIFICATION OF THE ANCIENT MAXIM, AND
AMOUNTS TO THIS, THAT THOUGH PENAL LAWS ARE TO BE CONSTRUED STRICTLY,
THEY ARE NOT TO BE CONSTRUED SO STRICTLY AS TO DEFEAT THE OBVIOUS
INTENTION OF THE LEGISLATURE.  THE MAXIM IS NOT TO BE SO APPLIED AS TO
NARROW THE WORDS OF THE STATUTE TO THE EXCLUSION OF CASES WHICH THOSE
WORDS, IN THEIR ORDINARY ACCEPTATION, OR IN THAT SENSE IN WHICH THE
LEGISLATURE HAS OBVIOUSLY USED THEM, WOULD COMPREHEND."  UNITED STATES
V. WILTBERGER, 5 WHEAT.  76, 95.    THIS RULE IN SUBSTANCE WAS REPEATED
IN UNITED STATES V. HARTWELL, 6 WALL.  385, 396, WHICH SAID ALSO:  "THE
RULE OF STRICT CONSTRUCTION IS NOT VIOLATED BY PERMITTING THE WORDS OF
THE STATUTE TO HAVE THEIR FULL MEANING, OR THE MORE EXTENDED OF TWO
MEANINGS, AS THE WIDER POPULAR INSTEAD OF THE MORE NARROW TECHNICAL
ONE; BUT THE WORDS SHOULD BE TAKEN IN SUCH A SENSE, BENT NEITHER ONE
WAY NOR THE OTHER, AS WILL BEST MANIFEST THE LEGISLATIVE INTENT."  THE
PRINCIPLE HAS BEEN FOLLOWED IN UNITED STATES V. CORBETT, 215 U.S. 233,
242; DONNELLEY V. UNITED STATES, 276 U.S. 505, 512; UNITED STATES V.
GILES, 300 U.S. 41, 48. 

IN THE PRESENT CASE WE DO NOTHING TO THE WORDS OF THE ACT; WE MERELY
ACCEPT THEM.  IT WOULD BE NECESSARY IN ANY CASE FOR ANY KIND OF RELIEF
TO PROVE THAT DOCUMENTS BEING SOLD WERE SECURITIES UNDER THE ACT.  IN
SOME CASES IT MIGHT BE DONE BY PROVING THE DOCUMENT ITSELF, WHICH ON
ITS FACE WOULD BE A NOTE, A BOND, OR A SHARE OF STOCK.  IN OTHERS PROOF
MUST GO OUTSIDE THE INSTRUMENT ITSELF AS WE DO HERE.  WHERE THIS PROOF
IS OFFERED IN A CIVIL ACTION, AS HERE, A PREPONDERANCE OF THE EVIDENCE
WILL ESTABLISH THE CASE; IF IT WERE OFFERED IN A CRIMINAL CASE, IT
WOULD HAVE TO MEET THE STRICTER REQUIREMENT OF SATISFYING THE JURY
BEYOND REASONABLE DOUBT. 

WE HOLD THAT THE COURT BELOW ERRED IN DENYING AN INJUNCTION UNDER THE
UNDISPUTED FACTS OF THIS CASE AND ITS FINDINGS.  THE JUDGMENT IS
REVERSED. 

FN1  48 STAT. 74, 15 U.S.C. SEC. 77E (A) AND SEC. 77Q (A), (2), (3). 

FN2  318 U.S. 755. 

FN3  THE FOLLOWING ARE EXTRACTS FROM LETTERS SIGNED BY THE JOINER
COMPANY AND BY JOINER:  "WE ARE PLEASED TO REPORT OUR CONCHO COUNTY
WELL DRILLING AT APPROXIMATELY 2510 FEET IN A VERY GOOD FORMATION.  WE
ARE SENDING OUT 800 FEET OF 8 1/4 INCH CASING TO BE RUN IN THE
MCCULLOCH COUNTY WELL TOMORROW.  BOTH WELLS SHOULD BE COMPLETED DURING
NEXT MONTH  ...  THIS OFFER GOES TO YOU WHO NOW HAVE A LEASE AROUND ONE
OR BOTH OF THESE LOCATIONS, AND ALSO TO YOU WHO HAVE AT SOME TIME
INVESTED IN A LEASE OR LEASES AROUND SOME WELL THAT THE C.M. JOINER
INTERESTS HAVE DRILLED.  ... WE ARE SUBMITTING THIS PROPOSITION TO YOU
IN LANGUAGE THAT WILL APPEAL ONLY TO BUSINESS PEOPLE WHO ARE INTERESTED
IN MAKING AN INVESTMENT WHERE THEY HAVE A GOOD CHANCE FOR SPLENDID
RETURNS ON THE INVESTMENT."  "THERE HAS NOTHING HAPPENED TO EITHER OF
THESE WELLS THAT WOULD LESSEN THE PROSPECTS FOR THE OPENING OF A NEW
OIL FIELD.  ...  WE FEEL THAT IF WE ARE TO GET THE LAW OF AVERAGE THAT
ONE OR BOTH THESE WELLS SHOULD BE PRODUCERS.  I KNOW YOU WOULD LIKE THE
THRILL THAT COMES TO THOSE OWNING A LEASE AROUND A PRODUCING WELL.  ...
IF YOU SEND IN AN ORDER FOR TWENTY ACRES  ...  YOU WILL GET TEN ACRES
FREE IN THE NEXT BLOCK OF ACREAGE WE DRILL WHICH IS MOST LIKELY TO BE
IN CONCHO COUNTY, TEXAS.  YOU WILL REALLY BE IN THE OIL BUSINESS." 
"REMEMBER, IF YOU DO NOT MAKE MONEY ON YOUR INVESTMENT IT WILL BE
IMPOSSIBLE FOR US TO MAKE MONEY.  ...  FORTUNES MADE IN OIL GO TO THOSE
WHO INVEST.  WE BELIEVE YOU SHOULD INVEST HERE, AND NOW." 

THERE IS ALSO ON THE CIRCULARS AND SELLING LETTERS THE FOLLOWING
STATEMENT: 

"BECAUSE THESE SECURITIES ARE BELIEVED EXEMPTED FROM REGISTRATION
THEY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION; BUT SUCH EXEMPTION, IF AVAILABLE, DOES NOT INDICATE THAT
THE SECURITIES HAVE BEEN EITHER APPROVED OR DISAPPROVED BY THE
COMMISTION OR THAT THE COMMISSION HAS CONSIDERED THE ACCURACY OR
COMPLETENESS OF THE STATEMENTS IN THIS COMMUNICATION." 

THE ORIGIN OF THIS IS UNCERTAIN FROM THE EVIDENCE.  JOINER SAYS HE
"GOT IT" FROM THE COMMISSION.  WHAT WEIGHT, IF ANY, SHOULD BE GIVEN
UNDER THE CIRCUMSTANCES TO THIS CHARACTERIZATION OF WHAT WAS BEING SOLD
AS "SECURITIES" IS NOT CLEAR.  THEY HAD TO BE SECURITIES TO BE EXEMPT
SECURITIES UNDER THE ACT.  15 U.S.C. SEC. 77C. 

FN4  THE NATURE OF THE MISREPRETENTATIONS IS NOT MATERIAL TO THE
QUESTION HERE.  THEY RELATED GENERALLY TO THE LOCATION OF THE
PROPERTIES IN RESPECT OF PRODUCING TERRITORY. 

FN5  JOINER'S WELL WAS TO COST OVER $5,000.  THE ESTIMATED AVERAGE
COST OF DRILLING WELLS IN WEST CENTRAL TEXAS IS ABOUT $10,000.  SEE
TABLE REPRODUCED IN HOUSE HEARINGS ON H. RES. 290 AND H.R. 7372, 76TH
CONG., 3D SESS. (1939) PT. I, P. 350. 

FN6  SECTION 2(1) OF THE ACT, 15 U.S.C. SEC. 77B (1), PROVIDES: 

"THE TERM 'SECURITY' MEANS ANY NOTE, STOCK, TREASURY STOCK, BOND,
DEBENTURE, EVIDENCE OF INDEBTEDNESS, CERTIFICATE OF INTEREST OR
PARTICIPATION IN ANY PROFIT-SHARING AGREEMENT, COLLATERAL-TRUST
CERTIFICATE, PREORGANIZATION CERTIFICATE OR SUBSCRIPTION, TRANSFERABLE
SHARE, INVESTMENT CONTRACT, VOTING-TRUST CERTIFICATE, CERTIFICATE OF
DEPOSIT FOR A SECURITY, FRACTIONAL UNDIVIDED INTEREST IN OIL, GAS, OR
OTHER MINERAL RIGHTS, OR, IN GENERAL, ANY INTEREST OR INSTRUMENT
COMMONLY KNOWN AS A 'SECURITY,' OR ANY CERTIFICATE OF INTEREST OR
PARTICIPATION IN, TEMPORARY OR INTERIM CERTIFICATE FOR, RECEIPT FOR,
GUARANTEE OF, OR WARRANT OR RIGHT TO SUBSCRIBE TO OR PURCHASE, ANY OF
THE FOREGOING." 

FN7  IN THE FIRST EDITION OF STATUTES AND STATUTORY CONSTRUCTION BY
SUTHERLAND HE NO DOUBT EXPRESSED THE IMPRESSION GLEANED FROM EXTENSIVE
READING OF CASES WHEN HE WROTE IN THE PREFACE (1890):  "THE NATURAL
TENDENCY AND GROWTH OF THE LAW IS TOWARDS SYSTEM AND TOWARDS CERTAINTY,
TOWARDS MODES OF OPERATION AT ONCE PRACTICAL AND JUST, BY THE PROCESS
OF ITS INTELLIGENT JUDICIAL ADMINISTRATION; BUT THIS PROCESS IS
IMPAIRED BY OVERWORK AND LEGISLATIVE INTERFERENCE."  IN THE THIRD
EDITION (1943) HORACK OBSERVES IN THE PREFACE:  "THE THIRD EDITION
REFLECTS THE GROWING ACCEPTANCE OF STATUTES AS A CREATIVE ELEMENT IN
THE LAW RATHER THAN, AS SUTHERLAND SUGGESTED IN THE FIRST EDITION, AS
'LEGISLATIVE INTERFERENCE'." 

FN8  THIS COURT HAS REFUSED TO FOLLOW THE "EJUSDEM GENERIS" RULE,
EVEN IN CRIMINAL CASES, WHERE ITS APPLICATION SEEMED TO CONFLICT WITH
THE GENERAL PURPOSE OF AN ACT.  UNITED STATES V. GILLILAND, 312 U.S.
86, 93; PRUSSIAN V. UNITED STATES, 282 U.S. 675, 679; AND GOOCH V.
UNITED STATES, 297 U.S. 124, 128; SEE ALSO HELVERING V. STOCKHOLMS
ENSKILDA BANK, 293 U.S. 84, 88-89. 

IT HAS ALSO TREATED THE MAXIM "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS"
AS BUT AN AID TO CONSTRUCTION.  UNITED STATES V. BARNES, 222 U.S. 513,
519; SPRINGER V. PHILIPPINE ISLANDS, 277 U.S. 189, 206; NEUBERGER V.
COMMISSIONER, 311 U.S. 83, 88. 

FN9  DOWNMAN V. TEXAS, 231 U.S. 353; TEXAS CO. V. DAUGHERTY, 107 TEX.
226, 176 S.W.2D 717; RAILROAD COMMISSION V. ROWAN & NICHOLS OIL CO.,
310 U.S. 573, 579. 

FN10  ONE'S CEMETERY LOT IS NOT ORDINARILY THOUGHT OF AS AN
INVESTMENT AND IS MOST CERTAINLY REAL ESTATE.  BUT WHEN SUCH INTERESTS
BECOME THE SUBJECTS OF SPECULATION IN CONNECTION WITH THE CEMETERY
ENTERPRISE, COURTS HAVE HELD CONVEYANCES OF THESE LOTS TO BE
SECURITIES.  MATTER OF WALDSTEIN, 160 MISC. 763, 291 N.Y.S. 697;
HOLLOWAY V. THOMPSON, 42 N.E.2D 421(IND.  APP.).  FOR OTHER INSTANCES
WHERE PURPORTED SALES OF PROPERTY HAVE BEEN HELD "INVESTMENT CONTRACTS"
SEE SECURITIES & EXCHANGE COMM'N V. CRUDE OIL CORP., 93 F.2D
844(INTEREST IN OIL ROYALTIES SOLD AS BILL OF SALE FOR SPECIFIED NUMBER
OF BARRELS OF OIL); SECURITIES & EXCHANGE COMM'N V. TUNG CORPORATION,
32 F.SUPP.  371; SECURITIES & EXCHANGE COMM'N V. BAILEY, 41 F.SUPP. 
647(LAND BEARING TUNG TREES, TO BE DEVELOPED BY SELLER); SECURITIES &
EXCHANGE COMM'N V. PAYNE, 35 F.SUPP.  873(SILVER FOXES); PROHASKA V.
HEMMER-MILLER DEVELOPMENT CO., 256 ILL. APP. 331(FARM LAND, TO BE PAID
FOR WITH PROCEEDS OF CROPS RAISED BY VENDOR); KERST V. NELSON, 171
MINN. 191, 213 N.W. 904(LAND TO BE CULTIVATED AS A VINEYARD BY A THIRD
PARTY); STEVENS V. LIBERTY PACKING CORP., 111 N.J. EQ. 61, 161 A.
193(RABBITS). 

FN11  15 U.S.C. SEC. 77T. 

FN12  SEE 3 SUTHERLAND ON STATUTORY CONSTRUCTION (3D ED. 1943) SEC.
5703. 

FN13  SMITH, STATE BLUE SKY LAWS AND THE FEDERAL SECURITIES ACT, 34
MICHIGAN LAW REVIEW 1135. 

FN14  SEE NOTE 10 SUPRA; WAGNER V. KELSO, 195 IOWA 959, 193 N.W. 1;
WIGINGTON V. MID-CONTINENT ROYALTY CO., 130 KAN. 785, 288 P. 749;
PEOPLE V. MONTAGUE, 280 MICH. 610, 274 N.W. 347; STATE V. HOFACRE, 206
MINN. 167, 288 N.W. 13; STATE V. PULLEN, 58 R.I. 294, 192 A. 473;
KADANE V. CLARK, 135 TEX. 496, 143 S.W.2D 197; KLATT V. GUARANTEED BOND
CO., 213 WIS. 12, 250 N.W. 825. 

IN TEXAS ITSELF, OIL AND GAS LEASES HAVE BEEN HELD BY THE SUPREME
COURT TO BE SECURITIES WITHIN THE STATE ACT, NOTWITHSTANDING THE FACT
THAT THE ACT EXPRESSLY INCLUDES ONLY "ANY INTEREST IN OR UNDER" SUCH
LEASES.  KADANE V. CLARK, SUPRA. 

FN15  WESTENHAVER V. DUNNAVANT, 225 ALA. 400, 143 SO. 823; SOMERS V.
COMMERCIAL FINANCE CORP., 245 MASS. 286, 139 N.E. 837; NEW AMSTERDAM
CASUALTY CO. V. HYDE, 148 ORE.  229, 34 P.2D 930, 35 P.2D 980; MILLER
V. STUART, 69 UTAH 250, 253 P. 900. 

FN16  SEE 3 SUTHERLAND ON STATUTORY CONSTRUCTION (3D ED. 1943) SEC.
7104 AND CASES CITED IN NOTE 8 THEREUNDER. 

MR. JUSTICE ROBERTS IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




MIDSTATE CO. V. PENNA. R. CO., 320 U.S. 356 


NO. 40.  ARGUED OCTOBER 21, 22, 1943.  - DECIDED NOVEMBER 22, 1943.  -
21 CAL.2D 243, 131 P.2D 544, REVERSED. 


AN ACTION BY A CARRIER TO RECOVER FROM A SHIPPER THE FULL AMOUNT OF
TRANSPORTATION CHARGES FOR SHIPMENTS OVER ITS OWN AND CONNECTING
CARRIERS' LINES IS SUBJECT TO THE THREE YEARS' LIMITATION OF SEC.
16(3)(A) OF THE INTERSTATE COMMERCE ACT; AND THE LIMITATION CANNOT BE
EXTENDED BY AN EXPRESS AGREEMENT BETWEEN THE CARRIER AND SHIPPER
ENTERED INTO PRIOR TO THE EXPIRATION OF THE PERIOD.  P. 358. 

MIDSTATE HORTICULTURAL CO., INC. V. PENNSYLVANIA RAILROAD CO. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

CERTIORARI, 319 U.S. 735, TO REVIEW THE AFFIRMANCE OF A JUDGMENT (124
P.2D 902) FOR THE CARRIER IN AN ACTION AGAINST A SHIPPER TO RECOVER THE
AMOUNT OF TRANSPORTATION CHARGES. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 
RESPONDENT SUED TO RECOVER THE FULL AMOUNT OF FREIGHT CHARGES ON TWENTY
ONE CARLOADS OF GRAPES SHIPPED BY PETITIONER OVER ITS OWN AND
CONNECTING CARRIERS' LINES FROM CALIFORNIA TO STATED DESTINATIONS IN
NEW YORK AND NEW JERSEY.  THE ULTIMATE QUESTION IS WHETHER THE ACTION
WAS BROUGHT IN TIME UNDER SEC. 16(3)(A) OF THE INTERSTATE COMMERCE
ACT.  THIS PROVIDED: 

"ALL ACTIONS AT LAW BY CARRIERS SUBJECT TO THIS ACT FOR RECOVERY OF
THEIR CHARGES, OR ANY PART THEREOF, SHALL BE BEGUN WITHIN THREE YEARS
FROM THE TIME THE CAUSE OF ACTION ACCRUES, AND NOT AFTER."  FN1 

IN THE APPLICATION PRESENTED BY THIS RECORD, THE QUESTION TURNS ON
WHETHER THE SECTION'S LIMITATION CAN BE WAIVED BY EXPRESS AGREEMENT
MADE BEFORE THE PERIOD ENDS.  THE AGREEMENT WAS MADE, AT PETITIONER'S
REQUEST, THREE DAYS BEFORE THE TERM EXPIRED FOR SUING ON ACCOUNT OF THE
FIRST SHIPMENT.  BY ITS TERMS, IN CONSIDERATION OF RESPONDENT'S
FORBEARANCE TO SUE FOR A SPECIFIED TIME, PETITIONER UNDERTOOK NOT TO
"PLEAD IN ANY SUCH SUIT THE DEFENSE OF ANY GENERAL OR SPECIAL STATUTE
OF LIMITATIONS."  FN2  TWO MONTHS LATER, BUT WITHIN THE EXTENDED TIME,
PETITIONER FINALLY DECLINED TO PAY AND RESPONDENT BEGAN THIS ACTION. 
FN3 

IN ALL STAGES OF THE LITIGATION PETITIONER HAS CONTENDED THAT THE
STATUTE PROHIBITS MAINTENANCE OF THE ACTION, NOTWITHSTANDING ITS
AGREEMENT.  RESPONDENT HAS TAKEN THE CONTRARY VIEW, AS HAVE THE
CALIFORNIA DISTRICT COURT OF APPEAL, ONE JUDGE DISSENTING (124 P.2D
902), AND THE CALIFORNIA SUPREME COURT (21 CAL.2D 243, 131 P.2D 544). 
WE THINK PETITIONER'S POSITION MUST BE SUSTAINED.  IN SHORT THIS IS
THAT THE AGREEMENT IS INVALID AS BEING CONTRARY TO THE INTENT AND
EFFECT OF THE SECTION AND THE ACT. 

IN CLASSICAL STATEMENT, THE QUESTION HAS BEEN POSED AS WHETHER THE
IS THE FOUNDATION FOR THE CLAIM OR MERELY TO BAR THE REMEDY FOR ITS
ENFORCEMENT; FN4  AND IN THIS CASE, CONSISTENTLY WITH THE PATTERN, THE
DEBATE HAS MOVED BACK TO WHETHER THE CAUSE OF ACTION IS ONE CREATED BY
THE STATUTE OR ONE ARISING FROM THE COMMON LAW,  FN5  WITH THE
ATTRIBUTED CONSEQUENCE IN THE ONE CASE THAT THE BAR IS ABSOLUTE AND
INVARIABLE BY ANY ACT OF THE PARTIES, IN THE OTHER THAT IT MAY BE
WAIVED BY CONTRACT OR OTHERWISE.  FN6  PETITIONER URGES THAT THE
CARRIER'S COMMON LAW RIGHT TO COLLECT TRANSPORTATION CHARGES FROM THE
SHIPPER, WHICH WAS STRICTLY CONTRACTUAL, NO LONGER EXISTS, BUT HAS BEEN
REPLACED WITH ONE PRESCRIBED BY THE ACT.  THIS, IT SAYS, NOW FIXES THE
CHARACTER AND DIMENSIONS OF THE CARRIER'S RECOVERY, INCLUDING THE TIME
WITHIN WHICH IT MAY BE HAD.  RESPONDENT HOWEVER INSISTS THE ACT HAS NOT
SUPERSEDED, BUT HAS MERELY MODIFIED ITS COMMON LAW CONTRACTUAL RIGHT;
AND IN THIS RESPECT IT ASSERTS A DISTINCTION BETWEEN CASES, LIKE THIS
ONE, IN WHICH THE CARRIER SEEKS THE FULL AMOUNT OF THE TRANSPORTATION
CHARGES AND OTHERS IN WHICH THE SUIT IS FOR ONLY A PART OF THEM  FN7 OR
IN WHICH THE SHIPPER SUES THE CARRIER TO RECOVER EXCESS CHARGES PAID OR
DAMAGES FOR THE CHARGING OF UNREASONABLE RATES.  FN8 

WE DO NOT THINK THE DECISION SHOULD TURN ON REFINEMENTS OVER WHETHER
THE RESIDUUM OF FREEDOM TO CONTRACT WHICH THE ACT LEAVES TO THE PARTIES
OR THE QUANTUM OF RESTRICTION IT IMPOSES  FN9 CONSTITUTES THE GIST OF
THE ACTION.  ORIGIN OF THE RIGHT IS NOT PER SE CONCLUSIVE WHETHER THE
LIMITATION OF TIME "EXTINGUISHES" IT OR "MERELY BARS THE REMEDY" WITH
THE ACCEPTED ALTERNATIVE CONSEQUENCES RESPECTING WAIVER.  SOURCE IS
MERELY EVIDENTIARY, WITH OTHER FACTORS, OF LEGISLATIVE INTENT WHETHER
THE RIGHT SHALL BE ENFORCEABLE IN ANY EVENT AFTER THE PRESCRIBED TIME,
WHICH IS THE ULTIMATE QUESTION.  FN10  THE TEST OF CREATION MAY AID
WHEN ORIGIN IS CLEAR.  FN11  IT IS NOT CONCLUSIVE WHEN THE SOURCE IS
HYBRID, AS IS TRUE OF THE CARRIER'S CONTRACT, WHICH HAS BECOME A
COMPLEX OR RESULTANT OF THE FORMER FREEDOM OF CONTRACT AND STATUTORY
RESTRICTIONS.  IT DOES NOT FOLLOW FROM THE SURVIVAL OF THE COMMON LAW
ELEMENTS, AS RESPONDENT MAINTAINS, THAT CONGRESS DID NOT INTEND THE
LIMITATION TO BE ABSOLUTE.  AND THIS SEEMS IMPLIEDLY CONCEDED WHEN THE
DEBATE SHIFTS, AS IT HAS, TO WHETHER THE POLICY OF INTERSTATE COMMERCE
LEGISLATION CONTEMPLATES THE ONE RESULT OR THE OTHER.  THIS IS THE
CONTROLLING QUESTION.  RESPECTING IT THE CONSISTENT PATTERNS OF
LEGISLATION FOLLOWED IN THE ACT AND OF JUDICIAL DECISION IN TREATING
PROBLEMS OF TIME LIMITATION AND RELATED QUESTIONS ARISING UNDER IT
FURNISH THE MORE PERSUASIVE INDICIA OF CONGRESS' INTENTION. 

THE COMPREHENSIVE SCHEME OF REGULATION IT IMPOSES.  THE ACT IS AFFECTED
THROUGHOUT ITS PROVISIONS, WITH THE OBJECT NOT MERELY OF REGULATING THE
RELATIONS OF CARRIER AND SHIPPER INTER SE, BUT OF SECURING THE GENERAL
PUBLIC INTEREST IN ADEQUATE, NONDISCRIMINATORY TRANSPORTATION AT
REASONABLE RATES.  FN12  ACCORDINGLY, IN RESPECT TO MANY MATTERS
CONCERNING WHICH VARIATION IN ACCORDANCE WITH THE EXIGENCIES OF
PARTICULAR CIRCUMSTANCES MIGHT BE PERMISSIBLE, IF ONLY THE PARTIES'
PRIVATE INTERESTS OR EQUITIES WERE INVOLVED, RIGID ADHERENCE TO THE
STATUTORY SCHEME AND STANDARDS IS REQUIRED.  THIS "OBVIOUSLY MAY WORK
HARDSHIP IN SOME CASES, BUT IT EMBODIES THE POLICY WHICH HAS BEEN
ADOPTED BY CONGRESS IN THE REGULATION OF INTERSTATE COMMERCE IN ORDER
TO PREVENT UNJUST DISCRIMINATION."  LOUISVILLE & NASHVILLE R. CO. V.
MAXWELL, 237 U.S. 94, 97. 

WITH SETTING IN SUCH A STATUTE, SEC. 16 EXPRESSES THE SPECIFIC POLICY
OF THE ACT WITH REFERENCE TO THE ASSERTION OF STALE CLAIMS.  ON THE
TREATMENT, AS BETWEEN CARRIER AND SHIPPER.  THE SECTION CONTAINS NOT
ONE, BUT SEVERAL LIMITATIONS.  ALL ARE OF SHORT DURATION.  FN13  THEY
APPLY TO VARIOUS KINDS OF RELIEF ALLOWED IN RELATION TO MATTERS
GOVERNED BY THE ACT.  THESE INCLUDE PROCEEDINGS BEFORE THE COMMISSION
AND IN THE COURTS, BY BOTH SHIPPERS AND CARRIERS.  THE SEVERAL
PROVISIONS ARE CAST IN UNIFORM TERMS.  FN14  NOT ALL WERE BROUGHT INTO
THE SECTION AT THE SAME TIME.  BUT THE LEGISLATIVE HISTORY SHOWS A
CONSTANT TENDENCY TOWARD MAKING THEM UNIFORM IN TIME AND THE PURPOSE OF
PLACING THE CARRIER AND THE SHIPPER ON EQUAL TERMS IN THIS RESPECT. 
FN15  UPON THE FACE OF THE SECTION NOTHING SUGGESTS THAT THE
LIMITATIONS ARE TO BE GIVEN OTHER THAN IDENTICAL EFFECTS, EXCEPT AS THE
LANGUAGE SPECIFIES VARIATIONS.  IN PARTICULAR, CONTRARY TO RESPONDENT'S
CONTENTION, THERE IS NO INDICATION THAT, IN APPLYING THE SECTION, THE
CARRIER SHALL BE GIVEN AN ADVANTAGE NOT ALLOWED TO THE SHIPPER OR ONE,
IN SOME INSTANCES, WHEN THE CARRIER IS PLAINTIFF, WHICH IT CANNOT ENJOY
IN OTHERS.  RATHER, THE SECTION'S TERMS, PARTICULARLY IN SUBDIVISION
(A),  FN16  THEIR UNIFORMITY IN ALL THE LIMITATIONS, ITS LEGISLATIVE
HISTORY, AND ITS SETTING IN A STATUTE DESIGNED CERTAINLY AS MUCH FOR
THE SHIPPER'S AS FOR THE CARRIER'S BENEFIT AND IN SO MANY RESPECTS TO
AVOID DISCRIMINATORY PRACTICES AND EFFECTS, ALL POINT TO UNIFORM
CONSTRUCTION OF THE LIMITATIONS IMPOSED.  AND THIS, WE THINK, IS THE
EFFECT OF THE DECISIONS WHICH HAVE CONSTRUED THEM OR PREDECESSOR
PROVISIONS.  FN17 

WITH A SINGLE EXCEPTION, PENNSYLVANIA R. CO. V. SUSQUEHANNA
COLLIERIES CO., 23 F.2D 499(D.C.), THE FEDERAL COURTS HAVE NOT DECIDED
SQUARELY WHETHER AN AGREEMENT SUCH AS IS PRESENTED HERE IS VALID.  IN
THAT SUIT TO RECOVER DEMURRAGE CHARGES THE COURT SUSTAINED AND GAVE
EFFECT TO THE CONTRACT.  BUT WE THINK THIS IS CONTRARY TO THE GENERAL
COURSE OF DECISION WHICH HAS CONSTRUED THE SECTION AND PREDECESSOR
LIMITATIONS. 

WITH THE ONE EXCEPTION, THE DECISIONS HAVE FIXED THE PATTERN, IN
RESPECT TO A VARIETY OF ISSUES RELATING TO APPLICATION OF THE
LIMITATIONS, THAT LAPSE OF THE STATUTORY PERIOD "NOT ONLY BARS THE
REMEDY BUT DESTROYS THE LIABILITY."  THAT IS TRUE OF THIS COURT'S
DECISIONS  FN18  AND THOSE OF THE INFERIOR FEDERAL COURTS.  FN19  IT IS
TRUE OF SUITS BY SHIPPERS AGAINST CARRIERS AND OF SUITS BY CARRIERS
AGAINST SHIPPERS.  FN20  IT IS TRUE WITH RESPECT TO EVERY LIMITATION
IMPOSED BY SEC. 16, UNLESS THAT OF SUBDIVISION (A) IN FAVOR OF THE
CARRIER IS TO BE EXCEPTED WHEN ITS SUIT IS FOR THE FULL AMOUNT OF ITS
CHARGES, THOUGH NOT WHEN IT IS FOR ONLY PART OF THEM.  FN21 

THE PURPORT OF THE DECISIONS IS THAT CONGRESS INTENDED, WHEN THE
PERIOD HAS RUN, TO PUT AN END TO THE SUBSTANTIVE CLAIM AND THE
CORRESPONDING LIABILITY.  THE CAUSE OF ACTION, THE VERY FOUNDATION FOR
RELIEF, IS EXTINGUISHED.  THUS, IN A.J. PHILLIPS CO. V. GRAND TRUNK
WESTERN RY. CO., THIS COURT HELD THE OBJECTION TO THE TIMELINESS OF THE
SHIPPER'S SUIT PROPERLY WAS RAISED BY DEMURRER, AND SAID THAT "THE
LAPSE OF TIME  ...  DESTROYS THE LIABILITY  ...  WHETHER COMPLAINT IS
FILED WITH THE COMMISSION OR SUIT IS BROUGHT IN A COURT OF COMPETENT
JURISDICTION."  236 U.S. 662, 667.  AND IT ASSIGNED AS A REASON FOR
THIS VIEW "THE REQUIREMENTS OF UNIFORMITY WHICH, IN THIS AS IN SO MANY
OTHER INSTANCES MUST BE BORNE IN MIND IN CONSTRUING THE COMMERCE ACT,"
INCLUDING THE CARRIER'S OBLIGATIONS TO ADHERE TO THE LEGAL RATE, MAKE
ONLY LAWFUL REFUNDS, AND REFRAIN FROM DISCRIMINATING AMONG SHIPPERS "BY
SILENCE OR BY EXPRESS WAIVER, TO PRESERVE TO THE PHILLIPS COMPANY A
RIGHT OF ACTION WHICH THE STATUTE REQUIRED SHOULD BE ASSERTED WITHIN A
FIXED PERIOD."  IBID.  IN UNITED STATES EX REL. LOUISVILLE CEMENT CO.
V. INTERSTATE COMMERCE COMM'N, 246 U.S. 638, THE CONCEPTION OF THE
PHILLIPS CASE WAS APPLIED TO PROCEEDINGS BEFORE THE COMMISSION, AS THE
PHILLIPS OPINION HAD FORECAST.  THE COURT HELD THAT THE LIMITATION GOES
TO THE COMMISSION'S JURISDICTION, SO THAT ON THE ONE HAND IT HAS NO
POWER TO ACT WHEN THE TIME HAS EXPIRED, ON THE OTHER MANDAMUS WILL LIE
TO COMPEL EXERCISE OF THE JURISDICTION WHEN THE PERIOD HAS NOT PASSED. 
FN22  THE OTHER DECISIONS CITED ABOVE GIVE EFFECT TO THIS PATTERN IN
VARIOUS APPLICATIONS. 

RESPONDENT ATTEMPTS TO AVOID THE CONCLUSION TO WHICH THE PATTERN
POINTS BY URGING THAT WHEN THE CHOICE OF EXTENDING THE PERIOD IS THE
CARRIER'S RATHER THAN THE SHIPPER'S, OPPORTUNITIES FOR DISCRIMINATION
DISAPPEAR; AND THE POLICY OTHERWISE EMBEDDED IN SEC. 16 DOES NOT
REQUIRE ENFORCEMENT OF ITS TERMS.  RATHER, IT SAYS, TO ENFORCE THEM
WOULD VIOLATE THE VERY POLICY UPON WHICH THE PHILLIPS CASE BASED THE
CARRIER'S IMMUNITY TO SUIT AFTER THE PERIOD.  AND FURTHER TO SUPPORT
THIS VIEW, ESPECIALLY AS IT REQUIRES DISTINGUISHING RESULTS FAVORABLE
TO THE CARRIER FROM THOSE ADVERSE TO IT, IT IS SAID THE LEGISLATIVE
HISTORY OF THE INCORPORATION INTO SEC. 16 OF THE LIMITATION UPON THE
CARRIER'S RECOVERY OF ITS FULL CHARGES REQUIRES IT TO BE GIVEN A
DIFFERENT EFFECT FROM THAT GIVEN ALL OTHER LIMITATIONS CREATED BY THE

THE ARGUMENT IS INGENIOUS, BUT NOT CONVINCING.  IN THE ABSENCE OF
EXPLICIT DIRECTION, IT CANNOT BE ASSUMED OR INFERRED THAT CONGRESS
INTENDED TO ADOPT ONE POLICY FOR THE CARRIER AND ANOTHER FOR THE
SHIPPER, TO GIVE THE FORMER AN ABSOLUTE SHIELD, THE LATTER ONE
PENETRABLE BY ALL THE DEVICES AND OCCASIONS WHICH INTERRUPT OR EXTEND
THE PERIOD OF AN ORDINARY GENERAL STATUTE OF LIMITATIONS.  STILL LESS
CAN IT BE IMPLIED THAT CONGRESS INTENDED THE IDENTICAL PROVISION,
SUBDIVISION (A), TO WORK ONE WAY WHEN THE CARRIER SUES ONLY FOR PART,
ANOTHER WHEN IT SUES FOR THE WHOLE OF ITS CHARGES.  THAT IT IS
PROHIBITED TO DISCRIMINATE AMONG SHIPPERS, IN APPLYING THE SECTION'S
LIMITATIONS, DOES NOT MEAN THAT IN ADOPTING THEM CONGRESS INTENDED TO
DISCRIMINATE AGAINST ALL SHIPPERS IN FAVOR OF THE CARRIER.  NOR DOES IT
MEAN THE CARRIER MAY DISCRIMINATE AMONG SHIPPERS WHEN IT SUES FOR ALL,
BUT MAY NOT DO SO WHEN IT SUES FOR ONLY PART OF ITS CHARGES.  THE
FALLACY IS IN ASSUMING, FIRST, THAT THE SECTION REFLECTS ONLY THE ACT'S
GENERAL POLICY AGAINST DISCRIMINATION IN RESPECT TO RATES, REBATES,
ETC.; AND, SECOND, THAT THIS WOULD BE MADE EFFECTIVE BY TREATING THE
LIMITATION AS ABSOLUTE TO CUT OFF THE CARRIER'S LIABILITY, BUT VARIABLE
WHEN THE SHIPPER'S IS INVOLVED.  NEITHER ASSUMPTION IS TRUE. 

THAT THE SECTION DOES INVOLVE THE STATUTE'S GENERAL POLICY AGAINST
DISCRIMINATION IS CLEAR FROM THE OPINION IN THE PHILLIPS CASE AND
OTHERS CITED.  BUT THIS IS TRUE ONLY SO FAR AS THAT POLICY IS
CONSISTENT WITH THE PARTICULAR POLICY LAID DOWN BY THE SECTION, NAMELY,
THAT OF STRICTLY LIMITING THE TIME WITHIN WHICH CLAIMS MAY BE ASSERTED,
AS LIKEWISE APPEARS FROM THE DECISIONS.  IN THE PHILLIPS CASE, THERE
WAS NO APPARENT CLASH BETWEEN THE TWO POLICIES.  NOR IN THIS CASE IS
THERE MORE THAN AN APPARENT ONE. 

IT IS TRUE THE EFFECT OF HOLDING THE PERIOD INVARIABLE WILL BE, WHEN
IT HAS RUN, TO RELIEVE THE SHIPPER ENTIRELY OF PAYING; AND THUS THE
CARRIER, BY AGREEING NOT TO SUE UNTIL LATER, MAY IN EFFECT ALLOW THE
SHIPPER A PREFERENCE.  BUT IT HAS THIS WITHIN ITS CONTROL.  AND THE
SAME EFFECT MAY FOLLOW WHEN THE AMOUNT UNPAID IS ONLY A PART OF THE
TOTAL CHARGE.  IT MAY FOLLOW IN ANY CASE, WHETHER THE SUIT IS FOR ALL
OR MERELY PART, SINCE THE CARRIER, WITHOUT AGREEMENT, MAY NEGLECT OR
FAIL TO SUE AND THUS IN EFFECT ALLOW THE PREFERENCE.  LIKEWISE, WHEN
THE SHIPPER SUES, THE CARRIER MAY SUFFER JUDGMENT BY CONFESSION OR
DEFAULT AND SO, IN EFFECT, ACCOMPLISH THE "PREFERENCE," IF THE AMOUNT
CLAIMED IS MORE THAN IS RIGHTFULLY DUE THE SHIPPER.  WHEN IT IS THAT
AND NO MORE, ALLOWING THE CARRIER TO ESCAPE BY PLEADING THE BAR OF THE
STATUTE HAS THE EFFECT OF PERMITTING IT TO INFLICT A DISCRIMINATION, AS
RESPONDENT CONCEDES THE STATUTE REQUIRES.    THE CONCESSION DESTROYS
ITS CASE.  THE CONSEQUENCES FOR DISCRIMINATION ARE THE SAME, WHETHER
THE CARRIER OR THE SHIPPER SUES, SINCE IN THE ONE CASE IT MAY CREATE A
PREFERENCE BY FOREGOING SUIT, IN THE OTHER BY FAILING TO DEFEND.  AND
IT IS AS MUCH AN ANSWER, IN THE ONE CASE AS IN THE OTHER, THAT THE
CARRIER'S FAILURE TO ASSERT ITS RIGHTS WOULD VIOLATE ITS DUTY TO
COLLECT.  FN23  THAT DUTY, AND THE RESULTS OF FAILURE TO DISCHARGE IT,
MAY BE THE SAME, REGARDLESS OF WHETHER THE CARRIER SUES OR DEFENDS,
DEPENDING UPON WHETHER THE AMOUNT CLAIMED IS RIGHTFULLY DUE. 

THE PARAMOUNT POLICY OF SEC. 16 IS TO SECURE PROMPTNESS IN
COLLECTION.  THAT POLICY WOULD NOT BE PROMOTED BY CONSTRUING THE PERIOD
AS VARIABLE WHEN IT WORKS TO BAR THE CARRIER'S CLAIM BUT INVARIABLE
WHEN THE SHIPPER SUES.  NOR DOES A LEGISLATIVE HISTORY WHICH DISCLOSES
A PURPOSE TO PUT CARRIER AND SHIPPER IN EQUAL POSITION WITH REFERENCE
TO LIMITATIONS OF TIME SUSTAIN AN INFERENCE THAT THEY ARE TO BE GIVEN
EFFECTS FAVORABLE ONLY TO THE CARRIER. 

WE ARE NOT UNMINDFUL OF THE HARDSHIP TO RESPONDENT IN THE SPECIAL
CIRCUMSTANCES, THOUGH PETITIONER ASSERTS IT WOULD SUFFER EQUAL HARDSHIP
IF THE DECISION WERE THE OTHER WAY.  NOR DO WE IGNORE THE STRONG
EQUITABLE CONSIDERATIONS WHICH, IN RELATION TO OTHER TYPES OF
LEGISLATION NOT SO PERMEATED WITH PROVISIONS AND POLICIES FOR
PROTECTING THE GENERAL PUBLIC INTEREST, MIGHT MOVE AGAINST DENYING
EFFECT TO SUCH AN AGREEMENT.  BUT THIS CASE BOILS DOWN TO AN OLD ADAGE
ABOUT SAUCE AND GEESE, WHICH NEED NOT BE GIVEN CITATION. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  49 U.S.C. SEC. 16(3)(A), 43 STAT. 633.  OTHER PERTINENT PARTS OF
SEC. 16, AS IT WAS IN FORCE WHEN THIS CAUSE OF ACTION AROSE, WERE AS
FOLLOWS: 

"(3)(B)  ALL COMPLAINTS AGAINST CARRIERS SUBJECT TO THIS ACT FOR THE
RECOVERY OF DAMAGES NOT BASED ON OVERCHARGES SHALL BE FILED WITH THE
COMMISSION WITHIN TWO YEARS FROM THE TIME THE CAUSE OF ACTION ACCRUES,
AND NOT AFTER, SUBJECT TO SUBDIVISION (D). 

"(C)  FOR RECOVERY OF OVERCHARGES ACTION AT LAW SHALL BE BEGUN OR
COMPLAINT FILED WITH THE COMMISSION AGAINST CARRIERS SUBJECT TO THIS
ACT WITHIN THREE YEARS FROM THE TIME THE CAUSE OF ACTION ACCRUES, AND
NOT AFTER, SUBJECT TO SUBDIVISION (D), EXCEPT THAT IF CLAIM FOR THE
OVERCHARGE HAS BEEN PRESENTED IN WRITING TO THE CARRIER WITHIN THE
THREE-YEAR PERIOD OF LIMITATION SAID PERIOD SHALL BE EXTENDED TO
INCLUDE SIX MONTHS FROM THE TIME NOTICE IN WRITING IS GIVEN BY THE
CARRIER TO THE CLAIMANT OF DISALLOWANCE OF THE CLAIM, OR ANY PART OR
PARTS THEREOF, SPECIFIED IN THE NOTICE. 

"(D)  IF ON OR BEFORE EXPIRATION OF THE TWO-YEAR PERIOD OF LIMITATION
IN SUBDIVISION (B) OR OF THE THREE-YEAR PERIOD OF LIMITATION IN
SUBDIVISION (C) A CARRIER SUBJECT TO THIS ACT BEGINS ACTION UNDER
SUBDIVISION (A) FOR RECOVERY OF CHARGES IN RESPECT OF THE SAME
TRANSPORTATION SERVICE, OR, WITHOUT BEGINNING ACTION, COLLECTS CHARGES
IN RESPECT OF THAT SERVICE, SAID PERIOD OF LIMITATION SHALL BE EXTENDED
TO INCLUDE NINETY DAYS FROM THE TIME SUCH ACTION IS BEGUN OR SUCH
CHARGES ARE COLLECTED BY THE CARRIER." 

AS TO THE SECTION'S LEGISLATIVE HISTORY, INCLUDING CHANGES MADE SINCE
THIS SUIT AROSE, SEE NOTE 15 INFRA. 

FN2  AFTER VARIOUS RECITALS INCLUDING ONE FIXING THE TIME WITHIN
WHICH THE DEFERRED SUIT MIGHT BE BROUGHT, THE AGREEMENT PROVIDED: 

"NOW THEREFORE IN CONSIDERATION OF THE FORBEARANCE OF THE
PENNSYLVANIA RAILROAD COMPANY TO BRING SUCH A SUIT AGAINST THE MID
STATE HORTICULTURAL COMPANY, INC. PRIOR TO OCTOBER 28, 1935, THE SAID
MID STATE HORTICULTURAL COMPANY, INC. HEREBY AGREES THAT IF AND WHEN
THE PENNSYLVANIA RAILROAD COMPANY MAY FIND IT NECESSARY TO BRING SUCH
AN ACTION, IT, THE SAID MID STATE HORTICULTURAL COMPANY, INC., WILL NOT
PLEAD IN ANY SUCH SUIT THE DEFENSE OF ANY GENERAL OR SPECIAL STATUTE OF
LIMITATIONS.  ...  " 

FN3  THE FOLLOWING ADDITIONAL FACTS REVEAL MORE OF THE FULL CHARACTER
OF THE CONTROVERSY: 

IN ACCORDANCE WITH PETITIONER'S DIVERSION ORDERS, RESPONDENT
DELIVERED THE SHIPMENTS TO JEROME DISTRIBUTING COMPANY IN OCTOBER AND
NOVEMBER, 1932.  JEROME GAVE RESPONDENT ITS CHECKS TO COVER THE FREIGHT
AND RECEIVED RECEIPTED FREIGHT BILLS, WHICH IT USED TO OBTAIN A
SETTLEMENT OF ACCOUNTS WITH PETITIONER THE LATTER SAYS IT WOULD NOT
HAVE MADE WITHOUT THEM.  THE CHECKS WERE DISHONORED ON PRESENTMENT FOR
PAYMENT.  THEREAFTER RESPONDENT SOUGHT WITHOUT SUCCESS TO COLLECT FROM
JEROME.  IT SUED AND OBTAINED A JUDGMENT WHICH IT COULD NOT SATISFY
BECAUSE OF JEROME'S INSOLVENCY. 

THE TIME FOR SUING ON ACCOUNT OF THE FIRST SHIPMENT EXPIRED OCTOBER
28, 1935.  SOME TIME BEFORE THIS, RESPONDENT APPARENTLY THREATENED TO
SUE PETITIONER AND THE LATTER REQUESTED TIME TO INVESTIGATE. 
RESPONDENT ACCEDED, AND ON OCTOBER 25, 1935, PETITIONER EXECUTED THE
AGREEMENT NOT TO PLEAD THE STATUTE. 

FN4  THE INQUIRY TRADITIONALLY IS CAST IN THIS MOLD REGARDLESS OF
WHETHER THE ULTIMATE QUESTION CONCERNS SUCH VARIED PROBLEMS AS THE
PROPRIETY OF INVOKING THE LEX FORI RATHER THAN THE LEX LOCI, OF WAIVING
THE DEFENSE OR ESTOPPING THE DEFENDANT FROM ASSERTING IT, OR OF
EXTENDING THE PERIOD OF LIMITATION AFTER IT HAS ONCE LAPSED.  SEE,
E.G., STORY, CONFLICT OF LAWS (8TH ED.)  SEC.  582; BEALE, CONFLICT OF
LAWS (1935) SECS. 604, 605; GOODRICH, CONFLICT OF LAWS (1927) SECS. 85,
86; AILES, LIMITATION OF ACTIONS AND THE CONFLICT OF LAWS, 31 MICH. L.
REV. 474; BEMENT V. GRAND RAPIDS & INDIANA RY. CO., 194 MICH. 64, 160
N.W. 424; GAUTHIER V. ATCHISON, T. & S.F. RY. CO., 176 WIS. 245, 186
N.W. 619; MCLEARN V. HILL, 276 MASS. 519, 177 N.E. 617; DANZER & CO. V.
GULF & SHIP ISLAND R. CO., 268 U.S. 633. 

FN5  CHARACTERISTICALLY THE INQUIRY FOLLOWS THIS COURSE TOO, HOWEVER
DIVERSE THE ULTIMATE QUESTIONS, IN ACTIONS UNDER WRONGFUL DEATH
STATUTES, THE FEDERAL EMPLOYERS' LIABILITY ACT, OR DIRECTORS' LIABILITY
STATUTES, WHETHER THE LIMITATION IS IMPOSED IN THE ACT CREATING THE
LIABILITY OR A DIFFERENT ONE.  SEE NOTE 4 SUPRA AND CF. DAVIS V. MILLS,
194 U.S. 451. 

FN6 COMPARE, E.G., BEMENT V. GRAND RAPIDS & INDIANA RY. CO., 194
MICH. 64, 160 N.W. 424, WITH MCLEARN V. HILL, 276 MASS. 519, 177 N.E.
617. 

FN7  E.G., WISCONSIN BRIDGE & IRON CO. V. ILLINOIS TERMINAL CO., 88
F.2D 459(C.C.A.); CF. BUTTON V. ATCHISON, T. & S.F. RY. CO., 1 F.2D
709(C.C.A.); GALVESTON, H. & S.A. RY. CO. V. WEBSTER CO., 27 F.2D
765(D.C.). 

FN8  E.G., A.J. PHILLIPS CO. V. GRAND TRUNK WESTERN RY. CO., 236 U.S.
662; KANSAS CITY SOUTHERN RY. CO. V. WOLF, 261 U.S. 133. 

FN9  CF. LOUISVILLE & NASHVILLE R. CO. V. CENTRAL IRON & COAL CO.,
265 U.S. 59; ALTON R. CO. V. GILLARDE, 379 ILL. 308; PENNSYLVANIA R.
CO. V. LORD & SPENCER, 295 MASS. 179, 3 N.E.2D 213; GALVESTON, H. &
S.A. RY. CO. V. WEBSTER CO., 27 F.2D 765(D.C.). 

FN10  DAVIS V. MILLS, 194 U.S. 451, 454; SEE ALSO GREGORY V. SOUTHERN
PACIFIC CO., 157 F. 113(C.C.D. ORE.); OSBORNE V. GRAND TRUNK RY. CO.,
87 VT. 104, 88 A. 512. 

FN11  IBID. 

FN12  CF. PITTSBURGH, C., C. & ST. L. RY. CO. V. FINK, 250 U.S. 577;
LOUISVILLE & NASHVILLE R. CO. V. MAXWELL, 237 U.S. 94; ARKANSAS
FERTILIZER CO. V. UNITED STATES, 193 F. 667(COMMERCE COURT). 

FN13  THE UNIFORM PERIOD IS NOW TWO YEARS.  CF. NOTE 15 INFRA. 

FN14  ALL FOLLOW THE FORMULA "WITHIN - YEARS, BUT NOT AFTER." 
RESPONDENT RIGHTLY SAYS THE FORMULA ITSELF, PARTICULARLY AS IT INCLUDES
"AND NOT AFTER," IS NOT CONCLUSIVE, SINCE IT HAS RECEIVED DIFFERENT
CONSTRUCTIONS IN RESPECT TO THE PRESENT ISSUE.  THUS, THE PHRASE
APPEARED IN THE EARLIEST ENGLISH GENERAL STATUTES OF LIMITATIONS, CF. 7
CHITTY'S ENGLISH STATUTES (6TH ED.)  618-619, 619-625; AND IS FOUND
FREQUENTLY IN STATE STATUTES WITHOUT HAVING THE EFFECT TO OUTLAW
WAIVERS.  CF. BEWLEY V. POWER, HAYES & JONES EXCH.  REP.  368(1833);
CRANE V. ABEL, 67 MICH. 242, 34 N.W. 658; IN RE ESTATE OF KING, 94
MICH. 411, 54 N.W. 178; DICKSON V. SLATER STEEL RIG CO., 138 OKLA. 238,
280 P. 817.  ON THE OTHER HAND, SPECIAL STATUTES EMPLOYING THE PHRASE
HAVE RECEIVED OPPOSING CONSTRUCTIONS.  CF. THE STATE WRONGFUL DEATH
STATUTE INVOLVED IN THE HARRISBURG, 119 U.S. 199.  SEE GENERALLY 132
A.L.R. 292 ET SEQ. 

FN15  FOR THE SUCCESSION OF ENACTMENTS BY WHICH SEC. 16(3) ASSUMED
ITS PRESENT FORM SEE 34 STAT. 590; 41 STAT. 491-2; 43 STAT. 633; 54
STAT. 912-13; CF. 49 U.S.C.A. SEC. 16(3), HISTORICAL NOTE.  BRIEFLY,
SEC. 16(3)(A) WAS ENACTED FIRST AS PART OF THE TRANSPORTATION ACT OF
1920, 41 STAT. 491-2.  PREVIOUSLY STATE STATUTES SUPPLIED LIMITATIONS
UPON CARRIERS' SUITS FOR THEIR CHARGES, CF. BUTTON V. ATCHISON, T. &
S.F. RY. CO., 1 F.2D 709, AND UPON CERTAIN SHIPPERS' SUITS AGAINST
CARRIERS (NOT BASED UPON AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION), CF. LOUISIANA & WESTERN R. CO. V. GARDINER, 273 U.S. 280. 
CONCURRENTLY FROM 1906 THE HEPBURN ACT (34 STAT. 590) SUPPLIED
LIMITATIONS UPON SHIPPERS' ASSERTION OF CLAIMS FOR DAMAGES BEFORE THE
INTERSTATE COMMERCE COMMISSION AND IN SUITS TO ENFORCE ITS ORDERS. 
7, 1924, 43 STAT. 633; ALTHOUGH AFTER THIS ACTION WAS BROUGHT THE
TRANSPORTATION ACT OF 1940, 54 STAT. 912-13, REDUCED THE PERIOD FOR
CARRIERS' SUITS FROM THREE TO TWO YEARS, TO MAKE IT CONFORM FINALLY
WITH THE TIME ALLOWED SHIPPERS FOR TESTING THE REASONABLENESS OF THE
CARRIER'S RATE, ETC.  FROM 1920 TO 1940 THIS CONFORMITY HAD BEEN
ACHIEVED BY EXTENDING THE TIME FOR SHIPPERS' PROCEEDINGS WHERE THE
CARRIER IN DUE SEASON BEGAN SUIT TO RECOVER ITS CHARGES.  CF. 43. 
STAT.  633, SEC. 16(3)(D). 

FN16  THE SUBDIVISION APPLIES A SINGLE LIMITATION TO "ALL ACTIONS AT
LAW BY CARRIERS," WHETHER "FOR RECOVERY OF THEIR CHARGES, OR ANY PART
THEREOF."  CF. NOTE 1 SUPRA. 

FN17  CF. NOTE 15 SUPRA. 

FN18  CF., E.G., A.J.PHILLIPS CO. V. GRAND TRUNK WESTERN RY. CO., 236
U.S. 662; UNITED STATES EX REL. LOUISVILLE CEMENT CO. V. INTERSTATE
COMMERCE COMM'N, 246 U.S. 638; KANSAS CITY SOUTHERN RY. CO. V. WOLF,
261 U.S. 133; WILLIAM DANZER & CO. V. GULF & SHIP ISLAND R. CO., 268
U.S. 633. 

FN19  CF. WISCONSIN BRIDGE & IRON CO. V. ILLINOIS TERMINAL CO., 88
F.2D 459(C.C.A.); BUTTON V. ATCHISON, T. & S.F. RY. CO., 1 F.2D
709(C.C.A.); PENNSYLVANIA R. CO. V. CAROLINA PORTLAND CEMENT CO., 16
F.2D 760(C.C.A.). 

FN20  CF. NOTES 18, 19 SUPRA. 

FN21  CF. NOTE 7 SUPRA. 

FN22  THE LATTER WAS THE PARTICULAR RESULT IN THE CASE, SINCE THE
COURT FOUND THE PERIOD HAD NOT RUN PRIOR TO BEGINNING OF THE
PROCEEDING. 

FN23  CF. A.J. PHILLIPS CO. V. GRAND TRUNK WESTERN RY. CO., 236 U.S.
662, 667-668; ARKANSAS FERTILIZER CO. V. UNITED STATES, 193 F. 667,
671(COMMERCE COURT). 
..END :
























MERCHANTS BANK V. COMMISSIONER, 320 U.S. 256 


NO. 30.  ARGUED OCTOBER 19, 1943.  - DECIDED NOVEMBER 15, 1943.  - 132
F.2D 483, AFFIRMED. 


1.  SECTION 303(A)(3) OF THE REVENUE ACT OF 1926, WHICH ALLOWS
DEDUCTION FOR ESTATE TAX PURPOSES OF AMOUNTS BEQUEATHED TO OR FOR THE
USE OF CHARITIES, WAS VALIDLY IMPLEMENTED BY TREASURY REGULATIONS
80(1934 ED.), ARTS. 44 AND 47, WHICH PROVIDE THAT, WHERE A TRUST IS
CREATED FOR BOTH CHARITABLE AND PRIVATE PURPOSES, THE CHARITABLE
BEQUEST, TO BE DEDUCTIBLE, MUST HAVE AT THE TESTATOR'S DEATH A VALUE
"PRESENTLY ASCERTAINABLE, AND HENCE SEVERABLE FROM THE INTEREST IN
FAVOR OF THE PRIVATE USE," AND FURTHER, TO THE EXTENT THAT THERE IS A
POWER IN A PRIVATE DONEE OR TRUSTEE TO DIVERT THE PROPERTY FROM THE
CHARITY, "DEDUCTION WILL BE LIMITED TO THAT PORTION, IF ANY, OF THE
PROPERTY OR FUND WHICH IS EXEMPT FROM AN EXERCISE OF SUCH POWER."  P.
260. 

2.  UNDER A TRUST CREATED BY WILL, THE INCOME WAS TO BE PAID TO THE
TESTATOR'S WIDOW FOR LIFE, AND ON HER DEATH ALL BUT A SPECIFIED AMOUNT
OF THE PRINCIPAL WAS TO GO TO DESIGNATED CHARITIES.  THE TRUSTEE WAS
AUTHORIZED, IN HIS DISCRETION, TO INVADE THE CORPUS FOR THE "COMFORT,
SUPPORT, MAINTENANCE, AND/OR HAPPINESS" OF THE WIDOW, AND WAS DIRECTED
TO EXERCISE THAT DISCRETION WITH LIBERALITY TOWARDS THE WIDOW AND TO
CONSIDER HER "WELFARE, COMFORT AND HAPPINESS PRIOR TO CLAIMS OF
RESIDUARY BENEFICIARIES," I.E., THE CHARITIES.  IN 1937 THE TRUST
REALIZED GAINS FROM THE SALE OF SECURITIES.  HELD: 

(1)  A DEDUCTION UNDER SEC. 303(A)(3) OF THE REVENUE ACT OF 1926, FOR
PURPOSES OF THE FEDERAL ESTATE TAX, WAS PROPERLY DISALLOWED.  P. 261. 

(2)  A DEDUCTION FOR FEDERAL INCOME TAX PURPOSES, UNDER SEC. 162(A)
OF THE REVENUE ACT OF 1936, WICH PERMITS A DEDUCTION OF THAT PART OF
GROSS INCOME "WHICH PURSUANT TO THE TERMS OF THE WILL ...  IS DURING
THE TAXABLE YEAR  ...  PERMANENTLY SET ASIDE" FOR CHARITABLE PURPOSES,
WAS PROPERLY DISALLOWED.  P. 263. 

MERCHANTS NATIONAL BANK OF BOSTON, EXECUTOR, V. COMMISSIONER OF
INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 319 U.S. 734, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 45 B.T.A. 270, WHICH SET ASIDE A DETERMINATION OF
DEFICIENCIES IN INCOME AND ESTATE TAXES. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

OZRO M. FIELD DIED IN MASSACHUSETTS IN 1936, LEAVING A GROSS ESTATE
OF SOME $366,000.  IN HIS WILL HE PROVIDED, AFTER CERTAIN MINOR
BEQUESTS, THAT THE RESIDUE OF HIS ESTATE BE HELD IN TRUST, THE INCOME
TO GO TO HIS WIFE FOR LIFE, AND ON HER DEATH ALL BUT $100,000 OF THE
PRINCIPAL  FN1 TO GO "FREE AND DISCHARGED OF THIS TRUST" TO CERTAIN
NAMED CHARITIES.  UNDER THE TRUST SET UP BY THE WILL, THE TRUSTEE,
PETITIONER HERE, WAS AUTHORIZED TO INVADE THE CORPUS "AT SUCH TIME OR
TIMES AS MY SAID TRUSTEE SHALL IN ITS SOLE DISCRETION DEEM WISE AND
PROPER FOR THE COMFORT, SUPPORT, MAINTENANCE, AND/OR HAPPINESS OF MY
SAID WIFE, AND IT IS MY WISH AND WILL THAT IN THE EXERCISE OF ITS
DISCRETION WITH REFERENCE TO SUCH PAYMENTS FROM THE PRINCIPAL OF THE
TRUST FUND TO MY SAID WIFE, MAY L. FIELD, MY SAID TRUSTEE SHALL
EXERCISE ITS DISCRETION WITH LIBERALITY TO MY SAID WIFE, AND CONSIDER
HER WELFARE, COMFORT AND HAPPINESS PRIOR TO CLAIMS OF RESIDUARY
BENEFICIARIES UNDER THIS TRUST." 

IN 1937 THE TRUST REALIZED GAINS OF $100,900.31 FROM THE SALE OF
SECURITIES IN ITS PORTFOLIO. 

IN FILING ESTATE AND INCOME TAX RETURNS PETITIONER, WHICH WAS ALSO
MR. FIELD'S EXECUTOR, SOUGHT TO DEDUCT $128,276.94 FROM THE GROSS
ESTATE AND THE $100,900.31 FROM THE 1937 INCOME OF THE TRUST, ON THE
THEORY THAT THOSE SUMS CONSTITUTED PORTIONS OF A DONATION TO CHARITY
AND WERE THEREFORE DEDUCTIBLE RESPECTIVELY UNDER SEC. 303(A)(3) OF THE
REVENUE ACT OF 1926(44 STAT. 72)  FN2  AND SEC. 162(A) OF THE REVENUE
ACT OF 1936(49 STAT. 1706).  FN3 

THE COMMISSIONER DISALLOWED THE DEDUCTIONS AND DETERMINED
DEFICIENCIES OF $26,290.93 IN ESTATE TAX AND $42,825.69 IN INCOME TAX
FOR 1937, BUT ON THE TAXPAYER'S PETITION FOR REVIEW THE BOARD OF TAX
APPEALS (NOW THE TAX COURT) UPHELD THE LATTER'S CONTENTIONS.  THE COURT
OF APPEALS REVERSED THE BOARD OF TAX APPEALS, 132 F.2D 483, AND WE
GRANTED CERTIORARI BECAUSE OF AN ASSERTED CONFLICT WITH DECISIONS OF
OTHER CIRCUIT COURTS  FN4  AND THIS COURT.  FN5  319 U.S. 734. 

THERE IS NO QUESTION THAT THE REMAINDERMEN HERE WERE CHARITIES.  THE
CASE, AT LEAST UNDER SEC. 303(A)(3), TURNS ON WHETHER THE BEQUESTS TO
THE CHARITIES HAVE, AS OF THE TESTATOR'S DEATH, A "PRESENTLY
ASCERTAINABLE" VALUE OR, PUT ANOTHER WAY, ON WHETHER, AS OF THAT TIME,
THE EXTENT TO WHICH THE WIDOW WOULD DIVERT THE CORPUS FROM THE
CHARITIES COULD BE MEASURED ACCURATELY. 

ALTHOUGH CONGRESS, IN PERMITTING ESTATE TAX DEDUCTIONS FOR CHARITABLE
BEQUESTS, USED THE LANGUAGE OF OUTRIGHT TRANSFER, IT APPARENTLY
ENVISAGED DEDUCTIONS IN SOME CIRCUMSTANCES WHERE CONTINGENCIES, NOT
RESOLVED AT THE TESTATOR'S DEATH, CREATE THE POSSIBILITY THAT ONLY A
CALCULABLE PORTION OF THE BEQUEST MAY REACH ULTIMATELY ITS CHARITABLE
DESTINATION.  FN6  THE TREASURY HAS LONG ACCOMMODATED THE
ADMINISTRATION OF THE SECTION TO THE NARROW LEEWAY THUS ALLOWED TO
CHARITABLE DONORS WHO WISH TO COMBINE SOME PRIVATE BENEFACTION WITH
THEIR CHARITABLE GIFTS.  THE LIMIT OF PERMISSIBLE CONTINGENCIES HAS
BEEN BLOCKED OUT IN A MORE CONVENIENT ADMINISTRATIVE FORM IN TREASURY
REGULATIONS WHICH PROVIDE THAT, WHERE A TRUST IS CREATED FOR BOTH
CHARITABLE AND PRIVATE PURPOSES THE CHARITABLE BEQUEST, TO BE
DEDUCTIBLE, MUST HAVE, AT THE TESTATOR'S DEATH, A VALUE "PRESENTLY
ASCERTAINABLE, AND HENCE SEVERABLE FROM THE INTEREST IN FAVOR OF THE
PRIVATE USE,"  FN7  AND FURTHER, TO THE EXTENT THAT THERE IS A POWER IN
A PRIVATE DONEE OR TRUSTEE TO DIVERT THE PROPERTY FROM THE CHARITY,
"DEDUCTION WILL BE LIMITED TO THAT PORTION, IF ANY, OF THE PROPERTY OR
FUND WHICH IS EXEMPT FROM AN EXERCISE OF SUCH POWER."  FN8  THESE
REGULATIONS ARE APPROPRIATE IMPLEMENTATIONS OF SEC. 303(A)(3), AND,
HAVING BEEN IN EFFECT UNDER SUCCESSIVE REENACTMENTS OF THAT PROVISION,
DEFINE THE FRAMEWORK OF THE INQUIRY IN CASES OF THIS SORT.  CF.
HELVERING V. WINMILL, 305 U.S. 79; TAFT V. COMMISSIONER, 304 U.S. 351. 

WHATEVER MAY BE SAID WITH RESPECT TO COMPUTING THE PRESENT VALUE OF
THE BEQUEST OF THE TESTATOR WHO DILUTES HIS CHARITY ONLY TO THE EXTENT
OF FIRST AFFORDING SPECIFIC PRIVATE LEGATEES THE USUFRUCT OF HIS
PROPERTY FOR A FIXED PERIOD, A DIFFERENT PROBLEM IS PRESENTED BY THE
TESTATOR WHO, PREFERRING TO INSURE THE COMFORT AND HAPPINESS OF HIS
PRIVATE LEGATEES, HEDGES HIS PHILANTHROPY, AND PERMITS INVASION OF THE
CORPUS FOR THEIR BENEFIT.  AT THE VERY LEAST A POSSIBILITY THAT PART OF
THE PRINCIPAL WILL BE USED IS THEN CREATED, AND THE PRESENT VALUE OF
THE REMAINDER WHICH THE CHARITY WILL RECEIVE BECOMES LESS READILY
ASCERTAINABLE.  NOT INFREQUENTLY THE STANDARDS BY WHICH THE EXTENT OF
PERMISSIBLE DIVERSION OF CORPUS IS TO BE MEASURED EMBRACE FACTORS WHICH
CANNOT BE ACCOUNTED FOR ACCURATELY BY RELIABLE STATISTICAL DATA AND
TECHNIQUES.  SINCE, THEREFORE, NEITHER THE AMOUNT WHICH THE PRIVATE
BENEFICIARY WILL USE NOR THE PRESENT VALUE OF THE GIFT CAN BE COMPUTED,
DEDUCTION IS NOT PERMITTED.  CF. HUMES V. UNITED STATES, 276 U.S. 487. 

FOR A DEDUCTION UNDER SEC. 303(A)(3) TO BE ALLOWED, CONGRESS AND THE
TREASURY REQUIRE THAT A HIGHLY RELIABLE APPRAISAL OF THE AMOUNT THE
CHARITY WILL RECEIVE BE AVAILABLE, AND MADE, AT THE DEATH OF THE
TESTATOR.  ROUGH GUESSES, APPROXIMATIONS, OR EVEN THE RELATIVELY
ACCURATE VALUATIONS ON WHICH THE MARKET PLACE MIGHT BE WILLING TO ACT
ARE NOT SUFFICIENT.  CF. HUMES V. UNITED STATES, 276 U.S. 487, 494. 
ONLY WHERE THE CONDITIONS ON WHICH THE EXTENT OF INVASION OF THE CORPUS
DEPENDS ARE FIXED BY REFERENCE TO SOME READILY ASCERTAINABLE AND
RELIABLY PREDICTABLE FACTS DO THE AMOUNT WHICH WILL BE DIVERTED FROM
THE CHARITY AND THE PRESENT VALUE OF THE BEQUEST BECOME ADEQUATELY
MEASURABLE.  AND, IN THESE CASES, THE TAXPAYER HAS THE BURDEN OF
ESTABLISHING THAT THE AMOUNTS WHICH WILL EITHER BE SPENT BY THE PRIVATE
BENEFICIARY OR REACH THE CHARITY ARE THUS ACCURATELY CALCULABLE.  CF.
BANK OF AMERICA ASSN. V. COMMISSIONER, 126 F.2D 48(C.C.A.). 

IN THIS CASE THE TAXPAYER COULD NOT SUSTAIN THAT BURDEN.  DECEDENT'S
WILL PERMITTED INVASION OF THE CORPUS OF THE TRUST FOR "THE COMFORT,
SUPPORT, MAINTENANCE AND/OR HAPPINESS OF MY WIFE."  IT ENJOINED THE
TRUSTEE TO BE LIBERAL IN THE MATTER, AND TO CONSIDER HER "WELFARE,
COMFORT AND HAPPINESS PRIOR TO THE CLAIMS OF RESIDUARY BENEFICIARIES,"
I.E., THE CHARITIES. 

UNDER THIS WILL THE EXTENT TO WHICH THE PRINCIPAL MIGHT BE USED WAS
NOT RESTRICTED BY A FIXED STANDARD BASED ON THE WIDOW'S PRIOR WAY OF
LIFE.  COMPARE ITHACA TRUST CO. V. UNITED STATES, 279 U.S. 151.  HERE,
FOR EXAMPLE, HER "HAPPINESS" WAS AMONG THE FACTORS TO BE CONSIDERED BY
THE TRUSTEE.  THE SUMS WHICH HER HAPPINESS MIGHT REQUIRE TO BE EXPENDED
ARE OF COURSE AFFECTED BY THE FACT THAT THE TRUST INCOME WAS NOT
INSUBSTANTIAL AND THAT SHE WAS SIXTY-SEVEN YEARS OLD WITH SUBSTANTIAL
INDEPENDENT MEANS AND NO DEPENDENT CHILDREN.  FN9  AND THE LAWS OF
MASSACHUSETTS MAY RESTRICT THE EXERCISE OF THE TRUSTEE'S DISCRETION
SOMEWHAT MORE NARROWLY THAN A LIBERAL READING OF THE WILL WOULD
SUGGEST, ALTHOUGH THAT IS DOUBTFUL.  CF. DANA V. DANA, 185 MASS. 156,
70 N.E. 49, AND COMPARE SPARHAWK V. GOLDTHWAITE, 225 MASS. 414, 114
N.E. 718.  INDEED ONE MIGHT WELL "GUESS, OR GAMBLE  ...,  OR EVEN
INSURE AGAINST" THE PRINCIPAL BEING EXPENDED HERE.  CF. HUMES V. UNITED
STATES, SUPRA.  BUT CONGRESS HAS REQUIRED A MORE RELIABLE MEASURE OF
POSSIBLE EXPENDITURES AND PRESENT VALUE THAN IS NOW AVAILABLE FOR
COMPUTING WHAT THE CHARITY WILL RECEIVE.  THE SALIENT FACT IS THAT THE
PURPOSES FOR WHICH THE WIDOW COULD, AND MIGHT WISH TO HAVE THE FUNDS
SPENT DO NOT LEND THEMSELVES TO RELIABLE PREDICTION.  FN10  THIS IS NOT
A "STANDARD FIXED IN FACT AND CAPABLE OF BEING STATED IN DEFINITE TERMS
OF MONEY."  CF. ITHACA TRUST CO. V. UNITED STATES, SUPRA. INTRODUCING
THE ELEMENT OF THE WIDOW'S HAPPINESS AND INSTRUCTING THE TRUSTEE TO
EXERCISE ITS DISCRETION WITH LIBERALITY TO MAKE HER WISHES PRIOR TO THE
CLAIMS OF RESIDUARY BENEFICIARIES BROUGHT INTO THE CALCULATION ELEMENTS
OF SPECULATION TOO LARGE TO BE OVERCOME, NOTWITHSTANDING THE WIDOW'S
PREVIOUS MODE OF LIFE WAS MODEST AND HER OWN RESOURCES SUBSTANTIAL.  WE
CONCLUDE THAT THE COMMISSIONER PROPERLY DISALLOWED THE DEDUCTION FOR
ESTATE TAX PURPOSES. 

THE DEDUCTION FOR INCOME TAX PURPOSES STANDS ON NO BETTER FOOTING. 
CONGRESS PERMITTED A DEDUCTION OF THAT PART OF GROSS INCOME "WHICH
PURSUANT TO THE TERMS OF THE WILL  ...  IS DURING THE TAXABLE YEAR  ...
PERMANENTLY SET ASIDE" FOR CHARITABLE PURPOSES.  IN VIEW OF THE
EXPLICIT REQUIREMENT THAT THE INCOME BE PERMANENTLY SET ASIDE, THERE IS
CERTAINLY NO MORE OCCASION HERE THAN IN THE CASE OF THE ESTATE TAX TO
PERMIT DEDUCTION OF SUMS WHOSE ULTIMATE CHARITABLE DESTINATION IS SO
UNCERTAIN. 

ACCORDINGLY, THE DECISION OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  THE $100,000 WAS TO REMAIN IN TRUST, THE INCOME TO GO IN EQUAL
SHARES TO HIS THREE ADOPTED CHILDREN AND A NIECE OF HIS WIFE, AND ON
THE DEATH OF THE LAST OF THESE BENEFICIARIES THE CORPUS WAS ALSO TO GO
TO THE NAMED CHARITIES. 

FN2  SECTION 303 PROVIDES: 

"FOR THE PURPOSE OF THE TAX THE VALUE OF THE NET ESTATE SHALL BE
DETERMINED - 

"(A)  IN THE CASE OF A RESIDENT, BY DEDUCTING FROM THE VALUE OF THE
GROSS ESTATE - 

     .         .         . .         . 

"(3)  THE AMOUNT OF ALL BEQUESTS, LEGACIES, DEVISES, OR TRANSFERS, TO
OR FOR THE USE OF THE UNITED STATES, ANY STATE, TERRITORY, ANY
POLITICAL SUBDIVISION THEREOF, OR THE DISTRICT OF COLUMBIA, FOR
EXCLUSIVELY PUBLIC PURPOSES, OR TO OR FOR THE USE OF ANY CORPORATION
ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE,
SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES,  ..." 

FN3  SECTION 162 PROVIDES: 

"THE NET INCOME OF THE ESTATE OR TRUST SHALL BE COMPUTED IN THE SAME
MANNER AND ON THE SAME BASIS AS IN THE CASE OF AN INDIVIDUAL, EXCEPT
THAT - 

"(A)  THERE SHALL BE ALLOWED AS A DEDUCTION (IN LIEU OF THE DEDUCTION
FOR CHARITABLE, ETC., CONTRIBUTIONS AUTHORIZED BY SECTION 23(O)) ANY
PART OF THE GROSS INCOME, WITHOUT LIMITATION, WHICH PURSUANT TO THE
TERMS OF THE WILL OR DEED CREATING THE TRUST, IS DURING THE TAXABLE
YEAR PAID OR PERMANENTLY SET ASIDE FOR THE PURPOSES AND IN THE MANNER
SPECIFIED IN SECTION 23(O), OR IS TO BE USED EXCLUSIVELY FOR RELIGIOUS,
CHARITABLE, SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES.  ..." 

FN4  COMPARE THE DECISION BELOW WITH HARTFORD-CONNECTICUT TRUST CO.
V. EATON, 36 F.2D 710(C.C.A.2D); FIRST NATIONAL BANK V. SNEAD, 24 F.2D
186(C.C.A.5TH); LUCAS V. MERCANTILE TRUST CO., 43 F.2D 39(C.C.A.8TH);
COMMISSIONER V. BANK OF AMERICA ASSN., 133 F.2D 753(C.C.A.9TH);
COMMISSIONER V. F.G. BONFILS TRUST, 115 F.2D 788(C.C.A. 10TH). 

FN5  SEE ITHACA TRUST CO. V. UNITED STATES, 279 U.S. 151. 

FN6  E.G., THE NOT UNUSUAL CASE OF A BEQUEST OF INCOME FOR LIFE
INTERVENING BETWEEN THE TESTATOR AND THE CHARITY, REQUIRING
COMPUTATION, WITH THE AID OF RELIABLE ACTUARIAL TECHNIQUES AND DATA, OF
PRESENT VALUE FROM FUTURE WORTH.  COMPARE THE PROVISIONS FOR CHARITABLE
DEDUCTIONS IN THE REVENUE ACTS OF 1918 - SEC. 403(A)(3)(40 STAT. 1098);
1921 - SEC. 403(A)(3)(42 STAT. 279); 1924 - SEC. 303(A)(3)(43 STAT.
306); 1926 - SEC. 303(A)(3)(44 STAT. 72). 

FN7  TREASURY REGULATIONS 80(1934 ED.)  ART.  44. 

FN8  TREASURY REGULATIONS 80(1934 ED.)  ART.  47. 

FN9  THE BOARD OF TAX APPEALS FOUND THAT DECEDENT HAD ADOPTED THREE
CHILDREN - TWO GIRLS AND A BOY - BEFORE HIS MARRIAGE TO THE PRESENT
MRS. FIELD.  SHE NEVER ADOPTED THE CHILDREN.  THE TWO GIRLS WERE
MARRIED TO HUSBANDS FULLY ABLE TO SUPPORT THEM, AND THE BOY WAS NEARLY
TWENTY-ONE AT THE TESTATOR'S DEATH. 

IMMEDIATELY AFTER DECEDENT'S DEATH THE WIDOW OWNED INCOME-PRODUCING
PROPERTY WORTH ABOUT $104,000.  HER TOTAL INCOME FROM HER OWN PROPERTY
AND THE TRUST, AND THE AMOUNTS SHE HAS ACTUALLY EXPENDED HAVE BEEN AS
FOLLOWS: 

PERIOD                   INCOME    EXPENDITURES 

1936(7 MONTHS)................  $10,735.35       $1,853.99 

1937..........................   24,738.57       10,357.91 

1938..........................   17,480.85       11,055.91 

1939..........................   17,448.23       12,024.92 

1940..........................   16,959.66       13,389.31

          $87,362.66      $48,682.04 

FN10  E.G., THE BOARD FOUND THAT SINCE HER HUSBAND'S DEATH, MRS.
FIELD PURCHASED TWO AUTOMOBILES AND A FUR COAT, TOOK TWO PLEASURE
TRIPS, GAVE FINANCIAL ASSISTANCE TO A NIECE, HELPED SEND A GRAND NEPHEW
THROUGH MEDICAL SCHOOL, AND PURCHASED A FUR COAT FOR ONE OF HER
HUSBAND'S DAUGHTERS. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE JACKSON CONCURS,
DISSENTING: 

THE TAX COURT APPLIED THE CORRECT RULE OF LAW IN DETERMINING WHETHER
THE GIFTS TO CHARITY WERE SO UNCERTAIN AS TO DISALLOW THEIR DEDUCTION. 
THAT RULE IS THAT THE DEDUCTION MAY BE MADE IF ON THE FACTS PRESENTED
THE AMOUNT OF THE CHARITABLE GIFTS ARE AFFECTED BY "NO UNCERTAINTY
APPRECIABLY GREATER THAN THE GENERAL UNCERTAINTY THAT ATTENDS HUMAN
AFFAIRS."  ITHACA TRUST CO. V. UNITED STATES, 279 U.S. 151, 154.  IN
THAT EVENT THE STANDARD FIXED BY THE WILL IS "CAPABLE OF BEING STATED
IN DEFINITE TERMS OF MONEY."  ID., P. 154.  THE MERE POSSIBILITY OF
INVASION OF THE CORPUS IS NOT ENOUGH TO DEFEAT THE DEDUCTION.  THE TAX
COURT APPLIED THAT TEST TO THESE FACTS.  45 B.T.A. 270, 273-274.  WHERE
ITS FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE THEY ARE
CONCLUSIVE.  WE MAY MODIFY OR REVERSE SUCH A DECISION ONLY IF IT IS
"NOT IN ACCORDANCE WITH LAW."  44 STAT. 110, 26 U.S.C. SEC.
1141(C)(I).  SEE WILMINGTON TRUST CO. V. HELVERING, 316 U.S. 164, 168. 
THE DISCRETION TO PAY TO THE WIFE SUCH PRINCIPAL AMOUNTS AS THE TRUSTEE
DEEMS PROPER FOR HER "HAPPINESS" INTRODUCES OF COURSE AN ELEMENT OF
UNCERTAINTY BEYOND THAT WHICH EXISTED IN THE ITHACA TRUST CO. CASE. 
THERE THE TRUSTEE ONLY HAD AUTHORITY TO WITHDRAW FROM THE PRINCIPAL AND
PAY TO THE WIFE A SUM "NECESSARY TO SUITABLY MAINTAIN HER IN AS MUCH
COMFORT AS SHE NOW ENJOYS."  BUT THE FRUGALITY AND CONSERVATISM OF THIS
NEW ENGLAND CORPORATE TRUSTEE, THE HABITS AND TEMPERAMENT OF THIS SIXTY
SEVEN YEAR OLD LADY, HER SCALE OF LIVING, THE NATURE OF THE INVESTMENTS
- THESE FACTS MIGHT WELL MAKE CERTAIN WHAT ON THE FACE OF THE WILL
MIGHT APPEAR QUITE UNCERTAIN.  WE SHOULD LET THAT FACTUAL DETERMINATION
OF THE TAX COURT STAND, EVEN THOUGH WE WOULD DECIDE DIFFERENTLY WERE WE
THE TRIERS OF FACT. 
..END :








U.S. EX REL. MCCANN V. ADAMS, 320 U.S. 220 


NO. 371.  DECIDED NOVEMBER 8, 1943.  - 136 F.2D 680, REVERSED. 


THE PETITION TO THE DISTRICT COURT FOR A WRIT OF HABEAS CORPUS
ADEQUATELY RAISED THE ISSUE, NOT PREVIOUSLY ADJUDICATED, WHETHER, IN A
PROSECUTION IN THE DISTRICT COURT WHICH RESULTED IN A JUDGMENT OF
CONVICTION, THE PETITIONER HAD INTELLIGENTLY - WITH FULL KNOWLEDGE OF
HIS RIGHTS AND CAPACITY TO UNDERSTAND THEM - WAIVED HIS RIGHT TO THE
ASSISTANCE OF COUNSEL AND TO TRIAL BY JURY; AND, IN THE CIRCUMSTANCES,
THE PETITIONER WAS ENTITLED TO AN OPPORTUNITY TO ESTABLISH HIS CLAIM. 
P. 221. 

UNITED STATES EX REL. MCCANN V. ADAMS, WARDEN, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT. 

PETITION FOR A WRIT OF CERTIORARI TO REVIEW THE AFFIRMANCE OF AN
ORDER DENYING AN APPLICATION FOR A WRIT OF HABEAS CORPUS. 

PER CURIAM. 

THIS PROCEEDING IS A SEQUEL TO ADAMS V. U.S. EX REL. MCCANN, 317 U.S.
269.  WE THERE REVERSED AN ORDER OF THE CIRCUIT COURT OF APPEALS OF THE
SECOND CIRCUIT DISCHARGING THE PRESENT RELATOR FROM CUSTODY.  WE DID SO
BECAUSE WE HELD THAT, IF HIS WAIVER WAS THE EXERCISE OF AN INTELLIGENT
CHOICE MADE WITH THE CONSIDERED APPROVAL OF THE TRIAL COURT, HE COULD
AS A MATTER OF LAW WAIVE HIS RIGHT TO A JURY TRIAL WITHOUT BEING
REPRESENTED BY COUNSEL.  AFTER THE CASE WENT BACK TO THE CIRCUIT COURT
OF APPEALS ON MANDATE AND FURTHER STEPS NOT NECESSARY HERE TO RECOUNT
WERE TAKEN, THE RELATOR FILED A PETITION FOR A WRIT OF HABEAS CORPUS IN
THE DISTRICT COURT WHICH, WITH SUPPORTING AFFIDAVITS, ADEQUATELY RAISED
THE ISSUE WHETHER IN FACT HE INTELLIGENTLY - WITH FULL KNOWLEDGE OF HIS
RIGHTS AND CAPACITY TO UNDERSTAND THEM - WAIVED HIS RIGHT TO THE
ASSISTANCE OF COUNSEL AND TO TRIAL BY JURY.  THAT ISSUE, AS APPEARS
FROM OUR FORMER OPINION, WAS EXPLICITLY WITHDRAWN FROM CONSIDERATION ON
THE HABEAS CORPUS PROCEEDINGS PREVIOUSLY BEFORE THE CIRCUIT COURT OF
APPEALS.  126 F.2D 774.  THAT ISSUE, NOW FAIRLY TENDERED BY THE
PETITION FOR HABEAS CORPUS BELOW, HAS NEVER BEEN ADJUDICATED ON ITS
MERITS BY THE LOWER COURTS.  BUT IT IS NO LONGER WITHIN THE BOSOM OF
THE TRIAL COURT.  NOR CAN IT BE DISPOSED OF ON THE APPEAL OF HIS
CONVICTION, FOR THE CLAIM RESTS ON MATERIALS DEHORS THE TRIAL
PROCEEDINGS.  IT IS A CLAIM WHICH THE RELATOR SHOULD BE ALLOWED TO
ESTABLISH, IF HE CAN.  WE CANNOT SAY THAT, IN THE LIGHT OF THE
SUPPORTING AFFIDAVITS, THE PETITION FOR A WRIT OF HABEAS CORPUS WAS
PALPABLY UNMERITORIOUS, AND SHOULD HAVE BEEN DISMISSED WITHOUT MORE. 
WE ARE COMPELLED THEREFORE TO ACCEDE TO THE GOVERNMENT'S CONSENT TO A
REVERSAL OF THE ORDER OF THE CIRCUIT COURT OF APPEALS AFFIRMING THE
ORDER DENYING THE APPLICATION FOR THE WRIT OF HABEAS CORPUS. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND THE PETITION
FOR CERTIORARI ARE THEREFORE GRANTED AND THE JUDGMENT IS REVERSED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  PETITIONER'S
APPLICATIONS FOR OTHER RELIEF ARE DENIED.  SO ORDERED. 
..END :


















HUNTER CO. V. MCHUGH, 320 U.S. 222 


NO. 25.  ARGUED OCTOBER 18, 19, 1943.  - DECIDED NOVEMBER 8, 1943.  -
DISMISSED. 


1.  THE ONLY ORDER OF THE STATE COMMISSIONER OF CONSERVATION WHICH WAS
BEFORE THE STATE COURTS IN THIS CASE HAVING BEEN SUPERSEDED BY LATER
ORDERS, THE CAUSE HAS BECOME MOOT SO FAR AS IT IS CONCERNED WITH THE
ORIGINAL ORDER; AND THIS COURT, IN REVIEWING ON APPEAL THE JUDGMENT OF
THE HIGHEST COURT OF THE STATE, IS NOT FREE TO, AND WILL NOT,
ADJUDICATE THE CONSTITUTIONALITY OF THE LATER ORDERS, WHERE THE STATE
COURT HAS HAD NO OPPORTUNITY TO PASS UPON THEIR VALIDITY UNDER STATE
LAW OR THE FEDERAL CONSTITUTION.  P. 226. 

2.  A STATE HAS CONSTITUTIONAL POWER TO REGULATE PRODUCTION OF OIL
AND GAS SO AS TO PREVENT WASTE AND TO SECURE EQUITABLE APPORTIONMENT
AMONG LANDHOLDERS OF THE MIGRATORY GAS AND OIL UNDERLYING THEIR LAND,
FAIRLY DISTRIBUTING AMONG THEM THE COSTS OF PRODUCTION AND OF THE
APPORTIONMENT.  P. 227. 

3.  UPON THE RECORD IN THIS CASE, ACT NO. 157 OF THE LOUISIANA ACTS
OF 1940 CAN NOT BE HELD INVALID ON ITS FACE.  P. 228. 

HUNTER COMPANY, INC. V. MCHUGH, COMMISSIONER OF CONSERVATION, ET AL. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

APPEAL FROM A JUDGMENT, 202 LA. 97, 11 SO.2D 495, WHICH, REVERSING A
DECISION OF A LOWER STATE COURT, SUSTAINED THE CONSTITUTIONAL VALIDITY,
AS APPLIED TO THE APPELLANT, OF AN ORDER PROMULGATED BY THE STATE
COMMISSIONER OF CONSERVATION UNDER AUTHORITY OF A STATE STATUTE
PROVIDING FOR REGULATION OF THE PRODUCTION OF OIL AND GAS. 

PER CURIAM. 

APPELLANT IS THE LESSEE UNDER AN OIL AND GAS LEASE OF 190 ACRES IN
THE LOGANSPORT FIELD IN LOUISIANA.  UNDER PERMIT FROM THE STATE IT HAS
DRILLED A WELL ON THE LEASED AREA, WHICH WAS COMPLETED ABOUT JUNE 1,
1938, AND CAME INTO PRODUCTION IN DECEMBER, 1940.  TO ENABLE IT TO
REACH A MARKET FOR THE NATURAL GAS PRODUCED BY THIS WELL, APPELLANT HAS
CONSTRUCTED AND OWNS A PIPE LINE WHICH EXTENDS FROM ITS WELL TO THE
LINE OF THE UNITED GAS PIPE LINE COMPANY. 

"FOR THE PREVENTION OF WASTE AND TO AVOID THE DRILLING OF UNNECESSARY
WELLS," SEC. 8(B) OF ACT NO. 157 OF THE LOUISIANA ACTS OF 1940,
AUTHORIZES THE STATE COMMISSIONER OF CONSERVATION TO ESTABLISH DRILLING
UNITS FOR ANY OIL OR GAS POOL, EXCEPT "WHERE CONDITIONS ARE SUCH THAT
IT WOULD BE IMPRACTICABLE OR UNREASONABLE TO USE A DRILLING UNIT AT THE
PRESENT STAGE OF DEVELOPMENT."  THE STATUTE DEFINES A DRILLING UNIT AS
"THE MAXIMUM AREA WHICH MAY BE EFFICIENTLY AND ECONOMICALLY DRAINED BY
ONE WELL." 

OWNED TRACTS THE OWNERS MAY AGREE TO POOL THEIR INTERESTS, BUT PROVIDES
THAT IN DEFAULT OF SUCH AGREEMENT "THE COMMISSIONER SHALL, IF FOUND BY
HIM TO BE NECESSARY FOR THE PREVENTION OF WASTE OR TO AVOID THE
DRILLING OF UNNECESSARY WELLS, REQUIRE SUCH OWNERS TO DO SO AND TO
DEVELOP THEIR LANDS AS A DRILLING UNIT"; SUCH ORDERS "SHALL BE MADE
AFTER NOTICE AND HEARING, AND SHALL BE UPON TERMS AND CONDITIONS WHICH
ARE JUST AND REASONABLE, AND WILL AFFORD TO THE OWNER OF EACH TRACT THE
OPPORTUNITY TO RECOVER OR RECEIVE HIS JUST AND EQUITABLE SHARE OF THE
OIL AND GAS IN THE POOL WITHOUT UNNECESSARY EXPENSE."  THE SECTION ALSO
PROVIDES:  "THE PORTION OF THE PRODUCTION ALLOCATED TO THE OWNER OF
EACH TRACT INCLUDED IN A DRILLING UNIT FORMED BY A POOLING ORDER SHALL,
WHEN PRODUCED, BE CONSIDERED AS IF IT HAD BEEN PRODUCED FROM SUCH TRACT
BY A WELL DRILLED THEREON.  IN THE EVENT SUCH POOLING IS REQUIRED, THE
COST OF DEVELOPMENT AND OPERATION OF THE POOLED UNIT CHARGEABLE BY THE
OPERATOR TO THE OTHER INTERESTED OWNER OR OWNERS SHALL BE LIMITED TO
THE ACTUAL EXPENDITURES REQUIRED FOR SUCH PURPOSE, NOT IN EXCESS OF
WHAT ARE REASONABLE, INCLUDING A REASONABLE CHARGE FOR SUPERVISION.  IN
THE EVENT OF ANY DISPUTE RELATIVE TO SUCH COSTS, THE COMMISSIONER SHALL
DETERMINE THE PROPER COSTS, AFTER DUE NOTICE TO ALL INTERESTED PARTIES
AND HEARING THEREON." 

PROCEEDING UNDER ACT NO. 157, THE COMMISSIONER, AFTER NOTICE AND
HEARING, ON OCTOBER 16, 1941, PROMULGATED ORDER NO. 28-B, WHICH
DESIGNATED DRILLING UNITS OF 320 ACRES FOR THE PRODUCTION OF GAS FROM
THE LOGANSPORT FIELD, ALLOWED THE DRILLING OF ONLY ONE WELL ON EACH
SUCH UNIT, REQUIRED THE OPERATOR OF A WELL DRILLED BEFORE THE EFFECTIVE
DATE OF THE ORDER TO DESIGNATE HIS DRILLING AREA, REQUIRED HIM TO
ACCOUNT TO EACH OWNER OR LESSEE OF LAND WITHIN THE UNIT FOR THE OIL AND
GAS PRODUCED, AND PROVIDED FOR A BI-MONTHLY DETERMINATION BY THE
COMMISSIONER OF THE AMOUNT OF THE ALLOWABLE GAS PRODUCTION FOR EACH
UNIT.  THE ORDER ALSO AUTHORIZED THE COMMISSIONER, UPON A SHOWING BY
ANY OPERATOR THAT ANY PART OF THE ORDER AS APPLIED TO HIS WELL "WILL
RESULT IN WASTE, OR AS TO SUCH OPERATOR IS UNREASONABLE" TO MAKE AN
EXCEPTION TO THE DIRECTIONS OF THE ORDER, PROVIDED THAT SUCH EXCEPTION
"WILL NOT RESULT IN WASTE IN THE FIELD AS A WHOLE" OR GIVE THE OPERATOR
AN "INEQUITABLE AND UNFAIR ADVANTAGE OVER ANOTHER OPERATOR OR OTHER
OPERATORS IN THE FIELD." 

LESS THAN THIRTY DAYS AFTER THE PROMULGATION OF THIS ORDER, NO
APPLICATION HAVING BEEN MADE BY AN ADJACENT LANDOWNER TO REQUIRE
POOLING, APPELLANT, WITHOUT HAVING DESIGNATED A DRILLING UNIT OR MADE
APPLICATION TO THE COMMISSIONER TO MAKE AN EXCEPTION TO THE ORDER,
BROUGHT THE PRESENT SUIT IN THE LOUISIANA CIVIL DISTRICT COURT TO
ENJOIN THE ENFORCEMENT OF ACT NO. 157 AND OF ORDER NO. 28-B OR ANY
SIMILAR ORDER.  BY ITS BILL OF COMPLAINT APPELLANT ASSERTED THAT THE
ORDER WAS INVALID UNDER THE STATE CONSTITUTION AND LAWS, AND VIOLATED
THE FOURTEENTH AMENDMENT IN THAT IT MADE NO PROVISION FOR THE PAYMENT
TO APPELLANT OF THE REASONABLE VALUE OF ITS LEASE AND FOR REIMBURSING
IT FOR THE COST OF DEVELOPMENT OF THE GAS, INCLUDING THE COST OF
DRILLING ITS WELL AND LAYING ITS PIPE LINE. 

THE CIVIL DISTRICT COURT HELD ACT NO. 157 AND ORDER NO. 28-B AS
APPLIED TO APPELLANT TO BE NULL AND VOID AND ENJOINED ENFORCEMENT OF
THE ACT AND ORDER OR ANY SIMILAR ORDER AGAINST APPELLANT.  THE SUPREME
COURT OF LOUISIANA, 202 LA. 97, 11 SO.2D 495, SET THIS JUDGMENT ASIDE
AND ORDERED THE COMPLAINT DISMISSED.  IT HELD THAT THE ORDER WAS A
VALID EXERCISE OF STATE POWER TO PREVENT FUTURE WASTE OF A NATURAL
RESOURCE OF THE STATE AND THAT UNDER THE PROVISIONS OF SEC. 9(A) OF THE
ACT AND OF THE ORDER APPELLANT WAS ENTITLED TO RETAIN ITS PROPORTIONATE
SHARE OF THE GAS, AND TO REIMBURSE ITSELF FROM THE PROCEEDS OF ALL THE
GAS FOR THE PROPORTIONATE SHARE OF THE COST OF DRILLING AND OPERATION
CHANGEABLE TO THE OTHER LANDOWNERS IN THE DRILLING UNIT. 

THE CASE COMES HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE,
28 U.S.C. SEC. 344(A), APPELLANT ASSIGNING AS ERROR THAT THE ACT AND
ORDER DEPRIVE IT OF PROPERTY WITHOUT DUE PROCESS OF LAW BY COMPELLING
IT TO COMBINE ITS LEASEHOLD WITH THE LAND OF OTHERS WITHIN THE DRILLING
UNIT FOR THE PURPOSE OF GAS PRODUCTION AND TO SHARE WITH THEM ITS PIPE
LINE AND OTHER FACILITIES FOR THE PRODUCTION AND MARKETING OF GAS, FOR
WHICH NO COMPENSATION IS PROVIDED BY THE ACT OR ORDER. 

AFTER THE APPEAL WAS DOCKETED IN THIS COURT APPELLEE SOUTHERN
PRODUCTS CO., WHICH HAD BEEN ALLOWED TO INTERVENE IN THE STATE COURTS,
MOVED TO DISMISS THE APPEAL AS MOOT BY REASON OF THE PROMULGATION BY
THE COMMISSIONER OF NEW ORDERS NO. 28-C AND NO. 28-C-10, WHICH OPERATED
TO SUPERSEDE ORDER NO. 28-B SO FAR AS APPLICABLE TO APPELLANT'S
LEASEHOLD.  ORDER NO. 28-C PRESCRIBED ENLARGED DRILLING UNITS
COMPRISING 640 ACRES FOR THE LOGANSPORT FIELD.  IT MADE OTHER
PROVISIONS NOT NOW MATERIAL FOR THE REGULATION OF PRODUCTION APPLICABLE
TO THE PRESCRIBED UNITS.  A LATER ORDER, NO. 28-C-10, DESIGNATED
APPELLANT AS THE OPERATOR OF A UNIT AND DIRECTED THAT IT SHOULD BE
ENTITLED TO RECEIVE AND RETAIN ALL PROCEEDS DERIVED FROM THE SALE OF
THE PRODUCT OF THE WELL AFTER DEDUCTION OF ROYALTIES AND COSTS OF
PRODUCTION UNTIL IT SHOULD HAVE RECOVERED THE COSTS OF DRILLING AND
EQUIPPING THE WELL AND LAYING AND OPERATING THE PIPE LINE, AND THAT THE
BALANCE OF THE PROCEEDS SHOULD BE DISTRIBUTED AMONG THE LANDHOLDERS
WITHIN THE UNIT, INCLUDING APPELLANT, IN PROPORTION TO THEIR ACREAGE
WITHIN THE UNIT. 

ORDER NO. 28-C WAS PROMULGATED ON FEBRUARY 10, 1942, BEFORE THE
JUDGMENTS OF BOTH THE CIVIL DISTRICT COURT ON FEBRUARY 26, 1942 AND THE
LOUISIANA SUPREME COURT ON NOVEMBER 30, 1942.  ALTHOUGH NO REASON
APPEARS WHY ITS INVALIDITY COULD NOT HAVE BEEN URGED BEFORE THOSE
COURTS, THE ORDER IS NOT IN THE RECORD AND DOES NOT APPEAR TO HAVE BEEN
CONSIDERED BY EITHER STATE COURT.  ORDER NO. 28-C-10 WAS PROMULGATED ON
FEBRUARY 25, 1943, AFTER THE DECISION AND JUDGMENT OF THE LOUISIANA
SUPREME COURT.  THE ONLY ORDER BEFORE THE STATE COURTS WAS NO. 28-B, TO
WHICH ALONE THEIR DECISIONS RELATE AND TO WHICH ALONE APPELLANT'S
ASSIGNMENTS OF ERROR IN THIS COURT ARE DIRECTED.  ITS OPERATION HAS
BEEN SUPERSEDED BY ORDERS NO. 28-C AND NO. 28-C-10, UNDER WHICH IT
APPEARS THAT BOTH THE COMMISSIONER AND APPELLANT ARE NOW PROCEEDING AS
CONTROLLING THE OPERATION OF APPELLANT'S WELL, AND THOSE ORDERS WERE
NOT BEFORE THE STATE COURTS OR CONSIDERED BY THEM. 

THE CAUSE HAS THUS BECOME MOOT SO FAR AS IT IS CONCERNED WITH ORDER
NO. 28-B AND THIS COURT, IN REVIEWING ON APPEAL THE JUDGMENT OF THE
STATE SUPREME COURT IS NOT FREE TO, AND WILL NOT ADJUDICATE THE
CONSTITUTIONALITY OF ORDERS NO. 28-C AND NO. 28-C-10 WHERE THE STATE
COURT WHOSE JUDGMENT IS UNDER REVIEW HAS HAD NO OPPORTUNITY TO PASS
UPON THEIR VALIDITY UNDER STATE LAW OR THE CONSTITUTION OF THE UNITED
STATES.  SEE MCGOLDRICK V. COMPAGNIE GENERALE, 309 U.S. 430, 433 ET
SEQ. 

A MINORITY OF THE COURT ARE OF OPINION THAT IN THESE CIRCUMSTANCES
THERE IS NO OUTSTANDING ORDER WHICH THIS COURT CAN REVIEW AND THAT THE
APPEAL SHOULD FOR THAT REASON ALONE BE DISMISSED. 

IN THE PRESENT POSTURE OF THE RECORD, SO FAR AS THE APPEAL SEEKS TO
BRING BEFORE US FOR REVIEW THE JUDGMENT OF THE STATE COURT SUSTAINING
THE CONSTITUTIONALITY OF THE STATUTE, THE RECORD PRESENTS NO
SUBSTANTIAL FEDERAL QUESTION.  WE HAVE HELD THAT A STATE HAS
CONSTITUTIONAL POWER TO REGULATE PRODUCTION OF OIL AND GAS SO AS TO
PREVENT WASTE AND TO SECURE EQUITABLE APPORTIONMENT AMONG LANDHOLDERS
OF THE MIGRATORY GAS AND OIL UNDERLYING THEIR LAND, FAIRLY DISTRIBUTING
AMONG THEM THE COSTS OF PRODUCTION AND OF THE APPORTIONMENT.  LINDSLEY
V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 77; BANDINI PETROLEUM CO. V.
SUPERIOR COURT, 284 U.S. 8, 22; CHAMPLIN REFINING CO. V. CORPORATION
COMMISSION, 286 U.S. 210, 232-4; THOMPSON V. CONSOLIDATED GAS CORP.,
300 U.S. 55, 76-7; PATTERSON V. STANOLIND OIL & GAS CO., 305 U.S. 376,
379, AND CASES CITED.  ON THIS APPEAL, ABSENT FROM THE RECORD ANY
OPERATIVE ORDER IMPLEMENTING ACT NO. 157, WE CANNOT SAY THAT THE
APPLICATION OF THE ACT CAN BE ENJOINED AS INVALID ON ITS FACE, FOR WE
CANNOT SAY THAT NO ORDER COULD BE MADE BY THE COMMISSIONER WHICH WOULD
APPORTION THE PRODUCTION AND DISTRIBUTE THE COSTS OF PRODUCTION AND OF
THE APPORTIONMENT IN A MANNER WHICH WOULD BE CONSONANT BOTH WITH THE
REQUIREMENTS OF THE STATUTE AND THE FEDERAL CONSTITUTION, COMPARE
PATTERSON V. STANOLIND OIL & GAS CO., SUPRA, WITH THOMPSON V.
CONSOLIDATED GAS CORP., SUPRA.  IT WILL BE TIME ENOUGH TO CONSIDER THE
CONSTITUTIONALITY OF ANY PARTICULAR APPORTIONMENT AND DISTRIBUTION OF
COSTS WHEN WE HAVE BEFORE US THE SPECIFIC PROVISIONS OF AN ORDER
DIRECTING THEM WHICH HAS BEEN SUBJECTED TO THE SCRUTINY OF THE STATE
COURT.  SEE BANDINI PETROLEUM CO. V. SUPERIOR COURT, SUPRA. 

THE APPEAL WILL BE DISMISSED FOR WANT OF A PROPERLY PRESENTED
SUBSTANTIAL FEDERAL QUESTION.  SO ORDERED. 
..END :







MEREDITH V. WINTER HAVEN, 320 U.S. 228 


NO. 42.  ARGUED OCTOBER 22, 1943.  - DECIDED NOVEMBER 8, 1943.  - 134
F.2D 202, REVERSED. 


1.  WHERE A FEDERAL COURT HAS JURISDICTION OF A CASE, THOUGH SOLELY BY
DIVERSITY OF CITIZENSHIP, THE DIFFICULTIES OF ASCERTAINING WHAT THE
STATE COURTS MAY THEREAFTER DETERMINE THE STATE LAW TO BE DO NOT IN
THEMSELVES AFFORD A SUFFICIENT GROUND FOR DECLINING TO EXERCISE THE
JURISDICTION.  P. 234. 

SO HELD IN RESPECT OF A SUIT INSTITUTED IN A FEDERAL DISTRICT COURT
IN FLORIDA, THE DECISION OF WHICH WAS CONCERNED SOLELY WITH THE EXTENT
OF THE LIABILITY OF A FLORIDA MUNICIPALITY UPON ITS REFUNDING BONDS. 

2.  IN THE ABSENCE OF SOME RECOGNIZED PUBLIC POLICY OR DEFINED
PRINCIPLE GUIDING THE EXERCISE OF THE JURISDICTION CONFERRED, WHICH
WOULD IN EXCEPTIONAL CASES WARRANT ITS NON-EXERCISE, IT HAS FROM THE
FIRST BEEN DEEMED TO BE THE DUTY OF THE FEDERAL COURTS, IF THEIR
JURISDICTION IS PROPERLY INVOKED, TO DECIDE QUESTIONS OF STATE LAW
WHENEVER NECESSARY TO THE RENDITION OF JUDGMENT.  WHEN SUCH EXCEPTIONAL
CIRCUMSTANCES ARE NOT PRESENT, DENIAL OF THAT OPPORTUNITY BY THE
FEDERAL COURTS, MERELY BECAUSE THE ANSWERS TO THE QUESTIONS OF STATE
LAW ARE DIFFICULT OR UNCERTAIN OR HAVE NOT YET BEEN GIVEN BY THE
HIGHEST COURT OF THE STATE, WOULD THWART THE PURPOSE OF THE
JURISDICTIONAL ACT.  P. 234. 

MEREDITH ET AL. V. WINTER HAVEN ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 319 U.S. 736, TO REVIEW A JUDGMENT WHICH, IN A SUIT BASED
ON DIVERSITY OF CITIZENSHIP, DIRECTED DISMISSAL WITHOUT PREJUDICE TO
THE PLAINTIFF'S RIGHT TO PROCEED IN THE STATE COURT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS SOUGHT A JUDGMENT GRANTING EQUITABLE RELIEF IN THE
DISTRICT COURT BELOW, WHOSE JURISDICTION RESTED SOLELY ON DIVERSITY OF
CITIZENSHIP.  THE QUESTION IS WHETHER THE CIRCUIT COURT OF APPEALS, ON
APPEAL FROM THE JUDGMENT OF THE DISTRICT COURT, RIGHTLY DECLINED TO
EXERCISE ITS JURISDICTION ON THE GROUND THAT DECISION OF THE CASE ON
THE MERITS TURNED ON QUESTIONS OF FLORIDA CONSTITUTIONAL AND STATUTORY
LAW WHICH THE DECISIONS OF THE FLORIDA COURTS HAD LEFT IN A STATE OF
UNCERTAINTY. 

PETITIONERS BROUGHT THIS SUIT IN THE DISTRICT COURT FOR SOUTHERN
FLORIDA, ALLEGING BY THEIR BILL OF COMPLAINT THAT THEY ARE OWNERS AND
HOLDERS OF GENERAL REFUNDING BONDS ISSUED IN 1933 BY RESPONDENT, THE
CITY OF WINTER HAVEN, FLORIDA; THAT BY THEIR TERMS THE BONDS ARE
CALLABLE BY THE CITY ON ANY INTEREST DATE ON TENDER OF THEIR PRINCIPAL
AMOUNT AND ACCRUED INTEREST, INCLUDING A SPECIFIED AMOUNT (DEPENDING ON
THE DATE OF CALL) OF THE INTEREST PAYABLE UPON THE DEFERRED-INTEREST
COUPONS ATTACHED TO THE BONDS; THAT THE CITY IS ABOUT TO CALL AND
RETIRE THE BONDS WITHOUT PROVIDING FOR PAYMENT OF THE DEFERRED-INTEREST
COUPONS.  THE BILL OF COMPLAINT PRAYED A DECLARATION THAT THIS COULD
NOT LAWFULLY BE DONE AND AN INJUNCTION RESTRAINING THE CITY FROM DOING
IT. 

IN THE EVENT THAT THE COURT SHOULD DETERMINE THAT THE OBLIGATION OF
THE DEFERRED-INTEREST COUPONS IS UNENFORCEABLE, THEN IT WAS PRAYED THAT
THE COURT DECLARE THAT PETITIONERS ARE ENTITLED TO ENFORCE THE
OBLIGATION FOR PAYMENT, PRINCIPAL AND INTEREST, OF THE AMOUNT OF THE
ORIGINAL BONDED INDEBTEDNESS OF THE CITY WHICH WAS REFUNDED BY THE
GENERAL REFUNDING BONDS NOW HELD BY PETITIONERS, AND THAT THE COURT
ENJOIN THE CITY AND ITS OFFICIALS, RESPONDENTS HERE, FROM FAILING OR
REFUSING TO PAY THE INTEREST DUE ON SUCH REFUNDED BONDS, AS PROVIDED BY
THE RESOLUTION OF THE CITY COMMISSIONERS AUTHORIZING THE ISSUE AND SALE
OF THE GENERAL REFUNDING BONDS IN 1933. 

THE DISTRICT COURT GRANTED RESPONDENTS' MOTION TO DISMISS THE
COMPLAINT ON THE GROUNDS THAT IT FAILED TO STATE A CAUSE OF ACTION AND
THAT THE QUESTIONS OF LAW INVOLVED HAD BEEN DETERMINED ADVERSELY TO
PETITIONERS BY THE SUPREME COURT OF FLORIDA.  THE COURT OF APPEALS,
WITHOUT PASSING ON THE MERITS, REVERSED AND DIRECTED THAT THE CAUSE BE
DISMISSED WITHOUT PREJUDICE TO PETITIONERS' RIGHT TO PROCEED IN THE
STATE COURTS TO SECURE A DETERMINATION OF THE QUESTIONS OF STATE LAW
INVOLVED.  134 F.2D 202. 

THE COURT OF APPEALS AGREED WITH PETITIONERS THAT THE BILL OF
COMPLAINT PRESENTED A JUSTICIABLE CONTROVERSY REQUIRING DETERMINATION,
THAT THEY WERE ENTITLED TO A JUDGMENT DECLARING THE LAW OF FLORIDA WITH
RESPECT TO THE VALIDITY OF THE DEFERRED-INTEREST COUPONS, AND THAT IF
PETITIONERS' CONTENTIONS WERE SUSTAINED THEY WERE ENTITLED TO A
DECLARATION IN THEIR FAVOR AND AN INJUNCTION IMPLEMENTING THE
DECLARATION.  BUT UPON AN EXAMINATION OF THE FLORIDA DECISIONS THE
COURT CONCLUDED THAT THE APPLICABLE LAW OF FLORIDA WAS NOT CLEARLY
SETTLED AND STABLE, BUT WAS QUITE THE CONTRARY, CITING SULLIVAN V.
TAMPA, 101 FLA. 298, 134 SO. 211; COLUMBIA COUNTY COMMISSIONERS V.
KING, 13 FLA. 451; STATE EX REL. NUVEEN V. GREER, 88 FLA. 249, 102 SO.
739; HUMPHREYS V. STATE EX REL. PALM BEACH CO., 108 FLA. 92, 145 SO.
858; ALTA-CLIFF CO. V. SPURWAY, 113 FLA. 633, 152 SO. 731; LEE V. BOND
HOWELL LUMBER CO., 123 FLA. 202, 166 SO. 733; AND ANDREWS V. WINTER
HAVEN, 148 FLA. 144, 3 SO.2D 805.  IT EXPRESSED DOUBT AS TO WHAT THE
FLORIDA LAW, APPLICABLE TO THE FACTS PRESENTED, NOW IS OR WILL BE
DECLARED TO BE, AND IN VIEW OF THIS UNCERTAINTY, SINCE NO FEDERAL
QUESTION WAS PRESENTED AND THE JURISDICTION WAS INVOKED SOLELY ON
GROUNDS OF DIVERSITY OF CITIZENSHIP, IT THOUGHT THAT PETITIONERS SHOULD
BE REQUIRED TO PROCEED IN THE STATE COURTS. 

ALTHOUGH THE OPINION BELOW REFERS TO THE SUIT AS ONE FOR A
DECLARATORY JUDGMENT, THE DECLARATION OF RIGHTS PRAYED, AS IS USUALLY
THE CASE IN SUITS FOR AN INJUNCTION, IS AN INDISPENSABLE PREREQUISITE
TO THE AWARD OF ONE OR THE OTHER OF THE FORMS OF EQUITABLE RELIEF WHICH
PETITIONERS SEEK IN THE ALTERNATIVE.  HENCE, SO FAR AS WE ARE CONCERNED
WITH THE NECESSITY AND PROPRIETY OF A DETERMINATION BY A FEDERAL COURT
OF QUESTIONS OF STATE LAW, THE CASE DOES NOT DIFFER FROM AN ORDINARY
EQUITY SUIT IN WHICH, BOTH BEFORE AND SINCE ERIE R. CO. V. TOMPKINS,
304 U.S. 64, FEDERAL COURTS HAVE BEEN CALLED UPON TO DECIDE STATE
QUESTIONS IN ORDER TO RENDER A JUDGMENT. 

THE FACTS AS PRESENTED BY THE AMENDED BILL OF COMPLAINT AND THE
MOTION TO DISMISS RAISE TWO ISSUES OF STATE LAW, ONE AND POSSIBLY BOTH
OF WHICH MUST BE DECIDED IF PETITIONERS ARE TO HAVE THE BENEFIT WHICH
THEY SEEK OF THE JURISDICTION CONFERRED ON DISTRICT COURTS IN DIVERSITY
CASES.  THE FIRST QUESTION ARISES FROM THE FACT THAT THE REFUNDING
BONDS OF 1933 WERE ISSUED WITHOUT A REFERENDUM TO THE FREEHOLD VOTERS
OF THE CITY.  ARTICLE IX, SEC. 6 OF THE FLORIDA CONSTITUTION PROVIDES
THAT MUNICIPALITIES "SHALL HAVE POWER TO ISSUE BONDS ONLY AFTER THE
SAME SHALL HAVE BEEN APPROVED BY A MAJORITY OF THE VOTES CAST IN AN
ELECTION," IN WHICH A MAJORITY OF THE FREEHOLDERS OF THE MUNICIPALITY
SHALL PARTICIPATE, BUT DISPENSES WITH THIS REQUIREMENT IN THE CASE OF
"REFUNDING" BONDS.  THE QUESTION IS WHETHER, UNDER THE APPLICABLE
DECISIONS OF THE FLORIDA COURTS, THE PROVISION FOR DEFERRED-INTEREST
COUPONS COULD RIGHTLY BE INCLUDED IN THE OBLIGATION OF THE REFUNDING
BONDS OF 1933 WITHOUT A REFERENDUM.  IF IT BE DECIDED THAT THE
PROVISION COULD NOT BE INCLUDED AND THAT THE COUPONS ARE INVALID, THE
SECOND QUESTION IS WHETHER PETITIONERS, AS HOLDERS OF REFUNDING BONDS,
ARE ENTITLED, UNDER SEC. 20 OF THE RESOLUTION OF THE CITY COMMISSIONERS
AUTHORIZING THE REFUNDING BOND ISSUE,  FN1  TO RECOVER THE PRINCIPAL
AND INTEREST OF AN EQUIVALENT AMOUNT OF THE BONDS REFUNDED.  THIS
QUESTION, UNLIKE THE FIRST, SO FAR AS APPEARS, HAS NOT BEEN PASSED UPON
BY THE FLORIDA COURTS. 

SEVERAL DECISIONS OF THE SUPREME COURT OF FLORIDA HAVE DECLARED THAT
WHERE BONDS TO BE REFUNDED CONTAIN NO PROVISION FOR DEFERRED-INTEREST
COUPONS, REFUNDING BONDS CONTAINING SUCH COUPONS WOULD IMPOSE "NEW AND
ADDITIONAL OR MORE BURDENSOME TERMS" (OUTMAN V. CONE, 141 FLA. 196,
199, 192 SO. 611, 613) WHICH MAY NOT BE INCLUDED IN REFUNDING BONDS
UNLESS THEY ARE APPROVED BY REFERENDUM IN ACCORDANCE WITH ARTICLE IX,
SEC. 6.  OUTMAN V. CONE, SUPRA; TAYLOR V. WILLIAMS, 142 FLA. 402, 195
SO. 175; ANDREWS V. WINTER HAVEN, SUPRA. 

AS APPEARS FROM THE AMENDED BILL OF COMPLAINT, AFTER THE PRESENT SUIT
WAS BEGUN THE SUPREME COURT OF FLORIDA DECIDED THE CASE OF ANDREWS V.
WINTER HAVEN, SUPRA.  THIS CASE INVOLVED THE SAME ISSUE OF REFUNDING
BONDS AS IS HERE IN QUESTION.  THE FLORIDA COURT HELD THAT THE DEFERRED
INTEREST COUPONS ARE INVALID; THAT THE PURPORTED OBLIGATION OF THE
INVALID COUPONS IS SEVERABLE FROM THE OBLIGATIONS TO PAY THE PRINCIPAL
OF THE BONDS AND CURRENT INTEREST ON THE OTHER COUPONS, WHICH
OBLIGATIONS ARE VALID AND ENFORCEABLE; AND THAT THE BONDS ARE SUBJECT
TO CALL UPON TENDER OF THE STIPULATED PRINCIPAL AND INTEREST WITHOUT
INCLUDING ANY AMOUNT PURPORTING TO BE PAYABLE ON THE DEFERRED-INTEREST
COUPONS. 

IT IS THE CONTENTION OF PETITIONERS THAT THE ANDREWS CASE IS NOT
CONTROLLING BECAUSE IT, AS WELL AS OUTMAN V. CONE, SUPRA, AND TAYLOR V.
WILLIAMS, SUPRA, WHICH IT CITED AND FOLLOWED, IS INCONSISTENT WITH
EARLIER DECISIONS OF THE SUPREME COURT OF FLORIDA ANTEDATING THE
REFUNDING BONDS OF 1933, PARTICULARLY SULLIVAN V. TAMPA, SUPRA; STATE
V. MIAMI, 103 FLA. 54, 137 SO. 261; STATE V. SPECIAL TAX SCHOOL
DISTRICT, 107 FLA. 93, 144 SO. 356; BAY COUNTY V. STATE, 116 FLA. 656,
157 SO. 1; STATE V. CITRUS COUNTY, 116 FLA. 676, 157 SO. 4; STATE V.
SARASOTA COUNTY, 118 FLA. 629, 159 SO. 797.  PETITIONERS ALSO INSIST
THAT, IN DECIDING THE ANDREWS CASE, THE ATTENTION OF THE SUPREME COURT
OF FLORIDA WAS NOT DIRECTED TO THE DOCTRINE WHICH IT HAD EARLIER
ANNOUNCED IN COLUMBIA COUNTY COMMISSIONERS V. KING, SUPRA, AND IN STATE
EX REL. NUVEEN V. GREER, SUPRA, THAT BY THE LAW OF FLORIDA A CONTRACT
IS GOVERNED BY THE LAWS DECLARED AT THE TIME THE CONTRACT WAS MADE, AND
THAT CONSEQUENTLY THE COURT DID NOT APPLY THE DOCTRINE.  AND FINALLY IT
IS SAID THAT THE WEIGHT OF THE OUTMAN AND ANDREWS CASES AS PRECEDENTS
IS IMPAIRED BY THE FACT THAT ALTHOUGH THEY APPEAR ON THE RECORD TO BE
ADVERSARY LITIGATIONS THEY WERE NOT IN FACT VIGOROUSLY CONTESTED. 

WHILE THE RULINGS OF THE SUPREME COURT OF FLORIDA IN THE ANDREWS CASE
MUST BE TAKEN AS CONTROLLING HERE UNLESS IT CAN BE SAID WITH SOME
ASSURANCE THAT THE FLORIDA SUPREME COURT WILL NOT FOLLOW THEM IN THE
FUTURE, SEE WICHITA ROYALTY CO. V. CITY NATIONAL BANK, 306 U.S. 103,
107; FIDELITY TRUST CO. V. FIELD, 311 U.S. 169, 177-178; WEST V.
AMERICAN TELEPHONE & TELEGRAPH CO., 311 U.S. 223, 236, WE ASSUME, AS
THE COURT OF APPEALS HAS INDICATED, THAT THE SUPREME COURT OF THE STATE
MAY MODIFY OR EVEN SET THEM ASIDE IN FUTURE DECISIONS.  BUT WE ARE OF
OPINION THAT THE DIFFICULTIES OF ASCERTAINING WHAT THE STATE COURTS MAY
HEREAFTER DETERMINE THE STATE LAW TO BE DO NOT IN THEMSELVES AFFORD A
SUFFICIENT GROUND FOR A FEDERAL COURT TO DECLINE TO EXERCISE ITS
JURISDICTION TO DECIDE A CASE WHICH IS PROPERLY BROUGHT TO IT FOR
DECISION. 

THE DIVERSITY JURISDICTION WAS NOT CONFERRED FOR THE BENEFIT OF THE
FEDERAL COURTS OR TO SERVE THEIR CONVENIENCE.  ITS PURPOSE WAS
GENERALLY TO AFFORD TO SUITORS AN OPPORTUNITY IN SUCH CASES, AT THEIR
OPTION, TO ASSERT THEIR RIGHTS IN THE FEDERAL RATHER THAN IN THE STATE
COURTS.  IN THE ABSENCE OF SOME RECOGNIZED PUBLIC POLICY OR DEFINED
PRINCIPLE GUIDING THE EXERCISE OF THE JURISDICTION CONFERRED, WHICH
WOULD IN EXCEPTIONAL CASES WARRANT ITS NON-EXERCISE, IT HAS FROM THE
FIRST BEEN DEEMED TO BE THE DUTY OF THE FEDERAL COURTS, IF THEIR
JURISDICTION IS PROPERLY INVOKED, TO DECIDE QUESTIONS OF STATE LAW
WHENEVER NECESSARY TO THE RENDITION OF A JUDGMENT.  COMMONWEALTH TRUST
CO. V. BRADFORD, 297 U.S. 613, 618; RISTY V. CHICAGO, R.I. & P. RY.
CO., 270 U.S. 378, 387; KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226,
234-235; MCCLELLAN V. CARLAND, 217 U.S. 268, 281-282.  WHEN SUCH
EXCEPTIONAL CIRCUMSTANCES ARE NOT PRESENT, DENIAL OF THAT OPPORTUNITY
BY THE FEDERAL COURTS MERELY BECAUSE THE ANSWERS TO THE QUESTIONS OF
STATE LAW ARE DIFFICULT OR UNCERTAIN OR HAVE NOT YET BEEN GIVEN BY THE
HIGHEST COURT OF THE STATE, WOULD THWART THE PURPOSE OF THE
JURISDICTIONAL ACT. 

THE EXCEPTIONS RELATE TO THE DISCRETIONARY POWERS OF COURTS OF
EQUITY.  AN APPEAL TO THE EQUITY JURISDICTION CONFERRED ON FEDERAL
DISTRICT COURTS IS AN APPEAL TO THE SOUND DISCRETION WHICH GUIDES THE
DETERMINATIONS OF COURTS OF EQUITY.  BEAL V. MISSOURI PACIFIC R. CO.,
312 U.S. 45, 50.  EXERCISE OF THAT DISCRETION BY THOSE, AS WELL AS BY
OTHER COURTS HAVING EQUITY POWERS, MAY REQUIRE THEM TO WITHHOLD THEIR
RELIEF IN FURTHERANCE OF A RECOGNIZED, DEFINED PUBLIC POLICY.  DI
GIOVANNI V. CAMDEN INSURANCE ASSN., 296 U.S. 64, 73, AND CASES CITED. 
IT IS FOR THIS REASON THAT A FEDERAL COURT HAVING JURISDICTION OF THE
CAUSE MAY DECLINE TO INTERFERE WITH STATE CRIMINAL PROSECUTIONS EXCEPT
WHEN MOVED BY MOST URGENT CONSIDERATIONS, SPIELMAN MOTOR CO. V. DODGE,
295 U.S. 89, 95; BEAL V. MISSOURI PACIFIC R. CO., SUPRA, 49-51; DOUGLAS
V. JEANNETTE, 319 U.S. 157; OR WITH THE COLLECTION OF STATE TAXES OR
WITH THE FISCAL AFFAIRS OF THE STATE, MATTHEWS V. RODGERS, 284 U.S.
521; STRATTON V. ST. LOUIS SOUTHWESTERN RY. CO., 284 U.S. 530; GREAT
LAKES DREDGE & DOCK CO. V. HUFFMAN, 319 U.S. 293; OR WITH THE STATE
ADMINISTRATIVE FUNCTION OF PRESCRIBING THE LOCAL RATES OF PUBLIC
UTILITIES, CENTRAL KENTUCKY GAS CO. V. RAILROAD COMMISSION, 290 U.S.
264, 271 ET SEQ. AND CASES CITED; OR TO INTERFERE, BY APPOINTING A
RECEIVER, WITH THE LIQUIDATION OF AN INSOLVENT STATE BANK BY A STATE
ADMINISTRATIVE OFFICER, WHERE THERE IS NO CONTENTION THAT THE INTERESTS
OF CREDITORS AND STOCKHOLDERS WILL NOT BE ADEQUATELY PROTECTED,
PENNSYLVANIA V. WILLIAMS, 294 U.S. 176; GORDON V. OMINSKY, 294 U.S.
186; GORDON V. WASHINGTON, 295 U.S. 30; CF. KELLEAM V. MARYLAND
CASUALTY CO., 312 U.S. 377, 381.  SIMILARLY IT MAY REFUSE TO APPRAISE
OR SHAPE DOMESTIC POLICY OF THE STATE GOVERNING ITS ADMINISTRATIVE
AGENCIES.  RAILROAD COMMISSION V. ROWAN & NICHOLS OIL CO., 311 U.S.
570; BURFORD V. SUN OIL CO., 319 U.S. 315.  AND IT MAY OF COURSE
DECLINE TO EXERCISE THE EQUITY JURISDICTION CONFERRED ON IT AS A
FEDERAL COURT WHEN THE PLAINTIFF FAILS TO ESTABLISH A CAUSE OF ACTION. 
CAVANAUGH V. LOONEY, 248 U.S. 453; GILCHRIST V. INTERBOROUGH RAPID
TRANSIT CO., 279 U.S. 159.  SO TOO A FEDERAL COURT, ADHERING TO THE
SALUTARY POLICY OF REFRAINING FROM THE UNNECESSARY DECISION OF
CONSTITUTIONAL QUESTIONS, MAY STAY PROCEEDINGS BEFORE IT, TO ENABLE THE
PARTIES TO LITIGATE FIRST IN THE STATE COURTS QUESTIONS OF STATE LAW,
DECISION OF WHICH IS PRELIMINARY TO, AND MAY RENDER UNNECESSARY,
DECISION OF THE CONSTITUTIONAL QUESTIONS PRESENTED.  RAILROAD
COMMISSION V. PULLMAN CO., 312 U.S. 496; CF. THOMPSON V. MAGNOLIA
PETROLEUM CO., 309 U.S. 478.  IT IS THE COURT'S DUTY TO DO SO WHEN A
SUIT IS PENDING IN THE STATE COURTS, WHERE THE STATE QUESTIONS CAN BE
CONVENIENTLY AND AUTHORITATIVELY ANSWERED, AT LEAST WHERE THE PARTIES
TO THE FEDERAL COURT ACTION ARE NOT STRANGERS TO THE STATE ACTION. 
CHICAGO V. FIELDCREST DAIRIES, 316 U.S. 168.  IN THUS DECLINING TO
EXERCISE THEIR JURISDICTION TO ENFORCE RIGHTS ARISING UNDER STATE LAWS,
FEDERAL COURTS ARE FOLLOWING THE SAME PRINCIPLES WHICH TRADITIONALLY
HAVE MOVED THEM, BECAUSE OF LIKE CONSIDERATIONS OF POLICY, TO REFUSE TO
GIVE AN EXTRAORDINARY REMEDY FOR THE PROTECTION OF FEDERAL RIGHTS. 
UNITED STATES EX REL. GREATHOUSE V. DERN, 289 U.S. 352, 359-361; SEE
VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 551-552 AND CASES
CITED; CF. SECURITIES & EXCHANGE COMM'N V. UNITED STATES REALTY CO.,
310 U.S. 434, 455 ET SEQ. 

BUT NONE OF THESE CONSIDERATIONS, NOR ANY SIMILAR ONE, IS PRESENT
HERE.  CONGRESS HAVING ADOPTED THE POLICY OF OPENING THE FEDERAL COURTS
TO SUITORS IN ALL DIVERSITY CASES INVOLVING THE JURISDICTIONAL AMOUNT,
WE CAN DISCERN IN ITS ACTION NO RECOGNITION OF A POLICY WHICH WOULD
EXCLUDE CASES FROM THE JURISDICTION MERELY BECAUSE THEY INVOLVE STATE
LAW OR BECAUSE THE LAW IS UNCERTAIN OR DIFFICULT TO DETERMINE.  THE
DECISION OF THIS CASE IS CONCERNED SOLELY WITH THE EXTENT OF THE
LIABILITY OF THE CITY ON ITS REFUNDING BONDS.  DECISION HERE DOES NOT
REQUIRE THE FEDERAL COURT TO DETERMINE OR SHAPE STATE POLICY GOVERNING
ADMINISTRATIVE AGENCIES.  IT ENTAILS NO INTERFERENCE WITH SUCH AGENCIES
OR WITH THE STATE COURTS.  NO LITIGATION IS PENDING IN THE STATE COURTS
IN WHICH THE QUESTIONS HERE PRESENTED COULD BE DECIDED.  WE ARE POINTED
TO NO PUBLIC POLICY OR INTEREST WHICH WOULD BE SERVED BY WITHHOLDING
FROM PETITIONERS THE BENEFIT OF THE JURISDICTION WHICH CONGRESS HAS
CREATED WITH THE PURPOSE THAT IT SHOULD BE AVAILED OF AND EXERCISED
SUBJECT ONLY TO SUCH LIMITATIONS AS TRADITIONALLY JUSTIFY COURTS IN
DECLINING TO EXERCISE THE JURISDICTION WHICH THEY POSSESS.  TO REMIT
THE PARTIES TO THE STATE COURTS IS TO DELAY FURTHER THE DISPOSITION OF
THE LITIGATION WHICH HAS BEEN PENDING FOR MORE THAN TWO YEARS AND WHICH
IS NOW READY FOR DECISION.  IT IS TO PENALIZE PETITIONERS FOR RESORTING
TO A JURISDICTION WHICH THEY WERE ENTITLED TO INVOKE, IN THE ABSENCE OF
ANY SPECIAL CIRCUMSTANCES WHICH WOULD WARRANT A REFUSAL TO EXERCISE
IT. 

ERIE R. CO. V. TOMPKINS, SUPRA, DID NOT FREE THE FEDERAL COURTS FROM
THE DUTY OF DECIDING QUESTIONS OF STATE LAW IN DIVERSITY CASES. 
INSTEAD IT PLACED ON THEM A GREATER RESPONSIBILITY FOR DETERMINING AND
APPLYING STATE LAWS IN ALL CASES WITHIN THEIR JURISDICTION IN WHICH
FEDERAL LAW DOES NOT GOVERN.  ACCEPTING THIS RESPONSIBILITY, AS WAS ITS
DUTY, THIS COURT HAS NOT HESITATED TO DECIDE QUESTIONS OF STATE LAW
WHEN NECESSARY FOR THE DISPOSITION OF A CASE BROUGHT TO IT FOR
DECISION, ALTHOUGH THE HIGHEST COURT OF THE STATE HAD NOT ANSWERED
THEM, THE ANSWERS WERE DIFFICULT, AND THE CHARACTER OF THE ANSWERS
WHICH THE HIGHEST STATE COURTS MIGHT ULTIMATELY GIVE REMAINED
UNCERTAIN.  WICHITA ROYALTY CO. V. CITY NATIONAL BANK, SUPRA; WEST V.
AMERICAN TELEPHONE & TELEGRAPH CO., SUPRA, 236-237; FIDELITY TRUST CO.
V. FIELD, SUPRA, 177-180; SIX COMPANIES V. JOINT HIGHWAY DISTRICT, 311
U.S. 180, 188; STONER V. NEW YORK LIFE INS. CO., 311 U.S. 464; PALMER
V. HOFFMAN, 318 U.S. 109, 116-118.  EVEN THOUGH OUR DECISIONS COULD NOT
FINALLY SETTLE THE QUESTIONS OF STATE LAW INVOLVED, THEY DID ADJUDICATE
THE RIGHTS OF THE PARTIES WITH THE AID OF SUCH LIGHT AS WAS AFFORDED BY
THE MATERIALS FOR DECISION AT HAND, AND IN ACCORDANCE WITH THE
APPLICABLE PRINCIPLES FOR DETERMINING STATE LAW.  IN THIS CASE, AS IN
THOSE, IT BEING WITHIN THE JURISDICTION CONFERRED ON THE FEDERAL COURTS
BY CONGRESS, WE THINK THE PLAINTIFFS, PETITIONERS HERE, WERE ENTITLED
TO HAVE SUCH AN ADJUDICATION. 

THE JUDGMENT WILL BE REVERSED AND THE CAUSE REMANDED TO THE CIRCUIT
COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS
OPINION.  REVERSED. 

FN1  "SECTION 20.  THAT IF ANY CLAUSE, SECTION, PARAGRAPH OR
PROVISION OF THIS RESOLUTION OR OF THE GENERAL REFUNDING BONDS HEREBY
AUTHORIZED BE DECLARED UNENFORCIBLE BY ANY COURT OF FINAL JURISDICTION,
IT SHALL NOT AFFECT OR INVALIDATE ANY REMAINDER THEREOF, AND IF ANY OF
THE BONDS HEREBY AUTHORIZED BE ADJUDGED ILLEGAL OR UNENFORCIBLE IN
WHOLE OR IN PART, THE HOLDERS THEREOF SHALL BE ENTITLED TO ASSUME THE
POSITION OF HOLDERS OF A LIKE AMOUNT OF THE INDEBTEDNESS HEREBY
PROVIDED TO BE REFUNDED AND AS SUCH ENFORCE THEIR CLAIM FOR PAYMENT." 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON ARE OF THE OPINION THAT THE
JUDGMENT SHOULD BE AFFIRMED FOR THE REASONS STATED IN THE OPINION OF
THE CIRCUIT COURT OF APPEALS, 134 F.2D 202. 
..END :















BELL V. PREFERRED LIFE SOCIETY, 320 U.S. 238 


NO. 17.  ARGUED OCTOBER 12, 13, 1943.  - DECIDED NOVEMBER 8, 1943.  -
131 F.2D 516, REVERSED. 


1.  WHERE BOTH ACTUAL AND PUNITIVE DAMAGES ARE RECOVERABLE UNDER A
COMPLAINT INVOKING THE JURISDICTION OF THE FEDERAL DISTRICT COURT ON
THE GROUND OF DIVERSITY OF CITIZENSHIP, EACH MUST BE CONSIDERED TO THE
EXTENT CLAIMED IN DETERMINING WHETHER THE JURISDICTIONAL AMOUNT IS
INVOLVED.  P. 240. 

2.  A COMPLAINT IN A FEDERAL DISTRICT COURT, INVOKING JURISDICTION ON
THE GROUND OF DIVERSITY OF CITIZENSHIP, ALLEGED THAT THE PLAINTIFF HAD
BEEN INDUCED TO PURCHASE A CERTIFICATE OF INSURANCE THROUGH FRAUDULENT
MISREPRESENTATIONS BY THE DEFENDANTS' AGENT AS TO THE VALUE, AND
CLAIMED $200,000 AS ACTUAL AND PUNITIVE DAMAGES.  THE RECORD SHOWED
THAT THE PLAINTIFF HAD PAID $202.35 ON THE CERTIFICATE, WHICH HAD A
MAXIMUM POTENTIAL VALUE OF $1,000.  HELD: 

(1)  WHETHER THE DECISION BE CONTROLLED BY THE LAW OF ALABAMA, WHERE
THE CERTIFICATE WAS ISSUED AND MAILED, OR BY THE LAW OF SOUTH CAROLINA,
WHERE THE ALLEGED FRAUDULENT MISREPRESENTATIONS WERE MADE, AND EVEN
THOUGH RECOVERY OF ACTUAL DAMAGES BE LIMITED TO $1,000, THE PLAINTIFF'S
ALLEGATIONS OF FRAUD, IF PROPERLY PROVED, MIGHT JUSTIFY AN AWARD
EXCEEDING $3,000; AND THEREFORE THE REQUISITE JURISDICTIONAL AMOUNT WAS
INVOLVED.  PP. 240-241. 

(2)  THE COMPLAINT SUFFICIENTLY ALLEGED THE EQUIVALENT OF "GROSS
FRAUD," WITHIN THE MEANING OF THE LAW OF ALABAMA, EVEN THOUGH THE FRAUD
WAS NOT FORMALLY ALLEGED TO BE "GROSS."  P. 241. 

(3)  THIS COURT IS UNABLE TO SAY THAT THE ALABAMA LAW AS TO PUNITIVE
DAMAGES PRECLUDES IN THIS CASE A VERDICT FOR ACTUAL AND PUNITIVE
DAMAGES EXCEEDING $3,000.  P. 242. 

(4)  THE QUESTION OF JURISDICTIONAL AMOUNT CAN NOT BE DETERMINED ON
THE ASSUMPTION THAT A VERDICT FOR THAT AMOUNT WOULD BE EXCESSIVE AND
COULD BE SET ASIDE.  P. 243. 

3.  A COMPLAINT FILED IN A FEDERAL COURT SHOULD NOT BE DISMISSED FOR
WANT OF JURISDICTION MERELY BECAUSE OF A TECHNICAL DEFECT SUCH AS MAY
BE THE SUBJECT OF A SPECIAL MOTION TO CLARIFY.  P. 242. 

BELL V. PREFERRED LIFE ASSURANCE SOCIETY ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 318 U.S. 755, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A SUIT BROUGHT IN THE DISTRICT COURT ON THE GROUND OF
DIVERSITY OF CITIZENSHIP. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS WHETHER PETITIONER'S COMPLAINT WAS PROPERLY
DISMISSED ON THE GROUND THAT THE MATTER IN CONTROVERSY DID NOT REALLY
AND SUBSTANTIALLY EXCEED $3,000 AS REQUIRED BY SECS. 24 AND 37 OF THE
JUDICIAL CODE.  FN1 

FILED IN THE FEDERAL COURT FOR THE MIDDLE DISTRICT OF ALABAMA,
PETITIONER'S COMPLAINT ALLEGED THAT HE HAD BEEN INDUCED TO PURCHASE AN
INSURANCE CERTIFICATE THROUGH FRAUDULENT MISREPRESENTATIONS OF
RESPONDENTS' AGENT BEARING UPON ITS ACTUAL VALUE, AND CLAIMED $200,000
AS ACTUAL AND PUNITIVE DAMAGES.  FN2  THE RECORD SHOWS THAT AT THE TIME
OF THE DISMISSAL PETITIONER HAD PAID ONLY $202.35 ON HIS CERTIFICATE,
AND THAT ITS MAXIMUM POTENTIAL VALUE WAS ONLY $1,000.  FROM THIS THE
DISTRICT COURT DECLARED THAT IT WAS "APPARENT TO A LEGAL CERTAINTY,"
ST. PAUL MERCURY INDEMNITY CO. V. RED CAB CO., 303 U.S. 283, 289, THAT
PETITIONER COULD IN NO EVENT BE ENTITLED TO MORE THAN $1,000, AND
THEREFORE CONCLUDED THAT THE REQUISITE $3,000 WAS NOT REALLY AND
SUBSTANTIALLY INVOLVED.  THE CIRCUIT COURT OF APPEALS AFFIRMED, FN3
HOLDING THAT THE CLAIM OF $200,000 DAMAGES WAS "ENTIRELY COLORABLE FOR
THE PURPOSE OF CONFERRING JURISDICTION" SINCE IT WAS "LEGALLY
INCONCEIVABLE" THAT PETITIONER'S ALLEGATIONS COULD JUSTIFY AN AWARD IN
EXCESS OF THE VALUE OF HIS $1,000 CERTIFICATE. 

WHERE BOTH ACTUAL AND PUNITIVE DAMAGES ARE RECOVERABLE UNDER A
COMPLAINT EACH MUST BE CONSIDERED TO THE EXTENT CLAIMED IN DETERMINING
JURISDICTIONAL AMOUNT.  FN4  THEREFORE EVEN THOUGH THE PETITIONER IS
LIMITED TO ACTUAL DAMAGES OF $1,000, AS BOTH COURTS HELD, THE QUESTION
REMAINS WHETHER IT IS APPARENT TO A LEGAL CERTAINTY FROM THE COMPLAINT
THAT HE COULD NOT RECOVER, IN ADDITION, SUFFICIENT PUNITIVE DAMAGES TO
MAKE UP THE REQUISITE $3,000.  IF THE CONTROLLING LAW IS THAT OF SOUTH
CAROLINA, WHERE THE ALLEGED FRAUDULENT MISREPRESENTATIONS ARE SAID TO
HAVE OCCURRED, PETITIONER CLEARLY MIGHT RECOVER AN AWARD EXCEEDING
$3,000.  FN5  RESPONDENTS URGE HOWEVER THAT THE LAW OF ALABAMA, WHERE
THE INSURANCE CERTIFICATE WAS ISSUED AND MAILED, MUST CONTROL.  WE NEED
NOT PASS UPON THIS QUESTION FOR WE ARE SATISFIED THAT UNDER THE LAW OF
ALABAMA AS WELL AS THAT OF SOUTH CAROLINA PETITIONER'S ALLEGATIONS OF
FRAUD IF PROPERLY PROVED MIGHT JUSTIFY AN AWARD EXCEEDING $3,000. 

RESPONDENTS ASSERT THAT PETITIONER'S COMPLAINT DOES NOT ALLEGE THAT
TYPE OF "GROSS FRAUD" ESSENTIAL FOR AN AWARD OF PUNITIVE DAMAGES UNDER
ALABAMA LAW.  THE SUPREME COURT OF ALABAMA HAS DECLARED THAT IN AN
ACTION FOR DECEIT "GROSS FRAUD" WHICH WILL SUPPORT PUNITIVE DAMAGES MAY
BE DEFINED AS "REPRESENTATIONS MADE WITH A KNOWLEDGE OF THEIR FALSENESS
(OR SO RECKLESSLY MADE AS TO AMOUNT TO THE SAME THING), AND WITH THE
PURPOSE OF INJURING THE PLAINTIFF."  SOUTHERN BUILDING & LOAN ASSN. V.
DINSMORE, 225 ALA. 550, 552, 144 SO. 21, 23.  IN THE INSTANT CASE THE
COMPLAINT ALLEGES THAT THE FRAUDULENT REPRESENTATIONS "WERE FALSE, AND
WERE KNOWN TO BE FALSE WHEN MADE AND UTTERED WITH A RECKLESS DISREGARD
FOR THE TRUTH"; THAT PETITIONER "RELIED UPON THEM, AND HAD A RIGHT TO
RELY UPON THEM"; AND THAT HE "WOULD NOT HAVE APPLIED FOR SUCH
CERTIFICATE EXCEPT FOR SUCH FALSE REPRESENTATIONS."  PLAINLY, THEN,
THIS COMPLAINT ALLEGES THE EQUIVALENT OF "GROSS FRAUD" AS THOSE WORDS
ARE DEFINED BY THE ALABAMA COURTS.  FN6  AND, EVEN IF THE FRAUD WERE
NOT FORMALLY ALLEGED TO BE "GROSS," A COMPLAINT FILED IN A FEDERAL
COURT SHOULD NOT BE DISMISSED FOR WANT OF JURISDICTION BECAUSE OF A
MERE TECHNICAL DEFECT SUCH AS WOULD MAKE IT SUBJECT TO A SPECIAL MOTION
TO CLARIFY.  SEE SPARKS V. ENGLAND, 113 F.2D 579; CF. CHICAGO, R.I. &
P. RY. CO. V. SCHWYHART, 227 U.S. 184, 194. 

RESPONDENTS ALSO MAINTAIN THAT, EVEN IF IT WOULD WARRANT SOME
PUNITIVE DAMAGES, THE COMPLAINT COULD NOT UNDER ALABAMA LAW WARRANT
ENOUGH TO SUPPORT A JUDGMENT OF $3,000.  IT IS TRUE AS RESPONDENTS
POINT OUT THAT THE ALABAMA SUPREME COURT HAS SAID THAT THE AMOUNT OF
PUNITIVE DAMAGES "OUGHT  ...  TO BEAR PROPORTION TO THE ACTUAL DAMAGES
SUSTAINED," MOBILE & MONTGOMERY R. CO. V. ASHCRAFT, 48 ALA. 15, 33; AND
THAT, WHILE SUCH DAMAGES "MUST REST IN LARGE MEASURE WITHIN THE
DISCRETION OF THE JURY," THIS IS NOT AN "UNBRIDLED DISCRETION." 
ALABAMA WATER SERVICE CO. V. HARRIS, 221 ALA. 516, 519, 129 SO. 5, 7. 
BUT NEITHER IN THESE CASES, NOR IN ANY OTHERS CITED TO US, HAS THAT
COURT HELD THAT PUNITIVE AND ACTUAL DAMAGES MUST BEAR A DEFINITE
MATHEMATICAL RELATIONSHIP.  FN7  THAT THERE IS NO SUCH LEGAL FORMULA
SEEMS APPARENT FROM THE RULE RELIED UPON BY RESPONDENTS AS THE CORRECT
ALABAMA RULE REGARDING THE MEASURE OF PUNITIVE DAMAGES, NAMELY, THAT
"THE NATURE OF THE CASE SHOULD BE CONSIDERED, THE CHARACTER AND EXTENT
OF INJURY LIKELY TO RESULT FROM DISREGARD OF DUTY, AND ALL THE
ATTENDANT CIRCUMSTANCES."  ALABAMA WATER SERVICE CO. V. HARRIS, SUPRA,
519.  IN THE HARRIS CASE THE COURT FURTHER EMPHASIZED THE WIDE SCOPE OF
ALLOWABLE PUNITIVE DAMAGES BY SAYING THAT A JURY'S AWARD IS NOT TO BE
DISTURBED IF, "ALLOWING ALL PRESUMPTIONS IN FAVOR OF" IT, THE COURT IS
NOT "CLEARLY CONVINCED IT IS SO EXCESSIVE AS TO DEMAND THE
INTERPOSITION OF THIS COURT."  IBID.  CONSIDERING THESE GENERAL
PRINCIPLES OF ALABAMA LAW, WE ARE UNABLE TO SAY THAT UNDER PETITIONER'S
COMPLAINT EVIDENCE COULD NOT BE INTRODUCED AT A TRIAL JUSTIFYING A JURY
VERDICT FOR ACTUAL AND PUNITIVE DAMAGES EXCEEDING $3,000.  NOR CAN THIS
CONTROVERSY AS TO JURISDICTIONAL AMOUNT BE DECIDED ON THE ASSUMPTION
"THAT A VERDICT, IF RENDERED FOR THAT AMOUNT, WOULD BE EXCESSIVE AND
SET ASIDE FOR THAT REASON - A STATEMENT WHICH COULD NOT, AT ANY RATE,
BE JUDICIALLY MADE BEFORE SUCH A VERDICT WAS IN FACT RENDERED."  BARRY
V. EDMUNDS, SUPRA, 565. 

THE JUDGMENT OF DISMISSAL IS REVERSED AND THE CAUSE REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS.  REVERSED. 

FN1  36 STAT. 1091, 1098; U.S.C. TIT. 28, SECS. 41, 80.  THE
COMPLAINT ALLEGED DIVERSITY OF CITIZENSHIP AS THE BASIS FOR FEDERAL
JURISDICTION. 

FN2  THE COMPLAINT FURTHER ALLEGED OFFICIAL MISCONDUCT ON THE PART OF
CERTAIN OFFICERS OF RESPONDENT SOCIETY, AND JOINED THEM AS SEPARATE
DEFENDANTS.  PETITIONER CONTENDS THAT THESE ALLEGATIONS WITH THE
ACCOMPANYING PRAYERS FOR RELIEF ARE SUFFICIENT IN THEMSELVES TO
ESTABLISH THAT THE MATTER IN DISPUTE EXCEEDS $3,000, ON ANY OF THREE
THEORIES:  A CLASS ACTION UNDER RULE 23 OF THE FEDERAL RULES OF CIVIL
PROCEDURE; A DERIVATIVE ACTION AGAINST THE OFFICERS FOR THE BENEFIT OF
THE SOCIETY; OR AN ORIGINAL ACTION TO REORGANIZE A MUTUAL INSURANCE
SOCIETY PROPERLY BROUGHT BY A MEMBER.  AS OUR DECISION INDICATES, WE
FIND IT UNNECESSARY TO PASS UPON THESE CONTENTIONS. 

FN3  131 F.2D 516. 

FN4  BARRY V. EDMUNDS, 116 U.S. 550, 560; SCOTT V. DONALD, 165 U.S.
58, 89, 90. 

FN5 RESPONDENTS DID NOT SERIOUSLY CONTEND OTHERWISE, AND THE SOUTH
CAROLINA CASES CITED TO US APPARENTLY FORECLOSED SUCH A CONTENTION:
EADDY V. GREENSBORO-FAYETTEVILLE BUS LINES, 191 S.C. 538, 5 S.E.2D 281;
COOK V. METROPOLITAN LIFE INS. CO., 186 S.C. 77, 194 S.E. 636; CROSBY
V. METROPOLITAN LIFE INS. CO., 167 S.C. 255, 166 S.E. 266.  IN THIS
LATTER CASE IT APPEARS THAT PUNITIVE DAMAGES OF $1,211.70 WERE ALLOWED
ALTHOUGH THE ACTUAL DAMAGES WERE ONLY $11.70. 

FN6  HAD PETITIONER'S COMPLAINT BEEN FILED IN A STATE COURT IN
ALABAMA, IT WOULD HAVE SUPPORTED A VERDICT AND JUDGMENT FOR PUNITIVE
DAMAGES.  THE ALABAMA SUPREME COURT HOLDS THAT, "IT IS NOT NECESSARY TO
CLAIM PUNITIVE DAMAGES SPECIALLY, FOR THEY ARE NOT SPECIAL DAMAGES.  IT
IS NOT NECESSARY TO ALLEGE THE MATTER OF AGGRAVATION WHICH JUSTIFIES
THEIR RECOVERY."  FIDELITY-PHENIX FIRE INS. CO. V. MURPHY, 226 ALA.
226, 232, 146 SO. 387. 

FN7  IN U.S. FIDELITY & GUARANTY CO. V. MILLONAS, 206 ALA. 147, 154,
89 SO. 732, THE COURT PERMITTED AN AWARD OF $6,000 AFTER FINDING THAT
THE ACTUAL DAMAGE SUFFERED COULD IN NO EVENT EXCEED $1,000.  AND IN
ALABAMA GREAT SOUTHERN R. CO. V. SELLERS, 93 ALA. 9, 9 SO. 375, WHERE
THE JURY RETURNED A VERDICT OF $500, IT WAS HELD THAT THE TRIAL COURT
DID NOT ERR IN REFUSING TO CHARGE THAT PUNITIVE DAMAGES COULD NOT BE
IMPOSED IF THE PLAINTIFF SUFFERED ONLY NOMINAL ACTUAL DAMAGE. 
..END :

















CARTER V. KUBLER, 320 U.S. 243 


NO. 18.  ARGUED OCTOBER 13, 1943.  - DECIDED NOVEMBER 8, 1943.  - 131
F.2D 222, AFFIRMED. 


THE CONCILIATION COMMISSIONER, MAKING A REAPPRAISAL OF THE DEBTOR'S
PROPERTY PURSUANT TO SEC. 75(S)(3) OF THE BANKRUPTCY ACT, ERRED IN
BASING THE VALUATION PARTLY ON EVIDENCE OBTAINED BY HIS PERSONAL
INVESTIGATION WITHOUT THE KNOWLEDGE OR CONSENT OF THE PARTIES; BUT, IN
THE CIRCUMSTANCES OF THIS CASE, THE ERROR WAS CURED UPON REVIEW IN THE
DISTRICT COURT, WHICH REEXAMINED ALL THE COMPETENT EVIDENCE INTRODUCED
AT THE HEARING BEFORE THE COMMISSIONER AND THEREUPON MODIFIED THE
LATTER'S VALUATION.  P. 246. 

CARTER V. KUBLER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 318 U.S. 753, TO REVIEW THE AFFIRMANCE, UPON APPEAL BY
THE DEBTOR, OF A JUDGMENT MODIFYING AN ORDER OF A CONCILIATION
COMMISSIONER. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE NARROW ISSUES PRESENTED BY THIS CASE ARE WHETHER IT WAS ERROR
UNDER SEC. 75(S)(3) OF THE BANKRUPTCY ACT  FN1  FOR A CONCILIATION
COMMISSIONER TO FIX A VALUATION PARTLY ON THE BASIS OF HIS PERSONAL
INVESTIGATION AND, IF SO, WHETHER THAT ERROR WAS CURED ON REVIEW BY THE
DISTRICT COURT. 

PETITIONER, THE FARMER DEBTOR, WAS ADJUDICATED A BANKRUPT UNDER SEC.
75(S).  AFTER A $5,800 APPRAISAL OF HIS FARM HAD BEEN APPROVED BY A
CONCILIATION COMMISSIONER, PETITIONER WAS PERMITTED TO RETAIN
POSSESSION OF THE PROPERTY FOR THE STATUTORY THREE-YEAR PERIOD.  AT THE
END OF THAT TIME, HE PETITIONED THE DISTRICT COURT FOR A REAPPRAISAL OF
THE PROPERTY FOR REDEMPTION PURPOSES, PURSUANT TO SEC. 75(S)(3).  FN2
THE JUDGE THEN REFERRED THE MATTER TO THE SAME CONCILIATION
COMMISSIONER WHO HAD APPROVED THE ORIGINAL APPRAISAL AND DIRECTED THAT
HE "HAVE A REAPPRAISEMENT OF THE FARM MADE AND THAT THE SECURED
CREDITOR BE AFFORDED AN OPPORTUNITY TO PRESENT EVIDENCE AS TO THE
PRESENT FAIR VALUE OF SUCH FARM AND THAT THE CONCILIATION COMMISSIONER
DETERMINE THE CORRECT APPRAISED VALUE AND FIX A REASONABLE TIME WITHIN
WHICH THE DEBTOR SHALL REDEEM THE FARM FROM THE MORTGAGE LIEN, FAILING
IN WHICH A PUBLIC SALE IS ORDERED." 

PURSUANT TO THIS ORDER, THE CONCILIATION COMMISSIONER HELD HEARINGS
TO DETERMINE THE FAIR AND REASONABLE VALUE OF THE FARM IN QUESTION. 
RESPONDENT, THE SECURED MORTGAGE HOLDER, CALLED FIVE WITNESSES WHOSE
ESTIMATES OF THE VALUE OF THE FARM RANGED FROM APPROXIMATELY $29,000 TO
$33,000.  THE VALUES GIVEN BY PETITIONER'S FIVE WITNESSES WERE FROM
$6,500 TO $12,000.  ALL BUT ONE OF THESE WITNESSES WERE SUBJECTED TO
CROSS-EXAMINATION.  SUBSEQUENTLY, THE CONCILIATION COMMISSIONER MADE
THE FOLLOWING FINDING:  "AFTER HEARING THE TESTIMONY GIVEN BY THE
SEVERAL WITNESSES, AND STUDYING THE BRIEFS FURNISHED BY THE DEFENDANT
AND THE PLAINTIFF, AND UPON A PERSONAL INVESTIGATION BY THE
CONCILIATION COMMISSIONER OF THE VALUE OF SAID FARM, I HEREBY FIX THE
VALUE OF SAID FARM AT $150 PER ACRE (APPROXIMATELY $25,000 FOR THE
ENTIRE FARM)."  THE COMMISSIONER DID NOT INDICATE WHEN OR UNDER WHAT
CIRCUMSTANCES HIS PERSONAL INVESTIGATION HAD BEEN MADE. 

PETITIONER THEN REQUESTED THE DISTRICT COURT TO REVIEW AND REVERSE
THE COMMISSIONER'S ORDER ALLOWING HIM TO REDEEM THE FARM ON PAYMENT OF
$25,000.  INCLUDED IN THE SPECIFICATION OF ERRORS WAS THE CLAIM THAT
THE VALUATION WAS ERRONEOUS AND VOID "BECAUSE MADE AND FIXED BY THE
CONCILIATION COMMISSIONER UPON A PERSONAL INVESTIGATION  ...  MADE
OUTSIDE OF AND INDEPENDENT OF THE HEARINGS  ...  AT WHICH PERSONAL
INVESTIGATION NEITHER THE PETITIONER HEREIN NOR HIS COUNSEL WAS
AFFORDED OPPORTUNITY TO OFFER COUNTER EVIDENCE OR TO CROSS-EXAMINE
CONCERNING THE EVIDENCE ADDUCED BY SAID PERSONAL INVESTIGATION."  THE
DISTRICT COURT, AFTER REVIEWING THE ENTIRE TESTIMONY INTRODUCED AT THE
HEARING BEFORE THE COMMISSIONER AND AFTER READING THE BRIEFS SUBMITTED
BY THE PARTIES, CONCLUDED THAT THE COMMISSIONER'S ESTIMATE WAS TOO HIGH
AND REDUCED THE VALUATION TO $20,000.  IT DOES NOT APPEAR THAT THE
DISTRICT COURT MADE ANY USE OR MENTION OF THE COMMISSIONER'S PERSONAL
INVESTIGATION IN ARRIVING AT THIS VALUATION OR THAT ANY EVIDENCE WAS
UTILIZED OTHER THAN THAT PROPERLY INTRODUCED AT THE HEARING BEFORE THE
COMMISSIONER. 

PETITIONER RENEWED HIS OBJECTION TO THE PERSONAL INVESTIGATION IN HIS
APPEAL TO THE CIRCUIT COURT OF APPEALS.  THE LATTER, HOWEVER, MERELY
STATED THAT THERE WAS NO ABUSE OF JUDICIAL DISCRETION BY THE DISTRICT
COURT IN FIXING THE VALUATION AT $20,000 AND THAT THERE WAS NO
REVERSIBLE ERROR.  131 F.2D 222.  WE GRANTED CERTIORARI, LIMITED TO THE
QUESTION OF THE PROPRIETY OF THE COMMISSIONER'S PERSONAL INVESTIGATION,
BECAUSE OF AN ASSERTED CONFLICT WITH MOSER V. MORTGAGE GUARANTEE CO.,
123 F.2D 423. 

WE ARE OF THE OPINION THAT THE CONCILIATION COMMISSIONER ERRED IN
FIXING THE VALUE OF THE PROPERTY PARTLY UPON HIS PERSONAL
INVESTIGATION, BUT THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, SUCH
ERROR WAS CURED INASMUCH AS THE DISTRICT COURT REEXAMINED ALL THE
EVIDENCE PROPERLY INTRODUCED AT THE HEARING BEFORE THE COMMISSIONER AND
THEREUPON MODIFIED THE LATTER'S VALUATION. 

COMMISSIONER'S ACTION.  IF THE DISTRICT COURT CONDUCTS A HEARING TO
DETERMINE THE VALUE OF THE PROPERTY OR IF THE CONCILIATION COMMISSIONER
IS AUTHORIZED TO HOLD SUCH A HEARING, THE STATUTE PROVIDES THAT THE
VALUATION SHALL BE FIXED "IN ACCORDANCE WITH THE EVIDENCE SUBMITTED" AT
THE HEARING.  THE STATUTE CONFERS NO AUTHORITY ON EITHER THE JUDGE OR
THE COMMISSIONER TO ACT PERSONALLY AS AN APPRAISER OR TO CONDUCT HIS
OWN FACTUAL INQUIRY ABSENT THE KNOWLEDGE AND CONSENT OF THE PARTIES TO
THE HEARING.  THE VALUATION MUST THUS BE DETERMINED SOLELY FROM THE
EVIDENCE ADDUCED AT THE HEARING AND THE USE OF EVIDENCE OBTAINED IN ANY
OTHER MANNER IS IMPROPER.  MOSER V. MORTGAGE GUARANTEE CO., SUPRA;
EQUITABLE LIFE ASSURANCE SOCIETY V. DEUTSCHLE, 132 F.2D 525.  AND THE
PARTIES ARE ENTITLED TO A VALUATION BASED ON A STRICT ADHERENCE TO THIS
ORDERLY PROCEDURE.  JOHN HANCOCK MUTUAL LIFE INS. CO. V. BARTELS, 308
U.S. 180; BORCHARD V. CALIFORNIA BANK, 310 U.S. 311. 

MOREOVER, ONCE A HEARING HAS BEEN ORDERED, SEC. 75(S)(3) NECESSARILY
GUARANTEES THAT IT SHALL BE A FAIR AND FULL HEARING.  THE BASIC
ELEMENTS OF SUCH A HEARING INCLUDE THE RIGHT OF EACH PARTY TO BE
APPRIZED OF ALL THE EVIDENCE UPON WHICH A FACTUAL ADJUDICATION RESTS,
PLUS THE RIGHT TO EXAMINE, EXPLAIN OR REBUT ALL SUCH EVIDENCE.  TESTED
BY THAT STANDARD, THE PERSONAL INVESTIGATION BY THE CONCILIATION
COMMISSIONER CANNOT BE JUSTIFIED.  IT WAS APPARENTLY MADE WITHOUT
PETITIONER'S KNOWLEDGE OR CONSENT AND NO OPPORTUNITY WAS ACCORDED
PETITIONER TO EXAMINE OR REBUT THE EVIDENCE OBTAINED IN THE COURSE OF
SUCH INVESTIGATION.  THE USE OF THIS EVIDENCE WAS THEREFORE
INCONSISTENT WITH THE RIGHT TO A FAIR AND FULL HEARING.  MOSER V.
MORTGAGE GUARANTEE CO., SUPRA, WIGMORE ON EVIDENCE, SEC. 1169(3RD
EDITION).  FN3 

THE IRREGULARITY OF THE COMMISSIONER'S PERSONAL INVESTIGATION,
HOWEVER, APPEARS TO HAVE BEEN CURED BY THE DISTRICT COURT'S REVIEW AND
MODIFICATION OF THE COMMISSIONER'S VALUATION.  ORDER 47 OF THE GENERAL
ORDERS IN BANKRUPTCY,  FN4  WHICH IS APPLICABLE TO THE REVIEW OF THE
COMMISSIONER'S VALUATION,  FN5  PROVIDES IN EFFECT THAT THE
COMMISSIONER'S FINDINGS OF FACT SHALL BE ACCEPTED BY THE JUDGE "UNLESS
CLEARLY ERRONEOUS."  ORDER 47 FURTHER PROVIDES THAT "THE JUDGE AFTER
HEARING MAY ADOPT THE REPORT OR MAY MODIFY IT OR MAY REJECT IT IN WHOLE
OR IN PART OR MAY RECEIVE FURTHER EVIDENCE OR MAY RECOMMIT IT WITH
INSTRUCTIONS." 

HAD THE DISTRICT COURT DONE NO MORE THAN SUMMARILY AFFIRM AND ADOPT
WITHOUT CHANGE THE COMMISSIONER'S FINDING OF A $25,000 VALUE, THE
DEFECT UPON WHICH THAT FINDING RESTED WOULD NOT HAVE BEEN CURED AND
PETITIONER WOULD HAVE BEEN DEPRIVED OF THE FAIR HEARING TO WHICH HE WAS
ENTITLED.  MOSER V. MORTGAGE GUARANTEE CO., SUPRA.  BUT HERE THE
COMMISSIONER'S ERROR WAS BROUGHT TO THE JUDGE'S ATTENTION BY PETITIONER
AND WE CANNOT ASSUME THAT THE JUDGE WAS UNMINDFUL OF THIS OBJECTION. 
THE DISTRICT COURT DISREGARDED THE COMMISSIONER'S $25,000 VALUATION,
HEARD ARGUMENT BY COUNSEL, MADE AN INDEPENDENT AND COMPLETE REVIEW OF
THE CONFLICTING EVIDENCE INTRODUCED AT THE HEARING BEFORE THE
COMMISSIONER, AND FIXED THE VALUATION AT $20,000 "UNDER THE EVIDENCE
BEFORE ME."  ALL OF THIS WAS AUTHORIZED BY ORDER 47 INASMUCH AS THE
COMMISSIONER'S PERSONAL INVESTIGATION MADE HIS FINDING AS TO VALUE
"CLEARLY ERRONEOUS." 

IT IS THUS APPARENT THAT THE ERROR OF WHICH PETITIONER COMPLAINS WAS
CURED BY THE DISTRICT COURT.  SINCE NONE OF THE EVIDENCE PROCURED BY
THE COMMISSIONER THROUGH HIS PERSONAL INVESTIGATION WAS INCLUDED IN THE
RECORD CERTIFIED TO THE JUDGE, IT CANNOT BE SAID THAT THE JUDGE'S
$20,000 VALUATION WAS IN ANY WAY GROUNDED ON SUCH IMPROPER EVIDENCE. 
PETITIONER HAD FULL OPPORTUNITY TO EXAMINE AND REBUT ALL THE EVIDENCE
UTILIZED BY THE JUDGE IN FIXING THIS VALUATION. 

THIS PROCEDURE, FURTHERMORE, GAVE PETITIONER THE FULL AND FAIR
HEARING GUARANTEED TO HIM BY CONGRESS.  IF THE CONCILIATION
COMMISSIONER IS PROPERLY AUTHORIZED TO CONDUCT A REAPPRAISAL HEARING
AND COMMITS AN ERROR WHICH CAN BE AND IS CORRECTED BY THE DISTRICT
COURT ON APPEAL, THE HEARING CONTEMPLATED BY SEC. 75(S)(3) HAS BEEN
HAD.  A PARTY IS NOT ENTITLED TO A TRIAL DE NOVO AS OF RIGHT ON THE
REVIEW IN THE DISTRICT COURT, EQUITABLE LIFE ASSURANCE SOCIETY V.
CARMODY, 131 F.2D 318, AND NONE WAS REQUESTED BY PETITIONER.  NOR IS
THERE ANY REQUIREMENT THAT THE JUDGE MUST REVERSE AND REMAND THE CASE
TO THE COMMISSIONER FOR FURTHER HEARINGS OR FOR HIS CONSIDERED JUDGMENT
BASED SOLELY ON THE COMPETENT EVIDENCE.  TO SO HOLD WOULD RENDER
NUGATORY THE DISCRETIONARY POWER GIVEN THE JUDGE BY ORDER 47 TO RECEIVE
FURTHER EVIDENCE HIMSELF OR TO MODIFY OR REJECT, IN WHOLE OR IN PART,
THE COMMISSIONER'S FINDINGS ON APPEAL.  IN ADDITION, IT WOULD MAKE
MANDATORY WHAT IS AT MOST A DISCRETIONARY POWER OF THE JUDGE UNDER SEC.
75(S)(3) TO AUTHORIZE A HEARING BEFORE THE COMMISSIONER. 

THE JUDGMENT BELOW IS ACCORDINGLY AFFIRMED. 

FN1  11 U.S.C. SEC. 203(S)(3). 

FN2  THE PERTINENT PORTION OF SEC. 75(S)(3) PROVIDES THAT "UPON
REQUEST OF ANY SECURED OR UNSECURED CREDITOR, OR UPON REQUEST OF THE
DEBTOR, THE COURT SHALL CAUSE A REAPPRAISAL OF THE DEBTOR'S PROPERTY,
OR IN ITS DISCRETION SET A DATE FOR HEARING, AND AFTER SUCH HEARING,
FIX THE VALUE OF THE PROPERTY, IN ACCORDANCE WITH THE EVIDENCE
SUBMITTED, AND THE DEBTOR SHALL THEN PAY THE VALUE SO ARRIVED AT INTO
COURT  ...  AND THEREUPON THE COURT SHALL, BY AN ORDER, TURN OVER FULL
POSSESSION AND TITLE OF SAID PROPERTY, FREE AND CLEAR OF ENCUMBRANCES
TO THE DEBTOR." 

FN3  SEE ALSO ATLANTIC & BIRMINGHAM RY. CO. V. CORDELE, 125 GA. 373,
54 S.E. 155; RALPH V. SOUTHERN RY. CO., 160 S.C. 229, 158 S.E. 409;
DENVER OMNIBUS & CAB CO. V. J.R. WARD AUCTION CO., 47 COLO. 446, 107 P.
1073; ELSTON V. MCGLAUFLIN, 79 WASH. 355, 140 P. 396; ANDERSON V.
LEBLANG, 125 MISC. 820, 211 N.Y.S. 613. 

FN4  11 U.S.C. FOLLOWING SEC. 53. 

FN5  SEC. 75(S)(4) OF THE BANKRUPTCY ACT, 11 U.S.C. SEC. 203(S)(4);
ORDER 50(11) OF THE GENERAL ORDERS IN BANKRUPTCY, 11 U.S.C. FOLLOWING
SEC. 53; EQUITABLE LIFE ASSURANCE SOCIETY V. CARMODY, 131 F.2D 318,
322; RAIT V. FEDERAL LAND BANK, 135 F.2D 447, 450. 
..END :




CONSUMERS CO. V. KABUSHIKI KAISHA, 320 U.S. 249 


NO. 32.  ARGUED OCTOBER 21, 1943.  - DECIDED NOVEMBER 8, 1943.  - 133
F.2D 781, AFFIRMED. 


1.  FOR DAMAGE TO CARGO BY FIRE NOT CAUSED BY THE "DESIGN OR NEGLECT"
OF THE SHIPOWNER, THE FIRE STATUTE EXTINGUISHES CLAIMS AGAINST THE
VESSEL AS WELL AS CLAIMS AGAINST THE OWNER.  P. 253. 

2.  THAT THE CONTRACTS OF AFFREIGHTMENT WERE SIGNED "FOR MASTER" DOES
NOT REQUIRE A DIFFERENT RESULT.  P. 252. 

3. THERE WAS IN THIS CASE NO WAIVER OF IMMUNITY UNDER THE FIRE
STATUTE.  P. 254. 

4.  THE ETNA MARU, 33 F.2D 232, TO THE EXTENT THAT IT CONFLICTS
HEREWITH, IS DISAPPROVED.  P. 256. 

CONSUMERS IMPORT CO. ET AL. V. KABUSHIKI KAISHA KAWASAKI ZOSENJO ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 319 U.S. 734, TO REVIEW THE AFFIRMANCE OF A DECREE (39
F.SUPP.  349) WHICH, IN A SUIT BY CARGO CLAIMANTS, EXONERATED THE OWNER
AND BAREBOAT CHARTERER OF THE VESSEL FROM LIABILITY FOR DAMAGE BY
FIRE. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, CONSUMERS IMPORT COMPANY AND OTHERS, HOLD BILLS OF
LADING COVERING SEVERAL HUNDRED SHIPMENTS OF MERCHANDISE.  THE
SHIPMENTS WERE DAMAGED OR DESTROYED BY FIRE OR BY THE MEANS USED TO
EXTINGUISH FIRE ON BOARD THE JAPANESE SHIP VENICE MARU ON AUGUST 6,
1934, ON VOYAGE FROM JAPAN TO ATLANTIC PORTS OF THE UNITED STATES. 
RESPONDENT KABUSHIKI KAISHA KAWASAKI ZOSENJO OWNED THE VENICE MARU AND
LET HER TO THE OTHER RESPONDENT, KAWASAKI KISEN KABUSHIKI KAISHA, UNDER
A BAREBOAT FORM OF CHARTER.  THE LATTER WAS OPERATING HER AS A COMMON
CARRIER. 

DAMAGE TO THE CARGO IS CONCEDED FROM CAUSES WHICH ARE SETTLED BY THE
FINDINGS BELOW, WHICH WE DECLINE TO REVIEW.  FN1  UPWARDS OF 660 TONS
OF SARDINE MEAL IN BAGS WAS STOWED IN A SUBSTANTIALLY SOLID MASS IN THE
HOLD.  IN VIEW OF ITS SUSCEPTIBILITY TO HEATING AND COMBUSTION IT HAD
INADEQUATE VENTILATION.  AS THE SHIP NEARED THE PANAMA CANAL, FIRE
BROKE OUT, RESULTING IN DAMAGE TO CARGO AND SHIP.  THE CAUSE OF THE
FIRE IS FOUND TO BE NEGLIGENT STOWAGE OF THE FISH MEAL, WHICH MADE THE
VESSEL UNSEAWORTHY.  THE NEGLIGENCE WAS THAT OF A PERSON EMPLOYED TO
SUPERVISE LOADING TO WHOM RESPONSIBILITY WAS PROPERLY DELEGATED AND WHO
WAS QUALIFIED BY EXPERIENCE TO PERFORM THE WORK.  NO NEGLIGENCE OR
DESIGN OF THE OWNER OR CHARTERER IS FOUND. 

THE CARGO CLAIMANTS FILED LIBELS IN REM AGAINST THE SHIP AND IN
PERSONAM AGAINST THE CHARTERER FOR BREACH OF CONTRACTS OF CARRIAGE. 
THE OWNER JOINED THE CHARTERER IN A PROCEEDING IN ADMIRALTY TO DECREE
EXEMPTION FROM OR LIMITATION OF LIABILITY.  STIPULATION AND SECURITY
WERE SUBSTITUTED FOR THE SHIP IN THE CUSTODY OF THE COURT.  FN2  THE
DISTRICT COURT APPLIED THE SO-CALLED "FIRE STATUTE" TO EXONERATE THE
OWNER ENTIRELY AND THE CHARTERER AND THE SHIP IN ALL EXCEPT MATTERS NOT
MATERIAL TO THE ISSUE HERE.  THE CIRCUIT COURT OF APPEALS AFFIRMED,
TAKING A VIEW OF THE STATUTE IN CONFLICT WITH THAT OF THE FIFTH CIRCUIT
IN THE ETNA MARU, 33 F.2D 232.  TO RESOLVE THE CONFLICT WE GRANTED
CERTIORARI EXPRESSLY LIMITED TO THE QUESTION, "DOES THE FIRE STATUTE
EXTINGUISH MARITIME LIENS FOR CARGO DAMAGE, OR IS ITS OPERATION
CONFINED TO IN PERSONAM LIABILITY ONLY?"  FN3 

THE FIRE STATUTE READS:  "NO OWNER OF ANY VESSEL SHALL BE LIABLE TO
ANSWER FOR OR MAKE GOOD TO ANY PERSON ANY LOSS OR DAMAGE, WHICH MAY
HAPPEN TO ANY MERCHANDISE WHATSOEVER, WHICH SHALL BE SHIPPED, TAKEN IN,
OR PUT ON BOARD ANY SUCH VESSEL, BY REASON OR BY MEANS OF ANY FIRE
HAPPENING TO OR ON BOARD THE VESSEL, UNLESS SUCH FIRE IS CAUSED BY THE
DESIGN OR NEGLECT OF SUCH OWNER."  FN4 THE STATUTE ALSO PROVIDES THAT A
CHARTERER SUCH AS WE HAVE HERE STANDS IN THE POSITION OF THE OWNER FOR
PURPOSES OF LIMITATION OR EXEMPTION OF LIABILITY.  FN5 

SINCE "NEGLECT OF THE OWNER" MEANS HIS PERSONAL NEGLIGENCE, OR IN
CASE OF A CORPORATE OWNER, NEGLIGENCE OF ITS MANAGING OFFICERS AND
AGENTS AS DISTINGUISHED FROM THAT OF THE MASTER OR SUBORDINATES,  FN6
THE FINDINGS BELOW TAKE THE CASE OUT OF THE ONLY EXCEPTION PROVIDED BY
STATUTE. 

APART FROM THIS INAPPLICABLE EXCEPTION THE IMMUNITY GRANTED APPEARS
ON ITS FACE COMPLETE.  BUT CLAIMANTS CONTEND THAT BECAUSE THEIR
CONTRACTS OF AFFREIGHTMENT WERE SIGNED "FOR MASTER" THEY BECAME UNDER
MARITIME LAW SHIP'S CONTRACTS, INDEPENDENTLY OF ANY OWNERS' CONTRACTS,
AND THAT THE SHIP ITSELF STANDS BOUND TO THE CARGO THOUGH THE OWNER MAY
BE FREED.  IT SEEMS UNNECESSARY TO EXAMINE THE VALIDITY OF THE CLAIM
THAT APART FROM THE STATUTE CLAIMANTS UNDER THE CIRCUMSTANCES WOULD
HAVE A LIEN ON THE VESSEL, OR TO REVIEW THE HISTORICAL DEVELOPMENT OF
THE FICTION THAT THE SHIP FOR SOME PURPOSES IS TREATED AS A JURAL
PERSONALITY APART FROM THAT OF ITS OWNER.  IF WE ASSUME THAT THE
CIRCUMSTANCES ARE APPROPRIATE OTHERWISE FOR SUCH A LIEN AS CLAIMANTS
ASSERT, IT ONLY BRINGS US TO THE QUESTION WHETHER THE FIRE STATUTE CUTS
ACROSS IT AS WELL AS OTHER DOCTRINES OF LIABILITY AND EXTINGUISHES
CLAIMS AGAINST THE VESSEL AS WELL AS AGAINST THE OWNER. 

THE PROVISION HERE IN CONTROVERSY IS SEC. 1 OF THE ACT OF MARCH 3,
1851.  DESPITE ITS ALL BUT A CENTURY OF EXISTENCE, THE CONTENTION HERE
MADE HAS NEVER BEEN BEFORE THIS COURT.  SECTIONS 3 AND 4 OF THE SAME
ACT IN OTHER CIRCUMSTANCES PROVIDED LIMITATIONS OF LIABILITY, AND AS TO
THEM A QUESTION WAS CONSIDERED BY THIS COURT IN THE CITY OF NORWICH,
118 U.S. 468, 502(1886), STATED THUS:  "IT IS NEXT CONTENDED THAT THE
ACT OF CONGRESS DOES NOT EXTEND TO THE EXONERATION OF THE SHIP, BUT
ONLY EXONERATES THE OWNERS BY A SURRENDER OF THE SHIP AND FREIGHT, AND,
THEREFORE, THAT THE PLEA OF LIMITED LIABILITY CANNOT BE RECEIVED IN A
PROCEEDING IN REM."  THE COURT REJECTED THE CONTENTION AND HELD THAT
WHEN THE OWNER SATISFIED THE LIMITED OBLIGATION FIXED ON HIM BY
STATUTE, OWNER AND VESSEL WERE BOTH DISCHARGED.  THE COURT SAID THAT
"TO SAY THAT AN OWNER IS NOT LIABLE, BUT THAT HIS VESSEL IS LIABLE,
SEEMS TO US LIKE TALKING IN RIDDLES."  THE RIDDLE AFTER MORE THAN HALF
A CENTURY REPEATED TO US IN DIFFERENT CONTEXT DOES NOT APPEAR TO US TO
HAVE IMPROVED WITH AGE. 

IN THE MEANTIME, WITH THE EXCEPTION OF THE ETNA MARU, THE LOWER
FEDERAL COURTS HAVE UNIFORMLY CONSTRUED THE STATUTES AS EXONERATING THE
SHIP AS WELL AS THE OWNER.  FN7  WE WOULD BE RELUCTANT TO OVERTURN AN
INTERPRETATION SUPPORTED BY SUCH CONSENSUS OF OPINION AMONG COURTS OF
ADMIRALTY, EVEN IF ITS JUSTIFICATION WERE MORE DOUBTFUL THAN THIS
APPEARS.  FN8 

PETITIONERS SAY, HOWEVER, THAT SUCH OF THESE DECISIONS AS ARE NOT
DISTINGUISHABLE WERE "ILL-CONSIDERED."  WE THINK THAT THE BETTER REASON
AS WELL AS THE WEIGHT OF AUTHORITY REFUTES PETITIONERS.  TO SUSTAIN
THEIR CONTENTION WOULD DENY EFFECT TO THE FIRE STATUTE AS AN IMMUNITY
AND CONVERT IT INTO A LIMITATION OF LIABILITY TO THE VALUE OF THE
SHIP.  THIS IS WHAT CONGRESS DID IN OTHER SECTIONS OF THE SAME ACT  FN9
AND ELSEWHERE,  FN10  WHICH SUGGESTS THAT IT USED DIFFERENT LANGUAGE
HERE BECAUSE IT HAD A DIFFERENT PURPOSE TO ACCOMPLISH.  CONGRESS HAS
SAID THAT THE OWNER SHALL NOT "ANSWER FOR" THIS LOSS IN QUESTION. 
CLAIMANT SAYS THIS MEANS IN EFFECT THAT HE SHALL ANSWER ONLY WITH HIS
SHIP.  BUT THE OWNER WOULD NEVER ANSWER FOR A LOSS EXCEPT WITH HIS
PROPERTY, SINCE EXECUTION AGAINST THE BODY WAS NOT AT ANY TIME IN
LEGISLATIVE CONTEMPLATION.  THERE COULD BE NO PRACTICAL EXONERATION OF
THE OWNER THAT DID NOT AT THE SAME TIME EXEMPT HIS PROPERTY.  IF THE
OWNER BY STATUTE IS TOLD THAT HE NEED NOT "MAKE GOOD" TO THE SHIPPER,
HOW MAY WE SAY THAT HE SHALL GIVE UP HIS SHIP FOR THAT VERY PURPOSE? 
IT SEEMS TO US THAT CONGRESS HAS, WITH THE EXCEPTION STATED IN THE ACT,
EXTINGUISHED FIRE CLAIMS AS AN INCIDENT OF CONTRACTS OF CARRIAGE, AND
THAT NO FICTION AS TO SEPARATE PERSONALITY OF THE SHIP MAY REVIVE
THEM.  THERE MAY, OF COURSE, BE A WAIVER OF THE BENEFITS OF THE FIRE
STATUTE, BUT NONE IS PRESENT IN THIS CASE. 

CLAIMANTS URGE THAT THE STATUTE AS CONSTRUED GOES BEYOND ANY OTHER
EXEMPTION FROM LIABILITY FOR NEGLIGENCE ALLOWED TO A COMMON CARRIER,
AND THAT IT SHOULD THEREFORE BE CURTAILED BY STRICT CONSTRUCTION.  WE
THINK, HOWEVER, THAT CLAIMANTS' CONTENTION WOULD RESULT IN A
FRUSTRATION OF THE PURPOSE OF THE ACT. 

AT COMMON LAW THE SHIPOWNER WAS LIABLE AS AN INSURER FOR FIRE DAMAGE
TO CARGO.  FN11  WE MAY BE SURE THAT THIS LEGAL POLICY OF ANNEXING AN
INSURER'S LIABILITY TO THE CONTRACT OF CARRIAGE LOADED THE
TRANSPORTATION RATES OF PRUDENT CARRIERS TO COMPENSATE THE RISK.  LONG
BEFORE CONGRESS DID SO, ENGLAND HAD SEPARATED THE INSURANCE LIABILITY
FROM THE CARRIER'S DUTY.  FN12  TO ENABLE OUR MERCHANT MARINE TO
COMPETE, CONGRESS ENACTED THIS STATUTE.  FN13  IT WAS A SHARP DEPARTURE
FROM THE CONCEPTS THAT HAD USUALLY GOVERNED THE COMMON CARRIER
RELATION, BUT IT IS NOT TO BE JUDGED AS IF APPLIED TO LAND CARRIAGE,
WHERE SHIPMENTS ARE RELATIVELY MULTITUDINOUS AND SMALL AND WHERE IT
MIGHT WELL WORK INJUSTICE AND HARDSHIP.  THE CHANGE ON SEA TRANSPORT
SEEMS LESS DRASTIC IN ECONOMIC EFFECTS THAN IN TERMS OF DOCTRINE.  IT
ENABLED THE CARRIER TO COMPETE BY OFFERING A CARRIAGE RATE THAT PAID
FOR CARRIAGE ONLY, WITHOUT LOADING IT FOR FIRE LIABILITY.  THE SHIPPER
WAS FREE TO CARRY HIS OWN FIRE RISK, BUT IF HE DID NOT CARE TO DO SO IT
WAS WELL KNOWN THAT THOSE WHO MADE A BUSINESS OF RISK-TAKING WOULD
ISSUE HIM A SEPARATE CONTRACT OF FIRE INSURANCE.  CONGRESS HAD SIMPLY
SEVERED THE INSURANCE FEATURES FROM THE CARRIAGE FEATURES OF SEA
TRANSPORT AND LEFT THE SHIPPER TO BUY EACH SEPARATELY.  WHILE IT DOES
NOT OFTEN COME TO THE SURFACE OF THE RECORD IN ADMIRALTY PROCEEDINGS,
WE ARE NOT UNAWARE THAT IN COMMERCIAL PRACTICE THE SHIPPER WHO BUYS
CARRIAGE FROM THE SHIPOWNER USUALLY BUYS FIRE PROTECTION FROM AN
INSURANCE COMPANY, THUS OBTAINING IN TWO CONTRACTS WHAT ONCE MIGHT HAVE
BEEN EMBODIED IN ONE.  THE PURPOSE OF THE STATUTE TO RELIEVE CARRIAGE
RATES OF THE INSURANCE BURDEN WOULD BE LARGELY DEFEATED IF WE WERE TO
ADOPT AN INTERPRETATION WHICH WOULD ENABLE CARGO CLAIMANTS AND THEIR
SUBROGEES TO SHIFT TO THE SHIP THE RISK OF WHICH CONGRESS RELIEVED THE
OWNER.  THIS WOULD RESTORE THE INSURANCE BURDEN AT LEAST IN LARGE PART
TO THE COST OF CARRIAGE AND HAMPER THE COMPETITIVE OPPORTUNITY IT WAS
PURPOSED TO FOSTER BY PUTTING OUR LAW ON AN EQUAL BASIS WITH THAT OF
ENGLAND. 

OUR CONCLUSION IS THAT ANY MARITIME LIENS FOR CLAIMANTS' CARGO DAMAGE
ARE EXTINGUISHED BY THE FIRE STATUTE.  IN SO FAR AS THE DECISION IN THE
ETNA MARU CONFLICTS, IT IS DISAPPROVED, AND THE JUDGMENT OF THE COURT
BELOW IS AFFIRMED. 

FN1  THE FACTS ARE CONSIDERED AT LENGTH IN THE OPINION OF THE COURT
OF APPEALS, 133 F.2D 781. 

FN2  ADMIRALTY RULE 51. 

THE ALIEN PROPERTY CUSTODIAN ON JULY 30, 1942, VESTED IN HIMSELF ALL
PROPERTY IN THE UNITED STATES OF RESPONDENT KAWASAKI KISEN KABUSHIKI
KAISHA.  VESTING ORDERS 77 AND 80, 7 FEDERAL REGISTER 7048, 7049.  ON
MARCH 15, 1943, HE VESTED IN HIMSELF ALL PROPERTY OF TOKYO MARINE &
FIRE INSURANCE CO. LTD., A JAPANESE CORPORATION WHICH ADVANCED CASH
COLLATERAL TO THE SURETY WHO BECAME SUCH IN THE AD INTERIM
STIPULATION.  VESTING ORDER 1084, 8 FEDERAL REGISTER 3647. 

FN3  319 U.S. 734. 

FN4  ACT OF MARCH 3, 1851, SEC. 1, NOW 46 U.S.C. SEC. 182, FORMERLY
R.S. SEC. 4282. 

FN5  ACT OF MARCH 3, 1851, SEC. 5, NOW 46 U.S.C. SEC. 186. 

FN6  WALKER V. TRANSPORTATION CO., 3 WALL.  150; CRAIG V. CONTINENTAL
INS. CO., 141 U.S. 638, 647; EARLE & STODDART V. ELLERMAN'S WILSON
LINE, 287 U.S. 420, 424. 

FN7  DILL V. THE BERTRAM, FED. CAS. 3910; KEENE V. THE WHISTLER, FED.
CAS. 7645; THE RAPID TRANSIT, 52 F. 320; THE SALVORE, 60 F.2D 683; THE
OLDER, 65 F.2D 359; THE PRESIDENT WILSON, 5 F.SUPP.  684; SEE EARLE &
STODDART V. ELLERMAN'S WILSON LINE, 287 U.S. 420, 427, N. 3; THE
BUCKEYE STATE, 39 F.SUPP.  344, 346-47. 

FN8  SEE UNITED STATES V. RYAN, 284 U.S. 167, 174; MISSOURI V. ROSS,
299 U.S. 72, 75. 

FN9  SECS. 2, 3, ACT OF MARCH 3, 1851. 

FN10  HARTER ACT OF FEBRUARY 13, 1893, 46 U.S.C. SECS. 190-96. 

FN11  NEW JERSEY STEAM NAVIGATION CO. V. MERCHANTS' BANK, 6 HOW. 
344, 381.  THE ACT OF MARCH 3, 1851, FOLLOWED SOON AFTER AND PROBABLY
WAS ENACTED IN CONSEQUENCE OF THIS DECISION.  SEE THE GREAT WESTERN,
118 U.S. 520, 533. 

FN12  THIS COURT HAS HERETOFORE POINTED OUT THAT THE ACT OF MARCH 3,
1851 WAS PATTERNED ON ENGLISH STATUTES, INCLUDING ACT OF 7 GEORGE II,
C. 15, PASSED IN 1734, AND 26 GEORGE III, C. 86(1786).  SEE NORWICH CO.
V. WRIGHT, 13 WALL.  104, 117 ET SEQ.; THE MAIN V. WILLIAMS, 152 U.S.
122, 124. 

FN13  SENATOR HAMLIN REPORTED THE BILL FROM THE COMMITTEE ON COMMERCE
ON JANUARY 25, 1851 AND SAID, "THIS BILL IS PREDICATED ON WHAT IS NOW
THE ENGLISH LAW, AND IT IS DEEMED ADVISABLE BY THE COMMITTEE ON
COMMERCE THAT THE AMERICAN MARINE SHOULD STAND AT HOME AND ABROAD AS
WELL AS THE ENGLISH MARINE."  23 CONG. GLOBE 332. 

ON FEBRUARY 26, 1851, SPEAKING TO THE BILL, SENATOR HAMLIN SAID:
"THESE ARE THE PROVISIONS OF THE BILL.  IT IS TRUE THAT THE CHANGES ARE
MOST RADICAL FROM THE COMMON LAW UPON THE SUBJECT; BUT THEY ARE
RENDERED NECESSARY, FIRST, FROM THE FACT THAT THE ENGLISH COMMON LAW
SYSTEM REALLY NEVER HAD AN APPLICATION TO THIS COUNTRY, AND, SECOND,
THAT THE ENGLISH GOVERNMENT HAS CHANGED THE LAW, WHICH IS A VERY STRONG
AND ESTABLISHED REASON WHY WE SHOULD PLACE OUR COMMERCIAL MARINE UPON
AN EQUAL FOOTING WITH HERS.  WHY NOT GIVE TO THOSE WHO NAVIGATE THE
OCEAN AS MANY INDUCEMENTS TO DO SO AS ENGLAND HAS DONE?  WHY NOT PLACE
THEM UPON THAT GREAT THEATRE WHERE WE ARE TO HAVE THE GREAT CONTEST FOR
THE SUPREMACY OF THE COMMERCE OF THE WORLD?  THAT IS WHAT THIS BILL
SEEKS TO DO, AND IT ASKS NO MORE."  23 CONG. GLOBE 715. 
..END :




















EX PARTE ABERNATHY, 320 U.S. 219 


DECIDED OCTOBER 18, 1943.  - APPLICATIONS DENIED. 


1.  THE EXERCISE BY THIS COURT OF THE POWER CONFERRED UPON IT TO ISSUE
WRITS OF HABEAS CORPUS (28 U.S.C. SECS. 377, 451) IN AID OF ITS
APPELLATE JURISDICTION IS DISCRETIONARY; AND, SAVE IN EXCEPTIONAL
CIRCUMSTANCES, THE COURT DOES NOT EXERCISE THE POWER WHERE AN ADEQUATE
REMEDY MAY BE HAD IN A LOWER FEDERAL COURT OR WHERE, IF THE RELIEF
SOUGHT IS FROM A JUDGMENT OF A STATE COURT, THE PETITIONER HAS NOT
EXHAUSTED HIS REMEDIES IN THE STATE COURTS.  P. 219. 

2.  REFUSAL OF THE WRIT, WITHOUT MORE, IS NOT AN ADJUDICATION ON THE
MERITS AND IS TO BE TAKEN AS WITHOUT PREJUDICE TO AN APPLICATION TO ANY
OTHER COURT FOR THE RELIEF SOUGHT.  P. 220. 

EX PARTE ABERNATHY. 

NO. - .   ONE MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS
CORPUS* . 

*TOGETHER WITH NO. - , EX PARTE DEXTER C. DAYTON; NO. - , EX PARTE
FREDERICK T. HANSEN AND SAM BONJIORNO; NO. - , EX PARTE FLOYD J.
KESLING; NO. - , EX PARTE LOUIS BURALL; NO. - , EX PARTE OLIVER GOBIN;
NO. - , EX PARTE PETER J. C. DONNELLY; NO. - , EX PARTE ALFRED MAURICE;
NO. - , EX PARTE SOL GOLDSMITH; NO. - , EX PARTE PAUL DAVIS; NO. - , EX
PARTE ROBERT HUTTO; NO. - , EX PARTE ALFRED FRITERS; NO. - , EX PARTE
WILFRED DOZA; NO. - , EX PARTE R. J. HUGHES; AND NO. - , EX PARTE JOHN
RUSSELL MILLER, ALSO ON MOTIONS FOR LEAVE TO FILE PETITIONS FOR WRITS
OF HABEAS CORPUS. 

PER CURIAM. 

THE APPLICATIONS ARE SEVERALLY DENIED. 

IN THESE CASES PETITIONERS INVOKE THE EXERCISE OF THE JURISDICTION
CONFERRED ON THIS COURT BY 28 U.S.C. SECS. 377, 451, TO ISSUE WRITS OF
HABEAS CORPUS IN AID OF ITS APPELLATE JURISDICTION.  CF. EX PARTE PERU,
318 U.S. 578, 582-3.  THAT JURISDICTION IS DISCRETIONARY, ID. 584;
BOWEN V. JOHNSTON, 306 U.S. 19, 27, AND THIS COURT DOES NOT, SAVE IN
EXCEPTIONAL CIRCUMSTANCES, EXERCISE IT IN CASES WHERE AN ADEQUATE
REMEDY MAY BE HAD IN A LOWER FEDERAL COURT, EX PARTE CURRENT, 314 U.S.
578; EX PARTE SPAULDING, 317 U.S. 593; EX PARTE HAWK, 318 U.S. 746, OR,
IF THE RELIEF SOUGHT IS FROM THE JUDGMENT OF A STATE COURT, WHERE THE
PETITIONER HAS NOT EXHAUSTED HIS REMEDIES IN THE STATE COURTS, MOONEY
V. HOLOHAN, 294 U.S. 103, 115; EX PARTE BOTWINSKI, 314 U.S. 586; EX
PARTE DAVIS, 317 U.S. 592, 318 U.S. 412; EX PARTE WILLIAMS, 317 U.S.
604.  REFUSAL OF THE WRIT, WITHOUT MORE, IS NOT AN ADJUDICATION ON THE
MERITS AND IS TO BE TAKEN AS WITHOUT PREJUDICE TO AN APPLICATION TO ANY
OTHER COURT FOR THE RELIEF SOUGHT. 
..END :























MARCONI WIRELESS CO. V. U.S., 320 U.S. 1 


NO. 369.  ARGUED APRIL 9, 12, 1943.  - DECIDED JUNE 21, 1943.  - 99
CT.CLS.  1, AFFIRMED IN PART. 


1.  THE BROAD CLAIMS OF THE MARCONI PATENT NO. 763,772, FOR
IMPROVEMENTS IN APPARATUS FOR WIRELESS TELEGRAPHY - BRIEFLY, FOR A
STRUCTURE AND ARRANGEMENT OF FOUR HIGH-FREQUENCY CIRCUITS WITH MEANS OF
INDEPENDENTLY ADJUSTING EACH SO THAT ALL FOUR MAY BE BROUGHT INTO
ELECTRICAL RESONANCE WITH ONE ANOTHER - HELD INVALID BECAUSE
ANTICIPATED.  P. 38. 

MARCONI SHOWED NO INVENTION OVER STONE (PATENT NO. 714,756) BY MAKING
THE TUNING OF HIS ANTENNA CIRCUIT ADJUSTABLE, OR BY USING LODGE'S
(PATENT NO. 609,154) VARIABLE INDUCTANCE FOR THAT PURPOSE.  WHETHER
STONE'S PATENT INVOLVED INVENTION IS NOT HERE DETERMINED. 

2.  MERELY MAKING A KNOWN ELEMENT OF A KNOWN COMBINATION ADJUSTABLE
BY A MEANS OF ADJUSTMENT KNOWN TO THE ART, WHEN NO NEW OR UNEXPECTED
RESULT IS OBTAINED, IS NOT INVENTION.  P. 32. 

3.  AS BETWEEN TWO INVENTORS, PRIORITY OF INVENTION WILL BE AWARDED
TO THE ONE WHO BY SATISFYING PROOF CAN SHOW THAT HE FIRST CONCEIVED OF
THE INVENTION.  P. 34. 

4.  COMMERCIAL SUCCESS ACHIEVED BY THE LATER INVENTOR AND PATENTEE
CANNOT SAVE HIS PATENT FROM THE DEFENSE OF ANTICIPATION BY A PRIOR
INVENTOR.  P. 35. 

5.  IN THE EXERCISE OF ITS APPELLATE POWER, THIS COURT MAY CONSIDER
ANY EVIDENCE OF RECORD WHICH, WHETHER OR NOT CALLED TO THE ATTENTION OF
THE COURT BELOW, IS RELEVANT TO AND MAY AFFECT THE CORRECTNESS OF ITS
DECISION SUSTAINING OR DENYING ANY CONTENTION WHICH A PARTY HAS MADE
BEFORE IT.  P. 44. 

6.  ALTHOUGH THE INTERLOCUTORY DECISION OF THE COURT OF CLAIMS IN
THIS CASE THAT CLAIM 16 OF MARCONI PATENT NO. 763,772 WAS VALID AND
INFRINGED WAS APPEALABLE, THE DECISION WAS NOT FINAL UNTIL THE
CONCLUSION OF THE ACCOUNTING; HENCE, THE COURT DID NOT LACK POWER AT
ANY TIME PRIOR TO ENTRY OF ITS FINAL JUDGMENT AT THE CLOSE OF THE
ACCOUNTING TO RECONSIDER ANY PORTION OF ITS DECISION AND REOPEN ANY
PART OF THE CASE, AND IT WAS FREE IN ITS DISCRETION TO GRANT A
REARGUMENT BASED EITHER ON ALL THE EVIDENCE THEN OF RECORD OR ONLY THE
EVIDENCE BEFORE THE COURT WHEN IT RENDERED ITS INTERLOCUTORY DECISION,
OR TO REOPEN THE CASE FOR FURTHER EVIDENCE.  P. 47. 

7.  THE JUDGMENT OF THE COURT OF CLAIMS HOLDING VALID AND INFRINGED
CLAIM 16 OF MARCONI PATENT NO. 763,772 IS VACATED AND REMANDED IN ORDER
THAT THAT COURT MAY DETERMINE WHETHER TO RECONSIDER ITS DECISION IN THE
LIGHT OF THE GOVERNMENT'S PRESENT CONTENTION THAT CLAIM 16, AS
CONSTRUED BY THE COURT OF CLAIMS, WAS ANTICIPATED BY THE PATENTS TO
PUPIN, NO. 640,516, AND FESSENDEN, NO. 706,735.  P. 48. 

8.  A DEFENDANT IN A PATENT INFRINGEMENT SUIT WHO HAS ADDED NON
INFRINGING AND VALUABLE IMPROVEMENTS WHICH CONTRIBUTED TO THE MAKING OF
THE PROFITS IS NOT LIABLE FOR BENEFITS RESULTING FROM SUCH
IMPROVEMENTS.  P. 50. 

9.  DISCLOSURE BY PUBLICATION MORE THAN TWO YEARS BEFORE APPLICATION
FOR A PATENT BARS ANY CLAIM FOR A PATENT FOR AN INVENTION EMBODYING THE
PUBLISHED DISCLOSURE.  P. 57. 

10.  INVALIDITY IN PART OF A PATENT DEFEATS THE ENTIRE PATENT UNLESS
THE INVALID PORTION WAS CLAIMED THROUGH INADVERTENCE, ACCIDENT, OR
MISTAKE, AND WITHOUT ANY FRAUDULENT OR DECEPTIVE INTENTION, AND IS
DISCLAIMED WITHOUT UNREASONABLE NEGLECT OR DELAY.  P. 57. 

11.  FLEMING PATENT NO. 803,864 HELD INVALID BY REASON OF AN IMPROPER
DISCLAIMER.  P. 58. 

THE SPECIFICATIONS PLAINLY CONTEMPLATED THE USE OF THE CLAIMED DEVICE
WITH LOW AS WELL AS HIGH FREQUENCY CURRENTS, AND THE PATENT WAS INVALID
FOR WANT OF INVENTION SO FAR AS APPLICABLE TO USE WITH LOW FREQUENCY
CURRENTS; THE CLAIM WAS NOT INADVERTENT, AND THE DELAY OF TEN YEARS IN
MAKING THE DISCLAIMER WAS UNREASONABLE. 

12.  THAT THE PATENTEE'S CLAIM FOR MORE THAN HE HAD INVENTED WAS NOT
INADVERTANT, AND THAT HIS DELAY IN MAKING DISCLAIMER WAS UNREASONABLE,
WERE QUESTIONS OF FACT; BUT, SINCE THE COURT OF CLAIMS IN ITS OPINION
IN THIS CASE PLAINLY STATES ITS CONCLUSIONS AS TO THEM, AND THOSE
CONCLUSIONS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE, ITS OMISSION TO MAKE
FORMAL FINDINGS OF FACT IS IMMATERIAL.  P. 58. 

13.  THE DISCLAIMER STATUTES ARE APPLICABLE TO ONE WHO ACQUIRES A
PATENT UNDER AN ASSIGNMENT OF THE APPLICATION.  P. 59. 

MARCONI WIRELESS TELEGRAPH COMPANY OF AMERICA V. UNITED STATES* . 

*TOGETHER WITH NO. 373, UNITED STATES V. MARCONI WIRELESS TELEGRAPH
COMPANY OF AMERICA, ALSO ON WRIT OF CERTIORARI, 317 U.S. 620, TO THE
COURT OF CLAIMS. 

CERTIORARI TO THE COURT OF CLAIMS. 

WRITS OF CERTIORARI, 317 U.S. 620, ON CROSS-PETITIONS TO REVIEW A
JUDGMENT IN A SUIT AGAINST THE UNITED STATES TO RECOVER DAMAGES FOR
INFRINGEMENT OF PATENTS.  SEE 81 CT. CLS. 741. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE MARCONI COMPANY BROUGHT THIS SUIT IN THE COURT OF CLAIMS PURSUANT
TO 35 U.S.C. SEC. 68, TO RECOVER DAMAGES FOR INFRINGEMENT OF FOUR
UNITED STATES PATENTS.  TWO, NO. 763,772, AND REISSUE NO. 11,913, WERE
ISSUED TO MARCONI, A THIRD, NO. 609,154, TO LODGE, AND A FOURTH, NO.
803,684, TO FLEMING.  THE COURT HELD THAT THE MARCONI REISSUE PATENT
WAS NOT INFRINGED.  IT HELD ALSO THAT THE CLAIMS IN SUIT, OTHER THAN
CLAIM 16, OF THE MARCONI PATENT NO. 763,772, ARE INVALID; AND THAT
CLAIM 16 OF THE PATENT IS VALID AND WAS INFRINGED.  IT GAVE JUDGMENT
FOR PETITIONER ON THIS CLAIM IN THE SUM OF $42,984.93 WITH INTEREST. 
IT HELD THAT THE LODGE PATENT WAS VALID AND INFRINGED, AND THAT THE
FLEMING PATENT WAS NOT INFRINGED AND WAS RENDERED VOID BY AN IMPROPER
DISCLAIMER.  THE CASE COMES HERE ON CERTIORARI, 317 U.S. 620, 28 U.S.C.
SEC. 288(B), ON PETITION OF THE MARCONI COMPANY IN NO. 369, TO REVIEW
THE JUDGMENT OF THE COURT OF CLAIMS HOLDING INVALID THE CLAIMS IN SUIT,
OTHER THAN CLAIM 16, OF THE MARCONI PATENT, AND HOLDING THE FLEMING
PATENT INVALID AND NOT INFRINGED, AND ON PETITION OF THE GOVERNMENT IN
NO. 373, TO REVIEW THE DECISION ALLOWING RECOVERY FOR INFRINGEMENT OF
CLAIM 16 OF THE MARCONI PATENT.  NO REVIEW WAS SOUGHT BY EITHER PARTY
OF SO MUCH OF THE COURT'S JUDGMENT AS SUSTAINED THE LODGE PATENT AND
HELD THE FIRST MARCONI REISSUE PATENT NOT INFRINGED. 

MARCONI PATENT NO. 763,772. 

THIS PATENT, GRANTED JUNE 28, 1904, ON AN APPLICATION FILED NOVEMBER
10, 1900, AND ASSIGNED TO THE MARCONI COMPANY ON MARCH 6, 1905,  FN1
IS FOR IMPROVEMENTS IN APPARATUS FOR WIRELESS TELEGRAPHY BY MEANS OF
HERTZIAN OSCILLATIONS OR ELECTRICAL WAVES.  IN WIRELESS TELEGRAPHY,
SIGNALS GIVEN BY MEANS OF CONTROLLED ELECTRICAL PULSATIONS ARE
TRANSMITTED THROUGH THE ETHER BY MEANS OF THE SOCALLED HERTZIAN OR
RADIO WAVES.  HERTZIAN WAVES ARE ELECTRICAL OSCILLATIONS WHICH TRAVEL
WITH THE SPEED OF LIGHT AND HAVE VARYING WAVE LENGTHS AND CONSEQUENT
FREQUENCIES INTERMEDIATE BETWEEN THE FREQUENCY RANGES OF LIGHT AND
SOUND WAVES.  THE TRANSMITTING APPARATUS USED FOR SENDING THE SIGNALS
IS CAPABLE, WHEN ACTUATED BY A TELEGRAPH KEY OR OTHER SIGNALLING
DEVICE, OF PRODUCING, FOR SHORT PERIODS OF VARIABLE LENGTHS, ELECTRICAL
OSCILLATIONS OF RADIO FREQUENCY (OVER 10,000 CYCLES PER SECOND) IN AN
ANTENNA OR OPEN CIRCUIT FROM WHICH THE OSCILLATIONS ARE RADIATED TO A
DISTANT RECEIVING APPARATUS.  THE RECEIVER HAS AN OPEN ANTENNA CIRCUIT
WHICH IS ELECTRICALLY RESPONSIVE TO THE TRANSMITTED WAVES AND IS
CAPABLE OF USING THOSE RESPONSES TO ACTUATE BY MEANS OF A RELAY OR
AMPLIFIER ANY CONVENIENT FORM OF SIGNALLING APPARATUS FOR MAKING
AUDIBLE AN ELECTRICALLY TRANSMITTED SIGNAL, SUCH AS A TELEGRAPH SOUNDER
OR A LOUD SPEAKER.  IN BRIEF, SIGNALS AT THE TRANSMITTER ARE UTILIZED
TO CONTROL HIGH FREQUENCY ELECTRICAL OSCILLATIONS WHICH ARE RADIATED BY
AN ANTENNA THROUGH THE ETHER TO THE DISTANT RECEIVER AND THERE PRODUCE
AN AUDIBLE OR VISIBLE SIGNAL. 

ALL OF THESE WERE FAMILIAR DEVICES AT THE TIME OF MARCONI'S
APPLICATION FOR THE PATENT NOW IN SUIT.  BY THAT TIME RADIO HAD PASSED
FROM THE THEORETICAL TO THE PRACTICAL AND COMMERCIALLY SUCCESSFUL. 
FOUR YEARS BEFORE, MARCONI HAD APPLIED FOR HIS ORIGINAL AND BASIC
PATENT, WHICH WAS GRANTED AS NO. 586,193, JULY 13, 1897 AND REISSUED
JUNE 4, 1901 AS REISSUE NO. 11,913.  HE APPLIED FOR HIS CORRESPONDING
BRITISH PATENT, NO. 12039 OF 1896, ON JUNE 2, 1896.  MARCONI'S ORIGINAL
PATENT SHOWED A TWO-CIRCUIT SYSTEM, IN WHICH THE HIGH FREQUENCY
OSCILLATIONS ORIGINATED IN THE TRANSMITTER ANTENNA CIRCUIT AND THE
DETECTING DEVICE WAS CONNECTED DIRECTLY IN THE RECEIVER ANTENNA
CIRCUIT.  BETWEEN 1896 AND 1900 HE DEMONSTRATED ON NUMEROUS OCCASIONS
THE PRACTICAL SUCCESS OF HIS APPARATUS, ATTAINING SUCCESSFUL
TRANSMISSION AT DISTANCES OF 70 AND 80 MILES.  DURING THOSE YEARS HE
APPLIED FOR A LARGE NUMBER OF PATENTS IN THIS AND OTHER COUNTRIES FOR
IMPROVEMENTS ON HIS SYSTEM OF RADIO COMMUNICATION.  FN2 

THE PARTICULAR ADVANCE SAID TO HAVE BEEN ACHIEVED BY THE MARCONI
PATENT WITH WHICH WE ARE HERE CONCERNED WAS THE USE OF TWO HIGH
FREQUENCY CIRCUITS IN THE TRANSMITTER AND TWO IN THE RECEIVER, ALL FOUR
SO ADJUSTED AS TO BE RESONANT TO THE SAME FREQUENCY OR MULTIPLES OF IT.
THE CIRCUITS ARE SO CONSTRUCTED THAT THE ELECTRICAL IMPULSES IN THE
ANTENNA CIRCUIT OF THE TRANSMITTER VIBRATE LONGER WITH THE APPLICATION
TO THE TRANSMITTER OF A GIVEN AMOUNT OF ELECTRICAL ENERGY THAN HAD BEEN
THE CASE IN THE PREVIOUS STRUCTURES KNOWN TO THE ART, AND THE
SELECTIVITY AND SENSITIVITY OF THE RECEIVER IS LIKEWISE ENHANCED.  THUS
INCREASED EFFICIENCY IN THE TRANSMISSION AND RECEPTION OF SIGNALS IS
OBTAINED.  THE SPECIFICATIONS OF THE MARCONI PATENT STATE THAT ITS
OBJECT IS "TO INCREASE THE EFFICIENCY OF THE SYSTEM AND TO PROVIDE NEW
AND SIMPLE MEANS WHEREBY OSCILLATIONS OF ELECTRICAL WAVES FROM A
TRANSMITTING STATION MAY BE LOCALIZED WHEN DESIRED AT ANY ONE SELECTED
RECEIVING STATION OR STATIONS OUT OF A GROUP OF SEVERAL RECEIVING
STATIONS." 

THE SPECIFICATIONS DESCRIBE AN ARRANGEMENT OF FOUR HIGH FREQUENCY
CIRCUITS TUNED TO ONE ANOTHER - TWO AT THE SENDING STATION ASSOCIATED
WITH A SOURCE OF LOW FREQUENCY OSCILLATIONS, AND TWO AT THE RECEIVING
STATION ASSOCIATED WITH A RELAY OR AMPLIFIER OPERATING A SIGNALLING
DEVICE.  AT THE SENDING STATION THERE IS AN OPEN ANTENNA CIRCUIT WHICH
IS "A GOOD RADIATOR," CONNECTED WITH THE SECONDARY COIL OF A
TRANSFORMER, AND THROUGH IT INDUCTIVELY COUPLED WITH A CLOSED CIRCUIT,
WHICH IS CONNECTED WITH THE PRIMARY COIL OF THE TRANSFORMER, THIS
CLOSED CIRCUIT BEING A "PERSISTENT OSCILLATOR."  AT THE RECEIVING
STATION THERE IS AN OPEN ANTENNA CIRCUIT CONSTITUTING A "GOOD ABSORBER"
INDUCTIVELY COUPLED WITH A CLOSED CIRCUIT CAPABLE OF ACCUMULATING THE
RECEIVED OSCILLATIONS. 

THE PATENT, IN DESCRIBING THE ARRANGEMENT OF THE APPARATUS SO AS TO
SECURE THE DESIRED RESONANCE OR TUNING, SPECIFIES:  "THE CAPACITY AND
SELF-INDUCTION OF THE FOUR CIRCUITS - I.E., THE PRIMARY AND SECONDARY
CIRCUITS AT THE TRANSMITTING-STATION AND THE PRIMARY AND SECONDARY
CIRCUITS AT ANY ONE OF THE RECEIVING-STATIONS IN A COMMUNICATING SYSTEM
ARE EACH AND ALL TO BE SO INDEPENDENTLY ADJUSTED AS TO MAKE THE PRODUCT
OF THE SELF-INDUCTION MULTIPLIED BY THE CAPACITY THE SAME IN EACH CASE
OR MULTIPLES OF EACH OTHER - THAT IS TO SAY, THE ELECTRICAL TIME
PERIODS OF THE FOUR CIRCUITS ARE TO BE THE SAME OR OCTAVES OF EACH
OTHER."  FN3  AND AGAIN, "IN EMPLOYING THIS INVENTION TO LOCALIZE THE
TRANSMISSION OF INTELLIGENCE AT ONE OF SEVERAL RECEIVING-STATIONS THE
TIME PERIOD OF THE CIRCUITS AT EACH OF THE RECEIVING-STATIONS IS SO
ARRANGED AS TO BE DIFFERENT FROM THOSE OF THE OTHER STATIONS.  IF THE
TIME PERIODS OF THE CIRCUITS OF THE TRANSMITTING-STATION ARE VARIED
UNTIL THEY ARE IN RESONANCE WITH THOSE OF ONE OF THE RECEIVING
STATIONS, THAT ONE ALONE OF ALL THE RECEIVING-STATIONS WILL RESPOND,
PROVIDED THAT THE DISTANCE BETWEEN THE TRANSMITTING AND RECEIVING
STATIONS IS NOT TOO SMALL." 

THE DRAWINGS AND SPECIFICATIONS SHOW A CLOSED CIRCUIT AT THE
TRANSMITTING STATION CONNECTED WITH THE PRIMARY OF AN INDUCTION COIL,
AND EMBRACING A SOURCE OF ELECTRICAL CURRENT AND A CIRCUIT-CLOSING KEY
OR OTHER SIGNALLING DEVICE.  THE SECONDARY OF THE INDUCTION COIL IS
CONNECTED IN A CIRCUIT WHICH INCLUDES A SPARK GAP OR OTHER PRODUCER OF
HIGH FREQUENCY OSCILLATIONS AND, IN A SHUNT AROUND THE SPARK GAP, THE
PRIMARY COIL OF AN OSCILLATION TRANSFORMER AND A CONDENSER, PREFERABLY
SO ARRANGED THAT ITS CAPACITY CAN READILY BE VARIED.  THIS SHUNT
CIRCUIT CONSTITUTES ONE OF THE TWO TUNED CIRCUITS OF THE TRANSMITTER,
AND IS OFTEN REFERRED TO AS THE CLOSED OR CHARGING CIRCUIT.  THE
SECONDARY COIL OF THE TRANSFORMER IS CONNECTED IN THE OPEN OR ANTENNA
CIRCUIT, ONE END OF WHICH IS CONNECTED WITH THE EARTH, THE OTHER TO A
VERTICAL WIRE ANTENNA OR AN ELEVATED PLATE.  THIS ANTENNA CIRCUIT ALSO
INCLUDES AN INDUCTION COIL, PREFERABLY ONE WHOSE INDUCTANCE IS READILY
VARIABLE, LOCATED BETWEEN THE ANTENNA OR PLATE AND THE TRANSFORMER. 

THE RECEIVER CONSISTS OF A SIMILAR ANTENNA CIRCUIT CONNECTED WITH THE
PRIMARY COIL OF A TRANSFORMER, AND HAVING A VARIABLE INDUCTION COIL
LOCATED BETWEEN THE ANTENNA OR PLATE AND THE TRANSFORMER.  A SHUNT
CIRCUIT BRIDGING THE TRANSFORMER AND CONTAINING A CONDENSER WHICH IS
PREFERABLY ADJUSTABLE MAY ALSO BE ADDED.  THE SECONDARY COIL OF THE
TRANSFORMER IS CONNECTED THROUGH ONE OR MORE INTERPOSED INDUCTANCE
COILS, "PREFERABLY OF VARIABLE INDUCTANCE," WITH THE TERMINALS OF A
COHERER  FN4  OR OTHER SUITABLE DETECTOR OF ELECTRICAL OSCILLATIONS. 
THE CLOSED RECEIVER CIRCUIT ALSO CONTAINED ONE OR MORE CONDENSERS. 

THE DEVICES AND ARRANGEMENTS SPECIFIED ARE SUITABLE FOR EFFECTING THE
ELECTRICAL TRANSMISSION OF SIGNALS IN THE MANNER ALREADY INDICATED.  BY
THE MAINTENANCE OF THE SAME HIGH FREQUENCY THROUGHOUT THE FOUR-CIRCUIT
SYSTEM THE CUMULATIVE RESONANCE IS ATTAINED WHICH GIVES THE DESIRED
INCREASED EFFICIENCY IN TRANSMISSION AND INCREASED SELECTIVITY AT THE
RECEIVING STATION. 

THE PATENT DESCRIBES THE OPERATION OF THE FOUR CIRCUITS AS FOLLOWS,
BEGINNING WITH THE TRANSMITTER: 

"IN OPERATION THE SIGNALLING-KEY B IS PRESSED, AND THIS CLOSES THE
PRIMARY OF THE INDUCTION-COIL.  CURRENT THEN RUSHES THROUGH THE
TRANSFORMER-CIRCUIT AND THE CONDENSER E IS CHARGED AND SUBSEQUENTLY
DISCHARGES THROUGH THE SPARK-GAP.  IF THE CAPACITY, THE INDUCTANCE, AND
THE RESISTANCE OF THE CIRCUIT ARE OF SUITABLE VALUES, THE DISCHARGE IS
OSCILLATORY, WITH THE RESULT THAT ALTERNATING CURRENTS OF HIGH
FREQUENCY PASS THROUGH THE PRIMARY OF THE TRANSFORMER AND INDUCE
SIMILAR OSCILLATIONS IN THE SECONDARY, THESE OSCILLATIONS BEING RAPIDLY
RADIATED IN THE FORM OF ELECTRIC WAVES BY THE ELEVATED CONDUCTOR
(ANTENNA). 

"FOR THE BEST RESULTS AND IN ORDER TO EFFECT THE SELECTION OF THE
STATION OR STATIONS WHEREAT THE TRANSMITTED OSCILLATIONS ARE TO BE
LOCALIZED I INCLUDE IN THE OPEN SECONDARY CIRCUIT OF THE TRANSFORMER,
AND PREFERABLY BETWEEN THE RADIATOR F AND THE SECONDARY COIL D', AN
INDUCTANCE-COIL G, FIG. 1, HAVING NUMEROUS COILS, AND THE CONNECTION IS
SUCH THAT A GREATER OR LESS NUMBER OF TURNS OF THE COIL CAN BE PUT IN
USE, THE PROPER NUMBER BEING ASCERTAINED BY EXPERIMENT." 

THE INVENTION THUS DESCRIBED MAY SUMMARILY BE STATED TO BE A
STRUCTURE AND ARRANGEMENT OF FOUR HIGH FREQUENCY CIRCUITS, WITH MEANS
OF INDEPENDENTLY ADJUSTING EACH SO THAT ALL FOUR MAY BE BROUGHT INTO
ELECTRICAL RESONANCE WITH ONE ANOTHER.  THIS IS THE BROAD INVENTION
COVERED BY CLAIM 20.  COMBINATIONS COVERING SO MUCH OF THE INVENTION AS
IS EMBODIED IN THE TRANSMITTER AND THE RECEIVER RESPECTIVELY ARE
SEPARATELY CLAIMED.  FN5 

LONG BEFORE MARCONI'S APPLICATION FOR THIS PATENT THE SCIENTIFIC
PRINCIPLES OF WHICH HE MADE USE WERE WELL UNDERSTOOD AND THE PARTICULAR
APPLIANCES CONSTITUTING ELEMENTS IN THE APPARATUS COMBINATION WHICH HE
CLAIMED WERE WELL KNOWN.  ABOUT SEVENTY YEARS AGO CLERK MAXWELL
DESCRIBED THE SCIENTIFIC THEORY OF WIRELESS COMMUNICATION THROUGH THE
TRANSMISSION OF ELECTRICAL ENERGY BY ETHER WAVES.  FN6  BETWEEN 1878
AND 1890 HERTZ DEVISED APPARATUS FOR ACHIEVING THAT RESULT WHICH WAS
DESCRIBED BY DE TUNZELMANN IN A SERIES OF ARTICLES PUBLISHED IN THE
LONDON ELECTRICIAN IN 1888.  ONE, OF SEPTEMBER 21, 1888, SHOWED A
TRANSMITTER COMPRISING A CLOSED CIRCUIT INDUCTIVELY COUPLED WITH AN
OPEN CIRCUIT.  THE CLOSED CIRCUIT INCLUDED A SWITCH OR CIRCUIT BREAKER
CAPABLE OF USE FOR SENDING SIGNALS, AND AN AUTOMATIC CIRCUIT BREAKER
CAPABLE, WHEN THE SWITCH WAS CLOSED, OF SETTING UP AN INTERMITTENT
CURRENT IN THE CLOSED CIRCUIT WHICH IN TURN INDUCED THROUGH A
TRANSFORMER AN INTERMITTENT CURRENT OF HIGHER VOLTAGE IN THE OPEN
CIRCUIT.  THE OPEN CIRCUIT INCLUDED A SPARK GAP ACROSS WHICH A
SUCCESSION OF SPARKS WERE CAUSED TO LEAP WHENEVER THE SIGNAL SWITCH WAS
CLOSED, EACH SPARK PRODUCING A SERIES OF HIGH FREQUENCY OSCILLATIONS IN
THE OPEN CIRCUIT. 

BY CONNECTING THE SPARK GAP TO LARGE AREA PLATES IN THE OPEN CIRCUIT
HERTZ INCREASED THE CAPACITY AND THUS NOT ONLY INCREASED THE FORCE OF
THE SPARKS BUT ALSO CHANGED ONE OF THE TWO FACTORS DETERMINING THE
FREQUENCY OF THE OSCILLATIONS IN THE CIRCUIT, AND HENCE THE WAVE LENGTH
OF THE OSCILLATIONS TRANSMITTED.  HERTZ'S RECEIVER WAS SHOWN AS A
RECTANGLE OF WIRE CONNECTED TO THE KNOBS OF A SPARK GAP, BOTH THE WIRE
AND THE SPARK GAP BEING OF SPECIFIED LENGTHS OF SUCH RELATIONSHIP AS TO
RENDER THE CIRCUIT RESONANT TO THE WAVE LENGTHS IN THE TRANSMITTER.  AT
TIMES HERTZ ATTACHED TO THE RECTANGLE ADDITIONAL VERTICAL WIRES WHICH
PROVIDED ADDITIONAL CAPACITY, AND WHOSE LENGTH COULD READILY BE VARIED
SO AS TO VARY THE WAVE LENGTHS TO WHICH THE RECEIVER WAS RESPONSIVE,
THUS PROVIDING A "METHOD OF ADJUSTING THE CAPACITY" OF THE RECEIVER. 
FN7  THUS HERTZ AT THE OUTSET OF RADIO COMMUNICATION RECOGNIZED THE
IMPORTANCE OF RESONANCE AND PROVIDED MEANS FOR SECURING IT BY TUNING
BOTH HIS TRANSMITTING AND RECEIVING CIRCUITS TO THE SAME FREQUENCY, BY
ADJUSTING THE CAPACITY OF EACH.  FN8    LODGE, WRITING IN THE LONDON
ELECTRICIAN IN 1894, ELABORATED FURTHER ON THE DISCOVERIES OF HERTZ AND
ON HIS OWN EXPERIMENTS ALONG THE SAME LINES.  IN ONE ARTICLE, OF JUNE
8, 1894, HE DISCUSSED PHENOMENA OF RESONANCE AND MADE AN OBSERVATION
WHICH UNDERLIES SEVERAL OF THE DISCLOSURES IN MARCONI'S PATENT.  LODGE
POINTED OUT THAT SOME CIRCUITS WERE BY THEIR NATURE PERSISTENT
VIBRATORS, I.E., WERE ABLE TO SUSTAIN FOR A LONG PERIOD OSCILLATIONS
SET UP IN THEM, WHILE OTHERS WERE SO CONSTRUCTED THAT THEIR
OSCILLATIONS WERE RAPIDLY DAMPED.  HE SAID THAT A RECEIVER SO
CONSTRUCTED AS TO BE RAPIDLY DAMPED WOULD RESPOND TO WAVES OF ALMOST
ANY FREQUENCY, WHILE ONE THAT WAS A PERSISTENT VIBRATOR WOULD RESPOND
ONLY TO WAVES OF ITS OWN NATURAL PERIODICITY.  LODGE POINTED OUT
FURTHER THAT HERTZ'S TRANSMITTER "RADIATES VERY POWERFULLY" BUT THAT
"IN CONSEQUENCE OF ITS RADIATION OF ENERGY, ITS VIBRATIONS ARE RAPIDLY
DAMPED, AND IT ONLY GIVES SOME THREE OR FOUR GOOD STRONG SWINGS.  HENCE
IT FOLLOWS THAT IT HAS A WIDE RANGE OF EXCITATION, I.E., IT CAN EXCITE
SPARKS IN CONDUCTORS BARELY AT ALL IN TUNE WITH IT."  ON THE OTHER HAND
HERTZ'S RECEIVER WAS "NOT A GOOD ABSORBER BUT A PERSISTENT VIBRATOR,
WELL ADAPTED FOR PICKING UP DISTURBANCES OF PRECISE AND MEASURABLE WAVE
LENGTH."  LODGE CONCLUDED THAT "THE TWO CONDITIONS, CONSPICUOUS ENERGY
OF RADIATION AND PERSISTENT VIBRATION ELECTRICALLY PRODUCED, ARE AT
PRESENT INCOMPATIBLE."  (PP. 154-5.) 

IN 1892, CROOKES PUBLISHED AN ARTICLE IN THE FORTNIGHTLY REVIEW IN
WHICH HE DEFINITELY SUGGESTED THE USE OF HERTZIAN WAVES FOR WIRELESS
TELEGRAPHY AND POINTED OUT THAT THE METHOD OF ACHIEVING THAT RESULT WAS
TO BE FOUND IN THE USE AND IMPROVEMENT OF THEN KNOWN MEANS OF
GENERATING ELECTRICAL WAVES OF ANY DESIRED WAVE LENGTH, TO BE
TRANSMITTED THROUGH THE ETHER TO A RECEIVER, BOTH SENDING AND RECEIVING
INSTRUMENTS BEING ATTUNED TO A DEFINITE WAVE LENGTH.  FN9  A YEAR LATER
TESLA, WHO WAS THEN PREOCCUPIED WITH THE WIRELESS TRANSMISSION OF POWER
FOR USE IN LIGHTING OR FOR THE OPERATION OF DYNAMOS, PROPOSED, IN A
LECTURE BEFORE THE FRANKLIN INSTITUTE IN PHILADELPHIA, THE USE OF
ADJUSTABLE HIGH FREQUENCY OSCILLATIONS FOR WIRELESS TRANSMISSION OF
SIGNALS.  FN10 

MARCONI'S ORIGINAL PATENT NO. 586,193, WHICH WAS GRANTED JULY 13,
1897, AND BECAME REISSUE NO. 11,913, DISCLOSED A TWO-CIRCUIT SYSTEM FOR
THE TRANSMISSION AND RECEPTION OF HERTZIAN WAVES.  THE TRANSMITTER
COMPRISED AN ANTENNA CIRCUIT CONNECTED AT ONE END TO AN AERIAL PLATE
AND AT THE OTHER TO THE GROUND, AND CONTAINING A SPARK GAP.  TO THE
KNOBS OF THE SPARK GAP WAS CONNECTED A TRANSFORMER WHOSE SECONDARY WAS
CONNECTED WITH A SOURCE OF CURRENT AND A SIGNALLING KEY.  THE LOW
FREQUENCY CURRENT THEREBY INDUCED IN THE ANTENNA CIRCUIT WAS CAUSED TO
DISCHARGE THROUGH THE SPARK GAP, PRODUCING THE HIGH FREQUENCY
OSCILLATIONS WHICH WERE RADIATED BY THE ANTENNA.  THE RECEIVER
SIMILIARLY CONTAINED AN ANTENNA CIRCUIT BETWEEN AN ELEVATED PLATE AND
THE GROUND, IN WHICH A COHERER WAS DIRECTLY CONNECTED.  MARCONI CLAIMED
THE CONSTRUCTION OF TRANSMITTER AND RECEIVER SO AS TO BE RESONANT TO
THE SAME FREQUENCY, AND DESCRIBED MEANS OF DOING SO BY CAREFUL
DETERMINATION OF THE SIZE OF THE AERIAL PLATES. 

THE TESLA PATENT NO. 645,576, APPLIED FOR SEPTEMBER 2, 1897 AND
ALLOWED MARCH 20, 1900, DISCLOSED A FOUR-CIRCUIT SYSTEM, HAVING TWO
CIRCUITS EACH AT TRANSMITTER AND RECEIVER, AND RECOMMENDED THAT ALL
FOUR CIRCUITS BE TUNED TO THE SAME FREQUENCY.  TESLA'S APPARATUS WAS
DEVISED PRIMARILY FOR THE TRANSMISSION OF ENERGY TO ANY FORM OF ENERGY
CONSUMING DEVICE BY USING THE RARIFIED ATMOSPHERE AT HIGH ELEVATIONS AS
A CONDUCTOR WHEN SUBJECTED TO THE ELECTRICAL PRESSURE OF A VERY HIGH
VOLTAGE.  BUT HE ALSO RECOGNIZED THAT HIS APPARATUS COULD, WITHOUT
CHANGE, BE USED FOR WIRELESS COMMUNICATION, WHICH IS DEPENDENT UPON THE
TRANSMISSION OF ELECTRICAL ENERGY.  HIS SPECIFICATIONS DECLARE:  "THE
APPARATUS WHICH I HAVE SHOWN WILL OBVIOUSLY HAVE MANY OTHER VALUABLE
USES - AS, FOR INSTANCE, WHEN IT IS DESIRED TO TRANSMIT INTELLIGIBLE
MESSAGES TO GREAT DISTANCES ...  "  FN11 

TESLA'S SPECIFICATIONS DISCLOSED AN ARRANGEMENT OF FOUR CIRCUITS, AN
OPEN ANTENNA CIRCUIT COUPLED, THROUGH A TRANSFORMER, TO A CLOSED
CHARGING CIRCUIT AT THE TRANSMITTER, AND AN OPEN ANTENNA CIRCUIT AT THE
RECEIVER SIMILARLY COUPLED TO A CLOSED DETECTOR CIRCUIT.  HIS PATENT
ALSO INSTRUCTED THOSE SKILLED IN THE ART THAT THE OPEN AND CLOSED
CIRCUITS IN THE TRANSMITTING SYSTEM AND IN THE RECEIVING SYSTEM SHOULD
BE IN ELECTRICAL RESONANCE WITH EACH OTHER.  HIS SPECIFICATIONS STATE
THAT THE "PRIMARY AND SECONDARY CIRCUITS IN THE TRANSMITTING APPARATUS"
ARE "CAREFULLY SYNCHRONIZED."  THEY DESCRIBE THE METHOD OF ACHIEVING
THIS BY ADJUSTING THE LENGTH OF WIRE IN THE SECONDARY WINDING OF THE
OSCILLATION TRANSFORMER IN THE TRANSMITTER, AND SIMILARLY IN THE
RECEIVER, SO THAT "THE POINTS OF HIGHEST POTENTIAL ARE MADE TO COINCIDE
WITH THE ELEVATED TERMINALS" OF THE ANTENNA, I.E., SO THAT THE ANTENNA
CIRCUIT WILL BE RESONANT TO THE FREQUENCY DEVELOPED IN THE CHARGING
CIRCUIT OF THE TRANSMITTER.  THE SPECIFICATIONS FURTHER STATE THAT "THE
RESULTS WERE PARTICULARLY SATISFACTORY WHEN THE PRIMARY COIL OR SYSTEM
A' WITH ITS SECONDARY C' (OF THE RECEIVER) WAS CAREFULLY ADJUSTED, SO
AS TO VIBRATE IN SYNCHRONISM WITH THE TRANSMITTING COIL OR SYSTEM AC." 

TESLA THUS ANTICIPATED THE FOLLOWING FEATURES OF THE MARCONI PATENT:
A CHARGING CIRCUIT IN THE TRANSMITTER FOR CAUSING OSCILLATIONS OF THE
DESIRED FREQUENCY, COUPLED, THROUGH A TRANSFORMER, WITH THE OPEN
ANTENNA CIRCUIT, AND THE SYNCHRONIZATION OF THE TWO CIRCUITS BY THE
PROPER DISPOSITION OF THE INDUCTANCE IN EITHER THE CLOSED OR THE
ANTENNA CIRCUIT OR BOTH.  BY THIS AND THE ADDED DISCLOSURE OF THE TWO
CIRCUIT ARRANGEMENT IN THE RECEIVER WITH SIMILAR ADJUSTMENT, HE
ANTICIPATED THE FOUR-CIRCUIT TUNED COMBINATION OF MARCONI.  A FEATURE
OF THE MARCONI COMBINATION NOT SHOWN BY TESLA WAS THE USE OF A VARIABLE
INDUCTANCE AS A MEANS OF ADJUSTING THE TUNING OF THE ANTENNA CIRCUIT OF
TRANSMITTER AND RECEIVER.  THIS WAS DEVELOPED BY LODGE AFTER TESLA'S
PATENT BUT BEFORE THE MARCONI PATENT IN SUIT. 

IN PATENT NO. 609,154, APPLIED FOR FEBRUARY 1, 1898 AND ALLOWED
AUGUST 16, 1898, BEFORE MARCONI'S APPLICATION, LODGE DISCLOSED AN
ADJUSTABLE INDUCTION COIL IN THE OPEN OR ANTENNA CIRCUIT IN A WIRELESS
TRANSMITTER OR RECEIVER OR BOTH TO ENABLE TRANSMITTER AND RECEIVER TO
BE TUNED TOGETHER.  HIS PATENT PROVIDED FOR THE USE, IN THE OPEN
CIRCUITS OF A TRANSMITTER AND A RECEIVER OF HERTZIAN WAVES, OF A SELF
INDUCTION COIL BETWEEN A PAIR OF CAPACITY AREAS WHICH HE STATED MIGHT
BE ANTENNA AND EARTH.  HIS SPECIFICATIONS STATE THAT A COIL LOCATED AS
DESCRIBED COULD BE MADE ADJUSTABLE AT WILL SO AS TO VARY THE VALUE OF
ITS SELF-INDUCTANCE; THAT THE ADJUSTMENT, TO SECURE THE "DESIRED
FREQUENCY OF VIBRATION OR SYNTONY WITH A PARTICULAR DISTANT STATION,"
MAY BE ATTAINED EITHER "BY REPLACING ONE COIL BY ANOTHER" OR BY THE USE
OF A COIL CONSTRUCTED WITH A MOVABLE SWITCH SO RELATED TO THE COIL AS
TO SHORT CIRCUIT, WHEN CLOSED, ANY DESIRED NUMBER OF TURNS OF THE WIRE,
"SO THAT THE WHOLE OR ANY SMALLER PORTION OF THE INDUCTANCE AVAILABLE
MAY BE USED IN ACCORDANCE WITH THE CORRESPONDINGLY-ATTUNED RECEIVER AT
THE PARTICULAR STATION TO WHICH IT IS DESIRED TO SIGNAL."  THUS LODGE
ADJUSTED HIS TUNING BY VARYING THE SELF-INDUCTANCE OF THE ANTENNA
CIRCUITS, FOR, AS HE EXPLAINED, THE ADJUSTMENT OF WAVE LENGTHS, AND
HENCE OF FREQUENCY IN THE CIRCUITS, COULD BE MADE BY VARYING EITHER OR
BOTH THE INDUCTANCE AND CAPACITY, WHICH ARE THE FACTORS CONTROLLING
WAVE LENGTH AND HENCE FREQUENCY IN THE ANTENNA CIRCUITS. 

LODGE THUS BROADLY CLAIMED THE TUNING, BY MEANS OF A VARIABLE
INDUCTANCE, OF THE ANTENNA CIRCUITS IN A SYSTEM OF RADIO
COMMUNICATION.  HIS SPECIFICATIONS DISCLOSE WHAT IS SUBSTANTIALLY A TWO
CIRCUIT SYSTEM, WITH ONE HIGH FREQUENCY CIRCUIT AT THE TRANSMITTER AND
ONE AT THE RECEIVER.  HE ALSO SHOWED A TWO-CIRCUIT RECEIVER WITH A
TUNED ANTENNA CIRCUIT, HIS DETECTOR CIRCUIT AT THE RECEIVER BEING
CONNECTED WITH THE TERMINALS OF A SECONDARY COIL WOUND AROUND THE
VARIABLE INDUCTANCE COIL IN THE ANTENNA CIRCUIT AND THUS INDUCTIVELY
COUPLED THROUGH A TRANSFORMER WITH THE ANTENNA CIRCUIT.  FN12  LODGE
THUS SUPPLIED THE MEANS OF VARYING INDUCTANCE AND HENCE TUNING WHICH
WAS LACKING IN THE TESLA PATENT.  HE ALSO SHOWED A RECEIVER WHICH
COMPLETELY ANTICIPATED THOSE OF THE MARCONI RECEIVER CLAIMS WHICH
PRESCRIBE ADJUSTABLE MEANS OF TUNING ONLY IN THE ANTENNA CIRCUIT
(CLAIMS 2, 13 AND 18) AND PARTIALLY ANTICIPATED THE OTHER RECEIVER
CLAIMS. 

THE STONE PATENT NO. 714,756, APPLIED FOR FEBRUARY 8, 1900, NINE
MONTHS BEFORE MARCONI'S APPLICATION, AND ALLOWED DECEMBER 2, 1902, A
YEAR AND A HALF BEFORE THE GRANT OF MARCONI'S PATENT, SHOWED A FOUR
CIRCUIT WIRELESS TELEGRAPH APPARATUS SUBSTANTIALLY LIKE THAT LATER
SPECIFIED AND PATENTED BY MARCONI.  IT DESCRIBED ADJUSTABLE TUNING, BY
MEANS OF A VARIABLE INDUCTANCE, OF THE CLOSED CIRCUITS OF BOTH
TRANSMITTER AND RECEIVER.  IT ALSO RECOMMENDED THAT THE TWO ANTENNA
CIRCUITS BE SO CONSTRUCTED AS TO BE RESONANT TO THE SAME FREQUENCIES AS
THE CLOSED CIRCUITS.  THIS RECOMMENDATION WAS ADDED BY AMENDMENT TO THE
SPECIFICATIONS MADE AFTER MARCONI HAD FILED HIS APPLICATION, AND THE
PRINCIPAL QUESTION IS WHETHER THE AMENDMENTS WERE IN POINT OF SUBSTANCE
A DEPARTURE FROM STONE'S INVENTION AS DISCLOSED BY HIS APPLICATION. 

STONE'S APPLICATION SHOWS AN INTIMATE UNDERSTANDING OF THE
MATHEMATICAL AND PHYSICAL PRINCIPLES UNDERLYING RADIO COMMUNICATION AND
ELECTRICAL CIRCUITS IN GENERAL.  IT CONTAINS A CRITICAL ANALYSIS OF THE
STATE OF THE ART OF RADIO TRANSMISSION AND RECEPTION.  HE SAID THAT AS
YET IT HAD NOT BEEN FOUND POSSIBLE SO TO TUNE STATIONS USING A VERTICAL
ANTENNA AS TO MAKE POSSIBLE SELECTIVE RECEPTION BY A PARTICULAR STATION
TO THE EXCLUSION OF OTHERS.  HIS EFFORT, ACCORDINGLY, WAS TO TRANSMIT A
"SIMPLE HARMONIC WAVE" OF WELL DEFINED PERIODICITY TO A RECEIVER WHICH
WOULD BE SELECTIVELY RESPONSIVE TO THE PARTICULAR FREQUENCY
TRANSMITTED, AND THEREBY TO ACHIEVE GREATER PRECISION OF TUNING AND A
HIGHER DEGREE OF SELECTIVITY. 

STONE DISCUSSES IN SOME DETAIL THE DIFFERENCE BETWEEN "NATURAL" AND
"FORCED" OSCILLATIONS.  HE SAYS "IF THE ELECTRICAL EQUILIBRIUM OF A
CONDUCTOR BE ABRUPTLY DISTURBED AND THE CONDUCTOR THEREAFTER BE LEFT TO
ITSELF, ELECTRIC CURRENTS WILL FLOW IN THE CONDUCTOR, WHICH TEND TO
ULTIMATELY RESTORE THE CONDITION OF ELECTRICAL EQUILIBRIUM."  HE POINTS
OUT THAT A CLOSED CIRCUIT CONTAINING A CONDENSER AND A COIL IS "CAPABLE
OF OSCILLATORY RESTORATION OF EQUILIBRIUM UPON THE SUDDEN DISCHARGE OF
THE CONDENSER" AND THAT "THE ELECTRICAL OSCILLATIONS WHICH IT SUPPORTS
WHEN ITS EQUILIBRIUM IS ABRUPTLY DISTURBED AND IT IS THEN LEFT TO
ITSELF ARE KNOWN AS THE NATURAL VIBRATIONS OR OSCILLATIONS OF THE
SYSTEM." 

IN ADDITION TO ITS ABILITY TO ORIGINATE "NATURAL VIBRATIONS" WHEN ITS
ELECTRICAL EQUILIBRIUM IS DISTURBED, STONE SAYS THAT AN ELECTRICAL
CIRCUIT IS ALSO "CAPABLE OF SUPPORTING WHAT ARE TERMED FORCED
VIBRATIONS" WHEN ELECTRICAL OSCILLATIONS ELSEWHERE CREATED ARE
IMPRESSED UPON IT.  IN CONTRAST TO THE "NATURAL" VIBRATIONS OF A
CIRCUIT, WHOSE FREQUENCY DEPENDS UPON "THE RELATION BETWEEN THE
ELECTROMAGNETIC CONSTANTS (CAPACITY AND SELF-INDUCTANCE) OF THE
CIRCUIT," THE FREQUENCY OF THE "FORCED" VIBRATIONS IS "INDEPENDENT OF
THE CONSTANTS OF THE CIRCUIT" ON WHICH THEY ARE IMPRESSED AND "DEPENDS
ONLY UPON THE PERIOD (FREQUENCY) OF THE IMPRESSED FORCE."  IN OTHER
WORDS, STONE FOUND THAT IT WAS POSSIBLE NOT ONLY TO ORIGINATE HIGH
FREQUENCY OSCILLATIONS IN A CIRCUIT, AND TO DETERMINE THEIR FREQUENCY
BY PROPER DISTRIBUTION OF CAPACITY AND SELF-INDUCTANCE IN THE CIRCUIT,
BUT ALSO TO TRANSFER THOSE OSCILLATIONS TO ANOTHER CIRCUIT AND RETAIN
THEIR ORIGINAL FREQUENCY. 

STONE POINTS OUT THAT IN THE EXISTING SYSTEMS OF RADIO TRANSMISSION
THE ELECTRIC OSCILLATIONS ARE "NATURALLY" DEVELOPED IN THE ANTENNA
CIRCUIT BY THE SUDDEN DISCHARGE OF ACCUMULATED ELECTRICAL FORCE THROUGH
A SPARK GAP IN THAT CIRCUIT.  SUCH OSCILLATIONS ARE "NECESSARILY OF A
COMPLEX CHARACTER AND CONSIST OF A GREAT VARIETY OF SUPERIMPOSED SIMPLE
HARMONIC VIBRATIONS OF DIFFERENT FREQUENCIES."  "SIMILARLY THE VERTICAL
CONDUCTOR AT THE RECEIVING STATION IS CAPABLE OF RECEIVING AND
RESPONDING TO VIBRATIONS OF A GREAT VARIETY OF FREQUENCIES SO THAT THE
ELECTRO-MAGNETIC WAVES WHICH EMANATE FROM ONE VERTICAL CONDUCTOR USED
AS A TRANSMITTER ARE CAPABLE OF EXCITING VIBRATIONS IN ANY OTHER
VERTICAL WIRE AS A RECEIVER  ...  AND THE MESSAGES FROM THE
TRANSMITTING STATION WILL NOT BE SELECTIVELY RECEIVED BY THE PARTICULAR
RECEIVING STATION WITH WHICH IT IS DESIROUS TO COMMUNICATE, AND WILL
INTERFERE WITH THE OPERATION OF OTHER RECEIVING STATIONS WITHIN ITS
SPHERE OF INFLUENCE." 

IN CONTRAST TO THE TWO-CIRCUIT SYSTEM WHOSE INADEQUACIES HE HAD THUS
DESCRIBED, STONE'S DRAWINGS AND SPECIFICATIONS DISCLOSE A FOUR-CIRCUIT
SYSTEM FOR TRANSMITTING AND RECEIVING RADIO WAVES WHICH WAS VERY
SIMILAR TO THAT LATER DISCLOSED BY MARCONI.  THE TRANSMITTER INCLUDED A
SOURCE OF LOW FREQUENCY OSCILLATING CURRENT AND A TELEGRAPH OR
SIGNALLING KEY CONNECTED IN A CIRCUIT WHICH WAS INDUCTIVELY COUPLED
WITH ANOTHER CLOSED CIRCUIT.  THIS INCLUDED AN INDUCTION COIL, A
CONDENSER, AND A SPARK GAP CAPABLE OF GENERATING HIGH FREQUENCY
OSCILLATIONS.  IT IN TURN WAS INDUCTIVELY COUPLED THROUGH A TRANSFORMER
WITH AN OPEN ANTENNA CIRCUIT CONNECTED TO AN AERIAL CAPACITY AT ONE END
AND THE EARTH AT THE OTHER.  THE RECEIVER INCLUDED A SIMILAR ANTENNA
CIRCUIT, INDUCTIVELY COUPLED WITH A CLOSED OSCILLATING CIRCUIT
CONTAINING AN INDUCTION COIL, A CONDENSER, AND A COHERER OR OTHER
DETECTOR OF RADIO WAVES.    STONE THUS RECOGNIZED, ALTHOUGH HE USED
DIFFERENT TERMINOLOGY, THE FACT, PREVIOUSLY OBSERVED BY LODGE, THAT AN
OPEN ANTENNA CIRCUIT, SO CONSTRUCTED AS TO BE AN EFFICIENT RADIATOR,
WAS NOT AN OSCILLATOR CAPABLE OF PRODUCING NATURAL WAVES OF A SINGLE
WELL-DEFINED PERIODICITY, AND CONSEQUENTLY HAD A WIDE RANGE OF
EXCITATION.  HE ADOPTED THE SAME REMEDY FOR THIS DEFECT AS MARCONI
LATER DID, NAMELY TO PRODUCE THE OSCILLATIONS IN A CLOSED CIRCUIT
CAPABLE OF GENERATING PERSISTENT VIBRATIONS OF WELL-DEFINED
PERIODICITY, AND THEN INDUCE THOSE OSCILLATIONS IN AN OPEN ANTENNA
CIRCUIT CAPABLE OF RADIATING THEM EFFICIENTLY TO A DISTANT RESONANT
RECEIVER.  HE STATES THAT THE VIBRATIONS IN HIS CLOSED CIRCUIT "BEGIN
WITH A MAXIMUM OF AMPLITUDE AND GRADUALLY DIE AWAY," A GOOD DESCRIPTION
OF THE RESULTS OBTAINABLE BY A "PERSISTENT OSCILLATOR."  FN13
SIMILARLY IN HIS RECEIVER STONE RECOGNIZED THAT AN OPEN ANTENNA CIRCUIT
(LODGE'S "GOOD ABSORBER") WAS NOT A HIGHLY SENSITIVE RESPONDER TO WAVES
OF A PARTICULAR FREQUENCY, AND ACCORDINGLY HE SOUGHT TO AUGMENT THE
SELECTIVITY OF TUNING AT THE RECEIVER BY INTERPOSING BETWEEN THE
ANTENNA CIRCUIT AND THE RESPONDING DEVICE A CLOSED CIRCUIT WHICH WOULD
BE A MORE PERSISTENT VIBRATOR AND HENCE RENDER THE RECEIVING APPARATUS
MORE SELECTIVELY RESPONSIVE TO WAVES OF A PARTICULAR FREQUENCY.  IN SO
DOING, HOWEVER, AS WILL PRESENTLY APPEAR, HE DID NOT DISREGARD THE
FAVORABLE EFFECT ON SELECTIVITY OF TUNING AFFORDED BY MAKING THE
ANTENNA CIRCUITS RESONANT TO THE TRANSMITTED FREQUENCY. 

STONE'S APPLICATION RECOMMENDS THAT THE INDUCTANCE COILS IN THE
CLOSED CIRCUITS AT TRANSMITTER AND RECEIVER "BE MADE ADJUSTABLE AND
SERVE AS A MEANS WHEREBY THE OPERATORS MAY ADJUST THE APPARATUS TO THE
PARTICULAR FREQUENCY WHICH IT IS INTENDED TO EMPLOY."  HE THUS
DISCLOSED A MEANS OF ADJUSTING THE TUNING OF THE CLOSED CIRCUITS BY
VARIABLE INDUCTANCE.  HIS ORIGINAL APPLICATION NOWHERE STATES IN SO
MANY WORDS THAT THE ANTENNA CIRCUITS SHOULD BE TUNED, NOR DO ITS
SPECIFICATIONS OR DRAWINGS EXPLICITLY DISCLOSE ANY MEANS FOR ADJUSTING
THE TUNING OF THOSE CIRCUITS.  BUT THERE IS NOTHING IN THEM TO SUGGEST
THAT STONE DID NOT INTEND TO HAVE THE ANTENNA CIRCUITS TUNED, AND WE
THINK THAT THE PRINCIPLES WHICH HE RECOGNIZED IN HIS APPLICATION, THE
PURPOSE WHICH HE SOUGHT TO ACHIEVE, AND CERTAIN PASSAGES IN HIS
SPECIFICATIONS, SHOW THAT HE RECOGNIZED, AS THEY PLAINLY SUGGEST TO
THOSE SKILLED IN THE ART, THE DESIRABILITY OF TUNING THE ANTENNA
CIRCUITS AS WELL.  THE DISCLOSURES OF HIS APPLICATION WERE THUS AN
ADEQUATE BASIS FOR THE SPECIFIC RECOMMENDATION, LATER ADDED BY
AMENDMENT, AS TO THE DESIRABILITY OF CONSTRUCTING THE ANTENNA CIRCUITS
SO AS TO BE RESONANT TO THE FREQUENCY PRODUCED IN THE CHARGING CIRCUIT
OF THE TRANSMITTER. 

THE MAJOR PURPOSE OF STONE'S SYSTEM WAS THE ACHIEVEMENT OF GREATER
SELECTIVITY OF TUNING.  HIS OBJECTIVE WAS TO TRANSMIT WAVES "OF BUT A
SINGLE FREQUENCY" AND TO RECEIVE THEM AT A STATION WHICH "SHALL BE
OPERATED ONLY BY ELECTRIC WAVES OF A SINGLE FREQUENCY AND NO OTHERS." 
HE STATES: 

"BY MY INVENTION THE VERTICAL CONDUCTOR OF THE TRANSMITTING STATION
IS MADE THE SOURCE OF ELECTRO-MAGNETIC WAVES OF BUT A SINGLE
PERIODICITY, AND THE TRANSLATING APPARATUS AT THE RECEIVING STATION IS
CAUSED TO BE SELECTIVELY RESPONSIVE TO WAVES OF BUT A SINGLE
PERIODICITY SO THAT THE TRANSMITTING APPARATUS CORRESPONDS TO A TUNING
FORK SENDING BUT A SINGLE SIMPLE MUSICAL TONE, AND THE RECEIVING
APPARATUS CORRESPONDS TO AN ACOUSTIC RESONATOR CAPABLE OF ABSORBING THE
ENERGY OF THAT SINGLE, SIMPLE MUSICAL TONE ONLY." 

HE SAYS THAT "WHEN THE APPARATUS AT A PARTICULAR (RECEIVING) STATION"
IS PROPERLY TUNED TO A PARTICULAR TRANSMITTING STATION THE RECEIVER
WILL SELECTIVELY RECEIVE MESSAGES FROM IT.  HE ADDS: 

"MOREOVER, BY MY INVENTION THE OPERATOR AT THE TRANSMITTING OR
RECEIVING STATION MAY AT WILL ADJUST THE APPARATUS AT HIS COMMAND IN
SUCH A WAY AS TO PLACE HIMSELF IN COMMUNICATION WITH ANY ONE OF A
NUMBER OF STATIONS  ...  BY BRINGING HIS APPARATUS INTO RESONANCE WITH
THE PERIODICITY EMPLOYED." 

AND WITH RESPECT TO THE TRANSMITTER HE SAYS, "IT IS TO BE UNDERSTOOD
THAT ANY SUITABLE DEVICE MAY BE EMPLOYED TO DEVELOP THE SIMPLE HARMONIC
FORCE IMPRESSED UPON THE VERTICAL WIRE (ANTENNA).  IT IS SUFFICIENT TO
DEVELOP IN THE VERTICAL WIRE PRACTICALLY SIMPLE HARMONIC VIBRATIONS OF
A FIXED AND HIGH FREQUENCY." 

THESE STATEMENTS SUFFICIENTLY INDICATE STONE'S BROAD PURPOSE OF
PROVIDING A HIGH DEGREE OF TUNING AT SENDING AND RECEIVING STATIONS. 
IN SEEKING TO ACHIEVE THAT END HE NOT UNNATURALLY PLACED EMPHASIS ON
THE TUNING OF THE CLOSED CIRCUITS, THE ASSOCIATION OF WHICH WITH THE
ANTENNA CIRCUITS WAS AN IMPORTANT IMPROVEMENT WHICH HE WAS THE FIRST TO
MAKE.  BUT HE ALSO MADE IT PLAIN THAT IT WAS THE SENDING AND RECEIVING
"APPARATUS" WHICH HE WISHED TO TUNE, SO THAT THE SENDING "APPARATUS"
"WOULD CORRESPOND TO A TUNING FORK" AND THE RECEIVING "APPARATUS" TO
"AN ACOUSTIC RESONATOR" CAPABLE OF ABSORBING THE ENERGY OF THE "SINGLE,
SIMPLE MUSICAL TONE" TRANSMITTED.  AND THIS HE SOUGHT TO ACHIEVE BY
"ANY SUITABLE DEVICE." 

STONE THUS EMPHASIZED THE DESIRABILITY OF MAKING THE ENTIRE
TRANSMITTING AND RECEIVING "APPARATUS" RESONANT TO A PARTICULAR
FREQUENCY.  AS NONE OF THE CIRCUITS ARE RESONANT TO A DESIRED FREQUENCY
UNLESS THEY ARE TUNED TO THAT FREQUENCY, THIS REFERENCE TO THE
TRANSMITTING AND RECEIVING APPARATUS AS BEING BROUGHT INTO RESONANCE
WITH EACH OTHER CANNOT FAIRLY BE SAID TO MEAN THAT ONLY SOME OF THE
CIRCUITS AT THE TRANSMITTER AND RECEIVER WERE TO BE TUNED.  TO SAY THAT
BY THIS REFERENCE TO THE TUNING OF SENDING AND RECEIVING APPARATUS HE
MEANT TO CONFINE HIS INVENTION TO THE TUNING OF SOME ONLY OF THE
CIRCUITS IN THAT APPARATUS IS TO READ INTO HIS SPECIFICATIONS A
RESTRICTION WHICH IS PLAINLY NOT THERE AND WHICH CONTRADICTS EVERYTHING
THEY SAY ABOUT THE DESIRABILITY OF RESONANCE OF THE APPARATUS.  IT IS
TO READ THE SPECIFICATIONS, WHICH TAKEN IN THEIR ENTIRETY ARE MERELY
DESCRIPTIVE OR ILLUSTRATIVE OF HIS INVENTION, COMPARE CONTINENTAL PAPER
BAG CO. V. EASTERN PAPER BAG CO., 210 U.S. 405, 418, 419-20, AS THOUGH
THEY WERE CLAIMS WHOSE FUNCTION IS TO EXCLUDE FROM THE PATENT ALL THAT
IS NOT SPECIFICALLY CLAIMED.  MAHN V. HARWOOD, 112 U.S. 354, 361;
MCCLAIN V. ORTMAYER, 141 U.S. 419, 423-5; MILCOR STEEL CO. V. FULLER
CO., 316 U.S. 143, 146. 

STONE HAD POINTED OUT THAT THE TUNING OF THE ANTENNA CIRCUITS SHOWN
IN THE PRIOR ART DID NOT OF ITSELF AFFORD SUFFICIENT SELECTIVITY.  IT
WAS FOR THAT REASON THAT HE USED THE TUNED CLOSED CIRCUIT IN
ASSOCIATION WITH THE ANTENNA CIRCUIT.  BUT IN THE FACE OF HIS EMPHASIS
ON THE DESIRABILITY OF TUNING THE TRANSMITTING AND RECEIVING APPARATUS,
WE CANNOT IMPUTE TO HIM AN INTENTION TO EXCLUDE FROM HIS APPARATUS THE
WELL KNOWN USE OF TUNING IN THE ANTENNA CIRCUITS AS AN AID TO THE
SELECTIVITY WHICH IT WAS HIS PURPOSE TO ACHIEVE.  THE INFERENCE TO BE
DRAWN IS RATHER THAT HE INTENDED THE TUNED CLOSED CIRCUITS WHICH HE
PROPOSED TO ADD TO THE THEN KNOWN SYSTEMS OF RADIO COMMUNICATION, TO BE
USED IN ASSOCIATION WITH ANY EXISTING TYPE OF VERTICAL WIRE ANTENNA
CIRCUIT, INCLUDING ONE SO CONSTRUCTED AS TO BE EITHER RESONANT TO A
PARTICULAR FREQUENCY, OR ADJUSTABLY RESONANT TO ANY DESIRED FREQUENCY,
BOTH OF WHICH INVOLVED TUNING. 

STONE'S FULL APPRECIATION OF THE VALUE OF MAKING ALL OF HIS CIRCUITS
RESONANT TO THE SAME FREQUENCY IS SHOWN BY HIS SUGGESTION TO INSERT,
BETWEEN THE CLOSED AND ANTENNA CIRCUITS AT THE TRANSMITTER AND
RECEIVER, ONE OR MORE ADDITIONAL CLOSED CIRCUITS, SO CONSTRUCTED AS TO
BE HIGHLY RESONANT TO THE PARTICULAR FREQUENCY EMPLOYED.  HE SAYS THAT
THE PURPOSE OF SUCH AN INTERMEDIATE CIRCUIT IS "TO WEED OUT AND THEREBY
SCREEN" THE ANTENNA CIRCUIT AT THE TRANSMITTER AND THE DETECTING DEVICE
AT THE RECEIVER FROM ANY HARMONICS OR OTHER IMPURITIES IN THE WAVE
STRUCTURE. 

HE STATES:  "THIS SCREENING ACTION OF AN INTERPOSED RESONANT CIRCUIT
IS DUE TO THE WELL KNOWN PROPERTY OF SUCH CIRCUITS BY WHICH A RESONANT
CIRCUIT FAVORS THE DEVELOPMENT IN IT OF SIMPLE HARMONIC CURRENTS OF THE
PERIOD TO WHICH IT IS ATTUNED AND STRONGLY OPPOSES THE DEVELOPMENT IN
IT OF SIMPLE HARMONIC CURRENTS OF OTHER PERIODICITIES."  HIS ORIGINAL
APPLICATION THUS DISCLOSED THE ADVANTAGE, WHERE VIBRATIONS CREATED IN
ONE CIRCUIT ARE TO BE IMPRESSED ON ANOTHER, OF MAKING THE LATTER
CIRCUIT RESONANT TO THE SAME FREQUENCY AS THE FORMER, IN VIEW OF THE
"WELL KNOWN PROPERTY" OF A RESONANT CIRCUIT TO FAVOR THE "DEVELOPMENT"
IN IT OF FORCED VIBRATIONS OF THE SAME FREQUENCY AS ITS NATURAL
PERIODICITY. 

STONE'S APPLICATION SHOWS THAT THESE PRINCIPLES OF RESONANT CIRCUITS
WERE NO LESS APPLICABLE TO THE ANTENNA CIRCUIT, AND SUGGESTS THE USE OF
"ANY SUITABLE DEVICE" TO "DEVELOP" IN THE ANTENNA CIRCUIT THE "SIMPLE
HARMONIC FORCE IMPRESSED" UPON IT.  IT WAS THEN WELL KNOWN IN THE ART
THAT EVERY ELECTRICAL CIRCUIT IS TO SOME DEGREE RESONANT TO A
PARTICULAR FREQUENCY TO WHICH IT RESPONDS MORE READILY AND POWERFULLY
THAN TO OTHERS.  ALTHOUGH THE DEGREE OF RESONANCE ATTAINED BY A
VERTICAL WIRE IS SMALL, ITS NATURAL RESONANCE IS NO DIFFERENT IN KIND
FROM THAT OF A CLOSED CIRCUIT SUCH AS STONE'S SCREENING CIRCUIT.  STONE
RECOGNIZED THIS IN HIS APPLICATION.  IN DESCRIBING THE COMPLEX NATURAL
VIBRATIONS SET UP BY A SUDDEN DISCHARGE IN AN ANTENNA CIRCUIT, SUCH AS
THAT COMMONLY USED AT THE TIME OF HIS APPLICATION, STONE SAID THAT "THE
VIBRATIONS CONSIST OF A SIMPLE HARMONIC VIBRATION OF LOWER PERIOD THAN
ALL THE OTHERS, KNOWN AS THE FUNDAMENTAL WITH A GREAT VARIETY OF
SUPERIMPOSED SIMPLE HARMONICS OF HIGHER PERIODICITY SUPERIMPOSED
THEREON."  AND HE SAYS THAT THE OSCILLATIONS DEVELOPED IN THE CHARGING
CIRCUIT OF HIS SYSTEM "INDUCE CORRESPONDING OSCILLATIONS IN THE
VERTICAL WIRE," WHICH ARE "VIRTUALLY" FORCED VIBRATIONS, AND
"PRACTICALLY INDEPENDENT, AS REGARDS THEIR FREQUENCY, OF THE CONSTANTS
OF THE SECOND CIRCUIT IN WHICH THEY ARE INDUCED" - A PLAIN RECOGNITION
THAT THE ANTENNA CIRCUIT HAS ELECTRO-MAGNETIC CONSTANTS WHICH AFFECT
ITS NATURAL PERIODICITY, AND THAT THAT NATURAL PERIODICITY DOES HAVE
SOME EFFECT ON THE FREQUENCY OF THE VIBRATIONS IMPRESSED UPON THE
ANTENNA CIRCUIT.  FN14 

THUS STONE DID NOT, AS THE MARCONI COMPANY SUGGESTS, SAY THAT THE
ANTENNA CIRCUIT HAD NO NATURAL PERIODICITY.  HE RECOGNIZED THAT ITS
NATURAL PERIODICITY WAS LESS STRONGLY MARKED THAN THAT OF HIS CLOSED
CIRCUIT, AND HENCE THAT THE WAVE STRUCTURE COULD BE GREATLY IMPROVED BY
CREATING THE OSCILLATIONS IN A CLOSED CIRCUIT SUCH AS HE DESCRIBED. 
BUT HE ALSO PLAINLY RECOGNIZED THAT THE ANTENNA CIRCUIT, LIKE HIS
SCREENING CIRCUIT, WAS A CIRCUIT HAVING A NATURAL PERIOD OF VIBRATION
WHICH WOULD THEREFORE BE MORE RESPONSIVE TO IMPRESSED OSCILLATIONS OF
THAT SAME PERIODICITY.  SINCE HE HAD PREVIOUSLY SAID THAT "ANY SUITABLE
DEVICE MAY BE EMPLOYED TO DEVELOP THE SIMPLE HARMONIC FORCE IMPRESSED
UPON THE VERTICAL WIRE," WE THINK THAT STONE'S SPECIFICATIONS PLAINLY
SUGGESTED TO THOSE SKILLED IN THE ART THAT THEY AVAIL THEMSELVES OF
THIS MEANS OF DEVELOPING IN THE ANTENNA THIS SIMPLE HARMONIC FORCE, AND
THAT THEY TUNE THE ANTENNA CIRCUIT IN ORDER TO IMPROVE THE STRENGTH AND
QUALITY OF THE "FORCED" VIBRATIONS IMPRESSED UPON IT. 

THE MARCONI COMPANY ARGUES THAT STONE'S THEORY OF "FORCED"
OSCILLATIONS PRESUPPOSES THAT THE OPEN TRANSMITTER CIRCUIT BE UNTUNED. 
IT IS TRUE THAT STONE SAID THAT SUCH "FORCED" OSCILLATIONS HAVE A
PERIOD OF VIBRATION WHICH IS "INDEPENDENT OF THE ELECTRICAL CONSTANTS
OF THE CIRCUIT" ON WHICH THEY ARE IMPRESSED.  BUT THE FACT THAT THE
"FORCED" VIBRATION WILL RETAIN ITS NATURAL PERIOD WHATEVER THE
FREQUENCY OF THE ANTENNA CIRCUIT MAY BE, DOES NOT PRECLUDE, AS STONE
SHOWED, THE TUNING OF THAT CIRCUIT SO AS TO ACHIEVE MAXIMUM
RESPONSIVENESS TO THE VIBRATIONS IMPRESSED UPON IT.  STONE'S
SPECIFICATIONS INDICATE THAT HE USED THE TERM "FORCED" MERELY AS
MEANING THAT THE VIBRATIONS ARE DEVELOPED IN ANOTHER CIRCUIT AND THEN
TRANSFERRED TO THE ANTENNA CIRCUIT BY INDUCTIVE COUPLING, AS
DISTINGUISHED FROM "NATURAL" VIBRATIONS WHICH ORIGINATE IN THE ANTENNA
OR RADIATING CIRCUIT - IN SHORT THAT "FORCED" IS MERELY USED AS A
SYNONYM FOR "INDUCED."  THUS HE STATES IN DESCRIBING THE OPERATION OF
HIS TRANSMITTER, "THE HIGH FREQUENCY CURRENT  ...  PASSING THROUGH THE
PRIMARY I1(OF THE ANTENNA TRANSFORMER) INDUCES A CORRESPONDING HIGH
FREQUENCY ELECTROMOTIVE FORCE AND CURRENT IN THE SECONDARY I2 AND
FORCED ELECTRIC VIBRATIONS RESULT IN THE VERTICAL CONDUCTOR V  ...  "
FN15 

HENCE THERE IS AMPLE SUPPORT FOR THE FINDING OF THE COURT BELOW THAT 

"BY FREE OSCILLATIONS IS MEANT THAT THEIR FREQUENCY WAS DETERMINED BY
THE CONSTANTS OF THE CIRCUIT IN WHICH THEY WERE GENERATED.  THE STONE
APPLICATION AS FILED IMPRESSED THESE OSCILLATIONS UPON THE OPEN
CIRCUIT, AND THEREFORE USED 'FORCED' OSCILLATIONS IN THE OPEN CIRCUIT
OF THE TRANSMITTER, THAT IS, THE FREQUENCY OF THE OSCILLATIONS IN THE
OPEN CIRCUIT WAS DETERMINED BY THE FREQUENCY OF THE OSCILLATIONS IN THE
CLOSED CIRCUIT. 

"THE EFFECT OF FORCING VIBRATIONS UPON A TUNED AND UNTUNED CIRCUIT
MAY BE LIKENED UNTO THE EFFECT OF A TUNING FORK UPON A STRETCHED CORD
IN A VISCOUS MEDIUM.  WHEN THE CORD IS VIBRATED BY THE TUNING FORK IT
HAS THE SAME PERIOD AS DOES THE FORK REGARDLESS OF WHETHER SUCH PERIOD
BE THAT OF THE NATURAL PERIOD OF THE CORD, BUT WHEN THE FORK VIBRATIONS
ARE IN TUNE WITH THE NATURAL PERIOD OR FUNDAMENTAL OF THE CORD, THEN
THE AMPLITUDE OF VIBRATIONS IN THE CORD IS A MAXIMUM." 

THUS STONE'S APPLICATION, PRIOR TO MARCONI, SHOWED A FOUR-CIRCUIT
SYSTEM, IN WHICH THE OSCILLATIONS WERE PRODUCED IN A CLOSED CHARGING
CIRCUIT AND IMPRESSED ON AN OPEN ANTENNA CIRCUIT IN THE TRANSMITTER,
AND WERE SIMILARLY RECEIVED IN AN OPEN ANTENNA CIRCUIT AND BY IT
INDUCED IN A CLOSED CIRCUIT CONTAINING A DETECTOR.  HE SHOWED THE
EFFECT OF RESONANCE ON THE CIRCUITS RESULTING FROM THEIR TUNING TO A
DESIRED FREQUENCY, AND EMPHASIZED THE IMPORTANCE OF MAKING THE
TRANSMITTING AND RECEIVING APPARATUS RESONANT TO THAT FREQUENCY. 
STONE'S PATENT,  FN16  GRANTED A YEAR AND A HALF BEFORE MARCONI -
ALTHOUGH AFTER MARCONI'S APPLICATION WAS FILED - MAKES EXPLICIT, AS THE
PATENT LAW PERMITS, WHAT WAS IMPLICIT IN STONE'S APPLICATION.  BY
AMENDMENTS TO HIS SPECIFICATIONS MADE APRIL 8, 1902, HE RECOMMENDED
THAT THE FREQUENCY IMPRESSED UPON THE VERTICAL CONDUCTOR AT THE
TRANSMITTER "MAY OR MAY NOT BE THE SAME AS THE NATURAL PERIOD OR
FUNDAMENTAL OF SUCH CONDUCTOR" AND THAT THE ANTENNA CIRCUIT AT THE
TRANSMITTER "MAY WITH ADVANTAGE BE SO CONSTRUCTED AS TO BE HIGHLY
RESONANT TO A PARTICULAR FREQUENCY AND THE HARMONIC VIBRATIONS
IMPRESSED THEREON MAY WITH ADVANTAGE BE OF THAT FREQUENCY."  SINCE
STONE USED A VARIABLE INDUCTANCE TO ALTER AT WILL THE FREQUENCY OF THE
CHARGING CIRCUIT, THIS DIRECTION PLAINLY INDICATED THAT THE FREQUENCY
OF THE ANTENNA CIRCUIT MIGHT ALSO BE VARIABLE, AND SUGGESTED THE
INCLUSION OF THE WELL-KNOWN LODGE VARIABLE INDUCTANCE IN THE
CONSTRUCTION OF THE ANTENNA CIRCUIT TO ACHIEVE THAT RESULT.  AND SINCE
STONE HAD SPECIFIED THAT "BY MY INVENTION" THE OPERATOR AT THE
RECEIVING STATION IS ABLE TO "ADJUST" THE RECEIVING APPARATUS SO AS TO
PLACE IT IN RESONANCE WITH ANY PARTICULAR TRANSMITTING STATION, HIS
PATENT EQUALLY PLAINLY SUGGESTED THE USE OF THE LODGE VARIABLE
INDUCTANCE AS A MEANS OF ADJUSTING THE TUNING OF THE RECEIVING
ANTENNA. 

STONE'S 1902 AMENDMENTS ALSO SUGGESTED THAT AN "ELEVATED CONDUCTOR
THAT IS APERIODIC MAY BE EMPLOYED" - I.E., ONE HAVING VERY WEAK NATURAL
PERIODICITY AND CONSEQUENTLY "ADAPTED TO RECEIVE OR TRANSMIT ALL
FREQUENCIES."  BUT THIS SUGGESTION WAS ACCOMPANIED BY THE ALTERNATIVE
RECOMMENDATION IN THE 1902 AMENDMENTS THAT THE ANTENNA CIRCUITS AT
TRANSMITTER AND RECEIVER "MAY WITH ADVANTAGE BE MADE RESONANT TO A
PARTICULAR FREQUENCY," I.E., BE PERIODIC.  NO INFERENCE CAN BE DRAWN
FROM THIS THAT ONLY AN APERIODIC ANTENNA WAS CONTEMPLATED EITHER BY THE
APPLICATION OR THE AMENDMENTS.  THE APPLICATION WAS SUFFICIENTLY BROAD
TO COVER BOTH TYPES, SINCE BOTH WERE SUITABLE MEANS OF ACHIEVING UNDER
DIFFERENT CONDITIONS THE RESULTS WHICH THE APPLICATION DESCRIBED AND
SOUGHT TO ATTAIN.  THE AMENDMENTS THUS MERELY CLARIFIED AND EXPLAINED
IN FULLER DETAIL TWO ALTERNATIVE MEANS WHICH COULD BE EMPLOYED IN THE
INVENTION DESCRIBED IN THE ORIGINAL APPLICATION, ONE OF THOSE MEANS
BEING THE CONSTRUCTION OF THE ANTENNA SO AS TO BE HIGHLY RESONANT,
I.E., TUNED, TO A PARTICULAR FREQUENCY.  FN17 

THE ONLY RESPECTS IN WHICH IT IS SERIOUSLY CONTENDED THAT MARCONI
DISCLOSED INVENTION OVER STONE ARE THAT MARCONI EXPLICITLY CLAIMED FOUR
CIRCUIT TUNING BEFORE STONE HAD MADE IT EXPLICIT BY HIS 1902 AMENDMENT,
AND THAT MARCONI DISCLOSED MEANS OF ADJUSTING THE TUNING OF EACH OF HIS
FOUR CIRCUITS WHEREAS STONE HAD EXPLICITLY SHOWN ADJUSTABLE TUNING ONLY
IN THE TWO CLOSED CIRCUITS.  BUT WE THINK THAT NEITHER MARCONI'S TUNING
OF THE TWO ANTENNA CIRCUITS NOR HIS USE OF THE LODGE VARIABLE
INDUCTANCE TO THAT END INVOLVED ANY INVENTION OVER STONE.  TWO
QUESTIONS ARE INVOLVED, FIRST, WHETHER THERE WAS ANY INVENTION OVER
STONE IN TUNING THE ANTENNA CIRCUITS, AND, SECOND, WHETHER THERE WAS
ANY INVENTION IN THE USE OF THE LODGE VARIABLE INDUCTANCE OR ANY OTHER
KNOWN MEANS OF ADJUSTMENT IN ORDER TO MAKE THE TUNING OF THE ANTENNA
CIRCUITS ADJUSTABLE. 

FOR REASONS ALREADY INDICATED WE THINK IT CLEAR THAT STONE SHOWED
TUNING OF THE ANTENNA CIRCUITS BEFORE MARCONI, AND IF THIS INVOLVED
INVENTION STONE WAS THE FIRST INVENTOR.  STONE'S APPLICATION EMPHASIZED
THE DESIRABILITY OF TUNING, AND DISCLOSED MEANS OF ADJUSTING THE TUNING
OF THE CLOSED CIRCUITS.  HIS VERY EXPLICIT RECOGNITION OF THE INCREASED
SELECTIVITY ATTAINED BY INDUCTIVE COUPLING OF SEVERAL RESONANT CIRCUITS
PLAINLY SUGGESTED TO THOSE SKILLED IN THE ART THAT THE ANTENNA CIRCUIT
COULD WITH ADVANTAGE BE A RESONANT CIRCUIT, THAT IS TO SAY A TUNED
CIRCUIT, AND HENCE THAT IT WAS ONE OF THE CIRCUITS TO BE TUNED.  HE
STRESSED THE IMPORTANCE OF TUNING "BY ANY SUITABLE DEVICE" THE
"APPARATUS" AT TRANSMITTER AND RECEIVER, WHICH INCLUDED AT BOTH AN
ANTENNA CIRCUIT. 

TUNING OF THE ANTENNA CIRCUIT WAS NOTHING NEW; LODGE HAD NOT ONLY
TAUGHT THAT THE ANTENNA CIRCUITS AT TRANSMITTER AND RECEIVER SHOULD BE
TUNED TO EACH OTHER BUT HAD SHOWN A MEANS OF ADJUSTING THE TUNING WHICH
WAS THE PRECISE MEANS ADOPTED BY MARCONI, AND WHICH STONE HAD, PRIOR TO
MARCONI, USED TO TUNE HIS CLOSED CIRCUIT - THE VARIABLE INDUCTANCE. 
TESLA, TOO, HAD SHOWN THE TUNING OF THE ANTENNA CIRCUIT AT THE
TRANSMITTER TO THE FREQUENCY DEVELOPED BY THE CHARGING CIRCUIT, AND THE
TUNING OF BOTH CIRCUITS AT THE RECEIVER TO THE FREQUENCY THUS
TRANSMITTED.  THUS MARCONI'S IMPROVEMENT IN TUNING THE ANTENNA CIRCUITS
IS ONE THE PRINCIPLES OF WHICH WERE WELL UNDERSTOOD AND STATED BY STONE
HIMSELF BEFORE MARCONI, AND THE MECHANISM FOR ACHIEVING WHICH HAD
PREVIOUSLY BEEN DISCLOSED BY LODGE AND STONE.  FN18 

SINCE NO INVENTION OVER STONE WAS INVOLVED IN TUNING THE ANTENNA
CIRCUITS, NEITHER MARCONI NOR STONE MADE AN INVENTION BY PROVIDING
ADJUSTABLE TUNING OF ANY OF THE CIRCUITS OR BY EMPLOYING LODGE'S
VARIABLE INDUCTANCE AS A MEANS OF ADJUSTING THE TUNING OF THE RESONANT
FOUR-CIRCUIT ARRANGEMENT EARLIER DISCLOSED BY STONE'S APPLICATION AND
PATENTED BY HIM.  NO INVENTION WAS INVOLVED IN EMPLOYING THE LODGE
VARIABLE INDUCTANCE FOR TUNING EITHER THE CLOSED OR THE OPEN CIRCUITS
IN LIEU OF OTHER STRUCTURAL MODES OF ADJUSTMENT FOR THAT PURPOSE.  THE
VARIABLE INDUCTANCE IMPARTED NO NEW FUNCTION TO THE CIRCUIT; AND MERELY
MAKING A KNOWN ELEMENT OF A KNOWN COMBINATION ADJUSTABLE BY A MEANS OF
ADJUSTMENT KNOWN TO THE ART, WHEN NO NEW OR UNEXPECTED RESULT IS
OBTAINED, IS NOT INVENTION.  PETERS V. HANSON, 129 U.S. 541, 550-51,
553; ELECTRIC CABLE CO. V. EDISON CO., 292 U.S. 69, 79, 80, AND CASES
CITED; SMYTH MFG. CO. V. SHERIDAN, 149 F. 208, 211; CF. BASSICK MFG.
CO. V. HOLLINGSHEAD CO., 298 U.S. 415, 424-5 AND CASES CITED. 

STONE'S CONCEPTION OF HIS INVENTION AS DISCLOSED BY HIS PATENT
ANTEDATED HIS APPLICATION.  IT IS CARRIED BACK TO JUNE 30, 1899, SEVEN
MONTHS BEFORE HIS APPLICATION, WHEN, IN A LETTER TO BAKER, HE DESCRIBED
IN TEXT AND DRAWINGS HIS FOUR-CIRCUIT SYSTEM FOR WIRELESS TELEGRAPHY IN
SUBSTANTIALLY THE SAME FORM AS THAT DISCLOSED BY THE APPLICATION.  HIS
LETTER IS EXPLICIT IN RECOMMENDING THE TUNING OF THE ANTENNA CIRCUITS. 
IN PART HE WROTE AS FOLLOWS:  "INSTEAD OF UTILIZING THE VERTICAL WIRE
(ANTENNA) ITSELF AT THE TRANSMITTING STATION AS THE OSCILLATOR, I
PROPOSE TO IMPRESS UPON THIS VERTICAL WIRE, OSCILLATIONS FROM AN
OSCILLATOR, WHICH OSCILLATIONS SHALL BE OF A FREQUENCY CORRESPONDING TO
THE FUNDAMENTAL OF THE WIRE.  SIMILARLY AT THE RECEIVING STATION, I
SHALL DRAW FROM THE VERTICAL WIRE, ONLY THAT COMPONENT OF THE COMPLEX
WAVE WHICH IS OF LOWEST FREQUENCY. 

"IF NOW THE FUNDAMENTAL OF THE WIRE AT THE RECEIVING STATION BE THE
SAME AS THAT OF THE WIRE AT THE TRANSMITTING STATION, THEN THE
RECEIVING STATION MAY RECEIVE SIGNALS FROM THE TRANSMITTING STATION,
BUT IF IT BE DIFFERENT FROM THAT OF THE TRANSMITTING STATION, IT MAY
NOT RECEIVE THOSE SIGNALS. 

     .         .         .         .   . 

"THE TUNING OF THESE CIRCUITS ONE TO ANOTHER AND ALL TO THE SAME
FREQUENCY WILL PROBABLY BE BEST ACCOMPLISHED EMPIRICALLY, THOUGH THE
BEST GENERAL PROPORTIONS MAY BE DETERMINED MATHEMATICALLY." 

ON JULY 18, 1899, STONE AGAIN WROTE TO BAKER, MATHEMATICALLY
DEMONSTRATING HOW TO ACHIEVE THE SINGLE FREQUENCY BY MEANS OF FORCED
VIBRATIONS.  HE EXPRESSED AS A TRIGONOMETRIC FUNCTION THE FORM TAKEN BY
THE FORCED WAVE "IF THE PERIOD OF THE IMPRESSED FORCE BE THE SAME AS
THAT OF THE FUNDAMENTAL OF THE VERTICAL WIRE."  HE ALSO POINTED OUT
THAT THE TRANSMITTING CIRCUIT WHICH HE HAD DISCLOSED IN HIS EARLIER
LETTER TO BAKER, "IS PRACTICALLY THE SAME AS THAT EMPLOYED BY TESLA,"
EXCEPT THAT STONE ADDED AN INDUCTANCE COIL IN THE CLOSED CIRCUIT "TO
GIVE ADDITIONAL MEANS OF TUNING" AND TO "SWAMP" THE REACTIONS FROM THE
COIL OF THE OSCILLATION TRANSFORMER AND THUS LOOSEN THE COUPLING
BETWEEN THE OPEN AND CLOSED CIRCUIT OF THE TRANSMITTER N19.  HIS
RECOGNITION OF THE EFFECT UPON THE CURRENT IN THE ANTENNA IF IT IS OF
THE SAME PERIOD AS THE CHARGING CIRCUIT; HIS STATEMENT THAT HIS
TRANSMITTING SYSTEM WAS THE SAME AS THAT EMPLOYED BY TESLA; HIS
RECOGNITION THAT THE FUNDAMENTAL OF THE RECEIVER SHOULD BE THE SAME AS
THAT OF THE TRANSMITTER ANTENNA WHEN USED FOR THE TRANSMISSION OF A
SINGLE FREQUENCY, AND FINALLY HIS STATEMENT THAT ALL FOUR CIRCUITS ARE
TO BE TUNED, "ONE TO ANOTHER AND ALL TO THE SAME FREQUENCY," ALL
INDICATE HIS UNDERSTANDING OF THE PRINCIPLES OF RESONANCE AND OF THE
SIGNIFICANCE OF TUNING THE ANTENNA CIRCUITS. 

STONE DISCLOSED HIS INVENTION TO OTHERS, AND IN JANUARY, 1900,
DESCRIBED IT TO HIS CLASS AT THE MASSACHUSETTS INSTITUTE OF
TECHNOLOGY.  BEFORE 1900 HE WAS DILIGENT IN OBTAINING CAPITAL TO
PROMOTE HIS INVENTION.  EARLY IN 1901 A SYNDICATE WAS ORGANIZED TO
FINANCE LABORATORY EXPERIMENTS.  THE STONE TELEGRAPH & TELEPHONE CO.
WAS ORGANIZED IN DECEMBER, 1901.  IT CONSTRUCTED SEVERAL EXPERIMENTAL
STATIONS IN 1902 AND 1903; BEGINNING IN 1904 OR 1905 IT BUILT WIRELESS
STATIONS AND SOLD APPARATUS, EQUIPPED A NAVY COLLIER AND SOME
BATTLESHIPS, AND IT APPLIED FOR A LARGE NUMBER OF PATENTS.  THE
APPARATUS USED IN THE STATIONS IS DESCRIBED BY STONE'S TESTIMONY IN
THIS SUIT AS HAVING RESONANT OPEN AND CLOSED CIRCUITS LOOSELY COUPLED
INDUCTIVELY TO EACH OTHER, AT BOTH THE TRANSMITTER AND RECEIVER, AND
ALL TUNED TO THE SAME WAVE LENGTH, AS DESCRIBED IN HIS LETTERS TO BAKER
AND HIS PATENT. 

WE THINK THAT STONE'S ORIGINAL APPLICATION SUFFICIENTLY DISCLOSED THE
DESIRABILITY THAT THE ANTENNA CIRCUITS IN TRANSMITTER AND RECEIVER BE
RESONANT TO THE SAME FREQUENCY AS THE CLOSED CIRCUITS, AS HE EXPRESSLY
RECOMMENDED IN HIS PATENT.  BUT IN ANY EVENT IT IS PLAIN THAT NO
DEPARTURE FROM OR IMPROPER ADDITION TO THE SPECIFICATIONS WAS INVOLVED
IN THE 1902 AMENDMENTS, WHICH MERELY MADE EXPLICIT WHAT WAS ALREADY
IMPLICIT.  HOBBS V. BEACH, 180 U.S. 383, 395-7.  WE WOULD ORDINARILY BE
SLOW TO RECOGNIZE AMENDMENTS MADE AFTER THE FILING OF MARCONI'S
APPLICATION AND DISCLOSING FEATURES SHOWN IN THAT APPLICATION.  CF.
SCHRIBER-SCHROTH CO. V. CLEVELAND TRUST CO., 305 U.S. 47, 57; POWERS
KENNEDY CORPORATION V. CONCRETE CO., 282 U.S. 175, 185-6; MACKAY RADIO
CO. V. RADIO CORPORATION, 306 U.S. 86.  BUT HERE STONE'S LETTERS TO
BAKER, WHOSE AUTHENTICITY HAS NOT BEEN QUESTIONED IN THIS CASE, AFFORD
CONVINCING PROOF THAT STONE HAD CONCEIVED OF THE IDEA OF TUNING ALL
FOUR CIRCUITS PRIOR TO THE DATE OF MARCONI'S INVENTION.  CF. BICKELL V.
SMITH-HAMBURY-SCOTT WELDING CO., 53 F.2D 356, 358. 

IT IS WELL ESTABLISHED THAT AS BETWEEN TWO INVENTORS PRIORITY OF
INVENTION WILL BE AWARDED TO THE ONE WHO BY SATISFYING PROOF CAN SHOW
THAT HE FIRST CONCEIVED OF THE INVENTION.  PHILADELPHIA & TRENTON R.
CO. V. STIMPSON, 14 PET. 448, 462; LOOM CO. V. HIGGINS, 105 U.S. 580,
593; RADIO CORPORATION V. RADIO LABORATORIES, 293 U.S. 1, 11-13;
CHRISTIE V. SEYBOLD, 55 F. 69, 76; AUTOMATIC WEIGHING MACH. CO. V.
PNEUMATIC SCALE CORP., 158 F. 415, 417-22; HARPER V. ZIMMERMANN, 41
F.2D 261, 265; SACHS V. HARTFORD ELECTRIC SUPPLY CO., 47 F.2D 743,
748. 

COMMERCIAL SUCCESS ACHIEVED BY THE LATER INVENTOR AND PATENTEE CANNOT
SAVE HIS PATENT FROM THE DEFENSE OF ANTICIPATION BY A PRIOR INVENTOR. 
FN20  COMPARE SMITH V. HALL, 301 U.S. 216 WITH SMITH V. SNOW, 294 U.S.
1.  TO OBTAIN THE BENEFIT OF HIS PRIOR CONCEPTION, THE INVENTOR MUST
NOT ABANDON HIS INVENTION, GAYLER V. WILDER, 10 HOW.  477, 481, BUT
MUST PROCEED WITH DILIGENCE TO REDUCE IT TO PRACTICE.  WE THINK STONE
HAS SHOWN THE NECESSARY DILIGENCE.  COMPARE RADIO CORPORATION V. RADIO
LABORATORIES, SUPRA, 13, 14.  THE DELAY UNTIL 1902 IN INCLUDING IN HIS
PATENT SPECIFICATIONS THE SENTENCES ALREADY REFERRED TO, WHICH
EXPLICITLY PROVIDE FOR TUNING OF THE ANTENNA CIRCUITS, DOES NOT IN THE
CIRCUMSTANCES OF THIS CASE SHOW ANY ABANDONMENT OF THAT FEATURE OF
STONE'S INVENTION SINCE, AS WE HAVE SEEN, THE IDEA OF SUCH TUNING WAS
AT LEAST IMPLICIT IN HIS ORIGINAL APPLICATION, AND THE 1902 AMENDMENTS
MERELY CLARIFIED THAT APPLICATION'S EFFECT AND PURPORT. 

MARCONI'S PATENT NO. 763,772 WAS SUSTAINED BY A UNITED STATES DISTRICT
COURT IN MARCONI WIRELESS TELEGRAPH CO. V. NATIONAL SIGNALLING CO., 213
F. 815, AND HIS INVENTION AS SPECIFIED IN HIS CORRESPONDING BRITISH
PATENT NO. 7777 OF 1900, WAS UPHELD IN MARCONI V. BRITISH RADIO &
TELEGRAPH CO., 27 T.L.R. 274, 28 R.P.C. 18.  THE FRENCH COURT LIKEWISE
SUSTAINED HIS FRENCH PATENT, CIVIL TRIBUNAL OF THE SEINE, DEC. 24,
1912.  NONE OF THESE COURTS CONSIDERED THE STONE PATENT OR HIS
LETTERS.  ALL REST THEIR FINDINGS OF INVENTION ON MARCONI'S DISCLOSURE
OF A FOUR-CIRCUIT SYSTEM AND ON HIS TUNING OF THE FOUR CIRCUITS, IN THE
SENSE OF RENDERING THEM RESONANT TO THE SAME FREQUENCY, IN BOTH OF
WHICH RESPECTS STONE ANTICIPATED MARCONI, AS WE HAVE SEEN.  NONE OF
THESE OPINIONS SUGGESTS THAT IF THE COURTS HAD KNOWN OF STONE'S
ANTICIPATION, THEY WOULD HAVE HELD THAT MARCONI SHOWED INVENTION OVER
STONE BY MAKING THE TUNING OF HIS ANTENNA CIRCUIT ADJUSTABLE, OR BY
USING LODGE'S VARIABLE INDUCTANCE FOR THAT PURPOSE.  IN MARCONI
WIRELESS TELEGRAPH CO. V. KILBOURNE & CLARK MFG. CO., 239 F. 328,
AFFIRMED 265 F. 644, THE DISTRICT COURT HELD THAT THE ACCUSED DEVICE
DID NOT INFRINGE.  WHILE IT ENTERED FORMAL FINDINGS OF VALIDITY WHICH
THE CIRCUIT COURT OF APPEALS APPROVED, NEITHER COURT'S OPINION
DISCUSSED THE QUESTION OF VALIDITY AND THAT QUESTION WAS NOT ARGUED IN
THE CIRCUIT COURT OF APPEALS.  FN21    MARCONI'S REPUTATION AS THE MAN
WHO FIRST ACHIEVED SUCCESSFUL RADIO TRANSMISSION RESTS ON HIS ORIGINAL
PATENT, WHICH BECAME REISSUE NO. 11,913, AND WHICH IS NOT HERE IN
QUESTION.  THAT REPUTATION, HOWEVER WELL-DESERVED, DOES NOT ENTITLE HIM
TO A PATENT FOR EVERY LATER IMPROVEMENT WHICH HE CLAIMS IN THE RADIO
FIELD.  PATENT CASES, LIKE OTHERS, MUST BE DECIDED NOT BY WEIGHING THE
REPUTATIONS OF THE LITIGANTS, BUT BY CAREFUL STUDY OF THE MERITS OF
THEIR RESPECTIVE CONTENTIONS AND PROOFS.  AS THE RESULT OF SUCH A STUDY
WE ARE FORCED TO CONCLUDE, WITHOUT UNDERTAKING TO DETERMINE WHETHER
STONE'S PATENT INVOLVED INVENTION, THAT THE COURT OF CLAIMS WAS RIGHT
IN DECIDING THAT STONE ANTICIPATED MARCONI, AND THAT MARCONI'S PATENT
DID NOT DISCLOSE INVENTION OVER STONE.  HENCE THE JUDGMENT BELOW
HOLDING INVALID THE BROAD CLAIMS OF THE MARCONI PATENT MUST BE
AFFIRMED.  IN VIEW OF OUR INTERPRETATION OF THE STONE APPLICATION AND
PATENT WE NEED NOT CONSIDER THE CORRECTNESS OF THE COURT'S CONCLUSION
THAT EVEN IF STONE'S DISCLOSURES SHOULD BE READ AS FAILING TO DIRECT
THAT THE ANTENNA CIRCUITS BE MADE RESONANT TO A PARTICULAR FREQUENCY,
MARCONI'S PATENT INVOLVED NO INVENTION OVER LODGE, TESLA, AND STONE. 

CLAIM 16 OF MARCONI PATENT NO. 763,772. 

THE GOVERNMENT ASKS US TO REVIEW SO MUCH OF THE DECISION OF THE COURT
OF CLAIMS AS HELD VALID AND INFRINGED CLAIM 16 OF MARCONI'S PATENT NO.
763,772.  THAT CLAIM IS FOR AN ANTENNA CIRCUIT AT THE RECEIVER
CONNECTED AT ONE END TO "AN OSCILLATION-RECEIVING CONDUCTOR" AND AT THE
OTHER TO A CAPACITY (WHICH COULD BE THE EARTH), CONTAINING THE PRIMARY
WINDING OF A TRANSFORMER, "MEANS FOR ADJUSTING THE TWO TRANSFORMER
CIRCUITS IN ELECTRICAL RESONANCE WITH EACH OTHER," AND "AN ADJUSTABLE
CONDENSER IN A SHUNT CONNECTED WITH THE OPEN CIRCUIT, AND AROUND SAID
TRANSFORMER-COIL."  MARCONI THUS DISCLOSES AND CLAIMS THE ADDITION TO
THE RECEIVER ANTENNA OF AN ADJUSTABLE CONDENSER CONNECTED IN A SHUNT
AROUND THE PRIMARY OF THE TRANSFORMER.  THE SPECIFICATIONS DESCRIBE THE
CONDENSER AS "PREFERABLY ONE PROVIDED WITH TWO TELESCOPING METALLIC
TUBES SEPARATED BY A DIELECTRIC AND ARRANGED TO READILY VARY THE
CAPACITY BY BEING SLID UPON EACH OTHER."  MARCONI, HOWEVER, MAKES NO
CLAIM FOR THE PARTICULAR CONSTRUCTION OF THE CONDENSER. 

ALTHOUGH THE CLAIM BROADLY PROVIDES FOR "MEANS OF ADJUSTING THE TWO
TRANSFORMER-CIRCUITS IN ELECTRICAL RESONANCE," MARCONI'S DRAWINGS
DISCLOSE THE USE OF A VARIABLE INDUCTANCE CONNECTED BETWEEN THE AERIAL
CONDUCTOR AND THE TRANSFORMER-COIL IN SUCH A MANNER THAT THE VARIABLE
INDUCTANCE IS NOT INCLUDED IN THAT PART OF THE ANTENNA CIRCUIT WHICH IS
BRIDGED BY THE CONDENSER.  THE CONDENSER IS THUS ARRANGED IN PARALLEL
WITH THE TRANSFORMER COIL AND IN SERIES WITH THE VARIABLE INDUCTANCE. 
IN HIS SPECIFICATIONS MARCONI ENUMERATES A NUMBER OF PREFERRED
ADJUSTMENTS FOR TUNING THE TRANSMITTING AND RECEIVING STATIONS, SHOWING
THE PRECISE EQUIPMENT TO BE USED TO ACHIEVE TUNING TO THE DESIRED WAVE
LENGTH.  THE TWO TUNINGS WHICH SHOW THE USE OF THE ADJUSTABLE CONDENSER
IN THE RECEIVER ANTENNA ALSO MAKE USE OF THE VARIABLE INDUCTANCE.  AND
HIS SPECIFICATIONS STATE:  "IN A SHUNT AROUND SAID PRIMARY J1(THE
PRIMARY OF THE TRANSFORMER) I USUALLY PLACE A CONDENSER H  ...  AN
INDUCTANCE COIL G1 OF VARIABLE INDUCTANCE IS INTERPOSED IN THE PRIMARY
CIRCUIT OF THE TRANSFORMER, BEING PREFERABLY LOCATED BETWEEN THE
CYLINDER F1(THE AERIAL CAPACITY) AND THE COIL J1." 

IN THIS RESPECT THE DEVICES WHICH THE COURT BELOW FOUND TO INFRINGE
CLAIM 16 EXHIBIT SOMEWHAT DIFFERENT ARRANGEMENTS.  APPARATUS
MANUFACTURED BY THE KILBOURNE AND CLARK COMPANY, AND USED BY THE
GOVERNMENT, HAD A RECEIVER ANTENNA CIRCUIT CONTAINING A VARIABLE
INDUCTANCE IN ADDITION TO THE TRANSFORMER COIL, AND HAVING AN
ADJUSTABLE CONDENSER SO CONSTRUCTED THAT IT COULD BE CONNECTED EITHER
IN SERIES WITH THE TWO INDUCTANCES, OR IN A SHUNT BRIDGING BOTH OF
THEM.  APPARATUS MANUFACTURED BY THE TELEFUNKEN COMPANY SHOWED A
SIMILAR ANTENNA CIRCUIT HAVING NO VARIABLE INDUCTANCE, BUT HAVING AN
ADJUSTABLE CONDENSER SO ARRANGED THAT IT COULD BE CONNECTED EITHER IN
SERIES WITH THE TRANSFORMER COIL, OR IN PARALLEL WITH IT BY PLACING THE
CONDENSER IN A SHUNT CIRCUIT WHICH WOULD THUS BRIDGE ALL THE INDUCTANCE
IN THE ANTENNA CIRCUIT. 

THE MARCONI PATENT DOES NOT DISCLOSE THE FUNCTION WHICH IS SERVED BY
THE ADJUSTABLE CONDENSER DISCLOSED BY CLAIM 16, EXCEPT IN SO FAR AS
MARCONI IN HIS SPECIFICATIONS, IN DESCRIBING THE MEANS OF TUNING THE
RECEIVER CIRCUITS TO A PARTICULAR DESIRED FREQUENCY, PRESCRIBES
SPECIFIC VALUES FOR BOTH THE VARIABLE INDUCTANCE AND THE ADJUSTABLE
CONDENSER IN THE RECEIVER ANTENNA CIRCUIT.  THE COURT OF CLAIMS FOUND
THAT THIS INDICATED "THAT THE PURPOSE OF THE CONDENSER CONNECTED IN
SHUNT WITH THE PRIMARY WINDING OF THE TRANSFORMER OF THE RECEIVER, IS
TO ENABLE THE ELECTRICAL PERIODICITY OR TUNING OF THE OPEN CIRCUIT OF
THE RECEIVER TO BE ALTERED." 

THE COURT THUS BASED ITS HOLDING THAT CLAIM 16 DISCLOSED PATENTABLE
INVENTION ON ITS FINDING THAT MARCONI, BY THE USE OF AN ADJUSTABLE
CONDENSER IN THE ANTENNA CIRCUIT, DISCLOSED A NEW AND USEFUL METHOD OF
TUNING THAT CIRCUIT.  THE GOVERNMENT CONTENDS THAT THE ARRANGEMENT OF
THE ANTENNA CIRCUIT DISCLOSED BY MARCONI'S SPECIFICATIONS - WITH THE
CONDENSER SHUNTED AROUND THE TRANSFORMER COIL BUT NOT AROUND THE
VARIABLE INDUCTANCE - IS SUCH THAT THE CONDENSER CANNOT INCREASE THE
WAVE-LENGTH OVER WHAT IT WOULD BE WITHOUT SUCH A CONDENSER, AND THAT IT
CAN DECREASE THAT WAVE-LENGTH ONLY WHEN ADJUSTED TO HAVE A VERY SMALL
CAPACITY.  THE GOVERNMENT CONTENDS THEREFORE THAT ITS PRINCIPAL
FUNCTION IS NOT THAT OF TUNING BUT OF PROVIDING "LOOSE COUPLING."  FN22
THE GOVERNMENT DOES NOT DENY THAT THIS PRECISE ARRANGEMENT IS NOVEL
AND USEFUL, BUT IT CONTENDS THAT ITS DEVICES DO NOT INFRINGE THAT
PRECISE ARRANGEMENT, AND THAT CLAIM 16, IF MORE BROADLY CONSTRUED SO AS
TO COVER ITS APPARATUS, IS INVALID BECAUSE ANTICIPATED BY THE PRIOR
ART, PARTICULARLY THE PATENTS OF PUPIN AND FESSENDEN. 

AS WE HAVE SEEN FROM OUR DISCUSSION OF THE OTHER CLAIMS OF THE
MARCONI PATENT, THE IDEA OF TUNING THE ANTENNA CIRCUITS INVOLVED NO
PATENTABLE INVENTION.  IT WAS WELL KNOWN THAT TUNING WAS ACHIEVED BY
THE PROPER ADJUSTMENT OF EITHER THE INDUCTANCE OR THE CAPACITY IN A
CIRCUIT, OR BOTH.  LODGE AND STONE HAD ACHIEVED TUNING BY THE USE OF AN
ADJUSTABLE INDUCTION COIL, SO ARRANGED THAT ITS EFFECTIVE INDUCTANCE
COULD READILY BE VARIED. 

BUT CAPACITY WAS NO LESS IMPORTANT IN TUNING.  DE TUNZELMANN'S
DESCRIPTIONS OF HERTZ'S EXPERIMENTS SHOW THAT HERTZ, IN ORDER TO MAKE
HIS RECEIVING APPARATUS RESONANT TO THE PARTICULAR FREQUENCY RADIATED
BY THE TRANSMITTER, CAREFULLY DETERMINED THE CAPACITY OF BOTH, AND
INDEED DISCLOSED A MEANS OF ADJUSTING THE CAPACITY OF THE RECEIVER BY
ATTACHING TO IT WIRES WHOSE LENGTH COULD READILY BE VARIED.  MARCONI IN
HIS PRIOR PATENT NO. 586,193, GRANTED JULY 13, 1897, WHICH BECAME
REISSUE NO. 11,913, HAD DISCLOSED A TWO-CIRCUIT SYSTEM FOR THE
TRANSMISSION OF RADIO WAVES IN WHICH BOTH TRANSMITTER AND RECEIVER HAD
LARGE METAL PLATES SERVING AS CAPACITY AREAS.  HIS SPECIFICATIONS
DESCRIBE THE CONSTRUCTION OF TRANSMITTING AND RECEIVING STATIONS SO AS
TO BE RESONANT TO THE SAME FREQUENCY BY CALCULATION OF THE LENGTH OF
THESE METAL PLATES, THEREBY DETERMINING THE CAPACITY OF THE ANTENNA
CIRCUITS OF TRANSMITTER AND RECEIVER RESPECTIVELY.  HE STATES THAT THE
PLATES ARE "PREFERABLY OF SUCH A LENGTH AS TO BE ELECTRICALLY TUNED
WITH THE ELECTRIC OSCILLATIONS TRANSMITTED," AND DESCRIBES MEANS OF
ACHIEVING THIS RESULT SO AS TO DETERMINE "THE LENGTH MOST APPROPRIATE
TO THE LENGTH OF WAVE EMITTED BY THE OSCILLATOR."  CLAIM 24 OF HIS
PATENT CLAIMS "THE COMBINATION OF A TRANSMITTER CAPABLE OF PRODUCING
ELECTRICAL OSCILLATIONS OR RAYS OF DEFINITE CHARACTER AT THE WILL OF
THE OPERATOR, AND A RECEIVER LOCATED AT A DISTANCE AND HAVING A
CONDUCTOR TUNED TO RESPOND TO SUCH OSCILLATIONS  ...  "  THE ONLY MEANS
OF ACHIEVING THIS TUNING DISCLOSED BY THE SPECIFICATIONS IS THE
DETERMINATION OF THE CAPACITY OF THE ANTENNA OF TRANSMITTER AND
RECEIVER IN THE MANNER DESCRIBED. 

MOREOVER THE USE OF AN ADJUSTABLE CONDENSER AS A MEANS OF TUNING WAS
KNOWN TO THE PRIOR ART. PUPIN IN PATENT NO. 640,516, APPLIED FOR MAY
28, 1895, AND GRANTED JANUARY 2, 1900, BEFORE MARCONI, DISCLOSED THE
USE OF AN ADJUSTABLE CONDENSER AS A MEANS OF TUNING A RECEIVING CIRCUIT
IN A SYSTEM OF WIRED TELEGRAPHY.  PUPIN'S PATENT WAS DESIGNED TO PERMIT
THE SIMULTANEOUS TRANSMISSION OVER A WIRE OF SEVERAL MESSAGES AT
DIFFERENT FREQUENCIES, AND THE SELECTIVE RECEPTION AT A GIVEN RECEIVING
STATION OF THE PARTICULAR MESSAGE DESIRED, BY TUNING THE RECEIVING
CIRCUIT TO THE FREQUENCY AT WHICH THAT MESSAGE WAS TRANSMITTED.  HIS
SPECIFICATIONS AND DRAWINGS DISCLOSE AT THE RECEIVER A TELEGRAPH KEY OR
OTHER SUITABLE DETECTING INSTRUMENT LOCATED IN A SHUNT FROM THE WIRE
ALONG WHICH THE MESSAGES WERE PASSED.  THE SHUNT CIRCUIT INCLUDED A
CONDENSER "OF ADJUSTABLE CAPACITY," AN ADJUSTABLE INDUCTION COIL, AND A
DETECTING INSTRUMENT.  HIS SPECIFICATIONS STATE THAT "THE CAPACITY OF
THE CONDENSER H AND THE SELF-INDUCTION OF THE (INDUCTION) COIL I BEING
SUCH THAT THE NATURAL PERIOD OR FREQUENCY OF THE SHUNT OR RESONANCE
CIRCUIT HI IS THE SAME AS THE PERIOD OF ONE OF THE ELECTROMOTIVE FORCES
WHICH PRODUCE THE CURRENT COMING OVER THE LINE  ... THIS CIRCUIT HI
WILL BE IN RESONANCE WITH THE CURRENT AND THEREFORE WILL ACT
SELECTIVELY WITH RESPECT TO IT."  HE DISCLOSED AN ALTERNATIVE SYSTEM IN
WHICH A SIMILAR SHUNT CIRCUIT CONTAINING A CONDENSER, ALREADY DESCRIBED
AS OF ADJUSTABLE CAPACITY, AND THE PRIMARY OF A TRANSFORMER, WAS
INDUCTIVELY COUPLED WITH ANOTHER CIRCUIT CONTAINING THE SECONDARY OF
THE TRANSFORMER, AN INDUCTION COIL, AN ADJUSTABLE CONDENSER, AND A
RECEIVING DEVICE.  HE THUS IN EFFECT DISCLOSED AN OPEN RECEIVING
CIRCUIT WITH EARTH CONNECTION INCLUDING THE PRIMARY OF AN OSCILLATION
TRANSFORMER - THE SECONDARY OF WHICH IS CONNECTED IN A CIRCUIT WITH A
TELEGRAPH KEY OR OTHER SUITABLE DETECTING INSTRUMENT - AND AN
ADJUSTABLE CONDENSER IN A SHUNT BRIDGING THE PRIMARY OF THE TRANSFORMER
AND THUS CONNECTED IN PARALLEL WITH IT. 

THUS PUPIN SHOWED THE USE OF AN ADJUSTABLE CONDENSER AS A MEANS OF
TUNING AN ELECTRICAL CIRCUIT SO AS TO BE SELECTIVELY RECEPTIVE TO
IMPULSES OF A PARTICULAR FREQUENCY.  IT IS TRUE THAT HIS PATENT RELATED
NOT TO THE RADIO ART BUT TO THE ART OF WIRED TELEGRAPHY, AN ART WHICH
EMPLOYED MUCH LOWER FREQUENCIES.  BUT SO FAR AS WE ARE INFORMED THE
PRINCIPLES OF RESONANCE, AND THE METHODS OF ACHIEVING IT, APPLICABLE TO
THE LOW FREQUENCIES USED BY PUPIN ARE THE SAME AS THOSE APPLICABLE TO
HIGH FREQUENCY RADIO TRANSMISSION AND RECEPTION. 

FESSENDEN, IN PATENT NO. 706,735, APPLIED FOR DEC. 15, 1899, BEFORE
MARCONI, AND GRANTED AUG. 12, 1902, DISCLOSED, IN THE ANTENNA CIRCUIT
OF A RADIO RECEIVER, A CONDENSER IN A SHUNT AROUND A COIL.  THE COIL
WAS USED IN EFFECT AS A TRANSFORMER; BY THE MAGNETIC LINES OF FORCE SET
UP WHEN A CURRENT PASSED THROUGH IT AN INDICATOR WAS CAUSED TO MOVE,
THEREBY EITHER CLOSING AN ELECTRICAL CONNECTION OR GIVING A VISIBLE
SIGNAL.  FESSENDEN'S SPECIFICATIONS DO NOT CLEARLY DISCLOSE THE PURPOSE
OF HIS CONDENSER, BUT THEY SPECIFY THAT IT MUST BE "OF THE PROPER
SIZE."  HE ALSO DISCLOSES A CONDENSER IN A SHUNT CIRCUIT AROUND THE
TERMINALS OF A SPARK GAP IN THE ANTENNA CIRCUIT OF THE TRANSMITTER, AND
HIS SPECIFICATIONS PRESCRIBE THAT "THIS SHUNT-CIRCUIT MUST BE TUNED TO
THE RECEIVING-CONDUCTOR; OTHERWISE THE OSCILLATIONS PRODUCED BY IT WILL
HAVE NO ACTION UPON THE WAVE-RESPONSIVE DEVICE AT THE RECEIVING
STATION." 

WE HAVE REFERRED TO THE PUPIN AND FESSENDEN PATENTS, NOT FOR THE
PURPOSE OF DETERMINING WHETHER THEY ANTICIPATE CLAIM 16 OF MARCONI, AS
THE GOVERNMENT INSISTS, BUT TO INDICATE THE IMPORTANCE OF CONSIDERING
THEM IN THAT ASPECT, TOGETHER WITH THE RELEVANT TESTIMONY, WHICH THE
COURT BELOW DID NOT DO.  IN THE PRESENT STATE OF THE RECORD WE DO NOT
UNDERTAKE TO DETERMINE WHETHER AND TO WHAT EXTENT THESE DISCLOSURES
EITHER ANTICIPATE CLAIM 16 OF THE MARCONI PATENT OR REQUIRE THAT CLAIM
TO BE SO NARROWLY CONSTRUED THAT DEFENDANTS' ACCUSED DEVICES OR SOME OF
THEM DO NOT INFRINGE MARCONI. 

ALTHOUGH THE PUPIN AND FESSENDEN PATENTS WERE IN THE RECORD BEFORE
THE COURT OF CLAIMS WHEN IT ENTERED ITS DECISION FINDING CLAIM 16 VALID
AND INFRINGED, THEY WERE NOT REFERRED TO IN CONNECTION WITH CLAIM 16
EITHER IN THE COURT'S OPINION OR IN ITS FINDINGS, EVIDENTLY BECAUSE NOT
URGED UPON THAT COURT BY THE GOVERNMENT AS ANTICIPATING CLAIM 16.  BUT
THIS COURT, IN THE EXERCISE OF ITS APPELLATE POWER, IS NOT PRECLUDED
FROM LOOKING AT ANY EVIDENCE OF RECORD WHICH, WHETHER OR NOT CALLED TO
THE ATTENTION OF THE COURT BELOW, IS RELEVANT TO AND MAY AFFECT THE
CORRECTNESS OF ITS DECISION SUSTAINING OR DENYING ANY CONTENTION WHICH
A PARTY HAS MADE BEFORE IT.  MUNCIE GEAR CO. V. OUTBOARD MOTOR CO., 315
U.S. 759, 766-8; ACT OF MAY 22, 1939, 28 U.S.C. SEC. 288; CF. HORMEL V.
HELVERING, 312 U.S. 552, 556. 

IN ORDER TO DETERMINE WHETHER THIS COURT SHOULD CONSIDER THE EVIDENCE
WHICH THE GOVERNMENT NOW PRESSES UPON IT, AND SHOULD ON THE BASIS OF
THAT EVIDENCE EITHER DECIDE FOR ITSELF WHETHER CLAIM 16 IS VALID AND
INFRINGED OR REMAND THAT QUESTION TO THE COURT OF CLAIMS FOR FURTHER
CONSIDERATION, IT IS NECESSARY TO SET OUT IN SOME DETAIL THE RELEVANT
PROCEEDINGS BELOW.  THE CASE WAS REFERRED TO A SPECIAL COMMISSIONER FOR
THE TAKING OF TESTIMONY UNDER A STIPULATION THAT THE ISSUE OF
REASONABLE COMPENSATION FOR DAMAGES AND PROFITS BE POSTPONED UNTIL THE
DETERMINATION OF THE ISSUES OF VALIDITY AND INFRINGEMENT.  ON JUNE 26,
1933, THE COMMISSIONER FILED A REPORT IN WHICH HE MADE THE FOLLOWING
FINDINGS WITH REGARD TO CLAIM 16, WHICH THE COURT OF CLAIMS LATER
ADOPTED IN SUBSTANCE:    "LXII.  CLAIM 16 OF MARCONI #763772 IS
DIRECTED TO SUBJECT MATTER WHICH IS NEW AND USEFUL  ... 

"LXV.  THE RECEIVING APPARATUS OF THE KILBOURNE & CLARK COMPANY,
SHOWN IN EXHIBIT 95, AND THE RECEIVER MADE BY THE TELEFUNKEN COMPANY,
ILLUSTRATED IN EXHIBIT 79, EACH HAS APPARATUS COMING WITHIN THE
TERMINOLOGY OF CLAIM 16." 

BOTH PARTIES FILED EXCEPTIONS TO THE COMMISSIONER'S REPORT.  THE
MARCONI COMPANY EXCEPTED TO PART OF FINDING LXII, AND TOOK SEVERAL
EXCEPTIONS WHICH WERE FORMALLY ADDRESSED TO FINDING LXV.  THE
GOVERNMENT, IN A MEMORANDUM, OPPOSED THE SUGGESTED AMENDMENTS TO THESE
FINDINGS.  BUT THE GOVERNMENT FILED NO EXCEPTIONS TO THESE TWO
FINDINGS, NOR DID IT, IN ITS EXTENSIVE BRIEF BEFORE THE COURT OF
CLAIMS, MAKE ANY CONTENTION THAT CLAIM 16 EITHER IS INVALID OR WAS NOT
INFRINGED. 

AFTER THE COURT HAD RENDERED ITS INTERLOCUTORY DECISION HOLDING CLAIM
16 VALID AND INFRINGED, THE CASE WAS SENT BACK TO THE COMMISSIONER TO
TAKE EVIDENCE ON THE ACCOUNTING.  MUCH EVIDENCE WAS TAKEN BEARING ON
THE FUNCTION SERVED BY THE CONDENSER IN THE ARRANGEMENT DESCRIBED IN
CLAIM 16 AND IN THE GOVERNMENT'S RECEIVERS, AND IN THAT CONNECTION THE
PUPIN AND FESSENDEN PATENTS WERE AGAIN INTRODUCED IN EVIDENCE BY THE
GOVERNMENT.  WHEN THE PUPIN PATENT WAS OFFERED THE COMMISSIONER STATED:
"OBVIOUSLY, AS I UNDERSTAND THE OFFER OF THIS PATENT OF PUPIN, IT DOES
NOT IN ANY WAY ATTACK THE VALIDITY OF CLAIM 16 OF THE MARCONI PATENT IN
SUIT.  AS YOU STATE MR. BLACKMAR, THAT HAS BEEN DECIDED BY THE COURT,
AND I DO NOT RECALL JUST NOW WHAT PROCEDURE WAS FOLLOWED AFTER THE
DECISION AND PRIOR TO THIS ACCOUNTING PROCEEDING; BUT THE DEFENDANT HAD
AT THAT TIME OPPORTUNITY FOR A MOTION FOR A NEW TRIAL AND PRESENTATION
OF NEWLY-DISCOVERED EVIDENCE AND ALL THOSE MATTERS."  ACCORDINGLY, THE
COMMISSIONER STATED THAT HE RECEIVED THE PATENT IN EVIDENCE "FOR THE
SOLE PURPOSE OF AIDING THE WITNESS AND THE COMMISSIONER AND THE COURT
IN AN UNDERSTANDING OF HOW THE CONDENSER IN THE MARCONI PATENT
OPERATES."  AND IN OFFERING THE FESSENDEN PATENT COUNSEL FOR THE
GOVERNMENT SIMILARLY STATED THAT IT WAS OFFERED "NOT TO SHOW INVALIDITY
BUT AS SHOWING JUSTIFICATION FOR THE DEFENDANT'S USE." 

IN ITS EXCEPTIONS TO THE COMMISSIONER'S REPORT ON THE ACCOUNTING THE
GOVERNMENT ASKED THE COURT OF CLAIMS TO MAKE CERTAIN SPECIFIC FINDINGS
AS TO THE MODE OF OPERATION OF THE ARRANGEMENTS DISCLOSED IN THE PUPIN
AND FESSENDEN PATENTS, AND ALSO TO FIND THAT 

"THE MODE OF CONNECTING THE PRIMARY CONDENSER IN PARALLEL WITH THE
ANTENNA-TO-EARTH CAPACITY USED BY THE DEFENDANT FOLLOWED THE DISCLOSURE
OF PUPIN 640,516 AND THE FESSENDEN PATENT 706,735 ... AND HENCE DOES
NOT INFRINGE THE MARCONI CLAIM 16 WHICH IS BASED UPON A DIFFERENT
ARRANGEMENT, OPERATING IN A DIFFERENT MANNER TO OBTAIN A DIFFERENT
RESULT."  THE GOVERNMENT CONTENDED THAT THERE WAS NO FINDING OF FACT
THAT CLAIM 16 HAD BEEN INFRINGED, AND THAT THE COURT, IN THE COURSE OF
THE ACCOUNTING PROCEEDING HAD BY AN ORDER OF OCTOBER 22, 1937, REOPENED
THE ENTIRE SUBJECT OF INFRINGEMENT.  WE AGREE WITH THE COURT THAT THE
COMMISSIONER'S FINDING LXV, WHICH THE COURT ADOPTED AS FINDING LXIII,
WAS A FINDING OF INFRINGEMENT, AND WE SEE NO REASON TO QUESTION THE
COURT'S CONCLUSION THAT ITS ORDER HAD NOT REOPENED THE SUBJECT OF
INFRINGEMENT. 

IN VIEW, HOWEVER, OF THE GOVERNMENT'S APPARENT MISUNDERSTANDING OF
THE SCOPE OF THE ISSUES LEFT OPEN ON THE ACCOUNTING WE THINK THAT ITS
REQUEST FOR A FINDING OF NON-INFRINGEMENT SPECIFICALLY ADDRESSED TO THE
PUPIN AND FESSENDEN PATENTS WAS A SUFFICIENT REQUEST TO THE COURT TO
RECONSIDER ITS PREVIOUS DECISION OF INFRINGEMENT.  AND WHILE MOST OF
THE ARGUMENT ON THE GOVERNMENT'S EXCEPTIONS TO THE COMMISSIONER'S
REPORT WAS BASED ON EVIDENCE TAKEN UPON THE ACCOUNTING, THE
GOVERNMENT'S BRIEFS SUFFICIENTLY DISCLOSED TO THE COURT THAT THE PUPIN
AND FESSENDEN PATENTS, AT LEAST, HAD BEEN IN THE RECORD PRIOR TO THE
INTERLOCUTORY DECISION. 

THE COURT, IN REJECTING THE GOVERNMENT'S REQUEST FOR A FINDING OF NON
INFRINGEMENT, STATED: "THE QUESTION OF INFRINGEMENT OF MARCONI CLAIM 16
...  IS NOT BEFORE US IN THE PRESENT ACCOUNTING."  "THE SOLE PURPOSE
AND FUNCTION OF AN ACCOUNTING IN A PATENT INFRINGEMENT CASE IS TO
ASCERTAIN THE AMOUNT OF COMPENSATION DUE, AND NO OTHER ISSUE CAN BE
BROUGHT INTO THE ACCOUNTING TO CHANGE OR ALTER THE COURT'S PRIOR
DECISION."  WE CANNOT SAY WITH CERTAINTY WHETHER IN REJECTING THE
GOVERNMENT'S REQUEST THE COURT THOUGHT THAT IT LACKED POWER TO
RECONSIDER ITS PRIOR DECISION, OR WHETHER IT HELD MERELY THAT IN THE
EXERCISE OF ITS DISCRETION IT SHOULD NOT DO SO.  NOR DOES IT APPEAR
THAT, ASSUMING IT CONSIDERED THE QUESTION TO BE ONE OF DISCRETION, IT
RECOGNIZED THAT IN PART AT LEAST THE GOVERNMENT'S REQUEST WAS BASED ON
EVIDENCE, HAVING AN IMPORTANT BEARING ON THE VALIDITY AND CONSTRUCTION
OF CLAIM 16, WHICH HAD BEEN BEFORE THE COURT BUT HAD NOT BEEN
CONSIDERED BY IT WHEN IT HELD CLAIM 16 VALID AND INFRINGED. 

ALTHOUGH THE INTERLOCUTORY DECISION OF THE COURT OF CLAIMS ON THE
QUESTION OF VALIDITY AND INFRINGEMENT WAS APPEALABLE, UNITED STATES V.
ESNAULT-PELTERIE, 299 U.S. 201, 303 U.S. 26; 28 U.S.C. SEC. 288(B), AS
ARE INTERLOCUTORY ORDERS OF DISTRICT COURTS IN SUITS TO ENJOIN
INFRINGMENT, 28 U.S.C. SEC. 227(A); SIMMONS CO. V. GRIER BROS. CO., 258
U.S. 82, 89, THE DECISION WAS NOT FINAL UNTIL THE CONCLUSION OF THE
ACCOUNTING.  BARNARD V. GIBSON, 7 HOW.  649; HUMISTON V. STAINTHORP, 2
WALL.  106; SIMMONS CO. V. GRIER BROS. CO., SUPRA, 89.  HENCE THE COURT
DID NOT LACK POWER AT ANY TIME PRIOR TO ENTRY OF ITS FINAL JUDGMENT AT
THE CLOSE OF THE ACCOUNTING TO RECONSIDER ANY PORTION OF ITS DECISION
AND REOPEN ANY PART OF THE CASE.  PERKINS V. FOURNIQUET, 6 HOW.  206,
208; MCGOURKEY V. TOLEDO ,& OHIO CENTRAL RY. CO., 146 U.S. 536, 544;
SIMMONS CO. V. GRIER BROS. CO., SUPRA, 90-91.  IT WAS FREE IN ITS
DISCRETION TO GRANT A REARGUMENT BASED EITHER ON ALL THE EVIDENCE THEN
OF RECORD OR ONLY THE EVIDENCE BEFORE THE COURT WHEN IT RENDERED ITS
INTERLOCUTORY DECISION, OR TO REOPEN THE CASE FOR FURTHER EVIDENCE. 

WHETHER IT SHOULD HAVE TAKEN ANY OF THESE COURSES WAS A MATTER
PRIMARILY FOR ITS DISCRETION, TO BE EXERCISED IN THE LIGHT OF VARIOUS
CONSIDERATIONS WHICH THIS COURT CANNOT PROPERLY APPRAISE WITHOUT MORE
INTIMATE KNOWLEDGE THAN IT HAS OF THE PROCEEDINGS IN A LONG AND COMPLEX
TRIAL.  AMONG THOSE CONSIDERATIONS ARE THE QUESTIONS WHETHER, AS
APPEARS TO BE THE CASE FROM SUCH PORTIONS OF THE RECORD AS HAVE BEEN
FILED IN THIS COURT OR CITED TO US BY COUNSEL, THE GOVERNMENT FAILED TO
MAKE ANY CONTENTION AS TO THE VALIDITY OR CONSTRUCTION OF CLAIM 16 IN
THE PROCEEDINGS LEADING TO THE INTERLOCUTORY DECISION; WHETHER THE
SHOWING OF NON-INFRINGEMENT WHICH IT NOW MAKES IS SUFFICIENTLY STRONG,
AND THE PUBLIC INTEREST THAT AN INVALID PATENT BE NOT SUSTAINED IS
SUFFICIENTLY GREAT, TO JUSTIFY RECONSIDERING THE DECISION AS TO CLAIM
16 DESPITE THE FAILURE OF GOVERNMENT COUNSEL TO PRESS ITS CONTENTION AT
THE PROPER TIME; WHETHER ADEQUATE CONSIDERATION OF THE QUESTION OF NON
INFRINGEMENT CAN BE HAD ON THE EXISTING RECORD, OR WHETHER ADDITIONAL
TESTIMONY SHOULD BE RECEIVED; AND WHETHER, BALANCING THE STRENGTH OR
WEAKNESS OF THE GOVERNMENT'S PRESENT SHOWING OF NON-INFRINGEMENT
AGAINST THE UNDESIRABILITY OF FURTHER PROLONGING THIS ALREADY EXTENDED
LITIGATION, THE CASE IS ONE WHICH JUSTIFIES RECONSIDERATION. 

THESE ARE ALL MATTERS REQUIRING CAREFUL CONSIDERATION BY THE TRIAL
COURT.  IN ORDER THAT THE CASE MAY RECEIVE THAT CONSIDERATION, WE
VACATE THE JUDGMENT AS TO CLAIM 16 AND REMAND THE CAUSE TO THE COURT OF
CLAIMS FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS OPINION. 

IF ON THE REMAND THE COURT SHOULD EITHER DECLINE TO RECONSIDER ITS
DECISION OF INFRINGEMENT, OR SHOULD UPON RECONSIDERATION ADHERE TO THAT
DECISION, IT SHOULD PASS UPON THE CONTENTION OF THE GOVERNMENT, URGED
HERE AND BELOW, AS TO THE MEASURE OF DAMAGES, WITH RESPECT TO WHICH THE
COURT MADE NO FINDINGS.  THE GOVERNMENT'S CONTENTION IS THAT THE
VARIABLE CAPACITY SHUNT OF THE ACCUSED DEVICES BRIDGED ALL THE
INDUCTANCE IN THE RECEIVING ANTENNA CIRCUIT, AND THAT EVEN THOUGH THOSE
DEVICES INFRINGED THEY NEVERTHELESS EMBODY AN IMPROVEMENT OVER
MARCONI'S CLAIM 16, IN WHICH ONLY THE TRANSFORMER COIL WAS BRIDGED.  IN
COMPUTING THE DAMAGES THE COURT MEASURED THEM BY 65% OF THE COST TO THE
GOVERNMENT OF THE INDUCTION COILS WHICH WOULD BE REQUIRED TO REPLACE IN
THE ACCUSED DEVICES THE ADJUSTABLE CONDENSERS AS A MEANS OF TUNING,
TAKING INTO ACCOUNT THE GREATER CONVENIENCE AND EFFICIENCY OF CONDENSER
TUNING.  THE ALLOWANCE OF ONLY 65% WAS ON THE THEORY THAT IF THE
PARTIES HAD NEGOTIATED FOR THE USE OF THE INVENTION THE PRICE WOULD
HAVE BEEN LESS THAN THE COST TO THE GOVERNMENT OF THE AVAILABLE
ALTERNATIVE MEANS OF TUNING. 

IN COMPUTING THE DAMAGES THE COURT APPARENTLY DID NOT TAKE INTO
ACCOUNT OR ATTEMPT TO APPRAISE ANY CONTRIBUTION WHICH MAY HAVE BEEN
MADE BY THE IMPROVEMENT OVER MARCONI WHICH THE GOVERNMENT ASSERTS WAS
INCLUDED IN THE ACCUSED DEVICES.  THE COURT FOUND THAT WHERE THE
CONDENSER IS CONNECTED IN SERIES WITH THE INDUCTANCE COILS IN THE
ANTENNA IT "CAN BE USED TO SHORTEN THE NATURAL RESONANT WAVE LENGTH OF
THE ANTENNA CIRCUIT BUT CANNOT LENGTHEN IT BEYOND WHAT WOULD BE THE
RESONANT WAVE LENGTH IF THE CONDENSER WERE NOT PRESENT."  ON THE OTHER
HAND, IT FOUND THAT WHEN THE CONDENSER IS CONNECTED IN PARALLEL IT
ENABLES THE PERIODICITY OF THE ANTENNA TO BE LOWERED, PERMITTING THE
RECEPTION OF LONGER WAVE-LENGTHS. 

THE COMPUTATION OF DAMAGES WAS BASED ON THE PREMISE THAT THE
ADVANTAGE TO THE GOVERNMENT RESULTING FROM THE INFRINGEMENT WAS DERIVED
FROM THE ABILITY WHICH THE ACCUSED DEVICES HAD THUS ACQUIRED TO RECEIVE
LONGER WAVE-LENGTHS.  BUT THERE WAS SUBSTANTIAL TESTIMONY THAT THE
ARRANGEMENT DISCLOSED BY MARCONI'S SPECIFICATIONS WAS IN EFFECT A
CONNECTION IN SERIES WHICH DID NOT MAKE POSSIBLE RECEPTION OF LONGER
WAVE-LENGTHS, AS DID THE ARRANGEMENT IN THE ACCUSED DEVICES.  AND THE
COURT NOWHERE FOUND THAT THE ARRANGEMENT COVERED BY MARCONI'S CLAIM 16
DID MAKE POSSIBLE SUCH RECEPTION.  THE APPROPRIATE EFFECT TO BE GIVEN
TO THIS TESTIMONY IS IMPORTANT IN THE LIGHT OF THE RECOGNIZED DOCTRINE
THAT IF A DEFENDANT HAS ADDED "NON-INFRINGING AND VALUABLE IMPROVEMENTS
WHICH HAD CONTRIBUTED TO THE MAKING OF THE PROFITS," IT IS NOT LIABLE
FOR BENEFITS RESULTING FROM SUCH IMPROVEMENTS.  WESTINGHOUSE ELECTRIC
CO. V. WAGNER MFG. CO., 225 U.S. 604, 614-15, 616-17; SHELDON V. METRO
GOLDWYN CORP., 309 U.S. 390, 402-406, AND CASES CITED.  FINDING LXIII
THAT THE GOVERNMENT WAS USING "APPARATUS COMING WITHIN THE TERMINOLOGY
OF CLAIM 16," AND FINDING 23 ON THE ACCOUNTING THAT THE ACCUSED DEVICES
"INFRINGE CLAIM 16 OF THE MARCONI PATENT," GIVE NO AID IN SOLVING THIS
PROBLEM FOR THEY ARE NOT ADDRESSED TO THE QUESTION WHETHER, ASSUMING
INFRINGEMENT, THE GOVERNMENT HAS MADE IMPROVEMENTS WHICH OF THEMSELVES
ARE NON-INFRINGING.  THAT CAN ONLY BE AFFORDED BY FINDINGS WHICH
APPRAISE THE EVIDENCE, ESTABLISH THE SCOPE OF MARCONI'S CLAIM AND THE
NATURE AND EXTENT OF THE DIFFERENCE IN FUNCTION, IF ANY, BETWEEN THE
DEVICE CLAIMED BY MARCONI AND THOSE USED BY THE GOVERNMENT, AND
DETERMINE WHETHER ANY DIFFERENCES SHOWN TO EXIST CONSTITUTE A "NON
INFRINGING IMPROVEMENT" FOR WHICH MARCONI DESERVES NO CREDIT. 

THE JUDGMENT AS TO CLAIM 16 WILL BE VACATED AND THE CAUSE REMANDED
FOR FURTHER PROCEEDINGS. 

THE FLEMING PATENT NO. 803,684. 

THE FLEMING PATENT, ENTITLED:  "INSTRUMENT FOR CONVERTING ALTERNATING
ELECTRIC CURRENTS INTO CONTINUOUS CURRENTS" WAS APPLIED FOR APRIL 19,
1905, AND GRANTED ON NOVEMBER 7, 1905 TO THE MARCONI COMPANY, AS
ASSIGNEE OF FLEMING.  ITS SPECIFICATIONS STATE THAT "THIS INVENTION
RELATES TO CERTAIN NEW AND USEFUL DEVICES FOR CONVERTING ALTERNATING
ELECTRIC CURRENTS, AND ESPECIALLY HIGH-FREQUENCY ALTERNATING ELECTRIC
CURRENTS OR ELECTRIC OSCILLATIONS, INTO CONTINUOUS ELECTRIC CURRENTS
FOR THE PURPOSE OF MAKING THEM DETECTABLE BY AND MEASURABLE WITH
ORDINARY DIRECTCURRENT INSTRUMENTS, SUCH AS A 'MIRROR-GALVANOMETER' OF
THE USUAL TYPE OR ANY ORDINARY DIRECT-CURRENT AMMETER."  FLEMING'S
DRAWINGS AND SPECIFICATIONS SHOW A COMBINATION APPARATUS BY WHICH
ALTERNATING CURRENT IMPULSES RECEIVED THROUGH AN ANTENNA CIRCUIT
CONTAINING THE PRIMARY OF A TRANSFORMER ARE INDUCED IN THE SECONDARY OF
THE TRANSFORMER.  TO ONE END OF THE SECONDARY COIL IS CONNECTED A
CARBON FILAMENT LIKE THAT OF AN INCANDESCENT ELECTRIC LAMP, WHICH IS
HEATED BY A BATTERY.  SURROUNDING, BUT NOT TOUCHING THE FILAMENT, IS A
CYLINDER OF ALUMINUM OPEN AT THE TOP AND BOTTOM, WHICH IS CONNECTED
WITH THE OTHER END OF THE SECONDARY.  THE CYLINDER AND FILAMENT ARE
ENCLOSED IN AN EVACUATED VESSEL SUCH AS AN ORDINARY ELECTRIC LAMP
BULB.  AN INDICATING INSTRUMENT OR GALVANOMETER IS SO LOCATED IN THIS
CIRCUIT AS TO RESPOND TO THE FLOW OF CURRENT IN IT.  THE SPECIFICATIONS
EXPLAIN THE OPERATION OF THIS DEVICE: 

"THIS ARRANGEMENT DESCRIBED ABOVE OPERATES AS AN ELECTRIC VALVE AND
PERMITS NEGATIVE ELECTRICITY TO FLOW FROM THE HOT CARBON B TO THE METAL
CYLINDER C, BUT NOT IN THE REVERSE DIRECTION, SO THAT THE ALTERNATIONS
INDUCED IN THE COIL K BY THE HERTZIAN WAVES RECEIVED BY THE AERIAL WIRE
N ARE RECTIFIED OR TRANSFORMED INTO A MORE OR LESS CONTINUOUS CURRENT
CAPABLE OF ACTUATING THE GALVANOMETER L BY WHICH THE SIGNALS CAN BE
READ." 

THE SPECIFICATIONS FURTHER STATE: 

"  ...  THE AERIAL WIRE N MAY BE REPLACED BY ANY CIRCUIT IN WHICH
THERE IS AN ALTERNATING ELECTROMOTIVE FORCE, WHETHER OF LOW FREQUENCY
OR OF HIGH FREQUENCY  ...  " 

"HENCE THE DEVICE MAY BE USED FOR RECTIFYING EITHER HIGH-FREQUENCY OR
LOW-FREQUENCY ALTERNATING CURRENTS OF ELECTRICAL OSCILLATIONS  ...  " 
ONLY CLAIMS 1 AND 37 OF THE PATENT ARE IN SUIT.  THEY READ AS
FOLLOWS: 

"1.  THE COMBINATION OF A VACUOUS VESSEL, TWO CONDUCTORS ADJACENT TO
BUT NOT TOUCHING EACH OTHER IN THE VESSEL, MEANS FOR HEATING ONE OF THE
CONDUCTORS, AND A CIRCUIT OUTSIDE THE VESSEL CONNECTING THE TWO
CONDUCTORS. 

"37.  AT A RECEIVING-STATION IN A SYSTEM OF WIRELESS TELEGRAPHY
EMPLOYING ELECTRICAL OSCILLATIONS OF HIGH FREQUENCY A DETECTOR
COMPRISING A VACUOUS VESSEL, TWO CONDUCTORS ADJACENT TO BUT NOT
TOUCHING EACH OTHER IN THE VESSEL, MEANS FOR HEATING ONE OF THE
CONDUCTORS, A CIRCUIT OUTSIDE OF THE VESSEL CONNECTING THE TWO
CONDUCTORS, MEANS FOR DETECTING A CONTINUOUS CURRENT IN THE CIRCUIT,
AND MEANS FOR IMPRESSING UPON THE CIRCUIT THE RECEIVED OSCILLATIONS." 

THE CURRENT APPLIED TO THE FILAMENT OR CATHODE BY THE BATTERY SETS UP
A FLOW OF ELECTRONS (NEGATIVE ELECTRIC CHARGES) FROM THE HEATED
CATHODE, WHICH ARE ATTRACTED TO THE COLD PLATE OR ANODE WHEN THE LATTER
IS POSITIVELY CHARGED.  WHEN AN ALTERNATING CURRENT IS SET UP IN THE
CIRCUIT CONTAINING THE CATHODE, ANODE, AND SECONDARY OF THE
TRANSFORMER, THE ELECTRONIC DISCHARGE FROM THE CATHODE CLOSES THE
CIRCUIT AND PERMITS A CONTINUOUS FLOW OF ELECTRICITY THROUGH IT WHEN
THE PHASE OF THE CURRENT IS SUCH THAT THE ANODE IS POSITIVELY CHARGED,
WHILE PREVENTING ANY FLOW OF CURRENT THROUGH THE TUBE WHEN THE ANODE IS
NEGATIVELY CHARGED.  THE ALTERNATING CURRENT IS THUS RECTIFIED SO AS TO
PRODUCE A CURRENT FLOWING ONLY IN ONE DIRECTION.  SEE DEFOREST RADIO
CO. V. GENERAL ELECTRIC CO., 283 U.S. 664; RADIO CORPORATION V. RADIO
LABORATORIES, 293 U.S. 1; DETROLA RADIO CORP. V. HAZELTINE CORPORATION,
313 U.S. 259. 

CLAIMS 1 AND 37 OF THE FLEMING PATENT ARE IDENTICAL IN THEIR
STRUCTURAL ELEMENTS.  BOTH CLAIM THE VACUUM TUBE, AND THE TWO
ELECTRODES CONNECTED BY A CIRCUIT OUTSIDE THE TUBE, ONE ELEMENT BEING
HEATED.  THE CLAIMS DIFFER ONLY IN THAT CLAIM 37 INCLUDES "MEANS FOR
DETECTING" THE CONTINUOUS OR DIRECT CURRENT IN THE ANODE-CATHODE
CIRCUIT, AND "MEANS FOR IMPRESSING UPON THE CIRCUIT THE RECEIVED
OSCILLATIONS" FROM THE TRANSFORMER COIL OF THE ANTENNA CIRCUIT. 

IN THE PATENT AS ORIGINALLY ISSUED THERE HAD BEEN ANOTHER DIFFERENCE
BETWEEN THE TWO CLAIMS.  CLAIM 37 DESCRIBES THE TUBE AS BEING USED "IN
A SYSTEM OF WIRELESS TELEGRAPHY EMPLOYING ELECTRICAL OSCILLATIONS OF
HIGH FREQUENCY."  NO SUCH LIMITATION WAS PLACED ON CLAIM 1 AS
ORIGINALLY CLAIMED, AND THE SPECIFICATIONS ALREADY QUOTED PLAINLY
CONTEMPLATED THE USE OF THE CLAIMED DEVICE WITH LOW AS WELL AS HIGH
FREQUENCY CURRENTS.  THIS DISTINCTION WAS ELIMINATED BY A DISCLAIMER
FILED BY THE MARCONI COMPANY NOVEMBER 17, 1915, RESTRICTING THE
COMBINATION OF THE ELEMENTS OF CLAIM 1 TO A USE "IN CONNECTION WITH
HIGH FREQUENCY ALTERNATING ELECTRIC CURRENTS OR ELECTRIC OSCILLATIONS
OF THE ORDER EMPLOYED IN HERTZIAN WAVE TRANSMISSION," AND DELETING
CERTAIN REFERENCES TO LOW FREQUENCIES IN THE SPECIFICATIONS.  THE
RESULT OF THE DISCLAIMER WAS TO LIMIT BOTH CLAIMS TO THE USE OF THE
PATENTED DEVICE FOR RECTIFYING HIGH FREQUENCY ALTERNATING WAVES OR
CURRENTS SUCH AS WERE EMPLOYED IN WIRELESS TELEGRAPHY. 

THE EARLIEST DATE ASSERTED FOR FLEMING'S INVENTION, AS LIMITED BY THE
DISCLAIMER, IS NOVEMBER 16, 1904.  TWENTY YEARS BEFORE, ON OCTOBER 21,
1884, EDISON HAD SECURED UNITED STATES PATENT NO. 307,031.  IN HIS
SPECIFICATIONS HE STATED: 

"I HAVE DISCOVERED THAT IF A CONDUCTING SUBSTANCE IS INTERPOSED
ANYWHERE IN THE VACUOUS SPACE WITHIN THE GLOBE OF AN INCANDESCENT
ELECTRIC LAMP, AND SAID CONDUCTING SUBSTANCE IS CONNECTED OUTSIDE OF
THE LAMP WITH ONE TERMINAL, PREFERABLY THE POSITIVE ONE, OF THE
INCANDESCENT CONDUCTOR, A PORTION OF THE CURRENT WILL, WHEN THE LAMP IS
IN OPERATION, PASS THROUGH THE SHUNT-CIRCUIT THUS FORMED, WHICH SHUNT
INCLUDES A PORTION OF THE VACUOUS SPACE WITHIN THE LAMP.  THIS CURRENT
I HAVE FOUND TO BE PROPORTIONAL TO THE DEGREE OF INCANDESCENCE OF THE
CONDUCTOR OR CANDLEPOWER OF THE LAMP."  EDISON PROPOSED TO USE THIS
DISCOVERY AS A MEANS OF "INDICATING, VARIATIONS IN THE ELECTRO-MOTIVE
FORCE IN AN ELECTRIC CIRCUIT," BY CONNECTING A LAMP THUS EQUIPPED AT A
POINT WHERE THE CURRENT WAS TO BE MEASURED.  THE DRAWINGS OF HIS PATENT
SHOW AN ELECTRIC CIRCUIT, INCLUDING A FILAMENT (CATHODE) AND A PLATE
(ANODE) BOTH "IN THE VACUOUS SPACE WITHIN THE GLOBE" - AN ELECTRIC
LIGHT BULB.  THE SHUNT-CIRCUIT EXTENDS FROM THE PLATE THROUGH A
GALVANOMETER TO THE FILAMENT.  HIS SPECIFICATIONS DISCLOSE THAT THE
VACUOUS SPACE WITHIN THE GLOBE IS A CONDUCTOR OF CURRENT BETWEEN THE
PLATE ANODE AND THE FILAMENT; THAT THE STRENGTH OF THE CURRENT IN THE
FILAMENT-TO-PLATE CIRCUIT THROUGH THE VACUUM DEPENDS UPON THE DEGREE OF
INCANDESCENCE AT THE FILAMENT; AND THAT THE PLATE ANODE IS PREFERABLY
CONNECTED TO THE POSITIVE SIDE OF THE CURRENT SUPPLY.  THE CLAIMS OF
THE PATENT ARE FOR THE COMBINATION OF THE FILAMENT, PLATE AND
INTERCONNECTING CIRCUIT, INCLUDING THE GALVANOMETER.  CLAIM 5, A
TYPICAL CLAIM, READS AS FOLLOWS: 

"THE COMBINATION, WITH AN INCANDESCENT ELECTRIC LAMP, OF A CIRCUIT
HAVING ONE TERMINAL IN THE VACUOUS SPACE WITHIN THE GLOBE OF SAID LAMP,
AND THE OTHER CONNECTED WITH ONE SIDE OF THE LAMP-CIRCUIT, AND
ELECTRICALLY CONTROLLED OR OPERATED APPARATUS IN SAID CIRCUIT,
SUBSTANTIALLY AS SET FORTH." 

THE STRUCTURE DISCLOSED IN FLEMING'S CLAIMS 1 AND 37 THUS DIFFERED IN
NO MATERIAL RESPECT FROM THAT DISCLOSED BY EDISON.  SINCE FLEMING'S
ORIGINAL CLAIM 1 IS MERELY FOR THE STRUCTURE, IT READS DIRECTLY ON
EDISON'S CLAIM 5 AND COULD NOT BE TAKEN AS INVENTION OVER IT. 

FLEMING USED THIS STRUCTURE FOR A DIFFERENT PURPOSE THAN EDISON. 
EDISON DISCLOSED THAT HIS DEVICE OPERATED TO PASS A CURRENT ACROSS THE
VACUOUS SPACE WITHIN THE TUBE BETWEEN FILAMENT AND PLATE.  HE USED THIS
CURRENT AS A MEANS OF MEASURING THE CURRENT PASSING THROUGH THE
FILAMENT CIRCUIT.  FLEMING, IN HIS SPECIFICATIONS, DISCLOSED THE USE OF
HIS TUBE AS A RECTIFIER OF ALTERNATING CURRENTS, AND IN CLAIM 37 HE
CLAIMED THE USE OF THAT APPARATUS AS A MEANS OF RECTIFYING ALTERNATING
CURRENTS OF RADIO FREQUENCY.  BUT IN THIS USE OF THE TUBE TO CONVERT
ALTERNATING INTO DIRECT CURRENTS THERE WAS NO NOVELTY FOR IT HAD BEEN
DISCLOSED BY OTHERS AND BY FLEMING HIMSELF LONG BEFORE FLEMING'S
INVENTION DATE. 

ON JANUARY 9, 1890, TEN YEARS BEFORE FLEMING FILED HIS APPLICATION,
HE STATED IN A PAPER READ BEFORE THE ROYAL SOCIETY OF LONDON: 

"IT HAS BEEN KNOWN FOR SOME TIME THAT IF A PLATINUM PLATE OR WIRE IS
SEALED THROUGH THE GLASS BULB OF AN ORDINARY CARBON FILAMENT
INCANDESCENT LAMP, THIS METALLIC PLATE BEING QUITE OUT OF CONTACT WITH
THE CARBON CONDUCTOR, A SENSITIVE GALVANOMETER CONNECTED BETWEEN THIS
INSULATED METAL PLATE ENCLOSED IN THE VACUUM AND THE EXTERNAL POSITIVE
ELECTRODE OF THE LAMP INDICATES A CURRENT OF SOME MILLIAMPERES PASSING
THROUGH IT WHEN THE LAMP IS SET IN ACTION, BUT THE SAME INSTRUMENT WHEN
CONNECTED BETWEEN THE NEGATIVE ELECTRODE OF THE LAMP AND THE INSULATED
METAL PLATE INDICATES NO SENSIBLE CURRENT.  THIS PHENOMENON IN CARBON
INCANDESCENCE LAMPS WAS FIRST OBSERVED BY MR. EDISON, IN 1884, AND
FURTHER EXAMINED BY MR. W. H. PREECE, IN 1885."  PROCEEDINGS OF THE
ROYAL SOCIETY OF LONDON, VOL. 47, PP. 118-9. 

FLEMING'S 1890 PAPER FURTHER POINTED OUT THAT THE VACUOUS SPACE
"POSSESSES A CURIOUS UNILATERAL CONDUCTIVITY"; THAT IS, IT PERMITS
CURRENT TO "FLOW ACROSS THE VACUOUS SPACE FROM THE HOT CARBON (CATHODE)
TO THE COOLER METAL PLATE (ANODE), BUT NOT IN THE REVERSE DIRECTION." 
ID. 122.  HE NOTED THE ABILITY OF THE TUBE TO ACT AS A RECTIFIER OF
ALTERNATING CURRENT, SAYING: 

"WHEN THE LAMP IS ACTUATED BY AN ALTERNATING CURRENT A CONTINUOUS
CURRENT IS FOUND FLOWING THROUGH A GALVANOMETER, CONNECTED BETWEEN THE
INSULATED PLATE AND EITHER TERMINAL OF THE LAMP.  THE DIRECTION OF THE
CURRENT THROUGH THE GALVANOMETER IS SUCH AS TO SHOW THAT NEGATIVE
ELECTRICITY IS FLOWING FROM THE PLATE THROUGH THE GALVANOMETER TO THE
LAMP TERMINAL."  ID. 120. 

FLEMING'S PAPER THUS NOTED, CONTRARY TO THE THEN POPULAR CONCEPTION,
THAT IT IS NEGATIVE ELECTRICITY WHICH FLOWS FROM CATHODE TO ANODE, BUT
HE EMPHASIZED THAT EVEN THIS HAD BEEN A PART OF GENERAL SCIENTIFIC
KNOWLEDGE, AS FOLLOWS: 

"THE EFFECT OF HEATING THE NEGATIVE ELECTRODE IN FACILITATING
DISCHARGE THROUGH VACUOUS SPACES HAS PREVIOUSLY BEEN DESCRIBED BY W.
HITTORF ('ANNALEN DER PHYSIK UND CHEMIE,' VOL. 21, 1884, P. 90-139),
AND IT IS ABUNDANTLY CONFIRMED BY THE ABOVE EXPERIMENTS.  WE MAY SAY
THAT A VACUOUS SPACE BOUNDED BY TWO ELECTRODES - ONE INCANDESCENT, AND
THE OTHER COLD - POSSESSES A UNILATERAL CONDUCTIVITY FOR ELECTRIC
DISCHARGE WHEN THESE ELECTRODES ARE WITHIN A DISTANCE OF THE MEAN FREE
PATH OF PROJECTION OF THE MOLECULES WHICH THE IMPRESSED ELECTROMOTIVE
FORCE CAN DETACH AND SEND OFF FROM THE HOT NEGATIVE ELECTRODE. 

"THIS UNILATERAL CONDUCTIVITY OF VACUOUS SPACES HAVING UNEQUALLY
HEATED ELECTRODES HAS BEEN EXAMINED BY MM. ELSTER AND GEITEL (SEE
'WIEDEMANN'S ANNALEN,' VOL. 38, 1889, P. 40), AND ALSO BY GOLDSTEIN
('WIED.  ANN.,' VOL. 24, 1885, P. 83), WHO IN EXPERIMENTS OF VARIOUS
KINDS HAVE DEMONSTRATED THAT WHEN AN ELECTRIC DISCHARGE ACROSS A
VACUOUS SPACE TAKES PLACE FROM A CARBON CONDUCTOR TO ANOTHER ELECTRODE,
THE DISCHARGE TAKES PLACE AT LOWER ELECTROMOTIVE FORCE WHEN THE CARBON
CONDUCTOR IS THE NEGATIVE ELECTRODE AND IS RENDERED INCANDESCENT."  ID.
125-6. 

FLEMING'S REFERENCE IN THIS PUBLICATION TO THE UNILATERAL
CONDUCTIVITY OF THE VACUOUS SPACE BETWEEN CATHODE AND ANODE, AND THE
CONSEQUENT ABILITY OF THE TWO TO DERIVE A CONTINUOUS UNIDIRECTIONAL
CURRENT FROM AN ALTERNATING CURRENT WAS A RECOGNITION THAT THE EDISON
TUBE EMBODYING THE STRUCTURE DESCRIBED COULD BE USED AS A RECTIFIER OF
ALTERNATING CURRENT.  THIS KNOWLEDGE, DISCLOSED BY PUBLICATION MORE
THAN TWO YEARS BEFORE FLEMING'S APPLICATION, WAS A BAR TO ANY CLAIM FOR
A PATENT FOR AN INVENTION EMBODYING THE PUBLISHED DISCLOSURE.  R.S.
SECS. 4886, 4920; 35 U.S.C. SECS. 31, 69.  WAGNER V. MECCANO LTD., 246
F. 603, 607; CF. MUNCIE GEAR CO. V. OUTBOARD CO., SUPRA, 766. 

IT IS UNNECESSARY TO DECIDE WHETHER FLEMING'S USE OF THE EDISON
DEVICE FOR THE PURPOSE OF RECTIFYING HIGH FREQUENCY HERTZIAN WAVES, AS
DISTINGUISHED FROM LOW FREQUENCY WAVES, INVOLVED INVENTION OVER THE
PRIOR ART, OR WHETHER THE COURT BELOW RIGHTLY HELD THAT THE DEVICES
USED BY THE GOVERNMENT DID NOT INFRINGE THE CLAIMS SUED UPON, FOR WE
ARE OF THE OPINION THAT THE COURT WAS RIGHT IN HOLDING THAT FLEMING'S
PATENT WAS RENDERED INVALID BY AN IMPROPER DISCLAIMER.  IT IS PLAIN
THAT FLEMING'S ORIGINAL CLAIM 1, SO FAR AS APPLICABLE TO USE WITH LOW
FREQUENCY ALTERNATING CURRENTS, INVOLVED NOTHING NEW, AS FLEMING
HIMSELF MUST HAVE KNOWN IN VIEW OF HIS 1890 PAPER, AND AS HE RECOGNIZED
BY HIS DISCLAIMER IN 1915, MADE TWENTY-FIVE YEARS AFTER HIS PAPER WAS
PUBLISHED AND TEN YEARS AFTER HIS PATENT HAD BEEN ALLOWED.  ITS
INVALIDITY WOULD DEFEAT THE ENTIRE PATENT UNLESS THE INVALID PORTION
HAD BEEN CLAIMED "THROUGH INADVERTENCE, ACCIDENT, OR MISTAKE, AND
WITHOUT ANY FRAUDULENT OR DECEPTIVE INTENTION," AND WAS ALSO DISCLAIMED
WITHOUT "UNREASONABLE" NEGLECT OR DELAY.  R.S. SECS. 4917, 4922; 35
U.S.C. SECS. 65, 71; ENSTEN V. SIMON ASCHER & CO., 282 U.S. 445, 452;
ALTOONA THEATRES V. TRI-ERGON CORP., 294 U.S. 477, 493; MAYTAG CO. V.
HURLEY CO., 307 U.S. 243. 

WE NEED NOT STOP TO INQUIRE WHETHER, AS THE GOVERNMENT CONTENDS, THE
SUBJECT MATTER OF THE DISCLAIMER WAS IMPROPER AS IN EFFECT ADDING A NEW
ELEMENT TO THE CLAIM.  SEE MILCOR STEEL CO. V. FULLER CO., 316 U.S.
143, 147-8.  FOR WE THINK THAT THE COURT BELOW WAS CORRECT IN HOLDING
THAT THE FLEMING PATENT WAS INVALID BECAUSE FLEMING'S CLAIM FOR "MORE
THAN HE HAD INVENTED" WAS NOT INADVERTENT, AND HIS DELAY IN MAKING THE
DISCLAIMER WAS "UNREASONABLE."  BOTH OF THESE ARE QUESTIONS OF FACT,
BUT SINCE THE COURT IN ITS OPINION PLAINLY STATES ITS CONCLUSIONS AS TO
THEM, AND THOSE CONCLUSIONS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE, ITS
OMISSION TO MAKE FORMAL FINDINGS OF FACT IS IMMATERIAL.  ACT OF MAY 22,
1939, 53 STAT. 752, 28 U.S.C. SEC. 288(B); CF. AMERICAN PROPELLER CO.
V. UNITED STATES, 300 U.S. 475, 479-80; GREAT LAKES DREDGE & DOCK CO.
V. HUFFMAN, 319 U.S. 293. 

THE PURPOSE OF THE RULE THAT A PATENT IS INVALID IN ITS ENTIRETY IF
ANY PART OF IT BE INVALID IS THE PROTECTION OF THE PUBLIC FROM THE
THREAT OF AN INVALID PATENT, AND THE PURPOSE OF THE DISCLAIMER STATUTE
IS TO ENABLE THE PATENTEE TO RELIEVE HIMSELF FROM THE CONSEQUENCES OF
MAKING AN INVALID CLAIM IF HE IS ABLE TO SHOW BOTH THAT THE INVALID
CLAIM WAS INADVERTENT AND THAT THE DISCLAIMER WAS MADE WITHOUT
UNREASONABLE NEGLECT OR DELAY.  ENSTEN V. SIMON ASCHER & CO., SUPRA.
HERE THE PATENTEE HAS SUSTAINED NEITHER BURDEN. 

FLEMING'S PAPER OF 1890 SHOWED HIS OWN RECOGNITION THAT HIS CLAIM OF
USE OF HIS PATENT FOR LOW FREQUENCY CURRENTS WAS ANTICIPATED BY EDISON
AND OTHERS.  IT TAXES CREDULITY TO SUPPOSE, IN THE FACE OF THIS
PUBLICATION, THAT FLEMING'S CLAIM FOR USE OF THE EDISON TUBE WITH LOW
FREQUENCY CURRENTS WAS MADE "THROUGH INADVERTENCE, ACCIDENT OR
MISTAKE," WHICH IS PREREQUISITE TO A LAWFUL DISCLAIMER.  NO EXPLANATION
OR EXCUSE IS FORTHCOMING FOR HIS CLAIM OF INVENTION OF A DEVICE WHICH
HE HAD SO OFTEN DEMONSTRATED TO BE OLD IN THE ART, AND WHICH HE HAD
SPECIFICALLY AND CONSISTENTLY ATTRIBUTED TO EDISON.  NOR IS ANY
EXPLANATION OFFERED FOR THE DELAY OF THE PATENTEE - THE MARCONI COMPANY
- IN WAITING TEN YEARS TO DISCLAIM THE USE OF THE DEVICE WITH LOW
FREQUENCY CURRENTS AND TO RESTRICT IT TO A USE WITH HIGH FREQUENCY
HERTZIAN WAVES WHICH EDISON HAD PLAINLY FORESHADOWED BUT NOT CLAIMED. 
FOR TEN YEARS THE FLEMING PATENT WAS HELD OUT TO THE PUBLIC AS A
MONOPOLY OF ALL ITS CLAIMED FEATURES.  THAT WAS TOO LONG IN THE ABSENCE
OF ANY EXPLANATION OR EXCUSE FOR THE DELAY, AND HENCE IN THIS CASE WAS
LONG ENOUGH TO INVALIDATE THE PATENT.  THE CONCLUSION OF THE COURT OF
CLAIMS NOT ONLY HAS SUPPORT IN THE EVIDENCE, BUT WE CAN HARDLY SEE HOW
ON THIS RECORD ANY OTHER COULD HAVE BEEN REACHED.    THE MARCONI
COMPANY'S CONTENTION THAT IT NOWHERE APPEARS THAT FLEMING WAS NOT THE
FIRST INVENTOR OF THE USE OF THE PATENTED DEVICE TO RECTIFY HIGH
FREQUENCY ALTERNATING CURRENTS IS IRRELEVANT TO THE QUESTION OF THE
SUFFICIENCY OF THE DISCLAIMER.  THE DISCLAIMER ITSELF IS AN ASSERTION
THAT THE CLAIMED USE OF THE INVENTION WITH LOW FREQUENCIES WAS NOT THE
INVENTION OF THE PATENTEE, WHOSE RIGHTS WERE DERIVED WHOLLY FROM
FLEMING.  THIS IMPROPER CLAIM FOR SOMETHING NOT THE INVENTION OF THE
PATENTEE RENDERED THE WHOLE PATENT INVALID UNLESS SAVED BY A TIMELY
DISCLAIMER WHICH WAS NOT MADE. 

THE MARCONI COMPANY ALSO ASSERTS THAT, AS IT IS SUING AS ASSIGNEE OF
THE PATENTEE, IT IS UNAFFECTED BY THE PROVISIONS OF THE DISCLAIMER
STATUTES, WHICH IT CONSTRUES AS RESTRICTING TO THE "PATENTEE" THE
CONSEQUENCES OF UNREASONABLE DELAY IN MAKING THE DISCLAIMER AND AS
EXEMPTING THE ASSIGNEE FROM THOSE CONSEQUENCES BY THE SENTENCE "BUT NO
PATENTEE SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION IF HE HAS
UNREASONABLY NEGLECTED OR DELAYED TO ENTER A DISCLAIMER."  35 U.S.C.
71.  AS THE COURT BELOW FOUND, THE MARCONI COMPANY WAS ITSELF THE
PATENTEE TO WHOM THE PATENT WAS ISSUED ON THE ASSIGNMENT OF FLEMING'S
APPLICATION IN CONFORMITY TO 35 U.S.C. SEC. 44.  THE RIGHT GIVEN BY
SEC. 71 TO THE PATENTEE OR HIS ASSIGNEES TO SUE FOR INFRINGEMENT UPON A
PROPER DISCLAIMER OBVIOUSLY DOES NOT RELIEVE THE PATENTEE FROM THE
CONSEQUENCES OF HIS FAILURE TO COMPLY WITH THE STATUTE BECAUSE HE
ACQUIRED HIS PATENT UNDER AN ASSIGNMENT OF THE APPLICATION.  ALTOONA
THEATRES V. TRI-ERGON CORP., SUPRA; MAYTAG CO. V. HURLEY CO., SUPRA;
FRANCE MFG. CO. V. JEFFERSON ELECTRIC CO., 106 F.2D 605, 610.  SUCH A
CONTENTION IS NOT SUPPORTED BY THE WORDS OF THE STATUTE AND IF ALLOWED
WOULD PERMIT THE NULLIFICATION OF THE DISCLAIMER STATUTE BY THE
EXPEDIENT OF AN ASSIGNMENT OF THE APPLICATION.  WE NEED NOT CONSIDER
WHETHER ONE WHO HAS TAKEN AN ASSIGNMENT OF A PATENT AFTER ITS ISSUANCE
WOULD HAVE ANY GREATER RIGHTS THAN HIS ASSIGNOR IN THE EVENT OF THE
LATTER'S UNDUE DELAY IN FILING A DISCLAIMER.  COMPARE APEX ELECTRICAL
MFG. CO. V. MAYTAG CO., 122 F.2D 182, 189. 

THE JUDGMENT IN NO. 373 IS VACATED AND THE CAUSE REMANDED TO THE
COURT OF CLAIMS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION. 

THE JUDGMENT IN NO. 369 IS AFFIRMED.  SO ORDERED. 

FN1  ON NOVEMBER 20, 1919, THE MARCONI COMPANY ASSIGNED TO THE RADIO
CORPORATION OF AMERICA ALL OF ITS ASSETS, INCLUDING THE PATENTS HERE IN
SUIT, BUT RESERVED, AND AGREED TO PROSECUTE, THE PRESENT CLAIMS AGAINST
THE UNITED STATES, ON WHICH IT HAD INSTITUTED SUIT ON JULY 29, 1916. 

FN2  SEE MARCONI WIRELESS TEL. CO. V. NATIONAL ELECTRIC SIGNALLING
CO., 213 F. 815, 825, 829-31; ENCYCLOPEDIA BRITANNICA (14TH ED.)  VOL. 
14, P. 869; DUNLAP, MARCONI, THE MAN AND HIS WIRELESS; JACOT AND
COLLIER, MARCONI - MASTER OF SPACE; VYVYAN, WIRELESS OVER THIRTY YEARS;
FLEMING, ELECTRIC WAVE TELEGRAPHY, 426-443. 

MARCONI WAS GRANTED EIGHT OTHER UNITED STATES PATENTS FOR WIRELESS
APPARATUS ON APPLICATIONS FILED BETWEEN THE FILING DATES OF NOS.
586,193 AND 763,772.  THEY ARE NOS. 624,516, 627,650, 647,007, 647,008,
647,009, 650,109, 650,110, 668,315. 

FN3  CAPACITY IS THE PROPERTY OF AN ELECTRICAL CIRCUIT WHICH ENABLES
IT TO RECEIVE AND STORE AN ELECTRICAL CHARGE WHEN A VOLTAGE IS APPLIED
TO IT, AND TO RELEASE THAT CHARGE AS THE APPLIED VOLTAGE IS WITHDRAWN,
THEREBY CAUSING A CURRENT TO FLOW IN THE CIRCUIT.  ALTHOUGH ANY
CONDUCTOR OF ELECTRICITY HAS CAPACITY TO SOME DEGREE, THAT PROPERTY IS
SUBSTANTIALLY ENHANCED IN A CIRCUIT BY THE USE OF A CONDENSER,
CONSISTING OF TWO OR MORE METAL PLATES SEPARATED BY A NON-CONDUCTOR,
SUCH THAT WHEN A VOLTAGE IS APPLIED TO THE CIRCUIT ONE PLATE WILL
BECOME POSITIVELY AND THE OTHER NEGATIVELY CHARGED. 

SELF-INDUCTANCE IS THE PROPERTY OF A CIRCUIT BY WHICH, WHEN THE
AMOUNT OR DIRECTION OF THE CURRENT PASSING THROUGH IT IS CHANGED, THE
MAGNETIC STRESSES CREATED INDUCE A VOLTAGE OPPOSED TO THE CHANGE. 
ALTHOUGH ANY CONDUCTOR HAS SELF-INDUCTANCE TO SOME DEGREE, THAT
PROPERTY IS MOST MARKED IN A COIL. 

SEE GENERALLY ALBERT, ELECTRICAL FUNDAMENTALS OF COMMUNICATION, CHS. 
V, VI, VII, AND IX; TERMAN, RADIO ENGINEERING, CHS.  II AND III;
MORECROFT, PRINCIPLES OF RADIO COMMUNICATION, CHS.  I, II, III; LAUER
AND BROWN, RADIO ENGINEERING PRINCIPLES, CHS.  I AND II. 

FN4  A COHERER WAS A DEVICE DISCLOSED BY BRANLY AS EARLY AS 1891.  IT
WAS USED BY LODGE IN EXPERIMENTS DESCRIBED IN THE LONDON ELECTRICIAN
FOR JUNE 15, 1894, P. 189, AND WAS IN COMMON USE THEREAFTER AS A
DETECTOR OF RADIO WAVES UNTIL REPLACED BY THE CRYSTAL AND THE
CATHODEANODE TUBE.  THE MOST COMMON FORM CONSISTED OF A TUBE CONTAINING
METAL FILINGS WHICH, IN THEIR NORMAL STATE, WERE A NON-CONDUCTOR.  WHEN
PLACED IN A CIRCUIT THROUGH WHICH HIGH FREQUENCY OSCILLATIONS PASSED,
THE FILINGS ALIGNED THEMSELVES IN A CONTINUOUS STREAM THROUGH WHICH THE
LOW FREQUENCY ELECTRICAL CURRENT OPERATING A KEY OR OTHER SIGNALLING
DEVICE COULD PASS.  BY MEANS OF A DEVICE WHICH TAPPED THE SIDES OF THE
TUBE, THE STREAM OF FILINGS WAS BROKEN WHEN THE HIGH-FREQUENCY
OSCILLATIONS CEASED.  THUS THE COHERER WAS A SENSITIVE DEVICE BY WHICH
WEAK, HIGH-FREQUENCY SIGNALS COULD BE MADE TO ACTUATE A LOW-FREQUENCY
CURRENT OF SUFFICIENT POWER TO OPERATE A TELEGRAPHIC KEY OR OTHER
DEVICE PRODUCING A VISIBLE OR AUDIBLE SIGNAL. 

FN5  OF THE CLAIMS IN SUIT IN NO. 369, CLAIMS 10 AND 20 COVER THE
FOUR-CIRCUIT SYSTEM, WHILE CLAIMS 1, 3, 6, 8, 11 AND 12 COVER THE TWO
TRANSMITTER CIRCUITS AND CLAIMS 2, 13, 14, 17, 18 AND 19 COVER THE TWO
RECEIVER CIRCUITS.  CLAIM 10 MERELY PROVIDES THAT THE FOUR CIRCUITS BE
IN RESONANCE WITH EACH OTHER AND HENCE DOES NOT PRESCRIBE MEANS OF
ADJUSTING THE TUNING.  CLAIM 11 LIKEWISE PRESCRIBES NO MEANS OF
ADJUSTMENT.  THE OTHER CLAIMS PROVIDE MEANS OF ADJUSTMENT, EITHER A
"VARIABLE INDUCTANCE" (CLAIMS 1, 2, 3, 8, 12, 13, 18, AND 19) OR MORE
GENERALLY "MEANS" FOR ADJUSTING THE PERIOD OF THE CIRCUITS (CLAIMS 3,
6, 14 AND 17).  SOME OF THE CLAIMS MERELY PROVIDE MEANS OF ADJUSTING
THE TUNING OF THE ANTENNA CIRCUIT (CLAIMS 1, 2, 8, 12, AND 13) AND
HENCE DO NOT REQUIRE THAT THE CLOSED CIRCUITS BE TUNED.  OTHERS EITHER
SPECIFICALLY PRESCRIBE THE ADJUSTABLE TUNING OF BOTH CIRCUITS AT
TRANSMITTER (CLAIMS 3, 6) OR RECEIVER (CLAIMS 18 AND 19) OR BOTH (CLAIM
20) OR ELSE PRESCRIBE "MEANS FOR ADJUSTING THE TWO TRANSFORMER-CIRCUITS
IN ELECTRICAL RESONANCE WITH EACH OTHER, SUBSTANTIALLY AS DESCRIBED"
(CLAIMS 14 AND 17). 

FN6  A DYNAMICAL THEORY OF THE ELECTROMAGNETIC FIELD (1864), 155
PHILOSOPHICAL TRANSACTIONS OF THE ROYAL SOCIETY 459; 1 SCIENTIFIC
PAPERS OF JAMES CLERK MAXWELL 526. 

FN7  SEE THE LONDON ELECTRICIAN FOR SEPTEMBER 21, 1888, P. 628. 

EBERT, IN THE LONDON ELECTRICIAN FOR JULY 6, 1894, P. 333, LIKEWISE
POINTED OUT THAT HERTZ'S RECEIVERS ARE "SO ARRANGED THAT THEY SHOW THE
MAXIMUM RESONANT EFFECT WITH A GIVEN EXCITER; THEY ARE 'ELECTRICALLY
TUNED.'" 

FN8  DE TUNZELMANN SHOWS THAT HERTZ CLEARLY UNDERSTOOD THE PRINCIPLES
OF ELECTRICAL RESONANCE.  SOME OF HIS EARLY EXPERIMENTS WERE DESIGNED
TO DETERMINE WHETHER PRINCIPLES OF RESONANCE WERE APPLICABLE TO HIGH
FREQUENCY ELECTRICAL CIRCUITS.  FROM THEM HERTZ CONCLUDED THAT "AN
OSCILLATORY CURRENT OF DEFINITE PERIOD WOULD, OTHER CONDITIONS BEING
THE SAME, EXERT A MUCH GREATER INDUCTIVE EFFECT UPON ONE OF EQUAL
PERIOD THAN UPON ONE DIFFERING EVEN SLIGHTLY FROM IT."  ID. P. 626. 
HERTZ KNEW THAT THE FREQUENCY TO WHICH A CIRCUIT WAS RESONANT WAS A
FUNCTION OF THE SQUARE ROOT OF THE PRODUCT OF THE SELF-INDUCTANCE AND
CAPACITY IN THE CIRCUIT AND BY A FORMULA SIMILAR TO THAT NOW USED HE
CALCULATED THE APPROXIMATE FREQUENCY OF THE OSCILLATIONS PRODUCED BY
HIS TRANSMITTER.  ID., SEPTEMBER 28, 1888, 664-5. 

FN9  FORTNIGHTLY REVIEW, NO. 101, FEBRUARY, 1892, 173, 174-5. 

FN10  MARTIN, INVENTIONS, RESEARCHES AND WRITINGS OF NIKOLA TESLA,
PP. 346-8. 

FN11  TESLA'S SPECIFICATIONS STATE THAT THE CURRENT SHOULD PREFERABLY
BE "OF VERY CONSIDERABLE FREQUENCY."  IN DESCRIBING APPARATUS USED
EXPERIMENTALLY BY HIM, THE SPECIFICATIONS STATE THAT THE OSCILLATIONS
ARE GENERATED IN THE CHARGING CIRCUIT BY THE PERIODIC DISCHARGE OF A
CONDENSER BY MEANS OF "A MECHANICALLY OPERATED BREAK," A MEANS WHOSE
EFFECTS ARE SIMILAR TO THOSE OF THE SPARK GAP GENERALLY USED AT THIS
PERIOD IN THE RADIO ART. HE FURTHER STATES THAT THE INDUCTANCE OF THE
CHARGING CIRCUIT IS SO CALCULATED THAT THE "PRIMARY CIRCUIT VIBRATES
GENERALLY ACCORDING TO ADJUSTMENT, FROM TWO HUNDRED AND THIRTY THOUSAND
TO TWO HUNDRED AND FIFTY THOUSAND TIMES PER SECOND."  THE RANGE OF
RADIO FREQUENCIES IN USE IN 1917 WAS SAID BY A WITNESS FOR THE
PLAINTIFF TO EXTEND FROM 30,000 TO 1,500,000 CYCLES PER SECOND.  THE
RANGE OF FREQUENCIES ALLOCATED FOR RADIO USE BY THE INTERNATIONAL
TELECOMMUNICATION CONVENTION, PROCLAIMED JUNE 27, 1934, 49 STAT. 2391,
2459, IS FROM 10 TO 60,000 KILOCYCLES (10,000 TO 60,000,000 CYCLES) PER
SECOND, AND THE SPECTRUM OF WAVES OVER WHICH THE FEDERAL COMMUNICATIONS
COMMISSION CURRENTLY EXERCISES JURISDICTION EXTENDS FROM 10 TO 500,000
KILOCYCLES.  CODE OF FEDERAL REGULATIONS, TITLE 47, CH. I, SEC. 2.71. 
THUS TESLA'S APPARATUS WAS INTENDED TO OPERATE AT RADIO FREQUENCIES. 

FN12  MARCONI'S PATENT NO. 627,650, OF JUNE 27, 1899, SIMILARLY
SHOWED A TWO-CIRCUIT RECEIVING SYSTEM, IN WHICH THE COHERER WAS PLACED
IN A CLOSED CIRCUIT WHICH WAS INDUCTIVELY COUPLED WITH A TUNED ANTENNA
CIRCUIT.  THE COURT OF CLAIMS FOUND, HOWEVER, THAT THIS PATENT DID NOT
CLEARLY DISCLOSE THE DESIRABILITY OF TUNING BOTH CIRCUITS. 

FN13  THAT THE CLOSED CIRCUIT WAS INTENDED TO BE A "PERSISTENT
OSCILLATOR" IS ALSO BROUGHT OUT BY STONE'S EMPHASIS ON "LOOSE
COUPLING."  STONE'S APPLICATION EXPLAINED IN DETAIL THE FACT THAT WHEN
TWO CIRCUITS ARE INDUCTIVELY COUPLED TOGETHER THERE NORMALLY RESULT
"TWO DEGREES OF FREEDOM," THAT IS TO SAY, THE SUPERPOSITION OF TWO
FREQUENCIES IN THE SAME CIRCUIT BECAUSE OF THE EFFECT ON EACH OF THE
MAGNETIC LINES OF FORCE SET UP BY THE OTHER.  HE DISCUSSED IN DETAIL
METHODS OF ELIMINATING THIS SUPERPOSITION, WHICH INTERFERED WITH
ACCURATE SELECTIVITY OF TUNING, BY SO CONSTRUCTING HIS CIRCUITS AS TO
BE "LOOSELY COUPLED."  THIS HE ACHIEVED BY INCLUDING IN THE CLOSED
CIRCUITS A LARGE INDUCTANCE COIL, WHICH HAD THE EFFECT OF "SWAMPING"
THE UNDESIRABLE EFFECT OF THE LINES OF FORCE SET UP IN THE PRIMARY OF
THE TRANSFORMER BY THE CURRENT INDUCED IN THE SECONDARY.  SINCE THE
TURNS OF WIRE IN THE PRIMARY OF THE TRANSFORMER CONSTITUTED A
RELATIVELY SMALL PART OF THE TOTAL INDUCTANCE IN THE CLOSED CIRCUIT THE
EFFECT OF THOSE TURNS ON THE FREQUENCY OF THE CIRCUIT WAS MINIMIZED. 

BUT THE TESTIMONY AT THE TRIAL WAS IN SUBSTANTIAL AGREEMENT THAT THE
LOOSER THE COUPLING THE SLOWER IS THE TRANSFER OF ENERGY FROM THE
CLOSED CHARGING CIRCUIT TO THE OPEN ANTENNA CIRCUIT.  HENCE THE USE OF
LOOSE COUPLING PRESUPPOSES A CHARGING CIRCUIT THAT WILL STORE ITS
ENERGY FOR A CONSIDERABLE PERIOD, I.E., THAT WILL MAINTAIN PERSISTENT
OSCILLATIONS. 

FN14  STONE'S RECOGNITION OF THE SIMILARITY BETWEEN HIS ANTENNA
CIRCUIT AND HIS SCREENING CIRCUIT IS FURTHER SHOWN BY HIS DIRECTION
THAT THE COUPLING BETWEEN THE SCREENING CIRCUIT AND THE CHARGING
CIRCUIT, LIKE THAT BETWEEN THE ANTENNA AND CHARGING CIRCUITS WHERE NO
SCREENING CIRCUIT IS USED, BE LOOSE.  SEE NOTE 12, SUPRA. 

FN15  STONE'S LANGUAGE HERE MAKES IT PLAIN THAT THROUGHOUT HIS
ALLUSIONS TO A FREQUENCY DEVELOPED IN ONE CIRCUIT AS BEING "IMPRESSED"
OR "FORCED" ON ANOTHER CIRCUIT WHEN THE TWO CIRCUITS ARE COUPLED
THROUGH A TRANSFORMER, ARE USED FIGURATIVELY OR METAPHORICALLY ONLY AS
SYNONYMOUS WITH "INDUCED."  SCIENTIFICALLY THE OSCILLATIONS IN THE
CHARGING CIRCUIT ARE NOT IMPRESSED OR FORCED ON THE OTHER.  THE STRESS
IN THE MAGNETIC FIELD OF THE FIRST CIRCUIT SETS UP OR INDUCES
CORRESPONDING STRESSES IN THE MAGNETIC FIELD OF THE OTHER CIRCUIT.  THE
RESULTING FREQUENCY IN THE SECOND CIRCUIT IS AFFECTED BOTH BY THE
FREQUENCY OF THE OSCILLATIONS IN THE CHARGING CIRCUIT AND THE
INDUCTANCE AND CAPACITY IN THE SECOND CIRCUIT.  THE RESULT MAY BE THE
SUPERPOSITION OF TWO FREQUENCIES IN THE SECOND CIRCUIT.  THIS MAY BE
AVOIDED AND A SINGLE FREQUENCY DEVELOPED, AS STONE SHOWED, BY TUNING
THE SECOND CIRCUIT SO AS TO BE RESONANT TO THE FREQUENCIES CREATED IN
THE FIRST. 

FN16  AT THE INSISTENCE OF THE PATENT OFFICE STONE DIVIDED HIS
ORIGINAL APPLICATION, AND WAS GRANTED TWO PATENTS, NO. 714,756 FOR A
METHOD AND NO. 714,831 FOR APPARATUS.  THE FORMER IS THE ONE
PARTICULARLY RELIED ON HERE. 

FN17  THIS IS BORNE OUT BY THE SUBSEQUENT LETTER FROM STONE TO THE
COMMISSIONER OF PATENTS DATED JUNE 7, 1902.  STONE THERE REFERS TO A
LETTER BY THE PATENT OFFICE SAYING THAT THE STATEMENT THAT A SIMPLE
HARMONIC WAVE DEVELOPED IN THE CLOSED CIRCUIT "CAN BE TRANSFERRED TO
THE ELEVATED CONDUCTOR AND FROM THE LATTER TO THE ETHER WITHOUT CHANGE
OF FORM" IS "AN ARGUMENT THE SOUNDNESS OF WHICH THE OFFICE HAS NO MEANS
OF TESTING."  STONE REPLIED WITH ARGUMENTS TO SHOW THAT THE VIBRATIONS
RADIATED BY THE ANTENNA CIRCUIT WOULD BE SUFFICIENTLY PURE FOR
PRACTICAL PURPOSES EITHER IF THE ANTENNA CIRCUIT WERE APERIODIC, OR IF
IT HAD A FUNDAMENTAL WHICH WAS OF THE SAME FREQUENCY AS THAT OF THE
FORCED VIBRATIONS IMPRESSED UPON IT, ALTHOUGH THEY WOULD NOT BE PURE IF
THE ANTENNA CIRCUIT HAD A MARKED NATURAL PERIODICITY AND WAS UNTUNED. 
THIS LETTER, WHILE SOMEWHAT LATER IN DATE THAN THE AMENDMENTS,
REINFORCES THE CONCLUSION THAT THE PURPOSE OF THOSE AMENDMENTS WAS TO
EXPLAIN MORE FULLY THE DETAILS OF THEORY AND PRACTICE NECESSARY TO THE
SUCCESS OF THE IDEA UNDERLYING STONE'S ORIGINAL INVENTION.    FN18  IT
IS NOT WITHOUT SIGNIFICANCE THAT MARCONI'S APPLICATION WAS AT ONE TIME
REJECTED BY THE PATENT OFFICE BECAUSE ANTICIPATED BY STONE, AND WAS
ULTIMATELY ALLOWED, ON RENEWAL OF HIS APPLICATION, ON THE SOLE GROUND
THAT MARCONI SHOWED THE USE OF A VARIABLE INDUCTANCE AS A MEANS OF
TUNING THE ANTENNA CIRCUITS, WHEREAS STONE, IN THE OPINION OF THE
EXAMINER, TUNED HIS ANTENNA CIRCUITS BY ADJUSTING THE LENGTH OF THE
AERIAL CONDUCTOR.  ALL OF MARCONI'S CLAIMS WHICH INCLUDED THAT ELEMENT
WERE ALLOWED, AND THE EXAMINER STATED THAT THE REMAINING CLAIMS WOULD
BE ALLOWED IF AMENDED TO INCLUDE A VARIABLE INDUCTANCE.  APPARENTLY
THROUGH OVERSIGHT, CLAIMS 10 AND 11, WHICH FAILED TO INCLUDE THAT
ELEMENT, WERE INCLUDED IN THE PATENT AS GRANTED.  IN ALLOWING THESE
CLAIMS THE EXAMINER MADE NO REFERENCE TO LODGE'S PRIOR DISCLOSURE OF A
VARIABLE INDUCTANCE IN THE ANTENNA CIRCUIT. 

FN19  SEE FOOTNOTE 13, SUPRA. 

FN20  EVEN IF THE LACK OF INVENTION IN MARCONI'S IMPROVEMENT OVER
STONE - MAKING ADJUSTABLE THE TUNING OF THE ANTENNA CIRCUITS WHICH
STONE HAD SAID SHOULD BE TUNED - COULD BE SAID TO BE IN SUFFICIENT
DOUBT SO THAT COMMERCIAL SUCCESS COULD AID IN RESOLVING THE DOUBT,
THROPP'S SONS CO. V. SEIBERLING, 264 U.S. 320, 330; DEFOREST RADIO CO.
V. GENERAL ELECTRIC CO., 283 U.S. 664, 685; ALTOONA THEATRES V. TRI
ERGON CORP., 294 U.S. 477, 488, IT HAS NOT BEEN ESTABLISHED THAT THE
ALLEGED IMPROVEMENT CONTRIBUTED IN ANY MATERIAL DEGREE TO THAT
SUCCESS.  COMPARE ALTOONA THEATRES V. TRI-ERGON CORP., SUPRA.
MARCONI'S SPECIFICATIONS DISCLOSE A LARGE NUMBER OF DETAILS OF
CONSTRUCTION, NONE OF WHICH IS CLAIMED AS INVENTION IN THIS PATENT, IN
WHICH HIS APPARATUS DIFFERED FROM, AND MAY HAVE BEEN GREATLY SUPERIOR
TO, STONE'S.  MANY OF THESE FORMED THE SUBJECT OF PRIOR PATENTS.  AFTER
HIS APPLICATION FOR HIS PATENT, AS WELL AS BEFORE, MARCONI MADE OR
ADOPTED A GREAT NUMBER OF IMPROVEMENTS IN HIS SYSTEM OF WIRELESS
TELEGRAPHY.  TWO OF HIS ENGINEERS HAVE WRITTEN THAT A MAJOR FACTOR IN
HIS SUCCESSFUL TRANSMISSION ACROSS THE ATLANTIC IN DECEMBER, 1901, WAS
THE USE OF MUCH GREATER POWER AND HIGHER ANTENNAE THAN HAD PREVIOUSLY
BEEN ATTEMPTED, AN IMPROVEMENT IN NO WAY SUGGESTED BY THE PATENT HERE
IN SUIT.  FLEMING, ELECTRIC WAVE TELEGRAPHY, 449-53; VYVYAN, WIRELESS
OVER THIRTY YEARS, 22-33.  INDEED BOTH ARE AGREED THAT IN THE ACTUAL
TRANSMISSION ACROSS THE ATLANTIC TUNING PLAYED NO PART; THE RECEIVER
ANTENNA CONSISTED OF A WIRE SUSPENDED BY A KITE WHICH ROSE AND FELL
WITH THE WIND, VARYING THE CAPACITY SO MUCH AS TO MAKE TUNING
IMPOSSIBLE.  IBID. 

BY 1913, WHEN HE TESTIFIED IN THE NATIONAL ELECTRIC SIGNALLING CO.
CASE, THAT "DUE TO THE UTILIZATION OF THE INVENTION" OF THIS PATENT HE
HAD SUCCESSFULLY TRANSMITTED MESSAGES 6,600 MILES, HE HAD, AFTER ALMOST
CONTINUOUS EXPERIMENTATION, FURTHER INCREASED THE POWER USED, DEVELOPED
NEW APPARATUS CAPABLE OF USE WITH HEAVY POWER, ENLARGED HIS ANTENNAE
AND ADOPTED THE USE OF HORIZONTAL, "DIRECTIONAL" ANTENNAE, AND MADE USE
OF IMPROVED TYPES OF SPARK GAPS AND DETECTING APPARATUS, INCLUDING THE
FLEMING CATHODE-ANODE TUBE, THE CRYSTAL DETECTOR, AND SOUND RECORDING
OF THE SIGNALS - TO MENTION BUT A FEW OF THE IMPROVEMENTS MADE.  HE HAD
ALSO DISCOVERED THAT MUCH GREATER DISTANCES COULD BE ATTAINED AT
NIGHT.  SEE VYVYAN, SUPRA, 34-47, 55-60.  THE SUCCESS ATTAINED BY THE
APPARATUS DEVELOPED BY MARCONI AND HIS FELLOW ENGINEERS BY CONTINUOUS
EXPERIMENTATION OVER A PERIOD OF YEARS - HOWEVER RELEVANT IT MIGHT BE
IN RESOLVING DOUBTS WHETHER THE BASIC FOUR-CIRCUIT, TUNED SYSTEM
DISCLOSED BY MARCONI, AND BEFORE HIM BY STONE, INVOLVED INVENTION -
CANNOT, WITHOUT FURTHER PROOF, BE ATTRIBUTED IN SIGNIFICANT DEGREE TO
ANY PARTICULAR ONE OF THE MANY IMPROVEMENTS MADE BY MARCONI OVER STONE
DURING A PERIOD OF YEARS.  THE FACT THAT MARCONI'S APPARATUS AS A WHOLE
WAS SUCCESSFUL DOES NOT ENTITLE HIM TO RECEIVE A PATENT FOR EVERY
FEATURE OF ITS STRUCTURE. 

FN21  A PRELIMINARY INJUNCTION RESTRAINING INFRINGEMENT WAS ENTERED
IN MARCONI WIRELESS TEL. CO. V. DEFOREST CO., 225 F. 65, AFFIRMED, 225
F. 373, BOTH COURTS, WITHOUT INDEPENDENT DISCUSSION OF THE VALIDITY OF
THE PATENT, DETERMINING THAT THE DECISION IN THE NATIONAL SIGNALLING
CO. CASE JUSTIFIED THE GRANT OF PRELIMINARY RELIEF.  A PRELIMINARY
INJUNCTION WAS ALSO GRANTED IN MARCONI WIRELESS TEL. CO. V. ATLANTIC
COMMUNICATIONS CO., AN ACTION BROUGHT IN THE EASTERN DISTRICT OF NEW
YORK. 

STONE'S LETTERS WERE INTRODUCED IN EVIDENCE IN THE ATLANTIC
COMMUNICATIONS COMPANY CASE AND THE KILBOURNE & CLARK CASE.  HIS
DEPOSITION IN THE LATTER CASE, TAKEN FEBRUARY 28 AND 29, 1916, WAS
INCORPORATED IN THE RECORD IN THIS CASE.  HE THERE TESTIFIED THAT HE
HAD REFRAINED FROM PRODUCING PROOFS OF THE PRIORITY OF HIS INVENTION
WHEN CALLED UPON TO TESTIFY IN PRIOR LITIGATION IN 1911 AND 1914
BECAUSE HE WISHED THE PRIORITY OF HIS INVENTION TO BE ESTABLISHED BY
THE OWNERS OF THE PATENT - THE STONE TELEGRAPH CO. AND ITS BONDHOLDERS
IN ORDER TO BE SURE THAT A BONA FIDE DEFENSE WOULD BE MADE.  HE SAID
THAT BY MAY 1915, WHEN HE TESTIFIED IN THE ATLANTIC COMMUNICATIONS CO.
CASE, HE HAD CONCLUDED THAT THE OWNERS OF THE PATENT WERE NOT IN A
FINANCIAL POSITION TO LITIGATE, AND THAT THE ATLANTIC CO. "WOULD MAKE A
BONA FIDE STONE DEFENSE." 

FN22  SEE NOTE 13, SUPRA.  MOST OF THE CURRENT IN THE ANTENNA CIRCUIT
IS SAID TO PASS THROUGH THE CONDENSER SHUNT AND NOT THROUGH THE
TRANSFORMER COIL, THUS MINIMIZING THE EFFECT UPON THE FREQUENCY OF
VIBRATIONS IN THE ANTENNA CIRCUIT OF THE MAGNETIC STRESSES SET UP IN
THE PRIMARY OF THE TRANSFORMER BY THE CURRENT INDUCED IN THE
SECONDARY. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING IN PART: 

I REGRET TO FIND MYSELF UNABLE TO AGREE TO THE COURT'S CONCLUSION
REGARDING THE INVALIDITY OF THE BROAD CLAIMS OF MARCONI'S PATENT. 
SINCE BROAD CONSIDERATIONS CONTROL THE SIGNIFICANCE AND ASSESSMENT OF
THE DETAILS ON WHICH JUDGMENT IN THE CIRCUMSTANCES OF A CASE LIKE THIS
IS BASED, I SHALL INDICATE THE GENERAL DIRECTION OF MY VIEWS. 

IT IS AN OLD OBSERVATION THAT THE TRAINING OF ANGLO-AMERICAN JUDGES
ILL FITS THEM TO DISCHARGE THE DUTIES CAST UPON THEM BY PATENT
LEGISLATION.  FN1  THE SCIENTIFIC ATTAINMENTS OF A LORD MOULTON ARE
PERHAPS UNIQUE IN THE ANNALS OF THE ENGLISH-SPEAKING JUDICIARY. 
HOWEVER, SO LONG AS THE CONGRESS, FOR THE PURPOSES OF PATENTABILITY,
MAKES THE DETERMINATION OF ORIGINALITY A JUDICIAL FUNCTION, JUDGES MUST
OVERCOME THEIR SCIENTIFIC INCOMPETENCE AS BEST THEY CAN.  BUT
CONSCIOUSNESS OF THEIR LIMITATIONS SHOULD MAKE THEM VIGILANT AGAINST
IMPORTING THEIR OWN NOTIONS OF THE NATURE OF THE CREATIVE PROCESS INTO
CONGRESSIONAL LEGISLATION, WHEREBY CONGRESS "TO PROMOTE THE PROGRESS OF
SCIENCE AND USEFUL ARTS" HAS SECURED "FOR LIMITED TIMES TO  ...
INVENTORS THE EXCLUSIVE RIGHT TO THEIR  ...  DISCOVERIES."  ABOVE ALL,
JUDGES MUST AVOID THE SUBTLE TEMPTATION OF TAKING SCIENTIFIC PHENOMENA
OUT OF THEIR CONTEMPORANEOUS SETTING AND READING THEM WITH A
RETROSPECTIVE EYE. 

THE DISCOVERIES OF SCIENCE ARE THE DISCOVERIES OF THE LAWS OF NATURE,
AND LIKE NATURE DO NOT GO BY LEAPS.  EVEN NEWTON AND EINSTEIN, HARVEY
AND DARWIN, BUILT ON THE PAST AND ON THEIR PREDECESSORS.  SELDOM INDEED
HAS A GREAT DISCOVERER OR INVENTOR WANDERED LONELY AS A CLOUD.  GREAT
INVENTIONS HAVE ALWAYS BEEN PARTS OF AN EVOLUTION, THE CULMINATION AT A
PARTICULAR MOMENT OF AN ANTECEDENT PROCESS.  SO TRUE IS THIS THAT THE
HISTORY OF THOUGHT RECORDS STRIKING COINCIDENTAL DISCOVERIES - SHOWING
THAT THE NEW INSIGHT FIRST DECLARED TO THE WORLD BY A PARTICULAR
INDIVIDUAL WAS "IN THE AIR" AND RIPE FOR DISCOVERY AND DISCLOSURE. 

THE REAL QUESTION IS HOW SIGNIFICANT A JUMP IS THE NEW DISCLOSURE
FROM THE OLD KNOWLEDGE.  RECONSTRUCTION BY HINDSIGHT, MAKING OBVIOUS
SOMETHING THAT WAS NOT AT ALL OBVIOUS TO SUPERIOR MINDS UNTIL SOMEONE
POINTED IT OUT, - THIS IS TOO OFTEN A TEMPTING EXERCISE FOR ASTUTE
MINDS.  THE RESULT IS TO REMOVE THE OPPORTUNITY OF OBTAINING WHAT
CONGRESS HAS SEEN FIT TO MAKE AVAILABLE. 

THE INESCAPABLE FACT IS THAT MARCONI IN HIS BASIC PATENT HIT UPON
SOMETHING THAT HAD ELUDED THE BEST BRAINS OF THE TIME WORKING ON THE
PROBLEM OF WIRELESS COMMUNICATION - CLERK MAXWELL AND SIR OLIVER LODGE
AND NIKOLA TESLA.  GENIUS IS A WORD THAT OUGHT TO BE RESERVED FOR THE
RAREST OF GIFTS.  I AM NOT QUALIFIED TO SAY WHETHER MARCONI WAS A
GENIUS.  CERTAINLY THE GREAT EMINENCE OF CLERK MAXWELL AND SIR OLIVER
LODGE AND NIKOLA TESLA IN THE FIELD IN WHICH MARCONI WAS WORKING IS NOT
QUESTIONED.  THEY WERE, I SUPPOSE, MEN OF GENIUS.  THE FACT IS THAT
THEY DID NOT HAVE THE "FLASH" (A CURRENT TERM IN PATENT OPINIONS
HAPPILY NOT USED IN THIS DECISION) THAT BEGOT THE IDEA IN MARCONI WHICH
HE GAVE TO THE WORLD THROUGH THE INVENTION EMBODYING THE IDEA.  BUT IT
IS NOW HELD THAT IN THE IMPORTANT ADVANCE UPON HIS BASIC PATENT MARCONI
DID NOTHING THAT HAD NOT ALREADY BEEN SEEN AND DISCLOSED. 

TO FIND IN 1943 THAT WHAT MARCONI DID REALLY DID NOT PROMOTE THE
PROGRESS OF SCIENCE BECAUSE IT HAD BEEN ANTICIPATED IS MORE THAN A
MIRAGE OF HINDSIGHT.  WIRELESS IS SO UNCONSCIOUS A PART OF US, LIKE THE
AUTOMOBILE TO THE MODERN CHILD, THAT IT IS ALMOST IMPOSSIBLE TO IMAGINE
OURSELVES BACK INTO THE TIME WHEN MARCONI GAVE TO THE WORLD WHAT FOR US
IS PART OF THE ORDER OF OUR UNIVERSE.  AND YET, BECAUSE A JUDGE OF
UNUSUAL CAPACITY FOR UNDERSTANDING SCIENTIFIC MATTERS IS ABLE TO
DEMONSTRATE BY A PROCESS OF INTRICATE RATIOCINATION THAT ANYONE COULD
HAVE DRAWN PRECISELY THE INFERENCES THAT MARCONI DREW AND THAT STONE
HINTED AT ON PAPER, THE COURT FINDS THAT MARCONI'S PATENT WAS INVALID
ALTHOUGH NOBODY EXCEPT MARCONI DID IN FACT DRAW THE RIGHT INFERENCES
THAT WERE EMBODIED INTO A WORKABLE BOON FOR MANKIND.  FOR ME IT SPEAKS
VOLUMES THAT IT SHOULD HAVE TAKEN FORTY YEARS TO REVEAL THE FATAL
BEARING OF STONE'S RELATION TO MARCONI'S ACHIEVEMENT BY A RETROSPECTIVE
READING OF HIS APPLICATION TO MEAN THIS RATHER THAN THAT.  THIS IS FOR
ME, AND I SAY IT WITH MUCH DIFFIDENCE, TOO EASY A TRANSITION FROM WHAT
WAS NOT TO WHAT BECAME. 

I HAVE LITTLE DOUBT, IN SO FAR AS I AM ENTITLED TO EXPRESS AN
OPINION, THAT THE VAST TRANSFORMING FORCES OF TECHNOLOGY HAVE RENDERED
OBSOLETE MUCH IN OUR PATENT LAW.  FOR ALL I KNOW THE BASIC ASSUMPTION
OF OUR PATENT LAW MAY BE FALSE, AND INVENTORS AND THEIR FINANCIAL
BACKERS DO NOT NEED THE INCENTIVE OF A LIMITED MONOPOLY TO STIMULATE
INVENTION.  BUT WHATEVER REVAMPING OUR PATENT LAWS MAY NEED, IT IS THE
BUSINESS OF CONGRESS TO DO THE REVAMPING.  WE HAVE NEITHER
CONSTITUTIONAL AUTHORITY NOR SCIENTIFIC COMPETENCE FOR THE TASK. 

FN1  "CONSIDERING THE EXCLUSIVE RIGHT TO INVENTION AS GIVEN NOT OF
NATURAL RIGHT, BUT FOR THE BENEFIT OF SOCIETY, I KNOW WELL THE
DIFFICULTY OF DRAWING A LINE BETWEEN THE THINGS WHICH ARE WORTH TO THE
PUBLIC THE EMBARRASSMENT OF AN EXCLUSIVE PATENT, AND THOSE WHICH ARE
NOT.  AS A MEMBER OF THE PATENT BOARD FOR SEVERAL YEARS, WHILE THE LAW
AUTHORIZED A BOARD TO GRANT OR REFUSE PATENTS, I SAW WITH WHAT SLOW
PROGRESS A SYSTEM OF GENERAL RULES COULD BE MATURED.  ...  INSTEAD OF
REFUSING A PATENT IN THE FIRST INSTANCE, AS THE BOARD WAS AUTHORIZED TO
DO, THE PATENT NOW ISSUES OF COURSE, SUBJECT TO BE DECLARED VOID ON
SUCH PRINCIPLES AS SHOULD BE ESTABLISHED BY THE COURTS OF LAW.  THIS
BUSINESS, HOWEVER, IS BUT LITTLE ANALOGOUS TO THEIR COURSE OF READING,
SINCE WE MIGHT IN VAIN TURN OVER ALL THE LUBBERLY VOLUMES OF THE LAW TO
FIND A SINGLE RAY WHICH WOULD LIGHTEN THE PATH OF THE MECHANIC OR THE
MATHEMATICIAN.  IT IS MORE WITHIN THE INFORMATION OF A BOARD OF
ACADEMICAL PROFESSORS, AND A PREVIOUS REFUSAL OF PATENT WOULD BETTER
GUARD OUR CITIZENS AGAINST HARASSMENT BY LAW-SUITS.  BUT ENGLAND HAD
GIVEN IT TO HER JUDGES, AND THE USUAL PREDOMINANCY OF HER EXAMPLES
CARRIED IT TO OURS."  THOMAS JEFFERSON TO MR. ISAAC M'PHERSON, AUGUST
13, 1813, WORKS OF THOMAS JEFFERSON, WASH. ED., VOL. VI, PP. 181-82. 

"I CANNOT STOP WITHOUT CALLING ATTENTION TO THE EXTRAORDINARY
CONDITION OF THE LAW WHICH MAKES IT POSSIBLE FOR A MAN WITHOUT ANY
KNOWLEDGE OF EVEN THE RUDIMENTS OF CHEMISTRY TO PASS UPON SUCH
QUESTIONS AS THESE.  THE INORDINATE EXPENSE OF TIME IS THE LEAST OF THE
RESULTING EVILS, FOR ONLY A TRAINED CHEMIST IS REALLY CAPABLE OF
PASSING UPON SUCH FACTS, E.G., IN THIS CASE THE CHEMICAL CHARACTER OF
VON FURTH'S SOCALLED 'ZINC COMPOUND,' OR THE PRESENCE OF INACTIVE
ORGANIC SUBSTANCES.  ...  HOW LONG WE SHALL CONTINUE TO BLUNDER ALONG
WITHOUT THE AID OF UNPARTISAN AND AUTHORITATIVE SCIENTIFIC ASSISTANCE
IN THE ADMINISTRATION OF JUSTICE, NO ONE KNOWS; BUT ALL FAIR PERSONS
NOT CONVENTIONALIZED BY PROVINCIAL LEGAL HABITS OF MIND OUGHT, I SHOULD
THINK, UNITE TO EFFECT SOME SUCH ADVANCE."  JUDGE LEARNED HAND IN PARKE
DAVIS & CO. V. MULFORD CO., 189 F. 95, 115(1911). 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 

MR. JUSTICE RUTLEDGE, DISSENTING IN PART: 

UNTIL NOW LAW  FN1  HAS UNITED WITH ALMOST UNIVERSAL REPUTE N2 IN
ACKNOWLEDGING MARCONI AS THE FIRST TO ESTABLISH WIRELESS TELEGRAPHY ON
A COMMERCIAL BASIS.  BEFORE HIS INVENTION, NOW IN ISSUE, FN3  ETHER
BORNE COMMUNICATION TRAVELED SOME EIGHTY MILES.  HE LENGTHENED THE ARC
TO 6,000.  WHETHER OR NOT THIS WAS "INVENTIVE" LEGALLY, IT WAS A GREAT
AND BENEFICIAL ACHIEVEMENT.  FN4 TODAY, FORTY YEARS AFTER THE EVENT,
THE COURT'S DECISION REDUCES IT TO AN ELECTRICAL MECHANIC'S APPLICATION
OF MERE SKILL IN THE ART. 

BY PRESENT KNOWLEDGE, IT WOULD BE NO MORE.  SCHOOL BOYS AND MECHANICS
NOW COULD PERFORM WHAT MARCONI DID IN 1900.  BUT BEFORE THEN WIZARDS
HAD TRIED AND FAILED.  THE SEARCH WAS AT THE PINNACLE OF ELECTRICAL
KNOWLEDGE.  THERE, SEEKING, AMONG OTHERS, WERE TESLA, LODGE AND STONE,
OLD HANDS AND GREAT ONES.  WITH THEM WAS MARCONI, STILL YOUNG AS THE
COMPANY WENT  FN5  OBSESSED WITH YOUTH'S ZEAL FOR THE HUNT.    AT SUCH
AN ALTITUDE, TO WORK AT ALL WITH SUCCESS IS TO QUALIFY FOR GENIUS, IF
THAT IS IMPORTANT.  AND A SHORT STEP FORWARD GIVES EVIDENCE OF
INVENTIVE POWER.  FOR AT THAT HEIGHT A MERELY SLIGHT ADVANCE COMES
THROUGH INSIGHT ONLY A FIRST-RATE MIND CAN PRODUCE.  THIS IS SO,
WHETHER IT COMES BY YEARS OF HARD WORK TRACKING DOWN THE SOUGHT SECRET
OR BY INTUITION FLASHED FROM SUBCONSCIOUSNESS MADE FERTILE BY LONG
EXPERIENCE OR SHORTER INTENSIVE CONCENTRATION.  AT THIS LEVEL AND IN
THIS COMPANY MARCONI WORKED AND WON.    HE WON BY THE TEST OF RESULTS. 
NO ONE DISPUTES THIS.  HIS INVENTION HAD IMMEDIATE AND VAST SUCCESS,
WHERE ALL THAT HAD BEEN DONE BEFORE, INCLUDING HIS OWN WORK, GAVE BUT
NARROWLY LIMITED UTILITY.  TO MAKE USEFUL IMPROVEMENT AT THIS PLANE, BY
SUCH A LEAP, ITSELF SHOWS HIGH CAPACITY.  AND THAT IS TRUE, ALTHOUGH IT
WAS INHERENT IN THE SITUATION THAT MARCONI'S SUCCESS SHOULD COME BY
ONLY A SMALL MARGIN OF DIFFERENCE IN CONCEPTION.  THERE WAS NOT ROOM
FOR ANY GREAT LEAP OF THOUGHT, BEYOND WHAT HE AND OTHERS HAD DONE, TO
BRING TO BIRTH THE PRACTICAL AND USEFUL RESULT.  THE MOST EMINENT MEN
OF THE TIME WERE CONSCIOUS OF THE PROBLEM, WERE INTERESTED IN IT, HAD
SOUGHT FOR YEARS THE EXACTLY RIGHT ARRANGEMENT, ALWAYS APPROACHING MORE
NEARLY BUT NEVER QUITE REACHING THE STAGE OF PRACTICAL SUCCESS.  THE
INVENTION WAS, SO TO SPEAK, HOVERING IN THE GENERAL CLIMATE OF SCIENCE,
MOMENTARILY AWAITING BIRTH.  BUT JUST THE RIGHT RELEASING TOUCH HAD NOT
BEEN FOUND.  MARCONI ADDED IT. 

WHEN TO ALTITUDE OF THE PLANE OF CONCEPTION AND RESULTS SO IMMEDIATE
AND USEFUL IS ADDED WELL-NIGH UNANIMOUS CONTEMPORARY JUDGMENT, ONE WHO
LONG AFTERWARD WOULD OVERTURN THE INVENTION ASSUMES A DOUBLE BURDEN. 
HE UNDERTAKES TO OVERCOME WHAT WOULD OFFER STRONG RESISTANCE FRESH IN
ITS ORIGINAL SETTING.  HE SEEKS ALSO TO OVERTHROW THE VERDICT OF TIME. 
LONG-RANGE RETROACTIVE DIAGNOSIS, HOWEVER COMPETENT THE PHYSICIAN,
BECOMES HAZARDOUS BY PROGRESSION AS THE PASSING YEARS ADD DISTORTIONS
OF THE PAST AND DESTROY ITS PERSPECTIVE.  NO LIGHT TASK IS ACCEPTED
THEREFORE IN UNDERTAKING TO OVERTHROW A VERDICT SETTLED SO LONG AND SO
WELL, AND ESPECIALLY ONE SO FOREIGN TO THE ART OF JUDGES. 

IN LAWYERS' TERMS THIS MEANS A BURDEN OF PROOF, NOT INSURMOUNTABLE,
BUT INHOSPITABLE TO IMPLICATIONS AND INFERENCES WHICH IN LESS SETTLED
SITUATIONS WOULD BE PERMISSIBLE TO SWING THE BALANCE OF JUDGMENT
AGAINST THE CLAIMED INVENTION.  THAT MARCONI RECEIVED PATENTS ELSEWHERE
WHICH, ONCE ESTABLISHED, HAVE STOOD THE TEST OF TIME AS WELL AS OF
CONTEMPORARY JUDGMENT, AND SECURED HIS AMERICAN PATENT ONLY AFTER YEARS
WERE REQUIRED TO CONVINCE OUR OFFICE HE HAD FOUND WHAT SO MANY OTHERS
SOUGHT, BUT EMPHASIZES THE WEIGHT AND CLARITY OF PROOF REQUIRED TO
OVERCOME HIS CLAIM. 

MARCONI RECEIVED PATENTS HERE, IN ENGLAND, AND IN FRANCE.  FN6  THE
AMERICAN PATENT WAS NOT ISSUED PERFUNCTORILY.  IT CAME FORTH ONLY AFTER
A LONG STRUGGLE HAD BROUGHT ABOUT REVERSAL OF THE PATENT OFFICE'S
ORIGINAL AND LATER REJECTIONS.  THE APPLICATION WAS FILED IN NOVEMBER,
1900.  IN DECEMBER IT WAS REJECTED ON LODGE,  FN7  AND AN EARLIER
PATENT TO MARCONI.  FN8  IT WAS AMENDED AND AGAIN REJECTED.  FURTHER
AMENDMENTS FOLLOWED AND OPERATION OF THE SYSTEM WAS EXPLAINED.  AGAIN
REJECTION TOOK PLACE, THIS TIME ON LODGE, THE EARLIER MARCONI, BRAUN
AND OTHER PATENTS.  AFTER FURTHER PROCEEDINGS, THE CLAIMS WERE REJECTED
ON TESLA.  FN9  A YEAR ELAPSED, BUT IN MARCH, 1904, RECONSIDERATION WAS
GRANTED.  SOME CLAIMS THEN WERE REJECTED ON STONE,  FN10  OTHERS WERE
AMENDED, STILL OTHERS WERE CANCELLED, AND FINALLY ON JUNE 28, 1904, THE
PATENT ISSUED.  FRENCH AND BRITISH PATENTS HAD BEEN GRANTED IN 1900. 

LITIGATION FOLLOWED AT ONCE.  AMONG MARCONI'S AMERICAN VICTORIES WERE
THE DECISIONS CITED ABOVE.  FN11  ABROAD THE RESULTS WERE SIMILAR. 
FN12  UNTIL 1935, WHEN THE COURT OF CLAIMS HELD IT INVALID IN THIS
CASE, 81 CT. CL. 671, NO COURT HAD FOUND MARCONI'S PATENT WANTING IN
INVENTION.  IT STOOD WITHOUT ADVERSE JUDICIAL DECISION FOR OVER THIRTY
YEARS.  IN THE FACE OF THE BURDEN THIS HISTORY CREATES, WE TURN TO THE
REFERENCES, CHIEFLY TESLA, LODGE AND STONE.  THE COURT RELIES
PRINCIPALLY ON STONE, BUT WITHOUT DECIDING WHETHER THIS WAS INVENTIVE. 

IT IS IMPORTANT, IN CONSIDERING THE REFERENCES, TO STATE THE PARTIES'
CONTENTIONS CONCISELY.  THE GOVERNMENT'S STATEMENT IS THAT THEY DIFFER
OVER WHETHER MARCONI WAS FIRST TO CONCEIVE FOUR-CIRCUIT "TUNING" FOR
TRANSMISSION OF SOUND BY HERTZIAN WAVES.  IT SAYS THIS WAS TAUGHT
PREVIOUSLY BY TESLA, LODGE AND STONE.  PETITIONER HOWEVER SAYS NONE OF
THEM TAUGHT WHAT MARCONI DID.  IT CONTENDS THAT MARCONI WAS THE FIRST
TO ACCOMPLISH THE KIND OF TUNING HE ACHIEVED, AND IN EFFECT URGES THIS
WAS PATENTABLY DIFFERENT FROM OTHER FORMS FOUND EARLIER. 

SPECIFICALLY PETITIONER URGES THAT TESLA HAD NOTHING TO DO WITH
EITHER HERTZIAN WAVES OR TUNING, BUT IN FACT HIS TRANSMITTING AND
RECEIVING WIRES COULD NOT BE TUNED.  FN13  LODGE, IT CLAIMS, DISCLOSED
A TUNED ANTENNA, FOR EITHER TRANSMITTER OR RECEIVER OR BOTH, BUT THE
CLOSED CIRCUITS ASSOCIATED WITH THE ANTENNA ONES WERE NOT TUNED. 
FINALLY IT IS SAID STONE DOES NOT DESCRIBE TUNING THE ANTENNA, BUT DOES
SHOW TUNING OF THE ASSOCIATED CLOSED CIRCUIT.  AND MARCONI TUNED BOTH. 

PETITIONER DOES NOT CLAIM THE GENERAL PRINCIPLES OF TUNING.  IT
ADMITS THEY HAD LONG BEEN FAMILIAR TO PHYSICISTS AND THAT LODGE AND
OTHERS FULLY UNDERSTOOD THEM.  BUT IT ASSERTS LODGE DID NOT KNOW WHAT
CIRCUITS SHOULD BE TUNED, TO ACCOMPLISH WHAT MARCONI ACHIEVED, AND
THAT, TO SECURE THIS, "KNOWLEDGE THAT TUNING IS POSSIBLE IS NOT ENOUGH
THERE IS ALSO REQUIRED THE KNOWLEDGE OF WHETHER OR NOT TO TUNE AND HOW
MUCH." 

LIKEWISE, PETITIONER DOES NOT DENY THAT STONE KNEW AND UTILIZED THE
PRINCIPLES OF TUNING; BUT URGES, WITH RESPECT TO THE CLAIM HE APPLIED
THEM TO ALL OF THE FOUR CIRCUITS, THAT THE ONLY ONES TUNED, IN HIS
ORIGINAL APPLICATION, WERE THE CLOSED CIRCUITS AND THEREFORE THAT THE
ANTENNA CIRCUITS WERE NOT TUNED; ALTHOUGH IT IS NOT DENIED THAT THE
EFFECTS OF TUNING THE CLOSED CIRCUITS WERE REFLECTED IN THE OPEN ONES
BY WHAT STONE DESCRIBES AS "PRODUCING FORCED SIMPLE HARMONIC ELECTRIC
VIBRATIONS OF THE SAME PERIODICITY IN AN ELEVATED CONDUCTOR." 

THE STONE AMENDMENTS OF 1902, MADE MORE THAN A YEAR AFTER MARCONI'S
FILING DATE, ADMITTEDLY DISCLOSE TUNING OF BOTH THE CLOSED AND THE OPEN
CIRCUITS, AND WERE MADE FOR THE PURPOSE OF STATING EXPRESSLY THE LATTER
EFFECT, CLAIMED TO BE IMPLICIT IN THE ORIGINAL APPLICATION.  PETITIONER
DENIES THIS WAS IMPLICIT AND ARGUES, IN EFFECT, THAT WHAT STONE
ORIGINALLY MEANT BY "PRODUCING FORCED  ...  VIBRATIONS" WAS CREATING
THE DESIRED EFFECTS IN THE ANTENNA BY FORCE, NOT BY TUNING; AND
THEREFORE THAT THE TWO METHODS WERE PATENTABLY DIFFERENT. 

IT SEEMS CLEAR THAT THE PARTIES USE THE WORD "TUNING" TO MEAN
DIFFERENT THINGS AND THE AMBIGUITY, IF THERE IS ONE, MUST BE RESOLVED
BEFORE THE CRUCIAL QUESTIONS CAN BE STATED WITH MEANING.  IT WILL AID,
IN DECIDING WHETHER THERE IS AMBIGUITY OR ONLY CONFUSION, TO CONSIDER
THE TERM AND THE POSSIBLE CONCEPTIONS IT MAY CONVEY IN THE LIGHT OF THE
PROBLEMS MARCONI AND STONE, AS WELL AS OTHER REFERENCES, WERE SEEKING
TO SOLVE. 

MARCONI HAD IN MIND FIRST A SPECIFIC DIFFICULTY, AS DID THE PRINCIPAL
REFERENCES.  IT AROSE FROM WHAT, TO THE TIME OF HIS INVENTION, HAD BEEN
A BAFFLING PROBLEM IN THE ART. SHORTLY AND SIMPLY, IT WAS THAT AN
ELECTRICAL CIRCUIT WHICH IS A GOOD CONSERVER OF ENERGY IS A BAD
RADIATOR AND, CONVERSELY, A GOOD RADIATOR IS A BAD CONSERVER OF
ENERGY.  EFFECTIVE USE OF HERTZIAN WAVES OVER LONG DISTANCES REQUIRED
BOTH EFFECTS.  TO STATE THE MATTER DIFFERENTLY, LODGE HAD EXPLAINED IN
1894 THE DIFFICULTIES OF FULLY UTILIZING THE PRINCIPLE OF SYMPATHETIC
RESONANCE IN DETECTING ETHER WAVES.  TO SECURE THIS, IT WAS NECESSARY,
ON THE ONE HAND, TO DISCHARGE A LONG SERIES OF WAVES OF EQUAL OR
APPROXIMATELY EQUAL LENGTH.  SUCH A SERIES CAN BE PRODUCED ONLY BY A
CIRCUIT WHICH CONSERVES ITS ENERGY WELL, WHAT MARCONI CALLS A
PERSISTENT OSCILLATOR.  ON THE OTHER HAND, FOR DISTANT DETECTION, THE
WAVES MUST BE OF SUBSTANTIAL AMPLITUDE, AND ONLY A CIRCUIT WHICH LOSES
ITS ENERGY RAPIDLY CAN TRANSMIT SUCH WAVES WITH MAXIMUM EFFICIENCY. 
OBVIOUSLY IN A SINGLE CIRCUIT THE TWO DESIRED EFFECTS TEND TO CANCEL
EACH OTHER, AND THEREFORE TO LIMIT THE DISTANCE OF DETECTION.  SIMILAR
DIFFICULTY CHARACTERIZED THE RECEIVER, FOR A GOOD RADIATOR IS A GOOD
ABSORBER, AND THAT VERY QUALITY DISABLES IT TO STORE UP AND HOLD THE
EFFECT OF A TRAIN OF WAVES, UNTIL ENOUGH IS ACCUMULATED TO BREAK DOWN
THE COHERER, AS DETECTION REQUIRES. 

SINCE THE DIFFICULTY WAS INHERENT IN A SINGLE CIRCUIT, WHETHER AT ONE
END OR THE OTHER, MARCONI USED TWO IN BOTH TRANSMITTER AND RECEIVER,
FOUR IN ALL.  IN EACH STATION HE USED ONE CIRCUIT TO OBTAIN ONE OF THE
NECESSARY ADVANTAGES AND THE OTHER CIRCUIT TO SECURE THE OTHER
ADVANTAGE.  THE ANTENNA (OR OPEN) CIRCUITS HE MADE "GOOD RADIATORS" (OR
ABSORBERS).  THE CLOSED CIRCUITS HE CONSTRUCTED AS "GOOD CONSERVERS." 
BY COUPLING THE TWO AT EACH END LOOSELY HE SECURED FROM THEIR
COMBINATION THE DUAL ADVANTAGES HE SOUGHT.  AT THE TRANSMITTER, THE
CLOSED CIRCUIT, BY VIRTUE OF ITS CAPACITY FOR CONSERVING ENERGY, GAVE
PERSISTENT OSCILLATION, WHICH PASSED SUBSTANTIALLY UNDIMINISHED THROUGH
THE COUPLING TRANSFORMER TO THE "GOOD RADIATOR" OPEN CIRCUIT AND FROM
IT WAS DISCHARGED WITH LITTLE LOSS OF ENERGY INTO THE ETHER.  THENCE IT
WAS PICKED UP BY THE "GOOD ABSORBER" OPEN CIRCUIT AND PASSED, WITHOUT
SERIOUS LOSS OF ENERGY, THROUGH THE COUPLING TRANSFORMER, INTO THE
CLOSED "GOOD CONSERVING" CIRCUIT, WHERE IT ACCUMULATED TO BREAK THE
COHERER AND GIVE DETECTION. 

MOREOVER, AND FOR PRESENT PURPOSES THIS IS THE IMPORTANT THING,
MARCONI BROUGHT THE CLOSED AND OPEN CIRCUITS INTO ALMOST COMPLETE
HARMONY BY PLACING VARIABLE INDUCTANCE IN EACH.  THROUGH THIS THE
PERIODICITY OF THE OPEN CIRCUIT WAS ADJUSTED AUTOMATICALLY TO THAT OF
THE CLOSED ONE; AND, SINCE THE CIRCUITS OF THE RECEIVING STATION WERE
SIMILARLY ADJUSTABLE, THE MAXIMUM RESONANCE WAS SECURED THROUGHOUT THE
SYSTEM.  MARCONI THUS NOT ONLY SOLVED THE DILEMMA OF A SINGLE CIRCUIT
ARRANGEMENT; HE ATTAINED THE MAXIMUM OF RESONANCE AND SELECTIVITY BY
PROVIDING IN EACH CIRCUIT INDEPENDENT MEANS OF TUNING. 

IN 1911 THIS SOLUTION WAS HELD INVENTIVE, AS AGAINST LODGE, MARCONI'S
PRIOR PATENTS, BRAUN AND OTHER REFERENCES, IN MARCONI V. BRITISH RADIO
TEL. & TEL. CO., 27 T.L. R. 274.  MR. JUSTICE PARKER CAREFULLY REVIEWED
THE PRIOR ART, STATED THE PROBLEM, MARCONI'S SOLUTION, AND IN DISPOSING
OF BRAUN'S SPECIFICATION CONCLUDED IT "DID NOT CONTAIN EVEN THE
REMOTEST SUGGESTION OF THE PROBLEM ...  , MUCH LESS ANY SUGGESTION
BEARING ON ITS SOLUTION.  ...  "  AS TO LODGE, MR. JUSTICE PARKER
OBSERVED, REFERRING FIRST TO MARCONI: 

"  ...  IT IS IMPORTANT TO NOTICE THAT IN THE RECEIVER THE MERE
INTRODUCTION OF TWO CIRCUITS INSTEAD OF ONE WAS NO NOVELTY.  A FIGURE
IN LODGE'S 1897 PATENT SHOWS THE OPEN CIRCUIT OF HIS RECEIVING AERIAL
LINKED THROUGH A TRANSFORMER WITH A CLOSED CIRCUIT CONTAINING THE
COHERER, HIS IDEA BEING, AS HE STATES, TO LEAVE HIS RECEIVING AERIAL
FREER TO VIBRATE ELECTRICALLY WITHOUT DISTURBANCE FROM ATTACHED WIRES. 
THIS SECONDARY CIRCUIT, AS SHOWN, IS NOT TUNED TO, NOR CAN IT BE TUNED
TO, THE CIRCUIT OF THE AERIAL.  THIS, IN MY OPINION, IS EXCEEDINGLY
STRONG EVIDENCE THAT MARCONI'S 1900 INVENTION WAS NOT SO OBVIOUS AS TO
DEPRIVE IT OF SUBJECT MATTER.  IN THE LITERATURE QUOTED THERE IS NO
TRACE OF THE IDEA UNDERLYING MR. MARCONI'S INVENTION, NOR, SO FAR AS I
CAN SEE, A SINGLE SUGGESTION FROM WHICH A COMPETENT ENGINEER COULD
ARRIVE AT THIS IDEA." 

IT WAS THEREFORE CLEARLY MR. JUSTICE PARKER'S VIEW, IN HIS CLOSER
PERSPECTIVE TO THE ORIGIN OF THE INVENTION AND THE REFERENCES HE
CONSIDERED, THAT IN NONE OF THEM, AND PARTICULARLY NOT IN LODGE OR
BRAUN, WAS THERE ANTICIPATION OF MARCONI'S SOLUTION. 

HE DID NOT MEAN THAT THE REFERENCES DID NOT APPLY "THE PRINCIPLE OF
RESONANCE AS BETWEEN TRANSMITTER AND RECEIVER" OR UTILIZE "THE
PRINCIPLE OF SYMPATHETIC RESONANCE FOR THE PURPOSE OF DETECTION OF
ETHER WAVES."  FOR HE EXPRESSLY ATTRIBUTED TO LODGE, IN HIS 1894
LECTURES, EXPLANATION "WITH GREAT EXACTNESS (OF) THE VARIOUS
DIFFICULTIES ATTENDING THE FULL UTILIZATION" OF THAT PRINCIPLE.  AND IN
REFERRING TO MARCONI'S FIRST PATENT, OF 1896, THE OPINION STATES THAT
MARCONI "FOR WHAT IT WAS WORTH  ...  TUNED THE TWO CIRCUITS (I.E., THE
SENDING AND RECEIVING ONES) TOGETHER AS HERTZ HAD DONE." 

FROM THESE AND OTHER STATEMENTS IN THE OPINION IT IS OBVIOUS THAT MR.
JUSTICE PARKER FOUND MARCONI'S INVENTION IN SOMETHING MORE THAN MERELY
THE APPLICATION OF THE "PRINCIPLE OF RESONANCE," OR "SYMPATHETIC
RESONANCE," OR ITS USE TO "TUNE" TOGETHER THE TRANSMITTING AND
RECEIVING CIRCUITS.  FOR MARCONI IN HIS OWN PRIOR INVENTIONS, LODGE AND
THE OTHER REFERENCES, IN FACT ALL WHO HAD CONSTRUCTED ANY SYSTEM USING
HERTZIAN WAVES CAPABLE OF TRANSMITTING AND DETECTING SOUND, NECESSARILY
HAD MADE USE, IN SOME MANNER AND TO SOME EXTENT, OF "THE PRINCIPLE OF
RESONANCE" OR "SYMPATHETIC RESONANCE."  THAT PRINCIPLE IS INHERENT IN
THE IDEA OF WIRELESS COMMUNICATION BY HERTZIAN WAVES.  SO THAT,
NECESSARILY, ALL THE PRIOR CONCEPTIONS INCLUDED THE IDEA THAT COMMON
PERIODICITY MUST APPEAR IN ALL OF THE CIRCUITS EMPLOYED. 

NOR DID MR. JUSTICE PARKER'S OPINION FIND THE INVENTIVE FEATURE IN
THE USE OF TWO CIRCUITS INSTEAD OF ONE, AT ANY RATE IN THE RECEIVER. 
FOR HE EXPRESSLY NOTES THIS IN LODGE.  BUT HE POINTS OUT THAT LODGE
ADDED THE SEPARATE CIRCUIT "TO LEAVE HIS RECEIVING AERIAL FREER TO
VIBRATE ELECTRICALLY WITHOUT DISTURBANCE FROM ATTACHED WIRES."  AND HE
GOES ON TO NOTE THAT THIS SECONDARY (OR CLOSED) CIRCUIT NOT ONLY WAS
NOT, BUT COULD NOT BE, "TUNED" TO THE AERIAL CIRCUIT.  AND THIS HE
FINDS "EXCEEDINGLY STRONG EVIDENCE" THAT "MARCONI'S 1900 INVENTION WAS
NOT SO OBVIOUS AS TO DEPRIVE IT OF SUBJECT MATTER."  LODGE HAD "TUNED"
THE ANTENNA CIRCUIT, BY PLACING IN IT A VARIABLE INDUCTANCE.  BUT HE
DID NOT DO THIS OR ACCOMPLISH THE SAME THING BY ANY OTHER DEVICE, SUCH
AS A CONDENSER, IN THE CLOSED CIRCUIT.  AND THE FACT THAT SO EMINENT A
SCIENTIST, THE ONE WHO IN FACT POSED THE PROBLEM AND ITS DIFFICULTIES,
DID NOT SEE THE NEED FOR EXTENDING THIS "INDEPENDENT TUNING" (TO USE
MARCONI'S PHRASE) TO THE CLOSED CIRCUIT, SO AS TO BRING IT THUS IN TUNE
WITH THE OPEN ONE, WAS ENOUGH TO CONVINCE MR. JUSTICE PARKER, AND I
THINK RIGHTLY, THAT WHAT MARCONI DID OVER LODGE WAS NOT SO OBVIOUS AS
TO BE WITHOUT SUBSTANCE. 

IN SHORT, MR. JUSTICE PARKER FOUND THE GIST OF MARCONI'S INVENTION,
NOT IN MERE APPLICATION OF THE GENERAL PRINCIPLE OR PRINCIPLES OF
RESONANCE TO A FOUR-CIRCUIT SYSTEM, OR IN THE USE OF FOUR CIRCUITS OR
THE SUBSTITUTION OF TWO FOR ONE IN EACH OR EITHER STATION; BUT, AS
PETITIONER NOW CONTENDS, IN RECOGNITION OF THE PRINCIPLE THAT, WHETHER
IN THE TRANSMITTER OR THE RECEIVER, ATTAINMENT OF THE MAXIMUM RESONANCE
REQUIRED THAT MEANS FOR TUNING THE CLOSED TO THE OPEN CIRCUIT BE
INSERTED IN BOTH.  THAT RECOGNIZED, THE METHOD OF ACCOMPLISHING THE
ADJUSTMENT WAS OBVIOUS, AND DIFFERENT METHODS, AS BY USING VARIABLE
INDUCTANCE OR A CONDENSER, WERE AVAILABLE.  AS PETITIONER'S REPLY BRIEF
STATES THE MATTER, "THE MARCONI INVENTION WAS NOT THE USE OF A VARIABLE
INDUCTANCE, NOR INDEED ANY OTHER SPECIFIC WAY OF TUNING AN ANTENNA -
BEFORE MARCONI IT WAS KNOWN THAT ELECTRICAL CIRCUITS COULD BE TUNED OR
NOT TUNED, BY INDUCTANCE COILS OR CONDENSERS.  HIS BROAD INVENTION WAS
THE COMBINATION OF A TUNED ANTENNA CIRCUIT AND A TUNED CLOSED
CIRCUIT."  AND IT IS ONLY IN THIS VIEW THAT THE ACTION OF THE PATENT
OFFICE IN FINALLY AWARDING THE PATENT TO MARCONI CAN BE EXPLAINED OR
SUSTAINED, FOR IT ALLOWED CLAIMS BOTH LIMITED TO AND NOT SPECIFYING
VARIABLE INDUCTANCE.  THAT FEATURE WAS ESSENTIAL FOR BOTH CIRCUITS IN
PRINCIPLE, BUT NOT IN THE PARTICULAR METHOD BY WHICH MARCONI
ACCOMPLISHED IT.  AND IT WAS RECOGNITION OF THIS WHICH EVENTUALLY
INDUCED ALLOWANCE OF THE CLAIMS, NOTWITHSTANDING THE PREVIOUS
REJECTIONS ON LODGE, STONE AND OTHER REFERENCES, INCLUDING ALL IN ISSUE
HERE. 

IN THE PERSPECTIVE OF THIS DECADE, MARCONI'S ADVANCE, IN REQUIRING
"INDEPENDENT TUNING," THAT IS, POSITIVE MEANS OF TUNING LOCATED IN BOTH
CLOSED AND OPEN CIRCUITS, SEEMS SIMPLE AND OBVIOUS.  IT WAS SIMPLE. 
BUT, AS IS OFTEN TRUE WITH GREAT INVENTIONS, THE SIMPLEST AND THEREFORE
GENERALLY THE BEST SOLUTION IS NOT OBVIOUS AT THE TIME, THOUGH IT
BECOMES SO IMMEDIATELY IT IS SEEN AND STATED.  LOOKING BACK NOW AT
EDISON'S LIGHT BULB ONE MIGHT THINK IT ABSURD THAT THAT HIGHLY USEFUL
AND BENEFICIAL IDEA HAD NOT BEEN WORKED OUT LONG BEFORE, BY ANYONE WHO
KNEW THE ELEMENTARY LAWS OF RESISTANCE IN THE FIELD OF ELECTRIC
CONDUCTION.  BUT IT WOULD BE SHOCKING, NOTWITHSTANDING THE PRESENTLY
OBVIOUS CHARACTER OF WHAT EDISON DID, FOR ANY COURT NOW TO RULE HE MADE
NO INVENTION. 

THE SAME THING APPLIES TO MARCONI.  THOUGH WHAT HE DID WAS SIMPLE, IT
WAS BRILLIANT, AND IT BROUGHT BIG RESULTS.  ADMITTEDLY THE MARGIN OF
DIFFERENCE BETWEEN HIS CONCEPTION AND THOSE OF THE REFERENCES,
ESPECIALLY LODGE AND STONE, WAS SMALL.  IT CAME DOWN TO THIS, THAT
LODGE SAW THE NEED FOR AND USED MEANS FOR PERFORMING THE FUNCTION WHICH
VARIABLE INDUCTANCE ACHIEVES IN THE ANTENNA OR OPEN CIRCUIT, STONE DID
THE SAME THING IN THE CLOSED CIRCUIT, BUT MARCONI FIRST DID IT IN
BOTH.  SLIGHT AS EACH OF THESE STEPS MAY SEEM NOW, IN DEPARTURE FROM
THE OTHERS, IT IS AS TRUE AS IT WAS IN 1911, WHEN MR. JUSTICE PARKER
WROTE, THAT THE VERY FACT MEN OF THE EMINENCE OF LODGE AND STONE SAW
THE NECESSITY OF TAKING THE STEP FOR ONE CIRCUIT BUT NOT FOR THE OTHER
IS STRONG, IF NOT CONCLUSIVE, EVIDENCE THAT TAKING IT FOR BOTH CIRCUITS
WAS NOT OBVIOUS.  IF THIS WAS SO CLEARLY INDICATED THAT ANYONE SKILLED
IN THE ART SHOULD HAVE SEEN IT, THE UNANSWERED AND I THINK UNANSWERABLE
QUESTION REMAINS, WHY DID NOT LODGE AND STONE, BOTH ASSIDUOUSLY
SEARCHING FOR THE SECRET AND BOTH PREEMINENT IN THE FIELD, RECOGNIZE
THE FACT AND MAKE THE APPLICATION?  THE BEST EVIDENCE OF THE NOVELTY OF
MARCONI'S ADVANCE LIES NOT IN ANY JUDGMENT, SCIENTIFIC OR LAY, WHICH
COULD NOW BE FORMED ABOUT IT.  IT IS RATHER IN THE CAREFUL, CONSIDERED
AND SUBSTANTIALLY CONTEMPORANEOUS JUDGMENTS, FORMED AND RENDERED BY
BOTH THE PATENT TRIBUNALS AND THE COURTS WHEN YEARS HAD NOT DISTORTED
EITHER THE SCIENTIFIC OR THE LEGAL PERSPECTIVE OF THE DAY WHEN THE
INVENTION WAS MADE.  ALL OF THE REFERENCES NOW USED TO INVALIDATE
MARCONI WERE IN ISSUE, AT ONE TIME OR ANOTHER, BEFORE THESE TRIBUNALS,
THOUGH NOT ALL OF THEM WERE PRESENTED TO EACH.  THEIR UNANIMOUS
CONCLUSION, BACKED BY THE FACTS WHICH HAVE BEEN STATED, IS MORE
PERSUASIVE THAN THE MOST COMPETENT CONTRARY OPINION FORMED NOW ABOUT
THE MATTER COULD BE. 

IT REMAINS TO GIVE FURTHER ATTENTION CONCERNING STONE.  ADMITTEDLY
HIS ORIGINAL APPLICATION DID NOT REQUIRE TUNING, IN MARCONI'S SENSE, OF
THE ANTENNA CIRCUIT, THOUGH IT SPECIFIED THIS FOR THE CLOSED ONE.  HE
INCLUDED VARIABLE INDUCTANCE IN THE LATTER, BUT NOT IN THE FORMER.  HIS
DEVICE THEREFORE WAS, IN THIS RESPECT, EXACTLY THE CONVERSE OF LODGE. 
BUT IT IS SAID HIS OMISSION TO SPECIFY THE FUNCTION (AS DISTINGUISHED
FROM THE APPARATUS WHICH PERFORMED IT) FOR THE ANTENNA CIRCUIT WAS NOT
IMPORTANT, BECAUSE THE FUNCTION WAS IMPLICIT IN THE SPECIFICATION AND
THEREFORE SUPPORTED HIS LATER AMENDMENT, FILED MORE THAN A YEAR
FOLLOWING MARCONI'S DATE, EXPRESSLY SPECIFYING THIS FEATURE FOR THE
OPEN CIRCUIT. 

SUBSTANTIALLY THE SAME ANSWER MAY BE MADE TO THIS AS MR. JUSTICE
PARKER MADE TO THE CLAIM BASED ON LODGE.  TUNING BOTH CIRCUITS, THAT
IS, INCLUDING IN EACH INDEPENDENT MEANS FOR VARIABLE ADJUSTMENT, WAS
THE VERY GIST OF MARCONI'S INVENTION.  AND IT WAS WHAT MADE POSSIBLE
THE HIGHLY SUCCESSFUL RESULT.  IT SEEMS STRANGE THAT ONE WHO SAW NOT
ONLY THE PROBLEM, BUT THE COMPLETE SOLUTION, SHOULD SPECIFY ONLY HALF
WHAT WAS NECESSARY TO ACHIEVE IT, NEGLECTING TO MENTION THE OTHER AND
EQUALLY IMPORTANT HALF AS WELL, PARTICULARLY WHEN, AS IS CLAIMED, THE
TWO WERE SO NEARLY IDENTICAL EXCEPT FOR LOCATION.  THE VERY OMISSION OF
EXPLICIT STATEMENT OF SO IMPORTANT AND, IT IS CLAIMED, SO OBVIOUS A
FEATURE IS EVIDENCE IT WAS NEITHER OBVIOUS NOR CONCEIVED.  AND THE
FORCE OF THE OMISSION IS MAGNIFIED BY THE FACT THAT ITS AUTHOR, WHEN HE
FULLY RECOGNIZED ITS EFFECT, FOUND IT NECESSARY TO MAKE AMENDMENT TO
INCLUDE IT, AFTER THE FEATURE WAS EXPRESSLY AND FULLY DISCLOSED BY
ANOTHER.  AMENDMENT UNDER SUCH CIRCUMSTANCES, PARTICULARLY WITH RESPECT
TO A MATTER WHICH GOES TO THE ROOT RATHER THAN AN INCIDENT OR A DETAIL
OF THE INVENTION, IS ALWAYS TO BE REGARDED CRITICALLY AND, WHEN THE
FOUNDATION CLAIMED FOR IT IS IMPLICIT EXISTENCE IN THE ORIGINAL
APPLICATION, AS IT MUST BE, THE CLEAREST AND MOST CONVINCING EVIDENCE
SHOULD BE REQUIRED WHEN THE EFFECT IS TO GIVE PRIORITY, BY BACKWARD
RELATION, OVER ANOTHER APPLICATION INTERMEDIATELY FILED. 

APART FROM THE SIGNIFICANCE OF OMITTING TO EXPRESS A FEATURE SO
IMPORTANT, I AM UNABLE TO FIND CONVINCING EVIDENCE THE IDEA WAS
IMPLICIT IN STONE AS HE ORIGINALLY FILED.  HIS DISTINCTION BETWEEN
"NATURAL" AND "FORCED" OSCILLATIONS SEEMS TO ME TO PROVE, IN THE LIGHT
OF HIS ORIGINAL DISCLOSURE, NOT THAT "TUNING" OF THE ANTENNA CIRCUIT AS
MARCONI REQUIRED THIS WAS IMPLICIT, BUT RATHER THAT IT WAS NOT PRESENT
IN THAT APPLICATION AT ALL.  IT IS TRUE HE SOUGHT, AS MARCONI DID, TO
MAKE THE ANTENNA CIRCUIT AT THE TRANSMITTER THE SOURCE OF WAVES OF BUT
A SINGLE PERIODICITY AND THE SAME CIRCUIT AT THE RECEIVER AN ABSORBER
ONLY OF THE WAVES SO TRANSMITTED.  BUT THE METHODS THEY USED WERE NOT
THE SAME.  STONE'S METHOD WAS TO PROVIDE "WHAT ARE SUBSTANTIALLY FORCED
VIBRATIONS" IN THE TRANSMITTER'S ANTENNA CIRCUIT AND, AT THE RECEIVER,
TO IMPOSE "BETWEEN THE VERTICAL CONDUCTOR (THE ANTENNA)  ...  AND THE
TRANSLATING DEVICES (IN THE CLOSED CIRCUIT)(OTHER) RESONANT CIRCUITS
ATTUNED TO THE PARTICULAR FREQUENCY OF THE ELECTRO-MAGNETIC WAVES WHICH
IT IS DESIRED TO HAVE OPERATE THE TRANSLATING DEVICES."  IN SHORT, HE
PROVIDED FOR "TUNING," AS MARCONI DID, THE TRANSMITTER'S CLOSED
CIRCUIT, THE RECEIVER'S CLOSED CIRCUIT AND THE INTERMEDIATE CIRCUITS
WHICH HE INTERPOSED IN THE RECEIVER BETWEEN THE OPEN OR ANTENNA ONE AND
THE CLOSED ONE.  BUT NOWHERE DID HE PROVIDE FOR OR SUGGEST "TUNING," AS
MARCONI DID AND IN HIS MEANING, THE ANTENNA CIRCUIT OF THE TRANSMITTER
OR THE ANTENNA CIRCUIT OF THE RECEIVER.  FOR RESONANCE IN THE FORMER HE
DEPENDED UPON THE INTRODUCTION, FROM THE CLOSED CIRCUIT, OF
"SUBSTANTIALLY FORCED ELECTRIC VIBRATIONS" AND FOR SELECTIVITY IN THE
LATTER HE USED THE INTERMEDIATE TUNED CIRCUITS.  STONE AND MARCONI USED
THE SAME MEANS FOR CREATING PERSISTENT OSCILLATION, NAMELY, THE USE OF
THE SEPARATE CLOSED CIRCUIT; AND IN THIS BOTH ALSO DEVELOPED SINGLE
PERIODICITY TO THE EXTENT THE VARIABLE INDUCTANCE INCLUDED THERE AND
THERE ONLY COULD DO SO.  BUT WHILE BOTH CREATED PERSISTENT OSCILLATION
IN THE SAME WAY, MARCONI WENT FARTHER THAN STONE WITH SINGLE
PERIODICITY AND SECURED ENHANCEMENT OF THIS BY PLACING MEANS FOR TUNING
IN THE ANTENNA CIRCUIT, WHICH ADMITTEDLY STONE NOWHERE EXPRESSLY
REQUIRED IN HIS ORIGINAL APPLICATION.  AND, SINCE THIS IS THE GIST OF
THE INVENTION IN ISSUE AND OF THE DIFFERENCE BETWEEN THE TWO, IT WILL
NOT DO TO DISMISS THIS OMISSION MERELY WITH THE STATEMENT THAT THERE IS
NOTHING TO SUGGEST THAT STONE "DID NOT DESIRE TO HAVE THOSE CIRCUITS
TUNED."  NOR IN MY OPINION DO THE PASSAGES IN THE SPECIFICATIONS RELIED
UPON AS "SUGGESTING" THE "INDEPENDENT" TUNING OF THE ANTENNA CIRCUITS
BEAR OUT THIS INFERENCE. 

WHEN STONE STATES THAT "THE VERTICAL CONDUCTOR AT THE TRANSMITTER
STATION IS MADE THE SOURCE OF ...  WAVES OF BUT A SINGLE PERIODICITY,"
I FIND NOTHING TO SUGGEST THAT THIS IS ACCOMPLISHED BY SPECIALLY TUNING
THAT CIRCUIT, OR, IN FACT, ANYTHING MORE THAN THAT THIS CIRCUIT IS A
GOOD CONDUCTOR SENDING OUT THE SINGLE PERIOD WAVES FORCED INTO IT FROM
THE CLOSED CIRCUIT.  THE SAME IS TRUE OF THE FURTHER STATEMENT THAT
"THE TRANSLATING APPARATUS AT THE RECEIVING STATION IS CAUSED TO BE
SELECTIVELY RESPONSIVE TO WAVES OF BUT A SINGLE PERIODICITY" (WHICH
TUNING THE INTERMEDIATE AND/OR CLOSED CIRCUITS THERE ACCOMPLISHES), SO
THAT "THE TRANSMITTING APPARATUS CORRESPONDS TO A TUNING FORK SENDING
BUT A SINGLE MUSICAL TONE, AND THE RECEIVING APPARATUS CORRESPONDS TO
AN ACOUSTIC RESONATOR CAPABLE OF ABSORBING THE ENERGY OF THAT SINGLE
SIMPLE MUSICAL TONE ONLY."  THIS MEANS NOTHING MORE THAN THAT THE
TRANSMITTER, WHICH INCLUDES THE ANTENNA, AND THE RECEIVER, WHICH ALSO
INCLUDES THE ANTENNA, SEND OUT AND RECEIVE RESPECTIVELY A SINGLE PERIOD
WAVE.  IT DOES NOT MEAN THAT THE ANTENNA, IN EITHER STATION, WAS TUNED,
IN MARCONI'S SENSE, NOR DOES IT SUGGEST THIS. 

THE SAME IS TRUE OF THE OTHER PASSAGES RELIED UPON BY THE COURT FOR
SUGGESTION.  NO WORD OR HINT CAN BE FOUND IN THEM THAT STONE INTENDED
OR CONTEMPLATED INDEPENDENTLY TUNING THE ANTENNA.  THEY MERELY
SUGGESTED, ON THE ONE HAND, THAT WHEN "THE APPARATUS" AT THE RECEIVING
STATION IS PROPERLY TUNED TO A PARTICULAR TRANSMITTER, IT WILL RECEIVE
SELECTIVELY MESSAGES FROM THE LATTER AND, FURTHER, THAT THE OPERATOR
MAY AT WILL ADJUST "THE APPARATUS AT HIS COMMAND" SO AS TO COMMUNICATE
WITH ANY ONE OF SEVERAL SENDING STATIONS; ON THE OTHER HAND, THAT "ANY
SUITABLE DEVICE" MAY BE USED AT THE TRANSMITTER "TO DEVELOP THE SIMPLE
HARMONIC FORCE IMPRESSED UPON" THE ANTENNA.  "THE APPARATUS," AS USED
IN THE STATEMENTS CONCERNING THE ADJUSTMENTS AT THE RECEIVING STATION,
CLEARLY MEANS "THE APPARATUS AT HIS COMMAND," THAT IS, THE WHOLE OF
THAT STATION'S EQUIPMENT, WHICH CONTAINED IN THE INTERMEDIATE AND
CLOSED CIRCUITS, BUT NOT IN THE OPEN ONE, THE MEANS FOR MAKING THE
ADJUSTMENTS DESCRIBED.  THERE IS NOTHING WHATEVER TO SUGGEST INCLUDING
A TUNING DEVICE ALSO IN THE OPEN CIRCUIT.  THE STATEMENT CONCERNING THE
USE OF "ANY SUITABLE DEVICE" TO "DEVELOP THE SIMPLE HARMONIC FORCE
IMPRESSED UPON THE VERTICAL WIRE" MIGHT BE TAKEN, IN OTHER CONTEXT,
POSSIBLY TO SUGGEST MAGNIFYING THE IMPRESSED FORCE BY INSERTING A
DEVICE FOR THAT PURPOSE IN THE OPEN CIRCUIT AND THEREFORE TO COME MORE
CLOSELY THAN THE OTHER PASSAGES TO SUGGESTING MARCONI'S IDEA.  BUT SUCH
A CONSTRUCTION WOULD BE WHOLLY STRAINED IN THE ABSENCE OF ANY OTHER
REFERENCE OR SUGGESTION IN THE LONG APPLICATION TO SUCH A PURPOSE. 
STANDING WHOLLY ALONE AS IT DOES, IT WOULD BE GOING FAR TO BASE
ANTICIPATION OF MARCONI'S IDEA UPON THIS LANGUAGE ONLY.  THE MORE
REASONABLE AND, IN VIEW OF THE TOTAL ABSENCE OF SUGGESTION ELSEWHERE,
THE ONLY TENABLE VIEW IS THAT THE LANGUAGE WAS INTENDED TO SAY, NOT
THAT STONE CONTEMPLATED INCLUDING ANY DEVICE FOR TUNING IN THE OPEN
CIRCUIT, BUT THAT HE LEFT TO THE MECHANIC OR BUILDER THE CHOICE OF THE
VARIOUS DEVICES WHICH MIGHT BE USED, ACCORDING TO PREFERENCE, TO CREATE
OR "DEVELOP," IN THE CLOSED CIRCUIT, THE FORCE TO BE IMPRESSED UPON THE
ANTENNA. 

FINALLY, STONE WAS NO NOVICE.  HE TOO WAS "A VERY EXPERT PERSON AND
ONE OF THE BEST MEN IN THE ART."  NATIONAL ELECTRIC SIGNALLING CO. V.
TELEFUNKEN WIRELESS TEL. CO., 209 F. 856, 864(D.C.).  HE KNEW THE
DIFFERENCE BETWEEN TUNED AND UNTUNED CIRCUITS, HOW TO DESCRIBE THEM,
AND HOW TO APPLY THEM WHEN HE WANTED TO DO SO.  HE USED THIS KNOWLEDGE
WHEN HE SPECIFIED INCLUDING MEANS FOR TUNING IN HIS CLOSED CIRCUIT.  HE
DID NOT USE IT TO SPECIFY SIMILARLY TUNING THE OPEN ONE.  THE OMISSION,
IN SUCH CIRCUMSTANCES, COULD HARDLY HAVE BEEN INTENTIONAL.  IN MY
OPINION HE DELIBERATELY SELECTED AN APERIODIC AERIAL, ONE TO WHICH THE
MANY RECEIVING CIRCUITS HIS APPLICATION CONTEMPLATED COULD BE ADJUSTED
AND ONE WHICH WOULD CARRY TO THEM, FROM HIS TRANSMITTER'S TUNED
PERIODICITY AND BY ITS FORCE ALONE, WHAT IT SENT FORWARD.  IN SHORT,
STONE DELIBERATELY SELECTED AN UNTUNED ANTENNA, A TUNED CLOSED CIRCUIT,
AND CONTROLLED THE PERIODICITY OF BOTH, NOT BY INDEPENDENT MEANS IN
EACH MAKING THEM MUTUALLY AND RECIPROCALLY ADJUSTABLE, BUT BY
IMPRESSING UPON THE UNTUNED ANTENNA THE FORCED PERIODICITY OF THE
CLOSED CIRCUIT.    IT MAY BE THAT BY HIS METHOD HE ATTAINED RESULTS
COMPARABLE, OR NEARLY SO, TO THOSE MARCONI ACHIEVED.  THE RECORD DOES
NOT SHOW THAT HE DID SO PRIOR TO HIS AMENDMENT.  IF HE DID, THAT ONLY
GOES TO SHOW HE ACCOMPLISHED IN CONSEQUENCE WHAT MARCONI DID, BUT BY A
DIFFERENT METHOD.  THAT BOTH HAD THE SAME "BROAD PURPOSE" OF PROVIDING
A HIGH DEGREE OF TUNING AT BOTH STATIONS, AND THAT BOTH MAY HAVE
ACCOMPLISHED THIS OBJECT SUBSTANTIALLY, DOES NOT SHOW THAT THEY DID SO
IN THE SAME WAY OR THAT STONE, BY HIS DIFFERENT METHOD, ANTICIPATED
MARCONI. 

IN MY OPINION THEREFORE STONE'S AMENDMENT WAS NOT SUPPORTED BY
ANYTHING IN HIS ORIGINAL APPLICATION AND SHOULD NOT HAVE BEEN ALLOWED. 
AS PETITIONER SAYS, IT ADDED THE NEW FEATURE OF TUNING THE ANTENNA AND
IN THAT RESPECT RESEMBLED THE AMENDMENT OF A FESSENDEN APPLICATION "TO
INCLUDE THE TUNING OF THE CLOSED CIRCUIT."  NATIONAL ELECTRIC
SIGNALLING CO. V. TELEFUNKEN WIRELESS TEL. CO., SUPRA. THE AMENDMENT
HERE SHOULD RECEIVE THE SAME FATE AS BEFELL THE ONE THERE INVOLVED. 

STONE'S LETTERS TO BAKER, QUOTED IN THE COURT'S OPINION, SHOW NO MORE
THAN HIS ORIGINAL APPLICATION DISCLOSED.  THERE IS NO HINT OR
SUGGESTION IN THEM OF TUNING THE ANTENNA CIRCUITS "INDEPENDENTLY" AS
MARCONI DID.  AND THE CORRESPONDENCE GIVES FURTHER PROOF HE
CONTEMPLATED INTRODUCING THE INDUCTANCE COIL (OR A DEVICE EQUIVALENT IN
FUNCTION) INTO THE CLOSED CIRCUIT, BUT EXPRESSED NO IDEA OF DOING THE
SAME THING IN THE OPEN ONE. 

IN MY OPINION THEREFORE THE JUDGMENT SHOULD BE REVERSED, IN SO FAR AS
IT HOLDS MARCONI'S BROAD CLAIMS INVALID. 

FN1  MARCONI V. BRITISH RADIO TEL. & TEL. CO., 27 T.L.R. 274; MARCONI
V. HELSBY WIRELESS TEL. CO., 30 T.L.R. 688; SOCIETE MARCONI V. SOCIETE
GENERALE, ETC., CIVIL TRIBUNAL OF THE SEINE, 3D CHAMBER, DEC. 24, 1912;
MARCONI WIRELESS TELEGRAPH CO. V. NATIONAL ELECTRIC SIGNALLING CO., 213
F. 815(D.C.); MARCONI WIRELESS TELEGRAPH CO. V. KILBOURNE & CLARK MFG.
CO., 265 F. 644(C.C.A.), AFF'G 239 F. 328(D.C.). 

FN2  CF., E.G., 14 ENCYC.  BRITANNICA (14TH ED.)  869. 

FN3  HIS EARLIEST AMERICAN PATENT, U.S. PATENT NO. 586,193, GRANTED
ON JULY 13, 1897, LATER BECOMING REISSUE PATENT NO. 11,913, IS NOT IN
SUIT HERE.  THAT PATENT DID NOT EMBRACE MANY OF THE CRUCIAL CLAIMS HERE
INVOLVED AND ITS PRODUCT CANNOT COMPARE IN COMMERCIAL USEFULNESS WITH
THAT OF THE PATENT IN SUIT. 

FN4  COURTS CLOSER TO IT CHRONOLOGICALLY THAN WE ARE HAVE
CHARACTERIZED IT AS A "CONSPICUOUS ADVANCE IN WIRELESS TELEGRAPHY"; "A
REAL ACCOMPLISHMENT" AND THE IDEAS INVOLVED IN THE PATENT WERE SAID TO
"HAVE PROVEN OF GREAT VALUE TO THE WORLD," TO HAVE BROUGHT ABOUT "AN
ENTIRELY NEW AND USEFUL RESULT," "A NEW AND VERY IMPORTANT INDUSTRIAL
RESULT" AND "A WONDERFUL CONQUEST."  "THE MARCONI PATENT STANDS OUT AS
AN UNASSAILABLE MONUMENT UNTIL NEW DISCOVERIES ARE MADE."  CF. THE
AUTHORITIES CITED IN NOTE 1, SUPRA. 

FN5  HE WAS ONLY TWENTY-SIX YEARS OLD AT THE TIME HE APPLIED FOR THE
PATENT IN SUIT, BUT HE HAD ALREADY MADE SUBSTANTIAL CONTRIBUTIONS TO
THE FIELD. 

FN6  U.S. PATENT NO. 763,772; BRITISH PATENT NO. 7777 OF 1900; FRENCH
PATENT NO. 305,060 OF NOV. 3, 1900. 

FN7  BRITISH PATENT TO LODGE NO. 29,505. 

FN8  CF. NOTE 3 SUPRA. 

FN9  U.S. PATENT TO TESLA NO. 649,621, MAY 15, 1900, DIVISION OF
645,576, MARCH 20, 1900(FILED SEPT. 2, 1897). 

FN10  CF. TEXT INFRA. 

FN11  CF. NOTE 1 SUPRA. 

FN12  IBID. 

FN13  TESLA IN FACT DID NOT USE HERTZIAN WAVES.  HIS IDEA WAS TO MAKE
THE ETHER A CONDUCTOR FOR LONG DISTANCES BY USING EXTREMELY HIGH
VOLTAGE, 20,000,000 TO 30,000,000 VOLTS, AND EXTREMELY HIGH ALTITUDES,
30,000 TO 40,000 FEET OR MORE, TO SECURE TRANSMISSION FROM AERIAL TO
AERIAL.  BALLOONS, WITH WIRES ATTACHED REACHING TO THE GROUND, WERE HIS
SUGGESTED AERIALS.  HIS SYSTEM WAS REALLY ONE FOR TRANSMITTING POWER
FOR MOTORS, LIGHTING, ETC., TO "ANY TERRESTRIAL DISTANCE," THOUGH HE
INCIDENTALLY MENTIONS "INTELLIGIBLE MESSAGES."  AS HE DID NOT USE
HERTZIAN WAVES, HE HAD NO SUCH PROBLEM OF SELECTIVITY AS MARCONI,
LODGE, STONE AND OTHERS WERE WORKING ON LATER. 
..END :














HIRABAYASHI V. UNITED STATES, 320 U.S. 81 


NO. 870.  ARGUED MAY 10, 11, 1943.  - DECIDED JUNE 21, 1943.  -
AFFIRMED. 


1.  WHERE A DEFENDANT IS CONVICTED ON TWO COUNTS OF AN INDICTMENT AND
THE SENTENCES ARE ORDERED TO RUN CONCURRENTLY, IT IS UNNECESSARY ON
REVIEW TO CONSIDER THE VALIDITY OF THE SENTENCE ON BOTH OF THE COUNTS
IF THE SENTENCE ON ONE OF THEM IS SUSTAINABLE.  P. 85. 

2.  PURSUANT TO EXECUTIVE ORDER NO. 9066, PROMULGATED BY THE
PRESIDENT ON FEBRUARY 19, 1942 WHILE THE UNITED STATES WAS AT WAR WITH
JAPAN, THE MILITARY COMMANDER OF THE WESTERN DEFENSE COMMAND
PROMULGATED AN ORDER REQUIRING, INTER ALIA, THAT ALL PERSONS OF
JAPANESE ANCESTRY WITHIN A DESIGNATED MILITARY AREA "BE WITHIN THEIR
PLACE OF RESIDENCE BETWEEN THE HOURS OF 8 P.M. AND 6 A.M."  APPELLANT,
A UNITED STATES CITIZEN OF JAPANESE ANCESTRY, WAS CONVICTED IN THE
FEDERAL DISTRICT COURT FOR VIOLATION OF THIS CURFEW ORDER.  HELD: 

(1)  BY THE ACT OF MARCH 21, 1942, CONGRESS RATIFIED AND CONFIRMED
EXECUTIVE ORDER NO. 9066, AND THEREBY AUTHORIZED AND IMPLEMENTED SUCH
CURFEW ORDERS AS THE MILITARY COMMANDER SHOULD PROMULGATE PURSUANT TO
THAT EXECUTIVE ORDER.  P. 91. 

(2)  IT WAS WITHIN THE CONSTITUTIONAL AUTHORITY OF CONGRESS AND THE
EXECUTIVE, ACTING TOGETHER, TO PRESCRIBE THIS CURFEW ORDER AS AN
EMERGENCY WAR MEASURE.  P. 92. 

IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES, THERE WAS
SUBSTANTIAL BASIS FOR THE CONCLUSION, IN WHICH CONGRESS AND THE
MILITARY COMMANDER UNITED, THAT THE CURFEW AS APPLIED WAS A PROTECTIVE
MEASURE NECESSARY TO MEET THE THREAT OF SABOTAGE AND ESPIONAGE WHICH
WOULD SUBSTANTIALLY AFFECT THE WAR EFFORT AND WHICH MIGHT REASONABLY BE
EXPECTED TO AID A THREATENED ENEMY INVASION.  P. 95. 

(3)  THE CURFEW ORDER DID NOT UNCONSTITUTIONALLY DISCRIMINATE AGAINST
CITIZENS OF JAPANESE ANCESTRY.  P. 101. 

(A)  THE FIFTH AMENDMENT CONTAINS NO EQUAL PROTECTION CLAUSE AND IT
RESTRAINS ONLY SUCH DISCRIMINATORY LEGISLATION BY CONGRESS AS AMOUNTS
TO A DENIAL OF DUE PROCESS.  P. 100. 

(B)  THE CURFEW ORDER AS APPLIED, AND AT THE TIME IT WAS APPLIED, WAS
WITHIN THE BOUNDARIES OF THE WAR POWER.  P. 102. 

(C)  THE ADOPTION BY THE GOVERNMENT, IN THE CRISIS OF WAR AND OF
THREATENED INVASION, OF MEASURES FOR THE PUBLIC SAFETY, BASED UPON THE
RECOGNITION OF FACTS AND CIRCUMSTANCES WHICH INDICATE THAT A GROUP OF
ONE NATIONAL EXTRACTION MAY MENACE THAT SAFETY MORE THAN OTHERS, IS NOT
TO BE CONDEMNED AS UNCONSTITUTIONAL MERELY BECAUSE IN OTHER AND IN MOST
CIRCUMSTANCES RACIAL DISTINCTIONS ARE IRRELEVANT.  P. 101. 

(D)  AN APPROPRIATE EXERCISE OF THE WAR POWER IS NOT RENDERED INVALID
BY THE FACT THAT IT RESTRICTS THE LIBERTY OF CITIZENS.  P. 99. 

(4)  THE PROMULGATION OF THE CURFEW ORDER BY THE MILITARY COMMANDER
WAS BASED ON NO UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER.  P.
102. 

THE ESSENTIALS OF THE LEGISLATIVE FUNCTION ARE PRESERVED WHEN
CONGRESS PROVIDES THAT A STATUTORY COMMAND SHALL BECOME OPERATIVE UPON
ASCERTAINMENT OF A BASIC CONCLUSION OF FACT BY A DESIGNATED
REPRESENTATIVE OF THE GOVERNMENT.  THE ACT OF MARCH 21, 1942, WHICH
AUTHORIZED THAT CURFEW ORDERS BE MADE PURSUANT TO EXECUTIVE ORDER NO.
9066 FOR THE PROTECTION OF WAR RESOURCES FROM ESPIONAGE AND SABOTAGE,
SATISFIES THOSE REQUIREMENTS.  P. 104. 

HIRABAYASHI V. UNITED STATES. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

RESPONSE TO QUESTIONS CERTIFIED BY THE CIRCUIT COURT OF APPEALS UPON
AN APPEAL TO THAT COURT FROM A CONVICTION IN THE DISTRICT COURT UPON
TWO COUNTS OF AN INDICTMENT CHARGING VIOLATIONS OF ORDERS PROMULGATED
BY THE MILITARY COMMANDER OF THE WESTERN DEFENSE COMMAND.  THIS COURT
DIRECTED THAT THE ENTIRE RECORD BE CERTIFIED SO THAT THE CASE COULD BE
DETERMINED AS IF BROUGHT HERE BY APPEAL.  SEE 46 F.SUPP.  657. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

APPELLANT, AN AMERICAN CITIZEN OF JAPANESE ANCESTRY, WAS CONVICTED IN
THE DISTRICT COURT OF VIOLATING THE ACT OF CONGRESS OF MARCH 21, 1942,
56 STAT. 173, WHICH MAKES IT A MISDEMEANOR KNOWINGLY TO DISREGARD
RESTRICTIONS MADE APPLICABLE BY A MILITARY COMMANDER TO PERSONS IN A
MILITARY AREA PRESCRIBED BY HIM AS SUCH, ALL AS AUTHORIZED BY AN
EXECUTIVE ORDER OF THE PRESIDENT. 

THE QUESTIONS FOR OUR DECISION ARE WHETHER THE PARTICULAR RESTRICTION
VIOLATED, NAMELY THAT ALL PERSONS OF JAPANESE ANCESTRY RESIDING IN SUCH
AN AREA BE WITHIN THEIR PLACE OF RESIDENCE DAILY BETWEEN THE HOURS OF
8:00 P.M. AND 6:00 A.M., WAS ADOPTED BY THE MILITARY COMMANDER IN THE
EXERCISE OF AN UNCONSTITUTIONAL DELEGATION BY CONGRESS OF ITS
LEGISLATIVE POWER, AND WHETHER THE RESTRICTION UNCONSTITUTIONALLY
DISCRIMINATED BETWEEN CITIZENS OF JAPANESE ANCESTRY AND THOSE OF OTHER
ANCESTRIES IN VIOLATION OF THE FIFTH AMENDMENT. 

THE INDICTMENT IS IN TWO COUNTS.  THE SECOND CHARGES THAT APPELLANT,
BEING A PERSON OF JAPANESE ANCESTRY, HAD ON A SPECIFIED DATE, CONTRARY
TO A RESTRICTION PROMULGATED BY THE MILITARY COMMANDER OF THE WESTERN
DEFENSE COMMAND, FOURTH ARMY, FAILED TO REMAIN IN HIS PLACE OF
RESIDENCE IN THE DESIGNATED MILITARY AREA BETWEEN THE HOURS OF 8:00
O'CLOCK P.M. AND 6:00 A.M.  THE FIRST COUNT CHARGES THAT APPELLANT, ON
MAY 11 AND 12, 1942, HAD, CONTRARY TO A CIVILIAN EXCLUSION ORDER ISSUED
BY THE MILITARY COMMANDER, FAILED TO REPORT TO THE CIVIL CONTROL
STATION WITHIN THE DESIGNATED AREA, IT APPEARING THAT APPELLANT'S
REQUIRED PRESENCE THERE WAS A PRELIMINARY STEP TO THE EXCLUSION FROM
THAT AREA OF PERSONS OF JAPANESE ANCESTRY. 

BY DEMURRER AND PLEA IN ABATEMENT, WHICH THE COURT OVERRULED (46
F.SUPP.  657), APPELLANT ASSERTED THAT THE INDICTMENT SHOULD BE
DISMISSED BECAUSE HE WAS AN AMERICAN CITIZEN WHO HAD NEVER BEEN A
SUBJECT OF AND HAD NEVER BORNE ALLEGIANCE TO THE EMPIRE OF JAPAN, AND
ALSO BECAUSE THE ACT OF MARCH 21, 1942, WAS AN UNCONSTITUTIONAL
DELEGATION OF CONGRESSIONAL POWER.  ON THE TRIAL TO A JURY IT APPEARED
THAT APPELLANT WAS BORN IN SEATTLE IN 1918, OF JAPANESE PARENTS WHO HAD
COME FROM JAPAN TO THE UNITED STATES, AND WHO HAD NEVER AFTERWARD
RETURNED TO JAPAN; THAT HE WAS EDUCATED IN THE WASHINGTON PUBLIC
SCHOOLS AND AT THE TIME OF HIS ARREST WAS A SENIOR IN THE UNIVERSITY OF
WASHINGTON; THAT HE HAD NEVER BEEN IN JAPAN OR HAD ANY ASSOCIATION WITH
JAPANESE RESIDING THERE. 

THE EVIDENCE SHOWED THAT APPELLANT HAD FAILED TO REPORT TO THE CIVIL
CONTROL STATION ON MAY 11 OR MAY 12, 1942, AS DIRECTED, TO REGISTER FOR
EVACUATION FROM THE MILITARY AREA.  HE ADMITTED FAILURE TO DO SO, AND
STATED IT HAD AT ALL TIMES BEEN HIS BELIEF THAT HE WOULD BE WAIVING HIS
RIGHTS AS AN AMERICAN CITIZEN BY SO DOING.  THE EVIDENCE ALSO SHOWED
THAT FOR LIKE REASON HE WAS AWAY FROM HIS PLACE OF RESIDENCE AFTER 8:00
P.M. ON MAY 9, 1942.  THE JURY RETURNED A VERDICT OF GUILTY ON BOTH
COUNTS AND APPELLANT WAS SENTENCED TO IMPRISONMENT FOR A TERM OF THREE
MONTHS ON EACH, THE SENTENCES TO RUN CONCURRENTLY. 

ON APPEAL THE COURT OF APPEALS FOR THE NINTH CIRCUIT CERTIFIED TO US
QUESTIONS OF LAW UPON WHICH IT DESIRED INSTRUCTIONS FOR THE DECISION OF
THE CASE.  SEE SEC. 239 OF THE JUDICIAL CODE AS AMENDED, 28 U.S.C. SEC.
346.  ACTING UNDER THE AUTHORITY CONFERRED UPON US BY THAT SECTION WE
ORDERED THAT THE ENTIRE RECORD BE CERTIFIED TO THIS COURT SO THAT WE
MIGHT PROCEED TO A DECISION OF THE MATTER IN CONTROVERSY IN THE SAME
MANNER AS IF IT HAD BEEN BROUGHT HERE BY APPEAL.  SINCE THE SENTENCES
OF THREE MONTHS EACH IMPOSED BY THE DISTRICT COURT ON THE TWO COUNTS
WERE ORDERED TO RUN CONCURRENTLY, IT WILL BE UNNECESSARY TO CONSIDER
QUESTIONS RAISED WITH RESPECT TO THE FIRST COUNT IF WE FIND THAT THE
CONVICTION ON THE SECOND COUNT, FOR VIOLATION OF THE CURFEW ORDER, MUST
BE SUSTAINED.  BROOKS V. UNITED STATES, 267 U.S. 432, 441; GORIN V.
UNITED STATES, 312 U.S. 19, 33. 

THE CURFEW ORDER WHICH APPELLANT VIOLATED, AND TO WHICH THE SANCTION
PRESCRIBED BY THE ACT OF CONGRESS HAS BEEN DEEMED TO ATTACH, PURPORTED
TO BE ISSUED PURSUANT TO AN EXECUTIVE ORDER OF THE PRESIDENT.  IN
PASSING UPON THE AUTHORITY OF THE MILITARY COMMANDER TO MAKE AND
EXECUTE THE ORDER, IT BECOMES NECESSARY TO CONSIDER IN SOME DETAIL THE
OFFICIAL ACTION WHICH PRECEDED OR ACCOMPANIED THE ORDER AND FROM WHICH
IT DERIVES ITS PURPORTED AUTHORITY. 

ON DECEMBER 8, 1941, ONE DAY AFTER THE BOMBING OF PEARL HARBOR BY A
JAPANESE AIR FORCE, CONGRESS DECLARED WAR AGAINST JAPAN.  55 STAT.
795.  ON FEBRUARY 19, 1942, THE PRESIDENT PROMULGATED EXECUTIVE ORDER
NO. 9066.  7 FEDERAL REGISTER 1407.  THE ORDER RECITED THAT "THE
SUCCESSFUL PROSECUTION OF THE WAR REQUIRES EVERY POSSIBLE PROTECTION
AGAINST ESPIONAGE AND AGAINST SABOTAGE TO NATIONAL-DEFENSE MATERIAL,
NATIONAL-DEFENSE PREMISES, AND NATIONAL-DEFENSE UTILITIES AS DEFINED IN
OF NOVEMBER 30, 1940, 54 STAT. 1220, AND THE ACT OF AUGUST 21, 1941, 55
STAT. 655."  BY VIRTUE OF THE AUTHORITY VESTED IN HIM AS PRESIDENT AND
AS COMMANDER IN CHIEF OF THE ARMY AND NAVY, THE PRESIDENT PURPORTED TO
"AUTHORIZE AND DIRECT THE SECRETARY OF WAR, AND THE MILITARY COMMANDERS
WHOM HE MAY FROM TIME TO TIME DESIGNATE, WHENEVER HE OR ANY DESIGNATED
COMMANDER DEEMS SUCH ACTION NECESSARY OR DESIRABLE, TO PRESCRIBE
MILITARY AREAS IN SUCH PLACES AND OF SUCH EXTENT AS HE OR THE
APPROPRIATE MILITARY COMMANDER MAY DETERMINE, FROM WHICH ANY OR ALL
PERSONS MAY BE EXCLUDED, AND WITH RESPECT TO WHICH, THE RIGHT OF ANY
PERSON TO ENTER, REMAIN IN, OR LEAVE SHALL BE SUBJECT TO WHATEVER
RESTRICTIONS THE SECRETARY OF WAR OR THE APPROPRIATE MILITARY COMMANDER
MAY IMPOSE IN HIS DISCRETION." 

ON FEBRUARY 20, 1942, THE SECRETARY OF WAR DESIGNATED LT. GENERAL
J.L. DEWITT AS MILITARY COMMANDER OF THE WESTERN DEFENSE COMMAND,
COMPRISING THE PACIFIC COAST STATES AND SOME OTHERS, TO CARRY OUT THERE
THE DUTIES PRESCRIBED BY EXECUTIVE ORDER NO. 9066.  ON MARCH 2, 1942,
GENERAL DEWITT PROMULGATED PUBLIC PROCLAMATION NO. 1.  7 FEDERAL
REGISTER 2320.  THE PROCLAMATION RECITED THAT THE ENTIRE PACIFIC COAST
"BY ITS GEOGRAPHICAL LOCATION IS PARTICULARLY SUBJECT TO ATTACK, TO
ATTEMPTED INVASION BY THE ARMED FORCES OF NATIONS WITH WHICH THE UNITED
STATES IS NOW AT WAR, AND, IN CONNECTION THEREWITH, IS SUBJECT TO
ESPIONAGE AND ACTS OF SABOTAGE, THEREBY REQUIRING THE ADOPTION OF
MILITARY MEASURES NECESSARY TO ESTABLISH SAFEGUARDS AGAINST SUCH ENEMY
OPERATIONS."  IT STATED THAT "THE PRESENT SITUATION REQUIRES AS A
MATTER OF MILITARY NECESSITY THE ESTABLISHMENT IN THE TERRITORY
EMBRACED BY THE WESTERN DEFENSE COMMAND OF MILITARY AREAS AND ZONES
THEREOF"; IT SPECIFIED AND DESIGNATED AS MILITARY AREAS CERTAIN AREAS
WITHIN THE WESTERN DEFENSE COMMAND; AND IT DECLARED THAT "SUCH PERSONS
OR CLASSES OF PERSONS AS THE SITUATION MAY REQUIRE" WOULD, BY
SUBSEQUENT PROCLAMATION, BE EXCLUDED FROM CERTAIN OF THESE AREAS, BUT
MIGHT BE PERMITTED TO ENTER OR REMAIN IN CERTAIN OTHERS, UNDER
REGULATIONS AND RESTRICTIONS TO BE LATER PRESCRIBED.  AMONG THE
MILITARY AREAS SO DESIGNATED BY PUBLIC PROCLAMATION NO. 1 WAS MILITARY
AREA NO. 1, WHICH EMBRACED, BESIDES THE SOUTHERN PART OF ARIZONA, ALL
THE COASTAL REGION OF THE THREE PACIFIC COAST STATES, INCLUDING THE
CITY OF SEATTLE, WASHINGTON, WHERE APPELLANT RESIDED.  MILITARY AREA
NO. 2, DESIGNATED BY THE SAME PROCLAMATION, INCLUDED THOSE PARTS OF THE
COASTAL STATES AND OF ARIZONA NOT PLACED WITHIN MILITARY AREA NO. 1. 

PUBLIC PROCLAMATION NO. 2 OF MARCH 16, 1942, ISSUED BY GENERAL
DEWITT, MADE LIKE RECITALS AND DESIGNATED FURTHER MILITARY AREAS AND
ZONES.  IT CONTAINED LIKE PROVISIONS CONCERNING THE EXCLUSION, BY
SUBSEQUENT PROCLAMATION, OF CERTAIN PERSONS OR CLASSES OF PERSONS FROM
THESE AREAS, AND THE FUTURE PROMULGATION OF REGULATIONS AND
RESTRICTIONS APPLICABLE TO PERSONS REMAINING WITHIN THEM.  7 FEDERAL
REGISTER 2405. 

AN EXECUTIVE ORDER OF THE PRESIDENT, NO. 9102, OF MARCH 18, 1942,
ESTABLISHED THE WAR RELOCATION AUTHORITY, IN THE OFFICE FOR EMERGENCY
MANAGEMENT OF THE EXECUTIVE OFFICE OF THE PRESIDENT; IT AUTHORIZED THE
DIRECTOR OF WAR RELOCATION AUTHORITY TO FORMULATE AND EFFECTUATE A
PROGRAM FOR THE REMOVAL, RELOCATION, MAINTENANCE AND SUPERVISION OF
PERSONS DESIGNATED UNDER EXECUTIVE ORDER NO. 9066, ALREADY REFERRED TO;
AND IT CONFERRED ON THE DIRECTOR AUTHORITY TO PRESCRIBE REGULATIONS
NECESSARY OR DESIRABLE TO PROMOTE THE EFFECTIVE EXECUTION OF THE
PROGRAM.  7 FEDERAL REGISTER 2165. 

CONGRESS, BY THE ACT OF MARCH 21, 1942, PROVIDED:  "THAT WHOEVER
SHALL ENTER, REMAIN IN, LEAVE, OR COMMIT ANY ACT IN ANY MILITARY AREA
OR MILITARY ZONE PRESCRIBED, UNDER THE AUTHORITY OF AN EXECUTIVE ORDER
OF THE PRESIDENT, BY THE SECRETARY OF WAR, OR BY ANY MILITARY COMMANDER
DESIGNATED BY THE SECRETARY OF WAR, CONTRARY TO THE RESTRICTIONS
APPLICABLE TO ANY SUCH AREA OR ZONE OR CONTRARY TO THE ORDER OF THE
SECRETARY OF WAR OR ANY SUCH MILITARY COMMANDER, SHALL, IF IT APPEARS
THAT HE KNEW OR SHOULD HAVE KNOWN OF THE EXISTENCE AND EXTENT OF THE
RESTRICTIONS OR ORDER AND THAT HIS ACT WAS IN VIOLATION THEREOF, BE
GUILTY OF A MISDEMEANOR AND UPON CONVICTION SHALL BE LIABLE" TO FINE OR
IMPRISONMENT, OR BOTH. 

THREE DAYS LATER, ON MARCH 24, 1942, GENERAL DEWITT ISSUED PUBLIC
PROCLAMATION NO. 3.  7 FEDERAL REGISTER 2543.  AFTER REFERRING TO THE
PREVIOUS DESIGNATION OF MILITARY AREAS BY PUBLIC PROCLAMATIONS NOS. 1
AND 2, IT RECITED THAT  "...  THE PRESENT SITUATION WITHIN THESE
MILITARY AREAS AND ZONES REQUIRES AS A MATTER OF MILITARY NECESSITY THE
ESTABLISHMENT OF CERTAIN REGULATIONS PERTAINING TO ALL ENEMY ALIENS AND
ALL PERSONS OF JAPANESE ANCESTRY WITHIN SAID MILITARY AREAS AND ZONES
..."  IT ACCORDINGLY DECLARED AND ESTABLISHED THAT FROM AND AFTER MARCH
27, 1942, "ALL ALIEN JAPANESE, ALL ALIEN GERMANS, ALL ALIEN ITALIANS,
AND ALL PERSONS OF JAPANESE ANCESTRY RESIDING OR BEING WITHIN THE
GEOGRAPHICAL LIMITS OF MILITARY AREA NO. 1  ... SHALL BE WITHIN THEIR
PLACE OF RESIDENCE BETWEEN THE HOURS OF 8:00 P.M. AND 6:00 A.M., WHICH
PERIOD IS HEREINAFTER REFERRED TO AS THE HOURS OF CURFEW."  IT ALSO
IMPOSED CERTAIN OTHER RESTRICTIONS ON PERSONS OF JAPANESE ANCESTRY, AND
PROVIDED THAT ANY PERSON VIOLATING THE REGULATIONS WOULD BE SUBJECT TO
THE CRIMINAL PENALTIES PROVIDED BY THE ACT OF CONGRESS OF MARCH 21,
1942. 

BEGINNING ON MARCH 24, 1942, THE MILITARY COMMANDER ISSUED A SERIES
OF CIVILIAN EXCLUSION ORDERS PURSUANT TO THE PROVISIONS OF PUBLIC
PROCLAMATION NO. 1.  EACH SUCH ORDER RELATED TO A SPECIFIED AREA WITHIN
THE TERRITORY OF HIS COMMAND.  THE ORDER APPLICABLE TO APPELLANT WAS
CIVILIAN EXCLUSION ORDER NO. 57 OF MAY 10, 1942.  7 FEDERAL REGISTER
3725.  IT DIRECTED THAT FROM AND AFTER 12:00 NOON, MAY 16, 1942, ALL
PERSONS OF JAPANESE ANCESTRY, BOTH ALIEN AND NONALIEN, BE EXCLUDED FROM
A SPECIFIED PORTION OF MILITARY AREA NO. 1 IN SEATTLE, INCLUDING
APPELLANT'S PLACE OF RESIDENCE, AND IT REQUIRED A MEMBER OF EACH
FAMILY, AND EACH INDIVIDUAL LIVING ALONE, AFFECTED BY THE ORDER TO
REPORT ON MAY 11 OR MAY 12 TO A DESIGNATED CIVIL CONTROL STATION IN
SEATTLE.  MEANWHILE THE MILITARY COMMANDER HAD ISSUED PUBLIC
PROCLAMATION NO. 4 OF MARCH 27, 1942, WHICH RECITED THE NECESSITY OF
PROVIDING FOR THE ORDERLY EVACUATION AND RESETTLEMENT OF JAPANESE
WITHIN THE AREA, AND PROHIBITED ALL ALIEN JAPANESE AND ALL PERSONS OF
JAPANESE ANCESTRY FROM LEAVING THE MILITARY AREA UNTIL FUTURE ORDERS
SHOULD PERMIT.  7 FEDERAL REGISTER 2601. 

APPELLANT DOES NOT DENY THAT HE KNOWINGLY FAILED TO OBEY THE CURFEW
ORDER AS CHARGED IN THE SECOND COUNT OF THE INDICTMENT, OR THAT THE
ORDER WAS AUTHORIZED BY THE TERMS OF EXECUTIVE ORDER NO. 9066, OR THAT
THE CHALLENGED ACT OF CONGRESS PURPORTS TO PUNISH WITH CRIMINAL
PENALTIES DISOBEDIENCE OF SUCH AN ORDER.  HIS CONTENTIONS ARE ONLY THAT
CONGRESS UNCONSTITUTIONALLY DELEGATED ITS LEGISLATIVE POWER TO THE
MILITARY COMMANDER BY AUTHORIZING HIM TO IMPOSE THE CHALLENGED
REGULATION, AND THAT, EVEN IF THE REGULATION WERE IN OTHER RESPECTS
LAWFULLY AUTHORIZED, THE FIFTH AMENDMENT PROHIBITS THE DISCRIMINATION
MADE BETWEEN CITIZENS OF JAPANESE DESCENT AND THOSE OF OTHER ANCESTRY. 

IT WILL BE EVIDENT FROM THE LEGISLATIVE HISTORY THAT THE ACT OF MARCH
21, 1942, CONTEMPLATED AND AUTHORIZED THE CURFEW ORDER WHICH WE HAVE
BEFORE US.  THE BILL WHICH BECAME THE ACT OF MARCH 21, 1942, WAS
INTRODUCED IN THE SENATE ON MARCH 9TH AND IN THE HOUSE ON MARCH 10TH AT
THE REQUEST OF THE SECRETARY OF WAR WHO, IN LETTERS TO THE CHAIRMAN OF
THE SENATE COMMITTEE ON MILITARY AFFAIRS AND TO THE SPEAKER OF THE
HOUSE, STATED EXPLICITLY THAT ITS PURPOSE WAS TO PROVIDE MEANS FOR THE
ENFORCEMENT OF ORDERS ISSUED UNDER EXECUTIVE ORDER NO. 9066.  THIS
APPEARS IN THE COMMITTEE REPORTS ON THE BILL, WHICH SET OUT IN FULL THE
EXECUTIVE ORDER AND THE SECRETARY'S LETTER.  88 CONG. REC. 2722, 2725;
H.R. REP. NO. 1906, 77TH CONG., 2D SESS.; S. REP. NO. 1171, 77TH CONG.,
2D SESS.  AND EACH OF THE COMMITTEE REPORTS EXPRESSLY MENTIONS CURFEW
ORDERS AS ONE OF THE TYPES OF RESTRICTIONS WHICH IT WAS DEEMED
DESIRABLE TO ENFORCE BY CRIMINAL SANCTIONS.    WHEN THE BILL WAS UNDER
CONSIDERATION, GENERAL DEWITT HAD PUBLISHED HIS PROCLAMATION NO. 1 OF
MARCH 2, 1942, ESTABLISHING MILITARY AREAS NOS. 1 AND 2, AND THAT
PROCLAMATION WAS BEFORE CONGRESS.  S. REP. NO. 1171, 77TH CONG., 2D
SESS., P. 2; SEE ALSO 88 CONG. REC. 2724.  A LETTER OF THE SECRETARY TO
THE CHAIRMAN OF THE HOUSE MILITARY AFFAIRS COMMITTEE, OF MARCH 14,
1942, INFORMED CONGRESS THAT "GENERAL DEWITT IS STRONGLY OF THE OPINION
THAT THE BILL, WHEN ENACTED, SHOULD BE BROAD ENOUGH TO ENABLE THE
SECRETARY OF WAR OR THE APPROPRIATE MILITARY COMMANDER TO ENFORCE
CURFEWS AND OTHER RESTRICTIONS WITHIN MILITARY AREAS AND ZONES"; AND
THAT GENERAL DEWITT HAD "INDICATED THAT HE WAS PREPARED TO ENFORCE
CERTAIN RESTRICTIONS AT ONCE FOR THE PURPOSE OF PROTECTING CERTAIN
VITAL NATIONAL DEFENSE INTERESTS BUT DID NOT DESIRE TO PROCEED UNTIL
ENFORCEMENT MACHINERY HAD BEEN SET UP."  H.R. REP. NO. 1906, 77TH
CONG., 2D SESS., P. 3.  SEE ALSO LETTER OF THE ACTING SECRETARY OF WAR
TO THE CHAIRMAN OF THE SENATE MILITARY AFFAIRS COMMITTEE, MARCH 13,
1942, 88 CONG. REC. 2725. 

THE CHAIRMAN OF THE SENATE MILITARY AFFAIRS COMMITTEE EXPLAINED ON
THE FLOOR OF THE SENATE THAT THE PURPOSE OF THE PROPOSED LEGISLATION
WAS TO PROVIDE MEANS OF ENFORCEMENT OF CURFEW ORDERS AND OTHER MILITARY
ORDERS MADE PURSUANT TO EXECUTIVE ORDER NO. 9066.  HE READ GENERAL
DEWITT'S PUBLIC PROCLAMATION NO. 1, AND STATEMENTS FROM NEWSPAPER
REPORTS THAT "EVACUATION OF THE FIRST JAPANESE ALIENS AND AMERICAN-BORN
JAPANESE" WAS ABOUT TO BEGIN.  HE ALSO STATED TO THE SENATE THAT
"REASONS FOR SUSPECTED WIDESPREAD FIFTH-COLUMN ACTIVITY AMONG JAPANESE"
WERE TO BE FOUND IN THE SYSTEM OF DUAL CITIZENSHIP WHICH JAPAN DEEMED
APPLICABLE TO AMERICANBORN JAPANESE, AND IN THE PROPAGANDA DISSEMINATED
BY JAPANESE CONSULS, BUDDHIST PRIESTS AND OTHER LEADERS, AMONG AMERICAN
BORN CHILDREN OF JAPANESE.  SUCH WAS STATED TO BE THE EXPLANATION OF
THE CONTEMPLATED EVACUATION FROM THE PACIFIC COAST AREA OF PERSONS OF
JAPANESE ANCESTRY, CITIZENS AS WELL AS ALIENS.  88 CONG. REC. 2722-26;
SEE ALSO PP. 2729-30.  CONGRESS ALSO HAD BEFORE IT THE PRELIMINARY
REPORT OF A HOUSE COMMITTEE INVESTIGATING NATIONAL DEFENSE MIGRATION,
OF MARCH 19, 1942, WHICH APPROVED THE PROVISIONS OF EXECUTIVE ORDER NO.
9066, AND WHICH RECOMMENDED THE EVACUATION, FROM MILITARY AREAS
ESTABLISHED UNDER THE ORDER, OF ALL PERSONS OF JAPANESE ANCESTRY,
INCLUDING CITIZENS.  H.R. REP. NO. 1911, 77TH CONG., 2D SESS.  THE
PROPOSED LEGISLATION PROVIDED CRIMINAL SANCTIONS FOR VIOLATION OF
ORDERS, IN TERMS BROAD ENOUGH TO INCLUDE THE CURFEW ORDER NOW BEFORE
US, AND THE LEGISLATIVE HISTORY DEMONSTRATES THAT CONGRESS WAS ADVISED
THAT CURFEW ORDERS WERE AMONG THOSE INTENDED, AND WAS ADVISED ALSO THAT
REGULATION OF CITIZEN AND ALIEN JAPANESE ALIKE WAS CONTEMPLATED. 

THE CONCLUSION IS INESCAPABLE THAT CONGRESS, BY THE ACT OF MARCH 21,
1942, RATIFIED AND CONFIRMED EXECUTIVE ORDER NO. 9066.  PRIZE CASES, 2
BLACK 635, 671; HAMILTON V. DILLIN, 21 WALL.  73, 96-97; UNITED STATES
V. HEINSZEN & CO., 206 U.S. 370, 382-84; TIACO V. FORBES, 228 U.S. 549,
556; ISBRANDTSEN-MOLLER CO. V. UNITED STATES, 300 U.S. 139, 146-48;
SWAYNE & HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 300-03; MASON CO.
V. TAX COMM'N, 302 U.S. 186, 208.  AND SO FAR AS IT LAWFULLY COULD,
CONGRESS AUTHORIZED AND IMPLEMENTED SUCH CURFEW ORDERS AS THE
COMMANDING OFFICER SHOULD PROMULGATE PURSUANT TO THE EXECUTIVE ORDER OF
THE PRESIDENT.  THE QUESTION THEN IS NOT ONE OF CONGRESSIONAL POWER TO
DELEGATE TO THE PRESIDENT THE PROMULGATION OF THE EXECUTIVE ORDER, BUT
WHETHER, ACTING IN COOPERATION, CONGRESS AND THE EXECUTIVE HAVE
CONSTITUTIONAL AUTHORITY TO IMPOSE THE CURFEW RESTRICTION HERE
COMPLAINED OF.  WE MUST CONSIDER ALSO WHETHER, ACTING TOGETHER,
CONGRESS AND THE EXECUTIVE COULD LEAVE IT TO THE DESIGNATED MILITARY
COMMANDER TO APPRAISE THE RELEVANT CONDITIONS AND ON THE BASIS OF THAT
APPRAISAL TO SAY WHETHER, UNDER THE CIRCUMSTANCES, THE TIME AND PLACE
WERE APPROPRIATE FOR THE PROMULGATION OF THE CURFEW ORDER AND WHETHER
THE ORDER ITSELF WAS AN APPROPRIATE MEANS OF CARRYING OUT THE EXECUTIVE
ORDER FOR THE "PROTECTION AGAINST ESPIONAGE AND AGAINST SABOTAGE" TO
NATIONAL DEFENSE MATERIALS, PREMISES AND UTILITIES.  FOR REASONS
PRESENTLY TO BE STATED, WE CONCLUDE THAT IT WAS WITHIN THE
CONSTITUTIONAL POWER OF CONGRESS AND THE EXECUTIVE ARM OF THE
GOVERNMENT TO PRESCRIBE THIS CURFEW ORDER FOR THE PERIOD UNDER
CONSIDERATION AND THAT ITS PROMULGATION BY THE MILITARY COMMANDER
INVOLVED NO UNLAWFUL DELEGATION OF LEGISLATIVE POWER. 

EXECUTIVE ORDER NO. 9066, PROMULGATED IN TIME OF WAR FOR THE DECLARED
PURPOSE OF PROSECUTING THE WAR BY PROTECTING NATIONAL DEFENSE RESOURCES
FROM SABOTAGE AND ESPIONAGE, AND THE ACT OF MARCH 21, 1942, RATIFYING
AND CONFIRMING THE EXECUTIVE ORDER, WERE EACH AN EXERCISE OF THE POWER
TO WAGE WAR CONFERRED ON THE CONGRESS AND ON THE PRESIDENT, AS
COMMANDER IN CHIEF OF THE ARMED FORCES, BY ARTICLES I AND II OF THE
CONSTITUTION.  SEE EX PARTE QUIRIN, 317 U.S. 1, 25-26.  WE HAVE NO
OCCASION TO CONSIDER WHETHER THE PRESIDENT, ACTING ALONE, COULD
LAWFULLY HAVE MADE THE CURFEW ORDER IN QUESTION, OR HAVE AUTHORIZED
OTHERS TO MAKE IT.  FOR THE PRESIDENT'S ACTION HAS THE SUPPORT OF THE
ACT OF CONGRESS, AND WE ARE IMMEDIATELY CONCERNED WITH THE QUESTION
WHETHER IT IS WITHIN THE CONSTITUTIONAL POWER OF THE NATIONAL
GOVERNMENT, THROUGH THE JOINT ACTION OF CONGRESS AND THE EXECUTIVE, TO
IMPOSE THIS RESTRICTION AS AN EMERGENCY WAR MEASURE.  THE EXERCISE OF
THAT POWER HERE INVOLVES NO QUESTION OF MARTIAL LAW OR TRIAL BY
MILITARY TRIBUNAL.  CF. EX PARTE MILLIGAN, 4 WALL.  2; EX PARTE QUIRIN,
SUPRA.  APPELLANT HAS BEEN TRIED AND CONVICTED IN THE CIVIL COURTS AND
HAS BEEN SUBJECTED TO PENALTIES PRESCRIBED BY CONGRESS FOR THE ACTS
COMMITTED. 

THE WAR POWER OF THE NATIONAL GOVERNMENT IS "THE POWER TO WAGE WAR
SUCCESSFULLY."  SEE CHARLES EVANS HUGHES, WAR POWERS UNDER THE
CONSTITUTION, 42 A.B.A. REP. 232, 238.  IT EXTENDS TO EVERY MATTER AND
ACTIVITY SO RELATED TO WAR AS SUBSTANTIALLY TO AFFECT ITS CONDUCT AND
PROGRESS.  THE POWER IS NOT RESTRICTED TO THE WINNING OF VICTORIES IN
THE FIELD AND THE REPULSE OF ENEMY FORCES.  IT EMBRACES EVERY PHASE OF
THE NATIONAL DEFENSE, INCLUDING THE PROTECTION OF WAR MATERIALS AND THE
MEMBERS OF THE ARMED FORCES FROM INJURY AND FROM THE DANGERS WHICH
ATTEND THE RISE, PROSECUTION AND PROGRESS OF WAR.  PRIZE CASES, SUPRA;
MILLER V. UNITED STATES, 11 WALL.  268, 303-14; STEWART V. KAHN, 11
WALL.  493, 506-07; SELECTIVE DRAFT LAW CASES, 245 U.S. 366; MCKINLEY
V. UNITED STATES, 249 U.S. 397; UNITED STATES V. MACINTOSH, 283 U.S.
605, 622-23.  SINCE THE CONSTITUTION COMMITS TO THE EXECUTIVE AND TO
CONGRESS THE EXERCISE OF THE WAR POWER IN ALL THE VICISSITUDES AND
CONDITIONS OF WARFARE, IT HAS NECESSARILY GIVEN THEM WIDE SCOPE FOR THE
EXERCISE OF JUDGMENT AND DISCRETION IN DETERMINING THE NATURE AND
EXTENT OF THE THREATENED INJURY OR DANGER AND IN THE SELECTION OF THE
MEANS FOR RESISTING IT.  EX PARTE QUIRIN, SUPRA, 28-29; CF. PRIZE
CASES, SUPRA, 670; MARTIN V. MOTT, 12 WHEAT.  19, 29.  WHERE, AS THEY
DID HERE, THE CONDITIONS CALL FOR THE EXERCISE OF JUDGMENT AND
DISCRETION AND FOR THE CHOICE OF MEANS BY THOSE BRANCHES OF THE
GOVERNMENT ON WHICH THE CONSTITUTION HAS PLACED THE RESPONSIBILITY OF
WAR-MAKING, IT IS NOT FOR ANY COURT TO SIT IN REVIEW OF THE WISDOM OF
THEIR ACTION OR SUBSTITUTE ITS JUDGMENT FOR THEIRS. 

THE ACTIONS TAKEN MUST BE APPRAISED IN THE LIGHT OF THE CONDITIONS
WITH WHICH THE PRESIDENT AND CONGRESS WERE CONFRONTED IN THE EARLY
MONTHS OF 1942, MANY OF WHICH, SINCE DISCLOSED, WERE THEN PECULIARLY
WITHIN THE KNOWLEDGE OF THE MILITARY AUTHORITIES.  ON DECEMBER 7, 1941,
THE JAPANESE AIR FORCES HAD ATTACKED THE UNITED STATES NAVAL BASE AT
PEARL HARBOR WITHOUT WARNING, AT THE VERY HOUR WHEN JAPANESE DIPLOMATIC
REPRESENTATIVES WERE CONDUCTING NEGOTIATIONS WITH OUR STATE DEPARTMENT
OSTENSIBLY FOR THE PEACEFUL SETTLEMENT OF DIFFERENCES BETWEEN THE TWO
COUNTRIES.  SIMULTANEOUSLY OR NEARLY SO, THE JAPANESE ATTACKED
MALAYSIA, HONG KONG, THE PHILIPPINES, AND WAKE AND MIDWAY ISLANDS.  ON
THE FOLLOWING DAY THEIR ARMY INVADED THAILAND.  SHORTLY AFTERWARDS THEY
SANK TWO BRITISH BATTLESHIPS.  ON DECEMBER 13TH, GUAM WAS TAKEN.  ON
DECEMBER 24TH AND 25TH THEY CAPTURED WAKE ISLAND AND OCCUPIED HONG
KONG.  ON JANUARY 2, 1942, MANILA FELL, AND ON FEBRUARY 10TH SINGAPORE,
BRITAIN'S GREAT NAVAL BASE IN THE EAST, WAS TAKEN.  ON FEBRUARY 27TH
THE BATTLE OF THE JAVA SEA RESULTED IN A DISASTROUS NAVAL DEFEAT TO THE
UNITED NATIONS.  BY THE 9TH OF MARCH JAPANESE FORCES HAD ESTABLISHED
CONTROL OVER THE NETHERLANDS EAST INDIES; RANGOON AND BURMA WERE
OCCUPIED; BATAAN AND CORREGIDOR WERE UNDER ATTACK. 

ALTHOUGH THE RESULTS OF THE ATTACK ON PEARL HARBOR WERE NOT FULLY
DISCLOSED UNTIL MUCH LATER, IT WAS KNOWN THAT THE DAMAGE WAS EXTENSIVE,
AND THAT THE JAPANESE BY THEIR SUCCESSES HAD GAINED A NAVAL SUPERIORITY
OVER OUR FORCES IN THE PACIFIC WHICH MIGHT ENABLE THEM TO SEIZE PEARL
HARBOR, OUR LARGEST NAVAL BASE AND THE LAST STRONGHOLD OF DEFENSE LYING
BETWEEN JAPAN AND THE WEST COAST.  THAT REASONABLY PRUDENT MEN CHARGED
WITH THE RESPONSIBILITY OF OUR NATIONAL DEFENSE HAD AMPLE GROUND FOR
CONCLUDING THAT THEY MUST FACE THE DANGER OF INVASION, TAKE MEASURES
AGAINST IT, AND IN MAKING THE CHOICE OF MEASURES CONSIDER OUR INTERNAL
SITUATION, CANNOT BE DOUBTED. 

THE CHALLENGED ORDERS WERE DEFENSE MEASURES FOR THE AVOWED PURPOSE OF
SAFEGUARDING THE MILITARY AREA IN QUESTION, AT A TIME OF THREATENED AIR
RAIDS AND INVASION BY THE JAPANESE FORCES, FROM THE DANGER OF SABOTAGE
AND ESPIONAGE.  AS THE CURFEW WAS MADE APPLICABLE TO CITIZENS RESIDING
IN THE AREA ONLY IF THEY WERE OF JAPANESE ANCESTRY, OUR INQUIRY MUST BE
WHETHER IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES THERE WAS ANY
SUBSTANTIAL BASIS FOR THE CONCLUSION, IN WHICH CONGRESS AND THE
MILITARY COMMANDER UNITED, THAT THE CURFEW AS APPLIED WAS A PROTECTIVE
MEASURE NECESSARY TO MEET THE THREAT OF SABOTAGE AND ESPIONAGE WHICH
WOULD SUBSTANTIALLY AFFECT THE WAR EFFORT AND WHICH MIGHT REASONABLY BE
EXPECTED TO AID A THREATENED ENEMY INVASION.  THE ALTERNATIVE WHICH
APPELLANT INSISTS MUST BE ACCEPTED IS FOR THE MILITARY AUTHORITIES TO
IMPOSE THE CURFEW ON ALL CITIZENS WITHIN THE MILITARY AREA, OR ON
NONE.  IN A CASE OF THREATENED DANGER REQUIRING PROMPT ACTION, IT IS A
CHOICE BETWEEN INFLICTING OBVIOUSLY NEEDLESS HARDSHIP ON THE MANY, OR
SITTING PASSIVE AND UNRESISTING IN THE PRESENCE OF THE THREAT.  WE
THINK THAT CONSTITUTIONAL GOVERNMENT, IN TIME OF WAR, IS NOT SO
POWERLESS AND DOES NOT COMPEL SO HARD A CHOICE IF THOSE CHARGED WITH
THE RESPONSIBILITY OF OUR NATIONAL DEFENSE HAVE REASONABLE GROUND FOR
BELIEVING THAT THE THREAT IS REAL. 

WHEN THE ORDERS WERE PROMULGATED THERE WAS A VAST CONCENTRATION,
WITHIN MILITARY AREAS NOS. 1 AND 2, OF INSTALLATIONS AND FACILITIES FOR
THE PRODUCTION OF MILITARY EQUIPMENT, ESPECIALLY SHIPS AND AIRPLANES. 
IMPORTANT ARMY AND NAVY BASES WERE LOCATED IN CALIFORNIA AND
WASHINGTON.  APPROXIMATELY ONE-FOURTH OF THE TOTAL VALUE OF THE MAJOR
AIRCRAFT CONTRACTS THEN LET BY GOVERNMENT PROCUREMENT OFFICERS WERE TO
BE PERFORMED IN THE STATE OF CALIFORNIA.  CALIFORNIA RANKED SECOND, AND
WASHINGTON FIFTH, OF ALL THE STATES OF THE UNION WITH RESPECT TO THE
VALUE OF SHIPBUILDING CONTRACTS TO BE PERFORMED.  FN1 

IN THE CRITICAL DAYS OF MARCH 1942, THE DANGER TO OUR WAR PRODUCTION
BY SABOTAGE AND ESPIONAGE IN THIS AREA SEEMS OBVIOUS.  THE GERMAN
INVASION OF THE WESTERN EUROPEAN COUNTRIES HAD GIVEN AMPLE WARNING TO
THE WORLD OF THE MENACE OF THE "FIFTH COLUMN."  ESPIONAGE BY PERSONS IN
SYMPATHY WITH THE JAPANESE GOVERNMENT HAD BEEN FOUND TO HAVE BEEN
PARTICULARLY EFFECTIVE IN THE SURPRISE ATTACK ON PEARL HARBOR.  FN2  AT
A TIME OF THREATENED JAPANESE ATTACK UPON THIS COUNTRY, THE NATURE OF
OUR INHABITANTS' ATTACHMENTS TO THE JAPANESE ENEMY WAS CONSEQUENTLY A
MATTER OF GRAVE CONCERN.  OF THE 126,000 PERSONS OF JAPANESE DESCENT IN
THE UNITED STATES, CITIZENS AND NON-CITIZENS, APPROXIMATELY 112,000
RESIDED IN CALIFORNIA, OREGON AND WASHINGTON AT THE TIME OF THE
ADOPTION OF THE MILITARY REGULATIONS.  OF THESE APPROXIMATELY TWO
THIRDS ARE CITIZENS BECAUSE BORN IN THE UNITED STATES.  NOT ONLY DID
THE GREAT MAJORITY OF SUCH PERSONS RESIDE WITHIN THE PACIFIC COAST
STATES BUT THEY WERE CONCENTRATED IN OR NEAR THREE OF THE LARGE CITIES,
SEATTLE, PORTLAND AND LOS ANGELES, ALL IN MILITARY AREA NO. 1.  FN3 

THERE IS SUPPORT FOR THE VIEW THAT SOCIAL, ECONOMIC AND POLITICAL
CONDITIONS WHICH HAVE PREVAILED SINCE THE CLOSE OF THE LAST CENTURY,
WHEN THE JAPANESE BEGAN TO COME TO THIS COUNTRY IN SUBSTANTIAL NUMBERS,
HAVE INTENSIFIED THEIR SOLIDARITY AND HAVE IN LARGE MEASURE PREVENTED
THEIR ASSIMILATION AS AN INTEGRAL PART OF THE WHITE POPULATION.  FN4
IN ADDITION, LARGE NUMBERS OF CHILDREN OF JAPANESE PARENTAGE ARE SENT
TO JAPANESE LANGUAGE SCHOOLS OUTSIDE THE REGULAR HOURS OF PUBLIC
SCHOOLS IN THE LOCALITY.  SOME OF THESE SCHOOLS ARE GENERALLY BELIEVED
TO BE SOURCES OF JAPANESE NATIONALISTIC PROPAGANDA, CULTIVATING
ALLEGIANCE TO JAPAN.  FN5  CONSIDERABLE NUMBERS, ESTIMATED TO BE
APPROXIMATELY 10,000, OF AMERICAN-BORN CHILDREN OF JAPANESE PARENTAGE
HAVE BEEN SENT TO JAPAN FOR ALL OR A PART OF THEIR EDUCATION.  FN6 
CONGRESS AND THE EXECUTIVE, INCLUDING THE MILITARY COMMANDER, COULD
HAVE ATTRIBUTED SPECIAL SIGNIFICANCE, IN ITS BEARING ON THE LOYALTIES
OF PERSONS OF JAPANESE DESCENT, TO THE MAINTENANCE BY JAPAN OF ITS
SYSTEM OF DUAL CITIZENSHIP.  CHILDREN BORN IN THE UNITED STATES OF
JAPANESE ALIEN PARENTS, AND ESPECIALLY THOSE CHILDREN BORN BEFORE
DECEMBER 1, 1924, ARE UNDER MANY CIRCUMSTANCES DEEMED, BY JAPANESE LAW,
TO BE CITIZENS OF JAPAN.  FN7  NO OFFICIAL CENSUS OF THOSE WHOM JAPAN
REGARDS AS HAVING THUS RETAINED JAPANESE CITIZENSHIP IS AVAILABLE, BUT
THERE IS GROUND FOR THE BELIEF THAT THE NUMBER IS LARGE.  FN8 

THE LARGE NUMBER OF RESIDENT ALIEN JAPANESE, APPROXIMATELY ONE-THIRD
OF ALL JAPANESE INHABITANTS OF THE COUNTRY, ARE OF MATURE YEARS AND
OCCUPY POSITIONS OF INFLUENCE IN JAPANESE COMMUNITIES.  THE ASSOCIATION
OF INFLUENTIAL JAPANESE RESIDENTS WITH JAPANESE CONSULATES HAS BEEN
DEEMED A READY MEANS FOR THE DISSEMINATION OF PROPAGANDA AND FOR THE
MAINTENANCE OF THE INFLUENCE OF THE JAPANESE GOVERNMENT WITH THE
JAPANESE POPULATION IN THIS COUNTRY.  FN9 

AS A RESULT OF ALL THESE CONDITIONS AFFECTING THE LIFE OF THE
JAPANESE, BOTH ALIENS AND CITIZENS, IN THE PACIFIC COAST AREA, THERE
HAS BEEN RELATIVELY LITTLE SOCIAL INTERCOURSE BETWEEN THEM AND THE
WHITE POPULATION.  THE RESTRICTIONS, BOTH PRACTICAL AND LEGAL,
AFFECTING THE PRIVILEGES AND OPPORTUNITIES AFFORDED TO PERSONS OF
JAPANESE EXTRACTION RESIDING IN THE UNITED STATES, HAVE BEEN SOURCES OF
IRRITATION AND MAY WELL HAVE TENDED TO INCREASE THEIR ISOLATION, AND IN
MANY INSTANCES THEIR ATTACHMENTS TO JAPAN AND ITS INSTITUTIONS. 

VIEWING THESE DATA IN ALL THEIR ASPECTS, CONGRESS AND THE EXECUTIVE
COULD REASONABLY HAVE CONCLUDED THAT THESE CONDITIONS HAVE ENCOURAGED
THE CONTINUED ATTACHMENT OF MEMBERS OF THIS GROUP TO JAPAN AND JAPANESE
INSTITUTIONS.  THESE ARE ONLY SOME OF THE MANY CONSIDERATIONS WHICH
THOSE CHARGED WITH THE RESPONSIBILITY FOR THE NATIONAL DEFENSE COULD
TAKE INTO ACCOUNT IN DETERMINING THE NATURE AND EXTENT OF THE DANGER OF
ESPIONAGE AND SABOTAGE, IN THE EVENT OF INVASION OR AIR RAID ATTACK. 
THE EXTENT OF THAT DANGER COULD BE DEFINITELY KNOWN ONLY AFTER THE
EVENT AND AFTER IT WAS TOO LATE TO MEET IT.  WHATEVER VIEWS WE MAY
ENTERTAIN REGARDING THE LOYALTY TO THIS COUNTRY OF THE CITIZENS OF
JAPANESE ANCESTRY, WE CANNOT REJECT AS UNFOUNDED THE JUDGMENT OF THE
MILITARY AUTHORITIES AND OF CONGRESS THAT THERE WERE DISLOYAL MEMBERS
OF THAT POPULATION, WHOSE NUMBER AND STRENGTH COULD NOT BE PRECISELY
AND QUICKLY ASCERTAINED.  WE CANNOT SAY THAT THE WAR-MAKING BRANCHES OF
THE GOVERNMENT DID NOT HAVE GROUND FOR BELIEVING THAT IN A CRITICAL
HOUR SUCH PERSONS COULD NOT READILY BE ISOLATED AND SEPARATELY DEALT
WITH, AND CONSTITUTED A MENACE TO THE NATIONAL DEFENSE AND SAFETY,
WHICH DEMANDED THAT PROMPT AND ADEQUATE MEASURES BE TAKEN TO GUARD
AGAINST IT. 

APPELLANT DOES NOT DENY THAT, GIVEN THE DANGER, A CURFEW WAS AN
APPROPRIATE MEASURE AGAINST SABOTAGE.  IT IS AN OBVIOUS PROTECTION
AGAINST THE PERPETRATION OF SABOTAGE MOST READILY COMMITTED DURING THE
HOURS OF DARKNESS.  IF IT WAS AN APPROPRIATE EXERCISE OF THE WAR POWER
ITS VALIDITY IS NOT IMPAIRED BECAUSE IT HAS RESTRICTED THE CITIZEN'S
LIBERTY.  LIKE EVERY MILITARY CONTROL OF THE POPULATION OF A DANGEROUS
ZONE IN WAR TIME, IT NECESSARILY INVOLVES SOME INFRINGEMENT OF
INDIVIDUAL LIBERTY, JUST AS DOES THE POLICE ESTABLISHMENT OF FIRE LINES
DURING A FIRE, OR THE CONFINEMENT OF PEOPLE TO THEIR HOUSES DURING AN
AIR RAID ALARM - NEITHER OF WHICH COULD BE THOUGHT TO BE AN
INFRINGEMENT OF CONSTITUTIONAL RIGHT.  LIKE THEM, THE VALIDITY OF THE
RESTRAINTS OF THE CURFEW ORDER DEPENDS ON ALL THE CONDITIONS WHICH
OBTAIN AT THE TIME THE CURFEW IS IMPOSED AND WHICH SUPPORT THE ORDER
IMPOSING IT. 

BUT APPELLANT INSISTS THAT THE EXERCISE OF THE POWER IS INAPPROPRIATE
AND UNCONSTITUTIONAL BECAUSE IT DISCRIMINATES AGAINST CITIZENS OF
JAPANESE ANCESTRY, IN VIOLATION OF THE FIFTH AMENDMENT.  THE FIFTH
AMENDMENT CONTAINS NO EQUAL PROTECTION CLAUSE AND IT RESTRAINS ONLY
SUCH DISCRIMINATORY LEGISLATION BY CONGRESS AS AMOUNTS TO A DENIAL OF
DUE PROCESS.  DETROIT BANK V. UNITED STATES, 317 U.S. 329, 337-38, AND
CASES CITED.  CONGRESS MAY HIT AT A PARTICULAR DANGER WHERE IT IS SEEN,
WITHOUT PROVIDING FOR OTHERS WHICH ARE NOT SO EVIDENT OR SO URGENT. 
KEOKEE COKE CO. V. TAYLOR, 234 U.S. 224, 227. 

DISTINCTIONS BETWEEN CITIZENS SOLELY BECAUSE OF THEIR ANCESTRY ARE BY
THEIR VERY NATURE ODIOUS TO A FREE PEOPLE WHOSE INSTITUTIONS ARE
FOUNDED UPON THE DOCTRINE OF EQUALITY.  FOR THAT REASON, LEGISLATIVE
CLASSIFICATION OR DISCRIMINATION BASED ON RACE ALONE HAS OFTEN BEEN
HELD TO BE A DENIAL OF EQUAL PROTECTION.  YICK WO V. HOPKINS, 118 U.S.
356; YU CONG ENG V. TRINIDAD, 271 U.S. 500; HILL V. TEXAS, 316 U.S.
400.  WE MAY ASSUME THAT THESE CONSIDERATIONS WOULD BE CONTROLLING HERE
WERE IT NOT FOR THE FACT THAT THE DANGER OF ESPIONAGE AND SABOTAGE, IN
TIME OF WAR AND OF THREATENED INVASION, CALLS UPON THE MILITARY
AUTHORITIES TO SCRUTINIZE EVERY RELEVANT FACT BEARING ON THE LOYALTY OF
POPULATIONS IN THE DANGER AREAS.  BECAUSE RACIAL DISCRIMINATIONS ARE IN
MOST CIRCUMSTANCES IRRELEVANT AND THEREFORE PROHIBITED, IT BY NO MEANS
FOLLOWS THAT, IN DEALING WITH THE PERILS OF WAR, CONGRESS AND THE
EXECUTIVE ARE WHOLLY PRECLUDED FROM TAKING INTO ACCOUNT THOSE FACTS AND
CIRCUMSTANCES WHICH ARE RELEVANT TO MEASURES FOR OUR NATIONAL DEFENSE
AND FOR THE SUCCESSFUL PROSECUTION OF THE WAR, AND WHICH MAY IN FACT
PLACE CITIZENS OF ONE ANCESTRY IN A DIFFERENT CATEGORY FROM OTHERS. 
"WE MUST NEVER FORGET, THAT IT IS A CONSTITUTION WE ARE EXPOUNDING," "A
CONSTITUTION INTENDED TO ENDURE FOR AGES TO COME, AND, CONSEQUENTLY, TO
BE ADAPTED TO THE VARIOUS CRISES OF HUMAN AFFAIRS."  MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, 407, 415.  THE ADOPTION BY GOVERNMENT, IN THE
CRISIS OF WAR AND OF THREATENED INVASION, OF MEASURES FOR THE PUBLIC
SAFETY, BASED UPON THE RECOGNITION OF FACTS AND CIRCUMSTANCES WHICH
INDICATE THAT A GROUP OF ONE NATIONAL EXTRACTION MAY MENACE THAT SAFETY
MORE THAN OTHERS, IS NOT WHOLLY BEYOND THE LIMITS OF THE CONSTITUTION
AND IS NOT TO BE CONDEMNED MERELY BECAUSE IN OTHER AND IN MOST
CIRCUMSTANCES RACIAL DISTINCTIONS ARE IRRELEVANT.  CF. CLARKE V.
DECKEBACH, 274 U.S. 392, AND CASES CITED. 

HERE THE AIM OF CONGRESS AND THE EXECUTIVE WAS THE PROTECTION AGAINST
SABOTAGE OF WAR MATERIALS AND UTILITIES IN AREAS THOUGHT TO BE IN
DANGER OF JAPANASE INVASION AND AIR ATTACK.  WE HAVE STATED IN DETAIL
FACTS AND CIRCUMSTANCES WITH RESPECT TO THE AMERICAN CITIZENS OF
JAPANESE ANCESTRY RESIDING ON THE PACIFIC COAST WHICH SUPPORT THE
JUDGMENT OF THE WAR-WAGING BRANCHES OF THE GOVERNMENT THAT SOME
RESTRICTIVE MEASURE WAS URGENT.  WE CANNOT SAY THAT THESE FACTS AND
CIRCUMSTANCES, CONSIDERED IN THE PARTICULAR WAR SETTING, COULD AFFORD
NO GROUND FOR DIFFERENTIATING CITIZENS OF JAPANESE ANCESTRY FROM OTHER
GROUPS IN THE UNITED STATES.  THE FACT ALONE THAT ATTACK ON OUR SHORES
WAS THREATENED BY JAPAN RATHER THAN ANOTHER ENEMY POWER SET THESE
CITIZENS APART FROM OTHERS WHO HAVE NO PARTICULAR ASSOCIATIONS WITH
JAPAN. 

OUR INVESTIGATION HERE DOES NOT GO BEYOND THE INQUIRY WHETHER, IN THE
LIGHT OF ALL THE RELEVANT CIRCUMSTANCES PRECEDING AND ATTENDING THEIR
PROMULGATION, THE CHALLENGED ORDERS AND STATUTE AFFORDED A REASONABLE
BASIS FOR THE ACTION TAKEN IN IMPOSING THE CURFEW.  WE CANNOT CLOSE OUR
EYES TO THE FACT, DEMONSTRATED BY EXPERIENCE, THAT IN TIME OF WAR
RESIDENTS HAVING ETHNIC AFFILIATIONS WITH AN INVADING ENEMY MAY BE A
GREATER SOURCE OF DANGER THAN THOSE OF A DIFFERENT ANCESTRY.  NOR CAN
WE DENY THAT CONGRESS, AND THE MILITARY AUTHORITIES ACTING WITH ITS
AUTHORIZATION, HAVE CONSTITUTIONAL POWER TO APPRAISE THE DANGER IN THE
LIGHT OF FACTS OF PUBLIC NOTORIETY.  WE NEED NOT NOW ATTEMPT TO DEFINE
THE ULTIMATE BOUNDARIES OF THE WAR POWER.  WE DECIDE ONLY THE ISSUE AS
WE HAVE DEFINED IT - WE DECIDE ONLY THAT THE CURFEW ORDER AS APPLIED,
AND AT THE TIME IT WAS APPLIED, WAS WITHIN THE BOUNDARIES OF THE WAR
POWER.  IN THIS CASE IT IS ENOUGH THAT CIRCUMSTANCES WITHIN THE
KNOWLEDGE OF THOSE CHARGED WITH THE RESPONSIBILITY FOR MAINTAINING THE
NATIONAL DEFENSE AFFORDED A RATIONAL BASIS FOR THE DECISION WHICH THEY
MADE.  WHETHER WE WOULD HAVE MADE IT IS IRRELEVANT. 

WHAT WE HAVE SAID ALSO DISPOSES OF THE CONTENTION THAT THE CURFEW
ORDER INVOLVED AN UNLAWFUL DELEGATION BY CONGRESS OF ITS LEGISLATIVE
POWER.  THE MANDATE OF THE CONSTITUTION THAT ALL LEGISLATIVE POWER
GRANTED "SHALL BE VESTED IN CONGRESS" HAS NEVER BEEN THOUGHT, EVEN IN
THE ADMINISTRATION OF CIVIL AFFAIRS, TO PRECLUDE CONGRESS FROM
RESORTING TO THE AID OF EXECUTIVE OR ADMINISTRATIVE OFFICERS IN
DETERMINING BY FINDINGS WHETHER THE FACTS ARE SUCH AS TO CALL FOR THE
APPLICATION OF PREVIOUSLY ADOPTED LEGISLATIVE STANDARDS OR DEFINITIONS
OF CONGRESSIONAL POLICY. 

THE PURPOSE OF EXECUTIVE ORDER NO. 9066, AND THE STANDARD WHICH THE
PRESIDENT APPROVED FOR THE ORDERS AUTHORIZED TO BE PROMULGATED BY THE
MILITARY COMMANDER - AS DISCLOSED BY THE PREAMBLE OF THE EXECUTIVE
ORDER - WAS THE PROTECTION OF OUR WAR RESOURCES AGAINST ESPIONAGE AND
SABOTAGE.  PUBLIC PROCLAMATIONS NOS. 1 AND 2 BY GENERAL DEWITT, CONTAIN
FINDINGS THAT THE MILITARY AREAS CREATED AND THE MEASURES TO BE
PRESCRIBED FOR THEM WERE REQUIRED TO ESTABLISH SAFEGUARDS AGAINST
ESPIONAGE AND SABOTAGE.  BOTH THE EXECUTIVE ORDER AND THE PROCLAMATIONS
WERE BEFORE CONGRESS WHEN THE ACT OF MARCH 21, 1942, WAS UNDER
CONSIDERATION.  TO THE EXTENT THAT THE EXECUTIVE ORDER AUTHORIZED
ORDERS TO BE PROMULGATED BY THE MILITARY COMMANDER TO ACCOMPLISH THE
DECLARED PURPOSE OF THE ORDER, AND TO THE EXTENT THAT THE FINDINGS IN
THE PROCLAMATIONS ESTABLISH THAT SUCH WAS THEIR PURPOSE, BOTH HAVE BEEN
APPROVED BY CONGRESS. 

IT IS TRUE THAT THE ACT DOES NOT IN TERMS ESTABLISH A PARTICULAR
STANDARD TO WHICH ORDERS OF THE MILITARY COMMANDER ARE TO CONFORM, OR
REQUIRE FINDINGS TO BE MADE AS A PREREQUISITE TO ANY ORDER.  BUT THE
EXECUTIVE ORDER, THE PROCLAMATIONS AND THE STATUTE ARE NOT TO BE READ
IN ISOLATION FROM EACH OTHER.  THEY WERE PARTS OF A SINGLE PROGRAM AND
MUST BE JUDGED AS SUCH.  THE ACT OF MARCH 21, 1942, WAS AN ADOPTION BY
CONGRESS OF THE EXECUTIVE ORDER AND OF THE PROCLAMATIONS.  THE
PROCLAMATIONS THEMSELVES FOLLOWED A STANDARD AUTHORIZED BY THE
EXECUTIVE ORDER - THE NECESSITY OF PROTECTING MILITARY RESOURCES IN THE
DESIGNATED AREAS AGAINST ESPIONAGE AND SABOTAGE.  AND BY THE ACT,
CONGRESS GAVE ITS APPROVAL TO THAT STANDARD.  WE HAVE NO NEED TO
CONSIDER NOW THE VALIDITY OF ACTION IF TAKEN BY THE MILITARY COMMANDER
WITHOUT CONFORMING TO THIS STANDARD APPROVED BY CONGRESS, OR THE
VALIDITY OF ORDERS MADE WITHOUT THE SUPPORT OF FINDINGS SHOWING THAT
THEY DO SO CONFORM.  HERE THE FINDINGS OF DANGER FROM ESPIONAGE AND
SABOTAGE, AND OF THE NECESSITY OF THE CURFEW ORDER TO PROTECT AGAINST
THEM, HAVE BEEN DULY MADE.  GENERAL DEWITT'S PUBLIC PROCLAMATION NO. 3,
WHICH ESTABLISHED THE CURFEW, MERELY PRESCRIBED REGULATIONS OF THE TYPE
AND IN THE MANNER WHICH PUBLIC PROCLAMATIONS NOS. 1 AND 2 HAD ANNOUNCED
WOULD BE PRESCRIBED AT A FUTURE DATE, AND WAS THUS FOUNDED ON THE
FINDINGS OF PROCLAMATIONS NOS. 1 AND 2. 

THE MILITARY COMMANDER'S APPRAISAL OF FACTS IN THE LIGHT OF THE
AUTHORIZED STANDARD, AND THE INFERENCES WHICH HE DREW FROM THOSE FACTS,
INVOLVED THE EXERCISE OF HIS INFORMED JUDGMENT.  BUT AS WE HAVE SEEN,
THOSE FACTS, AND THE INFERENCES WHICH COULD BE RATIONALLY DRAWN FROM
THEM, SUPPORT THE JUDGMENT OF THE MILITARY COMMANDER, THAT THE DANGER
OF ESPIONAGE AND SABOTAGE TO OUR MILITARY RESOURCES WAS IMMINENT, AND
THAT THE CURFEW ORDER WAS AN APPROPRIATE MEASURE TO MEET IT. 

WHERE, AS IN THE PRESENT CASE, THE STANDARD SET UP FOR THE GUIDANCE
OF THE MILITARY COMMANDER, AND THE ACTION TAKEN AND THE REASONS FOR IT,
ARE IN FACT RECORDED IN THE MILITARY ORDERS, SO THAT CONGRESS, THE
COURTS AND THE PUBLIC ARE ASSURED THAT THE ORDERS, IN THE JUDGMENT OF
THE COMMANDER, CONFORM TO THE STANDARDS APPROVED BY THE PRESIDENT AND
CONGRESS, THERE IS NO FAILURE IN THE PERFORMANCE OF THE LEGISLATIVE
FUNCTION.  OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126, 142-46, AND
CASES CITED.  THE ESSENTIALS OF THAT FUNCTION ARE THE DETERMINATION BY
CONGRESS OF THE LEGISLATIVE POLICY AND ITS APPROVAL OF A RULE OF
CONDUCT TO CARRY THAT POLICY INTO EXECUTION.  THE VERY NECESSITIES
WHICH ATTEND THE CONDUCT OF MILITARY OPERATIONS IN TIME OF WAR IN THIS
INSTANCE AS IN MANY OTHERS PRECLUDE CONGRESS FROM HOLDING COMMITTEE
MEETINGS TO DETERMINE WHETHER THERE IS DANGER, BEFORE IT ENACTS
LEGISLATION TO COMBAT THE DANGER. 

THE CONSTITUTION AS A CONTINUOUSLY OPERATING CHARTER OF GOVERNMENT
DOES NOT DEMAND THE IMPOSSIBLE OR THE IMPRACTICAL.  THE ESSENTIALS OF
THE LEGISLATIVE FUNCTION ARE PRESERVED WHEN CONGRESS AUTHORIZES A
STATUTORY COMMAND TO BECOME OPERATIVE, UPON ASCERTAINMENT OF A BASIC
CONCLUSION OF FACT BY A DESIGNATED REPRESENTATIVE OF THE GOVERNMENT. 
CF. THE AURORA, 7 CRANCH 382; UNITED STATES V. CHEMICAL FOUNDATION, 272
U.S. 1, 12.  THE PRESENT STATUTE, WHICH AUTHORIZED CURFEW ORDERS TO BE
MADE PURSUANT TO EXECUTIVE ORDER NO. 9066 FOR THE PROTECTION OF WAR
RESOURCES FROM ESPIONAGE AND SABOTAGE, SATISFIES THOSE REQUIREMENTS. 
UNDER THE EXECUTIVE ORDER THE BASIC FACTS, DETERMINED BY THE MILITARY
COMMANDER IN THE LIGHT OF KNOWLEDGE THEN AVAILABLE, WERE WHETHER THAT
DANGER EXISTED AND WHETHER A CURFEW ORDER WAS AN APPROPRIATE MEANS OF
MINIMIZING THE DANGER.  SINCE HIS FINDINGS TO THAT EFFECT WERE, AS WE
HAVE SAID, NOT WITHOUT ADEQUATE SUPPORT, THE LEGISLATIVE FUNCTION WAS
PERFORMED AND THE SANCTION OF THE STATUTE ATTACHED TO VIOLATIONS OF THE
CURFEW ORDER.  IT IS UNNECESSARY TO CONSIDER WHETHER OR TO WHAT EXTENT
SUCH FINDINGS WOULD SUPPORT ORDERS DIFFERING FROM THE CURFEW ORDER. 
THE CONVICTION UNDER THE SECOND COUNT IS WITHOUT CONSTITUTIONAL
INFIRMITY.  HENCE WE HAVE NO OCCASION TO REVIEW THE CONVICTION ON THE
FIRST COUNT SINCE, AS ALREADY STATED, THE SENTENCES ON THE TWO COUNTS
ARE TO RUN CONCURRENTLY AND CONVICTION ON THE SECOND IS SUFFICIENT TO
SUSTAIN THE SENTENCE.  FOR THIS REASON ALSO IT IS UNNECESSARY TO
CONSIDER THE GOVERNMENT'S ARGUMENT THAT COMPLIANCE WITH THE ORDER TO
REPORT AT THE CIVILIAN CONTROL STATION DID NOT NECESSARILY ENTAIL
CONFINEMENT IN A RELOCATION CENTER.  AFFIRMED. 

FN1  STATE DISTRIBUTION OF WAR SUPPLY AND FACILITY CONTRACTS - JUNE
1940 THROUGH DECEMBER 1941(ISSUED BY OFFICE OF PRODUCTION MANAGEMENT,
BUREAU OF RESEARCH AND STATISTICS, JANUARY 18, 1942); IBID. -
CUMULATIVE THROUGH FEBRUARY 1943(ISSUED BY WAR PRODUCTION BOARD,
STATISTICS DIVISION, APRIL 3, 1943). 

FN2  SEE "ATTACK UPON PEARL HARBOR BY JAPANESE ARMED FORCES," REPORT
OF THE COMMISSION APPOINTED BY THE PRESIDENT, DATED JANUARY 23, 1942,
S. DOC. NO. 159, 77TH CONG., 2D SESS., PP. 12-13. 

FN3  SIXTEENTH CENSUS OF THE UNITED STATES, FOR 1940, POPULATION,
SECOND SERIES, CHARACTERISTICS OF THE POPULATION (DEPT. OF COMMERCE):
CALIFORNIA, PP. 10, 61; OREGON, PP. 10, 50; WASHINGTON, PP. 10, 52. 
SEE ALSO H.R. REP. NO. 2124, 77TH CONG., 2D SESS., PP. 91-100. 

FN4  FEDERAL LEGISLATION HAS DENIED TO THE JAPANESE CITIZENSHIP BY
NATURALIZATION (R.S. SEC. 2169; 8 U.S.C. SEC. 703; SEE OZAWA V. UNITED
STATES, 260 U.S. 178), AND THE IMMIGRATION ACT OF 1924 EXCLUDED THEM
FROM ADMISSION INTO THE UNITED STATES.  43 STAT. 161, 8 U.S.C. SEC.
213.  STATE LEGISLATION HAS DENIED TO ALIEN JAPANESE THE PRIVILEGE OF
OWNING LAND.  1 CALIFORNIA GENERAL LAWS (DEERING, 1931), ACT 261; 5
OREGON COMP. LAWS ANN. (1940), SEC. 61-102; 11 WASHINGTON REV. STAT.
ANN. (REMINGTON, 1933), SECS. 10581-10582.  IT HAS ALSO SOUGHT TO
PROHIBIT INTERMARRIAGE OF PERSONS OF JAPANESE RACE WITH CAUCASIANS. 
MONTANA REV. CODES (1935), SEC. 5702.  PERSONS OF JAPANESE DESCENT HAVE
OFTEN BEEN UNABLE TO SECURE PROFESSIONAL OR SKILLED EMPLOYMENT EXCEPT
IN ASSOCIATION WITH OTHERS OF THAT DESCENT, AND SUFFICIENT EMPLOYMENT
OPPORTUNITIES OF THIS CHARACTER HAVE NOT BEEN AVAILABLE.  MEARS,
RESIDENT ORIENTALS ON THE AMERICAN PACIFIC COAST (1927), PP. 188, 198
209, 402-03; H.R. REP. NO. 2124, 77TH CONG., 2D SESS., PP. 101-38. 

FN5  HEARINGS BEFORE THE SELECT COMMITTEE INVESTIGATING NATIONAL
DEFENSE MIGRATION, HOUSE OF REPRESENTATIVES, 77TH CONG., 2D SESS., PP.
11702, 11393-94, 11348. 

FN6  H.R. REP. NO. 1911, 77TH CONG., 2D SESS., P. 16. 

FN7  NATIONALITY LAW OF JAPAN, ARTICLE 1 AND ARTICLE 20, SEC. 3, AND
REGULATIONS (ORDINANCE NO. 26) OF NOVEMBER 17, 1924,  - ALL PRINTED IN
FLOURNOY AND HUDSON, NATIONALITY LAWS (1929), PP. 382, 384-87.  SEE
ALSO FOREIGN RELATIONS OF THE UNITED STATES, 1924, VOL. 2, PP. 411-13. 

FN8  STATISTICS RELEASED IN 1927 BY THE CONSUL GENERAL OF JAPAN AT
SAN FRANCISCO ASSERTED THAT OVER 51,000 OF THE APPROXIMATELY 63,000
AMERICAN-BORN PERSONS OF JAPANESE PARENTAGE THEN IN THE WESTERN PART OF
THE UNITED STATES HELD JAPANESE CITIZENSHIP.  MEARS, RESIDENT ORIENTALS
ON THE AMERICAN PACIFIC COAST, PP. 107-08, 429.  A CENSUS CONDUCTED
UNDER THE AUSPICES OF THE JAPANESE GOVERNMENT IN 1930 ASSERTED THAT
APPROXIMATELY 47% OF AMERICAN-BORN PERSONS OF JAPANESE PARENTAGE IN
CALIFORNIA HELD DUAL CITIZENSHIP.  STRONG, THE SECOND-GENERATION
JAPANESE PROBLEM (1934), P. 142. 

FN9  H.R. REP. NO. 1911, 77TH CONG., 2D SESS., P. 17. 

MR. JUSTICE DOUGLAS, CONCURRING: 

WHILE I CONCUR IN THE RESULT AND AGREE SUBSTANTIALLY WITH THE OPINION
OF THE COURT, I WISH TO ADD A FEW WORDS TO INDICATE WHAT FOR ME IS THE
NARROW GROUND OF DECISION. 

AFTER THE DISASTROUS BOMBING OF PEARL HARBOR THE MILITARY HAD A GRAVE
PROBLEM ON ITS HANDS.  THE THREAT OF JAPANESE INVASION OF THE WEST
COAST WAS NOT FANCIFUL BUT REAL.  THE PRESENCE OF MANY THOUSANDS OF
ALIENS AND CITIZENS OF JAPANESE ANCESTRY IN OR NEAR TO THE KEY POINTS
ALONG THAT COAST LINE AROUSED SPECIAL CONCERN IN THOSE CHARGED WITH THE
DEFENSE OF THE COUNTRY.  THEY BELIEVED THAT NOT ONLY AMONG ALIENS BUT
ALSO AMONG CITIZENS OF JAPANESE ANCESTRY THERE WERE THOSE WHO WOULD
GIVE AID AND COMFORT TO THE JAPANESE INVADER AND ACT AS A FIFTH COLUMN
BEFORE AND DURING AN INVASION.  FN1 IF THE MILITARY WERE RIGHT IN THEIR
BELIEF THAT AMONG CITIZENS OF JAPANESE ANCESTRY THERE WAS AN ACTUAL OR
INCIPIENT FIFTH COLUMN, WE WERE INDEED FACED WITH THE IMMINENT THREAT
OF A DIRE EMERGENCY.  WE MUST CREDIT THE MILITARY WITH AS MUCH GOOD
FAITH IN THAT BELIEF AS WE WOULD ANY OTHER PUBLIC OFFICIAL ACTING
PURSUANT TO HIS DUTIES.  WE CANNOT POSSIBLY KNOW ALL THE FACTS WHICH
LAY BEHIND THAT DECISION.  SOME OF THEM MAY HAVE BEEN AS INTANGIBLE AND
AS IMPONDERABLE AS THE FACTORS WHICH INFLUENCE PERSONAL OR BUSINESS
DECISIONS IN DAILY LIFE.  THE POINT IS THAT WE CANNOT SIT IN JUDGMENT
ON THE MILITARY REQUIREMENTS OF THAT HOUR.  WHERE THE ORDERS UNDER THE
PRESENT ACT HAVE SOME RELATION TO "PROTECTION AGAINST ESPIONAGE AND
AGAINST SABOTAGE," OUR TASK IS AT AN END. 

MUCH OF THE ARGUMENT ASSUMES THAT AS A MATTER OF POLICY IT MIGHT HAVE
BEEN WISER FOR THE MILITARY TO HAVE DEALT WITH THESE PEOPLE ON AN
INDIVIDUAL BASIS AND THROUGH THE PROCESS OF INVESTIGATION AND HEARINGS
SEPARATED THOSE WHO WERE LOYAL FROM THOSE WHO WERE NOT.  BUT THE WISDOM
OR EXPEDIENCY OF THE DECISION WHICH WAS MADE IS NOT FOR US TO REVIEW. 
NOR ARE WE WARRANTED WHERE NATIONAL SURVIVAL IS AT STAKE IN INSISTING
THAT THOSE ORDERS SHOULD NOT HAVE BEEN APPLIED TO ANYONE WITHOUT SOME
EVIDENCE OF HIS DISLOYALTY.  THE ORDERS AS APPLIED TO THE PETITIONER
ARE NOT TO BE TESTED BY THE SUBSTANTIAL EVIDENCE RULE.  PEACETIME
PROCEDURES DO NOT NECESSARILY FIT WARTIME NEEDS.  IT IS SAID THAT IF
CITIZENS OF JAPANESE ANCESTRY WERE GENERALLY DISLOYAL, TREATMENT ON A
GROUP BASIS MIGHT BE JUSTIFIED.  BUT THERE IS NO DIFFERENCE IN POWER
WHEN THE NUMBER OF THOSE WHO ARE FINALLY SHOWN TO BE DISLOYAL OR
SUSPECT IS REDUCED TO A SMALL PER CENT. THE SORTING PROCESS MIGHT
INDEED BE AS TIME-CONSUMING WHETHER THOSE WHO WERE DISLOYAL OR SUSPECT
CONSTITUTED NINE OR NINETY-NINE PER CENT.  AND THE PINCH OF THE ORDER
ON THE LOYAL CITIZENS WOULD BE AS GREAT IN ANY CASE.  BUT WHERE THE
PERIL IS GREAT AND THE TIME IS SHORT, TEMPORARY TREATMENT ON A GROUP
BASIS MAY BE THE ONLY PRACTICABLE EXPEDIENT WHATEVER THE ULTIMATE
PERCENTAGE OF THOSE WHO ARE DETAINED FOR CAUSE.  NOR SHOULD THE
MILITARY BE REQUIRED TO WAIT UNTIL ESPIONAGE OR SABOTAGE BECOMES
EFFECTIVE BEFORE IT MOVES. 

IT IS TRUE THAT WE MIGHT NOW SAY THAT THERE WAS AMPLE TIME TO HANDLE
THE PROBLEM ON THE INDIVIDUAL RATHER THAN THE GROUP BASIS.  BUT
MILITARY DECISIONS MUST BE MADE WITHOUT THE BENEFIT OF HINDSIGHT.  THE
ORDERS MUST BE JUDGED AS OF THE DATE WHEN THE DECISION TO ISSUE THEM
WAS MADE.  TO SAY THAT THE MILITARY IN SUCH CASES SHOULD TAKE THE TIME
TO WEED OUT THE LOYAL FROM THE OTHERS WOULD BE TO ASSUME THAT THE
NATION COULD AFFORD TO HAVE THEM TAKE THE TIME TO DO IT.  BUT AS THE
OPINION OF THE COURT MAKES CLEAR, SPEED AND DISPATCH MAY BE OF THE
ESSENCE.  CERTAINLY WE CANNOT SAY THAT THOSE CHARGED WITH THE DEFENSE
OF THE NATION SHOULD HAVE PROCRASTINATED UNTIL INVESTIGATIONS AND
HEARINGS WERE COMPLETED.  AT THAT TIME FURTHER DELAY MIGHT INDEED HAVE
SEEMED TO BE WHOLLY INCOMPATIBLE WITH MILITARY RESPONSIBILITIES. 

SINCE WE CANNOT OVERRIDE THE MILITARY JUDGMENT WHICH LAY BEHIND THESE
ORDERS, IT SEEMS TO ME NECESSARY TO CONCEDE THAT THE ARMY HAD THE POWER
TO DEAL TEMPORARILY WITH THESE PEOPLE ON A GROUP BASIS.  PETITIONER
THEREFORE WAS NOT JUSTIFIED IN DISOBEYING THE ORDERS. 

BUT I THINK IT IMPORTANT TO EMPHASIZE THAT WE ARE DEALING HERE WITH A
PROBLEM OF LOYALTY NOT ASSIMILATION.  LOYALTY IS A MATTER OF MIND AND
OF HEART NOT OF RACE.  THAT INDEED IS THE HISTORY OF AMERICA. 
MOREOVER, GUILT IS PERSONAL UNDER OUR CONSTITUTIONAL SYSTEM.  DETENTION
FOR REASONABLE CAUSE IS ONE THING.  DETENTION ON ACCOUNT OF ANCESTRY IS
ANOTHER. 

IN THIS CASE THE PETITIONER TENDERED BY A PLEA IN ABATEMENT THE
QUESTION OF HIS LOYALTY TO THE UNITED STATES.  I THINK THAT PLEA WAS
PROPERLY STRICKEN; MILITARY MEASURES OF DEFENSE MIGHT BE PARALYZED IF
IT WERE NECESSARY TO TRY OUT THAT ISSUE PRELIMINARILY.  BUT A DENIAL OF
THAT OPPORTUNITY IN THIS CASE DOES NOT NECESSARILY MEAN THAT PETITIONER
COULD NOT HAVE HAD A HEARING ON THAT ISSUE IN SOME APPROPRIATE
PROCEEDING.  OBEDIENCE TO THE MILITARY ORDERS IS ONE THING.  WHETHER AN
INDIVIDUAL MEMBER OF A GROUP MUST BE AFFORDED AT SOME STAGE AN
OPPORTUNITY TO SHOW THAT, BEING LOYAL, HE SHOULD BE RECLASSIFIED IS A
WHOLLY DIFFERENT QUESTION. 

THERE ARE OTHER INSTANCES IN THE LAW WHERE ONE MUST OBEY AN ORDER
BEFORE HE CAN ATTACK AS ERRONEOUS THE CLASSIFICATION IN WHICH HE HAS
BEEN PLACED.  THUS IT IS COMMONLY HELD THAT ONE WHO IS A CONSCIENTIOUS
OBJECTOR HAS NO PRIVILEGE TO DEFY THE SELECTIVE SERVICE ACT AND TO
REFUSE OR FAIL TO BE INDUCTED.  HE MUST SUBMIT TO THE LAW.  BUT THAT
LINE OF AUTHORITY HOLDS THAT AFTER INDUCTION HE MAY OBTAIN THROUGH
HABEAS CORPUS A HEARING ON THE LEGALITY OF HIS CLASSIFICATION BY THE
DRAFT BOARD.  FN2  WHETHER IN THE PRESENT SITUATION THAT REMEDY WOULD
BE AVAILABLE IS ONE OF THE LARGE AND IMPORTANT ISSUES RESERVED BY THE
PRESENT DECISION.  IT HAS BEEN SUGGESTED THAT AN ADMINISTRATIVE
PROCEDURE HAS BEEN ESTABLISHED TO RELIEVE AGAINST UNWARRANTED
APPLICATIONS OF THESE ORDERS.  WHETHER IN THAT EVENT THE ADMINISTRATIVE
REMEDY WOULD BE THE ONLY ONE AVAILABLE OR WOULD HAVE TO BE FIRST
EXHAUSTED IS ALSO RESERVED.  THE SCOPE OF ANY RELIEF WHICH MIGHT BE
AFFORDED - WHETHER THE LIBERTIES OF AN APPLICANT COULD BE RESTORED ONLY
OUTSIDE THE AREAS IN QUESTION - IS LIKEWISE A DISTINCT ISSUE.  BUT IF
IT WERE PLAIN THAT NO MACHINERY WAS AVAILABLE WHEREBY THE INDIVIDUAL
COULD DEMONSTRATE HIS LOYALTY AS A CITIZEN IN ORDER TO BE RECLASSIFIED,
QUESTIONS OF A MORE SERIOUS CHARACTER WOULD BE PRESENTED.  THE UNITED
STATES, HOWEVER, TAKES NO SUCH POSITION.  WE NEED GO NO FURTHER HERE
THAN TO DENY THE INDIVIDUAL THE RIGHT TO DEFY THE LAW.  IT IS
SUFFICIENT TO SAY THAT HE CANNOT TEST IN THAT WAY THE VALIDITY OF THE
ORDERS AS APPLIED TO HIM. 

FN1  JUDGE FEE STATED IN UNITED STATES V. YASUI, 48 F.SUPP.  40, 44
45, THE COMPANION CASE TO THE PRESENT ONE, "THE AREAS AND ZONES
OUTLINED IN THE PROCLAMATIONS BECAME A THEATRE OF OPERATIONS, SUBJECTED
IN LOCALITIES TO ATTACK AND ALL THREATENED DURING THIS PERIOD WITH A
FULL SCALE INVASION.  THE DANGER AT THE TIME THIS PROSECUTION WAS
INSTITUTED WAS IMMINENT AND IMMEDIATE.  THE DIFFICULTY OF CONTROLLING
MEMBERS OF AN ALIEN RACE, MANY OF WHOM, ALTHOUGH CITIZENS, WERE
DISLOYAL WITH OPPORTUNITIES OF SABOTAGE AND ESPIONAGE, WITH INVASION
IMMINENT, PRESENTED A PROBLEM REQUIRING FOR SOLUTION ABILITY AND
DEVOTION OF THE HIGHEST ORDER." 

FN2  SEE UNITED STATES V. POWELL, 38 F.SUPP.  183; APPLICATION OF
GREENBERG, 39 F.SUPP.  13; UNITED STATES V. BAIRD, 39 F.SUPP.  392;
MICHELI V. PAULLIN, 45 F.SUPP.  687; UNITED STATES V. EMBREY, 46
F.SUPP.  916; IN RE ROGERS, 47 F.SUPP.  265; EX PARTE STEWART, 47
F.SUPP.  410; UNITED STATES V. SMITH, 48 F.SUPP.  842; EX PARTE ROBERT,
49 F.SUPP.  131; UNITED STATES V. GRIEME, 128 F.2D 811; FLETCHER V.
UNITED STATES, 129 F.2D 262; DRUMHELLER V. BERKS COUNTY LOCAL BOARD NO.
1, 130 F.2D 610, 612.  FOR CASES ARISING UNDER THE SELECTIVE DRAFT ACT
OF 1917, SEE UNITED STATES V. KINKEAD, 250 F. 692; EX PARTE MCDONALD,
253 F. 99; EX PARTE COHEN, 254 F. 711; ARBITMAN V. WOODSIDE, 258 F.
441; EX PARTE THIERET, 268 F. 472, 476.  AND SEE 10 GEO. WASH. L. REV.
827. 

MR. JUSTICE MURPHY, CONCURRING: 

IT IS NOT TO BE DOUBTED THAT THE ACTION TAKEN BY THE MILITARY
COMMANDER IN PURSUANCE OF THE AUTHORITY CONFERRED UPON HIM WAS TAKEN IN
COMPLETE GOOD FAITH AND IN THE FIRM CONVICTION THAT IT WAS REQUIRED BY
CONSIDERATIONS OF PUBLIC SAFETY AND MILITARY SECURITY.  NEITHER IS IT
DOUBTED THAT THE CONGRESS AND THE EXECUTIVE WORKING TOGETHER MAY
GENERALLY EMPLOY SUCH MEASURES AS ARE NECESSARY AND APPROPRIATE TO
PROVIDE FOR THE COMMON DEFENSE AND TO WAGE WAR "WITH ALL THE FORCE
NECESSARY TO MAKE IT EFFECTIVE."  UNITED STATES V. MACINTOSH, 283 U.S.
605, 622.  THIS INCLUDES AUTHORITY TO EXERCISE MEASURES OF CONTROL OVER
PERSONS AND PROPERTY WHICH WOULD NOT IN ALL CASES BE PERMISSIBLE IN
NORMAL TIMES.  FN1 

IT DOES NOT FOLLOW, HOWEVER, THAT THE BROAD GUARANTIES OF THE BILL OF
RIGHTS AND OTHER PROVISIONS OF THE CONSTITUTION PROTECTING ESSENTIAL
LIBERTIES ARE SUSPENDED BY THE MERE EXISTENCE OF A STATE OF WAR.  IT
HAS BEEN FREQUENTLY STATED AND RECOGNIZED BY THIS COURT THAT THE WAR
POWER, LIKE THE OTHER GREAT SUBSTANTIVE POWERS OF GOVERNMENT, IS
SUBJECT TO THE LIMITATIONS OF THE CONSTITUTION.  SEE EX PARTE MILLIGAN,
4 WALL.  2; HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146, 156;
HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 426.  WE GIVE
GREAT DEFERENCE TO THE JUDGMENT OF THE CONGRESS AND OF THE MILITARY
AUTHORITIES AS TO WHAT IS NECESSARY IN THE EFFECTIVE PROSECUTION OF THE
WAR, BUT WE CAN NEVER FORGET THAT THERE ARE CONSTITUTIONAL BOUNDARIES
WHICH IT IS OUR DUTY TO UPHOLD.  IT WOULD NOT BE SUPPOSED, FOR
INSTANCE, THAT PUBLIC ELECTIONS COULD BE SUSPENDED OR THAT THE
PREROGATIVES OF THE COURTS COULD BE SET ASIDE, OR THAT PERSONS NOT
CHARGED WITH OFFENSES AGAINST THE LAW OF WAR (SEE EX PARTE QUIRIN, 317
U.S. 1) COULD BE DEPRIVED OF DUE PROCESS OF LAW AND THE BENEFITS OF
TRIAL BY JURY, IN THE ABSENCE OF A VALID DECLARATION OF MARTIAL LAW. 
CF. EX PARTE MILLIGAN, SUPRA. 

DISTINCTIONS BASED ON COLOR AND ANCESTRY ARE UTTERLY INCONSISTENT
WITH OUR TRADITIONS AND IDEALS.  THEY ARE AT VARIANCE WITH THE
PRINCIPLES FOR WHICH WE ARE NOW WAGING WAR.  WE CANNOT CLOSE OUR EYES
TO THE FACT THAT FOR CENTURIES THE OLD WORLD HAS BEEN TORN BY RACIAL
AND RELIGIOUS CONFLICTS AND HAS SUFFERED THE WORST KIND OF ANGUISH
BECAUSE OF INEQUALITY OF TREATMENT FOR DIFFERENT GROUPS.  THERE WAS ONE
LAW FOR ONE AND A DIFFERENT LAW FOR ANOTHER.  NOTHING IS WRITTEN MORE
FIRMLY INTO OUR LAW THAN THE COMPACT OF THE PLYMOUTH VOYAGERS TO HAVE
JUST AND EQUAL LAWS.  TO SAY THAT ANY GROUP CANNOT BE ASSIMILATED IS TO
ADMIT THAT THE GREAT AMERICAN EXPERIMENT HAS FAILED, THAT OUR WAY OF
LIFE HAS FAILED WHEN CONFRONTED WITH THE NORMAL ATTACHMENT OF CERTAIN
GROUPS TO THE LANDS OF THEIR FOREFATHERS.  AS A NATION WE EMBRACE MANY
GROUPS, SOME OF THEM AMONG THE OLDEST SETTLEMENTS IN OUR MIDST, WHICH
HAVE ISOLATED THEMSELVES FOR RELIGIOUS AND CULTURAL REASONS.    TODAY
IS THE FIRST TIME, SO FAR AS I AM AWARE, THAT WE HAVE SUSTAINED A
SUBSTANTIAL RESTRICTION OF THE PERSONAL LIBERTY OF CITIZENS OF THE
UNITED STATES BASED UPON THE ACCIDENT OF RACE OR ANCESTRY.  UNDER THE
CURFEW ORDER HERE CHALLENGED NO LESS THAN 70,000 AMERICAN CITIZENS HAVE
BEEN PLACED UNDER A SPECIAL BAN AND DEPRIVED OF THEIR LIBERTY BECAUSE
OF THEIR PARTICULAR RACIAL INHERITANCE.  IN THIS SENSE IT BEARS A
MELANCHOLY RESEMBLANCE TO THE TREATMENT ACCORDED TO MEMBERS OF THE
JEWISH RACE IN GERMANY AND IN OTHER PARTS OF EUROPE.  THE RESULT IS THE
CREATION IN THIS COUNTRY OF TWO CLASSES OF CITIZENS FOR THE PURPOSES OF
A CRITICAL AND PERILOUS HOUR - TO SANCTION DISCRIMINATION BETWEEN
GROUPS OF UNITED STATES CITIZENS ON THE BASIS OF ANCESTRY.  IN MY
OPINION THIS GOES TO THE VERY BRINK OF CONSTITUTIONAL POWER. 

EXCEPT UNDER CONDITIONS OF GREAT EMERGENCY A REGULATION OF THIS KIND
APPLICABLE SOLELY TO CITIZENS OF A PARTICULAR RACIAL EXTRACTION WOULD
NOT BE REGARDED AS IN ACCORD WITH THE REQUIREMENT OF DUE PROCESS OF LAW
CONTAINED IN THE FIFTH AMENDMENT.  WE HAVE CONSISTENTLY HELD THAT
ATTEMPTS TO APPLY REGULATORY ACTION TO PARTICULAR GROUPS SOLELY ON THE
BASIS OF RACIAL DISTINCTION OR CLASSIFICATION IS NOT IN ACCORDANCE WITH
DUE PROCESS OF LAW AS PRESCRIBED BY THE FIFTH AND FOURTEENTH
AMENDMENTS.  CF. YICK WO V. HOPKINS, 118 U.S. 356, 369; YU CONG ENG V.
TRINIDAD, 271 U.S. 500, 524-28.  SEE ALSO BOYD V. FRANKFORT, 117 KY.
199, 77 S.W. 669; OPINION OF THE JUSTICES, 207 MASS. 601, 94 N.E. 558. 
IT IS TRUE THAT THE FIFTH AMENDMENT, UNLIKE THE FOURTEENTH, CONTAINS NO
GUARANTEE OF EQUAL PROTECTION OF THE LAWS.  CF. CURRIN V. WALLACE, 306
U.S. 1, 14.  IT IS ALSO TRUE THAT EVEN THE GUARANTY OF EQUAL PROTECTION
OF THE LAWS ALLOWS A MEASURE OF REASONABLE CLASSIFICATION.  IT BY NO
MEANS FOLLOWS, HOWEVER, THAT THERE MAY NOT BE DISCRIMINATION OF SUCH AN
INJURIOUS CHARACTER IN THE APPLICATION OF LAWS AS TO AMOUNT TO A DENIAL
OF DUE PROCESS OF LAW AS THAT TERM IS USED IN THE FIFTH AMENDMENT.  FN2
I THINK THAT POINT IS DANGEROUSLY APPROACHED WHEN WE HAVE ONE LAW FOR
THE MAJORITY OF OUR CITIZENS AND ANOTHER FOR THOSE OF A PARTICULAR
RACIAL HERITAGE. 

IN VIEW, HOWEVER, OF THE CRITICAL MILITARY SITUATION WHICH PREVAILED
ON THE PACIFIC COAST AREA IN THE SPRING OF 1942, AND THE URGENT
NECESSITY OF TAKING PROMPT AND EFFECTIVE ACTION TO SECURE DEFENSE
INSTALLATIONS AND MILITARY OPERATIONS AGAINST THE RISK OF SABOTAGE AND
ESPIONAGE, THE MILITARY AUTHORITIES SHOULD NOT BE REQUIRED TO CONFORM
TO STANDARDS OF REGULATORY ACTION APPROPRIATE TO NORMAL TIMES.  BECAUSE
OF THE DAMAGE WROUGHT BY THE JAPANESE AT PEARL HARBOR AND THE
AVAILABILITY OF NEW WEAPONS AND NEW TECHNIQUES WITH GREATER CAPACITY
FOR SPEED AND DECEPTION IN OFFENSIVE OPERATIONS, THE IMMEDIATE
POSSIBILITY OF AN ATTEMPT AT INVASION SOMEWHERE ALONG THE PACIFIC COAST
HAD TO BE RECKONED WITH.  HOWEVER DESIRABLE SUCH A PROCEDURE MIGHT HAVE
BEEN, THE MILITARY AUTHORITIES COULD HAVE REASONABLY CONCLUDED AT THE
TIME THAT DETERMINATIONS AS TO THE LOYALTY AND DEPENDABILITY OF
INDIVIDUAL MEMBERS OF THE LARGE AND WIDELY SCATTERED GROUP OF PERSONS
OF JAPANESE EXTRACTION ON THE WEST COAST COULD NOT BE MADE WITHOUT
DELAY THAT MIGHT HAVE HAD TRAGIC CONSEQUENCES.  MODERN WAR DOES NOT
ALWAYS WAIT FOR THE OBSERVANCE OF PROCEDURAL REQUIREMENTS THAT ARE
CONSIDERED ESSENTIAL AND APPROPRIATE UNDER NORMAL CONDITIONS. 
ACCORDINGLY I THINK THAT THE MILITARY ARM, CONFRONTED WITH THE PERIL OF
IMMINENT ENEMY ATTACK AND ACTING UNDER THE AUTHORITY CONFERRED BY THE
CONGRESS, MADE AN ALLOWABLE JUDGMENT AT THE TIME THE CURFEW RESTRICTION
WAS IMPOSED.  WHETHER SUCH A RESTRICTION IS VALID TODAY IS ANOTHER
MATTER. 

IN VOTING FOR AFFIRMANCE OF THE JUDGMENT I DO NOT WISH TO BE
UNDERSTOOD AS INTIMATING THAT THE MILITARY AUTHORITIES IN TIME OF WAR
ARE SUBJECT TO NO RESTRAINTS WHATSOEVER, OR THAT THEY ARE FREE TO
IMPOSE ANY RESTRICTIONS THEY MAY CHOOSE ON THE RIGHTS AND LIBERTIES OF
INDIVIDUAL CITIZENS OR GROUPS OF CITIZENS IN THOSE PLACES WHICH MAY BE
DESIGNATED AS "MILITARY AREAS."  WHILE THIS COURT SITS, IT HAS THE
INESCAPABLE DUTY OF SEEING THAT THE MANDATES OF THE CONSTITUTION ARE
OBEYED.  THAT DUTY EXISTS IN TIME OF WAR AS WELL AS IN TIME OF PEACE,
AND IN ITS PERFORMANCE WE MUST NOT FORGET THAT FEW INDEED HAVE BEEN THE
INVASIONS UPON ESSENTIAL LIBERTIES WHICH HAVE NOT BEEN ACCOMPANIED BY
PLEAS OF URGENT NECESSITY ADVANCED IN GOOD FAITH BY RESPONSIBLE MEN. 
CF. MR. JUSTICE BRANDEIS CONCURRING IN WHITNEY V. CALIFORNIA, 274 U.S.
357, 372. 

NOR DO I MEAN TO INTIMATE THAT CITIZENS OF A PARTICULAR RACIAL GROUP
WHOSE FREEDOM MAY BE CURTAILED WITHIN AN AREA THREATENED WITH ATTACK
SHOULD BE GENERALLY PREVENTED FROM LEAVING THE AREA AND GOING AT LARGE
IN OTHER AREAS THAT ARE NOT IN DANGER OF ATTACK AND WHERE SPECIAL
PRECAUTIONS ARE NOT NEEDED.  THEIR STATUS AS CITIZENS, THOUGH SUBJECT
TO REQUIREMENTS OF NATIONAL SECURITY AND MILITARY NECESSITY, SHOULD AT
ALL TIMES BE ACCORDED THE FULLEST CONSIDERATION AND RESPECT.  WHEN THE
DANGER IS PAST, THE RESTRICTIONS IMPOSED ON THEM SHOULD BE PROMPTLY
REMOVED AND THEIR FREEDOM OF ACTION FULLY RESTORED. 

FN1  SCHENCK V. UNITED STATES, 249 U.S. 47; DEBS V. UNITED STATES,
249 U.S. 211; UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S. 289,
305; NORTHERN PACIFIC RY. CO. V. NORTH DAKOTA, 250 U.S. 135; DAKOTA
CENTRAL TEL. CO. V. SOUTH DAKOTA, 250 U.S. 163; HIGHLAND V. RUSSELL CAR
CO., 279 U.S. 253; SELECTIVE DRAFT LAW CASES, 245 U.S. 366. 

FN2  FOR INSTANCE, IF PERSONS OF AN ACCUSED'S RACE WERE
SYSTEMATICALLY EXCLUDED FROM A JURY IN A FEDERAL COURT, ANY CONVICTION
UNDOUBTEDLY WOULD BE CONSIDERED A VIOLATION OF THE REQUIREMENT OF DUE
PROCESS OF LAW, EVEN THOUGH THE GROUND COMMONLY STATED FOR SETTING
ASIDE CONVICTIONS SO OBTAINED IN STATE COURTS IS DENIAL OF EQUAL
PROTECTION OF THE LAWS.  CF. GLASSER V. UNITED STATES, 315 U.S. 60,
WITH SMITH V. TEXAS, 311 U.S. 128. 

MR. JUSTICE RUTLEDGE, CONCURRING: 

I CONCUR IN THE COURT'S OPINION, EXCEPT FOR THE SUGGESTION, IF THAT
IS INTENDED (AS TO WHICH I MAKE NO ASSERTION), THAT THE COURTS HAVE NO
POWER TO REVIEW ANY ACTION A MILITARY OFFICER MAY "IN HIS DISCRETION"
FIND IT NECESSARY TO TAKE WITH RESPECT TO CIVILIAN CITIZENS IN MILITARY
AREAS OR ZONES, ONCE IT IS FOUND THAT AN EMERGENCY HAS CREATED THE
CONDITIONS REQUIRING OR JUSTIFYING THE CREATION OF THE AREA OR ZONE AND
THE INSTITUTION OF SOME DEGREE OF MILITARY CONTROL SHORT OF SUSPENDING
HABEAS CORPUS.  GIVEN THE GENERATING CONDITIONS FOR EXERCISE OF
MILITARY AUTHORITY AND RECOGNIZING THE WIDE LATITUDE FOR PARTICULAR
APPLICATIONS THAT ORDINARILY CREATES, I DO NOT THINK IT IS NECESSARY IN
THIS CASE TO DECIDE THAT THERE IS NO ACTION A PERSON IN THE POSITION OF
GENERAL DEWITT HERE MAY TAKE, AND WHICH HE MAY REGARD AS NECESSARY TO
THE REGION'S OR THE COUNTRY'S SAFETY, WHICH WILL CALL JUDICIAL POWER
INTO PLAY.  THE OFFICER OF COURSE MUST HAVE WIDE DISCRETION AND ROOM
FOR ITS OPERATION.  BUT IT DOES NOT FOLLOW THERE MAY NOT BE BOUNDS
BEYOND WHICH HE CANNOT GO AND, IF HE OVERSTEPS THEM, THAT THE COURTS
MAY NOT HAVE POWER TO PROTECT THE CIVILIAN CITIZEN.  BUT IN THIS CASE
THAT QUESTION NEED NOT BE FACED AND I MERELY ADD MY RESERVATION WITHOUT
INDICATION OF OPINION CONCERNING IT.
..END :






YASUI V. UNITED STATES, 320 U.S. 115 


NO. 871.  ARGUED MAY 11, 1943.  - DECIDED JUNE 21, 1943.  - 48 F.SUPP. 
40, AFFIRMED. 


THE CONVICTION OF A PERSON OF JAPANESE ANCESTRY FOR VIOLATION OF A
CURFEW ORDER IS SUSTAINED UPON THE AUTHORITY OF HIRABAYASHI V. UNITED
STATES, ANTE, P. 81; ALTHOUGH, FOR PURPOSES STATED IN THE OPINION, THE
CAUSE IS REMANDED TO THE DISTRICT COURT.  P. 117. 

YASUI V. UNITED STATES. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

RESPONSE TO QUESTIONS CERTIFIED BY THE CIRCUIT COURT OF APPEALS UPON
AN APPEAL TO THAT COURT FROM A CONVICTION IN THE DISTRICT COURT FOR
VIOLATION OF A CURFEW ORDER.  THIS COURT DIRECTED THAT THE ENTIRE
RECORD BE CERTIFIED SO THAT THE CASE COULD BE DETERMINED AS IF BROUGHT
HERE BY APPEAL. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO HIRABAYASHI V. UNITED STATES, ANTE, P.
81. 

THE CASE COMES HERE ON CERTIFICATE OF THE COURT OF APPEALS FOR THE
NINTH CIRCUIT, CERTIFYING TO US QUESTIONS OF LAW UPON WHICH IT DESIRES
INSTRUCTIONS FOR THE DECISION OF THE CASE.  SEC. 239 OF THE JUDICIAL
CODE AS AMENDED, 28 U.S.C. SEC. 346.  ACTING UNDER THAT SECTION WE
ORDERED THE ENTIRE RECORD TO BE CERTIFIED TO THIS COURT SO THAT WE
MIGHT PROCEED TO A DECISION, AS IF THE CASE HAD BEEN BROUGHT HERE BY
APPEAL. 

APPELLANT, AN AMERICAN-BORN PERSON OF JAPANESE ANCESTRY, WAS
CONVICTED IN THE DISTRICT COURT OF AN OFFENSE DEFINED BY THE ACT OF
MARCH 21, 1942.  56 STAT. 173.  THE INDICTMENT CHARGED HIM WITH
VIOLATION, ON MARCH 28, 1942, OF A CURFEW ORDER MADE APPLICABLE TO
PORTLAND, OREGON, BY PUBLIC PROCLAMATION NO. 3, ISSUED BY LT. GENERAL
J.L. DE.WITT ON MARCH 24, 1942.  7 FEDERAL REGISTER 2543.  THE VALIDITY
OF THE CURFEW WAS CONSIDERED IN THE HIRABAYASHI CASE, AND THIS CASE
PRESENTS THE SAME ISSUES AS THE CONVICTION ON COUNT 2 OF THE INDICTMENT
IN THAT CASE.  FROM THE EVIDENCE IT APPEARED THAT APPELLANT WAS BORN IN
OREGON IN 1916 OF ALIEN PARENTS; THAT WHEN HE WAS EIGHT YEARS OLD HE
SPENT A SUMMER IN JAPAN; THAT HE ATTENDED THE PUBLIC SCHOOLS IN OREGON,
AND ALSO, FOR ABOUT THREE YEARS, A JAPANESE LANGUAGE SCHOOL; THAT HE
LATER ATTENDED THE UNIVERSITY OF OREGON, FROM WHICH HE RECEIVED A.B.
AND LL.B. DEGREES; THAT HE WAS A MEMBER OF THE BAR OF OREGON, AND A
SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES, INFANTRY RESERVE;
THAT HE HAD BEEN EMPLOYED BY THE JAPANESE CONSULATE IN CHICAGO, BUT HAD
RESIGNED ON DECEMBER 8, 1941, AND IMMEDIATELY OFFERED HIS SERVICES TO
THE MILITARY AUTHORITIES; THAT HE HAD DISCUSSED WITH AN AGENT OF THE
FEDERAL BUREAU OF INVESTIGATION THE ADVISABILITY OF TESTING THE
CONSTITUTIONALITY OF THE CURFEW; AND THAT WHEN HE VIOLATED THE CURFEW
ORDER HE REQUESTED THAT HE BE ARRESTED SO THAT HE COULD TEST ITS
CONSTITUTIONALITY. 

THE DISTRICT COURT RULED THAT THE ACT OF MARCH 21, 1942, WAS
UNCONSTITUTIONAL AS APPLIED TO AMERICAN CITIZENS, BUT HELD THAT
APPELLANT, BY REASON OF HIS COURSE OF CONDUCT, MUST BE DEEMED TO HAVE
RENOUNCED HIS AMERICAN CITIZENSHIP.  48 F.SUPP.  40.  THE GOVERNMENT
DOES NOT UNDERTAKE TO SUPPORT THE CONVICTION ON THAT GROUND, SINCE NO
SUCH ISSUE WAS TENDERED BY THE GOVERNMENT, ALTHOUGH APPELLANT TESTIFIED
AT THE TRIAL THAT HE HAD NOT RENOUNCED HIS CITIZENSHIP.  SINCE WE HOLD,
AS IN THE HIRABAYASHI CASE, THAT THE CURFEW ORDER WAS VALID AS APPLIED
TO CITIZENS, IT FOLLOWS THAT APPELLANT'S CITIZENSHIP WAS NOT RELEVANT
TO THE ISSUE TENDERED BY THE GOVERNMENT AND THE CONVICTION MUST BE
SUSTAINED FOR THE REASONS STATED IN THE HIRABAYASHI CASE. 

BUT AS THE SENTENCE OF ONE YEAR'S IMPRISONMENT - THE MAXIMUM
PERMITTED BY THE STATUTE - WAS IMPOSED AFTER THE FINDING THAT APPELLANT
WAS NOT A CITIZEN, AND AS THE GOVERNMENT STATES THAT IT HAS NOT AND
DOES NOT NOW CONTROVERT HIS CITIZENSHIP, THE CASE IS AN APPROPRIATE ONE
FOR RESENTENCE IN THE LIGHT OF THESE CIRCUMSTANCES.  SEE HUSTY V.
UNITED STATES, 282 U.S. 694, 703.  THE CONVICTION WILL BE SUSTAINED BUT
THE JUDGMENT WILL BE VACATED AND THE CAUSE REMANDED TO THE DISTRICT
COURT FOR RESENTENCE OF APPELLANT, AND TO AFFORD THAT COURT OPPORTUNITY
TO STRIKE ITS FINDINGS AS TO APPELLANT'S LOSS OF UNITED STATES
CITIZENSHIP.  SO ORDERED. 
..END :

















SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118 


NO. 2.  ARGUED NOVEMBER 9, 1942.  REARGUED MARCH 12, 1943.  - DECIDED
JUNE 21, 1943.  - 119 F.2D 500, REVERSED. 


1.  ASSUMING THAT, IN THE ABSENCE OF FRAUD, A CERTIFICATE OF
CITIZENSHIP CAN BE SET ASIDE UNDER SEC. 15 OF THE NATURALIZATION ACT OF
1906 AS "ILLEGALLY PROCURED" BECAUSE THE FINDING BY THE NATURALIZATION
COURT THAT THE APPLICANT WAS ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION WAS ERRONEOUS, THE BURDEN IS UPON THE GOVERNMENT TO PROVE
THE ERROR BY CLEAR, UNEQUIVOCAL AND CONVINCING EVIDENCE; A MERE
PREPONDERANCE OF EVIDENCE WHICH LEAVES THE ISSUE IN DOUBT WILL NOT
SUFFICE.  P. 124. 

2.  IN CONSTRUING THE ACTS OF CONGRESS GOVERNING NATURALIZATION AND
DENATURALIZATION, GENERAL EXPRESSIONS SHOULD NOT BE SO CONSTRUED AS TO
CIRCUMSCRIBE LIBERTY OF POLITICAL THOUGHT.  P. 132. 

3.  THE GOVERNMENT SUED IN 1939 TO CANCEL A CERTIFICATE OF
CITIZENSHIP, GRANTED IN 1927, CHARGING THAT IT HAD BEEN "ILLEGALLY
PROCURED," IN THAT THE DEFENDANT AT THE TIME OF THE NATURALIZATION AND
FOR FIVE YEARS PRECEDING WAS NOT ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION, BUT WAS IN FACT A MEMBER OF, AND AFFILIATED WITH, AND
BELIEVED IN AND SUPPORTED THE PRINCIPLES OF, CERTAIN COMMUNISTIC
ORGANIZATIONS IN THE UNITED STATES, WHICH WERE OPPOSED TO THE
PRINCIPLES OF THE CONSTITUTION AND ADVOCATED THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE.  HELD: 

(1)  THAT THE EVIDENCE, WHICH IS REVIEWED IN THE OPINION, FAILS TO
SHOW WITH THE REQUISITE DEGREE OF CERTAINTY THAT DURING THE PERIOD IN
QUESTION THE DEFENDANT WAS NOT ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION.  P. 135. 

(2)  ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION IS NOT
NECESSARILY INCOMPATIBLE WITH A DESIRE TO HAVE IT AMENDED.  P. 137. 

(3)  UTTERANCES OF CERTAIN LEADERS OF THE PARTY ORGANIZATIONS IN
QUESTION, ADVOCATING FORCE AND VIOLENCE, ARE NOT IMPUTABLE TO THE
DEFENDANT.  P. 146. 

(4)  UNDER THE CONFLICTING EVIDENCE IN THIS CASE, THE COURT CAN NOT
SAY THAT THE GOVERNMENT PROVED WITH THE REQUISITE CERTAINTY THAT THE
ATTITUDE OF THE COMMUNIST PARTY IN THE UNITED STATES IN 1927 TOWARDS
FORCE AND VIOLENCE WAS IN THE CATEGORY OF AGITATION AND EXHORTATION
CALLING FOR PRESENT VIOLENT ACTION WHICH CREATES A CLEAR AND PRESENT
DANGER OF PUBLIC DISORDER OR OTHER SUBSTANTIVE EVIL, RATHER THAN A MERE
DOCTRINAL JUSTIFICATION OR PREDICTION OF THE USE OF FORCE UNDER
HYPOTHETICAL CONDITIONS AT SOME INDEFINITE FUTURE TIME, NOT CALCULATED
OR INTENDED TO BE PRESENTLY ACTED UPON, BUT LEAVING OPPORTUNITY FOR
GENERAL DISCUSSION AND CALM REASON.  P. 157. 

4.  THE COURT DOES NOT CONSIDER FINDINGS MADE BY THE DISTRICT COURT
IN THIS CASE UPON ISSUES OUTSIDE OF THE SCOPE OF THE COMPLAINT; IN A
DENATURALIZATION CASE, AS IN A CRIMINAL CASE, THE GOVERNMENT IS LIMITED
TO THE MATTERS CHARGED IN THE COMPLAINT.  P. 159. 

SCHNEIDERMAN V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 314 U.S. 597, TO REVIEW THE AFFIRMANCE OF A JUDGMENT (33
F.SUPP.  510) WHICH CANCELED A CERTIFICATE OF CITIZENSHIP. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THIS CASE HERE ON CERTIORARI, 314 U.S. 597, BECAUSE OF ITS
IMPORTANCE AND ITS POSSIBLE RELATION TO FREEDOM OF THOUGHT.  THE
QUESTION IS WHETHER THE NATURALIZATION OF PETITIONER, AN ADMITTED
MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES, WAS PROPERLY SET
ASIDE BY THE COURTS BELOW SOME TWELVE YEARS AFTER IT WAS GRANTED.  WE
AGREE WITH OUR BRETHREN OF THE MINORITY THAT OUR RELATIONS WITH RUSSIA,
AS WELL AS OUR VIEWS REGARDING ITS GOVERNMENT AND THE MERITS OF
COMMUNISM ARE IMMATERIAL TO A DECISION OF THIS CASE.  OUR CONCERN IS
WITH WHAT CONGRESS MEANT BY CERTAIN STATUTES AND WHETHER THE GOVERNMENT
HAS PROVED ITS CASE UNDER THEM. 

WHILE IT IS OUR HIGH DUTY TO CARRY OUT THE WILL OF CONGRESS, IN THE
PERFORMANCE OF THIS DUTY WE SHOULD HAVE A JEALOUS REGARD FOR THE RIGHTS
OF PETITIONER.  WE SHOULD LET OUR JUDGMENT BE GUIDED SO FAR AS THE LAW
PERMITS BY THE SPIRIT OF FREEDOM AND TOLERANCE IN WHICH OUR NATION WAS
FOUNDED, AND BY A DESIRE TO SECURE THE BLESSINGS OF LIBERTY IN THOUGHT
AND ACTION TO ALL THOSE UPON WHOM THE RIGHT OF AMERICAN CITIZENSHIP HAS
BEEN CONFERRED BY STATUTE, AS WELL AS TO THE NATIVE BORN.  AND WE
CERTAINLY SHOULD PRESUME THAT CONGRESS WAS MOTIVATED BY THESE LOFTY
PRINCIPLES. 

WE ARE DIRECTLY CONCERNED ONLY WITH THE RIGHTS OF THIS PETITIONER AND
THE CIRCUMSTANCES SURROUNDING HIS NATURALIZATION, BUT WE SHOULD NOT
OVERLOOK THE FACT THAT WE ARE A HETEROGENEOUS PEOPLE.  IN SOME OF OUR
LARGER CITIES A MAJORITY OF THE SCHOOL CHILDREN ARE THE OFFSPRING OF
PARENTS ONLY ONE GENERATION, IF THAT FAR, REMOVED FROM THE STEERAGE OF
THE IMMIGRANT SHIP, CHILDREN OF THOSE WHO SOUGHT REFUGE IN THE NEW
WORLD FROM THE CRUELTY AND OPPRESSION OF THE OLD, WHERE MEN HAVE BEEN
BURNED AT THE STAKE, IMPRISONED, AND DRIVEN INTO EXILE IN COUNTLESS
NUMBERS FOR THEIR POLITICAL AND RELIGIOUS BELIEFS.  HERE THEY HAVE
HOPED TO ACHIEVE A POLITICAL STATUS AS CITIZENS IN A FREE WORLD IN
WHICH MEN ARE PRIVILEGED TO THINK AND ACT AND SPEAK ACCORDING TO THEIR
CONVICTIONS, WITHOUT FEAR OF PUNISHMENT OR FURTHER EXILE SO LONG AS
THEY KEEP THE PEACE AND OBEY THE LAW. 

THIS PROCEEDING WAS BEGUN ON JUNE 30, 1939, UNDER THE PROVISIONS OF
SEC. 15 OF THE ACT OF JUNE 29, 1906, 34 STAT. 596, TO CANCEL
PETITIONER'S CERTIFICATE OF CITIZENSHIP GRANTED IN 1927.  THIS SECTION
GIVES THE UNITED STATES THE RIGHT AND THE DUTY TO SET ASIDE AND CANCEL
CERTIFICATES OF CITIZENSHIP ON THE GROUND OF "FRAUD" OR ON THE GROUND
THAT THEY WERE "ILLEGALLY PROCURED."  FN1 THE COMPLAINT CHARGED THAT
THE CERTIFICATE HAD BEEN ILLEGALLY PROCURED IN THAT PETITIONER WAS NOT,
AT THE TIME OF HIS NATURALIZATION, AND DURING THE FIVE YEARS PRECEDING
HIS NATURALIZATION "HAD NOT BEHAVED AS, A PERSON ATTACHED TO THE
PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES AND WELL DISPOSED
TO THE GOOD ORDER AND HAPPINESS OF THE UNITED STATES,  FN2  BUT IN
TRUTH AND IN FACT DURING ALL OF SAID TIMES, RESPONDENT (PETITIONER) WAS
A MEMBER OF AND AFFILIATED WITH AND BELIEVED IN AND SUPPORTED THE
PRINCIPLES OF CERTAIN ORGANIZATIONS THEN KNOWN AS THE WORKERS
(COMMUNIST) PARTY OF AMERICA AND THE YOUNG WORKERS (COMMUNIST) LEAGUE
OF AMERICA, WHOSE PRINCIPLES WERE OPPOSED TO THE PRINCIPLES OF THE
CONSTITUTION OF THE UNITED STATES AND ADVISED, ADVOCATED AND TAUGHT THE
OVERTHROW OF THE GOVERNMENT, CONSTITUTION AND LAWS OF THE UNITED STATES
BY FORCE AND VIOLENCE."  THE COMPLAINT ALSO CHARGED FRAUDULENT
PROCUREMENT IN THAT PETITIONER CONCEALED HIS COMMUNIST AFFILIATION FROM
THE NATURALIZATION COURT.  THE GOVERNMENT PROCEEDS HERE NOT UPON THE
CHARGE OF FRAUD BUT UPON THE CHARGE OF ILLEGAL PROCUREMENT. 

THIS IS NOT A NATURALIZATION PROCEEDING IN WHICH THE GOVERNMENT IS
BEING ASKED TO CONFER THE PRIVILEGE OF CITIZENSHIP UPON AN APPLICANT. 
INSTEAD THE GOVERNMENT SEEKS TO TURN THE CLOCK BACK TWELVE YEARS AFTER
FULL CITIZENSHIP WAS CONFERRED UPON PETITIONER BY A JUDICIAL DECREE,
AND TO DEPRIVE HIM OF THE PRICELESS BENEFITS THAT DERIVE FROM THAT
STATUS.  IN ITS CONSEQUENCES IT IS MORE SERIOUS THAN A TAKING OF ONE'S
PROPERTY, OR THE IMPOSITION OF A FINE OR OTHER PENALTY.  FOR IT IS SAFE
TO ASSERT THAT NOWHERE IN THE WORLD TODAY IS THE RIGHT OF CITIZENSHIP
OF GREATER WORTH TO AN INDIVIDUAL THAN IT IS IN THIS COUNTRY.  IT WOULD
BE DIFFICULT TO EXAGGERATE ITS VALUE AND IMPORTANCE.  BY MANY IT IS
REGARDED AS THE HIGHEST HOPE OF CIVILIZED MEN.  THIS DOES NOT MEAN THAT
ONCE GRANTED TO AN ALIEN, CITIZENSHIP CANNOT BE REVOKED OR CANCELLED ON
LEGAL GROUNDS UNDER APPROPRIATE PROOF.  BUT SUCH A RIGHT ONCE CONFERRED
SHOULD NOT BE TAKEN AWAY WITHOUT THE CLEAREST SORT OF JUSTIFICATION AND
PROOF.  SO, WHATEVER MAY BE THE RULE IN A NATURALIZATION PROCEEDING
(SEE UNITED STATES V. MANZI, 276 U.S. 463, 467), IN AN ACTION
INSTITUTED UNDER SEC. 15 FOR THE PURPOSE OF DEPRIVING ONE OF THE
PRECIOUS RIGHT OF CITIZENSHIP PREVIOUSLY CONFERRED WE BELIEVE THE FACTS
AND THE LAW SHOULD BE CONSTRUED AS FAR AS IS REASONABLY POSSIBLE IN
FAVOR OF THE CITIZEN.  ESPECIALLY IS THIS SO WHEN THE ATTACK IS MADE
LONG AFTER THE TIME WHEN THE CERTIFICATE OF CITIZENSHIP WAS GRANTED AND
THE CITIZEN HAS MEANWHILE MET HIS OBLIGATIONS AND HAS COMMITTED NO ACT
OF LAWLESSNESS.  IT IS NOT DENIED THAT THE BURDEN OF PROOF IS ON THE
GOVERNMENT IN THIS CASE.  FOR REASONS PRESENTLY TO BE STATED THIS
BURDEN MUST BE MET WITH EVIDENCE OF A CLEAR AND CONVINCING CHARACTER
THAT WHEN CITIZENSHIP WAS CONFERRED UPON PETITIONER IN 1927 IT WAS NOT
DONE IN ACCORDANCE WITH STRICT LEGAL REQUIREMENTS. 

WE ARE DEALING HERE WITH A COURT DECREE ENTERED AFTER AN OPPORTUNITY
TO BE HEARD.  AT THE TIME PETITIONER SECURED HIS CERTIFICATE OF
CITIZENSHIP FROM THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF CALIFORNIA NOTICE OF THE FILING OF THE NATURALIZATION PETITION WAS
REQUIRED TO BE GIVEN NINETY DAYS BEFORE THE PETITION WAS ACTED ON (SEC.
6 OF THE ACT OF 1906), THE HEARING ON THE PETITION WAS TO TAKE PLACE IN
OPEN COURT (SEC. 9), AND THE UNITED STATES HAD THE RIGHT TO APPEAR, TO
CROSS-EXAMINE PETITIONER AND HIS WITNESSES, TO INTRODUCE EVIDENCE, AND
TO OPPOSE THE PETITION (SEC. 11).  IN ACTING UPON THE PETITION THE
DISTRICT COURT EXERCISED THE JUDICIAL POWER CONFERRED BY ARTICLE III OF
THE CONSTITUTION, AND THE GOVERNMENT HAD THE RIGHT TO APPEAL FROM THE
DECISION GRANTING NATURALIZATION.  TUTUN V. UNITED STATES, 270 U.S.
568.  THE RECORD BEFORE US DOES NOT REVEAL THE CIRCUMSTANCES UNDER
WHICH PETITIONER WAS NATURALIZED EXCEPT THAT IT TOOK PLACE IN OPEN
COURT.  WE DO NOT KNOW WHETHER OR NOT THE GOVERNMENT EXERCISED ITS
RIGHT TO APPEAR AND TO APPEAL.  WHETHER IT DID OR NOT, THE HARD FACT
REMAINS THAT WE ARE HERE RE-EXAMINING A JUDGMENT, AND THE RIGHTS
SOLEMNLY CONFERRED UNDER IT. 

THIS IS THE FIRST CASE TO COME BEFORE US IN WHICH THE GOVERNMENT HAS
SOUGHT TO SET ASIDE A DECREE OF NATURALIZATION YEARS AFTER IT WAS
GRANTED ON A CHARGE THAT THE FINDING OF ATTACHMENT WAS ERRONEOUS. 
ACCORDINGLY FOR THE FIRST TIME WE HAVE HAD TO CONSIDER THE NATURE AND
SCOPE OF THE GOVERNMENT'S RIGHT IN A DENATURALIZATION PROCEEDING TO RE
EXAMINE A FINDING AND JUDGMENT OF ATTACHMENT UPON A CHARGE OF ILLEGAL
PROCUREMENT.  BECAUSE OF THE VIEW WE TAKE OF THIS CASE WE DO NOT REACH,
AND THEREFORE DO NOT CONSIDER, TWO QUESTIONS WHICH HAVE BEEN RAISED
CONCERNING THE SCOPE OF THAT RIGHT. 

THE FIRST QUESTION IS WHETHER, ASIDE FROM GROUNDS SUCH AS LACK OF
JURISDICTION OR THE KIND OF FRAUD WHICH TRADITIONALLY VITIATES
JUDGMENTS, CF. UNITED STATES V. THROCKMORTON, 98 U.S. 61; KIBBE V.
BENSON, 17 WALL.  624, CONGRESS CAN CONSTITUTIONALLY ATTACH TO THE
EXERCISE OF THE JUDICIAL POWER UNDER ARTICLE III OF THE CONSTITUTION,
AUTHORITY TO RE-EXAMINE A JUDGMENT GRANTING A CERTIFICATE OF
CITIZENSHIP AFTER THAT JUDGMENT HAS BECOME FINAL BY EXHAUSTION OF THE
APPELLATE PROCESS OR BY A FAILURE TO INVOKE IT.  FN3 

THE SECOND QUESTION IS WHETHER UNDER THE ACT OF 1906 AS IT WAS IN
1927 THE GOVERNMENT, IN THE ABSENCE OF A CLAIM OF FRAUD AND RELYING
WHOLLY UPON A CHARGE OF ILLEGAL PROCUREMENT, CAN SECURE A DE NOVO RE
EXAMINATION OF A NATURALIZATION COURT'S FINDING AND JUDGMENT THAT AN
APPLICANT FOR CITIZENSHIP WAS ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION. 

WE DO NOT CONSIDER THESE QUESTIONS.  FOR THOUGH WE ASSUME, WITHOUT
DECIDING, THAT IN THE ABSENCE OF FRAUD A CERTIFICATE OF NATURALIZATION
CAN BE SET ASIDE UNDER SEC. 15 AS "ILLEGALLY PROCURED" BECAUSE THE
FINDING AS TO ATTACHMENT WOULD LATER SEEM TO BE ERRONEOUS, WE ARE OF
THE OPINION THAT THIS JUDGMENT SHOULD BE REVERSED.  IF A FINDING OF
ATTACHMENT CAN BE SO RECONSIDERED IN A DENATURALIZATION SUIT, OUR
DECISIONS MAKE IT PLAIN THAT THE GOVERNMENT NEEDS MORE THAN A BARE
PREPONDERANCE OF THE EVIDENCE TO PREVAIL.  THE REMEDY AFFORDED THE
GOVERNMENT BY THE DENATURALIZATION STATUTE HAS BEEN SAID TO BE A
NARROWER ONE THAN THAT OF DIRECT APPEAL FROM THE GRANTING OF A
PETITION.  TUTUN V. UNITED STATES, 270 U.S. 568, 579; CF. UNITED STATES
V. NESS, 245 U.S. 319, 325.  JOHANNESSEN V. UNITED STATES STATES THAT A
CERTIFICATE OF CITIZENSHIP IS "AN INSTRUMENT GRANTING POLITICAL
PRIVILEGES, AND OPEN LIKE OTHER PUBLIC GRANTS TO BE REVOKED IF AND WHEN
IT SHALL BE FOUND TO HAVE BEEN UNLAWFULLY OR FRAUDULENTLY PROCURED.  IT
IS IN THIS RESPECT CLOSELY ANALOGOUS TO A PUBLIC GRANT OF LAND,  ...  "
225 U.S. 227, 238.  SEE ALSO TUTUN V. UNITED STATES, SUPRA.  TO SET
ASIDE SUCH A GRANT THE EVIDENCE MUST BE "CLEAR, UNEQUIVOCAL, AND
CONVINCING" - "IT CANNOT BE DONE UPON A BARE PREPONDERANCE OF EVIDENCE
WHICH LEAVES THE ISSUE IN DOUBT."  MAXWELL LAND-GRANT CASE, 121 U.S.
325, 381; UNITED STATES V. SAN JACINTO TIN CO., 125 U.S. 273, 300; CF.
UNITED STATES V. ROVIN, 12 F.2D 942, 944.  SEE WIGMORE, EVIDENCE, (3D
ED.)  SEC. 2498.  THIS IS SO BECAUSE RIGHTS ONCE CONFERRED SHOULD NOT
BE LIGHTLY REVOKED.  AND MORE ESPECIALLY IS THIS TRUE WHEN THE RIGHTS
ARE PRECIOUS AND WHEN THEY ARE CONFERRED BY SOLEMN ADJUDICATION, AS IS
THE SITUATION WHEN CITIZENSHIP IS GRANTED.  THE GOVERNMENT'S EVIDENCE
IN THIS CASE DOES NOT MEASURE UP TO THIS EXACTING STANDARD. 

CERTAIN FACTS ARE UNDISPUTED.  PETITIONER CAME TO THIS COUNTRY FROM
RUSSIA IN 1907 OR 1908 WHEN HE WAS APPROXIMATELY THREE.  IN 1922, AT
THE AGE OF SIXTEEN, HE BECAME A CHARTER MEMBER OF THE YOUNG WORKERS
(NOW COMMUNIST) LEAGUE IN LOS ANGELES AND REMAINED A MEMBER UNTIL 1929
OR 1930.  IN 1924, AT THE AGE OF EIGHTEEN, HE FILED HIS DECLARATION OF
INTENTION TO BECOME A CITIZEN.  LATER IN THE SAME YEAR OR EARLY IN 1925
HE BECAME A MEMBER OF THE WORKERS PARTY, THE PREDECESSOR OF THE
COMMUNIST PARTY OF THE UNITED STATES.  THAT MEMBERSHIP HAS CONTINUED TO
THE PRESENT.  HIS PETITION FOR NATURALIZATION WAS FILED ON JANUARY 18,
1927, AND HIS CERTIFICATE OF CITIZENSHIP WAS ISSUED ON JUNE 10, 1927,
BY THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CALIFORNIA.  HE HAD NOT BEEN ARRESTED OR SUBJECTED TO CENSURE PRIOR TO
1927,  FN4  AND THERE IS NOTHING IN THE RECORD INDICATING THAT HE WAS
EVER CONNECTED WITH ANY OVERT ILLEGAL OR VIOLENT ACTION OR WITH ANY
DISTURBANCE OF ANY SORT. 

FOR ITS CASE THE UNITED STATES CALLED PETITIONER, ONE HUMPHREYS, A
FORMER MEMBER OF THE COMMUNIST PARTY, AND ONE HYNES, A LOS ANGELES
POLICE OFFICER FORMERLY IN CHARGE OF THE RADICAL SQUAD, AS WITNESSES,
AND INTRODUCED IN EVIDENCE A NUMBER OF DOCUMENTS.  PETITIONER TESTIFIED
ON HIS OWN BEHALF, INTRODUCED SOME DOCUMENTARY EVIDENCE, AND READ INTO
THE RECORD TRANSCRIPTS OF THE TESTIMONY OF TWO UNIVERSITY PROFESSORS
GIVEN IN ANOTHER PROCEEDING. 

PETITIONER TESTIFIED TO THE FOLLOWING:  AS A BOY HE LIVED IN LOS
ANGELES IN POVERTY-STRICKEN CIRCUMSTANCES AND JOINED THE YOUNG WORKERS
LEAGUE TO STUDY WHAT THE PRINCIPLES OF COMMUNISM HAD TO SAY ABOUT THE
CONDITIONS OF SOCIETY.  HE CONSIDERED HIS MEMBERSHIP AND ACTIVITIES IN
THE LEAGUE AND THE PARTY DURING THE FIVE-YEAR PERIOD BETWEEN THE AGES
OF SIXTEEN AND TWENTY-ONE BEFORE HE WAS NATURALIZED, AS AN ATTEMPT TO
INVESTIGATE AND STUDY THE CAUSES AND REASONS BEHIND SOCIAL AND ECONOMIC
CONDITIONS.  MEANWHILE HE WAS WORKING HIS WAY THROUGH NIGHT HIGH SCHOOL
AND COLLEGE.  FROM 1922 TO ABOUT 1925 HE WAS "EDUCATIONAL DIRECTOR" OF
THE LEAGUE.  THE DUTIES OF THIS NON-SALARIED POSITION WERE TO ORGANIZE
CLASSES, OPEN TO THE PUBLIC, FOR THE STUDY OF MARXIST THEORY, TO
REGISTER STUDENTS AND TO SEND OUT NOTICES FOR MEETINGS; PETITIONER DID
NO TEACHING.  DURING 1925 AND 1926 HE WAS CORRESPONDING SECRETARY OF
THE PARTY IN LOS ANGELES; THIS WAS A CLERICAL, NOT AN EXECUTIVE
POSITION.  IN 1928 HE BECAME AN ORGANIZER OR OFFICIAL SPOKESMAN FOR THE
LEAGUE.  HIS FIRST EXECUTIVE POSITION WITH THE PARTY CAME IN 1930 WHEN
HE WAS MADE AN ORGANIZATIONAL SECRETARY FIRST IN CALIFORNIA, THEN IN
CONNECTICUT AND LATER IN MINNESOTA WHERE HE WAS THE COMMUNIST PARTY
CANDIDATE FOR GOVERNOR IN 1932.  SINCE 1934 HE HAS BEEN A MEMBER OF THE
PARTY'S NATIONAL COMMITTEE.  AT PRESENT HE IS SECRETARY OF THE PARTY IN
CALIFORNIA.    PETITIONER TESTIFIED FURTHER THAT DURING ALL THE TIME HE
HAS BELONGED TO THE LEAGUE AND THE PARTY HE HAS SUBSCRIBED TO THE
PRINCIPLES OF THOSE ORGANIZATIONS.  HE STATED THAT HE "BELIEVED IN THE
ESSENTIAL CORRECTNESS OF THE MARX THEORY AS APPLIED BY THE COMMUNIST
PARTY OF THE UNITED STATES," THAT HE SUBSCRIBED "TO THE PHILOSOPHY AND
PRINCIPLES OF SOCIALISM AS MANIFESTED IN THE WRITINGS OF LENIN," AND
THAT HIS UNDERSTANDING AND INTERPRETATION OF THE PROGRAM, PRINCIPLES
AND PRACTICE OF THE PARTY SINCE HE JOINED "WERE AND ARE ESSENTIALLY THE
SAME AS THOSE ENUNCIATED" IN THE PARTY'S 1938 CONSTITUTION.  HE DENIED
THE CHARGES OF THE COMPLAINT AND SPECIFICALLY DENIED THAT HE OR THE
PARTY ADVOCATED THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY
FORCE AND VIOLENCE, AND THAT HE WAS NOT ATTACHED TO THE PRINCIPLES OF
THE CONSTITUTION.  HE CONSIDERED MEMBERSHIP IN THE PARTY COMPATIBLE
WITH THE OBLIGATIONS OF AMERICAN CITIZENSHIP.  HE STATED THAT HE
BELIEVED IN RETENTION OF PERSONAL PROPERTY FOR PERSONAL USE BUT
ADVOCATED SOCIAL OWNERSHIP OF THE MEANS OF PRODUCTION AND EXCHANGE,
WITH COMPENSATION TO THE OWNERS.  HE BELIEVED AND HOPED THAT
SOCIALIZATION COULD BE ACHIEVED HERE BY DEMOCRATIC PROCESSES BUT
HISTORY SHOWED THAT THE RULING MINORITY HAS ALWAYS USED FORCE AGAINST
THE MAJORITY BEFORE SURRENDERING POWER.  BY DICTATORSHIP OF THE
PROLETARIAT PETITIONER MEANT THAT THE "MAJORITY OF THE PEOPLE SHALL
REALLY DIRECT THEIR OWN DESTINIES AND USE THE INSTRUMENT OF THE STATE
FOR THESE TRULY DEMOCRATIC ENDS."  HE STATED THAT HE WOULD BEAR ARMS
AGAINST HIS NATIVE RUSSIA IF NECESSARY. 

HUMPHREYS TESTIFIED THAT HE HAD BEEN A MEMBER OF THE COMMUNIST PARTY
AND UNDERSTOOD HE WAS EXPELLED BECAUSE HE REFUSED TO TAKE ORDERS FROM
PETITIONER.  HE HAD BEEN TAUGHT THAT PRESENT FORMS OF GOVERNMENT WOULD
HAVE TO BE ABOLISHED "THROUGH THE DICTATORSHIP OF THE PROLETARIAT"
WHICH WOULD BE ESTABLISHED BY A "REVOLUTIONARY PROCESS."  HE ASSERTED
THAT THE PROGRAM OF THE PARTY WAS THE SOCIALIZATION OF ALL PROPERTY
WITHOUT COMPENSATION.  WITH REGARD TO ADVOCACY OF FORCE AND VIOLENCE HE
SAID:  "THE COMMUNIST PARTY TOOK THE DEFENSIVE, AND PUT THE FIRST USERS
OF FORCE UPON THE CAPITALISTIC GOVERNMENT; THEY CLAIMED THAT THE
CAPITALISTIC GOVERNMENT WOULD RESIST THE ESTABLISHMENT OF THE SOVIET
SYSTEM, THROUGH FORCE AND VIOLENCE, AND THAT THE WORKING CLASS WOULD BE
JUSTIFIED IN USING FORCE AND VIOLENCE TO ESTABLISH THE SOVIET SYSTEM OF
SOCIETY." 

HYNES TESTIFIED THAT HE HAD BEEN A MEMBER OF THE PARTY FOR EIGHT
MONTHS IN 1922.  HE STATED THAT THE COMMUNIST METHOD OF BRINGING ABOUT
A CHANGE IN THE FORM OF GOVERNMENT IS ONE OF FORCE AND VIOLENCE; HE
BASED THIS STATEMENT UPON:  "KNOWLEDGE I HAVE GAINED AS A MEMBER IN
1922 AND FROM WHAT FURTHER KNOWLEDGE I HAVE GAINED FROM READING VARIOUS
OFFICIAL PUBLICATIONS, PUBLISHED AND CIRCULATED BY THE COMMUNIST PARTY
AND FROM OBSERVATION AND ACTUAL CONTACT WITH THE ACTIVITIES OF THE
COMMUNIST PARTY  ...  " FN5  ON CROSS-EXAMINATION HYNES ADMITTED THAT
HE NEVER ATTEMPTED A PHILOSOPHIC ANALYSIS OF THE LITERATURE HE READ,
BUT ONLY READ IT TO SECURE EVIDENCE, READING AND UNDERSCORING THOSE
PORTIONS WHICH, IN HIS OPINION, "HAD TO DO WITH FORCE OR VIOLENCE OR
OVERTHROWING OF THIS SYSTEM OF GOVERNMENT OTHER THAN BY LAWFUL MEANS
PROVIDED IN THE CONSTITUTION."  HE TESTIFIED THAT HE NEVER SAW ANY
BEHAVIOR ON PETITIONER'S PART THAT BROUGHT HIM INTO CONFLICT WITH ANY
LAW. 

THE TESTIMONY OF THE TWO PROFESSORS DISCUSSED MARXIAN THEORY AS
EVIDENCED BY THE WRITINGS OF MARX, ENGELS AND LENIN, AND CONCLUDED THAT
IT DID NOT ADVOCATE THE USE OF FORCE AND VIOLENCE AS A METHOD OF
ATTAINING ITS OBJECTIVE. 

IN ITS WRITTEN OPINION THE DISTRICT COURT HELD THAT PETITIONER'S
CERTIFICATE OF NATURALIZATION WAS ILLEGALLY PROCURED BECAUSE THE
ORGANIZATIONS TO WHICH PETITIONER BELONGED WERE OPPOSED TO THE
PRINCIPLES OF THE CONSTITUTION AND ADVISED, TAUGHT AND ADVOCATED THE
OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE, AND THEREFORE
PETITIONER, "BY REASON OF HIS MEMBERSHIP IN SUCH ORGANIZATIONS AND
PARTICIPATION IN THEIR ACTIVITIES, WAS NOT 'ATTACHED TO THE PRINCIPLES
OF THE CONSTITUTION OF THE UNITED STATES, AND WELL DISPOSED TO THE GOOD
ORDER AND HAPPINESS OF THE SAME.'"  33 F.SUPP.  510, 513. 

THE DISTRICT COURT ALSO MADE PURPORTED FINDINGS OF FACTS TO THE
EFFECT THAT PETITIONER WAS NOT ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE
SAME, AND WAS A DISBELIEVER IN ORGANIZED GOVERNMENT, THAT HE
FRAUDULENTLY CONCEALED HIS MEMBERSHIP IN THE LEAGUE AND THE PARTY FROM
THE NATURALIZATION COURT, AND THAT HIS OATH OF ALLEGIANCE WAS FALSE. 
THE CONCLUSION OF LAW WAS THAT THE CERTIFICATE WAS ILLEGALLY AND
FRAUDULENTLY PROCURED.  THE PERTINENT FINDINGS OF FACT ON THESE POINTS,
SET FORTH IN THE MARGIN, FN6  ARE BUT THE MOST GENERAL CONCLUSIONS OF
ULTIMATE FACT.  IT IS IMPOSSIBLE TO TELL FROM THEM UPON WHAT UNDERLYING
FACTS THE COURT RELIED, AND WHETHER PROPER STATUTORY STANDARDS WERE
OBSERVED.  IF IT WERE NOT RENDERED UNNECESSARY BY THE BROAD VIEW WE
TAKE OF THIS CASE, WE WOULD BE INCLINED TO REVERSE AND REMAND TO THE
DISTRICT COURT FOR THE PURPOSE OF MAKING ADEQUATE FINDINGS. 

THE CIRCUIT COURT OF APPEALS AFFIRMED ON THE GROUND THAT THE
CERTIFICATE WAS ILLEGALLY PROCURED, HOLDING THAT THE FINDING THAT
PETITIONER'S OATH WAS FALSE WAS NOT "CLEARLY ERRONEOUS."  119 F.2D
500.  FN7  WE GRANTED CERTIORARI, AND AFTER HAVING HEARD ARGUMENT AND
REARGUMENT, NOW REVERSE THE JUDGMENTS BELOW. 

        I 

THE CONSTITUTION AUTHORIZES CONGRESS "TO ESTABLISH AN UNIFORM RULE OF
NATURALIZATION" (ART. I, SEC. 8, CL. 4), AND WE MAY ASSUME THAT
NATURALIZATION IS A PRIVILEGE, TO BE GIVEN OR WITHHELD ON SUCH
CONDITIONS AS CONGRESS SEES FIT.  CF. UNITED STATES V. MACINTOSH, 283
U.S. 605, 615, AND THE DISSENTING OPINION OF CHIEF JUSTICE HUGHES,
IBID. AT P. 627.  SEE ALSO TUTUN V. UNITED STATES, 270 U.S. 568, 578;
TURNER V. WILLIAMS, 194 U.S. 279.  BUT BECAUSE OF OUR FIRMLY ROOTED
TRADITION OF FREEDOM OF BELIEF, WE CERTAINLY WILL NOT PRESUME IN
CONSTRUING THE NATURALIZATION AND DENATURALIZATION ACTS THAT CONGRESS
MEANT TO CIRCUMSCRIBE LIBERTY OF POLITICAL THOUGHT BY GENERAL PHRASES
IN THOSE STATUTES.  AS CHIEF JUSTICE HUGHES SAID IN DISSENT IN THE
MACINTOSH CASE, SUCH GENERAL PHRASES "SHOULD BE CONSTRUED, NOT IN
OPPOSITION TO, BUT IN ACCORD WITH, THE THEORY AND PRACTICE OF OUR
GOVERNMENT IN RELATION TO FREEDOM OF CONSCIENCE."  283 U.S. AT 635. 
SEE ALSO HOLMES, J., DISSENTING IN UNITED STATES V. SCHWIMMER, 279 U.S.
644, 653-55. 

WHEN PETITIONER WAS NATURALIZED IN 1927, THE APPLICABLE STATUTES DID
NOT PROSCRIBE COMMUNIST BELIEFS OR AFFILIATION AS SUCH.  FN8  THEY DID
FORBID THE NATURALIZATION OF DISBELIEVERS IN ORGANIZED GOVERNMENT OR
MEMBERS OF ORGANIZATIONS TEACHING SUCH DISBELIEF.  POLYGAMISTS AND
ADVOCATES OF POLITICAL ASSASSINATION WERE ALSO BARRED.  FN9  APPLICANTS
FOR CITIZENSHIP WERE REQUIRED TO TAKE AN OATH TO SUPPORT THE
CONSTITUTION, TO BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME AND THE
LAWS OF THE UNITED STATES, AND TO RENOUNCE ALL ALLEGIANCE TO ANY
FOREIGN PRINCE, POTENTATE, STATE OR SOVEREIGNTY.  FN10  AND, IT WAS TO
"BE MADE TO APPEAR TO THE SATISFACTION OF THE COURT" OF NATURALIZATION
THAT IMMEDIATELY PRECEDING THE APPLICATION, THE APPLICANT "HAS RESIDED
CONTINUOUSLY WITHIN THE UNITED STATES FIVE YEARS AT LEAST,  ...  AND
THAT DURING THAT TIME HE HAS BEHAVED AS A MAN OF GOOD MORAL CHARACTER,
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES,
AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE SAME."  FN11
WHETHER PETITIONER SATISFIED THIS LAST REQUIREMENT IS THE CRUCIAL ISSUE
IN THIS CASE. 

TO APPLY THE STATUTORY REQUIREMENT OF ATTACHMENT CORRECTLY TO THE
PROOF ADDUCED, IT IS NECESSARY TO ASCERTAIN ITS MEANING.  ON ITS FACE
THE STATUTORY CRITERION IS NOT ATTACHMENT TO THE CONSTITUTION, BUT
BEHAVIOR FOR A PERIOD OF FIVE YEARS AS A MAN ATTACHED TO ITS PRINCIPLES
AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE UNITED
STATES.  SINCE THE NORMAL CONNOTATION OF BEHAVIOR IS CONDUCT, THERE IS
SOMETHING TO BE SAID FOR THE PROPOSITION THAT THE 1906 ACT CREATED A
PURELY OBJECTIVE QUALIFICATION, LIMITING INQUIRY TO AN APPLICANT'S
PREVIOUS CONDUCT.  FN12  IF THIS OBJECTIVE STANDARD IS THE REQUIREMENT,
PETITIONER SATISFIED THE STATUTE.  HIS CONDUCT HAS BEEN LAW ABIDING IN
ALL RESPECTS.  ACCORDING TO THE RECORD HE HAS NEVER BEEN ARRESTED, OR
CONNECTED WITH ANY DISORDER, AND NOT A SINGLE WRITTEN OR SPOKEN
STATEMENT OF HIS, DURING THE RELEVANT PERIOD FROM 1922 TO 1927 OR
THEREAFTER, ADVOCATING VIOLENT OVERTHROW OF THE GOVERNMENT, OR INDEED
EVEN A STATEMENT, APART FROM HIS TESTIMONY IN THIS PROCEEDING, THAT HE
DESIRED ANY CHANGE IN THE CONSTITUTION HAS BEEN PRODUCED.  THE SOLE
POSSIBLE CRITICISM IS PETITIONER'S MEMBERSHIP AND ACTIVITY IN THE
LEAGUE AND THE PARTY, BUT THOSE MEMBERSHIPS QUA MEMBERSHIPS WERE
IMMATERIAL UNDER THE 1906 ACT. 

IN UNITED STATES V. SCHWIMMER, 279 U.S. 644, AND UNITED STATES V.
MACINTOSH, 283 U.S. 605, HOWEVER, IT WAS HELD THAT THE STATUTE CREATED
A TEST OF BELIEF - THAT AN APPLICANT UNDER THE 1906 ACT MUST NOT ONLY
BEHAVE AS A MAN ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION, BUT
MUST BE SO ATTACHED IN FACT AT THE TIME OF NATURALIZATION.  WE DO NOT
STOP TO REEXAMINE THIS CONSTRUCTION FOR EVEN IF IT IS ACCEPTED THE
RESULT IS NOT CHANGED.  AS MENTIONED BEFORE, WE AGREE WITH THE
STATEMENT OF CHIEF JUSTICE HUGHES IN DISSENT IN MACINTOSH'S CASE THAT
THE BEHAVIOR REQUIREMENT IS "A GENERAL PHRASE WHICH SHOULD BE
CONSTRUED, NOT IN OPPOSITION TO, BUT IN ACCORD WITH, THE THEORY AND
PRACTICE OF OUR GOVERNMENT IN RELATION TO FREEDOM OF CONSCIENCE."  283
U.S. AT 635.  SEE ALSO THE DISSENTING OPINION OF JUSTICE HOLMES IN THE
SCHWIMMER CASE, SUPRA, 653-55.  AS POINTED OUT BEFORE, THIS IS A
DENATURALIZATION PROCEEDING, AND IT IS A JUDGMENT, NOT MERELY A CLAIM
OR A GRANT, WHICH IS BEING ATTACKED.  ASSUMING AS WE HAVE THAT THE
UNITED STATES IS ENTITLED TO ATTACK A FINDING OF ATTACHMENT UPON A
CHARGE OF ILLEGALITY, IT MUST SUSTAIN THE HEAVY BURDEN WHICH THEN RESTS
UPON IT TO PROVE LACK OF ATTACHMENT BY "CLEAR, UNEQUIVOCAL, AND
CONVINCING" EVIDENCE WHICH DOES NOT LEAVE THE ISSUE IN DOUBT.  WHEN THE
ATTACHMENT REQUIREMENT IS CONSTRUED AS INDICATED ABOVE, WE DO NOT THINK
THE GOVERNMENT HAS CARRIED ITS BURDEN OF PROOF. 

THE CLAIM THAT PETITIONER WAS NOT IN FACT ATTACHED TO THE
CONSTITUTION AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE
UNITED STATES AT THE TIME OF HIS NATURALIZATION AND FOR THE PREVIOUS
FIVE YEAR PERIOD IS TWOFOLD:  FIRST, THAT HE BELIEVED IN SUCH SWEEPING
CHANGES IN THE CONSTITUTION THAT HE SIMPLY COULD NOT BE ATTACHED TO IT;
SECOND, THAT HE BELIEVED IN AND ADVOCATED THE OVERTHROW BY FORCE AND
VIOLENCE OF THE GOVERNMENT, CONSTITUTION AND LAWS OF THE UNITED
STATES. 

IN SUPPORT OF ITS POSITION THAT PETITIONER WAS NOT IN FACT ATTACHED
TO THE PRINCIPLES OF THE CONSTITUTION BECAUSE OF HIS MEMBERSHIP IN THE
LEAGUE AND THE PARTY, THE GOVERNMENT HAS DIRECTED OUR ATTENTION FIRST
TO PETITIONER'S TESTIMONY THAT HE SUBSCRIBED TO THE PRINCIPLES OF THOSE
ORGANIZATIONS, AND THEN TO CERTAIN ALLEGED PARTY PRINCIPLES AND
STATEMENTS BY PARTY LEADERS WHICH ARE SAID TO BE FUNDAMENTALLY AT
VARIANCE WITH THE PRINCIPLES OF THE CONSTITUTION.  AT THIS POINT IT IS
APPROPRIATE TO MENTION WHAT WILL BE MORE FULLY DEVELOPED LATER - THAT
UNDER OUR TRADITIONS BELIEFS ARE PERSONAL AND NOT A MATTER OF MERE
ASSOCIATION, AND THAT MEN IN ADHERING TO A POLITICAL PARTY OR OTHER
ORGANIZATION NOTORIOUSLY DO NOT SUBSCRIBE UNQUALIFIEDLY TO ALL OF ITS
PLATFORMS OR ASSERTED PRINCIPLES.  SAID TO BE AMONG THOSE COMMUNIST
PRINCIPLES IN 1927 ARE:  THE ABOLITION OF PRIVATE PROPERTY WITHOUT
COMPENSATION; THE ERECTION OF A NEW PROLETARIAN STATE UPON THE RUINS OF
THE OLD BOURGEOIS STATE; THE CREATION OF A DICTATORSHIP OF THE
PROLETARIAT; DENIAL OF POLITICAL RIGHTS TO OTHERS THAN MEMBERS OF THE
PARTY OR OF THE PROLETARIAT; AND THE CREATION OF A WORLD UNION OF
SOVIET REPUBLICS.  STATEMENTS THAT AMERICAN DEMOCRACY "IS A FRAUD"
FN13  AND THAT THE PURPOSES OF THE PARTY ARE "UTTERLY ANTAGONISTIC TO
THE PURPOSES FOR WHICH THE AMERICAN DEMOCRACY, SO CALLED, WAS FORMED,"
FN14  ARE STRESSED. 

THOSE PRINCIPLES AND VIEWS ARE NOT GENERALLY ACCEPTED - IN FACT THEY
ARE DISTASTEFUL TO MOST OF US - AND THEY CALL FOR CONSIDERABLE CHANGE
IN OUR PRESENT FORM OF GOVERNMENT AND SOCIETY.  BUT WE DO NOT THINK THE
GOVERNMENT HAS CARRIED ITS BURDEN OF PROVING BY EVIDENCE WHICH DOES NOT
LEAVE THE ISSUE IN DOUBT THAT PETITIONER WAS NOT IN FACT ATTACHED TO
THE PRINCIPLES OF THE CONSTITUTION AND WELL DISPOSED TO THE GOOD ORDER
AND HAPPINESS OF THE UNITED STATES WHEN HE WAS NATURALIZED IN 1927. 

THE CONSTITUTIONAL FATHERS, FRESH FROM A REVOLUTION, DID NOT FORGE A
POLITICAL STRAIT-JACKET FOR THE GENERATIONS TO COME.  FN15  INSTEAD
THEY WROTE ARTICLE V AND THE FIRST AMENDMENT, GUARANTEEING FREEDOM OF
THOUGHT, SOON FOLLOWED.  ARTICLE V CONTAINS PROCEDURAL PROVISIONS FOR
CONSTITUTIONAL CHANGE BY AMENDMENT WITHOUT ANY PRESENT LIMITATION
WHATSOEVER EXCEPT THAT NO STATE MAY BE DEPRIVED OF EQUAL REPRESENTATION
IN THE SENATE WITHOUT ITS CONSENT.  CF. NATIONAL PROHIBITION CASES, 253
U.S. 350.  THIS PROVISION AND THE MANY IMPORTANT AND FAR-REACHING
CHANGES MADE IN THE CONSTITUTION SINCE 1787 REFUTE THE IDEA THAT
ATTACHMENT TO ANY PARTICULAR PROVISION OR PROVISIONS IS ESSENTIAL, OR
THAT ONE WHO ADVOCATES RADICAL CHANGES IS NECESSARILY NOT ATTACHED TO
THE CONSTITUTION.  UNITED STATES V. ROVIN, 12 F.2D 942, 944-45.  FN16
AS JUSTICE HOLMES SAID, "SURELY IT CANNOT SHOW LACK OF ATTACHMENT TO
THE PRINCIPLES OF THE CONSTITUTION THAT  ...  (ONE) THINKS IT CAN BE
IMPROVED."  UNITED STATES V. SCHWIMMER, SUPRA (DISSENT).  CRITICISM OF,
AND THE SINCERITY OF DESIRES TO IMPROVE, THE CONSTITUTION SHOULD NOT BE
JUDGED BY CONFORMITY TO PREVAILING THOUGHT BECAUSE, "IF THERE IS ANY
PRINCIPLE OF THE CONSTITUTION THAT MORE IMPERATIVELY CALLS FOR
ATTACHMENT THAN ANY OTHER IT IS THE PRINCIPLE OF FREE THOUGHT - NOT
FREE THOUGHT FOR THOSE WHO AGREE WITH US, BUT FREEDOM FOR THE THOUGHT
THAT WE HATE." ID.  SEE ALSO CHIEF JUSTICE HUGHES DISSENTING IN UNITED
STATES V. MACINTOSH, SUPRA, P. 635.  WHATEVER ATTITUDE WE MAY
INDIVIDUALLY HOLD TOWARD PERSONS AND ORGANIZATIONS THAT BELIEVE IN OR
ADVOCATE EXTENSIVE CHANGES IN OUR EXISTING ORDER, IT SHOULD BE OUR
DESIRE AND CONCERN AT ALL TIMES TO UPHOLD THE RIGHT OF FREE DISCUSSION
AND FREE THINKING TO WHICH WE AS A PEOPLE CLAIM PRIMARY ATTACHMENT.  TO
NEGLECT THIS DUTY IN A PROCEEDING IN WHICH WE ARE CALLED UPON TO JUDGE
WHETHER A PARTICULAR INDIVIDUAL HAS FAILED TO MANIFEST ATTACHMENT TO
THE CONSTITUTION WOULD BE IRONICAL INDEED. 

OUR CONCERN IS WITH WHAT CONGRESS MEANT TO BE THE EXTENT OF THE AREA
OF ALLOWABLE THOUGHT UNDER THE STATUTE.  BY THE VERY GENERALITY OF THE
TERMS EMPLOYED IT IS EVIDENT THAT CONGRESS INTENDED AN ELASTIC TEST,
ONE WHICH SHOULD NOT BE CIRCUMSCRIBED BY ATTEMPTS AT PRECISE
DEFINITION.  IN VIEW OF OUR TRADITION OF FREEDOM OF THOUGHT, IT IS NOT
TO BE PRESUMED THAT CONGRESS IN THE ACT OF 1906, OR ITS PREDECESSORS OF
1795 AND 1802,  FN17  INTENDED TO OFFER NATURALIZATION ONLY TO THOSE
WHOSE POLITICAL VIEWS COINCIDE WITH THOSE CONSIDERED BEST BY THE
FOUNDERS IN 1787 OR BY THE MAJORITY IN THIS COUNTRY TODAY.  ESPECIALLY
IS THIS SO SINCE THE LANGUAGE USED, POSING THE GENERAL TEST OF
"ATTACHMENT" IS NOT NECESSARILY SUSCEPTIBLE OF SO REPRESSIVE A
CONSTRUCTION.  FN18  THE GOVERNMENT AGREES THAT AN ALIEN "MAY THINK
THAT THE LAWS AND THE CONSTITUTION SHOULD BE AMENDED IN SOME OR MANY
RESPECTS" AND STILL BE ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION
WITHIN THE MEANING OF THE STATUTE.  WITHOUT DISCUSSING THE NATURE AND
EXTENT OF THOSE PERMISSIBLE CHANGES, THE GOVERNMENT INSISTS THAT AN
ALIEN MUST BELIEVE IN AND SINCERELY ADHERE TO THE "GENERAL POLITICAL
PHILOSOPHY" OF THE CONSTITUTION.  FN19  PETITIONER IS SAID TO BE
OPPOSED TO THAT "POLITICAL PHILOSOPHY," THE MINIMUM REQUIREMENTS OF
WHICH ARE SET FORTH IN THE MARGIN.  FN20  IT WAS ARGUED AT THE BAR THAT
SINCE ARTICLE V CONTAINS NO LIMITATIONS, A PERSON CAN BE ATTACHED TO
THE CONSTITUTION NO MATTER HOW EXTENSIVE THE CHANGES ARE THAT HE
DESIRES, SO LONG AS HE SEEKS TO ACHIEVE HIS ENDS WITHIN THE FRAMEWORK
OF ARTICLE V. BUT WE NEED NOT CONSIDER THE VALIDITY OF THIS EXTREME
POSITION FOR IF THE GOVERNMENT'S CONSTRUCTION IS ACCEPTED, IT HAS NOT
CARRIED ITS BURDEN OF PROOF EVEN UNDER ITS OWN TEST. 

THE DISTRICT COURT DID NOT STATE IN ITS FINDINGS WHAT PRINCIPLES HELD
BY PETITIONER OR BY THE COMMUNIST PARTY WERE OPPOSED TO THE
CONSTITUTION AND INDICATED LACK OF ATTACHMENT.  SEE NOTE 6, ANTE.  IN
ITS OPINION THAT COURT MERELY RELIED UPON IN RE SARALIEFF, 59 F.2D 436,
AND UNITED STATES V. TAPOLCSANYI, 40 F.2D 255, WITHOUT FRESH
EXAMINATION OF THE QUESTION IN THE LIGHT OF THE PRESENT RECORD.  33
F.SUPP.  510.  THE CIRCUIT COURT OF APPEALS DEDUCED AS PARTY PRINCIPLES
ROUGHLY THE SAME ONES WHICH THE GOVERNMENT HERE PRESSES AND STATED
"THESE VIEWS ARE NOT THOSE OF OUR CONSTITUTION."  119 F.2D AT 503-04. 

WITH REGARD TO THE CONSTITUTIONAL CHANGES HE DESIRED PETITIONER
TESTIFIED THAT HE BELIEVED IN THE NATIONALIZATION OF THE MEANS OF
PRODUCTION AND EXCHANGE WITH COMPENSATION, AND THE PRESERVATION AND
UTILIZATION OF OUR "DEMOCRATIC STRUCTURE  ...  AS FAR AS POSSIBLE FOR
THE ADVANTAGE OF THE WORKING CLASSES."  HE STATED THAT THE
"DICTATORSHIP OF THE PROLETARIAT" TO HIM MEANT "NOT A GOVERNMENT, BUT A
STATE OF THINGS" IN WHICH "THE MAJORITY OF THE PEOPLE SHALL REALLY
DIRECT THEIR OWN DESTINIES AND USE THE INSTRUMENT OF THE STATE FOR
THESE TRULY DEMOCRATIC ENDS."  NONE OF THIS IS NECESSARILY INCOMPATIBLE
WITH THE "GENERAL POLITICAL PHILOSOPHY" OF THE CONSTITUTION AS OUTLINED
ABOVE BY THE GOVERNMENT.  IT IS TRUE THAT THE FIFTH AMENDMENT PROTECTS
PRIVATE PROPERTY, EVEN AGAINST TAKING FOR PUBLIC USE WITHOUT
COMPENSATION.  BUT THROUGHOUT OUR HISTORY MANY SINCERE PEOPLE WHOSE
ATTACHMENT TO THE GENERAL CONSTITUTIONAL SCHEME CANNOT BE DOUBTED HAVE,
FOR VARIOUS AND EVEN DIVERGENT REASONS, URGED DIFFERING DEGREES OF
GOVERNMENTAL OWNERSHIP AND CONTROL OF NATURAL RESOURCES, BASIC MEANS OF
PRODUCTION, AND BANKS AND THE MEDIA OF EXCHANGE, EITHER WITH OR WITHOUT
COMPENSATION.  AND SOMETHING ONCE REGARDED AS A SPECIES OF PRIVATE
PROPERTY WAS ABOLISHED WITHOUT COMPENSATING THE OWNERS WHEN THE
INSTITUTION OF SLAVERY WAS FORBIDDEN.  FN21  CAN IT BE SAID THAT THE
AUTHOR OF THE EMANCIPATION PROCLAMATION AND THE SUPPORTERS OF THE
THIRTEENTH AMENDMENT WERE NOT ATTACHED TO THE CONSTITUTION?  WE
CONCLUDE THAT LACK OF ATTACHMENT TO THE CONSTITUTION IS NOT SHOWN ON
THE BASIS OF THE CHANGES WHICH PETITIONER TESTIFIED HE DESIRED IN THE
CONSTITUTION. 

TURNING NOW TO A SERIATIM CONSIDERATION OF WHAT THE GOVERNMENT
ASSERTS ARE PRINCIPLES OF THE COMMUNIST PARTY, WHICH PETITIONER
BELIEVED AND WHICH ARE OPPOSED TO OUR CONSTITUTION, OUR CONCLUSION
REMAINS THE SAME - THE GOVERNMENT HAS NOT PROVED BY "CLEAR, UNEQUIVOCAL
AND CONVINCING" EVIDENCE THAT THE NATURALIZATION COURT COULD NOT HAVE
BEEN SATISFIED THAT PETITIONER WAS ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION WHEN HE WAS NATURALIZED. 

WE HAVE ALREADY DISPOSED OF THE PRINCIPLE OF NATIONALIZATION OF THE
AGENTS OF PRODUCTION AND EXCHANGE WITH OR WITHOUT COMPENSATION.  THE
ERECTION OF A NEW PROLETARIAT STATE UPON THE RUINS OF THE OLD BOURGEOIS
STATE, AND THE CREATION OF A DICTATORSHIP OF THE PROLETARIAT MAY BE
CONSIDERED TOGETHER.  THE CONCEPT OF THE DICTATORSHIP OF THE
PROLETARIAT IS ONE LOOSELY USED, UPON WHICH MORE WORDS THAN LIGHT HAVE
BEEN SHED.  MUCH ARGUMENT HAS BEEN DIRECTED AS TO HOW IT IS TO BE
ACHIEVED, BUT WE HAVE BEEN OFFERED NO PRECISE DEFINITION HERE.  IN THE
GENERAL SENSE THE TERM MAY BE TAKEN TO DESCRIBE A STATE IN WHICH THE
WORKERS OR THE MASSES, RATHER THAN THE BOURGEOISIE OR CAPITALISTS ARE
THE DOMINANT CLASS.  THEORETICALLY IT IS CONTROL BY A CLASS, NOT A
DICTATORSHIP IN THE SENSE OF ABSOLUTE AND TOTAL RULE BY ONE
INDIVIDUAL.  SO FAR AS THE RECORD BEFORE US INDICATES, THE CONCEPT IS A
FLUID ONE, CAPABLE OF ADJUSTMENT TO DIFFERENT CONDITIONS IN DIFFERENT
COUNTRIES.  THERE ARE ONLY MEAGER INDICATIONS OF THE FORM THE
"DICTATORSHIP" WOULD TAKE IN THIS COUNTRY.  IT DOES NOT APPEAR THAT IT
WOULD NECESSARILY MEAN THE END OF REPRESENTATIVE GOVERNMENT OR THE
FEDERAL SYSTEM.  THE PROGRAM AND CONSTITUTION OF THE WORKERS PARTY
(1921-24) CRITICIZED THE CONSTITUTIONAL SYSTEM OF CHECKS AND BALANCES,
THE SENATE'S POWER TO PASS ON LEGISLATION, AND THE INVOLVED PROCEDURE
FOR AMENDING THE CONSTITUTION, CHARACTERIZING THEM AS DEVICES DESIGNED
TO FRUSTRATE THE WILL OF THE MAJORITY.  FN22  THE 1928 PLATFORM OF THE
COMMUNIST PARTY OF THE UNITED STATES, ADOPTED AFTER PETITIONER'S
NATURALIZATION AND HENCE NOT STRICTLY RELEVANT, ADVOCATED THE ABOLITION
OF THE SENATE, OF THE SUPREME COURT, AND OF THE VETO POWER OF THE
PRESIDENT, AND REPLACEMENT OF CONGRESSIONAL DISTRICTS WITH "COUNCILS OF
WORKERS" IN WHICH LEGISLATIVE AND EXECUTIVE POWER WOULD BE UNITED. 
THESE WOULD INDEED BE SIGNIFICANT CHANGES IN OUR PRESENT GOVERNMENTAL
STRUCTURE - CHANGES WHICH IT IS SAFE TO SAY ARE NOT DESIRED BY THE
MAJORITY OF THE PEOPLE IN THIS COUNTRY - BUT WHATEVER OUR PERSONAL
VIEWS, AS JUDGES WE CANNOT SAY THAT A PERSON WHO ADVOCATES THEIR
ADOPTION THROUGH PEACEFUL AND CONSTITUTIONAL MEANS IS NOT IN FACT
ATTACHED TO THE CONSTITUTION - THOSE INSTITUTIONS ARE NOT ENUMERATED AS
NECESSARY IN THE GOVERNMENT'S TEST OF "GENERAL POLITICAL PHILOSOPHY,"
AND IT IS CONCEIVABLE THAT "ORDERED LIBERTY" COULD BE MAINTAINED
WITHOUT THEM.  THE SENATE HAS NOT GONE FREE OF CRITICISM AND ONE OBJECT
OF THE SEVENTEENTH AMENDMENT WAS TO MAKE IT MORE RESPONSIVE TO THE
PUBLIC WILL.  FN23  THE UNICAMERAL LEGISLATURE IS NOT UNKNOWN IN THE
COUNTRY.  FN24  IT IS TRUE THAT THIS COURT HAS PLAYED A LARGE PART IN
THE UNFOLDING OF THE CONSTITUTIONAL PLAN (SOMETIMES TOO MUCH SO IN THE
OPINION OF SOME OBSERVERS), BUT WE WOULD BE ARROGANT INDEED IF WE
PRESUMED THAT A GOVERNMENT OF LAWS, WITH PROTECTION FOR MINORITY
GROUPS, WOULD BE IMPOSSIBLE WITHOUT IT.  LIKE OTHER AGENCIES OF
GOVERNMENT, THIS COURT AT VARIOUS TIMES IN ITS EXISTENCE HAS NOT
ESCAPED THE SHAFTS OF CRITICS WHOSE SINCERITY AND ATTACHMENT TO THE
CONSTITUTION IS BEYOND QUESTION - CRITICS WHO HAVE ACCUSED IT OF
ASSUMING FUNCTIONS OF JUDICIAL REVIEW NOT INTENDED TO BE CONFERRED UPON
IT, OR OF ABUSING THOSE FUNCTIONS TO THWART THE POPULAR WILL, AND WHO
HAVE ADVOCATED VARIOUS REMEDIES TAKING A WIDE RANGE  FN24  A. AND IT IS
HARDLY CONCEIVABLE THAT THE CONSEQUENCE OF FREEING THE LEGISLATIVE
BRANCH FROM THE RESTRAINT OF THE EXECUTIVE VETO WOULD BE THE END OF
CONSTITUTIONAL GOVERNMENT  FN24 B. BY THIS DISCUSSION WE CERTAINLY DO
NOT MEAN TO INDICATE THAT WE WOULD FAVOR SUCH CHANGES.  OUR PREFERENCE
AND AVERSIONS HAVE NO BEARING HERE.  OUR CONCERN IS WITH THE EXTENT OF
THE ALLOWABLE AREA OF THOUGHT UNDER THE STATUTE.  WE DECIDE ONLY THAT
IT IS POSSIBLE TO ADVOCATE SUCH CHANGES AND STILL BE ATTACHED TO THE
CONSTITUTION WITHIN THE MEANING OF THE GOVERNMENT'S MINIMUM TEST. 

IF ANY PROVISIONS OF THE CONSTITUTION CAN BE SINGLED OUT AS REQUIRING
UNQUALIFIED ATTACHMENT, THEY ARE THE GUARANTIES OF THE BILL OF RIGHTS
AND ESPECIALLY THAT OF FREEDOM OF THOUGHT CONTAINED IN THE FIRST
AMENDMENT.  CF. JUSTICE HOLMES' DISSENT IN UNITED STATES V. SCHWIMMER,
SUPRA.  WE DO NOT REACH, HOWEVER, THE QUESTION WHETHER PETITIONER WAS
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION IF HE BELIEVED IN
DENYING POLITICAL AND CIVIL RIGHTS TO PERSONS NOT MEMBERS OF THE PARTY
OR OF THE SOCALLED PROLETARIAT, FOR ON THE BASIS OF THE RECORD BEFORE
US IT HAS NOT BEEN CLEARLY SHOWN THAT SUCH DENIAL WAS A PRINCIPLE OF
THE ORGANIZATIONS TO WHICH PETITIONER BELONGED.  SINCE IT IS DOUBTFUL
THAT THIS WAS A PRINCIPLE OF THOSE ORGANIZATIONS, IT IS CERTAINLY MUCH
MORE SPECULATIVE WHETHER THIS WAS PART OF PETITIONER'S PHILOSOPHY. 
SOME OF THE DOCUMENTS IN THE RECORD INDICATE THAT "CLASS ENEMIES" OF
THE PROLETARIAT SHOULD BE DEPRIVED OF THEIR POLITICAL RIGHTS.  FN25
LENIN, HOWEVER, WROTE THAT THIS WAS NOT NECESSARY TO REALIZE THE
DICTATORSHIP OF THE PROLETARIAT.  FN26  THE PARTY'S 1928 PLATFORM
DEMANDED THE UNRESTRICTED RIGHT TO ORGANIZE, TO STRIKE AND TO PICKET
AND THE UNRESTRICTED RIGHT OF FREE SPEECH, FREE PRESS AND FREE
ASSEMBLAGE FOR THE WORKING CLASS.  THE 1928 PROGRAM OF THE COMMUNIST
INTERNATIONAL STATES THAT THE PROLETARIAN STATE WILL GRANT RELIGIOUS
FREEDOM, WHILE AT THE SAME TIME IT WILL CARRY ON ANTIRELIGIOUS
PROPAGANDA. 

WE SHOULD NOT HOLD THAT PETITIONER IS NOT ATTACHED TO THE
CONSTITUTION BY REASON OF HIS POSSIBLE BELIEF IN THE CREATION OF SOME
FORM OF WORLD UNION OF SOVIET REPUBLICS UNLESS WE ARE WILLING SO TO
HOLD WITH REGARD TO THOSE WHO BELIEVE IN PAN-AMERICANISM, THE LEAGUE OF
NATIONS, UNION NOW, OR SOME OTHER FORM OF INTERNATIONAL COLLABORATION
OR COLLECTIVE SECURITY WHICH MAY GROW OUT OF THE PRESENT HOLOCAUST.  A
DISTINCTION HERE WOULD BE AN INVIDIOUS ONE BASED ON THE FACT THAT WE
MIGHT AGREE WITH OR TOLERATE THE LATTER BUT DISLIKE OR DISAGREE WITH
THE FORMER. 

IF ROOM IS ALLOWED, AS WE THINK CONGRESS INTENDED, FOR THE FREE PLAY
OF IDEAS, NONE OF THE FOREGOING PRINCIPLES, WHICH MIGHT BE HELD TO
STAND FORTH WITH SUFFICIENT CLARITY TO BE IMPUTED TO PETITIONER ON THE
BASIS OF HIS MEMBERSHIP AND ACTIVITY IN THE LEAGUE AND THE PARTY AND
HIS TESTIMONY THAT HE SUBSCRIBED TO THE PRINCIPLES OF THOSE
ORGANIZATIONS, IS ENOUGH, WHATEVER OUR OPINION AS TO THEIR MERITS, TO
PROVE THAT HE WAS NECESSARILY NOT ATTACHED TO THE CONSTITUTION WHEN HE
WAS NATURALIZED.  THE CUMULATIVE EFFECT IS NO GREATER. 

APART FROM THE QUESTION WHETHER THE ALLEGED PRINCIPLES OF THE PARTY
WHICH PETITIONER ASSERTEDLY BELIEVED WERE SO FUNDAMENTALLY OPPOSED TO
THE CONSTITUTION THAT HE WAS NOT ATTACHED TO ITS PRINCIPLES IN 1927,
THE GOVERNMENT CONTENDS THAT PETITIONER WAS NOT ATTACHED BECAUSE HE
BELIEVED IN THE USE OF FORCE AND VIOLENCE INSTEAD OF PEACEFUL
DEMOCRATIC METHODS TO ACHIEVE HIS DESIRES.  IN SUPPORT OF THIS PHASE OF
ITS ARGUMENT THE GOVERNMENT ASSERTS THAT THE ORGANIZATIONS WITH WHICH
PETITIONER WAS ACTIVELY AFFILIATED ADVISED, ADVOCATED AND TAUGHT THE
OVERTHROW OF THE GOVERNMENT, CONSTITUTION AND LAWS OF THE UNITED STATES
BY FORCE AND VIOLENCE, AND THAT PETITIONER THEREFORE BELIEVED IN THAT
METHOD OF GOVERNMENTAL CHANGE. 

APART FROM HIS MEMBERSHIP IN THE LEAGUE AND THE PARTY, THE RECORD IS
BARREN OF ANY CONDUCT OR STATEMENT ON PETITIONER'S PART WHICH INDICATES
IN THE SLIGHTEST THAT HE BELIEVED IN AND ADVOCATED THE EMPLOYMENT OF
FORCE AND VIOLENCE, INSTEAD OF PEACEFUL PERSUASION, AS A MEANS OF
ATTAINING POLITICAL ENDS.  TO FIND THAT HE SO BELIEVED AND ADVOCATED IT
IS NECESSARY, THEREFORE, TO FIND THAT SUCH WAS A PRINCIPLE OF THE
ORGANIZATIONS TO WHICH HE BELONGED AND THEN IMPUTE THAT PRINCIPLE TO
HIM ON THE BASIS OF HIS ACTIVITY IN THOSE ORGANIZATIONS AND HIS
STATEMENT THAT HE SUBSCRIBED TO THEIR PRINCIPLES.  THE GOVERNMENT
FRANKLY CONCEDES THAT "IT IS NORMALLY TRUE  ...  THAT IT IS UNSOUND TO
IMPUTE TO AN ORGANIZATION THE VIEWS EXPRESSED IN THE WRITINGS OF ALL
ITS MEMBERS, OR TO IMPUTE SUCH WRITINGS TO EACH MEMBER  ...  "  FN27
BUT THE GOVERNMENT CONTENDS, HOWEVER, THAT IT IS PROPER TO IMPUTE TO
PETITIONER CERTAIN EXCERPTS FROM THE DOCUMENTS IN EVIDENCE UPON WHICH
IT PARTICULARLY RELIES TO SHOW THAT ADVOCACY OF FORCE AND VIOLENCE WAS
A PRINCIPLE OF THE COMMUNIST PARTY OF THE UNITED STATES IN 1927,
BECAUSE THOSE DOCUMENTS WERE OFFICIAL PUBLICATIONS CAREFULLY SUPERVISED
BY THE PARTY, BECAUSE OF THE PARTY'S NOTORIOUS DISCIPLINE OVER ITS
MEMBERS, AND BECAUSE PETITIONER WAS NOT A MERE "RANK AND FILE OR
ACCIDENTAL MEMBER OF THE PARTY," BUT "AN INTELLIGENT AND EDUCATED
INDIVIDUAL" WHO "BECAME A LEADER OF THESE ORGANIZATIONS AS AN
INTELLECTUAL REVOLUTIONARY."  FN28  SINCE THE IMMEDIATE PROBLEM IS THE
DETERMINATION WITH CERTAINTY OF PETITIONER'S BELIEFS FROM 1922 TO 1927,
EVENTS AND WRITINGS SINCE THAT TIME HAVE LITTLE RELEVANCE, AND BOTH
PARTIES HAVE ATTEMPTED TO CONFINE THEMSELVES WITHIN THE LIMITS OF THAT
CRITICAL PERIOD.    FOR SOME TIME THE QUESTION WHETHER ADVOCACY OF
GOVERNMENTAL OVERTHROW BY FORCE AND VIOLENCE IS A PRINCIPLE OF THE
COMMUNIST PARTY OF THE UNITED STATES HAS PERPLEXED COURTS,
ADMINISTRATORS, LEGISLATORS, AND STUDENTS.  ON VARYING RECORDS IN
DEPORTATION PROCEEDINGS SOME COURTS HAVE HELD THAT ADMINISTRATIVE
FINDINGS THAT THE PARTY DID SO ADVOCATE WERE NOT SO WANTING IN
EVIDENTIAL SUPPORT AS TO AMOUNT TO A DENIAL OF DUE PROCESS,  FN29
OTHERS HAVE HELD TO THE CONTRARY ON DIFFERENT RECORDS,  FN30  AND SOME
SEEM TO HAVE TAKEN THE POSITION THAT THEY WILL JUDICIALLY NOTICE THAT
FORCE AND VIOLENCE IS A PARTY PRINCIPLE.  FN31  THIS COURT HAS NEVER
PASSED UPON THE QUESTION WHETHER THE PARTY DOES SO ADVOCATE, AND IT IS
UNNECESSARY FOR US TO DO SO NOW. 

WITH COMMENDABLE CANDOR THE GOVERNMENT ADMITS THE PRESENCE OF SHARPLY
CONFLICTING VIEWS ON THE ISSUE OF FORCE AND VIOLENCE AS A PARTY
PRINCIPLE,  FN32  AND IT ALSO CONCEDES THAT "SOME COMMUNIST LITERATURE
IN RESPECT OF FORCE AND VIOLENCE IS SUSCEPTIBLE OF AN INTERPRETATION
MORE RHETORICAL THAN LITERAL."  FN33  IT INSISTS, HOWEVER, THAT
EXCERPTS FROM THE DOCUMENTS ON WHICH IT PARTICULARLY RELIES, ARE ENOUGH
TO SHOW THAT THE TRIAL COURT'S FINDING THAT THE COMMUNIST PARTY
ADVOCATED VIOLENT OVERTHROW OF THE GOVERNMENT WAS NOT "CLEARLY
ERRONEOUS," AND HENCE CAN NOT BE SET ASIDE.  FN34  AS PREVIOUSLY
POINTED OUT, THE TRIAL COURT'S FINDINGS DO NOT INDICATE THE BASES FOR
ITS CONCLUSIONS, BUT THE DOCUMENTS PUBLISHED PRIOR TO 1927 STRESSED BY
THE GOVERNMENT, WITH THE PERTINENT EXCERPTS NOTED IN THE MARGIN, ARE:
THE COMMUNIST MANIFESTO OF MARX AND ENGELS; FN35  THE STATE AND
REVOLUTION BY LENIN; FN36  THE STATUTES, THESES AND CONDITIONS OF
ADMISSION TO THE COMMUNIST INTERNATIONAL; FN37  AND THE THEORY AND
PRACTICE OF LENINISM, WRITTEN BY STALIN.  FN38  THE GOVERNMENT ALSO
SETS FORTH EXCERPTS FROM OTHER DOCUMENTS WHICH ARE ENTITLED TO LITTLE
WEIGHT BECAUSE THEY WERE PUBLISHED AFTER THE CRITICAL PERIOD.  FN39 

THE BOMBASTIC EXCERPTS SET FORTH IN NOTES 35 TO 38 INCLUSIVE, UPON
WHICH THE GOVERNMENT PARTICULARLY RELIES, LEND CONSIDERABLE SUPPORT TO
THE CHARGE.  WE DO NOT SAY THAT A REASONABLE MAN COULD NOT POSSIBLY
HAVE FOUND, AS THE DISTRICT COURT DID, THAT THE COMMUNIST PARTY IN 1927
ACTIVELY URGED THE OVERTHROW OF THE GOVERNMENT BY FORCE AND VIOLENCE. 
FN40 BUT THAT IS NOT THE ISSUE HERE.  WE ARE NOT CONCERNED WITH THE
QUESTION WHETHER A REASONABLE MAN MIGHT SO CONCLUDE, NOR WITH THE
NARROW ISSUE WHETHER ADMINISTRATIVE FINDINGS TO THAT EFFECT ARE SO
LACKING IN EVIDENTIARY SUPPORT AS TO AMOUNT TO A DENIAL OF DUE
PROCESS.  AS POINTED OUT BEFORE, THIS IS A DENATURALIZATION PROCEEDING
IN WHICH, IF THE GOVERNMENT IS ENTITLED TO ATTACK A FINDING OF
ATTACHMENT AS WE HAVE ASSUMED, THE BURDEN RESTS UPON IT TO PROVE THE
ALLEGED LACK OF ATTACHMENT BY "CLEAR, UNEQUIVOCAL AND CONVINCING"
EVIDENCE.  THAT BURDEN HAS NOT BEEN CARRIED.  THE GOVERNMENT HAS NOT
PROVED THAT PETITIONER'S BELIEFS ON THE SUBJECT OF FORCE AND VIOLENCE
WERE SUCH THAT HE WAS NOT ATTACHED TO THE CONSTITUTION IN 1927. 

IN THE FIRST PLACE THIS PHASE OF THE GOVERNMENT'S CASE IS SUBJECT TO
THE ADMITTED INFIRMITIES OF PROOF BY IMPUTATION N41.  THE DIFFICULTIES
OF THIS METHOD OF PROOF ARE HERE INCREASED BY THE FACT THAT THERE IS,
UNFORTUNATELY, NO ABSOLUTELY ACCURATE TEST OF WHAT A POLITICAL PARTY'S
PRINCIPLES ARE.  FN42  POLITICAL WRITINGS ARE OFTEN OVER-EXAGGERATED
POLEMICS BEARING THE IMPRINT OF THE PERIOD AND THE PLACE IN WHICH
WRITTEN.  FN43  PHILOSOPHIES CANNOT GENERALLY BE STUDIED IN VACUO. 
MEANING MAY BE WHOLLY DISTORTED BY LIFTING SENTENCES OUT OF CONTEXT,
INSTEAD OF CONSTRUING THEM AS PART OF AN ORGANIC WHOLE.  EVERY
UTTERANCE OF PARTY LEADERS IS NOT TAKEN AS PARTY GOSPEL.  AND WE WOULD
DENY OUR EXPERIENCE AS MEN IF WE DID NOT RECOGNIZE THAT OFFICIAL PARTY
PROGRAMS ARE UNFORTUNATELY OFTEN OPPORTUNISTIC DEVICES AS MUCH HONORED
IN THE BREACH AS IN THE OBSERVANCE.  FN44  ON THE BASIS OF THE PRESENT
RECORD WE CANNOT SAY THAT THE COMMUNIST PARTY IS SO DIFFERENT IN THIS
RESPECT THAT ITS PRINCIPLES STAND FORTH WITH PERFECT CLARITY, AND
ESPECIALLY IS THIS SO WITH RELATION TO THE CRUCIAL ISSUE OF ADVOCACY OF
FORCE AND VIOLENCE, UPON WHICH THE GOVERNMENT ADMITS THE EVIDENCE IS
SHARPLY CONFLICTING.  THE PRESENCE OF THIS CONFLICT IS THE SECOND
WEAKNESS IN THE GOVERNMENT'S CHAIN OF PROOF.  IT IS NOT ELIMINATED BY
ASSIDUOUSLY ADDING FURTHER EXCERPTS FROM THE DOCUMENTS IN EVIDENCE TO
THOSE CULLED OUT BY THE GOVERNMENT. 

THE REALITY OF THE CONFLICT IN THE RECORD BEFORE US CAN BE POINTED
OUT QUICKLY.  OF THE RELEVANT PRIOR TO 1927 DOCUMENTS RELIED UPON BY
THE GOVERNMENT THREE ARE WRITINGS OF OUTSTANDING MARXIST PHILOSOPHERS,
AND LEADERS, THE FOURTH IS A WORLD PROGRAM.  FN45  THE MANIFESTO OF
1848 WAS PROCLAIMED IN AN AUTOCRATIC EUROPE ENGAGED IN SUPPRESSING THE
ABORTIVE LIBERAL REVOLUTIONS OF THAT YEAR.  WITH THIS BACKGROUND, ITS
TONE IS NOT SURPRISING.  FN46  ITS AUTHORS LATER STATED, HOWEVER, THAT
THERE WERE CERTAIN COUNTRIES, "SUCH AS THE UNITED STATES AND ENGLAND IN
WHICH THE WORKERS MAY HOPE TO SECURE THEIR ENDS BY PEACEFUL MEANS." 
FN47  LENIN DOUBTED THIS IN HIS MILITANT WORK, THE STATE AND
REVOLUTION, BUT THIS WAS WRITTEN ON THE EVE OF THE BOLSHEVIST
REVOLUTION IN RUSSIA AND MAY BE INTERPRETED AS INTENDED IN PART TO
JUSTIFY THE BOLSHEVIST COURSE AND REFUTE THE ANARCHISTS AND SOCIAL
DEMOCRATS.  FN48  STALIN DECLARED THAT MARX'S EXEMPTION FOR THE UNITED
STATES AND ENGLAND WAS NO LONGER VALID.  FN49  HE WROTE, HOWEVER, THAT
"THE PROPOSITION THAT THE PRESTIGE OF THE PARTY CAN BE BUILT UPON
VIOLENCE  ...  IS ABSURD AND ABSOLUTELY INCOMPATIBLE WITH LENINISM." 
FN50  AND LENIN WROTE "IN ORDER TO OBTAIN THE POWER OF THE STATE THE
CLASS CONSCIOUS WORKERS MUST WIN THE MAJORITY TO THEIR SIDE.  AS LONG
AS NO VIOLENCE IS USED AGAINST THE MASSES, THERE IS NO OTHER ROAD TO
POWER.  WE ARE NOT BLANQUISTS, WE ARE NOT IN FAVOR OF THE SEIZURE OF
POWER BY A MINORITY."  FN51  THE 1938 CONSTITUTION OF THE COMMUNIST
PARTY OF THE UNITED STATES, WHICH PETITIONER CLAIMED TO BE THE FIRST
AND ONLY WRITTEN CONSTITUTION EVER OFFICIALLY ADOPTED BY THE PARTY AND
WHICH HE ASSERTED ENUNCIATED THE PRINCIPLES OF THE PARTY AS HE
UNDERSTOOD THEM FROM THE BEGINNING OF HIS MEMBERSHIP, OSTENSIBLY
ESCHEWS RESORT TO FORCE AND VIOLENCE AS AN ELEMENT OF PARTY TACTICS. 
FN52 

A TENABLE CONCLUSION FROM THE FOREGOING IS THAT THE PARTY IN 1927
DESIRED TO ACHIEVE ITS PURPOSE BY PEACEFUL AND DEMOCRATIC MEANS, AND AS
A THEORETICAL MATTER JUSTIFIED THE USE OF FORCE AND VIOLENCE ONLY AS A
METHOD OF PREVENTING AN ATTEMPTED FORCIBLE COUNTER-OVERTHROW ONCE THE
PARTY HAD OBTAINED CONTROL IN A PEACEFUL MANNER, OR AS A METHOD OF LAST
RESORT TO ENFORCE THE MAJORITY WILL IF AT SOME INDEFINITE FUTURE TIME
BECAUSE OF PECULIAR CIRCUMSTANCES CONSTITUTIONAL OR PEACEFUL CHANNELS
WERE NO LONGER OPEN. 

THERE IS A MATERIAL DIFFERENCE BETWEEN AGITATION AND EXHORTATION
CALLING FOR PRESENT VIOLENT ACTION WHICH CREATES A CLEAR AND PRESENT
DANGER OF PUBLIC DISORDER OR OTHER SUBSTANTIVE EVIL, AND MERE DOCTRINAL
JUSTIFICATION OR PREDICTION OF THE USE OF FORCE UNDER HYPOTHETICAL
CONDITIONS AT SOME INDEFINITE FUTURE TIME - PREDICTION THAT IS NOT
CALCULATED OR INTENDED TO BE PRESENTLY ACTED UPON, THUS LEAVING
OPPORTUNITY FOR GENERAL DISCUSSION AND THE CALM PROCESSES OF THOUGHT
AND REASON.  CF. BRIDGES V. CALIFORNIA, 314 U.S. 252, AND JUSTICE
BRANDEIS' CONCURRING OPINION IN WHITNEY V. CALIFORNIA, 274 U.S. 357,
372-80.  SEE ALSO TAYLOR V. MISSISSIPPI, 319 U.S. 583.  BECAUSE OF THIS
DIFFERENCE WE MAY ASSUME THAT CONGRESS INTENDED, BY THE GENERAL TEST OF
"ATTACHMENT" IN THE 1906 ACT, TO DENY NATURALIZATION TO PERSONS FALLING
INTO THE FIRST CATEGORY BUT NOT TO THOSE IN THE SECOND.  SUCH A
CONSTRUCTION OF THE STATUTE IS TO BE FAVORED BECAUSE IT PRESERVES FOR
NOVITIATES AS WELL AS CITIZENS THE FULL BENEFIT OF THAT FREEDOM OF
THOUGHT WHICH IS A FUNDAMENTAL FEATURE OF OUR POLITICAL INSTITUTIONS. 
UNDER THE CONFLICTING EVIDENCE IN THIS CASE WE CANNOT SAY THAT THE
GOVERNMENT HAS PROVED BY SUCH A PREPONDERANCE OF THE EVIDENCE THAT THE
ISSUE IS NOT IN DOUBT, THAT THE ATTITUDE OF THE COMMUNIST PARTY OF THE
UNITED STATES IN 1927 TOWARDS FORCE AND VIOLENCE WAS NOT SUSCEPTIBLE OF
CLASSIFICATION IN THE SECOND CATEGORY.  PETITIONER TESTIFIED THAT HE
SUBSCRIBED TO THIS INTERPRETATION OF PARTY PRINCIPLES WHEN HE WAS
NATURALIZED, AND NOTHING IN HIS CONDUCT IS INCONSISTENT WITH THAT
TESTIMONY.  WE CONCLUDE THAT THE GOVERNMENT HAS NOT CARRIED ITS BURDEN
OF PROVING BY "CLEAR, UNEQUIVOCAL, AND CONVINCING" EVIDENCE WHICH DOES
NOT LEAVE "THE ISSUE IN DOUBT," THAT PETITIONER OBTAINED HIS
CITIZENSHIP ILLEGALLY.  IN SO HOLDING WE DO NOT DECIDE WHAT
INTERPRETATION OF THE PARTY'S ATTITUDE TOWARD FORCE AND VIOLENCE IS THE
MOST PROBABLE ON THE BASIS OF THE PRESENT RECORD, OR THAT PETITIONER'S
TESTIMONY IS ACCEPTABLE AT FACE VALUE.  WE HOLD ONLY THAT WHERE TWO
INTERPRETATIONS OF AN ORGANIZATION'S PROGRAM ARE POSSIBLE, THE ONE
REPREHENSIBLE AND A BAR TO NATURALIZATION AND THE OTHER PERMISSIBLE, A
COURT IN A DENATURALIZATION PROCEEDING, ASSUMING THAT IT CAN RE-EXAMINE
A FINDING OF ATTACHMENT UPON A CHARGE OF ILLEGAL PROCUREMENT, IS NOT
JUSTIFIED IN CANCELING A CERTIFICATE OF CITIZENSHIP BY IMPUTING THE
REPREHENSIBLE INTERPRETATION TO A MEMBER OF THE ORGANIZATION IN THE
ABSENCE OF OVERT ACTS INDICATING THAT SUCH WAS HIS INTERPRETATION.  SO
UNCERTAIN A CHAIN OF PROOF DOES NOT ADD UP TO THE REQUISITE "CLEAR,
UNEQUIVOCAL, AND CONVINCING" EVIDENCE FOR SETTING ASIDE A
NATURALIZATION DECREE.  WERE THE LAW OTHERWISE, VALUABLE RIGHTS WOULD
REST UPON A SLENDER REED, AND THE SECURITY OF THE STATUS OF OUR
NATURALIZED CITIZENS MIGHT DEPEND IN CONSIDERABLE DEGREE UPON THE
POLITICAL TEMPER OF MAJORITY THOUGHT AND THE STRESSES OF THE TIMES. 
THOSE ARE CONSEQUENCES FOREIGN TO THE BEST TRADITIONS OF THIS NATION
AND THE CHARACTERISTICS OF OUR INSTITUTIONS. 

                                  II 

THIS DISPOSES OF THE ISSUES FRAMED BY THE GOVERNMENT'S COMPLAINT WHICH
ARE HERE PRESSED.  AS ADDITIONAL REASONS FOR ITS CONCLUSION THAT
PETITIONER'S NATURALIZATION WAS FRAUDULENTLY AND ILLEGALLY PROCURED,
THE DISTRICT COURT FOUND, HOWEVER, THAT PETITIONER WAS A DISBELIEVER
IN, AND A MEMBER OF AN ORGANIZATION TEACHING DISBELIEF IN, ORGANIZED
GOVERNMENT,  FN53  AND THAT HIS OATH OF ALLEGIANCE, REQUIRED BY 8
U.S.C. SEC. 381, WAS FALSE.  THESE ISSUES ARE OUTSIDE THE SCOPE OF THE
COMPLAINT,  FN54  AS IS ANOTHER GROUND URGED IN SUPPORT OF THE JUDGMENT
BELOW AS TO WHICH THE DISTRICT COURT MADE NO FINDINGS.  FN55  BECAUSE
THEY ARE OUTSIDE THE SCOPE OF THE COMPLAINT, WE DO NOT CONSIDER THEM. 
AS WE SAID IN DE JONGE V. OREGON, "CONVICTION UPON A CHARGE NOT MADE
WOULD BE SHEER DENIAL OF DUE PROCESS."  299 U.S. 353, 362.  A
DENATURALIZATION SUIT IS NOT A CRIMINAL PROCEEDING.  BUT NEITHER IS IT
AN ORDINARY CIVIL ACTION SINCE IT INVOLVES AN IMPORTANT ADJUDICATION OF
STATUS.  CONSEQUENTLY WE THINK THE GOVERNMENT SHOULD BE LIMITED, AS IN
A CRIMINAL PROCEEDING, TO THE MATTERS CHARGED IN ITS COMPLAINT. 

ONE OTHER GROUND ADVANCED IN SUPPORT OF THE JUDGMENT BELOW WAS NOT
CONSIDERED BY THE LOWER COURTS AND DOES NOT MERIT DETAILED TREATMENT. 
IT IS THAT PETITIONER WAS NOT ENTITLED TO NATURALIZATION BECAUSE HE WAS
DEPORTABLE IN 1927 UNDER THE IMMIGRATION ACT OF 1918(40 STAT. 1012, AS
AMENDED BY 41 STAT. 1008; 8 U.S.C. SEC. 137) AS AN ALIEN MEMBER OF AN
ORGANIZATION ADVOCATING OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES BY FORCE AND VIOLENCE.  THIS ISSUE IS ANSWERED BY OUR PRIOR
DISCUSSION OF THE EVIDENCE IN THIS RECORD RELATING TO FORCE AND
VIOLENCE.  ASSUMING THAT DEPORTABILITY AT THE TIME OF NATURALIZATION
SATISFIES THE REQUIREMENT OF ILLEGALITY UNDER SEC. 15 WHICH GOVERNS
THIS PROCEEDING, THE SAME FAILURE TO ESTABLISH ADEQUATELY THE ATTITUDE
TOWARD FORCE AND VIOLENCE OF THE ORGANIZATIONS TO WHICH PETITIONER
BELONGED FORBIDS HIS DENATURALIZATION ON THE GROUND OF MEMBERSHIP. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE CIRCUIT COURT
OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  AT THE TIME THIS PROCEEDING WAS STARTED THIS SECTION READ IN
PART AS FOLLOWS: 

"IT SHALL BE THE DUTY OF THE UNITED STATES DISTRICT ATTORNEYS FOR THE
RESPECTIVE DISTRICTS, OR THE COMMISSIONER OF IMMIGRATION AND
NATURALIZATION OR DEPUTY COMMISSIONER OF IMMIGRATION AND
NATURALIZATION, UPON AFFIDAVIT SHOWING GOOD CAUSE THEREFOR, TO
INSTITUTE PROCEEDINGS IN ANY COURT HAVING JURISDICTION TO NATURALIZE
ALIENS IN THE JUDICIAL DISTRICT IN WHICH THE NATURALIZED CITIZEN MAY
RESIDE AT THE TIME OF BRINGING THE SUIT, FOR THE PURPOSE OF SETTING
ASIDE AND CANCELING THE CERTIFICATE OF CITIZENSHIP ON THE GROUND OF
FRAUD OR ON THE GROUND THAT SUCH CERTIFICATE OF CITIZENSHIP WAS
ILLEGALLY PROCURED  ...  "  8 U.S.C. SEC. 405. 

THIS PROVISION IS CONTINUED IN SUBSTANCE BY SEC. 338 OF THE
NATIONALITY ACT OF 1940, 54 STAT. 1137, 1158, 8 U.S.C. SEC. 738. 

FN2  SECTION 4 OF THE ACT OF 1906 PROVIDED: 

"FOURTH.  IT SHALL BE MADE TO APPEAR TO THE SATISFACTION OF THE COURT
ADMITTING ANY ALIEN TO CITIZENSHIP THAT IMMEDIATELY PRECEDING THE DATE
OF HIS APPLICATION HE HAS RESIDED CONTINUOUSLY WITHIN THE UNITED STATES
FIVE YEARS AT LEAST, AND WITHIN THE STATE OR TERRITORY WHERE SUCH COURT
IS AT THE TIME HELD ONE YEAR AT LEAST, AND THAT DURING THAT TIME HE HAS
BEHAVED AS A MAN OF GOOD MORAL CHARACTER, ATTACHED TO THE PRINCIPLES OF
THE CONSTITUTION OF THE UNITED STATES, AND WELL DISPOSED TO THE GOOD
ORDER AND HAPPINESS OF THE SAME.  IN ADDITION TO THE OATH OF THE
APPLICANT, THE TESTIMONY OF AT LEAST TWO WITNESSES, CITIZENS OF THE
UNITED STATES, AS TO THE FACTS OF RESIDENCE, MORAL CHARACTER, AND
ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION SHALL BE REQUIRED, AND
THE NAME, PLACE OF RESIDENCE, AND OCCUPATION OF EACH WITNESS SHALL BE
SET FORTH IN THE RECORD."  34 STAT. 598; 8 U.S.C. SEC. 382.    FN3
SINCE 1790 CONGRESS HAS CONFERRED THE FUNCTION OF ADMITTING ALIENS TO
CITIZENSHIP EXCLUSIVELY UPON THE COURTS.  IN EXERCISING THEIR AUTHORITY
UNDER THIS MANDATE THE FEDERAL COURTS ARE EXERCISING THE JUDICIAL POWER
OF THE UNITED STATES, CONFERRED UPON THEM BY ARTICLE III OF THE
CONSTITUTION.  TUTUN V. UNITED STATES, 270 U.S. 568.  FOR THIS REASON
IT HAS BEEN SUGGESTED THAT A DECREE OF NATURALIZATION, EVEN THOUGH THE
UNITED STATES DOES NOT APPEAR, CANNOT BE COMPARED (AS WAS DONE IN
JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 238) TO AN ADMINISTRATIVE
GRANT OF LAND OR OF LETTERS PATENT FOR INVENTION, AND THAT THE
PERMISSIBLE AREA OF RE-EXAMINATION IS DIFFERENT IN THE TWO SITUATIONS. 

FN4  THE RECORD CONTAINS NOTHING TO INDICATE THAT THE SAME IS NOT
TRUE FOR THE PERIOD AFTER 1927. 

FN5  FOR A DISCUSSION OF THE ADEQUACY OF SOMEWHAT SIMILAR TESTIMONY
BY HYNES SEE EX PARTE FIERSTEIN, 41 F.2D 53. 

FN6  IV.  "THE COURT FINDS THAT IT IS TRUE THAT SAID DECREE AND
CERTIFICATE OF NATURALIZATION WERE ILLEGALLY PROCURED AND OBTAINED IN
THIS:  THAT RESPONDENT (PETITIONER) WAS NOT, AT THE TIME OF HIS
NATURALIZATION BY SAID COURT, AND DURING THE PERIOD OF FIVE YEARS
IMMEDIATELY PRECEDING THE FILING OF HIS PETITION FOR NATURALIZATION HAD
NOT BEHAVED AS, A PERSON ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION
OF THE UNITED STATES AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS
OF THE SAME. 

"THE COURT FINDS THAT IT IS NOT TRUE THAT AT THE TIME OF THE FILING
OF HIS PETITION FOR NATURALIZATION RESPONDENT WAS NOT A DISBELIEVER IN
OR OPPOSED TO ORGANIZED GOVERNMENT OR A MEMBER OF OR AFFILIATED WITH
ANY ORGANIZATION OR BODY OF PERSONS TEACHING DISBELIEF IN OR OPPOSED TO
ORGANIZED GOVERNMENT. 

"THE COURT FINDS THAT IN TRUTH AND IN FACT DURING ALL OF SAID TIMES
RESPONDENT HAD NOT BEHAVED AS A MAN ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION OF THE UNITED STATES AND WELL DISPOSED TO THE GOOD ORDER
AND HAPPINESS OF THE SAME, BUT WAS A MEMBER OF AND AFFILIATED WITH AND
BELIEVED IN AND SUPPORTED THE PRINCIPLES OF CERTAIN ORGANIZATIONS KNOWN
AS THE WORKERS PARTY OF AMERICA, THE WORKERS (COMMUNIST) PARTY OF
AMERICA, THE COMMUNIST PARTY OF THE UNITED STATES OF AMERICA, THE YOUNG
WORKERS LEAGUE OF AMERICA, THE YOUNG WORKERS (COMMUNIST) LEAGUE OF
AMERICA AND THE YOUNG COMMUNIST LEAGUE OF AMERICA, WHICH ORGANIZATIONS
WERE, AND EACH OF THEM WAS, AT ALL TIMES HEREIN MENTIONED, A SECTION OF
THE THIRD INTERNATIONAL, THE PRINCIPLES OF ALL OF WHICH SAID
ORGANIZATIONS WERE OPPOSED TO THE PRINCIPLES OF THE CONSTITUTION OF THE
UNITED STATES, AND ADVISED, ADVOCATED, AND TAUGHT THE OVERTHROW OF THE
GOVERNMENT, CONSTITUTION AND LAWS OF THE UNITED STATES BY FORCE AND
VIOLENCE AND TAUGHT DISBELIEF IN AND OPPOSITION TO ORGANIZED
GOVERNMENT. 

V. "THE COURT FURTHER FINDS THAT DURING ALL OF SAID TIMES THE
RESPONDENT HAS BEEN AND NOW IS A MEMBER OF SAID ORGANIZATIONS AND HAS
CONTINUED TO BELIEVE IN, ADVOCATE AND SUPPORT THE SAID PRINCIPLES OF
SAID ORGANIZATIONS." 

VI.  (THE SUBSTANCE OF THIS FINDING IS THAT PETITIONER FRAUDULENTLY
CONCEALED HIS COMMUNIST AFFILIATION FROM THE NATURALIZATION COURT.  IT
IS NOT SET FORTH BECAUSE IT IS NOT AN ISSUE HERE.  SEE NOTE 7, INFRA.) 

VII.  "THE COURT FURTHER FINDS THAT IT IS TRUE THAT SAID DECREE AND
CERTIFICATE OF NATURALIZATION WERE ILLEGALLY AND FRAUDULENTLY PROCURED
AND OBTAINED IN THIS:  THAT BEFORE RESPONDENT (PETITIONER) WAS ADMITTED
TO CITIZENSHIP AS AFORESAID, HE DECLARED ON OATH IN OPEN COURT THAT HE
WOULD SUPPORT THE CONSTITUTION OF THE UNITED STATES, AND THAT HE
ABSOLUTELY AND ENTIRELY RENOUNCED AND ABJURED ALL ALLEGIANCE AND
FIDELITY TO ANY FOREIGN PRINCE, POTENTATE, STATE, OR SOVEREIGNTY, AND
THAT HE WOULD SUPPORT AND DEFEND THE CONSTITUTION AND LAWS OF THE
UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC, AND BEAR TRUE
FAITH AND ALLEGIANCE TO THE SAME, WHEREAS IN TRUTH AND IN FACT, AT THE
TIME OF MAKING SUCH DECLARATIONS ON OATH IN OPEN COURT, RESPONDENT
(PETITIONER) DID NOT INTEND TO SUPPORT THE CONSTITUTION OF THE UNITED
STATES, AND DID NOT INTEND ABSOLUTELY AND ENTIRELY TO RENOUNCE AND
ABJURE ALL ALLEGIANCE AND FIDELITY TO ANY FOREIGN PRINCE, POTENTATE,
STATE, OR SOVEREIGNTY, AND DID NOT INTEND TO SUPPORT AND DEFEND THE
CONSTITUTION AND LAWS OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN
AND DOMESTIC, AND/OR TO BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME, BUT
RESPONDENT AT SAID TIME INTENDED TO AND DID MAINTAIN ALLEGIANCE AND
FIDELITY TO THE UNION OF SOVIET SOCIALIST REPUBLICS AND TO THE SAID
THIRD INTERNATIONAL, AND INTENDED TO ADHERE TO AND SUPPORT AND DEFEND
AND ADVOCATE THE PRINCIPLES AND TEACHINGS OF SAID THIRD INTERNATIONAL,
WHICH PRINCIPLES AND TEACHINGS WERE OPPOSED TO THE PRINCIPLES OF THE
CONSTITUTION OF THE UNITED STATES AND ADVISED, ADVOCATED AND TAUGHT THE
OVERTHROW OF THE GOVERNMENT, CONSTITUTION AND LAWS OF THE UNITED STATES
BY FORCE AND VIOLENCE." 

FN7  THAT COURT SAID IT WAS UNNECESSARY TO CONSIDER THE CHARGE OF
FRAUDULENT PROCUREMENT BY CONCEALMENT OF PETITIONER'S COMMUNIST
AFFILIATION.  THE GOVERNMENT HAS NOT PRESSED THIS CHARGE HERE, AND WE
DO NOT CONSIDER IT. 

FN8  THE NATIONALITY ACT OF 1940, WHILE ENLARGING THE CATEGORY OF
BELIEFS DISQUALIFYING PERSONS THEREAFTER APPLYING FOR CITIZENSHIP, DOES
NOT IN TERMS MAKE COMMUNIST BELIEFS OR AFFILIATION GROUNDS FOR REFUSAL
OF NATURALIZATION.  SEC. 305, 54 STAT. 1137, 1141; 8 U.S.C. SEC. 705. 

BILLS TO WRITE A DEFINITION OF "COMMUNIST" INTO THE IMMIGRATION AND
DEPORTATION ACT OF 1918 AS AMENDED (40 STAT. 1012, 41 STAT. 1008) AND
TO PROVIDE FOR THE DEPORTATION OF "COMMUNISTS" FAILED TO PASS CONGRESS
IN 1932 AND AGAIN IN 1935.  SEE H.R. 12044, H. REP. NO. 1353, S. REP.
NO. 808, 75 CONG. REC. 12097-108, 72D CONG., 1ST SESS.  SEE ALSO H.R.
7120, H. REP. NO. 1023, PTS.  1 AND 2, 74TH CONG., 1ST SESS. 

FN9  SEC. 7 OF ACT OF JUNE 29, 1906, 8 U.S.C. SEC. 364. 

FN10  SEC. 4 OF ACT OF JUNE 29, 1906, 8 U.S.C. SEC. 381. 

FN11  SEC. 4 OF ACT OF JUNE 29, 1906, 8 U.S.C. SEC. 382. 

FN12  THE LEGISLATIVE HISTORY OF THE PHRASE GIVES SOME SUPPORT TO
THIS VIEW.  THE BEHAVIOR REQUIREMENT FIRST APPEARED IN THE
NATURALIZATION ACT OF 1795, 1 STAT. 414, WHICH WAS DESIGNED TO TIGHTEN
THE ACT OF 1790, 1 STAT. 103.  THE DISCURSIVE DEBATES ON THE 1795 ACT
CAST LITTLE LIGHT UPON THE MEANING OF "BEHAVED," BUT INDICATE THAT THE
PURPOSE OF THE REQUIREMENT WAS TO PROVIDE A PROBATIONARY PERIOD DURING
WHICH ALIENS COULD LEARN OF OUR CONSTITUTIONAL PLAN.  SOME MEMBERS WERE
DISTURBED BY THE POLITICAL FERMENT OF THE AGE AND SPOKE ACCORDINGLY,
WHILE OTHERS REGARDED THE UNITED STATES AS AN ASYLUM FOR THE OPPRESSED
AND MISTRUSTED EFFORTS TO PROBE MINDS FOR BELIEFS.  IT IS PERHAPS
SIGNIFICANT THAT THE OATH, WHICH WAS ADOPTED OVER THE PROTEST OF
MADISON, THE SPONSOR OF THE BILL, DID NOT REQUIRE THE APPLICANT TO
SWEAR THAT HE WAS ATTACHED TO THE CONSTITUTION, BUT ONLY THAT HE WOULD
SUPPORT IT.  SEE 4 ANNALS OF CONGRESS, PP. 1004-09, 1021-23, 1026-27,
1030-58, 1062, 1064-66.  SEE ALSO FRANKLIN, LEGISLATIVE HISTORY OF
NATURALIZATION IN THE UNITED STATES (1906), CHAPTER IV. 

THE BEHAVIOR REQUIREMENT WAS REENACTED IN 1802(2 STAT. 153) AT THE
RECOMMENDATION OF JEFFERSON FOR THE REPEAL OF THE STRINGENT ACT OF
1798, 1 STAT. 566.  SEE FRANKLIN, OP. CIT., CHAPTER VI.  IT CONTINUED
UNCHANGED UNTIL THE ACT OF 1906 WHICH FOR THE FIRST TIME IMPORTED THE
TEST OF PRESENT BELIEF INTO THE NATURALIZATION LAWS WHEN IT PROVIDED IN
SEC. 7 THAT DISBELIEVERS IN ORGANIZED GOVERNMENT AND POLYGAMISTS COULD
NOT BECOME CITIZENS.  THE CONTINUATION OF THE BEHAVIOR TEST FOR
ATTACHMENT IS SOME INDICATION THAT A LESS SEARCHING EXAMINATION WAS
INTENDED IN THIS FIELD - THAT CONDUCT AND NOT BELIEF (OTHER THAN
ANARCHIST OR POLYGAMIST) WAS THE CRITERION.  THE NATIONALITY ACT OF
1940 CHANGED THE BEHAVIOR REQUIREMENT TO A PROVISION THAT NO PERSON
COULD BE NATURALIZED UNLESS HE "HAS BEEN AND STILL IS A PERSON OF GOOD
MORAL CHARACTER, ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE
UNITED STATES, AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE
UNITED STATES," 54 STAT. 1142, 8 U.S.C. SEC. 707.  THE REPORT OF THE
PRESIDENT'S COMMITTEE TO REVISE THE NATIONALITY LAWS (1939) INDICATES
THIS CHANGE IN LANGUAGE WAS NOT REGARDED AS A CHANGE IN SUBSTANCE.  P.
23.  THE CONGRESSIONAL COMMITTEE REPORTS ARE SILENT ON THE QUESTION. 
THE SPONSORS OF THE ACT IN THE HOUSE, HOWEVER, DECLARED GENERALLY AN
INTENT TO TIGHTEN AND RESTRICT THE NATURALIZATION LAWS.  SEE 86 CONG.
REC. 11939, 11942, 11947, 11949.  THE CHAIRMAN OF THE SUB-COMMITTEE WHO
HAD CHARGE OF THE BILL STATED THAT "SUBSTANTIVE CHANGES ARE NECESSARY
IN CONNECTION WITH CERTAIN RIGHTS, WITH A VIEW TO PREVENTING PERSONS
WHO HAVE NO REAL ATTACHMENT TO THE UNITED STATES FROM ENJOYING THE HIGH
PRIVILEGE OF AMERICAN NATIONALITY."  86 CONG. REC. 11948.  THIS REMARK
SUGGESTS THAT THE CHANGE FROM "BEHAVED AS A MAN ATTACHED" TO "HAS BEEN
AND STILL IS A PERSON ATTACHED" WAS A CHANGE IN MEANING. 

FN13  PROGRAM AND CONSTITUTION OF THE WORKERS PARTY (1921-24). 

FN14  ACCEPTANCE SPEECH OF WILLIAM Z. FOSTER, THE PARTY'S NOMINEE FOR
THE PRESIDENCY IN 1928. 

FN15  WRITING IN 1816 JEFFERSON SAID:  "SOME MEN LOOK AT
CONSTITUTIONS WITH SANCTIMONIOUS REVERENCE, AND DEEM THEM LIKE THE ARK
OF THE COVENANT, TOO SACRED TO BE TOUCHED.  THEY ASCRIBE TO THE MEN OF
THE PRECEDING AGE A WISDOM MORE THAN HUMAN, AND SUPPOSE WHAT THEY DID
TO BE BEYOND AMENDMENT.  I KNEW THAT AGE WELL; I BELONGED TO IT, AND
LABORED WITH IT.  IT DESERVED WELL OF ITS COUNTRY.  IT WAS VERY LIKE
THE PRESENT, BUT WITHOUT THE EXPERIENCE OF THE PRESENT; AND FORTY YEARS
OF EXPERIENCE IN GOVERNMENT IS WORTH A CENTURY OF BOOKREADING; AND THIS
THEY WOULD SAY THEMSELVES, WERE THEY TO RISE FROM THE DEAD.  I AM
CERTAINLY NOT AN ADVOCATE FOR FREQUENT AND UNTRIED CHANGES IN LAWS AND
CONSTITUTIONS.  I THINK MODERATE IMPERFECTIONS HAD BETTER BE BORNE
WITH; BECAUSE, WHEN ONCE KNOWN, WE ACCOMMODATE OURSELVES TO THEM, AND
FIND PRACTICAL MEANS OF CORRECTING THEIR ILL EFFECTS.  BUT I KNOW ALSO,
THAT LAWS AND INSTITUTIONS MUST GO HAND IN HAND WITH THE PROGRESS OF
THE HUMAN MIND.  AS THAT BECOMES MORE DEVELOPED, MORE ENLIGHTENED, AS
NEW DISCOVERIES ARE MADE, NEW TRUTHS DISCLOSED, AND MANNERS AND
OPINIONS CHANGE WITH THE CHANGE OF CIRCUMSTANCES, INSTITUTIONS MUST
ADVANCE ALSO, AND KEEP PACE WITH THE TIMES.  WE MIGHT AS WELL REQUIRE A
MAN TO WEAR STILL THE COAT WHICH FITTED HIM WHEN A BOY, AS CIVILIZED
SOCIETY TO REMAIN EVER UNDER THE REGIMEN OF THEIR BARBAROUS
ANCESTORS."  FORD, JEFFERSON'S WRITINGS, VOL. X, P. 42. 

COMPARE HIS FIRST INAUGURAL ADDRESS:  "AND LET US REFLECT THAT,
HAVING BANISHED FROM OUR LAND THAT RELIGIOUS INTOLERANCE UNDER WHICH
MANKIND SO LONG BLED AND SUFFERED, WE HAVE YET GAINED LITTLE IF WE
COUNTENANCE A POLITICAL INTOLERANCE AS DESPOTIC, AS WICKED, AND CAPABLE
OF AS BITTER AND BLOODY PERSECUTIONS.  DURING THE THROES AND
CONVULSIONS OF THE ANCIENT WORLD, DURING THE AGONIZING SPASMS OF
INFURIATED MAN, SEEKING THROUGH BLOOD AND SLAUGHTER HIS LONG-LOST
LIBERTY, IT WAS NOT WONDERFUL THAT THE AGITATION OF THE BILLOWS SHOULD
REACH EVEN THIS DISTANT AND PEACEFUL SHORE; THAT THIS SHOULD BE MORE
FELT AND FEARED BY SOME AND LESS BY OTHERS, AND SHOULD DIVIDE OPINIONS
AS TO MEASURES OF SAFETY.  BUT EVERY DIFFERENCE OF OPINION IS NOT A
DIFFERENCE OF PRINCIPLE.  WE HAVE CALLED BY DIFFERENT NAMES BRETHREN OF
THE SAME PRINCIPLE.  WE ARE ALL REPUBLICANS, WE ARE ALL FEDERALISTS. 
IF THERE BE ANY AMONG US WHO WOULD WISH TO DISSOLVE THIS UNION OR TO
CHANGE ITS REPUBLICAN FORM, LET THEM STAND UNDISTURBED AS MONUMENTS OF
THE SAFETY WITH WHICH ERROR OF OPINION MAY BE TOLERATED WHERE REASON IS
LEFT FREE TO COMBAT IT.  I KNOW, INDEED, THAT SOME HONEST MEN FEAR THAT
A REPUBLICAN GOVERNMENT CANNOT BE STRONG, THAT THIS GOVERNMENT IS NOT
STRONG ENOUGH; BUT WOULD THE HONEST PATRIOT, IN THE FULL TIDE OF
SUCCESSFUL EXPERIMENT, ABANDON A GOVERNMENT WHICH HAS SO FAR KEPT US
FREE AND FIRM ON THE THEORETIC AND VISIONARY FEAR THAT THIS GOVERNMENT,
THE WORLD'S BEST HOPE, MAY BY POSSIBILITY WANT ENERGY TO PRESERVE
ITSELF?  I TRUST NOT."  RICHARDSON, MESSAGES AND PAPERS OF THE
PRESIDENTS, VOL. I, P. 310. 

FN16  SEE ALSO 18 CORNELL LAW QUARTERLY 251; FREUND, UNITED STATES V.
MACINTOSH, A SYMPOSIUM, 26 ILLINOIS LAW REVIEW 375, 385; 46 HARVARD LAW
REVIEW 325. 

AS A MATTER OF FACT ONE VERY MATERIAL CHANGE IN THE CONSTITUTION AS
IT STOOD IN 1927 WHEN PETITIONER WAS NATURALIZED HAS SINCE BEEN
EFFECTED BY THE REPEAL OF THE EIGHTEENTH AMENDMENT. 

FN17  SEE NOTE 12, ANTE. 

FN18  IN 1938 CONGRESS FAILED TO PASS A BILL DENYING NATURALIZATION
TO ANY PERSON "WHO BELIEVES IN ANY FORM OF GOVERNMENT FOR THE UNITED
STATES CONTRARY TO THAT NOW EXISTING IN THE UNITED STATES, OR WHO IS A
MEMBER OF OR AFFILIATED WITH ANY ORGANIZATION WHICH ADVOCATES ANY FORM
OF GOVERNMENT FOR THE UNITED STATES CONTRARY TO THAT NOW EXISTING IN
THE UNITED STATES."  H.R. 9690, 75TH CONG., 3D SESS. 

FN19  BRIEF, PP. 103-04.  SUPPORTING THIS VIEW ARE IN RE SARALIEFF,
59 F.2D 436; IN RE VAN LAEKEN, 22 F.SUPP.  145; IN RE SHANIN, 278 F.
739.  SEE ALSO UNITED STATES V. TAPOLCSANYI, 40 F.2D 255; EX PARTE
SAUER, 81 F. 355; UNITED STATES V. OLSSON, 196 F. 562, REVERSED ON
STIPULATION, 201 F. 1022. 

FN20  "THE TEST IS  ...  WHETHER HE SUBSTITUTES REVOLUTION FOR
EVOLUTION, DESTRUCTION FOR CONSTRUCTION, WHETHER HE BELIEVES IN AN
ORDERED SOCIETY, A GOVERNMENT OF LAWS, UNDER WHICH THE POWERS OF
GOVERNMENT ARE GRANTED BY THE PEOPLE BUT UNDER A GRANT WHICH ITSELF
PRESERVES TO THE INDIVIDUAL AND TO MINORITIES CERTAIN RIGHTS OR
FREEDOMS WHICH EVEN THE MAJORITY MAY NOT TAKE AWAY; WHETHER, IN SUM,
THE EVENTS WHICH BEGAN AT LEAST NO FURTHER BACK THAN THE DECLARATION OF
INDEPENDENCE, FOLLOWED BY THE REVOLUTIONARY WAR AND THE ADOPTION OF THE
CONSTITUTION, ESTABLISH PRINCIPLES WITH RESPECT TO GOVERNMENT, THE
INDIVIDUAL, THE MINORITY AND THE MAJORITY, BY WHICH ORDERED LIBERTY IS
REPLACED BY DISORGANIZED LIBERTY."  BRIEF, P. 105.    FN21  SEE
GENERALLY THORPE, CONSTITUTIONAL HISTORY OF THE UNITED STATES (1901),
VOL. III, BOOK V. 

COMPARE THE EFFECT OF THE EIGHTEENTH AMENDMENT.    FN22  PETITIONER
TESTIFIED THAT THIS WAS NEVER ADOPTED, BUT WAS MERELY A DRAFT FOR
STUDY. 

FN23  SEE HAYNES, THE SENATE OF THE UNITED STATES (1938), PP. 11, 96
98.  106-115, 1068-74. 

FN24  COMPARE NEBRASKA'S EXPERIMENT WITH SUCH A BODY.  NEBRASKA
CONSTITUTION, ARTICLE III, SEC. 1.  SEE 13 NEBRASKA LAW BULLETIN 341. 

FN24  A  E.G., THE RECALL OF JUDICIAL DECISIONS.  SEE THEODORE
ROOSEVELT, A CHARTER OF DEMOCRACY, S. DOC. NO. 348, 62D CONG., 2D SESS.
FOR PROPOSED CONSTITUTIONAL AMENDMENTS RELATING TO THE JUDICIARY AND
THIS COURT SEE H. DOC. NO. 353, PT. 2, 54TH CONG., 2D SESS., PP. 144
64; S. DOC. NO. 93, 69TH CONG., 1ST SESS., PP. 83, 86, 93, 101, 111,
123, 133. 

FN24  B  FOR AN ACCOUNT OF THE ATTACKS ON THE VETO POWER SEE H. DOC.
NO. 353, PT. 2, 54TH CONG., 2D SESS., PP. 129-34. 

FN25  ABC OF COMMUNISM; LENIN, STATE AND REVOLUTION; STATUTES, THESES
AND CONDITIONS OF ADMISSION TO THE COMMUNIST INTERNATIONAL; STALIN,
THEORY AND PRACTICE OF LENINISM; 1928 PROGRAM OF THE COMMUNIST
INTERNATIONAL. 

FN26  "IT SHOULD BE OBSERVED THAT THE QUESTION OF DEPRIVING THE
EXPLOITERS OF THE FRANCHISE IS PURELY A RUSSIAN QUESTION, AND NOT A
QUESTION OF THE DICTATORSHIP OF THE PROLETARIAT IN GENERAL.  ...  IT
WOULD BE A MISTAKE, HOWEVER, TO GUARANTEE IN ADVANCE THAT THE IMPENDING
PROLETARIAN REVOLUTIONS IN EUROPE WILL ALL, OR FOR THE MOST PART, BE
NECESSARILY ACCOMPANIED BY THE RESTRICTION OF THE FRANCHISE FOR THE
BOURGEOISIE.  PERHAPS THEY WILL.  AFTER OUR EXPERIENCE OF THE WAR AND
OF THE RUSSIAN REVOLUTION WE CAN SAY THAT IT WILL PROBABLY BE SO; BUT
IT IS NOT ABSOLUTELY NECESSARY FOR THE PURPOSE OF REALIZING THE
DICTATORSHIP, IT IS NOT AN ESSENTIAL SYMPTOM OF THE LOGICAL CONCEPT
'DICTATORSHIP,' IT DOES NOT ENTER AS AN ESSENTIAL CONDITION IN THE
HISTORICAL AND CLASS CONCEPT 'DICTATORSHIP.'"  SELECTED WORKS, VOL.
VII, PP. 142-3.  (PLACED IN EVIDENCE BY PETITIONER.) 

FN27  BRIEF, PP. 23-24. 

FN28  BRIEF, PP. 25-26. 

FN29  IN RE SADERQUIST, 11 F.SUPP.  525; SKEFFINGTON V. KATZEFF, 277
F. 129; UNITED STATES V. CURRAN, 11 F.2D 683; KENMOTSU V. NAGLE, 44
F.2D 953; SORMUNEN V. NAGLE, 59 F.2D 398; BRANCH V. CAHILL, 88 F.2D
545; EX PARTE VILARINO, 50 F.2D 582; KJAR V. DOAK, 61 F.2D 566; BERKMAN
V. TILLINGHAST, 58 F.2D 621; UNITED STATES V. SMITH, 2 F.2D 90; UNITED
STATES V. WALLIS, 268 F. 413. 

FN30  STRECKER V. KESSLER, 95 F.2D 976, 96 F.2D 1020, AFFIRMED ON
OTHER GROUNDS, 307 U.S. 22; EX PARTE FIERSTEIN, 41 F.2D 53; COLYER V.
SKEFFINGTON, 265 F. 17, REVERSED SUB NOM. SKEFFINGTON V. KATZEFF, 277
F. 129. 

FN31  UNITED STATES EX REL. YOKINEN V. COMMISSIONER, 57 F.2D 707;
UNITED STATES V. PERKINS, 79 F.2D 533; UNITED STATES EX REL. FERNANDAS
V. COMMISSIONER, 65 F.2D 593; UNGAR V. SEAMAN, 4 F.2D 80; EX PARTE
JURGANS, 17 F.2D 507; UNITED STATES EX REL. FORTMUELLER V.
COMMISSIONER, 14 F.SUPP.  484; MURDOCH V. CLARK, 53 F.2D 155; WOLCK V.
WEEDIN, 58 F.2D 928. 

FN32  BRIEF, P. 60. 

FN33  BRIEF, P. 77.  SEE ALSO COLYER V. SKEFFINGTON, 265 F. 17, 59,
REVERSED SUB NOM. SKEFFINGTON V. KATZEFF, 277 F. 129.  AND SEE EVATT,
J., IN KING V. HUSH (EX PARTE DEVANNY), 48 C.L.R. 487, 516-18. 

FN34  RULE 52(A) OF THE RULES OF CIVIL PROCEDURE, 28 U.S.C.A.,
FOLLOWING SEC. 723(C). 

FN35  THE MANIFESTO WAS PROCLAIMED IN 1848.  THE EDITION IN EVIDENCE
WAS PUBLISHED BY THE INTERNATIONAL PUBLISHERS IN 1932.  PETITIONER
TESTIFIED THAT HE BELIEVED IT TO BE AN AUTHORIZED PUBLICATION, THAT HE
WAS FAMILIAR WITH THE WORK, THAT IT WAS USED IN CLASSES, AND THAT HE
THOUGHT ITS PRINCIPLES WERE CORRECT "PARTICULARLY AS THEY APPLIED TO
THE PERIOD IN WHICH THEY WERE WRITTEN AND THE COUNTRY ABOUT WHICH THEY
WERE WRITTEN." 

THE EXCERPTS STRESSED ARE:  "THE COMMUNISTS DISDAIN TO CONCEAL THEIR
VIEWS AND AIMS.  THEY OPENLY DECLARE THAT THEIR ENDS CAN BE ATTAINED
ONLY BY THE FORCIBLE OVERTHROW OF ALL EXISTING SOCIAL CONDITIONS." 

     .         .         .         .         . 

"THOUGH NOT IN SUBSTANCE, YET IN FORM, THE STRUGGLE OF THE
PROLETARIAT WITH THE BOURGEOISIE IS AT FIRST A NATIONAL STRUGGLE.  THE
PROLETARIAT OF EACH COUNTRY MUST, OF COURSE, FIRST OF ALL SETTLE
MATTERS WITH ITS OWN BOURGEOISIE. 

"IN DEPICTING THE MOST GENERAL PHASES OF THE DEVELOPMENT OF THE
PROLETARIAT, WE TRACED THE MORE OR LESS VEILED CIVIL WAR, RAGING WITHIN
EXISTING SOCIETY, UP TO THE POINT WHERE THAT WAR BREAKS OUT INTO OPEN
REVOLUTION, AND WHERE THE VIOLENT OVERTHROW OF THE BOURGEOISIE LAYS THE
FOUNDATION FOR THE SWAY OF THE PROLETARIAT." 

FN36  THIS WORK WAS WRITTEN IN 1917 BETWEEN THE FEBRUARY AND OCTOBER
REVOLUTIONS IN RUSSIA.  THE COPY IN EVIDENCE WAS PUBLISHED IN 1924 BY
THE DAILY WORKER PUBLISHING COMPANY.  PETITIONER TESTIFIED THAT IT WAS
CIRCULATED BY THE PARTY AND THAT IT WAS PROBABLY USED IN THE CLASSES OF
WHICH HE WAS "EDUCATIONAL DIRECTOR." 

THE EXCERPTS ARE: 

"FIFTH, IN THE SAME WORK OF ENGELS,  ...  THERE IS ALSO A
DISQUISITION ON THE NATURE OF A VIOLENT REVOLUTION; AND THE HISTORICAL
APPRECIATION OF ITS ROLE BECOMES, WITH ENGELS, A VERITABLE PANEGYRIC OF
A REVOLUTION BY FORCE.  THIS, OF COURSE, NO ONE REMEMBERS.  TO TALK OR
EVEN TO THINK OF THE IMPORTANCE OF THIS IDEA, IS NOT CONSIDERED
RESPECTABLE BY OUR MODERN SOCIALIST PARTIES, AND IN THE DAILY
PROPAGANDA AND AGITATION AMONG THE MASSES IT PLAYS NO PART WHATEVER. 
YET IT IS INDISSOLUBLY BOUND UP WITH THE 'WITHERING AWAY' OF THE STATE
IN ONE HARMONIOUS WHOLE.  HERE IS ENGELS' ARGUMENT: 

"'THAT FORCE ALSO PLAYS ANOTHER PART IN HISTORY (OTHER THAN THAT OF A
PERPETUATION OF EVIL), NAMELY A REVOLUTIONARY PART; THAT AS MARX SAYS,
IT IS THE MIDWIFE OF EVERY OLD SOCIETY WHEN IT IS PREGNANT WITH A NEW
ONE; THAT FORCE IS THE INSTRUMENT AND THE MEANS BY WHICH SOCIAL
MOVEMENTS HACK THEIR WAY THROUGH AND BREAK UP THE DEAD AND FOSSILIZED
POLITICAL FORMS - OF ALL THIS NOT A WORD BY HERR DUEHRING.  DULY, WITH
SIGHS AND GROANS, DOES HE ADMIT THE POSSIBILITY THAT FOR THE OVERTHROW
OF THE SYSTEM OF EXPLOITATION FORCE MAY, PERHAPS, BE NECESSARY, BUT
MOST UNFORTUNATE IF YOU PLEASE, BECAUSE ALL USE OF FORCE, FORSOOTH,
DEMORALIZES ITS USER.  AND THIS IS SAID IN FACE OF THE GREAT MORAL AND
INTELLECTUAL ADVANCE WHICH HAS BEEN THE RESULT OF EVERY VICTORIOUS
REVOLUTION.  ...  AND THIS TURBID, FLABBY, IMPOTENT, PARSON'S MODE OF
THINKING DARES OFFER ITSELF FOR ACCEPTANCE TO THE MOST REVOLUTIONARY
PARTY HISTORY HAS EVER KNOWN.'" 

     .         .         .         .         . 

"THE NECESSITY OF SYSTEMATICALLY FOSTERING AMONG THE MASSES THIS AND
ONLY THIS POINT OF VIEW ABOUT VIOLENT REVOLUTION LIES AT THE ROOT OF
THE WHOLE OF MARX'S AND ENGELS' TEACHING, AND IT IS JUST THE NEGLECT OF
SUCH PROPAGANDA AND AGITATION BOTH BY THE PRESENT PREDOMINANT SOCIAL
CHAUVINISTS AND THE KAUTSKIAN SCHOOLS THAT BRINGS THEIR BETRAYAL OF IT
INTO PROMINENT RELIEF." 

     .         .         .         .         . 

(QUOTING  ENGELS) "'REVOLUTION IS AN ACT IN WHICH PART OF THE
POPULATION FORCES ITS WILL ON THE OTHER PARTS BY MEANS OF RIFLES,
BAYONETS, CANNON, I.E., BY MOST AUTHORITATIVE MEANS.  AND THE
CONQUERING PARTY IS INEVITABLY FORCED TO MAINTAIN ITS SUPREMACY BY
MEANS OF THAT FEAR WHICH ITS ARMS INSPIRE IN THE REACTIONARIES.'" 

FN37  PETITIONER CONTENDS THAT THIS DOCUMENT WAS NEVER INTRODUCED IN
EVIDENCE, AND THE RECORD SHOWS ONLY THAT IT WAS MARKED FOR
IDENTIFICATION.  THE VIEW WE TAKE OF THE CASE MAKES IT IMMATERIAL
WHETHER THIS DOCUMENT IS IN EVIDENCE OR NOT.  THE COPY FURNISHED US WAS
PRINTED IN 1923 UNDER THE AUSPICES OF THE WORKERS PARTY.  HYNES
TESTIFIED THAT IT WAS AN OFFICIAL PUBLICATION, BUT NOT WIDELY
CIRCULATED.  PETITIONER HAD NO RECOLLECTION OF THE PARTICULAR PAMPHLET
AND TESTIFIED THAT THE AMERICAN PARTY WAS NOT BOUND BY IT. 

THE EXCERPTS ARE: 

"THAT WHICH BEFORE THE VICTORY OF THE PROLETARIAT SEEMS BUT A
THEORETICAL DIFFERENCE OF OPINION ON THE QUESTION OF 'DEMOCRACY,'
BECOMES INEVITABLY ON THE MORROW OF THE VICTORY, A QUESTION WHICH CAN
ONLY BE DECIDED BY FORCE OF ARMS." 

.         .         .         .         . 

"THE WORKING CLASS CANNOT ACHIEVE THE VICTORY OVER THE BOURGEOISIE BY
MEANS OF THE GENERAL STRIKE ALONE, AND BY THE POLICY OF FOLDED ARMS THE
PROLETARIAT MUST RESORT TO AN ARMED UPRISING." 

     .     .         .         .         . 

"THE ELEMENTARY MEANS OF THE STRUGGLE OF THE PROLETARIAT AGAINST THE
RULE OF THE BOURGEOISIE IS, FIRST OF ALL, THE METHOD OF MASS
DEMONSTRATIONS.  SUCH MASS DEMONSTRATIONS ARE PREPARED AND CARRIED OUT
BY THE ORGANIZED MASSES OF THE PROLETARIAT, UNDER THE DIRECTION OF A
UNITED, DISCIPLINED, CENTRALIZED COMMUNIST PARTY.  CIVIL WAR IS WAR. 
IN THIS WAR THE PROLETARIAT MUST HAVE ITS EFFICIENT POLITICAL OFFICERS,
ITS GOOD POLITICAL GENERAL STAFF, TO CONDUCT OPERATIONS DURING ALL THE
STAGES OF THAT FIGHT. 

"THE MASS STRUGGLE MEANS A WHOLE SYSTEM OF DEVELOPING DEMONSTRATIONS
GROWING EVER MORE ACUTE IN FORM, AND LOGICALLY LEADING TO AN UPRISING
AGAINST THE CAPITALIST ORDER OF THE GOVERNMENT.  IN THIS WARFARE OF THE
MASSES DEVELOPING INTO A CIVIL WAR, THE GUIDING PARTY OF THE
PROLETARIAT MUST, AS A GENERAL RULE, SECURE EVERY AND ALL LAWFUL
POSITIONS, MAKING THEM ITS AUXILIARIES IN THE REVOLUTIONARY WORK, AND
SUBORDINATING SUCH POSITIONS TO THE PLANS OF THE GENERAL CAMPAIGN, THAT
OF THE MASS STRUGGLE." 

FN38  THE COPY IN EVIDENCE WAS PRINTED BY THE DAILY WORKER PUBLISHING
COMPANY EITHER IN 1924 OR 1925.  PETITIONER WAS FAMILIAR WITH THE WORK,
BUT NOT THE PARTICULAR EDITION, AND TESTIFIED THAT IT WAS PROBABLY
CIRCULATED BY THE PARTY.  HE HAD READ IT, BUT PROBABLY AFTER HIS
NATURALIZATION.  HYNES AND HUMPHREYS TESTIFIED THAT IT WAS USED IN
COMMUNIST CLASSES. 

THE EXCERPTS ARE: 

"MARX'S LIMITATION WITH REGARD TO THE 'CONTINENT' HAS FURNISHED THE
OPPORTUNISTS AND MENSHEVIKS OF EVERY COUNTRY WITH A PRETEXT FOR
ASSERTING THAT MARX ADMITTED THE POSSIBILITY OF A PEACEFUL
TRANSFORMATION OF BOURGEOIS DEMOCRACY INTO PROLETARIAN DEMOCRACY, AT
LEAST (IN) SOME COUNTRIES (ENGLAND AND AMERICA).  MARX DID IN FACT
RECOGNIZE THE POSSIBILITY OF THIS IN THE ENGLAND AND AMERICA OF 1860,
WHERE MONOPOLIST CAPITALISM AND IMPERIALISM DID NOT EXIST AND WHERE
MILITARISM AND BUREAUCRACY WERE AS YET LITTLE DEVELOPED.  BUT NOW THE
SITUATION IN THESE COUNTRIES IS RADICALLY DIFFERENT; IMPERIALISM HAS
REACHED ITS APOGEE THERE, AND THERE MILITARISM AND BUREAUCRACY ARE
SOVEREIGN.  IN CONSEQUENCE, MARX'S RESTRICTION NO LONGER APPLIES." 

"WITH THE REFORMIST, REFORM IS EVERYTHING, WHILST IN REVOLUTIONARY
WORK IT ONLY APPEARS AS A FORM.  THIS IS WHY WITH THE REFORMIST TACTIC
UNDER A BOURGEOIS GOVERNMENT, ALL REFORM TENDS INEVITABLY TO
CONSOLIDATE THE POWERS THAT BE, AND TO WEAKEN THE REVOLUTION. 

"WITH THE REVOLUTIONARY, ON THE CONTRARY, THE MAIN THING IS THE
REVOLUTIONARY WORK AND NOT THE REFORM.  FOR HIM, REFORM IS ONLY AN
ACCESSORY OF REVOLUTION." 

FN39  (A)  PROGRAM OF THE COMMUNIST INTERNATIONAL, ADOPTED IN 1928
AND PUBLISHED BY THE WORKERS LIBRARY PUBLISHERS, INC., IN 1929: 

"HENCE, REVOLUTION IS NOT ONLY NECESSARY BECAUSE THERE IS NO OTHER
WAY OF OVERTHROWING THE RULING CLASS, BUT ALSO BECAUSE, ONLY IN THE
PROCESS OF REVOLUTION IS THE OVERTHROWING CLASS ABLE TO PURGE ITSELF OF
THE DROSS OF THE OLD SOCIETY AND BECOME CAPABLE OF CREATING A NEW
SOCIETY." 

PETITIONER "AGREED WITH THE GENERAL THEORETICAL CONCLUSIONS STATED
IN" THIS PROGRAM, BUT HE REGARDED "THE APPLICATION OF THAT THEORY" AS
"SOMETHING ELSE." 

(B)  PROGRAMME OF THE YOUNG COMMUNIST INTERNATIONAL, PUBLISHED IN
1929:  "AN OPPRESSED CLASS WHICH DOES NOT ENDEAVOR TO POSSESS AND LEARN
TO HANDLE ARMS WOULD DESERVE TO BE TREATED AS SLAVES.  WE WOULD BECOME
BOURGEOIS PACIFISTS OR OPPORTUNISTS IF WE FORGET THAT WE ARE LIVING IN
A CLASS SOCIETY, AND THAT THE ONLY WAY OUT IS THROUGH CLASS STRUGGLE
AND THE OVERTHROW OF THE POWER OF THE RULING CLASS.  OUR SLOGAN MUST
BE:  'ARMING OF THE PROLETARIAT, TO CONQUER, EXPROPRIATE AND DISARM THE
BOURGEOISIE.'  ONLY AFTER THE PROLETARIAT HAS DISARMED THE BOURGEOISIE
WILL IT BE ABLE, WITHOUT BETRAYING ITS HISTORIC TASK, TO THROW ALL ARMS
ON THE SCRAP HEAP.  THIS THE PROLETARIAT WILL UNDOUBTEDLY DO.  BUT ONLY
THEN, AND ON NO ACCOUNT SOONER." 

(C)  WHY COMMUNISM, WRITTEN BY OLGIN, AND PUBLISHED FIRST IN 1933, BY
THE WORKERS LIBRARY PUBLISHERS: 

"WE COMMUNISTS SAY THAT THERE IS ONE WAY TO ABOLISH THE CAPITALIST
STATE, AND THAT IS TO SMASH IT BY FORCE.  TO MAKE COMMUNISM POSSIBLE
THE WORKERS MUST TAKE HOLD OF THE STATE MACHINERY OF CAPITALISM AND
DESTROY IT." 

PETITIONER TESTIFIED THAT HE HAD NOT READ THIS BOOK, BUT THAT IT HAD
BEEN WIDELY CIRCULATED BY THE PARTY. 

FN40  SINCE THE DISTRICT COURT DID NOT SPECIFY UPON WHAT EVIDENCE ITS
CONCLUSORY FINDINGS RESTED, IT IS WELL TO MENTION THE REMAINING
DOCUMENTS PUBLISHED BEFORE 1927 WHICH WERE INTRODUCED INTO EVIDENCE AND
EXCERPTS FROM WHICH WERE READ INTO THE RECORD, BUT UPON WHICH THE
GOVERNMENT DOES NOT SPECIFICALLY RELY WITH RESPECT TO THE ISSUE OF
FORCE AND VIOLENCE.  THOSE DOCUMENTS ARE: LENIN, LEFT WING COMMUNISM,
FIRST PUBLISHED IN ENGLISH ABOUT 1920; BUCHARIN AND PREOBRASCHENSKY,
ABC OF COMMUNISM, WRITTEN IN 1919 AND PUBLISHED AROUND 1921 IN THIS
COUNTRY (PETITIONER TESTIFIED THAT THIS WAS NEVER AN ACCEPTED WORK AND
THAT ITS AUTHORS WERE LATER EXPELLED FROM THE INTERNATIONAL);
INTERNATIONAL OF YOUTH, A PERIODICAL PUBLISHED IN 1925; THE 4TH
NATIONAL CONVENTION OF THE WORKERS PARTY OF AMERICA, PUBLISHED IN 1925;
THE SECOND YEAR OF THE WORKERS PARTY IN AMERICA (1924); AND, THE
PROGRAM AND CONSTITUTION OF THE WORKERS PARTY OF AMERICA, CIRCULATED
AROUND 1924.  WITH THE EXCEPTION OF THESE LAST TWO DOCUMENTS, THE
EXCERPTS READ INTO THE RECORD FROM THESE PUBLICATIONS CONTAIN NOTHING
EXCEPTIONAL ON THE ISSUE OF FORCE AND VIOLENCE.  THE EXCERPTS FROM THE
LAST TWO DOCUMENTS STRESS THE NECESSITY FOR PARTY PARTICIPATION IN
ELECTIONS, BUT DECLARE THAT THE PARTY FOSTERS NO ILLUSIONS THAT THE
WORKERS CAN VOTE THEIR WAY TO POWER, THE EXPULSION OF THE SOCIALIST
MEMBERS OF THE NEW YORK ASSEMBLY (SEE CHAFEE, FREE SPEECH IN THE UNITED
STATES (1941), PP. 269-82) BEING CITED AS AN EXAMPLE IN POINT.  THESE
STATEMENTS ARE OPEN TO AN INTERPRETATION OF PREDICTION, NOT ADVOCACY OF
FORCE AND VIOLENCE.  CF. NOTE 48, INFRA. 

FN41  AS CHIEF JUSTICE (THEN MR.)  HUGHES SAID IN OPPOSING THE
EXPULSION OF THE SOCIALIST MEMBERS OF THE NEW YORK ASSEMBLY:  "  ...
IT IS OF THE ESSENCE OF THE INSTITUTIONS OF LIBERTY THAT IT BE
RECOGNIZED THAT GUILT IS PERSONAL AND CANNOT BE ATTRIBUTED TO THE
HOLDING OF OPINION OR TO MERE INTENT IN THE ABSENCE OF OVERT ACTS; ...
"  MEMORIAL OF THE SPECIAL COMMITTEE APPOINTED BY THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK, NEW YORK LEGISLATIVE DOCUMENTS, VOL.
5.  143D SESSION (1920), NO. 30, P. 4. 

FN42  SEE CHAFEE, FREE SPEECH IN THE UNITED STATES (1941), PP. 219
24. 

FN43  SEE NOTE 33, ANTE. 

FN44  SEE BRYCE, THE AMERICAN COMMONWEALTH (1915) VOL. II, P. 334;
III ENCYCLOPEDIA OF THE SOCIAL SCIENCES, P. 164. 

FN45  SEE NOTES 35 TO 38 INCLUSIVE, ANTE. 

FN46  PETITIONER TESTIFIED THAT HE BELIEVED ITS PRINCIPLES,
PARTICULARLY AS THEY APPLIED TO THE PERIOD AND COUNTRY IN WHICH
WRITTEN.  SEE NOTE 35, ANTE. 

FN47  MARX, AMSTERDAM SPEECH OF 1872; SEE ALSO ENGELS' PREFACE TO THE
FIRST ENGLISH TRANSLATION OF CAPITAL (1886). 

FN48  LENIN'S REMARKS ON ENGLAND HAVE BEEN INTERPRETED AS SIMPLY
PREDICTING, NOT ADVOCATING, THE USE OF VIOLENCE THERE.  SEE THE
INTRODUCTION TO STRACHEY, THE COMING STRUGGLE FOR POWER (1935). 

FN49  SEE NOTE 38, ANTE. 

FN50  STALIN, LENINISM, VOL. I, PP. 282-83.  PUT IN EVIDENCE BY
PETITIONER. 

FN51  LENIN, SELECTED WORKS, VOL. VI.  PUT IN EVIDENCE BY
PETITIONER.  IN THE SAME WORK IS THE FOLLOWING: 

"MARXISM IS AN EXTREMELY PROFOUND AND MANY SIDED DOCTRINE.  IT IS,
THEREFORE, NOT SURPRISING THAT SCRAPS OF QUOTATIONS FROM MARX -
ESPECIALLY WHEN THE QUOTATIONS ARE NOT TO THE POINT - CAN ALWAYS BE
FOUND AMONG THE 'ARGUMENTS' OF THOSE WHO ARE BREAKING WITH MARXISM.  A
MILITARY CONSPIRACY IS BLANQUISM IF IT IS NOT ORGANIZED BY THE PARTY OF
A DEFINITE CLASS; IF ITS ORGANIZERS HAVE NOT RECKONED WITH THE
POLITICAL SITUATION IN GENERAL AND THE INTERNATIONAL SITUATION IN
PARTICULAR; IF THE PARTY IN QUESTION DOES NOT ENJOY THE SYMPATHY OF THE
MAJORITY OF THE PEOPLE, AS PROVED BY DEFINITE FACTS; IF THE DEVELOPMENT
OF EVENTS IN THE REVOLUTION HAS NOT LED TO THE VIRTUAL DISSIPATION OF
THE ILLUSIONS OF COMPROMISE ENTERTAINED BY THE PETTY BOURGEOISIE; IF
THE MAJORITY OF THE ORGANS OF THE REVOLUTIONARY STRUGGLE WHICH ARE
RECOGNIZED TO BE 'AUTHORITATIVE' OR HAVE OTHERWISE ESTABLISHED
THEMSELVES, SUCH AS THE SOVIETS, HAVE NOT BEEN WON OVER; IF IN THE ARMY
(IN TIME OF WAR) SENTIMENTS HOSTILE TO A GOVERNMENT WHICH DRAGS OUT AN
UNJUST WAR AGAINST THE WILL OF THE PEOPLE HAVE NOT BECOME FULLY
MATURED; IF THE SLOGANS OF THE INSURRECTION (SUCH AS 'ALL POWER TO THE
SOVIETS,' 'LAND TO THE PEASANTS,' 'IMMEDIATE PROPOSAL OF A DEMOCRATIC
PEACE TO ALL THE BELLIGERENT PEOPLES, COUPLED WITH THE IMMEDIATE
ABROGATION OF ALL SECRET TREATIES AND SECRET DIPLOMACY,' ETC.) HAVE NOT
ACQUIRED THE WIDEST RENOWN AND POPULARITY; IF THE ADVANCED WORKERS ARE
NOT CONVINCED OF THE DESPERATE SITUATION OF THE MASSES AND OF THE
SUPPORT OF THE COUNTRYSIDE, AS DEMONSTRATED BY AN ENERGETIC PEASANT
MOVEMENT, OR BY A REVOLT AGAINST THE LANDLORDS AND AGAINST THE
GOVERNMENT THAT DEFENDS THE LANDLORDS; IF THE ECONOMIC SITUATION IN THE
COUNTRY OFFERS ANY REAL HOPE OF A FAVORABLE SOLUTION OF THE CRISIS BY
PEACEFUL AND PARLIAMENTARY MEANS." 

FN52  ARTICLE X, SEC. 5.  PARTY MEMBERS FOUND TO BE STRIKE-BREAKERS,
DEGENERATES, HABITUAL DRUNKARDS, BETRAYERS OF PARTY CONFIDENCE,
PROVOCATEURS, ADVOCATES OF TERRORISM AND VIOLENCE AS A METHOD OF PARTY
PROCEDURE, OR MEMBERS WHOSE ACTIONS ARE DETRIMENTAL TO THE PARTY AND
THE WORKING CLASS, SHALL BE SUMMARILY DISMISSED FROM POSITIONS OF
RESPONSIBILITY, EXPELLED FROM THE PARTY AND EXPOSED BEFORE THE GENERAL
PUBLIC. 

FN53  IN 1927 NATURALIZATION WAS FORBIDDEN TO SUCH PERSONS BY SEC. 7
OF THE ACT OF 1906, 34 STAT. 598, 8 U.S.C. SEC. 364.  COMPARE SEC. 305
OF THE NATIONALITY ACT OF 1940, 54 STAT. 1141, 8 U.S.C. SEC. 705. 

FN54  THE COMPLAINT DID INCORPORATE BY REFERENCE AN AFFIDAVIT OF
CAUSE, REQUIRED BY 8 U.S.C. SEC. 405, IN WHICH THE AFFIANT AVERRED THAT
PETITIONER'S NATURALIZATION WAS ILLEGALLY AND FRAUDULENTLY OBTAINED, IN
THAT HE DID NOT BEHAVE AS A MAN AND WAS NOT A MAN ATTACHED TO THE
CONSTITUTION BUT WAS A MEMBER OF THE COMMUNIST PARTY WHICH WAS OPPOSED
TO THE GOVERNMENT AND ADVOCATED ITS OVERTHROW BY FORCE AND VIOLENCE,
AND IN THAT:  "AT THE TIME HE TOOK SAID OATH OF ALLEGIANCE, HE DID NOT
IN FACT INTEND TO SUPPORT AND DEFEND THE CONSTITUTION AND LAWS OF THE
UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC, AND BEAR TRUE
FAITH AND ALLEGIANCE TO THE SAME." 

WHILE THIS AFFIDAVIT IS PART OF THE COMPLAINT, WE THINK IT WAS NOT
INTENDED TO BE AN ADDITIONAL CHARGE, BUT WAS INCLUDED ONLY TO SHOW
COMPLIANCE WITH THE STATUTE.  THE ATTACHMENT AVERMENT OF THE AFFIDAVIT
IS ELABORATED AND SET FORTH AS A SPECIFIC CHARGE IN THE COMPLAINT.  THE
FAILURE TO DO LIKEWISE WITH THE AVERMENT OF A FALSE OATH IS PERSUASIVE
THAT THE ISSUE WAS NOT INTENDED TO BE RAISED.  WHEN PETITIONER MOVED
FOR A NON-SUIT AT THE CLOSE OF THE GOVERNMENT'S CASE, THE UNITED STATES
ATTORNEY DID NOT CONTEND, IN STATING WHAT HE CONCEIVED THE ISSUES WERE,
THAT THE QUESTION OF A FALSE OATH WAS AN ISSUE. 

FN55  THIS CONTENTION IS THAT PETITIONER WAS NOT WELL DISPOSED TO THE
GOOD ORDER AND HAPPINESS OF THE UNITED STATES BECAUSE HE BELIEVED IN
AND ADVOCATED GENERAL RESORT TO ILLEGAL ACTION, OTHER THAN FORCE AND
VIOLENCE, AS A MEANS OF ACHIEVING POLITICAL ENDS. 

MR. JUSTICE DOUGLAS, CONCURRING: 

I JOIN IN THE COURT'S OPINION AND AGREE THAT PETITIONER'S WANT OF
ATTACHMENT IN 1927 TO THE PRINCIPLES OF THE CONSTITUTION HAS NOT BEEN
SHOWN BY "CLEAR, UNEQUIVOCAL AND CONVINCING" EVIDENCE.  THE UNITED
STATES, WHEN IT SEEKS TO DEPRIVE A PERSON OF HIS AMERICAN CITIZENSHIP,
CARRIES A HEAVY BURDEN OF SHOWING THAT HE PROCURED IT UNLAWFULLY.  THAT
BURDEN HAS NOT BEEN SUSTAINED ON THE PRESENT RECORD, AS THE OPINION OF
THE COURT MAKES PLAIN, UNLESS THE MOST EXTREME VIEWS WITHIN
PETITIONER'S PARTY ARE TO BE IMPUTED OR ATTRIBUTED TO HIM AND UNLESS
ALL DOUBTS WHICH MAY EXIST CONCERNING HIS BELIEFS IN 1927 ARE TO BE
RESOLVED AGAINST HIM RATHER THAN IN HIS FAVOR.  BUT THERE IS ANOTHER
VIEW OF THE PROBLEM RAISED BY THIS TYPE OF CASE WHICH IS SO BASIC AS TO
MERIT SEPARATE STATEMENT. 

SEC. 15 OF THE NATURALIZATION ACT GIVES THE UNITED STATES THE POWER
AND DUTY TO INSTITUTE ACTIONS TO SET ASIDE AND CANCEL CERTIFICATES OF
CITIZENSHIP ON THE GROUND OF "FRAUD" OR ON THE GROUND THAT THEY WERE
"ILLEGALLY PROCURED."  SEC. 15 "MAKES NOTHING FRAUDULENT OR UNLAWFUL
THAT WAS HONEST AND LAWFUL WHEN IT WAS DONE.  IT IMPOSES NO NEW PENALTY
UPON THE WRONGDOER.  BUT IF, AFTER FAIR HEARING, IT IS JUDICIALLY
DETERMINED THAT BY WRONGFUL CONDUCT HE HAS OBTAINED A TITLE TO
CITIZENSHIP, THE ACT PROVIDES THAT HE SHALL BE DEPRIVED OF A PRIVILEGE
THAT WAS NEVER RIGHTFULLY HIS."  JOHANNESSEN V. UNITED STATES, 225 U.S.
227, 242-243.  AND SEE LURIA V. UNITED STATES, 231 U.S. 9, 24. 
"WRONGFUL CONDUCT" - LIKE THE STATUTORY WORDS "FRAUD" OR "ILLEGALLY
PROCURED" - ARE STRONG WORDS.  FRAUD CONNOTES PERJURY, CONCEALMENT,
FALSIFICATION, MISREPRESENTATION OR THE LIKE.  BUT A CERTIFICATE IS
ILLEGALLY, AS DISTINGUISHED FROM FRAUDULENTLY, PROCURED WHEN IT IS
OBTAINED WITHOUT COMPLIANCE WITH A "CONDITION PRECEDENT TO THE
AUTHORITY OF THE COURT TO GRANT A PETITION FOR NATURALIZATION."  MANEY
V. UNITED STATES, 278 U.S. 17, 22. 

UNDER THE ACT IN QUESTION, AS UNDER EARLIER AND LATER ACTS,  FN1
CONGRESS PRESCRIBED NUMEROUS CONDITIONS PRECEDENT TO THE ISSUANCE OF A
CERTIFICATE.  THEY INCLUDED THE REQUIREMENT THAT THE APPLICANT NOT BE
AN ANARCHIST OR POLYGAMIST (SEC. 7), THE PRESENTATION OF A CERTIFICATE
OF ARRIVAL (UNITED STATES V. NESS, 245 U.S. 319), THE REQUIREMENT THAT
THE FINAL HEARING BE HAD IN OPEN COURT (UNITED STATES V. GINSBERG, 243
U.S. 472), THE RESIDENCE REQUIREMENT (R.S. SEC. 2170), THE GENERAL
REQUIREMENT THAT THE APPLICANT BE ABLE TO SPEAK THE ENGLISH LANGUAGE
(SEC. 8), ETC.  THE FOREGOING ARE ILLUSTRATIVE OF ONE TYPE OF CONDITION
WHICH CONGRESS SPECIFIED.  ANOTHER TYPE IS ILLUSTRATED BY THE REQUIRED
FINDING OF ATTACHMENT.  SEC. 4, AS IT THEN READ, STATED THAT IT "SHALL
BE MADE TO APPEAR TO THE SATISFACTION OF THE COURT" THAT THE APPLICANT
"HAS BEHAVED AS A MAN OF GOOD MORAL CHARACTER, ATTACHED TO THE
PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES, AND WELL DISPOSED
TO THE GOOD ORDER AND HAPPINESS OF THE SAME."  FN2  IT IS MY VIEW THAT
CONGRESS BY THAT PROVISION MADE THE FINDING THE CONDITION PRECEDENT,
NOT THE WEIGHT OF THE EVIDENCE UNDERLYING THE FINDING.  SUCH A FINDING
CAN OF COURSE BE SET ASIDE UNDER SEC. 15 ON GROUNDS OF FRAUD.  BUT SO
FAR AS CERTIFICATES "ILLEGALLY PROCURED" ARE CONCERNED, THIS COURT HAS
HERETOFORE PERMITTED SEC. 15 TO BE USED MERELY TO ENFORCE THE EXPRESS
CONDITIONS SPECIFIED IN THE ACT.  IT IS OF COURSE TRUE THAT AN
APPLICANT FOR CITIZENSHIP WAS REQUIRED TO COME FORWARD AND MAKE THE
SHOWING NECESSARY FOR THE REQUIRED FINDINGS.  SEC. 4.  BUT UNDER THIS
EARLIER ACT, IT WAS NOT THAT SHOWING BUT THE FINDING OF THE COURT WHICH
CONGRESS EXPRESSED IN THE FORM OF A CONDITION.  IF SEC. 15 SHOULD BE
BROADENED BY JUDICIAL CONSTRUCTION TO PERMIT THE FINDINGS OF ATTACHMENT
TO BE SET ASIDE FOR REASONS OTHER THAN FRAUD, THEN THE ISSUE OF
ILLEGALITY WOULD BE MADE TO TURN NOT ON THE JUDGE BEING SATISFIED AS TO
APPLICANT'S ATTACHMENT BUT ON THE EVIDENCE UNDERLYING THAT FINDING. 
SUCH A CONDITION SHOULD NOT BE READILY IMPLIED. 

IF AN ANARCHIST IS NATURALIZED, THE UNITED STATES MAY BRING AN ACTION
UNDER SEC. 15 TO SET ASIDE THE CERTIFICATE ON THE GROUNDS OF
ILLEGALITY.  SINCE CONGRESS BY SEC. 7 OF THE ACT FORBIDS THE
NATURALIZATION OF ANARCHISTS, THE ALIEN ANARCHIST WHO OBTAINS THE
CERTIFICATE HAS PROCURED IT ILLEGALLY WHATEVER THE NATURALIZATION COURT
MIGHT FIND.  THE SAME WOULD BE TRUE OF COMMUNISTS IF CONGRESS DECLARED
THEY SHOULD BE INELIGIBLE FOR CITIZENSHIP.  THEN PROOF THAT ONE WAS NOT
A COMMUNIST AND DID NOT ADHERE TO THAT PARTY OR ITS BELIEF WOULD BECOME
LIKE THE OTHER EXPRESS CONDITIONS IN THE ACT A SO-CALLED
"JURISDICTIONAL" FACT "UPON WHICH THE GRANT IS PREDICATED." 
JOHANNESSEN V. UNITED STATES, SUPRA, P. 240.  BUT UNDER THIS ACT
CONGRESS DID NOT TREAT COMMUNISTS LIKE ANARCHISTS.  NEITHER THE STATUTE
NOR THE OFFICIAL FORMS USED BY APPLICANTS CALLED FOR AN EXPRESSION BY
PETITIONER OF HIS ATTITUDE ON, OR HIS RELATIONSHIP TO, COMMUNISM, OR
ANY OTHER FOREIGN POLITICAL CREED EXCEPT ANARCHY AND THE LIKE. 

THE FINDINGS OF ATTACHMENT ARE ENTRUSTED TO THE NATURALIZATION COURT
WITH ONLY THE MOST GENERAL STANDARD TO GUIDE IT.  THAT COURT HAS BEFORE
IT, HOWEVER, NOT ONLY THE APPLICANT BUT AT LEAST TWO WITNESSES.  IT
MAKES ITS APPRAISAL OF THE APPLICANT AND IT WEIGHS THE EVIDENCE.  ITS
CONCLUSION MUST OFTEN REST ON IMPONDERABLE FACTORS.  IN THE PRESENT
CASE WE DO NOT KNOW HOW FAR THE NATURALIZATION COURT PROBED INTO
PETITIONER'S POLITICAL BELIEFS AND AFFILIATIONS.  WE DO NOT KNOW WHAT
INQUIRY IT MADE.  ALL WE DO KNOW IS THAT IT WAS SATISFIED THAT
PETITIONER WAS "ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE
UNITED STATES."  BUT WE MUST ASSUME THAT THAT FINDING WHICH UNDERLIES
THE JUDGMENT GRANTING CITIZENSHIP (CF. TUTUN V. UNITED STATES, 270 U.S.
568) WAS SUPPORTED BY EVIDENCE.  WE MUST ASSUME THAT THE EVIDENCE
EMBRACED ALL RELEVANT FACTS SINCE NO CHARGE OF CONCEALMENT OR
MISREPRESENTATION IS NOW MADE BY RESPONDENT.  AND WE MUST ASSUME THAT
THE APPLICANT AND THE JUDGE BOTH ACTED IN UTMOST GOOD FAITH. 

IF THE APPLICANT ANSWERS ALL QUESTIONS REQUIRED OF HIM, IF THERE IS
NO CONCEALMENT OR MISREPRESENTATION, THE FINDINGS OF ATTACHMENT CANNOT
BE SET ASIDE ON THE GROUNDS OF ILLEGALITY IN PROCEEDINGS UNDER SEC.
15.  IT DOES NOT COMPORT WITH ANY ACCEPTED NOTION OF ILLEGALITY TO SAY
THAT IN SPITE OF THE UTMOST GOOD FAITH ON THE PART OF APPLICANT AND
JUDGE AND IN SPITE OF FULL COMPLIANCE WITH THE EXPRESS STATUTORY
CONDITIONS A CERTIFICATE WAS ILLEGALLY PROCURED BECAUSE ANOTHER JUDGE
WOULD APPRAISE THE EVIDENCE DIFFERENTLY.  THAT WOULD MEAN THAT THE
UNITED STATES AT ANY TIME COULD OBTAIN A TRIAL DE NOVO ON THE POLITICAL
FAITH OF THE APPLICANT. 

IT IS HARDLY CONCEIVABLE THAT CONGRESS INTENDED THAT RESULT UNDER
THIS EARLIER ACT EXCEPT FOR THE NARROW GROUP OF POLITICAL CREEDS SUCH
AS ANARCHY FOR WHICH IT SPECIALLY PROVIDED.  CHIEF JUSTICE HUGHES
STATED IN HIS DISSENT IN UNITED STATES V. MACINTOSH, 283 U.S. 605, 635,
THAT THE PHRASE "ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION" IS A
GENERAL ONE "WHICH SHOULD BE CONSTRUED, NOT IN OPPOSITION TO, BUT IN
ACCORD WITH, THE THEORY AND PRACTICE OF OUR GOVERNMENT IN RELATION TO
FREEDOM OF CONSCIENCE."  WE SHOULD BE MINDFUL OF THAT CRITERION IN OUR
CONSTRUCTION OF SEC. 15.  IF FINDINGS OF ATTACHMENT WHICH UNDERLY
CERTIFICATES MAY BE SET ASIDE YEARS LATER ON THE EVIDENCE, THEN THE
CITIZENSHIP OF THOSE WHOSE POLITICAL FAITHS BECOME UNPOPULAR WITH THE
PASSAGE OF TIME BECOMES VULNERABLE.  IT IS ONE THING TO AGREE THAT
CONGRESS COULD TAKE THAT STEP IF IT CHOSE.  SEE TURNER V. WILLIAMS, 194
U.S. 279.  BUT WHERE IT HAS NOT DONE SO IN PLAIN WORDS, WE SHOULD BE
LOATH TO IMPLY THAT CONGRESS SANCTIONED A PROCEDURE WHICH IN ABSENCE OF
FRAUD PERMITTED A MAN'S CITIZENSHIP TO BE ATTACKED YEARS AFTER THE
GRANT BECAUSE OF HIS POLITICAL BELIEFS, SOCIAL PHILOSOPHY, OR ECONOMIC
THEORIES.  WE SHOULD NOT TREAD SO CLOSE TO THE DOMAIN OF FREEDOM OF
CONSCIENCE WITHOUT AN EXPLICIT MANDATE FROM THOSE WHO SPECIFY THE
CONDITIONS ON WHICH CITIZENSHIP IS GRANTED TO OR WITHHELD FROM ALIENS. 
AT LEAST WHEN TWO INTERPRETATIONS OF THE NATURALIZATION ACT ARE
POSSIBLE WE SHOULD CHOOSE THE ONE WHICH IS THE MORE HOSPITABLE TO THAT
IDEAL FOR WHICH AMERICAN CITIZENSHIP ITSELF STANDS. 

CITIZENSHIP CAN BE GRANTED ONLY ON THE BASIS OF THE STATUTORY RIGHT
WHICH CONGRESS HAS CREATED.  TUTUN V. UNITED STATES, SUPRA.  BUT WHERE
IT IS GRANTED AND WHERE ALL THE EXPRESS STATUTORY CONDITIONS PRECEDENT
ARE SATISFIED WE SHOULD ADHERE TO THE VIEW THAT THE JUDGMENT OF
NATURALIZATION IS FINAL AND CONCLUSIVE EXCEPT FOR FRAUD.  SINCE THE
UNITED STATES DOES NOT NOW CONTEND THAT FRAUD VITIATES THIS CERTIFICATE
THE JUDGMENT BELOW MUST BE REVERSED. 

FN1  FOR THE ACT IN ITS PRESENT FORM SEE 8 U.S.C. SEC. 501 ET SEQ. 

FN2  THIS PROVISION WAS RECAST BY THE ACT OF MARCH 2, 1929, 45 STAT.
1513-1514, 8 U.S.C. SEC. 707(A)(3), INTO SUBSTANTIALLY ITS PRESENT
FORM.  FOR THE LEGISLATIVE HISTORY SEE 69 CONG. REC. 841; S. REP. NO.
1504, 70TH CONG., 2D SESS.  THE PROVISION NOW READS:  "NO PERSON,
EXCEPT AS HEREINAFTER PROVIDED IN THIS CHAPTER, SHALL BE NATURALIZED
UNLESS SUCH PETITIONER  ... (3) DURING ALL THE PERIODS REFERRED TO IN
THIS SUBSECTION HAS BEEN AND STILL IS A PERSON OF GOOD MORAL CHARACTER,
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES,
AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE UNITED
STATES." 

MR. JUSTICE RUTLEDGE, CONCURRING: 

I JOIN IN THE COURT'S OPINION.  I ADD WHAT FOLLOWS ONLY TO EMPHASIZE
WHAT I THINK IS AT THE BOTTOM OF THIS CASE. 

IMMEDIATELY WE ARE CONCERNED WITH ONLY ONE MAN, WILLIAM
SCHNEIDERMAN.  ACTUALLY, THOUGH INDIRECTLY, THE DECISION AFFECTS
MILLIONS.  IF, SEVENTEEN YEARS AFTER A FEDERAL COURT ADJUDGED HIM
ENTITLED TO BE A CITIZEN, THAT JUDGMENT CAN BE NULLIFIED AND HE CAN BE
STRIPPED OF THIS MOST PRECIOUS RIGHT, BY NOTHING MORE THAN
REEXAMINATION UPON THE MERITS OF THE VERY FACTS THE JUDGMENT
ESTABLISHED, NO NATURALIZED PERSON'S CITIZENSHIP IS OR CAN BE SECURE. 
IF THIS CAN BE DONE AFTER THAT LENGTH OF TIME, IT CAN BE DONE AFTER
THIRTY OR FIFTY YEARS.  IF IT CAN BE DONE FOR SCHNEIDERMAN, IT CAN BE
DONE FOR THOUSANDS OR TENS OF THOUSANDS OF OTHERS. 

FOR ALL THAT WOULD BE NEEDED WOULD BE TO PRODUCE SOME EVIDENCE FROM
WHICH ANY ONE OF THE FEDERAL DISTRICT JUDGES COULD DRAW A CONCLUSION,
CONCERNING ONE OF THE ULTIMATE FACTS IN ISSUE, OPPOSITE FROM THAT DRAWN
BY THE JUDGE DECREEING ADMISSION.  THE STATUTE DOES NOT IN TERMS
PRESCRIBE "JURISDICTIONAL" FACTS.  FN1  BUT ALL OF THE IMPORTANT ONES
ARE "JURISDICTIONAL," OR HAVE THAT EFFECT, IF BY MERELY DRAWING
CONTRARY CONCLUSION FROM THE SAME, THOUGH CONFLICTING, EVIDENCE AT ANY
LATER TIME A COURT CAN OVERTURN THE JUDGMENT.  AN APPLICANT MIGHT BE
ADMITTED TODAY UPON EVIDENCE SATISFYING THE COURT HE HAD COMPLIED WITH
ALL REQUIREMENTS.  THAT JUDGMENT MIGHT BE AFFIRMED ON APPEAL AND AGAIN
ON CERTIORARI HERE.  YET THE DAY AFTER, OR TEN YEARS LATER, ANY
DISTRICT JUDGE COULD OVERTHROW IT, ON THE SAME EVIDENCE, IF IT WAS
CONFLICTING OR GAVE ROOM FOR CONTRARY INFERENCES, OR ON DIFFERENT
EVIDENCE ALL OF WHICH MIGHT HAVE BEEN PRESENTED TO THE FIRST COURT. 
FN2 

IF THIS IS THE LAW AND THE RIGHT THE NATURALIZED CITIZEN ACQUIRES,
HIS ADMISSION CREATES NOTHING MORE THAN CITIZENSHIP IN ATTENUATED, IF
NOT SUSPENDED, ANIMATION.  HE ACQUIRES BUT PRIMA FACIE STATUS, IF
THAT.  UNTIL THE GOVERNMENT MOVES TO CANCEL HIS CERTIFICATE AND HE
KNOWS THE OUTCOME, HE CANNOT KNOW WHETHER HE IS IN OR OUT.  AND WHEN
THAT IS DONE, NOTHING FORBIDS REPEATING THE HARROWING PROCESS AGAIN AND
AGAIN, UNLESS THE WEARINESS OF THE COURTS SHOULD LEAD THEM FINALLY TO
SPEAK RES JUDICATA. 

NO CITIZEN WITH SUCH A THREAT HANGING OVER HIS HEAD COULD BE FREE. 
IF HE BELONGED TO "OFF-COLOR" ORGANIZATIONS OR HELD TOO RADICAL OR,
PERHAPS, TOO REACTIONARY VIEWS, FOR SOME SEGMENT OF THE JUDICIAL
PALATE, WHEN HIS ADMISSION TOOK PLACE, HE COULD NOT OPEN HIS MOUTH
WITHOUT FEAR HIS WORDS WOULD BE HELD AGAINST HIM.  FOR WHATEVER HE
MIGHT SAY OR WHATEVER ANY SUCH ORGANIZATION MIGHT ADVOCATE COULD BE
HAULED FORTH AT ANY TIME TO SHOW "CONTINUITY" OF BELIEF FROM THE DAY OF
HIS ADMISSION, OR "CONCEALMENT" AT THAT TIME.  SUCH A CITIZEN WOULD NOT
BE ADMITTED TO LIBERTY.  HIS BEST COURSE WOULD BE SILENCE OR
HYPOCRISY.  THIS IS NOT CITIZENSHIP.  NOR IS IT ADJUDICATION. 

IT MAY BE DOUBTED THAT THE FRAMERS OF THE CONSTITUTION INTENDED TO
CREATE TWO CLASSES OF CITIZENS, ONE FREE AND INDEPENDENT, ONE HALTERED
WITH A LIFETIME STRING TIED TO ITS STATUS.  HOWEVER THAT MAY BE, AND
CONCEDING THAT THE POWER TO REVOKE EXISTS AND RIGHTLY SHOULD EXIST TO
SOME EXTENT, THE QUESTION REMAINS WHETHER THE POWER TO ADMIT CAN BE
DELEGATED TO THE COURTS IN SUCH A WAY THAT THEIR DETERMINATION, ONCE
MADE, DETERMINES AND CONCLUDES NOTHING WITH FINALITY. 

IF EVERY FACT IN ISSUE, GOING TO THE RIGHT TO BE A CITIZEN, CAN BE
REEXAMINED, UPON THE SAME OR DIFFERENT PROOF, YEARS OR DECADES LATER;
AND IF THIS CAN BE DONE DE NOVO, AS IF NO JUDGMENT HAD BEEN ENTERED,
WHETHER WITH RESPECT TO THE BURDEN OF PROOF REQUIRED TO REACH A
DIFFERENT DECISION OR OTHERWISE, WHAT DOES THE JUDGMENT DETERMINE? 
WHAT DOES IT SETTLE WITH FINALITY?  IF REVIEW IS HAD AND THE ADMISSION
IS AFFIRMED, WHAT FACT IS ADJUDICATED, IF NEXT DAY ANY OR ALL INVOLVED
CAN BE REDECIDED TO THE CONTRARY?  CAN CONGRESS, WHEN IT HAS EMPOWERED
A COURT TO DETERMINE AND OTHERS TO REVIEW AND CONFIRM, AT THE SAME TIME
OR LATER AUTHORIZE ANY TRIAL COURT TO OVERTURN THEIR DECREES, FOR
CAUSES OTHER THAN SUCH AS HAVE BEEN HELD SUFFICIENT TO OVERTURN OTHER
DECREES?  FN3 

I DO NOT UNDERTAKE NOW TO DECIDE THESE QUESTIONS.  NOR DOES THE
COURT.  BUT THEY HAVE A BEARING ON THE ONE WHICH IS DECIDED.  IT IS A
JUDGMENT WHICH IS BEING ATTACKED.  TUTUN V. UNITED STATES, 270 U.S.
568.  ACCORDINGLY, IT WILL NOT DO TO SAY THE ISSUE IS IDENTICAL WITH
WHAT IS PRESENTED IN A NATURALIZATION PROCEEDING, IS MERELY ONE OF
FACT, UPON WHICH THEREFORE THE FINDING OF THE TRIAL COURT CONCLUDES,
AND CONSEQUENTLY WE HAVE NO BUSINESS TO SPEAK OR OUR SPEAKING IS
APPELLATE INTERMEDDLING.  THAT IGNORES THE VITAL FACT THAT IT IS A
JUDGMENT, RENDERED IN THE EXERCISE OF THE JUDICAL POWER CREATED BY
ARTICLE III, WHICH IT IS SOUGHT TO OVERTHROW,  FN4  NOT MERELY A GRANT
LIKE A PATENT TO LAND OR FOR INVENTION.  FN5  CONGRESS HAS PLENARY
POWER OVER NATURALIZATION.  THAT NO ONE DISPUTES.  NOR THAT THIS POWER,
FOR ITS APPLICATION, CAN BE DELEGATED TO THE COURTS.  BUT THIS IS NOT
TO SAY, WHEN CONGRESS HAS SO PLACED IT, THAT BODY CAN DECREE IN THE
SAME BREATH THAT THE JUDGMENT RENDERED SHALL HAVE NO CONCLUSIVE
EFFECT.  LIMITS IT MAY PLACE.  BUT THAT IS ANOTHER MATTER FROM MAKING
AN ADJUDICATION UNDER ARTICLE III MERELY AN ADVISORY OPINION OR PRIMA
FACIE EVIDENCE OF THE FACT OR ALL THE FACTS DETERMINED.  CONGRESS HAS,
WITH LIMITED EXCEPTIONS, PLENARY POWER OVER THE JURISDICTION OF THE
FEDERAL COURTS.  FN6  BUT TO CONFER THE JURISDICTION AND AT THE SAME
TIME NULLIFY ENTIRELY THE EFFECTS OF ITS EXERCISE ARE NOT MATTERS
HERETOFORE THOUGHT, WHEN SQUARELY FACED, WITHIN ITS AUTHORITY.  FN7  TO
SAY THEREFORE THAT THE TRIAL COURT'S FUNCTION IN THIS CASE IS THE SAME
AS WAS THAT OF THE ADMITTING COURT IS TO IGNORE THE VAST DIFFERENCE
BETWEEN OVERTURNING A JUDGMENT, WITH ITS ADJUDICATED FACTS, AND
DECIDING INITIALLY UPON FACTS WHICH HAVE NOT BEEN ADJUDGED.  THE
ARGUMENT MADE FROM THE DEPORTATION STATUTES LIKEWISE IGNORES THIS
DIFFERENCE. 

IT IS NO ANSWER TO SAY THAT CONGRESS PROVIDED FOR THE REDETERMINATION
AS A PART OF THE STATUTE CONFERRING THE RIGHT TO ADMISSION AND
THEREFORE AS A CONDITION OF IT.  FOR THAT TOO IGNORES THE QUESTION
WHETHER CONGRESS CAN SO CONDITION THE JUDGMENT AND IS BUT ANOTHER WAY
OF SAYING THAT A DETERMINATION, MADE BY AN EXERCISE OF JUDICIAL POWER
UNDER ARTICLE III, CAN BE CONDITIONED BY LEGISLATIVE MANDATE SO AS NOT
TO DETERMINE FINALLY ANY ULTIMATE FACT IN ISSUE. 

THE EFFECT OF CANCELLATION IS TO NULLIFY THE JUDGMENT OF ADMISSION. 
IF IT IS A JUDGMENT, AND NO ONE DISPUTES THAT IT IS, THAT QUALITY IN
ITSELF REQUIRES THE BURDEN OF PROOF THE COURT HAS HELD THAT CONGRESS
INTENDED IN ORDER TO OVERTURN IT.  THAT IT IS A JUDGMENT, AND ONE OF AT
LEAST A COORDINATE COURT, WHICH THE CANCELLATION PROCEEDING ATTACKS AND
SEEKS TO OVERTHROW, REQUIRES THIS MUCH AT LEAST, THAT SOLEMN DECREES
MAY NOT BE LIGHTLY OVERTURNED AND THAT CITIZENS MAY NOT BE DEPRIVED OF
THEIR STATUS MERELY BECAUSE ONE JUDGE VIEWS THEIR POLITICAL AND OTHER
BELIEFS WITH A MORE CRITICAL EYE OR A DIFFERENT SLANT, HOWEVER HONESTLY
AND SINCERELY, THAN ANOTHER.  BEYOND THIS WE NEED NOT GO NOW IN
DECISION.  BUT WE DO NOT GO BEYOND OUR FUNCTION OR USURP ANOTHER
TRIBUNAL'S WHEN WE GO THIS FAR.  THE DANGER, IMPLICIT IN FINDING TOO
EASILY THE PURPOSE OF CONGRESS TO DENATURALIZE COMMUNISTS, IS THAT BY
DOING SO THE STATUS OF ALL OR MANY OTHER NATURALIZED CITIZENS MAY BE
PUT IN JEOPARDY.  THE OTHER AND UNDERLYING QUESTIONS NEED NOT BE
DETERMINED UNLESS OR UNTIL NECESSITY COMPELS IT. 

FN1  CF., HOWEVER, THE CONCURRING OPINION OF MR. JUSTICE DOUGLAS,
ANTE, P. 161. 

FN2  THERE IS NO REQUIREMENT THAT THE EVIDENCE BE DIFFERENT FROM WHAT
WAS PRESENTED ON ADMISSION OR "NEWLY DISCOVERED." 

FN3  CF. UNITED STATES V. THROCKMORTON, 98 U.S. 61; KIBBE V. BENSON,
17 WALL.  624.  NO SUCH CAUSE FOR CANCELLATION IS INVOLVED HERE. 

FN4  TUTUN V. UNITED STATES, 270 U.S. 568. 

FN5 CF. JOHANNESSEN V. UNITED STATES, 225 U.S. 227. 

FN6  CF. LOCKERTY V. PHILLIPS, 319 U.S. 182. 

FN7  CF. UNITED STATES V. FERREIRA, 13 HOW.  40; GORDON V. UNITED
STATES, 2 WALL.  561; ID., 117 U.S. 697; UNITED STATES V. JONES, 119
U.S. 477; POCONO PINES ASSEMBLY HOTELS CO. V. UNITED STATES, 73 CT.
CLS. 447; 76 CT. CLS. 334; EX PARTE POCONO PINES ASSEMBLY HOTELS CO.,
285 U.S. 526. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

THE TWO COURTS BELOW HAVE FOUND THAT PETITIONER, AT THE TIME HE WAS
NATURALIZED, BELONGED TO COMMUNIST PARTY ORGANIZATIONS WHICH WERE
OPPOSED TO THE PRINCIPLES OF THE CONSTITUTION, AND WHICH ADVISED,
ADVOCATED AND TAUGHT THE OVERTHROW OF THE GOVERNMENT BY FORCE AND
VIOLENCE.  THEY HAVE FOUND THAT PETITIONER BELIEVED IN AND SUPPORTED
THE PRINCIPLES OF THOSE ORGANIZATIONS.  THEY HAVE FOUND ALSO THAT
PETITIONER "WAS NOT, AT THE TIME OF HIS NATURALIZATION  ...  , AND
DURING THE PERIOD OF FIVE YEARS IMMEDIATELY PRECEDING THE FILING OF HIS
PETITION FOR NATURALIZATION HAD NOT BEHAVED AS, A PERSON ATTACHED TO
THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES AND WELL
DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE SAME." 

I THINK THESE FINDINGS ARE ABUNDANTLY SUPPORTED BY THE EVIDENCE, AND
HENCE THAT IT IS NOT WITHIN OUR JUDICIAL COMPETENCE TO SET THEM ASIDE -
EVEN THOUGH, SITTING AS TRIAL JUDGES, WE MIGHT HAVE MADE SOME OTHER
FINDING.  THE JUDGMENT BELOW, CANCELLING PETITIONER'S CITIZENSHIP ON
THE GROUND THAT IT WAS ILLEGALLY OBTAINED, SHOULD THEREFORE BE
AFFIRMED.  THE FINALITY WHICH ATTACHES TO THE TRIAL COURT'S
DETERMINATIONS OF FACT FROM EVIDENCE HEARD IN OPEN COURT, AND WHICH
ORDINARILY SAVES THEM FROM AN APPELLATE COURT'S INTERMEDDLING, SHOULD
NOT BE REMEMBERED IN EVERY CASE SAVE THIS ONE ALONE. 

IT IS IMPORTANT TO EMPHASIZE THAT THE QUESTION FOR DECISION IS MUCH
SIMPLER THAN IT HAS BEEN MADE TO APPEAR.  IT IS WHETHER PETITIONER, IN
SECURING HIS CITIZENSHIP BY NATURALIZATION, HAS FULFILLED A CONDITION
WHICH CONGRESS HAS IMPOSED ON EVERY APPLICANT FOR NATURALIZATION - THAT
DURING THE FIVE YEARS PRECEDING HIS APPLICATION "HE HAS BEHAVED AS A
MAN  ...  ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED
STATES, AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE
SAME."  FN1  DECISION WHETHER HE WAS LAWFULLY ENTITLED TO THE
CITIZENSHIP WHICH HE PROCURED, AND CONSEQUENTLY WHETHER HE IS NOW
ENTITLED TO RETAIN IT, MUST TURN ON THE EXISTENCE OF HIS ATTACHMENT TO
THE PRINCIPLES OF THE CONSTITUTION WHEN HE APPLIED FOR CITIZENSHIP, AND
THAT MUST BE INFERRED BY THE TRIER OF FACT FROM HIS CONDUCT DURING THE
FIVE-YEAR PERIOD.  WE MUST DECIDE NOT WHETHER THE DISTRICT COURT WAS
COMPELLED TO FIND WANT OF ATTACHMENT, BUT WHETHER THE RECORD WARRANTS
SUCH A FINDING. 

THE QUESTION THEN IS NOT OF PETITIONER'S OPINIONS OR BELIEFS - SAVE
AS THEY MAY HAVE INFLUENCED OR MAY EXPLAIN HIS CONDUCT SHOWING
ATTACHMENT, OR WANT OF IT, TO THE PRINCIPLES OF THE CONSTITUTION.  IT
IS NOT A QUESTION OF FREEDOM OF THOUGHT, OF SPEECH OR OF OPINION, OR OF
PRESENT IMMINENT DANGER TO THE UNITED STATES FROM OUR ACCEPTANCE AS
CITIZENS OF THOSE WHO ARE NOT ATTACHED TO THE PRINCIPLES OF OUR FORM OF
GOVERNMENT.  THE CASE OBVIOUSLY HAS NOTHING TO DO WITH OUR RELATIONS
WITH RUSSIA, WHERE PETITIONER WAS BORN, OR WITH OUR PAST OR PRESENT
VIEWS OF THE RUSSIAN POLITICAL OR SOCIAL SYSTEM.  THE UNITED STATES HAS
THE SAME INTEREST AS OTHER NATIONS IN DEMANDING OF THOSE WHO SEEK ITS
CITIZENSHIP SOME MEASURE OF ATTACHMENT TO ITS INSTITUTIONS.  OUR
CONCERN IS ONLY THAT THE DECLARED WILL OF CONGRESS SHALL PREVAIL - THAT
NO MAN SHALL BECOME A CITIZEN OR RETAIN HIS CITIZENSHIP WHOSE BEHAVIOR
FOR FIVE YEARS BEFORE HIS APPLICATION DOES NOT SHOW ATTACHMENT TO THE
PRINCIPLES OF THE CONSTITUTION. 

THE CONSTITUTION HAS CONFERRED ON CONGRESS THE EXCLUSIVE AUTHORITY TO
PRESCRIBE UNIFORM RULES GOVERNING NATURALIZATION.  ARTICLE I, SEC. 8,
CL. 4.  CONGRESS HAS EXERCISED THAT POWER BY PRESCRIBING THE
CONDITIONS, IN CONFORMITY TO WHICH ALIENS MAY OBTAIN THE PRIVILEGE OF
CITIZENSHIP.  UNDER THE LAWS AND CONSTITUTION OF THE UNITED STATES, NO
PERSON IS GIVEN ANY RIGHT TO DEMAND CITIZENSHIP, SAVE UPON COMPLIANCE
WITH THOSE CONDITIONS.  "AN ALIEN WHO SEEKS POLITICAL RIGHTS AS A
MEMBER OF THIS NATION CAN RIGHTFULLY OBTAIN THEM ONLY UPON TERMS AND
CONDITIONS SPECIFIED BY CONGRESS.  COURTS ARE WITHOUT AUTHORITY TO
SANCTION CHANGES OR MODIFICATIONS; THEIR DUTY IS RIGIDLY TO ENFORCE THE
LEGISLATIVE WILL IN RESPECT OF A MATTER SO VITAL TO THE PUBLIC
WELFARE."  UNITED STATES V. GINSBERG, 243 U.S. 472, 474.  AND WHENEVER
A PERSON'S RIGHT TO CITIZENSHIP IS DRAWN IN QUESTION, IT IS THE JUDGE'S
DUTY LOYALLY TO SEE TO IT THAT THOSE CONDITIONS HAVE NOT BEEN
DISREGARDED. 

THE PRESENT SUIT BY THE UNITED STATES, TO CANCEL PETITIONER'S
PREVIOUSLY GRANTED CERTIFICATE OF CITIZENSHIP, WAS BROUGHT PURSUANT TO
AN ACT OF CONGRESS (SEC. 15 OF THE ACT OF JUNE 29, 1906, 34 STAT. 601),
ENACTED LONG PRIOR TO PETITIONER'S NATURALIZATION.  SECTION 15
AUTHORIZES ANY COURT BY A SUIT INSTITUTED BY THE UNITED STATES ATTORNEY
TO SET ASIDE A CERTIFICATE OF NATURALIZATION "ON THE GROUND OF FRAUD OR
ON THE GROUND THAT SUCH CERTIFICATE OF CITIZENSHIP WAS ILLEGALLY
PROCURED."  UNTIL NOW THIS COURT, WITHOUT A DISSENTING VOICE, HAS MANY
TIMES HELD THAT IN A SUIT UNDER THIS STATUTE IT IS THE DUTY OF THE
COURT TO RENDER A JUDGMENT CANCELLING THE CERTIFICATE OF NATURALIZATION
IF THE COURT FINDS UPON EVIDENCE THAT THE APPLICANT DID NOT SATISFY THE
CONDITIONS WHICH CONGRESS HAD MADE PREREQUISITE TO THE AWARD OF
CITIZENSHIP.  JOHANNESSEN V. UNITED STATES, 225 U.S. 227; LURIA V.
UNITED STATES, 231 U.S. 9; MAIBAUM V. UNITED STATES, 232 U.S. 714;
UNITED STATES V. GINSBERG, 243 U.S. 472; UNITED STATES V. NESS, 245
U.S. 319; MANEY V. UNITED STATES, 278 U.S. 17, 23; SCHWINN V. UNITED
STATES, 311 U.S. 616. 

PROVISION FOR SUCH A REVIEW OF THE JUDGMENT AWARDING CITIZENSHIP IS
WITHIN THE LEGISLATIVE POWER OF CONGRESS AND PLAINLY IS SUBJECT TO NO
CONSTITUTIONAL INFIRMITY, JOHANNESSEN V. UNITED STATES, SUPRA, 236-40,
ESPECIALLY WHERE, AS HERE, THE STATUTE ANTEDATED PETITIONER'S
CITIZENSHIP AND THE REVIEW WAS THUS A CONDITION OF ITS AWARD.  LURIA V.
UNITED STATES, SUPRA, 24.  OUR DECISIONS HAVE UNIFORMLY RECOGNIZED THAT
CONGRESS, WHICH HAS POWER TO DENY CITIZENSHIP TO ALIENS ALTOGETHER, MAY
SAFEGUARD THE GRANT OF THIS PRIVILEGE, PRECIOUS TO THE INDIVIDUAL AND
VITAL TO THE COUNTRY'S WELFARE, BY SUCH PROCEDURE FOR DETERMINING THE
EXISTENCE OF INDISPENSABLE REQUISITES TO CITIZENSHIP AS HAS BEEN
ESTABLISHED IN SEC. 15.  "NO ALIEN HAS THE SLIGHTEST RIGHT TO
NATURALIZATION UNLESS ALL STATUTORY REQUIREMENTS ARE COMPLIED WITH; AND
EVERY CERTIFICATE OF CITIZENSHIP MUST BE TREATED AS GRANTED UPON
CONDITION THAT THE GOVERNMENT MAY CHALLENGE IT AS PROVIDED IN SEC. 15
AND DEMAND ITS CANCELLATION UNLESS ISSUED IN ACCORDANCE WITH SUCH
REQUIREMENTS.  IF PROCURED WHEN PRESCRIBED QUALIFICATIONS HAVE NO
EXISTENCE IN FACT IT IS ILLEGALLY PROCURED; A MANIFEST MISTAKE BY THE
JUDGE CANNOT SUPPLY THESE NOR RENDER THEIR EXISTENCE NON-ESSENTIAL." 
UNITED STATES V. GINSBERG, SUPRA, 475.  SPEAKING FOR A UNANIMOUS COURT,
MR. JUSTICE BRANDEIS THUS STATED WHAT WAS, UNTIL TODAY, THE SETTLED
LAW:  "IF A CERTIFICATE IS PROCURED WHEN THE PRESCRIBED QUALIFICATIONS
HAVE NO EXISTENCE IN FACT, IT MAY BE CANCELLED BY SUIT."  TUTUN V.
UNITED STATES, 270 U.S. 568, 578.  CONGRESS HAS NOT SEEN FIT TO
INTERPOSE ANY STATUTE OF LIMITATIONS.  AND THERE IS NO SUGGESTION THAT
THE GOVERNMENT WAS DERELICT IN NOT BRINGING THE SUIT EARLIER OR THAT
PETITIONER HAS BEEN PREJUDICED BY DELAY.  HENCE THE ISSUE BEFORE US IS
WHETHER PETITIONER, WHEN NATURALIZED, SATISFIED THE STATUTORY
REQUIREMENTS.  IT IS THE SAME ISSUE AS WOULD BE PRESENTED BY AN APPEAL
FROM A JUDGMENT GRANTING OR DENYING NATURALIZATION UPON THE EVIDENCE
HERE PRESENTED, ALTHOUGH IT MAY BE ASSUMED THAT IN THIS PROCEEDING THE
BURDEN OF PROOF RESTS ON THE GOVERNMENT, WHICH HAS BROUGHT THE SUIT, TO
ESTABLISH PETITIONER'S WANT OF QUALIFICATIONS. 

WE NEED NOT STOP TO CONSIDER WHETHER PETITIONER'S FAILURE, IN HIS
NATURALIZATION PROCEEDING, TO DISCLOSE FACTS WHICH COULD HAVE RESULTED
IN A DENIAL OF HIS APPLICATION, CONSTITUTED FRAUD WITHIN THE MEANING OF
THE STATUTE.  FOR PRESENT PURPOSES IT IS ENOUGH THAT THE EVIDENCE
SUPPORTS THE CONCLUSION OF THE COURTS BELOW AS TO PETITIONER'S WANT OF
ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION, AND, THAT SEC. 15
HAS, EVER SINCE ITS ENACTMENT IN 1906, BEEN CONSTRUED BY THIS COURT AS
REQUIRING CERTIFICATES OF CITIZENSHIP TO BE CANCELLED AS ILLEGALLY
PROCURED WHENEVER THE COURT FINDS ON EVIDENCE THAT AT THE TIME OF
NATURALIZATION THE APPLICANT DID NOT IN FACT SATISFY THE STATUTORY
PREREQUISITES. 

TO MEET THE EXIGENCIES OF THIS CASE, IT IS NOW FOR THE FIRST TIME
PROPOSED BY THE CONCURRING OPINION OF MR. JUSTICE DOUGLAS THAT A NEW
CONSTRUCTION BE GIVEN TO THE STATUTE WHICH WOULD PRECLUDE ANY INQUIRY
CONCERNING THE FACT OF PETITIONER'S ATTACHMENT TO THE CONSTITUTION.  IT
IS SAID THAT IN A SEC. 15 PROCEEDING THE ONLY INQUIRY PERMITTED, APART
FROM FRAUD, IS AS TO THE REGULARITY OF THE NATURALIZATION PROCEEDINGS
ON THEIR FACE; THAT - HOWEVER MUCH PETITIONER FELL SHORT OF MEETING THE
STATUTORY REQUIREMENTS FOR CITIZENSHIP - IF HE FILED, AS HE DID, PRO
FORMA AFFIDAVITS OF TWO PERSONS, BARELY STATING THAT HE MET THE
STATUTORY REQUIREMENTS OF RESIDENCE, MORAL CHARACTER AND ATTACHMENT TO
THE CONSTITUTION, AND IF THE COURT ON THE BASIS OF THE AFFIDAVITS MADE
THE REQUISITE FINDINGS AND ORDER, THEN ALL FURTHER INQUIRY IS
FORECLOSED. 

TO THIS EASY PROPOSAL FOR THE EMASCULATION OF THE STATUTE THERE ARE
SEVERAL PLAIN AND OBVIOUS ANSWERS. 

SUIT TO CANCEL THE CERTIFICATE OF NATURALIZATION ON THE GROUND OF FRAUD
OR ON THE GROUND THAT THE CERTIFICATE WAS ILLEGALLY PROCURED.  UNTIL
NOW IT HAS NEVER BEEN THOUGHT THAT A CERTIFICATE OF CITIZENSHIP
PROCURED BY ONE WHO HAS NOT SATISFIED THE STATUTORY CONDITIONS FOR
CITIZENSHIP, IS NEVERTHELESS LAWFULLY PROCURED.  BUT THE CONCURRING
OPINION OF MR. JUSTICE DOUGLAS SUGGESTS THAT, FOR PURPOSES OF SEC. 15,
"ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION" IS NOT A CONDITION
OF BECOMING A CITIZEN.  IT SUGGESTS THAT THE STATUTE IS SATISFIED, EVEN
THOUGH THE APPLICANT WAS NEVER IN FACT ATTACHED TO THE PRINCIPLES OF
THE CONSTITUTION, SO LONG AS SUCH ATTACHMENT WAS MADE TO APPEAR, FROM
PRO FORMA AFFIDAVITS, TO THE SATISFACTION OF THE NATURALIZATION COURT. 
THIS IS SAID TO BE THE CASE REGARDLESS OF WHETHER IN FACT THE
AFFIDAVITS, AND THE CERTIFICATE OF CITIZENSHIP BASED ON THEM, ARE
WHOLLY MISTAKEN, AND DESPITE THE FACT THAT THE NATURALIZATION
PROCEEDING, AS APPARENTLY IT WAS HERE, IS AN EX PARTE PROCEEDING IN
WHICH THE GOVERNMENT IS NOT REPRESENTED. 

IT WOULD SEEM PASSING STRANGE THAT CONGRESS - WHICH AUTHORIZED
CANCELLATION OF CITIZENSHIP UNDER SEC. 15 FOR FAILURE TO HOLD THE
NATURALIZATION HEARING IN OPEN COURT INSTEAD OF IN THE JUDGE'S CHAMBERS
(UNITED STATES V. GINSBERG, SUPRA), OR FOR FAILURE TO PRESENT THE
REQUISITE CERTIFICATE OF ARRIVAL IN THIS COUNTRY (MANEY V. UNITED
STATES, SUPRA) - SHOULD BE THOUGHT LESS CONCERNED WITH THE APPLICANT'S
ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION AND THAT HE BE WELL
DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE UNITED STATES.  FOR
WHAT COULD BE MORE IMPORTANT IN THE SELECTION OF CITIZENS OF THE UNITED
STATES THAN THAT THE PROSPECTIVE CITIZEN BE ATTACHED TO THE PRINCIPLES
OF THE CONSTITUTION? 

MOREOVER, IF IN THE ABSENCE OF FRAUD THE FINDING OF THE
NATURALIZATION COURT IN THIS CASE IS FINAL AND HENCE BEYOND THE REACH
OF A SEC. 15 PROCEEDING, IT WOULD BE EQUALLY FINAL IN THE CASE OF A
FINDING, CONTRARY TO THE ACTUAL FACT, THAT THE APPLICANT HAD BEEN FOR
FIVE YEARS A CONTINUOUS RESIDENT IN THE UNITED STATES, SINCE THAT
REQUIREMENT TOO IS SET FORTH IN THE SENTENCE OF SEC. 4 WHICH PROVIDES
THAT "IT SHALL BE MADE TO APPEAR TO THE SATISFACTION OF THE COURT." 
YET IT IS SETTLED THAT A CERTIFICATE OF CITIZENSHIP BASED ON A MISTAKEN
FINDING OF FIVE YEARS RESIDENCE IS SUBJECT TO REVOCATION.  UNITED
STATES V. GINSBERG, SUPRA.  AND IN SCHWINN V. UNITED STATES, SUPRA, IT
APPEARED, FROM EXTRINSIC EVIDENCE FIRST OFFERED IN A SEC. 15
PROCEEDING, THAT THE WITNESSES AT THE NATURALIZATION HEARING HAD BEEN
MISTAKEN AS TO THE LENGTH OF TIME THEY HAD KNOWN THE APPLICANT, AND
THAT FOR A PART OF THE FIVE-YEAR PERIOD NO WITNESS HAD BEEN PRODUCED
WITH ACTUAL KNOWLEDGE OF THE APPLICANT'S RESIDENCE OR QUALIFICATIONS. 
WE HELD, WITHOUT DISSENT, 311 U.S. 616, "THAT THE CERTIFICATE OF
CITIZENSHIP WAS ILLEGALLY PROCURED," AND FOR THAT REASON WE AFFIRMED A
JUDGMENT CANCELLING IT.  FN2  IF WE ARE TO GIVE EFFECT TO THE LANGUAGE
AND PURPOSE OF CONGRESS, IT WOULD SEEM THAT WE MUST REACH THE SAME
RESULT IN THE CASE OF THE NATURALIZATION COURT'S MISTAKEN OR
UNWARRANTED FINDING OF ATTACHMENT TO THE PRINCIPLES OF THE
CONSTITUTION, EVEN THOUGH THE CONDUCT OF THE APPLICANT AND HIS
WITNESSES AT THE NATURALIZATION HEARING FELL SHORT OF PERJURY. 

THE PURPOSE OF SEC. 15 - LIKE THAT OF SEC. 11, WHICH AUTHORIZES THE
GOVERNMENT TO APPEAR IN A NATURALIZATION PROCEEDING TO CONTEST THE
APPLICATION - IS NOT MERELY TO INSURE THE FORMAL REGULARITY OF THE
PROCEEDING, BUT TO PROTECT THE UNITED STATES FROM THE INJURY WHICH
WOULD RESULT FROM THE ACCEPTANCE AS CITIZENS OF ANY WHO ARE NOT
LAWFULLY ENTITLED TO BECOME CITIZENS.  CONGRESS LEFT THE NATURALIZATION
PROCEEDING SIMPLE AND INEXPENSIVE, BY PERMITTING IT ORDINARILY TO BE
CONDUCTED EX PARTE.  THUS APPROXIMATELY 200,000 CERTIFICATES OF
NATURALIZATION WERE ISSUED DURING THE YEAR IN WHICH PETITIONER BECAME A
CITIZEN.  ANNUAL REPORT OF THE SECRETARY OF LABOR, 1940, P. 115.  BUT
BY SEC. 15 CONGRESS AFFORDED THE GOVERNMENT AN INDEPENDENT OPPORTUNITY
TO INQUIRE INTO ANY NATURALIZATION IF UPON LATER SCRUTINY IT APPEARED
THAT THE CERTIFICATE OF CITIZENSHIP HAD NOT BEEN LAWFULLY PROCURED.  AS
THE COURT DECLARED IN UNITED STATES V. NESS, SUPRA, 327, "SEC.  11 AND
SEC. 15 WERE DESIGNED TO AFFORD CUMULATIVE PROTECTION AGAINST
FRAUDULENT OR ILLEGAL NATURALIZATION."  ALL THIS WAS MADE ABUNDANTLY
CLEAR BY DECISIONS OF THIS COURT MORE THAN TWENTY-FIVE YEARS AGO.  SEE
JOHANNESSEN V. UNITED STATES, SUPRA; LURIA V. UNITED STATES, SUPRA;
UNITED STATES V. GINSBERG, SUPRA; UNITED STATES V. NESS, SUPRA, 325
27.  IN THE INTERVENING YEARS CONGRESS HAS OFTEN REVISED THE
NATURALIZATION LAWS, BUT IT HAS NOT THOUGHT IT APPROPRIATE TO MODIFY
THIS COURT'S INTERPRETATION OF THE FUNCTION OF SEC. 15 IN THE
NATURALIZATION PROCEDURE. 

THIS IS PERSUASIVE THAT THE INTERPRETATION OF SEC. 15 NOW PROPOSED
DEFIES THE PURPOSE AND WILL OF CONGRESS.  IT IS INCONCEIVABLE THAT
CONGRESS SHOULD HAVE INTENDED THAT A NATURALIZED CITIZEN'S ATTACHMENT
TO THE PRINCIPLES OF THE CONSTITUTION - THE MOST FUNDAMENTAL
REQUIREMENT FOR CITIZENSHIP - SHOULD BE THE ONE ISSUE WHICH, IN THE
ABSENCE OF FRAUD, THE GOVERNMENT IS FORECLOSED FROM EXAMINING.  TO
LIMIT THE GOVERNMENT TO PROOF OF FRAUD IN SUCH CASES IS TO READ
"ILLEGALITY" OUT OF THE STATUTE IN EVERY INSTANCE WHERE AN ALIEN
DEMONSTRABLY NOT ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION HAS
PROCURED A CERTIFICATE OF CITIZENSHIP.  EVEN IF WE WERE TO RECAST AN
ACT OF CONGRESS IN ACCORDANCE WITH OUR OWN NOTIONS OF POLICY, IT WOULD
BE DIFFICULT TO DISCOVER ANY CONSIDERATIONS WARRANTING THE ADOPTION OF
A DEVICE WHOSE ONLY EFFECT WOULD BE TO MAKE CERTAIN THAT PERSONS NEVER
ENTITLED TO THE BENEFITS OF CITIZENSHIP COULD SECURE AND RETAIN THEM. 
THAT COULD NOT HAVE BEEN THE OBJECT OF CONGRESS IN ENACTING SEC. 15. 

AS WE ARE NOT HERE CONSIDERING WHETHER PETITIONER'S CERTIFICATE OF
NATURALIZATION WAS PROCURED BY FRAUD, THERE IS NO OCCASION, AND INDEED
NO JUSTIFICATION, FOR IMPORTING INTO THIS CASE THE RULE, DERIVED FROM
LAND FRAUD CASES, THAT FRAUD, WHICH INVOLVES PERSONAL MORAL OBLIQUITY,
MUST BE PROVED BY CLEAR AND CONVINCING EVIDENCE.  THE ISSUE IS NOT
WHETHER PETITIONER COMMITTED A CRIME BUT WHETHER HE SHOULD BE PERMITTED
TO ENJOY CITIZENSHIP WHEN HE HAS NEVER SATISFIED THE BASIC CONDITIONS
WHICH CONGRESS REQUIRED FOR THE GRANT OF THAT PRIVILEGE.  WE ARE
CONCERNED ONLY WITH THE QUESTION WHETHER PETITIONER'S QUALIFICATIONS
WERE SO LACKING THAT HE WAS NOT LAWFULLY ENTITLED TO THE PRIVILEGE OF
CITIZENSHIP WHICH HE HAS PROCURED.  THERE IS NOTHING IN SEC. 15, NOR IN
ANY OF OUR NUMEROUS DECISIONS UNDER IT, TO SUGGEST THAT SUCH AN ISSUE
IS TO BE TRIED AS FRAUD IS TRIED, OR THAT IT IS NOT TO BE RESOLVED, AS
ARE OTHER CASES, BY THE WEIGHT OF EVIDENCE.  NO PLAUSIBLE REASON HAS
BEEN ADVANCED WHY IT SHOULD NOT BE.  BUT THE POINT NEED NOT BE LABORED,
FOR NO MATTER HOW IT IS DETERMINED IT CAN GIVE NO AID OR COMFORT TO
PETITIONER.  THE EVIDENCE IN THIS CASE TO WHICH I SHALL REFER AND ON
WHICH THE COURTS BELOW WERE ENTITLED TO RELY IS CLEAR, NOT SPECULATIVE;
AND SINCE PETITIONER HIMSELF HAS NOT CHALLENGED IT, THE TRIAL COURT WAS
ENTITLED TO ACCEPT IT AS CONVINCING, WHICH IT EVIDENTLY DID. 

THE STATUTE DOES NOT, AS SEEMS TO BE SUGGESTED, REQUIRE AS A
CONDITION OF CITIZENSHIP THAT A MAN MERELY BE CAPABLE OF ATTACHMENT TO
THE PRINCIPLES OF THE CONSTITUTION - A REQUIREMENT WHICH PRESUMABLY ALL
MANKIND COULD SATISFY.  IT REQUIRES INSTEAD THAT THE APPLICANT BE IN
FACT ATTACHED TO THOSE PRINCIPLES WHEN HE SEEKS NATURALIZATION, AND
SEC. 15 MAKES PROVISION FOR THE GOVERNMENT TO INSTITUTE AN INDEPENDENT
SUIT, SUBSEQUENT TO NATURALIZATION, TO INQUIRE WHETHER THAT CONDITION
WAS THEN IN FACT FULFILLED.  CONGRESS HAS EXHIBITED NO INTEREST IN
PETITIONER'S CAPABILITIES.  NOR DID CONGRESS REQUIRE ONLY THAT IT BE
NOT IMPOSSIBLE FOR PETITIONER TO HAVE AN ATTACHMENT TO THE PRINCIPLES
OF THE CONSTITUTION.  THE ACT SPECIFIES THE FACT OF ATTACHMENT AS THE
TEST, REQUIRING THIS TO BE AFFIRMATIVELY SHOWN BY THE APPLICANT; AND BY
SEC. 15 CONGRESS PROVIDED A MEANS FOR THE UNITED STATES TO ASCERTAIN
THAT FACT BY A JUDICIAL DETERMINATION.    THE PRESCRIBED CONDITIONS FOR
THE AWARD OF CITIZENSHIP BY NATURALIZATION ARE FEW AND READILY
UNDERSTOOD, AND WE MUST ACCEPT THEM AS THE EXPRESSION OF THE
CONGRESSIONAL JUDGMENT THAT ALIENS NOT SATISFYING THOSE REQUIREMENTS
ARE NOT WORTHY TO BE ADMITTED TO THE PRIVILEGE OF CITIZENSHIP. 
CONGRESS HAS DECLARED THAT BEFORE ONE IS ENTITLED TO THAT PRIVILEGE HE
MUST TAKE THE OATH OF ALLEGIANCE "THAT HE WILL SUPPORT AND DEFEND THE
CONSTITUTION AND LAWS OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN
AND DOMESTIC, AND BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME."  ACT OF
JUNE 29, 1906, SEC. 4(THIRD), 34 STAT. 597.  AND AS I HAVE SAID, THE
APPLICANT MUST MAKE IT APPEAR TO THE COURT ADMITTING HIM TO CITIZENSHIP
THAT FOR THE FIVE YEARS PRECEDING THE DATE OF HIS APPLICATION HE HAS
RESIDED CONTINUOUSLY WITHIN THE UNITED STATES AND "THAT DURING THAT
TIME HE HAS BEHAVED AS A MAN OF GOOD MORAL CHARACTER, ATTACHED TO THE
PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES, AND WELL DISPOSED
TO THE GOOD ORDER AND HAPPINESS OF THE SAME." 

MOREOVER, AT THE TIME OF PETITIONER'S NATURALIZATION, THE STATUTES OF
THE UNITED STATES EXCLUDED FROM ADMISSION INTO THIS COUNTRY "ALIENS WHO
BELIEVE IN, ADVISE, ADVOCATE, OR TEACH, OR WHO ARE MEMBERS OF OR
AFFILIATED WITH ANY ORGANIZATION, ASSOCIATION, SOCIETY, OR GROUP, THAT
BELIEVES IN, ADVISES, ADVOCATES, OR TEACHES:  (1) THE OVERTHROW BY
FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES  ...  "  ACT
OF OCTOBER 16, 1918, SEC. 1, 40 STAT. 1012, AS AMENDED BY SUBSECTION
(C) OF THE ACT OF JUNE 5, 1920, 41 STAT. 1008, 1009.  THE STATUTES ALSO
BARRED ADMISSION TO THE UNITED STATES OF "ALIENS WHO  ...  KNOWINGLY
CIRCULATE, DISTRIBUTE, PRINT, OR DISPLAY, OR KNOWINGLY CAUSE TO BE
CIRCULATED, DISTRIBUTED, PRINTED, PUBLISHED, OR DISPLAYED  ...  ANY
WRITTEN OR PRINTED MATTER  ...  ADVISING, ADVOCATING, OR TEACHING:  (1)
THE OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED
STATES  ...  "  IBID., SUBSECTION (D).  AND BY SEC. 2 OF THE ACT OF
OCTOBER 16, 1918, IT WAS PROVIDED THAT ANY ALIEN WHO, AFTER ENTERING
THE UNITED STATES, "IS FOUND  ...  TO HAVE BECOME THEREAFTER, A MEMBER
OF ANY ONE OF THE CLASSES OF ALIENS" JUST ENUMERATED, SHALL BE TAKEN
INTO CUSTODY AND DEPORTED.  SEE KESSLER V. STRECKER, 307 U.S. 22. 
QUITE APART FROM THE WANT OF ATTACHMENT TO THE CONSTITUTION AND THE
CONSEQUENT DISQUALIFICATION OF SUCH ALIENS FOR CITIZENSHIP, THEIR
BELONGING TO ANY OF THESE CLASSES WOULD DISQUALIFY THEM FOR CITIZENSHIP
SINCE THEIR PRESENCE IN THE UNITED STATES, WITHOUT WHICH THEY CANNOT
APPLY FOR CITIZENSHIP, WOULD BE UNLAWFUL.  AND IN THE LIGHT OF THE
EVIDENCE - PRESENTLY TO BE DISCUSSED - EVEN THE COURT'S OPINION
CONCEDES (P. 153) "WE DO NOT SAY THAT A REASONABLE MAN COULD NOT
POSSIBLY HAVE FOUND, AS THE DISTRICT COURT DID, THAT THE COMMUNIST
PARTY IN 1927 ACTIVELY URGED THE OVERTHROW OF THE GOVERNMENT BY FORCE
AND VIOLENCE."  IN ADDITION, THE EVIDENCE MAKES IT CLEAR BEYOND ALL
REASONABLE DOUBT THAT PETITIONER, UP TO THE TIME OF HIS NATURALIZATION,
WAS AN ALIEN WHO KNOWINGLY CIRCULATED OR DISTRIBUTED, OR CAUSED TO BE
CIRCULATED OR DISTRIBUTED, PRINTED MATTER ADVOCATING THE OVERTHROW OF
THE GOVERNMENT BY FORCE OR VIOLENCE. 

WHOLLY APART FROM THE DEPORTATION STATUTE, THE JUDGMENT SHOULD BE
AFFIRMED BECAUSE THE TRIAL COURT WAS JUSTIFIED IN FINDING THAT
PETITIONER, IN 1927, WAS NOT AND HAD NOT BEEN ATTACHED TO THE
PRINCIPLES OF THE CONSTITUTION.  MY BRETHREN OF THE MAJORITY DO NOT
DENY THAT THERE ARE PRINCIPLES OF THE CONSTITUTION.  THE CONGRESS OF
1795, WHICH PASSED THE STATUTE REQUIRING AN APPLICANT FOR
NATURALIZATION TO ESTABLISH THAT HE HAS "BEHAVED AS A MAN  ...
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION" (1 STAT. 414),
EVIDENTLY DID NOT DOUBT THAT THERE WERE.  FOR SOME OF ITS MEMBERS HAD
SAT IN THE CONSTITUTIONAL CONVENTION.  IN THE ABSENCE OF ANY DISCLAIMER
I SHALL ASSUME THAT THERE ARE SUCH PRINCIPLES AND THAT AMONG THEM ARE
AT LEAST THE PRINCIPLE OF CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS AND
OF LIFE, LIBERTY AND PROPERTY, THE PRINCIPLE OF REPRESENTATIVE
GOVERNMENT, AND THE PRINCIPLE THAT CONSTITUTIONAL LAWS ARE NOT TO BE
BROKEN DOWN BY PLANNED DISOBEDIENCE.  I ASSUME ALSO THAT ALL THE
PRINCIPLES OF THE CONSTITUTION ARE HOSTILE TO DICTATORSHIP AND MINORITY
RULE; AND THAT IT IS A PRINCIPLE OF OUR CONSTITUTION THAT CHANGE IN THE
ORGANIZATION OF OUR GOVERNMENT IS TO BE EFFECTED BY THE ORDERLY
PROCEDURES ORDAINED BY THE CONSTITUTION AND NOT BY FORCE OR FRAUD. 
WITH THESE IN MIND, WE MAY EXAMINE PETITIONER'S BEHAVIOR AS DISCLOSED
BY THE RECORD, DURING THE FIVE YEARS WHICH PRECEDED HIS NATURALIZATION,
IN ORDER TO ASCERTAIN WHETHER THERE WAS BASIS IN THE EVIDENCE FOR THE
TRIAL JUDGE'S FINDINGS.  IN DETERMINING WHETHER THERE WAS EVIDENCE
SUPPORTING THE FINDING OF PETITIONER'S WANT OF ATTACHMENT TO
CONSTITUTIONAL PRINCIPLES, COURTS MUST LOOK, AS THE STATUTE ADMONISHES,
TO SEE WHETHER IN THE FIVE-YEAR PERIOD PETITIONER BEHAVED AS A MAN
ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION.  AND WE MUST RECOGNIZE
THAT SUCH ATTACHMENT OR WANT OF IT IS A PERSONAL ATTRIBUTE TO BE
INFERRED FROM ALL THE RELEVANT FACTS AND CIRCUMSTANCES WHICH TEND TO
REVEAL PETITIONER'S ATTITUDE TOWARD THOSE PRINCIPLES. 

PETITIONER, WHO IS AN EDUCATED AND INTELLIGENT MAN, TOOK OUT HIS
FIRST PAPERS IN 1924, WHEN HE WAS EIGHTEEN YEARS OF AGE, AND WAS
ADMITTED TO CITIZENSHIP ON JUNE 10, 1927, WHEN NEARLY TWENTY-TWO. 
SINCE HIS SIXTEENTH YEAR HE HAS BEEN CONTINUOUSLY AND ACTIVELY ENGAGED
IN PROMOTING IN ONE WAY OR ANOTHER THE INTERESTS OF VARIOUS COMMUNIST
PARTY ORGANIZATIONS AFFILIATED WITH AND CONTROLLED AS TO THEIR POLICY
AND ACTION BY THE THIRD INTERNATIONAL, THE PARENT COMMUNIST
ORGANIZATION, WHICH HAD ITS HEADQUARTERS AND ITS EXECUTIVE COMMITTEE IN
MOSCOW.  FN3  THE EVIDENCE SHOWS PETITIONER'S LOYALTY TO THE COMMUNIST
PARTY ORGANIZATIONS; THAT AS A MEMBER OF THE PARTY HE WAS SUBJECT TO
AND ACCEPTED ITS POLITICAL CONTROL, AND THAT AS A PARTY MEMBER HIS
ADHERENCE TO ITS POLITICAL PRINCIPLES AND TACTICS WAS REQUIRED BY ITS
CONSTITUTION. 

PETITIONER WAS BORN IN RUSSIA ON AUGUST 1, 1905, AND CAME TO THE
UNITED STATES IN 1907 OR 1908.  IN 1922, WHEN A 16-YEAR OLD STUDENT AT
A NIGHT HIGH SCHOOL IN LOS ANGELES, HE BECAME ONE OF THE ORGANIZERS AND
CHARTER MEMBERS OF THE YOUNG WORKERS LEAGUE OF CALIFORNIA.  FOR TWO OR
THREE YEARS - AND DURING THE FIVE-YEAR PERIOD WHICH WE ARE EXAMINING -
HE WAS EDUCATIONAL DIRECTOR OF THE LEAGUE; IT WAS HIS DUTY "TO ORGANIZE
FORUMS AND STUDIES FOR CLASSES."  "MY JOB WAS TO REGISTER STUDENTS IN
THE CLASSES AND SEND OUT NOTICES FOR MEETINGS; IN OTHER WORDS, TO
ORGANIZE THE EDUCATIONAL ACTIVITIES OF THE LEAGUE FOR WHICH INSTRUCTORS
WERE SUPPLIED."  THE OUTLINES OF THE CURRICULUM OF THIS EDUCATIONAL
PROGRAM WERE ESTABLISHED BY THE LEAGUE'S NATIONAL COMMITTEE.  THE
LEAGUE (WHOSE NAME WAS LATER CHANGED TO THE YOUNG COMMUNIST LEAGUE) WAS
AFFILIATED WITH THE COMMUNIST INTERNATIONAL.  FN4  IN 1928, JUST AFTER
HE WAS NATURALIZED, PETITIONER BECAME "ORGANIZER" OR "DIRECTOR" OF THE
LEAGUE - "I WAS THE OFFICIAL SPOKESMAN FOR THE LEAGUE AND DIRECTED ITS
ADMINISTRATIVE AND POLITICAL AFFAIRS AND EDUCATIONAL AFFAIRS." 
PETITIONER WAS A DELEGATE TO THE LEAGUE'S NATIONAL CONVENTION IN 1922,
AND AGAIN IN 1925.  MEANWHILE, ON FEBRUARY 8, 1924, HE HAD FILED A
DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES. 

AT THE END OF 1924, PETITIONER JOINED THE WORKERS PARTY (WHICH LATER
CHANGED ITS NAME TO THE WORKERS COMMUNIST PARTY AND STILL LATER TO THE
COMMUNIST PARTY OF THE UNITED STATES OF AMERICA).  THE PARTY WAS A
TIME PETITIONER BECAME A MEMBER, PROVIDED (ARTICLE III, SEC. 1) THAT
"EVERY PERSON WHO ACCEPTS THE PRINCIPLES AND TACTICS OF THE WORKERS
PARTY OF AMERICA AND AGREES TO SUBMIT TO ITS DISCIPLINE AND ENGAGE
ACTIVELY IN ITS WORK SHALL BE ELIGIBLE TO MEMBERSHIP."  APPLICANTS FOR
MEMBERSHIP WERE REQUIRED (ARTICLE III, SEC. 2) TO SIGN AN APPLICATION
CARD READING AS FOLLOWS:  "THE UNDERSIGNED DECLARES HIS ADHERENCE TO
THE PRINCIPLES AND TACTICS OF THE WORKERS PARTY OF AMERICA AS EXPRESSED
IN ITS PROGRAM AND CONSTITUTION AND AGREES TO SUBMIT TO THE DISCIPLINE
OF THE PARTY AND TO ENGAGE ACTIVELY IN ITS WORK."  IT WAS LIKEWISE
PROVIDED (ARTICLE X, SECS. 1, 2) THAT "ALL DECISIONS OF THE GOVERNING
BODIES OF THE PARTY SHALL BE BINDING UPON THE MEMBERSHIP AND
SUBORDINATE UNITS OF THE ORGANIZATION," AND THAT "ANY MEMBER OR
ORGANIZATION VIOLATING THE DECISIONS OF THE PARTY SHALL BE SUBJECT TO
SUSPENSION OR EXPULSION."  FN5  DURING 1925 AND 1926 PETITIONER WAS
"CORRESPONDING SECRETARY" OF THE WORKERS PARTY IN LOS ANGELES.  AS
SUCH, HE WROTE DOWN THE MINUTES AND SENT OUT COMMUNICATIONS FOR
MEETINGS; AND A LETTER WHICH HE SIGNED IN HIS CAPACITY AS "CITY CENTRAL
SECRETARY" INDICATES THAT HE WAS IN CHARGE OF OUTGOING CORRESPONDENCE
WITH AFFILIATES OF THE PARTY.  IN 1925 HE ATTENDED THE PARTY
CONVENTION. 

AFTER HIS NATURALIZATION, PETITIONER ATTENDED THE SIXTH WORLD
CONGRESS OF THE COMMUNIST INTERNATIONAL, AT MOSCOW, IN 1928; AND FROM
1929 TO 1930 HE WAS DISTRICT ORGANIZATIONAL SECRETARY OF THE PARTY FOR
A DISTRICT WHICH INCLUDED ARIZONA, NEVADA AND CALIFORNIA.  AT VARIOUS
SUBSEQUENT TIMES HE WAS DISTRICT ORGANIZER IN CONNECTICUT, IN
MINNESOTA, AND IN CALIFORNIA.  HE RAN TWICE AS THE PARTY'S CANDIDATE
FOR GOVERNOR OF MINNESOTA.  HE HELD OTHER OFFICIAL POSITIONS IN THE
PARTY, AND AT THE TIME OF THE HEARING IN THE DISTRICT COURT WAS
CALIFORNIA STATE SECRETARY OF THE PARTY AND A MEMBER OF THE STATE
CENTRAL COMMITTEE.  THESE FACTS, WHILE NOT DIRECTLY PROBATIVE OF HIS
BEHAVIOR DURING THE FIVE-YEAR PERIOD 1922-1927, AT LEAST ESTABLISH THAT
HIS EARLY DEVOTION TO THE PARTY ORGANIZATIONS WAS NOT TRANSITORY, NOR
INCONSISTENT WITH HIS GENUINE AND SETTLED CONVICTIONS. 

THE EVIDENCE SHOWS AND IT IS NOT DENIED THAT THE COMMUNIST PARTY
ORGANIZATION AT THE TIME IN QUESTION WAS A REVOLUTIONARY PARTY HAVING
AS ITS ULTIMATE AIM GENERALLY, AND PARTICULARLY IN ENGLAND AND THE
UNITED STATES, THE OVERTHROW OF CAPITALISTIC GOVERNMENT, AND THE
SUBSTITUTION FOR IT OF THE DICTATORSHIP OF THE PROLETARIAT.  IT SOUGHT
TO ACCOMPLISH THIS THROUGH PERSISTENT INDOCTRINATION OF THE PEOPLE IN
CAPITALISTIC COUNTRIES WITH PARTY PRINCIPLES, BY THE ORGANIZATION IN
THOSE COUNTRIES OF SECTIONS OF THE THIRD INTERNATIONAL, BY SYSTEMATIC
TEACHING OF PARTY PRINCIPLES AT MEETINGS AND CLASSES HELD UNDER PARTY
AUSPICES, AND BY THE PUBLICATION AND DISTRIBUTION OF COMMUNIST
LITERATURE WHICH CONSTITUTED ONE OF THE BASIC PRINCIPLES OF PARTY
ACTION. 

IN ACCORDANCE WITH THE POLICY ESTABLISHED AT ITS SECOND WORLD
CONGRESS IN 1920, THE PARTY PRESS WAS BROUGHT UNDER PARTY CONTROL
THROUGH OWNERSHIP OF THE VARIOUS PUBLICATION AGENCIES.  STRICT
ADHERENCE TO PARTY PRINCIPLES WAS DEMANDED OF ALL PUBLICATIONS, WHICH
WERE REQUIRED TO BE EDITED BY PARTY MEMBERS OF PROVED LOYALTY TO THE
PROLETARIAN REVOLUTION.  PROPAGANDA WAS REQUIRED TO CONFORM TO THE
PROGRAM AND DECISIONS OF THE THIRD INTERNATIONAL.  EDITORS WERE REMOVED
AND PARTY MEMBERS EXPELLED FOR NONCOMPLIANCE.  PUBLICATIONS NOT
CONFORMING TO PARTY PRINCIPLES WERE BARRED FROM PARTY CLASSES. 

MANY SUCH COMMUNIST PARTY PUBLICATIONS WERE INTRODUCED AT THE TRIAL
AND CONSTITUTE A LARGE PART OF THE EVIDENCE IN THIS CASE.  PERUSAL OF
THE RECORD CAN LEAVE NO DOUBT OF PETITIONER'S UNQUALIFIED LOYALTY TO
THE COMMUNIST PARTY.  HIS CONTINUOUS SERVICES TO THE PARTY FOR TWENTY
YEARS IN A GREAT VARIETY OF CAPACITIES, AND HIS FAMILIARITY WITH PARTY
PROGRAMS AND LITERATURE, ARE CONVINCING PROOF OF HIS COMPLETE DEVOTION
TO COMMUNIST PARTY PRINCIPLES, AND HIS DESIRE TO ADVANCE THEM. 
THROUGHOUT HE HAS BEEN A DILIGENT STUDENT OF PARTY PUBLICATIONS.  MANY
OF THEM WERE USED IN THE COMMUNIST CLASSES OF WHICH HE WAS EDUCATIONAL
DIRECTOR IN THE YEARS IMMEDIATELY PRECEDING HIS NATURALIZATION.  ALL
WERE PARTICULARLY BROUGHT TO HIS ATTENTION AS THEY WERE INTRODUCED IN
EVIDENCE AND EXCERPTS RELATIVE TO THE ISSUES WERE DISCUSSED IN OPEN
COURT.  EXCEPT AS MAY BE LATER NOTED, HE DID NOT DENY FAMILIARITY WITH
THEM OR DISAVOW THEIR TEACHINGS.  THEY WERE THE OFFICIAL EXPOSITION OF
THE DOCTRINES OF THE PARTY TO WHICH HE HAD FORMALLY PLEDGED HIS
ALLEGIANCE, DILIGENTLY DISSEMINATED BY HIM FOR THE INDOCTRINATION OF
HIS FELLOW COUNTRYMEN, ESPECIALLY THE MEMBERS OF THE YOUTH
ORGANIZATIONS OF THE PARTY.  IN THE CIRCUMSTANCES, AND ESPECIALLY IN
THE ABSENCE OF ANY DISAVOWAL BY PETITIONER OR THE ASSERTION BY HIM OF
IGNORANCE OF THE PRINCIPLES WHICH THEY PROCLAIMED, THEY ARE PERSUASIVE
EVIDENCE OF THE NATURE AND EXTENT OF HIS WANT OF ATTACHMENT TO THE
PRINCIPLES OF THE CONSTITUTION.  IN APPRAISING THEM IN THIS ASPECT IT
WILL BE MOST USEFUL TO STATE IN SOMEWHAT SUMMARY FORM SOME OF THE
TEACHINGS OF THESE PUBLICATIONS, CLASSIFIED WITH REFERENCE TO
PRINCIPLES OF THE CONSTITUTION TO WHICH THEY RELATE, AND TO GIVE A FEW
TYPICAL EXAMPLES, OF WHICH MANY MORE COULD BE GIVEN FROM THE EVIDENCE. 

UNLESS OTHERWISE NOTED, I SHALL REFER ONLY TO THOSE WITH WHICH
PETITIONER WAS FAMILIAR AND WHICH WERE PUBLISHED UNDER THE AUSPICES OF
THE PARTY AND BY ITS OFFICIAL PUBLICATION AGENCIES. 

AS I HAVE SAID, IT IS NOT QUESTIONED THAT THE ULTIMATE AIM OF THE
COMMUNIST PARTY IN 1927 AND THE YEARS PRECEDING WAS THE TRIUMPH OF THE
DICTATORSHIP OF THE PROLETARIAT AND THE CONSEQUENT OVERTHROW OF
CAPITALISTIC OR BOURGEOIS GOVERNMENT AND SOCIETY.  ATTACHMENT TO SUCH
DICTATORSHIP CAN HARDLY BE THOUGHT TO INDICATE ATTACHMENT TO THE
PRINCIPLES OF AN INSTRUMENT OF GOVERNMENT WHICH FORBIDS DICTATORSHIP
AND PRECLUDES THE RULE OF THE MINORITY OR THE SUPPRESSION OF MINORITY
RIGHTS BY DICTATORIAL GOVERNMENT.  BUT THE GOVERNMENT POINTS ESPECIALLY
TO THE METHODS BY WHICH THAT END WAS TO BE ACHIEVED TO SHOW THAT THOSE
WHO PURSUE OR ADVOCATE SUCH METHODS EXHIBIT THEIR WANT OF ATTACHMENT TO
THE PRINCIPLES OF THE CONSTITUTION.  METHODS REPEATEDLY AND
SYSTEMATICALLY ADVOCATED, IN THE COMMUNIST PARTY LITERATURE TO WHICH I
HAVE REFERRED, INCLUDE FIRST A SOFTENING UP PROCESS BY WHICH THE
BREAKDOWN AND DISINTEGRATION OF CAPITALISTIC GOVERNMENTS WAS TO BE
ACHIEVED BY SYSTEMATIC AND GENERAL RESORT TO VIOLATION OF THE LAWS, AND
SECOND, THE OVERTHROW OF CAPITALISTIC GOVERNMENTS BY FORCE AND
VIOLENCE.    IT WAS PROCLAIMED THAT "FOR ALL COUNTRIES, EVEN FOR MOST
FREE 'LEGAL' AND 'PEACEFUL' ONES IN THE SENSE OF A LESSER ACUTENESS IN
THE CLASS STRUGGLE, THE PERIOD HAS ARRIVED, WHEN IT HAS BECOME
ABSOLUTELY NECESSARY FOR EVERY COMMUNIST PARTY TO JOIN SYSTEMATICALLY
LAWFUL AND UNLAWFUL WORK, LAWFUL AND UNLAWFUL ORGANIZATION.  ...  THE
CLASS STRUGGLE IN ALMOST EVERY COUNTRY OF EUROPE AND AMERICA IS
ENTERING THE PHASE OF CIVIL WAR.  UNDER SUCH CONDITIONS THE COMMUNISTS
CAN HAVE NO CONFIDENCE IN BOURGEOIS LAWS.  THEY SHOULD CREATE
EVERYWHERE A PARALLEL ILLEGAL APPARATUS, WHICH AT THE DECISIVE MOMENT
SHOULD DO ITS DUTY BY THE PARTY, AND IN EVERY WAY POSSIBLE ASSIST THE
REVOLUTION.  IN EVERY COUNTRY WHERE, IN CONSEQUENCE OF MARTIAL LAW OR
OF OTHER EXCEPTIONAL LAWS, THE COMMUNISTS ARE UNABLE TO CARRY ON THEIR
WORK LAWFULLY, A COMBINATION OF LAWFUL AND UNLAWFUL WORK IS ABSOLUTELY
NECESSARY."  FN6  "OPPOSITION IN PRINCIPLE TO UNDERGROUND (ILLEGAL)
WORK AND AN UNWILLINGNESS TO UNDERSTAND THE ABSOLUTE NECESSITY FOR A
COMMUNIST PARTY OF COMBINING LEGAL WITH ILLEGAL WORK" WAS IN FACT ONE
GROUND FOR EXPULSION FROM THE PARTY OF A MINORITY FACTION.  FN7
ADVOCACY OF ILLEGAL CONDUCT GENERALLY WAS ACCOMPANIED BY ADVOCACY OF
PARTICULAR TYPES OF ILLEGALITY.  THE PARTY WAS INSTRUCTED TO AROUSE
WORKERS TO "MASS VIOLATION" OF AN INJUNCTION "WHENEVER AND WHEREVER AN
INJUNCTION IS ISSUED BY COURTS AGAINST STRIKERS."  FN8  IN THE
LITERATURE OF THE PERIOD NOW IN QUESTION UNLAWFUL TACTICS WERE
PARTICULARLY TO BE DIRECTED TOWARD GOVERNMENT ARMED FORCES.  IN
ADDITION TO "SYSTEMATIC UNLAWFUL WORK," "IT IS ESPECIALLY NECESSARY TO
CARRY ON UNLAWFUL WORK IN THE ARMY, NAVY, AND POLICE."  FN9  REFUSAL TO
PARTICIPATE IN "PERSISTENT AND SYSTEMATIC PROPAGANDA AND AGITATION" IN
THE ARMY WAS "EQUAL TO TREASON TO THE REVOLUTIONARY CAUSE, AND
INCOMPATIBLE WITH AFFILIATION WITH THE THIRD INTERNATIONAL," FN10  AND
THIS BECAUSE "IT IS NECESSARY, ABOVE ALL THINGS, TO UNDERMINE AND
DESTROY THE ARMY IN ORDER TO OVERCOME THE BOURGEOISIE."  FN11 

THERE IS ABUNDANT DOCUMENTARY EVIDENCE OF THE CHARACTER ALREADY
DESCRIBED TO SUPPORT THE COURT'S FINDING THAT THE COMMUNIST PARTY
ORGANIZATIONS, OF WHICH PETITIONER WAS A MEMBER, DILIGENTLY CIRCULATED
PRINTED MATTER WHICH ADVOCATED THE OVERTHROW OF THE GOVERNMENT OF THE
UNITED STATES BY FORCE AND VIOLENCE, AND THAT PETITIONER AIDED IN THAT
CIRCULATION AND ADVOCACY.  FROM THE BEGINNING, AND DURING ALL TIMES
RELEVANT TO THIS INQUIRY, THERE IS EVIDENCE THAT THE COMMUNIST PARTY
ORGANIZATIONS ADVOCATED THE OVERTHROW OF CAPITALISTIC GOVERNMENTS BY
REVOLUTION TO BE ACCOMPLISHED, IF NEED BE, BY FORCE OF ARMS.  WE NEED
NOT STOP TO CONSIDER THE MUCH DISCUSSED QUESTION WHETHER THIS MEANT
MORE THAN THAT FORCE WAS TO BE USED IF ESTABLISHED GOVERNMENTS SHOULD
BE SO MISGUIDED AS TO REFUSE TO MAKE THEMSELVES OVER INTO PROLETARIAN
DICTATORSHIPS BY AMENDMENT OF THEIR GOVERNMENTAL STRUCTURES, OR SHOULD
HAVE THE EFFRONTERY TO DEFEND THEMSELVES FROM LAWLESS OR SUBVERSIVE
ATTACKS.  FOR IN ANY CASE THE END CONTEMPLATED WAS THE OVERTHROW OF
GOVERNMENT, AND THE MEASURES ADVOCATED WERE FORCE AND VIOLENCE. 

THE FOUNTAINHEAD OF COMMUNIST PRINCIPLES, THE COMMUNIST MANIFESTO,
PUBLISHED BY MARX AND ENGELS IN 1848, HAD OPENLY PROCLAIMED THAT
COMMUNIST ENDS COULD BE ATTAINED "ONLY BY THE FORCIBLE OVERTHROW OF ALL
EXISTING SOCIAL CONDITIONS."  AFTER 1920 THESE TEACHINGS WERE REVIVED
AND RESTATED IN PARTY PUBLICATIONS WHICH, IN THE PERIOD WE ARE NOW
CONSIDERING, WERE USED IN THE COMMUNIST EDUCATIONAL PROGRAM THAT
PETITIONER WAS DIRECTING.  THEY RECOGNIZED THAT "THE PROLETARIAN
REVOLUTION IS IMPOSSIBLE WITHOUT THE VIOLENT DESTRUCTION OF THE
BOURGEOIS GOVERNMENTAL MACHINE AND THE PUTTING OF A NEW ONE IN ITS
PLACE"; THAT "THE DICTATORSHIP OF THE PROLETARIAT CANNOT BE THE RESULT
OF THE PEACEFUL DEVELOPMENT OF BOURGEOIS SOCIETY AND DEMOCRACY; IT CAN
BE THE RESULT ONLY OF THE DESTRUCTION OF THE BOURGEOIS ARMY AND STATE
MACHINE, THE BOURGEOIS ADMINISTRATIVE APPARATUS AND THE WHOLE BOURGEOIS
POLITICAL SYSTEM"; THAT "THE DICTATORSHIP OF THE PROLETARIAT IS BORN
NOT OF THE BOURGEOIS STATE OF THINGS, BUT OF ITS DESTRUCTION AFTER THE
OVERTHROW OF THE BOURGEOISIE, OF THE EXPROPRIATION OF LANDED
PROPRIETORS AND CAPITALISTS, OF THE SOCIALIZATION OF THE ESSENTIAL
INSTRUMENTS AND MEANS OF PRODUCTION, OF THE DEVELOPMENT OF THE
PROLETARIAN REVOLUTION THROUGH VIOLENCE.  THE DICTATORSHIP OF THE
PROLETARIAT IS THE REVOLUTIONARY POWER RESTING ON VIOLENCE AGAINST THE
BOURGEOISIE."  FN12 

PETITIONER TESTIFIED THAT AT THE TIME OF HIS NATURALIZATION HE
SUBSCRIBED TO THE PHILOSOPHY AND PRINCIPLES OF SOCIALISM AS MANIFESTED
IN THE WRITINGS OF LENIN.  THE STATE AND REVOLUTION, BY LENIN, WITH
WHICH PETITIONER WAS FAMILIAR, AND WHICH WAS CIRCULATED BY THE
LITERATURE DEPARTMENT OF THE COMMUNIST PARTY IN 1924 AND 1925 AND USED
BY COMMUNIST PARTY CLASSES, DECLARED:  "THE NECESSITY OF SYSTEMATICALLY
FOSTERING AMONG THE MASSES THIS AND ONLY THIS POINT OF VIEW ABOUT
VIOLENT REVOLUTION LIES AT THE ROOT OF THE WHOLE OF MARX'S AND ENGELS'
TEACHING, AND IT IS JUST THE NEGLECT OF SUCH PROPAGANDA AND AGITATION
BOTH BY THE PRESENT PREDOMINANT SOCIAL-CHAUVINISTS AND THE KAUTSKIAN
SCHOOLS THAT BRINGS THEIR BETRAYAL OF IT INTO PROMINENT RELIEF."  FN13
AND IN ORDER THAT THERE MIGHT BE NO MISUNDERSTANDING OF THE TERM
"REVOLUTION," ENGELS' DEFINITION OF REVOLUTION WAS REVIVED AND RESTATED
AS FOLLOWS:  "REVOLUTION IS AN ACT IN WHICH PART OF THE POPULATION
FORCES ITS WILL ON THE OTHER PARTS BY MEANS OF RIFLES, BAYONETS,
CANNON, I.E., BY MOST AUTHORITATIVE MEANS.  AND THE CONQUERING PARTY IS
INEVITABLY FORCED TO MAINTAIN ITS SUPREMACY BY MEANS OF THAT FEAR WHICH
ITS ARMS INSPIRE IN THE REACTIONARIES."  FN14  "THAT WHICH BEFORE THE
VICTORY OF THE PROLETARIAT SEEMS BUT A THEORETICAL DIFFERENCE OF
OPINION ON THE QUESTION OF 'DEMOCRACY,' BECOMES INEVITABLY ON THE
MORROW OF THE VICTORY, A QUESTION WHICH CAN ONLY BE DECIDED BY FORCE OF
ARMS."  FN15  "THE WORKING CLASS CANNOT ACHIEVE VICTORY OVER THE
BOURGEOIS BY MEANS OF THE GENERAL STRIKE ALONE, AND BY THE POLICY OF
FOLDED ARMS.  THE PROLETARIAT MUST RESORT TO AN ARMED UPRISING."  FN16
"TO SAY THAT THE REVOLUTION CAN BE ACHIEVED WITHOUT CIVIL WAR IS TO SAY
THAT A 'PEACEFUL' REVOLUTION IS POSSIBLE.  ...  MARX WAS A BELIEVER IN
CIVIL WAR - THAT IS, THE ARMED STRUGGLE OF THE PROLETARIAT AGAINST THE
BOURGEOISIE.  ...  THE TEACHERS OF SOCIALISM TOOK THE REVOLUTION VERY
SERIOUSLY.  IT WAS CLEAR TO THEM THAT THE PROLETARIAT COULD NOT CONVERT
THE BOURGEOISIE, AND THAT THE WORKERS WOULD HAVE TO IMPOSE THEIR WILL
UPON THEIR ENEMIES THROUGH A WAR CARRIED ON BY GUNS AND BAYONETS." 
FN17 

THE PARTY TEACHINGS IN THIS AND OTHER PUBLICATIONS WERE THAT
REVOLUTION BY FORCE OF ARMS WAS A UNIVERSAL PRINCIPLE AND CONSEQUENTLY
ONE WHICH EMBRACED THE UNITED STATES, AND OBVIOUSLY WAS INTENDED TO DO
SO WHEN TAUGHT IN COMMUNIST CLASSES IN THE UNITED STATES.  COMMUNIST
PUBLICATIONS IN EVIDENCE WERE AT PAINS TO POINT OUT THAT "MARX'S
LIMITATION WITH REGARD TO THE 'CONTINENT' HAS FURNISHED THE
OPPORTUNISTS AND MENSHEVIKS OF EVERY COUNTRY WITH A PRETEXT FOR
ASSERTING THAT MARX ADMITTED THE POSSIBILITY OF A PEACEFUL
TRANSFORMATION OF BOURGEOIS DEMOCRACY INTO PROLETARIAT DEMOCRACY, AT
LEAST (IN) SOME COUNTRIES (ENGLAND AND AMERICA).  ...  BUT NOW THE
SITUATION IN THESE COUNTRIES IS RADICALLY DIFFERENT.  IMPERIALISM HAS
REACHED ITS APOGEE THERE, AND THERE MILITARISM AND BUREAUCRACY ARE
SOVEREIGN.  IN CONSEQUENCE MARX'S RESTRICTION NO LONGER APPLIES." 
FN18 

IN ORDER TO DETERMINE WHETHER PETITIONER'S BEHAVIOR ESTABLISHED HIS
ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION, WE ARE ENTITLED TO
CONSIDER THE POLITICAL SYSTEM WHICH HIS PARTY PROPOSED TO ESTABLISH AND
TOWARD WHICH HIS OWN EFFORTS IN PROMOTING THE COMMUNIST CAUSE WERE
DIRECTED.  ABOUT THIS THERE IS AND CAN BE NO SERIOUS DISPUTE.  UNDER
THE NEW SYSTEM EXISTING CONSTITUTIONAL PRINCIPLES WERE TO BE
ABANDONED.  IN THE NEW GOVERNMENT TO BE ESTABLISHED BY THE COMMUNISTS,
THE FREEDOMS GUARANTEED BY THE BILL OF RIGHTS WERE TO BE ENDED.  "  ...
THERE CAN BE NO TALK OF 'FREEDOM' FOR EVERYBODY.  THE DICTATORSHIP OF
THE PROLETARIAT IS INCOMPATIBLE WITH THE FREEDOM OF THE BOURGEOISIE. 
THE DICTATORSHIP IS, IN FACT, NECESSARY TO DEPRIVE THE BOURGEOISIE OF
THEIR FREEDOM, TO CHAIN THEM HAND AND FOOT IN ORDER TO MAKE IT
ABSOLUTELY IMPOSSIBLE FOR THEM TO FIGHT THE REVOLUTIONARY
PROLETARIAT."  FN19  THERE WAS TO BE "IMMEDIATE AND UNCONDITIONAL
CONFISCATION OF THE ESTATES OF THE LANDOWNERS AND BIG LANDLORDS" AND
"NO PROPAGANDA CAN BE ADMITTED IN THE RANKS OF THE COMMUNIST PARTIES IN
FAVOR OF AN INDEMNITY TO BE PAID TO THE OWNERS OF LARGE ESTATES FOR
THEIR EXPROPRIATION."  FN20  THE NEW STATE WAS NOT TO INCLUDE
"REPRESENTATIVES OF THE FORMER RULING CLASSES."  FN21  "THE
DICTATORSHIP OF THE PROLETARIAT CANNOT BE A 'COMPLETE DEMOCRACY, A
DEMOCRACY FOR ALL, FOR RICH AND POOR ALIKE; IT HAS TO BE A STATE THAT
IS DEMOCRATIC, BUT ONLY FOR THE PROLETARIAT AND THE PROPERTYLESS, A
STATE THAT IS DICTATORIAL, BUT ONLY AGAINST THE BOURGEOISIE.'   ...
UNDER THE DICTATORSHIP OF THE PROLETARIAT, DEMOCRACY IS PROLETARIAN:
IT IS DEMOCRACY FOR THE EXPLOITED MAJORITY, BASED ON THE LIMITATION OF
THE RIGHTS OF THE EXPLOITING MINORITY AND DIRECTED AGAINST THIS
MINORITY."  FN22 

THE AIMS OF THE COMMUNISTS COULD BE ACHIEVED ONLY BY "THE
ANNIHILATION OF THE ENTIRE BOURGEOIS GOVERNMENTAL APPARATUS,
PARLIAMENTARY, JUDICIAL, MILITARY, BUREAUCRATIC, ADMINISTRATIVE,
MUNICIPAL," AND IT WAS NECESSARY FOR THE COMMUNISTS "TO BREAK AND
DESTROY" THE "APPARATUS."  FN23 THE ANNIHILATION OF THE EXISTING
POLITICAL STRUCTURE WAS DEEMED AS NECESSARY IN THE UNITED STATES AS
ELSEWHERE.  FN24  IF ELECTED TO PUBLIC OFFICE THE COMMUNIST WAS
DIRECTED TO "FACILITATE THIS TASK OF DESTRUCTION" OF THE EXISTING
"APPARATUS," SINCE THE "BOURGEOIS STATE ORGANIZATIONS" WERE TO BE
UTILIZED ONLY "WITH THE OBJECT OF DESTROYING THEM."  FN25 

IT IS UNNECESSARY TO GIVE FURTHER EXAMPLES OF THE TEACHINGS OF
COMMUNIST PARTY ORGANIZATIONS WITH WHICH THE DOCUMENTARY EVIDENCE IS
SHOT THROUGH AND THROUGH.  APPENDED TO THIS OPINION ARE EXCERPTS FROM
TWO EXHIBITS.  THESE HAVE BEEN CHOSEN, NOT BECAUSE THEY PROVE MORE THAN
OTHERS BUT ONLY BECAUSE THEY EXPRESS IN SHORT FORM IDEAS WHICH PERMEATE
ALL.  THE EVIDENCE, AS A WHOLE, AND THE EXHIBITS WHICH WE HAVE
ESPECIALLY MENTIONED, SHOW A BASIS FOR FINDING IN THE PARTY TEACHINGS,
DURING THE PERIOD IN QUESTION, AN UNQUALIFIED HOSTILITY TO THE MOST
FUNDAMENTAL AND UNIVERSALLY RECOGNIZED PRINCIPLES OF THE CONSTITUTION. 
ON THE ARGUMENT WE WERE ADMONISHED THAT PETITIONER FAVORED CHANGE IN
OUR FORM OF GOVERNMENT, WHICH IS ITSELF A PRINCIPLE OF THE
CONSTITUTION, SINCE THE CONSTITUTION PROVIDES FOR ITS OWN AMENDMENT,
AND THAT IN ANY CASE THE COMMUNIST PARTY HAD GREATLY MODIFIED ITS AIMS
IN MORE RECENT YEARS.  IT IS TRUE THAT THE CONSTITUTION PROVIDES FOR
ITS OWN AMENDMENT BY AN ORDERLY PROCEDURE BUT NOT THROUGH THE BREAKDOWN
OF OUR GOVERNMENTAL SYSTEM BY LAWLESS CONDUCT AND BY FORCE.  IT CAN
HARDLY SATISFY THE REQUIREMENT OF "ATTACHMENT TO THE PRINCIPLES OF THE
CONSTITUTION" THAT ONE IS ATTACHED TO THE MEANS FOR ITS DESTRUCTION. 
AND WHETHER AT SOME TIME AFTER 1927 THE PARTY MAY HAVE ABANDONED THESE
DOCTRINES IS IMMATERIAL. 

IT WOULD BE LITTLE SHORT OF PREPOSTEROUS TO ASSERT THAT VIGOROUS AID
KNOWINGLY GIVEN BY A PLEDGED PARTY MEMBER IN DISSEMINATING THE PARTY
TEACHINGS, TO WHICH REFERENCE HAS BEEN MADE, IS COMPATIBLE WITH
ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION.  ON THE RECORD BEFORE
US IT WOULD BE DIFFICULT FOR A TRIAL JUDGE TO CONCLUDE THAT PETITIONER
WAS NOT WELL AWARE THAT HE WAS A MEMBER OF AND AIDING A PARTY WHICH
TAUGHT AND ADVOCATED THE OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES BY FORCE AND VIOLENCE.  IT WOULD BE DIFFICULT ALSO TO FIND AS A
FACT THAT PETITIONER BEHAVED AS A MAN ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION.  THE TRIAL JUDGE FOUND THAT HE DID NOT.  AND THE SAME
EVIDENCE WOULD SEEM TO FURNISH PLAIN ENOUGH SUPPORT FOR THE TRIAL
JUDGE'S FURTHER FINDING THAT PETITIONER DID NOT BEHAVE AS A MAN
ATTACHED "TO THE GOOD ORDER AND HAPPINESS" OF THE UNITED STATES. 

PETITIONER'S PLEDGE OF ADHERENCE TO COMMUNIST PARTY PRINCIPLES AND
TACTICS, AND HIS MEMBERSHIP IN THE COMMUNIST ORGANIZATIONS, WERE
NEITHER PASSIVE NOR INDOLENT.  HIS TESTIMONY SHOWS CLEARLY THAT DURING
THE CRUCIAL YEARS HE WAS A YOUNG MAN OF VIGOROUS INTELLECT AND STRONG
CONVICTIONS.  HE SPENT HIS TIME ACTIVELY ARRANGING FOR THE
DISSEMINATION OF A GOSPEL OF WHICH HE NEVER HAS ASSERTED EITHER
IGNORANCE OR DISBELIEF.  HIS WIDE ACQUAINTANCE WITH PARTY LITERATURE,
AND HIS ZEALOUS PROMOTION OF PARTY INTERESTS FOR MANY YEARS, PRECLUDE
THE SUPPOSITION THAT HE DID NOT KNOW THE CHARACTER OF ITS TEACHINGS AND
DID NOT AID IN THEIR ADVOCACY.  THEY ARE PERSUASIVE THAT HE WAS WITHOUT
ATTACHMENT TO THE CONSTITUTIONAL PRINCIPLES WHICH THOSE TEACHINGS AIMED
TO DESTROY.  YET THE COURT'S OPINION SEEMS TO TELL US THAT THE TRIER OF
FACT MUST NOT EXAMINE PETITIONER'S GOSPEL TO FIND OUT WHAT KIND OF MAN
HE WAS, OR EVEN WHAT HIS GOSPEL WAS; THAT THE TRIER OF FACT COULD NOT
"IMPUTE" TO PETITIONER ANY GENUINE ATTACHMENT TO THE DOCTRINES OF THESE
ORGANIZATIONS WHOSE TEACHINGS HE SO ASSIDUOUSLY SPREAD.  IT MIGHT AS
WELL BE SAID THAT IT IS IMPOSSIBLE TO INFER THAT A MAN IS ATTACHED TO
THE PRINCIPLES OF A RELIGIOUS MOVEMENT FROM THE FACT THAT HE CONDUCTS
ITS PRAYER MEETINGS, OR, TO TAKE A MORE SINISTER EXAMPLE, THAT IT COULD
NOT BE INFERRED THAT A MAN IS A NAZI AND CONSEQUENTLY NOT ATTACHED TO
CONSTITUTIONAL PRINCIPLES WHO, FOR MORE THAN FIVE YEARS, HAD DILIGENTLY
CIRCULATED THE DOCTRINES OF MEIN KAMPF.    IN NEITHER CASE OF COURSE IS
THE INFERENCE INEVITABLE.  IT IS POSSIBLE, THOUGH NOT PROBABLE OR
NORMAL, FOR ONE TO BE ATTACHED TO PRINCIPLES DIAMETRICALLY OPPOSED TO
THOSE, TO THE DISSEMINATION OF WHICH HE HAS GIVEN HIS LIFE'S BEST
EFFORT.  BUT IT IS A NORMAL AND SENSIBLE INFERENCE WHICH THE TRIER OF
FACT IS FREE TO MAKE THAT HIS ATTACHMENT IS TO THOSE PRINCIPLES RATHER
THAN TO CONSTITUTIONAL PRINCIPLES WITH WHICH THEY ARE AT WAR.  A MAN
CAN BE KNOWN BY THE IDEAS HE SPREADS AS WELL AS BY THE COMPANY HE
KEEPS.  AND WHEN ONE DOES NOT CHALLENGE THE PROOF THAT HE HAS GIVEN HIS
LIFE TO SPREADING A PARTICULAR CLASS OF WELL-DEFINED IDEAS, IT IS
CONVINCING EVIDENCE THAT HIS ATTACHMENT IS TO THEM RATHER THAN THEIR
OPPOSITES.  IN THIS CASE IT IS CONVINCING EVIDENCE THAT PETITIONER, AT
THE TIME OF HIS NATURALIZATION, WAS NOT ENTITLED TO THE CITIZENSHIP HE
PROCURED BECAUSE HE WAS NOT ATTACHED TO THE PRINCIPLES OF THE
CONSTITUTION OF THE UNITED STATES AND BECAUSE HE WAS NOT WELL DISPOSED
TO THE GOOD ORDER AND HAPPINESS OF THE SAME. 

FN1  BY SEC. 4 OF THE ACT OF JUNE 29, 1906, 34 STAT. 598, IT IS
PROVIDED: 

"FOURTH.  IT SHALL BE MADE TO APPEAR TO THE SATISFACTION OF THE COURT
ADMITTING ANY ALIEN TO CITIZENSHIP THAT IMMEDIATELY PRECEDING THE DATE
OF HIS APPLICATION HE HAS RESIDED CONTINUOUSLY WITHIN THE UNITED STATES
FIVE YEARS AT LEAST, AND WITHIN THE STATE OR TERRITORY WHERE SUCH COURT
IS AT THE TIME HELD ONE YEAR AT LEAST, AND THAT DURING THAT TIME HE HAS
BEHAVED AS A MAN OF GOOD MORAL CHARACTER, ATTACHED TO THE PRINCIPLES OF
THE CONSTITUTION OF THE UNITED STATES, AND WELL DISPOSED TO THE GOOD
ORDER AND HAPPINESS OF THE SAME.  IN ADDITION TO THE OATH OF THE
APPLICANT, THE TESTIMONY OF AT LEAST TWO WITNESSES, CITIZENS OF THE
UNITED STATES, AS TO THE FACTS OF RESIDENCE, MORAL CHARACTER, AND
ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION SHALL BE REQUIRED, AND
THE NAME, PLACE OF RESIDENCE, AND OCCUPATION OF EACH WITNESS SHALL BE
SET FORTH IN THE RECORD." 

FN2  THE DISTRICT COURT'S DECISION WAS BASED ON BOTH FRAUD AND
ILLEGALITY.  THE CIRCUIT COURT OF APPEALS RELIED UPON FRAUD ALONE, 112
F.2D 74, BUT OUR AFFIRMANCE WAS RESTED "ON THE SOLE GROUND" OF
ILLEGALITY. 

FN3 DURING THE WHOLE PERIOD RELEVANT TO THIS LITIGATION, THE
COMMUNIST PARTY WAS A WORLD ORGANIZATION, KNOWN AS THE THIRD COMMUNIST
INTERNATIONAL (OR COMINTERN), CREATED IN 1919, OF WHICH THE COMMUNIST
PARTIES IN EACH COUNTRY WERE SECTIONS.  THE SUPREME GOVERNING BODY OF
THE THIRD COMMUNIST INTERNATIONAL - WHICH EXERCISED CONTROL OF THE
PARTY PROGRAM, TACTICS AND ORGANIZATION - WAS THE WORLD CONGRESS OF THE
COMMUNIST INTERNATIONAL.  BETWEEN MEETINGS OF THE CONGRESS ITS
AUTHORITY WAS VESTED IN THE EXECUTIVE COMMITTEE OF THE COMMUNIST
INTERNATIONAL.  THE RESOLUTIONS OF THE CONGRESS, AND BETWEEN MEETINGS
THOSE OF THE EXECUTIVE COMMITTEE, WERE BINDING ON ALL SECTIONS.  IN THE
UNITED STATES THE WORKERS PARTY OF AMERICA, A COMMUNIST ORGANIZATION,
WAS ESTABLISHED IN 1921.  IT WAS AFFILIATED WITH THE COMMUNIST
INTERNATIONAL, AND HAD SENT DELEGATES TO THE THIRD WORLD CONGRESS OF
THE INTERNATIONAL EARLIER IN THAT YEAR.  THE WORKERS PARTY OF AMERICA
HAS BEEN SINCE CONTINUED, AND SUCCESSIVELY KNOWN AS THE WORKERS
(COMMUNIST) PARTY AND AS THE COMMUNIST PARTY OF THE UNITED STATES OF
AMERICA.  THE PARTY SENT ACCREDITED REPRESENTATIVES TO THE COMMUNIST
INTERNATIONAL AND RECOGNIZED THE LEADERSHIP OF THE INTERNATIONAL.  IT
WAS AFFILIATED WITH THE THIRD INTERNATIONAL, OF WHICH IT CONSTITUTED A
OCCURRED LONG PRIOR TO THE DISSOLUTION OF THE COMINTERN IN MAY 1943. 

FN4  THE YOUNG WORKERS LEAGUE WAS AFFILIATED WITH THE YOUNG COMMUNIST
INTERNATIONAL AND THE COMMUNIST INTERNATIONAL.  IT SENT DELEGATES TO
THE CONGRESS OF THE YOUNG COMMUNIST INTERNATIONAL.  IT WAS ALSO CLOSELY
RELATED TO THE WORKERS PARTY, AND SENT DELEGATES TO THE PARTY
CONVENTIONS.  AT ITS THIRD NATIONAL CONVENTION, THE PARTY ADOPTED THE
FOLLOWING RESOLUTION: 

"THE TASK OF REACHING THE YOUTH WITH THE MESSAGE OF COMMUNISM, OF
INTERESTING THEM IN OUR CAUSE AND ORGANIZING THEM FOR THE MILITANT
STRUGGLE AGAINST THE EXISTING SOCIAL ORDER AND ITS OPPRESSION AND
EXPLOITATION IS OF MAJOR IMPORTANCE FOR THE WHOLE COMMUNIST MOVEMENT. 
IN CARRYING ON THIS WORK THE YOUNG WORKERS LEAGUE IS PREPARING THE
FIGHTERS FOR COMMUNISM WHO WILL SOON STAND IN THE RANKS OF THE PARTY AS
PART OF ITS BEST FIGHTERS." 

THE SECOND YEAR OF THE WORKERS PARTY OF AMERICA.  REPORT OF THE
CENTRAL EXECUTIVE COMMITTEE TO THE THIRD NATIONAL CONVENTION.  HELD IN
CHICAGO, ILLINOIS, DEC. 30, 31, 1923 AND JAN. 1, 2, 1924.  THESES,
PROGRAM, RESOLUTIONS.  PUBLISHED BY THE LITERATURE DEPARTMENT, WORKERS
PARTY OF AMERICA, 1009 N. STATE ST., CHICAGO, ILL. (P. 122.) 

FN5 PROGRAM AND CONSTITUTION, WORKERS PARTY OF AMERICA.  ADOPTED AT
NATIONAL CONVENTION, NEW YORK CITY, DECEMBER 24-25-26-27, 1921. 
AMENDED AT NATIONAL CONVENTION, CHICAGO, ILL., DECEMBER 30-31, 1923,
AND JANUARY 1, 1924.  PUBLISHED BY LITERATURE DEPARTMENT, WORKERS PARTY
OF AMERICA, 1113 W. WASHINGTON BOULEVARD, CHICAGO, ILL. 

FN6  SEE PP. 18, 28, OF STATUTES, THESES AND CONDITIONS OF ADMISSION
TO THE COMMUNIST INTERNATIONAL.  ADOPTED BY THE SECOND CONGRESS OF THE
COMMUNIST INTERNATIONAL, JULY 17 TO AUGUST 7, 1920.  THE EDITION OF
THIS DOCUMENT IN EVIDENCE IN THE PRESENT CASE WAS PUBLISHED IN MARCH,
1923, UNDER THE AUSPICES OF THE WORKERS PARTY OF AMERICA, AND CONTAINED
THE FOLLOWING STATEMENT ON THE INSIDE FRONT COVER: 

"THE WORKERS PARTY DECLARES ITS SYMPATHY WITH THE PRINCIPLES OF THE
COMMUNIST INTERNATIONAL AND ENTERS THE STRUGGLE AGAINST AMERICAN
CAPITALISM, THE MOST POWERFUL OF THE CAPITALIST GROUPS, UNDER THE
INSPIRATION AND LEADERSHIP OF THE COMMUNIST INTERNATIONAL. 

"IT RALLIES TO THE CALL 'WORKERS OF THE WORLD UNITE.'" 

PETITIONER TESTIFIED THAT HE HAD NO RECOLLECTION OF "THIS PARTICULAR
EDITION" BUT THAT "I HAVE NO DOUBT THAT POSSIBLY A PAMPHLET" LIKE IT
WAS SOLD IN PARTY BOOKSTORES.  THIS DOCUMENT WAS MARKED FOR
IDENTIFICATION AND THE COURT LATER DENIED A MOTION TO EXCLUDE IT AND
OTHER EXHIBITS FROM THE EVIDENCE.  DURING THE TRIAL PETITIONER'S
COUNSEL TWICE REFERRED TO THE DOCUMENT AS HAVING BEEN PUT IN EVIDENCE. 
PETITIONER'S COUNSEL INCLUDED IT, WITH ALL OTHER EXHIBITS IN EVIDENCE
OR OFFERED FOR IDENTIFICATION, IN HIS DESIGNATION OF THE RECORD TO BE
MADE UP IN THE CIRCUIT COURT OF APPEALS.  IT WAS SO INCLUDED BY ORDER
OF THE COURT.  DESPITE THE GOVERNMENT'S OVERSIGHT IN FAILING FORMALLY
TO SAY THAT THE EXHIBIT WAS BEING INTRODUCED IN EVIDENCE, IT OBVIOUSLY
WAS DEEMED TO BE IN EVIDENCE BY BOTH THE PARTIES AND THE TRIAL COURT. 
THE EXHIBIT IS UNQUESTIONABLY RELEVANT AND COMPETENT EVIDENCE, AND IT
BECAME A PART OF THE RECORD BEFORE THE COURTS BELOW. 

FN7  SEE P. 94 OF THE 4TH NATIONAL CONVENTION OF THE WORKERS
(COMMUNIST) PARTY OF AMERICA.  HELD IN CHICAGO, ILL., AUGUST 21-30,
1925.  PUBLISHED BY THE DAILY WORKER PUBLISHING CO., 1113 W. WASHINGTON
BLVD., CHICAGO, ILL.  THE PUBLISHER'S NOTICE INSIDE THE BACK COVER
STATED THAT THIS PAMPHLET WAS "ABSOLUTELY INDISPENSABLE TO ANY MEMBER
OF THE PARTY."  THE PAMPHLET, WHICH WAS THE OFFICIAL REPORT OF THE
CONVENTION, WAS SOLD AND CIRCULATED BY THE PARTY IN LOS ANGELES IN
1925.  PETITIONER DISCLAIMED FAMILIARITY WITH THE LITERATURE OF THIS
CONVENTION, BUT TESTIFIED THAT HE HAD ATTENDED THE CONVENTION.  HE ALSO
TESTIFIED HE WAS IN AGREEMENT WITH THE GENERAL PROGRAM AND PRINCIPLES
OF THE WORKERS (COMMUNIST) PARTY. 

FN8  IBID. P. 107.  THIS WAS PART OF A RESOLUTION, ADOPTED
UNANIMOUSLY BY THE PARTY CONVENTION, RELATING TO "PARTY POLICIES FOR
TRADE UNION WORK." 

FN9  STATUTES, THESE AND CONDITIONS OF ADMISSION TO THE COMMUNIST
INTERNATIONAL (SEE NOTE 6, SUPRA), P. 19. 

FN10  IBID. P. 28. 

FN11  A B C OF COMMUNISM, P. 69.  THIS WAS WRITTEN BY N. BUCHARIN &
E. PREOBRASCHENSKY, IN 1919, TRANSLATED INTO ENGLISH IN JUNE, 1921, AND
PUBLISHED BETWEEN 1920 AND 1924 BY THE LYCEUM-LITERATURE DEPARTMENT,
WORKERS PARTY OF AMERICA, 799 BROADWAY, NEW YORK CITY.  THERE WAS
EVIDENCE THAT THIS PAMPHLET WAS A BASIC WORK OF PARTY STUDY CLASSES IN
1924 AND 1925; THAT IT WAS EXPRESSLY DESIGNED FOR SUCH PURPOSES, WAS
OFFICIALLY CIRCULATED BY THE PARTY, AND WAS STILL ADVERTISED BY THE
WORKERS LIBRARY PUBLISHERS IN 1928.  PETITIONER TESTIFIED THAT HE HAD
READ THE WORK AND WAS FAMILIAR WITH IT, ALTHOUGH HE SAID THAT THE
AUTHORS HAD LATER BEEN EXPELLED FROM THE RUSSIAN COMMUNIST PARTY. 

FN12  THE THEORY AND PRACTICE OF LENINISM, BY STALIN, PP. 33, 32, 30
31.  PUBLISHED FOR THE WORKERS PARTY OF AMERICA BY THE DAILY WORKER
PUBLISHING CO., CHICAGO, ILL.  THIS PAMPHLET WAS USED IN COMMUNIST
PARTY CLASSES IN 1924 AND 1925, AND WAS CIRCULATED BY THE LITERATURE
DEPARTMENT OF THE COMMUNIST PARTY AND SOLD IN PARTY BOOKSHOPS.  FIVE
THOUSAND COPIES WERE PUBLISHED BETWEEN JANUARY 15 AND AUGUST 1, 1925. 

FN13  P. 16, NEW EDITION, APRIL, 1924.  PUBLISHED FOR THE WORKERS
PARTY OF AMERICA BY THE DAILY WORKER PUBLISHING CO., CHICAGO, ILL. 

FN14  IBID., P. 44. 

FN15  STATUTES, THESES AND CONDITIONS OF ADMISSION TO THE COMMUNIST
INTERNATIONAL (SEE NOTE 6, SUPRA), P. 15. 

FN16  IBID., P. 36. 

FN17  ABC OF COMMUNISM (SEE NOTE 12, SUPRA), PP. 109-10. 

FN18  THE THEORY AND PRACTICE OF LENINISM, BY STALIN (SEE NOTE 12,
SUPRA), P. 32.  TO THE SAME EFFECT SEE THE STATE AND REVOLUTION, BY
LENIN (NOTE 13, SUPRA), P. 26. 

FN19  ABC OF COMMUNISM (SEE NOTE 11, SUPRA), PP. 65-66. 

FN20  STATUTES, THESES AND CONDITIONS OF ADMISSION TO THE COMMUNIST
INTERNATIONAL (SEE NOTE 6, SUPRA), P. 82. 

FN21  IBID., P. 46. 

FN22  THE THEORY AND PRACTICE OF LENINISM, BY STALIN (SEE NOTE 12,
SUPRA), PP. 31-32. 

FN23  STATUTES, THESES AND CONDITIONS OF ADMISSION TO THE COMMUNIST
INTERNATIONAL (SEE NOTE 6, SUPRA), PP. 11, 44. 

FN24  SEE NOTE 18, SUPRA. 

FN25  STATUTES, THESES AND CONDITIONS OF ADMISSION TO THE COMMUNIST
INTERNATIONAL (SEE NOTE 6, SUPRA), PP. 44, 45, 46. 

MR. JUSTICE ROBERTS AND MR. JUSTICE FRANKFURTER JOIN IN THIS
DISSENT. 

APPENDIX. 

EXCERPTS FROM EXHIBIT 26 - STATUTES, THESES AND CONDITIONS OF
ADMISSION TO THE COMMUNIST INTERNATIONAL (SEE NOTE 6, SUPRA): 

"THE COMMUNIST INTERNATIONAL MAKES ITS AIM TO PUT UP AN ARMED
STRUGGLE FOR THE OVERTHROW OF THE INTERNATIONAL BOURGEOISIE AND TO
CREATE AN INTERNATIONAL SOVIET REPUBLIC AS A TRANSITION STAGE TO THE
COMPLETE ABOLITION OF THE STATE.  THE COMMUNIST INTERNATIONAL CONSIDERS
THE DICTATORSHIP OF THE PROLETARIAT AS THE ONLY MEANS FOR THE
LIBERATION OF HUMANITY FROM THE HORRORS OF CAPITALISM.  THE COMMUNIST
INTERNATIONAL CONSIDERS THE SOVIET FORM OF GOVERNMENT AS THE
HISTORICALLY EVOLVED FORM OF THIS DICTATORSHIP OF THE PROLETARIAT."  P.
4. 

"UNDER THE CIRCUMSTANCES WHICH HAVE BEEN CREATED IN THE WHOLE WORLD,
AND ESPECIALLY IN THE MOST ADVANCED, MOST POWERFUL, MOST ENLIGHTENED
AND FREEST CAPITALIST COUNTRIES BY MILITARIST IMPERIALISM - OPPRESSION
OF COLONIES AND WEAKER NATIONS, THE UNIVERSAL IMPERIALIST SLAUGHTER,
THE 'PEACE' OF VERSAILLES - TO ADMIT THE IDEA OF A VOLUNTARY SUBMISSION
OF THE CAPITALISTS TO THE WILL OF THE MAJORITY OF THE EXPLOITED, OF A
PEACEFUL, REFORMIST PASSAGE TO SOCIALISM, IS NOT ONLY TO GIVE PROOF OF
AN EXTREME PETTY BOURGEOIS STUPIDITY, BUT IT IS A DIRECT DECEPTION OF
THE WORKMEN, A DISGUISAL OF CAPITALIST WAGE-SLAVERY, A CONCEALMENT OF
THE TRUTH.  THIS TRUTH IS THAT THE BOURGEOISIE, THE MOST ENLIGHTENED
AND DEMOCRATIC PORTION OF THE BOURGEOISIE, IS EVEN NOW NOT STOPPING AT
DECEIT AND CRIME, AT THE SLAUGHTER OF MILLIONS OF WORKMEN AND PEASANTS,
IN ORDER TO RETAIN THE RIGHT OF PRIVATE OWNERSHIP OVER THE MEANS OF
PRODUCTION.  ONLY A VIOLENT DEFEAT OF THE BOURGEOISIE, THE CONFISCATION
OF ITS PROPERTY, THE ANNIHILATION OF THE ENTIRE BOURGEOIS GOVERNMENTAL
APPARATUS, PARLIAMENTARY, JUDICIAL, MILITARY, BUREAUCRATIC,
ADMINISTRATIVE, MUNICIPAL, ETC., EVEN THE INDIVIDUAL EXILE OR
INTERNMENT OF THE MOST STUBBORN AND DANGEROUS EXPLOITERS, THE
ESTABLISHMENT OF A STRICT CONTROL OVER THEM FOR THE REPRESSION OF ALL
INEVITABLE ATTEMPTS AT RESISTANCE AND RESTORATION OF CAPITALIST SLAVERY
- ONLY SUCH MEASURES WILL BE ABLE TO GUARANTEE THE COMPLETE SUBMISSION
OF THE WHOLE CLASS OF EXPLOITERS."  P. 11. 

"THAT WHICH BEFORE THE VICTORY OF THE PROLETARIAT SEEMS BUT A
THEORETICAL DIFFERENCE OF OPINION ON THE QUESTION OF 'DEMOCRACY,'
BECOMES INEVITABLY ON THE MORROW OF THE VICTORY, A QUESTION WHICH CAN
ONLY BE DECIDED BY FORCE OF ARMS."  P. 15. 

"FOR ALL COUNTRIES, EVEN FOR MOST FREE 'LEGAL' AND 'PEACEFUL' ONES IN
THE SENSE OF A LESSER ACUTENESS IN THE CLASS STRUGGLE, THE PERIOD HAS
ARRIVED, WHEN IT HAS BECOME ABSOLUTELY NECESSARY FOR EVERY COMMUNIST
PARTY TO JOIN SYSTEMATICALLY LAWFUL AND UNLAWFUL WORK, LAWFUL AND
UNLAWFUL ORGANIZATION."  P. 18. 

"IT IS ESPECIALLY NECESSARY TO CARRY ON UNLAWFUL WORK IN THE ARMY,
NAVY, AND POLICE, AS, AFTER THE IMPERIALIST SLAUGHTER, ALL THE
GOVERNMENTS IN THE WORLD ARE BECOMING AFRAID OF THE NATIONAL ARMIES,
OPEN TO ALL PEASANTS AND WORKINGMEN, AND THEY ARE SETTING UP IN SECRET
ALL KINDS OF SELECT MILITARY ORGANIZATIONS RECRUITED FROM THE
BOURGEOISIE AND ESPECIALLY PROVIDED WITH IMPROVED TECHNICAL
EQUIPMENT."  P. 19. 

"THE CLASS STRUGGLE IN ALMOST EVERY COUNTRY OF EUROPE AND AMERICA IS
ENTERING THE PHASE OF CIVIL WAR.  UNDER SUCH CONDITIONS THE COMMUNISTS
CAN HAVE NO CONFIDENCE IN BOURGEOIS LAWS.  THEY SHOULD CREATE
EVERYWHERE A PARALLEL ILLEGAL APPARATUS, WHICH AT THE DECISIVE MOMENT
SHOULD DO ITS DUTY BY THE PARTY, AND IN EVERY WAY POSSIBLE ASSIST THE
REVOLUTION.  IN EVERY COUNTRY WHERE, IN CONSEQUENCE OF MARTIAL LAW OR
OF OTHER EXCEPTIONAL LAWS, THE COMMUNISTS ARE UNABLE TO CARRY ON THEIR
WORK LAWFULLY, A COMBINATION OF LAWFUL AND UNLAWFUL WORK IS ABSOLUTELY
NECESSARY."  P. 28.    "A PERSISTENT AND SYSTEMATIC PROPAGANDA AND
AGITATION IS NECESSARY IN THE ARMY, WHERE COMMUNIST GROUPS SHOULD BE
FORMED IN EVERY MILITARY ORGANIZATION.  WHEREVER, OWING TO REPRESSIVE
LEGISLATION, AGITATION BECOMES IMPOSSIBLE, IT IS NECESSARY TO CARRY ON
SUCH AGITATION ILLEGALLY.  BUT REFUSAL TO CARRY ON OR PARTICIPATE IN
SUCH WORK SHOULD BE CONSIDERED EQUAL TO TREASON TO THE REVOLUTIONARY
CAUSE, AND INCOMPATIBLE WITH AFFILIATION WITH THE THIRD
INTERNATIONAL."  P. 28.    "EACH PARTY DESIROUS OF AFFILIATING WITH THE
COMMUNIST INTERNATIONAL SHOULD BE OBLIGED TO RENDER EVERY POSSIBLE
ASSISTANCE TO THE SOVIET REPUBLICS IN THEIR STRUGGLE AGAINST ALL
COUNTER-REVOLUTIONARY FORCES.  THE COMMUNIST PARTIES SHOULD CARRY ON A
PRECISE AND DEFINITE PROPAGANDA TO INDUCE THE WORKERS TO REFUSE TO
TRANSPORT ANY KIND OF MILITARY EQUIPMENT INTENDED FOR FIGHTING AGAINST
THE SOVIET REPUBLICS, AND SHOULD ALSO BY LEGAL OR ILLEGAL MEANS CARRY
ON A PROPAGANDA AMONGST THE TROOPS SENT AGAINST THE WORKERS' REPUBLICS,
ETC."  P. 30. 

"THE WORLD PROLETARIAT IS CONFRONTED WITH DECISIVE BATTLES.  WE ARE
LIVING IN AN EPOCH OF CIVIL WAR.  THE CRITICAL HOUR HAS STRUCK.  IN
ALMOST ALL COUNTRIES WHERE THERE IS A LABOR MOVEMENT OF ANY IMPORTANCE
THE WORKING CLASS, ARMS IN HAND, STANDS IN THE MIDST OF FIERCE AND
DECISIVE BATTLES.  NOW MORE THAN EVER IS THE WORKING CLASS IN NEED OF A
STRONG ORGANIZATION.  WITHOUT LOSING AN HOUR OF INVALUABLE TIME, THE
WORKING CLASS MUST KEEP ON INDEFATIGABLY PREPARING FOR THE IMPENDING
DECISIVE STRUGGLE."  P. 33. 

"UNTIL THE TIME WHEN THE POWER OF GOVERNMENT WILL HAVE BEEN FINALLY
CONQUERED BY THE PROLETARIAT, UNTIL THE TIME WHEN THE PROLETARIAN RULE
WILL HAVE BEEN FIRMLY ESTABLISHED BEYOND THE POSSIBILITY OF A BOURGEOIS
RESTORATION, THE COMMUNIST PARTY WILL HAVE IN ITS ORGANIZED RANKS ONLY
A MINORITY OF THE WORKERS.  UP TO THE TIME WHEN THE POWER WILL HAVE
BEEN SEIZED BY IT, AND DURING THE TRANSITION PERIOD, THE COMMUNIST
PARTY MAY, UNDER FAVORABLE CONDITIONS, EXERCISE UNDISPUTED MORAL AND
POLITICAL INFLUENCE ON ALL THE PROLETARIAN AND SEMI-PROLETARIAN CLASSES
OF THE POPULATION; BUT IT WILL NOT BE ABLE TO UNITE THEM WITHIN ITS
RANKS.  ONLY WHEN THE DICTATORSHIP OF THE WORKERS HAS DEPRIVED THE
BOURGEOISIE OF SUCH POWERFUL WEAPONS AS THE PRESS, THE SCHOOL,
PARLIAMENT, THE CHURCH, THE GOVERNMENT APPARATUS, ETC.; ONLY WHEN THE
FINAL OVERTHROW OF THE CAPITALIST ORDER WILL HAVE BECOME AN EVIDENT
FACT - ONLY THEN WILL ALL OR ALMOST ALL THE WORKERS ENTER THE RANKS OF
THE COMMUNIST PARTY."  PP. 33-34. 

"THE WORKING CLASS CANNOT ACHIEVE THE VICTORY OVER THE BOURGEOISIE BY
MEANS OF THE GENERAL STRIKE ALONE, AND BY THE POLICY OF FOLDED ARMS. 
THE PROLETARIAT MUST RESORT TO AN ARMED UPRISING."  P. 36. 

"AS SOON AS COMMUNISM COMES TO LIGHT, IT MUST BEGIN TO ELUCIDATE THE
CHARACTER OF THE PRESENT EPOCH (THE CULMINATIONS OF CAPITALISM,
IMPERIALISTIC SELF-NEGATION AND SELF-DESTRUCTION, UNINTERRUPTED GROWTH
OF CIVIL WAR, ETC.).  POLITICAL RELATIONSHIPS AND POLITICAL GROUPINGS
MAY BE DIFFERENT IN DIFFERENT COUNTRIES, BUT THE ESSENCE OF THE MATTER
IS EVERYWHERE THE SAME:  WE MUST START WITH THE DIRECT PREPARATION FOR
A PROLETARIAN UPRISING, POLITICALLY AND TECHNICALLY, FOR THE
DESTRUCTION OF THE BOURGEOISIE AND FOR THE CREATION OF THE NEW
POLETARIAN STATE. 

"PARLIAMENT AT PRESENT CAN IN NO WAY SERVE AS THE ARENA OF A STRUGGLE
FOR REFORM, FOR IMPROVING THE LOT OF THE WORKING PEOPLE, AS IT HAS AT
CERTAIN PERIODS OF THE PRECEDING EPOCH.  THE CENTRE OF GRAVITY OF
POLITICAL LIFE AT PRESENT HAS BEEN COMPLETELY AND FINALLY TRANSFERRED
BEYOND THE LIMITS OF PARLIAMENT.  ON THE OTHER HAND, OWING NOT ONLY TO
ITS RELATIONSHIP TO THE WORKING MASSES, BUT ALSO TO THE COMPLICATED
MUTUAL RELATIONS WITHIN THE VARIOUS GROUPS OF THE BOURGEOIS ITSELF, THE
BOURGEOISIE IS FORCED TO HAVE SOME OF ITS POLICIES IN ONE WAY OR
ANOTHER PASSED THROUGH PARLIAMENT, WHERE THE VARIOUS CLIQUES HAGGLE FOR
POWER, EXHIBIT THEIR STRONG SIDES AND BETRAY THEIR WEAK ONES, GET
THEMSELVES UNMASKED, ETC., ETC.  THEREFORE IT IS THE IMMEDIATE
HISTORICAL TASK OF THE WORKING CLASS TO TEAR THIS APPARATUS OUT OF THE
HANDS OF THE RULING CLASSES, TO BREAK AND DESTROY IT, AND TO CREATE IN
ITS PLACE A NEW PROLETARIAN APPARATUS.  AT THE SAME TIME, HOWEVER, THE
REVOLUTIONARY GENERAL STAFF OF THE WORKING CLASS IS VITALLY CONCERNED
IN HAVING ITS SCOUTING PARTIES IN THE PARLIAMENTARY INSTITUTIONS OF THE
BOURGEOISIE, IN ORDER TO FACILITATE THIS TASK OF DESTRUCTION."  PP. 44
45. 

"PARLIAMENTARISM CANNOT BE A FORM OF PROLETARIAN GOVERNMENT DURING
THE TRANSITION PERIOD BETWEEN THE DICTATORSHIP OF THE BOURGEOISIE AND
THAT OF THE PROLETARIAT.  AT THE MOMENT WHEN THE ACCENTUATED CLASS
STRUGGLE TURNS INTO CIVIL WAR, THE PROLETARIAT MUST INEVITABLY FORM ITS
STATE ORGANIZATION AS A FIGHTING ORGANIZATION, WHICH CANNOT CONTAIN ANY
OF THE REPRESENTATIVES OF THE FORMER RULING CLASSES; ALL FICTIONS OF A
'NATIONAL WILL' ARE HARMFUL TO THE PROLETARIAT AT THAT TIME, AND A
PARLIAMENTARY DIVISION OF AUTHORITY IS NEEDLESS AND INJURIOUS TO IT;
THE ONLY FORM OF PROLETARIAN DICTATORSHIP IS A REPUBLIC OF SOVIETS. 

"THE BOURGEOIS PARLIAMENTS, WHICH CONSTITUTE ONE OF THE MOST
IMPORTANT APPARATUS OF THE STATE MACHINERY OF THE BOURGEOISIE, CANNOT
BE WON OVER BY THE PROLETARIAT ANY MORE THAN CAN THE BOURGEOIS ORDER IN
GENERAL.  THE TASK OF THE PROLETARIAT CONSISTS IN BLOWING UP THE WHOLE
MACHINERY OF THE BOURGEOISIE, IN DESTROYING IT, AND ALL THE
PARLIAMENTARY INSTITUTIONS WITH IT, WHETHER THEY BE REPUBLICAN OR
CONSTITUTIONAL-MONARCHICAL."  PP. 45-46. 

"CONSEQUENTLY, COMMUNISM REPUDIATES PARLIAMENTARISM AS THE FORM OF
THE FUTURE; IT RENOUNCES THE SAME AS A FORM OF THE CLASS DICTATORSHIP
OF THE PROLETARIAT; IT REPUDIATES THE POSSIBILITY OF WINNING OVER THE
PARLIAMENTS; ITS AIM IS TO DESTROY PARLIAMENTARISM.  THEREFORE IT IS
ONLY POSSIBLE TO SPEAK OF UTILIZING THE BOURGEOIS STATE ORGANIZATIONS
WITH THE OBJECT OF DESTROYING THEM.  THE QUESTION CAN ONLY AND
EXCLUSIVELY BE DISCUSSED ON SUCH A PLANE. 

"ALL CLASS STRUGGLE IS A POLITICAL STRUGGLE, BECAUSE IT IS FINALLY A
STRUGGLE FOR POWER.  ANY STRIKE, WHEN IT SPREADS THROUGH THE WHOLE
COUNTRY, IS A MENACE TO THE BOURGEOIS STATE, AND THUS ACQUIRES A
POLITICAL CHARACTER.  TO STRIVE TO OVERTHROW THE BOURGEOISIE, AND TO
DESTROY ITS STATE, MEANS TO CARRY ON POLITICAL WARFARE.  TO CREATE
ONE'S OWN CLASS APPARATUS - FOR THE BRIDLING AND SUPPRESSION OF THE
RESISTING BOURGEOISIE, WHATEVER SUCH AN APPARATUS MAY BE - MEANS TO
GAIN POLITICAL POWER."  P. 46. 

"THE MASS STRUGGLE MEANS A WHOLE SYSTEM OF DEVELOPING DEMONSTRATIONS
GROWING EVER MORE ACUTE IN FORM, AND LOGICALLY LEADING TO AN UPRISING
AGAINST THE CAPITALIST ORDER OF GOVERNMENT.  IN THIS WARFARE OF THE
MASSES DEVELOPING INTO A CIVIL WAR, THE GUIDING PARTY OF THE
PROLETARIAT MUST, AS A GENERAL RULE, SECURE EVERY AND ALL LAWFUL
POSITIONS, MAKING THEM ITS AUXILIARIES IN THE REVOLUTIONARY WORK, AND
SUBORDINATING SUCH POSITIONS TO THE PLANS OF THE GENERAL CAMPAIGN, THAT
OF THE MASS STRUGGLE."  P. 47. 

"ON THE OTHER HAND, AN ACKNOWLEDGEMENT OF THE VALUE OF PARLIAMENTARY
WORK IN NO WISE LEADS TO AN ABSOLUTE, IN-ALL-AND-ANY CASE
ACKNOWLEDGEMENT OF THE NECESSITY OF CONCRETE ELECTIONS AND A CONCRETE
PARTICIPATION IN PARLIAMENTARY SESSIONS.  THE MATTER DEPENDS UPON A
SERIES OF SPECIFIC CONDITIONS.  UNDER CERTAIN CIRCUMSTANCES IT MAY
BECOME NECESSARY TO LEAVE THE PARLIAMENT.  THE BOLSHEVIKS DID SO WHEN
THEY LEFT THE PRE-PARLIAMENT IN ORDER TO BREAK IT UP, TO WEAKEN IT, AND
TO SET UP AGAINST IT THE PETROGRAD SOVIET, WHICH WAS THEN PREPARED TO
HEAD THE UPRISING; THEY ACTED IN THE SAME WAY IN THE CONSTITUENT
ASSEMBLY ON THE DAY OF ITS DISSOLUTION, CONVERTING THE THIRD CONGRESS
OF SOVIETS INTO THE CENTRE OF POLITICAL EVENTS.  IN OTHER CIRCUMSTANCES
A BOYCOTTING OF THE ELECTIONS MAY BE NECESSARY, AND A DIRECT, VIOLENT
STORMING OF BOTH THE GREAT BOURGEOIS STATE APPARATUS AND THE
PARLIAMENTARY BOURGEOIS CLIQUE, OR A PARTICIPATION IN THE ELECTIONS
WITH A BOYCOTT OF THE PARLIAMENT ITSELF, ETC. 

"IN THIS WAY, WHILE RECOGNIZING AS A GENERAL RULE THE NECESSITY OF
PARTICIPATING IN THE ELECTION TO THE CENTRAL PARLIAMENT, AND THE
INSTITUTIONS OF LOCAL SELF-GOVERNMENT, AS WELL AS IN THE WORK IN SUCH
INSTITUTIONS, THE COMMUNIST PARTY MUST DECIDE THE QUESTION CONCRETELY,
ACCORDING TO THE SPECIFIC CONDITIONS OF THE GIVEN MOMENT.  BOYCOTTING
THE ELECTIONS OR THE PARLIAMENT, OR LEAVING THE PARLIAMENT, IS
PERMISSIBLE, CHIEFLY WHEN THERE IS A POSSIBILITY OF AN IMMEDIATE
TRANSITION TO AN ARMED FIGHT FOR POWER."  P. 49. 

"A COMMUNIST DELEGATE, BY DECISION OF THE CENTRAL COMMITTEE, IS BOUND
TO COMBINE LAWFUL WORK WITH UNLAWFUL WORK.  IN COUNTRIES WHERE THE
COMMUNIST DELEGATE ENJOYS A CERTAIN INVIOLABILITY, THIS MUST BE
UTILIZED BY WAY OF RENDERING ASSISTANCE TO ILLEGAL ORGANIZATIONS AND
FOR THE PROPAGANDA OF THE PARTY."  P. 51. 

"EACH COMMUNIST MEMBER (OF THE LEGISLATURE) MUST REMEMBER THAT HE IS
NOT A 'LEGISLATOR' WHO IS BOUND TO SEEK AGREEMENTS WITH THE OTHER
LEGISLATORS, BUT AN AGITATOR OF THE PARTY, DETAILED INTO THE ENEMY'S
CAMP IN ORDER TO CARRY OUT THE ORDERS OF THE PARTY THERE.  THE
COMMUNIST MEMBER IS ANSWERABLE NOT TO THE WIDE MASS OF HIS
CONSTITUENTS, BUT TO HIS OWN COMMUNIST PARTY - WHETHER LAWFUL OR
UNLAWFUL."  P. 52. 

"THE PROPAGANDA OF THE RIGHT LEADERS OF THE INDEPENDENTS (HILFERDING,
KAUTSKY, AND OTHERS), PROVING THE COMPATIBILITY OF THE SOVIET 'SYSTEM'
WITH THE BOURGEOIS CONSTITUENT ASSEMBLY, IS EITHER A COMPLETE
MISUNDERSTANDING OF THE LAWS OF DEVELOPMENT OF A PROLETARIAN
REVOLUTION, OR A CONSCIOUS DECEIVING OF THE WORKING CLASS.  THE SOVIETS
ARE THE DICTATORSHIP OF THE PROLETARIAT.  THE CONSTITUENT ASSEMBLY IS
THE DICTATORSHIP OF THE BOURGEOISIE.  TO UNITE AND RECONCILE THE
DICTATORSHIP OF THE WORKING CLASS WITH THAT OF THE BOURGEOISIE IS
IMPOSSIBLE."  P. 64. 

"AFTER THE VICTORY OF THE PROLETARIAT IN THE TOWNS, THIS CLASS (THE
LANDED PEASANTS OR FARMERS) WILL INEVITABLY OPPOSE IT BY ALL MEANS,
FROM SABOTAGE TO OPEN ARMED COUNTER-REVOLUTIONARY RESISTANCE.  THE
REVOLUTIONARY PROLETARIAT MUST, THEREFORE, IMMEDIATELY BEGIN TO PREPARE
THE NECESSARY FORCE FOR THE DISARMAMENT OF EVERY SINGLE MAN OF THIS
CLASS, AND TOGETHER WITH THE OVERTHROW OF THE CAPITALISTS IN INDUSTRY,
THE PROLETARIAT MUST DEAL A RELENTLESS, CRUSHING BLOW TO THIS CLASS. 
TO THAT END IT MUST ARM THE RURAL PROLETARIAT AND ORGANIZE SOVIETS IN
THE COUNTRY, WITH NO ROOM FOR EXPLOITERS, AND A PREPONDERANT PLACE MUST
BE RESERVED TO THE PROLETARIANS AND THE SEMI-PROLETARIANS."  P. 80. 

"THE REVOLUTIONARY PROLETARIAT MUST PROCEED TO AN IMMEDIATE AND
UNCONDITIONAL CONFISCATION OF THE ESTATES OF THE LANDOWNERS AND BIG
LANDLORDS  ...  NO PROPAGANDA CAN BE ADMITTED IN THE RANKS OF THE
COMMUNIST PARTIES IN FAVOR OF AN INDEMNITY TO BE PAID TO THE OWNERS OF
LARGE ESTATES FOR THEIR EXPROPRIATION."  P. 82. 

EXCERPTS FROM EXHIBIT 8 - THE STATE AND REVOLUTION, BY LENIN (SEE
NOTE 13, SUPRA): 

"WE HAVE ALREADY SAID ABOVE AND SHALL SHOW MORE FULLY AT A LATER
STAGE THAT THE TEACHING OF MARX AND ENGELS REGARDING THE INEVITABILITY
OF A VIOLENT REVOLUTION REFERS TO THE CAPITALIST STATE.  IT CANNOT BE
REPLACED BY THE PROLETARIAN STATE (THE DICTATORSHIP OF THE PROLETARIAT)
THROUGH MERE 'WITHERING AWAY,' BUT, IN ACCORDANCE WITH THE GENERAL
RULE, CAN ONLY BE BROUGHT ABOUT BY A VIOLENT REVOLUTION.  THE HYMN SUNG
IN ITS HONOR BY ENGELS AND FULLY CORRESPONDING TO THE REPEATED
DECLARATIONS OF MARX (SEE THE CONCLUDING PASSAGES OF THE POVERTY OF
PHILOSOPHY AND THE COMMUNIST MANIFESTO, WITH ITS PROUD AND OPEN
DECLARATION OF THE INEVITABILITY OF A VIOLENT REVOLUTION; ALSO MARX'S
CRITICISM OF THE GOTHA PROGRAM OF 1875, IN WHICH, THIRTY YEARS AFTER,
HE MERCILESSLY CASTIGATES ITS OPPORTUNIST CHARACTER) - THIS PRAISE IS
BY NO MEANS A MERE 'IMPULSE,' A MERE DECLAMATION, OR A MERE POLEMICAL
SALLY.  THE NECESSITY OF SYSTEMATICALLY FOSTERING AMONG THE MASSES THIS
AND ONLY THIS POINT OF VIEW ABOUT VIOLENT REVOLUTION LIES AT THE ROOT
OF THE WHOLE OF MARX'S AND ENGELS' TEACHING, AND IT IS JUST THE NEGLECT
OF SUCH PROPAGANDA AND AGITATION BOTH BY THE PRESENT PREDOMINANT SOCIAL
CHAUVINISTS AND THE KAUTSKIAN SCHOOLS THAT BRINGS THEIR BETRAYAL OF IT
INTO PROMINENT RELIEF. 

"THE SUBSTITUTION OF A PROLETARIAN FOR THE CAPITALIST STATE IS
IMPOSSIBLE WITHOUT VIOLENT REVOLUTION, WHILE THE ABOLITION OF THE
PROLETARIAN STATE, THAT IS, OF ALL STATES, IS ONLY POSSIBLE THROUGH
'WITHERING AWAY.'"  PP. 15-16. 

"THE STATE IS A PARTICULAR FORM OF ORGANIZATION OF FORCE; IT IS THE
ORGANIZATION OF VIOLENCE FOR THE PURPOSE OF HOLDING DOWN SOME CLASS. 
WHAT IS THE CLASS WHICH THE PROLETARIAT MUST HOLD DOWN?  IT CAN ONLY
BE, NATURALLY, THE EXPLOITING CLASS, I.E., THE BOURGEOISIE.  THE
TOILERS NEED THE STATE ONLY TO OVERCOME THE RESISTANCE OF THE
EXPLOITERS, AND ONLY THE PROLETARIAT CAN GUIDE THIS SUPPRESSION AND
BRING IT TO FULFILMENT - THE PROLETARIAT, THE ONLY CLASS REVOLUTIONARY
TO THE FINISH, THE ONLY CLASS WHICH CAN UNITE ALL THE TOILERS AND THE
EXPLOITED IN THE STRUGGLE AGAINST THE CAPITALIST CLASS FOR ITS COMPLETE
DISPLACEMENT FROM POWER."  PP. 17-18. 

"THE DOCTRINE OF THE CLASS-WAR, AS APPLIED BY MARX TO THE QUESTION OF
THE STATE AND OF THE SOCIALIST REVOLUTION, LEADS INEVITABLY TO THE
RECOGNITION OF THE POLITICAL SUPREMACY OF THE PROLETARIAT, OF ITS
DICTATORSHIP, I.E., OF AN AUTHORITY SHARED WITH NONE ELSE AND RELYING
DIRECTLY UPON THE ARMED FORCE OF THE MASSES.  THE OVERTHROW OF THE
CAPITALIST CLASS IS FEASIBLE ONLY BY THE TRANSFORMATION OF THE
PROLETARIAT INTO THE RULING CLASS, ABLE TO CRUSH THE INEVITABLE AND
DESPERATE RESISTANCE OF THE BOURGEOISIE, AND TO ORGANIZE, FOR THE NEW
SETTLEMENT OF ECONOMIC ORDER, ALL THE TOILING AND EXPLOITED MASSES. 
"THE PROLETARIAT NEEDS THE STATE, THE CENTRALIZED ORGANIZATION OF FORCE
AND VIOLENCE, BOTH FOR THE PURPOSE OF GUIDING THE GREAT MASS OF THE
POPULATION - THE PEASANTRY, THE LOWER MIDDLE-CLASS, THE SEMI
PROLETARIAT - IN THE WORK OF ECONOMIC SOCIALIST RECONSTRUCTION."  PP.
18-19. 

"BUT, IF THE PROLETARIAT NEEDS THE STATE, AS A PARTICULAR FORM OF
ORGANIZATION OF FORCE AGAINST THE CAPITALIST CLASS, THE QUESTION ALMOST
SPONTANEOUSLY FORCES ITSELF UPON US:  IS IT THINKABLE THAT SUCH AN
ORGANIZATION CAN BE CREATED WITHOUT A PRELIMINARY BREAKING UP AND
DESTRUCTION OF THE MACHINERY OF GOVERNMENT CREATED FOR ITS OWN USE BY
THE CAPITALIST CLASS?  THE COMMUNIST MANIFESTO LEADS US STRAIGHT TO
THIS CONCLUSION, AND IT IS OF THIS CONCLUSION THAT MARX WROTE SUMMING
UP THE PRACTICAL RESULTS OF THE REVOLUTIONARY EXPERIENCE GAINED BETWEEN
1849 AND 1851."  P. 19. 

"HENCE MARX EXCLUDED ENGLAND, WHERE A REVOLUTION, EVEN A PEOPLE'S
REVOLUTION, COULD BE IMAGINED AND WAS THEN POSSIBLE, WITHOUT THE
PRELIMINARY CONDITION OF THE DESTRUCTION 'OF THE AVAILABLE READY
MACHINERY OF THE STATE.' 

"TODAY, IN 1917, IN THE EPOCH OF THE FIRST GREAT IMPERIALIST WAR,
THIS DISTINCTION OF MARX'S BECOMES UNREAL, AND ENGLAND AND AMERICA, THE
GREATEST AND LAST REPRESENTATIVES OF ANGLO-SAXON 'LIBERTY,' IN THE
SENSE OF THE ABSENCE OF MILITARISM AND BUREAUCRACY, HAVE TODAY
COMPLETELY ROLLED DOWN INTO THE DIRTY, BLOODY MORASS OF MILITARY
BUREAUCRATIC INSTITUTIONS COMMON TO ALL EUROPE, SUBORDINATING ALL ELSE
TO THEMSELVES.  TODAY, BOTH IN ENGLAND AND IN AMERICA, THE 'PRELIMINARY
CONDITION OF ANY REAL PEOPLE'S REVOLUTION' IS THE BREAK-UP, THE
SHATTERING OF THE 'AVAILABLE READY MACHINERY OF THE STATE' (PERFECTED
IN THOSE COUNTRIES BETWEEN 1914 AND 1917, UP TO THE 'EUROPEAN' GENERAL
IMPERIALIST STANDARD)."  P. 26. 

"BUT FROM THIS CAPITALIST DEMOCRACY - INEVITABLY NARROW, STEALTHILY
THRUSTING ASIDE THE POOR, AND THEREFORE TO ITS CORE, HYPOCRITICAL AND
TREACHEROUS - PROGRESS DOES NOT MARCH ALONG A SIMPLE, SMOOTH AND DIRECT
PATH TO 'GREATER AND GREATER DEMOCRACY,' AS THE LIBERAL PROFESSORS AND
THE LOWER MIDDLE CLASS OPPORTUNISTS WOULD HAVE US BELIEVE.  NO,
PROGRESSIVE DEVELOPMENT - THAT IS, TOWARDS COMMUNISM - MARCHES THROUGH
THE DICTATORSHIP OF THE PROLETARIAT; AND CANNOT DO OTHERWISE, FOR THERE
IS NO ONE ELSE WHO CAN BREAK THE RESISTANCE OF THE EXPLOITING
CAPITALISTS, AND NO OTHER WAY OF DOING IT. 

"AND THE DICTATORSHIP OF THE PROLETARIAT - THAT IS, THE ORGANIZATION
OF THE ADVANCE-GUARD OF THE OPPRESSED AS THE RULING CLASS, FOR THE
PURPOSE OF CRUSHING THE OPPRESSORS - CANNOT PRODUCE MERELY AN EXPANSION
OF DEMOCRACY.  TOGETHER WITH AN IMMENSE EXPANSION OF DEMOCRACY - FOR
THE FIRST TIME BECOMING DEMOCRACY FOR THE POOR, DEMOCRACY FOR THE
PEOPLE, AND NOT DEMOCRACY FOR THE RICH FOLK - THE DICTATORSHIP OF THE
PROLETARIAT WILL PRODUCE A SERIES OF RESTRICTIONS OF LIBERTY IN THE
CASE OF THE OPPRESSORS, EXPLOITERS, AND CAPITALISTS.  WE MUST CRUSH
THEM IN ORDER TO FREE HUMANITY FROM WAGE-SLAVERY; THEIR RESISTANCE MUST
BE BROKEN BY FORCE.  IT IS CLEAR THAT WHERE THERE IS SUPPRESSION THERE
MUST ALSO BE VIOLENCE, AND THERE CANNOT BE LIBERTY OR DEMOCRACY. 

"ENGELS EXPRESSED THIS SPLENDIDLY IN HIS LETTER TO BEBEL WHEN HE
SAID, AS THE READER WILL REMEMBER, THAT 'THE PROLETARIAT NEEDS THE
STATE, NOT IN THE INTERESTS OF LIBERTY, BUT FOR THE PURPOSE OF CRUSHING
ITS OPPONENTS; AND, WHEN ONE WILL BE ABLE TO SPEAK OF FREEDOM, THE
STATE WILL HAVE CEASED TO EXIST.' 

"DEMOCRACY FOR THE VAST MAJORITY OF THE NATION, AND THE SUPPRESSION
BY FORCE - THAT IS, THE EXCLUSION FROM DEMOCRACY - OF THE EXPLOITERS
AND OPPRESSORS OF THE NATION:  THIS IS THE MODIFICATION OF DEMOCRACY
WHICH WE SHALL SEE DURING THE TRANSITION FROM CAPITALISM TO
COMMUNISM."  PP. 63-64. 

"AGAIN, DURING THE TRANSITION FROM CAPITALISM TO COMMUNISM,
SUPPRESSION IS STILL NECESSARY; BUT IN THIS CASE IT IS THE SUPPRESSION
OF THE MINORITY OF EXPLOITERS BY THE MAJORITY OF EXPLOITED.  A SPECIAL
INSTRUMENT, A SPECIAL MACHINE FOR SUPPRESSION - THAT IS, THE 'STATE' -
IS NECESSARY, BUT THIS IS NOW A TRANSITIONAL STATE, NO LONGER A STATE
IN THE ORDINARY SENSE OF THE TERM.  FOR THE SUPPRESSION OF THE MINORITY
OF EXPLOITERS BY THE MAJORITY OF THOSE WHO WERE BUT YESTERDAY WAGE
SLAVES, IS A MATTER COMPARATIVELY SO EASY, SIMPLE AND NATURAL THAT IT
WILL COST FAR LESS BLOODSHED THAN THE SUPPRESSION OF THE RISINGS OF THE
SLAVES, SERFS OR WAGE LABORERS, AND WILL COST THE HUMAN RACE FAR
LESS."  PP. 64-65. 

MR. JUSTICE JACKSON: 

I DO NOT PARTICIPATE IN THIS DECISION.  THIS CASE WAS INSTITUTED IN
JUNE OF 1939 AND TRIED IN DECEMBER OF THAT YEAR.  IN JANUARY 1940, I
BECAME ATTORNEY GENERAL OF THE UNITED STATES AND SUCCEEDED TO OFFICIAL
RESPONSIBILITY FOR IT.  309 U.S. III.  THIS I HAVE CONSIDERED A CAUSE
FOR DISQUALIFICATION, AND I DESIRE THE REASON TO BE A MATTER OF
RECORD. 
..END :

















BUSEY V. DISTRICT OF COLUMBIA, 319 U.S. 579 


NO. 235.  ARGUED JUNE 1, 1943.  - DECIDED JUNE 14, 1943.  - 75 U.S. APP.
D.C. 352, VACATED. 


IN VIEW OF JONES V. OPELIKA, 319 U.S. 103, AND MURDOCK V.
PENNSYLVANIA, 319 U.S. 105, THE JUDGMENT IN THIS CASE IS VACATED AND
THE CAUSE IS REMANDED IN ORDER THAT THE COURT BELOW MAY REEXAMINE THE
QUESTIONS WHETHER SEC. 47-2336 OF THE DISTRICT OF COLUMBIA CODE (1940),
WHICH FORBIDS UNLICENSED SALES UPON THE PUBLIC STREETS, OR FROM PUBLIC
SPACE, SHOULD BE CONSTRUED AS APPLICABLE TO THE FACTS OF THIS CASE, AND
WHETHER, IF APPLICABLE, IT IS CONSTITUTIONAL.  P. 580. 

BUSEY ET AL. V. DISTRICT OF COLUMBIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, POST, P. 735, TO REVIEW THE AFFIRMANCE (129 F.2D 24) OF A
JUDGMENT OF THE POLICE COURT OF THE DISTRICT OF COLUMBIA. 

PER CURIAM. 

IN THIS CASE PETITIONERS, WHO ARE JEHOVAH'S WITNESSES, WERE CONVICTED
OF SELLING, ON THE STREETS OF THE DISTRICT OF COLUMBIA, MAGAZINES WHICH
EXPOUND THEIR RELIGIOUS VIEWS, WITHOUT FIRST PROCURING THE LICENSE AND
PAYING THE LICENSE TAX REQUIRED BY SEC. 47-2336 OF THE DISTRICT OF
COLUMBIA CODE (1940).  IN AFFIRMING THE CONVICTION THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA BELOW HAD TWO QUESTIONS BEFORE IT:
WHETHER THE STATUTE WAS APPLICABLE TO PETITIONERS, AND IF SO WHETHER
ITS APPLICATION AS TO THEM INFRINGED THE FIRST AMENDMENT.  THE COURT
CONSTRUED THE STATUTE AS APPLICABLE AND SUSTAINED ITS CONSTITUTIONALITY
(75 U.S. APP. D.C. 352, 129 F.2D 24), FOLLOWING THE DECISION IN COLE V.
FORT SMITH, 202 ARK. 614, 151 S.W.2D 1000, THE JUDGMENT IN WHICH WAS
AFFIRMED BY THIS COURT IN BOWDEN V. FORT SMITH, 316 U.S. 584, ONE OF
THE CASES ARGUED TOGETHER WITH JONES V. OPELIKA, 316 U.S. 584.  SINCE
THE DECISION BELOW, AND AFTER HEARING REARGUMENT IN THE OPELIKA CASE,
WE HAVE VACATED OUR EARLIER JUDGMENT AND HELD THE LICENSE TAX IMPOSED
IN THAT CASE TO BE UNCONSTITUTIONAL.  JONES V. OPELIKA, 319 U.S. 103;
MURDOCK V. PENNSYLVANIA, 319 U.S. 105.  PETITIONERS URGE US TO CONSTRUE
THE DISTRICT OF COLUMBIA STATUTE AS INAPPLICABLE IN ORDER TO AVOID THE
CONSTITUTIONAL INFIRMITY WHICH MIGHT OTHERWISE EXIST - AN INFIRMITY
CONCEDED BY RESPONDENT ON THE ORAL ARGUMENT BEFORE US.  IN VIEW OF OUR
DECISIONS IN THE OPELIKA AND MURDOCK CASES, WE VACATE THE JUDGMENT IN
THIS CASE AND REMAND THE CAUSE TO THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA TO ENABLE IT TO REEXAMINE ITS RULINGS ON THE CONSTRUCTION
AND VALIDITY OF THE DISTRICT ORDINANCE IN THE LIGHT OF THOSE
DECISIONS.  CF. NEW YORK EX REL. WHITMAN V. WILSON, 318 U.S. 688, 690
691, AND CASES CITED.  SO ORDERED. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















COLE V. VIOLETTE, 319 U.S. 581 


NO. 892.  DECIDED JUNE 14, 1943.  - 312 MASS. 523, 45 N.E.2D 400, APPEAL
DISMISSED. 


1.  IN DETERMINING WHAT IS A FINAL JUDGMENT OR DECREE OF A STATE
SUPREME COURT WITHIN THE MEANING OF SEC. 237 OF THE JUDICIAL CODE, THIS
COURT IS NOT CONTROLLED BY THE DESIGNATION APPLIED TO IT IN STATE
PRACTICE.  P. 582. 

2.  A RESCRIPT FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS TO
THE STATE SUPERIOR COURT EMBODIED AN ORDER DIRECTING THAT THE FINAL
DECREE OF THE LATTER COURT DISMISSING A SUIT ON THE MERITS BE MODIFIED
BY THE INSERTION OF A CLAUSE "TO THE EFFECT THAT THE BILL IS DISMISSED
ON THE GROUND THAT THE QUESTIONS RAISED HAVE BECOME MOOT"; AND
DECLARING THAT "THE DECREE AS SO MODIFIED IS AFFIRMED WITH COSTS," HELD
FINAL WITHIN THE MEANING OF SEC. 237 OF THE JUDICIAL CODE SO THAT AN
APPEAL APPLIED FOR MORE THAN THREE MONTHS FROM THE DATE OF THE ORDER
WAS TOO LATE.  P. 582. 

COLE V. VIOLETTE ET AL. 

APPEAL FROM THE SUPERIOR COURT OF SUFFOLK COUNTY, MASSACHUSETTS. 

PER CURIAM. 

THE QUESTION FOR OUR DECISION IS WHETHER THE APPEAL WAS APPLIED FOR
WITHIN THE THREE MONTHS' PERIOD PROVIDED BY LAW.  28 U.S.C. SEC. 350. 
THE SUIT WAS DISMISSED ON THE MERITS BY THE SUPERIOR COURT OF SUFFOLK
COUNTY, MASSACHUSETTS, AND APPEALED TO THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS, WHICH ON DECEMBER 4, 1942, DECIDED THAT THE CASE HAD
BECOME MOOT.  312 MASS. 523, 45 N.E.2D 400.  ON THE SAME DAY, THAT
COURT SENT TO THE SUPERIOR COURT FROM WHICH THE APPEAL WAS TAKEN A
RESCRIPT WHICH CONTAINED THE FOLLOWING ORDER:  "ORDERED, THAT THE CLERK
OF SAID COURT ...  MAKE THE FOLLOWING ENTRY UNDER SAID CASE IN THE
DOCKET OF SAID COURT:  VIZ., FINAL DECREE TO BE MODIFIED BY THE
INSERTION OF A CLAUSE TO THE EFFECT THAT THE BILL IS DISMISSED ON THE
GROUND THAT THE QUESTIONS RAISED HAVE BECOME MOOT; DECREE AS SO
MODIFIED IS AFFIRMED WITH COSTS."  THE RESCRIPT WAS FILED THAT DAY IN
THE SUPERIOR COURT, WHICH, ON JANUARY 7, 1943, ENTERED A DECREE AS HAD
BEEN DIRECTED. 

APPLICATIONS FOR THE ALLOWANCE OF AN APPEAL TO THIS COURT, PRESENTED
WITHIN THREE MONTHS AFTER DECEMBER 4TH, WERE DENIED BY THE CHIEF
JUSTICE OF THE SUPERIOR COURT OF MASSACHUSETTS AND BY AN ASSOCIATE
JUSTICE OF THIS COURT.  AN APPLICATION PRESENTED TO ANOTHER ASSOCIATE
JUSTICE ON MARCH 6TH WAS ALLOWED.  BUT THIS LAST APPLICATION WAS NOT
TIMELY IF THE TIME TO TAKE AN APPEAL RAN FROM DECEMBER 4TH.  MATTON
STEAMBOAT CO. V. MURPHY, 319 U.S. 412. 

MASSACHUSETTS LOCAL PRACTICE REGARDS THE DECREE ENTERED BY THE
SUPERIOR COURT ON THE RESCRIPT, RATHER THAN THE ORDER OF THE SUPREME
JUDICIAL COURT CONTAINED IN THE RESCRIPT, AS THE "FINAL DECREE" IN THE
CASE.  SEE BOSTON V. SANTOSUOSSO, 308 MASS. 189, 194, 31 N.E.2D 564;
CARILLI V. HERSEY, 303 MASS. 82, 84, 20 N.E.2D 492.  BUT IN DETERMINING
WHAT IS A FINAL JUDGMENT OR DECREE WITHIN THE MEANING OF SEC. 237 OF
THE JUDICIAL CODE, 28 U.S.C. SEC. 344, WE ARE NOT CONTROLLED BY THE
DESIGNATION APPLIED TO IT IN STATE PRACTICE.  DEPARTMENT OF BANKING V.
PINK, 317 U.S. 264, 268; GORMAN V. WASHINGTON UNIVERSITY, 316 U.S. 98,
101.  THE ORDER OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
INCORPORATED IN ITS RESCRIPT WAS AN ORDER OF THE SAME NATURE AND WITH
THE SAME INCIDENTS AS THOSE OF THE HIGHEST COURTS OF OTHER STATES WHICH
WE REVIEW.  IT WAS AN ORDER OF THE COURT, AND ONE WHICH FINALLY
DISPOSED OF ALL THE ISSUES IN THE CASE, LEAVING NOTHING TO BE DONE BUT
THE MINISTERIAL ACT OF ENTERING JUDGMENT IN THE TRIAL COURT.  THE
APPEAL IS DISMISSED ON THE GROUND THAT IT WAS NOT APPLIED FOR WITHIN
THE TIME PROVIDED BY LAW.  DEPARTMENT OF BANKING V. PINK, SUPRA, AND
MATTON STEAMBOAT CO. V. MURPHY, SUPRA.  DISMISSED. 
..END :





TAYLOR V. MISSISSIPPI, 319 U.S. 583 


NO. 826.  ARGUED APRIL 15, 16, 1943.  - DECIDED JUNE 14, 1943.  - 194
MISS.  1, 59, 74, 11 SO.2D 663, 683, 689, REVERSED. 


1.  THE FOURTEENTH AMENDMENT PROHIBITS PUNISHMENT UNDER A STATE
STATUTE FOR URGING AND ADVISING THAT, ON RELIGIOUS GROUNDS, CITIZENS
REFRAIN FROM SALUTING THE FLAGS OF THE UNITED STATES AND THE STATE.  P.
588. 

2.  CONVICTION UNDER A STATE STATUTE DENOUNCING AS A CRIME THE
DISSEMINATING OF LITERATURE TENDING TO CREATE "AN ATTITUDE OF STUBBORN
REFUSAL TO SALUTE, HONOR, OR RESPECT" THE NATIONAL AND STATE FLAGS AND
GOVERNMENTS DENIES THE LIBERTY GUARANTEED BY THE FOURTEENTH AMENDMENT. 
P. 589. 

3.  THE FOURTEENTH AMENDMENT PROHIBITS THAT A STATE SHOULD PUNISH THE
COMMUNICATION OF ONE'S VIEWS OF GOVERNMENTAL POLICIES AND ONE'S
PROPHECIES OF THE FUTURE OF THIS AND OTHER NATIONS, WHEN THIS IS
WITHOUT SINISTER PURPOSE AND IS NOT IN ADVOCACY OF, OR INCITEMENT TO,
SUBVERSIVE ACTION AGAINST THE NATION OR STATE AND DOES NOT INVOLVE ANY
CLEAR AND PRESENT DANGER TO OUR INSTITUTIONS OR GOVERNMENT.  P. 589. 

TAYLOR V. MISSISSIPPI* . 

*TOGETHER WITH NO. 827, BENOIT V. MISSISSIPPI, AND NO. 828, CUMMINGS
V. MISSISSIPPI, ALSO ON APPEALS FROM THE SUPREME COURT OF MISSISSIPPI. 

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. 

APPEALS FROM JUDGMENTS BY AN EVENLY DIVIDED COURT AFFIRMING SENTENCES
IMPOSED IN THREE CRIMINAL PROSECUTIONS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

MARCH 20, 1942, THE STATE OF MISSISSIPPI ENACTED A STATUTE N1 THE
TITLE OF WHICH DECLARES THAT IT IS INTENDED TO SECURE THE PEACE AND
SAFETY OF THE UNITED STATES AND OF THE STATE OF MISSISSIPPI DURING WAR
AND TO PROHIBIT ACTS DETRIMENTAL TO PUBLIC PEACE AND SAFETY.  THE FIRST

"THAT ANY PERSON WHO INDIVIDUALLY, OR AS A MEMBER OF ANY
ORGANIZATION, ASSOCIATION, OR OTHERWISE, SHALL INTENTIONALLY PREACH,
TEACH, OR DISSEMINATE ANY TEACHINGS, CREED, THEORY, OR SET OF ALLEGED
PRINCIPLES, ORALLY, OR BY MEANS OF A PHONOGRAPH OR OTHER CONTRIVANCE OF
ANY KIND OR NATURE, OR BY ANY OTHER MEANS OR METHOD, OR BY THE
DISTRIBUTION OF ANY SORT OF LITERATURE, OR WRITTEN OR PRINTED MATTER,
DESIGNED AND CALCULATED TO ENCOURAGE VIOLENCE, SABOTAGE, OR DISLOYALTY
TO THE GOVERNMENT OF THE UNITED STATES, OR THE STATE OF MISSISSIPPI, OR
WHO BY ACTION OR SPEECH, ADVOCATES THE CAUSE OF THE ENEMIES OF THE
UNITED STATES OR WHO GIVES INFORMATION AS TO THE MILITARY OPERATIONS,
OR PLANS OF DEFENSE OR MILITARY SECRETS OF THE NATION OR THIS STATE, BY
SPEECH, LETTER, MAP OR PICTURE WHICH WOULD INCITE ANY SORT OF RACIAL
DISTRUST, DISORDER, PREJUDICES OR HATREDS, OR WHICH REASONABLY TENDS TO
CREATE AN ATTITUDE OF STUBBORN REFUSAL TO SALUTE, HONOR OR RESPECT THE
FLAG OR GOVERNMENT OF THE UNITED STATES, OR OF THE STATE OF
MISSISSIPPI, SHALL BE GUILTY OF A FELONY AND PUNISHED BY IMPRISONMENT
IN THE STATE PENITENTIARY UNTIL TREATY OF PEACE BE DECLARED BY THE
UNITED STATES BUT SUCH IMPRISONMENT SHALL NOT EXCEED TEN YEARS." 

AT THE JUNE 1942 TERM OF THE MADISON COUNTY CIRCUIT COURT, TAYLOR,
THE APPELLANT IN NO. 826, WAS INDICTED FOR ORALLY DISSEMINATING
TEACHINGS DESIGNED AND CALCULATED TO ENCOURAGE DISLOYALTY TO THE
GOVERNMENT OF THE UNITED STATES AND THAT OF THE STATE OF MISSISSIPPI;
AND FOR ORALLY DISSEMINATING TEACHINGS AND DISTRIBUTING LITERATURE AND
PRINTED MATTER REASONABLY TENDING TO CREATE AN ATTITUDE OF STUBBORN
REFUSAL TO SALUTE, HONOR, AND RESPECT THE FLAG AND GOVERNMENT OF THE
UNITED STATES AND OF THE STATE OF MISSISSIPPI, AND DESIGNED AND
CALCULATED TO ENCOURAGE DISLOYALTY TO THE GOVERNMENT OF THE UNITED
STATES. 

AT THE JUNE 1942 TERM OF THE MARION COUNTY CIRCUIT COURT, BETTY
BENOIT, THE APPELLANT IN NO. 827, WAS INDICTED FOR DISSEMINATING AND
DISTRIBUTING LITERATURE AND PRINTED MATTER DESIGNED AND CALCULATED, AND
WHICH REASONABLY TENDED, TO CREATE AN ATTITUDE OF STUBBORN REFUSAL TO
SALUTE, HONOR, AND RESPECT THE FLAG AND GOVERNMENT OF THE UNITED
STATES. 

AT THE JULY 1942 TERM OF THE WARREN COUNTY CIRCUIT COURT, CUMMINGS,
THE APPELLANT IN NO. 828, WAS INDICTED FOR DISTRIBUTING PRINTED MATTER
DESIGNED AND CALCULATED TO ENCOURAGE DISLOYALTY TO THE UNITED STATES
GOVERNMENT AND TO THE STATE OF MISSISSIPPI, AND TENDING TO CREATE AN
ATTITUDE OF STUBBORN REFUSAL TO SALUTE, HONOR OR RESPECT THE FLAG OR
THE GOVERNMENT OF THE UNITED STATES AND THE STATE OF MISSISSIPPI. 

DEMURRERS AND MOTIONS TO QUASH, CHALLENGING THE CONSTITUTIONAL
VALIDITY OF THE STATUTE, WERE OVERRULED.  THE DEFENDANTS PLEADED TO THE
INDICTMENTS AND, AFTER TRIAL, WERE CONVICTED.  EACH WAS SENTENCED TO
IMPRISONMENT IN THE STATE PENITENTIARY FOR A TERM TO EXPIRE AT THE END
OF THE EXISTING WAR, BUT NOT TO EXCEED TEN YEARS.  APPEALS WERE
PERFECTED TO THE SUPREME COURT OF MISSISSIPPI WHICH, BY AN EVENLY
DIVIDED COURT, AFFIRMED THE CONVICTIONS.  FN2 

THE APPELLANTS MAINTAINED BELOW, AND ASSERT HERE, THAT THEIR
CONVICTIONS DENIED THEM THE RIGHTS GUARANTEED BY THE FOURTEENTH AND
FIRST AMENDMENTS, IN THAT, AS CONSTRUED AND APPLIED TO THEM, THE ACT
ABRIDGES FREEDOM OF PRESS AND OF SPEECH AND IS SO VAGUE, INDEFINITE,
AND UNCERTAIN AS TO FURNISH NO REASONABLY ASCERTAINABLE STANDARD OF
GUILT. 

THE EVIDENCE WAS CONTRADICTORY AND CONFLICTING BUT THE JURIES
RESOLVED THE CONFLICTS AGAINST THE APPELLANTS.  WE MUST, THEREFORE,
EXAMINE THE QUESTIONS PRESENTED ON THE BASIS OF THE PROOFS SUBMITTED BY
THE STATE. 

IN NO. 826 THE PROSECUTION OFFERED EVIDENCE TO SHOW THAT TAYLOR, IN
THE COURSE OF INTERVIEWS WITH SEVERAL WOMEN, THE SONS OF TWO OF WHOM
HAD BEEN KILLED IN BATTLE OVERSEAS, STATED THAT IT WAS WRONG FOR OUR
PRESIDENT TO SEND OUR BOYS ACROSS IN UNIFORM TO FIGHT OUR ENEMIES; THAT
IT WAS WRONG TO FIGHT OUR ENEMIES; THAT THESE BOYS WERE BEING SHOT DOWN
FOR NO PURPOSE AT ALL; THAT THE TWO WOMEN'S SONS MAY HAVE THOUGHT THEY
WERE DOING THE RIGHT THING TO FIGHT OUR ENEMIES, BUT IT WAS WRONG; THAT
HITLER WOULD RULE BUT WOULD NOT HAVE TO COME HERE TO RULE; THAT THE
QUICKER PEOPLE HERE QUIT BOWING DOWN AND WORSHIPING AND SALUTING OUR
FLAG AND GOVERNMENT THE SOONER WE WOULD HAVE PEACE.  BOOKS AND
PAMPHLETS DISTRIBUTED BY TAYLOR WERE PLACED IN EVIDENCE.  CERTAIN
STATEMENTS IN THESE BOOKS, SAID BY THE SUPREME COURT OF MISSISSIPPI TO
BE TYPICAL, ARE COPIED IN THE MARGIN.  FN3 

IN NO. 827 IT WAS PROVED THAT THE APPELLANT BETTY BENOIT DISTRIBUTED
VOLUME XXIII, NO. 583, OF A PUBLICATION ENTITLED "CONSOLATION," WHICH
CONTAINED A REPRINT OF AN EDITORIAL FROM A LEWISTON, MAINE, NEWSPAPER
COMMENTING ADVERSELY UPON THE DECISION IN MINERSVILLE SCHOOL DISTRICT
V. GOBITIS, 310 U.S. 586, AND VIGOROUSLY ASSERTING THAT THE SALUTE OF
THE NATIONAL FLAG AMOUNTED TO A CONTEMPTIBLE FORM OF PRIMITIVE IDOL
WORSHIP.  THE PUBLICATION ALSO CONTAINED AN ALLEGED FOREIGN DISPATCH
WHICH STATED THAT THE FLAG SALUTE CEREMONY, A DAILY EVENT IN FRENCH
SCHOOLS, ORIGINATED IN THE CATHOLIC SCHOOLS OF FRANCE; COMMENTED THAT
THE TYPE OF MIND WHICH FINDS SATISFACTION IN WORSHIPING IMAGES WOULD
ALSO BE MOST INCLINED TOWARDS VARIOUS KINDS OF EMBLEM WORSHIP, AND
ADDED THAT THE DISPATCH CONFIRMS THE CLAIM THAT THE FLAG SALUTE IN THE
UNITED STATES HAS BEEN COVERTLY PUSHED BY THE CATHOLIC HIERARCHY HERE. 

IN NO. 828 THE STATE PROVED THAT THE APPELLANT CUMMINGS DISTRIBUTED A
BOOK CALLED "CHILDREN."  THE VOLUME WAS PLACED IN EVIDENCE.  LONG
EXCERPTS WERE READ TO THE JURY MOST OF WHICH SEEM IRRELEVANT TO THE
CHARGES IN THE INDICTMENT.  ONE PASSAGE, HOWEVER, APPEARS TO BE THAT ON
WHICH THE PROSECUTION ESPECIALLY RELIED.  IT IS COPIED IN THE MARGIN. 
FN4 

THE APPELLANTS ARE ALL MEMBERS OF JEHOVAH'S WITNESSES.  THERE IS
NOTHING IN THE RECORDS TO INDICATE THAT, IN MAKING THE STATEMENTS AND
DISTRIBUTING THE PRINTED MATTER IN QUESTION, THEY WERE COMMUNICATING
AND TEACHING ANY DOCTRINE IN WHICH THEY DID NOT SINCERELY BELIEVE. 

826 AND 828 CHARGE THE COMMISSION OF TWO OF THEM  FN5  IN A SINGLE
COUNT, - (1) TEACHING AND DISSEMINATION OF PRINTED MATTER DESIGNED AND
CALCULATED TO ENCOURAGE DISLOYALTY TO THE NATIONAL AND STATE
GOVERNMENTS, AND (2) DISTRIBUTION OF PRINTED MATTER REASONABLY TENDING
TO CREATE AN ATTITUDE OF STUBBORN REFUSAL TO HONOR OR RESPECT THE FLAG
OR GOVERNMENT OF THE UNITED STATES OR OF THE STATE OF MISSISSIPPI.  IN
NO. 827 THE SINGLE OFFENSE CHARGED IS THE DISSEMINATION OF LITERATURE
REASONABLY TENDING TO CREATE THE DENOUNCED ATTITUDE TOWARDS THE FLAG
AND GOVERNMENT. 

IN WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE, POST, P. 624,
THE COURT HAS DECIDED THAT A STATE MAY NOT ENFORCE A REGULATION
REQUIRING CHILDREN IN THE PUBLIC SCHOOLS TO SALUTE THE NATIONAL
EMBLEM.  THE STATUTE HERE IN QUESTION SEEKS TO PUNISH AS A CRIMINAL ONE
WHO TEACHES RESISTANCE TO GOVERNMENTAL COMPULSION TO SALUTE.  IF THE
FOURTEENTH AMENDMENT BANS ENFORCEMENT OF THE SCHOOL REGULATION, A
FORTIORI IT PROHIBITS THE IMPOSITION OF PUNISHMENT FOR URGING AND
ADVISING THAT, ON RELIGIOUS GROUNDS, CITIZENS REFRAIN FROM SALUTING THE
FLAG.  IF THE STATE CANNOT CONSTRAIN ONE TO VIOLATE HIS CONSCIENTIOUS
RELIGIOUS CONVICTION BY SALUTING THE NATIONAL EMBLEM, THEN CERTAINLY IT
CANNOT PUNISH HIM FOR IMPARTING HIS VIEWS ON THE SUBJECT TO HIS FELLOWS
AND EXHORTING THEM TO ACCEPT THOSE VIEWS. 

INASMUCH AS BETTY BENOIT WAS CHARGED ONLY WITH DISSEMINATING
LITERATURE REASONABLY TENDING TO CREATE AN ATTITUDE OF STUBBORN REFUSAL
TO SALUTE, HONOR, OR RESPECT THE NATIONAL AND STATE FLAGS AND
GOVERNMENTS, HER CONVICTION DENIES HER THE LIBERTY GUARANTEED BY THE
FOURTEENTH AMENDMENT.  HER CONVICTION AND THE CONVICTIONS OF TAYLOR AND
CUMMINGS, FOR ADVOCATING AND TEACHING REFUSAL TO SALUTE THE FLAG,
CANNOT BE SUSTAINED. 

THE LAST-MENTIONED APPELLANTS WERE ALSO CHARGED WITH ORAL TEACHINGS
AND THE DISSEMINATION OF LITERATURE CALCULATED TO ENCOURAGE DISLOYALTY
TO THE STATE AND NATIONAL GOVERNMENTS.  THEIR CONVICTIONS ON THIS
CHARGE MUST ALSO BE SET ASIDE. 

THE STATUTE AS CONSTRUED IN THESE CASES MAKES IT A CRIMINAL OFFENSE
TO COMMUNICATE TO OTHERS VIEWS AND OPINIONS RESPECTING GOVERNMENTAL
POLICIES, AND PROPHECIES CONCERNING THE FUTURE OF OUR OWN AND OTHER
NATIONS.  AS APPLIED TO THE APPELLANTS, IT PUNISHES THEM ALTHOUGH WHAT
THEY COMMUNICATED IS NOT CLAIMED OR SHOWN TO HAVE BEEN DONE WITH AN
EVIL OR SINISTER PURPOSE, TO HAVE ADVOCATED OR INCITED SUBVERSIVE
ACTION AGAINST THE NATION OR STATE,  FN6  OR TO HAVE THREATENED ANY
CLEAR AND PRESENT DANGER TO OUR INSTITUTIONS OR OUR GOVERNMENT.  FN7
WHAT THESE APPELLANTS COMMUNICATED WERE THEIR BELIEFS AND OPINIONS  FN8
CONCERNING DOMESTIC MEASURES AND TRENDS IN NATIONAL AND WORLD
AFFAIRS. 

UNDER OUR DECISIONS CRIMINAL SANCTIONS CANNOT BE IMPOSED FOR SUCH
COMMUNICATION. 

THE JUDGMENTS ARE REVERSED. 

FN1  CHAP. 178, GENERAL LAWS OF MISSISSIPPI, 1942. 

FN2  194 MISS.  1, 59, 74; 11 SO.2D 663, 683, 689. 

FN3  "ALL NATIONS OF THE EARTH TODAY ARE UNDER THE INFLUENCE AND
CONTROL OF THE DEMONS.  ... ALL THE NATIONS SUFFER THE SAME FATE OR
COME TO THE SAME END, BECAUSE ALL NATIONS OF EARTH ARE ON THE WRONG
SIDE, THAT IS, ON THE LOSING SIDE.  ALL OF SUCH NATIONS ARE AGAINST THE
THEOCRATIC GOVERNMENT, THAT IS, THE GOVERNMENT OF KINGDOM OF ALMIGHTY
GOD  ...  AND ALL ARE UNDER THE CONTROL OF THE INVISIBLE HOST OF
DEMONS,  ...  " 

"BUT TO COMPEL PEOPLE TO SALUTE A FLAG OR ANY OTHER IMAGE IS WRONG,
AND PARTICULARLY IF THAT PERSON BELIEVES ON GOD AND CHRIST JESUS.  FOR
THE CHRISTIAN TO SALUTE A FLAG IS IN DIRECT VIOLATION OF GOD'S SPECIFIC
COMMANDMENT." 

"ALMIGHTY GOD COMMANDS THAT THEY MUST REMAIN ENTIRELY NEUTRAL IN THE
CONTROVERSY.  BECAUSE HIS COVENANT PEOPLE ARE SERVANTS AND
REPRESENTATIVES OF THE THEOCRACY THEY MUST HOLD THEMSELVES ENTIRELY
ALOOF FROM WARRING FACTIONS OF THIS WORLD." 

"NON-CHRISTIANS MAY SALUTE THE FLAG WITHOUT REFERENCE TO THE
FOREGOING RULES.  THOSE WHO ARE REAL CONSCIENTIOUS CHRISTIANS ARE IN A
CLASS ENTIRELY DIFFERENT FROM OTHERS OF THE WORLD.  JEHOVAH'S WITNESSES
ARE CHRISTIANS AND IN A COVENANT TO BE ENTIRELY OBEDIENT TO GOD'S LAW. 
THEY MUST TEACH THEIR CHILDREN AND ADMONISH THEM TO OBEY GOD'S LAW, AS
HE HAS COMMANDED.  THEY ARE CONSCIENTIOUS AND THEY SINCERELY BELIEVE
THAT FOR THEM TO INDULGE IN THE FORMALISM OR CEREMONY OF SALUTING ANY
FLAG IS A VIOLATION OF GOD'S SPECIFIC COMMANDMENT.  ...  " 

IN ITS OPINION THE COURT ADDED: 

"OTHER PASSAGES IN THIS LITERATURE TEACH THAT 'THE SO-CALLED
DEMOCRACIES' HOLD OUT NO HOPE OF PEACE, SECURITY, LIFE OR HAPPINESS -
THAT THE ONLY PLACE OF SAFETY IS IN THEOCRACY; THAT IF THERE IS A
CONFLICT BETWEEN STATE LAW AND WHAT JEHOVAH'S WITNESSES CONCEIVE TO BE
JEHOVAH'S LAW, THE STATE LAW SHOULD NOT BE OBEYED; THAT JEHOVAH'S
WITNESSES TAKE A PLEDGE NOT TO SALUTE THE FLAG AND THAT TO UNDERTAKE BY
LAW TO FORCE A CHILD TO SALUTE THE FLAG IS TO 'FRAME MISCHIEF BY
LAW.'" 

FN4  "SATAN KNOWS THAT HIS TIME IS SHORT, AND THEREFORE HE IS
DESPERATELY TRYING TO TURN ALL PERSONS, INCLUDING THE CHILDREN, AGAINST
GOD.  (REVELATION 12:  12, 17.)  THEREFORE SATAN INFLUENCES PUBLIC
OFFICIALS AND OTHERS TO COMPEL LITTLE CHILDREN TO INDULGE IN IDOLATROUS
PRACTICES BY BOWING DOWN TO SOME IMAGE OR THING, SUCH AS SALUTING FLAGS
AND HAILING MEN, AND WHICH IS IN DIRECT VIOLATION OF GOD'S
COMMANDMENT.  (EXODUS 20:  1-5.)  THAT IS WHY IN THE LAST FEW YEARS
RULES ARE MADE AND ENFORCED IN THE PUBLIC SCHOOLS COMPELLING CHILDREN
OF THE JONADABS, WHO ARE IN A COVENANT TO DO GOD'S WILL, TO INDULGE IN
THE IDOLATROUS PRACTICE OF FLAG-SALUTING AND HAILING MEN.  IT IS THE
INFLUENCE OF THAT SUBTLE FOE, THE DEVIL, THAT HAS BROUGHT ABOUT THIS
STATE OF AFFAIRS, AND NOW SATAN'S AGENTS CAUSE GREAT PERSECUTION TO BE
BROUGHT UPON THE PARENTS AND THE CHILDREN WHO INSIST ON OBEYING THE
COMMANDMENTS OF GOD.  THIS MAKES THE WAY OF BOTH PARENTS AND CHILDREN
MORE DIFFICULT, BUT AT THE SAME TIME IT PUTS A TEST UPON THEM AND
AFFORDS THEM THE OPPORTUNITY TO PROVE THEIR FAITH AND OBEDIENCE AND TO
MAINTAIN THEIR INTEGRITY TOWARDS GOD AND HIS KING." 

FN5  THERE IS NO CHARGE IN ANY OF THE INDICTMENTS OF (1) PREACHING,
TEACHING, DISSEMINATION OF TEACHINGS, OR DISTRIBUTION OF WRITTEN OR
PRINTED MATTER DESIGNED OR CALCULATED TO ENCOURAGE VIOLENCE OR
SABOTAGE; (2) ADVOCACY, BY ACTION OR SPEECH, OF THE CAUSE OF THE
ENEMIES OF THE UNITED STATES; (3) THE GIVING OF INFORMATION AS TO
MILITARY AFFAIRS; (4) INCITEMENT OF RACIAL DISTURBANCES, DISORDER,
PREJUDICE OR HATRED.    FN6  SEE SCHENCK V. UNITED STATES, 249 U.S. 47;
ABRAMS V. UNITED STATES, 250 U.S. 616; WHITNEY V. CALIFORNIA, 274 U.S.
357. 

FN7  SEE DE JONGE V. OREGON, 299 U.S. 353; HERNDON V. LOWRY, 301 U.S.
242. 

FN8  SEE STROMBERG V. CALIFORNIA, 283 U.S. 359; THORNHILL V. ALABAMA,
310 U.S. 88. 
..END :



















INTERSTATE TRANSIT LINES V. COMM'R, 319 U.S. 590 


NO. 552.  ARGUED APRIL 19, 1943.  - DECIDED JUNE 14, 1943.  - 130 F.2D
136, AFFIRMED. 


1.  A CORPORATION, OPERATING A BUS LINE INTERSTATE AND INTRASTATE,
FINDING THAT IN A PARTICULAR STATE IT COULD NOT LAWFULLY ENGAGE IN THE
LOCAL BUSINESS BECAUSE IT HAD NOT BEEN THERE INCORPORATED, ORGANIZED,
PURSUANT TO THE LAWS OF THAT STATE, A WHOLLY-OWNED SUBSIDIARY WHICH
TOOK OVER THE PARENT COMPANY'S TRAFFIC FROM THE STATE LINE AND OPERATED
INTRASTATE AS WELL.  PURSUANT TO THE CONTRACT BETWEEN THEM, THE PARENT
CORPORATION KEPT THE ACCOUNTS OF THE SUBSIDIARY, MANAGED ITS FINANCES,
PAID ITS BILLS, AND ABSORBED ALL OF ITS PROFITS AND DEFICITS.  HELD: 

(1)  THAT A PAYMENT MADE BY THE PARENT COMPANY TO COVER AN OPERATING
DEFICIT OF THE SUBSIDIARY DURING A TAX YEAR WAS NOT DEDUCTIBLE BY THE
PARENT COMPANY UNDER SEC. 23(A) OF THE REVENUE ACT OF 1936 FROM GROSS
INCOME AS AN ORDINARY AND NECESSARY BUSINESS EXPENSE OF THAT COMPANY. 
P. 593. 

(2)  IN THE ABSENCE OF PROOF ALLOCATING THE DEFICIT AS BETWEEN THE
INTRASTATE AND INTERSTATE BUSINESS OF THE SUBSIDIARY, THE ENTIRE
DEFICIT MUST BE ATTRIBUTED TO THE INTRASTATE BUSINESS.  P. 594. 

(3)  THE MERE FACT THAT THE EXPENSE WAS INCURRED UNDER CONTRACTUAL
OBLIGATION DID NOT SUSTAIN THE DEDUCTION.  P. 594. 

2.  AN INCOME TAX DEDUCTION IS BY LEGISLATIVE GRADE; AND THE BURDEN
OF SHOWING HIS RIGHT TO THE DEDUCTION IS ON THE TAXPAYER.  P. 593. 

INTERSTATE TRANSIT LINES V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 318 U.S. 751, TO REVIEW THE AFFIRMANCE OF A RULING (44
B.T.A. 957) SUSTAINING A DEFICIENCY ASSESSMENT OF INCOME TAX. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES A CLAIM BY THE TAXPAYER TO TREATMENT OF ITSELF AND
A SUBSIDIARY AS A SINGLE TAXABLE PERSON.  THE WRIT OF CERTIORARI WAS
GRANTED BECAUSE OF UNCERTAINTIES IN THIS AREA OF IMPORTANT FEDERAL TAX
LAW.  SEE MOLINE PROPERTIES V. COMMISSIONER, ANTE, P. 436, N. 1. 
PETITIONER, INTERSTATE TRANSIT LINES, SOUGHT TO DEDUCT $28,100.66 AS AN
ORDINARY AND NECESSARY BUSINESS EXPENSE FOR THE YEAR 1936.  SEC. 23(A),
REVENUE ACT OF 1936.  FN1  THIS SUM REPRESENTED A CREDIT TO ITS
SUBSIDIARY, UNION PACIFIC STAGES OF CALIFORNIA, PURSUANT TO A CONTRACT
BY WHICH PETITIONER WAS TO BE LIABLE FOR ALL OPERATING DEFICITS OF THE
SUBSIDIARY.  THE CLAIMED DEDUCTION WAS DISALLOWED AND A DEFICIENCY
DETERMINED.  THE BOARD OF TAX APPEALS SUSTAINED THE COMMISSIONER AND
THE CIRCUIT COURT OF APPEALS HAS AFFIRMED THE BOARD.  INTERSTATE
TRANSIT LINES V. COMMISSIONER, 44 B.T.A. 957; 130 F.2D 136. 

PETITIONER, A NEBRASKA CORPORATION, OPERATED AN INTERSTATE BUS
TRANSPORTATION LINE BETWEEN ILLINOIS AND CALIFORNIA, AND MISSOURI AND
WYOMING, AND DID AN INTRASTATE BUSINESS IN MOST OF THE STATES EN
ROUTE.  BECAUSE OF ITS FOREIGN INCORPORATION, PETITIONER WAS BARRED,
UNDER THE CALIFORNIA RAILROAD COMMISSION'S INTERPRETATION OF CALIFORNIA
LAW, FROM OBTAINING A CERTIFICATE OF PUBLIC CONVENIENCE TO DO
INTRASTATE BUSINESS IN CALIFORNIA.  TO AVOID THIS SITUATION, PETITIONER
IN 1930 ORGANIZED STAGES IN CALIFORNIA AS ITS WHOLLY-OWNED SUBSIDIARY
TO DO THE BUSINESS IT WAS UNABLE TO DO.  IT CONTRACTED WITH STAGES THAT
STAGES WAS TO OPERATE SOLELY FOR PETITIONER'S BENEFIT AND UNDER
PETITIONER'S DIRECTION; ALL PROFITS WERE TO BE PAID TO PETITIONER AND
IT WAS TO REIMBURSE STAGES FOR ANY OPERATING DEFICIT.  IN ADDITION TO
ITS OWN INTRASTATE BUSINESS, STAGES WAS TO CARRY ON ALL OF PETITIONER'S
INTERSTATE BUSINESS IN CALIFORNIA, THE AGREEMENT PROVIDING THAT AS EACH
PARTY'S BUSES CROSSED THE STATE LINE, THE OTHER BECAME ITS LESSEE.  THE
LESSEE WAS TO PAY THE LESSOR FIVE CENTS PER MILE OPERATED BY THE BUS IN
THE LESSEE'S CUSTODY.  ALL THIS RESULTED IN NO CHANGE AND NO ADDED
EXPENSE IN THE BUSINESS FORMERLY DONE IN RESPECTS OTHER THAN ACCOUNTING
EXCEPT FOR THE ADDITION TO THE GROSS REVENUES OF THE ENTERPRISE OF THE
PROCEEDS OF INTRASTATE CALIFORNIA BUSINESS.  PETITIONER KEPT STAGES'
ACCOUNTS, MANAGED ITS FINANCES AND PAID ITS BILLS AND PAYROLL.  EACH
MONTH PETITIONER APPORTIONED BETWEEN THE TWO COMPANIES THE REVENUES AND
EXPENSES ON THE BASIS OF PASSENGER AND TRAFFIC MILEAGE.  ON THE BOOKS
OF EACH A "CLEARING ACCOUNT" WITH THE OTHER SHOWED THE ABSORPTION BY
PETITIONER OF STAGES' ANNUAL DEFICIT OR PROFIT.  IT IS THE 1936
OPERATING DEFICIT OF STAGES, ENTERED ON THE BOOKS OF BOTH ON DECEMBER
31 OF THAT YEAR, WHICH PETITIONER NOW SEEKS TO DEDUCT AS ITS BUSINESS
EXPENSE.  SOME YEARS AFTER 1936, BY REASON OF A CHANGE IN CALIFORNIA
LAW OR ITS INTERPRETATION, PETITIONER BECAME ABLE TO CONDUCT INTRASTATE
BUSINESS IN CALIFORNIA.  CONSEQUENTLY STAGES WAS DISSOLVED AND ITS
ASSETS AND FRANCHISES TRANSFERRED TO PETITIONER.  IN 1932 AND 1933,
CONSOLIDATED INCOME TAX RETURNS WERE FILED BY PETITIONER PURSUANT TO
SEC. 141 OF THE REVENUE ACT OF 1932, 47 STAT. 169, 213. 

WHETHER PHRASED AS THE PAYMENT OF AN EXPENSE IN A BUSINESS CONDUCTED
FOR A PRINCIPAL BY AN AGENT OR AS A CASE WHERE EQUITY AND REALITY
REQUIRE THAT THE SEPARATE CORPORATE IDENTITIES BE IGNORED OR AS THE
INCURRING UNDER CONTRACT OF A NECESSARY EXPENSE, PETITIONER'S ARGUMENT
FOR ITS SUCCESS DEPENDS ON THE CONTENTION THAT STAGES' OPERATING
DEFICIT IS AN EXPENSE OF PETITIONER'S BUSINESS.  WITHOUT THIS KEYSTONE
THE ENTIRE ARGUMENT MUST FALL.  AND WE EXAMINE THE ARGUMENT IN THE
LIGHT OF THE NOW FAMILIAR RULE THAT AN INCOME TAX DEDUCTION IS A MATTER
OF LEGISLATIVE GRACE AND THAT THE BURDEN OF CLEARLY SHOWING THE RIGHT
TO THE CLAIMED DEDUCTION IS ON THE TAXPAYER.  NEW COLONIAL ICE CO. V.
HELVERING, 292 U.S. 435, 440; DEPUTY V. DU PONT, 308 U.S. 488, 493. 
THE DECISION OF THE TWO COURTS BELOW IS THAT THIS BURDEN HAS NOT BEEN
MET. 

THIS IS NOT THE CASE OF A MERE BRANCH OR DIVISION OF A BUSINESS
CONDUCTED SOLELY FOR CONVENIENCE' SAKE UNDER A SEPARATE CORPORATE
FORM.  PETITIONER DID AN INTERSTATE BUS BUSINESS AND WAS A CORPORATION
FOREIGN TO CALIFORNIA.  ON THE OTHER HAND, THE BUSINESS OF STAGES IN
THE TAX YEAR IN QUESTION WAS BOTH INTERSTATE AND INTRASTATE.  FOR
PETITIONER TO ENGAGE IN INTRASTATE BUSINESS IN CALIFORNIA WAS, ON THE
FINDINGS, ILLEGAL.  THUS, THE BUSINESSES OF THE TWO COMPANIES WERE
DISTINCT.  CF. EDWARDS V. CHILE COPPER CO., 270 U.S. 452, 454, 456;
TEXAS-EMPIRE PIPE LINE CO. V. COMMISSIONER, 127 F.2D 220.  EVEN
ASSUMING THAT THE INTERSTATE BUSINESS OF STAGES COULD BE THE BUSINESS
OF THE PETITIONER,  FN2  IT FOLLOWS THAT AT MOST ONLY THAT PART OF THE
DEFICIT ATTRIBUTABLE TO STAGES' INTERSTATE BUSINESS COULD BE AN EXPENSE
OF PETITIONER'S BUSINESS AND PETITIONER COULD NOT CONCEIVABLY DEDUCT AS
A BUSINESS EXPENSE THE COST OF STAGES' INTRASTATE BUSINESS.  THERE WAS
NO SHOWING BELOW AS TO THE ALLOCATION OF THE DEDUCTIONS SOUGHT AS
BETWEEN STAGES' INTRASTATE AND INTERSTATE BUSINESS.  THERE IS THUS NO
RECORD REQUIRING A FURTHER EXAMINATION OF PETITIONER'S ARGUMENT SINCE
IN THE ABSENCE OF AFFIRMATIVE PROOF TO THE CONTRARY WE MUST ASSUME THAT
THE ENTIRE DEFICIENCY WAS FOUND CORRECTLY BY THE COMMISSIONER AND THAT
THE DEFICIT IS ATTRIBUTABLE TO STAGES' INTRASTATE BUSINESS. 

IT IS NO ANSWER TO THIS DEFECT OF PROOF THAT PETITIONER WAS OBLIGATED
BY CONTRACT TO ASSUME STAGES' DEFICIT.  THE MERE FACT THAT THE EXPENSE
WAS INCURRED UNDER CONTRACTUAL OBLIGATION DOES NOT OF COURSE MAKE IT
THE EQUIVALENT OF A RIGHTFUL DEDUCTION UNDER SEC. 23(A).  THAT
SUBSECTION LIMITS PERMITTED DEDUCTIONS TO THOSE PAID OR INCURRED "IN
CARRYING ON ANY TRADE OR BUSINESS."  THE ORIGIN AND NATURE, AND NOT THE
LEGAL FORM, OF THE EXPENSE SOUGHT TO BE DEDUCTED DETERMINES THE
APPLICABILITY OF THE WORDS OF SEC. 23(A).  DEPUTY V. DU PONT, SUPRA,
494.  IT WAS NOT THE BUSINESS OF THE TAXPAYER TO PAY THE COSTS OF
OPERATING AN INTRASTATE BUS LINE IN CALIFORNIA.  THE CARRIAGE OF
INTRASTATE PASSENGERS DID NOT INCREASE THE BUSINESS OF THE TAXPAYER. 
THE PROFIT EARNED ON THEIR CARRIAGE INCREASED THE TAXPAYER'S PROFIT BUT
SO WOULD ANY OTHER PROFITABLE ACTIVITY WHOLLY DISCONNECTED FROM THE
TAXPAYER'S OWN BUSINESS.  AS THE CIRCUIT COURT POINTED OUT, THE
ASSUMPTION OF THE DEFICIT WAS NOT DEPENDENT UPON A CORRESPONDING
SERVICE OR BENEFIT RENDERED TO THE PETITIONER BY STAGES IN CONNECTION
WITH PETITIONER'S BUSINESS.  130 F.2D 136, 139. 

IN VIEW OF THESE CONCLUSIONS, IT IS UNNECESSARY TO CHARACTERIZE THE
PAYMENT BY PETITIONER AS A CAPITAL EXPENDITURE OR OTHERWISE, OR TO
DECIDE WHETHER IF THE RECORD WERE COMPLETE PETITIONER AND STAGES SHOULD
BE TREATED AS A TAXABLE ENTITY FOR THE CLAIMED PURPOSE.  CF. MOLINE
PROPERTIES V. COMMISSIONER, ANTE, P. 436.  AFFIRMED. 

FN1 49 STAT. 1648: 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES.  - ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS
..." 

FN2  CF. MOLINE PROPERTIES V. COMMISSIONER, ANTE, P. 436; HIGGINS V.
SMITH, 308 U.S. 473, 477, N. 8-10. 

MR. JUSTICE JACKSON, DISSENTING: 

THIS TAXPAYER OPERATED A BUS SYSTEM BETWEEN CHICAGO AND LOS ANGELES. 
IT COULD NOT PICK UP INTRASTATE PASSENGERS IN CALIFORNIA, AS IT DID
ELSEWHERE, BECAUSE THE STATE DENIED FOREIGN CORPORATIONS PERMISSION TO
DO SO.  IN ORDER TO OBTAIN LOCAL TRAFFIC TO HELP CARRY THE COST OF
OPERATING THE INTERSTATE BUSES, TAXPAYER ORGANIZED A WHOLLY-OWNED AND
DOMINATED CALIFORNIA SUBSIDIARY.  THIS CONTENTED THE LOCAL AUTHORITIES,
AND IT WAS GRANTED PERMISSION TO CARRY LOCAL BUSINESS.  IT TOOK OVER
BUSES ARRIVING AT THE STATE LINE, OPERATED THEM IN CALIFORNIA, THUS
PERFORMING A PART OF THE TAXPAYER'S AGREEMENTS OF THROUGH CARRIAGE AND
BENEFITING FROM LOCAL TRAFFIC TO REDUCE THE COST.  IT WAS A COMMON
SENSE BUSINESS ARRANGEMENT, FOR THE PURPOSE OF MAKING ITS BUSINESS
PROFITABLE. 

THE TAXPAYER MADE A CONTRACT WITH THE SUBSIDIARY, BY WHICH THE
SUBSIDIARY UNDERTOOK THE SERVICE; THE PARENT COMPANY BECAME ENTITLED TO
THE PROFITS AND ASSUMED THE LOSSES.  THE TAXPAYER AGREED TO REIMBURSE
THE SUBSIDIARY FOR ANY OPERATING DEFICIT.  THIS, TOO, WAS A COMMON
SENSE BUSINESS ARRANGEMENT.  TO PAY ITS WHOLLY-OWNED SUBSIDIARY MORE
WOULD BE POINTLESS, FOR IT WOULD ONLY COME BACK.  TO PAY IT LESS WOULD
RESULT IN ITS BANKRUPTCY TO THE INJURY OF CREDITORS.  SO THE TAXPAYER
AGREED THAT THE OPERATING DEFICITS SHOULD BE THE MEASURE OF ITS
CONTRACTUAL OBLIGATION TO THE SUBSIDIARY. 

THERE IS NO SUGGESTION THAT THIS ARRANGEMENT WAS FOR TAX AVOIDANCE,
OR FOR THAT MATTER THAT IT DID NOT ACTUALLY REDUCE TAXPAYER'S COSTS AND
THUS INCREASE ITS TAX LIABILITY.  THE COMMISSIONER RULED, HOWEVER, THAT
THE AMOUNT OF OPERATING DEFICIT PAID BY THE TAXPAYER WAS NOT A BUSINESS
EXPENSE. 

TO REQUIRE THE COMMISSIONER IN ALL CASES TO ALLOW A DEDUCTION SO
FIXED MIGHT BE TURNED BY THE UNSCRUPULOUS TO TAX-EVASION ENDS.  IT
COULD THEN, THROUGH ITS CONTROLLED SUBSIDIARY, MAKE EXPENDITURES NOT
PROPERLY ALLOWABLE AS BUSINESS EXPENSE, BUT GET THEM ALLOWED AS PART OF
THE DEFICIT ASSUMED BY CONTRACT.  OF COURSE THE COMMISSIONER IS NOT
OBLIGED TO ALLOW THIS, OR ANY OTHER ARRANGEMENT, WHEN IT IS USED AS A
COVER FOR TAX SKULLDUGGERY.  EXAMINATION OF THE ITEMS IS OPEN TO THE
COMMISSIONER.  BUT THIS DEDUCTION HAS BEEN DENIED, NOT FOR SUCH
REASONS, BUT UPON A LEGAL THEORY WHICH I THINK IS ERRONEOUS. 

THE TAXPAYER TOOK INCONSISTENT POSITIONS:  FIRST, THAT THE CORPORATE
ENTITY OF THE SUBSIDIARY SHOULD BE DISREGARDED AND THE TWO COMPANIES
TAXED ON A CONSOLIDATED BASIS; SECOND, THAT THE AMOUNT WAS A PROPER
DEDUCTION UNDER THE CONTRACT, WHICH OF COURSE IMPLIES EXISTENCE OF TWO
PARTIES TO CONTRACT.  THE GOVERNMENT, NOT TO BE OUTDONE IN THE MATTER
OF INCONSISTENCY, DENIED THE SEPARATE ENTITY THEORY AND ALSO
DISREGARDED THE CONTRACT, AND ARGUES TO US "THE CONTRACT OF THE
TAXPAYER TO MAKE GOOD STAGES' OPERATING DEFICITS IS ONE PERVADED BY THE
STOCKHOLDER-CORPORATION RELATION.  ANY CONTRIBUTION TO STAGES UNDER
THIS CONTRACT MUST THEREFORE BE REGARDED AS INCIDENT TO THE TAXPAYER'S
STOCKHOLDER STATUS."  SO THE GOVERNMENT SAYS THE PAYMENT WAS NOT A
COMPENSATION FOR SERVICES WHICH THE CONTRACT PROVIDES THAT IT WAS, BUT
WAS A "CAPITAL CONTRIBUTION" WHICH THE CONTRACT SAYS IT WAS NOT. 

I THINK THERE IS NO MERIT IN THE TAXPAYER'S THEORY THAT THE
COMMISSIONER MUST DISREGARD THE CORPORATE ENTITY OF THE SUBSIDIARY.  IF
A TAXPAYER ITSELF CREATES AND USES A CORPORATION, HE CANNOT REQUIRE THE
COMMISSIONER TO SAY IT ISN'T THERE. 

BUT ON THE OTHER HAND, IF THE COMMISSIONER SAYS THERE ARE TWO
ENTITIES, IT WOULD SEEM THAT THEY WOULD BE ABLE TO CONTRACT WITH EACH
OTHER, ONE TO PERFORM A SERVICE AND THE OTHER TO PAY A PRICE.  THE
SERVICE MAY BE, AND OFTEN IS, ONE THAT THE TAXPAYER COULD NOT PERFORM
FOR ITSELF, BUT IF IT IS HIRED TO BUILD UP ITS BUSINESS, I SEE NO
REASON WHY ITS PROPER COST IS NOT A BUSINESS EXPENSE DEDUCTION.  THE
PRICE NEED NOT BE A FIXED ONE, BUT MAY BE DETERMINABLE BY COSTS OR
OTHER CONTINGENCIES; BUT WHEN FIXED, ITS AMOUNT (BARRING USE AS A
DEVICE TO EVADE) IS THE AMOUNT OF THE DEDUCTION.  COST OR "COST PLUS"
IS ONE OF THE GOVERNMENT'S OWN METHODS OF CONTRACTING.  IT IS NOT AN
ILLICIT METHOD FOR A TAXPAYER TO EMPLOY. 

BUT IT IS URGED THAT SINCE THE TAXPAYER COULD NOT ITSELF PICK UP
LOCAL BUSINESS UNDER CALIFORNIA LAW, IT CANNOT BE THE BUSINESS OF THE
TAXPAYER IN A LEGAL SENSE TO HAVE A SUBSIDIARY DO SO, AND DISBURSEMENTS
TO HAVE LOCAL BUSINESS BROUGHT IN ARE LEGALLY FOREIGN TO ITS BUSINESS,
ALTHOUGH FOR ITS BENEFIT.  I DO NOT SUPPOSE THE TAXPAYER CORPORATION
CAN ITSELF LEGALLY PRACTICE LAW OR MEDICINE, BUT I WOULD SUPPOSE IF IT
NEEDED LEGAL SERVICE FOR ITS BUSINESS OR THOUGHT IT GOOD BUSINESS TO
SUPPLY MEDICAL ATTENTION TO INJURED OR AILING EMPLOYEES, THE COST WOULD
BE A BUSINESS DEDUCTION, EVEN THOUGH THE AGENT WAS DOING WHAT THE
TAXPAYER COULD NOT LEGALLY DO FOR ITSELF.  THE TAXPAYER MAY NOT BE
AUTHORIZED TO RUN A NEWSPAPER OR PUT UP BILLBOARDS, BUT IF IT
CONTRACTED FOR SERVICES OF THOSE WHO ARE, IN ORDER TO FILL VACANT SEATS
IN ITS BUSES, I DO NOT SUPPOSE ITS COST WOULD BE DISALLOWED FOR THAT
REASON. 

THIS COMPANY HAS NOT VIOLATED THE LAW, EVEN OF CALIFORNIA.  INDEED,
IT WENT TO THIS TROUBLE TO COMPLY WITH IT.  THE FACT THAT IT USED A
SUBSIDIARY TO BENEFIT ITS BUSINESS IN AREAS WHERE ITS OWN COMPETENCE
WAS LACKING CAN HARDLY INVALIDATE THE ARRANGEMENT, PARTICULARLY SINCE
IT IS INSISTED THAT THE SUBSIDIARY HAD SEPARATE LEGAL AND TAX
EXISTENCE.  IF STATES CREATE DUMMIES, BUSINESS MEN MAY UTILIZE THEM SO
LONG AS THEY KEEP WITHIN THE LAW, AND THE FUNCTION OF THE REVENUE LAWS
IS NOT TO TELL THEM HOW THEY SHALL MANAGE BUSINESS, BUT TO SEE THAT
WHAT THEY DO HAS PROPER TAX CONSEQUENCES.   SINCE THE DECISION OF THIS
CASE THE TAX COURT HAS HELD IN A VERY SIMILAR CASE THAT WHERE A WHOLLY
OWNED SUBSIDIARY EXCLUSIVELY PERFORMS SERVICES ESSENTIAL TO THE
BUSINESS OF THE PARENT CORPORATION, ADVANCES MADE BY THE PARENT TO MEET
THE SUBSIDIARY'S OPERATING DEFICIT ARE DEDUCTIBLE AS A BUSINESS
EXPENSE.  TEXAS & PACIFIC RY. CO. V. COMMISSIONER, NO. 105730, MARCH
25, 1943.  I THINK THIS IS A CORRECT RULE.  JUDGE HARRON THERE AVOIDS
THE FORCE OF THIS CASE ONLY UPON THE GROUND THAT THE PARENT CORPORATION
HERE COULD NOT ITSELF ENGAGE IN THE BUSINESS DONE IN ITS BEHALF BY THE
SUBSIDIARY.  THAT DISTINCTION IS GOOD ENOUGH TO GET THE TAX COURT AWAY
FROM A BAD RULE, BUT I SEE NO REASON WHY SUCH A DEDUCTION SHOULD BE
AVAILABLE IN CASE OF AN UNNECESSARY SUBSIDIARY AND BE REFUSED IN THE
CASE OF ONE NEEDED TO COMPLY WITH STATE LAWS IN MAKING A PROFITABLE
ENTERPRISE.  I WOULD REVERSE. 

THE CHIEF JUSTICE AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :























OKLAHOMA TAX COMM'N V. U.S., 319 U.S. 598 


NOS. 623, 624, AND 625.  ARGUED APRIL 9, 1943.  - DECIDED JUNE 14,
1943.  - 131 F.2D 635, REVERSED. 


1.  THE STATUTES OF OKLAHOMA TAXING TRANSFERS OF ESTATES OF DECEDENTS
APPLY TO INDIANS OF THE FIVE CIVILIZED TRIBES.  P. 600. 

2.  THE DOCTRINE OF IMPLIED CONSTITUTIONAL IMMUNITY OF "RESTRICTED"
INDIAN LANDS FROM STATE ESTATE TAXATION, BASED ON THE FEDERAL
INSTRUMENTALITY THEORY, HAS IN EFFECT BEEN OVERRULED BY HELVERING V.
MOUNTAIN PRODUCERS CORP., 303 U.S. 376.  P. 603. 

3.  THE ACT OF JANUARY 27, 1933, BY DECLARING THAT ALL FUNDS AND
SECURITIES UNDER THE SUPERVISION OF THE SECRETARY OF THE INTERIOR
BELONGING TO INDIANS OF THE FIVE CIVILIZED TRIBES IN OKLAHOMA OF ONE
HALF OR MORE INDIAN BLOOD ARE "RESTRICTED," DID NOT INTEND TO EXEMPT
TRANSFERS OF SUCH PROPERTY FROM ESTATE TAXES IMPOSED BY THE STATE.  P.
604. 

4.  THE STATUS OF MEMBERS OF THE FIVE CIVILIZED TRIBES IN OKLAHOMA AS
WARDS OF THE FEDERAL GOVERNMENT DOES NOT EXEMPT TRANSFERS OF THEIR
PROPERTY FROM ESTATE TAXATION BY THE STATE; EXEMPTION DEPENDS ON THE
PLAINLY EXPRESSED INTENTION OF CONGRESS.  P. 607. 

5.  "RESTRICTED" CASH AND SECURITIES, LANDS NOT SPECIFICALLY EXEMPT
BY ACTS OF CONGRESS FROM DIRECT TAXATION, AND MISCELLANEOUS PERSONAL
PROPERTY AND INSURANCE, ALL BELONGING TO MEMBERS OF THE FIVE CIVILIZED
TRIBES IN OKLAHOMA, HELD NOT EXEMPT BY ANY EXISTING LEGISLATION FROM
STATE ESTATE TAXATION.  P. 610. 

6.  LANDS IN OKLAHOMA BELONGING TO INDIANS OF THE FIVE CIVILIZED
TRIBES AND WHICH, BY ACT OF CONGRESS, HAVE BEEN SPECIFICALLY EXEMPTED
FROM DIRECT TAXATION BY THE STATE, HELD EXEMPT ALSO FROM STATE ESTATE
TAXATION.  P. 610. 

OKLAHOMA TAX COMMISSION V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 318 U.S. 748, TO REVIEW REVERSALS OF JUDGMENTS OF THE
DISTRICT COURT OF THE UNITED STATES IN ACTIONS TO RECOVER MONEYS
COLLECTED BY THE STATE OF OKLAHOMA AS TAXES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THESE THREE ACTIONS TO RECOVER INHERITANCE
TAXES IMPOSED BY THE STATE OF OKLAHOMA UPON THE TRANSFER OF THE ESTATES
OF THREE DECEASED MEMBERS OF THE FIVE CIVILIZED TRIBES AND PAID UNDER
PROTEST BY THE SECRETARY OF THE INTERIOR FROM FUNDS UNDER HIS CONTROL
BELONGING TO THOSE ESTATES.  THE DISTRICT COURT ENTERED JUDGMENT ON THE
MERITS FOR THE STATE IN EACH CASE.  THE CIRCUIT COURT OF APPEALS
REVERSED.  131 F.2D 635.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THE CASES IN THE ADMINISTRATION OF INDIAN AFFAIRS AND TO
THE STATE OF OKLAHOMA.  THE BASIC QUESTIONS TO BE DECIDED ARE WHETHER,
AS A MATTER OF STATE LAW, THE STATE TAXING STATUTES REACH THESE
ESTATES, AND WHETHER CONGRESS HAS TAKEN FROM THE STATE OF OKLAHOMA THE
POWER TO LEVY TAXES UPON THE TRANSFER OF ALL OR A PART OF PROPERTY AND
FUNDS OF THESE DECEASED INDIANS. 

THE PROPERTIES OF WHICH THE ESTATES ARE COMPOSED FALL INTO FOUR MAIN
CATEGORIES:  LAND EXEMPT FROM DIRECT TAXATION; LAND NOT EXEMPT FROM
DIRECT TAXATION; RESTRICTED CASH AND SECURITIES HELD FOR THE INDIANS BY
THE SECRETARY OF THE INTERIOR; AND MISCELLANEOUS PERSONAL PROPERTIES
AND INSURANCE.  THE TOTAL VALUE OF THE THREE ESTATES WAS ASSESSED AT
APPROXIMATELY $1,245,000, OF WHICH ABOUT 90% REPRESENTS THE VALUE OF
THE CASH AND SECURITIES.  FN1 

INITIALLY WE ARE MET WITH THE CONTENTION THAT OKLAHOMA DID NOT INTEND
TO TAX THE ESTATES OF THE MEMBERS OF THE FIVE CIVILIZED TRIBES.  WE
CANNOT AGREE WITH THIS VIEW.  THE TWO CONTROLLING STATUTES BROADLY
PROVIDE FOR A TAX UPON ALL TRANSFERS MADE IN CONTEMPLATION OF DEATH OR
INTENDED TO TAKE EFFECT AFTER DEATH AS WELL AS TRANSFERS "BY WILL OR
THE INTESTATE LAWS OF THIS STATE."  FN2  THE LANGUAGE OF THE STATUTES
DOES NOT EXCEPT EITHER INDIANS OR ANY OTHER PERSONS FROM THEIR SCOPE. 
EFFORTS OF OKLAHOMA TO APPLY THIS TAX TO THE ESTATE OF A DECEASED
QUAPAW INDIAN WERE FRUSTRATED BY THIS COURT'S OPINION IN CHILDERS V.
BEAVER, 270 U.S. 555, DECIDED IN 1926.  SHORTLY AFTERWARDS THE OKLAHOMA
SUPREME COURT REFUSED TO SUSTAIN THE TAX ON AN OSAGE ESTATE UNDER THE
IMPRESSION THAT THIS RESULT WAS REQUIRED BY THE BEAVER DECISION; BUT,
SIGNIFICANTLY, THE OKLAHOMA COURT HELD THAT THE SCOPE OF THE STATE LAW
SHOULD NOT BE LIMITED "FURTHER THAN THE RULE THEREIN ESTABLISHED." 
CHILDERS V. POPE, 119 OKLA. 300, 303, 249 P. 726, 729.  ABOUT 1938, THE
OKLAHOMA TAXING AUTHORITIES APPARENTLY INITIATED NEW EFFORTS TO COLLECT
AN ESTATE TAX FROM INDIANS.  THIS STATE ACTION FOLLOWED OUR DECISION IN
SUPERINTENDENT V. COMMISSIONER, 295 U.S. 418, IN WHICH WE HELD THAT THE
RESTRICTED INCOME OF INDIANS WAS SUBJECT TO THE FEDERAL INCOME TAX, AND
OUR DECISION IN HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376,
WHICH OVERRULED PREVIOUS DECISIONS LIMITING THE POWER OF THE STATE TO
IMPOSE CERTAIN TYPES OF TAXES ON INCOMES DERIVED FROM TAX-EXEMPT AND
RESTRICTED INDIAN PROPERTY.  THE STATE TAX AUTHORITIES HAVE WITH
REASONABLE CONSISTENCY INTERPRETED THEIR ACTS AS COVERING ESTATES SUCH
AS THESE, AND HAVE ATTEMPTED TO ENFORCE THE STATUTES EXCEPT WHEN THEY
CONSIDERED ENFORCEMENT PRECLUDED BY DECISIONS OF THIS COURT.  THE
DISTRICT COURT HELD THAT THE STATE LAW DOES APPLY TO THESE ESTATES. 
THIS INTERPRETATION IS CONSISTENT WITH THAT GIVEN BY THE STATE
ADMINISTRATIVE AUTHORITIES, WITH THE LANGUAGE OF THE ACTS THEMSELVES
AND WITH THE STATE SUPREME COURT'S HOLDING IN CHILDERS V. POPE, SUPRA. 

THE RESPONDENT'S SECOND AND MAJOR CONTENTION IS THAT THE STATE MAY
NOT IMPOSE AN ESTATE TAX UPON THE TRANSFER OF THE RESTRICTED CASH AND
SECURITIES BECAUSE CONGRESS BY PLACING RESTRICTIONS UPON THIS PROPERTY
MANIFESTED A PURPOSE TO EXEMPT IT FROM OKLAHOMA ESTATE TAXES. 
RESTRICTED PROPERTY OF AN INDIAN IS THAT WHICH MAY NOT BE FREELY
ALIENATED OR USED BY THE INDIAN WITHOUT THE APPROVAL OF THE SECRETARY
OF THE INTERIOR.  WE FIND, UPON AN EXAMINATION OF BOTH THE CASES
DEALING GENERALLY WITH THE TAXATION OF INDIAN PROPERTY AND THE STATUTE
WHICH IMPOSES THE RESTRICTION, THAT THE RESTRICTION, WITHOUT MORE, IS
NOT THE EQUIVALENT OF A CONGRESSIONAL GRANT OF ESTATE TAX IMMUNITY FOR
THE CASH AND SECURITIES.  FN3 

THE MANY CASES DEALING GENERALLY WITH THE PROBLEM OF INDIAN TAX
EXEMPTIONS PROVIDE NO BASIS FOR THE GOVERNMENT'S ARGUMENT THAT
CONGRESS, IN VIEW OF THE EXISTING LEGAL FRAMEWORK, MUST HAVE ASSUMED
THAT IT WOULD IMMUNIZE THE SECURITIES AND CASH FROM ESTATE TAXES BY
RESTRICTING THEIR ALIENATION.  WORCESTER V. GEORGIA, 6 PET. 515, HELD
THAT A STATE MIGHT NOT REGULATE THE CONDUCT OF PERSONS IN INDIAN
TERRITORY ON THE THEORY THAT THE INDIAN TRIBES WERE SEPARATE POLITICAL
ENTITIES WITH ALL THE RIGHTS OF INDEPENDENT STATUS - A CONDITION WHICH
HAS NOT EXISTED FOR MANY YEARS IN THE STATE OF OKLAHOMA.  THE SAME
PRINCIPLE WAS CARRIED INTO THE TAX FIELD IN THE KANSAS INDIANS, 5
WALL.  737, AND FOR THE SAME REASONS.  THAT CASE ALSO EMPHASIZED THAT
THE INDIANS COULD "NOT LOOK TO KANSAS FOR PROTECTION," 759, AND THAT
KANSAS WAS NOT "OBLIGED TO CONFER ANY RIGHTS ON THEM," 758.  THE TAX
EXEMPTION, SAID THE COURT, MUST LAST UNTIL THE INDIANS WERE "CLOTHED
WITH THE RIGHTS AND BOUND TO ALL THE DUTIES OF CITIZENS," 756.  A
SIMILAR RESULT WAS REACHED IN THE NEW YORK INDIANS, 5 WALL.  761,
DECIDED THE SAME DAY, WHERE THE STATE SOUGHT TO RAISE MONEY BY TAXES TO
BUILD ROADS IN INDIAN RESERVATIONS AND WHERE EXISTING TREATIES FORBADE
THE STATE'S BUILDING SUCH ROADS.  LATER, FOR A PERIOD OF TIME, INDIAN
LANDS HELD IN TRUST BY THE UNITED STATES WERE FOUND TO BE
CONSTITUTIONALLY TAX-EXEMPT ON THE THEORY THAT THEY WERE FEDERAL
INSTRUMENTALITIES, I.E., THAT THE LANDS WERE HELD BY THE UNITED STATES
FOR THE INDIANS, AND WERE THEREFORE NON-TAXABLE.  UNITED STATES V.
RICKERT, 188 U.S. 432.  IN TIME, THIS CONSTITUTIONAL CONCEPT WAS
EXPANDED TO GRANT TAX EXEMPTION TO THE INCOME DERIVED FROM INDIAN
LANDS, WHETHER TRIBALLY OR INDIVIDUALLY OWNED, EVEN WHEN THE PRIVILEGE
OF EXPLOITATION HAD BEEN GRANTED TO NON-INDIAN LESSEES.  FN4  THE
INSTRUMENTALITY CONCEPT ULTIMATELY RESULTED IN A DECISION EXEMPTING
INDIAN ESTATES FROM TAXATION.  CHILDERS V. BEAVER, SUPRA.  NONE OF
THESE CASES HELD, NOR HAS THIS COURT EVER DECIDED, THAT CONGRESSIONAL
RESTRICTION OF AN INDIAN'S INCOME CARRIED AN IMPLICATION OF ESTATE TAX
EXEMPTION. 

THE UNDERLYING PRINCIPLES ON WHICH THESE DECISIONS ARE BASED DO NOT
FIT THE SITUATION OF THE OKLAHOMA INDIANS.  ALTHOUGH THERE ARE REMNANTS
OF THE FORM OF TRIBAL SOVEREIGNTY, THESE INDIANS HAVE NO EFFECTIVE
TRIBAL AUTONOMY AS IN WORCESTER V. GEORGIA, SUPRA; AND, UNLIKE THE
INDIANS INVOLVED IN THE KANSAS INDIANS CASE, SUPRA, THEY ARE ACTUALLY
CITIZENS OF THE STATE WITH LITTLE TO DISTINGUISH THEM FROM ALL OTHER
CITIZENS EXCEPT FOR THEIR LIMITED PROPERTY RESTRICTIONS AND THEIR TAX
EXEMPTIONS.  FN5  THEIR LANDS ARE HELD IN FEE, NOT IN TRUST, AS IN THE
RICKERT CASE, AND THE DOCTRINE OF CONSTITUTIONAL IMMUNITY FROM TAXATION
FOR THE INCOME OF THEIR HOLDINGS ON THE FEDERAL INSTRUMENTALITY THEORY
HAS BEEN RENOUNCED, HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S.
376.  CHILDERS V. BEAVER, SUPRA, WAS IN EFFECT OVERRULED BY THE
MOUNTAIN PRODUCERS DECISION.  THE IMMUNITY FORMERLY SAID TO REST ON
CONSTITUTIONAL IMPLICATION CANNOT NOW BE RESURRECTED IN THE FORM OF
STATUTORY IMPLICATION. 

THE CASH AND SECURITIES OF WHICH THESE ESTATES ARE ALMOST ENTIRELY
COMPOSED WERE RESTRICTED BY THE ACT OF JANUARY 27, 1933.  FN6  UNLESS
THE TAX IMMUNITY IS GRANTED BY THE RESTRICTION CLAUSE ITSELF, THERE IS
NOT A WORD IN THE ACT WHICH EVEN REMOTELY SUGGESTS THAT CONGRESS MEANT
TO EXEMPT INDIANS' CASH AND SECURITIES FROM OKLAHOMA'S ESTATE TAXES. 
WE CONCLUDE THAT THIS ACT DOES NOT EXEMPT THE RESTRICTED PROPERTY FROM
TAXATION FOR TWO REASONS:  (1) THE LEGISLATIVE HISTORY OF THE ACT
REFUTES THE CONTENTION THAT AN EXEMPTION WAS INTENDED; AND (2)
APPLICATION OF THE NORMAL RULE AGAINST TAX EXEMPTION BY STATUTORY
IMPLICATION PREVENTS OUR READING SUCH AN IMPLICATION INTO THE ACT. 

THE 1933 ACT WAS INTENDED TO SERVE TWO PURPOSES RELEVANT TO THIS
CASE.  ONE WAS TO CONTINUE THE RESTRICTIONS ON INDIAN PROPERTY FOR THE
PURPOSE OF PROTECTING THE INDIANS FROM LOSS TO INDIVIDUALS WHO MIGHT
TAKE ADVANTAGE OF THEM; AND THE OTHER WAS TO PRESERVE THE STATUS OF
CERTAIN INDIAN LAND AS NON-TAXABLE UNTIL 1956.  SEE THE CONCURRING
OPINION OF MR. JUSTICE RUTLEDGE IN BOARD OF COMMISSIONERS V. SEBER, 318
U.S. 705, 719.  THIS ACT WAS BEFORE TWO CONGRESSES, THE 71ST AND THE
72D.  IT WAS THE SUBJECT OF EXHAUSTIVE DEBATE, AS WELL AS OF SEVERAL
COMMITTEE REPORTS, AND THERE IS NO INDICATION WHATEVER IN ALL THAT
DISCUSSION OF AN INTENTION TO EXEMPT INDIANS FROM ESTATE TAXES.  FN7 

THE BILL WAS SPONSORED BY OKLAHOMA CONGRESSMEN WHO SAID NOTHING WHICH
SUPPORTS THE IMPUTATION THAT THEY INTENDED TO DEPRIVE THEIR STATE OF
THIS INCOME.  IT WAS DESCRIBED BY ITS SPONSOR, CONGRESSMAN HASTINGS, AS
FOLLOWS: 

"YOU ASK ME WHAT THE BILL DOES.  IF THE MEMBERS OF CONGRESS
UNDERSTOOD THE BILL THERE WOULD NOT BE A VOTE AGAINST IT.  OIL HAS BEEN
STRUCK UNDERNEATH SOME OF THE LANDS ALLOTTED TO THE MEMBERS OF THESE
TRIBES.  SOME OF THESE FULLBLOOD ALLOTTEES WITHOUT BUSINESS EXPERIENCE,
NOW HAVE TO THEIR CREDIT $100,000, $200,000 AND, IT IS ESTIMATED, UP TO
$1,000,000.  SUPPOSE ONE OF THESE INDIAN ALLOTTEES DIED AFTER APRIL 26,
1931.  THEN THIS MONEY MUST BE TURNED OVER TO THESE HEIRS WITHOUT
SUPERVISION.  DO YOU WANT TO DO THAT?  IS THERE A MAN ON THE FLOOR OF
THE HOUSE WHO WOULD WANT TO DO THAT?"  FN8  THIS PURPOSE, AND NONE
OTHER, IS REITERATED THROUGHOUT THE DISCUSSION - NOT A WORD OF AN
INTENTION TO EXPAND TAX EXEMPTIONS WAS SPOKEN BY ANY CONGRESSMAN. 

THE LEGISLATIVE HISTORY NOT ONLY FAILS TO GIVE ANY AFFIRMATIVE
SUPPORT TO SUCH AN IMPLICATION BUT EXPRESSLY NEGATIVES THAT INTENT. 
THE PRINCIPAL CLAUSE OF THE BILL DEALING WITH TAXATION IS THAT WHICH
CONTINUES A LIMITED LAND TAX-EXEMPTION FOR TWENTY-FIVE YEARS.  ON TWO
SEPARATE OCCASIONS, IN TWO CONGRESSES, THE BILL'S SPONSOR ASSURED THE
HOUSE OF REPRESENTATIVES:  "THIS (BILL) ONLY APPLIES TO RESTRICTED AND
TAX-EXEMPT LAND.  THIS DOES NOT INCREASE TAX-EXEMPT LAND AT ALL."  FN9
SUCH A BILL, CAREFULLY DRAWN SO AS NOT TO WIDEN TAX EXEMPTIONS FOR
LAND, AND WITHOUT A WORD OF SUCH INTENT IN ITS LEGISLATIVE HISTORY,
CANNOT BE SUPPOSED BY IMPLICATION TO HAVE PROHIBITED ESTATE TAXES.  IF
THERE COULD BE ANY DOUBT OF THIS PROPOSITION IT IS SURELY REMOVED BY A
LATER CLAUSE OF THE 1933 STATUTE WHICH PROVIDES THAT ALL MINERALS
EXTRACTED FROM THE LAND SHOULD BE SUBJECT TO STATE TAXATION.  FN10
CONGRESS COULD NOT HAVE INTENDED THAT THE MINERALS THEMSELVES SHOULD BE
SUBJECT TO TAXATION, BUT THAT THE PROCEEDS OF THEIR SALE, EVEN FURTHER
REMOVED FROM THE LAND ITSELF, SHOULD BE IMMUNE. 

THIS COURT HAS REPEATEDLY SAID THAT TAX EXEMPTIONS ARE NOT GRANTED BY
IMPLICATION.  UNITED STATES TRUST CO. V. HELVERING, 307 U.S. 57, 60. 
IT HAS APPLIED THAT RULE TO TAXING ACTS AFFECTING INDIANS AS TO ALL
OTHERS.  AS WAS SAID OF AN EXCISE TAX ON TOBACCO PRODUCED BY THE
CHEROKEE INDIANS IN 1870, "IF THE EXEMPTION HAD BEEN INTENDED, IT WOULD
DOUBTLESS HAVE BEEN EXPRESSED."  CHEROKEE TOBACCO, 11 WALL.  616, 620. 
IN HOLDING THE INCOME TAX APPLICABLE TO INDIANS, THE COURT SAID, "THE
TERMS OF THE 1928 REVENUE ACT ARE VERY BROAD, AND NOTHING THERE
INDICATES THAT INDIANS ARE TO BE EXCEPTED.  ...  IF EXEMPTION EXISTS IT
MUST DERIVE PLAINLY FROM AGREEMENTS WITH THE CREEKS OR SOME ACT OF
CONGRESS DEALING WITH THEIR AFFAIRS."  SUPERINTENDENT V. COMMISSIONER,
SUPRA, 420.  IF CONGRESS INTENDS TO PREVENT THE STATE OF OKLAHOMA FROM
LEVYING A GENERAL NON-DISCRIMINATORY ESTATE TAX APPLYING ALIKE TO ALL
ITS CITIZENS, IT SHOULD SAY SO IN PLAIN WORDS.  SUCH A CONCLUSION
CANNOT REST ON DUBIOUS INFERENCES.  "NONTAXABILITY AND RESTRICTION UPON
ALIENATION ARE DISTINCT THINGS," SUPERINTENDENT V. COMMISSIONER, SUPRA,
421, AND WHEN CONGRESS WANTS TO REQUIRE BOTH NONALIENABILITY AND
NONTAXABILITY IT CAN, AS IT HAS SO OFTEN DONE, SAY SO EXPLICITLY. 
FN11 

IT IS TRUE THAT OUR INTERPRETATION OF THE 1933 STATUTE MUST BE IN
ACCORD WITH THE GENEROUS AND PROTECTIVE SPIRIT WHICH THE UNITED STATES
PROPERLY FEELS TOWARD ITS INDIAN WARDS, BUT WE CANNOT ASSUME THAT
CONGRESS WILL CHOOSE TO AID THE INDIANS BY PERMANENTLY GRANTING THEM
IMMUNITY FROM TAXES WHICH THEY ARE AS ABLE AS OTHER CITIZENS TO PAY. 
IT RUNS COUNTER TO ANY TRADITIONAL CONCEPT OF THE GUARDIAN AND WARD
RELATIONSHIP TO SUPPOSE THAT A WARD SHOULD BE EXEMPTED FROM TAXATION BY
THE NATURE OF HIS STATUS, AND THE FACT THAT THE FEDERAL GOVERNMENT IS
THE GUARDIAN OF ITS INDIAN WARD IS NO REASON, BY ITSELF, WHY A STATE
SHOULD BE PRECLUDED FROM TAXING THE ESTATE OF THE INDIAN.  WE HAVE HELD
THAT THE INDIANS, LIKE ALL OTHER CITIZENS, MUST PAY FEDERAL INCOME
TAXES.  SUPERINTENDENT V. COMMISSIONER, SUPRA, 421.  "WARDSHIP WITH
LIMITED POWER OVER HIS PROPERTY" DID NOT THERE "WITHOUT MORE RENDER
(THE INDIAN) IMMUNE FROM THE COMMON BURDEN."  A FEDERAL COURT HAS HELD,
IN A WELL-REASONED DECISION DEFENDED BEFORE US BY THE SOLICITOR GENERAL
OF THE UNITED STATES, WHO IS NOT A PARTY TO THIS ACTION, THAT AN
INDIAN'S ESTATE IS SUBJECT TO THE FEDERAL ESTATE TAX.  LANDMAN V.
COMMISSIONER, 123 F.2D 787.  FN12  CONGRESS CANNOT HAVE INTENDED TO
IMPOSE FEDERAL INCOME AND INHERITANCE TAXES ON THE INDIANS AND AT THE
SAME TIME EXEMPT THEM BY IMPLICATION FROM SIMILAR STATE TAXES. 
RECOGNIZING THAT EQUALITY OF PRIVILEGE AND EQUALITY OF OBLIGATION
SHOULD BE INSEPARABLE ASSOCIATES, WE HAVE RECENTLY SWEPT AWAY MANY OF
THE MEANS OF TAX FAVORITISM.  GRAVES V. NEW YORK EX REL. O'KEEFE, 306
U.S. 466, PERMITTED STATES TO IMPOSE INCOME TAXES UPON GOVERNMENT
EMPLOYEES, AND HELVERING V. GERHARDT, 304 U.S. 405, PERMITTED THE
FEDERAL GOVERNMENT TO IMPOSE TAXES ON STATE EMPLOYEES.  O'MALLEY V.
WOODROUGH, 307 U.S. 277, OVERRULED A PREVIOUS DECISION WHICH HELD THAT
JUDGES SHOULD NOT PAY TAXES JUST AS OTHER CITIZENS, AND HELVERING V.
MOUNTAIN PRODUCERS CORP., SUPRA, REPUDIATED FORMER DECISIONS SERIOUSLY
LIMITING STATE AND FEDERAL POWER TO TAX.  SEE ALSO METCALF & EDDY V.
MITCHELL, 269 U.S. 514, AND JAMES V. DRAVO CONTRACTING CO., 302 U.S.
134.  THE TREND OF THESE CASES SHOULD NOT NOW BE REVERSED. 

WHAT HAS BEEN SAID REQUIRES THE CONCLUSION THAT THE CASH AND
SECURITIES ARE NOT EXEMPTED BY ANY EXISTING LEGISLATION FROM STATE
ESTATE TAXATION, AND THIS IS LIKEWISE TRUE OF THE PERSONAL PROPERTY IN
TWO OF THESE ESTATES. 

THE VALIDITY OF THE TAXES ON THE TRANSFER OF THE LAND PRESENTS A
SOMEWHAT DIFFERENT PROBLEM.  SOME OF THESE LANDS ARE EXEMPT FROM DIRECT
TAXATION BY VIRTUE OF EXPLICIT CONGRESSIONAL COMMAND.  THE ACT OF MAY
10, 1928, 45 STAT. 495, FOR EXAMPLE, PROVIDES THAT INDIANS OF A CLASS
WHICH INCLUDES THE THREE DECEASED SHOULD SELECT UP TO 160 ACRES OF HIS
ALLOTTED, INHERITED OR DEVISED RESTRICTED LANDS, WHICH "SHALL REMAIN
EXEMPT FROM TAXATION WHILE THE TITLE REMAINS IN THE INDIAN DESIGNATED
...  OR IN ANY FULLBLOOD INDIAN HEIR OR DEVISEE," WHILE ALL OTHER
RESTRICTED LANDS ARE MADE SUBJECT TO TAXATION BY OKLAHOMA.  THE STATE
ARGUES THAT CONGRESSIONAL EXEMPTION OF THE LAND FROM DIRECT STATE
TAXATION DOES NOT EXEMPT THE LAND FROM AN ESTATE TAX, BECAUSE OF THE
PRINCIPLES ANNOUNCED IN UNITED STATES TRUST CO. V. HELVERING, SUPRA.  A
MAJORITY OF THE COURT CONCLUDES THAT THIS PRINCIPLE DOES NOT APPLY TO
INDIAN LANDS SPECIFICALLY EXEMPTED FROM DIRECT TAXATION.  WE THEREFORE
HOLD THAT THE TRANSFER OF THOSE LANDS WHICH CONGRESS HAS EXEMPTED FROM
DIRECT TAXATION BY THE STATE ARE ALSO EXEMPTED FROM ESTATE TAXES. 

TO SUMMARIZE: 

IN NO. 623, THE TRANSFER OF THE CASH AND SECURITIES IS TAXABLE, THE
TRANSFER OF THE HOMESTEAD AND OTHER ALLOTTED LAND, EXEMPTED UNDER THE
ACT OF MAY 10, 1928, IS NOT.  THE 43 ACRES PURCHASED FOR THE INTESTATE
FROM HER RESTRICTED FUNDS WAS TAXABLE AT THE TIME OF HER DEATH, SHAW V.
GIBSON-ZAHNISER OIL CORP., 276 U.S. 575, AND HENCE IS SUBJECT TO THE
ESTATE TAX. 

IN NO. 624, THE TRANSFER OF THE CASH AND SECURITIES AND THE PERSONAL
PROPERTY IS TAXABLE.  THE DECEASED DIED BEFORE THE ACT OF MAY 10, 1928,
TOOK EFFECT, BUT HER 240-ACRE HOLDING WAS SPECIFICALLY EXEMPT FROM
DIRECT TAXATION AT THE TIME OF HER DEATH UNDER SEC. 19 OF THE ACT OF
APRIL 26, 1906, AND THE TRANSFER OF LANDS IS THEREFORE NOT TAXABLE. 

IN NO. 625, THE SAME RESULT AS IN NO. 623 FOLLOWS FOR THE RESTRICTED
LANDS WHICH WERE APPROPRIATELY SELECTED FOR EXEMPTION UNDER THE ACT OF
MAY 10, 1928, AND FOR THE PERSONAL PROPERTY, CASH, AND SECURITIES.  THE
JUDGMENT AND THE INSURANCE POLICY ARE TO BE TREATED AS IN A CLASS WITH
THE PERSONAL PROPERTY, CASH, AND SECURITIES.  IT IS CONCEDED THAT THE
160 ACRES OF INHERITED PROPERTY HELD BY THE DECEASED WAS TAXABLE AT THE
TIME OF HIS DEATH BECAUSE IN EXCESS OF THE EXEMPTION PERMITTED BY THE
1928 ACT, AND THIS LAND IS, THEREFORE, SUBJECT TO THE ESTATE TAX. 
WHILE THE STATUS OF THE DECEASED'S FOUR-FIFTHS INTEREST IN A 40-ACRE
TRACT IS NOT CLEAR FROM THE RECORD, NO SHOWING HAS BEEN MADE THAT IT IS
NOT TAXABLE. 

THE GOVERNMENT IS ENTITLED TO RECOVERY OF THE ESTATE TAX PAID ON THE
TRANSFER OF LANDS EXEMPT FROM DIRECT TAXATION, AND TO NO MORE.  THE
JUDGMENT BELOW IS VACATED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  IT IS SO
ORDERED. 

FN1  THE TAXES ASSESSED ON THIS PROPERTY TOTALLED APPROXIMATELY
$37,000.  THE PROPERTIES OF WHICH THE ESTATES WERE COMPOSED WAS AS
FOLLOWS: 

NO. 623:  APPROXIMATELY 70 ACRES OF RESTRICTED ALLOTTED LAND; 40
ACRES OF LAND PURCHASED FROM RESTRICTED FUNDS; RESTRICTED CASH AND
SECURITIES.  ASSESSED VALUE:  $250,000. 

NO. 624:  240 ACRES OF RESTRICTED ALLOTTED LAND; PERSONAL PROPERTY;
RESTRICTED CASH AND SECURITIES.  ASSESSED VALUE:  $677,000. 

NO. 625:  160 ACRES OF ALLOTTED RESTRICTED LAND; 160 ACRES OF
INHERITED RESTRICTED LAND; A FOUR-FIFTHS INTEREST IN 40 ACRES; AN
AUTOMOBILE; MISCELLANEOUS PROPERTY, AND INSURANCE; RESTRICTED CASH AND
SECURITIES.  ASSESSED VALUE:  $318,000. 

FN2 CH. 162, SESS. LAWS, 1915; CH. 66, ART. 5, SESS. LAWS, 1935. 

FN3  IT IS UNNECESSARY TO CONSIDER THE STATE'S ARGUMENT THAT CONGRESS
IS WITHOUT POWER TO EXEMPT THESE ESTATES FROM TAXATION.  THIS ISSUE IS
NOT FORECLOSED BY BOARD OF COMMISSIONERS V. SEBER, 318 U.S. 705, SINCE
THERE WE DECIDED NO MORE THAN THAT CONGRESS MIGHT AUTHORIZE THE
EXEMPTION OF CERTAIN INDIAN LANDS FROM TAXATION BECAUSE OF AN HISTORIC
POLICY IN RESPECT TO THOSE LANDS.  CF. MCCURDY V. UNITED STATES, 246
U.S. 263, 269. 

CHOATE V. TRAPP, 224 U.S. 665, HOLDING THAT UNDER CERTAIN
CIRCUMSTANCES THE UNITED STATES COULD NOT WITHDRAW A TAX EXEMPTION ONCE
ASSURED, HAS NO BEARING ON THE INSTANT PROBLEM SINCE IT IS CONCEDED
THAT THE QUESTION HERE IS ENTIRELY ONE OF WHAT CONGRESS HAS IN FACT
DIRECTED. 

FN4  CHOCTAW, O. & G.R. CO. V. HARRISON, 235 U.S. 292; INDIAN
TERRITORY OIL CO. V. OKLAHOMA, 240 U.S. 522; JAYBIRD MINING CO. V.
WEIR, 271 U.S. 609; HOWARD V. GYPSY OIL CO., 247 U.S. 503; LARGE OIL
CO. V. HOWARD, 248 U.S. 549; GILLESPIE V. OKLAHOMA, 257 U.S. 501. 

FN5  UNDER THE ACTS OF JUNE 18, 1934, 48 STAT. 984, AND JUNE 26,
1936, 49 STAT. 1967, 25 U.S.C. SEC. 501 ET SEQ., SOME PROGRESS HAS BEEN
MADE IN THE RESTORATION OF TRIBAL GOVERNMENT.  COHEN, HANDBOOK OF
FEDERAL INDIAN LAW, 455, 129-133, 142-143. 

FN6  47 STAT. 777. 

"  ...  THAT ALL FUNDS AND OTHER SECURITIES NOW HELD BY OR WHICH MAY
HEREAFTER COME UNDER THE SUPERVISION OF THE SECRETARY OF THE INTERIOR,
BELONGING TO AND ONLY SO LONG AS BELONGING TO INDIANS OF THE FIVE
CIVILIZED TRIBES IN OKLAHOMA OF ONE-HALF OR MORE INDIAN BLOOD, ENROLLED
OR UNENROLLED, ARE HEREBY DECLARED TO BE RESTRICTED  ...  PROVIDED,
THAT WHERE THE ENTIRE INTEREST IN ANY TRACT OF RESTRICTED AND TAX
EXEMPT LAND BELONGING TO MEMBERS OF THE FIVE CIVILIZED TRIBES IS
ACQUIRED BY INHERITANCE, DEVISE, GIFT, OR PURCHASE, WITH RESTRICTED
FUNDS, BY OR FOR RESTRICTED INDIANS, SUCH LANDS SHALL REMAIN RESTRICTED
AND TAX-EXEMPT DURING THE LIFE OF AND AS LONG AS HELD BY SUCH
RESTRICTED INDIANS, BUT NOT LONGER THAN APRIL 26, 1956,  ...  AND
PROVIDED FURTHER, THAT ALL MINERALS INCLUDING OIL AND GAS, PRODUCED
FROM SAID LAND SO ACQUIRED SHALL BE SUBJECT TO ALL STATE AND FEDERAL
TAXES AS PROVIDED IN SECTION 3 OF THE ACT APPROVED MAY 10, 1928(45
STAT. L. 495)." 

FN7  ELEMENTS OF THE 1933 STATUTE WERE INCLUDED IN H.R. 15603, 71ST
CONGRESS.  THE BILL WAS RECOMMITTED TO THE COMMITTEE ON INDIAN AFFAIRS
FOR FURTHER CONSIDERATION, 74 CONG. REC. 3956-3958.  THIS DISCUSSION
INCLUDES A REPORT OF THE DEPARTMENT OF THE INTERIOR RECOMMENDING
LEGISLATION SUBSTANTIALLY SIMILAR TO THAT FINALLY ENACTED IN 1933.  THE
HOUSE LATER AMENDED THE PROVISIONS OF ITS OWN BILL INTO S. 6169.  74
CONG. REC. 7219-7222.  THE BILL AS AMENDED WAS NOT APPROVED BY THE
SENATE.  THE PLAN WAS RE-INTRODUCED IN THE 72D CONGRESS AS H.R. 8750
AND WAS DISCUSSED BY THE HOUSE AT 75 CONG. REC. 8163-8170, AND BY THE
SENATE AT 76 CONG. REC. 2200.  THIS BILL WAS PASSED BY THE 72D CONGRESS
AND BECAME THE STATUTE UNDER CONSIDERATION. 

FN8  75 CONG. REC. 8163. 

FN9  74 CONG. REC. 7222 AND, SIMILARLY, 75 CONG. REC. 8170. 

FN10  SEE THE LAST CLAUSE OF THE STATUTE AS SET FORTH IN NOTE 6,
SUPRA. 

FN11  SEE, FOR EXAMPLES, ACT OF JULY 1, 1898, 30 STAT. 567, TRACT
MADE "INALIENABLE AND NONTAXABLE"; ACT OF MARCH 1, 1901, 31 STAT. 861,
TRACT MADE "NONTAXABLE AND INALIENABLE"; ACT OF JUNE 30, 1902, 32 STAT.
500, TRACT TO REMAIN "NONTAXABLE, INALIENABLE, AND FREE FROM ANY
INCUMBRANCE"; ACT OF APRIL 26, 1906, 34 STAT. 137, "ALL LANDS UPON
WHICH RESTRICTIONS ARE REMOVED SHALL BE SUBJECT TO TAXATION, AND THE
OTHER LANDS SHALL BE EXEMPT FROM TAXATION."  CF. FOR SPECIAL TREATMENT
OF THE QUAPAW INDIANS THE ACT OF APRIL 17, 1937, 50 STAT. 68. 

FN12  CERT. DEN., 315 U.S. 810.  THE DEPARTMENT OF THE INTERIOR IN
THE LANDMAN CASE MADE SUBSTANTIALLY THE SAME ARGUMENT IT MAKES HERE
AGAINST TAXATION OF INDIANS' ESTATES.  IT EMPHASIZES THAT THE DECISION
OF THE CIRCUIT COURT OF APPEALS WOULD LEAD TO SIMILAR TAXATION BY
STATES.  THE SOLICITOR GENERAL, OPPOSING THE DEPARTMENT OF INTERIOR IN
THE LANDMAN CASE, INSISTED THAT UNDER SUPERINTENDENT V. COMMISSIONER,
295 U.S. 418, AND CHOTEAU V. BURNET, 283 U.S. 691, THE INDIANS' ESTATES
SHOULD BE SUBJECTED TO TAXATION; AND THAT EVEN IF THE INDIANS' LANDS
WERE EXEMPT FROM DIRECT TAXATION, THE ESTATE TAX SHOULD BE UPHELD AS AN
EXCISE TAX, INDIRECT IN ITS NATURE, CITING UNITED STATES TRUST CO. V.
HELVERING, 307 U.S. 57; PLUMMER V. COLER, 178 U.S. 115; GREINER V.
LEWELLYN, 258 U.S. 384.  IN OTHER WORDS, THE SOLICITOR GENERAL IN
SEEKING TO UPHOLD THE VALIDITY OF A FEDERAL ESTATE TAX AS APPLIED TO
INDIAN ESTATES OPPOSED THE ARGUMENT WHICH THE DEPARTMENT OF THE
INTERIOR MADE THEN AND WHICH IT MAKES NOW, THE ONLY DIFFERENCE BEING
THAT IN THE INSTANT CASE THE DEPARTMENT OF THE INTERIOR IS SEEKING TO
INVALIDATE A STATE INSTEAD OF A FEDERAL TAX. 

CONGRESS HAS PASSED LAWS UNDER WHICH INDIANS HAVE BECOME FULL-FLEDGED
CITIZENS OF THE STATE OF OKLAHOMA.  FN13  OKLAHOMA SUPPLIES FOR THEM
AND THEIR CHILDREN SCHOOLS, ROADS, COURTS, POLICE PROTECTION AND ALL
THE OTHER BENEFITS OF AN ORDERED SOCIETY.  CITIZENS OF OKLAHOMA MUST
PAY FOR THESE BENEFITS.  IF SOME PAY LESS, OTHERS MUST PAY MORE.  SINCE
OKLAHOMA HAS BECOME A STATE, IT HAS BEEN AUTHORITATIVELY STATED THAT
TAX LOSSES RESULTING FROM TAX IMMUNITY OF INDIANS HAVE TOTALLED MORE
THAN $125,000,000, A SUM ONLY SLIGHTLY LESS THAN THE BONDED
INDEBTEDNESS OF THE STATE.  FN14  IF CONGRESS INTENDED TO RELIEVE THESE
INDIANS FROM THE BURDEN OF A STATE INHERITANCE TAX AS A CONSEQUENCE OF
OUR NATIONAL POLICY TOWARD INDIANS, THERE IS STILL NO REASON WHY WE
SHOULD IMPLY THAT IT INTENDED THE BURDEN TO BE BORNE SO HEAVILY BY ONE
STATE.  BUT THERE IS A COMPLETE ABSENCE OF ANY EVIDENCE OF
CONGRESSIONAL BELIEF THAT THESE EXEMPTIONS ARE REQUIRED ON EQUITABLE
GROUNDS, NO MATTER ON WHICH SOVEREIGN THE BURDEN FALLS.  HERE IS A TAX
BASED SOLELY ON ABILITY TO PAY.  FN15  "ONLY THE SAME DUTIES ARE
EXACTED AS FROM OUR OWN CITIZENS.  THE BURDEN MUST REST SOMEWHERE. 
REVENUE IS INDISPENSABLE TO MEET THE PUBLIC NECESSITIES.  IS IT
UNREASONABLE THAT THIS SMALL PORTION OF IT SHALL REST UPON THESE
INDIANS?"  CHEROKEE TOBACCO, SUPRA, P. 621. 

FN13  IT MUST NOT BE ASSUMED THAT THE OKLAHOMA INDIANS ARE ALL UNABLE
TO PAY ESTATE TAXES.  THE ESTATES OF THE THREE INDIANS HERE INVOLVED,
AS HAS BEEN NOTED, TOTAL WELL OVER $1,200,000.  OIL AND GAS RECEIPTS OF
THE FIVE CIVILIZED TRIBES FROM 1904 TO 1937 WERE IN EXCESS OF ONE
HUNDRED MILLION DOLLARS.  HEARING ON S. RES. 168, SENATE COMMITTEE ON
INDIAN AFFAIRS, 75TH CONG., 3D SESS., P. 36.  THE OSAGES IN THE SAME
PERIOD RECEIVED $261,000,000.  P. 34.  ANNUAL PER CAPITA INCOME FOR THE
OSAGE TRIBE AS SHOWN BY A CAREFUL STUDY MADE IN 1928 WAS $19,119.  THE
PROBLEM OF INDIAN ADMINISTRATION, INSTITUTE FOR GOVERNMENT RESEARCH,
LEWIS MERIAM, DIRECTOR, CHAPTER 10, GENERAL ECONOMIC CONDITIONS, 430,
450.  2,826 OSAGE INDIANS ARE REPORTED TO OWN TRIBAL AND INDIVIDUAL
PROPERTY VALUED AT $31,968,000.  P. 443.  THE ECONOMIC STATUS OF THE
OSAGES IS DISCUSSED IN MCCURDY V. UNITED STATES, 246 U.S. 263, 265. 

FOR A DISCUSSION OF THE RESPECTED POSITION OF INDIANS IN OKLAHOMA,
SEE THE DISSENTING OPINION OF JUDGE WILLIAMS, BOARD OF COMMISSIONERS V.
SEBER, 130 F.2D 663, 681-683.  THE 1933 ACT DISCUSSED ABOVE WAS
SPONSORED IN THE HOUSE OF REPRESENTATIVES BY CONGRESSMAN HASTINGS OF
OKLAHOMA, WHO WAS HIMSELF OF INDIAN DESCENT. 

FN14  HEARINGS BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS, NOTE
13, SUPRA, P. 4. 

FN15  "THE VIEW OF THE SURVEY STAFF IS THAT THE INDIANS MUST BE
EDUCATED TO PAY TAXES JUST AS THEY MUST BE EDUCATED TO DO OTHER
THINGS.  THE TAXES IMPOSED UPON THEM MUST ALWAYS BE PROPERLY RELATED TO
THEIR CAPACITY TO PAY.  FOR THEM AN INCOME TAX WOULD BE INFINITELY
BETTER THAN A GENERAL PROPERTY TAX BECAUSE OF ITS DIRECT RELATIONSHIP
TO THEIR CAPACITY TO PAY.  THE RETURNS FROM SUCH A TAX WOULD OBVIOUSLY
BE EXTREMELY SMALL AT THE OUTSET, BUT THEY WOULD INCREASE WITH THE
INCREASING PRODUCTIVITY OF THE INDIANS."  THE PROBLEM OF INDIAN
ADMINISTRATION, NOTE 13, SUPRA, 478; AND SEE ALSO 43, 98. 

MR. JUSTICE DOUGLAS: 

I CONCUR IN THE RESULT AND IN THE DISPOSITION OF THE CASE.  WHILE I
AGREE THAT TRANSFERS OF THE RESTRICTED INDIAN LANDS ARE NOT SUBJECT TO
OKLAHOMA'S ESTATE TAX, I TAKE THE CONTRARY VIEW AS RESPECTS THE FUNDS
AND SECURITIES COVERED BY THE ACT OF JANUARY 27, 1933, 47 STAT. 777. 
IN MY OPINION TRANSFERS OF THOSE FUNDS AND SECURITIES ARE SUBJECT TO
THE TAX FOR THE TWO REASONS SET FORTH IN THE OPINION OF THE COURT. 

MR. JUSTICE MURPHY, DISSENTING IN PART:    I DISSENT BECAUSE THE
OPINION OF THE COURT REJECTS A CENTURY AND A HALF OF HISTORY.  WE ARE
NOT HERE DEALING WITH MERE PROPERTY OR INCOME THAT IS TAX-EXEMPT.  THIS
IS NOT THE ORDINARY CASE OF GOVERNMENT AND ITS CITIZENS, OR A GROUP OF
CITIZENS WHO SEEK TO AVOID THEIR OBLIGATIONS.  OUR CONCERN HERE IS
ENTIRELY DIFFERENT.  IT IS WITH A PEOPLE WHO ARE OUR WARDS AND TOWARDS
WHOM CONGRESS HAS FASHIONED A POLICY OF PROTECTION DUE TO OBLIGATIONS
WELL KNOWN TO ALL OF US.  IT RESTS WITH CONGRESS TO CHOOSE WHEN WE ARE
DONE WITH THAT TRUSTEESHIP.  MEANWHILE IT IS OUR OBLIGATION TO
INTERPRET IN THE LIGHT OF THE HISTORY OF THAT RELATIONSHIP ALL
LEGISLATION WHICH CONGRESS HAS ENACTED TO CARRY OUT ITS INDIAN POLICY. 
NORMALLY IT IS TRUE THAT STRONG CONSIDERATIONS OF FISCAL AND SOCIAL
POLICY VIEW TAX EXEMPTIONS WITH A HOSTILE EYE.  SUCH EXEMPTIONS ARE NOT
TO BE LIGHTLY IMPLIED, AND EVERY REASONABLE IMPLICATION IN CONSTRUING
LEGISLATION IS TO BE MADE AGAINST THEIR GRANT.  BUT THIS GENERAL
DOCTRINE AGAINST TAX EXEMPTION IS IRRELEVANT IN CONSIDERING THE TAXING
POWER OF A STATE IN RELATION TO INDIANS.  FOR AS TO THEM A TOTALLY
DIFFERENT PRINCIPLE COMES INTO OPERATION, NAMELY, THE SPECIAL STATUS OF
INDIANS DURING THE WHOLE COURSE OF OUR CONSTITUTIONAL AND LEGAL
HISTORY.  THERE CAN BE NO DOUBT OF CONGRESS' PLENARY POWER TO EXEMPT
INDIANS AND THEIR PROPERTY FROM ALL FORMS OF STATE TAXATION.  SUCH
POWER EXISTS TO PREVENT IMPAIRMENT OF THE MANNER IN, OR MEANS BY WHICH
CONGRESS EFFECTUATES ITS INDIAN POLICY, AT LEAST SO LONG AS CONGRESS
HAS NOT DETERMINED THAT THE INTERESTS OF THE INDIANS REQUIRE THEIR
COMPLETE RELEASE FROM TUTELAGE OR THE FINAL TERMINATION OF THE UNITED
STATES' GUARDIANSHIP OVER THEM.  BOARD OF COMMISSIONERS V. SEBER, 318
U.S. 705; CF. TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286, 315-16;
BRADER V. JAMES, 246 U.S. 88, 96; UNITED STATES V. MCGOWAN, 302 U.S.
535, 538.  SEE UNITED STATES V. SANDOVAL, 231 U.S. 28, 45-47.  TO DENY
SUCH CONSTITUTIONAL POWER IS TO DENY THE PRESUPPOSITION OF ALL
LEGISLATION RELATING TO INDIANS AS WELL AS AN UNBROKEN LINE OF
DECISIONS ON INDIAN LAW IN THIS COURT AND ALL THAT UNDERLIES THEM. 
THIS COURSE OF LEGISLATION AND ADJUDICATION MAY BE FAIRLY SUMMARIZED AS
RECOGNIZING THE SPECIAL RELATION OF INDIANS TOWARD THE UNITED STATES
AND THE EXCLUSION OF STATE POWER WITH RELATION TO THEM, EXCEPT IN SO
FAR AS THE FEDERAL GOVERNMENT HAS ACTUALLY RELEASED TO THE STATE
GOVERNMENTS ITS CONSTITUTIONAL SUPREMACY OVER THIS SPECIAL FIELD. 
THEREFORE, SO FAR AS THE POWER OF A STATE TO TAX INDIAN PROPERTY IS
CONCERNED, THE ORDINARY RULE OF TAX EXEMPTION IS REVERSED; A STATE MUST
MAKE AN AFFIRMATIVE SHOWING OF A GRANT BY CONGRESS OF THE WITHDRAWAL OF
THE IMMUNITY OF INDIAN PROPERTY FROM STATE TAXATION.  THIS IS SO
BECAUSE IT IS INDIAN PROPERTY AND BECAUSE INDIANS STAND IN A SPECIAL
RELATION TO THE FEDERAL GOVERNMENT FROM WHICH THE STATES ARE EXCLUDED
UNLESS THE CONGRESS HAS MANIFESTED A CLEAR PURPOSE TO TERMINATE SUCH AN
IMMUNITY AND ALLOW STATES TO TREAT INDIANS AS PART OF THE GENERAL
COMMUNITY. 

CONGRESS HAS MANIFESTED NO SUCH PURPOSE WITH REGARD TO THE ESTATES OF
THE DECEASED INDIANS BEFORE US.  ON THE CONTRARY, THOSE INDIANS WERE
SUBJECT TO FEDERAL CONTROL.  FN1  MOST OF THEIR ALLOTTED LANDS WERE
EXPRESSLY EXEMPT FROM TAXATION, AND, AS THE OPINION OF THE COURT
RECOGNIZES, THIS REMOVED THEM FROM THE OPERATION OF OKLAHOMA'S ESTATE
TAX.  FN2  BUT APART FROM THESE EXPRESS EXEMPTIONS, THE BULK OF THE
PROPERTIES IN THE THREE ESTATES WERE RESTRICTED AGAINST ALIENATION AND
ENCUMBRANCE BY VARIOUS ACTS OF CONGRESS.  FN3  HISTORY, AS WELL AS
STATEMENTS OF CONGRESS ITSELF, FN4  LEAVE NO DOUBT THAT PROPERTY SO
RESTRICTED IS BEYOND THE TAXING POWER OF THE STATES, UNLESS AND UNTIL
CONGRESS GIVES ITS CONSENT.  IN OTHER WORDS RESTRICTION IS TANTAMOUNT
TO IMMUNITY FROM STATE TAXATION.  THAT WAS THE BASIS OF DECISION IN
CHOCTAW, O. & G.R. CO. V. HARRISON, 235 U.S. 292; INDIAN TERRITORY OIL
CO. V. OKLAHOMA, 240 U.S. 522; JAYBIRD MINING CO. V. WEIR, 271 U.S.
609; HOWARD V. GIPSY OIL CO., 247 U.S. 503; LARGE OIL CO. V. HOWARD,
248 U.S. 549; GILLESPIE V. OKLAHOMA, 257 U.S. 501.  IN ALL THOSE CASES
A NON-INDIAN LESSEE OF RESTRICTED INDIAN LANDS WAS HELD IMMUNE FROM
STATE TAXATION OF VARIOUS KINDS BECAUSE, AND ONLY BECAUSE, THE LANDS
THEMSELVES AND THE LEASING OF THEM WERE HELD TO BE IMMUNE FROM
TAXATION, AND THIS IN TURN BECAUSE THEY WERE THE LANDS OF INDIANS HELD
IN GOVERNMENT TUTELAGE, WHO WERE PERMITTED TO LEASE THE LANDS ONLY WITH
THE APPROVAL OF THE SECRETARY OF THE INTERIOR.  THIS IMMUNITY FOR
LESSEES WAS WITHDRAWN BY HELVERING V. MOUNTAIN PRODUCERS CORP., 303
U.S. 376, WHICH OVERRULED GILLESPIE V. OKLAHOMA, SUPRA.  CF. THE
DISSENTING OPINIONS IN BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393. 
IN NEITHER THE CORONADO CASE NOR IN THE MOUNTAIN PRODUCERS CASE WAS
THERE ANY CONTENTION THAT THE LAND IN THE HANDS OF THE LESSORS WAS
SUBJECT TO TAXATION.  THAT WAS RECOGNIZED AND ACCEPTED AS CORRECT.  THE
POINT WAS THAT EVEN THOUGH THE LAND WAS TAX IMMUNE IN THE HANDS OF THE
LESSOR, THE LESSOR'S IMMUNITY DID NOT EXTEND TO THE LESSEE WHO HAD NO
PERSONAL IMMUNITY AND WHO ACQUIRED THE LAND FOR HIS OWN PURPOSES AND
MADE A PROFIT FROM IT.  IN OTHER WORDS, THE WITHDRAWAL OF IMMUNITY FROM
A NON-INDIAN LESSEE OF RESTRICTED INDIAN LAND RESTS UPON THE REMOTENESS
OF THE EFFECT OF THAT TAXATION UPON SUCH INDIAN PROPERTY, CF. GRAVES V.
NEW YORK EX REL. O'KEEFE, 306 U.S. 466, NOT UPON A NOTION THAT CONGRESS
DID NOT INTEND BY IMPOSING RESTRICTIONS TO PROHIBIT STATE TAXATION OF
THE INTEREST OF INDIANS IN THEIR RESTRICTED PROPERTY, NOR UPON THE
SUPPOSITION THAT CONGRESS LACKS POWER TO DO SO. CONGRESS PLAINLY HAS
POWER TO IMPLEMENT ITS INDIAN POLICY BY FORBIDDING STATE TAXATION TO
BURDEN THE INTEREST OF AN INDIAN IN HIS PROPERTY.  CF. SHAW V. GIBSON
ZAHNISER OIL CORP., 276 U.S. 575; BOARD OF COMMISSIONERS V. SEBER, 318
U.S. 705.  IT EXERCISES THAT POWER SIMPLY BY IMPOSING THE
RESTRICTIONS. 

THAT CONGRESS HAS CONSIDERED THE RESTRICTION OF INDIAN PROPERTY
AGAINST ALIENATION AND ENCUMBRANCE AS CARRYING WITH IT IMMUNITY FROM
STATE TAXATION FOR THE PERIOD OF THE RESTRICTION IS CLEAR NOT ONLY FROM
STATEMENTS OF CONGRESS ITSELF TO THAT EFFECT,  FN5  BUT ALSO FROM THE
LONG HISTORY OF SUCH RESTRICTIONS AND THE PURPOSE SOUGHT TO BE
ACHIEVED, THE PROTECTION OF A DEPENDENT PEOPLE FROM THEIR OWN
IMPROVIDENCE AND THE EXPLOITATION OF OTHERS. 

CONGRESS EARLY ESTABLISHED THE COMPLETE AND EXCLUSIVE CONTROL OF THE
FEDERAL GOVERNMENT OVER THE PURCHASE AND DISPOSITION OF INDIAN LANDS,
BOTH TRIBAL AND INDIVIDUAL.  FN6  THE PROTECTION AFFORDED BY THOSE AND
SUBSEQUENT RESTRICTIVE ACTS AND TREATIES EXTENDED TO TRESPASSES,
TRANSFERS, TAX SALES, TAX LIENS, AND OTHER ATTEMPTED INTERFERENCES BY
THE STATE GOVERNMENTS WITH FEDERAL CONTROL OVER INDIAN LANDS.  SEE
WORCESTER V. GEORGIA, 6 PET. 515; THE KANSAS INDIANS, 5 WALL.  737; THE
NEW YORK INDIANS, 5 WALL.  761. 

THE UNITED STATES WAS UNABLE, HOWEVER, TO PREVENT STATE INTERFERENCE
WITH THE CREEKS AND THE SEMINOLES IN THEIR DOMAINS EAST OF THE
MISSISSIPPI, AND ACCORDINGLY PROPOSED REMOVAL WEST OF THE MISSISSIPPI,
GUARANTEEING THAT THERE NO STATE OR TERRITORY SHOULD "EVER HAVE A RIGHT
TO PASS LAWS FOR THE GOVERNMENT OF SUCH INDIANS, BUT THEY SHALL BE
ALLOWED TO GOVERN THEMSELVES, SO FAR AS MAY BE COMPATIBLE WITH THE
GENERAL JURISDICTION WHICH CONGRESS MAY THINK PROPER TO EXERCISE OVER
THEM."  ARTICLE XIV, TREATY OF MARCH 24, 1832(7 STAT. 366).  LONG AFTER
THE REMOVAL THIS GUARANTEE WAS REAFFIRMED.  ARTICLE IV, TREATY OF
AUGUST 7, 1856(11 STAT. 699).  NOTHING IN THE SUBSEQUENT TREATIES AND
ALLOTMENT ACTS RELATING SPECIFICALLY TO THE CREEKS AND THE SEMINOLES
WAS INCONSISTENT WITH THIS GUARANTEE OF FREEDOM FROM STATE CONTROL. 
FN7  AND CONGRESS WAS CAREFUL TO PROVIDE THAT NOTHING IN THE CREATION
OF THE STATE OF OKLAHOMA SHOULD QUALIFY THIS PROMISE.  THUS THE
OKLAHOMA ENABLING ACT (34 STAT. 267) PROVIDED THAT THE OKLAHOMA
CONSTITUTION SHOULD NOT "LIMIT OR AFFECT THE AUTHORITY OF THE
GOVERNMENT OF THE UNITED STATES TO MAKE ANY LAW OR REGULATION
RESPECTING SUCH INDIANS, THEIR LANDS, PROPERTY, OR OTHER RIGHTS BY
TREATIES, AGREEMENT, LAW, OR OTHERWISE, WHICH IT WOULD HAVE BEEN
COMPETENT TO MAKE IF THIS ACT HAD NEVER BEEN PASSED."  THE CONSTITUTION
ADOPTED BY THE PEOPLE OF OKLAHOMA RENOUNCED ANY CLAIMS TO INDIAN LANDS
(ART. 1, SEC. 3), AND EXEMPTED FROM TAXATION "SUCH PROPERTY AS MAY BE
EXEMPT BY REASON OF TREATY STIPULATIONS, EXISTING BETWEEN THE INDIANS
AND THE UNITED STATES GOVERNMENT, OR BY FEDERAL LAWS, DURING THE FORCE
AND EFFECT OF SUCH TREATIES OR FEDERAL LAWS" (ART. X, SEC. 6).  SEE
TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286, 309; EX PARTE WEBB, 225
U.S. 663, 682-83; WARD V. LOVE COUNTY, 253 U.S. 17; CARPENTER V. SHAW,
280 U.S. 363, 366. 

AS WE RECENTLY SAID IN BOARD OF COMMISSIONERS V. SEBER, SUPRA,
CONGRESS IN 1887 TURNED FROM A POLICY OF PROTECTING INDIAN TRIBES IN
THE POSSESSION OF THEIR DOMAINS TO A PROGRAM, NOW DISCONTINUED, OF
ASSIMILATING THE INDIANS THROUGH DISSOLUTION OF THEIR TRIBAL
GOVERNMENTS AND THE COMPULSORY INDIVIDUALIZATION OF THEIR LANDS.  THIS
ALLOTMENT PROGRAM EVOLVED OUT OF THE HISTORICAL BACKGROUND SKETCHED
ABOVE, AND TOOK ITS CUE FROM THE PREVIOUS PROTECTION AND FREEDOM FROM
STATE CONTROL ACCORDED INDIANS AND THEIR LANDS.  THE INDIAN SURRENDERED
TRIBAL LAND, PROTECTED AGAINST STATE TAXATION AS WELL AS AGAINST ALL
OTHER FORMS OF VOLUNTARY AND INVOLUNTARY ENCUMBRANCE AND ALIENATION. 
CF. THE KANSAS INDIANS, SUPRA; THE NEW YORK INDIANS, SUPRA.  UNDER THE
VARIOUS ALLOTMENT ACTS HE RECEIVED IN RETURN LAND WHICH WAS INTENDED TO
HAVE THE SAME MEASURE OF PROTECTION FOR A TEMPORARY PERIOD, GENERALLY
SUBJECT TO EXTENSION.  THUS THE GENERAL ALLOTMENT ACT OF 1887(24 STAT.
388) PROVIDED FOR THE ISSUANCE TO ALLOTTEES OF TRUST PATENTS WHICH WERE
TO DECLARE:  "THE UNITED STATES DOES  ... HOLD THE LAND THUS ALLOTTED,
FOR THE PERIOD OF TWENTY-FIVE YEARS, IN TRUST  ...  AND THAT AT THE
EXPIRATION OF SAID PERIOD THE UNITED STATES WILL CONVEY THE SAME BY
PATENT TO SAID INDIAN  ...  IN FEE, DISCHARGED OF SAID TRUST AND FREE
OF ALL CHARGE OR INCUMBRANCE WHATSOEVER."  FN8  LANDS SO HELD IN TRUST
ARE IMMUNE FROM STATE TAXATION.  UNITED STATES V. RICKERT, 188 U.S.
432. 

THE LANDS HERE INVOLVED WERE NOT ALLOTTED UNDER "TRUST PATENTS"; THEY
WERE GRANTS IN FEE SUBJECT TO RESTRICTIONS AGAINST ALIENATION AND
ENCUMBRANCE.  FN9  BUT THERE ARE NO DIFFERENCES OF SUBSTANCE BETWEEN
THE TWO FORMS OF TENURE WHICH SUGGEST THAT WHILE THE ONE IS EXEMPT FROM
STATE TAXATION, THE OTHER IS NOT, OR THAT CONGRESS INTENDED TO FAVOR
INDIANS HOLDING UNDER "TRUST PATENTS" OVER THOSE HOLDING RESTRICTED
FEES.  CF. THE KANSAS INDIANS, SUPRA, AT P. 755.  THE POWER OF CONGRESS
OVER "TRUST" AND "RESTRICTED" LANDS IS THE SAME, BOARD OF COMMISSIONERS
V. SEBER, SUPRA, AND IN PRACTICE THE TERMS HAVE BEEN USED
INTERCHANGEABLY.  SEE UNITED STATES V. BOWLING, 256 U.S. 484; CF.
MINNESOTA V. UNITED STATES, 305 U.S. 382.  BOTH DEVICES HAD A COMMON
PURPOSE, TO PROTECT A DEPENDENT PEOPLE AGAINST LOSS OF THEIR PROPERTY
THROUGH THEIR OWN IMPROVIDENCE OR THE GREED OF OTHERS DURING THE PERIOD
OF TRANSITION IN WHICH THEY BEGAN TO ASSUME THE RESPONSIBILITIES OF
CITIZENSHIP.  TO ACHIEVE THIS PURPOSE THE PROTECTION AFFORDED BY
CONGRESS WAS NOT NIGGARDLY.  SEE TIGER V. WESTERN INVESTMENT CO., 221
U.S. 286; HECKMAN V. UNITED STATES, 224 U.S. 413; BRADER V. JAMES, 246
U.S. 88. 

STATE TAXATION OF "RESTRICTED" LANDS AS WELL AS TAXATION OF "TRUST"
LANDS, IN THE ABSENCE OF CONGRESSIONAL AUTHORIZATION, IS A POSSIBLE
CAUSE OF THE LOSS WHICH CONGRESS HAS SAID SHALL NOT OCCUR.  THE
RESTRICTIONS ARE NOT LIMITED TO VOLUNTARY SALE - CONSISTENTLY WITH
THEIR PURPOSE THEY EXTEND TO ALL FORMS OF TRANSFER OR ENCUMBRANCE,
INVOLUNTARY AS WELL AS VOLUNTARY.  CF. GOUDY V. MEATH, 203 U.S. 146. 
THE INTERFERENCE OF STATE TAXATION WITH CONGRESS' PROGRAM OF PROTECTION
IS MADE CLEAR BY THE FACT THAT THE INSTANT OKLAHOMA INHERITANCE TAX
ACTS IMPOSE LIENS UPON THE PROPERTY UNTIL THE TAXES ARE PAID.  FN10
THE POSSIBLE CONSEQUENCES OF A TAX LIEN UPON INDIAN PROPERTY ARE
POINTED OUT IN THE NEW YORK INDIANS, SUPRA, WHERE IT WAS HELD THAT THE
MERE EXISTENCE OF A LIEN IN A STATE TAXING ACT INVALIDATES IT, DESPITE
A PROVISION TO THE EFFECT THAT NO FORECLOSURE OF A LIEN SHOULD AFFECT
THE INDIAN'S RIGHT OF OCCUPANCY.  AND, EVEN WHEN PERMITTING SPECIFIED
FORMS OF STATE TAXATION OF RESTRICTED INDIAN PROPERTY, CONGRESS HAS
SIGNIFICANTLY PROVIDED IN NUMEROUS STATUTES THAT NO TAX LIEN SHOULD
ATTACH.  FN11  I CONCLUDE THAT WHEN CONGRESS IMPOSED RESTRICTIONS UPON
INDIAN PROPERTY, IT MEANT, AND WAS SAYING IN EFFECT, THAT THE PROPERTY
WAS EXEMPT FROM STATE TAXATION WHILE THE RESTRICTIONS CONTINUE OR UNTIL
CONGRESS WAIVES THE IMMUNITY.  INDEED, CONGRESS HAS CLEARLY STATED THAT
THIS WAS ITS INTENTION BY DECLARING IN THE ACT OF APRIL 17, 1937, 50
STAT. 68, WHICH PERMITTED A GROSS PRODUCTION TAX TO BE IMPOSED BY
OKLAHOMA ON LEAD AND ZINC PRODUCED FROM RESTRICTED QUAPAW LANDS:  "IN
ACCORDANCE WITH THE UNIFORM POLICY OF THE UNITED STATES GOVERNMENT TO
HOLD THE LANDS OF THE QUAPAW INDIANS WHILE RESTRICTED AND THE INCOME
THEREFROM FREE FROM STATE TAXATION OF WHATSOEVER NATURE, EXCEPT AS SAID
IMMUNITY IS EXPRESSLY WAIVED, AND, IN PURSUANCE OF SAID FIXED POLICY,
IT IS HEREIN EXPRESSLY PROVIDED THAT THE WAIVER OF TAX IMMUNITY HEREIN
PROVIDED SHALL BE IN LIEU OF ALL OTHER STATE TAXES OF WHATSOEVER NATURE
ON SAID RESTRICTED LANDS OR THE INCOME THEREFROM,  ...  "  FN12 

WHEN CONGRESS HAS INTENDED THAT RESTRICTED PROPERTY SHOULD BE TAXED,
IT HAS EXPLICITLY SAID SO. FN13  IN THE ABSENCE OF SUCH ASSENT
RESTRICTED PROPERTY REMAINS BEYOND THE REACH OF A STATE'S TAXING
POWER.  NON-ALIENABILITY AND TAX EXEMPTION HAVE BEEN SAID TO BE
DISTINCT THINGS SO FAR AS VESTED RIGHTS ARE CONCERNED, SEE CHOATE V.
TRAPP, 224 U.S. 665, 673, BUT THIS OF COURSE DOES NOT MEAN THAT THE
CONCEPTS OF RESTRICTION AND IMMUNITY FROM STATE TAXATION ARE
UNRELATED.  NOR DOES THE CIRCUMSTANCE THAT SOME OF THE APPLICABLE
STATUTES EXPRESSLY PROVIDE SPECIFIC TAX EXEMPTIONS FOR RESTRICTED LANDS
INDICATE THAT RESTRICTION IS NOT TANTAMOUNT TO IMMUNITY FROM STATE
TAXATION.  FN14  AT THE TIME THE ALLOTMENTS TO THE MEMBERS OF THE FIVE
CIVILIZED TRIBES WERE MADE THERE WAS NO STATE OF OKLAHOMA.  IT HAD BEEN
HELD THAT CONGRESS HAD POWER TO LAY TAXES UPON INDIAN PROPERTY WITHIN
INDIAN TERRITORY, CHEROKEE TOBACCO, 11 WALL.  616, AND ITS CREATURE,
THE TERRITORIAL GOVERNMENT, WAS AGITATING FOR THE TAXATION OF INDIAN
PROPERTY.  FN15  RESTRICTIONS, DESIGNED TO PROTECT THE INDIANS FROM
THEMSELVES AND THE ACTIONS OF THIRD PARTIES, INCLUDING STATE
GOVERNMENTS, DID NOT BAR TAXATION BY THE FEDERAL GOVERNMENT WHICH WAS
THE GUARDIAN OF THEIR INTERESTS.  FN16 ACCORDINGLY, SPECIFIC TAX
EXEMPTIONS WERE WRITTEN INTO THE ALLOTMENT ACTS.  FN17  EXPRESS
PROVISIONS AS TO THE TAXABLE STATUS OF RESTRICTED PROPERTY IN THE LATER
LEGISLATION APPEAR ONLY WHERE THE IMMUNITY IS BEING LIMITED AND
EXPRESSLY WAIVED IN PART OR THE RESTRICTIONS ARE BEING CHANGED.  FN18 

ALL OF THE LANDS WHICH THE OPINION OF THE COURT HOLDS IMMUNE FROM
OKLAHOMA'S ESTATE TAX BECAUSE OF EXPRESS EXEMPTIONS WERE THEREFORE ALSO
EXEMPT AT THE MOMENT OF DEATH ON THE ADDITIONAL GROUND THAT THEY WERE
THEN SUBJECT TO RESTRICTIONS IMPOSED BY CONGRESS AND THE CONCOMITANT
TAX IMMUNITY HAD NOT BEEN WAIVED.  THE OTHER RESTRICTED LANDS IN THE
ESTATES ARE LANDS TO WHOSE TAXATION CONGRESS HAS SPECIFICALLY
CONSENTED, OR ELSE WERE OF THE TYPE TO BE TAXABLE AT THE TIME OF DEATH
UNDER THE DECISION IN SHAW V. GIBSON-ZAHNISER OIL CORP., 276 U.S. 575. 

THE ORIGIN OF RESTRICTIONS UPON THE FUND OF MEMBERS OF THE FIVE
CIVILIZED TRIBES IS SOMEWHAT DIFFERENT FROM THAT UPON THE LANDS, BUT
THE EFFECT OF THE RESTRICTIONS UPON THE TAXABILITY OF THE CASH AND
SECURITIES IN THE THREE ESTATES WITH WHICH WE ARE DEALING IS THE SAME. 
PROCEEDS FROM SALES OR LEASES OF RESTRICTED LANDS HAVE ALWAYS BEEN
REGARDED AS "TRUST" OR "RESTRICTED" FUNDS BY THE SECRETARY OF THE
INTERIOR, WHO BY REGULATIONS HAS REQUIRED THEM TO BE PAID TO HIM OR HIS
REPRESENTATIVES AND HELD FOR THE BENEFIT OF THE INDIAN OWNER.  FN19
THE VALIDITY OF THOSE ADMINISTRATIVE RESTRICTIONS AND THE POWER OF THE
UNITED STATES TO ENFORCE THEM HAVE BEEN RECOGNIZED.  PARKER V. RICHARD,
250 U.S. 235; MOTT V. UNITED STATES, 283 U.S. 747.  AND IT HAS BEEN
HELD THAT FUNDS SO RESTRICTED BY DEPARTMENTAL REGULATION ARE EXEMPT
FROM STATE AND LOCAL TAXATION.  SEE UNITED STATES V. THURSTON COUNTY,
143 F. 287; UNITED STATES V. HUGHES, 6 F.SUPP.  972.  BUT WE DO NOT
HAVE TO CONSIDER WHETHER THIS ADMINISTRATIVE RESTRICTION ALONE IS
SUFFICIENT TO CONFER TAX EXEMPTION UPON THE CASH AND SECURITIES IN THE
THREE ESTATES.  FN20 

THE ACT OF JANUARY 27, 1933(47 STAT. 777), IMPOSES CONGRESSIONAL
RESTRICTIONS BY PROVIDING: 

"THAT ALL FUNDS  ...  NOW HELD BY OR WHICH MAY HEREAFTER COME UNDER
THE SUPERVISION OF THE SECRETARY OF THE INTERIOR, BELONGING TO AND ONLY
SO LONG AS BELONGING TO INDIANS OF THE FIVE CIVILIZED TRIBES IN
OKLAHOMA OF ONE-HALF OR MORE INDIAN BLOOD, ENROLLED OR UNENROLLED, ARE
HEREBY ...  RESTRICTED AND SHALL REMAIN SUBJECT TO THE JURISDICTION OF
SAID SECRETARY UNTIL APRIL 26, 1956,  ...  " 

THIS ACT DOES NOT STAND ALONE.  IT IS PART OF CONGRESS' LONG
CONTINUED PROGRAM OF PROTECTION AND IT CARRIES WITH IT THE GLOSS OF THE
HISTORY OF THE RESTRICTIONS OUTLINED ABOVE.  CONGRESS WAS NOT IMPOSING
RESTRICTIONS FOR THE FIRST TIME, AND THERE IS NOTHING TO SUGGEST THAT
CONGRESS INTENDED THEM TO HAVE LESS THAN THEIR TRADITIONAL HISTORICAL
MEANING OF TAX EXEMPTION IN THIS ACT.  IT IS IMMATERIAL THAT THE
LEGISLATIVE HISTORY OF THE ACT IS SILENT WITH REGARD TO THE TAX STATUS
OF INDIAN FUNDS.  WE ARE DEALING NOT WITH A WORD, NOR WITH AN ACT, BUT
WITH A COURSE OF HISTORY.  THAT COURSE MAKES IT CLEAR THAT THE
RESTRICTED FUNDS IN THESE ESTATES WERE BEYOND THE TAXING POWER OF
OKLAHOMA.  FN21 

IT IS NOT OUR FUNCTION TO SPECULATE WHETHER IT IS WISE AT THIS LATE
DAY TO RELIEVE FROM THE ORDINARY BURDEN OF TAXATION INDIANS WHO ENJOY
THE PRIVILEGES OF CITIZENSHIP AND WHO IN SOME INSTANCES ARE PERSONS OF
SUBSTANTIAL MEANS.  NOR IS IT OUR LEGITIMATE CONCERN THAT GRANTS OF TAX
EXEMPTION TO INDIAN INHABITANTS MAY CREATE SERIOUS FISCAL PROBLEMS IN
SOME STATES OR IN THEIR LOCAL GOVERNMENTAL SUBDIVISIONS.  THOSE
MATTERS, AS WELL AS THE CHARACTER, EXTENT AND DURATION OF TAX
EXEMPTIONS FOR THE INDIANS, ARE QUESTIONS OF POLICY FOR THE
CONSIDERATION OF CONGRESS, NOT THE COURTS.  BOARD OF COMMISSIONERS V.
SEBER, SUPRA.  OUR INQUIRY IS NOT WITH WHAT CONGRESS MIGHT OR SHOULD
HAVE DONE, BUT WITH WHAT IT HAS DONE.  THAT INQUIRY CAN BE ANSWERED
HERE ONLY BY HOLDING THAT THE RESTRICTED FUNDS IN THESE ESTATES, AS
WELL AS THE LANDS WHICH THE COURT HOLDS IMMUNE, WERE NOT SUBJECT TO
OKLAHOMA'S ESTATE TAX. 

FN1  THE DECEASED INDIANS IN THESE THREE CASES WERE ENROLLED FULL
BLOOD INDIANS OF THE FIVE CIVILIZED TRIBES.  TWO WERE SEMINOLES AND ONE
WAS A CREEK.  CONGRESS HAS NOT TERMINATED THE GUARDIANSHIP RELATION
WITH RESPECT TO THESE TRIBES.  THEY STILL EXIST (SEC. 28 OF ACT OF
APRIL 26, 1906, 34 STAT. 137), AND HAVE RECENTLY BEEN AUTHORIZED TO
RESUME SOME OF THEIR FORMER POWERS (ACT OF JUNE 26, 1936, 49 STAT.
1967).  CONGRESS HAS REGARDED THEIR MEMBERS OF THE HALF INDIAN BLOOD OR
MORE, WHETHER ENROLLED OR NOT, AS RESTRICTED TRIBAL INDIANS SUBJECT TO
FEDERAL CONTROL.  THE FACT THAT THESE INDIANS ARE CITIZENS IS NOT
INCONSISTENT WITH THEIR RESTRICTED STATUS OR THE EXERCISE OF FEDERAL
SUPERVISION OVER THEM.  SEE BOARD OF COMMISSIONERS V. SEBER, SUPRA;
GLENN V. LEWIS, 105 F.2D 398. 

FN2  SEE ACT OF JULY 1, 1898, 30 STAT. 567; ACT OF MARCH 1, 1901, 31
STAT. 861; ACT OF JUNE 30, 1902, 32 STAT. 500; SEC. 19 OF ACT OF APRIL
26, 1906, 34 STAT. 137; SEC. 4 OF ACT OF MAY 10, 1928, 45 STAT. 495 AND
733. 

THE FACT THAT THE EXEMPTIONS DO NOT MENTION INHERITANCE OR ESTATE
TAXES IS UNIMPORTANT.  AS POINTED OUT BEFORE, CONTRARY TO THE GENERAL
RULE INDIAN TAX EXEMPTIONS ARE TO BE LIBERALLY CONSTRUED.  SEE
CARPENTER V. SHAW, 280 U.S. 363, 366-67.  FOR THAT REASON DECISIONS,
SUCH AS U.S. TRUST CO. V. HELVERING, 307 U.S. 57, THAT STATUTORY
EXEMPTIONS FROM TAXATION DO NOT INCLUDE AN EXEMPTION FROM ESTATE TAXES,
HAVE NO APPLICATION HERE. 

FN3  IN ADDITION TO THE STATUTES CITED IN NOTE 2, SUPRA, SEE ALSO ACT
OF MAY 27, 1908, 35 STAT. 312; AND ACT OF JANUARY 27, 1933, 47 STAT.
777. 

FN4  SEE NOTE 12, INFRA. 

FN5  SEE NOTE 12, INFRA. 

FN6  INDIAN TRADE AND INTERCOURSE ACTS OF JULY 22, 1790, 1 STAT. 137;
MARCH 1, 1793, 1 STAT. 329; MARCH 3, 1799, SEC. 12, 1 STAT. 743, 25
U.S.C. SEC. 177. 

FN7  SEE TREATY OF MARCH 21, 1866, 14 STAT. 755; TREATY OF JUNE 14,
1866, 14 STAT. 785; CURTIS ACT OF 1898, 30 STAT. 495; ACT OF JULY 1,
1898, 30 STAT. 567; ACT OF MARCH 1, 1901, 31 STAT. 861; ACT OF JUNE 30,
1902, 32 STAT. 500. 

FN8  THE PRESIDENT WAS AUTHORIZED TO EXTEND THE TRUST PERIOD IN HIS
DISCRETION. 

FN9  SEE ACT OF JULY 1, 1898, 30 STAT. 567; ACT OF JUNE 2, 1900, 31
STAT. 250; ACT OF MARCH 1, 1901, 31 STAT. 861; ACT OF JUNE 30, 1902, 32
STAT. 500; SEC. 19 OF ACT OF APRIL 26, 1906, 34 STAT. 137; SEC. 1 OF
ACT OF MAY 27, 1908, 35 STAT. 312; ACT OF MAY 10, 1928, 45 STAT. 495. 

FN10  OKLA. S.L. 1915, C. 162, SEC. 8, AS AMENDED BY C. 296, SEC. 5,
OKLA. S.L. 1919; OKLA. S.L. 1935, C. 66, ART. 5, SEC. 9. 

FN11  SEE ACT OF MAY 6, 1910, 36 STAT. 348; ACT OF MARCH 3, 1921, 41
STAT. 1225, 1249; ACT OF MAY 27, 1924, 43 STAT. 176; ACT OF MAY 29,
1924, 43 STAT. 244; ACT OF APRIL 17, 1937, 50 STAT. 68. 

FN12  THERE ARE VARIOUS OTHER EXPRESSIONS OF CONGRESSIONAL
UNDERSTANDING ON THIS POINT.  FOR EXAMPLE, H. REP. NO. 2415, 71ST
CONG., 3D SESS., P. 1, ADVOCATING PASSAGE OF WHAT IS NOW THE ACT OF
FEBRUARY 14, 1931, 46 STAT. 1108, DECLARES:  "UNDER EXISTING LAW THE
RESTRICTED ALLOTTED LANDS OF INDIANS OF THE FIVE CIVILIZED TRIBES ARE
TAX EXEMPT WHILE RESTRICTED."  SEE ALSO S. REP. NO. 982, 70TH CONG.,
1ST SESS., PP. 3, 4, 5; S. REP. NO. 330, 65TH CONG., 2D SESS., P. 4. 

THE ACT OF MAY 27, 1908, 35 STAT. 312, BY SPECIFICALLY PROVIDING IN
SEC. 4 THAT LANDS FROM WHICH "RESTRICTIONS HAVE BEEN OR SHALL BE
REMOVED SHALL BE SUBJECT TO TAXATION," STRONGLY INDICATES A
CONGRESSIONAL UNDERSTANDING THAT RESTRICTION AMOUNTED TO TAX
EXEMPTION. 

FN13  FOR EXAMPLE, AMONG THE STATUTES APPLICABLE TO THE CREEKS AND
SEMINOLES, SEE SECS. 3 AND 4 OF THE ACT OF MAY 10, 1928, 45 STAT. 495
AND 733.  SEE GENERALLY THE STATUTES COLLECTED IN NOTE 11, SUPRA. 

FN14  ACT OF JULY 1, 1898, 30 STAT. 567; ACT OF MARCH 1, 1901, 31
STAT. 861; ACT OF JUNE 30, 1902, 32 STAT. 500; SEC. 19 OF ACT OF APRIL
26, 1906, 34 STAT. 137; SEC. 4 OF THE ACT OF MAY 10, 1928, 45 STAT. 495
AND 733. 

FN15  SEE SEN. DOC. 169, 58TH CONG., 2D SESS. 

FN16  IT IS FOR THIS HISTORICAL REASON THAT CASES SUCH AS
SUPERINTENDENT V. COMMISSIONER, 295 U.S. 418, AND LANDMAN V.
COMMISSIONER, 123 F.2D 787, HAVE NO BEARING UPON A CONSIDERATION OF THE
EFFECT OF RESTRICTIONS UPON THE POWER OF A STATE TO TAX. 

FN17  SEE ACT OF JULY 1, 1898, 30 STAT. 567; ACT OF MARCH 1, 1901, 31
STAT. 861; ACT OF JUNE 30, 1902, 32 STAT. 500. 

FN18  ACT OF APRIL 26, 1906, 34 STAT. 137; ACT OF MAY 10, 1928, 45
STAT. 495. 

FN19  SINCE 1908 THE REGULATIONS PRESCRIBED BY THE SECRETARY UNDER
SEC. 2 OF THE ACT OF 1908, 35 STAT. 312 AND RELATED STATUTES GOVERNING
OIL, GAS AND OTHER MINING LEASES OF RESTRICTED LANDS, HAVE RECOGNIZED
THAT PROCEEDS FROM SUCH LEASES ARE RESTRICTED AND HAVE REQUIRED THAT
ALL SUCH MONEY BE PAID TO A REPRESENTATIVE OF THE SECRETARY.  SEE 25
C.F.R. SECS. 183.18, 183.20; SEE ALSO SEC. 20 OF THE REGULATIONS
APPROVED APRIL 20, 1908. 

FN20  IN SHAW V. GIBSON-ZAHNISER OIL CORP., 276 U.S. 575, THE
INTEREST OF AN OIL LESSEE IN LAND PURCHASED FOR AN INDIAN BY THE
SECRETARY OF THE INTERIOR WITH THE INDIAN'S RESTRICTED FUNDS AND
CONVEYED TO THE INDIAN BY A RESTRICTED FORM OF DEED PURSUANT TO
CONDITIONS IMPOSED BY THE SECRETARY, WAS HELD SUBJECT TO AN OKLAHOMA
OIL PRODUCTION TAX.  THE OPINION EMPHASIZED THE DIFFERENCE BETWEEN "A
MERE CONVEYANCER'S RESTRICTION" AND ACTION BY CONGRESS. 

FN21  TWO OF THE DECEDENTS DIED BEFORE THE ACT WAS PASSED.  THE HOUSE
COMMITTEE REPORT, HOWEVER, MAKES IT CLEAR THAT THE RESTRICTION ON FUNDS
WAS INTENDED TO BE DECLARATORY AND RETROACTIVE.  H. REP. NO. 1015, 72D
CONG., 1ST SESS.  IN VIEW OF THIS THERE IS NO REASON WHY THE RESTRICTED
FUNDS IN THE ESTATES OF THOSE DECEDENTS, HELD BY THE SECRETARY, SHOULD
NOT BE DEEMED COVERED BY THAT ACT, AND HENCE TAX EXEMPT BY VIRTUE OF
THE RESTRICTIONS. 

THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE FRANKFURTER JOIN
IN THIS DISSENT. 
..END :




















BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624 


NO. 591.  ARGUED MARCH 11, 1943.  - DECIDED JUNE 14, 1943.  - 47
F.SUPP.  251, AFFIRMED. 


1.  STATE ACTION AGAINST WHICH THE FOURTEENTH AMENDMENT PROTECTS
INCLUDES ACTION BY A STATE BOARD OF EDUCATION.  P. 637. 

2.  THE ACTION OF A STATE IN MAKING IT COMPULSORY FOR CHILDREN IN THE
PUBLIC SCHOOLS TO SALUTE THE FLAG AND PLEDGE ALLEGIANCE - BY EXTENDING
THE RIGHT ARM, PALM UPWARD, AND DECLARING, "I PLEDGE ALLEGIANCE TO THE
FLAG OF THE UNITED STATES OF AMERICA AND TO THE REPUBLIC FOR WHICH IT
STANDS; ONE NATION, INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL" -
VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS.  P. 642. 

SO HELD AS APPLIED TO CHILDREN WHO WERE EXPELLED FOR REFUSAL TO
COMPLY, AND WHOSE ABSENCE THEREBY BECAME "UNLAWFUL," SUBJECTING THEM
AND THEIR PARENTS OR GUARDIANS TO PUNISHMENT. 

3.  THAT THOSE WHO REFUSED COMPLIANCE DID SO ON RELIGIOUS GROUNDS
DOES NOT CONTROL THE DECISION OF THIS QUESTION; AND IT IS UNNECESSARY
TO INQUIRE INTO THE SINCERITY OF THEIR VIEWS.  P. 634. 

4.  UNDER THE FEDERAL CONSTITUTION, COMPULSION AS HERE EMPLOYED IS
NOT A PERMISSIBLE MEANS OF ACHIEVING "NATIONAL UNITY."  P. 640. 

5.  MINERSVILLE SCHOOL DIST. V. GOBITIS, 310 U.S. 586, OVERRULED;
HAMILTON V. REGENTS, 293 U.S. 245, DISTINGUISHED.  PP. 642, 632. 

WEST VIRGINIA STATE BOARD OF EDUCATION ET AL. V. BARNETTE ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF WEST VIRGINIA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES ENJOINING
THE ENFORCEMENT OF A REGULATION OF THE WEST VIRGINIA STATE BOARD OF
EDUCATION REQUIRING CHILDREN IN THE PUBLIC SCHOOLS TO SALUTE THE
AMERICAN FLAG. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

FOLLOWING THE DECISION BY THIS COURT ON JUNE 3, 1940, IN MINERSVILLE
SCHOOL DISTRICT V. GOBITIS, 310 U.S. 586, THE WEST VIRGINIA LEGISLATURE
AMENDED ITS STATUTES TO REQUIRE ALL SCHOOLS THEREIN TO CONDUCT COURSES
OF INSTRUCTION IN HISTORY, CIVICS, AND IN THE CONSTITUTIONS OF THE
UNITED STATES AND OF THE STATE "FOR THE PURPOSE OF TEACHING, FOSTERING
AND PERPETUATING THE IDEALS, PRINCIPLES AND SPIRIT OF AMERICANISM, AND
INCREASING THE KNOWLEDGE OF THE ORGANIZATION AND MACHINERY OF THE
GOVERNMENT."  APPELLANT BOARD OF EDUCATION WAS DIRECTED, WITH ADVICE OF
THE STATE SUPERINTENDENT OF SCHOOLS, TO "PRESCRIBE THE COURSES OF STUDY
COVERING THESE SUBJECTS" FOR PUBLIC SCHOOLS.  THE ACT MADE IT THE DUTY
OF PRIVATE, PAROCHIAL AND DENOMINATIONAL SCHOOLS TO PRESCRIBE COURSES
OF STUDY "SIMILAR TO THOSE REQUIRED FOR THE PUBLIC SCHOOLS."  FN1 

THE BOARD OF EDUCATION ON JANUARY 9, 1942, ADOPTED A RESOLUTION
CONTAINING RECITALS TAKEN LARGELY FROM THE COURT'S GOBITIS OPINION AND
ORDERING THAT THE SALUTE TO THE FLAG BECOME "A REGULAR PART OF THE
PROGRAM OF ACTIVITIES IN THE PUBLIC SCHOOLS," THAT ALL TEACHERS AND
PUPILS "SHALL BE REQUIRED TO PARTICIPATE IN THE SALUTE HONORING THE
NATION REPRESENTED BY THE FLAG; PROVIDED, HOWEVER, THAT REFUSAL TO
SALUTE THE FLAG BE REGARDED AS AN ACT OF INSUBORDINATION, AND SHALL BE
DEALT WITH ACCORDINGLY."  FN2 

THE RESOLUTION ORIGINALLY REQUIRED THE "COMMONLY ACCEPTED SALUTE TO
THE FLAG" WHICH IT DEFINED.  OBJECTIONS TO THE SALUTE AS "BEING TOO
MUCH LIKE HITLER'S" WERE RAISED BY THE PARENT AND TEACHERS ASSOCIATION,
THE BOY AND GIRL SCOUTS, THE RED CROSS, AND THE FEDERATION OF WOMEN'S
CLUBS.  FN3 SOME MODIFICATION APPEARS TO HAVE BEEN MADE IN DEFERENCE TO
THESE OBJECTIONS, BUT NO CONCESSION WAS MADE TO JEHOVAH'S WITNESSES. 
FN4  WHAT IS NOW REQUIRED IS THE "STIFF-ARM" SALUTE, THE SALUTER TO
KEEP THE RIGHT HAND RAISED WITH PALM TURNED UP WHILE THE FOLLOWING IS
REPEATED:  "I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF
AMERICA AND TO THE REPUBLIC FOR WHICH IT STANDS; ONE NATION,
INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL." 

FAILURE TO CONFORM IS "INSUBORDINATION" DEALT WITH BY EXPULSION. 
READMISSION IS DENIED BY STATUTE UNTIL COMPLIANCE.  MEANWHILE THE
EXPELLED CHILD IS "UNLAWFULLY ABSENT" N5 AND MAY BE PROCEEDED AGAINST
AS A DELINQUENT.  FN6  HIS PARENTS OR GUARDIANS ARE LIABLE TO
PROSECUTION,  FN7 AND IF CONVICTED ARE SUBJECT TO FINE NOT EXCEEDING
$50 AND JAIL TERM NOT EXCEEDING THIRTY DAYS.  FN8 

APPELLEES, CITIZENS OF THE UNITED STATES AND OF WEST VIRGINIA,
BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT FOR THEMSELVES AND
OTHERS SIMILARLY SITUATED ASKING ITS INJUNCTION TO RESTRAIN ENFORCEMENT
OF THESE LAWS AND REGULATIONS AGAINST JEHOVAH'S WITNESSES.  THE
WITNESSES ARE AN UNINCORPORATED BODY TEACHING THAT THE OBLIGATION
IMPOSED BY LAW OF GOD IS SUPERIOR TO THAT OF LAWS ENACTED BY TEMPORAL
GOVERNMENT.  THEIR RELIGIOUS BELIEFS INCLUDE A LITERAL VERSION OF
EXODUS, CHAPTER 20, VERSES 4 AND 5, WHICH SAYS:  "THOU SHALT NOT MAKE
UNTO THEE ANY GRAVEN IMAGE, OR ANY LIKENESS OF ANYTHING THAT IS IN
HEAVEN ABOVE, OR THAT IS IN THE EARTH BENEATH, OR THAT IS IN THE WATER
UNDER THE EARTH; THOU SHALT NOT BOW DOWN THYSELF TO THEM NOR SERVE
THEM."  THEY CONSIDER THAT THE FLAG IS AN "IMAGE" WITHIN THIS COMMAND. 
FOR THIS REASON THEY REFUSE TO SALUTE IT. 

CHILDREN OF THIS FAITH HAVE BEEN EXPELLED FROM SCHOOL AND ARE
THREATENED WITH EXCLUSION FOR NO OTHER CAUSE.  OFFICIALS THREATEN TO
SEND THEM TO REFORMATORIES MAINTAINED FOR CRIMINALLY INCLINED
JUVENILES.  PARENTS OF SUCH CHILDREN HAVE BEEN PROSECUTED AND ARE
THREATENED WITH PROSECUTIONS FOR CAUSING DELINQUENCY. 

THE BOARD OF EDUCATION MOVED TO DISMISS THE COMPLAINT SETTING FORTH
THESE FACTS AND ALLEGING THAT THE LAW AND REGULATIONS ARE AN
UNCONSTITUTIONAL DENIAL OF RELIGIOUS FREEDOM, AND OF FREEDOM OF SPEECH,
AND ARE INVALID UNDER THE "DUE PROCESS" AND "EQUAL PROTECTION" CLAUSES
OF THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION.  THE CAUSE WAS
SUBMITTED ON THE PLEADINGS TO A DISTRICT COURT OF THREE JUDGES.  IT
RESTRAINED ENFORCEMENT AS TO THE PLAINTIFFS AND THOSE OF THAT CLASS. 
THE BOARD OF EDUCATION BROUGHT THE CASE HERE BY DIRECT APPEAL.  FN9 

THIS CASE CALLS UPON US TO RECONSIDER A PRECEDENT DECISION, AS THE
COURT THROUGHOUT ITS HISTORY OFTEN HAS BEEN REQUIRED TO DO.  FN10
BEFORE TURNING TO THE GOBITIS CASE, HOWEVER, IT IS DESIRABLE TO NOTICE
CERTAIN CHARACTERISTICS BY WHICH THIS CONTROVERSY IS DISTINGUISHED. 

THE FREEDOM ASSERTED BY THESE APPELLEES DOES NOT BRING THEM INTO
COLLISION WITH RIGHTS ASSERTED BY ANY OTHER INDIVIDUAL.  IT IS SUCH
CONFLICTS WHICH MOST FREQUENTLY REQUIRE INTERVENTION OF THE STATE TO
DETERMINE WHERE THE RIGHTS OF ONE END AND THOSE OF ANOTHER BEGIN.  BUT
THE REFUSAL OF THESE PERSONS TO PARTICIPATE IN THE CEREMONY DOES NOT
INTERFERE WITH OR DENY RIGHTS OF OTHERS TO DO SO.  NOR IS THERE ANY
QUESTION IN THIS CASE THAT THEIR BEHAVIOR IS PEACEABLE AND ORDERLY. 
THE SOLE CONFLICT IS BETWEEN AUTHORITY AND RIGHTS OF THE INDIVIDUAL. 
THE STATE ASSERTS POWER TO CONDITION ACCESS TO PUBLIC EDUCATION ON
MAKING A PRESCRIBED SIGN AND PROFESSION AND AT THE SAME TIME TO COERCE
ATTENDANCE BY PUNISHING BOTH PARENT AND CHILD.  THE LATTER STAND ON A
RIGHT OF SELF-DETERMINATION IN MATTERS THAT TOUCH INDIVIDUAL OPINION
AND PERSONAL ATTITUDE. 

AS THE PRESENT CHIEF JUSTICE SAID IN DISSENT IN THE GOBITIS CASE, THE
STATE MAY "REQUIRE TEACHING BY INSTRUCTION AND STUDY OF ALL IN OUR
HISTORY AND IN THE STRUCTURE AND ORGANIZATION OF OUR GOVERNMENT,
INCLUDING THE GUARANTIES OF CIVIL LIBERTY, WHICH TEND TO INSPIRE
PATRIOTISM AND LOVE OF COUNTRY."  310 U.S. AT 604.  HERE, HOWEVER, WE
ARE DEALING WITH A COMPULSION OF STUDENTS TO DECLARE A BELIEF.  THEY
ARE NOT MERELY MADE ACQUAINTED WITH THE FLAG SALUTE SO THAT THEY MAY BE
INFORMED AS TO WHAT IT IS OR EVEN WHAT IT MEANS.  THE ISSUE HERE IS
WHETHER THIS SLOW AND EASILY NEGLECTED  FN11  ROUTE TO AROUSED
LOYALTIES CONSTITUTIONALLY MAY BE SHORT-CUT BY SUBSTITUTING A
COMPULSORY SALUTE AND SLOGAN.  FN12  THIS ISSUE IS NOT PREJUDICED BY
THE COURT'S PREVIOUS HOLDING THAT WHERE A STATE, WITHOUT COMPELLING
ATTENDANCE, EXTENDS COLLEGE FACILITIES TO PUPILS WHO VOLUNTARILY
ENROLL, IT MAY PRESCRIBE MILITARY TRAINING AS PART OF THE COURSE
WITHOUT OFFENSE TO THE CONSTITUTION.  IT WAS HELD THAT THOSE WHO TAKE
ADVANTAGE OF ITS OPPORTUNITIES MAY NOT ON GROUND OF CONSCIENCE REFUSE
COMPLIANCE WITH SUCH CONDITIONS.  HAMILTON V. REGENTS, 293 U.S. 245. 
IN THE PRESENT CASE ATTENDANCE IS NOT OPTIONAL.  THAT CASE IS ALSO TO
BE DISTINGUISHED FROM THE PRESENT ONE BECAUSE, INDEPENDENTLY OF COLLEGE
PRIVILEGES OR REQUIREMENTS, THE STATE HAS POWER TO RAISE MILITIA AND
IMPOSE THE DUTIES OF SERVICE THEREIN UPON ITS CITIZENS. 

THERE IS NO DOUBT THAT, IN CONNECTION WITH THE PLEDGES, THE FLAG
SALUTE IS A FORM OF UTTERANCE.  SYMBOLISM IS A PRIMITIVE BUT EFFECTIVE
WAY OF COMMUNICATING IDEAS.  THE USE OF AN EMBLEM OR FLAG TO SYMBOLIZE
SOME SYSTEM, IDEA, INSTITUTION, OR PERSONALITY, IS A SHORT CUT FROM
MIND TO MIND.  CAUSES AND NATIONS, POLITICAL PARTIES, LODGES AND
ECCLESIASTICAL GROUPS SEEK TO KNIT THE LOYALTY OF THEIR FOLLOWINGS TO A
FLAG OR BANNER, A COLOR OR DESIGN.  THE STATE ANNOUNCES RANK, FUNCTION,
AND AUTHORITY THROUGH CROWNS AND MACES, UNIFORMS AND BLACK ROBES; THE
CHURCH SPEAKS THROUGH THE CROSS, THE CRUCIFIX, THE ALTAR AND SHRINE,
AND CLERICAL RAIMENT.  SYMBOLS OF STATE OFTEN CONVEY POLITICAL IDEAS
JUST AS RELIGIOUS SYMBOLS COME TO CONVEY THEOLOGICAL ONES.  ASSOCIATED
WITH MANY OF THESE SYMBOLS ARE APPROPRIATE GESTURES OF ACCEPTANCE OR
RESPECT:  A SALUTE, A BOWED OR BARED HEAD, A BENDED KNEE.  A PERSON
GETS FROM A SYMBOL THE MEANING HE PUTS INTO IT, AND WHAT IS ONE MAN'S
COMFORT AND INSPIRATION IS ANOTHER'S JEST AND SCORN. 

OVER A DECADE AGO CHIEF JUSTICE HUGHES LED THIS COURT IN HOLDING THAT
THE DISPLAY OF A RED FLAG AS A SYMBOL OF OPPOSITION BY PEACEFUL AND
LEGAL MEANS TO ORGANIZED GOVERNMENT WAS PROTECTED BY THE FREE SPEECH
GUARANTIES OF THE CONSTITUTION.  STROMBERG V. CALIFORNIA, 283 U.S.
359.  HERE IT IS THE STATE THAT EMPLOYS A FLAG AS A SYMBOL OF ADHERENCE
TO GOVERNMENT AS PRESENTLY ORGANIZED.  IT REQUIRES THE INDIVIDUAL TO
COMMUNICATE BY WORD AND SIGN HIS ACCEPTANCE OF THE POLITICAL IDEAS IT
THUS BESPEAKS.  OBJECTION TO THIS FORM OF COMMUNICATION WHEN COERCED IS
AN OLD ONE, WELL KNOWN TO THE FRAMERS OF THE BILL OF RIGHTS.  FN13 

IT IS ALSO TO BE NOTED THAT THE COMPULSORY FLAG SALUTE AND PLEDGE
REQUIRES AFFIRMATION OF A BELIEF AND AN ATTITUDE OF MIND.  IT IS NOT
CLEAR WHETHER THE REGULATION CONTEMPLATES THAT PUPILS FOREGO ANY
CONTRARY CONVICTIONS OF THEIR OWN AND BECOME UNWILLING CONVERTS TO THE
PRESCRIBED CEREMONY OR WHETHER IT WILL BE ACCEPTABLE IF THEY SIMULATE
ASSENT BY WORDS WITHOUT BELIEF AND BY A GESTURE BARREN OF MEANING.  IT
IS NOW A COMMONPLACE THAT CENSORSHIP OR SUPPRESSION OF EXPRESSION OF
OPINION IS TOLERATED BY OUR CONSTITUTION ONLY WHEN THE EXPRESSION
PRESENTS A CLEAR AND PRESENT DANGER OF ACTION OF A KIND THE STATE IS
EMPOWERED TO PREVENT AND PUNISH.  IT WOULD SEEM THAT INVOLUNTARY
AFFIRMATION COULD BE COMMANDED ONLY ON EVEN MORE IMMEDIATE AND URGENT
GROUNDS THAN SILENCE.  BUT HERE THE POWER OF COMPULSION IS INVOKED
WITHOUT ANY ALLEGATION THAT REMAINING PASSIVE DURING A FLAG SALUTE
RITUAL CREATES A CLEAR AND PRESENT DANGER THAT WOULD JUSTIFY AN EFFORT
EVEN TO MUFFLE EXPRESSION.  TO SUSTAIN THE COMPULSORY FLAG SALUTE WE
ARE REQUIRED TO SAY THAT A BILL OF RIGHTS WHICH GUARDS THE INDIVIDUAL'S
RIGHT TO SPEAK HIS OWN MIND, LEFT IT OPEN TO PUBLIC AUTHORITIES TO
COMPEL HIM TO UTTER WHAT IS NOT IN HIS MIND. 

WHETHER THE FIRST AMENDMENT TO THE CONSTITUTION WILL PERMIT OFFICIALS
TO ORDER OBSERVANCE OF RITUAL OF THIS NATURE DOES NOT DEPEND UPON
WHETHER AS A VOLUNTARY EXERCISE WE WOULD THINK IT TO BE GOOD, BAD OR
MERELY INNOCUOUS.  ANY CREDO OF NATIONALISM IS LIKELY TO INCLUDE WHAT
SOME DISAPPROVE OR TO OMIT WHAT OTHERS THINK ESSENTIAL, AND TO GIVE OFF
DIFFERENT OVERTONES AS IT TAKES ON DIFFERENT ACCENTS OR
INTERPRETATIONS.  FN14  IF OFFICIAL POWER EXISTS TO COERCE ACCEPTANCE
OF ANY PATRIOTIC CREED, WHAT IT SHALL CONTAIN CANNOT BE DECIDED BY
COURTS, BUT MUST BE LARGELY DISCRETIONARY WITH THE ORDAINING AUTHORITY,
WHOSE POWER TO PRESCRIBE WOULD NO DOUBT INCLUDE POWER TO AMEND. HENCE
VALIDITY OF THE ASSERTED POWER TO FORCE AN AMERICAN CITIZEN PUBLICLY TO
PROFESS ANY STATEMENT OF BELIEF OR TO ENGAGE IN ANY CEREMONY OF ASSENT
TO ONE, PRESENTS QUESTIONS OF POWER THAT MUST BE CONSIDERED
INDEPENDENTLY OF ANY IDEA WE MAY HAVE AS TO THE UTILITY OF THE CEREMONY
IN QUESTION. 

NOR DOES THE ISSUE AS WE SEE IT TURN ON ONE'S POSSESSION OF
PARTICULAR RELIGIOUS VIEWS OR THE SINCERITY WITH WHICH THEY ARE HELD. 
WHILE RELIGION SUPPLIES APPELLEES' MOTIVE FOR ENDURING THE DISCOMFORTS
OF MAKING THE ISSUE IN THIS CASE, MANY CITIZENS WHO DO NOT SHARE THESE
RELIGIOUS VIEWS HOLD SUCH A COMPULSORY RITE TO INFRINGE CONSTITUTIONAL
LIBERTY OF THE INDIVIDUAL.  FN15  IT IS NOT NECESSARY TO INQUIRE
WHETHER NON-CONFORMIST BELIEFS WILL EXEMPT FROM THE DUTY TO SALUTE
UNLESS WE FIRST FIND POWER TO MAKE THE SALUTE A LEGAL DUTY. 

THE GOBITIS DECISION, HOWEVER, ASSUMED, AS DID THE ARGUMENT IN THAT
CASE AND IN THIS, THAT POWER EXISTS IN THE STATE TO IMPOSE THE FLAG
SALUTE DISCIPLINE UPON SCHOOL CHILDREN IN GENERAL.  THE COURT ONLY
EXAMINED AND REJECTED A CLAIM BASED ON RELIGIOUS BELIEFS OF IMMUNITY
FROM AN UNQUESTIONED GENERAL RULE.  FN16  THE QUESTION WHICH UNDERLIES
THE FLAG SALUTE CONTROVERSY IS WHETHER SUCH A CEREMONY SO TOUCHING
MATTERS OF OPINION AND POLITICAL ATTITUDE MAY BE IMPOSED UPON THE
INDIVIDUAL BY OFFICIAL AUTHORITY UNDER POWERS COMMITTED TO ANY
POLITICAL ORGANIZATION UNDER OUR CONSTITUTION.  WE EXAMINE RATHER THAN
ASSUME EXISTENCE OF THIS POWER AND, AGAINST THIS BROADER DEFINITION OF
ISSUES IN THIS CASE, REEXAMINE SPECIFIC GROUNDS ASSIGNED FOR THE
GOBITIS DECISION. 

1.  IT WAS SAID THAT THE FLAG-SALUTE CONTROVERSY CONFRONTED THE COURT
WITH "THE PROBLEM WHICH LINCOLN CAST IN MEMORABLE DILEMMA:  'MUST A
GOVERNMENT OF NECESSITY BE TOO STRONG FOR THE LIBERTIES OF ITS PEOPLE,
OR TOO WEAK TO MAINTAIN ITS OWN EXISTENCE?'"  AND THAT THE ANSWER MUST
BE IN FAVOR OF STRENGTH.  MINERSVILLE SCHOOL DISTRICT V. GOBITIS,
SUPRA, AT 596. 

WE THINK THESE ISSUES MAY BE EXAMINED FREE OF PRESSURE OR RESTRAINT
GROWING OUT OF SUCH CONSIDERATIONS. 

IT MAY BE DOUBTED WHETHER MR. LINCOLN WOULD HAVE THOUGHT THAT THE
STRENGTH OF GOVERNMENT TO MAINTAIN ITSELF WOULD BE IMPRESSIVELY
VINDICATED BY OUR CONFIRMING POWER OF THE STATE TO EXPEL A HANDFUL OF
CHILDREN FROM SCHOOL.  SUCH OVERSIMPLIFICATION, SO HANDY IN POLITICAL
DEBATE, OFTEN LACKS THE PRECISION NECESSARY TO POSTULATES OF JUDICIAL
REASONING.  IF VALIDLY APPLIED TO THIS PROBLEM, THE UTTERANCE CITED
WOULD RESOLVE EVERY ISSUE OF POWER IN FAVOR OF THOSE IN AUTHORITY AND
WOULD REQUIRE US TO OVERRIDE EVERY LIBERTY THOUGHT TO WEAKEN OR DELAY
EXECUTION OF THEIR POLICIES.    GOVERNMENT OF LIMITED POWER NEED NOT BE
ANEMIC GOVERNMENT.  ASSURANCE THAT RIGHTS ARE SECURE TENDS TO DIMINISH
FEAR AND JEALOUSY OF STRONG GOVERNMENT, AND BY MAKING US FEEL SAFE TO
LIVE UNDER IT MAKES FOR ITS BETTER SUPPORT.  WITHOUT PROMISE OF A
LIMITING BILL OF RIGHTS IT IS DOUBTFUL IF OUR CONSTITUTION COULD HAVE
MUSTERED ENOUGH STRENGTH TO ENABLE ITS RATIFICATION.  TO ENFORCE THOSE
RIGHTS TODAY IS NOT TO CHOOSE WEAK GOVERNMENT OVER STRONG GOVERNMENT. 
IT IS ONLY TO ADHERE AS A MEANS OF STRENGTH TO INDIVIDUAL FREEDOM OF
MIND IN PREFERENCE TO OFFICIALLY DISCIPLINED UNIFORMITY FOR WHICH
HISTORY INDICATES A DISAPPOINTING AND DISASTROUS END. 

THE SUBJECT NOW BEFORE US EXEMPLIFIES THIS PRINCIPLE.  FREE PUBLIC
EDUCATION, IF FAITHFUL TO THE IDEAL OF SECULAR INSTRUCTION AND
POLITICAL NEUTRALITY, WILL NOT BE PARTISAN OR ENEMY OF ANY CLASS,
CREED, PARTY, OR FACTION.  IF IT IS TO IMPOSE ANY IDEOLOGICAL
DISCIPLINE, HOWEVER, EACH PARTY OR DENOMINATION MUST SEEK TO CONTROL,
OR FAILING THAT, TO WEAKEN THE INFLUENCE OF THE EDUCATIONAL SYSTEM. 
OBSERVANCE OF THE LIMITATIONS OF THE CONSTITUTION WILL NOT WEAKEN
GOVERNMENT IN THE FIELD APPROPRIATE FOR ITS EXERCISE. 

2.  IT WAS ALSO CONSIDERED IN THE GOBITIS CASE THAT FUNCTIONS OF
EDUCATIONAL OFFICERS IN STATES, COUNTIES AND SCHOOL DISTRICTS WERE SUCH
THAT TO INTERFERE WITH THEIR AUTHORITY "WOULD IN EFFECT MAKE US THE
SCHOOL BOARD FOR THE COUNTRY."  ID. AT 598. 

THE FOURTEENTH AMENDMENT, AS NOW APPLIED TO THE STATES, PROTECTS THE
CITIZEN AGAINST THE STATE ITSELF AND ALL OF ITS CREATURES - BOARDS OF
EDUCATION NOT EXCEPTED.  THESE HAVE, OF COURSE, IMPORTANT, DELICATE,
AND HIGHLY DISCRETIONARY FUNCTIONS, BUT NONE THAT THEY MAY NOT PERFORM
WITHIN THE LIMITS OF THE BILL OF RIGHTS.  THAT THEY ARE EDUCATING THE
YOUNG FOR CITIZENSHIP IS REASON FOR SCRUPULOUS PROTECTION OF
CONSTITUTIONAL FREEDOMS OF THE INDIVIDUAL, IF WE ARE NOT TO STRANGLE
THE FREE MIND AT ITS SOURCE AND TEACH YOUTH TO DISCOUNT IMPORTANT
PRINCIPLES OF OUR GOVERNMENT AS MERE PLATITUDES. 

SUCH BOARDS ARE NUMEROUS AND THEIR TERRITORIAL JURISDICTION OFTEN
SMALL.  BUT SMALL AND LOCAL AUTHORITY MAY FEEL LESS SENSE OF
RESPONSIBILITY TO THE CONSTITUTION, AND AGENCIES OF PUBLICITY MAY BE
LESS VIGILANT IN CALLING IT TO ACCOUNT.  THE ACTION OF CONGRESS IN
MAKING FLAG OBSERVANCE VOLUNTARY  FN17  AND RESPECTING THE CONSCIENCE
OF THE OBJECTOR IN A MATTER SO VITAL AS RAISING THE ARMY  FN18
CONTRASTS SHARPLY WITH THESE LOCAL REGULATIONS IN MATTERS RELATIVELY
TRIVIAL TO THE WELFARE OF THE NATION.  THERE ARE VILLAGE TYRANTS AS
WELL AS VILLAGE HAMPDENS, BUT NONE WHO ACTS UNDER COLOR OF LAW IS
BEYOND REACH OF THE CONSTITUTION. 

3.  THE GOBITIS OPINION REASONED THAT THIS IS A FIELD "WHERE COURTS
POSSESS NO MARKED AND CERTAINLY NO CONTROLLING COMPETENCE," THAT IT IS
COMMITTED TO THE LEGISLATURES AS WELL AS THE COURTS TO GUARD CHERISHED
LIBERTIES AND THAT IT IS CONSTITUTIONALLY APPROPRIATE TO "FIGHT OUT THE
WISE USE OF LEGISLATIVE AUTHORITY IN THE FORUM OF PUBLIC OPINION AND
BEFORE LEGISLATIVE ASSEMBLIES RATHER THAN TO TRANSFER SUCH A CONTEST TO
THE JUDICIAL ARENA," SINCE ALL THE "EFFECTIVE MEANS OF INDUCING
POLITICAL CHANGES ARE LEFT FREE."  ID. AT 597-598, 600. 

THE VERY PURPOSE OF A BILL OF RIGHTS WAS TO WITHDRAW CERTAIN SUBJECTS
FROM THE VICISSITUDES OF POLITICAL CONTROVERSY, TO PLACE THEM BEYOND
THE REACH OF MAJORITIES AND OFFICIALS AND TO ESTABLISH THEM AS LEGAL
PRINCIPLES TO BE APPLIED BY THE COURTS.  ONE'S RIGHT TO LIFE, LIBERTY,
AND PROPERTY, TO FREE SPEECH, A FREE PRESS, FREEDOM OF WORSHIP AND
ASSEMBLY, AND OTHER FUNDAMENTAL RIGHTS MAY NOT BE SUBMITTED TO VOTE;
THEY DEPEND ON THE OUTCOME OF NO ELECTIONS. 

IN WEIGHING ARGUMENTS OF THE PARTIES IT IS IMPORTANT TO DISTINGUISH
BETWEEN THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AS AN
INSTRUMENT FOR TRANSMITTING THE PRINCIPLES OF THE FIRST AMENDMENT AND
THOSE CASES IN WHICH IT IS APPLIED FOR ITS OWN SAKE.  THE TEST OF
LEGISLATION WHICH COLLIDES WITH THE FOURTEENTH AMENDMENT, BECAUSE IT
ALSO COLLIDES WITH THE PRINCIPLES OF THE FIRST, IS MUCH MORE DEFINITE
THAN THE TEST WHEN ONLY THE FOURTEENTH IS INVOLVED.  MUCH OF THE
VAGUENESS OF THE DUE PROCESS CLAUSE DISAPPEARS WHEN THE SPECIFIC
PROHIBITIONS OF THE FIRST BECOME ITS STANDARD.  THE RIGHT OF A STATE TO
REGULATE, FOR EXAMPLE, A PUBLIC UTILITY MAY WELL INCLUDE, SO FAR AS THE
DUE PROCESS TEST IS CONCERNED, POWER TO IMPOSE ALL OF THE RESTRICTIONS
WHICH A LEGISLATURE MAY HAVE A "RATIONAL BASIS" FOR ADOPTING.  BUT
FREEDOMS OF SPEECH AND OF PRESS, OF ASSEMBLY, AND OF WORSHIP MAY NOT BE
INFRINGED ON SUCH SLENDER GROUNDS.  THEY ARE SUSCEPTIBLE OF RESTRICTION
ONLY TO PREVENT GRAVE AND IMMEDIATE DANGER TO INTERESTS WHICH THE STATE
MAY LAWFULLY PROTECT.  IT IS IMPORTANT TO NOTE THAT WHILE IT IS THE
FOURTEENTH AMENDMENT WHICH BEARS DIRECTLY UPON THE STATE IT IS THE MORE
SPECIFIC LIMITING PRINCIPLES OF THE FIRST AMENDMENT THAT FINALLY GOVERN
THIS CASE. 

NOR DOES OUR DUTY TO APPLY THE BILL OF RIGHTS TO ASSERTIONS OF
OFFICIAL AUTHORITY DEPEND UPON OUR POSSESSION OF MARKED COMPETENCE IN
THE FIELD WHERE THE INVASION OF RIGHTS OCCURS.  TRUE, THE TASK OF
TRANSLATING THE MAJESTIC GENERALITIES OF THE BILL OF RIGHTS, CONCEIVED
AS PART OF THE PATTERN OF LIBERAL GOVERNMENT IN THE EIGHTEENTH CENTURY,
INTO CONCRETE RESTRAINTS ON OFFICIALS DEALING WITH THE PROBLEMS OF THE
TWENTIETH CENTURY, IS ONE TO DISTURB SELF-CONFIDENCE.  THESE PRINCIPLES
GREW IN SOIL WHICH ALSO PRODUCED A PHILOSOPHY THAT THE INDIVIDUAL WAS
THE CENTER OF SOCIETY, THAT HIS LIBERTY WAS ATTAINABLE THROUGH MERE
ABSENCE OF GOVERNMENTAL RESTRAINTS, AND THAT GOVERNMENT SHOULD BE
ENTRUSTED WITH FEW CONTROLS AND ONLY THE MILDEST SUPERVISION OVER MEN'S
AFFAIRS.  WE MUST TRANSPLANT THESE RIGHTS TO A SOIL IN WHICH THE
LAISSEZ-FAIRE CONCEPT OR PRINCIPLE OF NON-INTERFERENCE HAS WITHERED AT
LEAST AS TO ECONOMIC AFFAIRS, AND SOCIAL ADVANCEMENTS ARE INCREASINGLY
SOUGHT THROUGH CLOSER INTEGRATION OF SOCIETY AND THROUGH EXPANDED AND
STRENGTHENED GOVERNMENTAL CONTROLS.  THESE CHANGED CONDITIONS OFTEN
DEPRIVE PRECEDENTS OF RELIABILITY AND CAST US MORE THAN WE WOULD CHOOSE
UPON OUR OWN JUDGMENT.  BUT WE ACT IN THESE MATTERS NOT BY AUTHORITY OF
OUR COMPETENCE BUT BY FORCE OF OUR COMMISSIONS.  WE CANNOT, BECAUSE OF
MODEST ESTIMATES OF OUR COMPETENCE IN SUCH SPECIALTIES AS PUBLIC
EDUCATION, WITHHOLD THE JUDGMENT THAT HISTORY AUTHENTICATES AS THE
FUNCTION OF THIS COURT WHEN LIBERTY IS INFRINGED. 

4.  LASTLY, AND THIS IS THE VERY HEART OF THE GOBITIS OPINION, IT
REASONS THAT "NATIONAL UNITY IS THE BASIS OF NATIONAL SECURITY," THAT
THE AUTHORITIES HAVE "THE RIGHT TO SELECT APPROPRIATE MEANS FOR ITS
ATTAINMENT," AND HENCE REACHES THE CONCLUSION THAT SUCH COMPULSORY
MEASURES TOWARD "NATIONAL UNITY" ARE CONSTITUTIONAL.  ID. AT 595.  UPON
THE VERITY OF THIS ASSUMPTION DEPENDS OUR ANSWER IN THIS CASE. 

NATIONAL UNITY AS AN END WHICH OFFICIALS MAY FOSTER BY PERSUASION AND
EXAMPLE IS NOT IN QUESTION.  THE PROBLEM IS WHETHER UNDER OUR
CONSTITUTION COMPULSION AS HERE EMPLOYED IS A PERMISSIBLE MEANS FOR ITS
ACHIEVEMENT. 

STRUGGLES TO COERCE UNIFORMITY OF SENTIMENT IN SUPPORT OF SOME END
THOUGHT ESSENTIAL TO THEIR TIME AND COUNTRY HAVE BEEN WAGED BY MANY
GOOD AS WELL AS BY EVIL MEN.  NATIONALISM IS A RELATIVELY RECENT
PHENOMENON BUT AT OTHER TIMES AND PLACES THE ENDS HAVE BEEN RACIAL OR
TERRITORIAL SECURITY, SUPPORT OF A DYNASTY OR REGIME, AND PARTICULAR
PLANS FOR SAVING SOULS.  AS FIRST AND MODERATE METHODS TO ATTAIN UNITY
HAVE FAILED, THOSE BENT ON ITS ACCOMPLISHMENT MUST RESORT TO AN EVER
INCREASING SEVERITY.  AS GOVERNMENTAL PRESSURE TOWARD UNITY BECOMES
GREATER, SO STRIFE BECOMES MORE BITTER AS TO WHOSE UNITY IT SHALL BE.
PROBABLY NO DEEPER DIVISION OF OUR PEOPLE COULD PROCEED FROM ANY
PROVOCATION THAN FROM FINDING IT NECESSARY TO CHOOSE WHAT DOCTRINE AND
WHOSE PROGRAM PUBLIC EDUCATIONAL OFFICIALS SHALL COMPEL YOUTH TO UNITE
IN EMBRACING.  ULTIMATE FUTILITY OF SUCH ATTEMPTS TO COMPEL COHERENCE
IS THE LESSON OF EVERY SUCH EFFORT FROM THE ROMAN DRIVE TO STAMP OUT
CHRISTIANITY AS A DISTURBER OF ITS PAGAN UNITY, THE INQUISITION, AS A
MEANS TO RELIGIOUS AND DYNASTIC UNITY, THE SIBERIAN EXILES AS A MEANS
TO RUSSIAN UNITY, DOWN TO THE FAST FAILING EFFORTS OF OUR PRESENT
TOTALITARIAN ENEMIES.  THOSE WHO BEGIN COERCIVE ELIMINATION OF DISSENT
SOON FIND THEMSELVES EXTERMINATING DISSENTERS.  COMPULSORY UNIFICATION
OF OPINION ACHIEVES ONLY THE UNANIMITY OF THE GRAVEYARD. 

IT SEEMS TRITE BUT NECESSARY TO SAY THAT THE FIRST AMENDMENT TO OUR
CONSTITUTION WAS DESIGNED TO AVOID THESE ENDS BY AVOIDING THESE
BEGINNINGS.  THERE IS NO MYSTICISM IN THE AMERICAN CONCEPT OF THE STATE
OR OF THE NATURE OR ORIGIN OF ITS AUTHORITY.  WE SET UP GOVERNMENT BY
CONSENT OF THE GOVERNED, AND THE BILL OF RIGHTS DENIES THOSE IN POWER
ANY LEGAL OPPORTUNITY TO COERCE THAT CONSENT.  AUTHORITY HERE IS TO BE
CONTROLLED BY PUBLIC OPINION, NOT PUBLIC OPINION BY AUTHORITY. 

THE CASE IS MADE DIFFICULT NOT BECAUSE THE PRINCIPLES OF ITS DECISION
ARE OBSCURE BUT BECAUSE THE FLAG INVOLVED IS OUR OWN.  NEVERTHELESS, WE
APPLY THE LIMITATIONS OF THE CONSTITUTION WITH NO FEAR THAT FREEDOM TO
BE INTELLECTUALLY AND SPIRITUALLY DIVERSE OR EVEN CONTRARY WILL
DISINTEGRATE THE SOCIAL ORGANIZATION.  TO BELIEVE THAT PATRIOTISM WILL
NOT FLOURISH IF PATRIOTIC CEREMONIES ARE VOLUNTARY AND SPONTANEOUS
INSTEAD OF A COMPULSORY ROUTINE IS TO MAKE AN UNFLATTERING ESTIMATE OF
THE APPEAL OF OUR INSTITUTIONS TO FREE MINDS.  WE CAN HAVE INTELLECTUAL
INDIVIDUALISM AND THE RICH CULTURAL DIVERSITIES THAT WE OWE TO
EXCEPTIONAL MINDS ONLY AT THE PRICE OF OCCASIONAL ECCENTRICITY AND
ABNORMAL ATTITUDES.  WHEN THEY ARE SO HARMLESS TO OTHERS OR TO THE
STATE AS THOSE WE DEAL WITH HERE, THE PRICE IS NOT TOO GREAT.  BUT
FREEDOM TO DIFFER IS NOT LIMITED TO THINGS THAT DO NOT MATTER MUCH. 
THAT WOULD BE A MERE SHADOW OF FREEDOM.  THE TEST OF ITS SUBSTANCE IS
THE RIGHT TO DIFFER AS TO THINGS THAT TOUCH THE HEART OF THE EXISTING
ORDER. 

IF THERE IS ANY FIXED STAR IN OUR CONSTITUTIONAL CONSTELLATION, IT IS
THAT NO OFFICIAL, HIGH OR PETTY, CAN PRESCRIBE WHAT SHALL BE ORTHODOX
IN POLITICS, NATIONALISM, RELIGION, OR OTHER MATTERS OF OPINION OR
FORCE CITIZENS TO CONFESS BY WORD OR ACT THEIR FAITH THEREIN.  IF THERE
ARE ANY CIRCUMSTANCES WHICH PERMIT AN EXCEPTION, THEY DO NOT NOW OCCUR
TO US.  FN19 

WE THINK THE ACTION OF THE LOCAL AUTHORITIES IN COMPELLING THE FLAG
SALUTE AND PLEDGE TRANSCENDS CONSTITUTIONAL LIMITATIONS ON THEIR POWER
AND INVADES THE SPHERE OF INTELLECT AND SPIRIT WHICH IT IS THE PURPOSE
OF THE FIRST AMENDMENT TO OUR CONSTITUTION TO RESERVE FROM ALL OFFICIAL
CONTROL. 

THE DECISION OF THIS COURT IN MINERSVILLE SCHOOL DISTRICT V. GOBITIS
AND THE HOLDINGS OF THOSE FEW PER CURIAM DECISIONS WHICH PRECEDED AND
FORESHADOWED IT ARE OVERRULED, AND THE JUDGMENT ENJOINING ENFORCEMENT
OF THE WEST VIRGINIA REGULATION IS AFFIRMED. 

FN1  SEC. 1734, WEST VIRGINIA CODE (1941 SUPP.): 

"IN ALL PUBLIC, PRIVATE, PAROCHIAL AND DENOMINATIONAL SCHOOLS LOCATED
WITHIN THIS STATE THERE SHALL BE GIVEN REGULAR COURSES OF INSTRUCTION
IN HISTORY OF THE UNITED STATES, IN CIVICS, AND IN THE CONSTITUTIONS OF
THE UNITED STATES AND OF THE STATE OF WEST VIRGINIA, FOR THE PURPOSE OF
TEACHING, FOSTERING AND PERPETUATING THE IDEALS, PRINCIPLES AND SPIRIT
OF AMERICANISM, AND INCREASING THE KNOWLEDGE OF THE ORGANIZATION AND
MACHINERY OF THE GOVERNMENT OF THE UNITED STATES AND OF THE STATE OF
WEST VIRGINIA.  THE STATE BOARD OF EDUCATION SHALL, WITH THE ADVICE OF
THE STATE SUPERINTENDENT OF SCHOOLS, PRESCRIBE THE COURSES OF STUDY
COVERING THESE SUBJECTS FOR THE PUBLIC ELEMENTARY AND GRAMMAR SCHOOLS,
PUBLIC HIGH SCHOOLS AND STATE NORMAL SCHOOLS.  IT SHALL BE THE DUTY OF
THE OFFICIALS OR BOARDS HAVING AUTHORITY OVER THE RESPECTIVE PRIVATE,
PAROCHIAL AND DENOMINATIONAL SCHOOLS TO PRESCRIBE COURSES OF STUDY FOR
THE SCHOOLS UNDER THEIR CONTROL AND SUPERVISION SIMILAR TO THOSE
REQUIRED FOR THE PUBLIC SCHOOLS." 

FN2  THE TEXT IS AS FOLLOWS: 

"WHEREAS, THE WEST VIRGINIA STATE BOARD OF EDUCATION HOLDS IN HIGHEST
REGARD THOSE RIGHTS AND PRIVILEGES GUARANTEED BY THE BILL OF RIGHTS IN
THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND IN THE
CONSTITUTION OF WEST VIRGINIA, SPECIFICALLY, THE FIRST AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES AS RESTATED IN THE FOURTEENTH
AMENDMENT TO THE SAME DOCUMENT AND IN THE GUARANTEE OF RELIGIOUS
FREEDOM IN ARTICLE III OF THE CONSTITUTION OF THIS STATE, AND 

"WHEREAS, THE WEST VIRGINIA STATE BOARD OF EDUCATION HONORS THE BROAD
PRINCIPLE THAT ONE'S CONVICTIONS ABOUT THE ULTIMATE MYSTERY OF THE
UNIVERSE AND MAN'S RELATION TO IT IS PLACED BEYOND THE REACH OF LAW;
THAT THE PROPAGATION OF BELIEF IS PROTECTED WHETHER IN CHURCH OR
CHAPEL, MOSQUE OR SYNAGOGUE, TABERNACLE OR MEETING HOUSE; THAT THE
CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF WEST VIRGINIA
ASSURE GENEROUS IMMUNITY TO THE INDIVIDUAL FROM IMPOSITION OF PENALTY
FOR OFFENDING, IN THE COURSE OF HIS OWN RELIGIOUS ACTIVITIES, THE
RELIGIOUS VIEWS OF OTHERS, BE THEY A MINORITY OR THOSE WHO ARE DOMINANT
IN THE GOVERNMENT, BUT 

"WHEREAS, THE WEST VIRGINIA STATE BOARD OF EDUCATION RECOGNIZES THAT
THE MANIFOLD CHARACTER OF MAN'S RELATIONS MAY BRING HIS CONCEPTION OF
RELIGIOUS DUTY INTO CONFLICT WITH THE SECULAR INTERESTS OF HIS
FELLOWMAN; THAT CONSCIENTIOUS SCRUPLES HAVE NOT IN THE COURSE OF THE
LONG STRUGGLE FOR RELIGIOUS TOLERATION RELIEVED THE INDIVIDUAL FROM
OBEDIENCE TO THE GENERAL LAW NOT AIMED AT THE PROMOTION OR RESTRICTION
OF THE RELIGIOUS BELIEFS; THAT THE MERE POSSESSION OF CONVICTIONS WHICH
CONTRADICT THE RELEVANT CONCERNS OF POLITICAL SOCIETY DOES NOT RELIEVE
THE CITIZEN FROM THE DISCHARGE OF POLITICAL RESPONSIBILITY, AND 
"WHEREAS, THE WEST VIRGINIA STATE BOARD OF EDUCATION HOLDS THAT
NATIONAL UNITY IS THE BASIS OF NATIONAL SECURITY; THAT THE FLAG OF OUR
NATION IS THE SYMBOL OF OUR NATIONAL UNITY TRANSCENDING ALL INTERNAL
DIFFERENCES, HOWEVER LARGE WITHIN THE FRAMEWORK OF THE CONSTITUTION;
THAT THE FLAG IS THE SYMBOL OF THE NATION'S POWER; THAT EMBLEM OF
FREEDOM IN ITS TRUEST, BEST SENSE; THAT IT SIGNIFIES GOVERNMENT RESTING
ON THE CONSENT OF THE GOVERNED, LIBERTY REGULATED BY LAW, PROTECTION OF
THE WEAK AGAINST THE STRONG, SECURITY AGAINST THE EXERCISE OF ARBITRARY
POWER, AND ABSOLUTE SAFETY FOR FREE INSTITUTIONS AGAINST FOREIGN
AGGRESSION, AND 

"WHEREAS, THE WEST VIRGINIA STATE BOARD OF EDUCATION MAINTAINS THAT
THE PUBLIC SCHOOLS, ESTABLISHED BY THE LEGISLATURE OF THE STATE OF WEST
VIRGINIA UNDER THE AUTHORITY OF THE CONSTITUTION OF THE STATE OF WEST
VIRGINIA AND SUPPORTED BY TAXES IMPOSED BY LEGALLY CONSTITUTED
MEASURES, ARE DEALING WITH THE FORMATIVE PERIOD IN THE DEVELOPMENT IN
CITIZENSHIP THAT THE FLAG IS AN ALLOWABLE PORTION OF THE PROGRAM OF
SCHOOLS THUS PUBLICLY SUPPORTED. 

"THEREFORE, BE IT RESOLVED, THAT THE WEST VIRGINIA BOARD OF EDUCATION
DOES HEREBY RECOGNIZE AND ORDER THAT THE COMMONLY ACCEPTED SALUTE TO
THE FLAG OF THE UNITED STATES - THE RIGHT HAND IS PLACED UPON THE
BREAST AND THE FOLLOWING PLEDGE REPEATED IN UNISON:  'I PLEDGE
ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA AND TO THE
REPUBLIC FOR WHICH IT STANDS; ONE NATION, INDIVISIBLE, WITH LIBERTY AND
JUSTICE FOR ALL' - NOW BECOMES A REGULAR PART OF THE PROGRAM OF
ACTIVITIES IN THE PUBLIC SCHOOLS, SUPPORTED IN WHOLE OR IN PART BY
PUBLIC FUNDS, AND THAT ALL TEACHERS AS DEFINED BY LAW IN WEST VIRGINIA
AND PUPILS IN SUCH SCHOOLS SHALL BE REQUIRED TO PARTICIPATE IN THE
SALUTE, HONORING THE NATION REPRESENTED BY THE FLAG; PROVIDED, HOWEVER,
THAT REFUSAL TO SALUTE THE FLAG BE REGARDED AS AN ACT OF
INSUBORDINATION, AND SHALL BE DEALT WITH ACCORDINGLY." 

FN3  THE NATIONAL HEADQUARTERS OF THE UNITED STATES FLAG ASSOCIATION
TAKES THE POSITION THAT THE EXTENSION OF THE RIGHT ARM IN THIS SALUTE
TO THE FLAG IS NOT THE NAZI-FASCIST SALUTE, "ALTHOUGH QUITE SIMILAR TO
IT.  IN THE PLEDGE TO THE FLAG THE RIGHT ARM IS EXTENDED AND RAISED,
PALM UPWARD, WHEREAS THE NAZIS EXTEND THE ARM PRACTICALLY STRAIGHT TO
THE FRONT (THE FINGER TIPS BEING ABOUT EVEN WITH THE EYES), PALM
DOWNWARD, AND THE FASCISTS DO THE SAME EXCEPT THEY RAISE THE ARM
SLIGHTLY HIGHER."  JAMES A. MOSS, THE FLAG OF THE UNITED STATES:  ITS
HISTORY AND SYMBOLISM (1914) 108. 

FN4  THEY HAVE OFFERED IN LIEU OF PARTICIPATING IN THE FLAG SALUTE
CEREMONY "PERIODICALLY AND PUBLICLY" TO GIVE THE FOLLOWING PLEDGE: 

"I HAVE PLEDGED MY UNQUALIFIED ALLEGIANCE AND DEVOTION TO JEHOVAH,
THE ALMIGHTY GOD, AND TO HIS KINGDOM, FOR WHICH JESUS COMMANDS ALL
CHRISTIANS TO PRAY. 

"I RESPECT THE FLAG OF THE UNITED STATES AND ACKNOWLEDGE IT AS A
SYMBOL OF FREEDOM AND JUSTICE TO ALL. 

"I PLEDGE ALLEGIANCE AND OBEDIENCE TO ALL THE LAWS OF THE UNITED
STATES THAT ARE CONSISTENT WITH GOD'S LAW, AS SET FORTH IN THE BIBLE." 

FN5  SEC. 1851(1), WEST VIRGINIA CODE (1941 SUPP.): 

"IF A CHILD BE DISMISSED, SUSPENDED, OR EXPELLED FROM SCHOOL BECAUSE
OF REFUSAL OF SUCH CHILD TO MEET THE LEGAL AND LAWFUL REQUIREMENTS OF
THE SCHOOL AND THE ESTABLISHED REGULATIONS OF THE COUNTY AND/OR STATE
BOARD OF EDUCATION, FURTHER ADMISSION OF THE CHILD TO SCHOOL SHALL BE
REFUSED UNTIL SUCH REQUIREMENTS AND REGULATIONS BE COMPLIED WITH.  ANY
SUCH CHILD SHALL BE TREATED AS BEING UNLAWFULLY ABSENT FROM SCHOOL
DURING THE TIME HE REFUSES TO COMPLY WITH SUCH REQUIREMENTS AND
REGULATIONS, AND ANY PERSON HAVING LEGAL OR ACTUAL CONTROL OF SUCH
CHILD SHALL BE LIABLE TO PROSECUTION UNDER THE PROVISIONS OF THIS
ARTICLE FOR THE ABSENCE OF SUCH CHILD FROM SCHOOL." 

FN6  SEC. 4904(4), WEST VIRGINIA CODE (1941 SUPP.). 

FN7  SEE NOTE 5, SUPRA. 

FN8  SECS. 1847, 1851, WEST VIRGINIA CODE (1941 SUPP.). 

FN9  SEC. 266 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 380. 

FN10  SEE AUTHORITIES CITED IN HELVERING V. GRIFFITHS, 318 U.S. 371,
401, NOTE 52. 

FN11  SEE THE NATION-WIDE SURVEY OF THE STUDY OF AMERICAN HISTORY
CONDUCTED BY THE NEW YORK TIMES, THE RESULTS OF WHICH ARE PUBLISHED IN
THE ISSUE OF JUNE 21, 1942, AND ARE THERE SUMMARIZED ON P. 1, COL. 1,
AS FOLLOWS: 

"82 PER CENT OF THE INSTITUTIONS OF HIGHER LEARNING IN THE UNITED
STATES DO NOT REQUIRE THE STUDY OF UNITED STATES HISTORY FOR THE
UNDERGRADUATE DEGREE.  EIGHTEEN PER CENT OF THE COLLEGES AND
UNIVERSITIES REQUIRE SUCH HISTORY COURSES BEFORE A DEGREE IS AWARDED. 
IT WAS FOUND THAT MANY STUDENTS COMPLETE THEIR FOUR YEARS IN COLLEGE
WITHOUT TAKING ANY HISTORY COURSES DEALING WITH THIS COUNTRY. 

"SEVENTY-TWO PER CENT OF THE COLLEGES AND UNIVERSITIES DO NOT REQUIRE
UNITED STATES HISTORY FOR ADMISSION, WHILE 28 PER CENT REQUIRE IT.  AS
A RESULT, THE SURVEY REVEALED, MANY STUDENTS GO THROUGH HIGH SCHOOL,
COLLEGE AND THEN TO THE PROFESSIONAL OR GRADUATE INSTITUTION WITHOUT
HAVING EXPLORED COURSES IN THE HISTORY OF THEIR COUNTRY. 

"LESS THAN 10 PER CENT OF THE TOTAL UNDERGRADUATE BODY WAS ENROLLED
IN UNITED STATES HISTORY CLASSES DURING THE SPRING SEMESTER JUST
ENDED.  ONLY 8 PER CENT OF THE FRESHMAN CLASS TOOK COURSES IN UNITED
STATES HISTORY, ALTHOUGH 30 PER CENT WAS ENROLLED IN EUROPEAN OR WORLD
HISTORY COURSES." 

FN12  THE RESOLUTION OF THE BOARD OF EDUCATION DID NOT ADOPT THE FLAG
SALUTE BECAUSE IT WAS CLAIMED TO HAVE EDUCATIONAL VALUE.  IT SEEMS TO
HAVE BEEN CONCERNED WITH PROMOTION OF NATIONAL UNITY (SEE FOOTNOTE 2),
WHICH JUSTIFICATION IS CONSIDERED LATER IN THIS OPINION.  NO
INFORMATION AS TO ITS EDUCATIONAL ASPECT IS CALLED TO OUR ATTENTION
EXCEPT OLANDER, CHILDREN'S KNOWLEDGE OF THE FLAG SALUTE, 35 JOURNAL OF
EDUCATIONAL RESEARCH 300, 305, WHICH SETS FORTH A STUDY OF THE ABILITY
OF A LARGE AND REPRESENTATIVE NUMBER OF CHILDREN TO REMEMBER AND STATE
THE MEANING OF THE FLAG SALUTE WHICH THEY RECITED EACH DAY IN SCHOOL. 
HIS CONCLUSION WAS THAT IT REVEALED "A RATHER PATHETIC PICTURE OF OUR
ATTEMPTS TO TEACH CHILDREN NOT ONLY THE WORDS BUT THE MEANING OF OUR
FLAG SALUTE." 

FN13  EARLY CHRISTIANS WERE FREQUENTLY PERSECUTED FOR THEIR REFUSAL
TO PARTICIPATE IN CEREMONIES BEFORE THE STATUE OF THE EMPEROR OR OTHER
SYMBOL OF IMPERIAL AUTHORITY.  THE STORY OF WILLIAM TELL'S SENTENCE TO
SHOOT AN APPLE OFF HIS SON'S HEAD FOR REFUSAL TO SALUTE A BAILIFF'S HAT
IS AN ANCIENT ONE.  21 ENCYCLOPEDIA BRITANNICA (14TH ED.)  911-912. 
THE QUAKERS, WILLIAM PENN INCLUDED, SUFFERED PUNISHMENT RATHER THAN
UNCOVER THEIR HEADS IN DEFERENCE TO ANY CIVIL AUTHORITY.  BRAITHWAITE,
THE BEGINNINGS OF QUAKERISM (1912) 200, 229-230, 232-233, 447, 451;
FOX, QUAKERS COURAGEOUS (1941) 113. 

FN14 FOR EXAMPLE:  USE OF "REPUBLIC," IF RENDERED TO DISTINGUISH OUR
GOVERNMENT FROM A "DEMOCRACY," OR THE WORDS "ONE NATION," IF INTENDED
TO DISTINGUISH IT FROM A "FEDERATION," OPEN UP OLD AND BITTER
CONTROVERSIES IN OUR POLITICAL HISTORY; "LIBERTY AND JUSTICE FOR ALL,"
IF IT MUST BE ACCEPTED AS DESCRIPTIVE OF THE PRESENT ORDER RATHER THAN
AN IDEAL, MIGHT TO SOME SEEM AN OVERSTATEMENT. 

FN15  CUSHMAN, CONSTITUTIONAL LAW IN 1939-40, 35 AMERICAN POLITICAL
SCIENCE REVIEW 250, 271, OBSERVES:  "ALL OF THE ELOQUENCE BY WHICH THE
MAJORITY EXTOL THE CEREMONY OF FLAG SALUTING AS A FREE EXPRESSION OF
PATRIOTISM TURNS SOUR WHEN USED TO DESCRIBE THE BRUTAL COMPULSION WHICH
REQUIRES A SENSITIVE AND CONSCIENTIOUS CHILD TO STULTIFY HIMSELF IN
PUBLIC."  FOR FURTHER CRITICISM OF THE OPINION IN THE GOBITIS CASE BY
PERSONS WHO DO NOT SHARE THE FAITH OF THE WITNESSES SEE:  POWELL,
CONSCIENCE AND THE CONSTITUTION, IN DEMOCRACY AND NATIONAL UNITY
(UNIVERSITY OF CHICAGO PRESS, 1941) 1; WILKINSON, SOME ASPECTS OF THE
CONSTITUTIONAL GUARANTEES OF CIVIL LIBERTY, 11 FORDHAM LAW REVIEW 50;
FENNELL, THE "RECONSTRUCTED COURT" AND RELIGIOUS FREEDOM: THE GOBITIS
CASE IN RETROSPECT, 19 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW 31;
GREEN, LIBERTY UNDER THE FOURTEENTH AMENDMENT, 27 WASHINGTON UNIVERSITY
LAW QUARTERLY 497; 9 INTERNATIONAL JURIDICAL ASSOCIATION BULLETIN 1; 39
MICHIGAN LAW REVIEW 149; 15 ST. JOHN'S LAW REVIEW 95. 

FN16  THE OPINION SAYS "THAT THE FLAG-SALUTE IS AN ALLOWABLE PORTION
OF A SCHOOL PROGRAM FOR THOSE WHO DO NOT INVOKE CONSCIENTIOUS SCRUPLES
IS SURELY NOT DEBATABLE.  BUT FOR US TO INSIST THAT, THOUGH THE
CEREMONY MAY BE REQUIRED, EXCEPTIONAL IMMUNITY MUST BE GIVEN TO
DISSIDENTS, IS TO MAINTAIN THAT THERE IS NO BASIS FOR A LEGISLATIVE
JUDGMENT THAT SUCH AN EXEMPTION MIGHT INTRODUCE ELEMENTS OF DIFFICULTY
INTO THE SCHOOL DISCIPLINE, MIGHT CAST DOUBTS IN THE MINDS OF THE OTHER
CHILDREN WHICH WOULD THEMSELVES WEAKEN THE EFFECT OF THE EXERCISE." 
310 U.S. AT 599-600.  AND ELSEWHERE THE QUESTION UNDER CONSIDERATION
WAS STATED, "WHEN DOES THE CONSTITUTIONAL GUARANTEE COMPEL EXEMPTION
FROM DOING WHAT SOCIETY THINKS NECESSARY FOR THE PROMOTION OF SOME
GREAT COMMON END, OR FROM A PENALTY FOR CONDUCT WHICH APPEARS DANGEROUS
TO THE GENERAL GOOD?"  ID. AT 593.  AND AGAIN,  "...  WHETHER SCHOOL
CHILDREN, LIKE THE GOBITIS CHILDREN, MUST BE EXCUSED FROM CONDUCT
REQUIRED OF ALL THE OTHER CHILDREN IN THE PROMOTION OF NATIONAL
COHESION.  ..."  ID. AT 595. 

FN17  SECTION 7 OF HOUSE JOINT RESOLUTION 359, APPROVED DECEMBER 22,
1942, 56 STAT. 1074, 36 U.S.C. (1942 SUPP.) SEC. 172, PRESCRIBES NO
PENALTIES FOR NONCONFORMITY BUT PROVIDES: 

"THAT THE PLEDGE OF ALLEGIANCE TO THE FLAG, 'I PLEDGE ALLEGIANCE TO
THE FLAG OF THE UNITED STATES OF AMERICA AND TO THE REPUBLIC FOR WHICH
IT STANDS, ONE NATION INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL,'
BE RENDERED BY STANDING WITH THE RIGHT HAND OVER THE HEART.  HOWEVER,
CIVILIANS WILL ALWAYS SHOW FULL RESPECT TO THE FLAG WHEN THE PLEDGE IS
GIVEN BY MERELY STANDING AT ATTENTION, MEN REMOVING THE HEADDRESS  ...
" 

FN18  SEC. 5(A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 50
U.S.C. (APP.) SEC. 307(G). 

FN19  THE NATION MAY RAISE ARMIES AND COMPEL CITIZENS TO GIVE
MILITARY SERVICE.  SELECTIVE DRAFT LAW CASES, 245 U.S. 366.  IT
FOLLOWS, OF COURSE, THAT THOSE SUBJECT TO MILITARY DISCIPLINE ARE UNDER
MANY DUTIES AND MAY NOT CLAIM MANY FREEDOMS THAT WE HOLD INVIOLABLE AS
TO THOSE IN CIVILIAN LIFE. 

MR. JUSTICE ROBERTS AND MR. JUSTICE REED ADHERE TO THE VIEWS
EXPRESSED BY THE COURT IN MINERSVILLE SCHOOL DISTRICT V. GOBITIS, 310
U.S. 586, AND ARE OF THE OPINION THAT THE JUDGMENT BELOW SHOULD BE
REVERSED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, CONCURRING: 

WE ARE SUBSTANTIALLY IN AGREEMENT WITH THE OPINION JUST READ, BUT
SINCE WE ORIGINALLY JOINED WITH THE COURT IN THE GOBITIS CASE, IT IS
APPROPRIATE THAT WE MAKE A BRIEF STATEMENT OF REASONS FOR OUR CHANGE OF
VIEW. 

RELUCTANCE TO MAKE THE FEDERAL CONSTITUTION A RIGID BAR AGAINST STATE
REGULATION OF CONDUCT THOUGHT INIMICAL TO THE PUBLIC WELFARE WAS THE
CONTROLLING INFLUENCE WHICH MOVED US TO CONSENT TO THE GOBITIS
DECISION.  LONG REFLECTION CONVINCED US THAT ALTHOUGH THE PRINCIPLE IS
SOUND, ITS APPLICATION IN THE PARTICULAR CASE WAS WRONG.  JONES V.
OPELIKA, 316 U.S. 584, 623.  WE BELIEVE THAT THE STATUTE BEFORE US
FAILS TO ACCORD FULL SCOPE TO THE FREEDOM OF RELIGION SECURED TO THE
APPELLEES BY THE FIRST AND FOURTEENTH AMENDMENTS. 

THE STATUTE REQUIRES THE APPELLEES TO PARTICIPATE IN A CEREMONY AIMED
AT INCULCATING RESPECT FOR THE FLAG AND FOR THIS COUNTRY.  THE
JEHOVAH'S WITNESSES, WITHOUT ANY DESIRE TO SHOW DISRESPECT FOR EITHER
THE FLAG OR THE COUNTRY, INTERPRET THE BIBLE AS COMMANDING, AT THE RISK
OF GOD'S DISPLEASURE, THAT THEY NOT GO THROUGH THE FORM OF A PLEDGE OF
ALLEGIANCE TO ANY FLAG.  THE DEVOUTNESS OF THEIR BELIEF IS EVIDENCED BY
THEIR WILLINGNESS TO SUFFER PERSECUTION AND PUNISHMENT, RATHER THAN
MAKE THE PLEDGE. 

NO WELL-ORDERED SOCIETY CAN LEAVE TO THE INDIVIDUALS AN ABSOLUTE
RIGHT TO MAKE FINAL DECISIONS, UNASSAILABLE BY THE STATE, AS TO
EVERYTHING THEY WILL OR WILL NOT DO.  THE FIRST AMENDMENT DOES NOT GO
SO FAR.  RELIGIOUS FAITHS, HONESTLY HELD, DO NOT FREE INDIVIDUALS FROM
RESPONSIBILITY TO CONDUCT THEMSELVES OBEDIENTLY TO LAWS WHICH ARE
EITHER IMPERATIVELY NECESSARY TO PROTECT SOCIETY AS A WHOLE FROM GRAVE
AND PRESSINGLY IMMINENT DANGERS OR WHICH, WITHOUT ANY GENERAL
PROHIBITION, MERELY REGULATE TIME, PLACE OR MANNER OF RELIGIOUS
ACTIVITY.  DECISION AS TO THE CONSTITUTIONALITY OF PARTICULAR LAWS
WHICH STRIKE AT THE SUBSTANCE OF RELIGIOUS TENETS AND PRACTICES MUST BE
MADE BY THIS COURT.  THE DUTY IS A SOLEMN ONE, AND IN MEETING IT WE
CANNOT SAY THAT A FAILURE, BECAUSE OF RELIGIOUS SCRUPLES, TO ASSUME A
PARTICULAR PHYSICAL POSITION AND TO REPEAT THE WORDS OF A PATRIOTIC
FORMULA CREATES A GRAVE DANGER TO THE NATION.  SUCH A STATUTORY
EXACTION IS A FORM OF TEST OATH, AND THE TEST OATH HAS ALWAYS BEEN
ABHORRENT IN THE UNITED STATES. 

WORDS UTTERED UNDER COERCION ARE PROOF OF LOYALTY TO NOTHING BUT SELF
INTEREST.  LOVE OF COUNTRY MUST SPRING FROM WILLING HEARTS AND FREE
MINDS, INSPIRED BY A FAIR ADMINISTRATION OF WISE LAWS ENACTED BY THE
PEOPLE'S ELECTED REPRESENTATIVES WITHIN THE BOUNDS OF EXPRESS
CONSTITUTIONAL PROHIBITIONS.  THESE LAWS MUST, TO BE CONSISTENT WITH
THE FIRST AMENDMENT, PERMIT THE WIDEST TOLERATION OF CONFLICTING
VIEWPOINTS CONSISTENT WITH A SOCIETY OF FREE MEN. 

NEITHER OUR DOMESTIC TRANQUILLITY IN PEACE NOR OUR MARTIAL EFFORT IN
WAR DEPEND ON COMPELLING LITTLE CHILDREN TO PARTICIPATE IN A CEREMONY
WHICH ENDS IN NOTHING FOR THEM BUT A FEAR OF SPIRITUAL CONDEMNATION. 
IF, AS WE THINK, THEIR FEARS ARE GROUNDLESS, TIME AND REASON ARE THE
PROPER ANTIDOTES FOR THEIR ERRORS.  THE CEREMONIAL, WHEN ENFORCED
AGAINST CONSCIENTIOUS OBJECTORS, MORE LIKELY TO DEFEAT THAN TO SERVE
ITS HIGH PURPOSE, IS A HANDY IMPLEMENT FOR DISGUISED RELIGIOUS
PERSECUTION.  AS SUCH, IT IS INCONSISTENT WITH OUR CONSTITUTION'S PLAN
AND PURPOSE.    MR. JUSTICE MURPHY, CONCURRING: 

I AGREE WITH THE OPINION OF THE COURT AND JOIN IN IT. 

THE COMPLAINT CHALLENGES AN ORDER OF THE STATE BOARD OF EDUCATION
WHICH REQUIRES TEACHERS AND PUPILS TO PARTICIPATE IN THE PRESCRIBED
SALUTE TO THE FLAG.  FOR REFUSAL TO CONFORM WITH THE REQUIREMENT, THE
STATE LAW PRESCRIBES EXPULSION.  THE OFFENDER IS REQUIRED BY LAW TO BE
TREATED AS UNLAWFULLY ABSENT FROM SCHOOL AND THE PARENT OR GUARDIAN IS
MADE LIABLE TO PROSECUTION AND PUNISHMENT FOR SUCH ABSENCE.  THUS NOT
ONLY IS THE PRIVILEGE OF PUBLIC EDUCATION CONDITIONED ON COMPLIANCE
WITH THE REQUIREMENT, BUT NONCOMPLIANCE IS VIRTUALLY MADE UNLAWFUL.  IN
EFFECT COMPLIANCE IS COMPULSORY AND NOT OPTIONAL.  IT IS THE CLAIM OF
APPELLEES THAT THE REGULATION IS INVALID AS A RESTRICTION ON RELIGIOUS
FREEDOM AND FREEDOM OF SPEECH, SECURED TO THEM AGAINST STATE
INFRINGEMENT BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION
OF THE UNITED STATES. 

A RELUCTANCE TO INTERFERE WITH CONSIDERED STATE ACTION, THE FACT THAT
THE END SOUGHT IS A DESIRABLE ONE, THE EMOTION AROUSED BY THE FLAG AS A
SYMBOL FOR WHICH WE HAVE FOUGHT AND ARE NOW FIGHTING AGAIN,  - ALL OF
THESE ARE UNDERSTANDABLE.  BUT THERE IS BEFORE US THE RIGHT OF FREEDOM
TO BELIEVE, FREEDOM TO WORSHIP ONE'S MAKER ACCORDING TO THE DICTATES OF
ONE'S CONSCIENCE, A RIGHT WHICH THE CONSTITUTION SPECIFICALLY
SHELTERS.  REFLECTION HAS CONVINCED ME THAT AS A JUDGE I HAVE NO
LOFTIER DUTY OR RESPONSIBILITY THAN TO UPHOLD THAT SPIRITUAL FREEDOM TO
ITS FARTHEST REACHES. 

THE RIGHT OF FREEDOM OF THOUGHT AND OF RELIGION AS GUARANTEED BY THE
CONSTITUTION AGAINST STATE ACTION INCLUDES BOTH THE RIGHT TO SPEAK
FREELY AND THE RIGHT TO REFRAIN FROM SPEAKING AT ALL, EXCEPT INSOFAR AS
ESSENTIAL OPERATIONS OF GOVERNMENT MAY REQUIRE IT FOR THE PRESERVATION
OF AN ORDERLY SOCIETY,  - AS IN THE CASE OF COMPULSION TO GIVE EVIDENCE
IN COURT.  WITHOUT WISHING TO DISPARAGE THE PURPOSES AND INTENTIONS OF
THOSE WHO HOPE TO INCULCATE SENTIMENTS OF LOYALTY AND PATRIOTISM BY
REQUIRING A DECLARATION OF ALLEGIANCE AS A FEATURE OF PUBLIC EDUCATION,
OR UNDULY BELITTLE THE BENEFITS THAT MAY ACCRUE THEREFROM, I AM
IMPELLED TO CONCLUDE THAT SUCH A REQUIREMENT IS NOT ESSENTIAL TO THE
MAINTENANCE OF EFFECTIVE GOVERNMENT AND ORDERLY SOCIETY.  TO MANY IT IS
DEEPLY DISTASTEFUL TO JOIN IN A PUBLIC CHORUS OF AFFIRMATION OF PRIVATE
BELIEF.  BY SOME, INCLUDING THE MEMBERS OF THIS SECT, IT IS APPARENTLY
REGARDED AS INCOMPATIBLE WITH A PRIMARY RELIGIOUS OBLIGATION AND
THEREFORE A RESTRICTION ON RELIGIOUS FREEDOM.  OFFICIAL COMPULSION TO
AFFIRM WHAT IS CONTRARY TO ONE'S RELIGIOUS BELIEFS IS THE ANTITHESIS OF
FREEDOM OF WORSHIP WHICH, IT IS WELL TO RECALL, WAS ACHIEVED IN THIS
COUNTRY ONLY AFTER WHAT JEFFERSON CHARACTERIZED AS THE "SEVEREST
CONTESTS IN WHICH I HAVE EVER BEEN ENGAGED."  FN1 

I AM UNABLE TO AGREE THAT THE BENEFITS THAT MAY ACCRUE TO SOCIETY
FROM THE COMPULSORY FLAG SALUTE ARE SUFFICIENTLY DEFINITE AND TANGIBLE
TO JUSTIFY THE INVASION OF FREEDOM AND PRIVACY THAT IS ENTAILED OR TO
COMPENSATE FOR A RESTRAINT ON THE FREEDOM OF THE INDIVIDUAL TO BE VOCAL
OR SILENT ACCORDING TO HIS CONSCIENCE OR PERSONAL INCLINATION.  THE
TRENCHANT WORDS IN THE PREAMBLE TO THE VIRGINIA STATUTE FOR RELIGIOUS
FREEDOM REMAIN UNANSWERABLE:  "  ...  ALL ATTEMPTS TO INFLUENCE (THE
MIND) BY TEMPORAL PUNISHMENTS, OR BURDENS, OR BY CIVIL INCAPACITATIONS,
TEND ONLY TO BEGET HABITS OF HYPOCRISY AND MEANNESS,  ...  "  ANY SPARK
OF LOVE FOR COUNTRY WHICH MAY BE GENERATED IN A CHILD OR HIS ASSOCIATES
BY FORCING HIM TO MAKE WHAT IS TO HIM AN EMPTY GESTURE AND RECITE WORDS
WRUNG FROM HIM CONTRARY TO HIS RELIGIOUS BELIEFS IS OVERSHADOWED BY THE
DESIRABILITY OF PRESERVING FREEDOM OF CONSCIENCE TO THE FULL.  IT IS IN
THAT FREEDOM AND THE EXAMPLE OF PERSUASION, NOT IN FORCE AND
COMPULSION, THAT THE REAL UNITY OF AMERICA LIES. 

FN1  SEE JEFFERSON, AUTOBIOGRAPHY, VOL. 1, PP. 53-59. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

ONE WHO BELONGS TO THE MOST VILIFIED AND PERSECUTED MINORITY IN
HISTORY IS NOT LIKELY TO BE INSENSIBLE TO THE FREEDOMS GUARANTEED BY
OUR CONSTITUTION.  WERE MY PURELY PERSONAL ATTITUDE RELEVANT I SHOULD
WHOLEHEARTEDLY ASSOCIATE MYSELF WITH THE GENERAL LIBERTARIAN VIEWS IN
THE COURT'S OPINION, REPRESENTING AS THEY DO THE THOUGHT AND ACTION OF
A LIFETIME.  BUT AS JUDGES WE ARE NEITHER JEW NOR GENTILE, NEITHER
CATHOLIC NOR AGNOSTIC.  WE OWE EQUAL ATTACHMENT TO THE CONSTITUTION AND
ARE EQUALLY BOUND BY OUR JUDICIAL OBLIGATIONS WHETHER WE DERIVE OUR
CITIZENSHIP FROM THE EARLIEST OR THE LATEST IMMIGRANTS TO THESE
SHORES.  AS A MEMBER OF THIS COURT I AM NOT JUSTIFIED IN WRITING MY
PRIVATE NOTIONS OF POLICY INTO THE CONSTITUTION, NO MATTER HOW DEEPLY I
MAY CHERISH THEM OR HOW MISCHIEVOUS I MAY DEEM THEIR DISREGARD.  THE
DUTY OF A JUDGE WHO MUST DECIDE WHICH OF TWO CLAIMS BEFORE THE COURT
SHALL PREVAIL, THAT OF A STATE TO ENACT AND ENFORCE LAWS WITHIN ITS
GENERAL COMPETENCE OR THAT OF AN INDIVIDUAL TO REFUSE OBEDIENCE BECAUSE
OF THE DEMANDS OF HIS CONSCIENCE, IS NOT THAT OF THE ORDINARY PERSON. 
IT CAN NEVER BE EMPHASIZED TOO MUCH THAT ONE'S OWN OPINION ABOUT THE
WISDOM OR EVIL OF A LAW SHOULD BE EXCLUDED ALTOGETHER WHEN ONE IS DOING
ONE'S DUTY ON THE BENCH.  THE ONLY OPINION OF OUR OWN EVEN LOOKING IN
THAT DIRECTION THAT IS MATERIAL IS OUR OPINION WHETHER LEGISLATORS
COULD IN REASON HAVE ENACTED SUCH A LAW.  IN THE LIGHT OF ALL THE
CIRCUMSTANCES, INCLUDING THE HISTORY OF THIS QUESTION IN THIS COURT, IT
WOULD REQUIRE MORE DARING THAN I POSSESS TO DENY THAT REASONABLE
LEGISLATORS COULD HAVE TAKEN THE ACTION WHICH IS BEFORE US FOR REVIEW. 
MOST UNWILLINGLY, THEREFORE, I MUST DIFFER FROM MY BRETHREN WITH REGARD
TO LEGISLATION LIKE THIS.  I CANNOT BRING MY MIND TO BELIEVE THAT THE
"LIBERTY" SECURED BY THE DUE PROCESS CLAUSE GIVES THIS COURT AUTHORITY
TO DENY TO THE STATE OF WEST VIRGINIA THE ATTAINMENT OF THAT WHICH WE
ALL RECOGNIZE AS A LEGITIMATE LEGISLATIVE END, NAMELY, THE PROMOTION OF
GOOD CITIZENSHIP, BY EMPLOYMENT OF THE MEANS HERE CHOSEN. 

NOT SO LONG AGO WE WERE ADMONISHED THAT "THE ONLY CHECK UPON OUR OWN
EXERCISE OF POWER IS OUR OWN SENSE OF SELF-RESTRAINT.  FOR THE REMOVAL
OF UNWISE LAWS FROM THE STATUTE BOOKS APPEAL LIES NOT TO THE COURTS BUT
TO THE BALLOT AND TO THE PROCESSES OF DEMOCRATIC GOVERNMENT."  UNITED
STATES V. BUTLER, 297 U.S. 1, 79(DISSENT).  WE HAVE BEEN TOLD THAT
GENERALITIES DO NOT DECIDE CONCRETE CASES.  BUT THE INTENSITY WITH
WHICH A GENERAL PRINCIPLE IS HELD MAY DETERMINE A PARTICULAR ISSUE, AND
WHETHER WE PUT FIRST THINGS FIRST MAY DECIDE A SPECIFIC CONTROVERSY. 

THE ADMONITION THAT JUDICIAL SELF-RESTRAINT ALONE LIMITS ARBITRARY
EXERCISE OF OUR AUTHORITY IS RELEVANT EVERY TIME WE ARE ASKED TO
NULLIFY LEGISLATION.  THE CONSTITUTION DOES NOT GIVE US GREATER VETO
POWER WHEN DEALING WITH ONE PHASE OF "LIBERTY" THAN WITH ANOTHER, OR
WHEN DEALING WITH GRADE SCHOOL REGULATIONS THAN WITH COLLEGE
REGULATIONS THAT OFFEND CONSCIENCE, AS WAS THE CASE IN HAMILTON V.
REGENTS, 293 U.S. 245.  IN NEITHER SITUATION IS OUR FUNCTION COMPARABLE
TO THAT OF A LEGISLATURE OR ARE WE FREE TO ACT AS THOUGH WE WERE A
SUPER-LEGISLATURE.  JUDICIAL SELF-RESTRAINT IS EQUALLY NECESSARY
WHENEVER AN EXERCISE OF POLITICAL OR LEGISLATIVE POWER IS CHALLENGED. 
THERE IS NO WARRANT IN THE CONSTITUTIONAL BASIS OF THIS COURT'S
AUTHORITY FOR ATTRIBUTING DIFFERENT ROLES TO IT DEPENDING UPON THE
NATURE OF THE CHALLENGE TO THE LEGISLATION.  OUR POWER DOES NOT VARY
ACCORDING TO THE PARTICULAR PROVISION OF THE BILL OF RIGHTS WHICH IS
INVOKED.  THE RIGHT NOT TO HAVE PROPERTY TAKEN WITHOUT JUST
COMPENSATION HAS, SO FAR AS THE SCOPE OF JUDICIAL POWER IS CONCERNED,
THE SAME CONSTITUTIONAL DIGNITY AS THE RIGHT TO BE PROTECTED AGAINST
UNREASONABLE SEARCHES AND SEIZURES, AND THE LATTER HAS NO LESS CLAIM
THAN FREEDOM OF THE PRESS OR FREEDOM OF SPEECH OR RELIGIOUS FREEDOM. 
IN NO INSTANCE IS THIS COURT THE PRIMARY PROTECTOR OF THE PARTICULAR
LIBERTY THAT IS INVOKED.  THIS COURT HAS RECOGNIZED, WHAT HARDLY COULD
BE DENIED, THAT ALL THE PROVISIONS OF THE FIRST TEN AMENDMENTS ARE
"SPECIFIC" PROHIBITIONS, UNITED STATES V. CAROLENE PRODUCTS CO., 304
U.S. 144, 152, N. 4.  BUT EACH SPECIFIC AMENDMENT, IN SO FAR AS
EMBRACED WITHIN THE FOURTEENTH AMENDMENT, MUST BE EQUALLY RESPECTED,
AND THE FUNCTION OF THIS COURT DOES NOT DIFFER IN PASSING ON THE
CONSTITUTIONALITY OF LEGISLATION CHALLENGED UNDER DIFFERENT
AMENDMENTS. 

WHEN MR. JUSTICE HOLMES, SPEAKING FOR THIS COURT, WROTE THAT "IT MUST
BE REMEMBERED THAT LEGISLATURES ARE ULTIMATE GUARDIANS OF THE LIBERTIES
AND WELFARE OF THE PEOPLE IN QUITE AS GREAT A DEGREE AS THE COURTS,"
MISSOURI, K. & T. RY. CO. V. MAY, 194 U.S. 267, 270, HE WENT TO THE
VERY ESSENCE OF OUR CONSTITUTIONAL SYSTEM AND THE DEMOCRATIC CONCEPTION
OF OUR SOCIETY.  HE DID NOT MEAN THAT FOR ONLY SOME PHASES OF CIVIL
GOVERNMENT THIS COURT WAS NOT TO SUPPLANT LEGISLATURES AND SIT IN
JUDGMENT UPON THE RIGHT OR WRONG OF A CHALLENGED MEASURE.  HE WAS
STATING THE COMPREHENSIVE JUDICIAL DUTY AND ROLE OF THIS COURT IN OUR
CONSTITUTIONAL SCHEME WHENEVER LEGISLATION IS SOUGHT TO BE NULLIFIED ON
ANY GROUND, NAMELY, THAT RESPONSIBILITY FOR LEGISLATION LIES WITH
LEGISLATURES, ANSWERABLE AS THEY ARE DIRECTLY TO THE PEOPLE, AND THIS
COURT'S ONLY AND VERY NARROW FUNCTION IS TO DETERMINE WHETHER WITHIN
THE BROAD GRANT OF AUTHORITY VESTED IN LEGISLATURES THEY HAVE EXERCISED
A JUDGMENT FOR WHICH REASONABLE JUSTIFICATION CAN BE OFFERED. 

THE FRAMERS OF THE FEDERAL CONSTITUTION MIGHT HAVE CHOSEN TO ASSIGN
AN ACTIVE SHARE IN THE PROCESS OF LEGISLATION TO THIS COURT.  THEY HAD
BEFORE THEM THE WELL-KNOWN EXAMPLE OF NEW YORK'S COUNCIL OF REVISION,
WHICH HAD BEEN FUNCTIONING SINCE 1777.  AFTER STATING THAT "LAWS
INCONSISTENT WITH THE SPIRIT OF THIS CONSTITUTION, OR WITH THE PUBLIC
GOOD, MAY BE HASTILY AND UNADVISEDLY PASSED," THE STATE CONSTITUTION
MADE THE JUDGES OF NEW YORK PART OF THE LEGISLATIVE PROCESS BY
PROVIDING THAT "ALL BILLS WHICH HAVE PASSED THE SENATE AND ASSEMBLY
SHALL, BEFORE THEY BECOME LAWS," BE PRESENTED TO A COUNCIL OF WHICH THE
JUDGES CONSTITUTED A MAJORITY, "FOR THEIR REVISAL AND CONSIDERATION." 
ART. III, NEW YORK CONSTITUTION OF 1777.  JUDGES EXERCISED THIS
LEGISLATIVE FUNCTION IN NEW YORK FOR NEARLY FIFTY YEARS.  SEE ART. I,
SEC. 12, NEW YORK CONSTITUTION OF 1821.  BUT THE FRAMERS OF THE
CONSTITUTION DENIED SUCH LEGISLATIVE POWERS TO THE FEDERAL JUDICIARY. 
THEY CHOSE INSTEAD TO INSULATE THE JUDICIARY FROM THE LEGISLATIVE
FUNCTION.  THEY DID NOT GRANT TO THIS COURT SUPERVISION OVER
LEGISLATION. 

THE REASON WHY FROM THE BEGINNING EVEN THE NARROW JUDICIAL AUTHORITY
TO NULLIFY LEGISLATION HAS BEEN VIEWED WITH A JEALOUS EYE IS THAT IT
SERVES TO PREVENT THE FULL PLAY OF THE DEMOCRATIC PROCESS.  THE FACT
THAT IT MAY BE AN UNDEMOCRATIC ASPECT OF OUR SCHEME OF GOVERNMENT DOES
NOT CALL FOR ITS REJECTION OR ITS DISUSE.  BUT IT IS THE BEST OF
REASONS, AS THIS COURT HAS FREQUENTLY RECOGNIZED, FOR THE GREATEST
CAUTION IN ITS USE. 

THE PRECISE SCOPE OF THE QUESTION BEFORE US DEFINES THE LIMITS OF THE
CONSTITUTIONAL POWER THAT IS IN ISSUE.  THE STATE OF WEST VIRGINIA
REQUIRES ALL PUPILS TO SHARE IN THE SALUTE TO THE FLAG AS PART OF
SCHOOL TRAINING IN CITIZENSHIP.  THE PRESENT ACTION IS ONE TO ENJOIN
THE ENFORCEMENT OF THIS REQUIREMENT BY THOSE IN SCHOOL ATTENDANCE.  WE
HAVE NOT BEFORE US ANY ATTEMPT BY THE STATE TO PUNISH DISOBEDIENT
CHILDREN OR VISIT PENAL CONSEQUENCES ON THEIR PARENTS.  ALL THAT IS IN
QUESTION IS THE RIGHT OF THE STATE TO COMPEL PARTICIPATION IN THIS
EXERCISE BY THOSE WHO CHOOSE TO ATTEND THE PUBLIC SCHOOLS. 

WE ARE NOT REVIEWING MERELY THE ACTION OF A LOCAL SCHOOL BOARD.  THE
FLAG SALUTE REQUIREMENT IN THIS CASE COMES BEFORE US WITH THE FULL
AUTHORITY OF THE STATE OF WEST VIRGINIA.  WE ARE IN FACT PASSING
JUDGMENT ON "THE POWER OF THE STATE AS A WHOLE."  RIPPEY V. TEXAS, 193
U.S. 504, 509; SKIRIOTES V. FLORIDA, 313 U.S. 69, 79.  PRACTICALLY WE
ARE PASSING UPON THE POLITICAL POWER OF EACH OF THE FORTY-EIGHT
STATES.  MOREOVER, SINCE THE FIRST AMENDMENT HAS BEEN READ INTO THE
FOURTEENTH, OUR PROBLEM IS PRECISELY THE SAME AS IT WOULD BE IF WE HAD
BEFORE US AN ACT OF CONGRESS FOR THE DISTRICT OF COLUMBIA.  TO SUGGEST
THAT WE ARE HERE CONCERNED WITH THE HEEDLESS ACTION OF SOME VILLAGE
TYRANTS IS TO DISTORT THE AUGUSTNESS OF THE CONSTITUTIONAL ISSUE AND
THE REACH OF THE CONSEQUENCES OF OUR DECISION. 

UNDER OUR CONSTITUTIONAL SYSTEM THE LEGISLATURE IS CHARGED SOLELY
WITH CIVIL CONCERNS OF SOCIETY.  IF THE AVOWED OR INTRINSIC LEGISLATIVE
PURPOSE IS EITHER TO PROMOTE OR TO DISCOURAGE SOME RELIGIOUS COMMUNITY
OR CREED, IT IS CLEARLY WITHIN THE CONSTITUTIONAL RESTRICTIONS IMPOSED
ON LEGISLATURES AND CANNOT STAND.  BUT IT BY NO MEANS FOLLOWS THAT
LEGISLATIVE POWER IS WANTING WHENEVER A GENERAL NON-DISCRIMINATORY
CIVIL REGULATION IN FACT TOUCHES CONSCIENTIOUS SCRUPLES OR RELIGIOUS
BELIEFS OF AN INDIVIDUAL OR A GROUP.  REGARD FOR SUCH SCRUPLES OR
BELIEFS UNDOUBTEDLY PRESENTS ONE OF THE MOST REASONABLE CLAIMS FOR THE
EXERTION OF LEGISLATIVE ACCOMMODATION.  IT IS, OF COURSE, BEYOND OUR
POWER TO REWRITE THE STATE'S REQUIREMENT, BY PROVIDING EXEMPTIONS FOR
THOSE WHO DO NOT WISH TO PARTICIPATE IN THE FLAG SALUTE OR BY MAKING
SOME OTHER ACCOMMODATIONS TO MEET THEIR SCRUPLES.  THAT WISDOM MIGHT
SUGGEST THE MAKING OF SUCH ACCOMMODATIONS AND THAT SCHOOL
ADMINISTRATION WOULD NOT FIND IT TOO DIFFICULT TO MAKE THEM AND YET
MAINTAIN THE CEREMONY FOR THOSE NOT REFUSING TO CONFORM, IS OUTSIDE OUR
PROVINCE TO SUGGEST.  TACT, RESPECT, AND GENEROSITY TOWARD VARIANT
VIEWS WILL ALWAYS COMMEND THEMSELVES TO THOSE CHARGED WITH THE DUTIES
OF LEGISLATION SO AS TO ACHIEVE A MAXIMUM OF GOOD WILL AND TO REQUIRE A
MINIMUM OF UNWILLING SUBMISSION TO A GENERAL LAW.  BUT THE REAL
QUESTION IS, WHO IS TO MAKE SUCH ACCOMMODATIONS, THE COURTS OR THE
LEGISLATURE?    THIS IS NO DRY, TECHNICAL MATTER.  IT CUTS DEEP INTO
ONE'S CONCEPTION OF THE DEMOCRATIC PROCESS - IT CONCERNS NO LESS THE
PRACTICAL DIFFERENCES BETWEEN THE MEANS FOR MAKING THESE ACCOMMODATIONS
THAT ARE OPEN TO COURTS AND TO LEGISLATURES.  A COURT CAN ONLY STRIKE
DOWN.  IT CAN ONLY SAY "THIS OR THAT LAW IS VOID."  IT CANNOT MODIFY OR
QUALIFY, IT CANNOT MAKE EXCEPTIONS TO A GENERAL REQUIREMENT.  AND IT
STRIKES DOWN NOT MERELY FOR A DAY.  AT LEAST THE FINDING OF
UNCONSTITUTIONALITY OUGHT NOT TO HAVE EPHEMERAL SIGNIFICANCE UNLESS THE
CONSTITUTION IS TO BE REDUCED TO THE FUGITIVE IMPORTANCE OF MERE
LEGISLATION.  WHEN WE ARE DEALING WITH THE CONSTITUTION OF THE UNITED
STATES, AND MORE PARTICULARLY WITH THE GREAT SAFEGUARDS OF THE BILL OF
RIGHTS, WE ARE DEALING WITH PRINCIPLES OF LIBERTY AND JUSTICE "SO
ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO BE RANKED
AS FUNDAMENTAL" - SOMETHING WITHOUT WHICH "A FAIR AND ENLIGHTENED
SYSTEM OF JUSTICE WOULD BE IMPOSSIBLE."  PALKO V. CONNECTICUT, 302 U.S.
319, 325; HURTADO V. CALIFORNIA, 110 U.S. 516, 530, 531.  IF THE
FUNCTION OF THIS COURT IS TO BE ESSENTIALLY NO DIFFERENT FROM THAT OF A
LEGISLATURE, IF THE CONSIDERATIONS GOVERNING CONSTITUTIONAL
CONSTRUCTION ARE TO BE SUBSTANTIALLY THOSE THAT UNDERLIE LEGISLATION,
THEN INDEED JUDGES SHOULD NOT HAVE LIFE TENURE AND THEY SHOULD BE MADE
DIRECTLY RESPONSIBLE TO THE ELECTORATE.  THERE HAVE BEEN MANY BUT
UNSUCCESSFUL PROPOSALS IN THE LAST SIXTY YEARS TO AMEND THE
CONSTITUTION TO THAT END.  SEE SEN. DOC. NO. 91, 75TH CONG., 1ST SESS.,
PP. 248-51. 

CONSCIENTIOUS SCRUPLES, ALL WOULD ADMIT, CANNOT STAND AGAINST EVERY
LEGISLATIVE COMPULSION TO DO POSITIVE ACTS IN CONFLICT WITH SUCH
SCRUPLES.  WE HAVE BEEN TOLD THAT SUCH COMPULSIONS OVERRIDE RELIGIOUS
SCRUPLES ONLY AS TO MAJOR CONCERNS OF THE STATE.  BUT THE DETERMINATION
OF WHAT IS MAJOR AND WHAT IS MINOR ITSELF RAISES QUESTIONS OF POLICY. 
FOR THE WAY IN WHICH MEN EQUALLY GUIDED BY REASON APPRAISE IMPORTANCE
GOES TO THE VERY HEART OF POLICY.  JUDGES SHOULD BE VERY DIFFIDENT IN
SETTING THEIR JUDGMENT AGAINST THAT OF A STATE IN DETERMINING WHAT IS
AND WHAT IS NOT A MAJOR CONCERN, WHAT MEANS ARE APPROPRIATE TO PROPER
ENDS, AND WHAT IS THE TOTAL SOCIAL COST IN STRIKING THE BALANCE OF
IMPONDERABLES. 

WHAT ONE CAN SAY WITH ASSURANCE IS THAT THE HISTORY OUT OF WHICH GREW
CONSTITUTIONAL PROVISIONS FOR RELIGIOUS EQUALITY AND THE WRITINGS OF
THE GREAT EXPONENTS OF RELIGIOUS FREEDOM - JEFFERSON, MADISON, JOHN
ADAMS, BENJAMIN FRANKLIN - ARE TOTALLY WANTING IN JUSTIFICATION FOR A
CLAIM BY DISSIDENTS OF EXCEPTIONAL IMMUNITY FROM CIVIC MEASURES OF
GENERAL APPLICABILITY, MEASURES NOT IN FACT DISGUISED ASSAULTS UPON
SUCH DISSIDENT VIEWS.  THE GREAT LEADERS OF THE AMERICAN REVOLUTION
WERE DETERMINED TO REMOVE POLITICAL SUPPORT FROM EVERY RELIGIOUS
ESTABLISHMENT.  THEY PUT ON AN EQUALITY THE DIFFERENT RELIGIOUS SECTS -
EPISCOPALIANS, PRESBYTERIANS, CATHOLICS, BAPTISTS, METHODISTS, QUAKERS,
HUGUENOTS - WHICH, AS DISSENTERS, HAD BEEN UNDER THE HEEL OF THE
VARIOUS ORTHODOXIES THAT PREVAILED IN DIFFERENT COLONIES.  SO FAR AS
THE STATE WAS CONCERNED, THERE WAS TO BE NEITHER ORTHODOXY NOR
HETERODOXY.  AND SO JEFFERSON AND THOSE WHO FOLLOWED HIM WROTE
GUARANTIES OF RELIGIOUS FREEDOM INTO OUR CONSTITUTIONS.  RELIGIOUS
MINORITIES AS WELL AS RELIGIOUS MAJORITIES WERE TO BE EQUAL IN THE EYES
OF THE POLITICAL STATE.  BUT JEFFERSON AND THE OTHERS ALSO KNEW THAT
MINORITIES MAY DISRUPT SOCIETY.  IT NEVER WOULD HAVE OCCURRED TO THEM
TO WRITE INTO THE CONSTITUTION THE SUBORDINATION OF THE GENERAL CIVIL
AUTHORITY OF THE STATE TO SECTARIAN SCRUPLES. 

THE CONSTITUTIONAL PROTECTION OF RELIGIOUS FREEDOM TERMINATED
DISABILITIES, IT DID NOT CREATE NEW PRIVILEGES.  IT GAVE RELIGIOUS
EQUALITY, NOT CIVIL IMMUNITY.  ITS ESSENCE IS FREEDOM FROM CONFORMITY
TO RELIGIOUS DOGMA, NOT FREEDOM FROM CONFORMITY TO LAW BECAUSE OF
RELIGIOUS DOGMA.  RELIGIOUS LOYALTIES MAY BE EXERCISED WITHOUT
HINDRANCE FROM THE STATE, NOT THE STATE MAY NOT EXERCISE THAT WHICH
EXCEPT BY LEAVE OF RELIGIOUS LOYALTIES IS WITHIN THE DOMAIN OF TEMPORAL
POWER.  OTHERWISE EACH INDIVIDUAL COULD SET UP HIS OWN CENSOR AGAINST
OBEDIENCE TO LAWS CONSCIENTIOUSLY DEEMED FOR THE PUBLIC GOOD BY THOSE
WHOSE BUSINESS IT IS TO MAKE LAWS. 

THE PROHIBITION AGAINST ANY RELIGIOUS ESTABLISHMENT BY THE GOVERNMENT
PLACED DENOMINATIONS ON AN EQUAL FOOTING - IT ASSURED FREEDOM FROM
SUPPORT BY THE GOVERNMENT TO ANY MODE OF WORSHIP AND THE FREEDOM OF
INDIVIDUALS TO SUPPORT ANY MODE OF WORSHIP.  ANY PERSON MAY THEREFORE
BELIEVE OR DISBELIEVE WHAT HE PLEASES.  HE MAY PRACTICE WHAT HE WILL IN
HIS OWN HOUSE OF WORSHIP OR PUBLICLY WITHIN THE LIMITS OF PUBLIC
ORDER.  BUT THE LAWMAKING AUTHORITY IS NOT CIRCUMSCRIBED BY THE VARIETY
OF RELIGIOUS BELIEFS, OTHERWISE THE CONSTITUTIONAL GUARANTY WOULD BE
NOT A PROTECTION OF THE FREE EXERCISE OF RELIGION BUT A DENIAL OF THE
EXERCISE OF LEGISLATION. 

THE ESSENCE OF THE RELIGIOUS FREEDOM GUARANTEED BY OUR CONSTITUTION
IS THEREFORE THIS:  NO RELIGION SHALL EITHER RECEIVE THE STATE'S
SUPPORT OR INCUR ITS HOSTILITY.  RELIGION IS OUTSIDE THE SPHERE OF
POLITICAL GOVERNMENT.  THIS DOES NOT MEAN THAT ALL MATTERS ON WHICH
RELIGIOUS ORGANIZATIONS OR BELIEFS MAY PRONOUNCE ARE OUTSIDE THE SPHERE
OF GOVERNMENT.  WERE THIS SO, INSTEAD OF THE SEPARATION OF CHURCH AND
STATE, THERE WOULD BE THE SUBORDINATION OF THE STATE ON ANY MATTER
DEEMED WITHIN THE SOVEREIGNTY OF THE RELIGIOUS CONSCIENCE.  MUCH THAT
IS THE CONCERN OF TEMPORAL AUTHORITY AFFECTS THE SPIRITUAL INTERESTS OF
MEN.  BUT IT IS NOT ENOUGH TO STRIKE DOWN A NON-DISCRIMINATORY LAW THAT
IT MAY HURT OR OFFEND SOME DISSIDENT VIEW.  IT WOULD BE TOO EASY TO
CITE NUMEROUS PROHIBITIONS AND INJUNCTIONS TO WHICH LAWS RUN COUNTER IF
THE VARIANT INTERPRETATIONS OF THE BIBLE WERE MADE THE TESTS OF
OBEDIENCE TO LAW.  THE VALIDITY OF SECULAR LAWS CANNOT BE MEASURED BY
THEIR CONFORMITY TO RELIGIOUS DOCTRINES.  IT IS ONLY IN A THEOCRATIC
STATE THAT ECCLESIASTICAL DOCTRINES MEASURE LEGAL RIGHT OR WRONG. 

AN ACT COMPELLING PROFESSION OF ALLEGIANCE TO A RELIGION, NO MATTER
HOW SUBTLY OR TENUOUSLY PROMOTED, IS BAD.  BUT AN ACT PROMOTING GOOD
CITIZENSHIP AND NATIONAL ALLEGIANCE IS WITHIN THE DOMAIN OF
GOVERNMENTAL AUTHORITY AND IS THEREFORE TO BE JUDGED BY THE SAME
CONSIDERATIONS OF POWER AND OF CONSTITUTIONALITY AS THOSE INVOLVED IN
THE MANY CLAIMS OF IMMUNITY FROM CIVIL OBEDIENCE BECAUSE OF RELIGIOUS
SCRUPLES. 

THAT CLAIMS ARE PRESSED ON BEHALF OF SINCERE RELIGIOUS CONVICTIONS
DOES NOT OF ITSELF ESTABLISH THEIR CONSTITUTIONAL VALIDITY.  NOR DOES
WAVING THE BANNER OF RELIGIOUS FREEDOM RELIEVE US FROM EXAMINING INTO
THE POWER WE ARE ASKED TO DENY THE STATES.  OTHERWISE THE DOCTRINE OF
SEPARATION OF CHURCH AND STATE, SO CARDINAL IN THE HISTORY OF THIS
NATION AND FOR THE LIBERTY OF OUR PEOPLE, WOULD MEAN NOT THE
DISESTABLISHMENT OF A STATE CHURCH BUT THE ESTABLISHMENT OF ALL
CHURCHES AND OF ALL RELIGIOUS GROUPS. 

THE SUBJECTION OF DISSIDENTS TO THE GENERAL REQUIREMENT OF SALUTING
THE FLAG, AS A MEASURE CONDUCIVE TO THE TRAINING OF CHILDREN IN GOOD
CITIZENSHIP, IS VERY FAR FROM BEING THE FIRST INSTANCE OF EXACTING
OBEDIENCE TO GENERAL LAWS THAT HAVE OFFENDED DEEP RELIGIOUS SCRUPLES. 
COMPULSORY VACCINATION, SEE JACOBSON V. MASSACHUSETTS, 197 U.S. 11,
FOOD INSPECTION REGULATIONS, SEE SHAPIRO V. LYLE, 30 F.2D 971, THE
OBLIGATION TO BEAR ARMS, SEE HAMILTON V. REGENTS, 293 U.S. 245, 267,
TESTIMONIAL DUTIES, SEE STANSBURY V. MARKS, 2 DALL.  213, COMPULSORY
MEDICAL TREATMENT, SEE PEOPLE V. VOGELGESANG, 221 N.Y. 290, 116 N.E.
977 - THESE ARE BUT ILLUSTRATIONS OF CONDUCT THAT HAS OFTEN BEEN
COMPELLED IN THE ENFORCEMENT OF LEGISLATION OF GENERAL APPLICABILITY
EVEN THOUGH THE RELIGIOUS CONSCIENCES OF PARTICULAR INDIVIDUALS
REBELLED AT THE EXACTION. 

LAW IS CONCERNED WITH EXTERNAL BEHAVIOR AND NOT WITH THE INNER LIFE
OF MAN.  IT RESTS IN LARGE MEASURE UPON COMPULSION.  SOCRATES LIVES IN
HISTORY PARTLY BECAUSE HE GAVE HIS LIFE FOR THE CONVICTION THAT DUTY OF
OBEDIENCE TO SECULAR LAW DOES NOT PRESUPPOSE CONSENT TO ITS ENACTMENT
OR BELIEF IN ITS VIRTUE.  THE CONSENT UPON WHICH FREE GOVERNMENT RESTS
IS THE CONSENT THAT COMES FROM SHARING IN THE PROCESS OF MAKING AND
UNMAKING LAWS.  THE STATE IS NOT SHUT OUT FROM A DOMAIN BECAUSE THE
INDIVIDUAL CONSCIENCE MAY DENY THE STATE'S CLAIM.  THE INDIVIDUAL
CONSCIENCE MAY PROFESS WHAT FAITH IT CHOOSES.  IT MAY AFFIRM AND
PROMOTE THAT FAITH - IN THE LANGUAGE OF THE CONSTITUTION, IT MAY
"EXERCISE" IT FREELY - BUT IT CANNOT THEREBY RESTRICT COMMUNITY ACTION
THROUGH POLITICAL ORGANS IN MATTERS OF COMMUNITY CONCERN, SO LONG AS
THE ACTION IS NOT ASSERTED IN A DISCRIMINATORY WAY EITHER OPENLY OR BY
STEALTH.  ONE MAY HAVE THE RIGHT TO PRACTICE ONE'S RELIGION AND AT THE
SAME TIME OWE THE DUTY OF FORMAL OBEDIENCE TO LAWS THAT RUN COUNTER TO
ONE'S BELIEFS.  COMPELLING BELIEF IMPLIES DENIAL OF OPPORTUNITY TO
COMBAT IT AND TO ASSERT DISSIDENT VIEWS.  SUCH COMPULSION IS ONE
THING.  QUITE ANOTHER MATTER IS SUBMISSION TO CONFORMITY OF ACTION
WHILE DENYING ITS WISDOM OR VIRTUE AND WITH AMPLE OPPORTUNITY FOR
SEEKING ITS CHANGE OR ABROGATION. 

IN HAMILTON V. REGENTS, 293 U.S. 245, THIS COURT UNANIMOUSLY HELD
THAT ONE ATTENDING A STATE-MAINTAINED UNIVERSITY CANNOT REFUSE
ATTENDANCE ON COURSES THAT OFFEND HIS RELIGIOUS SCRUPLES.  THAT
DECISION IS NOT OVERRULED TODAY, BUT IS DISTINGUISHED ON THE GROUND
THAT ATTENDANCE AT THE INSTITUTION FOR HIGHER EDUCATION WAS VOLUNTARY
AND THEREFORE A STUDENT COULD NOT REFUSE COMPLIANCE WITH ITS CONDITIONS
AND YET TAKE ADVANTAGE OF ITS OPPORTUNITIES.  BUT WEST VIRGINIA DOES
NOT COMPEL THE ATTENDANCE AT ITS PUBLIC SCHOOLS OF THE CHILDREN HERE
CONCERNED.  WEST VIRGINIA DOES NOT SO COMPEL, FOR IT CANNOT.  THIS
COURT DENIED THE RIGHT OF A STATE TO REQUIRE ITS CHILDREN TO ATTEND
PUBLIC SCHOOLS.  PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510.  AS TO ITS
PUBLIC SCHOOLS, WEST VIRGINIA IMPOSES CONDITIONS WHICH IT DEEMS
NECESSARY IN THE DEVELOPMENT OF FUTURE CITIZENS PRECISELY AS CALIFORNIA
DEEMED NECESSARY THE REQUIREMENTS THAT OFFENDED THE STUDENT'S
CONSCIENCE IN THE HAMILTON CASE.  THE NEED FOR HIGHER EDUCATION AND THE
DUTY OF THE STATE TO PROVIDE IT AS PART OF A PUBLIC EDUCATIONAL SYSTEM,
ARE PART OF THE DEMOCRATIC FAITH OF MOST OF OUR STATES.  THE RIGHT TO
SECURE SUCH EDUCATION IN INSTITUTIONS NOT MAINTAINED BY PUBLIC FUNDS IS
UNQUESTIONED.  BUT THE PRACTICAL OPPORTUNITIES FOR OBTAINING WHAT IS
BECOMING IN INCREASING MEASURE THE CONVENTIONAL EQUIPMENT OF AMERICAN
YOUTH MAY BE NO LESS BURDENSOME THAN THAT WHICH PARENTS ARE
INCREASINGLY CALLED UPON TO BEAR IN SENDING THEIR CHILDREN TO PAROCHIAL
SCHOOLS BECAUSE THE EDUCATION PROVIDED BY PUBLIC SCHOOLS, THOUGH
SUPPORTED BY THEIR TAXES, DOES NOT SATISFY THEIR ETHICAL AND
EDUCATIONAL NECESSITIES.  I FIND IT IMPOSSIBLE, SO FAR AS
CONSTITUTIONAL POWER IS CONCERNED, TO DIFFERENTIATE WHAT WAS SANCTIONED
IN THE HAMILTON CASE FROM WHAT IS NULLIFIED IN THIS CASE.  AND FOR ME
IT STILL REMAINS TO BE EXPLAINED WHY THE GROUNDS OF MR. JUSTICE
CARDOZO'S OPINION IN HAMILTON V. REGENTS, SUPRA, ARE NOT SUFFICIENT TO
SUSTAIN THE FLAG SALUTE REQUIREMENT.  SUCH A REQUIREMENT, LIKE THE
REQUIREMENT IN THE HAMILTON CASE, "IS NOT AN INTERFERENCE BY THE STATE
WITH THE FREE EXERCISE OF RELIGION WHEN THE LIBERTIES OF THE
CONSTITUTION ARE READ IN THE LIGHT OF A CENTURY AND A HALF OF HISTORY
DURING DAYS OF PEACE AND WAR."  293 U.S. 245, 266.  THE RELIGIOUS
WORSHIPER, "IF HIS LIBERTIES WERE TO BE THUS EXTENDED, MIGHT REFUSE TO
CONTRIBUTE TAXES  ...  IN FURTHERANCE OF ANY OTHER END CONDEMNED BY HIS
CONSCIENCE AS IRRELIGIOUS OR IMMORAL.  THE RIGHT OF PRIVATE JUDGMENT
HAS NEVER YET BEEN SO EXALTED ABOVE THE POWERS AND THE COMPULSION OF
THE AGENCIES OF GOVERNMENT."  ID., AT 268. 

PARENTS HAVE THE PRIVILEGE OF CHOOSING WHICH SCHOOLS THEY WISH THEIR
CHILDREN TO ATTEND.  AND THE QUESTION HERE IS WHETHER THE STATE MAY
MAKE CERTAIN REQUIREMENTS THAT SEEM TO IT DESIRABLE OR IMPORTANT FOR
THE PROPER EDUCATION OF THOSE FUTURE CITIZENS WHO GO TO SCHOOLS
MAINTAINED BY THE STATES, OR WHETHER THE PUPILS IN THOSE SCHOOLS MAY BE
RELIEVED FROM THOSE REQUIREMENTS IF THEY RUN COUNTER TO THE CONSCIENCES
OF THEIR PARENTS.  NOT ONLY HAVE PARENTS THE RIGHT TO SEND CHILDREN TO
SCHOOLS OF THEIR OWN CHOOSING BUT THE STATE HAS NO RIGHT TO BRING SUCH
SCHOOLS "UNDER A STRICT GOVERNMENTAL CONTROL" OR GIVE "AFFIRMATIVE
DIRECTION CONCERNING THE INTIMATE AND ESSENTIAL DETAILS OF SUCH
SCHOOLS, ENTRUST THEIR CONTROL TO PUBLIC OFFICERS, AND DENY BOTH OWNERS
AND PATRONS REASONABLE CHOICE AND DISCRETION IN RESPECT OF TEACHERS,
CURRICULUM, AND TEXTBOOKS."  FARRINGTON V. TOKUSHIGE, 273 U.S. 284,
298.  WHY SHOULD NOT THE STATE LIKEWISE HAVE CONSTITUTIONAL POWER TO
MAKE REASONABLE PROVISIONS FOR THE PROPER INSTRUCTION OF CHILDREN IN
SCHOOLS MAINTAINED BY IT? 

WHEN DEALING WITH RELIGIOUS SCRUPLES WE ARE DEALING WITH AN ALMOST
NUMBERLESS VARIETY OF DOCTRINES AND BELIEFS ENTERTAINED WITH EQUAL
SINCERITY BY THE PARTICULAR GROUPS FOR WHICH THEY SATISFY MAN'S NEEDS
IN HIS RELATION TO THE MYSTERIES OF THE UNIVERSE.  THERE ARE IN THE
UNITED STATES MORE THAN 250 DISTINCTIVE ESTABLISHED RELIGIOUS
DENOMINATIONS.  IN THE STATE OF PENNSYLVANIA THERE ARE 120 OF THESE,
AND IN WEST VIRGINIA AS MANY AS 65.  BUT IF RELIGIOUS SCRUPLES AFFORD
IMMUNITY FROM CIVIC OBEDIENCE TO LAWS, THEY MAY BE INVOKED BY THE
RELIGIOUS BELIEFS OF ANY INDIVIDUAL EVEN THOUGH HE HOLDS NO MEMBERSHIP
IN ANY SECT OR ORGANIZED DENOMINATION.  CERTAINLY THIS COURT CANNOT BE
CALLED UPON TO DETERMINE WHAT CLAIMS OF CONSCIENCE SHOULD BE RECOGNIZED
AND WHAT SHOULD BE REJECTED AS SATISFYING THE "RELIGION" WHICH THE
CONSTITUTION PROTECTS.  THAT WOULD INDEED RESURRECT THE VERY
DISCRIMINATORY TREATMENT OF RELIGION WHICH THE CONSTITUTION SOUGHT
FOREVER TO FORBID.  AND SO, WHEN CONFRONTED WITH THE TASK OF
CONSIDERING THE CLAIMS OF IMMUNITY FROM OBEDIENCE TO A LAW DEALING WITH
CIVIL AFFAIRS BECAUSE OF RELIGIOUS SCRUPLES, WE CANNOT CONCEIVE
RELIGION MORE NARROWLY THAN IN THE TERMS IN WHICH JUDGE AUGUSTUS N.
HAND RECENTLY CHARACTERIZED IT:    "IT IS UNNECESSARY TO ATTEMPT A
DEFINITION OF RELIGION; THE CONTENT OF THE TERM IS FOUND IN THE HISTORY
OF THE HUMAN RACE AND IS INCAPABLE OF COMPRESSION INTO A FEW WORDS. 
RELIGIOUS BELIEF ARISES FROM A SENSE OF THE INADEQUACY OF REASON AS A
MEANS OF RELATING THE INDIVIDUAL TO HIS FELLOWMEN AND TO HIS UNIVERSE. 
...  (IT) MAY JUSTLY BE REGARDED AS A RESPONSE OF THE INDIVIDUAL TO AN
INWARD MENTOR, CALL IT CONSCIENCE OR GOD, THAT IS FOR MANY PERSONS AT
THE PRESENT TIME THE EQUIVALENT OF WHAT HAS ALWAYS BEEN THOUGHT A
RELIGIOUS IMPULSE."  UNITED STATES V. KAUTEN, 133 F.2D 703, 708. 

CONSIDER THE CONTROVERSIAL ISSUE OF COMPULSORY BIBLE-READING IN
PUBLIC SCHOOLS.  THE EDUCATIONAL POLICIES OF THE STATES ARE IN GREAT
CONFLICT OVER THIS, AND THE STATE COURTS ARE DIVIDED IN THEIR DECISIONS
ON THE ISSUE WHETHER THE REQUIREMENT OF BIBLE-READING OFFENDS
CONSTITUTIONAL PROVISIONS DEALING WITH RELIGIOUS FREEDOM.  THE
REQUIREMENT OF BIBLE-READING HAS BEEN JUSTIFIED BY VARIOUS STATE COURTS
AS AN APPROPRIATE MEANS OF INCLUCATING ETHICAL PRECEPTS AND
FAMILIARIZING PUPILS WITH THE MOST LASTING EXPRESSION OF GREAT ENGLISH
LITERATURE.  IS THIS COURT TO OVERTHROW SUCH VARIANT STATE EDUCATIONAL
POLICIES BY DENYING STATES THE RIGHT TO ENTERTAIN SUCH CONVICTIONS IN
REGARD TO THEIR SCHOOL SYSTEMS, BECAUSE OF A BELIEF THAT THE KING JAMES
VERSION IS IN FACT A SECTARIAN TEXT TO WHICH PARENTS OF THE CATHOLIC
AND JEWISH FAITHS AND OF SOME PROTESTANT PERSUASIONS MAY RIGHTLY OBJECT
TO HAVING THEIR CHILDREN EXPOSED?  ON THE OTHER HAND THE RELIGIOUS
CONSCIENCES OF SOME PARENTS MAY REBEL AT THE ABSENCE OF ANY BIBLE
READING IN THE SCHOOLS.  SEE WASHINGTON EX REL. CLITHERO V. SHOWALTER,
284 U.S. 573.  OR IS THIS COURT TO ENTER THE OLD CONTROVERSY BETWEEN
SCIENCE AND RELIGION BY UNDULY DEFINING THE LIMITS WITHIN WHICH A STATE
MAY EXPERIMENT WITH ITS SCHOOL CURRICULA?  THE RELIGIOUS CONSCIENCES OF
SOME PARENTS MAY BE OFFENDED BY SUBJECTING THEIR CHILDREN TO THE
BIBLICAL ACCOUNT OF CREATION, WHILE ANOTHER STATE MAY OFFEND PARENTS BY
PROHIBITING A TEACHING OF BIOLOGY THAT CONTRADICTS SUCH BIBLICAL
ACCOUNT.  COMPARE SCOPES V. STATE, 154 TENN. 105, 289 S.W. 363.  WHAT
OF CONSCIENTIOUS OBJECTIONS TO WHAT IS DEVOUTLY FELT BY PARENTS TO BE
THE POISONING OF IMPRESSIONABLE MINDS OF CHILDREN BY CHAUVINISTIC
TEACHING OF HISTORY?  THIS IS VERY FAR FROM A FANCIFUL SUGGESTION FOR
IN THE BELIEF OF MANY THOUGHTFUL PEOPLE NATIONALISM IS THE SEED-BED OF
WAR. 

THERE ARE OTHER ISSUES IN THE OFFING WHICH ADMONISH US OF THE
DIFFICULTIES AND COMPLEXITIES THAT CONFRONT STATES IN THE DUTY OF
ADMINISTERING THEIR LOCAL SCHOOL SYSTEMS.  ALL CITIZENS ARE TAXED FOR
THE SUPPORT OF PUBLIC SCHOOLS ALTHOUGH THIS COURT HAS DENIED THE RIGHT
OF A STATE TO COMPEL ALL CHILDREN TO GO TO SUCH SCHOOLS AND HAS
RECOGNIZED THE RIGHT OF PARENTS TO SEND CHILDREN TO PRIVATELY
MAINTAINED SCHOOLS.  PARENTS WHO ARE DISSATISFIED WITH THE PUBLIC
SCHOOLS THUS CARRY A DOUBLE EDUCATIONAL BURDEN.  CHILDREN WHO GO TO
PUBLIC SCHOOL ENJOY IN MANY STATES DERIVATIVE ADVANTAGES SUCH AS FREE
TEXTBOOKS, FREE LUNCH, AND FREE TRANSPORTATION IN GOING TO AND FROM
SCHOOL.  WHAT OF THE CLAIMS FOR EQUALITY OF TREATMENT OF THOSE PARENTS
WHO, BECAUSE OF RELIGIOUS SCRUPLES, CANNOT SEND THEIR CHILDREN TO
PUBLIC SCHOOLS?  WHAT OF THE CLAIM THAT IF THE RIGHT TO SEND CHILDREN
TO PRIVATELY MAINTAINED SCHOOLS IS PARTLY AN EXERCISE OF RELIGIOUS
CONVICTION, TO RENDER EFFECTIVE THIS RIGHT IT SHOULD BE ACCOMPANIED BY
EQUALITY OF TREATMENT BY THE STATE IN SUPPLYING FREE TEXTBOOKS, FREE
LUNCH, AND FREE TRANSPORTATION TO CHILDREN WHO GO TO PRIVATE SCHOOLS? 
WHAT OF THE CLAIM THAT SUCH GRANTS ARE OFFENSIVE TO THE CARDINAL
CONSTITUTIONAL DOCTRINE OF SEPARATION OF CHURCH AND STATE? 

THESE QUESTIONS ASSUME INCREASING IMPORTANCE IN VIEW OF THE STEADY
GROWTH OF PAROCHICAL SCHOOLS BOTH IN NUMBER AND IN POPULATION.  I AM
NOT BORROWING TROUBLE BY ADUMBRATING THESE ISSUES NOR AM I PARADING
HORRIBLE EXAMPLES OF THE CONSEQUENCES OF TODAY'S DECISION.  I AM AWARE
THAT WE MUST DECIDE THE CASE BEFORE US AND NOT SOME OTHER CASE.  BUT
THAT DOES NOT MEAN THAT A CASE IS DISSOCIATED FROM THE PAST AND
UNRELATED TO THE FUTURE.  WE MUST DECIDE THIS CASE WITH DUE REGARD FOR
WHAT WENT BEFORE AND NO LESS REGARD FOR WHAT MAY COME AFTER.  IS IT
REALLY A FAIR CONSTRUCTION OF SUCH A FUNDAMENTAL CONCEPT AS THE RIGHT
FREELY TO EXERCISE ONE'S RELIGION THAT A STATE CANNOT CHOOSE TO REQUIRE
ALL CHILDREN WHO ATTEND PUBLIC SCHOOL TO MAKE THE SAME GESTURE OF
ALLEGIANCE TO THE SYMBOL OF OUR NATIONAL LIFE BECAUSE IT MAY OFFEND THE
CONSCIENCE OF SOME CHILDREN, BUT THAT IT MAY COMPEL ALL CHILDREN TO
ATTEND PUBLIC SCHOOL TO LISTEN TO THE KING JAMES VERSION ALTHOUGH IT
MAY OFFEND THE CONSCIENCES OF THEIR PARENTS?  AND WHAT OF THE LARGER
ISSUE OF CLAIMING IMMUNITY FROM OBEDIENCE TO A GENERAL CIVIL REGULATION
THAT HAS A REASONABLE RELATION TO A PUBLIC PURPOSE WITHIN THE GENERAL
COMPETENCE OF THE STATE?  SEE PIERCE V. SOCIETY OF SISTERS, 268 U.S.
510, 535.  ANOTHER MEMBER OF THE SECT NOW BEFORE US INSISTED THAT IN
FORBIDDING HER TWO LITTLE GIRLS, AGED NINE AND TWELVE, TO DISTRIBUTE
PAMPHLETS OREGON INFRINGED HER AND THEIR FREEDOM OF RELIGION IN THAT
THE CHILDREN WERE ENGAGED IN "PREACHING THE GOSPEL OF GOD'S KINGDOM." 
A PROCEDURAL TECHNICALITY LED TO THE DISMISSAL OF THE CASE, BUT THE
PROBLEM REMAINS.  MCSPARRAN V. PORTLAND, 318 U.S. 768. 

THESE QUESTIONS ARE NOT LIGHTLY STIRRED.  THEY TOUCH THE MOST
DELICATE ISSUES AND THEIR SOLUTION CHALLENGES THE BEST WISDOM OF
POLITICAL AND RELIGIOUS STATESMEN.  BUT IT PRESENTS AWFUL POSSIBILITIES
TO TRY TO ENCASE THE SOLUTION OF THESE PROBLEMS WITHIN THE RIGID
PROHIBITIONS OF UNCONSTITUTIONALITY. 

WE ARE TOLD THAT A FLAG SALUTE IS A DOUBTFUL SUBSTITUTE FOR ADEQUATE
UNDERSTANDING OF OUR INSTITUTIONS.  THE STATES THAT REQUIRE SUCH A
SCHOOL EXERCISE DO NOT HAVE TO JUSTIFY IT AS THE ONLY MEANS FOR
PROMOTING GOOD CITIZENSHIP IN CHILDREN, BUT MERELY AS ONE OF DIVERSE
MEANS FOR ACCOMPLISHING A WORTHY END.  WE MAY DEEM IT A FOOLISH
MEASURE, BUT THE POINT IS THAT THIS COURT IS NOT THE ORGAN OF
GOVERNMENT TO RESOLVE DOUBTS AS TO WHETHER IT WILL FULFILL ITS
PURPOSE.  ONLY IF THERE BE NO DOUBT THAT ANY REASONABLE MIND COULD
ENTERTAIN CAN WE DENY TO THE STATES THE RIGHT TO RESOLVE DOUBTS THEIR
WAY AND NOT OURS. 

THAT WHICH TO THE MAJORITY MAY SEEM ESSENTIAL FOR THE WELFARE OF THE
STATE MAY OFFEND THE CONSCIENCES OF A MINORITY.  BUT, SO LONG AS NO
INROADS ARE MADE UPON THE ACTUAL EXERCISE OF RELIGION BY THE MINORITY,
TO DENY THE POLITICAL POWER OF THE MAJORITY TO ENACT LAWS CONCERNED
WITH CIVIL MATTERS, SIMPLY BECAUSE THEY MAY OFFEND THE CONSCIENCES OF A
MINORITY, REALLY MEANS THAT THE CONSCIENCES OF A MINORITY ARE MORE
SACRED AND MORE ENSHRINED IN THE CONSTITUTION THAN THE CONSCIENCES OF A
MAJORITY. 

WE ARE TOLD THAT SYMBOLISM IS A DRAMATIC BUT PRIMITIVE WAY OF
COMMUNICATING IDEAS.  SYMBOLISM IS INESCAPABLE.  EVEN THE MOST
SOPHISTICATED LIVE BY SYMBOLS.  BUT IT IS NOT FOR THIS COURT TO MAKE
PSYCHOLOGICAL JUDGMENTS AS TO THE EFFECTIVENESS OF A PARTICULAR SYMBOL
IN INCULCATING CONCEDEDLY INDISPENSABLE FEELINGS, PARTICULARLY IF THE
STATE HAPPENS TO SEE FIT TO UTILIZE THE SYMBOL THAT REPRESENTS OUR
HERITAGE AND OUR HOPES.  AND SURELY ONLY FLIPPANCY COULD BE RESPONSIBLE
FOR THE SUGGESTION THAT CONSTITUTIONAL VALIDITY OF A REQUIREMENT TO
SALUTE OUR FLAG IMPLIES EQUAL VALIDITY OF A REQUIREMENT TO SALUTE A
DICTATOR.  THE SIGNIFICANCE OF A SYMBOL LIES IN WHAT IT REPRESENTS.  TO
REJECT THE SWASTIKA DOES NOT IMPLY REJECTION OF THE CROSS.  AND SO IT
BEARS REPETITION TO SAY THAT IT MOCKS REASON AND DENIES OUR WHOLE
HISTORY TO FIND IN THE ALLOWANCE OF A REQUIREMENT TO SALUTE OUR FLAG ON
FITTING OCCASIONS THE SEEDS OF SANCTION FOR OBEISANCE TO A LEADER.  TO
DENY THE POWER TO EMPLOY EDUCATIONAL SYMBOLS IS TO SAY THAT THE STATE'S
EDUCATIONAL SYSTEM MAY NOT STIMULATE THE IMAGINATION BECAUSE THIS MAY
LEAD TO UNWISE STIMULATION. 

THE RIGHT OF WEST VIRGINIA TO UTILIZE THE FLAG SALUTE AS PART OF ITS
EDUCATIONAL PROCESS IS DENIED BECAUSE, SO IT IS ARGUED, IT CANNOT BE
JUSTIFIED AS A MEANS OF MEETING A "CLEAR AND PRESENT DANGER" TO
NATIONAL UNITY.  IN PASSING IT DESERVES TO BE NOTED THAT THE FOUR CASES
WHICH UNANIMOUSLY SUSTAINED THE POWER OF STATES TO UTILIZE SUCH AN
EDUCATIONAL MEASURE AROSE AND WERE ALL DECIDED BEFORE THE PRESENT WORLD
WAR.  BUT TO MEASURE THE STATE'S POWER TO MAKE SUCH REGULATIONS AS ARE
HERE RESISTED BY THE IMMINENCE OF NATIONAL DANGER IS WHOLLY TO
MISCONCEIVE THE ORIGIN AND PURPOSE OF THE CONCEPT OF "CLEAR AND PRESENT
DANGER."  TO APPLY SUCH A TEST IS FOR THE COURT TO ASSUME, HOWEVER
UNWITTINGLY, A LEGISLATIVE RESPONSIBILITY THAT DOES NOT BELONG TO IT.
TO TALK ABOUT "CLEAR AND PRESENT DANGER" AS THE TOUCHSTONE OF ALLOWABLE
EDUCATIONAL POLICY BY THE STATES WHENEVER SCHOOL CURRICULA MAY IMPINGE
UPON THE BOUNDARIES OF INDIVIDUAL CONSCIENCE, IS TO TAKE A FELICITOUS
PHRASE OUT OF THE CONTEXT OF THE PARTICULAR SITUATION WHERE IT AROSE
AND FOR WHICH IT WAS ADAPTED.  MR. JUSTICE HOLMES USED THE PHRASE
"CLEAR AND PRESENT DANGER" IN A CASE INVOLVING MERE SPEECH AS A MEANS
BY WHICH ALONE TO ACCOMPLISH SEDITION IN TIME OF WAR.  BY THAT PHRASE
HE MEANT MERELY TO INDICATE THAT, IN VIEW OF THE PROTECTION GIVEN TO
UTTERANCE BY THE FIRST AMENDMENT, IN ORDER THAT MERE UTTERANCE MAY NOT
BE PROSCRIBED, "THE WORDS USED ARE USED IN SUCH CIRCUMSTANCES AND ARE
OF SUCH A NATURE AS TO CREATE A CLEAR AND PRESENT DANGER THAT THEY WILL
BRING ABOUT THE SUBSTANTIVE EVILS THAT CONGRESS HAS A RIGHT TO
PREVENT."  SCHENCK V. UNITED STATES, 249 U.S. 47, 52.  THE "SUBSTANTIVE
EVILS" ABOUT WHICH HE WAS SPEAKING WERE INDUCEMENT OF INSUBORDINATION
IN THE MILITARY AND NAVAL FORCES OF THE UNITED STATES AND OBSTRUCTION
OF ENLISTMENT WHILE THE COUNTRY WAS AT WAR.  HE WAS NOT ENUNCIATING A
FORMAL RULE THAT THERE CAN BE NO RESTRICTION UPON SPEECH AND, STILL
LESS, NO COMPULSION WHERE CONSCIENCE BALKS, UNLESS IMMINENT DANGER
WOULD THEREBY BE WROUGHT "TO OUR INSTITUTIONS OR OUR GOVERNMENT." 

THE FLAG SALUTE EXERCISE HAS NO KINSHIP WHATEVER TO THE OATH TESTS SO
ODIOUS IN HISTORY.  FOR THE OATH TEST WAS ONE OF THE INSTRUMENTS FOR
SUPPRESSING HERETICAL BELIEFS.  SALUTING THE FLAG SUPPRESSES NO BELIEF
NOR CURBS IT.  CHILDREN AND THEIR PARENTS MAY BELIEVE WHAT THEY PLEASE,
AVOW THEIR BELIEF AND PRACTICE IT.  IT IS NOT EVEN REMOTELY SUGGESTED
THAT THE REQUIREMENT FOR SALUTING THE FLAG INVOLVES THE SLIGHTEST
RESTRICTION AGAINST THE FULLEST OPPORTUNITY ON THE PART BOTH OF THE
CHILDREN AND OF THEIR PARENTS TO DISAVOW AS PUBLICLY AS THEY CHOOSE TO
DO SO THE MEANING THAT OTHERS ATTACH TO THE GESTURE OF SALUTE.  ALL
CHANNELS OF AFFIRMATIVE FREE EXPRESSION ARE OPEN TO BOTH CHILDREN AND
PARENTS.  HAD WE BEFORE US ANY ACT OF THE STATE PUTTING THE SLIGHTEST
CURBS UPON SUCH FREE EXPRESSION, I SHOULD NOT LAG BEHIND ANY MEMBER OF
THIS COURT IN STRIKING DOWN SUCH AN INVASION OF THE RIGHT TO FREEDOM OF
THOUGHT AND FREEDOM OF SPEECH PROTECTED BY THE CONSTITUTION. 

I AM FORTIFIED IN MY VIEW OF THIS CASE BY THE HISTORY OF THE FLAG
SALUTE CONTROVERSY IN THIS COURT.  FIVE TIMES HAS THE PRECISE QUESTION
NOW BEFORE US BEEN ADJUDICATED.  FOUR TIMES THE COURT UNANIMOUSLY FOUND
THAT THE REQUIREMENT OF SUCH A SCHOOL EXERCISE WAS NOT BEYOND THE
POWERS OF THE STATES.  INDEED IN THE FIRST THREE CASES TO COME BEFORE
THE COURT THE CONSTITUTIONAL CLAIM NOW SUSTAINED WAS DEEMED SO CLEARLY
UNMERITORIOUS THAT THIS COURT DISMISSED THE APPEALS FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION.  LEOLES V. LANDERS, 302 U.S. 656; HERING
V. STATE BOARD OF EDUCATION, 303 U.S. 624; GABRIELLI V. KNICKERBOCKER,
306 U.S. 621.  IN THE FOURTH CASE THE JUDGMENT OF THE DISTRICT COURT
UPHOLDING THE STATE LAW WAS SUMMARILY AFFIRMED ON THE AUTHORITY OF THE
EARLIER CASES.  JOHNSON V. DEERFIELD, 306 U.S. 621.  THE FIFTH CASE,
MINERSVILLE DISTRICT V. GOBITIS, 310 U.S. 586, WAS BROUGHT HERE BECAUSE
THE DECISION OF THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT RAN
COUNTER TO OUR RULINGS.  THEY WERE REAFFIRMED AFTER FULL CONSIDERATION,
WITH ONE JUSTICE DISSENTING. 

WHAT MAY BE EVEN MORE SIGNIFICANT THAN THIS UNIFORM RECOGNITION OF
STATE AUTHORITY IS THE FACT THAT EVERY JUSTICE - THIRTEEN IN ALL - WHO
HAS HITHERTO PARTICIPATED IN JUDGING THIS MATTER HAS AT ONE OR MORE
TIMES FOUND NO CONSTITUTIONAL INFIRMITY IN WHAT IS NOW CONDEMNED.  ONLY
THE TWO JUSTICES SITTING FOR THE FIRST TIME ON THIS MATTER HAVE NOT
HERETOFORE FOUND THIS LEGISLATION INOFFENSIVE TO THE "LIBERTY"
GUARANTEED BY THE CONSTITUTION.  AND AMONG THE JUSTICES WHO SUSTAINED
THIS MEASURE WERE OUTSTANDING JUDICIAL LEADERS IN THE ZEALOUS
ENFORCEMENT OF CONSTITUTIONAL SAFEGUARDS OF CIVIL LIBERTIES - MEN LIKE
CHIEF JUSTICE HUGHES, MR. JUSTICE BRANDEIS, AND MR. JUSTICE CARDOZO, TO
MENTION ONLY THOSE NO LONGER ON THE COURT. 

ONE'S CONCEPTION OF THE CONSTITUTION CANNOT BE SEVERED FROM ONE'S
CONCEPTION OF A JUDGE'S FUNCTION IN APPLYING IT.  THE COURT HAS NO
REASON FOR EXISTENCE IF IT MERELY REFLECTS THE PRESSURES OF THE DAY. 
OUR SYSTEM IS BUILT ON THE FAITH THAT MEN SET APART FOR THIS SPECIAL
FUNCTION, FREED FROM THE INFLUENCES OF IMMEDIACY AND FROM THE
DEFLECTIONS OF WORLDLY AMBITION, WILL BECOME ABLE TO TAKE A VIEW OF
LONGER RANGE THAN THE PERIOD OF RESPONSIBILITY ENTRUSTED TO CONGRESS
AND LEGISLATURES.  WE ARE DEALING WITH MATTERS AS TO WHICH LEGISLATORS
AND VOTERS HAVE CONFLICTING VIEWS.  ARE WE AS JUDGES TO IMPOSE OUR
STRONG CONVICTIONS ON WHERE WISDOM LIES?  THAT WHICH THREE YEARS AGO
HAD SEEMED TO FIVE SUCCESSIVE COURTS TO LIE WITHIN PERMISSIBLE AREAS OF
LEGISLATION IS NOW OUTLAWED BY THE DECIDING SHIFT OF OPINION OF TWO
JUSTICES.  WHAT REASON IS THERE TO BELIEVE THAT THEY OR THEIR
SUCCESSORS MAY NOT HAVE ANOTHER VIEW A FEW YEARS HENCE?  IS THAT WHICH
WAS DEEMED TO BE OF SO FUNDAMENTAL A NATURE AS TO BE WRITTEN INTO THE
CONSTITUTION TO ENDURE FOR ALL TIMES TO BE THE SPORT OF SHIFTING WINDS
OF DOCTRINE?  OF COURSE, JUDICIAL OPINIONS, EVEN AS TO QUESTIONS OF
CONSTITUTIONALITY, ARE NOT IMMUTABLE.  AS HAS BEEN TRUE IN THE PAST,
THE COURT WILL FROM TIME TO TIME REVERSE ITS POSITION.  BUT I BELIEVE
THAT NEVER BEFORE THESE JEHOVAH'S WITNESSES CASES (EXCEPT FOR MINOR
DEVIATIONS SUBSEQUENTLY RETRACED) HAS THIS COURT OVERRULED DECISIONS SO
AS TO RESTRICT THE POWERS OF DEMOCRATIC GOVERNMENT.  ALWAYS HERETOFORE,
IT HAS WITHDRAWN NARROW VIEWS OF LEGISLATIVE AUTHORITY SO AS TO
AUTHORIZE WHAT FORMERLY IT HAD DENIED. 

IN VIEW OF THIS HISTORY IT MUST BE PLAIN THAT WHAT THIRTEEN JUSTICES
FOUND TO BE WITHIN THE CONSTITUTIONAL AUTHORITY OF A STATE, LEGISLATORS
CAN NOT BE DEEMED UNREASONABLE IN ENACTING.  THEREFORE, IN DENYING TO
THE STATES WHAT HERETOFORE HAS RECEIVED SUCH IMPRESSIVE JUDICIAL
SANCTION, SOME OTHER TESTS OF UNCONSTITUTIONALITY MUST SURELY BE
GUIDING THE COURT THAN THE ABSENCE OF A RATIONAL JUSTIFICATION FOR THE
LEGISLATION.  BUT I KNOW OF NO OTHER TEST WHICH THIS COURT IS
AUTHORIZED TO APPLY IN NULLIFYING LEGISLATION. 

IN THE PAST THIS COURT HAS FROM TIME TO TIME SET ITS VIEWS OF POLICY
AGAINST THAT EMBODIED IN LEGISLATION BY FINDING LAWS IN CONFLICT WITH
WHAT WAS CALLED THE "SPIRIT OF THE CONSTITUTION."  SUCH UNDEFINED
DESTRUCTIVE POWER WAS NOT CONFERRED ON THIS COURT BY THE CONSTITUTION. 
BEFORE A DULY ENACTED LAW CAN BE JUDICIALLY NULLIFIED, IT MUST BE
FORBIDDEN BY SOME EXPLICIT RESTRICTION UPON POLITICAL AUTHORITY IN THE
CONSTITUTION.  EQUALLY INADMISSIBLE IS THE CLAIM TO STRIKE DOWN
LEGISLATION BECAUSE TO US AS INDIVIDUALS IT SEEMS OPPOSED TO THE "PLAN
AND PURPOSE" OF THE CONSTITUTION.  THAT IS TOO TEMPTING A BASIS FOR
FINDING IN ONE'S PERSONAL VIEWS THE PURPOSES OF THE FOUNDERS. 

THE UNCONTROLLABLE POWER WIELDED BY THIS COURT BRINGS IT VERY CLOSE
TO THE MOST SENSITIVE AREAS OF PUBLIC AFFAIRS.  AS APPEAL FROM
LEGISLATION TO ADJUDICATION BECOMES MORE FREQUENT, AND ITS CONSEQUENCES
MORE FAR-REACHING, JUDICIAL SELF-RESTRAINT BECOMES MORE AND NOT LESS
IMPORTANT, LEST WE UNWARRANTABLY ENTER SOCIAL AND POLITICAL DOMAINS
WHOLLY OUTSIDE OUR CONCERN.  I THINK I APPRECIATE FULLY THE OBJECTIONS
TO THE LAW BEFORE US.  BUT TO DENY THAT IT PRESENTS A QUESTION UPON
WHICH MEN MIGHT REASONABLY DIFFER APPEARS TO ME TO BE INTOLERANCE.  AND
SINCE MEN MAY SO REASONABLY DIFFER, I DEEM IT BEYOND MY CONSTITUTIONAL
POWER TO ASSERT MY VIEW OF THE WISDOM OF THIS LAW AGAINST THE VIEW OF
THE STATE OF WEST VIRGINIA. 

JEFFERSON'S OPPOSITION TO JUDICIAL REVIEW HAS NOT BEEN ACCEPTED BY
HISTORY, BUT IT STILL SERVES AS AN ADMONITION AGAINST CONFUSION BETWEEN
JUDICIAL AND POLITICAL FUNCTIONS.  AS A RULE OF JUDICIAL SELF
RESTRAINT, IT IS STILL AS VALID AS LINCOLN'S ADMONITION.  FOR THOSE WHO
PASS LAWS NOT ONLY ARE UNDER DUTY TO PASS LAWS.  THEY ARE ALSO UNDER
DUTY TO OBSERVE THE CONSTITUTION.  AND EVEN THOUGH LEGISLATION RELATES
TO CIVIL LIBERTIES, OUR DUTY OF DEFERENCE TO THOSE WHO HAVE THE
RESPONSIBILITY FOR MAKING THE LAWS IS NO LESS RELEVANT OR LESS
EXACTING.  AND THIS IS SO ESPECIALLY WHEN WE CONSIDER THE ACCIDENTAL
CONTINGENCIES BY WHICH ONE MAN MAY DETERMINE CONSTITUTIONALITY AND
THEREBY CONFINE THE POLITICAL POWER OF THE CONGRESS OF THE UNITED
STATES AND THE LEGISLATURES OF FORTY-EIGHT STATES.  THE ATTITUDE OF
JUDICIAL HUMILITY WHICH THESE CONSIDERATIONS ENJOIN IS NOT AN
ABDICATION OF THE JUDICIAL FUNCTION.  IT IS A DUE OBSERVANCE OF ITS
LIMITS.  MOREOVER, IT IS TO BE BORNE IN MIND THAT IN A QUESTION LIKE
THIS WE ARE NOT PASSING ON THE PROPER DISTRIBUTION OF POLITICAL POWER
AS BETWEEN THE STATES AND THE CENTRAL GOVERNMENT.  WE ARE NOT
DISCHARGING THE BASIC FUNCTION OF THIS COURT AS THE MEDIATOR OF POWERS
WITHIN THE FEDERAL SYSTEM.  TO STRIKE DOWN A LAW LIKE THIS IS TO DENY A
POWER TO ALL GOVERNMENT. 

THE WHOLE COURT IS CONSCIOUS THAT THIS CASE REACHES ULTIMATE
QUESTIONS OF JUDICIAL POWER AND ITS RELATION TO OUR SCHEME OF
GOVERNMENT.  IT IS APPROPRIATE, THEREFORE, TO RECALL AN UTTERANCE AS
WISE AS ANY THAT I KNOW IN ANALYZING WHAT IS REALLY INVOLVED WHEN THE
THEORY OF THIS COURT'S FUNCTION IS PUT TO THE TEST OF PRACTICE.  THE
ANALYSIS IS THAT OF JAMES BRADLEY THAYER: 

"  ...  THERE HAS DEVELOPED A VAST AND GROWING INCREASE OF JUDICIAL
INTERFERENCE WITH LEGISLATION.  THIS IS A VERY DIFFERENT STATE OF
THINGS FROM WHAT OUR FATHERS CONTEMPLATED, A CENTURY AND MORE AGO, IN
FRAMING THE NEW SYSTEM.  SELDOM, INDEED, AS THEY IMAGINED, UNDER OUR
SYSTEM, WOULD THIS GREAT, NOVEL, TREMENDOUS POWER OF THE COURTS BE
EXERTED,  - WOULD THIS SACRED ARK OF THE COVENANT BE TAKEN FROM WITHIN
THE VEIL.  MARSHALL HIMSELF EXPRESSED TRULY ONE ASPECT OF THE MATTER,
WHEN HE SAID IN ONE OF THE LATER YEARS OF HIS LIFE:  'NO QUESTIONS CAN
BE BROUGHT BEFORE A JUDICIAL TRIBUNAL OF GREATER DELICACY THAN THOSE
WHICH INVOLVE THE CONSTITUTIONALITY OF LEGISLATIVE ACTS.  IF THEY
BECOME INDISPENSABLY NECESSARY TO THE CASE, THE COURT MUST MEET AND
DECIDE THEM; BUT IF THE CASE MAY BE DETERMINED ON OTHER GROUNDS, A JUST
RESPECT FOR THE LEGISLATURE REQUIRES THAT THE OBLIGATION OF ITS LAWS
SHOULD NOT BE UNNECESSARILY AND WANTONLY ASSAILED.'  AND AGAIN, A
LITTLE EARLIER THAN THIS, HE LAID DOWN THE ONE TRUE RULE OF DUTY FOR
THE COURTS.  WHEN HE WENT TO PHILADELPHIA AT THE END OF SEPTEMBER, IN
1831, ON THAT PAINFUL ERRAND OF WHICH I HAVE SPOKEN, IN ANSWERING A
CORDIAL TRIBUTE FROM THE BAR OF THAT CITY HE REMARKED THAT IF HE MIGHT
BE PERMITTED TO CLAIM FOR HIMSELF AND HIS ASSOCIATES ANY PART OF THE
KIND THINGS THEY HAD SAID, IT WOULD BE THIS, THAT THEY HAD 'NEVER
SOUGHT TO ENLARGE THE JUDICIAL POWER BEYOND ITS PROPER BOUNDS, NOR
FEARED TO CARRY IT TO THE FULLEST EXTENT THAT DUTY REQUIRED.' 

"THAT IS THE SAFE TWOFOLD RULE; NOR IS THE FIRST PART OF IT ANY WHIT
LESS IMPORTANT THAN THE SECOND; NAY, MORE; TODAY IT IS THE PART WHICH
MOST REQUIRES TO BE EMPHASIZED.  FOR JUST HERE COMES IN A CONSIDERATION
OF VERY GREAT WEIGHT.  GREAT AND, INDEED, INESTIMABLE AS ARE THE
ADVANTAGES IN A POPULAR GOVERNMENT OF THIS CONSERVATIVE INFLUENCE,  -
THE POWER OF THE JUDICIARY TO DISREGARD UNCONSTITUTIONAL LEGISLATION,
IT SHOULD BE REMEMBERED THAT THE EXERCISE OF IT, EVEN WHEN
UNAVOIDABLE, IS ALWAYS ATTENDED WITH A SERIOUS EVIL, NAMELY, THAT THE
CORRECTION OF LEGISLATIVE MISTAKES COMES FROM THE OUTSIDE, AND THE
PEOPLE THUS LOSE THE POLITICAL EXPERIENCE, AND THE MORAL EDUCATION AND
STIMULUS THAT COME FROM FIGHTING THE QUESTION OUT IN THE ORDINARY WAY,
AND CORRECTING THEIR OWN ERRORS.  IF THE DECISION IN MUNN V. ILLINOIS
AND THE 'GRANGER CASES,' TWENTY-FIVE YEARS AGO, AND IN THE 'LEGAL
TENDER CASES,' NEARLY THIRTY YEARS AGO, HAD BEEN DIFFERENT; AND THE
LEGISLATION THERE IN QUESTION, THOUGHT BY MANY TO BE UNCONSTITUTIONAL
AND BY MANY MORE TO BE ILL-ADVISED, HAD BEEN SET ASIDE, WE SHOULD HAVE
BEEN SAVED SOME TROUBLE AND SOME HARM.  BUT I VENTURE TO THINK THAT THE
GOOD WHICH CAME TO THE COUNTRY AND ITS PEOPLE FROM THE VIGOROUS
THINKING THAT HAD TO BE DONE IN THE POLITICAL DEBATES THAT FOLLOWED,
FROM THE INFILTRATION THROUGH EVERY PART OF THE POPULATION OF SOUND
IDEAS AND SENTIMENTS, FROM THE ROUSING INTO ACTIVITY OF OPPOSITE
ELEMENTS, THE ENLARGEMENT OF IDEAS, THE STRENGTHENING OF MORAL FIBRE,
AND THE GROWTH OF POLITICAL EXPERIENCE THAT CAME OUT OF IT ALL,  - THAT
ALL THIS FAR MORE THAN OUTWEIGHED ANY EVIL WHICH EVER FLOWED FROM THE
REFUSAL OF THE COURT TO INTERFERE WITH THE WORK OF THE LEGISLATURE. 

"THE TENDENCY OF A COMMON AND EASY RESORT TO THIS GREAT FUNCTION, NOW
LAMENTABLY TOO COMMON, IS TO DWARF THE POLITICAL CAPACITY OF THE
PEOPLE, AND TO DEADEN ITS SENSE OF MORAL RESPONSIBILITY.  IT IS NO
LIGHT THING TO DO THAT. 

"WHAT CAN BE DONE?  IT IS THE COURTS THAT CAN DO MOST TO CURE THE
EVIL; AND THE OPPORTUNITY IS A VERY GREAT ONE.  LET THEM RESOLUTELY
ADHERE TO FIRST PRINCIPLES.  LET THEM CONSIDER HOW NARROW IS THE
FUNCTION WHICH THE CONSTITUTIONS HAVE CONFERRED ON THEM - THE OFFICE
MERELY OF DECIDING LITIGATED CASES; HOW LARGE, THEREFORE, IS THE DUTY
INTRUSTED TO OTHERS, AND ABOVE ALL TO THE LEGISLATURE.  IT IS THAT BODY
WHICH IS CHARGED, PRIMARILY, WITH THE DUTY OF JUDGING OF THE
CONSTITUTIONALITY OF ITS WORK.  THE CONSTITUTIONS GENERALLY GIVE THEM
NO AUTHORITY TO CALL UPON A COURT FOR ADVICE; THEY MUST DECIDE FOR
THEMSELVES, AND THE COURTS MAY NEVER BE ABLE TO SAY A WORD.  SUCH A
BODY, CHARGED, IN EVERY STATE, WITH ALMOST ALL THE LEGISLATIVE POWER OF
THE PEOPLE, IS ENTITLED TO THE MOST ENTIRE AND REAL RESPECT; IS
ENTITLED, AS AMONG ALL RATIONALLY PERMISSIBLE OPINIONS AS TO WHAT THE
CONSTITUTION ALLOWS, TO ITS OWN CHOICE.  COURTS, AS HAS OFTEN BEEN
SAID, ARE NOT TO THINK OF THE LEGISLATORS, BUT OF THE LEGISLATURE - THE
GREAT, CONTINUOUS BODY ITSELF, ABSTRACTED FROM ALL THE TRANSITORY
INDIVIDUALS WHO MAY HAPPEN TO HOLD ITS POWER.  IT IS THIS MAJESTIC
REPRESENTATIVE OF THE PEOPLE WHOSE ACTION IS IN QUESTION, A COORDINATE
DEPARTMENT OF THE GOVERNMENT, CHARGED WITH THE GREATEST FUNCTIONS, AND
INVESTED, IN CONTEMPLATION OF LAW, WITH WHATSOEVER WISDOM, VIRTUE, AND
KNOWLEDGE THE EXERCISE OF SUCH FUNCTIONS REQUIRES. 

"TO SET ASIDE THE ACTS OF SUCH A BODY, REPRESENTING IN ITS OWN FIELD,
WHICH IS THE VERY HIGHEST OF ALL, THE ULTIMATE SOVEREIGN, SHOULD BE A
SOLEMN, UNUSUAL, AND PAINFUL ACT.  SOMETHING IS WRONG WHEN IT CAN EVER
BE OTHER THAN THAT.  AND IF IT BE TRUE THAT THE HOLDERS OF LEGISLATIVE
POWER ARE CARELESS OR EVIL, YET THE CONSTITUTIONAL DUTY OF THE COURT
REMAINS UNTOUCHED; IT CANNOT RIGHTLY ATTEMPT TO PROTECT THE PEOPLE, BY
UNDERTAKING A FUNCTION NOT ITS OWN.  ON THE OTHER HAND, BY ADHERING
RIGIDLY TO ITS OWN DUTY, THE COURT WILL HELP, AS NOTHING ELSE CAN, TO
FIX THE SPOT WHERE RESPONSIBILITY LIES, AND TO BRING DOWN ON THAT
PRECISE LOCALITY THE THUNDERBOLT OF POPULAR CONDEMNATION.  THE
JUDICIARY, TODAY, IN DEALING WITH THE ACTS OF THEIR COORDINATE
LEGISLATORS, OWE TO THE COUNTRY NO GREATER OR CLEARER DUTY THAN THAT OF
KEEPING THEIR HANDS OFF THESE ACTS WHEREVER IT IS POSSIBLE TO DO IT.
FOR THAT COURSE - THE TRUE COURSE OF JUDICIAL DUTY ALWAYS - WILL
POWERFULLY HELP TO BRING THE PEOPLE AND THEIR REPRESENTATIVES TO A
SENSE OF THEIR OWN RESPONSIBILITY.  THERE WILL STILL REMAIN TO THE
JUDICIARY AN AMPLE FIELD FOR THE DETERMINATIONS OF THIS REMARKABLE
JURISDICTION, OF WHICH OUR AMERICAN LAW HAS SO MUCH REASON TO BE PROUD;
A JURISDICTION WHICH HAS HAD SOME OF ITS CHIEF ILLUSTRATIONS AND ITS
GREATEST TRIUMPHS, AS IN MARSHALL'S TIME, SO IN OURS, WHILE THE COURTS
WERE REFUSING TO EXERCISE IT."  J. B. THAYER, JOHN MARSHALL, (1901) 104
10. 

OF COURSE PATRIOTISM CAN NOT BE ENFORCED BY THE FLAG SALUTE.  BUT
NEITHER CAN THE LIBERAL SPIRIT BE ENFORCED BY JUDICIAL INVALIDATION OF
ILLIBERAL LEGISLATION.  OUR CONSTANT PREOCCUPATION WITH THE
CONSTITUTIONALITY OF LEGISLATION RATHER THAN WITH ITS WISDOM TENDS TO
PREOCCUPATION OF THE AMERICAN MIND WITH A FALSE VALUE.  THE TENDENCY OF
FOCUSSING ATTENTION ON CONSTITUTIONALITY IS TO MAKE CONSTITUTIONALITY
SYNONYMOUS WITH WISDOM, TO REGARD A LAW AS ALL RIGHT IF IT IS
CONSTITUTIONAL.  SUCH AN ATTITUDE IS A GREAT ENEMY OF LIBERALISM. 
PARTICULARLY IN LEGISLATION AFFECTING FREEDOM OF THOUGHT AND FREEDOM OF
SPEECH MUCH WHICH SHOULD OFFEND A FREE-SPIRITED SOCIETY IS
CONSTITUTIONAL.  RELIANCE FOR THE MOST PRECIOUS INTERESTS OF
CIVILIZATION, THEREFORE, MUST BE FOUND OUTSIDE OF THEIR VINDICATION IN
COURTS OF LAW.  ONLY A PERSISTENT POSITIVE TRANSLATION OF THE FAITH OF
A FREE SOCIETY INTO THE CONVICTIONS AND HABITS AND ACTIONS OF A
COMMUNITY IS THE ULTIMATE RELIANCE AGAINST UNABATED TEMPTATIONS TO
FETTER THE HUMAN SPIRIT. 
..END :







I.C.C. V. INLAND WATERWAYS CORP., 319 U.S. 671 


NO. 175.  ARGUED JANUARY 11, 12, 1943.  - DECIDED JUNE 14, 1943.  - 44
F.SUPP.  368, REVERSED. 


PROPORTIONAL RATES ON RESHIPMENTS FROM CHICAGO TO EASTERN DESTINATIONS
OF GRAIN COMING FROM DISTANT POINTS NORTHWEST ON THROUGH SHIPMENT WITH
TRANSIT PRIVILEGES AND ARRIVING AT CHICAGO BY RAIL OR BY LAKE STEAMER,
BECAME APPLICABLE BY REASON OF TARIFF WORDINGS TO GRAIN COMING FROM
POINTS CLOSE TO CHICAGO ARRIVING BY BARGE OVER THE ILLINOIS WATERWAYS
ROUTE WHICH WAS ESTABLISHED AFTER THE TARIFFS WERE ADOPTED.  THE
RAILROADS FILED TARIFF AMENDMENTS WHICH WOULD DENY TO THE EX-BARGE
GRAIN THE PRIVILEGE OF MOVING EASTWARD ON THE PROPORTIONAL RATES, AND
REMIT IT TO THE HIGHER LOCAL RATES WHICH GRAIN ENTERING CHICAGO BY
TRUCK OR FROM LOCAL ORIGINS BY RAIL WAS OBLIGED TO PAY.  HELD: 

1. THAT AN ORDER BY THE INTERSTATE COMMERCE COMMISSION IN A
PROCEEDING UNDER SEC. 15(7) OF THE INTERSTATE COMMERCE ACT, WHICH
RELIEVED THE PROPOSED TARIFF AMENDMENTS FROM SUSPENSION, AS NOT
"UNLAWFUL," BUT WHICH DID NOT PREVENT FUTURE ADJUSTMENTS ON SPECIFIC
COMPLAINT OF THE RATES ON THE EX-BARGE TRAFFIC, WAS A DETERMINATION
WITHIN THE ADMINISTRATIVE COMPETENCY OF THE COMMISSION WITH WHICH THE
DISTRICT COURT SHOULD NOT HAVE INTERFERED.  P. 685. 

2.  PROPORTIONAL RATES DIFFERING FROM EACH OTHER ACCORDING TO THE
ORIGIN OF THE COMMODITY MAY BE FIXED LOWER THAN LOCAL RATES AND MAY
APPLY TO OUTBOUND MOVEMENTS AFTER STOPOVER IN TRANSIT.  P. 684. 

3.  SINCE THE COMMISSION REFUSED TO APPROVE OR PRESCRIBE THE RATES
HERE IN CONTROVERSY, THEY STAND ONLY AS CARRIER-MADE RATES AND ARE
SUBJECT TO POSSIBLE RECOVERY OF REPARATIONS.  P. 686. 

4.  TO PERPETUATE THE EXISTING RATE STRUCTURE BY SUSTAINING THE
DISTRICT COURT'S INJUNCTION WOULD FAVOR THE EX-BARGE GRAIN OVER GRAIN
MOVING EAST FROM CHICAGO ON LOCAL RATES, THEREBY ENTAILING VIOLATIONS
OF SEC. 4(1) OF THE ACT AS IT STOOD BEFORE AND AFTER AMENDMENT BY THE
TRANSPORTATION ACT OF 1940.  P. 687. 

5.  NOTHING IN THE TRANSPORTATION ACT OF 1940 WARRANTS HOLDING THAT
THE EX-BARGE GRAIN (MOSTLY CORN), MERELY BECAUSE IT MOVED OVER A
COMPARATIVELY SLIGHT DISTANCE BY WATER, MUST AS A MATTER OF LAW BE
GIVEN THE BENEFIT OF PROPORTIONALS FIXED WITH REFERENCE TO GRAIN
(MOSTLY WHEAT) FROM THE NORTHWEST, INCLUDING POINTS IN CANADA AND AS
FAR WEST IN THE UNITED STATES AS WASHINGTON AND THE DAKOTAS.  P. 687. 

6.  SEC. 15(7) OF THE INTERSTATE COMMERCE ACT, PROVIDING THAT AFTER
SUSPENSION OF A CARRIER-PROPOSED RATE THE COMMISSION "MAY MAKE SUCH
ORDER WITH REFERENCE THERETO AS WOULD BE PROPER IN A PROCEEDING
INITIATED AFTER IT HAD BECOME EFFECTIVE," DID NOT OBLIGE THE
COMMISSION, IN THE CIRCUMSTANCES OF THIS CASE, TO CONTINUE THE
SUSPENSION PROCEEDINGS AND ESTABLISH SPECIAL PROPORTIONALS FOR THE
BARGE LINES UNDER SEC. 6(1) OF THE ACT.  P. 689. 

7.  THE FUNCTION OF THIS COURT DOES NOT PERMIT IT TO PRESCRIBE OR
APPROVE RATES, AND THE DECISION IN THIS CASE CARRIES NO IMPLICATION OF
APPROVAL OF ANY RATES HERE INVOLVED; NOR CAN THE COURT PRESCRIBE
GENERAL ATTITUDES THE COMMISSION MUST ADOPT TOWARDS THE EXERCISE OF
DISCRETION LEFT TO IT, RATHER THAN TO THE COURTS, BY THE ACT OF
CONGRESS.  P. 691. 

INTERSTATE COMMERCE COMMISSION ET AL. V. INLAND WATERWAYS CORP. ET
AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES ENJOINING
THE ENFORCEMENT OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.  THE
BILL WAS FILED BY THE INLAND WATERWAYS CORPORATION.  OTHER PARTIES,
INCLUDING THE INTERSTATE COMMERCE COMMISSION AND THE SECRETARY OF
AGRICULTURE, WERE ALLOWED TO INTERVENE AS PLAINTIFFS OR DEFENDANTS. 
THE ATTORNEY GENERAL, FOR REASONS EXPLAINED IN THE OPINION, INFRA (P.
683), DID NOT PARTICIPATE. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

BY SCHEDULES FILED WITH THE INTERSTATE COMMERCE COMMISSION TO BECOME
EFFECTIVE OCTOBER 15, 1939, THE APPELLANT EASTERN RAILROADS  FN1
SOUGHT TO DENY GRAIN ARRIVING AT CHICAGO BY BARGE OVER THE ILLINOIS
WATERWAYS THE PRIVILEGE OF MOVING OUT OF CHICAGO BY RAIL ON
"PROPORTIONAL" RATES APPLICABLE TO COMPETING GRAIN ARRIVING AT CHICAGO
BY LAKE STEAMER OR RAIL.  THE ONLY OTHER RATES ON WHICH THE EX-BARGE
GRAIN COULD MOVE EASTWARD BY RAIL FROM CHICAGO WERE "LOCAL" RATES,
WHICH WERE IN ALL CASES HIGHER THAN THE EXISTING "PROPORTIONAL" RATES. 
THE PROPOSED SCHEDULES WERE PROTESTED BY BARGE LINES AND OTHERS
DESIROUS OF MAINTAINING THE EXISTING PROPORTIONALS AS TO EX-BARGE
GRAIN. 

UNDERSTANDING OF THE CONTROVERSY THUS PRECIPITATED AND THE CONSEQUENT
LITIGATION WHICH HAS BROUGHT IT TO THIS COURT REQUIRES A STATEMENT OF
THE RATHER COMPLICATED RATE STRUCTURE TO WHICH THE PROPOSED SCHEDULES
RELATED. 

THE PROPOSED SCHEDULES APPLIED TO GRAIN, GRAIN PRODUCTS AND GRAIN BY
PRODUCTS, BUT FOR CONVENIENCE WE REFER TO THEM ALL AS "GRAIN."  THEY
DEALT NOT ONLY WITH GRAIN COMING BY BARGE VIA THE ILLINOIS WATERWAYS TO
CHICAGO, BUT ALSO WITH GRAIN SO ARRIVING AT PEORIA, ILLINOIS, ST.
LOUIS, MISSOURI, AND OTHER RELATED RATE-BREAK POINTS.  CHICAGO IS
ILLUSTRATIVE OF ALL, AND FOR CONVENIENCE WE SHALL FOLLOW THE PRACTICE
EMPLOYED BY THE PARTIES IN BRIEFS AND ARGUMENT, AND CONFINE OUR
DISCUSSION TO IT. 

GRAIN ORIGINATING AT CHICAGO, GRAIN BROUGHT THERE BY TRUCK, OR BY
RAIL UNDER INTRASTATE RATES, AND GRAIN WHICH HAD FORFEITED ITS TRANSIT
PRIVILEGES, MOVED EASTWARD BY RAIL FROM CHICAGO ON LOCAL RATES.  THEIR
VALIDITY AS SUCH HAS NOT BEEN QUESTIONED IN THIS CASE. 

GRAIN ORIGINATING AT CERTAIN PLACES DISTANT FROM CHICAGO HAD THE
PRIVILEGE, HOWEVER, OF MOVING EASTWARD FROM CHICAGO BY RAIL ON THE
LOWER PROPORTIONAL RATES, ALTHOUGH IT CAME TO REST AT CHICAGO FOR
MARKETING OR PROCESSING.  THESE "PROPORTIONALS" VARIED ACCORDING TO THE
REGION OF ORIGIN OR THE REGION OF DESTINATION; AND, IN SOME INSTANCES,
ACCORDING TO BOTH. 

"OFFICIAL TERRITORY" LIES EAST OF CHICAGO, AND IS DIVIDED INTO
"CENTRAL TERRITORY," "TRUNK-LINE TERRITORY," AND "NEW ENGLAND
TERRITORY."  CENTRAL TERRITORY LIES WEST OF A LINE DRAWN THROUGH
PITTSBURGH AND BUFFALO.  TO THIS TERRITORY THERE WERE THREE DIFFERENT
SETS OF PROPORTIONALS, SET WITH REFERENCE TO THE TERRITORY OF ORIGIN. 

GRAIN ORIGINATING AT CERTAIN POINTS IN ILLINOIS MOVED OUT OF CHICAGO
BY RAIL TO CENTRAL TERRITORY ON "ILLINOIS RE-SHIPPING" PROPORTIONALS,
WHICH, HOWEVER, DID NOT APPLY TO EX-BARGE GRAIN AND WERE NOT AFFECTED
BY THE PROPOSED SCHEDULES. 

GRAIN ORIGINATING IN "NORTHWEST TERRITORY" MOVED OUT OF CHICAGO BY
RAIL TO CENTRAL TERRITORY ON "NORTHWEST" PROPORTIONALS, WHICH WERE IN
SOME INSTANCES HIGHER, AND IN OTHERS LOWER, THAN THE ILLINOIS RE
SHIPPING PROPORTIONALS.  AS FIRST PUBLISHED, THESE PROPORTIONALS
APPLIED ONLY TO GRAIN ORIGINATING IN NORTHWEST TERRITORY, WHICH
COMPRISES GENERALLY NORTH DAKOTA, SOUTH DAKOTA, MINNESOTA, WISCONSIN,
THE UPPER PENINSULA OF MICHIGAN, MONTANA, WYOMING, IDAHO, OREGON,
WASHINGTON, AND CERTAIN CANADIAN PROVINCES.  THE NORTHWEST
PROPORTIONALS WERE ORIGINALLY AND HAVE CONTINUED TO BE APPLICABLE ON
GRAIN ARRIVING AT CHICAGO BY LAKE.  IN 1932 THE NORTHWEST PROPORTIONALS
WERE AMENDED TO MAKE THEM APPLY TO SHIPMENTS WHICH "ARRIVED BY BOAT
LINE AT CHICAGO ...  "  AT THE TIME THIS WORDING WAS PUT INTO THE
TARIFFS THE ONLY WATER-BORNE GRAIN TO WHICH THEY APPLIED WAS THAT
ARRIVING FROM THE NORTHWEST BY BOAT OVER THE GREAT LAKES.  THE
COMMISSION HAS DECIDED THAT THE EFFECT OF THIS AMENDMENT WAS TO MAKE
THE NORTHWEST PROPORTIONALS APPLY TO GRAIN ARRIVING BY BARGE OVER THE
ILLINOIS WATERWAYS, WHICH WERE OPENED IN THE FOLLOWING YEAR, 1933; AND
WE ACCEPT ITS DETERMINATION OF THIS ISSUE.  WHILE SHIPPING POINTS ALONG
THE WATERWAYS VARY FROM 57.5 TO 200.9 MILES IN DISTANCE FROM CHICAGO,
SOME GRAIN ARRIVING THERE BY BARGE ORIGINATED AT POINTS AS FAR BEYOND
AS KANSAS CITY AND ST. LOUIS.  THE NORTHWEST PROPORTIONALS WERE THE
ONLY ONES WHICH APPLIED TO EX-BARGE GRAIN MOVING OUT OF CHICAGO BY RAIL
TO CENTRAL TERRITORY, AND THE PROPOSED SCHEDULES CANCELLED THEM AS TO
SUCH GRAIN. 

GRAIN BROUGHT BY RAIL FROM "TRANS-MISSISSIPPI TERRITORY," WHICH
INCLUDED, AMONG OTHER PLACES, KANSAS CITY AND ST. LOUIS, MOVED OUT OF
CHICAGO TO CENTRAL TERRITORY ON "TRANS-MISSISSIPPI" PROPORTIONALS,
WHICH HAD BEEN SET BY THE COMMISSION 3 CENTS LOWER THAN THE NORTHWEST
PROPORTIONALS, IN ORDER TO EQUALIZE THE TWIN CITIES WITH KANSAS CITY. 
THE TRANS-MISSISSIPPI PROPORTIONALS DID NOT APPLY TO GRAIN COMING FROM
THESE POINTS BY BARGE, AND THEREFORE SUCH GRAIN HAD TO PAY A HIGHER
RATE FOR THE OUTBOUND HAUL THAN WAS REQUIRED OF GRAIN COMING FROM THEM
BY RAIL.  NO COMPLAINT HAS BEEN MADE, HOWEVER, OF THIS; AND THE
APPELLEES HAVE BEEN CONTENT TO ASSERT THAT THEY ARE ENTITLED TO THE
NORTHWEST PROPORTIONALS AS TO SUCH GRAIN. 

"TRUNK-LINE TERRITORY" LIES BETWEEN CENTRAL TERRITORY AND NEW ENGLAND
TERRITORY, WHICH COMPRISES THE NEW ENGLAND STATES.  TO TRUNK-LINE AND
NEW ENGLAND TERRITORIES THE PROPORTIONALS DID NOT VARY WITH THE POINT
OF ORIGIN OF THE GRAIN.  THESE PROPORTIONALS APPLIED TO GRAIN COMING TO
CHICAGO BY BARGE OVER THE ILLINOIS WATERWAYS, AND THE PROPOSED
SCHEDULES CANCELLED THEM AS TO SUCH GRAIN.  THE EXISTING SCHEDULES
PROVIDED THAT "IN NO CASE SHALL THE COMBINATION THROUGH RATE TO AND
FROM THE RESHIPPING POINT VIA RAIL BE LESS THAN THE LOCAL RATE FROM THE
RE-SHIPPING POINT TO DESTINATION, THE DIFFERENCE NECESSARY TO PROTECT
THE LOCAL RATE FROM THE RE-SHIPPING POINT TO BE ADDED TO THE RE
SHIPPING RATE THEREFROM."  NO SUCH PROVISION WAS MADE WITH RESPECT TO
THE BARGE-RAIL TRAFFIC, AND THE COMMISSION FOUND ACCORDINGLY THAT "THE
BARGE-RAIL RATES ARE FAR BELOW THE LOCAL RATES FROM THE RE-SHIPPING
POINTS IN CONTRAVENTION OF THE FOURTH-SECTION RULE,  FN2 WHILE THE ALL
RAIL RATES ARE IN STRICT CONFORMITY WITH THAT RULE." 

WHEN THE PROPOSED SCHEDULES WERE FILED WITH THE COMMISSION, THAT
BODY, ACTING PURSUANT TO ITS AUTHORITY UNDER SEC. 15(7) OF THE ACT,
FN3  SUSPENDED THEM FOR THE ALLOWABLE PERIOD OF SEVEN MONTHS AND
ENTERED UPON A HEARING OF THEIR LAWFULNESS.  THE LAST TESTIMONY WAS
HEARD, AND THE RECORD IN THE CASE CLOSED, ON JANUARY 26, 1940.  ON
SEPTEMBER 18, 1940, THE PRESIDENT APPROVED THE TRANSPORTATION ACT OF
1940.  FN4  THEREAFTER THE APPELLEE INLAND WATERWAYS CORPORATION
REQUESTED THE COMMISSION TO DISPOSE OF THE PROCEEDING IN THE LIGHT OF
THE NEW ACT.  ON JULY 31, 1941, DIVISION 2 OF THE COMMISSION FOUND THAT
"THE PROPORTIONAL RATES HERE IN ISSUE HAVE NEVER BEEN APPLICABLE ON
THIS BARGE TRAFFIC MOVING ON UNFILED RATES," AND THAT "THE SCHEDULES
UNDER SUSPENSION ARE NOT SHOWN TO BE UNLAWFUL."  IT ANNOUNCED THAT AN
ORDER WOULD BE ENTERED VACATING THE ALREADY EXPIRED ORDER OF SUSPENSION
AND DISCONTINUING THE PROCEEDINGS.  FN5  WHEN THE PERIOD OF COMPULSORY
SUSPENSION ENDED, THE CARRIERS HAD VOLUNTARILY CONTINUED THE
SUSPENSION. 

IN ITS PETITION FOR REHEARING AND RECONSIDERATION OF THIS REPORT THE
INLAND WATERWAYS CORPORATION ASSERTED THAT THE COMMISSION HAD PERMITTED
DISCRIMINATION AGAINST A CONNECTING LINE FORBIDDEN BY SEC. 3(4) OF THE
INTERSTATE COMMERCE ACT AS AMENDED BY THE TRANSPORTATION ACT OF 1940. 
FN6  IT SUGGESTED THAT THE COMMISSION FIX THE EXISTING PROPORTIONAL
RATES AS THE PROPER ONES, STATING THAT:  "THEORETICALLY, THE COMMISSION
IS NOT LIMITED TO A CHOICE BETWEEN THE UNLAWFUL PROPOSED RATES AND THE
PRESENT RATES, BUT MAY, UPON AN ADEQUATE RECORD, PRESCRIBE SOME
DIFFERENT BASIS OF RATES FOR THE FUTURE.  ACTUALLY, NO DIFFERENT
PROPOSAL HAS BEEN INTRODUCED WHICH COULD SUPPORT A DIFFERENT BASIS OF
RATES THAN THOSE PRESENTLY IN EFFECT.  THAT FACT, HOWEVER, CANNOT
POSSIBLY MILITATE TO JUSTIFY THE PROPOSED RATES, BUT COULD ONLY COMPEL
THE POSTPONEMENT OF ANY CHANGE IN THE PRESENT TARIFFS PENDING FURTHER
HEARING, AND THE INTRODUCTION OF A LAWFUL PROPOSAL."  FN7 

THE DECISION OF THE WHOLE COMMISSION ON RECONSIDERATION WAS ANNOUNCED
ON DECEMBER 1, 1941.  FN8 IN IT THE COMMISSION TOOK OFFICIAL NOTICE
THAT CERTAIN OF THE PROTESTANT BARGE CARRIERS HAD ATTAINED COMMON
CARRIER STATUS UNDER THE ACT, AND STATED THAT "NO USEFUL PURPOSE WOULD
BE SERVED BY FURTHER HEARING OR REARGUMENT."  FN9  THE COMMISSION
REVIEWED THE EXISTING RATE STRUCTURE AND THE PROBABLE EFFECTS OF THE
PROPOSED CHANGES IN OPERATION AS CONTRASTED TO THE EFFECTS OF DENYING
THEM, AND SAID: 

"THE PROPOSED SCHEDULES WILL NOT PROHIBIT THE MOVEMENT BY BARGE-RAIL
EVEN TO TRUNK-LINE TERRITORY, THEIR PRINCIPAL COMMERCIAL EFFECT BEING
TO REDUCE THE PROFITS OF THE CHICAGO ELEVATOR OPERATORS.  ...  FN10 

"PROTESTANTS MAINTAIN THAT THE PROPOSED SCHEDULES WILL BE
UNREASONABLE, UNJUSTLY DISCRIMINATORY, AND UNDULY PREJUDICIAL  ...  AND
UNDULY PREFERENTIAL.  ...  THIS IS BASED PRIMARILY ON THE FACT THAT
UNDER THE PROPOSED SCHEDULES THE EX-BARGE RATES WILL BE HIGHER THAN THE
EX-RAIL OR EX-LAKE RATES, ALTHOUGH IN EACH INSTANCE THE PHYSICAL
CARRIAGE BEYOND THE RESHIPPING POINT IS SUBSTANTIALLY THE SAME.  BUT
THE LATTER IS ALSO TRUE OF LOCAL GRAIN, GRAIN BROUGHT IN BY TRUCK, OR
BY RAIL UNDER INTRASTATE RATES, OR GRAIN WHICH HAS FORFEITED ITS
TRANSIT PRIVILEGES.  TO ADOPT PROTESTANTS' PREMISE WOULD MEAN THAT ALL
PROPORTIONAL RATES LOWER THAN LOCAL RATES AND DIFFERING FROM EACH OTHER
ACCORDING TO THE ORIGIN OF THE COMMODITY WOULD HAVE TO BE CONDEMNED. 
AS POINTED OUT BY THE DIVISION, RESHIPPING OR PROPORTIONAL RATES ARE IN
THEIR ESSENCE BALANCES OF THROUGH RATES.  SUCH BALANCES ARE, OF COURSE,
DETERMINED BY THE MEASURE OF THE IN-BOUND AND THROUGH RATES, AND
PROPERLY MAY VARY ACCORDING TO THE RELATIVE LENGTH AND NATURE OF THE IN
BOUND AND THROUGH SERVICE.  IT FOLLOWS THAT THE PROTESTANTS'
ALLEGATIONS CANNOT BE SUSTAINED IN THIS PROCEEDING, ALTHOUGH IN A
PROPER PROCEEDING WE MIGHT PRESCRIBE PROPORTIONAL RATES ON THE EX-BARGE
TRAFFIC LOWER THAN LOCAL RATES OR JOINT BARGE-RAIL RATES LOWER THAN THE
COMBINATIONS. 

"THE FACTS OF RECORD, AS DETAILED BY THE DIVISION AND SUMMARIZED
HEREIN, CLEARLY SHOW THAT RESPONDENTS ARE JUSTIFIED UNDER SECTION 1 IN
TREATING THE EX-BARGE TRAFFIC THE SAME AS LOCAL OR EX-TRUCK TRAFFIC AND
THAT THE PROPOSED SCHEDULES CANNOT BE CONDEMNED AS UNLAWFUL UNDER

"ON RECONSIDERATION OF THE RECORD IN THE LIGHT OF THE PETITIONS AND
REPLIES THERETO AND OUR PRIOR DECISIONS, WE FIND THAT: 

"(1)  THE PROPORTIONAL RATES HERE UNDER CONSIDERATION WERE LEGALLY
APPLICABLE ON THE EX-BARGE TRAFFIC WHERE THE SO-CALLED POLICING
PROVISIONS WERE STRICTLY COMPLIED WITH. 

"(2)  THE PROPOSED SCHEDULES ARE SHOWN TO BE JUST AND REASONABLE AND
ARE NOT SHOWN TO BE OTHERWISE UNLAWFUL." 

ACCORDINGLY THE COMMISSION ORDERED: 

"THAT THE ORDER HERETOFORE ENTERED IN THIS PROCEEDING, SUSPENDING THE
OPERATION OF THE SCHEDULES ENUMERATED AND DESCRIBED IN SAID ORDER, BE,
AND IT IS HEREBY, VACATED AND SET ASIDE AS OF DECEMBER 22, 1941, AND
THAT THIS PROCEEDING BE DISCONTINUED." 

AFTER THE COMMISSION HAD ANNOUNCED ITS DECISION AND ON DECEMBER 12,
1941, APPELLANT MECHLING BARGE LINES SOUGHT TO INTERVENE ON THE GROUND
THAT SINCE THE RECORD HAD BEEN CLOSED IT HAD BECOME A REGULAR COMMON
CARRIER BY WATER OF GRAIN BY BARGE TO CHICAGO AND OTHER RATEBREAK
POINTS, AND WAS ENTITLED TO THE PROTECTION AFFORDED TO SUCH CARRIERS BY
THE TRANSPORTATION ACT OF 1940.  IT URGED THAT THE DECISION BE SET
ASIDE AND, IF IT SHOULD BE THOUGHT NECESSARY TO THIS END, THAT IT BE
GIVEN AN OPPORTUNITY TO INTRODUCE EVIDENCE.  THIS WAS THE FIRST OFFER
TO ASSIST THE COMMISSION IN ANY WAY IN THE ESTABLISHMENT OF
PROPORTIONAL RATES FIXED WITH REFERENCE TO THE EX-BARGE GRAIN.  NO
SPECIFIC SUGGESTION WAS MADE, HOWEVER, AS TO THE AMOUNT OF SUCH RATES
OR AS TO THE EVIDENCE WHICH WOULD BE INTRODUCED IN SUPPORT.  THIS
PETITION WAS DENIED BY THE COMMISSION ON JANUARY 21, 1942. 

ON JANUARY 16, 1942, THE INLAND WATERWAYS CORPORATION HAD FILED ITS
COMPLAINT IN THE UNITED STATES DISTRICT COURT SEEKING AN INJUNCTION
AGAINST THE ENFORCEMENT OF THE COMMISSION'S ORDER.  VARIOUS OTHER
PARTIES WERE ALLOWED TO INTERVENE IN THE CASE AS PLAINTIFFS AND
DEFENDANTS.  THE ATTORNEY GENERAL DID NOT PARTICIPATE, GIVING AS HIS
REASON THE EXISTENCE OF A CONFLICT IN LITIGATION BETWEEN COORDINATE
AGENCIES OF THE GOVERNMENT, THE AGRICULTURAL ADJUSTMENT ADMINISTRATION
AND THE INTERSTATE COMMERCE COMMISSION.  THE OPINION OF THE SPECIALLY
CONSTITUTED THREE-JUDGE DISTRICT COURT WAS ANNOUNCED ON APRIL 16,
1942.  FN11  IT STATED THAT "THE INTERSTATE COMMERCE COMMISSION TOOK NO
EVIDENCE ADDRESSED TO THE ISSUE WHETHER THE RATE PROPOSAL IN QUESTION
IS IN VIOLATION OF SECTION 3(4) OF THE INTERSTATE COMMERCE ACT, AS
AMENDED BY THE TRANSPORTATION ACT OF 1940, OR CONTRARY TO THE NATIONAL
TRANSPORTATION POLICY ENACTED BY THE LAST SAID ACT; BUT THE INTERSTATE
COMMERCE COMMISSION PASSED UPON THE LEGALITY OF SAID RATE PROPOSAL UPON
EVIDENCE TAKEN WITHOUT REFERENCE TO SUCH ISSUES AND BEFORE THEY
EXISTED."  IT CONCLUDED THAT THE ORDER WAS OF A "CHARACTER WHICH THIS
COURT IS AUTHORIZED TO ENJOIN AND SET ASIDE," AND SHOULD BE SET ASIDE
ON THE GROUND THAT IT "DISCRIMINATES AGAINST WATER COMPETITION BY THE
USERS OF BARGES."  IT DECREED THAT THE COMMISSION'S ORDER VACATING THE
ALREADY-EXPIRED SUSPENSION OF THE PROPOSED SCHEDULES AND DISCONTINUING
THE PROCEEDINGS BE ANNULLED AND THAT THE RAILROADS BE "PERMANENTLY
ENJOINED  ...  FROM ACTING UPON THE AUTHORITY OF THE AFORESAID ORDER." 

THE CASE IS HERE ON APPEAL.  FN12 

IN THE PROCEEDINGS BEFORE THE COMMISSION THE PROTESTANTS PITCHED
THEIR CASE UPON TWO PROPOSITIONS:  (1) TO DENY THE EX-BARGE GRAIN THE
BENEFIT OF PROPORTIONALS SOUGHT TO BE CANCELLED WAS NECESSARILY
UNLAWFUL SINCE THE PHYSICAL CARRIAGE BEYOND CHICAGO WAS SUBSTANTIALLY
THE SAME, NO MATTER WHERE THE GRAIN ORIGINATED; (2) SINCE DENIAL OF
THAT BENEFIT WAS NECESSARILY UNLAWFUL, THE COMMISSION WAS BOUND TO
MAINTAIN THE STATUS QUO BY CANCELLING THE PROPOSED SCHEDULES AND THUS
PERPETUATING THE EXISTING RATE STRUCTURE, WHATEVER MIGHT BE ITS
DEFECTS. 

AS THE COMMISSION CORRECTLY OBSERVED WITH REFERENCE TO THE FIRST
CONTENTION, "TO ADOPT PROTESTANTS' PREMISE WOULD MEAN THAT ALL
PROPORTIONAL RATES LOWER THAN LOCAL RATES AND DIFFERING FROM EACH OTHER
ACCORDING TO THE ORIGIN OF THE COMMODITY WOULD HAVE TO BE CONDEMNED." 

PROPORTIONAL RATES SO DIFFERING AND LOWER THAN LOCAL RATES FOR LIKE
OUTBOUND TRANSPORTATION HAVE A LONG HISTORY, ANTEDATING THE INTERSTATE
COMMERCE ACT ITSELF.  LONG HAULS HAVE GENERALLY BEEN THOUGHT ENTITLED
TO MOVE AT A RATE LESS THAN THE SUM OF THE RATES FOR LOCAL OR SHORT
HAULS BETWEEN INTERMEDIATE POINTS.  THE PRACTICE OF ROUTING COMMODITIES
SUCH AS GRAIN TO CENTERS FOR MARKETING AND PROCESSING HAS BEEN
WIDESPREAD AND OFTEN A NECESSARY FEATURE OF THE PROCESS OF
DISTRIBUTION.  IN MANY INSTANCES STOPOVERS FOR MARKETING AND PROCESSING
HAVE NOT BEEN CONSIDERED AS DISRUPTING THE CONTINUITY OF TRANSPORTATION
TO MORE DISTANT POINTS, AND CONSEQUENTLY THE GRAIN HAS BEEN ALLOWED TO
MOVE ON AT A RATE LOWER THAN THE OUTBOUND RATE ON GRAIN ORIGINATING
LOCALLY AND NOT FROM A DISTANCE.  FN13  TO GET THE OUTBOUND BUSINESS
COMPETING CARRIERS FREQUENTLY WOULD OFFER RATES SIMILARLY COMPUTED. 
FN14  PROPORTIONAL RATES ESTABLISHED ON THIS REASONING  FN15  HAVE
BECOME DEEPLY EMBEDDED IN THE TRANSPORTATION SYSTEM OF THE COUNTRY, AND
HAVE BEEN APPROVED BY THE INTERSTATE COMMERCE COMMISSION,  FN16  BY THE
FEDERAL COURTS, THIS ONE INCLUDED N17; AND, SO FAR AS IT HAS SPOKEN ON
THE SUBJECT, BY CONGRESS ITSELF.  FN18  WE SEE NO REASON FOR
REPUDIATING THEM NOW. 

HAVING POINTED OUT THE ERROR OF THE PROTESTANTS' BASIC CONTENTION,
THE COMMISSION STATED THAT: "IT FOLLOWS THAT THE PROTESTANTS'
ALLEGATIONS CANNOT BE SUSTAINED IN THIS PROCEEDING, ALTHOUGH IN A
PROPER PROCEEDING WE MIGHT PRESCRIBE PROPORTIONAL RATES ON THE EX-BARGE
TRAFFIC LOWER THAN LOCAL RATES OR JOINT BARGE-RAIL RATES LOWER THAN THE
COMBINATIONS."  PENDING THE COMMENCEMENT OF SUCH A PROCEEDING IT
ORDERED THE VACATION OF THE ALREADY-EXPIRED ORDER OF SUSPENSION AND
ORDERED THE DISCONTINUANCE OF THE INSTANT PROCEEDINGS. 

DESPITE THIS STATEMENT, MUCH OF THE ARGUMENT IN THIS COURT HAS
PROCEEDED UPON THE ASSUMPTION THAT THE COMMISSION'S ORDER RESULTED FROM
ITS BELIEF AND FINDINGS THAT THE DISCREPANCIES BETWEEN THE PROPORTIONAL
RATES NOT CANCELLED IN THE PROPOSED SCHEDULES AND THE LOCAL RATES AS
APPLIED TO EX-BARGE GRAIN WERE IN ALL RESPECTS LAWFUL, AND THAT IT
ACTUALLY APPROVED OR PRESCRIBED A RATE STRUCTURE CONTAINING SUCH
DISCREPANCIES.  WE DO NOT SO UNDERSTAND THE ACTION OF THE COMMISSION. 

TRUE, THE COMMISSION STATED THAT THE RAILROADS "ARE JUSTIFIED UNDER
TRUCK TRAFFIC," AND FOUND THAT "THE PROPOSED SCHEDULES ARE SHOWN TO BE
JUST AND REASONABLE."  BUT THIS DOES NOT CONSTITUTE A FINDING THAT THE
RATES WERE LAWFUL; THEY "MAY LIE WITHIN THE ZONE OF REASONABLENESS AND
YET RESULT IN UNDUE PREJUDICE" OR OTHERWISE VIOLATE THE ACT.  FN19  THE
COMMISSION ALSO STATED THAT THE FACTS OF RECORD SHOW THAT "THE PROPOSED
SCHEDULES CANNOT BE CONDEMNED AS UNLAWFUL UNDER SECTIONS 2 AND 3 OF THE
ACT."  FN20 BUT THIS STATEMENT FOLLOWED IMMEDIATELY UPON THE
COMMISSION'S STATEMENT THAT FROM ITS CONCLUSION THAT PROTESTANTS' CLAIM
AS A MATTER OF RIGHT TO THE EXISTING PROPORTIONALS WAS ERRONEOUS, "IT
FOLLOWS THAT THE PROTESTANTS' ALLEGATIONS CANNOT BE SUSTAINED IN THIS
PROCEEDING, ALTHOUGH IN A PROPER PROCEEDING WE MIGHT PRESCRIBE
PROPORTIONAL RATES ON THE EX-BARGE TRAFFIC LOWER THAN LOCAL RATES OR
JOINT BARGE-RAIL RATES LOWER THAN THE COMBINATIONS."  READ IN THE
CONTEXT, WE THINK IT MEANT ONLY THAT THE PROPOSED SCHEDULES COULD NOT
BE STRUCK DOWN UPON THE ERRONEOUS VIEW ADVANCED BY THE PROTESTANTS. 
THE FINDING OF THE COMMISSION THAT THE PROPOSED SCHEDULES "ARE NOT
SHOWN TO BE OTHERWISE UNLAWFUL" IS, WE THINK, TO BE SIMILARLY READ. 
THIS FORM OF FINDING HAS BEEN HELD BY THE COMMISSION NOT TO CONSTITUTE
AN APPROVAL OR A PRESCRIPTION OF THE RATES UNDER SUSPENSION.  FN21
SINCE THE COMMISSION REFUSED TO APPROVE OR PRESCRIBE THEM, THEY STAND
ONLY AS CARRIER-MADE RATES WHICH, UNDER THE COMMISSION'S DECISIONS,
LEAVES THEM OPEN TO POSSIBLE RECOVERY OF REPARATIONS.  FN22  LIKE THE
COMMISSION, WE ALSO REFRAIN FROM APPROVING OR PRESCRIBING THEM. 

THE CASE HAD BEEN DEVELOPED BEFORE THE COMMISSION UPON THE THEORY
THAT THE PROPOSED SCHEDULES MUST STAND OR FALL IN THEIR ENTIRETY. 
THERE HAS BEEN NO SUGGESTION, NOR IS IT APPARENT, THAT IT WOULD HAVE
BEEN FEASIBLE FOR THE COMMISSION TO PICK AND CHOOSE AMONG THE ITEMS IN
THE EXISTING AND PROPOSED SCHEDULES. 

TO PERPETUATE THE EXISTING RATE STRUCTURE BY SUSTAINING THE DISTRICT
COURT'S INJUNCTION WOULD ENTAIL NUMEROUS AND SERIOUS VIOLATIONS OF SEC.
4(1).  FN23  UNDER THAT RATE STRUCTURE, EX-BARGE GRAIN MOVED FROM
ILLINOIS RIVER POINTS TO BALTIMORE, NEW YORK AND BOSTON AT COMBINATION
RATES LOWER THAN THE LOCAL RATES FOR DOMESTIC GRAIN FROM ALL POINTS IN
CENTRAL TERRITORY WEST OF A LINE RUNNING SOUTH FROM BAY CITY, MICHIGAN,
THROUGH FORT WAYNE AND INDIANAPOLIS, INDIANA.  SO ALSO DID THE EX-BARGE
GRAIN MOVE OUT AT COMBINATION RATES LOWER THAN LOCAL EXPORT RATES ON
GRAIN FROM ALL POINTS IN CENTRAL TERRITORY WEST OF A LINE RUNNING
SOUTHWARDLY AND SOUTH ALONG THE INDIANA-OHIO LINE; AND LOWER THAN THE
LOCAL EXPORT RATES ON CORN FROM ALL POINTS IN CENTRAL TERRITORY WEST OF
A LINE BETWEEN PAYNESVILLE AND EAST LIVERPOOL, OHIO, NEAR THE
PENNSYLVANIA LINE.  UNLIKE THE BARGE-RAIL RATE, THE ALL-RAIL RATES ARE,
AS THE COMMISSION HAS FOUND, IN STRICT CONFORMITY WITH SEC. 4(1). 
CONGRESS BY THE TRANSPORTATION ACT OF 1940 AMENDED SEC. 4(1), BUT
NOWHERE IN THE ACT OR IN ITS LEGISLATIVE HISTORY IS THERE ANY
SUGGESTION THAT FROM THE MERE FACT THAT GRAIN MOVING FROM BEYOND
CHICAGO TO NEW YORK TRAVELS BY BARGE FOR THE 60-MILE LEG OF ITS JOURNEY
TO CHICAGO - LESS THAN ONE PERCENT OF THE TOTAL HAUL - IT SHALL AS
MATTER OF LAW BE ENTITLED TO A RATE FROM BEYOND CHICAGO TO THE SEABOARD
LESS THAN THAT FROM THE PENNSYLVANIA LINE TO THE SEABOARD.  FN24 

APPELLEES MAKE NO BETTER SHOWING WITH RESPECT TO THE EFFECT OF THE
INJUNCTION ON THE RATE STRUCTURE WEST OF CHICAGO.  TO SUSTAIN THE
INJUNCTION WOULD REQUIRE A HOLDING THAT GRAIN ORIGINATING 60 MILES FROM
CHICAGO MUST AS MATTER OF LAW BE GIVEN THE BENEFIT OF PROPORTIONALS
FIXED WITH REFERENCE TO GRAIN FROM THE NORTHWEST TERRITORY, EMBRACING
POINTS IN CANADA AND AS FAR WEST IN THE UNITED STATES AS WASHINGTON AND
THE DAKOTAS.  IN ADDITION TO THE DISPARITY IN DISTANCES, THERE IS THE
FURTHER FACT THAT THE GRAIN FROM THE NORTHWEST IS PREDOMINATELY WHEAT,
WHILE THAT FROM THE TERRITORY SERVED BY THE BARGE LINES IS
PREDOMINATELY CORN FROM ILLINOIS.  NOTHING IN THE INTERSTATE COMMERCE
ACT AS AMENDED BY THE TRANSPORTATION ACT OF 1940, OR IN THE STATEMENTS
OF EVEN THE MOST ARDENT CONGRESSIONAL CHAMPIONS OF WATER
TRANSPORTATION, AFFORDS THE SLIGHTEST WARRANT FOR A DECISION THAT THE
COMMISSION MUST TREAT AS LEGALLY IDENTICAL SUCH WIDELY DISPARATE
FACTUAL SITUATIONS. 

FINALLY IT IS CLAIMED THAT THE COMMISSION WAS OBLIGED TO CONTINUE THE
SEC. 15(7) PROCEEDINGS AND ESTABLISH SPECIAL PROPORTIONALS FOR THE
BARGE LINES UNDER SEC. 6(11) OF THE ACT.  FN25  THIS DUTY IS CLAIMED BY
APPELLEES TO DERIVE FROM THE PROVISION OF SEC. 15(7) THAT AFTER
SUSPENSION AND HEARING OF A PROPOSED RATE CHANGE THE COMMISSION "MAY
MAKE SUCH ORDER WITH REFERENCE THERETO AS WOULD BE PROPER IN A
PROCEEDING INITIATED AFTER IT HAD BECOME EFFECTIVE."  THE CONSTRUCTION
CONTENDED FOR WOULD HAVE THE EFFECT EITHER OF IMPOSING A PRACTICALLY
IMPOSSIBLE BURDEN UPON THE COMMISSION OR OF MAKING RESORT TO THE
COMMISSION'S POWERS UNDER SEC. 15(7) SO RARE AS TO MAKE SUCH POWERS OF
LITTLE PRACTICAL SIGNIFICANCE.  SUSPENSION CASES ARE VERY NUMEROUS, AND
IN MANY OF THEM THE CONSTRUCTION CONTENDED FOR WOULD REQUIRE THE
COMMISSION TO "READJUST THE ENTIRE RATE STRUCTURE OF AN IMPORTANT
RATE STRUCTURE HERE INVOLVED.  TO REQUIRE THE PRESENT PROCEEDINGS TO BE
CONTINUED UNTIL PROPORTIONALS CAN BE SET WITH REFERENCE TO THE BARGE
TRANSPORTATION WOULD HARDLY BE WITHIN THE INTENTION OF CONGRESS, WHICH
IN TERMS MADE THE COMMISSION'S POWER DISCRETIONARY, AND LEGISLATED UPON
THE ASSUMPTION, FORMED AFTER MUCH EXPERIMENTATION WITH THE PERIOD OF
SUSPENSION,  FN27  THAT SUSPENSION CASES COULD NORMALLY BE CARRIED TO
COMPLETION WITHIN SEVEN MONTHS AND TO THAT END COMMANDED IN SEC. 15(7)
THAT "THE COMMISSION SHALL GIVE TO THE HEARING AND DECISION OF SUCH
QUESTIONS PREFERENCE OVER ALL OTHER QUESTIONS PENDING BEFORE IT AND
DECIDE THE SAME AS SPEEDILY AS POSSIBLE." 

THE RECORD HAD BEEN CLOSED ON JANUARY 26, 1940, WHEN THE LAST
TESTIMONY WAS HEARD.  THE TRANSPORTATION ACT OF 1940 WAS NOT ENACTED
UNTIL SEPTEMBER 18.  AT THE TIME THE EVIDENCE WAS TAKEN IT WAS NOT
CLEAR WHETHER SOME OF THE BARGE LINES OPERATING IN THE WATERWAY WERE
COMMON CARRIERS, AND NONE HAD OBTAINED CERTIFICATES OF CONVENIENCE AND
NECESSITY FROM THE COMMISSION AS NOW REQUIRED.  THEY HAD NOT FILED
REPORTS WITH THE COMMISSION FROM WHICH THE RESULTS OF THEIR OWN
OPERATIONS MIGHT BE JUDGED, AND THEY HAD NOT FILED TARIFFS SHOWING
THEIR RATES.  ALL OF THIS HAS SINCE CHANGED.  THE APPLICABLE LAW HAS
CHANGED.  THE ISSUES RAISED BY THE POSITION OF THE PARTIES DID NOT CALL
FOR A FIXING OF NEW COMBINATION RATES, FOR IT WAS CONTENDED BARGE GRAIN
WAS ENTITLED TO THE EXISTING PROPORTIONALS. 

THE POLICY PROVISIONS OF THE TRANSPORTATION ACT OF 1940, AS WELL AS
THE SPECIFIC STATUTORY PROVISIONS, PROVIDE ONLY STANDARDS OF
CONSIDERABLE GENERALITY AND SOME OVERLAPPING.  IT REQUIRES
ADMINISTRATION TO "RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH" - RAIL, WATER, AND MOTOR TRANSPORT.  IT ALSO SEEKS "SOUND
ECONOMIC CONDITIONS" FOR ALL KINDS OF TRANSPORTATION.  FN28 FOR MORE
THAN A YEAR AFTER THE ENACTMENT OF THIS ACT, AND UNTIL AFTER THE
COMMISSION HAD FINALLY DISPOSED OF THE CASE, APPELLEES SHOWED NO
DISPOSITION TO MAKE PROPOSALS OR TO DEVELOP A RECORD UPON THE BASIS OF
WHICH THE COMMISSION MIGHT PRESCRIBE RATES IN VIEW OF THEIR PARTICULAR
CIRCUMSTANCES AND UNDER THE PROVISIONS OF THE ACT DESIGNED WITH
REFERENCE TO THEM.  INSTEAD THEY RELIED UPON THE ERRONEOUS VIEW THAT
THEY WERE BY LAW ENTITLED TO THE FORTUITOUS AND IN MANY RESPECTS
UNLAWFUL BENEFITS OF THE EXISTING RATE STRUCTURE.  THEIR NEARLY FOUR
YEARS OF LITIGATION HAVE NOT, HOWEVER, BEEN IN VAIN, FOR DURING ALL
THIS TIME THEY HAVE MANAGED TO KEEP THE PROPOSED SCHEDULES IN ABEYANCE
FIRST BY COMPULSORY SUSPENSION FOR THE ALLOWABLE PERIOD OF 7 MONTHS AT
THE HANDS OF THE COMMISSION, THEN BY THE RAILROADS' VOLUNTARY ACT AT
THE EXPIRATION OF THAT PERIOD, AND FINALLY BY THE COMPULSION OF THE
DISTRICT COURT'S INJUNCTION. 

OUR FUNCTION DOES NOT PERMIT US EITHER TO PRESCRIBE OR APPROVE RATES,
AND OUR DECISION CARRIES NO IMPLICATION OF APPROVAL OF ANY RATES HERE
INVOLVED.  NOR ARE WE AT LIBERTY TO PRESCRIBE GENERAL ATTITUDES THE
COMMISSION MUST ADOPT TOWARDS THE EXERCISE OF DISCRETION LEFT TO IT
RATHER THAN TO COURTS.  WE DECIDE ONLY WHETHER THE COMMISSION HAS ACTED
WITHIN THE POWER DELEGATED TO IT BY LAW.  WE ARE OF OPINION THAT IT HAS
AND THAT THE DECISION OF THE COURT BELOW MUST BE REVERSED. 

FN1  BALTIMORE & OHIO RAILROAD COMPANY, NEW YORK CENTRAL RAILROAD
COMPANY, NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, PENNSYLVANIA
RAILROAD COMPANY, ERIE RAILROAD COMPANY, AND THE CHESAPEAKE & OHIO
RAILWAY COMPANY. 

FN2  SEC. 4.  "(1)  IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER
SUBJECT TO THIS PART OR PART III TO CHARGE OR RECEIVE ANY GREATER
COMPENSATION IN THE AGGREGATE FOR THE TRANSPORTATION OF PASSENGERS, OR
OF LIKE KIND OF PROPERTY, FOR A SHORTER THAN FOR A LONGER DISTANCE OVER
THE SAME LINE OR ROUTE IN THE SAME DIRECTION, THE SHORTER BEING
INCLUDED WITHIN THE LONGER DISTANCE, OR TO CHARGE ANY GREATER
COMPENSATION AS A THROUGH RATE THAN THE AGGREGATE OF THE INTERMEDIATE
RATES SUBJECT TO THE PROVISIONS OF THIS PART OR PART III, BUT THIS
SHALL NOT BE CONSTRUED AS AUTHORIZING ANY COMMON CARRIER WITHIN THE
TERMS OF THIS PART OR PART III TO CHARGE OR RECEIVE AS GREAT
COMPENSATION FOR A SHORTER AS FOR A LONGER DISTANCE:  PROVIDED, THAT
UPON APPLICATION TO THE COMMISSION SUCH COMMON CARRIER MAY IN SPECIAL
CASES, AFTER INVESTIGATION, BE AUTHORIZED BY THE COMMISSION TO CHARGE
LESS FOR LONGER THAN FOR SHORTER DISTANCES FOR THE TRANSPORTATION OF
PASSENGERS OR PROPERTY; AND THE COMMISSION MAY FROM TIME TO TIME
PRESCRIBE THE EXTENT TO WHICH SUCH DESIGNATED COMMON CARRIER MAY BE
RELIEVED FROM THE OPERATION OF THIS SECTION, BUT IN EXERCISING THE
AUTHORITY CONFERRED UPON IT IN THIS PROVISO THE COMMISSION SHALL NOT
PERMIT THE ESTABLISHMENT OF ANY CHARGE TO OR FROM THE MORE DISTANT
POINT THAT IS NOT REASONABLY COMPENSATORY FOR THE SERVICE PERFORMED;
AND NO SUCH AUTHORIZATION SHALL BE GRANTED ON ACCOUNT OF MERELY
POTENTIAL WATER COMPETITION NOT ACTUALLY IN EXISTENCE:  AND PROVIDED
FURTHER, THAT TARIFFS PROPOSING RATES SUBJECT TO THE PROVISIONS OF THIS
PARAGRAPH MAY BE FILED WHEN APPLICATION IS MADE TO THE COMMISSION UNDER
THE PROVISIONS HEREOF, AND IN THE EVENT SUCH APPLICATION IS APPROVED,
THE COMMISSION SHALL PERMIT SUCH TARIFFS TO BECOME EFFECTIVE UPON ONE
DAY'S NOTICE."  54 STAT. 904, 49 U.S.C. SEC. 4(1). 

FN3  44 STAT. 1447 AS AMENDED BY 54 STAT. 912, 49 U.S.C. SEC. 15(7),
READING: 

"WHENEVER THERE SHALL BE FILED WITH THE COMMISSION ANY SCHEDULE
STATING A NEW INDIVIDUAL OR JOINT RATE, FARE, OR CHARGE, OR ANY NEW
INDIVIDUAL OR JOINT CLASSIFICATION, OR ANY NEW INDIVIDUAL OR JOINT
REGULATION OR PRACTICE AFFECTING ANY RATE, FARE, OR CHARGE, THE
COMMISSION SHALL HAVE, AND IT IS HEREBY GIVEN, AUTHORITY, EITHER UPON
COMPLAINT OR UPON ITS OWN INITIATIVE WITHOUT COMPLAINT, AT ONCE, AND IF
IT SO ORDERS WITHOUT ANSWER OR OTHER FORMAL PLEADING BY THE INTERESTED
CARRIER OR CARRIERS, BUT UPON REASONABLE NOTICE, TO ENTER UPON A
HEARING CONCERNING THE LAWFULNESS OF SUCH RATE, FARE, CHARGE,
CLASSIFICATION, REGULATION, OR PRACTICE; AND PENDING SUCH HEARING AND
THE DECISION THEREON THE COMMISSION, UPON FILING WITH SUCH SCHEDULE AND
DELIVERING TO THE CARRIER OR CARRIERS AFFECTED THEREBY A STATEMENT IN
WRITING OF ITS REASONS FOR SUCH SUSPENSION, MAY FROM TIME TO TIME
SUSPEND THE OPERATION OF SUCH SCHEDULE AND DEFER THE USE OF SUCH RATE,
FARE, CHARGE, CLASSIFICATION, REGULATION, OR PRACTICE, BUT NOT FOR A
LONGER PERIOD THAN SEVEN MONTHS BEYOND THE TIME WHEN IT WOULD OTHERWISE
GO INTO EFFECT; AND AFTER FULL HEARING, WHETHER COMPLETED BEFORE OR
AFTER THE RATE, FARE, CHARGE, CLASSIFICATION, REGULATION, OR PRACTICE
GOES INTO EFFECT, THE COMMISSION MAY MAKE SUCH ORDER WITH REFERENCE
THERETO AS WOULD BE PROPER IN A PROCEEDING INITIATED AFTER IT HAD
BECOME EFFECTIVE.  IF THE PROCEEDING HAS NOT BEEN CONCLUDED AND AN
ORDER MADE WITHIN THE PERIOD OF SUSPENSION, THE PROPOSED CHANGE OF
RATE, FARE, CHARGE, CLASSIFICATION, REGULATION, OR PRACTICE SHALL GO
INTO EFFECT AT THE END OF SUCH PERIOD; BUT IN CASE OF A PROPOSED
INCREASED RATE OR CHARGE FOR OR IN RESPECT TO THE TRANSPORTATION OF
PROPERTY, THE COMMISSION MAY BY ORDER REQUIRE THE INTERESTED CARRIER OR
CARRIERS TO KEEP ACCURATE ACCOUNT IN DETAIL OF ALL AMOUNTS RECEIVED BY
REASON OF SUCH INCREASE, SPECIFYING BY WHOM AND IN WHOSE BEHALF SUCH
AMOUNTS ARE PAID, AND UPON COMPLETION OF THE HEARING AND DECISION MAY
BY FURTHER ORDER REQUIRE THE INTERESTED CARRIER OR CARRIERS TO REFUND,
WITH INTEREST, TO THE PERSONS IN WHOSE BEHALF SUCH AMOUNTS WERE PAID,
SUCH PORTION OF SUCH INCREASED RATES OR CHARGES AS BY ITS DECISION
SHALL BE FOUND NOT JUSTIFIED.  AT ANY HEARING INVOLVING A CHANGE IN A
RATE, FARE, CHARGE, OR CLASSIFICATION, OR IN A RULE, REGULATION, OR
PRACTICE, AFTER SEPTEMBER 18, 1940, THE BURDEN OF PROOF SHALL BE UPON
THE CARRIER TO SHOW THAT THE PROPOSED CHANGED RATE, FARE, CHARGE,
CLASSIFICATION, RULE, REGULATION, OR PRACTICE IS JUST AND REASONABLE,
AND THE COMMISSION SHALL GIVE TO THE HEARING AND DECISION OF SUCH
QUESTIONS PREFERENCE OVER ALL OTHER QUESTIONS PENDING BEFORE IT AND
DECIDE THE SAME AS SPEEDILY AS POSSIBLE." 

FN4  THE PROVISIONS OF THE INTERSTATE COMMERCE ACT PARTICULARLY
RELIED UPON BY APPELLEES WHICH WERE AMENDED OR ADDED BY THE
TRANSPORTATION ACT OF 1940 READ AS FOLLOWS: 

"IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF
THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES
OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY."  54 STAT. 899. 

"SEC. 3(1).  IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO
THE PROVISIONS OF THIS PART TO MAKE, GIVE, OR CAUSE ANY UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON, COMPANY,
FIRM, CORPORATION, ASSOCIATION, LOCALITY, PORT, PORT DISTRICT, GATEWAY,
TRANSIT POINT, REGION, DISTRICT, TERRITORY, OR ANY PARTICULAR
DESCRIPTION OF TRAFFIC, IN ANY RESPECT WHATSOEVER; OR TO SUBJECT ANY
PARTICULAR PERSON, COMPANY, FIRM, CORPORATION, ASSOCIATION, LOCALITY,
PORT, PORT DISTRICT, GATEWAY, TRANSIT POINT, REGION, DISTRICT,
TERRITORY, OR ANY PARTICULAR DESCRIPTION OF TRAFFIC TO ANY UNDUE OR
UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER:
PROVIDED, HOWEVER, THAT THIS PARAGRAPH SHALL NOT BE CONSTRUED TO APPLY
TO DISCRIMINATION, PREJUDICE, OR DISADVANTAGE TO THE TRAFFIC OF ANY
OTHER CARRIER OF WHATEVER DESCRIPTION."  54 STAT. 902, 49 U.S.C. SEC.
3(1). 

"SEC. 3(4).  ALL CARRIERS SUBJECT TO THE PROVISIONS OF THIS PART
SHALL, ACCORDING TO THEIR RESPECTIVE POWERS, AFFORD ALL REASONABLE,
PROPER, AND EQUAL FACILITIES FOR THE INTERCHANGE OF TRAFFIC BETWEEN
THEIR RESPECTIVE LINES AND CONNECTING LINES, AND FOR THE RECEIVING,
FORWARDING, AND DELIVERING OF PASSENGERS OR PROPERTY TO AND FROM
CONNECTING LINES; AND SHALL NOT DISCRIMINATE IN THEIR RATES, FARES, AND
CHARGES BETWEEN CONNECTING LINES, OR UNDULY PREJUDICE ANY CONNECTING
LINE IN THE DISTRIBUTION OF TRAFFIC THAT IS NOT SPECIFICALLY ROUTED BY
THE SHIPPER.  AS USED IN THIS PARAGRAPH THE TERM 'CONNECTING LINE'
MEANS THE CONNECTING LINE OF ANY CARRIER SUBJECT TO THE PROVISIONS OF
THIS PART OR ANY COMMON CARRIER BY WATER SUBJECT TO PART III."  54
STAT. 903, 49 U.S.C. SEC. 3(4). 

"PART III, SEC. 305(C)  ... DIFFERENCES IN THE CLASSIFICATIONS,
RATES, FARES, CHARGES, RULES, REGULATIONS, AND PRACTICES OF A WATER
CARRIER IN RESPECT OF WATER TRANSPORTATION FROM THOSE IN EFFECT BY A
RAIL CARRIER WITH RESPECT TO RAIL TRANSPORTATION SHALL NOT BE DEEMED TO
CONSTITUTE UNJUST DISCRIMINATION, PREJUDICE, OR DISADVANTAGE, OR AN
UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICE, WITHIN THE MEANING OF ANY
PROVISION OF THIS ACT."  54 STAT. 935, 49 U.S.C. SEC. 905(C). 

FN5  246 I.C.C. 353. 

FN6  SEE FOOTNOTE 4, SUPRA, FOR THE TEXT OF THIS PROVISION. 

FN7  PETITIONS FOR RECONSIDERATION WERE ALSO FILED BY "CHICAGO
PROTESTANTS," OPERATING ELEVATORS AND DEALING IN GRAIN AT CHICAGO;
ILLINOIS AGRICULTURAL ASSOCIATION, REPRESENTING SHIPPERS LOCATED ON THE
ILLINOIS WATERWAYS; FINNEGAN WAREHOUSE COMPANY, OPERATING AN ELEVATOR
ON THE WATERWAYS; AND THE UNITED STATES DEPARTMENT OF AGRICULTURE. 
THESE PETITIONS ARE NOT INCORPORATED IN THE RECORD, BUT IT APPEARS THAT
THE ACTION OF DIVISION 2 WAS ASSAILED BY THESE PROTESTANTS UNDER SEC.
3(1), SET OUT IN FOOTNOTE 4. 

FN8  248 I.C.C. 307. 

FN9  FROM THE REPORT OF THE COMMISSION IT APPEARS THAT THE INLAND
WATERWAYS CORPORATION WAS THE ONLY ONE ASKING FURTHER HEARINGS.  IT
STATED THAT FURTHER HEARINGS COULD BE USEFUL ONLY TO ESTABLISH THE
INFORMATION OF WHICH THE COMMISSION TOOK OFFICIAL NOTICE, AND SUGGESTED
THAT THE COMMISSION AVOID THE NECESSITY FOR THEM BY TAKING SUCH
NOTICE. 

FN10  EVEN UNDER THE PROPOSED SCHEDULES, THE COMBINATION BARGE-RAIL
RATES ARE IN MANY INSTANCES LOWER THAN THE ALL-RAIL RATES.  MUCH GRAIN
THAT ARRIVES AT CHICAGO IS CONSUMED LOCALLY OR IS SHIPPED OUT BY LAKE. 
IN THE CASE OF GRAIN ARRIVING BY RAIL, SUCH DISPOSITION OFTEN LEAVES
THE ELEVATOR WITH A "TRANSIT BALANCE" AS A RESULT OF WHICH EX-BARGE
GRAIN MAY MOVE EASTWARD BY RAIL ON THE PROPORTIONAL RATES. 

THE DISTRICT COURT APPARENTLY DID NOT FIND THAT THERE WAS NO EVIDENCE
TO SUPPORT THE COMMISSION'S FINDING THAT IT WAS THE ELEVATOR OPERATOR,
RATHER THAN THE FARMER, WHO IS AFFECTED BY THE PROPOSED SCHEDULES.  IN
ANY EVENT, THE FOREGOING WOULD SEEM SUFFICIENT SUPPORT FOR THE
COMMISSION'S FINDING, AND WE DO NOT SUPPOSE THAT THE FINDING MAKES ANY
DIFFERENCE IN THE LAW TO BE APPLIED. 

FN11  44 F.SUPP.  368. 

FN12  URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, 38 STAT. 208, 220,
28 U.S.C. SECS. 47, 47A; SEC. 238 OF THE JUDICIAL CODE AS AMENDED, 28
U.S.C. SEC. 345. 

FN13  E.G., UNLAWFUL RATES IN TRANS.  COTTON BY K.C., M. & B.R.R.
CO., 8 I.C.C. 121; CENTRAL YELLOW PINE ASSN. V. V., S. & P.R. CO., 10
I.C.C. 193. 

FN14  BERRY, A STUDY OF PROPORTIONAL RATES, 10 I.C.C. PRACTITIONER'S
JOURNAL 545, 602. 

FN15  FOR THE VARIETY OF PRACTICES SO SUSTAINED, SEE LOCKLIN,
ECONOMICS OF TRANSPORTATION (1935), PP. 122-123, 629-631. 

FN16  SEE THE DISSENTING OPINION OF CHAIRMAN EASTMAN IN THE PRESENT
CASE.  OTHER CASES ARE COLLECTED IN BERRY, SUPRA, FOOTNOTE 14. 

FN17  ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 279 U.S. 768;
GREAT NORTHERN RY. CO. V. SULLIVAN, 294 U.S. 458; CF. BOARD OF TRADE V.
UNITED STATES, 314 U.S. 534. 

FN18  SEC. 11 OF THE PANAMA CANAL ACT, 1912, 37 STAT. 566, NOW 49
U.S.C. SEC. 6(11), SET OUT IN ITS PRESENT FORM IN FOOTNOTE 25, INFRA. 
CF. SEN. REPT. NO. 433, 76TH CONG., IST SESS., P. 10. 

FN19  UNITED STATES V. ILLINOIS CENTRAL R. CO., 263 U.S. 515, 524. 

FN20  SEC. 2, 49 U.S.C. SEC. 2, READS AS FOLLOWS: 

"IF ANY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS CHAPTER
SHALL, DIRECTLY OR INDIRECTLY, BY ANY SPECIAL RATE, REBATE, DRAWBACK,
OR OTHER DEVICE, CHARGE, DEMAND, COLLECT, OR RECEIVE FROM ANY PERSON OR
PERSONS A GREATER OR LESS COMPENSATION FOR ANY SERVICE RENDERED OR TO
BE RENDERED, IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY, SUBJECT
TO THE PROVISIONS OF THIS CHAPTER, THAN IT CHARGES, DEMANDS, COLLECTS,
OR RECEIVES FROM ANY OTHER PERSON OR PERSONS FOR DOING FOR HIM OR THEM
A LIKE AND CONTEMPORANEOUS SERVICE IN THE TRANSPORTATION OF A LIKE KIND
OF TRAFFIC UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS,
SUCH COMMON CARRIER SHALL BE DEEMED GUILTY OF UNJUST DISCRIMINATION,
WHICH IS PROHIBITED AND DECLARED TO BE UNLAWFUL." 

THE PERTINENT PROVISIONS OF SEC. 3 ARE SET FORTH IN FOOTNOTE 4,
SUPRA. 

FN21  STANDARD PACKING CO. V. UNION PACIFIC R. CO., 190 I.C.C. 433;
PARKERSBURG RIG & REEL CO. V. CHICAGO & N.W. RY. CO., 198 I.C.C. 709;
WILLIAM KELLY MILLING CO. V. ATCHISON, T. & S.F. RY. CO., 211 I.C.C.
53; KANSAS CITY ICE CO. V. ATCHISON, T. & S.F. RY. CO., 215 I.C.C. 616,
619; HALIFAX COAL & WOOD CO. V. ATLANTIC & Y. RY. CO., 219 I.C.C. 594;
MOREHEAD COTTON MILLS CO. V. CHESAPEAKE & OHIO RY. CO., 231 I.C.C.
437. 

FN22  SEE CASES CITED IN FOOTNOTE 21, SUPRA.  COMPARE ARIZONA GROCERY
CO. V. ATCHISON, T. & S.F. RY. CO., 284 U.S. 370; 50 YALE LAW JOURNAL
714. 

FN23  SEE FOOTNOTE 2, SUPRA, FOR THE TEXT. 

FN24  INDEED, THE LEGISLATIVE HISTORY SHOWS THAT THE WATER INTERESTS
VIGOROUSLY CHAMPIONED THE LONG-AND-SHORT-HAUL CLAUSE AS A MEASURE
NECESSARY TO PREVENT RUINOUS COMPETITION. 

FN25  SEC. 6(11) PROVIDES: 

"WHEN PROPERTY MAY BE OR IS TRANSPORTED FROM POINT TO POINT IN THE
UNITED STATES BY RAIL AND WATER THROUGH THE PANAMA CANAL OR OTHERWISE,
THE TRANSPORTATION BEING BY A COMMON CARRIER OR CARRIERS, AND NOT
ENTIRELY WITHIN THE LIMITS OF A SINGLE STATE, THE INTERSTATE COMMERCE
COMMISSION SHALL HAVE JURISDICTION OF SUCH TRANSPORTATION AND OF THE
CARRIERS, BOTH BY RAIL AND BY WATER, WHICH MAY OR DO ENGAGE IN THE
SAME, IN THE FOLLOWING PARTICULARS, IN ADDITION TO THE JURISDICTION
OTHERWISE GIVEN BY THIS CHAPTER: 

"...  (B)  TO ESTABLISH PROPORTIONAL RATES OR MAXIMUM, OR MINIMUM, OR
MAXIMUM AND MINIMUM PROPORTIONAL RATES, BY RAIL TO AND FROM THE PORTS
TO WHICH THE TRAFFIC IS BROUGHT, OR FROM WHICH IT IS TAKEN BY THE WATER
CARRIER, AND TO DETERMINE TO WHAT TRAFFIC AND IN CONNECTION WITH WHAT
VESSELS AND UPON WHAT TERMS AND CONDITIONS SUCH RATES SHALL APPLY.  BY
PROPORTIONAL RATES ARE MEANT THOSE WHICH DIFFER FROM THE CORRESPONDING
LOCAL RATES TO AND FROM THE PORT AND WHICH APPLY ONLY TO TRAFFIC WHICH
HAS BEEN BROUGHT TO THE PORT OR IS CARRIED FROM THE PORT BY A COMMON
CARRIER BY WATER."  49 U.S.C. SEC. 6(11). 

FN26  SALT FROM LOUISIANA MINES TO CHICAGO, 69 I.C.C. 312, 313.   SEE
ALSO, LIVESTOCK TO EASTERN DESTINATIONS, 156 I.C.C. 498. 

FN27  IN THE ORIGINAL FORM PROVIDED BY SEC. 12 OF THE MANN-ELKINS
ACT, 1910, 36 STAT. 539, 552, THE PERIOD OF SUSPENSION WAS NOT TO
EXCEED 120 DAYS, WITH THE PROVISO THAT IF THE HEARING COULD NOT BE
CONCLUDED WITHIN THAT PERIOD THE COMMISSION MIGHT IN ITS DISCRETION
EXTEND THE TIME FOR A FURTHER PERIOD NOT EXCEEDING SIX MONTHS.  SEC. 4
OF THE COMMISSION DIVISION ACT, 1917, 40 STAT. 270, 272, PROVIDED THAT
UNTIL JANUARY 1, 1920, COMMISSION APPROVAL MUST BE HAD FOR THE FILING
OF INCREASED RATES.  BY SEC. 418 OF THE TRANSPORTATION ACT OF 1920, 41
STAT. 456, 486, THE INITIAL SUSPENSION PERIOD OF 120 DAYS WAS RETAINED,
BUT THE PERMISSIBLE PERIOD OF FURTHER SUSPENSION WAS SHORTENED TO
THIRTY DAYS.  "THE INCREASED SIZE OF THE COMMISSION AND ITS DIVISIONAL
ORGANIZATION RENDERED THE SHORTENING OF THE SUSPENSION PERIOD
FEASIBLE."  1 SHARFMAN, THE INTERSTATE COMMERCE COMMISSION, 203.  THE
COMMISSION WAS AUTHORIZED, HOWEVER, TO REQUIRE THE CARRIER TO KEEP
ACCURATE ACCOUNT IN DETAIL OF ALL AMOUNTS RECEIVED BY REASON OF AN
INCREASE GOING INTO EFFECT AT THE END OF THE PERIOD OF SUSPENSION, AND
TO REQUIRE AT THE END OF THE HEARING THAT THEY BE REFUNDED.  THE
PRESENT PROVISIONS WITH REGARD TO THE COMMISSION'S POWER OF SUSPENSION
AND OF REQUIRING AN ACCOUNTING WERE ENACTED BY SEC. 2 OF THE MAYTON
NEWFIELD ACT, 1927, 44 STAT. 1446, 1447.    FN28  SEE FOOTNOTE 4,
SUPRA.    MR. JUSTICE RUTLEDGE DID NOT PARTICIPATE IN THE CONSIDERATION
OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING: 

THE ISSUE IN THIS CASE IS WHETHER THE FARMERS AND SHIPPERS OF THE
MIDDLE WEST CAN BE COMPELLED BY THE INTERSTATE COMMERCE COMMISSION AND
THE RAILROADS TO USE HIGH-PRICED RAIL INSTEAD OF LOW-PRICED BARGE
TRANSPORTATION FOR THE SHIPMENT OF GRAIN TO THE EAST.  I AGREE THAT, IN
THE WORDS OF DIVISION 2 OF THE COMMISSION, "THIS RECORD IS REPLETE WITH
COMPLEXITIES AND TECHNICALITIES" WHICH HAVE ALMOST, BUT I THINK NOT
QUITE, SUCCESSFULLY OBSCURED THAT SIMPLE ISSUE.  THE DISTRICT COURT,
WHICH HELD THAT THE INTERSTATE COMMERCE COMMISSION'S ORDER
"DISCRIMINATES AGAINST WATER COMPETITION BY THE USERS OF BARGES,"
UNDERSTOOD THE ISSUE.  FN1  THE RAILROADS, WHICH PROPOSED THE INCREASE
IN THE COST TO BARGE SHIPPERS, ALSO UNDERSTOOD THE ISSUE AS IS SHOWN BY
THE FRANK STATEMENT OF THEIR REPRESENTATIVE AT THE COMMISSION HEARING:
"WE MADE THIS PROPOSAL, AS I HAVE STATED SEVERAL TIMES, AND FILED THESE
TARIFFS WITH THE HOPE THAT WE COULD DRIVE THIS BUSINESS OFF OF THE
WATER AND BACK ONTO THE RAILS WHERE IT BELONGS.  ...  WE ARE NOT IN
LOVE WITH WATER TRANSPORTATION  ...  AND WE BELIEVE THAT WE ARE
ENTITLED TO THAT GRAIN BUSINESS."  FROM BEHIND A VERBAL CAMOUFLAGE OF
"COMPLEXITIES AND TECHNICALITIES" THERE EMERGES ONE SINGLE EASILY
UNDERSTANDABLE QUESTION:  RAILROADS PICK UP GRAIN IN CHICAGO WHICH MAY
BE BROUGHT THERE BY RAIL, LAKE TRANSPORT, OR INLAND WATERWAY BARGE.  IS
IT LAWFUL FOR A RAILROAD TO DEPRIVE MIDWESTERN GRAIN FARMERS AND
SHIPPERS OF THE BENEFITS OF CHEAP BARGE TRANSPORTATION BY CHARGING A
HIGHER TARIFF FOR RE-SHIPMENT OF GRAIN ORIGINALLY TRANSPORTED TO
CHICAGO BY BARGE THAN THE SAME RAILROAD CHARGES FOR RE-SHIPMENT OF THE
SAME GRAIN FROM CHICAGO TO THE SAME PLACES WHEN THE GRAIN IS BROUGHT TO
THE RE-SHIPPING POINT BY RAIL OR BY LAKE? 

THE RECORD SHOWS, AND IT WAS ADMITTED AT THE BAR, THAT BARGES CAN BY
REASON OF THEIR INHERENT ADVANTAGES CARRY GRAIN MORE CHEAPLY THAN
RAILROADS.  THE COMMISSION FOUND THAT INBOUND GRAIN BARGE RATES TO
CHICAGO RANGED FROM 2.75 TO 4.5 CENTS PER HUNDRED POUNDS FOR HAULS OF
DISTANCES OF 57 TO 200 MILES AS CONTRASTED WITH RAIL RATES FOR THE SAME
DISTANCES RANGING FROM 9.5 TO 13 CENTS.  GRAIN CAN THUS BE BROUGHT TO
CHICAGO FAR MORE CHEAPLY BY BARGE THAN BY RAIL.  HOWEVER, ONLY A SMALL
PROPORTION OF THE GRAIN WHICH IS SENT TO CHICAGO STAYS IN THAT CITY,
AND THE NEW TARIFF APPROVED BY THE COMMISSION AND BY THIS COURT WILL
CHARGE SO MUCH MORE FOR THE SHIPMENT OF GRAIN TO THE EAST WHEN THE
GRAIN IS BROUGHT TO CHICAGO BY BARGE THAN IS CHARGED FOR SHIPMENT OF
GRAIN BROUGHT IN BY RAIL THAT THIS NATURAL ADVANTAGE OF BARGE
TRANSPORTATION WILL BE DESTROYED.  HEREAFTER IT WILL COST 8.5 CENTS
MORE TO SHIP EX-BARGE THAN EX-RAIL GRAIN TO THE EAST.  FN2  UNDER THE
EXISTING RATES, A FARMER CAN SHIP HIS GRAIN FROM KANSAS CITY TO NEW
YORK BY BARGE TO CHICAGO AND RAIL FROM CHICAGO TO NEW YORK FOR 4.625
CENTS LESS THAN IF HE USES RAIL TRANSPORT ALL THE WAY FROM KANSAS CITY
TO NEW YORK.  UNDER THE NEW SCHEDULE APPROVED TODAY, THAT DIFFERENTIAL
IS WIPED OUT, AND HE WILL HEREAFTER PAY 3.875 MORE TO SHIP BY BARGE AND
RAIL THAN IF HE SHIPS RAIL ALL THE WAY.  THIS ORDER IN SUBSTANCE GIVES
EX-BARGE TRAFFIC A 4-CENT DISADVANTAGE WHERE IT PREVIOUSLY HAD A 4-CENT
ADVANTAGE.  SIMILAR PENALTIES ARE IMPOSED UPON SHIPPERS WHO USE BARGE
LINES IN MISSOURI, IOWA, AND ILLINOIS.  THE COMMISSION, AS ITS SOLE
FINDING ON THE IMPACT OF THE RATES ON THE BARGE LINES, FOUND THAT THE
NEW RATES WOULD NOT "PROHIBIT" BARGE SHIPMENTS.  SUCH A FINDING IS
IRRELEVANT.  A RATE NEED NOT BE PROHIBITIVE TO BE DISCRIMINATORY.  THE
NEW RATE IS MANIFESTLY INTENDED TO AND WILL HAVE THE EFFECT OF
TRANSFERRING MOST OF THE BARGE TRAFFIC TO THE RAILROADS, SINCE SHIPPERS
WILL NOT CUSTOMARILY PAY 10% MORE TO SHIP BY BARGE-RAIL THAN BY RAIL
ALONE.  FN3 

CERTAIN QUESTIONS MAY BE PUT TO ONE SIDE WITHOUT ELABORATE
DISCUSSION.  THE NEW RATES CANNOT BE JUSTIFIED ON A THEORY OF
DISTINCTION BETWEEN LONG AND SHORT HAULS SINCE THE DISTANCES COVERED
ARE SUBSTANTIALLY THE SAME WHETHER BARGE-RAIL OR ALL-RAIL
TRANSPORTATION IS USED.  THE COURT ASSERTS THAT THE EXISTING ALL-RAIL
RATES ARE LAWFUL UNDER THE LONG AND SHORT HAUL CLAUSES, WHILE THE
EXISTING BARGE-RAIL RATES ARE UNLAWFUL.  BUT THERE IS NOTHING IN THE
LONG AND SHORT HAUL CLAUSE WHICH REQUIRES THAT SHIPPERS BY RAIL TO
CHICAGO FROM POINTS IN ILLINOIS, IOWA, KANSAS, AND MISSOURI MUST BE
GRANTED A LOW RATE FOR SHIPMENT BEYOND CHICAGO WHICH IS DENIED TO THOSE
WHO SHIP INTO CHICAGO BY BARGE.  NOR IS THE FACT THAT THE RATES
DIRECTLY AFFECTED BY THE NEW TARIFF ARE "PROPORTIONAL" OF ANY
SIGNIFICANCE.  FN4  A THROUGH RATE MAY BE INVALID BECAUSE OF ONE FACTOR
ONLY OF THE COMBINATION OF RATES WHICH MAKE IT UP, "AND THAT FACTOR MAY
BE A PROPORTIONAL RATE."  FN5 THE ONLY ISSUE TO BE DECIDED IS WHETHER
THE BARGE SHIPPER SHIPPING FROM A GIVEN POINT TO CHICAGO SHOULD BE
GIVEN ANY DIFFERENT PROPORTIONAL RATE THAN RAIL SHIPPERS SHIPPING FROM
THE SAME POINT TO CHICAGO FOR EQUAL SERVICE OUT OF CHICAGO, AND, FOR
REASONS TO BE SET FORTH BELOW, I FIND NO JUSTIFICATION FOR SUCH A
DISCRIMINATION.  FN6 

THERE IS NO FACTUAL ISSUE HERE ON WHICH WE ARE BOUND TO ACCEPT THE
COMMISSION'S JUDGMENT AS WE WERE IN UNITED STATES V. CHICAGO HEIGHTS
TRUCKING CO., 310 U.S. 344.  HERE WE HAVE A RATE REVISION WHICH CAN
SERVE NO CONCEIVABLE PURPOSE EXCEPT TO FORCE SHIPPERS TO USE RAILROADS
INSTEAD OF BARGE LINES.  REASONABLE PERSONS MAY DIFFER AS TO THE WISDOM
OF SUCH A POLICY, BUT NOT AS TO THE CERTAINTY OF ITS RESULT; AND, AS
WILL BE SHOWN, CONGRESS HAS MADE THE POLICY JUDGMENT AND HAS FLATLY
FORBIDDEN THE COMMISSION TO DO WHAT IT HAS DONE.  THE SITUATION IS
SIMILAR TO MITCHELL V. UNITED STATES, 313 U.S. 80, 97, IN WHICH THE
COMMISSION SOUGHT TO SHELTER A FLATLY FORBIDDEN DISCRIMINATION BEHIND
THE SHIELD OF EXPERTISE.  THERE, TOO, WE WERE CITED TO THE CHICAGO
HEIGHTS CASE AND OUR MANY OTHER DECISIONS UPHOLDING THE RIGHT OF
ADMINISTRATIVE AGENCIES TO MAKE FACTUAL JUDGMENTS.  WE REPLIED THAT "ON
THE FACTS HERE PRESENTED, THERE IS NO ROOM, AS THE GOVERNMENT PROPERLY
SAYS, FOR ADMINISTRATIVE OR EXPERT JUDGMENT WITH RESPECT TO PRACTICAL
DIFFICULTIES.  IT IS ENOUGH THAT THE DISCRIMINATION SHOWN WAS PALPABLY
UNJUST AND FORBIDDEN BY THE ACT."  SUCH I THINK SHOULD BE OUR ANSWER
HERE. 

THIS TARIFF IS AN UNJUST DISCRIMINATION WITHIN THE MEANING OF SEC. 2
OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 2, WHICH PROHIBITS A
CARRIER FROM DEMANDING A CHARGE EITHER HIGHER OR LOWER THAN IS CHARGED
BY ANY OTHER PERSON FOR DOING FOR HIM "A LIKE AND CONTEMPORANEOUS
SERVICE IN THE TRANSPORTATION OF A LIKE KIND OF TRAFFIC UNDER
SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS."  MANY DECISIONS
MAKE CLEAR THAT THIS SECTION DOES IN FACT REQUIRE A REAL EQUALITY. 
INTERSTATE COMMERCE COMMISSION V. BALTIMORE & OHIO R. CO., 225 U.S.
326; ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 279 U.S. 768.  THE
COMMISSION COUNTERS WITH A CONTENTION THAT HERE THERE IS "A
DISSIMILARITY OF CONDITIONS PRIOR TO THE RENDERING OF THE
TRANSPORTATION SERVICE FOR WHICH THE CHARGE IN ISSUE IS ASSESSED." 
TRUE THERE IS A DIFFERENCE, IF ONLY ONE, IN THE CONDITIONS PRIOR TO THE
RENDERING OF THE SERVICE FROM CHICAGO TO THE EAST.  THE DIFFERENCE IS
SOLELY THAT ONE CLASS OF GRAIN MOVES IN TO CHICAGO BY BARGE AND ANOTHER
MOVES IN BY OTHER MEANS; AND THIS IS A GROUND NOT OF LEGITIMATE
DISTINCTION, BUT OF UNFAIR DISCRIMINATION.  THE DISCRIMINATION WOULD BE
NO WORSE IF THE BENEFITS OF THE CHEAP THROUGH RATES WERE GIVEN ONLY TO
SHIPPERS ON A FAVORED RAILROAD COMING INTO CHICAGO, AND NOT TO OTHER
SHIPPERS BY RAIL.  ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, SUPRA,
773.  HERE ALL CIRCUMSTANCES AND CONDITIONS ARE SUBSTANTIALLY SIMILAR,
AND THE COURT OUGHT TO REQUIRE THE COMMISSION TO OBEY THE LAW BY
FOLLOWING ITS OWN PREVIOUSLY ANNOUNCED RULE IN CHATTANOOGA PACKET CO.
V. ILLINOIS CENTRAL R. CO., 33 I.C.C. 384, 392, 393, IN WHICH THE
COMMISSION SAID:  "IF CARRIERS ARE PERMITTED TO APPLY HIGHER RATES FOR
THE SAME SERVICE ON TRAFFIC ROUTED OVER CONNECTING WATER LINES THAN ON
TRAFFIC VIA THEIR ALL-RAIL CONNECTIONS, THEY WILL BE IN A POSITION TO
DESTROY ALL WATER COMPETITION AND TO DEPRIVE SHIPPERS OF THE ADVANTAGE
OF THEIR LOCATION UPON NAVIGABLE WATERS.  ...  WE ARE OF THE OPINION
AND FIND THAT, BY RESTRICTING THEIR PROPORTIONAL RATES TO TRAFFIC
ROUTED OVER THEIR SOUTHERN RAIL CONNECTIONS, DEFENDANTS ARE UNJUSTLY
DISCRIMINATING AGAINST COMPLAINANT AND AGAINST SHIPPERS WHO DESIRE TO
ROUTE THEIR GOODS OVER COMPLAINANT'S BOAT LINE." 

THE DECISION OF THE COMMISSION ALSO VIOLATES SEC. 3(4) OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 3(4), WHICH UNDER THE 1940
AMENDMENT TO THE INTERSTATE COMMERCE ACT IS APPLICABLE TO THE
APPELLEES, AND WHICH FORBIDS CARRIERS TO "DISCRIMINATE IN THEIR RATES,
FARES, AND CHARGES BETWEEN CONNECTING LINES."  THIS SECTION BECAME
APPLICABLE TO THE APPELLEES IN THE COURSE OF THE COMMISSION'S
DISPOSITION OF THIS CASE, BUT BEFORE ITS OPINION WAS FILED.  THIS
CIRCUMSTANCE IS NOT, AS THE COMMISSION SEEMS TO HAVE SUPPOSED, A REASON
FOR IGNORING THE SECTION.  NO MORE OBVIOUS "DISCRIMINATION IN THEIR
RATES, FARES, AND CHARGES" CAN BE IMAGINED, PARTICULARLY IN THE LIGHT
OF THE GENERAL POLICY OF THE TRANSPORTATION ACT OF 1940. 

I THINK THAT APPROVAL OF THIS TARIFF IS A DEFIANCE OF THE
TRANSPORTATION ACT OF 1940.  54 STAT. 899.  THIS ACT DECLARED IT TO BE
"THE NATIONAL TRANSPORTATION POLICY OF THE CONGRESS TO PROVIDE FOR FAIR
AND IMPARTIAL REGULATION OF ALL MODES OF TRANSPORTATION SUBJECT TO THE
PROVISIONS OF THIS ACT, SO ADMINISTERED AS TO RECOGNIZE AND PRESERVE
THE INHERENT ADVANTAGES OF EACH."  TITLE I, SEC. 1.  THE ACT COMMANDS
THE INTERSTATE COMMERCE COMMISSION THAT "ALL OF THE PROVISIONS OF THIS
ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW OF CARRYING OUT THE
ABOVE DECLARATION OF POLICY."  CONGRESS, FEARFUL, IN THE WORDS OF
SEVERAL MEMBERS, THAT THE COMMISSION WAS "ESSENTIALLY A RAILROAD MINDED
BODY,"  FN7  TOOK EVERY PRECAUTION TO PREVENT DISCRIMINATION AGAINST
WATER CARRIERS.  FN8 

SENATORS, PARTICULARLY THOSE FROM THE MIDWESTERN STATES WHERE THE
BARGE LINES INVOLVED HERE WERE OPERATING, WERE ESPECIALLY FEARFUL THAT
THE COMMISSION WOULD DO SUBSTANTIALLY WHAT IT HAS DONE IN THIS CASE. 
THEY REQUIRED REPEATED ASSURANCE BY THE CHAIRMAN OF THE INTERSTATE
COMMERCE COMMITTEE OF THE SENATE THAT THE BILL WAS WRITTEN IN SUCH
MANNER THAT THE COMMISSION COULD NOT IF IT DESIRED PERMIT
DISCRIMINATION AGAINST WATER CARRIERS.  AT GREAT LENGTH THE CHAIRMAN OF
THAT COMMITTEE EXPLAINED TO APPREHENSIVE SENATORS THAT THE BILL
CONTAINED PROVISIONS IN THREE DIFFERENT PLACES WHICH IMPOSED UPON THE
COMMISSION THE IMPERATIVE DUTY OF STANDING IN CONSTANT OPPOSITION TO
DISCRIMINATION AGAINST SHIPPERS BY WATER.  FN9 

HOUSE MEMBERS SHARED THE SAME FEARS.  THE FIRST CONFERENCE REPORT WAS
DEFEATED IN THE HOUSE BECAUSE IT WAS BELIEVED THAT THE BILL DID NOT
OFFER ADEQUATE PROTECTION FOR WATER CARRIERS AGAINST HOSTILE INTERSTATE
COMMERCE COMMISSION ACTION.  FN10  A PROPONENT OF THE BILL TOLD THE
HOUSE THAT "IT IS NOT FAIR TO SUGGEST, IN MY OPINION, THAT THE
COMMISSION AND THE COURTS WILL NOT LOOK TO THIS DECLARATION OF POLICY
WHENEVER THEY ARE CALLED UPON TO MAKE SUCH CONSTRUCTION OF THE STATUTE
AND APPLICATION OF IT  ...  THE SPECIFIC PROVISIONS OF THE BILL CARRY
OUT THE DECLARATION OF POLICY.  THE COURTS AND COMMISSIONS WILL
RECOGNIZE THAT.  ..."  FN11  DEFENDING THE POLICY PROVISIONS AS A
COMPLETE PROTECTION AGAINST COMMISSION ACTION ANTAGONISTIC TO BARGE
TRANSPORTATION, ANOTHER SPONSOR OF THE BILL, OPPOSING A SAFEGUARDING
AMENDMENT, DECLARED THAT TO CONSIDER IT NECESSARY "YOU WILL HAVE TO
FURTHER ASSUME THAT THE INTERSTATE COMMERCE COMMISSION WILL NOT ENFORCE
IT.  YOU WILL HAVE TO ASSUME THAT IF A CASE GOES TO THE COURTS, THE
COURTS WILL NEITHER CONSTRUE NOR ENFORCE THE PROVISIONS OF THIS
POLICY."  FN12  AS I SEE IT, THE COMMISSION IN THIS CASE HAS DECLINED
TO ENFORCE CONGRESS' POLICY AND THE COURT HAS FAILED TO CONSTRUE AND
ENFORCE THE ACT AS CONGRESS CLEARLY INTENDED IT SHOULD. 

THIS IS NOT ALL.  THE FIRST CONFERENCE REPORT HAVING BEEN DEFEATED,
THE SECOND CONFERENCE REPORT BROUGHT IN CHANGES INTENDED TO OFFER MORE
PROTECTION TO WATER CARRIERS.  THE CONFEREES REPORTED THAT:  "THIS
MEASURE WILL PLACE UPON THE INTERSTATE COMMERCE COMMISSION, NOT ONLY
THE POWER, BUT THE DUTY, TO PROTECT AND FOSTER WATER TRANSPORTATION AND
PRESERVE ITS INHERENT ADVANTAGES."  FN13 AS A CLOSING, CLINCHING
ARGUMENT INTENDED TO PERSUADE THE HOUSE THAT THE COMMISSION WOULD BE
FAIR TO WATER CARRIERS, THE STATEMENT OF COMMISSIONER EASTMAN (WHO
DISSENTED FROM THE ORDER OF THE COMMISSION HERE) WAS QUOTED.  EASTMAN
ASSURED THE CONGRESSMEN INTERESTED IN WATER TRANSPORTATION THAT CERTAIN
PROVISIONS OF THE BILL "COUPLED WITH THE ADMONITION IN THE DECLARATION
OF POLICY IN SECTION 1 THAT THE PROVISIONS OF THE ACT BE SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH MODE OF TRANSPORTATION, WILL AFFORD ADEQUATE PROTECTION IN THIS
RESPECT.  IF EXPERIENCE SHOULD SHOW THAT FURTHER PROTECTION IS NEEDED,
CONTRARY TO OUR EXPECTATION, CONGRESS CAN AMEND THE ACT, BUT SUCH A
RESTRICTION AS IS NOW PROPOSED IS, WE BELIEVE, BOTH UNNECESSARY AND
UNDESIRABLE."  FN14    THE FINAL STATEMENT OF THE LAST PROPONENT OF THE
1940 ACT, SPOKEN JUST BEFORE THE VOTE WAS TAKEN ON THE SECOND
CONFERENCE REPORT, WERE THESE:  "THERE IS NOTHING WHATEVER IN THE
PENDING MEASURE WHICH COULD BY ANY FAIR INTERPRETATION BE REGARDED AS
UNJUST TO WATER TRANSPORTATION OR TO ANY OTHER KIND OF
TRANSPORTATION."  THE SPEAKER THEN READ THE POLICY PROVISIONS OF SEC. 1
AND ASKED: "HOW MUCH PLAINER COULD LANGUAGE BE THAN THAT IS?  IT IS
CRYSTAL CLEAR THAT THERE IS NO BASIS IN THE BILL FOR THE APPREHENSION
EXPRESSED BY THOSE OPPOSED TO THE MEASURE."  FN15 

ALTHOUGH THESE PROCEEDINGS WERE NOT INITIATED UNDER THE 1940 ACT,
FN16  THE COMMISSION SHOULD HAVE FELT ITSELF BOUND BY THAT
CONGRESSIONAL EXPRESSION OF POLICY.  YET THE LEGISLATIVE HISTORY JUST
RECITED MAKES IT CLEAR THAT THE COMMISSION HAS FLAGRANTLY FLOUTED THE
EXPRESS MANDATE OF CONGRESS.  IT IS SAID, HOWEVER, THAT THE COMMISSION
RESERVES THE RIGHT TO TAKE FURTHER ACTION IN A "PROPER PROCEEDING" IN
WHICH IT "MIGHT PRESCRIBE PROPORTIONAL RATES (ON THE EX-BARGE TRAFFIC)
OR JOINT BARGE-RAIL RATES LOWER THAN THE COMBINATIONS."  AT SOME FUTURE
DAY THE COMMISSION MAY CORRECT THIS DISCRIMINATION.  BUT THE DAY FOR
COMMISSION ACTION WAS THE DAY THIS CASE WAS DECIDED, AND THE DAY FOR
ACTION BY THIS COURT IS NOW.  THE COMMISSION IS NOT BOUND BY THE
TECHNICAL PROCEDURES OF THE COMMON LAW, AND IT SHOULD NOT STRAIN TO
AVOID THE ENFORCEMENT OF CONGRESSIONAL WILL BECAUSE OF THE FORMAL
FASHION IN WHICH QUESTIONS ARE PRESENTED TO IT.  IN THIS PROCEEDING IT
WAS THE COMMISSION'S DUTY "TO PROTECT AND MAINTAIN A TRANSPORTATION
SYSTEM FREE FROM PARTIALITY TO PARTICULAR SHIPPERS.  THE COMMISSION
ACTED IN ITS CAPACITY AS A PUBLIC AGENCY" AND WAS OBLIGATED TO CARRY
OUT "DUTIES IMPOSED UPON IT BY CONGRESS IN THE INTEREST OF SHIPPERS
GENERALLY, THE NATIONAL TRANSPORTATION SYSTEM AND THE PUBLIC
INTEREST."  UNITED STATES V. CHICAGO HEIGHTS TRUCKING CO., SUPRA, 354. 
THE FACT THAT THIS WAS NOT A FORMAL PROCEEDING TO FIX PROPORTIONAL
RATES UNDER SEC. 6(11)(B) DID NOT DETRACT FROM THE COMMISSION'S
POWERS.  CHICAGO, R.I. & P. RY. CO. V. UNITED STATES, 274 U.S. 29, 36;
UNITED STATES V. NEW YORK CENTRAL R. CO., 272 U.S. 457, 462.  THE
COMMISSION ITSELF IN CASES WHERE THE COMMAND OF CONGRESS WAS FAR LESS
EMPHATIC THAN HERE, HAS STATED THAT AN INVESTIGATION AND SUSPENSION
PROCEEDING SUCH AS THIS ONE "OPENS FOR CONSIDERATION THE LAWFULNESS OF
THE SUSPENDED RATES UNDER ALL PROVISIONS OF THE ACT."  SUGAR FROM GULF
COAST PORT GROUPS TO NORTHERN POINTS, 234 I.C.C. 247, 251.  "THE
REPROACH OF DEALING WITH THE MATTER PIECEMEAL" IS INCURRED BY THE
COMMISSION HERE AS IT WAS IN UNITED STATES V. CHICAGO, M., ST. P. &
P.R. CO., 294 U.S. 499, 510.  IT CANNOT, WITH DUE REGARD TO ITS DUTY,
SHIFT RESPONSIBILITY "FROM THE SHOULDERS OF THE PRESENT TO THE
SHOULDERS OF THE DAYS TO COME."  HERE AS IN THAT CASE, POSTPONEMENT
SERVES TO LEAVE "THIS PARTICULAR CARRIER HELPLESS IN THE INTERVAL." 
FN17 

CONGRESSMAN BLAND, WHO OPPOSED THE 1940 ACT ON THE GROUND THAT IT
LACKED SUFFICIENT SAFEGUARDS TO PREVENT ACTION BY THE COMMISSION
HOSTILE TO WATER TRANSPORTATION CALLED ATTENTION TO THE PROCEDURAL
DELAYS IN RATE CASES BEFORE THAT BODY, DELAYS WHICH HE DECLARED WOULD
BE USED TO STRANGLE FINANCIALLY WEAK WATER CARRIERS, FORCING THEM TO
"YIELD OR TRANSFER THEIR OPERATION TO OTHER STREAMS."  HE POINTED OUT
THIS "WOULD MEAN THE DEATH OF WATER CARRIERS"; THAT THE RAILROADS KNEW
HOW TO OBTAIN DELAY AND KNEW THE DISASTROUS CONSEQUENCES THAT WOULD
FOLLOW TO THEIR COMPETITORS; THAT RAILROADS "SEEK TO PROFIT" BY
PROCEDURAL DELAY; AND THAT THE DIVERSITY OF THEIR INTERESTS AND EXTENT
OF THEIR REVENUES WAS SO GREAT THAT THEY COULD SURVIVE DELAYS WHICH
WOULD BE UNENDURABLE FOR COMPETITORS.  FN18  THE CONGRESSMAN WAS A GOOD
OBSERVER AND A SOUND PROPHET. 

THE JUDGMENT OF THE DISTRICT COURT ENJOINING ENFORCEMENT OF THIS
ORDER WAS CORRECT AND SHOULD BE AFFIRMED. 

FN1  44 F.SUPP.  368, 375. 

FN2  THE FIGURE GIVEN IS THE INCREASE IN COST OF SHIPMENT TO THE BEST
EASTERN MARKET.  THE COST VARIES, DEPENDING ON THE DESTINATION OF THE
GRAIN. 

FN3  THE NEW RATES FOR SHIPMENT FROM CHICAGO TO THE EAST OF COURSE DO
NOT "PROHIBIT" BARGE SHIPMENTS TO CHICAGO SINCE THE SMALL AMOUNT OF
GRAIN CONSUMED IN THAT CITY WILL NOT BE AFFECTED BY THE OUTGOING RATES,
AND SOME GRAIN CAN STILL BE CARRIED TO THE EAST BY LAKE TRANSPORTATION
FOR SO MUCH OF THE YEAR AS THE LAKES ARE OPEN TO TRAFFIC. 

THE COURT QUOTES THE FINDING OF THE COMMISSION THAT "THE PROPOSED
SCHEDULES ARE NOT PROHIBITIVE" AND THAT THEIR PRINCIPAL EFFECT WILL BE
TO REDUCE THE PROFITS OF THE CHICAGO ELEVATOR OPERATORS.  IF THE
SCHEDULES OPERATE UNFAIRLY, AS I THINK THEY DO, IT IS IMMATERIAL
WHETHER THE FARMERS OR THE ELEVATOR OPERATORS BEAR THE BURDEN OF THE
UNFAIRNESS; BUT THE COURT IN RELYING ON THIS FINDING PAYS LITTLE REGARD
TO THE FACT THAT THE COURT BELOW FOUND AS A FACT THAT THE SAVING FROM
BARGE TRANSPORATION "ACCRUES TO THE PRODUCER" AND "DOES NOT ACCRUE TO
THE CHICAGO ELEVATOR OPERATOR."  UNLESS THE COURT IS WILLING, AS
APPARENTLY IT IS NOT, TO REEXAMINE THE EVIDENCE AND TO CONCLUDE THAT
THE COURT BELOW IS IN ERROR, WE MUST TAKE THE FACTS AS THEY ARE GIVEN
TO US BY THE DISTRICT COURT.  IN ANY CASE, I THINK THE DISTRICT COURT
WAS CORRECT. 

FN4  "A THROUGH RATE IS ORDINARILY LOWER THAN THE COMBINATION OF THE
LOCAL RATES.  WHEN A THROUGH RATE IS MADE BY COMBINATION OF RATES FOR
INTERMEDIATE DISTANCES THE RATE FOR THE LATER LINK IN THE SHIPMENT IS,
WHEN LOWER THAN THE LOCAL, SPOKEN OF AS A PROPORTIONAL RATE." 
ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 279 U.S. 768, 771. 

FN5  IBID., 776. 

FN6  THE COMMISSION AND THE COURT REFER TO THE FACT THAT EX-BARGE
RATES ARE NOW EQUAL TO EX-TRUCK RATES.  THIS IS IRRELEVANT.  IF THERE
IS A DISCRIMINATION AGAINST TRUCK SHIPPERS, THE REMEDY IS AN
IMPROVEMENT OF THEIR SITUATION, NOT A DESTRUCTION OF BARGE SHIPPING. 
IN THE WORDS OF CHAIRMAN EASTMAN IN HIS DISSENTING OPINION, "MY
TENTATIVE OPINION UPON IT IS THAT WHERE THE MOVEMENT BY TRUCK IS FROM
TERRITORY FROM WHICH GRAIN CAN BE MOVED BY RAIL OR BY WATER TO CHICAGO
SUBJECT TO THE APPLICATION OF THE RESHIPPING RATES EAST-BOUND, THE
FAILURE TO APPLY SUCH RATES TO THE GRAIN BROUGHT IN BY TRUCK DOES
RESULT IN VIOLATION OF SECTIONS 2 AND 3, PROVIDED ADEQUATE PROVISIONS
FOR THE IDENTIFICATION AND POLICING OF SUCH SHIPMENTS ARE PRACTICABLE
AND ENFORCEABLE." 

FN7  84 CONG. REC. 5965, 5883, 5880-81.  LEGISLATION SIMILAR IN
PURPOSE TO THE 1940 ACT WAS CONSIDERED BY CONGRESSIONAL COMMITTEES IN
THE 74TH AND SUBSEQUENT CONGRESSES.  OPPOSITION TO LEGISLATION GIVING
THE COMMISSION AUTHORITY OVER WATER TRANSPORTATION CAME FROM
REPRESENTATIVES OF THE WATER SHIPPERS.  A TYPICAL PROTEST WAS MADE BY
CLEVELAND A. NEWTON, GENERAL COUNSEL, MISSISSIPPI VALLEY ASSOCIATION,
IN THE HEARINGS BEFORE THE COMMITTEE ON MERCHANT MARINE AND FISHERIES,
HOUSE OF REPRESENTATIVES, 74TH CONG., 2D SESS., ON H.R. 5379:  "THIS
BILL IF ENACTED INTO LAW WILL PLACE WATER CARRIERS ALONG THE COAST AND
UPON OUR INLAND RIVERS UNDER THE ABSOLUTE DOMINATION AND CONTROL OF THE
INTERSTATE COMMERCE COMMISSION.  THAT COMMISSION WAS CREATED TO
REGULATE, CONSERVE, AND CONTROL RAILWAYS.  IT IS A RAILWAY-REGULATING
AGENCY.  IT NATURALLY HAS THE RAILWAY VIEWPOINT, AND PAST EXPERIENCE
CONVINCES US THAT THE COMMISSION, AS NOW CONSTITUTED, IS RAILWAY-MINDED
AND THAT IT WOULD NOT BE IN THE PUBLIC INTEREST TO PLACE WATER SERVICES
UNDER ITS DOMINATION AND CONTROL.  ...  WE HAVE OBSERVED THE
PERFORMANCE OF THE COMMISSION IN THE PAST, UNDER A COMPREHENSIVE
DECLARATION OF POLICY ENACTED BY CONGRESS, AND THAT EXPERIENCE, WE
REGRET TO SAY, HAS NOT INSPIRED CONFIDENCE."  HEARINGS, P. 471. 

FN8  "MR. LUCAS:  ...  UNDER THE BILL, AS I UNDERSTAND IT, THE
INTERSTATE COMMERCE COMMISSION WOULD HAVE THE POWER, AND IT WOULD BE
ITS DUTY, TO FIX RATES ON THE ILLINOIS RIVER WITH RESPECT TO THE
TRANSPORTATION OF THAT WHEAT AND CORN.  WOULD IT BE POSSIBLE FOR THE
INTERSTATE COMMERCE COMMISSION TO FIX THE RATE THE SAME AS THE RAILROAD
RATE FROM THAT POINT TO ST. LOUIS? 

"MR. WHEELER:  NOT IF THE COMMISSION DOES ITS DUTY, BECAUSE THE BILL
SPECIFICALLY PROVIDES THAT IT MUST TAKE INTO CONSIDERATION THE INHERENT
ADVANTAGES OF THE WATER CARRIER.  EVERYONE AGREES THAT GOODS CAN BE
SHIPPED MORE CHEAPLY BY WATER THAN BY RAIL."  84 CONG. REC. 5879. 

THE FOLLOWING SENATORS AND REPRESENTATIVES, AMONG OTHERS, EITHER
REQUIRED ASSURANCE THAT THE COMMISSION WOULD NOT DISCRIMINATE AGAINST
WATER CARRIERS OR EXPRESSED THE CONVICTION THAT UNDER THE STATEMENT OF
POLICY, THE COMMISSION WOULD BE UNABLE TO DISCRIMINATE AGAINST WATER
CARRIERS: SENATORS AUSTIN, CLARK OF MISSOURI, CONNALLY, ELLENDER,
LUCAS, MILLER, MCNARY, NORRIS, PEPPER, SHIPSTEAD, TRUMAN, AND WHEELER;
REPRESENTATIVES BLAND, BULWINKLE, CROSSER, CULKIN, HALLECK, LEA, PIERCE
OF OREGON, SPARKMAN, AND WADSWORTH. 

FN9  84 CONG. REC. 6125-6128. 

FN10  THE FIRST CONFERENCE REPORT WAS REJECTED BY THE HOUSE ON MAY 9,
1940, 86 CONG. REC. 5886.  THE SECOND REPORT WAS ACCEPTED ON AUG. 12,
1940, 86 CONG. REC. 10193. 

FN11  84 CONG. REC. 9865. 

FN12 84 CONG. REC. 9863. 

FN13  86 CONG. REC. 10172. 

FN14  86 CONG. REC. 10191.  IN HIS DISSENTING OPINION, CHAIRMAN
EASTMAN SAID:  "THE REPORT STATES THAT THE 'PROPOSED SCHEDULES WILL NOT
PROHIBIT THE MOVEMENT BY BARGE-RAIL EVEN TO TRUNK-LINE TERRITORY, THEIR
PRINCIPAL COMMERCIAL EFFECT BEING TO REDUCE THE PROFIT OF THE CHICAGO
ELEVATOR OPERATORS.'  I DO NOT SO UNDERSTAND THE EVIDENCE.  ...  AS I
UNDERSTAND IT, THE EFFECT OF THE PROPOSED SCHEDULES, UNLESS THE PRICES
PAID TO THE FARMERS WHOSE GRAIN IS BARGED ARE REDUCED, WILL BE TO LIMIT
THE OUTLET OF THE EX-BARGE GRAIN TO LOCAL CONSUMPTION IN CHICAGO AND TO
THE LAKE AND LAKE-RAIL ROUTES TO EASTERN POINTS." 

FN15  86 CONG. REC. 10192. 

FN16  THE 1940 ACT GAVE THE COMMISSION JURISDICTION TO REGULATE WATER
TRANSPORTATION DIRECTLY.  HERE THE SAME EFFECT IS ACHIEVED UNDER THE
COMMISSION'S OTHER POWERS BY A TARIFF AIMED AT SHIPPERS WHO HAVE
PREVIOUSLY USED WATER TRANSPORTATION.  FOR THE BACKGROUND AND NATURE OF
THE 1940 ACT SEE EASTMAN, THE TRANSPORTATION PROBLEM, 30 AMER.  ECON. 
REV. 124; STEIN, FEDERAL REGULATION OF WATER CARRIERS, 16 JOUR.  LAND
AND PUB. UTIL.  ECON.  478; HARBESON, THE TRANSPORTATION ACT OF 1940,
17 IBID. 291; REGULATION OF WATER CARRIERS, 50 YALE L. JOUR.  654. 

FN17  THE COURT INTERPRETS THE COMMISSION'S ORDER AS LEAVING OPEN THE
RIGHT OF THE SHIPPERS AFFECTED TO BRING ACTIONS FOR REPARATIONS FOR
INJURIES SUFFERED UNDER THE NEW RATES.  THIS WILL BRING SMALL PRACTICAL
COMFORT TO THE BARGE LINES SINCE THE SHIPPERS WILL BE UNLIKELY TO SHIP
BY BARGE WHEN THE PRICE OF EVERY SHIPMENT IS DEPENDENT ON FUTURE LEGAL
PROCEEDINGS.  THE BARGE LINES, "HELPLESS IN THE INTERVAL" PENDING NEW
LEGAL PROCEEDINGS, RISK SERIOUS FINANCIAL INJURY, IF NOT BANKRUPTCY. 
WHILE THE SHIPPERS CAN SHIP BY BARGE NOW AND SUE LATER, THEY ARE
PRESUMABLY INTERESTED IN BUYING TRANSPORTATION, NOT LAWSUITS. 

FN18 86 CONG. REC. 10181. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN IN THIS OPINION. 
..END :










DIRECT SALES CO. V. U.S., 319 U.S. 703 


NO. 593.  ARGUED APRIL 12, 1943.  - DECIDED JUNE 14, 1943.  - 131 F.2D
835, AFFIRMED. 


A MAIL-ORDER WHOLESALE DRUG CORPORATION MADE SALES OF MORPHINE
SULPHATE TO A PHYSICIAN IN UNUSUALLY LARGE QUANTITIES, FREQUENTLY, AND
OVER AN EXTENDED PERIOD.  HELD, THAT THE EVIDENCE, FROM WHICH IT COULD
BE INFERRED THAT THE SELLER NOT ONLY KNEW THE PHYSICIAN WAS SELLING THE
DRUG ILLEGALLY BUT INTENDED TO COOPERATE WITH HIM THEREIN, WAS
SUFFICIENT TO SUSTAIN THE SELLER'S CONVICTION OF CONSPIRACY TO VIOLATE
THE HARRISON NARCOTIC ACT.  UNITED STATES V. FALCONE, 311 U.S. 205,
DISTINGUISHED.  P. 714. 

DIRECT SALES CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 318 U.S. 749, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR CONSPIRACY TO VIOLATE THE HARRISON NARCOTIC ACT.  SEE ALSO 44
F.SUPP.  623. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A CORPORATION, WAS CONVICTED OF CONSPIRACY TO VIOLATE THE
HARRISON NARCOTIC ACT.  FN1  IT CHALLENGES THE SUFFICIENCY OF THE
EVIDENCE TO SUSTAIN THE CONVICTION.  BECAUSE OF ASSERTED CONFLICT WITH
UNITED STATES V. FALCONE, 311 U.S. 205, CERTIORARI WAS GRANTED. 

PETITIONER IS A REGISTERED DRUG MANUFACTURER AND WHOLESALER N2.  IT
CONDUCTS A NATIONWIDE MAIL-ORDER BUSINESS FROM BUFFALO, NEW YORK.  THE
EVIDENCE RELATES CHIEFLY TO ITS TRANSACTIONS WITH ONE DR. JOHN V. TATE
AND HIS DEALINGS WITH OTHERS.  HE WAS A REGISTERED PHYSICIAN,
PRACTICING IN CALHOUN FALLS, SOUTH CAROLINA, A COMMUNITY OF ABOUT 2,000
PERSONS.  HE DISPENSED ILLEGALLY VAST QUANTITIES OF MORPHINE SULPHATE
PURCHASED BY MAIL FROM PETITIONER.  THE INDICTMENT CHARGED PETITIONER,
DR. TATE, AND THREE OTHERS, BLACK, JOHNSON AND FOSTER, TO AND THROUGH
WHOM TATE ILLEGALLY DISTRIBUTED THE DRUGS, WITH CONSPIRING TO VIOLATE
SECS. 1 AND 2 OF THIS ACT,  FN3  OVER A PERIOD EXTENDING FROM 1933 TO
1940.  FOSTER WAS GRANTED A SEVERANCE, BLACK AND JOHNSON PLEADED
GUILTY, AND PETITIONER AND DR. TATE WERE CONVICTED.  DIRECT SALES ALONE
APPEALED.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  131 F.2D 835. 

THE PARTIES HERE ARE AT ODDS CONCERNING THE EFFECT OF THE FALCONE
DECISION AS APPLIED TO THE FACTS PROVED IN THIS CASE.  THE SALIENT
FACTS ARE THAT DIRECT SALES SOLD MORPHINE SULPHATE TO DR. TATE IN SUCH
QUANTITIES, SO FREQUENTLY AND OVER SO LONG A PERIOD IT MUST HAVE KNOWN
HE COULD NOT DISPENSE THE AMOUNTS RECEIVED IN LAWFUL PRACTICE AND WAS
THEREFORE DISTRIBUTING THE DRUG ILLEGALLY.  NOT ONLY SO, BUT IT
ACTIVELY STIMULATED TATE'S PURCHASES. 

HE WAS A SMALL-TOWN PHYSICIAN PRACTICING IN A RURAL SECTION.  ALL OF
HIS BUSINESS WITH DIRECT SALES WAS DONE BY MAIL.  THROUGH ITS
CATALOGUES PETITIONER FIRST MADE CONTACT WITH HIM PRIOR TO 1933. 
ORIGINALLY HE PURCHASED A VARIETY OF PHARMACEUTICALS.  BUT GRADUALLY
THE CHARACTER OF HIS PURCHASES NARROWED, SO THAT DURING THE LAST TWO
YEARS OF THE PERIOD ALLEGED FOR THE CONSPIRACY HE ORDERED ALMOST
NOTHING BUT MORPHINE SULPHATE.  AT ALL TIMES DURING THE PERIOD HE
PURCHASED THE MAJOR PORTION OF HIS MORPHINE SULPHATE FROM PETITIONER. 
THE ORDERS WERE MADE REGULARLY ON HIS OFFICIAL ORDER FORMS.  THE
TESTIMONY SHOWS THE AVERAGE PHYSICIAN IN THE UNITED STATES DOES NOT
REQUIRE MORE THAN 400 ONE-QUARTER GRAIN TABLETS ANNUALLY FOR LEGITIMATE
USE.  ALTHOUGH TATE'S INITIAL PURCHASES IN 1933 WERE SMALLER, THEY
GRADUALLY INCREASED UNTIL, FROM NOVEMBER, 1937, TO JANUARY, 1940, THEY
AMOUNTED TO 79,000 ONE-HALF GRAIN TABLETS.  IN THE LAST SIX MONTHS OF
1939, PETITIONER'S SHIPMENTS TO HIM AVERAGED 5,000 TO 6,000 HALF-GRAIN
TABLETS A MONTH, ENOUGH AS THE GOVERNMENT POINTS OUT TO ENABLE HIM TO
GIVE 400 AVERAGE DOSES EVERY DAY. 

THESE QUANTITY SALES WERE IN LINE WITH THE GENERAL MAIL-ORDER
CHARACTER OF PETITIONER'S BUSINESS.  BY PRINTED CATALOGUES CIRCULATED
ABOUT THREE TIMES A MONTH, IT SOLICITS ORDERS FROM RETAIL DRUGGISTS AND
PHYSICIANS LOCATED FOR THE MOST PART IN SMALL TOWNS THROUGHOUT THE
COUNTRY.  OF ANNUAL SALES OF FROM $300,000 TO $350,000 IN THE PERIOD
1936 TO 1940, ABOUT FIFTEEN PER CENT BY REVENUE AND TWO AND A HALF PER
CENT BY VOLUME WERE IN NARCOTICS.  THE MAIL-ORDER PLAN ENABLED
PETITIONER TO SELL AT PRICES CONSIDERABLY LOWER THAN WERE CHARGED BY
ITS LARGER COMPETITORS, WHO MAINTAINED SALES FORCES AND TRAVELING
REPRESENTATIVES.  BY OFFERING FIFTY PER CENT DISCOUNTS ON NARCOTICS, IT
"PUSHED" QUANTITY SALES.  INSTEAD OF LISTING NARCOTICS, LIKE MORPHINE
SULPHATE, IN QUANTITIES NOT EXCEEDING 100 TABLETS, AS DID MANY
COMPETITORS, DIRECT SALES FOR SOME TIME LISTED THEM IN 500, 1,000 AND
5,000 TABLET UNITS.  BY THIS POLICY IT ATTRACTED CUSTOMERS, INCLUDING A
DISPROPORTIONATELY LARGE GROUP OF PHYSICIANS WHO HAD BEEN CONVICTED OF
VIOLATING THE HARRISON ACT. 

ALL THIS WAS NOT WITHOUT WARNING, PURPOSE OR DESIGN.  IN 1936 THE
BUREAU OF NARCOTICS INFORMED PETITIONER IT WAS BEING USED AS A SOURCE
OF SUPPLY BY CONVICTED PHYSICIANS THE SAME AGENT ALSO WARNED THAT THE
AVERAGE PHYSICIAN WOULD ORDER NO MORE THAN 200 TO 400 QUARTER-GRAIN
TABLETS ANNUALLY  FN5  AND REQUESTED IT TO ELIMINATE THE LISTING OF
5,000 LOTS.  IT DID SO, BUT CONTINUED THE 1,000 AND 500 LOT LISTINGS AT
ATTRACTIVE DISCOUNTS.  IT FILLED NO MORE ORDERS FROM TATE FOR MORE THAN
1,000 TABLETS, BUT CONTINUED TO SUPPLY HIM FOR THAT AMOUNT AT HALF
GRAIN STRENGTH.  ON ONE OCCASION IN 1939 HE ORDERED ON ONE FORM 1,000
HALF AND 100 QUARTER GRAINS.  PETITIONER SENT HIM THE 1,000 AND ADVISED
HIM TO REORDER THE 100 ON A SEPARATE ORDER FORM.  IT ATTACHED TO THIS
LETTER A STICKER PRINTED IN RED SUGGESTING ANTICIPATION OF FUTURE NEEDS
AND TAKING ADVANTAGE OF DISCOUNTS OFFERED.  THREE DAYS LATER TATE
ORDERED 1,000 MORE TABLETS, WHICH PETITIONER SENT OUT.  IN 1940, AT THE
BUREAU'S SUGGESTION, DIRECT SALES ELIMINATED ITS FIFTY AND TEN PER CENT
DISCOUNTS.  BUT ON DOING SO IT TRANSLATED ITS DISCOUNT INTO ITS NET
PRICE. 

TATE DISTRIBUTED THE DRUGS TO AND THROUGH ADDICTS AND PURVEYORS,
INCLUDING JOHNSON, BLACK AND FOSTER.  ALTHOUGH HE PURCHASED FROM
PETITIONER AT LESS THAN TWO DOLLARS, HE SOLD AT PRICES RANGING FROM
FOUR TO EIGHT DOLLARS PER 100 HALF-GRAIN TABLETS AND PURVEYORS FROM HIM
CHARGED ADDICTS AS MUCH AS $25 PER HUNDRED. 

ON THIS EVIDENCE, THE GOVERNMENT INSISTS THE CASE IS IN DIFFERENT
POSTURE FROM THAT PRESENTED IN UNITED STATES V. FALCONE.  IT URGES THAT
THE EFFORT THERE WAS TO CONNECT THE RESPONDENTS WITH A CONSPIRACY
BETWEEN THE DISTILLERS ON THE BASIS OF THE AIDING AND ABETTING
STATUTE.  FN6  THE ATTEMPT FAILED BECAUSE THE COURT HELD THE EVIDENCE
DID NOT ESTABLISH THE RESPONDENTS KNEW OF THE DISTILLERS' CONSPIRACY. 
THERE WAS NO ATTEMPT TO LINK THE SUPPLIER AND THE DISTILLER IN A
CONSPIRACY INTER SESE.  BUT IN THIS CASE THAT TYPE OF PROBLEM IS
PRESENTED.  DIRECT SALES WAS TRIED, AND ITS CONVICTION HAS BEEN
SUSTAINED, ACCORDING TO THE CLAIM, ON THE THEORY IT COULD BE CONVICTED
ONLY IF IT WERE FOUND THAT IT AND TATE CONSPIRED TOGETHER TO SUBVERT
THE ORDER FORM PROVISIONS OF THE HARRISON ACT.  AS THE BRIEF PUTS THE
GOVERNMENT'S VIEW, "PETITIONER'S GUILT WAS NOT MADE TO DEPEND AT ALL
UPON ANY GUILT OF DR. TATE GROWING OUT OF HIS RELATIONSHIP TO
DEFENDANTS OTHER THAN PETITIONER OR UPON WHETHER THESE OTHER DEFENDANTS
WERE LINKED WITH THE TATE-DIRECT SALES CONSPIRACY." 

ON THE OTHER HAND, PETITIONER ASSERTS THIS CASE FALLS SQUARELY WITHIN
THE FACTS AND THE RULING IN THE FALCONE CASE.  IT INSISTS THERE IS NO
MORE TO SHOW CONSPIRACY BETWEEN ITSELF AND TATE THAN THERE WAS TO SHOW
CONSPIRACY BETWEEN THE RESPONDENT SELLERS AND THE PURCHASING DISTILLERS
THERE.  AT MOST, IT URGES, THERE WERE ONLY LEGAL SALES BY ITSELF TO DR.
TATE, ACCOMPANIED BY KNOWLEDGE HE WAS DISTRIBUTING GOODS ILLEGALLY. 
BUT THIS, IT CONTENDS, CANNOT AMOUNT TO CONSPIRACY ON ITS PART WITH
HIM, SINCE IN THE FALCONE CASE THE RESPONDENTS SOLD TO THE DISTILLERS,
KNOWING THEY WOULD USE THE GOODS IN ILLEGAL DISTILLATION. 

PETITIONER OBVIOUSLY MISCONSTRUES THE EFFECT OF THE FALCONE DECISION
IN ONE RESPECT.  THIS IS IN REGARDING IT AS DECIDING THAT ONE WHO SELLS
TO ANOTHER WITH KNOWLEDGE THAT THE BUYER WILL USE THE ARTICLE FOR AN
ILLEGAL PURPOSE CANNOT, UNDER ANY CIRCUMSTANCES, BE FOUND GUILTY OF
CONSPIRACY WITH THE BUYER TO FURTHER HIS ILLEGAL END.  THE ASSUMPTION
SEEMS TO BE THAT, UNDER THE RULING, SO LONG AS THE SELLER DOES NOT KNOW
THERE IS A CONSPIRACY BETWEEN THE BUYER AND OTHERS, HE CANNOT BE GUILTY
OF CONSPIRING WITH THE BUYER, TO FURTHER THE LATTER'S ILLEGAL AND KNOWN
INTENDED USE, BY SELLING GOODS TO HIM. 

THE FALCONE CASE CREATES NO SUCH SWEEPING INSULATION FOR SELLERS TO
KNOWN ILLICIT USERS.  THAT DECISION COMES DOWN MERELY TO THIS, THAT ONE
DOES NOT BECOME A PARTY TO A CONSPIRACY BY AIDING AND ABETTING IT,
THROUGH SALES OF SUPPLIES OR OTHERWISE, UNLESS HE KNOWS OF THE
CONSPIRACY; AND THE INFERENCE OF SUCH KNOWLEDGE CANNOT BE DRAWN MERELY
FROM KNOWLEDGE THE BUYER WILL USE THE GOODS ILLEGALLY.  THE GOVERNMENT
DID NOT CONTEND, IN THOSE CIRCUMSTANCES, AS THE OPINION POINTS OUT,
THAT THERE WAS A CONSPIRACY BETWEEN THE BUYER AND THE SELLER ALONE.  IT
CONCEDED THAT ON THE EVIDENCE NEITHER THE ACT OF SUPPLYING ITSELF NOR
THE OTHER PROOF WAS OF SUCH A CHARACTER AS IMPORTED AN AGREEMENT OR
CONCERT OF ACTION BETWEEN THE BUYER AND THE SELLER AMOUNTING TO
CONSPIRACY.  THIS WAS TRUE, NOTWITHSTANDING SOME OF THE RESPONDENTS
COULD BE TAKEN TO KNOW THEIR CUSTOMERS WOULD USE THE PURCHASED GOODS IN
ILLEGAL DISTILLATION. 

THE SCOPE OF THE CONCESSION MUST BE MEASURED IN THE LIGHT OF THE
EVIDENCE WITH REFERENCE TO WHICH IT WAS MADE.  THIS RELATED TO BOTH THE
VOLUME OF THE SALES AND TO CASUAL AND UNEXPLAINED MEETINGS OF SOME OF
THE RESPONDENTS WITH OTHERS WHO WERE CONVICTED AS CONSPIRATORS.  THE
COURT FOUND THIS EVIDENCE TOO VAGUE AND UNCERTAIN TO SUPPORT A FINDING
THE RESPONDENTS KNEW OF THE DISTILLERS' CONSPIRACY, THOUGH NOT
INADEQUATE IN SOME INSTANCES TO SUSTAIN ONE THAT THE SELLER KNEW THE
BUYER WOULD USE THE GOODS FOR ILLEGAL DISTILLING.  IT MUST BE TAKEN
ALSO THAT THE GOVERNMENT REGARDED THE SAME EVIDENCE AS INSUFFICIENT TO
SHOW THE SELLER CONSPIRED DIRECTLY WITH THE BUYER, BY SELLING TO HIM
WITH KNOWLEDGE OF HIS INTENDED ILLEGAL USE. 

WHETHER OR NOT IT WAS CONSISTENT IN MAKING THIS CONCESSION AND IN
REGARDING THE SAME EVIDENCE AS SUFFICIENT TO SHOW THAT THE SELLERS KNEW
OF AND JOINED THE BUYERS' DISTILLING RING IS NOT MATERIAL.  NOR NEED IT
BE DETERMINED WHETHER THE GOVERNMENT CONCEDED TOO MUCH.  WE DO NOT NOW
UNDERTAKE TO SAY WHAT THE COURT WAS NOT ASKED AND THEREFORE DECLINED TO
SAY IN THE FALCONE CASE, NAMELY, THAT THE EVIDENCE PRESENTED IN THAT
CASE WAS SUFFICIENT TO SUSTAIN A FINDING OF CONSPIRACY BETWEEN THE
SELLER AND THE BUYER INTER SESE.  FOR, REGARDLESS OF THAT, THE FACTS
PROVED IN THIS CASE SHOW MUCH MORE THAN THE EVIDENCE DID THERE. 

THE COMMODITIES SOLD THERE WERE ARTICLES OF FREE COMMERCE, SUGAR,
CANS, ETC.  THEY WERE NOT RESTRICTED AS TO SALE BY ORDER FORM,
REGISTRATION, OR OTHER REQUIREMENTS.  WHEN THEY LEFT THE SELLER'S STOCK
AND PASSED TO THE PURCHASER'S HANDS, THEY WERE NOT IN THEMSELVES
RESTRICTED COMMODITIES, INCAPABLE OF FURTHER LEGAL USE EXCEPT BY
COMPLIANCE WITH RIGID REGULATIONS, SUCH AS APPLY TO MORPHINE SULPHATE. 
THE DIFFERENCE IS LIKE THAT BETWEEN TOY PISTOLS OR HUNTING-RIFLES AND
MACHINE GUNS.  ALL ARTICLES OF COMMERCE MAY BE PUT TO ILLEGAL ENDS. 
BUT ALL DO NOT HAVE INHERENTLY THE SAME SUSCEPTIBILITY TO HARMFUL AND
ILLEGAL USE.  NOR, BY THE SAME TOKEN, DO ALL EMBODY THE SAME CAPACITY,
FROM THEIR VERY NATURE, FOR GIVING THE SELLER NOTICE THE BUYER WILL USE
THEM UNLAWFULLY.  GANGSTERS, NOT HUNTERS OR SMALL BOYS, COMPRISE THE
NORMAL PRIVATE MARKET FOR MACHINE GUNS.  SO DRUG ADDICTS FURNISH THE
NORMAL OUTLET FOR MORPHINE WHICH GETS OUTSIDE THE RESTRICTED CHANNELS
OF LEGITIMATE TRADE. 

THIS DIFFERENCE IS IMPORTANT FOR TWO PURPOSES.  ONE IS FOR MAKING
CERTAIN THAT THE SELLER KNOWS THE BUYER'S INTENDED ILLEGAL USE.  THE
OTHER IS TO SHOW THAT BY THE SALE HE INTENDS TO FURTHER, PROMOTE AND
COOPERATE IN IT.  THIS INTENT, WHEN GIVEN EFFECT BY OVERT ACT, IS THE
GIST OF CONSPIRACY.  WHILE IT IS NOT IDENTICAL WITH MERE KNOWLEDGE THAT
ANOTHER PURPOSES UNLAWFUL ACTION, IT IS NOT UNRELATED TO SUCH
KNOWLEDGE.  WITHOUT THE KNOWLEDGE, THE INTENT CANNOT EXIST.  UNITED
STATES V. FALCONE, SUPRA.  FN7  FURTHERMORE, TO ESTABLISH THE INTENT,
THE EVIDENCE OF KNOWLEDGE MUST BE CLEAR, NOT EQUIVOCAL.  IBID.  THIS,
BECAUSE CHARGES OF CONSPIRACY ARE NOT TO BE MADE OUT BY PILING
INFERENCE UPON INFERENCE, THUS FASHIONING WHAT, IN THAT CASE, WAS
CALLED A DRAGNET TO DRAW IN ALL SUBSTANTIVE CRIMES. 

THE DIFFERENCE BETWEEN SUGAR, CANS, AND OTHER ARTICLES OF NORMAL
TRADE, ON THE ONE HAND, AND NARCOTIC DRUGS, MACHINE GUNS AND SUCH
RESTRICTED COMMODITIES, ON THE OTHER, ARISING FROM THE LATTERS'
INHERENT CAPACITY FOR HARM AND FROM THE VERY FACT THEY ARE RESTRICTED,
MAKES A DIFFERENCE IN THE QUANTITY OF PROOF REQUIRED TO SHOW KNOWLEDGE
THAT THE BUYER WILL UTILIZE THE ARTICLE UNLAWFULLY.  ADDITIONAL FACTS,
SUCH AS QUANTITY SALES, HIGH-PRESSURE SALES METHODS, ABNORMAL INCREASES
IN THE SIZE OF THE BUYER'S PURCHASES, ETC., WHICH WOULD BE WHOLLY
INNOCUOUS OR NOT MORE THAN GROUND FOR SUSPICION IN RELATION TO
UNRESTRICTED GOODS, MAY FURNISH CONCLUSIVE EVIDENCE, IN RESPECT TO
RESTRICTED ARTICLES, THAT THE SELLER KNOWS THE BUYER HAS AN ILLEGAL
OBJECT AND ENTERPRISE.  KNOWLEDGE, EQUIVOCAL AND UNCERTAIN AS TO ONE,
BECOMES SURE AS TO THE OTHER.  SO FAR AS KNOWLEDGE IS THE FOUNDATION OF
INTENT, THE LATTER THEREBY ALSO BECOMES THE MORE SECURE. 

THE DIFFERENCE IN THE COMMODITIES HAS A FURTHER BEARING UPON THE
EXISTENCE AND THE PROOF OF INTENT.  THERE MAY BE CIRCUMSTANCES IN WHICH
THE EVIDENCE OF KNOWLEDGE IS CLEAR, YET THE FURTHER STEP OF FINDING THE
REQUIRED INTENT CANNOT BE TAKEN.  CONCEDEDLY, NOT EVERY INSTANCE OF
SALE OF RESTRICTED GOODS, HARMFUL AS ARE OPIATES, IN WHICH THE SELLER
KNOWS THE BUYER INTENDS TO USE THEM UNLAWFULLY, WILL SUPPORT A CHARGE
OF CONSPIRACY.  FN8  BUT THIS IS NOT TO SAY THAT A SELLER OF HARMFUL
RESTRICTED GOODS HAS LICENSE TO SELL IN UNLIMITED QUANTITIES, TO
STIMULATE SUCH SALES BY ALL THE HIGH-PRESSURE METHODS, LEGAL IF NOT
ALWAYS APPROPRIATE, IN THE SALE OF FREE COMMODITIES; AND THEREBY BRING
ABOUT SUBVERSION OF THE ORDER FORMS, WHICH OTHERWISE WOULD PROTECT HIM,
AND VIOLATION OF THE ACT'S OTHER RESTRICTIONS.  SUCH A VIEW WOULD
ASSUME THAT THE MARKET FOR OPIATES MAY BE DEVELOPED AS ANY OTHER
MARKET.  BUT THAT IS NOT TRUE.  MASS ADVERTISING AND BARGAIN-COUNTER
DISCOUNTS ARE NOT APPROPRIATE TO COMMODITIES SO SURROUNDED WITH
RESTRICTIONS.  THEY DO NOT CREATE NEW LEGAL DEMAND AND NEW CLASSES OF
LEGITIMATE PATRONS, AS THEY DO FOR SUGAR, TOBACCO AND OTHER FREE
COMMODITIES.  BEYOND NARROW LIMITS, THE NORMAL LEGAL MARKET FOR OPIATES
IS NOT CAPABLE OF BEING EXTENDED BY SUCH METHODS.  THE PRIMARY EFFECT
IS RATHER TO CREATE BLACK MARKETS FOR DOPE AND TO INCREASE ILLEGAL
DEMAND AND CONSUMPTION. 

WHEN THE EVIDENCE DISCLOSES SUCH A SYSTEM, WORKING IN PROLONGED
COOPERATION WITH A PHYSICIAN'S UNLAWFUL PURPOSE TO SUPPLY HIM WITH HIS
STOCK IN TRADE FOR HIS ILLICIT ENTERPRISE, THERE IS NO LEGAL OBSTACLE
TO FINDING THAT THE SUPPLIER NOT ONLY KNOWS AND ACQUIESCES, BUT JOINS
BOTH MIND AND HAND WITH HIM TO MAKE ITS ACCOMPLISHMENT POSSIBLE.  THE
STEP FROM KNOWLEDGE TO INTENT AND AGREEMENT MAY BE TAKEN.  THERE IS
MORE THAN SUSPICION, MORE THAN KNOWLEDGE, ACQUIESCENCE, CARELESSNESS,
INDIFFERENCE, LACK OF CONCERN.  THERE IS INFORMED AND INTERESTED
COOPERATION, STIMULATION, INSTIGATION.  AND THERE IS ALSO A "STAKE IN
THE VENTURE" WHICH, EVEN IF IT MAY NOT BE ESSENTIAL, IS NOT IRRELEVANT
TO THE QUESTION OF CONSPIRACY.  FN9  PETITIONER'S STAKE HERE WAS IN
MAKING THE PROFITS WHICH IT KNEW COULD COME ONLY FROM ITS ENCOURAGEMENT
OF TATE'S ILLICIT OPERATIONS.  IN SUCH A POSTURE THE CASE DOES NOT FALL
DOUBTFULLY OUTSIDE EITHER THE SHADOWY BORDER BETWEEN LAWFUL COOPERATION
AND CRIMINAL ASSOCIATION OR THE NO LESS ELUSIVE LINE WHICH SEPARATES
CONSPIRACY FROM OVERLAPPING FORMS OF CRIMINAL COOPERATION. 

UNLESS, THEREFORE, PETITIONER HAS BEEN EXEMPTED ARBITRARILY BY THE
STATUTE'S TERMS, THE EVIDENCE CLEARLY WAS SUFFICIENT TO SUSTAIN ITS
CONVICTION FOR CONSPIRING WITH TATE.  ITS POSITION HERE COMES DOWN
ULTIMATELY TO THE VIEW ALLUDED TO ABOVE THAT THE STATUTE HAS, IN FACT,
THUS IMMUNIZED ITS ACTION.  IN EFFECT THIS MEANS THE ONLY RESTRICTION
IMPOSED UPON IT, APART FROM OTHER PROVISIONS NOT NOW MATERIAL, SUCH AS
THOSE AFFECTING REGISTRATION, WAS THE REQUIREMENT IT SHOULD RECEIVE
FROM PURCHASING PHYSICIANS A SIGNED ORDER FORM FOR EACH SALE.  THAT
DONE, IN ITS VIEW, ITS FULL DUTY TO THE LAW WAS FULFILLED, IT ACQUIRED
A COMPLETE IMMUNITY, AND WHAT THE PHYSICIAN HAD DONE OR MIGHT DO WITH
THE DRUGS BECAME OF NO FURTHER CONCERN TO ITSELF.  SUCH A VIEW WOULD
LEGALIZE AN EXPRESS WRITTEN AGREEMENT BETWEEN A REGISTERED WHOLESALER
AND A PHYSICIAN FOR THE FORMER TO SUPPLY HIM WITH ALL HIS REQUIREMENTS
FOR DRUGS FOR BOTH LEGAL AND ILLEGAL DISTRIBUTION, CONDITIONED ONLY
UPON HIS USING THE REQUIRED ORDER FORMS.  THE STATUTE CONTAINS NO SUCH
EXEMPTION IN EXPLICIT TERMS.  NOR WAS ONE IMPLIED.  FN10 

THIS BEING TRUE, IT CAN MAKE NO DIFFERENCE THE AGREEMENT WAS A TACIT
UNDERSTANDING, CREATED BY A LONG COURSE OF CONDUCT AND EXECUTED IN THE
SAME WAY.  FN11  NOT THE FORM OR MANNER IN WHICH THE UNDERSTANDING IS
MADE, BUT THE FACT OF ITS EXISTENCE AND THE FURTHER ONE OF MAKING IT
EFFECTIVE BY OVERT CONDUCT ARE THE CRUCIAL MATTERS.  THE PROOF, BY THE
VERY NATURE OF THE CRIME, MUST BE CIRCUMSTANTIAL N12 AND THEREFORE
INFERENTIAL TO AN EXTENT VARYING WITH THE CONDITIONS UNDER WHICH THE
CRIME MAY BE COMMITTED.  BUT THIS DOES NOT MEAN EITHER THAT THE
EVIDENCE MAY BE EQUIVOCAL OR THAT PETITIONER IS EXEMPT FROM ITS EFFECTS
WHEN IT IS NOT SO, MERELY BECAUSE IN THE ABSENCE OF EXCESSES SUCH AS
WERE COMMITTED AND IN OTHER CIRCUMSTANCES THE ORDER FORM WOULD HAVE
GIVEN IT PROTECTION.  IT FOLLOWS THE MERE FACT THAT NONE OF
PETITIONER'S REPRESENTATIVES EVER MET DR. TATE FACE TO FACE OR HELD
PERSONAL COMMUNION WITH HIM IS IMMATERIAL.  CONSPIRACIES, IN SHORT, CAN
BE COMMITTED BY MAIL AND BY MAIL-ORDER HOUSES.  THIS IS TRUE,
NOTWITHSTANDING THE OVERT ACTS CONSIST SOLELY OF SALES, WHICH BUT FOR
THEIR VOLUME, FREQUENCY AND PROLONGED REPETITION, COUPLED WITH THE
SELLER'S UNLAWFUL INTENT TO FURTHER THE BUYER'S PROJECT, WOULD BE
WHOLLY LAWFUL TRANSACTIONS. 

ACCORDINGLY, THE JUDGMENT IS AFFIRMED. 

FN1  THE CONSPIRACY STATUTE, R.S. SEC. 5440, AS AMENDED, 18 U.S.C.
SEC. 88, PROVIDES: 

"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." 

THE PERTINENT PROVISIONS OF THE HARRISON ACT ARE SET OUT IN NOTE 3,
INFRA. 

FN2  38 STAT. 785, AS AMENDED, 26 U.S.C. SECS. 3220, 3221. 

FN3  38 STAT. 785, AS AMENDED, 26 U.S.C. SECS. 2553, 2554.  THE
INDICTMENT CHARGED THE CONSPIRACY'S OBJECT WAS TO VIOLATE THOSE
PORTIONS OF THE ACT (AS AMENDED) WHICH PROVIDE: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON REQUIRED TO REGISTER UNDER THE
PROVISIONS OF THIS PART OR SECTION 2551(A) TO IMPORT, MANUFACTURE,
PRODUCE, COMPOUND, SELL, DEAL IN, DISPENSE, DISTRIBUTE, ADMINISTER, OR
GIVE AWAY ANY OF THE AFORESAID DRUGS WITHOUT HAVING REGISTERED AND PAID
THE SPECIAL TAX AS IMPOSED BY THIS PART, OR SECTION 2551(A)."  26
U.S.C. SEC. 3224. 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO PURCHASE, SELL, DISPENSE, OR
DISTRIBUTE ANY OF THE DRUGS MENTIONED IN SECTION 2550(A) EXCEPT IN THE
ORIGINAL STAMPED PACKAGE OR FROM THE ORIGINAL STAMPED PACKAGE; ...  "
26 U.S.C. SEC. 2553. 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO SELL, BARTER, EXCHANGE, OR
GIVE AWAY ANY OF THE DRUGS MENTIONED IN SECTION 2550(A) EXCEPT IN
PURSUANCE OF A WRITTEN ORDER OF THE PERSON TO WHOM SUCH ARTICLE IS
SOLD, BARTERED, EXCHANGED, OR GIVEN, ON A FORM TO BE ISSUED IN BLANK
FOR THAT PURPOSE BY THE SECRETARY."  26 U.S.C. SEC. 2554(A). 

"IT SHALL BE UNLAWFUL FOR ANY PERSON TO OBTAIN BY MEANS OF SAID ORDER
FORMS ANY OF THE AFORESAID DRUGS FOR ANY PURPOSE OTHER THAN THE USE,
SALE, OR DISTRIBUTION THEREOF BY HIM IN THE CONDUCT OF A LAWFUL
BUSINESS IN SAID DRUGS OR IN THE LEGITIMATE PRACTICE OF HIS
PROFESSION."  26 U.S.C. SEC. 2554(G). 

FN4  THUS, ALTHOUGH THERE WERE MORE THAN 1,350 WHOLESALE DRUG DEALERS
IN THE UNITED STATES FROM WHOM PHYSICIANS MIGHT ORDER NARCOTICS
(TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS FOR THE YEAR ENDED DECEMBER
31, 1941, UNITED STATES TREASURY, BUREAU OF NARCOTICS), ABOUT 27% OF
THE 204 DOCTORS CONVICTED WERE PETITIONER'S CUSTOMERS. 

FN5  TESTIMONY IN THE RECORD ESTABLISHES THAT THE PRACTICE IN THE
PROFESSION IS TO GIVE ONE-EIGHTH OR ONE-FOURTH GRAIN DOSES, AND ONLY
RARELY ONE-HALF GRAIN DOSES.  CF. UNITED STATES V. BERMAN, 258 U.S.
280, 289.  FURTHERMORE, THERE WAS EXPERT TESTIMONY TO THE EFFECT THAT
CODEIN MAY BE, AND PREFERABLY IS, USED FOR THE SAME MEDICAL PURPOSES AS
MORPHINE SULPHATE.  DURING THE PERIOD FROM 1934 TO 1940, HOWEVER, THE
RECORD DOES NOT SHOW THAT TATE EVER ORDERED CODEIN FROM PETITIONER. 

FN6  R.S. SEC. 5323, 18 U.S.C. SEC. 550. 

FN7  ALTHOUGH THIS PRINCIPLE WAS THERE APPLIED TO AIDING AND ABETTING
A CONSPIRACY AMONG OTHERS, IT HAS AT LEAST EQUAL FORCE IN A SITUATION
WHERE THE CHARGE IS CONSPIRING WITH ANOTHER TO FURTHER HIS UNLAWFUL
CONDUCT, WITHOUT REFERENCE TO ANY CONSPIRACY BETWEEN HIM AND THIRD
PERSONS. 

FN8  THIS MAY BE TRUE, FOR INSTANCE, OF SINGLE OR CASUAL
TRANSACTIONS, NOT AMOUNTING TO A COURSE OF BUSINESS, REGULAR, SUSTAINED
AND PROLONGED, AND INVOLVING NOTHING MORE ON THE SELLER'S PART THAN
INDIFFERENCE TO THE BUYER'S ILLEGAL PURPOSE AND PASSIVE ACQUIESCENCE IN
HIS DESIRE TO PURCHASE, FOR WHATEVER END.  A CONSIDERABLE DEGREE OF
CARELESSNESS COUPLED WITH CASUAL TRANSACTIONS IS TOLERABLE OUTSIDE THE
BOUNDARY OF CONSPIRACY.  THERE MAY BE ALSO A FAIRLY BROAD LATITUDE OF
IMMUNITY FOR A MORE CONTINUOUS COURSE OF SALES, MADE EITHER WITH STRONG
SUSPICION OF THE BUYER'S WRONGFUL USE OR WITH KNOWLEDGE, BUT WITHOUT
STIMULATION OR ACTIVE INCITEMENT TO PURCHASE. 

FN9  CF. UNITED STATES V. FALCONE, 109 F.2D 579, 581(C.C.A.); AND
COMPARE BACKUN V. UNITED STATES, 112 F.2D 635, 637(C.C.A.); UNITED
STATES V. HARRISON, 121 F.2D 930, 933(C.C.A.); UNITED STATES V.
PECORARO, 115 F.2D 245, 246(C.C.A.). 

FN10  CF. GEBARDI V. UNITED STATES, 287 U.S. 112; SEE ALSO 81 U. OF
PA. L. REV. 474. 

FN11  GLASSER V. UNITED STATES, 315 U.S. 60, 80; UNITED STATES V.
MANTON, 107 F.2D 834, 839(C.C.A.); UNITED STATES V. HARRISON, 121 F.2D
930, 934(C.C.A.); CF. EASTERN STATES RETAIL LUMBER DEALERS' ASSN. V.
UNITED STATES, 234 U.S. 600; INTERSTATE CIRCUIT V. UNITED STATES, 306
U.S. 208. 

FN12  IBID.
..END :






OWENS V. UNION PACIFIC R. CO., 319 U.S. 715 


NO. 580.  ARGUED APRIL 7, 1943.  - DECIDED JUNE 14, 1943.  - 129 F.2D
1013, REVERSED. 


1.  UPON THE FACTS OF THIS CASE UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT, IT CAN NOT BE SAID THAT, AS A MATTER OF LAW, THERE WAS AN
ASSUMPTION OF RISK BY THE DECEDENT; HIS CONDUCT AMOUNTED, AT MOST, TO
CONTRIBUTORY NEGLIGENCE, WHICH MAY REDUCE THE DAMAGES BUT DOES NOT BAR
RECOVERY.  P. 724. 

2.  IT IS UNNECESSARY IN THIS CASE TO DETERMINE WHETHER THE 1939
AMENDMENT OF THE FEDERAL EMPLOYERS' LIABILITY ACT, ABOLISHING THE
DEFENSE OF ASSUMPTION OF RISK, APPLIES WHERE THE ACCIDENT OCCURRED
BEFORE, BUT THE SUIT IS BROUGHT AFTER, THAT ENACTMENT.  P. 725. 

OWENS, EXECUTRIX, V. UNION PACIFIC 

RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 317 U.S. 623, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PLAINTIFF IN AN ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS THE WIDOW OF AN EMPLOYEE OF RESPONDENT.  IN 1941 SHE
BROUGHT THIS SUIT UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C.
SECS. 51-59.  HER HUSBAND'S DEATH OCCURRED IN THE COURSE OF HIS
EMPLOYMENT AS FOREMAN OF A SWITCHING CREW ON FEBRUARY 16, 1939.  SHE
CLAIMS THIS WAS DUE TO RESPONDENT'S NEGLIGENCE.  PETITIONER SOUGHT TO
RECOVER IN ONE CAUSE OF ACTION FOR OWENS' SUFFERING BEFORE DEATH AND IN
ANOTHER FOR HIS DEATH.  THE TRIAL JUDGE WITHDREW FROM THE JURY, FOR
INSUFFICIENCY OF PROOF, FOUR OF THE FIVE SEPARATE GROUNDS OF NEGLIGENCE
ALLEGED.  THE CASE WAS SUBMITTED ON THE REMAINING GROUND, AN ALLEGED
VIOLATION OF COMPANY RULE 30, AND THE DEFENSES OF ASSUMPTION OF RISK
AND CONTRIBUTORY NEGLIGENCE.  RULE 30 PROVIDED: 

"ENGINE BELL MUST BE RUNG WHEN AN ENGINE IS ABOUT TO MOVE AND WHEN
APPROACHING OR PASSING PUBLIC CROSSINGS AT GRADE, STATIONS, TUNNELS AND
SNOWSHEDS."  THE JURY FOUND FOR PETITIONER AND A JUDGMENT WAS ENTERED
ON THE VERDICT.  THE COURT OF APPEALS REVERSED WITHOUT CONSIDERING THE
QUESTIONS OF NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE.  IT HELD THAT AS A
MATTER OF LAW OWENS ASSUMED THE RISK OF DEATH IN THE ACTIVITIES IN
WHICH HE WAS ENGAGED WHEN THE ACCIDENT OCCURRED.  129 F.2D 1013.  WE
THINK THIS RULING WAS ERRONEOUS. 

AT THE TIME OF THE ACCIDENT AND FOR FIFTEEN YEARS BEFORE, OWENS WAS
EMPLOYED IN THE SPOKANE RAILROAD YARDS AS AN ENGINE OR SWITCHING CREW
FOREMAN.  HIS CREW WAS COMPOSED OF HIMSELF, THE ENGINEER, THE FIREMAN,
AND TWO OTHERS.  THE CREW'S WORK CONSISTED IN SHUTTLING FREIGHT CARS
ABOUT THE YARDS IN ACCORDANCE WITH THE REQUIREMENTS OF THE RAILROAD'S
FREIGHT SCHEDULE. 

THE FATAL SWITCHING MANEUVER WAS THE SHIFTING OF TWO BOXCARS FROM
THEIR POSITION ON THE "LEAD" TRACK, WEST OF A SWITCH DESIGNATED NO. 7,
TO TRACK 13.  TO ACCOMPLISH THIS THE ENGINE WAS REQUIRED TO PROCEED
WESTERLY ALONG THE "LEAD" LINE UNTIL IT HOOKED UP THE TWO FREIGHT CARS,
THEN TO BACK THE TRAIN THUS FORMED ALONG THAT LINE OVER SWITCH 7 AND,
AFTER THE SWITCH WAS SET, TO "KICK" THE CARS SO THEY WOULD ROLL OVER
THE SWITCH ON TO TRACK 13, WHILE THE ENGINE STOPPED AND STARTED BACK TO
GET ANOTHER CAR.  THE ENGINEER'S CAB WAS ON THE NORTH SIDE OF THE
TRACK, THE SWITCH STAND AND HANDLE WERE ON THE SOUTH SIDE. 

WHILE THE ENGINE WAS SLOWLY BACKING AFTER BEING COUPLED TO THE
FREIGHT CARS, OWENS AND ONE OF HIS MEN, KOEFOD, RODE ON THE NORTH SIDE
OF THE TRAIN, CLINGING TO THE FACING STIRRUPS AND HANDRAILS BETWEEN THE
TWO BOXCARS.  AS THE CARS CROSSED THE SWITCH, OWENS DROPPED OFF ON THE
NORTH SIDE, TELLING KOEFOD TO "LET THESE CARS GO 13."  WHEN THE TRAIN
HAD PASSED, OWENS CROSSED TO THE SOUTH SIDE IN ORDER TO SET THE
SWITCH.  THE TRAIN STOPPED WITH ITS WESTERN END AT A DISTANCE ESTIMATED
VARIOUSLY AT SEVEN TO THIRTY FEET FROM, BUT IN ANY EVENT UNUSUALLY
CLOSE TO, THE SWITCH POINT.  KOEFOD DROPPED OFF ON THE NORTH SIDE OF
THE TRACK AND TOOK A POSITION ABOUT 20 FEET NORTH OF THE TRACK FROM
WHICH HE COULD SEE THE SWITCH POINTS BUT COULD NOT SEE EITHER THE
SWITCH HANDLE OR OWENS, BOTH BEING OBSTRUCTED FROM HIS VIEW BY THE
CARS.  SIMILARLY, THE ENGINEER, ON THE NORTH SIDE OF THE TRAIN, COULD
NOT SEE OWENS.  THE OTHER TWO MEN ALSO WERE OUT OF VISION.  WHEN KOEFOD
SAW THE SWITCH POINT MOVE INTO LINE, WITHOUT AWAITING ANY SIGN FROM
OWENS HE SIGNALLED THE ENGINEER TO "KICK" THE CARS.  THIS THE LATTER
PROMPTLY DID.  NO WARNING WAS GIVEN TO OWENS EITHER BY BELL, BY
WHISTLE, OR BY CALL ON STARTING THE "KICK."  IT IS IMPORTANT TO NOTE
THAT, ALL TOLD, BETWEEN THE STOPPING OF THE RECEDING TRAIN AND THE
"KICK" ABOUT TEN SECONDS ELAPSED. 

IN THIS INTERVAL, OWENS, HAVING SET THE SWITCH, BEGAN TO WALK ACROSS
THE TRACK TO THE NORTH SIDE.  NO EVIDENCE WAS AVAILABLE OR INTRODUCED
TO SHOW HIS REASON FOR DOING SO.  FN1  SINCE HE WAS LOOKING NORTHWARD,
HE DID NOT SEE THE "KICKED" CARS COMING TOWARD HIM UNTIL TOO LATE.  HE
THEN TRIED TO LEAP OUT OF THE WAY, BUT FAILED AND WAS STRUCK BY THE
CARS, WHICH ROLLED OVER HIM.  HIS LEGS WERE SEVERED FROM HIS BODY. 
ALTHOUGH HE WAS REMOVED TO A HOSPITAL ALMOST AT ONCE, HE DIED WITHIN A
FEW HOURS. 

IF THIS WERE ALL THE EVIDENCE, THE CASE WOULD BE CLEARLY ONE IN WHICH
THE JURY MIGHT FIND THERE WAS NEGLIGENCE ON THE PART OF KOEFOD OR THE
ENGINEER, OR BOTH, AND THAT OWENS' CONDUCT AMOUNTED TO NO MORE THAN
CONTRIBUTORY NEGLIGENCE, IF IT WAS THAT. 

BUT THE COMPANY SOUGHT TO AVOID THE EFFECT OF THESE FACTS BY PROVING
THAT RULE 30 WAS NOT APPLICABLE IN ORDINARY SWITCHING OPERATIONS, THAT
IT WAS NOT CUSTOMARY TO RING THE ENGINE'S BELL DURING THEM, THAT IT WAS
CUSTOMARY FOR THE MAN AT THE SWITCH HANDLE TO REMAIN THERE UNTIL
MOVEMENT OF THE "KICKED" CARS STOPPED, THAT IT WAS THE PRACTICE FOR THE
MAN IN KOEFOD'S POSITION TO SIGNAL FOR THE KICK WITHOUT WAITING EITHER
FOR A SIGNAL FROM THE MAN AT THE SWITCH, OR TO SEE WHETHER THE LATTER
REMAINED THERE, AND THAT OWENS HAD FOLLOWED THESE PRACTICES IN THE
PAST. 

THE PURPOSE OF THIS EVIDENCE APPARENTLY WAS TWOFOLD.  THE FIRST
OBJECT WAS TO SHOW THAT THE COMPANY WAS NOT NEGLIGENT.  IT SOUGHT
PARTICULARLY TO AVOID THE EFFECT OF A FINDING THAT THE ENGINEER'S
FAILURE TO RING THE BELL WAS A VIOLATION OF RULE 30 AND THEREFORE WAS
NEGLIGENCE PER SE.  BUT THE EVIDENCE ALSO WAS DIRECTED TO PROVE THAT,
APART FROM THE RINGING OF THE BELL, NEITHER KOEFOD NOR THE ENGINEER
ACTED NEGLIGENTLY IN ASSUMING THAT OWENS KNEW THE MATTERS SOUGHT TO BE
PROVED AND WOULD REMAIN AT THE SWITCH UNTIL THE CARS HAD PASSED BY; AND
THEREFORE THAT THEY ACTED PROPERLY IN GOING AHEAD WITHOUT TAKING THE
PRECAUTIONS WHICH WOULD HAVE BEEN NECESSARY IF THEY HAD NOT BEEN
ENTITLED TO MAKE THIS ASSUMPTION. 

THE SAME EVIDENCE ALSO WAS THE BASIS OF THE COMPANY'S CONTENTION THAT
OWENS ASSUMED THE RISK OF HIS INJURY.  ALTHOUGH THE COURT OF APPEALS
DECLINED TO DETERMINE WHETHER IT WOULD SUPPORT A LEGAL CONCLUSION THERE
WAS NO NEGLIGENCE, IT APPARENTLY ACCEPTED THE COMPANY'S VIEW THAT IT
ESTABLISHED ASSUMPTION OF RISK AS A MATTER OF LAW. 

THE DIFFICULTY WITH THIS RULING IS THAT IT IGNORES CONFLICTING
EVIDENCE PRESENTED ON BEHALF OF PETITIONER.  THIS CONSISTED IN
TESTIMONY TO THE EFFECT THAT THE MEN IN THE SWITCHING CREW CUSTOMARILY
"LOOK OUT" FOR EACH OTHER, PARTICULARLY WHEN A MAN WAS NOT IN SIGHT
DURING OPERATIONS, THAT ONE IN KOEFOD'S POSITION WOULD NOT SIGNAL FOR
THE "KICK" UNTIL HE SAW THAT THE MAN AT THE SWITCH WAS OUT OF HARM'S
WAY, AND THAT THERE WAS A CUSTOM TO WAIT BEFORE ORDERING THE "KICK"
UNTIL THE MAN AT THE SWITCH SIGNALLED TO THE MAN IN KOEFOD'S POSITION. 

IN THIS STATE OF THE RECORD THERE WAS A SQUARE CLASH OF EVIDENCE
BEARING ON WHETHER OWENS KNEW THAT THE CARS WOULD BE "KICKED" WITHOUT
ANY PRIOR INDICATION TO HIM - EITHER BY RINGING THE BELL OR BY SIGNAL
FROM OTHERS IN THE CREW - AND DECIDED TO CROSS THE TRACK ANYWAY.  AND
THESE QUESTIONS WERE CRUCIAL, IN THE CIRCUMSTANCES, TO WHETHER HE
VOLUNTARILY ASSUMED THE RISK OF THE CONDUCT WHICH BROUGHT ABOUT HIS
DEATH. 

THAT IS TRUE, UNLESS IT IS TO BE HELD THAT OWENS, WHEN HE ACCEPTED
AND CONTINUED IN HIS EMPLOYMENT, KNEW THAT RISKS OF THE GENERAL
CHARACTER WHICH CAUSED HIS DEATH WOULD BE INCURRED AND, BY TAKING OR
CONTINUING IN THE WORK, ACCEPTED THEIR BURDEN; IN OTHER WORDS, NOT THAT
HE KNEW OF AND ACCEPTED THE PARTICULAR RISK AT THE TIME IT DESCENDED,
BUT KNEW GENERALLY THAT RISKS OF SUCH A CHARACTER MIGHT FALL AND
ELECTED IN ADVANCE TO SUSTAIN THEM.  WE THINK NO SUCH VIEW IS
CONSISTENT WITH THE STATUTE'S PROVISIONS. 

RECENTLY THIS COURT REVIEWED "THE MAZE OF LAW WHICH CONGRESS SWEPT
INTO THE DISCARD,"  FN2 WHEN IN 1939 IT AMENDED THE EMPLOYERS'
LIABILITY ACT TO ABOLISH THE DEFENSE OF ASSUMPTION OF RISK.  FN3 IN
VIEW OF THE AMENDMENT, NO GOOD PURPOSE WOULD BE SERVED IN GOING OVER
THIS MORASS AGAIN MERELY TO DISPOSE OF THIS CASE.  BUT WE POINT TO A
FEW LODESTARS. 

THE COMMON-LAW DEFENSES, ASSUMPTION OF RISK, CONTRIBUTORY NEGLIGENCE,
AND THE FELLOW-SERVANT RULE WERE ORIGINATED AND DEVELOPED IN COMMON
GROUND.  FN4  NOT ENTIRELY IDENTICAL IN CONCEPTION, THEY CONJOINED AND
OVERLAPPED IN MANY APPLICATIONS.  THE OVERLAPPING AREAS FIRST
CONCEALED, THEN CREATED A CONFUSION WHICH ONLY SERVED TO CREATE MORE;
FN5  SO THAT IN TIME THE THREE BECAME MORE, RATHER THAN LESS,
INDISTINGUISHABLE, AND ASSUMPTION OF RISK TOOK OVER ALSO, IN MISGUIDED
APPELLATION, LARGE REGIONS OF THE LAW OF NEGLIGENCE.  WHAT IN FACT WAS
ABSENCE OF DEPARTURE FROM DUE CARE BY THE DEFENDANT CAME TO BE LABELLED
"ASSUMPTION OF RISK."  FN6  APART FROM THIS EFFECT, SO LONG AS THE AREA
OF APPLICATION WAS OVERLAPPING  FN7  AND EACH WHEN ESTABLISHED HAD THE
EFFECT OF DEFEATING LIABILITY, IT WAS NOT A MATTER OF GREAT MOMENT TO
DISTINGUISH THE DEFENSES SHARPLY OR CAREFULLY, WHEN THE FACTS WOULD
SUSTAIN ONE. 

BUT UNDER THE EMPLOYERS' LIABILITY ACT PRIOR TO 1939 THERE WAS
INESCAPABLE REASON FOR MAKING ACCURATE DIFFERENTIATION OF THE THREE. 
FOR EACH PRODUCED DIFFERENT CONSEQUENCES.  ASSUMPTION OF RISK REMAINED
A COMPLETE DEFENSE TO LIABILITY.  CONTRIBUTORY NEGLIGENCE MERELY
REDUCED THE DAMAGES.  FN8  THE FELLOW-SERVANT RULE WAS ABOLISHED.  FN9 

THESE DISTINCT CONSEQUENCES REQUIRED DISTINCT TREATMENT OF THE THREE
CONCEPTIONS.  THIS MEANT THAT SO FAR AS ASSUMPTION OF RISK, WHICH
REMAINED A COMPLETE DEFENSE, HAD SWALLOWED UP CONTRIBUTORY NEGLIGENCE
AND THE FELLOW-SERVANT RULE, THE LATTER, HAVING DIFFERENT EFFECTS,
SHOULD BE WITHDRAWN FROM ITS ENFOLDING EMBRACE.  IN THAT WAY ONLY COULD
THE CLEAR LEGISLATIVE MANDATE BE CARRIED OUT AND THE DISTINCT
CONSEQUENCES ATTRIBUTED BY IT TO EACH BE ATTAINED.  TO PERMIT
ASSUMPTION OF RISK STILL TO ENGULF ALL THE PROPER TERRITORY OF
CONTRIBUTORY NEGLIGENCE AND THE FELLOW-SERVANT RULE WOULD BE ONLY AND
PLAINLY TO NULLIFY CONGRESS' COMMAND. 

UNFORTUNATELY THE INJUNCTION HAS NOT BEEN FOLLOWED CONSISTENTLY. 
THERE ARE DECISIONS WHICH, IN THE GUISE OF APPLYING ASSUMPTION OF RISK,
DO NO MORE THAN SHIFT TO THE INJURED EMPLOYEE THE BURDEN OF HIS FELLOW
SERVANTS' NEGLIGENCE, WHILE OTHERS APPEAR TO IDENTIFY THE DOCTRINE WITH
MERE CONTRIBUTORY NEGLIGENCE.  OLD CONFUSIONS DIE HARD.  AND IN THIS
INSTANCE SOME REFUSED TO DIE AT ALL OR DID SO ONLY INTERMITTENTLY.  WE
DO NOT NOW ATTEMPT THE REFINED DISTINCTIONS OR THE BROADER
OBLITERATIONS WHICH MIGHT BE REQUIRED, IF THE 1939 AMENDMENT HAD NOT
BECOME LAW, IN ORDER TO GIVE EFFECT TO THE ORIGINAL CONGRESSIONAL
PURPOSE.  IT IS WHOLLY INCONSISTENT WITH THAT OBJECT AND WITH THE
STATUTE'S WORDING TO HOLD THAT THE EMPLOYEE, MERELY BY ACCEPTING OR
CONTINUING IN THE EMPLOYMENT, ASSUMES THE RISK OF HIS FELLOW-SERVANTS'
NEGLIGENCE OR THAT CONDUCT ON HIS PART IN A PARTICULAR SITUATION WHICH
AMOUNTS TO NO MORE THAN CONTRIBUTORY NEGLIGENCE CAN HAVE THAT EFFECT. 

IN THIS CASE, IF THERE WAS NEGLIGENCE UPON THE EMPLOYER'S PART, AS TO
WHICH WE EXPRESS NO OPINION, IT LAY EITHER IN THE COMPANY'S FAILURE TO
ENFORCE RULE 30, IF THAT RULE WAS APPLICABLE TO SWITCHING OPERATIONS,
OR IN THE NEGLIGENCE OF A FELLOW SERVANT OF OWENS AND NOTHING MORE THAN
THAT.  FN10  IN THE FORMER CASE, ASSUMPTION OF RISK WOULD NOT APPLY, AT
ANY RATE AS A MATTER OF LAW, IN THE ABSENCE OF CONCLUSIVE PROOF THAT
THE EMPLOYEE KNEW THE RULE WAS NOT APPLICABLE OR HAD BEEN ABANDONED AND
ELECTED TO TAKE HIS CHANCES IN CROSSING THE TRACK. 

IF WE TURN TO THE OTHER ALTERNATIVE, THE FELLOW-SERVANT DOCTRINE
CONTEMPLATED THAT AN EMPLOYEE KNEW AND ASSUMED, WHEN HE ACCEPTED
EMPLOYMENT, THE RISKS WHICH NEGLIGENCE OF HIS FELLOW EMPLOYEES MIGHT
CREATE.  IT WAS IN FACT A BRANCH OF ASSUMPTION OF RISK.  WHEN THEREFORE
CONGRESS ABOLISHED THE FELLOW-SERVANT RULE AS A DEFENSE UNDER THE
STATUTE, IT NECESSARILY ABOLISHED THE DEFENSE OF ASSUMPTION OF RISK TO
THIS EXTENT.  IN OTHER WORDS, IT ELIMINATED THE GENERAL ANTICIPATION OF
FELLOW-SERVANTS' NEGLIGENCE, UPON WHICH THE FELLOW-SERVANT RULE WAS
FOUNDED.  IF ANYTHING OF ASSUMPTION OF RISK REMAINED IN RELATION TO THE
NEGLIGENCE OF A FELLOW EMPLOYEE, IT WAS SUCH AS REQUIRED A SHOWING THAT
THE INJURED ONE KNEW OF AND ACCEPTED THE RISK IN THE PARTICULAR
INCIDENT OR SITUATION WHICH BROUGHT ABOUT HIS INJURY.  THERE WAS
THEREFORE IN THIS CASE, CONSISTENTLY WITH THE STATUTE, NO GENERAL
ASSUMPTION BY OWENS, BY VIRTUE OF HIS ACCEPTANCE OR RETENTION OF THE
WORK, OF THE RISK WHICH CAUSED HIS DEATH IN SO FAR AS IT CONSISTED IN
NEGLIGENCE BY KOEFOD OR THE ENGINEER. 

WHAT REMAINED OF THE DEFENSE, THEREFORE, NARROWS THE INQUIRY TO
WHETHER OWENS CAN BE SHOWN TO HAVE ANTICIPATED AND DECIDED TO CHANCE
THE PARTICULAR RISK HERE CREATED BY THE NEGLIGENCE OF HIS FELLOW
EMPLOYEES.  CF. REED V. DIRECTOR GENERAL OF RAILROADS, 258 U.S. 92.  AS
HAS BEEN SHOWN, RESPONDENT HAS NOT SUSTAINED THIS BURDEN.  THAT IS
TRUE, WHETHER THE INJURY IS COUCHED IN TERMS OF OWENS' ACTUAL KNOWLEDGE
FN11 AND DELIBERATE CHOICE  FN12  OR OF THE "OBVIOUS" AND "APPARENT"
CHARACTER OF THE RISK.  FN13  FOR, TO PREVAIL ON THIS DEFENSE,
RESPONDENT HAD THE BURDEN OF PERSUADING THE JURY THAT THE RISK OF BEING
RUN DOWN WAS "SO PLAINLY OBSERVABLE" THAT OWENS WAS IN FACT AWARE OF IT
AND DECIDED TO CHANCE IT.  LESS THAN THAT, UNDER THIS STATUTE, WOULD BE
NO MORE THAN CONTRIBUTORY NEGLIGENCE, WHICH CANNOT BE INTERCHANGED OR
OVERLAPPED WITH ASSUMPTION OF RISK AS A DEFENSE.  THE JURY DECIDED THAT
RESPONDENT HAD NOT SUSTAINED THE BURDEN IMPOSED.  WE CANNOT AGREE WITH
THE COURT OF APPEALS THAT AS A MATTER OF LAW IT HAS.  THE RECORD SHOWS
NEITHER SUCH CLEAR EVIDENCE OF AN INFORMED AND DELIBERATE CHOICE BY
OWENS AS WOULD PRECLUDE A CONTRARY VERDICT NOR SO "OBVIOUS" OR
"APPARENT" A DANGER AS WOULD DO SO.  FN14    IF THERE WAS NEGLIGENCE BY
THE RESPONDENT, THE STATUTE REQUIRES SOMETHING MORE THAN CONTRIBUTORY
NEGLIGENCE TO DEFEAT RECOVERY, THOUGH THAT MAY MINIMIZE THE DAMAGES. 
THE JURY FOUND THIS ISSUE IN FAVOR OF THE PLAINTIFF.  AND THE COURT OF
APPEALS DID NOT PURPORT TO DEAL WITH IT AND DID NOT DO SO UNLESS, IN
THE GUISE OF FINDING ASSUMPTION OF RISK, IT IDENTIFIED THE TWO.  SINCE
IT DID NOT DEAL WITH THE QUESTION, WE DO NOT DECIDE IT.  BUT WE THINK
IT IS CLEAR THAT ON THE FACTS OWENS' CONDUCT AMOUNTED TO NO MORE THAN
CONTRIBUTORY NEGLIGENCE, IF IT WAS THAT. 

WHETHER THE TRIAL COURT PROPERLY CHARGED THE JURY THAT A VIOLATION OF
COMPANY RULE 30 WAS IPSO FACTO NEGLIGENCE  FN15  AND TOOK FROM IT THE
OTHER CLAIMED GROUNDS OF NEGLIGENCE  FN16  ARE QUESTIONS THE COURT OF
APPEALS DID NOT REACH AND WE THEREFORE HAVE NO OCCASION TO DECIDE. 
SIMILARLY, IN VIEW OF OUR CONCLUSION ON ASSUMPTION OF RISK, WE HAVE NO
OCCASION TO DETERMINE WHETHER THE 1939 AMENDMENT TO THE FEDERAL
EMPLOYERS' LIABILITY ACT, ABOLISHING THAT DEFENSE, OPERATES WHERE THE
ACCIDENT OCCURRED BEFORE ITS ENACTMENT BUT SUIT IS BROUGHT AFTER. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT OF
APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  INDEED, THE ONLY EVIDENCE ON THE QUESTION OF DECEDENT'S
MOVEMENTS DURING THIS TIME IS FURNISHED BY AN ENGINEER WHO SAW THE
ACCIDENT FROM THE CAB OF A NEARBY ENGINE.  HE TESTIFIED: 

"HE WAS LOOKING NORTH - JUST FOR AN INSTANT HE TURNED HIS HEAD DOWN
TO THE YARD AND WHEN HE STRAIGHTENED HIS HEAD UP - WHY JUST BEFORE HE
STRAIGHTENED HIS HEAD UP I GOT SCARED AND I SAYS 'THEM CARS ARE GOING
TO CORNER HIM' - THEY WERE COMING ABOUT SIX MILES AN HOUR - I HAD NO
WAY OF TELLING HOW FAST THEY WERE GOING - I HAD A HEAD END VIEW OF THE
CARS AND BEFORE I COULD DO A THING, OR GIVE HIM ANY WARNING, I WAS TOO
FAR AWAY - JUST AS HE TURNED AROUND HE SEEN THE CARS COMING ALMOST ON
TOP OF HIM - HE DIDN'T HAVE TIME TO GET OUT OF THE WAY - HE THROWED
HIMSELF BACK AND SIDEWAYS, AND AS I RECOLLECT A DRAW BAR HIT HIM ABOUT
IN HERE - HIS RIGHT SIDE - " 

Q. "WHAT HAPPENED TO HIM?" 

A. "IT KNOCKED HIM DOWN RIGHT IN THE CENTER OF THE TRACK; AS NEAR AS
I COULD UNDERSTAND THE FIRST PART OF THE TRUCKS RUN OVER HIM." 

FN2  TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54. 

FN3  53 STAT. 1404, 45 U.S.C. SEC. 54. 

FN4  CF. PRIESTLEY V. FOWLER, 3 M. & W. 1(1837); FARWELL V. BOSTON &
WORCESTER R. CORP., 4 METC.  (MASS.)  49; BOHLEN, VOLUNTARY ASSUMPTION
OF RISK, 20 HARV. L. REV. 14, 91(1906); BUTTERFIELD V. FORRESTER, 11
EAST 60(1809); DAVIES V. MANN, 10 M. & W. 546(1842); BOHLEN,
CONTRIBUTORY NEGLIGENCE, 21 HARV. L. REV. 233(1908). 

FN5  CF. TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54, AND
AUTHORITIES CITED. 

FN6  IBID., CONCURRING OPINION OF MR. JUSTICE FRANKFURTER; HOCKING
VALLEY RY. CO. V. WHITAKER, 299 F. 416(C.C.A.); HARPER, TORTS (1933)
292, AND AUTHORITIES CITED, NOTE 11; BOHLEN, VOLUNTARY ASSUMPTION OF
RISK, 20 HARV. L. REV. 14, 91. 

FN7  CF. BOHLEN, CONTRIBUTORY NEGLIGENCE, 21 HARV. L. REV. 233, 243,
ET SEQ. 

FN8  35 STAT. 66. 

FN9  35 STAT. 65; CHESAPEAKE & OHIO RY. CO. V. DE ATLEY, 241 U.S.
310; SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1; REED V. DIRECTOR
GENERAL OF RAILROADS, 258 U.S. 92. 

FN10  THIS IS TRUE WHETHER THE FELLOW-SERVANT'S NEGLIGENCE CONSISTED
IN A VIOLATION OF RULE 30, AS THE TRIAL COURT PERMITTED THE JURY TO
FIND, OR IN ANY OF THE OTHER ALLEGEDLY NEGLIGENT ACTS OR OMISSIONS,
WHICH THE COURT REFUSED TO SUBMIT TO THE JURY.  FOR IN ANY EVENT THE
CONDUCT CLAIMED TO BE NEGLIGENT WAS THAT OF KOEFOD OR THE ENGINEER,
BOTH OF WHOM WERE FELLOW SERVANTS.  WE CANNOT ASSUME THAT THE COURT,
WHEN IT CAST ITS DECISION IN TERMS OF ASSUMPTION OF RISK, INTENDED TO
RULE THAT THERE WAS NO EVIDENCE OF NEGLIGENCE (CF. NOTE 6, SUPRA),
SINCE ITS OPINION EXPRESSLY DISCLAIMS DETERMINING THE PROPER
CONSTRUCTION OF RULE 30, WHETHER ITS VIOLATION WOULD CONSTITUTE
NEGLIGENCE PER SE, AND THE OTHER QUESTIONS RAISED BY THE PARTIES ON THE
APPEAL. 

FN11  CF. 3 LABATT, MASTER AND SERVANT (1913), SECS. 1190-1192; YORK
V. CHICAGO, M. & ST. P.R. CO., 184 WIS. 110, 198 N.W. 377; DOLLAR
SAVINGS FUND & TRUST CO. V. PENNSYLVANIA CO., 272 PA. 364, 116 A. 299;
RUMMELL V. DILWORTH, PORTER & CO., 111 PA. 343, 2 A. 355, 363. 

FN12  CF. THOMAS V. QUARTERMAINE, L.R. 18 Q.B.D. 685; YARMOUTH V.
FRANCE, L.R. 19 Q.B.D. 647; SMITH V. BAKER & SONS (1891) A.C. 325. 

FN13  CF. SEABOARD AIR LINE RY. CO. V. HORTON, 233 U.S. 492; GILA
VALLEY, G. & N. RY. CO. V. HALL, 232 U.S. 94; CHESAPEAKE & OHIO RY. CO.
V. DE ATLEY, 241 U.S. 310; CHICAGO & NORTH WESTERN R. CO. V. BOWER, 241
U.S. 470; CHESAPEAKE & OHIO RY. CO. V. PROFFITT, 241 U.S. 462; AND
COMPARE SCHLEMMER V. BUFFALO, R. & P. RY. CO., 205 U.S. 1, 220 U.S.
590; BOHLEN, CONTRIBUTORY NEGLIGENCE, 21 HARV. L. REV. 233; ALEXANDER,
RE-THINKING NEGLIGENCE, 11 MISS.  L.J. 290. 

FN14  CF. GILA VALLEY, G. & N. RY. CO. V. HALL, 232 U.S. 94;
CHESAPEAKE & OHIO RY. CO. V. DE ATLEY, 241 U.S. 310; CHESAPEAKE & OHIO
RY. CO. V. PROFFITT, 241 U.S. 462; CHICAGO, R.I. & P. RY. CO. V. WARD,
252 U.S. 18; CHICAGO & NORTH WESTERN RY. CO. V. BOWER, 241 U.S. 470. 

FN15  CF. GILDNER V. BALTIMORE & OHIO R. CO., 90 F.2D 635(C.C.A.);
PACHECO V. NEW YORK, N.H. & H.R. CO., 15 F.2D 467(C.C.A.). 

FN16  "(A)  THAT DEFENDANT AND DEFENDANT'S EMPLOYEES CARELESSLY AND
NEGLIGENTLY FAILED AND NEGLECTED TO KEEP A PROPER LOOKOUT FOR
PLAINTIFF'S DECEDENT AND TO ASCERTAIN HIS WHEREABOUTS BEFORE MOVING
SAID CARS; WHICH SAID LOOKOUT WAS THE CUSTOM AND PRACTICE KNOWN TO AND
ADOPTED BY DEFENDANT; (B) THAT DEFENDANT AND DEFENDANT'S EMPLOYEES
CARELESSLY AND NEGLIGENTLY MOVED SAID CARS UPON SAID TRACK WITHOUT ANY
NOTICE OR WARNING WHATSOEVER TO PLAINTIFF'S DECEDENT; (C) THAT
DEFENDANT AND DEFENDANT'S YARDMEN CARELESSLY AND NEGLIGENTLY FAILED AND
NEGLECTED TO RECEIVE A HAND OR OTHER SIGNAL FROM PLAINTIFF'S DECEDENT
BEFORE SIGNALING DEFENDANT'S ENGINEER TO KICK OR MOVE THE AFORESAID
CARS; THE RECEIPT OF WHICH SAID SIGNAL WAS THE CUSTOM AND PRACTICE
KNOWN TO AND ADOPTED BY DEFENDANT; ...  (E) THAT DEFENDANT CARELESSLY
AND NEGLIGENTLY FAILED AND NEGLECTED TO PROVIDE PLAINTIFF WITH A SAFE
PLACE TO WORK." 

MR. JUSTICE REED DISSENTS BECAUSE HE READS THE EVIDENCE AS SHOWING
WITHOUT CONTRADICTION THAT RULE 30 WAS NOT APPLICABLE TO THESE
SWITCHING OPERATIONS AND THAT IT WAS THE PRACTICE OF SWITCHING CREWS
UNDER THE CIRCUMSTANCES OF THIS MOVEMENT TO "KICK" THE CARS WITHOUT
WAITING FOR A SIGNAL FROM THE MAN IN DECEDENT'S POSITION AT THE
SWITCH.  IT FOLLOWS THAT THE DEFENSE OF ASSUMPTION OF RISK IS GOOD. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS JOIN IN THIS DISSENT. 
..END :






















TOT V. UNITED STATES, 319 U.S. 463 


NO. 569.  ARGUED APRIL 5, 1943.  - DECIDED JUNE 7, 1943.  - 131 F.2D
261, REVERSED.  - 131 F.2D 614, AFFIRMED. 


1.  SEC. 2(F) OF THE FEDERAL FIREARMS ACT, WHERE IT PROVIDES THAT IT
SHALL BE UNLAWFUL FOR ANY PERSON WHO HAS BEEN CONVICTED OF A CRIME OF
VIOLENCE OR IS A FUGITIVE FROM JUSTICE TO RECEIVE ANY FIREARM OR
AMMUNITION "WHICH HAS BEEN SHIPPED OR TRANSPORTED IN INTERSTATE OR
FOREIGN COMMERCE," IS CONFINED TO THE RECEIPT OF FIREARMS OR AMMUNITION
AS A PART OF INTERSTATE TRANSPORTATION AND DOES NOT EXTEND TO THE
RECEIPT, IN AN INTRASTATE TRANSACTION, OF SUCH ARTICLES WHICH, AT SOME
PRIOR TIME, HAVE BEEN TRANSPORTED INTERSTATE.  P. 466. 

2.  CONGRESS WAS WITHOUT POWER TO CREATE THE PRESUMPTIONS SOUGHT TO
BE CREATED BY SEC. 2(F) OF THE FEDERAL FIREARMS ACT, TO WIT:  THAT,
FROM THE PRISONER'S PRIOR CONVICTION OF A CRIME OF VIOLENCE AND HIS
PRESENT POSSESSION OF A FIREARM OR AMMUNITION, IT SHALL BE PRESUMED (1)
THAT THE ARTICLE WAS RECEIVED BY HIM IN INTERSTATE OR FOREIGN COMMERCE,
AND (2) THAT SUCH RECEIPT OCCURRED AFTER JULY 30, 1938, THE EFFECTIVE
DATE OF THE STATUTE.  P. 466. 

3.  A STATUTORY PRESUMPTION CAN NOT BE SUSTAINED IF THERE BE NO
RATIONAL CONNECTION IN COMMON EXPERIENCE BETWEEN THE FACT PROVED AND
THE ULTIMATE FACT PRESUMED.  P. 467. 

TOT V. UNITED STATES* . 

*TOGETHER WITH NO. 636, UNITED STATES V. DELIA, ON WRIT OF CERTIORARI
TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT, - ARGUED APRIL
5, 6, 1943. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 317 U.S. 623(NO. 569), TO REVIEW THE AFFIRMANCE OF A
CONVICTION UNDER THE FEDERAL FIREARMS ACT, AND CERTIORARI, 318 U.S.
748(NO. 636), TO REVIEW A JUDGMENT REVERSING A LIKE CONVICTION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE THE CONSTRUCTION AND VALIDITY OF SEC. 2(F) OF THE
FEDERAL FIREARMS ACT,  FN1 WHICH IS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON WHO HAS BEEN CONVICTED OF A
CRIME OF VIOLENCE OR IS A FUGITIVE FROM JUSTICE TO RECEIVE ANY FIREARM
OR AMMUNITION WHICH HAS BEEN SHIPPED OR TRANSPORTED IN INTERSTATE OR
FOREIGN COMMERCE, AND THE POSSESSION OF A FIREARM OR AMMUNITION BY ANY
SUCH PERSON SHALL BE PRESUMPTIVE EVIDENCE THAT SUCH FIREARM OR
AMMUNITION WAS SHIPPED OR TRANSPORTED OR RECEIVED, AS THE CASE MAY BE,
BY SUCH PERSON IN VIOLATION OF THIS ACT." 

IN NO. 569, TOT, THE PETITIONER, WAS CONVICTED  FN2  UPON AN
INDICTMENT WHICH CHARGED THAT HE, HAVING BEEN PREVIOUSLY CONVICTED OF
TWO CRIMES OF VIOLENCE, A BURGLARY AND AN ASSAULT AND BATTERY, WITH
INTENT TO BEAT, WOULD, AND ILLTREAT  FN3  ON OR ABOUT SEPTEMBER 20,
1938, AT NEWARK, NEW JERSEY, KNOWINGLY, UNLAWFULLY, AND FELONIOUSLY
RECEIVED A DESCRIBED FIREARM WHICH "HAD BEEN SHIPPED AND TRANSPORTED IN
INTERSTATE COMMERCE TO THE SAID CITY OF NEWARK."  THE CIRCUIT COURT OF
APPEALS AFFIRMED THE JUDGMENT.  FN4 

THE GOVERNMENT'S EVIDENCE WAS THAT TOT HAD BEEN CONVICTED OF ASSAULT
AND BATTERY IN 1925, AND HAD PLEADED NON VULT TO A CHARGE OF BURGLARY
IN 1932 IN STATE COURTS, AND THAT, ON SEPTEMBER 22, 1938, HE WAS FOUND
IN POSSESSION OF A LOADED AUTOMATIC PISTOL. 

AFTER DENIAL OF A MOTION FOR A DIRECTED VERDICT, TOT TOOK THE STAND
AND TESTIFIED THAT HE PURCHASED THE PISTOL IN 1933 OR 1934.  HE
ADMITTED THE CRIMINAL RECORD CHARGED IN THE INDICTMENT AND OTHER
CONVICTIONS.  HIS SISTER AND HIS WIFE TESTIFIED IN CORROBORATION OF HIS
EVIDENCE, BUT THEIR TESTIMONY WAS SHAKEN ON CROSS-EXAMINATION.  IN
REBUTTAL THE GOVERNMENT PRODUCED A REPRESENTATIVE OF THE MANUFACTURER
WHO TESTIFIED THAT THE PISTOL HAD BEEN MADE IN CONNECTICUT IN 1919 AND
SHIPPED BY THE MAKER TO CHICAGO, ILLINOIS.  AT THE CLOSE OF THE CASE
PETITIONER RENEWED HIS MOTION FOR A DIRECTED VERDICT, WHICH WAS
DENIED. 

IN NO. 636, DELIA, THE RESPONDENT, WAS CONVICTED UPON TWO COUNTS. 
THE FIRST ALLEGED THAT, ON SEPTEMBER 25, 1941, HE WAS A PERSON
PREVIOUSLY CONVICTED OF A CRIME OF VIOLENCE - ROBBERY WHILE ARMED  FN5
- AND THAT HE RECEIVED AND POSSESSED A FIREARM, DESCRIBED IN THE
INDICTMENT, "WHICH FIREARM HAD THERETOFORE BEEN SHIPPED AND TRANSPORTED
IN INTERSTATE COMMERCE."  THE SECOND REPEATED THE ALLEGATION OF
PREVIOUS CONVICTION AND CHARGED THAT, ON SEPTEMBER 25, 1941, HE
RECEIVED AND POSSESSED CERTAIN CARTRIDGES WHICH "HAD BEEN THERETOFORE
SHIPPED AND TRANSPORTED IN INTERSTATE COMMERCE."  THE GOVERNMENT'S
PROOF WAS THAT DELIA HAD BEEN CONVICTED OF ARMED ROBBERY AND, ON
SEPTEMBER 25, 1941, HAD IN HIS POSSESSION A LOADED REVOLVER WHICH HAD
BEEN MANUFACTURED IN MASSACHUSETTS PRIOR TO 1920; THAT SOME OF THE
CARTRIDGES IN THE PISTOL HAD BEEN MANUFACTURED IN OHIO AND SOME IN
GERMANY, THE FORMER AFTER 1934 AND THE LATTER AT AN UNKNOWN DATE.  THE
RESPONDENT TESTIFIED THAT HE HAD, AT ABOUT THE TIME OF HIS ARREST,
PICKED UP THE REVOLVER WHEN IT WAS DROPPED BY A PERSON WHO ATTACKED
HIM, BUT THERE WAS TESTIMONY WHICH TENDED TO CONTRADICT THIS DEFENSE. 
THE CIRCUIT COURT OF APPEALS REVERSED THE CONVICTION ON EACH COUNT. 
FN6 

BOTH COURTS BELOW HELD THAT THE OFFENSE CREATED BY THE ACT IS
CONFINED TO THE RECEIPT OF FIREARMS OR AMMUNITION AS A PART OF
INTERSTATE TRANSPORTATION AND DOES NOT EXTEND TO THE RECEIPT, IN AN
INTRASTATE TRANSACTION, OF SUCH ARTICLES WHICH, AT SOME PRIOR TIME,
HAVE BEEN TRANSPORTED INTERSTATE.  THE GOVERNMENT AGREES THAT THIS
CONSTRUCTION IS CORRECT.  THERE REMAINS FOR DECISION THE QUESTION OF
THE POWER OF CONGRESS TO CREATE THE PRESUMPTION WHICH SEC. 2(F)
DECLARES, NAMELY, THAT, FROM THE PRISONER'S PRIOR CONVICTION OF A CRIME
OF VIOLENCE AND HIS PRESENT POSSESSION OF A FIREARM OR AMMUNITION, IT
SHALL BE PRESUMED (1) THAT THE ARTICLE WAS RECEIVED BY HIM IN
INTERSTATE OR FOREIGN COMMERCE, AND (2) THAT SUCH RECEIPT OCCURRED
SUBSEQUENT TO JULY 30, 1938, THE EFFECTIVE DATE OF THE STATUTE. 

THE GOVERNMENT ARGUES THAT THE PRESUMPTION CREATED BY THE STATUTE
MEETS THE TESTS OF DUE PROCESS HERETOFORE LAID DOWN BY THIS COURT.  THE
DEFENDANTS ASSERT THAT IT FAILS TO MEET THEM BECAUSE THERE IS NO
RATIONAL CONNECTION BETWEEN THE FACTS PROVED AND THE ULTIMATE FACT
PRESUMED, THAT THE STATUTE IS MORE THAN A REGULATION OF THE ORDER OF
PROOF BASED UPON THE RELATIVE ACCESSIBILITY OF EVIDENCE TO PROSECUTION
AND DEFENSE, AND CASTS AN UNFAIR AND PRACTICALLY IMPOSSIBLE BURDEN OF
PERSUASION UPON THE DEFENDANT. 

AN INDICTMENT CHARGES THE DEFENDANT WITH ACTION OR FAILURE TO ACT
CONTRARY TO THE LAW'S COMMAND.  IT DOES NOT CONSTITUTE PROOF OF THE
COMMISSION OF THE OFFENSE.  PROOF OF SOME SORT ON THE PART OF THE
PROSECUTOR IS REQUISITE TO A FINDING OF GUILT; IT MAY CONSIST OF
TESTIMONY OF THOSE WHO WITNESSED THE DEFENDANT'S CONDUCT.  ALTHOUGH THE
GOVERNMENT MAY BE UNABLE TO PRODUCE TESTIMONY OF EYE WITNESSES TO THE
CONDUCT ON WHICH GUILT DEPENDS, THIS DOES NOT MEAN THAT IT CANNOT
PRODUCE PROOF SUFFICIENT TO SUPPORT A VERDICT.  THE JURY IS PERMITTED
TO INFER FROM ONE FACT THE EXISTENCE OF ANOTHER ESSENTIAL TO GUILT, IF
REASON AND EXPERIENCE SUPPORT THE INFERENCE.  IN MANY CIRCUMSTANCES
COURTS HOLD THAT PROOF OF THE FIRST FACT FURNISHES A BASIS FOR
INFERENCE OF THE EXISTENCE OF THE SECOND.  FN7 

THE RULES OF EVIDENCE, HOWEVER, ARE ESTABLISHED NOT ALONE BY THE
COURTS BUT BY THE LEGISLATURE.  THE CONGRESS HAS POWER TO PRESCRIBE
WHAT EVIDENCE IS TO BE RECEIVED IN THE COURTS OF THE UNITED STATES. 
FN8  THE SECTION UNDER CONSIDERATION IS SUCH LEGISLATION.  BUT THE DUE
PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS SET LIMITS UPON
THE POWER OF CONGRESS OR THAT OF A STATE LEGISLATURE TO MAKE THE PROOF
OF ONE FACT OR GROUP OF FACTS EVIDENCE OF THE EXISTENCE OF THE ULTIMATE
FACT ON WHICH GUILT IS PREDICATED.  THE QUESTION IS WHETHER, IN THIS
INSTANCE, THE ACT TRANSGRESSES THOSE LIMITS. 

THE GOVERNMENT SEEMS TO ARGUE THAT THERE ARE TWO ALTERNATIVE TESTS OF
THE VALIDITY OF A PRESUMPTION CREATED BY STATUTE.  THE FIRST IS THAT
THERE BE A RATIONAL CONNECTION BETWEEN THE FACTS PROVED AND THE FACT
PRESUMED; THE SECOND THAT OF COMPARATIVE CONVENIENCE OF PRODUCING
EVIDENCE OF THE ULTIMATE FACT.  WE ARE OF OPINION THAT THESE ARE NOT
INDEPENDENT TESTS BUT THAT THE FIRST IS CONTROLLING AND THE SECOND BUT
A COROLLARY.  UNDER OUR DECISIONS, A STATUTORY PRESUMPTION CANNOT BE
SUSTAINED IF THERE BE NO RATIONAL CONNECTION BETWEEN THE FACT PROVED
AND THE ULTIMATE FACT PRESUMED, IF THE INFERENCE OF THE ONE FROM PROOF
OF THE OTHER IS ARBITRARY BECAUSE OF LACK OF CONNECTION BETWEEN THE TWO
IN COMMON EXPERIENCE.  FN9  THIS IS NOT TO SAY THAT A VALID PRESUMPTION
MAY NOT BE CREATED UPON A VIEW OF RELATION BROADER THAN THAT A JURY
MIGHT TAKE IN A SPECIFIC CASE.  FN10  BUT WHERE THE INFERENCE IS SO
STRAINED AS NOT TO HAVE A REASONABLE RELATION TO THE CIRCUMSTANCES OF
LIFE AS WE KNOW THEM, IT IS NOT COMPETENT FOR THE LEGISLATURE TO CREATE
IT AS A RULE GOVERNING THE PROCEDURE OF COURTS. 

THE GOVERNMENT SEEKS TO SUPPORT THE PRESUMPTION BY A SHOWING THAT, IN
MOST STATES, LAWS FORBID THE ACQUISITION OF FIREARMS WITHOUT A RECORD
OF THE TRANSACTION OR REQUIRE REGISTRATION OF OWNERSHIP.  FROM THESE
CIRCUMSTANCES IT IS ARGUED THAT MERE POSSESSION TENDS STRONGLY TO
INDICATE THAT ACQUISITION MUST HAVE BEEN IN AN INTERSTATE TRANSACTION. 
BUT WE THINK THE CONCLUSION DOES NOT RATIONALLY FOLLOW.  ASIDE FROM THE
FACT THAT A NUMBER OF STATES HAVE NO SUCH LAWS, THERE IS NO PRESUMPTION
THAT A FIREARM MUST HAVE BEEN LAWFULLY ACQUIRED OR THAT IT WAS NOT
TRANSFERRED INTERSTATE PRIOR TO THE ADOPTION OF STATE REGULATION.  EVEN
LESS BASIS EXISTS FOR THE INFERENCE FROM MERE POSSESSION THAT
ACQUISITION OCCURRED SUBSEQUENT TO THE EFFECTIVE DATE OF THE STATUTE,
JULY 30, 1938.  AND, AS NO STATE LAWS OR REGULATIONS ARE CITED WITH
RESPECT TO THE ACQUISITION OF AMMUNITION, THERE SEEMS NO REASONABLE
GROUND FOR A PRESUMPTION THAT ITS PURCHASE OR PROCUREMENT WAS IN
INTERSTATE RATHER THAN IN INTRASTATE COMMERCE.  FN11  IT IS NOT TOO
MUCH TO SAY THAT THE PRESUMPTIONS CREATED BY THE LAW ARE VIOLENT, AND
INCONSISTENT WITH ANY ARGUMENT DRAWN FROM EXPERIENCE. 

NOR CAN THE FACT THAT THE DEFENDANT HAS THE BETTER MEANS OF
INFORMATION, STANDING ALONE, JUSTIFY THE CREATION OF SUCH A
PRESUMPTION.  IN EVERY CRIMINAL CASE THE DEFENDANT HAS AT LEAST AN
EQUAL FAMILIARITY WITH THE FACTS AND IN MOST A GREATER FAMILIARITY WITH
THEM THAN THE PROSECUTION.  IT MIGHT, THEREFORE, BE ARGUED THAT TO
PLACE UPON ALL DEFENDANTS IN CRIMINAL CASES THE BURDEN OF GOING FORWARD
WITH THE EVIDENCE WOULD BE PROPER.  BUT THE ARGUMENT PROVES TOO MUCH. 
IF IT WERE SOUND, THE LEGISLATURE MIGHT VALIDLY COMMAND THAT THE
FINDING OF AN INDICTMENT, OR MERE PROOF OF THE IDENTITY OF THE ACCUSED,
SHOULD CREATE A PRESUMPTION OF THE EXISTENCE OF ALL THE FACTS ESSENTIAL
TO GUILT.  THIS IS NOT PERMISSIBLE.  FN12 

WHETHER THE STATUTE IN QUESTION BE TREATED AS EXPRESSING THE NORMAL
BALANCE OF PROBABILITY, OR AS LAYING DOWN A RULE OF COMPARATIVE
CONVENIENCE IN THE PRODUCTION OF EVIDENCE, IT LEAVES THE JURY FREE TO
ACT ON THE PRESUMPTION ALONE ONCE THE SPECIFIED FACTS ARE PROVED,
UNLESS THE DEFENDANT COMES FORWARD WITH OPPOSING EVIDENCE.  AND THIS WE
THINK ENOUGH TO VITIATE THE STATUTORY PROVISION. 

DOUBTLESS THE DEFENDANTS IN THESE CASES KNEW BETTER THAN ANYONE ELSE
WHETHER THEY ACQUIRED THE FIREARMS OR AMMUNITION IN INTERSTATE
COMMERCE.  IT WOULD, THEREFORE, BE A CONVENIENCE TO THE GOVERNMENT TO
RELY UPON THE PRESUMPTION AND CASE ON THE DEFENDANTS THE BURDEN OF
COMING FORWARD WITH EVIDENCE TO REBUT IT.  BUT, AS WE HAVE SHOWN, IT IS
NOT PERMISSIBLE THUS TO SHIFT THE BURDEN BY ARBITRARILY MAKING ONE
FACT, WHICH HAS NO RELEVANCE TO GUILT OF THE OFFENSE, THE OCCASION OF
CASTING ON THE DEFENDANT THE OBLIGATION OF EXCULPATION.  THE ARGUMENT
FROM CONVENIENCE IS ADMISSIBLE ONLY WHERE THE INFERENCE IS A
PERMISSIBLE ONE, WHERE THE DEFENDANT HAS MORE CONVENIENT ACCESS TO THE
PROOF, AND WHERE REQUIRING HIM TO GO FORWARD WITH PROOF WILL NOT
SUBJECT HIM TO UNFAIRNESS OR HARDSHIP.  FN13  EVEN IF THE PRESUMPTION
IN QUESTION WERE IN ITSELF REASONABLE, WE THINK THAT THE NATURE OF THE
OFFENSE, AND THE ELEMENTS WHICH GO TO CONSTITUTE IT, RENDER IT
IMPOSSIBLE TO SUSTAIN THE STATUTE, FOR THE REASON THAT ONE ELEMENT OF
THE OFFENSE IS THE PRIOR CONVICTION OF A CRIME OF VIOLENCE.  IF THE
PRESUMPTION WARRANTS CONVICTION UNLESS THE DEFENDANT COMES FORWARD WITH
EVIDENCE IN EXPLANATION AND IF, AS IS NECESSARILY TRUE, SUCH EVIDENCE
MUST BE CREDITED BY THE JURY IF THE PRESUMPTION IS TO BE REBUTTED, THE
DEFENDANT IS UNDER THE HANDICAP, IF HE TAKES THE WITNESS STAND, OF
ADMITTING PRIOR CONVICTIONS OF VIOLENT CRIMES.  HIS EVIDENCE AS TO
ACQUISITION OF THE FIREARM OR AMMUNITION IS THUS DISCREDITED IN THE
EYES OF THE JURY BEFORE IT IS GIVEN. 

ALTHOUGH THE GOVERNMENT RECOGNIZES THAT THE AUTHORITIES CITED IN NOTE
9 ANNOUNCE THE RULE BY WHICH THE VALIDITY OF THE ACT IS TO BE TESTED,
IT RELIES ON CERTAIN OTHER DECISIONS AS SUPPORTING THE LEGISLATION.  WE
THINK THAT WHAT WAS DECIDED IN THOSE CASES WAS NOT A DEPARTURE FROM THE
RULE AND THAT THEY ARE DISTINGUISHABLE FROM THE INSTANT CASES. 

IN ADAMS V. NEW YORK, 192 U.S. 585, A STATE STATUTE MADE IT AN
OFFENSE "KNOWINGLY" TO POSSESS POLICY SLIPS AND PROVIDED THAT
POSSESSION SHOULD BE PRESUMPTIVE EVIDENCE "OF POSSESSION THEREOF
KNOWINGLY."  THE STATUTORY PRESUMPTION WAS SUSTAINED.  ACCIDENTAL AND
INNOCENT POSSESSION OF SUCH A PAPER WOULD BE EXTRAORDINARY AND UNUSUAL
AND THE STATUTORY PRESUMPTION WAS HARDLY NEEDED TO JUSTIFY A JURY IN
INFERRING KNOWLEDGE OF THE CHARACTER OF THE POLICY SLIP BY ONE FOUND IN
POSSESSION OF IT. 

IN HAWES V. GEORGIA, 258 U.S. 1, THE STATUTORY OFFENSE WAS THAT OF
KNOWINGLY PERMITTING A STILL UPON THE DEFENDANT'S PREMISES.  THE
STATUTE PROVIDED THAT WHEN DISTILLING APPARATUS WAS FOUND ON THE
PREMISES THIS SHOULD BE PRIMA FACIE EVIDENCE THAT THE PERSON IN ACTUAL
POSSESSION HAD KNOWLEDGE OF ITS EXISTENCE.  THE DEFENDANT'S PREMISES
WERE A FARM ON WHICH A STILL WAS FOUND.  THIS COURT SUSTAINED THE
PRESUMPTION.  THE INFERENCE SO ACCORDED WITH COMMON EXPERIENCE THAT A
STATUTORY PROVISION SCARCELY WAS NECESSARY TO SHIFT THE BURDEN OF
PROOF. 

IN FONG YUE TING V. UNITED STATES, 149 U.S. 698, AN ACT OF CONGRESS
WAS INVOLVED WHICH REQUIRED EVERY CHINESE ALIEN WITHIN ONE YEAR TO
PROCURE FROM THE COLLECTOR OF INTERNAL REVENUE A CERTIFICATE OF
RESIDENCE AND MADE IT THE DUTY OF SUCH ALIEN TO PRODUCE THE CERTIFICATE
ON REQUEST.  ANY OFFICER WAS AUTHORIZED TO ARREST A CHINESE ALIEN
FAILING TO PRODUCE THE CERTIFICATE ON REQUEST AND TO HOLD HIM FOR
DEPORTATION.  THE ACT PLACED ON THE ALIEN THE BURDEN OF PROVING AT THE
DEPORTATION HEARING HIS RESIDENCE AND OF EXCUSING HIS FAILURE TO
PROCURE A CERTIFICATE.  FAILURE TO HAVE IN HIS POSSESSION THE
CERTIFICATE THE LAW REQUIRED HIM TO HAVE GAVE RISE TO A NATURAL
INFERENCE OF INTENTIONAL FAILURE TO PROCURE IT OR UNLAWFUL RESIDENCE IN
THE COUNTRY WHICH PRECLUDED HIS PROCURING IT.  IN SUCH A SITUATION THE
SHIFTING TO THE ALIEN OF THE BURDEN OF EXPLANATION IMPOSED NO
UNREASONABLE HARDSHIP UPON HIM.    IN YEE HEM V. UNITED STATES, 268
U.S. 178, IT APPEARED THAT AN ACT OF CONGRESS PROHIBITED IMPORTATION OF
OPIUM EXCEPT UNDER TREASURY REGULATIONS AND THE LATTER FORBADE
IMPORTATION OF SMOKING OPIUM.  THE STATUTE MADE IT AN OFFENSE KNOWINGLY
TO CONCEAL OPIUM ILLEGALLY IMPORTED AND THREW UPON A DEFENDANT FOUND IN
POSSESSION OF SMOKING OPIUM THE BURDEN OF SHOWING THAT HE HAD NOT
ACQUIRED IT THROUGH ILLEGAL IMPORTATION.  THIS COURT SUSTAINED THE
PRESUMPTION ON THE GROUND THAT NO LAWFUL PURCHASE OF SMOKING OPIUM
COULD OCCUR IN THIS COUNTRY AND THAT, THEREFORE, POSSESSION GAVE RISE
TO SINISTER IMPLICATIONS.  IT CONCLUDED IT WAS NOT UNREASONABLE TO
CREATE A PRESUMPTION OF UNLAWFUL IMPORTATION AS THE SOURCE OF THE
COMMODITY THE POSSESSION OF WHICH THE DEFENDANT CONCEALED. 

IN CASEY V. UNITED STATES, 276 U.S. 413, THE OFFENSES CREATED BY ACT
OF CONGRESS WERE THE PURCHASE OR SALE OF MORPHINE FROM PACKAGES NOT
STAMPED WITH AN INTERNAL REVENUE TAX STAMP.  THE DEFENDANT WAS CHARGED
WITH A PURCHASE FROM SUCH A PACKAGE.  THE EVIDENCE SHOWED THAT HE
DISPENSED THE DRUG IN CLANDESTINE FASHION AND NOT FROM A STAMPED
PACKAGE.  IN THESE CIRCUMSTANCES, THIS COURT HELD THAT THE PRESUMPTION
CREATED BY THE STATUTE THAT A SALE OF MORPHINE FROM AN UNSTAMPED
PACKAGE SHOULD BE PRIMA FACIE EVIDENCE OF A SIMILAR PURCHASE WAS NOT
UNREASONABLE OR BEYOND THE REALM OF COMMON EXPERIENCE. 

THE GOVERNMENT SEEKS TO SUSTAIN THE STATUTE ON AN ALTERNATIVE
GROUND.  IT URGES THAT CONGRESS, IN VIEW OF THE INTERSTATE COMMERCE IN
FIREARMS, MIGHT, IN ORDER TO REGULATE IT, HAVE PROHIBITED THE
POSSESSION OF ALL FIREARMS BY PERSONS HERETOFORE CONVICTED OF CRIMES OF
VIOLENCE; THAT, AS THE POWER OF CONGRESS EXTENDS SO FAR, THE
PRESUMPTION THAT ACQUISITION WAS IN INTERSTATE COMMERCE IS THE LESSER
EXERTION OF LEGISLATIVE POWER AND MAY BE UPHELD.  FN14  TWO
CONSIDERATIONS RENDER THE ARGUMENT INADMISSIBLE.  FIRST, IT WILL NOT
SERVE TO SUSTAIN THE PRESUMPTION OF ACQUISITION AFTER THE EFFECTIVE
DATE OF THE ACT, AND SECONDLY, IT IS PLAIN THAT CONGRESS, FOR WHATEVER
REASON, DID NOT SEEK TO PRONOUNCE GENERAL PROHIBITION OF POSSESSION BY
CERTAIN RESIDENTS OF THE VARIOUS STATES OF FIREARMS IN ORDER TO PROTECT
INTERSTATE COMMERCE, BUT DEALT ONLY WITH THEIR FUTURE ACQUISITION IN
INTERSTATE COMMERCE.  THE JUDGMENT IN NO. 569 IS REVERSED AND THAT IN
NO. 636 IS AFFIRMED.  NO. 569, REVERSED.  NO. 636, AFFIRMED. 

FN1  C. 850, 52 STAT. 1250, 1251; 15 U.S.C. SEC. 902(F). 

FN2  SEE 42 F.SUPP.  252. 

FN3  THESE ARE CRIMES OF VIOLENCE ACCORDING TO THE DEFINITION
CONTAINED IN SEC. 1(6) OF THE ACT, 15 U.S.C. SEC. 901(6). 

FN4  131 F.2D 261. 

FN5  ARMED ROBBERY IS A CRIME OF VIOLENCE AS DEFINED IN SEC. 1(6) OF
THE ACT. 

FN6  131 F.2D 614. 

FN7  WILSON V. UNITED STATES, 162 U.S. 613, 619. 

FN8  EX PARTE FISK, 113 U.S. 713, 721; ADAMS V. NEW YORK, 192 U.S.
585, 599; MOBILE, J. & K.C.R. CO. V. TURNIPSEED, 219 U.S. 35, 42;
BAILEY V. ALABAMA, 219 U.S. 219, 238; LURIA V. UNITED STATES, 231 U.S.
9; HAWES V. GEORGIA, 258 U.S. 1, 4. 

FN9  MOBILE, J. & K.C.R. CO. V. TURNIPSEED, SUPRA, P. 43; BAILEY V.
ALABAMA, SUPRA, 239; LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61,
81; LURIA V. UNITED STATES, SUPRA, 25; MCFARLAND V. AMERICAN SUGAR
RFG.  CO., 241 U.S. 79, 86; MANLEY V. GEORGIA, 279 US. 1; WESTERN &
ATLANTIC R. CO. V. HENDERSON, 279 U.S. 639, 642; MORRISON V.
CALIFORNIA, 291 U.S. 82, 90. 

FN10  BAILEY V. ALABAMA, SUPRA, 235. 

FN11  DELIA WAS CONVICTED UPON AN INDICTMENT WHICH CHARGED, INTER
ALIA, RECEIPT OF AMMUNITION. 

FN12  MCFARLAND V. AMERICAN SUGAR RFG.  CO., SUPRA, 86. 

FN13  MORRISON V. CALIFORNIA, SUPRA, 94, 96. 

FN14  SEE FERRY V. RAMSEY, 277 U.S. 88. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS,
CONCURRING: 

I AGREE THAT THE MERE POSSESSION OF A PISTOL COUPLED WITH CONVICTION
OF A PRIOR CRIME IS NO EVIDENCE AT ALL THAT THE POSSESSOR OF THE PISTOL
HAS ACQUIRED IT IN INTERSTATE COMMERCE OR OBTAINED IT SINCE THE
EFFECTIVE DATE OF THE ACT UNDER CONSIDERATION.  THE ACT AUTHORIZES, AND
IN EFFECT CONSTRAINS, JURIES TO CONVICT DEFENDANTS CHARGED WITH
VIOLATION OF THIS STATUTE EVEN THOUGH NO EVIDENCE WHATEVER HAS BEEN
OFFERED WHICH TENDS TO PROVE AN ESSENTIAL INGREDIENT OF THE OFFENSE. 
THE PROCEDURAL SAFEGUARDS FOUND IN THE CONSTITUTION AND IN THE BILL OF
RIGHTS, CHAMBERS V. FLORIDA, 309 U.S. 227, 237, STAND AS A
CONSTITUTIONAL BARRIER AGAINST THUS OBTAINING A CONVICTION, IBID., 235
238.  THESE CONSTITUTIONAL PROVISIONS CONTEMPLATE THAT A JURY MUST
DETERMINE GUILT OR INNOCENCE IN A PUBLIC TRIAL IN WHICH THE DEFENDANT
IS CONFRONTED WITH THE WITNESSES AGAINST HIM AND IN WHICH HE ENJOYS THE
ASSISTANCE OF COUNSEL; AND WHERE GUILT IS IN ISSUE, A VERDICT AGAINST A
DEFENDANT MUST BE PRECEDED BY THE INTRODUCTION OF SOME EVIDENCE WHICH
TENDS TO PROVE THE ELEMENTS OF THE CRIME CHARGED.  COMPLIANCE WITH
THESE CONSTITUTIONAL PROVISIONS, WHICH OF COURSE CONSTITUTE THE SUPREME
LAW OF THE LAND, IS ESSENTIAL TO DUE PROCESS OF LAW, AND A CONVICTION
OBTAINED WITHOUT THEIR OBSERVANCE CANNOT BE SUSTAINED. 

IT IS UNNECESSARY TO CONSIDER WHETHER THIS STATUTE, WHICH PUTS THE
DEFENDANT AGAINST WHOM NO EVIDENCE OF GUILT HAS BEEN OFFERED IN A
PROCEDURAL SITUATION FROM WHICH HE CAN ESCAPE CONVICTION ONLY BY
TESTIFYING, COMPELS HIM TO GIVE EVIDENCE AGAINST HIMSELF IN VIOLATION
OF THE FIFTH AMENDMENT. 
..END :















MAHNOMEN COUNTY V. U.S., 319 U.S. 474 


NO. 684.  ARGUED MAY 4, 1943.  - DECIDED JUNE 7, 1943.  - 131 F.2D 936,
REVERSED. 


1.  IN AN ACTION BY THE UNITED STATES ON BEHALF OF AN EMANCIPATED
INDIAN AGAINST A COUNTY TO RECOVER MONEY PAID AS TAXES ON THE INDIAN'S
NON-TAXABLE ALLOTMENT, WHERE THE ISSUE IS WHETHER THE PAYMENT WAS
VOLUNTARY, THE BURDEN OF PROVING IT INVOLUNTARY IS ON THE GOVERNMENT. 
P. 477. 

2.  AN INDIAN ALLOTMENT WAS TAXED BY A COUNTY FOR A SUCCESSION OF
YEARS, IN PART BEFORE AND IN PART AFTER THE EXPIRATION OF THE TWENTY
FIVE YEAR PERIOD DURING WHICH THE LAND WAS DECLARED IMMUNE TO
TAXATION.  THE INDIAN THEN, BEING EMANCIPATED, VOLUNTARILY MADE A
COMPROMISE WITH THE COUNTY WHEREBY THE LAND WAS RELIEVED OF ALL THE
TAXES AND OF TAX SALES BASED THEREON, UPON PAYMENT BY THE INDIAN OF AN
AMOUNT LESS THAN THE PART OF THE TAXES WHICH HAD BEEN LAID AFTER THE
TWENTY-FIVE YEAR PERIOD HAD EXPIRED.  HELD THAT THE PAYMENT WAS NOT
RECOVERABLE BY THE GOVERNMENT IN A SUIT ON BEHALF OF THE INDIAN.  P.
477. 

COUNTY OF MAHNOMEN V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 318 U.S. 752, TO REVIEW A JUDGMENT AFFIRMING AND
EXPANDING A JUDGMENT OF THE DISTRICT COURT IN A SUIT BY THE UNITED
STATES TO RECOVER FROM THE COUNTY, MONEY PAID THE COUNTY BY AN INDIAN
AS TAXES ON THE INDIAN'S ALLOTMENT OF LAND. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT BY THE GOVERNMENT IN A FEDERAL DISTRICT COURT
TO RECOVER REAL ESTATE TAXES ALLEGED TO HAVE BEEN ILLEGALLY COLLECTED
BY MAHNOMEN COUNTY, MINNESOTA, FROM ISABELLE GARDEN, AN INDIAN
ALLOTTEE.  FN1  THE SUIT, BROUGHT IN 1940, SEEKS A REFUND OF TAXES FOR
THE YEARS 1911 TO 1927 INCLUSIVE.  IT IS CONCEDED THAT ANY LIMITATION
ON THE COUNTY'S POWER TO TAX EXPIRED IN 1928 WITH THE TERMINATION OF
THE TWENTY-FIVE YEAR TRUST DESCRIBED BELOW.  THE DISTRICT COURT
RENDERED JUDGMENT AGAINST THE COUNTY FOR THE YEARS 1911 TO 1921,
INCLUSIVE, GIVING A TOTAL JUDGMENT OF $405.97.  ON APPEAL BY BOTH THE
GOVERNMENT AND THE COUNTY, THE CIRCUIT COURT OF APPEALS AFFIRMED BUT
GAVE AN ADDED JUDGMENT FOR THE YEARS 1922 THROUGH 1925.  131 F.2D 936. 

IN ITS PETITION FOR CERTIORARI, THE COUNTY CLAIMED THAT GARDEN WAS AN
EMANCIPATED INDIAN WHO HAD PAID THE TAXES VOLUNTARILY, AND THAT HENCE
THE JUDGMENT GRANTING A REFUND CONFLICTS WITH WARD V. LOVE COUNTY, 253
U.S. 17.  THE COUNTY ALSO CONTENDED THAT IT WAS WHOLLY WITHIN AN INDIAN
RESERVATION; THAT IT HAD LONG BEEN DEPENDENT ON TAXATION OF ALLOTTED
LANDS; THAT AFTER THE PASSAGE OF THE FIRST CLAPP AMENDMENT IN 1906, 34
STAT. 325, 353, WHICH EMANCIPATED THE MAHNOMEN COUNTY INDIANS, AND
LIFTED "ALL RESTRICTIONS AS TO THE SALE, INCUMBRANCE, OR TAXATION FOR
ALLOTMENTS," THE COUNTY HAD ASSUMED THAT THE INDIANS COULD VOLUNTARILY
CONTRIBUTE TO THE SUPPORT OF COUNTY INSTITUTIONS; AND THAT WHILE THE
INSTANT JUDGMENT IS SMALL, THE AGGREGATE AMOUNT OF SUCH JUDGMENTS WHICH
MIGHT BE OBTAINED IN SIMILAR ACTIONS WOULD ADVERSELY AFFECT THE
SOLVENCY OF THE COUNTY AND IMPERIL THE CONTINUANCE OF COUNTY
INSTITUTIONS.  ON THESE REPRESENTATIONS OF THE PUBLIC IMPORTANCE OF THE
CASE, WE GRANTED CERTIORARI. 

IN 1902, THE SECRETARY OF THE INTERIOR, ACTING UNDER CONGRESSIONAL
AUTHORITY, ISSUED A PATENT TO THIS INDIAN ALLOTTEE, AGREEING TO HOLD A
TRACT OF LAND IN TRUST FOR TWENTY-FIVE YEARS "FOR THE SOLE USE AND
BENEFIT OF THE INDIAN" AND THEN TO CONVEY THE LAND TO HER "DISCHARGED
OF SAID TRUST AND FREE OF ALL CHARGE OR INCUMBRANCE WHATSOEVER."  FN2
INDIAN LAND SO HELD BY THE GOVERNMENT HAS BEEN SAID TO BE EXEMPT FROM
ALL STATE TAXATION.  UNITED STATES V. RICKERT, 188 U.S. 432, 436-438. 
THE FIRST AND SECOND CLAPP AMENDMENTS, PASSED IN 1906 AND 1907,  FN3
LIFTED RESTRICTIONS PREVIOUSLY IMPOSED UPON THE SALE, ENCUMBRANCE AND
TAXATION OF THE ALLOTMENTS OF ADULT MIXED-BLOOD INDIANS, AND IN
ADDITION DECLARED THAT "THE TRUST DEEDS HERETOFORE OR HEREAFTER
EXECUTED BY THE DEPARTMENT FOR SUCH ALLOTMENTS, ARE HEREBY DECLARED TO
PASS THE TITLE IN FEE SIMPLE."  GARDEN IS AN ADULT MIXED-BLOOD INDIAN
AND HAS BEEN AN ADULT SINCE 1911, WHEN THE FIRST CONTROVERTED TAX
PAYMENT WAS MADE.  THESE AMENDMENTS EVIDENCE "A LEGISLATIVE JUDGMENT
THAT ADULT MIXED-BLOOD INDIANS ARE, IN THE RESPECTS DEALT WITH IN THE
ACT, CAPABLE OF MANAGING THEIR OWN AFFAIRS, AND FOR THAT REASON THEY
ARE GIVEN FULL POWER AND AUTHORITY TO DISPOSE OF ALLOTTED LANDS." 
UNITED STATES V. WALLER, 243 U.S. 452, 462; BAKER V. MCCARTHY, 145
MINN. 167, 170, 176 N.W. 643. 

NOTWITHSTANDING THESE ACTS THE COUNTY CONCEDES, AND WE ASSUME
ARGUENDO, THAT IT WAS WITHOUT POWER TO IMPOSE A TAX UPON THESE ALLOTTED
LANDS PRIOR TO 1928 AGAINST THE CONSENT OF THE INDIANS.  CHOATE V.
TRAPP, 224 U.S. 665.  FN4  THE CLAPP AMENDMENT GIVES THE CONSENT OF THE
UNITED STATES TO STATE TAXATION, THUS REMOVING THE BARRIER TO TAXATION
FOUND TO EXIST IN UNITED STATES V. RICKERT, SUPRA; BUT UNDER CHOATE V.
TRAPP THE INDIAN, WHO HAS GAINED A "VESTED RIGHT" NOT TO BE TAXED, MUST
ALSO CONSENT.  ACCEPTANCE OF CHOATE V. TRAPP DOES NOT MEAN THAT AN
INDIAN, LEGISLATIVELY DECLARED TO BE COMPETENT TO HANDLE HIS OWN
AFFAIRS, CANNOT VOLUNTARILY DECIDE TO PAY TAXES FOR HIS OWN ADVANTAGE
AND WELFARE.  IF, AS THE PETITIONER ARGUED, AND AS THE GOVERNMENT DOES
NOT DENY, THE CAPACITY OF THE COUNTY TO PROVIDE SCHOOLS, ROADS, AND
OTHER NECESSARY SERVICES WOULD HAVE BEEN SERIOUSLY JEOPARDIZED, IF NOT
DESTROYED, BY THE FAILURE OF THE INDIANS TO CONTRIBUTE TO A TAX FUND,
THEIR NEWLY GRANTED EMANCIPATION WOULD HAVE BEEN OF LITTLE VALUE.  IN
ADDITION, THE MARKET VALUE OF THEIR LANDS WOULD HAVE BEEN GREATLY
REDUCED BY THE COMPLETE INABILITY OF THE COUNTY TO SECURE FUNDS
ESSENTIAL TO THE ESTABLISHMENT OF MEANS OF TRAVEL AND COMMUNICATION AND
THE MAINTENANCE OF AN ORDERLY SOCIETY.  NOTHING THAT WAS SAID IN CHOATE
V. TRAPP, OR IN ANY OTHER DECISION OF THIS COURT, DEPRIVED AN
EMANCIPATED INDIAN OF FREEDOM VOLUNTARILY TO PAY TAXES IN HIS OWN
INTEREST.  WARD V. LOVE COUNTY, 253 U.S. 17, 22, ASSUMED THAT THE TEST
OF THE RIGHT TO RECOVER A TAX ILLEGALLY COLLECTED FROM AN INDIAN IS
WHETHER THE TAX WAS PAID VOLUNTARILY, AND THAT THE BURDEN IS UPON ONE
SEEKING RECOVERY OF THE TAX TO ESTABLISH THAT THE PAYMENT WAS MADE
INVOLUNTARILY.  THE ISSUE BEFORE US, THEREFORE, IS WHETHER THE
GOVERNMENT HAS SUSTAINED THAT BURDEN. 

THERE IS NO ALLEGATION, STIPULATION, OR FINDING BY EITHER COURT THAT
THESE TAXES WERE INVOLUNTARILY PAID.  BOTH COURTS BELOW ERRONEOUSLY
ASSUMED THAT THE GOVERNMENT'S ORIGINAL OBLIGATION TO HOLD THE LAND IN
TRUST AND DELIVER IT FREE OF ENCUMBRANCES PERMITS THE GOVERNMENT TO
MAINTAIN THIS SUIT EVEN THOUGH THE INDIAN HAS WILLINGLY PAID TAXES. 
1911-1921 TAXES WERE EVIDENTLY PAID WITHOUT PROTEST, AND THERE IS
NOTHING IN THE RECORD TO PERMIT A DEDUCTION THAT THE PAYMENTS WERE
INVOLUNTARY.  FN5 

THE 1922-25 TAXES WERE DISCHARGED IN SOMEWHAT DIFFERENT FASHION.  THE
ALLOTTEE BECAME DELINQUENT IN THE PAYMENT AND THE LANDS WERE SOLD TO
THE STATE.  SUBSEQUENTLY, IN 1936, SHE MADE A COMPROMISE ARRANGEMENT
WITH THE STATE, FOR A PERIOD INCLUDING NOT ONLY THE YEARS 1922-27, FOR
WHICH TAX EXEMPTION IS CLAIMED, BUT ALSO FOR THE YEARS 1928-34, FOR
WHICH THERE IS NO CONCEIVABLE CLAIM OF EXEMPTION.  THIS COMPROMISE,
MADE IN THE FORM OF PURCHASE OF TWO TAX CERTIFICATES FOR THE ALLOTTEE,
RESULTED IN PAYMENT BY GARDEN FOR THE ENTIRE 1922-34 PERIOD OF LESS
THAN THE AMOUNT OF THE 1928-34 TAXES.  THE COMPROMISE, MADE AT A TIME
WHEN THE INDIAN WAS FULLY AS FREE AS ANY OTHER CITIZEN, WAS, IN THE
WORDS OF THE DISTRICT COURT, A "VOLUNTARY ACTION AND ELECTION OF THE
ALLOTTEE TO PROCEED IN A MANNER WHICH SHE DEEMED WISE AND PRUDENT."  IT
RESULTED IN A NET SAVING TO THE ALLOTTEE OF $66.42 FOR THE TAXABLE
YEARS 1928-1934.  FN6  THE VOLUNTARY NATURE AND THE FAIRNESS OF THE
1936 SETTLEMENT ARE FURTHER INDICATED BY THE FACT THAT THE COUNTY, IN
ITS ANSWER TO THE COMPLAINT, HAS DECLARED ITS WILLINGNESS TO REFUND THE
SUM PAID IN SETTLEMENT IN ORDER THAT IT MAY RELEVY THE TAXES FOR THE
YEARS 1928 AND 1934 AND THUS COLLECT THE TAXES WHICH GARDEN ADMITTEDLY
OWED. 

THE ALLOTTEE PAID THE 1911-21 TAXES VOLUNTARILY AND SETTLED THE
BALANCE OF HER TAXES TO HER ADVANTAGE IN 1936.  NEITHER MINNESOTA LAW
FN7  NOR FEDERAL LAW  FN8  REQUIRES THAT A COUNTY REFUND TAXES WHICH AN
EMANCIPATED INDIAN HAS VOLUNTARILY PAID.  THE COUNTY IS ENTITLED TO
JUDGMENT IN ITS FAVOR.  REVERSED. 

FN1  THE GOVERNMENT'S ORIGINAL COMPLAINT INCLUDED ADDITIONAL CLAIMS
AGAINST MAHNOMEN AND OTHER COUNTIES, BUT THESE OTHER CLAIMS ARE NOT
INVOLVED IN THE CASE AS IT REACHES US. 

FN2  24 STAT. 388, 389; 25 STAT. 642. 

FN3  34 STAT. 325, 353; 34 STAT. 1034. 

FN4  WE DO NOT CONSIDER WHETHER CHOATE V. TRAPP IS CONTROLLING HERE. 
IN THAT CASE THE GOVERNMENT HAD PATENTED LAND WITH A PROVISION THAT
"THE LAND SHOULD BE NON-TAXABLE" AND THE AGREEMENT WITH THE INDIANS WAS
HELD TO BE A CONTRACT WHICH, "HAVING BEEN ACCEPTED BY THE STATE OF
OKLAHOMA IN ITS CONSTITUTION UPON ADMISSION TO STATEHOOD, WAS A
LIMITATION UPON THE TAXING POWER OF THE STATE."  CARPENTER V. SHAW, 280
U.S. 363, 366. 

FN5  IN 1923 GARDEN SUED IN A STATE COURT FOR RECOVERY OF HER 1911
1921 TAXES.  A DEMURRER WAS SUSTAINED IN THE TRIAL COURT AND NO APPEAL
WAS TAKEN.  THE RECORD DOES NOT SHOW THAT SHE HAD MADE THE TAX PAYMENTS
UNDER PROTEST, WHICH WOULD PROBABLY HAVE ENTITLED HER TO RECOVERY UNDER
STATE LAW ACCORDING TO THE DOCTRINE OF WARREN V. MAHNOMEN COUNTY, 192
MINN. 464, 257 N.W. 77.  THIS ACTION, BROUGHT AFTER THE TAX BENEFITS
HAD BEEN ENJOYED, IS NO INDICATION THAT SHE DID NOT ORIGINALLY PAY THE
TAXES WILLINGLY IN ORDER TO ENJOY THE BENEFITS OF COUNTY GOVERNMENT. 
WE NEED NOT CONSIDER THE CONTENTION OF THE COUNTY THAT THE 1923 ACTION
IS RES ADJUDICATA.  CF. BRYAN COUNTY V. UNITED STATES, 123 F.2D 782. 

FN6  THE PARTIES HAVE ENTERED THE FOLLOWING STIPULATION AS TO THE
PAYMENT OF THESE TAXES:  "THAT SAID TAXES FOR THE YEARS 1922 TO 1927,
BOTH INCLUSIVE, WERE PAID AND DISCHARGED BY THE SAID ALLOTTEE BY THE
PURCHASE BY HER OF STATE ASSIGNMENT CERTIFICATE NO. 76 IN THE AMOUNT OF
$33.22 COVERING THE TAXES FOR THE YEARS 1922 TO 1925, BOTH INCLUSIVE,
AND STATE ASSIGNMENT CERTIFICATE NO. 232 IN THE AMOUNT OF $145.93
COVERING TAXES FOR THE YEARS 1926 TO 1934, BOTH INCLUSIVE, ALL PURSUANT
TO CHAPTER 387 LAWS OF MINNESOTA FOR 1935, THAT THE AGGREGATE FOR SAID
STATE ASSIGNMENT CERTIFICATES IS THE SUM OF $179.15 AND THAT THE VALID
TAXES FOR THE YEARS 1928 TO 1934, BOTH INCLUSIVE, THEREBY DISCHARGED
AMOUNTED TO $245.57 WITHOUT PENALTY OR INTEREST AND THAT THEREFORE SAID
ALLOTTEE EFFECTED A SAVING OF $66.42 PLUS PENALTY AND INTEREST BY THE
PURCHASE OF SAID STATE TAX ASSIGNMENT CERTIFICATES." 

THE GOVERNMENT IN EFFECT CONCEDES THE MERIT OF THE ARGUMENT THAT THE
1936 SETTLEMENT WAS A FAIR AND VOLUNTARY COMPROMISE BUT SEEKS TO AVOID
ITS FORCE BY AN ASSUMPTION THAT THE TWO TAX CERTIFICATES ARE TO BE
TREATED IN DIFFERENT FASHION.  AS THE STIPULATION MAKES CLEAR,
CERTIFICATE NO. 76 FORMALLY COVERS THE YEARS 1922-25, AND NO. 232
COVERS THE YEARS 1926-34.  IN VIEW OF THE SUBSTANTIAL BENEFIT RECEIVED
BY THE ALLOTTEE FROM THE COMPROMISE, THE GOVERNMENT HAS WAIVED ITS
CLAIM FOR ANY REFUND FOR THE YEARS 1926-27, BUT IT APPARENTLY ASSUMED
THAT CERTIFICATE NO. 76 WAS UNRELATED TO THIS COMPROMISE.  HOWEVER,
BOTH CERTIFICATES WERE PURCHASED AT THE SAME TIME, BOTH COVERED THE
SAME LANDS, AND EACH WOULD BE WORTHLESS WITHOUT THE OTHER SINCE THE
MINNESOTA LAW UNDER WHICH THE ARRANGEMENT WAS MADE IS AIMED AT THE
SETTLEMENT OF ALL DELINQUENT TAXES.  C. 387, MINN. LAWS, 1935; MINN.
STAT. (HENDERSON, 1941), SEC. 280.11-13; CF. SECURITY TRUST CO. V.
HEYDERSTAEDT, 64 MINN. 409, 67 N.W. 219.  THE REASON FOR THE USE OF TWO
CERTIFICATES, ONE FOR THE YEARS PRIOR TO 1925 AND THE OTHER FOR THE
YEARS THEREAFTER, MAY HAVE RESULTED FROM THE FACT THAT THE MINNESOTA
STATUTE APPLIES DIFFERENT STANDARDS OF VALUE TO COMPROMISES OF TAXES
DELINQUENT PRIOR TO 1925 AND THOSE DELINQUENT THEREAFTER.  AS IS
INDICATED BY THE STIPULATION, THE TRANSACTION FOR THE TWO CERTIFICATES
WAS CONSIDERED AS A UNIT AND IS IN FACT ONE COMPROMISE, TERMED BY THE
TRIAL JUDGE A SETTLEMENT FOR A "LUMP SUM." 

FN7  FALVEY V. BOARD OF COUNTY COMM'RS, 76 MINN. 257, 79 N.W. 302;
WARREN V. MAHNOMEN COUNTY, SUPRA. 

FN8  WARD V. LOVE COUNTY, SUPRA; CARPENTER V. SHAW, 280 U.S. 363. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE RUTLEDGE CONCUR IN THE
RESULT. 

MR. JUSTICE MURPHY, DISSENTING: 

I DISSENT BECAUSE THE COURT TODAY TAKES TOO NARROW A VIEW OF OUR
OBLIGATIONS TO OUR INDIAN CITIZENS - OBLIGATIONS ENGENDERED BY A
HISTORY MARKED AT TIMES WITH TRESPASS, DEPREDATION AND CORRUPTION, AND
BY THE CONCOMITANT NECESSITY OF AIDING AND PROTECTING A PEOPLE ONCE
DEPENDENT AND UNLEARNED IN OUR WAYS DURING THEIR DIFFICULT PERIOD OF
TRANSITION FROM THAT SITUATION TO THE ASSUMPTION OF CIVIC
RESPONSIBILITIES AND ASSIMILATION INTO THE MASS OF OUR CITIZENRY. 

THE ASSUMPTIONS WHICH THE OPINION OF THE COURT MAKES REGARDING THE
TAX STATUS OF ISABELLE GARDEN'S ALLOTTED LAND BUT STATE THE APPLICABLE
LAW.  THE LAND WHICH SHE RECEIVED IN 1902 UNDER A TRUST PATENT, ISSUED
PURSUANT TO THE NELSON ACT (25 STAT. 642) AND THE GENERAL ALLOTMENT ACT
(24 STAT. 388), WAS EXEMPT FROM STATE AND LOCAL TAXATION FOR A PERIOD
OF 25 YEARS, OR UNTIL 1928.  UNITED STATES V. RICKERT, 188 U.S. 432;
BOARD OF COMMISSIONERS V. SEBER, 318 U.S. 705.  SINCE THE TRIBE TO
WHICH SHE BELONGED GAVE UP ITS EXTENSIVE HOLDINGS AFTER ASSURANCES THAT
THE FORTH-COMING ALLOTMENTS WOULD BE NON-TAXABLE FOR 25 YEARS,  FN1
THIS TAX EXEMPTION WAS A VESTED RIGHT OF WHICH SHE COULD NOT BE
DEPRIVED WITHOUT HER CONSENT.  CHOATE V. TRAPP, 224 U.S. 665; WARD V.
LOVE COUNTY, 253 U.S. 17; CARPENTER V. SHAW, 280 U.S. 363. 
CONSEQUENTLY, ALTHOUGH ISABELLE GARDEN UPON REACHING HER MAJORITY IN
1911 BECAME EMANCIPATED BY VIRTUE OF THE CLAPP AMENDMENTS OF 1906 AND
1907(34 STAT. 353, 1034), THAT LEGISLATION DID NOT DISTURB HER VESTED
TAX EXEMPTION. 

THE COURT'S RELIANCE UPON WARD V. LOVE COUNTY, 253 U.S. 17, AS THE
BASIS FOR ITS DECISION WITH REGARD TO THE 1911-21 TAXES PAID BY
ISABELLE GARDEN IS UNWARRANTED.  IN THAT CASE IT WAS ASSUMED THAT AN
EMANCIPATED INDIAN POSSESSING A VESTED TAX EXEMPTION COULD NOT RECOVER
BACK TAXES ILLEGALLY ASSESSED BUT VOLUNTARILY PAID.  253 U.S. AT 22. 
BUT THAT CASE DID NOT HOLD, AS THE COURT NOW ASSERTS THAT IT DID, THAT
THE BURDEN WAS ON THE INDIAN CLAIMANT TO ESTABLISH THE INVOLUNTARY
CHARACTER OF THE PAYMENT.  STILL LESS, SINCE THE UNITED STATES WAS NOT
A PARTY, DID IT CONSIDER WHAT THE RIGHTS OF THE UNITED STATES WOULD BE
SHOULD IT BRING SUIT ON BEHALF OF THE INDIAN.  THAT IS THE INSTANT
QUESTION, AND WHILE IT IS ORDINARILY TRUE THAT THE BURDEN OF
DEMONSTRATING THE ILLEGALITY OF A COLLECTED TAX AND COMPLIANCE WITH THE
STATUTORY REQUIREMENTS FOR REFUND ARE UPON THE TAXPAYER SEEKING
RECOVERY, STRONG REASONS OF POLICY SUGGEST AN OPPOSITE RULE SHOULD
PREVAIL IN THIS CASE.  WHILE "EMANCIPATED" UPON ATTAINING TWENTY-ONE,
ISABELLE GARDEN WAS AN INDIAN "JUST EMERGING FROM A STATE OF DEPENDENCY
AND WARDSHIP," WARD V. LOVE COUNTY, SUPRA, AT P. 23, AND THE UNITED
STATES HAD THE RIGHT, IF NOT THE DUTY, TO ENFORCE FOR HER BENEFIT ITS
GUARANTEE OF TAX IMMUNITY EVEN THOUGH SHE WAS A CITIZEN, THE
RESTRICTIONS ON HER PROPERTY WERE REMOVED, AND SHE WAS OTHERWISE
EMANCIPATED FROM A WARDSHIP STATUS.  CF. CRAMER V. UNITED STATES, 261
U.S. 219, 232; HECKMAN V. UNITED STATES, 224 U.S. 413, 437; UNITED
STATES V. MINNESOTA, 270 U.S. 181, 194.  TO HOLD THAT THE UNITED STATES
IS FORECLOSED BY ACTION WHICH ISABELLE GARDEN MAY HAVE TAKEN OR FAILED
TO TAKE IN IGNORANCE OF HER LEGAL RIGHTS IS TO HINDER THE UNITED STATES
IN THE PERFORMANCE OF ITS CONSIDERED POLICY OF PROTECTION AND TO
DEPRIVE HER INDIRECTLY OF THAT OF WHICH SHE COULD NOT DIRECTLY BE
DEPRIVED - HER VESTED TAX EXEMPTION.  WITHOUT LEGAL RIGHT THE COUNTY
PLACED HER TAX-EXEMPT PROPERTY UPON ITS TAX ROLLS IMMEDIATELY UPON HER
REACHING ADULTHOOD, ASSESSED IT, AND SHE PAID THE TAXES UNDER
CIRCUMSTANCES NOT FULLY DISCLOSED.  IN THIS SITUATION IT IS ONLY FAIR
TO PUT THE BURDEN ON THE COUNTY, WHOSE UNAUTHORIZED ACTION BROUGHT IT
ABOUT, OF ESTABLISHING THAT SHE PAID THE TAXES OF HER OWN FREE WILL
WITH FULL KNOWLEDGE OF HER LEGAL RIGHTS.  A CONTRARY RULE FAILS TO TAKE
INTO ACCOUNT THE LONG AND NOT ALTOGETHER CREDITABLE HISTORY OF OUR
RELATIONS WITH THE INDIANS AND THE OBLIGATIONS WE OWE TO THOSE PEOPLE
TO PROTECT THEM IN THEIR RIGHTS. 

APART FROM THE QUESTION OF BURDEN OF PROOF, HOWEVER, I CANNOT AGREE
WITH THE OPINION OF THE COURT.  THE CRUCIAL ISSUE WITH REGARD TO THE
1911-21 TAXES IS ASSUMED TO BE THE VOLUNTARY OR INVOLUNTARY CHARACTER
OF THOSE PAYMENTS.  THE TRIAL COURT ADMITTEDLY MADE NO FINDINGS ON THIS
ISSUE, AND, IN THE ABSENCE OF SUCH FINDINGS, THE PROPER PROCEDURE WOULD
BE TO REMAND THE CASE TO THE TRIAL COURT.  CF. SEMINOLE NATION V.
UNITED STATES, 316 U.S. 286, 300.  BUT IF WE ARE TO DECIDE THE CASE
HERE BY INDULGING IN PRESUMPTIONS, I THINK THE ONLY TENABLE ASSUMPTION
IS THAT THE PAYMENTS WERE MADE UNDER COMPULSION.  ISABELLE GARDEN'S
LAND WAS ASSESSED IMMEDIATELY AFTER SHE BECAME TWENTY-ONE, AND SHE RAN
THE RISK OF LOSING IT UNLESS SHE PAID THE TAXES.  THE RECORD SHOWS THAT
SOME OF THE INDIANS, ORIGINALLY INCLUDED IN THIS ACTION, WHO FAILED TO
PAY THEIR TAXES DID LOSE THEIR ALLOTMENTS.  ON THE RECORD IT CANNOT BE
SAID WITH CERTAINTY THAT ISABELLE GARDEN PAID THE TAXES FOR ANY OTHER
PURPOSE THAN TO PREVENT HER ALLOTMENT FROM BEING SOLD FOR UNPAID
TAXES.  THIS IS BORNE OUT BY THE FACT THAT SHE HERSELF BROUGHT SUIT IN
1923 TO RECOVER THE 1911-21 TAXES.  FN2  SUGGESTED REASONS FOR FINDING
THAT THE PAYMENTS WERE VOLUNTARY ARE WITHOUT SUBSTANCE.  ISABELLE
GARDEN DID NOT HAVE TO PAY THOSE TAXES FOR THE PRIVILEGE OF MANAGING
HER ALLOTMENT AS SHE WISHED.  THAT RIGHT WAS HERS UNDER THE CLAPP
AMENDMENTS WHICH WERE COMPETENT TO REMOVE THE RESTRICTIONS UPON HER
LAND, BUT NOT THE VESTED TAX IMMUNITY.  CF. CHOATE V. TRAPP, SUPRA, P.
673.  AND THERE IS NOTHING IN THE RECORD, APART FROM ARGUMENT CONTAINED
IN THE COUNTY'S UNSUCCESSFUL MOTION FOR A NEW TRIAL, TO SUPPORT THE
ASSUMPTION THAT SHE VOLUNTARILY PAID THE TAXES TO ENJOY THE BENEFITS OF
COUNTY GOVERNMENT.  PAYMENTS MADE UNDER CIRCUMSTANCES SUCH AS THIS,
WHERE AN EXEMPT INDIAN RUNS THE RISK OF LOSING HER ALLOTMENT UNLESS THE
TAXES ARE PAID, SHOULD NOT BE CONSIDERED VOLUNTARY PAYMENTS.  CF. WARD
V. LOVE COUNTY, SUPRA, P. 23; CARPENTER V. SHAW, 280 U.S. 363, 369. 

FINALLY, I CANNOT ASSENT TO THE PROPOSITION THAT SINCE ISABELLE
GARDEN SETTLED HER TAXES FOR 1922 THROUGH 1934 FOR LESS THAN THE AMOUNT
SHE OWED FOR TAXES VALIDLY ASSESSED FOR THE PERIOD BEGINNING IN 1928
WHEN HER LAND BECAME TAXABLE, THE UNITED STATES CANNOT RECOVER FOR HER
THE AMOUNTS SHE PAID TO DISCHARGE THE 1922-25 TAXES.  THOSE TAXES WERE
DISCHARGED IN 1936 BY THE PURCHASE OF STATE ASSIGNMENT CERTIFICATE NO.
76.  AT THE SAME TIME, THE TAXES FOR 1926-34 WERE DISCHARGED BY THE
PURCHASE OF ANOTHER ASSIGNMENT CERTIFICATE.  THE FACT, UNEXPLAINED BY
THE STIPULATION, THAT TWO CERTIFICATES WERE USED TO DISCHARGE THE TAXES
SUGGESTS THAT THERE WAS NO RELATION BETWEEN THE DISCHARGE OF THE 1922
25 TAXES AND THE SETTLEMENT OF THE ADMITTEDLY DUE TAXES FOR 1928-34. 
BUT EVEN IF A RELATION IS ASSUMED, THE UNITED STATES SHOULD STILL BE
ALLOWED TO RECOVER THE AMOUNT PAID FOR ASSIGNMENT CERTIFICATE NO. 76. 
ISABELLE GARDEN PROBABLY WOULD HAVE BEEN ABLE TO COMPROMISE HER 1928-34
TAXES EVEN MORE ADVANTAGEOUSLY IF THE COUNTY HAD NOT ASSERTED ITS
UNWARRANTED CLAIMS FOR THE YEARS 1922-25 DURING WHICH PERIOD THE
PROPERTY WAS STILL TAX EXEMPT.  THAT IS SUFFICIENT TO WARRANT RECOVERY
OF THE AMOUNT PAID FOR ASSIGNMENT CERTIFICATE NO. 76 IN DISCHARGE OF
THE 1922-25 TAXES.  FN3 

FN1  HOUSE EX. DOC. 247, 51ST CONG., 1ST SESS. (SER.  NO. 2747), PP.
93, 103, 104, 138(1890).  SEE ALSO MORROW V. UNITED STATES, 243 F.
854. 

FN2  THIS UNSUCCESSFUL SUIT IS NO BAR TO THE PRESENT ACTION BY THE
UNITED STATES.  THE INTEREST OF THE UNITED STATES IN HAVING ITS
OBLIGATIONS AND POLICIES RESPECTED CANNOT BE DEFEATED BY JUDGMENTS IN
ACTIONS TO WHICH IT IS NOT A PARTY.  UNITED STATES V. CANDELARIA, 271
U.S. 432, 443-44; SUNDERLAND V. UNITED STATES, 266 U.S. 226, 232;
PRIVETT V. UNITED STATES, 256 U.S. 201, 204; BRYAN COUNTY V. UNITED
STATES, 123 F.2D 782. 

FN3  THIS ANALYSIS ALSO INDICATES THAT THE PORTION OF THE ASSIGNMENT
CERTIFICATE COVERING THE PERIOD 1926-34 WHICH DISCHARGED THE TAXES
LEVIED FOR 1926 AND 1927 SHOULD BE RETURNED.  THE GOVERNMENT, HOWEVER,
PRESSES NO CLAIM FOR THESE AMOUNTS HERE. 
..END :











BARTCHY V. UNITED STATES, 319 U.S. 484 


NO. 762.  ARGUED MAY 12, 1943.  - DECIDED JUNE 7, 1943.  - 132 F.2D 348,
REVERSED. 


1.  SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE ACT AND SEC. 641.3
OF THE RULES MADE PURSUANT THERETO, DECLARING IT THE DUTY OF EACH
REGISTRANT TO KEEP HIS LOCAL BOARD ADVISED OF THE ADDRESS WHERE MAIL
WILL REACH HIM, DO NOT REQUIRE A REGISTRANT WHO IS EXPECTING A NOTICE
OF INDUCTION TO REMAIN AT ANY ONE PLACE OR TO NOTIFY THE LOCAL BOARD OF
HIS EVERY MOVE OR OF HIS EVERY TEMPORARY ADDRESS.  P. 488. 

2.  THE REQUIREMENT OF THE RULE IS SATISFIED WHEN THE REGISTRANT, IN
GOOD FAITH, PROVIDES A CHAIN OF FORWARDING ADDRESSES BY WHICH MAIL,
SENT TO THE ADDRESS WHICH IS FURNISHED THE BOARD, MAY BE BY THE
REGISTRANT REASONABLY EXPECTED TO COME INTO HIS HANDS IN TIME FOR
COMPLIANCE.  P. 489. 

3.  THE EVIDENCE IN THIS CASE DOES NOT JUSTIFY THE INFERENCE THAT THE
PETITIONER HAD NOT SHOWN DILIGENCE IN KEEPING THE LOCAL BOARD ADVISED
OF HIS WHEREABOUTS, OR HAD ENDEAVORED TO AVOID DELIVERY OF THE BOARD'S
NOTICE OF INDUCTION.  P. 489. 

BARTCHY V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 318 U.S. 754, TO REVIEW A JUDGMENT AFFIRMING A CONVICTION
UNDER SEC. 11 OF THE SELECTIVE TRAINING AND SERVICE ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE SUFFICIENCY OF THE EVIDENCE TO
SUPPORT PETITIONER'S CONVICTION UNDER SEC. 11 OF THE SELECTIVE TRAINING
AND SERVICE ACT AND THE REGULATIONS MADE THEREUNDER,  FN1  FOR A
KNOWING FAILURE TO KEEP HIS LOCAL BOARD  FN2  ADVISED OF THE ADDRESS
WHERE MAIL WOULD REACH PETITIONER, A REGISTRANT UNDER THE ACT.  A
SECOND COUNT, ON WHICH PETITIONER WAS ACQUITTED AND WHICH NEED NOT
CONCERN US FURTHER, CHARGED A KNOWING FAILURE TO COMPLY WITH AN ORDER
TO REPORT FOR INDUCTION INTO THE ARMED FORCES.  CERTIORARI WAS GRANTED
BECAUSE THE CONVICTION INVOLVED AN INTERPRETATION OF AN IMPORTANT
REGULATION UNDER THE SELECTIVE SERVICE ACT. 

WITH THE APPROVAL OF BOTH PARTIES AND THE COURT, PETITIONER WAS TRIED
BY THE COURT WITHOUT A JURY AND ON CONVICTION WAS SENTENCED TO
IMPRISONMENT FOR SIXTY DAYS.  THE CIRCUIT COURT OF APPEALS AFFIRMED,
ONE JUDGE DISSENTING.  132 F.2D 348. 

PETITIONER WAS PLACED IN CLASS 1-A, AVAILABLE FOR GENERAL MILITARY
SERVICE, BY LOCAL BOARD NO. 9 IN HOUSTON, TEXAS.  HE HAD ALREADY BEEN
GIVEN A FINAL PHYSICAL EXAMINATION BY THE ARMY.  ON FEBRUARY 4, 1942,
PETITIONER WAS ADVISED BY HIS BOARD THAT HIS INDUCTION WOULD PROBABLY
TAKE PLACE IN TWENTY OR THIRTY DAYS.  HE IMMEDIATELY SOUGHT EMPLOYMENT
AS A MERCHANT SEAMAN FOR A SHORT COASTWISE TRIP.  EMPLOYMENT AS MESSMAN
WAS SECURED THROUGH THE NATIONAL MARITIME UNION WHICH HAD ACTIVE
OFFICES IN HOUSTON AND IN NEW YORK.  THE LATTER CITY WAS THE PORT OF
DESTINATION OF THE SHIP PAN RHODE ISLAND UPON WHICH PETITIONER FIRST
SHIPPED.  BARTCHY SECURED A UNION PERMIT CARD PRIOR TO THE VOYAGE AND
LATER BECAME A REGULAR MEMBER OF THE UNION.  THE PAN RHODE ISLAND
SAILED FROM TEXAS CITY FEBRUARY 11TH AND PETITIONER RECEIVED HIS
CERTIFICATE OF DISCHARGE FROM HER EMPLOYMENT IN NEW YORK FEBRUARY
20TH. 

ON FEBRUARY 10TH BARTCHY ADVISED THE BOARD BY LETTER THAT HE WAS
SHIPPING AS A SEAMAN ON THE S.C. CALICHE.  HE CORRECTED THE NAME ON THE
SAME DAY TO THE S.S. PAN MAINE.  NO NOTICE WAS GIVEN THE BOARD AS TO
THE SHIP UPON WHICH HE ACTUALLY SAILED.  IN THE LETTER HE SUGGESTED
DEFERMENT FROM INDUCTION INTO MILITARY SERVICE ON THE GROUND OF
EMPLOYMENT IN THE MERCHANT MARINE AND REQUESTED THAT IN CASE DEFERMENT
WAS GRANTED IT BE ADDRESSED TO 8045 HARRISBURG BOULEVARD, HOUSTON. 
THIS WAS THE OFFICE OF THE NATIONAL MARITIME UNION AND WAS DIFFERENT
FROM HIS ADDRESS, 7543 HARRISBURG BOULEVARD, PREVIOUSLY GIVEN THE
BOARD.  BARTCHY ARRANGED WITH THE HOUSTON OFFICE OF THE UNION TO
FORWARD HIS INDUCTION NOTICE TO THE UNION'S NEW YORK OFFICE. 

ON, OR SHORTLY AFTER, FEBRUARY 20, 1942, A NOTICE TO REPORT FOR
INDUCTION ON MARCH 4 WAS MAILED TO PETITIONER.  IT ARRIVED AT THE
HOUSTON OFFICE OF THE UNION PROMPTLY AND WAS FORWARDED TO ITS NEW YORK
OFFICE PURSUANT TO THE INSTRUCTIONS LEFT BY PETITIONER.  THE RECORD
DOES NOT SHOW THE EXACT TIME THE LETTER REACHED NEW YORK.  THE NOTICE
WAS RETURNED MARCH 12TH TO THE BOARD BY THE UNION IN AN ENVELOPE
BEARING THE UNION'S NEW YORK RETURN ADDRESS AND POSTMARKED HOUSTON,
TEXAS, THE SAME DAY.  IT WAS NOT DELIVERED TO PETITIONER ALTHOUGH, AS
WILL LATER APPEAR, HE WAS IN NEW YORK HARBOR AT THE TIME. 

ON ARRIVAL IN NEW YORK ABOUT FEBRUARY 20TH, PETITIONER TALKED WITH
MERRELL, AN EXECUTIVE AT THAT OFFICE OF THE UNION, AND INQUIRED FOR
MAIL FROM HIS LOCAL BOARD.  NONE WAS THERE.  ON FEBRUARY 25TH THROUGH
THE UNION HE OBTAINED A JOB ON THE S.S. AMERICAN PACKARD, BERTHED AT
HOBOKEN, AND WAS ON BOARD UNTIL MARCH 11TH.  SOMETIME BETWEEN FEBRUARY
20TH, WHEN THE NOTICE WAS MAILED AT HOUSTON, AND MARCH 12TH, WHEN IT
WAS RECEIVED BY THE LOCAL BOARD AT HOUSTON, THE LETTER WAS IN MERRELL'S
HANDS IN NEW YORK AT THE UNION OFFICE.  BARTCHY WAS NOT ADVISED BY
MERRELL OF THE RECEIPT OF THE NOTICE TO REPORT FOR INDUCTION.  THE
FEDERAL BUREAU OF INVESTIGATION FIRST SOUGHT INFORMATION FROM MERRELL
AS TO BARTCHY'S WHEREABOUTS ON MARCH 10TH AND 11TH.  MERRELL THEREUPON
INFORMED BARTCHY THAT HE WAS SOUGHT AFTER BY THE F.B.I. AND HE CAME
INTO THE UNION OFFICE ON MARCH 11TH AND WAS TAKEN INTO CUSTODY. 

BARTCHY ADMITTED THAT HE KNEW THAT THE AMERICAN PACKARD WAS BOUND FOR
A FOREIGN PORT AND THAT HE WAS WILLING TO MAKE THE TRIP UNLESS THE
INDUCTION NOTICE WAS RECEIVED.  THE SHIP WAS NOT TO SAIL IMMEDIATELY ON
FEBRUARY 25TH AND HE WAS NOT REQUIRED TO SIGN ARTICLES FOR THE TRIP;
THAT WOULD BE REQUESTED OF HIM JUST BEFORE SAILING AND AFTER THE
EXAMINATION OF THE SEAMEN BY THE FEDERAL, PARTICULARLY NAVAL,
REPRESENTATIVES.  HE "HAD EVERY REASON TO THINK" THAT BEFORE SAILING
DATE HE WOULD HAVE WORD FROM THE BOARD.  ASKED WHAT HE WOULD HAVE DONE
IF HE WERE REQUESTED TO SIGN ARTICLES FOR THE FOREIGN VOYAGE ON MARCH
10TH, THE DAY BEFORE THE ARREST, HE SAID THAT HE WOULD HAVE FIRST
COMMUNICATED WITH THE BOARD.  PAY AND LODGING WERE EARNED BY BARTCHY
THROUGH HIS SERVICE ON THE AMERICAN PACKARD.  DURING HIS STAY ON BOARD
THE AMERICAN PACKARD, BARTCHY DID NOT RETURN TO NEW YORK UNION
HEADQUARTERS TO INQUIRE FOR MAIL. 

MERRELL TESTIFIED THAT IN THEIR FIRST CONVERSATION PETITIONER SAID
THAT HE WAS EXPECTING AN INDUCTION LETTER, THAT HE WISHED IMMEDIATELY
TO BE INFORMED OF ITS ARRIVAL AND THAT HE ASKED FOR ADVICE "ON HOW WE
HANDLED THAT TYPE OF CASES, OF MEN WHO WENT TO SEA."  PETITIONER ALSO
SAID THAT HE WOULD LIKE TO WORK IN THE MEANTIME AND ASKED WHETHER HE
SHOULD SHIP.  MERRELL TOLD HIM TO CONTINUE SHIPPING UNTIL THE TIME CAME
TO GO INTO THE ARMY.  THE WITNESS TESTIFIED THAT HIS CUSTOMARY ADVICE
WAS FOR SUCH MEN TO STAY ABOARD SHIP "UNTIL THE INDUCTION COMES IN, AND
THEN WHEN THE INDUCTION COMES IN, WE ALWAYS ARRANGE, WE ALWAYS GET HOLD
OF THEM OURSELVES FOR THE DRAFT BOARD."  WHEN THE INDUCTION NOTICE
ARRIVED IN THE NEW YORK OFFICE, IT WAS ROUTED TO MERRELL AND HE
RETURNED IT TO THE BOARD UNDER THE MISTAKEN IMPRESSION THAT THE
AMERICAN PACKARD HAD LEFT THE HARBOR BOUND FOR A WAR ZONE. 

AS PETITIONER WAS ACQUITTED OF THE CHARGE OF KNOWINGLY FAILING TO
REPORT AND SUBMIT TO INDUCTION INTO THE ARMED FORCES, WE SHALL NOT DEAL
OF COURSE WITH THE SITUATION OF A REGISTRANT, SO CHARGED, WHO COMPLIED
WITH THE DUTY OF KEEPING HIS LOCAL BOARD ADVISED OF HIS ADDRESS AND
FAILED NEVERTHELESS TO RECEIVE HIS NOTICE.  THIS PETITIONER WAS
CONVICTED ONLY OF THE CHARGE THAT HE KNOWINGLY FAILED AND NEGLECTED "TO
KEEP HIS LOCAL BOARD ADVISED AT ALL TIMES OF THE ADDRESS WHERE MAIL
WILL REACH HIM." 

WE THINK THE GOVERNMENT CORRECTLY INTERPRETS THE ACT, SEC. 11, AND
THE REGULATION, SEC. 641.3, NOT TO REQUIRE A REGISTRANT WHO IS
EXPECTING A NOTICE OF INDUCTION TO REMAIN AT ONE PLACE OR TO NOTIFY THE
LOCAL BOARD OF EVERY MOVE OR EVERY ADDRESS, EVEN IF THE ADDRESS BE
TEMPORARY.  THE GOVERNMENT MAKES THE POINT, HOWEVER, THAT A REGISTRANT
WITH KNOWLEDGE, AS HERE, OF THE IMMINENCE OF THE POSTING OF THE NOTICE
"IS PLAINLY OBLIGATED TO KEEP IN CLOSE COMMUNICATION WITH THE
FORWARDING ADDRESS."  IF THIS SUGGESTION IS MEANT AS A RULE OF LAW THAT
AT HIS PERIL THE REGISTRANT MUST AT SHORT INTERVALS INQUIRE AT HIS LAST
ADDRESS GIVEN TO THE BOARD, HERE 7543 HARRISBURG BOULEVARD, HOUSTON, OR
AT HIS OWN FORWARDING ADDRESS, HERE THE MARITIME UNION IN NEW YORK, WE
ARE OF THE VIEW THAT THE GOVERNMENT DEMANDS MORE THAN THE REGULATION
REQUIRES.  THE REGULATION, IT SEEMS TO US, IS SATISFIED WHEN THE
REGISTRANT, IN GOOD FAITH, PROVIDES A CHAIN OF FORWARDING ADDRESSES BY
WHICH MAIL, SENT TO THE ADDRESS WHICH IS FURNISHED THE BOARD, MAY BE BY
THE REGISTRANT REASONABLY EXPECTED TO COME INTO HIS HANDS IN TIME FOR
COMPLIANCE. 

THE DISTRICT COURT AND THE COURT OF APPEALS CONCLUDED THAT THE
PETITIONER HAD NOT SHOWN DILIGENCE IN KEEPING THE BOARD ADVISED OF HIS
WHEREABOUTS AND HAD AFFIRMATIVELY ENDEAVORED TO AVOID DELIVERY OF THE
COMMUNICATION.  WE DO NOT THINK EITHER OF THESE INFERENCES IS JUSTIFIED
BY THIS RECORD. 

THE PETITIONER LEFT WITH THE BOARD AN ADDRESS WHICH IN REGULAR COURSE
OF MAIL SHOULD AND DID BRING THE NOTICE TO THE HARBOR WHERE PETITIONER
WAS LOCATED.  THE FACT THAT BARTCHY SHIPPED ON ONE SHIP RATHER THAN
ANOTHER TO REACH NEW YORK IS IMMATERIAL.  ON ARRIVAL THERE HE WENT TO
HIS FORWARDING ADDRESS, INQUIRED FOR MAIL, TOLD THE OFFICIAL IN CHARGE
HE WAS EXPECTING AN INDUCTION NOTICE AND ARRANGED FOR NOTIFICATION TO
HIM BY THE UNION OF ITS ARRIVAL.  BARTCHY FAILED TO RECEIVE THE NOTICE
BECAUSE OF THE MISTAKE OF THE OFFICIAL OF THE UNION WHEN THE LATTER
CONCLUDED, WITHOUT VERIFICATION, THAT THE S.S. AMERICAN PACKARD HAD
SAILED.  THE UNION HAD INFORMATION THE REGISTRANT WAS WORKING ON THAT
SHIP. 

PETITIONER MIGHT HAVE BEEN MORE DILIGENT BY TELEPHONING OR CALLING AT
THE UNION AT INTERVALS BETWEEN THE TWENTY-FIFTH OF FEBRUARY AND THE
TENTH OF MARCH BUT WE CONCLUDE THAT HE WAS JUSTIFIED IN RELYING UPON
THE EFFICIENCY OF THIS EXPERIENCED ORGANIZATION TO ADVISE HIM OF THE
ARRIVAL OF THE NOTICE.  REVERSED. 

FN1  SEC. 11 PUNISHES WITH A MAXIMUM OF FIVE YEARS IMPRISONMENT AND A
FINE OF NOT MORE THAN $10,000 "ANY PERSON  ...  WHO IN ANY MANNER SHALL
KNOWINGLY FAIL OR NEGLECT TO PERFORM ANY DUTY REQUIRED OF HIM UNDER OR
IN THE EXECUTION OF THIS ACT, OR RULES OR REGULATIONS MADE PURSUANT TO
THIS ACT,  ...  "  54 STAT. 885, 894.  THE REGULATION INVOLVED
PROVIDES:  "SEC.  641.3 COMMUNICATION BY MAIL.  IT SHALL BE THE DUTY OF
EACH REGISTRANT TO KEEP HIS LOCAL BOARD ADVISED AT ALL TIMES OF THE
ADDRESS WHERE MAIL WILL REACH HIM.  THE MAILING OF ANY ORDER, NOTICE,
OR BLANK FORM BY THE LOCAL BOARD TO A REGISTRANT AT THE ADDRESS LAST
REPORTED BY HIM TO THE LOCAL BOARD SHALL CONSTITUTE NOTICE TO HIM OF
THE CONTENTS OF THE COMMUNICATION, WHETHER HE ACTUALLY RECEIVES IT OR
NOT."  6 FED. REG. 6851-52. 

FN2  SEC. 603, 6 FED. REG. 6827. 

MR. CHIEF JUSTICE STONE: 

THE DECISION OF THE TWO COURTS BELOW THAT PETITIONER KNOWINGLY FAILED
"TO KEEP HIS LOCAL BOARD ADVISED AT ALL TIMES OF THE ADDRESS WHERE MAIL
WOULD REACH HIM" IS AMPLY SUPPORTED BY UNCONTRADICTED EVIDENCE. 

THE ADDRESS WHICH PETITIONER GAVE THE BOARD WAS THAT OF THE MARITIME
UNION IN HOUSTON, TEXAS.  MAIL WOULD NOT REACH HIM THERE BECAUSE HE WAS
NOT IN HOUSTON.  ASSUMING THAT A FORWARDING ADDRESS TO A PLACE WHERE
MAIL WOULD REACH HIM, IF FORWARDED, WOULD SATISFY THE STATUTORY
REQUIREMENT, MAIL WOULD NOT REACH HIM AT HIS FORWARDING ADDRESS IN NEW
YORK CITY, FOR HE WAS NOT IN NEW YORK CITY IN THE CRITICAL TIME FROM
FEBRUARY 25 TO MARCH 11, DURING WHICH HE KNEW FROM THE ADVICE OF THE
BOARD THAT HIS NOTICE OF INDUCTION WOULD PROBABLY BE MAILED.  HE WAS
THEN LIVING IN HOBOKEN, NEW JERSEY ON THE S.S. AMERICAN PACKARD, ON
WHICH HE HAD SOUGHT EMPLOYMENT AS A SEAMAN FOR A VOYAGE OF MANY MONTHS
TO THE FAR EAST, AND WHICH, PENDING HER SAILING, WAS UNDERGOING REPAIRS
IN HOBOKEN. 

DURING THAT TIME MAIL WOULD NOT REACH HIM IN NEW YORK CITY, FOR HE
WAS AT NO TIME IN NEW YORK CITY, AND HE AT NO TIME WENT OR SENT THERE
FOR MAIL, OR INQUIRED WHETHER MAIL HAD COME FOR HIM.  MAIL WOULD NOT
REACH HIM IN HOBOKEN OR ON THE AMERICAN PACKARD, OR "IN NEW YORK
HARBOR," BECAUSE HE HAD NOT GIVEN EITHER AS A FORWARDING ADDRESS OR
GIVEN INSTRUCTIONS TO ANY ONE THAT MAIL BE SENT OR DELIVERED TO HIM AT
EITHER PLACE.  THE COURTS BELOW WERE JUSTIFIED IN CONCLUDING THAT
DURING A PERIOD OF SOME WEEKS, WHEN HE EXPECTED TO RECEIVE THE NOTICE
OF THE DRAFT BOARD, AND WHEN HE WAS PREPARING TO LEAVE THE COUNTRY FOR
A PERIOD OF MONTHS, HE KNOWINGLY FAILED TO KEEP THE BOARD ADVISED OF
ANY ADDRESS WHERE MAIL WOULD REACH HIM.  THE JUDGMENT SHOULD BE
AFFIRMED. 

MR. JUSTICE ROBERTS JOINS IN THIS DISSENT. 
..END :






















MCLEOD V. THRELKELD, 319 U.S. 491 


NO. 787.  ARGUED MAY 6, 7, 1943.  - DECIDED JUNE 7, 1943.  - 131 F.2D
880, AFFIRMED. 


1.  AN EMPLOYEE WHOSE WORK IS TO PREPARE MEALS AND SERVE THEM TO
MAINTENANCE-OF-WAY EMPLOYEES OF AN INTERSTATE RAILROAD IN PURSUANCE OF
A CONTRACT BETWEEN HIS EMPLOYER AND THE RAILROAD COMPANY IS NOT
"ENGAGED IN COMMERCE" WITHIN THE MEANING OF SECS. 6 AND 7 OF THE FAIR
LABOR STANDARDS ACT.  P. 493. 

2.  THE TEST IN DETERMINING WHETHER AN EMPLOYEE IS "ENGAGED IN
COMMERCE" WITHIN THE MEANING OF THE FAIR LABOR STANDARDS ACT, SECS. 6
AND 7, IS NOT WHETHER HIS ACTIVITIES AFFECT OR INDIRECTLY RELATE TO
INTERSTATE COMMERCE BUT WHETHER THEY ARE ACTUALLY IN OR SO CLOSELY
RELATED TO THE MOVEMENT OF COMMERCE AS TO BE A PART OF IT.  P. 497. 

THE WORK OF THE EMPLOYEE DECIDES THIS QUESTION; IT IS NOT IMPORTANT
IN THIS CASE WHETHER HIS EMPLOYER WAS ENGAGED IN INTERSTATE COMMERCE. 

MCLEOD V. THRELKELD ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 318 U.S. 754, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT, 46 F.SUPP.  208, IN A SUIT BROUGHT BY MCLEOD
AGAINST HIS EMPLOYER UNDER SECS. 6 AND 7 OF THE FAIR LABOR STANDARDS
ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI BRINGS HERE FOR EXAMINATION A JUDGMENT OF THE CIRCUIT
COURT OF APPEALS FOR THE FIFTH CIRCUIT, 131 F.2D 880, WHICH HELD THAT A
COOK, EMPLOYED BY RESPONDENTS TO PREPARE AND SERVE MEALS TO MAINTENANCE
OF-WAY EMPLOYEES OF THE TEXAS & NEW ORLEANS RAILROAD COMPANY, IS NOT
ENGAGED IN COMMERCE UNDER SECS. 6 AND 7 OF THE FAIR LABOR STANDARDS ACT
AND THEREFORE NOT ENTITLED TO RECOVER FOR AN ALLEGED VIOLATION OF THAT
ACT.  FN1 

THE RESPONDENTS ARE A PARTNERSHIP WITH A CONTRACT TO FURNISH MEALS TO
MAINTENANCE-OF-WAY EMPLOYEES OF THE RAILROAD, AN INTERSTATE CARRIER. 
THE MEALS ARE SERVED IN A COOK AND DINING CAR ATTACHED TO A PARTICULAR
GANG OF WORKMEN AND RUNNING ON THE RAILROAD'S TRACKS.  THE CAR IS SET
CONVENIENTLY TO THE PLACE OF WORK OF THE BOARDERS AND IN EMERGENCIES
FOLLOWS THE GANG TO THE SCENE OF ITS ACTIVITIES.  EMPLOYEES PAY THE
CONTRACTOR FOR THEIR MEALS BY ORDERS AUTHORIZING THE RAILROAD COMPANY
TO DEDUCT THE AMOUNT OF THEIR BOARD FROM WAGES DUE AND PAY IT OVER TO
THE CONTRACTOR.  THE PETITIONER WORKED AS COOK AT VARIOUS POINTS IN
TEXAS ALONG THE LINE OF THE ROAD DURING THE PERIOD IN QUESTION. 

AS THE EXTENT OF THE COVERAGE BY REASON OF THE PHRASE "ENGAGED IN
COMMERCE" IS IMPORTANT IN THE ADMINISTRATION OF THE FAIR LABOR
STANDARDS ACT, WE GRANTED CERTIORARI. 

IN DRAFTING LEGISLATION UNDER THE POWER GRANTED BY THE CONSTITUTION
TO REGULATE INTERSTATE COMMERCE AND TO MAKE ALL LAWS NECESSARY AND
PROPER TO CARRY THOSE REGULATIONS INTO EFFECT, CONGRESS IS FACED
CONTINUALLY WITH THE DIFFICULTY OF DEFINING ACCURATELY THE PRECISE
SCOPE OF THE PROPOSED BILL.  IN THE FAIR LABOR STANDARDS ACT, CONGRESS
DID NOT INTEND THAT THE REGULATION OF HOURS AND WAGES SHOULD EXTEND TO
THE FURTHEST REACHES OF FEDERAL AUTHORITY.  THE PROPOSAL TO HAVE THE
BILL APPLY TO EMPLOYEES "ENGAGED IN COMMERCE IN ANY INDUSTRY AFFECTING
COMMERCE" WAS REJECTED IN FAVOR OF THE LANGUAGE, NOW IN THE ACT, "EACH
OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE PRODUCTION OF
GOODS FOR COMMERCE."  FN2  SECS. 6 AND 7.  SEE THE DISCUSSION AND
REFERENCE TO LEGISLATIVE HISTORY IN KIRSCHBAUM CO. V. WALLING, 316 U.S.
517, AND WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564.  THE
SELECTION OF THE SMALLER GROUP WAS DELIBERATE AND PURPOSEFUL. 

MCLEOD WAS NOT ENGAGED IN THE PRODUCTION OF GOODS FOR COMMERCE.  HIS
DUTIES AS COOK AND CARETAKER FOR MAINTENANCE-OF-WAY MEN ON A RAILROAD
LIE COMPLETELY OUTSIDE THAT CLAUSE.  FN3  OUR QUESTION IS WHETHER HE
WAS "ENGAGED IN COMMERCE."  FN4  WE HAVE HELD THAT THIS CLAUSE COVERED
EVERY EMPLOYEE IN THE "CHANNELS OF INTERSTATE COMMERCE," WALLING V.
JACKSONVILLE PAPER CO., 317 U.S. 564, AS DISTINGUISHED FROM THOSE WHO
MERELY AFFECTED THAT COMMERCE.  SO HANDLERS OF GOODS FOR A WHOLESALER
WHO MOVES THEM INTERSTATE ON ORDER OR TO MEET THE NEEDS OF SPECIFIED
CUSTOMERS ARE IN COMMERCE, WHILE THOSE EMPLOYEES WHO HANDLE GOODS AFTER
ACQUISITION BY A MERCHANT FOR GENERAL LOCAL DISPOSITION ARE NOT.  FN5
EMPLOYEES ENGAGED IN OPERATING AND MAINTAINING PRIVATELY OWNED TOLL
ROADS AND BRIDGES OVER NAVIGABLE WATERWAYS ARE "ENGAGED IN COMMERCE." 
OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125.  SO ARE EMPLOYEES OF
CONTRACTORS WHEN THE EMPLOYEES ARE ENGAGED IN REPAIRING BRIDGES OF
INTERSTATE RAILROADS.  PEDERSEN V. J.F. FITZGERALD CONSTRUCTION CO.,
318 U.S. 740, 742. 

IN THE PRESENT INSTANCE, IT IS URGED THAT THE CONCEPTION OF "IN
COMMERCE" BE EXTENDED BEYOND THE EMPLOYEES ENGAGED IN ACTUAL WORK UPON
THE TRANSPORTATION FACILITIES.  FN6  IT IS SAID THAT THIS COURT DECIDED
AN EMPLOYEE, ENGAGED IN SIMILAR WORK WAS "IN COMMERCE," UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT  FN7  AND THAT IT IS IMMATERIAL
WHETHER THE EMPLOYEE IS HIRED BY THE ONE ENGAGED IN THE INTERSTATE
BUSINESS SINCE IT IS THE ACTIVITIES OF THE EMPLOYEE AND NOT OF THE
EMPLOYER WHICH ARE DECISIVE.  FN8 

JUDICIAL DETERMINATION OF THE REACH OF THE COVERAGE OF THE FAIR LABOR
STANDARDS ACT "IN COMMERCE" MUST DEAL WITH DOUBTFUL INSTANCES.  THERE
IS NO SINGLE CONCEPT OF INTERSTATE COMMERCE WHICH CAN BE APPLIED TO
EVERY FEDERAL STATUTE REGULATING COMMERCE.  SEE KIRSCHBAUM CO. V.
WALLING, SUPRA, 520.  HOWEVER, THE TEST OF THE FEDERAL EMPLOYERS'
LIABILITY ACT THAT ACTIVITIES SO CLOSELY RELATED TO INTERSTATE
TRANSPORTATION AS TO BE IN PRACTICE AND LEGAL RELATION A PART THEREOF
ARE TO BE CONSIDERED IN THAT COMMERCE, IS APPLICABLE TO EMPLOYMENTS "IN
COMMERCE" UNDER THE FAIR LABOR STANDARDS ACT.  FN9 

THE EFFECT OF THE OVER-REFINEMENT OF FACTUAL SITUATIONS WHICH
HAMPERED THE APPLICATION OF THE FEDERAL EMPLOYERS' LIABILITY ACT, PRIOR
TO THE RECENT AMENDMENT,  FN10  WE HOPE, IS NOT TO BE REPEATED IN THE
ADMINISTRATION AND OPERATION OF THE FAIR LABOR STANDARDS ACT.  WHERE
THE ACCIDENT OCCURS ON OR IN DIRECT CONNECTION WITH THE
INSTRUMENTALITIES OF TRANSPORTATION, SUCH AS TRACKS AND ENGINES,
INTERSTATE COMMERCE HAS BEEN USED INTERCHANGEABLY WITH INTERSTATE
TRANSPORTATION.  FN11 BUT WHERE THE DISTINCTION BETWEEN WHAT A COMMON
CARRIER BY RAILROAD DOES WHILE ENGAGING IN COMMERCE BETWEEN THE STATES,
I.E., TRANSPORTATION, AND INTERSTATE COMMERCE IN GENERAL IS IMPORTANT,
THE FEDERAL EMPLOYERS' LIABILITY ACT WAS CONSTRUED PRIOR TO THE 1939
AMENDMENT AS APPLYING TO TRANSPORTATION ONLY.  FN12 

THE SMITH  FN13  CASE CONSTRUED THE EMPLOYERS' LIABILITY ACT TO APPLY
TO A COOK AND CARETAKER EMPLOYED BY THE RAILROAD TO CARE FOR A CAMP CAR
USED FOR FEEDING AND HOUSING A GROUP OF THE RAILROAD'S BRIDGE
CARPENTERS.  AT THE TIME OF THE ACCIDENT THE COOK WAS ENGAGED IN THESE
DUTIES.  IN HOLDING THE COOK WAS "IN COMMERCE" THIS COURT SAID: 

"THE CIRCUMSTANCE THAT THE RISKS OF PERSONAL INJURY TO WHICH
PLAINTIFF WAS SUBJECTED WERE SIMILAR TO THOSE THAT ATTENDED THE WORK OF
TRAIN EMPLOYEES GENERALLY AND OF THE BRIDGE WORKERS THEMSELVES WHEN OFF
DUTY, WHILE NOT WITHOUT SIGNIFICANCE, IS OF LITTLE MOMENT.  THE
SIGNIFICANT THING, IN OUR OPINION, IS THAT HE WAS EMPLOYED BY DEFENDANT
TO ASSIST, AND ACTUALLY WAS ASSISTING, THE WORK OF THE BRIDGE
CARPENTERS BY KEEPING THEIR BED AND BOARD CLOSE TO THEIR PLACE OF WORK,
THUS RENDERING IT EASIER FOR DEFENDANT TO MAINTAIN A PROPER
ORGANIZATION OF THE BRIDGE GANG AND FORWARDING THEIR WORK BY REDUCING
THE TIME LOST IN GOING TO AND FROM THEIR MEALS AND THEIR LODGING
PLACE.  IF, INSTEAD, HE HAD BROUGHT THEIR MEALS TO THEM DAILY AT THE
BRIDGE UPON WHICH THEY HAPPENED TO BE WORKING, IT HARDLY WOULD BE
QUESTIONED THAT HIS WORK IN SO DOING WAS A PART OF THEIRS.  WHAT HE WAS
IN FACT DOING WAS THE SAME IN KIND, AND DID NOT DIFFER MATERIALLY IN
DEGREE.  HENCE HE WAS EMPLOYED, AS THEY WERE, IN INTERSTATE COMMERCE,
WITHIN THE MEANING OF THE EMPLOYERS' LIABILITY ACT."  250 U.S. 101,
104. 

SUCH A RULING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, AFTER THE
BOLLE, INDUSTRIAL COMMISSION AND BEZUE CASES, SUPRA, NOTE 9, SHOULD NOT
GOVERN OUR CONCLUSIONS UNDER THE FAIR LABOR STANDARDS ACT.  THESE THREE
LATER CASES LIMITED THE COVERAGE OF THE FEDERAL EMPLOYERS' LIABILITY
ACT TO THE ACTUAL OPERATION OF TRANSPORTATION AND ACTS SO CLOSELY
RELATED TO TRANSPORTATION AS TO BE THEMSELVES REALLY A PART OF IT.
THEY RECOGNIZED THE FACT THAT RAILROADS CARRIED COMMERCE AND WERE THUS
A PART OF IT BUT THAT EACH EMPLOYMENT THAT INDIRECTLY ASSISTED THE
FUNCTIONING OF THAT TRANSPORTATION WAS NOT A PART.  THE TEST UNDER THIS
PRESENT ACT, TO DETERMINE WHETHER AN EMPLOYEE IS ENGAGED IN COMMERCE,
IS NOT WHETHER THE EMPLOYEE'S ACTIVITIES AFFECT OR INDIRECTLY RELATE TO
INTERSTATE COMMERCE BUT WHETHER THEY ARE ACTUALLY IN OR SO CLOSELY
RELATED TO THE MOVEMENT OF THE COMMERCE AS TO BE A PART OF IT. FN14
EMPLOYEE ACTIVITIES OUTSIDE OF THIS MOVEMENT, SO FAR AS THEY ARE
COVERED BY WAGE-HOUR REGULATION, ARE GOVERNED BY THE OTHER PHRASE,
"PRODUCTION OF GOODS FOR COMMERCE."  FN15 

IT IS NOT IMPORTANT WHETHER THE EMPLOYER, IN THIS CASE THE
CONTRACTOR, IS ENGAGED IN INTERSTATE COMMERCE.  IT IS THE WORK OF THE
EMPLOYEE WHICH IS DECISIVE.  HERE THE EMPLOYEE SUPPLIES THE PERSONAL
NEEDS OF THE MAINTENANCE-OF-WAY MEN.  FOOD IS CONSUMED APART FROM THEIR
WORK.  THE FURNISHING OF BOARD SEEMS TO US AS REMOTE FROM COMMERCE, IN
THIS INSTANCE, AS IN THE CASES WHERE EMPLOYEES SUPPLY THEMSELVES.  IN
ONE INSTANCE THE FOOD WOULD BE AS NECESSARY FOR THE CONTINUANCE OF
THEIR LABOR AS IN THE OTHER. 

WE AGREE WITH THE CONCLUSION OF THE DISTRICT COURT AND THE CIRCUIT
COURT OF APPEALS THAT THIS EMPLOYEE IS NOT ENGAGED IN COMMERCE UNDER
THE FAIR LABOR STANDARDS ACT.  AFFIRMED. 

FN1  52 STAT. 1062-63.  "SEC.  6.  (A) EVERY EMPLOYER SHALL PAY TO
EACH OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE PRODUCTION
OF GOODS FOR COMMERCE WAGES AT THE FOLLOWING RATES - 

   .         .         .         .         . 

"SEC. 7.  (A)  NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED IN
THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR
IN THE PRODUCTION OF GOODS FOR COMMERCE  ...  " 

FN2  THE DISTINCTION IN THE COVERAGE ARISING FROM THIS CHOICE OF
LANGUAGE WAS WELL KNOWN TO CONGRESS.  CF. NATIONAL LABOR RELATIONS ACT,
49 STAT. 449, 450.  LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1, 31 ET
SEQ.; BITUMINOUS COAL ACT OF 1937, SEC. 4-A, 50 STAT. 72, 83;
AGRICULTURAL ADJUSTMENT ACT, 50 STAT. 246; PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, 49 STAT. 803, SEC. 1(C). 

FN3  52 STAT. 1061.  "(I) 'GOODS' MEANS GOODS (INCLUDING SHIPS AND
MARINE EQUIPMENT), WARES, PRODUCTS, COMMODITIES, MERCHANDISE, OR
ARTICLES OR SUBJECTS OF COMMERCE OF ANY CHARACTER, OR ANY PART OR
INGREDIENT THEREOF, BUT DOES NOT INCLUDE GOODS AFTER THEIR DELIVERY
INTO THE ACTUAL PHYSICAL POSSESSION OF THE ULTIMATE CONSUMER THEREOF
OTHER THAN A PRODUCER, MANUFACTURER, OR PROCESSOR THEREOF." 

FN4  COOKS EMPLOYED TO FEED WORKERS ENGAGED IN THE PRODUCTION OF
GOODS FOR COMMERCE HAVE BEEN HELD TO BE SIMILARLY ENGAGED.  HANSON V.
LAGERSTROM, 133 F.2D 120; CONSOLIDATED TIMBER CO. V. WOMACK, 132 F.2D
101. 

FN5  WALLING V. JACKSONVILLE PAPER CO., SUPRA; HIGGINS V. CARR BROS.
CO., 317 U.S. 572. 

FN6  THE CONTENTION THAT THE WORK OF THE EMPLOYEE IS COVERED BY THE
EXEMPTION OF SEC. 13(A)(2) - "ANY EMPLOYEE ENGAGED IN ANY RETAIL OR
SERVICE ESTABLISHMENT THE GREATER PART OF WHOSE SELLING OR SERVICING IS
IN INTRASTATE COMMERCE" - SEEMS WITHOUT SIGNIFICANCE.  IF THE WORK IS
IN INTERSTATE COMMERCE, THE EXEMPTION DOES NOT APPLY.  COMPARE
CONSOLIDATED TIMBER CO. V. WOMACK, 132 F.2D 101, 106 ET SEQ.; HANSON V.
LAGERSTROM, 133 F.2D 120. 

FN7  PHILADELPHIA, B. & W.R. CO. V. SMITH, 250 U.S. 101.  THIS CASE
CONSTRUED THE FEDERAL EMPLOYERS' LIABILITY ACT OF APRIL 22, 1908, 35
STAT. 65, SEC. 1; "EVERY COMMON CARRIER BY RAILROAD WHILE ENGAGING IN
COMMERCE  ...  SHALL BE LIABLE IN DAMAGES  ...  " 

FN8  WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564; KIRSCHBAUM CO.
V. WALLING, 316 U.S. 517, 524. 

FN9  SHANKS V. DELAWARE, L. & W.R. CO., 239 U.S. 556, 558; CHICAGO &
NORTH WESTERN RY. CO. V. BOLLE, 284 U.S. 74, 78; CHICAGO & EASTERN
ILLINOIS R. CO. V. COMMISSION, 284 U.S. 296; NEW YORK, N.H. & H.R. CO.
V. BEZUE, 284 U.S. 415, 419. 

FN10  ACT OF AUGUST 11, 1939, 53 STAT. 1404; HEARINGS, SENATE
COMMITTEE ON THE JUDICIARY, AMENDING THE FEDERAL EMPLOYERS' LIABILITY
ACT, MARCH 28 AND 29, 1939, PP. 3-9, 26-30; S. REP. NO. 661, 76TH
CONG., 1ST SESS. 

FN11  PEDERSEN V. DELAWARE, L. & W.R. CO., 229 U.S. 146, 151; CF.
OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125. 

FN12  SEE THE CASES CITED IN NOTE 9, SUPRA. 

FN13  PHILADELPHIA, B. & W.R. CO. V. SMITH, 250 U.S. 101. 

FN14  THUS WE SAID AS TO A RATE CLERK EMPLOYED BY A MOTOR
TRANSPORTATION COMPANY: 

"IT IS PLAIN THAT THE RESPONDENT AS A TRANSPORTATION WORKER WAS
ENGAGED IN COMMERCE WITHIN THE MEANING OF THE ACT  ...  "  OVERNIGHT
MOTOR CO. V. MISSEL, 316 U.S. 572, 575. 

FN15  52 STAT. 1060-61. 

SEC. 3.  "(B)  'COMMERCE' MEANS TRADE, COMMERCE, TRANSPORTATION,
TRANSMISSION, OR COMMUNICATION AMONG THE SEVERAL STATES OR FROM ANY
STATE TO ANY PLACE OUTSIDE THEREOF. 

     .         .         .         .         . 

"(J)  'PRODUCED' MEANS PRODUCED, MANUFACTURED, MINED, HANDLED, OR IN
ANY OTHER MANNER WORKED ON IN ANY STATE; AND FOR THE PURPOSES OF THIS
ACT AN EMPLOYEE SHALL BE DEEMED TO HAVE BEEN ENGAGED IN THE PRODUCTION
OF GOODS IF SUCH EMPLOYEE WAS EMPLOYED IN PRODUCING, MANUFACTURING,
MINING, HANDLING, TRANSPORTING, OR IN ANY OTHER MANNER WORKING ON SUCH
GOODS, OR IN ANY PROCESS OR OCCUPATION NECESSARY TO THE PRODUCTION
THEREOF, IN ANY STATE." 

MR. JUSTICE MURPHY, DISSENTING: 

I THINK THAT PETITIONER IS COVERED BY THE FAIR LABOR STANDARDS ACT. 

IN USING THE PHRASE "ENGAGED IN COMMERCE" CONGRESS MEANT TO EXTEND
THE BENEFITS OF THE ACT TO EMPLOYEES "THROUGHOUT THE FARTHEST REACHES
OF THE CHANNELS OF INTERSTATE COMMERCE."  WALLING V. JACKSONVILLE PAPER
CO., 317 U.S. 564, 567.  WE RECENTLY CONSTRUED THE PHRASE TO INCLUDE
EMPLOYEES WHOSE ACTIVITIES ARE SO CLOSELY RELATED TO INTERSTATE
COMMERCE "AS TO BE IN PRACTICE AND IN LEGAL CONTEMPLATION A PART OF
IT."  OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125, 129, 130, 132. 
THIS PRACTICAL TEST WAS DERIVED FROM CASES SUCH AS PEDERSEN V.
DELAWARE, L. & W.R. CO., 229 U.S. 146, 151, AND PHILADELPHIA, B. & W.R.
CO. V. SMITH, 250 U.S. 101, CONSTRUING SIMILAR LANGUAGE IN THE FEDERAL
EMPLOYERS' LIABILITY ACT.  FN1  THE ACTIVITIES OF PETITIONER IN COOKING
FOR A TRAVELING MAINTENANCE CREW OF AN INTERSTATE RAILROAD ARE
SUFFICIENT TO SATISFY THIS TEST.  IT WAS SO HELD IN THE SMITH CASE, 250
U.S. 101, THE FACTS OF WHICH ARE VIRTUALLY IDENTICAL WITH THE INSTANT
CASE EXCEPT FOR THE IMMATERIAL DIFFERENCE THAT PETITIONER HERE WAS
EMPLOYED BY AN INDEPENDENT CONTRACTOR RATHER THAN BY THE RAILROAD
ITSELF.  FN2  THE REASONING OF THE SMITH CASE IS PERSUASIVE AND SHOULD
CONTROL THIS ONE. 

THE OPINION OF THE COURT, HOWEVER, REJECTS THE CONCEPT OF COVERAGE
USED IN THE SMITH CASE FOR THE NARROWER TEST OF WHETHER AN EMPLOYEE IS
ENGAGED "IN INTERSTATE TRANSPORTATION OR IN WORK SO CLOSELY RELATED TO
IT AS TO BE PRACTICALLY A PART OF IT," USED IN ANOTHER LINE OF CASES
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  FN3  I THINK THIS IS WRONG
FOR SEVERAL REASONS. 

THE FAIR LABOR STANDARDS ACT EXTENDS TO EMPLOYEES "ENGAGED IN
COMMERCE," NOT MERELY TO THOSE ENGAGED IN TRANSPORTATION.  FN4  AS THE
BOLLE CASE ITSELF POINTS OUT:  "COMMERCE COVERS THE WHOLE FIELD OF
WHICH TRANSPORTATION IS ONLY A PART."  284 U.S. AT 78.  HENCE, WHATEVER
BASIS THERE MAY HAVE BEEN FOR RESTRICTING THE COVERAGE OF THE FEDERAL
EMPLOYERS' LIABILITY ACT TO EMPLOYEES ACTUALLY ENGAGED IN
TRANSPORTATION BECAUSE OF THE FACT THAT THE ACT APPLIED ONLY TO THOSE
WORKING FOR EMPLOYERS ENGAGED IN INTERSTATE TRANSPORTATION BY RAIL,
FN5  CAN HAVE NO POSSIBLE APPLICATION OR BEARING ON THE INTERPRETATION
OF THE FAIR LABOR STANDARDS ACT.  THE COVERAGE OF THIS ACT IS MUCH MORE
EXTENSIVE.  IT IS NOT LIMITED TO EMPLOYEES OF INTERSTATE CARRIERS BUT
EXTENDS GENERALLY TO EMPLOYEES ENGAGED IN ALL KINDS OF COMMERCE,
INCLUDING TRANSPORTATION.  NOTHING IN THE ACT SUGGESTS THAT IT HAS A
NARROWER APPLICATION TO EMPLOYEES WHOSE WORK "IN COMMERCE" IS
TRANSPORTATION OR WORK CONNECTED THEREWITH, THAN IT HAS TO EMPLOYEES
WHO ARE ENGAGED IN COMMERCE BUT WHOSE WORK HAS NOTHING TO DO WITH
TRANSPORTATION.  SUCH A CONSTRUCTION IS UNTENABLE BECAUSE IT WOULD
DISCRIMINATE WITHOUT REASON BETWEEN DIFFERENT TYPES OF EMPLOYEES, ALL
OF WHOM FALL WITHIN THE SAME GENERAL STATUTORY CLASSIFICATION OF
"ENGAGED IN COMMERCE." 

THE NECESSARY EFFECT OF REJECTING THE SMITH CASE FOR THE RESTRICTIVE
CONCEPT OF "IN COMMERCE" WHICH WAS USED IN THE SHANKS,  FN6  BOLLE,
FN7  COMMISSION,  FN8  AND BEZUE  FN9  CASES IS TO INTRODUCE INTO THE
ADMINISTRATION OF THE FAIR LABOR STANDARDS ACT THAT CONCEDEDLY
UNDESIRABLE CONFUSION WHICH CHARACTERIZED THE APPLICATION OF THE
FEDERAL EMPLOYERS' LIABILITY ACT AND PROMPTED THE 1939 AMENDMENT (53
STAT. 1404) WHICH IN EFFECT REPUDIATED THE NARROW TEST OF THE SHANKS
LINE OF CASES.  THE REALITY OF THIS CONFUSION IS READILY DEMONSTRABLE. 
WE HAVE HELD THAT A RATE CLERK EMPLOYED BY AN INTERSTATE MOTOR CARRIER
FN10  AND A SELLER OF TICKETS ON A TOLL BRIDGE OVER WHICH INTERSTATE
TRAFFIC MOVES  FN11  ARE BOTH "ENGAGED IN COMMERCE" WITHIN THE MEANING
OF THE FAIR LABOR STANDARDS ACT.  YET, IN THE VIEW OF THE MAJORITY OF
THE COURT, WHEN THE EMPLOYEES' ACTIVITIES ARE IN THE FIELD OF
TRANSPORTATION, THE ACT APPARENTLY WILL NOT COVER  FN12  THOSE WHO WORK
IN AN INTERSTATE CARRIER'S REPAIR SHOP ON FACILITIES TO SUPPLY POWER
FOR MACHINERY USED IN REPAIRING INSTRUMENTALITIES OF TRANSPORTATION,
FN13  OR WHO HEAT CARS AND DEPOTS USED BY INTERSTATE PASSENGERS,  FN14
OR WHO STORE FUEL FOR THE USE OF INTERSTATE VEHICLES,  FN15  OR WHO
WORK ON SUCH VEHICLES WHEN WITHDRAWN FOR THE MOMENT FROM COMMERCE FOR
REPAIRS.  FN16  THE ANOMALY OF THIS IS CLEAR - THERE IS NO SOUND REASON
FOR EXTENDING THE BENEFITS OF THE ACT TO A RATE CLERK EMPLOYED IN THE
OFFICE OF AN INTERSTATE MOTOR CARRIER AND DENYING THEM TO THE JANITOR
WHO KEEPS THE OFFICE CLEAN AND WARM, OR THE EMPLOYEE WHO WORKS IN THE
CARRIER'S SHOP ON MACHINERY USED TO REPAIR INTERSTATE VEHICLES, OR ON
THE VEHICLES THEMSELVES. 

IF THE APPLICABLE PROVISION WERE "ENGAGED IN THE PRODUCTION OF GOODS
FOR COMMERCE" INSTEAD OF "ENGAGED IN COMMERCE," OUR DECISIONS MAKE IT
CLEAR THAT EMPLOYEES SUCH AS THE JANITOR AND THE SHOP TENDER AND
PROBABLY PETITIONER WOULD BE WITHIN THE ACT.  CF. KIRSCHBAUM CO. V.
WALLING, 316 U.S. 517; WARREN-BRADSHAW CO. V. HALL, 317 U.S. 88.  FN17
THE PHRASE "ENGAGED IN COMMERCE" SHOULD BE AS BROADLY CONSTRUED.  IN
THE WORDS OF ONE OF THE ACT'S SPONSORS, THE PHRASE EXTENDS TO
"EMPLOYEES WHO ARE A NECESSARY PART OF CARRYING ON" A BUSINESS
OPERATING IN INTERSTATE COMMERCE.  FN18  PETITIONER'S WORK WAS
EVIDENTLY CONSIDERED NECESSARY TO THE OPERATION OF THE RAILROAD, ELSE
IT WOULD HAVE MADE NO PROVISION FOR BOARDING ITS MAINTENANCE CREWS.  WE
HAVE CAST THE RELEVANT TESTS FOR DETERMINING THE SCOPE OF THE TWO
PHRASES OF COVERAGE IN SUBSTANTIALLY SIMILAR LANGUAGE.  IN KIRSCHBAUM
CO. V. WALLING, WORK WHICH "HAD SUCH A CLOSE AND IMMEDIATE TIE WITH THE
PROCESS OF PRODUCTION FOR COMMERCE" AS TO BE "AN ESSENTIAL PART OF IT"
WAS HELD TO BE "NECESSARY TO THE PRODUCTION OF GOODS FOR COMMERCE." 
316 U.S. AT 525-26.  CORRESPONDINGLY, IN OVERSTREET V. NORTH SHORE
CORP., WE HELD THAT THE PHRASE "ENGAGED IN COMMERCE" INCLUDES WORK
WHICH "IS SO INTIMATELY RELATED TO INTERSTATE COMMERCE 'AS TO BE IN
PRACTICE AND IN LEGAL CONTEMPLATION A PART OF IT.'"  318 U.S. AT 130. 
THE PURPOSE OF THE "PRODUCTION OF GOODS FOR COMMERCE" PHRASE WAS
OBVIOUSLY NOT TO CUT DOWN THE SCOPE OF "ENGAGED IN COMMERCE," BUT TO
BROADEN THE ACT'S APPLICATION BY REACHING CONDITIONS IN THE PRODUCTION
OF GOODS FOR COMMERCE WHICH CONGRESS CONSIDERED INJURIOUS TO INTERSTATE
COMMERCE.  SEE UNITED STATES V. DARBY, 312 U.S. 100.  THE EFFECT OF THE
COURT'S DECISION TODAY, HOWEVER, IS TO RECOGNIZE THAT FEDERAL POWER
OVER COMMERCE HAS BEEN SWEEPINGLY EXERCISED WHEN AN EMPLOYEE'S WORK IS
IN THE PRODUCTION OF GOODS FOR COMMERCE, BUT TO LIMIT IT, WHEN THE
EMPLOYEE'S ACTIVITIES ARE IN TRANSPORTATION OR CONNECTED THEREWITH, TO
THE NARROW AND LEGISLATIVELY REPUDIATED VIEW OF THE SHANKS, BOLLE,
COMMISSION AND BEZUE CASES.  SUCH AN UNBALANCED APPLICATION OF THE
STATUTE IS CONTRARY TO ITS PURPOSE OF AFFORDING COVERAGE BROADLY
"THROUGHOUT THE FARTHEST REACHES OF THE CHANNELS OF INTERSTATE
COMMERCE" TO EMPLOYEES "ENGAGED IN COMMERCE." 

THE JUDGMENT SHOULD BE REVERSED. 

FN1  ACT OF APRIL 22, 1908, 35 STAT. 65, AS IT WAS BEFORE THE
AMENDMENT OF 1939, 53 STAT. 1404.  45 U.S.C. SEC. 51 ET SEQ. 

FN2 THE APPLICATION OF THE FAIR LABOR STANDARDS ACT, OF COURSE,
DEPENDS UPON THE CHARACTER OF THE EMPLOYEES' ACTIVITIES, NOT THE NATURE
OF THE EMPLOYER'S BUSINESS.  OVERSTREET V. NORTH SHORE CORP., 318 U.S.
125, 132, AND CASES CITED. 

FN3  SHANKS V. DELAWARE, L. & W.R. CO., 239 U.S. 556, 558; CHICAGO &
NORTH WESTERN RY. CO. V. BOLLE, 284 U.S. 74; CHICAGO & EASTERN ILLINOIS
R. CO. V. COMMISSION, 284 U.S. 296; NEW YORK, N.H. & H.R. CO. V. BEZUE,
284 U.S. 415. 

FN4  THE ACT DEFINES "COMMERCE" AS:  "TRADE, COMMERCE,
TRANSPORTATION, TRANSMISSION, OR COMMUNICATION AMONG THE SEVERAL STATES
OR FROM ANY STATE TO ANY PLACE OUTSIDE THEREOF."  52 STAT. 1060, 29
U.S.C. SEC. 203. 

FN5  SEE CHICAGO & NORTH WESTERN RY. CO. V. BOLLE, 284 U.S. 74, 78. 

FN6  239 U.S. 556. 

FN7  284 U.S. 74. 

FN8  284 U.S. 296. 

FN9  284 U.S. 415. 

FN10  OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572. 

FN11  OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125. 

FN12  THIS IS DISCUSSED WHOLLY APART FROM THE QUESTION OF THE
APPLICABILITY OF SEC. 7 BECAUSE OF THE EXEMPTION CONTAINED IN SEC.
13(B)(1) OF THE ACT.  SEE SOUTHLAND GASOLINE CO. V. BAYLEY, ANTE, P.
44. 

FN13  CF. SHANKS V. DELAWARE, L. & W.R. CO., 239 U.S. 556. 

FN14  CF. CHICAGO & NORTH WESTERN RY. CO. V. BOLLE, 284 U.S. 74. 

FN15  CF. CHICAGO & EASTERN ILLINOIS R. CO. V. COMMISSION, 284 U.S.
296. 

FN16  CF. NEW YORK, N.H. & H.R. CO. V. BEZUE, 284 U.S. 415. 

FN17  EMPLOYEES COOKING FOR WORKERS ENGAGED IN THE PRODUCTION OF
GOODS FOR COMMERCE HAVE BEEN HELD TO BE SIMILARLY ENGAGED AND COVERED
BY THE ACT.  CONSOLIDATED TIMBER CO. V. WOMACK, 132 F.2D 101; HANSON V.
LAGERSTROM, 133 F.2D 120. 

FN18  SPEAKING FOR THE SENATE CONFEREES ON THE CONFERENCE REPORT,
SENATOR BORAH SAID:  "  ... IF THE BUSINESS IS SUCH AS TO OCCUPY THE
CHANNELS OF INTERSTATE COMMERCE, ANY OF THE EMPLOYEES WHO ARE A
NECESSARY PART OF CARRYING ON THAT BUSINESS ARE WITHIN THE TERMS OF
THIS BILL, AND, IN MY OPINION, ARE UNDER THE CONSTITUTION OF THE UNITED
STATES."  83 CONG. REC. 9170. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN
IN THIS DISSENT. 
..END :













UNITED STATES V. JOHNSON, 319 U.S. 503 


NO. 4.  ARGUED APRIL 10, 13, 1942.  REARGUED OCTOBER 12, 1942.  -
DECIDED JUNE 7, 1943.  - 123 F.2D 111, 142, REVERSED. 


1.  UNDER JUD.  CODE SEC. 284, A GRAND JURY CAN BE AUTHORIZED TO SIT
BEYOND THE TERM OF COURT AT WHICH IT WAS ORGANIZED ONLY TO FINISH
INVESTIGATIONS BEGUN DURING THAT TERM.  P. 510. 

2.  WHERE A GRAND JURY SAT TO THE END OF THE TERM AT WHICH IT WAS
ORGANIZED AND, BY AUTHORITY OF AN ORDER OF COURT, THROUGH THE TERM NEXT
FOLLOWING, A FURTHER ORDER AUTHORIZING IT TO CONTINUE TO SIT DURING THE
TERM NEXT SUCCEEDING "TO FINISH INVESTIGATIONS BEGUN BUT NOT FINISHED"
BY IT DURING THE ORIGINAL AND INTERMEDIATE TERMS IS TO BE READ, NOT AS
ATTEMPTING TO AUTHORIZE THE FINISHING OF INVESTIGATIONS BEGUN CONTRARY
TO JUD.  CODE SEC. 284 IN THE INTERMEDIATE TERM, BUT AS AUTHORIZING
ONLY THE FINISHING OF INVESTIGATIONS BEGUN DURING THE ORIGINAL TERM. 
P. 509. 

3.  A GRAND JURY IS INVESTED WITH BROAD INVESTIGATORIAL POWERS INTO
WHAT MAY BE FOUND TO BE OFFENSES AGAINST FEDERAL CRIMINAL LAW.  ITS
WORK IS NOT CIRCUMSCRIBED BY THE TECHNICAL REQUIREMENTS GOVERNING THE
ASCERTAINMENT OF GUILT ONCE IT HAS MADE THE CHARGES THAT CULMINATE ITS
INQUIRIES.  P. 510. 

4.  THAT FOR WHICH A GRAND JURY MAY BE AUTHORIZED TO CONTINUE ITS
SITTING AFTER THE TERM DURING WHICH IT WAS ORGANIZED IS THE GENERAL
SUBJECT MATTER ON WHICH IT ORIGINALLY BEGAN TO INVESTIGATE IN THAT
TERM.  AND WHERE ITS SESSIONS HAVE BEEN EXTENDED BY ORDER TO A
FOLLOWING TERM, IT IS NOT FORBIDDEN TO INQUIRE INTO NEW MATTERS WITHIN
THE GENERAL SCOPE OF ITS ORIGINAL INVESTIGATION.  P. 511. 

5.  A GRAND JURY, WHICH BEGAN ITS INVESTIGATION OF SYSTEMATIC INCOME
TAX EVASIONS DURING A DECEMBER 1939 TERM IN WHICH IT WAS ORGANIZED, AND
WHICH WAS ALLOWED TO CONTINUE ITS SITTING DURING THE NEXT TWO TERMS
(FEBRUARY AND MARCH) FOR THE PURPOSE OF FINISHING THE INVESTIGATION,
PROPERLY INCLUDED IN ITS INDICTMENT FOR AN ATTEMPTED EVASION OF TAXES
FOR THE YEAR 1939 THE FILING OF A FALSE RETURN IN MARCH 1940 WHICH WAS
A PART OF THE SYSTEMATIC, FRAUDULENT PRACTICE INVESTIGATED.  P. 511. 

6.  WHERE AN INDICTMENT ALLEGED THAT THE GRAND JURY'S INVESTIGATION
OF THE MATTERS CHARGED WAS BEGUN BUT NOT FINISHED AT THE TERM OF COURT
AT WHICH THE JURY WAS ORGANIZED, AND THAT THE JURY, PURSUANT TO ORDERS
OF COURT, HAD CONTINUED TO SIT DURING THE TWO FOLLOWING TERMS FOR THE
PURPOSE OF FINISHING SUCH INVESTIGATION; AND PLEAS AND MOTIONS WERE
FILED SEEKING TO PUT THESE ALLEGATIONS IN ISSUE AND TO HAVE THE
INDICTMENT QUASHED UPON THE GROUND THAT IT RESULTED FROM AN
INVESTIGATION BEGUN AFTER THE ORIGINAL TERM, BEYOND THE COMPETENCY OF
THE GRAND JURY, HELD THAT THE GOVERNMENT WAS NOT REQUIRED TO ANSWER OR
TO ASSUME THE BURDEN OF SUPPORTING WITH PROOF THE ALLEGATIONS OF THE
INDICTMENT; AND THAT THE MOTION TO QUASH WAS PROPERLY STRICKEN ON A
PRELIMINARY MOTION BY THE GOVERNMENT.  P. 512. 

7.  WHERE ONE PERSON WAS CHARGED IN SEVERAL COUNTS WITH ATTEMPTS TO
DEFEAT AND EVADE THE PAYMENT OF HIS INCOME TAXES FOR EACH OF SEVERAL
YEARS (MADE A FELONY BY SEC. 145(B) OF THE INTERNAL REVENUE CODE), AND
WITH FILING FALSE RETURNS ON MARCH 15TH OF EACH OF THE YEARS IN THE
PROCESS OF SUCH ATTEMPTS AND NOT MERELY WITH THE OFFENSE OF FILING
FALSE RETURNS, WHICH IS MADE A MISDEMEANOR BY SEC. 145(A) OF THAT CODE;
AND OTHERS WERE JOINED AS AIDERS AND ABETTORS (WHO UNDER SEC. 332 OF
THE CRIMINAL CODE ARE PRINCIPALS) CHARGED WITH ASSISTING HIM BY THEIR
CONDUCT DURING THE YEARS IN QUESTION BOTH BEFORE AND AFTER THE RETURNS
WERE FILED, BUT NOT AS PARTICIPATING IN THE ACTS OF FILING, HELD THAT
THE COUNTS, AS AGAINST THE AIDERS AND ABETTORS, WERE NEITHER
INCONSISTENT NOR DUPLICITOUS, NOR OBJECTIONABLE AS CHARGING THEM IN THE
SAME COUNT AS ACCESSORIES BOTH BEFORE AND AFTER THE FACT.  P. 514. 

8.  THE EVIDENCE CONCERNING THE CONNECTION OF THE DEFENDANT JOHNSON
WITH A NETWORK OF GAMBLING HOUSES, HIS WINNINGS, AND HIS PRIVATE
EXPENDITURES DURING THE YEARS IN QUESTION WAS SUFFICIENT TO WARRANT
LEAVING THE CASE TO THE JURY.  P. 515. 

9.  IN A PROSECUTION FOR ATTEMPTS TO AVOID PAYMENT OF INCOME TAXES,
THE FACT THAT THE DEFENDANT'S PRIVATE EXPENDITURES DURING THE YEARS IN
QUESTION EXCEEDED HIS AVAILABLE DECLARED RESOURCES HELD COMPETENT AS
EVIDENCE THAT HE HAD SOME UNREPORTED INCOME.  P. 517. 

10.  ONE MAY AID AND ABET ANOTHER IN ATTEMPTS TO EVADE INCOME TAXES,
WITHOUT PARTICIPATING IN THE MAKING OF THE OTHER'S FALSE RETURNS, BY
FALSELY PRETENDING TO BE THE PROPRIETOR OF ESTABLISHMENTS FROM WHICH
THE OTHER'S INCOME WAS DERIVED.  P. 518. 

EVIDENCE OF THE CONDUCT, ACTS AND ADMISSIONS OF PERSONS CHARGED AS
AIDERS AND ABETTORS AMPLY WARRANTED SENDING THEIR CASES TO THE JURY. 
P. 518. 

11.  ADMISSION OF TESTIMONY OF AN EXPERT WITNESS REGARDING INCOME AND
EXPENDITURES OF ONE OF THE ACCUSED IN THIS CASE, ALTHOUGH CONSISTING OF
COMPUTATIONS BASED ON SUBSTANTIALLY THE ENTIRE EVIDENCE IN THE RECORD,
HELD NOT AN INVASION OF THE PROVINCE OF THE JURY, WHERE, IN THE LIGHT
OF THE JUDGE'S CHARGE, ALL ISSUES ARE LEFT TO THE INDEPENDENT,
UNFORECLOSED DETERMINATION OF THE JURY.  P. 519. 

UNITED STATES V. JOHNSON.* 

*TOGETHER WITH NO. 5, UNITED STATES V. SOMMERS ET AL., ALSO ON WRIT
OF CERTIORARI, 315 U.S. 790, TO THE CIRCUIT COURT OF APPEALS FOR THE
SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 315 U.S. 790, TO REVIEW THE REVERSAL OF SENTENCES IMPOSED
BY THE DISTRICT COURT IN A PROSECUTION OF JOHNSON AND OTHERS FOR
ALLEGED VIOLATIONS OF PENAL PROVISIONS OF THE REVENUE ACTS OF 1936 AND
1938 AND FOR CONSPIRACY. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN INDICTMENT IN FIVE COUNTS.  FOUR CHARGE JOHNSON WITH
ATTEMPTS TO DEFRAUD THE INCOME TAX FOR EACH OF THE YEARS FROM 1936 TO
1939, INCLUSIVE, AND CHARGE A DOZEN OTHERS WITH AIDING AND ABETTING
JOHNSON'S EFFORTS.  THE FIFTH COUNT CHARGES JOHNSON AND THE OTHERS WITH
CONSPIRACY TO DEFRAUD THE INCOME TAX DURING THOSE YEARS.  THE
SUBSTANTIVE COUNTS CHARGE VIOLATIONS OF THE PENAL PROVISIONS OF THE
REVENUE ACTS OF 1936 AND 1938, NOW EMBODIED IN GENERAL FORM IN SEC.
145(B) OF THE INTERNAL REVENUE CODE, 53 STAT. 63, 26 U.S.C. SEC.
145(B).  THE CONSPIRACY COUNT IS BASED ON THE OLD SEC. 5440 OF THE
REVISED STATUTES, WHICH LATER BECAME SEC. 37 OF THE CRIMINAL CODE, 35
STAT. 1096, 18 U.S.C. SEC. 88. 

AS TO FOUR OF THE DEFENDANTS, THE CAUSE WAS DISMISSED UPON MOTION OF
THE UNITED STATES ATTORNEY; THREE OTHERS WERE ACQUITTED BY THE JURY. 
OF THE SIX REMAINING DEFENDANTS, THE JURY BROUGHT IN A VERDICT OF
GUILTY ON ALL FIVE COUNTS AGAINST JOHNSON, SOMMERS, HARTIGAN, FLANAGAN,
AND KELLY, AND AGAINST BROWN ON COUNTS THREE AND FOUR, THE SUBSTANTIVE
COUNTS FOR THE YEARS 1938 AND 1939, AND ON THE CONSPIRACY COUNT.  THE
DISTRICT COURT IMPOSED ON JOHNSON A SENTENCE OF FIVE YEARS ON EACH OF
THE FIRST FOUR COUNTS AND OF TWO YEARS ON THE CONSPIRACY COUNT, AS WELL
AS A FINE OF $10,000 ON EACH OF THE FIVE COUNTS.  THE TERMS OF
IMPRISONMENT WERE TO RUN CONCURRENTLY AND THE PAYMENT OF $10,000 WOULD
DISCHARGE ALL FINES.  LESSER CONCURRENT SENTENCES AND FINES WERE
IMPOSED ON THE OTHER DEFENDANTS. 

THE CIRCUIT COURT OF APPEALS REVERSED THE JUDGMENTS.  ITS HOLDING
UNDERMINED THE ENTIRE PROSECUTION IN THAT IT FOUND THE INDICTMENT VOID
BECAUSE IT WAS RETURNED BY AN ILLEGALLY CONSTITUTED GRAND JURY.  BUT IT
WENT BEYOND THAT MAJOR RULING.  IT FOUND THE FOUR SUBSTANTIVE COUNTS OF
THE INDICTMENT, IN SO FAR AS THEY CHARGED DEFENDANTS AS AIDERS AND
ABETTORS, FATALLY DEFECTIVE.  PROCEEDING TO THE MERITS, THE COURT HELD
THAT THE CASE PROPERLY WENT TO THE JURY AGAINST JOHNSON ON THE LAST
FOUR COUNTS AND THAT THE EVIDENCE SUSTAINED THE VERDICT AGAINST ALL THE
DEFENDANTS ON THE CONSPIRACY COUNT, BUT THAT A VERDICT SHOULD HAVE BEEN
DIRECTED FOR JOHNSON ON THE FIRST COUNT AND FOR THE OTHER DEFENDANTS ON
ALL BUT THE CONSPIRACY COUNT.  FINALLY, IT FOUND THAT THE TESTIMONY OF
AN EXPERT ACCOUNTANT FOR THE GOVERNMENT INVADED THE JURY'S PROVINCE AND
THAT ITS ADMISSION WAS PREJUDICIAL ERROR.  123 F.2D 111.  JUDGE EVANS
DISSENTED ON ALL POINTS.  HE FOUND NO INFIRMITIES IN THE INDICTMENT OR
IN THE RULINGS BY THE TRIAL JUDGE, AND THOUGHT THAT THE CASE WAS
PROPERLY COMMITTED TO THE JURY.  ID., 128.  ON REHEARING, THE CIRCUIT
COURT OF APPEALS ADHERED TO ITS VIEWS, BUT WITHDREW AN ERRONEOUS PART
OF ITS GROUNDS FOR DEEMING ADMISSION OF THE EXPERT ACCOUNTANT'S
TESTIMONY TO BE PREJUDICIAL.  123 F.2D 142.  WE BROUGHT THE CASE HERE
BECAUSE IT CONCERNS SERIOUS ASPECTS OF FEDERAL CRIMINAL JUSTICE.  315
U.S. 790. 

INASMUCH AS THE INITIATION OF PROSECUTION THROUGH GRAND JURIES FORMS
A VITAL FEATURE OF THE FEDERAL SYSTEM OF CRIMINAL JUSTICE, THE LAW
GOVERNING ITS PROCEDURES AND THE APPROPRIATE CONSIDERATIONS FOR
DETERMINING THE LEGALITY OF ITS ACTIONS ARE MATTERS OF FIRST
IMPORTANCE.  THEREFORE, IN DECIDING THAT THE DEFENDANTS WERE HELD TO
ANSWER FOR AN INFAMOUS CRIME ON WHAT WAS MERELY A SCRAP OF PAPER AND
NOT "THE INDICTMENT OF THE GRAND JURY" AS REQUIRED BY THE FIFTH
AMENDMENT, THE LOWER COURT WENT BEYOND THAT WHICH RELATES TO THE
SPECIAL CIRCUMSTANCES OF A PARTICULAR CASE.  UNLIKE MOST OF THE OTHER
RULINGS BELOW, THE COURT HERE DEALT WITH A MATTER OF DEEP CONCERN TO
THE ADMINISTRATION OF FEDERAL CRIMINAL LAW.  AT THE ROOT OF THE COURT'S
DECISION IS ITS FINDING THAT AN ORDER EXTENDING THE LIFE OF THE GRAND
JURY WAS VOID, AND THAT THE INDICTMENT WAS THEREFORE RETURNED BY A BODY
NOT LAWFULLY EMPOWERED TO ACT.  A BRIEF HISTORY OF THE PROCEEDINGS
WHICH LED TO THE FILING OF THIS INDICTMENT IN OPEN COURT ON MARCH 29,
1940, IS THEREFORE ESSENTIAL. 

TERMS OF COURT OF THE DISTRICT COURT FOR THE EASTERN DIVISION OF THE
NORTHERN DISTRICT OF ILLINOIS ARE, BY STATUTE, FIXED FOR THE FIRST
MONDAY IN FEBRUARY, MARCH, APRIL, MAY, JUNE, JULY, SEPTEMBER, OCTOBER,
AND NOVEMBER, AND ON THE THIRD MONDAY IN DECEMBER.  28 U.S.C. SEC.
152.  THIS GRAND JURY WAS IMPANELED AT THE DECEMBER 1939 TERM OF THE
DISTRICT COURT, AND WAS THEREFORE EMPOWERED TO SIT THROUGH JANUARY
1940.  BY AN ORDER, THE VALIDITY OF WHICH IS UNDISPUTED, ITS LIFE WAS
CONTINUED INTO THE FEBRUARY TERM.  AND ON FEBRUARY 28, 1940, THE
DISTRICT COURT AUTHORIZED A FURTHER CONTINUANCE OF THIS GRAND JURY
DURING THE MARCH 1940 TERM.  THIS IS THE ORDER WHICH GIVES RISE TO THE
CONTROVERSY, FOR UPON ITS LEGALITY DEPENDS THE VALIDITY OF THE
INDICTMENT THEREAFTER RETURNED BY THE GRAND JURY.  THE DISPUTED ORDER
READS AS FOLLOWS: 

"NOW COMES THE SECOND DECEMBER TERM 1939 GRAND JURY FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN DIVISION, BY DOROTHY W. BINDER,
FOREWOMAN, AND IN OPEN COURT REQUESTS THAT AN ORDER BE ENTERED
AUTHORIZING THEM, THE SAID SECOND DECEMBER, 1939 GRAND JURY, HERETOFORE
AUTHORIZED TO SIT DURING THE FEBRUARY 1940 TERM OF THIS COURT, TO
CONTINUE TO SIT DURING THE TERM OF COURT SUCCEEDING THE SAID FEBRUARY
TERM OF COURT, TO-WIT, THE MARCH 1940 TERM OF COURT, TO FINISH
INVESTIGATIONS BEGUN BUT NOT FINISHED BY SAID GRAND JURY DURING THE
SAID DECEMBER 1939 AND THE SAID FEBRUARY 1940 TERMS OF THIS COURT, AND
WHICH SAID INVESTIGATIONS CANNOT BE FINISHED DURING THE SAID FEBRUARY
1940 TERM OF COURT; AND THE COURT BEING FULLY ADVISED IN THE PREMISES, 

"IT IS THEREFORE ORDERED THAT THE SECOND DECEMBER 1939 GRAND JURY,
NOW SITTING IN THIS DIVISION AND DISTRICT, BE, AND IT IS HEREBY
AUTHORIZED TO CONTINUE TO SIT DURING THE MARCH 1940 TERM OF COURT FOR
THE PURPOSE OF FINISHING SAID INVESTIGATIONS." 

THE COURT BELOW CONSTRUED THIS ORDER AS AUTHORIZING THE GRAND JURY TO
SIT DURING MARCH TO ENABLE IT TO FINISH INVESTIGATIONS BEGUN IN
FEBRUARY, WHILE UNDER THE GOVERNING STATUTE, SEC. 284 OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 421, IT COULD BE AUTHORIZED ONLY "TO FINISH
INVESTIGATIONS BEGUN BUT NOT FINISHED BY SUCH GRAND JURY" DURING ITS
ORIGINAL TERM, I.E., THE DECEMBER 1939 TERM.  SO TO READ THE ORDER,
HOWEVER, IS TO DISSOCIATE LANGUAGE FROM ITS APPROPRIATE FUNCTION AND TO
DISREGARD THE HISTORIC ROLE OF THE GRAND JURY IN OUR FEDERAL JUDICIAL
SYSTEM.  SINCE THE LAW PERMITS A CONTINUANCE OF THE GRAND JURY "TO
FINISH INVESTIGATIONS" BEGUN DURING ITS ORIGINAL TERM, THE MOST
ELEMENTARY REQUIREMENT OF ATTRIBUTING LEGALITY TO JUDICIAL ACTION
SHOULD, UNLESS VIOLENCE IS DONE TO ENGLISH SPEECH, LEAD TO A READING OF
THE ORDER OF FEBRUARY 28 SO AS TO RESTRICT THE GRAND JURY TO THAT WHICH
IT LEGALLY COULD DO INSTEAD OF TO AN EXPANSIVE READING MAKING FOR
ILLEGALITY. 

THE FOUNDATION FOR THE HOLDING THAT THE ORDER EXTENDING THE GRAND
JURY INTO THE MARCH TERM PURPORTED TO GIVE AUTHORITY IN DEFIANCE OF THE
STATUTE IS THE PHRASE IN THE ORDER RECITING THE GRAND JURY'S REQUEST
THAT IT BE AUTHORIZED TO CONTINUE ITS SITTING DURING THE MARCH TERM "TO
FINISH INVESTIGATIONS BEGUN BUT NOT FINISHED BY SAID GRAND JURY DURING
THE SAID DECEMBER 1939 AND THE SAID FEBRUARY 1940 TERMS OF THIS COURT,
AND WHICH SAID INVESTIGATIONS CANNOT BE FINISHED DURING THE SAID
FEBRUARY 1940 TERM OF COURT."  THE CIRCUIT COURT OF APPEALS READ THIS
TO MEAN THAT THE GRAND JURY REQUESTED A CONTINUANCE INTO THE MARCH TERM
TO FINISH INVESTIGATIONS BEGUN IN THE FEBRUARY AS WELL AS IN THE
ORIGINAL DECEMBER TERM.  BUT SURELY THE RECITAL "TO FINISH
INVESTIGATIONS BEGUN BUT NOT FINISHED BY SAID GRAND JURY DURING THE
SAID DECEMBER 1939 AND THE SAID FEBRUARY 1940 TERMS," IS, AT THE WORST,
DUBIOUS AS TO WHAT WAS BEGUN AND WHAT WAS FINISHED.  JUDGE EVANS
RIGHTLY RESOLVED THE AMBIGUITY BY READING THE DISPUTED LANGUAGE "DURING
THE SAID DECEMBER 1939 AND THE SAID FEBRUARY 1940 TERMS" AS QUALIFYING
"FINISHED" RATHER THAN "BEGUN," AND THEREFORE MEANING THAT THE GRAND
JURY WAS UNABLE TO FINISH DURING THE DECEMBER AND FEBRUARY TERMS THAT
WHICH IT HAD BEGUN WHEN IT FIRST CAME INTO BEING IN THE DECEMBER TERM. 
SUCH A RENDERING MAKES GOOD ENGLISH AS WELL AS GOOD SENSE.  TO READ IT
AS THE COURT BELOW READ IT IS TO GO OUT OF ONE'S WAY IN FINDING THAT
THE JUDGE WHO GRANTED THE ORDER OF EXTENSION EITHER WILFULLY OR
IRRESPONSIBLY DID A LEGALLY FORBIDDEN ACT, NAMELY, TO ALLOW A GRAND
JURY TO SIT BEYOND THE TERM AND TAKE UP NEW INSTEAD OF FINISHING OLD
BUSINESS.  FOR THE LEGAL LIMITATIONS GOVERNING EXTENSION OF THE LIFE OF
A GRAND JURY DO NOT LIE IN A RECONDITE FIELD OF LAW IN WHICH A FEDERAL
DISTRICT JUDGE MAY EASILY SLIP.  CERTAINLY EVERY DISTRICT JUDGE IN A
GREAT METROPOLITAN CENTER LIKE CHICAGO KNOWS THAT IN AUTHORIZING A
GRAND JURY TO CONTINUE TO SIT "FOR THE PURPOSE OF FINISHING" THEIR
"INVESTIGATIONS," THE "INVESTIGATIONS" MUST HAVE BEEN BEGUN DURING THE
GRAND JURY'S ORIGINAL TERM AND THAT NEW DOMAINS OF INQUIRY MAY NOT
THEREAFTER BE ENTERED BY THE GRAND JURY. 

THE FAILURE OF THE COURT BELOW TO RECOGNIZE THE ESSENTIAL FUNCTION OF
THE GRAND JURY IN OUR SYSTEM OF CRIMINAL JUSTICE IS REVEALED BY ITS
SUBSIDIARY ARGUMENT IN REGARD TO THE FOURTH COUNT.  SINCE THAT CHARGES
AN ATTEMPTED EVASION OF JOHNSON'S TAXES FOR THE YEAR 1939, AND SINCE
SUCH AN ATTEMPT COULD NOT HAVE BECOME MANIFEST PRIOR TO THE FILING OF
HIS RETURN ON MARCH 15, 1940, THE COURT REASONED THAT THE
"INVESTIGATION" INTO THIS CHARGE NECESSARILY COULD NOT HAVE BEEN BEGUN
PRIOR TO THE MARCH TERM AND THAT IT THEREFORE CONSTITUTED A "NEW"
INVESTIGATION.  SUCH A VIEW MISCONCEIVES THE DUTIES AND WORKINGS OF A
GRAND JURY.  IT IS INVESTED WITH BROAD INVESTIGATORIAL POWERS INTO WHAT
MAY BE FOUND TO BE OFFENSES AGAINST FEDERAL CRIMINAL LAW.  ITS WORK IS
NOT CIRCUMSCRIBED BY THE TECHNICAL REQUIREMENTS GOVERNING THE
ASCERTAINMENT OF GUILT ONCE IT HAS MADE THE CHARGES THAT CULMINATE ITS
INQUIRIES.  A GRAND JURY THAT BEGINS THE INVESTIGATION OF WHAT MAY BE
FOUND TO BE OBSTRUCTIONS TO JUSTICE OR PASSPORT FRAUDS OR TAX EVASIONS
OPENS UP ALL THE RAMIFICATIONS OF THE PARTICULAR FIELD OF INQUIRY.  ITS
INVESTIGATION IN SUCH CASES MAY BE INTO A COURSE OF CONDUCT CONTINUING
DURING, AND PERHAPS EVEN AFTER, ITS INQUIRY.  AND CONGRESS CERTAINLY
DID NOT RESTRICT A GRAND JURY IN DEALING WITH ALL CRIMES DISCLOSED BY
ITS INVESTIGATION.  THE VERY PURPOSE OF THE ACT OF FEBRUARY 25, 1931,
46 STAT. 1417, 28 U.S.C. SEC. 421, ALLOWING GRAND JURIES TO CONTINUE
INVESTIGATIONS BEYOND THE ARBITRARY PERIODS THAT CONSTITUTE TERMS OF
COURT IN THE VARIOUS FEDERAL DISTRICTS, WAS TO MAKE THE GRAND JURY A
MORE CONTINUOUS AND THEREFORE MORE COMPETENT INSTRUMENT OF WHAT HAVE
BECOME INCREASINGLY MORE COMPLICATED INQUIRIES INTO VIOLATIONS OF THE
ENLARGED DOMAIN OF FEDERAL CRIMINAL LAW.  THAT CONGRESS DID NOT HAVE A
RESTRICTIVE VIEW OF THE "INVESTIGATIONS" WHICH A GRAND JURY WAS
AUTHORIZED TO PURSUE TO COMPLETION BEYOND ITS ORIGINAL TERM IS
EMPHASIZED BY THE ACT OF APRIL 17, 1940, 54 STAT. 110, AMENDING THE ACT
OF 1931, SUPRA. UNDER THE ORIGINAL ACT A GRAND JURY WAS NOT PERMITTED
TO SIT "DURING MORE THAN THREE TERMS."  BUT SINCE THE TERMS OF COURT
ARE OF VARYING DURATION, A FACT TO WHICH THE ATTENTION OF CONGRESS WAS
DIRECTED BY THE EXPERIENCE PARTICULARLY IN THE SOUTHERN DISTRICT OF NEW
YORK, CONGRESS EXTENDED THE POTENTIAL LIFE OF A GRAND JURY FROM "THREE
TERMS," WHICH IN SOME DISTRICTS MIGHT BE ONLY THREE MONTHS, TO
"EIGHTEEN MONTHS."  THE CONSIDERATIONS WHICH INDUCED CONGRESS TO
ENLARGE STILL FURTHER THE ALREADY AMPLE SCOPE OF GRAND JURY
INVESTIGATIONS AND THE MANNER IN WHICH THE HOUSE COMMITTEE REPORT SPOKE
OF A GRAND JURY'S WORK, SEE H. REP. NO. 1747, 76TH CONG., 3D SESS., ARE
BUT CONFIRMATION THAT THAT FOR WHICH A GRAND JURY MAY CONTINUE ITS
SITTING IS THE GENERAL SUBJECT-MATTER ON WHICH IT ORIGINALLY BEGAN ITS
LABORS.  IT IS NOT FORBIDDEN TO INQUIRE INTO NEW MATTERS WITHIN THE
GENERAL SCOPE OF ITS INQUIRY BUT ONLY INTO A TRULY NEW, IN THE SENSE OF
DISSOCIATED, SUBJECTMATTER. 

ONE CAN HARDLY CONCEIVE OF A CLEARER CASE OF A CONTINUING
INVESTIGATION OF AN OLD SUBJECT-MATTER THAN THAT PRESENTED HERE.  THE
GRAND JURY IN DECEMBER 1939 BEGAN INVESTIGATION INTO ALLEGED TAX
EVASIONS BY JOHNSON.  IT WAS ALLOWED TO CONTINUE ITS SITTING DURING THE
FEBRUARY TERM, AND ITS AUTHORITY WAS FURTHER EXTENDED TO PERMIT IT TO
SIT DURING MARCH.  THE GRAND JURY FOUND A SYSTEMATIC PRACTICE OF TAX
EVASION OVER A COURSE OF YEARS, AND YET, SO WE ARE URGED, IT COULD NOT
CONTINUE TO FERRET OUT ONE MORE PHASE OF THIS CONTINUOUS COURSE OF
FRAUDULENT CONDUCT BECAUSE THAT DID NOT RIPEN INTO A SEPARATE OFFENSE
UNTIL THE LAST TERM OF THE GRAND JURY'S SITTING.  SO TO HOLD IS TO MAKE
OF THE GRAND JURY A PAWN IN A TECHNICAL GAME INSTEAD OF RESPECTING IT
AS A GREAT HISTORIC INSTRUMENT OF LAY INQUIRY INTO CRIMINAL
WRONGDOING.  SEE HALE V. HENKEL, 201 U.S. 43, 65; BLAIR V. UNITED
STATES, 250 U.S. 273, 282; COBBLEDICK V. UNITED STATES, 309 U.S. 323,
327.    BY WAY OF REINSURANCE OF ITS MAIN BASIS FOR INVALIDATING THE
INDICTMENT, THE CIRCUIT COURT OF APPEALS RELIED ON A WHOLLY DIFFERENT
LINE OF ARGUMENT FROM THAT WHICH WE HAVE JUST REJECTED.  IT HELD THAT
THE PRELIMINARY MOTIONS, BY WHICH THE DEFENDANTS SOUGHT TO QUASH THE
INDICTMENT BECAUSE OF THE GRAND JURY'S ILLEGALITY, RAISED ISSUES OF
FACT.  IT THEREFORE FOUND THAT THE DISTRICT COURT, INSTEAD OF GRANTING
THE GOVERNMENT'S MOTION TO STRIKE THE PLEAS IN ABATEMENT, SHOULD HAVE
PUT THE GOVERNMENT TO ANSWER.  THE INDICTMENT ITSELF ALLEGED THAT THE
GRAND JURY "HAVING BEGUN BUT NOT FINISHED DURING SAID DECEMBER TERM
...  AN INVESTIGATION OF THE MATTERS CHARGED IN THIS INDICTMENT, AND
HAVING CONTINUED TO SIT BY ORDER OF THIS COURT  ...  DURING THE
FEBRUARY AND MARCH TERMS  ...  FOR THE PURPOSE OF FINISHING
INVESTIGATIONS BEGUN BUT NOT FINISHED DURING SAID DECEMBER TERM.  ..." 
THE COURT BELOW WAS APPARENTLY OF THE VIEW THAT A MERE DENIAL OF SUCH A
SOLEMN ALLEGATION BY THE GRAND JURY PUTS ITS TRUTH IN ISSUE, THAT THE
BURDEN IS UPON THE GOVERNMENT "TO SUPPORT IT WITH PROOF," AND THAT
FAILURE TO VINDICATE THE AUTHORITY OF THE GRAND JURY IS "FATAL." 
ASSUMING THAT UNDER ANY CIRCUMSTANCES A GRAND JURY'S ALLEGATION THAT
THE INDICTMENT WHICH IT RETURNS WAS THE OUTCOME OF AN INVESTIGATION
"BEGUN" DURING ITS ORIGINAL TERM AND WAS NOT A FORBIDDEN NEW
INVESTIGATION "BEGUN" DURING AN EXTENDED TERM, WITHIN THE MEANING OF
SEC. 284 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 421, PRESENTED A
TRAVERSABLE ISSUE, THE CIRCUMSTANCES THAT COULD RAISE SUCH AN ISSUE
WOULD INDEED HAVE TO BE EXTRAORDINARY AND THE BURDEN OF ESTABLISHING IT
WOULD REST HEAVILY ON DEFENDANTS.  COMPARE ROCHE V. EVAPORATED MILK
ASSN., ANTE, P. 21. 

WERE THE RULING OF THE COURT BELOW ALLOWED TO STAND, THE MERE
CHALLENGE, IN EFFECT, OF THE REGULARITY OF A GRAND JURY'S PROCEEDINGS
WOULD CAST UPON THE GOVERNMENT THE AFFIRMATIVE DUTY OF PROVING SUCH
REGULARITY.  NOTHING COULD BE MORE DESTRUCTIVE OF THE WORKINGS OF OUR
GRAND JURY SYSTEM OR MORE HOSTILE TO ITS HISTORIC STATUS.  THAT
INSTITUTION, UNLIKE THE SITUATION IN MANY STATES, IS PART OF THE
FEDERAL CONSTITUTIONAL SYSTEM.  TO ALLOW THE INTRUSION, IMPLIED BY THE
LOWER COURT'S ATTITUDE, INTO THE INDISPENSABLE SECRECY OF GRAND JURY
PROCEEDINGS - AS IMPORTANT FOR THE PROTECTION OF THE INNOCENT AS FOR
THE PURSUIT OF THE GUILTY - WOULD SUBVERT THE FUNCTIONS OF FEDERAL
GRAND JURIES BY ALL SORTS OF DEVICES WHICH SOME STATES HAVE SEEN FIT TO
PERMIT IN THEIR LOCAL PROCEDURE, SUCH AS READY RESORT TO INSPECTION OF
GRAND JURY MINUTES.  THE DISTRICT COURT WAS QUITE WITHIN ITS RIGHT IN
STRIKING THE PRELIMINARY MOTIONS WHICH CHALLENGED THE LEGALITY OF THE
GRAND JURY THAT RETURNED THE INDICTMENT.  TO CONSTRUE THESE PLEADINGS
AS THE COURT BELOW DID WOULD BE TO RESUSCITATE SEVENTEENTH CENTURY
NOTIONS OF INTERPRETING PLEADINGS AND TO DO SO IN AN AGGRAVATED FORM BY
APPLYING THEM TO THE ADMINISTRATION OF THE CRIMINAL LAW IN THE
TWENTIETH CENTURY.  PROTECTIONS OF SUBSTANCE WHICH NOW SAFEGUARD THE
RIGHTS OF THE ACCUSED DO NOT REQUIRE THE INVENTION OF SUCH NEW
REFINEMENTS OF CRIMINAL PLEADING. 

ANOTHER RULING OF GENERAL IMPORTANCE IN THE LAW OF CRIMINAL PLEADING
WAS MADE BY THE CIRCUIT COURT OF APPEALS.  IT WILL BE RECALLED THAT THE
FIRST FOUR COUNTS CHARGE JOHNSON WITH ATTEMPTS TO DEFRAUD THE REVENUE,
AND THAT THE OTHER DEFENDANTS ARE IN THE SAME COUNTS CHARGED AS AIDERS
AND ABETTORS OF JOHNSON.  THE COURT BELOW RULED THAT A DEMURRER OF THE
DEFENDANTS OTHER THAN JOHNSON TO THOSE FOUR COUNTS SHOULD HAVE BEEN
SUSTAINED.  IT FOUND THAT THESE COUNTS WERE, AS TO THE CO-DEFENDANTS,
BOTH INCONSISTENT AND DUPLICITOUS.  THEY WERE DEEMED INCONSISTENT IN
THAT THE OFFENSES AGAINST JOHNSON WERE CHARGED AS OF MARCH 15TH OF EACH
YEAR, WHEREAS THE CO-DEFENDANTS "AS AIDERS AND ABETTORS ARE CHARGED
WITH AN OFFENSE WHICH EXTENDED OVER A PERIOD OF YEARS."  THEY WERE
DEEMED DUPLICITOUS IN THAT THE CO-DEFENDANTS WERE IN EACH COUNT CHARGED
WITH CONDUCT THAT AIDED AND ABETTED JOHNSON BOTH BEFORE AND AFTER MARCH
15TH OF THE RELEVANT YEAR, AND WERE THEREFORE, IN THE COURT'S VIEW,
CHARGED IN THE SAME COUNT AS ACCESSORIES BOTH BEFORE AND AFTER THE
FACT. 

WE ARE CONSTRAINED TO SAY THAT THE COURT WAS LED INTO ERROR BY A
MISREADING OF THE STATUTES WHICH UNDERLIE THESE COUNTS AND THE
ALLEGATIONS WHICH LAID THE OFFENSES.  THE BASIS OF EACH OF THE FOUR
COUNTS, WE HAVE NOTED, IS A PENAL SANCTION IN SUCCESSIVE REVENUE LAWS,
NOW GENERALIZED BY THE PROVISION IN THE INTERNAL REVENUE CODE, 53 STAT.
63, 26 U.S.C. SEC. 145(B), WHICH MAKES IT A FELONY FOR ANY PERSON WHO,
BEING SUBJECT TO THE INCOME TAX, "WILLFULLY ATTEMPTS IN ANY MANNER TO
EVADE OR DEFEAT ANY TAX IMPOSED BY THIS CHAPTER OR THE PAYMENT
THEREOF."  SECTION 332 OF THE CRIMINAL CODE (18 U.S.C. SEC. 550) MAKES
EVERY PERSON WHO "DIRECTLY COMMITS ANY ACT CONSTITUTING AN OFFENSE
DEFINED IN ANY LAW OF THE UNITED STATES, OR AIDS, ABETS, COUNSELS,
COMMANDS, INDUCES, OR PROCURES ITS COMMISSION" A "PRINCIPAL."  THE VICE
OF THE LOWER COURT'S RULING IS ITS MISCONCEPTION OF THE NATURE OF THE
OFFENSE DEFINED BY SEC. 145(B) WITH WHICH JOHNSON IS CHARGED, AS WELL
AS THAT OF THE RELATION OF AIDERS AND ABETTORS, MADE PRINCIPALS BY SEC.
332 OF THE CRIMINAL CODE TO SUCH AN OFFENSE.  IN SHORT, THE CIRCUIT
COURT OF APPEALS READ THE SUBSTANTIVE COUNTS AS THOUGH THEY CHARGED
JOHNSON MERELY WITH THE FILING OF FALSE RETURNS ON MARCH 15TH.  THAT
MAY ONLY BE A MISDEMEANOR UNDER SEC. 145(A) OF THE INTERNAL REVENUE
CODE, BUT THAT IS NOT THE OFFENSE WITH WHICH JOHNSON WAS CHARGED.  HE
WAS CHARGED WITH A FELONY MADE SO BY SEC. 145(B), THE MUCH MORE
COMPREHENSIVE VIOLATION OF ATTEMPTING "IN ANY MANNER TO DEFEAT AND
EVADE" THE PAYMENT OF AN INCOME TAX.  THE FALSE RETURN FILED ON MARCH
15TH WAS ONLY ONE ASPECT OF WHAT WAS A PROCESS OF TAX EVASION.  AND ALL
WHO CONTRIBUTED CONSCIOUSLY TO FURTHERING THAT ILLICIT ENTERPRISE AIDED
AND ABETTED ITS COMMISSION AND THEREBY, UNDER SEC. 332 OF THE CRIMINAL
CODE, BECAME PRINCIPALS IN THE COMMON ENTERPRISE.  THEREFORE,
NONPARTICIPATION IN MERELY ONE PHASE OF JOHNSON'S ATTEMPTED EVASION,
NAMELY, THE FILING OF A FALSE RETURN ON MARCH 15TH, IS IN ITSELF
IRRELEVANT, AND IT IS EQUALLY IRRELEVANT THAT THE AID WHICH THE CO
DEFENDANTS GAVE JOHNSON CONTINUED AFTER MARCH 15TH AS WELL AS PRECEDED
IT.  THE CRIME OF EACH OF THE FIRST FOUR COUNTS IS THE WILFUL ATTEMPT
TO EVADE THE PAYMENT OF WHAT WAS DUE TO THE REVENUE.  ALL WHO
PARTICIPATED IN THAT ATTEMPT WERE CONTRIBUTORS TO THE ILLICIT
ENTERPRISE.  THERE WAS ONLY ONE OFFENSE IN EACH COUNT, AND ALL WHO
SHARED IN ITS EXECUTION HAVE EQUAL RESPONSIBILITY BEFORE THE LAW,
WHATEVER MAY HAVE BEEN THE DIFFERENT ROLES OF LEADERSHIP AND
SUBORDINATION AMONG THEMSELVES.  THERE IS NEITHER INCONSISTENCY NOR
DUPLICITY IN THESE FOUR COUNTS AND THE DEMURRERS TO THEM WERE PROPERLY
OVERRULED. 

THERE REMAIN ONLY QUESTIONS PERTINENT TO THIS CASE, AND MORE
PARTICULARLY WHETHER THE EVIDENCE WARRANTED LEAVING THE CASE TO THE
JURY.  THIS WAS A SIX WEEKS' TRIAL OF WHICH THE RECORD, EVEN IN THE
ABBREVIATED FORM USED ON APPEAL, RUNS OVER A THOUSAND PRINTED PAGES. 
WE HAVE PAINSTAKINGLY EXAMINED IT ALL, BUT IT WOULD BE UNPROFITABLE TO
GIVE MORE THAN THE BAREST OUTLINE OF WHAT WENT TO THE JURY.  THE
DETAILS SUFFICIENTLY APPEAR FROM THE TWO OPINIONS BELOW. 

JOHNSON WAS A GAMBLER ON A MAGNIFICENT SCALE.  THE INCOME WHICH HE
HIMSELF REPORTED FROM WINNINGS FOR ONE OF THE YEARS IN QUESTION
EXCEEDED A QUARTER OF A MILLION DOLLARS.  THE LOWEST ANNUAL INCOME SO
REPORTED FOR THE PERIOD IS MORE THAN $100,000.  HIS CO-DEFENDANTS WERE
PLAINLY SMALLER FRY IN CHICAGO'S GAMBLING WORLD.  THEIR REPORTED ANNUAL
GAMBLING INCOME DURING THE SAME PERIOD RANGED FROM $3,600 TO $19,000. 
CONCEDEDLY JOHNSON FREQUENTED SOME HALF-DOZEN GAMBLING HOUSES,
OSTENSIBLY SEPARATELY OWNED BY THE OTHERS FOUND GUILTY, EXCEPTING ONLY
BROWN WHO WAS THE NOMINAL OWNER OF A SO-CALLED CURRENCY EXCHANGE WHICH
FURNISHED PRIVATE BANKING FACILITIES FOR THESE GAMBLING HOUSES. 
INDISPUTABLY, ALSO, JOHNSON HAD A CONTINUOUS AND CLOSE RELATION TO
THESE GAMBLING HOUSES.  THE DECISIVE ISSUE OF FACT WAS WHETHER
JOHNSON'S RELATION TO THESE RESORTS WAS THAT OF A PATRON OR OF A
PROPRIETOR.  THE TESTIMONY BOTH FOR THE GOVERNMENT AND FOR THE
DEFENDANTS FOCUSSED ON THAT QUESTION.  DURING THE COURSE OF HIS
EXTENSIVE TESTIMONY, JOHNSON HIMSELF PUT SIMPLY AND COMPLETELY THE ONLY
REAL PROBLEM BEFORE THE JURY WHEN HE SWORE THAT HE "NEVER HAD ANY
FINANCIAL INTEREST IN ANY GAMBLING CLUB OPERATED BY ANY OF THE
DEFENDANTS." 

THE JURY DECIDED THIS CENTRAL ISSUE AGAINST JOHNSON.  AND THE
ARGUMENT THAT THERE WAS NOT ENOUGH EVIDENCE ON WHICH A JURY WAS
ENTITLED TO MAKE SUCH A FINDING DOES NOT CALL FOR EXTENDED DISCUSSION. 
IN MAKING THIS ULTIMATE FINDING THE JURY MUST HAVE FOUND THAT THE
STRING OF GAMBLING HOUSES WITH WHICH JOHNSON WAS ASSOCIATED OVER A
PERIOD OF YEARS, WHILE OSTENSIBLY CONDUCTED AS SEPARATE ENTERPRISES BY
HIS CO-DEFENDANTS IN SEPARATE OWNERSHIP, WAS IN FACT A SINGLE UNIFIED
GAMBLING ENTERPRISE.  A VOLUMINOUS BODY OF LURID AND TEDIOUS TESTIMONY,
OFTEN THROUGH OBVIOUSLY UNWILLING WITNESSES, AMPLY JUSTIFIED THE JURY
IN FINDING THAT THESE PRETENDED SEPARATE HOUSES WERE UNDER A SINGLE
DOMINATION.  THE TESTIMONY ALSO AMPLY JUSTIFIED THE CONCLUSION THAT
JOHNSON OWNED A PROPRIETARY INTEREST IN THIS NETWORK OF GAMBLING HOUSES
AND WAS NOT MERELY A PATRON OR AN OCCASIONAL ACCOMMODATING DEALER WHEN
OTHER PATRONS DESIRED TO PLAY FOR STAKES BEYOND THE CONVENTIONAL
LIMIT.  HAVING BEEN JUSTIFIED IN FINDING THAT THE INDIVIDUAL DEFENDANTS
WERE SCREENS BEHIND WHICH JOHNSON OPERATED, THE JURY WAS ALSO JUSTIFIED
IN FINDING THAT THERE WERE WINNINGS FROM THESE HOUSES ON WHICH JOHNSON
ATTEMPTED TO EVADE INCOME TAX PAYMENTS.  EVEN SUCH RECORDS AS WERE KEPT
IN THESE HOUSES WERE DESTROYED.  BUT THAT THESE GAMBLING TRANSACTIONS
WERE ON AN ENORMOUS SCALE WAS OVERWHELMINGLY ESTABLISHED.  IT IS NOT TO
BE EXPECTED THAT THE ACTUAL FINANCIAL TRANSACTIONS OF SUCH A VAST
ILLICIT BUSINESS WOULD APPEAR BY DIRECT PROOF.  COMPARE UNITED STATES
V. WEXLER, 79 F.2D 526.  THE LONG DURATION OF THIS GAMBLING BUSINESS,
THE SUBSTANTIAL EVIDENCE OF THE OPERATION OF THE LAW OF PROBABILITY IN
FAVOR OF THE HOUSES, SUCH RECORDS AS THERE WERE PERTAINING TO THE
PRIVATE BANKING FACILITIES AND CURRENCY EXCHANGES WHICH WERE AT THE
SERVICE OF THESE HOUSES, MADE IT NOT A MATTER OF TENUOUS SPECULATION
BUT OF SOLID PROOF THAT THERE WERE WINNINGS OF A SUBSTANTIAL AMOUNT
WHICH JOHNSON DID NOT REPORT. 

THAT HE HAD LARGE, UNREPORTED INCOME WAS REINFORCED BY PROOF WHICH
WARRANTED THE JURY IN FINDING THAT CERTAINLY FOR THE YEARS 1937, 1938,
AND 1939, THE PRIVATE EXPENDITURES OF JOHNSON EXCEEDED HIS AVAILABLE
DECLARED RESOURCES.  IT IS ON THIS LATTER GROUND - NAMELY, THAT
PRESUMABLY JOHNSON'S EXPENDITURES JUSTIFIED THE FINDING THAT HE HAD
SOME UNREPORTED INCOME WHICH WAS PROPERLY ATTRIBUTABLE TO HIS EARNINGS
FROM THE GAMBLING HOUSES - THAT THE COURT BELOW THOUGHT THAT THE
EVIDENCE ON THREE OF THE SUBSTANTIVE COUNTS, THOSE FOR 1937, 1938, AND
1939, WAS SUFFICIENT TO GO TO THE JURY.  THAT IS ENOUGH TO SUSTAIN THE
JUDGMENT AGAINST JOHNSON, FOR THE SENTENCES ON ALL THE COUNTS WERE
IMPOSED TO RUN CONCURRENTLY. 

OF COURSE THE GOVERNMENT DID NOT HAVE TO PROVE THE EXACT AMOUNTS OF
UNREPORTED INCOME BY JOHNSON.  TO REQUIRE MORE OR MORE METICULOUS PROOF
THAN THIS RECORD DISCLOSES THAT THERE WERE UNREPORTED PROFITS FROM AN
ELABORATELY CONCEALED ILLEGAL BUSINESS, WOULD BE TANTAMOUNT TO HOLDING
THAT SKILFUL CONCEALMENT IS AN INVINCIBLE BARRIER TO PROOF.  "...  THE
PROBATIVE SUFFICIENCY OF THE TESTIMONY HAS THE SUPPORT OF THE DISTRICT
COURT (IN WHICH IS INCLUDED THE VERDICT OF THE JURY) AND OF THE CIRCUIT
COURT OF APPEALS.  IT WOULD TAKE SOMETHING MORE THAN INGENIOUS
CRITICISM TO BRING EVEN INTO QUESTION THAT CONCURRENCE OR TO DETRACT
FROM ITS ASSURING STRENGTH - SOMETHING MORE THAN THIS RECORD
PRESENTS."  DELANEY V. UNITED STATES, 263 U.S. 586, 589-90.  AND THIS
CONSIDERATION - THE CONCURRENCE OF BOTH COURTS BELOW IN THE SUFFICIENCY
OF THE JURY'S VERDICT - RENDERS UNNECESSARY FURTHER DISCUSSION OF THE
VERDICT AGAINST ALL THE DEFENDANTS, INCLUDING BROWN, ON THE CONSPIRACY
COUNT.  FOR WHILE BROWN WAS ALSO CONVICTED ON TWO SUBSTANTIVE COUNTS,
THE CONSPIRACY CHARGE IS SUFFICIENT TO ABSORB HIS SENTENCE. 

NOT MANY WORDS ARE NEEDED TO DISPOSE OF THE QUESTION OF THE
SUFFICIENCY OF THE EVIDENCE TO WARRANT SUBMISSION TO THE JURY OF THE
SUBSTANTIVE COUNTS AGAINST THE OTHER AIDERS AND ABETTORS, SOMMERS,
HARTIGAN, FLANAGAN, AND KELLY.  IN HOLDING THAT THE MOTION FOR DIRECTED
VERDICTS ON THE COUNTS CHARGING AIDING AND ABETTING SHOULD HAVE BEEN
GRANTED, THE COURT BELOW WAS LARGELY MISLED BY ITS ERRONEOUS
CONCEPTION, WITH WHICH WE HAVE ALREADY DEALT, OF THE CRIME OF AIDING
AND ABETTING IN THE CIRCUMSTANCES OF THIS CASE.  IN OTHER WORDS, AS A
MATTER OF EVIDENCE AS WELL AS A MATTER OF PLEADING, THE COURT WAS
DOMINATED BY THE NOTION THAT THE CO-DEFENDANTS DID NOT AID AND ABET
JOHNSON IF THEY ACTUALLY DID NOT SHARE IN THE MAKING OF HIS FALSE
RETURN ON EACH MARCH 15TH.  THE NUB OF THE MATTER IS THAT THEY AIDED
AND ABETTED IF THEY CONSCIOUSLY WERE PARTIES TO THE CONCEALMENT OF HIS
INTEREST IN THESE GAMBLING CLUBS OF WHICH THEY THEMSELVES PRETENDED TO
BE PROPRIETORS.  EVIDENCE OF CONDUCT, ACTS AND ADMISSIONS, AMPLY
WARRANTED THE TRIAL COURT TO SEND THE SUBSTANTIVE COUNTS AGAINST THE
AIDERS AND ABETTORS TO THE JURY. 

A RULING ON EVIDENCE, MUCH PRESSED UPON US, MUST FINALLY BE NOTICED. 
THE COURT BELOW HELD THAT THE ADMISSION OF THE TESTIMONY OF AN EXPERT
WITNESS REGARDING JOHNSON'S INCOME AND EXPENDITURES DURING THE DISPUTED
PERIOD INVADED THE JURY'S PROVINCE.  THE WITNESS GAVE COMPUTATIONS
BASED ON SUBSTANTIALLY THE ENTIRE EVIDENCE IN THE RECORD AS TO
JOHNSON'S INCOME.  THE CIRCUIT COURT OF APPEALS HELD THAT WHILE
UNDOUBTEDLY "A PROPER HYPOTHETICAL QUESTION COULD HAVE BEEN FRAMED AND
PROPOUNDED," IN FACT THE WITNESS WAS NOT GIVING ANSWERS ON THE BASIS OF
ANY ASSUMPTION OR HYPOTHESIS BUT AS TESTIMONY ON THE "CONTROVERTED
ISSUE" IN THE CASE.  123 F.2D AT 128.  WE DO NOT SO READ THE MEANING OF
THIS TESTIMONY.  NO ISSUE WAS WITHDRAWN FROM THE JURY.  THE CORRECTNESS
OR CREDIBILITY OF NO MATERIALS UNDERLYING THE EXPERT'S ANSWERS WAS EVEN
REMOTELY FORECLOSED BY THE EXPERT'S TESTIMONY OR WITHDRAWN FROM PROPER
INDEPENDENT DETERMINATION BY THE JURY.  THE JUDGE'S CHARGE WAS SO CLEAR
AND CORRECT THAT NO OBJECTION WAS MADE, THOUGH, OF COURSE, THERE WERE
EXCEPTIONS TO THE REFUSAL TO GRANT THE USUAL REQUESTS FOR CHARGES THAT
WERE EITHER REDUNDANT OR UNDULY PARTICULARIZED ITEMS OF TESTIMONY.  THE
WORTH OF OUR JURY SYSTEM IS CONSTANTLY AND PROPERLY EXTOLLED, BUT AN
ARGUMENT SUCH AS THAT WHICH WE ARE REJECTING TACITLY ASSUMES THAT
JURIES ARE TOO STUPID TO SEE THE DRIFT OF EVIDENCE.  THE JURY IN THIS
CASE COULD NOT POSSIBLY HAVE BEEN MISLED INTO THE NOTION THAT THEY MUST
ACCEPT THE CALCULATIONS OF THE GOVERNMENT EXPERT ANY MORE THAN THAT
THEY WERE BOUND BY THE CALCULATIONS MADE BY THE DEFENSE'S EXPERT BASED
ON THE DEFENDANTS' ASSUMPTIONS OF THE CASE.  SO LONG AS PROPER GUIDANCE
BY A TRIAL COURT LEAVES THE JURY FREE TO EXERCISE ITS UNTRAMMELED
JUDGMENT UPON THE WORTH AND WEIGHT OF TESTIMONY, AND NOTHING IS DONE TO
IMPAIR ITS FREEDOM TO BRING IN ITS VERDICT AND NOT SOMEONE ELSE'S WE
OUGHT NOT BE TOO FINICKY OR FEARFUL IN ALLOWING SOME DISCRETION TO
TRIAL JUDGES IN THE CONDUCT OF A TRIAL AND IN THE APPROPRIATE
SUBMISSION OF EVIDENCE WITHIN THE GENERAL FRAMEWORK OF FAMILIAR
EXCLUSIONARY RULES. 

THE DECISION BELOW MUST THEREFORE BE REVERSED AND THE CAUSE REMANDED
TO THE CIRCUIT COURT OF APPEALS FOR PROPER DISPOSITION IN ACCORDANCE
WITH THIS OPINION.  FN1  REVERSED. 

FN1  AFTER THE CASE CAME HERE, THE GOVERNMENT ASKED THAT THE PETITION
AS TO FLANAGAN, WHO HAD DIED, BE DISMISSED.  ACCORDINGLY, WE DISMISS
THE WRIT AS TO FLANAGAN AND LEAVE THE DISPOSITION OF THE FINE THAT WAS
IMPOSED ON HIM TO THE CIRCUIT COURT OF APPEALS.  SEE UNITED STATES V.
POMEROY, 152 F. 279, REVERSED IN 164 F. 324. 

MR. JUSTICE ROBERTS CONCURS IN THAT PORTION OF THE OPINION WHICH
DEALS WITH THE VALIDITY OF THE INDICTMENT.  HE IS OF OPINION THAT THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD BE AFFIRMED BECAUSE, IN
THE CASE OF JOHNSON, SUBSTANTIAL TRIAL ERRORS IN THE ADMISSION OF
EVIDENCE OPERATED TO HIS PREJUDICE, AND, IN THE CASE OF THE OTHER
DEFENDANTS, BECAUSE THERE WAS NO EVIDENCE WHATEVER TO PROVE THAT THEY
AIDED OR ABETTED JOHNSON IN ANY EFFORT TO COMMIT A FRAUD UPON THE
REVENUE AND NONE TO PROVE THAT THEY WERE PARTIES TO A CONSPIRACY WITH
HIM HAVING THE SAME OBJECT. 

MR. JUSTICE MURPHY, MR. JUSTICE JACKSON AND MR. JUSTICE RUTLEDGE TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :
























UNITED STATES V. BELT, 319 U.S. 521 


NO. 919.  DECIDED JUNE 7, 1943.  - 47 F.SUPP.  239, VACATED AND
REMANDED. 


THIS COURT FROM FINAL DECREES OF THE "SUPREME COURT OF THE DISTRICT OF
COLUMBIA," WAS REPEALED BY SEC. 238 OF THE JUDICIAL CODE, AS AMENDED BY
THE ACT OF FEBRUARY 13, 1925.  P. 522. 

UNITED STATES V. BELT ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

APPEAL FROM A JUDGMENT FOR THE DEFENDANTS IN A SUIT BROUGHT BY THE
UNITED STATES TO QUIET TITLE. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS SUIT IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WAS
BROUGHT BY THE UNITED STATES UNDER THE ACT OF APRIL 27, 1912, C. 96, 37
STAT. 93, TO ESTABLISH AND MAKE CLEAR ITS TITLE TO CERTAIN PARCELS OF
LAND ADJACENT TO THE ANACOSTIA RIVER.  THE DISTRICT COURT ENTERED
JUDGMENT FOR THE DEFENDANTS, AND THE UNITED STATES SEEKS A DIRECT
APPEAL TO THIS COURT UNDER SEC. 5 OF THAT ACT, WHICH PROVIDES:  "THAT
FROM THE FINAL DECREE OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA
...  AN APPEAL SHALL BE ALLOWED TO THE UNITED STATES, AND TO ANY OTHER
PARTY IN THE CAUSE COMPLAINING OF SUCH DECREE, TO THE SUPREME COURT OF
THE UNITED STATES.  ...  " 

13, 1925, 43 STAT. 936, 938, 28 U.S.C. SEC. 345, PERMITS DIRECT REVIEW
BY THIS COURT OF THE JUDGMENTS OF THE DISTRICT COURTS IN ONLY FIVE
SPECIFIED CATEGORIES, "AND NOT OTHERWISE."  THE CASE AT BAR IS WITHIN
NEITHER THOSE CATEGORIES NOR THAT RECOGNIZED BY EX PARTE KAWATO, 317
U.S. 69, AND EX PARTE PERU, 318 U.S. 578, VIZ., THE USE OF AUXILIARY
WRITS IN EXCEPTIONAL CASES IN AID OF THIS COURT'S APPELLATE
JURISDICTION.  THE GOVERNMENT SEEKS TO REMOVE THIS CASE FROM THE
RESTRICTIONS OF THE ACT OF 1925 ON THE GROUND THAT IT WAS NOT INTENDED
TO AFFECT SUCH SPECIAL INSTANCES OF DIRECT REVIEW AS THAT AFFORDED BY
THE ACT OF APRIL 27, 1912.  BUT WE CANNOT READ SUCH AN EXCEPTION INTO
THE 1925 ACT. 

NOR IS THE CONTRARY RESULT REQUIRED BECAUSE THE DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA WAS KNOWN AS THE "SUPREME COURT OF THE
DISTRICT OF COLUMBIA" WHEN THE ACT OF 1925 BECAME LAW.  AT THAT TIME
THE SUPREME COURT OF THE DISTRICT OF COLUMBIA POSSESSED THE
JURISDICTION OF A DISTRICT COURT OF THE UNITED STATES, SEE CODE OF LAW
FOR THE DISTRICT OF COLUMBIA (1924) SECS. 61, 62, 84, AND IT WAS
TREATED AS A "DISTRICT COURT" FOR PURPOSES OF THE ANTI-TRUST ACTS, SEE
FEDERAL TRADE COMM'N V. KLESNER, 274 U.S. 145, 153-54, AND SWIFT & CO.
V. UNITED STATES, 276 U.S. 311, 324-25.  CONSIDERATIONS NO LESS
CONTROLLING EXIST FOR TREATING IT AS A "DISTRICT COURT" WITHIN THE
SCOPE OF SEC. 238.  THE DOMINATING POLICY OF THE ACT OF 1925 WAS TO
RESTRICT DIRECT REVIEW TO THIS COURT AS A MATTER OF RIGHT, AND MORE
PARTICULARLY TO SHUT OFF SUCH DIRECT REVIEW OF THE JUDGMENTS OF FEDERAL
NISI PRIUS COURTS.  IT WOULD BE WHOLLY INCONSISTENT WITH THAT ACT TO
EXCLUDE THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FROM THE SCOPE
OF ITS PROVISIONS MERELY BECAUSE THAT COURT DID NOT BECOME A DISTRICT
COURT IN NAME UNTIL THE ACT OF JUNE 25, 1936, C. 804, 49 STAT. 1921. 
CF. H.R. REP. NO. 1075, 68TH CONG., 2D SESS., PP. 6-7. 

WE HOLD, THEREFORE, THAT THE PROVISIONS FOR DIRECT REVIEW TO THIS
COURT CONTAINED IN SEC. 5 OF THE ACT OF APRIL 27, 1912, WERE REPEALED
BY SEC. 13 OF THE JUDICIARY ACT OF 1925, BECAUSE THEY WERE
"INCONSISTENT THEREWITH."  THE JUDGMENT APPEALED FROM IS VACATED AND
THE CAUSE IS REMANDED TO THE DISTRICT COURT SO THAT IT MAY ENTER A NEW
JUDGMENT FROM WHICH THE UNITED STATES MAY, IF IT WISHES, PERFECT A
TIMELY APPEAL TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 
CF. PHILLIPS V. UNITED STATES, 312 U.S. 246, 254.  SO ORDERED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY DISSENT. 
..END :






















VIRGINIAN HOTEL CO. V. HELVERING, 319 U.S. 523 


NO. 766.  ARGUED MAY 12, 13, 1942.  - DECIDED JUNE 7, 1943.  - 132 F.2D
909, AFFIRMED. 


UNDER THE REVENUE ACT OF 1938, WHICH PROVIDES THAT THE BASIS ON WHICH
DEPRECIATION SHALL BE "ALLOWED" AS A DEDUCTION IN COMPUTING NET INCOME
IS THE COST OF THE PROPERTY WITH PROPER ADJUSTMENTS FOR DEPRECIATION TO
THE EXTENT "ALLOWED (BUT NOT LESS THAN THE AMOUNT ALLOWABLE)" UNDER
THAT AND PRIOR INCOME TAX LAWS, EXCESSIVE AMOUNTS CLAIMED BY THE
TAXPAYER FOR DEPRECIATION IN HIS RETURNS FOR EARLIER YEARS WERE
PROPERLY DEDUCTED FROM COST IN READJUSTING THE DEPRECIATION BASIS OF
THE PROPERTY IN QUESTION, ALTHOUGH IN THOSE YEARS NO TAX BENEFIT
RESULTED TO THE TAXPAYER FROM THE USE OF DEPRECIATION AS A DEDUCTION. 
P. 526. 

VIRGINIAN HOTEL CORPORATION V. HELVERING, COMMISSIONER OF INTERNAL
REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 318 U.S. 754, TO REVIEW THE REVERSAL OF A RULING OF THE
TAX COURT AGAINST A DEFICIENCY ASSESSMENT OF INCOME TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE FACTS OF THIS CASE ARE STIPULATED.  PETITIONER OPERATES AN
HOTEL.  FROM 1927 THROUGH 1937 PETITIONER (OR ITS PREDECESSOR) REPORTED
IN ITS INCOME TAX RETURNS DEPRECIATION ON CERTAIN OF ITS ASSETS ON A
STRAIGHT-LINE BASIS.  FN1  NO OBJECTION WAS TAKEN BY THE COMMISSIONER
OR HIS AGENTS TO THE AMOUNTS CLAIMED AND DEDUCTED.  IN 1938 PETITIONER
CLAIMED A DEDUCTION FOR DEPRECIATION AT THE SAME RATES.  THE
COMMISSIONER DETERMINED THAT THE USEFUL LIFE OF THE EQUIPMENT WAS
LONGER THAN PETITIONER CLAIMED AND THAT THEREFORE LOWER DEPRECIATION
RATES SHOULD BE USED.  FN2  ACCORDINGLY A DEFICIENCY WAS COMPUTED.  THE
DEPRECIATION THERETOFORE CLAIMED AS DEDUCTIONS WAS SUBTRACTED FROM THE
COST OF THE PROPERTY.  THE REMAINDER WAS TAKEN AS THE NEW BASIS FOR
COMPUTING DEPRECIATION.  A LESSER DEDUCTION FOR DEPRECIATION
ACCORDINGLY WAS ALLOWED.  FN3  THERE HAD BEEN A NET GAIN FOR SOME OF
THE YEARS IN QUESTION.  FOR THE YEARS 1931 TO 1936 INCLUSIVE THERE WAS
A NET LOSS AND, SAYS THE STIPULATION, "THE ENTIRE AMOUNT OF
DEPRECIATION DEDUCTED ON THE INCOME TAX RETURNS FOR THOSE YEARS DID NOT
SERVE TO REDUCE THE TAXABLE INCOME."  PETITIONER DOES NOT CHALLENGE THE
NEW RATES.  IT CONTENDS THAT THE AMOUNT OF DEPRECIATION CLAIMED FOR THE
YEARS 1931 TO 1936 INCLUSIVE IN EXCESS OF THE AMOUNT PROPERLY ALLOWABLE
SHOULD NOT BE SUBTRACTED FROM THE DEPRECIATION BASIS, SINCE IT DID NOT
SERVE TO REDUCE TAXABLE INCOME IN THOSE YEARS.  THE TAX COURT, IN
RELIANCE ON AN EARLIER RULING,  FN4  HELD FOR THE PETITIONER.  THE
CIRCUIT COURT OF APPEALS REVERSED.  132 F.2D 909.  THE CASE IS HERE ON
A PETITION FOR A WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF A
CONFLICT BETWEEN THE DECISION BELOW AND PITTSBURGH BREWING CO. V.
COMMISSIONER, 107 F.2D 155, DECIDED BY THE CIRCUIT COURT OF APPEALS FOR
THE THIRD CIRCUIT. 

A REASONABLE ALLOWANCE FOR DEPRECIATION IS ONE OF SEVERAL ITEMS WHICH
CONGRESS HAS DECLARED SHALL BE "ALLOWED" AS A DEDUCTION IN COMPUTING
NET INCOME.  INT. REV. CODE SEC. 23(1).  THE BASIS UPON WHICH
DEPRECIATION IS TO BE "ALLOWED" IS THE COST OF THE PROPERTY WITH PROPER
ADJUSTMENTS FOR DEPRECIATION "TO THE EXTENT ALLOWED (BUT NOT LESS THAN
THE AMOUNT ALLOWABLE) UNDER THIS ACT OR PRIOR INCOME TAX LAWS."  FN5
THAT PROVISION MAKES PLAIN THAT THE DEPRECIATION BASIS IS REDUCED BY
THE AMOUNT "ALLOWABLE" EACH YEAR WHETHER OR NOT IT IS CLAIMED. 
FIDELITY-PHILADELPHIA TRUST CO. V. COMMISSIONER, 47 F.2D 36.  MOREOVER
THE BASIS MUST BE REDUCED BY THAT AMOUNT EVEN THOUGH NO TAX BENEFIT
RESULTS FROM THE USE OF DEPRECIATION AS A DEDUCTION.  WEAR AND TEAR DO
NOT WAIT ON NET INCOME.  NOR CAN DEPRECIATION BE ACCUMULATED AND HELD
FOR USE IN THAT YEAR IN WHICH IT WILL BRING THE TAXPAYER THE MOST TAX
BENEFIT.  CONGRESS HAS ELECTED TO MAKE THE YEAR THE UNIT OF TAXATION. 
BURNET V. SANFORD & BROOKS CO., 282 U.S. 359.  THUS THE AMOUNT
"ALLOWABLE" MUST BE TAKEN EACH YEAR.  UNITED STATES V. LUDEY, 274 U.S.
295, 304. 

BUT IT IS SAID THAT "ALLOWED," UNLIKE "ALLOWABLE," CONNOTES THE
RECEIPT OF A TAX BENEFIT.  THE ARGUMENT IS THAT THOUGH DEPRECIATION IN
EXCESS OF AN "ALLOWABLE" AMOUNT IS CLAIMED BY THE TAXPAYER AND NOT
DISALLOWED BY THE COMMISSIONER, IT IS NEVERTHELESS NOT "ALLOWED" IF THE
DEDUCTIONS OTHER THAN DEPRECIATION ARE SUFFICIENT TO PRODUCE A LOSS FOR
THE YEAR IN QUESTION.  "ALLOWED" IN THIS SETTING PLAINLY HAS THE EFFECT
OF REQUIRING A REDUCTION OF THE DEPRECIATION BASIS BY AN AMOUNT WHICH
IS IN EXCESS OF DEPRECIATION PROPERLY DEDUCTIBLE.  WE DO NOT AGREE,
HOWEVER, WITH THE CONTENTION THAT SUCH A REDUCTION MUST BE MADE ONLY TO
THE EXTENT THAT THE DEDUCTION FOR DEPRECIATION HAS RESULTED IN A TAX
BENEFIT.  THE REQUIREMENT THAT THE BASIS SHOULD BE ADJUSTED FOR
DEPRECIATION "TO THE EXTENT ALLOWED (BUT NOT LESS THAN THE AMOUNT
ALLOWABLE)" FIRST APPEARED IN THE REVENUE ACT OF 1932.  47 STAT. 169,
201.  PRIOR TO THAT TIME THE ADJUSTMENT REQUIRED WAS FOR THE AMOUNT OF
DEPRECIATION "ALLOWABLE."  FN6  THE PURPOSE OF THE AMENDMENT IN 1932
WAS TO MAKE SURE THAT TAXPAYERS WHO HAD MADE EXCESSIVE DEDUCTIONS IN
ONE YEAR COULD NOT REDUCE THE DEPRECIATION BASIS BY THE LESSER AMOUNT
OF DEPRECIATION WHICH WAS "ALLOWABLE."  IF THEY COULD, THEN THE
GOVERNMENT MIGHT BE BARRED FROM COLLECTING ADDITIONAL TAXES WHICH WOULD
HAVE BEEN PAYABLE HAD THE LOWER RATE BEEN USED ORIGINALLY.  FN7  BUT WE
FIND NO SUGGESTION THAT "ALLOWED," AS DISTINGUISHED FROM "ALLOWABLE,"
DEPRECIATION IS CONFINED TO THOSE DEDUCTIONS WHICH RESULT IN TAX
BENEFITS.  "ALLOWED" CONNOTES A GRANT.  UNDER OUR FEDERAL TAX SYSTEM
THERE IS NO MACHINERY FOR FORMAL ALLOWANCES OF DEDUCTIONS FROM GROSS
INCOME.  DEDUCTIONS STAND IF THE COMMISSIONER TAKES NO STEPS TO
CHALLENGE THEM.  INCOME TAX RETURNS ENTAIL NUMEROUS DEDUCTIONS.  IF THE
DEDUCTIONS ARE NOT CHALLENGED, THEY CERTAINLY ARE "ALLOWED," SINCE TAX
LIABILITY IS THEN DETERMINED ON THE BASIS OF THE RETURNS.  APART FROM
CONTESTED CASES, THAT IS INDEED THE ONLY WAY IN WHICH DEDUCTIONS ARE
"ALLOWED."  AND WHEN ALL DEDUCTIONS ARE TREATED ALIKE BY THE TAXPAYER
AND BY THE COMMISSIONER, IT IS DIFFICULT TO SEE WHY SOME ITEMS MAY BE
SAID TO BE "ALLOWED" AND OTHERS NOT "ALLOWED."  FN8  IT WOULD TAKE
CLEAR AND COMPELLING INDICATIONS FOR US TO CONCLUDE THAT "ALLOWED" AS
USED IN SEC. 113(B)(1)(B) MEANS SOMETHING DIFFERENT THAN IT DOES IN THE
GENERAL SETTING OF THE REVENUE ACTS.  SEE HELVERING V. STATE-PLANTERS
BANK & TRUST CO., 130 F.2D 44. 

CONGRESS HAS PROVIDED FOR DEDUCTIONS OF ANNUAL AMOUNTS OF
DEPRECIATION WHICH, ALONG WITH SALVAGE VALUE, WILL REPLACE THE ORIGINAL
INVESTMENT OF THE PROPERTY AT THE TIME OF ITS RETIREMENT.  UNITED
STATES V. LUDEY, SUPRA; DETROIT EDISON CO. V. COMMISSIONER, ANTE, P.
98.  THE RULE WHICH HAS BEEN FASHIONED BY THE COURT BELOW DEPRIVES THE
TAXPAYER OF NO PORTION OF THAT DEDUCTION.  UNDER THAT RULE, TAXPAYERS
OFTEN WILL NOT RECOVER THEIR INVESTMENT TAX-FREE.  BUT CONGRESS HAS
MADE NO SUCH GUARANTEE.  NOR HAS CONGRESS INDICATED THAT A TAXPAYER WHO
HAS OBTAINED NO TAX ADVANTAGE FROM A DEPRECIATION DEDUCTION SHOULD BE
ALLOWED TO TAKE IT A SECOND TIME.  THE POLICY WHICH DOES NOT PERMIT THE
SECOND DEDUCTION IN CASE OF "ALLOWABLE" DEPRECIATION (BECKRIDGE CORP.
V. COMMISSIONER, 129 F.2D 318) IS EQUALLY COGENT AS RESPECTS
DEPRECIATION WHICH IS "ALLOWED."  AFFIRMED. 

FN1  15% ON CARPETS AND 10% ON ALL OTHER EQUIPMENT.  AT THOSE RATES
THE PROPERTIES WOULD HAVE BEEN FULLY DEPRECIATED IN 6 2/3 AND 10 YEARS
RESPECTIVELY. 

FN2  8% ON CARPETS AND 5% ON THE OTHER EQUIPMENT, THE ESTIMATED LIFE
BEING 12 1/2 YEARS AND 20 YEARS RESPECTIVELY. 

FN3  $1,295.47 FOR 1938 AS COMPARED WITH $4,341.97 WHICH WAS
CLAIMED.  THE DIFFERENCE BETWEEN THE DEPRECIATION CLAIMED IN THE LOSS
YEARS AND THE DEPRECIATION PROPERLY ALLOWABLE IN SUCH YEARS IS
$31,400.25. 

FN4  KENNEDY LAUNDRY CO. V. COMMISSIONER, 46 B.T.A. 70, WHICH
FOLLOWED PITTSBURGH BREWING CO. V. COMMISSIONER, 107 F.2D 155.  PRIOR
TO THE KENNEDY LAUNDRY CO. CASE AND PRIOR TO THE TIME WHEN PITTSBURGH
BREWING CO. V. COMMISSIONER, 37 B.T.A. 439, WAS OVERRULED, THE TAX
COURT TOOK A CONTRARY VIEW.  ITS DECISION IN THE KENNEDY LAUNDRY CO.
CASE WAS REVERSED BY THE CIRCUIT COURT OF APPEALS.  133 F.2D 660. 

FN5  SEC. 113(B)(1)(B), WHICH IS MADE APPLICABLE BY REASON OF SEC.
23(N), SEC. 114, AND SEC. 113(A). 

FN6  FOR A SUMMARY OF THE LEGISLATIVE HISTORY, SEE 40 COL. L. REV.
540. 

FN7  S. REP. NO. 665, 72D CONG., 1ST SESS., P. 29:  "THE TREASURY HAS
FREQUENTLY ENCOUNTERED CASES WHERE A TAXPAYER, WHO HAS TAKEN AND BEEN
ALLOWED DEPRECIATION DEDUCTIONS AT A CERTAIN RATE CONSISTENTLY OVER A
PERIOD OF YEARS, LATER FINDS IT TO HIS ADVANTAGE TO CLAIM THAT THE
ALLOWANCES SO MADE TO HIM WERE EXCESSIVE AND THAT THE AMOUNTS WHICH
WERE IN FACT 'ALLOWABLE' WERE MUCH LESS.  BY THIS TIME THE GOVERNMENT
MAY BE BARRED FROM COLLECTING THE ADDITIONAL TAXES WHICH WOULD BE DUE
FOR THE PRIOR YEARS UPON THE STRENGTH OF THE TAXPAYER'S PRESENT
CONTENTIONS.  THE TREASURY IS OBLIGED TO RELY VERY LARGELY UPON THE
GOOD FAITH AND JUDGMENT OF THE TAXPAYER IN THE DETERMINATION OF THE
ALLOWANCES FOR DEPRECIATION, SINCE THESE ARE PRIMARILY MATTERS OF
JUDGMENT AND ARE GOVERNED BY FACTS PARTICULARLY WITHIN THE KNOWLEDGE OF
THE TAXPAYER, AND THE TREASURY SHOULD NOT BE PENALIZED FOR HAVING
APPROVED THE TAXPAYER'S DEDUCTIONS.  WHILE THE COMMITTEE DOES NOT
REGARD THE EXISTING LAW AS COUNTENANCING ANY SUCH INEQUITABLE RESULTS,
IT BELIEVES THE NEW BILL SHOULD SPECIFICALLY PRECLUDE ANY SUCH
POSSIBILITY." 

FN8  AS WE HAVE NOTED, THE STIPULATION OF FACTS STATES THAT "THE
ENTIRE AMOUNT OF DEPRECIATION DEDUCTED ON THE INCOME TAX RETURNS" FOR
THE YEARS IN QUESTION "DID NOT SERVE TO REDUCE THE TAXABLE INCOME." 
THAT HAS BEEN TAKEN TO MEAN THAT NO PART OF THE DEPRECIATION DEDUCTION
RESULTED IN TAX BENEFITS.  WE DO NOT STOP TO INQUIRE HOW THAT COULD BE
TRUE WHEN THE DEPRECIATION DEDUCTED ON EACH RETURN FROM 1931 THROUGH
1936 WAS LARGER THAN THE NET LOSS FOR EACH OF THOSE YEARS.  IF THE
STIPULATION WERE NOT ACCEPTED, ONE OTHER PROBLEM WOULD BE PRESENTED. 
THAT IS THE THEORY THAT WHEN THERE IS A LOSS, DEPRECIATION MAY BE
SINGLED OUT AS NOT OFFSETTING GROSS INCOME, EVEN THOUGH IT IS ONLY ONE
OF SEVERAL DEDUCTIONS WHICH IS CLAIMED.  SEE KENNEDY LAUNDRY CO. V.
COMMISSIONER, 46 B.T.A. 70, 75, JUDGE DISNEY DISSENTING.  IN VIEW OF
THE STIPULATION, WE DO NOT REACH THAT QUESTION.  CF. BUTLER BROS. V.
MCCOLGAN, 315 U.S. 501, 508-509. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

IT IS TRUE THAT THE 1938 REVENUE ACT DOES NOT SPEAK OF A "TAX
BENEFIT" TO THE TAXPAYER.  SECTION 23 SPEAKS ONLY OF DEDUCTIONS FROM
GROSS INCOME WHICH "SHALL BE ALLOWED" IN COMPUTING NET INCOME, AMONG
WHICH IT INCLUDES, SEC. 23(1), "A REASONABLE ALLOWANCE FOR THE
EXHAUSTION, WEAR AND TEAR OF PROPERTY USED IN TRADE OR BUSINESS."  AND
BY SEC. 113(B)(1)(B) THE BASIS FOR DEPRECIATION OF PROPERTY IS ITS COST
ADJUSTED BY DEPRECIATION "TO THE EXTENT ALLOWED (BUT NOT LESS THAN THE
AMOUNT ALLOWABLE)."  IT IS EQUALLY TRUE AND OBVIOUS, AND OF SOME
IMPORTANCE TO THE CORRECT INTERPRETATION OF THE STATUTE, THAT ANY
DEPRECIATION IN EXCESS OF THE REASONABLE ALLOWANCE AUTHORIZED CAN,
UNDER THE STATUTE, RESULT IN NO TAX ADVANTAGE TO THE TAXPAYER AND IN NO
TAX PREJUDICE TO THE GOVERNMENT, UNLESS THE EXCESS HAS IN FACT BEEN
DEDUCTED FROM THE TAXPAYER'S GROSS INCOME. 

I CAN FIND NO WARRANT IN THE PURPOSE OR THE WORDS OF THE STATUTE, OR
IN THE PRINCIPLES OF ACCOUNTING, FOR OUR SAYING THAT THE TAXPAYER IS
REQUIRED TO REDUCE HIS DEPRECIATION BASE BY ANY AMOUNT IN EXCESS OF THE
DEPRECIATION "ALLOWABLE," WHICH EXCESS HE NEVER HAS IN FACT DEDUCTED
FROM GROSS INCOME.  WHATEVER ELSE THE STATUTORY REFERENCE TO
DEPRECIATION "ALLOWED" MAY MEAN, IT OBVIOUSLY CANNOT AND OUGHT NOT TO
BE CONSTRUED TO MEAN THAT A DEDUCTION FOR DEPRECIATION WHICH HAS NEVER
IN FACT BEEN SUBTRACTED FROM GROSS INCOME IS A DEDUCTION "ALLOWED." 

AND THERE IS NO REASON WHY SUCH SHOULD BE DEEMED TO BE ITS MEANING. 
THE ONLY FUNCTION OF DEPRECIATION IN THE INCOME TAX LAWS IS THE
ESTABLISHMENT OF AN AMOUNT, WHICH MAY BE DEDUCTED ANNUALLY FROM GROSS
INCOME, SUFFICIENT IN THE AGGREGATE TO RESTORE A WASTING CAPITAL ASSET
AT THE END OF ITS ESTIMATED LIFE.  THE SCHEME OF THE 1938 REVENUE ACT
IS TO PRESCRIBE THE PERMISSIBLE DEDUCTIONS FOR DEPRECIATION, AND TO
PRECLUDE THE TAXPAYER FROM GAINING ANY UNWARRANTED ADVANTAGE BY THE
AMOUNT AND DISTRIBUTION OF THOSE DEDUCTIONS.  THE ACT ACCOMPLISHES THE
LATTER BY COMPELLING THE TAXPAYER TO REDUCE HIS DEPRECIATION BASE BY
THE AMOUNT OF THE ALLOWABLE ANNUAL DEPRECIATION, WHETHER DEDUCTED FROM
GROSS INCOME OR NOT, AND BY SUCH FURTHER AMOUNT AS HE HAS IN FACT
DEDUCTED FROM GROSS INCOME.  NO REASON IS SUGGESTED WHY THE TAXPAYER'S
TAX FOR FUTURE YEARS SHOULD BE INCREASED BY REDUCING HIS DEPRECIATION
BASE BY ANY AMOUNT IN EXCESS OF THE DEPRECIATION "ALLOWABLE," UNLESS
THE EXCESS HAS AT SOME TIME AND IN SOME MANNER BEEN DEDUCTED FROM GROSS
INCOME.  SO INEQUITABLE A RESULT CANNOT RIGHTLY BE ACHIEVED BY SAYING
THAT A "DEDUCTION" FOR DEPRECIATION WHICH NEVER HAS BEEN DEDUCTED FROM
GROSS INCOME HAS NEVERTHELESS BEEN "ALLOWED." 

WHAT I HAVE SAID DOES NOT IMPLY THAT A TAXPAYER, WHO HAS DEDUCTED
EXCESSIVE DEPRECIATION FROM HIS GROSS INCOME IN ANY YEAR, IS NOT
SUBJECT TO A DEFICIENCY ASSESSMENT AS THE STATUTES AND REGULATIONS
PRESCRIBE; OR THAT EXCESSIVE DEDUCTIONS FOR DEPRECIATION TAKEN FROM
GROSS INCOME - OR ALLOWABLE DEPRECIATION, WHETHER SO DEDUCTED OR NOT -
MAY NOT PROPERLY BE USED TO REDUCE THE TAXPAYER'S DEPRECIATION BASE. 
THE STATUTE SO PROVIDES.  BUT I DO ASSERT THAT, UNDER THE SYSTEM OF
TAXATION WHICH WE HAVE ESTABLISHED, THE OVERSTATEMENT OF THE TAXPAYER'S
DEPRECIATION BASE ON WHICH THE GOVERNMENT INSISTS IS NOT TO BE
JUSTIFIED BECAUSE THE TAXPAYER MAY IN SOME OTHER YEAR HAVE DEDUCTED
FROM GROSS INCOME EXCESSIVE DEPRECIATION WHICH HAS ALREADY BEEN
SUBTRACTED FROM HIS DEPRECIATION BASE.  SEE BURNET V. SANFORD & BROOKS
CO., 282 U.S. 359, 365.  THE STATUTE NEITHER COMPELS NOR PERMITS SO
INCONGRUOUS A RESULT.  THE JUDGMENT SHOULD BE REVERSED.    MR. JUSTICE
ROBERTS, MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON JOIN IN THIS
DISSENT. 

MR. JUSTICE JACKSON, DISSENTING: 

THE FIRST AND FUNDAMENTAL STEP IN DETERMINING ACCRUED DEPRECIATION IS
TO ESTIMATE THE PROBABLE USEFUL LIFE OF THE PROPERTY TO BE
DEPRECIATED.  THIS DEPENDS UPON JUDGMENT AND IS NOT CAPABLE OF EXACT
DETERMINATION.  WHEN IT IS FOUND, AND AFTER MAKING ALLOWANCE FOR
PROBABLE SALVAGE VALUE AT THE TIME OF RETIREMENT, IT IS A MERE MATTER
OF MATHEMATICS TO COMPUTE UNDER THE STRAIGHT-LINE METHOD THE RATE OF
ANNUAL ACCRUAL. 

THIS RATE WHEN APPLIED TO THE COST OF THE DEPRECIABLE PROPERTY FIXES
TWO THINGS:  (1)  THE AMOUNT OF THE DEPRECIATION ACCRUAL TO DEDUCT FROM
GROSS, BEFORE DETERMINING NET, INCOME.  FOR THIS PURPOSE A HIGH RATE
WORKS IN FAVOR OF THE TAXPAYER FOR ANY GIVEN YEAR.  (2)  IT ALSO
DETERMINES THE AMOUNT BY WHICH THE COST BASE MUST BE REDUCED FOR
APPLICATION OF DEPRECIATION RATES THE FOLLOWING YEAR.  IN THIS ASPECT A
HIGH DEPRECIATION RATE WORKS IN FAVOR OF THE GOVERNMENT. 

THE VIRGINIAN HOTEL CORPORATION MISCONCEIVED, AS THE COMMISSIONER
THINKS, THE PROBABLE LIFE OF ITS DEPRECIABLE PROPERTY.  ATTRIBUTING TO
IT A LONGER LIFE SPAN, HE CORRECTED THAT JUDGMENT.  TO APPLY THAT
CORRECTION CONSISTENTLY WOULD LOWER THE RATE AND CONSEQUENT DEDUCTION
ON ACCOUNT OF DEPRECIATION AND CAUSE A SMALLER SUBTRACTION FROM THE
VALUATION BASE, LEAVING A LARGER BASE TO WHICH THE SMALLER RATE WOULD
BE APPLIED. 

THE COMMISSIONER PROPOSED TO CORRECT TAXPAYER'S RETURNS BY
CONSIDERING ONLY THE YEAR IN QUESTION.  HE ELIMINATED THE ERROR AS FAR
AS IT AFFECTED THE RATE AND THUS REDUCED THE DEPRECIATION ACCRUAL AND
INCREASED THE TAX.  BUT HE RETAINED THE BASE AS REDUCED BY THE
TAXPAYER'S ACCUMULATED ERRORS, REFUSING TO READJUST THE BASE
CONSISTENTLY WITH THE CORRECTED DEPRECIATION RATES. 

TO THE EXTENT THAT THE TAXPAYER HAD OBTAINED ADVANTAGE FROM THE USE
OF THE HIGHER DEPRECIATION RATE, I WOULD THINK IT QUITE JUSTIFIABLE TO
REFUSE TO MAKE A CORRECTION.  THE GOVERNMENT, HOWEVER, STIPULATES AS TO
THE YEARS IN QUESTION THAT "THE ENTIRE AMOUNT OF THE DEPRECIATION
DEDUCTED ON THE INCOME TAX RETURNS FOR THOSE YEARS DID NOT SERVE TO
REDUCE THE TAXABLE INCOME."  WE SHOULD NOT DISREGARD A DELIBERATELY
MADE STIPULATION, EVEN IF, ON OUR LIMITED KNOWLEDGE OF ITS BACKGROUND,
WE ARE IN DOUBT AS TO WHY IT WAS MADE.  THE QUESTION COMES SIMPLY TO
THIS:  WHETHER THE COMMISSIONER, UPON DETERMINING WHETHER TAXPAYER HAS
IN GOOD FAITH ERRED, MAY USE A CORRECTION IN SO FAR AS IT HELPS THE
GOVERNMENT AND ADHERE TO THE MISTAKE IN SO FAR AS IT INJURES THE
TAXPAYER.  I THINK THAT NO STRAINING SHOULD BE DONE TO FIND A
CONSTRUCTION OF THE STATUTES THAT WILL SUPPORT THE RESULT. 

I AM THE LESS INCLINED TO LAY DOWN A RULE THAT WILL PERMIT THE
GOVERNMENT TO MAKE INCONSISTENT CORRECTIONS IN THE MATTER OF
DEPRECIATION BECAUSE CONSISTENCY IN THE MATTER OF DEPRECIATION IS ONE
OF THE FEW IMPORTANT PRINCIPLES OF ITS APPLICATION.  THERE HAS BEEN NO
MORE FUTILE TAX LITIGATION THAN THAT OVER DEPRECIATION RATES.  IN AN
ERA OF RISING TAXES THE FASTER A TAXPAYER DEPLETED HIS BASE FOR
DEPRECIATION THE MORE THE GOVERNMENT REALIZED IN REVENUE FROM HIM.  IF
THIS PRESENT TAXPAYER HAD BEEN PERMITTED TO CONTINUE ITS HIGH
DEPRECIATION RATES, IT WOULD HAVE COME INTO THE PRESENT ERA OF
EXCEEDINGLY HIGH TAXES WITH ITS DEPRECIATION BASE CORRESPONDINGLY
EXHAUSTED.  WHAT IS IMPORTANT FOR THE PROTECTION OF THE REVENUES IS
THAT ACCRUAL FOR DEPRECIATION BE APPLIED ONLY TO PROPERTY THAT IS
PROPERLY DEPRECIABLE, THAT IT BE STOPPED WHEN THE PROPERTY IS FULLY
DEPRECIATED, AND THAT THE RATE BE CONSISTENTLY APPLIED SO THAT THE
TAXPAYER CANNOT CHOOSE TO TAKE ONLY A LITTLE DEPRECIATION WHEN HE HAS A
LITTLE INCOME AND A LOT OF DEPRECIATION WHEN HE HAS A LARGE INCOME.  IF
THESE CONDITIONS ARE OBSERVED, LITIGATION ABOUT THE RATE SERVES CHIEFLY
TO VINDICATE THEORIES RATHER THAN TO PROTECT THE REVENUES. 

IF THE GOVERNMENT DESIRES TO MAKE REVISIONS OF THEORETICAL RATES,
THERE IS NO REASON WHY IT SHOULD NOT OBSERVE THE RULE OF CONSISTENCY
THAT IS ONE OF THE CARDINAL RULES TO IMPOSE ON THE TAXPAYER.  HENCE, I
JOIN IN THE DISSENTING OPINION OF THE CHIEF JUSTICE. 
..END :



VIRGINIA ELECTRIC CO. V. BOARD, 319 U.S. 533 


NO. 709.  ARGUED MAY 6, 1943.  - DECIDED JUNE 7, 1943.  - 132 F.2D 390,
AFFIRMED. 


1.  IN REQUIRING THE DISESTABLISHMENT OF A COMPANY UNION, THE NATIONAL
LABOR RELATIONS BOARD WAS AUTHORIZED, BY SEC. 10(C) OF THE NATIONAL
LABOR RELATIONS ACT, UPON THE FACTS IT FOUND IN THIS CASE, SUPPORTED BY
EVIDENCE, TO ORDER THAT THE EMPLOYER REIMBURSE ITS EMPLOYEES IN FULL
FOR AMOUNTS WHICH HAD BEEN DEDUCTED FROM THEIR WAGES AND PAID TO THAT
UNION AS DUES.  P. 539. 

2.  THE BOARD'S DETERMINATION THAT REIMBURSEMENT IN FULL OF THE
CHECKED-OFF DUES IS NECESSARY TO "EFFECTUATE THE POLICIES OF THE ACT"
SHOULD STAND, IN THE ABSENCE OF ANY SHOWING THAT THE ORDER WAS A PATENT
ATTEMPT TO ACHIEVE ENDS OTHER THAN CAN FAIRLY BE SAID TO EFFECTUATE THE
POLICIES OF THE ACT.  P. 540. 

3.  THE ORDER IS NOT TO BE REGARDED AS ADJUDICATING A RIGHT TO
DAMAGES OR AS IMPOSING A PENALTY.  P. 543. 

VIRGINIA ELECTRIC & POWER CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 318 U.S. 752, TO REVIEW AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD.  THE CASE WAS HERE BEFORE AND WAS REMANDED FOR A
REDETERMINATION, 314 U.S. 469. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

AFTER THE REMAND OF THIS CASE IN 314 U.S. 469, THE BOARD RECONSIDERED
IT UPON THE ORIGINAL RECORD, MADE NEW FINDINGS OF FACT, AND CONCLUDED
THAT THE COMPANY HAD VIOLATED SEC. 8(1), (2) AND (3) OF THE ACT.  29
U.S.C. SEC. 158.  A NEW ORDER WAS ENTERED REQUIRING THE COMPANY TO
CEASE AND DESIST FROM THE UNFAIR LABOR PRACTICES FOUND AND FROM GIVING
EFFECT TO ITS CONTRACT WITH THE INDEPENDENT ORGANIZATION OF EMPLOYEES. 
THE ORDER ALSO DIRECTED THE COMPANY TO WITHDRAW RECOGNITION FROM AND
DISESTABLISH THE I.O.E. AS A REPRESENTATIVE OF ITS EMPLOYEES, TO
REINSTATE WITH BACK PAY TWO OF THREE EMPLOYEES FOUND TO HAVE BEEN
DISCRIMINATORILY DISCHARGED, TO REIMBURSE ITS EMPLOYEES IN THE AMOUNT
OF DUES AND ASSESSMENTS DEDUCTED FROM THEIR WAGES BY THE COMPANY AND
PAID TO THE I.O.E., AND TO POST APPROPRIATE NOTICES.  44 N.L.R.B. 404. 
THE COURT BELOW, ONE JUDGE DISSENTING IN PART, UPHELD THE ORDER IN
FULL.  132 F.2D 390.  THE I.O.E. THEN APPARENTLY DECIDED TO DISSOLVE,
AND THE COMPANY WITHDREW RECOGNITION FROM AND DISESTABLISHED IT.
BECAUSE OF AN APPARENT CONFLICT OF DECISIONS, WE GRANTED THE COMPANY'S
PETITION FOR CERTIORARI WHICH CHALLENGED ONLY THE AUTHORITY OF THE
BOARD TO REQUIRE REIMBURSEMENT OF THE CHECKED-OFF DUES, A POINT NOT
REACHED WHEN THE CASE WAS HERE BEFORE.  FN1 

THE NEW FINDINGS ARE MUCH MORE ELABORATE THAN THOSE ORIGINALLY BEFORE
US IN 314 U.S. 469, AND IT WOULD SERVE NO USEFUL PURPOSE TO DISCUSS
THEM MINUTELY.  THE FOLLOWING OUTLINE IS SUFFICIENT FOR AN
UNDERSTANDING OF THE ISSUES RAISED: THE FINDINGS SKETCH IN CONSIDERABLE
DETAIL THE ANTIUNION BACKGROUND OF THE COMPANY AND THE ACTIVITIES OF
BISHOP, THE SUPERINTENDENT OF THE COMPANY'S NORFOLK TRANSPORTATION
DEPARTMENT, INCLUDING HIS SUGGESTIONS TO EMPLOYEES RUETT AND ELLIOTT
THAT THEY FORM UNAFFILIATED ORGANIZATIONS.  THE GROWTH OF THE I.O.E. IS
TRACED FROM THE SPEECHES AND MEETINGS OF MAY 24, 1937, WHICH WERE HELD
AFTER REQUESTS FOR COLLECTIVE BARGAINING WERE RECEIVED BY THE COMPANY
FROM SEVERAL SMALL GROUPS OF EMPLOYEES AS A RESULT OF THE BULLETIN OF
APRIL 26, AND WHICH WERE ATTENDED BY REPRESENTATIVES SELECTED BY THE
EMPLOYEES AT THE SUGGESTION OF THE COMPANY.  THE TRACING CONTINUES WITH
A DISCUSSION OF THE REACTIONS OF THOSE REPRESENTATIVES AFTER THE
COMPANY OFFICIALS LEFT THE MEETINGS AND THEIR SUBSEQUENT REPORTS
DELIVERED TO THE EMPLOYEES ON COMPANY PROPERTY AND IN SOME INSTANCES ON
COMPANY TIME WITH THE HELP OF SUPERVISORY EMPLOYEES.  EMPHASIS IS
PLACED UPON THE FREQUENT MEETINGS ON COMPANY PROPERTY HELD BY THE
RESULTANT NORFOLK AND RICHMOND STEERING COMMITTEES DURING THE FIRST
PART OF JUNE.  THE CONSTITUTION AND BY-LAWS OF THE I.O.E. WERE ADOPTED
ON JUNE 15.  THE MEMBERSHIP CAMPAIGN BEGAN JUNE 17, AND WITHIN TWO
WEEKS THE I.O.E. HAD A MAJORITY OF THE COMPANY'S 3,000 WIDELY SCATTERED
EMPLOYEES.  THE BOARD CONTRASTED THIS WITH ITS FINDINGS THAT DURING THE
CRITICAL FORMATIVE PERIOD OF THE I.O.E. THE COMPANY DISCHARGED ONE
MANN, AN OUTSPOKEN FOE OF AN "INSIDE" UNION, THAT EDWARDS, A
SUPERVISOR, KEPT C.I.O. MEETINGS UNDER SURVEILLANCE AND WARNED SOME
EMPLOYEES AGAINST "MESSING WITH THE C.I.O.," AND THAT THE COMPANY
DENIED THE USE OF ITS PREMISES TO REPRESENTATIVES OF NATIONAL LABOR
ORGANIZATIONS, AND THEN DREW THE CONCLUSION THAT THE QUICK SUCCESS OF
THE I.O.E. MEMBERSHIP CAMPAIGN "MUST BE ATTRIBUTED IN LARGE PART TO THE
RESPONDENT'S (COMPANY'S) SPONSORSHIP OF AND ASSISTANCE TO THE I.O.E.
AND ITS PERSISTENT AND WELL-KNOWN OPPOSITION TO NATIONAL UNIONS." 

CONTINUING, THE FINDINGS RELATE THAT THE REPRESENTATIVES OF THE
I.O.E. IN CONVENTION ON JULY 17 AND 18, DREW UP A PROPOSED CONTRACT,
EMBODYING DEMANDS FOR A CLOSED-SHOP, CHECK-OFF OF I.O.E. DUES AND
SUBSTANTIAL WAGE INCREASES, WHICH WAS SENT TO THE COMPANY WITH A
REQUEST FOR A BARGAINING CONFERENCE.  THE CONFERENCE BEGAN ON JULY 30,
AND THE COMPANY QUICKLY GAVE RECOGNITION AND OFFERED NO OBJECTION TO
THE CHECK-OFF PROVISION, WITH THE ADDITION OF A PROVISO THAT THE
EMPLOYEES MIGHT REVOKE THEIR AUTHORIZATIONS AT ANY TIME.  THE BY-LAWS
OF THE I.O.E., HOWEVER, REQUIRED ALL MEMBERS TO AUTHORIZE THE DEDUCTION
OF DUES, AND THE MEMBERSHIP APPLICATIONS CONTAINED SUCH
AUTHORIZATIONS.  THE CLOSED-SHOP PROVISION WAS DISCUSSED FOR TWO HOURS
AND THEN POSTPONED FOR OTHER MATTERS UNTIL THE FOLLOWING DAY, WHEN IT
WAS AGAIN TAKEN UP FOR TWO HOURS AND THEN AGREED TO WITH THE ADDITION,
AT THE INSTANCE OF THE COMPANY, OF A PROVISION THAT NOTHING IN THE
CONTRACT SHOULD PREVENT EMPLOYEES FROM JOINING OR REMAINING MEMBERS OF
ANY OTHER LABOR ORGANIZATION.  WAGE INCREASES, COSTING THE COMPANY
$600,000 ANNUALLY, WERE GRANTED, AND, AS PRESIDENT HOLTZCLAW HAD
PROMISED AT THE MAY 24 MEETING IN RICHMOND, THEY WERE MADE RETROACTIVE
TO JUNE 1.  THE CONTRACT WAS FORMALLY EXECUTED AUGUST 5, AND ON AUGUST
20 THE COMPANY PAID $3,784.50 TO THE I.O.E. AS DUES UNDER THE CHECK-OFF
PROVISION, ALTHOUGH IT HAD NOT YET DEDUCTED THAT ENTIRE AMOUNT FROM THE
WAGES OF ITS EMPLOYEES.  THE BOARD CONSIDERED "THE PROMPTNESS WITH
WHICH THE RESPONDENT (COMPANY) AGREED TO GRANT THE I.O.E. A CHECK-OFF
OF DUES AND A CLOSED SHOP  ...  AFTER A COMPARATIVELY FEW HOURS
DISCUSSION," AND THEN FOUND THAT THE COMPANY "AGREED TO THE CLOSED SHOP
AND THE CHECK-OFF OF I.O.E. DUES IN ORDER TO ENTRENCH THE I.O.E. AMONG
THE EMPLOYEES AND TO INSURE ITS FINANCIAL STABILITY." 

ON THE BASIS OF THESE FINDINGS THE BOARD CONCLUDED THAT: 

"THE RESPONDENT HAS ENGAGED IN A COURSE OF CONDUCT CALCULATED TO
RESTRAIN AND DISCOURAGE ITS EMPLOYEES FROM SELF-ORGANIZATION IN
NATIONALLY AFFILIATED UNIONS AND TO DIVERT AND CANALIZE THEIR
ORGANIZATIONAL EFFORTS TO THE ESTABLISHMENT OF A COMPANY-WIDE
UNAFFILIATED LABOR ORGANIZATION; THAT IN ITS TOTALITY, THE RESPONDENT'S
CONDUCT HAS BEEN COERCIVE OF ITS EMPLOYEES IN THE EXERCISE OF THEIR
RIGHT TO SELF-ORGANIZATION, WITH THE RESULT THAT WHEN THEY FORMED THE
I.O.E. THEY WERE NOT AS FREE AS THE STATUTE REQUIRES; THAT THE I.O.E.
IS THE FRUIT OF THE RESPONDENT'S ILLEGAL INTERFERENCE WITH, AND
RESTRAINT AND COERCION OF ITS EMPLOYEES; AND THAT THE RESPONDENT HAS
DOMINATED THE FORMATION AND ADMINISTRATION OF THE I.O.E., AND HAS
CONTRIBUTED FINANCIAL AND OTHER SUPPORT TO IT." 

AND AGAIN THAT: 

"THE I.O.E. WAS NOT THE RESULT OF THE EMPLOYEES' FREE CHOICE; THAT IT
WAS INITIATED IN RESPONSE TO THE URGINGS OF THE RESPONDENT AT THE MAY
24 MEETINGS TO SET UP THEIR 'OWN' ORGANIZATION; THAT THE RESPONDENT'S
SUPPORT OF THE ORGANIZATION DURING THE CRITICAL FORMATIVE PERIOD AND
ITS CONSISTENT OPPOSITION TO NATIONALLY AFFILIATED ORGANIZATIONS ARE
LARGELY RESPONSIBLE FOR THE ADHERENCE OF THE EMPLOYEES TO THE
ORGANIZATION; AND THAT THE CONTRACT WITH THE I.O.E. GRANTING A CLOSED
SHOP AND THE CHECK-OFF OF THE I.O.E. DUES MARKED THE CLIMAX OF THE
RESPONDENT'S EFFORTS TO ERECT AN UNAFFILIATED ORGANIZATION AS A BULWARK
AGAINST NATIONALLY AFFILIATED ORGANIZATIONS.  WE FIND THAT THE
RESPONDENT HAS DOMINATED AND INTERFERED WITH THE FORMATION AND
ADMINISTRATION OF THE I.O.E. AND HAS CONTRIBUTED SUPPORT TO IT,  ...
" 

IN DISCUSSING THE APPROPRIATE REMEDY FOR THE UNFAIR LABOR PRACTICES
FOUND, THE BOARD STATED THAT THE COMPANY'S DOMINATION AND INTERFERENCE
IN THE FORMATION AND ADMINISTRATION OF THE I.O.E. CONSTITUTED "A
CONTINUING OBSTACLE TO THE EXERCISE BY THE EMPLOYEES OF THE RIGHTS
GUARANTEED THEM BY THE ACT" AND THEREFORE THE DISESTABLISHMENT OF THE
I.O.E. WAS NECESSARY.  IN ADDITION THE BOARD WAS OF OPINION THAT "UNDER
THE CIRCUMSTANCES OF THIS CASE" THE COMPANY SHOULD BE ORDERED TO
REIMBURSE ITS EMPLOYEES FOR THE AMOUNTS CHECKED-OFF THEIR WAGES AND
PAID TO THE I.O.E.  FN2 

THE COMPANY NO LONGER ATTACKS THE CONCLUSION THAT THE I.O.E. WAS
DOMINATED BY IT, BUT IT DOES CONTEST THE VALIDITY OF THE FINDINGS
RELATING TO DOMINATION IN SO FAR AS MAY BE PERTINENT TO THE
REIMBURSEMENT ORDER, AND IT CHALLENGES THE POWER OF THE BOARD TO MAKE
THAT ORDER UNDER THE CIRCUMSTANCES OF THE CASE. 

UNDER THE APPLICABLE PRINCIPLES GOVERNING THE SCOPE OF OUR REVIEW OF
BOARD ORDERS, WE THINK THE BOARD'S FINDINGS AND CONCLUSIONS REGARDING
THE COMPANY'S DOMINATION OF AND INTERFERENCE WITH THE I.O.E. ARE
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND THEREFORE CONCLUSIVE.  SEE LABOR
BOARD V. LINK-BELT CO., 311 U.S. 584; I.A. OF M. V. LABOR BOARD, 311
U.S. 72; LABOR BOARD V. AUTOMOTIVE MAINTENANCE MACHINERY CO., 315 U.S.
282; LABOR BOARD V. NEVADA COPPER CO., 316 U.S. 105; LABOR BOARD V.
SOUTHERN BELL TEL. CO., ANTE, P. 50.  THESE FINDINGS AND CONCLUSIONS
ARE NOT SUBJECT TO THE INFIRMITIES OF THE ORIGINAL ONES WHICH PROMPTED
OUR DECISION IN 314 U.S. 469.  WHILE THE BULLETIN OF APRIL 26 AND THE
SPEECHES OF MAY 24 ARE STILL STRESSED, THEY ARE CONSIDERED NOT IN
ISOLATION BUT AS PART OF A PATTERN OF EVENTS ADDING UP TO THE
CONCLUSION OF DOMINATION AND INTERFERENCE.  WE ARE ALSO OF OPINION THAT
THE BOARD HAD POWER TO ENTER THE CHECK-OFF REIMBURSEMENT ORDER IN THE
CIRCUMSTANCES OF THIS CASE. 

PERSONS FOUND ENGAGED OR ENGAGING IN UNFAIR LABOR PRACTICES "TO TAKE
SUCH AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR
WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES OF THIS ACT."  THE
DECLARED POLICY OF THE ACT IN SEC. 1 IS TO PREVENT, BY ENCOURAGING AND
PROTECTING COLLECTIVE BARGAINING AND FULL FREEDOM OF ASSOCIATION FOR
WORKERS, THE COSTLY DISLOCATION AND INTERRUPTION OF THE FLOW OF
COMMERCE CAUSED BY UNNECESSARY INDUSTRIAL STRIFE AND UNREST.  SEE LABOR
BOARD V. JONES & LAUGHLIN, 301 U.S. 1.  WITHIN THIS LIMIT THE BOARD HAS
WIDE DISCRETION IN ORDERING AFFIRMATIVE ACTION; ITS POWER IS NOT
LIMITED TO THE ILLUSTRATIVE EXAMPLE OF ONE TYPE OF PERMISSIBLE
AFFIRMATIVE ORDER, NAMELY, REINSTATEMENT WITH OR WITHOUT BACK PAY. 
PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 187-89.  THE
PARTICULAR MEANS BY WHICH THE EFFECTS OF UNFAIR LABOR PRACTICES ARE TO
BE EXPUNGED ARE MATTERS "FOR THE BOARD NOT THE COURTS TO DETERMINE." 
I.A. OF M. V. LABOR BOARD, SUPRA, AT P. 82; LABOR BOARD V. LINK-BELT
CO., SUPRA, AT P. 600.  HERE THE BOARD, IN THE EXERCISE OF ITS INFORMED
DISCRETION, HAS EXPRESSLY DETERMINED THAT REIMBURSEMENT IN FULL OF THE
CHECKED-OFF DUES IS NECESSARY TO EFFECTUATE THE POLICIES OF THE ACT. 
WE GIVE CONSIDERABLE WEIGHT TO THAT ADMINISTRATIVE DETERMINATION.  IT
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.  THERE IS NO SUCH SHOWING HERE. 

THE BOARD FOUND THAT THE COMPANY WAS RESPONSIBLE FOR THE CREATION OF
THE I.O.E. BY PROVIDING ITS INITIAL IMPETUS AND DIRECTION AND BY
CONTRIBUTING SUPPORT DURING ITS CRITICAL FORMATIVE PERIOD.  IT FURTHER
FOUND THAT THE COMPANY QUICKLY AGREED TO GIVE ITS CREATURE CLOSED-SHOP
AND CHECK-OFF PRIVILEGES "IN ORDER TO ENTRENCH THE I.O.E. AMONG THE
EMPLOYEES AND TO INSURE ITS FINANCIAL STABILITY."  THE RESULT WAS THAT
THE EMPLOYEES, UNDER THE I.O.E. BY-LAWS, HAD TO AUTHORIZE WAGE
DEDUCTIONS FOR DUES TO REMAIN MEMBERS OF THE I.O.E., AND THEY HAD TO
REMAIN MEMBERS TO RETAIN THEIR JOBS.  FN4  THUS, AS A PRICE OF
EMPLOYMENT THEY WERE REQUIRED BY THE COMPANY TO SUPPORT AN ILLEGAL
ORGANIZATION WHICH FORECLOSED THEIR RIGHTS TO FREEDOM OF ORGANIZATION
AND COLLECTIVE BARGAINING.  TO HOLD THAT THE BOARD IS WITHOUT POWER
HERE TO ORDER REIMBURSEMENT OF THE AMOUNTS SO EXACTED IS TO HOLD THAT
AN EMPLOYER IS FREE TO FASTEN FIRMLY UPON HIS EMPLOYEES THE COST OF
MAINTAINING AN ORGANIZATION BY WHICH HE EFFECTIVELY DEFEATS THE FREE
EXERCISE OF THEIR RIGHTS TO SELF-ORGANIZATION AND COLLECTIVE
BARGAINING.  THAT THIS MAY PERVERT THE PURPOSE OF THE ACT IS CLEAR.  IT
IS EQUALLY CLEAR THAT THE UNDOING OF THE EFFECTS OF SUCH A PRACTICE
MAY, IN THE JUDGMENT OF THE BOARD, REMOVE A VERY REAL BARRIER TO THE
EFFECTUATION OF THE POLICIES OF THE ACT, THE PROTECTION OF COMMERCE
THROUGH THE ELIMINATION OF INDUSTRIAL CONFLICT BY GUARANTEEING FULL
FREEDOM OF ASSOCIATION AND GENUINE COLLECTIVE BARGAINING TO EMPLOYEES. 
AN ORDER SUCH AS THIS, WHICH DEPRIVES AN EMPLOYER OF ADVANTAGES
ACCRUING FROM A PARTICULAR METHOD OF SUBVERTING THE ACT, IS A
PERMISSIBLE METHOD OF EFFECTUATING THE STATUTORY POLICY. 

IT IS ARGUED THAT DISESTABLISHMENT OF THE I.O.E. SUFFICIENTLY
EFFECTUATES THE POLICIES OF THE ACT BY RESTORING TO THE EMPLOYEES OF
THE COMPANY THEIR FREEDOM OF ASSOCIATION.  BUT THE BOARD NEED NOT BE
SATISFIED WITH THE REMEDY ALONE.  IT HAS HERE DETERMINED THAT, TO
EFFECTUATE FULLY THE POLICIES OF THE ACT, IT IS NECESSARY TO EXPUNGE
THE EFFECTS OF THE UNFAIR LABOR PRACTICES BY ORDERING THE REIMBURSEMENT
OF CHECKED-OFF DUES.  SUCH A DETERMINATION SEEMS MANIFESTLY
REASONABLE.  IT RETURNS TO THE EMPLOYEES WHAT HAS BEEN TAKEN FROM THEM
TO SUPPORT AN ORGANIZATION NOT OF THEIR FREE CHOICE AND PLACES THE
BURDEN UPON THE COMPANY WHOSE UNFAIR LABOR PRACTICES BROUGHT ABOUT THE
SITUATION.  THE DEDUCTION OF DUES FROM WAGES UNDER THE CIRCUMSTANCES OF
THIS CASE IS NOT UNLIKE A LOSS OCCASIONED BY A DISCRIMINATORY
DISCHARGE, AND AN ORDER FOR THE RETURN OF THOSE CHECKED-OFF DUES
PROMOTES THE POLICIES OF THE ACT IN SUBSTANTIALLY THE SAME MANNER AS
WOULD A BACK PAY AWARD.  BY RETURNING THEIR MONEY TO THE EMPLOYEES, THE
ORDER SEVERS POSSIBLE ECONOMIC TIES WHICH THEY MAY HAVE WITH THE
EMPLOYER-DOMINATED I.O.E. AND TO THIS EXTENT AIDS IN COMPLETELY
DISESTABLISHING THAT ORGANIZATION AND RESTORING TO THE EMPLOYEES THAT
TRULY UNFETTERED FREEDOM OF CHOICE WHICH THE ACT DEMANDS.  IF EMPLOYEES
HAVE SOME ASSURANCE THAT AN EMPLOYER MAY NOT WITH IMPUNITY IMPOSE UPON
THEM THE COST OF MAINTAINING AN ORGANIZATION WHICH HE HAS DOMINATED,
ANY MORE THAN HE CAN MAKE THEM BEAR THE BURDEN OF A DISCRIMINATORY
DISCHARGE, THEY MAY BE MORE CONFIDENT IN THE EXERCISE OF THEIR
STATUTORY RIGHTS. 

THE COMPANY CONTENDS THAT THE BOARD DID NOT FIND THAT IT CONTINUED TO
INTERFERE WITH THE I.O.E. AFTER ITS ORGANIZATION, EXCEPT WITH REGARD TO
THE CLOSED-SHOP AND CHECK-OFF CLAUSES OF THE CONTRACT, AND THIS FINDING
IS ATTACKED AS WITHOUT FOUNDATION IN EVIDENCE.  IT IS SAID THAT THE
DEMAND FOR A CLOSED-SHOP AND CHECK-OFF ORIGINATED WITH THE EMPLOYEES
WHO WERE FREE TO ABANDON THOSE PROVISIONS AT ANY TIME BY CHANGING THEIR
BY-LAWS OR THE CONTRACT, AND THAT THEREFORE THE CONTINUATION OF THOSE
REQUIREMENTS WAS THE VOLUNTARY ACTION OF THE EMPLOYEES FOR WHICH THE
COMPANY IS NOT RESPONSIBLE.  FINALLY IT IS URGED THAT THE COMPANY
SHOULD NOT BE COMPELLED TO REIMBURSE THESE VOLUNTARY PAYMENTS BECAUSE
THE EMPLOYEES RECEIVED BENEFITS, INCLUDING SUBSTANTIAL WAGE INCREASES,
FROM THE I.O.E. 

THE SHORT ANSWER IS THAT THE BOARD HAS RESOLVED ALL THESE CONTENTIONS
AGAINST THE COMPANY, AND WE CANNOT SAY IT EXCEEDED ITS COMPETENCE IN SO
DOING.  IT MADE NO FINDING OF SPECIFIC MANAGEMENT INTERFERENCE IN THE
I.O.E. AFTER THE EXECUTION OF THE CONTRACT, BUT IT DID CONCLUDE THAT
THE I.O.E.'S EXISTENCE WAS A "CONTINUING OBSTACLE" TO THE EMPLOYEES'
EXERCISE OF THEIR STATUTORY RIGHTS.  THIS CONCLUSION OF CONTINUATION OF
THE EFFECTS OF AN EMPLOYER-DOMINATED BEGINNING IS A PERMISSIBLE ONE FOR
THE BOARD TO DRAW.  CF. LABOR BOARD V. SOUTHERN BELL TEL. CO., ANTE, P.
50.  IT DISPOSES OF THE ARGUMENT THAT THE MEN WERE FREE AT ANY TIME TO
ELIMINATE THE CHECK-OFF; BECAUSE OF THE I.O.E.'S ORIGIN THE BOARD COULD
CONCLUDE, AS IT DID, THAT THEY WERE NOT AS FREE AS THE STATUTE
REQUIRES.  ALSO, IN VIEW OF THE COMPANY'S INTERFERENCE IN AND SUPPORT
GIVEN TO THE I.O.E. AND THE CELERITY OF AGREEMENT IN THE BARGAINING
CONFERENCE, THE BOARD COULD INFER, DESPITE THE FACT THAT DEMANDS FOR
THE CLOSED-SHOP AND THE CHECK-OFF ORIGINATED WITH THE I.O.E., THAT THE
COMPANY SEIZED UPON THOSE PROVISIONS TO ESTABLISH THE I.O.E. FIRMLY. 
THE FACT THAT A CONTRARY INFERENCE IS POSSIBLE FROM THE EVIDENCE DOES
NOT ALLOW US TO SET ASIDE THE ONE DRAWN BY THE BOARD.  LABOR BOARD V.
NEVADA COPPER CO., 316 U.S. 105.  THIS DISSIPATES THE FORCE OF THE
ARGUMENT THAT THE CLOSED-SHOP AND CHECK-OFF PROVISIONS WERE FORCED UPON
THE COMPANY AGAINST ITS WILL. 

THE INSTANT REIMBURSEMENT ORDER IS NOT A REDRESS FOR A PRIVATE
WRONG.  LIKE A BACK PAY ORDER, IT DOES RESTORE TO THE EMPLOYEES IN SOME
MEASURE WHAT WAS TAKEN FROM THEM BECAUSE OF THE COMPANY'S UNFAIR LABOR
PRACTICES.  IN THIS, BOTH THESE TYPES OF MONETARY AWARDS SOMEWHAT
RESEMBLE COMPENSATION FOR PRIVATE INJURY, BUT IT MUST BE CONSTANTLY
REMEMBERED THAT BOTH ARE REMEDIES CREATED BY STATUTE - THE ONE
EXPLICITLY AND THE OTHER IMPLICITLY IN THE CONCEPT OF EFFECTUATION OF
THE POLICIES OF THE ACT - WHICH ARE DESIGNED TO AID IN ACHIEVING THE
ELIMINATION OF INDUSTRIAL CONFLICT.  THEY VINDICATE PUBLIC, NOT
PRIVATE, RIGHTS.  CF. AGWILINES, INC. V. LABOR BOARD, 87 F.2D 146, 150
51; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177.  FOR THIS REASON
IT IS ERRONEOUS TO CHARACTERIZE THIS REIMBURSEMENT ORDER AS PENAL OR AS
THE ADJUDICATION OF A MASS TORT.  IT IS EQUALLY WRONG TO FETTER THE
BOARD'S DISCRETION BY COMPELLING IT TO OBSERVE CONVENTIONAL COMMON LAW
OR CHANCERY PRINCIPLES IN FASHIONING SUCH AN ORDER, OR TO FORCE IT TO
INQUIRE INTO THE AMOUNT OF DAMAGES ACTUALLY SUSTAINED.  WHETHER AND TO
WHAT EXTENT SUCH MATTERS SHOULD BE CONSIDERED IS A COMPLEX PROBLEM FOR
THE BOARD TO DECIDE IN THE LIGHT OF ITS ADMINISTRATIVE EXPERIENCE AND
KNOWLEDGE.  THE BOARD HAS HERE DETERMINED THAT THE EMPLOYEES SUFFERED A
DEFINITE LOSS IN THE AMOUNT OF THE DUES DEDUCTED FROM THEIR WAGES AND
THAT THE EFFECTUATION OF THE POLICIES OF THE ACT REQUIRES REIMBURSEMENT
OF THOSE DUES IN FULL.  WE CANNOT SAY THIS CONSIDERED JUDGMENT DOES NOT
EFFECTUATE THE STATUTORY PURPOSE. 

THE ARGUMENT THAT THE EMPLOYEES RECEIVED SOME VALUE FROM THEIR
CONTRIBUTIONS VIA THE CHECK-OFF TO THE COMPANY-DOMINATED I.O.E., IS
BASED UPON THE ASSUMPTION THAT SUCH AN ORGANIZATION NECESSARILY GIVES
SOME QUID PRO QUO.  BUT IN VIEW OF THE PURPOSES OF THE ACT, A CONTRARY
ASSUMPTION, THAT EMPLOYEES RECEIVE NO BENEFIT FROM A TYPE OF
ORGANIZATION WHICH CONGRESS HAS CHARACTERIZED AS DETRIMENTAL TO THE
INTERESTS OF EMPLOYEES AND PROVOCATIVE OF INDUSTRIAL UNREST, IS
POSSIBLE.  THESE ARE CONSIDERATIONS FOR THE BOARD TO DECIDE ACCORDING
TO ITS REASONED JUDGMENT.  WE HOLD THAT THE BOARD HERE MADE AN
ALLOWABLE JUDGMENT.  THAT JUDGMENT CANNOT BE UPSET BY POINTING TO
SUBSTANTIAL WAGE INCREASES WHICH THE I.O.E. WAS GRANTED.  AS THE COURT
BELOW SAID, "IT IS MANIFESTLY IMPOSSIBLE TO SAY THAT GREATER BENEFITS
MIGHT NOT HAVE BEEN SECURED IF THE FREEDOM OF CHOICE OF A BARGAINING
AGENT HAD NOT BEEN INTERFERED WITH."  132 F.2D AT 398.  CF. TEXAS & NEW
ORLEANS R. CO. V. RAILWAY CLERKS, 281 U.S. 548, 559. 

THIS REIMBURSEMENT ORDER CANNOT BE LABELLED "PENAL."  THE PURPOSE OF
THE ORDER IS NOT TO PENALIZE THE COMPANY BY REQUIRING REPAYMENT OF SUMS
IT DID NOT RETAIN IN ITS TREASURY.  THOSE SUMS DID GO INTO THE TREASURY
OF THE COMPANY'S CREATURE TO ACCOMPLISH PURPOSES THE COMPANY EVIDENTLY
BELIEVED TO BE TO ITS ADVANTAGE, AND THE ORDER OF REIMBURSEMENT IS
INTENDED TO REMOVE THE EFFECTS OF THIS UNFAIR LABOR PRACTICE BY
RESTORING TO THE EMPLOYEES WHAT WOULD NOT HAVE BEEN TAKEN FROM THEM IF
THE COMPANY HAD NOT CONTRAVENED THE ACT.  THIS IS NOT A CASE IN WHICH
THE BOARD HAS ORDERED THE PAYMENT OF SUMS TO THIRD PARTIES, OR HAS MADE
EMPLOYEES MORE THAN WHOLE.  CF. REPUBLIC STEEL CORP. V. LABOR BOARD,
311 U.S. 7.  THE FACT THAT THE BOARD MAY ONLY HAVE APPROXIMATED ITS
EFFORTS TO MAKE THE EMPLOYEES WHOLE, BECAUSE OF ASSERTED BENEFITS OF
DUBIOUS AND UNASCERTAINABLE NATURE FLOWING FROM THE I.O.E., DOES NOT
CONVERT THIS REIMBURSEMENT ORDER INTO THE IMPOSITION OF A PENALTY.  CF.
OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572, 583-84. 

WE NEED NOT NOW EXAMINE THE VARIOUS SITUATIONS THAT WERE BEFORE THE
CIRCUIT COURTS OF APPEALS IN THE CASES COLLECTED IN NOTE 1, ANTE, OR
CONSIDER HYPOTHETICAL POSSIBILITIES.  WE DECIDE ONLY THE CASE BEFORE US
AND SUSTAIN THE POWER OF THE BOARD TO ORDER REIMBURSEMENT IN FULL UNDER
THE CIRCUMSTANCES HERE DISCLOSED.  AFFIRMED. 

FN1  IN ELEVEN CASES FIVE CIRCUITS, UNDER VARYING CIRCUMSTANCES AND
ON DIVERSE REASONING, HAVE REFUSED TO ENFORCE BOARD ORDERS REQUIRING
REIMBURSEMENT OF CHECKED-OFF DUES.  SEE WESTERN UNION TELEGRAPH CO. V.
LABOR BOARD, 113 F.2D 992(C.C.A. 2); CORNING GLASS WORKS V. LABOR
BOARD, 118 F.2D 625(C.C.A. 2); LABOR BOARD V. WEST KENTUCKY COAL CO.,
116 F.2D 816(C.C.A. 6); LABOR BOARD V. U.S. TRUCK CO., 124 F.2D
887(C.C.A. 6); LABOR BOARD V. GERITY WHITAKER CO., 137 F.2D 198(C.C.A.
6); LABOR BOARD V. J. GREENEBAUM TANNING CO., 110 F.2D 984(C.C.A. 7);
A.E. STALEY MFG. CO. V. LABOR BOARD, 117 F.2D 868(C.C.A. 7); RELIANCE
MFG. CO. V. LABOR BOARD, 125 F.2D 311(C.C.A. 7); KANSAS CITY POWER &
LIGHT CO. V. LABOR BOARD, 111 F.2D 340(C.C.A. 8); LABOR BOARD V.
SOUTHWESTERN GREYHOUND LINES, 126 F.2D 883(C.C.A. 8); LABOR BOARD V.
CONTINENTAL OIL CO., 121 F.2D 120(C.C.A. 10). 

FN2  THE BOARD'S FULL STATEMENT ON THIS POINT FOLLOWS: 

"THE RESPONDENT CONCLUDED A CLOSED-SHOP CONTRACT WITH THE I.O.E., A
COMPANY-DOMINATED ORGANIZATION, THUS COMPELLING ITS EMPLOYEES TO BECOME
AND REMAIN MEMBERS OF THE ILLEGAL ORGANIZATION.  EMPLOYEES WERE IN FACT
DISCHARGED BECAUSE THEY REFUSED TO JOIN THE I.O.E.  THE CHECK-OFF
PROVISION, A DEVICE BY WHICH THE RESPONDENT ASSURED THE FINANCIAL
STABILITY OF THE COMPANY-DOMINATED ORGANIZATION, COULD NO MORE BE
AVOIDED BY THE EMPLOYEES THAN COULD THE COMPULSORY MEMBERSHIP
REQUIREMENT.  THE BYLAWS OF THE I.O.E. REQUIRED ITS MEMBERS TO EXECUTE
CHECK-OFF AUTHORIZATIONS UNDER PENALTY OF BEING DROPPED FROM MEMBERSHIP
IN THE I.O.E., AND THEREBY, UNDER THE CLOSED-SHOP PROVISION, FROM THEIR
JOBS.  WE FIND THAT THE MONIES THUS DEDUCTED FROM THE WAGES OF THE
EMPLOYEES CONSTITUTED THE PRICE OF RETAINING THEIR JOBS, A PRICE
COERCED FROM THEM FOR RESPONDENT'S PURPOSE OF SUPPORTING AND
MAINTAINING THE ORGANIZATION WHICH RESPONDENT HAD DOMINATED IN ORDER TO
THWART BONA FIDE REPRESENTATION.  WE FURTHER FIND THAT, AS A RESULT OF
THE IMPOSITION OF THE ILLEGAL CLOSED-SHOP AND CHECK-OFF REQUIREMENTS,
THE EMPLOYEES SUFFERED A DEFINITE LOSS AND DEPRIVATION OF WAGES EQUAL
TO THE AMOUNTS DEDUCTED FROM THEIR WAGES AND PAID OVER TO THE I.O.E.
IT IS APPROPRIATE THAT THE EMPLOYEES BE MADE WHOLE BY REIMBURSEMENT OF
AMOUNTS EXACTED FROM THEM FOR ILLEGAL PURPOSES.  WE FIND THAT IN THESE
CIRCUMSTANCES, THE EFFECTS OF THE UNFAIR LABOR PRACTICES MAY BE FULLY
REMEDIED AND THE PURPOSES AND POLICIES OF THE ACT MAY BE COMPLETELY
EFFECTUATED ONLY BY RESTORING THE STATUS QUO.  HENCE, WE SHALL ORDER
THE RESPONDENT TO REIMBURSE ITS EMPLOYEES FOR THE AMOUNTS DEDUCTED FROM
THEIR WAGES FOR DUES AND ASSESSMENTS IN THE I.O.E." 

FN3  49 STAT. 449; 29 U.S.C. SEC. 151 ET SEQ. 

FN4  THE PROVISO IN THE CHECK-OFF AGREEMENT THAT EMPLOYEES MIGHT
REVOKE THEIR INDIVIDUAL AUTHORIZATIONS AT ANY TIME WAS ADMITTEDLY
MEANINGLESS IN VIEW OF THE CLOSED SHOP AGREEMENT AND THE REQUIREMENT IN
THE I.O.E. BY-LAWS THAT ITS MEMBERS AUTHORIZE THE CHECK-OFF. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

IF THE CONTROLLING FACTS IN THIS CASE WERE LIKE THOSE IN WESTERN
UNION TEL. CO. V. LABOR BOARD, 113 F.2D 992, I TOO WOULD ACCEPT THE
REASONING OF JUDGE LEARNED HAND'S OPINION IN THAT CASE AND JOIN MY
BROTHER ROBERTS.  BUT THE VITAL DIFFERENCE BETWEEN THE WESTERN UNION
AND THIS CASE IS THAT, IN THE FORMER, "THERE WAS NO EVIDENCE THAT ALL
THOSE WHO ASKED TO HAVE THEIR WAGES STOPPED, DID SO IN ANY PART BECAUSE
THEY WERE COERCED."  ID., AT 997.  HERE THE EMPLOYEES HAD NO SUCH
CHOICE; THEY COULD AVOID THE CHECK-OFF OF UNION DUES ONLY BY GIVING UP
THEIR JOBS. 

WE START WITH THE BOARD'S FINDING - A FINDING NOT HERE FOR REVIEW -
THAT THROUGH ITS DOMINATION OF THE I.O.E. THE COMPANY INDULGED IN AN
UNFAIR LABOR PRACTICE.  BUT NOT ONLY DID IT FOSTER THAT COMPANY UNION,
IT FOISTED MEMBERSHIP IN THE UNION UPON ALL ITS EMPLOYEES.  THE BOARD
HAD A RIGHT TO FIND THAT MEMBERSHIP IN THE UNION, WHICH THE EMPLOYEES
HAD NO POWER TO REJECT, EQUALLY DENIED THE EMPLOYEES THE POWER TO
REJECT THE COSTS OF THAT MEMBERSHIP.  IT WAS THEREFORE JUSTIFIED IN
CONCLUDING THAT THE EMPLOYEES SHOULD BE MADE WHOLE FOR THAT WHICH WAS
THE CONSEQUENCE OF THE COMPANY'S COMPULSION UPON THEM.  THEREIN THIS
CASE DIFFERS NOT ONLY FROM THE WESTERN UNION CASE BUT ALSO FROM THE
DECISIONS IN FOUR OTHER CIRCUITS UPON WHICH MY BROTHER ROBERTS RELIES:
LABOR BOARD V. WEST KENTUCKY COAL CO., 116 F.2D 816, 823(C.C.A. 6);
RELIANCE MFG. CO. V. LABOR BOARD, 125 F.2D 311(C.C.A. 7); LABOR BOARD
V. SOUTHWESTERN GREYHOUND LINES, 126 F.2D 883, 887(C.C.A. 8); LABOR
BOARD V. CONTINENTAL OIL CO., 121 F.2D 120, 125(C.C.A. 10). 

NEEDLESS TO SAY, WE HAVE NOTHING TO DO WITH THE WISDOM OF THE BOARD'S
REQUIREMENT THAT THE COERCED DUES BE RESTORED TO THE EMPLOYEES.  OUR
DECISION CAN GO NO FURTHER THAN THAT, WITHIN THE FRAMEWORK OF THE
GENERAL AUTHORITY GIVEN TO IT BY CONGRESS, THE BOARD IS EMPOWERED TO
FIND THAT WHEN MEN PAY DUES TO A COMPANY-DOMINATED UNION, UPON PAIN OF
FORFEITING THEIR JOBS, IT IS THE COMPANY WHICH HAS IN FACT COMMANDED
THE PAYMENT OF THE DUES AND IT IS THE COMPANY WHICH MUST MAKE
RESTORATION. 

MR. JUSTICE ROBERTS: 

THE SINGLE QUESTION PRESENTED IS WHETHER THE NATIONAL LABOR RELATIONS
BOARD, IN ORDERING DISESTABLISHMENT OF AN UNAFFILIATED UNION, MAY, IN
THE CIRCUMSTANCES DISCLOSED, ORDER REIMBURSEMENT OF DUES PAID BY THE
EMPLOYES TO THE UNION PURSUANT TO INDIVIDUAL ASSIGNMENTS BY EMPLOYES
AND A UNION AGREEMENT FOR A CLOSED SHOP AND A CHECK-OFF OF DUES. 

THE COURT BELOW (ONE JUDGE DISSENTING) HAS SUSTAINED THIS FEATURE OF
THE ORDER.  I AM OF OPINION THAT ITS JUDGMENT SHOULD BE REVERSED. 

THE ONLY PROVISION OF THE ACT ON WHICH THE BOARD RELIES IS THAT FOUND
IN SEC. 10(C) FN1  WHICH IS THAT THE BOARD MAY REQUIRE THE EMPLOYER "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."  THE
CRITICAL PHRASE IS "TO TAKE SUCH AFFIRMATIVE ACTION  ...  AS WILL
EFFECTUATE THE POLICIES OF THIS ACT."  THE POLICIES OF THE ACT ARE
STATED IN SEC. 1  FN2  AS THE ENCOURAGEMENT OF THE PRACTICE AND
PROCEDURE OF COLLECTIVE BARGAINING AND THE PROTECTION OF THE EXERCISE
BY WORKERS OF FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND
DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING, FOR THE PURPOSE
OF NEGOTIATING THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT OR OTHER
MUTUAL AID OR PROTECTION.  FN3 IT IS PLAIN THAT A REIMBURSEMENT ORDER
MAY BE MADE BY THE BOARD ONLY IF IT WILL EFFECTUATE THESE POLICIES. 

THE COURT BELOW HAS INTERPRETED THIS GRANT OF POWER TO THE BOARD AS
PERMITTING WHAT THE COURT CHARACTERIZES AS A RESTORATION OF THE STATUS
QUO.  THE ACT, HOWEVER, CONTAINS NO SUCH EXPRESSION AND IF IT IS GIVEN,
AS I THINK IT HAS BEEN IN THE PRESENT INSTANCE, THE MEANING OF REDRESS
OF PRIVATE WRONGS, IT MISREPRESENTS THE CLEAR INTENT OF THE STATUTE. 
FN4    THE ACT GIVES THE BOARD NO POWER TO IMPOSE LIABILITY FOR ANY
SUPPOSED INJURY ARISING OUT OF THE COMPULSION OF EMPLOYES TO CONTRIBUTE
DUES TO THE UNION.  NOR CAN THE ORDER OF RESTITUTION BE GROUNDED UPON
ANY THEORY THAT, ALTHOUGH THE UNFAIR LABOR PRACTICE CONSTITUTES A
PUBLIC RATHER THAN A PRIVATE WRONG, THE POWER GRANTED TO EFFECTUATE THE
POLICIES OF THE ACT ENVISAGES IMPOSITION OF A PENALTY FOR WRONGFUL
CONDUCT ON THE PART OF THE EMPLOYER.  FN5 

THERE REMAINS THE QUESTION WHETHER THE ORDER UNDER REVIEW CAN BE
JUSTIFIED AS APPROPRIATE TO EFFECTUATE THE POLICIES OF THE ACT.  THIS
QUESTION SHOULD BE ANSWERED IN THE LIGHT OF THE FACTS DISCLOSED BY THE
RECORD.  THE BOARD HAS FOUND THAT THE EMPLOYER WAS GUILTY OF UNFAIR
LABOR PRACTICES IN INFLUENCING EMPLOYES IN FAVOR OF A COMPANY UNION. 
THE ORDER REQUIRES THE COMPANY TO CEASE AND DESIST FROM THE PRACTICES,
TO CEASE GIVING EFFECT TO THE EXISTING AGREEMENT WITH THE UNION, AND TO
WITHDRAW RECOGNITION FROM AND DISESTABLISH THAT ORGANIZATION AS A
BARGAINING UNIT.  THIS ORDER IS SUPPORTED BY FINDINGS THAT, AT A TIME
WHEN NO UNION EXISTED, THE COMPANY THREW ITS INFLUENCE IN FAVOR OF AN
UNAFFILIATED OR COMPANY UNION.  ALL THE FACTS FOUND IN THIS CONNECTION
RELATE TO A TIME ANTERIOR TO THE ORGANIZATION OF THE UNION.  THERE IS
NO FINDING, AND NO FACTS WHICH WOULD JUSTIFY A FINDING, THAT SUBSEQUENT
TO THE ORGANIZATION OF THE UNION THE EMPLOYER INTERFERED WITH IT,
DOMINATED IT, OR SUPPORTED IT IN ANY MANNER.  THE UNION THEN ORGANIZED
MADE DEMANDS UPON THE COMPANY WHICH WERE THE SUBJECT OF NEGOTIATIONS
AND OUT OF THOSE NEGOTIATIONS GREW AN INCREASE OF WAGES TOTALING ABOUT
$600,000 PER ANNUM AND A COLLECTIVE BARGAINING AGREEMENT WHICH
CONTAINED PROVISIONS FOR A CLOSED SHOP AND FOR THE CHECK-OFF OF UNION
DUES, BOTH OF WHICH FEATURES WERE DEMANDED AND INSISTED UPON BY THE
UNION.  THERE IS NO FINDING AND NO EVIDENCE THAT THE EMPLOYER IN FACT
INSPIRED, INSTIGATED, OR COERCED THE EMPLOYES TO MAKE THESE DEMANDS OR
HAD, EVEN REMOTELY, ANYTHING TO DO WITH THEM OTHER THAN THEY FOLLOWED
ITS EARLIER ENCOURAGEMENT OF THE ORGANIZATION OF THE UNION.  FROM THE
DAY THAT CONTRACT WAS SIGNED, NO ACT OF INTERFERENCE OR DOMINATION, AND
NO WORD EVEN OF SUGGESTION FROM THE COMPANY AS TO THE UNION POLICY OR
PRACTICES IS SHOWN.  THE RECORD DEMONSTRATES THAT THE EMPLOYER INSISTED
THAT THE CHECK-OFF OF UNION DUES SHOULD BE AUTHORIZED BY EACH EMPLOYE
INDIVIDUALLY, SUBJECT TO HIS UNTRAMMELED RIGHT OF REVOCATION, AND THAT
THE CLOSED-SHOP PROVISION SHOULD NOT PREVENT ANY MEMBER OF THE COMPANY
UNION FROM ALSO JOINING ANY OTHER UNION OF HIS CHOICE.  THE FIXATION OF
THE UNION DUES WAS A MATTER WITHIN THE CONTROL OF THE UNION MEMBERS AND
CONTINUANCE OF CHECK-OFF AS RESPECTS ANY EMPLOYE WAS A MATTER FOR HIS
VOLUNTARY DETERMINATION SO FAR AS THE EMPLOYER WAS CONCERNED.  WHILE IT
IS NOT DENIED THAT THE UNION PROCURED SUBSTANTIAL BENEFITS FOR ITS
MEMBERS OR THAT IT REPRESENTED THEM FAITHFULLY AND FAIRLY,
NEVERTHELESS, BECAUSE OF THE COMPANY'S INTERFERENCE AT THE TIME OF THE
ORGANIZATION OF THE UNION, THAT ORGANIZATION HAS BEEN DISESTABLISHED
AND INDEED HAS NOW BEEN DISSOLVED. 

IT IS TO BE NOTED THAT HAD IT NOT BEEN FOR THE DEFECT WHICH TAINTED
ITS CAPACITY TO REPRESENT THE EMPLOYES, ITS OTHER ACTIVITIES WOULD HAVE
BEEN WHOLLY IN ACCORDANCE WITH THE OBJECTS AND PURPOSES OF THE NATIONAL
LABOR RELATIONS ACT.  NOTHING IN THAT ACT INVALIDATES A COLLECTIVE
BARGAINING AGREEMENT PROVIDING FOR A CLOSED SHOP OR FOR A CHECK-OFF OF
DUES.  IF IN FACT THOSE FEATURES OF THE AGREEMENT WERE THE VOLUNTARY
ACT OF THE EMPLOYES, AS ON THIS RECORD THEY MUST BE FOUND TO HAVE BEEN,
IT IS DIFFICULT TO SEE HOW THE POLICIES OF THE ACT ARE TO BE
EFFECTUATED BY REPAYMENT TO THE EMPLOYES OF THE DUES HERETOFORE PAID
WHEN SUCH REPAYMENT CAN IN NO WISE BENEFIT THE ASSOCIATION WHICH HAS
BEEN DISESTABLISHED. 

THE COMPANY UNION HAVING BEEN DISESTABLISHED, THE EMPLOYES ARE FREE
TO FORM OR JOIN ANY UNION AND MAKE IT THEIR BARGAINING AGENT.  ANY
POSSIBLE EFFECT OF COMPANY INFLUENCE HAS BEEN DISSIPATED.  THE ONLY
POSSIBLE EFFECT OF RESTITUTION OF DUES TO EMPLOYES WHO HAVE NOT ASKED
FOR REPAYMENT, WHO HAVE RECEIVED SUBSTANTIAL BENEFITS FROM THEIR
CONTRIBUTION OF DUES, IS TO PUNISH THE EMPLOYER AND PERCHANCE OPERATE
AS A WARNING TO OTHER EMPLOYERS THAT THEY WILL SIMILARLY BE PUNISHED
FOR UNFAIR LABOR PRACTICES. 

THE BOARD SEEKS TO SUSTAIN THE ORDER ON THE GROUND THAT THE ACT
AUTHORIZES, AS ONE FORM OF AFFIRMATIVE ACTION TO EFFECTUATE THE
POLICIES OF THE ACT, THE REINSTATEMENT OF EMPLOYES WITH OR WITHOUT BACK
PAY.  THE AWARD OF BACK PAY, HOWEVER, STANDS ON A DIFFERENT BASIS.  IF
EMPLOYES ARE TO BE FACED WITH DISCRIMINATORY DISCHARGE FOR ADVOCATING
UNION REPRESENTATION BY AN ORGANIZATION OF THEIR CHOICE, THE THREAT
WILL RENDER DOUBTFUL, IF NOT IMPOSSIBLE, FREE AND UNCONTROLLED ACTION
ON THE PART OF THE EMPLOYES.  THE ACT, THEREFORE, IS AN ANNOUNCEMENT TO
EMPLOYES THAT IF THEY ARE DISCHARGED FOR SUCH ACTIVITY THEY MAY HAVE
REINSTATEMENT AND, IN PROPER CASES, BACK PAY.  SUCH A PROMISE TO
EMPLOYES WAS ESSENTIAL TO ASSURE THEM IMMUNITY FOR CONDUCT MADE LAWFUL
BY THE ACT.  BUT THE PAYMENT OF UNION DUES IS QUITE ANOTHER MATTER,
PARTICULARLY WHERE, AS HERE, NO EMPLOYE WAS OBLIGED TO JOIN THE UNION,
AND NO DISCRIMINATION BETWEEN EMPLOYES RESULTED FROM JOINING OR PAYING
DUES TO THE RECOGNIZED UNION.  IT IS INCONCEIVABLE THAT THE HOPE OF
REIMBURSEMENT OF DUES PAID TO THE UNION IN QUESTION WOULD HAVE ANY
EFFECT ON THE CONDUCT OF THE MEMBERS TO JOIN OR REFRAIN FROM JOINING
THIS UNION OR JOINING ANOTHER AS THEY WERE FREE TO DO.  MOREOVER, THE
EMPLOYES WERE FREE UNDER THE ACT TO ADHERE TO ANOTHER ORGANIZATION AND
TO BRING ABOUT AN ELECTION FOR THE CHOICE OF ANOTHER BARGAINING
REPRESENTATIVE.  THE BOARD MADE NO INQUIRY AND NO FINDING RESPECTING
COERCION OF INDIVIDUAL EMPLOYES. 

AS I HAVE ALREADY INDICATED, THE ONLY EFFECT OF THE ORDER IS TO
REDRESS A SUPPOSED PRIVATE WRONG TO EMPLOYES WHICH THE EVIDENCE AND
FINDINGS INDICATE NEVER WAS INFLICTED, AND TO INFLICT DRASTIC
PUNISHMENT OF THE EMPLOYER FOR ITS EARLIER VIOLATION OF THE STATUTE BY
ENCOURAGING ITS EMPLOYES TO ORGANIZE.  NEITHER IS WITHIN THE COMPETENCE
OF THE BOARD, AS THIS COURT HAS REPEATEDLY HELD.  FN6 

LIKE ORDERS HAVE BEEN BEFORE THE COURTS IN ELEVEN OTHER CASES, AS
SHOWN BY THE OPINION OF THE COURT.  ALL HAVE REACHED THE CONCLUSION
THAT THE ACT DOES NOT AUTHORIZE SUCH AN ORDER.  FN7  I THINK THAT
SHOULD BE THE DECISION OF THE COURT IN THIS CASE. 

FN1  29 U.S.C. SEC. 160(C). 

FN2  29 U.S.C. SEC. 151. 

FN3  SEE REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7, 10; LABOR
BOARD V. FANSTEEL CORP., 306 U.S. 240, 257. 

FN4  H.R. 972, 74TH CONG., 1ST SESS., P. 21; H.R. 1147, 74TH CONG.,
1ST SESS., P. 24.  NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350,
362, 363. 

FN5  CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197, 236;
REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7, 11, 12. 

FN6  SEE NOTES 4 AND 5, SUPRA. 

FN7  I MIGHT WELL HAVE CONTENTED MYSELF, IN LIEU OF WRITING, WITH A
REFERENCE TO THE OPINION IN WESTERN UNION TEL. CO. V. LABOR BOARD, 113
F.2D 992, WHICH EXHAUSTIVELY AND CONVINCINGLY DEALS WITH THE SUBJECT. 

THE CHIEF JUSTICE AND MR. JUSTICE JACKSON JOIN IN THIS DISSENT. 
..END :












I.C.C. V. COLUMBUS & GREENVILLE RY., 319 U.S. 551 


NO. 628.  ARGUED APRIL 7, 8, 1943.  REARGUED MAY 13, 1943.  - DECIDED
JUNE 7, 1943.  - 46 F.SUPP.  204, REVERSED. 


ONE OF SEVERAL RAILROADS WHOSE LINES CONNECTED AT POINTS WHERE
COTTONSEED WAS MILLED, AND WHOSE RESPECTIVE TARIFFS ALLOWED "CUT-BACKS"
ON RATES ON INBOUND HAULS OF COTTONSEED THE MILLED PRODUCTS OF WHICH
WERE HAULED OUTBOUND BY THE SAME CARRIER THAT HAULED IN THE SEED FROM
WHICH THEY WERE PRODUCED, FILED A TARIFF ALLOWING SHIPPERS THE BENEFIT
OF THE CUT-BACKS ON SHIPMENTS OUTBOUND OVER ITS LINE, WHETHER THE
CORRESPONDING INBOUND HAUL WAS OVER THAT LINE OR ONE OF THE CONNECTING
LINES.  THE INTERSTATE COMMERCE COMMISSION ORDERED THE TARIFF CANCELED
UPON THE GROUND THAT, IN VIOLATION OF SEC. 6(4) OF THE INTERSTATE
COMMERCE ACT, IT OPERATED TO REDUCE ESTABLISHED OUTBOUND JOINT RATES TO
POINTS BEYOND THAT CARRIER'S LINE WITHOUT THE CONCURRENCE OF
PARTICIPATING CARRIERS, AND UPON THE GROUND THAT ITS OPERATION ENTAILED
VIOLATIONS ALSO OF SECS. 1(6) AND 6(7).  HELD THAT THE ORDER OF THE
COMMISSION SHOULD NOT HAVE BEEN ENJOINED.  P. 555. 

INTERSTATE COMMERCE COMMISSION ET AL. V. COLUMBUS & GREENVILLE RAILWAY
CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF MISSISSIPPI. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES WHICH
ENJOINED THE ENFORCEMENT OF AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON DIRECT APPEAL FROM A DECREE OF A SPECIALLY
CONSTITUTED DISTRICT COURT OF THREE JUDGES  FN1  ENJOINING THE
ENFORCEMENT OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
CANCELLING CERTAIN "CUT-BACKS" ON COTTONSEED AND ITS PRODUCTS CONTAINED
IN APPELLEE'S I.C.C. TARIFF NO. 81.  FN2 

THE APPELLEE OPERATES 168 MILES OF RAILWAY EXTENDING EAST AND WEST
WITHIN THE STATE OF MISSISSIPPI.  COTTONSEED AND ITS PRODUCTS, TO WHICH
THE TARIFF IN QUESTION RELATES, ARE IMPORTANT ITEMS OF TRAFFIC IN THE
REGION, AND THERE ARE COTTONSEED MILLS AT A NUMBER OF POINTS ON
APPELLEE'S LINE.  APPELLEE ORIGINATES ABOUT 15 OR 20 PER CENT OF THE
COTTONSEED MILLED THERE; TRUCKS ORIGINATE ABOUT 50 PER CENT; AND THE
BALANCE COMES TO THE MILLS ON OTHER LINES WITH WHICH THE APPELLEE
CONNECTS AT THESE POINTS, INCLUDING THE ILLINOIS CENTRAL RAILROAD
COMPANY, THE MOBILE & OHIO RAILROAD COMPANY, THE ST. LOUIS-SAN
FRANCISCO RAILROAD COMPANY, AND THE YAZOO & MISSISSIPPI VALLEY RAILWAY
COMPANY. 

SINCE 1931, THESE RAILROADS AND APPELLEE HAVE MAINTAINED A SYSTEM OF
CUT-BACKS ORIGINALLY DESIGNED, AND SUCCESSIVELY REVISED, FOR THE
PURPOSE OF MEETING THE COMPETITION OF TRUCK LINES.  SPEAKING GENERALLY,
THE SYSTEM PERMITTED ONE WHO SHIPPED COTTONSEED INTO THE MILL POINT AND
PAID THE FULL LOCAL RATE FOR THAT INBOUND HAUL TO RECEIVE BACK PART OF
THE AMOUNT SO PAID IF HE LATER SHIPPED THE PRODUCT OUTBOUND BY THE SAME
CARRIER.  IF THE OUTBOUND HAUL WAS NOT BY THE CARRIER THAT HAD MADE THE
INBOUND HAUL, HE WAS NOT ENTITLED TO THE CUT-BACK. 

TO BETTER ITS POSITION WITH RESPECT TO THE OUTBOUND HAULS OF
COTTONSEED ORIGINATED BY OTHER LINES, APPELLEE TOOK MEASURES WHICH IT
CALLS "SELF-HELP TO MEET COMPETITION."  IT SOUGHT BY ITS I.C.C. TARIFF
NO. 81 TO ESTABLISH SCHEDULES OF PAYMENTS TO SHIPPERS WHICH WOULD GIVE
THEM THE BENEFIT OF THE CUT-BACKS ON COTTONSEED AND ITS PRODUCTS
SHIPPED OUTBOUND OVER ITS LINE, WHETHER THE INBOUND HAUL WAS OVER ITS
OWN LINE OR OVER A CONNECTING LINE.  THIS TARIFF WAS NEITHER PROTESTED
NOR SUSPENDED, AND BECAME EFFECTIVE OCTOBER 16, 1938.  AFTER THE
COMMISSION'S BUREAU OF TRAFFIC HAD CRITICIZED THIS TARIFF AND REQUESTED
ITS CORRECTION, APPELLEE FILED ITS I.C.C. TARIFF NO. 83, DIFFERING IN
IMMATERIAL PARTICULARS FROM ITS TARIFF NO. 81.  THE COMMISSION ORDERED
NO. 83 SUSPENDED AND ENTERED UPON AN INVESTIGATION OF ITS LAWFULNESS. 
FN3 

IN ITS REPORT,  FN4  DIVISION 3 OF THE COMMISSION HELD:  THE
SUSPENDED TARIFF WAS AN EFFORT TO REDUCE THE OUTBOUND JOINT RATES,
ESTABLISHED TO POINTS BEYOND APPELLEE'S LINE WITH THE CONCURRENCE OF
THE PARTICIPATING CARRIERS, WITHOUT OBTAINING THEIR CONCURRENCE IN SUCH
REDUCTION, AND THEREFORE IT VIOLATED SEC. 6(4) OF THE ACT.  FN5  THE
SUSPENDED SCHEDULES DID NOT "LAWFULLY NAME OR PROVIDE ANY LEGAL RATES
WHATSOEVER," N6 AND WERE IN VIOLATION OF SEC. 6(7),  FN7  SINCE THE
CONTEMPLATED "REFUND WOULD BE, ESSENTIALLY, A REBATE, WHEREBY THE
PROPERTY WOULD BE TRANSPORTED FROM THE MILL POINT TO THE DESTINATION ON
ANOTHER LINE AT A LOWER RATE THAN THAT NAMED IN THE JOINT TARIFF
PUBLISHED AND FILED BY THE SEVERAL CARRIERS PARTICIPATING IN THE
MOVEMENT AND LAWFULLY IN EFFECT.  ...  RESPONDENT'S SUSPENDED TARIFF,
GRANTING AN ALLEGED ALLOWANCE TO THE SHIPPER NOTWITHSTANDING THAT HE
PERFORMS NO PART OF THE TRANSPORTATION SERVICE, AS THE RESULT OF WHICH
HE WOULD OBTAIN THE OUT-BOUND TRANSPORTATION AT LESS THAN THE RATES
LAWFULLY IN EFFECT WOULD CONSTITUTE AN UNREASONABLE PRACTICE, IN
VIOLATION OF SECTION 1(6)  FN8  AND OTHER PROVISIONS OF THE INTERSTATE
COMMERCE ACT."  FN9  ALTHOUGH NOT SHOWN TO BE UNLAWFUL AS APPLIED TO
TRAFFIC ORIGINATED AND CARRIED TO THE MILLS BY APPELLEE OVER ITS LINE,
THE TARIFF WAS DEFECTIVE IN THE PROPOSED FORM, AND SHOULD BE
CANCELLED. 

THE COMMISSION THEN OF ITS OWN MOTION ENTERED UPON AN INVESTIGATION
OF THE LAWFULNESS OF APPELLEE'S I.C.C. TARIFF NO. 81, WHICH HAD
REMAINED IN EFFECT AS THE RESULT OF THE SUSPENSION OF NO. 83. 

THE BRIEF AND NOT ALTOGETHER CLEAR OPINION OF THE FULL COMMISSION
CONCLUDED WITH THE STATEMENT THAT "WE FIND THAT, TO THE EXTENT
RESPONDENT'S TARIFF I.C.C. NO. 81 PROVIDES FOR REFUND, OR CUT-BACK, TO
THE SHIPPER ON TRAFFIC ORIGINATED AND HAULED TO THE MILL POINTS BY
OTHER RAIL CARRIERS, IT IS UNLAWFUL IN VIOLATION OF SECTION 1(6),
FROM THIS AND OTHER STATEMENTS CONTAINED IN THE OPINION OF THE FULL
COMMISSION IT APPEARS THAT THE COMMISSION SHARED THE VIEWS OF DIVISION
3 AS TO THE EFFECT OF THE SCHEDULE UPON THE OUTBOUND JOINT RATES AND
THE UNLAWFULNESS OF THAT EFFECT.  THE COMMISSION'S VIEW THAT THE TARIFF
OPERATED TO REDUCE SUCH OUTBOUND RATES WITHOUT THE CONCURRENCE OF THE
PARTICIPATING CARRIERS IS AT LEAST A TENABLE ONE, AND ONE WE ARE NOT
DISPOSED TO GAINSAY.  WHEN THAT VIEW IS TAKEN, VIOLATION OF SEC. 6(4)
FN11  IS CLEAR.  WITH THE IMPROPRIETY OF THE TARIFF UNDER SEC. 6(4)
ESTABLISHED, THE COMMISSION COULD REASONABLY CONCLUDE THAT ITS
OPERATION ENTAILED VIOLATIONS ALSO OF SECS. 1(6) AND 6(7).  FN12 

DISREGARD OF THE STATUTORY REQUIREMENTS FOR THE ESTABLISHMENT OF
JOINT TARIFFS MAY HAVE IMPORTANT SUBSTANTIVE CONSEQUENCES.  THE
INTERSTATE COMMERCE ACT CONTEMPLATES THAT JOINT RAILROAD RATES SHALL BE
ESTABLISHED ONLY BY CONCURRENCE OF THE PARTICIPATING CARRIERS OR BY THE
COMMISSION IN PROCEEDINGS UNDER SEC. 15.  FN13  IN THE EXERCISE OF ITS
POWER UNDER SEC. 15 TO FIX JOINT RATES WITHOUT THE CONCURRENCE OF THE
PARTICIPATING CARRIERS, THE COMMISSION IS REQUIRED BY SEC. 15(4) TO
PROTECT, IN STATED CIRCUMSTANCES, THE LONG HAULS OF PARTICIPATING
CARRIERS, AND TO GIVE REASONABLE PREFERENCE TO ORIGINATING CARRIERS. 
FN14  THE APPELLANT RAILROAD CARRIERS CLAIM, WITH WHAT FOUNDATION WE DO
NOT DECIDE, TO BE ENTITLED TO PROTECTION IN BOTH REGARDS, AND THAT TO
DENY THEM SUCH PROTECTION MAY FORCE THE ABANDONMENT OF BRANCH LINES
WHICH CONGRESS SOUGHT BY AMENDMENT TO SEC. 15(4) TO AVOID.  IT IS SAID
THAT IN RECENT YEARS THE ILLINOIS CENTRAL SYSTEM HAS ALREADY ABANDONED
BRANCH LINES IN MISSISSIPPI HAVING GREATER MILEAGE THAN THE WHOLE OF
APPELLEE'S LINE.  FN15  DIVISION 3 FOUND THAT THE EXISTING CUT-BACK
RATES WERE "EXTREMELY LOW, AVERAGING ONLY ABOUT 8.5 PERCENT OF THE
FIRSTCLASS RATES, WHEREAS IN THE GENERAL COTTONSEED PROCEEDING THE
COMMISSION PRESCRIBED 18.5 PERCENT OF FIRST CLASS AS REASONABLE, AND
THAT THESE LOW CUT-BACK RATES CAN BE JUSTIFIED ONLY IN CONSIDERATION OF
THE IN-BOUND CARRIER'S OBTAINING THE OUT-BOUND MOVEMENT."  FN16 THE
FULL COMMISSION REITERATED DIVISION 3'S FURTHER FINDING THAT "INSTEAD
OF PLACING ITSELF ON AN EQUAL BASIS WITH ITS COMPETITORS, RESPONDENT'S
PRESENT EFFECTIVE AND SUSPENDED TARIFFS PLACE IT IN A MORE FAVORABLE
POSITION THAN ANY OF THEM, SINCE THE TARIFFS OF NONE OF THEM GO SO FAR
AS TO GRANT A REFUND TO THE SHIPPER ON TRAFFIC MOVING INTO THE MILL
OVER THE LINE OF ANOTHER CARRIER."  FN17 

ALTHOUGH IT APPEARS THAT BY FAR THE GREATEST PART OF THE OUTBOUND
TRAFFIC OVER THE APPELLEE'S LINE MOVES BEYOND ON THE LINES OF
CONNECTING CARRIERS AT JOINTLY ESTABLISHED RATES, IT APPEARS THAT SOME
TRAFFIC DOES REACH ITS ULTIMATE DESTINATION AT POINTS ALONG APPELLEE'S
LINE.  IT WAS APPARENTLY WITH REFERENCE TO THIS TRAFFIC THAT THE
COMMISSION STATED THAT "THE FORM AND MANNER IN WHICH RESPONDENT'S
TARIFF IS PUBLISHED CLEARLY DOES NOT CONFORM TO THE REQUIREMENTS OF
RATE OVER THE THROUGH ROUTE HAS BEEN ESTABLISHED, THE SEVERAL CARRIERS
IN SUCH THROUGH ROUTE SHALL FILE, PRINT, AND KEEP OPEN TO PUBLIC
INSPECTION  ...  THE SEPARATELY ESTABLISHED RATES, FARES, AND CHARGES
APPLIED TO THE THROUGH TRANSPORTATION."  FN19  THE CHALLENGED TARIFF
PROVIDED THAT UPON SHIPMENT OUTBOUND OVER APPELLEE'S LINE "THE FREIGHT
CHARGES  ...  TO THE MANUFACTURING OR MILL POINT WILL BE REDUCED" IN
STATED AMOUNTS, ALTHOUGH SUCH CHARGES HAD BEEN MADE BY OTHER CARRIERS
IN ACCORDANCE WITH THEIR OWN TARIFFS FOR TRANSPORTATION OVER THEIR OWN
LINES.  THAT THE COMMISSION MAY HOLD THAT A CARRIER IN "SEPARATELY
ESTABLISHING" ITS RATES FOR A PORTION OF A THROUGH HAUL MUST NOT
PURPORT TO ALTER THE RATES ESTABLISHED BY CONNECTING LINES, SURELY IS A
PERMISSIBLE CONSTRUCTION OF SEC. 6(1). 

WHETHER CUT-BACKS EVEN AS APPLIED TO PREVIOUS TRANSPORTATION OVER THE
CARRIER'S OWN LINES ARE EVER PERMISSIBLE UNDER THE ACT, WE DO NOT
DECIDE; AND, LIKE THE COMMISSION, WE EXPRESS NO OPINION WHETHER THE
PARTICULAR CUT-BACKS EMPLOYED BY APPELLEE'S COMPETITORS ARE VALID.  WE
SIMPLY HOLD THAT, WHATEVER MAY BE THE APPELLEE'S RIGHTS IN APPROPRIATE
PROCEEDINGS, CF. ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 279 U.S.
768, THE APPELLEE MAY NOT REALIZE UPON THEM BY MEANS WHICH THE
COMMISSION HAS PROPERLY FOUND TO BE UNLAWFUL.  REVERSED. 

FN1  URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, 38 STAT. 208, 220,
28 U.S.C. SECS. 47, 47A; SEC. 238 OF THE JUDICIAL CODE AS AMENDED, 28
U.S.C. SEC. 345. 

FN2  248 I.C.C. 441; 46 F.SUPP.  204. 

FN3  SEC. 15(7) INTERSTATE COMMERCE ACT, 49 U.S.C. SEC. 15(7). 

FN4  238 I.C.C. 309. 

FN5  "THE NAMES OF THE SEVERAL CARRIERS WHICH ARE PARTIES TO ANY
JOINT TARIFF SHALL BE SPECIFIED THEREIN, AND EACH OF THE PARTIES
THERETO, OTHER THAN THE ONE FILING THE SAME, SHALL FILE WITH THE
COMMISSION SUCH EVIDENCE OF CONCURRENCE THEREIN OR ACCEPTANCE THEREOF
AS MAY BE REQUIRED OR APPROVED BY THE COMMISSION, AND WHERE SUCH
EVIDENCE OF CONCURRENCE OR ACCEPTANCE IS FILED IT SHALL NOT BE
NECESSARY FOR THE CARRIERS FILING THE SAME TO ALSO FILE COPIES OF THE
TARIFFS IN WHICH THEY ARE NAMED AS PARTIES."  49 U.S.C. SEC. 6(4). 

FN6  238 I.C.C. AT 315. 

FN7  "NO CARRIER, UNLESS OTHERWISE PROVIDED BY THIS CHAPTER, SHALL
ENGAGE OR PARTICIPATE IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY,
AS DEFINED IN THIS CHAPTER, UNLESS THE RATES, FARES, AND CHARGES UPON
WHICH THE SAME ARE TRANSPORTED BY SAID CARRIER HAVE BEEN FILED AND
PUBLISHED IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER; NOR SHALL
ANY CARRIER CHARGE OR DEMAND OR COLLECT OR RECEIVE A GREATER OR LESS OR
DIFFERENT COMPENSATION FOR SUCH TRANSPORTATION OF PASSENGERS OR
PROPERTY, OR FOR ANY SERVICE IN CONNECTION THEREWITH, BETWEEN THE
POINTS NAMED IN SUCH TARIFFS THAN THE RATES, FARES, AND CHARGES WHICH
ARE SPECIFIED IN THE TARIFF FILED AND IN EFFECT AT THE TIME; NOR SHALL
ANY CARRIER REFUND OR REMIT IN ANY MANNER OR BY ANY DEVICE ANY PORTION
OF THE RATES, FARES, AND CHARGES SO SPECIFIED, NOR EXTEND TO ANY
SHIPPER OR PERSON ANY PRIVILEGES OR FACILITIES IN THE TRANSPORTATION OF
PASSENGERS OR PROPERTY, EXCEPT SUCH AS ARE SPECIFIED IN SUCH TARIFFS." 
49 U.S.C. SEC. 6(7). 

FN8  "IT IS MADE THE DUTY OF ALL COMMON CARRIERS SUBJECT TO THE
PROVISIONS OF THIS CHAPTER TO ESTABLISH, OBSERVE, AND ENFORCE  ...
JUST AND REASONABLE REGULATIONS AND PRACTICES AFFECTING
CLASSIFICATIONS, RATES, OR TARIFFS,  ...  AND EVERY UNJUST AND
UNREASONABLE CLASSIFICATION, REGULATION, AND PRACTICE IS PROHIBITED AND
DECLARED TO BE UNLAWFUL."  49 U.S.C. SEC. 1(6). 

FN9  238 I.C.C. AT 317-318. 

FN10  248 I.C.C. AT 446.  FOR THE TEXTS OF SECS. 1(6), 6(4) AND (7),
SEE FOOTNOTES 8, 5 AND 7, SUPRA. 

FN11  FOR THE TEXT, SEE FOOTNOTE 5, SUPRA. 

FN12  FOR THE TEXTS, SEE FOOTNOTES 8 AND 7, SUPRA. 

FN13  SEC. 15(3), 49 U.S.C. SEC. 15(3). 

FN14  "IN ESTABLISHING ANY SUCH THROUGH ROUTE THE COMMISSION SHALL
NOT (EXCEPT AS PROVIDED IN SECTION 3 OF THIS TITLE, AND EXCEPT WHERE
ONE OF THE CARRIERS IS A WATER LINE) REQUIRE ANY CARRIER BY RAILROAD,
WITHOUT ITS CONSENT, TO EMBRACE IN SUCH ROUTE SUBSTANTIALLY LESS THAN
THE ENTIRE LENGTH OF ITS RAILROAD AND OF ANY INTERMEDIATE RAILROAD
OPERATED IN CONJUNCTION AND UNDER A COMMON MANAGEMENT OR CONTROL
THEREWITH, WHICH LIES BETWEEN THE TERMINI OF SUCH PROPOSED THROUGH
ROUTE, (A) UNLESS SUCH INCLUSION OF LINES WOULD MAKE THE THROUGH ROUTE
UNREASONABLY LONG AS COMPARED WITH ANOTHER PRACTICABLE THROUGH ROUTE
WHICH COULD OTHERWISE BE ESTABLISHED, OR (B) UNLESS THE COMMISSION
FINDS THAT THE THROUGH ROUTE PROPOSED TO BE ESTABLISHED IS NEEDED IN
ORDER TO PROVIDE ADEQUATE, AND MORE EFFICIENT OR MORE ECONOMIC,
TRANSPORTATION:  PROVIDED, HOWEVER, THAT IN PRESCRIBING THROUGH ROUTES
THE COMMISSION SHALL, SO FAR AS IS CONSISTENT WITH THE PUBLIC INTEREST,
AND SUBJECT TO THE FOREGOING LIMITATIONS IN CLAUSES (A) AND (B), GIVE
REASONABLE PREFERENCE TO THE CARRIER BY RAILROAD WHICH ORIGINATES THE
TRAFFIC.  NO THROUGH ROUTE AND JOINT RATES APPLICABLE THERETO SHALL BE
ESTABLISHED BY THE COMMISSION FOR THE PURPOSE OF ASSISTING ANY CARRIER
THAT WOULD PARTICIPATE THEREIN TO MEET ITS FINANCIAL NEEDS.  ...  "  49
U.S.C. SEC. 15(4). 

FN15  SEE, E.G., ABANDONMENT OF LINE BY MISSISSIPPI VALLEY CO. AND
ILLINOIS CENTRAL R. CO., 145 I.C.C. 289; ABANDONMENT OF BRANCH LINE BY
Y. & M.V.R. CO., 145 I.C.C. 393; HELM AND NORTHWESTERN RAILROAD CO.
ABANDONMENT, 170 I.C.C. 33; GULF & SHIP ISLAND R. CO. ABANDONMENT, 193
I.C.C. 749; Y. & M.V.R. CO. ABANDONMENT, 249 I.C.C. 561; Y. & M.V.R.
CO. ABANDONMENT, 249 I.C.C. 613.    FN16  238 I.C.C. AT 314. 

FN17  238 I.C.C. AT 313; 248 I.C.C. AT 445. 

FN18  248 I.C.C. AT 445. 

FN19  49 U.S.C. SEC. 6(1). 

MR. JUSTICE DOUGLAS, CONCURRING: 

COMMISSIONER SPLAWN DISSENTED FROM THE REPORT OF THE COMMISSION IN
THIS CASE.  248 I.C.C. 441, 446-447.  HE NOTED THAT RESPONDENT'S TARIFF
"IN NO WISE AFFECTS THE AMOUNT OF THE RATES PAID FOR THE INBOUND
SERVICE TO THE MILL POINT," ITS ONLY EFFECT BEING TO "REDUCE THE
OUTBOUND RATE AND THUS MAKE APPLICABLE THE SAME RATE AS APPLIES WHEN
THE OUTBOUND HAUL IS PERFORMED ENTIRELY BY THE TRUNK LINES."  IN HIS
VIEW, THE OUTBOUND TRAFFIC IS "FREE" TRAFFIC, AS THAT TERM WAS USED IN
ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 279 U.S. 768.  THAT IS TO
SAY, "IT IS TRAFFIC WHICH HAS PREVIOUSLY MOVED IN ON LOCAL OR JOINT
RATES TO THE MILLING POINT AND HAS THERE COME TO REST."  HENCE THE FACT
THAT RESPONDENT IS NOT A PARTY TO THE INBOUND RATES IS "WITHOUT LEGAL
SIGNIFICANCE."  COMMISSIONER SPLAWN CONCLUDED THAT THE DECISION OF THE
COMMISSION VIOLATED "ALL PRINCIPLES OF JUSTNESS AND FAIRNESS AS IT
PRECLUDES RESPONDENT FROM PARTICIPATING IN THE OUTBOUND MOVEMENT OR IN
THE THROUGH MOVEMENT OF THE TRAFFIC FROM COMMON ORIGINS ON AN EQUALITY
OF RATES WITH THE TRUNK LINES."  THE FACT THAT NO OTHER CARRIER IS A
PARTY TO RESPONDENT'S TARIFF CONTAINING THE CUT-BACK PROVISION AND THAT
RESPONDENT ABSORBS THE ALLOWANCES OUT OF ITS PROPORTION OF THE JOINT
OUTBOUND RATE WAS UNIMPORTANT IN HIS VIEW.  AS HE STATED, "THE
IDENTICAL FACTS ARE TRUE OF THE TARIFFS AND PRACTICE OF AT LEAST ONE OF
THE INTERVENING TRUNK LINES" - TARIFFS WHICH CONCEDEDLY CONSTITUTED THE
NECESSITY FOR RESPONDENT'S TARIFF.  MOREOVER, AS HE OBSERVED, "THERE
CAN BE NO DOUBT THAT THE PROVISION IS LAWFUL AS TO OUTBOUND TRAFFIC TO
POINTS REACHED BY RESPONDENT OVER ITS LINE."  THAT TRAFFIC WOULD SEEM
TO BE AS "LOCAL" AS THE TRANSIT PRIVILEGE WHICH THIS COURT HELD IN
CENTRAL R. CO. OF NEW JERSEY V. UNITED STATES, 257 U.S. 247, A CARRIER
MIGHT ESTABLISH FOR ITS INDIVIDUAL TARIFF, EVEN THOUGH THERE WAS A
JOINT THROUGH ROUTE WITH JOINT RATES.  SO I WOULD BE INCLINED TO
SUPPORT THE JUDGMENT OF THE COURT BELOW IN SETTING ASIDE THE ORDER OF
THE COMMISSION AT LEAST TO THE EXTENT THAT THE COURT ALLOWED THE TARIFF
TO APPLY ON OUTBOUND TRAFFIC TO POINTS ON RESPONDENT'S OWN LINE. 

BUT I AM VOTING FOR A REVERSAL OF THE JUDGMENT OF THE COURT BELOW IN
THE VIEW THAT THE CASE SHOULD BE RETURNED TO THE COMMISSION FOR
ADEQUATE FINDINGS. 

ALTHOUGH THERE ARE TWO REPORTS ON THIS PROBLEM - ONE BY THE FULL
COMMISSION AND ONE BY A DIVISION OF THE COMMISSION - THEY HAVE AN
OBSCURITY AND VAGUENESS WHICH TWO FULL ARGUMENTS BEFORE THIS COURT HAVE
NOT DISPELLED.  COMMISSIONER SPLAWN COMPLAINED WITHOUT SUCCESS OF THE
LACK OF FINDINGS UNDER SEC. 1(6), SEC. 6(1), AND SEC. 6(4).  BUT IF WE
PASS BY THOSE DEFICIENCIES AND CUT AND SEW THE MEAGER MATERIALS AT HAND
INTO THE PATTERN WHICH WE GUESS THE COMMISSION HAD IN MIND, THERE ARE
STILL IMPORTANT QUESTIONS LEFT UNANSWERED.  (1) THE TARIFFS CONTAINING
THE JOINT OUTBOUND RATES SPECIFICALLY AUTHORIZE "PRIVILEGES, CHARGES
AND RULES" TO BE COVERED BY SEPARATE TARIFFS EVEN THOUGH THE JOINT OR
THROUGH RATE IS AFFECTED, PROVIDED THE CARRIER GRANTING THE PRIVILEGE
DOES SO UPON ITS OWN RESPONSIBILITY AND AT ITS OWN COST.  WE ARE NOT
INFORMED WHY THAT PROVISION DOES NOT AUTHORIZE APPELLEE'S PROPOSED
TARIFF AT LEAST TO THE EXTENT THAT IT APPLIES TO OUTBOUND TRAFFIC TO
POINTS ON APPELLEE'S LINE.  (2) IF CONCURRENCE OF THE OTHER CARRIERS TO
APPELLEE'S TARIFF IS NECESSARY, WE ARE NOT TOLD WHY THE FOREGOING
PROVISION OF THE JOINT TARIFF IS NOT ADEQUATE.  (3) IN CASE THAT
PROVISION OF THE TARIFF COVERING JOINT RATES IS NOT APPLICABLE, THERE
IS ANOTHER PHASE OF THE PROBLEM WHICH IS IN THE DARK.  THE COMMISSION
DOES NOT SEEM TO DENY THAT THIS TRAFFIC WAS "FREE" TRAFFIC WITHIN THE
RULE OF ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, SUPRA.  IT WAS
MERELY CONCERNED WITH THE "FORM AND MANNER" OF THE TARIFF.  BUT WE ARE
NOT TOLD WHY APPELLEE'S TARIFF IS NOT WITHIN THE RULE OF CENTRAL R. CO.
OF NEW JERSEY V. UNITED STATES, SUPRA, SO FAR AS THE TARIFF SPECIFIES
THE RATE FROM MILLING POINTS TO DESTINATIONS ON APPELLEE'S LINE.  THE
RULE GOVERNING THE RIGHT OF CARRIERS TO INITIATE RATES HAS NOT
CHANGED.  UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294 U.S.
499, 506. 

MR. JUSTICE CARDOZO SPEAKING FOR THE COURT STATED IN THAT CASE, "WE
MUST KNOW WHAT A DECISION MEANS BEFORE THE DUTY BECOMES OURS TO SAY
WHETHER IT IS RIGHT OR WRONG."  294 U.S. P. 511.  THAT WAS SAID ABOUT
ANOTHER OBSCURE AND VAGUE REPORT OF THE INTERSTATE COMMERCE
COMMISSION.  WE SHOULD SAY THE SAME THING ABOUT THE PRESENT REPORT. 
THE QUESTIONS LEFT UNANSWERED BY THIS REPORT MAY BE SIMPLE ONES TO
EXPERTS.  BUT WE SHOULD HAVE THOSE ANSWERS BEFORE WE PUT THE IMPRIMATUR
OF THIS COURT ON THE COMMISSION'S ORDER. 

MR. JUSTICE BLACK, MR. JUSTICE MURPHY, AND MR. JUSTICE RUTLEDGE JOIN
IN THIS OPINION. 
..END :


















BOONE V. LIGHTNER, 319 U.S. 561 


NO. 698.  ARGUED MAY 3, 4, 1943.  - DECIDED JUNE 7, 1943.  - 222 N.C.
205, 22 S.E. 426, AFFIRMED. 


PROVIDING FOR STAYS IN COURT PROCEEDINGS INVOLVING PERSONS IN MILITARY
SERVICE, ADDRESSES TO THE DISCRETION OF THE COURT THE QUESTION WHETHER
"THE ABILITY OF  ...  THE DEFENDANT TO CONDUCT HIS DEFENSE IS NOT
MATERIALLY AFFECTED BY REASON OF HIS MILITARY SERVICE."  IN THE
CIRCUMSTANCES OF THIS CASE, DENIAL OF A STAY AT THE INSTANCE OF A
DEFENDANT IN MILITARY SERVICE WAS NOT AN ABUSE OF THAT DISCRETION.  PP.
565, 572. 

BOONE V. LIGHTNER ET AL. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

CERTIORARI, 318 U.S. 750, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST A DEFENDANT WHO DURING THE TIME OF THE 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL QUESTION IN THIS CASE IS WHETHER A STAY OF PROCEEDINGS
AGAINST A DEFENDANT IN MILITARY SERVICE HAS BEEN REFUSED UNDER
CIRCUMSTANCES WHICH DENIED RIGHTS GIVEN BY THE SOLDIERS' AND SAILORS'
CIVIL RELIEF ACT OF 1940.  THE CONTROVERSY IN WHICH HE WAS ENGAGED IS
FOR STATE COURTS TO SETTLE, AND WE DEAL WITH THE FACTS ONLY AS THEY
RELATE TO THIS FEDERAL QUESTION. 

THE PETITIONER BOONE WAS SUMMONED INTO A STATE COURT IN NORTH
CAROLINA IN AN ACTION TO REQUIRE HIM TO ACCOUNT AS TRUSTEE OF A FUND
FOR HIS MINOR DAUGHTER, TO REMOVE HIM AS TRUSTEE, TO SURCHARGE HIS
ACCOUNTS FOR LOSSES CAUSED BY ILLEGAL MANAGEMENT, AND TO OBTAIN
PERSONAL JUDGMENT FOR DEFICIENCY IN THE FUND. 

BOONE'S MOTHER-IN-LAW, BY WILL OF WHICH HE WAS EXECUTOR AND TRUSTEE,
CREATED A TRUST FUND FOR THE EDUCATION OF HER GRANDCHILDREN, INCLUDING
ONE CHILD OF BOONE'S.  SHORTLY AFTER HER DEATH, AND IN SEPTEMBER, 1938,
ANOTHER CHILD WAS BORN TO HIM.  SINCE THIS CHILD WAS UNPROVIDED FOR IN
THE WILL, THE FATHER-IN-LAW MADE ARRANGEMENTS WHICH UPON HIS DEATH PUT
INTO BOONE'S HANDS A FUND OF ABOUT $15,000.  IT IS CONCEDED THAT THE
FUND WAS A TRUST FOR THE BENEFIT OF THE DAUGHTER.  THERE WAS
CONTROVERSY WHETHER IT WAS GOVERNED, AS BOONE CLAIMED, BY A LETTER
SIGNED BY THE FATHER-IN-LAW WHICH PLACED NO RESTRICTION ON HIS
DISCRETION; OR, AS MRS. BOONE, WHO HAS BEEN SUSTAINED BY THE COURTS OF
NORTH CAROLINA, CLAIMED, BY THE SAME CONDITIONS AS THE TESTAMENTARY
TRUST SET UP BY HER MOTHER.  FOR OUR PURPOSES IT IS ENOUGH THAT IT WAS
ADMITTEDLY A TRUST AND THAT GROUNDS WERE ALLEGED SUFFICIENT TO MOVE THE
STATE COURT TO REQUIRE AN ACCOUNTING. 

THE SUMMONS AND COMPLAINT WERE SERVED ON BOONE PERSONALLY IN NORTH
CAROLINA ON JUNE 23, 1941.  HE WAS THEN IN MILITARY SERVICE OF THE
UNITED STATES AS A CAPTAIN STATIONED IN THE OFFICE OF THE UNDER
SECRETARY OF WAR IN WASHINGTON. 

BOONE FILED A VERIFIED ANSWER DENYING THE JURISDICTION OF THE COURT,
CLAIMING THAT ON JUNE 23, 1941, THE SAME DAY THE SUMMONS WAS SERVED, HE
CHANGED HIS "DOMICILE AND LEGAL RESIDENCE" TO WASHINGTON, D.C., AND HIS
DAUGHTER'S AS WELL.  HE ADMITTED RECEIPT OF THE FUND IN TRUST, ASSERTED
THE TRUST WAS GOVERNED BY THE LETTER REFERRED TO AND PLEADED THAT HE
"IS NOT BOUND TO REPORT TO ANY COURT."  HE DENIED ALL CHARGES OF
MISCONDUCT OF THE FUND, DENIED THAT THERE WERE GROUNDS FOR APPREHENSION
THAT THE FUNDS WERE UNSAFE, AND ASSERTED THAT "HE HAS EXERCISED AT ALL
TIMES GOOD FAITH IN CARING FOR THIS FUND."  HE ALSO STATED THAT "HE HAS
NOT DISSIPATED ONE PENNY OF THE FUND, NOR HAS HE MADE ANY WITHDRAWAL
FROM THE FUND SINCE THE DAY THE MONEY WAS TURNED OVER TO HIM."  HE
PLEADED AT LENGTH FACTS TO SUPPORT HIS CLAIM THAT HE WAS NO LONGER
DOMICILED IN NORTH CAROLINA AND TO SUPPORT HIS ALLEGATION THAT THE
TRUST WAS "A VOLUNTARY TRUST NOT SUBJECT TO THE JURISDICTION OF ANY
COURT OR RESTRICTED IN ANY WAY BY THE TERMS OF ANY WILL." 

ON FEBRUARY 2, 1942, THE CAUSE CAME ON FOR HEARING.  BOONE MOVED FOR
A CONTINUANCE TO THE 25TH OF MAY, 1942, HIS COUNSEL, ROY L. DEAL,
STATING THAT HE EXPECTED SOON TO BE CALLED INTO SERVICE AND WOULD BE
UNABLE TO TRY THE CASE, AND ASKING THE CONTINUANCE IN ORDER TO GIVE
DEFENDANT AMPLE TIME TO EMPLOY OTHER COUNSEL.  THE REQUEST WAS GRANTED,
AND THAT DATE PEREMPTORILY SET FOR THE TRIAL.  THE COURT FORBADE
TRANSFER OF SECURITIES CONSTITUTING THE TRUST AND REQUIRED THAT ON THE
TRIAL DATE THEY AND ANY FUNDS OF THE TRUST BE TURNED OVER TO THE CLERK
OF THE COURT TO ABIDE FURTHER ORDERS.  ITS ORDER ADMONISHED THAT THE
COURT WOULD AT THE EARLIEST PRACTICAL DATE ASCERTAIN THE STATUS OF THE
TRUST FUND AND THAT THE PRESENCE OF BOONE HIMSELF AT THE TRIAL "IS
HIGHLY DESIRABLE," BUT LEFT TO THE DISCRETION OF BOONE AND HIS COUNSEL
WHETHER IT WAS NECESSARY.  IN ORDER, HOWEVER, TO ADVISE DEFENDANT BOONE
AND HIS SUPERIOR OFFICERS OF THE IMPORTANCE OF THE LITIGATION, THE
COURT DIRECTED THAT A CERTIFIED COPY OF THE ORDER BE SENT TO THE
ADJUTANT GENERAL OF THE UNITED STATES ARMY AT WASHINGTON. 

WHEN THE TRIAL DAY CAME, BOONE INVOKED THE SOLDIERS' AND SAILORS'
CIVIL RELIEF ACT OF 1940, AND DEMANDED THAT THE TRIAL BE CONTINUED
UNTIL AFTER THE TERMINATION OF HIS SERVICE IN THE ARMY OR UNTIL "SUCH
TIME AS HE CAN PROPERLY CONDUCT HIS DEFENSE."  AT THIS TIME THERE WERE
BEFORE THE TRIAL COURT NOT ONLY THE PLEADINGS AND THE AFFIDAVITS
SUBMITTED BY BOONE AND HIS COUNSEL BUT ALSO CERTAIN DEPOSITIONS WHICH
BOONE HAD MADE AND PROCURED AND WHICH HAD BEEN RETURNED TO THE COURT,
AND ALSO BOONE'S OWN STATEMENT OF TRANSACTIONS WHICH ACCOMPANIED
CERTAIN SECURITIES AND FUNDS WHICH HE TURNED OVER TO THE CLERK OF THE
COURT.  BOONE WAS NOT PRESENT, BUT COUNSEL APPEARED FOR HIM TO MOVE FOR
A FURTHER CONTINUANCE UNDER THE SOLDIERS' AND SAILORS' CIVIL RELIEF
ACT.  THIS MOTION WAS DENIED, COUNSEL WHO HAD PRESENTED THE MOTION
WITHDREW FROM THE CASE, AND THE TRIAL PROCEEDED.  THE VERDICT OF THE
JURY WENT AGAINST BOONE; AND JUDGMENT WAS ENTERED THAT THE TRUST WAS
GOVERNED BY THE TERMS OF THE WILL, THAT BOONE HAD BEEN GUILTY OF
SERIOUS MISCONDUCT OF THE TRUST FUND, AND THAT HE BE HELD PERSONALLY
LIABLE FOR THE CONSEQUENT LOSS TO THE TRUST FUND OF MORE THAN $11,000,
AND REMOVED AS TRUSTEE. 

BOONE THEN APPEALED TO THE SUPREME COURT OF NORTH CAROLINA, ON THE
MERITS AS WELL AS ON DENIAL OF THE CONTINUANCE, AND THAT COURT
AFFIRMED.  222 N.C. 205, 22 S.E.2D 426.  AS THE DECISION BELOW
PRESENTED AN IMPORTANT QUESTION OF CONSTRUCTION OF THE ACT, WE GRANTED
CERTIORARI. 

THE SECTION OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940
PRINCIPALLY INVOKED IS SEC. 201,  FN1  WHICH READS: 

"AT ANY STAGE THEREOF ANY ACTION OR PROCEEDING IN ANY COURT IN WHICH
A PERSON IN MILITARY SERVICE IS INVOLVED, EITHER AS PLAINTIFF OR
DEFENDANT, DURING THE PERIOD OF SUCH SERVICE OR WITHIN SIXTY DAYS
THEREAFTER MAY, IN THE DISCRETION OF THE COURT IN WHICH IT IS PENDING,
ON ITS OWN MOTION, AND SHALL, ON APPLICATION TO IT BY SUCH PERSON OR
SOME PERSON ON HIS BEHALF, BE STAYED AS PROVIDED IN THIS ACT, UNLESS,
IN THE OPINION OF THE COURT, THE ABILITY OF PLAINTIFF TO PROSECUTE THE
ACTION OR THE DEFENDANT TO CONDUCT HIS DEFENSE IS NOT MATERIALLY
AFFECTED BY REASON OF HIS MILITARY SERVICE." 

THE POSITIONS URGED BY PETITIONER COME TO THESE:  FIRST, THAT
DEFENDANT'S MILITARY SERVICE IN WASHINGTON RENDERED A CONTINUANCE
MANDATORY; SECOND, IF NOT MANDATORY, THAT THE BURDEN OF SHOWING THAT HE
COULD ATTEND OR WOULD NOT BE PREJUDICED BY HIS ABSENCE WAS NOT ON HIM,
BUT ON THOSE WHO WOULD FORCE THE PROCEEDINGS; THIRD, THAT THE COURT DID
NOT MAKE THE FINDING REQUIRED BY THE ACT FOR DENIAL OF A STAY; AND
LAST, THAT IN ANY VIEW OF THE LAW THE TRIAL JUDGE ABUSED HIS DISCRETION
IN THIS CASE.  THE PETITION RAISES OTHER QUESTIONS, INCLUDING THE
CONSTITUTIONAL ONE AS TO WHETHER HE HAS BEEN DENIED DUE PROCESS OF LAW,
WHICH WE DO NOT DISCUSS BECAUSE IN THE LIGHT OF THE FACTS OF THE CASE
THEY ARE FRIVOLOUS. 

1.  THE ACT CANNOT BE CONSTRUED TO REQUIRE CONTINUANCE ON MERE
SHOWING THAT THE DEFENDANT WAS IN WASHINGTON IN THE MILITARY SERVICE. 
CANONS OF STATUTORY CONSTRUCTION ADMONISH US THAT WE SHOULD NOT
NEEDLESSLY RENDER AS MEANINGLESS THE LANGUAGE WHICH, AFTER AUTHORIZING
STAYS, SAYS "UNLESS, IN THE OPINION OF THE COURT, THE ABILITY OF
PLAINTIFF TO PROSECUTE THE ACTION OR THE DEFENDANT TO CONDUCT HIS
DEFENSE IS NOT MATERIALLY AFFECTED BY REASON OF HIS MILITARY SERVICE." 

THE ACT OF 1940 WAS A SUBSTANTIAL REENACTMENT OF THAT OF 1918.  THE
LEGISLATIVE HISTORY OF ITS ANTECEDENT SHOWS THAT THIS CLAUSE WAS
DELIBERATELY CHOSEN AND THAT JUDICIAL DISCRETION THEREBY CONFERRED ON
THE TRIAL COURT INSTEAD OF RIGID AND UNDISCRIMINATING SUSPENSION OF
CIVIL PROCEEDINGS WAS THE VERY HEART OF THE POLICY OF THE ACT.  FN2
WHILE THIS COURT HAD NO OCCASION TO SPEAK ON THE SUBJECT, THE ACT WAS
GENERALLY CONSTRUED CONSISTENTLY WITH THIS POLICY.  FN3 

REENACTED AGAINST THIS BACKGROUND WITHOUT RECONSIDERATION OF THE
QUESTION BEYOND A STATEMENT IN THE SENATE COMMITTEE REPORT THAT "THERE
ARE ADEQUATE SAFEGUARDS INCORPORATED IN THE BILL TO PREVENT ANY PERSON
FROM TAKING UNDUE ADVANTAGE" OF ITS PROVISIONS,  FN4  WE ARE UNABLE TO
IGNORE OR STERILIZE THE CLAUSE WHICH PLAINLY VESTS JUDICIAL DISCRETION
IN THE TRIAL COURT. 

2.  THE ACT MAKES NO EXPRESS PROVISION AS TO WHO MUST CARRY THE
BURDEN OF SHOWING THAT A PARTY WILL OR WILL NOT BE PREJUDICED, IN
PURSUANCE NO DOUBT OF ITS POLICY OF MAKING THE LAW FLEXIBLE TO MEET THE
GREAT VARIETY OF SITUATIONS NO LEGISLATOR AND NO COURT IS WISE ENOUGH
TO FORESEE.  WE, TOO, REFRAIN FROM DECLARING ANY RIGID DOCTRINE OF
BURDEN OF PROOF IN THIS MATTER, BELIEVING THAT COURTS CALLED UPON TO
USE DISCRETION WILL USUALLY HAVE ENOUGH SOUND SENSE TO KNOW FROM WHAT
DIRECTION THEIR INFORMATION SHOULD BE EXPECTED TO COME.  ONE CASE MAY
TURN ON AN ISSUE OF FACT AS TO WHICH THE PARTY IS AN IMPORTANT WITNESS,
WHERE IT ONLY APPEARS THAT HE IS IN SERVICE AT A REMOTE PLACE OR AT A
PLACE UNKNOWN.  THE NEXT MAY INVOLVE AN ACCIDENT CAUSED BY ONE OF HIS
FAMILY USING HIS CAR WITH HIS PERMISSION, WHICH HE DID NOT WITNESS, AND
AS TO WHICH HE IS FULLY COVERED BY INSURANCE.  SUCH A NOMINAL
DEFENDANT'S ABSENCE IN MILITARY SERVICE IN WASHINGTON MIGHT BE URGED BY
THE INSURANCE COMPANY, THE REAL DEFENDANT, AS GROUND FOR DEFERRING
TRIAL UNTIL AFTER THE WAR.  TO SAY THAT THE MERE FACT OF A PARTY'S
MILITARY SERVICE HAS THE SAME SIGNIFICANCE ON BURDEN OF PERSUASION IN
THE TWO CONTEXTS WOULD BE TO PUT INTO THE ACT THROUGH A BURDEN OF PROOF
THEORY THE RIGIDITY AND LACK OF DISCRIMINATING APPLICATION WHICH
CONGRESS SOUGHT TO REMOVE BY MAKING STAYS DISCRETIONARY.  WE THINK THE
ULTIMATE DISCRETION INCLUDES A DISCRETION AS TO WHOM THE COURT MAY ASK
TO COME FORWARD WITH FACTS NEEDFUL TO A FAIR JUDGMENT. 

IN THE PRESENT CASE, WHOEVER MIGHT HAVE HAD THE BURDEN ORIGINALLY,
THE CONTINUANCE WAS FINALLY DENIED UPON A RECORD WHICH DISCLOSED THE
FACTS SO FAR AS EITHER PARTY SAW FIT TO DO SO.  THE DEFENDANT AND HIS
COUNSEL SUBMITTED AFFIDAVITS AND THE DEPOSITIONS AND ACCOUNTS BEFORE
THE COURT REVEALED FACTS RELEVANT TO THE ISSUE. 

WHETHER, IF THE COURT KNEW ONLY THE EXISTENCE OF THIS COMPLICATED
CONTROVERSY AND THAT THE DEFENDANT WAS ABSENT IN MILITARY SERVICE, IT
COULD HAVE CAST UPON THE DEFENDANT THE BURDEN OF SHOWING THAT THE
LITIGATION COULD NOT GO AHEAD WITHOUT PREJUDICE TO HIM, IS NOT BEFORE
US. THE COURT MADE NO SUCH RULING.  THE DEFENDANT APPEARED, HE PLEADED
HIS DEFENSE, HE TOOK DEPOSITIONS SHOWING FULLY WHAT HAD HAPPENED TO THE
FUND, AND HE SUPPLIED HIS OWN AFFIDAVIT SHOWING WHERE HE WAS AND WHAT
HE WAS DOING.  REGARDLESS OF WHETHER DEFENDANT WAS UNDER A DUTY TO MAKE
A DISCLOSURE OF HIS SITUATION, ONCE HE UNDERTOOK TO DO SO, THE
SIGNIFICANCE ALIKE OF WHAT HIS AFFIDAVIT SAID AND OF WHAT IT OMITTED
WAS TO BE JUDGED BY ORDINARY TESTS.  ONE OF THESE IS THAT "ALL EVIDENCE
IS TO BE WEIGHED ACCORDING TO THE PROOF WHICH IT WAS IN THE POWER OF
ONE SIDE TO HAVE PRODUCED AND IN THE POWER OF THE OTHER SIDE TO HAVE
CONTRADICTED."  COOPER V. DASHER, 290 U.S. 106, 109.  THE TRIAL COURT
AND THE SUPREME COURT OF NORTH CAROLINA DID JUST THIS.  THEY DID NOT
DENY HIS STAY BECAUSE HE FAILED TO MEET THEIR IDEAS OF BURDEN; THEY
WEIGHED THE EVIDENCE HE OFFERED AND FOUND ITS CONCLUSIONS DISCREDITED
BY ITS AVOIDANCE OF SUPPORTING FACTS WITHIN HIS KNOWLEDGE AND NOT
WITHIN THAT OF HIS ADVERSARY.  THAT IS NOT A RULING ON BURDEN OF
PROOF.  FINDING THAT THE COURTS BELOW HAVE PROCEEDED UPON NO
MISAPPREHENSION OF THE LAW, WE TURN TO THEIR DEALING WITH THE FACTS OF
THE PARTICULAR CASE. 

3.  SOME QUESTION IS RAISED AS TO WHETHER THE FINDINGS OF THE TRIAL
COURT MEET THE REQUIREMENTS OF THE ACT.  IN THE ORDER DENYING THE
CONTINUANCE IT FOUND AS A FACT THAT "THE DEFENDANT IN THIS CAUSE IS
DELIBERATELY AND WILFULLY ATTEMPTING TO EVADE AN ULTIMATE DETERMINATION
OF THE ISSUES INVOLVED IN THE LITIGATION ENTITLED AS ABOVE, AND IS
EXERCISING HIS ASSUMED RIGHT UNDER THE ACT REFERRED TO ABOVE TO AVOID
SUCH DETERMINATION."  IT ALSO FOUND THE DEFENDANT "IS NOT UPON THE
MOTION FOR CONTINUANCE ACTING IN GOOD FAITH."  IN THE FINAL JUDGMENT
THE COURT FOUND AS A FACT "THAT THE DEFENDANT HAS HAD AMPLE TIME AND
OPPORTUNITY TO PROPERLY PREPARE HIS DEFENSE IN THIS CASE AND THAT HIS
MILITARY SERVICE HAS NOT PREVENTED HIM FROM DOING THIS."  IT FOUND THAT
"DEFENDANT HAD FULL OPPORTUNITY TO PREPARE AND PUT IN HIS DEFENSE IF HE
HAD ONE," AND THAT "IT IS APPARENT THAT HE HAS ONLY SOUGHT TO USE THE
PROVISIONS OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT AS A SHIELD
FOR HIS WRONG DOING, AND THIS COURT, WHO ONCE WORE A U.S. UNIFORM WITH
PRIDE, DOES NOT INTEND FOR THIS TO BE DONE." 

OF COURSE THIS IS NOT A FINDING IN THE WORDS OF THE STATUTE THAT THE
ABILITY OF THE DEFENDANT "TO CONDUCT HIS DEFENSE IS NOT MATERIALLY
AFFECTED BY REASON OF HIS MILITARY SERVICE," BUT THERE IS NO DOUBT THAT
IT WAS INTENDED TO BE IN SUBSTANCE THE EQUIVALENT.  IT WAS SO TREATED
BY THE SUPREME COURT OF NORTH CAROLINA AND TO SEND THE CASE BACK FOR
FURTHER FINDINGS SEEMS UNWARRANTED.  THE ACT DOES NOT EXPRESSLY REQUIRE
FINDINGS.  IT IS ONE INTENDED TO APPLY TO COURTS NOT OF RECORD AS WELL
AS THOSE OF RECORD, AND IT REQUIRES ONLY THAT THE COURT BE OF OPINION
THAT ABILITY TO DEFEND IS NOT MATERIALLY AFFECTED BY MILITARY SERVICE. 
WE ACCEPT THE FINDINGS AS SUFFICIENTLY EVIDENCING THE OPINION OF THE
COURT TO THAT EFFECT.    4.  THE FINAL QUESTION IS WHETHER THE EVIDENCE
SUFFICIENTLY SUPPORTS THE OPINION OR WHETHER THE ORDER CONSTITUTES AN
ABUSE OF DISCRETION. 

WE THINK THE OPINION OF THE COURT THAT BOONE'S MILITARY SERVICE DID
NOT PREVENT HIM FROM BEING PRESENT AND DOING WHATEVER COULD HAVE BEEN
DONE BY WAY OF DEFENSE FINDS AMPLE SUPPORT IN THE EVIDENCE.  BOONE HAD
BEEN ABLE TO GET AWAY FROM WASHINGTON TO GO TO NEW YORK FOR THE TAKING
OF DEPOSITIONS ON TWO SEPARATE OCCASIONS.  HE HAD LONG NOTICE OF THE
TRIAL DATE AND THE COURT HAD PLACED IN THE FILES OF HIS DEPARTMENT ITS
ORDER SHOWING THE DESIRABILITY OF HIS PRESENCE AT THAT TIME.  BOONE,
BEING A LAWYER AND PRESUMABLY KNOWING THE GRAVITY OF THE ACCUSATIONS
AGAINST HIM, MIGHT BE EXPECTED TO MAKE SOME MOVE TO GET LEAVE TO BE
PRESENT.  IF IT WERE DENIED, HE MIGHT BE EXPECTED TO EXPOSE EVERY
CIRCUMSTANCE OF HIS EFFORT TO THE COURT IN HIS PLEA FOR CONTINUANCE. 
BOONE'S AFFIDAVIT, AFTER RECITING THAT HE WAS ASSIGNED TO THE
INTERNATIONAL DIVISION, HEADQUARTERS, SERVICES OF SUPPLY, WASHINGTON,
D.C., SAYS "THE WORK IN SAID DIVISION IS VERY HEAVY, AND FULL TIME AND
SOME EXTRA TIME ARE REQUIRED OF ALL OFFICERS IN SAID DIVISION,
INCLUDING THE DEFENDANT.  PRIOR TO THE DECLARATION OF WAR ON DEC. 8,
1941 THE WORK IN THIS DIVISION WAS VERY HEAVY, BUT SINCE THE
DECLARATION OF WAR THE VOLUME OF WORK HAS BEEN GREATLY INCREASED.  NO
LEAVES WHATEVER HAVE BEEN GRANTED, EXCEPT IN CASES OF SERIOUS
EMERGENCY." 

MOST LAWYERS TRAINED IN THE EQUITY TRADITION OF TRUSTEE FIDELITY
WOULD REGARD A TRIAL OF THIS KIND AS A SERIOUS EMERGENCY.  DID HE APPLY
FOR A LEAVE AT ALL?  THE AFFIDAVIT PRETTY CLEARLY IMPLIED THAT HE HAD
NOT.  WE THINK THE COURT HAD AMPLE GROUNDS FOR THE OPINION THAT BOONE
MADE NO EFFORT TO ATTEND TO DUTIES THAT SHOULD WEIGH HEAVILY UPON THE
HONOR OF A LAWYER-TRUSTEE. 

THERE WAS LIKEWISE SUPPORT FOR THE OPINION THAT THE FAILURE TO BE
REPRESENTED BY COUNSEL DID NOT RESULT FROM BOONE'S MILITARY SERVICE. 
ON FEBRUARY 2, 1942, THE COURT GRANTED HIS REQUEST FOR A CONTINUANCE
AND SET THE CASE FOR TRIAL ON MAY 25, 1942.  IT WAS STATED TO THE COURT
THAT COUNSEL THEN ACTING FOR HIM WAS EXPECTING TO BE CALLED IMMEDIATELY
INTO MILITARY SERVICE, AND IT WOULD BE NECESSARY FOR DEFENDANT TO
PROCURE ADDITIONAL COUNSEL.  NEVERTHELESS, WHEN THE TRIAL DATE ARRIVED,
THE FACT THAT THIS COUNSEL HAD GONE INTO SERVICE ON MAY 13, 1942, WAS
URGED AS A REASON FOR FURTHER POSTPONEMENT.  NO SHOWING WHATEVER WAS
MADE AS TO ANY EFFORT TO OBTAIN OTHER COUNSEL IN THE LONG INTERVAL
ALLOWED BY THE COURT FOR THE PURPOSE.  THIS COUNSEL WAS ALSO STATIONED
AT WASHINGTON AND SAID HE "WOULD NOT ASSUME TO ASK FOR LEAVE AT THE
PRESENT TIME, SO SOON AFTER HAVING REPORTED FOR DUTY." 

ON THE TRIAL DATE DEFENDANT WAS NEVERTHELESS REPRESENTED IN COURT BY
LOCAL COUNSEL.  THAT COUNSEL HOWEVER WAS CONSULTED ONLY THREE OR FOUR
DAYS BEFORE THE TRIAL DATE AND WAS EMPLOYED FOR THE SOLE PURPOSE OF
MAKING THE MOTION FOR CONTINUANCE, AND WHEN THE COURT RULED ON IT HE
WITHDREW AND DECLINED TO PROCEED FURTHER.  THE DEFENDANT'S ACCOUNTS
PRESENTED TO THE TRIAL JUDGE SHOWED DISBURSEMENTS SINCE THE BEGINNING
OF THE ACTION AND BEFORE TRIAL FOR THE FOLLOWING MATTERS, AMONG OTHERS,
IN CONNECTION WITH THIS CASE:  ON AUGUST 15, 1941, DEFENDANT'S
DEPOSITION WAS TAKEN AT WASHINGTON, D.C.  THIS ENTAILED A REPORTER'S
FEE OF $66.00 AND A FEE OF $248.88 PAID A DETROIT ATTORNEY FOR
APPEARING AT THE PROCEEDING.  ON NOVEMBER 3 AND 5, 1941, DEPOSITIONS
WERE TAKEN IN NEW YORK CITY WITH THE DEFENDANT PRESENT.  THESE INVOLVED
A COURT REPORTER'S FEE OF $32.25, AND FEES IN THE AMOUNT OF $375.00 FOR
THE DETROIT ATTORNEY AND NEW YORK COUNSEL OBTAINED TO ASSIST HIM.  THIS
ITEM CARRIED A NOTATION THAT IT DID NOT "INCLUDE SERVICES RENDERED IN
THE TAKING OF DEPOSITIONS IN OTHER CASES ON SAME DATE."  FROM AUGUST 4,
1941, TO JANUARY 26, 1942, DEAL, THE ATTORNEY WHO HAD REPRESENTED
DEFENDANT BEFORE WITHDRAWING TO ACCEPT A COMMISSION IN WASHINGTON,
RECEIVED $218.00 FOR HIS SERVICES IN REPRESENTING DEFENDANT IN THE
CASE.  TWO DAYS AFTER JUDGMENT, ANOTHER LAWYER FROM THE FIRM OF COUNSEL
WHO HAD WITHDRAWN AFTER MAKING THE MOTION OF MAY 25 APPEARED AND MOVED
TO SET THE VERDICT ASIDE AND TOOK AN APPEAL, LATER FILING EXTENSIVE
ASSIGNMENTS OF ERROR.  COUNSEL WHO HAD WITHDRAWN FROM THE TRIAL ARGUED
THE APPEAL IN THE SUPREME COURT OF NORTH CAROLINA. 

AT ALL TIMES SINCE THE ACTION BEGAN DEFENDANT HAS ALSO BEEN
REPRESENTED BY COUNSEL FROM DETROIT, MICHIGAN.  HIS INABILITY TO APPEAR
ON THE TRIAL DATE WAS EXPLAINED ON THE GROUND THAT HE WAS "DEFINITELY
ENGAGED AT THE PRESENT TIME IN THE TRIAL OF CASES AT DETROIT WHICH WILL
REQUIRE HIS PRESENCE IN COURT THERE FOR APPROXIMATELY THIRTY DAYS."  NO
AFFIDAVIT FROM THIS COUNSEL WAS PRODUCED, AND NO EXPLANATION IS MADE AS
TO HOW IT CAME THAT OTHER "CASES" WERE GIVEN PRIORITY OVER THIS IN VIEW
OF THE LONG NOTICE OF THE TRIAL DATE AND ITS IMPORTANCE TO THE CLIENT. 

IN THIS COURT, BOONE IS REPRESENTED BY HIS DETROIT COUNSEL AND BY
DEAL, THE LAWYER WHO WITHDREW FROM THE CASE TO ACCEPT A COMMISSION IN
WASHINGTON.  BESIDES THESE, THERE ALSO APPEAR FOUR OTHER LAWYERS, NONE
OF WHOM ARE INCLUDED IN THE FIVE WHO HAVE REPRESENTED HIM AT PREVIOUS
STAGES IN THE CASE. 

IN ADDITION TO THE FACTS PRESENTED TO THE TRIAL COURT WHICH WE HAVE
RECITED, THE TRIAL COURT APPARENTLY CONSIDERED MATTERS NOT OF RECORD IN
THIS CASE, BUT OF WHICH HE TOOK JUDICIAL NOTICE.  HE RECITES THAT "THE
MOTION TO CONTINUE IS MADE AFTER THE DEFENDANT'S REFUSAL IN ONE OR MORE
INSTANCES ARISING OUT OF LITIGATION RESPECTING THE SUBJECT MATTER AND
PERSONNEL INVOLVED IN THIS ACTION TO APPEAR IN THE COURTS OF NORTH
CAROLINA, EVEN ON CITATION FOR CONTEMPT."  WE KNOW NOTHING OF THESE
EVENTS AND DISREGARD THIS GROUND OF THE COURT'S ACTION. 

THE COURT WAS DEALING NOT ONLY WITH AN INDIVIDUAL BUT WITH A TRUSTEE,
ONE CHARGED WITH DEFAULT IN HIS DUTY, AND WITH A FUND WHICH WAS SAID TO
BE IN JEOPARDY.  DEFENDANT IN SPITE OF HIS MILITARY SERVICE IN
WASHINGTON WAS CONTINUING TO ADMINISTER THE FUND.  THE DEFENDANT WAS A
MEMBER OF THE BAR, AND THE CHARGES STRUCK AT HIS HONOR AS WELL AS AT
HIS JUDGMENT.  INSTEAD OF SEEKING THE FIRST COMPETENT FORUM AND THE
EARLIEST POSSIBLE DAY TO LAY HIS ACCOUNTS OUT FOR VINDICATION, HE
SOUGHT TO ESCAPE THE FORUM AND POSTPONE THE DAY.  HE WAS BOTH PRESENT
AND REPRESENTED BY COUNSEL WHEN DEPOSITIONS WERE TAKEN WHICH ESTABLISH
HIS SPECULATION WITH THE TRUST FUNDS IN HIS PERSONAL MARGIN ACCOUNT. 
WE THINK THE RECORD AMPLY SUPPORTS THE CONCLUSION OF THE TRIAL JUDGE
THAT THE CLAIM THAT MILITARY SERVICE WOULD PREJUDICE THE CONDUCT OF HIS
DEFENSE, WAS GROUNDLESS, AND THAT THE ABSENCE OF HIMSELF AND ALL OF HIS
NUMEROUS AND NOT UNCOMPENSATED COUNSEL ON THE DAY OF JUDGMENT WAS
DICTATED WHOLLY BY LITIGIOUS STRATEGY. 

THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT IS ALWAYS TO BE LIBERALLY
CONSTRUED TO PROTECT THOSE WHO HAVE BEEN OBLIGED TO DROP THEIR OWN
AFFAIRS TO TAKE UP THE BURDENS OF THE NATION.  THE DISCRETION THAT IS
VESTED IN TRIAL COURTS TO THAT END IS NOT TO BE WITHHELD ON NICE
CALCULATIONS AS TO WHETHER PREJUDICE MAY RESULT FROM ABSENCE, OR
ABSENCE RESULT FROM THE SERVICE.  ABSENCE WHEN ONE'S RIGHTS OR
LIABILITIES ARE BEING ADJUDGED IS USUALLY PRIMA FACIE PREJUDICIAL.  BUT
IN SOME FEW CASES ABSENCE MAY BE A POLICY, INSTEAD OF THE RESULT OF
MILITARY SERVICE, AND DISCRETION IS VESTED IN THE COURTS TO SEE THAT
THE IMMUNITIES OF THE ACT ARE NOT PUT TO SUCH UNWORTHY USE.  AFFIRMED. 

FN1  54 STAT. 1178, 1181, 50 U.S.C. APP. SEC. 521. 

WE EXPRESS NO OPINION ON THE QUESTION WHETHER BOONE COULD HAVE THE
JUDGMENT OPENED UPON PROPER APPLICATION UNDER SEC. 200(4), 50 U.S.C.
APP. SEC. 520(4). 

FN2  AS ORIGINALLY PROPOSED, THE SOLDIERS' AND SAILORS' CIVIL RELIEF
BILL, S. 2859, 65TH CONG., 1ST SESS., PROVIDED IN SEC. 6 THAT: 

"AT ANY STAGE THEREOF ANY ACTION OR PROCEEDING COMMENCED IN ANY COURT
AGAINST A PERSON IN MILITARY SERVICE MAY, IN THE DISCRETION OF THE
COURT IN WHICH IT IS PENDING, ON ITS OWN MOTION, AND SHALL, ON
APPLICATION TO IT BY SUCH PERSON OR SOME PERSON ON HIS BEHALF, BE
STAYED AS PROVIDED IN THIS ACT, UNLESS, IN THE OPINION OF THE COURT,
THE DEFENDANT IS NOT EMBARRASSED BY REASON OF HIS MILITARY SERVICE." 

ACCOMPANYING "NOTES AS TO THE PROVISIONS OF THE BILL" STATED THAT A
"SWEEPING EXEMPTION" SUCH AS THAT PROVIDED BY MOST STATES IN CIVIL WAR
DAYS, WAS "TOO BROAD, FOR THERE ARE MANY CASES WHERE THE FINANCIAL
ABILITY OF SOLDIERS AND SAILORS TO MEET OBLIGATIONS IN SOME WAY IS NOT
MATERIALLY IMPAIRED BY THEIR ENTRANCE INTO SERVICE."  HEARINGS AND
MEMORANDA BEFORE SENATE JUDICIARY COMMITTEE ON S. 2859 AND H.R. 6361,
65TH CONG., 1ST AND 2D SESS., P. 27. 

MAJOR JOHN H. WIGMORE, ONE OF THE DRAFTERS OF THE BILL, STATED AT THE
SENATE HEARINGS, THAT "A UNIVERSAL STAY AGAINST SOLDIERS IS WASTEFUL,
BECAUSE HUNDREDS OF THEM ARE MEN OF AFFAIRS AND MEN OF ASSETS, AND THEY
HAVE AGENTS BACK HERE LOOKING AFTER THEIR AFFAIRS.  THERE IS NO EARTHLY
REASON WHY THE COURT PROCEEDINGS SHOULD STAY AGAINST THEM.  IT IS THE
SMALL MAN, OR PERHAPS I SHOULD SAY THE HUMBLE MAN, WHO HAS JUST HIMSELF
AND NO AGENT AND NO OUTSIDE ASSETS, THAT WE DO NOT WANT TO FORGET.  HE
IS THE MAN WE ARE THINKING OF.  THESE OTHER PEOPLE CAN TAKE CARE OF
THEMSELVES, AND THE COURT WOULD SAY TO THEM, 'NO; YOUR AFFAIR IS A
GOING CONCERN; GO AHEAD WITH THE LAWSUIT.  YOU HAVE A LAWYER, YOU HAVE
AN AGENT, YOU HAVE A CORPORATION MANAGER, AND OTHER THINGS.'"  ID. AT
P. 97. 

AS REPORTED BY THE HOUSE JUDICIARY COMMITTEE, H.R. 6361, 65TH CONG.,
1ST SESS., PROVIDED IN SEC. 201: 

"THAT AT ANY STAGE THEREOF ANY ACTION OR PROCEEDING COMMENCED IN ANY
COURT AGAINST A PERSON IN MILITARY SERVICE DURING THE PERIOD OF SUCH
SERVICE OR WITHIN 60 DAYS THEREAFTER MAY, IN THE DISCRETION OF THE
COURT IN WHICH IT IS PENDING, ON ITS OWN MOTION, AND SHALL, ON
APPLICATION TO IT BY SUCH PERSON OR SOME PERSON ON HIS BEHALF, BE
STAYED AS PROVIDED IN THIS ACT, UNLESS, IN THE OPINION OF THE COURT,
THE ABILITY OF THE DEFENDANT TO COMPLY WITH THE JUDGMENT OR ORDER
SOUGHT IS NOT MATERIALLY AFFECTED BY REASON OF HIS MILITARY SERVICE." 

THE HOUSE REPORT ON THIS BILL, NO. 181, 65TH CONG., 1ST SESS.,
STATED: 

"INSTEAD OF A RIGID SUSPENSION OF ALL ACTIONS AGAINST A SOLDIER, A
RESTRICTION UPON SUITS IS PLACED ONLY WHERE A COURT IS SATISFIED THAT
THE ABSENCE OF THE DEFENDANT IN MILITARY SERVICE HAS MATERIALLY
IMPAIRED HIS ABILITY TO MEET THAT PARTICULAR OBLIGATION.  MOST OF THE
ACTIONS SOUGHT TO BE BROUGHT AGAINST SOLDIERS WILL BE FOR SMALL AMOUNTS
AND WILL THUS BE IN A LOCAL COURT WHERE THE JUDGE, IF HE DOES NOT
ALREADY KNOW, WILL BE IN A FAVORABLE POSITION TO LEARN WHETHER OR NOT
THE DEFENDANT WHO SEEKS THE BENEFIT OF THE STATUTE HAS REALLY BEEN
PREJUDICED BY HIS MILITARY SERVICE.  THOUGH NOT IN MILITARY SERVICE, HE
MAY HAVE PROPERTY FROM WHICH THE INCOME CONTINUES TO COME IN
IRRESPECTIVE OF HIS PRESENCE; PERHAPS HE MAY BE SOME NE'ER-DO-WELL WHO
ONLY SEEKS TO HIDE UNDER THE BROWN OF HIS KHAKI; ...  "  (P. 2.) 

"THE LESSON OF THE STAY LAWS OF THE CIVIL WAR TEACHES THAT AN
ARBITRARY AND RIGID PROTECTION AGAINST SUITS IS AS MUCH A MISTAKEN
KINDNESS TO THE SOLDIER AS IT IS UNNECESSARY.  A TOTAL SUSPENSION FOR
THE PERIOD OF THE WAR OF ALL RIGHTS AGAINST A SOLDIER DEFEATS ITS OWN
PURPOSE.  IN TIME OF WAR CREDIT IS OF EVEN MORE IMPORTANCE THAN IN TIME
OF PEACE, AND IF THERE WERE A TOTAL PROHIBITION UPON ENFORCING
OBLIGATIONS AGAINST ONE IN MILITARY SERVICE, THE CREDIT OF A SOLDIER
AND HIS FAMILY WOULD BE UTTERLY CUT OFF.  NO ONE COULD BE FOUND WHO
WOULD EXTEND THEM CREDIT. 

"BUT IN ANY CASE A RIGID STAY OF ALL ACTIONS AGAINST THE SOLDIER IS
TOO BROAD.  THERE ARE MANY MEN NOW IN THE ARMY WHO CAN AND SHOULD PAY
THEIR OBLIGATIONS IN FULL. 

"ON THE OTHER HAND THERE ARE ALREADY TENS OF THOUSANDS OF MEN IN
MILITARY SERVICE WHO WILL BE UTTERLY RUINED AND THEIR FAMILIES MADE
DESTITUTE IF CREDITORS ARE ALLOWED UNRESTRICTEDLY TO PUSH THEIR CLAIMS;
AND YET THESE SAME SOLDIERS, IF GIVEN TIME AND OPPORTUNITY CAN, IN MOST
CASES, MEET THEIR OBLIGATIONS DOLLAR FOR DOLLAR.  THE COUNTRY IS ASKING
2,000,000 OF ITS YOUNG MEN TO RISK THEIR LIVES AND, IF NEED BE, TO GIVE
UP THEIR LIVES FOR THEIR COUNTRY.  BEFORE LONG EVEN MORE WILL BE ASKED
TO MAKE THE SAME SACRIFICE.  IS IT MORE THAN NAKED JUSTICE TO GIVE TO
THE SAVINGS OF THESE SAME MEN SUCH JUST MEASURE OF PROTECTION AS IS
POSSIBLE?"  (PP. 2-3.) 

"SECTION 201 ILLUSTRATES HOW THE COMMITTEE HAS AVOIDED AN ARBITRARY,
A RIGID BILL.  THE CLAUSE 'UNLESS, IN THE OPINION OF THE COURT, THE
ABILITY OF THE DEFENDANT TO COMPLY WITH THE JUDGMENT OR ORDER SOUGHT,
IS NOT MATERIALLY AFFECTED BY REASON OF HIS MILITARY SERVICE,' IS THE
KEY TO THE WHOLE SCHEME OF THE BILL.  THIS MERE FACT OF BEING IN
MILITARY SERVICE IS NOT ENOUGH; MILITARY SERVICE MUST BE THE REASON FOR
THE DEFENDANT NOT MEETING HIS OBLIGATIONS."  (P. 5.) 

CONGRESSMAN WEBB, CHAIRMAN OF THE HOUSE JUDICIARY COMMITTEE, STATED
ON THE FLOOR OF THE HOUSE, WITH REFERENCE TO THIS BILL, THAT: 

"HERETOFORE DURING WARS THE VARIOUS STATES HAVE UNDERTAKEN TO PASS
THE PRIVATE STAY LAWS FOR THE BENEFIT OF THE SOLDIERS WHO ARE IN THE
SERVICE OF THEIR COUNTRY.  IF YOU WILL READ THE VARIOUS LAWS OF THIS
KIND WHICH THE COMMITTEE HAS SET OUT IN ITS REPORT, YOU WILL SEE WHAT
CONTRARIETY OF SUCH LAWS HAVE BEEN PASSED DURING RECENT YEARS AND
DURING THE VARIOUS WARS.  THE NEXT MATERIAL DIFFERENCE BETWEEN THIS LAW
AND THE VARIOUS STATE LAWS IS THIS, AND IN THIS I THINK YOU WILL FIND
THE CHIEF EXCELLENCE OF THE BILL WHICH WE PROPOSE:  INSTEAD OF THE BILL
WE ARE NOW CONSIDERING BEING ARBITRARY, INELASTIC, INFLEXIBLE, THE
DISCRETION AS TO DEALING OUT EVEN-HANDED JUSTICE BETWEEN THE CREDITOR
AND THE SOLDIER, TAKING INTO CONSIDERATION THE FACT THAT THE SOLDIER
HAS BEEN CALLED TO HIS COUNTRY'S CAUSE, RESTS LARGELY, AND IN SOME
CASES ENTIRELY, IN THE BREAST OF THE JUDGE WHO TRIES THE CASE. 
"MANIFESTLY, IF THIS CONGRESS SHOULD UNDERTAKE TO PASS AN ARBITRARY
STAY LAW PROVIDING THAT NO CREDITOR SHOULD EVER SUE OR BRING
PROCEEDINGS AGAINST ANY SOLDIER WHILE IN THE MILITARY SERVICE OF HIS
COUNTRY, THAT WOULD UPSET BUSINESS VERY LARGELY IN MANY PARTS OF THE
COUNTRY.  IN THE NEXT PLACE, IT WOULD BE UNFAIR TO THE CREDITOR AS WELL
AS TO THE SOLDIER.  IT WOULD DISTURB THE SOLDIER'S CREDIT PROBABLY IN
MANY CASES AND WOULD DENY THE RIGHT OF THE CREDITOR TO HIS JUST DEBTS
FROM A PERSON WHO WAS AMPLY ABLE TO PAY AND WHOSE MILITARY SERVICE DID
NOT IN THE LEAST IMPAIR HIS ABILITY TO MEET THE OBLIGATION."  55 CONG.
REC. 7787. 

ON THE FLOOR OF THE SENATE, SEC. 201 WAS AMENDED TO SUBSTITUTE FOR
"THE ABILITY OF THE DEFENDANT TO COMPLY WITH THE JUDGMENT OR ORDER,"
"THE ABILITY OF THE DEFENDANT TO CONDUCT HIS DEFENSE," AND TO EXTEND
ITS PROTECTION TO PLAINTIFFS AS WELL AS TO DEFENDANTS.  56 CONG. REC.
1696, 1753-1754.  THE AMENDMENTS WERE AGREED TO IN CONFERENCE, WITH THE
MANAGERS STATING WITH RESPECT TO THE FORMER AMENDMENT THAT "AS THE BILL
PASSED THE HOUSE RELIEF WAS TO BE GIVEN THE PARTY IN MILITARY SERVICE
UNLESS HIS ABILITY TO COMPLY WITH THE JUDGMENT OR ORDER SOUGHT WAS NOT
MATERIALLY AFFECTED BY SUCH SERVICE.  THE AMENDMENT AGREED ON MAKES THE
TEST DEPEND UPON HIS ABILITY TO CONDUCT HIS DEFENSE."  56 CONG. REC.
3023.  AS SO AMENDED, THE BILL BECAME SEC. 201 OF THE 1918 ACT, 40
STAT. 442, WHICH WAS CARRIED INTO SEC. 201 OF THE 1940 ACT WITHOUT
AMENDMENT OF THE PROVISION UNDER CONSIDERATION.  WHILE IT IS TRUE THAT
THE DISCUSSION SET FORTH IN THE PRECEDING PARAGRAPHS RELATED TO A STAY
ON A DIFFERENT BASIS THAN THE ONE ENACTED, IN SO FAR AS IT DEALS WITH
THE QUESTION WHETHER A MANDATORY OR A DISCRETIONARY STAY WAS INTENDED
IT IS NOT MADE INAPPLICABLE OR UNINSTRUCTIVE BY THE AMENDMENT. 

FN3 DAVIES & DAVIES V. PATTERSON, 137 ARK. 184, 208 S.W. 592; STATE
EX REL. CLARK V. KLENE, 201 MO. APP. 408, 212 S.W. 55; CF. SWIDERSKI V.
MOODENBAUGH, 44 F.SUPP.  687, 45 F.SUPP.  790; DIETZ V. TREUPEL, 184
APP. DIV. 448, 170 N.Y.S. 108; GILLULY V. HAWKINS, 108 WASH. 79, 182 P.
958. 

FN4  SEN. REPT. NO. 2109, 76TH CONG., 3D SESS., P. 2. 

MR. JUSTICE BLACK, DISSENTING: 

THE PETITIONER IS A SOLDIER WHO WAS ON DUTY IN WASHINGTON THROUGHOUT
THE COURSE OF THE LITIGATION IN NORTH CAROLINA OF THIS ACTION AGAINST
HIM.  HE DULY CLAIMED THE PROTECTION OF THE SOLDIERS' AND SAILORS'
CIVIL RELIEF ACT OF 1940, AND RESTS UPON IT HERE.  I THINK HE SHOULD
PREVAIL. 

THE RELEVANT STATUTORY PROVISION BEFORE US MAY BE SUMMARIZED AS
FOLLOWS:  ACTIONS BROUGHT AGAINST A PERSON IN MILITARY SERVICE SHALL BE
STAYED UPON APPLICATION OF THAT PERSON "UNLESS, IN THE OPINION OF THE
COURT, THE ABILITY OF  ...  THE DEFENDANT TO CONDUCT HIS DEFENSE IS NOT
MATERIALLY AFFECTED BY REASON OF HIS MILITARY SERVICE." 

THE STATUTORY LANGUAGE HAS NO LEGISLATIVE HISTORY AND HAS NOT
PREVIOUSLY BEEN INTERPRETED BY THIS COURT.  THE ELABORATE LEGISLATIVE
HISTORY SET FORTH BY THE COURT IS A HISTORY OF A CLAUSE WHICH WAS
STRICKEN FROM THE 1917 ACT, WHICH IS NOT BEFORE US NOW, AND WHICH, ON
ITS FACE, HAS A MEANING WHOLLY DIFFERENT FROM THE CLAUSE UNDER
CONSTRUCTION N1.  HENCE THE PROBLEM IS A NARROW ONE OF ANALYSIS OF THE
WORDS OF THE STATUTE ITSELF. 

I BELIEVE THAT THE CLAUSE UNDER CONSIDERATION REQUIRES THAT AN ACTION
AGAINST A PERSON IN MILITARY SERVICE MUST BE STAYED UNLESS THE TRIAL
JUDGE CONCLUDES (A) THAT NO PERSONAL JUDGMENT WILL RESULT AND THAT THE
ACTION WILL IN EFFECT PRESERVE THE INTERESTS OF ALL THE PARTIES FOR THE
DURATION OF THE WAR; OR (B) THAT THE DEFENDANT IS ONLY A FORMAL PARTY;
OR (C) THAT THE DEFENDANT NEED NOT BE PRESENT FOR ANY PURPOSE, EITHER
BEFORE, DURING, OR AFTER THE TRIAL, AND THAT HE WILL BE ADEQUATELY
REPRESENTED AND HAS NO NEED TO TESTIFY OR PARTICIPATE IN ANY WAY; OR
(D) THAT THE DEFENDANT'S MILITARY SERVICE DOES NOT PRECLUDE HIM FROM
HAVING AMPLE OPPORTUNITY TO GET READY FOR, AND TO TAKE HIS NECESSARY
PART IN, THE LITIGATION. 

IN MY OPINION, NONE OF THESE CONDITIONS ARE MET HERE.  ALTHOUGH THE
ACTION BEGAN AS A PROCEEDING TO PRESERVE THE TRUST ESTATE, WHICH WAS
QUITE PROPER, IT TERMINATED WITH A PERSONAL JUDGMENT AGAINST THE
PETITIONER FOR $11,000 AFTER A TRIAL BY JURY OF MANY DISPUTED FACTS. 
THE PETITIONER WAS OBVIOUSLY NOT MERELY A FORMAL PARTY.  ONE ISSUE IN
THE CASE WAS WHETHER HE HAD DISSIPATED TRUST FUNDS, AND FOR SUCH AN
INQUIRY HIS PRESENCE TO HEAR THE EVIDENCE AGAINST HIM WAS ESSENTIAL TO
HIS INTERESTS AND HIS OWN TESTIMONY WAS, IN THE WORDS OF THE TRIAL
COURT, "HIGHLY DESIRABLE." 

THE SOLE POSSIBLE GROUND FOR THE COURT'S ACTION, THEREFORE, IS THAT
THE DEFENDANT COULD HAVE BEEN PRESENT AND, WILFULLY TAKING ADVANTAGE OF
THE ACT, CHOSE INSTEAD TO ABSENT HIMSELF.  IN REACHING THIS RESULT THE
COURT ENGAGES IN PRECISELY THE SPECULATION WHICH I THINK THE ACT
PROHIBITS.  THE COURT DOES NOT KNOW, AND THE STATE COURT DID NOT TRY TO
FIND OUT, WHETHER BOONE APPLIED FOR A LEAVE OR DISCLOSED ITS URGENCY TO
HIS SUPERIORS; IT CONCLUDES THAT HE DID NEITHER.  THE COURT DOES NOT
KNOW WHETHER BOONE ATTEMPTED TO FIND NEW COUNSEL; IT ASSUMES THAT HE
DID NOT.  THE COURT DOES NOT KNOW WHY BOONE CHOSE TO PARTICIPATE IN
CERTAIN OTHER LAW SUITS AGAINST HIM CONDUCTED SIMULTANEOUSLY WITH THIS
ONE; IT ASSUMES THAT THE OTHERS WERE LESS IMPORTANT THAN THIS CASE. 
THE COURT CAN NOT KNOW WHETHER THE PETITIONER TRULY OWES THE AMOUNT OF
THE JUDGMENT AGAINST HIM; IT MUST ASSUME THAT HE DOES BECAUSE OF A
PROCEEDING CONDUCTED AGAINST HIM IN HIS ABSENCE.  FN2 

THE COURT EMPHASIZES THAT BOONE IS A MEMBER OF THE BAR.  BUT, FOR THE
DURATION OF THE WAR, HE IS PRIMARILY A SOLDIER, WITH A JOB TO DO WHICH
CONGRESS INTENDED SHOULD OVERSHADOW PERSONAL INTERESTS, WHETHER HIS OR
THOSE OF OTHERS WHO SEEK A PERSONAL JUDGMENT AGAINST HIM.  IT IS
DIFFICULT FOR ME TO BELIEVE THAT HE COULD ADEQUATELY HAVE PREPARED FOR
THIS TRIAL WITHOUT A LEAVE OF MANY WEEKS.  THE PURPOSE OF THE ACT IS TO
PREVENT SOLDIERS AND SAILORS FROM BEING HARASSED BY CIVIL LITIGATION
"IN ORDER TO ENABLE SUCH PERSONS TO DEVOTE THEIR ENTIRE ENERGY TO THE
DEFENSE NEEDS OF THE NATION."  SEC. 100.  HE IS REQUIRED TO DEVOTE
HIMSELF TO SERIOUS BUSINESS, AND SHOULD NOT BE ASKED EITHER TO ATTEMPT
TO CONVINCE HIS SUPERIOR OFFICERS OF THE IMPORTANCE OF HIS PRIVATE
AFFAIRS OR TO SPEND HIS TIME HUNTING FOR LAWYERS. 

THE TRIAL COURT SHOULD, AT THE VERY LEAST, HAVE INQUIRED OF THE
APPROPRIATE MILITARY AUTHORITIES WHETHER THE PETITIONER COULD BE
GRANTED AMPLE LEAVE TO PREPARE HIS DEFENSE AND BE PRESENT FOR TRIAL. 
IF THE ACT DOES NOT REQUIRE THIS, IT SERVES LITTLE PURPOSE.  IT MAY BE
ARGUED THAT THIS PETITIONER, A MAN OF KNOWLEDGE AND EXPERIENCE, IS AS
COMPETENT TO ASK HIS SUPERIOR OFFICER FOR LEAVE AS IS THE TRIAL COURT;
BUT THE ARGUMENT FAILS BECAUSE THE POLICY SET HERE, NO MATTER HOW MANY
QUALIFICATIONS THE COURT TRIES TO WORK INTO IT, WILL SHOOT FAR BEYOND
THE CONFINES OF THIS CASE.  IN THE COURSE OF THE WAR, NUMEROUS ACTIONS
WILL BE BROUGHT AGAINST SOLDIERS WHO HAVE NEVER HEARD OF THIS ACT AND
HAVE NO NOTION THAT THIS COURT MIGHT WANT THEM TO APPLY TO THEIR
SUPERIOR OFFICERS FOR LEAVE AND TO MAKE AND FILE A FORMAL RECORD OF
THEIR SUPERIOR OFFICERS' REFUSAL. 

I FEAR THAT TODAY'S DECISION SERIOUSLY LIMITS THE BENEFITS CONGRESS
INTENDED TO PROVIDE IN THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT.  IT
APPARENTLY GIVES THE ACT A LIBERAL CONSTRUCTION FOR THE BENEFIT OF
CREDITORS RATHER THAN FOR THE BENEFIT OF SOLDIERS.  IT PLACES IN TRIAL
JUDGES AN ENORMOUS DISCRETION TO DETERMINE FROM A DISTANCE WHETHER A
PERSON IN MILITARY SERVICE HAS EXERCISED PROPER DILIGENCE TO SECURE A
LEAVE, OR WHETHER IT IS BEST FOR THE NATIONAL DEFENSE THAT HE MAKE NO
APPLICATION AT ALL.  THESE ARE QUESTIONS ON WHICH THE JUDICIARY HAS NO
COMPETENCE, SINCE ONLY THE MILITARY AUTHORITIES CAN KNOW THE ANSWERS. 

FN1  THE CLAUSE FOR WHICH THE COURT GIVES THE LEGISLATIVE HISTORY IS
AS FOLLOWS:  AN ACTION AGAINST A PERSON IN MILITARY SERVICE SHALL BE
STAYED, UPON REQUEST, "UNLESS, IN THE OPINION OF THE COURT, THE ABILITY
OF THE DEFENDANT TO COMPLY WITH THE JUDGMENT OR ORDER SOUGHT IS NOT
MATERIALLY AFFECTED BY REASON OF HIS MILITARY SERVICE."  THIS MEANS, IN
ROUGH SUBSTANCE, WHAT ITS LEGISLATIVE HISTORY SAYS, THAT THE ACTION WAS
TO BE STAYED EXCEPT WHERE THE DEFENDANT COULD READILY PAY A JUDGMENT
AGAINST HIMSELF.  BUT THAT LANGUAGE WAS REMOVED AND THE PRESENT
PROVISION INSERTED:  THE ACTION UPON PROPER REQUEST SHALL BE STAYED
UNLESS IN THE OPINION OF THE TRIAL JUDGE, "THE ABILITY OF THE DEFENDANT
TO CONDUCT HIS DEFENSE" IS AFFECTED BY MILITARY SERVICE.  THE
DIFFERENCE BETWEEN ABILITY TO PAY A JUDGMENT AND ABILITY TO CONDUCT A
DEFENSE IS SO GREAT THAT THE TWO CLAUSES HAVE SUBSTANTIALLY NOTHING IN
COMMON.  THE ABILITY TO PAY CLAUSE HAS BEEN LEFT IN SOME SECTIONS OF
THE ACT, AS, E.G., SECS. 203, 206, BUT IT IS NOT BEFORE US HERE. 

FN2  HAD THIS BEEN A JUDGMENT BY DEFAULT, BOONE MIGHT HAVE IT SET
ASIDE UPON PROPER MOTION MADE AT ANY TIME WITHIN "NINETY DAYS AFTER THE
TERMINATION" OF HIS MILITARY SERVICE.  SEC. 200(4).  WHETHER THAT
QUESTION WHICH THE COURT EXPRESSLY RESERVES. 
..END :














MATTON CO. V. MURPHY, 319 U.S. 412 


NO. 783.  ARGUED MAY 5, 1943.  - DECIDED JUNE 1, 1943.  - APPEALS
DISMISSED. 


BRING ANY JUDGMENT OR DECREE BEFORE THE SUPREME COURT FOR REVIEW SHALL
BE ALLOWED OR ENTERTAINED UNLESS APPLICATION THEREFOR BE DULY MADE
WITHIN THREE MONTHS AFTER THE ENTRY OF SUCH JUDGMENT OR DECREE."  RULE
36 OF THE RULES OF THIS COURT PROVIDES THAT AN APPEAL TO THIS COURT
FROM A STATE COURT OF LAST RESORT MAY BE ALLOWED "BY THE CHIEF JUSTICE
OR PRESIDING JUDGE OF THE STATE COURT, OR BY A JUSTICE OF THIS COURT." 
HELD: 

1. AN APPEAL FOR WHICH A TIMELY APPLICATION WAS MADE TO THE CHIEF
JUDGE OF THE COURT OF APPEALS OF NEW YORK COULD HAVE BEEN ALLOWED BY
HIM EITHER BEFORE OR AFTER THE EXPIRATION OF THE THREE MONTHS PERIOD. 
P. 414. 

2.  WITHIN THE THREE MONTHS PERIOD, APPLICATION FOR APPEAL MAY BE
MADE TO THE STATE JUDGE AND A JUSTICE OF THIS COURT AT THE SAME TIME,
WHEN NECESSARY TO PRESERVE THE RIGHT OF APPEAL.  P. 414. 

3.  WHERE AN APPLICATION FOR APPEAL HAS BEEN MADE TO THE STATE JUDGE
WITHIN THE THREE MONTHS PERIOD AND HAS BEEN DENIED, A SUBSEQUENT
APPLICATION TO A JUSTICE OF THIS COURT, FILED AFTER THE THREE MONTHS
PERIOD HAS EXPIRED, IS TOO LATE.  P. 414. 

MATTON STEAMBOAT CO., INC. ET AL. V. MURPHY, ACTING INDUSTRIAL
COMMISSIONER, ET AL.* 

*TOGETHER WITH NO. 813, LAKE TANKERS CORP. V. MURPHY, ACTING
INDUSTRIAL COMMISSIONER, ET AL., ALSO ON APPEAL FROM THE SUPREME COURT
OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT. 

APPEAL FROM THE SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD
DEPARTMENT. 

APPEALS FROM A JUDGMENT, 289 N.Y. 119, 44 N.E.2D 391(ENTERED IN THE
SUPREME COURT, APPELLATE DIVISION, ON REMITTITUR) SUSTAINING THE
VALIDITY OF THE NEW YORK UNEMPLOYMENT INSURANCE LAW.  SEE ALSO 263 APP.
DIV. 756, 774; 30 N.Y.S.2D 930, 32 N.Y.S.2D 373. 

PER CURIAM. 

IN THESE CASES APPELLANTS HAVE SOUGHT TO APPEAL UNDER SEC. 237(A) OF
THE JUDICIAL CODE, 28 U.S.C. SEC. 344(A), FROM JUDGMENTS OF THE NEW
YORK COURTS SUSTAINING THE VALIDITY OF THE NEW YORK UNEMPLOYMENT
INSURANCE LAW (N.Y. LABOR LAW, SEC. 500 ET SEQ.).  THE APPLICABLE
BRING ANY JUDGMENT OR DECREE BEFORE THE SUPREME COURT FOR REVIEW SHALL
BE ALLOWED OR ENTERTAINED UNLESS APPLICATION THEREFOR BE DULY MADE
WITHIN THREE MONTHS AFTER THE ENTRY OF SUCH JUDGMENT OR DECREE." 

THE QUESTION FOR OUR DECISION IS WHETHER THE APPEALS TO THIS COURT IN
THESE CASES WERE TIMELY.  IN EACH, WITHIN THREE MONTHS AFTER THE
JUDGMENT OF THE COURT OF APPEALS (SEE DEPARTMENT OF BANKING V. PINK,
317 U.S. 264), THE APPELLANT MADE TIMELY APPLICATION FOR ALLOWANCE OF
THE APPEAL TO THE CHIEF JUDGE OF THE NEW YORK COURT OF APPEALS WHO,
BEING IN DOUBT AS TO THE FINALITY OF THE JUDGMENTS, DENIED THE
APPLICATIONS SHORTLY BEFORE THE EXPIRATION OF THE THREE MONTHS PERIOD. 
ON APPLICATION TO AN ASSOCIATE JUSTICE OF THIS COURT, MADE SHORTLY
AFTER THE THREE MONTHS HAD EXPIRED, THE APPEALS WERE ALLOWED BY HIM
WITH THE COURT'S APPROVAL, IN ORDER THAT WE MIGHT RESOLVE AN UNSETTLED
QUESTION OF OUR PRACTICE (SEE ROBERTSON AND KIRKHAM, JURISDICTION OF
THE SUPREME COURT OF THE UNITED STATES, PP. 717-18).  WHEN WE SET THE
CASES FOR ARGUMENT TOGETHER WITH TWO COMPANION CASES, STANDARD DREDGING
CORP. V. MURPHY, ANTE, P. 306, AND INTERNATIONAL ELEVATING CO. V.
MURPHY, ANTE, P. 306, WE REQUESTED COUNSEL TO DISCUSS THE QUESTION
WHETHER THE APPEALS WERE "APPLIED FOR WITHIN THE TIME PROVIDED BY
LAW." 

BY RULE 36 OF OUR RULES, AN APPEAL TO THIS COURT FROM A STATE COURT
OF LAST RESORT MAY BE ALLOWED "BY THE CHIEF JUSTICE OR PRESIDING JUDGE
OF THE STATE COURT, OR BY A JUSTICE OF THIS COURT."  BUT SUCH AN APPEAL
MAY NOT BE ALLOWED WHEN NO APPLICATION IS MADE TO THE JUDGE OR JUSTICE
AUTHORIZED TO ALLOW IT WITHIN THE PERIOD PRESCRIBED BY THE STATUTE. 
HERE APPELLANTS' APPLICATIONS TO THE CHIEF JUDGE OF THE COURT OF
APPEALS WERE TIMELY, AND COULD HAVE BEEN ALLOWED BY HIM EITHER BEFORE
OR AFTER THE EXPIRATION OF THE THREE MONTHS PERIOD.  CARDONA V.
QUINONES, 240 U.S. 83; LATHAM V. UNITED STATES, 131 U.S. APPENDIX,
XCVII; UNITED STATES V. VIGIL, 10 WALL.  423, 427.  THE APPEALS COULD
ALSO HAVE BEEN ALLOWED, ON SUCH TIMELY APPLICATIONS, BY A JUSTICE OF
THIS COURT.  AND THERE IS NOTHING IN THE STATUTE OR RULES TO PRECLUDE
APPLICATION WITHIN THE THREE MONTHS TO BOTH THE STATE JUDGE AND A
JUSTICE OF THIS COURT AT THE SAME TIME, WHERE SHORTNESS OF TIME MAKES
THAT NECESSARY TO PRESERVE THE RIGHT OF APPEAL.  CF. SPIES V. ILLINOIS,
123 U.S. 131, 142. 

BUT WHEN THE CHIEF JUDGE OF THE COURT OF APPEALS DENIED APPELLANTS'
APPLICATIONS AND DISALLOWED THE APPEALS, THE APPLICATIONS WERE NO
LONGER PENDING BEFORE HIM AND, AT LEAST IN THE ABSENCE OF ANY
RECONSIDERATION BY HIM, APPEALS COULD BE ALLOWED ONLY ON A NEW
APPLICATION EITHER TO HIM OR TO A JUSTICE OF THIS COURT.  THE TIME
WITHIN WHICH SUCH APPLICATIONS COULD BE MADE IS THAT PRESCRIBED BY THE
STATUTE.  ITS LANGUAGE IS PEREMPTORY - "NO APPEAL  ...  SHALL BE
ALLOWED OR ENTERTAINED UNLESS APPLICATION THEREFOR BE DULY MADE WITHIN
THREE MONTHS."  THE PURPORT OF THE WORDS IS THAT THE APPEAL ALLOWED
MUST BE ONE THAT IS APPLIED FOR WITHIN THE THREE MONTHS PERIOD.  AN
APPLICATION WHICH HAS BEEN MADE WITHIN THAT PERIOD AND DENIED DOES NOT
SATISFY THAT REQUIREMENT, NOR DOES A LATER APPLICATION FILED AFTER THE
TIME LIMIT HAS EXPIRED EVEN THOUGH IT BE ALLOWED. 

THE PURPOSE OF STATUTES LIMITING THE PERIOD FOR APPEAL IS TO SET A
DEFINITE POINT OF TIME WHEN LITIGATION SHALL BE AT AN END, UNLESS
WITHIN THAT TIME THE PRESCRIBED APPLICATION HAS BEEN MADE; AND IF IT
HAS NOT, TO ADVISE PROSPECTIVE APPELLEES THAT THEY ARE FREED OF THE
APPELLANT'S DEMANDS.  ANY OTHER CONSTRUCTION OF THE STATUTE WOULD
DEFEAT ITS PURPOSE.  WOULD-BE APPELLANTS COULD PROLONG INDEFINITELY THE
APPEAL PERIOD, BY MAKING APPLICATION TO ONE JUDGE WITHIN THE THREE
MONTHS AND UPON ITS DENIAL BY APPLYING SUCCESSIVELY TO OTHER JUDGES
EVEN AFTER THE PRESCRIBED TIME FOR APPEAL HAD ENDED.  MOREOVER, IN SUCH
CASES EXTENSION OF THE PERIOD FOR APPEAL COULD BE LIMITED ONLY BY
RECOURSE TO THE DOCTRINE OF LACHES APPLIED IN THE PARTICULAR
CIRCUMSTANCES OF EACH CASE. 

WE CONCLUDE THAT APPELLANTS' APPLICATIONS FOR ALLOWANCE OF THE
APPEALS, AFTER THE EXPIRATION OF THE THREE MONTHS PERIOD, WERE TOO
LATE, AND THAT THIS COURT IS WITHOUT JURISDICTION TO ENTERTAIN THE
APPEALS, WHICH ARE ACCORDINGLY DISMISSED. 
..END :



















KELLEY V. EVERGLADES DISTRICT, 319 U.S. 415 


NO. 935.  DECIDED JUNE 1, 1943.  - 132 F.2D 742, VACATED. 


1.  THE RECORD IN THIS CASE LACKS THE FINDINGS OF FACT WHICH SEC.
83(E) OF THE BANKRUPTCY ACT AND NO. 37 OF THE GENERAL ORDERS IN
BANKRUPTCY REQUIRE AND WHICH ARE NECESSARY TO ENABLE THIS COURT TO
DETERMINE WHETHER THE PLAN UNDER CHAPTER IX OF THE BANKRUPTCY ACT FOR
COMPOSITION OF THE DEBTS OF A FLORIDA DRAINAGE DISTRICT DISCRIMINATES
UNFAIRLY IN FAVOR OF A PARTICULAR CLASS OF CREDITORS.  P. 417. 

2.  THAT ONLY A VERY SMALL MINORITY OF CREDITORS HAVE OBJECTED TO THE
PLAN DOES NOT RELIEVE THE COURTS OF THE DUTY OF APPRAISING ITS
FAIRNESS, AND OF MAKING THE FINDINGS NECESSARY TO SUPPORT SUCH AN
APPRAISAL.  P. 418. 

3.  THE NATURE AND DEGREE OF EXACTNESS OF THE FINDINGS REQUIRED IN
PROCEEDINGS UNDER CH. IX DEPENDS ON THE CIRCUMSTANCES OF THE PARTICULAR
CASE.  P. 419. 

4.  WHERE FUTURE TAX REVENUES OF A DRAINAGE DISTRICT ARE THE ONLY
SOURCE TO WHICH CREDITORS CAN LOOK FOR PAYMENT OF THEIR CLAIMS,
CONSIDERED ESTIMATES OF THOSE REVENUES CONSTITUTE THE ONLY AVAILABLE
BASIS FOR APPRAISING THE RESPECTIVE INTERESTS OF DIFFERENT CLASSES OF
CREDITORS.  P. 419. 

5.  IN ORDER THAT A COURT MAY DETERMINE THE FAIRNESS OF THE TOTAL
AMOUNT OF CASH OR SECURITIES OFFERED TO CREDITORS BY THE PLAN, THE
COURT MUST HAVE BEFORE IT DATA WHICH WILL PERMIT A REASONABLE, AND
HENCE AN INFORMED, ESTIMATE OF THE PROBABLE FUTURE REVENUES AVAILABLE
FOR THE SATISFACTION OF CREDITORS.  P. 420. 

6.  WHERE DIFFERENT CLASSES OF CREDITORS ASSERT PRIOR CLAIMS TO
DIFFERENT SOURCES OF REVENUE, THERE MUST BE A DETERMINATION OF THE
EXTENT TO WHICH EACH CLASS IS ENTITLED TO SHARE IN A PARTICULAR SOURCE,
AND OF THE FAIRNESS OF THE ALLOTMENT TO EACH CLASS IN THE LIGHT OF THE
PROBABLE REVENUES TO BE ANTICIPATED FROM EACH SOURCE.  P. 420. 

TO SUPPORT SUCH DETERMINATIONS, THERE MUST BE FINDINGS, IN SUCH
DETAIL AND EXACTNESS AS THE NATURE OF THE CASE PERMITS, OF SUBSIDIARY
FACTS ON WHICH THE ULTIMATE CONCLUSION OF FAIRNESS CAN RATIONALLY BE
PREDICATED. 

7.  IN A CH. IX PROCEEDING IT IS NOT THE FUNCTION OF THIS COURT TO
ANALYZE THE EVIDENCE IN ORDER TO SUPPLY FINDINGS WHICH THE TRIAL COURT
FAILED TO MAKE; THERE MUST BE FINDINGS, STATED EITHER IN THE TRIAL
COURT'S OPINION OR SEPARATELY, WHICH ARE SUFFICIENT TO INDICATE THE
FACTUAL BASIS FOR ITS ULTIMATE CONCLUSION.  P. 421. 

KELLEY ET AL. V. EVERGLADES DRAINAGE DISTRICT. 

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT. 

PETITION FOR WRIT OF CERTIORARI TO REVIEW THE AFFIRMANCE OF A DECREE
CONFIRMING A PLAN UNDER CHAPTER IX OF THE BANKRUPTCY ACT FOR THE
COMPOSITION OF INDEBTEDNESS OF THE DRAINAGE DISTRICT.  THE WRIT WAS
GRANTED AND THE JUDGMENT BELOW WAS VACATED. 

PER CURIAM. 

IN THIS CASE WE ARE ASKED TO REVIEW A PLAN FOR COMPOSITION OF THE
DEBTS OF RESPONDENT, A DRAINAGE DISTRICT ORGANIZED UNDER THE LAWS OF
FLORIDA.  THE COURTS BELOW HAVE CONFIRMED THE PLAN UNDER SEC. 83(E) OF
THE BANKRUPTCY ACT, 50 STAT. 653, 658, 11 U.S.C. SEC. 403(E), AS
AMENDED, UPON THE FINDING OF THE DISTRICT COURT, PREREQUISITE TO THE
ADOPTION OF THE PLAN, THAT IT IS "FAIR, EQUITABLE, AND FOR THE BEST
INTERESTS OF THE CREDITORS AND DOES NOT DISCRIMINATE UNFAIRLY IN FAVOR
OF ANY CREDITOR OR CLASS OF CREDITORS."  132 F.2D 742. 

PETITIONERS ARE HOLDERS OF INTEREST COUPONS, DETACHED FROM BONDS
ISSUED BY RESPONDENT, ON WHICH THEY HAVE RECOVERED JUDGMENTS. 
ACCORDING TO RECITALS IN THE PLAN OF COMPOSITION, THE DEBTOR'S BONDS
AND THE INTEREST COUPONS, DESIGNATED BY THE PLAN AS CLASS I
INDEBTEDNESS, "CONSTITUTE A FIRST CHARGE AGAINST TAXES LEVIED  ...
AGAINST LANDS IN THE DISTRICT, AND HAVE PREFERENCE OVER CLASS II
INDEBTEDNESS"; THE CLASS II INDEBTEDNESS, CONSISTING OF VARIOUS
MISCELLANEOUS CLAIMS AGAINST THE DISTRICT, "IS PAYABLE FROM AN AD
VALOREM TAX OF ONE MILL  ...  , DOES NOT CONSTITUTE A FIRST CHARGE
AGAINST ANY FIXED REVENUES OF THE DISTRICT, AND IS NOT SECURED BY ANY
LIEN OR PLEDGE."  UNDER THE PLAN THE BONDHOLDERS ARE TO RECEIVE 56.918
CENTS IN CASH FOR EACH DOLLAR OF PRINCIPAL AMOUNT; HOLDERS OF DETACHED
INTEREST COUPONS, INCLUDING COUPONS ON WHICH JUDGMENTS HAVE BEEN
RECOVERED, ARE TO RECEIVE 36.77 CENTS, AND HOLDERS OF CLASS II
INDEBTEDNESS 26.14 CENTS.  THE PLAN IS TO BE FINANCED BY A LOAN FROM
THE RECONSTRUCTION FINANCE CORPORATION, EVIDENCED AND SECURED BY THE
ISSUANCE TO IT OF NEW 4% BONDS OF THE DISTRICT. 

PETITIONERS CONTEND HERE, AS THEY DID IN BOTH COURTS BELOW, THAT THE
PLAN DISCRIMINATES UNFAIRLY IN FAVOR OF THE CLASS II CREDITORS.  BUT WE
ARE UNABLE TO REACH THAT QUESTION SINCE WE AGREE WITH PETITIONERS THAT
THE RECORD LACKS THE FINDINGS OF FACT WHICH THE STATUTE AND THE GENERAL
ORDERS IN BANKRUPTCY REQUIRE, AND WHICH ARE NECESSARY TO THE
DETERMINATION OF THAT QUESTION. 

HEARING, THE JUDGE SHALL MAKE WRITTEN FINDINGS OF FACT AND HIS
CONCLUSIONS OF LAW THEREON."  AND RULE 52(A) OF THE RULES OF CIVIL
PROCEDURE, MADE APPLICABLE TO BANKRUPTCY CASES BY GENERAL ORDER IN
BANKRUPTCY NO. 37, REQUIRES THE COURT TO "FIND THE FACTS SPECIALLY." 
IN CONSOLIDATED ROCK PRODUCTS CO. V. DUBOIS, 312 U.S. 510, 520-525,
THIS COURT HELD THAT IN THE ABSENCE OF FINDINGS AS TO THE VALUE OF THE
ASSETS SUBJECT TO THE PAYMENT OF THE RESPECTIVE CLAIMS OF EACH CLASS OF
BONDHOLDERS, THE COURTS WERE IN NO POSITION TO EXERCISE THE "INFORMED,
INDEPENDENT JUDGMENT" NECESSARY TO THE DISCHARGE OF THEIR STATUTORY
DUTY TO DETERMINE THE FAIRNESS OF A PLAN OF CORPORATE REORGANIZATION
UNDER THE OLD SEC. 77B OF THE BANKRUPTCY ACT.  IN ECKER V. WESTERN
PACIFIC R. CORP., 318 U.S. 448, AND IN GROUP OF INSTITUTIONAL INVESTORS
V. CHICAGO, M., ST. P. & P.R. CO., 318 U.S. 523, WE HELD THE
REQUIREMENT OF ADEQUATE FINDINGS APPLICABLE TO RAILROAD REORGANIZATIONS
UNDER SEC. 77 OF THE BANKRUPTCY ACT. 

IT APPLIES WITH NO LESS FORCE TO CASES OF MUNICIPAL BANKRUPTCY.  AND,
AS STATED IN THE CONSOLIDATED ROCK PRODUCTS CASE, SUPRA, THE FACT THAT
ONLY A VERY SMALL MINORITY OF CREDITORS HAVE OBJECTED TO THE PLAN DOES
NOT RELIEVE THE COURTS OF THE DUTY OF APPRAISING ITS FAIRNESS, AND OF
MAKING THE FINDINGS NECESSARY TO SUPPORT SUCH AN APPRAISAL.  AS WE SAID
IN THE CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC CASE, P. 571, MINORITIES
UNDER THE VARIOUS REORGANIZATION SECTIONS OF THE BANKRUPTCY ACT "CANNOT
BE DEPRIVED OF THE BENEFITS OF THE STATUTE BY REASON OF A WAIVER,
ACQUIESCENCE OR APPROVAL BY THE OTHER MEMBERS OF THE CLASS."  THE
APPLICABILITY OF THAT RULE TO PROCEEDINGS UNDER CH. IX IS PLAIN.  WE
STATED IN AMERICAN INS. CO. V. AVON PARK, 311 U.S. 138, 148, "THE FACT
THAT THE VAST MAJORITY OF SECURITY HOLDERS MAY HAVE APPROVED A PLAN IS
NOT THE TEST OF WHETHER THAT PLAN SATISFIES THE STATUTORY STANDARD. 
THE FORMER IS NOT A SUBSTITUTE FOR THE LATTER.  THEY ARE INDEPENDENT." 

THE NATURE AND DEGREE OF EXACTNESS OF THE FINDINGS REQUIRED DEPENDS
ON THE CIRCUMSTANCES OF THE PARTICULAR CASE.  IN THE WESTERN PACIFIC
AND CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC CASES, WE POINTED OUT THAT
IN CASES OF RAILROAD REORGANIZATION, THE DUTY OF MAKING BASIC
EVIDENTIARY FINDINGS DOES NOT REQUIRE A DETERMINATION IN TERMS OF
DOLLARS AND CENTS OF THE VALUE OF THE ASSETS SUBJECT TO THE RESPECTIVE
LIENS.  WE HELD THAT IT WAS SUFFICIENT IF THE COMMISSION'S REPORT SET
FORTH ITS CONCLUSION AS TO THE PROSPECTIVE EARNING POWER OF THE
REORGANIZED ROAD, WITH FINDINGS SUPPORTING ITS APPORTIONMENT OF FUTURE
EARNINGS AMONG CREDITORS AND STOCKHOLDERS SO AS TO PRESERVE THEIR
RELATIVE PRIORITIES, TOGETHER WITH REASONS FOR ITS CONCLUSIONS AND
ESSENTIAL SUPPORTING DATA.  ONCE THE PRIORITY OF LIENS HAS BEEN
DETERMINED, CONSIDERED ESTIMATES OF FUTURE EARNING POWER AFFORD A
SUBSTANTIAL BASIS FOR APPRAISING THE INTERESTS OF THE RESPECTIVE
LIENORS.  AS SUCH ESTIMATES INVOLVE AN ELEMENT OF PROPHECY, THE
REORGANIZATION OF PROPERTIES WHICH CANNOT READILY BE LIQUIDATED
REQUIRES RESORT TO "PRACTICAL ADJUSTMENTS, RATHER THAN A RIGID
FORMULA," CONSOLIDATED ROCK PRODUCTS CO. V. DUBOIS, SUPRA, 529.  HENCE
WE CONCLUDED THAT FINDINGS OF THE FUTURE EARNINGS OF THE REORGANIZED
RAILROAD DISTRIBUTABLE TO EACH CLASS OF SECURITY HOLDERS AND CREDITORS
WERE AN ADEQUATE SUBSTITUTE FOR FINDINGS OF ASSET VALUE IN TERMS OF
DOLLARS AND CENTS, WHICH WE HELD COULD BE DISPENSED WITH AS AFFORDING
NO MORE THAN A DELUSIVE APPEARANCE OF A CERTAINTY WHICH THE SUBJECT
MATTER DID NOT WARRANT. 

DELUSIVE EXACTNESS OF FINDINGS IS LIKEWISE NOT DEMANDED IN CASES OF
MUNICIPAL BANKRUPTCY.  BUT WHERE FUTURE TAX REVENUES ARE THE ONLY
SOURCE TO WHICH CREDITORS CAN LOOK FOR PAYMENT OF THEIR CLAIMS,
CONSIDERED ESTIMATES OF THOSE REVENUES CONSTITUTE THE ONLY AVAILABLE
BASIS FOR APPRAISING THE RESPECTIVE INTERESTS OF DIFFERENT CLASSES OF
CREDITORS.  IN ORDER THAT A COURT MAY DETERMINE THE FAIRNESS OF THE
TOTAL AMOUNT OF CASH OR SECURITIES OFFERED TO CREDITORS BY THE PLAN,
THE COURT MUST HAVE BEFORE IT DATA WHICH WILL PERMIT A REASONABLE, AND
HENCE AN INFORMED, ESTIMATE OF THE PROBABLE FUTURE REVENUES AVAILABLE
FOR THE SATISFACTION OF CREDITORS. 

AND WHERE, AS HERE, DIFFERENT CLASSES OF CREDITORS ASSERT PRIOR
CLAIMS TO DIFFERENT SOURCES OF REVENUE, THERE MUST BE A DETERMINATION
OF THE EXTENT TO WHICH EACH CLASS IS ENTITLED TO SHARE IN A PARTICULAR
SOURCE, AND OF THE FAIRNESS OF THE ALLOTMENT TO EACH CLASS IN THE LIGHT
OF THE PROBABLE REVENUES TO BE ANTICIPATED FROM EACH SOURCE.  TO
SUPPORT SUCH DETERMINATIONS, THERE MUST BE FINDINGS, IN SUCH DETAIL AND
EXACTNESS AS THE NATURE OF THE CASE PERMITS, OF SUBSIDIARY FACTS ON
WHICH THE ULTIMATE CONCLUSION OF FAIRNESS CAN RATIONALLY BE
PREDICATED. 

THE FINDINGS IN THE PRESENT CASE FALL SHORT OF THAT REQUIREMENT N1. 
APPROPRIATE FACTS WHICH MIGHT HAVE BEEN CONSIDERED, BUT WHICH ARE
NOWHERE REFERRED TO IN THE OPINIONS OR FINDINGS BELOW, ARE THE REVENUES
WHICH HAVE IN THE PAST BEEN RECEIVED FROM EACH SOURCE OF TAXATION, THE
PRESENT ASSESSED VALUE OF PROPERTY SUBJECT TO EACH TAX, THE TAX RATES
CURRENTLY PRESCRIBED, THE PROBABLE EFFECT ON FUTURE REVENUES OF A
REVISION IN THE TAX STRUCTURE ADOPTED IN 1941, THE EXTENT OF PAST TAX
DELINQUENCIES, AND ANY GENERAL ECONOMIC CONDITIONS OF THE DISTRICT
WHICH MAY REASONABLY BE EXPECTED TO AFFECT THE PERCENTAGE OF FUTURE
DELINQUENCIES.  IT MAY BE THAT ADEQUATE EVIDENCE AS TO THESE MATTERS IS
IN THE PRESENT RECORD.  ON THAT WE DO NOT PASS, FOR IT IS NOT THE
FUNCTION OF THIS COURT TO SEARCH THE RECORD AND ANALYZE THE EVIDENCE IN
ORDER TO SUPPLY FINDINGS WHICH THE TRIAL COURT FAILED TO MAKE.  NOR DO
WE INTIMATE THAT FINDINGS MUST BE MADE ON ALL OF THE ENUMERATED MATTERS
OR NEED BE MADE ON NO OTHERS; THE NATURE OF THE EVIDENTIARY FINDINGS
SUFFICIENT AND APPROPRIATE TO SUPPORT THE COURT'S DECISION AS TO
FAIRNESS OR UNFAIRNESS IS FOR THE TRIAL COURT TO DETERMINE IN THE FIRST
INSTANCE IN THE LIGHT OF THE CIRCUMSTANCES OF THE PARTICULAR CASE.  WE
HOLD ONLY THAT THERE MUST BE FINDINGS, STATED EITHER IN THE COURT'S
OPINION OR SEPARATELY, WHICH ARE SUFFICIENT TO INDICATE THE FACTUAL
BASIS FOR THE ULTIMATE CONCLUSION. 

SINCE THE STATE OF THE RECORD IS SUCH THAT A PROPER DETERMINATION OF
THE QUESTIONS OF LAW RAISED BY PETITIONERS' CONTENTIONS AS TO THE
TREATMENT OF CLASS II CREDITORS CANNOT BE MADE IN THE ABSENCE OF
SUITABLE FINDINGS, THE PETITION FOR WRIT OF CERTIORARI IS GRANTED, THE
JUDGMENT IS VACATED, AND THE CAUSE REMANDED TO THE DISTRICT COURT FOR
APPROPRIATE ACTION IN CONFORMITY WITH THIS OPINION.  SO ORDERED. 

FN1  THE MASTER, WHOSE FINDINGS WERE ADOPTED PRO FORMA BY THE
DISTRICT COURT, APPROVED THE CLASSIFICATION OF DEBTS PROPOSED IN THE
PLAN, AND MADE FINDINGS AS TO THE AMOUNT OF INDEBTEDNESS OF EACH
CLASS.  HE SUBSTANTIALLY PARAPHRASED THE RECITALS OF THE PLAN AS TO THE
SOURCES TO WHICH EACH CLASS OF CREDITORS COULD LOOK FOR PAYMENT, AND
FOUND THAT THE ACREAGE TAX, OUT OF WHICH CLASS I DEBTS WERE PAYABLE,
WAS "THE MAIN SOURCE OF REVENUE OF THE DISTRICT."  HE STATED: 

"SOME OF THE OBJECTING CREDITORS HAVE TAKEN THE POSITION THAT THE
PLAN OF COMPOSITION, AS AMENDED, PROVIDES FOR THE USE OF ACREAGE TAX
FUNDS FOR PURPOSES OTHER THAN THE PAYMENT OF BONDS AND INTEREST
COUPONS, AND ONE MIGHT GET THAT IMPRESSION FROM SIMPLY READING ISOLATED
PARTS OF THE PLAN, BUT, TAKING IT AS A WHOLE, IT DOES NOT SO PROVIDE." 
AND, IN ANSWER TO THE CONTENTION THAT THE PLAN VIOLATED THE SO-CALLED
"RULE OF ABSOLUTE PRIORITY" (SEE CASE V. LOS ANGELES LUMBER CO., 308
U.S. 106), HE SAID: 

"A SUPERFICIAL READING OF THE PLAN MIGHT SO INDICATE, BUT A CAREFUL
ANALYSIS OF THE ENTIRE PLAN, THE PROVISIONS OF THE LOAN, THE CONDITIONS
OF PAYMENT OF TWO CLASSES OF DEBTS, AND A PRACTICAL APPLICATION OF THE
PLAN TO THE DISTRICT DEBTS, RESOLVES THAT QUESTION AGAINST SUCH
THEORY."  THESE WERE THE ONLY TWO FINDINGS MADE BY THE MASTER RELATIVE
TO THE RIGHTS OF THE TWO CLASSES OF CREDITORS INTER SE OR TO THE AMOUNT
OF REVENUES LIKELY TO BE AVAILABLE FOR SERVICE OF THE DEBT.  WITHOUT
FURTHER FINDINGS ON THESE VITAL MATTERS THE MASTER CONCLUDED THAT:
"THE PROPOSED PLAN OF COMPOSITION, AS AMENDED, IS FAIR, EQUITABLE AND
FOR THE BEST INTERESTS OF THE CREDITORS AND DOES NOT DISCRIMINATE
UNFAIRLY IN FAVOR OF ANY CREDITOR OR CLASS OF CREDITORS." 

THE CIRCUIT COURT OF APPEALS CLARIFIED THE MASTER'S FINDINGS AS TO
THE RESPECTIVE RIGHTS OF EACH CLASS OF CREDITORS BY EXPRESSLY STATING
THAT THE CLASS II INDEBTEDNESS WAS A FIRST CHARGE ON THE RECEIPTS FROM
THE AD VALOREM TAX.  IT POINTED OUT THAT IN ORDER THAT THE DISTRICT
MIGHT EXERCISE ITS MAXIMUM BORROWING POWER IT MUST EXTINGUISH ALL
EXISTING CLAIMS AGAINST THE ACREAGE AND AD VALOREM TAXES, AND THAT IN
1941 THE TAX STRUCTURE HAD BEEN REVISED SO AS TO MAKE ALL POSSIBLE
TAXING RESOURCES AVAILABLE FOR PAYMENT OF THE NEW BONDS ISSUED TO THE
RECONSTRUCTION FINANCE CORPORATION.  FROM THIS IT CONCLUDED WITHOUT
FURTHER DISCUSSION THAT "PROVISION FOR PAYMENT OF 26.14[ ON THE DOLLAR
TO DISCHARGE CLASS II DEBTS WAS FULLY AUTHORIZED BY THE FACTS, AND WAS
NOT INEQUITABLE, UNFAIR, OR DISCRIMINATORY." 

BEYOND THIS NONE OF THE FINDINGS OR OPINIONS BELOW PRESENT ANY
DISCUSSION OF FACTS RELATING TO THE FAIRNESS OF THE RESPECTIVE
TREATMENT ACCORDED THE TWO CLASSES OF CREDITORS BY THE PLAN. 

MR. JUSTICE BLACK, DISSENTING: 

I CANNOT AGREE THAT THIS CASE SHOULD BE SUMMARILY REMANDED.  IN JUNE,
1941, THE DISTRICT FILED AN APPLICATION FOR COMPOSITION OF ITS DEBTS. 
THE PETITIONERS HERE FILED A MOTION TO DISMISS, WHICH WAS OVERRULED. 
THEY APPEALED TO THE CIRCUIT COURT OF APPEALS, MAKING CONTENTIONS WHICH
THAT COURT FOUND TO BE "TECHNICAL IN THE EXTREME."  KELLEY V.
EVERGLADES DRAINAGE DISTRICT, 127 F.2D 808, 809.  WHEN THE CASE CAME
BACK BEFORE THE CIRCUIT COURT OF APPEALS IN THE INSTANT PROCEEDINGS,
THAT COURT FOUND FROM THE ENTIRE RECORD THAT THESE PETITIONERS HAD BY
"UNFOUNDED AND EXTREMELY TECHNICAL CONTENTIONS  ...  SOUGHT TO OBSTRUCT
THE PLAN."  132 F.2D 742, 744, 745. 

REVERSAL FOR MORE FINDINGS MEANS STILL FURTHER DELAY IN BRINGING
ABOUT WHAT IS UNDOUBTEDLY A MUCH NEEDED FINANCIAL REORGANIZATION. 
WHILE I AM CERTAIN THAT THE COURTS BELOW COULD COUCH THEIR FINDINGS IN
DIFFERENT AND MORE WORDS, I AM BY NO MEANS SURE THEY COULD SET OUT WITH
GREATER CLARITY THEIR CONCLUSION THAT THE EVIDENCE SHOWS BOTH GROUPS OF
BONDHOLDERS TO HAVE BEEN ACCORDED FAIR AND EQUITABLE TREATMENT.  THE
DECISION OF THE CIRCUIT COURT OF APPEALS WAS MADE WITH FULL
APPRECIATION AND AFTER FULL CONSIDERATION OF THE ISSUES, THE EVIDENCE,
AND THE DISTRICT COURT'S FINDINGS.  UNDER THESE CIRCUMSTANCES, I SHOULD
PREFER TO DENY CERTIORARI, BUT SINCE THE COURT HAS DETERMINED TO GRANT
REVIEW, I THINK WE SHOULD NOT DISPOSE OF THE CASE WITHOUT FIRST GIVING
THE PARTIES AN OPPORTUNITY TO ARGUE THE ISSUES.  ON THE RECORD AS I NOW
SEE IT, THE FINDINGS WERE ABUNDANTLY ADEQUATE, AND THE CONCLUSION OF
THE CIRCUIT COURT OF APPEALS WAS CORRECT. 
..END :


















STEPHAN V. UNITED STATES, 319 U.S. 423 


NO. - .  DECIDED JUNE 1, 1943.  - APPLICATION DENIED. 


1.  A CONVICTION IN A CAPITAL CASE IN THE DISTRICT COURT IS NOT
APPEALABLE DIRECTLY TO THIS COURT.  JUDICIAL CODE (1911), 36 STAT.
1087.  P. 426. 

2.  WHERE THE U.S.C. AND THE STATUTES AT LARGE ARE INCONSISTENT, THE
LATTER PREVAIL.  P. 426. 

STEPHAN V. UNITED STATES. 

ON APPLICATION FOR ALLOWANCE OF APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN. 

APPLICATION FOR ALLOWANCE OF A DIRECT APPEAL FROM A CONVICTION IN THE
DISTRICT COURT IN A CAPITAL CASE.  SEE 49 F.SUPP.  897. 

PER CURIAM. 

THIS CASE IS BEFORE US ON AN APPLICATION FOR THE ALLOWANCE OF A
DIRECT APPEAL AS OF RIGHT FROM A JUDGMENT OF THE DISTRICT COURT
SENTENCING APPLICANT TO DEATH, IT BEING CONTENDED THAT SUCH AN APPEAL
MAY BE TAKEN PURSUANT TO THE SECTION APPEARING IN THE U.S.C. (1940
EDITION) AS SEC. 681 OF TITLE 18.  THE APPLICATION WAS PRESENTED TO MR.
JUSTICE REED, AND BY HIM REFERRED TO THE FULL COURT.  CF. BUDLONG V.
BUDLONG, 296 U.S. 550; BROWN V. LANE, 232 U.S. 598, 600; SPIES V.
ILLINOIS, 123 U.S. 131, 143; BESS V. WEST VIRGINIA, 308 U.S. 509.  A
SIMILAR APPLICATION HAS BEEN DENIED BY THE TRIAL JUDGE ON THE GROUND,
AMONG OTHERS, THAT THE SECTION RELIED ON TO ESTABLISH THE JURISDICTION
OF THIS COURT HAS BEEN REPEALED.  49 F.SUPP.  897. 

STEPHAN WAS CONVICTED OF TREASON UPON A JURY TRIAL AND SENTENCED TO
DEATH.  18 U.S.C. SEC. 2.  THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT, SITTING EN BANC, AFFIRMED THE CONVICTION, 133 F.2D 87, AND
AFTER CAREFUL CONSIDERATION OF THE CASE WE DENIED CERTIORARI.  318 U.S.
781, REHEARING DENIED, 319 U.S. 783.  HE NOW CONTENDS THAT, IN ADDITION
TO THE APPELLATE REVIEW WHICH HE HAS ALREADY OBTAINED, HE IS ENTITLED
TO AN APPEAL AS OF RIGHT FROM THE DISTRICT COURT DIRECTLY TO THIS
COURT, IN VIEW OF THE PROVISIONS OF 18 U.S.C. SEC. 681, WHICH IN TERMS
AUTHORIZES SUCH AN APPEAL "IN ALL CASES OF CONVICTION OF CRIME THE
PUNISHMENT OF WHICH PROVIDED BY LAW IS DEATH, TRIED BEFORE ANY COURT OF
THE UNITED STATES." 

THIS SECTION OF THE CODE HAS ITS ORIGIN IN SEC. 6 OF THE ACT OF
FEBRUARY 6, 1889, 25 STAT. 655, 656, WHICH GRANTED A WRIT OF ERROR AS
OF RIGHT FROM THIS COURT TO ANY FEDERAL TRIAL COURT "IN ALL CASES OF
CONVICTION OF CRIME THE PUNISHMENT OF WHICH PROVIDED BY LAW IS DEATH." 
THIS PROVISION PRECEDED THE CREATION OF CIRCUIT COURTS OF APPEALS BY
THE ACT OF MARCH 3, 1891, 26 STAT. 826.  SEE UNITED STATES V. RIDER,
163 U.S. 132, 138.  SECTION 5 OF THE LATTER ACT PROVIDED THAT APPEALS
BE TAKEN FROM DISTRICT COURTS (OR THE EXISTING CIRCUIT COURTS) DIRECTLY
TO THIS COURT IN SIX SPECIFIED CLASSES OF CASES, ONE OF WHICH WAS "IN
CASES OF CONVICTION OF A CAPITAL OR OTHERWISE INFAMOUS CRIME"; AND BY
SEC. 6 IT WAS PROVIDED THAT THE CIRCUIT COURTS OF APPEALS SHOULD
EXERCISE APPELLATE JURISDICTION "IN ALL CASES OTHER THAN THOSE PROVIDED
FOR IN THE PRECEDING SECTION OF THIS ACT, UNLESS OTHERWISE PROVIDED BY
LAW." 

THE ACT OF JANUARY 20, 1897, 29 STAT. 492, WITHDREW FROM THIS COURT
AND TRANSFERRED TO THE CIRCUIT COURTS OF APPEALS APPELLATE JURISDICTION
IN CRIMINAL CASES NOT CAPITAL.  THIS WAS ACCOMPLISHED BY DELETING, FROM
THE CLAUSE OF SEC. 5 OF THE ACT OF MARCH 3, 1891, JUST QUOTED, THE
PHRASE "OR OTHERWISE INFAMOUS," SO THAT THE DIRECT APPEAL TO THIS COURT
WAS PRESERVED ONLY "IN CASES OF CONVICTION OF A CAPITAL CRIME." 

CODE.  ACT OF MARCH 3, 1911, 36 STAT. 1087.  SECTION 238 OF THE
JUDICIAL CODE (36 STAT. 1157), WHICH IN CONNECTION WITH SEC. 236(36
STAT. 1156) DEFINED THE JURISDICTION OF THIS COURT ON DIRECT APPEALS
FROM DISTRICT COURTS, SET FORTH THE SUBSTANCE OF SEC. 5 OF THE ACT OF
MARCH 3, 1891, EXCEPT THAT IT OMITTED THE CLAUSE PROVIDING FOR APPEALS
FROM THE TRIAL COURT TO THIS COURT "IN CASES OF CONVICTION OF A CAPITAL
CRIME."  THIS OMISSION WAS NOT ACCIDENTAL, BUT DELIBERATE, AND ITS
PURPOSE WAS TO WITHDRAW THE JURISDICTION OF THIS COURT TO ENTERTAIN A
DIRECT APPEAL FROM A DISTRICT COURT IN A CAPITAL CASE.  THIS MAY BE
SEEN FROM THE NOTES OF THE REVISERS, WHICH STATE: 

"THE ONLY CHANGE MADE IN THE SECTION IS IN STRIKING OUT THE WORDS 'IN
CASES OF CONVICTION OF A CAPITAL CRIME.'  THE EFFECT OF THIS IS TO TAKE
FROM THE SUPREME COURT JURISDICTION IN CAPITAL CASES AND TO TRANSFER
THE JURISDICTION IT NOW POSSESSES TO THE CIRCUIT COURTS OF APPEALS." 
S. REP. NO. 388, PART 1, 61ST CONG., 2D SESS., P. 77; AND ALSO H.R.
DOC. NO. 783, PART 1, 61ST CONG., 2D SESS., P. 81.  CONSISTENTLY WITH
THIS PURPOSE, SEC. 128 OF THE JUDICIAL CODE PROVIDED (36 STAT. 1133)
THAT "THE CIRCUIT COURTS OF APPEALS SHALL EXERCISE APPELLATE
JURISDICTION  ...  IN ALL CASES OTHER THAN THOSE IN WHICH APPEALS AND
WRITS OF ERROR MAY BE TAKEN DIRECT TO THE SUPREME COURT, AS PROVIDED IN
LAW."  AND SEC. 297 DIRECTED (36 STAT. 1169) THAT "ALL OTHER ACTS AND
PARTS OF ACTS, IN SO FAR AS THEY ARE EMBRACED WITHIN AND SUPERSEDED BY
THIS ACT, ARE HEREBY REPEALED." 

SUCH A PLAIN PURPOSE, ESTABLISHED BOTH BY LANGUAGE OF THE JUDICIAL
CODE AND ITS LEGISLATIVE HISTORY, CANNOT BE IGNORED.  OUR APPELLATE
JURISDICTION IS DEFINED BY STATUTE (EX PARTE MCCARDLE, 7 WALL.  506,
512; THE FRANCIS WRIGHT, 105 U.S. 381, 386; ST. LOUIS, I.M. & S. RY.
CO. V. TAYLOR, 210 U.S. 281, 292) AND IT IS EVIDENT THAT SINCE 1911 THE
STATUTES HAVE NOT AUTHORIZED A DIRECT APPEAL TO THIS COURT IN CAPITAL
CASES.  THE FACT THAT THE WORDS OF 18 U.S.C. SEC. 681 HAVE LINGERED ON
IN THE SUCCESSIVE EDITIONS OF THE U.S.C. IS IMMATERIAL.  BY 1 U.S.C.
SEC. 54(A), THE CODE ESTABLISHES "PRIMA FACIE" THE LAWS OF THE UNITED
STATES.  BUT THE VERY MEANING OF "PRIMA FACIE" IS THAT THE CODE CANNOT
PREVAIL OVER THE STATUTES AT LARGE WHEN THE TWO ARE INCONSISTENT.  CF.
WARNER V. GOLTRA, 293 U.S. 155, 161; CLOVERLEAF CO. V. PATTERSON, 315
U.S. 148, 164, N. 16. 

ACCORDINGLY THE APPLICATION FOR LEAVE TO APPEAL IS DENIED, AND THE
STAY HERETOFORE GRANTED IS VACATED.  SO ORDERED. 
..END :







BUCHALTER V. NEW YORK, 319 U.S. 427 


NO. 606.  ARGUED MAY 7, 10, 1943.  - DECIDED JUNE 1, 1943.  - 289 N.Y.
181, 45 N.E.2D 225, AFFIRMED. 


1.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES THAT
STATE ACTION BE CONSISTENT WITH FUNDAMENTAL PRINCIPLES OF LIBERTY AND
JUSTICE, BUT DOES NOT DRAW TO ITSELF THE PROVISIONS OF STATE
CONSTITUTIONS OR STATE LAWS.  P. 429. 

2.  UPON REVIEW HERE OF JUDGMENTS OF CONVICTION IN A CRIMINAL CASE IN
A STATE COURT, CHALLENGED BY THE DEFENDANTS AS DENYING THEIR
CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT, HELD: 

(1)  THE RECORD FAILS TO ESTABLISH ACTUAL BIAS ON THE PART OF THE
JURY.  P. 430. 

(2)  THE CONTENTION THAT THE STATUTE GOVERNING THE SELECTION OF
JURORS AND THE COURT'S RULINGS ON CHALLENGES WORKED INJUSTICE IN THE
IMPANELLING OF THE JURY RAISES NO REVIEWABLE QUESTION OF DUE PROCESS. 
P. 430. 

(3)  THE CHALLENGED RULINGS UPON EVIDENCE AND INSTRUCTIONS TO THE
JURY DID NOT DEPRIVE THE DEFENDANTS OF A TRIAL ACCORDING TO THE
ACCEPTED COURSE OF LEGAL PROCEEDINGS.  P. 430. 

(4)  THE CONTENTION THAT THE PROSECUTING ATTORNEY UNFAIRLY SUPPRESSED
EVIDENCE IS WITHOUT MERIT.  P. 431. 

(5)  THE REMARKS OF THE PROSECUTING ATTORNEY TO THE JURY, HERE
COMPLAINED OF, DO NOT RAISE A DUE PROCESS QUESTION.  P. 431. 

3.  ESSENTIAL UNFAIRNESS IN A CRIMINAL TRIAL MUST BE SHOWN
CONVINCINGLY AND NOT LEFT TO SPECULATION.  P. 431. 

BUCHALTER V. NEW YORK* . 

*TOGETHER WITH NO. 610, WEISS V. NEW YORK, ON WRIT OF CERTIORARI, 318
U.S. 797, TO THE COURT OF APPEALS OF NEW YORK, AND NO. 619, CAPONE V.
NEW YORK, ON WRIT OF CERTIORARI, 318 U.S. 797, TO THE COUNTY COURT OF
KINGS COUNTY, NEW YORK. 

CERTIORARI TO THE COUNTY COURT OF KINGS COUNTY, NEW YORK. 

CERTIORARI, 318 U.S. 797, TO REVIEW THE AFFIRMANCE OF JUDGMENTS OF
CONVICTION OF MURDER. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE CONVICTED OF FIRST DEGREE MURDER IN THE COUNTY
COURT OF KINGS COUNTY, NEW YORK, AFTER A TRIAL LASTING OVER NINE
WEEKS.  THE PRINTED RECORD CONSISTS OF OVER TWELVE THOUSAND PAGES.  THE
JUDGMENTS WERE AFFIRMED BY THE COURT OF APPEALS OF THE STATE.  FN1
NUMEROUS ERRORS WERE THERE ASSIGNED.  FOUR OPINIONS WERE WRITTEN, TWO
OF WHICH DISSENTED FROM THE JUDGMENTS OF AFFIRMANCE, AS TO WHICH THE
COURT DIVIDED FOUR TO THREE.  IN HIS CONCURRING OPINION THE CHIEF JUDGE
SAID THAT HE AGREED WITH ONE OF THE DISSENTING OPINIONS THAT ERRORS AND
DEFECTS OCCURRED IN THE TRIAL WHICH COULD NOT BE "DISREGARDED WITHOUT
HESITATION LEST IN OUR ANXIETY THAT THE GUILTY SHOULD NOT ESCAPE
PUNISHMENT WE AFFIRM A JUDGMENT TAINTED WITH ERRORS OBTAINED THROUGH
VIOLATION OF FUNDAMENTAL RIGHTS."  HIS CONCLUSION WAS, HOWEVER, THAT
THE ERRORS DID NOT AFFECT THE VERDICT.  TWO DISSENTING JUDGES WERE OF
OPINION THAT SUCH SUBSTANTIAL ERROR WAS COMMITTED AS TO REQUIRE A
REVERSAL.  ONE JUDGE WAS OF OPINION THAT THE CONDUCT OF THE TRIAL WAS
SO GROSSLY UNFAIR AS TO LEAVE THE DEFENDANTS WITHOUT A REMOTE CHANCE OF
FREE CONSIDERATION OF THEIR DEFENSES BY THE JURY; SO UNFAIR AS TO
DEPRIVE THEM OF THE PRESUMPTION OF INNOCENCE AND THE REQUIREMENT OF
PROOF BEYOND A REASONABLE DOUBT. 

THE REMITTITURS OF THE COURT OF APPEALS RECITED THAT THE APPELLANTS
IN BRIEF AND ARGUMENT RAISED THE POINT THAT THEY HAD BEEN DENIED THEIR
CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES AND THAT THIS POINT WAS CONSIDERED
AND NECESSARILY DECIDED.  THE SAME CONTENTION WAS THE BASIS OF THE
PETITIONS FOR CERTIORARI. 

THE PETITIONERS RELY NOT ON ANY ONE CIRCUMSTANCE BUT INSIST THAT THEY
WERE NOT AFFORDED A FAIR AND IMPARTIAL JURY FREE FROM INFLUENCES
EXTRANEOUS TO THE PROOFS ADDUCED AT THE TRIAL; THAT THEY WERE DEPRIVED
OF AN IMPARTIAL AND UNBIASED JUDGE TO PRESIDE AT THE TRIAL AND THAT THE
PROSECUTOR RESORTED TO UNFAIR METHODS TO INFLUENCE THE JURY. 

THIS COURT GRANTED CERTIORARI IN ORDER THAT THE PETITIONERS' CLAIMS
OF DENIAL OF A FEDERAL RIGHT MIGHT BE EXAMINED IN THE LIGHT OF THE
RECORD WITH THE AID OF BRIEFS AND ORAL ARGUMENT.  AS THE OPINIONS
RENDERED IN THE COURT BELOW STATE THE FACTS AND DISCUSS THE ALLEGED
TRIAL ERRORS IN DETAIL WE NEED NOT RESTATE THEM. 

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES THAT
ACTION BY A STATE THROUGH ANY OF ITS AGENCIES MUST BE CONSISTENT WITH
THE FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE WHICH LIE AT THE BASE
OF OUR CIVIL AND POLITICAL INSTITUTIONS, WHICH NOT INFREQUENTLY ARE
DESIGNATED AS "THE LAW OF THE LAND."  FN2  WHERE THIS REQUIREMENT HAS
BEEN DISREGARDED IN A CRIMINAL TRIAL IN A STATE COURT THIS COURT HAS
NOT HESITATED TO EXERCISE ITS JURISDICTION TO ENFORCE THE
CONSTITUTIONAL GUARANTEE.  FN3  BUT THE AMENDMENT DOES NOT DRAW TO
ITSELF THE PROVISIONS OF STATE CONSTITUTIONS  FN4  OR STATE LAWS.  FN5
IT LEAVES THE STATES FREE TO ENFORCE THEIR CRIMINAL LAWS UNDER SUCH
STATUTORY PROVISIONS AND COMMON LAW DOCTRINES AS THEY DEEM APPROPRIATE;
AND DOES NOT PERMIT A PARTY TO BRING TO THE TEST OF A DECISION IN THIS
COURT EVERY RULING MADE IN THE COURSE OF A TRIAL IN A STATE COURT. 
FN6 

THE PETITIONERS ASSERT THAT, IN VIEW OF UNFAIR AND LURID NEWSPAPER
PUBLICITY, IT WAS IMPOSSIBLE TO OBTAIN AN IMPARTIAL JURY IN THE COUNTY
OF TRIAL, AND THAT THE RULINGS OF THE COURT DENYING A CHANGE OF VENUE,
AND ON CHALLENGES TO PROSPECTIVE JURORS, RESULTED IN THE IMPANELLING OF
A JURY AFFECTED WITH BIAS.  WE HAVE EXAMINED THE RECORD AND ARE UNABLE,
AS THE COURT BELOW WAS, TO CONCLUDE THAT A CONVINCING SHOWING OF ACTUAL
BIAS ON THE PART OF THE JURY WHICH TRIED THE DEFENDANTS IS
ESTABLISHED.  THOUGH THE STATUTE GOVERNING THE SELECTION OF THE JURORS
AND THE COURT'S RULINGS ON CHALLENGES ARE ASSERTED TO HAVE WORKED
INJUSTICE IN THE IMPANELLING OF A JURY, SUCH ASSERTION RAISES NO DUE
PROCESS QUESTION REQUIRING REVIEW BY THIS COURT.  FN7 

THE PETITIONERS INSIST THAT THE RULINGS UPON EVIDENCE AND
INSTRUCTIONS TO THE JURY, WHEN TAKEN IN THEIR TOTALITY, INDICATE THAT,
WHATEVER THE INTENTION OF THE TRIAL JUDGE, HIS RULINGS AND ATTITUDE
PRECLUDED A FAIR CONSIDERATION OF THE CASE.  THE COURT OF APPEALS HELD
THAT CERTAIN OF THE CHALLENGED RULINGS AND INSTRUCTIONS WERE ERRONEOUS
BUT THAT THE ERRORS WERE NOT SUBSTANTIAL IN THE SENSE THAT THEY
AFFECTED THE ABILITY OF THE JURY TO RENDER AN IMPARTIAL VERDICT, AND
THAT OTHERS OF THE ALLEGED ERRORS WERE NOT SUCH UNDER THE LAW OF NEW
YORK.  AS ALREADY STATED, THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT DOES NOT ENABLE US TO REVIEW ERRORS OF STATE LAW HOWEVER
MATERIAL UNDER THAT LAW.  WE ARE UNABLE TO FIND THAT THE RULINGS AND
INSTRUCTIONS UNDER ATTACK CONSTITUTED MORE THAN ERRORS AS TO STATE
LAW.  WE CANNOT SAY THAT THEY WERE SUCH AS TO DEPRIVE THE PETITIONERS
OF A TRIAL ACCORDING TO THE ACCEPTED COURSE OF LEGAL PROCEEDINGS. 

FINALLY, THE PETITIONERS ASSERT THAT THE PROSECUTING OFFICER, BY
SUPPRESSION OF EVIDENCE, AND BY STATEMENTS IN HIS ADDRESSES TO THE
JURY, WAS SO UNFAIR AS TO DEPRIVE THE TRIAL OF THE ESSENTIAL QUALITY OF
AN IMPARTIAL INQUIRY INTO THEIR GUILT.  THE POINT AS TO THE ALLEGED
SUPPRESSION OF EVIDENCE IS WITHOUT MERIT.  CERTAIN DOCUMENTARY EVIDENCE
WAS IN COURT.  THE JUDGE RULED THAT THE PROSECUTING OFFICER NEED NOT
SUBMIT IT TO DEFENSE COUNSEL FOR EXAMINATION.  IF THERE WAS ERROR IN
THE RULING, IT WAS ERROR OF THE COURT.  UPON MOTION FOR REHEARING THE
COURT OF APPEALS EXAMINED THE PAPERS AND FOUND THAT THEY WERE NOT OF
SIGNIFICANCE IN RESPECT OF ANY ISSUE IN THE CASE.  NO SUCH SHOWING OF
SUPPRESSION OF EVIDENCE OR CONNIVANCE AT PERJURY, AS HAS HERETOFORE
BEEN HELD TO REQUIRE CORRECTIVE PROCESS ON THE PART OF THE STATE,  FN8
WAS SHOWN. 

THE SPEECHES OF COUNSEL FOR DEFENDANTS APPARENTLY PROVOKED STATEMENTS
BY THE DISTRICT ATTORNEY OF WHICH PETITIONERS NOW COMPLAIN.  THIS DOES
NOT RAISE A DUE PROCESS QUESTION. 

AS WE HAVE RECENTLY SAID, "IT IS NOT ASKING TOO MUCH THAT THE BURDEN
OF SHOWING ESSENTIAL UNFAIRNESS BE SUSTAINED BY HIM WHO CLAIMS SUCH
INJUSTICE AND SEEKS TO HAVE THE RESULT SET ASIDE, AND THAT IT BE
SUSTAINED NOT AS A MATTER OF SPECULATION BUT AS A DEMONSTRABLE
REALITY.  FN9 

THE JUDGMENTS ARE AFFIRMED. 

FN1  289 N.Y. 181, 45 N.E.2D 225, 248; REHEARING DENIED 289 N.Y. 244,
45 N.E.2D 425. 

FN2  HEBERT V. LOUISIANA, 272 U.S. 312, 316.  SEE ALSO:  IN RE
KEMMLER, 136 U.S. 436, 448; CALDWELL V. TEXAS, 137 U.S. 692, 697;
LISENBA V. CALIFORNIA, 314 U.S. 219, 236. 

FN3  MOORE V. DEMPSEY, 261 U.S. 86; POWELL V. ALABAMA, 287 U.S. 45;
BROWN V. MISSISSIPPI, 297 U.S. 278; AVERY V. ALABAMA, 308 U.S. 444;
CHAMBERS V. FLORIDA, 309 U.S. 227; WHITE V. TEXAS, 310 U.S. 530; SMITH
V. O'GRADY, 312 U.S. 329; WARD V. TEXAS, 316 U.S. 547. 

FN4  RAWLINS V. GEORGIA, 201 U.S. 638; PATTERSON V. COLORADO, 205
U.S. 454, 459; HEBERT V. LOUISIANA, SUPRA, 316. 

FN5  LEEPER V. TEXAS, 139 U.S. 462; RAWLINS V. GEORGIA, SUPRA. 

FN6  AVERY V. ALABAMA, SUPRA, 446-447; LEEPER V. TEXAS, SUPRA; HOWARD
V. NORTH CAROLINA, 191 U.S. 126, 136, 137; BURT V. SMITH, 203 U.S. 129,
135; BARRINGTON V. MISSOURI, 205 U.S. 483, 488; UGHBANKS V. ARMSTRONG,
208 U.S. 481, 487; CALDWELL V. TEXAS, SUPRA, 697; HEBERT V. LOUISIANA,
SUPRA, 316. 

FN7 HAYES V. MISSOURI, 120 U.S. 68, 71; SPIES V. ILLINOIS, 123 U.S.
131, 168; RAWLINS V. GEORGIA, SUPRA; FRANKLIN V. SOUTH CAROLINA, 218
U.S. 161, 168. 

FN8  MOONEY V. HOLOHAN, 294 U.S. 103. 

FN9  ADAMS V. MCCANN, 317 U.S. 269, 281. 

MR. JUSTICE BLACK, SUBSTANTIALLY AGREEING WITH THESE VIEWS, IS OF
OPINION THAT THE PETITIONS SHOULD BE DISMISSED. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :













KOREMATSU V. UNITED STATES, 319 U.S. 432 


NO. 912.  ARGUED MAY 11, 1943.  - DECIDED JUNE 1, 1943. 


AN ORDER OF THE DISTRICT COURT PLACING A CONVICTED DEFENDANT ON
PROBATION WITHOUT IMPOSING SENTENCE OF IMPRISONMENT OR FINE IS A FINAL
DECISION REVIEWABLE BY THE CIRCUIT COURT OF APPEALS UNDER JUD.  CODE
SEC. 239.  PP. 433, 436. 

KOREMATSU V. UNITED STATES. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

RESPONSE TO A QUESTION CERTIFIED BY THE CIRCUIT COURT OF APPEALS IN A
CRIMINAL CASE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

KOREMATSU WAS FOUND GUILTY BY THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA OF REMAINING IN THE CITY OF SAN LEANDRO,
CALIFORNIA, IN VIOLATION OF 18 U.S.C. SEC. 97(A) AND THE ORDERS ISSUED
THEREUNDER.  FN1  THE DISTRICT COURT'S ORDER WAS THAT HE "BE PLACED ON
PROBATION FOR THE PERIOD OF FIVE (5) YEARS, THE TERMS AND CONDITIONS OF
THE PROBATION TO BE STATED TO SAID DEFENDANT BY THE PROBATION OFFICER
OF THIS COURT.  FURTHER ORDERED THAT THE BOND HERETOFORE GIVEN FOR THE
APPEARANCE OF THE DEFENDANT BE EXONERATED.  ORDERED PRONOUNCING OF
JUDGMENT BE SUSPENDED." 

THE DEFENDANT APPEALED TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT, WHICH UNDER 28 U.S.C. SEC. 225 HAS "JURISDICTION TO REVIEW BY
APPEAL FINAL DECISIONS."  THE CIRCUIT COURT OF APPEALS, DOUBTING
WHETHER IT HAD JURISDICTION TO HEAR AN APPEAL FROM AN ORDER PLACING THE
DEFENDANT ON PROBATION WITHOUT FIRST FORMALLY SENTENCING HIM, HAS
CERTIFIED TO US THE FOLLOWING QUESTION UNDER SEC. 239 OF THE JUDICIAL
CODE: 

"AFTER A FINDING OF GUILT IN SUCH A CRIMINAL PROCEEDING AS THE
INSTANT CASE, IN WHICH NEITHER IMPRISONMENT IN A JAIL OR PENITENTIARY
NOR A FINE IS IMPOSED, IS AN ORDER BY THE DISTRICT COURT, THAT THE
CONVICTED MAN 'BE PLACED ON PROBATION FOR THE PERIOD OF FIVE (5) YEARS'
A FINAL DECISION REVIEWABLE ON APPEAL BY THIS CIRCUIT COURT OF
APPEALS?" 

THE FEDERAL PROBATION LAW AUTHORIZES A DISTRICT JUDGE "AFTER
CONVICTION OR AFTER A PLEA OF GUILTY OR NOLO CONTENDERE  ...  TO
SUSPEND THE IMPOSITION OR EXECUTION OF SENTENCE AND TO PLACE THE
DEFENDANT UPON PROBATION FOR SUCH PERIOD AND UPON SUCH TERMS" AS SEEM
WISE.  18 U.S.C. SEC. 724.  IN BERMAN V. UNITED STATES, 302 U.S. 211,
WE HELD THAT WHEN A COURT HAD IMPOSED A SENTENCE AND THEN SUSPENDED ITS
EXECUTION, THE JUDGMENT WAS FINAL AND WOULD SUPPORT AN APPEAL.  THE
QUESTION HERE IS WHETHER THE JUDGMENT IS EQUALLY FINAL WHEN THE
IMPOSITION OF SENTENCE ITSELF IS SUSPENDED AND THE DEFENDANT SUBJECTED
TO PROBATION.  FN2  THE GOVERNMENT CONCEDES THAT THIS QUESTION SHOULD
BE ANSWERED IN THE AFFIRMATIVE. 

IT HAS OFTEN BEEN SAID THAT THERE CAN BE NO "FINAL JUDGMENT" IN A
CRIMINAL CASE PRIOR TO ACTUAL SENTENCE, MILLER V. ADERHOLD, 288 U.S.
206, 210; HILL V. WAMPLER, 298 U.S. 460, 464, AND THIS PROPOSITION WAS
RESTATED IN BERMAN V. UNITED STATES, 302 U.S. 211, 212.  FN3  IN
APPLYING THIS GENERAL PRINCIPLE TO A SITUATION LIKE THAT OF THE INSTANT
CASE, THE SECOND AND FOURTH CIRCUIT COURTS OF APPEALS HAVE CONCLUDED
THAT THEY LACKED JURISDICTION TO HEAR AN APPEAL FROM AN ORDER PLACING A
DEFENDANT ON PROBATION WITHOUT FIRST IMPOSING SENTENCE.  UNITED STATES
V. LECATO, 29 F.2D 694, 695; BIRNBAUM V. UNITED STATES, 107 F.2D 885. 
THE FIFTH CIRCUIT APPEARS TO TAKE THE OPPOSITE VIEW.  NIX V. UNITED
STATES, 131 F.2D 857. 

THE "SENTENCE IS JUDGMENT" PHRASE HAS BEEN USED BY THIS COURT IN
DEALING WITH CASES IN WHICH THE ACTION OF THE TRIAL COURT DID NOT IN
FACT SUBJECT THE DEFENDANT TO ANY FORM OF JUDICIAL CONTROL.  THUS IN
MILLER V. ADERHOLD, SUPRA, IMPOSITION OF SENTENCE WAS SUSPENDED AND THE
DEFENDANT WAS PUT UNDER NO OBLIGATON AT ALL.  HENCE THE COURT HELD THAT
THERE WAS NO JURISDICTION TO HEAR THE APPEAL.  BUT CERTAINLY WHEN
DISCIPLINE HAS BEEN IMPOSED, THE DEFENDANT IS ENTITLED TO REVIEW. 

IN THE BERMAN CASE, SUPRA, WE HELD THAT THE APPEAL WAS PROPER WHERE
THE SENTENCE WAS IMPOSED AND SUSPENDED, AND THE DEFENDANT WAS PLACED ON
PROBATION.  THE PROBATIONARY SURVEILLANCE IS THE SAME WHETHER OR NOT
SENTENCE IS IMPOSED.  IN EITHER CASE, THE PROBATION ORDER FOLLOWS A
FINDING OF GUILT OR A PLEA OF NOLO CONTENDERE.  THEREAFTER, THE
DEFENDANT MUST ABIDE BY THE ORDER FOLLOWS A FINDING OF GUILT OR A PLEA
OF NOLO CONDITIONS IMPOSED UPON HIM, OR SUBJECT HIMSELF TO A POSSIBLE
REVOCATION OR MODIFICATION OF HIS PROBATION; AND UNDER SOME
CIRCUMSTANCES HE MAY, DURING THE PROBATIONARY PERIOD, BE REQUIRED TO
PAY A FINE, OR MAKE REPARATION TO AGGRIEVED PARTIES, OR PROVIDE FOR THE
SUPPORT OF PERSONS FOR WHOM HE IS LEGALLY RESPONSIBLE.  18 U.S.C. SEC.
724.  HE IS UNDER THE "SUPERVISION" OF THE PROBATION OFFICER WHOSE DUTY
IT IS TO MAKE REPORTS TO THE COURT CONCERNING HIS ACTIVITIES, 18 U.S.C.
SEC. 727, AND AT "ANY TIME WITHIN THE PROBATION PERIOD THE PROBATION
OFFICER MAY ARREST THE PROBATIONER WHEREVER FOUND, WITHOUT A WARRANT,
OR THE COURT WHICH HAS GRANTED THE PROBATION MAY ISSUE A WARRANT FOR
HIS ARREST."  18 U.S.C. SEC. 725.  THESE AND OTHER INCIDENTS OF
PROBATION EMPHASIZE THAT A PROBATION ORDER IS "AN AUTHORIZED MODE OF
MILD AND AMBULATORY PUNISHMENT, THE PROBATION BEING INTENDED AS A
REFORMING DISCIPLINE."  COOPER V. UNITED STATES, 91 F.2D 195, 199. 

THE DIFFERENCE TO THE PROBATIONER BETWEEN IMPOSITION OF SENTENCE
FOLLOWED BY PROBATION, AS IN THE BERMAN CASE, AND SUSPENSION OF THE
IMPOSITION OF SENTENCE, AS IN THE INSTANT CASE, IS ONE OF TRIFLING
DEGREE.  PROBATION, LIKE PAROLE, "IS INTENDED TO BE A MEANS OF
RESTORING OFFENDERS WHO ARE GOOD SOCIAL RISKS TO SOCIETY; TO AFFORD THE
UNFORTUNATE ANOTHER OPPORTUNITY BY CLEMENCY," ZERBST V. KIDWELL, 304
U.S. 359, 363, AND THIS END IS SERVED IN THE SAME FASHION WHETHER OR
NOT PROBATION IS PRECEDED BY IMPOSITION OF SENTENCE.  IN EITHER CASE,
THE LIBERTY OF AN INDIVIDUAL JUDICIALLY DETERMINED TO HAVE COMMITTED AN
OFFENSE IS ABRIDGED IN THE PUBLIC INTEREST.  "IN CRIMINAL CASES, AS
WELL AS CIVIL, THE JUDGMENT IS FINAL FOR THE PURPOSE OF APPEAL 'WHEN IT
TERMINATES THE LITIGATION  ...  ON THE MERITS' AND 'LEAVES NOTHING TO
BE DONE BUT TO ENFORCE BY EXECUTION WHAT HAS BEEN DETERMINED.'"  BERMAN
V. UNITED STATES, SUPRA, 212, 213.  HERE LITIGATION "ON THE MERITS" OF
THE CHARGE AGAINST THE DEFENDANT HAS NOT ONLY ENDED IN A DETERMINATION
OF GUILT, BUT IT HAS BEEN FOLLOWED BY THE INSTITUTION OF THE
DISCIPLINARY MEASURES WHICH THE COURT HAS DETERMINED TO BE NECESSARY
FOR THE PROTECTION OF THE PUBLIC. 

THESE CONSIDERATIONS LEAD US TO CONCLUDE THAT THE ORDER IS FINAL AND
APPEALABLE.  OUR ANSWER TO THE QUESTION IS YES. 

FN1  THE RELEVANT ORDERS ARE EXECUTIVE ORDER 9066, FEB. 19, 1942, 7
FED. REG. 1407, AND GENERAL DEWITT'S PUBLIC PROCLAMATION NO. 1, MARCH
2, 1942, AND CIVILIAN EXCLUSION ORDER NO. 34, MAY 3, 1942, ISSUED UNDER
AUTHORITY OF THE EXECUTIVE ORDER. 

FN2  FOR THE BACKGROUND OF THE PROBATION LEGISLATION, SEE EX PARTE
UNITED STATES, 242 U.S. 27; UNITED STATES V. MURRAY, 275 U.S. 347. 
CASES ON THE INSTANT PROBLEM ARE COLLECTED AT 126 A.L.R. 1207. 

FN3  "FINAL JUDGMENT IN A CRIMINAL CASE MEANS SENTENCE.  THE SENTENCE
IS THE JUDGMENT." 
..END :










MOLINE PROPERTIES V. COMM'R, 319 U.S. 436 


NO. 660.  ARGUED APRIL 16, 19, 1943.  - DECIDED JUNE 1, 1943.  - 131
F.2D 388, AFFIRMED. 


1.  UPON THE FACTS OF THIS CASE, HELD THAT, FOR THE PURPOSE OF THE
FEDERAL INCOME TAX, GAINS FROM SALES (IN 1935 AND 1936) BY A
CORPORATION OF ITS PROPERTY, ALTHOUGH THE CORPORATION WAS OWNED WHOLLY
BY AN INDIVIDUAL STOCKHOLDER, COULD NOT BE TREATED AS INCOME TAXABLE TO
THE INDIVIDUAL RATHER THAN TO THE CORPORATION.  P. 440. 

2.  THE CORPORATION IN THIS CASE WAS NOT A MERE AGENT OF THE
STOCKHOLDER.  P. 440. 

MOLINE PROPERTIES, INC. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 318 U.S. 751, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 45 B.T.A. 647, THAT THERE WERE NO DEFICIENCIES IN
THE CORPORATE TAXPAYER'S INCOME AND EXCESS-PROFITS TAXES. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER SEEKS TO HAVE THE GAIN ON SALES OF ITS REAL PROPERTY
TREATED AS THE GAIN OF ITS SOLE STOCKHOLDER AND ITS CORPORATE EXISTENCE
IGNORED AS MERELY FICTITIOUS.  CERTIORARI WAS GRANTED BECAUSE OF THE
VOLUME OF SIMILAR LITIGATION IN THE LOWER COURTS AND BECAUSE OF ALLEGED
CONFLICT OF THE DECISION BELOW WITH OTHER CIRCUIT COURT DECISIONS. 
FN1 

PETITIONER WAS ORGANIZED BY ULY O. THOMPSON IN 1928 TO BE USED AS A
SECURITY DEVICE IN CONNECTION WITH CERTAIN FLORIDA REALTY OWNED BY
HIM.  THE MORTGAGEE OF THE PROPERTY SUGGESTED THE ARRANGEMENT, UNDER
WHICH MR. THOMPSON CONVEYED THE PROPERTY TO PETITIONER, WHICH ASSUMED
THE OUTSTANDING MORTGAGES ON THE PROPERTY, RECEIVING IN RETURN ALL BUT
THE QUALIFYING SHARES OF STOCK, WHICH HE IN TURN TRANSFERRED TO A
VOTING TRUSTEE APPOINTED BY THE CREDITOR.  THE STOCK WAS TO BE HELD AS
SECURITY FOR AN ADDITIONAL LOAN TO MR. THOMPSON TO BE USED TO PAY BACK
TAXES ON THE PROPERTY.  THOMPSON OWNED OTHER REAL PROPERTY, TITLE TO
WHICH HE HELD INDIVIDUALLY.  IN 1933 THE LOAN WHICH OCCASIONED THE
CREATION OF PETITIONER WAS REPAID AND THE MORTGAGES WERE REFINANCED
WITH A DIFFERENT MORTGAGEE; CONTROL OF PETITIONER REVERTED TO MR.
THOMPSON.  THE NEW MORTGAGE DEBT WAS PAID IN 1936 BY MEANS OF A SALE OF
A PORTION OF THE PROPERTY HELD BY PETITIONER.  THE REMAINING HOLDINGS
OF THE PETITIONER WERE SOLD IN THREE PARCELS, ONE EACH IN 1934, 1935
AND 1936, THE PROCEEDS BEING RECEIVED BY MR. THOMPSON AND DEPOSITED IN
HIS BANK ACCOUNT. 

UNTIL 1933 THE BUSINESS DONE BY THE CORPORATION CONSISTED OF THE
ASSUMPTION OF A CERTAIN OBLIGATION OF THOMPSON TO THE ORIGINAL
CREDITOR, THE DEFENSE OF CERTAIN CONDEMNATION PROCEEDINGS AND THE
INSTITUTION OF A SUIT TO REMOVE RESTRICTIONS IMPOSED ON THE PROPERTY BY
A PRIOR DEED.  THE EXPENSES OF THIS SUIT WERE PAID BY THOMPSON.  IN
1934 A PORTION OF THE PROPERTY WAS LEASED FOR USE AS A PARKING LOT FOR
A RENTAL OF $1,000.  PETITIONER HAS TRANSACTED NO BUSINESS SINCE THE
SALE OF ITS LAST HOLDINGS IN 1936 BUT HAS NOT BEEN DISSOLVED.  IT KEPT
NO BOOKS AND MAINTAINED NO BANK ACCOUNT DURING ITS EXISTENCE AND OWNED
NO OTHER ASSETS THAN AS DESCRIBED.  THE SALES MADE IN 1934 AND 1935
WERE REPORTED IN PETITIONER'S INCOME TAX RETURNS, A SMALL LOSS BEING
REPORTED FOR THE EARLIER YEAR AND A GAIN OF OVER $5,000 BEING REPORTED
FOR 1935.  SUBSEQUENTLY, ON ADVICE OF HIS AUDITOR, THOMPSON FILED A
CLAIM FOR REFUND ON PETITIONER'S BEHALF FOR 1935 AND SOUGHT TO REPORT
THE 1935 GAIN AS HIS INDIVIDUAL RETURN.  HE REPORTED THE GAIN ON THE
1936 SALE. 

THE QUESTION IS WHETHER THE GAIN REALIZED ON THE 1935 AND 1936 SALES
SHALL BE TREATED AS INCOME TAXABLE TO PETITIONER, AS THE GOVERNMENT
URGES, OR AS THOMPSON'S INCOME.  THE BOARD OF TAX APPEALS HELD FOR
PETITIONER ON THE GROUND THAT BECAUSE OF ITS LIMITED PURPOSE, THE
CORPORATION "WAS A MERE FIGMENTARY AGENT WHICH SHOULD BE DISREGARDED IN
THE ASSESSMENT OF TAXES."  MOLINE PROPERTIES V. COMMISSIONER, 45 B.T.A.
647.  THE CIRCUIT COURT OF APPEALS REVERSED ON THE GROUND THAT THE
CORPORATE ENTITY, CHOSEN BY THOMPSON FOR REASONS SUFFICIENT TO HIM,
MUST NOW BE RECOGNIZED IN THE TAXATION OF THE INCOME OF THE
CORPORATION.  COMMISSIONER V. MOLINE PROPERTIES, 131 F.2D 388. 

THE DOCTRINE OF CORPORATE ENTITY FILLS A USEFUL PURPOSE IN BUSINESS
LIFE.  WHETHER THE PURPOSE BE TO GAIN AN ADVANTAGE UNDER THE LAW OF THE
STATE OF INCORPORATION  FN2  OR TO AVOID  FN3  OR TO COMPLY WITH  FN4
THE DEMANDS OF CREDITORS OR TO SERVE THE CREATOR'S PERSONAL OR
UNDISCLOSED CONVENIENCE,  FN5  SO LONG AS THAT PURPOSE IS THE
EQUIVALENT OF BUSINESS ACTIVITY OR IS FOLLOWED BY THE CARRYING ON OF
BUSINESS BY THE CORPORATION, THE CORPORATION REMAINS A SEPARATE TAXABLE
ENTITY.  NEW COLONIAL CO. V. HELVERING, 292 U.S. 435, 442; DEPUTY V. DU
PONT, 308 U.S. 488, 494.  IN BURNET V. COMMONWEALTH IMPROVEMENT CO.,
287 U.S. 415, THIS COURT APPRAISED THE RELATION BETWEEN A CORPORATION
AND ITS SOLE STOCKHOLDER AND HELD TAXABLE TO THE CORPORATION A PROFIT
ON A SALE TO ITS STOCKHOLDER.  THIS WAS BECAUSE THE TAXPAYER HAD
ADOPTED THE CORPORATE FORM FOR PURPOSES OF HIS OWN.  THE CHOICE OF THE
ADVANTAGES OF INCORPORATION TO DO BUSINESS, IT WAS HELD, REQUIRED THE
ACCEPTANCE OF THE TAX DISADVANTAGES. 

TO THIS RULE THERE ARE RECOGNIZED EXCEPTIONS.  SOUTHERN PACIFIC CO.
V. LOWE, 247 U.S. 330, AND GULF OIL CORP. V. LEWELLYN, 248 U.S. 71,
HAVE BEEN RECOGNIZED AS SUCH EXCEPTIONS BUT HELD TO LAY DOWN NO RULE
FOR TAX PURPOSES.  NEW COLONIAL CO. V. HELVERING, SUPRA, 442, N. 5;
BURNET V. COMMONWEALTH IMPROVEMENT CO., SUPRA, 419, 420.  A PARTICULAR
LEGISLATIVE PURPOSE, SUCH AS THE DEVELOPMENT OF THE MERCHANT MARINE,
WHATEVER THE CORPORATE DEVICE FOR OWNERSHIP, MAY CALL FOR THE
DISREGARDING OF THE SEPARATE ENTITY, MUNSON S.S. LINE V. COMMISSIONER,
77 F.2D 849, AS MAY THE NECESSITY OF STRIKING DOWN FRAUDS ON THE TAX
STATUTE, CONTINENTAL OIL CO. V. JONES, 113 F.2D 557.  IN GENERAL, IN
MATTERS RELATING TO THE REVENUE, THE CORPORATE FORM MAY BE DISREGARDED
WHERE IT IS A SHAM OR UNREAL.  IN SUCH SITUATIONS THE FORM IS A BALD
AND MISCHIEVOUS FICTION.  HIGGINS V. SMITH, 308 U.S. 473, 477-78;
GREGORY V. HELVERING, 293 U.S. 465. 

THE PETITIONER CORPORATION WAS CREATED BY THOMPSON FOR HIS ADVANTAGE
AND HAD A SPECIAL FUNCTION FROM ITS INCEPTION.  AT THAT TIME IT WAS
CLEARLY NOT THOMPSON'S ALTER EGO AND HIS EXERCISE OF CONTROL OVER IT
WAS NEGLIGIBLE.  IT WAS THEN AS MUCH A SEPARATE ENTITY AS IF ITS STOCK
HAD BEEN TRANSFERRED OUTRIGHT TO THIRD PERSONS.  THE ARGUMENT IS MADE
BY PETITIONER THAT THE FORCE OF THE RULE REQUIRING ITS SEPARATE
TREATMENT IS AVOIDED BY THE FACT THAT THOMPSON WAS COERCED INTO
CREATING PETITIONER AND WAS COMPLETELY SUBSERVIENT TO THE CREDITORS. 
BUT THIS MERELY SERVES TO EMPHASIZE PETITIONER'S SEPARATE EXISTENCE. 
NEW COLONIAL CO. V. HELVERING, SUPRA, 441.  BUSINESS NECESSITY, I.E.,
PRESSURE FROM CREDITORS, MADE PETITIONER'S CREATION ADVANTAGEOUS TO
THOMPSON. 

WHEN PETITIONER DISCHARGED ITS MORTGAGES HELD BY THE INITIAL CREDITOR
AND THOMPSON CAME IN CONTROL IN 1933, IT WAS NOT DISSOLVED, BUT
CONTINUED ITS EXISTENCE, READY AGAIN TO SERVE HIS BUSINESS INTERESTS. 
IT AGAIN MORTGAGED ITS PROPERTY, DISCHARGED THAT NEW MORTGAGE, SOLD
PORTIONS OF ITS PROPERTY IN 1934 AND 1935 AND FILED INCOME TAX RETURNS
SHOWING THESE TRANSACTIONS.  IN 1934 PETITIONER ENGAGED IN AN
UNAMBIGUOUS BUSINESS VENTURE OF ITS OWN - IT LEASED A PART OF ITS
PROPERTY AS A PARKING LOT, RECEIVING A SUBSTANTIAL RENTAL.  THE FACTS,
IT SEEMS TO US, COMPEL THE CONCLUSION THAT THE TAXPAYER HAD A TAX
IDENTITY DISTINCT FROM ITS STOCKHOLDER. 

PETITIONER ADVANCES WHAT WE THINK IS BASICALLY THE SAME ARGUMENT OF
IDENTITY IN A DIFFERENT FORM.  IT URGES THAT IT IS A MERE AGENT FOR ITS
SOLE STOCKHOLDER AND "THEREFORE THE SAME TAX CONSEQUENCES FOLLOW AS IN
THE CASE OF ANY CORPORATE AGENT OR FIDUCIARY."  THERE WAS NO ACTUAL
CONTRACT OF AGENCY, NOR THE USUAL INCIDENTS OF AN AGENCY RELATIONSHIP. 
SURELY THE MERE FACT OF THE EXISTENCE OF A CORPORATION WITH ONE OR
SEVERAL STOCKHOLDERS, REGARDLESS OF THE CORPORATION'S BUSINESS
ACTIVITIES, DOES NOT MAKE THE CORPORATION THE AGENT OF ITS
STOCKHOLDERS.  THEREFORE THE QUESTION OF AGENCY OR NOT DEPENDS UPON THE
SAME LEGAL ISSUES AS DOES THE QUESTION OF IDENTITY PREVIOUSLY
DISCUSSED.  BURNET V. COMMONWEALTH IMPROVEMENT CO., SUPRA, 418, 419
20.  AFFIRMED. 

FN1  112 WEST 59TH STREET CORP. V. HELVERING, 62 APP. D.C. 350, 68
F.2D 397; UNITED STATES V. BRAGER BUILDING & LAND CORP., 124 F.2D 349;
NORTH JERSEY TITLE INS. CO. V. COMMISSIONER, 84 F.2D 898; INLAND
DEVELOPMENT CO. V. COMMISSIONER, 120 F.2D 986; SEE CARLING HOLDING CO.
V. COMMISSIONER, 41 B.T.A. 493; MAYER V. COMMISSIONER, 36 B.T.A. 117;
ABRAMS SONS' REALTY CORP. V. COMMISSIONER, 40 B.T.A. 653; THRIFT REALTY
CO. V. COMMISSIONER, 29 B.T.A. 545; MORO REALTY HOLDING CORP. V.
COMMISSIONER, 25 B.T.A. 1135, AFFIRMED 65 F.2D 1013; FORSHAY V.
COMMISSIONER, 20 B.T.A. 537. 

FN2  TEXAS-EMPIRE PIPE LINE CO. V. COMMISSIONER, 127 F.2D 220.  CF.
EDWARDS V. CHILE COPPER CO., 270 U.S. 452, 453-4, 456. 

FN3  SHELDON BLDG. CORP. V. COMMISSIONER, 118 F.2D 835. 

FN4  PALCAR REAL ESTATE CO. V. COMMISSIONER, 131 F.2D 210. 

FN5  WATSON V. COMMISSIONER, 124 F.2D 437; SALMON V. COMMISSIONER,
126 F.2D 203. 
..END :



















MAYO V. UNITED STATES, 319 U.S. 441 


NO. 726.  ARGUED APRIL 16, 1943.  - DECIDED JUNE 1, 1943.  - 47 F.SUPP. 
552, AFFIRMED. 


1.  THE UNITED STATES OWNED THE FERTILIZER WHICH IT SHIPPED INTO
FLORIDA FOR DISTRIBUTION PURSUANT TO THE SOIL CONSERVATION AND DOMESTIC
ALLOTMENT ACT, AND IN RESPECT OF SUCH DISTRIBUTION WAS ACTING IN A
GOVERNMENTAL CAPACITY.  P. 444. 

2.  A STATE IS WITHOUT CONSTITUTIONAL POWER TO EXACT AN INSPECTION
FEE - ALTHOUGH THE DESIGN OF THE INSPECTION SERVICE WAS TO PROTECT
CONSUMERS FROM FRAUD - IN RESPECT OF FERTILIZER WHICH THE UNITED STATES
OWNS AND IS DISTRIBUTING WITHIN THE STATE PURSUANT TO PROVISIONS OF THE
SOIL CONSERVATION AND DOMESTIC ALLOTMENT ACT.  CONST., ART. VI.  P.
447. 

3.  THE INSTRUMENTALITIES AND PROPERTY OF THE UNITED STATES USED BY
IT IN GOVERNMENTAL ACTIVITIES ARE IMMUNE FROM STATE TAXATION OR
REGULATION, UNLESS CONGRESS AFFIRMATIVELY PROVIDES OTHERWISE.  P. 448. 

MAYO ET AL. V. UNITED STATES. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF FLORIDA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES ENJOINING
STATE OFFICERS FROM ENFORCING AGAINST THE UNITED STATES THE PROVISIONS
OF THE FLORIDA COMMERCIAL FERTILIZER LAW. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS RECORD PRESENTS FOR REVIEW THE ACTION OF A SPECIALLY CONSTITUTED
DISTRICT COURT IN ENJOINING, ON FINAL HEARING, THE COMMISSIONER OF
AGRICULTURE OF THE STATE OF FLORIDA AND HIS AGENTS FROM ENFORCING
AGAINST THE UNITED STATES THE PROVISIONS OF THE FLORIDA COMMERCIAL
FERTILIZER LAW.  JUDICIAL CODE, SECS. 266 AND 238. 

BY THIS FLORIDA ACT THE SALE OR DISTRIBUTION OF COMMERCIAL FERTILIZER
IS COMPREHENSIVELY REGULATED.  THERE IS INCLUDED A REQUIREMENT OF A
LABEL OR STAMP ON EACH BAG EVIDENCING THE PAYMENT OF AN INSPECTION
FEE.  UNLESS SO IDENTIFIED, THE BAGS MAY BE SEIZED AND SOLD BY THE
SHERIFF OF THE COUNTY.  THE PURPOSE OF THE LEGISLATION IS TO ASSURE THE
CONSUMERS THAT THEY WILL OBTAIN THE QUALITY OF FERTILIZER FOR WHICH
THEY PAY AND THAT SUBSTANCES DELETERIOUS TO THE LAND WILL BE EXCLUDED
FROM THE MATERIAL SOLD.  FLORIDA STATUTES, 1941, C. 576. 

THE UNITED STATES, UNDER THE DIRECTION OF THE SECRETARY OF
AGRICULTURE, ACTING UNDER THE PROVISIONS OF THE SOIL CONSERVATION AND
DOMESTIC ALLOTMENT ACT,  FN1  PURCHASED COMMERCIAL FERTILIZER OUTSIDE
OF FLORIDA AND UNDERTOOK ITS DISTRIBUTION TO CONSUMERS WITHIN THAT
STATE DURING THE FISCAL YEAR ENDING JUNE 30, 1943, WITHOUT STATE
INSPECTION AND WITHOUT PAYING FOR OR AFFIXING TO THE BAGS THE
INSPECTION STAMPS REQUIRED BY THE FLORIDA ACT.  THIS DISTRIBUTION WAS A
PART OF THE NATIONAL SOIL CONSERVATION PROGRAM.  FN2  THROUGH THE USE
OF FERTILIZERS WITH A HIGH CONTENT OF SUPERPHOSPHATE ON WINTER LEGUMES
THE PLAN SOUGHT, BY PLOWING UNDER THE LEGUMES, TO OBTAIN SCARCE
NITROGEN FOR THE COMMERCIAL CROPS WHICH WERE TO FOLLOW.  TO SECURE A
HEAVY GROWTH OF THE LEGUMES BEFORE PLOWING TIME, THE FERTILIZER SHOULD
BE APPLIED AND THE LEGUMES PLANTED PRIOR TO OCTOBER 15TH.  FARMERS WHO
DESIRE TO PARTICIPATE IN THE CONSERVATION PROGRAM FOLLOW THE REQUIRED
PRACTICES UNDER THE SUPERVISION OF COUNTY COMMITTEES OR ASSOCIATIONS
WHICH ARE FEDERAL INSTRUMENTALITIES FOR CARRYING OUT THE PLANS.  SEC.
8(B). 

THE SOIL-BUILDING AND SOIL-CONSERVING PRACTICES, WHEN CARRIED OUT BY
A PARTICIPATING FARMER, ENTITLE HIM TO A GRANT OR BENEFIT PAYMENT. 
SEC. 8.  IN ORDER THAT THE FARMER MAY EARN THIS GRANT, PHOSPHATE
FERTILIZERS ARE FURNISHED TO HIM IN ADVANCE BY THE GOVERNMENT THROUGH
THE COUNTY COMMITTEE.  THE COST IS DEDUCTED FROM THE GRANT.  FOR THE
PURPOSE OF CARRYING OUT THE PROGRAM, THE UNITED STATES CAUSED
FERTILIZERS PURCHASED BY ITS AGENTS TO BE SHIPPED INTO FLORIDA TO THE
LOCAL AGRICULTURAL ASSOCIATIONS FOR SUCH DISTRIBUTION.  AS THE SACKS
WERE WITHOUT STAMPS, THE FLORIDA COMMISSIONER OF AGRICULTURE ON
SEPTEMBER 10, 1942, GAVE A "STOP SALE" NOTICE TO THE COUNTY
AGRICULTURAL ASSOCIATION TO CEASE DISTRIBUTION. 

THE ATTORNEY GENERAL OF THE UNITED STATES DIRECTED THE FILING OF A
COMPLAINT AGAINST THE FLORIDA OFFICIALS WHO ARE CHARGED WITH THE
ENFORCEMENT OF THE FLORIDA LAW.  THE COMPLAINT SET OUT THE "STOP SALE"
NOTICE, THE REFUSAL OF NUMEROUS PERSONS UTILIZED BY THE UNITED STATES
IN ITS WORK TO PROCEED WITH THE DISTRIBUTION OF THE FERTILIZER WITHOUT
THE PROTECTION OF AN INJUNCTION, THE FRUSTRATION OF THE CONSERVATION
PROGRAM OF THE SECRETARY OF AGRICULTURE, THE IMMINENCY OF IRREPARABLE
DAMAGE BECAUSE OF THE NECESSITY OF PROMPT DISTRIBUTION OF THE
FERTILIZER AND THE LACK OF ANY EFFICIENT REMEDY OTHER THAN A TEMPORARY
AND PERMANENT INJUNCTION.  FLORIDA OBJECTED TO THE COMPLAINT FOR
FAILURE TO STATE A CAUSE OF ACTION AND SET UP NUMEROUS DEFENSES WHICH
HAVE NOW BEEN REDUCED BY THE SPECIFICATION OF ERRORS AND THE BRIEF TO
THE FUNDAMENTAL ONE THAT THE UNITED STATES AS TO FERTILIZER TO BE USED
UPON FLORIDA SOIL IS NOT EXEMPT BY CONSTITUTION OR STATUTE FROM
COMPLIANCE WITH REASONABLE STATE REGULATION OR THE PAYMENT OF
REASONABLE INSPECTION FEES.  AT ANY RATE, IT IS URGED, INSPECTION FEES
MAY BE COLLECTED UNDER THE FACTS HERETOFORE STATED AS THE GOVERNMENT IS
MERELY A CONDUIT OR SERVICE AGENT FOR THE FERTILIZER MANUFACTURER OR
THE FLORIDA FARMER. 

THE DISTRICT COURT DISPOSED, WE THINK, OF THE CONDUIT OR SERVICE
AGENT ARGUMENT BY ITS FINDING THAT THE GOVERNMENT "BECAME THE OWNER" OF
THE FERTILIZER AT THE MANUFACTURING PLANTS WHICH ARE OUTSIDE THE STATE
AND WAS ENGAGED IN DISTRIBUTING IT IN FLORIDA AS A PART OF THE NATIONAL
SOIL CONSERVATION PROGRAM.  IN PROMOTING SOIL CONSERVATION BY PRECEPT
AND DEMONSTRATION THROUGH THE DEPARTMENT OF AGRICULTURE, THE UNITED
STATES, AS IN ITS OTHER AUTHORIZED ACTIVITIES, ACTS IN A GOVERNMENTAL
CAPACITY.  FN3  PRIOR TO THE SOIL CONSERVATION ACT, CONGRESS HAD, AS A
MATTER OF CUSTOM, PUT MONEY AND RESPONSIBILITY IN THE HANDS OF THE
EXECUTIVE TO PROMOTE AGRICULTURE IN THE MOST GENERAL SENSE.  IT IS
COMMONPLACE FOR APPROPRIATIONS TO BE MADE FOR LOANS TO FARMERS.  FN4
THE DISTRIBUTION OF FERTILIZER OWNED BY THE UNITED STATES AS A CHARGE
AGAINST GRANTS TO AID SOIL CONSERVATION IS OF THE SAME CHARACTER.  SEC.
8(B).  CF. UNITED STATES V. BUTLER, 297 U.S. 1, 65, 68.  NO INFERENCE
OF FACT OR CONCLUSION OF LAW, WE THINK, CAN BE PROPERLY DRAWN FROM THE
CIRCUMSTANCES OF THIS FERTILIZER DISTRIBUTION OTHER THAN THAT THE
UNITED STATES WAS THE OWNER OF THE FERTILIZER IN FLORIDA AWAITING
DISTRIBUTION. 

THE OTHER FINDINGS ARE SUBSTANTIALLY IN ACCORD WITH THE ALLEGATIONS
OF THE COMPLAINT AND ARE NOT CONTESTED.  THE DISTRICT COURT, ONE JUDGE
DISSENTING, ENJOINED THE APPLICATION OF FLORIDA LAW TO THE ABOVE
DESCRIBED ACTS OF THE UNITED STATES ON THE GROUND OF FEDERAL IMMUNITY
FROM STATE REGULATION. 

SINCE THE UNITED STATES IS A GOVERNMENT OF DELEGATED POWERS, NONE OF
WHICH MAY BE EXERCISED THROUGHOUT THE NATION BY ANY ONE STATE, IT IS
NECESSARY FOR UNIFORMITY THAT THE LAWS OF THE UNITED STATES BE DOMINANT
OVER THOSE OF ANY STATE.  SUCH DOMINANCY IS REQUIRED ALSO TO AVOID A
BREAKDOWN OF ADMINISTRATION THROUGH POSSIBLE CONFLICTS ARISING FROM
INCONSISTENT REQUIREMENTS.  THE SUPREMACY CLAUSE OF THE CONSTITUTION
STATES THIS ESSENTIAL PRINCIPLE.  ARTICLE VI.  A COROLLARY TO THIS
PRINCIPLE IS THAT THE ACTIVITIES OF THE FEDERAL GOVERNMENT ARE FREE
FROM REGULATION BY ANY STATE.  FN5  NO OTHER ADJUSTMENT OF COMPETING
ENACTMENTS OR LEGAL PRINCIPLES IS POSSIBLE. 

APPELLANTS' ARGUMENT IN SUPPORT OF THE INSPECTION FEE IS THAT NEITHER
THE CONSTITUTION NOR ANY FEDERAL STATUTE EXEMPTS THE UNITED STATES FROM
PAYING REASONABLE STATE INSPECTION FEES TO SUPPORT PERMISSIBLE
REGULATION OF COMMERCIAL FERTILIZER.  SUCH INSPECTIONS ARE ALLOWABLE
WHERE THE UNITED STATES IS NOT THE OWNER.  PATAPSCO GUANO CO. V. NORTH
CAROLINA, 171 U.S. 345; RED "C" OIL CO. V. NORTH CAROLINA, 222 U.S.
380, 392.  APPELLANTS URGE THAT SINCE THEY ARE ALLOWABLE TO PROTECT THE
FARMERS AGAINST THE IMPOSITION OF FERTILIZERS OF QUALITY POSSIBLY
INFERIOR TO THE MANUFACTURERS' REPRESENTATIONS, THE INSPECTION FEE
SHOULD BE PAID ON FERTILIZERS DISTRIBUTED BY THE UNITED STATES, WHERE
THE FEDERAL LAW IS SILENT AS TO ANY EXEMPTION ON THE GROUND OF
SOVEREIGNTY.  RELIANCE IS PLACED UPON GRAVES V. NEW YORK EX REL.
O'KEEFE, 306 U.S. 466. 

IT LIES WITHIN CONGRESSIONAL POWER TO AUTHORIZE REGULATION, INCLUDING
TAXATION, BY THE STATE OF FEDERAL INSTRUMENTALITIES N6.  NO SUCH
PERMISSION IS GRANTED HERE.  COMPARE 56 STAT. 664.  CONGRESS MAY
PROTECT ITS AGENCIES FROM THE BURDENS OF LOCAL TAXATION.  FN7  THERE
ARE MATTERS OF LOCAL CONCERN WITHIN THE SCOPE OF FEDERAL POWER WHICH IN
THE SILENCE OF CONGRESS MAY BE REGULATED IN SUCH MANNER AS DOES NOT
IMPAIR NATIONAL UNIFORMITY.  FN8  THERE ARE FEDERAL ACTIVITIES WHICH IN
THE ABSENCE OF SPECIFIC CONGRESSIONAL CONSENT MAY BE AFFECTED BY STATE
REGULATION.  FN9  GRAVES V. NEW YORK EX REL. O'KEEFE, SUPRA, UPON WHICH
APPELLANTS RELY SO STRONGLY, IS IN THIS LATTER GROUP.  IN THAT CASE, AN
EMPLOYEE OF THE HOME OWNERS' LOAN CORPORATION, A FEDERAL AGENCY WHICH
WAS ASSUMED TO HAVE THE SAME IMMUNITY FROM STATE TAXATION AS THE UNITED
STATES ITSELF, SOUGHT EXEMPTION FROM NEW YORK'S INCOME TAX ON THE
GROUND THAT A TAX UPON THE EMPLOYEE'S SALARY IMPOSED AN
UNCONSTITUTIONAL BURDEN UPON THE FEDERAL GOVERNMENT.  THIS POSITION WAS
NOT WITHOUT PRECEDENT.  FN10  UPON FULL REEXAMINATION OF THE
AUTHORITIES AND THE REASONING UPON WHICH THE EARLIER CASES HAD ALLOWED
THE EMPLOYEES OF ONE SOVEREIGNTY FREEDOM FROM THE EXACTIONS OF THE
OTHER, THIS COURT DECLARED THAT IN THE ABSENCE OF A FEDERAL DECLARATION
OF IMMUNITY FROM STATE TAXATION, NO SUCH "TANGIBLE OR CERTAIN ECONOMIC
BURDEN IS IMPOSED ON THE (UNITED STATES) AS WOULD JUSTIFY A COURT'S
DECLARING THAT THE IS CLOTHED WITH THE IMPLIED CONSTITUTIONAL TAX
IMMUNITY OF THE GOVERNMENT BY WHICH HE IS EMPLOYED."  PAGE 486. 

THESE INSPECTION FEES ARE LAID DIRECTLY UPON THE UNITED STATES.  THEY
ARE MONEY EXACTIONS THE PAYMENT OF WHICH, IF THEY ARE ENFORCEABLE,
WOULD BE REQUIRED BEFORE EXECUTING A FUNCTION OF GOVERNMENT.  SUCH A
REQUIREMENT IS PROHIBITED BY THE SUPREMACY CLAUSE.  WE ARE NOT DEALING
AS IN GRAVES V. NEW YORK EX REL. O'KEEFE, SUPRA, WITH A TAX UPON THE
SALARY OF AN EMPLOYEE, OR AS IN ALABAMA V. KING & BOOZER, 314 U.S. 1,
WITH A TAX UPON THE PURCHASES OF A SUPPLIER, OR AS IN PENN DAIRIES V.
MILK CONTROL COMM'N, 318 U.S. 261, WITH PRICE CONTROL EXERCISED OVER A
CONTRACTOR WITH THE UNITED STATES.  IN THESE CASES THE EXACTIONS
DIRECTLY AFFECTED PERSONS WHO WERE ACTING FOR THEMSELVES AND NOT FOR
THE UNITED STATES.  THESE FEES ARE LIKE A TAX UPON THE RIGHT TO CARRY
ON THE BUSINESS OF THE POST OFFICE OR UPON THE PRIVILEGE OF SELLING
UNITED STATES BONDS THROUGH FEDERAL OFFICIALS.  ADMITTEDLY THE STATE
INSPECTION SERVICE IS TO PROTECT CONSUMERS FROM FRAUD BUT IN CARRYING
OUT SUCH PROTECTION, THE FEDERAL FUNCTION MUST BE LEFT FREE.  FN11
THIS FREEDOM IS INHERENT IN SOVEREIGNTY.  THE SILENCE OF CONGRESS AS TO
THE SUBJECTION OF ITS INSTRUMENTALITIES, OTHER THAN THE UNITED STATES,
TO LOCAL TAXATION OR REGULATION IS TO BE INTERPRETED IN THE SETTING OF
THE APPLICABLE LEGISLATION AND THE PARTICULAR EXACTION.  SHAW V. GIBSON
ZAHNISER OIL CORP., 276 U.S. 575, 578.  BUT WHERE, AS HERE, THE
GOVERNMENTAL ACTION IS CARRIED ON BY THE UNITED STATES ITSELF AND
CONGRESS DOES NOT AFFIRMATIVELY DECLARE ITS INSTRUMENTALITIES OR
PROPERTY SUBJECT TO REGULATION OR TAXATION, THE INHERENT FREEDOM
CONTINUES.  AFFIRMED. 

FN1  49 STAT. 163, 1148; 50 STAT. 329; 55 STAT. 257, 860; 56 STAT.
664. 

FN2  SECS. 7 AND 8 OF THE SOIL CONSERVATION AND DOMESTIC ALLOTMENT
ACT, AS AMENDED. 

FN3  GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466, 477; PITTMAN
V. HOME OWNERS' LOAN CORP., 308 U.S. 21, 32; FEDERAL LAND BANK V.
BISMARCK CO., 314 U.S. 95, 102. 

FN4  ESTABLISHMENT OF THE DEPARTMENT OF AGRICULTURE, 12 STAT. 387; OF
COLLEGES OF AGRICULTURE, 26 STAT. 417; FEDERAL FARM LOAN ACT, 39 STAT.
360, 40 STAT. 431; FEDERAL INTERMEDIATE CREDIT BANKS, 42 STAT. 1454;
FEDERAL FARM BOARD, 46 STAT. 11; BOLL WEEVIL GRANT, 45 STAT. 539, 565. 

FN5  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 427; OHIO V. THOMAS, 173
U.S. 276, 283; OWENSBORO NATIONAL BANK V. OWENSBORO, 173 U.S. 664, 667;
JOHNSON V. MARYLAND, 254 U.S. 51; ARIZONA V. CALIFORNIA, 283 U.S. 423,
451. 

FN6  OWENSBORO NATIONAL BANK V. OWENSBORO, 173 U.S. 664, 667;
BALTIMORE NATIONAL BANK V. TAX COMM'N, 297 U.S. 209; PACIFIC COAST
DAIRY V. DEPT. OF AGRICULTURE, 318 U.S. 285, 296. 

FN7 PITTMAN V. HOME OWNERS' LOAN CORP., 308 U.S. 21, AND CASES
CITED. 

FN8  STANDARD DREDGING CORP. V. MURPHY, ANTE, P. 306; CALIFORNIA V.
THOMPSON, 313 U.S. 109. 

FN9  ALABAMA V. KING & BOOZER, 314 U.S. 1, 9, AND CASES CITED. 

FN10  DOBBINS V. COMMISSIONERS, 16 PET. 435; COLLECTOR V. DAY, 11
WALL.  113; NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S. 401; BRUSH V.
COMMISSIONER, 300 U.S. 352. 

FN11  SIMILAR CONCLUSIONS HAVE BEEN REACHED IN ADJACENT FIELDS.  THE
STATE IS POWERLESS TO PUNISH ITS CITIZENS FOR ACTS DONE IN EXCLUSIVELY
FEDERAL TERRITORY.  PACIFIC COAST DAIRY V. DEPT. OF AGRICULTURE, 318
U.S. 285.  A STATE CANNOT TAX LAND OF THE UNITED STATES SITUATED WITHIN
THE STATE EVEN THOUGH THE STATE HAS NOT CEDED SOVEREIGNTY TO THE UNITED
STATES.  VAN BROCKLIN V. TENNESSEE, 117 U.S. 151, 177. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :









FREEMAN V. BEE MACHINE CO., 319 U.S. 448 


NO. 707.  ARGUED MAY 4, 5, 1943.  - DECIDED JUNE 1, 1943.  - 131 F.2D
190, AFFIRMED. 


1.  A FEDERAL COURT HAVING JURISDICTION OF A CAUSE REMOVED FROM A
STATE COURT MAY ALLOW SUCH AN AMENDMENT OF THE COMPLAINT AS COULD HAVE
BEEN MADE HAD THE SUIT ORIGINATED IN THE FEDERAL COURT, EVEN THOUGH THE
AMENDMENT COULD NOT HAVE BEEN MADE HAD THE SUIT REMAINED IN THE STATE
COURT.  P. 451. 

2.  AFTER REMOVAL TO THE FEDERAL DISTRICT COURT OF AN ACTION FOR
BREACH OF CONTRACT, BEGUN IN A STATE COURT AGAINST A NONRESIDENT
DEFENDANT UPON WHOM PROCESS WAS PERSONALLY SERVED WITHIN THE STATE, THE
DEFENDANT ENTERED A GENERAL APPEARANCE, DEFENDED ON THE MERITS, AND
FILED A COUNTERCLAIM.  HELD THAT THE DEFENDANT WAS "FOUND" WITHIN THE
DISTRICT SO AS TO GIVE THE DISTRICT COURT POWER TO ALLOW THE COMPLAINT
TO BE AMENDED BY ADDING A CAUSE OF ACTION UNDER SEC. 4 OF THE CLAYTON
ACT.  P. 453. 

3.  THE RULES OF CIVIL PROCEDURE, WHICH PERMIT JOINDER OF CLAIMS,
RULE 18, AND PROVIDE FOR AMENDMENT OF PLEADINGS, RULE 15, ARE
APPLICABLE TO REMOVED CASES AND "GOVERN ALL PROCEDURE AFTER REMOVAL,"
RULE 81(C).  P. 454. 

4.  RULE 5 OF THE RULES OF CIVIL PROCEDURE PERMITS SERVICE OF AN
AMENDED COMPLAINT TO BE MADE UPON THE ATTORNEY FOR THE DEFENDANT.  P.
455. 

FREEMAN V. BEE MACHINE CO., INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 318 U.S. 752, TO REVIEW A JUDGMENT VACATING A JUDGMENT OF
THE DISTRICT COURT WHICH GRANTED A MOTION FOR A SUMMARY JUDGMENT FOR
THE DEFENDANT (PETITIONER HERE), 41 F.SUPP.  461, AND DENIED A MOTION
OF THE PLAINTIFF (RESPONDENT HERE) TO AMEND THE COMPLAINT, 42 F.SUPP. 
938, IN A SUIT WHICH HAD BEEN REMOVED FROM A STATE COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IT WAS HELD IN LAMBERT RUN COAL CO. V. BALTIMORE & OHIO R. CO., 258
U.S. 377, 382, THAT WHERE A STATE COURT LACKS JURISDICTION OF THE
SUBJECT MATTER OR OF THE PARTIES, THE FEDERAL DISTRICT COURT ACQUIRES
NONE ON A REMOVAL OF THE CASE.  AND SEE GENERAL INVESTMENT CO. V. LAKE
SHORE & M.S. RY. CO., 260 U.S. 261, 288; VENNER V. MICHIGAN CENTRAL R.
CO., 271 U.S. 127, 131; MINNESOTA V. UNITED STATES, 305 U.S. 382, 389. 
THAT IS TRUE EVEN WHERE THE FEDERAL COURT WOULD HAVE JURISDICTION IF
THE SUIT WERE BROUGHT THERE.  LAMBERT RUN COAL CO. V. BALTIMORE & OHIO
R. CO., SUPRA.  AS STATED BY MR. JUSTICE BRANDEIS IN THAT CASE, "THE
JURISDICTION OF THE FEDERAL COURT ON REMOVAL IS, IN A LIMITED SENSE, A
DERIVATIVE JURISDICTION."  258 U.S. P. 382.  THE QUESTION IN THIS CASE
IS WHETHER THE RULE OF THOSE DECISIONS IS APPLICABLE TO A SITUATION
INVOLVING THE FOLLOWING FACTS: 

PETITIONER IS A RESIDENT OF OHIO; RESPONDENT IS A MASSACHUSETTS
CORPORATION.  RESPONDENT BROUGHT AN ACTION AT LAW AGAINST PETITIONER IN
THE SUPERIOR COURT OF MASSACHUSETTS FOR BREACH OF A CONTRACT. 
PETITIONER WAS PERSONALLY SERVED WHEN HE HAPPENED TO BE IN BOSTON. 
PETITIONER APPEARED SPECIALLY AND CAUSED THE ACTION TO BE REMOVED TO
THE FEDERAL DISTRICT COURT IN MASSACHUSETTS, PETITIONER BEING A NON
RESIDENT OF MASSACHUSETTS AND THERE BEING DIVERSITY OF CITIZENSHIP AND
THE REQUISITE JURISDICTIONAL AMOUNT.  JUDICIAL CODE SEC. 28, 28 U.S.C.
SEC. 71.  PETITIONER THEREUPON ENTERED A GENERAL APPEARANCE  FN1  - HE
ANSWERED, INTERPOSING SEVERAL DEFENSES INCLUDING RES JUDICATA; HE ALSO
FILED A COUNTERCLAIM.  HE THEN MOVED FOR A SUMMARY JUDGMENT.  SHORTLY
BEFORE THAT MOTION CAME ON TO BE HEARD RESPONDENT MOVED TO AMEND ITS
DECLARATION BY ADDING A COMPLAINT FOR TREBLE DAMAGES UNDER SEC. 4 OF
THE CLAYTON ACT.  FN2  38 STAT. 731, 15 U.S.C. SEC. 15.  THE DISTRICT
COURT GRANTED PETITIONER'S MOTION FOR SUMMARY JUDGMENT.  41 F.SUPP. 
461.  BUT IT DENIED RESPONDENT'S MOTION TO AMEND, BEING OF THE VIEW
THAT IT HAD NO JURISDICTION TO ALLOW THE AMENDMENT.  42 F.SUPP.  938. 
IN REACHING THAT RESULT THE DISTRICT COURT EXPRESSED DOUBTS THAT THE
VENUE REQUIREMENTS OF SEC. 4 OF THE CLAYTON ACT WERE SATISFIED.  BUT IT
EXPRESSLY DECLINED TO REST ON THAT BASIS AND PLACED ITS DECISION SOLELY
ON THE LAMBERT CO. LINE OF CASES.  ON APPEAL THE CIRCUIT COURT OF
APPEALS SUSTAINED THE RULING OF THE DISTRICT COURT ON THE MOTION FOR
SUMMARY JUDGMENT BUT DISAGREED WITH ITS VIEW ON THE MOTION TO AMEND.
131 F.2D 190.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI
WHICH WE GRANTED BECAUSE OF THE IMPORTANCE OF THE PROBLEM AND THE
CONTRARIETY OF VIEWS WHICH HAD DEVELOPED CONCERNING IT.  FN8 

THE LAMBERT CO. CASE AND THOSE WHICH PRECEDED  FN4  AND FOLLOWED IT
MERELY HELD THAT DEFECTS IN THE JURISDICTION OF THE STATE COURT EITHER
AS RESPECTS THE SUBJECT MATTER OR THE PARTIES  FN5 WERE NOT CURED BY
REMOVAL BUT COULD THEREAFTER BE CHALLENGED IN THE FEDERAL COURT.  WE
SEE NO REASON IN PRECEDENT OR POLICY FOR EXTENDING THAT RULE SO AS TO
BAR AMENDMENTS TO THE COMPLAINT, OTHERWISE PROPER, MERELY BECAUSE THEY
COULD NOT HAVE BEEN MADE IF THE ACTION HAD REMAINED IN THE STATE
COURT.  FN6  IF THE FEDERAL COURT HAS JURISDICTION OF THE REMOVED CAUSE
AND IF THE AMENDMENT TO THE COMPLAINT COULD HAVE BEEN MADE HAD THE SUIT
ORIGINATED IN THE FEDERAL COURT, THE FACT THAT THE FEDERAL COURT
ACQUIRED JURISDICTION BY REMOVAL DOES NOT DEPRIVE IT OF POWER TO ALLOW
THE AMENDMENT.  THOUGH THIS SUIT AS INSTITUTED INVOLVED ONLY QUESTIONS
OF LOCAL LAW, IT COULD HAVE BEEN BROUGHT IN THE FEDERAL COURT BY REASON
OF DIVERSITY OF CITIZENSHIP.  FN7  THE RULE OF ERIE R. CO. V. TOMPKINS,
304 U.S. 64, IS, OF COURSE, APPLICABLE TO DIVERSITY CAUSES REMOVED TO
THE FEDERAL COURTS AS WELL AS TO SUCH ACTIONS ORIGINATING THERE.  BUT
IF THE FEDERAL COURT HAS JURISDICTION OF THE REMOVED CAUSE (MEXICAN
NATIONAL R. CO. V. DAVIDSON, 157 U.S. 201), THE ACTION IS NOT MORE
CLOSELY CONTAINED THAN THE ONE WHICH ORIGINATES IN THE FEDERAL COURT. 
THE JURISDICTION EXERCISED ON REMOVAL IS ORIGINAL NOT APPELLATE. 
VIRGINIA V. RIVES, 100 U.S. 313, 320.  THE FORMS AND MODES OF
PROCEEDING ARE GOVERNED BY FEDERAL LAW.  THOMPSON V. RAILROAD
COMPANIES, 6 WALL.  134; HURT V. HOLLINGSWORTH, 100 U.S. 100; WEST V.
SMITH, 101 U.S. 263; KING V. WORTHINGTON, 104 U.S. 44; EX PARTE FISK,
113 U.S. 713; NORTHERN PACIFIC R. CO. V. PAINE, 119 U.S. 561; TWIST V.
PRAIRIE OIL & GAS CO., 274 U.S. 684; RORICK V. DEVON SYNDICATE, 307
U.S. 299.  CONGRESS HAS INDEED PROVIDED THAT IN A SUIT WHICH HAS BEEN
REMOVED THE DISTRICT COURT SHALL "PROCEED THEREIN AS IF THE SUIT HAD
BEEN ORIGINALLY COMMENCED IN SAID DISTRICT COURT, AND THE SAME
PROCEEDINGS HAD BEEN TAKEN IN SUCH SUIT IN SAID DISTRICT COURT AS SHALL
HAVE BEEN HAD THEREIN IN SAID STATE COURT PRIOR TO ITS REMOVAL." 
JUDICIAL CODE SEC. 38, 28 U.S.C. SEC. 81.  WHILE THAT SECTION DOES NOT
CURE JURISDICTIONAL DEFECTS PRESENT IN THE STATE COURT ACTION, IT
PRESERVES TO THE FEDERAL DISTRICT COURTS THE FULL ARSENAL OF AUTHORITY
WITH WHICH THEY HAVE BEEN ENDOWED.  INCLUDED IN THAT AUTHORITY IS THE
POWER TO PERMIT A RECASTING OF PLEADINGS OR AMENDMENTS TO COMPLAINTS IN
ACCORDANCE WITH THE FEDERAL RULES.  WEST V. SMITH, SUPRA; TWIST V.
PRAIRIE OIL & GAS CO., SUPRA, P. 687. 

IT IS SAID, HOWEVER, THAT THE AMENDMENT IN QUESTION MAY NOT BE MADE
SINCE THE CAUSE OF ACTION AUTHORIZED BY SEC. 4 OF THE CLAYTON ACT MAY
BE BROUGHT ONLY IN A DISTRICT COURT IN THE DISTRICT "IN WHICH THE
DEFENDANT RESIDES OR IS FOUND OR HAS AN AGENT."  15 U.S.C. SEC. 15. 
THAT REQUIREMENT RELATES TO VENUE.  BUT VENUE INVOLVES NO MORE AND NO
LESS THAN A PERSONAL PRIVILEGE WHICH "MAY BE LOST BY FAILURE TO ASSERT
IT SEASONABLY, BY FORMAL SUBMISSION IN A CAUSE, OR BY SUBMISSION
THROUGH CONDUCT."  NEIRBO CO. V. BETHLEHEM SHIPBUILDING CORP., 308 U.S.
165, 168.  ON THE FACE OF THE PRESENT RECORD IT WOULD SEEM THAT ANY
OBJECTION TO VENUE HAS BEEN WAIVED.  THERE IS NO INDICATION IN THE
RECORD BEFORE US THAT ANY SUCH OBJECTION WAS "SEASONABLY ASSERTED." 
COMMERCIAL INS. CO. V. CONSOLIDATED STONE CO., 278 U.S. 177, 179;
INTERIOR CONSTRUCTION CO. V. GIBNEY, 160 U.S. 217.  AS WE HAVE NOTED,
THE DISTRICT COURT DID NOT PLACE ITS RULING ON THE GROUNDS OF VENUE. 
NOR IS THERE ANY INDICATION IN THE RECORD THAT PETITIONER RAISED THE
VENUE POINT IN THE DISTRICT COURT.  BUT EVEN IF WE ASSUME THAT HE DID,
IT IS NOT CLEAR THAT THE OBJECTION HAS BEEN PRESERVED HERE.  FN8 

BUT WE NEED NOT REST ON THAT NARROW GROUND.  PETITIONER WAS
PERSONALLY SERVED IN THE STATE COURT ACTION.  AFTER THE REMOVAL OF THE
CAUSE HE ENTERED A GENERAL APPEARANCE AND DEFENDED ON THE MERITS.  HE
ALSO FILED A COUNTERCLAIM IN THE ACTION.  HE THUS INVOKED THE
JURISDICTION OF THE FEDERAL COURT AND SUBMITTED TO IT.  MERCHANTS HEAT
& L. CO. V. CLOW & SONS, 204 U.S. 286.  HE WAS ACCORDINGLY "FOUND" IN
THE DISTRICT SO AS TO GIVE THE DISTRICT COURT POWER TO ALLOW THE
COMPLAINT IN THAT SUIT TO BE AMENDED BY ADDING A CAUSE OF ACTION UNDER
SEC. 4 OF THE CLAYTON ACT.  THIS VENUE PROVISION WAS DESIGNED, AS
STATED BY JUDGE LEARNED HAND IN THORBURN V. GATES, 225 F. 613, 615, "TO
REMOVE THE EXISTING LIMITATIONS UPON THE VENUE OF ACTIONS BETWEEN
DIVERSE CITIZENS  FN9 AND TO PERMIT THE PLAINTIFF TO SUE THE DEFENDANT
WHEREVER HE COULD CATCH HIM."  BUT "FOUND" IN THE VENUE SENSE DOES NOT
NECESSARILY MEAN PHYSICAL PRESENCE.  WE NOTED IN NEIRBO CO. V.
BETHLEHEM SHIPBUILDING CORP., SUPRA, PP. 170-171, THAT A CORPORATION
MAY BE "FOUND" IN A PARTICULAR DISTRICT FOR VENUE PURPOSES MERELY
BECAUSE IT HAD CONSENTED TO BE SUED THERE.  THE FACT THAT IT WAS
PRESENT "ONLY IN A METAPHORICAL SENSE" (308 U.S. P. 170) WAS NOT DEEMED
SIGNIFICANT.  IN THE PRESENT CASE IT IS NOT IMPORTANT THAT AT THE TIME
OF THIS AMENDMENT PETITIONER HAD RETURNED TO OHIO AND WAS NOT
PHYSICALLY PRESENT IN MASSACHUSETTS.  HE WAS CONDUCTING LITIGATION IN
MASSACHUSETTS.  HE WAS THERE FOR ALL PURPOSES OF THAT LITIGATION. 
HAVING INVOKED THE JURISDICTION OF THE FEDERAL COURT AND SUBMITTED TO
IT, HE MAY NOT CLAIM THAT HE WAS PRESENT ONLY FOR THE LIMITED
OBJECTIVES OF HIS ANSWER AND COUNTERCLAIM.  HE WAS PRESENT, SO TO
SPEAK, FOR ALL PHASES OF THE SUIT.  THAT PRESENCE SATISFIES THE VENUE
PROVISION OF SEC. 4 OF THE CLAYTON ACT FOR THE PURPOSE OF THIS
AMENDMENT.  THE RULES OF CIVIL PROCEDURE ARE APPLICABLE TO REMOVED
CASES AND "GOVERN ALL PROCEDURE AFTER REMOVAL."  RULE 81(C).  THEY
PERMIT JOINDER OF CLAIMS (RULE 18) AND CONTAIN THE PROCEDURE FOR
AMENDMENT OF PLEADINGS.  RULE 15.  AND, AS WE HAVE NOTED, CONGRESS HAS
DIRECTED THE DISTRICT COURT AFTER A CASE HAS BEEN REMOVED TO "PROCEED
THEREIN AS IF THE SUIT HAD BEEN ORIGINALLY COMMENCED IN SAID DISTRICT
COURT."  JUDICIAL CODE SEC. 38, 28 U.S.C. SEC. 81.  THERE CAN BE NO
DOUBT BUT THAT THE COURT HAD THE POWER UNDER THAT STATUTE AND UNDER THE
RULES TO PERMIT THE JOINDER OF THE CAUSE OF ACTION UNDER THE CLAYTON
ACT.  IF PETITIONER WAS SUBJECT TO THE JURISDICTION OF THE COURT FOR
PURPOSES OF THE LAW SUIT, INCLUDING AN AMENDMENT OF THE COMPLAINT, HE
CERTAINLY WAS "FOUND" THERE FOR THE PURPOSE OF ADDING A CAUSE OF ACTION
UNDER SEC. 4 OF THE CLAYTON ACT.  PROCESS IS OF COURSE A DIFFERENT
MATTER.  BUT UNDER THE RULES OF CIVIL PROCEDURE SERVICE OF AN AMENDED
COMPLAINT MAY BE MADE UPON THE ATTORNEY  FN10  (RULE 5) - THE PROCEDURE
WHICH APPARENTLY WAS FOLLOWED HERE.  AFFIRMED. 

FN1  SEE WESTERN LOAN & S. CO. V. BUTTE & B. MINING CO., 210 U.S.
368, 372; AMERICAN SURETY CO. V. BALDWIN, 287 U.S. 156, 165. 

FN2  THAT SECTION PROVIDES:  "ANY PERSON WHO SHALL BE INJURED IN HIS
BUSINESS OR PROPERTY BY REASON OF ANYTHING FORBIDDEN IN THE ANTITRUST
LAWS MAY SUE THEREFOR IN ANY DISTRICT COURT OF THE UNITED STATES IN THE
DISTRICT IN WHICH THE DEFENDANT RESIDES OR IS FOUND OR HAS AN AGENT,
WITHOUT RESPECT TO THE AMOUNT IN CONTROVERSY, AND SHALL RECOVER
THREEFOLD THE DAMAGES BY HIM SUSTAINED, AND THE COST OF SUIT, INCLUDING
A REASONABLE ATTORNEY'S FEE."  THAT SECTION DERIVED FROM SEC. 7 OF THE
SHERMAN ACT.  SEE EASTMAN KODAK CO. V. SOUTHERN PHOTO MATERIALS CO.,
273 U.S. 359, 371-374. 

FN3  SEE NOMA ELECTRIC CORP. V. POLAROID CORP., 2 F.R.D. 454; CARROLL
V. WARNER BROS. PICTURES, 20 F.SUPP.  405; HOWE V. ATWOOD, 47 F.SUPP. 
979, 984.  CF. NEWBERRY V. CENTRAL OF GEORGIA RY. CO., 276 F. 337,
338. 

FN4  SEE GOLDEY V. MORNING NEWS, 156 U.S. 518; DE LIMA V. BIDWELL,
182 U.S. 1, 174; COURTNEY V. PRADT, 196 U.S. 89, 92; AMERICAN WELL
WORKS CO. V. LAYNE & BOWLER CO., 241 U.S. 257, 258. 

FN5  WABASH WESTERN RY. V. BROW, 164 U.S. 271; HASSLER, INC. V. SHAW,
271 U.S. 195; EMPLOYERS REINSURANCE CORP. V. BRYANT, 299 U.S. 374. 

FN6  IT IS CLEAR THAT THE MASSACHUSETTS STATE COURT DID NOT HAVE
JURISDICTION OVER THE CAUSE OF ACTION UNDER THE ANTI-TRUST LAWS.  SEE
15 U.S.C. SEC. 15, SUPRA, NOTE 2; BLUMENSTOCK BROS. V. CURTIS
PUBLISHING CO., 252 U.S. 436, 440. 

FN7  SUITS BASED ON DIVERSITY OF CITIZENSHIP MAY BE BROUGHT "ONLY IN
THE DISTRICT OF THE RESIDENCE OF EITHER THE PLAINTIFF OR THE
DEFENDANT."  JUDICIAL CODE SEC. 51, 28 U.S.C. SEC. 112.  CONGRESS HAS
NOT MADE THE SAME REQUIREMENT ON REMOVAL.  THUS AN ACTION BETWEEN
CITIZENS OF DIFFERENT STATES BEGUN IN A COURT OF A STATE OF WHICH
NEITHER IS A CITIZEN MAY BE REMOVED TO THE FEDERAL COURT OF THE
DISTRICT IN WHICH THE SUIT IS PENDING.  LEE V. CHESAPEAKE & OHIO RY.
CO., 260 U.S. 653.  SEE NEIRBO CO. V. BETHLEHEM SHIPBUILDING CORP., 308
U.S. 165, 168.  INDEED, THE DEFENDANT MUST BE A NON-RESIDENT OF THE
STATE IN WHICH SUIT IS BROUGHT BEFORE HE CAN REMOVE TO THE FEDERAL
COURT ON THE GROUND OF DIVERSITY OF CITIZENSHIP.  PATCH V. WABASH R.
CO., 207 U.S. 277. 

FN8  THE "ONLY QUESTION" PRESENTED BY THE PETITION FOR WRIT OF
CERTIORARI WAS "WHETHER A PLAINTIFF MAY AMEND HIS COMPLAINT IN A
REMOVED ACTION SO AS TO STATE A NEW AND INDEPENDENT CAUSE OF ACTION
AGAINST THE DEFENDANT WHICH WOULD BE OUTSIDE THE STATE COURT'S
JURISDICTION."  THAT OBVIOUSLY IS NOT A PRESENTATION OF A QUESTION OF
VENUE OF A FEDERAL DISTRICT COURT UNDER SEC. 4 OF THE CLAYTON ACT; AND
IT CAN HARDLY BE EXPANDED INTO ONE BY AN INCIDENTAL DISCUSSION OF VENUE
IN THE BRIEF. 

FN9  SEE NOTE 7, SUPRA. 

FN10  SEE ADAM V. SAENGER, 303 U.S. 59, 67-68. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

CONGRESS HAS POWER, OF COURSE, TO AUTHORIZE A SUIT ARISING UNDER
FEDERAL LAW TO BE BROUGHT IN ANY OF THE FEDERAL DISTRICT COURTS. 
ROBERTSON V. LABOR BOARD, 268 U.S. 619, 622.  BUT FROM THE BEGINNING OF
THE FEDERAL JUDICIAL SYSTEM, CONGRESS HAS PROVIDED THAT CIVIL SUITS CAN
BE BROUGHT ONLY IN THE DISTRICT WHERE THE DEFENDANT IS AN INHABITANT,
EXCEPT THAT WHERE FEDERAL JURISDICTION IS BASED SOLELY UPON DIVERSITY
OF THE PARTIES' CITIZENSHIP, SUIT MAY BE BROUGHT IN THE DISTRICT OF THE
RESIDENCE OF EITHER THE PLAINTIFF OR THE DEFENDANT.  SECTION 51 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 112, DERIVED FROM SEC. 11 OF THE
JUDICIARY ACT OF 1789, 1 STAT. 73, 79.  ONLY IN A VERY FEW CLASSES OF
CASES HAS CONGRESS GIVEN A STRICTLY LIMITED RIGHT TO SUE ELSEWHERE. 
ROBERTSON V. LABOR BOARD, SUPRA.  IN SEC. 4 OF THE CLAYTON ACT OF
OCTOBER 15, 1914, 38 STAT. 731, 15 U.S.C. SEC. 15, THE LEGISLATION
IMMEDIATELY BEFORE US, SUITS ARE AUTHORIZED TO BE BROUGHT "IN ANY
DISTRICT COURT OF THE UNITED STATES IN THE DISTRICT IN WHICH THE
DEFENDANT RESIDES OR IS FOUND OR HAS AN AGENT.  ...  "  SIMILAR
PROVISIONS, PERMITTING SUIT WHERE THE DEFENDANT IS "FOUND," APPEAR IN
THE ACT OF MARCH 3, 1911, SEC. 43, 36 STAT. 1087, 1100, 28 U.S.C. SEC.
104(SUITS FOR PENALTIES AND FORFEITURES), THE ACT OF MARCH 4, 1909,
SEC. 35, 35 STAT. 1075, 1084, 17 U.S.C. SEC. 35(SUITS FOR COPYRIGHT
INFRINGEMENT), THE ACT OF FEBRUARY 5, 1917, SEC. 25, 39 STAT. 874, 893,
8 U.S.C. SEC. 164(SUITS UNDER THE IMMIGRATION LAWS), THE ACT OF MAY 27,
1933, TIT. I, SEC. 22, 48 STAT. 74, 86, 15 U.S.C. SEC. 77V (SUITS UNDER
THE SECURITIES ACT OF 1933), AND THE ACT OF JUNE 6, 1934, SEC. 27, 48
STAT. 881, 902, 15 U.S.C. SEC. 78AA, (SUITS UNDER THE SECURITIES
EXCHANGE ACT OF 1934).  IN HOLDING THAT THE PETITIONER WAS "FOUND" IN
THE DISTRICT OF MASSACHUSETTS MERELY BECAUSE HE HAD EXERCISED HIS
STATUTORY RIGHT TO REMOVE A SUIT TO THE FEDERAL DISTRICT COURT IN
MASSACHUSETTS, THE COURT, I CANNOT BUT CONCLUDE, IS DISREGARDING THE
VENUE REQUIREMENTS OF THE CLAYTON ACT. 

THE RESPONDENT, A MASSACHUSETTS CORPORATION, BROUGHT AN ACTION FOR
BREACH OF CONTRACT IN THE SUPERIOR COURT OF ESSEX COUNTY,
MASSACHUSETTS, AGAINST THE PETITIONER, A RESIDENT OF OHIO, BY SERVING
HIM PERSONALLY WHILE AT A HOTEL IN BOSTON.  SINCE THERE WAS THE
REQUISITE DIVERSITY OF CITIZENSHIP AND JURISDICTIONAL AMOUNT, THE
PETITIONER APPEARED SPECIALLY IN THE STATE COURT, REMOVED THE CAUSE TO
THE FEDERAL DISTRICT COURT IN MASSACHUSETTS, FILED AN ANSWER AND A
COUNTERCLAIM FOR DAMAGES, AND MOVED FOR SUMMARY JUDGMENT UNDER RULE
56(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE.  THEREAFTER, ON THE DAY
BEFORE THE HEARING ON THIS MOTION, THE RESPONDENT MOVED TO AMEND ITS
COMPLAINT BY ADDING A CAUSE OF ACTION FOR TREBLE DAMAGES UNDER SEC. 4
OF THE CLAYTON ACT.  AT THAT TIME THE PETITIONER WAS NO LONGER PRESENT
IN MASSACHUSETTS.  THE DISTRICT COURT GRANTED THE PETITIONER'S MOTION
FOR SUMMARY JUDGMENT, AND DENIED THE RESPONDENT LEAVE TO AMEND ITS
COMPLAINT.  THE REASONS FOR THE COURT'S ACTION APPEAR IN ITS OPINION: 

"THIS COURT HAS JURISDICTION UNDER THE ANTI-TRUST LAWS OVER A
NONRESIDENT ONLY IF HE IS FOUND IN THE DISTRICT OR HAS AN AGENT
THEREIN.  15 U.S.C. SEC. 15.  THE DEFENDANT WHILE IN THE COMMONWEALTH
WAS SERVED WITH PROCESS IN A COMMON LAW ACTION OF CONTRACT.  THE
PLAINTIFF (RESPONDENT) OBVIOUSLY SEEKS TO TAKE ADVANTAGE OF THIS FACT
IN ORDER TO OBTAIN JURISDICTION OVER THE PERSON IN A SUIT INVOLVING A
NEW AND ENTIRELY DIFFERENT SUBJECT-MATTER, NAMELY, THE ENFORCEMENT OF
RIGHTS ARISING UNDER FEDERAL STATUTES.  ...  IT FOLLOWS FROM THE
FOREGOING THAT IF THE PLAINTIFF IS ALLOWED TO ADD THE CAUSE OF ACTION
ALLEGED IN ITS MOTION, THE AMENDED COMPLAINT WOULD BE SUBJECT TO
SUCCESSFUL ATTACK ON JURISDICTIONAL GROUNDS.  ...  THE MOTION IS,
THEREFORE, DENIED WITHOUT PREJUDICE TO PLAINTIFF'S RIGHT TO SEEK
REDRESS BY SUIT BROUGHT ORIGINALLY IN THE FEDERAL COURT."  42 F.SUPP. 
938, 939. 

AS IN CAMP V. GRESS, 250 U.S. 308, 311, THEREFORE, THE PETITIONER
OBJECTED "NOT TO THE JURISDICTION OF A FEDERAL COURT, BUT TO THE
JURISDICTION OVER HIM OF THE COURT OF THE PARTICULAR DISTRICT; THAT IS,
THE OBJECTION IS TO THE VENUE."  SUCH A USE OF THE TERM "JURISDICTION"
IN THE SENSE OF VENUE IS BY NO MEANS UNCOMMON.  SEE, E.G., BURNITE COAL
CO. V. RIGGS, 274 U.S. 208, 211-12.  ALTHOUGH THE RECORD CONTAINS NO
SPECIFIC OBJECTION BY THE PETITIONER TO THE AMENDMENT OF THE COMPLAINT
BY ADDING THE CAUSE OF ACTION UNDER THE ANTI-TRUST LAWS, THE OPINION OF
THE DISTRICT COURT RECITES THAT THE PARTIES "HAVE NOW BEEN HEARD UPON
THIS (RESPONDENT'S) MOTION" TO AMEND THE COMPLAINT, AND THAT THE
"QUESTION PRESENTED IS WHETHER THIS AMENDMENT SHOULD BE ALLOWED."  42
F.SUPP.  AT 939.  THE PETITIONER'S RESISTANCE TO THE ENTERTAINMENT BY
THE DISTRICT COURT OF THE PROPOSED CLAIM UNDER THE CLAYTON ACT MUST
MEAN THAT HE OBJECTED TO BEING SUED IN THE FEDERAL DISTRICT COURT IN
MASSACHUSETTS BECAUSE HE WAS NOT AMENABLE TO THE PROCESS OF THAT COURT;
IN OTHER WORDS, BECAUSE THAT COURT WAS WITHOUT VENUE. 

IN VACATING THE JUDGMENT OF THE DISTRICT COURT, THE CIRCUIT COURT OF
APPEALS STATED:  "THE FACT THAT IN ALL PROBABILITY THE PLAINTIFF IN THE
CASE AT BAR COULD NOT BRING A SEPARATE ACTION UNDER THE ANTI-TRUST LAWS
AGAINST THE DEFENDANT IN THE DISTRICT COURT SITTING IN MASSACHUSETTS
BECAUSE THE DEFENDANT COULD AVOID THE SERVICE OF PROCESS UPON HIM BY
REMAINING OUTSIDE OF THE DISTRICT CANNOT AFFECT THE JURISDICTION OF THE
COURT TO ALLOW THE AMENDMENT.  THIS IS ONLY A FACT TO BE CONSIDERED BY
THE DISTRICT COURT IN EXERCISING ITS DISCRETIONARY POWER TO ALLOW OR
DISALLOW THE AMENDMENT.  SINCE THE COURT BELOW DID NOT EXERCISE ITS
DISCRETIONARY POWER BUT RULED THAT IT LACKED JURISDICTION TO ALLOW THE
AMENDMENT WE MUST REMAND TO THAT COURT FOR FURTHER PROCEEDINGS."  131
F.2D 190, 194-95.  THE CIRCUIT COURT OF APPEALS PLAINLY DID NOT REGARD
THE PETITIONER AS HAVING WAIVED HIS OBJECTION TO THE "JURISDICTION" OR
VENUE OF THE DISTRICT COURT IN MASSACHUSETTS.  IT PLACED ITS REVERSAL
OF THE DISTRICT COURT ON ANOTHER GROUND, THE CORRECTNESS OF WHICH I
SHALL CONSIDER LATER. 

NOR CAN THE PETITION FOR CERTIORARI, READ IN ITS ENTIRETY, BE
CONSTRUED AS AN ABANDONMENT OF THE PETITIONER'S OBJECTION TO THE VENUE
OF THE MASSACHUSETTS DISTRICT COURT.  TRUE ENOUGH, THE "ONLY QUESTION
PRESENTED" IS STATED TO BE "WHETHER A PLAINTIFF MAY AMEND HIS COMPLAINT
IN A REMOVED ACTION SO AS TO STATE A NEW AND INDEPENDENT CAUSE OF
ACTION AGAINST THE DEFENDANT WHICH WOULD BE OUTSIDE THE STATE COURT'S
JURISDICTION."  BUT THE TEXT OF THE PETITION MAKES IT CLEAR THAT THE
PETITIONER'S "JURISDICTIONAL" OBJECTIONS INCLUDED THE CLAIM THAT VENUE
WAS NOT PROPERLY LAID IN THE MASSACHUSETTS DISTRICT COURT.  ON PAGES 16
AND 17, FOR EXAMPLE, HE STATES: 

"THE QUESTION OF VENUE OR JURISDICTION OF THE PERSON IS NOT A MATTER
LIGHTLY TO BE DISREGARDED.  IT DEPENDS UPON SUBSTANTIVE LAW.  THE RIGHT
OF A PERSON TO BE SUED ONLY IN THE DISTRICT OF WHICH HE IS AN
INHABITANT IS CAREFULLY GUARDED BY THE GENERAL VENUE STATUTE, JUDICIAL
CODE, SECTION 51.  ...  NOW, BEING 'FOUND' IS A SPORADIC, TEMPORARY
THING, VERY DIFFERENT FROM BEING 'AN INHABITANT.'  THE PETITIONER
FREEMAN WAS 'FOUND' AT ONE PARTICULAR TIME AND SUBJECTED TO SUIT ON A
CAUSE OF ACTION IN CONTRACT.  ...  THE ORIGINAL CAUSE OF ACTION WAS
REMOVED TO THE DISTRICT COURT, BUT THIS DID NOT MAKE FREEMAN 'AN
INHABITANT' SO THAT HE COULD BE SERVED AT ANY TIME.  THE ONLY WAY IN
WHICH JURISDICTION CAN BE OBTAINED OF FREEMAN IN THIS DISTRICT FOR A
CAUSE OF ACTION UNDER THE ANTITRUST LAWS IS BY HAVING HIM 'FOUND'
HERE.  THIS RESULT CANNOT BE SECURED BY 'AMENDING' AN EXISTING
COMPLAINT, BECAUSE IT WOULD NOT ONLY VIOLATE THE WHOLE THEORY OF VENUE,
BUT IT WOULD BE IN DIRECT VIOLATION OF RULE 82(OF THE FEDERAL RULES OF
CIVIL PROCEDURE), WHICH IS SUPERIOR TO RULE 15." 

I QUITE AGREE WITH THE COURT THAT VENUE IS A PRIVILEGE THAT MAY BE
WAIVED, THAT IT "MAY BE LOST BY FAILURE TO ASSERT IT SEASONABLY." 
NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165, 168.  BUT THE WAIVER MUST
BE ACTUAL, NOT FICTITIOUS.  THERE MUST BE A SURRENDER, NOT RESISTANCE. 
NO DOUBT A PARTY WHO, HAVING A VALID OBJECTION TO THE VENUE OF A SUIT,
PLEADS TO THE MERITS INSTEAD OF MAKING OBJECTION WAIVES HIS OBJECTION. 
PANAMA R. CO. V. JOHNSON, 264 U.S. 375, 385; BURNRITE COAL CO. V.
RIGGS, 274 U.S. 208, 212.  HERE THE PETITIONER ANSWERED THE STATE SUIT
BEFORE AND NOT AFTER THE RESPONDENT SOUGHT TO AMEND ITS COMPLAINT TO
ADD AN EXCLUSIVELY FEDERAL CAUSE OF ACTION UNDER THE ANTI-TRUST LAWS. 
HIS DEFENSE TO THE CONTRACT CLAIM COULD NOT POSSIBLY WAIVE ANY VENUE
OBJECTIONS WITH RESPECT TO A CLAIM SUBSEQUENTLY MADE UNDER THE ANTI
TRUST LAWS.  ONE CANNOT WAIVE AN OBJECTION WHICH HE CANNOT ASSERT. 

THE COURT RELIES UPON RULES 15 AND 18 OF THE FEDERAL RULES OF CIVIL
PROCEDURE, WHICH ESTABLISH LIBERAL RULES FOR THE JOINDER OF CAUSES OF
ACTION.  BUT THESE RULES DO NOT DISPENSE WITH THE REQUIREMENTS OF
VENUE.  RULE 82 EXPLICITLY PROVIDES THAT "THESE RULES SHALL NOT BE
CONSTRUED TO EXTEND OR LIMIT THE JURISDICTION OF THE DISTRICT COURTS OF
THE UNITED STATES OR THE VENUE OF ACTIONS THEREIN."  BECAUSE CAUSES OF
ACTION COULD BE JOINED, IF PROPERLY BROUGHT, DOES NOT PROVE THAT THEY
ARE PROPERLY BROUGHT.  A LIBERAL RULE REGARDING JOINDER OF ACTIONS DOES
NOT ELIMINATE THE PROBLEMS OF SUABILITY CREATED BY THE VARIOUS VENUE
PROVISIONS.  THE REMOVAL STATUTE ITSELF DOES NOT IMPLIEDLY REPEAL THE
MULTITUDINOUS VENUE RESTRICTIONS IMPOSED BY CONGRESS.  AND CERTAINLY
RULES 15 AND 18 DID NOT DO SO, ESPECIALLY SINCE RULE 82 CONTAINS A
SPECIFIC DISAVOWAL OF SUCH IMPLICATIONS. 

THE PROVISION OF THE REMOVAL STATUTE THAT ONCE A SUIT IS REMOVED, THE
DISTRICT COURT SHALL "PROCEED THEREIN AS IF THE SUIT HAD BEEN
ORIGINALLY COMMENCED IN SAID DISTRICT COURT," SEC. 38 OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 81, IN NO WISE EXTENDS THE JURISDICTION OR VENUE
OF THE DISTRICT COURT AFTER REMOVAL.  THE PROVISION MEANS ONLY THAT
WHEN A SUIT IS REMOVED TO THE FEDERAL COURTS, IT SHALL BE DISPOSED OF
IN THE MANNER IN WHICH BUSINESS IS CONDUCTED THERE.  THE REQUIREMENT OF
FEDERAL LAW THAT THERE BE A UNANIMOUS VERDICT OF THE JURY, FOR EXAMPLE,
APPLIES EVEN TO SUITS REMOVED FROM A STATE COURT WHERE A MAJORITY OF
EIGHT CAN RENDER A VERDICT.  SEE MINNEAPOLIS & ST. LOUIS R. CO. V.
BOMBOLIS, 241 U.S. 211.  OF COURSE, THEREFORE, THE FEDERAL RULES OF
CIVIL PROCEDURE ARE EQUALLY APPLICABLE TO SUITS REMOVED TO THE FEDERAL
COURTS.  RULE 81(C).  BUT THE VENUE RESTRICTIONS IMPOSED BY FEDERAL
LEGISLATION AND LEFT UNDISTURBED BY THE RULES ARE NOT ELIMINATED MERELY
BECAUSE THE SUIT IS ONE WHICH HAS BEEN REMOVED.  THE VENUE OF THE
FEDERAL COURT IS THE SAME, WHETHER THE SUIT BE ORIGINALLY INSTITUTED IN
OR REMOVED TO THE FEDERAL COURT.  IT CERTAINLY IS NOT ENLARGED BY THE
FACT OF REMOVAL. 

JOINDER IS PERMISSIBLE ONLY IF THE CAUSES OF ACTION ARE PROPERLY IN
COURT, THAT IS, IF THE REQUIREMENTS OF VENUE AS WELL AS JURISDICTION
ARE SATISFIED.  IF THESE REQUIREMENTS ARE NOT MET, AN ORDER OF COURT
DIRECTING JOINDER CANNOT DISPENSE WITH THEM.  THE RESPONDENT HERE
SOUGHT TO ADD A CAUSE OF ACTION FOR TREBLE DAMAGES UNDER SEC. 4 OF THE
CLAYTON ACT - A CAUSE OF ACTION OVER WHICH THE DISTRICT COURT IN
MASSACHUSETTS COULD HAVE VENUE ONLY IF THE PETITIONER RESIDED IN
MASSACHUSETTS, OR WAS FOUND THERE EITHER IN PERSON OR THROUGH AN
ACCREDITED AGENT.  BUT AT THE TIME OF THE PROPOSED AMENDMENT TO THE
COMPLAINT SEEKING TO ADD THIS CLAIM, THE PETITIONER WAS NOT A RESIDENT
OF MASSACHUSETTS NOR CAN HE BE SAID TO HAVE BEEN "FOUND" THERE IN ANY
LEGITIMATE SENSE OF THE WORD.  HIS ONLY CONTACT WITH MASSACHUSETTS WAS
THE FACT THAT HE WAS A DEFENDANT IN AN ACTION FOR BREACH OF CONTRACT
BROUGHT IN A MASSACHUSETTS STATE COURT AND PROPERLY REMOVED TO THE
FEDERAL DISTRICT COURT THERE.  IF THE RESPONDENT HAD INSTITUTED A
SEPARATE SUIT IN MASSACHUSETTS AGAINST THE PETITIONER UNDER THE ANTI
TRUST LAWS, NEITHER THE STATE COURT, BLUMENSTOCK BROS. V. CURTIS
PUBLISHING CO., 252 U.S. 436, 440, NOR THE FEDERAL COURT IN
MASSACHUSETTS COULD ENTERTAIN THE SUIT ON THE GROUND THAT THE
PETITIONER WAS "FOUND" THERE MERELY BECAUSE HE WAS A DEFENDANT TO THE
CONTRACT SUIT. 

I KNOW OF NO CASE WHICH HAS CONSTRUED THE REQUIREMENT OF "FOUND," AS
APPLIED TO A NATURAL PERSON, TO MEAN ANYTHING LESS THAN ACTUAL PHYSICAL
PRESENCE.  THE NEIRBO CASE IS OBVIOUSLY WITHOUT RELEVANCE HERE.  THE
PROBLEM THERE WAS THAT OF FITTING A FICTIVE PERSONALITY INTO LEGAL
CATEGORIES DESIGNED FOR NATURAL PERSONS.  A CORPORATION IS NEVER
"FOUND" ANYWHERE EXCEPT METAPHORICALLY.  IN RECOGNITION OF THIS FACT
THE NEIRBO CASE HELD THAT WHEN A CORPORATION ASSENTS TO THE CONDITIONS
GOVERNING THE DOING OF BUSINESS WITHIN A STATE, IT IS AS MUCH "FOUND"
THERE FOR PURPOSES OF FEDERAL LAW AS FOR THOSE OF STATE LAW.  BUT IN
THE CASE OF A NATURAL PERSON, HE CAN BE "FOUND" NOT METAPHORICALLY BUT
PHYSICALLY.  AND WHEN A PERSON IS NOT ACTUALLY PHYSICALLY PRESENT IN A
PLACE, HE IS NOT, "SO TO SPEAK," "FOUND" THERE EXCEPT IN THE WORLD OF
ALICE IN WONDERLAND. 

THE CASE THEREFORE REDUCES ITSELF TO THIS:  IF THE PETITIONER HAD NOT
REMOVED THE ACTION FOR BREACH OF CONTRACT TO THE FEDERAL COURT, HE
COULD NOT POSSIBLY BE COMPELLED TO DEFEND A SUIT UNDER THE ANTI-TRUST
LAWS BROUGHT AGAINST HIM IN MASSACHUSETTS.  HIS MERE EXERCISE OF THE
RIGHT OF REMOVAL GIVEN HIM BY CONGRESS HAS RESULTED IN HIS BEING MADE
SUBJECT TO SUIT IN A PLACE OTHER THAN THAT SPECIFIED BY CONGRESS IN
SEC. 4 OF THE CLAYTON ACT.  THIS IS TO ADD TO THE REMOVAL PRIVILEGE A
CONDITION OF HARDSHIP WHICH CONGRESS ITSELF HAS NOT IMPOSED FOR THE
SIMPLE REASON THAT IT RUNS COUNTER BOTH TO THE UNDERLYING ASSUMPTION OF
DIVERSITY JURISDICTION AND TO THE HISTORIC RULE THAT THE "JURISDICTION
OF A DISTRICT COURT IN PERSONAM HAS BEEN LIMITED TO THE DISTRICT OF
WHICH THE DEFENDANT IS AN INHABITANT OR IN WHICH HE CAN BE FOUND." 
ROBERTSON V. LABOR BOARD, 268 U.S. 619, 627.  THE COURT INVOKES NO
POLICY OF JUDICIAL ADMINISTRATION WHICH COULD WARRANT DISREGARD OF THIS
LONG ESTABLISHED LEGISLATIVE POLICY. 

THE DERIVATIVE NATURE OF REMOVAL JURISDICTION, SEE MINNESOTA V.
UNITED STATES, 305 U.S. 382, 389, IS NOT BASED UPON TECHNICAL RULES OF
LAW.  CONGRESS DEEMED IT FAIR AND JUST THAT A NONRESIDENT WHO IS BEING
SUED OUTSIDE HIS STATE SHOULD BE ABLE TO TRANSFER THE SUIT TO A NEUTRAL
FEDERAL COURT WITHOUT LOSING OR GAINING ANY PRIVILEGES BY SUCH
TRANSFER.  THE DECISION IN THIS CASE TURNS AN OPPORTUNITY GIVEN BY
CONGRESS TO ASSURE FAIRNESS AND IMPARTIALITY INTO A HOBSON'S CHOICE. 
BY REMOVING A SUIT TO THE FEDERAL COURT A DEFENDANT IS SUBJECTED TO A
LIABILITY - NAMELY, TO BE SUED IN A DISTRICT WHERE HE IS NEITHER A
RESIDENT NOR FOUND, UNDER A STATUTE PROVIDING THAT HE CAN BE SUED ONLY
WHERE HE IS EITHER A RESIDENT OR FOUND - FROM WHICH HE WOULD BE FREE IF
HE REMAINED IN THE STATE COURT.  IN OTHER WORDS, THE RIGHT OF REMOVAL
IS CURTAILED BY DEPRIVING A DEFENDANT OF TERRITORIAL IMMUNITIES FROM
SUIT GIVEN BY CONGRESS IN THE ENFORCEMENT OF FEDERAL STATUTES,
PRESUMABLY BECAUSE IT DEEMED PLACE FOR SUIT IMPORTANT IN A COUNTRY
HAVING THE DIMENSIONS OF A CONTINENT. 

MR. JUSTICE ROBERTS, MR. JUSTICE REED AND MR. JUSTICE JACKSON JOIN IN
THIS DISSENT. 
..END :








GREAT LAKES CO. V. HUFFMAN, 319 U.S. 293 


NO. 849.  ARGUED MAY 5, 6, 1943.  - DECIDED MAY 24, 1943.  - 134 F.2D
213, AFFIRMED. 


1.  IN THE LIGHT OF ITS OPINION, FINDINGS, AND CONCLUSIONS OF LAW, THE
DISTRICT COURT'S DISMISSAL OF THE SUIT RESTS WHOLLY UPON ITS
DECLARATION THAT AS APPLIED TO THE PLAINTIFFS THE STATE STATUTE IS
CONSTITUTIONAL; AND ITS JUDGMENT IS, IN EFFECT, A DECLARATORY
JUDGMENT.  P. 295. 

2.  WHERE FEDERAL COURTS IN THE EXERCISE OF THEIR JURISDICTION TO
RENDER DECLARATORY JUDGMENTS ARE CALLED ON TO ADJUDICATE WHAT ARE
ESSENTIALLY EQUITABLE CAUSES OF ACTION, THEY ARE FREE UPON EQUITABLE
GROUNDS TO GRANT OR WITHHOLD THE RELIEF PRAYED; AND CONSIDERATIONS
WHICH HAVE LED FEDERAL COURTS OF EQUITY TO REFUSE TO ENJOIN THE
COLLECTION OF STATE TAXES, SAVE IN EXCEPTIONAL CASES, REQUIRE A LIKE
RESTRAINT IN THE USE OF THE DECLARATORY JUDGMENT PROCEDURE.  P. 300. 

3.  IT IS IN THE PUBLIC INTEREST THAT FEDERAL COURTS OF EQUITY SHOULD
EXERCISE THEIR DISCRETIONARY POWER TO GRANT OR WITHHOLD RELIEF SO AS TO
AVOID NEEDLESS OBSTRUCTION OF THE DOMESTIC POLICY OF THE STATES, AND
WHEN ASKED TO ENJOIN AN UNCONSTITUTIONAL STATE TAX IT IS THEIR DUTY TO
WITHHOLD RELIEF WHEN STATE LAW WITH THE RIGHT OF APPEAL TO THIS COURT
AFFORDS ADEQUATE PROTECTION.  P. 300. 

4.  IN A SUIT IN THE FEDERAL DISTRICT COURT AGAINST A STATE OFFICER
CHARGED WITH THE ADMINISTRATION AND ENFORCEMENT OF THE LOUISIANA
UNEMPLOYMENT COMPENSATION LAW, BROUGHT BY PLAINTIFFS ENGAGED IN
NAVIGATION AND OPERATION OF VESSELS USED IN IMPROVING NAVIGABLE WATERS
OF THE STATE, AND PRAYING A DECLARATORY JUDGMENT THAT THE STATE LAW AS
APPLIED TO THEM AND THEIR EMPLOYEES IS UNCONSTITUTIONAL, IT WAS THE
DUTY OF THE COURT TO WITHHOLD SUCH RELIEF, IT APPEARING THAT UNDER THE
STATE LAW A TAXPAYER WHO PAYS A CHALLENGED TAX TO THE APPROPRIATE STATE
OFFICER MAY MAINTAIN A SUIT FOR REIMBURSEMENT.  P. 300. 

5.  THE ACTS OF AUGUST 21, 1937 AND AUGUST 30, 1935 DO NOT REQUIRE A
RESULT DIFFERENT FROM THAT HERE REACHED.  P. 301. 

GREAT LAKES DREDGE & DOCK CO. ET AL. V. HUFFMAN, ADMINISTRATOR,
DIVISION OF EMPLOYMENT SECURITY, LOUISIANA DEPARTMENT OF LABOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 318 U.S. 754, TO REVIEW THE AFFIRMANCE OF A JUDGMENT, 43
F.SUPP.  981, DISMISSING A SUIT FOR A DECLARATORY JUDGMENT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS BROUGHT THIS SUIT IN THE DISTRICT COURT AGAINST
RESPONDENT, A STATE OFFICER CHARGED WITH THE ADMINISTRATION AND
ENFORCEMENT OF THE LOUISIANA UNEMPLOYMENT COMPENSATION LAW (ACT 97 OF
1936, AS AMENDED BY ACT 164 OF 1938, ACT 16 OF THE FIRST EXTRAORDINARY
SESSION OF 1940, AND ACTS 10 AND 11 OF 1940).  THE COMPLAINT ALLEGES
THAT PETITIONERS HAVE NUMEROUS CLASSES OF EMPLOYEES ENGAGED IN THE
NAVIGATION AND OPERATION OF DREDGES AND PILE DRIVERS AND IN THE
OPERATION OF QUARTER BOATS, TUGS, LAUNCHES, BARGES AND OTHER VESSELS,
ALL USED IN DEEPENING, DREDGING, EXTENDING AND OTHERWISE IMPROVING
CHANNELS UNDERLYING THE NAVIGABLE WATERS OF THE STATE; AND THAT THE TAX
OR CONTRIBUTION TO THE STATE UNEMPLOYMENT INSURANCE FUND WHICH THE
STATE LAW WOULD EXACT FROM EACH OF PETITIONERS EXCEEDED, WHEN THE SUIT
WAS BROUGHT, THE SUM OF $3,000.  THE RELIEF PRAYED IS A DECLARATORY
JUDGMENT THAT THE STATE LAW AS APPLIED TO PETITIONERS AND THEIR
EMPLOYEES IS UNCONSTITUTIONAL AND VOID. 

AFTER A TRIAL THE DISTRICT COURT HELD THE STATUTE APPLICABLE TO
PETITIONERS AND THEIR EMPLOYEES AND, AS APPLIED TO THEM, A VALID
EXERCISE OF STATE POWER.  43 F.SUPP.  981.  THE FORMAL JUDGMENT ORDERED
DISMISSAL OF THE SUIT, BUT IT IS TO BE INTERPRETED IN THE LIGHT OF THE
COURT'S OPINION, FINDINGS, AND CONCLUSIONS OF LAW.  METROPOLITAN CO. V.
KAW VALLEY DISTRICT, 223 U.S. 519, 523; GULF REFINING CO. V. UNITED
STATES, 269 U.S. 125, 135; CLARK V. WILLIARD, 292 U.S. 112, 118;
AMERICAN PROPELLER CO. V. UNITED STATES, 300 U.S. 475, 479-80.  SO
INTERPRETED IT RESTS WHOLLY ON THE COURT'S DECLARATION THAT THE STATUTE
APPLIED TO PETITIONERS IS CONSTITUTIONAL; IT IS THUS IN EFFECT A
DECLARATORY JUDGMENT. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED, 134 F.2D 213,
HOLDING THAT THE STATUTE, IN EXACTING FROM EMPLOYERS CONTRIBUTIONS TO
THE STATE UNEMPLOYMENT COMPENSATION FUND, IS A VALID EXERCISE OF THE
STATE TAXING POWER (SEE STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548;
CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495); THAT THE APPLICATION OF
THE ACT TO PETITIONERS WOULD NOT INTERFERE WITH ANY CHARACTERISTIC
FEATURE OF THE GENERAL MARITIME LAW IN ITS INTERSTATE AND INTERNATIONAL
ASPECTS SO AS TO FALL UNDER THE BAN OF SOUTHERN PACIFIC CO. V. JENSEN,
244 U.S. 205 AND CASES FOLLOWING IT; AND THAT THE FEDERAL SOCIAL
SECURITY ACT, 26 U.S.C. SEC. 1607(C)(4), BY EXEMPTING FROM ITS
OPERATION OFFICERS AND CREWS OF VESSELS, HAS NOT "PREEMPTED THE FIELD"
OR OTHERWISE PRECLUDED THE STATE FROM APPLYING ITS LAW WITH RESPECT TO
THE EMPLOYEES IN QUESTION. 

BECAUSE OF THE PUBLIC IMPORTANCE OF THE QUESTIONS DECIDED, WE GRANTED
CERTIORARI, 318 U.S. 754, AND SET THE CASE FOR ARGUMENT WITH STANDARD
DREDGING CORP. V. MURPHY AND INTERNATIONAL ELEVATING CO. V. MURPHY,
POST, P. 306.  IN OUR ORDER GRANTING THE WRIT, WE REQUESTED COUNSEL "TO
DISCUSS IN THEIR BRIEFS AND ON ORAL ARGUMENT THE QUESTION WHETHER THE
DECLARATORY JUDGMENT PROCEDURE CAN BE APPROPRIATELY USED IN THIS CASE
WHERE THE COMPLAINT SEEKS A JUDGMENT AGAINST A STATE OFFICER TO PREVENT
ENFORCEMENT OF A STATE STATUTE." 

THE STATE ACT, AS THE COURT BELOW HELD, EXACTS OF EMPLOYERS PAYMENTS
INTO THE STATE UNEMPLOYMENT INSURANCE FUND, IN THE NATURE OF AN EXCISE
TAX UPON THE EXERCISE OF THE RIGHT OR PRIVILEGE OF EMPLOYING
INDIVIDUALS AND MEASURED BY A PERCENTAGE OF THE WAGES PAID.  SEE
CARMICHAEL V. SOUTHERN COAL & COKE CO., SUPRA.  PETITIONERS HAVE
CHALLENGED THE STATE'S RIGHT TO COLLECT THE TAX, AND HAVE INTERPOSED,
AS A BARRIER TO THE COLLECTION, THE PRESENT SUIT IN THE FEDERAL COURT
FOR A DECLARATORY JUDGMENT.  THE DISTRICT COURT, AS WE HAVE INDICATED,
HAS IN SUBSTANCE GIVEN A DECLARATORY JUDGMENT, WHICH THE CIRCUIT COURT
OF APPEALS HAS SUSTAINED.  SAVE FOR THAT PURPOSE THOSE COURTS HAD NO
OCCASION TO ENTERTAIN THE SUIT, OR PRONOUNCE ANY JUDGMENT IN IT.
NEITHER COURT, NOR ANY OF THE PARTIES, HAS QUESTIONED THE SUFFICIENCY
OF THE PLEADINGS TO PRESENT A CASE FOR A DECLARATORY JUDGMENT.  WITHOUT
RAISING THAT ISSUE HERE WE PASS AT ONCE TO THE QUESTION, SUBMITTED TO
COUNSEL, WHETHER THE DECLARATORY JUDGMENT PROCEDURE MAY BE
APPROPRIATELY RESORTED TO IN THE CIRCUMSTANCES OF THIS CASE. 

IN ANSWERING IT THE NATURE OF THE REMEDY AFFORDED TO TAXPAYERS BY
STATE LAW FOR THE ILLEGAL EXACTION OF THE TAX IS OF IMPORTANCE. 
DIRECTS THAT:  "THE LEGISLATURE SHALL PROVIDE AGAINST THE ISSUANCE OF
PROCESS TO RESTRAIN THE COLLECTION OF ANY TAX AND FOR A COMPLETE AND
ADEQUATE REMEDY FOR THE PROMPT RECOVERY BY EVERY TAXPAYER OF ANY
ILLEGAL TAX PAID BY HIM."  AND ACT 330 OF 1938 SETS UP A COMPLETE
STATUTORY SCHEME TO CARRY INTO EFFECT THE CONSTITUTIONAL PROVISION.  BY
IT THE COURTS OF THE STATE ARE FORBIDDEN TO RESTRAIN THE COLLECTION OF
ANY STATE TAX; AND ANY PERSON AGGRIEVED AND "RESISTING THE PAYMENT OF
ANY AMOUNT FOUND DUE, OR THE ENFORCEMENT OF ANY PROVISION OF SUCH LAWS
IN RELATION THERETO" SHALL PAY THE TAX TO THE APPROPRIATE STATE OFFICER
AND FILE SUIT FOR ITS RECOVERY IN EITHER THE STATE OR FEDERAL COURTS. 
PENDING THE SUIT THE AMOUNT COLLECTED IS REQUIRED TO BE SEGREGATED AND
HELD SUBJECT TO ANY JUDGMENT RENDERED IN THE SUIT.  IF THE TAXPAYER
PREVAILS IN THE SUIT, INTEREST AT TWO PER CENT PER ANNUM IS ADDED TO
THE AMOUNT OF TAXES REFUNDED. 

THIS COURT HAS RECOGNIZED THAT THE FEDERAL COURTS, IN THE EXERCISE OF
THE SOUND DISCRETION WHICH HAS TRADITIONALLY GUIDED COURTS OF EQUITY IN
GRANTING OR WITHHOLDING THE EXTRAODINARY RELIEF WHICH THEY MAY AFFORD,
WILL NOT ORDINARILY RESTRAIN STATE OFFICERS FROM COLLECTING STATE TAXES
WHERE STATE LAW AFFORDS AN ADEQUATE REMEDY TO THE TAXPAYER.  MATTHEWS
V. RODGERS, 284 U.S. 521.  THIS WITHHOLDING OF EXTRAORDINARY RELIEF BY
COURTS HAVING AUTHORITY TO GIVE IT IS NOT A DENIAL OF THE JURISDICTION
WHICH CONGRESS HAS CONFERRED ON THE FEDERAL COURTS, OR OF THE SETTLED
RULE THAT THE MEASURE OF INADEQUACY OF THE PLAINTIFF'S LEGAL REMEDY IS
THE LEGAL REMEDY AFFORDED BY THE FEDERAL NOT THE STATE COURTS. 
STRATTON V. ST. LOUIS S.W. RY. CO., 284 U.S. 530, 533-34; DI GIOVANNI
V. CAMDEN INS. ASSN., 296 U.S. 64, 69.  ON THE CONTRARY, IT IS BUT A
RECOGNITION THAT THE JURISDICTION CONFERRED ON THE FEDERAL COURTS
EMBRACES SUITS IN EQUITY AS WELL AS AT LAW, AND THAT A FEDERAL COURT OF
EQUITY, WHICH MAY IN AN APPROPRIATE CASE REFUSE TO GIVE ITS SPECIAL
PROTECTION TO PRIVATE RIGHTS WHEN THE EXERCISE OF ITS JURISDICTION
WOULD BE PREJUDICIAL TO THE PUBLIC INTEREST (UNITED STATES V. DERN, 289
U.S. 352, 359-360; VIRGINIAN RY. CO. V. FEDERATION, 300 U.S. 515, 549
53), SHOULD STAY ITS HAND IN THE PUBLIC INTEREST WHEN IT REASONABLY
APPEARS THAT PRIVATE INTERESTS WILL NOT SUFFER.  SEE PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176, 185, AND CASES CITED. 

IT IS IN THE PUBLIC INTEREST THAT FEDERAL COURTS OF EQUITY SHOULD
EXERCISE THEIR DISCRETIONARY POWER TO GRANT OR WITHHOLD RELIEF SO AS TO
AVOID NEEDLESS OBSTRUCTION OF THE DOMESTIC POLICY OF THE STATES. 

"THE SCRUPULOUS REGARD FOR THE RIGHTFUL INDEPENDENCE OF STATE
GOVERNMENTS WHICH SHOULD AT ALL TIMES ACTUATE THE FEDERAL COURTS, AND A
PROPER RELUCTANCE TO INTERFERE BY INJUNCTION WITH THEIR FISCAL
OPERATIONS, REQUIRE THAT SUCH RELIEF SHOULD BE DENIED IN EVERY CASE
WHERE THE ASSERTED FEDERAL RIGHT MAY BE PRESERVED WITHOUT IT.  WHENEVER
THE QUESTION HAS BEEN PRESENTED, THIS COURT HAS UNIFORMLY HELD THAT THE
MERE ILLEGALITY OR UNCONSTITUTIONALITY OF A STATE OR MUNICIPAL TAX IS
NOT IN ITSELF A GROUND FOR EQUITABLE RELIEF IN THE COURTS OF THE UNITED
STATES.  IF THE REMEDY AT LAW IS PLAIN, ADEQUATE, AND COMPLETE, THE
AGGRIEVED PARTY IS LEFT TO THAT REMEDY IN THE STATE COURTS, FROM WHICH
THE CAUSE MAY BE BROUGHT TO THIS COURT FOR REVIEW IF ANY FEDERAL
QUESTION BE INVOLVED."  MATTHEWS V. RODGERS, SUPRA, 525-26. 

INTERFERENCE WITH STATE INTERNAL ECONOMY AND ADMINISTRATION IS
INSEPARABLE FROM ASSAULTS IN THE FEDERAL COURTS ON THE VALIDITY OF
STATE TAXATION, AND NECESSARILY ATTENDS INJUNCTIONS, INTERLOCUTORY OR
FINAL, RESTRAINING COLLECTION OF STATE TAXES.  THESE ARE THE
CONSIDERATIONS OF MOMENT WHICH HAVE PERSUADED FEDERAL COURTS OF EQUITY
TO DENY RELIEF TO THE TAXPAYER - ESPECIALLY WHEN THE STATE, ACTING
WITHIN ITS CONSTITUTIONAL AUTHORITY, HAS SET UP ITS OWN ADEQUATE
PROCEDURE FOR SECURING TO THE TAXPAYER THE RECOVERY OF AN ILLEGALLY
EXACTED TAX. 

CONGRESS RECOGNIZED AND GAVE SANCTION TO THIS PRACTICE OF FEDERAL
EQUITY COURTS BY THE ACT OF AUGUST 21, 1937, 50 STAT. 738, ENACTED AS
AN AMENDMENT TO SEC. 24 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 41(1). 
THIS PROVIDES THAT "NO DISTRICT COURT SHALL HAVE JURISDICTION OF ANY
SUIT TO ENJOIN, SUSPEND, OR RESTRAIN THE ASSESSMENT, LEVY, OR
COLLECTION OF ANY TAX IMPOSED BY OR PURSUANT TO THE LAWS OF ANY STATE
WHERE A PLAIN, SPEEDY, AND EFFICIENT REMEDY MAY BE HAD AT LAW OR IN
EQUITY IN THE COURTS OF SUCH STATE."  THE EARLIER REFUSAL OF FEDERAL
COURTS OF EQUITY TO INTERFERE WITH THE COLLECTION OF STATE TAXES UNLESS
THE THREATENED INJURY TO THE TAXPAYER IS ONE FOR WHICH THE STATE COURTS
AFFORD NO ADEQUATE REMEDY, AND THE CONFIRMATION OF THAT PRACTICE BY
CONGRESS, HAVE AN IMPORTANT BEARING UPON THE APPROPRIATE USE OF THE
DECLARATORY JUDGMENT PROCEDURE BY THE FEDERAL COURTS AS A MEANS OF
ADJUDICATING THE VALIDITY OF STATE TAXES. 

IT IS TRUE THAT THE ACT OF CONGRESS SPEAKS ONLY OF SUITS "TO ENJOIN,
SUSPEND, OR RESTRAIN THE ASSESSMENT, LEVY, OR COLLECTION OF ANY TAX"
IMPOSED BY STATE LAW, AND THAT THE DECLARATORY JUDGMENT PROCEDURE MAY
BE, AND IN THIS CASE WAS, USED ONLY TO PROCURE A DETERMINATION OF THE
RIGHTS OF THE PARTIES, WITHOUT AN INJUNCTION OR OTHER COERCIVE RELIEF. 
IT IS ALSO TRUE THAT THAT PROCEDURE MAY IN EVERY PRACTICAL SENSE
OPERATE TO SUSPEND COLLECTION OF THE STATE TAXES UNTIL THE LITIGATION
IS ENDED.  BUT WE FIND IT UNNECESSARY TO INQUIRE WHETHER THE WORDS OF
THE STATUTE MAY BE SO CONSTRUED AS TO PROHIBIT A DECLARATION BY FEDERAL
COURTS CONCERNING THE INVALIDITY OF A STATE TAX.  FOR WE ARE OF THE
OPINION THAT THOSE CONSIDERATIONS WHICH HAVE LED FEDERAL COURTS OF
EQUITY TO REFUSE TO ENJOIN THE COLLECTION OF STATE TAXES, SAVE IN
EXCEPTIONAL CASES, REQUIRE A LIKE RESTRAINT IN THE USE OF THE
DECLARATORY JUDGMENT PROCEDURE. 

THE STATUTORY AUTHORITY TO RENDER DECLARATORY JUDGMENTS PERMITS
FEDERAL COURTS BY A NEW FORM OF PROCEDURE TO EXERCISE THE JURISDICTION
TO DECIDE CASES OR CONTROVERSIES, BOTH AT LAW AND IN EQUITY, WHICH THE
JUDICIARY ACTS HAD ALREADY CONFERRED.  AETNA LIFE INS. CO. V. HAWORTH,
300 U.S. 227.  THUS THE FEDERAL DECLARATORY JUDGMENTS ACT (ACT OF JUNE
14, 1934, 48 STAT. 955, AS AMENDED, 28 U.S.C. SEC. 400) PROVIDES IN
SEC. 1 THAT A DECLARATION OF RIGHTS MAY BE AWARDED ALTHOUGH NO FURTHER
RELIEF BE ASKED, AND IN SEC. 2 THAT "FURTHER RELIEF BASED ON A
DECLARATORY JUDGMENT OR DECREE MAY BE GRANTED WHENEVER NECESSARY OR
PROPER." 

THE JURISDICTION OF THE DISTRICT COURT IN THE PRESENT SUIT, PRAYING
AN ADJUDICATION OF RIGHTS IN ANTICIPATION OF THEIR THREATENED
INFRINGEMENT, IS ANALOGOUS TO THE EQUITY JURISDICTION IN SUITS QUIA
TIMET OR FOR A DECREE QUIETING TITLE.  SEE NASHVILLE, C. & ST. L. RY.
CO. V. WALLACE, 288 U.S. 249, 263.  CALLED UPON TO ADJUDICATE WHAT IS
ESSENTIALLY AN EQUITABLE CAUSE OF ACTION, THE DISTRICT COURT WAS AS
FREE AS IN ANY OTHER SUIT IN EQUITY TO GRANT OR WITHHOLD THE RELIEF
PRAYED, UPON EQUITABLE GROUNDS.  THE DECLARATORY JUDGMENTS ACT WAS NOT
DEVISED TO DEPRIVE COURTS OF THEIR EQUITY POWERS OR OF THEIR FREEDOM TO
WITHHOLD RELIEF UPON ESTABLISHED EQUITABLE PRINCIPLES.  IT ONLY
PROVIDED A NEW FORM OF PROCEDURE FOR THE ADJUDICATION OF RIGHTS IN
CONFORMITY TO THOSE PRINCIPLES.  THE SENATE COMMITTEE REPORT ON THE
BILL POINTED OUT THAT THIS COURT COULD, IN THE EXERCISE OF ITS EQUITY
POWER, MAKE RULES GOVERNING THE DECLARATORY JUDGMENT PROCEDURE.  S.
REP. NO. 1005, 73D CONG., 2D SESS., P. 6.  AND THE HOUSE REPORT
DECLARED THAT "LARGE DISCRETION IS CONFERRED UPON THE COURTS AS TO
WHETHER OR NOT THEY WILL ADMINISTER JUSTICE BY THIS PROCEDURE."  H.R.
REP. NO. 1264, 73D CONG., 2D SESS., P. 2; AND SEE BRILLHART V. EXCESS
INS. CO., 316 U.S. 491, 494; BORCHARD, DECLARATORY JUDGMENTS (2D ED.) 
P. 312. 

THE CONSIDERATIONS WHICH PERSUADED FEDERAL COURTS OF EQUITY NOT TO
GRANT RELIEF AGAINST AN ALLEGEDLY UNLAWFUL STATE TAX, AND WHICH LED TO
THE ENACTMENT OF THE ACT OF AUGUST 21, 1937, ARE PERSUASIVE THAT RELIEF
BY WAY OF DECLARATORY JUDGMENT MAY LIKEWISE BE WITHHELD IN THE SOUND
DISCRETION OF THE COURT.  WITH DUE REGARD FOR THESE CONSIDERATIONS, IT
IS THE COURT'S DUTY TO WITHHOLD SUCH RELIEF WHEN, AS IN THE PRESENT
CASE, IT APPEARS THAT THE STATE LEGISLATURE HAS PROVIDED THAT ON
PAYMENT OF ANY CHALLENGED TAX TO THE APPROPRIATE STATE OFFICER, THE
TAXPAYER MAY MAINTAIN A SUIT TO RECOVER IT BACK.  IN SUCH A SUIT HE MAY
ASSERT HIS FEDERAL RIGHTS AND SECURE A REVIEW OF THEM BY THIS COURT. 
THIS AFFORDS AN ADEQUATE REMEDY TO THE TAXPAYER, AND AT THE SAME TIME
LEAVES UNDISTURBED THE STATE'S ADMINISTRATION OF ITS TAXES.    THE ACT
OF AUGUST 21, 1937, WAS PREDICATED UPON THE DESIRABILITY OF FREEING,
FROM INTERFERENCE BY THE FEDERAL COURTS, STATE PROCEDURES WHICH
AUTHORIZE LITIGATION CHALLENGING A TAX ONLY AFTER THE TAX HAS BEEN
PAID.  SEE S. REP. NO. 1035, 75TH CONG., 1ST SESS.: H.R. REP. NO. 1503,
75TH CONG., 1ST SESS.  EVEN THOUGH THE STATUTORY COMMAND BE DEEMED
RESTRICTED TO PROHIBITION OF INJUNCTIONS RESTRAINING COLLECTION OF
STATE TAXES, ITS ENACTMENT IS HARDLY AN INDICATION OF DISAPPROVAL OF
THE POLICY OF FEDERAL EQUITY COURTS, OR A MANDATORY WITHDRAWAL FROM
THEM OF THEIR TRADITIONAL POWER TO DECLINE JURISDICTION IN THE EXERCISE
OF THEIR DISCRETION. 

FOR LIKE REASONS, WE THINK IT PLAIN ALSO THAT THE ENACTMENT OF THE
ACT OF AUGUST 30, 1935, 49 STAT. 1027, 28 U.S.C. SEC. 400(1), WHICH
EXCLUDED FROM THE OPERATION OF THE DECLARATORY JUDGMENTS ACT ALL CASES
INVOLVING FEDERAL TAXES, CANNOT BE TAKEN TO DEPRIVE THE COURTS OF THEIR
DISCRETIONARY AUTHORITY TO WITHHOLD DECLARATORY RELIEF IN OTHER
APPROPRIATE CASES.  THIS AMENDMENT WAS PASSED MERELY FOR THE PURPOSE OF
"MAKING IT CLEAR" THAT THE DECLARATORY JUDGMENTS ACT WOULD NOT PERMIT
"A RADICAL DEPARTURE FROM THE LONG-CONTINUED POLICY OF CONGRESS" TO
REQUIRE PROMPT PAYMENT OF FEDERAL TAXES.  SEE S. REP. NO. 1240, 74TH
CONG., 1ST SESS., P. 11; H.R. REP. NO. 1885, 74TH CONG., 1ST SESS., P.
13. 

THE JUDGMENT OF DISMISSAL BELOW MUST THEREFORE BE AFFIRMED, BUT
SOLELY ON THE GROUND THAT, IN THE APPROPRIATE EXERCISE OF THE COURT'S
DISCRETION, RELIEF BY WAY OF A DECLARATORY JUDGMENT SHOULD HAVE BEEN
DENIED WITHOUT CONSIDERATION OF THE MERITS.  AFFIRMED. 
..END :








UNITED STATES V. JOHNSON, 319 U.S. 302 


NO. 840.  ARGUED MAY 11, 12, 1943.  - DECIDED MAY 24, 1943.  - 48
F.SUPP.  833, VACATED. 


UPON THE FACTS OF THIS CASE, THE DISTRICT COURT SHOULD HAVE GRANTED
THE GOVERNMENT'S MOTION TO DISMISS THE SUIT AS COLLUSIVE.  P. 305. 

UNITED STATES ET AL. V. JOHNSON. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF INDIANA. 

APPEAL FROM THE DISMISSAL OF A COMPLAINT IN A SUIT IN WHICH THE
UNITED STATES HAD INTERVENED AND IN WHICH THE DISTRICT COURT HELD
UNCONSTITUTIONAL THE EMERGENCY PRICE CONTROL ACT OF 1942. 

PER CURIAM. 

ONE ROACH, A TENANT OF RESIDENTIAL PROPERTY BELONGING TO APPELLEE,
BROUGHT THIS SUIT IN THE DISTRICT COURT ALLEGING THAT THE PROPERTY WAS
WITHIN A "DEFENSE RENTAL AREA" ESTABLISHED BY THE PRICE ADMINISTRATOR
PURSUANT TO SECS. 2(B) AND 302(D) OF THE EMERGENCY PRICE CONTROL ACT OF
1942, 56 STAT. 23; THAT THE ADMINISTRATOR HAD PROMULGATED MAXIMUM RENT
REGULATION NO. 8 FOR THE AREA; AND THAT THE RENT PAID BY ROACH AND
COLLECTED BY APPELLEE WAS IN EXCESS OF THE MAXIMUM FIXED BY THE
REGULATION.  THE COMPLAINT DEMANDED JUDGMENT FOR TREBLE DAMAGES AND
REASONABLE ATTORNEY'S FEES, AS PRESCRIBED BY SEC. 205(E) OF THE ACT. 
THE UNITED STATES, INTERVENING PURSUANT TO 28 U.S.C. SEC. 401, FILED A
BRIEF IN SUPPORT OF THE CONSTITUTIONALITY OF THE ACT, WHICH APPELLEE
HAD CHALLENGED BY MOTION TO DISMISS.  THE DISTRICT COURT DISMISSED THE
COMPLAINT ON THE GROUND - AS APPEARS FROM ITS OPINION (48 F.SUPP.  833)
AND JUDGMENT - THAT THE ACT AND THE PROMULGATION OF THE REGULATION
UNDER IT WERE UNCONSTITUTIONAL BECAUSE CONGRESS BY THE ACT HAD
UNCONSTITUTIONALLY DELEGATED LEGISLATIVE POWER TO THE ADMINISTRATOR. 

BEFORE ENTRY OF THE ORDER DISMISSING THE COMPLAINT, THE GOVERNMENT
MOVED TO REOPEN THE CASE ON THE GROUND THAT IT WAS COLLUSIVE AND DID
NOT INVOLVE A REAL CASE OR CONTROVERSY.  THIS MOTION WAS DENIED.  THE
GOVERNMENT BRINGS THE CASE HERE ON APPEAL UNDER SEC. 2 OF THE ACT OF
AUGUST 24, 1937, 50 STAT. 752, 28 U.S.C. SEC. 349A, AND ASSIGNS AS
ERROR BOTH THE RULING OF THE DISTRICT COURT ON THE CONSTITUTIONALITY OF
THE ACT, AND ITS REFUSAL TO REOPEN AND DISMISS THE CASE AS COLLUSIVE. 

THE APPEAL OF THE PLAINTIFF ROACH TO THIS COURT WAS ALSO ALLOWED BY
THE DISTRICT COURT AND IS NOW PENDING.  BUT THIS APPEAL HAS NOT BEEN
DOCKETED HERE BECAUSE OF HIS NEGLECT TO COMPLY WITH THE RULES OF THIS
COURT.  AS THE RECORD IS NOW BEFORE US ON THE GOVERNMENT'S APPEAL, WE
HAVE DIRECTED THAT THE TWO APPEALS BE CONSOLIDATED AND HEARD AS ONE
CASE.  WE ACCORDINGLY FIND IT UNNECESSARY TO CONSIDER THE QUESTION
WHICH WE REQUESTED COUNSEL TO DISCUSS, "WHETHER ANY CASE OR CONTROVERSY
EXISTS REVIEWABLE IN THIS COURT, IN THE ABSENCE OF AN APPEAL BY THE
PARTY PLAINTIFF IN THE DISTRICT COURT." 

THE AFFIDAVIT OF THE PLAINTIFF, SUBMITTED BY THE GOVERNMENT ON ITS
MOTION TO DISMISS THE SUIT AS COLLUSIVE, SHOWS WITHOUT CONTRADICTION
THAT HE BROUGHT THE PRESENT PROCEEDING IN A FICTITIOUS NAME; THAT IT
WAS INSTITUTED AS A "FRIENDLY SUIT" AT APPELLEE'S REQUEST; THAT THE
PLAINTIFF DID NOT EMPLOY, PAY, OR EVEN MEET, THE ATTORNEY WHO APPEARED
OF RECORD IN HIS BEHALF; THAT HE HAD NO KNOWLEDGE WHO PAID THE $15
FILING FEE IN THE DISTRICT COURT, BUT WAS ASSURED BY APPELLEE THAT AS
PLAINTIFF HE WOULD INCUR NO EXPENSE IN BRINGING THE SUIT; THAT HE DID
NOT READ THE COMPLAINT WHICH WAS FILED IN HIS NAME AS PLAINTIFF; THAT
IN HIS CONFERENCES WITH THE APPELLEE AND APPELLEE'S ATTORNEY OF RECORD,
NOTHING WAS SAID CONCERNING TREBLE DAMAGES AND HE HAD NO KNOWLEDGE OF
THE AMOUNT OF THE JUDGMENT PRAYED UNTIL HE READ OF IT IN A LOCAL
NEWSPAPER. 

APPELLEE'S COUNTER-AFFIDAVIT DID NOT DENY THESE ALLEGATIONS.  IT
ADMITTED THAT APPELLEE'S ATTORNEY HAD UNDERTAKEN TO PROCURE AN ATTORNEY
TO REPRESENT THE PLAINTIFF AND HAD ASSURED THE PLAINTIFF THAT HIS
PRESENCE IN COURT DURING THE TRIAL OF THE CAUSE WOULD NOT BE
NECESSARY.  IT APPEARS FROM THE DISTRICT COURT'S OPINION THAT NO BRIEF
WAS FILED ON THE PLAINTIFF'S BEHALF IN THAT COURT. 

THE GOVERNMENT DOES NOT CONTEND THAT, AS A RESULT OF THIS COOPERATION
OF THE TWO ORIGINAL PARTIES TO THE LITIGATION, ANY FALSE OR FICTITIOUS
STATE OF FACTS WAS SUBMITTED TO THE COURT.  BUT IT DOES INSIST THAT THE
AFFIDAVITS DISCLOSE THE ABSENCE OF A GENUINE ADVERSARY ISSUE BETWEEN
THE PARTIES, WITHOUT WHICH A COURT MAY NOT SAFELY PROCEED TO JUDGMENT,
ESPECIALLY WHEN IT ASSUMES THE GRAVE RESPONSIBILITY OF PASSING UPON THE
CONSTITUTIONAL VALIDITY OF LEGISLATIVE ACTION.  EVEN IN A LITIGATION
WHERE ONLY PRIVATE RIGHTS ARE INVOLVED, THE JUDGMENT WILL NOT BE
ALLOWED TO STAND WHERE ONE OF THE PARTIES HAS DOMINATED THE CONDUCT OF
THE SUIT BY PAYMENT OF THE FEES OF BOTH.  GARDNER V. GOODYEAR DENTAL
VULCANITE CO., 131 U.S. APPENDIX, CIII. 

HERE AN IMPORTANT PUBLIC INTEREST IS AT STAKE - THE VALIDITY OF AN
ACT OF CONGRESS HAVING FAR-REACHING EFFECTS ON THE PUBLIC WELFARE IN
ONE OF THE MOST CRITICAL PERIODS IN THE HISTORY OF THE COUNTRY.  THAT
INTEREST HAS BEEN ADJUDICATED IN A PROCEEDING IN WHICH THE PLAINTIFF
HAS HAD NO ACTIVE PARTICIPATION, OVER WHICH HE HAS EXERCISED NO
CONTROL, AND THE EXPENSE OF WHICH HE HAS NOT BORNE.  HE HAS BEEN ONLY
NOMINALLY REPRESENTED BY COUNSEL WHO WAS SELECTED BY APPELLEE'S COUNSEL
AND WHOM HE HAS NEVER SEEN.  SUCH A SUIT IS COLLUSIVE BECAUSE IT IS NOT
IN ANY REAL SENSE ADVERSARY.  IT DOES NOT ASSUME THE "HONEST AND ACTUAL
ANTAGONISTIC ASSERTION OF RIGHTS" TO BE ADJUDICATED - A SAFEGUARD
ESSENTIAL TO THE INTEGRITY OF THE JUDICIAL PROCESS, AND ONE WHICH WE
HAVE HELD TO BE INDISPENSABLE TO ADJUDICATION OF CONSTITUTIONAL
QUESTIONS BY THIS COURT.  CHICAGO & GRAND TRUNK RY. CO. V. WELLMAN, 143
U.S. 339, 345; AND SEE LORD V. VEAZIE, 8 HOW.  251; CLEVELAND V.
CHAMBERLAIN, 1 BLACK 419; BARTEMEYER V. IOWA, 18 WALL.  129, 134-35;
ATHERTON MILLS V. JOHNSTON, 259 U.S. 13, 15.  WHENEVER IN THE COURSE OF
LITIGATION SUCH A DEFECT IN THE PROCEEDINGS IS BROUGHT TO THE COURT'S
ATTENTION, IT MAY SET ASIDE ANY ADJUDICATION THUS PROCURED AND DISMISS
THE CAUSE WITHOUT ENTERING JUDGMENT ON THE MERITS.  IT IS THE COURT'S
DUTY TO DO SO WHERE, AS HERE, THE PUBLIC INTEREST HAS BEEN PLACED AT
HAZARD BY THE AMENITIES OF PARTIES TO A SUIT CONDUCTED UNDER THE
DOMINATION OF ONLY ONE OF THEM.  THE DISTRICT COURT SHOULD HAVE GRANTED
THE GOVERNMENT'S MOTION TO DISMISS THE SUIT AS COLLUSIVE.  WE
ACCORDINGLY VACATE THE JUDGMENT BELOW WITH INSTRUCTIONS TO THE DISTRICT
COURT TO DISMISS THE CAUSE ON THAT GROUND ALONE.  UNDER THE STATUTE, 28
U.S.C. SEC. 401, THE GOVERNMENT IS LIABLE FOR COSTS WHICH MAY BE TAXED
AS IN A SUIT BETWEEN PRIVATE LITIGANTS; COSTS IN THIS COURT WILL BE
TAXED AGAINST APPELLEE.  SO ORDERED. 
..END :
























STANDARD DREDGING CO. V. MURPHY, 319 U.S. 306 


NO. 722.  ARGUED MAY 5, 1943.  - DECIDED MAY 24, 1943.  - 289 N.Y. 119,
44 N.E.2D 391, AFFIRMED. 


1.  A STATE UNEMPLOYMENT INSURANCE TAX, LAID ON EMPLOYERS IN RESPECT
OF MARITIME EMPLOYEES WHOSE WORK IS ABOARD VESSELS ON NAVIGABLE WATERS
WITHIN THE STATE, IS NOT FORBIDDEN BY ART. 3, SEC. 2, OF THE
CONSTITUTION, WHICH GIVES THE FEDERAL COURTS EXCLUSIVE ADMIRALTY
JURISDICTION.  SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205,
DISTINGUISHED.  PP. 307, 310. 

2.  SUCH A TAX IS NOT OBJECTIONABLE AS INCONSISTENT WITH THE POWER OF
CONGRESS WHERE CONGRESS HAS NOT EXERCISED ITS POWER IN THE SAME FIELD. 
P. 309. 

3.  THE PROVISION OF THE FEDERAL SOCIAL SECURITY ACT EXEMPTING FROM
THE FEDERAL TAX THEREBY IMPOSED THE EMPLOYERS OF PERSONS EMPLOYED AS
OFFICERS OR MEMBERS OF THE CREWS OF VESSELS ON NAVIGABLE WATERS OF THE
UNITED STATES DOES NOT OPERATE TO EXEMPT SUCH EMPLOYERS FROM STATE
UNEMPLOYMENT INSURANCE TAXES.  P. 310. 

STANDARD DREDGING CORPORATION V. MURPHY, ACTING INDUSTRIAL
COMMISSIONER, ET AL.* 

*TOGETHER WITH NO. 723, INTERNATIONAL ELEVATING CO. V. MURPHY, ACTING
INDUSTRIAL COMMISSIONER, ET AL., ALSO ON APPEAL FROM THE SUPREME COURT
OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT. 

APPEAL FROM THE SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD
DEPARTMENT. 

APPEALS FROM JUDGMENTS OF THE COURT OF APPEALS OF NEW YORK (ENTERED
IN THE SUPREME COURT, APPELLATE DIVISION, ON REMITTITUR) REVERSING
JUDGMENTS OF THE APPELLATE DIVISION, 263 APP. DIV. 773, 31 N.Y.S.2D
183; 262 APP. DIV. 654, 30 N.Y.S.2D 721, AND AFFIRMING ORDERS OF THE
STATE UNEMPLOYMENT BOARD. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THESE CASES IS WHETHER THE NEW YORK UNEMPLOYMENT
INSURANCE TAX MAY BE COLLECTED FROM EMPLOYERS OF CERTAIN EMPLOYEES
ENGAGED IN MARITIME EMPLOYMENT ON THE WAGES OF THOSE EMPLOYEES.  THE
NEW YORK ACT LEVIES A PAYROLL TAX ON ALL EMPLOYERS OF FOUR OR MORE
PERSONS, WITH EXCEPTIONS NOT HERE MATERIAL, AND THE SUM THUS COLLECTED
IS PAID INTO A GENERAL FUND FOR THE BENEFIT OF ALL UNEMPLOYED PERSONS
COVERED.  FN1  THE EMPLOYEE IN 722 IS AN ASSISTANT COOK ON A DREDGE,
AND THE EMPLOYEE IN 723 IS A GRAIN WORKER ON A FLOATING ELEVATOR.  THE
VESSELS ON WHICH BOTH EMPLOYEES SERVED WERE ENGAGED PRIMARILY ON WORK
IN THE WATERS OF THE STATE OF NEW YORK DURING THE TAX PERIOD.  THE
APPELLANTS CHALLENGE THE VALIDITY OF THE STATUTE AS APPLIED ON TWO
GROUNDS: (1) IMPOSITION OF THE TAX ON MARITIME EMPLOYEES VIOLATES
ARTICLE 3, SEC. 2 OF THE CONSTITUTION, WHICH GIVES FEDERAL COURTS
EXCLUSIVE ADMIRALTY JURISDICTION; (2) CONGRESS HAS DECLARED EITHER
EXPRESSLY OR BY IMPLICATION THAT NO SUCH TAX SHALL BE IMPOSED ON
MARITIME EMPLOYERS.  NO OTHER QUESTIONS OF JURISDICTION TO TAX ARE
BEFORE US.  THE NEW YORK COURT OF APPEALS OVERRULED BOTH THESE
CONTENTIONS  FN2 AND THE CASES ARE HERE ON APPEAL UNDER SEC. 237(A) OF
THE JUDICIAL CODE. 

IN APPROACHING THIS PROBLEM, WE MAY PUT ASIDE TWO QUESTIONS AT THE
BEGINNING.  IT IS CONTENDED THAT THESE TWO EMPLOYEES ARE NOT "MEMBERS
OF A CREW" AND HENCE ARE OUTSIDE THE SCOPE BOTH OF ADMIRALTY
JURISDICTION AND OF THE RELEVANT STATUTES.  FN3  IN THE VIEW WE TAKE,
IT IS IMMATERIAL WHETHER OR NOT THE EMPLOYEES ARE CREW MEMBERS.  WE
ALSO NEED NOT CONSIDER WHETHER THESE TAXES AFFECT INTERSTATE OR FOREIGN
COMMERCE, SINCE CONGRESS HAS EXPRESSLY PROVIDED THAT A STATE SHALL NOT
BE PROHIBITED FROM LEVYING THE TAX BECAUSE THE EMPLOYER IS ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE, 26 U.S.C. 1600; PERKINS V.
PENNSYLVANIA, 314 U.S. 586.  THE ADDED CONTENTION THAT A VESSEL'S
FEDERAL LICENSE MAY BAR STATE TAXATION IS ONLY ANOTHER FORM OF THE
ARGUMENT THAT THE TAX BURDENS INTERSTATE COMMERCE,  FN4  AND NEED NOT
BE CONSIDERED SEPARATELY. 

THAT THE STATE IS VESTED WITH POWER TO IMPOSE TAXES IN GENERAL UPON
EMPLOYERS TO ALLEVIATE UNEMPLOYMENT, AND THAT THE AUTHORITY OF THE
STATE IS IN NO WISE IMPAIRED BY REASON OF BLENDING THE IMPOSITION OF A
TAX WITH THE RELIEF OF UNEMPLOYMENT HAS ALREADY BEEN DECIDED BY THIS
COURT.  CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495; STEWARD MACHINE
CO. V. DAVIS, 301 U.S. 548.  IN A SERIES OF CASES, HOWEVER, BEGINNING
WITH SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, THIS COURT CALLED
ATTENTION TO THE NECESSITY OF UNIFORMITY IN CERTAIN ASPECTS OF MARITIME
LAW, AND INVALIDATED SEVERAL STATE WORKMEN'S COMPENSATION ACTS AS
APPLIED ON THE GROUND THAT THEIR ENFORCEMENT WOULD INTERFERE WITH THAT
ESSENTIAL UNIFORMITY.  WE ARE NOW ASKED TO APPLY THE JENSEN DOCTRINE TO
THE FIELD OF UNEMPLOYMENT INSURANCE AND TO INVALIDATE THE STATUTE
BEFORE US ON THE GROUND THAT IT IS DESTRUCTIVE OF ADMIRALTY
UNIFORMITY.  THE EFFECT ON ADMIRALTY OF AN UNEMPLOYMENT INSURANCE
PROGRAM IS SO MARKEDLY DIFFERENT FROM THE EFFECT WHICH IT WAS FEARED
MIGHT FOLLOW FROM WORKMEN'S COMPENSATION LEGISLATION THAT WE FIND NO
REASON TO EXPAND THE JENSEN DOCTRINE INTO THIS NEW AREA.  INDEED, THE
JENSEN CASE HAS ALREADY BEEN SEVERELY LIMITED,  FN5  AND HAS NO
VITALITY BEYOND THAT WHICH MAY CONTINUE AS TO STATE WORKMEN'S
COMPENSATION LAWS.  CF. PARKER V. MOTOR BOAT SALES, 314 U.S. 244. 

GRANTING THAT THE FEDERAL GOVERNMENT MIGHT CHOOSE TO OPERATE ITS OWN
UNIFORM UNEMPLOYMENT INSURANCE SYSTEM FOR MARITIME WORKERS IF IT CHOSE,
FN6  "UNIFORMITY IS REQUIRED ONLY WHEN THE ESSENTIAL FEATURES OF AN
EXCLUSIVE FEDERAL JURISDICTION ARE INVOLVED."  JUST V. CHAMBERS, 312
U.S. 383, 392.  WHEN STATE COMPENSATION LAWS BEGAN TO PROVIDE A REMEDY
FOR MARITIME TORTS, IT WAS AT LEAST ARGUABLE THAT THE STATE REMEDY
INTERFERED WITH THE EXISTING ADMIRALTY SYSTEM OF RELIEF THROUGH ACTIONS
SUCH AS MAINTENANCE AND CURE.  BUT IN DEALING WITH UNEMPLOYMENT
INSURANCE "EXCLUSIVE FEDERAL JURISDICTION" IS NOT AFFECTED AT ALL. 
CONGRESS RETAINS THE POWER TO ACT IN THE FIELD, AND IN THE MEANTIME,
FEDERAL COURTS HAVE NOTHING TO DO WITH IT.  NO PRINCIPLE OF ADMIRALTY
REQUIRES UNIFORMITY OF STATE TAXATION.  TAXES ON VESSELS AND OTHER
BUSINESS ACTIVITIES OF OPERATORS HAVE PREVIOUSLY BEEN UPHELD.  FN7  WE
HOLD THAT NOTHING IN ARTICLE 3, SEC. 2 OF THE CONSTITUTION PLACES THIS
TAX BEYOND THE AUTHORITY OF THE STATE. 

THE SECOND CONTENTION IS THAT THE FEDERAL ACT PRECLUDES COVERAGE OF
THESE EMPLOYERS BY THE STATE.  TITLE 9 OF THE FEDERAL SOCIAL SECURITY
ACT (26 U.S.C. SECS. 1600-11) TAXES EMPLOYERS OF EIGHT OR MORE
EMPLOYEES BUT PROVIDES FOR A 90% CREDIT AGAINST THIS FEDERAL TAX FOR
PAYMENTS MADE INTO A STATE UNEMPLOYMENT FUND APPROVED BY THE FEDERAL
GOVERNMENT.  26 U.S.C. SEC. 1607 EXEMPTS FROM THIS FEDERAL TAX CERTAIN
TYPES OF EMPLOYERS OF PERSONS INCLUDING THOSE EMPLOYED "AS AN OFFICER
OR MEMBER OF THE CREW OF A VESSEL ON THE NAVIGABLE WATERS OF THE UNITED
STATES."  WE DO NOT BELIEVE THAT THE EXEMPTION OF THESE EMPLOYERS FROM
THE FEDERAL ACT CAN OPERATE TO EXEMPT THEM FROM STATE UNEMPLOYMENT
INSURANCE TAXES.  THE FEDERAL ACT, FROM THE NATURE OF ITS NINETY PER
CENT CREDIT DEVICE, IS OBVIOUSLY AN INVITATION TO THE STATES TO ENTER
THE FIELD OF UNEMPLOYMENT INSURANCE, BUCKSTAFF BATH HOUSE CO. V.
MCKINLEY, 308 U.S. 358, 363, BUT THE ABSENCE OF AN INVITATION AS TO
EMPLOYERS OF MARITIME WORKERS IS NOT TO BE CONSTRUED AS A BARRIER TO
STATE ACTION.  THESE EMPLOYERS APPEAR TO HAVE BEEN EXEMPTED FROM THE
FEDERAL ACT BECAUSE OF CERTAIN ADMINISTRATIVE DIFFICULTIES INVOLVED IN
THEIR COVERAGE, AND BECAUSE OF SOME DOUBT THAT STATES COULD, UNDER THE
JENSEN LINE OF CASES, CONSTITUTIONALLY ENTER THIS FIELD; FN8  BUT WE
ARE POINTED TO NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT WHICH
INDICATES THAT CONGRESS MEANT TO FORBID A STATE FROM RISKING THE
POSSIBLE CONSTITUTIONAL BARRIERS TO STATE COVERAGE, AND UNDERTAKING THE
DIFFICULT ADMINISTRATIVE TASK THE LEGISLATIVE HISTORY OF OTHER
EXEMPTIONS MAY INDICATE THAT THEY WERE INTENDED TO OUST THE STATES OF
JURISDICTION - ON THIS QUESTION WE NEED EXPRESS NO OPINION NOW; BUT
CURRENT ADMINISTRATIVE PRACTICE UNDER THE ACT INDICATES THAT THERE IS
NOTHING IN THE MERE EXISTENCE OF A FEDERAL EXEMPTION WHICH NECESSARILY
REQUIRED THAT STATES NOT UNDERTAKE TO EXPAND THE SOCIAL SECURITY
PROGRAM IN THIS FIELD.  THE FEDERAL ACT COVERS ONLY EMPLOYERS OF EIGHT
OR MORE PERSONS; APPROXIMATELY ONE-HALF THE STATES COVER EMPLOYERS WITH
FEWER EMPLOYEES.  SEVERAL STATES COVER CASUAL LABORERS AND DOMESTIC
SERVANTS, BOTH GROUPS EXEMPTED BY THE SECTION OF THE FEDERAL ACT WHICH
INCLUDES THE EXEMPTION OF MARITIME WORKERS. 

EMPLOYERS OF MARTIME WORKERS, OTHERWISE SUBJECT TO STATE UNEMPLOYMENT
INSURANCE TAXING ACTS, ARE NOT EXCLUDED FROM THE COVERAGE OF SUCH ACTS
EITHER BY ARTICLE 3 SEC. 2 OF THE CONSTITUTION, OR BY CONGRESSIONAL
ENACTMENTS.  AFFIRMED. 

FN1  FOR A DESCRIPTION OF THE NEW YORK ACT, SEE CHAMBERLAIN, INC. V.
ANDREWS, 271 N.Y. 1, 2 N.E.2D 22; 299 U.S. 515. 

FN2  289 N.Y. 119, 44 N.E.2D 391. 

FN3  THE EMPLOYEES HERE, BECAUSE OF THE NATURE OF THEIR WORK, ARE
ARGUABLY NOT WITHIN THE SCOPE OF THAT PORTION OF ADMIRALTY JURISDICTION
WHICH HAS BEEN SAID TO BE NECESSARILY EXCLUSIVE.  CF. DAVIS V.
DEPARTMENT OF LABOR, 317 U.S. 249.  ON THE OTHER HAND, CERTAIN
DECISIONS OF THE BUREAU OF INTERNAL REVENUE MIGHT PROVIDE THE BASIS FOR
CONTENTION THAT THESE EMPLOYEES ARE "MEMBERS OF A CREW" WITHIN THE
MEANING OF THE FEDERAL ACT.  AS TO WHETHER A DREDGE IS A VESSEL, SEE
S.S.T. 78, C.B. 1937-1, 408; AS TO WHETHER A FLOATING GRAIN ELEVATOR IS
A VESSEL AND WHETHER A GRAIN PROCESSOR IS A MEMBER OF A CREW, SEE
S.S.T. 204, C.B. 1937-2, 427; S.S.T. 210, C.B. 1937-2, 429. 

FN4  COUNSEL REFERS US TO GIBBONS V. OGDEN, 9 WHEAT.  1; HALL V.
DECUIR, 95 U.S. 485; MORAN V. NEW ORLEANS, 112 U.S. 69; HELSON V.
KENTUCKY, 279 U.S. 245; SOUTHERN PACIFIC CO. V. GALLAGHER, 306 U.S.
167. 

FN5  JUST V. CHAMBERS, 312 U.S. 383; DAVIS V. DEPARTMENT  OF LABOR,
SUPRA, AND, FOR AN ACCOUNT OF THE DEVELOPMENT OF THE JENSEN DOCTRINE,
252, 253. 

FN6  CF. 46 U.S.C. SEC. 688(THE JONES ACT, DEALING WITH RECOVERY FOR
INJURIES BY SEAMEN); 33 U.S.C. SECS. 901-950(THE LONGSHOREMEN'S AND
HARBORWORKERS' ACT DEALING WITH RECOVERY FOR INJURIES BY LONGSHOREMEN
AND HARBORWORKERS). 

FN7  SOUTHERN PACIFIC CO. V. KENTUCKY, 222 U.S. 63; OLD DOMINION
STEAMSHIP CO. V. VIRGINIA, 198 U.S. 299. 

FN8  THE PROVISION EXEMPTING OFFICERS AND MEMBERS OF CREWS FROM THE
FEDERAL UNEMPLOYMENT INSURANCE TAX ARE SIMILAR TO THOSE IN TITLES II
AND VIII OF THE SOCIAL SECURITY ACT, DEALING WITH THE OLD AGE
RETIREMENT PENSIONS.  CF. 53 STAT. 1384, REPEALING THE EXEMPTION AS TO
CERTAIN MARITIME WORKERS FOR OLD AGE RETIREMENT PURPOSES.  THE REPORT
OF THE WAYS AND MEANS COMMITTEE OF THE HOUSE OF REPRESENTATIVES ON THE
ORIGINAL ACT INDICATES THAT THE EXCEPTION WAS BASED ON THE ANTICIPATION
OF ADMINISTRATIVE DIFFICULTIES.  HOUSE REPORT 615, 74TH CONG., 1ST
SESS., 33.  THERE WAS ALSO SOME FEAR OF POSSIBLE CONSTITUTIONAL
OBJECTION TO STATE COVERAGE OF MARITIME EMPLOYEES.  SEE STATEMENTS OF
REP. VINSON AND REP. MCCORMACK, 79 CONG. REC. 5903. 
..END :











ADAMS V. UNITED STATES, 319 U.S. 312 


NO. 889.  ARGUED MAY 10, 1943.  - DECIDED MAY 24, 1943. 


1.  UNDER THE ACT OF OCTOBER 9, 1940, THE GOVERNMENT OF THE UNITED
STATES ACQUIRED NO JURISDICTION TO PROSECUTE AND PUNISH FOR RAPE
COMMITTED ON LAND ACQUIRED BY THE UNITED STATES WITHIN A STATE AFTER
THE DATE OF THE ACT, WHERE JURISDICTION "EXCLUSIVE OR PARTIAL" OVER THE
AREA HAS NOT BEEN ACCEPTED BY THE UNITED STATES IN THE MANNER WHICH THE
ACT PRESCRIBES.  P. 313.  2.  THE TERM "PARTIAL JURISDICTION" AS USED
IN THE ACT INCLUDES CONCURRENT JURISDICTION.  P. 314. 

ADAMS ET AL. V. UNITED STATES ET AL. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

RESPONSE TO QUESTIONS SUBMITTED BY THE CIRCUIT COURT OF APPEALS WITH
RESPECT TO AN APPEAL FROM A SENTENCE IMPOSED BY THE DISTRICT COURT IN A
PROSECUTION FOR RAPE AT A MILITARY CAMP. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS CERTIFIED TO
US TWO QUESTIONS OF LAW PURSUANT TO SEC. 239 OF THE JUDICIAL CODE.  THE
CERTIFICATE SHOWS THAT THE THREE DEFENDANTS WERE SOLDIERS AND WERE
CONVICETED UNDER 18 U.S.C. SECS. 451, 457, IN THE FEDERAL DISTRICT
COURT FOR THE WESTERN DISTRICT OF LOUISIANA, FOR THE RAPE OF A CIVILIAN
WOMAN.  THE ALLEGED OFFENSE OCCURRED WITHIN THE CONFINES OF CAMP
CLAIBORNE, LOUISIANA, A GOVERNMENT MILITARY CAMP, ON LAND TO WHICH THE
GOVERNMENT HAD ACQUIRED TITLE AT THE TIME OF THE CRIME.  THE ULTIMATE
QUESTION IS WHETHER THE CAMP WAS, AT THE TIME OF THE CRIME, WITHIN THE
FEDERAL CRIMINAL JURISDICTION. 

THE ACT OF OCTOBER 9, 1940, 40 U.S.C. SEC. 255, PASSED PRIOR TO THE
ACQUISITION OF THE LAND ON WHICH CAMP CLAIBORNE IS LOCATED, PROVIDES
THAT UNITED STATES AGENCIES AND AUTHORITIES MAY ACCEPT EXCLUSIVE OR
PARTIAL JURISDICTION OVER LANDS ACQUIRED BY THE UNITED STATES BY FILING
A NOTICE WITH THE GOVERNOR OF THE STATE IN WHICH THE LAND IS LOCATED OR
BY TAKING OTHER SIMILAR APPROPRIATE ACTION.  THE ACT PROVIDES FURTHER:
"UNLESS AND UNTIL THE UNITED STATES HAS ACCEPTED JURISDICTION OVER
LANDS HEREAFTER TO BE ACQUIRED AS AFORESAID, IT SHALL BE CONCLUSIVELY
PRESUMED THAT NO SUCH JURISDICTION HAS BEEN ACCEPTED."  THE GOVERNMENT
HAD NOT GIVEN NOTICE OF ACCEPTANCE OF JURISDICTION AT THE TIME OF THE
ALLEGED OFFENSE.  FN1 

THE QUESTIONS CERTIFIED ARE AS FOLLOWS: 

"1.  IS THE EFFECT OF THE ACT OF OCT. 9, 1940, ABOVE QUOTED, TO
PROVIDE THAT, AS TO LANDS WITHIN A STATE THEREAFTER ACQUIRED BY THE
UNITED STATES, NO JURISDICTION EXISTS IN THE UNITED STATES TO ENFORCE
THE CRIMINAL LAWS EMBRACED IN U.S.C. TITLE 18, CHAPTER 11, AND
ESPECIALLY SECTION 457 RELATING TO RAPE, BY VIRTUE OF SECTION 451,
THIRD, AS AMENDED JUNE 11, 1940, UNLESS AND UNTIL A CONSENT TO ACCEPT
JURISDICTION OVER SUCH LANDS IS FILED IN BEHALF OF THE UNITED STATES AS
PROVIDED IN SAID ACT? 

"2.  HAD THE DISTRICT COURT OF THE WESTERN DISTRICT OF LOUISIANA
JURISDICTION, ON THE FACTS ABOVE SET OUT, TO TRY AND SENTENCE THE
APPELLANTS FOR THE OFFENSE OF RAPE COMMITTED WITHIN THE BOUNDS OF CAMP
CLAIBORNE ON MAY 10, 1942?" 

SINCE THE GOVERNMENT HAD NOT GIVEN THE NOTICE REQUIRED BY THE 1940
ACT, IT CLEARLY DID NOT HAVE EITHER "EXCLUSIVE OR PARTIAL" JURISDICTION
OVER THE CAMP AREA.  THE ONLY POSSIBLE REASON SUGGESTED AS TO WHY THE
1940 ACT IS INAPPLICABLE IS THAT IT DOES NOT REQUIRE THE GOVERNMENT TO
GIVE NOTICE OF ACCEPTANCE OF "CONCURRENT JURISDICTION."  THIS
SUGGESTION RESTS ON THE ASSUMPTION THAT THE TERM "PARTIAL JURISDICTION"
AS USED IN THE ACT DOES NOT INCLUDE "CONCURRENT JURISDICTION." 

THE LEGISLATION FOLLOWED OUR DECISIONS IN JAMES V. DRAVO CONTRACTING
CO., 302 U.S. 134; MASON CO. V. TAX COMMISSION, 302 U.S. 186; AND
COLLINS V. YOSEMITE PARK CO., 304 U.S. 518.  THESE CASES AROSE FROM
CONTROVERSIES CONCERNING THE RELATION OF FEDERAL AND STATE POWERS OVER
GOVERNMENT PROPERTY AND HAD POINTED THE WAY TO PRACTICAL ADJUSTMENTS. 
THE BILL RESULTED FROM A COOPERATIVE STUDY BY GOVERNMENT OFFICIALS, AND
WAS AIMED AT GIVING BROAD DISCRETION TO THE VARIOUS AGENCIES IN ORDER
THAT THEY MIGHT OBTAIN ONLY THE NECESSARY JURISDICTION.  FN2  THE ACT
CREATED A DEFINITE METHOD OF ACCEPTANCE OF JURISDICTION SO THAT ALL
PERSONS COULD KNOW WHETHER THE GOVERNMENT HAD OBTAINED "NO JURISDICTION
AT ALL, OR PARTIAL JURISDICTION, OR EXCLUSIVE JURISDICTION."  FN3 

BOTH THE JUDGE ADVOCATE GENERAL OF THE ARMY  FN4  AND THE SOLICITOR
OF THE DEPARTMENT OF AGRICULTURE  FN5  HAVE CONSTRUED THE 1940 ACT AS
REQUIRING THAT NOTICE OF ACCEPTANCE BE FILED IF THE GOVERNMENT IS TO
OBTAIN CONCURRENT JURISDICTION.  THE DEPARTMENT OF JUSTICE HAS
ABANDONED THE VIEW OF JURISDICTION WHICH PROMPTED THE INSTITUTION OF
THIS PROCEEDING, AND NOW ADVISES US OF ITS VIEW THAT CONCURRENT
JURISDICTION CAN BE ACQUIRED ONLY BY THE FORMAL ACCEPTANCE PRESCRIBED
IN THE ACT.  THESE AGENCIES COOPERATED IN DEVELOPING THE ACT, AND THEIR
VIEWS ARE ENTITLED TO GREAT WEIGHT IN ITS INTERPRETATION.  CF. BOWEN V.
JOHNSTON, 306 U.S. 19, 29-30.  BESIDES, WE CAN THINK OF NO OTHER
RATIONAL MEANING FOR THE PHRASE "JURISDICTION, EXCLUSIVE OR PARTIAL"
THAN THAT WHICH THE ADMINISTRATIVE CONSTRUCTION GIVES IT. 

SINCE THE GOVERNMENT HAD NOT ACCEPTED JURISDICTION IN THE MANNER
REQUIRED BY THE ACT, THE FEDERAL COURT HAD NO JURISDICTION OF THIS
PROCEEDING.  IN THIS VIEW IT IS IMMATERIAL THAT LOUISIANA STATUTES
AUTHORIZED THE GOVERNMENT TO TAKE JURISDICTION, SINCE AT THE CRITICAL
TIME THE JURISDICTION HAD NOT BEEN TAKEN.  FN6 

OUR ANSWER TO CERTIFIED QUESTION NO. 1 IS YES AND TO QUESTION NO. 2
IS NO. IT IS SO ORDERED. 

FN1  EXCLUSIVE JURISDICTION OVER THE LANDS ON WHICH THE CAMP IS
LOCATED WAS ACCEPTED FOR THE FEDERAL GOVERNMENT BY THE SECRETARY OF WAR
IN A LETTER TO THE GOVERNOR OF LOUISIANA, EFFECTIVE JANUARY 15, 1943. 

FN2  IN THE WORDS OF A SPONSOR OF THE BILL, THE OBJECT OF THE ACT WAS
FLEXIBILITY, SO "THAT THE HEAD OF THE ACQUIRING AGENCY OR DEPARTMENT OF
THE GOVERNMENT COULD AT ANY TIME DESIGNATE WHAT TYPE OF JURISDICTION IS
NECESSARY; THAT IS, EITHER EXCLUSIVE OR PARTIAL.  IN OTHER WORDS, IT
DEFINITELY CONTEMPLATES LEAVING THE QUESTION OF EXTENT OF JURISDICTION
NECESSARY TO THE HEAD OF THE LAND-ACQUIRING AGENCY."  HEARINGS, HOUSE
COMMITTEE ON BUILDINGS AND GROUNDS, H.R. 7293, 76TH CONG., 1ST SESS.,
P. 5. 

FN3  IBID., 7. 

FN4  OPS.  J.A.G. 680.2. 

FN5  OPINION NO. 4311, SOLICITOR, DEPARTMENT OF AGRICULTURE. 

FN6  DART'S LOUISIANA STAT. (SUPP.) 2898.  IN VIEW OF THE GENERAL
APPLICABILITY OF THE 1940 ACT, IT IS UNNECESSARY TO CONSIDER THE EFFECT
OF THE WEEKS FORESTRY ACT, 16 U.S.C. 480, AND THE LOUISIANA STATUTE
DEALING WITH JURISDICTION IN NATIONAL FORESTS, DART'S LOUISIANA STAT.
3329, EVEN THOUGH THE LAND INVOLVED HERE WAS ORIGINALLY ACQUIRED FOR
FORESTRY PURPOSES. 
..END :











BURFORD V. SUN OIL CO., 319 U.S. 315 


NO. 495.  ARGUED FEBRUARY 8, 9, 1943.  REARGUED APRIL 14, 15, 1943.  -
DECIDED MAY 24, 1943.  - 130 F.2D 10, REVERSED - DISTRICT COURT
AFFIRMED. 


1.  JURISDICTION BY APPEAL FROM A STATE ADMINISTRATIVE BODY CAN NOT BE
CONFERRED ON THE FEDERAL DISTRICT COURT BY A STATE STATUTE.  P. 317. 

2.  A FEDERAL COURT HAVING JURISDICTION, WHETHER BY DIVERSITY OF
CITIZENSHIP OR BY FEDERAL QUESTION, OF A SUIT TO ENJOIN ENFORCEMENT OF
AN ADMINISTRATIVE ORDER OF A STATE COMMISSION, MAY, IN ITS SOUND
DISCRETION, REFUSE SUCH RELIEF IF TO GRANT IT WOULD BE PREJUDICIAL TO
THE PUBLIC INTEREST.  P. 317. 

3.  IT IS IN THE PUBLIC INTEREST THAT FEDERAL COURTS OF EQUITY SHOULD
EXERCISE THEIR DISCRETIONARY POWER WITH PROPER REGARD FOR THE
INDEPENDENCE OF STATE GOVERNMENTS IN CARRYING OUT THEIR POLICIES.  P.
318. 

4.  IN THE EXERCISE OF A SOUND DISCRETION, THIS SUIT TO ENJOIN THE
EXECUTION OF AN ORDER OF THE STATE RAILROAD COMMISSION OF TEXAS,
PERMITTING THE DRILLING OF WELLS IN THE EAST TEXAS OIL FIELD SEPARATED
BY DISTANCES LESS THAN THE MINIMUM PRESCRIBED FOR THE FIELD IN GENERAL,
SHOULD HAVE BEEN DISMISSED.  PP. 318-332.  E CONCURS IN THE OPINION OF
MR. JUSTICE FRANKFURTER. 

BURFORD ET AL. V. SUN OIL CO. ET AL.* 

*TOGETHER WITH NO. 496, SUN OIL CO. ET AL. V. BURFORD ET AL., ALSO ON
WRIT OF CERTIORARI, 317 U.S. 623, TO THE CIRCUIT COURT OF APPEALS FOR
THE FIFTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 317 U.S. 621, TO REVIEW A JUDGMENT REVERSING A JUDGMENT
OF THE DISTRICT COURT WHICH DISMISSED THE COMPLAINT OF THE SUN OIL
COMPANY IN A SUIT AGAINST THE RAILROAD COMMISSION OF TEXAS ET AL., TO
ENJOIN THE EXECUTION OF AN ORDER OF THE COMMISSION PERMITTING THE
DRILLING AND OPERATION OF CERTAIN OIL WELLS IN THE EAST TEXAS OIL
FIELD, AND ALSO DISMISSING THE COMPLAINT OF THE MAGNOLIA PETROLEUM
COMPANY, INTERVENER.  THE JUDGMENT OF THE DISTRICT COURT HAD AT FIRST
BEEN AFFIRMED, 124 F.2D 467. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THIS PROCEEDING BROUGHT IN A FEDERAL DISTRICT COURT, THE SUN OIL
CO. ATTACKED THE VALIDITY OF AN ORDER OF THE TEXAS RAILROAD COMMISSION
GRANTING THE PETITIONER BURFORD A PERMIT TO DRILL FOUR WELLS ON A SMALL
PLOT OF LAND IN THE EAST TEXAS OIL FIELD.  FN1  JURISDICTION OF THE
FEDERAL COURT WAS INVOKED BECAUSE OF THE DIVERSITY OF CITIZENSHIP OF
THE PARTIES, AND BECAUSE OF THE COMPANIES' CONTENTION THAT THE ORDER
DENIED THEM DUE PROCESS OF LAW.  THERE IS SOME ARGUMENT THAT THE ACTION
IS AN "APPEAL" FROM THE STATE COMMISSION TO THE FEDERAL COURT, SINCE AN
APPEAL TO A STATE COURT CAN BE TAKEN UNDER RELEVANT TEXAS STATUTES; FN2
BUT OF COURSE THE TEXAS LEGISLATURE MAY NOT MAKE A FEDERAL DISTRICT
COURT, A COURT OF ORIGINAL JURISDICTION, INTO AN APPELLATE TRIBUNAL OR
OTHERWISE EXPAND ITS JURISDICTION,  FN3  AND THE CIRCUIT COURT OF
APPEALS IN ITS DECISION CORRECTLY VIEWED THIS AS A SIMPLE PROCEEDING IN
EQUITY TO ENJOIN THE ENFORCEMENT OF THE COMMISSION'S ORDER. 

ALTHOUGH A FEDERAL EQUITY COURT DOES HAVE JURISDICTION OF A
PARTICULAR PROCEEDING, IT MAY, IN ITS SOUND DISCRETION, WHETHER ITS
JURISDICTION IS INVOKED ON THE GROUND OF DIVERSITY OF CITIZENSHIP OR
OTHERWISE, "REFUSE TO ENFORCE OR PROTECT LEGAL RIGHTS, THE EXERCISE OF
WHICH MAY BE PREJUDICIAL TO THE PUBLIC INTEREST"; FN4  FOR IT "IS IN
THE PUBLIC INTEREST THAT FEDERAL COURTS OF EQUITY SHOULD EXERCISE THEIR
DISCRETIONARY POWER WITH PROPER REGARD FOR THE RIGHTFUL INDEPENDENCE OF
STATE GOVERNMENTS IN CARRYING OUT THEIR DOMESTIC POLICY."  FN5  WHILE
MANY OTHER QUESTIONS ARE ARGUED, WE FIND IT NECESSARY TO DECIDE ONLY
ONE:  ASSUMING THAT THE FEDERAL DISTRICT COURT HAD JURISDICTION, SHOULD
IT, AS A MATTER OF SOUND EQUITABLE DISCRETION, HAVE DECLINED TO
EXERCISE THAT JURISDICTION HERE? 

THE ORDER UNDER CONSIDERATION IS PART OF THE GENERAL REGULATORY
SYSTEM DEVISED FOR THE CONSERVATION OF OIL AND GAS IN TEXAS, AN ASPECT
OF "AS THORNY A PROBLEM AS HAS CHALLENGED THE INGENUITY AND WISDOM OF
LEGISLATURES."  RAILROAD COMMISSION V. ROWAN & NICHOLS OIL CO., 310
U.S. 573, 579.  THE EAST TEXAS FIELD, IN WHICH THE BURFORD TRACT IS
LOCATED, IS ONE OF THE LARGEST IN THE UNITED STATES.  IT IS
APPROXIMATELY FORTY MILES LONG AND BETWEEN FIVE AND NINE MILES WIDE,
AND OVER 26,000 WELLS HAVE BEEN DRILLED IN IT.  FN6  OIL EXISTS IN THE
PORES AND CREVICES OF ROCKS AND SAND AND MOVES THROUGH THESE CHANNELS. 
A LARGE AREA OF THIS SORT IS CALLED A POOL OR RESERVOIR AND THE EAST
TEXAS FIELD IS A GIANT POOL.  THE CHIEF FORCES CAUSING OIL TO MOVE ARE
GAS AND WATER, AND IT IS ESSENTIAL THAT THE PRESSURES BE MAINTAINED AT
A LEVEL WHICH WILL FORCE THE OIL THROUGH WELLS TO THE SURFACE.  AS THE
GAS PRESSURE IS DISSIPATED, IT BECOMES NECESSARY TO PUT THE WELL "ON
THE PUMP" AT GREAT EXPENSE; FN7  AND THE SOONER THE GAS FROM A FIELD IS
EXHAUSTED, THE MORE OIL IS IRRETRIEVABLY LOST.  SINCE THE OIL MOVES
THROUGH THE ENTIRE FIELD, ONE OPERATOR CAN NOT ONLY DRAW THE OIL FROM
UNDER HIS OWN SURFACE AREA, BUT CAN ALSO, IF HE IS ADVANTAGEOUSLY
LOCATED, DRAIN OIL FROM THE MOST DISTANT PARTS OF THE RESERVOIR.  THE
PRACTICE OF ATTEMPTING TO DRAIN OIL FROM UNDER THE SURFACE HOLDINGS OF
OTHERS LEADS TO OFFSET WELLS AND OTHER WASTEFUL PRACTICES; AND THIS
PROBLEM IS INCREASED BY THE FACT THAT THE SURFACE RIGHTS ARE SPLIT UP
INTO MANY SMALL TRACTS.  FN8  THERE ARE APPROXIMATELY NINE HUNDRED
OPERATORS IN THE EAST TEXAS FIELD ALONE. 

FOR THESE AND MANY OTHER REASONS BASED ON GEOLOGIC REALITIES, EACH
OIL AND GAS FIELD MUST BE REGULATED AS A UNIT FOR CONSERVATION
PURPOSES.  COMPARE RAILROAD COMMISSION V. ROWAN & NICHOLS CO., 311 U.S.
570, 574.  THE FEDERAL GOVERNMENT, FOR THE PRESENT AT LEAST, HAS CHOSEN
TO LEAVE THE PRINCIPAL REGULATORY RESPONSIBILITY WITH THE STATES, BUT
DOES SUPPLEMENT STATE CONTROL.  FN9 WHILE THERE IS NO QUESTION OF THE
CONSTITUTIONAL POWER OF THE STATE TO TAKE APPROPRIATE ACTION TO PROTECT
THE INDUSTRY AND PROTECT THE PUBLIC INTEREST, OHIO OIL CO. V. INDIANA,
177 U.S. 190; CHAMPLIN REFINING CO. V. COMMISSION, 286 U.S. 210, THE
STATE'S ATTEMPTS TO CONTROL THE FLOW OF OIL AND AT THE SAME TIME
PROTECT THE INTEREST OF THE MANY OPERATORS HAVE FROM TIME TO TIME BEEN
ENTANGLED IN GEOLOGICAL-LEGAL PROBLEMS OF NOVEL NATURE. 

TEXAS' INTERESTS IN THIS MATTER ARE MORE THAN THAT VERY LARGE ONE OF
CONSERVING GAS AND OIL, TWO OF OUR MOST IMPORTANT NATURAL RESOURCES. 
IT MUST ALSO WEIGH THE IMPACT OF THE INDUSTRY ON THE WHOLE ECONOMY OF
THE STATE AND MUST CONSIDER ITS REVENUE, MUCH OF WHICH IS DRAWN FROM
TAXES ON THE INDUSTRY AND FROM MINERAL LANDS PRESERVED FOR THE BENEFIT
OF ITS EDUCATIONAL AND ELEEMOSYNARY INSTITUTIONS.  FN10  TO PREVENT
"PAST, PRESENT, AND IMMINENT EVILS" IN THE PRODUCTION OF NATURAL GAS, A
STATUTE WAS ENACTED "FOR THE PROTECTION OF PUBLIC AND PRIVATE INTERESTS
AGAINST SUCH EVILS BY PROHIBITING WASTE AND COMPELLING RATABLE
PRODUCTION."  THE PRIMARY TASK OF ATTEMPTING ADJUSTMENT OF THESE
DIVERSE INTERESTS IS DELEGATED TO THE RAILROAD COMMISSION, WHICH TEXAS
HAS VESTED WITH "BROAD DISCRETION" IN ADMINISTERING THE LAW.  FN11 

THE COMMISSION, IN COOPERATION WITH OTHER OIL PRODUCING STATES, HAS
ACCEPTED STATE OIL PRODUCTION QUOTAS AND HAS UNDERTAKEN TO TRANSLATE
THE AMOUNT TO BE PRODUCED FOR THE STATE AS A WHOLE INTO A SPECIFIC
AMOUNT FOR EACH FIELD AND FOR EACH WELL.  FN12  THESE JUDGMENTS ARE
MADE WITH DUE REGARD FOR THE FACTORS OF FULL UTILIZATION OF THE OIL
SUPPLY, MARKET DEMAND, AND PROTECTION OF THE INDIVIDUAL OPERATORS, AS
WELL AS PROTECTION OF THE PUBLIC INTEREST.  AS AN ESSENTIAL ASPECT OF
THE CONTROL PROGRAM, THE STATE ALSO REGULATES THE SPACING OF WELLS. 
THE LEGISLATURE HAS DISAVOWED A PURPOSE OF REQUIRING THAT "THE
SEPARATELY OWNED PROPERTIES IN ANY POOL (SHOULD) BE UNITIZED UNDER ONE
MANAGEMENT, CONTROL OR OWNERSHIP"  FN13  AND THE COMMISSION MUST THUS
WORK OUT THE DIFFICULT SPACING PROBLEM WITH DUE REGARD FOR WHATEVER
RIGHTS TEXAS RECOGNIZES IN THE SEPARATE OWNERS TO A SHARE OF THE COMMON
RESERVOIR.  AT THE SAME TIME IT MUST RESTRAIN WASTE, WHETHER BY
EXCESSIVE PRODUCTION OR BY THE UNWISE DISSIPATION OF THE GAS AND OTHER
GEOLOGIC FACTORS THAT CAUSE THE OIL TO FLOW. 

SINCE 1919 THE COMMISSION HAS ATTEMPTED TO SOLVE THIS PROBLEM BY ITS
RULE 37.  THE RULE PROVIDES FOR CERTAIN MINIMUM SPACING BETWEEN WELLS,
BUT ALSO ALLOWS EXCEPTIONS WHERE NECESSARY "TO PREVENT WASTE OR TO
PREVENT THE CONFISCATION OF PROPERTY."  THE PREVENTION OF CONFISCATION
IS BASED ON THE PREMISES THAT, INSOFAR AS THESE PRIVILEGES ARE
COMPATIBLE WITH THE PREVENTION OF WASTE AND THE ACHIEVEMENT OF
CONSERVATION, EACH SURFACE OWNER SHOULD BE PERMITTED TO WITHDRAW THE
OIL UNDER HIS SURFACE AREA, AND THAT NO ONE ELSE CAN FAIRLY BE
PERMITTED TO DRAIN HIS OIL AWAY.  HENCE THE COMMISSION MAY PROTECT HIS
INTEREST EITHER BY ADJUSTING HIS AMOUNT OF PRODUCTION UPWARD, OR BY
PERMITTING HIM TO DRILL ADDITIONAL WELLS.  "BY THIS METHOD EACH PERSON
WILL BE ENTITLED TO RECOVER A QUANTITY OF OIL AND GAS SUBSTANTIALLY
EQUIVALENT IN AMOUNT TO THE RECOVERABLE OIL AND GAS UNDER HIS LAND." 
FN14 

ADDITIONAL WELLS MAY BE REQUIRED TO PREVENT WASTE AS HAS BEEN
NOTICED, WHERE GEOLOGIC CIRCUMSTANCES REQUIRE IMMEDIATE DRILLING:  "THE
TERM 'WASTE,' AS USED IN OIL AND GAS RULE 37, UNDOUBTEDLY MEANS THE
ULTIMATE LOSS OF OIL.  IF A SUBSTANTIAL AMOUNT OF OIL WILL BE SAVED BY
THE DRILLING OF A WELL THAT OTHERWISE WOULD ULTIMATELY BE LOST, THE
PERMIT TO DRILL SUCH WELL MAY BE JUSTIFIED UNDER ONE OF THE EXCEPTIONS
PROVIDED IN RULE 37 TO PREVENT WASTE."  GULF LAND CO. V. ATLANTIC
REFINING CO., 134 TEX. 59, 70, 131 S.W.2D 73. 

THE DELUSIVE SIMPLICITY WITH WHICH THESE PRINCIPLES OF EXCEPTION TO
RULE 37 CAN BE STATED SHOULD NOT OBSCURE THE ACTUAL NON-LEGAL
COMPLEXITIES INVOLVED IN THEIR APPLICATION.  FN15  WHILE THE SURFACE
HOLDER MAY, SUBJECT TO QUALIFICATIONS NOTED, BE ENTITLED UNDER CURRENT
TEXAS LAW TO THE OIL UNDER HIS LAND, THERE CAN BE NO ABSOLUTE CERTAINTY
AS TO HOW MUCH OIL ACTUALLY IS PRESENT, RAILROAD COMMISSION V. ROWAN &
NICHOLS CO., 311 U.S. 570, 576, AND SINCE THE WASTE AND CONFISCATION
PROBLEMS ARE AS A MATTER OF PHYSICAL NECESSITY SO CLOSELY INTERRELATED,
DECISION OF ONE OF THE QUESTIONS NECESSARILY INVOLVES RECOGNITION OF
THE OTHER.  FN16  THE SHEER QUANTITY OF EXCEPTION CASES MAKES THEIR
DISPOSITION OF GREAT PUBLIC IMPORTANCE.  IT IS ESTIMATED THAT OVER TWO
THIRDS OF THE WELLS IN THE EAST TEXAS FIELD EXIST AS EXCEPTIONS TO THE
RULE, AND SINCE EACH EXCEPTION MAY PROVOKE A CONFLICT AMONG THE
INTERESTED PARTIES, THE VOLUME OF LITIGATION ARISING FROM THE
ADMINISTRATION OF THE RULE IS CONSIDERABLE.  FN17  THE INSTANT CASE
ARISES FROM JUST SUCH AN EXCEPTION.  IT IS NOT PECULIAR THAT THE STATE
SHOULD BE REPRESENTED HERE BY ITS ATTORNEY GENERAL, FOR CASES LIKE
THIS, INVOLVING "CONFISCATION," ARE NOT MERE ISOLATED DISPUTES BETWEEN
PRIVATE PARTIES.  ASIDE FROM THE GENERAL PRINCIPLES WHICH MAY EVOLVE
FROM THESE PROCEEDINGS, THE PHYSICAL FACTS ARE SUCH THAT AN ADDITIONAL
PERMIT MAY AFFECT PRESSURE ON A WELL MILES AWAY.  THE STANDARDS APPLIED
BY THE COMMISSION IN A GIVEN CASE NECESSARILY AFFECT THE ENTIRE STATE
CONSERVATION SYSTEM.  OF FAR MORE IMPORTANCE THAN ANY OTHER PRIVATE
INTEREST IS THE FACT THAT THE OVER-ALL PLAN OF REGULATION, AS WELL AS
EACH OF ITS CASE BY CASE MANIFESTATIONS, IS OF VITAL INTEREST TO THE
GENERAL PUBLIC WHICH MUST BE ASSURED THAT THE SPECULATIVE INTERESTS OF
INDIVIDUAL TRACT OWNERS WILL BE PUT ASIDE WHEN NECESSARY TO PREVENT THE
IRRETRIEVABLE LOSS OF OIL IN OTHER PARTS OF THE FIELD.  THE COMMISSION
IN APPLYING THE STATUTORY STANDARDS OF COURSE CONSIDERS THE RULE 37
CASES AS A PART OF THE ENTIRE CONSERVATION PROGRAM WITH IMPLICATIONS TO
THE WHOLE ECONOMY OF THE STATE.  FN18 

WITH FULL KNOWLEDGE OF THE IMPORTANCE OF THE DECISIONS OF THE
RAILROAD COMMISSION BOTH TO THE STATE AND TO THE OIL OPERATORS, THE
TEXAS LEGISLATURE HAS ESTABLISHED A SYSTEM OF THOROUGH JUDICIAL REVIEW
BY ITS OWN STATE COURTS.  THE COMMISSION ORDERS MAY BE APPEALED TO A
STATE DISTRICT COURT IN TRAVIS COUNTY, AND ARE REVIEWED BY A BRANCH OF
THE COURT OF CIVIL APPEALS AND BY THE STATE SUPREME COURT.  FN19  WHILE
THE CONSTITUTIONAL POWER OF THE COMMISSION TO ENFORCE RULE 37 OR TO
MAKE EXCEPTIONS TO IT IS SELDOM SERIOUSLY CHALLENGED, BROWN V. HUMBLE
OIL CO., 126 TEX. 296, 307, 83 S.W.2D 935, 87 S.W.2D 1069, THE VALIDITY
OF PARTICULAR ORDERS FROM THE STANDPOINT OF STATUTORY INTERPRETATION
MAY PRESENT A SERIOUS PROBLEM, AND A SUBSTANTIAL NUMBER OF SUCH CASES
HAVE BEEN DISPOSED OF BY THE TEXAS COURTS WHICH ALONE HAVE THE POWER TO
GIVE DEFINITE ANSWERS TO THE QUESTIONS OF STATE LAW POSED IN THESE
PROCEEDINGS. 

IN DESCRIBING THE RELATION OF THE TEXAS COURT TO THE COMMISSION, NO
USEFUL PURPOSE WILL BE SERVED BY ATTEMPTING TO LABEL THE COURT'S
POSITION AS LEGISLATIVE, PRENTIS V. ATLANTIC COAST LINE, 211 U.S. 210;
KELLER V. POTOMAC ELECTRIC CO., 261 U.S. 428, OR JUDICIAL, BACON V.
RUTLAND R. CO., 232 U.S. 134 - SUFFICE IT TO SAY THAT THE TEXAS COURTS
ARE WORKING PARTNERS WITH THE RAILROAD COMMISSION IN THE BUSINESS OF
CREATING A REGULATORY SYSTEM FOR THE OIL INDUSTRY.  THE COMMISSION IS
CHARGED WITH PRINCIPAL RESPONSIBILITY FOR FACT FINDING AND FOR POLICY
MAKING AND THE COURTS EXPRESSLY DISCLAIM THE ADMINISTRATIVE
RESPONSIBILITY, GULF LAND CO. V. ATLANTIC REFINING CO., 134 TEX. 59,
131 S.W.2D 73, BUT ON THE OTHER HAND, THE ORDERS OF THE COMMISSION ARE
TESTED FOR "REASONABLENESS" BY TRIAL DE NOVO BEFORE THE COURT, RAILROAD
COMMISSION V. SHELL OIL CO., 139 TEX. 66, 76-80, 161 S.W.2D 1022, AND
THE COURT MAY ON OCCASION MAKE A CAREFUL ANALYSIS OF ALL THE FACTS OF
THE CASE IN REVERSING A COMMISSION ORDER.  RAILROAD COMMISSION V. GULF
PRODUCTION CO., 134 TEX. 122, 132 S.W.2D 254.  THE COURT HAS FULLY AS
MUCH POWER AS THE COMMISSION TO DETERMINE PARTICULAR CASES, SINCE AFTER
TRIAL DE NOVO IT CAN EITHER RESTRAIN THE LEASEHOLDER FROM PROCEEDING TO
DRILL, OR, IF THE CASE IS APPROPRIATE, CAN RESTRAIN THE COMMISSION FROM
INTERFERING WITH THE LEASEHOLDER.  THE COURT MAY EVEN FORMULATE NEW
STANDARDS FOR THE COMMISSION'S ADMINISTRATIVE PRACTICE AND SUGGEST THAT
THE COMMISSION ADOPT THEM.  THUS, IN THE SHELL OIL CASE, SUPRA, AT 73,
THE COURT TOOK THE RESPONSIBILITY OF "LAYING DOWN SOME STANDARD TO
GUIDE THE COMMISSION IN THE EXERCISE OF ITS DISCRETION" IN RULE 37
CASES; AND IN BROWN V. HUMBLE OIL CO., SUPRA, 312, THE COURT EXPLICITLY
SUGGESTED A REVISION IN RULE 37.    TO PREVENT THE CONFUSION OF
MULTIPLE REVIEW OF THE SAME GENERAL ISSUES, THE LEGISLATURE PROVIDED
FOR CONCENTRATION OF ALL DIRECT REVIEW OF THE COMMISSION'S ORDERS IN
THE STATE DISTRICT COURTS OF TRAVIS COUNTY.  THE TEXAS COURTS HAVE
AUTHORITATIVELY DECLARED THE PURPOSE OF THIS RESTRICTION: "IF AN ORDER
OF THE COMMISSION, LAWFUL ON ITS FACE, CAN BE COLLATERALLY ATTACKED IN
THE VARIOUS COURTS AND COUNTIES OF THE STATE ON GROUNDS SUCH AS THOSE
URGED IN THE INSTANT CASE, INTERMINABLE CONFUSION WOULD RESULT."  TEXAS
STEEL CO. V. FORT WORTH & D.C. RY. CO., 120 TEX. 597, 604, 40 S.W.2D
78.  TO PERMIT VARIOUS STATE COURTS TO PASS UPON THE COMMISSION'S RULES
AND ORDERS, "WOULD LEAD TO INTOLERABLE CONFUSION.  IF ALL DISTRICT
COURTS OF THIS STATE HAD JURISDICTION OF SUCH MATTERS, DIFFERENT COURTS
OF EQUAL DIGNITY MIGHT REACH DIFFERENT AND CONFLICTING CONCLUSIONS AS
TO THE SAME RULE.  MANIFESTLY, THE JURISDICTIONAL PROVISION UNDER
DISCUSSION WAS INCORPORATED IN THE ACT FOR THE EXPRESS PURPOSE OF
AVOIDING SUCH CONFUSION."  ALPHA PETROLEUM CO. V. TERRELL, 122 TEX.
257, 273, 59 S.W.2D 364, 372.  TIME AND EXPERIENCE, SAY THE TEXAS
COURTS, HAVE SHOWN THE WISDOM OF THIS RULE.  FN20  CONCENTRATION OF
JUDICIAL SUPERVISION OF RAILROAD COMMISSION ORDERS PERMITS THE STATE
COURTS, LIKE THE RAILROAD COMMISSION ITSELF, TO ACQUIRE A SPECIALIZED
KNOWLEDGE WHICH IS USEFUL IN SHAPING THE POLICY OF REGULATION OF THE
EVER-CHANGING DEMANDS IN THIS FIELD.  AT THE PRESENT TIME, LESS THAN
TEN PER CENT OF THESE CASES COME BEFORE THE FEDERAL DISTRICT COURT. 
FN21 

THE VERY "CONFUSION" WHICH THE TEXAS LEGISLATURE AND SUPREME COURT
FEARED MIGHT RESULT FROM REVIEW BY MANY STATE COURTS OF THE RAILROAD
COMMISSION'S ORDERS HAS RESULTED FROM THE EXERCISE OF FEDERAL EQUITY
JURISDICTION.  AS A PRACTICAL MATTER, THE FEDERAL COURTS CAN MAKE SMALL
CONTRIBUTION TO THE WELL ORGANIZED SYSTEM OF REGULATION AND REVIEW
WHICH THE TEXAS STATUTES PROVIDE.  TEXAS COURTS CAN GIVE FULLY AS GREAT
RELIEF, INCLUDING TEMPORARY RESTRAINING ORDERS, AS THE FEDERAL COURTS. 
DELAY, MISUNDERSTANDING OF LOCAL LAW, AND NEEDLESS FEDERAL CONFLICT
WITH THE STATE POLICY, ARE THE INEVITABLE PRODUCT OF THIS DOUBLE SYSTEM
OF REVIEW.  THE MOST STRIKING EXAMPLE OF MISUNDERSTANDING HAS COME
WHERE THE FEDERAL COURT HAS FLATLY DISAGREED WITH THE POSITION LATER
TAKEN BY A STATE COURT AS TO STATE LAW.  SEE MACMILLAN V. RAILROAD
COMMISSION, 51 F.2D 400, 287 U.S. 576, AND DANCIGER OIL & REFINING CO.
V. RAILROAD COMMISSION, 49 S.W.2D 837; 122 TEX. 243, 56 S.W.2D 1075. 
IN THOSE CASES, THE FEDERAL COURT ATTRIBUTED A GIVEN MEANING TO THE
STATE STATUTE WHICH WENT TO THE HEART OF THE CONTROL PROGRAM.  THE
COURT OF CIVIL APPEALS DISAGREED, BUT BEFORE ULTIMATE REVIEW COULD BE
HAD EITHER IN TEXAS OR HERE, THE LEGISLATURE AMENDED ITS STATUTES SO
THAT THE CASES BECAME MOOT.  HAD THE TEXAS CIVIL APPEALS DECISION COME
FIRST, IT WOULD HAVE BEEN UNNECESSARY TO MAKE THE CHANGES WHICH WERE
MADE IN AN EFFORT TO STAY WITHIN THE LIMIT THOUGHT BY THE GOVERNOR OF
TEXAS TO HAVE BEEN SET BY THE TONE OF THE FEDERAL COURT'S OPINION. 
FN22  THE TEXAS LEGISLATURE LATER CHANGED THE LAW BACK TO ITS ORIGINAL
STATE, AS CLEAR AN EXAMPLE OF WASTE MOTION AS CAN BE IMAGINED.  FN23
THE FEDERAL COURT HAS BEEN CALLED UPON CONSTANTLY TO DETERMINE WHETHER
THE RAILROAD COMMISSION HAS ACTED WITHIN THE SCOPE OF STATUTORY
AUTHORITY, WHILE THE IMPORTANT CONSTITUTIONAL ISSUES HAVE, AS THE
FEDERAL COURT HAS REPEATEDLY SAID, BEEN FAIRLY WELL SETTLED FROM THE
BEGINNING.  FN24 

THESE FEDERAL COURT DECISIONS ON STATE LAW HAVE CREATED A CONSTANT
TASK FOR THE TEXAS GOVERNOR, THE TEXAS LEGISLATURE, AND THE RAILROAD
COMMISSION.  THE GOVERNOR OF TEXAS, AS HAS BEEN NOTED ABOVE, FELT
CALLED UPON TO FORGE HIS OIL PROGRAM IN THE LIGHT OF THE REMOTEST
INFERENCES OF FEDERAL COURT OPINIONS.  IN ONE INSTANCE HE THOUGHT IT
NECESSARY TO DECLARE MARTIAL LAW.  FN25 SPECIAL SESSIONS OF THE
LEGISLATURE HAVE BEEN OCCUPIED WITH CONSIDERATION OF FEDERAL COURT
DECISIONS.  FN26  LEGISLATION PASSED UNDER THE CIRCUMSTANCES OF THE
STRAIN AND DOUBT CREATED BY THESE DECISIONS WAS NECESSARILY
UNSATISFACTORY.  FN27  THE RAILROAD COMMISSION HAS HAD TO ADJUST ITSELF
TO THE PERMUTATIONS OF THE LAW AS SEEN BY THE FEDERAL COURTS.  THE MOST
RECENT EXAMPLE WAS IN CONNECTION WITH THE ROWAN & NICHOLS CASE, IN
WHICH THE COMMISSION FELT COMPELLED TO ADOPT A NEW PRORATION SCHEME TO
COMPLY WITH THE DEMANDS OF A FEDERAL COURT DECISION WHICH WAS REVERSED
WHEN IT CAME TO THIS COURT.  311 U.S. 570, 572. 

AS HAS BEEN NOTED, THE FEDERAL COURT CASES HAVE DEALT PRIMARILY WITH
THE INTERPRETATION OF STATE LAW, SOME OF IT STATE LAW FAIRLY REMOTE
FROM OIL AND GAS PROBLEMS.  THE INSTANT CASE RAISED A NUMBER OF
PROBLEMS OF NO GENERAL SIGNIFICANCE ON WHICH A FEDERAL COURT CAN ONLY
TRY TO ASCERTAIN STATE LAW.  FN28  FOR EXAMPLE, WE ARE ASKED TO
DETERMINE WHETHER A PREVIOUS TRAVIS COUNTY DISTRICT COURT DECISION
MAKES THIS CASE RES ADJUDICATA AND WHETHER ANOTHER CASE PENDING IN
TRAVIS COUNTY DEPRIVED THE COMMISSION OF JURISDICTION TO CONSIDER
BURFORD'S APPLICATION.  THE EXISTENCE OF THESE PROBLEMS THROUGHOUT THE
OIL REGULATORY FIELD CREATES A FURTHER POSSIBILITY OF SERIOUS DELAY
WHICH CAN INJURE THE CONSERVATION PROGRAM, FOR UNDER OUR DECISION IN
RAILROAD COMMISSION V. PULLMAN CO., 312 U.S. 496, IT MAY BE NECESSARY
TO STAY FEDERAL ACTION PENDING AUTHORITATIVE DETERMINATION OF THE
DIFFICULT STATE QUESTIONS. 

THE CONFLICT BETWEEN FEDERAL COURTS AND TEXAS HAS LESSENED
APPRECIABLY IN RECENT YEARS PRIMARILY AS A RESULT OF THE DECISIONS IN
THE ROWAN & NICHOLS CASE.  310 U.S. 573; 311 U.S. 614; 311 U.S. 570. 
IN THOSE CASES WE ASSUMED THAT THE PRINCIPAL ISSUE IN THE REVIEW OF
RAILROAD COMMISSION ORDERS WAS WHETHER THE COMMISSION HAD CONFINED
ITSELF WITHIN THE BOUNDARIES OF DUE PROCESS OF LAW, AND HELD THAT ANY
SPECIAL RELIEF PROVIDED BY STATE STATUTES MUST BE PURSUED IN A STATE
COURT.  IT IS NOW ARGUED THAT UNDER THE DECISION OF THE TEXAS SUPREME
COURT IN RAILROAD COMMISSION V. SHELL OIL CO., 139 TEX. 66, 161 S.W.2D
1022, THE COURTS, WHETHER FEDERAL OR STATE, ARE REQUIRED TO REVIEW THE
COMMISSION'S ORDER NOT FOR CONSTITUTIONAL VALIDITY, BUT FOR COMPLIANCE
WITH A STANDARD OF "REASONABLENESS" UNDER THE STATE STATUTE WHICH, IT
IS SAID, IS DIFFERENT FROM THE CONSTITUTIONAL STANDARD OF DUE PROCESS. 

THE WHOLE CYCLE OF FEDERAL-STATE CONFLICT CANNOT BE PERMITTED TO
BEGIN AGAIN BY ACCEPTANCE OF THIS VIEW.  INSOFAR AS WE HAVE DISCRETION
TO DO SO, WE SHOULD LEAVE THESE PROBLEMS OF TEXAS LAW TO THE STATE
COURT WHERE EACH MAY BE HANDLED AS "ONE MORE ITEM IN A CONTINUOUS
SERIES OF ADJUSTMENTS."  ROWAN & NICHOLS, SUPRA, 310 U.S. AT 584. 

THESE QUESTIONS OF REGULATION OF THE INDUSTRY BY THE STATE
ADMINISTRATIVE AGENCY, WHETHER INVOLVING GAS OR OIL PRORATIONING
PROGRAMS OR RULE 37 CASES, SO CLEARLY INVOLVES BASIC PROBLEMS OF TEXAS
POLICY THAT EQUITABLE DISCRETION SHOULD BE EXERCISED TO GIVE THE TEXAS
COURTS THE FIRST OPPORTUNITY TO CONSIDER THEM.  "FEW PUBLIC INTERESTS
HAVE A HIGHER CLAIM UPON THE DISCRETION OF A FEDERAL CHANCELLOR THAN
THE AVOIDANCE OF NEEDLESS FRICTION WITH STATE POLICIES,  ...  THESE
CASES REFLECT A DOCTRINE OF ABSTENTION APPROPRIATE TO OUR FEDERAL
SYSTEM WHEREBY THE FEDERAL COURTS, 'EXERCISING A WISE DISCRETION,'
RESTRAIN THEIR AUTHORITY BECAUSE OF 'SCRUPULOUS REGARD FOR THE RIGHTFUL
INDEPENDENCE OF THE STATE GOVERNMENTS' AND FOR THE SMOOTH WORKING OF
THE FEDERAL JUDICIARY  ...  THIS USE OF EQUITABLE POWERS IS A
CONTRIBUTION OF THE COURTS IN FURTHERING THE HARMONIOUS RELATION
BETWEEN STATE AND FEDERAL AUTHORITY WITHOUT THE NEED OF RIGOROUS
CONGRESSIONAL RESTRICTION OF THOSE POWERS."  RAILROAD COMMISSION V.
PULLMAN CO., SUPRA, 500, 501.  FN29 

THE STATE PROVIDES A UNIFIED METHOD FOR THE FORMATION OF POLICY AND
DETERMINATION OF CASES BY THE COMMISSION AND BY THE STATE COURTS.  THE
JUDICIAL REVIEW OF THE COMMISSION'S DECISIONS IN THE STATE COURTS IS
EXPEDITIOUS AND ADEQUATE.  CONFLICTS IN THE INTERPRETATION OF STATE
LAW, DANGEROUS TO THE SUCCESS OF STATE POLICIES, ARE ALMOST CERTAIN TO
RESULT FROM THE INTERVENTION OF THE LOWER FEDERAL COURTS.  ON THE OTHER
HAND, IF THE STATE PROCEDURE IS FOLLOWED FROM THE COMMISSION TO THE
STATE SUPREME COURT, ULTIMATE REVIEW OF THE FEDERAL QUESTIONS IS FULLY
PRESERVED HERE.  CF. MATTHEWS V. RODGERS, 284 U.S. 521.  UNDER SUCH
CIRCUMSTANCES, A SOUND RESPECT FOR THE INDEPENDENCE OF STATE ACTION
REQUIRES THE FEDERAL EQUITY COURT TO STAY ITS HAND. 

THE DECISION OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
JUDGMENT OF THE DISTRICT COURT DISMISSING THE COMPLAINT IS AFFIRMED FOR
THE REASONS HERE STATED.  REVERSED. 

FN1  THE MAGNOLIA PETROLEUM CO. WAS PERMITTED TO INTERVENE WITH A
SIMILAR COMPLAINT AGAINST THE VALIDITY OF THE ORDER.  THE PARTIES
DEFENDANT INCLUDE BURFORD; BURFORD'S ASSIGNEE, THE X Y Z OIL AND GAS
CO.; AND THE COMMISSION.  HEREAFTER THE ORIGINAL PLAINTIFFS WILL BE
REFERRED TO AS THE COMPANIES AND THE DEFENDANTS WILL BE REFERRED TO AS
BURFORD OR AS THE COMMISSION.  THE CASE IS HERE ON A PETITION FOR
CERTIORARI BY THE COMMISSION AND ON A CROSS-PETITION FOR CERTIORARI BY
THE COMPANIES. 

FN2  FOR A DESCRIPTION OF THE NATURE OF THE SO-CALLED "APPEAL," SEE
STANOLIND OIL & GAS CO. V. MIDAS OIL CO., 123 S.W.2D 911, 913; GULF
LAND CO. V. ATLANTIC REFINING CO., 134 TEXAS 59, 73, 131 S.W.2D 73. 

FN3  SEE THE DISCUSSION IN THE OPINION BELOW, 130 F.2D 10, 17; CF.
TENNESSEE COAL CO. V. GEORGE, 233 U.S. 354, 359, 360 AND TEXAS PIPE
LINE V. WARE, 15 F.2D 171.  A STATUTE SIMILAR TO THAT INVOLVED IN THE
INSTANT CASE, WHICH PERMITS SUIT IN ANY COMPETENT COURT OF TRAVIS
COUNTY, TEXAS, HAS BEEN CONSTRUED TO BE AN EXPRESSION BY THE STATE OF
WILLINGNESS TO ALLOW THESE PROCEEDINGS TO BE BROUGHT IN A FEDERAL
COURT, REAGAN V. FARMERS' LOAN & TRUST CO., 154 U.S. 362, 392.  SINCE
FEDERAL EQUITY JURISDICTION DEPENDS ON FEDERAL STATUTES, THE TEXAS
STATUTORY PROVISION HAS LITTLE MEANING AS APPLIED TO SUCH CASES. 

FN4  UNITED STATES V. DERN, 289 U.S. 352, 360. 

FN5  PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, 185.  "RELUCTANCE THERE
HAS BEEN TO USE THE PROCESS OF FEDERAL COURTS IN RESTRAINT OF STATE
OFFICIALS THOUGH THE RIGHTS ASSERTED BY THE COMPLAINANTS ARE STRICTLY
FEDERAL IN ORIGIN.  ...  THERE MUST BE RELUCTANCE EVEN GREATER WHEN THE
RIGHTS ARE STRICTLY LOCAL, JURISDICTION HAVING NO OTHER BASIS THAN THE
ACCIDENTS OF RESIDENCE."  HAWKS V. HAMILL, 288 U.S. 52, 61. 

FN6  FOR A DESCRIPTION OF THE EAST TEXAS FIELD SEE RAILROAD
COMMISSION V. ROWAN & NICHOLS OIL CO., 311 U.S. 570, 574; TUCKER,
TODAY'S EAST TEXAS PROBLEMS ANALYZED IN SURVEY OF FIELD, OIL AND GAS
JOURNAL, APRIL 1, 1937, P. 10; WEBER, EAST TEXAS AS IT IS TODAY, OIL
AND GAS JOURNAL, APRIL 27, 1939, P. 12.  THE LATTER ARTICLE INCLUDES A
MAP OF THE AREA SHOWING VARIOUS DEVELOPMENTS IN THE FIELD.  FOR A
SIMPLE OUTLINE MAP, SEE 1941 ANNUAL REPORT, OIL & GAS DIVISION, TEXAS
RAILROAD COMMISSION, P. 34. 

FN7  GEOLOGICAL FACTORS MAKING FOR THE NECESSITY OF PUMPING ARE
DESCRIBED IN ELY, THE CONSERVATION OF OIL, 51 HARV. L. REV. 1209,
1220.  THE RELATION OF NATURAL GAS TO OIL PRODUCTION IS DESCRIBED IN
MILLER, FUNCTION OF NATURAL GAS IN THE PRODUCTION OF OIL. 

FN8  WELLS IN THE EAST TEXAS FIELD CONSIDERED UNNECESSARY FROM THE
ENGINEERING STANDPOINT ARE SAID TO HAVE COST $160,000,000.  FOR A
DISCUSSION OF THIS SUPERFLUOUS WELL PROBLEM, SEE ELY, THE CONSERVATION
OF OIL, SUPRA, 1232.  IN 1941 THERE WERE 910 OPERATORS IN THE EAST
TEXAS FIELD.  1941 RAILROAD COMMISSION REPORT, SUPRA, 208. 

FN9  15 U.S.C. SEC. 715, PANAMA REFINING CO. V. RYAN, 293 U.S. 388;
NOTE 12, INFRA. 

FN10  THE PROBLEM OF GAINING AN ADEQUATE REVENUE FROM THE PETROLEUM
INDUSTRY WAS PARTICULARLY SERIOUS IN TEXAS DURING THE PERIOD 1930-35. 
THE QUESTION WAS DISCUSSED BY GOVERNOR STERLING IN MESSAGES TO THE
LEGISLATURE IN 1931, 1932, AND 1933, AND BY GOVERNOR ALLRED IN 1935. 
SEE THE TEXAS SENATE JOURNAL, JAN. 13-MAY 23, 1931, P. 526; IBID., JULY
AUGUST, 1931, P. 594; IBID., SEPTEMBER-OCTOBER, 1931, P. 164; IBID.,
AUGUST-SEPTEMBER, 1932, P. 60; IBID., REG. SESS., 1933, PP. 20, 24;
IBID., REG. SESS., 1935, PP. 587, 589-90. 

FN11  VERNON'S TEXAS STAT. (1936), ART. 6008, SECS. 1, 22. 

FN12  FOR DESCRIPTION OF THE METHODS OF REGULATION OF THE OIL
INDUSTRY, SEE MARSHALL AND MEYERS, LEGAL PLANNING OF PETROLEUM
PRODUCTION, 41 YALE L. JOUR.  33; MARSHALL AND MEYERS, LEGAL PLANNING
OF PETROLEUM PRODUCTION:  TWO YEARS OF PRORATION, 42 YALE L. JOUR. 
702; ELY, THE CONSERVATION OF OIL, 51 HARV. L. REV. 1209; HARDWICKE,
LEGAL HISTORY OF CONSERVATION OF OIL IN TEXAS, IN THE AMERICAN BAR
ASSOCIATION'S PUBLICATION, LEGAL HISTORY OF CONSERVATION OF OIL AND
GAS, 214; WALKER, THE PROBLEM OF THE SMALL TRACT UNDER SPACING
REGULATIONS, 17 TEX. L. REV. (APPENDIX) 157; SUMMERS, OIL PRODUCTION
REGULATION - DUE PROCESS, 19 TEXAS L. REV. 1; DAVIS, JUDICIAL
EMASCULATION OF ADMINISTRATIVE ACTION, 19 TEX. L. REV. 29.  THE
INTERSTATE OIL COMPACT COMMISSION IS DESCRIBED IN ITS OWN PUBLICATION,
THE INTERSTATE COMPACT TO CONSERVE OIL AND GAS (1942), PUBLISHED OVER
THE SIGNATURE OF GOVERNOR PHILLIPS OF OKLAHOMA.  FEDERAL WARTIME
REGULATIONS CONCERNING THE DRILLING OF WELLS HAVE BEEN ISSUED BY THE
PETROLEUM ADMINISTRATION FOR WAR.  SEE CONSERVATION ORDER M-68 AS
AMENDED, 8 FED. REG. 3955, DISCUSSED IN 10 GEORGE WASHINGTON L. REV.
926. 

THE COMMISSION HAS DESCRIBED ITS OWN REGULATORY PROGRAM AS FOLLOWS: 

"THE RAILROAD COMMISSION OF TEXAS CARRIES OUT ITS FUNCTIONS OF
PRODUCTION CONTROL OR PRORATION BY AN ELABORATE SYSTEM OF ORDERS,
SCHEDULES, AND REPORTS.  IN ORDER TO KEEP THE PRODUCTION OF OIL FOR THE
STATE DURING ANY PERIOD WITHIN THE LIMITS OF A PREDETERMINED FIGURE,
THE COMMISSION SETS BY ORDER THE MAXIMUM ALLOWABLE PRODUCTION FOR THE
STATE.  THIS TOTAL ALLOWABLE IS THEN DISTRIBUTED AMONG THE VARIOUS
FIELDS, AND THE ALLOWABLE FOR EACH FIELD IN TURN IS ALLOCATED AMONG THE
COMPONENT PROPERTIES SO THAT THE COMMISSION, UNDER THIS PROCESS, FIXES
THE DAILY ALLOWABLE FOR EACH WELL DURING THE EFFECTIVE PERIOD OF EACH
ALLOWABLE ORDER.  AFTER THESE CALCULATIONS HAVE BEEN MADE, A SCHEDULE
OF THESE ALLOWABLES IS PREPARED, PRINTED, AND MAILED TO EACH OPERATOR
SO THAT HE MAY KNOW HOW MUCH OIL MAY BE PRODUCED FROM EACH OF HIS
LEASES DURING THE MONTH."  1939 ANNUAL REPORT OF THE OIL AND GAS
DIVISION, TEXAS RAILROAD COMMISSION, P. 9.    FN13  VERNON'S TEXAS
STAT. (1936), ART. 6014-G. 

FN14  BROWN V. HUMBLE OIL CO., 126 TEX. 296, 312, 83 S.W.2D 935, 87
S.W.2D 1069.  THIS PRINCIPLE IS A LIMITATION UPON THE SO-CALLED "RULE
OF CAPTURE" UNDER WHICH THE SURFACE OWNER IS ENTITLED NOT ONLY TO THE
AMOUNT OF OIL UNDER HIS LAND BUT TO ALL OTHER OIL WHICH HE CAN DRAIN
FROM UNDER HIS NEIGHBOR'S LAND TO HIS OWN.  THE RULE OF CAPTURE IS
DISCUSSED BY ELY, SUPRA, NOTE 12, AT 1218. 

FN15  "WE BELIEVE IT WOULD BE IMPOSSIBLE FOR THE LEGISLATURE TO LAY
DOWN A DEFINITE STANDARD BY WHICH IT COULD BE DETERMINED CORRECTLY JUST
WHEN AND UNDER WHAT CONDITIONS AN OIL PRODUCING AREA SHOULD BE DIVIDED
INTO DRILLING UNITS AND WHAT SIZE AND SHAPE THE UNITS SHOULD BE.  ...
IN PERFORMING ITS FUNCTIONS AS A FACT-FINDING BODY, THE CORPORATION
COMMISSION IS EMPOWERED  ...  TO TAKE EVIDENCE UPON ALL THESE SUBJECTS
AND OTHERS FOUND BY SCIENTIFIC INVESTIGATION AND RESEARCH TO HAVE A
BEARING UPON SECURING THE GREATEST POSSIBLE RECOVERY FROM THE COMMON
SOURCE OF SUPPLY, AND BY APPLICATION OF THE PRINCIPLES OF PHYSICS,
CHEMISTRY, GEOLOGY, AND MATHEMATICS, CAN DETERMINE BY CERTAIN
CALCULATIONS AT WHAT INTERVALS OF SPACE WELLS SHOULD BE LOCATED IN
ORDER TO BRING ABOUT SUCH RECOVERY AND THUS PREVENT WASTE AND ALSO
PROTECT THE CORRELATIVE RIGHTS OF ALL THE OWNERS OF INTERESTS
THEREIN."  PATTERSON V. STANOLIND OIL & GAS CO., 182 OKLA. 155, 161,
162, 77 P.2D 83. 

FN16  IN DANCIGER OIL & REFINING CO. V. RAILROAD COMMISSION, 49
S.W.2D 837, 842, THE COURT DESCRIBES THE GEOLOGICAL PHENOMENA WHICH ARE
THE BASIS OF THE RULES OF LAW DEALING WITH LEASEHOLDERS WHO, THROUGH
FULL UTILIZATION OF THEIR OWN TRACTS, MIGHT CAUSE WASTE FOR OTHERS, AND
CONTINUES:  "NO PARTICULAR LEASE OR WELL CAN THEREFORE BE TAKEN AS A
UNIT, BUT MUST BE CONSIDERED IN ITS RELATION TO ADJACENT LEASES OR
WELLS, WITH A VIEW TO CONSERVING THE WHOLE, AND IS SUBJECT TO
REGULATION ACCORDINGLY." 

THE WELL SPACING PROGRAM AND THE PRORATION PROGRAM CAN NOT BE
CONSIDERED SEPARATELY; "THE TWO ARE A PART OF A SINGLE INTEGRATED
SYSTEM AND MUST BE CONSIDERED TOGETHER."  DAVIS, NOTE 12, SUPRA, AT
55.  FOR A DISCUSSION OF THE INTERRELATION OF SPACING AND PRORATION,
SEE ELY, SUPRA, NOTE 12, AT 1229.  BECAUSE OF THE ECONOMIC CONSEQUENCES
OF GRANTING EXCEPTIONS UNDER RULE 37, THE COMMISSION MUST BE GIVEN FAIR
LATITUDE TO EXERCISE "SOUND JUDGMENT AND DISCRETION."  GULF LAND CO. V.
ATLANTIC REFINING CO., 134 TEX. 59, 79, 131 S.W.2D 73.  AND BECAUSE OF
THE DIFFICULTIES OF DECISION, THE COMMISSION MUST BE ALLOWED A
"REASONABLE MARGIN FOR ERROR."  RAILROAD COMMISSION V. SHELL OIL CO.,
139 TEX. 66, 75, 161 S.W.2D 1022. 

FN17  THE COMMISSION DEALT WITH APPROXIMATELY SIXTY RULE 37 CASES,
INCLUDING THIS ONE, IN ONE OR ANOTHER COURT IN 1941.  ANNUAL REPORT OF
THE RAILROAD COMMISSION OF TEXAS, 1941, PP. 15-26.  ELY, SUPRA, NOTE
12, 1230, ESTIMATES THAT 17,000 WELLS IN THE EAST TEXAS FIELD ARE
OPERATED UNDER EXCEPTION PERMITS. 

FN18  "THE COMMISSION IS CHARGED GENERALLY WITH THE CONSERVATION OF
OIL AND GAS IN THEIR PRODUCTION, STORAGE, TRANSPORTATION.  ...  THE
COMMISSION MUST MAKE RULES, REGULATIONS, AND ORDERS TO ACCOMPLISH
CONSERVATION OF OIL AND GAS.  ...  ONE OF THE THINGS THAT THE
COMMISSION MUST DO TO CONSERVE OIL AND GAS IS TO SEE THAT OIL AND GAS
FIELDS ARE DRILLED IN AN ORDERLY AND SCIENTIFIC MANNER.  IN ORDER TO
ACCOMPLISH ORDERLY DRILLING, THE COMMISSION HAS SIMPLY PROMULGATED A
RULE FIXING MINIMUM SPACING DISTANCES AT WHICH WELLS MAY BE DRILLED
WITHOUT APPLICATION, NOTICE, OR HEARING.  ANYONE DESIRING TO DRILL A
WELL AT A LESSER DISTANCE MUST SECURE A SPECIAL PERMIT, AFTER NOTICE
AND HEARING."  GULF LAND CO. V. ATLANTIC REFINING CO., 134 TEX. 59, 69,
131 S.W.2D 73. 

FN19  VERNON'S TEXAS STAT. (1936), ART. 6049C, SEC. 8. 

FN20  WEST TEXAS COMPRESS CO. V. PANHANDLE & S.F. RY. CO., 15 S.W.2D
558, 561. 

FN21  SUMMARY OF LITIGATION, ANNUAL REPORT OF THE OIL AND GAS
DIVISION, RAILROAD COMMISSION OF TEXAS, 1941, 15 ET SEQ. 

FN22  IN HIS MESSAGE OF AUGUST 3, 1931, TO THE TEXAS LEGISLATURE,
CONCERNING THE MACMILLAN DECISION, GOVERNOR STERLING SAID:  "AT THE
TIME THE OPINION WAS WRITTEN, THE COURT, KNOWING THAT THE LEGISLATURE
WAS IN SESSION, IT MAY REASONABLY BE ASSUMED THAT IF THE COURT HAD
THOUGHT THE LAWS WERE INVALID, WOULD HAVE HELD SO AS TO GIVE THIS
LEGISLATURE AN OPPORTUNITY TO ELIMINATE AND CORRECT ANY CAUSE FOR
INVALIDITY.  THE COURT HAVING FAILED TO DO THIS, WE ARE JUSTIFIED IN
ASSUMING THAT OUR EXISTING CONSERVATION LAWS ARE VALID.  ...  IT
APPEALS TO ME, IN VIEW OF THIS DECISION OF THE UNITED STATES COURT,
THAT IT WOULD BE UNWISE TO ATTEMPT RADICAL CHANGES IN OUR EXISTING
LAWS.  ANY ATTEMPT AT THEIR AMENDMENT OR MODIFICATION SHOULD RETAIN
THEIR GENERAL STRUCTURE AND IDEAS, AND NOT INJECT CHANGES THAT WOULD
INVITE ANY NEW ATTACKS UPON THEM."  TEXAS SENATE JOURNAL, JULY-AUGUST,
1931, P. 594. 

FN23  HARDWICKE, SUPRA, NOTE 12, 230-239. 

FN24  IN 1936, IN AN ACTION TO RESTRAIN THE ENFORCEMENT BY THE STATE
COMMISSION OF AN ORDER LIMITING THE PRODUCTION OF GAS, THE FEDERAL
COURT SAID:  "THIS CONTROVERSY HAS BEEN LONG DRAWN OUT.  IN VARYING
FORMS, UNDER DIFFERENT STATUTES, BUT ALWAYS TO THE SAME PURPORT AND
EFFECT AS TO THESE COMPLAINANTS, ORDER AFTER ORDER HAS BEEN DRAWN,
ENJOINED, AND DRAWN AGAIN.  THIS IS THE FIFTH TIME THIS COURT HAS
WRITTEN.  TEXOMA NATURAL GAS CO. V. RAILROAD COMMISSION, 59 F.2D 750;
TEXOMA NATURAL GAS CO. V. TERRELL, 2 F.SUPP.  168; CANADIAN RIVER GAS
CO. V. TERRELL, 4 F.SUPP.  222; TEXAS PANHANDLE GAS CO. V. THOMPSON, 12
F.SUPP.  462."  CONSOLIDATED GAS UTILITIES CORP. V. THOMPSON, 14
F.SUPP.  318, 328. 

IN SUMMARIZING LITIGATION PRIOR TO 1934, THE FEDERAL COURT SAID:  "IN
NOT A SINGLE ONE OF THESE CASES DID WE FIND THE STATUTE UNREASONABLE OR
INVALID.  IN NOT A SINGLE ONE DID WE FIND THE ORDERS INVALID BECAUSE,
THOUGH COMPLYING WITH THE STATUTE, THEY VIOLATED THE CONSTITUTION.  IN
EACH OF THE CASES IN WHICH INJUNCTIONS ISSUED WE MADE IT CLEAR IT WAS
BECAUSE WE THOUGHT THE ORDERS HAD BEEN ENTERED IN THE TEETH OF STATUTES
FORBIDDING THE COMMISSION'S DOING WHAT IT ATTEMPTED TO DO."  AMAZON
PETROLEUM CORP. V. RAILROAD COMMISSION, 5 F.SUPP.  633, 635. 

FOR A SURVEY OF LITIGIOUS HISTORY OF THE EAST TEXAS FIELD, SEE
HARDWICKE AND DAVIS, NOTE 12, SUPRA. 

FN25  FOR A DISCUSSION OF THE MARTIAL LAW INTERLUDE, SEE STERLING V.
CONSTANTIN, 287 U.S. 378; HARDWICKE, SUPRA, NOTE 12, 233-236. 

FN26  THE SPECIAL SESSION OF JULY AND AUGUST, 1931, WAS IN SESSION
WHEN MACMILLAN V. RAILROAD COMMISSION WAS DECIDED, AND, AS HAS BEEN
NOTED ABOVE, THE MACMILLAN CASE PROVIDED THE SPECIAL SESSION WITH THE
BULK OF ITS BUSINESS.  PEOPLES' PETROLEUM PRODUCERS V. SMITH, 1
F.SUPP.  361, WAS THE CAUSE OF THE SPECIAL SESSION OF NOVEMBER, 1932. 
IN HIS INTRODUCTORY MESSAGE TO THE SPECIAL SESSION, GOVERNOR STERLING
SAID:  "MOST ASSUREDLY, I WOULD NOT, AT THIS TIME, HAVE CALLED YOU INTO
EXTRAORDINARY SESSION EXCEPT I BELIEVE A GRAVE CRISIS AGAIN CONFRONTS
THE STATE AND OUR PEOPLE, ON ACCOUNT OF THE FEDERAL COURT HAVING HELD
THAT THE RAILROAD COMMISSION HAS GONE BEYOND THE AUTHORITY GIVEN IN
THIS STATUTE ENACTED AT THAT TIME IN PROMULGATING THEIR ORDERS AS TO
PRORATION AND CONSERVATION OF OIL AND GAS.  ...  IT IS APPARENT THAT
(AS A RESULT OF THE DECISION) THE STATE'S GREATEST NATURAL RESOURCE -
OIL AND GAS - WILL BE WASTED AND DESTROYED, RESULTING IN A TREMENDOUS
FINANCIAL INJURY TO THE STATE, ESPECIALLY TO THE TAXPAYERS AND THE
PUBLIC SCHOOLS.  IT IS APPARENT TO ME THAT UNDER SUCH CONDITIONS, THE
STATE'S INCOME, AS A RESULT OF THE GROSS PRODUCTION TAX ON OIL, WILL BE
REDUCED FROM APPROXIMATELY $16,000 A DAY TO A FEW THOUSAND DOLLARS PER
DAY, THUS DEPRIVING THE STATE OF A TREMENDOUS AMOUNT OF REVENUE." 
TEXAS SENATE JOURNAL, NOV. 1932, PP. 3, 4. 

FN27  CONSIDER FOR EXAMPLE THE PLIGHT OF THE STATE AUTHORITIES DURING
THE PERIOD IN WHICH THE FEDERAL COURT FOUND IT NECESSARY TO REJECT THE
COMMISSION'S EXPERT TESTIMONY ON A BASIC MATTER OF POLICY AS "LARGELY
THEORY AND SPECULATION" IN THE MACMILLAN CASE, SUPRA, SIMILAR TESTIMONY
WAS ACCEPTED BY THE STATE COURT IN THE DANCIGER CASE, SUPRA, AND LIKE
TESTIMONY WAS IN TURN ACCEPTED BY THE FEDERAL COURT IN AMAZON PETROLEUM
CORP. V. RAILROAD COMMISSION, 5 F.SUPP.  633. 

GOVERNOR ALLRED IN HIS MESSAGE OF JAN. 16, 1935, RECOMMENDED TO THE
LEGISLATURE THAT IT REVISE THE CONSERVATION LAWS GENERALLY.  HE SAID,
"MUCH OF THE TROUBLE OF THE OIL INDUSTRY AND THE OFFICIAL LIFE CHARGED
WITH ITS REGULATION HAS BEEN DUE TO MISUNDERSTANDINGS, MISINFORMATION,
AND ILL-CONSIDERED CRITICISM BY THOSE EITHER UNFAMILIAR OR UNCONCERNED
WITH THE MAGNITUDE OR PROPER SOLUTION OF ITS PROBLEMS OR THE PRACTICAL
DIFFICULTIES CONFRONTING OUR PUBLIC OFFICIALS IN THIS NEW AND
UNEXPLORED FIELD OF REGULATION.  IN THE PAST, NOT A LITTLE OF OUR
DIFFICULTIES HAS BEEN DUE TO THE FACT THAT LAWS DEALING WITH THE
PRODUCTION OF OIL AND GAS, AS WELL AS THE RULES AND REGULATIONS OF THE
CONSERVATION COMMISSION PASSED THEREUNDER, HAVE BEEN ENACTED UNDER HIGH
PRESSURE AT A TIME WHEN, FIGURATIVELY SPEAKING, THE 'HOUSE WAS ON
FIRE.'"  TEXAS SEN. JOURNAL, REG. SESS. 1935, 84, 89. 

FN28  THE COMPANY PRESSES UPON US AS SIGNIFICANT IN THE DETERMINATION
OF ITS RIGHTS THE FOLLOWING FOUR QUESTIONS OF STATE LAW: 

(1)  BURFORD'S 2.33 ACRES WERE VOLUNTARILY SUBDIVIDED FROM A LARGER
PORTION AND THEREFORE THE STATE COMMISSION UNDER THE STATE LAW HAS NO
AUTHORITY TO PERMIT AN EXCEPTION TO PREVENT CONFISCATION. 

(2)  "AS A MATTER OF STATE LAW, UNDER THE UNDISPUTED EVIDENCE, THE
JUDGMENT  ...  IS RES ADJUDICATA." 

(3)  THE PENDENCY OF A RELATED CAUSE IN THE STATE COURTS, "UNDER THE
LAW OF THE STATE  ... DEPRIVED THE RAILROAD COMMISSION PENDENTE LITE OF
JURISDICTION." 

(4)  "THE GRANTING OF FOUR LOCATIONS (WAS) WITHOUT AUTHORITY IN THE
STATE LAW" AND WAS ARBITRARY. 

TO DETERMINE THE VALIDITY OF THESE ASSERTIONS, PRESENTING OBVIOUSLY
DIFFICULT PROBLEMS OF STATE LAW, WE ARE ASKED BY THE COMPANY TO ANALYZE
AT LEAST FIFTY TEXAS DECISIONS.  IF THE FEDERAL COURT MISINTERPRETS
ONLY ONE OF THESE DECISIONS, WE SHALL HAVE PROVOKED A NEEDLESS CONFLICT
WITH THE TEXAS COURTS. 

FN29  EQUITY'S DISCRETION TO DECLINE TO EXERCISE ITS JURISDICTION MAY
BE APPLIED WHEN JUDICIAL RESTRAINT SEEMS REQUIRED BY CONSIDERATIONS OF
GENERAL WELFARE.  "COURTS OF EQUITY MAY, AND FREQUENTLY DO, GO MUCH
FARTHER BOTH TO GIVE AND WITHHOLD RELIEF IN FURTHERANCE OF THE PUBLIC
INTEREST THAN THEY ARE ACCUSTOMED TO GO WHEN ONLY PRIVATE INTERESTS ARE
INVOLVED."  VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515, 552. 
IT IS PARTICULARLY DESIRABLE TO DECLINE TO EXERCISE EQUITY JURISDICTION
WHEN THE RESULT IS TO PERMIT A STATE COURT TO HAVE AN OPPORTUNITY TO
DETERMINE QUESTIONS OF STATE LAW WHICH MAY PREVENT THE NECESSITY OF
DECISION ON A CONSTITUTIONAL QUESTION, CHICAGO V. FIELDCREST DAIRIES,
316 U.S. 168, 173.  EQUITY RELIEF MAY BE WITHHELD WHERE THE STATE
REMEDY IS ADEQUATE, ATLAS LIFE INS. CO. V. W.I. SOUTHERN, INC., 306
U.S. 563, OR IF A FEDERAL COURT IS ASKED TO REVIEW THE PROCEEDINGS OF A
FEDERAL AGENCY BY INJUNCTION, WHERE AN ADEQUATE STATUTORY METHOD OF
REVIEW HAS BEEN PROVIDED, MYERS V. BETHLEHEM SHIPBUILDING CORP., 303
U.S. 41.  IN RECENT YEARS, THIS COURT HAS REFUSED TO PERMIT THE
EXERCISE OF FEDERAL EQUITY JURISDICTION TO ENJOIN THE ENFORCEMENT OF
STATE CRIMINAL STATUTES, BEAL V. MISSOURI PACIFIC R. CORP., 312 U.S.
45; WATSON V. BUCK, 313 U.S. 387; DOUGLAS V. JEANNETTE, ANTE, P. 157. 
WE HAVE REFUSED TO PERMIT INJUNCTIONS TO INTERFERE WITH THE COLLECTION
OF STATE TAXES, CALIFORNIA V. LATIMER, 305 U.S. 255; KOHN V. CENTRAL
DISTRIBUTING CO., 306 U.S. 531; AND SEE 28 U.S.C. SEC. 41.  WE HAVE
HELD THAT AN EQUITY COURT "MAY IN ITS DISCRETION IN THE EXERCISE OF THE
JURISDICTION COMMITTED TO IT GRANT OR DENY RELIEF UPON PERFORMANCE OF A
CONDITION WHICH WILL SAFEGUARD THE PUBLIC INTEREST."  SECURITIES &
EXCHANGE COMM'N V. UNITED STATES REALTY CO., 310 U.S. 434, 455;
AMERICAN UNITED MUTUAL LIFE INS. CO. V. AVON PARK, 311 U.S. 138, 145. 
EQUITY IN ITS DISCRETION MAY DECLINE TO AID A UTILITY WHICH SEEKS TO
PREVENT A PUBLIC SERVICE COMMISSION FROM MAKING AN INVESTIGATION WHICH
IS AT LEAST ARGUABLY WITHIN ITS POWER, PETROLEUM EXPLORATION V. PUBLIC
SERVICE COMM'N, 304 U.S. 209; OR A RAILROAD WHICH HAS AN ADEQUATE FORM
OF STATE RELIEF, ILLINOIS COMMERCE COMM'N V. THOMSON, 318 U.S. 675. 
EQUITY MAY IMPOSE TERMS AND CONDITIONS UPON THE PARTY AT WHOSE INSTANCE
IT PROPOSES TO ACT AND "THE POWER TO IMPOSE SUCH CONDITIONS IS FOUNDED
UPON, AND ARISES FROM, THE DISCRETION WHICH THE COURT HAS IN SUCH
CASES, TO GRANT, OR NOT TO GRANT, THE INJUNCTION APPLIED FOR."  INLAND
STEEL CO. V. UNITED STATES, 306 U.S. 153, 156. 

MR. JUSTICE DOUGLAS, CONCURRING: 

I AGREE WITH THE OPINION OF THE COURT AND JOIN IN IT.  BUT THERE ARE
OBSERVATIONS IN THE DISSENTING OPINION WHICH IMPEL ME TO ADD A FEW
WORDS.  IF THE ISSUES IN THIS CASE WERE FRAMED AS THE DISSENTING
OPINION FRAMES THEM, I WOULD AGREE THAT WE SHOULD REACH THE MERITS AND
NOT DIRECT A DISMISSAL OF THE COMPLAINT.  BUT THE OPINION OF THE COURT
AS I READ IT DOES NOT HOLD OR EVEN FAIRLY IMPLY THAT "THE ENFORCEMENT
OF STATE RIGHTS CREATED BY STATE LEGISLATION AND AFFECTING STATE
POLICIES IS LIMITED TO THE STATE COURTS."  ANY SUCH HOLDING WOULD
RESULT IN A DRASTIC INROAD ON DIVERSITY JURISDICTION - A LIMITATION
WHICH I AGREE MIGHT BE DESIRABLE BUT WHICH CONGRESS, NOT THIS COURT,
SHOULD MAKE.  THE HOLDING IN THESE CASES, HOWEVER, GOES TO NO SUCH
LENGTH.    THIS DECISION IS BUT AN APPLICATION OF THE PRINCIPLE
EXPRESSED IN PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, 185, THAT "FEDERAL
COURTS OF EQUITY SHOULD EXERCISE THEIR DISCRETIONARY POWER WITH PROPER
REGARD FOR THE RIGHTFUL INDEPENDENCE OF STATE GOVERNMENTS IN CARRYING
OUT THEIR DOMESTIC POLICY."  THAT CASE, LIKE THE PRESENT ONE, WAS IN
THE FEDERAL COURT BY THE DIVERSITY OF CITIZENSHIP ROUTE.  IT INVOLVED A
RECEIVERSHIP OF AN INSOLVENT PENNSYLVANIA CORPORATION.  THOUGH THE
FEDERAL PROCEEDING WAS FIRST IN TIME, THIS COURT HELD THAT THE FEDERAL
COURT SHOULD STAY ITS HAND AND TURN OVER THE ASSETS OF THE CORPORATION
TO THE STATE ADMINISTRATIVE AGENCY CHARGED BY STATE LAW WITH THE
RESPONSIBILITY OF SUPERVISION AND LIQUIDATION.  IN THAT CASE FEDERAL
ACTION WOULD HAVE PREEMPTED THE FIELD AND EXCLUDED THE ASSERTION OF
STATE AUTHORITY.  IN THESE CASES THE RESULT OF FEDERAL ACTION WOULD BE
POTENTIALLY MUCH MORE SERIOUS IN TERMS OF FEDERAL-STATE RELATIONS, AS
THE OPINION OF THE COURT MAKES PLAIN. 

THE TEXAS STATUTE WHICH GOVERNS SUITS TO SET ASIDE THESE ORDERS OF
THE RAILROAD COMMISSION HAS BEEN CONSTRUED BY THE TEXAS COURTS TO GIVE
TO THE SUPERVISING COURTS A LARGE MEASURE OF CONTROL OVER THE
ADMINISTRATIVE PROCESS.  THAT CONTROL IS MUCH GREATER, FOR EXAMPLE,
THAN THE CONTROL EXERCISED BY FEDERAL CIRCUIT COURTS OF APPEALS OVER
THE ORDERS OF SUCH AGENCIES AS THE NATIONAL LABOR RELATIONS BOARD.  THE
OPINION OF THE COURT CALLS THE RAILROAD COMMISSION AND THE TEXAS COURTS
"WORKING PARTNERS."  BUT AS ITS REVIEW OF TEXAS DECISIONS SHOWS, THE
COURTS MAY AT TIMES BE THE SENIOR AND DOMINANT MEMBER OF THAT
PARTNERSHIP IF THEY PERFORM THE FUNCTIONS WHICH TEXAS LAW PLACES ON
THEM.  THE COURTS DO NOT SIT MERELY TO ENFORCE RIGHTS BASED ON ORDERS
OF THE STATE ADMINISTRATIVE AGENCY.  THEY SIT IN JUDGMENT ON THAT
AGENCY.  THAT, TO ME, IS THE CRUX OF THE MATTER.  IF THE FEDERAL COURTS
UNDERTOOK TO SIT IN REVIEW, SO TO SPEAK, OF THIS STATE ADMINISTRATIVE
AGENCY, THEY WOULD IN EFFECT ACTIVELY PARTICIPATE IN THE FASHIONING OF
THE STATE'S DOMESTIC POLICY.  THAT INTERFERENCE WOULD BE A CONTINUING
ONE, AS THE OPINION OF THE COURT POINTS OUT.  MOREOVER, DIVIDED
AUTHORITY WOULD RESULT.  DIVIDED AUTHORITY BREEDS FRICTION - FRICTION
POTENTIALLY MORE SERIOUS THAN WOULD HAVE OBTAINED IN PENNSYLVANIA V.
WILLIAMS, IF THE ADMINISTRATION OF THE AFFAIRS OF THAT INSOLVENT
CORPORATION HAD BEEN LEFT IN THE FEDERAL COURT TO THE EXCLUSION OF THE
STATE ADMINISTRATIVE AGENCY. 

MR. JUSTICE MURPHY JOINS IN THIS OPINION. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

TO DENY A SUITOR ACCESS TO A FEDERAL DISTRICT COURT UNDER THE
CIRCUMSTANCES OF THIS CASE IS TO DISREGARD A DUTY ENJOINED BY CONGRESS
AND MADE MANIFEST BY THE WHOLE HISTORY OF THE JURISDICTION OF THE
UNITED STATES COURTS BASED UPON DIVERSITY OF CITIZENSHIP BETWEEN
PARTIES.  FOR I AM ASSUMING THAT LAW DECLARED BY THIS COURT, IN
CONTRADISTINCTION TO LAW DECLARED BY CONGRESS, IS SOMETHING OTHER THAN
THE MANIPULATION OF WORDS TO FORMULATE A PREDETERMINED RESULT. 
JUDICIAL LAW TO ME IMPLIES AT LEAST SOME CONTINUITY OF INTELLECTUAL
CRITERIA AND PROCEDURES IN DEALING WITH RECURRING PROBLEMS. 

I BELIEVE IT TO BE WHOLLY ACCURATE TO SAY THAT THROUGHOUT OUR HISTORY
IT HAS NEVER BEEN QUESTIONED THAT A RIGHT CREATED BY STATE LAW AND
ENFORCEABLE IN THE STATE COURTS CAN ALSO BE ENFORCED IN THE FEDERAL
COURTS WHERE THE PARTIES TO THE CONTROVERSY ARE CITIZENS OF DIFFERENT
STATES.  THE REASONS WHICH LED CONGRESS TO GRANT SUCH JURISDICTION TO
THE FEDERAL COURTS ARE FAMILIAR.  IT WAS BELIEVED THAT, CONSCIOUSLY OR
OTHERWISE, THE COURTS OF A STATE MAY FAVOR THEIR OWN CITIZENS.  BIAS
AGAINST OUTSIDERS MAY BECOME EMBEDDED IN A JUDGMENT OF A STATE COURT
AND YET NOT BE SUFFICIENTLY APPARENT TO BE MADE THE BASIS OF A FEDERAL
CLAIM.  TO AVOID POSSIBLE DISCRIMINATIONS OF THIS SORT, SO THE THEORY
GOES, A CITIZEN OF A STATE OTHER THAN THAT IN WHICH HE IS SUING OR
BEING SUED OUGHT TO BE ABLE TO GO INTO A WHOLLY IMPARTIAL TRIBUNAL,
NAMELY, THE FEDERAL COURT SITTING IN THAT STATE.  THUS, THE BASIC
PREMISE OF FEDERAL JURISDICTION BASED UPON DIVERSITY OF THE PARTIES'
CITIZENSHIP IS THAT THE FEDERAL COURTS SHOULD AFFORD REMEDIES WHICH ARE
COEXTENSIVE WITH RIGHTS CREATED BY STATE LAW AND ENFORCEABLE IN STATE
COURTS. 

THAT IS THE THEORY OF DIVERSITY JURISDICTION.  WHETHER IT IS A SOUND
THEORY, WHETHER DIVERSITY JURISDICTION IS NECESSARY OR DESIRABLE IN
ORDER TO AVOID POSSIBLE UNFAIRNESS BY STATE COURTS, STATE JUDGES AND
JURIES, AGAINST OUTSIDERS, WHETHER THE FEDERAL COURTS OUGHT TO BE
RELIEVED OF THE BURDEN OF DIVERSITY LITIGATION,  - THESE ARE MATTERS
WHICH ARE NOT MY CONCERN AS A JUDGE.  THEY ARE THE CONCERN OF THOSE
WHOSE BUSINESS IT IS TO LEGISLATE, NOT MINE.  I SPEAK AS ONE WHO HAS
LONG FAVORED THE ENTIRE ABOLITION OF DIVERSITY JURISDICTION.  SEE 13
CORNELL L.Q. 499, 520 ET SEQ. BUT I MUST DECIDE THIS CASE AS A JUDGE
AND NOT AS A LEGISLATIVE REFORMER. 

ASIDE FROM THE JOHNSON ACT OF MAY 14, 1934, 48 STAT. 775,  FN1  THE
MANY POWERFUL AND PERSISTENT LEGISLATIVE EFFORTS TO ABOLISH OR RESTRICT
DIVERSITY JURISDICTION HAVE EVER SINCE THE CIVIL WAR BEEN REJECTED BY
CONGRESS.  AGAIN AND AGAIN LEGISLATION DESIGNED TO MAKE INROADS UPON
DIVERSITY JURISDICTION HAS BEEN PROPOSED TO CONGRESS, AND ON EACH
OCCASION CONGRESS HAS DELIBERATELY REFUSED TO ACT.  SEE, FOR EXAMPLE,
THE RECENT EFFORTS TO RESTRICT DIVERSITY JURISDICTION WHICH WERE
PROVOKED BY THE BLACK & WHITE TAXICAB DECISION, 276 U.S. 518; SEN. REP.
NO. 626, 70TH CONG., 1ST SESS.; SEN. REP. NO. 691, 71ST CONG., 2D
SESS.; SEN. REP. NO. 530 AND SEN. REP. NO. 701, 72D CONG., 1ST SESS.
WE ARE DEALING, THEN, NOT WITH A JURISDICTION EVOLVED AND SHAPED BY THE
COURTS BUT RATHER WITH ONE EXPLICITLY CONFERRED AND UNDEVIATINGLY
MAINTAINED BY CONGRESS. 

THE ONLY LIMITATIONS UPON THE EXERCISE OF DIVERSITY JURISDICTION -
APART FROM THAT WHICH CONGRESS MADE IN THE JOHNSON ACT - ARE, BROADLY
SPEAKING, THOSE ILLUSTRATED BY RAILROAD COMM'N V. ROWAN & NICHOLS OIL
CO., 310 U.S. 573, AS AMENDED IN 311 U.S. 614-15; RAILROAD COMM'N V.
PULLMAN CO., 312 U.S. 496; AND CHICAGO V. FIELDCREST DAIRIES, 316 U.S.
168.  IN ROWAN & NICHOLS THE CLAIM BASED UPON STATE LAW WAS DERIVED
FROM A STATUTE REQUIRING PRORATION ON A "REASONABLE BASIS," AND IT WAS
NOT CLEAR FROM THE DECISIONS OF THE STATE COURTS WHETHER SUCH COURTS
MIGHT EXERCISE AN INDEPENDENT JUDGMENT AS TO WHAT WAS "REASONABLE." 
311 U.S. AT 615.  AND IN PULLMAN IT WAS ALSO "FAR FROM CLEAR" WHETHER
STATE LAW, AS AUTHORITATIVELY DEFINED BY THE LOCAL COURTS, MIGHT NOT
DISPLACE THE FEDERAL QUESTIONS RAISED BY THE BILL.  312 U.S. AT 499. 
WHERE THE CONTROLLING STATE LAW IS SO UNDEFINED THAT A FEDERAL COURT
ATTEMPTING TO APPLY SUCH LAW WOULD BE GROPING UTTERLY IN THE DARK -
WHERE "NO MATTER HOW SEASONED THE JUDGMENT OF THE DISTRICT COURT MAY
BE, IT CANNOT ESCAPE BEING A FORECAST RATHER THAN A DETERMINATION,"
RAILROAD COMM'N V. PULLMAN CO., 312 U.S. AT 499 - A COURT OF EQUITY MAY
"AVOID THE WASTE OF A TENTATIVE DECISION," ID., AT 500.  THE PULLMAN
AND FIELDCREST DAIRIES CASES ARE MERELY ILLUSTRATIVE OF ONE PHASE OF
THE BASIC CONSTITUTIONAL DOCTRINE THAT SUBSTANTIAL CONSTITUTIONAL
ISSUES SHOULD BE ADJUDICATED ONLY WHEN NO ALTERNATIVES ARE OPEN.  A
DEFINITIVE RULING BY THE STATE COURTS UPON THE QUESTIONS OF
CONSTRUCTION OF THE STATE STATUTES MIGHT HAVE TERMINATED THE
CONTROVERSIES IN THOSE CASES AND THUS ELIMINATED SERIOUS CONSTITUTIONAL
QUESTIONS.  UNDER SUCH CIRCUMSTANCES IT WAS AN AFFIRMATION AND NOT A
DENIAL OF FEDERAL JURISDICTION IN EACH OF THOSE CASES FOR THE DISTRICT
COURT TO HOLD THE BILL PENDING A SEASONABLE DETERMINATION OF THE LOCAL
ISSUES IN A PROCEEDING TO BE BROUGHT IN THE STATE COURTS. 

IF, IN A CASE OF THIS SORT, THE STATE RIGHT SOUGHT TO BE ENFORCED IN
THE FEDERAL COURTS DEPENDED UPON A "FORECAST RATHER THAN A
DETERMINATION" OF STATE LAW, IF THE FEDERAL COURT WAS PRACTICALLY
IMPOTENT TO ENFORCE STATE LAW BECAUSE OF ITS INABILITY TO FATHOM THE
COMPLEXITIES, LEGAL OR FACTUAL, OF LOCAL LAW, THE RULE OF ROWAN &
NICHOLS WOULD BE APPLICABLE.  IN SUCH A SITUATION THE LINE OF
DEMARCATION BETWEEN WHAT BELONGS TO THE STATE ADMINISTRATIVE BODY AND
WHAT TO ITS COURTS SHOULD NOT BE DRAWN BY THE FEDERAL COURTS.  IF IT
COULD BE SHOWN THAT THE CIRCUMSTANCES OF THIS CASE WARRANTED THE
APPLICATION OF SUCH A DOCTRINE OF ABSTENTION, I WOULD GLADLY JOIN IN
THE DECISION OF THE COURT.  BUT SUCH A SHOWING HAS NOT BEEN ATTEMPTED,
NOR, I BELIEVE, COULD IT BE MADE. 

LET US EXAMINE BRIEFLY THE NATURE OF THE RIGHTS SOUGHT HERE TO BE
ENFORCED IN THE FEDERAL COURTS.  IN 1919 THE TEXAS RAILROAD COMMISSION
ISSUED ITS RULE 37 IMPOSING GENERAL SPACING LIMITATIONS UPON THE
DRILLING OF OIL WELLS, "PROVIDED THAT THE COMMISSION IN ORDER TO
PREVENT WASTE OR TO PREVENT THE CONFISCATION OF PROPERTY" WOULD GRANT
EXCEPTIONS FROM THE GENERAL RESTRICTIONS.  THE ORDER OF THE RAILROAD
COMMISSION IN THIS CASE GRANTED A PERMIT TO DRILL A WELL IN EXCEPTION
TO RULE 37.  SECTION 8 OF ARTICLE 6049C OF VERNON'S TEXAS CIVIL
STATUTES, 1925, PROVIDES THAT ANY "INTERESTED PERSON AFFECTED BY  ...
ANY RULE, REGULATION OR ORDER MADE OR PROMULGATED BY THE COMMISSION
THEREUNDER, AND WHO MAY BE DISSATISFIED THEREWITH, SHALL HAVE THE RIGHT
TO FILE A SUIT IN A COURT OF COMPETENT JURISDICTION IN TRAVIS COUNTY,
TEXAS, AND NOT ELSEWHERE, AGAINST THE COMMISSION, OR THE MEMBERS
THEREOF, AS DEFENDANTS, TO TEST THE VALIDITY OF SAID LAWS, RULES,
REGULATIONS OR ORDERS." 

LOOKING ONLY AT THE STATUTE, ONE COULD FIND AT LEAST TWO POSSIBLE
SOURCES OF AMBIGUITY AND CONFUSION.  BY WHAT STANDARDS SHOULD THE
COURTS BE GOVERNED IN REVIEWING THE "VALIDITY" OF COMMISSION ORDERS? 
DOES THE STATUTORY LIMITATION OF COURTS "OF COMPETENT JURISDICTION IN
TRAVIS COUNTY, TEXAS," PRECLUDE REVIEW IN THE FEDERAL DISTRICT COURT
SITTING IN TRAVIS COUNTY?  FORTUNATELY, WE NEED NO LONGER LOOK ONLY TO
THE WORDS OF THE STATUTE.  THESE QUESTIONS ARE NOT NEW.  THEY ARE NOT
PRESENTED IN THIS CASE FOR THE FIRST TIME.  WE ARE NOT WRITING ON A
CLEAN SLATE. 

IT IS TRUE THAT TEXAS LAW GOVERNING REVIEW OF COMMISSION ORDERS UNDER
RULE 37 HAS NOT ALWAYS BEEN CLEAR AND CERTAIN, AND THAT THERE MAY BE
PARTS OF THE STATUTE AND SOME OF THE RAILROAD COMMISSION'S RULES, WITH
WHICH WE ARE NOT NOW CONCERNED, WHICH, LIKE OTHER LEGAL MATERIALS, ARE
NOT AS CLEAR AS THEY MIGHT BE.  BUT, IN A SERIES OF RECENT DECISIONS,
THE SUPREME COURT OF TEXAS HAS NOT ONLY GIVEN PRECISION TO THE CONCEPTS
OF "WASTE" AND "CONFISCATION OF PROPERTY" EMPLOYED IN RULE 37, IT HAS
ALSO DEFINED WITH CLARITY THE SCOPE OF JUDICIAL REVIEW OF COMMISSION
ACTION.  IN GULF LAND CO. V. ATLANTIC REFINING CO., 134 TEX. 59, 70-71,
131 S.W.2D 73, THE COURT HELD THAT "THE TERM 'CONFISCATION' EVIDENTLY
HAS REFERENCE TO DEPRIVING THE OWNER OR LESSEE OF A FAIR CHANCE TO
RECOVER THE OIL AND GAS IN OR UNDER HIS LAND, OR THEIR EQUIVALENTS IN
KIND.  IT IS EVIDENT THAT THE WORD REFERS PRINCIPALLY TO DRAINAGE. 
UNDER ONE OF THE EXCEPTIONS IN RULE 37, WELL PERMITS MAY BE GRANTED TO
PREVENT 'CONFISCATION.'  IT IS THE LAW THAT EVERY OWNER OR LESSEE OF
LAND IS ENTITLED TO A FAIR CHANCE TO RECOVER THE OIL AND GAS IN OR
UNDER HIS LAND, OR THEIR EQUIVALENTS IN KIND.  ANY DENIAL OF SUCH FAIR
CHANCE WOULD BE 'CONFISCATION' WITHIN THE MEANING OF RULE 37."  AND IN
RAILROAD COMMISSION V. SHELL OIL CO., 139 TEX. 66, 80, 161 S.W.2D 1022,
DECIDED BY THE SUPREME COURT OF TEXAS ON MARCH 11, 1942, THE SCOPE OF
JUDICIAL REVIEW CONTEMPLATED BY TEXAS LAW WAS AUTHORITATIVELY DEFINED:
"IN TEXAS, IN ALL TRIALS CONTESTING THE VALIDITY OF AN ORDER, RULE, OR
REGULATION OF AN ADMINISTRATIVE AGENCY, THE TRIAL IS NOT FOR THE
PURPOSE OF DETERMINING WHETHER THE AGENCY ACTUALLY HEARD SUFFICIENT
EVIDENCE TO SUPPORT ITS ORDERS, BUT WHETHER AT THE TIME SUCH ORDER WAS
ENTERED BY THE AGENCY THERE THEN EXISTED SUFFICIENT FACTS TO JUSTIFY
THE SAME.  WHETHER THE AGENCY HEARD SUFFICIENT EVIDENCE IS NOT
MATERIAL."  SEE ALSO COOK DRILLING CO. V. GULF OIL CORP., 139 TEX. 80,
161 S.W.2D 1035, DECIDED THE SAME DAY. 

IN OTHER WORDS, AS THE CIRCUIT COURT OF APPEALS HAS SAID IN THIS
CASE, "WE NOW KNOW THE LEGAL REQUISITES OF ORDERS AND REGULATIONS OF
THE RAILROAD COMMISSION UNDER THE CONSERVATION LAWS OF TEXAS.  ...
WHETHER THE COMMISSION HEARD EVIDENCE OR NOT IS IMMATERIAL; IT IS NOT
REQUIRED TO TAKE TESTIMONY OR MAKE FINDINGS OF FACT BEFORE PROMULGATING
ITS ORDERS.  SUCH PROCEDURE IS FOREIGN TO THE LAW OF TEXAS, ALTHOUGH
CUSTOMARY UNDER FEDERAL STATUTES.  IF THE FACTS IN EXISTENCE WHEN THE
ORDER WAS MADE, AS LATER SHOWN BY EVIDENCE BEFORE THE COURT, WERE SUCH
THAT REASONABLE MINDS COULD NOT HAVE REACHED THE CONCLUSION ARRIVED AT
BY THE COMMISSION, OR IF THE AGENCY EXCEEDED ITS POWER, THEN THE ORDER
SHOULD BE SET ASIDE BY ANY COURT OF COMPETENT JURISDICTION."  130 F.2D
10, 14-15. 

CLEARLY, THEREFORE, THE SCOPE OF JUDICAL REVIEW IN A RULE 37 CASE, AS
DECLARED BY THE SUPREME COURT OF TEXAS, IS PRECISELY AS WELL DEFINED,
FOR EXAMPLE, AS THE SCOPE OF JUDICIAL REVIEW BY THE FEDERAL COURTS OF
ORDERS OF THE INTERSTATE COMMERCE COMMISSION OR THE NATIONAL LABOR
RELATIONS BOARD.  THAT THE SCOPE OF REVIEW MAY BE DIFFERENT DOES NOT
MAKE THE STANDARDS OF REVIEW ANY LESS DEFINITE OR LESS SUSCEPTIBLE OF
APPLICATION BY A COURT.  I THINK THERE CAN BE NO DOUBT THAT UNDER THE
CONSTITUTION AND LAWS OF TEXAS, AS CONSTRUED BY THE DECISIONS OF THE
STATE COURTS, SUCH COURTS EXERCISE A JUDICIAL POWER IN THESE CASES
PRECISELY SIMILAR TO THAT WIELDED BY THE FEDERAL COURTS UNDER ARTICLE
III.  CAN IT BE SAID, THEREFORE, THAT IN CONSIDERING THE VALIDITY OF AN
EXCEPTION ALLOWED BY THE TEXAS RAILROAD COMMISSION UNDER RULE 37, THE
FEDERAL JUDGES SITTING IN THAT STATE ARE ENGAGED IN DUTIES WHICH ARE
FOREIGN TO THEIR EXPERIENCE AND ABILITIES?  JUDGES WHO SIT IN JUDGMENT
UPON THE LEGALITY OF ORDERS MADE BY THE INTERSTATE COMMERCE COMMISSION
ARE CERTAINLY NOT INCOMPETENT TO APPLY THE NARROWLY DEFINED STANDARDS
OF LAW ESTABLISHED BY TEXAS FOR REVIEW OF THE ORDERS OF ITS RAILROAD
COMMISSION.    WE COME, THEN, TO THE QUESTION WHETHER TEXAS HAS
MANIFESTED ANY DESIRE TO CONFINE SUCH REVIEW TO THE STATE COURTS
SITTING IN TRAVIS COUNTY.  A LITTLE HISTORY WILL GO A LONG WAY IN
ANSWERING THIS QUESTION.  ON APRIL 3, 1891, THE TEXAS LEGISLATURE
ENACTED A STATUTE CREATING THE TEXAS RAILROAD COMMISSION.  SECTION 6
PROVIDED THAT SUITS TO SET ASIDE COMMISSION ORDERS COULD BE BROUGHT "IN
A COURT OF COMPETENT JURISDICTION IN TRAVIS COUNTY, TEXAS."  AND,
NATURALLY ENOUGH, THE QUESTION SOON AROSE WHETHER THIS PROVISION
PREVENTED REVIEW IN THE FEDERAL COURT SITTING IN TRAVIS COUNTY.  ALMOST
FIFTY YEARS AGO THERE CAME BEFORE THIS COURT A MEMORABLE LITIGATION IN
WHICH THE MEANING AND PURPOSE OF THE PROVISION WERE THOROUGHLY
CANVASSED.  IN REAGAN V. FARMERS' LOAN & TRUST CO., 154 U.S. 362, 391
92, DECIDED MAY 26, 1894, THIS COURT UNANIMOUSLY HELD THAT "IT MAY BE
LAID DOWN AS A GENERAL PROPOSITION THAT, WHENEVER A CITIZEN OF A STATE
CAN GO INTO THE COURTS OF A STATE TO DEFEND HIS PROPERTY AGAINST THE
ILLEGAL ACTS OF ITS OFFICERS, A CITIZEN OF ANOTHER STATE MAY INVOKE THE
JURISDICTION OF THE FEDERAL COURTS TO MAINTAIN A LIKE DEFENCE.  A STATE
CANNOT TIE UP A CITIZEN OF ANOTHER STATE, HAVING PROPERTY RIGHTS WITHIN
ITS TERRITORY INVADED BY UNAUTHORIZED ACTS OF ITS OWN OFFICERS, TO
SUITS FOR REDRESS IN ITS OWN COURTS.  ...  WE NEED NOT, HOWEVER, REST
ON THE GENERAL POWERS OF A FEDERAL COURT IN THIS RESPECT, FOR IN THE
ACT BEFORE US EXPRESS AUTHORITY IS GIVEN FOR A SUIT AGAINST THE
COMMISSION  ...  THE LANGUAGE OF THIS PROVISION (SEC. 6 OF THE 1891
STATUTE) IS SIGNIFICANT.  IT DOES NOT NAME THE COURT IN WHICH THE SUIT
MAY BE BROUGHT.  IT IS NOT A COURT OF TRAVIS COUNTY, BUT IN TRAVIS
COUNTY.  THE LANGUAGE DIFFERING FROM THAT WHICH ORDINARILY WOULD BE
USED TO DESCRIBE A COURT OF THE STATE WAS SELECTED APPARENTLY IN ORDER
TO AVOID THE OBJECTION OF AN ATTEMPT TO PREVENT THE JURISDICTION OF THE
FEDERAL COURTS." 

FOR ALMOST FIFTY YEARS THE HOLDING IN THE REAGAN CASE HAS NOT BEEN
QUESTIONED.  ON THE CONTRARY, IT HAS ALWAYS BEEN TAKEN FOR GRANTED THAT
THE DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS IS "A COURT OF
COMPETENT JURISDICTION IN TRAVIS COUNTY" AND A SUITABLE FORUM IN WHICH
TO CHALLENGE THE VALIDITY OF ORDERS OF THE TEXAS RAILROAD COMMISSION. 
ONE NEED ONLY LOOK AT THE TABLES OF CASES IN BOTH THE LOWER FEDERAL
COURTS AND IN THIS COURT TO OBTAIN A SENSE OF THE SOLIDITY OF THIS
EXERCISE OF JURISDICTION.  SECTION 8 OF ARTICLE 6049C, THE TEXAS
LEGISLATION IMMEDIATELY BEFORE US, WAS ORIGINALLY ENACTED IN 1932.  THE
TEXAS LEGISLATURE MIGHT EXPRESSLY HAVE SOUGHT TO RESTRICT JUDICIAL
PROCEEDINGS WITH RESPECT TO COMMISSION ORDERS TO THE STATE COURTS OF
TRAVIS COUNTY.  THIS IT HAS DONE IN OTHER SITUATIONS.  SEE E.G., ART.
911E, SEC. 10 OF VERNON'S REVISED CIVIL STATUTES, 1925(APPEAL BY
APPLICANT FOR TRANSPORTATION AGENT'S LICENSE FROM DENIAL OF APPLICATION
BY RAILROAD COMMISSION); ART. 3286(SUITS BY HEIRS OR CLAIMANTS TO
ESCHEATED LANDS); ART. 5032(APPEALS FROM REVOCATION OR SUSPENSION OF
AUTHORITY WITH RESPECT TO RECIPROCAL INSURANCE); ART. 8307, SEC.
7(SUITS TO RECOVER PENALTIES FROM EMPLOYERS FAILING TO REPORT INJURIES
UNDER WORKMEN'S COMPENSATION LAW).  IN THESE STATUTORY PROVISIONS
JURISDICTION IS SPECIFICALLY LIMITED TO THE "DISTRICT COURT IN TRAVIS
COUNTY, TEXAS," THE STATE COURT.  BUT IN ARTICLE 6049C THE TEXAS
LEGISLATURE USED THE PHRASE "IN A COURT OF COMPETENT JURISDICTION IN
TRAVIS COUNTY," PRECISELY THE SAME AS THAT WHICH HAD BEEN CONSTRUED BY
THIS COURT IN THE REAGAN CASE.  HOW, THEN, CAN IT BE FAIRLY SAID THAT
THE TEXAS LEGISLATURE MEANT TO EXCLUDE THE FEDERAL COURTS FROM
EXERCISING JURISDICTION IN THESE CASES? 

AND SO, THE CASE REALLY REDUCES ITSELF TO THIS:  IN THE ACTUAL
APPLICATION OF THE STANDARDS GOVERNING JUDICIAL REVIEW OF COMMISSION
ORDERS ALLOWING EXCEPTIONS UNDER RULE 37 - STANDARDS WHICH TODAY HAVE
BEEN AUTHORITATIVELY AND PRECISELY DEFINED - A DIFFERENT RESULT MAY BE
OBTAINED IF SUIT IS BROUGHT IN THE FEDERAL RATHER THAN THE STATE
COURTS.  AND WHY?  BECAUSE FEDERAL JUDGES ARE LESS COMPETENT AND LESS
FAIR THAN STATE JUDGES IN APPLYING THE RULES THAT ARE BINDING UPON
BOTH?  IF THIS WERE TRUE HERE, IT WOULD BE EQUALLY TRUE AS APPLIED TO
ALMOST ALL TYPES OF LITIGATION BROUGHT INTO FEDERAL COURTS TO ENFORCE
STATE-CREATED RIGHTS.  THE EXPLANATION MAY PERHAPS LIE IN THE REALM OF
WHAT HAS SOMETIMES BEEN CALLED "PSYCHOLOGICAL JURISPRUDENCE."  IN THE
ASSESSMENT OF EVIDENCE AND THE OTHER ELEMENTS WHICH ENTER INTO A
JUDICIAL JUDGMENT, A FEDERAL JUDGE MAY MAKE JUDGMENTS DIFFERENT FROM
THOSE WHICH A STATE JUDGE MAY MAKE.  FEDERAL JUDGES ARE PERHAPS TO BE
REGARDED AS MEN APART - JUDGES WHO CANNOT BE TRUSTED TO JUDGE FAIRLY
AND IMPARTIALLY.  BUT IF THIS BE OUR PREMISE, WHY SHOULD IT NOT FOLLOW
THAT THE FEDERAL COURTS ARE, BECAUSE OF THEIR PUTATIVE BIAS, TO BE
DENIED THE RIGHT TO HEAR INSURANCE CASES, OR CASES INVOLVING
CONTROVERSIES BETWEEN DEBTORS AND CREDITORS, LANDLORDS AND TENANTS,
EMPLOYERS AND EMPLOYEES, AND ALL THE OTHER COMPLICATED CONTROVERSIES
ARISING OUT OF THE LOCAL LAW OF THE FORTY-EIGHT STATES? 

IT IS THE ESSENCE OF DIVERSITY JURISDICTION THAT FEDERAL JUDGES AND
JURIES SHOULD PASS ON ASSERTED CLAIMS BECAUSE THE RESULT MIGHT BE
DIFFERENT IF THEY WERE DECIDED BY A STATE COURT.  THERE MAY BE
EXCELLENT REASONS WHY CONGRESS SHOULD ABOLISH DIVERSITY JURISDICTION. 
BUT, WITH ALL DEFERENCE, IT IS NOT A DEFENSIBLE GROUND FOR HAVING THIS
COURT BY INDIRECTION ABROGATE DIVERSITY JURISDICTION WHEN, AS A MATTER
OF FACT, CONGRESS HAS PERSISTENTLY REFUSED TO RESTRICT SUCH
JURISDICTION EXCEPT IN THE LIMITED AREA OCCUPIED BY THE JOHNSON ACT. 
THE CONGRESSIONAL PREMISE OF DIVERSITY JURISDICTION IS THAT THE
POSSIBILITY OF UNFAIRNESS AGAINST OUTSIDE LITIGANTS IS TO BE AVOIDED BY
PROVIDING THE NEUTRAL FORUM OF A FEDERAL COURT.  THE COURT TODAY IS IN
EFFECT WITHDRAWING THIS GRANT OF JURISDICTION IN ORDER TO AVOID
POSSIBLE UNFAIRNESS AGAINST STATE INTERESTS IN THE FEDERAL COURTS. 
THAT WHICH CONGRESS CREATED TO ASSURE IMPARTIALITY OF ADJUDICATION IS
NOW DESTROYED TO PREVENT WHAT IS DEEMED TO BE HOSTILITY AND BIAS IN
ADJUDICATION. 

OF COURSE, THE USUAL CONSIDERATIONS GOVERNING THE EXERCISE OF EQUITY
JURISDICTION ARE EQUALLY APPLICABLE TO SUITS IN THE FEDERAL COURTS
WHERE JURISDICTION DEPENDS UPON THE DIVERSITY OF THE PARTIES'
CITIZENSHIP.  THE CHANCELLOR CERTAINLY MUST BALANCE THE EQUITIES BEFORE
GRANTING RELIEF; HE SHOULD STAY HIS HAND WHERE ANOTHER COURT SEIZED OF
THE CONTROVERSY CAN DO JUSTICE TO THE CLAIMS OF THE PARTIES; HE MAY
REFUSE EQUITABLE RELIEF WHERE THE ASSERTED RIGHT IS DOUBTFUL BECAUSE OF
THE SUBSTANTIVE LAW WHICH HE MUST FIND AS DECLARED BY THE STATE.  BUT
IT IS TOO LATE IN THE DAY TO SUGGEST THAT THE CHANCELLOR MAY ACT ON
WHIMSICAL OR PURELY PERSONAL CONSIDERATIONS OR ON PRIVATE NOTIONS OF
POLICY REGARDING THE PARTICULAR SUIT.  IT IS NOT FOR US TO SAY THAT
LITIGATION AFFECTING STATE LAWS AND STATE POLICIES OUGHT TO BE TRIED
ONLY IN THE STATE COURTS.  CONGRESS HAS CHOSEN TO CONFER DIVERSITY
JURISDICTION UPON THE FEDERAL COURTS.  IT IS NOT FOR US TO REJECT THAT
WHICH CONGRESS HAS MADE THE LAW OF THE LAND SIMPLY BECAUSE OF OUR
INDEPENDENT CONVICTION THAT SUCH LEGISLATION IS UNWISE. 

THIS IS NOT JUST AN ISOLATED CASE.  TO ORDER THE DISMISSAL OF THIS
LITIGATION, ON THIS RECORD AND IN THE PRESENT STATE OF TEXAS LAW, IS
NOT MERELY TO DECIDE THAT THE FEDERAL COURT IN TRAVIS COUNTY, TEXAS,
SHOULD NO LONGER ENTERTAIN SUITS BROUGHT UNDER THE TEXAS CONSERVATION
LAWS.  WE ARE HOLDING, IN EFFECT, THAT THE ENFORCEMENT OF STATE RIGHTS
CREATED BY STATE LEGISLATION AND AFFECTING STATE POLICIES IS LIMITED TO
THE STATE COURTS.  IT MEANS, CANDIDLY, THAT WE SHOULD REEXAMINE ALL OF
THE CASES - AND THERE HAVE BEEN MANY - SINCE THE REAGAN DECISION ALMOST
HALF A CENTURY AGO.  DO WE NOT OWE IT TO THE LOWER FEDERAL COURTS, FOR
EXAMPLE, TO TELL THEM WHERE A CASE LIKE TEXAS PIPE LINE CO. V. WARE, 15
F.2D 171, NOW STANDS?  IN THAT CASE THE FEDERAL COURT ENTERTAINED A
SUIT TO ENFORCE RIGHTS ARISING UNDER A STATE WORKMEN'S COMPENSATION
LAW.  WOULD IT BE ERROR FOR A FEDERAL JUDGE TO DO SO TODAY?  SEE, ALSO,
LANE V. WILSON, 307 U.S. 268. 

PERHAPS NO JUDICIAL ACTION CALLS FOR A MORE CAUTIOUS EXERCISE OF
DISCRETION THAN THE APPOINTMENT OF A RECEIVER BY A COURT OF EQUITY,
ESPECIALLY WHERE THE ENTERPRISE TO BE ADMINISTERED RELATES TO IMPORTANT
PUBLIC INTERESTS.  SUCH A SITUATION WAS PRESENTED TO THIS COURT IN
PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, IN WHICH - SOLELY ON THE SCORE
OF DIVERSITY OF CITIZENSHIP - A FEDERAL COURT WAS ASKED TO ASSUME THE
MANAGEMENT OF A PENNSYLVANIA BUILDING AND LOAN ASSOCIATION.  THE
PROBLEM BEFORE THIS COURT WAS NOT WHETHER THE CONTROVERSY SHOULD BE
ADJUDICATED BY A FEDERAL RATHER THAN A STATE COURT, BUT WHETHER, AS A
MATTER OF SOUND JUDICIAL ADMINISTRATION, A COURT OF EQUITY SHOULD TAKE
HOLD OF THE AFFAIRS OF THE ASSOCIATION BY PUTTING A JUDICIAL OFFICER IN
CHARGE WHEN IN FACT THE STATE HAD ESTABLISHED AN ADMINISTRATIVE SYSTEM
WHEREBY "THE DUTY OF SUPERVISING ITS OWN BUILDING AND LOAN ASSOCIATIONS
AND OF LIQUIDATING THEM BY AN ADEQUATE PROCEDURE WHEN INSOLVENT," 294
U.S. AT 184, WAS ENTRUSTED TO A PERMANENT, EXPERIENCED STATE AGENCY. 
THE QUESTION WAS NOT AT ALL WHETHER A FEDERAL COURT SHOULD ABDICATE ITS
AUTHORITY IN FAVOR OF A STATE COURT WHERE THE RULES OF LAW WHICH WOULD
GOVERN A SUIT IN A STATE COURT WOULD BE PRECISELY THE SAME AS THOSE
WHICH A FEDERAL COURT WOULD BE BOUND TO APPLY.  THE WILLIAMS CASE, IN
OTHER WORDS, IS BUT AN APPLICATION OF THE TRADITIONAL DOCTRINE THAT A
COURT OF EQUITY SHOULD STAY ITS HAND FROM THE IMPROVIDENT APPOINTMENT
OF A RECEIVER. 

TO TALK ABOUT COURTS AS "WORKING PARTNERS" WITH ADMINISTRATIVE
AGENCIES WHENEVER THERE IS JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IS
MERELY ANOTHER WAY OF SAYING THAT LEGISLATIVE POLICIES ARE ENFORCED
PARTLY THROUGH ADMINISTRATIVE AGENCIES AND PARTLY THROUGH COURTS.  SEE
UNITED STATES V. MORGAN, 307 U.S. 183, 191.  BUT THE USE OF SUCH
COLLOQUIAL EXPRESSIONS CAN HARDLY OBLITERATE THE DISTINCTION BETWEEN
JUDICIAL POWER AND LEGISLATIVE POWER, WHETHER THE LATTER BE EXERCISED
DIRECTLY BY THE LEGISLATURE OR INDIRECTLY THROUGH ITS ADMINISTRATIVE
AGENCIES.  THE COURTS OF TEXAS SIT IN JUDGMENT UPON THE RAILROAD
COMMISSION OF TEXAS ONLY IN SO FAR AS THEY HAVE BEEN CHARGED BY TEXAS
LAW WITH THE DUTY OF ASCERTAINING THE VALIDITY OF COMMISSION ACTION. 
THEY NO MORE "PARTICIPATE IN THE FASHIONING OF THE STATE'S DOMESTIC
POLICY" THAN THE FEDERAL COURTS PARTICIPATE IN THE FASHIONING OF THE
TRANSPORTATION POLICY OF THE FEDERAL GOVERNMENT IN REVIEWING ORDERS OF
THE INTERSTATE COMMERCE COMMISSION UNDER THE URGENT DEFICIENCIES ACT,
38 STAT. 219, 28 U.S.C. SEC. 47. 

THEREFORE, UNLESS ALL FUNCTIONS OF COURTS HERETOFORE DEEMED TO BE
JUDICIAL IN NATURE EVEN THOUGH THEY INVOLVE APPROPRIATELY DEFINED
REVIEW OF ACTIONS TAKEN BY ADMINISTRATIVE AGENCIES ARE NOW TO BE DEEMED
ADMINISTRATIVE IN NATURE, THE CIRCUMSTANCE THAT A RIGHT ASSERTED BEFORE
A COURT ARISES FROM A CONTROVERSY THAT ORIGINATED BEFORE AN
ADMINISTRATIVE AGENCY CANNOT ALTER EITHER THE NATURE OF THE POWER BEING
EXERCISED BY THE COURT OR ITS CAPACITY TO ENTERTAIN JURISDICTION.  ONE
MIGHT CHOOSE, FOR EXAMPLE, TO DESCRIBE THIS COURT AS THE "WORKING
PARTNER" OF THE SECURITIES AND EXCHANGE COMMISSION, THE COMPTROLLER OF
THE CURRENCY, THE COMMISSIONER OF INTERNAL REVENUE, AND THE SCORE OF
OTHER ADMINISTRATIVE BODIES THE VALIDITY OF WHOSE ACTIONS FREQUENTLY
COMES HERE FOR REVIEW.  BUT SUCH A CHARACTERIZATION OF OUR ROLE IN
REVIEWING ADMINISTRATIVE ORDERS DOES NOT MAKE THIS EXERCISE OF OUR
POWER ANY THE LESS JUDICIAL OR ANY THE MORE ADMINISTRATIVE.  NOR SHOULD
IT BE ADEQUATE TO WIPE OUT A DISTINCTION THAT IS SO EMBEDDED IN OUR
CONSTITUTIONAL HISTORY AND PRACTICE. 

THE OPINION OF THE COURT CUTS DEEP INTO OUR JUDICIAL FABRIC.  THE
DUTY OF THE JUDICIARY IS TO EXERCISE THE JURISDICTION WHICH CONGRESS
HAS CONFERRED.  WHAT THE COURT IS DOING TODAY I MIGHT WHOLEHEARTEDLY
APPROVE IF IT WERE DONE BY CONGRESS.  BUT I CANNOT JUSTIFY TRANSLATION
OF THE CIRCUMSTANCE OF MY MEMBERSHIP ON THIS COURT INTO AN OPPORTUNITY
OF WRITING MY PRIVATE VIEW OF LEGISLATIVE POLICY INTO LAW AND THEREBY
EFFACING A FAR GREATER AREA OF DIVERSITY JURISDICTION THAN SENATOR
NORRIS, AS CHAIRMAN OF THE SENATE JUDICIARY COMMITTEE, WAS EVER ABLE TO
PERSUADE CONGRESS ITSELF TO DO. 

FN1  THE JOHNSON ACT PROVIDES THAT NO DISTRICT COURT CAN ENJOIN THE
ENFORCEMENT OF ANY ORDER ISSUED BY A STATE ADMINISTRATIVE BODY WHERE
THE JURISDICTION OF THE COURT "IS BASED SOLELY UPON THE GROUND OF
DIVERSITY OF CITIZENSHIP, OR THE REPUGNANCE OF SUCH ORDER TO THE
CONSTITUTION OF THE UNITED STATES," AND "WHERE SUCH ORDER (1) AFFECTS
RATES CHARGEABLE BY A PUBLIC UTILITY, (2) DOES NOT INTERFERE WITH
INTERSTATE COMMERCE, AND (3) HAS BEEN MADE AFTER REASONABLE NOTICE AND
HEARING, AND WHERE A PLAIN, SPEEDY, AND EFFICIENT REMEDY MAY BE HAD AT
LAW OR IN EQUITY IN THE COURTS OF SUCH STATE." 

SINCE THE ORDER UNDER REVIEW IN THIS CASE DID NOT IN ANY WAY AFFECT
RATES CHARGEABLE BY ANY PUBLIC UTILITY, THE JOHNSON ACT IS
INAPPLICABLE. 

MR. JUSTICE ROBERTS AND MR. JUSTICE REED JOIN IN THIS DISSENT. 

THE CHIEF JUSTICE EXPRESSES NO VIEWS AS TO THE DESIRABILITY, AS A
MATTER OF LEGISLATIVE POLICY, OF RETAINING THE DIVERSITY JURISDICTION. 
IN ALL OTHER RESPECTS H
..END :























HASTINGS V. SELBY OIL CO., 319 U.S. 348 


NO. 528.  ARGUED FEBRUARY 9, 1943.  REARGUED APRIL 15, 1943.  - DECIDED
MAY 24, 1943.  - REVERSED AND ORDERED DISMISSED. 


DECIDED ON THE AUTHORITY OF BURFORD V. SUN OIL CO., ANTE, P. 315. 

HASTINGS ET AL. V. SELBY OIL & GAS CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 317 U.S. 621, TO REVIEW A JUDGMENT OF THE DISTRICT COURT
ENJOINING THE ENFORCEMENT OF AN ORDER OF THE RAILROAD COMMISSION OF
TEXAS PERMITTING TWO OF THE DEFENDANTS TO DRILL FOR AND EXTRACT OIL AND
GAS ON A SMALL TRACT OF LAND IN THE EAST TEXAS OIL FIELD. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION IN THE NATURE OF AN EQUITY PROCEEDING BROUGHT BY
THE RESPONDENTS TO CANCEL AN ORDER OF THE TEXAS RAILROAD COMMISSION
GRANTING PETITIONERS HASTINGS AND DODSON A PERMIT UNDER RULE 37 OF THE
RAILROAD COMMISSION TO DRILL AN OIL WELL.  THE RESPONDENTS CONTEND THAT
THE ORDER GRANTING A PERMIT TO THE PETITIONERS DEPRIVES THEM OF
PROPERTY WITHOUT DUE PROCESS OF LAW, AND THAT THE ORDER IS INVALID AS A
MATTER OF TEXAS LAW.  JURISDICTION IS RESTED ON DIVERSITY OF
CITIZENSHIP. 

THERE ARE NO SIGNIFICANT DIFFERENCES BETWEEN THE PROBLEMS PRESENTED
HERE AND THOSE IN BURFORD V. SUN OIL CO., ANTE, P. 315.  FOR THE
REASONS SET FORTH IN THAT OPINION, THE DECISION BELOW IS REVERSED AND
THE CAUSE IS REMANDED WITH INSTRUCTIONS TO DISMISS THE COMPLAINT.  IT
IS SO ORDERED. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, MR. JUSTICE REED, AND MR.
JUSTICE FRANKFURTER DISSENT FOR THE REASONS STATED BY THEM IN DISSENT
TO BURFORD V. SUN OIL CO., ANTE, P. 315. 
..END :















BAILEY V. CENTRAL VERMONT RY., 319 U.S. 350 


NO. 640.  ARGUED APRIL 13, 1943.  - DECIDED MAY 24, 1943.  - 113 VT. 8,
28 A.2D 639, REVERSED. 


IN THIS SUIT UNDER THE FEDERAL EMPLOYERS LIABILITY ACT, BROUGHT IN A
STATE COURT AGAINST A CARRIER TO RECOVER DAMAGES FOR THE DEATH OF AN
EMPLOYEE, THE EVIDENCE WAS SUFFICIENT TO GO TO THE JURY ON THE QUESTION
WHETHER, AS ALLEGED IN THE COMPLAINT, THE DEFENDANT WAS NEGLIGENT IN
FAILING TO USE REASONABLE CARE TO FURNISH THE EMPLOYEE A SAFE PLACE TO
WORK.  P. 354. 

BAILEY, ADMINISTRATRIX, V. CENTRAL VERMONT RAILWAY, INC. 

CERTIORARI TO THE SUPREME COURT OF VERMONT. 

CERTIORARI, 318 U.S. 751, TO REVIEW THE REVERSAL OF A JUDGMENT UPON A
VERDICT FOR THE PLAINTIFF IN A SUIT UNDER THE FEDERAL EMPLOYERS
LIABILITY ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT UNDER THE FEDERAL EMPLOYERS LIABILITY ACT (45
U.S.C. SEC. 51) IN THE STATE COURTS OF VERMONT TO RECOVER DAMAGES FOR
THE DEATH OF BERNARD E. BAILEY, ONE OF RESPONDENT'S EMPLOYEES.  AT THE
CLOSE OF ALL THE EVIDENCE RESPONDENT MOVED FOR A DIRECTED VERDICT.  THE
COURT DENIED THE MOTION AND SUBMITTED THE CASE TO THE JURY WHICH
RETURNED A VERDICT FOR PETITIONER.  ON APPEAL THE SUPREME COURT OF
VERMONT REVERSED, BY A DIVIDED VOTE, HOLDING THAT THE MOTION FOR A
DIRECTED VERDICT SHOULD HAVE BEEN GRANTED BECAUSE NEGLIGENCE WAS NOT
SHOWN.  113 VT. 8, 28 A.2D 639.  THE CASE IS HERE ON CERTIORARI. 

BAILEY HAD WORKED FOR RESPONDENT AS A SECTIONMAN FOR ABOUT FIVE
YEARS.  ON THE DAY IN QUESTION - MAY 14, 1940 - HE WENT TO WORK ON A
WORK TRAIN TO A POINT ON THE ROAD IN WILLISTON, VT., WHERE HE AND OTHER
MEMBERS OF THE CREW UNLOADED TRACK MATERIAL TO BE USED ON THE ROADBED. 
INSTRUCTIONS WERE THEN RECEIVED TO UNLOAD A CAR FILLED WITH CINDERS. 
THE EVIDENCE OF THE ACCIDENT VIEWED IN A LIGHT FAVORABLE TO PETITIONER
WAS AS FOLLOWS: 

THE CAR WAS PULLED ONTO A BRIDGE OVER A CATTLE PASS SO THAT THE
CINDERS COULD BE DUMPED THROUGH THE TIES IN THE BRIDGE FLOOR ONTO THE
ROADWAY BELOW.  THE FLOOR OF THE BRIDGE WAS ABOUT 18 FEET ABOVE THE
GROUND.  THE ONLY AVAILABLE FOOTING AT THE SIDE OF THE CAR WAS ABOUT 12
INCHES WIDE.  OF THIS SPACE 8 OR 9 INCHES WERE TAKEN UP BY A RAISED
STRINGER, I.E., A TIMBER WHICH LAY ACROSS THE TIES AND WAS SET IN 3 OR
4 INCHES FROM THEIR ENDS.  THERE WAS NO GUARD RAIL.  THE CINDERS TO BE
UNLOADED WERE IN A HOPPER CAR.  THAT TYPE OF CAR HAS DOORS IN THE FLOOR
WHICH ARE CLOSED BY A CHAIN WHICH WINDS UP ON A SHAFT RUNNING CROSSWAYS
OF THE CAR.  THE DOORS ARE OPENED FROM THE SIDE BY ONE MAN TURNING A
NUT ON THE END OF THE SHAFT WHILE ANOTHER DISENGAGES FROM A RATCHET A
DOG WHICH HOLDS THE SHAFT.  A WRENCH IS APPLIED TO THE NUT AT THE END
OF THE SHAFT, THE OPERATOR PULLS ITS HANDLE BACK TO RELIEVE THE TENSION
ON THE DOG, THE OTHER PERSON RELEASES THE DOG, THE OPERATOR OF THE
WRENCH PUSHES BACK ON IT TO OPEN THE HOPPER, AND THE WEIGHT OF THE
MATERIAL IN THE CAR OPENS THE DOORS.  WHEN THE HOPPER STARTS TO OPEN,
THE SHAFT SPINS, AND THE OPERATOR MUST DISENGAGE THE WRENCH OR LET GO
OF IT, LEST HE BE THROWN OFF BALANCE OR KNOCKED DOWN.  THE WRENCH USED
BY BAILEY WAS A HEAVY FROG WRENCH - OPEN JAWS AND A HANDLE ABOUT THREE
FEET LONG.  IT HAD BEEN USED FOR MANY YEARS FOR THAT PURPOSE AND NO ONE
HAD BEEN INJURED BY IT.  BAILEY CERTAINLY WAS UNSKILLED AND PERHAPS
UNFAMILIAR IN THE OPENING OF HOPPER CARS.  NO ONE HAD EVER SEEN HIM
OPEN ONE.  SUCH AN OPERATION WAS USUALLY PERFORMED BY MEN OLDER IN
POINT OF SERVICE.  BAILEY HAD BEEN PRESENT ON A FEW OCCASIONS WHEN
HOPPER CARS WERE UNLOADED BUT USUALLY HE WAS ON TOP OF THE CAR AT THE
TIME.  CINDERS WERE DUMPED AT THIS BRIDGE ABOUT ONCE A YEAR.  AS BAILEY
WALKED OUT ON THE STRINGER ON THE BRIDGE AND PUT THE WRENCH ON THE NUT,
THE SECTION FOREMAN SAID, "BE CAREFUL THE WRENCH DOESN'T CATCH YOU." 
BAILEY AT ONCE PUSHED ON THE WRENCH BUT THE HOPPER DID NOT OPEN; HE
GAVE ANOTHER PUSH ON THE WRENCH, THE HOPPER OPENED, THE NUT SPUN, AND
BAILEY WAS THROWN BY THE WRENCH INTO THE ROADWAY BELOW.  THE HOPPER CAR
COULD HAVE BEEN OPENED BEFORE IT WAS MOVED ONTO THE BRIDGE AND ANY
CINDERS WHICH SPILLED ON THE ROADBED SHOVELED ONTO THE ROADWAY BENEATH
THE BRIDGE.  OR AFTER THE CINDERS HAD BEEN DUMPED UPON THE ROADBED A
RAILROAD TIE COULD HAVE BEEN UTILIZED AS A DRAG TO PUSH CINDERS FROM
THE ROADBED TO THE GROUND BELOW THE BRIDGE. 

BAILEY DIED FROM THE INJURIES RESULTING FROM THE FALL. 

THERE WAS IN OUR VIEW SUFFICIENT EVIDENCE TO GO TO THE JURY ON THE
QUESTION WHETHER, AS ALLEGED IN THE COMPLAINT, RESPONDENT WAS NEGLIGENT
IN FAILING TO USE REASONABLE CARE IN FURNISHING BAILEY WITH A SAFE
PLACE TO DO THE WORK. 

SEC. 1 OF THE ACT MAKES THE CARRIER LIABLE IN DAMAGES FOR ANY INJURY
OR DEATH "RESULTING IN WHOLE OR IN PART FROM THE NEGLIGENCE" OF ANY OF
ITS "OFFICERS, AGENTS, OR EMPLOYEES."  THE RIGHTS WHICH THE ACT CREATES
ARE FEDERAL RIGHTS PROTECTED BY FEDERAL RATHER THAN LOCAL RULES OF
LAW.  SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1; SEABOARD AIR LINE
RY. V. HORTON, 233 U.S. 492; CHESAPEAKE & OHIO RY. CO. V. KUHN, 284
U.S. 44.  AND THOSE FEDERAL RULES HAVE BEEN LARGELY FASHIONED FROM THE
COMMON LAW (SEABOARD AIR LINE RY. V. HORTON, SUPRA) EXCEPT AS CONGRESS
HAS WRITTEN INTO THE ACT DIFFERENT STANDARDS.  TILLER V. ATLANTIC COAST
LINE R. CO., 318 U.S. 54.  AT COMMON LAW THE DUTY OF THE EMPLOYER TO
USE REASONABLE CARE IN FURNISHING HIS EMPLOYEES WITH A SAFE PLACE TO
WORK WAS PLAIN.  3 LABATT, MASTER & SERVANT (2D ED.)  SEC.  917.  THAT
RULE IS DEEPLY ENGRAINED IN FEDERAL JURISPRUDENCE.  PATTON V. TEXAS &
PACIFIC RY. CO., 179 U.S. 658, 664, AND CASES CITED; KREIGH V.
WESTINGHOUSE & CO., 214 U.S. 249, 256, 257; KENMONT COAL CO. V. PATTON,
268 F. 334, 336.  AS STATED BY THIS COURT IN THE PATTON CASE, IT IS A
DUTY WHICH BECOMES "MORE IMPERATIVE" AS THE RISK INCREASES. 
"REASONABLE CARE BECOMES THEN A DEMAND OF HIGHER SUPREMACY, AND YET IN
ALL CASES IT IS A QUESTION OF THE REASONABLENESS OF THE CARE -
REASONABLENESS DEPENDING UPON THE DANGER ATTENDING THE PLACE OR THE
MACHINERY."  179 U.S. P. 664.  IT IS THAT RULE WHICH OBTAINS UNDER THE
EMPLOYERS LIABILITY ACT.  SEE COAL & COKE RY. CO. V. DEAL, 231 F. 604;
NORTHWESTERN PACIFIC R. CO. V. FIEDLER, 52 F.2D 400; THOMSON V. BOLES,
123 F.2D 487; 2 ROBERTS, FEDERAL LIABILITIES OF CARRIERS (2D ED.) 
SEC.  807.  THAT DUTY OF THE CARRIER IS A "CONTINUING ONE" (KREIGH V.
WESTINGHOUSE & CO., SUPRA, P. 256) FROM WHICH THE CARRIER IS NOT
RELIEVED BY THE FACT THAT THE EMPLOYEE'S WORK AT THE PLACE IN QUESTION
IS FLEETING OR INFREQUENT. 

THE NATURE OF THE TASK WHICH BAILEY UNDERTOOK, THE HAZARDS WHICH IT
ENTAILED, THE EFFORT WHICH IT REQUIRED, THE KIND OF FOOTING HE HAD, THE
SPACE IN WHICH HE COULD STAND, THE ABSENCE OF A GUARD RAIL, THE HEIGHT
OF THE BRIDGE ABOVE THE GROUND, THE FACT THAT THE CAR COULD HAVE BEEN
OPENED OR UNLOADED NEAR THE BRIDGE ON LEVEL GROUND - ALL THESE WERE
FACTS AND CIRCUMSTANCES FOR THE JURY TO WEIGH AND APPRAISE IN
DETERMINING WHETHER RESPONDENT IN FURNISHING BAILEY WITH THAT
PARTICULAR PLACE IN WHICH TO PERFORM THE TASK WAS NEGLIGENT.  THE
DEBATABLE QUALITY OF THAT ISSUE, THE FACT THAT FAIR-MINDED MEN MIGHT
REACH DIFFERENT CONCLUSIONS, EMPHASIZE THE APPROPRIATENESS OF LEAVING
THE QUESTION TO THE JURY.  THE JURY IS THE TRIBUNAL UNDER OUR LEGAL
SYSTEM TO DECIDE THAT TYPE OF ISSUE (TILLER V. ATLANTIC COAST LINE R.
CO., SUPRA) AS WELL AS ISSUES INVOLVING CONTROVERTED EVIDENCE.  JONES
V. EAST TENNESSEE, V. & G.R. CO., 128 U.S. 443, 445; WASHINGTON &
GEORGETOWN R. CO. V. MCDADE, 135 U.S. 554, 572.  TO WITHDRAW SUCH A
QUESTION FROM THE JURY IS TO USURP ITS FUNCTIONS. 

THE RIGHT TO TRIAL BY JURY IS "A BASIC AND FUNDAMENTAL FEATURE OF OUR
SYSTEM OF FEDERAL JURISPRUDENCE."  JACOB V. NEW YORK CITY, 315 U.S.
752.  IT IS PART AND PARCEL OF THE REMEDY AFFORDED RAILROAD WORKERS
UNDER THE EMPLOYERS LIABILITY ACT.  REASONABLE CARE AND CAUSE AND
EFFECT ARE AS ELUSIVE HERE AS IN OTHER FIELDS.  BUT THE JURY HAS BEEN
CHOSEN AS THE APPROPRIATE TRIBUNAL TO APPLY THOSE STANDARDS TO THE
FACTS OF THESE PERSONAL INJURIES.  THAT METHOD OF DETERMINING THE
LIABILITY OF THE CARRIERS AND OF PLACING ON THEM THE COST OF THESE
INDUSTRIAL ACCIDENTS MAY BE CRUDE, ARCHAIC, AND EXPENSIVE AS COMPARED
WITH THE MORE MODERN SYSTEMS OF WORKMEN'S COMPENSATION.  BUT HOWEVER
INEFFICIENT AND BACKWARD IT MAY BE, IT IS THE SYSTEM WHICH CONGRESS HAS
PROVIDED.  TO DEPRIVE THESE WORKERS OF THE BENEFIT OF A JURY TRIAL IN
CLOSE OR DOUBTFUL CASES IS TO TAKE AWAY A GOODLY PORTION OF THE RELIEF
WHICH CONGRESS HAS AFFORDED THEM. 

SINCE THE EVIDENCE OF RESPONDENT'S NEGLIGENCE IN FAILING TO PROVIDE
BAILEY WITH A SAFE PLACE TO WORK IS SUFFICIENT TO SUPPORT THE VERDICT
OF THE JURY AND THE JUDGMENT OF THE TRIAL COURT, WE DO NOT REACH THE
OTHER ISSUES WHICH HAVE BEEN PRESENTED BY PETITIONER.  REVERSED. 

MR. JUSTICE ROBERTS: 

I AM OF OPINION THAT THIS CASE IS ONE OF A TYPE NOT INTENDED BY
CONGRESS TO BE BROUGHT TO THIS COURT FOR REVIEW.  ACTIONS UNDER THE
FEDERAL EMPLOYERS LIABILITY ACT CONSTITUTE BUT ONE CATEGORY OF THE
GREAT TOTAL OF ACTIONS TRIABLE IN FEDERAL DISTRICT COURTS AND IN THE
COURTS OF THE FORTY-EIGHT STATES WHICH MAY COME TO THIS COURT.  WHILE
THE LEGAL PRINCIPLES BINDING ALIKE ON COURT AND JURY IN SUCH ACTIONS
ARE, FOR THE MOST PART, SETTLED, THE COMPLEXES OF FACT TO WHICH THESE
PRINCIPLES ARE APPLICABLE RARELY ARE IDENTICAL IN ANY TWO LITIGATIONS. 
IF, IN EVERY CASE WHERE, PERADVENTURE, THIS COURT MIGHT DIFFER FROM A
LOWER COURT IN APPRAISING THE LEGAL EFFECT OF THE PROOFS ADDUCED BY
PLAINTIFF OR DEFENDANT, WE INDEPENDENTLY REVIEW THE FACTS TO DETERMINE
WHETHER THERE WAS EVIDENCE FOR A JURY'S CONSIDERATION, WE SHALL REVERSE
A COURSE FOUNDED IN OVER FIFTY YEARS OF HISTORY. 

WHILE A LITIGANT HAS NO CONSTITUTIONAL RIGHT OF APPELLATE REVIEW,
CONGRESS HAS SEEN FIT TO GRANT IT.  AND, UNTIL 1891, THIS COURT WAS,
WITH NEGLIGIBLE EXCEPTIONS, THE ONLY INSTRUMENT OF SUCH REVIEW.  THE
INCREASING VOLUME OF OUR APPELLATE WORK BADE FAIR TO RENDER THE COURT
INCOMPETENT TO GIVE NEEDED CONSIDERATION TO IMPORTANT CASES WHICH THE
PUBLIC INTEREST REQUIRED THAT IT DECIDE.  TO PRESERVE THE PRIVILEGE OF
APPELLATE REVIEW, AND TO PROVIDE AN APPELLATE TRIBUNAL WHERE MOST
FEDERAL LITIGATION SHOULD END WITHOUT RESORT OF THIS COURT, CONGRESS
CREATED THE CIRCUIT COURTS OF APPEALS.  FN1  THE RELIEF THUS AFFORDED
THIS COURT PREVENTED THE SUBSTANTIAL BREAK-DOWN OF OUR APPELLATE
FUNCTION.  BUT THE RELIEF PROVED INSUFFICIENT, AND CONGRESS CONTINUED
TO ADOPT MEANS TO RENDER IT POSSIBLE FOR US TO DO THE INDISPENSABLE
WORK OF THE COURT.  IN 1915 IT MADE THE JUDGMENTS OF CIRCUIT COURTS OF
APPEALS FINAL IN CERTAIN CLASSES OF CASES ARISING IN PUERTO RICO AND
HAWAII, AND ALSO IN BANKRUPTCY CASES, SUBJECT, AS TO THE LATTER, TO OUR
DISCRETIONARY POWER TO TAKE CASES INVOLVING IMPORTANT QUESTIONS N2. 
THE HOUSE COMMITTEE IN ITS REPORT SAID AS TO THE OBJECTS OF THE BILL:
FN3 

"RELIEVING THE SUPREME COURT OF THE UNITED STATES FROM THE NECESSITY
OF REVIEWING SUCH CASES FROM THE SUPREME COURTS OF PORTO RICO AND
HAWAII AS INVOLVE NO FEDERAL QUESTION, BUT DEPEND ENTIRELY UPON THE
LOCAL OR GENERAL LAW.  UNDER THE LAW AS IT NOW STANDS THE DECISIONS OF
THE SUPREME COURTS OF PORTO RICO AND HAWAII ARE REVIEWABLE BY THE
SUPREME COURT OF THE UNITED STATES NOT ONLY WHEN SOME FEDERAL RIGHT IS
IN CONTROVERSY, BUT ALSO IN ALL CASES WHICH INVOLVE MORE THAN $5,000,
WITHOUT RESPECT TO THE CHARACTER OF THE QUESTIONS INVOLVED.  THIS
EXISTING RIGHT TO REVIEW IN THE SUPREME COURT WHEN FEDERAL RIGHTS ARE
IN CONTROVERSY, BUT LEAVES ALL OTHER CASES TO BE DEALT WITH UPON A
PETITION FOR A WRIT OF CERTIORARI, AS IS NOW THE LAW WITH RESPECT TO
MOST OF THE CASES IN THE CIRCUIT COURT OF APPEALS." 

THE GREAT MASS OF LITIGATION IN STATE AND FEDERAL COURTS ARISING
UNDER THE EMPLOYERS LIABILITY ACT AND RAILWAY SAFETY APPLIANCE
LEGISLATION STILL COULD BE BROUGHT TO THIS COURT AS OF RIGHT UNDER
EXISTING LAW.  FN4  IN 1916 CONGRESS ABOLISHED THE RIGHT AND MADE THE
JUDGMENTS OF STATE APPELLATE COURTS AND CIRCUIT COURTS OF APPEALS FINAL
IN THIS CLASS OF CASES, SUBJECT TO OUR DISCRETIONARY REVIEW.  FN5  THE
SENATE COMMITTEE REPORT ON THE BILL WAS ENTITLED "RELIEF OF THE SUPREME
COURT," AND TO IT WAS APPENDED A MEMORANDUM PREPARED BY THE CLERK OF
THIS COURT EXHIBITING THE CONGESTED STATE OF OUR DOCKET.  FN6  FINALLY,
IN 1925, CONGRESS DEALT IN THE SAME FASHION WITH ALL LITIGATION SOUGHT
TO BE BROUGHT HERE FOR REVIEW FROM STATE AND FEDERAL TRIBUNALS, SAVE
FOR CERTAIN NARROWLY RESTRICTED CLASSES.  FN7 

WITHOUT THE BENEFIT OF THIS RESTRICTION OF ITS OBLIGATORY
JURISDICTION THIS COURT COULD NOT HAVE ATTAINED THE END AND AIM OF ITS
CREATION.  BUT THERE REMAINS THE CONSTANT DANGER THAT, BY TAKING CASES
LYING OUTSIDE DEFINED AREAS OF IMPORTANCE, THE COURT WILL LIMIT ITS
ABILITY ADEQUATELY TO DEAL WITH THOSE WHICH ALL WILL AGREE IT MUST
ADJUDICATE. 

AND SO THE POLICY OF THE COURT HAS BEEN TO ABSTAIN FROM TAKING A CASE
EVEN THOUGH IT THOUGHT IT ERRONEOUSLY DECIDED BELOW, WHETHER ON AN
ISSUE OF LAW OR FACT, IF THE DECISION DID NOT INVOLVE AN IMPORTANT
QUESTION OF LAW, DID NOT CREATE A DIVERSITY OF DECISION IN LOWER
COURTS, OR WOULD NOT SERIOUSLY AFFECT THE ADMINISTRATION OF THE LAW IN
OTHER CASES.  AND THIS HAS BEEN ESPECIALLY SO WHERE A DECISION BELOW
RECOGNIZED THE CONTROLLING LEGAL PRINCIPLES BUT WAS CLAIMED TO HAVE
APPLIED THEM IMPROPERLY TO THE SPECIFIC FACTS DISCLOSED.  THE INSTANT
CASE PLAINLY BELONGS IN THE CLASS LAST MENTIONED.  ALL MEMBERS OF THE
SUPREME COURT OF VERMONT AGREED UPON THE CONTROLLING LEGAL RULE.  THEY
SHARPLY AND ALMOST EVENLY DIVIDED ON THE QUESTION WHETHER THE
PLAINTIFF'S EVIDENCE BROUGHT HER CASE WITHIN THAT RULE.  WHAT THEY
DECIDED, AND WHAT WE DECIDE, CAN ADD NOTHING TO THE BODY OF
JURISPRUDENCE.  AND IT IS IRRELEVANT TO THE QUESTION OF OUR EXERCISE OF
THE POWER OF REVIEW THAT IF WE HAD BEEN CHARGED WITH THE RESPONSIBILITY
OF A TRIAL JUDGE OR A MEMBER OF THE COURT BELOW, WE MIGHT HAVE HELD THE
CASE ONE FOR SUBMISSION TO A JURY.    IN ALMOST EVERY LITIGATION, THE
PARTIES ARE AFFORDED HEARINGS IN AT LEAST TWO COURTS.  THIS WAS TRUE
HERE, THE APPELLATE COURT BEING THE SUPREME COURT OF THE STATE OF THE
PARTIES' RESIDENCE.  IF, IN SUCH A CASE, WE ACCORD A THIRD HEARING,
WHENEVER WE SHOULD HAVE APPLIED THE LAW DIFFERENTLY, WE SHALL HAVE
LITTLE TIME OR OPPORTUNITY TO DO AUGHT ELSE THAN EXAMINE THE CLAIMS OF
PLAINTIFFS AND DEFENDANTS THAT, IN THE SPECIAL CIRCUMSTANCES DISCLOSED,
PREJUDICIAL ERRORS HAVE BEEN COMMITTED IN THE ADMISSION OF EVIDENCE, IN
RULINGS OF LAW, AND IN CHARGES TO JURIES. 

THERE IS NO REASON WHY A PREFERENCE SHOULD BE GIVEN, IN THESE
RESPECTS, TO ACTIONS INSTITUTED UNDER THE FEDERAL EMPLOYERS LIABILITY
ACT, OVER OTHERS FOUNDED ON OTHER FEDERAL STATUTES, OVER CONTRACT
CASES, OR ADMIRALTY CASES, WHERE A FAILURE PROPERLY TO RULE ON THE
FACTS IS ASSERTED TO HAVE WROUGHT INJURY TO ONE OF THE PARTIES.  FN8 

IT SEEMS TO BE THOUGHT, HOWEVER, THAT ANY RULING WHICH TAKES A CASE
FROM THE JURY, ALBEIT IT WILL NOT SERVE AS A PRECEDENT, IS OF SUCH
PARAMOUNT IMPORTANCE AS TO REQUIRE REVIEW HERE.  I MERELY STATE MY
CONVICTION THAT THE SEVENTH AMENDMENT ENVISAGES TRIAL NOT BY JURY, BUT
BY COURT AND JURY, ACCORDING TO THE VIEW OF THE COMMON LAW, AND THAT
FEDERAL AND STATE COURTS HAVE NOT USURPED POWER DENIED THEM BY THE
FUNDAMENTAL LAW IN DIRECTING VERDICTS WHERE A PARTY FAILED TO ADDUCE
PROOF TO SUPPORT HIS CONTENTION, OR IN ENTERING JUDGMENT
NOTWITHSTANDING A VERDICT FOR LIKE REASON.  BUT THIS I DO SAY, THAT
THIS COURT DOES NOT SIT TO REDRESS EVERY APPARENT ERROR COMMITTED BY
COMPETENT AND RESPONSIBLE COURTS WHOSE JUDGMENTS WE ARE EMPOWERED TO
REVIEW.  AND, IF WE UNDERTAKE ANY SUCH TASK, WE SHALL DISENABLE THE
COURT TO FULFILL ITS HIGH OFFICE IN THE SCHEME OF OUR GOVERNMENT. 

FINALLY, I CANNOT CONCUR IN THE INTIMATION, WHICH I THINK THE OPINION
GIVES, THAT, AS CONGRESS HAS SEEN FIT NOT TO ENACT A WORKMEN'S
COMPENSATION LAW, THIS COURT WILL STRAIN THE LAW OF NEGLIGENCE TO
ACCORD COMPENSATION WHERE THE EMPLOYER IS WITHOUT FAULT.  I YIELD TO
NONE IN MY BELIEF IN THE WISDOM AND EQUITY OF WORKMEN'S COMPENSATION
LAWS, BUT I DO NOT CONCEIVE IT TO BE WITHIN OUR JUDICIAL FUNCTION TO
WRITE THE POLICY WHICH UNDERLIES COMPENSATION LAWS INTO ACTS OF
CONGRESS WHEN CONGRESS HAS NOT CHOSEN THAT POLICY BUT, INSTEAD, HAS
ADOPTED THE COMMON LAW DOCTRINE OF NEGLIGENCE. 

FN1  ACT OF MARCH 3, 1891, 26 STAT. 826. 

FN2  ACT OF JANUARY 28, 1915, 38 STAT. 803. 

FN3  H. REP. NO. 1182, 63D CONG., 2D SESS. 

FN4 SOUTHERN RY. CO. V. CROCKETT, 234 U.S. 725. 

FN5  ACT OF SEPT. 6, 1916, C. 448, 39 STAT. 726, SEC. 3.  SEE ANDREWS
V. VIRGINIAN RY. CO., 248 U.S. 272. 

FN6  S. REP. NO. 775, 64TH CONG., 1ST SESS.  SEE ALSO THE HOUSE
REPORT NO. 794, 64TH CONG., 1ST SESS. 

FN7  ACT OF FEBRUARY 13, 1925, 43 STAT. 936. 

FN8  SEE THE DISSENT IN DEPUTY V. DU PONT, 308 U.S. 488, 499. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 

MR. CHIEF JUSTICE STONE: 

I AGREE WITH MR. JUSTICE ROBERTS THAT THE PRESENT CASE IS NOT AN
APPROPRIATE ONE FOR THE EXERCISE OF OUR DISCRETIONARY POWER TO AFFORD A
SECOND APPELLATE REVIEW OF THE STATE COURT JUDGMENT BY WRIT OF
CERTIORARI.  BUT AS WE HAVE ADHERED TO OUR LONG STANDING PRACTICE OF
GRANTING CERTIORARI UPON THE AFFIRMATIVE VOTE OF FOUR JUSTICES, THE
CASE IS PROPERLY HERE FOR DECISION AND IS, I THINK, CORRECTLY DECIDED. 

..END :











ALTVATER V. FREEMAN, 319 U.S. 359 


NO. 696.  ARGUED APRIL 19, 1943.  - DECIDED MAY 24, 1943.  - 130 F.2D
763, REVERSED. 


1.  THE ISSUE OF VALIDITY MAY BE RAISED BY A COUNTERCLAIM IN A SUIT
FOR INFRINGEMENT OF A PATENT.  P. 363. 

2.  THE REQUIREMENTS AS TO THE EXISTENCE OF A CASE OR CONTROVERSY IN
SUITS IN THE FEDERAL COURTS ARE NO LESS STRICT IN SUITS UNDER THE
DECLARATORY JUDGMENTS ACT THAN IN OTHERS.  P. 363. 

3.  THE REQUIREMENTS AS TO THE EXISTENCE OF A CASE OR CONTROVERSY ARE
MET WHERE PAYMENT OF A CLAIM IS DEMANDED AS OF RIGHT AND PAYMENT IS
MADE, BUT WHERE A RIGHT TO RECOVER THE AMOUNT PAID OR TO CHALLENGE THE
LEGALITY OF THE CLAIM IS PRESERVED BY THE COERCIVE NATURE OF THE
EXACTION.  P. 365. 

4.  ALTHOUGH THE DECISION OF NON-INFRINGEMENT OF THE PATENT DISPOSED
OF THE BILL AND ANSWER IN THIS SUIT, IT DID NOT DISPOSE OF THE
COUNTERCLAIM, WHICH RAISED THE QUESTION OF THE VALIDITY OF THE PATENT;
AND THE CIRCUIT COURT OF APPEALS ERRED IN TREATING THE ISSUES RAISED BY
THE COUNTERCLAIM AS MOOT.  PP. 363, 365. 

ALTVATER ET AL. V. FREEMAN ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 318 U.S. 750, TO REVIEW A DECREE WHICH MODIFIED AND
AFFIRMED A DECREE DISMISSING THE BILL AND GRANTING THE PRAYER OF A
COUNTERCLAIM IN A PATENT CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT, LODGED IN THE FEDERAL DISTRICT COURT BY REASON OF
DIVERSITY OF CITIZENSHIP, WAS BROUGHT BY RESPONDENTS FOR SPECIFIC
PERFORMANCE OF A LICENSE AGREEMENT UNDER REISSUE PATENT NO. 20,202
ISSUED TO FREEMAN IN 1936 FOR A CUTOUT MACHINE FOR SHOE UPPERS, IT
BEING ALLEGED THAT THE REISSUE PATENT WAS SUBSTITUTED UNDER THE
AGREEMENT FOR THE ORIGINAL PATENT - NO. 1,681,033.  FN1  THE BILL
ALLEGED THAT CONTRARY TO THE PROVISIONS OF THE LICENSE AGREEMENT
PETITIONERS WERE MANUFACTURING AND SELLING CERTAIN DEVICES WHICH
INFRINGED THE REISSUE PATENT AND THAT THEY HAD NOT CONFINED THEMSELVES
TO THE TERRITORY IN WHICH THE LICENSE AGREEMENT PERMITTED THEM TO MAKE
SALES OF THE PATENTED ARTICLE.  THE BILL ASKED FOR SPECIFIC
PERFORMANCE, FOR AN INJUNCTION, AND FOR AN ACCOUNTING.  PETITIONERS
ANSWERED DENYING GENERALLY THE ALLEGATIONS OF THE BILL AND SETTING UP
VARIOUS DEFENSES.  THEY CHARGED AMONG OTHER THINGS THAT THE TWO REISSUE
PATENTS OBTAINED ON THE SURRENDER OF THE ORIGINAL PATENT WERE INVALID;
AND THEY ASSERTED THAT WHILE THEY HAD MADE PAYMENTS OF ROYALTIES UNDER
THE REISSUE PATENTS, THEY DID SO IN PROTEST AND THAT THOSE PAYMENTS DID
NOT SUBSTITUTE THE REISSUE PATENTS FOR THE ORIGINAL PATENT UNDER THE
LICENSE AGREEMENT.  PETITIONERS ALSO FILED A COUNTERCLAIM PRAYING FOR A
DECLARATORY JUDGMENT.  THEY ALLEGED IN THE COUNTERCLAIM THAT THE
LICENSE AGREEMENT DID NOT COVER THE REISSUE PATENTS; THAT THEY WERE
WILLING TO PAY ROYALTIES IF THE AGREEMENT COVERED THE REISSUES AND IF
THEY WERE VALID; THAT THE REISSUES WERE NOT VALID, BUT THAT IF
PETITIONERS CANCELLED THE LICENSE AGREEMENT AND REFUSED TO PAY ANY
ROYALTIES UNDER IT, THEY WOULD BE SUBJECT TO INFRINGEMENT SUITS.  THEY
ACCORDINGLY ALLEGED THAT IN ORDER TO PROTECT THE BUSINESS BUILT UP IN
GOOD FAITH UNDER THE LICENSE, AN ADJUDICATION OF THE CONTROVERSY AND
DISPUTE BETWEEN THE PARTIES WAS NECESSARY.  THEY PRAYED THAT THE
REISSUE PATENTS BE DECLARED INVALID, BUT THAT, IF THEY WERE HELD TO BE
VALID, THE LICENSE AGREEMENT BE EXTENDED TO THEM.  IN A REPLY TO THE
COUNTERCLAIM, RESPONDENTS DENIED ITS ESSENTIAL ALLEGATIONS AND ALLEGED
AMONG OTHER THINGS THAT THERE WAS NO JUSTICIABLE CONTROVERSY BETWEEN
THE PARTIES AS SET FORTH IN THE COUNTERCLAIM AND THEREFORE THAT
PETITIONERS HAD NO RIGHT TO THE DECLARATORY JUDGMENT. 

A BRIEF SUMMARY OF EARLIER LITIGATION BETWEEN THE PARTIES WILL HELP
SHARPEN THE OUTLINES OF THE PRESENT CONTROVERSY.  THE LICENSE UNDER THE
ORIGINAL PATENT WAS EXECUTED IN 1929.  SHORTLY THEREAFTER PETITIONERS
MARKETED A MACHINE KNOWN AS MODEL T, WHICH RESPONDENTS CLAIMED VIOLATED
THE AGREEMENT.  THEY ACCORDINGLY BROUGHT A SUIT FOR SPECIFIC
PERFORMANCE OF THE AGREEMENT, CHARGING VIOLATION OF ITS COVENANTS AND
INFRINGEMENT.  THE COURT HELD IN FREEMAN V. ALTVATER, 66 F.2D 506, THAT
THE VALIDITY OF THE PATENT WAS NOT IN ISSUE, SINCE PETITIONERS, BEING
LICENSEES, WERE ESTOPPED TO ASSERT ITS INVALIDITY.  THE COURT
CONCLUDED, HOWEVER, THAT THE MACHINE DID INFRINGE.  AN ACCOUNTING WAS
ORDERED.  RESPONDENTS ENDEAVORED LATER ON TO HAVE THE ACCOUNTING COVER
THE ACCUSED DEVICES INVOLVED IN THE PRESENT SUIT.  THAT EFFORT WAS NOT
SUCCESSFUL.  MEANWHILE PREMIER MACHINE CO. V. FREEMAN, 84 F.2D 425, WAS
DECIDED.  IT WAS A SUIT FOR INFRINGEMENT OF THE ORIGINAL PATENT, THE
DEFENSE BEING INVALIDITY.  OF THE 94 CLAIMS OF THE PATENT, 26 WERE
INVOLVED IN THAT SUIT.  THE COURT HELD THAT ONLY THREE OF THAT GROUP
WERE VALID.  THAT WAS IN JUNE 1936.  IN NOVEMBER 1936 FREEMAN FILED A
DISCLAIMER COVERING ALL CLAIMS HELD INVALID IN THE PREMIER MACHINE
CASE.  LATER IN 1936 HE SURRENDERED HIS ORIGINAL PATENT AND OBTAINED
REISSUE PATENTS.  THE INVALIDITY OF THE REISSUE PATENTS WAS ASSERTED IN
THE PRESENT SUIT ON THE GROUNDS, AMONG OTHERS, THAT THE DISCLAIMER WAS
IMPROPER AND THAT THE REISSUE PATENTS WERE DEVOID OF PATENTABLE SUBJECT
MATTER. 

THE DISTRICT COURT AFTER A HEARING FOUND THAT THE ACCUSED DEVICES DID
NOT INFRINGE RESPONDENTS' REISSUE PATENTS; THAT THE DECISION IN THE
PREMIER MACHINE CASE, 84 F.2D 425, HOLDING ONLY THREE OF THE TWENTY-SIX
CLAIMS OF THE ORIGINAL PATENT VALID, CONSTITUTED AN EVICTION UNDER THE
LICENSE AGREEMENT; THAT THE LICENSE AGREEMENT TERMINATED WITH THE
SURRENDER OF THE ORIGINAL PATENT IN 1936; THAT PETITIONERS DID NOT MAKE
THE REISSUE PATENTS THE BASIS FOR A NEW LICENSE CONTRACT; THAT WHILE
PETITIONERS SINCE THE DATE OF THE REISSUE PATENTS PAID CERTAIN
ROYALTIES THEY DID SO UNDER PROTEST AND PURSUANT TO THE INJUNCTION
WHICH WAS ENTERED IN THE FIRST ALTVATER CASE, 66 F.2D 506; AND THAT THE
REISSUE PATENTS WERE INVALID.  THE DISTRICT COURT ACCORDINGLY DISMISSED
THE BILL OF COMPLAINT AND GRANTED THE PRAYER OF THE COUNTERCLAIM.  THE
CIRCUIT COURT OF APPEALS AFFIRMED (129 F.2D 494), HOLDING THAT THE
DISTRICT COURT WAS WARRANTED IN CONCLUDING THAT THE ORIGINAL LICENSE
AGREEMENT WAS AT AN END AND THAT THE CONTINUANCE OF ROYALTY PAYMENTS
DID NOT INDICATE AN ACCEPTANCE OF THE REISSUE PATENTS TO FORM A NEW
CONTRACT; THAT THE ISSUE OF INFRINGEMENT INVOLVED ONLY CLAIM 6 OF
REISSUE PATENT NO. 20,202, THE CHARGES THAT OTHER CLAIMS WERE INFRINGED
HAVING BEEN ABANDONED; AND THAT THE ACCUSED DEVICES DID NOT INFRINGE. 
ON A PETITION FOR REHEARING AND MOTION TO MODIFY THE OPINION AND REVISE
THE DECREE, THE CIRCUIT COURT OF APPEALS RULED THAT WHEN THE DISTRICT
COURT FOUND NO CONTRACT OF LICENSE AND NO INFRINGEMENT, THE OTHER
ISSUES BECAME MOOT AND THERE WAS NO LONGER A JUSTICIABLE CONTROVERSY
BETWEEN THE PARTIES.  130 F.2D 763.  IT ACCORDINGLY MODIFIED THE DECREE
BY STRIKING FROM IT THE PROVISIONS WHICH HELD THAT FREEMAN WAS EVICTED
FROM HIS MONOPOLY BY THE DECISION IN THE PREMIER MACHINE CASE AND THAT
THE REISSUE PATENTS WERE INVALID, AND THE FURTHER PROVISION WHICH
RESOLVED THE ISSUES ON THE COUNTERCLAIM IN FAVOR OF PETITIONERS, SAYING
THAT IT EXPRESSED NO OPINION ON THOSE QUESTIONS.  THE CASE IS HERE ON A
PETITION FOR WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE
APPARENT MISINTERPRETATION BY THE CIRCUIT COURT OF APPEALS OF OUR
DECISION IN ELECTRICAL FITTINGS CORP. V. THOMAS & BETTS CO., 307 U.S.
241. 

THAT CASE WAS TRIED ONLY ON BILL AND ANSWER.  THE DISTRICT COURT
ADJUDGED A CLAIM OF A PATENT VALID ALTHOUGH IT DISMISSED THE BILL FOR
FAILURE TO PROVE INFRINGEMENT.  WE HELD THAT THE FINDING OF VALIDITY
WAS IMMATERIAL TO THE DISPOSITION OF THE CAUSE AND THAT THE WINNING
PARTY MIGHT APPEAL TO OBTAIN A REFORMATION OF THE DECREE.  TO HOLD A
PATENT VALID IF IT IS NOT INFRINGED IS TO DECIDE A HYPOTHETICAL CASE. 
FN2  BUT THE SITUATION IN THE PRESENT CASE IS QUITE DIFFERENT.  WE HAVE
HERE NOT ONLY BILL AND ANSWER BUT A COUNTERCLAIM.  THOUGH THE DECISION
OF NON-INFRINGEMENT DISPOSES OF THE BILL AND ANSWER, IT DOES NOT
DISPOSE OF THE COUNTERCLAIM WHICH RAISES THE QUESTION OF VALIDITY. 
SOLA ELECTRIC CO. V. JEFFERSON ELECTRIC CO., 317 U.S. 173, IS AUTHORITY
FOR THE PROPOSITION THAT THE ISSUE OF VALIDITY MAY BE RAISED BY A
COUNTERCLAIM IN AN INFRINGEMENT SUIT.  FN3  THE REQUIREMENTS OF CASE OR
CONTROVERSY ARE OF COURSE NO LESS STRICT UNDER THE DECLARATORY
JUDGMENTS ACT (48 STAT. 955, 28 U.S.C. SEC. 400) THAN IN CASE OF OTHER
SUITS.  UNITED STATES V. WEST VIRGINIA, 295 U.S. 463, 475; ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 325; AETNA LIFE INS. CO. V.
HAWORTH, 300 U.S. 227; MARYLAND CASUALTY CO. V. PACIFIC COAL CO., 312
U.S. 270.  BUT WE ARE OF THE VIEW THAT THE ISSUES RAISED BY THE PRESENT
COUNTERCLAIM WERE JUSTICIABLE AND THAT THE CONTROVERSY BETWEEN THE
PARTIES DID NOT COME TO AN END (UNITED STATES V. ALASKA S.S. CO., 253
U.S. 113, 116) ON THE DISMISSAL OF THE BILL FOR NON-INFRINGEMENT, SINCE
THEIR DISPUTE WENT BEYOND THE SINGLE CLAIM AND THE PARTICULAR ACCUSED
DEVICES INVOLVED IN THAT SUIT. 

IT IS SAID THAT SO LONG AS PETITIONERS ARE PAYING ROYALTIES THEY ARE
IN NO POSITION TO RAISE THE ISSUE OF INVALIDITY - THE THEORY BEING THAT
AS LICENSEES THEY ARE ESTOPPED TO DENY THE VALIDITY OF THE PATENTS AND
THAT, SO LONG AS THEY CONTINUE TO PAY ROYALTIES, THERE IS ONLY AN
ACADEMIC, NOT A REAL CONTROVERSY, BETWEEN THE PARTIES.  WE CAN PUT TO
ONE SIDE THE QUESTIONS RESERVED IN THE SOLA ELECTRIC CO. CASE -
WHETHER, AS HELD IN UNITED STATES V. HARVEY STEEL CO., 196 U.S. 310, A
LICENSEE IS ESTOPPED TO CHALLENGE THE VALIDITY OF A PATENT AND, IF SO,
WHETHER THAT RULE OF ESTOPPEL IS ONE OF LOCAL LAW OR OF FEDERAL LAW. 
IN THE PRESENT CASE BOTH THE DISTRICT COURT AND THE CIRCUIT COURT OF
APPEALS HAVE FOUND THAT THE LICENSE AGREEMENT WAS TERMINATED ON THE
SURRENDER OF THE ORIGINAL PATENT AND WAS NOT RENEWED AND EXTENDED TO
COVER THE REISSUE PATENTS.  THE FACT THAT ROYALTIES WERE BEING PAID DID
NOT MAKE THIS A "DIFFERENCE OR DISPUTE OF A HYPOTHETICAL OR ABSTRACT
CHARACTER."  AETNA LIFE INS. CO. V. HAWORTH, SUPRA, P. 240.  A
CONTROVERSY WAS RAGING, EVEN APART FROM THE CONTINUED EXISTENCE OF THE
LICENSE AGREEMENT.  THAT CONTROVERSY WAS "DEFINITE AND CONCRETE,
TOUCHING THE LEGAL RELATIONS OF PARTIES HAVING ADVERSE LEGAL
INTERESTS."  AETNA LIFE INS. CO. V. HAWORTH, SUPRA, PP. 240-241.  THAT
CONTROVERSY CONCERNED THE VALIDITY OF THE REISSUE PATENTS.  FN4  THOSE
PATENTS HAD MANY CLAIMS IN ADDITION TO THE SINGLE ONE INVOLVED IN THE
ISSUE OF INFRINGEMENT.  AND PETITIONERS WERE MANUFACTURING AND SELLING
ADDITIONAL ARTICLES CLAIMED TO FALL UNDER THE PATENTS.  ROYALTIES WERE
BEING DEMANDED AND ROYALTIES WERE BEING PAID.  BUT THEY WERE BEING PAID
UNDER PROTEST AND UNDER THE COMPULSION OF AN INJUNCTION DECREE.  IT WAS
TO LIFT THE HEAVY HAND OF THAT TRIBUTE FROM THE BUSINESS THAT THE
COUNTERCLAIM WAS FILED.  UNLESS THE INJUNCTION DECREE WERE MODIFIED,
FN5  THE ONLY OTHER COURSE WAS TO DEFY IT, AND TO RISK NOT ONLY ACTUAL
BUT TREBLE DAMAGES IN INFRINGEMENT SUITS.  REV. STAT. SEC. 4919, 35
U.S.C. SEC. 67.  IT WAS THE FUNCTION OF THE DECLARATORY JUDGMENTS ACT
TO AFFORD RELIEF AGAINST SUCH PERIL AND INSECURITY.  S. REP. NO. 1005,
73D CONG., 2D SESS., PP. 2-3.  AND SEE BORCHARD, DECLARATORY JUDGMENTS
(2D ED.)  PP. 927 ET SEQ. AND CERTAINLY THE REQUIREMENTS OF CASE OR
CONTROVERSY ARE MET WHERE PAYMENT OF A CLAIM IS DEMANDED AS OF RIGHT
AND WHERE PAYMENT IS MADE, BUT WHERE THE INVOLUNTARY OR COERCIVE NATURE
OF THE EXACTION PRESERVES THE RIGHT TO RECOVER THE SUMS PAID OR TO
CHALLENGE THE LEGALITY OF THE CLAIM.  SEE MAXWELL V. GRISWOLD, 10 HOW. 
242, 255-256; UNITED STATES V. LAWSON, 101 U.S. 164, 169; SWIFT & CO.
V. UNITED STATES, 111 U.S. 22, 28-30; ATCHISON, T. & S.F. RY. CO. V.
O'CONNOR, 223 U.S. 280, 286; GAAR, SCOTT & CO. V. SHANNON, 223 U.S.
468, 471; UNION PACIFIC R. CO. V. PUBLIC SERVICE COMM'N, 248 U.S. 67,
70; WOODWARD, THE LAW OF QUASI CONTRACTS (1913) SEC. 218. 

OUR CONCLUSION IS THAT IT WAS ERROR FOR THE CIRCUIT COURT OF APPEALS
TO HAVE TREATED THE ISSUES RAISED BY THE COUNTERCLAIM AS MOOT.  THEY
WERE NOT MOOT; AND THE DISTRICT COURT HAD PASSED ON THEM.  ACCORDINGLY,
THE CIRCUIT COURT OF APPEALS SHOULD HAVE REVIEWED THAT ADJUDICATION. 
FN6  THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE CIRCUIT
COURT OF APPEALS FOR THAT PURPOSE.  REVERSED. 

FN1  TWO REISSUE PATENTS - NO. 20,202 AND NO. 20,203 - WERE OBTAINED
FOR PATENT NO. 1,681,033 WHICH WAS SURRENDERED.  THE CONTRACT WAS BASED
UPON THE LATTER PATENT.  IT LICENSED PETITIONERS TO MAKE CERTAIN DIES
COMING WITHIN THE ORIGINAL PATENT, WITHIN A LIMITED TERRITORY AND FOR
USE WITH CERTAIN MACHINES, UPON PAYMENT OF ROYALTIES.  PETITIONERS
LIKEWISE AGREED NOT TO MAKE ANY MACHINES COMING WITHIN THE ORIGINAL
PATENT; AND THEY WAIVED THE RIGHT TO CONTEST THE VALIDITY OF THE PATENT
DURING ITS LIFE. 

FN2 SEE COVER V. SCHWARTZ, 133 F.2D 541. 

FN3  AND SEE LEACH V. ROSS HEATER & MFG. CO., 104 F.2D 88; BORCHARD,
DECLARATORY JUDGMENTS (2D ED.)  PP. 812-814. 

FN4  SHORTLY AFTER THE GRANT OF THE REISSUE PATENTS, PETITIONERS
FILED A SUIT FOR DECLARATION OF THEIR INVALIDITY.  THE CIRCUIT COURT OF
APPEALS SUSTAINED A DISMISSAL OF THE BILL ON THE GROUND THAT ALL OF THE
MATTERS PLACED AT ISSUE IN THAT SUIT COULD BE SETTLED IN THE PRESENT
ONE.  WESTERN SUPPLIES CO. V. FREEMAN, 109 F.2D 693. 

FN5  ON APRIL 15, 1943, WHILE THIS CASE WAS PENDING HERE, THE CIRCUIT
COURT OF APPEALS GRANTED PETITIONERS LEAVE TO APPLY TO THE DISTRICT
COURT TO VACATE THE DECREE IN THE FIRST ALTVATER SUIT, 66 F.2D 506. 
THE BASIS OF THAT MOTION APPEARS TO BE SUBSTANTIALLY THE SAME AS THE
COUNTERCLAIM IN THE PRESENT SUIT.  THIS UNDERLINES AND GIVES ADDED
EMPHASIS TO THE CLAIM THAT THERE IS A CONTROVERSY BETWEEN THE PARTIES
WITH RESPECT TO THE VALIDITY OF THE PATENTS GROWING OUT OF EVENTS
SUBSEQUENT TO THE FIRST ALTVATER CASE.  IT FURTHER SERVES TO
DEMONSTRATE THAT THE REQUIRED PAYMENT OF ROYALTIES UNDER THAT DECREE
DOES NOT ESTABLISH THE ABSENCE OF A CONTROVERSY. 

FN6  THE PROPOSAL THAT THE CAUSE SHOULD BE REMANDED TO THE DISTRICT
COURT SO THAT IT MIGHT PASS ON THOSE ISSUES ONCE MORE BEFORE THE
CIRCUIT COURT OF APPEALS REVIEWS THEM DOES NOT EMANATE FROM THE CIRCUIT
COURT OF APPEALS.  ITS REFUSAL TO REVIEW THAT ADJUDICATION RESTS ON A
MISINTERPRETATION OF ELECTRICAL FITTINGS CORP. V. THOMAS & BETTS CO.,
SUPRA, NOT ON ANY INADEQUACY OR INSUFFICIENCY OF THE FINDINGS OF THE
DISTRICT COURT.  IF THE STANDARDS OF GOOD JUDICIAL ADMINISTRATION BE
CONSIDERED, WE FAIL TO SEE WHY PETITIONERS SHOULD BE PUT TO TWO TRIALS
OF THE SAME ISSUES BEFORE A REVIEW BY THE CIRCUIT COURT OF APPEALS MAY
BE HAD.  NOR WOULD IT COMPORT WITH SOUND JUDICIAL ADMINISTRATION TO
UPHOLD A DENIAL OF APPELLATE REVIEW WHERE THE CONTROVERSY BETWEEN THE
PARTIES STILL RAGES AND WHERE THE APPEAL WAS DISMISSED BECAUSE OF A
MISTAKEN VIEW OF THE LAW.    MR. JUSTICE FRANKFURTER:    WE ARE
CONCERNED HERE WITH A PROBLEM IN JUDICIAL ADMINISTRATION, NOT A
QUESTION IN ALGEBRA AS TO WHICH THERE IS A DEMONSTRABLY RIGHT OR WRONG
ANSWER.  THE CASE BEFORE US PRESENTS ONLY ONE PHASE OF AN EXTENSIVE,
COMPLICATED PATENT LITIGATION INVOLVING NUMEROUS TECHNICAL AND
INTERDEPENDENT ISSUES.  THE QUESTION WHICH WE MUST NOW DECIDE IS THIS -
IN VIEW OF THE PRESENT POSTURE OF THE CONTROVERSY, SHALL ONE OF THESE
ISSUES BE ADJUDICATED IN THE MANNER INDICATED BY THE CIRCUIT COURT OF
APPEALS, OR SHALL THIS COURT DIRECT THAT IT BE ADJUDICATED UPON THE
DEFENDANTS' COUNTERCLAIM FOR A DECLARATORY JUDGMENT?  WE ARE ALL AGREED
THAT WHILE A DISTRICT COURT MAY HAVE JURISDICTION OF A SUIT OR CLAIM
UNDER THE FEDERAL DECLARATORY JUDGMENTS ACT, 28 U.S.C. SEC. 400, IT IS
UNDER NO COMPULSION TO EXERCISE SUCH JURISDICTION.  IF ANOTHER
PROCEEDING IS PENDING IN WHICH THE CLAIM IN CONTROVERSY MAY BE
SATISFACTORILY ADJUDICATED, A DECLARATORY JUDGMENT IS NOT A MANDATORY
REMEDY.  SOUND JUDICIAL ADMINISTRATION REQUIRES, IN MY VIEW, THAT WE
DECLINE TO INTERFERE WITH THE PROCEDURE WHICH THE COURT BELOW HAS
PROVIDED FOR THE ADJUDICATION OF THE CLAIMS FOR WHICH THE DEFENDANTS
SOUGHT A DECLARATORY JUDGMENT. 

THIS LITIGATION IS WRAPT IN CONFUSION, BUT FROM IT I EXTRACT THE
FOLLOWING HISTORY OF ITS COURSE THROUGH THE COURTS.  IN THE EARLY
1930'S A SUIT FOR INFRINGEMENT OF A SHOE MACHINE PATENT WAS BROUGHT BY
THE PATENTEE, FREEMAN, AGAINST ALTVATER, A LICENSEE.  THIS RESULTED IN
A RULING IN 1933 BY THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT
IN FREEMAN V. ALTVATER, 66 F.2D 506, THAT THE PATENT HAD BEEN INFRINGED
AND THAT THE LICENSEE WAS ESTOPPED TO ASSERT ITS INVALIDITY.  PURSUANT
TO THIS DECISION A DECREE WAS ENTERED REQUIRING ALTVATER TO PAY
ROYALTIES UNDER THE LICENSE AGREEMENT.  FREEMAN THEREAFTER BROUGHT SUIT
AGAINST ANOTHER ALLEGED INFRINGER.  IN THIS PROCEEDING THE CIRCUIT
COURT OF APPEALS FOR THE FIRST CIRCUIT HELD, IN PREMIER MACHINE CO. V.
FREEMAN, 84 F.2D 425, THAT 23 OF THE 94 CLAIMS OF FREEMAN'S PATENT WERE
INVALID.  ACCORDINGLY, FREEMAN SUBSEQUENTLY FILED A DISCLAIMER COVERING
THE 23 CLAIMS THUS HELD INVALID, SURRENDERED HIS PATENT, AND OBTAINED
REISSUE PATENTS ON THE REMAINING CLAIMS AS WELL AS SOME OTHER CLAIMS
NOT INVOLVED IN THE PREMIER SUIT. 

SHORTLY THEREAFTER FREEMAN BROUGHT A SECOND SUIT AGAINST ALTVATER AND
ANOTHER COMPANY.  IN THIS SUIT - WHICH RESULTED IN THE ACTION OF THE
CIRCUIT COURT OF APPEALS NOW UNDER REVIEW - FREEMAN ALLEGED THAT THE
DEFENDANTS WERE VIOLATING THE TERMS OF THE LICENSE AGREEMENT AND PRAYED
FOR SPECIFIC PERFORMANCE OF THE AGREEMENT.  THE DEFENDANTS DENIED THIS
ALLEGATION, AND, BY WAY OF COUNTERCLAIM, ASKED FOR A DECLARATION THAT
(1) THE LICENSE CONTRACT AND THE ORIGINAL PATENT "BE INTERPRETED IN THE
LIGHT OF THE DECISION" IN THE PREMIER CASE; (2) THE LICENSE CONTRACT
"BE INTERPRETED BY THIS COURT TO READJUST THE RELATIONSHIP BETWEEN ITS
PARTIES IN THE LIGHT OF THE FACTS TRANSPIRING SINCE IT WAS ENTERED
INTO"; (3) THE LICENSE AGREEMENT BE DECLARED TERMINATED AS OF THE DATE
OF THE SURRENDER OF THE ORIGINAL PATENT; (4) THE REISSUE PATENTS BE
DECLARED INVALID, "BUT, IF EITHER IS VALID, THEN TO INTERPRET IT OR
THEM INTO ITS OR THEIR PROPER SCOPE IN THE LIGHT OF THE FACTS
OCCURRED"; (5) IN THE EVENT THAT THE REISSUE PATENTS BE FOUND VALID,
THE PLAINTIFFS BE DIRECTED "TO GRANT TO THE DEFENDANTS A LICENSE UNDER
THEM OF A SCOPE TO PERMIT THEIR BUSINESS TO BE CONTINUED TO THE EXTENT
IT COULD OPERATE UNDER THE ORIGINAL CONTRACT, AND AT A ROYALTY
COMMENSURATE WITH THE PROTECTION AFFORDED BY THE PATENTS"; AND (6) THE
INJUNCTION AGAINST VIOLATION OF THE LICENSE AGREEMENT BE DECLARED
TERMINATED BECAUSE OF THE EXPIRATION OF SUCH AGREEMENT. 

THE DISTRICT COURT FOUND THAT THE LICENSE AGREEMENT ENDED WITH THE
SURRENDER OF THE ORIGINAL PATENT IN 1936, THAT THE REISSUE PATENTS HAD
NOT BEEN MADE THE BASIS OF A NEW CONTRACT BETWEEN THE PARTIES, AND
THAT, IN ANY EVENT, THE REISSUE PATENTS INCLUDED CLAIMS "NOT DEFINITELY
DISTINGUISHABLE FROM CLAIMS DISCLAIMED" AND HENCE WERE "INHERENTLY
INVALID FOR IMPROPER DISCLAIMER."  ACCORDINGLY, THE BILL WAS
DISMISSED.  THE DECREE RECITED ALSO THAT "THE ISSUES ON THE
COUNTERCLAIM ARE FOUND IN FAVOR OF DEFENDANTS AND THE COUNTERCLAIM IS
GRANTED." 

UPON APPEAL TO THE CIRCUIT COURT OF APPEALS THIS RULING OF THE
DISTRICT COURT WAS AFFIRMED, 129 F.2D 494, BUT UPON REHEARING THE COURT
HELD THAT ONCE IT WAS FOUND THAT THE LICENSE AGREEMENT HAD TERMINATED
AND THAT THE REISSUE PATENTS WERE NOT INFRINGED, THE REMAINING ISSUES
IN THE CASE, I.E., THOSE RELATING TO THE VALIDITY OF THE REISSUE
PATENTS, WERE "MOOT" IN THE SENSE THAT THERE WAS NO LONGER A
JUSTICIABLE CONTROVERSY FOR THE SOLUTION OF WHICH A DECLARATION WAS
NEEDED.  130 F.2D 763.  WHILE THE APPEAL WAS PENDING BEFORE THE CIRCUIT
COURT OF APPEALS, HOWEVER, THE DEFENDANTS PETITIONED THE DISTRICT COURT
TO VACATE THE DECREE ENTERED UNDER THE DECISION OF THE CIRCUIT COURT OF
APPEALS IN FREEMAN V. ALTVATER, 66 F.2D 506.  THIS MOTION WAS BASED
UPON TWO GROUNDS:  (1) THAT THE LICENSE AGREEMENT ENDED WHEN FREEMAN
SURRENDERED THE ORIGINAL PATENT AFTER THE DECISION IN THE PREMIER CASE,
AND (2) THAT THERE HAD BEEN NO VALID REISSUE OF THE PATENT CLAIMS. 
ACCORDINGLY, THE DEFENDANTS ASKED THAT THE INJUNCTION BE LIFTED AND
THAT THEY BE RELIEVED OF THEIR CONTINUING OBLIGATION TO PAY ROYALTIES
UNDER THE LICENSE AGREEMENT.  THE PLAINTIFFS OBJECTED TO THE
JURISDICTION OF THE DISTRICT COURT TO ENTERTAIN SUCH A MOTION WHILE THE
APPEAL WAS PENDING IN THE CIRCUIT COURT OF APPEALS.  THE DISTRICT COURT
SUSTAINED THIS OBJECTION, AND THE DEFENDANTS APPEALED.  ON APRIL 15,
1943, AFTER THE DECISION OF THE CIRCUIT COURT OF APPEALS UPON REHEARING
AND WHILE THE CASE WAS PENDING HERE ON CERTIORARI, THE CIRCUIT COURT OF
APPEALS GRANTED THE DEFENDANTS, THE PETITIONERS IN THIS COURT, LEAVE TO
PROCEED IN THE DISTRICT COURT TO VACATE THE 1933 DECREE.  IN ITS
OPINION THE COURT BELOW EXPRESSLY STATED THAT "WHETHER THE REISSUE
PATENTS ARE WHOLLY INVALID, AS DEFENDANTS CONTEND, OR, IF NOT, WHETHER
THE CLAIMS AS REISSUED ARE WITHIN THE PROTECTIVE SCOPE OF THE EXISTING
INJUNCTION IS A MATTER WHICH THE DISTRICT COURT WILL HAVE TO
DETERMINE."  135 F.2D 212, 213. 

THE CIRCUIT COURT OF APPEALS HAS THUS COMMITTED TO THE DISTRICT COURT
SUBSTANTIALLY THE SAME QUESTIONS AS THOSE RAISED BY THE DEFENDANTS'
COUNTERCLAIM, I.E., THOSE RELATING TO THE VALIDITY OF THE REISSUE
PATENTS.  BY THIS ACTION THE CIRCUIT COURT OF APPEALS HAD EFFECTIVELY
RECALLED ITS PREVIOUS RULING THAT THESE QUESTIONS WERE "MOOT." 
WHATEVER MIGHT BE SAID, THEREFORE, AS TO THE CORRECTNESS OF ITS RULING
THAT THE VALIDITY OF THE REISSUE PATENTS PRESENTED "NON-JUSTICIABLE"
QUESTIONS, THE INESCAPABLE FACT REMAINS THAT THERE IS NOW BEFORE THE
DISTRICT COURT FOR DETERMINATION A PROCEEDING INITIATED BY THE
PETITIONERS INVOLVING THE VERY QUESTIONS RAISED BY THE COUNTERCLAIM. 
BY PUTTING THE WHOLE CASE IN THE CHARGE OF THE DISTRICT COURT, THE
CIRCUIT COURT OF APPEALS HAS MADE IT ACADEMIC FOR US TO CONSIDER THE
CORRECTNESS OF ITS EARLIER RULING THAT THERE REMAINED NO JUSTICIABLE
ISSUES IN THE CONTROVERSY BETWEEN THE PARTIES.  REVIEW OF THE GRANT OR
DENIAL OF A DECLARATORY JUDGMENT, LIKE AN APPEAL IN EQUITY, CALLS FOR
DISPOSITION OF THE CASE ON THE BASIS OF THE CIRCUMSTANCES FOUND TO
EXIST WHEN THE APPEAL IS DECIDED.  THE CIRCUIT COURT OF APPEALS MAY
HAVE BEEN IN ERROR IN HOLDING THAT THE QUESTIONS RELATING TO THE
VALIDITY OF THE REISSUE PATENTS COULD NOT BE PASSED UPON BECAUSE THERE
WAS NO LONGER A "JUSTICIABLE" CONTROVERSY ONCE NON-INFRINGEMENT WAS
FOUND.  BUT ITS SUBSEQUENT ACTION, DIRECTING THE DISTRICT COURT TO PASS
UPON THESE QUESTIONS, IS A TIMELY CORRECTION, IF SUCH WAS CALLED FOR,
OF ITS EARLIER RULING. 

THEREFORE, IT SEEMS TO ME THAT GOOD JUDICIAL ADMINISTRATION SHOULD
STAY OUR INTERFERENCE WITH THE CIRCUIT COURT OF APPEALS' EXERCISE OF
ITS DISCRETION IN ADJUSTING THE MANNER BY WHICH THE ISSUES AS TO THE
VALIDITY OF THE REISSUE PATENTS SHOULD BE ADJUDICATED.  IT IS THE
CIRCUIT COURT OF APPEALS WHICH, BY ITS ACTION OF APRIL 15, 1943, HAS IN
EFFECT REMANDED THE CAUSE TO THE DISTRICT COURT FOR DETERMINATION OF
THESE ISSUES.  NO VALID REASON APPEARS FOR DISTURBING THE DISPOSITION
IT HAS MADE OF THE LITIGATION.  THE LOWER FEDERAL COURTS OUGHT NOT TO
BE NARROWLY CONFINED IN DETERMINING WHETHER A DECLARATORY JUDGMENT IS
AN APPROPRIATE REMEDY UNDER ALL THE CIRCUMSTANCES.  WE NEED NOT
SPECULATE TOO FAR AS TO THE REASONS WHICH MAY HAVE PROMPTED THE CIRCUIT
COURT OF APPEALS IN THIS CASE TO REMAND THE ISSUES AS TO THE VALIDITY
OF THE PATENTS TO THE DISTRICT COURT.  IT MAY HAVE BEEN OF THE OPINION,
FOR EXAMPLE, THAT THE FINDINGS OF THE DISTRICT COURT LACKED SUFFICIENT
CLARITY, ESPECIALLY IN VIEW OF THE CLOUDINESS OF THE PLEADINGS.  IN ANY
EVENT, HOWEVER, THIS SEEMS TO ME TO BE THE KIND OF A CASE IN WHICH THIS
COURT SHOULD BE MOST RELUCTANT TO INTERFERE WITH THE PROCEDURE
DETERMINED UPON BY THE CIRCUIT COURT OF APPEALS. 

IF WE ARE TO CONSIDER THE CORRECTNESS OF THE RULING THAT THE ISSUES
RELATING TO THE VALIDITY OF THE REISSUE PATENTS ARE NOT "JUSTICIABLE,"
I FIND IT TOO DIFFICULT TO ACCEPT THE REASONING OF MY BRETHREN.  THE
COURT'S CONCLUSION THAT THE CIRCUIT COURT OF APPEALS ERRED IN FINDING
"MOOTNESS" AS TO THE QUESTIONS RAISED BY THE COUNTERCLAIM RESTS
SUBSTANTIALLY UPON THE NOTION THAT A CONTROVERSY STILL EXISTS BECAUSE
THE DEFENDANTS ARE LABORING UNDER THE "HEAVY" OBLIGATION OF PAYING
ROYALTIES UNDER THE LICENSE AGREEMENT.  BUT WE HAVE HELD THAT THE
CONTROVERSY MUST BE "DEFINITE AND CONCRETE," "REAL AND SUBSTANTIAL," IN
ORDER THAT A DECLARATORY JUDGMENT MAY BE GIVEN.  AETNA LIFE INS. CO. V.
HAWORTH, 300 U.S. 227, 240-41; AND SEE MARYLAND CASUALTY CO. V. PACIFIC
CO., 312 U.S. 270, 273.  THE DEFENDANTS' OBLIGATION TO PAY ROYALTIES
UNDER THE LICENSE AGREEMENT CANNOT BE VERY SUBSTANTIAL AT THE PRESENT
TIME, SINCE BOTH THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS
HAVE HELD THAT THE LICENSE AGREEMENT TERMINATED IN 1936 WITH THE
SURRENDER OF THE ORIGINAL PATENT.  IN VIEW OF THESE RULINGS THE
DEFENDANTS' NEED FOR "RELIEF" IS PRACTICALLY INFINITESIMAL, SINCE ALL
THAT REMAINS TO BE DONE IS THE ENTRY OF A FORMAL ORDER VACATING THE
1933 DECREE.  THE "INSECURITY" AND "PERIL" FROM WHICH LITIGANTS CAN BE
SAVED ONLY BY A DECLARATORY JUDGMENT ARE CONSPICUOUS BY THEIR ABSENCE
FROM THIS CASE AT THIS TIME.  IT MAY VERY WELL BE THAT ONE WHO
INFRINGES A PATENT SHOULD BE ENTITLED TO OBTAIN A DECLARATION AS TO ITS
VALIDITY EVEN THOUGH HE IS UNDER NO CONTRACTUAL OBLIGATION TO PAY
ROYALTIES AS A LICENSEE.  THE EXISTENCE OF AN INVALID PATENT MAY
SUBSTANTIALLY IMPAIR THE ECONOMIC POSITION OF THOSE WHO MARKET ARTICLES
WHICH INFRINGE SUCH A PATENT, EVEN THOUGH NO INFRINGEMENT SUITS MAY BE
IMMEDIATELY THREATENED.  POTENTIAL PURCHASERS MAY NATURALLY BE
RELUCTANT TO ESTABLISH BUSINESS RELATIONS UPON SO INSECURE A BASIS. 
BUT THE COURT HAS NOT CHOSEN TO SUSTAIN THE PROPRIETY OF A DECLARATORY
JUDGMENT HERE UPON THIS GROUND, AND IT IS THEREFORE IDLE TO CONSIDER
ITS MERITS. 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :





GALLOWAY V. UNITED STATES, 319 U.S. 372 


NO. 553.  ARGUED MARCH 9, 1943.  - DECIDED MAY 24, 1943.  - 130 F.2D
467, AFFIRMED. 


1.  IN THIS SUIT AGAINST THE UNITED STATES TO RECOVER BENEFITS UNDER A
CONTRACT OF WAR RISK INSURANCE, ON ACCOUNT OF ALLEGED TOTAL AND
PERMANENT DISABILITY RESULTING FROM INSANITY OF THE INSURED WHILE THE
POLICY WAS IN FORCE, HELD THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
A JUDGMENT FOR THE PLAINTIFF AND THE TRIAL COURT PROPERLY GRANTED THE
GOVERNMENT'S MOTION FOR A DIRECTED VERDICT.  P. 386. 

2.  THE SEVENTH AMENDMENT HAS NO APPLICATION OF ITS OWN FORCE TO THIS
SUIT AGAINST THE UNITED STATES.  P. 388. 

3.  UPON THE RECORD IN THIS CASE, THE DIRECTION OF THE VERDICT FOR
THE DEFENDANT DID NOT DEPRIVE THE PLAINTIFF OF THE RIGHT TO A JURY
TRIAL.  P. 396. 

GALLOWAY V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 317 U.S. 622, TO REVIEW THE AFFIRMANCE OF A JUDGMENT UPON
A VERDICT DIRECTED FOR THE GOVERNMENT IN A SUIT TO RECOVER BENEFITS
UNDER A CONTRACT OF WAR RISK INSURANCE. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

PETITIONER SEEKS BENEFITS FOR TOTAL AND PERMANENT DISABILITY BY
REASON OF INSANITY HE CLAIMS EXISTED MAY 31, 1919.  ON THAT DAY HIS
POLICY OF YEARLY RENEWABLE TERM INSURANCE LAPSED FOR NONPAYMENT OF
PREMIUM.  FN1 

THE SUIT WAS FILED JUNE 15, 1938.  AT THE CLOSE OF ALL THE EVIDENCE,
THE DISTRICT COURT GRANTED THE GOVERNMENT'S MOTION FOR A DIRECTED
VERDICT.  JUDGMENT WAS ENTERED ACCORDINGLY.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  130 F.2D 467.  BOTH COURTS HELD THE EVIDENCE LEGALLY
INSUFFICIENT TO SUSTAIN A VERDICT FOR PETITIONER.  HE SAYS THIS WAS
ERRONEOUS AND, IN EFFECT, DEPRIVED HIM OF TRIAL BY JURY, CONTRARY TO
THE SEVENTH AMENDMENT. 

THE CONSTITUTIONAL ARGUMENT, AS PETITIONER HAS MADE IT, DOES NOT
CHALLENGE GENERALLY THE POWER OF FEDERAL COURTS TO WITHHOLD OR WITHDRAW
FROM THE JURY CASES IN WHICH THE CLAIMANT PUTS FORWARD INSUFFICIENT
EVIDENCE TO SUPPORT A VERDICT.  FN2  THE CONTENTION IS MERELY THAT HIS
CASE AS MADE WAS SUBSTANTIAL, THE COURTS' DECISIONS TO THE CONTRARY
WERE WRONG, AND THEREFORE THEIR EFFECT HAS BEEN TO DEPRIVE HIM OF A
JURY TRIAL.  PETITIONER RELIES PARTICULARLY UPON HALLIDAY V. UNITED
STATES, 315 U.S. 94, AND BERRY V. UNITED STATES, 312 U.S. 450, CITING
ALSO GUNNING V. COOLEY, 281 U.S. 90.  THESE CASES AND OTHERS RELIED
UPON ARE DISTINGUISHABLE UPON THE FACTS, AS WILL APPEAR.  UPON THE
RECORD AND THE ISSUES AS THE PARTIES HAVE MADE THEM, THE ONLY QUESTION
IS WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN A VERDICT FOR
PETITIONER.  ON THAT BASIS, WE THINK THE JUDGMENTS MUST BE AFFIRMED. 

                                  I. 

CERTAIN FACTS ARE UNDISPUTED.  PETITIONER WORKED AS A LONGSHOREMAN IN
PHILADELPHIA AND ELSEWHERE PRIOR TO ENLISTMENT IN THE ARMY NOVEMBER 1,
1917.  FN3  HE BECAME A COOK IN A MACHINE GUN BATTALION.  HIS UNIT
ARRIVED IN FRANCE IN APRIL, 1918.  HE SERVED ACTIVELY UNTIL SEPTEMBER
24.  FROM THEN TO THE FOLLOWING JANUARY HE WAS IN A HOSPITAL WITH
INFLUENZA.  HE THEN RETURNED TO ACTIVE DUTY.  HE CAME BACK TO THE
UNITED STATES, AND RECEIVED HONORABLE DISCHARGE APRIL 29, 1919.  HE
ENLISTED IN THE NAVY JANUARY 15, 1920, AND WAS DISCHARGED FOR BAD
CONDUCT IN JULY.  THE FOLLOWING DECEMBER HE AGAIN ENLISTED IN THE ARMY
AND SERVED UNTIL MAY 1922, WHEN HE DESERTED.  THEREAFTER HE WAS CARRIED
ON THE ARMY RECORDS AS A DESERTER. 

IN 1930 BEGAN A SERIES OF MEDICAL EXAMINATIONS BY VETERANS' BUREAU
PHYSICIANS.  ON MAY 19 THAT YEAR HIS CONDITION WAS DIAGNOSED AS "MORON,
LOW GRADE; OBSERVATION, DEMENTIA PRAECOX, SIMPLE TYPE."  IN NOVEMBER,
1931, FURTHER EXAMINATION GAVE THE DIAGNOSIS, "PSYCHOSIS WITH OTHER
DISEASES OR CONDITIONS (ORGANIC DISEASE OF THE CENTRAL NERVOUS SYSTEM -
TYPE UNDETERMINED)."  IN JULY, 1934, STILL ANOTHER EXAMINATION WAS
MADE, WITH DIAGNOSIS:  "PSYCHOSIS-MANIC AND DEPRESSIVE INSANITY
INCOMPETENT; HYPERTENSION, MODERATE; OTITIS MEDIA, CHRONIC, LEFT;
VARICOSE VEINS LEFT, MILD; ABSCESSED TEETH ROOTS; MYOCARDITIS, MILD." 

PETITIONER'S WIFE, THE NOMINAL PARTY IN THIS SUIT, WAS APPOINTED
GUARDIAN OF HIS PERSON AND ESTATE IN FEBRUARY, 1932.  CLAIM FOR
INSURANCE BENEFITS WAS MADE IN JUNE, 1934, AND WAS FINALLY DENIED BY
THE BOARD OF VETERANS' APPEALS IN JANUARY, 1936.  THIS SUIT FOLLOWED
TWO AND A HALF YEARS LATER. 

PETITIONER CONCEDEDLY IS NOW TOTALLY AND PERMANENTLY DISABLED BY
REASON OF INSANITY AND HAS BEEN FOR SOME TIME PRIOR TO INSTITUTION OF
THIS SUIT.  IT IS CONCEDED ALSO THAT HE WAS SOUND IN MIND AND BODY
UNTIL HE ARRIVED IN FRANCE IN APRIL, 1918. 

THE THEORY OF HIS CASE IS THAT THE STRAIN OF ACTIVE SERVICE ABROAD
BROUGHT ON AN IMMEDIATE CHANGE, WHICH WAS THE BEGINNING OF A MENTAL
BREAKDOWN THAT HAS GROWN WORSE CONTINUOUSLY THROUGH ALL THE LATER
YEARS.  ESSENTIAL IN THIS IS THE VIEW IT HAD BECOME A TOTAL AND
PERMANENT DISABILITY NOT LATER THAN MAY 31, 1919. 

THE EVIDENCE TO SUPPORT THIS THEORY FALLS NATURALLY INTO THREE
PERIODS, NAMELY, THAT PRIOR TO 1923; THE INTERVAL FROM THEN TO 1930;
AND THAT FOLLOWING 1930.  IT CONSISTS IN PROOF OF INCIDENTS OCCURRING
IN FRANCE TO SHOW THE BEGINNINGS OF CHANGE; TESTIMONY OF CHANGED
APPEARANCE AND BEHAVIOR IN THE YEARS IMMEDIATELY FOLLOWING PETITIONER'S
RETURN TO THE UNITED STATES AS COMPARED WITH THOSE PRIOR TO HIS
DEPARTURE; THE MEDICAL EVIDENCE OF INSANITY ACCUMULATED IN THE YEARS
FOLLOWING 1930; AND FINALLY THE EVIDENCE OF A PHYSICIAN, GIVEN LARGELY
AS MEDICAL OPINION, WHICH SEEKS TO TIE ALL THE OTHER EVIDENCE TOGETHER
AS FOUNDATION FOR THE CONCLUSION, EXPRESSED AS OF 1941, THAT
PETITIONER'S DISABILITY WAS TOTAL AND PERMANENT AS OF A TIME NOT LATER
THAN MAY OF 1919. 

DOCUMENTARY EXHIBITS INCLUDED MILITARY, NAVAL AND VETERANS' BUREAU
RECORDS.  TESTIMONY WAS GIVEN BY DEPOSITION OR AT THE TRIAL CHIEFLY BY
FIVE WITNESSES.  ONE, O'NEILL, WAS A FELLOW WORKER AND FRIEND FROM
BOYHOOD; TWO, WELLS AND TANIKAWA, SERVED WITH PETITIONER OVERSEAS; LT.
COL. ALBERT K. MATHEWS, WHO WAS AN ARMY CHAPLAIN, OBSERVED HIM OR
ANOTHER PERSON OF THE SAME NAME AT AN ARMY HOSPITAL IN CALIFORNIA
DURING EARLY 1920; AND DR. WILDER, A PHYSICIAN, EXAMINED HIM SHORTLY
BEFORE THE TRIAL AND SUPPLIED THE ONLY EXPERT TESTIMONY IN HIS BEHALF. 
THE PETITIONER ALSO PUT INTO EVIDENCE THE DEPOSITIONS OF COMMANDER
PLATT AND LT. COL. JAMES E. MATTHEWS, HIS SUPERIOR OFFICERS IN THE NAVY
AND THE ARMY, RESPECTIVELY, DURING 1920-22. 

WHAT HAPPENED IN FRANCE DURING 1918-19 IS SHOWN CHIEFLY BY WELLS AND
TANIKAWA.  WELLS TESTIFIED TO AN INCIDENT AT AISONVILLE, WHERE THE UNIT
WAS BILLETED SHORTLY AFTER REACHING FRANCE AND BEFORE GOING INTO
ACTION.  LATE AT NIGHT PETITIONER CREATED A DISTURBANCE, "HOLLERING,
SCREECHING, SWEARING.  ...  THE MEN POURED OUT FROM THE WHOLE
SWEARING AT HIS SUPERIOR OFFICERS AND SAW "THE RESULT, A BLACK EYE FOR
LT. WARNER."  HOWEVER, HE DID NOT SEE "WHO GAVE IT TO HIM.  FN4  "
WELLS PERSONALLY OBSERVED NO INFRACTION OF DISCIPLINE EXCEPT THIS
INCIDENT, AND DID NOT KNOW WHAT BROUGHT IT ON.  PETITIONER'S PHYSICAL
APPEARANCE WAS GOOD, HE "CARRIED ON HIS DUTIES AS A COOK ALL RIGHT,"
AND THE WITNESS DID NOT SEE HIM AFTER JUNE 1, EXCEPT FOR ABOUT THREE
DAYS IN JULY WHEN HE OBSERVED PETITIONER SEVERAL TIMES AT WORK FEEDING
STRAGGLERS. 

TANIKAWA, HAWAIIAN-BORN CITIZEN, SERVED WITH PETITIONER FROM THE
LATTER'S ENLISTMENT UNTIL SEPTEMBER, 1918, WHEN GALLOWAY WAS
HOSPITALIZED, ALTHOUGH THE WITNESS THOUGHT THEY HAD FOUGHT TOGETHER AND
PETITIONER WAS "ACTING QUEER" AT THE BATTLE OF THE ARGONNE IN OCTOBER. 
AT CAMP GREENE, NORTH CAROLINA, PETITIONER WAS "JUST A REGULAR SOLDIER,
VERY NORMAL,  ...  PRETTY NEAT."  AFTER REACHING FRANCE "HE WAS GETTING
NERVOUS  ...  , KIND OF IRRITABLE, ALWAYS PICKING A FIGHT WITH OTHER
SOLDIERS."  THIS BEGAN AT AISONVILLE.  TANIKAWA SAW GALLOWAY IN JAIL,
APPARENTLY BEFORE JUNE.  IT IS NOT CLEAR WHETHER THESE ARE REFERENCES
TO THE INCIDENT WELLS DESCRIBED. 

TANIKAWA DESCRIBED ANOTHER INCIDENT IN JUNE "WHEN WE WERE ON THE
MARNE," THE GERMANS "WERE ON THE OTHER SIDE AND WE WERE ON THIS SIDE." 
IT WAS A NEW FRONT, WITHOUT TRENCHES.  THE WITNESS AND PETITIONER WERE
ON GUARD DUTY WITH OTHERS.  TANIKAWA UNDERSTOOD THE GERMANS WERE
GETTING READY FOR A BIG DRIVE.  "ONE NIGHT HE (PETITIONER) SCREAMED. 
HE SAID, 'THE GERMANS ARE COMING' AND WE ALL GAGGED HIM."  THERE WAS NO
SHOOTING, THE GERMANS WERE NOT COMING, AND THERE WAS NOTHING TO LEAD
THE WITNESS TO BELIEVE THEY WERE.  PETITIONER WAS COURT-MARTIALED FOR
THE MATTER, BUT TANIKAWA DID NOT KNOW "WHAT THEY DID WITH HIM."  HE DID
NOT TALK WITH GALLOWAY THAT NIGHT, BECAUSE "HE WAS OUT OF HIS MIND" AND
APPEARED INSANE.  TANIKAWA DID NOT KNOW WHEN PETITIONER LEFT THE
BATTALION OR WHAT HAPPENED TO HIM AFTER (AS THE WITNESS PUT IT) THE
ARGONNE FIGHT, BUT HEARD HE WENT TO THE HOSPITAL, "JUST DRESSING
STATION I GUESS."  THE WITNESS NEXT SAW GALLOWAY IN 1936, AT A DISABLED
VETERANS' POST MEETING IN SACRAMENTO, CALIFORNIA.  PETITIONER THEN
"LOOKED TO ME LIKE HE WASN'T ALL THERE.  INSANE.  ABOUT THE SAME  ...
AS COMPARED TO THE WAY HE ACTED IN FRANCE, PARTICULARLY WHEN THEY
GAGGED HIM  ...  " 

O'NEILL WAS "BORN AND RAISED WITH" PETITIONER, WORKED WITH HIM AS A
LONGSHOREMAN, AND KNEW HIM "FROM WHEN HE COME OUT OF THE ARMY FOR SEVEN
YEARS,  ...  I WOULD SAY FIVE OR SIX YEARS."  WHEN PETITIONER RETURNED
IN APRIL OR MAY, 1919, "HE WAS A WRECK COMPARED TO WHAT HE WAS WHEN HE
WENT AWAY.  THE FALLOW'S MIND WAS EVIDENTLY UNBALANCED."  SYMPTOMS
SPECIFIED WERE WITHDRAWING TO HIMSELF; CRYING SPELLS; ALTERNATE PERIODS
OF NORMAL BEHAVIOR AND NONSENSICAL TALK; EXPRESSION OF FEARS THAT GOOD
FRIENDS WANTED "TO BEAT HIM UP"; SPITTING BLOOD AND REMARKING ABOUT IT
IN VULGAR TERMS.  ONCE PETITIONER SAID, "G - D - IT, I MUST BE A DOCTOR
JEKYLL AND MR. HYDE." 

O'NEILL TESTIFIED THESE SYMPTOMS AND THIS CONDITION CONTINUED
PRACTICALLY THE SAME FOR ABOUT FIVE YEARS.  IN HIS OPINION PETITIONER
WAS "COMPETENT AT TIMES AND OTHERS WAS INCOMPETENT."  THE INTERVALS
MIGHT BE "A COUPLE OF DAYS, A COUPLE OF MONTHS."  IN HIS NORMAL PERIODS
GALLOWAY "WOULD BE HIS OLD SELF  ...  ABSOLUTELY O.K." 

O'NEILL WAS DEFINITE IN RECALLING PETITIONER'S CONDITION AND HAVING
SEEN HIM FREQUENTLY IN 1919, CHIEFLY HOWEVER, AND BRIEFLY, ON THE
STREET DURING LUNCH HOUR.  HE WAS NOT SURE GALLOWAY WAS WORKING AND WAS
"SURPRISED HE GOT IN THE NAVY, I THINK IN THE NAVY OR IN THE GOVERNMENT
SERVICE." 

O'NEILL MAINTAINED HE SAW PETITIONER "RIGHT ON FROM THAT (1920) AT
TIMES."  BUT HIS RECOLLECTION OF DATES, NUMBER OF OPPORTUNITIES FOR
OBSERVATION, AND CONCRETE EVENTS WAS WHOLLY INDEFINITE.  HE WOULD FIX
NO ESTIMATE FOR THE NUMBER OF TIMES HE HAD SEEN PETITIONER:  "IN 1920 I
COULDN'T RECALL WHETHER IT WAS ONE OR A THOUSAND."  FOR LATER YEARS HE
WOULD NOT SAY WHETHER IT WAS "FIVE TIMES OR MORE OR LESS."  WHEN HE WAS
PINNED DOWN BY CROSSEXAMINATION, THE EFFECT OF HIS TESTIMONY WAS THAT
HE RECALLED PETITIONER CLEARLY IN 1919 "BECAUSE THERE WAS SUCH A VAST
CONTRAST IN THE MAN," BUT FOR LATER YEARS HE COULD GIVE LITTLE OR NO
DEFINITE INFORMATION.  THE EXCERPT FROM THE TESTIMONY SET FORTH IN THE
MARGIN  FN5  SHOWS THIS CONTRAST.  WE ALSO SUMMARIZE BELOW  FN6 OTHER
EVIDENCE WHICH EXPLAINS OR ILLUSTRATES THE VAGUENESS OF THE WITNESS'
RECOLLECTION FOR EVENTS AFTER 1919.  O'NEILL RECALLED ONE SPECIFIC
OCCASION AFTER 1919 WHEN PETITIONER RETURNED TO PHILADELPHIA, "AROUND
1920 OR 1921, BUT I COULDN'T BE SURE," TO TESTIFY IN A CRIMINAL
PROCEEDING.  HE ALSO SAID, "AFTER HE WAS AWAY FOR FIVE OR SIX YEARS, HE
CAME BACK TO PHILADELPHIA, BUT I WOULDN'T KNOW NOTHING ABOUT DATES ON
THAT.  HE WAS BACK IN PHILADELPHIA FOR FIVE OR SIX MONTHS OR SO, AND HE
WAS STILL JUST EVIDENTLY ALL RIGHT, AND THEN HE WOULD BE OFF." 

LT. COL. (CHAPLAIN) MATHEWS SAID HE OBSERVED A PRIVATE JOSEPH
GALLOWAY, WHO WAS A PRISONER FOR DESERTION AND A PATIENT IN THE MENTAL
WARD AT FORT MACARTHUR STATION HOSPITAL, CALIFORNIA, DURING A SIX WEEKS
PERIOD EARLY IN 1920.  THE CHAPLAIN'S TESTIMONY GIVES STRONG EVIDENCE
THE MAN HE OBSERVED WAS INSANE.  HOWEVER, THERE IS A FATAL WEAKNESS IN
THIS EVIDENCE.  IN HIS DIRECT TESTIMONY, WHICH WAS TAKEN BY DEPOSITION,
THE CHAPLAIN SAID HE WAS CERTAIN THAT THE SOLDIER WAS PETITIONER.  WHEN
CONFRONTED WITH THE UNDISPUTED FACT THAT PETITIONER WAS ON ACTIVE DUTY
IN THE NAVY DURING THE FIRST HALF OF 1920, THE WITNESS AT FIRST STATED
THAT HE MIGHT HAVE BEEN MISTAKEN AS TO THE TIME OF HIS OBSERVATION. 
SUBSEQUENTLY HE REASSERTED THE ACCURACY OF HIS ORIGINAL STATEMENT AS TO
THE TIME OF OBSERVATION, BUT ADMITTED THAT HE MIGHT HAVE BEEN MISTAKEN
IN BELIEVING THAT THE PATIENT-PRISONER WAS PETITIONER.  IN THIS
CONNECTION HE VOLUNTEERED THE STATEMENT, "MIGHT I ADD, SIR, THAT I
COULD NOT NOW IDENTIFY THAT SOLDIER IF I WERE TO MEET HIM FACE TO FACE,
AND THAT IS BECAUSE OF THE LONG LAPSE OF TIME."  THE PATIENT WHOM THE
WITNESS SAW WAS CONFINED TO HIS BED.  THE RECORD IS BARREN OF OTHER
EVIDENCE, WHETHER BY THE HOSPITAL'S OR THE ARMY'S RECORDS OR OTHERWISE,
TO SHOW THAT PETITIONER WAS EITHER PATIENT OR PRISONER AT FORT
MACARTHUR IN 1920 OR AT ANY OTHER TIME. 

COMMANDER PLATT TESTIFIED THAT PETITIONER CAUSED CONSIDERABLE TROUBLE
BY DISOBEDIENCE AND LEAVING SHIP WITHOUT PERMISSION DURING HIS NAVAL
SERVICE IN THE FIRST HALF OF 1920.  AFTER "REPEATED WARNINGS AND
PUNISHMENTS, LEADING TO COURTS MARTIAL," HE WAS SENTENCED TO A BAD
CONDUCT DISCHARGE. 

LT. COL. JAMES E. MATTHEWS (NOT THE CHAPLAIN) TESTIFIED BY DEPOSITION
WHICH PETITIONER'S ATTORNEY INTERRUPTED DR. WILDER'S TESTIMONY TO READ
INTO EVIDENCE.  THE WITNESS WAS GALLOWAY'S COMMANDING OFFICER FROM
EARLY 1921 TO THE SUMMER OF THAT YEAR, WHEN PETITIONER WAS TRANSFERRED
WITH OTHER SOLDIERS TO ANOTHER UNIT.  AT FIRST, COLONEL MATTHEWS
CONSIDERED MAKING PETITIONER A CORPORAL, BUT FOUND HIM UNRELIABLE AND
HAD TO DISCIPLINE HIM.  PETITIONER "DRANK CONSIDERABLY," WAS "WHAT WE
CALLED A BOLSHEVIK," DID NOT SEEM LOYAL, AND "ACTED AS IF HE WAS NOT
GETTING A SQUARE DEAL."  THE OFFICER CONCLUDED "HE WAS A MORAL PERVERT
AND PROBABLY USED NARCOTICS," BUT COULD NOT SECURE PROOF OF THIS. 
GALLOWAY WAS COURT-MARTIALED FOR PUBLIC DRUNKENNESS AND DISORDERLY
CONDUCT, SERVED A MONTH AT HARD LABOR, AND RETURNED TO ACTIVE DUTY.  AT
TIMES HE "WAS ONE OF THE VERY BEST SOLDIERS I HAD," AT OTHERS
UNDEPENDABLE.  HE WAS PHYSICALLY SOUND, ABLE TO DO HIS WORK, PERFORM
CLOSE ORDER DRILL, ETC., "VERY WELL."  HE HAD ALTERNATE PERIODS OF
GAIETY AND DEPRESSION, TALKED INCOHERENTLY AT TIMES, GAVE THE
IMPRESSION HE WOULD FIGHT READILY, BUT DID NOT RESENT ORDERS AND SEEMED
TO GET ALONG WELL WITH OTHER SOLDIERS.  THE OFFICER ATTRIBUTED
PETITIONER'S BEHAVIOR TO ALCOHOL AND NARCOTICS, AND IT OCCURRED TO HIM
AT NO TIME TO QUESTION HIS SANITY. 

DR. WILDER WAS THE KEY WITNESS.  HE DISCLAIMED SPECIALIZING IN MENTAL
DISEASE, BUT QUALIFIED AS HAVING GIVEN IT "SPECIAL ATTENTION."  HE
FIRST SAW PETITIONER SHORTLY BEFORE THE TRIAL, EXAMINED HIM "SEVERAL
TIMES."  HE CONCLUDED PETITIONER'S AILMENT "IS A SCHIZOPHRENIC BRANCH
OR FORM OF PRAECOX."  DR. WILDER HEARD THE TESTIMONY AND READ THE
DEPOSITIONS OF THE OTHER WITNESSES, AND EXAMINED THE DOCUMENTARY
EVIDENCE.  BASING HIS JUDGMENT UPON THIS MATERIAL, WITH INFERENCES
DRAWN FROM IT, HE CONCLUDED PETITIONER WAS BORN WITH "AN INHERENT
INSTABILITY," THOUGH HE REMAINED NORMAL UNTIL HE WENT TO FRANCE; BEGAN
THERE "TO BE SUBJECTED TO THE STRAIN OF MILITARY LIFE, THEN HE BEGAN TO
GO TO PIECES."  IN MAY, 1919, PETITIONER "WAS STILL SUFFERING FROM THE
ACUTENESS OF THE BREAKDOWN  ...  HE IS GOING DOWN HILL STILL, BUT THE
THING BEGAN WITH THE BREAKDOWN  ...  " PETITIONER WAS "DEFINITELY
INSANE, YES, SIR," IN 1920 AND "HAS BEEN INSANE AT ALL TIMES, AT LEAST
SINCE JULY, 1918, THE TIME OF THIS EPISODE ON THE MARNE"; THAT IS, "TO
THE POINT THAT HE WAS UNABLE TO ADAPT HIMSELF.  I DON'T MEAN HE HAS NOT
HAD MOMENTS WHEN HE COULD NOT PERFORM SOME ROUTINE TASKS," BUT "FROM AN
OCCUPATIONAL STANDPOINT  ...  HE HAS BEEN INSANE."  HE COULD FOLLOW "A
MERE MATTER OF ROUTINE," BUT WOULD HAVE NO INCENTIVE, WOULD NOT KEEP A
STEADY JOB, COME TO WORK ON TIME, OR DO ANYTHING HE DIDN'T WANT TO DO.
DR. WILDER POINTED TO PETITIONER'S WORK RECORD BEFORE HE ENTERED THE
SERVICE AND OBSERVED:  "AT NO TIME AFTER HE WENT INTO THE WAR DO WE
FIND HIM ABLE TO HOLD ANY KIND OF A JOB.  HE BROKE RIGHT DOWN."  HE
EXPLAINED PETITIONER'S ENLISTMENT IN THE NAVY AND LATER IN THE ARMY BY
SAYING, "IT WOULD HAVE BEEN NO TRICK AT ALL FOR A MAN WHO WAS
REASONABLY CONFORMING TO GET INTO THE SERVICE." 

HOWEVER, THE WITNESS KNEW "NOTHING WHATEVER EXCEPT HIS GETTING
MARRIED" ABOUT PETITIONER'S ACTIVITIES BETWEEN 1925 AND 1930, AND WHAT
HE KNEW OF THEM BETWEEN 1922 AND 1925 WAS BASED ENTIRELY ON O'NEILL'S
TESTIMONY AND A PAPER NOT OF RECORD HERE.  FN7  DR. WILDER AT FIRST
REGARDED KNOWLEDGE CONCERNING WHAT PETITIONER WAS DOING BETWEEN 1925
AND 1930 AS NOT ESSENTIAL.  "WE HAVE A CONTINUING DISEASE, QUITE
OBVIOUSLY BEGINNING DURING HIS MILITARY SERVICE, AND QUITE OBVIOUSLY
CONTINUING IN 1930, AND THE MINOR INCIDENTS DON'T SEEM TO ME----"
COUNSEL FOR THE GOVERNMENT INTERRUPTED TO INQUIRE, "WELL, IF HE WAS
CONTINUOUSLY EMPLOYED FOR EIGHT HOURS A DAY FROM 1925 TO 1930 WOULD
THAT HAVE ANY BEARING?"  THE WITNESS REPLIED, "IT WOULD HAVE A GREAT
DEAL."  UPON FURTHER QUESTIONING, HOWEVER, HE REVERTED TO HIS FIRST
POSITION, STATING IT WOULD NOT BE NECESSARY OR HELPFUL FOR HIM TO KNOW
WHAT PETITIONER WAS DOING FROM 1925 TO 1930:  "I TESTIFIED FROM THE
INFORMATION I HAD." 

                                 II. 

THIS, WE THINK, IS THE CRUX OF THE CASE AND DISTINGUISHES IT FROM THE
CASES ON WHICH PETITIONER HAS RELIED.  FN8  HIS BURDEN WAS TO PROVE
TOTAL AND PERMANENT DISABILITY AS OF A DATE NOT LATER THAN MAY 31,
1919.  HE HAS UNDERTAKEN TO DO THIS BY SHOWING INCIPIENCE OF MENTAL
DISABILITY SHORTLY BEFORE THAT TIME AND ITS CONTINUANCE AND PROGRESSION
THROUGHOUT THE SUCCEEDING YEARS.  HE HAS CLEARLY ESTABLISHED INCIDENCE
OF TOTAL AND PERMANENT DISABILITY AS OF SOME PERIOD PRIOR TO 1938, WHEN
HE BEGAN THIS SUIT.  FN9  FOR OUR PURPOSES THIS MAY BE TAKEN AS
MEDICALLY ESTABLISHED BY THE VETERANS' BUREAU EXAMINATION AND DIAGNOSIS
OF JULY, 1934.  FN10 

BUT IF THE RECORD IS TAKEN TO SHOW THAT SOME FORM OF MENTAL DISABILITY
EXISTED IN 1930, WHICH LATER BECAME TOTAL AND PERMANENT, PETITIONER'S
PROBLEM REMAINS TO DEMONSTRATE BY MORE THAN SPECULATIVE INFERENCE THAT
THIS CONDITION ITSELF BEGAN ON OR BEFORE MAY 31, 1919, AND CONTINUOUSLY
EXISTED OR PROGRESSED THROUGH THE INTERVENING YEARS TO 1930. 

TO SHOW ORIGIN BEFORE THE CRUCIAL DATE, HE GIVES EVIDENCE OF TWO
ABNORMAL INCIDENTS OCCURRING WHILE HE WAS IN FRANCE, ONE CREATING THE
DISTURBANCE BEFORE HE CAME NEAR THE FIGHTING FRONT, THE OTHER YELLING
THAT THE GERMANS WERE COMING WHEN HE WAS ON GUARD DUTY AT THE MARNE. 
THERE IS NO OTHER EVIDENCE OF ABNORMAL BEHAVIOR DURING HIS ENTIRE
SERVICE OF MORE THAN A YEAR ABROAD. 

THAT HE WAS COURT-MARTIALED FOR THESE SPORADIC ACTS AND BOUND AND
GAGGED FOR ONE DOES NOT PROVE HE WAS INSANE OR HAD THEN A GENERAL
BREAKDOWN IN "AN ALREADY FRAGILE MENTAL CONSTITUTION," WHICH THE
VICISSITUDES OF A LONGSHOREMAN'S LIFE HAD NOT BEEN ABLE TO CRACK. 

TO THESE TWO INCIDENTS PETITIONER ADDS THE TESTIMONY OF O'NEILL THAT
HE LOOKED AND ACTED LIKE A WRECK, COMPARED WITH HIS FORMER SELF, WHEN
HE RETURNED FROM FRANCE ABOUT A MONTH BEFORE THE CRUCIAL DATE, AND
O'NEILL'S VAGUE RECOLLECTIONS THAT THIS CONDITION CONTINUED THROUGH THE
NEXT TWO, THREE, FOUR, OR FIVE YEARS. 

O'NEILL'S TESTIMONY APPARENTLY TAKES NO ACCOUNT OF PETITIONER'S
HAVING SPENT 101 DAYS IN A HOSPITAL IN FRANCE WITH INFLUENZA JUST
BEFORE HE CAME HOME.  BUT, GIVEN THE UTMOST CREDENCE, AS IS REQUIRED,
IT DOES NO MORE THAN SHOW THAT PETITIONER WAS SUBJECT TO ALTERNATING
PERIODS OF GAIETY AND DEPRESSION FOR SOME INDEFINITE PERIOD AFTER HIS
RETURN, EXTENDING PERHAPS AS LATE AS 1922.  BUT BECAUSE OF ITS
VAGUENESS AS TO TIME, DATES, FREQUENCY OF OPPORTUNITY FOR OBSERVATION,
AND SPECIFIC INCIDENT, O'NEILL'S TESTIMONY CONCERNING THE PERIOD FROM
1922 TO 1925 IS HARDLY MORE THAN SPECULATIVE. 

WE HAVE THEN THE TWO INCIDENTS IN FRANCE, FOLLOWED BY O'NEILL'S
TESTIMONY OF PETITIONER'S CHANGED CONDITION IN 1919 AND ITS CONTINUANCE
TO 1922.  FN11  THERE IS ALSO THE TESTIMONY OF COMMANDER PLATT AND LT.
COL. JAMES E. MATTHEWS AS TO HIS SERVICE IN THE NAVY AND THE ARMY,
RESPECTIVELY, DURING 1920-1922.  NEITHER THOUGHT PETITIONER WAS INSANE
OR THAT HIS CONDUCT INDICATED INSANITY.  THEN FOLLOWS A CHASM OF EIGHT
YEARS.  THE ONLY EVIDENCE  FN12  WE HAVE CONCERNING THIS PERIOD IS THE
FACT THAT PETITIONER MARRIED HIS PRESENT GUARDIAN AT SOME TIME WITHIN
IT, AN ACT FROM WHICH IN THE LEGAL SENSE NO INFERENCE OF INSANITY CAN
BE DRAWN. 

THIS PERIOD WAS EIGHT YEARS OF CONTINUOUS INSANITY, ACCORDING TO THE
INFERENCE PETITIONER WOULD BE ALLOWED TO HAVE DRAWN.  IF SO, HE SHOULD
HAVE NO NEED OF INFERENCE.  INSANITY SO LONG AND CONTINUOUSLY SUSTAINED
DOES NOT HIDE ITSELF FROM THE EYES AND EARS OF WITNESSES.  FN13  THE
ASSIDUITY WHICH PRODUCED THE EVIDENCE OF TWO "CRAZY" INCIDENTS DURING A
YEAR AND A HALF IN FRANCE SHOULD PRODUCE ONE DURING EIGHT YEARS OR, FOR
THAT MATTER, FIVE YEARS IN THE UNITED STATES. 

INFERENCE IS CAPABLE OF BRIDGING MANY GAPS.  BUT NOT, IN THESE
CIRCUMSTANCES, ONE SO WIDE AND DEEP AS THIS.  KNOWLEDGE OF PETITIONER'S
ACTIVITIES AND BEHAVIOR FROM 1922 OR 1925 TO 1930 WAS PECULIARLY WITHIN
HIS KEN AND THAT OF HIS WIFE, WHO HAS LITIGATED THIS CAUSE IN HIS AND
PRESUMABLY, THOUGH INDIRECTLY, IN HER OWN BEHALF.  HIS WAS THE BURDEN
TO SHOW CONTINUOUS DISABILITY.  WHAT HE DID IN THIS TIME, OR DID NOT
DO, WAS VITAL TO HIS CASE.  APART FROM THE MERE FACT OF HIS MARRIAGE,
THE RECORD IS BLANK FOR FIVE YEARS AND ALMOST BLANK FOR EIGHT.  FOR ALL
THAT APPEARS, HE MAY HAVE WORKED FULL TIME AND CONTINUOUSLY FOR FIVE
AND PERHAPS FOR EIGHT, WITH ONLY A POSSIBLE SINGLE INTERRUPTION.  FN14 

NO FAVORABLE INFERENCE CAN BE DRAWN FROM THE OMISSION.  IT WAS NOT
ONE OF OVERSIGHT OR INABILITY TO SECURE PROOF.  THAT IS SHOWN BY THE
THOROUGHNESS WITH WHICH THE RECORD WAS PREPARED FOR ALL OTHER PERIODS,
BEFORE AND AFTER THIS ONE, AND BY THE FACT PETITIONER'S WIFE, THOUGH
SHE MARRIED HIM DURING THE PERIOD AND WAS AVAILABLE, DID NOT TESTIFY. 
THE ONLY REASONABLE CONCLUSION IS THAT PETITIONER, OR THOSE WHO ACTED
FOR HIM, DELIBERATELY CHOSE, FOR REASONS NO DOUBT CONSIDERED SUFFICIENT
(AND WHICH WE DO NOT CRITICIZE, SINCE SUCH MATTERS, INCLUDING TACTICAL
ONES, ARE FOR THE JUDGMENT OF COUNSEL), TO PRESENT NO EVIDENCE OR
PERHAPS TO WITHHOLD EVIDENCE READILY AVAILABLE CONCERNING THIS LONG
INTERVAL, AND TO TRUST TO THE GENIUS OF EXPERT MEDICAL INFERENCE AND
JUDICIAL LAXITY TO BRIDGE THIS CANYON. 

IN THE CIRCUMSTANCES EXHIBITED, THE FORMER IS NOT EQUAL TO THE FEAT,
AND THE LATTER WILL NOT PERMIT IT.  NO CASE HAS BEEN CITED AND NONE HAS
BEEN FOUND IN WHICH INFERENCE, HOWEVER EXPERT, HAS BEEN PERMITTED TO
MAKE SO BROAD A LEAP AND TAKE THE PLACE OF EVIDENCE WHICH, ACCORDING TO
ALL REASON, MUST HAVE BEEN AT HAND.  FN15  TO ALLOW THIS WOULD PERMIT
THE SUBSTITUTION OF INFERENCE, TENUOUS AT BEST, NOT MERELY FOR EVIDENCE
ABSENT BECAUSE IMPOSSIBLE OR DIFFICULT TO SECURE, BUT FOR EVIDENCE
DISCLOSED TO BE AVAILABLE AND NOT PRODUCED.  THIS WOULD SUBSTITUTE
SPECULATION FOR PROOF.  FURTHERMORE, THE INFERENCE WOULD BE MORE
PLAUSIBLE PERHAPS IF THE EVIDENCE OF INSANITY AS OF MAY, 1919, WERE
STRONGER THAN IT IS, SUCH FOR INSTANCE AS CHAPLAIN MATHEWS' TESTIMONY
WOULD HAVE FURNISHED IF IT COULD BE TAKEN AS APPLYING TO PETITIONER. 
BUT, ON THIS RECORD, THE EVIDENCE OF INSANITY AS OF THAT TIME IS THIN
AT BEST, IF IT CAN BE REGARDED AS AT ALL MORE THAN SPECULATIVE.  FN16 

BEYOND THIS, THERE IS NOTHING TO SHOW TOTALITY OR PERMANENCE.  THESE
COME ONLY BY WHAT THE CIRCUIT COURT OF APPEALS RIGHTLY CHARACTERIZED AS
"LONG-RANGE RETROACTIVE DIAGNOSIS."  THAT MIGHT SUFFICE,
NOTWITHSTANDING THIS CRUCIAL INFERENCE WAS A MATTER OF OPINION, IF
THERE WERE FACTUAL EVIDENCE OVER WHICH THE MEDICAL EYE COULD TRAVEL AND
FIND CONTINUITY THROUGH THE INTERVENING YEARS.  CF. HALLIDAY V. UNITED
STATES, SUPRA.  BUT EIGHT YEARS ARE TOO MANY TO PERMIT IT TO SKIP, WHEN
THE BRIDGEHEADS (IF THE FIGURE MAY BE CHANGED) AT EACH END ARE NO
STRONGER THAN THEY ARE HERE, AND WHEN THE SEER FIRST DENIES, THEN
ADMITS, THEN DENIES AGAIN, THAT WHAT TOOK PLACE IN THIS TIME WOULD MAKE
"A GREAT DEAL" OF DIFFERENCE IN WHAT HE SAW.  EXPERT MEDICAL INFERENCE
RIGHTLY CAN DO MUCH.  BUT WE THINK THE FEAT ATTEMPTED HERE TOO LARGE
FOR ITS ACCOMPLISHMENT. 

THE CIRCUIT COURT OF APPEALS THOUGHT PETITIONER'S ENLISTMENTS AND
SERVICE IN THE NAVY AND ARMY IN 1920-1922 WERE IN THEMSELVES "SUCH
PHYSICAL FACTS AS REFUTE ANY REASONABLE INFERENCES WHICH MAY BE DRAWN
FROM THE EVIDENCE HERE PRESENTED BY HIM THAT HE WAS TOTALLY AND
PERMANENTLY DISABLED DURING THE LIFE OF HIS POLICY."  130 F.2D 471; CF.
ATKINS V. UNITED STATES, 63 APP. D.C. 164, 70 F.2D 768, 771; UNITED
STATES V. LE DUC, 48 F.2D 789, 793(C.C.A.).  THE OPINION ALSO
SUMMARIZES AND APPARENTLY TAKES ACCOUNT OF THE EVIDENCE PRESENTED ON
BEHALF OF THE GOVERNMENT.  130 F.2D 469, 470.  IN VIEW OF THE GROUND
UPON WHICH WE HAVE PLACED THE DECISION, WE NEED NOT CONSIDER THESE
MATTERS. 

                        III. 

WHAT HAS BEEN SAID DISPOSES OF THE CASE AS THE PARTIES HAVE MADE IT.
FOR THAT REASON PERHAPS NOTHING MORE NEED BE SAID.  BUT OBJECTION HAS
BEEN ADVANCED THAT, IN SOME MANNER NOT WHOLLY CLEAR, THE DIRECTED
VERDICT PRACTICE OFFENDS THE SEVENTH AMENDMENT. 

IT MAY BE NOTED, FIRST, THAT THE AMENDMENT HAS NO APPLICATION OF ITS
OWN FORCE TO THIS CASE.  THE SUIT IS ONE TO ENFORCE A MONETARY CLAIM
AGAINST THE UNITED STATES.  IT HARDLY CAN BE MAINTAINED THAT UNDER THE
COMMON LAW IN 1791 JURY TRIAL WAS A MATTER OF RIGHT FOR PERSONS
ASSERTING CLAIMS AGAINST THE SOVEREIGN.  FN17  WHATEVER FORCE THE
AMENDMENT HAS THEREFORE IS DERIVED BECAUSE CONGRESS, IN THE LEGISLATION
CITED,  FN18  HAS MADE IT APPLICABLE.  EVEN SO, THE OBJECTION MADE ON
THE SCORE OF ITS REQUIREMENTS IS UNTENABLE. 

IF THE INTENTION IS TO CLAIM GENERALLY THAT THE AMENDMENT DEPRIVES
THE FEDERAL COURTS OF POWER TO DIRECT A VERDICT FOR INSUFFICIENCY OF
EVIDENCE, THE SHORT ANSWER IS THE CONTENTION HAS BEEN FORECLOSED BY
REPEATED DECISIONS MADE HERE CONSISTENTLY FOR NEARLY A CENTURY.  FN19
MORE RECENTLY THE PRACTICE HAS BEEN APPROVED EXPLICITLY IN THE
PROMULGATION OF THE FEDERAL RULES OF CIVIL PROCEDURE.  CF. RULE 50;
BERRY V. UNITED STATES, 312 U.S. 450.  THE OBJECTION THEREFORE COMES
TOO LATE. 

FURTHERMORE, THE ARGUMENT FROM HISTORY IS NOT CONVINCING.  IT IS NOT
THAT "THE RULES OF THE COMMON LAW" IN 1791 DEPRIVED TRIAL COURTS OF
POWER TO WITHDRAW CASES FROM THE JURY, BECAUSE NOT MADE OUT, OR
APPELLATE COURTS OF POWER TO REVIEW SUCH DETERMINATIONS.  THE JURY WAS
NOT ABSOLUTE MASTER OF FACT IN 1791.  THEN AS NOW COURTS EXCLUDED
EVIDENCE FOR IRRELEVANCY AND RELEVANT PROOF FOR OTHER REASONS N20.  THE
ARGUMENT CONCEDES THEY WEIGHED THE EVIDENCE, NOT ONLY PIECEMEAL BUT IN
TOTO FOR SUBMISSION TO THE JURY, BY AT LEAST TWO PROCEDURES, THE
DEMURRER TO THE EVIDENCE AND THE MOTION FOR A NEW TRIAL.  THE OBJECTION
IS NOT THEREFORE TO THE BASIC THING,  FN21  WHICH IS THE POWER OF THE
COURT TO WITHHOLD CASES FROM THE JURY OR SET ASIDE THE VERDICT FOR
INSUFFICIENCY OF THE EVIDENCE.  IT IS RATHER TO INCIDENTAL OR
COLLATERAL EFFECTS, NAMELY, THAT THE DIRECTED VERDICT AS NOW
ADMINISTERED DIFFERS FROM BOTH THOSE PROCEDURES BECAUSE, ON THE ONE
HAND, ALLEGEDLY HIGHER STANDARDS OF PROOF ARE REQUIRED AND, ON THE
OTHER, DIFFERENT CONSEQUENCES FOLLOW AS TO FURTHER MAINTENANCE OF THE
LITIGATION.  APART FROM THE STANDARDS OF PROOF, THE ARGUMENT APPEARS TO
URGE THAT IN 1791, A LITIGANT COULD CHALLENGE HIS OPPONENT'S EVIDENCE,
EITHER BY THE DEMURRER, WHICH WHEN DETERMINED ENDED THE LITIGATION, OR
BY MOTION FOR A NEW TRIAL WHICH, IF SUCCESSFUL, GAVE THE ADVERSARY
ANOTHER CHANCE TO PROVE HIS CASE; AND THEREFORE THE AMENDMENT EXCLUDED
ANY CHALLENGE TO WHICH ONE OR THE OTHER OF THESE CONSEQUENCES DOES NOT
ATTACH.    THE AMENDMENT DID NOT BIND THE FEDERAL COURTS TO THE EXACT
PROCEDURAL INCIDENTS OR DETAILS OF JURY TRIAL ACCORDING TO THE COMMON
LAW IN 1791, ANY MORE THAN IT TIED THEM TO THE COMMON-LAW SYSTEM OF
PLEADING OR THE SPECIFIC RULES OF EVIDENCE THEN PREVAILING.  FN22  NOR
WERE "THE RULES OF THE COMMON LAW" THEN PREVALENT, INCLUDING THOSE
RELATING TO THE PROCEDURE BY WHICH THE JUDGE REGULATED THE JURY'S ROLE
ON QUESTIONS OF FACT, CRYSTALLIZED IN A FIXED AND IMMUTABLE SYSTEM.  ON
THE CONTRARY, THEY WERE CONSTANTLY CHANGING AND DEVELOPING DURING THE
LATE EIGHTEENTH AND EARLY NINETEENTH CENTURIES.  FN23  IN 1791 THIS
PROCESS ALREADY HAD RESULTED IN WIDELY DIVERGENT COMMON-LAW RULES ON
PROCEDURAL MATTERS AMONG THE STATES, AND BETWEEN THEM AND ENGLAND. 
FN24  AND NONE OF THE CONTEMPORANEOUS RULES REGARDING JUDICIAL CONTROL
OF THE EVIDENCE GOING TO JURIES OR ITS SUFFICIENCY TO SUPPORT A VERDICT
HAD REACHED ANY PRECISE, MUCH LESS FINAL, FORM.  FN25  IN ADDITION, THE
PASSAGE OF TIME HAS OBSCURED MUCH OF THE PROCEDURE WHICH THEN MAY HAVE
HAD MORE OR LESS DEFINITE FORM, EVEN FOR HISTORICAL PURPOSES.  FN26 

THIS DIFFICULTY, NO DOUBT, ACCOUNTS FOR THE AMORPHOUS CHARACTER OF
THE OBJECTION NOW ADVANCED, WHICH INSISTS, NOT THAT ANY SINGLE ONE OF
THE FEATURES CRITICIZED, BUT THAT THE CUMULATIVE TOTAL OR THE
ALTERNATIVE EFFECT OF ALL, WAS EMBODIED IN THE AMENDMENT.  THE MORE
LOGICAL CONCLUSION, WE THINK, AND THE ONE WHICH BOTH HISTORY AND THE
PREVIOUS DECISIONS HERE SUPPORT, IS THAT THE AMENDMENT WAS DESIGNED TO
PRESERVE THE BASIC INSTITUTION OF JURY TRIAL IN ONLY ITS MOST
FUNDAMENTAL ELEMENTS, NOT THE GREAT MASS OF PROCEDURAL FORMS AND
DETAILS, VARYING EVEN THEN SO WIDELY AMONG COMMON-LAW JURISDICTIONS. 
FN27 

APART FROM THE UNCERTAINTY AND THE VARIETY OF CONCLUSION WHICH
FOLLOWS FROM AN EFFORT AT PURELY HISTORICAL ACCURACY, THE CONSEQUENCES
FLOWING FROM THE VIEW ASSERTED ARE SUFFICIENT TO REFUTE IT. IT MAY BE
DOUBTED THAT THE AMENDMENT REQUIRES CHALLENGE TO AN OPPONENT'S CASE TO
BE MADE WITHOUT REFERENCE TO THE MERITS OF ONE'S OWN AND AT THE PRICE
OF ALL OPPORTUNITY TO HAVE IT CONSIDERED.  ON THE OTHER HAND, THERE IS
EQUAL ROOM FOR DISBELIEVING IT COMPELS ENDLESS REPETITION OF LITIGATION
AND UNLIMITED CHANCE, BY EDUCATION GAINED AT THE OPPOSING PARTY'S
EXPENSE, FOR PERFECTING A CASE AT OTHER TRIALS.  THE ESSENTIAL
INCONSISTENCY OF THESE ALTERNATIVES WOULD SEEM SUFFICIENT TO REFUTE
THAT EITHER OR BOTH, TO THE EXCLUSION OF ALL OTHERS, RECEIVED
CONSTITUTIONAL SANCTITY BY THE AMENDMENT'S FORCE.  THE FIRST
ALTERNATIVE, DRAWN FROM THE DEMURRER TO THE EVIDENCE, ATTRIBUTES TO THE
AMENDMENT THE EFFECT OF FORCING ONE ADMISSION BECAUSE ANOTHER AND AN
ENTIRELY DIFFERENT ONE IS MADE,  FN28  AND THEREBY COMPELS CONCLUSION
OF THE LITIGATION ONCE AND FOR ALL.  THE TRUE EFFECT OF IMPOSING SUCH A
RISK WOULD NOT BE TO GUARANTEE THE PLAINTIFF A JURY TRIAL.  IT WOULD BE
RATHER TO DEPRIVE THE DEFENDANT (OR THE PLAINTIFF IF HE WERE THE
CHALLENGER) OF THAT RIGHT; OR, IF NOT THAT, THEN OF THE RIGHT TO
CHALLENGE THE LEGAL SUFFICIENCY OF THE OPPOSING CASE.  THE AMENDMENT
WAS NOT FRAMED OR ADOPTED TO DEPRIVE EITHER PARTY OF EITHER RIGHT.  IT
IS IMPARTIAL IN ITS GUARANTY OF BOTH.  TO POSIT ASSERTION OF ONE UPON
SACRIFICE OF THE OTHER WOULD DILUTE AND DISTORT THE FULL PROTECTION
INTENDED.  THE ADMITTED VALIDITY OF THE PRACTICE ON THE MOTION FOR A
NEW TRIAL GOES FAR TO DEMONSTRATE THIS.  FN29  IT NEGATIVES ANY IDEA
THAT THE CHALLENGE MUST BE MADE AT SUCH A RISK AS THE DEMURRER
IMPOSED.  AS FOR THE OTHER ALTERNATIVE, IT IS NOT URGED THAT THE
AMENDMENT GUARANTEES ANOTHER TRIAL WHENEVER CHALLENGE TO THE
SUFFICIENCY OF EVIDENCE IS SUSTAINED.  CF. BERRY V. UNITED STATES,
SUPRA.  THAT ARGUMENT, IN TURN, IS PRECLUDED BY THE PRACTICE ON
DEMURRER TO THE EVIDENCE. 

EACH OF THE CLASSICAL MODES OF CHALLENGE, THEREFORE, DISPROVES THE
NOTION THAT THE CHARACTERISTIC FEATURE OF THE OTHER, FOR EFFECT UPON
CONTINUING THE LITIGATION, BECAME A PART OF THE SEVENTH AMENDMENT'S
GUARANTY TO THE EXCLUSION OF ALL OTHERS.  THAT GUARANTY DID NOT
INCORPORATE CONFLICTING CONSTITUTIONAL POLICIES, THAT CHALLENGE TO AN
OPPOSING CASE MUST BE MADE WITH THE EFFECT OF TERMINATING THE
LITIGATION FINALLY AND, AT THE SAME TIME, WITH THE OPPOSITE EFFECT OF
REQUIRING ANOTHER TRIAL.  ALTERNATIVES SO CONTRADICTORY GIVE ROOM, NOT
FOR THE INFERENCE THAT ONE OR THE OTHER IS REQUIRED, BUT RATHER FOR THE
VIEW THAT NEITHER IS ESSENTIAL.  FN30 

FINALLY, THE OBJECTION APPEARS TO BE DIRECTED GENERALLY AT THE
STANDARDS OF PROOF JUDGES HAVE REQUIRED FOR SUBMISSION OF EVIDENCE TO
THE JURY.  BUT STANDARDS, CONTRARY TO THE OBJECTION'S ASSUMPTION,
CANNOT BE FRAMED WHOLESALE FOR THE GREAT VARIETY OF SITUATIONS IN
RESPECT TO WHICH THE QUESTION ARISES.  FN31  NOR IS THE MATTER GREATLY
AIDED BY SUBSTITUTING ONE GENERAL FORMULA FOR ANOTHER.  IT HARDLY
AFFORDS HELP TO INSIST UPON "SUBSTANTIAL EVIDENCE" RATHER THAN "SOME
EVIDENCE" OR "ANY EVIDENCE," OR VICE VERSA.  THE MATTER IS ESSENTIALLY
ONE TO BE WORKED OUT IN PARTICULAR SITUATIONS AND FOR PARTICULAR TYPES
OF CASES.  WHATEVER MAY BE THE GENERAL FORMULATION, THE ESSENTIAL
REQUIREMENT IS THAT MERE SPECULATION BE NOT ALLOWED TO DO DUTY FOR
PROBATIVE FACTS, AFTER MAKING DUE ALLOWANCE FOR ALL REASONABLY POSSIBLE
INFERENCES FAVORING THE PARTY WHOSE CASE IS ATTACKED.  THE MERE
DIFFERENCE IN LABELS USED TO DESCRIBE THIS STANDARD, WHETHER IT IS
APPLIED UNDER THE DEMURRER TO THE EVIDENCE  FN32  OR ON MOTION FOR A
DIRECTED VERDICT, CANNOT AMOUNT TO A DEPARTURE FROM "THE RULES OF THE
COMMON LAW" WHICH THE AMENDMENT REQUIRES TO BE FOLLOWED.  FN33 IF THERE
IS ABUSE IN THIS RESPECT, THE OBVIOUS REMEDY IS BY CORRECTION ON
APPELLATE REVIEW. 

JUDGED BY THIS REQUIREMENT, OR BY ANY STANDARD OTHER THAN SHEER
SPECULATION, WE ARE UNABLE TO CONCLUDE THAT ONE WHOSE BURDEN, BY THE
NATURE OF HIS CLAIM, IS TO SHOW CONTINUING AND TOTAL DISABILITY FOR
NEARLY TWENTY YEARS SUPPLIES THE ESSENTIAL PROOF OF CONTINUITY WHEN HE
WHOLLY OMITS TO SHOW HIS WHEREABOUTS, ACTIVITIES OR CONDITION FOR FIVE
YEARS, ALTHOUGH THE RECORD DISCLOSES EVIDENCE MUST HAVE BEEN AVAILABLE,
AND, FURTHER, THROWS NO LIGHT UPON THREE ADDITIONAL YEARS, EXCEPT FOR
ONE VAGUELY DESCRIBED AND DATED VISIT TO HIS FORMER HOME.  NOTHING IN
THE SEVENTH AMENDMENT REQUIRES IT SHOULD BE ALLOWED TO JOIN FORCES WITH
THE JURY SYSTEM TO BRING ABOUT SUCH A RESULT.  THAT GUARANTY REQUIRES
THAT THE JURY BE ALLOWED TO MAKE REASONABLE INFERENCES FROM FACTS
PROVEN IN EVIDENCE HAVING A REASONABLE TENDENCY TO SUSTAIN THEM.  IT
PERMITS EXPERT OPINION TO HAVE THE FORCE OF FACT WHEN BASED ON FACTS
WHICH SUSTAIN IT.  BUT IT DOES NOT REQUIRE THAT EXPERTS OR THE JURY BE
PERMITTED TO MAKE INFERENCES FROM THE WITHHOLDING OF CRUCIAL FACTS,
FAVORABLE IN THEIR EFFECTS TO THE PARTY WHO HAS THE EVIDENCE OF THEM IN
HIS PECULIAR KNOWLEDGE AND POSSESSION, BUT ELECTS TO KEEP IT SO.  THE
WORDS "TOTAL AND PERMANENT" ARE THE STATUTE'S, NOT OUR OWN.  THEY MEAN
SOMETHING MORE THAN INCIPIENT OR OCCASIONAL DISABILITY.  WE HARDLY NEED
ADD THAT WE GIVE FULL CREDENCE TO ALL OF THE TESTIMONY.  BUT THAT
CANNOT CURE ITS INHERENT VAGUENESS OR SUPPLY ESSENTIAL ELEMENTS OMITTED
OR WITHHELD. 

ACCORDINGLY, THE JUDGMENT IS AFFIRMED. 

FN1  THE CONTRACT WAS ISSUED PURSUANT TO THE WAR RISK INSURANCE ACT
AND INSURED AGAINST DEATH OR TOTAL PERMANENT DISABILITY.  (ACT OF OCT.
6, 1917, C. 105, SEC. 400, 40 STAT. 398, 409.)  PURSUANT TO STATUTORY
AUTHORITY (ACT OF MAY 20, 1918, C. 77, SEC. 13, 40 STAT. 555), T.D. 20
W.R., PROMULGATED MARCH 9, 1918, PROVIDED: 

"ANY IMPAIRMENT OF MIND OR BODY WHICH RENDERS IT IMPOSSIBLE FOR THE
DISABLED PERSON TO FOLLOW CONTINUOUSLY ANY SUBSTANTIALLY GAINFUL
OCCUPATION SHALL BE DEEMED  ...  TO BE TOTAL DISABILITY. 

"TOTAL DISABILITY SHALL BE DEEMED TO BE PERMANENT WHENEVER IT IS
FOUNDED UPON CONDITIONS WHICH RENDER IT REASONABLY CERTAIN THAT IT WILL
CONTINUE THROUGHOUT THE LIFE OF THE PERSON SUFFERING FROM IT.  ...  "
(REGULATIONS AND PROCEDURE, U.S. VETERANS BUREAU, PART I, P. 9.) 

FN2  SEE, HOWEVER, PART III, INFRA. 

FN3  THE RECORD DOES NOT SHOW WHETHER THIS EMPLOYMENT WAS STEADY AND
CONTINUOUS OR WAS SPOTTY AND ERRATIC.  BUT THERE IS NO CONTENTION
PETITIONER'S BEHAVIOR WAS ABNORMAL BEFORE HE ARRIVED IN FRANCE IN
APRIL, 1918. 

FN4  WELLS HEARD OF ANOTHER INCIDENT AT MONTHUREL IN JUNE, BUT HIS
TESTIMONY CONCERNING THIS WAS EXCLUDED AS HEARSAY. 

FN5  "X CAN YOU TELL US APPROXIMATELY HOW MANY TIMES YOU SAW HIM IN
1919? 

"A.  NO; I SEEN HIM SO OFTEN THAT IT WOULD BE HARD TO GIVE ANY
ESTIMATE. 

"X AND THE SAME GOES FOR 1920? 

"A.  I WOULDN'T BE SURE ABOUT 1920.  I REMEMBER HIM MORE WHEN HE
FIRST CAME HOME BECAUSE THERE WAS SUCH A VAST CONTRAST IN THE MAN. 
OTHERWISE, IF NOTHING UNUSUAL HAPPENED, I WOULDN'T PROBABLY RECALL HIM
AT ALL, YOU KNOW, THAT IS, RECALL THE PARTICULAR TIME AND ALL. 

"X WELL, DO YOU RECALL HIM AT ALL IN 1920? 

"A.  I CAN'T SAY. 

"X AND COULD YOU SWEAR WHETHER OR NOT YOU EVER SAW HIM IN 1921? 

"A.  I THINK I SEEN HIM BOTH IN 1921 AND 1920 AND 1921 AND RIGHT ON.
I MIGHT NOT SEE HIM FOR A FEW WEEKS OR MONTHS AT A TIME, BUT I THINK I
SAW HIM A FEW TIMES IN ALL THE YEARS RIGHT UP TO, AS I SAY, AT LEAST
FIVE YEARS AFTER. 

"X CAN YOU GIVE US AN ESTIMATE AS TO THE NUMBER OF TIMES YOU SAW HIM
IN 1920? 

"A.  NO, I WOULD NOT. 

"X WAS IT MORE THAN FIVE TIMES OR LESS? 

"A.  IN 1920 I COULDN'T RECALL WHETHER IT WAS ONE OR A THOUSAND.  THE
TIME I RECALL HIM WELL IS WHEN HE FIRST COME HOME, BUT I KNOW THAT I
SEEN HIM RIGHT ON FROM THAT AT TIMES. 

"X AND THE SAME GOES FOR 1921, 1922, 1923 AND 1924? 

"A.  I WOULD SAY FOR FIVE YEARS AFTERWARDS, BUT I DON'T KNOW JUST
WHEN OR HOW OFTEN I SEEN HIM EXCEPT WHEN HE FIRST COME HOME FOR THE
FIRST COUPLE OF MONTHS. 

"X BUT FOR YEARS AFTER HIS RETURN YOU COULDN'T SAY DEFINITELY WHETHER
YOU SAW HIM FIVE TIMES OR MORE OR LESS, COULD YOU? 

"A.  NO, BECAUSE IT WAS A THING THAT THERE WAS A VAST CONTRAST WHEN
HE FIRST COME HOME AND EVERYBODY NOTICED IT AND REMARKED ABOUT IT AND
IT WAS MORE LIABLE TO BE REMEMBERED.  YOU COULD ASK ME ABOUT SOME MORE
FRIENDS I KNEW DURING THOSE YEARS AND I WOULDN'T KNOW EXCEPT THERE WAS
SOMETHING UNUSUAL." 

FN6  PETITIONER'S OWN EVIDENCE SHOWS WITHOUT DISPUTE HE WAS ON ACTIVE
DUTY IN THE NAVY FROM JANUARY 15, 1920, TO JULY OF THAT YEAR, AND IN
THE ARMY FROM DECEMBER, 1920, TO MAY 6, 1922.  AS IS NOTED IN THE TEXT,
O'NEILL WAS NOT SURE HE WAS WORKING AND "WAS SURPRISED HE GOT IN THE
NAVY, I THINK IN THE NAVY OR IN THE GOVERNMENT SERVICE."  HE ONLY
"HEARD SOME TALK" OF PETITIONER'S HAVING REENLISTED IN THE ARMY, BUT
"IF IT WAS THE FACT, I WOULD BE SURPRISED THAT HE COULD DO IT OWING TO
HIS MENTAL CONDITION."  O'NEILL WAS NOT CERTAIN THAT HE SAW GALLOWAY IN
UNIFORM AFTER THE FIRST WEEK OF HIS RETURN TO PHILADELPHIA FROM
OVERSEAS, ALTHOUGH HE SAID HE SAW PETITIONER DURING "THE PERIODS OF
THOSE REENLISTMENTS  ...  BUT I CAN'T RECALL ABOUT IT." 

FN7  IT IS TO BE NOTED THE WITNESS DID NOT REFER TO CHAPLAIN MATHEWS'
TESTIMONY. 

FN8  NONE OF THEM EXHIBITS A PERIOD OF COMPARABLE LENGTH AS TO WHICH
EVIDENCE IS WHOLLY LACKING AND UNDER CIRCUMSTANCES WHICH PRECLUDE
INFERENCE THE OMISSION WAS UNINTENTIONAL. 

FN9  HE HAS NOT ESTABLISHED A FIXED DATE AT WHICH CONTEMPORANEOUS
MEDICAL EXAMINATION, BOTH PHYSICAL AND MENTAL, ESTABLISHES TOTALITY AND
PERMANENCE PRIOR TO DR. WILDER'S EXAMINATIONS IN 1941. 

DR. WILDER TESTIFIED THAT ON THE EVIDENCE CONCERNING PETITIONER'S
BEHAVIOR AT THE TIME OF HIS DISCHARGE IN 1919, AND WITHOUT REFERENCE TO
THE TESTIMONY AS TO LATER CONDUCT, INCLUDING O'NEILL'S, HE WOULD
RESERVE HIS OPINION ON WHETHER PETITIONER WAS THEN "CRAZY" - "I
WOULDN'T HAVE ENOUGH - " 

FN10  THE PREVIOUS EXAMINATIONS OF 1930 AND 1931 SHOW POSSIBILITY OF
MENTAL DISEASE IN THE ONE CASE AND EXISTENCE OF PSYCHOSIS WITH OTHER
DISEASE, ORGANIC IN CHARACTER BUT WITH TYPE UNDETERMINED, IN THE
OTHER.  THESE TWO EXAMINATIONS WITHOUT MORE DO NOT PROVE EXISTENCE OF
TOTAL AND PERMANENT DISABILITY; ON THE CONTRARY, THEY GO FAR TOWARD
SHOWING IT COULD NOT BE ESTABLISHED THEN MEDICALLY. 

THE 1930 DIAGNOSIS SHOWS ONLY THAT THE EXAMINER REGARDED PETITIONER
AS A MORON OF LOW GRADE, AND RECOMMENDED HE BE OBSERVED FOR SIMPLE
DEMENTIA PRAECOX.  DR. WILDER FOUND NO EVIDENCE IN 1941 THAT PETITIONER
WAS A MORON.  THE 1931 EXAMINATION IS EVEN LESS CONCLUSIVE IN ONE
RESPECT, NAMELY, THAT "PSYCHOSIS" TAKES THE PLACE OF MORONIC STATUS. 
DR. WILDER ALSO DISAGREED WITH THIS DIAGNOSIS.  HOWEVER, THIS
EXAMINATION FIRST INDICATES EXISTENCE OF ORGANIC NERVOUS DISEASE.  NOT
UNTIL THE 1934 DIAGNOSIS IS THERE ONE WHICH MIGHT BE REGARDED AS
SHOWING POSSIBLE TOTAL AND PERMANENT DISABILITY BY MEDICAL EVIDENCE
CONTEMPORANEOUS WITH THE FACT. 

FN11  CHAPLAIN MATHEWS' TESTIMONY WOULD BE HIGHLY PROBATIVE OF
INSANITY EXISTING EARLY IN 1920, IF PETITIONER WERE SUFFICIENTLY
IDENTIFIED AS ITS SUBJECT.  HOWEVER, THE BARE INFERENCE OF IDENTITY
WHICH MIGHT OTHERWISE BE DRAWN FROM THE MERE IDENTITY OF NAMES CANNOT
BE MADE REASONABLY, IN VIEW OF ITS OVERWHELMING CONTRADICTION BY OTHER
EVIDENCE PRESENTED BY PETITIONER AND THE FAILURE TO PRODUCE RECORDS
FROM FORT MACARTHUR HOSPITAL OR THE ARMY OR FROM PERSONS WHO KNEW THE
FACT THAT PETITIONER HAD BEEN THERE AT ANY TIME.  THE OMISSION
ELOQUENTLY TESTIFIES, IN A MANNER WHICH NO INFERENCE COULD OVERCOME,
THAT PETITIONER NEVER WAS THERE.  THE CHAPLAIN'S TESTIMONY THEREFORE
SHOULD HAVE BEEN STRICKEN, HAD THE CASE GONE TO THE JURY, AND
PETITIONER CAN DERIVE NO AID FROM IT HERE.    TANIKAWA, IT MAY BE
RECALLED, DID NOT PROFESS TO HAVE SEEN PETITIONER BETWEEN OCTOBER,
1918, AND 1936. 

FN12  APART FROM O'NEILL'S VAGUE RECOLLECTION OF PETITIONER'S RETURN
TO PHILADELPHIA ON ONE OCCASION. 

FN13  THE ONLY ATTEMPT TO EXPLAIN THE ABSENCE OF TESTIMONY CONCERNING
THE PERIOD FROM 1922 TO 1930 IS MADE BY COUNSEL IN THE REPLY BRIEF:
"THE INSURED, IT WILL BE OBSERVED, WAS NEVER APPREHENDED AFTER HIS
DESERTION FROM THE ARMY IN 1922.  IT IS ONLY REASONABLE THAT A PERSON
WITH THE STATUS OF A DESERTER AT LARGE  ...  , WHOSE MIND WAS IN THE
CONDITION OF THAT OF THIS INSURED, WOULD ABSENT HIMSELF FROM THOSE WITH
WHOM HE WOULD USUALLY ASSOCIATE BECAUSE OF FEAR OF APPREHENSION AND
PUNISHMENT.  HIS MENTAL CONDITION  ...  AT THE TIME OF TRIAL  ...
CLEARLY SHOWS THAT HE COULD NOT HAVE TESTIFIED.  ...  A LACK OF
TESTIMONY FROM 1922 TO 1930 IS THUS EXPLAINED, AND THE JURY COULD WELL
INFER THAT ONLY THE THEN (1941?)  ADMITTEDLY INSANE INSURED WAS IN A
POSITION TO KNOW WHERE HE WAS AND WHAT HE WAS DOING DURING THESE YEARS;
AS HE HAD LOST HIS MENTAL FACULTIES, THE REASON FOR LACK OF PROOF
DURING THESE YEARS IS APPARENT." 

THE "EXPLANATION" IS OBVIOUSLY UNTENABLE.  IT IGNORES THE ONE FACT
PROVED WITH RELATION TO THE PERIOD, THAT PETITIONER WAS MARRIED DURING
IT.  HIS WIFE WAS NOMINALLY A PARTY TO THE SUIT, AND OBVIOUSLY
AVAILABLE AS A WITNESS.  IT DISREGARDS THE FACT PETITIONER CONTINUED IN
THE STATUS OF DESERTER AFTER 1930, YET PRODUCED EVIDENCE RELATING TO
THE PERIOD FROM THAT TIME ON.  IT ASSUMES HE WAS INSANE DURING THE
EIGHT YEARS, YET SUCCEEDED DURING THAT LONG TIME IN ABSENTING HIMSELF
FROM PERSONS WHO COULD TESTIFY IN HIS FAVOR. 

FN14  CF. NOTE 12, SUPRA. 

FN15  COMPARE BISHOP V. COPP, 96 CONN. 571, 580, 114 A. 682; MURPHREE
V. SENN, 107 ALA. 424, 18 SO. 264; ALDRICH V. ALDRICH, 215 MASS. 164,
102 N.E. 487. 

FN16  CF. DR. WILDER'S ADMISSION, NOTE 9, SUPRA. 

FN17  NEITHER THE AMENDMENT'S TERMS NOR ITS HISTORY SUGGEST IT WAS
INTENDED TO EXTEND TO SUCH CLAIMS.  THE COURT OF CLAIMS HAS FUNCTIONED
FOR ALMOST A CENTURY WITHOUT AFFORDING JURY TRIAL IN CASES OF THIS SORT
AND WITHOUT OFFENDING THE REQUIREMENTS OF THE AMENDMENT.  MCELRATH V.
UNITED STATES, 102 U.S. 426; SEE RICHARDSON, HISTORY, JURISDICTION AND
PRACTICE OF THE COURT OF CLAIMS (2D ED. 1885).  CF. ALSO NOTE 18,
INFRA. 

FN18  43 STAT. 1302, 38 U.S.C. SEC. 445; SEE H.R. REP. NO. 1518, 68TH
CONG., 2D SESS., 2; PENCE V. UNITED STATES, 316 U.S. 332, 334; WHITNEY
V. UNITED STATES, 8 F.2D 476(C.C.A.); HACKER V. UNITED STATES, 16 F.2D
702(C.C.A.). 

ALTHOUGH CONGRESS, IN FIRST PERMITTING SUITS ON WAR RISK INSURANCE
POLICIES, DID NOT EXPLICITLY MAKE THEM TRIABLE BY JURY, 40 STAT. 398,
410, THE STATUTE WAS CONSTRUED TO IMPORT "THE USUAL PROCEDURE ...  IN
ACTIONS AT LAW FOR MONEY COMPENSATION."  LAW V. UNITED STATES, 266 U.S.
494, 496.  IN AMENDING THAT ACT, CONGRESS PROVIDED THAT, EXCEPT FOR
DIFFERENCES NOT RELEVANT HERE, THE "PROCEDURE IN SUCH SUITS SHALL  ...
BE THE SAME AS THAT PROVIDED FOR SUITS" UNDER THE TUCKER ACT, 43 STAT.
607, 613.  SUITS UNDER THE TUCKER ACT WERE TRIED WITHOUT A JURY (24
STAT. 505).  HOWEVER, WITHIN A YEAR (IN 1925) CONGRESS AMENDED THAT ACT
(43 STAT. 1302) WITH THE INTENTION TO "GIVE THE CLAIMANT THE RIGHT TO A
JURY TRIAL."  H.R. REP. NO. 1518, 68TH CONG., 2D SESS., 2. 

FN19  SEE E.G., PARKS V. ROSS, 11 HOW.  362; IMPROVEMENT CO. V.
MUNSON, 14 WALL.  442; PLEASANTS V. FANT, 22 WALL.  116; COMMISSIONERS
OF MARION COUNTY V. CLARK, 94 U.S. 278; EWING V. GOODE, 78 F.
442(C.C.); CF. SOUTHERN RY. CO. V. WALTERS, 284 U.S. 190; GUNNING V.
COOLEY, 281 U.S. 90. 

FN20  COMPARE, E.G., 3 GILBERT, THE LAW OF EVIDENCE (1792) 1181-5;
REX V. PAINE, 5 MOD. 163; FOLKES V. CHADD, 3 DOUG.  157. 

FN21  CF. THOE V. CHICAGO, M. & ST. P. RY. CO., 181 WIS. 456, 195
N.W. 407. 

FN22 EX PARTE PETERSON, 253 U.S. 300; GASOLINE PRODUCTS CO. V.
CHAMPLIN REFINING CO., 283 U.S. 494; WALKER V. NEW MEXICO & SOUTHERN
PACIFIC R. CO., 165 U.S. 593; CAPITAL TRACTION CO. V. HOF, 174 U.S. 1;
CF. STONE, J., DISSENTING IN DIMICK V. SCHIEDT, 293 U.S. 474, 490.  THE
RULES GOVERNING THE ADMISSIBILITY OF EVIDENCE, FOR EXAMPLE, HAVE A REAL
IMPACT ON THE JURY'S FUNCTION AS A TRIER OF FACTS AND THE JUDGE'S POWER
TO IMPINGE ON THAT FUNCTION.  YET IT WOULD HARDLY BE MAINTAINED THAT
THE BROADER RULES OF ADMISSIBILITY NOW PREVALENT OFFEND THE SEVENTH
AMENDMENT BECAUSE AT THE TIME OF ITS ADOPTION EVIDENCE NOW ADMITTED
WOULD HAVE BEEN EXCLUDED.  CF. E.G., FUNK V. UNITED STATES, 290 U.S.
371. 

FN23  E.G., DURING THE EIGHTEENTH AND NINETEENTH CENTURIES, THE
NONSUIT WAS BEING TRANSFORMED IN PRACTICE FROM A DEVICE BY WHICH A
PLAINTIFF VOLUNTARILY DISCONTINUED HIS ACTION IN ORDER TO TRY AGAIN
ANOTHER DAY INTO A PROCEDURE BY WHICH A DEFENDANT COULD PUT IN ISSUE
THE SUFFICIENCY OF THE PLAINTIFF'S EVIDENCE TO GO TO THE JURY,
DIFFERING FROM THE DIRECTED VERDICT IN THAT RESPECT ONLY IN FORM. 
COMPARE BLACKSTONE'S COMMENTARIES, BOOK III (COOLEY'S ED., 1899) 376;
JOHNSON, J., DISSENTING IN ELMORE V. GRYMES, 1 PET. 469(1828); OSCANYAN
V. WINCHESTER ARMS CO., 103 U.S. 261, 264; COUGHRAN V. BIGELOW, 164
U.S. 301; SEE THE HISTORICAL SURVEY IN THE COMPREHENSIVE OPINION OF
MCALLISTER, J., IN HOPKINS V. RAILROAD, 96 TENN. 409, 34 S.W. 1029. 
SEE GENERALLY 2 TIDD'S PRACTICE (4TH AMER.  ED., 1856) 861, 866-8.  THE
NONSUIT, OF COURSE, DIFFERED IN CONSEQUENCE FROM THE DIRECTED VERDICT,
FOR IT LEFT THE PLAINTIFF FREE TO TRY AGAIN.  OSCANYAN V. WINCHESTER
ARMS CO., SUPRA; TIDD'S PRACTICE, SUPRA. 

SIMILARLY THE DEMURRER TO THE EVIDENCE PRACTICE WAS NOT STATIC DURING
THIS PERIOD, AS A COMPARISON OF COCKSEDGE V. FANSHAW, 1 DOUG. 
118(1779), WITH GIBSON V. HUNTER, 2 H. BL. 187(1793), AND THE AMERICAN
PRACTICE ON THE DEMURRER TO THE EVIDENCE REVEALS (SEE, E.G., STEPHENS
V. WHITE, 2 WASH. 203(VA. 1796); PATRICK V. HALLETT, 1 JOHNS.  241(N.Y.
1806); WHITTINGTON V. CHRISTIAN, 2 RANDOLPH 353(VA. 1824).  SEE,
GENERALLY, SCHOFIELD, NEW TRIALS AND THE SEVENTH AMENDMENT, 8 ILL. L.
REV. 287, 381, 465; THAYER, PRELIMINARY TREATISE ON EVIDENCE (1898) 234
9).  NOR WAS THE CONCEPTION OF DIRECTING A VERDICT ENTIRELY UNKNOWN TO
THE EIGHTEENTH CENTURY COMMON LAW.  SEE, E.G., WILKINSON V. KITCHIN, 1
LD. RAYMOND 89(K.B.); SYDERBOTTOM V. SMITH, 1 STRANGE 649.  WHILE THERE
IS NO REASON TO BELIEVE THAT THE NOTION AT THAT TIME EVEN APPROXIMATED
IN CHARACTER THE PRESENT DIRECTED VERDICT, THE CASES SERVE FURTHER TO
SHOW THE PLASTIC AND DEVELOPING CHARACTER OF THESE PROCEDURAL DEVICES
DURING THE EIGHTEENTH AND NINETEENTH CENTURIES. 

FN24  SEE, E.G., QUINCY'S MASS. REPORTS, 553-72. 

FN25  SEE NOTE 23, SUPRA. 

FN26  SEE, E.G., SCHOFIELD, NEW TRIALS AND THE SEVENTH AMENDMENT, 8
ILL. L. REV. 287, 381, 465. 

FN27  CF. NOTES 22 AND 23, SUPRA. 

FN28  BY CONCEDING THE FULL SCOPE OF AN OPPONENT'S EVIDENCE AND
ASSERTING ITS INSUFFICIENCY IN LAW, WHICH IS ONE THING, THE CHALLENGER
MUST BE TAKEN, PERFORCE THE AMENDMENT, ALSO TO ADMIT HE HAS NO CASE, IF
THE OTHER'S EVIDENCE IS FOUND LEGALLY SUFFICIENT, WHICH IS QUITE
ANOTHER THING.  IN EFFECT, ONE MUST STAKE HIS CASE, NOT UPON ITS OWN
MERIT ON THE FACTS, BUT ON THE CHANCE HE MAY BE RIGHT IN REGARDING HIS
OPPONENT AS WANTING IN PROBATIVE CONTENT.  IF HE TAKES THE GAMBLE AND
LOSES, HE PAYS WITH HIS OWN CASE, REGARDLESS OF ITS MERIT AND WITHOUT
OPPORTUNITY FOR THE JURY TO CONSIDER IT.  TO FORCE THIS CHOICE AND YET
DENY THAT AFFORDED BY THE DIRECTED VERDICT WOULD BE TO IMBED IN THE
CONSTITUTION THE HYPERTECHNICALITY OF COMMON-LAW PLEADING AND PROCEDURE
IN THEIR HEYDAY.  CF. NOTE 22, SUPRA. 

FN29  UNDER THAT PRACTICE THE MOVING PARTY RECEIVES THE BENEFIT OF
JURY EVALUATION OF HIS OWN CASE AND OF CHALLENGE TO HIS OPPONENT'S FOR
INSUFFICIENCY.  IF HE LOSES ON THE CHALLENGE, THE LITIGATION IS ENDED. 
BUT THIS IS NOT BECAUSE, IN MAKING IT, HE IS FORCED TO ADMIT HIS OWN IS
INSUFFICIENT.  IT IS RATHER FOR THE REASONS THAT THE COURT FINDS THE
OPPOSITE PARTY'S EVIDENCE IS LEGALLY SUFFICIENT AND THE JURY HAS FOUND
IT OUTWEIGHS HIS OWN.  THERE IS THUS NO FORCED SURRENDER OF ONE RIGHT
FROM ASSERTION OF ANOTHER. 

ON THE OTHER HAND, IF THE CHALLENGER WINS, THERE IS ANOTHER TRIAL. 
BUT THIS IS BECAUSE HE HAS SOUGHT IT, NOT BECAUSE THE AMENDMENT
GUARANTEES IT. 

FN30  WE HAVE NOT GIVEN SPECIAL CONSIDERATION TO THE LATEST DECISIONS
TOUCHING THE AMENDMENT'S EFFECTS IN THE DIFFERENT SITUATIONS WHERE A
VERDICT HAS BEEN TAKEN, ON THE ONE HAND, WITHOUT RESERVATION OF THE
QUESTION OF THE SUFFICIENCY OF THE EVIDENCE, SLOCUM V. NEW YORK LIFE
INS. CO., 228 U.S. 364, AND, ON THE OTHER HAND, WITH SUCH A
RESERVATION, BALTIMORE & CAROLINA LINE V. REDMAN, 295 U.S. 654.  CF.
AETNA INS. CO. V. KENNEDY, 301 U.S. 389.  WHATEVER MAY BE THE EXACT
EFFECT OF THE LATTER AND, MORE RECENTLY, OF RULE 50 OF THE FEDERAL
RULES OF CIVIL PROCEDURE UPON THE FORMER DECISION, IT SUFFICES TO SAY
THAT, NOTWITHSTANDING THE SHARP DIVISION ENGENDERED IN THE SLOCUM CASE,
THERE WAS NO DISAGREEMENT IN IT OR IN THE REDMAN CASE CONCERNING THE
VALIDITY OF THE PRACTICE OF DIRECTING A VERDICT.  ON THE CONTRARY, THE
OPINIONS MAKE IT PLAIN THAT THIS WAS UNQUESTIONED AND IN FACT CONCEDED
BY ALL. 

FN31  CF. 9 WIGMORE, EVIDENCE (1940) 296-299. 

FN32  CF. E.G. FOWLE V. ALEXANDRIA, 11 WHEAT.  320, 323(1826), A
DEMURRER TO THE EVIDENCE ADMITS "WHATEVER THE JURY MAY REASONABLY INFER
FROM THE EVIDENCE."  PAWLING V. UNITED STATES, 4 CRANCH 219, 221
222(1808).  A DEMURRANT TO THE EVIDENCE ADMITS "THE TRUTH OF THE
TESTIMONY TO WHICH HE DEMURS AND ALSO THOSE CONCLUSIONS OF FACT WHICH A
JURY MAY FAIRLY DRAW FROM THAT TESTIMONY.  FORCED AND VIOLENT
INFERENCES HE DOES NOT ADMIT; BUT THE TESTIMONY IS TO BE TAKEN MOST
STRONGLY AGAINST HIM, AND SUCH CONCLUSIONS AS A JURY MIGHT JUSTIFIABLY
DRAW, THE COURT OUGHT TO DRAW."  COCKSEDGE V. FANSHAW, SUPRA; PATRICK
V. HALLETT, SUPRA; STEPHENS V. WHITE, SUPRA. 

FN33  CF. HUGHES, J., DISSENTING IN SLOCUM V. NEW YORK LIFE INS. CO.,
228 U.S. 364, 408, AND CASES CITED SUPRA, NOTE 22. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MURPHY CONCUR, DISSENTING: 

THE SEVENTH AMENDMENT TO THE CONSTITUTION PROVIDES: 

"IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED
TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED, AND NO
FACT TRIED BY A JURY SHALL BE OTHERWISE RE-EXAMINED IN ANY COURT OF THE
UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW." 

THE COURT HERE RE-EXAMINES TESTIMONY OFFERED IN A COMMON LAW SUIT,
WEIGHS CONFLICTING EVIDENCE, AND HOLDS THAT THE LITIGANT MAY NEVER TAKE
THIS CASE TO A JURY.  THE FOUNDERS OF OUR GOVERNMENT THOUGHT THAT TRIAL
OF FACT BY JURIES RATHER THAN BY JUDGES WAS AN ESSENTIAL BULWARK OF
CIVIL LIBERTY.  FN1  FOR THIS REASON, AMONG OTHERS, THEY ADOPTED
ARTICLE III, SEC. 2 OF THE CONSTITUTION, AND THE SIXTH AND SEVENTH
AMENDMENTS.  TODAY'S DECISION MARKS A CONTINUATION OF THE GRADUAL
PROCESS OF JUDICIAL EROSION WHICH IN ONE-HUNDRED-FIFTY YEARS HAS SLOWLY
WORN AWAY A MAJOR PORTION OF THE ESSENTIAL GUARANTEE OF THE SEVENTH
AMENDMENT. 

                  I. 

ALEXANDER HAMILTON IN THE FEDERALIST EMPHASIZED HIS LOYALTY TO THE
JURY SYSTEM IN CIVIL CASES AND DECLARED THAT JURY VERDICTS SHOULD BE RE
EXAMINED, IF AT ALL, ONLY "BY A SECOND JURY, EITHER BY REMANDING THE
CAUSE TO THE COURT BELOW FOR A SECOND TRIAL OF THE FACT, OR BY
DIRECTING AN ISSUE IMMEDIATELY OUT OF THE SUPREME COURT."  HE DIVIDED
THE CITIZENS OF HIS TIME BETWEEN THOSE WHO THOUGHT THAT JURY TRIAL WAS
A "VALUABLE SAFEGUARD TO LIBERTY" AND THOSE WHO THOUGHT IT WAS "THE
VERY PALLADIUM OF FREE GOVERNMENT."  HOWEVER, HE FELT IT UNNECESSARY TO
INCLUDE IN THE CONSTITUTION A SPECIFIC PROVISION PLACING JURY TRIAL IN
CIVIL CASES IN THE SAME HIGH POSITION AS JURY TRIAL IN CRIMINAL CASES. 
FN2 

HAMILTON'S VIEW, THAT CONSTITUTIONAL PROTECTION OF JURY TRIAL IN
CIVIL CASES WAS UNDESIRABLE, DID NOT PREVAIL.  ON THE CONTRARY, IN
RESPONSE TO WIDESPREAD DEMANDS FROM THE VARIOUS STATE CONSTITUTIONAL
CONVENTIONS, THE FIRST CONGRESS ADOPTED THE BILL OF RIGHTS CONTAINING
THE SIXTH AND SEVENTH AMENDMENTS, INTENDED TO SAVE TRIAL IN BOTH
CRIMINAL AND COMMON LAW CASES FROM LEGISLATIVE OR JUDICIAL ABRIDGMENT. 
FN3  THE FIRST CONGRESS EXPECTED THE SEVENTH AMENDMENT TO MEET THE
OBJECTIONS OF MEN LIKE PATRICK HENRY TO THE CONSTITUTION ITSELF. 
HENRY, SPEAKING IN THE VIRGINIA CONSTITUTIONAL CONVENTION, HAD
EXPRESSED THE GENERAL CONVICTION OF THE PEOPLE OF THE THIRTEEN STATES
WHEN HE SAID, "TRIAL BY JURY IS THE BEST APPENDAGE OF FREEDOM.  ...  WE
ARE TOLD THAT WE ARE TO PART WITH THAT TRIAL BY JURY WITH WHICH OUR
ANCESTORS SECURED THEIR LIVES AND PROPERTY.  ...  I HOPE WE SHALL NEVER
BE INDUCED, BY SUCH ARGUMENTS, TO PART WITH THAT EXCELLENT MODE OF
TRIAL.  NO APPEAL CAN NOW BE MADE AS TO FACT IN COMMON LAW SUITS.  THE
UNANIMOUS VERDICT OF IMPARTIAL MEN CANNOT BE REVERSED."  FN4  THE FIRST
CONGRESS, THEREFORE, PROVIDED FOR TRIAL OF COMMON LAW CASES BY A JURY,
EVEN WHEN SUCH TRIALS WERE IN THE SUPREME COURT ITSELF.  1 STAT. 73,
81. 

IN 1789, JURIES OCCUPIED THE PRINCIPAL PLACE IN THE ADMINISTRATION OF
JUSTICE.  THEY WERE FREQUENTLY IN BOTH CRIMINAL  FN5  AND CIVIL CASES
THE ARBITERS NOT ONLY OF FACT BUT OF LAW.  LESS THAN THREE YEARS AFTER
THE RATIFICATION OF THE SEVENTH AMENDMENT, THIS COURT CALLED A JURY IN
A CIVIL CASE BROUGHT UNDER OUR ORIGINAL JURISDICTION.  THERE WAS NO
DISAGREEMENT AS TO THE FACTS OF THE CASE.  CHIEF JUSTICE JAY, CHARGING
THE JURY FOR A UNANIMOUS COURT, THREE OF WHOSE MEMBERS HAD SAT IN THE
CONSTITUTIONAL CONVENTION, SAID:  "FOR AS, ON THE ONE HAND, IT IS
PRESUMED THAT JURIES ARE THE BEST JUDGES OF FACTS; IT IS, ON THE OTHER
HAND, PRESUMABLE THAT THE COURT ARE THE BEST JUDGES OF LAW.  BUT STILL,
BOTH OBJECTS ARE LAWFULLY WITHIN YOUR POWER OF DECISION."  GEORGIA V.
BRAILSFORD, 3 DALL.  1, 4.  SIMILAR VIEWS WERE HELD BY STATE COURTS IN
CONNECTICUT, MASSACHUSETTS, ILLINOIS, LOUISIANA AND PRESUMABLY
ELSEWHERE.  FN6    THE PRINCIPAL METHOD BY WHICH JUDGES PREVENTED CASES
FROM GOING TO THE JURY IN THE SEVENTEENTH AND EIGHTEENTH CENTURIES WAS
BY THE DEMURRER TO THE EVIDENCE, UNDER WHICH THE DEFENDANT AT THE END
OF THE TRIAL ADMITTED ALL FACTS SHOWN BY THE PLAINTIFF AS WELL AS ALL
INFERENCES WHICH MIGHT BE DRAWN FROM THE FACTS, AND ASKED FOR A RULING
OF THE COURT ON THE "LAW OF THE CASE."  FN7  SEE FOR EXAMPLE WRIGHT V.
PINDAR, (1647) ALEYN 18 AND PAWLING V. UNITED STATES, 4 CRANCH 219. 
THIS PRACTICE FELL INTO DISUSE IN ENGLAND IN 1793, GIBSON V. HUNTER, 2
H. BL. 187, AND IN THE UNITED STATES FEDERAL COURTS IN 1826, FOWLE V.
ALEXANDRIA, 11 WHEAT.  320.  THE POWER OF FEDERAL JUDGES TO COMMENT TO
THE JURY ON THE EVIDENCE GAVE THEM ADDITIONAL INFLUENCE.  M'LANAHAN V.
UNIVERSAL INSURANCE CO., 1 PET. 170(1828).  THE RIGHT OF INVOLUNTARY
NON-SUIT OF A PLAINTIFF, WHICH MIGHT HAVE BEEN USED TO EXPAND JUDICIAL
POWER AT JURY EXPENSE WAS AT FIRST DENIED FEDERAL COURTS.  ELMORE V.
GRYMES, 1 PET. 469; DEWOLF V. RABAUD, 1 PET. 476; BUT CF. COUGHRAN V.
BIGELOW, 164 U.S. 301(1896). 

AS HAMILTON HAD DECLARED IN THE FEDERALIST, THE BASIC JUDICIAL
CONTROL OF THE JURY FUNCTION WAS IN THE COURT'S POWER TO ORDER A NEW
TRIAL.  FN8  IN 1830, THIS COURT SAID:  "THE ONLY MODES KNOWN TO THE
COMMON LAW TO RE-EXAMINE SUCH FACTS, ARE THE GRANTING OF A NEW TRIAL BY
THE COURT WHERE THE ISSUE WAS TRIED, OR TO WHICH THE RECORD WAS
PROPERLY RETURNABLE; OR THE AWARD OF A VENIRE FACIAS DE NOVO, BY AN
APPELLATE COURT, FOR SOME ERROR OF LAW WHICH INTERVENED IN THE
PROCEEDINGS."  PARSONS V. BEDFORD, SUPRA, AT 448.  FN9  THAT RETRIAL BY
A NEW JURY RATHER THAN FACTUAL REEVALUATION BY A COURT IS A
CONSTITUTIONAL RIGHT OF GENUINE VALUE WAS RESTATED AS RECENTLY AS
SLOCUM V. NEW YORK LIFE INSURANCE CO., 228 U.S. 364.  FN10 

A LONG STEP TOWARD THE DETERMINATION OF FACT BY JUDGES INSTEAD OF BY
JURIES WAS THE INVENTION OF THE DIRECTED VERDICT.  FN11  IN 1850, WHAT
SEEMS TO HAVE BEEN THE FIRST DIRECTED VERDICT CASE CONSIDERED BY THIS
COURT, PARKS V. ROSS, 11 HOW.  362, WAS PRESENTED FOR DECISION.  THE
COURT HELD THAT THE DIRECTED VERDICT SERVES THE SAME PURPOSE AS THE
DEMURRER TO THE EVIDENCE, AND THAT SINCE THERE WAS "NO EVIDENCE
WHATEVER"  FN12  ON THE CRITICAL ISSUE IN THE CASE, THE DIRECTED
VERDICT WAS APPROVED.  FN13  THE DECISION WAS AN INNOVATION, A
DEPARTURE FROM THE TRADITIONAL RULE RESTATED ONLY FIFTEEN YEARS BEFORE
IN GREENLEAF V. BIRTH, 9 PET. 292, 299(1835), IN WHICH THIS COURT HAD
SAID:  "WHERE THERE IS NO EVIDENCE TENDING TO PROVE A PARTICULAR FACT,
THE COURT ARE BOUND SO TO INSTRUCT THE JURY, WHEN REQUESTED; BUT THEY
CANNOT LEGALLY GIVE ANY INSTRUCTION WHICH SHALL TAKE FROM THE JURY THE
RIGHT OF WEIGHING THE EVIDENCE AND DETERMINING WHAT EFFECT IT SHALL
HAVE." 

THIS NEW DEVICE CONTAINED POTENTIALITIES FOR JUDICIAL CONTROL OF THE
JURY WHICH HAD NOT EXISTED IN THE DEMURRER TO THE EVIDENCE.  IN THE
FIRST PLACE, DEMURRING TO THE EVIDENCE WAS RISKY BUSINESS, FOR IN SO
DOING THE PARTY NOT ONLY ADMITTED THE TRUTH OF ALL THE TESTIMONY
AGAINST HIM BUT ALSO ALL REASONABLE INFERENCES WHICH MIGHT BE DRAWN
FROM IT; AND UPON JOINDER IN DEMURRER THE CASE WAS WITHDRAWN FROM THE
JURY WHILE THE COURT PROCEEDED TO GIVE FINAL JUDGMENT EITHER FOR OR
AGAINST THE DEMURRANT.  HOPKINS V. RAILROAD, 96 TENN. 409, 34 S.W.
1029; SUYDAM V. WILLIAMSON, 20 HOW.  427, 436; BASS V. RUBLEE, 76 VT.
395, 400, 57 A. 965.  IMPOSITION OF THIS RISK WAS NO MERE TECHNICALITY;
FOR BY MAKING WITHDRAWAL OF A CASE FROM THE JURY DANGEROUS TO THE
MOVING LITIGANT'S CAUSE, THE EARLY LAW WENT FAR TO ASSURE THAT FACTS
WOULD NEVER BE EXAMINED EXCEPT BY A JURY.  UNDER THE DIRECTED VERDICT
PRACTICE, THE MOVING PARTY TAKES NO SUCH CHANCE, FOR IF HIS MOTION IS
DENIED, INSTEAD OF SUFFERING A DIRECTED VERDICT AGAINST HIM, HIS CASE
MERELY CONTINUES INTO THE HANDS OF THE JURY.  THE LITIGANT NOT ONLY
TAKES NO RISK BY A MOTION FOR A DIRECTED VERDICT, BUT IN MAKING SUCH A
MOTION GIVES HIMSELF TWO OPPORTUNITIES TO AVOID THE JURY'S DECISION;
FOR UNDER THE FEDERAL VARIANT OF JUDGMENT NOTWITHSTANDING THE VERDICT,
THE JUDGE MAY RESERVE OPINION ON THE MOTION FOR A DIRECTED VERDICT AND
THEN GIVE JUDGMENT FOR THE MOVING PARTY AFTER THE JURY HAS FORMALLY
FOUND AGAINST HIM.  FN14  IN THE SECOND PLACE, UNDER THE DIRECTED
VERDICT PRACTICE THE COURTS SOON ABANDONED THE "ADMISSION OF ALL FACTS
AND REASONABLE INFERENCES" STANDARD REFERRED TO, AND CREATED THE SO
CALLED "SUBSTANTIAL EVIDENCE" RULE WHICH PERMITTED DIRECTED VERDICTS
EVEN THOUGH THERE WAS FAR MORE EVIDENCE IN THE CASE THAN A PLAINTIFF
WOULD HAVE NEEDED TO WITHSTAND A DEMURRER. 

THE SUBSTANTIAL EVIDENCE RULE DID NOT SPRING INTO EXISTENCE
IMMEDIATELY UPON THE ADOPTION OF THE DIRECTED VERDICT DEVICE.  FOR A
FEW MORE YEARS  FN15  FEDERAL JUDGES HELD TO THE TRADITIONAL RULE THAT
JURIES MIGHT PASS FINALLY ON FACTS IF THERE WAS "ANY EVIDENCE" TO
SUPPORT A PARTY'S CONTENTION.  THE RULE THAT A CASE MUST GO TO THE JURY
UNLESS THERE WAS "NO EVIDENCE" WAS COMPLETELY REPUDIATED IN IMPROVEMENT
CO. V. MUNSON, 14 WALL.  442, 447(1871), UPON WHICH THE COURT TODAY
RELIES IN PART.  THERE THE COURT DECLARED THAT "SOME" EVIDENCE WAS NOT
ENOUGH - THERE MUST BE EVIDENCE SUFFICIENTLY PERSUASIVE TO THE JUDGE SO
THAT HE THINKS "A JURY CAN PROPERLY PROCEED."  THE TRADITIONAL RULE WAS
GIVEN AN UGLY NAME, "THE SCINTILLA RULE," TO HASTEN ITS DEMISE.  FOR A
TIME, TRACES OF THE OLD FORMULA REMAINED, AS IN RANDALL V. B. & O.R.
CO., 109 U.S. 478, BUT THE NEW SPIRIT PREVAILED.  SEE FOR EXAMPLE
PLEASANTS V. FANT, SUPRA, AND COMMISSIONERS V. CLARK, 94 U.S. 278.  THE
SAME TRANSITION FROM JURY SUPREMACY TO JURY SUBORDINATION THROUGH
JUDICIAL DECISIONS TOOK PLACE IN STATE COURTS.  FN16 

LATER CASES PERMITTED THE DEVELOPMENT OF ADDED JUDICIAL CONTROL. 
FN17  NEW AND TOTALLY UNWARRANTED FORMULAS, WHICH SHOULD SURELY BE
ERADICATED FROM THE LAW AT THE FIRST OPPORTUNITY, WERE ADDED AS
RECENTLY AS 1929 IN GUNNING V. COOLEY, 281 U.S. 90, WHICH, BY SHEEREST
DICTUM, MADE NEW ENCROACHMENTS ON THE JURY'S CONSTITUTIONAL FUNCTIONS. 
THERE IT WAS ANNOUNCED THAT A JUDGE MIGHT WEIGH THE EVIDENCE TO
DETERMINE WHETHER HE, AND NOT THE JURY, THOUGHT IT WAS "OVERWHELMING"
FOR EITHER PARTY, AND THEN DIRECT A VERDICT.  CF. PENCE V. UNITED
STATES, 316 U.S. 332, 340.  GUNNING V. COOLEY, AT 94, ALSO SUGGESTS,
QUITE UNNECESSARILY FOR ITS DECISION, THAT "WHEN A PLAINTIFF PRODUCES
EVIDENCE THAT IS CONSISTENT WITH AN HYPOTHESIS THAT THE DEFENDANT IS
NOT NEGLIGENT, AND ALSO WITH ONE THAT HE IS, HIS PROOF TENDS TO
ESTABLISH NEITHER."  THIS DICTUM, WHICH ASSUMES THAT A JUDGE CAN WEIGH
CONFLICTING EVIDENCE WITH MATHEMATICAL PRECISION AND WHICH WHOLLY
DEPRIVES THE JURY OF THE RIGHT TO RESOLVE THAT CONFLICT, WAS APPLIED IN
PENNSYLVANIA R. CO. V. CHAMBERLAIN, 288 U.S. 333.  WITH IT, AND OTHER
TOOLS, JURY VERDICTS ON DISPUTED FACTS HAVE BEEN SET ASIDE OR DIRECTED
VERDICTS AUTHORIZED SO REGULARLY AS TO MAKE THE PRACTICE COMMONPLACE,
WHILE THE MOTION FOR DIRECTED VERDICT ITSELF HAS BECOME ROUTINE.  SEE
FOR EXAMPLE SOUTHERN RAILWAY CO. V. WALTERS, 284 U.S. 190; ATLANTIC
COAST LINE V. TEMPLE, 285 U.S. 143; LUMBRA V. UNITED STATES, 290 U.S.
551; PENCE V. UNITED STATES, SUPRA; AND DE ZON V. UNITED STATES, 318
U.S. 660. 

EVEN GUNNING V. COOLEY, AT 94, ACKNOWLEDGED THAT "ISSUES THAT DEPEND
ON THE CREDIBILITY OF WITNESSES  ...  ARE TO BE DECIDED BY THE JURY." 
FN18  TODAY THE COURT COMES DANGEROUSLY CLOSE TO WEIGHING THE
CREDIBILITY OF A WITNESS AND REJECTING HIS TESTIMONY BECAUSE THE
MAJORITY DO NOT BELIEVE IT. 

THE STORY THUS BRIEFLY TOLD DEPICTS THE CONSTRICTION OF A
CONSTITUTIONAL CIVIL RIGHT AND SHOULD NOT BE CONTINUED.  SPEAKING OF AN
ASPECT OF THIS PROBLEM, A CONTEMPORARY WRITER SAW THE HEART OF THE
ISSUE:  "SUCH A REVERSAL OF OPINION (AS THAT OF A PARTICULAR STATE
COURT CONCERNING THE JURY FUNCTION), IF IT WERE ISOLATED, MIGHT HAVE
LITTLE SIGNIFICANCE, BUT WHEN MANY OTHER COURTS THROUGHOUT THE COUNTRY
ARE FOUND TO BE MAKING THE SAME SHIFT AND TO BE DOING SO DESPITE THE
PROVISIONS OF STATUTES AND CONSTITUTIONS THERE IS REVEALED ONE ASPECT
OF THAT BASIC CONFLICT IN THE LEGAL HISTORY OF AMERICA - THE CONFLICT
BETWEEN THE PEOPLE'S ASPIRATION FOR DEMOCRATIC GOVERNMENT,  FN19  AND
THE JUDICIARY'S DESIRE FOR THE ORDERLY SUPERVISION OF PUBLIC AFFAIRS BY
JUDGES."  FN20 

THE LANGUAGE OF THE SEVENTH AMENDMENT CANNOT EASILY BE IMPROVED BY
FORMULAS.  FN21  THE STATEMENT OF A DISTRICT JUDGE IN TARTER V. UNITED
STATES, 17 F.SUPP.  691, 692-693, REPRESENTS, IN MY OPINION, THE
MINIMUM MEANING OF THE SEVENTH AMENDMENT: 

"THE SEVENTH AMENDMENT TO THE CONSTITUTION GUARANTEES A JURY TRIAL IN
LAW CASES, WHERE THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE CLAIM OF
THE PLAINTIFF IN AN ACTION.  IF A SINGLE WITNESS TESTIFIES TO A FACT
SUSTAINING THE ISSUE BETWEEN THE PARTIES, OR IF REASONING MINDS MIGHT
REACH DIFFERENT CONCLUSIONS FROM THE TESTIMONY OF A SINGLE WITNESS, ONE
OF WHICH WOULD SUBSTANTIALLY SUPPORT THE ISSUE OF THE CONTENDING PARTY,
THE ISSUE MUST BE LEFT TO THE JURY.  TRIAL BY JURY IS A FUNDAMENTAL
GUARANTY OF THE RIGHTS OF THE PEOPLE, AND JUDGES SHOULD NOT SEARCH THE
EVIDENCE WITH METICULOUS CARE TO DEPRIVE LITIGANTS OF JURY TRIALS." 

THE CALL FOR THE TRUE APPLICATION OF THE SEVENTH AMENDMENT IS NOT TO
WORDS, BUT TO THE SPIRIT OF HONEST DESIRE TO SEE THAT CONSTITUTIONAL
RIGHT PRESERVED.  EITHER THE JUDGE OR THE JURY MUST DECIDE FACTS AND,
TO THE EXTENT THAT WE TAKE THIS RESPONSIBILITY, WE LESSEN THE JURY
FUNCTION.  OUR DUTY TO PRESERVE THIS ONE OF THE BILL OF RIGHTS MAY BE
PECULIARLY DIFFICULT, FOR HERE IT IS OUR OWN POWER WHICH WE MUST
RESTRAIN.  WE SHOULD NOT FAIL TO MEET THE EXPECTATION OF JAMES MADISON,
WHO, IN ADVOCATING THE ADOPTION OF THE BILL OF RIGHTS, SAID:
"INDEPENDENT TRIBUNALS OF JUSTICE WILL CONSIDER THEMSELVES IN A
PECULIAR MANNER THE GUARDIANS OF THOSE RIGHTS; ...  THEY WILL BE
NATURALLY LED TO RESIST EVERY ENCROACHMENT UPON RIGHTS EXPRESSLY
STIPULATED FOR IN THE CONSTITUTION BY THE DECLARATION OF RIGHT."  SO
FEW OF THESE CASES COME TO THIS COURT THAT, AS A MATTER OF FACT, THE
JUDGES OF THE DISTRICT COURTS AND THE CIRCUIT COURTS OF APPEALS ARE THE
PRIMARY CUSTODIANS OF THE AMENDMENT.  AS FOR MYSELF, I BELIEVE THAT A
VERDICT SHOULD BE DIRECTED, IF AT ALL, ONLY WHEN, WITHOUT WEIGHING THE
CREDIBILITY OF THE WITNESSES, THERE IS IN THE EVIDENCE NO ROOM WHATEVER
FOR HONEST DIFFERENCE OF OPINION OVER THE FACTUAL ISSUE IN
CONTROVERSY.  I SHALL CONTINUE TO BELIEVE THAT IN ALL OTHER CASES A
JUDGE SHOULD, IN OBEDIENCE TO THE COMMAND OF THE SEVENTH AMENDMENT, NOT
INTERFERE WITH THE JURY'S FUNCTION.  SINCE THIS IS A MATTER OF HIGH
CONSTITUTIONAL IMPORTANCE, APPELLATE COURTS SHOULD BE ALERT TO INSURE
THE PRESERVATION OF THIS CONSTITUTIONAL RIGHT EVEN THOUGH EACH CASE
NECESSARILY TURNS ON ITS PECULIAR CIRCUMSTANCES. 

II. 

THE FACTUAL ISSUE FOR DETERMINATION HERE IS WHETHER THE PETITIONER
INCURRED A TOTAL AND PERMANENT DISABILITY NOT LATER THAN MAY 31, 1919. 
IT IS UNDISPUTED THAT THE PETITIONER'S HEALTH WAS SOUND IN 1918, AND IT
IS EVIDENTLY CONCEDED THAT HE WAS DISABLED AT LEAST SINCE 1930.  WHEN,
IN THE INTERVENING PERIOD, DID THE DISABILITY TAKE PLACE? 

A DOCTOR WHO TESTIFIED DIAGNOSED THE PETITIONER'S CASE AS A
SCHIZOPHRENIC FORM OF DEMENTIA PRAECOX.  HE DECLARED IT TO BE SOUND
MEDICAL THEORY THAT WHILE A NORMAL MAN CAN RETAIN HIS SANITY IN THE
FACE OF SEVERE MENTAL OR PHYSICAL SHOCK, SOME PERSONS ARE BORN WITH AN
INHERENT INSTABILITY SO THAT THEY ARE MENTALLY UNABLE TO STAND SUDDEN
AND SEVERE STRAIN.  THE MEDICAL TESTIMONY WAS THAT THIS PETITIONER
BELONGS TO THE LATTER CLASS AND THAT THE SHOCK OF ACTUAL CONFLICT ON
THE BATTLE FRONT BROUGHT ON THE INCURABLE AFFLICTION FROM WHICH HE NOW
SUFFERS.  THE MEDICAL WITNESS TESTIFIED THAT THE DOMINANT SYMPTOMS OF
THE CONDITION ARE EXTREME INTROVERSION AND PREOCCUPATION WITH PERSONAL
INTERESTS, A PERSECUTION COMPLEX, AND AN EMOTIONAL INSTABILITY WHICH
MAY BE MANIFESTED BY EXTREME EXHILARATION ALTERNATING WITH UNUSUAL
DEPRESSION OR IRRATIONAL OUTBURSTS.  PERSONS SUFFERING FROM THIS
DISEASE ARE THEREFORE UNABLE TO ENGAGE IN CONTINUOUS EMPLOYMENT. 

THE PETITIONER RELIES ON THE TESTIMONY OF WARTIME AND POSTWAR
COMPANIONS AND SUPERIORS TO SHOW THAT HIS PRESENT MENTAL CONDITION
EXISTED ON THE CRUCIAL DATE.  THERE IS SUBSTANTIAL TESTIMONY FROM WHICH
REASONABLE MEN MIGHT CONCLUDE THAT THE PETITIONER WAS INSANE FROM THE
DATE CLAIMED. 

TWO WITNESSES TESTIFY AS TO THE PETITIONER'S MENTAL IRRESPONSIBILITY
WHILE HE WAS IN FRANCE.  THE MOST STRIKING INCIDENT IN THIS TESTIMONY
IS THE ACCOUNT OF HIS COMPLETE BREAKDOWN WHILE ON GUARD DUTY AS A
RESULT OF WHICH HE FALSELY ALARMED HIS MILITARY UNIT BY SCREAMING THAT
THE GERMANS WERE COMING WHEN THEY WERE NOT AND WAS SILENCED ONLY BY
BEING FORCEABLY BOUND AND GAGGED.  THERE WAS ALSO OTHER EVIDENCE THAT
GALLOWAY BECAME NERVOUS, IRRITABLE, QUARRELSOME AND TURBULENT AFTER HE
GOT TO FRANCE.  THE COURT DISPOSES OF THIS TESTIMONY, WHICH OBVIOUSLY
INDICATES SOME DEGREE OF MENTAL UNBALANCE, BY SAYING NO MORE THAN THAT
IT "DOES NOT PROVE HE WAS INSANE."  NO REASON IS GIVEN, NOR CAN I
IMAGINE ANY, WHY A JURY SHOULD NOT BE ENTITLED TO CONSIDER THIS
EVIDENCE AND DRAW ITS OWN CONCLUSIONS. 

THE TESTIMONY OF ANOTHER WITNESS, O'NEILL, WAS OFFERED TO SHOW THAT
THE WITNESS HAD KNOWN THE PETITIONER BOTH BEFORE AND AFTER THE WAR, AND
THAT AFTER THE WAR THE WITNESS FOUND THE PETITIONER A CHANGED MAN; THAT
THE PETITIONER IMAGINED THAT HE WAS BEING PERSECUTED; AND THAT THE
PETITIONER SUFFERED FROM FITS OF MELANCHOLIA, DEPRESSION AND WEEPING. 
IF O'NEILL'S TESTIMONY IS TO BE BELIEVED, THE PETITIONER SUFFERED THE
TYPICAL SYMPTOMS OF A SCHIZOPHRENIAC FOR SOME YEARS AFTER HIS RETURN TO
THIS COUNTRY; THEREFORE IF O'NEILL'S TESTIMONY IS BELIEVED, THERE CAN
BE NO REASONABLE DOUBT ABOUT THE RIGHT OF A JURY TO PASS ON THIS CASE. 
THE COURT ANALYZES O'NEILL'S TESTIMONY FOR INTERNAL CONSISTENCY,
CRITICIZES HIS FAILURE TO REMEMBER THE DETAILS OF HIS ASSOCIATION WITH
THE PETITIONER FIFTEEN YEARS BEFORE HIS APPEARANCE IN THIS CASE, AND
CONCLUDES THAT O'NEILL'S EVIDENCE SHOWS NO MORE THAN THAT "PETITIONER
WAS SUBJECT TO ALTERNATING PERIODS OF GAIETY AND DEPRESSION FOR SOME
INDEFINITE PERIOD."  THIS EXTREME EMOTIONAL INSTABILITY IS AN ACCEPTED
SYMPTOM OF THE DISEASE FROM WHICH THE PETITIONER SUFFERS.  IF HE
EXHIBITED THE SAME SYMPTOMS IN 1922, IT IS, AT THE MINIMUM, PROBABLE
THAT THE CONDITION HAS BEEN CONTINUOUS SINCE AN ORIGIN DURING THE WAR. 
O'NEILL'S TESTIMONY COUPLED WITH THE PETITIONER'S PRESENT CONDITION
PRESENTS PRECISELY THE TYPE OF QUESTION WHICH A JURY SHOULD RESOLVE. 

THE PETITIONER WAS IN THE NAVY FOR SIX MONTHS IN 1920, UNTIL HE WAS
DISCHARGED FOR BAD CONDUCT; AND LATER WAS IN THE ARMY DURING 1921 AND A
PART OF 1922, UNTIL HE DESERTED.  THE TESTIMONY OF HIS COMMANDING
OFFICER WHILE HE WAS IN THE ARMY, COL. MATTHEWS, IS THAT THE PETITIONER
HAD "PERIODS OF GAIETY AND EXHILARATION" AND WAS THEN "DEPRESSED AS IF
HE HAD HAD A HANGOVER"; THAT PETITIONER TRIED TO CREATE DISTURBANCES
AND DISSATISFY THE MEN; THAT HE SUFFERED FROM A BELIEF THAT HE WAS
BEING TREATED UNFAIRLY; AND THAT GENERALLY HIS ACTIONS "WERE NOT THOSE
OF A NORMAL MAN."  THE COLONEL WAS NOT A DOCTOR AND MIGHT WELL NOT HAVE
RECOGNIZED INSANITY HAD HE SEEN IT; AS IT WAS, HE CONCLUDED THAT THE
PETITIONER WAS AN ALCOHOLIC AND A NARCOTIC ADDICT.  HOWEVER, THE
OFFICER WAS UNABLE, UPON REPEATED INVESTIGATIONS, TO DISCOVER ANY
ACTUAL USE OF NARCOTICS.  A JURY FITTING THIS INFORMATION INTO THE
GENERAL PATTERN OF THE TESTIMONY MIGHT WELL HAVE BEEN DRIVEN TO THE
CONCLUSION THAT THE PETITIONER WAS INSANE AT THE TIME THE COLONEL HAD
HIM UNDER OBSERVATION. 

ALL OF THIS EVIDENCE, IF BELIEVED, SHOWED A MAN, HEALTHY AND NORMAL
BEFORE HE WENT TO THE WAR, SUFFERING FOR SEVERAL YEARS AFTER HE CAME
BACK FROM A DISEASE WHICH HAD THE SYMPTOMS ATTRIBUTED TO SCHIZOPHRENIA
AND WHO WAS INSANE FROM 1930 UNTIL HIS TRIAL.  UNDER THESE
CIRCUMSTANCES, I THINK THAT THE PHYSICIAN'S TESTIMONY OF TOTAL AND
PERMANENT DISABILITY BY REASON OF CONTINUOUS INSANITY FROM 1918 TO 1938
WAS REASONABLE.  THE FACT THAT THERE WAS NO DIRECT TESTIMONY FOR A
PERIOD OF FIVE YEARS, WHILE IT MIGHT BE THE BASIS OF FAIR ARGUMENT TO
THE JURY BY THE GOVERNMENT, DOES NOT, AS THE COURT SEEMS TO BELIEVE,
CREATE A PRESUMPTION AGAINST THE PETITIONER SO STRONG THAT HIS CASE
MUST BE EXCLUDED FROM THE JURY ENTIRELY.  EVEN IF DURING THESE FIVE
YEARS THE PETITIONER WAS SPASMODICALLY EMPLOYED, WE COULD NOT CONCLUDE
THAT HE WAS NOT TOTALLY AND PERMANENTLY DISABLED.  BERRY V. UNITED
STATES, 312 U.S. 450, 455.  IT IS NOT DOUBTED THAT SCHIZOPHRENIA IS
PERMANENT EVEN THOUGH THERE MAY BE A MOMENTARY APPEARANCE OF RECOVERY. 

THE COURT BELOW CONCLUDED THAT THE PETITIONER'S ADMISSION INTO THE
MILITARY SERVICE BETWEEN 1920 AND 1923 SHOWED CONCLUSIVELY THAT HE WAS
NOT TOTALLY AND PERMANENTLY DISABLED.  ANY INFERENCE WHICH MAY BE
CREATED BY THE PETITIONER'S ADMISSION INTO THE ARMY AND THE NAVY IS
MORE THAN MET BY HIS RECORD OF COURT-MARTIAL, DISHONORABLE DISCHARGE,
AND DESERTION, AS WELL AS BY THE EXPLICIT TESTIMONY OF HIS COMMANDING
OFFICER, COLONEL MATTHEWS. 

THIS CASE GRAPHICALLY ILLUSTRATES THE INJUSTICE RESULTING FROM
PERMITTING JUDGES TO DIRECT VERDICTS INSTEAD OF REQUIRING THEM TO AWAIT
A JURY DECISION AND THEN, IF NECESSARY, ALLOW A NEW TRIAL.  THE CHIEF
REASON GIVEN FOR APPROVING A DIRECTED VERDICT AGAINST THIS PETITIONER
IS THAT NO EVIDENCE EXCEPT EXPERT MEDICAL TESTIMONY WAS OFFERED FOR A
FIVE TO EIGHT YEAR PERIOD.  PERHAPS, NOW THAT THE PETITIONER KNOWS HE
HAS INSUFFICIENT EVIDENCE TO SATISFY A JUDGE EVEN THOUGH HE MAY HAVE
ENOUGH TO SATISFY A JURY, HE WOULD BE ABLE TO FILL THIS TIME GAP TO
MEET ANY JUDGE'S DEMAND.  IF A COURT WOULD POINT OUT ON A MOTION FOR
NEW TRIAL THAT THE EVIDENCE AS TO THIS PARTICULAR PERIOD WAS TOO WEAK,
THE PETITIONER WOULD BE GIVEN AN OPPORTUNITY TO BUTTRESS THE
PHYSICIAN'S EVIDENCE.  IF, AS THE COURT BELIEVES, INSUFFICIENT EVIDENCE
HAS BEEN OFFERED TO SUSTAIN A JURY VERDICT FOR THE PETITIONER, WE
SHOULD AT LEAST AUTHORIZE A NEW TRIAL.  CF. GARRISON V. UNITED STATES,
62 F.2D 41, 42. 

I BELIEVE THAT THERE IS A REASONABLE DIFFERENCE OF OPINION AS TO
WHETHER THE PETITIONER WAS TOTALLY AND PERMANENTLY DISABLED BY REASON
OF INSANITY ON MAY 31, 1919, AND THAT HIS CASE THEREFORE SHOULD HAVE
BEEN ALLOWED TO GO TO THE JURY.  THE TESTIMONY OF FELLOW SOLDIERS,
FRIENDS, SUPERVISORS, AND OF A MEDICAL EXPERT WHOSE INTEGRITY AND
ABILITY IS NOT CHALLENGED CANNOT BE REJECTED BY ANY PROCESS AVAILABLE
TO ME AS A JUDGE. 

FN1  "I CONSIDER TRIAL BY JURY AS THE ONLY ANCHOR EVER YET IMAGINED
BY MAN, BY WHICH A GOVERNMENT CAN BE HELD TO THE PRINCIPLES OF ITS
CONSTITUTION."  3 WRITINGS OF THOMAS JEFFERSON (WASHINGTON ED.)  71. 

THE OPERATION OF THE JURY TRIAL SYSTEM IN CIVIL CASES HAS BEEN
SUBJECT TO CAREFUL ANALYSIS; CLARK AND SHULMAN, JURY TRIAL IN CIVIL
CASES, 43 YALE L. JOUR.  867; HARRIS, IS THE JURY VANISHING, 7
N.Y.U.L.Q. 657.  ITS UTILITY HAS BEEN SHARPLY CRITICIZED; POUND, JURY -
ENGLAND AND UNITED STATES, 8 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 492;
MR. JUSTICE MILLER, THE SYSTEM OF TRIAL BY JURY, 21 AMERICAN L. REV.
859(1887).  ON THE OTHER HAND, THIS COURT HAS ON OCCASION WARMLY
PRAISED THIS MODE OF TRIAL:  "THE RIGHT OF JURY TRIAL IN CIVIL CASES AT
COMMON LAW IS A BASIC AND FUNDAMENTAL FEATURE OF OUR SYSTEM OF FEDERAL
JURISPRUDENCE WHICH IS PROTECTED BY THE SEVENTH AMENDMENT.  A RIGHT SO
FUNDAMENTAL AND SACRED TO THE CITIZEN, WHETHER GUARANTEED BY THE
CONSTITUTION OR PROVIDED BY STATUTE, SHOULD BE JEALOUSLY GUARDED BY THE
COURTS."  JACOB V. NEW YORK, 315 U.S. 752. 

FN2  FOR HAMILTON'S VIEWS ON THE PLACE OF THE JURY IN THE
CONSTITUTION, SEE THE FEDERALIST, NOS. 81 AND 83. 

FN3  "ONE OF THE STRONGEST OBJECTIONS ORIGINALLY TAKEN AGAINST THE
CONSTITUTION OF THE UNITED STATES, WAS THE WANT OF AN EXPRESS PROVISION
SECURING THE RIGHT OF TRIAL BY JURY IN CIVIL CASES."  PARSONS V.
BEDFORD, 3 PET. 433, 446.  OF THE SEVEN STATES WHICH, IN RATIFYING THE
CONSTITUTION, PROPOSED AMENDMENTS, SIX INCLUDED PROPOSALS FOR THE
PRESERVATION OF JURY TRIAL IN CIVIL CASES.  DOCUMENTS ILLUSTRATIVE OF
THE FORMATION OF THE CONSTITUTION, HOUSE DOC. NO. 398, 69TH CONG., 1ST
SESS., PP. 1019(MASSACHUSETTS), 1026(NEW HAMPSHIRE), 1029(VIRGINIA),
1036(NEW YORK), 1046(NORTH CAROLINA), 1054(RHODE ISLAND). 

FN4  3 ELLIOTT'S DEBATES, 324, 544.  EMPHASIS ADDED. 

FN5  THE EARLY PRACTICE UNDER WHICH JURIES WERE EMPOWERED TO
DETERMINE ISSUES OF LAW IN CRIMINAL CASES WAS NOT FORMALLY REJECTED BY
THIS COURT UNTIL 1894 IN SPARF V. UNITED STATES, 156 U.S. 51, WHEN THE
SUBJECT WAS EXHAUSTIVELY DISCUSSED.  SEE ALSO HOWE, JURIES AS JUDGES OF
CRIMINAL LAW, 52 HARV. L. REV. 582.  THIS JURY PRIVILEGE WAS ONCE
CONSIDERED OF HIGH VALUE; IN FACT, A PRINCIPAL COUNT IN THE IMPEACHMENT
PROCEEDINGS AGAINST JUSTICE CHASE IN 1805 WAS THAT HE HAD DENIED TO A
JURY THE RIGHT TO DETERMINE BOTH THE LAW AND THE FACT IN A CRIMINAL
CASE - A CHARGE WHICH JUSTICE CHASE DENIED.  REPORT OF TRIAL OF HON.
SAMUEL CHASE (1805), APPENDIX P. 17.  THIS PRIVILEGE IS STILL AT LEAST
NOMINALLY RETAINED FOR THE JURY IN SOME STATES.  HOWE, 614.  FOR A LATE
19TH CENTURY STATEMENT OF THIS VIEW SEE KANE V. COMMONWEALTH, 89 PA.
ST. 522(1879). 

FN6  SEE HOWE, SUPRA, PP. 597, 601, 605, 610; COFFIN V. COFFIN, 4
MASS. 1, 25; THAYER ON EVIDENCE (1898 ED.)  254.  AND SEE LECTURES
GIVEN BY JUSTICE WILSON AS PROFESSOR OF LAW AT THE COLLEGE OF
PHILADELPHIA IN 1790 AND 1792, THAYER, 254, AND SPARF V. UNITED STATES,
SUPRA, AT 158. 

FN7  I ASSUME FOR THE PURPOSE OF THIS DISCUSSION WITHOUT DECIDING THE
POINT THAT THE ADOPTION OF THE SEVENTH AMENDMENT WAS MEANT TO HAVE NO
LIMITING EFFECT ON THE CONTEMPORARY DEMURRER TO EVIDENCE PRACTICE. 

FN8  A METHOD USED IN EARLY ENGLAND OF REVERSAL OF A JURY VERDICT BY
THE PROCESS OF ATTAINT WHICH REQUIRED A REVIEW OF THE FACTS BY A NEW
JURY OF TWENTY-FOUR AND RESULTED IN PUNISHMENT OF THE FIRST JURY FOR
ITS ERROR, HAD DISAPPEARED.  PLUCKNETT, A CONCISE HISTORY OF THE COMMON
LAW (2D ED.), 121. 

FN9  IT IS DIFFICULT TO DESCRIBE BY ANY GENERAL PROPOSITION THE
CIRCUMSTANCES UNDER WHICH A NEW TRIAL WOULD BE ALLOWED UNDER EARLY
PRACTICE, SINCE EACH CASE WAS SO DEPENDENT ON ITS PECULIAR FACTS.  THE
EARLY PENNSYLVANIA RULE WAS PUT AS FOLLOWS:  "NEW TRIALS ARE FREQUENTLY
NECESSARY, FOR THE PURPOSE OF ATTAINING COMPLETE JUSTICE; BUT THE
IMPORTANT RIGHT OF TRIAL BY JURY REQUIRES THEY SHOULD NEVER BE GRANTED
WITHOUT SOLID AND SUBSTANTIAL REASONS; OTHERWISE THE PROVINCE OF
JURYMEN MIGHT BE OFTEN TRANSFERRED TO THE JUDGES, AND THEY INSTEAD OF
THE JURY, WOULD BECOME THE REAL TRIERS OF THE FACTS.  A REASONABLE
DOUBT, BARELY, THAT JUSTICE HAS NOT BEEN DONE, ESPECIALLY IN CASES
WHERE THE VALUE OR IMPORTANCE OF THE CAUSE IS NOT GREAT, APPEARS TO ME
TO BE TOO SLENDER A GROUND FOR THEM.  BUT, WHENEVER IT APPEARS WITH A
REASONABLE CERTAINTY, THAT ACTUAL AND MANIFEST INJUSTICE IS DONE, OR
THAT THE JURY HAVE PROCEEDED ON AN EVIDENT MISTAKE, EITHER IN POINT OF
LAW, OR FACT, OR CONTRARY TO STRONG EVIDENCE, OR HAVE GROSSLY
MISBEHAVED THEMSELVES, OR GIVEN EXTRAVAGANT DAMAGES; THE COURT WILL
ALWAYS GIVE AN OPPORTUNITY, BY A NEW TRIAL, OF RECTIFYING THE MISTAKES
OF THE FORMER JURY, AND OF DOING COMPLETE JUSTICE TO THE PARTIES." 
COWPERTHWAITE V. JONES, 2 DALL.  55(PHILA.  CT. CMN.  PLEAS 1790).  FOR
EXPRESSIONS IN SUBSTANTIAL ACCORD, SEE MARYLAND INSURANCE CO. V.
RUDEN'S ADMINISTRATOR, 6 CRANCH 338, 340; M'LANAHAN V. UNIVERSAL
INSURANCE CO., 1 PET. 170, 183.  FOR SIMILAR STATE PRACTICE, SEE UTICA
INSURANCE CO. V. BADGER, 3 WEND.  102(1829); NEW YORK FIREMEN INSURANCE
CO. V. WALDEN, 12 JOHNS.  513(1815).  THE MOTION FOR NEW TRIAL WAS
ADDRESSED TO THE DISCRETION OF THE TRIAL JUDGE AND WAS NOT REVIEWABLE
IN CRIMINAL OR CIVIL CASES.  UNITED STATES V. DANIEL$N, 6 WHEAT.  542,
548; BROWN V. CLARKE, 4 HOW.  4, 15.  THE NUMBER OF NEW TRIALS
PERMITTED IN A GIVEN CASE WERE USUALLY LIMITED TO TWO OR THREE; SEE
E.G. LOUISVILLE & NASHVILLE R. CO. V. WOODSON, 134 U.S. 614.  THE POWER
OF THE JUDGE WAS THUS LIMITED TO HIS AUTHORITY TO RETURN THE CASE TO A
NEW JURY FOR A NEW DECISION. 

FN10  CF. BALTIMORE & CAROLINA LINE V. REDMAN, 295 U.S. 654; AETNA
INSURANCE CO. V. KENNEDY, 301 U.S. 389.  SEE RULE 50(B) OF THE RULES OF
CIVIL PROCEDURE; MONTGOMERY WARD & CO. V. DUNCAN, 311 U.S. 243; BERRY
V. UNITED STATES, 312 U.S. 450. 

FN11  I DO NOT MEAN TO MINIMIZE OTHER FORMS OF JUDICIAL CONTROL.  IN
A SUMMARY OF IMPORTANT TECHNIQUES OF JUDICIAL DOMINATION OF THE JURY,
THAYER LISTS THE FOLLOWING:  CONTROL BY THE REQUIREMENT OF A
"REASONABLE JUDGMENT" - I.E., ONE SATISFACTORY TO THE JUDGE; CONTROL OF
THE RULES OF "PRESUMPTION," CF. THE DISSENTING OPINION IN NEW YORK LIFE
INSURANCE CO. V. GAMER, 303 U.S. 161, 172; THE CONTROL OF THE
"DEFINITION OF LANGUAGE"; THE CONTROL OF RULES OF PRACTICE, AND FORMS
OF PLEADING ("IT IS REMARKABLE HOW JUDGES AND LEGISLATURES IN THIS
COUNTRY ARE UNCONSCIOUSLY TRAVELLING BACK TOWARDS THE OLD RESULT OF
CONTROLLING THE JURY, BY REQUIRING SPECIAL VERDICTS AND ANSWERS TO
SPECIFIC QUESTIONS.  LOGIC AND NEATNESS OF LEGAL THEORY HAVE ALWAYS
CALLED LOUD, AT LEAST IN RECENT CENTURIES, FOR SPECIAL VERDICTS.  ...
CONSIDERATIONS OF POLICY HAVE CALLED LOUDER FOR LEAVING TO THE JURY A
FREER HAND."  218); THE CONTROL OF "MIXED QUESTIONS OF LAW AND FACT";
THE CONTROL OF FACTUAL DECISIONS BY APPELLATE COURTS.  THAYER ON
EVIDENCE (1898 ED.)  P. 208 ET SEQ. 

FN12  COUNSEL SEEKING THE DIRECTED VERDICT SAID:  "THIS PREROGATIVE
OF THE COURT IS NEVER EXERCISED, BUT IN CASES WHERE THE EVIDENCE IS SO
INDEFINITE AND UNSATISFACTORY, THAT NOTHING BUT WILD, IRRATIONAL
CONJECTURE, OR LICENTIOUS SPECULATION, COULD INDUCE THE JURY TO
PRONOUNCE THE VERDICT WHICH IS SOUGHT AT THEIR HANDS."  PARKS V. ROSS,
SUPRA, AT 372. 

FN13  SEE ALSO, PLEASANTS V. FANT, 22 WALL.  116(1874); OSCANYAN V.
ARMS CO., 103 U.S. 261(1880); AND BAYLIS V. TRAVELLERS' INSURANCE CO.,
113 U.S. 316(1884).  FOR AN EXCELLENT DISCUSSION OF THE HISTORY OF THE
DIRECTED VERDICT, SEE HACKETT, HAS A TRIAL JUDGE OF A UNITED STATES
COURT THE RIGHT TO DIRECT A VERDICT?, 24 YALE L. JOUR.  127. 

FN14  RULE 50(B) OF THE RULES OF CIVIL PROCEDURE AND NOTE 10, SUPRA. 

FN15  IN THE PERIOD OF THE CIVIL WAR, THE FORMULA CHANGED SLIGHTLY
BUT ITS EFFECT WAS THE SAME - IF THE EVIDENCE SO MUCH AS "TENDED TO
PROVE THE POSITION" OF THE PARTY, THE CASE WAS FOR THE JURY.  DRAKELY
V. GREGG, 8 WALL.  242, 268; HICKMAN V. JONES, 9 WALL.  197, 201;
BARNEY V. SCHMEIDER, 9 WALL.  248, 253.  CF. UNITED STATES V.
BREITLING, 20 HOW.  252; GOODMAN V. SIMONDS, 20 HOW.  343, 359. 

FN16  FOR EXAMPLES OF EARLY RESPECT FOR JURIES, SEE MORTON V.
FAIRBANKS, 11 PICK.  368(1831); WAY V. ILLINOIS CENTRAL R. CO., 35 IOWA
585(1873).  FOR THE DEVELOPMENT IN ILLINOIS, SEE 8 ILL. L. REV. 287,
481-486.  FOR THE PENNSYLVANIA DEVELOPMENT, COMPARE FITZWATER V. STOUT,
16 PA. ST. 22, AND THOMAS V. THOMAS, 21 PA. ST. 315, WITH HYATT V.
JOHNSTON, 91 PA. ST. 196, 200. 

FN17  ONE ADDITIONAL DEVICE WAS THE REMITTITUR PRACTICE WHICH GIVES
THE COURT A METHOD OF CONTROLLING JURY FINDINGS AS TO DAMAGES. 
ARKANSAS VALLEY CO. V. MANN, 130 U.S. 69. 

FN18  IN EWING V. BURNET, 11 PET. 41, 51, THIS COURT SAID:  "IT WAS
ALSO THEIR (THE JURY'S) PROVINCE TO JUDGE OF THE CREDIBILITY OF THE
WITNESSES, AND THE WEIGHT OF THEIR TESTIMONY, AS TENDING, IN A GREATER
OR LESS DEGREE, TO PROVE THE FACTS RELIED ON; AS THESE WERE MATTERS
WITH WHICH THE COURT COULD NOT INTERFERE, THE PLAINTIFF'S RIGHT TO THE
INSTRUCTION ASKED, MUST DEPEND UPON THE OPINION OF THE COURT, ON A
FINDING BY THE JURY IN FAVOUR OF THE DEFENDANT, ON EVERY MATTER WHICH
THE EVIDENCE CONDUCED TO PROVE; GIVING FULL CREDENCE TO THE WITNESSES
PRODUCED BY HIM, AND DISCREDITING THE WITNESS FOR THE PLAINTIFF." 
FN19  ANOTHER PHASE OF THIS SAME CONFLICT ARISES IN THE USE OF JUDICIAL
POWER TO PUNISH FOR CONTEMPT OF COURT WITHOUT ALLOWANCE OF JURY TRIAL. 
NELLES AND KING, CONTEMPT BY PUBLICATION, 28 COL. L. REV. 400, 524,
AND, FOR A SHARP INDICTMENT OF THE FREE USE OF CONTEMPT JURISDICTION AS
BASICALLY UNDEMOCRATIC, 553; NYE V. UNITED STATES, 313 U.S. 33; BRIDGES
V. CALIFORNIA, 314 U.S. 252. 

FN20  HOWE, SUPRA, 615, 616.  HOWE CONTINUES:  "WHAT SEEMS
DISCREDITABLE TO THE JUDICIARY IN THE STORY WHICH I HAVE RELATED IS THE
FIERCE RESOLUTION AND DECEPTIVE INGENUITY WITH WHICH THE COURTS HAVE
REFUSED TO CARRY OUT THE UNQUALIFIED MANDATE OF STATUTES AND
CONSTITUTIONS.  IT IS POSSIBLE TO FEEL THAT THE FINAL SOLUTION OF THE
PROBLEM HAS BEEN WISE WITHOUT APPROVING THE FREQUENTLY ARROGANT METHODS
WHICH COURTS HAVE USED IN REACHING THAT RESULT." 

FN21  THIS COURT HAS SAID OF ONE TYPE OF CASE IN RICHMOND & DANVILLE
R. CO. V. POWERS, 149 U.S. 43, 45(1893):  "IT IS WELL SETTLED THAT
WHERE THERE IS UNCERTAINTY AS TO THE EXISTENCE OF EITHER NEGLIGENCE OR
CONTRIBUTORY NEGLIGENCE, THE QUESTION IS NOT ONE OF LAW, BUT OF FACT,
AND TO BE SETTLED BY A JURY; AND THIS, WHETHER THE UNCERTAINTY ARISES
FROM A CONFLICT IN THE TESTIMONY, OR BECAUSE THE FACTS BEING
UNDISPUTED, FAIR MINDED MEN WILL HONESTLY DRAW DIFFERENT CONCLUSIONS
FROM THEM." 
..END :
















COMMUNICATIONS COMM'N V. N.B.C., 319 U.S. 239 


NO. 585.  ARGUED APRIL 8, 9, 1943.  - DECIDED MAY 17, 1943.  - 132 F.2D
545, AFFIRMED. 


1.  THE PROPRIETOR OF A BROADCASTING STATION WHOSE LICENSE FROM THE
FEDERAL COMMUNICATIONS COMMISSION ENTITLES HIM TO EMPLOY A SPECIFIED
FREQUENCY AND A SPECIFIED POWER AND ASSIGNS TO HIM A CLEAR CHANNEL AT
NIGHT FREE FROM ELECTRICAL INTERFERENCE IS ENTITLED UNDER SEC. 312(B)
OF THE FEDERAL COMMUNICATIONS COMMISSION ACT TO BE MADE A PARTY TO A
PROCEEDING BEFORE THE COMMISSION LOOKING TO THE GRANTING OF AN
APPLICATION OF ANOTHER STATION OPERATING UPON THE SAME FREQUENCY FOR AN
INCREASE OF POWER AND FOR THE RIGHT TO OPERATE AT NIGHT, THE EFFECT OF
WHICH MAY BE BY ELECTRICAL INTERFERENCE TO DEPRIVE THE FIRST LICENSEE
OF HIS CLEAR CHANNEL, THUS MODIFYING HIS LICENSE.  P. 243. 

2.  ERROR OF THE FEDERAL COMMUNICATIONS COMMISSION IN DENYING THE
FIRST LICENSEE THE RIGHT TO INTERVENE IN SUCH PROCEEDINGS WAS NOT CURED
BY PERMISSION TO FILE A BRIEF AND PRESENT ORAL ARGUMENT.  P. 246. 

3.  IN THE SITUATION ABOVE STATED, THE FIRST LICENSEE WAS ENTITLED BY
SEC. 402(B)(2) OF THE ACT TO APPEAL TO THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA FROM THE ACTION OF THE COMMISSION IN DENYING TO
HIM THE RIGHT TO INTERVENE AND FROM THE ORDER OF THE COMMISSION
GRANTING THE APPLICATION TO THE OTHER LICENSEE.  P. 246. 

FEDERAL COMMUNICATIONS COMMISSION V. NATIONAL BROADCASTING CO., INC.
(KOA) ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 317 U.S. 624, TO REVIEW A JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA REVERSING AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS IMPORTANT QUESTIONS OF PROCEDURE ARISING UNDER
TITLE III OF THE COMMUNICATIONS ACT OF 1934.  FN1 

THE RESPONDENT IS LICENSED TO OPERATE STATION KOA AT DENVER,
COLORADO, ON A FREQUENCY OF 850 KILOCYCLES.  STATION WHDH, OF BOSTON,
MASSACHUSETTS, HAD A LICENSE TO OPERATE, DAYTIME ONLY, ON THE SAME
FREQUENCY.  OCTOBER 25, 1938, WHDH APPLIED TO THE COMMUNICATIONS
COMMISSION FOR AN INCREASE IN POWER AND FOR OPERATION UNLIMITED IN
TIME.  THE COMMISSION SET DOWN THE APPLICATION AND DESIGNATED CERTAIN
ISSUES FOR HEARING, OF WHICH THE FOLLOWING ARE PERTINENT:  TO DETERMINE
WHETHER THE INTERESTS OF ANY OTHER STATIONS MAY BE ADVERSELY AFFECTED
BY REASON OF INTERFERENCE, PARTICULARLY KOA AND OTHER NAMED STATIONS;
TO DETERMINE WHETHER PUBLIC INTEREST, CONVENIENCE OR NECESSITY WOULD BE
SERVED BY MODIFYING THE RULES GOVERNING STANDARD BROADCAST STATIONS TO
AUTHORIZE THE PROPOSED OPERATION OF WHDH. 

THE COMMISSION'S RULES PRECLUDED THE OPERATION OF A SECOND STATION AT
NIGHT ON KOA'S FREQUENCY; FN2  PROVIDED THAT AN APPLICATION NOT FILED
IN ACCORDANCE WITH ITS REGULATIONS WOULD BE DEEMED DEFECTIVE, WOULD NOT
BE CONSIDERED, AND WOULD BE RETURNED TO THE APPLICANT; FN3  AND ALSO
THAT IF AN APPLICANT DESIRED TO CHALLENGE THE VALIDITY OR WISDOM OF ANY
RULE OR REGULATION HE MUST SUBMIT A PETITION SETTING FORTH THE DESIRED
CHANGE AND THE REASONS IN SUPPORT THEREOF.  FN4 

THE RESPONDENT PETITIONED TO INTERVENE.  ITS PETITION WAS DENIED.  IT
THEN MOVED TO DISMISS WHDH'S APPLICATION FOR FAILURE TO CONFORM TO THE
RULES AND REGULATIONS.  THE MOTION WAS DENIED.  MEANTIME THE COMMISSION
EVIDENTLY BELIEVING THAT, IN VIEW OF THE POSSIBLE ALTERATION OF THE
RULES CONCERNING STANDARD BROADCAST STATIONS, QUESTIONS OF POLICY MIGHT
BE INVOLVED AND THAT, CONSEQUENTLY, UNDER SEC. 409(A), THE HEARING
WOULD HAVE TO BE CONDUCTED BY A MEMBER OF THE COMMISSION,  FN5
DESIGNATED COMMISSIONER CASE TO CONDUCT THE HEARING. 

NO HEARING WAS HELD UNDER THE ORIGINAL NOTICE.  A NEW NOTICE WAS
ISSUED WHICH INDICATED THAT THE COMMISSION DID NOT THEN CONTEMPLATE
MODIFICATION OF ITS SUBSTANTIVE RULES BUT INTENDED MERELY TO AFFORD THE
APPLICANT AN OPPORTUNITY TO URGE THAT THEY BE CONSTRUED IN THE
APPLICANT'S FAVOR.  ISSUES SPECIFIED IN THE SECOND NOTICE WERE "TO
DETERMINE WHETHER OR NOT THE COMMISSION'S RULES GOVERNING STANDARD
BROADCAST STATIONS, PARTICULARLY SECTIONS 3.22 AND 3.25(PART III)
PROPERLY INTERPRETED AND APPLIED PRECLUDE THE GRANTING OF THE
APPLICATION" AND TO DETERMINE THE NATURE, EXTENT, AND EFFECT OF ANY
INTERFERENCE WHICH WOULD RESULT FROM A GRANT OF THE APPLICATION,
PARTICULARLY WITH STATION KOA AND OTHERS NAMED.  THE INQUIRY THUS
LIMITED COULD BE HEARD BEFORE AN EXAMINER UNDER SEC. 409(A) AND,
ACCORDINGLY, THE COMMISSION WITHDREW THE DESIGNATION OF COMMISSIONER
CASE AND ASSIGNED AN EXAMINER. 

A HEARING WAS HELD JANUARY 29 AND 30, 1940, BUT THE RESPONDENT WAS
NOT PERMITTED TO APPEAR OR PARTICIPATE.  DECEMBER 9, 1940, THE
COMMISSION PROMULGATED PROPOSED FINDINGS OF FACT AND CONCLUSIONS.  TWO
COMMISSIONERS DISSENTED.  ALL AGREED THAT SECS. 3.22 AND 3.25 OF THE
REGULATIONS PRECLUDED A GRANT OF WHDH'S APPLICATION.  THREE VOTED TO
MODIFY THOSE REGULATIONS AND TO GRANT THE APPLICATION.  RESPONDENT THEN
FILED ITS SECOND PETITION TO INTERVENE, WHICH WAS DENIED.  THE
COMMISSION SUBSEQUENTLY, ON ITS OWN MOTION, PERMITTED RESPONDENT TO
FILE BRIEFS AND PRESENT AN ORAL ARGUMENT AMICUS CURIAE.  APRIL 7, 1941,
THE COMMISSION ADOPTED A FINAL ORDER AMENDING SEC. 3.25 OF THE RULES
AND GRANTING THE WHDH APPLICATION, TWO COMMISSIONERS DISSENTING. 

RESPONDENT FILED A PETITION FOR REHEARING PURSUANT TO SEC. 405 OF THE
ACT.  FN6  THIS WAS DENIED.  THEREUPON RESPONDENT GAVE NOTICE OF APPEAL
TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA,  FN7  WHICH
CONCLUDED THAT THE COMMISSION'S ACTION EFFECTED A MODIFICATION OF
RESPONDENT'S LICENSE AND CONSEQUENTLY THE STATUTE ENTITLED THE
RESPONDENT TO BE MADE A PARTY AND TO PARTICIPATE IN THE HEARING.  THE
COURT BELOW THEREFORE REVERSED THE COMMISSION'S ORDER AND REMANDED THE
CASE FOR FURTHER PROCEEDINGS.  FN8 

THE RESPONDENT CONTENDS THAT IT WAS ENTITLED, AS A MATTER OF RIGHT,
TO PARTICIPATE IN THE HEARING BEFORE THE COMMISSION ON THE QUESTION OF
THE GRANTING OF WHDH'S APPLICATION AND THAT ITS RIGHTS IN THIS RESPECT
WERE NOT SATISFIED BY PERMITTING IT TO FILE A BRIEF AND PRESENT
ARGUMENT.  IT FURTHER INSISTS THAT THE COMMISSION'S PROCEEDING WAS
INVALID DUE TO THE PROVISIONS OF SEC. 409(A) OF THE STATUTE, THE
FAILURE TO COMPLY WITH THE RULES THEN IN FORCE, AND THE ARBITRARY AND
CAPRICIOUS ACTION TAKEN.  FINALLY, THE RESPONDENT ASSERTS SEC. 405
ENTITLED IT TO A REHEARING AND SEC. 402(B)(2) GRANTED IT AN APPEAL. 

THE PETITIONER URGES THAT THE GRANT OF WHDH'S APPLICATION DID NOT
AMOUNT TO A SUBSTANTIAL MODIFICATION OF KOA'S LICENSE OR SO AFFECT
KOA'S RIGHTS AS TO REQUIRE THAT KOA BE PERMITTED TO INTERVENE, AND
THAT, IN ANY EVENT, KOA WAS NOT DENIED ANY SUBSTANTIAL RIGHT OF
PARTICIPATION IN THE PROCEEDING. 

FIRST.  WE ARE OF OPINION THAT RESPONDENT WAS ENTITLED TO BE MADE A
PARTY. 


"ANY STATION LICENSE HEREAFTER GRANTED  ...  MAY BE MODIFIED BY THE
COMMISSION  ...  , IF IN THE JUDGMENT OF THE COMMISSION SUCH ACTION
WILL PROMOTE THE PUBLIC INTEREST, CONVENIENCE, AND NECESSITY  ...
PROVIDED, HOWEVER, THAT NO SUCH ORDER OF MODIFICATION SHALL BECOME
FINAL UNTIL THE HOLDER OF SUCH OUTSTANDING LICENSE  ...  SHALL HAVE
BEEN NOTIFIED IN WRITING OF THE PROPOSED ACTION AND THE GROUNDS OR
REASONS THEREFOR AND SHALL HAVE BEEN GIVEN REASONABLE OPPORTUNITY TO
SHOW CAUSE WHY SUCH AN ORDER OF MODIFICATION SHOULD NOT ISSUE." 

THE COMMISSION FOUND THAT THERE WOULD BE INTERFERENCE WITH KOA'S
BROADCAST IN THE EASTERN PART OF THE UNITED STATES IF WHDH'S
APPLICATION WERE GRANTED.  THE COMMISSION'S OWN REPORTS TO CONGRESS
SHOW THAT AT NIGHT A SMALL PROPORTION OF THE URBAN POPULATION AND A
MUCH LARGER PROPORTION OF THE RURAL POPULATION OF THE COUNTRY ENJOY
ONLY SUCH BROADCASTING SERVICE AS IS AFFORDED BY CLEAR CHANNEL
STATIONS.  KOA, ONE OF THE STATIONS UPON WHICH THIS SERVICE DEPENDS,
HAS OPERATED CONTINUOUSLY AT DENVER SINCE 1924 AND HAS USED A CLEAR
CHANNEL UPON WHICH ONLY ONE STATION IS PERMITTED TO OPERATE DURING THE
NIGHT.  UNDER THE COMMISSION'S REGULATIONS (SECS. 3.22 AND 3.25) KOA
HAD, THEREFORE, LITTLE OR NO CHANNEL INTERFERENCE FROM ANY STATION
LOCATED WITHIN THE UNITED STATES.  IN ADDITION, ITS SIGNALS THROUGHOUT
THE UNITED STATES WERE FREE, AND ENTITLED TO REMAIN FREE, OF CHANNEL
INTERFERENCE FROM ANY STATION IN CANADA, MEXICO OR CUBA, PURSUANT TO
THE PROVISIONS OF THE NORTH AMERICAN REGIONAL BROADCASTING AGREEMENT. 
FN9  THE COMMISSION'S ORDER DEPRIVES KOA OF FREEDOM FROM INTERFERENCE
IN ITS NIGHT SERVICE OVER A LARGE AREA LYING EAST OF THE MISSISSIPPI
RIVER.  FURTHERMORE, THE ORDER OPENS THE WAY FOR CANADA, MEXICO, AND
CUBA, SIGNATORIES TO THE BROADCASTING AGREEMENT, TO ACQUIRE THE RIGHT
TO OPERATE STATIONS WHICH MAY CAUSE CHANNEL INTERFERENCE AT NIGHT ON
KOA'S FREQUENCY WITHIN THE UNITED STATES. 

THE RESPONDENT URGES THAT IT CAN BE SHOWN THAT THE SERVICE OF WHDH,
WHILE INTERFERING AT NIGHT WITH THAT OF KOA, WOULD NOT BE A SERVICE
EQUALLY USEFUL, AND THAT THE GRANT TO WHDH ADDS A NEW PRIMARY SERVICE
TO AN AREA ALREADY HEAVILY SUPPLIED WITH SUCH SERVICE.  IN ITS
PETITIONS TO INTERVENE, THE RESPONDENT CALLED ATTENTION TO THE TERMS OF
ITS EXISTING LICENSE, ASSERTING THAT THE GRANT OF WHDH'S APPLICATION
WOULD CAUSE INTERFERENCE IN AREAS WHERE KOA'S SIGNAL WAS INTERFERENCE
FREE; THAT RESPONDENT WOULD BE AGGRIEVED AND ITS INTERESTS ADVERSELY
AFFECTED BY A GRANT OF THE APPLICATION AND THAT THE OPERATION PROPOSED
BY WHDH WOULD NOT BE IN THE INTEREST OF PUBLIC CONVENIENCE AND
NECESSITY; THAT A GRANT OF THE APPLICATION WOULD RESULT IN A
MODIFICATION OF RESPONDENT'S LICENSE IN VIOLATION OF SEC. 312(B) AND
WOULD RESULT IN A MODIFICATION OF THE COMMISSION'S REGULATIONS WITHOUT
SUCH A HEARING AS IS REQUIRED BY SEC. 303(F) OF THE ACT.  IN ITS
PETITION FOR REHEARING, THE RESPONDENT ELABORATED AND REITERATED THE
REASONS EMBODIED IN ITS MOTIONS FOR DISMISSAL OF THE PETITION AND IN
ITS PETITIONS TO INTERVENE. 

THE COMMISSION SAYS THAT THE SECTION HAS NO APPLICATION TO THIS
CASE.  IT ASSERTS THAT THE PROCEEDING WAS AN APPLICATION BY WHDH FOR
MODIFICATION OF ITS STATION LICENSE AND THAT, UNDER SEC. 309(A) OF THE
ACT, THE COMMISSION MIGHT HAVE ACTED ON THE APPLICATION WITHOUT ANY
HEARING.  SO MUCH MAY BE CONCEDED, IF NOTHING MORE WERE INVOLVED.  BUT
THE GRANT OF WHDH'S APPLICATION, IN THE CIRCUMSTANCES, NECESSARILY
INVOLVED THE MODIFICATION OF KOA'S OUTSTANDING LICENSE.  THIS
PETITIONER DENIES, SAYING KOA'S LICENSE GRANTED NO MORE THAN THE
PRIVILEGE OF OPERATING ITS STATION IN A PRESCRIBED MANNER AND THAT THE
GRANT OF WHDH'S APPLICATION IN NOWISE ALTERED THE TERMS OF KOA'S
LICENSE.  THIS CONTENTION STEMS FROM THE CIRCUMSTANCE THAT KOA'S
LICENSE AUTHORIZES IT TO OPERATE A TRANSMITTER OF 50 KILOWATTS ON THE
FREQUENCY 850 KILOCYCLES AT DENVER.  THE PETITIONER SAYS THAT THE GRANT
OF WHDH'S APPLICATION AFFECTS NONE OF THESE TERMS.  BUT WE THINK THIS
TOO NARROW A VIEW.  WHEN KOA'S LICENSE WAS GRANTED THE COMMISSION'S
RULES SECS. 3.21 AND 3.25 EMBODIED THESE PROVISIONS: 

"A 'CLEAR CHANNEL' IS ONE ON WHICH THE DOMINANT STATION OR STATIONS
RENDER SERVICE OVER WIDE AREAS AND WHICH ARE CLEARED OF OBJECTIONABLE
INTERFERENCE WITHIN THEIR PRIMARY SERVICE AREAS AND OVER ALL OR A
SUBSTANTIAL PORTION OF THEIR SECONDARY SERVICE AREAS." 

"THE FREQUENCIES IN THE FOLLOWING TABULATION ARE DESIGNATED AS CLEAR
CHANNELS AND ASSIGNED FOR USE BY THE CLASSES OF STATIONS ARE GIVEN: 

"(A)  TO EACH OF THE CHANNELS BELOW THERE WILL BE ASSIGNED ONE CLASS
I STATION AND THERE MAY BE ASSIGNED ONE OR MORE CLASS II STATIONS
OPERATING LIMITED TIME OR DAYTIME ONLY:  ...  THE POWER OF THE CLASS I
STATIONS ON THESE CHANNELS SHALL NOT BE LESS THAN 50 KILOWATTS." 

850 KILOCYCLES WAS ONE OF THE FREQUENCIES APPEARING ON THE SCHEDULE
FORMING PART OF THE RULE. 

THESE RULES WERE INCORPORATED INTO THE TERMS OF KOA'S LICENSE WHICH
GRANTED IT A FREQUENCY OF 850 KILOCYCLES AND A POWER OF 50 KILOWATTS. 
TO ALTER THE RULES SO AS TO DEPRIVE KOA OF WHAT HAD BEEN ASSIGNED TO
IT, AND TO GRANT AN APPLICATION WHICH WOULD CREATE INTERFERENCE ON THE
CHANNEL GIVEN IT, WAS IN FACT AND IN SUBSTANCE TO MODIFY KOA'S
LICENSE.  THIS BEING SO, SEC. 312(B) REQUIRES THAT IT BE MADE A PARTY
TO THE PROCEEDING.  WE CAN ACCORD NO OTHER MEANING TO THE LANGUAGE OF
THE PROVISO WHICH REQUIRES THAT THE HOLDER OF THE LICENSE WHICH IS TO
BE MODIFIED MUST HAVE NOTICE IN WRITING OF THE PROPOSED ACTION AND THE
GROUNDS THEREFOR AND MUST BE GIVEN A REASONABLE OPPORTUNITY TO SHOW
CAUSE WHY AN ORDER OF MODIFICATION SHOULD NOT ISSUE.  CERTAINLY ONE WHO
IS TO BE NOTIFIED OF A HEARING AND TO HAVE THE RIGHT TO SHOW CAUSE IS
NOT TO BE CONSIDERED A STRANGER TO THE PROCEEDING BUT IS, BY THE VERY
PROVISIONS OF THE STATUTE, TO BE MADE A PARTY.  THE VERY NOTICES ISSUED
BY THE COMMISSION SHOW THAT THAT BODY KNEW THERE WOULD PROBABLY BE AN
INTERFERENCE WITH KOA'S SIGNALS IF THE PENDING APPLICATION OF WHDH WERE
GRANTED; AND THAT THE COMMISSION ALSO REALIZED THERE WAS A SERIOUS
QUESTION WHETHER THE APPLICATION COULD BE GRANTED UNDER ITS EXISTING
RULES.  IT IS NOT NECESSARY TO DISCUSS AT ANY LENGTH THE SUFFICIENCY OF
THE PETITIONS TO INTERVENE IF, AS WE HAVE HELD, THE ACT ITSELF PROVIDED
THAT, IN SUCH AN INSTANCE AS THE PRESENT, KOA WAS ENTITLED TO BE
BROUGHT IN AS A PARTY.  A LICENSEE CANNOT SHOW CAUSE UNLESS IT IS
AFFORDED OPPORTUNITY TO PARTICIPATE IN THE HEARING, TO OFFER EVIDENCE,
AND TO EXERCISE THE OTHER RIGHTS OF A PARTY. 

MUCH IS SAID TO THE EFFECT THAT KOA WAS NOT IN FACT INJURED, BECAUSE
THE COMMISSION PERMITTED IT TO FILE A BRIEF AMICUS CURIAE AND TO
PRESENT ORAL ARGUMENT.  IT IS BESIDE THE POINT TO DISCUSS THE
COMMISSION'S RULES AS TO INTERVENTION AND THE PRIVILEGES ACCORDED BY
THE COMMISSION TO ONE DENIED INTERVENTION, SINCE WE ARE OF OPINION, AS
ALREADY STATED, THAT, UNDER THE TERMS OF THE ACT, THE RESPONDENT WAS
ENTITLED TO PARTICIPATE IN THE PROCEEDINGS. 

SECOND.  WHILE THE COMMISSION DID NOT URGE BEFORE THE COURT BELOW,
AND DID NOT ADVANCE AS A REASON FOR THE GRANT OF CERTIORARI, THAT
RESPONDENT WAS NOT ENTITLED TO APPEAL TO THE COURT OF APPEALS, THIS
MATTER WAS ARGUED HERE AND, AS IT RAISES A QUESTION OF JURISDICTION, WE
SHALL CONSIDER IT. 

IT WOULD BE ANOMALOUS IF ONE ENTITLED TO BE HEARD BEFORE THE
COMMISSION SHOULD BE DENIED THE RIGHT OF APPEAL FROM AN ORDER MADE
WITHOUT HEARING.  WE THINK THE ACT DOES NOT PRECLUDE SUCH AN APPEAL. 
DISTRICT OF COLUMBIA BY "ANY  ...  PERSON AGGRIEVED OR WHOSE INTERESTS
ARE ADVERSELY AFFECTED BY ANY DECISION OF THE COMMISSION GRANTING OR
REFUSING" ANY APPLICATION FOR MODIFICATION OF AN EXISTING STATION
LICENSE.  IF, WITHIN THE INTENT OF THE STATUTE, THE INTERESTS OF KOA
WOULD BE ADVERSELY AFFECTED, OR IF KOA WOULD BE AGGRIEVED BY GRANTING
THE APPLICATION OF WHDH, THEN THE STATUTE GRANTS KOA A RIGHT OF
APPEAL.    IN FEDERAL COMMUNICATIONS COMMISSION V. SANDERS BROS. RADIO
STATION, 309 U.S. 470, WE DEALT WITH A SIMILAR SITUATION.  THERE THE
QUESTION WAS WHETHER A RIVAL STATION, WHICH WOULD SUFFER ECONOMIC
INJURY BY THE GRANT OF A LICENSE TO ANOTHER STATION, HAD STANDING TO
APPEAL UNDER THE TERMS OF THE ACT.  WE HELD THAT IT HAD.  WE POINTED
OUT THAT WHILE A STATION LICENSE WAS NOT A PROPERTY RIGHT, AND WHILE
THE COMMISSION WAS NOT BOUND TO GIVE CONTROLLING WEIGHT TO ECONOMIC
INJURY TO AN EXISTING STATION CONSEQUENT UPON THE ISSUANCE OF A LICENSE
TO ANOTHER STATION, YET ECONOMIC INJURY GAVE THE EXISTING STATION
STANDING TO PRESENT QUESTIONS OF PUBLIC INTEREST AND CONVENIENCE BY
APPEAL FROM THE ORDER OF THE COMMISSION.  HERE KOA, WHILE NOT ALLEGING
ECONOMIC INJURY, DOES ALLEGE THAT ITS LICENSE OUGHT NOT TO BE MODIFIED
BECAUSE SUCH ACTION WOULD CAUSE ELECTRICAL INTERFERENCE WHICH WOULD BE
DETRIMENTAL TO THE PUBLIC INTEREST. 

IN VIEW OF THE FACT THAT SEC. 312(B) GRANTS KOA THE RIGHT TO BECOME A
PARTY TO THE PROCEEDINGS, WE THINK IT PLAIN THAT IT IS A PARTY
AGGRIEVED, OR A PARTY WHOSE INTERESTS WILL BE ADVERSELY AFFECTED BY THE
GRANT OF WHDH'S APPLICATION, AS INDEED THE COMMISSION SEEMS TO HAVE
THOUGHT WHEN IT FIRST NOTICED WHDH'S APPLICATION FOR HEARING.  WE,
THEREFORE, HOLD KOA WAS ENTITLED TO APPEAL FROM THE COMMISSION'S ACTION
IN EXCLUDING IT FROM PARTICIPATION IN THE PROCEEDING AND FROM THE ORDER
MADE BY THE COMMISSION. 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF JUNE 19, 1934, C. 652, 48 STAT. 1064, 1081; 47 U.S.C.
SEC. 301 FF. 

FN2  SECS. 3.22 AND 3.25. 

FN3  SEC. 1.72. 

FN4  SEC. 1.71. 

FN5  SEC. 409(A), 47 U.S.C. SEC. 409(A) PROVIDES THAT, IN THE
ADMINISTRATION OF TIT. III, AN EXAMINER MAY NOT HOLD HEARINGS WITH
RESPECT TO A MATTER INVOLVING A CHANGE OF POLICY BY THE COMMISSION OR A
NEW KIND OF USE OF FREQUENCIES. 

FN6  47 U.S.C. SEC. 405. 

FN7  PURSUANT TO SEC. 402(B)(2); 47 U.S.C. SEC. 402(B)(2). 

FN8  132 F.2D 545. 

FN9  55 STAT., PART 2, 1005. 

MR. JUSTICE BLACK, MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

UNLIKE COURTS, WHICH ARE CONCERNED PRIMARILY WITH THE ENFORCEMENT OF
PRIVATE RIGHTS ALTHOUGH PUBLIC INTERESTS MAY THEREBY BE IMPLICATED,
ADMINISTRATIVE AGENCIES ARE PREDOMINANTLY CONCERNED WITH ENFORCING
PUBLIC RIGHTS ALTHOUGH PRIVATE INTERESTS MAY THEREBY BE AFFECTED.  TO
NO SMALL DEGREE ADMINISTRATIVE AGENCIES FOR THE ENFORCEMENT OF PUBLIC
RIGHTS WERE ESTABLISHED BY CONGRESS BECAUSE MORE FLEXIBLE AND LESS
TRADITIONAL PROCEDURES WERE CALLED FOR THAN THOSE EVOLVED BY THE
COURTS.  IT IS THEREFORE ESSENTIAL TO THE VITALITY OF THE
ADMINISTRATIVE PROCESS THAT THE PROCEDURAL POWERS GIVEN TO THESE
ADMINISTRATIVE AGENCIES NOT BE CONFINED WITHIN THE CONVENTIONAL MODES
BY WHICH BUSINESS IS DONE IN COURTS. 

IN MY JUDGMENT THE DECISION OF THE COURT IN THIS CASE IMPOSES A
HAMPERING RESTRICTION UPON THE FUNCTIONING OF THE ADMINISTRATIVE
PROCESS.  THIS IS THE ASPECT THAT LENDS THIS CASE IMPORTANCE AND LEADS
ME TO EXPRESS THE REASONS FOR MY DISSENT. 

THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1064, 47 U.S.C. SEC. 151 ET
SEQ., DIRECTS THE FEDERAL COMMUNICATIONS COMMISSION TO "CLASSIFY RADIO
STATIONS," "PRESCRIBE THE NATURE OF THE SERVICE TO BE RENDERED BY EACH
CLASS OF LICENSED STATIONS AND EACH STATION WITHIN ANY CLASS," AND
"ASSIGN BANDS OF FREQUENCIES TO THE VARIOUS CLASSES OF STATIONS, AND
ASSIGN FREQUENCIES FOR EACH INDIVIDUAL STATION AND DETERMINE THE POWER
WHICH EACH STATION SHALL USE AND THE TIME DURING WHICH IT MAY
OPERATE."  SEC. 303(A)(B)(C).  ACCORDINGLY, THE COMMISSION HAS
ESTABLISHED A PLAN FOR ALLOCATING THE AVAILABLE RADIO FACILITIES AMONG
THE STATIONS OF THE COUNTRY.  UNDER ITS RULES THERE ARE THREE CLASSES
OF STANDARD BROADCAST CHANNELS:  "CLEAR CHANNELS," ON WHICH DOMINANT
STATIONS RENDER SERVICE OVER EXTENSIVE AREAS AND WHICH ARE CLEARED OF
OBJECTIONABLE INTERFERENCE WITHIN THEIR PRIMARY SERVICE AREAS AND OVER
ALL OR A SUBSTANTIAL PART OF THEIR SECONDARY SERVICE AREAS; "REGIONAL
CHANNELS," ON WHICH SEVERAL STATIONS SERVING SMALLER AREAS OPERATE
SIMULTANEOUSLY WITH POWERS NOT IN EXCESS OF 5 KILOWATTS; AND "LOCAL
CHANNELS," ON WHICH MANY STATIONS SERVING LOCAL AREAS OPERATE
SIMULTANEOUSLY WITH POWERS NOT IN EXCESS OF 250 WATTS.  SEC. 3.21. 
SIMILARLY, STANDARD BROADCAST STATIONS ARE CLASSIFIED INTO FOUR GROUPS:
"CLASS I STATIONS" - DOMINANT STATIONS OPERATING ON CLEAR CHANNELS AND
DESIGNED TO RENDER PRIMARY AND SECONDARY SERVICE OVER LARGE AREAS AND
AT RELATIVELY LONG DISTANCES; "CLASS II STATIONS" - OPERATING ON CLEAR
CHANNELS AND DESIGNED TO RENDER SERVICE OVER A PRIMARY SERVICE AREA
WHICH IS LIMITED BY AND SUBJECT TO SUCH INTERFERENCE AS MAY BE RECEIVED
FROM CLASS I STATIONS; "CLASS III STATIONS" - OPERATING ON REGIONAL
CHANNELS AND DESIGNED TO RENDER SERVICE PRIMARILY TO METROPOLITAN
DISTRICTS AND THE RURAL AREAS CONTIGUOUS THERETO; AND "CLASS IV
STATIONS" - OPERATING ON LOCAL CHANNELS AND DESIGNED TO RENDER SERVICE
PRIMARILY TO CITIES OR TOWNS AND THE SUBURBAN AND RURAL AREAS
CONTIGUOUS THERETO.  SEC. 3.22.  SECTION 3.25 DIVIDES CLEAR CHANNELS
INTO TWO FURTHER GROUPS:  I-A CHANNELS, TO WHICH ONLY ONE CLASS I
STATION IS ASSIGNED, WITH ONE OR MORE CLASS II STATIONS OPERATING
LIMITED TIME OR DAYTIME ONLY, AND I-B CHANNELS, TO WHICH BOTH CLASS I
AND CLASS II STATIONS MAY BE ASSIGNED, WITH MORE THAN ONE STATION
OPERATING AT NIGHT. 

ON OCTOBER 25, 1938, STATION WHDH IN BOSTON, MASSACHUSETTS, A CLASS II
STATION LICENSED TO OPERATE DURING THE DAYTIME ONLY ON THE FREQUENCY
830 KILOCYCLES (A CLASS I-A CHANNEL) WITH POWER OF 1 KILOWATT, APPLIED
TO THE COMMISSION FOR MODIFICATION OF ITS LICENSE SO THAT IT COULD
OPERATE BOTH NIGHT AND DAY ON THAT FREQUENCY WITH INCREASED POWER OF 5
KILOWATTS.  AT THAT TIME STATION KOA IN DENVER, COLORADO, WAS THE
DOMINANT CLASS I STATION ON THE FREQUENCY 830 KILOCYCLES, OPERATING
UNLIMITED TIME WITH POWER OF 50 KILOWATTS.  SINCE THE COMMISSION'S
RULES PROVIDED FOR THE ASSIGNMENT OF ONLY ONE STATION TO OPERATE AT
NIGHT ON THE FREQUENCY 830 KILOCYCLES, THE WHDH APPLICATION COULD NOT
BE GRANTED WITHOUT AMENDMENT OF SEC. 3.25. 

COMMISSION MUST FOLLOW IN PASSING UPON APPLICATIONS FOR MODIFICATION OF
LICENSES, SUCH AS THAT OF WHDH:  "IF UPON EXAMINATION OF ANY
APPLICATION FOR ...  MODIFICATION OF A STATION LICENSE THE COMMISSION
SHALL DETERMINE THAT PUBLIC INTEREST, CONVENIENCE, OR NECESSITY WOULD
BE SERVED BY THE GRANTING THEREOF, IT SHALL AUTHORIZE ...  MODIFICATION
THEREOF IN ACCORDANCE WITH SAID FINDING.  IN THE EVENT THE COMMISSION
UPON EXAMINATION OF ANY SUCH APPLICATION DOES NOT REACH SUCH DECISION
WITH RESPECT THERETO, IT SHALL NOTIFY THE APPLICANT THEREOF, SHALL FIX
AND GIVE NOTICE OF A TIME AND PLACE FOR HEARING THEREON, AND SHALL
AFFORD SUCH APPLICANT AN OPPORTUNITY TO BE HEARD UNDER SUCH RULES AND
REGULATIONS AS IT MAY PRESCRIBE."  THE COMMISSION, UPON ITS EXAMINATION
OF THE WHDH APPLICATION, WAS UNABLE TO FIND THAT A GRANT WOULD SERVE
THE PUBLIC INTEREST, CONVENIENCE, OR NECESSITY.  THE APPLICATION WAS
THEREFORE, ON SEPTEMBER 2, 1939, DESIGNATED FOR HEARING.  THREE WEEKS
LATER, ON SEPTEMBER 23, 1939, KOA FILED A PETITION TO INTERVENE.  ITS
PETITION, IN SUBSTANCE, ALLEGED ONLY THAT THE PROPOSED OPERATION OF
WHDH WOULD "CAUSE INTERFERENCE TO STATION KOA IN AREAS WHERE KOA'S
SIGNAL IS NOW INTERFERENCE FREE," THAT KOA "WOULD BE AGGRIEVED AND ITS
INTERESTS ADVERSELY AFFECTED" BY THE PROPOSED OPERATION, AND THAT A
GRANT OF THE WHDH APPLICATION WOULD NOT BE IN THE PUBLIC INTEREST,
CONVENIENCE, OR NECESSITY. 

THE COURT HOLDS THAT THE COMMISSION WAS REQUIRED AS A MATTER OF LAW
TO GRANT KOA'S PETITION TO INTERVENE IN THE HEARING UPON THE WHDH
APPLICATION.  IN MY JUDGMENT THE ACT PRECLUDES SUCH A CONSTRUCTION. 
IN SUCH MANNER AS WILL BEST CONDUCE TO THE PROPER DISPATCH OF BUSINESS
AND TO THE ENDS OF JUSTICE"; SEC. 303(R) AUTHORIZES IT TO MAKE "SUCH
RULES AND REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS AND CONDITIONS,
NOT INCONSISTENT WITH LAW, AS MAY BE NECESSARY TO CARRY OUT THE
PROVISIONS OF THIS ACT."  WE HAVE HELD THAT BY FORCE OF THESE
PROVISIONS "THE SUBORDINATE QUESTIONS OF PROCEDURE IN ASCERTAINING THE
PUBLIC INTEREST, WHEN THE COMMISSION'S LICENSING AUTHORITY IS INVOKED -
THE SCOPE OF THE INQUIRY, WHETHER APPLICATIONS SHOULD BE HEARD
CONTEMPORANEOUSLY OR SUCCESSIVELY, WHETHER PARTIES SHOULD BE ALLOWED TO
INTERVENE IN ONE ANOTHER'S PROCEEDINGS, AND SIMILAR QUESTIONS - WERE
EXPLICITLY AND BY IMPLICATION LEFT TO THE COMMISSION'S OWN DEVISING, SO
LONG, OF COURSE, AS IT OBSERVES THE BASIC REQUIREMENTS DESIGNED FOR THE
PROTECTION OF PRIVATE AS WELL AS PUBLIC INTEREST."  FEDERAL
COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S. 134,
138. 

THE BREADTH OF DISCRETION ENTRUSTED TO THE COMMISSION IS LIMITED,
HOWEVER, BY SECS. 303(F) AND 312(B).  THE FORMER PROVIDES THAT "CHANGES
IN THE FREQUENCIES, AUTHORIZED POWER, OR IN THE TIMES OF OPERATION OF
ANY STATION, SHALL NOT BE MADE WITHOUT THE CONSENT OF THE STATION
LICENSEE UNLESS, AFTER A PUBLIC HEARING, THE COMMISSION SHALL DETERMINE
THAT SUCH CHANGES WILL PROMOTE PUBLIC CONVENIENCE OR INTEREST OR WILL
SERVE PUBLIC NECESSITY, OR THE PROVISIONS OF THIS ACT WILL BE MORE
FULLY COMPLIED WITH."  SECTION 312(B) AUTHORIZES THE COMMISSION TO
MODIFY OUTSTANDING STATION LICENSES "IF IN THE JUDGMENT OF THE
COMMISSION SUCH ACTION WILL PROMOTE THE PUBLIC INTEREST, CONVENIENCE,
AND NECESSITY, OR THE PROVISIONS OF THIS ACT OR OF ANY TREATY RATIFIED
BY THE UNITED STATES WILL BE MORE FULLY COMPLIED WITH:  PROVIDED,
HOWEVER, THAT NO SUCH ORDER OF MODIFICATION SHALL BECOME FINAL UNTIL
THE HOLDER OF SUCH OUTSTANDING LICENSE OR PERMIT SHALL HAVE BEEN
NOTIFIED IN WRITING OF THE PROPOSED ACTION AND THE GROUNDS OR REASONS
THEREFOR AND SHALL HAVE BEEN GIVEN REASONABLE OPPORTUNITY TO SHOW CAUSE
WHY SUCH AN ORDER OF MODIFICATION SHOULD NOT ISSUE." 

THE PROCEDURAL SCHEME ESTABLISHED BY THE STATUTE IS THUS CLEAR:  IF
APPLICATION IS MADE FOR A STATION LICENSE, OR FOR MODIFICATION OR
RENEWAL OF A LICENSE, THE COMMISSION MAY GRANT SUCH APPLICATION WITHOUT
A HEARING IF IT FINDS, UPON EXAMINATION OF THE APPLICATION, THAT A
GRANT WOULD BE IN THE PUBLIC INTEREST.  IF IT IS UNABLE TO REACH SUCH A
DETERMINATION FROM ITS STUDY OF THE APPLICATION, IT MUST AFFORD THE
APPLICANT A "HEARING."  SEC. 309(A).  IF A COMMISSION ORDER INVOLVES A
CHANGE IN THE FREQUENCY, AUTHORIZED POWER, OR HOURS OF OPERATION OF AN
EXISTING STATION WITHOUT ITS CONSENT, SUCH LICENSEE IS ENTITLED TO A
"PUBLIC HEARING."  SEC. 303(F).  IF A COMMISSION ORDER INVOLVES
"MODIFICATION" OF AN OUTSTANDING LICENSE, PRESUMABLY SOMETHING OTHER
THAN A CHANGE IN FREQUENCY, POWER, OR HOURS OF OPERATION, THE
MODIFICATION ORDER CANNOT BECOME EFFECTIVE UNTIL THE LICENSEE IS GIVEN
NOTICE IN WRITING AND A "REASONABLE OPPORTUNITY TO SHOW CAUSE WHY SUCH
AN ORDER OF MODIFICATION SHOULD NOT ISSUE."  SEC. 312(B).  IT IS
RELEVANT HERE, ALSO, THAT UNDER SEC. 312(A) A COMMISSION ORDER REVOKING
A STATION LICENSE CANNOT TAKE EFFECT "UNTIL FIFTEEN DAYS' NOTICE IN
WRITING THEREOF, STATING THE CAUSE FOR THE PROPOSED REVOCATION, HAS
BEEN GIVEN TO THE LICENSEE.  SUCH LICENSEE MAY MAKE WRITTEN APPLICATION
TO THE COMMISSION AT ANY TIME WITHIN SAID FIFTEEN DAYS FOR A HEARING
UPON SUCH ORDER, AND UPON THE FILING OF SUCH WRITTEN APPLICATION SAID
ORDER OF REVOCATION SHALL STAND SUSPENDED UNTIL THE CONCLUSION OF THE
HEARING CONDUCTED UNDER SUCH RULES AS THE COMMISSION MAY PRESCRIBE. 
UPON THE CONCLUSION OF SAID HEARING THE COMMISSION MAY AFFIRM, MODIFY,
OR REVOKE SAID ORDER OF REVOCATION."  THE ACT EXPLICITLY PROVIDES FOR A
"HEARING," THEREFORE, WHEN THE COMMISSION PROPOSES TO DENY AN
APPLICATION FOR A LICENSE, OR TO REVOKE A LICENSE, OR TO CHANGE THE
FREQUENCY, POWER, OR HOURS OF OPERATION OF A STATION LICENSEE.  BUT
WHEN A COMMISSION ORDER MERELY INVOLVES "MODIFICATION" OF THE LICENSE
OF AN EXISTING STATION, THE LATTER IS ENTITLED ONLY TO NOTICE IN
WRITING AND A "REASONABLE OPPORTUNITY TO SHOW CAUSE" WHY THE ORDER
SHOULD NOT ISSUE. 

THE COMMISSION HAS EXERCISED THE AUTHORITY GIVEN IT BY CONGRESS TO
FORMULATE ITS ADMINISTRATIVE PROCEDURE.  SECTION 1.102 OF ITS RULES,
RELATING TO INTERVENTION IN COMMISSION PROCEEDINGS BY INTERESTED
PARTIES, PROVIDES AS FOLLOWS: 

"PETITIONS FOR INTERVENTION MUST SET FORTH THE GROUNDS OF THE
PROPOSED INTERVENTION, THE POSITION AND INTEREST OF THE PETITIONER IN
THE PROCEEDING, THE FACTS ON WHICH THE PETITIONER BASES HIS CLAIM THAT
HIS INTERVENTION WILL BE IN THE PUBLIC INTEREST, AND MUST BE SUBSCRIBED
OR VERIFIED IN ACCORDANCE WITH SECTION 1.122.  THE GRANTING OF A
PETITION TO INTERVENE SHALL HAVE THE EFFECT OF PERMITTING INTERVENTION
BEFORE THE COMMISSION BUT SHALL NOT BE CONSIDERED AS ANY RECOGNITION OF
ANY LEGAL OR EQUITABLE RIGHT OR INTEREST IN THE PROCEEDING.  THE
GRANTING OF SUCH PETITION SHALL NOT HAVE THE EFFECT OF CHANGING OR
ENLARGING THE ISSUES WHICH SHALL BE THOSE SPECIFIED IN THE COMMISSION'S
NOTICE OF HEARING UNLESS ON MOTION THE COMMISSION SHALL AMEND THE
SAME." 

UNDER AN EARLIER RULE ANY PERSON COULD INTERVENE IN A COMMISSION
PROCEEDING IF HIS PETITION DISCLOSED "A SUBSTANTIAL INTEREST IN THE
SUBJECT MATTER."  SEC. 105.19, COMMISSION'S RULES AND REGULATIONS
(1935).  THE REASONS FOR THE CHANGE IN THE COMMISSION'S INTERVENTION
RULE WERE THUS STATED BY THE ATTORNEY GENERAL'S COMMITTEE ON
ADMINISTRATIVE PROCEDURE, SEN. DOC. NO. 186, 76TH CONG., 3D SESS., PT.
3, PP. 16-17:  "THE EFFECTS OF THIS COMPLETE FREEDOM OF INTERVENTION
(AVAILABLE UNDER THE OLD RULE) UPON THE COMMISSION'S ACTIVITIES WERE
VERY MARKED.  NOT ONLY WAS THE RECORD UNNECESSARILY PROLONGED BY THE
DISCUSSION OF NONCONTROVERSIAL ISSUES, BUT THE EVIDENCE RELEVANT TO
EACH ISSUE WAS INCREASED MANYFOLD BY VIRTUE OF THE EXTENDED CROSS
EXAMINATION OF WITNESSES BY EACH INTERVENER.  MORE OFTEN THAN NOT THE
INTERVENERS PRESENTED NO AFFIRMATIVE EVIDENCE ON THE ISSUES AT HAND. 
THE MAJOR FUNCTIONS SERVED BY THEM WERE APPARENTLY TO IMPEDE THE
PROGRESS OF THE HEARING, TO INCREASE THE SIZE OF THE RECORD, AND TO
OBFUSCATE THE ISSUES BY PROLONGED AND CONFUSING CROSS-EXAMINATION.  NOR
WERE THESE DILATORY AND DESTRUCTIVE TACTICS RESTRICTED TO THE HEARING
ITSELF.  EACH INTERVENER WOULD CUSTOMARILY AVAIL HIMSELF OF HIS RIGHTS
TO TAKE EXCEPTIONS TO THE EXAMINER'S REPORT, TO ORAL ARGUMENT BEFORE
THE COMMISSION, AND, IN MANY CASES, TO APPEAL FROM THE COMMISSION'S
ORDER TO THE DISTRICT OF COLUMBIA COURT OF APPEALS.  ... IF THIS (NEW)
PROVISION IS ENFORCED INTELLIGENTLY AND FORCEFULLY, AN IMPORTANT STEP
WILL HAVE BEEN TAKEN BOTH TOWARD THE PROTECTION OF APPLICANTS AND THE
INCREASE OF THE COMMISSION'S PRESTIGE."  COMPARE IN RE HAZELWOOD, INC.,
7 F.C.C. 443. 

KOA'S PETITION FOR INTERVENTION WAS DENIED, PRESUMABLY BECAUSE THE
SHOWING REQUIRED BY SEC. 1.102 HAD NOT BEEN MADE.  AND ON JANUARY 29
AND 30, 1940, A HEARING UPON THE WHDH APPLICATION WAS HELD BEFORE AN
EXAMINER OF THE COMMISSION.  ALTHOUGH KOA WAS DENIED THE RIGHT TO
INTERVENE, IT COULD, UNDER SEC. 1.195 OF THE COMMISSION'S RULES, HAVE
APPEARED AND GIVEN EVIDENCE.  THAT RULE PROVIDES THAT THE SECRETARY OF
THE COMMISSION SHALL MAINTAIN "A RECORD OF ALL COMMUNICATIONS RECEIVED
BY THE COMMISSION RELATING TO THE MERITS OF ANY APPLICATION PENDING
BEFORE THE COMMISSION," AND IF THE APPLICATION IS DESIGNATED FOR
HEARING, THE SECRETARY MUST NOTIFY ALL PERSONS WHO HAVE COMMUNICATED
WITH THE COMMISSION REGARDING THE APPLICATION "IN ORDER THAT SUCH
PERSONS WILL HAVE AN OPPORTUNITY TO APPEAR AND GIVE EVIDENCE AT SUCH
HEARING."  UNDER THIS RULE IF KOA HAD APPEARED AT THE HEARING UPON THE
WHDH APPLICATION, IT WOULD HAVE BEEN ENTITLED TO PRESENT EVIDENCE
RELATING TO THE MATTERS RAISED IN ITS PETITION FOR INTERVENTION.  BUT,
SO FAR AS THE RECORD BEFORE US SHOWS, IT MADE NO EFFORT TO TAKE
ADVANTAGE OF THE RIGHT OF PARTICIPATION AFFORDED IT BY SEC. 1.195. 

ON DECEMBER 9, 1940, THE COMMISSION ISSUED PROPOSED FINDINGS AND
CONCLUSIONS.  UNDER THESE THE COMMISSION FOUND THAT THE PROPOSED
OPERATION OF WHDH, WITH USE OF A DIRECTIONAL ANTENNA, "WOULD NOT CAUSE
ANY INTERFERENCE TO THE PRIMARY SERVICE OF STATION KOA, DENVER,
COLORADO, AND THAT SUCH INTERFERENCE AS THE PROPOSED OPERATION OF WHDH
MIGHT REASONABLY BE EXPECTED TO CAUSE TO RECEPTION OF KOA WOULD BE
LIMITED TO RECEIVERS IN THE EASTERN HALF OF THE UNITED STATES"; THAT
THE OPERATION OF WHDH AS PROPOSED IN ITS APPLICATION WOULD "ENABLE IT
TO DELIVER SERVICE OF PRIMARY SIGNAL QUALITY TO AN AREA HAVING A
POPULATION OF 3,093,000 OR TO 621,000 MORE PEOPLE THAN ARE NOW INCLUDED
WITHIN THE PRIMARY SERVICE AREA OF THE STATION"; THAT BY EXTENDING
WHDH'S HOURS OF OPERATION "A NEW PRIMARY SERVICE TO 94.9% OF THE BOSTON
METROPOLITAN AREA, INCLUDING A POPULATION OF 2,185,000," WOULD BE
PROVIDED; THAT, IN ADDITION TO THE IMPROVED SERVICE TO LISTENERS IN THE
BOSTON AREA, THERE WOULD BE "AN IMPROVEMENT AND EXTENSION OF SERVICE
WHICH APPLICANT STATION (WHDH) NOW ENDEAVORS TO RENDER OVER THE FISHING
BANKS SITUATED OFF THE NEW ENGLAND COAST"; AND THAT THE PUBLIC INTEREST
WOULD BE SERVED BY AMENDING SEC. 3.25 OF THE RULES SO AS TO MAKE THE
FREQUENCY 830 KILOCYCLES A I-B CHANNEL, UPON WHICH MORE THAN ONE
STATION COULD OPERATE AT NIGHT, THEREBY PERMITTING "MORE EFFICIENT USE
OF THE FREQUENCY." 

ON DECEMBER 16, 1940, KOA AGAIN PETITIONED TO INTERVENE.  ITS
PETITION ALLEGED ONLY THAT THE PROPOSED ACTION, IF ADOPTED, WOULD
RESULT IN "INTERFERENCE TO STATION KOA IN AREAS WHERE KOA'S SIGNALS ARE
NOW INTERFERENCE FREE," WOULD CONSTITUTE A MODIFICATION OF KOA'S
LICENSE WITHOUT AFFORDING IT AN OPPORTUNITY TO BE HEARD, AND WOULD
RESULT IN "A DEGRADATION OF SERVICE ON 830 KC WHICH WILL BE PREJUDICIAL
TO THE PRIORITY RIGHTS IN THE UNITED STATES ON THIS CHANNEL, WILL
DISCRIMINATE AGAINST SERVICE TO RURAL LISTENERS IN ORDER TO FURNISH
ADDITIONAL SERVICE TO THE CITY OF BOSTON WHICH IS ALREADY WELL
SERVED."  KOA MADE NO OFFER TO CONTRADICT OR ADD TO THE EVIDENCE
ADDUCED AT THE HEARING, NOR DID IT DISPUTE THE COMMISSION'S CONCLUSIONS
AS TO THE EXTENT OF THE INTERFERENCE WHICH KOA WOULD SUFFER FROM THE
PROPOSED OPERATION OF WHDH.  ACCORDINGLY, ON JANUARY 7, 1941, THE
COMMISSION DENIED KOA'S SECOND PETITION TO INTERVENE, BUT IT PERMITTED
KOA, AS WELL AS OTHER "CLEAR CHANNEL" STATIONS INTERESTED IN THE
PROCEEDING, TO PARTICIPATE IN THE ORAL ARGUMENT BEFORE THE COMMISSION,
AND TO FILE BRIEFS AMICUS, IN ORDER TO DETERMINE WHETHER THE PROPOSED
FINDINGS SHOULD BE MADE FINAL. 

MEANWHILE, ON JANUARY 23, 1941, THE PRESIDENT PROCLAIMED THE NORTH
AMERICAN REGIONAL BROADCASTING AGREEMENT, 55 STAT. 1005.  THE PURPOSE
OF THIS AGREEMENT, WHICH WAS CONCLUDED AT HAVANA ON DECEMBER 13, 1937,
AMONG CANADA, CUBA, DOMINICAN REPUBLIC, HAITI, MEXICO, AND THE UNITED
STATES, WAS TO "REGULATE AND ESTABLISH PRINCIPLES COVERING THE USE OF
THE STANDARD BROADCAST BAND IN THE NORTH AMERICAN REGION SO THAT EACH
COUNTRY MAY MAKE THE MOST EFFECTIVE USE THEREOF WITH THE MINIMUM
TECHNICAL INTERFERENCE BETWEEN BROADCAST STATIONS."  THE SIGNATORY
GOVERNMENTS RECOGNIZED THAT "UNTIL TECHNICAL DEVELOPMENTS REACH A STATE
PERMITTING THE ELIMINATION OF RADIO INTERFERENCE OF INTERNATIONAL
CHARACTER, A REGIONAL ARRANGEMENT BETWEEN THEM IS NECESSARY IN ORDER TO
PROMOTE STANDARDIZATION AND TO MINIMIZE INTERFERENCE."  THE AGREEMENT
ESTABLISHED PRIORITIES IN THE USE OF SPECIFIED CLEAR CHANNELS, SIXTY
THREE OF WHICH WERE ASSIGNED TO THE UNITED STATES, AND PROVIDED THAT
EACH SUCH CHANNEL "SHALL BE USED IN A MANNER CONFORMING TO THE BEST
ENGINEERING PRACTICE WITH DUE REGARD TO THE SERVICE TO BE RENDERED BY
THE DOMINANT STATIONS OPERATING THEREON." 

IN ORDER TO CARRY OUT THE PROVISIONS OF THE AGREEMENT, THE UNITED
STATES WAS OBLIGED TO MAKE EXTENSIVE ADJUSTMENTS IN THE ASSIGNMENTS OF
ITS EXISTING STATIONS.  AS PART OF THE ACCOMMODATIONS REQUIRED,
STATIONS ASSIGNED TO THE FREQUENCY 830 KILOCYCLES WERE TO BE MOVED TO
850 KILOCYCLES.  THIS CHANGE AFFECTED BOTH WHDH AND KOA.  THE LICENSE
OF KOA, LIKE THAT OF ALL OTHER STANDARD BROADCAST STATIONS, WOULD HAVE
EXPIRED ON AUGUST 1, 1940, WHILE THE WHDH APPLICATION WAS PENDING.  THE
LICENSES OF ALL STATIONS, INCLUDING KOA AND WHDH, WERE SUCCESSIVELY
EXTENDED BY THE COMMISSION, FIRST TO OCTOBER 1, 1940, AND THEN TO MARCH
29, 1941, THE EFFECTIVE DATE OF THE AGREEMENT.  KOA HAD FILED AN
APPLICATION FOR RENEWAL OF ITS LICENSE TO OPERATE ON 830 KILOCYCLES, 50
KILOWATTS, UNLIMITED TIME.  ON FEBRUARY 4, 1941, THE COMMISSION ADVISED
ALL APPLICANTS FOR RENEWALS, INCLUDING KOA, THAT UNDER THE AGREEMENT,
THEIR OPERATING ASSIGNMENTS WERE TO BE CHANGED AND THAT THEIR
APPLICATIONS FOR RENEWALS WOULD BE REGARDED AS APPLICATIONS TO OPERATE
UPON THE NEW FREQUENCIES, UNLESS THE APPLICANT WISHED TO OPERATE UPON
SOME OTHER FREQUENCY, IN WHICH EVENT ITS APPLICATION WOULD BE
DESIGNATED FOR HEARING.  SO FAR AS APPEARS, KOA DID NOT NOTIFY THE
COMMISSION THAT IT HAD ANY OBJECTION TO ITS RENEWAL APPLICATION BEING
REGARDED AS AN APPLICATION TO OPERATE ON THE FREQUENCY 850 KILOCYCLES. 
ACCORDINGLY, WHEN ITS LICENSE TO OPERATE ON 830 KILOCYCLES EXPIRED ON
MARCH 29, 1941, ITS LICENSE WAS RENEWED ON THE FREQUENCY 850
KILOCYCLES.  IN NO SENSE, THEREFORE, DID THE ACTION OF THE COMMISSION
CHANGING KOA'S FREQUENCY ASSIGNMENT PURSUANT TO THE NORTH AMERICAN
REGIONAL BROADCASTING AGREEMENT CONSTITUTE A MODIFICATION OF KOA'S
LICENSE.  AND, INDEED, KOA MAKES NO SUCH CONTENTION HERE, FOR REVIEW OF
COMMISSION ORDERS MODIFYING STATION LICENSES, UPON THE COMMISSION'S OWN
MOTION, CAN BE REVIEWED ONLY IN A SUIT BROUGHT IN A DISTRICT COURT
UNDER SEC. 402(A).  SEE SCRIPPS-HOWARD RADIO V. FEDERAL COMMUNICATIONS
COMM'N, 316 U.S. 4, 8-9, NOTE 3. 

ON MARCH 26, 1941, THREE DAYS BEFORE THE AGREEMENT WAS TO BECOME
EFFECTIVE, THE COMMISSION ISSUED AN ORDER ADOPTING THE PROPOSED
FINDINGS AND CONCLUSIONS UPON THE WHDH APPLICATION, GRANTING WHDH
AUTHORITY TO OPERATE ON 850 KILOCYCLES, WITH POWER OF 5 KILOWATTS, DAY
AND NIGHT, AND AMENDING SEC. 3.25 OF ITS RULES SO AS TO MAKE THE
FREQUENCY 850 KILOCYCLES A I-B CHANNEL UPON WHICH MORE THAN ONE STATION
COULD OPERATE AT NIGHT.  THIS ORDER WAS MADE EFFECTIVE APRIL 7, 1941. 

ON APRIL 25, 1941, KOA FILED A PETITION FOR REHEARING BEFORE THE
COMMISSION, REPEATING IN SUBSTANCE THE ALLEGATIONS CONTAINED IN ITS
EARLIER PETITIONS TO INTERVENE.  AND ON MAY 20, 1941, THE COMMISSION,
IN AN OPINION THAT CONSIDERED IN DETAIL EACH OF THE ALLEGATIONS IN THE
PETITION FOR REHEARING, DENIED THE PETITION.  THE COMMISSION STATED
THAT "IN VIEW OF THE IMPORTANCE OF THE MATTERS INVOLVED IN THIS
PROCEEDING, WE SHALL RE-EXAMINE OUR FINDINGS AND CONCLUSIONS AND THE
RECORD UPON WHICH THEY ARE BASED."  IN SUMMARY, IT FOUND THAT A GRANT
OF THE WHDH APPLICATION "WOULD NOT RESULT IN INTERFERENCE TO THE
PRIMARY SERVICE OF STATION KOA, DENVER, COLORADO, AND THAT SUCH
INTERFERENCE TO THE RECEPTION OF STATION KOA AS MIGHT REASONABLY BE
EXPECTED TO RESULT FROM A GRANT OF THE MATHESON (WHDH) APPLICATION
WOULD OCCUR IN ITS SECONDARY SERVICE AREA AND WOULD BE LIMITED TO
RECEIVERS IN THE EASTERN HALF OF THE UNITED STATES, REMOTE FROM THE KOA
TRANSMITTER; THAT SUCH SECONDARY SERVICE AS KOA COULD RENDER IN THIS
AREA WOULD BE OF UNCERTAIN CHARACTER BECAUSE OF ITS DEPENDENCE UPON THE
CHARACTERISTICS OF THE INDIVIDUAL RECEIVER, THE SIGNAL INTENSITY AND
THE SIGNAL TO INTERFERENCE RATIO INVOLVED IN EACH INDIVIDUAL CASE"; AND
"THAT ALTHOUGH PETITIONER (KOA) CONTENDS IT IS ENTITLED TO SERVE THE
RURAL AREAS IN WHICH IT IS CLAIMED INTERFERENCE WILL OCCUR, IT FAILS TO
ALLEGE EITHER THAT IT HAS BEEN PROVIDING A USEFUL SERVICE IN SUCH AREAS
OR POINT OUT, IN TERMS OF POPULATION, THE NATURE AND EXTENT OF THE
CLAIMED INTERFERENCE." 

ON JUNE 7, 1941, KOA FILED AN APPEAL FROM THE COMMISSION'S ORDER IN
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA UNDER SEC. 402(B)(2)
OF THE COMMUNICATIONS ACT OF 1934.  SECTION 402(B) PROVIDES FOR APPEALS
TO THE COURT FROM DECISIONS OF THE COMMISSION "IN ANY OF THE FOLLOWING
CASES: (1) BY ANY APPLICANT FOR A CONSTRUCTION PERMIT FOR A RADIO
STATION, OR FOR A RADIO STATION LICENSE, OR FOR RENEWAL OF AN EXISTING
RADIO STATION LICENSE, OR FOR MODIFICATION OF AN EXISTING RADIO STATION
LICENSE, WHOSE APPLICATION IS REFUSED BY THE COMMISSION.  (2) BY ANY
OTHER PERSON AGGRIEVED OR WHOSE INTERESTS ARE ADVERSELY AFFECTED BY ANY
DECISION OF THE COMMISSION GRANTING OR REFUSING ANY SUCH APPLICATION." 

THE COURT BELOW COULD NOT TAKE JURISDICTION OF THE SUIT UNLESS KOA
HAD A RIGHT TO APPEAL UNDER SEC. 402(B)(2); IN OTHER WORDS, UNLESS IT
WAS "AGGRIEVED" OR ITS "INTERESTS WERE ADVERSELY AFFECTED" BY THE
GRANTING OF THE WHDH APPLICATION.  SINCE THE COMMISSION IN EXERCISING
ITS LICENSING FUNCTION MUST BE GOVERNED BY THE PUBLIC INTEREST AND NOT
THE PRIVATE INTEREST OF EXISTING LICENSEES, AN APPELLANT UNDER SEC.
402(B)(2) APPEARS ONLY TO VINDICATE THE PUBLIC INTEREST AND NOT HIS
OWN.  FEDERAL COMMUNICATIONS COMM'N V. SANDERS RADIO STATION, 309 U.S.
470; SCRIPPS-HOWARD RADIO V. FEDERAL COMMUNICATIONS COMM'N, 316 U.S.
4.  THAT THE COMMISSION'S ORDER MAY IMPAIR THE VALUE OF AN EXISTING
STATION'S LICENSE IS IN ITSELF NO GROUND FOR INVALIDATING THE ORDER; IT
MERELY MAY CREATE STANDING TO ATTACK THE VALIDITY OF THE ORDER ON OTHER
GROUNDS.  WHATEVER DOUBTS MAY HAVE EXISTED AS TO WHETHER THE
INGREDIENTS OF "CASE" OR "CONTROVERSY," AS DEFINED, FOR EXAMPLE, IN
MUSKRAT V. UNITED STATES, 219 U.S. 346, ARE PRESENT IN THIS SITUATION
WERE DISPELLED BY OUR RULING IN THE SANDERS CASE THAT THE LEGALITY OF A
COMMISSION ORDER CAN BE CHALLENGED BY ONE "AGGRIEVED" OR "WHOSE
INTERESTS ARE ADVERSELY AFFECTED" THEREBY, EVEN THOUGH THE SOURCE OF
HIS GRIEVANCE IS NOT WHAT IS CLAIMED TO MAKE THE ORDER UNLAWFUL.  BUT
FROM THIS IT MUST NOT BE CONCLUDED THAT ANYONE WHO CLAIMS TO BE
"AGGRIEVED" OR WHO IS IN ANY WAY ADVERSELY AFFECTED BY COMMISSION
ACTION HAS A RIGHT TO APPEAL.  AS THE PREVAILING OPINION IN THE COURT
OF APPEALS POINTED OUT:  "IN THE PRESENT STAGE OF RADIO, VERY FEW
CHANGES, EITHER IN FREQUENCY OR IN POWER, CAN BE MADE WITHOUT CREATING
SOME DEGREE OF ELECTRICAL INTERFERENCE.  THIS MAY RANGE FROM MINUTE AND
PRACTICALLY HARMLESS INTERRUPTION WITH REMOTE AND VERY OCCASIONAL
LISTENERS IN SECONDARY SERVICE AREAS TO TOTAL OBLITERATION IN THE
PRIMARY FIELD.  ...  IT SEEMS NOT UNREASONABLE TO READ THE (SANDERS)
OPINION AS REQUIRING BY IMPLICATION THAT THERE BE PROBABLE INJURY OF A
SUBSTANTIAL CHARACTER.  SO MUCH BY WAY OF LIMITATION SEEMS NECESSARY TO
PREVENT VINDICATION OF THE PUBLIC INTEREST FROM TURNING INTO MASS
APPEALS BY THE INDUSTRY AT LARGE, WITH RESULTING HOPELESS CLOGGING OF
THE ADMINISTRATIVE PROCESS BY JUDICIAL REVIEW.  LIKEWISE, WITH
ELECTRICAL INTERFERENCE, IT IS HARDLY NECESSARY TO SECURE APPELLATE
CHAMPIONSHIP BY EVERY BROADCASTER WHO MAY BE AFFECTED IN ONLY A REMOTE
AND INSUBSTANTIAL MANNER."  132 F.2D 545, 548. 

IN ORDER TO ESTABLISH ITS RIGHT TO APPEAL, THEREFORE, KOA HAD TO MAKE
A SHOWING THAT ITS INTERESTS WERE SUBSTANTIALLY IMPAIRED BY A GRANT OF
THE WHDH APPLICATION.  THIS, THE RECORD MAKES CLEAR, IT FAILED TO DO.
IN ITS NOTICE OF APPEAL TO THE COURT BELOW, KOA MADE ONLY A GENERAL
ALLEGATION, WHAT COURTS NORMALLY REGARD AS A CONCLUSION OF LAW, THAT
THE COMMISSION'S ACTION RESULTED IN A "SUBSTANTIAL MODIFICATION" OF ITS
LICENSE.  NO SUPPORTING ALLEGATIONS OF FACT WERE TENDERED.  THERE WAS
NO CLAIM THAT KOA'S ECONOMIC POSITION WAS IN ANY WAY IMPAIRED, OR THAT
THE PROPOSED OPERATION OF WHDH WOULD CAUSE SUBSTANTIAL INTERFERENCE
WITH KOA, OR THAT SUCH OPERATION WOULD RESULT IN A SUBSTANTIAL LOSS OF
LISTENERS TO KOA, OR THAT ANY AREAS OF SUBSTANTIAL SIZE WOULD NO LONGER
BE ABLE TO RECEIVE SATISFACTORY SERVICE FROM KOA.  NEITHER IN ITS
PETITIONS FOR INTERVENTION, NOR IN ITS PETITION FOR REHEARING BEFORE
THE COMMISSION, NOR IN ITS NOTICE OF APPEAL TO THE COURT BELOW, DID KOA
SPECIFICALLY CHALLENGE THE CORRECTNESS OF THE COMMISSION'S FINDINGS. 
THE RECORD AFFORDS NO BASIS, THEREFORE, FOR FINDING THAT KOA HAD
STANDING TO APPEAL FROM THE GRANT OF THE WHDH APPLICATION.  BUT EVEN IF
IT HAD, I DO NOT BELIEVE THAT KOA WAS AFFORDED LESS OPPORTUNITY TO
PARTICIPATE IN THE PROCEEDINGS BEFORE THE COMMISSION THAN THE STATUTE
REQUIRES.  ASSUMING THAT THE GRANT OF THE WHDH APPLICATION CONSTITUTED
A "MODIFICATION" OF KOA'S LICENSE IN THE SENSE THAT THE SCOPE OF THE
OPERATIONS AUTHORIZED BY KOA'S LICENSE WAS THEREBY LIMITED, ONLY SEC.
312(B) WOULD COME INTO OPERATION.  SECTION 303(F) IS INAPPLICABLE
BECAUSE THE GRANT OF THE WHDH APPLICATION UNQUESTIONABLY DID NOT CHANGE
KOA'S FREQUENCY, POWER, OR HOURS OF OPERATION.  BOTH BEFORE AND AFTER
THE COMMISSION'S ACTION, KOA'S OPERATING ASSIGNMENT WAS PRECISELY THE
SAME: 850 KILOCYCLES, 50 KILOWATTS, UNLIMITED TIME.  AND SO THE ONLY
QUESTION ON THIS PHASE OF THE CASE IS - WAS KOA AFFORDED SUCH
OPPORTUNITY OF PARTICIPATION IN THE WHDH PROCEEDING AS SEC. 312(B)
REQUIRES?  THAT SECTION PROVIDES THAT NO ORDER MODIFYING THE LICENSE OF
ANY EXISTING STATION "SHALL BECOME FINAL UNTIL THE HOLDER OF SUCH
OUTSTANDING LICENSE OR PERMIT SHALL HAVE BEEN NOTIFIED IN WRITING OF
THE PROPOSED ACTION AND THE GROUNDS OR REASONS THEREFOR AND SHALL HAVE
BEEN GIVEN REASONABLE OPPORTUNITY TO SHOW CAUSE WHY SUCH AN ORDER OF
MODIFICATION SHOULD NOT ISSUE." 

KOA DOES NOT CLAIM THAT IT DID NOT HAVE SUFFICIENT NOTICE, FORMAL AND
OTHERWISE, OF THE PROCEEDINGS UPON THE WHDH APPLICATION.  NOR CAN THERE
BE ANY DOUBT THAT IT HAD AMPLE AND "REASONABLE OPPORTUNITY TO SHOW
CAUSE" WHY WHDH'S APPLICATION SHOULD NOT BE GRANTED.  UNDER SEC. 1.195
OF THE COMMISSION'S RULES IT COULD HAVE APPEARED AND GIVEN EVIDENCE AT
THE HEARING UPON THE WHDH APPLICATION.  THAT IT DID NOT TAKE ADVANTAGE
OF SUCH AN OPPORTUNITY IS CERTAINLY NO REASON FOR SAYING THAT IT HAD
NONE.  KOA WAS PERMITTED TO ARGUE BEFORE THE COMMISSION THAT THE
PROPOSED GRANT OF THE WHDH APPLICATION SHOULD NOT BE MADE FINAL.  IT
SUBMITTED A PETITION FOR REHEARING WHICH THE COMMISSION CONSIDERED ON
ITS MERITS AND WHICH THE COMMISSION DENIED ONLY AFTER A DETAILED REVIEW
OF ALL THE CONTENTIONS MADE BY KOA. 

THE COURT HOLDS, NEVERTHELESS, THAT THE COMMISSION WAS REQUIRED TO
AFFORD KOA MORE THAN ALL THESE OPPORTUNITIES TO SHOW CAUSE.  SECTION
312(B) IS CONSTRUED TO REQUIRE A HEARING IN WHICH THE LICENSEE WHOSE
INTERESTS MAY BE AFFECTED IS ENTITLED TO INTERVENE AS A FORMAL PARTY. 
SUCH A CONSTRUCTION APPEARS TO ME TO DISREGARD THE STRUCTURE AND
LANGUAGE OF THE LEGISLATIVE SCHEME.  CONGRESS MIGHT HAVE BEEN EXPLICIT
AND PROVIDED IN SEC. 312(B) THAT EVERY LICENSEE WHOSE INTERESTS MAY BE
AFFECTED BY COMMISSION ACTION SHALL BE ENTITLED TO A HEARING AS AN
INTERVENOR IN THE PROCEEDING.  AS HAS BEEN NOTED, THE DRAFTSMEN OF THE
COMMUNICATIONS ACT OF 1934 KNEW HOW TO USE APT WORDS WHEN THEY WISHED
TO AFFORD PARTIES BEFORE THE COMMISSION THE RIGHT OF "HEARING." 
LICENSE A "HEARING," NOT NOTICE AND AN OPPORTUNITY TO SHOW CAUSE,
BEFORE THE APPLICATION CAN BE DENIED.  SECTION 312(A) GIVES A LICENSEE
A "HEARING," NOT NOTICE AND AN OPPORTUNITY TO SHOW CAUSE, BEFORE ITS
LICENSE CAN BE REVOKED.  SECTION 303(F) PROVIDES THAT THE COMMISSION
CANNOT CHANGE THE FREQUENCY, AUTHORIZED POWER, OR TIMES OF OPERATION OF
A LICENSEE UNLESS IT AFFORDS SUCH LICENSEE A "PUBLIC HEARING," NOT
MERELY NOTICE AND AN OPPORTUNITY TO SHOW CAUSE.  BUT, FOR REASONS WHICH
IT DEEMED SUFFICIENT, CONGRESS DID NOT CHOOSE TO MAKE THIS TECHNICAL
REQUIREMENT OF A "HEARING" IN SPECIFYING THE PROCEDURE FOR THE
PROTECTION OF LICENSEES WHO MIGHT BE AFFECTED BY COMMISSION ACTION. 
CONGRESS MAY WELL HAVE DESIRED TO AVOID THE LITIGIOUS WASTE SO
ABUNDANTLY ESTABLISHED BY THE VOLUMINOUS CASES TO WHICH THE CLAIM OF
INTERVENTION IN COURTS HAS GIVEN RISE.  THE REQUIREMENT OF NOTICE AND
AN OPPORTUNITY TO SHOW CAUSE IS NOT THE EQUIVALENT OF THE REQUIREMENT
OF A "HEARING."  BY IMPOSING THIS REQUIREMENT FOR THE ADEQUATE
PROTECTION OF SUBSTANTIAL INTERESTS, CONGRESS CHARGED THE COMMISSION
WITH THE DUTY OF DEVISING APPROPRIATE PROCEDURE WHICH WOULD "BEST
CONDUCE TO THE PROPER DISPATCH OF BUSINESS AND TO THE ENDS OF
JUSTICE."  SEC. 4(J).  THE COMMISSION'S RESPONSE WAS SECS. 1.102 AND
1.195 OF ITS RULES. 

CAN IT SERIOUSLY BE CLAIMED THAT THE COMMISSION ACTED BEYOND ITS
AUTHORITY IN PROVIDING THAT BEFORE A LICENSEE CAN INTERVENE IN ANOTHER
PROCEEDING HE MUST INDICATE SOME SOLID GROUND BY SETTING FORTH "THE
FACTS ON WHICH THE PETITIONER BASES HIS CLAIM THAT HIS INTERVENTION
WILL BE IN THE PUBLIC INTEREST"?  OTHERWISE ANYONE WHO ASSERTS
GENERALLY THAT THE GRANT OF ANOTHER'S APPLICATION WILL AFFECT HIS
LICENSE MAY BECOME A PARTY TO A PROCEEDING BEFORE THE COMMISSION AND
MAY, TO THE EXTENT TO WHICH A PARTY CAN SHAPE AND DISTORT THE DIRECTION
OF A PROCEEDING, GAIN ALL THE OPPORTUNITIES THAT A PARTY HAS TO AFFECT
A LITIGATION ALTHOUGH HE HAS NOT MADE EVEN A PRELIMINARY SHOWING THAT
HIS INTERVENTION WILL BE IN THE PUBLIC INTEREST.  I CANNOT READ THE
REQUIREMENT FOR "REASONABLE OPPORTUNITY TO SHOW CAUSE WHY SUCH AN ORDER
OF MODIFICATION SHOULD NOT ISSUE" AS A DENIAL TO THE COMMISSION OF
POWER TO MAKE SUCH A REASONABLE RULE FOR SIFTING THE RESPONSIBILITY OF
POTENTIAL INTERVENORS.  AND IF THE COMMISSION'S RULE FOR INTERVENTION
WAS WITHIN ITS DISCRETIONARY AUTHORITY IN FORMULATING APPROPRIATE RULES
OF PROCEDURE FOR THE CONDUCT OF ITS PROCEEDINGS, IT IS EQUALLY CLEAR
THAT THE COMMISSION, IN THE CIRCUMSTANCES OF THIS PARTICULAR CASE, WAS
JUSTIFIED IN FINDING THAT KOA MADE NO SUBSTANTIAL CLAIM THAT THE GRANT
OF THE WHDH APPLICATION WOULD IMPAIR KOA'S ECONOMIC INTERESTS OR ENTAIL
A SUBSTANTIAL LOSS OF LISTENERS OR MAKE ANY APPRECIABLE INROADS UPON
ANY AREAS SERVED BY KOA OR OTHERWISE SUBSTANTIALLY AFFECT ITS INTEREST
OR THAT OF THE PUBLIC. 

TO DENY TO THE COMMISSION THE RIGHT TO REQUIRE A PRELIMINARY SHOWING,
SUCH AS WAS FOUND WANTING HERE, BEFORE ADMITTING A PETITIONER TO THE
FULL RIGHTS OF A PARTY LITIGANT IS TO FASTEN UPON THE COMMISSION'S
ADMINISTRATIVE PROCESS THE TECHNICAL REQUIREMENTS EVOLVED BY COURTS FOR
THE ADJUDICATION OF CONTROVERSIES OVER PRIVATE INTERESTS.  SEE FEDERAL
COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 142
44.  IT IS TO ASSUME THAT THE MODES FAMILIAR TO COURTS FOR THE
PROTECTION OF SUBSTANTIAL INTERESTS ARE THE ONLY PERMISSIBLE MODES,
REGARDLESS OF THE NATURE OF THE SUBJECT MATTER AND THE TRIBUNALS
CHARGED WITH ADMINISTRATION OF THE LAW.  THIS IS TO READ THE DISCRETION
GIVEN TO THE FEDERAL COMMUNICATIONS COMMISSION TO FASHION A PROCEDURE
RELEVANT TO THE INTERESTS FOR THE ADJUSTMENT OF WHICH THE COMMISSION
WAS ESTABLISHED THROUGH THE DISTORTING SPECTACLES OF WHAT HAS BEEN
FOUND APPROPRIATE FOR COURTS.  WE MUST ASSUME THAT AN AGENCY WHICH
CONGRESS HAS TRUSTED IS WORTHY OF THE TRUST.  AND ESPECIALLY WHEN
SITTING IN JUDGMENT UPON PROCEDURE DEVISED BY THE COMMISSION FOR THE
FAIR PROTECTION OF BOTH PUBLIC AND PRIVATE INTERESTS, WE MUST VIEW WHAT
THE COMMISSION HAS DONE WITH A GENEROUS AND NOT A JEALOUS EYE. 

MR. JUSTICE DOUGLAS, DISSENTING: 

WHILE I AM IN SUBSTANTIAL AGREEMENT WITH THE VIEWS EXPRESSED BY MR.
JUSTICE FRANKFURTER, THERE ARE A FEW WORDS I DESIRE TO ADD ON ONE PHASE
OF THE CASE. 

I AGREE WITH THE COURT THAT IF, AS WE HELD IN THE SANDERS CASE (309
U.S. 470), A PERSON FINANCIALLY INJURED BY THE GRANT OF A LICENSE HAS A
STANDING TO APPEAL, SO DOES ONE WHOSE STATION WILL SUFFER FROM
ELECTRICAL INTERFERENCE IF THE LICENSE IS ISSUED.  I EXPRESSED MY
DOUBTS, HOWEVER, IN SCRIPPS-HOWARD RADIO V. FEDERAL COMMUNICATIONS
COMMISSION$, 316 U.S. 4, 20-21, WHETHER CONGRESS ENDOWED PRIVATE
LITIGANTS WITH THE POWER TO VINDICATE THE PUBLIC INTEREST WHEN IT GAVE
THE RIGHT TO APPEAL UNDER SEC. 402(B) TO A PERSON "AGGRIEVED OR WHOSE
INTERESTS ARE ADVERSELY AFFECTED" BY A DECISION OF THE COMMISSION.  I
ALSO EXPRESSED MY CONCERN IN THAT CASE WITH THE CONSTITUTIONALITY OF A
STATUTORY SCHEME WHICH ALLOWED ONE WHO SHOWED NO INVASION OF A PRIVATE
RIGHT TO CALL ON THE COURTS TO REVIEW AN ORDER OF THE COMMISSION.  SEE
MUSKRAT V. UNITED STATES, 219 U.S. 346.  BUT IF WE ACCEPT AS
CONSTITUTIONALLY VALID A SYSTEM OF JUDICIAL REVIEW INVOKED BY A PRIVATE
PERSON WHO HAS NO INDIVIDUAL SUBSTANTIVE RIGHT TO PROTECT BUT WHO HAS
STANDING ONLY AS A REPRESENTATIVE OF THE PUBLIC INTEREST,  FN1  THEN I
THINK WE MUST BE EXCEEDINGLY SCRUPULOUS TO SEE TO IT THAT HIS INTEREST
IN THE MATTER IS SUBSTANTIAL AND IMMEDIATE.  OTHERWISE WE WILL NOT ONLY
PERMIT THE ADMINISTRATIVE PROCESS TO BE CLOGGED BY JUDICIAL REVIEW; WE
WILL MOST ASSUREDLY RUN AFOUL OF THE CONSTITUTIONAL REQUIREMENT OF CASE
OR CONTROVERSY.  FEDERAL RADIO COMMISSION V. GENERAL ELECTRIC CO., 281
U.S. 464. 

ANY ACTUAL CONTROVERSY WHICH MAY NOW BE PRESENT IN THIS CASE IS
BETWEEN KOA AND THE COMMISSION.  ANY CONTROVERSY WHICH EXISTED BETWEEN
WHDH AND THE COMMISSION HAS COME TO AN END.  UNITED STATES V. ALASKA
S.S. CO., 253 U.S. 113, 116.  THE INTEREST, IF ANY, OF THE APPELLANT
KOA IS THE INTEREST OF A PRIVATE PERSON AND ACCORDINGLY MUST BE
MEASURED IN TERMS OF PRIVATE INJURY.  THAT INTEREST MUST BE SUBSTANTIAL
AND IMMEDIATE IF THE STANDARD OF THE STATUTE AND IF THE CONSTITUTIONAL
REQUIREMENTS OF CASE OR CONTROVERSY, AS INTERPRETED BY THE SANDERS AND
THE SCRIPPS-HOWARD CASES, ARE TO BE SATISFIED.  IT IS NECESSARY TO SHOW
IN EFFECT THAT KOA HAS SUSTAINED OR IS ABOUT TO SUSTAIN SOME DIRECT AND
SUBSTANTIAL INJURY (SEE MASSACHUSETTS V. MELLON, 262 U.S. 447, 488) -
AN INJURY WHICH FOR THE PURPOSE OF THIS CASE MUST RESULT FROM
ELECTRICAL INTERFERENCE.  THE SANDERS CASE AND THE SCRIPPS-HOWARD CASE
DO NOT DISPENSE WITH THAT REQUIREMENT.  THEY MERELY HOLD THAT AN
APPELLANT HAS HIS CASE DECIDED IN LIGHT OF THE STANDARDS OF THE PUBLIC
INTEREST, NOT BY THE CRITERIA WHICH GIVE HIM A STANDING TO APPEAL. 

I DO NOT UNDERSTAND THAT THE OPINION OF THE COURT TAKES A CONTRARY
VIEW.  IT ONLY HOLDS ON THIS PHASE OF THE CASE THAT KOA MADE AN
ADEQUATE SHOWING UNDER SEC. 402(B).  I DISAGREE WITH THAT CONCLUSION. 

FN1  REFERRED TO AS A SORT OF KING'S PROCTOR BY EDGERTON, J., IN
COLORADO RADIO CORP. V. FEDERAL COMMUNICATIONS COMMISSION, 73 APP. D.C.
225, 118 F.2D 24, 28; AND AS "PRIVATE ATTORNEY GENERALS" BY FRANK, J.,
IN ASSOCIATED INDUSTRIES V. ICKES, 134 F.2D 694. 
..END :





U.S. EX REL. T.V.A. V. POWELSON, 319 U.S. 266 


NO. 3.  ARGUED MARCH 12, 13, 1942.  REARGUED MARCH 1, 2, 1943.  -
DECIDED MAY 17, 1943.  - 118 F.2D 79, REVERSED. 


1.  UPON THIS APPEAL UNDER SEC. 25 OF THE TENNESSEE VALLEY AUTHORITY
ACT, THE CIRCUIT COURT OF APPEALS COMPLIED WITH THE REQUIREMENT THAT IT
DISPOSE OF THE MATTER "UPON THE RECORD, WITHOUT REGARD TO THE AWARDS OR
FINDINGS THERETOFORE MADE," AND FIX THE VALUE.  P. 272. 

2.  IN A PROCEEDING TO CONDEMN LANDS UNDER SEC. 25 OF THE TENNESSEE
VALLEY AUTHORITY ACT, THE BURDEN OF ESTABLISHING THEIR VALUE RESTS UPON
THE RESPONDENT LANDOWNER.  P. 273. 

3.  IN A PROCEEDING UNDER SEC. 25 OF THE TENNESSEE VALLEY AUTHORITY
ACT, THE OWNER SOUGHT TO ESTABLISH A SPECIAL VALUE FOR THE LANDS
CONDEMNED UPON THE GROUND OF THEIR SPECIAL ADAPTABILITY, WHEN UNITED
WITH OTHER TRACTS OWNED BY HIM AND WITH TRACTS OWNED BY STRANGERS, FOR
USE IN FORMING A MULTIPLE-DAM, HYDRO-ELECTRIC PLANT WHICH HE
PROJECTED.  HELD: 

(1)  THAT IN ORDER TO PERMIT CONSIDERATION OF SUCH SPECIAL
ADAPTABILITY THERE MUST BE A REASONABLE PROBABILITY OF THE CONDEMNED
TRACT'S BEING THUS COMBINED WITH OTHER TRACTS IN THE NEAR FUTURE,
OTHERWISE THE SPECIAL USE WOULD BE TOO REMOTE AND SPECULATIVE TO HAVE
ANY LEGITIMATE EFFECT UPON THE VALUATION.  P. 275. 

(2) THE LANDOWNER'S PRIVILEGE TO USE THE POWER OF EMINENT DOMAIN -
GRANTED BY THE STATE IN WHICH THE LANDS WERE SITUATE, BUT NOT
EXERCISED, AND REVOCABLE BY THE STATE - MAY NOT BE CONSIDERED IN
DETERMINING WHETHER THERE IS A REASONABLE PROBABILITY THAT THE LANDS
CONDEMNED COULD BE SO UNITED WITH OTHER TRACTS INTO THE PROJECTED POWER
PLANT IN THE REASONABLY NEAR FUTURE.  WITHOUT THE POWER TO CONDEMN, THE
CHANCES OF INCORPORATING LANDS AS CONTEMPLATED BY THE PROJECT ARE TOO
REMOTE AND SLIM TO HAVE ANY LEGITIMATE EFFECT ON THE VALUATION.  P.
276. 

4.  IN CONDEMNING LANDS FOR A FEDERAL PROJECT, THE UNITED STATES IS
NOT REQUIRED TO MAKE COMPENSATION FOR THE LOSS OF A BUSINESS
OPPORTUNITY, DEPENDENT UPON THEIR OWNER'S PRIVILEGE TO USE THE STATE
POWER OF EMINENT DOMAIN IN ACQUIRING OTHER LANDS, WHERE SUCH PRIVILEGE
HAS NOT BEEN EXERCISED AND IS REVOCABLE BY THE STATE, AND WHERE THE
STATE NEED NOT MAKE SUCH COMPENSATION WERE IT THE SPONSOR OF THE
PROJECT AND THE TAKER OF THE LANDS IN QUESTION.  P. 284. 

UNITED STATES EX REL. TENNESSEE VALLEY AUTHORITY V. POWELSON, ASSIGNEE
AND SUCCESSOR IN INTEREST OF SOUTHERN STATES POWER COMPANY ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 314 U.S. 594, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS WHICH AFFIRMED WITH MODIFICATIONS A JUDGMENT OF THE DISTRICT
COURT, 33 F.SUPP.  519, IN A CONDEMNATION CASE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE ARISES OUT OF CONDEMNATION BY THE UNITED STATES ON BEHALF
OF THE TENNESSEE VALLEY AUTHORITY OF ABOUT 12,000 ACRES OF LAND IN
NORTH CAROLINA LYING IN AND ALONG THE HIWASSEE RIVER, A MAJOR TRIBUTARY
OF THE TENNESSEE.  THE LAND INVOLVED IN THE CASE WAS OWNED BY THE
RESPONDENT SOUTHERN STATES POWER COMPANY, A NORTH CAROLINA CORPORATION,
AND BY ITS WHOLLY OWNED SUBSIDIARY, THE UNION POWER COMPANY, A GEORGIA
CORPORATION.  SINCE CONDEMNATION, THE SOUTHERN STATES POWER COMPANY HAS
ASSIGNED ITS PROPERTY INTEREST AND RIGHTS ARISING OUT OF THESE
PROCEEDINGS TO THE RESPONDENT W.V.N. POWELSON, ITS SOLE STOCKHOLDER. 
FOR CONVENIENCE POWELSON AND SOUTHERN STATES WILL BE REFERRED TO
INTERCHANGEABLY AS "RESPONDENT." 

ON JANUARY 28, 1936, WHEN THE ORIGINAL DECLARATION OF TAKING WAS
FILED AND THESE PROCEEDINGS BEGAN, SOUTHERN STATES AND UNION POWER
OWNED A SMALL HYDROELECTRIC GENERATING PLANT ON THE NOTTELY RIVER, A
TRIBUTARY OF THE HIWASSEE.  THIS WAS KNOWN AS THE MURPHY PLANT.  IT HAD
A DISTRIBUTION SYSTEM WHICH SUPPLIED THE TOWN OF MURPHY, NORTH
CAROLINA, AND SURROUNDING TERRITORY.  THESE COMPANIES ALSO OWNED ABOUT
22,000 ACRES OF LAND ON BOTH SIDES OF THE HIWASSEE AND NOTTELY RIVERS. 
THESE INCLUDED LANDS AT FOUR DAM SITES WHICH ARE KNOWN AS THE POWELSON
(SITE OF THE HIWASSEE DAM), APPALACHIA, MURPHY AND NOTTELY SITES, A
LARGE PART OF THE LAND REQUIRED FOR THE POWELSON AND APPALACHIA
PROJECTS, AND SOME OF THE LAND REQUIRED FOR THE MURPHY AND NOTTELY
PROJECTS.  POWELSON, AN EXPERIENCED HYDROELECTRIC ENGINEER, BEGAN AS
EARLY AS 1913 AND CONTINUED UNTIL 1931 TO EXPLORE, SURVEY, AND ACQUIRE
THESE LANDS AND TO DEVELOP AND PROMOTE A PLAN FOR CONSTRUCTING AN
INTEGRATED FOUR-DAM HYDROELECTRIC PLANT ON THESE RIVERS AND AT THESE
SITES.  THE ACTUAL COST OF THE LANDS INVOLVED IN THIS CASE, AS
DISTINGUISHED FROM THE TOTAL INVESTMENT IN THEM,  FN1 WAS $277,821.56. 

SOUTHERN STATES IS SUCCESSOR TO CAROLINA-TENNESSEE POWER CO., CREATED
BY A SPECIAL ACT OF THE NORTH CAROLINA LEGISLATURE  FN2  IN 1909. 
CAROLINA-TENNESSEE WAS GRANTED BROAD POWERS AND WAS AUTHORIZED BY THE
STATE TO TAKE BY EMINENT DOMAIN RIPARIAN LANDS AND WATER RIGHTS ALONG
ANY NON-NAVIGABLE STREAM OF NORTH CAROLINA.  FN3 

THE LANDS CONDEMNED BY THE GOVERNMENT IN THE PRESENT PROCEEDINGS
CONSTITUTE A PART OF THE SITE OF ITS HIWASSEE DAM, A MULTIPLE-PURPOSE
PROJECT CONSTRUCTED BY THE TENNESSEE VALLEY AUTHORITY ON THE HIWASSEE
RIVER AS PART OF THE DEVELOPMENT OF THE TENNESSEE RIVER SYSTEM FOR
HYDROELECTRIC POWER PRODUCTION, NAVIGATION, AND FLOOD CONTROL.  SEE
REPORT TO THE CONGRESS ON THE UNIFIED DEVELOPMENT OF THE TENNESSEE
RIVER SYSTEM, TENNESSEE VALLEY AUTHORITY, MARCH 1936, PP. 18-20, 96,
99.  THE DAM ITSELF IS SITUATED ON LAND ACQUIRED FROM THE RESPONDENT
AND KNOWN AS THE POWELSON SITE.  IT WAS STIPULATED THAT THE HIWASSEE
RIVER IS NOT NAVIGABLE AT THE SITE OF THE HIWASSEE DAM OR IN ANY PART
OF ITS COURSE THROUGH RESPONDENT'S LAND.  FN4 

THE PROPERTY CONDEMNED INCLUDES THE MURPHY DAM AND HYDROELECTRIC
PLANT ON THE NOTTELY RIVER AND ABOUT 12,000 ACRES OF LAND ALONG THE
HIWASSEE RIVER IN NORTH CAROLINA.  OF THESE, SOME 2,000 ACRES HAVE BEEN
CLEARED AND CULTIVATED.  THE REMAINING AREA IS ROUGH AND MOUNTAINOUS,
CONSISTING IN LARGE PART OF ROCK SURFACE, MOUNTAIN PEAKS AND GORGES. 
MUCH OF THE LAND WAS INACCESSIBLE AT THE TIME OF THE TAKING, THERE
BEING PRACTICALLY NO HIGHWAYS THEREON, ALTHOUGH THERE WERE SOME
CARTWAYS. 

THE CONDEMNATION PROCEEDINGS WERE CONDUCTED PURSUANT TO SEC. 25 OF THE
TENNESSEE VALLEY AUTHORITY ACT OF 1933, C. 32, 48 STAT. 58, 16 U.S.C.
SEC. 831X.  FN5  UNDER THE PROCEDURE THEREIN SPECIALLY PRESCRIBED FOR
CONDEMNATIONS ON BEHALF OF THE TENNESSEE VALLEY AUTHORITY, THE DISTRICT
COURT APPOINTED THREE COMMISSIONERS TO TAKE TESTIMONY AND TO DETERMINE
THE VALUE OF THE PROPERTY.  THE GOVERNMENT CONTENDS THAT THE PROPERTY
WAS WORTH FROM $95,000 TO $165,000.  RESPONDENT SOUGHT TO ESTABLISH A
VALUE OF $7,500,000.  RESPONDENT'S VALUATION WAS BASED ON THE THEORY
THAT THE PROPERTY CONDEMNED, TOGETHER WITH OTHER PROPERTY OWNED BY
RESPONDENT, COULD BE UNITED WITH NUMEROUS OTHER TRACTS OWNED BY
STRANGERS FOR THE CONSTRUCTION OF AN ELABORATE FOUR-DAM HYDROELECTRIC
PROJECT.  ONLY ONE OF THE FOUR PROJECTED DAMS WAS TO BE LOCATED ON THE
PROPERTY CONDEMNED, VIZ. AT THE SITE OF THE HIWASSEE DAM, WHICH, TAKEN
ALONE, WAS NOT CONSIDERED COMMERCIALLY FEASIBLE FOR POWER DEVELOPMENT. 
THE COMMISSION FOUND THAT THE LAND CONDEMNED WAS SUITABLE FOR USE AS
THE SITE OF A HYDROELECTRIC POWER PLANT; THAT SUCH USE FURNISHED THE
BASIS FOR ITS GREATEST INHERENT VALUE; AND THAT IT HAD A VALUE OF
$1,437,000,  FN6  THOUGH ITS COST WAS ONLY $277,821.56.  THE COMMISSION
AWARDED $253,000 IN ADDITION AS SEVERANCE DAMAGES IN RESPECT OF LANDS
NOT CONDEMNED BUT REMAINING IN THE OWNERSHIP OF SOUTHERN STATES AND
UNION POWER. 

BOTH PARTIES SOUGHT REVIEW OF THE AWARD BEFORE THE THREE-JUDGE
DISTRICT COURT FOR WHICH SEC. 25 OF THE TENNESSEE VALLEY AUTHORITY ACT
MAKES PROVISION.  THE DISTRICT COURT REDUCED THE VALUE OF THE LAND
CONDEMNED TO $976,289.40 AND SEVERANCE DAMAGES TO $211,791.23, $100,000
OF WHICH WAS FOR THE MURPHY DISTRIBUTION SYSTEM.  INTEREST WAS ADDED
FROM THE FILING OF THE INITIAL DECLARATIONS OF TAKING.  33 F.SUPP. 
519.  THE CIRCUIT COURT OF APPEALS EXCLUDED SEVERANCE DAMAGES FOR THE
TAKING OF THE MURPHY PLANT ON THE NOTTELY RIVER; AND ALSO EXCLUDED THE
$18,907.02 AWARDED AS SEVERANCE DAMAGES WITH RESPECT TO LAND HELD BY
UNION POWER UNLESS WITHIN THIRTY DAYS AFTER THE MANDATE WAS FILED IN
THE DISTRICT COURT THAT CORPORATION SHOULD BE MADE A PARTY SO AS TO
BECOME BOUND BY THE JUDGMENT.  WITH THESE MODIFICATIONS IT AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT.  118 F.2D 79.  THE CASE IS HERE ON A
PETITION FOR WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF THE PUBLIC
IMPORTANCE OF THE ISSUES RAISED. 

I. A PRELIMINARY QUESTION RELATES TO THE SCOPE OF REVIEW BY THE
CIRCUIT COURT OF APPEALS UNDER SEC. 25 OF THE ACT.  THAT SECTION
PROVIDES FOR THE APPOINTMENT OF COMMISSIONERS, WHO ARE "TO EXAMINE INTO
THE VALUE OF THE LANDS SOUGHT TO BE CONDEMNED, TO CONDUCT HEARINGS AND
RECEIVE EVIDENCE, AND GENERALLY TO TAKE SUCH APPROPRIATE STEPS AS MAY
BE PROPER FOR THE DETERMINATION OF THE VALUE" OF THE LANDS.  THE
COMMISSIONERS ARE REQUIRED TO REPORT SUCH VALUE AND MAKE AN AWARD. 
REVIEW OF THE ACTION OF THE COMMISSIONERS IS BY A THREE-JUDGE DISTRICT
COURT, WHICH "SHALL PASS DE NOVO UPON THE PROCEEDINGS HAD BEFORE THE
COMMISSIONERS, MAY VIEW THE PROPERTY, AND MAY TAKE ADDITIONAL
EVIDENCE.  UPON SUCH HEARINGS THE SAID JUDGES SHALL FILE THEIR OWN
AWARD, FIXING THEREIN THE VALUE OF THE PROPERTY SOUGHT TO BE CONDEMNED,
REGARDLESS OF THE AWARD PREVIOUSLY MADE BY THE SAID COMMISSIONERS." 
THERE IS AN APPEAL FROM THAT COURT TO THE CIRCUIT COURT OF APPEALS,
WHICH "SHALL UPON THE HEARING ON SAID APPEAL DISPOSE OF THE SAME UPON
THE RECORD, WITHOUT REGARD TO THE AWARDS OR FINDINGS THERETOFORE MADE
BY THE COMMISSIONERS OR THE DISTRICT JUDGES, AND SUCH CIRCUIT COURT OF
APPEALS SHALL THEREUPON FIX THE VALUE OF THE SAID PROPERTY SOUGHT TO BE
CONDEMNED." 

IT IS CONTENDED THAT THE CIRCUIT COURT OF APPEALS DID NOT PERFORM THE
FUNCTIONS WHICH SEC. 25 PLACED UPON IT.  THAT COURT STATED THAT SEC. 25
PERMITTED IT TO CONSIDER THE FINDINGS UNDER REVIEW "IN THE LIGHT OF THE
RECORD."  118 F.2D P. 83.  IT GAVE WEIGHT TO THE OPPORTUNITY OF THE
COMMISSIONERS AND JUDGES WHO TOOK THE TESTIMONY TO SEE AND HEAR THE
WITNESSES.  BUT WHILE IT ADVERTED TO THOSE CIRCUMSTANCES AND FINDINGS,
AND MODIFIED AND "AFFIRMED" THE JUDGMENT OF THE THREE-JUDGE COURT, WE
CANNOT SAY THAT IT DID NOT PERFORM THE FUNCTIONS WHICH CONGRESS GAVE IT
UNDER SEC. 25. 

THE PURPOSE OF SEC. 25 WAS TO FREE THE CIRCUIT COURT OF APPEALS FROM
THE STRICTURES COMMONLY APPLICABLE TO ITS REVIEW OF DISPUTED QUESTIONS
OF FACT.  UNDER SEC. 25 IT DOES NOT SIT AS A "COURT OF ERRORS."  UNITED
STATES V. REYNOLDS, 115 F.2D 294, 296.  ITS DUTY IS TO DISPOSE OF THE
MATTER "UPON THE RECORD, WITHOUT REGARD TO THE AWARDS OR FINDINGS
THERETOFORE MADE" AND TO FIX THE VALUE.  BUT IT NEED NOT BLIND ITSELF
TO THE SPECIAL ADVANTAGES OF THE TRIBUNALS BELOW IN EVALUATING THE
EVIDENCE.  A TRIAL DE NOVO WITH THE FRESH TAKING OF EVIDENCE IS NOT
REQUIRED.  AN INDEPENDENT REVALUATION OF THE PROPERTY CONDEMNED IS
CONTEMPLATED.  AND THAT REQUIREMENT WAS MET HERE. 

II.  SEC. 25 OF THE ACT AUTHORIZES AWARDS COVERING "THE VALUE OF THE
LANDS SOUGHT TO BE CONDEMNED."  THE STORM CENTER OF THIS CONTROVERSY IS
WHETHER WATER POWER VALUE MAY BE INCLUDED IN RESPONDENT'S AWARD. 

IT IS ARGUED ON BEHALF OF PETITIONER THAT EVEN THOUGH THE HIWASSEE
RIVER IS NON-NAVIGABLE THROUGHOUT THIS PART OF ITS COURSE, COMPENSATION
FOR THE LOSS OF ANY SUPPOSED POWER VALUE IS NO MORE PERMISSIBLE THAN IN
CASE OF A NAVIGABLE STREAM.  IT IS POINTED OUT THAT UNITED STATES V.
CHANDLER-DUNBAR CO., 229 U.S. 53, HELD THAT THERE IS "NO PRIVATE
PROPERTY IN THE FLOW" OF A NAVIGABLE STREAM.  UNITED STATES V.
APPALACHIAN POWER CO., 311 U.S. 377, 427.  AND IT IS CONTENDED THAT
ALTHOUGH THE HIWASSEE RIVER IS NON-NAVIGABLE AT THE POINTS IN QUESTION,
THE FLOW AT THOSE PLACES HAS SUCH A DIRECT AND IMMEDIATE EFFECT UPON
THE NAVIGABLE PORTION OF THE RIVER FARTHER DOWNSTREAM AS TO GIVE THE
UNITED STATES THE SAME PLENARY CONTROL OVER BOTH THE NAVIGABLE AND NON
NAVIGABLE PORTIONS OF THE RIVER (UNITED STATES V. APPALACHIAN POWER
CO., SUPRA; OKLAHOMA V. ATKINSON CO., 313 U.S. 508), THEREBY BRINGING
INTO PLAY THE RULE OF THE CHANDLER-DUNBAR CASE.  CF. UNITED STATES V.
KELLY, 243 U.S. 316.  WE DO NOT STOP TO CONSIDER THAT QUESTION.  FOR IF
WE ASSUME, WITHOUT DECIDING, THAT RIGHTS IN THE "FLOW" OF A NON
NAVIGABLE STREAM CREATED BY LOCAL LAW ARE PROPERTY FOR WHICH THE UNITED
STATES MUST PAY COMPENSATION WHEN IT CONDEMNS THE LANDS OF THE RIPARIAN
OWNER, THE WATER POWER VALUE WHICH RESPONDENT SOUGHT TO ESTABLISH
CANNOT BE ALLOWED. 

THE BURDEN OF ESTABLISHING THE VALUE OF THE LANDS SOUGHT TO BE
CONDEMNED WAS ON RESPONDENT.  RALPH V. HAZEN, 93 F.2D 68, 70; WELCH V.
TENNESSEE VALLEY AUTHORITY, 108 F.2D 95, 101.  RESPONDENT ENDEAVORED TO
CARRY THAT BURDEN BY INTRODUCING EVIDENCE THAT THE PROPERTY CONDEMNED
HAD A FAIR MARKET VALUE OF $7,500,000.  AS WE HAVE SAID, THE THEORY WAS
THAT THE LANDS CONDEMNED, TOGETHER WITH OTHER PROPERTY OWNED BY
RESPONDENT, COULD BE UNITED WITH SEVERAL HUNDRED OTHER TRACTS OWNED BY
STRANGERS AND THAT A FOUR-DAM HYDROELECTRIC PROJECT COULD BE
CONSTRUCTED UPON ALL THOSE LANDS.  FN7  AS WE HAVE NOTED, ONLY ONE OF
THE FOUR HYPOTHETICAL DAMS WAS TO BE LOCATED ON THE LANDS CONDEMNED. 
THAT WAS AT THE HIWASSEE DAM SITE, WHICH, CONSIDERED ALONE, WAS NOT
CONTENDED TO BE PROFITABLE FOR POWER DEVELOPMENT.  ALTHOUGH RESPONDENT
OWNED OR CONTROLLED SOME OF THE OTHER LANDS NECESSARY FOR THE FOUR-DAM
PROJECT, ABOUT HALF OF THEM WERE IN ADVERSE HANDS.  IT WAS PRACTICALLY
CONCEDED THAT THE ACQUISITION OF ALL THE PROPERTY NECESSARY FOR THE
FOUR-DAM DEVELOPMENT COULD NOT, IN ALL REASONABLE PROBABILITY, BE
ACCOMPLISHED WITHOUT RESORT TO THE POWER OF EMINENT DOMAIN.  IT WAS
INSISTED, HOWEVER, THAT SINCE THAT POWER HAD BEEN CONFERRED BY NORTH
CAROLINA, THE CASE SHOULD BE VIEWED AS IF RESPONDENT OWNED EVERY FOOT
OF LAND REQUIRED FOR THE HYPOTHETICAL PROJECT.  RESPONDENT PROCEEDED
FROM THAT ASSUMPTION TO OTHER ASSUMPTIONS:  AN ESTIMATED COST OF
$30,000,000 FOR THE FOUR-DAM PROJECT; AN ANNUAL OUTPUT OF 512,500,000
KWH OF SO-CALLED RESERVE, OR SUPERPRIMARY, OR "SALUDA-TYPE" ENERGY; FN8
A PRODUCTION COST OF ELECTRICITY OF 3.75 MILLS PER KWH; AND A SELLING
PRICE OF 6.34 MILLS PER KWH FOR ALL THE ENERGY PRODUCED.  ON THE BASIS
OF THOSE ASSUMPTIONS AN ASSUMED NET RETURN WAS COMPUTED.  THAT ASSUMED
NET RETURN WAS CAPITALIZED AT A GIVEN RATE AND A PORTION OF THAT SUM,
I.E. $7,500,000, WAS ALLOCATED TO THE LANDS IN QUESTION.  PETITIONER
CHALLENGED MOST OF THOSE ASSUMPTIONS.  IT INTRODUCED EVIDENCE THAT THE
COST OF THE FOUR-DAM PROJECT WOULD BE HIGHER THAN RESPONDENT ASSUMED;
THAT THE TOTAL ANNUAL FIXED CHARGES OF THE PROJECT WOULD EXCEED THOSE
ESTIMATED; THAT THE PRODUCTION OF ENERGY WOULD BE LESS, THE COST PER
KWH WOULD BE GREATER, AND THE SALE PRICE PER KWH WOULD BE LOWER THAN
RESPONDENT ESTIMATED.  THE COMMISSIONERS, THE DISTRICT COURT AND THE
CIRCUIT COURT OF APPEALS FOUND ON THE BASIS OF RESPONDENT'S ESTIMATES
OF THE FOUR-DAM PROJECT THAT THE LANDS HAD A WATER POWER VALUE, AND
THAT THEIR AVAILABILITY FOR POWER PURPOSES CONSTITUTED THE CHIEF
ELEMENT OF THEIR VALUE AND THE BASIS FOR THE HIGHEST VALUE IN THE
PROPERTY.  ALL AGREED, HOWEVER, THAT RESPONDENT'S ESTIMATE OF
$7,500,000 WAS TOO HIGH.  AND AS WE HAVE NOTED, THE DISTRICT COURT AND
THE CIRCUIT COURT OF APPEALS CONCLUDED THAT THE FAIR MARKET VALUE OF
THE LANDS FOR POWER PURPOSES WAS SOME $976,000.    AN OWNER OF LANDS
SOUGHT TO BE CONDEMNED IS ENTITLED TO THEIR "MARKET VALUE FAIRLY
DETERMINED."  UNITED STATES V. MILLER, 317 U.S. 369, 374.  THAT VALUE
MAY REFLECT NOT ONLY THE USE TO WHICH THE PROPERTY IS PRESENTLY DEVOTED
BUT ALSO THAT USE TO WHICH IT MAY BE READILY CONVERTED.  BOOM CO. V.
PATTERSON, 98 U.S. 403; MCCANDLESS V. UNITED STATES, 298 U.S. 342.  IN
THAT CONNECTION THE VALUE MAY BE DETERMINED IN LIGHT OF THE SPECIAL OR
HIGHER USE OF THE LAND WHEN COMBINED WITH OTHER PARCELS; IT NEED NOT BE
MEASURED MERELY BY THE USE TO WHICH THE LAND IS OR CAN BE PUT AS A
SEPARATE TRACT.  MCGOVERN V. NEW YORK, 229 U.S. 363.  BUT IN ORDER FOR
THAT SPECIAL ADAPTABILITY TO BE CONSIDERED, THERE MUST BE A REASONABLE
PROBABILITY OF THE LANDS IN QUESTION BEING COMBINED WITH OTHER TRACTS
FOR THAT PURPOSE IN THE REASONABLY NEAR FUTURE.  OLSON V. UNITED
STATES, 292 U.S. 246, 255.  IN ABSENCE OF SUCH A SHOWING, THE CHANCE OF
THEIR BEING UNITED FOR THAT SPECIAL USE IS REGARDED "AS TOO REMOTE AND
SPECULATIVE TO HAVE ANY LEGITIMATE EFFECT UPON THE VALUATION." 
MCGOVERN V. NEW YORK, SUPRA, P. 372. 

RESPONDENT SEEKS TO AVOID THAT DIFFICULTY BY RELIANCE ON THE POWER OF
EMINENT DOMAIN GRANTED BY NORTH CAROLINA.  THE ARGUMENT IS THAT THE
MEANS OF EFFECTING A COMBINATION OF LANDS IS NOT IMPORTANT - IT IS
WHETHER THE LANDOWNER HAD A REASONABLE CHANCE OF DOING IT.  THIS COURT,
HOWEVER, HELD IN THE MCGOVERN CASE THAT IN ESTIMATING THAT CHANCE OR
PROBABILITY "THE POWER OF EFFECTING THE CHANGE BY EMINENT DOMAIN MUST
BE LEFT OUT."  229 U.S. P. 372.  AND THAT VIEW WAS FOLLOWED IN NEW YORK
V. SAGE, 239 U.S. 57, 61.  RESPONDENT ATTEMPTS TO DISTINGUISH THOSE
CASES ON THE GROUND THAT, SINCE THE LANDOWNERS IN QUESTION DID NOT HAVE
THE POWER OF EMINENT DOMAIN, THEY WERE MERELY DENIED RECOVERY FOR A
VALUE DEPENDENT UPON A COMBINATION WHICH THEY COULD NOT REASONABLY
EXPECT TO EFFECT.  BUT THE THRUST OF THE RULE IS DEEPER.  IF THE
OWNER'S CLAIM AGAINST THE SOVEREIGN WERE INCREASED BY REASON OF THE
POWER OF EMINENT DOMAIN, THEN THE VERY EXISTENCE OF THE RIGHT OF
CONDEMNATION WOULD CONFER ON THE OWNER "A VALUE FOR WHICH HE MUST BE
PAID WHEN THE RIGHT IS EXERCISED."  HALE, VALUE TO THE TAKER IN
CONDEMNATION CASES, 31 COL. REV. 1, 13. 

THE FACT THAT THE OWNER ALSO HAS A POWER OF EMINENT DOMAIN DOES NOT
ALTER THE SITUATION.  SEE TACOMA V. NISQUALLY POWER CO., 57 WASH. 420,
433, 107 P. 199.  THE GRANT OF THE POWER OF EMINENT DOMAIN IS A MERE
REVOCABLE PRIVILEGE FOR WHICH A STATE CANNOT BE REQUIRED TO MAKE
COMPENSATION.  ADIRONDACK RY. CO. V. NEW YORK, 176 U.S. 335; RAMAPO
WATER CO. V. NEW YORK, 236 U.S. 579; WESTERN UNION TELEGRAPH CO. V.
LOUISVILLE & NASHVILLE R. CO., 258 U.S. 13.  A REVOCATION OF THAT
PRIVILEGE IS BUT A RECALL OF A PART OF ITS SOVEREIGN POWER FOR WHICH NO
PRICE MAY BE EXACTED.  NORTH CAROLINA FOLLOWS THAT VIEW.  YADKIN RIVER
POWER CO. V. WHITNEY CO., 150 N.C. 31, 63 S.E. 188.  ACCORDINGLY IT
SEEMS CLEAR THAT IF NORTH CAROLINA RATHER THAN THE UNITED STATES WERE
CONSTRUCTING THIS PUBLIC PROJECT AND CONDEMNING THE IDENTICAL LANDS FOR
THE PURPOSE, RESPONDENT NEED NOT BE COMPENSATED FOR THE LOSS OF AN
OPPORTUNITY TO DEVELOP A POWER PROJECT THROUGH UTILIZATION OF THE RIGHT
TO CONDEMN.  IN CASE THIS WAS NORTH CAROLINA'S PROJECT RESPONDENT'S
CHANCES OF COMBINING THESE NUMEROUS TRACTS INTO ONE OWNERSHIP FOR A
POWER PROJECT WOULD BE MEASURED WITHOUT REFERENCE TO THE POWER OF
EMINENT DOMAIN.  THE INCLUSION OF EMINENT DOMAIN WOULD BE BUT AN
INDIRECT METHOD OF MAKING NORTH CAROLINA PAY FOR THE DESTRUCTION OR
IMPAIRMENT OF THE PRIVILEGE.  FN9  THAT THE PRIVATE COMPANY'S PRIVILEGE
TO USE THE POWER OF EMINENT DOMAIN NEED NOT BE REFLECTED IN THE
VALUATION IF THE PROPERTY WERE TAKEN BY THE STATE IS INDICATED BY THOSE
FEW CASES WHICH SEEM TO HAVE REACHED THE POINT.  SEE TACOMA V.
NISQUALLY POWER CO., SUPRA.  THAT RESULT IS THE NECESSARY IMPORT OF
THIS COURT'S RULING IN SEARS V. AKRON, 246 U.S. 242.  SUIT WAS BROUGHT
IN THAT CASE BY THE TRUSTEE OF THE PROPERTY OF AN OHIO CORPORATION TO
ENJOIN THE CITY OF AKRON FROM CONSTRUCTING A DAM AND RESERVOIR ON THE
CUYAHOGA RIVER.  THE CORPORATION HAD RECEIVED FROM THE STATE OF OHIO
THE RIGHT TO CONSTRUCT AND OPERATE A POWER SYSTEM ON THE RIVER.  AND IT
WAS ALSO GIVEN BY THE STATE THE POWER OF EMINENT DOMAIN SO THAT IT
MIGHT ACQUIRE THE PROPERTY NECESSARY FOR THE PROJECT.  IN THAT CASE THE
LAND ACQUISITION PROGRAM OF THE PRIVATE COMPANY APPARENTLY WAS NOT AS
FAR ADVANCED AS WAS RESPONDENT'S IN THE PRESENT CASE.  BUT THE
DIFFERENCE IN DEGREE OF DEVELOPMENT IS UNIMPORTANT SINCE IN EACH CASE
THE PRIVATE PROJECT WAS STILL INCHOATE AND HAD NOT PROGRESSED BEYOND
THE PROMOTIONAL PHASE WHEN THE PUBLIC PROJECT WAS LAUNCHED.  THIS COURT
HELD THAT ALTHOUGH THE PROJECT CONSTRUCTED BY THE CITY OF AKRON MIGHT
IMPERIL OR WHOLLY DEFEAT THE COMPANY'S PROJECT, THERE WAS NO IMPAIRMENT
OF CONTRACT, AND NO TAKING OR APPROPRIATION OF THE COMPANY'S PROPERTY. 
IN THE LATTER CONNECTION MR. JUSTICE BRANDEIS, SPEAKING FOR THE COURT,
STATED THAT IT WAS CLEAR "THAT OHIO RETAINED THE POWER AS AGAINST ONE
OF ITS CREATURES, TO REVOKE ANY SUCH RIGHT TO APPROPRIATE PROPERTY
UNTIL IT HAD BEEN ACTED UPON BY ACQUIRING THE PROPERTY AUTHORIZED TO BE
TAKEN."  246 U.S. P. 250.  IT WAS ACCORDINGLY HELD THAT THE CITY WAS
FREE AS AGAINST THE COMPANY "TO APPROPRIATE ANY OF THE LAND OR ANY OF
THE WATER RIGHTS WHICH MIGHT OTHERWISE HAVE COME UNDER THE DEVELOPMENT
DESCRIBED IN ITS CERTIFICATE OF INCORPORATION."  ID. PP. 249-250. 

THIS IS A CASE OF FIRST IMPRESSION.  NO PRECEDENT HAS BEEN ADVANCED
WHICH SUGGESTS THAT A DIFFERENT MEASURE OF COMPENSATION SHOULD BE
REQUIRED WHERE THE UNITED STATES RATHER THAN THE STATE IS THE TAKER OF
THE PROPERTY FOR A PUBLIC PROJECT.  NOR HAS ANY REASON BEEN SUGGESTED
WHY AS A MATTER OF PRINCIPLE OR POLICY THERE SHOULD BE A DIFFERENT
MEASURE OF COMPENSATION IN SUCH A CASE.  IT HAS LONG BEEN ASSUMED THAT
IN OTHER RESPECTS THE NATIONAL GOVERNMENT WAS UNDER "NO GREATER
LIMITATION" BY REASON OF THE FIFTH AMENDMENT THAN WERE THE STATES BY
VIRTUE OF THE FOURTEENTH.  HAMILTON V. KENTUCKY DISTILLERIES CO., 251
U.S. 146, 156.  THAT VIEW IS IMPLICIT IN CONDEMNATION CASES WHERE THE
AMOUNT OF JUST COMPENSATION REQUIRED BY THE FIFTH AMENDMENT IS IN
ISSUE.  SEE, FOR EXAMPLE, OMNIA CO. V. UNITED STATES, 261 U.S. 502, 508
509.  WE DO NOT SEE WHY THE PROTECTION GIVEN TO "PRIVATE PROPERTY"
UNDER THE FIFTH AMENDMENT IMPOSES UPON THE UNITED STATES A DUTY TO
PROVIDE A HIGHER MEASURE OF COMPENSATION FOR THESE LANDS THAN WOULD BE
IMPOSED BY THE FOURTEENTH AMENDMENT UPON THE STATE IF IT WERE THE
TAKER.  FN10  NOR HAS ANY REASON BASED ON CONSIDERATIONS OF EQUITY AND
FAIR DEALING BEEN ADVANCED FOR JUSTIFYING A HIGHER MEASURE OF
COMPENSATION IN THE INSTANT CASE BECAUSE THE LANDS ARE BEING TAKEN FOR
A PUBLIC PROJECT SPONSORED BY THE UNITED STATES RATHER THAN BY NORTH
CAROLINA.  THE WARRANT OR AUTHORITY FOR PUTTING THE UNITED STATES AT
SUCH A DISADVANTAGE IS NOT APPARENT. 

THE RIGHT OF THE UNITED STATES TO EXERCISE THE POWER OF EMINENT
DOMAIN IS "COMPLETE IN ITSELF" AND "CAN NEITHER BE ENLARGED NOR
DIMINISHED BY A STATE."  KOHL V. UNITED STATES, 91 U.S. 367, 374. 
THOUGH THE MEANING OF "PROPERTY" AS USED IN SEC. 25 OF THE ACT AND IN
THE FIFTH AMENDMENT IS A FEDERAL QUESTION, IT WILL NORMALLY OBTAIN ITS
CONTENT BY REFERENCE TO LOCAL LAW.  YET WHEN WE LOOK TO LOCAL LAW IN
THE PRESENT CASE, WE FIND NO INDICATION THAT FOR PURPOSES OF
CONDEMNATION PROCEEDINGS INSTITUTED BY NORTH CAROLINA THE VALUE OF THE
LANDS IN QUESTION WOULD BE INCREASED BY REASON OF RESPONDENT'S
PRIVILEGE TO USE THE POWER OF EMINENT DOMAIN.  SO FAR AS CONSTITUTIONAL
COMPULSIONS ARE CONCERNED, IT IS PLAIN, AS WE HAVE NOTED, THAT THAT
FACTOR NEED NOT BE INCLUDED IN CASE THE STATE WERE THE CONDEMNOR. 
MOREOVER, THE RESULT IN THE PRESENT CASE IS NOT DIFFERENT IF WE ASSUME
WITH THE DISTRICT COURT (33 F.SUPP.  P. 522) THAT RESPONDENT'S "PRIOR
RIGHT" UNDER NORTH CAROLINA LAW "CONSTITUTED A VALUABLE RIGHT, WHICH IS
DESTROYED BY THIS CONDEMNATION PROCEEDING."  IT DOES NOT FOLLOW THAT
THAT "PRIOR RIGHT" WAS "PRIVATE PROPERTY" WITHIN THE MEANING OF THE
FIFTH AMENDMENT WHICH WAS TAKEN BY THE UNITED STATES. 

THE LAW OF EMINENT DOMAIN IS FASHIONED OUT OF THE CONFLICT BETWEEN
THE PEOPLE'S INTEREST IN PUBLIC PROJECTS AND THE PRINCIPLE OF INDEMNITY
TO THE LANDOWNER.  WE RECENTLY STATED IN UNITED STATES V. MILLER,
SUPRA, P. 375, THAT "COURTS HAVE HAD TO ADOPT WORKING RULES IN ORDER TO
DO SUBSTANTIAL JUSTICE IN EMINENT DOMAIN PROCEEDINGS."  EQUITY AND FAIR
DEALING DO NOT REQUIRE THE PAYMENT BY THE UNITED STATES TO THE
LANDOWNER OF THE AMOUNT OF A VALUATION OF HIS LANDS BASED ON THE
EXISTENCE OF HIS PRIVILEGE TO USE THE POWER OF EMINENT DOMAIN.  IT IS
"PRIVATE PROPERTY" WHICH THE FIFTH AMENDMENT DECLARES SHALL NOT BE
TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION.  THE POWER OF EMINENT
DOMAIN CAN HARDLY BE SAID TO FALL IN THAT CATEGORY.  IT IS NOT A
PERSONAL PRIVILEGE; IT IS A SPECIAL AUTHORITY IMPRESSED WITH A PUBLIC
CHARACTER AND TO BE UTILIZED FOR A PUBLIC END.  FN11  AN AWARD BASED ON
THE VALUE OF THAT PRIVILEGE WOULD BE AN APPROPRIATION OF PUBLIC
AUTHORITY TO A WHOLLY PRIVATE END.  THE DENIAL OF SUCH AN AWARD TO THE
LANDOWNER DOES NO INJUSTICE.  IT IS TRUE THAT RESPONDENT'S POSSESSION
OF THE POWER OF EMINENT DOMAIN WAS IN PART THE BASIS OF AN OPPORTUNITY
TO UNITE THE PRESENT LANDS WITH OTHERS INTO A POWER PROJECT.  BUT HE IS
NOT BEING DEPRIVED OF VALUES WHICH RESULT FROM HIS EXPENDITURES OR
ACTIVITIES.  THE FRUITS OF THE EXERCISE OF THAT POWER OF EMINENT DOMAIN
ARE NOT BEING APPROPRIATED.  AND THERE IS NO BASIS FOR RAISING AN
ESTOPPEL AGAINST THE UNITED STATES AS THERE WAS THOUGHT TO BE IN
MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312.  SEE OMNIA
CO. V. UNITED STATES, SUPRA, PP. 513-514.  THE LANDOWNER IS, TO BE
SURE, DEPRIVED OF A PREFERENTIAL ADVANTAGE, WHICH WAS AN INCIDENTAL
ATTRIBUTE OF THE PUBLIC AUTHORITY WITH WHICH THE STATE ENDOWED HIM. 
BUT THAT ADVANTAGE HAD NO HIGHER DIGNITY THAN A PROMISE OF A GRATUITY. 
IT HAD NOT BEEN AVAILED OF TO DEVELOP AN EXISTING AND GOING ENTERPRISE
WHICH THE UNITED STATES APPROPRIATED.  RESPONDENT'S PROJECT WAS ONLY A
SPECULATIVE VENTURE - A PROMOTIONAL SCHEME WHOLLY IN FUTURO.  THUS WE
CONCLUDE THAT RESPONDENT HAD NO INTEREST UNDER HIS UNEXERCISED POWER OF
EMINENT DOMAIN WHICH RISES TO THE ESTATE OF "PRIVATE PROPERTY" WITHIN
THE MEANING OF THE FIFTH AMENDMENT.  CF. RUNDLE V. DELAWARE & R. CANAL
CO., 14 HOW.  80, 94. 

THIS PUBLIC PROJECT, TO BE SURE, HAS FRUSTRATED RESPONDENT'S PLAN FOR
THE EXPLOITATION OF ITS POWER OF EMINENT DOMAIN.  WE MAY ASSUME THAT
THAT PRIVILEGE WAS A THING OF VALUE AND THAT THIS FRUSTRATION OF THE
PLAN MEANS A LOSS TO RESPONDENT.  BUT OUR DENIAL OF COMPENSATION FOR
THAT LOSS DOES NOT MAKE THIS AN EXCEPTIONAL CASE IN THE LAW OF EMINENT
DOMAIN.  THERE ARE NUMEROUS BUSINESS LOSSES WHICH RESULT FROM
CONDEMNATION OF PROPERTIES BUT WHICH ARE NOT COMPENSABLE UNDER THE
FIFTH AMENDMENT.  THE POINT IS WELL ILLUSTRATED BY TWO OTHER LINES OF
CASES IN THIS FIELD.  IT IS A WELL SETTLED RULE THAT WHILE IT IS THE
OWNER'S LOSS, NOT THE TAKER'S GAIN, WHICH IS THE MEASURE OF
COMPENSATION FOR THE PROPERTY TAKEN (UNITED STATES V. MILLER, SUPRA;
UNITED STATES V. CHANDLER-DUNBAR CO., SUPRA, P. 81; BOSTON CHAMBER OF
COMMERCE V. BOSTON, 217 U.S. 189, 195), NOT ALL LOSSES SUFFERED BY THE
OWNER ARE COMPENSABLE UNDER THE FIFTH AMENDMENT.  IN ABSENCE OF A
STATUTORY MANDATE (UNITED STATES V. MILLER, SUPRA, P. 376) THE
SOVEREIGN MUST PAY ONLY FOR WHAT IT TAKES, NOT FOR OPPORTUNITIES WHICH
THE OWNER MAY LOSE.  SEE ORGEL, VALUATION UNDER EMINENT DOMAIN (1936)
SEC. 71, SEC. 73.  ON THE ONE HAND ARE SUCH CASES AS MONONGAHELA
NAVIGATION CO. V. UNITED STATES,  FN12  SUPRA, WHERE IT WAS HELD THAT
THE UNITED STATES HAD APPROPRIATED A GOING ENTERPRISE TO ITS OWN ENDS
AND MUST MAKE COMPENSATION ACCORDINGLY.  BUT IT IS WELL SETTLED IN THIS
COURT FN13  THAT, "FRUSTRATION AND APPROPRIATION ARE ESSENTIALLY
DIFFERENT THINGS."  OMNIA CO. V. UNITED STATES, SUPRA, P. 513.  THUS IN
MITCHELL V. UNITED STATES, 267 U.S. 341, THE OWNER WAS DENIED
COMPENSATION FOR THE DESTRUCTION OF HIS BUSINESS WHICH RESULTED FROM
THE TAKING OF HIS LAND FOR A PUBLIC PROJECT EVEN THOUGH THE BUSINESS
COULD NOT BE REESTABLISHED ELSEWHERE.  THIS COURT, AFTER NOTING THAT
"SETTLED RULES OF LAW" PRECLUDED A CONSIDERATION OF "CONSEQUENTIAL
DAMAGES" FOR LOSSES OF A BUSINESS OR ITS DESTRUCTION, STATED:  "NO
RECOVERY THEREFOR CAN BE HAD NOW AS FOR A TAKING OF THE BUSINESS. 
THERE IS NO FINDING AS A FACT THAT THE GOVERNMENT TOOK THE BUSINESS, OR
THAT WHAT IT DID WAS INTENDED AS A TAKING.  IF THE BUSINESS WAS
DESTROYED, THE DESTRUCTION WAS AN UNINTENDED INCIDENT OF THE TAKING OF
LAND."  267 U.S. P. 345.  THAT WHICH IS NOT "PRIVATE PROPERTY" WITHIN
THE MEANING OF THE FIFTH AMENDMENT LIKEWISE MAY BE A THING OF VALUE
WHICH IS DESTROYED OR IMPAIRED BY THE TAKING OF LANDS BY THE UNITED
STATES.  BUT LIKE THE BUSINESS DESTROYED BUT NOT "TAKEN" IN THE
MITCHELL CASE IT NEED NOT BE REFLECTED IN THE AWARD DUE THE LANDOWNER
UNLESS CONGRESS SO PROVIDES. 

IT IS NO ANSWER TO SAY THAT THE EVIDENCE AS TO THE PROFITS FROM
RESPONDENT'S HYPOTHETICAL FOUR-DAM PROJECT WAS INTRODUCED NOT AS THE
BASIS OF AN AWARD FOR LOSS OF PROFITS OR BUSINESS BUT ONLY AS A BASIS
FOR ESTIMATING THE TRUE WATER POWER VALUE OF THE PROPERTY.  THE
COMPUTATION OF THOSE PROFITS ASSUMES THE VERY EXISTENCE OF THE
PROJECTED ENTERPRISE WHICH THE POWER OF EMINENT DOMAIN ALONE COULD MAKE
POSSIBLE AND WHICH THESE CONDEMNATIONS FRUSTRATED.  WE REPEAT THAT AN
ALLOWANCE OF ANY SUCH VALUE WOULD ENTAIL A PAYMENT FOR THE LOSS OF A
BUSINESS PROSPECT BASED ON AN UNEXERCISED POWER OF EMINENT DOMAIN.  AS
WE HAVE SAID, NO REASON BASED ON PRECEDENT OR PRINCIPLE APPEARS WHY
RESPONDENT'S PRIVILEGE TO USE THE POWER OF EMINENT DOMAIN SHOULD BE
TREATED AS "PRIVATE PROPERTY" WITHIN THE MEANING OF THE FIFTH AMENDMENT
SO AS TO GIVE RISE TO A PRIVATE CLAIM AGAINST THE PUBLIC TREASURY.  NOR
IS THERE ANY INDICATION THAT CONGRESS ADOPTED IN THIS REGARD A MORE
LIBERALIZED STANDARD OF COMPENSATION THAN WOULD BE PROVIDED UNDER THE
FIFTH AMENDMENT.    IT IS SUGGESTED THAT THIS RESULT WOULD MEAN THAT IN
CONDEMNATION PROCEEDINGS THE UNITED STATES NEED NOT PAY THE VALUE OF
THE PROPERTY AT THE TIME OF THE TAKING IF THE STATE WHERE THE PROPERTY
IS LOCATED MIGHT DESTROY OR DIMINISH THAT VALUE THROUGH AN APPROPRIATE
EXERCISE OF ITS POLICE POWER.  IT IS MANIFEST THAT SUCH IS NOT THE
CASE.  A STATE MAY OF COURSE DESTROY OR DIMINISH VALUES BY AN ASSERTION
OF ITS POLICE POWER WITHOUT THE NECESSITY OF MAKING COMPENSATION FOR
THE LOSS.  HAMILTON V. KENTUCKY DISTILLERIES CO., SUPRA; BLOCK V.
HIRSCH, 256 U.S. 135, 156.  WHILE SUCH A CHANGE WILL NOT BE PRESUMED
(UNITED STATES V. RIVER ROUGE CO., 269 U.S. 411), THE POSSIBILITY OR
PROBABILITY OF SUCH ACTION, SO FAR AS IT AFFECTS PRESENT VALUES, IS A
PROPER SUBJECT FOR CONSIDERATION IN VALUING PROPERTY FOR PURPOSES OF A
CONDEMNATION AWARD.  SEE REICHELDERFER V. QUINN, 287 U.S. 315, 323.  WE
DO NOT DISTURB THOSE GENERAL PRINCIPLES.  THE UNITED STATES NO MORE
THAN A STATE CAN BE EXCUSED FROM PAYING JUST COMPENSATION MEASURED BY
THE VALUE OF THE PROPERTY AT THE TIME OF THE TAKING MERELY BECAUSE IT
COULD DESTROY THAT VALUE BY APPROPRIATE LEGISLATION OR REGULATION.  BUT
WE HAVE HERE A UNIQUE SITUATION.  THE POWER OF EMINENT DOMAIN WHICH
RESPONDENT SEEKS TO HAVE REFLECTED IN THE VALUATION IS LARGELY
UNEXERCISED AND NEED NOT BE REFLECTED IN THE MEASURE OF COMPENSATION IF
THE STATE WHICH CONFERRED THE PRIVILEGE WERE THE TAKER OF THE LANDS. 
IF THESE NUMEROUS TRACTS HAD ALREADY BEEN UNITED BY RESPONDENT THROUGH
THE POWER OF EMINENT DOMAIN INTO A POWER PROJECT, DISTINCT PROBLEMS
WOULD BE POSED AS SEARS V. AKRON, SUPRA, INDICATES.  THEN THE UNITED
STATES WOULD BE ACQUIRING A BUSINESS, NOT SIMPLY FRUSTRATING A
PROMOTIONAL SCHEME.  WE MERELY HOLD THAT THE UNITED STATES, IN ABSENCE
OF A SPECIFIC STATUTORY REQUIREMENT, NEED NOT MAKE COMPENSATION FOR THE
LOSS OF A BUSINESS OPPORTUNITY BASED ON THE UNEXERCISED PRIVILEGE TO
USE THE POWER OF EMINENT DOMAIN WHERE THE STATE NEED NOT DO SO WERE IT
THE SPONSOR OF THE PUBLIC PROJECT AND THE TAKER OF THE LANDS.  THE
CONSTITUTIONAL OBLIGATION OF THE UNITED STATES TO MAKE COMPENSATION
DOES NOT EXTEND SO FAR. 

IT IS TRUE THAT THIS RESULT WILL REDUCE AN AWARD WHICH THE CIRCUIT
COURT OF APPEALS NOTED WAS APPROXIMATELY EQUAL TO RESPONDENT'S TOTAL
INVESTMENT IN THE LANDS ACQUIRED FOR ITS PROJECT, PLUS 3% INTEREST. 
BUT THE FIFTH AMENDMENT ALLOWS THE OWNER ONLY THE FAIR MARKET VALUE OF
HIS PROPERTY; IT DOES NOT GUARANTEE HIM A RETURN OF HIS INVESTMENT. 
MINNESOTA RATE CASES, 230 U.S. 352, 454; BROOKS-SCANLON CORP. V. UNITED
STATES, 265 U.S. 106, 123; OLSON V. UNITED STATES, SUPRA, P. 255. 

THE RESULT IS THAT RESPONDENT'S PRIVILEGE TO USE THE POWER OF EMINENT
DOMAIN MAY NOT BE CONSIDERED IN DETERMINING WHETHER THERE IS A
REASONABLE PROBABILITY OF THE LANDS IN QUESTION BEING COMBINED WITH
OTHER TRACTS INTO A POWER PROJECT IN THE REASONABLY NEAR FUTURE.  IF
THE POWER OF EMINENT DOMAIN BE LEFT OUT OF ACCOUNT, THE CHANCES OF
MAKING THE COMBINATION APPEAR TO BE TOO REMOTE AND SLIM "TO HAVE ANY
LEGITIMATE EFFECT UPON THE VALUATION."  MCGOVERN V. NEW YORK, SUPRA, P.
372.  RESPONDENT THEREFORE HAS NOT ESTABLISHED THE BASIS FOR PROOF OF
THE WATER POWER VALUE WHICH WAS ASSERTED. 

WE HOLD ONLY THAT PROFITS, ATTRIBUTABLE TO THE ENTERPRISE WHICH
RESPONDENT HOPED TO LAUNCH, ARE INADMISSIBLE AS EVIDENCE OF THE VALUE
OF THE LANDS WHICH WERE TAKEN.  RESPONDENT IS, OF COURSE, ENTITLED TO
THE MARKET VALUE OF THE PROPERTY FAIRLY DETERMINED.  AND THAT VALUE
SHOULD BE FOUND IN ACCORDANCE WITH THE ESTABLISHED RULES (UNITED STATES
V. MILLER, SUPRA) - UNINFLUENCED, SO FAR AS PRACTICABLE, BY THE
CIRCUMSTANCE THAT HE WHOSE LANDS ARE CONDEMNED HAS THE POWER OF EMINENT
DOMAIN.  WE DO NOT REACH THE QUESTION MUCH DISCUSSED AT THE BAR AND IN
THE BRIEFS WHETHER EVIDENCE OF THE EARNINGS OF RESPONDENT'S
HYPOTHETICAL FOUR-DAM PROJECT SHOULD HAVE BEEN EXCLUDED FOR THE FURTHER
REASON THAT IT WAS TOO SPECULATIVE.  FN14 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT
COURT OF APPEALS FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  THE SUM OF $1,061,942.53 HAD BEEN INVESTED BY RESPONDENT THROUGH
1935 IN THE ENTIRE 22,000 ACRES OF LAND OWNED BY IT.  OF THIS SUM
POWELSON PERSONALLY CONTRIBUTED $586,196.21.  THE TOTAL EXPENDITURE
INCLUDED $188,271.86 FOR LANDS NOT CONDEMNED, $73,412.68 FOR TAXES,
$82,480.81 FOR NEW YORK OFFICE EXPENSE, $94,074.71 FOR LEGAL EXPENSES,
$14,321.68 FOR TRAVELLING EXPENSES, $64,358.46 FOR CONSTRUCTION OF
TRANSMISSION LINES FOR AND OPERATION OF THE MURPHY PLANT, $194,487.50
FOR INTEREST AND AMORTIZATION AS RESPECTS THE BONDS ON THE MURPHY
PLANT, AND EXPENDITURES FOR SURVEYING, ENGINEERING STUDIES, ADVERTISING
AND FURNITURE. 

FN2  N.C., PRIV.  L. 1909, C. 76, P. 185. 

FN3  A RIVAL, THE HIAWASSEE RIVER POWER COMPANY, ORGANIZED UNDER THE
GENERAL LAWS OF THE STATE, PROCEEDED TO ACQUIRE LANDS AND RIGHTS BY
CONTRACT, DEED AND CONDEMNATION, AND THREATENED TO CONSTRUCT A
HYDROELECTRIC PLANT ON THE HIWASSEE RIVER WHICH WOULD INTERFERE WITH
THE DEVELOPMENT PROJECTED BY CAROLINA-TENNESSEE.  CAROLINA-TENNESSEE
ENGAGED IN A LONG LITIGATION TO ESTABLISH ITS RIGHTS AS AGAINST ITS
RIVAL.  THAT LITIGATION ESTABLISHED THE PRIOR AND DOMINANT RIGHT OF
RESPONDENT'S PREDECESSOR TO DEVELOP THE WATER POWER IN THIS TERRITORY
AND SUSTAINED ITS CLAIM TO CONDEMN THE LAND AND WATER RIGHTS OF THE
HIAWASSEE RIVER POWER COMPANY.  CAROLINA-TENNESSEE POWER CO. V.
HIAWASSEE RIVER POWER CO., 171 N.C. 248, 88 S.E. 349(1916), 175 N.C.
668, 96 S.E. 99(1918), 186 N.C. 179, 119 S.E. 213(1923), 188 N.C. 128,
123 S.E. 312(1924). 

FN4  AND SEE TENNESSEE RIVER AND TRIBUTARIES, H. DOC. NO. 328, 71ST
CONG., 2D SESS., P. 216. 

FN5  SEE ALSO, 46 STAT. 1421, 40 U.S.C. SEC. 258A; SEC. 4(H)(I) OF
THE TENNESSEE VALLEY AUTHORITY ACT OF 1933, 48 STAT. 58-61, 16 U.S.C.
SEC. 831C (H)(I). 

FN6  THE COMMISSION ALSO AWARDED $110,000 FOR THE MURPHY PLANT, WHICH
SUM HAD BEEN DEPOSITED BY THE UNITED STATES WHEN IT FILED ITS
DECLARATION OF TAKING. 

FN7  WHILE RESPONDENT OWNED MOST OF THE LANDS NECESSARY FOR THE
APPALACHIA RESERVOIR, ABOUT HALF OF THOSE NOT YET ACQUIRED LAY IN THE
STATE OF TENNESSEE, IN WHICH, SO FAR AS APPEARS, IT HAD NO POWER OF
EMINENT DOMAIN.  AND, ACCORDING TO RESPONDENT'S ESTIMATES OF THE LANDS
NECESSARY FOR THE OTHER THREE PROJECTS, IT HAD YET TO ACQUIRE 22% OF
THE POWELSON RESERVOIR, 73% OF THE NOTTELY, AND 96% OF THE MURPHY. 

FN8  THE THEORY WAS THAT THE PROJECTED RESERVOIRS WOULD STORE WATER
DURING THE WET SEASON AND THAT THE POWER WOULD BE SOLD NEIGHBORING
UTILITIES DURING THE DRY SEASON.  THE NAME GIVEN THAT TYPE OF POWER IS
SAID TO DERIVE FROM THE FACT THAT LEXINGTON WATER POWER CO. SOLD THE
OUTPUT OF ITS SALUDA PLANT TO DUKE POWER CO. ON A SIMILAR BASIS. 

FN9  WE DO NOT HAVE HERE THE QUESTION OF A MARKET VALUE AFFECTED BY
MARKET PRICES WHICH MAY REFLECT TO SOME EXTENT THE POWER TO CONDEMN. 
AS TO THAT SITUATION THIS COURT STATED IN OLSON V. UNITED STATES,
SUPRA, P. 256:  "IT IS COMMON KNOWLEDGE THAT PUBLIC SERVICE
CORPORATIONS AND OTHERS HAVING THAT POWER (EMINENT DOMAIN) FREQUENTLY
ARE ACTUAL OR POTENTIAL COMPETITORS, NOT ONLY FOR TRACTS HELD IN SINGLE
OWNERSHIP BUT ALSO FOR RIGHTS OF WAY, LOCATIONS, SITES AND OTHER AREAS
REQUIRING THE UNION OF NUMEROUS PARCELS HELD BY DIFFERENT OWNERS.  AND,
TO THE EXTENT THAT PROBABLE DEMAND BY PROSPECTIVE PURCHASERS OR
CONDEMNORS AFFECTS MARKET VALUE, IT IS TO BE TAKEN INTO ACCOUNT." 

FN10  CF. CHICAGO, B. & Q.R. CO. V. CHICAGO, 166 U.S. 226, 233-241,
ARISING UNDER THE FOURTEENTH AMENDMENT. 

FN11  SEE POLLARD'S LESSEE V. HAGAN, 3 HOW.  212, 223; BOOM CO. V.
PATTERSON, 98 U.S. 403, 406; UNITED STATES V. JONES, 109 U.S. 513, 518
519; SPENCER V. RAILROAD, 137 N.C. 107, 121-122, 49 S.E. 96; JEFFRESS
V. GREENVILLE, 154 N.C. 490, 493-494, 70 S.E. 919; WISSLER V. YADKIN
RIVER POWER CO., 158 N.C. 465, 74 S.E. 460.  IN THE LATTER CASE THE
SUPREME COURT OF NORTH CAROLINA STATED (PP. 466-467):  "THIS POWER OF
EMINENT DOMAIN IS CONFERRED UPON CORPORATIONS AFFECTED WITH PUBLIC USE,
NOT SO MUCH FOR THE BENEFIT OF THE CORPORATIONS THEMSELVES, BUT FOR THE
USE AND BENEFIT OF THE PEOPLE AT LARGE." 

FN12  AND SEE LONG ISLAND WATER SUPPLY CO. V. BROOKLYN, 166 U.S. 685;
CINCINNATI V. LOUISVILLE & NASHVILLE R. CO., 223 U.S. 390; PENNSYLVANIA
HOSPITAL V. PHILADELPHIA, 245 U.S. 20; BROOKS-SCANLON CORP. V. UNITED
STATES, 265 U.S. 106; DE LAVAL STEAM TURBINE CO. V. UNITED STATES, 284
U.S. 61.  IN THE MONONGAHELA CASE THE UNITED STATES CONDEMNED A LOCK
AND DAM CONSTRUCTED AT THE INVITATION OF THE UNITED STATES AND OPERATED
BY THE OWNER UNDER A FRANCHISE FROM PENNSYLVANIA.  THIS COURT HELD THAT
THE SPECIAL FACTS OF THE CASE REQUIRED THAT THE FRANCHISE OR GOING
CONCERN VALUE OF THE ENTERPRISE BE INCLUDED IN THE COMPENSATION PAYABLE
TO THE OWNER.  IT WAS SAID IN THE FIRST PLACE THAT THE FRANCHISE
GRANTED TO THE COMPANY BY PENNSYLVANIA WAS A VALUABLE PROPERTY RIGHT,
SINCE IT WAS A CONTRACT UNDER THE RULE OF DARTMOUTH COLLEGE V.
WOODWARD, 4 WHEAT.  518, AND PROTECTED AGAINST IMPAIRMENT BY THE
STATE.  SECONDLY, THE COURT NOTED THAT THE UNITED STATES DID MORE THAN
DESTROY THE BUSINESS; IT APPROPRIATED THE ENTERPRISE FOR PUBLIC
PURPOSES.  MOREOVER, AS WAS STATED IN OMNIA CO. V. UNITED STATES,
SUPRA, PP. 513-514, THE MONONGAHELA CASE "RESTED PRIMARILY UPON THE
DOCTRINE OF ESTOPPEL, AS THIS COURT HAS IN SEVERAL CASES SINCE POINTED
OUT." 

FN13  SEE BOTHWELL V. UNITED STATES, 254 U.S. 231; JOSLIN CO. V.
PROVIDENCE, 262 U.S. 668, 675; ATWATER & CO. V. UNITED STATES, 275 U.S.
188; UNITED STATES V. CARVER, 278 U.S. 294; MULLEN BENEVOLENT CORP. V.
UNITED STATES, 290 U.S. 89. 

FN14  SEE SHARP V. UNITED STATES, 191 U.S. 341, 348-350; SAN DIEGO
LAND & TOWN CO. V. NEALE, 88 CAL. 50, 58-63, 25 P. 977; MATTER OF CITY
OF NEW YORK, 118 APP. DIV. 272, 275, 103 N.Y.S. 441; NEW YORK CENTRAL
R. CO. V. MALONEY, 234 N.Y. 208, 218, 137 N.E. 305; SPARKILL REALTY
CORP. V. NEW YORK, 268 N.Y. 192, 197 N.E. 192; BURT V. WIGGLESWORTH,
117 MASS. 302, 306; HAMILTON V. PITTSBURG, B. & L.E.R. CO., 190 PA. ST.
51, 57, 42 A. 369.  CF. UNITED GAS CO. V. RAILROAD COMMISSION, 278 U.S.
300, 317-318. 

MR. JUSTICE JACKSON, DISSENTING: 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER AND I
UNDERSTAND THE COURT TO HOLD THAT PROPERTY PHYSICALLY ADAPTABLE TO
POWER PURPOSES, TAKEN BY THE FEDERAL GOVERNMENT FOR POWER PURPOSES
AMONG OTHERS, IS TO BE VALUED AS WORTHLESS FOR POWER PURPOSES AS MATTER
OF LAW BECAUSE ITS PROJECTED DEVELOPMENT MIGHT BE DEFEATED IF THE STATE
SHOULD REVOKE THE POWER OF EMINENT DOMAIN ADMITTEDLY POSSESSED BY THE
OWNER AT THE TIME OF THE TAKING.  WE THINK IT DENIES PROPER EFFECT TO
STATE LAW AND POLICY IN EFFECT AT THE TIME OF TAKING. 

UNLESS THIS DECISION OVERRULES THE LAW AS STATED BY MR. JUSTICE
BRANDEIS FOR A UNANIMOUS COURT, FLOWING STREAMS ARE NATURAL RESOURCES
OWNED AND GOVERNED BY THE STATES, AND THE RIGHTS OF THEIR GRANTEES AND
OF RIPARIAN OWNERS ARE SETTLED BY THE LOCAL LAW WHICH IS CONCLUSIVE ON
US.  PORT OF SEATTLE V. OREGON & WASHINGTON R. CO., 255 U.S. 56; ST.
ANTHONY FALLS WATER POWER CO. V. ST. PAUL WATER COMM'RS, 168 U.S. 349;
SHIVELY V. BOWLBY, 152 U.S. 1; CF. UNITED STATES V. OREGON, 295 U.S. 1,
6-7.  THE STATES HAVE ASSUMED THIS TO BE THEIR RIGHT AND HAVE WRITTEN
INTO THEIR LAWS AND CONSTITUTIONS VARIOUS SYSTEMS OF CONTROL AND
DEVELOPMENT DEEMED SUITABLE TO THEIR RESPECTIVE CLIMATES, INDUSTRIES OR
ECONOMIES.  FN1 

THE HIWASSEE RIVER, THEREFORE, IS A RESOURCE OF THE STATE OF NORTH
CAROLINA.  TO OBTAIN THE ADVANTAGE OF ITS LATENT ENERGY THAT STATE BY
SPECIAL ACT OF ITS LEGISLATURE CREATED A CORPORATION AND GAVE IT
EXTENSIVE POWERS INCLUDING THE RIGHT OF EMINENT DOMAIN.  FN2  THE
CORPORATION ACQUIRED, PARTLY BY PURCHASE AND PARTLY BY CONDEMNATION,
THE DAM SITES, BED OF THE STREAM, RIPARIAN LANDS AND KEY PROPERTIES
NECESSARY TO THE DEVELOPMENT.  THE RIGHT TO ACQUIRE BY CONDEMNATION ANY
ADDITIONAL LANDS NEEDED WAS NEVER REPEALED OR WITHDRAWN BUT ON THE
OTHER HAND WAS CONFIRMED BY THE STATE COURTS IN A SERIES OF
LITIGATIONS.  FN3  THERE IS NO FINDING OR EVIDENCE THAT FORFEITURE,
REPEAL OR IMPAIRMENT OF THESE RIGHTS HAS BEEN CONSIDERED OR THREATENED
BY THE STATE OR IS EVEN REMOTELY PROBABLE, EVEN IF LEGALLY POSSIBLE. 

UNDER ITS PARAMOUNT POWERS OVER NAVIGATION THE FEDERAL GOVERNMENT HAS
ELECTED TO TAKE THIS RESOURCE OUT OF THE CONTROL OF THE STATE AND AWAY
FROM THE GRANTEE CORPORATION WHICH IS SUBJECT TO STATE TAXING AND
REGULATORY POWER.  THIS IT MAY DO, BUT ONLY UPON MAKING JUST
COMPENSATION.  BUT THE COURT HOLDS THAT COMPENSATION MUST BE COMPUTED
AS IF THE STATE HAD REFUSED TO GRANT WHAT IT HAS GRANTED OR HAD
WITHDRAWN WHAT IT HAS GIVEN NO INDICATION OF WITHDRAWING.  BY THUS
CANCELLING FOR THE PURPOSE THE POWER OF EMINENT DOMAIN, IT HOLDS AS A
MATTER OF LAW THAT THE PROJECT WAS NOT FEASIBLE TO EXECUTE AND THAT THE
LANDS ASSEMBLED FOR POWER PURPOSES, ADMITTEDLY PHYSICALLY ADAPTABLE TO
THE USE AND TAKEN BY THE GOVERNMENT FOR THAT PURPOSE, HAVE NO POWER
UTILIZATION VALUE.  THIS SEEMS TO US NOT EASILY RECONCILED WITH THE
RESPECT DUE TO LOCAL LAW IN A MATTER OF THE KIND. 

DETERMINATION OF THE VALUE OF PROPERTY, PARTICULARLY AS AFFECTED BY A
PROSPECTIVE USE, ALWAYS INVOLVES SOME ELEMENT OF PROPHECY AND SOME
ESTIMATION OF PROBABILITIES.  NO COURT THAT WE KNOW OF HAS EVER
PROPOSED, AND WE DO NOT PROPOSE, TO VALUE THE POWER OF EMINENT DOMAIN
EITHER SEPARATELY OR AS AN INGREDIENT OF PROPERTY TAKEN.  ITS EXISTENCE
SHOULD BE CONSIDERED ONLY FOR THE PURPOSE OF DETERMINING THE MOST
ADVANTAGEOUS PROBABLE USEFULNESS OF THE PROPERTY AS IT AFFECTS ITS
VALUE.  THE LEGAL PRINCIPLES GOVERNING THE SOLUTION OF THE FACT
QUESTIONS ARE LAID DOWN IN OLSON V. UNITED STATES, 292 U.S. 246.  OF
COURSE ANY UNCERTAINTY OR LIMITATION AS TO THE RIGHT TO CONDEMN
PROPERTY OR EVIDENCE OF PROBABLE IMPAIRMENT, FORFEITURE, OR WITHDRAWAL
OF IT WOULD BE WEIGHED WITH OTHER EVIDENCE IN ARRIVING AT A JUDGMENT AS
TO THE FEASIBILITY OF THE PROJECT AND VALUE OF THE PROPERTY.  THIS
COURT HAS SAID THAT A POSSIBILITY OF EXERCISE BY A GOVERNING BODY OF
ITS POWER TO MAKE CHANGES AFFECTING VALUES IS A PROPER SUBJECT FOR
CONSIDERATION IN FIXING VALUES.  REICHELDERFER V. QUINN, 287 U.S. 315,
323.  BUT NEVER UNTIL NOW HAS IT HELD THAT THE LAW REQUIRES PRESENT
VALUES TO BE DETERMINED AS IF LEGALLY POSSIBLE, BUT FACTUALLY
IMPROBABLE, CHANGES HAVE ALREADY TAKEN PLACE. 

FEW PROPERTIES ARE SO IMMUNE FROM THE EFFECTS OF GOVERNMENTAL
AUTHORITY THAT SOME ACTION MAY NOT BE ENVISIONED WHICH WOULD DEVALUE
THEM.  ONE OF THE ITEMS TAKEN BY THE FEDERAL GOVERNMENT IN THIS CASE
FROM RESPONDENT AND OUT OF CONTROL OF THE STATE WAS A GOING CONCERN, AN
ELECTRIC GENERATING PLANT AND DISTRIBUTING SYSTEM.  SINCE BOTH PARTIES
ACCEPTED THE AWARD MADE FOR THIS PLANT IT IS NO LONGER AN ISSUE, BUT IS
ILLUSTRATIVE OF THE LEGAL PROBLEM RAISED BY THE COURT'S OPINION. 
DOUBTLESS THE STATE GOVERNMENT HAD POWER TO MAKE MANY INNOVATIONS
DETRIMENTAL TO ITS SUCCESS AND TO IMPOSE BURDENS THAT WOULD DETRACT
FROM ITS VALUE AND PERHAPS HAD RESERVED POWERS TO ANNUL ITS CORPORATE
OR SPECIAL FRANCHISES.  BUT WE WOULD NOT SUPPOSE THAT SUCH HYPOTHETICAL
DESTRUCTION OF PROPERTY VALUES COULD BE INVOKED TO MINIMIZE
COMPENSATION PAYABLE ON A TAKING ANY MORE THAN HYPOTHETICAL ACCRETIONS
TO ITS RIGHTS THROUGH STATE ACTION, POSSIBLE BUT NEVER ACCOMPLISHED,
COULD INCREASE SUCH COMPENSATION.  IN MANY CASES THE BENEFICIAL USE AND
HENCE THE VALUE OF ABUTTING PROPERTY MAY BE DECREASED IF PUBLIC
AUTHORITY CLOSES OR OBSTRUCTS A PUBLIC STREET OR CANAL, OR CHANGES THE
GRADE OF A STREET, OR THE LOCATION OF A COUNTY SEAT.  FN4  BUT IN ALL
SUCH CASES THE COMPENSATION PAYABLE SHOULD BE THE VALUE OF THE PROPERTY
AT THE TIME OF TAKING, ALLOWING FOR ANY INFLUENCE THAT THESE
CONTINGENCIES MIGHT EXERT, WHICH WOULD DEPEND UPON THEIR PROBABILITY. 

NO PREVIOUS DECISION OF THIS COURT SUPPORTS OR AUTHORIZES DISREGARD
OF A PRESENTLY EXISTING STATE RIGHT OF EMINENT DOMAIN IN A FEDERAL
TAKING OF PROPERTY.  IN MCGOVERN V. NEW YORK, 229 U.S. 363, AND NEW
YORK V. SAGE, 239 U.S. 57, THE CONDEMNATION WAS BY AN AGENCY OF THE
STATE AND THE CONDEMNEES DID NOT HAVE AND SHOWED NO PROBABILITY OF
OBTAINING SUCH POWER FROM THE STATE. 

EVEN LESS RELEVANT TO THE QUESTION NOW BEFORE US IS SEARS V. AKRON,
246 U.S. 242.  IT WAS NOT A CONDEMNATION CASE AT ALL BUT A SUIT IN
EQUITY TO ENJOIN THE CITY FROM CONSTRUCTION OF A DAM AND RESERVOIR AND
DIVERSION OF RIVER WATER.  THE CITY DID NOT PROPOSE TO TAKE ANY
PROPERTY OF THE COMPANY THROUGH WHICH PLAINTIFF AS A MORTGAGE CREDITOR
DERIVED ANY RIGHTS HE ASSERTED.  IN FACT THE COMPANY DID NOT OWN ANY
PROPERTY INCLUDED IN THE PROJECT, ALTHOUGH SHORTLY BEFORE COMMENCEMENT
OF THE SUIT, BUT AFTER THE CITY'S DEVELOPMENT WAS PRACTICALLY
COMPLETED, IT ACQUIRED TWO SMALL PARCELS SOME DISTANCE BELOW THE CITY'S
DAM.  BUT THE COMPANY'S CHARTER GAVE IT A RIGHT OF EMINENT DOMAIN AND,
ALTHOUGH IT HAD TAKEN NO STEP TO DO SO, IT CLAIMED THE RIGHT TO
EXPROPRIATE THE SAME PROPERTY THE CITY WAS TAKING.  IT SOUGHT TO ENJOIN
THE CITY UPON THE GROUND THAT ITS UNEXERCISED RIGHT TO TAKE THIS
PROPERTY WAS AN INDEFEASIBLE PROPERTY RIGHT WHICH WAS BEING DEFEATED
AND RENDERED VALUELESS BECAUSE THE CITY WAS AHEAD OF IT IN PREEMPTING
PROPERTIES WHICH THE COMPANY MIGHT WANT TO ACQUIRE UNDER ITS POWER. 
THE STATE OF OHIO HAD RETAINED POWER TO "REVOKE ANY SUCH RIGHT TO
APPROPRIATE PROPERTY UNTIL IT HAD BEEN ACTED UPON BY ACQUIRING THE
PROPERTY AUTHORIZED TO BE TAKEN."  ID. AT 250.  THE STATE OF COURSE HAD
REVOKED THE POWER TO THE EXTENT THAT IT HAD AUTHORIZED THE CITY, ITS
OWN INSTRUMENTALITY, TO TAKE THE PROPERTY.  BUT JUSTICE BRANDEIS
POINTED OUT THAT "NOR ARE WE CALLED UPON TO DETERMINE TO WHAT EXTENT
THE COMMENCEMENT OF THE ACQUISITION OF NEEDED PROPERTY IN PREPARATION
FOR THE POWER DEVELOPMENT, OR EVEN ACTUAL COMMENCEMENT OF CONSTRUCTION,
WOULD HAVE VESTED IN THE COMPANY THE RIGHT TO COMPLETE THE
DEVELOPMENT."  IBID.  THE DECISION IS NOW RELIED UPON TO ESTABLISH THE
POINT IT EXPRESSLY RESERVED.  MOREOVER, THE OHIO COMPANY HAD TRIED TO
USE ITS POWER OF CONDEMNATION, AND OHIO COURTS HAD HELD ITS CHARTER DID
NOT AUTHORIZE IT TO TAKE LANDS ESSENTIAL TO ITS PROJECT.  CUYAHOGA
RIVER POWER CO. V. NORTHERN REALTY CO., 244 U.S. 300.  IN THE CASE NOW
BEFORE US THE NORTH CAROLINA COURTS HAD HELD THE POWER GIVEN BY THAT
STATE TO THIS COMPANY WAS COMPLETE AND PRIOR TO EVERY OTHER AT THE VERY
LOCATION INVOLVED HERE.  FN5 

THESE CASES DO NOT DECIDE WHAT WOULD HAVE BEEN RESPONDENT'S RIGHTS IF
NORTH CAROLINA, RATHER THAN THE UNITED STATES, HAD INSTITUTED THE
PRESENT CONDEMNATION PROCEEDINGS, THEREBY EXPRESSING HER UNWILLINGNESS
TO HAVE THE RESPONDENT CARRY THE PROJECT THROUGH TO COMPLETION.  THEY
ARE WHOLLY INAPPOSITE TO THE QUESTION WE ARE CALLED UPON TO DECIDE,
WHICH IS WHETHER NORTH CAROLINA'S EXPRESSED AND UNDOUBTED WILLINGNESS
THAT THE RESPONDENT SHOULD DO SO, AND TO THAT END SHOULD EXERCISE HER
SOVEREIGN POWER OF EMINENT DOMAIN, MAY BE CONSIDERED ALONG WITH ALL
OTHER FACTS BEARING UPON THE QUESTION OF THE PROSPECTS OF COMPLETION. 

THE GOVERNMENT AND THE COURT HAVE TAKEN A CONTRARY POSITION TO THE
ONE NOW ANNOUNCED WHEN THE SHOE WAS ON THE OTHER FOOT.  IN UNITED
STATES V. RIVER ROUGE CO., 269 U.S. 411, THE GOVERNMENT SOUGHT TO
DEDUCT FROM THE VALUE OF PROPERTY CONDEMNED THE BENEFITS CONFERRED BY
THE IMPROVEMENT UPON THE SEVERED PROPERTY.  THE OWNER DENIED THAT THESE
BENEFITS SHOULD BE CONSIDERED BECAUSE HIS ENJOYMENT OF THEM WOULD BE
TERMINABLE BY THE GOVERNMENT AT ANY TIME.  THE COURT SUSTAINED CREDIT
FOR THE BENEFITS, POINTING OUT THAT "THERE WAS NOTHING IN THE EVIDENCE
INDICATING ANY PROBALITY THAT THE GOVERNMENT WOULD AT ANY TIME ABROGATE
OR CURTAIL THIS RIGHT IN ANY RESPECT."  ID. AT 420. 

WE THINK THE SAME RULE SHOULD APPLY AGAINST AS FOR THE GOVERNMENT,
AND THAT THE PROPERTY IN QUESTION WAS ENTITLED TO THE BENEFITS AT THE
TIME BEING EXTENDED BY STATE AUTHORITY IN THE ABSENCE OF EVIDENCE OF
PROBABILITY THAT THEY WOULD BE ABROGATED OR CURTAILED.  WE DO NOT THINK
THAT BECAUSE THE POWER OF EMINENT DOMAIN MAY HAVE BEEN REVOCABLE BY THE
STATE IT FOLLOWS AS MATTER OF LAW THAT IT MUST BE TREATED AS
NONEXISTENT, AND WE DISSENT FROM A REVERSAL BASED ON SUCH GROUNDS. 

FN1  TYPICAL PROVISIONS FROM STATE CONSTITUTIONS ARE: 

CALIFORNIA, ARTICLE XIV, SEC. 3:  "  ...  RIPARIAN RIGHTS IN A STREAM
OR WATER COURSE ATTACH TO, BUT TO NO MORE THAN SO MUCH OF THE FLOW
THEREOF AS MAY BE REQUIRED OR USED CONSISTENTLY WITH THIS SECTION, FOR
THE PURPOSES FOR WHICH SUCH LANDS ARE, OR MAY BE MADE ADAPTABLE, IN
VIEW OF SUCH REASONABLE AND BENEFICIAL USES; PROVIDED, HOWEVER, THAT
NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS DEPRIVING ANY RIPARIAN
OWNER OF THE REASONABLE USE OF WATER OF THE STREAM TO WHICH HIS LAND IS
RIPARIAN UNDER REASONABLE METHODS OF DIVERSION AND USE, OR OF DEPRIVING
ANY APPROPRIATOR OF WATER TO WHICH HE IS LAWFULLY ENTITLED.  ...  " 

COLORADO, ARTICLE XVI, SEC. 6:  "THE RIGHT TO DIVERT THE
UNAPPROPRIATED WATERS OF ANY NATURAL STREAM TO BENEFICIAL USES SHALL
NEVER BE DENIED.  PRIORITY OF APPROPRIATION SHALL GIVE THE BETTER RIGHT
AS BETWEEN THOSE USING THE WATER FOR THE SAME PURPOSE; BUT WHEN THE OF
ANY NATURAL STREAM ARE NOT SUFFICIENT FOR THE SERVICE OF ALL THOSE
DESIRING THE USE OF THE SAME, THOSE USING THE WATER FOR DOMESTIC
PURPOSES SHALL HAVE THE PREFERENCE OVER THOSE CLAIMING FOR ANY OTHER
PURPOSE, AND THOSE USING THE WATER FOR AGRICULTURAL PURPOSES SHALL HAVE
PREFERENCE OVER THOSE USING THE SAME FOR MANUFACTURING PURPOSES." 

NORTH DAKOTA, ARTICLE XVII, SEC. 210:  "ALL FLOWING STREAMS AND
NATURAL WATER COURSES SHALL FOREVER REMAIN THE PROPERTY OF THE STATE
FOR MINING, IRRIGATING AND MANUFACTURING PURPOSES." 

RHODE ISLAND, ARTICLE I, SEC. 17:  "THE PEOPLE SHALL CONTINUE TO
ENJOY AND FREELY EXERCISE ALL THE RIGHTS OF FISHERY, AND THE PRIVILEGES
OF THE SHORE, TO WHICH THEY HAVE BEEN HERETOFORE ENTITLED UNDER THE
CHARTER AND USAGES OF THIS STATE.  BUT NO NEW RIGHT IS INTENDED TO BE
GRANTED, NOR ANY EXISTING RIGHT IMPAIRED, BY THIS DECLARATION." 

UTAH, ARTICLE XVII, SEC. 1:  "ALL EXISTING RIGHTS TO THE USE OF ANY
OF THE WATERS IN THIS STATE FOR ANY USEFUL OR BENEFICIAL PURPOSE, ARE
HEREBY RECOGNIZED AND CONFIRMED." 

WASHINGTON, ARTICLE XVII, SEC. 1:  "THE STATE OF WASHINGTON ASSERTS
ITS OWNERSHIP TO THE BEDS AND SHORES OF ALL NAVIGABLE WATERS IN THE
STATE UP TO AND INCLUDING THE LINE OF ORDINARY HIGH TIDE IN WATERS
WHERE THE TIDE EBBS AND FLOWS, AND UP TO AND INCLUDING THE LINE OF
ORDINARY HIGH WATER WITHIN THE BANKS OF ALL NAVIGABLE RIVERS AND LAKES:
PROVIDED, THAT THIS SECTION SHALL NOT BE CONSTRUED SO AS TO DEBAR ANY
PERSON FROM ASSERTING HIS CLAIM TO VESTED RIGHTS IN THE COURTS OF THE
STATE." 

ARTICLE XXI, SEC. 1:  "THE USE OF THE WATERS OF THIS STATE FOR
IRRIGATION, MINING, AND MANUFACTURING PURPOSES SHALL BE DEEMED A PUBLIC
USE." 

WISCONSIN, ARTICLE XXI, SEC. 1:  "THE STATE SHALL HAVE CONCURRENT
JURISDICTION ON ALL RIVERS AND LAKES BORDERING ON THIS STATE SO FAR AS
SUCH RIVERS OR LAKES SHALL FORM A COMMON BOUNDARY TO THE STATE AND ANY
OTHER STATE OR TERRITORY NOW OR HEREAFTER TO BE FORMED, AND BOUNDED BY
THE SAME; AND THE RIVER MISSISSIPPI AND THE NAVIGABLE WATERS LEADING
INTO THE MISSISSIPPI AND ST. LAWRENCE, AND THE CARRYING PLACES BETWEEN
THE SAME, SHALL BE COMMON HIGHWAYS AND FOREVER FREE, AS WELL TO THE
INHABITANTS OF THE STATE AS TO THE CITIZENS OF THE UNITED STATES,
WITHOUT ANY TAX, IMPOST OR DUTY THEREFOR." 

SEE ALSO KAUKAUNA WATER POWER CO. V. GREEN BAY CANAL CO., 142 U.S.
254, 272; CF. INTERNATIONAL PAPER CO. V. UNITED STATES, 282 U.S. 399. 

FN2  PRIVATE LAWS OF NORTH CAROLINA, 1909, C. 76, P 185. 

FN3  CAROLINA-TENNESSEE POWER CO. V. HIAWASSEE RIVER POWER CO., 171
N.C. 248, 88 S.E. 349(1916), 175 N.C. 668, 96 S.E. 99(1918), 186 N.C.
179, 119 S.E. 213(1923), 188 N.C. 128, 123 S.E. 312(1924); HIAWASSEE
RIVER POWER CO. V. CAROLINA-TENNESSEE POWER CO., 252 U.S. 341(1920),
267 U.S. 586(1925). 

FN4  SEE EXAMPLES AND CITATION OF CASES IN REICHELDERFER V. QUINN,
SUPRA, AT 319. 

THE VALIDITY OF THE PRINCIPLE ADOPTED BY THE MAJORITY OPINION MAY BE
TESTED AGAINST HYPOTHETICAL CASES SUCH AS THE FOLLOWING: 

1.  O OWNS A DOCK PROJECTING INTO A NAVIGABLE STREAM IN STATE S. THE
FEDERAL GOVERNMENT MAY DESTROY IT OR REQUIRE ITS REMOVAL WITHOUT
PAYMENT OF COMPENSATION (UNITED STATES V. CHICAGO, M., ST. P. & P. R.
CO., 312 U.S. 592), BUT IT DOES NOT APPEAR LIKELY THAT IT WILL DO SO,
AND THE DOCK IS A COMMERCIALLY VALUABLE PROPERTY.  S ACQUIRES THE DOCK
BY CONDEMNATION, AND SEEKS TO AVOID PAYMENT BY RELYING UPON THE POWER
OF THE FEDERAL GOVERNMENT TO DESTROY ITS VALUE. 

2.  O OWNS A DISTILLERY IN STATE S. S ACQUIRES IT BY CONDEMNATION,
AND RESISTS PAYMENT BY ASSERTING THE EXISTENCE OF THE FEDERAL
GOVERNMENT'S POWER TO ENACT A PROHIBITION LAW AND THEREBY DESTROY OR
DIMINISH THE VALUE OF THE DISTILLERY WITHOUT THE PAYMENT OF
COMPENSATION (HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146). 

3.  O OWNS AN OPTION UPON LAND OWNED BY STATE S. THE OPTION IS
REVOCABLE AT THE WILL OF S, BUT REVOCATION SEEMS UNLIKELY, AND THE
OPTION HAS COMMERCIAL VALUE.  THE FEDERAL GOVERNMENT ACQUIRES IT BY
CONDEMNATION, BUT RESISTS PAYMENT BY RELYING UPON S'S POWER OF
REVOCATION. 

THESE CASES CAN BE FURTHER COMPLICATED BY SUPPOSING THAT THE
CONDEMNATION IS NOT BY THE SOVEREIGN ITSELF, BUT BY A PRIVATE
CORPORATION VESTED BY IT WITH THE POWER OF EMINENT DOMAIN. 

FN5  SEE FOOTNOTE 3, SUPRA.
..END :


















LOCKERTY V. PHILLIPS, 319 U.S. 182 


NO. 934.  ARGUED MAY 3, 1943.  - DECIDED MAY 10, 1943.  - 49 F.SUPP. 
513, AFFIRMED. 


1.  THE EMERGENCY PRICE CONTROL ACT OF 1942 SETS UP A PROCEDURE
WHEREBY ANY PERSON SUBJECT TO ANY REGULATION OR ORDER PROMULGATED UNDER
THE ACT MAY ON "PROTEST" OF THE REGULATION OR ORDER SECURE ITS REVIEW
BY THE ADMINISTRATOR; AND, IF THE PROTEST IS DENIED, THE ACT CONFERS ON
THE EMERGENCY COURT (AND ON THE SUPREME COURT UPON REVIEW OF DECISIONS
OF THE EMERGENCY COURT) EQUITY JURISDICTION TO RESTRAIN THE ENFORCEMENT
OF REGULATIONS OR PRICE ORDERS UNDER THAT ACT, AND WITHDRAWS THAT
JURISDICTION FROM EVERY OTHER COURT, STATE OR FEDERAL.  P. 186. 

2.  THE CONSTITUTION DOES NOT REQUIRE CONGRESS TO CONFER EQUITY
JURISDICTION ON ANY PARTICULAR INFERIOR FEDERAL COURT.  P. 187. 

3. CONGRESS HAD POWER TO RESTRICT THE EQUITY JURISDICTION TO RESTRAIN
ENFORCEMENT OF THE EMERGENCY PRICE CONTROL ACT, OR OF REGULATIONS UNDER
IT, TO THE EMERGENCY COURT, AND, UPON REVIEW OF ITS DECISIONS, TO THIS
COURT, AND TO REQUIRE THAT A PLAINTIFF SEEKING SUCH EQUITABLE RELIEF
RESORT TO THE EMERGENCY COURT ONLY AFTER PURSUING THE PRESCRIBED
ADMINISTRATIVE PROCEDURE.  P. 188. 

4.  THE EMERGENCY PRICE CONTROL ACT, SEC. 204(D), IN PROVIDING THAT
"NO COURT, FEDERAL, STATE, OR TERRITORIAL, SHALL HAVE JURISDICTION OR
POWER TO  ...  RESTRAIN, ENJOIN, OR SET ASIDE  ...  ANY PROVISION OF
THIS ACT," IS NOT OPEN TO THE OBJECTION THAT IT WITHHOLDS FROM ALL
COURTS AUTHORITY TO PASS UPON THE CONSTITUTIONALITY OF ANY PROVISION OF
THE ACT OR OF ANY ORDER OR REGULATION UNDER IT.  THE ACT ITSELF, SEC.
204, SAVES TO THE EMERGENCY COURT, AND, UPON REVIEW OF ITS DECISIONS,
TO THIS COURT, AUTHORITY TO DETERMINE WHETHER ANY REGULATION, ORDER, OR
PRICE SCHEDULE PROMULGATED UNDER IT IS "NOT IN ACCORDANCE WITH LAW,"
AND THIS PERMITS THAT THE CONSTITUTIONAL VALIDITY OF THE ACT, AND OF
ORDERS AND REGULATIONS UNDER IT, BE SO DETERMINED.  P. 188. 

5.  ASSUMING THAT REVIEW IN THE EMERGENCY COURT IS INADEQUATE TO
PROTECT CONSTITUTIONAL RIGHTS BECAUSE SEC. 204(C) PROHIBITS ALL
INTERLOCUTORY RELIEF BY THAT COURT, THE SEPARABILITY CLAUSE OF SEC. 303
WOULD REQUIRE THAT EFFECT BE GIVEN TO THE OTHER PROVISIONS OF SEC. 204,
INCLUDING THAT WHICH WITHHOLDS FROM THE DISTRICT COURTS AUTHORITY TO
ENJOIN ENFORCEMENT OF THE ACT.  P. 189. 

LOCKERTY ET AL. V. PHILLIPS, UNITED STATES ATTORNEY. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEW JERSEY. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH
DISMISSED FOR WANT OF JURISDICTION AN APPEAL SEEKING AN INJUNCTION
AGAINST ENFORCEMENT OF PRICE REGULATIONS PRESCRIBED UNDER THE EMERGENCY
PRICE CONTROL ACT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR OUR DECISION IS WHETHER THE JURISDICTION OF THE
DISTRICT COURT BELOW TO ENJOIN THE ENFORCEMENT OF PRICE REGULATIONS
PRESCRIBED BY THE ADMINISTRATOR UNDER THE EMERGENCY PRICE CONTROL ACT
OF 1942, 56 STAT. 23, WAS VALIDLY WITHDRAWN BY SEC. 204(D) OF THE ACT. 
APPELLANTS BROUGHT THIS SUIT IN THE DISTRICT COURT FOR THE DISTRICT OF
NEW JERSEY FOR AN INJUNCTION RESTRAINING APPELLEE, THE UNITED STATES
ATTORNEY FOR THAT DISTRICT, FROM THE PROSECUTION OF PENDING AND
PROSPECTIVE CRIMINAL PROCEEDINGS AGAINST APPELLANTS FOR VIOLATION OF
SECS. 4(A) AND 205(B) OF THE ACT, AND OF MAXIMUM PRICE REGULATION NO.
169.  IN VIEW OF THE PROVISIONS OF SEC. 204(D) OF THE ACT, THE DISTRICT
COURT OF THREE JUDGES, 28 U.S.C. SEC. 380A, DISMISSED THE SUIT FOR WANT
OF JURISDICTION TO ENTERTAIN IT. 

THE AMENDED BILL OF COMPLAINT ALLEGES THAT APPELLANTS ARE ESTABLISHED
MERCHANTS OWNING VALUABLE WHOLESALE MEAT BUSINESSES, IN THE COURSE OF
WHICH THEY PURCHASE MEAT FROM PACKERS AND SELL IT AT WHOLESALE TO
RETAIL DEALERS; THAT MAXIMUM PRICE REGULATION NO. 169, PROMULGATED BY
THE PRICE ADMINISTRATOR UNDER THE PURPORTED AUTHORITY OF SEC. 2(A) OF
THE ACT, AS ORIGINALLY ISSUED AND AS REVISED, FIXED MAXIMUM WHOLESALE
PRICES FOR SPECIFIED CUTS OF BEEF; THAT IN FIXING SUCH PRICES THE
ADMINISTRATOR HAD FAILED TO GIVE DUE CONSIDERATION TO THE VARIOUS
FACTORS AFFECTING THE COST OF PRODUCTION AND DISTRIBUTION OF MEAT IN
THE INDUSTRY AS A WHOLE; THAT THE ADMINISTRATOR HAD FAILED TO FIX OR
REGULATE THE PRICE OF LIVESTOCK; THAT THE CONDITIONS IN THE INDUSTRY -
INCLUDING THE QUANTITY OF MEAT AVAILABLE TO PACKERS FOR DISTRIBUTION TO
WHOLESALERS, THE PACKERS' EXPECTATION OF PROFIT, AND THE EFFECT OF
THESE CONDITIONS UPON THE PRICES OF MEAT SOLD BY PACKERS TO WHOLESALERS
- ARE SUCH THAT APPELLANTS ARE AND WILL BE UNABLE TO OBTAIN A SUPPLY OF
MEAT FROM PACKERS WHICH THEY CAN RESELL TO RETAIL DEALERS WITHIN THE
PRICES FIXED BY REGULATION NO. 169; THAT ENFORCEMENT OF THE REGULATION
WILL PRECLUDE APPELLANTS' CONTINUANCE IN BUSINESS AS MEAT WHOLESALERS;
THAT THE ACT AS THUS APPLIED TO APPELLANTS IS A DENIAL OF DUE PROCESS
IN VIOLATION OF THE FIFTH AMENDMENT OF THE CONSTITUTION, AND INVOLVES
AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER TO THE
ADMINISTRATOR; THAT APPELLEE THREATENS TO PROSECUTE APPELLANTS FOR EACH
SALE OF MEAT AT A PRICE GREATER THAN THAT FIXED BY THE REGULATION, AND
TO SUBJECT THEM TO THE FINE AND IMPRISONMENT PRESCRIBED BY SECS. 4 AND
205(B) OF THE ACT FOR VIOLATIONS OF THE ACT OR OF PRICE REGULATIONS
PRESCRIBED BY THE ADMINISTRATOR UNDER THE ACT; AND THAT SUCH
ENFORCEMENT BY REPEATED PROSECUTIONS OF APPELLANTS WILL IRREPARABLY
INJURE THEM IN THEIR BUSINESS AND PROPERTY. 

PROVISION OF ANY REGULATION, ORDER OR PRICE SCHEDULE PROMULGATED UNDER
THE ACT MAY WITHIN SIXTY DAYS "FILE A PROTEST SPECIFICALLY SETTING
FORTH OBJECTIONS TO ANY SUCH PROVISION AND AFFIDAVITS OR OTHER WRITTEN
EVIDENCE IN SUPPORT OF SUCH OBJECTIONS."  HE MAY ALSO PROTEST LATER ON
GROUNDS ARISING AFTER THE EXPIRATION OF THE ORIGINAL SIXTY DAYS.  THE
SUBSECTION DIRECTS THAT WITHIN A SPECIFIED TIME "THE ADMINISTRATOR
SHALL EITHER GRANT OR DENY SUCH PROTEST IN WHOLE OR IN PART, NOTICE
SUCH PROTEST FOR HEARING, OR PROVIDE AN OPPORTUNITY TO PRESENT FURTHER
EVIDENCE IN CONNECTION THEREWITH.  IN THE EVENT THAT THE ADMINISTRATOR
DENIES ANY SUCH PROTEST IN WHOLE OR IN PART, HE SHALL INFORM THE
PROTESTANT OF THE GROUNDS UPON WHICH SUCH DECISION IS BASED, AND OF ANY
ECONOMIC DATA AND OTHER FACTS OF WHICH THE ADMINISTRATOR HAS TAKEN
OFFICIAL NOTICE." 

BY SEC. 204(A), "ANY PERSON WHO IS AGGRIEVED BY THE DENIAL OR PARTIAL
DENIAL OF HIS PROTEST MAY, WITHIN THIRTY DAYS AFTER SUCH DENIAL, FILE A
COMPLAINT WITH THE EMERGENCY COURT OF APPEALS, CREATED PURSUANT TO
SUBSECTION (C), SPECIFYING HIS OBJECTIONS AND PRAYING THAT THE
REGULATION, ORDER, OR PRICE SCHEDULE PROTESTED BE ENJOINED OR SET ASIDE
IN WHOLE OR IN PART."  SUBSECTION (B) PROVIDES THAT NO REGULATION,
ORDER, OR PRICE SCHEDULE, SHALL BE ENJOINED "UNLESS THE COMPLAINANT
ESTABLISHES TO THE SATISFACTION OF THE COURT THAT THE REGULATION,
ORDER, OR PRICE SCHEDULE IS NOT IN ACCORDANCE WITH LAW, OR IS ARBITRARY
OR CAPRICIOUS."  UNDER SUBSECTIONS (B) AND (D), DECISIONS OF THE
EMERGENCY COURT MAY, BY WRIT OF CERTIORARI, BE BROUGHT FOR REVIEW TO
THE SUPREME COURT, WHICH IS REQUIRED TO ADVANCE THE CAUSE ON ITS DOCKET
AND TO EXPEDITE THE DISPOSITION OF IT. 

ALTHOUGH BY FOLLOWING THE PROCEDURE PRESCRIBED BY THESE PROVISIONS OF
THE ACT APPELLANTS COULD HAVE RAISED AND OBTAINED REVIEW OF THE
QUESTIONS PRESENTED BY THEIR BILL OF COMPLAINT, THEY DID NOT PROTEST
THE PRICE REGULATION WHICH THEY CHALLENGE AND THEY TOOK NO PROCEEDINGS
FOR REVIEW OF IT BY THE EMERGENCY COURT.  APPELLANTS ARE THUS SEEKING
THE AID OF THE DISTRICT COURT TO RESTRAIN THE ENFORCEMENT OF AN
ADMINISTRATIVE ORDER WITHOUT PURSUING THE ADMINISTRATIVE REMEDY
PROVIDED BY THE STATUTE (CF. ILLINOIS COMMERCE COMMISSION V. THOMSON,
318 U.S. 675, 686) AND WITHOUT RECOURSE TO THE JUDICIAL REVIEW BY THE
EMERGENCY COURT OF APPEALS AND BY THIS COURT WHICH THE STATUTE
AFFORDS. 

MOREOVER THE STATUTE VESTS JURISDICTION TO GRANT EQUITABLE RELIEF
EXCLUSIVELY IN THE EMERGENCY COURT AND IN THIS COURT.  SECTION 204(D)
DECLARES:  "THE EMERGENCY COURT OF APPEALS, AND THE SUPREME COURT UPON
REVIEW OF JUDGMENTS AND ORDERS OF THE EMERGENCY COURT OF APPEALS, SHALL
HAVE EXCLUSIVE JURISDICTION TO DETERMINE THE VALIDITY OF ANY REGULATION
OR ORDER ISSUED UNDER SECTION 2, OF ANY PRICE SCHEDULE EFFECTIVE IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 206, AND OF ANY PROVISION OF
ANY SUCH REGULATION, ORDER, OR PRICE SCHEDULE.  EXCEPT AS PROVIDED IN
THIS SECTION, NO COURT, FEDERAL, STATE, OR TERRITORIAL, SHALL HAVE
JURISDICTION OR POWER TO CONSIDER THE VALIDITY OF ANY SUCH REGULATION,
ORDER, OR PRICE SCHEDULE, OR TO STAY, RESTRAIN, ENJOIN, OR SET ASIDE,
IN WHOLE OR IN PART, ANY PROVISION OF THIS ACT AUTHORIZING THE ISSUANCE
OF SUCH REGULATIONS OR ORDERS, OR MAKING EFFECTIVE ANY SUCH PRICE
SCHEDULE, OR ANY PROVISION OF ANY SUCH REGULATION, ORDER, OR PRICE
SCHEDULE, OR TO RESTRAIN OR ENJOIN THE ENFORCEMENT OF ANY SUCH
PROVISION." 

BY THIS STATUTE CONGRESS HAS SEEN FIT TO CONFER ON THE EMERGENCY
COURT (AND ON THE SUPREME COURT UPON REVIEW OF DECISIONS OF THE
EMERGENCY COURT) EQUITY JURISDICTION TO RESTRAIN THE ENFORCEMENT OF
PRICE ORDERS UNDER THE EMERGENCY PRICE CONTROL ACT.  AT THE SAME TIME
IT HAS WITHDRAWN THAT JURISDICTION FROM EVERY OTHER FEDERAL AND STATE
COURT.  THERE IS NOTHING IN THE CONSTITUTION WHICH REQUIRES CONGRESS TO
CONFER EQUITY JURISDICTION ON ANY PARTICULAR INFERIOR FEDERAL COURT. 
ALL FEDERAL COURTS, OTHER THAN THE SUPREME COURT, DERIVE THEIR
JURISDICTION WHOLLY FROM THE EXERCISE OF THE AUTHORITY TO "ORDAIN AND
ESTABLISH" INFERIOR COURTS, CONFERRED ON CONGRESS BY ARTICLE III, SEC.
1, OF THE CONSTITUTION.  ARTICLE III LEFT CONGRESS FREE TO ESTABLISH
INFERIOR FEDERAL COURTS OR NOT AS IT THOUGHT APPROPRIATE.  IT COULD
HAVE DECLINED TO CREATE ANY SUCH COURTS, LEAVING SUITORS TO THE
REMEDIES AFFORDED BY STATE COURTS, WITH SUCH APPELLATE REVIEW BY THIS
COURT AS CONGRESS MIGHT PRESCRIBE.  KLINE V. BURKE CONSTRUCTION CO.,
260 U.S. 226, 234, AND CASES CITED; MCINTIRE V. WOOD, 7 CRANCH 504,
506.  THE CONGRESSIONAL POWER TO ORDAIN AND ESTABLISH INFERIOR COURTS
INCLUDES THE POWER "OF INVESTING THEM WITH JURISDICTION EITHER LIMITED,
CONCURRENT, OR EXCLUSIVE, AND OF WITHHOLDING JURISDICTION FROM THEM IN
THE EXACT DEGREES AND CHARACTER WHICH TO CONGRESS MAY SEEM PROPER FOR
THE PUBLIC GOOD."  CARY V. CURTIS, 3 HOW.  236, 245; LAUF V. E.G.
SHINNER & CO., 303 U.S. 323, 330; HALLOWELL V. COMMONS, 239 U.S. 506,
509; SMALLWOOD V. GALLARDO, 275 U.S. 56; TOUCEY V. NEW YORK LIFE INS.
CO., 314 U.S. 118, 129.  SEE ALSO UNITED STATES V. HUDSON AND GOODWIN,
7 CRANCH 32, 33; MAYOR V. COOPER, 6 WALL.  247, 252; STEVENSON V. FAIN,
195 U.S. 165 , 167; KENTUCKY V. POWERS, 201 U.S. 1, 24; CHICOT COUNTY
DIST. V. BAXTER BANK, 308 U.S. 371, 376.  IN THE LIGHT OF THE EXPLICIT
LANGUAGE OF THE CONSTITUTION AND OUR DECISIONS, IT IS PLAIN THAT
CONGRESS HAS POWER TO PROVIDE THAT THE EQUITY JURISDICTION TO RESTRAIN
ENFORCEMENT OF THE ACT, OR OF REGULATIONS PROMULGATED UNDER IT, BE
RESTRICTED TO THE EMERGENCY COURT, AND, UPON REVIEW OF ITS DECISIONS,
TO THIS COURT.  NOR CAN WE DOUBT THE AUTHORITY OF CONGRESS TO REQUIRE
THAT A PLAINTIFF SEEKING SUCH EQUITABLE RELIEF RESORT TO THE EMERGENCY
COURT ONLY AFTER PURSUING THE PRESCRIBED ADMINISTRATIVE PROCEDURE. 

APPELLANTS ARGUE THAT THE COMMAND OF SEC. 204(D) THAT "NO COURT,
FEDERAL, STATE, OR TERRITORIAL, SHALL HAVE JURISDICTION OR POWER TO
...  RESTRAIN, ENJOIN, OR SET ASIDE  ...  ANY PROVISION OF THIS ACT"
EXTENDS BEYOND THE MERE DENIAL OF EQUITABLE RELIEF BY WAY OF
INJUNCTION, AND WITHHOLDS FROM ALL COURTS AUTHORITY TO PASS UPON THE
CONSTITUTIONALITY OF ANY PROVISION OF THE ACT OR OF ANY ORDER OR
REGULATION UNDER IT.  THEY INSIST THAT THE PHRASE "SET ASIDE" IS TO BE
READ BROADLY, AS MEANING THAT NO COURT CAN DECLARE UNCONSTITUTIONAL ANY
SUCH PROVISION, AND THAT CONSEQUENTLY THE EFFECT OF THE STATUTE IS TO
DENY TO THOSE AGGRIEVED, BY STATUTE OR REGULATION, THEIR DAY IN COURT
TO CHALLENGE ITS CONSTITUTIONALITY.  BUT THE STATUTE EXPRESSLY EXCEPTS
FROM THIS COMMAND THOSE REMEDIES AFFORDED BY SEC. 204, INCLUDING THAT
OF SUBSECTION (B), WHICH GIVES TO COMPLAINANTS A RIGHT TO AN INJUNCTION
WHENEVER THEY ESTABLISH TO THE SATISFACTION OF THE EMERGENCY COURT THAT
THE REGULATION, ORDER, OR PRICE SCHEDULE IS "NOT IN ACCORDANCE WITH
LAW, OR IS ARBITRARY OR CAPRICIOUS."  A CONSTRUCTION OF THE STATUTE
WHICH WOULD DENY ALL OPPORTUNITY FOR JUDICIAL DETERMINATION OF AN
ASSERTED CONSTITUTIONAL RIGHT IS NOT TO BE FAVORED.  THE PRESENT ACT
HAS AT LEAST SAVED TO THE EMERGENCY COURT, AND, UPON REVIEW OF ITS
DECISIONS, TO THIS COURT, AUTHORITY TO DETERMINE WHETHER ANY
REGULATION, ORDER, OR PRICE SCHEDULE PROMULGATED UNDER THE ACT IS "NOT
IN ACCORDANCE WITH LAW, OR IS ARBITRARY OR CAPRICIOUS."  WE THINK IT
PLAIN THAT ORDERS AND REGULATIONS INVOLVING AN UNCONSTITUTIONAL
APPLICATION OF THE STATUTE ARE "NOT IN ACCORDANCE WITH LAW" WITHIN THE
MEANING OF THIS CLAUSE, AND THAT THE CONSTITUTIONAL VALIDITY OF THE
ACT, AND OF ORDERS AND REGULATIONS UNDER IT, MAY BE DETERMINED UPON THE
PRESCRIBED REVIEW IN THE EMERGENCY COURT. 

APPELLANTS ALSO CONTEND THAT THE REVIEW IN THE EMERGENCY COURT IS
INADEQUATE TO PROTECT THEIR CONSTITUTIONAL RIGHTS, AND THAT SEC. 204 IS
THEREFORE UNCONSTITUTIONAL, BECAUSE SEC. 204(C) PROHIBITS ALL
INTERLOCUTORY RELIEF BY THAT COURT.  WE NEED NOT PASS UPON THE
CONSTITUTIONALITY OF THIS RESTRICTION.  FOR IN ANY EVENT, THE
SEPARABILITY CLAUSE OF SEC. 303 OF THE ACT WOULD REQUIRE US TO GIVE
EFFECT TO THE OTHER PROVISIONS OF SEC. 204, INCLUDING THAT WITHHOLDING
FROM THE DISTRICT COURTS AUTHORITY TO ENJOIN ENFORCEMENT OF THE ACT - A
PROVISION WHICH AS WE HAVE SEEN IS SUBJECT TO NO UNCONSTITUTIONAL
INFIRMITY. 

SINCE APPELLANTS SEEK ONLY AN INJUNCTION WHICH THE DISTRICT COURT IS
WITHOUT AUTHORITY TO GIVE, THEIR BILL OF COMPLAINT WAS RIGHTLY
DISMISSED.  WE HAVE NO OCCASION TO DETERMINE NOW WHETHER, OR TO WHAT
EXTENT, APPELLANTS MAY CHALLENGE THE CONSTITUTIONALITY OF THE ACT OR
THE REGULATION IN COURTS OTHER THAN THE EMERGENCY COURT, EITHER BY WAY
OF DEFENSE TO A CRIMINAL PROSECUTION OR IN A CIVIL SUIT BROUGHT FOR
SOME OTHER PURPOSE THAN TO RESTRAIN ENFORCEMENT OF THE ACT OR
REGULATIONS ISSUED UNDER IT.  AFFIRMED. 
..END :












NAT. BROADCASTING CO. V. U.S., 319 U.S. 190 


NO. 554.  ARGUED FEBRUARY 10, 11, 1943.  - DECIDED MAY 10, 1943.  - 47
F.SUPP.  940, AFFIRMED. 


1.  THE REGULATORY POWERS OF THE FEDERAL COMMUNICATIONS COMMISSION ARE
NOT LIMITED TO THE ENGINEERING AND TECHNICAL ASPECTS OF RADIO
COMMUNICATION.  P. 215. 

2.  REGULATIONS ADOPTED BY THE FEDERAL COMMUNICATIONS COMMISSION, AS
"IN THE PUBLIC INTEREST," TOUCHING THE RELATIONS BETWEEN LICENSED
BROADCASTING STATIONS ON THE ONE HAND, AND NETWORK ORGANIZATIONS
FURNISHING PROGRAMS TO SUCH STATIONS ON THE OTHER HAND, ARE SUSTAINED
AS WITHIN THE POWERS CONFERRED UPON THE COMMISSION BY THE FEDERAL
COMMUNICATIONS ACT, VIZ.: 

(1)  A REGULATION PROVIDING THAT NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION HAVING ANY CONTRACT, ARRANGEMENT, OR
UNDERSTANDING WITH A NETWORK ORGANIZATION UNDER WHICH THE STATION IS
PREVENTED OR HINDERED FROM, OR PENALIZED FOR, BROADCASTING THE PROGRAMS
OF ANY OTHER NETWORK ORGANIZATION.  P. 198. 

(2)  A REGULATION PROVIDING THAT NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION HAVING ANY CONTRACT, ETC., WITH A NETWORK
ORGANIZATION WHICH PREVENTS OR HINDERS ANOTHER STATION SERVING
SUBSTANTIALLY THE SAME AREA FROM BROADCASTING THE NETWORK'S PROGRAMS
NOT TAKEN BY THE FORMER STATION, OR WHICH PREVENTS OR HINDERS ANOTHER
STATION SERVING A SUBSTANTIALLY DIFFERENT AREA FROM BROADCASTING ANY
PROGRAM OF THE NETWORK ORGANIZATION; BUT NOT PROHIBITING ANY CONTRACT
BETWEEN A STATION AND A NETWORK ORGANIZATION PURSUANT TO WHICH THE
STATION IS GRANTED THE FIRST CALL IN ITS PRIMARY SERVICE AREA UPON THE
PROGRAMS OF THE NETWORK ORGANIZATION.  P. 200. 

(3)  A REGULATION DECLARING THAT NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION HAVING ANY CONTRACT, ETC., WITH A NETWORK
ORGANIZATION WHICH PROVIDES FOR THE AFFILIATION OF THE STATION WITH THE
NETWORK ORGANIZATION FOR A PERIOD LONGER THAN TWO YEARS.  P. 201. 

(4)  A REGULATION PROVIDING THAT NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION WHICH OPTIONS FOR NETWORK PROGRAMS ANY TIME
SUBJECT TO CALL ON LESS THAN 56 DAYS' NOTICE, OR MORE TIME THAN A TOTAL
OF THREE HOURS WITHIN EACH OF FOUR SEGMENTS OF THE BROADCAST DAY, AS
DESCRIBED IN THE REGULATION, AND THAT SUCH OPTIONS MAY NOT BE EXCLUSIVE
AS AGAINST OTHER NETWORK ORGANIZATIONS AND MAY NOT PREVENT OR HINDER
THE STATION FROM OPTIONING OR SELLING ANY OR ALL OF THE TIME COVERED BY
THE OPTION, OR OTHER TIME, TO OTHER NETWORK ORGANIZATIONS.  P. 202. 

(5)  A REGULATION PROVIDING THAT NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION HAVING ANY CONTRACT, ETC., WITH A NETWORK
ORGANIZATION WHICH (A), WITH RESPECT TO PROGRAMS OFFERED PURSUANT TO AN
AFFILIATION CONTRACT, PREVENTS OR HINDERS THE STATION FROM REJECTING OR
REFUSING NETWORK PROGRAMS WHICH THE STATION REASONABLY BELIEVES TO BE
UNSATISFACTORY OR UNSUITABLE; OR WHICH (B), WITH RESPECT TO NETWORK
PROGRAMS SO OFFERED OR ALREADY CONTRACTED FOR, PREVENTS THE STATION
FROM REJECTING OR REFUSING ANY PROGRAM WHICH, IN ITS OPINION, IS
CONTRARY TO THE PUBLIC INTEREST, OR FROM SUBSTITUTING A PROGRAM OF
OUTSTANDING LOCAL OR NATIONAL IMPORTANCE.  P. 204. 

(6)  A REGULATION PROVIDING THAT NO LICENSE SHALL BE GRANTED TO A
NETWORK ORGANIZATION, OR TO ANY PERSON DIRECTLY OR INDIRECTLY
CONTROLLED BY OR UNDER COMMON CONTROL WITH A NETWORK ORGANIZATION, FOR
MORE THAN ONE STANDARD BROADCAST STATION WHERE ONE OF THE STATIONS
COVERS SUBSTANTIALLY THE SERVICE AREA OF THE OTHER STATION, OR FOR ANY
STANDARD BROADCAST STATION IN ANY LOCALITY WHERE THE EXISTING STANDARD
BROADCAST STATIONS ARE SO FEW OR OF SUCH UNEQUAL DESIRABILITY (IN TERMS
OF COVERAGE, POWER, FREQUENCY, OR OTHER RELATED MATTERS) THAT
COMPETITION WOULD BE SUBSTANTIALLY RESTRAINED BY SUCH LICENSING.  P.
206. 

(7)  A REGULATION PROVIDING THAT NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION HAVING ANY CONTRACT, ETC., WITH A NETWORK
ORGANIZATION UNDER WHICH THE STATION IS PREVENTED OR HINDERED FROM, OR
PENALIZED FOR, FIXING OR ALTERING ITS RATES FOR THE SALE OF BROADCAST
TIME FOR OTHER THAN THE NETWORK'S PROGRAMS.  P. 208. 

3.  SECTION 311 OF THE FEDERAL COMMUNICATIONS ACT, BY AUTHORIZING THE
COMMISSION TO WITHHOLD BROADCASTING STATION LICENSES FROM PERSONS WHO
HAVE BEEN CONVICTED OF VIOLATING THE ANTITRUST LAWS, DOES NOT IMPLY
THAT, IN THE ABSENCE OF SUCH CONVICTION, CONDUCT OF THE APPLICANT
AMOUNTING TO SUCH VIOLATION MAY NOT BE CONSIDERED BY THE COMMISSION IN
DETERMINING WHETHER THE GRANTING OF HIS APPLICATION WOULD BE CONTRARY
TO THE "PUBLIC INTEREST."  P. 222. 

4.  THE STANDARD OF "PUBLIC INTEREST" GOVERNING THE EXERCISE OF THE
POWERS DELEGATED TO THE COMMISSION BY THE ACT IS NOT SO VAGUE AND
INDEFINITE AS TO CREATE AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE
AUTHORITY.  P. 225. 

5.  THE COMMISSION BY ANNOUNCING THAT IT WILL REFUSE STATION LICENSES
TO PERSONS WHO ENGAGE IN SPECIFIED NETWORK PRACTICES CONTRARY TO THE
PUBLIC INTEREST, CONVENIENCE OR NECESSITY DOES NOT THEREBY DENY TO SUCH
PERSONS THE CONSTITUTIONAL RIGHT OF FREE SPEECH.  P. 226. 

6.  IN A SUIT TO ENJOIN THE ENFORCEMENT OF REGULATIONS PROMULGATED BY
THE FEDERAL COMMUNICATIONS COMMISSION, THE DISTRICT COURT PROPERLY
DISPOSED OF THE CASE UPON THE PLEADINGS AND THE RECORD MADE BEFORE THE
COMMISSION, WITHOUT TRIAL DE NOVO.  P. 227. 

NATIONAL BROADCASTING CO., INC. ET AL. V. UNITED STATES ET AL.* 

*TOGETHER WITH NO. 555, COLUMBIA BROADCASTING SYSTEM, INC. V. UNITED
STATES ET AL., ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,  - ARGUED FEBRUARY 11,
1943. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEALS FROM JUDGMENTS OF THE DISTRICT COURT DISMISSING SUITS TO
ENJOIN ENFORCEMENT OF CHAIN BROADCASTING REGULATIONS PROMULGATED BY THE
FEDERAL COMMUNICATIONS COMMISSION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN VIEW OF OUR DEPENDENCE UPON REGULATED PRIVATE ENTERPRISE IN
DISCHARGING THE FAR-REACHING ROLE WHICH RADIO PLAYS IN OUR SOCIETY, A
SOMEWHAT DETAILED EXPOSITION OF THE HISTORY OF THE PRESENT CONTROVERSY
AND THE ISSUES WHICH IT RAISES IS APPROPRIATE. 

THESE SUITS WERE BROUGHT ON OCTOBER 30, 1941, TO ENJOIN THE
ENFORCEMENT OF THE CHAIN BROADCASTING REGULATIONS PROMULGATED BY THE
FEDERAL COMMUNICATIONS COMMISSION ON MAY 2, 1941, AND AMENDED ON
OCTOBER 11, 1941.  WE HELD LAST TERM IN COLUMBIA SYSTEM V. UNITED
STATES, 316 U.S. 407, AND NATIONAL BROADCASTING CO. V. UNITED STATES,
316 U.S. 447, THAT THE SUITS COULD BE MAINTAINED UNDER SEC. 402(A) OF
THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1093, 47 U.S.C. SEC.
402(A)(INCORPORATING BY REFERENCE THE URGENT DEFICIENCIES ACT OF
OCTOBER 22, 1913, 38 STAT. 219, 28 U.S.C. SEC. 47), AND THAT THE
DECREES OF THE DISTRICT COURT DISMISSING THE SUITS FOR WANT OF
JURISDICTION SHOULD THEREFORE BE REVERSED.  ON REMAND THE DISTRICT
COURT GRANTED THE GOVERNMENT'S MOTIONS FOR SUMMARY JUDGMENT AND
DISMISSED THE SUITS ON THE MERITS.  47 F.SUPP.  940.  THE CASES ARE NOW
HERE ON APPEAL.  28 U.S.C. SEC. 47.  SINCE THEY RAISE SUBSTANTIALLY THE
SAME ISSUES AND WERE ARGUED TOGETHER, WE SHALL DEAL WITH BOTH CASES IN
A SINGLE OPINION. 

ON MARCH 18, 1938, THE COMMISSION UNDERTOOK A COMPREHENSIVE
INVESTIGATION TO DETERMINE WHETHER SPECIAL REGULATIONS APPLICABLE TO
RADIO STATIONS ENGAGED IN CHAIN BROADCASTING  FN1 WERE REQUIRED IN THE
"PUBLIC INTEREST, CONVENIENCE, OR NECESSITY."  THE COMMISSION'S ORDER
DIRECTED THAT INQUIRY BE MADE, INTER ALIA, IN THE FOLLOWING SPECIFIC
MATTERS:  THE NUMBER OF STATIONS LICENSED TO OR AFFILIATED WITH
NETWORKS, AND THE AMOUNT OF STATION TIME USED OR CONTROLLED BY
NETWORKS; THE CONTRACTUAL RIGHTS AND OBLIGATIONS OF STATIONS UNDER
THEIR AGREEMENTS WITH NETWORKS; THE SCOPE OF NETWORK AGREEMENTS
CONTAINING EXCLUSIVE AFFILIATION PROVISIONS AND RESTRICTING THE NETWORK
FROM AFFILIATING WITH OTHER STATIONS IN THE SAME AREA; THE RIGHTS AND
OBLIGATIONS OF STATIONS WITH RESPECT TO NETWORK ADVERTISERS; THE NATURE
OF THE PROGRAM SERVICE RENDERED BY STATIONS LICENSED TO NETWORKS; THE
POLICIES OF NETWORKS WITH RESPECT TO CHARACTER OF PROGRAMS,
DIVERSIFICATION, AND ACCOMMODATION TO THE PARTICULAR REQUIREMENTS OF
THE AREAS SERVED BY THE AFFILIATED STATIONS; THE EXTENT TO WHICH
AFFILIATED STATIONS EXERCISE CONTROL OVER PROGRAMS, ADVERTISING
CONTRACTS, AND RELATED MATTERS; THE NATURE AND EXTENT OF NETWORK
PROGRAM DUPLICATION BY STATIONS SERVING THE SAME AREA; THE EXTENT TO
WHICH PARTICULAR NETWORKS HAVE EXCLUSIVE COVERAGE IN SOME AREAS; THE
COMPETITIVE PRACTICES OF STATIONS ENGAGED IN CHAIN BROADCASTING; THE
EFFECT OF CHAIN BROADCASTING UPON STATIONS NOT LICENSED TO OR
AFFILIATED WITH NETWORKS; PRACTICES OR AGREEMENTS IN RESTRAINT OF
TRADE, OR IN FURTHERANCE OF MONOPOLY, IN CONNECTION WITH CHAIN
BROADCASTING; AND THE SCOPE OF CONCENTRATION OF CONTROL OVER STATIONS,
LOCALLY, REGIONALLY, OR NATIONALLY, THROUGH CONTRACTS, COMMON
OWNERSHIP, OR OTHER MEANS. 

ON APRIL 6, 1938, A COMMITTEE OF THREE COMMISSIONERS WAS DESIGNATED
TO HOLD HEARINGS AND MAKE RECOMMENDATIONS TO THE FULL COMMISSION.  THIS
COMMITTEE HELD PUBLIC HEARINGS FOR 73 DAYS OVER A PERIOD OF SIX MONTHS,
FROM NOVEMBER 14, 1938, TO MAY 19, 1939.  ORDER NO. 37, ANNOUNCING THE
INVESTIGATION AND SPECIFYING THE PARTICULAR MATTERS WHICH WOULD BE
EXPLORED AT THE HEARINGS, WAS PUBLISHED IN THE FEDERAL REGISTER, 3 FED.
REG. 637, AND COPIES WERE SENT TO EVERY STATION LICENSEE AND NETWORK
ORGANIZATION.  NOTICES OF THE HEARINGS WERE ALSO SENT TO THESE
PARTIES.  STATION LICENSEES, NATIONAL AND REGIONAL NETWORKS, AND
TRANSCRIPTION AND RECORDING COMPANIES WERE INVITED TO APPEAR AND GIVE
EVIDENCE.  OTHER PERSONS WHO SOUGHT TO APPEAR WERE AFFORDED AN
OPPORTUNITY TO TESTIFY.  96 WITNESSES WERE HEARD BY THE COMMITTEE, 45
OF WHOM WERE CALLED BY THE NATIONAL NETWORKS.  THE EVIDENCE COVERS 27
VOLUMES, INCLUDING OVER 8,000 PAGES OF TRANSCRIPT AND MORE THAN 700
EXHIBITS.  THE TESTIMONY OF THE WITNESSES CALLED BY THE NATIONAL
NETWORKS FILLS MORE THAN 6,000 PAGES, THE EQUIVALENT OF 46 HEARING
DAYS. 

THE COMMITTEE SUBMITTED A REPORT TO THE COMMISSION ON JUNE 12, 1940,
STATING ITS FINDINGS AND RECOMMENDATIONS.  THEREAFTER, BRIEFS ON BEHALF
OF THE NETWORKS AND OTHER INTERESTED PARTIES WERE FILED BEFORE THE FULL
COMMISSION, AND ON NOVEMBER 28, 1940, THE COMMISSION ISSUED PROPOSED
REGULATIONS WHICH THE PARTIES WERE REQUESTED TO CONSIDER IN THE ORAL
ARGUMENTS HELD ON DECEMBER 2 AND 3, 1940.  THESE PROPOSED REGULATIONS
DEALT WITH THE SAME MATTERS AS THOSE COVERED BY THE REGULATIONS
EVENTUALLY ADOPTED BY THE COMMISSION.  ON JANUARY 2, 1941, EACH OF THE
NATIONAL NETWORKS FILED A SUPPLEMENTARY BRIEF DISCUSSING AT LENGTH THE
QUESTIONS RAISED BY THE COMMITTEE REPORT AND THE PROPOSED REGULATIONS. 

ON MAY 2, 1941, THE COMMISSION ISSUED ITS REPORT ON CHAIN
BROADCASTING, SETTING FORTH ITS FINDINGS AND CONCLUSIONS UPON THE
MATTERS EXPLORED IN THE INVESTIGATION, TOGETHER WITH AN ORDER ADOPTING
THE REGULATIONS HERE ASSAILED.  TWO OF THE SEVEN MEMBERS OF THE
COMMISSION DISSENTED FROM THIS ACTION.  THE EFFECTIVE DATE OF THE
REGULATIONS WAS DEFERRED FOR 90 DAYS WITH RESPECT TO EXISTING CONTRACTS
AND ARRANGEMENTS OF NETWORK-OPERATED STATIONS, AND SUBSEQUENTLY THE
EFFECTIVE DATE WAS THRICE AGAIN POSTPONED.  ON AUGUST 14, 1941, THE
MUTUAL BROADCASTING COMPANY PETITIONED THE COMMISSION TO AMEND TWO OF
THE REGULATIONS.  IN CONSIDERING THIS PETITION THE COMMISSION INVITED
INTERESTED PARTIES TO SUBMIT THEIR VIEWS.  BRIEFS WERE FILED ON BEHALF
OF ALL OF THE NATIONAL NETWORKS, AND ORAL ARGUMENT WAS HAD BEFORE THE
COMMISSION ON SEPTEMBER 12, 1941.  AND ON OCTOBER 11, 1941, THE
COMMISSION (AGAIN WITH TWO MEMBERS DISSENTING) ISSUED A SUPPLEMENTAL
REPORT, TOGETHER WITH AN ORDER AMENDING THREE REGULATIONS. 
SIMULTANEOUSLY, THE EFFECTIVE DATE OF THE REGULATIONS WAS POSTPONED
UNTIL NOVEMBER 15, 1941, AND PROVISION WAS MADE FOR FURTHER
POSTPONEMENTS FROM TIME TO TIME IF NECESSARY TO PERMIT THE ORDERLY
ADJUSTMENT OF EXISTING ARRANGEMENTS.  SINCE OCTOBER 30, 1941, WHEN THE
PRESENT SUITS WERE FILED, THE ENFORCEMENT OF THE REGULATIONS HAS BEEN
STAYED EITHER VOLUNTARILY BY THE COMMISSION OR BY ORDER OF COURT. 

SUCH IS THE HISTORY OF THE CHAIN BROADCASTING REGULATIONS.  WE TURN
NOW TO THE REGULATIONS THEMSELVES, ILLUMINED BY THE PRACTICES IN THE
RADIO INDUSTRY DISCLOSED BY THE COMMISSION'S INVESTIGATION.  THE
REGULATIONS, WHICH THE COMMISSION CHARACTERIZED IN ITS REPORT AS "THE
EXPRESSION OF THE GENERAL POLICY WE WILL FOLLOW IN EXERCISING OUR
LICENSING POWER," ARE ADDRESSED IN TERMS TO STATION LICENSEES AND
APPLICANTS FOR STATION LICENSES.  THEY PROVIDE, IN GENERAL, THAT NO
LICENSES SHALL BE GRANTED TO STATIONS OR APPLICANTS HAVING SPECIFIED
RELATIONSHIPS WITH NETWORKS.  EACH REGULATION IS DIRECTED AT A
PARTICULAR PRACTICE FOUND BY THE COMMISSION TO BE DETRIMENTAL TO THE
"PUBLIC INTEREST," AND WE SHALL CONSIDER THEM SERIATIM.  IN DOING SO,
HOWEVER, WE DO NOT OVERLOOK THE ADMONITION OF THE COMMISSION THAT THE
REGULATIONS AS WELL AS THE NETWORK PRACTICES AT WHICH THEY ARE AIMED
ARE INTERRELATED:  "IN CONSIDERING ABOVE THE NETWORK PRACTICES WHICH
NECESSITATE THE REGULATIONS WE ARE ADOPTING, WE HAVE TAKEN EACH
PRACTICE SINGLY, AND HAVE SHOWN THAT EVEN IN ISOLATION EACH WARRANTS
THE REGULATION ADDRESSED TO IT.  BUT THE VARIOUS PRACTICES WE HAVE
CONSIDERED DO NOT OPERATE IN ISOLATION; THEY FORM A COMPACT BUNDLE OR
PATTERN, AND THE EFFECT OF THEIR JOINT IMPACT UPON LICENSEES
NECESSITATES THE REGULATIONS EVEN MORE URGENTLY THAN THE EFFECT OF EACH
TAKEN SINGLY."  (REPORT, P. 75.) 

THE COMMISSION FOUND THAT AT THE END OF 1938 THERE WERE 660
COMMERCIAL STATIONS IN THE UNITED STATES, AND THAT 341 OF THESE WERE
AFFILIATED WITH NATIONAL NETWORKS.  135 STATIONS WERE AFFILIATED
EXCLUSIVELY WITH THE NATIONAL BROADCASTING COMPANY, INC., KNOWN IN THE
INDUSTRY AS NBC, WHICH OPERATED TWO NATIONAL NETWORKS, THE "RED" AND
THE "BLUE."  NBC WAS ALSO THE LICENSEE OF 10 STATIONS, INCLUDING 7
WHICH OPERATED ON SO-CALLED CLEAR CHANNELS WITH THE MAXIMUM POWER
AVAILABLE, 50 KILOWATTS; IN ADDITION, NBC OPERATED 5 OTHER STATIONS, 4
OF WHICH HAD POWER OF 50 KILOWATTS, UNDER MANAGEMENT CONTRACTS WITH
THEIR LICENSEES.  102 STATIONS WERE AFFILIATED EXCLUSIVELY WITH THE
COLUMBIA BROADCASTING SYSTEM, INC., WHICH WAS ALSO THE LICENSEE OF 8
STATIONS, 7 OF WHICH WERE CLEAR-CHANNEL STATIONS OPERATING WITH POWER
OF 50 KILOWATTS.  74 STATIONS WERE UNDER EXCLUSIVE AFFILIATION WITH THE
MUTUAL BROADCASTING SYSTEM, INC. IN ADDITION, 25 STATIONS WERE
AFFILIATED WITH BOTH NBC AND MUTUAL, AND 5 WITH BOTH CBS AND MUTUAL. 
THESE FIGURES, THE COMMISSION NOTED, DID NOT ACCURATELY REFLECT THE
RELATIVE PROMINENCE OF THE THREE COMPANIES, SINCE THE STATIONS
AFFILIATED WITH MUTUAL WERE, GENERALLY SPEAKING, LESS DESIRABLE IN
FREQUENCY, POWER, AND COVERAGE.  IT POINTED OUT THAT THE STATIONS
AFFILIATED WITH THE NATIONAL NETWORKS UTILIZED MORE THAN 97% OF THE
TOTAL NIGHT-TIME BROADCASTING POWER OF ALL THE STATIONS IN THE
COUNTRY.  NBC AND CBS TOGETHER CONTROLLED MORE THAN 85% OF THE TOTAL
NIGHT-TIME WATTAGE, AND THE BROADCAST BUSINESS OF THE THREE NATIONAL
NETWORK COMPANIES AMOUNTED TO ALMOST HALF OF THE TOTAL BUSINESS OF ALL
STATIONS IN THE UNITED STATES. 

THE COMMISSION RECOGNIZED THAT NETWORK BROADCASTING HAD PLAYED AND
WAS CONTINUING TO PLAY AN IMPORTANT PART IN THE DEVELOPMENT OF RADIO. 
"THE GROWTH AND DEVELOPMENT OF CHAIN BROADCASTING," IT STATED, "FOUND
ITS IMPETUS IN THE DESIRE TO GIVE WIDESPREAD COVERAGE TO PROGRAMS WHICH
OTHERWISE WOULD NOT BE HEARD BEYOND THE RECEPTION AREA OF A SINGLE
STATION.  CHAIN BROADCASTING MAKES POSSIBLE A WIDER RECEPTION FOR
EXPENSIVE ENTERTAINMENT AND CULTURAL PROGRAMS AND ALSO FOR PROGRAMS OF
NATIONAL OR REGIONAL SIGNIFICANCE WHICH WOULD OTHERWISE HAVE COVERAGE
ONLY IN THE LOCALITY OF ORIGIN.  FURTHERMORE, THE ACCESS TO GREATLY
ENLARGED AUDIENCES MADE POSSIBLE BY CHAIN BROADCASTING HAS BEEN A
STRONG INCENTIVE TO ADVERTISERS TO FINANCE THE PRODUCTION OF EXPENSIVE
PROGRAMS.  ...  BUT THE FACT THAT THE CHAIN BROADCASTING METHOD BRINGS
BENEFITS AND ADVANTAGES TO BOTH THE LISTENING PUBLIC AND TO BROADCAST
STATION LICENSEES DOES NOT MEAN THAT THE PREVAILING PRACTICES AND
POLICIES OF THE NETWORKS AND THEIR OUTLETS ARE SOUND IN ALL RESPECTS,
OR THAT THEY SHOULD NOT BE ALTERED.  THE COMMISSION'S DUTY UNDER THE
COMMUNICATIONS ACT OF 1934 IS NOT ONLY TO SEE THAT THE PUBLIC RECEIVES
THE ADVANTAGES AND BENEFITS OF CHAIN BROADCASTING, BUT ALSO, SO FAR AS
ITS POWERS ENABLE IT, TO SEE THAT PRACTICES WHICH ADVERSELY AFFECT THE
ABILITY OF LICENSEES TO OPERATE IN THE PUBLIC INTEREST ARE
ELIMINATED."  (REPORT, P. 4.) 

THE COMMISSION FOUND THAT EIGHT NETWORK ABUSES WERE AMENABLE TO
CORRECTION WITHIN THE POWERS GRANTED IT BY CONGRESS: 

REGULATION 3.101 - EXCLUSIVE AFFILIATION OF STATION.  THE COMMISSION
FOUND THAT THE NETWORK AFFILIATION AGREEMENTS OF NBC AND CBS
CUSTOMARILY CONTAINED A PROVISION WHICH PREVENTED THE STATION FROM
BROADCASTING THE PROGRAMS OF ANY OTHER NETWORK.  THE EFFECT OF THIS
PROVISION WAS TO HINDER THE GROWTH OF NEW NETWORKS, TO DEPRIVE THE
LISTENING PUBLIC IN MANY AREAS OF SERVICE TO WHICH THEY WERE ENTITLED,
AND TO PREVENT STATION LICENSEES FROM EXERCISING THEIR STATUTORY DUTY
OF DETERMINING WHICH PROGRAMS WOULD BEST SERVE THE NEEDS OF THEIR
COMMUNITY.  THE COMMISSION OBSERVED THAT IN AREAS WHERE ALL THE
STATIONS WERE UNDER EXCLUSIVE CONTRACT TO EITHER NBC OR CBS, THE PUBLIC
WAS DEPRIVED OF THE OPPORTUNITY TO HEAR PROGRAMS PRESENTED BY MUTUAL. 
TO TAKE A CASE CITED IN THE REPORT:  IN THE FALL OF 1939 MUTUAL
OBTAINED THE EXCLUSIVE RIGHT TO BROADCAST THE WORLD SERIES BASEBALL
GAMES.  IT OFFERED THIS PROGRAM OF OUTSTANDING NATIONAL INTEREST TO
STATIONS THROUGHOUT THE COUNTRY, INCLUDING NBC AND CBS AFFILIATES IN
COMMUNITIES HAVING NO OTHER STATIONS.  CBS AND NBC IMMEDIATELY INVOKED
THE "EXCLUSIVE AFFILIATION" CLAUSES OF THEIR AGREEMENTS WITH THESE
STATIONS, AND AS A RESULT THOUSANDS OF PERSONS IN MANY SECTIONS OF THE
COUNTRY WERE UNABLE TO HEAR THE BROADCASTS OF THE GAMES. 

"RESTRAINTS HAVING THIS EFFECT," THE COMMISSION OBSERVED, "ARE TO BE
CONDEMNED AS CONTRARY TO THE PUBLIC INTEREST IRRESPECTIVE OF WHETHER IT
BE ASSUMED THAT MUTUAL PROGRAMS ARE OF EQUAL, SUPERIOR, OR INFERIOR
QUALITY.  THE IMPORTANT CONSIDERATION IS THAT STATION LICENSEES ARE
DENIED FREEDOM TO CHOOSE THE PROGRAMS WHICH THEY BELIEVE BEST SUITED TO
THEIR NEEDS; IN THIS MANNER THE DUTY OF A STATION LICENSEE TO OPERATE
IN THE PUBLIC INTEREST IS DEFEATED.  ...  OUR CONCLUSION IS THAT THE
DISADVANTAGES RESULTING FROM THESE EXCLUSIVE ARRANGEMENTS FAR OUTWEIGH
ANY ADVANTAGES.  A LICENSEE STATION DOES NOT OPERATE IN THE PUBLIC
INTEREST WHEN IT ENTERS INTO EXCLUSIVE ARRANGEMENTS WHICH PREVENT IT
FROM GIVING THE PUBLIC THE BEST SERVICE OF WHICH IT IS CAPABLE, AND
WHICH, BY CLOSING THE DOOR OF OPPORTUNITY IN THE NETWORK FIELD,
ADVERSELY AFFECTS THE PROGRAM STRUCTURE OF THE ENTIRE INDUSTRY." 
(REPORT, PP. 52, 57.)  ACCORDINGLY, THE COMMISSION ADOPTED REGULATION
3.101, PROVIDING AS FOLLOWS:  "NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION HAVING ANY CONTRACT, ARRANGEMENT, OR
UNDERSTANDING, EXPRESS OR IMPLIED, WITH A NETWORK ORGANIZATION UNDER
WHICH THE STATION IS PREVENTED OR HINDERED FROM, OR PENALIZED FOR,
BROADCASTING THE PROGRAMS OF ANY OTHER NETWORK ORGANIZATION." 

REGULATION 3.102 - TERRITORIAL EXCLUSIVITY.  THE COMMISSION FOUND
ANOTHER TYPE OF "EXCLUSIVITY" PROVISION IN NETWORK AFFILIATION
AGREEMENTS WHEREBY THE NETWORK BOUND ITSELF NOT TO SELL PROGRAMS TO ANY
OTHER STATION IN THE SAME AREA.  THE EFFECT OF THIS PROVISION, DESIGNED
TO PROTECT THE AFFILIATE FROM THE COMPETITION OF OTHER STATIONS SERVING
THE SAME TERRITORY, WAS TO DEPRIVE THE LISTENING PUBLIC OF MANY
PROGRAMS THAT MIGHT OTHERWISE BE AVAILABLE.  IF AN AFFILIATED STATION
REJECTED A NETWORK PROGRAM, THE "TERRITORIAL EXCLUSIVITY" CLAUSE OF ITS
AFFILIATION AGREEMENT PREVENTED THE NETWORK FROM OFFERING THE PROGRAM
TO OTHER STATIONS IN THE AREA.  FOR EXAMPLE, MUTUAL PRESENTED A POPULAR
PROGRAM, KNOWN AS "THE AMERICAN FORUM OF THE AIR," IN WHICH PROMINENT
PERSONS DISCUSSED TOPICS OF GENERAL INTEREST.  NONE OF THE MUTUAL
STATIONS IN THE BUFFALO AREA DECIDED TO CARRY THE PROGRAM, AND A
BUFFALO STATION NOT AFFILIATED WITH MUTUAL ATTEMPTED TO OBTAIN THE
PROGRAM FOR ITS LISTENERS.  THESE EFFORTS FAILED, HOWEVER, ON ACCOUNT
OF THE "TERRITORIAL EXCLUSIVITY" PROVISION IN MUTUAL'S AGREEMENTS WITH
ITS OUTLETS.  THE RESULT WAS THAT THIS PROGRAM WAS NOT AVAILABLE TO THE
PEOPLE OF BUFFALO. 

THE COMMISSION CONCLUDED THAT "IT IS NOT IN THE PUBLIC INTEREST FOR
THE LISTENING AUDIENCE IN AN AREA TO BE DEPRIVED OF NETWORK PROGRAMS
NOT CARRIED BY ONE STATION WHERE OTHER STATIONS IN THAT AREA ARE READY
AND WILLING TO BROADCAST THE PROGRAMS.  IT IS AS MUCH AGAINST THE
PUBLIC INTEREST FOR A NETWORK AFFILIATE TO ENTER INTO A CONTRACTUAL
ARRANGEMENT WHICH PREVENTS ANOTHER STATION FROM CARRYING A NETWORK
PROGRAM AS IT WOULD BE FOR IT TO DROWN OUT THAT PROGRAM BY ELECTRICAL
INTERFERENCE."  (REPORT, P. 59.) 

RECOGNIZING THAT THE "TERRITORIAL EXCLUSIVITY" CLAUSE WAS
UNOBJECTIONABLE IN SO FAR AS IT SOUGHT TO PREVENT DUPLICATION OF
PROGRAMS IN THE SAME AREA, THE COMMISSION LIMITED ITSELF TO THE
SITUATIONS IN WHICH THE CLAUSE IMPAIRED THE ABILITY OF THE LICENSEE TO
BROADCAST AVAILABLE PROGRAMS.  REGULATION 3.102, PROMULGATED TO REMEDY
THIS PARTICULAR EVIL, PROVIDES AS FOLLOWS:  "NO LICENSE SHALL BE
GRANTED TO A STANDARD BROADCAST STATION HAVING ANY CONTRACT,
ARRANGEMENT, OR UNDERSTANDING, EXPRESS OR IMPLIED, WITH A NETWORK
ORGANIZATION WHICH PREVENTS OR HINDERS ANOTHER STATION SERVING
SUBSTANTIALLY THE SAME AREA FROM BROADCASTING THE NETWORK'S PROGRAMS
NOT TAKEN BY THE FORMER STATION, OR WHICH PREVENTS OR HINDERS ANOTHER
STATION SERVING A SUBSTANTIALLY DIFFERENT AREA FROM BROADCASTING ANY
PROGRAM OF THE NETWORK ORGANIZATION.  THIS REGULATION SHALL NOT BE
CONSTRUED TO PROHIBIT ANY CONTRACT, ARRANGEMENT, OR UNDERSTANDING
BETWEEN A STATION AND A NETWORK ORGANIZATION PURSUANT TO WHICH THE
STATION IS GRANTED THE FIRST CALL IN ITS PRIMARY SERVICE AREA UPON THE
PROGRAMS OF THE NETWORK ORGANIZATION." 

REGULATION 3.103 - TERM OF AFFILIATION.  THE STANDARD NBC AND CBS
AFFILIATION CONTRACTS BOUND THE STATION FOR A PERIOD OF FIVE YEARS,
WITH THE NETWORK HAVING THE EXCLUSIVE RIGHT TO TERMINATE THE CONTRACTS
UPON ONE YEAR'S NOTICE.  THE COMMISSION, RELYING UPON SEC. 307(D) OF
THE COMMUNICATIONS ACT OF 1934, UNDER WHICH NO LICENSE TO OPERATE A
BROADCAST STATION CAN BE GRANTED FOR A LONGER TERM THAN THREE YEARS,
FOUND THE FIVE-YEAR AFFILIATION TERM TO BE CONTRARY TO THE POLICY OF
THE ACT:  "REGARDLESS OF ANY CHANGES THAT MAY OCCUR IN THE ECONOMIC,
POLITICAL, OR SOCIAL LIFE OF THE NATION OR OF THE COMMUNITY IN WHICH
THE STATION IS LOCATED, CBS AND NBC AFFILIATES ARE BOUND BY CONTRACT TO
CONTINUE BROADCASTING THE NETWORK PROGRAMS OF ONLY ONE NETWORK FOR 5
YEARS.  THE LICENSEE IS SO BOUND EVEN THOUGH THE POLICY AND CALIBER OF
PROGRAMS OF THE NETWORK MAY DETERIORATE GREATLY.  THE FUTURE
NECESSITIES OF THE STATION AND OF THE COMMUNITY ARE NOT CONSIDERED. 
THE STATION LICENSEE IS UNABLE TO FOLLOW HIS CONCEPTION OF THE PUBLIC
INTEREST UNTIL THE END OF THE 5-YEAR CONTRACT."  (REPORT, P. 61.)  THE
COMMISSION CONCLUDED THAT UNDER CONTRACTS BINDING THE AFFILIATES FOR
FIVE YEARS, "STATIONS BECOME PARTIES TO ARRANGEMENTS WHICH DEPRIVE THE
PUBLIC OF THE IMPROVED SERVICE IT MIGHT OTHERWISE DERIVE FROM
COMPETITION IN THE NETWORK FIELD; AND THAT A STATION IS NOT OPERATING
IN THE PUBLIC INTEREST WHEN IT SO LIMITS ITS FREEDOM OF ACTION." 
(REPORT, P. 62.)  ACCORDINGLY, THE COMMISSION ADOPTED REGULATION 3.103:
"NO LICENSE SHALL BE GRANTED TO A STANDARD BROADCAST STATION HAVING
ANY CONTRACT, ARRANGEMENT, OR UNDERSTANDING, EXPRESS OR IMPLIED, WITH A
NETWORK ORGANIZATION WHICH PROVIDES, BY ORIGINAL TERM, PROVISIONS FOR
RENEWAL, OR OTHERWISE FOR THE AFFILIATION OF THE STATION WITH THE
NETWORK ORGANIZATION FOR A PERIOD LONGER THAN TWO YEARS:  FN2
PROVIDED, THAT A CONTRACT, ARRANGEMENT, OR UNDERSTANDING FOR A PERIOD
UP TO TWO YEARS, MAY BE ENTERED INTO WITHIN 120 DAYS PRIOR TO THE
COMMENCEMENT OF SUCH PERIOD." 

REGULATION 3.104 - OPTION TIME.  THE COMMISSION FOUND THAT NETWORK
AFFILIATION CONTRACTS USUALLY CONTAINED SO-CALLED NETWORK OPTIONAL TIME
CLAUSES.  UNDER THESE PROVISIONS THE NETWORK COULD UPON 28 DAYS' NOTICE
CALL UPON ITS AFFILIATES TO CARRY A COMMERCIAL PROGRAM DURING ANY OF
THE HOURS SPECIFIED IN THE AGREEMENT AS "NETWORK OPTIONAL TIME."  FOR
CBS AFFILIATES "NETWORK OPTIONAL TIME" MEANT THE ENTIRE BROADCAST DAY. 
FOR 29 OUTLETS OF NBC ON THE PACIFIC COAST, IT ALSO COVERED THE ENTIRE
BROADCAST DAY; FOR SUBSTANTIALLY ALL OF THE OTHER NBC AFFILIATES, IT
INCLUDED 8 1/2 HOURS ON WEEKDAYS AND 8 HOURS ON SUNDAYS.  MUTUAL'S
CONTRACTS WITH ABOUT HALF OF ITS AFFILIATES CONTAINED SUCH A PROVISION,
GIVING THE NETWORK OPTIONAL TIME FOR 3 OR 4 HOURS ON WEEKDAYS AND 6
HOURS ON SUNDAYS. 

IN THE COMMISSION'S JUDGMENT THESE OPTIONAL TIME PROVISIONS, IN
ADDITION TO IMPOSING SERIOUS OBSTACLES IN THE PATH OF NEW NETWORKS,
HINDERED STATIONS IN DEVELOPING A LOCAL PROGRAM SERVICE.  THE EXERCISE
BY THE NETWORKS OF THEIR OPTIONS OVER THE STATION'S TIME TENDED TO
PREVENT REGULAR SCHEDULING OF LOCAL PROGRAMS AT DESIRABLE HOURS.  THE
COMMISSION FOUND THAT "SHIFTING A LOCAL COMMERCIAL PROGRAM MAY
SERIOUSLY INTERFERE WITH THE EFFORTS OF A (LOCAL) SPONSOR TO BUILD UP A
REGULAR LISTENING AUDIENCE AT A DEFINITE HOUR, AND THE LONG-TERM
ADVERTISING CONTRACT BECOMES A HIGHLY DUBIOUS PROJECT.  THIS HAMPERS
THE EFFORTS OF THE STATION TO DEVELOP LOCAL COMMERCIAL PROGRAMS AND
AFFECTS ADVERSELY ITS ABILITY TO GIVE THE PUBLIC GOOD PROGRAM SERVICE. 
...  A STATION LICENSEE MUST RETAIN SUFFICIENT FREEDOM OF ACTION TO
SUPPLY THE PROGRAM AND ADVERTISING NEEDS OF THE LOCAL COMMUNITY.  LOCAL
PROGRAM SERVICE IS A VITAL PART OF COMMUNITY LIFE.  A STATION SHOULD BE
READY, ABLE, AND WILLING TO SERVE THE NEEDS OF THE LOCAL COMMUNITY BY
BROADCASTING SUCH OUTSTANDING LOCAL EVENTS AS COMMUNITY CONCERTS, CIVIC
MEETINGS, LOCAL SPORTS EVENTS, AND OTHER PROGRAMS OF LOCAL CONSUMER AND
SOCIAL INTEREST.  WE CONCLUDE THAT NATIONAL NETWORK TIME OPTIONS HAVE
RESTRICTED THE FREEDOM OF STATION LICENSEES AND HAMPERED THEIR EFFORTS
TO BROADCAST LOCAL COMMERCIAL PROGRAMS, THE PROGRAMS OF OTHER NATIONAL
NETWORKS, AND NATIONAL SPOT TRANSCRIPTIONS.  WE BELIEVE THAT THESE
CONSIDERATIONS FAR OUTWEIGH ANY SUPPOSED ADVANTAGES FROM 'STABILITY' OF
NETWORK OPERATIONS UNDER TIME OPTIONS.  WE FIND THAT THE OPTIONING OF
TIME BY LICENSEE STATIONS HAS OPERATED AGAINST THE PUBLIC INTEREST." 
(REPORT, PP. 63, 65.) 

THE COMMISSION UNDERTOOK TO PRESERVE THE ADVANTAGES OF OPTION TIME,
AS A DEVICE FOR "STABILIZING" THE INDUSTRY, WITHOUT UNDULY IMPAIRING
THE ABILITY OF LOCAL STATIONS TO DEVELOP LOCAL PROGRAM SERVICE. 
REGULATION 3.104 CALLED FOR THE MODIFICATION OF THE OPTION-TIME
PROVISION IN THREE RESPECTS:  THE MINIMUM NOTICE PERIOD FOR EXERCISE OF
THE OPTION COULD NOT BE LESS THAN 56 DAYS; THE NUMBER OF HOURS WHICH
COULD BE OPTIONED WAS LIMITED; AND SPECIFIC RESTRICTIONS WERE PLACED
UPON EXERCISE OF THE OPTION TO THE DISADVANTAGE OF OTHER NETWORKS.  THE
TEXT OF THE REGULATION FOLLOWS:  "NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION WHICH OPTIONS FOR NETWORK PROGRAMS ANY TIME
SUBJECT TO CALL ON LESS THAN 56 DAYS' NOTICE, OR MORE TIME THAN A TOTAL
OF THREE HOURS WITHIN EACH OF FOUR SEGMENTS OF THE BROADCAST DAY, AS
HEREIN DESCRIBED.  THE BROADCAST DAY IS DIVIDED INTO 4 SEGMENTS, AS
FOLLOWS:  8:00 A.M. TO 1:00 P.M.; 1:00 P.M. TO 6:00 P.M.; 6:00 P.M. TO
11:00 P.M.; 11:00 P.M. TO 8:00 A.M.  SUCH OPTIONS MAY NOT BE EXCLUSIVE
AS AGAINST OTHER NETWORK ORGANIZATIONS AND MAY NOT PREVENT OR HINDER
THE STATION FROM OPTIONING OR SELLING ANY OR ALL OF THE TIME COVERED BY
THE OPTION, OR OTHER TIME, TO OTHER NETWORK ORGANIZATIONS." 

REGULATION 3.105 - RIGHT TO REJECT PROGRAMS.  THE COMMISSION FOUND
THAT MOST NETWORK AFFILIATION CONTRACTS CONTAINED A CLAUSE DEFINING THE
RIGHT OF THE STATION TO REJECT NETWORK COMMERCIAL PROGRAMS.  THE NBC
CONTRACTS PROVIDED SIMPLY THAT THE STATION "MAY REJECT A NETWORK
PROGRAM THE BROADCASTING OF WHICH WOULD NOT BE IN THE PUBLIC INTEREST,
CONVENIENCE, AND NECESSITY."  NBC REQUIRED A LICENSEE WHO REJECTED A
PROGRAM TO "BE ABLE TO SUPPORT HIS CONTENTION THAT WHAT HE HAS DONE HAS
BEEN MORE IN THE PUBLIC INTEREST THAN HAD HE CARRIED ON THE NETWORK
PROGRAM."  SIMILARLY, THE CBS CONTRACTS PROVIDED THAT IF THE STATION
HAD "REASONABLE OBJECTION TO ANY SPONSORED PROGRAM OR THE PRODUCT
ADVERTISED THEREON AS NOT BEING IN THE PUBLIC INTEREST, THE STATION
MAY, ON 3 WEEKS' PRIOR NOTICE THEREOF TO COLUMBIA, REFUSE TO BROADCAST
SUCH PROGRAM, UNLESS DURING SUCH NOTICE PERIOD SUCH REASONABLE
OBJECTION OF THE STATION SHALL BE SATISFIED." 

WHILE SEEMING IN THE ABSTRACT TO BE FAIR, THESE PROVISIONS, ACCORDING
TO THE COMMISSION'S FINDING, DID NOT SUFFICIENTLY PROTECT THE "PUBLIC
INTEREST."  AS A PRACTICAL MATTER, THE LICENSEE COULD NOT DETERMINE IN
ADVANCE WHETHER THE BROADCASTING OF ANY PARTICULAR NETWORK PROGRAM
WOULD OR WOULD NOT BE IN THE PUBLIC INTEREST.  "IT IS OBVIOUS THAT FROM
SUCH SKELETAL INFORMATION (AS THE NETWORKS SUBMITTED TO THE STATIONS
PRIOR TO THE BROADCASTS) THE STATION CANNOT DETERMINE IN ADVANCE
WHETHER THE PROGRAM IS IN THE PUBLIC INTEREST, NOR CAN IT ASCERTAIN
WHETHER OR NOT PARTS OF THE PROGRAM ARE IN ONE WAY OR ANOTHER
OFFENSIVE.  IN PRACTICE, IF NOT IN THEORY, STATIONS AFFILIATED WITH
NETWORKS HAVE DELEGATED TO THE NETWORKS A LARGE PART OF THEIR
PROGRAMMING FUNCTIONS.  IN MANY INSTANCES, MOREOVER, THE NETWORK
FURTHER DELEGATES THE ACTUAL PRODUCTION OF PROGRAMS TO ADVERTISING
AGENCIES.  THESE AGENCIES ARE FAR MORE THAN MERE BROKERS OR
INTERMEDIARIES BETWEEN THE NETWORK AND THE ADVERTISER.  TO AN EVER
INCREASING EXTENT, THESE AGENCIES ACTUALLY EXERCISE THE FUNCTION OF
PROGRAM PRODUCTION.  THUS IT IS FREQUENTLY NEITHER THE STATION NOR THE
NETWORK, BUT RATHER THE ADVERTISING AGENCY, WHICH DETERMINES WHAT
BROADCAST PROGRAMS SHALL CONTAIN.  UNDER SUCH CIRCUMSTANCES, IT IS
ESPECIALLY IMPORTANT THAT INDIVIDUAL STATIONS, IF THEY ARE TO OPERATE
IN THE PUBLIC INTEREST, SHOULD HAVE THE PRACTICAL OPPORTUNITY AS WELL
AS THE CONTRACTUAL RIGHT TO REJECT NETWORK PROGRAMS.  ... 

"IT IS THE STATION, NOT THE NETWORK, WHICH IS LICENSED TO SERVE THE
PUBLIC INTEREST.  THE LICENSEE HAS THE DUTY OF DETERMINING WHAT
PROGRAMS SHALL BE BROADCAST OVER HIS STATION'S FACILITIES, AND CANNOT
LAWFULLY DELEGATE THIS DUTY OR TRANSFER THE CONTROL OF HIS STATION
DIRECTLY TO THE NETWORK OR INDIRECTLY TO AN ADVERTISING AGENCY.  HE
CANNOT LAWFULLY BIND HIMSELF TO ACCEPT PROGRAMS IN EVERY CASE WHERE HE
CANNOT SUSTAIN THE BURDEN OF PROOF THAT HE HAS A BETTER PROGRAM.  THE
LICENSEE IS OBLIGED TO RESERVE TO HIMSELF THE FINAL DECISION AS TO WHAT
PROGRAMS WILL BEST SERVE THE PUBLIC INTEREST.  WE CONCLUDE THAT A
LICENSEE IS NOT FULFILLING HIS OBLIGATIONS TO OPERATE IN THE PUBLIC
INTEREST, AND IS NOT OPERATING IN ACCORDANCE WITH THE EXPRESS
REQUIREMENTS OF THE COMMUNICATIONS ACT, IF HE AGREES TO ACCEPT PROGRAMS
ON ANY BASIS OTHER THAN HIS OWN REASONABLE DECISION THAT THE PROGRAMS
ARE SATISFACTORY."  (REPORT, PP. 39, 66.) 

THE COMMISSION UNDERTOOK IN REGULATION 3.105 TO FORMULATE THE
OBLIGATIONS OF LICENSEES WITH RESPECT TO SUPERVISION OVER PROGRAMS:
"NO LICENSE SHALL BE GRANTED TO A STANDARD BROADCAST STATION HAVING ANY
CONTRACT, ARRANGEMENT, OR UNDERSTANDING, EXPRESS OR IMPLIED, WITH A
NETWORK ORGANIZATION WHICH (A), WITH RESPECT TO PROGRAMS OFFERED
PURSUANT TO AN AFFILIATION CONTRACT, PREVENTS OR HINDERS THE STATION
FROM REJECTING OR REFUSING NETWORK PROGRAMS WHICH THE STATION
REASONABLY BELIEVES TO BE UNSATISFACTORY OR UNSUITABLE; OR WHICH (B),
WITH RESPECT TO NETWORK PROGRAMS SO OFFERED OR ALREADY CONTRACTED FOR,
PREVENTS THE STATION FROM REJECTING OR REFUSING ANY PROGRAM WHICH, IN
ITS OPINION, IS CONTRARY TO THE PUBLIC INTEREST, OR FROM SUBSTITUTING A
PROGRAM OF OUTSTANDING LOCAL OR NATIONAL IMPORTANCE." 

REGULATION 3.106 - NETWORK OWNERSHIP OF STATIONS.  THE COMMISSION
FOUND THAT NBC, IN ADDITION TO ITS NETWORK OPERATIONS, WAS THE LICENSEE
OF 10 STATIONS, 2 EACH IN NEW YORK, CHICAGO, WASHINGTON, AND SAN
FRANCISCO, 1 IN DENVER, AND 1 IN CLEVELAND.  CBS WAS THE LICENSEE OF 8
STATIONS, 1 IN EACH OF THESE CITIES:  NEW YORK, CHICAGO, WASHINGTON,
BOSTON, MINNEAPOLIS, ST. LOUIS, CHARLOTTE, AND LOS ANGELES.  THESE 18
STATIONS OWNED BY NBC AND CBS, THE COMMISSION OBSERVED, WERE AMONG THE
MOST POWERFUL AND DESIRABLE IN THE COUNTRY, AND WERE PERMANENTLY
INACCESSIBLE TO COMPETING NETWORKS.  "COMPETITION AMONG NETWORKS FOR
THESE FACILITIES IS NONEXISTENT, AS THEY ARE COMPLETELY REMOVED FROM
THE NETWORK-STATION MARKET.  IT GIVES THE NETWORK COMPLETE CONTROL OVER
ITS POLICIES.  THIS 'BOTTLING-UP' OF THE BEST FACILITIES HAS
UNDOUBTEDLY HAD A DISCOURAGING EFFECT UPON THE CREATION AND GROWTH OF
NEW NETWORKS.  FURTHERMORE, COMMON OWNERSHIP OF NETWORK AND STATION
PLACES THE NETWORK IN A POSITION WHERE ITS INTEREST AS THE OWNER OF
CERTAIN STATIONS MAY CONFLICT WITH ITS INTEREST AS A NETWORK
ORGANIZATION SERVING AFFILIATED STATIONS.  IN DEALINGS WITH
ADVERTISERS, THE NETWORK REPRESENTS ITS OWN STATIONS IN A PROPRIETARY
CAPACITY AND THE AFFILIATED STATIONS IN SOMETHING AKIN TO AN AGENCY
CAPACITY.  THE DANGER IS PRESENT THAT THE NETWORK ORGANIZATION WILL
GIVE PREFERENCE TO ITS OWN STATIONS AT THE EXPENSE OF ITS AFFILIATES." 
(REPORT, P. 67.) 

THE COMMISSION STATED THAT IF THE QUESTION HAD ARISEN AS AN ORIGINAL
MATTER, IT MIGHT WELL HAVE CONCLUDED THAT THE PUBLIC INTEREST REQUIRED
SEVERANCE OF THE BUSINESS OF STATION OWNERSHIP FROM THAT OF NETWORK
OPERATION.  BUT SINCE SUBSTANTIAL BUSINESS INTERESTS HAVE BEEN FORMED
ON THE BASIS OF THE COMMISSION'S CONTINUED TOLERANCE OF THE SITUATION,
IT WAS FOUND INADVISABLE TO TAKE SUCH A DRASTIC STEP.  THE COMMISSION
CONCLUDED, HOWEVER, THAT "THE LICENSING OF TWO STATIONS IN THE SAME
AREA TO A SINGLE NETWORK ORGANIZATION IS BASICALLY UNSOUND AND CONTRARY
TO THE PUBLIC INTEREST," AND THAT IT WAS ALSO AGAINST THE "PUBLIC
INTEREST" FOR NETWORK ORGANIZATIONS TO OWN STATIONS IN AREAS WHERE THE
AVAILABLE FACILITIES WERE SO FEW OR OF SUCH UNEQUAL COVERAGE THAT
COMPETITION WOULD THEREBY BE SUBSTANTIALLY RESTRICTED.  RECOGNIZING
THAT THESE CONSIDERATIONS CALLED FOR FLEXIBILITY IN THEIR APPLICATION
TO PARTICULAR SITUATIONS, THE COMMISSION PROVIDED THAT "NETWORKS WILL
BE GIVEN FULL OPPORTUNITY, ON PROPER APPLICATION FOR NEW FACILITIES OR
RENEWAL OF EXISTING LICENSES, TO CALL TO OUR ATTENTION ANY REASONS WHY
THE PRINCIPLE SHOULD BE MODIFIED OR HELD INAPPLICABLE."  (REPORT, P.
68.)  REGULATION 3.106 READS AS FOLLOWS:  "NO LICENSE SHALL BE GRANTED
TO A NETWORK ORGANIZATION, OR TO ANY PERSON DIRECTLY OR INDIRECTLY
CONTROLLED BY OR UNDER COMMON CONTROL WITH A NETWORK ORGANIZATION, FOR
MORE THAN ONE STANDARD BROADCAST STATION WHERE ONE OF THE STATIONS
COVERS SUBSTANTIALLY THE SERVICE AREA OF THE OTHER STATION, OR FOR ANY
STANDARD BROADCAST STATION IN ANY LOCALITY WHERE THE EXISTING STANDARD
BROADCAST STATIONS ARE SO FEW OR OF SUCH UNEQUAL DESIRABILITY (IN TERMS
OF COVERAGE, POWER, FREQUENCY, OR OTHER RELATED MATTERS) THAT
COMPETITION WOULD BE SUBSTANTIALLY RESTRAINED BY SUCH LICENSING." 

REGULATION 3.107 - DUAL NETWORK OPERATION.  THIS REGULATION PROVIDES
THAT:  "NO LICENSE SHALL BE ISSUED TO A STANDARD BROADCAST STATION
AFFILIATED WITH A NETWORK ORGANIZATION WHICH MAINTAINS MORE THAN ONE
NETWORK:  PROVIDED, THAT THIS REGULATION SHALL NOT BE APPLICABLE IF
SUCH NETWORKS ARE NOT OPERATED SIMULTANEOUSLY, OR IF THERE IS NO
SUBSTANTIAL OVERLAP IN THE TERRITORY SERVED BY THE GROUP OF STATIONS
COMPRISING EACH SUCH NETWORK."  IN ITS SUPPLEMENTAL REPORT OF OCTOBER
11, 1941, THE COMMISSION ANNOUNCED THE INDEFINITE SUSPENSION OF THIS
REGULATION.  THERE IS NO OCCASION HERE TO CONSIDER THE VALIDITY OF
REGULATION 3.107, SINCE THERE IS NO IMMEDIATE THREAT OF ITS ENFORCEMENT
BY THE COMMISSION. 

REGULATION 3.108 - CONTROL BY NETWORKS OF STATION RATES.  THE
COMMISSION FOUND THAT NBC'S AFFILIATION CONTRACTS CONTAINED A PROVISION
EMPOWERING THE NETWORK TO REDUCE THE STATION'S NETWORK RATE, AND
THEREBY TO REDUCE THE COMPENSATION RECEIVED BY THE STATION, IF THE
STATION SET A LOWER RATE FOR NON-NETWORK NATIONAL ADVERTISING THAN THE
RATE ESTABLISHED BY THE CONTRACT FOR THE NETWORK PROGRAMS.  UNDER THIS
PROVISION THE STATION COULD NOT SELL TIME TO A NATIONAL ADVERTISER FOR
LESS THAN IT WOULD COST THE ADVERTISER IF HE BOUGHT THE TIME FROM NBC. 
IN THE WORDS OF NBC'S VICE-PRESIDENT, "THIS MEANS SIMPLY THAT A
NATIONAL ADVERTISER SHOULD PAY THE SAME PRICE FOR THE STATION WHETHER
HE BUYS IT THROUGH ONE SOURCE OR ANOTHER SOURCE.  IT MEANS THAT WE DO
NOT BELIEVE THAT OUR STATIONS SHOULD GO INTO COMPETITION WITH
OURSELVES."  (REPORT, P. 73.) 

THE COMMISSION CONCLUDED THAT "IT IS AGAINST THE PUBLIC INTEREST FOR
A STATION LICENSEE TO ENTER INTO A CONTRACT WITH A NETWORK WHICH HAS
THE EFFECT OF DECREASING ITS ABILITY TO COMPETE FOR NATIONAL BUSINESS. 
WE BELIEVE THAT THE PUBLIC INTEREST WILL BEST BE SERVED AND LISTENERS
SUPPLIED WITH THE BEST PROGRAMS IF STATIONS BARGAIN FREELY WITH
NATIONAL ADVERTISERS."  (REPORT, P. 75.)  ACCORDINGLY, THE COMMISSION
ADOPTED REGULATION 3.108, WHICH PROVIDES AS FOLLOWS:  "NO LICENSE SHALL
BE GRANTED TO A STANDARD BROADCAST STATION HAVING ANY CONTRACT,
ARRANGEMENT, OR UNDERSTANDING, EXPRESS OR IMPLIED, WITH A NETWORK
ORGANIZATION UNDER WHICH THE STATION IS PREVENTED OR HINDERED FROM, OR
PENALIZED FOR, FIXING OR ALTERING ITS RATES FOR THE SALE OF BROADCAST
TIME FOR OTHER THAN THE NETWORK'S PROGRAMS." 

THE APPELLANTS ATTACK THE VALIDITY OF THESE REGULATIONS ALONG MANY
FRONTS.  THEY CONTEND THAT THE COMMISSION WENT BEYOND THE REGULATORY
POWERS CONFERRED UPON IT BY THE COMMUNICATIONS ACT OF 1934; THAT EVEN
IF THE COMMISSION WERE AUTHORIZED BY THE ACT TO DEAL WITH THE MATTERS
COMPREHENDED BY THE REGULATIONS, ITS ACTION IS NEVERTHELESS INVALID
BECAUSE THE COMMISSION MISCONCEIVED THE SCOPE OF THE ACT, PARTICULARLY
SEC. 313 WHICH DEALS WITH THE APPLICATION OF THE ANTI-TRUST LAWS TO THE
RADIO INDUSTRY; THAT THE REGULATIONS ARE ARBITRARY AND CAPRICIOUS; THAT
IF THE COMMUNICATIONS ACT OF 1934 WERE CONSTRUED TO AUTHORIZE THE
PROMULGATION OF THE REGULATIONS, IT WOULD BE AN UNCONSTITUTIONAL
DELEGATION OF LEGISLATIVE POWER; AND THAT, IN ANY EVENT, THE
REGULATIONS ABRIDGE THE APPELLANTS' RIGHT OF FREE SPEECH IN VIOLATION
OF THE FIRST AMENDMENT.  WE ARE THUS CALLED UPON TO DETERMINE WHETHER
CONGRESS HAS AUTHORIZED THE COMMISSION TO EXERCISE THE POWER ASSERTED
BY THE CHAIN BROADCASTING REGULATIONS, AND IF IT HAS, WHETHER THE
CONSTITUTION FORBIDS THE EXERCISE OF SUCH AUTHORITY. 

FEDERAL REGULATION OF RADIO  FN3  BEGINS WITH THE WIRELESS SHIP ACT
OF JUNE 24, 1910, 36 STAT. 629, WHICH FORBADE ANY STEAMER CARRYING OR
LICENSED TO CARRY FIFTY OR MORE PERSONS TO LEAVE ANY AMERICAN PORT
UNLESS EQUIPPED WITH EFFICIENT APPARATUS FOR RADIO COMMUNICATION, IN
CHARGE OF A SKILLED OPERATOR.  THE ENFORCEMENT OF THIS LEGISLATION WAS
ENTRUSTED TO THE SECRETARY OF COMMERCE AND LABOR, WHO WAS IN CHARGE OF
THE ADMINISTRATION OF THE MARINE NAVIGATION LAWS.  BUT IT WAS NOT UNTIL
1912, WHEN THE UNITED STATES RATIFIED THE FIRST INTERNATIONAL RADIO
TREATY, 37 STAT. 1565, THAT THE NEED FOR GENERAL REGULATION OF RADIO
COMMUNICATION BECAME URGENT.  IN ORDER TO FULFILL OUR OBLIGATIONS UNDER
THE TREATY, CONGRESS ENACTED THE RADIO ACT OF AUGUST 13, 1912, 37 STAT.
302.  THIS STATUTE FORBADE THE OPERATION OF RADIO APPARATUS WITHOUT A
LICENSE FROM THE SECRETARY OF COMMERCE AND LABOR; IT ALSO ALLOCATED
CERTAIN FREQUENCIES FOR THE USE OF THE GOVERNMENT, AND IMPOSED
RESTRICTIONS UPON THE CHARACTER OF WAVE EMISSIONS, THE TRANSMISSION OF
DISTRESS SIGNALS, AND THE LIKE. 

THE ENFORCEMENT OF THE RADIO ACT OF 1912 PRESENTED NO SERIOUS
PROBLEMS PRIOR TO THE WORLD WAR.  QUESTIONS OF INTERFERENCE AROSE ONLY
RARELY BECAUSE THERE WERE MORE THAN ENOUGH FREQUENCIES FOR ALL THE
STATIONS THEN IN EXISTENCE.  THE WAR ACCELERATED THE DEVELOPMENT OF THE
ART, HOWEVER, AND IN 1921 THE FIRST STANDARD BROADCAST STATIONS WERE
ESTABLISHED.  THEY GREW RAPIDLY IN NUMBER, AND BY 1923 THERE WERE
SEVERAL HUNDRED SUCH STATIONS THROUGHOUT THE COUNTRY.  THE ACT OF 1912
HAD NOT SET ASIDE ANY PARTICULAR FREQUENCIES FOR THE USE OF PRIVATE
BROADCAST STATIONS; CONSEQUENTLY, THE SECRETARY OF COMMERCE SELECTED
TWO FREQUENCIES, 750 AND 833 KILOCYCLES, AND LICENSED ALL STATIONS TO
OPERATE UPON ONE OR THE OTHER OF THESE CHANNELS.  THE NUMBER OF
STATIONS INCREASED SO RAPIDLY, HOWEVER, AND THE SITUATION BECAME SO
CHAOTIC, THAT THE SECRETARY, UPON THE RECOMMENDATION OF THE NATIONAL
RADIO CONFERENCES WHICH MET IN WASHINGTON IN 1923 AND 1924, ESTABLISHED
A POLICY OF ASSIGNING SPECIFIED FREQUENCIES TO PARTICULAR STATIONS. 
THE ENTIRE RADIO SPECTRUM WAS DIVIDED INTO NUMEROUS BANDS, EACH
ALLOCATED TO A PARTICULAR KIND OF SERVICE.  THE FREQUENCIES RANGING
FROM 550 TO 1500 KILOCYCLES (96 CHANNELS IN ALL, SINCE THE CHANNELS
WERE SEPARATED FROM EACH OTHER BY 10 KILOCYCLES) WERE ASSIGNED TO THE
STANDARD BROADCAST STATIONS.  BUT THE PROBLEMS CREATED BY THE
ENORMOUSLY RAPID DEVELOPMENT OF RADIO WERE FAR FROM SOLVED.  THE
INCREASE IN THE NUMBER OF CHANNELS WAS NOT ENOUGH TO TAKE CARE OF THE
CONSTANTLY GROWING NUMBER OF STATIONS.  SINCE THERE WERE MORE STATIONS
THAN AVAILABLE FREQUENCIES, THE SECRETARY OF COMMERCE ATTEMPTED TO FIND
ROOM FOR EVERYBODY BY LIMITING THE POWER AND HOURS OF OPERATION OF
STATIONS IN ORDER THAT SEVERAL STATIONS MIGHT USE THE SAME CHANNEL. 
THE NUMBER OF STATIONS MULTIPLIED SO RAPIDLY, HOWEVER, THAT BY
NOVEMBER, 1925, THERE WERE ALMOST 600 STATIONS IN THE COUNTRY, AND
THERE WERE 175 APPLICATIONS FOR NEW STATIONS.  EVERY CHANNEL IN THE
STANDARD BROADCAST BAND WAS, BY THAT TIME, ALREADY OCCUPIED BY AT LEAST
ONE STATION, AND MANY BY SEVERAL.  THE NEW STATIONS COULD BE
ACCOMMODATED ONLY BY EXTENDING THE STANDARD BROADCAST BAND, AT THE
EXPENSE OF THE OTHER TYPES OF SERVICES, OR BY IMPOSING STILL GREATER
LIMITATIONS UPON TIME AND POWER.  THE NATIONAL RADIO CONFERENCE WHICH
MET IN NOVEMBER, 1925, OPPOSED BOTH OF THESE METHODS AND CALLED UPON
CONGRESS TO REMEDY THE SITUATION THROUGH LEGISLATION. 

THE SECRETARY OF COMMERCE WAS POWERLESS TO DEAL WITH THE SITUATION. 
IT HAD BEEN HELD THAT HE COULD NOT DENY A LICENSE TO AN OTHERWISE
LEGALLY QUALIFIED APPLICANT ON THE GROUND THAT THE PROPOSED STATION
WOULD INTERFERE WITH EXISTING PRIVATE OR GOVERNMENT STATIONS.  HOOVER
V. INTERCITY RADIO CO., 52 APP. D.C. 339, 286 F. 1003.  AND ON APRIL
16, 1926, AN ILLINOIS DISTRICT COURT HELD THAT THE SECRETARY HAD NO
POWER TO IMPOSE RESTRICTIONS AS TO FREQUENCY, POWER, AND HOURS OF
OPERATION, AND THAT A STATION'S USE OF A FREQUENCY NOT ASSIGNED TO IT
WAS NOT A VIOLATION OF THE RADIO ACT OF 1912.  UNITED STATES V. ZENITH
RADIO CORP., 12 F.2D 614.  THIS WAS FOLLOWED ON JULY 8, 1926, BY AN
OPINION OF ACTING ATTORNEY GENERAL DONOVAN THAT THE SECRETARY OF
COMMERCE HAD NO POWER, UNDER THE RADIO ACT OF 1912, TO REGULATE THE
POWER, FREQUENCY OR HOURS OF OPERATION OF STATIONS.  35 OPS.  ATTY. 
GEN. 126.  THE NEXT DAY THE SECRETARY OF COMMERCE ISSUED A STATEMENT
ABANDONING ALL HIS EFFORTS TO REGULATE RADIO AND URGING THAT THE
STATIONS UNDERTAKE SELF-REGULATION. 

BUT THE PLEA OF THE SECRETARY WENT UNHEEDED.  FROM JULY, 1926, TO
FEBRUARY 23, 1927, WHEN CONGRESS ENACTED THE RADIO ACT OF 1927, 44
STAT. 1162, ALMOST 200 NEW STATIONS WENT ON THE AIR.  THESE NEW
STATIONS USED ANY FREQUENCIES THEY DESIRED, REGARDLESS OF THE
INTERFERENCE THEREBY CAUSED TO OTHERS.  EXISTING STATIONS CHANGED TO
OTHER FREQUENCIES AND INCREASED THEIR POWER AND HOURS OF OPERATION AT
WILL.  THE RESULT WAS CONFUSION AND CHAOS.  WITH EVERYBODY ON THE AIR,
NOBODY COULD BE HEARD.  THE SITUATION BECAME SO INTOLERABLE THAT THE
PRESIDENT IN HIS MESSAGE OF DECEMBER 7, 1926, APPEALED TO CONGRESS TO
ENACT A COMPREHENSIVE RADIO LAW: 

"DUE TO THE DECISIONS OF THE COURTS, THE AUTHORITY OF THE DEPARTMENT
(OF COMMERCE) UNDER THE LAW OF 1912 HAS BROKEN DOWN; MANY MORE STATIONS
HAVE BEEN OPERATING THAN CAN BE ACCOMMODATED WITHIN THE LIMITED NUMBER
OF WAVE LENGTHS AVAILABLE; FURTHER STATIONS ARE IN COURSE OF
CONSTRUCTION; MANY STATIONS HAVE DEPARTED FROM THE SCHEME OF
ALLOCATIONS SET DOWN BY THE DEPARTMENT, AND THE WHOLE SERVICE OF THIS
MOST IMPORTANT PUBLIC FUNCTION HAS DRIFTED INTO SUCH CHAOS AS SEEMS
LIKELY, IF NOT REMEDIED, TO DESTROY ITS GREAT VALUE.  I MOST URGENTLY
RECOMMEND THAT THIS LEGISLATION SHOULD BE SPEEDILY ENACTED."  (H. DOC.
483, 69TH CONG., 2D SESS., P. 10.) 

THE PLIGHT INTO WHICH RADIO FELL PRIOR TO 1927 WAS ATTRIBUTABLE TO
CERTAIN BASIC FACTS ABOUT RADIO AS A MEANS OF COMMUNICATION - ITS
FACILITIES ARE LIMITED; THEY ARE NOT AVAILABLE TO ALL WHO MAY WISH TO
USE THEM; THE RADIO SPECTRUM SIMPLY IS NOT LARGE ENOUGH TO ACCOMMODATE
EVERYBODY.  THERE IS A FIXED NATURAL LIMITATION UPON THE NUMBER OF
STATIONS THAT CAN OPERATE WITHOUT INTERFERING WITH ONE ANOTHER.  FN4
REGULATION OF RADIO WAS THEREFORE AS VITAL TO ITS DEVELOPMENT AS
TRAFFIC CONTROL WAS TO THE DEVELOPMENT OF THE AUTOMOBILE.  IN ENACTING
THE RADIO ACT OF 1927, THE FIRST COMPREHENSIVE SCHEME OF CONTROL OVER
RADIO COMMUNICATION, CONGRESS ACTED UPON THE KNOWLEDGE THAT IF THE
POTENTIALITIES OF RADIO WERE NOT TO BE WASTED, REGULATION WAS
ESSENTIAL. 

THE RADIO ACT OF 1927 CREATED THE FEDERAL RADIO COMMISSION, COMPOSED
OF FIVE MEMBERS, AND ENDOWED THE COMMISSION WITH WIDE LICENSING AND
REGULATORY POWERS.  WE DO NOT PAUSE HERE TO ENUMERATE THE SCOPE OF THE
RADIO ACT OF 1927 AND OF THE AUTHORITY ENTRUSTED TO THE RADIO
COMMISSION, FOR THE BASIC PROVISIONS OF THAT ACT ARE INCORPORATED IN
THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1064, 47 U.S.C. SEC. 151 ET
SEQ., THE LEGISLATION IMMEDIATELY BEFORE US.  AS WE NOTED IN FEDERAL
COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S. 134,
137, "IN ITS ESSENTIALS THE COMMUNICATIONS ACT OF 1934(SO FAR AS ITS
PROVISIONS RELATING TO RADIO ARE CONCERNED) DERIVES FROM THE FEDERAL
RADIO ACT OF 1927.  ...  BY THIS ACT CONGRESS, IN ORDER TO PROTECT THE
NATIONAL INTEREST INVOLVED IN THE NEW AND FAR-REACHING SCIENCE OF
BROADCASTING, FORMULATED A UNIFIED AND COMPREHENSIVE REGULATORY SYSTEM
FOR THE INDUSTRY.  THE COMMON FACTORS IN THE ADMINISTRATION OF THE
VARIOUS STATUTES BY WHICH CONGRESS HAD SUPERVISED THE DIFFERENT MODES
OF COMMUNICATION LED TO THE CREATION, IN THE ACT OF 1934, OF THE
COMMUNICATIONS COMMISSION.  BUT THE OBJECTIVES OF THE LEGISLATION HAVE
REMAINED SUBSTANTIALLY UNALTERED SINCE 1927."    SECTION 1 OF THE
COMMUNICATIONS ACT STATES ITS "PURPOSE OF REGULATING INTERSTATE AND
FOREIGN COMMERCE IN COMMUNICATION BY WIRE AND RADIO SO AS TO MAKE
AVAILABLE, SO FAR AS POSSIBLE, TO ALL THE PEOPLE OF THE UNITED STATES A
RAPID, EFFICIENT, NATION-WIDE, AND WORLD-WIDE WIRE AND RADIO
COMMUNICATION SERVICE WITH ADEQUATE FACILITIES AT REASONABLE CHARGES." 
"IT IS THE PURPOSE OF THIS ACT, AMONG OTHER THINGS, TO MAINTAIN THE
CONTROL OF THE UNITED STATES OVER ALL THE CHANNELS OF INTERSTATE AND
FOREIGN RADIO TRANSMISSION; AND TO PROVIDE FOR THE USE OF SUCH
CHANNELS, BUT NOT THE OWNERSHIP THEREOF, BY PERSONS FOR LIMITED PERIODS
OF TIME, UNDER LICENSES GRANTED BY FEDERAL AUTHORITY, AND NO SUCH
LICENSE SHALL BE CONSTRUED TO CREATE ANY RIGHT, BEYOND THE TERMS,
CONDITIONS, AND PERIODS OF THE LICENSE."  TO THAT END A COMMISSION
COMPOSED OF SEVEN MEMBERS WAS CREATED, WITH BROAD LICENSING AND
REGULATORY POWERS. 


"EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, THE COMMISSION FROM TIME
TO TIME, AS PUBLIC CONVENIENCE, INTEREST, OR NECESSITY REQUIRES, SHALL
 

(A)  CLASSIFY RADIO STATIONS; 

(B)  PRESCRIBE THE NATURE OF THE SERVICE TO BE RENDERED BY EACH CLASS
OF LICENSED STATIONS AND EACH STATION WITHIN ANY CLASS; 

    .         .         .         .         . 

(F)  MAKE SUCH REGULATIONS NOT INCONSISTENT WITH LAW AS IT MAY DEEM
NECESSARY TO PREVENT INTERFERENCE BETWEEN STATIONS AND TO CARRY OUT THE
PROVISIONS OF THIS ACT  ...  ; 

(G)  STUDY NEW USES FOR RADIO, PROVIDE FOR EXPERIMENTAL USES OF
FREQUENCIES, AND GENERALLY ENCOURAGE THE LARGER AND MORE EFFECTIVE USE
OF RADIO IN THE PUBLIC INTEREST; 

     .         .         .         .       . 

(I)  HAVE AUTHORITY TO MAKE SPECIAL REGULATIONS APPLICABLE TO RADIO
STATIONS ENGAGED IN CHAIN BROADCASTING; 

  .         .         .         .         . 

(R)  MAKE SUCH RULES AND REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS
AND CONDITIONS, NOT INCONSISTENT WITH LAW, AS MAY BE NECESSARY TO CARRY
OUT THE PROVISIONS OF THIS ACT.  ...  " 

THE CRITERION GOVERNING THE EXERCISE OF THE COMMISSION'S LICENSING
POWER IS THE "PUBLIC INTEREST, CONVENIENCE, OR NECESSITY."  SECS.
307(A)(D), 309(A), 310, 312.  IN ADDITION, SEC. 307(B) DIRECTS THE
COMMISSION THAT "IN CONSIDERING APPLICATIONS FOR LICENSES, AND
MODIFICATIONS AND RENEWALS THEREOF, WHEN AND INSOFAR AS THERE IS DEMAND
FOR THE SAME, THE COMMISSION SHALL MAKE SUCH DISTRIBUTION OF LICENSES,
FREQUENCIES, HOURS OF OPERATION, AND OF POWER AMONG THE SEVERAL STATES
AND COMMUNITIES AS TO PROVIDE A FAIR, EFFICIENT, AND EQUITABLE
DISTRIBUTION OF RADIO SERVICE TO EACH OF THE SAME." 

THE ACT ITSELF ESTABLISHES THAT THE COMMISSION'S POWERS ARE NOT
LIMITED TO THE ENGINEERING AND TECHNICAL ASPECTS OF REGULATION OF RADIO
COMMUNICATION.  YET WE ARE ASKED TO REGARD THE COMMISSION AS A KIND OF
TRAFFIC OFFICER, POLICING THE WAVE LENGTHS TO PREVENT STATIONS FROM
INTERFERING WITH EACH OTHER.  BUT THE ACT DOES NOT RESTRICT THE
COMMISSION MERELY TO SUPERVISION OF THE TRAFFIC.  IT PUTS UPON THE
COMMISSION THE BURDEN OF DETERMINING THE COMPOSITION OF THAT TRAFFIC. 
THE FACILITIES OF RADIO ARE NOT LARGE ENOUGH TO ACCOMMODATE ALL WHO
WISH TO USE THEM.  METHODS MUST BE DEVISED FOR CHOOSING FROM AMONG THE
MANY WHO APPLY.  AND SINCE CONGRESS ITSELF COULD NOT DO THIS, IT
COMMITTED THE TASK TO THE COMMISSION. 

THE COMMISSION WAS, HOWEVER, NOT LEFT AT LARGE IN PERFORMING THIS
DUTY.  THE TOUCHSTONE PROVIDED BY CONGRESS WAS THE "PUBLIC INTEREST,
CONVENIENCE, OR NECESSITY," A CRITERION WHICH "IS AS CONCRETE AS THE
COMPLICATED FACTORS FOR JUDGMENT IN SUCH A FIELD OF DELEGATED AUTHORITY
PERMIT."  FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO.,
309 U.S. 134, 138.  "THIS CRITERION IS NOT TO BE INTERPRETED AS SETTING
UP A STANDARD SO INDEFINITE AS TO CONFER AN UNLIMITED POWER.  COMPARE
NEW YORK CENTRAL SECURITIES CO. V. UNITED STATES, 287 U.S. 12, 24.  THE
REQUIREMENT IS TO BE INTERPRETED BY ITS CONTEXT, BY THE NATURE OF RADIO
TRANSMISSION AND RECEPTION, BY THE SCOPE, CHARACTER AND QUALITY OF
SERVICES  ...  "  FEDERAL RADIO COMM'N V. NELSON BROS. CO., 289 U.S.
266, 285. 

THE "PUBLIC INTEREST" TO BE SERVED UNDER THE COMMUNICATIONS ACT IS
THUS THE INTEREST OF THE LISTENING PUBLIC IN "THE LARGER AND MORE
EFFECTIVE USE OF RADIO."  SEC. 303(G).  THE FACILITIES OF RADIO ARE
LIMITED AND THEREFORE PRECIOUS; THEY CANNOT BE LEFT TO WASTEFUL USE
WITHOUT DETRIMENT TO THE PUBLIC INTEREST.  "AN IMPORTANT ELEMENT OF
PUBLIC INTEREST AND CONVENIENCE AFFECTING THE ISSUE OF A LICENSE IS THE
ABILITY OF THE LICENSEE TO RENDER THE BEST PRACTICABLE SERVICE TO THE
COMMUNITY REACHED BY HIS BROADCASTS."  FEDERAL COMMUNICATIONS COMM'N V.
SANDERS RADIO STATION, 309 U.S. 470, 475.  THE COMMISSION'S LICENSING
FUNCTION CANNOT BE DISCHARGED, THEREFORE, MERELY BY FINDING THAT THERE
ARE NO TECHNOLOGICAL OBJECTIONS TO THE GRANTING OF A LICENSE.  IF THE
CRITERION OF "PUBLIC INTEREST" WERE LIMITED TO SUCH MATTERS, HOW COULD
THE COMMISSION CHOOSE BETWEEN TWO APPLICANTS FOR THE SAME FACILITIES,
EACH OF WHOM IS FINANCIALLY AND TECHNICALLY QUALIFIED TO OPERATE A
STATION?  SINCE THE VERY INCEPTION OF FEDERAL REGULATION BY RADIO,
COMPARATIVE CONSIDERATIONS AS TO THE SERVICES TO BE RENDERED HAVE
GOVERNED THE APPLICATION OF THE STANDARD OF "PUBLIC INTEREST,
CONVENIENCE, OR NECESSITY."  SEE FEDERAL COMMUNICATIONS COMM'N V.
POTTSVILLE BROADCASTING CO., 309 U.S. 134, 138 N. 2. 

THE AVOWED AIM OF THE COMMUNICATIONS ACT OF 1934 WAS TO SECURE THE
MAXIMUM BENEFITS OF RADIO TO ALL THE PEOPLE OF THE UNITED STATES.  TO
THAT END CONGRESS ENDOWED THE COMMUNICATIONS COMMISSION WITH
COMPREHENSIVE POWERS TO PROMOTE AND REALIZE THE VAST POTENTIALITIES OF
RADIO.  SECTION 303(G) PROVIDES THAT THE COMMISSION SHALL "GENERALLY
ENCOURAGE THE LARGER AND MORE EFFECTIVE USE OF RADIO IN THE PUBLIC
INTEREST"; SUBSECTION (I) GIVES THE COMMISSION SPECIFIC "AUTHORITY TO
MAKE SPECIAL REGULATIONS APPLICABLE TO RADIO STATIONS ENGAGED IN CHAIN
BROADCASTING"; AND SUBSECTION (R) EMPOWERS IT TO ADOPT "SUCH RULES AND
REGULATIONS AND PRESCRIBE SUCH RESTRICTIONS AND CONDITIONS, NOT
INCONSISTENT WITH LAW, AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS
OF THIS ACT." 

THESE PROVISIONS, INDIVIDUALLY AND IN THE AGGREGATE, PRECLUDE THE
NOTION THAT THE COMMISSION IS EMPOWERED TO DEAL ONLY WITH TECHNICAL AND
ENGINEERING IMPEDIMENTS TO THE "LARGER AND MORE EFFECTIVE USE OF RADIO
IN THE PUBLIC INTEREST."  WE CANNOT FIND IN THE ACT ANY SUCH
RESTRICTION OF THE COMMISSION'S AUTHORITY.  SUPPOSE, FOR EXAMPLE, THAT
A COMMUNITY CAN, BECAUSE OF PHYSICAL LIMITATIONS, BE ASSIGNED ONLY TWO
STATIONS.  THAT COMMUNITY MIGHT BE DEPRIVED OF EFFECTIVE SERVICE IN ANY
ONE OF SEVERAL WAYS.  MORE POWERFUL STATIONS IN NEARBY CITIES MIGHT
BLANKET OUT THE SIGNALS OF THE LOCAL STATIONS SO THAT THEY COULD NOT BE
HEARD AT ALL.  THE STATIONS MIGHT INTERFERE WITH EACH OTHER SO THAT
NEITHER COULD BE CLEARLY HEARD.  ONE STATION MIGHT DOMINATE THE OTHER
WITH THE POWER OF ITS SIGNAL.  BUT THE COMMUNITY COULD BE DEPRIVED OF
GOOD RADIO SERVICE IN WAYS LESS CRUDE.  ONE MAN, FINANCIALLY AND
TECHNICALLY QUALIFIED, MIGHT APPLY FOR AND OBTAIN THE LICENSES OF BOTH
STATIONS AND PRESENT A SINGLE SERVICE OVER THE TWO STATIONS, THUS
WASTING A FREQUENCY OTHERWISE AVAILABLE TO THE AREA.  THE LANGUAGE OF
THE ACT DOES NOT WITHDRAW SUCH A SITUATION FROM THE LICENSING AND
REGULATORY POWERS OF THE COMMISSION, AND THERE IS NO EVIDENCE THAT
CONGRESS DID NOT MEAN ITS BROAD LANGUAGE TO CARRY THE AUTHORITY IT
EXPRESSES. 

IN ESSENCE, THE CHAIN BROADCASTING REGULATIONS REPRESENT A
PARTICULARIZATION OF THE COMMISSION'S CONCEPTION OF THE "PUBLIC
INTEREST" SOUGHT TO BE SAFEGUARDED BY CONGRESS IN ENACTING THE
COMMUNICATIONS ACT OF 1934.  THE BASIC CONSIDERATION OF POLICY
UNDERLYING THE REGULATIONS IS SUCCINCTLY STATED IN ITS REPORT:  "WITH
THE NUMBER OF RADIO CHANNELS LIMITED BY NATURAL FACTORS, THE PUBLIC
INTEREST DEMANDS THAT THOSE WHO ARE ENTRUSTED WITH THE AVAILABLE
CHANNELS SHALL MAKE THE FULLEST AND MOST EFFECTIVE USE OF THEM.  IF A
LICENSEE ENTERS INTO A CONTRACT WITH A NETWORK ORGANIZATION WHICH
LIMITS HIS ABILITY TO MAKE THE BEST USE OF THE RADIO FACILITY ASSIGNED
HIM, HE IS NOT SERVING THE PUBLIC INTEREST.  ...  THE NET EFFECT (OF
THE PRACTICES DISCLOSED BY THE INVESTIGATION) HAS BEEN THAT
BROADCASTING SERVICE HAS BEEN MAINTAINED AT A LEVEL BELOW THAT POSSIBLE
UNDER A SYSTEM OF FREE COMPETITION.  HAVING SO FOUND, WE WOULD BE
REMISS IN OUR STATUTORY DUTY OF ENCOURAGING 'THE LARGER AND MORE
EFFECTIVE USE OF RADIO IN THE PUBLIC INTEREST' IF WE WERE TO GRANT
LICENSES TO PERSONS WHO PERSIST IN THESE PRACTICES."  (REPORT, PP. 81,
82.) 

WE WOULD BE ASSERTING OUR PERSONAL VIEWS REGARDING THE EFFECTIVE
UTILIZATION OF RADIO WERE WE TO DENY THAT THE COMMISSION WAS ENTITLED
TO FIND THAT THE LARGE PUBLIC AIMS OF THE COMMUNICATIONS ACT OF 1934
COMPREHEND THE CONSIDERATIONS WHICH MOVED THE COMMISSION IN
PROMULGATING THE CHAIN BROADCASTING REGULATIONS.  TRUE ENOUGH, THE ACT
DOES NOT EXPLICITLY SAY THAT THE COMMISSION SHALL HAVE POWER TO DEAL
WITH NETWORK PRACTICES FOUND INIMICAL TO THE PUBLIC INTEREST.  BUT
CONGRESS WAS ACTING IN A FIELD OF REGULATION WHICH WAS BOTH NEW AND
DYNAMIC.  "CONGRESS MOVED UNDER THE SPUR OF A WIDESPREAD FEAR THAT IN
THE ABSENCE OF GOVERNMENTAL CONTROL THE PUBLIC INTEREST MIGHT BE
SUBORDINATED TO MONOPOLISTIC DOMINATION IN THE BROADCASTING FIELD." 
FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S.
134, 137.  IN THE CONTEXT OF THE DEVELOPING PROBLEMS TO WHICH IT WAS
DIRECTED, THE ACT GAVE THE COMMISSION NOT NIGGARDLY BUT EXPANSIVE
POWERS.  IT WAS GIVEN A COMPREHENSIVE MANDATE TO "ENCOURAGE THE LARGER
AND MORE EFFECTIVE USE OF RADIO IN THE PUBLIC INTEREST," IF NEED BE, BY
MAKING "SPECIAL REGULATIONS APPLICABLE TO RADIO STATIONS ENGAGED IN
CHAIN BROADCASTING."  SEC. 303(G)(I). 

GENERALITIES UNRELATED TO THE LIVING PROBLEMS OF RADIO COMMUNICATION
OF COURSE CANNOT JUSTIFY EXERCISES OF POWER BY THE COMMISSION.  EQUALLY
SO, GENERALITIES EMPTY OF ALL CONCRETE CONSIDERATIONS OF THE ACTUAL
BEARING OF REGULATIONS PROMULGATED BY THE COMMISSION TO THE
SUBJECTMATTER ENTRUSTED TO IT, CANNOT STRIKE DOWN EXERCISES OF POWER BY
THE COMMISSION.  WHILE CONGRESS DID NOT GIVE THE COMMISSION UNFETTERED
DISCRETION TO REGULATE ALL PHASES OF THE RADIO INDUSTRY, IT DID NOT
FRUSTRATE THE PURPOSES FOR WHICH THE COMMUNICATIONS ACT OF 1934 WAS
BROUGHT INTO BEING BY ATTEMPTING AN ITEMIZED CATALOGUE OF THE SPECIFIC
MANIFESTATIONS OF THE GENERAL PROBLEMS FOR THE SOLUTION OF WHICH IT WAS
ESTABLISHING A REGULATORY AGENCY.  THAT WOULD HAVE STEREOTYPED THE
POWERS OF THE COMMISSION TO SPECIFIC DETAILS IN REGULATING A FIELD OF
ENTERPRISE THE DOMINANT CHARACTERISTIC OF WHICH WAS THE RAPID PACE OF
ITS UNFOLDING.  AND SO CONGRESS DID WHAT EXPERIENCE HAD TAUGHT IT IN
SIMILAR ATTEMPTS AT REGULATION, EVEN IN FIELDS WHERE THE SUBJECT-MATTER
OF REGULATION WAS FAR LESS FLUID AND DYNAMIC THAN RADIO.  THE ESSENCE
OF THAT EXPERIENCE WAS TO DEFINE BROAD AREAS FOR REGULATION AND TO
ESTABLISH STANDARDS FOR JUDGMENT ADEQUATELY RELATED IN THEIR
APPLICATION TO THE PROBLEMS TO BE SOLVED. 

FOR THE CRAMPING CONSTRUCTION OF THE ACT PRESSED UPON US, SUPPORT
CANNOT BE FOUND IN ITS LEGISLATIVE HISTORY.  THE PRINCIPAL ARGUMENT IS
THAT SEC. 303(I), EMPOWERING THE COMMISSION "TO MAKE SPECIAL
REGULATIONS APPLICABLE TO RADIO STATIONS ENGAGED IN CHAIN
BROADCASTING," INTENDED TO RESTRICT THE SCOPE OF THE COMMISSION'S
POWERS TO THE TECHNICAL AND ENGINEERING ASPECTS OF CHAIN BROADCASTING. 
THIS PROVISION COMES FROM SEC. 4(H) OF THE RADIO ACT OF 1927.  IT WAS
INTRODUCED INTO THE LEGISLATION AS A SENATE COMMITTEE AMENDMENT TO THE
HOUSE BILL (H.R. 9971, 69TH CONG., 1ST SESS.) THIS AMENDMENT ORIGINALLY
READ AS FOLLOWS: 

"(C)  THE COMMISSION, FROM TIME TO TIME, AS PUBLIC CONVENIENCE,
INTEREST, OR NECESSITY REQUIRES, SHALL - 

.         .         .         .         . 

(J)  WHEN STATIONS ARE CONNECTED BY WIRE FOR CHAIN BROADCASTING,
DETERMINE THE POWER EACH STATION SHALL USE AND THE WAVE LENGTHS TO BE
USED DURING THE TIME STATIONS ARE SO CONNECTED AND SO OPERATED, AND
MAKE ALL OTHER REGULATIONS NECESSARY IN THE INTEREST OF EQUITABLE RADIO
SERVICE TO THE LISTENERS IN THE COMMUNITIES OR AREAS AFFECTED BY CHAIN
BROADCASTING." 

THE REPORT OF THE SENATE COMMITTEE ON INTERSTATE COMMERCE, WHICH
SUBMITTED THIS AMENDMENT, STATED THAT UNDER THE BILL THE COMMISSION WAS
GIVEN "COMPLETE AUTHORITY  ...  TO CONTROL CHAIN BROADCASTING."  SEN.
REP. NO. 772, 69TH CONG., 1ST SESS., P. 3.  THE BILL AS THUS AMENDED
WAS PASSED BY THE SENATE, AND THEN SENT TO CONFERENCE.  THE BILL THAT
EMERGED FROM THE CONFERENCE COMMITTEE, AND WHICH BECAME THE RADIO ACT
OF 1927, PHRASED THE AMENDMENT IN THE GENERAL TERMS NOW CONTAINED IN
SEC. 303(I) OF THE 1934 ACT:  THE COMMISSION WAS AUTHORIZED "TO MAKE
SPECIAL REGULATIONS APPLICABLE TO RADIO STATIONS ENGAGED IN CHAIN
BROADCASTING."  THE CONFERENCE REPORTS DO NOT GIVE ANY EXPLANATION OF
THIS PARTICULAR CHANGE IN PHRASING, BUT THEY DO STATE THAT THE
JURISDICTION CONFERRED UPON THE COMMISSION BY THE CONFERENCE BILL WAS
SUBSTANTIALLY IDENTICAL WITH THAT CONFERRED BY THE BILL PASSED BY THE
SENATE.  SEE SEN. DOC. NO. 200, 69TH CONG., 2D SESS., P. 17; H. REP.
1886, 69TH CONG., 2D SESS., P. 17.  WE AGREE WITH THE DISTRICT COURT
THAT IN VIEW OF THIS LEGISLATIVE HISTORY, SEC. 303(I) CANNOT BE
CONSTRUED AS NO BROADER THAN THE FIRST CLAUSE OF THE SENATE AMENDMENT,
WHICH LIMITED THE COMMISSION'S AUTHORITY TO THE TECHNICAL AND
ENGINEERING PHASES OF CHAIN BROADCASTING.  THERE IS NO BASIS FOR
ASSUMING THAT THE CONFERENCE INTENDED TO PRESERVE THE FIRST CLAUSE,
WHICH WAS OF LIMITED SCOPE, AND ABANDON THE SECOND CLAUSE, WHICH WAS OF
GENERAL SCOPE, BY AGREEING UPON A PROVISION WHICH WAS BROADER AND MORE
COMPREHENSIVE THAN THOSE IT SUPPLANTED.  FN5    A TOTALLY DIFFERENT
SOURCE OF ATTACK UPON THE REGULATIONS IS FOUND IN SEC. 311 OF THE ACT,
WHICH AUTHORIZES THE COMMISSION TO WITHHOLD LICENSES FROM PERSONS
CONVICTED OF HAVING VIOLATED THE ANTI-TRUST LAWS.  TWO CONTENTIONS ARE
MADE - FIRST, THAT THIS PROVISION PUTS CONSIDERATIONS RELATING TO
COMPETITION OUTSIDE THE COMMISSION'S CONCERN BEFORE AN APPLICANT HAS
BEEN CONVICTED OF MONOPOLY OR OTHER RESTRAINTS OF TRADE, AND SECOND,
THAT, IN ANY EVENT, THE COMMISSION MISCONCEIVED THE SCOPE OF ITS POWERS
UNDER SEC. 311 IN ISSUING THE REGULATIONS.  BOTH OF THESE CONTENTIONS
ARE UNFOUNDED.  SECTION 311 DERIVES FROM SEC. 13 OF THE RADIO ACT OF
1927, WHICH EXPRESSLY COMMANDED, RATHER THAN MERELY AUTHORIZED, THE
COMMISSION TO REFUSE A LICENSE TO ANY PERSON JUDICIALLY FOUND GUILTY OF
HAVING VIOLATED THE ANTI-TRUST LAWS.  THE CHANGE IN THE 1934 ACT WAS
MADE, IN THE WORDS OF SENATOR DILL, THE MANAGER OF THE LEGISLATION IN
THE SENATE, BECAUSE "IT SEEMED FAIR TO THE COMMITTEE TO DO THAT."  78
CONG. REC. 8825.  THE COMMISSION WAS THUS PERMITTED TO EXERCISE ITS
JUDGMENT AS TO WHETHER VIOLATION OF THE ANTI-TRUST LAWS DISQUALIFIED AN
APPLICANT FROM OPERATING A STATION IN THE "PUBLIC INTEREST."  WE AGREE
WITH THE DISTRICT COURT THAT "THE NECESSARY IMPLICATION FROM THIS
(AMENDMENT IN 1934) WAS THAT THE COMMISSION MIGHT INFER FROM THE FACT
THAT THE APPLICANT HAD IN THE PAST TRIED TO MONOPOLIZE RADIO, OR HAD
ENGAGED IN UNFAIR METHODS OF COMPETITION, THAT THE DISPOSITION SO
MANIFESTED WOULD CONTINUE AND THAT IF IT DID IT WOULD MAKE HIM AN UNFIT
LICENSEE."  47 F.SUPP.  940, 944. 

THAT THE COMMISSION MAY REFUSE TO GRANT A LICENSE TO PERSONS ADJUDGED
GUILTY IN A COURT OF LAW OF CONDUCT IN VIOLATION OF THE ANTI-TRUST LAWS
CERTAINLY DOES NOT RENDER IRRELEVANT CONSIDERATION BY THE COMMISSION OF
THE EFFECT OF SUCH CONDUCT UPON THE "PUBLIC INTEREST, CONVENIENCE, OR
NECESSITY."  A LICENSEE CHARGED WITH PRACTICES IN CONTRAVENTION OF THIS
STANDARD CANNOT CONTINUE TO HOLD HIS LICENSE MERELY BECAUSE HIS CONDUCT
IS ALSO IN VIOLATION OF THE ANTI-TRUST LAWS AND HE HAS NOT YET BEEN
PROCEEDED AGAINST AND CONVICTED.  BY CLARIFYING IN SEC. 311 THE SCOPE
OF THE COMMISSION'S AUTHORITY IN DEALING WITH PERSONS CONVICTED OF
VIOLATING THE ANTI-TRUST LAWS, CONGRESS CAN HARDLY BE DEEMED TO HAVE
LIMITED THE CONCEPT OF "PUBLIC INTEREST" SO AS TO EXCLUDE ALL
CONSIDERATIONS RELATING TO MONOPOLY AND UNREASONABLE RESTRAINTS UPON
COMMERCE.  NOTHING IN THE PROVISIONS OR HISTORY OF THE ACT LENDS
SUPPORT TO THE INFERENCE THAT THE COMMISSION WAS DENIED THE POWER TO
REFUSE A LICENSE TO A STATION NOT OPERATING IN THE "PUBLIC INTEREST,"
MERELY BECAUSE ITS MISCONDUCT HAPPENED TO BE AN UNCONVICTED VIOLATION
OF THE ANTI-TRUST LAWS. 

ALTERNATIVELY, IT IS URGED THAT THE REGULATIONS CONSTITUTE AN ULTRA
VIRES ATTEMPT BY THE COMMISSION TO ENFORCE THE ANTI-TRUST LAWS, AND
THAT THE ENFORCEMENT OF THE ANTI-TRUST LAWS IS THE PROVINCE NOT OF THE
COMMISSION BUT OF THE ATTORNEY GENERAL AND THE COURTS.  THIS CONTENTION
MISCONCEIVES THE BASIS OF THE COMMISSION'S ACTION.  THE COMMISSION'S
REPORT INDICATES PLAINLY ENOUGH THAT THE COMMISSION WAS NOT ATTEMPTING
TO ADMINISTER THE ANTI-TRUST LAWS: 

"THE PROHIBITIONS OF THE SHERMAN ACT APPLY TO BROADCASTING.  THIS
COMMISSION, ALTHOUGH NOT CHARGED WITH THE DUTY OF ENFORCING THAT LAW,
SHOULD ADMINISTER ITS REGULATORY POWERS WITH RESPECT TO BROADCASTING IN
THE LIGHT OF THE PURPOSES WHICH THE SHERMAN ACT WAS DESIGNED TO
ACHIEVE.  ... WHILE MANY OF THE NETWORK PRACTICES RAISE SERIOUS
QUESTIONS UNDER THE ANTITRUST LAWS, OUR JURISDICTION DOES NOT DEPEND ON
A SHOWING THAT THEY DO IN FACT CONSTITUTE A VIOLATION OF THE ANTITRUST
LAWS.  IT IS NOT OUR FUNCTION TO APPLY THE ANTITRUST LAWS AS SUCH.  IT
IS OUR DUTY, HOWEVER, TO REFUSE LICENSES OR RENEWALS TO ANY PERSON WHO
ENGAGES OR PROPOSES TO ENGAGE IN PRACTICES WHICH WILL PREVENT EITHER
HIMSELF OR OTHER LICENSEES OR BOTH FROM MAKING THE FULLEST USE OF RADIO
FACILITIES.  THIS IS THE STANDARD OF PUBLIC INTEREST, CONVENIENCE OR
NECESSITY WHICH WE MUST APPLY TO ALL APPLICATIONS FOR LICENSES AND
RENEWALS.  ...  WE DO NOT PREDICATE OUR JURISDICTION TO ISSUE THE
REGULATIONS ON THE GROUND THAT THE NETWORK PRACTICES VIOLATE THE
ANTITRUST LAWS.  WE ARE ISSUING THESE REGULATIONS BECAUSE WE HAVE FOUND
THAT THE NETWORK PRACTICES PREVENT THE MAXIMUM UTILIZATION OF RADIO
FACILITIES IN THE PUBLIC INTEREST."  (REPORT, PP. 46, 83, 83 N. 3.) 

WE CONCLUDE, THEREFORE, THAT THE COMMUNICATIONS ACT OF 1934
AUTHORIZED THE COMMISSION TO PROMULGATE REGULATIONS DESIGNED TO CORRECT
THE ABUSES DISCLOSED BY ITS INVESTIGATION OF CHAIN BROADCASTING.  THERE
REMAINS FOR CONSIDERATION THE CLAIM THAT THE COMMISSION'S EXERCISE OF
SUCH AUTHORITY WAS UNLAWFUL. 

THE REGULATIONS ARE ASSAILED AS "ARBITRARY AND CAPRICIOUS."  IF THIS
CONTENTION MEANS THAT THE REGULATIONS ARE UNWISE, THAT THEY ARE NOT
LIKELY TO SUCCEED IN ACCOMPLISHING WHAT THE COMMISSION INTENDED, WE CAN
SAY ONLY THAT THE APPELLANTS HAVE SELECTED THE WRONG FORUM FOR SUCH A
PLEA.  WHAT WAS SAID IN BOARD OF TRADE V. UNITED STATES, 314 U.S. 534,
548, IS RELEVANT HERE:  "WE CERTAINLY HAVE NEITHER TECHNICAL COMPETENCE
NOR LEGAL AUTHORITY TO PRONOUNCE UPON THE WISDOM OF THE COURSE TAKEN BY
THE COMMISSION."  OUR DUTY IS AT AN END WHEN WE FIND THAT THE ACTION OF
THE COMMISSION WAS BASED UPON FINDINGS SUPPORTED BY EVIDENCE, AND WAS
MADE PURSUANT TO AUTHORITY GRANTED BY CONGRESS.  IT IS NOT FOR US TO
SAY THAT THE "PUBLIC INTEREST" WILL BE FURTHERED OR RETARDED BY THE
CHAIN BROADCASTING REGULATIONS.  THE RESPONSIBILITY BELONGS TO THE
CONGRESS FOR THE GRANT OF VALID LEGISLATIVE AUTHORITY AND TO THE
COMMISSION FOR ITS EXERCISE. 

IT WOULD BE SHEER DOGMATISM TO SAY THAT THE COMMISSION MADE OUT NO
CASE FOR ITS ALLOWABLE DISCRETION IN FORMULATING THESE REGULATIONS. 
ITS LONG INVESTIGATION DISCLOSED THE EXISTENCES OF PRACTICES WHICH IT
REGARDED AS CONTRARY TO THE "PUBLIC INTEREST."  THE COMMISSION KNEW
THAT THE WISDOM OF ANY ACTION IT TOOK WOULD HAVE TO BE TESTED BY
EXPERIENCE:  "WE ARE UNDER NO ILLUSION THAT THE REGULATIONS WE ARE
ADOPTING WILL SOLVE ALL QUESTIONS OF PUBLIC INTEREST WITH RESPECT TO
THE NETWORK SYSTEM OF PROGRAM DISTRIBUTION.  ...  THE PROBLEMS IN THE
NETWORK FIELD ARE INTERDEPENDENT, AND THE STEPS NOW TAKEN MAY PERHAPS
OPERATE AS A PARTIAL SOLUTION OF PROBLEMS NOT DIRECTLY DEALT WITH AT
THIS TIME.  SUCH PROBLEMS MAY BE EXAMINED AGAIN AT SOME FUTURE TIME
AFTER THE REGULATIONS HERE ADOPTED HAVE BEEN GIVEN A FAIR TRIAL." 
(REPORT, P. 88.)  THE PROBLEMS WITH WHICH THE COMMISSION ATTEMPTED TO
DEAL COULD NOT BE SOLVED AT ONCE AND FOR ALL TIME BY RIGID RULES-OF
THUMB.  THE COMMISSION THEREFORE DID NOT BIND ITSELF INFLEXIBLY TO THE
LICENSING POLICIES EXPRESSED IN THE REGULATIONS.  IN EACH CASE THAT
COMES BEFORE IT THE COMMISSION MUST STILL EXERCISE AN ULTIMATE JUDGMENT
WHETHER THE GRANT OF A LICENSE WOULD SERVE THE "PUBLIC INTEREST,
CONVENIENCE, OR NECESSITY."  IF TIME AND CHANGING CIRCUMSTANCES REVEAL
THAT THE "PUBLIC INTEREST" IS NOT SERVED BY APPLICATION OF THE
REGULATIONS, IT MUST BE ASSUMED THAT THE COMMISSION WILL ACT IN
ACCORDANCE WITH ITS STATUTORY OBLIGATIONS. 

SINCE THERE IS NO BASIS FOR ANY CLAIM THAT THE COMMISSION FAILED TO
OBSERVE PROCEDURAL SAFEGUARDS REQUIRED BY LAW, WE REACH THE CONTENTION
THAT THE REGULATIONS SHOULD BE DENIED ENFORCEMENT ON CONSTITUTIONAL
GROUNDS.  HERE, AS IN NEW YORK CENTRAL SECURITIES CORP. V. UNITED
STATES, 287 U.S. 12, 24-25, THE CLAIM IS MADE THAT THE STANDARD OF
"PUBLIC INTEREST" GOVERNING THE EXERCISE OF THE POWERS DELEGATED TO THE
COMMISSION BY CONGRESS IS SO VAGUE AND INDEFINITE THAT, IF IT BE
CONSTRUED AS COMPREHENSIVELY AS THE WORDS ALONE PERMIT, THE DELEGATION
OF LEGISLATIVE AUTHORITY IS UNCONSTITUTIONAL.  BUT, AS WE HELD IN THAT
CASE, "IT IS A MISTAKEN ASSUMPTION THAT THIS IS A MERE GENERAL
REFERENCE TO PUBLIC WELFARE WITHOUT ANY STANDARD TO GUIDE
DETERMINATIONS.  THE PURPOSE OF THE ACT, THE REQUIREMENTS IT IMPOSES,
AND THE CONTEXT OF THE PROVISION IN QUESTION SHOW THE CONTRARY."  IBID.
SEE FEDERAL RADIO COMM'N V. NELSON BROS. CO., 289 U.S. 266, 285;
FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S.
134, 137-38.  COMPARE PANAMA REFINING CO. V. RYAN, 293 U.S. 388, 428;
INTERMOUNTAIN RATE CASES, 234 U.S. 476, 486-89; UNITED STATES V.
LOWDEN, 308 U.S. 225. 

WE COME, FINALLY, TO AN APPEAL TO THE FIRST AMENDMENT.  THE
REGULATIONS, EVEN IF VALID IN ALL OTHER RESPECTS, MUST FALL BECAUSE
THEY ABRIDGE, SAY THE APPELLANTS, THEIR RIGHT OF FREE SPEECH.  IF THAT
BE SO, IT WOULD FOLLOW THAT EVERY PERSON WHOSE APPLICATION FOR A
LICENSE TO OPERATE A STATION IS DENIED BY THE COMMISSION IS THEREBY
DENIED HIS CONSTITUTIONAL RIGHT OF FREE SPEECH.  FREEDOM OF UTTERANCE
IS ABRIDGED TO MANY WHO WISH TO USE THE LIMITED FACILITIES OF RADIO. 
UNLIKE OTHER MODES OF EXPRESSION, RADIO INHERENTLY IS NOT AVAILABLE TO
ALL.  THAT IS ITS UNIQUE CHARACTERISTIC, AND THAT IS WHY, UNLIKE OTHER
MODES OF EXPRESSION, IT IS SUBJECT TO GOVERNMENTAL REGULATION.  BECAUSE
IT CANNOT BE USED BY ALL, SOME WHO WISH TO USE IT MUST BE DENIED.  BUT
CONGRESS DID NOT AUTHORIZE THE COMMISSION TO CHOOSE AMONG APPLICANTS
UPON THE BASIS OF THEIR POLITICAL, ECONOMIC OR SOCIAL VIEWS, OR UPON
ANY OTHER CAPRICIOUS BASIS.  IF IT DID, OR IF THE COMMISSION BY THESE
REGULATIONS PROPOSED A CHOICE AMONG APPLICANTS UPON SOME SUCH BASIS,
THE ISSUE BEFORE US WOULD BE WHOLLY DIFFERENT.  THE QUESTION HERE IS
SIMPLY WHETHER THE COMMISSION, BY ANNOUNCING THAT IT WILL REFUSE
LICENSES TO PERSONS WHO ENGAGE IN SPECIFIED NETWORK PRACTICES (A BASIS
FOR CHOICE WHICH WE HOLD IS COMPREHENDED WITHIN THE STATUTORY CRITERION
OF "PUBLIC INTEREST"), IS THEREBY DENYING SUCH PERSONS THE
CONSTITUTIONAL RIGHT OF FREE SPEECH.  THE RIGHT OF FREE SPEECH DOES NOT
INCLUDE, HOWEVER, THE RIGHT TO USE THE FACILITIES OF RADIO WITHOUT A
LICENSE.  THE LICENSING SYSTEM ESTABLISHED BY CONGRESS IN THE
COMMUNICATIONS ACT OF 1934 WAS A PROPER EXERCISE OF ITS POWER OVER
COMMERCE.  THE STANDARD IT PROVIDED FOR THE LICENSING OF STATIONS WAS
THE "PUBLIC INTEREST, CONVENIENCE, OR NECESSITY."  DENIAL OF A STATION
LICENSE ON THAT GROUND, IF VALID UNDER THE ACT, IS NOT A DENIAL OF FREE
SPEECH. 

A PROCEDURAL POINT CALLS FOR JUST A WORD.  THE DISTRICT COURT, BY
GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT, DISPOSED OF THE
CASE UPON THE PLEADINGS AND UPON THE RECORD MADE BEFORE THE
COMMISSION.  THE COURT BELOW CORRECTLY HELD THAT ITS INQUIRY WAS
LIMITED TO REVIEW OF THE EVIDENCE BEFORE THE COMMISSION.  TRIAL DE NOVO
OF THE MATTERS HEARD BY THE COMMISSION AND DEALT WITH IN ITS REPORT
WOULD HAVE BEEN IMPROPER.  SEE TAGG BROS. V. UNITED STATES, 280 U.S.
420; ACKER V. UNITED STATES, 298 U.S. 426.  AFFIRMED. 

FN1  CHAIN BROADCASTING IS DEFINED IN SEC. 3(P) OF THE COMMUNICATIONS
ACT OF 1934 AS THE "SIMULTANEOUS BROADCASTING OF AN IDENTICAL PROGRAM
BY TWO OR MORE CONNECTED STATIONS."  IN ACTUAL PRACTICE, PROGRAMS ARE
TRANSMITTED BY WIRE, USUALLY LEASED TELEPHONE LINES, FROM THEIR POINT
OF ORIGINATION TO EACH STATION IN THE NETWORK FOR SIMULTANEOUS
BROADCAST OVER THE AIR. 

FN2  STATION LICENSES ISSUED BY THE COMMISSION NORMALLY LAST TWO
YEARS.  SECTION 3.34 OF THE COMMISSION'S RULES AND REGULATIONS
GOVERNING STANDARD AND HIGH-FREQUENCY BROADCAST STATIONS, AS AMENDED
OCTOBER 14, 1941. 

FN3  THE HISTORY OF FEDERAL REGULATION OF RADIO COMMUNICATION IS
SUMMARIZED IN HERRING AND GROSS, TELECOMMUNICATIONS (1936) 239-86;
ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, MONOGRAPH OF THE
ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE, SEN. DOC. NO.
186, 76TH CONG., 3D SESS., PART 3, DEALING WITH THE FEDERAL
COMMUNICATIONS COMMISSION, PP. 82-84; 1 SOCOLOW, LAW OF RADIO
BROADCASTING (1939) 38-61; DONOVAN, ORIGIN AND DEVELOPMENT OF RADIO LAW
(1930). 

FN4  SEE MORECROFT, PRINCIPLES OF RADIO COMMUNICATION (3D ED. 1933)
355-402; TERMAN, RADIO ENGINEERING (2D ED. 1937) 593-645. 

FN5  IN THE COURSE OF THE SENATE DEBATES ON THE CONFERENCE REPORT
UPON THE BILL THAT BECAME THE RADIO ACT OF 1927, SENATOR DILL, WHO WAS
IN CHARGE OF THE BILL, SAID:  "WHILE THE COMMISSION WOULD HAVE THE
POWER UNDER THE GENERAL TERMS OF THE BILL, THE BILL SPECIFICALLY SETS
OUT AS ONE OF THE SPECIAL POWERS OF THE COMMISSION THE RIGHT TO MAKE
SPECIFIC REGULATIONS FOR GOVERNING CHAIN BROADCASTING.  AS TO CREATING
A MONOPOLY OF RADIO IN THIS COUNTRY, LET ME SAY THAT THIS BILL
ABSOLUTELY PROTECTS THE PUBLIC, SO FAR AS IT CAN PROTECT THEM, BY
GIVING THE COMMISSION FULL POWER TO REFUSE A LICENSE TO ANYONE WHO IT
BELIEVES WILL NOT SERVE THE PUBLIC INTEREST, CONVENIENCE, OR
NECESSITY.  IT SPECIFICALLY PROVIDES THAT ANY CORPORATION GUILTY OF
MONOPOLY SHALL NOT ONLY NOT RECEIVE A LICENSE BUT THAT ITS LICENSE MAY
BE REVOKED; AND IF AFTER A CORPORATION HAS RECEIVED ITS LICENSE FOR A
PERIOD OF THREE YEARS IT IS THEN DISCOVERED AND FOUND TO BE GUILTY OF
MONOPOLY, ITS LICENSE WILL BE REVOKED.  ...  IN ADDITION TO THAT, THE
BILL CONTAINS A PROVISION THAT NO LICENSE MAY BE TRANSFERRED FROM ONE
OWNER TO ANOTHER WITHOUT THE WRITTEN CONSENT OF THE COMMISSION, AND THE
COMMISSION, OF COURSE, HAVING THE POWER TO PROTECT AGAINST A MONOPOLY,
MUST GIVE SUCH PROTECTION.  I WISH TO STATE FURTHER THAT THE ONLY WAY
BY WHICH MONOPOLIES IN THE RADIO BUSINESS CAN SECURE CONTROL OF RADIO
HERE, EVEN FOR A LIMITED PERIOD OF TIME, WILL BE BY THE COMMISSION
BECOMING SERVILE TO THEM.  POWER MUST BE LODGED SOMEWHERE, AND I MYSELF
AM UNWILLING TO ASSUME IN ADVANCE THAT THE COMMISSION PROPOSED TO BE
CREATED WILL BE SERVILE TO THE DESIRES AND DEMANDS OF GREAT
CORPORATIONS OF THIS COUNTRY."  68 CONG. REC. 2881.    MR. JUSTICE
BLACK AND MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THESE CASES. 

MR. JUSTICE MURPHY, DISSENTING: 

I DO NOT QUESTION THE OBJECTIVES OF THE PROPOSED REGULATIONS, AND IT
IS NOT MY DESIRE BY NARROW STATUTORY INTERPRETATION TO WEAKEN THE
AUTHORITY OF GOVERNMENT AGENCIES TO DEAL EFFICIENTLY WITH MATTERS
COMMITTED TO THEIR JURISDICTION BY THE CONGRESS.  STATUTES OF THIS KIND
SHOULD BE CONSTRUED SO THAT THE AGENCY CONCERNED MAY BE ABLE TO COPE
EFFECTIVELY WITH PROBLEMS WHICH THE CONGRESS INTENDED TO CORRECT, OR
MAY OTHERWISE PERFORM THE FUNCTIONS GIVEN TO IT.  BUT WE EXCEED OUR
COMPETENCE WHEN WE GRATUITOUSLY BESTOW UPON AN AGENCY POWER WHICH THE
CONGRESS HAS NOT GRANTED.  SINCE THAT IS WHAT THE COURT IN SUBSTANCE
DOES TODAY, I DISSENT. 

IN THE PRESENT CASE WE ARE DEALING WITH A SUBJECT OF EXTREME
IMPORTANCE IN THE LIFE OF THE NATION.  ALTHOUGH RADIO BROADCASTING,
LIKE THE PRESS, IS GENERALLY CONDUCTED ON A COMMERCIAL BASIS, IT IS NOT
AN ORDINARY BUSINESS ACTIVITY, LIKE THE SELLING OF SECURITIES OR THE
MARKETING OF ELECTRICAL POWER.  IN THE DISSEMINATION OF INFORMATION AND
OPINION, RADIO HAS ASSUMED A POSITION OF COMMANDING IMPORTANCE,
RIVALLING THE PRESS AND THE PULPIT.  OWING TO ITS PHYSICAL
CHARACTERISTICS RADIO, UNLIKE THE OTHER METHODS OF CONVEYING
INFORMATION, MUST BE REGULATED AND RATIONED BY THE GOVERNMENT. 
OTHERWISE THERE WOULD BE CHAOS, AND RADIO'S USEFULNESS WOULD BE LARGELY
DESTROYED.  BUT BECAUSE OF ITS VAST POTENTIALITIES AS A MEDIUM OF
COMMUNICATION, DISCUSSION AND PROPAGANDA, THE CHARACTER AND EXTENT OF
CONTROL THAT SHOULD BE EXERCISED OVER IT BY THE GOVERNMENT IS A MATTER
OF DEEP AND VITAL CONCERN.  EVENTS IN EUROPE SHOW THAT RADIO MAY
READILY BE A WEAPON OF AUTHORITY AND MISREPRESENTATION, INSTEAD OF A
MEANS OF ENTERTAINMENT AND ENLIGHTENMENT.  IT MAY EVEN BE AN INSTRUMENT
OF OPPRESSION.  IN POINTING OUT THESE POSSIBILITIES I DO NOT MEAN TO
INTIMATE IN THE SLIGHTEST THAT THEY ARE IMMINENT OR PROBABLE IN THIS
COUNTRY, BUT THEY DO SUGGEST THAT THE CONSTRUCTION OF THE INSTANT
STATUTE SHOULD BE APPROACHED WITH MORE THAN ORDINARY RESTRAINT AND
CAUTION, TO AVOID AN INTERPRETATION THAT IS NOT CLEARLY JUSTIFIED BY
THE CONDITIONS THAT BROUGHT ABOUT ITS ENACTMENT, OR THAT WOULD GIVE THE
COMMISSION GREATER POWERS THAN THE CONGRESS INTENDED TO CONFER. 

THE COMMUNICATIONS ACT OF 1934 DOES NOT IN TERMS GIVE THE COMMISSION
POWER TO REGULATE THE CONTRACTUAL RELATIONS BETWEEN THE STATIONS AND
THE NETWORKS.  COLUMBIA SYSTEM V. UNITED STATES, 316 U.S. 407, 416.  IT
IS ONLY AS AN INCIDENT OF THE POWER TO GRANT OR WITHHOLD LICENSES TO
INDIVIDUAL STATIONS UNDER SECS. 307, 308, 309 AND 310 THAT THIS
AUTHORITY IS CLAIMED,  FN1  EXCEPT AS IT MAY HAVE BEEN PROVIDED BY
SUBDIVISIONS (G), (I) AND (R) OF SEC. 303, AND BY SECS. 311 AND 313. 
BUT NOWHERE IN THESE SECTIONS, TAKEN SINGLY OR COLLECTIVELY, IS THERE
TO BE FOUND BY REASONABLE CONSTRUCTION OR NECESSARY INFERENCE,
AUTHORITY TO REGULATE THE BROADCASTING INDUSTRY AS SUCH, OR TO CONTROL
THE COMPLEX OPERATIONS OF THE NATIONAL NETWORKS. 

IN PROVIDING FOR REGULATION OF THE RADIO, THE CONGRESS WAS UNDER THE
NECESSITY OF VESTING A CONSIDERABLE AMOUNT OF DISCRETIONARY AUTHORITY
IN THE COMMISSION.  THE TASK OF CHOOSING BETWEEN VARIOUS CLAIMANTS FOR
THE PRIVILEGE OF USING THE AIR WAVES IS ESSENTIALLY AN ADMINISTRATIVE
ONE.  NEVERTHELESS, IN SPECIFYING WITH SOME DEGREE OF PARTICULARITY THE
KIND OF INFORMATION TO BE INCLUDED IN AN APPLICATION FOR A LICENSE, THE
CONGRESS HAS INDICATED WHAT GENERAL CONDITIONS AND CONSIDERATIONS ARE
TO GOVERN THE GRANTING AND WITHHOLDING OF STATION LICENSES.  THUS AN
APPLICANT IS REQUIRED BY SEC. 308(B) TO SUBMIT INFORMATION BEARING UPON
HIS CITIZENSHIP, CHARACTER, AND TECHNICAL, FINANCIAL AND OTHER
QUALIFICATIONS TO OPERATE THE PROPOSED STATION, AS WELL AS DATA
RELATING TO THE OWNERSHIP AND LOCATION OF THE PROPOSED STATION, THE
POWER AND FREQUENCIES DESIRED, OPERATING PERIODS, INTENDED USE, AND
SUCH OTHER INFORMATION AS THE COMMISSION MAY REQUIRE.  LICENSES,
FREQUENCIES, HOURS OF OPERATION AND POWER ARE TO BE FAIRLY DISTRIBUTED
AMONG THE SEVERAL STATES AND COMMUNITIES TO PROVIDE EFFICIENT SERVICE
TO EACH.  SEC. 307(B).  EXPLICIT PROVISION IS MADE FOR DEALING WITH
APPLICANTS AND LICENSEES WHO ARE FOUND GUILTY, OR WHO ARE UNDER THE
CONTROL OF PERSONS FOUND GUILTY OF VIOLATING THE FEDERAL ANTI-TRUST
LAWS.  SECS. 311 AND 313.  SUBJECT TO THE LIMITATIONS DEFINED IN THE
ACT, THE COMMISSION IS REQUIRED TO GRANT A STATION LICENSE TO ANY
APPLICANT "IF PUBLIC CONVENIENCE, INTEREST, OR NECESSITY WILL BE SERVED
THEREBY."  SEC. 307(A).  NOTHING IS SAID, IN ANY OF THESE SECTIONS,
ABOUT NETWORK CONTRACTS, AFFILIATIONS, OR BUSINESS ARRANGEMENTS. 

THE POWER TO CONTROL NETWORK CONTRACTS AND AFFILIATIONS BY MEANS OF
THE COMMISSION'S LICENSING POWERS CANNOT BE DERIVED FROM IMPLICATION
OUT OF THE STANDARD OF "PUBLIC CONVENIENCE, INTEREST OR NECESSITY."  WE
HAVE HELD THAT:  "THE ACT DOES NOT ESSAY TO REGULATE THE BUSINESS OF
THE LICENSEE.  THE COMMISSION IS GIVEN NO SUPERVISORY CONTROL OF THE
PROGRAMS, OF BUSINESS MANAGEMENT OR OF POLICY.  IN SHORT, THE
BROADCASTING FIELD IS OPEN TO ANYONE, PROVIDED THERE BE AN AVAILABLE
FREQUENCY OVER WHICH HE CAN BROADCAST WITHOUT INTERFERENCE TO OTHERS,
IF HE SHOWS HIS COMPETENCY, THE ADEQUACY OF HIS EQUIPMENT, AND
FINANCIAL ABILITY TO MAKE GOOD USE OF THE ASSIGNED CHANNEL."  FEDERAL
COMMUNICATIONS COMM'N V. SANDERS RADIO STATION, 309 U.S. 470, 475.  THE
CRITERION OF "PUBLIC CONVENIENCE, INTEREST OR NECESSITY" IS NOT AN
INDEFINITE STANDARD, BUT ONE TO BE "INTERPRETED BY ITS CONTEXT, BY THE
NATURE OF RADIO TRANSMISSION AND RECEPTION, BY THE SCOPE, CHARACTER AND
QUALITY OF SERVICES,  ...  "  FEDERAL RADIO COMM'N V. NELSON BROS. CO.,
289 U.S. 266, 285.  NOTHING IN THE CONTEXT OF WHICH THE STANDARD IS A
PART REFERS TO NETWORK CONTRACTS.  IT IS EVIDENT FROM THE RECORD THAT
THE COMMISSION IS MAKING ITS DETERMINATION OF WHETHER THE PUBLIC
INTEREST WOULD BE SERVED BY RENEWAL OF AN EXISTING LICENSE OR LICENSES,
NOT UPON AN EXAMINATION OF WRITTEN APPLICATIONS PRESENTED TO IT, AS
REQUIRED BY SECS. 308 AND 309, BUT UPON AN INVESTIGATION OF THE
BROADCASTING INDUSTRY AS A WHOLE, AND GENERAL FINDINGS MADE IN
PURSUANCE THEREOF WHICH RELATE TO THE BUSINESS METHODS OF THE NETWORK
COMPANIES RATHER THAN THE CHARACTERISTICS OF THE INDIVIDUAL STATIONS
AND THE PECULIAR NEEDS OF THE AREAS SERVED BY THEM.  IF IT HAD BEEN THE
INTENTION OF THE CONGRESS TO INVEST THE COMMISSION WITH THE
RESPONSIBILITY, THROUGH ITS LICENSING AUTHORITY, OF EXERCISING FAR
REACHING CONTROL - AS EXEMPLIFIED BY THE PROPOSED REGULATIONS - OVER
THE BUSINESS OPERATIONS OF CHAIN BROADCASTING AND RADIO NETWORKS AS
THEY WERE THEN OR ARE NOW ORGANIZED AND ESTABLISHED, IT IS NOT LIKELY
THAT THE CONGRESS WOULD HAVE LEFT IT TO MERE INFERENCE OR IMPLICATION
FROM THE TEST OF "PUBLIC CONVENIENCE, INTEREST OR NECESSITY," OR THAT
CONGRESS WOULD HAVE NEGLECTED TO INCLUDE IT AMONG THE CONSIDERATIONS
EXPRESSLY MADE RELEVANT TO LICENSE APPLICATIONS BY SEC. 308(B).  THE
SUBJECT IS ONE OF SUCH SCOPE AND IMPORTANCE AS TO WARRANT EXPLICIT
MENTION.  TO CONSTRUE THE LICENSING SECTIONS (SECS. 307, 308, 309, 310)
AS GRANTING AUTHORITY TO REQUIRE FUNDAMENTAL AND REVOLUTIONARY CHANGES
IN THE BUSINESS METHODS OF THE BROADCASTING NETWORKS - METHODS WHICH
HAVE BEEN IN EXISTENCE FOR SEVERAL YEARS AND WHICH HAVE NOT BEEN
ADJUDGED UNLAWFUL - WOULD INFLATE AND DISTORT THEIR TRUE MEANING AND
EXTEND THEM BEYOND THE LIMITED PURPOSES WHICH THEY WERE INTENDED TO
SERVE. 

IT IS QUITE POSSIBLE, OF COURSE, THAT MAXIMUM UTILIZATION OF THE
RADIO AS AN INSTRUMENT OF CULTURE, ENTERTAINMENT, AND THE DIFFUSION OF
IDEAS IS INHIBITED BY EXISTING NETWORK ARRANGEMENTS.  SOME OF THE
CONDITIONS IMPOSED BY THE BROADCASTING CHAINS ARE POSSIBLY NOT
CONDUCIVE TO A FREER USE OF RADIO FACILITIES, HOWEVER ESSENTIAL THEY
MAY BE TO THE MAINTENANCE OF SUSTAINING PROGRAMS AND THE OPERATION OF
THE CHAIN BROADCASTING BUSINESS AS IT IS NOW CONDUCTED.  BUT I AM
UNABLE TO AGREE THAT IT IS WITHIN THE PRESENT AUTHORITY OF THE
COMMISSION TO PRESCRIBE THE REMEDY FOR SUCH CONDITIONS.  IT IS EVIDENT
THAT A CORRECTION OF THESE CONDITIONS IN THE MANNER PROPOSED BY THE
REGULATIONS WILL INVOLVE DRASTIC CHANGES IN THE BUSINESS OF RADIO
BROADCASTING WHICH THE CONGRESS HAS NOT CLEARLY AND DEFINITELY
EMPOWERED THE COMMISSION TO UNDERTAKE. 

IF THIS WERE A CASE IN WHICH A STATION LICENSE HAD BEEN WITHHELD FROM
AN INDIVIDUAL APPLICANT OR LICENSEE BECAUSE OF SPECIAL RELATIONS OR
COMMITMENTS THAT WOULD SERIOUSLY COMPROMISE OR LIMIT HIS ABILITY TO
PROVIDE ADEQUATE SERVICE TO THE LISTENING PUBLIC, I SHOULD BE LESS
INCLINED TO MAKE ANY OBJECTION.  AS AN INCIDENT OF ITS AUTHORITY TO
DETERMINE THE ELIGIBILITY OF AN INDIVIDUAL APPLICANT IN AN ISOLATED
CASE, THE COMMISSION MIGHT POSSIBLY CONSIDER SUCH FACTORS.  IN THE
PRESENT CASE, HOWEVER, THE COMMISSION HAS REVERSED THE ORDER OF
THINGS.  ITS REAL OBJECTIVE IS TO REGULATE THE BUSINESS PRACTICES OF
THE MAJOR NETWORKS, THUS BRINGING WITHIN THE RANGE OF ITS REGULATORY
POWER THE CHAIN BROADCASTING INDUSTRY AS A WHOLE.  BY MEANS OF THESE
REGULATIONS AND THE ENFORCEMENT PROGRAM, THE COMMISSION WOULD NOT ONLY
EXTEND ITS AUTHORITY OVER BUSINESS ACTIVITIES WHICH REPRESENT INTERESTS
AND INVESTMENTS OF A VERY SUBSTANTIAL CHARACTER, WHICH HAVE NOT BEEN
PUT UNDER ITS JURISDICTION BY THE ACT, BUT WOULD GREATLY ENLARGE ITS
CONTROL OVER AN INSTITUTION THAT HAS NOW BECOME A RIVAL OF THE PRESS
AND PULPIT AS A PURVEYOR OF NEWS AND ENTERTAINMENT AND A MEDIUM OF
PUBLIC DISCUSSION.  TO ASSUME A FUNCTION AND RESPONSIBILITY OF SUCH
WIDE REACH AND IMPORTANCE IN THE LIFE OF THE NATION, AS A MERE INCIDENT
OF ITS DUTY TO PASS ON INDIVIDUAL APPLICATIONS FOR PERMISSION TO
OPERATE A RADIO STATION AND USE A SPECIFIC WAVE LENGTH, IS AN
ASSUMPTION OF AUTHORITY TO WHICH I AM NOT WILLING TO LEND MY ASSENT. 

AGAIN I DO NOT QUESTION THE NEED OF REGULATION IN THIS FIELD, OR THE
AUTHORITY OF THE CONGRESS TO ENACT LEGISLATION THAT WOULD VEST IN THE
COMMISSION SUCH POWER AS IT REQUIRES TO DEAL WITH THE PROBLEM, WHICH IT
HAS DEFINED AND ANALYZED IN ITS REPORT WITH ADMIRABLE LUCIDITY.  IT IS
POSSIBLE THAT THE REMEDY INDICATED BY THE PROPOSED REGULATIONS IS THE
APPROPRIATE ONE, WHATEVER ITS EFFECT MAY BE ON THE SUSTAINING PROGRAMS,
ADVERTISING CONTRACTS, AND OTHER CHARACTERISTICS OF CHAIN BROADCASTING
AS IT IS NOW CONDUCTED IN THIS COUNTRY.  I DO NOT BELIEVE, HOWEVER,
THAT THE COMMISSION WAS JUSTIFIED IN CLAIMING THE RESPONSIBILITY AND
AUTHORITY IT HAS ASSUMED TO EXERCISE WITHOUT A CLEAR MANDATE FROM THE
CONGRESS. 

AN EXAMINATION OF THE HISTORY OF THIS LEGISLATION CONVINCES ME THAT
THE CONGRESS DID NOT INTEND BY ANYTHING IN SEC. 303, OR ANY OTHER
PROVISION OF THE ACT, TO CONFER ON THE COMMISSION THE AUTHORITY IT HAS
ASSUMED TO EXERCISE BY THE ISSUANCE OF THESE REGULATIONS.  SECTION 303
IS CONCERNED PRIMARILY WITH TECHNICAL MATTERS, AND THE SUBJECTS OF
REGULATION AUTHORIZED BY MOST OF ITS SUBDIVISIONS ARE EXCEEDINGLY
SPECIFIC - SO SPECIFIC IN FACT THAT IT IS REASONABLE TO INFER THAT, IF
CONGRESS HAD INTENDED TO COVER THE SUBJECT OF NETWORK CONTRACTS AND
AFFILIATIONS, IT WOULD NOT HAVE LEFT IT TO DUBIOUS IMPLICATIONS FROM
GENERAL CLAUSES, LIFTED OUT OF CONTEXT, IN SUBDIVISIONS (G), (I) AND
(R).  I AM UNABLE TO AGREE THAT IN AUTHORIZING THE COMMISSION IN SEC.
303(G) TO STUDY NEW USES FOR RADIO, PROVIDE FOR EXPERIMENTAL USE OF
FREQUENCIES, AND "GENERALLY ENCOURAGE THE LARGER AND MORE EFFECTIVE USE
OF RADIO IN THE PUBLIC INTEREST," IT WAS THE INTENTION OR THE PURPOSE
OF THE CONGRESS TO CONFER ON THE COMMISSION THE REGULATORY POWERS NOW
BEING ASSERTED.  MANIFESTLY THAT SUBDIVISION DEALT WITH EXPERIMENTAL
AND DEVELOPMENT WORK - TECHNICAL AND SCIENTIFIC MATTERS, AND THE
CONSTRUCTION OF ITS CONCLUDING CLAUSE SHOULD BE ACCORDINGLY LIMITED TO
THOSE CONSIDERATIONS.  NOTHING IN ITS LEGISLATIVE HISTORY SUGGESTS THAT
IT HAD ANY BROADER PURPOSE. 

IT WAS CLEARLY NOT THE INTENTION OF THE CONGRESS BY THE ENACTMENT OF
SEC. 303(I), AUTHORIZING THE COMMISSION "TO MAKE SPECIAL REGULATIONS
APPLICABLE TO RADIO STATIONS ENGAGED IN CHAIN BROADCASTING," TO INVEST
THE COMMISSION WITH THE AUTHORITY NOW CLAIMED OVER NETWORK CONTRACTS. 
THIS SECTION IS A VERBATIM REENACTMENT OF SEC. 4(H) OF THE RADIO ACT OF
1927, AND HAD ITS ORIGIN IN A SENATE AMENDMENT TO THE BILL WHICH BECAME
THAT ACT.  IN ITS ORIGINAL FORM IT PROVIDED THAT THE COMMISSION, FROM
TIME TO TIME, AS PUBLIC CONVENIENCE, INTEREST, OR NECESSITY REQUIRED,
SHOULD: 

"WHEN STATIONS ARE CONNECTED BY WIRE FOR CHAIN BROADCASTING, (THE
COMMISSION SHOULD) DETERMINE THE POWER EACH STATION SHALL USE AND THE
WAVE LENGTHS TO BE USED DURING THE TIME STATIONS ARE SO CONNECTED AND
SO OPERATED, AND MAKE ALL OTHER REGULATIONS NECESSARY IN THE INTEREST
OF EQUITABLE RADIO SERVICE TO THE LISTENERS IN THE COMMUNITIES OR AREAS
AFFECTED BY CHAIN BROADCASTING." 

IT WAS EVIDENTLY THE PURPOSE OF THIS PROVISION TO REMEDY A SITUATION
THAT WAS DESCRIBED AS FOLLOWS BY SENATOR DILL (WHO WAS IN CHARGE OF THE
BILL IN THE SENATE) IN QUESTIONING A WITNESS AT THE HEARINGS OF THE
SENATE COMMITTEE ON INTERSTATE COMMERCE: 

"  ...  DURING THE PAST FEW MONTHS THERE HAS GROWN UP A SYSTEM OF
CHAIN BROADCASTING, EXTENDING OVER THE UNITED STATES A GREAT DEAL OF
THE TIME.  I SAY A GREAT DEAL OF THE TIME - MANY NIGHTS A MONTH - AND
THE STATIONS THAT ARE CONNECTED ARE OF SUCH WIDELY VARYING METER
LENGTHS THAT THE ORDINARY RADIO SET THAT REACHES OUT ANY DISTANCE IS
UNABLE TO GET ANYTHING BUT THAT ONE PROGRAM, AND SO, IN EFFECT, THAT
ONE PROGRAM MONOPOLIZES THE AIR.  I REALIZE IT IS SOMEWHAT OF A
TECHNICAL ENGINEERING PROBLEM, BUT IT HAS SEEMED TO MANY PEOPLE, AT
LEAST MANY WHO HAVE WRITTEN TO ME, THAT WHEN STATIONS ARE CARRYING ON
CHAIN PROGRAMS THAT THEY MIGHT BE LIMITED TO THE USE OF WAVE LENGTHS
ADJOINING OR NEAR ENOUGH TO ONE ANOTHER THAT THEY WOULD NOT COVER THE
ENTIRE DIAL.  I DO NOT KNOW WHETHER LEGISLATION OUGHT TO RESTRICT THAT
OR WHETHER IT HAD BETTER BE DONE BY REGULATIONS OF THE DEPARTMENT.  I
WANT TO GET YOUR OPINION AS TO THE ADVISABILITY IN SOME WAY PROTECTING
PEOPLE WHO WANT TO HEAR SOME OTHER PROGRAM THAN THE ONE BEING
BROADCASTED BY CHAIN BROADCAST."  (REPORT OF HEARINGS BEFORE SENATE
COMMITTEE ON INTERSTATE COMMERCE ON S. 1 AND S. 1754, 69TH CONG., 1ST
SESS. (1926) P. 123.) 

IN OTHER WORDS, WHEN THE SAME PROGRAM WAS SIMULTANEOUSLY BROADCAST BY
CHAIN STATIONS, THE WEAKER INDEPENDENT STATIONS WERE DROWNED OUT
BECAUSE OF THE HIGH POWER OF THE CHAIN STATIONS.  WITH THE RECEIVING
SETS THEN COMMONLY IN USE, LISTENERS WERE UNABLE TO GET ANY PROGRAM
EXCEPT THE CHAIN PROGRAM.  IT WAS ESSENTIALLY AN INTERFERENCE PROBLEM. 
IN ADDITION TO DETERMINING POWER AND WAVE LENGTH FOR CHAIN STATIONS, IT
WOULD HAVE BEEN THE DUTY OF THE COMMISSION, UNDER THE AMENDMENT, TO
MAKE OTHER REGULATIONS NECESSARY FOR "EQUITABLE RADIO SERVICE TO THE
LISTENERS IN THE COMMUNITIES OR AREAS AFFECTED BY CHAIN BROADCASTING." 
THE LAST CLAUSE SHOULD NOT BE INTERPRETED OUT OF CONTEXT AND WITHOUT
RELATION TO THE PROBLEM AT WHICH THE AMENDMENT WAS AIMED.  IT IS
REASONABLY CONSTRUED AS SIMPLY AUTHORIZING THE COMMISSION TO REMEDY
OTHER TECHNICAL PROBLEMS OF INTERFERENCE INVOLVED IN CHAIN BROADCASTING
IN ADDITION TO POWER AND WAVE LENGTH BY REQUIRING SPECIAL TYPES OF
EQUIPMENT, CONTROLLING LOCATIONS, ETC.  THE STATEMENT IN THE SENATE
COMMITTEE REPORT THAT THIS PROVISION GAVE THE COMMISSION "COMPLETE
AUTHORITY  ...  TO CONTROL CHAIN BROADCASTING" (S. REP. NO. 772, 69TH
CONG., 1ST SESS., P. 3) MUST BE TAKEN AS MEANING THAT THE PROVISION
GAVE COMPLETE AUTHORITY WITH RESPECT TO THE SPECIFIC PROBLEM WHICH THE
SENATE INTENDED TO MEET, A PROBLEM OF TECHNICAL INTERFERENCE. 

WHILE THE FORM OF THE AMENDMENT WAS SIMPLIFIED IN THE CONFERENCE
COMMITTEE SO AS TO AUTHORIZE THE COMMISSION "TO MAKE SPECIAL
REGULATIONS APPLICABLE TO RADIO STATIONS ENGAGED IN CHAIN
BROADCASTING," BOTH HOUSES WERE ASSURED IN THE REPORT OF THE CONFERENCE
COMMITTEE THAT "THE JURISDICTION CONFERRED IN THIS PARAGRAPH IS
SUBSTANTIALLY THE SAME AS THE JURISDICTION CONFERRED UPON THE
COMMISSION BY  ...  THE SENATE AMENDMENT."  (SEN. DOC. NO. 200, 69TH
CONG., 2D SESS., P. 17; H. REP. NO. 1886, 69TH CONG., 2D SESS., P.
17).  THIS IS FURTHER BORNE OUT BY A STATEMENT OF SENATOR DILL IN
DISCUSSING THE CONFERENCE REPORT ON THE SENATE FLOOR: 

"WHAT IS HAPPENING TO-DAY IS THAT THE NATIONAL BROADCASTING CO.,
WHICH IS A PART OF THE GREAT RADIO TRUST, TO SAY THE LEAST, IF NOT A
MONOPOLY, IS HOOKING UP STATIONS IN EVERY COMMUNITY ON THEIR VARIOUS
WAVE LENGTHS WITH HIGH POWERED STATIONS AND SENDING ONE PROGRAM OUT,
AND THEY ARE FORCING THE LITTLE STATIONS OFF THE BOARD SO THAT THE
PEOPLE CANNOT HEAR ANYTHING EXCEPT THE ONE PROGRAM. 

"THERE IS NO POWER TO-DAY IN THE HANDS OF THE DEPARTMENT OF COMMERCE
TO STOP THAT PRACTICE.  THE RADIO COMMISSION WILL HAVE THE POWER TO
REGULATE AND PREVENT IT AND GIVE THE INDEPENDENTS A CHANCE."  (68 CONG.
REC. 3031.) 

COMMISSION IS EMPOWERED TO ISSUE THE CHALLENGED REGULATIONS.  THIS
SUBDIVISION IS NOT AN INDEPENDENT GRANT OF POWER, BUT ONLY AN
AUTHORIZATION TO: "MAKE SUCH RULES AND REGULATIONS AND PRESCRIBE SUCH
RESTRICTIONS AND CONDITIONS, NOT INCONSISTENT WITH LAW, AS MAY BE
NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT."  THERE IS NO
PROVISION IN THE ACT FOR THE CONTROL OF NETWORK CONTRACTUAL
ARRANGEMENTS BY THE COMMISSION, AND CONSEQUENTLY SEC. 303(R) IS OF NO
CONSEQUENCE HERE. 

TO THE EXTENT THAT EXISTING NETWORK PRACTICES MAY HAVE RUN COUNTER TO
THE ANTI-TRUST LAWS, THE CONGRESS HAS EXPRESSLY PROVIDED THE MEANS OF
DEALING WITH THE PROBLEM.  THE ENFORCEMENT OF THOSE LAWS HAS BEEN
COMMITTED TO THE COURTS AND OTHER LAW ENFORCEMENT AGENCIES.  IN
ADDITION TO THE USUAL PENALTIES PRESCRIBED BY STATUTE FOR THEIR
VIOLATION, HOWEVER, THE COMMISSION HAS BEEN EXPRESSLY AUTHORIZED BY
SEC. 311 TO REFUSE A STATION LICENSE TO ANY PERSON "FINALLY ADJUDGED
GUILTY BY A FEDERAL COURT" OF ATTEMPTING UNLAWFULLY TO MONOPOLIZE RADIO
COMMUNICATION.  ANYONE UNDER THE CONTROL OF SUCH A PERSON MAY ALSO BE
REFUSED A LICENSE.  AND WHENEVER A COURT HAS ORDERED THE REVOCATION OF
AN EXISTING LICENSE, AS EXPRESSLY PROVIDED IN SEC. 313, A NEW LICENSE
MAY NOT BE GRANTED BY THE COMMISSION TO THE GUILTY PARTY OR TO ANY
PERSON UNDER HIS CONTROL.  IN MY OPINION THESE PROVISIONS (SECS. 311
AND 313) CLEARLY DO NOT AND WERE NOT INTENDED TO CONFER INDEPENDENT
AUTHORITY ON THE COMMISSION TO SUPERVISE NETWORK CONTRACTS OR TO
ENFORCE COMPETITION BETWEEN RADIO NETWORKS BY WITHHOLDING LICENSES FROM
STATIONS, AND DO NOT JUSTIFY THE COMMISSION IN REFUSING A LICENSE TO AN
APPLICANT OTHERWISE QUALIFIED, BECAUSE OF BUSINESS ARRANGEMENTS THAT
MAY CONSTITUTE AN UNLAWFUL RESTRAINT OF TRADE, WHEN THE APPLICANT HAS
NOT BEEN FINALLY ADJUDGED GUILTY OF VIOLATING THE ANTI-TRUST LAWS, AND
IS NOT CONTROLLED BY ONE SO ADJUDGED. 

THE CONDITIONS DISCLOSED BY THE COMMISSION'S INVESTIGATION, IF THEY
REQUIRE CORRECTION, SHOULD BE MET, NOT BY THE INVENTION OF AUTHORITY
WHERE NONE IS AVAILABLE OR BY DIVERTING EXISTING POWERS OUT OF THEIR
TRUE CHANNELS AND USING THEM FOR PURPOSES TO WHICH THEY WERE NOT
ADDRESSED, BUT BY INVOKING THE AID OF THE CONGRESS OR THE SERVICE OF
AGENCIES THAT HAVE BEEN ENTRUSTED WITH THE ENFORCEMENT OF THE ANTI
TRUST LAWS.  IN OTHER FIELDS OF REGULATION THE CONGRESS HAS MADE CLEAR
ITS INTENTIONS.  IT HAS NOT LEFT TO MERE INFERENCE AND GUESS-WORK THE
EXISTENCE OF AUTHORITY TO ORDER BOARD CHANGES AND REFORMS IN THE
NATIONAL ECONOMY OR THE STRUCTURE OF BUSINESS ARRANGEMENTS IN THE
PUBLIC UTILITY HOLDING COMPANY ACT, 49 STAT. 803, THE SECURITIES ACT OF
1933, 48 STAT. 74, THE FEDERAL POWER ACT, 49 STAT. 838, AND OTHER
MEASURES OF SIMILAR CHARACTER.  INDEED THE COMMUNICATIONS ACT ITSELF
CONTAINS COGENT INTERNAL EVIDENCE THAT CONGRESS DID NOT INTEND TO GRANT
POWER OVER NETWORK CONTRACTUAL ARRANGEMENTS TO THE COMMISSION.  IN SEC.
215(C) OF TITLE II, DEALING WITH COMMON CARRIERS BY WIRE AND RADIO,
CONGRESS PROVIDED: 

"THE COMMISSION SHALL EXAMINE ALL CONTRACTS OF COMMON CARRIERS
SUBJECT TO THIS ACT WHICH PREVENT THE OTHER PARTY THERETO FROM DEALING
WITH ANOTHER COMMON CARRIER SUBJECT TO THIS ACT, AND SHALL REPORT ITS
FINDINGS TO CONGRESS, TOGETHER WITH ITS RECOMMENDATIONS AS TO WHETHER
ADDITIONAL LEGISLATION ON THIS SUBJECT IS DESIRABLE." 

CONGRESS HAD NO DIFFICULTY HERE IN EXPRESSING THE POSSIBLE
DESIRABILITY OF REGULATING A TYPE OF CONTRACT ROUGHLY SIMILAR TO THE
ONES WITH WHICH WE ARE NOW CONCERNED, AND IN RESERVING TO ITSELF THE
ULTIMATE DECISION UPON THE MATTERS OF POLICY INVOLVED.  INSOFAR AS THE
CONGRESS DEEMED IT NECESSARY IN THIS LEGISLATION TO SAFEGUARD RADIO
BROADCASTING AGAINST ARRANGEMENTS THAT ARE OFFENSIVE TO THE ANTI-TRUST
LAWS OR MONOPOLISTIC IN NATURE, IT MADE SPECIFIC PROVISION IN SECS. 311
AND 313.  IF THE EXISTING NETWORK CONTRACTS ARE DEEMED OBJECTIONABLE
BECAUSE OF MONOPOLISTIC OR OTHER FEATURES, AND NO REMEDY IS PRESENTLY
AVAILABLE UNDER THESE PROVISIONS, THE PROPER COURSE IS TO SEEK
AMENDATORY LEGISLATION FROM THE CONGRESS, NOT TO FABRICATE AUTHORITY BY
INGENIOUS REASONING BASED UPON PROVISIONS THAT HAVE NO TRUE RELATION TO
THE SPECIFIC PROBLEM. 

FN1  THE REGULATIONS AS FIRST PROPOSED WERE NOT CONNECTED WITH DENIAL
OF APPLICATIONS FOR INITIAL OR RENEWAL STATION LICENSES BUT PROVIDED
INSTEAD THAT:  "NO LICENSEE OF A STANDARD BROADCAST STATION SHALL ENTER
INTO ANY CONTRACTUAL ARRANGEMENT, EXPRESS OR IMPLIED, WITH A NETWORK
ORGANIZATION," WHICH CONTAINED ANY OF THE DISAPPROVED PROVISIONS. 
AFTER A SHORT TIME, HOWEVER, THE REGULATIONS WERE CAST IN THEIR PRESENT
FORM, MAKING STATION LICENSING DEPEND UPON CONFORMITY WITH THE
REGULATIONS. 

MR. JUSTICE ROBERTS AGREES WITH THESE VIEWS. 
..END :

















BARRINGER & CO. V. U.S., 319 U.S. 1 


NO. 520.  ARGUED MARCH 3, 1943.  - DECIDED MAY 3, 1943.  - 49 F.SUPP. 
637, AFFIRMED. 


DISCRIMINATION" THAT ANY CARRIER, "DIRECTLY OR INDIRECTLY, BY ANY
SPECIAL RATE, REBATE, DRAWBACK, OR OTHER DEVICE," CHARGE ANY PERSON
MORE OR LESS THAN ANOTHER FOR "A LIKE AND CONTEMPORANEOUS SERVICE IN
THE TRANSPORTATION OF A LIKE KIND OF TRAFFIC UNDER SUBSTANTIALLY
SIMILAR CIRCUMSTANCES AND CONDITIONS."  TARIFFS HERE UNDER
CONSIDERATION, APPROVED BY THE INTERSTATE COMMERCE COMMISSION,
ELIMINATE THE LOADING CHARGE ON COTTON MOVING FROM POINTS IN OKLAHOMA
TO CERTAIN PORTS ON THE GULF OF MEXICO, WHILE RETAINING IT ON COTTON
MOVING TO THE SOUTHEAST.  HELD: 

1.  LOADING IS A TRANSPORTATION SERVICE TO WHICH SEC. 2 APPLIES.  P.
6. 

2.  IN DETERMINING WHETHER THE DIFFERENCE IN THE LOADING CHARGE
RESULTED IN UNJUST DISCRIMINATION, THE COMMISSION WAS ENTITLED TO
CONSIDER RELEVANT DIFFERENCES IN THE "CIRCUMSTANCES AND CONDITIONS"
RELATING TO THE THROUGH LINE-HAUL RATES.  P. 7. 

3.  CONSIDERING THE TRUCK COMPETITION TO THE GULF PORTS AND THE
RELATIVE RATE STRUCTURES, THE DETERMINATION OF THE COMMISSION THAT THE
REDUCTION IN THE LINE-HAUL COST TO THE SHIPPER, EFFECTED BY REMISSION
OF THE LOADING CHARGE, DID NOT RESULT IN AN UNJUST DISCRIMINATION WAS
NOT LACKING IN RATIONAL BASIS.  P. 10. 

4.  THAT THE TOTAL THROUGH COST OF THE TRANSPORTATION SERVICE, OF
WHICH THE LOADING CHARGE IS A COMPONENT, MAY BE OPEN TO ATTACK IN A
PROCEEDING UNDER SEC. 13(1) BRINGING THE THROUGH RATE INTO QUESTION
DOES NOT REQUIRE A DETERMINATION THAT THE DIFFERENCE IN THE LOADING
CHARGE CONSTITUTES AN UNJUST DISCRIMINATION.  P. 10. 

5.  SECTION 6(1) DOES NOT PRECLUDE THE COMMISSION FROM CONSIDERING
THE VALIDITY OF THE IMPOSITION OR ELIMINATION OF A SEPARATELY STATED
LOADING CHARGE IN THE LIGHT OF ITS RELATIONSHIP TO THE THROUGH RATE. 
P. 12. 

6.  THE FACTS WHICH JUSTIFY THE COMMISSION'S FINDING THAT THE
ELIMINATION OF THE LOADING CHARGE DOES NOT RESULT IN AN UNJUST
DISCRIMINATION, ALSO JUSTIFY ITS FINDING THAT THE ELIMINATION OF THAT
CHARGE DOES NOT CREATE AN UNDUE PREFERENCE IN VIOLATION OF SEC. 3(1). 
P. 13. 

7.  THE COMMISSION'S FINDINGS ARE ADEQUATELY SUPPORTED BY SUBSTANTIAL
EVIDENCE OF RECORD.  P. 14. 

L.T. BARRINGER & CO. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF TENNESSEE. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DISMISSING
THE COMPLAINT IN A SUIT TO ENJOIN AND SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BY APPELLANT, A SHIPPER OF COTTON OVER THE LINES OF
APPELLEE RAILROADS, BROUGHT UNDER 28 U.S.C. SEC. 41(28), TO ENJOIN AND
SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.  THE DISTRICT
COURT OF THREE JUDGES DISMISSED THE COMPLAINT, AND THE CASE COMES HERE
ON DIRECT APPEAL PURSUANT TO 28 U.S.C. SEC. 47.  THE QUESTION IS
WHETHER THE COMMISSION ERRED IN REFUSING TO SET ASIDE TARIFFS ON
COTTON, FILED BY THE FIVE APPELLEE RAILROADS, AS UNJUSTLY
DISCRIMINATORY AND UNDULY PREJUDICIAL TO SHIPPERS IN VIOLATION OF SECS.
2 AND 3(1) OF THE INTERSTATE COMMERCE ACT, 24 STAT. 379, 380; 49 U.S.C.
SECS. 2, 3(1). 

FROM THE REPORT OF THE COMMISSION, ON WHICH ITS ORDER WAS BASED, 248
I.C.C. 643, THE FOLLOWING FACTS APPEAR.  APPELLEES CARRY COTTON FROM
POINTS IN OKLAHOMA TO PORTS ON THE GULF OF MEXICO.  THEIR LINES ALSO
FORM RELATIVELY SHORT PARTS OF THE THROUGH ROUTES OVER WHICH COTTON
MOVES FROM OKLAHOMA TO POINTS IN THE SOUTHEASTERN UNITED STATES. 
DURING RECENT YEARS CARRIERS OF COTTON TO THE GULF PORTS HAVE BEEN
FACED WITH SERIOUS TRUCK COMPETITION.  TO MEET IT, SUCCESSIVE RATE
REDUCTIONS HAVE BEEN MADE.  UNTIL ABOUT TEN YEARS AGO THE ONLY RATES
AVAILABLE ON COTTON WERE LESS-THAN-CARLOAD RATES, SINCE INDIVIDUAL
SHIPMENTS OF COTTON ARE SELDOM, IF EVER, IN CARLOAD QUANTITIES.  AS IS
CUSTOMARY ON LESS-THAN-CARLOAD SHIPMENTS, THE COTTON WAS LOADED AT THE
EXPENSE OF THE CARRIER.  FN1 

DURING 1932 AND 1933 THE CARRIERS, IN AN EFFORT TO REDUCE RATES AND
ACHIEVE OPERATING ECONOMIES, PUT IN EFFECT SO-CALLED CARLOAD RATES FOR
COTTON WHICH THE COMMISSION, AFTER INVESTIGATION, APPROVED IN COTTON
FROM AND TO POINTS IN SOUTHWEST AND MEMPHIS, 208 I.C.C. 677.  UNDER
THESE RATES THE COTTON WAS TYPICALLY COLLECTED IN LESS-THAN-CARLOAD
QUANTITIES AT THE GINNING POINTS, CARRIED BY RAIL FOR SHORT DISTANCES
TO COMPRESSORS, AND AFTER COMPRESSION ASSEMBLED IN CARLOAD QUANTITIES
FOR SHIPMENT TO DESTINATION.  THE SHIPPER PAID THE LOCAL, LESS-THAN
CARLOAD RATE TO THE COMPRESS POINT, AND THE LOCAL RATE FROM COMPRESS
POINT TO DESTINATION, BUT ON THE COTTON'S ARRIVAL AT DESTINATION THE
CARRIER REFUNDED THE DIFFERENCE BETWEEN THE FREIGHT PAID AND THE
THROUGH, CARLOAD, RATE FROM POINT OF ORIGIN TO DESTINATION.  ON THESE
RATES LOADING WAS AT THE SHIPPER'S EXPENSE; IF THE CARRIER PERFORMED
THE LOADING SERVICE A CHARGE OF 5 1/2 CENTS A SQUARE BALE WAS MADE,
WHICH WAS PAID BY A DEDUCTION FROM THE REFUND ALLOWED BY THE CARRIER ON
THE TRANSIT SETTLEMENT JUST REFERRED TO.  THIS LOADING CHARGE WAS
STATED SEPARATELY IN APPELLEES' TARIFFS FILED WITH THE COMMISSION,
PURSUANT TO SEC. 6(1). 

DESPITE THE REDUCTION IN COST TO SHIPPERS PRODUCED BY THE ADOPTION OF
THESE SCHEDULES, TRUCK COMPETITION CONTINUED TO BE A SERIOUS PROBLEM. 
IN 1939 CARRIERS OF COTTON FROM TEXAS POINTS EFFECTED A FURTHER RATE
REDUCTION BY ELIMINATING THE LOADING CHARGE.  THE TARIFFS HERE UNDER
CONSIDERATION, FILED BY APPELLEES TO BE EFFECTIVE ON JUNE 11, 1941,
SIMILARLY ELIMINATE THE LOADING CHARGE FOR COTTON MOVING FROM COMPRESS
POINTS IN OKLAHOMA TO CERTAIN PORTS ON THE GULF OF MEXICO,  FN2  WHILE
RETAINING IT ON COTTON MOVING TO THE SOUTHEAST. 

APPELLANT BUYS COTTON IN OKLAHOMA FOR RESALE TO MILLS IN THE
SOUTHEAST.  UNDER THE PROPOSED TARIFFS IT MUST CONTINUE TO PAY THE
LOADING CHARGE ON COTTON WHICH IT SHIPS TO THE SOUTHEAST, WHILE
MERCHANTS WHO SHIP TO THE GULF PORTS, AND WHO COMPETE WITH APPELLANT IN
THE PURCHASE OF COTTON, ARE RELIEVED OF THAT CHARGE.  CONTENDING THAT
THIS SITUATION WOULD CREATE AN UNJUST DISCRIMINATION UNDER SEC. 2, AND
WOULD BE UNDULY PREJUDICIAL UNDER SEC. 3(1), APPELLANT FILED A PETITION
WITH THE COMMISSION UNDER SEC. 15(7) TO SUSPEND THE PROPOSED TARIFFS. 

DIVISION 3 OF THE COMMISSION, AFTER A HEARING IN WHICH APPELLANT
PARTICIPATED, ISSUED ITS REPORT AND ORDER, REFUSING TO SET ASIDE THE
PROPOSED RATES.  IT FOUND THAT TRUCK COMPETITION HAD CONTINUED TO
INCREASE DURING 1940, SO AS TO JUSTIFY APPROPRIATE EFFORTS BY THE
CARRIERS TO MEET SUCH COMPETITION; FN3  THAT THE LOADING CHARGE CAUSED
ANNOYANCE TO SHIPPERS; THAT THE COST OF PERFORMING THE LOADING SERVICE
WAS IN MOST CASES NOMINAL AND ITS PERFORMANCE BY THE CARRIER WOULD
RESULT IN LOADING TO MAXIMUM CAPACITY, SO THAT ELIMINATION OF THE
CHARGE WAS A SUITABLE METHOD OF ACHIEVING A NEEDED REDUCTION IN RATES
WHICH WERE ALREADY LOW; THAT CARRIERS IN STATES FARTHER EAST OPPOSED
THE EXTENSION INTO THEIR TERRITORY OF THE PRACTICE OF FREE LOADING, AND
THE ELIMINATION BY APPELLEES OF THE LOADING CHARGE ON COTTON MOVING
INTO THAT TERRITORY; THAT THE "RATES TO THE SOUTHEAST ARE ALREADY LOWER
RELATIVELY THAN THEY ARE TO THE TEXAS PORTS"; AND THAT "THERE IS NO
TRUCKING OF COTTON FROM OKLAHOMA  ...  TO THE SOUTHEAST."  ACCORDINGLY
IT FOUND THAT THE PROPOSED ELIMINATION OF THE LOADING CHARGE "IS JUST
AND REASONABLE AND NOT SHOWN TO BE OTHERWISE UNLAWFUL."  APPELLANT'S
PETITION FOR RECONSIDERATION WAS DENIED BY THE FULL COMMISSION, AND THE
PROPOSED RATES, WHICH HAD BEEN SUSPENDED WHILE UNDER CONSIDERATION BY
THE COMMISSION, BECAME EFFECTIVE. 

APPELLANT'S PRINCIPAL CONTENTION IS THAT, IN CONSIDERING THE VALIDITY
OF THE PROPOSED TARIFFS UNDER SEC. 2, THE COMMISSION COULD LOOK ONLY AT
THE CHARGE FOR THE LOADING SERVICE AND WAS NOT ENTITLED TO CONSIDER
CONDITIONS RELATING TO THE THROUGH LINE-HAUL RATES.  SECTION 2 OF THE
ACT DECLARES IT TO BE AN "UNJUST" AND PROHIBITED DISCRIMINATION FOR ANY
CARRIER "DIRECTLY OR INDIRECTLY, BY ANY SPECIAL RATE, REBATE, DRAWBACK,
OR OTHER DEVICE," TO CHARGE ONE PERSON MORE OR LESS THAN ANOTHER FOR "A
LIKE AND CONTEMPORANEOUS SERVICE IN THE TRANSPORTATION OF A LIKE KIND
OF TRAFFIC UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS." 
IT IS UNDOUBTED THAT THE LOADING SERVICE HERE INVOLVED IS A
TRANSPORTATION SERVICE TO WHICH SEC. 2 APPLIES.  SEC. 1(3)(A);
MERCHANTS WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501, 511. 

SEE SHARFMAN, INTERSTATE COMMERCE COMMISSION, VOL. III-B, PP. 360-61. 
WHERE THE TRANSPORTATION SERVICES ARE RENDERED UNDER SUBSTANTIALLY
SIMILAR CONDITIONS THE SECTION HAS BEEN THOUGHT TO PROHIBIT ANY
DIFFERENTIATION BETWEEN SHIPPERS ON THE BASIS OF THEIR IDENTITY,
INTERSTATE COMMERCE COMMISSION V. BALTIMORE & OHIO R. CO., 225 U.S.
326, 342; INTERSTATE COMMERCE COMMISSION V. DELAWARE, L. & W.R. CO.,
220 U.S. 235, 252, OR ON THE BASIS OF COMPETITIVE CONDITIONS WHICH MAY
INDUCE A CARRIER TO OFFER A REDUCTION IN RATE TO ONE SHIPPER WHILE
DENYING IT TO ANOTHER SIMILARLY SITUATED.  WIGHT V. UNITED STATES, 167
U.S. 512, 516-18; INTERSTATE COMMERCE COMMISSION V. ALABAMA MIDLAND RY.
CO., 168 U.S. 144, 166.  COMPARE SEABOARD AIR LINE RY. CO. V. UNITED
STATES, 254 U.S. 57, 62.  BUT DIFFERENCES IN RATES AS BETWEEN SHIPPERS
ARE PROHIBITED ONLY WHERE THE "CIRCUMSTANCES AND CONDITIONS" ATTENDING
THE TRANSPORTATION SERVICE ARE "SUBSTANTIALLY SIMILAR."  WHETHER THOSE
CIRCUMSTANCES AND CONDITIONS ARE SUFFICIENTLY DISSIMILAR TO JUSTIFY A
DIFFERENCE IN RATES, OR WHETHER, ON THE OTHER HAND, THE DIFFERENCE IN
RATES CONSTITUTES AN UNJUST DISCRIMINATION BECAUSE BASED PRIMARILY ON
CONSIDERATIONS RELATING TO THE IDENTITY OR COMPETITIVE POSITION OF THE
PARTICULAR SHIPPER RATHER THAN TO CIRCUMSTANCES ATTENDING THE
TRANSPORTATION SERVICE, IS A QUESTION OF FACT FOR THE COMMISSION'S
DETERMINATION.  HENCE ITS CONCLUSION THAT IN VIEW OF ALL THE RELEVANT
FACTS AND CIRCUMSTANCES A RATE OR PRACTICE EITHER IS OR IS NOT UNJUSTLY
DISCRIMINATORY WITHIN THE MEANING OF SEC. 2 OF THE ACT WILL NOT BE
DISTURBED HERE UNLESS WE CAN SAY THAT ITS FINDING IS UNSUPPORTED BY
EVIDENCE OR WITHOUT RATIONAL BASIS, OR RESTS ON AN ERRONEOUS
CONSTRUCTION OF THE STATUTE.  SEABOARD AIR LINE RY. CO. V. UNITED
STATES, SUPRA, 62; INTERSTATE COMMERCE COMMISSION V. DELAWARE, L. &
W.R. CO., SUPRA, 251-2; LOUISVILLE & NASHVILLE R. CO. V. UNITED STATES,
282 U.S. 740, 758; MERCHANTS WAREHOUSE CO. V. UNITED STATES, SUPRA,
508; BALTIMORE & OHIO R. CO. V. UNITED STATES, 305 U.S. 507, 524. 

IN CONSIDERING THE CIRCUMSTANCES AND CONDITIONS ATTENDING THE
TRANSPORTATION SERVICE, THE COMMISSION WAS NOT REQUIRED TO IGNORE THE
FACT THAT THE LOADING CHARGES, ALTHOUGH SEPARATELY STATED IN THE
TARIFFS, ARE IN EACH CASE A COMPONENT PART OF THE TOTAL LINE-HAUL COST
TO THE SHIPPER AND INSEPARABLE FROM IT.  ALL THE CARRIER LOADING COSTS
NOT COMPENSATED FOR BY THE LOADING CHARGES, IF ANY, TO SHIPPERS, ARE
NECESSARILY ABSORBED BY THE CARRIER OUT OF THE LINE-HAUL CHARGES WHICH
SHIPPERS PAY.  THE LOADING CHARGE IS NOT PAID UNTIL THE LINE HAUL IS
COMPLETED AND THE ULTIMATE DESTINATION KNOWN, AND THEN ONLY BY A
REDUCTION OF THE REFUND PAYABLE BY THE CARRIER ON THE TRANSIT
SETTLEMENT PRESCRIBED BY THE TARIFFS.  AND WHERE COTTON MOVES ON LESS
THAN-CARLOAD RATES, THE COST OF LOADING IS ABSORBED BY THE CARRIER,
ALTHOUGH THE LOADING SERVICES PERFORMED BY THE CARRIER ARE THE SAME. 
IN THESE CIRCUMSTANCES THE NET EFFECT, ON THE SHIPPER'S LINE-HAUL COST,
OF THE REMISSION BY THE TARIFF OF ANY PART OF THE LOADING CHARGE IS
PRECISELY THE SAME AS THOUGH THE LIKE REDUCTION WERE MADE IN THE LINE
HAUL TARIFF. 

IT HAS LONG BEEN ESTABLISHED BY OUR DECISIONS THAT DIFFERENCES IN
COMPETITIVE CONDITIONS MAY JUSTIFY A RELATIVELY LOWER LINE-HAUL CHARGE
OVER ONE LINE THAN ANOTHER, AND THAT IT IS FOR THE COMMISSION, NOT THE
COURTS, TO SAY WHETHER THOSE DIFFERENCES ARE SUFFICIENT TO SHOW THAT A
DIFFERENCE IN RATES ESTABLISHED TO MEET THOSE CONDITIONS IS NOT AN
UNJUST DISCRIMINATION OR OTHERWISE UNLAWFUL.  TEXAS & PACIFIC RY. CO.
V. UNITED STATES, 289 U.S. 627, 636-7, AND CASES CITED; MANUFACTURERS
RY. CO. V. UNITED STATES, 246 U.S. 457, 481; UNITED STATES V. CHICAGO
HEIGHTS TRUCKING CO., 310 U.S. 344, 352-53; BOARD OF TRADE V. UNITED
STATES, 314 U.S. 534, 546.  IT FOLLOWS THAT COMPETITIVE CONDITIONS
WHICH WOULD JUSTIFY AND RENDER NON-DISCRIMINATORY A REDUCTION IN THE
LINE-HAUL TARIFF ON A PARTICULAR CLASS OF TRAFFIC, WOULD LIKEWISE
JUSTIFY THE REDUCTION AND RENDER IT NON-DISCRIMINATORY IF MADE IN THE
LOADING CHARGE INSTEAD.  WHETHER MADE IN THE ONE CHARGE OR THE OTHER,
IT ENTERS INTO THE TOTAL COST OF THE LINE HAUL TO THE SHIPPER,
REGARDLESS OF WHETHER THE LOADING CHARGE BE SEPARATELY STATED OR
INCLUDED IN THE LINE-HAUL TARIFF.  SINCE THE ONLY EFFECT ON THE SHIPPER
IS IN THE DIFFERENCE IN THE LINE-HAUL CHARGE AND HE IS HARMED NO MORE
BY ONE METHOD OF EFFECTING THAT DIFFERENCE THAN THE OTHER, ANY
CONDITIONS ATTENDING THE LINE HAUL WHICH JUSTIFY THE ONE AS NON
DISCRIMINATORY EQUALLY JUSTIFY THE OTHER. 

THIS COURT HAS HELD THAT THE COMMISSION MAY CONSIDER THE THROUGH LINE
HAUL RATE IN DETERMINING WHETHER A RELATED ACCESSORIAL CHARGE IS JUST
AND REASONABLE UNDER SEC. 1(5)(A).  ATCHISON, T. & S.F. RY. CO. V.
UNITED STATES, 232 U.S. 199, 219-220.  WE FIND NOTHING IN SEC. 2 OR IN
OUR DECISIONS THAT PRECLUDES THE COMMISSION FROM SIMILARLY LOOKING AT
THE WHOLE OF THE SERVICES RENDERED TO DIFFERENT SHIPPERS TO DETERMINE
WHETHER THE CONDITIONS ARE SUCH AS TO JUSTIFY A DIFFERENCE IN CHARGES
MADE FOR ONE COMPONENT PART OF THAT WHOLE.  NOR HAS THE COMMISSION
FOUND SUCH A LIMITATION IN THE STATUTE.  ARCHER-DANIELS-MIDLAND CO. V.
ALTON R. CO., 246 I.C.C. 421, 428, 430; MINNEAPOLIS TRAFFIC ASSN. V.
CHICAGO & N.W. RY. CO., 241 I.C.C. 207, 220, 224; RAILROAD COMM'N OF
WISCONSIN V. ANN ARBOR R. CO., 177 I.C.C. 588, 592; STATE DOCKS
COMMISSION V. LOUISVILLE & NASHVILLE R. CO., 167 I.C.C. 112, 115-116;
TIDE WATER OIL CO. V. DIRECTOR GENERAL, 62 I.C.C. 226, 227; RICHMOND
CHAMBER OF COMMERCE V. SEABOARD AIR LINE RY., 44 I.C.C. 455, 466.  FN4
OBVIOUSLY THERE IS NOTHING IN THIS CONSTRUCTION OF SEC. 2 WHICH WOULD
PRECLUDE THE COMMISSION FROM SETTING ASIDE A DIFFERENCE IN A SEPARATELY
STATED SERVICE CHARGE WHICH IN FACT OPERATES TO DISCRIMINATE UNJUSTLY
AMONG SHIPPERS.  WE HAVE REPEATEDLY SUSTAINED A FINDING OF THE
COMMISSION THAT SUCH A DIFFERENCE, BASED ON A DIFFERENCE IN IDENTITY OF
SHIPPERS OR THE OWNERSHIP OF THE GOODS SHIPPED, OR ON OTHER
CIRCUMSTANCES IRRELEVANT TO THE CARRIER SERVICE RENDERED, IS AN UNJUST
DISCRIMINATION TO SHIPPERS.  WIGHT V. UNITED STATES, SUPRA; INTERSTATE
COMMERCE COMMISSION V. DELAWARE, L. & W.R. CO., SUPRA; INTERSTATE
COMMERCE COMMISSION V. BALTIMORE & OHIO R. CO., SUPRA; SEABOARD AIR
LINE RY. CO. V. UNITED STATES, SUPRA; LOUISVILLE & NASHVILLE R. CO. V.
UNITED STATES, SUPRA; MERCHANTS WAREHOUSE CO. V. UNITED STATES, SUPRA.
THE DISTINCTION BETWEEN THOSE CASES AND THIS IS THAT HERE THE
DIFFERENCE IN THE SERVICE CHARGE IS MADE BETWEEN THROUGH SHIPPERS OVER
DIFFERENT ROUTES, AND IS BASED ON RELEVANT DIFFERENCES IN THE
"CIRCUMSTANCES AND CONDITIONS" OF THE TOTAL TRANSPORTATION SERVICES
RENDERED BY THE CARRIERS.  IT WAS WITHIN THE COMPETENCE OF THE
COMMISSION TO FIND THAT THIS INVOLVED NO UNJUST DISCRIMINATION.    THIS
IS NOT TO SAY THAT IN EVERY CASE WHERE THE DIFFERENCES IN TOTAL
TRANSPORTATION SERVICES RENDERED ARE SUCH AS WOULD JUSTIFY A GREATER
CHARGE TO ONE THAN TO ANOTHER SHIPPER, THE DIFFERENCE IN CHARGE CAN AT
THE CARRIER'S OPTION BE MADE IN THE CHARGE FOR AN ACCESSORIAL SERVICE
SUCH AS THE LOADING SERVICE HERE INVOLVED.  BUT THE DECISION WHETHER
THE CIRCUMSTANCES AND CONDITIONS ARE SUCH AS TO JUSTIFY A DIFFERENCE IN
THE ACCESSORIAL CHARGE, OR RATHER TO REQUIRE THAT ANY ADJUSTMENT BE
MADE IN THE LINE-HAUL CHARGE, IS ONE WHICH THE STATUTE HAS LEFT TO THE
DETERMINATION OF THE COMMISSION, WHICH CONGRESS HAS ENTRUSTED WITH THE
POWER AND DUTY OF GUARDING AGAINST THE PROHIBITED FAVORITISM.  IN THE
CIRCUMSTANCES OF THIS CASE, WE CANNOT SET ASIDE, AS LACKING IN RATIONAL
BASIS, THE COMMISSION'S DETERMINATION THAT THE REDUCTION IN THE LINE
HAUL COST TO THE SHIPPER EFFECTED BY REMISSION OF THE LOADING CHARGE
DID NOT RESULT IN AN UNJUST DISCRIMINATION. 

IT IS NO ANSWER TO THIS DETERMINATION OF THE COMMISSION TO SAY THAT
THE RATES HERE APPROVED AS NON-DISCRIMINATORY MAY BE OPEN TO ATTACK IN
A PROCEEDING UNDER SEC. 13(1) TO ADJUST THE LINE-HAUL RATES IN WHICH
ALL CONNECTING CARRIERS WHO PARTICIPATE IN THE TARIFF ARE REQUIRED TO
BE PARTIES BY RULE II (C) OF THE COMMISSION'S 1936 RULES OF PRACTICE,
OR IN A PROCEEDING UNDER SEC. 15(3) TO ESTABLISH DIVISIONS OF THE
THROUGH RATES AMONG THE CONNECTING CARRIERS, "A MATTER WHICH IN NO WAY
CONCERNS THE SHIPPER," LOUISVILLE & NASHVILLE R. CO. V. SLOSS-SHEFFIELD
CO., 269 U.S. 217, 234.  HERE THE DIFFERENCE IN LOADING CHARGE IS
ASSAILED BY A SHIPPER ONLY, AND ON THE GROUNDS ALONE THAT IT IS
UNJUSTLY DISCRIMINATORY OR UNDULY PREFERENTIAL.  THE DISCRIMINATION OR
PREFERENCE, IF ANY, IS CAUSED BY THE CARRIERS WHO PERFORM IN PART THE
LINE-HAUL TRANSPORTATION SERVICE.  THE COMMISSION HAS NOT UNDERTAKEN TO
PASS UPON THE VALIDITY OF THE LINE-HAUL RATES, AND IT DOES NOT APPEAR
THAT APPELLANT HAS ASKED IT TO DO SO.  IT HAS PASSED ONLY ON THE
QUESTION OF DISCRIMINATION OR PREFERENCE RESULTING FROM THE REMISSION
OF THE LOADING CHARGE.  IN DOING SO IT HAS, AS SEC. 2 CONTEMPLATES,
LOOKED AT ALL THE RELEVANT CIRCUMSTANCES AND CONDITIONS, INCLUDING THE
RESPECTIVE LINE-HAUL CONDITIONS, IN ORDER TO ASCERTAIN WHETHER THE
LOADING SERVICE AND LINE HAULS ARE MADE UNDER SUBSTANTIALLY SIMILAR
CIRCUMSTANCES AND CONDITIONS WITH RESPECT TO THE PARTICULAR
DISCRIMINATION CHARGED.  THE COMMISSION HAS FOUND THAT THEY ARE NOT AND
THAT THE DIFFERENCE IN SERVICE CHARGE IS NOT UNJUSTLY DISCRIMINATORY AS
TO SHIPPERS. 

STATUTORY SCHEME, TO REVERSE THAT FINDING AND TO DECLARE THAT THE
DIFFERENCE IN SERVICE CHARGE CONSTITUTES AN UNJUST DISCRIMINATION
MERELY BECAUSE THE TOTAL THROUGH COST, OF WHICH THAT CHARGE IS A
COMPONENT, MAY BE OPEN TO ATTACK IN A PROCEEDING BRINGING THE THROUGH
RATE INTO QUESTION.  SEE MANUFACTURERS RY. CO. V. UNITED STATES, SUPRA,
479, 481.  BUT UNLESS WE ARE TO SAY THAT SEC. 2 PRECLUDES THE
COMMISSION FROM CONSIDERING FACTS WHICH ARE RELEVANT TO THE ISSUE OF
DISCRIMINATION WHICH IT MUST DECIDE, WE PERCEIVE NO OTHER GROUND UPON
WHICH THEIR CONSIDERATION CAN BE DEEMED FORBIDDEN.  FN5 IN THE PRESENT
PROCEEDING THE ONLY QUESTION IN ISSUE IS WHETHER THE PROPOSED
ELIMINATION OF THE LOADING CHARGE IS UNJUSTLY DISCRIMINATORY OR UNDULY
PREJUDICIAL; NOTHING IN THE COMMISSION'S ORDER OR ITS RULES OF
PROCEDURE FORECLOSES ATTACK ON THE LINE-HAUL RATES IN AN APPROPRIATE
PROCEEDING ON ANY GROUND WHICH THE STATUTE AUTHORIZES. 

NOR DO WE FIND ANYTHING IN SEC. 6(1) WHICH PRECLUDES THE COMMISSION
FROM LOOKING AT THE ENTIRE THROUGH RATE.  THAT SECTION MERELY REQUIRES
CARRIERS TO FILE WITH THE COMMISSION ALL RATES AND CHARGES ESTABLISHED
BY THEM, AND TO "STATE SEPARATELY ALL TERMINAL CHARGES, STORAGE
CHARGES, ICING CHARGES, AND ALL OTHER CHARGES WHICH THE COMMISSION MAY
REQUIRE, ALL PRIVILEGES OR FACILITIES GRANTED OR ALLOWED  ... "
APPELLEES HAVE COMPLIED WITH ITS REQUIREMENT THAT THE LOADING CHARGE,
AND THE EXCEPTIONS TO IT CREATED BY THE PRESENT TARIFFS, BE SEPARATELY
POSTED.  WE HAVE NOT CONSTRUED SEC. 6(1), WHICH IS DESIGNED TO INSURE
PUBLICITY OF RATES, KANSAS CITY SOUTHERN RY. CO. V. ALBERS COMMISSION
CO., 223 U.S. 573, 596-7, AS PRECLUDING A CARRIER FROM PERFORMING AN
ACCESSORIAL SERVICE FREE OF CHARGE PROVIDED NO VIOLATION OF ANY OTHER
STICKNEY, 215 U.S. 98, 105.  NOR DOES IT PRECLUDE THE COMMISSION FROM
CONSIDERING THE VALIDITY OF THE IMPOSITION OR ELIMINATION OF SUCH A
SEPARATELY-STATED CHARGE IN THE LIGHT OF ITS RELATIONSHIP TO THE
THROUGH RATE.  COMPARE ATCHISON, T. & S.F. RY. CO. V. UNITED STATES,
SUPRA. 

WHAT WE HAVE SAID OF SEC. 2 SUFFICES ALSO TO DISPOSE OF THE OBJECTION
BASED ON SEC. 3(1).  THAT SECTION MAKES IT UNLAWFUL TO GIVE AN "UNDUE
OR UNREASONABLE PREFERENCE OR ADVANTAGE" TO, OR IMPOSE AN "UNDUE OR
UNREASONABLE PREJUDICE OR DISADVANTAGE" ON, ANY "PERSON, COMPANY, FIRM,
CORPORATION, ASSOCIATION, LOCALITY, PORT, PORT DISTRICT, GATEWAY,
TRANSIT POINT, REGION, DISTRICT, TERRITORY, OR ANY PARTICULAR
DESCRIPTION OF TRAFFIC."  IT DIFFERS FROM SEC. 2 IN THAT IT MAY BE
AVAILED OF NOT ONLY BY SHIPPERS BUT BY ANY OTHER PERSON WHO HAS BEEN OR
MAY BE INJURED BY AN INEQUALITY OF RATES. 

BUT THE FACTS WHICH WE HOLD SUFFICIENT TO JUSTIFY THE COMMISSION'S
FINDING THAT THE ELIMINATION OF THE LOADING CHARGE DOES NOT RESULT IN
AN UNJUST DISCRIMINATION, ARE SUFFICIENT ALSO TO JUSTIFY ITS FINDING
THAT THE ELIMINATION OF THAT CHARGE DOES NOT CREATE AN UNDUE
PREFERENCE.  COMPARE CLOVER SPLINT COAL CO. V. LOUISVILLE & NASHVILLE
R. CO., 197 I.C.C. 276, 277.  WE HAVE FREQUENTLY SUSTAINED THE
COMMISSION'S DETERMINATION, IN CASES ARISING UNDER SEC. 3, THAT
DIFFERENCES IN COMPETITIVE CONDITIONS JUSTIFY LOWER THROUGH RATES OVER
ONE ROUTE THAN OVER ANOTHER.  TEXAS & PACIFIC RY. CO. V. UNITED STATES,
SUPRA; TEXAS & PACIFIC RY. CO. V. INTERSTATE COMMERCE COMMISSION, 162
U.S. 197, 205-217; INTERSTATE COMMERCE COMM'N V. CHICAGO GREAT WESTERN
RY. CO., 209 U.S. 108, 119, 121-2. 

WE CANNOT SAY HERE, ANY MORE THAN UNDER SEC. 2, THAT THE COMMISSION
COULD NOT REGARD THE TRUCK COMPETITION TO THE SOUTHWEST, AND THE
RELATIVE RATE STRUCTURES, DISCLOSED IN ITS REPORT, AS SUFFICIENT TO
WARRANT THE DIFFERENCE IN THE COST OF THE THROUGH HAUL WHICH RESULTS
FROM THE ELIMINATION OF THE LOADING CHARGE BY THE PRESENT TARIFFS. 

WE HAVE CONSIDERED APPELLANT'S ATTACK ON THE SUFFICIENCY OF THE
EVIDENCE TO SUPPORT THE COMMISSION'S FINDINGS, AND CONCLUDE, AS DID THE
COURT BELOW, THAT THEY ARE ADEQUATELY SUPPORTED BY SUBSTANTIAL EVIDENCE
OF RECORD.  COMPARE FLORIDA V. UNITED STATES, 292 U.S. 1, 12; MERCHANTS
WAREHOUSE CO. V. UNITED STATES, SUPRA, 508.  AFFIRMED. 

FN1 LOADING IS CUSTOMARILY PERFORMED AT THE CARRIER'S EXPENSE ON LESS
THAN-CARLOAD FREIGHT, LOADING COTTON IN OKLAHOMA, 248 I.C.C. 643, 644,
AND AT THE SHIPPER'S EXPENSE ON CARLOAD FREIGHT, MERCHANTS WAREHOUSE
CO. V. UNITED STATES, 283 U.S. 501, 506; PENNSYLVANIA R. CO. V.
KITTANING CO., 253 U.S. 319, 323; LOADING AND UNLOADING CARLOAD
FREIGHT, 101 I.C.C. 394, 396; MCCORMICK WAREHOUSE CO. V. PENNSYLVANIA
R. CO., 148 I.C.C. 299, 300. 

FOR DISCUSSIONS OF LOADING PRACTICES ON COTTON IN THE SOUTHWEST, SEE
COTTON LOADING PROVISIONS IN THE SOUTHWEST, 220 I.C.C. 702; COTTON
LOADING AND UNLOADING IN THE SOUTHWEST, 229 I.C.C. 649. 

FN2  BEAUMONT, CORPUS CHRISTI, GALVESTON, HOUSTON, ORANGE, PORT
ARTHUR, AND TEXAS CITY, TEXAS, AND LAKE CHARLES, LOUISIANA. 

FN3  THE COMMISSION POINTED OUT THAT CARRIERS WERE FREE TO ADOPT FREE
LOADING OR NOT AS THEY CHOSE, AND IN THE SAME PROCEEDING APPROVED AN
APPLICATION OF CERTAIN TEXAS CARRIERS TO REESTABLISH THE LOADING
CHARGE. 

FN4  INSOFAR AS BIRKETT MILLS V. DELAWARE, L. & W.R. CO  123 I.C.C.
63, 65, IS TO THE CONTRARY, IT APPEARS TO REST ON A MISINTERPRETATION
OF THE EFFECT OF OUR DECISION IN CENTRAL R. CO. V. UNITED STATES, 257
U.S. 247, 255.  MOREOVER IT DOES NOT APPEAR THAT THERE WERE PRESENT IN
THAT CASE ANY CIRCUMSTANCES JUSTIFYING A DIFFERENCE IN THE CHARGES FOR
THE TOTAL TRANSPORTATION SERVICES RENDERED. 

FN5  THE COMMISSION HAS NOT INTERPRETED ITS RULE II (C) AS PRECLUDING
IT FROM LOOKING AT RELEVANT CONDITIONS AND CIRCUMSTANCES RELATING TO
THE THROUGH RATE ALTHOUGH ONLY PART OF THAT RATE IS BROUGHT IN ISSUE IN
THE PROCEEDING BEFORE IT AND OTHER CARRIERS PARTICIPATING IN THE
THROUGH RATE HAVE NOT BEEN JOINED AS PARTIES.  WHERE THE ATTACK IS ON A
COMPONENT PART OF THE THROUGH HAUL COST ON GROUNDS OTHER THAN ITS
EFFECT ON THE THROUGH RATE STRUCTURE, THERE IS NO OCCASION FOR JOINING
THE OTHER CARRIERS PARTICIPATING IN THE THROUGH RATE. 

THE COMMISSION HAS FREQUENTLY HELD THAT A COMPLAINANT WHO ATTACKS A
COMPONENT PART OF A THROUGH RATE AS UNREASONABLE OR PREJUDICIAL BECAUSE
OF ITS EFFECT ON THE THROUGH RATE STRUCTURE, MUST JOIN ALL CARRIERS
PARTICIPATING IN THE THROUGH RATE.  STEVENS GROCER CO. V. ST. LOUIS,
I.M. & S. RY. CO., 42 I.C.C. 396, 397-8; CF. CAIRO ASSOCIATION OF
COMMERCE V. ANGELINA & N.R.R. CO., 160 I.C.C. 604, 608-9; SWITCHING AT
MINNEAPOLIS, 235 I.C.C. 405, 410.  BUT IT HAS ALSO HELD THAT A SHIPPER
WHO ATTACKS THE VALIDITY OF A COMPONENT PART OF A THROUGH RATE, VIEWED
SEPARATELY, AND DOES NOT PUT IN ISSUE THE VALIDITY OF THE THROUGH RATE
AS A WHOLE, MAY DO SO WITHOUT JOINING ANY CARRIER OTHER THAN THE ONE
RESPONSIBLE FOR THE PARTICULAR COMPONENT UNDER ATTACK.  CAIRO BOARD OF
TRADE V. CLEVELAND, C., C. & ST. L. RY. CO., 46 I.C.C. 343, 350-51;
INDIANAPOLIS CHAMBER OF COMMERCE V. CLEVELAND, C., C. & ST. L. RY. CO.,
46 I.C.C. 546, 556; PHOENIX UTILITY CO. V. SOUTHERN RY. CO., 173 I.C.C.
500, 501-2, AND CASES CITED; SEE ATCHISON, T. & S.F. RY. CO. V. UNITED
STATES, 279 U.S. 768, 776-7.  IN THE LATTER TYPE OF CASE, WHERE THE
COMPLAINT PUTS IN ISSUE ONLY THE VALIDITY OF ONE PART OF A THROUGH
RATE, THE COMMISSION HAS HELD THAT THE CARRIER IS NOT PRECLUDED FROM
INTRODUCING EVIDENCE TO SHOW THAT THE RATE ATTACKED SHOULD NOT BE SET
ASIDE AS UNLAWFUL, IN VIEW OF ITS RELATIONSHIP TO THE WHOLE THROUGH
RATE.  NEBRASKA-COLORADO GRAIN PRODUCERS ASSN. V. C., B. & Q.R. CO.,
243 I.C.C. 309, 311-13; FRASER-SMITH CO. V. GRAND TRUNK W. RY., 185
I.C.C. 57, 62; ATKINSON MILLING CO. V. CHICAGO, M., ST. P. & P. RY.
CO., 235 I.C.C. 391, 393-4. 

NEBRASKA-COLORADO GRAIN PRODUCERS ASSN. V. C., B. & Q.R. CO., SUPRA,
INVOLVED AN ATTACK ON A COMPONENT PART OF A THROUGH RATE AS
UNREASONABLE AND PREFERENTIAL.  IN DENYING COMPLAINANT'S MOTIONS TO
EXCLUDE EVIDENCE INTRODUCED BY THE CARRIER RELATING TO THE THROUGH RATE
STRUCTURE OF WHICH THE RATE UNDER ATTACK WAS A PART, THE COMMISSION
SAID:  "THE RIGHT TO ATTACK ONE FACTOR OF A COMBINATION THROUGH RATE
WITHOUT PUTTING THE THROUGH RATE IN ISSUE PRESENTS AN ENTIRELY
DIFFERENT QUESTION FROM THAT RAISED BY THESE MOTIONS.  WHILE WE HAVE
CONSISTENTLY HELD, IN THE CASES REFERRED TO BY COMPLAINANT AND
SUPPORTING INTERVENERS, THAT WHERE REPARATION IS NOT CLAIMED, ONE
FACTOR OF A COMBINATION THROUGH RATE MAY BE ASSAILED INDEPENDENTLY OF
THE OTHER FACTOR OR FACTORS OR EVEN OF THE THROUGH RATE ITSELF, THIS
DOES NOT MEAN THAT WE MAY NOT LOOK AT THE THROUGH SITUATION."  THE
COMMISSION FURTHER POINTED OUT THAT, "ALTHOUGH WE HAVE AUTHORITY TO
FIND SEPARATE COMPONENTS OF THROUGH RATES UNLAWFUL, WE MUST, IN DOING
SO, GIVE CAREFUL CONSIDERATION TO THE EFFECT OF SUCH A FINDING ON THE
THROUGH RATES."  243 I.C.C. AT 312, 313.  SIMILARLY IN INVESTIGATION
AND SUSPENSION PROCEEDINGS UNDER SEC. 15(7), WHERE NECESSARILY THE ONLY
RATE IN ISSUE IS THAT PROPOSED AND UNDER SUSPENSION, THE COMMISSION HAS
DEEMED IT PROPER TO CONSIDER THE EFFECT OF THE PROPOSED RATE ON THE
THROUGH RATE STRUCTURE.  LIVESTOCK TO EASTERN DESTINATIONS, 156 I.C.C.
498, 509. 

MR. JUSTICE DOUGLAS, DISSENTING: 

SEC. 2 OF THE ACT MAKES IT UNLAWFUL FOR ANY COMMON CARRIER "BY ANY
SPECIAL RATE, REBATE, DRAWBACK, OR OTHER DEVICE" TO RECEIVE FROM ANY
PERSON "A GREATER OR LESS COMPENSATION FOR ANY SERVICE RENDERED" IN THE
"TRANSPORTATION" OF PASSENGERS OR PROPERTY THAN IT RECEIVES FROM ANY
OTHER PERSON FOR DOING FOR HIM "A LIKE AND CONTEMPORANEOUS SERVICE IN
THE TRANSPORTATION OF A LIKE KIND OF TRAFFIC UNDER SUBSTANTIALLY
SIMILAR CIRCUMSTANCES AND CONDITIONS."  LOADING IS CLEARLY A "SERVICE
RENDERED" IN THE "TRANSPORTATION" OF PROPERTY  FN1  WITHIN THE MEANING
OF SEC. 2.  SEE MERCHANTS WAREHOUSE CO. V. UNITED STATES, 283 U.S.
501.  THE PRACTICE WHICH IS NOW HELD TO BE FREE FROM THE CHARGE OF
UNLAWFUL DISCRIMINATION UNDER SEC. 2 IS THE PRACTICE OF LOADING COTTON
FREE FOR CERTAIN SHIPPERS WHO SHIP TO ONE DESTINATION AND EXACTING A
LOADING CHARGE FROM OTHERS WHO SHIP FROM THE SAME POINTS BUT TO A
DIFFERENT DESTINATION.  THAT IS TO SAY, FREE LOADING OF COTTON IS
ALLOWED SHIPPERS WHO SHIP COTTON FROM OKLAHOMA TO THE TEXAS GULF PORTS;
A LOADING CHARGE  FN2  IS REQUIRED FROM THOSE WHO SHIP COTTON FROM THE
IDENTICAL PLACES IN OKLAHOMA TO THE SOUTHEAST. 

THE COMMISSION IN ITS REPORT JUSTIFIED THAT DISCRIMINATION ON THE
FOLLOWING CONSIDERATIONS:  (1) THERE IS NO TRUCKING OF COTTON BETWEEN
POINTS IN OKLAHOMA AND THE SOUTHEAST, WHILE THERE IS CONSIDERABLE TRUCK
COMPETITION IN THE MOVEMENT OF COTTON FROM OKLAHOMA TO THE TEXAS GULF
PORTS; (2) CARLOAD RATES ON COTTON FROM OKLAHOMA TO THE SOUTHEAST ARE
ON A RELATIVELY LOWER BASIS THAN CARLOAD RATES FROM THE SAME ORIGINS TO
THE TEXAS GULF PORTS; AND (3) RATES FROM POINTS IN OKLAHOMA BOTH TO THE
SOUTHEAST AND TO THE TEXAS GULF PORTS ARE DEPRESSED.  THE COMMISSION IN
ITS REPORT MADE NO SPECIFIC REFERENCE TO SEC. 2.  IT NOW SEEKS TO
SUSTAIN ITS ORDER ON THE GROUND THAT THE CONDITIONS SURROUNDING THE
RESPECTIVE LINE-HAULS JUSTIFIED THE CARRIERS IN ABSORBING THE LOADING
CHARGE IN THE LINE-HAUL RATES FOR ONE SHIPPER BUT NOT FOR ANOTHER.  IT
ENDEAVORS TO AVOID THE ISSUE OF DISCRIMINATION BY CONTENDING THAT SEC.
2 AS A MATTER OF LAW HAS NO APPLICATION TO THE PRESENT SITUATION.  ITS
ARGUMENT IS THAT SEC. 2 DOES NOT APPLY WHERE THE LINE-HAULS ARE NOT
OVER THE SAME LINE, FOR THE SAME DISTANCE, AND TO THE SAME
DESTINATION.  THAT CONTENTION IS BASED ON WIGHT V. UNITED STATES, 167
U.S. 512, WHICH THE COMMISSION CLAIMS TO HAVE FOLLOWED CONSISTENTLY. 
FN3    I DISAGREE WITH THAT CONSTRUCTION OF SEC. 2.  THE WIGHT CASE
INVOLVED A REBATE BY ONE ROAD OF A PART OF THE RATE BETWEEN CINCINNATI
AND PITTSBURGH AND WAS MADE ON ACCOUNT OF DRAYAGE AT THE PITTSBURGH
END.  THE COURT HELD THAT SEC. 2 WAS VIOLATED, SAYING THAT THAT SECTION
"PROHIBITS ANY REBATE OR OTHER DEVICE BY WHICH TWO SHIPPERS, SHIPPING
OVER THE SAME LINE, THE SAME DISTANCE, UNDER THE SAME CIRCUMSTANCES OF
CARRIAGE, ARE COMPELLED TO PAY DIFFERENT PRICES THEREFOR."  167 U.S. P.
518.  IT DOES NOT FOLLOW THAT SEC. 2 APPLIES ONLY WHERE THOSE IDENTICAL
CONDITIONS EXIST.  THUS IN BIRKETT MILLS V. DELAWARE, L. & W.R. CO.,
123 I.C.C. 63, THE COMMISSION HAD BEFORE IT A COMPLAINT OF MILLERS,
GRAIN DEALERS, AND ELEVATOR COMPANIES IN NEW YORK RESPECTING DIFFERENT
TRANSIT CHARGES ON EX-LAKE AND ALL-RAIL TRAFFIC, THE TRANSIT CHARGES
BEING SEPARATELY ESTABLISHED.  IT HELD THAT "AS THE DIFFERING TRANSIT
CHARGES ARE FOR THE SAME TRANSIT SERVICES AT THE SAME POINTS BY THE
SAME CARRIERS, UNJUST DISCRIMINATION UNDER SECTION 2 OF THE ACT
EXISTS."  P. 65.  NO REFERENCE WAS MADE TO LINE-HAUL CONDITIONS, THOUGH
THE RELATION BETWEEN TRANSIT PRIVILEGES AND RATE STRUCTURES IS
INTIMATE.  ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 279 U.S. 768;
BOARD OF TRADE V. UNITED STATES, 314 U.S. 534.  AND THE PRINCIPLES OF
THE BIRKETT MILLS CASE HAVE BEEN APPLIED BY THE COMMISSION TO OTHER
SITUATIONS WHERE THE HAUL WAS NOT OVER THE SAME LINE, FOR THE SAME
DISTANCE, AND TO THE SAME DESTINATION.  SUFFERN GRAIN CO. V. ILLINOIS
CENTRAL R. CO., 22 I.C.C. 178, 183-184; WASHINGTON, D.C., STORE-DOOR
DELIVERY, 27 I.C.C. 347. 

IT WAS STATED IN INTERSTATE COMMERCE COMMISSION V. BALTIMORE & OHIO
R. CO., 145 U.S. 263, 284, THAT "ANY FACT WHICH PRODUCES AN INEQUALITY
OF CONDITION AND A CHANGE OF CIRCUMSTANCES JUSTIFIES AN INEQUALITY OF
CHARGE."  THOSE INEQUALITIES OF CONDITIONS MAY RELATE TO THE
CIRCUMSTANCES OF CARRIAGE.  BUT THE FACT THAT DIFFERENT RATES FOR
CARRIAGE ARE WARRANTED DOES NOT NECESSARILY MEAN THAT DIFFERENT RATES
FOR IDENTICAL ACCESSORIAL SERVICES IN CONNECTION WITH THE CARRIAGE ARE
JUSTIFIED.  THE COURT STATED IN MERCHANTS WAREHOUSE CO. V. UNITED
STATES, SUPRA, P. 511, THAT "SECTION 2 FORBIDS THE CARRIER TO
DISCRIMINATE BY WAY OF ALLOWANCES FOR TRANSPORTATION SERVICES GIVEN TO
ONE, IN CONNECTION WITH THE DELIVERY OF FREIGHT AT HIS PLACE OF
BUSINESS, WHICH IT DENIES TO ANOTHER IN LIKE SITUATION."  AND SEE
BALTIMORE & OHIO R. CO. V. UNITED STATES, 305 U.S. 507, 524.  BY THE
SAME TOKEN, THERE IS A FORBIDDEN DISCRIMINATION, IN CASE OF AN
ACCESSORIAL SERVICE SUCH AS LOADING, WHERE DIFFERENT RATES ARE CHARGED
DIFFERENT SHIPPERS THOUGH THE PHYSICAL SERVICES RENDERED DURING THE
LOADING ARE ALIKE. 

BUT IT IS SAID IN REPLY THAT THERE IS NOTHING IN SEC. 2 WHICH LIMITS
THE PHRASE "UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS"
TO THE CIRCUMSTANCES SURROUNDING THE PARTICULAR ACCESSORIAL SERVICE IN
QUESTION; AND THAT IT IS A FACTUAL ISSUE FOR THE INFORMED JUDGMENT OF
THE COMMISSION WHETHER LINE-HAUL CONDITIONS ARE TO BE CONSIDERED IN
DETERMINING THE VALIDITY OF SEPARATE CHARGES FOR SERVICES SUCH AS
LOADING.  THE ANSWER, HOWEVER, SEEMS CLEAR.  THE SERVICE OF LOADING,
LIKE THE TRANSIT SERVICE IN THE BIRKETT MILLS CASE, IS IDENTICAL
WHETHER THE PROPERTY IS GOING SOUTH OR SOUTHEAST, WHETHER ITS JOURNEY
IS LONG OR SHORT, WHETHER IT IS TRANSPORTED BY ONE CARRIER OR ANOTHER. 
A CARRIER WHICH IS LOADING IN OKLAHOMA ONE CAR OF COTTON FOR A
SOUTHEASTERN MILL AND ANOTHER CAR OF COTTON FOR A GULF PORT IS
CERTAINLY PERFORMING A "LIKE AND CONTEMPORANEOUS SERVICE IN THE
TRANSPORTATION OF A LIKE KIND OF TRAFFIC UNDER SUBSTANTIALLY SIMILAR
CIRCUMSTANCES AND CONDITIONS."  A CARRIER WHICH IS LOADING TWO CARS AT
THE SAME TIME, ON THE SAME SIDING, WITH THE SAME COMMODITY IS INDEED
PERFORMING THE SAME SERVICE UNDER THE SAME CIRCUMSTANCES AND
CONDITIONS.  TO CHARGE THE FIRST SHIPPER FOR LOADING HIS CAR AND TO
LOAD THE OTHER ONE FREE WOULD BE TO IMPAIR THE RULE OF EQUALITY WHICH
SEC. 2 WAS DESIGNED TO INAUGURATE.  INTERSTATE COMMERCE COMMISSION V.
DELAWARE, L. & W.R. CO., 220 U.S. 235; LOUISVILLE & NASHVILLE R. CO. V.
UNITED STATES, 282 U.S. 740, 749-750.  THE RESULT IN THE PRESENT CASE
IS A GROSS DISCRIMINATION AGAINST SHIPPERS TO THE SOUTHEAST.  FN4 

THERE MAY BE CASES OF SPECIAL CHARGES FOR SPECIAL SERVICES WHERE THE
VALIDITY OF THE RATE UNDER SEC. 2 IS DEPENDENT ON WHETHER THE LINE-HAUL
CONDITIONS ARE THE SAME.  FN5  YET SEC. 2, THOUGH PRIMARILY RELATED TO
THE LINE-HAUL, IS NOT RESTRICTED TO IT.  MERCHANTS WAREHOUSE CO. V.
UNITED STATES, SUPRA.  AT LEAST WHERE THE SERVICE IN QUESTION IS PURELY
ACCESSORIAL, SEC. 2 IS APPLICABLE THOUGH THE LINE-HAULS ARE NOT OVER
THE SAME LINE, FOR THE SAME DISTANCE AND TO THE SAME DESTINATION. 
WHERE SEC. 2 IS APPLICABLE, COMPETITIVE FACTORS (SUCH AS THOSE ON WHICH
THE COMMISSION RELIED) ARE NO JUSTIFICATION FOR THE DISCRIMINATION. 
INTERSTATE COMMERCE COMMISSION V. ALABAMA MIDLAND RY. CO., 168 U.S.
144, 166; INTERSTATE COMMERCE COMMISSION V. BALTIMORE & OHIO R. CO.,
225 U.S. 326, 342; SEABOARD AIR LINE RY. CO. V. UNITED STATES, 254 U.S.
57, 62; ABSORPTION OF LOADING CHARGE, 161 I.C.C. 389, 391; ALLOWANCE
FOR DRIVING HORSES, 227 I.C.C. 387, 389.  THE JUSTIFICATION UNDER SEC.
2 FOR "UNEQUAL RATES MUST REST IN THE FACTS OF CARRIAGE AND NOT IN THE
FINANCIAL INTERESTS OF THE CARRIER."  SHARFMAN, THE INTERSTATE COMMERCE
COMMISSION, PT. 3, VOL. B, P. 371. 

THERE ARE, OF COURSE, OCCASIONS WHEN A CONSIDERATION OF THE LINE-HAUL
RATE IN RELATION TO THE CHARGE FOR AN ACCESSORIAL SERVICE IS PROPER. 
THAT IS THE CASE WHERE A RATE HAS BEEN CHALLENGED UNDER SEC. 1(5)(A) AS
NOT BEING "JUST AND REASONABLE."  IN THAT EVENT IT IS WHOLLY PROPER TO
DETERMINE WHETHER ELEMENTS OF COST NOT PROVIDED IN THE SEPARATE RATE
ARE IN FACT INCLUDED IN THE LINE-HAUL RATE.  ATCHISON, T. & S.F. RY.
CO. V. UNITED STATES, 232 U.S. 199, 219-220; PERISHABLE FREIGHT
INVESTIGATION, 56 I.C.C. 449, 461-465; ALTON & SOUTHERN R. CO. V.
UNITED STATES, 49 F.2D 414, 417-428.  BUT THE ISSUES FRAMED BY SEC.
1(5)(A) ARE LARGER THAN THE MORE LIMITED ONES UNDER SEC. 2.  AND THOUGH
THE RATE IS JUST AND REASONABLE UNDER SEC. 1, IT MAY NEVERTHELESS
CREATE AN UNJUST DISCRIMINATION UNDER SEC. 2.  INTERSTATE COMMERCE
COMMISSION V. BALTIMORE & OHIO R. CO., 145 U.S. 263, 277; AMERICAN
EXPRESS CO. V. CALDWELL, 244 U.S. 617, 624; UNITED STATES V. ILLINOIS
CENTRAL R. CO., 263 U.S. 515, 524. 

BUT IT IS SAID THAT THE LOADING CHARGE IS A COMPONENT PART OF THE
TOTAL LINE-HAUL CHARGE; THAT COMPETITIVE CONDITIONS WOULD JUSTIFY A
REDUCTION IN THE LINE-HAUL TARIFF; AND THAT A SHIPPER IS AFFECTED NO
MORE BY AN INCREASE OR DECREASE IN ONE THAN IN THE OTHER.  IT IS
THEREFORE ARGUED THAT CHANGES IN THE CHARGE FOR THIS ACCESSORIAL
SERVICE MAY BE TREATED THE SAME AS IF THE LINE-HAUL TARIFF WERE IN
ISSUE.  THAT ARGUMENT, HOWEVER, RESULTS IN THIS:  AN ADJUSTMENT IN
CHARGES FOR ACCESSORIAL SERVICES SUCH AS LOADING IS UTILIZED AS AN
INDIRECT METHOD OF ADJUSTING LINE-HAUL RATES.  THAT IS NOT PERMITTED
UNDER THIS STATUTORY SYSTEM.  ALTHOUGH CHARGES FOR SERVICES SUCH AS
LOADING ARE A PART OF THE TOTAL LINE-HAUL CHARGE, THEY MUST BE
SEPARATELY STATED IN THE TARIFFS.  SEC. 6(1); RULE 10(A), SUPRA, NOTE
2.  THIS PROCEEDING PUT IN ISSUE NOT THE LINE-HAUL TARIFF BUT THE
SEPARATELY STATED CHARGE FOR LOADING, SINCE THE AMENDED TARIFF MADE NO
CHANGE IN THE FORMER.  TO ALLOW THIS PROCEEDING TO BE USED TO ADJUST
INDIRECTLY THE LINE-HAUL TARIFF IS TO CIRCUMVENT THE ACT.  THE
DIFFERENCE BETWEEN THE REMOVAL OF A DISCRIMINATION AND THE ADJUSTMENT
OR FIXING OF RATES HAS LONG BEEN RECOGNIZED.  ST. LOUIS S.W. RY. CO. V.
UNITED STATES, 245 U.S. 136, 145.  THE PRESENT LINE-HAUL RATE IS A
THROUGH OR JOINT RATE IN WHICH CARRIERS OTHER THAN THE APPELLEE ROADS
PARTICIPATE.  THOSE OTHER CARRIERS ARE NOT PARTIES TO THIS PROCEEDING;
NOR DOES IT APPEAR THAT THEY HAVE CONSENTED TO ANY ADJUSTMENT OF THE
LINE-HAUL RATES.  CONGRESS HAS PRESCRIBED IN SEC. 15(3) HOW THOSE RATES
MAY BE ADJUSTED.  IT MAY BE DONE ONLY AFTER A "FULL HEARING," WHICH
MEANS THAT ALL OTHER CARRIERS WHO ARE PARTIES TO THE TARIFF MUST BE
JOINED.  STEVENS GROCER CO. V. ST. LOUIS, I.M. & S. RY. CO., 42 I.C.C.
396, 398; MCDAVITT BROS. V. ST. LOUIS, B. & M. RY. CO., 43 I.C.C. 695;
UNITED STATES V. ABILENE & SO. RY. CO., 265 U.S. 274, 283, NOTE 6;
RULES OF PRACTICE (I.C.C. 1936), RULE II (C) AND (D).  AND THE
COMMISSION MAY THEN ADJUST THE THROUGH RATES OR JOINT RATES EITHER WITH
OR WITHOUT THE CONSENT OF THE CARRIERS.  ST. LOUIS S.W. RY. CO. V.
UNITED STATES, SUPRA.  ON THE OTHER HAND, THE LOADING CHARGE, LIKE THE
TRANSIT PRIVILEGE INVOLVED IN CENTRAL R. CO. V. UNITED STATES, 257 U.S.
247, 255, 259, IS A TARIFF FOR WHICH OTHER CARRIERS PARTICIPATING IN
THE THROUGH OR JOINT RATES ARE NOT NECESSARILY RESPONSIBLE.  IN SHORT,
CONGRESS HAS PRESCRIBED THE PROCEDURE FOR OBTAINING ADJUSTMENTS OF LINE
HAUL RATES.  THAT METHOD IS DIFFERENT FROM THE ONE PROVIDED FOR
ADJUSTING A SEPARATE TARIFF OF THE KIND WE HAVE HERE.  WE SHOULD NOT
ALLOW THE PROCEDURE FOR READJUSTING LINE-HAUL RATES TO BE CIRCUMVENTED
THROUGH THE REBATE ROUTE.  CF. CENTRAL R. CO. V. UNITED STATES, SUPRA. 

THE DETERMINATION BY THE COMMISSION ON THE QUESTION OF DISCRIMINATION
UNDER SEC. 2 IS ORDINARILY A QUESTION OF FACT.  NASHVILLE, C. & ST. L.
RY. CO. V. TENNESSEE, 262 U.S. 318, 322.  ITS FINDINGS ON THAT ISSUE
ARE ENTITLED TO GREAT WEIGHT (SEABOARD AIR LINE RY. CO. V. UNITED
STATES, SUPRA) AND WILL BE GIVEN THE RESPECT WHICH EXPERT JUDGMENT ON
THE INTRICACIES OF RATE STRUCTURES DESERVES.  BUT DISREGARD OF THE
STATUTORY STANDARDS IS ANOTHER MATTER.  CENTRAL R. CO. V. UNITED
STATES, SUPRA. 

SINCE I WOULD REST THE REVERSAL OF THE JUDGMENT BELOW ON SEC. 2, IT
IS NOT NECESSARY FOR ME TO REACH THE ISSUES RAISED UNDER SEC. 3. 

FN1  SEC. 1(3)(A) DEFINES "TRANSPORTATION" SO AS TO INCLUDE "ALL
SERVICES IN CONNECTION WITH THE RECEIPT, DELIVERY  ...  AND HANDLING OF
PROPERTY TRANSPORTED." 

FN2  THE LOADING CHARGE IS 5.5[ PER SQUARE BALE OF COTTON AND 2.75[
PER ROUND BALE.  THIS LOADING RATE IS CARRIED SEPARATELY IN THE TARIFFS
AS IS REQUIRED BY SEC. 6(1) OF THE ACT.  SEE TARIFF CIRCULAR 20(I.C.C.
1933), RULE 10(A). 

FN3  RICHMOND CHAMBER OF COMMERCE V. SEABOARD AIR LINE RAILWAY, 44
I.C.C. 455, 464-466; PACIFIC LUMBER CO. V. N.W.P.R. CO., 51 I.C.C. 738,
760; TIDE WATER OIL CO. V. DIRECTOR GENERAL, 62 I.C.C. 226, 227;
STANDARD OIL CO. V. DIRECTOR GENERAL, 87 I.C.C. 214; BUNKER HILL &
SULLIVAN M. & C. CO. V. N.P. RY. CO., 129 I.C.C. 242, 246; CANE SUGAR
FROM WISCONSIN TO MINNESOTA, 203 I.C.C. 373, 376; MILLER WASTE MILLS,
INC. V. CHICAGO, M., ST. P. & P.R. CO., 226 I.C.C. 451, 453. 

FN4  NONE OF THE CARRIERS TO THE SOUTHEAST SERVES THE GULF PORTS. 
APPELLEE CARRIERS HAVE ONLY A SHORT PART OF THE LINE-HAUL ON COTTON
FROM OKLAHOMA TO THE SOUTHEAST. 

FN5  THE COMMISSION APPARENTLY HAS SO TREATED THE PROBLEM OF
ABSORPTION OF SWITCHING CHARGES.  SEE TIDE WATER OIL CO. V. DIRECTOR
GENERAL, 62 I.C.C. 226; RESTRICTION OF KANSAS CITY SWITCHING DISTRICT,
146 I.C.C. 438, 440.  AND SEE SEABOARD AIR LINE RY. CO. V. UNITED
STATES, 254 U.S. 57.  CF. UNITED STATES V. AMERICAN TIN PLATE CO., 301
U.S. 402. 

MR. JUSTICE ROBERTS, MR. JUSTICE BLACK AND MR. JUSTICE REED JOIN IN
THIS DISSENT. 
..END :












ROCHE V. EVAPORATED MILK ASSN., 319 U.S. 21 


NO. 584.  ARGUED APRIL 6, 1943.  - DECIDED MAY 3, 1943.  - 130 F.2D 843,
REVERSED. 


1.  THE CIRCUIT COURT OF APPEALS IS EMPOWERED BY SEC. 262 OF THE
JUDICIAL CODE TO ISSUE ALL WRITS, NOT SPECIFICALLY PROVIDED FOR BY
STATUTE, WHICH MAY BE NECESSARY FOR THE EXERCISE OF ITS JURISDICTION,
AGREEABLY TO THE USAGES AND PRINCIPLES OF LAW.  P. 24. 

2.  AS THE JURISDICTION OF THE CIRCUIT COURT OF APPEALS IS
EXCLUSIVELY APPELLATE, ITS AUTHORITY TO ISSUE WRITS OF MANDAMUS IS
RESTRICTED TO THOSE CASES IN WHICH THE WRIT IS IN AID OF THAT
JURISDICTION.  P. 25. 

3.  THE AUTHORITY OF THE CIRCUIT COURT OF APPEALS TO ISSUE WRITS OF
MANDAMUS IS NOT CONFINED TO THE ISSUANCE OF WRITS IN AID OF A
JURISDICTION ALREADY ACQUIRED BY APPEAL BUT EXTENDS TO THOSE CASES
WHICH ARE WITHIN ITS APPELLATE JURISDICTION ALTHOUGH NO APPEAL HAS BEEN
PERFECTED.  P. 25. 

4.  THE COMMON LAW WRITS, LIKE EQUITABLE REMEDIES, MAY BE GRANTED OR
WITHHELD IN THE SOUND DISCRETION OF THE COURT.  P. 25. 

5.  IN THE CIRCUMSTANCES OF THIS CASE, ISSUANCE BY THE CIRCUIT COURT
OF APPEALS OF A WRIT OF MANDAMUS, DIRECTING THE DISTRICT COURT TO
REINSTATE THE DEFENDANTS' PLEAS IN ABATEMENT TO AN INDICTMENT FOR
VIOLATION OF THE SHERMAN ACT AND TO SET FOR TRIAL THE ISSUES RAISED BY
THE PLEAS AND REPLICATIONS, WAS INAPPROPRIATE.  P. 25. 

THE DISTRICT COURT'S ORDER STRIKING THE PLEAS IN ABATEMENT WAS AN
EXERCISE OF ITS JURISDICTION AND INVOLVED NO ABUSE OF JUDICIAL POWER;
THE LEGISLATION AND POLICY OF CONGRESS BY WHICH AN APPELLATE REVIEW OF
SUCH ORDERS MAY BE HAD ONLY ON REVIEW OF A FINAL JUDGMENT OF CONVICTION
ARE NOT TO BE CIRCUMVENTED BY RESORT TO MANDAMUS. 

6.  WHERE THE APPEAL STATUTES ESTABLISH THE CONDITIONS OF APPELLATE
REVIEW, AN APPELLATE COURT CAN NOT RIGHTLY EXERCISE ITS DISCRETION TO
ISSUE A WRIT THE ONLY EFFECT OF WHICH WOULD BE TO AVOID THOSE
CONDITIONS AND THWART THE CONGRESSIONAL POLICY AGAINST PIECEMEAL
APPEALS IN CRIMINAL CASES.  P. 30. 

ROCHE, U.S. DISTRICT JUDGE, ET AL. V. EVAPORATED MILK ASSOCIATION ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 318 U.S. 747, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS DIRECTING THE ISSUANCE OF A WRIT OF MANDAMUS TO THE DISTRICT
JUDGE AND THE DISTRICT COURT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE CIRCUIT COURT OF APPEALS
BELOW RIGHTLY ISSUED ITS WRIT OF MANDAMUS TO THE DISTRICT COURT TO
CORRECT THAT COURT'S ALLEGED ERROR IN STRIKING RESPONDENT'S PLEAS IN
ABATEMENT TO A CRIMINAL INDICTMENT. 

AN INDICTMENT RETURNED IN JUNE, 1941, BY THE GRAND JURY SITTING IN
THE DISTRICT COURT FOR SOUTHERN CALIFORNIA, CHARGED RESPONDENTS AND
OTHERS WITH CONSPIRACY TO FIX THE PRICE OF EVAPORATED MILK SOLD IN
INTERSTATE COMMERCE IN VIOLATION OF SECS. 1 AND 3 OF THE SHERMAN ACT,
15 U.S.C. SECS. 1, 3.  THE INDICTMENT RECITED THAT THE GRAND JURY WHICH
RETURNED IT HAD BEEN IMPANELED AT THE NOVEMBER, 1940, TERM OF COURT;
THAT IT HAD "BEGUN BUT NOT FINISHED DURING SAID NOVEMBER 1940 TERM OF
SAID COURT, AN INVESTIGATION OF THE MATTERS CHARGED IN THIS
INDICTMENT"; AND THAT BY ORDER OF THE COURT THE GRAND JURY HAD
CONTINUED TO SIT DURING THE MARCH, 1941, TERM "FOR THE SOLE PURPOSE OF
FINISHING INVESTIGATIONS BEGUN BUT NOT COMPLETED DURING SAID NOVEMBER
TERM." 

IN SEPTEMBER, 1941, RESPONDENTS FILED PLEAS IN ABATEMENT, ASKING THAT
THE INDICTMENT BE QUASHED FOR WANT OF JURISDICTION OF THE COURT, ON
AVERMENTS THAT THE MINUTES OF THE GRAND JURY FOR ITS MEETING OF
FEBRUARY 28, 1941, DISCLOSED THAT NO INVESTIGATION OF ANY MATTER
MENTIONED IN THE INDICTMENT HAD BEEN "BEGUN" BY THE GRAND JURY WITHIN
THE MEANING OF SEC. 284 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 421,  FN1
DURING THE NOVEMBER, 1940, TERM OF COURT, WHICH EXPIRED MARCH 2, 1941. 
FN2 

THE GOVERNMENT FILED REPLICATIONS DENYING GENERALLY ALL THE
ALLEGATIONS OF THE PLEAS, AND THE ISSUES THUS RAISED WERE SET FOR TRIAL
BEFORE A JURY.  THEREAFTER LEAVE WAS GRANTED TO THE GOVERNMENT TO
WITHDRAW ITS REPLICATIONS AND TO FILE DEMURRERS TO THE PLEAS, AND
MOTIONS TO STRIKE THEM BECAUSE INSUFFICIENT IN LAW, BECAUSE THEY FAILED
TO STATE SPECIFIC FACTS WITH SUFFICIENT CERTAINTY, AND BECAUSE THEY
ALLEGED FACTS WHICH COULD NOT BE WITHIN THE PLEADERS' KNOWLEDGE.  AFTER
ARGUMENT THE DISTRICT COURT SUSTAINED THE DEMURRERS AND GRANTED THE
MOTIONS.  RESPONDENTS THEREUPON INSTITUTED THE PRESENT PROCEEDING BY
THEIR PETITION TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT,
PRAYING THAT A WRIT OF MANDAMUS ISSUE DIRECTING PETITIONERS - THE
HONORABLE MICHAEL J. ROCHE, DISTRICT JUDGE, AND THE DISTRICT COURT - TO
REINSTATE THE PLEAS IN ABATEMENT AND THE GOVERNMENT'S REPLICATIONS, AND
TO SET THE ISSUES RAISED BY THE PLEAS AND REPLICATIONS FOR JURY TRIAL. 

ON THE PETITION FOR THE WRIT AND THE GOVERNMENT'S RETURN, THE COURT
OF APPEALS ORDERED THE WRIT TO ISSUE.  UPON REHEARING BEFORE THE FULL
COURT SITTING EN BANC THE COURT HELD THAT IT HAD JURISDICTION TO ISSUE
THE WRIT; THAT THE DISTRICT COURT HAD ERRED IN STRIKING THE PLEAS IN
ABATEMENT; THAT THE CASE WAS AN APPROPRIATE ONE FOR INTERVENTION BY
MANDAMUS; AND THAT THE WRIT SHOULD ISSUE DIRECTING PETITIONERS TO
REINSTATE THE PLEAS IN ABATEMENT AND THE REPLICATIONS, AND TO TRY THE
ISSUES OF FACT THUS RAISED.  130 F.2D 843.  THE COURT OF APPEALS SEEMS
TO HAVE REGARDED THE DISTRICT COURT'S ORDER STRIKING THE PLEAS IN
ABATEMENT AS IN EFFECT A REFUSAL TO ACT UPON THE PLEAS, ID. 845.  WE
GRANTED CERTIORARI, 318 U.S. 747, ON A PETITION WHICH SET UP THAT THE
CIRCUIT COURT OF APPEALS ERRED IN DIRECTING THAT MANDAMUS ISSUE, AND IN
HOLDING THAT THE DISTRICT COURT ERRED IN STRIKING THE PLEAS IN
ABATEMENT. 

PETITIONERS CONCEDE THAT THE CIRCUIT COURTS OF APPEALS, LIKE THIS
COURT, MAY, AS PROVIDED BY SEC. 262 OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 377, "ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED FOR BY STATUTE,
WHICH MAY BE NECESSARY FOR THE EXERCISE OF THEIR RESPECTIVE
JURISDICTIONS, AND AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW." 
MCCLELLAN V. CARLAND, 217 U.S. 268, 279; ADAMS V. UNITED STATES EX REL.
MCCANN, 317 U.S. 269, 272-3.  THEY ARGUE THAT AS THE DISTRICT COURT'S
ORDER STRIKING THE PLEAS IN ABATEMENT WAS AN EXERCISE OF ITS
JURISDICTION, ITS ACTION IS REVIEWABLE ONLY ON APPEAL AND NOT BY
MANDAMUS, AND THAT SINCE BY CONGRESSIONAL ENACTMENT AND POLICY
APPELLATE REVIEW OF THE DISTRICT COURT'S ORDER MAY BE HAD ONLY ON
REVIEW OF A FINAL JUDGMENT OF CONVICTION, THAT LEGISLATION AND POLICY
ARE NOT TO BE CIRCUMVENTED BY RESORT TO MANDAMUS. 

WE ARE OF OPINION THAT IN THE CIRCUMSTANCES OF THIS CASE THESE ARE
VALID OBJECTIONS TO THE EXERCISE BY THE CIRCUIT COURT OF APPEALS OF ITS
DISCRETIONARY POWER TO ISSUE THE WRIT. 

AS THE JURISDICTION OF THE CIRCUIT COURT OF APPEALS IS EXCLUSIVELY
APPELLATE, ITS AUTHORITY TO ISSUE WRITS OF MANDAMUS IS RESTRICTED BY
STATUTE TO THOSE CASES IN WHICH THE WRIT IS IN AID OF THAT
JURISDICTION.  ITS AUTHORITY IS NOT CONFINED TO THE ISSUANCE OF WRITS
IN AID OF A JURISDICTION ALREADY ACQUIRED BY APPEAL BUT EXTENDS TO
THOSE CASES WHICH ARE WITHIN ITS APPELLATE JURISDICTION ALTHOUGH NO
APPEAL HAS BEEN PERFECTED.  OTHERWISE THE APPELLATE JURISDICTION COULD
BE DEFEATED AND THE PURPOSE OF THE STATUTE AUTHORIZING THE WRIT
THWARTED BY UNAUTHORIZED ACTION OF THE DISTRICT COURT OBSTRUCTING THE
APPEAL.  EX PARTE BRADSTREET, 7 PET. 634; INSURANCE COMPANY V.
COMSTOCK, 16 WALL.  258, 270; MCCLELLAN V. CARLAND, SUPRA, 280; EX
PARTE UNITED STATES, 287 U.S. 241, 246; CF. EX PARTE SIEBOLD, 100 U.S.
371, 374-5; EX PARTE PERU, 318 U.S. 578, AND CASES CITED. 

THE COMMON LAW WRITS, LIKE EQUITABLE REMEDIES, MAY BE GRANTED OR
WITHHELD IN THE SOUND DISCRETION OF THE COURT.  EX PARTE PERU, SUPRA,
P. 584, AND CASES CITED; WHITNEY V. DICK, 202 U.S. 132, 136, 140. 
HENCE THE QUESTION PRESENTED ON THIS RECORD IS NOT WHETHER THE COURT
BELOW HAD POWER TO GRANT THE WRIT BUT WHETHER IN THE LIGHT OF ALL THE
CIRCUMSTANCES THE CASE WAS AN APPROPRIATE ONE FOR THE EXERCISE OF THAT
POWER.  IN DETERMINING WHAT IS APPROPRIATE WE LOOK TO THOSE PRINCIPLES
WHICH SHOULD GUIDE JUDICIAL DISCRETION IN THE USE OF AN EXTRAORDINARY
REMEDY RATHER THAN TO FORMAL RULES RIGOROUSLY CONTROLLING JUDICIAL
ACTION.  CONSIDERATIONS OF IMPORTANCE TO OUR ANSWER HERE ARE THAT THE
TRIAL COURT, IN STRIKING THE PLEAS IN ABATEMENT, ACTED WITHIN ITS
JURISDICTION AS A DISTRICT COURT; THAT NO ACTION OR OMISSION ON ITS
PART HAS THWARTED OR TENDS TO THWART APPELLATE REVIEW OF THE RULING;
AND THAT WHILE A FUNCTION OF MANDAMUS IN AID OF APPELLATE JURISDICTION
IS TO REMOVE OBSTACLES TO APPEAL, IT MAY NOT APPROPRIATELY BE USED
MERELY AS A SUBSTITUTE FOR THE APPEAL PROCEDURE PRESCRIBED BY THE
STATUTE. 

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.  EX PARTE
PERU, SUPRA, P. 584, AND CASES CITED; EX PARTE NEWMAN, 14 WALL.  152,
165-6, 169; EX PARTE SAWYER, 21 WALL.  235, 238; INTERSTATE COMMERCE
COMM'N V. UNITED STATES EX REL. CAMPBELL, 289 U.S. 385, 394.  EVEN IN
SUCH CASES APPELLATE COURTS ARE RELUCTANT TO INTERFERE WITH THE
DECISION OF A LOWER COURT ON JURISDICTIONAL QUESTIONS WHICH IT WAS
COMPETENT TO DECIDE AND WHICH ARE REVIEWABLE IN THE REGULAR COURSE OF
APPEAL.  EX PARTE HARDING, 219 U.S. 363, 369; CF. STOLL V. GOTTLIEB,
305 U.S. 165; TREINIES V. SUNSHINE MINING CO., 308 U.S. 66. 

BUT THE PRESENT CASE INVOLVES NO QUESTION OF THE JURISDICTION OF THE
DISTRICT COURT.  ITS JURISDICTION OF THE PERSONS OF THE DEFENDANTS, AND
OF THE SUBJECT MATTER CHARGED BY THE INDICTMENT, IS NOT QUESTIONED. 
THIS IS NOT A CASE LIKE EX PARTE BAIN, 121 U.S. 1, WHERE THE PETITIONER
HAD BEEN CONVICTED ON AN INDICTMENT WHICH, BECAUSE IT HAD BEEN AMENDED
AFTER IT WAS RETURNED BY THE GRAND JURY, WAS THOUGHT TO BE "NO
INDICTMENT OF A GRAND JURY."  HERE THE INDICTMENT WAS RETURNED BY THE
REQUISITE NUMBER OF DULY QUALIFIED GRAND JURORS, ACTING UNDER ORDER OF
THE COURT CONTINUING THE GRAND JURY IN SESSION.  THE OBJECTION THAT THE
SUBJECT MATTER OF THE INDICTMENT WAS NOT ONE WHICH THE JURY HAD BEEN OR
COULD BE CONTINUED TO HEAR WAS AT MOST AN IRREGULARITY WHICH, IF THE
PROPER SUBJECT OF A PLEA IN ABATEMENT, DID NOT AFFECT THE JURISDICTION
OF THE COURT.  CF. BREESE V. UNITED STATES, 226 U.S. 1, 10-11; KAIZO V.
HENRY, 211 U.S. 146, 149; MATTER OF MORAN, 203 U.S. 96, 104; HARLAN V.
MCGOURIN, 218 U.S. 442, 451; IN RE WARD, 173 U.S. 452, 454. 

NOR DOES THIS CASE INVOLVE A REFUSAL BY THE DISTRICT COURT TO
ADJUDICATE ISSUES PROPERLY PRESENTED TO IT, SUCH AS JUSTIFIED THE
ISSUANCE OF THE WRIT IN MCCLELLAN V. CARLAND, SUPRA. COMPARE EX PARTE
UNITED STATES, SUPRA.  IN SUSTAINING THE GOVERNMENT'S DEMURRERS TO THE
PLEAS AND ITS MOTIONS TO STRIKE, THE DISTRICT COURT DID NOT, AS THE
COURT BELOW SEEMED TO THINK, REFUSE TO ACT ON THE PLEAS.  INSTEAD, IT
HELD THAT THEY WERE INSUFFICIENT IN LAW TO ABATE THE CRIMINAL
PROSECUTION.  IN THUS RULING ON QUESTIONS OF LAW DECISIVE OF THE ISSUE
PRESENTED BY THE PLEAS AND REPLICATIONS THE DISTRICT COURT ACTED WITHIN
ITS JURISDICTION AS A FEDERAL COURT TO DECIDE ISSUES PROPERLY BROUGHT
BEFORE IT.  ITS DECISION, EVEN IF ERRONEOUS - A QUESTION ON WHICH WE DO
NOT PASS - INVOLVED NO ABUSE OF JUDICIAL POWER, AND ANY ERROR WHICH IT
MAY HAVE COMMITTED IS REVIEWABLE BY THE CIRCUIT COURT OF APPEALS UPON
APPEAL APPROPRIATELY TAKEN FROM A FINAL JUDGMENT, AND BY THIS COURT BY
WRIT OF CERTIORARI.  FN3 

ORDINARILY MANDAMUS MAY NOT BE RESORTED TO AS A MODE OF REVIEW WHERE
A STATUTORY METHOD OF APPEAL HAS BEEN PRESCRIBED OR TO REVIEW AN
APPEALABLE DECISION OF RECORD.  EX PARTE MORGAN, 114 U.S. 174, 175; IN
RE ATLANTIC CITY R. CO., 164 U.S. 633, 635; EX PARTE ROE, 234 U.S. 70,
73; EX PARTE PARK SQUARE AUTOMOBILE STATION, 244 U.S. 412, 414; EX
PARTE RIDDLE, 255 U.S. 450, 451.  CIRCUIT COURTS OF APPEALS, WITH
EXCEPTIONS NOT NOW MATERIAL, HAVE JURISDICTION TO REVIEW ONLY FINAL
DECISIONS OF DISTRICT COURTS, 28 U.S.C. SEC. 225(A).  FN4  RESPONDENTS
STRESS THE INCONVENIENCE OF REQUIRING THEM TO UNDERGO A TRIAL IN
ADVANCE OF AN APPELLATE DETERMINATION OF THE CHALLENGE NOW MADE TO THE
VALIDITY OF THE INDICTMENT.  WE MAY ASSUME, AS THEY ALLEGE, THAT THAT
TRIAL MAY BE OF SEVERAL MONTHS' DURATION AND MAY BE CORRESPONDINGLY
COSTLY AND INCONVENIENT.  BUT THAT INCONVENIENCE IS ONE WHICH WE MUST
TAKE IT CONGRESS CONTEMPLATED IN PROVIDING THAT ONLY FINAL JUDGMENTS
SHOULD BE REVIEWABLE.  WHERE THE APPEAL STATUTES ESTABLISH THE
CONDITIONS OF APPELLATE REVIEW, AN APPELLATE COURT CANNOT RIGHTLY
EXERCISE ITS DISCRETION TO ISSUE A WRIT WHOSE ONLY EFFECT WOULD BE TO
AVOID THOSE CONDITIONS AND THWART THE CONGRESSIONAL POLICY AGAINST
PIECEMEAL APPEALS IN CRIMINAL CASES.  COBBLEDICK V. UNITED STATES, 309
U.S. 323.  AS WAS POINTED OUT BY CHIEF JUSTICE MARSHALL, TO GRANT THE
WRIT IN SUCH A CASE WOULD BE A "PLAIN EVASION" OF THE CONGRESSIONAL
ENACTMENT THAT ONLY FINAL JUDGMENTS BE BROUGHT UP FOR APPELLATE
REVIEW.  "THE EFFECT THEREFORE OF THIS MODE OF INTERPOSITION WOULD BE
TO RETARD DECISIONS UPON QUESTIONS WHICH WERE NOT FINAL IN THE COURT
BELOW, SO THAT THE SAME CAUSE MIGHT COME BEFORE THIS COURT MANY TIMES
BEFORE THERE COULD BE A FINAL JUDGMENT."  BANK OF COLUMBIA V. SWEENEY,
1 PET. 567, 569.  SEE ALSO LIFE & FIRE INSURANCE CO. V. ADAMS, 9 PET.
573, 602; EX PARTE HOARD, 105 U.S. 578, 579-80; AMERICAN CONSTRUCTION
CO. V. JACKSONVILLE, T. & K.W. RY. CO., 148 U.S. 372, 379. 

FOR THAT REASON THIS COURT HAS CONSISTENTLY REFUSED TO SUSTAIN THE
USE OF MANDAMUS AS A MEANS OF REVIEWING THE ACTION OF A DISTRICT COURT
IN DENYING A MOTION TO REMAND A CAUSE TO THE STATE COURT FROM WHICH IT
HAD BEEN REMOVED.  EX PARTE HOARD, SUPRA; EX PARTE HARDING, SUPRA; EX
PARTE ROE, SUPRA; EX PARTE PARK SQUARE AUTOMOBILE STATION, SUPRA.  FN5
AND FOR THE SAME REASON IT HAS HELD IN OTHER CASES THAT THE WRIT WILL
NOT ISSUE TO REVIEW AN ORDER OVERRULING A PLEA TO THE JURISDICTION, IN
RE ATLANTIC CITY R. CO., SUPRA; EX PARTE CHICAGO, R.I. & P. RY. CO.,
255 U.S. 273, 280; CF. IN RE NEW YORK & PORTO RICO S.S. CO., 155 U.S.
523, 531, OR DENYING A NONSUIT, EX PARTE LORING, 94 U.S. 418, DESPITE
THE INCONVENIENCE TO PETITIONER OF BEING FORCED TO PROCEED TO TRIAL IN
ADVANCE OF A REVIEW OF THE COURT'S ACTION.  EX PARTE WHITNEY, 13 PET.
404, 408; EX PARTE PERRY, 102 U.S. 183, 186.  HERE THE INCONVENIENCE TO
THE LITIGANTS RESULTS ALONE FROM THE CIRCUMSTANCE THAT CONGRESS HAS
PROVIDED FOR REVIEW OF THE DISTRICT COURT'S ORDER ONLY ON REVIEW OF THE
FINAL JUDGMENT, AND NOT FROM AN ABUSE OF JUDICIAL POWER, OR REFUSAL TO
EXERCISE IT, WHICH IT IS THE FUNCTION OF MANDAMUS TO CORRECT.  HENCE
THERE ARE IN THIS CASE NO SPECIAL CIRCUMSTANCES WHICH WOULD JUSTIFY THE
ISSUANCE OF THE WRIT, SUCH AS THE PERSISTENT DISREGARD OF THE RULES OF
CIVIL PROCEDURE PRESCRIBED BY THIS COURT, FOUND IN MCCULLOUGH V.
COSGRAVE, 309 U.S. 634(SEE LOS ANGELES BRUSH CO. V. JAMES, 272 U.S.
701, 706-8); OR THE REFUSAL TO PERFORM A PLAIN MINISTERIAL DUTY,
INVOLVED IN EX PARTE UNITED STATES, SUPRA; OR THE CONSIDERATIONS OF
COMITY BETWEEN STATE AND FEDERAL COURTS, THOUGHT TO BE CONTROLLING IN
MARYLAND V. SOPER (NO. 1), 270 U.S. 9, 29.    THE DECISIONS OF THIS
COURT ON WHICH RESPONDENTS ESPECIALLY RELY ARE NOT APPLICABLE HERE.  IN
EX PARTE SIMONS, 247 U.S. 231, THE WRIT DIRECTED THE DISTRICT COURT TO
SET ASIDE ITS ORDER TRANSFERRING TO THE EQUITY DOCKET A CASE PLAINLY
TRIABLE AT LAW BY JURY.  THE DISTRICT COURT'S ORDER WAS REGARDED BY
THIS COURT "AS HAVING REPUDIATED JURISDICTION" OF THE SUIT.  IN EX
PARTE PETERSON, 253 U.S. 300, IN WHICH THE WRIT WAS SOUGHT SIMILARLY TO
COMPEL THE DISTRICT COURT TO SET ASIDE ITS ORDER REFERRING THE CAUSE TO
AN AUDITOR, THE APPLICATION WAS DENIED BECAUSE THE ORDER WAS HELD NOT
TO PRECLUDE A JURY TRIAL.  AND IN EX PARTE SKINNER & EDDY, 265 U.S. 86,
THE WRIT PROHIBITED THE COURT OF CLAIMS FROM EXERCISING JURISDICTION,
CONTRARY TO STATUTE, OVER A SUIT WHICH IT HAD PREVIOUSLY DISMISSED. 
THERE ITS ASSUMPTION OF JURISDICTION WOULD HAVE DEPRIVED THE LITIGANTS
OF TRIAL BY JURY IN A STATE COURT WHERE AN ACTION AGAINST AN AGENCY OF
THE UNITED STATES INVOLVING THE SAME ISSUE WAS PENDING.  THUS IN THE
TWO CASES IN WHICH THE WRIT WAS GRANTED, IT WAS ISSUED IN AID OF THE
APPELLATE JURISDICTION OF THIS COURT TO COMPEL AN INFERIOR COURT TO
RELINQUISH A JURISDICTION WHICH IT COULD NOT LAWFULLY EXERCISE OR TO
EXERCISE A JURISDICTION WHICH IT HAD UNLAWFULLY REPUDIATED.  CF. EX
PARTE PERU, SUPRA.  IN THE PRESENT CASE THE DISTRICT COURT HAS ACTED
WITHIN ITS JURISDICTION AND HAS RENDERED A DECISION WHICH, EVEN IF
ERRONEOUS, INVOLVED NO ABUSE OF JUDICIAL POWER.  IN ISSUING THE WRIT
THE COURT OF APPEALS BELOW HAS DONE NO MORE THAN SUBSTITUTE MANDAMUS
FOR AN APPEAL CONTRARY TO THE STATUTES AND THE POLICY OF CONGRESS,
WHICH HAS RESTRICTED THAT COURT'S APPELLATE REVIEW TO FINAL JUDGMENTS
OF THE DISTRICT COURT.  REVERSED. 

FN1  THAT SECTION PROVIDES IN PART: 

"A DISTRICT JUDGE MAY, UPON REQUEST OF THE DISTRICT ATTORNEY OR OF
THE GRAND JURY OR ON HIS OWN MOTION, BY ORDER AUTHORIZE ANY GRAND JURY
TO CONTINUE TO SIT DURING THE TERM SUCCEEDING THE TERM AT WHICH SUCH
REQUEST IS MADE, SOLELY TO FINISH INVESTIGATIONS BEGUN BUT NOT FINISHED
BY SUCH GRAND JURY, BUT NO GRAND JURY SHALL BE PERMITTED TO SIT IN ALL
DURING MORE THAN EIGHTEEN MONTHS ...  " 

FN2  THE GRAND JURY MINUTES FOR FEBRUARY 28, 1941, STATED: 

"SPECIAL MEETING OF THE FEDERAL GRAND JURY HELD THIS DAY, FOREMAN
MRS. HATTIE H. SLOSS, PRESIDING.  MINUTES OF PREVIOUS MEETING READ AND
APPROVED AS CORRECTED.  (SEE BELOW.)  SPECIAL ASSISTANT TO THE ATTORNEY
GENERAL CHARLES C. PEARCE AND SPECIAL ASSISTANT CHARLES S. BURDELL
CONTINUED THE PRESENTATION OF THE PEACH INDUSTRY FOR VIOLATION OF THE
SHERMAN ANTI-TRUST ACT.  THERE BEING NO FURTHER BUSINESS THE MEETING
ADJOURNED." 

THEN BELOW THE FOLLOWING APPEARS: 

"THE FOLLOWING INDUSTRIES WERE ALSO NAMED BY WITNESSES AND
INVESTIGATION BEGUN.  PLYWOOD; WINES AND GRAPE INDUSTRY; WHOLESALE AND
RETAIL GROCERIES; CANNED AND EVAPORATED MILK; CANNED FRUIT AND
VEGETABLES; SARDINE INDUSTRY; ALL FOOD INDUSTRIES WERE SUGGESTED FOR
INVESTIGATION, AND INVESTIGATION OF SUGAR BEET INDUSTRY WAS BEGUN. 
OTHER INDUSTRIES NAMED AS SUBJECT TO INVESTIGATION ARE SALMON INDUSTRY,
CANNED PINEAPPLE, WALNUTS AND ALMONDS, TOMATOES, DRIED FRUITS, AND A
CERTAIN LABOR UNION WITH HEADQUARTERS OR LOCATED IN OAKLAND, ASPARAGUS
AND CHERRIES." 

FN3  IN THE COURT BELOW, PETITIONERS URGED THAT THE DECISION OF THE
DISTRICT COURT IN STRIKING THE PLEAS IN ABATEMENT COULD NOT HAVE BEEN
REVIEWED BY THE CIRCUIT COURT OF APPEALS AFTER FINAL JUDGMENT BY REASON
OF R.S. SEC. 1011, WHICH HAS BEEN CARRIED OVER IN SUBSTANCE INTO 28
U.S.C. SEC. 879.  R.S. SEC. 1011 PROVIDES: 

"THERE SHALL BE NO REVERSAL IN THE SUPREME COURT OR IN A CIRCUIT
COURT UPON A WRIT OF ERROR, FOR ERROR IN RULING ANY PLEA IN ABATEMENT,
OTHER THAN A PLEA TO THE JURISDICTION OF THE COURT, OR FOR ANY ERROR IN
FACT." 

THIS PROVISION WAS TAKEN FROM SEC. 22 OF THE JUDICIARY ACT OF 1789, 1
STAT. 73, 84, A SECTION WHICH WAS IN TERMS APPLICABLE ONLY TO CIVIL
CASES.  NEITHER THE JUDICIARY ACT OF 1789 NOR THE REVISED STATUTES MADE
ANY PROVISION FOR REVIEW OF FEDERAL CRIMINAL CASES ON WRIT OF ERROR,
ALTHOUGH R.S. SECS. 651 AND 697 PROVIDED FOR CERTIFICATION TO THE
SUPREME COURT OF QUESTIONS ARISING IN CRIMINAL CASES.  REVIEW ON WRIT
OF ERROR OF CRIMINAL CASES IN THE FEDERAL COURTS WAS FIRST ESTABLISHED
BY THE ACT OF MAR. 3, 1879, 20 STAT. 354, AUTHORIZING REVIEW OF
DISTRICT COURT DECISIONS BY CIRCUIT COURTS.  BY SEC. 6 OF THE ACT OF
FEBRUARY 6, 1889, 25 STAT. 655, 656, THE SUPREME COURT WAS GIVEN
APPELLATE REVIEW OF CAPITAL CASES ON WRIT OF ERROR, AND SECS. 5 AND 6
OF THE JUDICIARY ACT OF 1891, 26 STAT. 826, 827-8, ABOLISHED THE
APPELLATE POWERS OF THE CIRCUIT COURTS, ENLARGED THE APPELLATE CRIMINAL
JURISDICTION OF THE SUPREME COURT, AND AUTHORIZED REVIEW OF CRIMINAL
CASES TRIED IN THE CIRCUIT AND DISTRICT COURTS, BY THE CIRCUIT COURTS
OF APPEALS ON WRIT OF ERROR. 

NONE OF THESE ACTS CONTAINS ANY PROVISION MAKING APPLICABLE TO
CRIMINAL CASES REVIEWED ON WRIT OF ERROR THE LIMITATIONS WHICH SEC. 22
OF THE JUDICIARY ACT OF 1789 IMPOSED ON SUCH REVIEW OF CIVIL CASES. 
ALTHOUGH R.S. SEC. 1011 IS PHRASED IN TERMS OF GENERAL APPLICABILITY,
IT WAS HELD IN BUCK STOVE CO. V. VICKERS, 226 U.S. 205, 213, THAT THE
REARRANGEMENT AND REWORDING IN THE REVISED STATUTES OF SEC. 22 OF THE
JUDICIARY ACT OF 1789 WAS NOT INTENDED TO CHANGE THE MEANING OF THAT
COURTS, R.S. SEC. 1011 DID NOT PREVENT CONSIDERATION OF A RULING ON A
PLEA IN ABATEMENT IN A CASE ON WRIT OF ERROR FROM A STATE COURT.  WE
THINK THAT SIMILAR REASONING APPLIES HERE TO PRECLUDE THE SECTION'S
APPLICATION TO CRIMINAL CASES, TO WHICH IN ITS ORIGINAL FORM IT DID NOT
APPLY. 

IN A LARGE NUMBER OF CRIMINAL CASES, THIS COURT AND THE CIRCUIT
COURTS OF APPEALS HAVE REVIEWED ON THE MERITS DECISIONS OVERRULING OR
REFUSING TO ENTERTAIN PLEAS IN ABATEMENT, ALTHOUGH WITHOUT REFERENCE TO
R.S SEC. 1011.  AGNEW V. UNITED STATES, 165 U.S. 36, 43-5; BRAM V.
UNITED STATES, 168 U.S. 532, 566-8; CROWLEY V. UNITED STATES, 194 U.S.
461, 468-74; HOLT V. UNITED STATES, 218 U.S. 245, 247-8; HYDE V. UNITED
STATES, 225 U.S. 347, 372-4; E.G. DUNN V. UNITED STATES, 238 F. 508;
BREESE V. UNITED STATES, 143 F. 250, 252-3; MULLONEY V. UNITED STATES,
79 F.2D 566, 572-80; HILLMAN V. UNITED STATES, 192 F. 264, 269-70;
LOWDON V. UNITED STATES, 149 F. 673.  A FEW CIRCUIT COURTS OF APPEALS
HAVE SAID THAT THE SECTION PREVENTED APPELLATE CONSIDERATION OF A
DECISION OVERRULING A PLEA IN ABATEMENT TO AN INDICTMENT, ALTHOUGH ALSO
HOLDING THAT THE PLEAS WERE PROPERLY OVERRULED.  MOUNDAY V. UNITED
STATES, 225 F. 965, 967(C.C.A. 8); LUXENBERG V. UNITED STATES, 45 F.2D
497, 498(C.C.A. 4); BIEMER V. UNITED STATES, 54 F.2D 1045(C.C.A. 7);
UNITED STATES V. MOLASKY, 118 F.2D 128, 133(C.C.A. 7).  AND THE SECTION
HAS ON OCCASION BEEN CITED AS PRECLUDING APPELLATE REVIEW OF THE WEIGHT
AND SUFFICIENCY OF THE EVIDENCE IN CRIMINAL CASES - A PROPOSITION WHICH
HARDLY NEEDS ITS SUPPORT.  MILES V. UNITED STATES, 103 U.S. 304, 313;
E.G. JARAMILLO V. UNITED STATES, 76 F.2D 700; ROSENBERG V. UNITED
STATES, 15 F.2D 179, 181; JEZEWSKI V. UNITED STATES, 13 F.2D 599, 602;
STOECKO V. UNITED STATES, 1 F.2D 612, 613; KINSER V. UNITED STATES, 231
F. 856, 861.  THE FACT THAT THE GREAT MAJORITY OF APPELLATE DECISIONS,
INCLUDING ALL IN THIS COURT, HAVE CONSIDERED PLEAS IN ABATEMENT ON THE
MERITS, ESTABLISHES A PRACTICE, BEGINNING SOON AFTER THE FIRST
AUTHORIZATION OF CRIMINAL APPELLATE REVIEW, WHICH IS PERSUASIVE OF THE
STATUTORY INTENT. 

OUR CONCLUSION THAT R.S. SEC. 1011 IS INAPPLICABLE TO CRIMINAL CASES
IS REINFORCED BY A CONSIDERATION OF THE KINDS OF OBJECTIONS WHICH IN A
CRIMINAL CASE MAY PROPERLY BE THE SUBJECTS OF A PLEA IN ABATEMENT. 
ALTHOUGH FREQUENTLY DESCRIBED AS A DILATORY PLEA WHICH SHOULD BE
STRICTLY CONSTRUED, UNITED STATES V. GREENE, 113 F. 683, 688-9, SUCH A
PLEA IS AN APPROPRIATE MEANS OF RAISING OBJECTIONS TO AN INDICTMENT
WHICH MAY INVOLVE SERIOUS AND PREJUDICIAL INFRINGEMENTS OF PROCEDURAL
RIGHTS, SUCH AS AN OBJECTION TO THE QUALIFICATIONS OF GRAND JURORS,
CROWLEY V. UNITED STATES, SUPRA (COMPARE THE ACT OF APRIL 30, 1934, 48
STAT. 648, 649, 18 U.S.C. 554A); TO THE METHOD OF SELECTION OF THE
GRAND JURY, AGNEW V. UNITED STATES, SUPRA (CF. GLASSER V. UNITED
STATES, 315 U.S. 60, 85); OR TO ITS COMPOSITION, SEE CARTER V. TEXAS,
177 U.S. 442, 447. 

FN4  BY THE ACT OF MAY 9, 1942, PUB. L. NO. 543, 77TH CONG., 2D
SESS., THE GOVERNMENT IS GIVEN A RIGHT OF APPEAL FROM A DECISION OR
JUDGMENT SUSTAINING A PLEA IN ABATEMENT TO AN INDICTMENT OR INFORMATION
OR ANY COUNT THEREOF. 

FN5  MANDAMUS HAS FREQUENTLY BEEN USED TO COMPEL THE REMAND TO A
STATE COURT OF A CRIMINAL CASE IMPROPERLY REMOVED UNDER SECS. 31-33 OF
THE JUDICIAL CODE, 28 U.S.C. SECS. 74-6.  MARYLAND V. SOPER (NO. 1),
270 U.S. 9, AND CASES CITED; COLORADO V. SYMES, 286 U.S. 510.  BUT
REMOVAL OF SUCH CASES INVOLVES AN EXTRAORDINARY INTERFERENCE WITH A
STATE'S ADMINISTRATION OF CRIMINAL JUSTICE SUCH AS TO JUSTIFY AN
EXCEPTIONAL USE OF THE WRIT.  MOREOVER, IN THOSE CASES THERE WAS NO
PROVISION FOR APPEAL BY THE STATE FROM AN ACQUITTAL, MARYLAND V. SOPER,
SUPRA, 30; CF. UNITED STATES V. SANGES, 144 U.S. 310.  AND SEE KEPNER
V. UNITED STATES, 195 U.S. 100, WITH WHICH COMPARE PALKO V.
CONNECTICUT, 302 U.S. 319, 322-3. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





BOWLES V. UNITED STATES, 319 U.S. 33 


NO. 589.  ARGUED APRIL 14, 1943.  - DECIDED MAY 3, 1943.  - 131 F.2D
818, AFFIRMED. 


1.  THE COURT TAKES JUDICIAL NOTICE OF A DECISION OF THE DIRECTOR OF
SELECTIVE SERVICE RENDERED ON AN APPEAL PURSUANT TO THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940.  P. 35. 

2.  UPON REVIEW HERE OF A CONVICTION UNDER SEC. 11 OF THE SELECTIVE
TRAINING AND SERVICE ACT OF 1940 FOR FAILURE OF THE DEFENDANT TO
RESPOND TO AN ORDER OF HIS DRAFT BOARD TO REPORT FOR INDUCTION INTO THE
ARMY, IT APPEARS THAT THE INDUCTION ORDER RESTS NOT ON THE ALLEGED
ERRONEOUS INTERPRETATION OF THE ACT WHICH THE DEFENDANT URGED AS A
DEFENSE TO THE CRIMINAL PROCEEDING, BUT ON THE SELECTIVE SERVICE
DIRECTOR'S CONTROLLING DETERMINATION OF FACT, ADVERSE TO THE
DEFENDANT'S CLAIM OF CONSCIENTIOUS OBJECTION TO MILITARY SERVICE; AND
THE JUDGMENT IS AFFIRMED.  P. 35. 

3.  THE TRIAL COURT'S DENIAL TO THE DEFENDANT OF ACCESS TO HIS
SELECTIVE SERVICE FILE, REVIEW OF WHICH RULING WAS NOT HERE SOUGHT,
WAS, AT MOST, HARMLESS ERROR.  P. 36. 

BOWLES V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 318 U.S. 749, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR VIOLATION OF THE SELECTIVE TRAINING AND SERVICE ACT. 

PER CURIAM. 

PETITIONER HAS BEEN CONVICTED IN THE DISTRICT COURT OF VIOLATING SEC.
11 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, IN
THAT HE FAILED TO RESPOND TO AN ORDER OF HIS DRAFT BOARD TO REPORT FOR
INDUCTION INTO THE ARMY.  ON THE TRIAL, HE SET UP AS A DEFENSE THAT HE
WAS ENTITLED TO EXEMPTION FROM THE DRAFT AS A CONSCIENTIOUS OBJECTOR
UNDER THE PROVISIONS OF SEC. 5(G) OF THE ACT; THAT HE HAD CLAIMED HIS
EXEMPTION BEFORE THE LOCAL DRAFT BOARD WHICH REJECTED IT; THAT, ON HIS
APPEAL TO THE APPROPRIATE APPEAL BOARD, THE DEPARTMENT OF JUSTICE,
ACTING PURSUANT TO SEC. 5(G), HAD SUBMITTED TO THE BOARD ITS ADVISORY
RECOMMENDATION THAT PETITIONER'S OBJECTION TO MILITARY SERVICE BE
SUSTAINED, BUT THAT THE APPEAL BOARD, BY REASON OF AN ERRONEOUS
INTERPRETATION OF THE STATUTE, HAD REJECTED PETITIONER'S CLAIM OF
EXEMPTION. 

IN THE COURSE OF THE TRIAL, PETITIONER SOUGHT LEAVE TO INSPECT HIS
ENTIRE SELECTIVE SERVICE FILE, AS HE APPARENTLY IS AUTHORIZED TO DO BY
SEC. 605.32 OF THE SELECTIVE SERVICE REGULATIONS.  ON OBJECTION OF THE
GOVERNMENT, LEAVE WAS DENIED BY THE DISTRICT COURT.  PETITIONER HAS NOT
PRESENTED THIS QUESTION FOR REVIEW BY HIS PETITION FOR CERTIORARI.  THE
COURT ALSO EXCLUDED EVIDENCE PROFFERED BY PETITIONER TO SHOW THAT THE
APPEAL BOARD HAD REJECTED HIS APPEAL ON THE GROUND THAT, AS HE WAS NOT
A MEMBER OF A RECOGNIZED RELIGIOUS ORGANIZATION OPPOSED TO
PARTICIPATION IN WAR, HE WAS NOT ENTITLED TO EXEMPTION BY THE STATUTE,
WHICH GRANTS THE EXEMPTION ONLY TO A PERSON "WHO, BY REASON OF
RELIGIOUS TRAINING AND BELIEF, IS CONSCIENTIOUSLY OPPOSED TO
PARTICIPATION IN WAR IN ANY FORM."  IN PARTICULAR THE TRIAL COURT
EXCLUDED A LETTER TO PETITIONER BY THE CHAIRMAN OF THE APPEAL BOARD
WHICH EXPRESSED THE OPINION THAT THE STATUTORY EXEMPTION APPLIES ONLY
TO MEMBERS OF A "RELIGIOUS SECT OR CULT THAT HAS AS ONE OF ITS CANONS A
RESISTANCE TO PARTICIPATION IN ACTIVITY OF ARMED FORCES OR
PARTICIPATION IN WAR." 

ON APPEAL THE CIRCUIT COURT OF APPEALS AFFIRMED, 131 F.2D 818.  IT
THOUGHT THAT IF THE APPEAL BOARD REJECTED THE CLAIM OF EXEMPTION FOR
THE REASONS ASSERTED BY PETITIONER, THE BOARD ERRONEOUSLY INTERPRETED
THE STATUTE.  BUT THE COURT HELD THAT SUCH AN ERROR COULD NOT BE SET UP
AS A DEFENSE TO THE INDICTMENT CHARGING PETITIONER'S FAILURE TO COMPLY
WITH THE ORDER TO REPORT FOR INDUCTION.  THE COURT SUGGESTED THAT
PETITIONER'S APPROPRIATE REMEDY WAS BY PETITION FOR HABEAS CORPUS AFTER
THE ADMINISTRATIVE APPEAL PROCEDURE PROVIDED BY THE ACT HAD BEEN
CONCLUDED, AND AFTER HE HAD SUBMITTED TO INDUCTION.  WE GRANTED
CERTIORARI, 318 U.S. 749, BECAUSE OF THE PUBLIC IMPORTANCE OF THE
QUESTIONS OF LAW DECIDED BY THE CIRCUIT COURT OF APPEALS. 

BUT IT NOW APPEARS FROM THE PROCEEDINGS IN THIS COURT THAT THE
JUDGMENT SHOULD BE AFFIRMED WITHOUT DECISION OF THOSE QUESTIONS.  ON
THE ARGUMENT BEFORE US THE GOVERNMENT, WHICH IN THE DISTRICT COURT HAD
DENIED PETITIONER ACCESS TO HIS SELECTIVE SERVICE FILE, PRODUCED FROM
THE FILE, AND TENDERED FOR OUR CONSIDERATION (1) A COPY OF PETITIONER'S
APPEAL TO THE PRESIDENT FROM THE ACTION TAKEN BY THE APPEAL BOARD, (2)
A COPY OF THE DECISION ON THAT APPEAL RENDERED BY THE DIRECTOR OF
SELECTIVE SERVICE, BY AUTHORITY OF THE PRESIDENT AND PURSUANT TO SEC.
628.1 OF THE SELECTIVE SERVICE REGULATIONS, AND (3) A COPY OF THE
LETTER OF THE DRAFT BOARD NOTIFYING PETITIONER THAT UPON HIS APPEAL TO
THE PRESIDENT HIS CLASSIFICATION HAD BEEN AFFIRMED AND THAT HE WOULD
THEREFORE BE ORDERED TO REPORT FOR INDUCTION. 

THE DECISION OF THE DIRECTOR, OF WHICH WE TAKE JUDICIAL NOTICE, CAHA
V. UNITED STATES, 152 U.S. 211, 221-22; THORNTON V. UNITED STATES, 271
U.S. 414, 420; THE PAQUETE HABANA, 175 U.S. 677, 696, ANTEDATED THE
ORDER OF THE DRAFT BOARD DIRECTING PETITIONER TO REPORT FOR INDUCTION. 
THE CLAIM TO EXEMPTION WAS REJECTED BY THE DIRECTOR ON THE GROUND THAT
IN FACT PETITIONER WAS NOT CONSCIENTIOUSLY OPPOSED TO MILITARY SERVICE,
AND THAT HE WAS THEREFORE NOT ENTITLED TO THE BENEFIT OF THE EXEMPTION
PRESCRIBED BY THE ACT.  BEFORE THE LOCAL DRAFT BOARD ISSUED ITS ORDER
TO PETITIONER, THE APPEAL BOARD'S DETERMINATION WHICH HE ASSAILS HERE,
HAD BEEN SUPERSEDED BY THE ACTION TAKEN BY THE DIRECTOR ON THE FINAL
APPEAL TO THE PRESIDENT.  HENCE THE ORDER RESTS ON THE DIRECTOR'S
CONTROLLING DETERMINATION OF FACT, ADVERSE TO PETITIONER'S CLAIM OF
CONSCIENTIOUS OBJECTION TO MILITARY SERVICE, AND NOT ON THE ALLEGED
ERRONEOUS INTERPRETATION OF THE ACT WHICH PETITIONER URGES AS A DEFENSE
IN THE PRESENT CRIMINAL PROCEEDING. 

IT THUS APPEARS THAT THAT DEFENSE TO THE CRIMINAL CHARGE COULD NEVER
HAVE BEEN AVAILABLE TO PETITIONER IN THIS PROCEEDING; THAT AT MOST IT
WAS HARMLESS ERROR, WHICH PETITIONER HAS NOT SOUGHT TO REVIEW HERE, TO
DENY HIM ACCESS TO HIS SELECTIVE SERVICE FILE; AND THAT THE JUDGMENT
MUST BE AFFIRMED WITHOUT CONSIDERATION OF THE POINTS OF LAW ON WHICH
THE COURT BELOW RENDERED ITS DECISION AND WHICH WERE URGED AS GROUNDS
FOR CERTIORARI.  AFFIRMED. 

MR. JUSTICE JACKSON, DISSENTING: 

BOWLES WAS INDICTED FOR FAILING TO RESPOND TO AN ORDER FOR INDUCTION
INTO THE ARMY.  HE SOUGHT TO SHOW THAT THE ORDER OF INDUCTION WAS
INVALID BECAUSE HIS CLASSIFICATION HAD BEEN MADE UNDER A WRONG
INTERPRETATION OF THE LAW.  HE HAD A LETTER FROM THE BOARD OF APPEAL, A
PART OF WHICH SHOWED THAT AT ONE TIME AND IN ONE ASPECT THE BOARD
CLEARLY MISAPPREHENDED THE LAW APPLICABLE TO HIS CASE.  HE SOUGHT TO
INSPECT HIS SELECTIVE SERVICE FILE, AS HE HAD A RIGHT TO DO.  THIS FILE
WOULD SHOW WHEN AND HOW, IF EVER, HIS CASE WAS CONSIDERED UNDER A
PROPER UNDERSTANDING OF THE LAW.  THE PROSECUTOR REFUSED TO PRODUCE THE
FILE AND KEPT IT OUT OF EVIDENCE.  BOWLES WAS CONVICTED. 

BOWLES ASKS US TO REVIEW THE TRIAL COURT'S RULING THAT EVEN IF HE WAS
WRONGLY CLASSIFIED THROUGH MISTAKE OF LAW IT IS NO DEFENSE TO THE
INDICTMENT.  THE GOVERNMENT SUCCEEDS IN PERSUADING US TO REFUSE TO
ENTERTAIN THIS QUESTION, BY PRINTING IN ITS BRIEF A COPY OF A DECISION
BY GENERAL HERSHEY, ACTING FOR THE PRESIDENT, DENYING PETITIONER'S
APPEAL.  NO QUESTION HAS BEEN RAISED AS TO THE AUTHENTICITY OF THIS
COPY, AND I RAISE NONE.  BUT THE FACTS REMAIN THAT, FOR SOME REASON,
THE PROSECUTION DENIED BOWLES THE RIGHT TO INSPECT HIS SELECTIVE
SERVICE FILE AND KEPT IT OUT OF EVIDENCE.  WHAT THE FILE MAY REVEAL I
DO NOT KNOW.  I STRONGLY SUSPECT HE WILL BE NO BETTER OFF FOR SEEING
IT. YET THE PROSECUTING ATTORNEYS PRESUMABLY KNEW WHAT WAS IN THE FILE
AND THEY WITHHELD IT FROM HIM.  MY EXPERIENCE INDICATES THAT IT WOULD
BE MORE REASONABLE TO ASSUME THAT THEY ILLEGALLY SUPPRESSED THE FILE TO
HELP THEIR CASE THAN TO ASSUME SUCH BEHAVIOR WAS PURPOSELESS.  I SEE NO
REASON WHY THE STRONG INFERENCES THAT USUALLY ARISE FROM SUPPRESSION,
DESTRUCTION, OR FAILURE TO PRODUCE EVIDENCE IN CONTROL OF A LITIGATING
PARTY SHOULD NOT APPLY HERE.  I AM CONFIDENT THAT COUNSEL HANDLING THIS
CASE IN THIS COURT NOT ONLY WOULD NOT SUPPRESS, BUT WOULD DISCLOSE TO
US, ANY RELEVANT PART OF THIS FILE, WHETHER IT HELPED OR HURT THEIR
CASE.  BUT CONFIDENCE IN COUNSEL FOUNDED ON PERSONAL KNOWLEDGE IS NOT A
SAFE BASIS FOR ESTABLISHING A PRACTICE. 

BOWLES WAS FORCED TO TRY HIS CASE IN THE DARK, BEING REFUSED
INFORMATION TO WHICH HE WAS ENTITLED.  IT IS TRUE THAT HE DID NOT
ASSIGN THIS AS GROUNDS FOR CERTIORARI.  BUT IT IS NOT BOWLES WHO IS
HERE TRYING TO USE THE INFORMATION CONTAINED IN THE FILE.  THE CITIZEN,
OF NECESSITY, HAS FEW RIGHTS WHEN HE FACES THE WAR MACHINE.  ONE OF
THEM IS THE RIGHT TO KNOW WHAT HAPPENED TO HIM AND WHY, AS SHOWN BY HIS
SELECTIVE SERVICE FILE, EVEN IF HE IS NOT ABLE TO DO ANYTHING ABOUT
IT. 

THE ULTIMATE QUESTION RAISED BY BOWLES IS WHETHER ONE INDICTED FOR
FAILING TO SUBMIT TO AN INDUCTION ORDER MAY DEFEND BY SHOWING THAT THE
ORDER IS INVALID.  THE COURT CONSIDERS THE PARTS OF THE FILE NOW
TENDERED BY THE GOVERNMENT AND ACCEPTS THE GOVERNMENT'S SUGGESTION THAT
"THE RECORD DOES NOT PROPERLY PRESENT THE QUESTION WHETHER PETITIONER
WAS ENTITLED TO CONTEST THE VALIDITY OF HIS ORDER TO REPORT FOR
INDUCTION."  THE COURT DOES NOT CONSIDER WHETHER ONE MAY BE CONVICTED
FOR DISOBEYING AN INVALID ORDER; AND I DO NOT CARE TO EXPRESS A FINAL
OPINION ON THE SUBJECT, SINCE THE DISPOSITION OF THE MATTER BY THE
COURT PRECLUDES ITS DETERMINATION OF THE QUESTION.  BUT I WOULD NOT
READILY ASSUME THAT, WHATEVER MAY BE THE OTHER CONSEQUENCES OF REFUSAL
TO REPORT FOR INDUCTION, COURTS MUST CONVICT AND PUNISH ONE FOR
DISOBEDIENCE OF AN UNLAWFUL ORDER BY WHOMSOEVER MADE. 

IF WE ARE TO CONSIDER THE DECISION OF THE CASE BY GENERAL HERSHEY AND
ASSUME THAT THE FILE CONTAINS NOTHING ELSE HELPFUL TO THE DEFENDANT, I
AGREE WITH THE COURT'S CONCLUSION THAT BOWLES IS DEFENSELESS.  BUT
WHERE THE PROSECUTION HAS ILLEGALLY CLOSED TO THE DEFENDANT FILES TO
WHICH HE WAS ENTITLED, I DO NOT THINK WE SHOULD ALLOW IT TO SUPPLEMENT
THE RECORD HERE FOR THE PURPOSE OF PRECLUDING DECISION OF QUESTIONS
WHICH, EVEN IF DOUBTFUL, BOWLES SEEMS ENTITLED TO RAISE IF HE CAN
ESTABLISH THAT THE ORDER OF INDUCTION WAS ILLEGAL.  TO LET THE
GOVERNMENT FORECLOSE THE QUESTION BY PRODUCING RECORDS HERE WHICH IF
EVER RELEVANT SHOULD HAVE BEEN EXAMINED IN THE COURT BELOW SEEMS TO LET
THE PROSECUTION EAT ITS CAKE AND HAVE IT TOO. 

MR. JUSTICE REED JOINS IN THIS OPINION. 
..END :





















STEFFLER V. UNITED STATES, 319 U.S. 38 


NO. 14, ORIGINAL.  DECIDED MAY 3, 1943. 


A POOR PERSON ENTITLED TO PROSECUTE AN APPEAL FROM THE DISTRICT COURT
TO THE CIRCUIT COURT OF APPEALS IS AUTHORIZED BY THE IN FORMA PAUPERIS
STATUTE TO APPLY TO THE DISTRICT COURT FOR LEAVE TO APPEAL IN FORMA
PAUPERIS, AND IT IS THE DUTY OF THE DISTRICT COURT TO ENTERTAIN THE
APPLICATION.  P. 40. 

STEFFLER V. UNITED STATES. 

ON MOTION FOR LEAVE TO FILE AND PETITION FOR WRIT OF CERTIORARI UNDER

PER CURIAM. 

IN 1938 PETITIONER PLEADED GUILTY, IN THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF INDIANA, TO AN INDICTMENT CHARGING HIM WITH
ENTERING A STATE BANK INSURED WITH THE FEDERAL DEPOSIT INSURANCE
CORPORATION, WITH INTENT TO COMMIT LARCENY, 50 STAT. 749, AND WAS
SENTENCED TO FIFTEEN YEARS IMPRISONMENT.  IN 1942 HE MADE A MOTION IN
THAT COURT TO SET ASIDE THE JUDGMENT OF CONVICTION ON THE GROUNDS,
AMONG OTHERS, THAT THE INDICTMENT DID NOT STATE AN OFFENSE AGAINST THE
UNITED STATES AND THAT HE HAD BEEN DENIED THE ASSISTANCE OF COUNSEL AT
THE TRIAL.  THE DISTRICT COURT DENIED THE MOTION WITHOUT TAKING
TESTIMONY OR MAKING FINDINGS OF FACT, AND DENIED AN APPLICATION FOR
REHEARING.  PETITIONER LODGED WITH THE CLERK OF THE DISTRICT COURT A
PETITION FOR LEAVE TO APPEAL TO THE CIRCUIT COURT OF APPEALS IN FORMA
PAUPERIS.  THE CLERK RETURNED THIS TO HIM BY LETTER, STATING, "UNDER
THE LAW THE PETITION TO PROSECUTE AN APPEAL IN FORMA PAUPERIS SHOULD BE
SUBMITTED TO THE UNITED STATES CIRCUIT COURT OF APPEALS AND NOT THE
DISTRICT COURT.  THEREFORE YOUR MOTION FOR LEAVE TO APPEAL IN FORMA
PAUPERIS AND ORDER THEREON ARE RETURNED HEREWITH." 

PETITIONER THEN APPLIED TO THE CIRCUIT COURT OF APPEALS FOR THE
SEVENTH CIRCUIT FOR LEAVE TO APPEAL IN FORMA PAUPERIS, WHICH COURT
DENIED THE APPLICATION.  HE NOW SEEKS CERTIORARI IN THIS COURT UNDER
SEC. 262 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 377(SEE IN RE 620 CHURCH
STREET CORP., 299 U.S. 24, 26; HOLIDAY V. JOHNSTON, 313 U.S. 342, 348,
N. 2), UPON A PETITION WHICH SETS UP, AMONG OTHER ALLEGED ERRORS, THE
DENIAL BY THE DISTRICT COURT OF HIS MOTION TO SET ASIDE THE JUDGMENT OF
CONVICTION, AND ITS REFUSAL TO ENTERTAIN HIS APPLICATION FOR LEAVE TO
APPEAL IN FORMA PAUPERIS.  HE ALSO ASKS TO BE PERMITTED TO PROCEED IN
FORMA PAUPERIS IN THIS COURT. 

IT IS EVIDENT ON THE FACE OF THE PAPERS THAT PETITIONER HAS BEEN
UNABLE TO PROSECUTE AN APPEAL OR TO SECURE APPELLATE REVIEW BY REASON
OF THE REFUSAL OF THE DISTRICT COURT TO ENTERTAIN HIS APPLICATION TO
APPEAL IN FORMA PAUPERIS AND THE DENIAL OF A LIKE APPLICATION BY THE
CIRCUIT COURT OF APPEALS.  APPEAL FROM THE DISTRICT COURT'S ORDER
DENYING PETITIONER'S MOTION TO VACATE THE CONVICTION IS GOVERNED BY
SEC. 8(C) OF THE ACT OF FEBRUARY 13, 1925, 28 U.S.C. SEC. 230, WHICH
REQUIRES THAT PROPER APPLICATION BE MADE FOR ALLOWANCE OF AN APPEAL. 
WELLS V. UNITED STATES, 318 U.S. 257, 260, AND CASES CITED.  BUT
PETITIONER'S FILING OF A MOTION FOR LEAVE TO APPEAL WITH THE CLERK OF
THE DISTRICT COURT WAS A SUFFICIENT APPLICATION, IN VIEW OF THE FACT
THAT AN APPEAL MAY BE ALLOWED BY EITHER THE DISTRICT COURT OR THE
DISTRICT JUDGE.  EX PARTE RAILROAD CO., 95 U.S. 221, 227; ALASKA
PACKERS ASSN. V. PILLSBURY, 301 U.S. 174, 175-76.  THE DISTRICT COURT
DECLINED TO CONSIDER PETITIONER'S APPLICATION, APPARENTLY ON THE GROUND
THAT THE IN FORMA PAUPERIS STATUTE REQUIRED THAT HIS RIGHT TO APPEAL AS
A POOR PERSON BE DETERMINED BY THE CIRCUIT COURT OF APPEALS INSTEAD OF
BY THE DISTRICT COURT. 

THE ACT OF JUNE 25, 1910, 36 STAT. 866, AS AMENDED, 28 U.S.C. SEC.
832, GRANTING THE RIGHT TO PROCEED IN FORMA PAUPERIS, PROVIDES THAT
"ANY CITIZEN OF THE UNITED STATES ENTITLED TO COMMENCE ANY SUIT OR
ACTION, CIVIL OR CRIMINAL, IN ANY COURT OF THE UNITED STATES, MAY, UPON
THE ORDER OF THE COURT, COMMENCE AND PROSECUTE OR DEFEND TO CONCLUSION
ANY SUIT OR ACTION, OR AN APPEAL TO THE CIRCUIT COURT OF APPEALS  ...
, INCLUDING ALL APPELLATE PROCEEDINGS, UNLESS THE TRIAL COURT SHALL
CERTIFY IN WRITING THAT IN THE OPINION OF THE COURT SUCH APPEAL IS NOT
TAKEN IN GOOD FAITH, WITHOUT BEING REQUIRED TO PREPAY FEES OR COSTS
... "  IT IS PLAIN THAT UNDER THESE PROVISIONS PETITIONER, BEING A POOR
PERSON ENTITLED TO PROSECUTE AN APPEAL FROM THE TRIAL COURT TO THE
CIRCUIT COURT OF APPEALS, WAS AUTHORIZED TO APPLY TO THE DISTRICT COURT
FOR LEAVE TO APPEAL IN FORMA PAUPERIS AND THAT IT WAS THE DUTY OF THE
DISTRICT COURT TO ENTERTAIN HIS APPLICATION.  SEE WELLS V. UNITED
STATES, SUPRA.  THE STATUTE AUTHORIZES THE SUIT, INCLUDING THE APPEAL,
TO BE PROSECUTED IN FORMA PAUPERIS UPON ORDER OF THE COURT IN WHICH THE
PROCEEDING IS COMMENCED.  THE RIGHT TO APPEAL IN FORMA PAUPERIS FROM
THE DISTRICT COURT TO THE CIRCUIT COURT OF APPEALS IS NOT CONDITIONED
UPON THE CONSENT OF THE CIRCUIT COURT OF APPEALS, EVEN THOUGH IT BE
ASSUMED THAT THAT COURT COULD GRANT SUCH PERMISSION. 

IT FOLLOWS THAT PETITIONER'S APPLICATION FOR APPEAL IN FORMA PAUPERIS
SHOULD HAVE BEEN ENTERTAINED BY THE DISTRICT COURT AND THAT OPPORTUNITY
SHOULD NOW BE GIVEN TO THAT COURT TO ACT ON THE APPLICATION BEFORE THE
CONSIDERATION OF OTHER QUESTIONS WHICH THE PETITIONER SEEKS TO RAISE
HERE BY HIS APPLICATION FOR CERTIORARI.  WE ACCORDINGLY GRANT THE
MOTION TO PROCEED IN FORMA PAUPERIS IN THIS COURT.  WE ALSO GRANT THE
PETITION FOR CERTIORARI, AND REMAND THE CAUSE TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS IN CONFORMITY TO THIS OPINION.  SO ORDERED. 
..END :























ST. PIERRE V. UNITED STATES, 319 U.S. 41 


NO. 687.  ARGUED APRIL 15, 1943.  - DECIDED MAY 3, 1943.  - DISMISSED. 


1.  THE SENTENCE WHICH THIS COURT GRANTED CERTIORARI TO REVIEW HAVING
BEEN FULLY SERVED, AND PETITIONER NOT HAVING SHOWN THAT UNDER EITHER
STATE OR FEDERAL LAW FURTHER PENALTIES OR DISABILITIES CAN BE IMPOSED
ON HIM AS A RESULT OF THE JUDGMENT, THE CAUSE IS MOOT AND THE WRIT OF
CERTIORARI IS DISMISSED.  P. 42. 

2.  THE MORAL STIGMA OF A JUDGMENT WHICH NO LONGER AFFECTS LEGAL
RIGHTS DOES NOT PRESENT A CASE OR CONTROVERSY FOR APPELLATE REVIEW.  P.
43. 

ST. PIERRE V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 318 U.S. 751, TO REVIEW THE AFFIRMANCE (132 F.2D 837) OF
A SENTENCE TO IMPRISONMENT FOR CONTEMPT OF COURT. 

PER CURIAM. 

PETITIONER, WHO IT IS ALLEGED HAD IN HIS TESTIMONY BEFORE A FEDERAL
GRAND JURY CONFESSED TO THE COMMISSION OF THE CRIME OF EMBEZZLEMENT,
REFUSED TO DIVULGE THE NAME OF THE PERSON WHOSE MONEY HE HAD
EMBEZZLED.  FOR THE REFUSAL THE DISTRICT COURT SENTENCED HIM TO FIVE
MONTHS' IMPRISONMENT FOR CONTEMPT OF COURT, AND THE CIRCUIT COURT OF
APPEALS AFFIRMED THE JUDGMENT.  132 F.2D 837.  WE GRANTED CERTIORARI,
318 U.S. 751, ON A PETITION WHICH RAISED IMPORTANT QUESTIONS WITH
RESPECT TO PETITIONER'S CONSTITUTIONAL IMMUNITY FROM SELF
INCRIMINATION.  IN THE ORDER ALLOWING THE WRIT WE REQUESTED COUNSEL TO
DISCUSS THE QUESTION WHETHER THE CASE HAD BECOME MOOT. 

ON THE ARGUMENT IT WAS CONCEDED THAT PETITIONER HAD FULLY SERVED HIS
SENTENCE BEFORE CERTIORARI WAS GRANTED.  WE ARE OF OPINION THAT THE
CASE IS MOOT BECAUSE, AFTER PETITIONER'S SERVICE OF HIS SENTENCE AND
ITS EXPIRATION, THERE WAS NO LONGER A SUBJECT MATTER ON WHICH THE
JUDGMENT OF THIS COURT COULD OPERATE.  A FEDERAL COURT IS WITHOUT POWER
TO DECIDE MOOT QUESTIONS OR TO GIVE ADVISORY OPINIONS WHICH CANNOT
AFFECT THE RIGHTS OF THE LITIGANTS IN THE CASE BEFORE IT.  UNITED
STATES V. ALASKA S.S. CO., 253 U.S. 113, 115-16, AND CASES CITED;
UNITED STATES V. HAMBURG-AMERICAN CO., 239 U.S. 466, 475-77.  THE
SENTENCE CANNOT BE ENLARGED BY THIS COURT'S JUDGMENT, AND REVERSAL OF
THE JUDGMENT BELOW CANNOT OPERATE TO UNDO WHAT HAS BEEN DONE OR RESTORE
TO PETITIONER THE PENALTY OF THE TERM OF IMPRISONMENT WHICH HE HAS
SERVED.  NOR HAS PETITIONER SHOWN THAT UNDER EITHER STATE OR FEDERAL
LAW FURTHER PENALTIES OR DISABILITIES CAN BE IMPOSED ON HIM AS A RESULT
OF THE JUDGMENT WHICH HAS NOW BEEN SATISFIED.  IN THESE RESPECTS THE
CASE DIFFERS FROM THAT OF AN INJUNCTION WHOSE COMMAND CONTINUES TO
OPERATE IN FUTURO EVEN THOUGH OBEYED.  FEDERAL TRADE COMM'N V. GOODYEAR
CO., 304 U.S. 257, 260, AND CASES CITED. 

IT DOES NOT APPEAR THAT PETITIONER COULD NOT HAVE BROUGHT HIS CASE TO
THIS COURT FOR REVIEW BEFORE THE EXPIRATION OF HIS SENTENCE, AND
ALTHOUGH IT IS SAID HE APPLIED FOR BAIL TO THE DISTRICT COURT AND TO
THE CIRCUIT COURT OF APPEALS, HE DID NOT APPLY TO THIS COURT FOR A STAY
OR A SUPERSEDEAS.  THE GOVERNMENT ADMITS THAT PETITIONER WILL BE
REQUIRED TO TESTIFY AGAIN BEFORE THE GRAND JURY AND THAT IN THE EVENT
OF HIS REFUSAL IT WILL ASK THAT HE BE COMMITTED UNTIL HE ANSWERS.  IN
THAT CASE, THERE WILL BE AMPLE OPPORTUNITY TO REVIEW SUCH A JUDGMENT;
AND EVEN THOUGH HE BE SENTENCED TO A FIXED TERM, THE QUESTIONS WHICH HE
SEEKS TO RAISE HERE MAY BE PRESERVED BY HIS ADMISSION TO BAIL, OR BY
THE GRANT OF A STAY OR A SUPERSEDEAS, FOR WHICH HE MAY APPLY TO THIS
COURT IF NECESSARY.  IN ALL THESE RESPECTS THE CASE DIFFERS FROM
SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE COMMERCE COMMISSION, 219
U.S. 498, WHICH WE DO NOT REGARD AS CONTROLLING HERE. 

PETITIONER ALSO SUGGESTS THAT THE JUDGMENT MAY IMPAIR HIS CREDIBILITY
AS WITNESS IN ANY FUTURE LEGAL PROCEEDING.  BUT THE MORAL STIGMA OF A
JUDGMENT WHICH NO LONGER AFFECTS LEGAL RIGHTS DOES NOT PRESENT A CASE
OR CONTROVERSY FOR APPELLATE REVIEW.  SINCE THE CAUSE IS MOOT, THE WRIT
WILL BE DISMISSED. 
..END :






















SOUTHLAND CO. V. BAYLEY, 319 U.S. 44 


NO. 581.  SUBMITTED APRIL 5, 1943.  - DECIDED MAY 3, 1943.  - NO. 581,
131 F.2D 412, REVERSED.  - NO. 725, 132 F.2D 627, AFFIRMED. 


THE EXEMPTION FROM THE MAXIMUM HOUR PROVISIONS OF THE FAIR LABOR
STANDARDS ACT, BY SEC. 13(B)(1), OF ANY EMPLOYEE WITH RESPECT TO WHOM
THE INTERSTATE COMMERCE COMMISSION "HAS POWER" UNDER SEC. 204 OF THE
MOTOR CARRIER ACT OF 1935 TO ESTABLISH MAXIMUM HOURS OF SERVICE, BECAME
EFFECTIVE IMMEDIATELY AS TO THOSE EMPLOYEES OF PRIVATE CARRIERS OF
PROPERTY BY MOTOR VEHICLE WITH RESPECT TO WHOM SEC. 204(A)(3) GAVE THE
COMMISSION THE POWER TO ESTABLISH MAXIMUM HOURS OF SERVICE "IF NEED
THEREFOR IS FOUND," AND DID NOT BECOME EFFECTIVE ONLY FROM THE LATER
DATE WHEN THE COMMISSION EXERCISED THE POWER.  P. 47. 

SOUTHLAND GASOLINE CO. V. BAYLEY ET AL.* 

*TOGETHER WITH NO. 725, RICHARDSON V. JAMES GIBBONS CO., ON WRIT OF
CERTIORARI, 318 U.S. 750, TO THE CIRCUIT COURT OF APPEALS FOR THE
FOURTH CIRCUIT,  - ARGUED APRIL 5, 1943. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 317 U.S. 623 AND 318 U.S. 750, TO REVIEW, IN NO. 581, THE
REVERSAL, AND, IN NO. 725, THE AFFIRMANCE, OF JUDGMENTS DISMISSING THE
COMPLAINTS IN SUITS BROUGHT BY EMPLOYEES TO RECOVER SUMS ALLEGED TO BE
DUE THEM UNDER THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

BY WRITS OF CERTIORARI THESE TWO CASES WERE BROUGHT HERE TO RESOLVE
THE CONFLICT BETWEEN THEM OVER THE PROPER INTERPRETATION OF SEC.
13(B)(1) OF THE FAIR LABOR STANDARDS ACT OF 1938.  FN1 

NUMBER OF HOURS PER WEEK AN EMPLOYER MAY EMPLOY AN EMPLOYEE WHO IS
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE.  FN2
THE SCOPE OF THE EXEMPTION FROM THE MAXIMUM HOUR STANDARDS GRANTED BY
SEC. 13(B)(1) IN TURN DEPENDS UPON THE INTERPRETATION TO BE GIVEN SEC.
204(A) OF THE MOTOR CARRIER ACT.  THE PORTIONS OF THAT SECTION WHICH
ARE IMPORTANT HERE ARE SET OUT BELOW.  FN3 

THESE CASES TURN UPON THE INTERPRETATION TO BE GIVEN THE EXEMPTION,
BY SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT, OF EMPLOYEES "WITH
RESPECT TO WHOM THE INTERSTATE COMMERCE COMMISSION HAS POWER TO
ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT TO THE
PROVISIONS OF SECTION 204 OF THE MOTOR CARRIER ACT, 1935."  IN THE
SOUTHLAND CASE, THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT
CONSTRUED THIS TO EXEMPT EMPLOYEES OF PRIVATE CARRIERS OF PROPERTY FROM
THE REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT ONLY AFTER THE
INTERSTATE COMMERCE COMMISSION HAS FOUND NEED TO ESTABLISH MAXIMUM
HOURS FOR SUCH EMPLOYEES UNDER THE AUTHORITY OF SEC. 204(A)(3) OF THE
MOTOR CARRIER ACT.  BAYLEY V. SOUTHLAND GASOLINE CO., 131 F.2D 412. 
THE FOURTH CIRCUIT, IN THE GIBBONS COMPANY CASE, WAS OF THE OPINION
THAT "POWER" IN SEC. 13(B) MEANT THE EXISTENCE OF THE POWER AND NOT ITS
ACTUAL EXERCISE.  132 F.2D 627; CF. PLUNKETT V. ABRAHAM BROS. PACKING
CO., 129 F.2D 419, 421, C.C.A. 6. 

THE EMPLOYERS IN BOTH CASES ARE CONCEDEDLY PRIVATE CARRIERS OF
PROPERTY, ENGAGED IN INTERSTATE COMMERCE.  ALL EMPLOYEES ARE SUBJECT TO
REGULATION TO PROMOTE SAFETY OF OPERATION UNDER SEC. 204(A)(3).  IN
BOTH CASES THE EMPLOYEES SEEK RECOVERY SOLELY FOR THE FAILURE OF THEIR
EMPLOYERS TO PAY THEM THE TIME AND A HALF FOR OVERTIME AS REQUIRED BY
SEC. 7 OF THE FAIR LABOR STANDARDS ACT.  THERE IS NO CLAIM FOR UNPAID
OVERTIME COMPENSATION AFTER MAY 1, 1940, THE DATE THAT THE INTERSTATE
COMMERCE COMMISSION FIRST FOUND NEED TO ESTABLISH REASONABLE
REQUIREMENTS AS TO MAXIMUM HOURS TO PROMOTE SAFETY IN THE OPERATIONS OF
PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE UNDER SEC. 204(A)(3). 

THE PROBLEM OF STATUTORY CONSTRUCTION POSED BY THIS CONFLICT OF
CIRCUITS SHOULD NOT BE SOLVED SIMPLY BY A LITERAL READING OF THE
EXEMPTION SECTION OF THE FAIR LABOR STANDARDS ACT AND THE DELEGATION OF
POWER SECTION OF THE MOTOR CARRIER ACT.  BOTH SECTIONS ARE PARTS OF
IMPORTANT GENERAL STATUTES AND THEIR PARTICULAR LANGUAGE SHOULD BE
CONSTRUED IN THE LIGHT OF THE PURPOSES WHICH LED TO THE ENACTMENT OF
THE ENTIRE LEGISLATION.  UNITED STATES V. AMERICAN TRUCKING ASSNS., 310
U.S. 534, 542.  THE WORDS OF THE SECTIONS UNDER CONSIDERATION ARE,
HOWEVER, BASIC DATA FROM WHICH TO DRAW THE SECTIONS' MEANING.  SECTION
13(B)(1) EXEMPTS FROM THE MAXIMUM HOUR LIMITATION OF THE FAIR LABOR
STANDARDS ACT THOSE EMPLOYEES OVER WHOM THE INTERSTATE COMMERCE
COMMISSION "HAS POWER TO" PRESCRIBE MAXIMUM HOURS OF SERVICE.  SECTION
204(A)(3) CERTAINLY GIVES "POWER TO" THE COMMISSION TO ESTABLISH
MAXIMUM HOURS FOR THE EMPLOYEES HERE INVOLVED.  THERE IS A LIMITATION
ON THE AUTHORITY DELEGATED, URGED HERE BY THE EMPLOYEES AS A CONDITION
PRECEDENT TO THE EXISTENCE OF THE POWER.  THIS IS THAT THE COMMISSION
MAY ESTABLISH MAXIMUM HOURS ONLY "IF NEED THEREFOR IS FOUND."  SINCE
THE EMPLOYEES SEEK UNPAID OVERTIME COMPENSATION ONLY FOR THE PERIOD
PRIOR TO A FINDING OF NEED BY THE COMMISSION, THE EMPLOYEES ARGUE THAT
NO "POWER" EXISTED IN THE COMMISSION DURING THE TIME FOR WHICH
COMPENSATION IS CLAIMED.  WE CONCLUDE TO THE CONTRARY.  THE POWER TO
FIX MAXIMUM HOURS HAS EXISTED IN THE COMMISSION SINCE THE ENACTMENT OF
THE MOTOR CARRIER ACT IN 1935.  BEFORE THAT POWER COULD BE USED, IT WAS
NECESSARY TO MAKE A FINDING OF NEED.  SUCH A NECESSITY, HOWEVER, DID
NOT AFFECT THE EXISTENCE OF THE POWER.  LEGISLATION FREQUENTLY
DELEGATES POWER SUBJECT TO A FINDING OF NEED OR NECESSITY FOR ITS
EXERCISE.  FN4 

THE GENERAL PURPOSES OF THE FAIR LABOR STANDARDS ACT AND OF THE MOTOR
CARRIER ACT DO NOT POINT TO A DIFFERENT CONCLUSION.  WITH THE ADOPTION
OF THE MOTOR CARRIER ACT, THE NATIONAL GOVERNMENT UNDERTOOK THE
REGULATION OF INTERSTATE MOTOR TRANSPORTATION TO SECURE THE BENEFITS OF
AN EFFICIENT SYSTEM.  SAFETY THROUGH THE ESTABLISHMENT OF MAXIMUM HOURS
FOR DRIVERS WAS AN IMPORTANT CONSIDERATION.  MAURER V. HAMILTON, 309
U.S. 598, 604, 607.  WHEN CONGRESS LATER CAME TO DEAL WITH WAGES AND
HOURS, ITS PRIMARY CONCERN WAS THAT PERSONS SHOULD NOT BE PERMITTED TO
TAKE PART IN INTERSTATE COMMERCE WHILE OPERATING WITH SUBSTANDARD LABOR
CONDITIONS.  UNITED STATES V. DARBY, 312 U.S. 100, 115.  THE FAIR LABOR
STANDARDS ACT SOUGHT A REDUCTION IN HOURS TO SPREAD EMPLOYMENT AS WELL
AS TO MAINTAIN HEALTH.  OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572,
576, 577.  BY EXEMPTING THE DRIVERS OF MOTORS FROM THE MAXIMUM HOUR
LIMITATIONS OF THE FAIR LABOR STANDARDS ACT, CONGRESS EVIDENTLY RELIED
UPON THE MOTOR CARRIER PROVISIONS TO WORK OUT SATISFACTORY ADJUSTMENTS
FOR EMPLOYEES CHARGED WITH THE SAFETY OF OPERATIONS IN A BUSINESS
REQUIRING FLUCTUATING HOURS OF EMPLOYMENT, WITHOUT THE BURDEN OF
ADDITIONAL PAY FOR OVERTIME. 

NOT ONLY DOES THE LANGUAGE OF SEC. 13(B)(1) INDICATE THIS
CONGRESSIONAL PURPOSE BUT WHAT SLIGHT EVIDENCE THERE IS FROM THE
LEGISLATIVE HISTORY POINTS TO THE SAME CONCLUSION.  THE AMENDMENT WAS
ADOPTED TO FREE OPERATORS OF MOTOR VEHICLES FROM THE REGULATION BY TWO
AGENCIES OF THE HOURS OF DRIVERS.  NO COMMENT APPEARS AS TO THE
DESIRABILITY OF STATUTORY LIMITATION ON THEIR HOURS PRIOR TO THE
ESTABLISHMENT OF MAXIMUM HOURS BY THE COMMISSION.  81 CONG. REC. 7875;
82 CONG. REC. 1573 ET SEQ.  NO DISTINCTION WAS POINTED OUT BETWEEN
COMMON, CONTRACT, AND PRIVATE CARRIERS, ALTHOUGH THERE WAS A
DISTINCTION IN SEC. 204(A).  IT WOULD SEEM THAT IF THE POINT NOW URGED
HAD BEEN IN THE MIND OF CONGRESS IT WOULD HAVE ITSELF EXPRESSED THE
INTENTION TO LEAVE PRIVATE CARRIERS SUBJECT TO THE FAIR LABOR STANDARDS
ACT UNTIL THE COMMISSION TOOK ACTION.  FN5  EVEN UNDER THE ARGUMENT OF
THE EMPLOYEES, THOSE DRIVERS WHO WORK FOR COMMON OR CONTRACT CARRIERS
WOULD NOT AT ANY TIME BE SUBJECT TO THE MAXIMUM HOUR PROVISION OF THE
LABOR ACT.  FURTHERMORE, IT WAS SAID ON THE SENATE FLOOR THAT THE
AMENDMENT AS TO MOTOR VEHICLE OPERATORS WAS TO GIVE THEM THE EXEMPTION
FROM THE FAIR LABOR STANDARDS ACT ENJOYED BY THE RAILWAY EMPLOYERS
UNDER THE HOURS OF SERVICE ACTS.  FN6 THESE DO NOT PROVIDE FOR OVERTIME
PAY AND LIKE THE SUBSECTIONS OF SEC. 204 OF THE MOTOR CARRIER ACT ARE
IMMEDIATELY EFFECTIVE TO EXEMPT THE RAILROAD EMPLOYEES COVERED BY THEIR
PROVISIONS FROM THE MAXIMUM HOUR PROVISIONS OF THE FAIR LABOR STANDARDS
ACT.  CF. NOTE 1.  SINCE THE EMPLOYEES OF CONTRACT AND COMMON MOTOR
CARRIERS, AS WELL AS RAILWAY EMPLOYEES, ARE EXEMPT FROM THE FAIR LABOR
STANDARDS PROVISIONS FOR MAXIMUM HOURS BY VIRTUE OF THE SAME WORDS
WHICH GOVERN PRIVATE MOTOR CARRIERS' EMPLOYEES, IT WOULD REQUIRE
DEFINITE EVIDENCE OF A CONTRARY CONGRESSIONAL PURPOSE TOWARD PRIVATE
CARRIER EMPLOYEES TO LEAD US TO ACCEPT THE ARGUMENT ADVANCED HERE BY
THE EMPLOYEES.  NO SUCH EVIDENCE APPEARS.  FN7  NO. 581, REVERSED.  NO.
725, AFFIRMED. 

FN1  52 STAT. 1060, 1068, SEC. 13(B): 

"THE PROVISIONS OF SECTION 7 SHALL NOT APPLY WITH RESPECT TO (1) ANY
EMPLOYEE WITH RESPECT TO WHOM THE INTERSTATE COMMERCE COMMISSION HAS
POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT
TO THE PROVISIONS OF SECTION 204 OF THE MOTOR CARRIER ACT, 1935; OR (2)
ANY EMPLOYEE OF AN EMPLOYER SUBJECT TO THE PROVISIONS OF PART I OF THE
INTERSTATE COMMERCE ACT." 

FN2  THE PERTINENT PROVISIONS OF SEC. 7 ARE AS FOLLOWS: 

"NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION,
EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE - 

"(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION, 

"(2)  FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND
YEAR FROM SUCH DATE, OR 

"(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, 

UNLESS SUCH EMPLOYEE RECEIVES COMPENSATION FOR HIS EMPLOYMENT IN
EXCESS OF THE HOURS ABOVE SPECIFIED AT A RATE NOT LESS THAN ONE AND ONE
HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED."  52 STAT. 1063. 

FN3  49 STAT. 543, 49 U.S.C. SEC. 301: 

"SEC. 204.  (A)  IT SHALL BE THE DUTY OF THE COMMISSION - 

"(1)  TO REGULATE COMMON CARRIERS BY MOTOR VEHICLE AS PROVIDED IN
THIS PART, AND TO THAT END THE COMMISSION MAY ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO CONTINUOUS AND ADEQUATE SERVICE,
TRANSPORTATION OF BAGGAGE AND EXPRESS, UNIFORM SYSTEMS OF ACCOUNTS,
RECORDS, AND REPORTS, PRESERVATION OF RECORDS, QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND
EQUIPMENT. 

"(2)  TO REGULATE CONTRACT CARRIERS BY MOTOR VEHICLE AS PROVIDED IN
THIS PART, AND TO THAT END THE COMMISSION MAY ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO UNIFORM SYSTEMS OF ACCOUNTS, RECORDS, AND
REPORTS, PRESERVATION OF RECORDS, QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND EQUIPMENT. 

"(3)  TO ESTABLISH FOR PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE,
IF NEED THEREFOR IS FOUND, REASONABLE REQUIREMENTS TO PROMOTE SAFETY OF
OPERATION, AND TO THAT END PRESCRIBE QUALIFICATIONS AND MAXIMUM HOURS
OF SERVICE OF EMPLOYEES, AND STANDARDS OF EQUIPMENT.  ...  " 

FN4  CF. FEDERAL FOOD, DRUG AND COSMETIC ACT, SEC. 401, 52 STAT.
1046, 21 U.S.C. 341; EMERGENCY PRICE CONTROL ACT OF 1942, SEC. 2, 56
STAT. 24; FAIR LABOR STANDARDS ACT, SEC. 8D, 52 STAT. 1064, 29 U.S.C.
208; PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, SEC. 11, 49 STAT. 820,
15 U.S.C. 79(K); TARIFF ACT OF 1930, SEC. 350(A), 48 STAT. 943, 19
U.S.C. 1351; ALIEN ENEMY ACT, R.S. 4067, 50 U.S.C. SEC. 21. 

FN5  AN UNDERSTANDING THAT THE INTERSTATE COMMERCE COMMISSION HAD
ALREADY ACTED UPON MAXIMUM HOURS FOR DRIVERS MAY HAVE SHORTENED THE
DISCUSSION OF THE AMENDMENT.  81 CONG. REC. 7875.  SUBSEQUENT TO THIS
DISCUSSION AND PRIOR TO THE PASSAGE OF THE LABOR ACT, THE COMMISSION
HAD ACTED FOR COMMON AND CONTRACT CARRIERS.  EX PARTE MC-2, 3 M.C.C.
665, 690.  PRIVATE CARRIERS WERE HELD TO NEED REGULATION BY THE
DECISION OF MAY 1, 1940, EX PARTE MC-3, 23 M.C.C. 1. 

FN6  81 CONG. REC. 7875; 34 STAT. 1415, 39 STAT. 721. 

FN7  DISTRICT COURTS WHICH HAVE INTERPRETED SEC. 13(B)(1) HAVE
REACHED THE SAME CONCLUSION AS WE DO.  FAULKNER V. LITTLE ROCK
FURNITURE MFG. CO., 32 F.SUPP.  590; BECHTEL V. STILLWATER MILLING CO.,
33 F.SUPP.  1010; FITZGERALD V. KROGER GROCERY & BAKING CO., 45
F.SUPP.  812; GIBSON V. WILSON & CO., 2 FEDERAL CARRIERS CASES P 9604;
DERER V. SNOW ICE, INC., 3 FEDERAL CARRIERS CASES P 80,029.  THE WAGE
AND HOUR DIVISION OF THE DEPARTMENT OF LABOR HAS TAKEN THE POSITION
THAT THE FAIR LABOR STANDARDS ACT APPLIES TO DRIVERS OF PRIVATE
CARRIERS UNTIL MAY 1, 1940, THE DATE THE INTERSTATE COMMERCE COMMISSION
DETERMINED THAT NEED EXISTED FOR THEIR REGULATION.  INTERPRETATIVE
BULL.  NO. 9, 5 WAGE & HOUR REP. 233, 235, MARCH 30, 1942. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















LABOR BOARD V. SOUTHERN BELL CO., 319 U.S. 50 


NO. 460.  ARGUED MARCH 5, 8, 1943.  - DECIDED MAY 3, 1943.  - 129 F.2D
410, REVERSED. 


THE CONCLUSION OF THE NATIONAL LABOR RELATIONS BOARD IN THIS CASE,
THAT AN ASSOCIATION OF EMPLOYEES WHICH PRIOR TO THE PASSAGE OF THE
NATIONAL LABOR RELATIONS ACT IN 1935 WAS A COMPANY-DOMINATED AND
SUPPORTED UNION HAD NOT CEASED TO BE SUCH, NOTWITHSTANDING THE
REORGANIZATION OF THE ASSOCIATION AND EFFORTS TO DISSIPATE THE EFFECT
OF SUCH EARLY DOMINATION, WAS SUPPORTED BY SUBSTANTIAL EVIDENCE; AND
THE ORDER DIRECTING THE COMPANY TO DISESTABLISH COMPLETELY THE
ASSOCIATION AS BARGAINING REPRESENTATIVE, AND TO CEASE AND DESIST FROM
GIVING EFFECT TO THE CONTRACTUAL ARRANGEMENTS RESULTING FROM THE
ASSOCIATION'S FORMER REPRESENTATION OF THE EMPLOYEES, WAS WITHIN THE
AUTHORITY OF THE BOARD.  P. 60. 

NATIONAL LABOR RELATIONS BOARD V. SOUTHERN BELL TELEPHONE & TELEGRAPH
CO.* 

*TOGETHER WITH NO. 461, NATIONAL LABOR RELATIONS BOARD V. SOUTHERN
ASSOCIATION OF BELL TELEPHONE EMPLOYEES, ALSO ON WRIT OF CERTIORARI,
317 U.S. 618, TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 317 U.S. 618, TO REVIEW JUDGMENTS SETTING ASIDE AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD, 35 N.L.R.B. 621, AND DENYING THE
BOARD'S PETITION FOR ENFORCEMENT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

ON THIS CERTIORARI THE QUESTION IS WHETHER THE ORDER OF THE BOARD
HEREIN IS SUPPORTED BY SUBSTANTIAL EVIDENCE.  UPON CHARGES FILED BY THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A.F. OF L., THE BOARD
ISSUED A COMPLAINT ON FEBRUARY 17, 1941, AGAINST RESPONDENT SOUTHERN
BELL TELEPHONE AND TELEGRAPH COMPANY, CHARGING INTER ALIA THAT
RESPONDENT COMPANY WAS DOMINATING AND SUPPORTING RESPONDENT SOUTHERN
ASSOCIATION OF BELL TELEPHONE EMPLOYEES, HEREAFTER REFERRED TO AS THE
ASSOCIATION, AS A LABOR ORGANIZATION OF ITS EMPLOYEES IN VIOLATION OF
SEC. 8(2) OF THE ACT, AND THAT IN OTHER WAYS RESPONDENT COMPANY HAD
INTERFERED WITH THE RIGHTS OF ITS EMPLOYEES IN THE EXERCISE OF RIGHTS
GUARANTEED THEM BY SEC. 7 IN VIOLATION OF SEC. 8(1) OF THE ACT.  FN1
AFTER HEARING, THE BOARD MADE FINDINGS AND CONCLUSIONS IN SUPPORT OF
THE STATED CHARGES AND ORDERED THAT RESPONDENT CEASE AND DESIST FROM
DOMINATING OR INTERFERING WITH THE ASSOCIATION, FROM CONTRIBUTING
FINANCIAL AND OTHER SUPPORT, RECOGNIZING IT AS THE COLLECTIVE
BARGAINING AGENCY OF ITS EMPLOYEES AND GIVING EFFECT TO OR ENTERING
INTO ANY COLLECTIVE BARGAINING CONTRACT WITH THE ASSOCIATION AND
FURTHER THAT IT CEASE AND DESIST FROM INTERFERING WITH ITS EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS, INCLUDING THE RIGHT TO ORGANIZE AND
BARGAIN COLLECTIVELY, AS GUARANTEED BY SEC. 7 OF THE ACT.  AFFIRMATIVE
ACTION ORDERED WAS THAT RESPONDENT WITHDRAW ALL RECOGNITION FROM THE
ASSOCIATION AND POST APPROPRIATE NOTICES TO ITS EMPLOYEES. 

SEPARATE PETITIONS WERE FILED IN THE COURT BELOW BY RESPONDENT AND
THE ASSOCIATION TO REVIEW THIS ORDER AND THE BOARD ANSWERED, REQUESTING
ENFORCEMENT.  THE COURT BELOW HELD THAT THE BOARD'S FINDINGS WERE
WITHOUT SUPPORT IN THE EVIDENCE AND THAT THE BOARD'S ORDER REQUIRING
THE RESPONDENT TO WITHDRAW RECOGNITION FROM AND TO DISESTABLISH THE
ASSOCIATION AS THE COLLECTIVE BARGAINING AGENCY OF ITS EMPLOYEES WAS AN
ABUSE OF DISCRETION AND CONTRARY TO THE POLICY OF THE ACT.  IT
ACCORDINGLY VACATED THE ORDER OF THE BOARD AND DENIED THE BOARD'S
PETITION FOR ENFORCEMENT.  WE TURN IMMEDIATELY TO THE FACTS OF THE CASE
AND THE BOARD'S FINDINGS. 

RESPONDENT DOES A GENERAL TELEPHONE BUSINESS IN NINE SOUTHEASTERN
STATES, FURNISHING LOCAL AND LONG DISTANCE COMMUNICATION FACILITIES,
BOTH INTERSTATE AND INTRASTATE.  IT HAS 23,000 EMPLOYEES AND 1,375,000
SUBSCRIBERS. 

THE ASSOCIATION WAS ORGANIZED IN 1919 BY RESPONDENT COMPANY TO
REPRESENT ITS EMPLOYEES AS A LABOR ORGANIZATION AND ADMITTEDLY UNTIL
JULY 5, 1935, THE DATE OF THE PASSAGE OF THE NATIONAL LABOR RELATIONS
ACT, RESPONDENT LIBERALLY CONTRIBUTED SUPPORT TO THE ASSOCIATION.  THE
FACTUAL CENTER OF CONTROVERSY HERE, RESOLVED BY THE BOARD AGAINST THE
RESPONDENT, IS WHETHER THIS DOMINATION AND INTERFERENCE CAME TO AN END
WITH THE REORGANIZATION OF THE ASSOCIATION IN THE SPRING AND SUMMER OF
1935 OR AT ANY LATER DATE BEFORE THE COMPLAINT.  ANOTHER ACT OF
DISASSOCIATION IS ALLEGED BY RESPONDENT TO HAVE TAKEN PLACE ON FEBRUARY
14, 1941. 

THERE IS TESTIMONY THAT IN APRIL AND MAY, 1935, JUST BEFORE THE
PASSAGE OF THE NATIONAL LABOR RELATIONS ACT, THE ASSOCIATION'S
PRESIDENT, ASKEW, IN ANTICIPATION OF THE PASSAGE OF THE ACT,
SUCCESSFULLY CANVASSED THE MEMBERSHIP FOR FIFTY CENT CONTRIBUTIONS SO
THAT THE ASSOCIATION WOULD HAVE ITS OWN FUNDS AND BE ABLE TO OPERATE
AFTER THE BILL BECAME A LAW.  THE COMPANY AIDED THE SOLICITATION WITH
ADVICE, AUTOMOBILE TRANSPORTATION AND EXPENSES FOR THE SOLICITORS. 
OVER FIVE THOUSAND DOLLARS WAS RAISED.  THREE ASSOCIATION OFFICIALS
ACTIVELY ENGAGED IN THE FUND RAISING.  ASKEW, THE PRESIDENT, WEIL, THE
VICE-PRESIDENT AND SOON TO BE PRESIDENT, AND WILKES, THE ACTING
TREASURER, WERE EMPLOYEES HAVING CLOSE TOUCH WITH THE COMPANY
MANAGEMENT.  ASKEW WAS A STATE CASHIER, WILKES WAS SECRETARY TO KEY
OFFICIALS AND WEIL, PLANT PRACTICE SUPERVISOR, A POSITION DESCRIBED BY
HIM AS COVERING THE DISTRIBUTION AND EXPLANATION TO THE PROPER
EMPLOYEES OF PRINTED ROUTINE JOB INSTRUCTIONS. 

ON JULY 16, 1935, IMMEDIATELY AFTER THE PASSAGE OF THE LABOR ACT,
WARREN, RESPONDENT'S VICE-PRESIDENT IN CHARGE OF OPERATIONS, CALLED A
MEETING OF HIS CHIEF SUPERVISORY EMPLOYEES, ATTENDED BY ASKEW AND
WILKES AS ASSOCIATION OFFICERS.  AT THIS MEETING THE WAGNER ACT WAS
DISCUSSED AND A "HANDS-OFF" POLICY ANNOUNCED BY THE COMPANY AS TO THE
ORGANIZATION OF ITS WORKERS.  THE SUPERVISORY EMPLOYEES WERE INSTRUCTED
TO AND DID TRANSMIT THESE VIEWS DOWN TO THE RANKS BY WORD OF MOUTH,
SUPERIOR SUPERVISORS SPEAKING TO THEIR INFERIORS.  NO MENTION WAS MADE
AT THIS MEETING OF THE DISESTABLISHMENT OR DISSOLUTION OF THE
ASSOCIATION.  A FEW DAYS LATER A MEMORANDUM ON THE "WAGNER BILL
INTERPRETATIONS" WAS ISSUED BY THE COMPANY AND CALLED TO ITS EMPLOYEES'
ATTENTION.  IT READ AS FOLLOWS: 

"THE COMPANY CAN CONTINUE TO PAY SALARIES OF ASSOCIATION OFFICERS WHO
ARE FILLING THEIR REGULAR JOBS AND DOING ASSOCIATION WORK INCIDENTAL TO
THEIR REGULAR DUTIES. 

"THE COMPANY CAN CONTINUE TO PAY THE SALARIES OF ASSOCIATION OFFICERS
WHILE ENGAGED IN CONFERRING WITH MANAGEMENT AND WHILE THEY ARE MEETING
AMONG THEMSELVES BEFORE OR AFTER THESE CONFERENCES TO DISCUSS THEIR
PRESENTATION OR DISPOSITION OF THE MATTERS INVOLVED.  SALARIES CANNOT
BE PAID WHEN ASSOCIATION OFFICERS ARE DEVOTING THEIR TIME SOLELY TO
INTERNAL AFFAIRS OF THE ASSOCIATION. 

"THE COMPANY CANNOT PAY TRAVELING EXPENSES.  HOWEVER, ALL MANAGEMENT
REPRESENTATIVES ARE ANXIOUS TO COOPERATE AND WILL ENDEAVOR TO MEET
ASSOCIATION OFFICERS AT SUCH TIMES AND PLACES AS WILL BE MOST
CONVENIENT AND ECONOMICAL. 

"THE ASSOCIATION MAY CONTINUE TO USE COMPANY PREMISES FOR THEIR
MEETINGS WITHOUT CHARGE.  SPACE FOR THE EXCLUSIVE FULL TIME USE OF THE
ASSOCIATION COULD NOT BE PROVIDED WITHOUT PROPER CHARGE. 

"ASSOCIATION LOCAL MEETINGS CANNOT BE HELD ON COMPANY TIME. 

"THE ASSOCIATION MAY USE COMPANY TYPEWRITERS AND OTHER OFFICE
FACILITIES WHEN SUCH IS INCIDENTAL TO THE REGULAR COMPANY USE OF THESE
FACILITIES.  OUT-OF-POCKET EXPENSES SUCH AS STAMPS, STATIONERY AND
SUPPLIES CANNOT BE BORNE BY THE COMPANY. 

"ASSOCIATION REPRESENTATIVES MAY MAKE LIMITED USE OF TOLL LINES UPON
THE SAME BASIS AS IS EFFECTIVE FOR EMPLOYEES GENERALLY. 

"THE EXPENSE OF PREPARATION AND DISTRIBUTION OF THE MINUTES OF JOINT
CONFERENCES WILL BE BORNE BY THE COMPANY." 

THIS MEMORANDUM WAS REVISED IN ACCORDANCE WITH THE COMPANY'S VIEWS OF
DEVELOPMENTS IN THE INTERPRETATION OF THE NATIONAL LABOR RELATIONS
ACT.  THE MOST SIGNIFICANT CHANGES OCCURRED IN THE REVISION OF APRIL
1937 WHEN THE PARAGRAPH AS TO SALARIES WAS CHANGED TO READ: 

"1.  THE COMPANY CAN PAY SALARIES OF ASSOCIATION OFFICERS WHILE
ENGAGED IN CONFERRING WITH MANAGEMENT.  THE COMPANY CANNOT PAY SALARIES
OF ASSOCIATION OFFICERS UNDER THE FOLLOWING CONDITIONS: 

"(A)  WHILE THEY ARE MEETING AMONG THEMSELVES BEFORE AND AFTER JOINT
CONFERENCES TO DISCUSS THEIR PRESENTATION OR DISPOSITION OF THE MATTERS
INVOLVED. 

"(B)  WHILE ASSOCIATION OFFICERS ARE DEVOTING THEIR TIME SOLELY TO
INTERNAL AFFAIRS OF THE ASSOCIATION." 

IN THAT ISSUE, IT WAS MADE CLEAR THAT THE ASSOCIATION MUST PAY FOR
SERVICES RENDERED BY THE COMPANY, SUCH AS SPACE, LONG DISTANCE CALLS
AND COLLECTION OF DUES.  THE MEMORANDUM CONCLUDED: 

"THE PROVISIONS OF THIS ACT MAKE IT ILLEGAL FOR AN EMPLOYER TO
DOMINATE OR INTERFERE WITH THE FORMATION OR ADMINISTRATION OF ANY LABOR
ORGANIZATION, AND THE MANAGEMENT OF THIS COMPANY SHOULD CONSCIENTIOUSLY
OBSERVE THESE PROVISIONS." 

NO DISESTABLISHMENT OF THE ASSOCIATION AS THE REPRESENTATIVE OF THE
EMPLOYEES IN THEIR NEGOTIATIONS WITH THE MANAGEMENT APPEARS FROM THIS
EVIDENCE AND THE BOARD FOUND NONE. 

RESPONDENTS URGE THAT THE HISTORICAL CONTINUITY BETWEEN THE COMPANY
ORGANIZED AND FINANCED EMPLOYEE ASSOCIATION OF 1919 TO 1936 AND THE
REORGANIZED ASSOCIATION OF 1936 TO DATE IS NOT CONTROLLING IN
DETERMINING WHETHER THE ASSOCIATION WAS DOMINATED BY THE COMPANY IN
1941.  THERE WAS CERTAINLY SUFFICIENT EVIDENCE OF CONTINUITY TO FORM A
BASIS FOR THE BOARD'S CONCLUSION THAT THE REORGANIZATION DID NOT SO
COMPLETELY DISPLACE THE ORIGINAL ASSOCIATION AS TO AMOUNT AT THAT TIME
TO THE CREATION OF A "FREE AND UNINSPIRED" EMPLOYEE AGENCY.  THE
REORGANIZATION WAS GUIDED BY THE PRINCIPAL OFFICERS OF THE EXISTING
ASSOCIATION.  THE VICE-PRESIDENT OF THE OLD BECAME THE PRESIDENT OF THE
NEW.  TWO OF THESE ACTIVE REORGANIZERS CONTINUED IN THE HIGHER OFFICES
OF THE ASSOCIATION THROUGH 1939.  A NEW AGREEMENT WITH THE COMPANY,
WHICH FOR THE FIRST TIME PROVIDED FOR A CHECK-OFF FOR ASSOCIATION DUES,
WAS NEGOTIATED BEFORE THE RATIFICATION OF THE CHANGES IN THE
ASSOCIATION CONSTITUTION, WHICH WERE MADE IN AN ATTEMPT TO CONFORM TO
THE NATIONAL LABOR RELATIONS ACT.  THE REORGANIZATION PROCEEDED BY
REVISION RATHER THAN BY ORIGINAL CREATION.  MEMBERS WERE INELIGIBLE FOR
ELECTION TO OFFICES IN LOCALS UNTIL A YEAR FROM THEIR ADMISSION AND TO
THE PRESIDENCY UNTIL FIVE YEARS.  IN ASKING FOR NEW APPLICATIONS FOR
MEMBERSHIP, IT WAS EXPLAINED BY THE ASSOCIATION THAT IT WOULD PROVIDE A
COMPLETE RECORD OF MEMBERSHIP "AND IT IS NOT TO BE CONSIDERED AS A NEW
APPLICATION FOR MEMBERSHIP."  UNTIL THE MARCH 1940 MEETING, THE
PREAMBLE OF THE REVISED CONSTITUTION REFERRED TO THE FORMATION OF THE
ASSOCIATION IN 1919.  AT THAT DATE, THE PREAMBLE WAS CHANGED SO THAT IT
RECITED THE DATE OF THE FORMATION TO BE AUGUST 30, 1935. 

THE REVISION OF THE CONSTITUTION WAS IMPORTANT FROM THE STANDPOINT OF
THE LABOR ACT.  THE COMPANY COULD NO LONGER PROPERLY PAY THE EXPENSES
OF THE ASSOCIATION.  CONSEQUENTLY THE MEMBERSHIP HAD TO PAY DUES TO
MEET THE EXPENSES.  THESE CHANGES WERE MADE. 

EVEN THOUGH THIS CONTINUITY OF THE EMPLOYEE ORGANIZATION AS A MATTER
OF LAW MAY NOT BE CONTROLLING AS TO THE CONTINUANCE OF DOMINANCE BY THE
COMPANY, IT IS AT LEAST EVIDENCE OF SUCH DOMINANCE, ENTITLED TO
CONSIDERATION BY THE BOARD.  THE EFFECTS OF LONG PRACTICE PERSIST. 
NOTWITHSTANDING FREEDOM FROM LABOR DIFFICULTIES, THE DISESTABLISHMENT
OF AN EMPLOYEE ORGANIZATION MAY BE NECESSARY TO GIVE UNTRAMMELLED
FREEDOM FOR THE CREATION OF A BARGAINING UNIT.  LABOR BOARD V.
GREYHOUND LINES, 303 U.S. 261, 271; LABOR BOARD V. NEWPORT NEWS CO.,
308 U.S. 241, 250; WESTINGHOUSE ELECTRIC & MFG. CO. V. LABOR BOARD, 112
F.2D 657, 660, AFFIRMED 312 U.S. 660. 

SO MUCH THE RESPONDENTS CONCEDE, OR AT LEAST ASSUME.  THEY AGREE THAT
A CLEAVAGE IS NECESSARY BUT THEY DENY THAT THE BOARD MAY DECIDE THAT
ALL THAT HAPPENED BETWEEN THE PASSAGE OF THE ACT IN 1935 AND THE
ISSUANCE OF THE COMPLAINT IN 1941 DOES NOT OVERCOME THE LAWFUL
DOMINATION PRIOR TO THE ENACTMENT OF THE ACT.  FORMAL DISESTABLISHMENT
IS NOT, THE COMPANY SAYS, THE ONLY ACT WHICH WILL COMPLY WITH THE LAW
AND THE EVIDENCE AFTER THE PASSAGE OF THE LABOR ACT SHOWS WITHOUT
CONTRADICTION, SO THE RESPONDENTS CONTEND, THAT THE COMPANY WAS NEUTRAL
AND THE ASSOCIATION THE CHOICE OF THE EMPLOYEES. 

THE BOARD CALLED ATTENTION TO MINOR FAVORS SHOWN THE ASSOCIATION
AFTER 1935 BY THE COMPANY.  THE USE OF A COMPANY BULLETIN BOARD TO POST
ASSOCIATION NOTICES, THE LIMITED USE OF EMPLOYER SPACE OR FACILITIES,
THE DEDUCTION OF DUES WITHOUT CHARGE, ALL WITHOUT DISCRIMINATION
BETWEEN EMPLOYEE ORGANIZATIONS AND PRIOR TO ADMINISTRATIVE AND JUDICIAL
CLARIFICATION OF THE LABOR ACT, MAY BE OF LITTLE IMPORTANCE BUT THEY
ARE A PART OF THE CIRCUMSTANCES FROM WHICH THE BOARD IS TO DRAW
CONCLUSIONS. 

THERE IS ALSO EVIDENCE THAT IN 1940 A LONG DISTANCE SUPERVISOR AT
SHREVEPORT, LOUISIANA, AT A SUPERIOR'S SUGGESTION, UNDERTOOK TO
INFLUENCE TWO SUBORDINATES TO FAVOR THE ASSOCIATION AGAINST THE EFFORTS
OF AN OUTSIDE UNION TO SECURE MEMBERS.  WHILE ONLY A SINGLE INCIDENT,
IT IS ENTITLED TO CONSIDERATION BY THE BOARD. 

THE RESPONDENTS' EVIDENCE SHOWS FURTHER THAT WHEN AN OUTSIDE UNION
SOUGHT MEMBERS AMONG THE COMPANY EMPLOYEES AND WHILE THE LABOR BOARD
WAS INVESTIGATING CHARGES OF ASSOCIATION DOMINANCE BY THE COMPANY, THE
ASSOCIATION WROTE THE COMPANY IN PART AS FOLLOWS: 

"BECAUSE SUCH A CHARGE CLOUDS THIS ASSOCIATION'S RIGHT TO REPRESENT
THE EMPLOYEES OF THE COMPANY AND THAT UNDER SUCH CIRCUMSTANCES THE BEST
INTERESTS OF THE EMPLOYEES MAY NOT ADEQUATELY BE SERVED, THE
ASSOCIATION WILL NOT UNDERTAKE TO ACT AS THEIR COLLECTIVE BARGAINING
AGENT PENDING A CANVASS OF ITS MEMBERSHIP BY SIGNED BALLOT." 

IMMEDIATELY THE COMPANY ON FEBRUARY 14, 1941, POSTED NOTICE TO ITS
EMPLOYEES WHICH QUOTED SECS. 7 AND 8 OF THE LABOR ACT AND THEN ADDED: 

"THE COMPANY RECOGNIZES ITS EMPLOYEES' RIGHT TO JOIN, FORM OR
AFFILIATE WITH ANY LABOR ORGANIZATION OF THEIR OWN CHOICE AND FREELY TO
EXERCISE ALL RIGHTS SECURED TO THEM BY THIS ACT.    "THE COMPANY
GUARANTEES ITS STRICT COMPLIANCE WITH ALL THE PROVISIONS OF THIS ACT
AND THAT NO EMPLOYEE WILL BE DISCRIMINATED AGAINST OR SUFFER ANY OTHER
PENALTY BECAUSE OF HIS OR HER EXERCISE OF ANY RIGHT SECURED BY THIS
ACT. 

"THE COMPANY IS NOT INTERESTED IN WHETHER ITS EMPLOYEES JOIN OR DO
NOT JOIN ANY LABOR ORGANIZATION."  THEREAFTER, BY MEANS OF A SIGNED
BALLOT POLL, A MAJORITY OF THE EMPLOYEES INDICATED THEIR DESIRE TO
CONTINUE THEIR MEMBERSHIP IN THE ASSOCIATION AND THEIR CHOICE OF THE
ASSOCIATION AS THEIR REPRESENTATIVE FOR COLLECTIVE BARGAINING.  PENDING
THE POLL, THE COMPANY CONTINUED IN EFFECT ITS 1940 AGREEMENT WITH THE
ASSOCIATION.  AFTER THE POLL AND SUBSEQUENT TO A CERTIFICATION TO IT OF
THE MANNER OF VOTING AND THE RESULT, THE COMPANY ON MARCH 6, 1941,
RECOGNIZED THE ASSOCIATION AS THE "AUTHORIZED COLLECTIVE BARGAINING
AGENT OF THE EMPLOYEES OF THIS COMPANY."  THE SAME AGREEMENT CONTINUED
TO GOVERN THE RELATIONS BETWEEN THE COMPANY AND THE ASSOCIATION UNTIL
THE PRESENT HEARING. 

THE RESPONDENTS' EVIDENCE SHOWS ALSO THAT IN THE YEARS 1936 TO 1940,
INCLUSIVE, THE ASSOCIATION REPRESENTED THE EMPLOYEES IN BARGAINING
CONFERENCES OVER WAGES, HOURS AND WORKING CONDITIONS.  OUT OF THESE
CONFERENCES CAME SUBSTANTIAL CONCESSIONS TO THE EMPLOYEES, ESTIMATED BY
WITNESSES AS WORTH MORE THAN THREE MILLION DOLLARS ANNUALLY TO THE
EMPLOYEES. 

FROM THE GROUP OF CIRCUMSTANCES HERETOFORE DETAILED IN THIS OPINION,
THE BOARD CONCLUDED THAT THE COMPANY HAD CONTINUED TO COUNTENANCE THE
ASSOCIATION.  IT HELD THAT: 

"THE EFFECT OF THE DOMINATION AND SUPPORT OF THE ASSOCIATION BY THE
RESPONDENT PRIOR TO AND DURING THE YEARS SINCE 1935, COULD NOT, UNDER
THE CIRCUMSTANCES, BE DISSIPATED EXCEPT BY AN EXPLICIT ANNOUNCEMENT TO
THE EMPLOYEES THAT THE RESPONDENT WOULD NO LONGER RECOGNIZE OR DEAL
WITH THE ASSOCIATION.  IN THE ABSENCE OF SUCH ACTION BY THE RESPONDENT,
ITS EMPLOYEES WERE NOT AFFORDED THE OPPORTUNITY TO START AFRESH IN
ORGANIZING FOR THE ADJUSTMENT OF THEIR RELATIONS WITH THE EMPLOYER
WHICH THEY MUST HAVE IF THE POLICIES OF THE ACT ARE TO BE
EFFECTUATED." 

WE ARE OF THE OPINION THAT THERE WAS SUBSTANTIAL EVIDENCE TO JUSTIFY
THIS CONCLUSION.  SINCE THE ASSOCIATION PRIOR TO THE PASSAGE OF THE
NATIONAL LABOR RELATIONS ACT IN 1935 WAS OBVIOUSLY A COMPANY-DOMINATED
AND SUPPORTED UNION, THE QUESTION OF THE WEIGHT TO BE GIVEN THE PASSAGE
OF TIME OR SUBSEQUENT EFFORTS TO DISSIPATE THE EFFECT OF THIS EARLY
DOMINATION IS FOR THE BOARD.  ITS CONCLUSION IS AN INFERENCE OF FACT
WHICH MAY NOT BE SET ASIDE UPON JUDICIAL REVIEW BECAUSE THE COURTS
WOULD HAVE DRAWN A DIFFERENT INFERENCE.  LABOR BOARD V. GREYHOUND
LINES, 303 U.S. 261, 270; LABOR BOARD V. FALK CORP., 308 U.S. 453,
461. 

MANAGEMENT CONTROL OVER COMPANY-SPONSORED EMPLOYEE ORGANIZATIONS RUNS
THE ENTIRE SCALE OF INTENSITY.  IT MAY BE SLIGHT OR COMPLETE.  A
GENUINELY FREE UNION COMPOSED OF EMPLOYEES OF ONE CORPORATION ALONE MAY
SATISFY THE REQUIREMENTS OF SEC. 7 BUT WHERE, AS HERE, EVIDENCE EXISTS
OF ORIGINAL EMPLOYER INTERFERENCE, THE BOARD MAY APPRAISE THE SITUATION
AND EVEN FORBID THE APPEARANCE OF SUCH A UNION ON THE BALLOT TO SELECT
BARGAINING REPRESENTATIVES WHERE IN THE BOARD'S JUDGMENT THE EVIDENCE
DOES NOT ESTABLISH THE UNION'S PRESENT FREEDOM FROM EMPLOYER CONTROL. 
LABOR BOARD V. FALK CORP., SUPRA, 461, 462.  IN THE PRESENT CASE THE
BOARD ORDERED THE COMPANY TO COMPLETELY DISESTABLISH THE ASSOCIATION AS
BARGAINING REPRESENTATIVE AND TO CEASE AND DESIST FROM GIVING EFFECT TO
THE CONTRACTUAL ARRANGEMENTS RESULTING FROM THE ASSOCIATION'S FORMER
REPRESENTATION OF THE EMPLOYEES.  FOR THE REASONS GIVEN THIS ORDER WAS,
IN OUR OPINION, WITHIN THE DISCRETION OF THE BOARD. 

THE ORDER OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE CAUSE
IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO ENFORCE THE ORDER OF THE
BOARD.  REVERSED. 

FN1  THE PERTINENT PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT, 49
STAT. 449, 29 U.S.C. SEC. 151 ET SEQ., ARE AS FOLLOWS: 

"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
CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID OR PROTECTION. 

"SEC. 8.  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 7. 

"(2)  TO DOMINATE OR INTERFERE WITH THE FORMATION OR ADMINISTRATION
OF ANY LABOR ORGANIZATION OR CONTRIBUTE FINANCIAL OR OTHER SUPPORT TO
IT:  PROVIDED, THAT SUBJECT TO RULES AND REGULATIONS MADE AND PUBLISHED
BY THE BOARD PURSUANT TO SECTION 6(A), AN EMPLOYER SHALL NOT BE
PROHIBITED FROM PERMITTING EMPLOYEES TO CONFER WITH HIM DURING WORKING
HOURS WITHOUT LOSS OF TIME OR PAY. 

     .         .         .         .         . 

"SEC. 10.  ... 

"(C)  ...  IF UPON ALL THE TESTIMONY TAKEN THE BOARD SHALL BE OF THE
OPINION THAT ANY PERSON NAMED IN THE COMPLAINT HAS ENGAGED IN OR IS
ENGAGING IN ANY SUCH UNFAIR LABOR PRACTICE, THEN THE BOARD SHALL STATE
ITS FINDINGS OF FACT AND SHALL ISSUE AND CAUSE TO BE SERVED ON SUCH
PERSON AN ORDER REQUIRING SUCH PERSON TO CEASE AND DESIST FROM SUCH
UNFAIR LABOR PRACTICE, AND TO TAKE SUCH AFFIRMATIVE ACTION, INCLUDING
REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE
THE POLICIES OF THIS ACT.  ... 

     .         . .         .         . 

"(F)  ...  THE FINDINGS OF THE BOARD AS TO THE FACTS, IF SUPPORTED BY
EVIDENCE, SHALL  ...  BE CONCLUSIVE." 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














JERSEY CENTRAL CO. V. POWER COMM'N, 319 U.S. 61 


NO. 299.  ARGUED JANUARY 4, 5, 1943.  REARGUED MARCH, 4, 5, 1943.  -
DECIDED MAY 3, 1943.  - 129 F.2D 183, AFFIRMED. 


1.  THE CONCLUSION OF THE FEDERAL POWER COMMISSION IN THIS CASE THAT
FACILITIES OWNED AND OPERATED BY A POWER COMPANY WITHIN A STATE - WHICH
CONNECTED WITH FACILITIES OF A SECOND COMPANY, ALSO WITHIN THE STATE,
WHOSE FACILITIES CONNECTED WITH THOSE OF A THIRD COMPANY, IN ANOTHER
STATE - WERE UTILIZED FOR THE TRANSMISSION OF ELECTRIC ENERGY ACROSS
STATE LINES, HELD SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 67. 

2.  FEDERAL REGULATION OF THE TRANSMISSION OF ELECTRIC ENERGY IN
INTERSTATE COMMERCE, UNDER THE FEDERAL POWER ACT OF 1935, IS NOT
LIMITED TO ENERGY AT THE INSTANT IT CROSSES THE STATE LINE, NOR TO
COMPANIES WHICH OWN THE FACILITIES WHICH CROSS THE LINE.  P. 71. 

3.  THE JURISDICTION OF THE FEDERAL POWER COMMISSION DOES NOT EXTEND
TO ALL CONNECTING TRANSMISSION FACILITIES BUT ONLY TO THOSE WHICH
TRANSMIT ENERGY ACTUALLY MOVING IN INTERSTATE COMMERCE.  P. 72. 

4.  SINCE THE POWER COMPANY HERE IN QUESTION OWNS AND OPERATES A
TRANSMISSION LINE WHICH IS A FACILITY WITHIN THE JURISDICTION OF THE
FEDERAL POWER COMMISSION UNDER SEC. 201(B), IT IS A "PUBLIC UTILITY"
UNDER SEC. 201(E).  P. 73. 

5.  THE PURCHASE BY A COMPANY WHICH IS A PUBLIC UTILITY UNDER THE
FEDERAL POWER ACT, OF THE STOCK OF ANOTHER COMPANY WHICH ALSO IS A
PUBLIC UTILITY UNDER THE ACT, REQUIRES THE APPROVAL OF THE FEDERAL
POWER COMMISSION, NOTWITHSTANDING THAT THE PURCHASE COULD BE, AND THE
TRANSFER IS, REGULATED BY THE STATE.  P. 74. 

6.  THE LIMITATION OF SEC. 201(A) OF THE FEDERAL POWER ACT - "SUCH
FEDERAL REGULATION, HOWEVER, TO EXTEND ONLY TO THOSE MATTERS WHICH ARE
NOT SUBJECT TO REGULATION BY THE STATES" - IS INAPPLICABLE TO
REGULATION UNDER SEC. 203(A) OF THE ACQUISITION OF SECURITIES.  P. 76. 

JERSEY CENTRAL POWER & LIGHT CO. V. FEDERAL POWER COMMISSION* . 

*TOGETHER WITH NO. 329, NEW JERSEY POWER & LIGHT CO. V. FEDERAL POWER
COMMISSION, ALSO ON WRIT OF CERTIORARI, 317 U.S. 610, TO THE CIRCUIT
COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 317 U.S. 610, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
FEDERAL POWER COMMISSION, 30 P.U.R. (N.S.)  33. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES BRING HERE FOR REVIEW THE CONSTRUCTION OF SECS. 201
AND 203(A) OF THE FEDERAL POWER ACT, AS AMENDED BY THE PUBLIC UTILITY
ACT OF 1935.  FN1  THESE SECTIONS ARE INCLUDED IN TITLE II, PART II, OF
THE LATTER ACT, WHICH PART RELATES TO FEDERAL REGULATION OF THE
BUSINESS OF THE TRANSMISSION OF ELECTRIC ENERGY IN INTERSTATE COMMERCE
AND THE SALE OF SUCH ENERGY AT WHOLESALE.  BY THESE SECTIONS, THE
PUBLIC UTILITIES SUBJECT TO THE FEDERAL POWER COMMISSION ARE DEFINED
AND THE ACQUISITION OF SECURITIES OF SUCH UTILITIES BY ANY OTHER
UTILITY SUBJECT TO THE ACT IS FORBIDDEN WITHOUT AUTHORIZATION OF THE
COMMISSION. 

I. AFTER THE ENACTMENT OF THE ABOVE AMENDMENTS TO THE FEDERAL POWER
ACT, AND WITHOUT SEEKING COMMISSION AUTHORIZATION, THE NEW JERSEY POWER
& LIGHT COMPANY PURCHASED FROM OTHERS THAN THE ISSUER CERTAIN
SECURITIES OF THE JERSEY CENTRAL POWER & LIGHT COMPANY.  THE FEDERAL
POWER COMMISSION, BEING OF THE OPINION THAT BOTH THE PURCHASER AND THE
ISSUER WERE PUBLIC UTILITIES WITHIN THE DEFINITION OF THE FEDERAL POWER
ACT AND THAT THEREFORE THE ACQUISITION OF THE STOCK WAS ILLEGAL, ON
JUNE 7, 1938, ENTERED AN ORDER THAT THE PURCHASER SUBMIT INFORMATION
CONCERNING THE ACQUISITION OF THE STOCK AND SHOW CAUSE WHY THE
COMMISSION SHOULD NOT PROCEED TO ENFORCE THE REQUIREMENTS OF THE ACT. 
TO THIS ORDER, THE PURCHASER ANSWERED THAT THE JERSEY CENTRAL WAS NOT A
PUBLIC UTILITY WITHIN THE DEFINITION OF THE ACT AND THAT THE APPROVAL
BY THE FEDERAL POWER COMMISSION TO THE ACQUISITION WAS THEREFORE NOT
REQUIRED BY LAW.  BY PERMISSION OF THE COMMISSION, THE JERSEY CENTRAL
INTERVENED AND MADE THE SAME CONTENTION AS TO ITS STATUS.  THUS THERE
WERE PRESENTED FOR DETERMINATION TWO QUESTIONS:  FIRST, WHETHER JERSEY
CENTRAL WAS A PUBLIC UTILITY UNDER THE ACT; AND SECOND, WHETHER IF IT
WAS A PUBLIC UTILITY, THIS ACQUISITION OF ITS STOCK WAS PERMISSIBLE IN
VIEW OF THE DECLARATION OF SEC. 201(A) THAT FEDERAL REGULATION SHOULD
"EXTEND ONLY TO THOSE MATTERS WHICH ARE NOT SUBJECT TO REGULATION BY
THE STATES."  THIS PURCHASE IS SUBJECT TO REGULATION BY NEW JERSEY. 

IT IS ADMITTED THAT THE PURCHASER, JERSEY POWER, IS A PUBLIC UTILITY
UNDER THE ACT.  THE COMMISSION AFTER INVESTIGATION AND HEARING HELD
THAT JERSEY CENTRAL ALSO WAS A PUBLIC UTILITY UNDER THE ACT.  30 P.U.R.
(N.S.)  33.  THIS HOLDING WAS BASED ON FINDINGS THAT JERSEY CENTRAL
OWNS AND OPERATES TRANSMISSION FACILITIES (AN ELECTRIC LINE) EXTENDING
FROM ITS SUBSTATION ADJACENT TO ITS GENERATING PLANT IN SOUTH AMBOY,
NEW JERSEY, TO THE SOUTH BANK OF THE RARITAN RIVER IN THE SAME STATE
WHERE THE LINE JOINS THE TRANSMISSION FACILITIES OF ANOTHER COMPANY,
NOT HERE INVOLVED, THE PUBLIC SERVICE ELECTRIC & GAS COMPANY.  THIS
LATTER COMPANY TRANSMITS THE ENERGY FROM THE POINT OF JUNCTION ON THE
RARITAN TO A COMMON BUS BAR  FN2  IN ONE OF ITS SUBSTATIONS, LOCATED
ALSO IN NEW JERSEY AT MECHANIC STREET, PERTH AMBOY.  FROM THE BUS BAR,
PUBLIC SERVICE HAS TRANSMISSION FACILITIES EXTENDING TO THE MID-CHANNEL
OF KILL VAN KULL, A BODY OF WATER BETWEEN NEW JERSEY AND STATEN ISLAND,
NEW YORK.  AT MID-CHANNEL, STATEN ISLAND EDISON CORPORATION, ANOTHER
UTILITY, CONNECTS WITH ITS TRANSMISSION FACILITIES WHICH EXTEND TO ITS
OWN ATLANTIC SUBSTATION ON STATEN ISLAND.  THE COMMISSION FURTHER
FOUND, IN THE WORDS QUOTED BELOW, THAT ENERGY GENERATED IN NEW JERSEY
BY JERSEY CENTRAL WAS CONSUMED IN NEW YORK AND ENERGY GENERATED IN NEW
YORK WAS CONSUMED IN NEW JERSEY.  FN3 

THE EVIDENCE UPON WHICH THESE FINDINGS WERE BASED SHOWED THAT THE
ENERGY WAS DELIVERED FROM JERSEY CENTRAL TO AND FROM PUBLIC SERVICE
UNDER CONTRACT AND THAT PUBLIC SERVICE LIKEWISE DELIVERED AND RECEIVED
ENERGY UNDER CONTRACT TO AND FROM STATEN ISLAND EDISON.  JERSEY CENTRAL
HAD NO CONTROL OVER THE DESTINATION OF ITS ENERGY AFTER IT MADE
DELIVERY TO PUBLIC SERVICE AT THE RARITAN BUT IT DID, OF COURSE,
CONTROL THE DISTRIBUTION OF ENERGY RECEIVED FROM PUBLIC SERVICE.  THE
DELIVERIES FROM JERSEY CENTRAL TO PUBLIC SERVICE WERE SUBSTANTIAL,
ABOVE FIFTY-FIVE MILLION KILOWATT HOURS IN EACH YEAR OF THE PERIOD 1934
TO 1937, INCLUSIVE.  THOSE FROM PUBLIC SERVICE TO STATEN ISLAND WERE
SMALLER FOR THE SAME PERIOD, AMOUNTING TO THREE TO FOUR MILLION K.W.H.
ANNUALLY AND THE FLOW FROM STATEN ISLAND TO PUBLIC SERVICE AGGREGATED
ABOUT THE SAME AMOUNT.  ALTHOUGH, AS WILL APPEAR HEREAFTER, THE
EVIDENCE SHOWS SOME JERSEY CENTRAL ENERGY IS CONSUMED IN NEW YORK, THE
AMOUNT IS UNKNOWN. 

THE CONNECTION BETWEEN PUBLIC SERVICE AND STATEN ISLAND IS MAINTAINED
PRIMARILY TO GUARD THE STATEN ISLAND DISTRIBUTION AGAINST BREAKDOWN. 
IT IS USED FOR EMERGENCIES A FEW TIMES PER YEAR ON AN AVERAGE.  SURPLUS
ENERGY IS OCCASIONALLY SOLD.  THE REST OF THE TIME THE LINE IS
MAINTAINED "IN BALANCE."  THIS IS TO AVOID A DELAY OF TRANSMISSION IN
AN EMERGENCY.  IF THE CONNECTION WERE NOT MAINTAINED, AN APPRECIABLE
TIME WOULD BE LOST IN COMMUNICATING AND REESTABLISHING THE CONNECTION. 
ANY OSCILLATION OF THE BALANCE, CREATED BY INCREASED DEMAND IN NEW YORK
OR NEW JERSEY, CARRIES ENERGY IN ONE DIRECTION OR IN ANOTHER TO BE
CONSUMED ON ONE SIDE OR THE OTHER OF THE LINE BETWEEN THE STATES.  THIS
IS CALLED "SLOP-OVER" ENERGY.  THESE BULK DELIVERIES WERE THE SUBJECT
OF THE SALE AGREEMENTS BETWEEN PUBLIC SERVICE AND STATEN ISLAND. 

SINCE THE BUS BAR INTO WHICH THE JERSEY CENTRAL ENERGY IS FED ALSO
RECEIVES LARGE AMOUNTS OF ENERGY FROM OTHER SOURCES, THE FACTS
HERETOFORE DETAILED DO NOT PROVE CONCLUSIVELY THAT ENERGY GENERATED BY
JERSEY CENTRAL PASSES TO AND IS CONSUMED IN NEW YORK.  THIS FURTHER
EVIDENCE APPEARS FROM TESTIMONY PRESENTED BY INVESTIGATORS OF THE
COMMISSION.  THEIR EXAMINATION OF PUBLIC SERVICE RECORDS DISCLOSES THAT
THERE WERE MOMENTS OF TIME BETWEEN JANUARY 26, 1937, AND SEPTEMBER 6,
1938, WHEN ALL THE ENERGY FLOWING INTO THE BUS BAR AT MECHANIC STREET
CAME FROM JERSEY CENTRAL AND AT THE SAME MOMENTS ENERGY FLOWED FROM
MECHANIC STREET IN NEW JERSEY TO THE ATLANTIC SUBSTATION IN NEW YORK. 
AS NO POOLS OF ENERGY EXIST FROM WHICH THE FLOW TO NEW YORK COULD HAVE
BEEN DRAWN, IT NECESSARILY FOLLOWS THAT JERSEY CENTRAL PRODUCTION WAS
INSTANTANEOUSLY TRANSMITTED TO NEW YORK.  CF. UTAH POWER & LIGHT CO. V.
PFOST, 286 U.S. 165.  THE AMOUNT OF ENERGY TRANSMITTED WAS SMALL.  THE
EVIDENCE WAS DEVELOPED FROM 184 LOG READINGS SELECTED FROM 25,000.  OF
THE 184 LOG READINGS, 12 SHOWED THIS FLOW OF ENERGY FROM JERSEY CENTRAL
TO NEW YORK BETWEEN AUGUST 26, 1935, THE EFFECTIVE DATE OF THE FEDERAL
POWER ACT, AND MARCH 14, 1938, THE DATE OF THE PRESENT PURCHASE OF
STOCK.  FN4  TWELVE SHOWED SUCH FLOW SHORTLY AFTER THE PURCHASE. 

THIS EVIDENCE, WE THINK, FURNISHES SUBSTANTIAL BASIS  FN5  FOR THE
CONCLUSION OF THE COMMISSION THAT FACILITIES OF JERSEY CENTRAL ARE
UTILIZED FOR THE TRANSMISSION OF ELECTRIC ENERGY ACROSS STATE LINES. 

PETITIONS FOR REHEARING WERE DENIED.  AN APPEAL WAS TAKEN TO THE
CIRCUIT COURT OF APPEALS UNDER THE PROVISIONS OF SEC. 313 OF THE ACT. 
FN6  THE DETERMINATION OF THE COMMISSION WAS AFFIRMED, 129 F.2D 183,
AND IN VIEW OF THE IMPORTANT QUESTIONS OF FEDERAL LAW RAISED BY THE
PETITIONS FOR CERTIORARI, WE GRANTED REVIEW.  317 U.S. 610. 

THE PRIMARY PURPOSE OF TITLE II, PART II, OF THE 1935 AMENDMENTS TO
THE FEDERAL POWER ACT, SUPRA NOTE 1, WAS TO GIVE A FEDERAL AGENCY POWER
TO REGULATE THE SALE OF ELECTRIC ENERGY ACROSS STATE LINES.  REGULATION
OF SUCH SALES HAD BEEN DENIED TO THE STATES BY PUBLIC UTILITIES
COMMISSION V. ATTLEBORO STEAM CO., 273 U.S. 83.  ON ACCOUNT OF THE
DEVELOPMENT OF INTERSTATE SALES OF ELECTRIC ENERGY, IT WAS DEEMED
DESIRABLE BY CONGRESS TO ENTER THIS FIELD OF REGULATION.  FN7 

II.  PETITIONERS CONCEDE THAT SOME ENERGY GENERATED BY JERSEY CENTRAL
AND SOLD AND DELIVERED BY IT TO PUBLIC SERVICE PASSES THEREAFTER TO NEW
YORK.  THEIR CONTENTION IS THAT THE ARRANGEMENTS BY WHICH THIS ENERGY
PASSES TO NEW YORK DOES NOT MAKE JERSEY CENTRAL A PUBLIC UTILITY,
WITHIN THE DEFINITION OF THE ACT, BECAUSE IT "DOES NOT OWN OR OPERATE
FACILITIES FOR THE TRANSMISSION OF ELECTRIC ENERGY, OR SALE OF ELECTRIC
ENERGY AT WHOLESALE, IN INTERSTATE COMMERCE."  "A PERSON OWNING OR
OPERATING FACILITIES  ...  MUST OWN THE FACILITIES WHICH TRANSMIT -
SEND ACROSS - THE ENERGY, AND THIS CONNOTES VOLUNTARY, INTENTIONAL
ACTION."  FROM THE ASSERTED FACT THAT JERSEY CENTRAL HAS NO CONTROL
OVER THE ENERGY PRODUCED BY IT AFTER ITS DELIVERY TO PUBLIC SERVICE,
PETITIONERS CONCLUDE THAT THIS SHORT TRANSMISSION AND SALE, WHOLLY IN
NEW JERSEY, IS AN INTRASTATE TRANSACTION.  WITHOUT THIS SEPARATION FROM
THE MOVEMENT ACROSS THE NEW JERSEY-NEW YORK LINE, THE TRANSMISSION BY
JERSEY CENTRAL WOULD FALL WITHIN THE DEFINITION OF COMMERCE DECLARED BY
TWO FORMER DECISIONS OF THIS COURT. 

IN PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM CO., 273 U.S. 83,
86, THIS COURT HELD IN INTERSTATE COMMERCE THE SALE OF LOCALLY PRODUCED
ELECTRIC CURRENT AT THE STATE BOUNDARY WITH KNOWLEDGE THAT THE BUYER
WOULD UTILIZE THE ENERGY EXTRASTATE.  THE PASSAGE OF CUSTODY AND TITLE
AT THE LINE WAS HELD IMMATERIAL.  WE SEE NO DISTINCTION BETWEEN A SALE
AT OR BEFORE REACHING THE STATE LINE. 

THE OTHER CASE IS ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S.
498.  IN THIS CASE, A WHOLLY-OWNED SUBSIDIARY BOUGHT GAS IN ILLINOIS
FROM ITS PARENT CORPORATION.  THE PARENT HAD TRANSPORTED THE GAS ACROSS
THE STATE LINE AND DELIVERED IT AT A REDUCED PRESSURE TO THE SUBSIDIARY
IN ILLINOIS.  THE SUBSIDIARY TRANSPORTED THE GAS WHOLLY INTRASTATE AND
SOLD AND, ON AGAIN REDUCING PRESSURE, DELIVERED IT TO AN ILLINOIS
DISTRIBUTING COMPANY.  THE INTRASTATE MOVEMENT BY THE SUBSIDIARY WAS
HELD BY US TO BE A PART OF INTERSTATE COMMERCE.  WE SAID THAT THE POINT
AT WHICH TITLE AND CUSTODY PASSED, WITHOUT ARRESTING MOVEMENT, DID NOT
AFFECT THE ESSENTIAL INTERSTATE MOVEMENT OF THE BUSINESS. 

BUT WE NEED NOT DECIDE WHETHER THE INTERVENTION OF PUBLIC SERVICE
BETWEEN JERSEY CENTRAL AND STATEN ISLAND EDISON AND THE CONSEQUENT LOSS
OF ACTUAL CONTROL OF THE ENERGY BY JERSEY CENTRAL IS SIGNIFICANT TO
DISTINGUISH THE TWO CASES JUST CITED.  PETITIONERS, AS WE UNDERSTAND
THEIR BRIEFS, CONCEDE, AND RIGHTLY SO, THAT POWER RESTS IN CONGRESS TO
REGULATE SUCH A FLOW OF ENERGY FROM JERSEY CENTRAL AS HERE OCCURS. 
SUCH A FLOW AFFECTS COMMERCE.  CF. WICKARD V. FILBURN, 317 U.S. 111,
AND CASES CITED.  FN8  BUT PETITIONERS SAY THAT CONGRESS DID NOT INTEND
TO EXERCISE ITS FULL POWER OVER INTERSTATE TRANSMISSION AND DIRECTED
ONLY THAT TRANSMISSION "IN INTERSTATE COMMERCE" SHOULD BE REGULATED. 
AS CONTRASTED WITH "AFFECTING COMMERCE" IN THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, 49 STAT. 803, SEC. 1(C), OR THE "CURRENT OF
COMMERCE" IN THE COMMODITY EXCHANGE ACT, 42 STAT. 998, OR THE BROAD
LANGUAGE OF THE BITUMINOUS COAL ACT, 50 STAT. 83, OR THE AGRICULTURAL
ADJUSTMENT ACT, 50 STAT. 246, THE WORDS "IN INTERSTATE COMMERCE" ARE
SAID, BY PETITIONERS, TO BE THE "STRICTEST TEST OF JURISDICTION
AVAILABLE TO CONGRESS."  BUT THE ARGUMENT, WE THINK, GIVES NO EFFECT TO
THE DEFINITION OF "TRANSMITTED IN INTERSTATE COMMERCE" AS USED IN THIS
ACT.  IN THE NOTE BELOW THERE IS SET OUT THE PERTINENT PROVISIONS OF
SEC. 201 WHICH INDICATE THE MEANING GIVEN THE PHRASE, WHICH PROVISIONS
ARE ITALICIZED FOR QUICK REFERENCE.  FN9 SUBSECTIONS (A) AND (B) SHOW
THE INTENT TO REGULATE SUCH TRANSACTIONS AS ARE BEYOND STATE POWER
UNDER THE ATTLEBORO CASE, SUPRA.  SUBSECTION (C) DEFINES THE ELECTRIC
ENERGY IN COMMERCE AS THAT "TRANSMITTED FROM A STATE AND CONSUMED AT
ANY POINT OUTSIDE THEREOF."  THERE WAS NO CHANGE IN THIS DEFINITION IN
THE VARIOUS DRAFTS OF THE BILL.  THE DEFINITION WAS USED TO "LEND
PRECISION TO THE SCOPE OF THE BILL."  FN10  IT IS IMPOSSIBLE FOR US TO
CONCLUDE THAT THIS DEFINITION MEANS LESS THAN IT SAYS AND APPLIES ONLY
TO THE ENERGY AT THE INSTANT IT CROSSES THE STATE LINE AND SO ONLY TO
THE FACILITIES WHICH CROSS THE LINE AND ONLY TO THE COMPANY WHICH OWNS
THE FACILITIES WHICH CROSS THE LINE.  THE PURPOSE OF THIS ACT WAS
PRIMARILY TO REGULATE THE RATES AND CHARGES OF THE INTERSTATE ENERGY. 
IF INTERVENING COMPANIES MIGHT PURCHASE FROM PRODUCERS IN THE STATE OF
PRODUCTION, FREE OF FEDERAL CONTROL, COST WOULD BE FIXED PRIOR TO THE
INCIDENCE OF FEDERAL REGULATION AND FEDERAL RATE CONTROL WOULD BE
SUBSTANTIALLY IMPAIRED, IF NOT RENDERED FUTILE. 

PETITIONERS MAKE THE POINT, HOWEVER, THAT THIS INTERPRETATION
SUBJECTS CONNECTED FACILITIES TO THE COMMISSION'S JURISDICTION WHICH
FACILITIES WERE DELIBERATELY ELIMINATED BY CONGRESS.  AS AN
ILLUSTRATION THEY CITE THE PROVISIONS OF SEC. 201(A) AS THEY APPEARED
IN A PREDECESSOR BILL.  FN11 WE DO NOT THINK THAT THE RESULT WHICH THE
PETITIONERS APPREHEND FOLLOWS FROM OUR INTERPRETATION.  THE LANGUAGE OF
SEC. 201(A) AND (B) INDICATES A DISTINCTION BETWEEN THE FACILITIES FOR
GENERATION OR PRODUCTION AND THOSE FOR TRANSMISSION.  ALSO, IT IS SALES
AT WHOLESALE ONLY WHICH ARE REGULATED AND, FINALLY, COMMISSION POWER
DOES NOT EXTEND OVER ALL CONNECTING TRANSMITTING FACILITIES BUT ONLY
OVER THOSE WHICH TRANSMIT ENERGY ACTUALLY MOVING IN INTERSTATE
COMMERCE.  MERE CONNECTION DETERMINES NOTHING.    FURTHER, WE THINK THE
DEFINITION IN SUBSECTION (E) OF "PUBLIC UTILITY" COVERS JERSEY CENTRAL,
SINCE THAT COMPANY OWNS AND OPERATES THE TRANSMISSION LINE TO THE
RARITAN AND THAT LINE, AS A RESULT OF THE INTERPRETATION OF INTERSTATE
COMMERCE IN THE PRECEDING PARAGRAPH, IS A FACILITY UNDER COMMISSION
JURISDICTION BY THE TERMS OF SUBSECTION (B).  SUBSECTION (B) DECLARES
THAT THE PROVISIONS OF THIS PART APPLY "TO THE TRANSMISSION OF ELECTRIC
ENERGY AT WHOLESALE IN INTERSTATE COMMERCE."  THIS SUBSECTION GIVES
JURISDICTION OVER FACILITIES USED FOR SUCH TRANSMISSION.  THE BUSINESS
OF TRANSMITTING AND SELLING ELECTRIC ENERGY IS SAID TO BE AFFECTED WITH
A PUBLIC INTEREST AND FEDERAL REGULATION OF A PORTION OF THAT BUSINESS
IS DECLARED NECESSARY.  SEC. 201(A).  THE FACT THAT A COMPANY IS
ENGAGED IN THIS BUSINESS IS NOT DETERMINATIVE OF ITS INCLUSION IN THIS
ACT.  THE DETERMINATIVE FACT IS THE OWNERSHIP OF FACILITIES USED IN
TRANSMISSION.  SUCH USE MAKES THE OWNER OR OPERATOR OF SUCH FACILITIES
A PUBLIC UTILITY UNDER THE ACT (E).  WE CONCLUDE, THEREFORE, THAT
JERSEY CENTRAL IS A PUBLIC UTILITY UNDER THIS ACT.  IT IS QUITE CLEAR,
HOWEVER, FROM SEC. 201 THAT ALTHOUGH A COMPANY MAY BE A PUBLIC UTILITY
UNDER SUBSECTION (E), ALL OF ITS TRANSACTIONS DO NOT THEREBY FALL UNDER
THE REGULATORY POWER OF THE COMMISSION.  IN THE NEXT SECTION OF THIS
OPINION, WE CONSIDER WHETHER THIS PURCHASE OF STOCK IS SUBJECT TO
COMMISSION REGULATION. 

III.  ALTHOUGH ONLY THE FACILITIES OF A PUBLIC UTILITY USED IN THE
TRANSMISSION OR SALE AT WHOLESALE OF ELECTRIC ENERGY IN INTERSTATE
COMMERCE OR THE RATES AND CHARGES FOR SUCH ENERGY ARE SUBJECTED BY
PARTS II AND III OF THE ACT TO REGULATION BY THE FEDERAL POWER
COMMISSION, THAT COMMISSION HAS GENERAL POWER OVER THE ISSUE OF ALL
SECURITIES OR ASSUMPTION OF ALL OBLIGATIONS BY SUCH A PUBLIC UTILITY. 
FN12  THIS GENERALITY OF CONTROL IS IN TURN LIMITED BY AN EXCEPTION IN
THE CASE OF UTILITIES ORGANIZED AND OPERATING IN A STATE WHERE ITS
SECURITY ISSUES ARE REGULATED BY A STATE COMMISSION.  FN13 

IN THE SECTION OF PART II IN QUESTION HERE, HOWEVER, WHICH PROHIBITS
THE PURCHASE OF THE SECURITY OF ANY OTHER PUBLIC UTILITY, WITHOUT
AUTHORIZATION OF THE COMMISSION, THERE IS NO EXCEPTION OF ANY KIND. 
FN14  CONSEQUENTLY THE ACTION OF JERSEY POWER, ADMITTEDLY A PUBLIC
UTILITY UNDER PART II, IN PURCHASING THE STOCK OF JERSEY CENTRAL,
HEREINBEFORE HELD TO BE A PUBLIC UTILITY UNDER THE ACT, REQUIRES
COMMISSION APPROVAL, UNLESS SOME OTHER PROVISION OF LAW EXEMPTS THE
TRANSACTION FROM THIS CONTROL.  PETITIONERS FIND THIS EXEMPTION IN THE
CONCLUDING WORDS OF SEC. 201(A), "SUCH FEDERAL REGULATION, HOWEVER, TO
EXTEND ONLY TO THOSE MATTERS WHICH ARE NOT SUBJECT TO REGULATION BY THE
STATES."  FN15  THE COMMISSION DENIES THAT THIS LIMITATION IS TO BE
READ INTO SEC. 203(A).  IF THE LIMITATION IS TO BE READ AS APPLYING TO
SEC. 203(A), THE LIMITATION EXEMPTS THIS TRANSACTION AND THE PURCHASE
HERE INVOLVED IS BEYOND THE REACH OF COMMISSION POWER FOR THE REASON
THAT THE PURCHASE COULD BE AND THE TRANSFER IS REGULATED BY THE STATE
OF NEW JERSEY.  FN16 

IT WILL BE OBSERVED THAT SEC. 201(A) IS A DECLARATION OF THE END
SOUGHT BY THE ENACTMENT OF THIS PART, THAT IS, FEDERAL REGULATION OF
THE GENERATION, TRANSMISSION AND SALE OF ELECTRIC ENERGY IN COMMERCE. 
THE SOUNDER CONCLUSION, IT SEEMS TO US, IS THAT THIS LIMITATION IS
DIRECTED AT GENERATION, TRANSMISSION AND SALE RATHER THAN THE CORPORATE
FINANCIAL ARRANGEMENTS OF THE UTILITIES ENGAGED IN SUCH PRODUCTION AND
DISTRIBUTION.  THIS CONCLUSION FINDS STRONG SUPPORT IN THE FACT THAT
NOT ONLY SEC. 203(A), HERE UNDER DISCUSSION, BUT SECS. 204(A),  FN17
208  FN18  AND 301(A)  FN19  REGULATE MATTERS OBVIOUSLY SUBJECT TO
STATE REGULATION.  IF THE SCOPE OF THE LIMITATION WAS AS BROAD AS
PETITIONERS CONTEND, NONE OF THESE SECTIONS JUST REFERRED TO WOULD BE
EFFECTIVE.  SECTION 203(A) WOULD BE A NULLITY AS OF COURSE THE
DISPOSITION AND ACQUISITION OF FACILITIES, MERGER, CONSOLIDATION OR
PURCHASE OF SECURITIES BY THEIR UTILITIES MAY BE REGULATED BY THE
STATES.  BUT THIS DOES NOT FOLLOW WHERE A SPECIFIC LIMITATION IS PLACED
ON THE ISSUE OF SECURITIES BY SEC. 204.  SECTION 204 IS NOT RENDERED
USELESS BY SUBSECTION (F) SINCE IT IS APPLICABLE TO STATES WITHOUT
STATE COMMISSIONS AUTHORIZED TO REGULATE SECURITY ISSUES.  SEE NOTES 12
AND 13, SUPRA.  IN VIEW OF THE CONTEMPORANEOUS LEGISLATION AS TO
HOLDING COMPANIES (TITLE I, PUBLIC UTILITY ACT OF 1935, 49 STAT. 803)
WHICH LEFT INDEPENDENT OPERATING COMPANIES OR SUBSIDIARIES OF
UNREGISTERED HOLDING COMPANIES FREE TO ACQUIRE SECURITIES IN OTHER
OPERATING COMPANIES,  FN20  IT IS DIFFICULT TO CONCLUDE THAT BY SEC.
201(A) CONGRESS LIMITED THE REGULATION OF THE ACQUISITION OF SECURITIES
BY SEC. 203(A).  FN21 

THE LEGISLATIVE HISTORY POINTS TO THIS RESULT.  WHEN S. 2796,
CONTAINING THE PROGENITOR OF THE DISPUTED SECTION, WAS REPORTED BY THE
COMMITTEE ON INTERSTATE COMMERCE OF THE SENATE,  FN22 SEC. 201(A)
CONCLUDED: 

"IT IS FURTHER DECLARED TO BE THE POLICY OF CONGRESS TO EXTEND
FEDERAL REGULATION TO THOSE MATTERS WHICH CANNOT BE REGULATED BY THE
STATES, AND ALSO TO EXERT FEDERAL AUTHORITY TO STRENGTHEN AND ASSIST
THE STATES IN THE EXERCISE OF THEIR REGULATORY POWERS AND NOT TO IMPAIR
OR DIMINISH THE POWERS OF ANY STATE COMMISSION." 

THE SAME BILL HAD SECS. 208(A) AND 301(A), JUST REFERRED TO, WHICH
DID REGULATE MATTERS WHICH COULD BE REGULATED BY THE STATES.  AFTER ITS
PASSAGE THROUGH THE SENATE IN THIS FORM, THE BILL WENT TO THE HOUSE AND
201(A) WAS THERE AMENDED BY THE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE (H. REP. NO. 1318, 74TH CONG., 1ST SESS., JUNE 24, 1935) TO
CONCLUDE, AS IT NOW DOES, "SUCH FEDERAL REGULATION, HOWEVER, TO EXTEND
ONLY TO THOSE MATTERS WHICH ARE NOT SUBJECT TO REGULATION BY THE
STATES."  THE REPORT, ALTHOUGH IT COMMENTED ON THE SECTION, DID NOT
MENTION THIS CHANGE AS ONE OF SUBSTANCE FROM THE CONCLUSION OF THE
SENATE BILL.  H. REP. NO. 1318, 74TH CONG., 1ST SESS., P. 26.  SECTIONS
208 AND 301, WITH THEIR REGULATION OF MATTERS SUBJECT TO STATE
REGULATION, REMAINED UNCHANGED.  MORE SIGNIFICANT EVEN THAN THESE
INDICIA OF THE SCOPE OF THE CONCLUDING WORDS OF SEC. 201(A) IS THE FACT
THAT THE COMMITTEE WHICH ADOPTED THE NEW CONCLUDING WORDS, ADOPTED ALSO
SEC. 204, SUBSECTION (F), WITHDRAWING FEDERAL REGULATION FROM SECURITY
ISSUES WHERE SUCH ISSUES ARE "REGULATED BY A STATE COMMISSION."  WHILE,
OF COURSE, THIS MAY HAVE BEEN DONE TO MAKE CERTAIN THAT STATE POWER
WOULD NOT BE INFRINGED, SUCH METICULOUS CARE WAS ENTIRELY UNNECESSARY,
IF THE WORDING OF SEC. 201(A), SIMULTANEOUSLY ADDED, HAD THE EFFECT NOW
URGED.  FN23  ONE MIGHT DEDUCE FROM THE LANGUAGE OF THE REPORT IN THE
HOUSE THAT THE PRECISE QUESTION AT ISSUE HERE WAS IN THE MIND OF THE
HOUSE COMMITTEE AND WAS RESOLVED IN ACCORD WITH OUR CONCLUSION.  FN24
FROM THIS RECORD OF THE PAINS TAKEN BY THE CONGRESS TO MAKE CLEAR THE
RESPECTIVE RESPONSIBILITIES OF FEDERAL AND STATE AUTHORITIES, WE
CONCLUDE THAT POWER WAS GIVEN THE FEDERAL POWER COMMISSION BY SEC. 203
TO REGULATE THE PRESENT TRANSACTION. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  49 STAT. 803, 847, 849, 16 U.S.C. SECS. 824, 824(B). 

FN2  A BUS CONDUCTOR, OR GROUP OF CONDUCTORS, IS A SWITCHGEAR
ASSEMBLY WHICH SERVES AS A COMMON CONNECTION FOR THREE OR MORE
CIRCUITS, AMERICAN STANDARD DEFINITIONS OF ELECTRIC TERMS, PUBLISHED BY
AMERICAN INSTITUTE OF ELECTRICAL ENGINEERS, P. 97. 

FN3  30 P.U.R. (N.S.)  33, 36:  "THAT THE TRANSMISSION FACILITIES
DESCRIBED PROVIDE A DIRECT AND INTERCONNECTED LINE FOR THE FLOW OF
ELECTRIC ENERGY BETWEEN THE SUBSTATION OF JERSEY CENTRAL POWER & LIGHT
COMPANY LOCATED ADJACENT TO ITS GENERATING PLANT IN SOUTH AMBOY AND
ATLANTIC SUBSTATION OF STATEN ISLAND EDISON CORPORATION ON STATEN
ISLAND IN THE STATE OF NEW YORK, VIA MECHANIC STREET SUBSTATION, AND
ELECTRIC ENERGY WAS TRANSMITTED OVER SUCH TRANSMISSION FACILITIES
BETWEEN SUCH POINTS VIA MECHANIC STREET SUBSTATION ON NUMEROUS
OCCASIONS DURING CERTAIN DAYS AND ALMOST DAILY THROUGHOUT 1936, 1937,
AND TO SEPTEMBER, 1938; THAT THERE IS NO EVIDENCE OR TESTIMONY OF ANY
CHANGE IN SUCH OPERATIONS DURING THIS PERIOD OR SUBSEQUENT THERETO;
THAT ELECTRIC ENERGY TRANSMITTED OVER FACILITIES EXTENDING FROM THE
SUBSTATION ADJACENT TO THE GENERATING PLANT OF JERSEY CENTRAL POWER &
LIGHT COMPANY IN SOUTH AMBOY, NEW JERSEY TO ATLANTIC SUBSTATION, ON
STATEN ISLAND, IN THE STATE OF NEW YORK, VIA MECHANIC STREET
SUBSTATION, IS GENERATED IN THE STATE OF NEW JERSEY AND CONSUMED IN THE
STATE OF NEW YORK; THAT ELECTRIC ENERGY TRANSMITTED FROM ATLANTIC
STREET SUBSTATION TO THE SUBSTATION OF JERSEY CENTRAL POWER & LIGHT
COMPANY IN SOUTH AMBOY, NEW JERSEY, VIA MECHANIC STREET SUBSTATION, IS
GENERATED IN THE STATE OF NEW YORK AND CONSUMED IN THE STATE OF NEW
JERSEY; ...  " 

FN4  THERE IS DISPUTE AS TO WHETHER THE 184 INSTANCES SELECTED FOR
EXAMINATION WERE TYPICAL.  IN VIEW OF THE EVIDENCE JUST DETAILED AS TO
THE SERVICE ARRANGEMENTS BETWEEN JERSEY CENTRAL AND PUBLIC SERVICE, AND
PUBLIC SERVICE AND STATEN ISLAND EDISON, THIS SEEMS OF NO IMPORTANCE. 
THERE IS NO CONTENTION THAT THE ENERGY ACTUALLY TRANSMITTED INTERSTATE
SHALL BE TREATED AS ACCIDENTAL OR THAT IT FALLS UNDER THE DE MINIMIS
RULE.  THE METHOD OF SELECTION IS EXPLAINED AS FOLLOWS: 

"Q.  ...  THEN YOU HAVE TAKEN SOME 150* READINGS OUT OF APPROXIMATELY
25,000 READINGS.  JUST WHY DID YOU TAKE THESE PARTICULAR 150, MR.
GRIMSLEY?  A. AT TIMES WHEN CONSIDERABLE POWER WAS GOING OVER FROM
JERSEY CENTRAL AND FOR THE SAME PERIOD IT WAS GOING TO STATEN ISLAND. 
THAT WAS NECESSARY TO MAKE MY DETERMINATION.  NOW WE MIGHT GET 15,000,
I DON'T KNOW, TO COMPARE WITH THOSE, BUT THE POINT WAS TO ESTABLISH
CERTAIN CONDITIONS AT TIME OF FLOW AND AT TIMES WHEN THERE WAS NO
ENERGY FLOWING TO STATEN ISLAND THERE WAS NO POINT IN TAKING THOSE
READINGS. 

*THE COMMISSION'S WITNESS GRIMSLEY SPOKE OF 150 INSTANCES, BUT ACTUAL
COUNT DISCLOSES 184. 

"Q.  THESE ARE HAND-PICKED READINGS WHERE YOU WORKED TOWARD A
PARTICULAR RESULT AND YOU SELECTED THOSE THAT WOULD BEST SHOW WHAT YOU
DESIRED TO ESTABLISH?  A. I WAS TRYING TO GET A CONDITION WHEN THE
ENERGY WAS COMING OVER FROM JERSEY CENTRAL AND FLOWING TO STATEN ISLAND
AND OVER A PERIOD THAT MIGHT BE CONSIDERED TYPICAL. 

"Q.  JUST A MOMENT - A. (INTERPOSING) I DON'T KNOW UNLESS WE GO
THROUGH ALL OF THEM AND COMPARE THEM WITH THESE. 

"Q.  I SUPPOSE IT WOULD BE PRETTY EASY TO PICK OUT 150 OTHER EXAMPLES
WHEN POWER IS FLOWING FROM METUCHEN SUBSTATION TO STATEN ISLAND
SUPPLYING THE MECHANIC STREET LOAD, WOULD IT NOT?  A. OH, I THINK SO,
YES.  MAYBE MORE." 

FN5 "THE FINDING OF THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY
SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE."  SEC. 313(B), 49 STAT. 860,
16 U.S.C. SEC. 825L (B). 

FN6  THE ORDER ENTERED DETERMINED THAT JERSEY CENTRAL POWER & LIGHT
COMPANY IS A PUBLIC UTILITY AND THAT THE ACQUISITION OF ITS STOCK BY
NEW JERSEY POWER & LIGHT COMPANY WAS A VIOLATION OF SEC. 203(A) OF THE
FEDERAL POWER ACT.  30 P.U.R. (N.S.)  33, 36.  THIS ORDER FIXED THE
STATUS OF JERSEY CENTRAL AS A UTILITY AMENABLE TO THE PROVISIONS OF THE
ACT:  E.G., RATES, SEC. 205(A); ASCERTAINMENT OF COST OF PROPERTY, SEC.
209(A); ACCOUNTS, SEC. 201.  ROCHESTER TELEPHONE CORP. V. UNITED
STATES, 307 U.S. 125; FEDERAL POWER COMMISSION V. PACIFIC CO., 307 U.S.
156; COLUMBIA BROADCASTING SYSTEM V. UNITED STATES, 316 U.S. 407. 

FN7  S. REP. NO. 621, 74TH CONG., 1ST SESS., P. 17: 

"IN RECENT YEARS THE GROWTH OF GIANT HOLDING COMPANIES HAS BEEN
PARALLELED BY THE RAPID DEVELOPMENT OF THE ELECTRIC INDUSTRY ALONG
LINES THAT TRANSCEND STATE BOUNDARIES.  TO A GREAT EXTENT THROUGH THE
AGENCY OF THE HOLDING COMPANY, LOCAL OPERATING UNITS HAVE BEEN TIED
TOGETHER INTO VAST INTERSTATE SYSTEMS.  AS A RESULT THE PROPORTION OF
ELECTRIC ENERGY THAT CROSSES STATE LINES HAS STEADILY INCREASED.  WHILE
IN 1928, 10.7 PERCENT OF THE POWER GENERATED IN THE UNITED STATES WAS
TRANSMITTED ACROSS STATE LINES, THE PERCENTAGE HAD INCREASED BY 1933 TO
17.8.  THE AMOUNT OF ENERGY WHICH FLOWED IN INTERSTATE COMMERCE IN 1933
EXCEEDED THE ENTIRE AMOUNT GENERATED IN THE COUNTRY IN 1913. 

"THE NEW PART 2 OF THE FEDERAL WATER POWER ACT WOULD CONSTITUTE THE
FIRST ASSERTION OF FEDERAL JURISDICTION OVER THIS MAJOR INTERSTATE
PUBLIC UTILITY.  THE DECISION OF THE SUPREME COURT IN PUBLIC UTILITIES
COMMISSION V. ATTLEBORO STEAM CO. (273 U.S. 83) PLACED THE INTERSTATE
WHOLESALE TRANSACTIONS OF THE ELECTRIC UTILITIES ENTIRELY BEYOND THE
REACH OF THE STATES.  OTHER FEATURES OF THIS INTERSTATE UTILITY
BUSINESS ARE EQUALLY IMMUNE FROM STATE CONTROL EITHER LEGALLY OR
PRACTICALLY. 

"THE NECESSITY FOR FEDERAL LEADERSHIP IN SECURING PLANNED
COORDINATION OF THE FACILITIES OF THE INDUSTRY WHICH ALONE CAN PRODUCE
AN ABUNDANCE OF ELECTRICITY AT THE LOWEST POSSIBLE COST HAS BEEN
CLEARLY REVEALED IN THE RECENT REPORTS OF THE FEDERAL POWER COMMISSION,
THE MISSISSIPPI VALLEY COMMITTEE, AND THE NATIONAL RESOURCES BOARD. 
ASSERTION OF THE POWER OF THE FEDERAL GOVERNMENT IN THIS DIRECTION
BECOMES THE MORE IMPORTANT AT THE TIME WHEN THE FEDERAL GOVERNMENT IS
COMPELLING THE REORGANIZATION OF HOLDING COMPANIES ALONG REGIONAL
LINES.  THE NEW PART 2 OF THE FEDERAL WATER POWER ACT SEEKS TO BRING
ABOUT THE REGIONAL COORDINATION OF THE OPERATING FACILITIES OF THE
INTERSTATE UTILITIES ALONG THE SAME LINES WITHIN WHICH THE FINANCIAL
AND MANAGERIAL CONTROL IS LIMITED BY TITLE I OF THE BILL."    FN8  CF.
PEOPLES NATURAL GAS CO. V. FEDERAL POWER COMM'N, 127 F.2D 153, 157;
HARTFORD ELECTRIC LIGHT CO. V. FEDERAL POWER COMM'N, 131 F.2D 953,
958. 

FN9  THE FEDERAL POWER ACT OF 1935, 49 STAT. 847: 

"SECTION 201.  (A)  IT IS HEREBY DECLARED THAT THE BUSINESS OF
TRANSMITTING AND SELLING ELECTRIC ENERGY FOR ULTIMATE DISTRIBUTION TO
THE PUBLIC IS AFFECTED WITH A PUBLIC INTEREST, AND THAT FEDERAL
REGULATION OF MATTERS RELATING TO GENERATION TO THE EXTENT PROVIDED IN
THIS PART AND THE PART NEXT FOLLOWING AND OF THAT PART OF SUCH BUSINESS
WHICH CONSISTS OF 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. 

"(B)  THE PROVISIONS OF THIS PART SHALL APPLY TO THE TRANSMISSION OF
ELECTRIC ENERGY IN INTERSTATE COMMERCE AND TO THE SALE OF ELECTRIC
ENERGY AT WHOLESALE IN INTERSTATE COMMERCE, BUT SHALL NOT APPLY TO ANY
OTHER SALE OF ELECTRIC ENERGY OR 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
COMMISSION SHALL HAVE JURISDICTION OVER ALL FACILITIES FOR SUCH
TRANSMISSION OR SALE OF ELECTRIC ENERGY, BUT SHALL NOT HAVE
JURISDICTION, EXCEPT AS SPECIFICALLY PROVIDED IN THIS PART AND THE PART
NEXT FOLLOWING, OVER FACILITIES USED FOR THE GENERATION OF ELECTRIC
ENERGY OR OVER FACILITIES USED IN LOCAL DISTRIBUTION OR ONLY FOR THE
TRANSMISSION OF ELECTRIC ENERGY IN INTRASTATE COMMERCE, OR OVER
FACILITIES FOR THE TRANSMISSION OF ELECTRIC ENERGY CONSUMED WHOLLY BY
THE TRANSMITTER. 

"(C)  FOR THE PURPOSE OF THIS PART, ELECTRIC ENERGY SHALL BE HELD TO
BE TRANSMITTED IN INTERSTATE COMMERCE IF TRANSMITTED FROM A STATE AND
CONSUMED AT ANY POINT OUTSIDE THEREOF; BUT ONLY INSOFAR AS SUCH
TRANSMISSION TAKES PLACE WITHIN THE UNITED STATES. 

     .  .         .         .         . 

"(E)  THE TERM 'PUBLIC UTILITY' WHEN USED IN THIS PART OR IN THE PART
NEXT FOLLOWING MEANS ANY PERSON WHO OWNS OR OPERATES FACILITIES SUBJECT
TO THE JURISDICTION OF THE COMMISSION UNDER THIS PART." 

FN10  S. REP. NO. 621, 74TH CONG., 1ST SESS., P. 49. 

FN11  S. 1725, 74TH CONG., 1ST SESS., FEBRUARY 6, 1935: 

"THE PROVISIONS OF THIS TITLE SHALL APPLY TO THE TRANSMISSION AND
SALE OF ELECTRIC ENERGY IN INTERSTATE COMMERCE AND TO THE PRODUCTION OF
ENERGY FOR SUCH TRANSMISSION AND SALE, BUT SHALL NOT APPLY TO THE
RETAIL SALE OF ENERGY IN LOCAL DISTRIBUTION.  THE COMMISSION SHALL HAVE
JURISDICTION OVER ALL FACILITIES FOR SUCH TRANSMISSION, SALE, AND/OR
PRODUCTION OF ENERGY BY ANY MEANS AND OVER ALL FACILITIES CONNECTED
THEREWITH AS PARTS OF A SYSTEM OF POWER TRANSMISSION SITUATED IN MORE
THAN ONE STATE.  ...  " 

FN12  "SEC.  204.  (A)  NO PUBLIC UTILITY SHALL ISSUE ANY SECURITY,
OR ASSUME ANY OBLIGATION OR LIABILITY AS GUARANTOR, INDORSER, SURETY,
OR OTHERWISE IN RESPECT OF ANY SECURITY OF ANOTHER PERSON, UNLESS AND
UNTIL, AND THEN ONLY TO THE EXTENT THAT, UPON APPLICATION BY THE PUBLIC
UTILITY, THE COMMISSION BY ORDER AUTHORIZES SUCH ISSUE OR ASSUMPTION OF
LIABILITY.  ...  " 

THERE IS THE SAME EXTENT OF CONTROL OVER RECORDS AND ACCOUNTS.  SEC.
301(A). 

FN13  SEC. 204.  "(F)  THE PROVISIONS OF THIS SECTION SHALL NOT EXTEND
TO A PUBLIC UTILITY ORGANIZED AND OPERATING IN A STATE UNDER THE LAWS
OF WHICH ITS SECURITY ISSUES ARE REGULATED BY A STATE COMMISSION." 

FN14  "SEC.  203.  (A)  NO PUBLIC UTILITY SHALL SELL, LEASE, OR
OTHERWISE DISPOSE OF THE WHOLE OF ITS FACILITIES SUBJECT TO THE
JURISDICTION OF THE COMMISSION, OR ANY PART THEREOF OF A VALUE IN
EXCESS OF $50,000, OR BY ANY MEANS WHATSOEVER, DIRECTLY OR INDIRECTLY,
MERGE OR CONSOLIDATE SUCH FACILITIES OR ANY PART THEREOF WITH THOSE OF
ANY OTHER PERSON, OR PURCHASE, ACQUIRE, OR TAKE ANY SECURITY OF ANY
OTHER PUBLIC UTILITY, WITHOUT FIRST HAVING SECURED AN ORDER OF THE
COMMISSION AUTHORIZING IT TO DO SO.  ...  " 

FN15  SEE NOTE 9, SUPRA. 

FN16  SEC. 19 OF THE ACT OF APRIL 21, 1911, AS AMENDED.  NEW JERSEY
STAT.  ANN. 48:  3-10. 

FN17  SEE NOTE 12, SUPRA. 

FN18  "SEC.  208.  (A)  THE COMMISSION MAY INVESTIGATE AND ASCERTAIN
THE ACTUAL LEGITIMATE COST OF THE PROPERTY OF EVERY PUBLIC UTILITY, THE
DEPRECIATION THEREIN, AND, WHEN FOUND NECESSARY FOR RATE-MAKING
PURPOSES, OTHER FACTS WHICH BEAR ON THE DETERMINATION OF SUCH COST OR
DEPRECIATION, AND THE FAIR VALUE OF SUCH PROPERTY. 

"(B)  EVERY PUBLIC UTILITY UPON REQUEST SHALL FILE WITH THE
COMMISSION AN INVENTORY OF ALL OR ANY PART OF ITS PROPERTY AND A
STATEMENT OF THE ORIGINAL COST THEREOF, AND SHALL KEEP THE COMMISSION
INFORMED REGARDING THE COST OF ALL ADDITIONS, BETTERMENTS, EXTENSIONS,
AND NEW CONSTRUCTION."  49 STAT. 853, 16 U.S.C. SEC. 824(G). 

FN19  "SECTION 301.  (A)  EVERY LICENSEE AND PUBLIC UTILITY SHALL
MAKE, KEEP, AND PRESERVE FOR SUCH PERIODS, SUCH ACCOUNTS, RECORDS OR
COST-ACCOUNTING PROCEDURES, CORRESPONDENCE, MEMORANDA, PAPERS, BOOKS,
AND OTHER RECORDS AS THE COMMISSION MAY BY RULES AND REGULATIONS
PRESCRIBE AS NECESSARY OR APPROPRIATE FOR PURPOSES OF THE
ADMINISTRATION OF THIS ACT, INCLUDING ACCOUNTS, RECORDS, AND MEMORANDA
OF THE GENERATION, TRANSMISSION, DISTRIBUTION, DELIVERY, OR SALE OF
ELECTRIC ENERGY, THE FURNISHING OF SERVICES OR FACILITIES IN CONNECTION
THEREWITH, AND RECEIPTS AND EXPENDITURES WITH RESPECT TO ANY OF THE
FOREGOING:  PROVIDED, HOWEVER, THAT NOTHING IN THIS ACT SHALL RELIEVE
ANY PUBLIC UTILITY FROM KEEPING ANY ACCOUNTS, MEMORANDA, OR RECORDS
WHICH SUCH PUBLIC UTILITY MAY BE REQUIRED TO KEEP BY OR UNDER AUTHORITY
OF THE LAWS OF ANY STATE.  ...  " ID. 854, 16 U.S.C. SEC. 825. 

FN20  SEC. 9(A) AND (B), 49 STAT. 817. 

FN21  S. REP. NO. 621, 74TH CONG., 1ST SESS., P. 50, IN REFERRING TO
WHAT IS NOW SEC. 203(A), SAID:  "IN THIS WAY THE COMMISSION WOULD HAVE
AUTHORITY TO KEEP THE SAME KIND OF CHECK UPON THE CREATION OF SPHERES
OF INFLUENCE AMONG OPERATING COMPANIES THAT THE SECURITIES AND EXCHANGE
COMMISSION HAS OVER HOLDING COMPANIES UNDER TITLE I." 

FN22  ID. 

FN23  THE LANGUAGE ADDED TO SEC. 201(A) AND SEC. 204(F) IS
PRACTICALLY IDENTICAL WITH THE SUGGESTIONS MADE BY THE NATIONAL
ASSOCIATION OF RAILROAD AND UTILITY COMMISSIONERS.  SENATE HEARINGS,
COMMITTEE ON INTERSTATE COMMERCE, PUBLIC UTILITY HOLDING COMPANY ACT OF
1935, PP. 748-51. 

FN24  PUBLIC UTILITY ACT OF 1935, H. REP. NO. 1318, 74TH CONG., 1ST
SESS., GENERAL PURPOSE OF TITLE.  "PART II GIVES CONTROL OVER SECURITY
ISSUES OF INTERSTATE OPERATING COMPANIES IN CASES WHERE NO STATE
COMMISSION HAS CONTROL AND OVER THE CONSOLIDATION, PURCHASE, AND SALE
OF INTERSTATE OPERATING PROPERTIES."  PAGE 8. 


"SECTION 203.  DISPOSITION OF PROPERTY; CONSOLIDATIONS; PURCHASE OF
SECURITIES 

"UNDER THE PROVISIONS OF THIS SECTION, APPROVAL MUST BE SECURED FOR
THE SALE, LEASE, OR OTHER DISPOSITION BY A PUBLIC UTILITY OF ALL OF ITS
FACILITIES SUBJECT TO THE JURISDICTION OF THE COMMISSION, OR ANY PART
OF THE FACILITIES IN EXCESS OF A VALUE OF $100,000, AND FOR MERGERS OR
CONSOLIDATIONS OF SUCH FACILITIES OR FOR THE PURCHASE BY A PUBLIC
UTILITY OF THE SECURITIES OF ANY OTHER PUBLIC-UTILITY COMPANY. 
COMMISSION APPROVAL OF AN ACQUISITION, CONSOLIDATION, OR CONTROL WOULD
REMOVE SUCH TRANSACTION FROM THE PROHIBITORY PROVISIONS OF ANY OTHER
LAW."  PAGE 28. 


"THE REQUIREMENT OF SUBSECTION (F) OF THE SENATE BILL THAT APPLICABLE
STATE LAWS MUST BE COMPLIED WITH BEFORE COMMISSION APPROVAL MAY BE
GIVEN, HAS BEEN CHANGED TO AUTHORIZE SECURITY ISSUES WITHOUT FEDERAL
APPROVAL WHERE SUCH ISSUES ARE REGULATED BY A STATE COMMISSION IN WHICH
THE PUBLIC UTILITY IS ORGANIZED AND OPERATING."  PAGE 28. 

MR. JUSTICE ROBERTS: 

THE SOLE QUESTION IS WHETHER JERSEY CENTRAL POWER & LIGHT COMPANY IS
A PUBLIC UTILITY WITHIN THE MEANING OF SUBCHAPTER II OF THE FEDERAL
POWER ACT. 

THE COMPANY'S BUSINESS IS THE GENERATION OF ELECTRICITY WITHIN NEW
JERSEY, AND DISTRIBUTION OF IT IN THE STATE, PRINCIPALLY BY RETAIL SALE
TO THE PUBLIC.  ITS PHYSICAL PROPERTY IS WITHIN NEW JERSEY.  IT NEITHER
OWNS NOR OPERATES ANY FACILITY WHICH CROSSES A STATE LINE. 

JERSEY CENTRAL EXCHANGES ELECTRIC ENERGY WITH ANOTHER UTILITY, PUBLIC
SERVICE.  THE PHYSICAL HOOK-UP BY WHICH THIS EXCHANGE IS EFFECTED IS
SUCH THAT JERSEY CENTRAL AT TIMES TRANSMITS ELECTRICITY TO PUBLIC
SERVICE AND AT TIMES RECEIVES ELECTRICITY FROM PUBLIC SERVICE.  JERSEY
CENTRAL OWNS AND OPERATES A TRANSMISSION LINE SEVEN-EIGHTHS OF A MILE
LONG EXTENDING FROM ITS POWER PLANT TO ANOTHER POINT IN THE STATE WHERE
THE LINE CONNECTS TO A CABLE OWNED BY PUBLIC SERVICE RUNNING TO A
STATION OWNED BY THE LATTER AT PERTH AMBOY, NEW JERSEY.  OVER THESE
CONNECTING FACILITIES EXCHANGES OF TWO SORTS ARE MADE.  ONE IS OF
EMERGENCY SERVICE WHEREBY, IN CASE OF A BREAKDOWN IN EITHER COMPANY'S
SYSTEM, ENERGY IS DRAWN FROM THAT OF THE OTHER.  THE SECOND IS OF
ECONOMY FLOW ENERGY, DELIVERY OF WHICH TAKES PLACE TO EITHER COMPANY
WHEN THE OTHER IS ABLE TO GENERATE AT LESS COST THAN THE RECEIVING
COMPANY COULD WITH ITS OWN FACILITIES.  THE SAVINGS EFFECTED BY THE
LATTER EXCHANGE ARE DIVIDED BETWEEN THE COMPANIES. 

ANY FLOW OF ELECTRIC ENERGY FROM JERSEY CENTRAL TO PUBLIC SERVICE IS
CARRIED FROM THE POINT OF CONNECTION OVER PUBLIC SERVICE CABLE TO A SO
CALLED BUS BAR, A FACILITY OF PUBLIC SERVICE LOCATED IN NEW JERSEY
HAVING A NUMBER OF CONNECTIONS, ONE OF WHICH IS WITH A TRANSMISSION
LINE CONNECTING THE PUBLIC SERVICE SYSTEM WITH THAT OF STATEN ISLAND
EDISON IN THE STATE OF NEW YORK.  OVER THIS LINE PUBLIC SERVICE AND
STATEN ISLAND EXCHANGE FROM TIME TO TIME EMERGENCY SERVICE.  TO
ACCOMPLISH THIS THE LINES OF THE TWO COMPANIES ARE ALWAYS CONNECTED SO
THAT, WHENEVER THERE IS DEMAND FOR ADDITIONAL ENERGY BY EITHER COMPANY,
THE CURRENT FLOWING FROM THE PLANT OF THE OTHER SUPPLIES THE DEFICIENCY
UNTIL A SPEED UP OF THE GENERATORS OF THE RECEIVING COMPANY TAKES CARE
OF THE LOAD AND STOPS THE DRAUGHT UPON THE ENERGY SUPPLY OF THE OTHER. 

THE LINES OF JERSEY CENTRAL AND PUBLIC SERVICE ARE LIKEWISE ALWAYS
CONNECTED SO THAT, IN CASE OF EMERGENCY, SOME OF THE ENERGY GENERATED
BY JERSEY CENTRAL MAY PASS OVER THE LINES OF PUBLIC SERVICE OR VICE
VERSA.  THUS ENERGY GENERATED BY ANY OF THE THREE SYSTEMS AT TIMES
REACHES THAT OF ONE OF THE OTHERS IN CASE OF A DEFICIENCY OF GENERATION
ON THE LINE OF THAT OTHER.  THIS CURRENT, PASSING FOR SHORT PERIODS
FROM TIME TO TIME, DUE TO AN IMBALANCE OF POTENTIAL BETWEEN THE
INTERCONNECTED SYSTEMS, IS CALLED SLOP-OVER CURRENT. 

JERSEY CENTRAL HAS NO CONTRACTUAL RELATIONS WITH STATEN ISLAND AND
DOES NOT SELL IT ANY ENERGY.  JERSEY CENTRAL'S RELATIONS WITH PUBLIC
SERVICE ARE INDEPENDENT OF ANY CONTRACTUAL RELATIONS BETWEEN THE LATTER
AND STATEN ISLAND.  AT TIMES WHEN ENERGY IS FLOWING FROM JERSEY CENTRAL
TO PUBLIC SERVICE IT IS ALSO FLOWING FROM PUBLIC SERVICE TO STATEN
ISLAND AND, IN FACT, AT SUCH TIMES, SOME OF THE ENERGY SOLD BY JERSEY
CENTRAL TO PUBLIC SERVICE PASSES FROM PUBLIC SERVICE TO STATEN ISLAND
UNDER PUBLIC SERVICE'S CONTRACTUAL ARRANGEMENTS WITH STATEN ISLAND. 

ON THE BASIS OF THESE FACTS, THE COMMISSION HELD THAT JERSEY CENTRAL
OWNED AND OPERATED TRANSMISSION FACILITIES UTILIZED FOR THE
TRANSMISSION OF ELECTRIC ENERGY IN INTERSTATE COMMERCE, AND WAS,
THEREFORE, A PUBLIC UTILITY WITHIN THE MEANING OF THE ACT, ALTHOUGH THE
COMPANY SELLS NO ELECTRICITY DIRECTLY IN INTERSTATE COMMERCE. 

I AM OF OPINION THAT THE PROVISIONS OF THE ACT REQUIRE THE CONTRARY
CONCLUSION, AND THIS READING OF THE STATUTE IS POWERFULLY REINFORCED
WHEN THE MISCHIEF INTENDED TO BE REMEDIED AND THE LEGISLATIVE HISTORY
OF THE ACT ARE CONSIDERED. 

THERE IS NO DISPUTE CONCERNING THE EXIGENCY WHICH MOVED CONGRESS TO
ADOPT THE STATUTE.  IT HAD BEEN SETTLED THAT THE TRANSMISSION AND SALE
OF A COMMODITY, SUCH AS ELECTRICITY OR GAS, PRODUCED IN ONE STATE,
TRANSPORTED AND FURNISHED DIRECTLY TO CONSUMERS IN ANOTHER STATE, IN
INTERSTATE COMMERCE, DID NOT PRECLUDE REGULATION OF THE RATES TO THE
CONSUMER BY THE STATE OF DELIVERY.  FN1 IN 1927, HOWEVER, THIS COURT
HELD THAT WHERE A COMPANY GENERATED ELECTRIC ENERGY AND TRANSMITTED IT,
UNDER CONTRACT, TO ANOTHER PUBLIC UTILITY IN AN ADJOINING STATE, AT THE
STATE LINE, WHENCE THE PURCHASING COMPANY TRANSMITTED AND SOLD THE
ENERGY TO ITS CONSUMERS, THE RATE AT WHICH THE FIRST COMPANY SOLD TO
THE SECOND WAS NOT SUBJECT TO REGULATION BY THE AUTHORITIES OF THE
STATE OF ORIGINATION.  FN2  THE COURT STATED:  "THE RATE IS THEREFORE
NOT SUBJECT TO REGULATION BY EITHER OF THE TWO STATES IN THE GUISE OF
PROTECTION TO THEIR RESPECTIVE LOCAL INTERESTS; BUT, IF SUCH REGULATION
IS REQUIRED IT CAN ONLY BE ATTAINED BY THE EXERCISE OF THE POWER VESTED
IN CONGRESS."  IT IS CLEAR THAT THE MISCHIEF TO BE REMEDIED WAS THE
INCOMPETENCE OF THE STATES TO REGULATE RATES FOR THE SALE BY THE
PRODUCER OF ELECTRICITY AT WHOLESALE TO BE TRANSMITTED AND DELIVERED TO
AN EXTRASTATE UTILITY AT OR ACROSS A STATE LINE.  THIS WAS THE PROBLEM
AND THE ONLY PROBLEM WHICH CONFRONTED THE CONGRESS.  THE LEGISLATION
ITSELF DISCLOSES THAT, IN ENACTING PART II OF THE ACT, CONGRESS DID NOT
GO BEYOND THE NEEDS OF THE SITUATION. 

JERSEY CENTRAL'S SECURITY ISSUES ARE NOT SUBJECT TO REGULATION UNDER
SEC. 203 UNLESS IT IS A PUBLIC UTILITY WITHIN THE DEFINITION OF THE
ACT.  TO DETERMINE WHETHER IT IS, WE MUST TURN TO SEC. 201.  SUBSECTION
(E) DEFINES A PUBLIC UTILITY AS "ANY PERSON WHO OWNS OR OPERATES
FACILITIES SUBJECT TO THE JURISDICTION OF THE COMMISSION UNDER THIS
PART."  WE MUST LOOK TO OTHER PROVISIONS OF THE SECTION TO ASCERTAIN
WHAT FACILITIES ARE SUBJECT TO THE COMMISSION'S JURISDICTION. 
SUBSECTION (A) READS:  "IT IS HEREBY DECLARED THAT THE BUSINESS OF
TRANSMITTING AND SELLING ELECTRIC ENERGY FOR ULTIMATE DISTRIBUTION TO
THE PUBLIC IS AFFECTED WITH A PUBLIC INTEREST, AND THAT FEDERAL
REGULATION OF MATTERS RELATING TO GENERATION TO THE EXTENT PROVIDED IN
THIS PART ...  AND OF THAT PART OF SUCH BUSINESS WHICH CONSISTS OF 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." 

IT IS CONCEDED THAT JERSEY CENTRAL, AS RESPECTS GENERATION AND SALE
OF THE ENERGY IN QUESTION, AND AS RESPECTS ALSO ITS SECURITY ISSUES,
WAS, AT THE DATE OF ADOPTION OF THE FEDERAL ACT, AND STILL IS, SUBJECT
TO REGULATION UNDER THE LAW OF NEW JERSEY, AND THAT LAW DOES REGULATE
THESE MATTERS.  FN3 

THE NATURE OF JERSEY CENTRAL'S DEALING WITH PUBLIC SERVICE CERTAINLY
DOES NOT FAIRLY FALL WITHIN THE SCOPE OF THE STATUTORY DESCRIPTION OF
THE "BUSINESS" OF TRANSMITTING AND SELLING ELECTRIC ENERGY IN
INTERSTATE COMMERCE.  BUT, OUT OF ABUNDANCE OF CAUTION, CONGRESS ADDED
THAT THE FEDERAL REGULATION SHOULD EXTEND ONLY "TO THOSE MATTERS WHICH
ARE NOT SUBJECT TO REGULATION BY THE STATES."  LANGUAGE COULD NOT BE
PLAINER, NOR MORE CLEARLY EXCLUDE THE PRESENT CASE.  CONGRESS DESIRED
TO FILL THE GAP LEFT BY THE INABILITY OF THE STATES TO REGULATE CERTAIN
FORMS OF INTERSTATE TRANSMISSION AND SALE.  CONGRESS MADE CLEAR THAT IT
INTENDED TO GO NO FURTHER.  THE OPINION OF THE COURT IGNORES THIS
FUNDAMENTAL DECLARATION OF PURPOSE AND POLICY AND READS AS AN
INDEPENDENT MANDATE IN VACUO THE WORDS OF SUBSECTION (E).  THIS I THINK
IS NOT A FAIR CONSTRUCTION. 

SUBSECTION (B) PROVIDES:  "THE PROVISIONS OF THIS PART SHALL APPLY TO
THE TRANSMISSION OF ELECTRIC ENERGY IN INTERSTATE COMMERCE AND TO THE
SALE OF ELECTRIC ENERGY AT WHOLESALE IN INTERSTATE COMMERCE, BUT SHALL
NOT APPLY TO ANY OTHER SALE OF ELECTRIC ENERGY.  ..."  HERE AGAIN
CONGRESS IS AT PAINS TO RESTRICT THE FEDERAL REGULATION TO A COMMERCIAL
TRANSACTION IN INTERSTATE COMMERCE TO WHICH THE COMPANY TO BE REGULATED
IS A PARTY. 

THE ELECTRIC CURRENT WHICH SOMETIMES REACHES STATEN ISLAND IS, NO
DOUBT, "PROPELLED" IN SOME MEASURE BY JERSEY CENTRAL'S DYNAMOS, BUT
WHETHER THE CURRENT SHALL GO TO STATEN ISLAND OR BE USED WITHIN THE
STATE IS A MATTER WHOLLY BEYOND JERSEY CENTRAL'S CONTROL IN POINT
EITHER OF LAW OR OF FACT.  PUBLIC SERVICE MAY OR MAY NOT CHOOSE TO
TRANSMIT AND SELL THE ENERGY INTERSTATE AS A PART OF THE INTERSTATE
BUSINESS WHICH IS SUBJECT TO REGULATION BY THE COMMISSION.  THE CURRENT
FLOWS BEYOND THE STATE LINE ONLY BECAUSE PUBLIC SERVICE MAINTAINS WIRES
FOR THAT PURPOSE AND TURNS THE CURRENT INTO THEM.  WHAT SEC. 201
AUTHORIZES THE COMMISSION TO REGULATE IS "THAT PART OF SUCH BUSINESS
WHICH CONSISTS OF THE TRANSMISSION OF ELECTRIC ENERGY IN INTERSTATE
COMMERCE."  JERSEY CENTRAL IS NOT ENGAGED IN THE BUSINESS OF
TRANSMITTING ELECTRIC ENERGY BEYOND THE POINT OF CONNECTION WITH PUBLIC
SERVICE'S SYSTEM, CERTAINLY NOT BEYOND THE BUS BAR WHERE PUBLIC SERVICE
ALONE DETERMINES ITS DESTINATION.  NOR IS JERSEY CENTRAL ENGAGED IN
INTERSTATE COMMERCE BECAUSE, AFTER THE CURRENT REACHES THE BUS BAR OF
PUBLIC SERVICE, THAT COMPANY DIVERTS IT TO STATEN ISLAND. 

THE CONSTRUCTION NOW GIVEN TO THE ACT MAKES THE COMMISSION'S POWER TO
REGULATE JERSEY CENTRAL DEPEND, NOT ON THE NATURE OF ITS OWN BUSINESS,
AS SEC. 201(A) AND (B) PLAINLY REQUIRE, BUT ON THE INTERSTATE CHARACTER
OF THE BUSINESS OF PUBLIC SERVICE, OVER WHICH JERSEY CENTRAL HAS NO
CONTROL AND WHICH IS SUBJECT TO REGULATION BY THE COMMISSION.  SEC.
201(B) AND (E).  I CAN FIND NO SUPPORT IN THE LANGUAGE, HISTORY OR
AVOWED PURPOSES OF THE ACT FOR SUCH A CONSTRUCTION.  MOREOVER, IT IS IN
FLAT CONTRADICTION TO THE WORDS OF SEC. 201(A), (B), AND (E), WHICH,
WHEN READ TOGETHER, EXPLICITLY EXCLUDE FROM THE JURISDICTION OF THE
COMMISSION A "PERSON" WHO "OWNS OR OPERATES FACILITIES" OTHERWISE
SUBJECT TO THE JURISDICTION OF THE COMMISSION BY PROVIDING, IN SEC.
201(A), THAT THE FEDERAL REGULATION IS "TO EXTEND ONLY TO THOSE MATTERS
WHICH ARE NOT SUBJECT TO REGULATION BY THE STATES."  JERSEY CENTRAL IS
ENGAGED IN GENERATING ELECTRICITY WHICH IT SELLS AND DELIVERS TO PUBLIC
SERVICE, ALL WITHIN THE STATE.  WHEN THE PRESENT ACT WAS ADOPTED IT WAS
NOT DOUBTED, AND IN THE LIGHT OF OUR DECISIONS IT COULD NOT BE, THAT
THE SELLER'S BUSINESS WAS INTRASTATE AND SUBJECT TO STATE REGULATION. 
THE MANUFACTURE AND SALE OF A PRODUCT WHOLLY WITHIN A STATE IS NOT
INTERSTATE COMMERCE EVEN THOUGH THE PRODUCT IS DESTINED BY THE BUYER TO
BE SHIPPED OUT OF THE STATE IN INTERSTATE COMMERCE.  FN4  THAT THIS IS
EQUALLY THE CASE WHERE THE PRODUCT PRODUCED AND SOLD WITHIN THE STATE
IS GAS OR ELECTRICITY IS IMPLICIT IN OUR DECISIONS.  FN5  AS WILL
PRESENTLY APPEAR MORE IN DETAIL, WHILE IT WAS THE PURPOSE OF CONGRESS,
IN ENACTING THE FEDERAL POWER ACT TO EXTEND THE NATIONAL CONTROL OVER
THE INTERSTATE TRANSMISSION AND SALE OF ELECTRICAL ENERGY, WHICH HAD
BEEN HELD TO BE BEYOND THE CONTROL OF THE STATES, THE PURPOSE WAS
EQUALLY TO PRESERVE UNIMPAIRED THE EXISTING STATE POWER OF REGULATION
OVER INTRASTATE PRODUCTION AND SALE.  THE PROVISIONS OF SEC. 201 TO
WHICH I HAVE REFERRED WERE INTRODUCED INTO THE LEGISLATION WHICH BECAME
THE FEDERAL POWER ACT IN THE COURSE OF ITS PROGRESS THROUGH CONGRESS
WITH THE REPEATEDLY DECLARED OBJECT OF ACCOMPLISHING THAT PRECISE
PURPOSE. 

I SUBMIT THAT TO ARGUE THAT, AS JERSEY CENTRAL'S SEVEN-EIGHTHS' MILE
INTRASTATE LINE WHICH CONNECTS WITH THE LINES OF ITS INTRASTATE
CUSTOMER, PUBLIC SERVICE, IS A FACILITY OVER WHICH FLOWS ENERGY WHICH
SOMETIMES ULTIMATELY FINDS ITS WAY FROM PUBLIC SERVICE'S SYSTEM INTO
NEW YORK, AND, HENCE, A FACILITY FOR TRANSMISSION OF ELECTRIC ENERGY
INTERSTATE, OWNERSHIP OF WHICH SUBJECTS THE OWNER TO THE COMMISSION'S
JURISDICTION, IS TO TIE TOGETHER TWO PHRASES FOUND IN SEPARATE
PROVISIONS OF THE ACT AND TO IGNORE THE STATUTE'S PROVISIONS VIEWED IN
THEIR INTEGRITY AND ENTIRETY.  BY THIS PROCESS ANY DESIRED RESULT MAY
READILY BE REACHED. 

I CONCLUDE THAT THE PROVISIONS OF SEC. 203  FN6  RELATING TO
REGULATION OF SECURITY ISSUES SHOULD NOT BE CONSIDERED SINCE SEC. 201
WHOLLY EXCLUDES JERSEY CENTRAL FROM THE SCHEME OF CONTROL ESTABLISHED
BY THE ACT.  BUT IF THIS CONCLUSION WERE LESS OBVIOUS FROM THE FACE OF
THE ACT, THE LEGISLATIVE HISTORY IS CONVINCING. 

WHEN A PROPOSED BILL FIRST CAME BEFORE A COMMITTEE OF THE HOUSE OF
REPRESENTATIVES, THE CHAIRMAN OF THE FEDERAL POWER COMMISSION, ITS
SPONSOR, SAID:  FN7 

"THE NEW TITLE II OF THE ACT IS DESIGNED TO SECURE COORDINATION ON A
REGIONAL SCALE OF THE NATION'S POWER RESOURCES AND TO FILL THE GAP IN
THE PRESENT STATE REGULATION OF ELECTRIC UTILITIES.  IT IS CONCEIVED
ENTIRELY AS A SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, STATE
REGULATION." 

CONTROL OF THE "PRODUCTION" OF ELECTRIC ENERGY, AND "OVER ALL
FACILITIES" FOR ITS TRANSMISSION AND SALE IN INTERSTATE COMMERCE, "AND
OVER ALL FACILITIES CONNECTED THEREWITH AS PARTS OF A SYSTEM OF POWER
TRANSMISSION SITUATED IN MORE THAN ONE STATE.  ...  " 

THE NATIONAL ASSOCIATION OF RAILROAD AND UTILITY COMMISSIONERS, WHILE
RECOGNIZING THE NEED OF FEDERAL LEGISLATION TO FILL THE "GAP" CREATED
BY DECISIONS OF THIS COURT, URGED THAT THE BILL, AS INTRODUCED, WOULD
OVERLAP AND BREAK DOWN STATE REGULATION AND SUBMITTED AMENDMENTS
DESIGNED TO AVOID THIS RESULT.  FN8 

THE SPOKESMAN FOR THE ASSOCIATION SAID OF THESE PROPOSED CHANGES:
FN9  "WE HAVE, ACCORDINGLY, SOUGHT TO MAKE IT AS CLEAR AS LANGUAGE WILL
THAT CONGRESS DOES NOT IN THIS CASE INTEND TO REGULATE ANYTHING EXCEPT
INTERSTATE POWER, SOLD AT WHOLESALE."  WITH ALTERATIONS OF EXPRESSION
NOT AFFECTING THEIR SENSE, THE PROPOSED AMENDMENTS OF SEC. 201(A) WERE
EMBODIED IN THE SECTION AS ENACTED. 

I NEED NOT FOLLOW IN DETAIL THE CHANGES WHICH WERE MADE IN THE BILL
IN BOTH BRANCHES OF CONGRESS.  SUFFICE IT TO SAY THAT THEY
PROGRESSIVELY EMPHASIZED THE PURPOSE TO REGULATE ONLY THOSE MATTERS
WHICH THE STATES COULD NOT REGULATE. 

IN REPORTING THE REVISED BILL TO THE SENATE, THE COMMITTEE SAID:
FN10 

"SUBSECTION (A)  ...  DECLARES THE POLICY OF CONGRESS TO EXTEND THAT
REGULATION TO THOSE MATTERS WHICH CANNOT BE REGULATED BY THE STATES AND
TO ASSIST THE STATES IN THE EXERCISE OF THEIR REGULATORY POWERS, BUT
NOT TO IMPAIR OR DIMINISH THE POWERS OF ANY STATE COMMISSION." 

"SUBSECTION (B) DEFINES THE SCOPE OF THIS PART OF THE ACT AND THE
JURISDICTION OF THE COMMISSION.  ...  THIS SUBSECTION LEAVES TO THE
STATES THE AUTHORITY TO FIX LOCAL RATES EVEN IN CASES WHERE THE ENERGY
IS BROUGHT IN FROM ANOTHER STATE.  IN PENNSYLVANIA GAS CO. V. PUBLIC
SERVICE COMMISSION (252 U.S. 23), THE SUPREME COURT HELD THAT SUCH
RATES MAY BE REGULATED BY THE STATES IN THE ABSENCE OF FEDERAL
LEGISLATION.  THE PRESENT BILL CAREFULLY REFRAINS FROM ASSERTING
FEDERAL JURISDICTION OVER THESE RATES.  THE RATE-MAKING POWERS OF THE
COMMISSION ARE CONFINED TO THOSE WHOLESALE TRANSACTIONS WHICH THE
SUPREME COURT HELD IN PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM &
ELECTRIC CO. (273 U.S. 83), TO BE BEYOND THE REACH OF THE STATES." 

NOTWITHSTANDING THE STATEMENT IN THE SENATE COMMITTEE'S REPORT ON THE
SENATE BILL THAT "THE REVISION HAS ALSO REMOVED EVERY ENCROACHMENT UPON
THE AUTHORITY OF THE STATES," THE HOUSE, NOT SATISFIED THAT STATE POWER
HAD BEEN ADEQUATELY PROTECTED, STRUCK OUT THE ENTIRE SENATE BILL BY
AMENDMENT AND SUBSTITUTED A NEW DRAFT.  IN PRESENTING THE AMENDED BILL
TO THE HOUSE, THE COMMITTEE REPORTED:  FN11 

"THE NEW PARTS (II AND III) ARE DESIGNED TO MEET THE SITUATION WHICH
HAS BEEN CREATED BY THE RECENT RAPID GROWTH OF ELECTRIC UTILITIES ALONG
INTERSTATE LINES.  ...  UNDER THE DECISION OF THE SUPREME COURT OF THE
UNITED STATES IN PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM & E.
CO. (273 U.S. 83), THE RATES CHARGED IN INTERSTATE WHOLESALE
TRANSACTIONS MAY NOT BE REGULATED BY THE STATES.  PART II GIVES THE
FEDERAL POWER COMMISSION JURISDICTION TO REGULATE THESE RATES.  A
'WHOLESALE' TRANSACTION IS DEFINED TO MEAN THE SALE OF ELECTRIC ENERGY
FOR RESALE AND THE COMMISSION IS GIVEN NO JURISDICTION OVER LOCAL RATES
EVEN WHERE THE ELECTRIC ENERGY MOVES IN INTERSTATE COMMERCE. 

"PART II GIVES CONTROL OVER SECURITY ISSUES OF INTERSTATE OPERATING
COMPANIES IN CASES WHERE NO STATE COMMISSION HAS CONTROL AND OVER THE
CONSOLIDATION, PURCHASE, AND SALE OF INTERSTATE OPERATING PROPERTIES. 
... 

"THE BILL TAKES NO AUTHORITY FROM STATE COMMISSIONS AND CONTAINS
PROVISIONS AUTHORIZING THE FEDERAL COMMISSION TO AID THE STATE
COMMISSIONS IN THEIR EFFORTS TO ASCERTAIN AND FIX REASONABLE CHARGES. 
...  PROBABLY, NO BILL IN RECENT YEARS HAS SO RECOGNIZED THE
RESPONSIBILITIES OF STATE REGULATORY COMMISSIONS AS DOES TITLE II OF
THIS BILL." 

IN CONFERENCE COMMITTEE SEC. 201(A)(B) TOOK ITS PRESENT FORM, WHICH
IS THE LANGUAGE OF THE HOUSE BILL IN ALL PARTICULARS HERE MATERIAL.  IN
THE LIGHT OF THIS HISTORY IT IS EVIDENT THE CONGRESS SPECIFICALLY
REFRAINED FROM THE REGULATION OF THE BUSINESS OF ANY UTILITY WHOSE
BUSINESS TRANSACTIONS, ESPECIALLY AS RESPECTS TRANSMISSION AND SALE OF
ENERGY, STATE AUTHORITY COULD REGULATE.  SUCH IS THE INSTANT CASE. 

BOTH THE LANGUAGE OF THE ACT AND THE LEGISLATIVE HISTORY SHOW THAT
CONGRESS DID NOT INTEND TO REGULATE MATTERS AFFECTING COMMERCE, AS WELL
AS COMMERCE ITSELF.  IT IS INTERESTING TO COMPARE, IN THIS CONNECTION,
OTHER STATUTES ENACTED BY THE SAME CONGRESS.  THREE ADOPTED IN JULY AND
AUGUST 1935 COVERED ACTIVITIES "AFFECTING" COMMERCE N12; THREE,
INCLUDING THE FEDERAL POWER ACT IN QUESTION, ADOPTED IN AUGUST 1935 DID
NOT COVER ACTIVITIES "AFFECTING" COMMERCE.  FN13  THUS THE
LEGISLATURE'S DISCRIMINATING USE OF LANGUAGE ARGUES STRONGLY FOR DENIAL
OF THE JURISDICTION THE COMMISSION ASSERTS. 

I THINK THE JUDGMENT SHOULD BE REVERSED. 

FN1  PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMMISSION, 252 U.S. 23. 

FN2  PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM CO., 273 U.S.
83. 

FN3  N.J. REV. STATS., 1937, TITLE 48, CHAPS.  1 TO 3; N.J. STATS.
ANN. 48:  1-1 TO 48:  3-20. 

FN4  SEE CHASSANIOL V. GREENWOOD, 291 U.S. 584; PARKER V. BROWN, 317
U.S. 341, 360, 361, AND CASES CITED. 

FN5  UNION DRY GOODS CO. V. PUBLIC SERVICE CORP., 248 U.S. 372;
PUBLIC UTILITIES COMMISSION V. LANDON, 249 U.S. 236, 245; PENNSYLVANIA
GAS CO. V. PUBLIC SERVICE COMMISSION, 252 U.S. 23; MISSOURI V. KANSAS
GAS CO., 265 U.S. 298, 308; EAST OHIO GAS CO. V. TAX COMMISSION, 283
U.S. 465, 471; CF. UTAH POWER & LIGHT CO. V. PFOST 286 U.S. 165;
COVERDALE V. PIPE LINE CO., 303 U.S. 604, 611. 

FN6  IT IS TO BE NOTED THAT, EVEN IF JERSEY CENTRAL WERE A UTILITY
WITHIN THE ACT, THE PROVISO IN SEC. 201(A) LIMITS THE JURISDICTION OF
THE COMMISSION UNDER SEC. 203 RESPECTING THE COMPANY'S ACQUISITION AND
DISPOSITION OF FACILITIES AND ISSUE OF SECURITIES, JUST AS IT LIMITS
THE COMMISSION'S AUTHORITY OVER OTHER PHASES OF THE BUSINESS, SINCE
THESE MATTERS ARE SUBJECT TO REGULATION, AND ARE, IN FACT, REGULATED BY
NEW JERSEY. 

FN7  HEARINGS ON H.R. 5423 BEFORE HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 74TH CONGRESS, 1ST SESSION, P. 384. 

FN8  HEARINGS, SUPRA, PP. 1620, 1622. 

FN9  ID., P. 1638. 

FN10  SENATE REPORT NO. 621, 74TH CONG., 1ST SESS., P. 48. 

FN11  HOUSE REPORT NO. 1318, 74TH CONG., 1ST SESS., P. 7. 

FN12  SEE NATIONAL LABOR RELATIONS ACT, SEC. 2(7), 49 STAT. 449, 450,
29 U.S.C. SEC. 152(7); PUBLIC UTILITY HOLDING COMPANY ACT, SEC. 1(C),
49 STAT. 803, 804, 15 U.S.C. SEC. 79(C); BITUMINOUS COAL CONSERVATION
ACT, SEC. 1, 49 STAT. 991, 992. 

FN13  SEE FEDERAL POWER ACT, SEC. 201(B), 49 STAT. 838, 847, 16
U.S.C. SEC. 824(B); MOTOR CARRIER ACT, SEC. 202(B), 49 STAT. 543, 49
U.S.C. SEC. 302(B); FEDERAL ALCOHOL ADMINISTRATION ACT, SEC. 3, 49
STAT. 977, 978, 27 U.S.C. SEC. 203.    THE CHIEF JUSTICE AND MR.
JUSTICE FRANKFURTER CONCUR IN THIS OPINION. 
..END :



NOBLE V. UNITED STATES, 319 U.S. 88 


NO. 511.  ARGUED APRIL 6, 7, 1943.  - DECIDED MAY 3, 1943.  - 45
F.SUPP.  793, AFFIRMED. 


IN A PERMIT TO OPERATE AS A CONTRACT CARRIER UNDER THE "GRANDFATHER"
CLAUSE OF SEC. 209(A) OF THE MOTOR CARRIER ACT OF 1935, IT IS WITHIN
THE AUTHORITY OF THE INTERSTATE COMMERCE COMMISSION - UNDER SEC.
209(B), REQUIRING THAT THE COMMISSION SPECIFY IN SUCH PERMIT "THE
BUSINESS OF THE CARRIER COVERED THEREBY AND THE SCOPE THEREOF" - TO
SPECIFY THE SHIPPERS OR TYPES OF SHIPPERS FOR WHOM THE CARRIER MAY HAUL
DESIGNATED COMMODITIES.  P. 91. 

NOBLE, DOING BUSINESS AS NOBLE TRANSIT CO., V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MINNESOTA. 

APPEAL FROM A JUDGMENT OF A DISTRICT COURT OF THREE JUDGES,
DISMISSING THE COMPLAINT IN A SUIT TO SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL  FN1  FROM THE JUDGMENT OF A THREE-JUDGE COURT (45
F.SUPP.  793) WHICH DISMISSED A COMPLAINT FILED BY APPELLANT TO REVIEW
AND ANNUL CERTAIN RESTRICTIVE PROVISIONS OF AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION (28 M.C.C. 653), GRANTING APPELLANT A PERMIT TO
OPERATE AS A CONTRACT CARRIER BY MOTOR VEHICLE UNDER THE MOTOR CARRIER
ACT OF 1935(49 STAT. 543, 49 U.S.C. SEC. 301), NOW DESIGNATED AS PART
II OF THE INTERSTATE COMMERCE ACT.  54 STAT. 919. 

APPELLANT FILED AN APPLICATION FOR A PERMIT AS A CONTRACT CARRIER
UNDER THE "GRANDFATHER" CLAUSE OF SEC. 209(A) OF THE ACT.  THAT SECTION
PROVIDES THAT IF THE CONTRACT CARRIER OR HIS PREDECESSOR IN INTEREST
"WAS IN BONA FIDE OPERATION AS A CONTRACT CARRIER BY MOTOR VEHICLE ON
JULY 1, 1935, OVER THE ROUTE OR ROUTES OR WITHIN THE TERRITORY FOR
WHICH APPLICATION IS MADE AND HAS SO OPERATED SINCE THAT TIME," HE
SHALL BE GRANTED A PERMIT WITHOUT MORE.  AND SEC. 209(B) PROVIDES THAT
THE COMMISSION "SHALL SPECIFY IN THE PERMIT THE BUSINESS OF THE
CONTRACT CARRIER COVERED THEREBY AND THE SCOPE THEREOF."  FN2 

THE COMMISSION FOUND THAT APPELLANT WAS NOT A COMMON CARRIER OF
GENERAL COMMODITIES BUT A CONTRACT CARRIER N3 OF SPECIFIED
COMMODITIES.  IT FOUND IN THAT CONNECTION THAT ON AND AFTER JULY 1,
1935, APPELLANT HAD BEEN "IN BONA FIDE OPERATION AS A CONTRACT CARRIER"
BY MOTOR VEHICLE "UNDER INDIVIDUAL CONTRACTS" WITH PERSONS WHO "OPERATE
FOOD CANNERIES OR MEAT-PACKING BUSINESSES, (A) OF CANNED FOODS FROM
BLUE ISLAND, ILL., TO ST. PAUL, SOUTH ST. PAUL, MINNEAPOLIS, AND
MINNESOTA TRANSFER, MINN., AND (B) OF FRESH MEATS, CANNED FOODS, DAIRY
PRODUCTS, AND PACKING-HOUSE PRODUCTS AND SUPPLIES, FROM SOUTH ST. PAUL
TO GRAND FORKS, N. DAK., CHICAGO AND ROCKFORD, ILL., AND POINTS IN THAT
PORTION OF WISCONSIN ON AND EAST OF THE MISSISSIPPI RIVER FROM THE
INTERSECTION OF THE WISCONSIN-ILLINOIS-IOWA STATE LINES NEAR DUBUQUE,
IOWA, TO LA CROSSE, WIS., AND U.S. HIGHWAY 53 FROM LA CROSSE TO
CAMERON, WIS., AND ON AND SOUTH OF U.S. HIGHWAY 8, AND (C) OF THE
COMMODITIES DESCRIBED IN (B) FROM CHICAGO TO ST. PAUL, MINNEAPOLIS,
SOUTH ST. PAUL, WINONA, AND ROCHESTER, MINN., AND LA CROSSE, WIS., OVER
IRREGULAR ROUTES;" 28 M.C.C. P. 660.  THE COMMISSION ACCORDINGLY FOUND
THAT APPELLANT WAS ENTITLED TO A PERMIT AUTHORIZING "THE CONTINUANCE OF
SUCH OPERATIONS." 

APPELLANT'S CHIEF OBJECTION TO THAT LIMITATION OF HIS RIGHTS UNDER
THE "GRANDFATHER" CLAUSE IS THAT THE COMMISSION HAS RESTRICTED THE
SHIPPERS OR TYPES OF SHIPPERS FOR WHOM HE MAY HAUL THE SPECIFIED
COMMODITIES.  HIS ARGUMENT COMES DOWN TO THIS:  ONCE THE TERRITORY
WHICH HE MAY SERVE AND THE COMMODITIES WHICH HE MAY HAUL HAVE BEEN
DETERMINED, HE SHOULD BE ALLOWED TO HAUL THESE COMMODITIES FOR ANY ONE
HE CHOOSES WITHIN THOSE TERRITORIAL LIMITS.  IN THE PRESENT CASE
APPELLANT HAULED UNDER CONTRACT MISCELLANEOUS SUPPLIES FOR SWIFT & CO.
SUCH AS GLUE, PAPER, BARRELS, SOAP, BOLTS, THERMOMETERS, ETC.  HIS
ARGUMENT ACCORDINGLY IS THAT HE SHOULD BE ALLOWED TO HAUL THE SAME
ITEMS FOR ANY OTHER PERSON IN THE TERRITORY, WHATEVER MAY BE THE
BUSINESS OF THAT PERSON AND IRRESPECTIVE OF THE FACT THAT APPELLANT HAD
NEVER HAD ANY CONTRACT OF CARRIAGE WITH HIM. 

THE COMMISSION AT ONE TIME SEEMS TO HAVE FOLLOWED THAT VIEW. 
LONGSHORE CONTRACT CARRIER APPLICATION, 2 M.C.C. 480, 481.  BUT IT NO
LONGER DOES.  KEYSTONE TRANSPORTATION CO. CONTRACT CARRIER APPLICATION,
19 M.C.C. 475.  IN THE LATTER CASE THE POWER AND DUTY OF THE COMMISSION
UNDER SEC. 209(B) TO SPECIFY IN THE PERMIT "THE BUSINESS OF THE
CONTRACT CARRIER COVERED THEREBY AND THE SCOPE THEREOF" WERE
REEXAMINED.  IT WAS HELD THAT THAT PHRASE MEANT "MORE THAN JUST THE
BUSINESS OF BEING A CONTRACT CARRIER WITHIN A DEFINED TERRITORY.  IT IS
ALL-INCLUSIVE AND CONNOTES IN ADDITION TO THE BUSINESS OF BEING A
CONTRACT CARRIER THE EXACT AND PRECISE CHARACTER OF THE SERVICE TO BE
RENDERED BY SUCH CARRIER."  19 M.C.C. 493. 

WE AGREE.  AN ACCURATE DESCRIPTION OF THE "BUSINESS" OF A PARTICULAR
CONTRACT CARRIER AND THE "SCOPE" OF THE ENTERPRISE MAY REQUIRE MORE
THAN A STATEMENT OF THE TERRITORY SERVED AND THE COMMODITIES HAULED. 
AN ACCURATE DEFINITION FREQUENTLY CAN BE MADE ONLY IN TERMS OF THE TYPE
OR CLASS OF SHIPPERS SERVED.  UNLESS THE WORDS OF THE ACT ARE GIVEN
THAT INTERPRETATION, PERMITS UNDER THE "GRANDFATHER" CLAUSE MAY GREATLY
DISTORT THE PRIOR ACTIVITIES OF THE CARRIER.  HE WHO WAS IN SUBSTANCE A
HIGHLY SPECIALIZED CARRIER FOR A SELECT FEW WOULD BE TREATED AS A
CARRIER OF GENERAL COMMODITIES FOR ALL COMERS, MERELY BECAUSE HE HAD
CARRIED A WIDE VARIETY OF ARTICLES.  THAT WOULD MAKE A BASIC ALTERATION
IN THE CHARACTERISTICS OF THE ENTERPRISE OF THE CONTRACT CARRIER - A
CHANGE AS FUNDAMENTAL AS WE THOUGHT WAS EFFECTED BY A DISREGARD OF THE
NATURE AND SCOPE OF THE HOLDING OUT OF THE COMMON CARRIER IN UNITED
STATES V. CAROLINA FREIGHT CARRIERS CORP., 315 U.S. 475.  IF THE
BUSINESS OF THE CONTRACT CARRIER WERE NOT DEFINED IN TERMS OF THE TYPE
OR CLASS OF SHIPPERS SERVED, THAT "SUBSTANTIAL PARITY BETWEEN FUTURE
OPERATIONS AND PRIOR BONA FIDE OPERATIONS" WHICH IS CONTEMPLATED BY THE
ACT (ALTON R. CO. V. UNITED STATES, 315 U.S. 15, 22) WOULD BE
FREQUENTLY DISREGARDED.  THE "GRANDFATHER" CLAUSE WOULD BE UTILIZED NOT
TO PRESERVE THE POSITION WHICH THE CARRIER HAD OBTAINED IN THE NATION'S
TRANSPORTATION SYSTEM, BUT TO ENLARGE AND EXPAND THE BUSINESS BEYOND
THE PATTERN WHICH IT HAD ACQUIRED PRIOR TO JULY 1, 1935.  THE RESULT IN
THE PRESENT CASE WOULD BE A CONVERSION, FOR ALL PRACTICAL PURPOSES, OF
THIS CONTRACT CARRIER INTO A COMMON CARRIER - A STEP WHICH WOULD TEND
TO NULLIFY A DISTINCTION WHICH CONGRESS HAS PRESERVED THROUGHOUT THE
ACT.  IF SUCH A METAMORPHOSIS IS TO BE EFFECTED OR IF THE APPELLANT IS
TO OBTAIN A PERMIT BROADER THAN THE ACTUAL SCOPE OF HIS ESTABLISHED
BUSINESS, THE SHOWING REQUIRED BY OTHER PROVISIONS OF THE ACT MUST BE
MADE.  SEE SEC. 206(A), SEC. 207, AND SEC. 209(B). 

SINCE THE COMMISSION DID NOT APPLY AN INCORRECT STANDARD IN DEFINING
THE NATURE OF APPELLANT'S BUSINESS AND ITS SCOPE,  FN4  OUR FUNCTION IS
AT AN END.  THE PRECISE DELINEATION OF AN ENTERPRISE WHICH SEEKS THE
PROTECTION OF THE "GRANDFATHER" CLAUSE HAS BEEN RESERVED FOR THE
COMMISSION.  UNITED STATES V. MAHER, 307 U.S. 148; ALTON R. CO. V.
UNITED STATES, SUPRA; UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP.,
SUPRA. 

WE HAVE CONSIDERED THE OTHER OBJECTIONS RAISED BY THE APPELLANT AND
FIND THEM WITHOUT MERIT.  AFFIRMED. 

FN1  SECS. 210 AND 238 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 47A, SEC.
345. 

FN2  SEC. 209(B) ALSO PROVIDES THAT THE COMMISSION SHALL ATTACH
CERTAIN TERMS, CONDITIONS AND LIMITATIONS TO THE PERMIT.  IT GOES ON TO
STATE, HOWEVER, THAT THOSE CONDITIONS SHALL NOT "RESTRICT THE RIGHT OF
THE CARRIER TO SUBSTITUTE OR ADD CONTRACTS WITHIN THE SCOPE OF THE
PERMIT, OR TO ADD TO HIS OR ITS EQUIPMENT AND FACILITIES, WITHIN THE
SCOPE OF THE PERMIT, AS THE DEVELOPMENT OF THE BUSINESS AND THE DEMANDS
OF THE PUBLIC MAY REQUIRE." 

FN3  THE TERM "CONTRACT CARRIER" IS DEFINED BY SEC. 203(A)(15) AS
"ANY PERSON WHICH, UNDER INDIVIDUAL CONTRACTS OR AGREEMENTS," ENGAGES
IN THE TRANSPORTATION BY MOTOR VEHICLE OF "PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE FOR COMPENSATION." 

FN4  WE DO NOT ACCEDE TO THE SUGGESTION THAT THE PERMIT SPECIFICATION
CLAUSE IN SEC. 209(B) IS APPLICABLE ONLY TO NEW OPERATORS, NOT TO
"GRANDFATHER" APPLICANTS.  THE COMMISSION HAS CONSISTENTLY TAKEN THE
VIEW THAT IT COVERS BOTH.  MOTOR CONVOY, INC., 2 M.C.C. 197, 200; WRAY
WIBLE, 7 M.C.C. 165, 168; JAMES P. HUNTER, 13 M.C.C. 109, 112-113;
MARINE TRUCKING CO., INC., 17 M.C.C. 615.  THAT INTERPRETATION IS
ENTITLED TO "GREAT WEIGHT."  UNITED STATES V. AMERICAN TRUCKING ASSNS.,
310 U.S. 534, 549.  IT IS CONSISTENT WITH THE WORDING OF SEC. 209. 
PARAGRAPH (A) REQUIRES A CONTRACT CARRIER TO HAVE A "PERMIT" IN ORDER
TO OPERATE AS SUCH; AND IT REQUIRES THE COMMISSION TO ISSUE THE PERMIT
"WITHOUT FURTHER PROCEEDINGS, IF APPLICATION FOR SUCH PERMIT IS MADE TO
THE COMMISSION AS PROVIDED IN PARAGRAPH (B)" WITHIN THE PRESCRIBED TIME
LIMITATION. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 
..END :






















CENTRAL HANOVER BANK CO. V. KELLY, 319 U.S. 94 


NO. 659.  ARGUED APRIL 12, 13, 1943.  - DECIDED MAY 3, 1943.  - 129
N.J.L. 127, 28 A.2D 174, AFFIRMED. 


1.  A GRANTOR DOMICILED IN NEW JERSEY MADE IN NEW YORK IN 1929 A
TRANSFER OF SECURITIES.  THE TRANSFER WAS IN TRUST, AND IRREVOCABLE, TO
PAY THE INCOME TO THE GRANTOR FOR LIFE, THEN TO HIS WIFE FOR LIFE IF
SHE SURVIVED HIM; IF SHE PREDECEASED HIM, THE PRINCIPAL WAS TO GO TO
TWO SONS, NONRESIDENTS OF NEW JERSEY.  THE WIFE PREDECEASED, AND THE
SONS SURVIVED, THE GRANTOR, WHO IN 1936 DIED DOMICILED IN NEW JERSEY. 
THE SECURITIES WERE AT ALL TIMES KEPT IN NEW YORK AND THERE
ADMINISTERED BY THE TRUSTEE.  HELD, A NEW JERSEY TAX UPON THE TRANSFER,
MEASURED BY THE VALUE OF THE SECURITIES AT THE TIME OF THE GRANTOR'S
DEATH, DID NOT VIOLATE THE DUE PROCESS OR EQUAL PROTECTION CLAUSES OF
THE FOURTEENTH AMENDMENT.  P. 96. 

2.  THE DETERMINATION BY THE NEW JERSEY COURTS, IN APPLYING THE TAX
STATUTE OF THAT STATE, OF THE KIND OF INTEREST TRANSFERRED AND THE TIME
WHEN IT WAS EFFECTED, IS A MATTER OF LOCAL LAW AND IS BINDING HERE.  P.
97. 

CENTRAL HANOVER BANK & TRUST CO. ET AL. V. KELLY, STATE TAX
COMMISSIONER. 

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

APPEAL FROM A JUDGMENT SUSTAINING THE IMPOSITION OF A STATE TAX UPON
A TRANSFER OF PROPERTY IN TRUST. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

NEW JERSEY IMPOSES A TAX, WITH EXCEPTIONS NOT MATERIAL HERE, "UPON
THE TRANSFER OF ANY PROPERTY, REAL OR PERSONAL, OF THE VALUE OF FIVE
HUNDRED DOLLARS ($500.00) OR OVER, OR OF ANY INTEREST THEREIN OR INCOME
THEREFROM, IN TRUST OR OTHERWISE, TO PERSONS OR CORPORATIONS,  ...  IN
THE FOLLOWING CASES  ...  THIRD.  WHEN THE TRANSFER IS OF PROPERTY  FN1
MADE BY A RESIDENT  ...  BY DEED, GRANT, BARGAIN, SALE OR GIFT MADE IN
CONTEMPLATION OF THE DEATH OF THE GRANTOR, VENDOR OR DONOR, OR INTENDED
TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER SUCH DEATH." 
LAWS OF 1935, C. 90, PP. 264-265.  AND SEE REV. STAT. 1937, SEC. 54:
34-1. 

PRIOR TO 1929 DECEDENT, WHO AT ALL TIMES RELEVANT HERE WAS A RESIDENT
OF NEW JERSEY, OWNED CERTAIN SECURITIES WHICH HE KEPT IN NEW YORK CITY
IN SAFEKEEPING WITH THE APPELLANT TRUST COMPANY, A NEW YORK
CORPORATION.  IN 1929 HE WENT TO NEW YORK CITY AND EXECUTED A TRUST
AGREEMENT BY WHICH HE TRANSFERRED THOSE SECURITIES TO THE APPELLANT
CORPORATION AS TRUSTEE.  THE TRUST DEED WAS AN IRREVOCABLE AGREEMENT
UNDER WHICH HE RETAINED NO CONTROL OVER THE PROPERTY.  IT CONTAINED A
PROVISION THAT IT WAS TO BE CONSTRUED ACCORDING TO THE LAWS OF NEW YORK
WHERE IT WAS MADE AND WHERE IT WAS TO BE ENFORCED.  IT PROVIDED THAT
THE TRUSTEE SHOULD PAY THE NET INCOME TO THE GRANTOR DURING HIS LIFE
AND THEREAFTER TO HIS WIFE FOR LIFE IN CASE SHE SURVIVED HIM.  IN THE
EVENT THAT THE GRANTOR'S WIFE DID NOT SURVIVE HIM AND HIS TWO SONS DID,
THEN THE TRUSTEE WAS TO TRANSFER TO EACH SON ONE-HALF OF THE
PRINCIPAL.  THE WIFE PREDECEASED THE GRANTOR, WHO DIED IN 1936 A
RESIDENT OF NEW JERSEY.  BOTH SONS SURVIVED HIM.  THEY WERE
NONRESIDENTS OF NEW JERSEY.  THE SECURITIES WERE AT ALL TIMES KEPT IN
NEW YORK AND THERE ADMINISTERED BY THE TRUSTEE.  FN2 

THE NEW JERSEY PREROGATIVE COURT HELD ON AN APPEAL FROM THE TAX
COMMISSIONER THAT THE CREATION OF THE SO-CALLED EQUITABLE CONTINGENT
REMAINDERS IN THE SONS WAS A "TRANSFER" OF AN INTEREST IN THE PROPERTY
BY DEED WITHIN THE MEANING OF THE STATUTE AT A TIME WHEN THE GRANTOR
WAS DOMICILED IN NEW JERSEY; FN3  THAT THAT TRANSFER WAS MADE IN
CONTEMPLATION OF THE GRANTOR'S DEATH AND INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT OR AFTER HIS DEATH; AND THAT IT WAS THAT
TRANSFER RATHER THAN THE PROPERTY ON WHICH THE TAX WAS LAID.  IT
ACCORDINGLY UPHELD THE ASSESSMENT OF THE COMMISSIONER AGAINST THE
CONTENTION OF APPELLANTS THAT THE STATUTE AS CONSTRUED AND APPLIED
VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT.  129 N.J. EQ. 186, 18 A.2D 45.  BOTH THE SUPREME COURT AND
THE COURT OF ERRORS AND APPEALS OF NEW JERSEY AFFIRMED.  SEE 127 N.J.L.
468, 23 A.2D 284; 129 N.J.L. 127, 28 A.2D 174.  THE CASE IS HERE ON
APPEAL.  SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 344(A). 

IT IS MUCH TOO LATE TO CONTEND THAT DOMICILE ALONE IS INSUFFICIENT TO
GIVE THE DOMICILIARY STATE THE CONSTITUTIONAL POWER TO TAX A TRANSFER
OF INTANGIBLES WHERE THE OWNER, THOUGH DOMICILED WITHIN THE STATE,
KEEPS THE PAPER EVIDENCES OF THE INTANGIBLES OUTSIDE ITS BOUNDARIES. 
SEE BLACKSTONE V. MILLER, 188 U.S. 189; BLODGETT V. SILBERMAN, 277 U.S.
1; CURRY V. MCCANLESS, 307 U.S. 357, AND CASES CITED.  THE COMMAND OF
THE STATE OVER THE OWNER, THE OBLIGATIONS WHICH DOMICILE CREATES, THE
PRACTICAL NECESSITY OF ASSOCIATING INTANGIBLES WITH THE PERSON OF THE
OWNER AT HIS DOMICILE SINCE THEY REPRESENT ONLY RIGHTS WHICH HE MAY
ENFORCE AGAINST OTHERS - THESE ARE THE FOUNDATION FOR THE JURISDICTION
OF THE DOMICILIARY STATE TO TAX.  CURRY V. MCCANLESS, SUPRA.  WE
RECENTLY APPLIED THAT PRINCIPLE TO SUSTAIN, ON FACTS VERY CLOSE TO THE
PRESENT ONES, OREGON'S POWER TO TAX A TRANSFER OF INTANGIBLES HELD IN
ILLINOIS BY ONE DOMICILED IN OREGON.  PEARSON V. MCGRAW, 308 U.S. 313. 
AND SEE VAN DYKE V. TAX COMMISSION, 235 WIS. 128, 292 N.W. 313, AFF'D
311 U.S. 605.  THE EXECUTION OF THE PRESENT TRUST AGREEMENT IN NEW
YORK, THE CIRCUMSTANCE THAT THE REMAINDERMEN AS WELL AS THE TRUSTEE
WERE NON-RESIDENTS OF THE TAXING STATE ARE QUITE IMMATERIAL.  DOMICILE
IS THE SINGLE CONTROLLING CONSIDERATION IN THIS SITUATION, AS IT IS IN
THE CASE OF THE TAXATION OF INCOME DERIVED FROM ACTIVITIES OUTSIDE THE
STATE.  LAWRENCE V. STATE TAX COMMISSION, 286 U.S. 276, 279; NEW YORK
EX REL. COHN V. GRAVES, 300 U.S. 308. 

APPELLANTS CONTEND, HOWEVER, THAT AT THE TIME OF THE EXECUTION OF THE
TRUST AGREEMENT THERE WAS NO TAXABLE TRANSFER TO THE SONS; THAT THEIR
INTERESTS WERE WHOLLY SPECULATIVE AND CONTINGENT AND DID NOT BECOME
TAXABLE UNTIL THEY BECAME VESTED INTERESTS; AND THAT NEW JERSEY HAS NOT
LEVIED A TAX ACCORDING TO THE QUALITY AND VALUE OF THE INTERESTS AS
THEY EXISTED IN 1929 BUT HAS APPRAISED THE PROPERTY AT ITS VALUE AT THE
TIME OF THE GRANTOR'S DEATH.  THEY ALSO ARGUE THAT IF THE TRUST
AGREEMENT BE CONSTRUED TO TRANSFER AN INTEREST TO THE SONS ONLY AT THE
GRANTOR'S DEATH, IT WAS A TRANSFER WHICH NEW JERSEY COULD NOT TAX. 

THE DETERMINATION BY THE NEW JERSEY COURTS OF THE KIND OF INTEREST
TRANSFERRED AND THE TIME WHEN IT WAS EFFECTED IS A MATTER OF LOCAL LAW
BINDING ON US.  ORR V. GILMAN, 183 U.S. 278, 288; CHANLER V. KELSEY,
205 U.S. 466, 476; NICKEL V. COLE, 256 U.S. 222, 225-226; SALTONSTALL
V. SALTONSTALL, 276 U.S. 260, 270.  THERE IS NO CONSTITUTIONAL REASON
WHY A STATE MAY NOT MAKE THE TRANSFER INTER VIVOS THE TAXABLE EVENT AND
THEN MEASURE THE TAX BY THE VALUE OF THE PROPERTY AT TIME OF DEATH. 
KEENEY V. NEW YORK, 222 U.S. 525.  CF. MILLIKEN V. UNITED STATES, 283
U.S. 15, 20, 22, 23; HELVERING V. HALLOCK, 309 U.S. 106, 111; PAUL,
FEDERAL ESTATE AND GIFT TAXATION (1942) SEC. 2.13.  A STATE WHICH MAY
TAX THE DISPOSITION OF PROPERTY MADE BY ONE OF ITS DOMICILIARIES
CERTAINLY MAY MAKE THE PAYMENT OF THE TAX CONDITIONAL ON HIS BEING
DOMICILED IN THE STATE AT HIS DEATH, AND MAY DELAY PAYMENT UNTIL THEN. 
THE FACT THAT THE TAXABLE EVENT AND THE TAX LEVY ARE WIDELY SEPARATED
IN TIME IS QUITE IRRELEVANT.  IN SHORT, "THE DUE PROCESS CLAUSE PLACES
NO RESTRICTION ON A STATE AS TO THE TIME AT WHICH AN INHERITANCE TAX
SHALL BE LEVIED OR THE PROPERTY VALUED FOR PURPOSES OF SUCH TAX." 
SALOMON V. STATE TAX COMMISSION, 278 U.S. 484, 490.  AND IF THE
TRANSFER TO THE SONS IS ASSUMED TO HAVE TAKEN PLACE ONLY AT THE TIME OF
THE GRANTOR'S DEATH, THERE IS NO CONSTITUTIONAL REASON WHY THE RESULT
NEED BE DIFFERENT.  THE FACT THAT HE DID NOT THEN "OWN" THE PROPERTY IS
INCONSEQUENTIAL.  CF. WHITNEY V. STATE TAX COMMISSION, 309 U.S. 530. 
THE SIGNIFICANT FACTS ARE THAT THE RIGHTS OF THE REMAINDERMEN DERIVED
SOLELY FROM THE TRUST AGREEMENT AND THAT THE GRANTOR DIED DOMICILED IN
NEW JERSEY.  AFFIRMED. 

FN1  THE STATUTE EMBRACES THE TRANSFER OF PROPERTY "WHETHER SUCH
PROPERTY BE SITUATED WITHIN OR WITHOUT THIS STATE."  REV. STAT. 1937,
SEC. 54:  33-1.  THE WORD "TRANSFER" IS DEFINED SO AS TO INCLUDE "THE
PASSING OF PROPERTY, OR ANY INTEREST THEREIN, IN POSSESSION OR
ENJOYMENT, PRESENT OR FUTURE" BY DEED.  ID. 

FN2  ART. XVI, SEC. 3 OF THE CONSTITUTION OF THE STATE OF NEW YORK
PROVIDES:  "MONEYS, CREDITS, SECURITIES AND OTHER INTANGIBLE PERSONAL
PROPERTY WITHIN THE STATE NOT EMPLOYED IN CARRYING ON ANY BUSINESS
THEREIN BY THE OWNER SHALL BE DEEMED TO BE LOCATED AT THE DOMICILE OF
THE OWNER FOR PURPOSE OF TAXATION, AND, IF HELD IN TRUST, SHALL NOT BE
DEEMED TO BE LOCATED IN THIS STATE FOR PURPOSES OF TAXATION BECAUSE OF
THE TRUSTEE BEING DOMICILED IN THIS STATE, PROVIDED THAT IF NO OTHER
STATE HAS JURISDICTION TO SUBJECT SUCH PROPERTY HELD IN TRUST TO DEATH
TAXATION, IT MAY BE DEEMED PROPERTY HAVING A TAXABLE SITUS WITHIN THIS
STATE FOR PURPOSES OF DEATH TAXATION." 

FN3  THE COURT HELD, IN THE ALTERNATIVE, THAT THERE WAS A TAXABLE
TRANSFER UNDER THE STATUTE EVEN IF IT BE ASSUMED THAT THE REMAINDER WAS
VESTED IN THE GRANTOR UNTIL THE HAPPENING OF THE CONTINGENCY.  UNDER
THAT VIEW, THERE WAS NO TRANSFER UNTIL THE ACTUAL VESTING AT HIS
DEATH.  YET AT THAT TIME HE WAS DOMICILED IN NEW JERSEY.  SO THE
TRANSFER WAS TAXABLE.  129 N.J. EQ. PP. 212-213. 
..END :
























DETROIT EDISON CO. V. COMM'R, 319 U.S. 98 


NO. 675.  ARGUED APRIL 13, 1943.  - DECIDED MAY 3, 1943.  - 131 F.2D
619, AFFIRMED. 


1.  UNDER SEC. 23(1) OF THE REVENUE ACT OF 1936, AN ELECTRIC POWER
COMPANY IS NOT ENTITLED TO A DEDUCTION ON ACCOUNT OF DEPRECIATION IN
RESPECT OF THE COST OF EXTENSIONS OF ITS FACILITIES, TO THE EXTENT THAT
SUCH COST WAS BORNE BY CUSTOMERS WHOSE PAYMENTS TO THE COMPANY THEREFOR
WERE NOT REFUNDED NOR REFUNDABLE.  P. 102. 

2.  SECTIONS 113(A)(2) AND (8)(B) OF THE REVENUE ACT OF 1936 ARE
INAPPLICABLE, SINCE THE CUSTOMERS' PAYMENTS IN QUESTION WERE NEITHER
"GIFTS" NOR "CONTRIBUTIONS" TO THE COMPANY.  P. 102. 

DETROIT EDISON CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 318 U.S. 749, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 45 B.T.A. 358, WHICH SUSTAINED THE
COMMISSIONER'S DETERMINATION OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, THE DETROIT EDISON COMPANY, ENGAGES IN THE GENERATION
OF ELECTRIC ENERGY AND ITS DISTRIBUTION TO THE PUBLIC IN AND NEAR
DETROIT.  IT RECEIVES MANY APPLICATIONS FOR SERVICE WHICH IN ITS
OPINION WOULD REQUIRE AN INVESTMENT IN EXTENSION OF ITS FACILITIES
GREATER THAN PROSPECTIVE REVENUES THEREFROM WOULD WARRANT.  IN SUCH
CASES IT UNDERTAKES TO RENDER THE SERVICE IF THE APPLICANT WILL PAY THE
ESTIMATED COST OF THE NECESSARY CONSTRUCTION.  THIS IS DONE BY CONTRACT
OF WHICH THERE ARE FIVE VARIATIONS, SOME OF WHICH PROVIDE FOR REFUNDS
OF PART OF THE CUSTOMERS' COST IF ADDITIONAL CUSTOMERS COME IN TO SHARE
IT, OR IF REVENUES EXCEED ESTIMATES.  WITH THESE PROVISIONS WE ARE NOT
CONCERNED, SINCE THE CONTROVERSY HERE RELATES ONLY TO PAYMENTS THAT
NEVER WERE, OR WHICH BY THE CONTRACTS HAVE CEASED TO BE, REFUNDABLE. 
THE AMOUNTS OF THE CUSTOMERS' PAYMENTS ARE FIXED BY AN ESTIMATE OF THE
COST; THEY NEVER EXCEED, AND SOMETIMES FALL SHORT OF ACTUAL COST, BUT
ARE NOT ADJUSTED BECAUSE OF THE DIFFERENCE BETWEEN ESTIMATES AND
REALIZATION. 

THE COMPANY CONSTRUCTS THE FACILITIES, WHICH BECOME ITS PROPERTY, AND
ADDS THE FULL COST TO ITS APPROPRIATE PROPERTY ACCOUNTS WITHOUT
DEDUCTION FOR THE CUSTOMER PAYMENT.  IT CLAIMS AS A BASE FOR COMPUTING
ITS DEPRECIATION THE INVESTMENT FOR WHICH THE COMPANY IS THEN
REIMBURSED.  CUSTOMERS' PAYMENTS ARE NOT APPROPRIATED TO THE PARTICULAR
CONSTRUCTION NOR EARMARKED FOR IT, BUT GO INTO THE COMPANY'S GENERAL
WORKING FUNDS.  DURING THE PERIOD THAT A PAYMENT IS SUBJECT TO REFUND
IT IS CARRIED IN A SUSPENSE ACCOUNT; BUT IF IT IS NOT SUBJECT TO
REFUND, OR WHEN THE REFUND PERIOD IS PAST, THE UNREFUNDED AND
UNREFUNDABLE BALANCES ARE TRANSFERRED TO SURPLUS THROUGH AN ACCOUNT
DESIGNATED AS "CONTRIBUTIONS FOR EXTENSIONS." 

DURING 1936 AND 1937, THE YEARS IN QUESTION, THE COMPANY ADDED TO ITS
SURPLUS FROM SUCH SOURCES $36,065.81 AND $47,500.67 RESPECTIVELY.  THE
COMMISSIONER ELIMINATED FROM THE DEPRECIABLE PROPERTY OF THE COMPANY
THAT PORTION OF THE COST EQUIVALENT TO THE UNREFUNDED AND UNREFUNDABLE
BALANCES OF THE DEPOSITS.  THESE ELIMINATIONS, AMOUNTING TO UPWARDS OF
$1,160,000 IN EACH YEAR, RESULTED IN DISALLOWING DEPRECIATION
DEDUCTIONS FROM INCOME OF $40,273.11 FOR 1936 AND $41,786.26 FOR 1937,
AND IN DEFICIENCIES WHICH THE COMPANY CONTESTED.  THE BOARD OF TAX
APPEALS SUSTAINED THE COMMISSIONER AND THE CIRCUIT COURT OF APPEALS
AFFIRMED.  FN1  BECAUSE THE DECISION APPEARED TO CONFLICT WITH
PRINCIPLES FOLLOWED IN ANOTHER CIRCUIT,  FN2  WE GRANTED CERTIORARI. 

A DEDUCTION FROM GROSS INCOME ON ACCOUNT OF DEPRECIATION IS PERMITTED
BY SEC. 23(1) OF THE APPLICABLE REVENUE ACT IN THESE TERMS:  "A
REASONABLE ALLOWANCE FOR THE EXHAUSTION, WEAR AND TEAR OF PROPERTY USED
IN THE TRADE OR BUSINESS, INCLUDING A REASONABLE ALLOWANCE FOR
OBSOLESCENCE."  FN3  FOR THE BASIS WE ARE REFERRED BY SEC. 23(N) TO
SEC. 114 OF THE ACT WHICH REFERS US AGAIN TO SEC. 113(B) THEREOF WHICH
PROVIDES AN "ADJUSTED BASIS" FOR GAIN OR LOSS BUT WHICH AGAIN REFERS US
TO SEC. 113(A) FOR THE BASIS UPON WHICH ADJUSTMENT IS TO BE MADE.  THE
SUM OF THESE IS THAT THE BASIS OF DEPRECIATION ALLOWANCE "SHALL BE THE
COST OF SUCH PROPERTY" (SEC. 113(A)) MAKING "PROPER ADJUSTMENT" IN
RESPECT OF THE PROPERTY "FOR EXPENDITURES, RECEIPTS, LOSSES, OR OTHER
ITEMS, PROPERLY CHARGEABLE TO CAPITAL ACCOUNT," (SEC. 113(B)(1)(A))
EXCEPT IN CASE OF CERTAIN GIFTS, TRANSFERS AS PAID-IN SURPLUS, OR
CONTRIBUTIONS TO CAPITAL (SEC. 113(A)(2), (8)(B)), WHICH EXCEPTIONS WE
WILL LATER CONSIDER. 

IT WILL BE SEEN THAT THE RULE APPLICABLE TO MOST BUSINESS PROPERTY OF
A COST BASIS PROPERLY ADJUSTED LEAVES MANY PROBLEMS OF DEPRECIATION
ACCOUNTING TO BE ANSWERED BY SOUND AND FAIR TAX ADMINISTRATION.  THE
END AND PURPOSE OF IT ALL IS TO APPROXIMATE AND REFLECT THE FINANCIAL
CONSEQUENCES TO THE TAXPAYER OF THE SUBTLE EFFECTS OF TIME AND USE ON
THE VALUE OF HIS CAPITAL ASSETS.  FOR THIS PURPOSE IT IS SOUND
ACCOUNTING PRACTICE ANNUALLY TO ACCRUE AS TO EACH CLASSIFICATION OF
DEPRECIABLE PROPERTY AN AMOUNT WHICH AT THE TIME IT IS RETIRED WILL
WITH ITS SALVAGE VALUE REPLACE THE ORIGINAL INVESTMENT THEREIN.  OR AS
A LAYMAN MIGHT PUT IT, THE MACHINE IN ITS LIFE TIME MUST PAY FOR ITSELF
BEFORE IT CAN BE SAID TO PAY ANYTHING TO ITS OWNER.  EXPERIENCE AND
JUDGMENT HIT UPON USABLE MORTALITY TABLES FOR CLASSES OF PROPERTY FROM
WHICH ANNUAL RATES OF ACCRUAL ARE ESTIMATED AND SEVERAL DIFFERENT
METHODS ARE EMPLOYED FOR RELATING THIS PHYSICAL DETERIORATION AND
FUNCTIONAL OBSOLESCENCE TO FINANCIAL STATEMENTS.  THE CALCULATION IS
INFLUENCED BY TOO MANY VARIABLES TO BE STANDARDIZED FOR DIFFERING
ENTERPRISES, ASSETS, CONDITIONS, OR METHODS OF BUSINESS.  THE CONGRESS
WISELY REFRAINED FROM FORMALIZING ITS METHODS AND WE PRESCRIBE NO OVER
ALL RULES. 

BUT WE THINK THE STATUTORY PROVISION THAT THE "BASIS OF PROPERTY
SHALL BE THE COST OF SUCH PROPERTY" (SEC. 113(A)) NORMALLY MEANS, AND
THAT IN THIS CASE THE COMMISSIONER WAS JUSTIFIED IN APPLYING IT TO
MEAN, COST TO THE TAXPAYER.  A PROPERTY MAY HAVE A COST HISTORY QUITE
DIFFERENT FROM ITS COST TO THE TAXPAYER.  IT MAY HAVE BEEN PURCHASED
FOR LESS OR MORE THAN ORIGINAL COST, OR BUILT BY CONTRACT WHICH CALLED
FOR PAYMENTS ON WHICH THE BUILDER PROFITED GREATLY OR SUFFERED HEAVY
LOSS.  BUT GENERALLY AND IN THIS CASE THE COMMISSIONER WAS IN NO ERROR
IN RULING THAT THE TAXPAYER'S OUTLAY IS THE MEASURE OF HIS RECOUPMENT
THROUGH DEPRECIATION ACCRUALS. 

IF THIS WERE OTHERWISE IN DOUBT IT WOULD BE MADE CLEAR BY THE
PROVISIONS FOR "PROPER ADJUSTMENT" OF COST FOR RECEIPTS PROPERLY
CHARGEABLE TO CAPITAL ACCOUNT FOUND IN SEC. 113(B)(1)(A).  THE CUSTOMER
PAYMENTS SO FAR AS IN QUESTION FOUND THEIR WAY INTO THE COMPANY'S
CAPITAL ACCOUNTS BY WAY OF AN ADDITION TO SURPLUS.  THEIR
INTERDEPENDENCY WITH THE INCREASES IN PROPERTY ACCOUNTS CAUSED BY THE
CONSTRUCTION THEY INDUCED JUSTIFIED THE COMMISSIONER IN RELATING THE
ONE TO THE OTHER FOR THE PURPOSE OF ADJUSTING THE BASIS FOR
DEPRECIATION. 

THE COMPANY, HOWEVER, SEEKS TO AVOID THIS RESULT BY THE CONTENTION
THAT WHAT IT HAS OBTAINED ARE GIFTS TO IT OR CONTRIBUTIONS TO ITS
CAPITAL OF THE PROPERTY PAID FOR BY THE CUSTOMER, AND THAT THEREFORE BY
THE PROVISIONS OF SEC. 113(A)(2) AND (8)(B) IT TAKES THE BASIS OF THE
DONOR OR TRANSFEROR.  IT IS ENOUGH TO SAY THAT IT OVERTAXES IMAGINATION
TO REGARD THE FARMERS AND OTHER CUSTOMERS WHO FURNISHED THESE FUNDS AS
MAKERS EITHER OF DONATIONS OR CONTRIBUTIONS TO THE COMPANY.  THE
TRANSACTION NEITHER IN FORM NOR IN SUBSTANCE BORE SUCH A SEMBLANCE. 

THE PAYMENTS WERE TO THE CUSTOMER THE PRICE OF THE SERVICE.  THE
RECEIPTS HAVE GONE, SO FAR AS HERE INVOLVED, TO ADD TO THE COMPANY'S
SURPLUS.  THEY HAVE NOT BEEN TAXED AS INCOME, PRESUMABLY BECAUSE IT HAS
BEEN THOUGHT TO BE PRECLUDED BY THIS COURT'S DECISIONS IN EDWARDS V.
CUBA R. CO., 268 U.S. 628, HOLDING THAT UNDER THE CIRCUMSTANCES OF THAT
CASE A GOVERNMENT SUBSIDY TO INDUCE RAILROAD CONSTRUCTION WAS NOT
INCOME.  BUT IT DOES NOT FOLLOW THAT THE COMPANY MUST BE PERMITTED TO
RECOUP THROUGH UNTAXED DEPRECIATION ACCRUALS ON INVESTMENT IT HAS
REFUSED TO MAKE.  THE COMMISSIONER WAS WARRANTED IN ADJUSTING THE
DEPRECIATION BASE TO REPRESENT THE TAXPAYER'S NET INVESTMENT.  NOTHING
IN THE REGULATIONS IS TO THE CONTRARY AND NOTHING IN HELVERING V.
AMERICAN DENTAL CO., 318 U.S. 322, WHEN READ IN THE CONTEXT OF ITS
FACTS TOUCHES THIS PROBLEM AT ALL.  AFFIRMED. 

FN1  45 B.T.A. 358; 131 F.2D 619. 

FN2  ARUNDEL-BROOKS CONCRETE CORP. V. COMMISSIONER, 129 F.2D
762(C.C.A.4TH). 

FN3  REVENUE ACT OF 1936, 49 STAT. 1648. 

THE CHIEF JUSTICE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :






JONES V. OPELIKA, 319 U.S. 103 


NO. 280, OCTOBER TERM, 1941.  REARGUED MARCH 10, 11, 1943.  - DECIDED
MAY 3, 1943.  - 242 ALA. 549, 7 SO.2D 503, REVERSED.  - 202 ARK. 614,
151 S.W.2D 1000, REVERSED.  - 58 ARIZ. 144, 118 P.2D 97, REVERSED. 


UPON REHEARING, 318 U.S. 796, THE JUDGMENTS HERETOFORE ENTERED IN
THESE CASES, 316 U.S. 584, AFFIRMING THE JUDGMENTS OF THE STATE COURTS,
ARE VACATED, AND THE JUDGMENTS OF THE STATE COURTS ARE REVERSED.  P.
104. 

JONES V. OPELIKA* . 

*TOGETHER WITH NO. 314, OCTOBER TERM, 1941, BOWDEN ET AL. V. FORT
SMITH, ON WRIT OF CERTIORARI, 315 U.S. 793, TO THE SUPREME COURT OF
ARKANSAS, AND NO. 966, OCTOBER TERM, 1941, JOBIN V. ARIZONA, ON APPEAL
FROM THE SUPREME COURT OF ARIZONA. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

PER CURIAM (ANNOUNCED BY MR. JUSTICE DOUGLAS): 

THE JUDGMENTS IN THESE CASES WERE AFFIRMED AT THE OCTOBER TERM,
1941.  316 U.S. 584.  BECAUSE THE ISSUES IN ALL THREE CASES WERE OF THE
SAME CHARACTER AS THOSE BROUGHT BEFORE US IN OTHER CASES BY
APPLICATIONS FOR CERTIORARI AT THE PRESENT TERM, WE ORDERED A
REARGUMENT AND HEARD THESE CASES TOGETHER WITH MURDOCK V. PENNSYLVANIA,
POST, P. 105.  FOR THE REASONS STATED IN THE OPINION OF THE COURT IN
THE MURDOCK CASE, AND IN THE DISSENTING OPINIONS FILED IN THE PRESENT
CASES AFTER THE ARGUMENT LAST TERM, THE COURT IS OF OPINION THAT THE
JUDGMENT IN EACH CASE SHOULD BE REVERSED.  THE JUDGMENTS OF THIS COURT
HERETOFORE ENTERED IN THESE CASES ARE THEREFORE VACATED, AND THE
JUDGMENTS OF THE STATE COURTS ARE REVERSED.  SO ORDERED. 

FOR DISSENTING OPINIONS, SEE POST, PP. 117-140. 
..END :
















MURDOCK V. PENNSYLVANIA, 319 U.S. 105 


NO. 480.  ARGUED MARCH 10, 11, 1943.  - DECIDED MAY 3, 1943.  - 149 PA.
SUPER.  175, 27 A.2D 666, REVERSED. 


1.  A MUNICIPAL ORDINANCE WHICH, AS CONSTRUED AND APPLIED, REQUIRES
RELIGIOUS COLPORTEURS TO PAY A LICENSE TAX AS A CONDITION TO THE
PURSUIT OF THEIR ACTIVITIES, IS INVALID UNDER THE FEDERAL CONSTITUTION
AS A DENIAL OF FREEDOM OF SPEECH, PRESS AND RELIGION.  PP. 108-110. 

2.  THE MERE FACT THAT THE RELIGIOUS LITERATURE IS "SOLD" RATHER THAN
"DONATED" DOES NOT TRANSFORM THE ACTIVITIES OF THE COLPORTEUR INTO A
COMMERCIAL ENTERPRISE.  P. 111. 

3.  UPON THE RECORD IN THESE CASES, IT CAN NOT BE SAID THAT
"JEHOVAH'S WITNESSES" WERE ENGAGED IN A COMMERCIAL RATHER THAN IN A
RELIGIOUS VENTURE.  P. 111. 

4.  A STATE MAY NOT IMPOSE A CHARGE FOR THE ENJOYMENT OF A RIGHT
GRANTED BY THE FEDERAL CONSTITUTION.  P. 113. 

5.  THE FLAT LICENSE TAX HERE INVOLVED RESTRAINS IN ADVANCE THE
CONSTITUTIONAL LIBERTIES OF PRESS AND RELIGION AND INEVITABLY TENDS TO
SUPPRESS THEIR EXERCISE.  P. 114. 

6.  THAT THE ORDINANCE IS "NONDISCRIMINATORY," IN THAT IT APPLIES
ALSO TO PEDDLERS OF WARES AND MERCHANDISE, IS IMMATERIAL.  THE
LIBERTIES GUARANTEED BY THE FIRST AMENDMENT ARE IN A PREFERRED
POSITION.  P. 115. 

7.  SINCE THE PRIVILEGE IN QUESTION IS GUARANTEED BY THE FEDERAL
CONSTITUTION AND EXISTS INDEPENDENTLY OF STATE AUTHORITY, THE INQUIRY
AS TO WHETHER THE STATE HAS GIVEN SOMETHING FOR WHICH IT CAN ASK A
RETURN IS IRRELEVANT.  P. 115. 

8.  A COMMUNITY MAY NOT SUPPRESS, OR THE STATE TAX, THE DISSEMINATION
OF VIEWS BECAUSE THEY ARE UNPOPULAR, ANNOYING, OR DISTASTEFUL.  P.
116. 

9.  THE ASSUMPTION THAT THE ORDINANCE HAS BEEN CONSTRUED TO APPLY
ONLY TO SOLICITATION FROM HOUSE TO HOUSE CAN NOT SUSTAIN IT, SINCE IT
IS NOT NARROWLY DRAWN TO PREVENT OR CONTROL ABUSES OR EVILS ARISING
FROM THAT PARTICULAR TYPE OF ACTIVITY.  P. 117. 

MURDOCK V. PENNSYLVANIA (CITY OF JEANNETTE)*  . 

*TOGETHER WITH NO. 481, PERISICH V. PENNSYLVANIA (CITY OF JEANNETTE),
NO. 482, MOWDER V. PENNSYLVANIA (CITY OF JEANNETTE), NO. 483, SEDERS V.
PENNSYLVANIA (CITY OF JEANNETTE), NO. 484, LAMBORN V. PENNSYLVANIA
(CITY OF JEANNETTE), NO. 485, MALTEZOS V. PENNSYLVANIA (CITY OF
JEANNETTE), NO. 486, ANASTASIA TZANES V. PENNSYLVANIA (CITY OF
JEANNETTE), AND NO. 487, ELLAINE TZANES V. PENNSYLVANIA (CITY OF
JEANNETTE), ALSO ON WRITS OF CERTIORARI, 318 U.S. 748, TO THE SUPERIOR
COURT OF PENNSYLVANIA. 

CERTIORARI TO THE SUPERIOR COURT OF PENNSYLVANIA. 

CERTIORARI, 318 U.S. 748, TO REVIEW AFFIRMANCES OF ORDERS IN EIGHT
CASES REFUSING TO ALLOW APPEALS FROM JUDGMENTS AND SENTENCES FOR
VIOLATIONS OF A MUNICIPAL ORDINANCE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE CITY OF JEANNETTE, PENNSYLVANIA, HAS AN ORDINANCE, SOME FORTY
YEARS OLD, WHICH PROVIDES IN PART: 

"THAT ALL PERSONS CANVASSING FOR OR SOLICITING WITHIN SAID BOROUGH,
ORDERS FOR GOODS, PAINTINGS, PICTURES, WARES, OR MERCHANDISE OF ANY
KIND, OR PERSONS DELIVERING SUCH ARTICLES UNDER ORDERS SO OBTAINED OR
SOLICITED, SHALL BE REQUIRED TO PROCURE FROM THE BURGESS A LICENSE TO
TRANSACT SAID BUSINESS AND SHALL PAY TO THE TREASURER OF SAID BOROUGH
THEREFORE THE FOLLOWING SUMS ACCORDING TO THE TIME FOR WHICH SAID
LICENSE SHALL BE GRANTED. 

"FOR ONE DAY $1.50, FOR ONE WEEK SEVEN DOLLARS ($7.00), FOR TWO WEEKS
TWELVE DOLLARS ($12.00), FOR THREE WEEKS TWENTY DOLLARS ($20.00),
PROVIDED THAT THE PROVISIONS OF THIS ORDINANCE SHALL NOT APPLY TO
PERSONS SELLING BY SAMPLE TO MANUFACTURERS OR LICENSED MERCHANTS OR
DEALERS DOING BUSINESS IN SAID BOROUGH OF JEANNETTE." 

PETITIONERS ARE "JEHOVAH'S WITNESSES."  THEY WENT ABOUT FROM DOOR TO
DOOR IN THE CITY OF JEANNETTE DISTRIBUTING LITERATURE AND SOLICITING
PEOPLE TO "PURCHASE" CERTAIN RELIGIOUS BOOKS AND PAMPHLETS, ALL
PUBLISHED BY THE WATCH TOWER BIBLE & TRACT SOCIETY.  FN1  THE "PRICE"
OF THE BOOKS WAS TWENTY-FIVE CENTS EACH, THE "PRICE" OF THE PAMPHLETS
FIVE CENTS EACH.  FN2  IN CONNECTION WITH THESE ACTIVITIES, PETITIONERS
USED A PHONOGRAPH  FN3  ON WHICH THEY PLAYED A RECORD EXPOUNDING
CERTAIN OF THEIR VIEWS ON RELIGION.  NONE OF THEM OBTAINED A LICENSE
UNDER THE ORDINANCE.  BEFORE THEY WERE ARRESTED EACH HAD MADE "SALES"
OF BOOKS.  THERE WAS EVIDENCE THAT IT WAS THEIR PRACTICE IN MAKING
THESE SOLICITATIONS TO REQUEST A "CONTRIBUTION" OF TWENTY-FIVE CENTS
EACH FOR THE BOOKS AND FIVE CENTS EACH FOR THE PAMPHLETS, BUT TO ACCEPT
LESSER SUMS OR EVEN TO DONATE THE VOLUMES IN CASE AN INTERESTED PERSON
WAS WITHOUT FUNDS.  IN THE PRESENT CASE, SOME DONATIONS OF PAMPHLETS
WERE MADE WHEN BOOKS WERE PURCHASED.  PETITIONERS WERE CONVICTED AND
FINED FOR VIOLATION OF THE ORDINANCE.  THEIR JUDGMENTS OF CONVICTION
WERE SUSTAINED BY THE SUPERIOR COURT OF PENNSYLVANIA, 149 PA. SUPER. 
CT. 175, 27 A.2D 666, AGAINST THEIR CONTENTION THAT THE ORDINANCE
DEPRIVED THEM OF THE FREEDOM OF SPEECH, PRESS, AND RELIGION GUARANTEED
BY THE FIRST AMENDMENT.  PETITIONS FOR LEAVE TO APPEAL TO THE SUPREME
COURT OF PENNSYLVANIA WERE DENIED.  THE CASES ARE HERE ON PETITIONS FOR
WRITS OF CERTIORARI WHICH WE GRANTED ALONG WITH THE PETITIONS FOR
REHEARING OF JONES V. OPELIKA, 316 U.S. 584, AND ITS COMPANION CASES. 

THE FIRST AMENDMENT, WHICH THE FOURTEENTH MAKES APPLICABLE TO THE
STATES, DECLARES THAT "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  ...  "  IT COULD
HARDLY BE DENIED THAT A TAX LAID SPECIFICALLY ON THE EXERCISE OF THOSE
FREEDOMS WOULD BE UNCONSTITUTIONAL.  YET THE LICENSE TAX IMPOSED BY
THIS ORDINANCE IS, IN SUBSTANCE, JUST THAT. 

PETITIONERS SPREAD THEIR INTERPRETATIONS OF THE BIBLE AND THEIR
RELIGIOUS BELIEFS LARGELY THROUGH THE HAND DISTRIBUTION OF LITERATURE
BY FULL OR PART TIME WORKERS.  FN4  THEY CLAIM TO FOLLOW THE EXAMPLE OF
PAUL, TEACHING "PUBLICKLY, AND FROM HOUSE TO HOUSE."  ACTS 20:20.  THEY
TAKE LITERALLY THE MANDATE OF THE SCRIPTURES, "GO YE INTO ALL THE
WORLD, AND PREACH THE GOSPEL TO EVERY CREATURE."  MARK 16:15.  IN DOING
SO THEY BELIEVE THAT THEY ARE OBEYING A COMMANDMENT OF GOD. 

THE HAND DISTRIBUTION OF RELIGIOUS TRACTS IS AN AGE-OLD FORM OF
MISSIONARY EVANGELISM - AS OLD AS THE HISTORY OF PRINTING PRESSES.  FN5
IT HAS BEEN A POTENT FORCE IN VARIOUS RELIGIOUS MOVEMENTS DOWN THROUGH
THE YEARS.  FN6  THIS FORM OF EVANGELISM IS UTILIZED TODAY ON A LARGE
SCALE BY VARIOUS RELIGIOUS SECTS WHOSE COLPORTEURS CARRY THE GOSPEL TO
THOUSANDS UPON THOUSANDS OF HOMES AND SEEK THROUGH PERSONAL VISITATIONS
TO WIN ADHERENTS TO THEIR FAITH.  FN7  IT IS MORE THAN PREACHING; IT IS
MORE THAN DISTRIBUTION OF RELIGIOUS LITERATURE.  IT IS A COMBINATION OF
BOTH.  ITS PURPOSE IS AS EVANGELICAL AS THE REVIVAL MEETING.  THIS FORM
OF RELIGIOUS ACTIVITY OCCUPIES THE SAME HIGH ESTATE UNDER THE FIRST
AMENDMENT AS DO WORSHIP IN THE CHURCHES AND PREACHING FROM THE
PULPITS.  IT HAS THE SAME CLAIM TO PROTECTION AS THE MORE ORTHODOX AND
CONVENTIONAL EXERCISES OF RELIGION.  IT ALSO HAS THE SAME CLAIM AS THE
OTHERS TO THE GUARANTEES OF FREEDOM OF SPEECH AND FREEDOM OF THE
PRESS. 

THE INTEGRITY OF THIS CONDUCT OR BEHAVIOR AS A RELIGIOUS PRACTICE HAS
NOT BEEN CHALLENGED.  NOR DO WE HAVE PRESENTED ANY QUESTION AS TO THE
SINCERITY OF PETITIONERS IN THEIR RELIGIOUS BELIEFS AND PRACTICES,
HOWEVER MISGUIDED THEY MAY BE THOUGHT TO BE.  MOREOVER, WE DO NOT
INTIMATE OR SUGGEST IN RESPECTING THEIR SINCERITY THAT ANY CONDUCT CAN
BE MADE A RELIGIOUS RITE AND BY THE ZEAL OF THE PRACTITIONERS SWEPT
INTO THE FIRST AMENDMENT.  REYNOLDS V. STATES, 98 U.S. 145, 161-167,
AND DAVIS V. BEASON, 133 U.S. 333 DENIED ANY SUCH CLAIM TO THE PRACTICE
OF POLYGAMY AND BIGAMY.  OTHER CLAIMS MAY WELL ARISE WHICH DESERVE THE
SAME FATE.  WE ONLY HOLD THAT SPREADING ONE'S RELIGIOUS BELIEFS OR
PREACHING THE GOSPEL THROUGH DISTRIBUTION OF RELIGIOUS LITERATURE AND
THROUGH PERSONAL VISITATIONS IS AN AGE-OLD TYPE OF EVANGELISM WITH AS
HIGH A CLAIM TO CONSTITUTIONAL PROTECTION AS THE MORE ORTHODOX TYPES. 
THE MANNER IN WHICH IT IS PRACTICED AT TIMES GIVES RISE TO SPECIAL
PROBLEMS WITH WHICH THE POLICE POWER OF THE STATES IS COMPETENT TO
DEAL.  SEE FOR EXAMPLE COX V. NEW HAMPSHIRE, 312 U.S. 569, AND
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568.  BUT THAT MERELY ILLUSTRATES
THAT THE RIGHTS WITH WHICH WE ARE DEALING ARE NOT ABSOLUTES.  SCHNEIDER
V. STATE, 308 U.S. 147, 160-161.  WE ARE CONCERNED, HOWEVER, IN THESE
CASES MERELY WITH ONE NARROW ISSUE.  THERE IS PRESENTED FOR DECISION NO
QUESTION WHATSOEVER CONCERNING PUNISHMENT FOR ANY ALLEGED UNLAWFUL ACTS
DURING THE SOLICITATION.  NOR IS THERE INVOLVED HERE ANY QUESTION AS TO
THE VALIDITY OF A REGISTRATION SYSTEM FOR COLPORTEURS AND OTHER
SOLICITORS.  THE CASES PRESENT A SINGLE ISSUE - THE CONSTITUTIONALITY
OF AN ORDINANCE WHICH AS CONSTRUED AND APPLIED REQUIRES RELIGIOUS
COLPORTEURS TO PAY A LICENSE TAX AS A CONDITION TO THE PURSUIT OF THEIR
ACTIVITIES. 

THE ALLEGED JUSTIFICATION FOR THE EXACTION OF THIS LICENSE TAX IS THE
FACT THAT THE RELIGIOUS LITERATURE IS DISTRIBUTED WITH A SOLICITATION
OF FUNDS.  THUS IT WAS STATED, IN JONES V. OPELIKA, SUPRA, P. 597, THAT
WHEN A RELIGIOUS SECT USES "ORDINARY COMMERCIAL METHODS OF SALES OF
ARTICLES TO RAISE PROPAGANDA FUNDS," IT IS PROPER FOR THE STATE TO
CHARGE "REASONABLE FEES FOR THE PRIVILEGE OF CANVASSING."  SITUATIONS
WILL ARISE WHERE IT WILL BE DIFFICULT TO DETERMINE WHETHER A PARTICULAR
ACTIVITY IS RELIGIOUS OR PURELY COMMERCIAL.  THE DISTINCTION AT TIMES
IS VITAL.  AS WE STATED ONLY THE OTHER DAY, IN JAMISON V. TEXAS, 318
U.S. 413, 417, "THE STATES CAN PROHIBIT THE USE OF THE STREETS FOR THE
DISTRIBUTION OF PURELY COMMERCIAL LEAFLETS, EVEN THOUGH SUCH LEAFLETS
MAY HAVE 'A CIVIC APPEAL, OR A MORAL PLATITUDE' APPENDED.  VALENTINE V.
CHRESTENSEN, 316 U.S. 52, 55.  THEY MAY NOT PROHIBIT THE DISTRIBUTION
OF HANDBILLS IN THE PURSUIT OF A CLEARLY RELIGIOUS ACTIVITY MERELY
BECAUSE THE HANDBILLS INVITE THE PURCHASE OF BOOKS FOR THE IMPROVED
UNDERSTANDING OF THE RELIGION OR BECAUSE THE HANDBILLS SEEK IN A LAWFUL
FASHION TO PROMOTE THE RAISING OF FUNDS FOR RELIGIOUS PURPOSES."  BUT
THE MERE FACT THAT THE RELIGIOUS LITERATURE IS "SOLD" BY ITINERANT
PREACHERS RATHER THAN "DONATED" DOES NOT TRANSFORM EVANGELISM INTO A
COMMERCIAL ENTERPRISE.  IF IT DID, THEN THE PASSING OF THE COLLECTION
PLATE IN CHURCH WOULD MAKE THE CHURCH SERVICE A COMMERCIAL PROJECT. 
THE CONSTITUTIONAL RIGHTS OF THOSE SPREADING THEIR RELIGIOUS BELIEFS
THROUGH THE SPOKEN AND PRINTED WORD ARE NOT TO BE GAUGED BY STANDARDS
GOVERNING RETAILERS OR WHOLESALERS OF BOOKS.  THE RIGHT TO USE THE
PRESS FOR EXPRESSING ONE'S VIEWS IS NOT TO BE MEASURED BY THE
PROTECTION AFFORDED COMMERCIAL HANDBILLS.  IT SHOULD BE REMEMBERED THAT
THE PAMPHLETS OF THOMAS PAINE WERE NOT DISTRIBUTED FREE OF CHARGE.  IT
IS PLAIN THAT A RELIGIOUS ORGANIZATION NEEDS FUNDS TO REMAIN A GOING
CONCERN.  BUT AN ITINERANT EVANGELIST, HOWEVER MISGUIDED OR INTOLERANT
HE MAY BE, DOES NOT BECOME A MERE BOOK AGENT BY SELLING THE BIBLE OR
RELIGIOUS TRACTS TO HELP DEFRAY HIS EXPENSES OR TO SUSTAIN HIM. 
FREEDOM OF SPEECH, FREEDOM OF THE PRESS, FREEDOM OF RELIGION ARE
AVAILABLE TO ALL, NOT MERELY TO THOSE WHO CAN PAY THEIR OWN WAY.  AS WE
HAVE SAID, THE PROBLEM OF DRAWING THE LINE BETWEEN A PURELY COMMERCIAL
ACTIVITY AND A RELIGIOUS ONE WILL AT TIMES BE DIFFICULT.  ON THIS
RECORD IT PLAINLY CANNOT BE SAID THAT PETITIONERS WERE ENGAGED IN A
COMMERCIAL RATHER THAN A RELIGIOUS VENTURE.  IT IS A DISTORTION OF THE
FACTS OF RECORD TO DESCRIBE THEIR ACTIVITIES AS THE OCCUPATION OF
SELLING BOOKS AND PAMPHLETS.  AND THE PENNSYLVANIA COURT DID NOT REST
THE JUDGMENTS OF CONVICTION ON THAT BASIS, THOUGH IT DID FIND THAT
PETITIONERS "SOLD" THE LITERATURE.  THE SUPREME COURT OF IOWA IN STATE
V. MEAD, 230 IOWA 1217, 300 N.W. 523, 524, DESCRIBED THE SELLING
ACTIVITIES OF MEMBERS OF THIS SAME SECT AS "MERELY INCIDENTAL AND
COLLATERAL" TO THEIR "MAIN OBJECT WHICH WAS TO PREACH AND PUBLICIZE THE
DOCTRINES OF THEIR ORDER."  AND SEE STATE V. MEREDITH, 197 S.C. 351, 15
S.E.2D 678; PEOPLE V. BARBER, 289 N.Y. 378, 385-386, 46 N.E.2D 329. 
THAT ACCURATELY SUMMARIZES THE PRESENT RECORD. 

WE DO NOT MEAN TO SAY THAT RELIGIOUS GROUPS AND THE PRESS ARE FREE
FROM ALL FINANCIAL BURDENS OF GOVERNMENT.  SEE GROSJEAN V. AMERICAN
PRESS CO., 297 U.S. 233, 250.  WE HAVE HERE SOMETHING QUITE DIFFERENT,
FOR EXAMPLE, FROM A TAX ON THE INCOME OF ONE WHO ENGAGES IN RELIGIOUS
ACTIVITIES OR A TAX ON PROPERTY USED OR EMPLOYED IN CONNECTION WITH
THOSE ACTIVITIES.  IT IS ONE THING TO IMPOSE A TAX ON THE INCOME OR
PROPERTY OF A PREACHER.  IT IS QUITE ANOTHER THING TO EXACT A TAX FROM
HIM FOR THE PRIVILEGE OF DELIVERING A SERMON.  THE TAX IMPOSED BY THE
CITY OF JEANNETTE IS A FLAT LICENSE TAX, THE PAYMENT OF WHICH IS A
CONDITION OF THE EXERCISE OF THESE CONSTITUTIONAL PRIVILEGES.  THE
POWER TO TAX THE EXERCISE OF A PRIVILEGE IS THE POWER TO CONTROL OR
SUPPRESS ITS ENJOYMENT.  MAGNANO CO. V. HAMILTON, 292 U.S. 40, 44-45,
AND CASES CITED.  THOSE WHO CAN TAX THE EXERCISE OF THIS RELIGIOUS
PRACTICE CAN MAKE ITS EXERCISE SO COSTLY AS TO DEPRIVE IT OF THE
RESOURCES NECESSARY FOR ITS MAINTENANCE.  THOSE WHO CAN TAX THE
PRIVILEGE OF ENGAGING IN THIS FORM OF MISSIONARY EVANGELISM CAN CLOSE
ITS DOORS TO ALL THOSE WHO DO NOT HAVE A FULL PURSE.  SPREADING
RELIGIOUS BELIEFS IN THIS ANCIENT AND HONORABLE MANNER WOULD THUS BE
DENIED THE NEEDY.  THOSE WHO CAN DEPRIVE RELIGIOUS GROUPS OF THEIR
COLPORTEURS CAN TAKE FROM THEM A PART OF THE VITAL POWER OF THE PRESS
WHICH HAS SURVIVED FROM THE REFORMATION. 

IT IS CONTENDED, HOWEVER, THAT THE FACT THAT THE LICENSE TAX CAN
SUPPRESS OR CONTROL THIS ACTIVITY IS UNIMPORTANT IF IT DOES NOT DO SO.
BUT THAT IS TO DISREGARD THE NATURE OF THIS TAX.  IT IS A LICENSE TAX -
A FLAT TAX IMPOSED ON THE EXERCISE OF A PRIVILEGE GRANTED BY THE BILL
OF RIGHTS.  A STATE MAY NOT IMPOSE A CHARGE FOR THE ENJOYMENT OF A
RIGHT GRANTED BY THE FEDERAL CONSTITUTION.  THUS, IT MAY NOT EXACT A
LICENSE TAX FOR THE PRIVILEGE OF CARRYING ON INTERSTATE COMMERCE
(MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, 56-58), ALTHOUGH IT MAY
TAX THE PROPERTY USED IN, OR THE INCOME DERIVED FROM, THAT COMMERCE, SO
LONG AS THOSE TAXES ARE NOT DISCRIMINATORY.  ID., P. 47 AND CASES
CITED.  A LICENSE TAX APPLIED TO ACTIVITIES GUARANTEED BY THE FIRST
AMENDMENT WOULD HAVE THE SAME DESTRUCTIVE EFFECT.  IT IS TRUE THAT THE
FIRST AMENDMENT, LIKE THE COMMERCE CLAUSE, DRAWS NO DISTINCTION BETWEEN
LICENSE TAXES, FIXED SUM TAXES, AND OTHER KINDS OF TAXES.  BUT THAT IS
NO REASON WHY WE SHOULD SHUT OUR EYES TO THE NATURE OF THE TAX AND ITS
DESTRUCTIVE INFLUENCE.  THE POWER TO IMPOSE A LICENSE TAX ON THE
EXERCISE OF THESE FREEDOMS IS INDEED AS POTENT AS THE POWER OF
CENSORSHIP WHICH THIS COURT HAS REPEATEDLY STRUCK DOWN.  LOVELL V.
GRIFFIN, 303 U.S. 444; SCHNEIDER V. STATE, SUPRA; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 306; LARGENT V. TEXAS, 318 U.S. 418; JAMISON
V. TEXAS, SUPRA.  IT WAS FOR THAT REASON THAT THE DISSENTING OPINIONS
IN JONES V. OPELIKA, SUPRA, STRESSED THE NATURE OF THIS TYPE OF TAX. 
316 U.S. PP. 607-609, 620, 623.  IN THAT CASE, AS IN THE PRESENT ONES,
WE HAVE SOMETHING VERY DIFFERENT FROM A REGISTRATION SYSTEM UNDER WHICH
THOSE GOING FROM HOUSE TO HOUSE ARE REQUIRED TO GIVE THEIR NAMES,
ADDRESSES AND OTHER MARKS OF IDENTIFICATION TO THE AUTHORITIES.  IN ALL
OF THESE CASES THE ISSUANCE OF THE PERMIT OR LICENSE IS DEPENDENT ON
THE PAYMENT OF A LICENSE TAX.  AND THE LICENSE TAX IS FIXED IN AMOUNT
AND UNRELATED TO THE SCOPE OF THE ACTIVITIES OF PETITIONERS OR TO THEIR
REALIZED REVENUES.  IT IS NOT A NOMINAL FEE IMPOSED AS A REGULATORY
MEASURE TO DEFRAY THE EXPENSES OF POLICING THE ACTIVITIES IN QUESTION. 
FN8  IT IS IN NO WAY APPORTIONED.  IT IS A FLAT LICENSE TAX LEVIED AND
COLLECTED AS A CONDITION TO THE PURSUIT OF ACTIVITIES WHOSE ENJOYMENT
IS GUARANTEED BY THE FIRST AMENDMENT.  ACCORDINGLY, IT RESTRAINS IN
ADVANCE THOSE CONSTITUTIONAL LIBERTIES OF PRESS AND RELIGION AND
INEVITABLY TENDS TO SUPPRESS THEIR EXERCISE.  THAT IS ALMOST UNIFORMLY
RECOGNIZED AS THE INHERENT VICE AND EVIL OF THIS FLAT LICENSE TAX.  AS
STATED BY THE SUPREME COURT OF ILLINOIS IN A CASE INVOLVING THIS SAME
COMPELLED "TO PURCHASE, THROUGH A LICENSE FEE OR A LICENSE TAX, THE
PRIVILEGE FREELY GRANTED BY THE CONSTITUTION."  N9  BLUE ISLAND V.
KOZUL, 379 ILL. 511, 519, 41 N.E.2D 515.  SO, IT MAY NOT BE SAID THAT
PROOF IS LACKING THAT THESE LICENSE TAXES EITHER SEPARATELY OR
CUMULATIVELY HAVE RESTRICTED OR ARE LIKELY TO RESTRICT PETITIONERS'
RELIGIOUS ACTIVITIES.  ON THEIR FACE THEY ARE A RESTRICTION OF THE FREE
EXERCISE OF THOSE FREEDOMS WHICH ARE PROTECTED BY THE FIRST AMENDMENT. 

THE TAXES IMPOSED BY THIS ORDINANCE CAN HARDLY HELP BUT BE AS SEVERE
AND TELLING IN THEIR IMPACT ON THE FREEDOM OF THE PRESS AND RELIGION AS
THE "TAXES ON KNOWLEDGE" AT WHICH THE FIRST AMENDMENT WAS PARTLY
AIMED.  GROSJEAN V. AMERICAN PRESS CO., SUPRA, PP. 244-249.  THEY MAY
INDEED OPERATE EVEN MORE SUBTLY.  ITINERANT EVANGELISTS MOVING
THROUGHOUT A STATE OR FROM STATE TO STATE WOULD FEEL IMMEDIATELY THE
CUMULATIVE EFFECT OF SUCH ORDINANCES AS THEY BECOME FASHIONABLE.  THE
WAY OF THE RELIGIOUS DISSENTER HAS LONG BEEN HARD.  BUT IF THE FORMULA
OF THIS TYPE OF ORDINANCE IS APPROVED, A NEW DEVICE FOR THE SUPPRESSION
OF RELIGIOUS MINORITIES WILL HAVE BEEN FOUND.  THIS METHOD OF
DISSEMINATING RELIGIOUS BELIEFS CAN BE CRUSHED AND CLOSED OUT BY THE
SHEER WEIGHT OF THE TOLL OR TRIBUTE WHICH IS EXACTED TOWN BY TOWN,
VILLAGE BY VILLAGE.  THE SPREAD OF RELIGIOUS IDEAS THROUGH PERSONAL
VISITATIONS BY THE LITERATURE MINISTRY OF NUMEROUS RELIGIOUS GROUPS
WOULD BE STOPPED. 

THE FACT THAT THE ORDINANCE IS "NONDISCRIMINATORY" IS IMMATERIAL. 
THE PROTECTION AFFORDED BY THE FIRST AMENDMENT IS NOT SO RESTRICTED.  A
LICENSE TAX CERTAINLY DOES NOT ACQUIRE CONSTITUTIONAL VALIDITY BECAUSE
IT CLASSIFIES THE PRIVILEGES PROTECTED BY THE FIRST AMENDMENT ALONG
WITH THE WARES AND MERCHANDISE OF HUCKSTERS AND PEDDLERS AND TREATS
THEM ALL ALIKE.  SUCH EQUALITY IN TREATMENT DOES NOT SAVE THE
ORDINANCE.  FREEDOM OF PRESS, FREEDOM OF SPEECH, FREEDOM OF RELIGION
ARE IN A PREFERRED POSITION. 

IT IS CLAIMED, HOWEVER, THAT THE ULTIMATE QUESTION IN DETERMINING THE
CONSTITUTIONALITY OF THIS LICENSE TAX IS WHETHER THE STATE HAS GIVEN
SOMETHING FOR WHICH IT CAN ASK A RETURN.  THAT PRINCIPLE HAS WIDE
APPLICABILITY.  STATE TAX COMMISSION V. ALDRICH, 316 U.S. 174, AND
CASES CITED.  BUT IT IS QUITE IRRELEVANT HERE.  THIS TAX IS NOT A
CHARGE FOR THE ENJOYMENT OF A PRIVILEGE OR BENEFIT BESTOWED BY THE
STATE.  THE PRIVILEGE IN QUESTION EXISTS APART FROM STATE AUTHORITY. 
IT IS GUARANTEED THE PEOPLE BY THE FEDERAL CONSTITUTION. 

CONSIDERABLE EMPHASIS IS PLACED ON THE KIND OF LITERATURE WHICH
PETITIONERS WERE DISTRIBUTING - ITS PROVOCATIVE, ABUSIVE, AND ILL
MANNERED CHARACTER AND THE ASSAULT WHICH IT MAKES ON OUR ESTABLISHED
CHURCHES AND THE CHERISHED FAITHS OF MANY OF US.  SEE DOUGLAS V.
JEANNETTE, CONCURRING OPINION, POST, P. 166.  BUT THOSE CONSIDERATIONS
ARE NO JUSTIFICATION FOR THE LICENSE TAX WHICH THE ORDINANCE IMPOSES. 
PLAINLY A COMMUNITY MAY NOT SUPPRESS, OR THE STATE TAX, THE
DISSEMINATION OF VIEWS BECAUSE THEY ARE UNPOPULAR, ANNOYING OR
DISTASTEFUL.  IF THAT DEVICE WERE EVER SANCTIONED, THERE WOULD HAVE
BEEN FORGED A READY INSTRUMENT FOR THE SUPPRESSION OF THE FAITH WHICH
ANY MINORITY CHERISHES BUT WHICH DOES NOT HAPPEN TO BE IN FAVOR.  THAT
WOULD BE A COMPLETE REPUDIATION OF THE PHILOSOPHY OF THE BILL OF
RIGHTS. 

JEHOVAH'S WITNESSES ARE NOT "ABOVE THE LAW."  BUT THE PRESENT
ORDINANCE IS NOT DIRECTED TO THE PROBLEMS WITH WHICH THE POLICE POWER
OF THE STATE IS FREE TO DEAL.  IT DOES NOT COVER, AND PETITIONERS ARE
NOT CHARGED WITH, BREACHES OF THE PEACE.  THEY ARE PURSUING THEIR
SOLICITATIONS PEACEFULLY AND QUIETLY.  PETITIONERS, MOREOVER, ARE NOT
CHARGED WITH OR PROSECUTED FOR THE USE OF LANGUAGE WHICH IS OBSCENE,
ABUSIVE, OR WHICH INCITES RETALIATION.  CF. CHAPLINSKY V. NEW
HAMPSHIRE, SUPRA.  NOR DO WE HAVE HERE, AS WE DID IN COX V. NEW
HAMPSHIRE, SUPRA, AND CHAPLINSKY V. NEW HAMPSHIRE, SUPRA, STATE
REGULATION OF THE STREETS TO PROTECT AND INSURE THE SAFETY, COMFORT, OR
CONVENIENCE OF THE PUBLIC.  FURTHERMORE, THE PRESENT ORDINANCE IS NOT
NARROWLY DRAWN TO SAFEGUARD THE PEOPLE OF THE COMMUNITY IN THEIR HOMES
AGAINST THE EVILS OF SOLICITATIONS.  SEE CANTWELL V. CONNECTICUT,
SUPRA, 306.  AS WE HAVE SAID, IT IS NOT MERELY A REGISTRATION ORDINANCE
CALLING FOR AN IDENTIFICATION OF THE SOLICITORS SO AS TO GIVE THE
AUTHORITIES SOME BASIS FOR INVESTIGATING STRANGERS COMING INTO THE
COMMUNITY.  AND THE FEE IS NOT A NOMINAL ONE, IMPOSED AS A REGULATORY
MEASURE AND CALCULATED TO DEFRAY THE EXPENSE OF PROTECTING THOSE ON THE
STREETS AND AT HOME AGAINST THE ABUSES OF SOLICITORS.  SEE COX V. NEW
HAMPSHIRE, SUPRA, PP. 576-577.  NOR CAN THE PRESENT ORDINANCE SURVIVE
IF WE ASSUME THAT IT HAS BEEN CONSTRUED TO APPLY ONLY TO SOLICITATION
FROM HOUSE TO HOUSE.  FN10  THE ORDINANCE IS NOT NARROWLY DRAWN TO
PREVENT OR CONTROL ABUSES OR EVILS ARISING FROM THAT ACTIVITY.  RATHER,
IT SETS ASIDE THE RESIDENTIAL AREAS AS A PROHIBITED ZONE, ENTRY OF
WHICH IS DENIED PETITIONERS UNLESS THE TAX IS PAID.  THAT RESTRAINT AND
ONE WHICH IS CITY-WIDE IN SCOPE (JONES V. OPELIKA) ARE DIFFERENT ONLY
IN DEGREE.  EACH IS AN ABRIDGMENT OF FREEDOM OF PRESS AND A RESTRAINT
ON THE FREE EXERCISE OF RELIGION.  THEY STAND OR FALL TOGETHER. 

THE JUDGMENT IN JONES V. OPELIKA HAS THIS DAY BEEN VACATED.  FREED
FROM THAT CONTROLLING PRECEDENT, WE CAN RESTORE TO THEIR HIGH,
CONSTITUTIONAL POSITION THE LIBERTIES OF ITINERANT EVANGELISTS WHO
DISSEMINATE THEIR RELIGIOUS BELIEFS AND THE TENETS OF THEIR FAITH
THROUGH DISTRIBUTION OF LITERATURE.  THE JUDGMENTS ARE REVERSED AND THE
CAUSES ARE REMANDED TO THE PENNSYLVANIA SUPERIOR COURT FOR PROCEEDINGS
NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  TWO RELIGIOUS BOOKS - SALVATION AND CREATION - WERE SOLD. 
OTHERS WERE OFFERED IN ADDITION TO THE BIBLE.  THE WATCH TOWER BIBLE &
TRACT SOCIETY IS ALLEGED TO BE A NON-PROFIT CHARITABLE CORPORATION. 

FN2  PETITIONERS PAID THREE CENTS EACH FOR THE PAMPHLETS AND, IF THEY
DEVOTED ONLY THEIR SPARE TIME TO THE WORK, TWENTY CENTS EACH FOR THE
BOOKS.  THOSE DEVOTING FULL TIME TO THE WORK ACQUIRED THE BOOKS FOR
FIVE CENTS EACH.  THERE WAS EVIDENCE THAT SOME OF THE PETITIONERS PAID
THE DIFFERENCE BETWEEN THE SALES PRICE AND THE COST OF THE BOOKS TO
THEIR LOCAL CONGREGATIONS WHICH DISTRIBUTED THE LITERATURE. 

FN3  PURCHASED ALONG WITH THE RECORD FROM THE WATCH TOWER BIBLE &
TRACT SOCIETY. 

FN4  THE NATURE AND EXTENT OF THEIR ACTIVITIES THROUGHOUT THE WORLD
DURING THE YEARS 1939 AND 1940 ARE TO BE FOUND IN THE 1941 YEARBOOK OF
JEHOVAH'S WITNESSES, PP. 62-243. 

FN5  PALMER, THE PRINTING PRESS AND THE GOSPEL (1912). 

FN6  WHITE, THE COLPORTEUR EVANGELIST (1930); HOME EVANGELIZATION
(1850); EDWARDS, THE ROMANCE OF THE BOOK (1932) C. V; 12 BIBLICAL
REPOSITORY (1844) ART. VIII; 16 THE SUNDAY MAGAZINE (1887) PP. 43-47; 3
MELIORA (1861) PP. 311-319; FELICE, PROTESTANTS OF FRANCE (1853) PP.
53, 513; 3 D'AUBIGNE, HISTORY OF THE REFORMATION (1849) PP. 103, 152,
436-437; REPORT OF COLPORTAGE IN VIRGINIA, NORTH CAROLINA & SOUTH
CAROLINA, AMERICAN TRACT SOCIETY (1855).  AN EARLY TYPE OF COLPORTEUR
WAS DEPICTED BY JOHN GREENLEAF WHITTIER IN HIS LEGENDARY POEM, THE
VAUDOIS TEACHER.  AND SEE, WYLIE, HISTORY OF THE WALDENSES. 

FN7  THE GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS, WHO FILED A
BRIEF AMICUS CURIAE ON THE REARGUMENT OF JONES V. OPELIKA, HAS GIVEN US
THE FOLLOWING DATA CONCERNING THEIR LITERATURE MINISTRY:  THIS
DENOMINATION HAS 83 PUBLISHING HOUSES THROUGHOUT THE WORLD, ISSUING
PUBLICATIONS IN OVER 200 LANGUAGES.  SOME 9,256 SEPARATE PUBLICATIONS
WERE ISSUED IN 1941.  BY PRINTED AND SPOKEN WORD, THE GOSPEL IS CARRIED
INTO 412 COUNTRIES IN 824 LANGUAGES.  1942 YEARBOOK, P. 287.  DURING
DECEMBER 1941, A TOTAL OF 1,018 COLPORTEURS OPERATED IN NORTH AMERICA. 
THEY DELIVERED DURING THAT MONTH $97,997.19 WORTH OF GOSPEL LITERATURE,
AND FOR THE WHOLE YEAR OF 1941 A TOTAL OF $790,610.36 - AN AVERAGE PER
PERSON OF ABOUT $65 PER MONTH.  SOME OF THESE WERE STUDENTS AND
TEMPORARY WORKERS.  COLPORTEURS OF THIS DENOMINATION RECEIVE HALF OF
THEIR COLLECTIONS, FROM WHICH THEY MUST PAY THEIR TRAVELING AND LIVING
EXPENSES.  COLPORTEURS ARE SPECIALLY TRAINED AND THEIR QUALIFICATIONS
EQUAL THOSE OF PREACHERS.  IN THE FIELD, EACH WORKER IS UNDER THE
SUPERVISION OF A FIELD MISSIONARY SECRETARY TO WHOM A WEEKLY REPORT IS
MADE.  AFTER FIFTEEN YEARS OF CONTINUOUS SERVICE, EACH COLPORTEUR IS
ENTITLED TO THE SAME PENSION AS RETIRED MINISTERS.  AND SEE HOWELL, THE
GREAT ADVENT MOVEMENT (1935), PP. 72-75. 

FN8  THE CONSTITUTIONAL DIFFERENCE BETWEEN SUCH A REGULATORY MEASURE
AND A TAX ON THE EXERCISE OF A FEDERAL RIGHT HAS LONG BEEN RECOGNIZED. 
WHILE A STATE MAY NOT EXACT A LICENSE TAX FOR THE PRIVILEGE OF CARRYING
ON INTERSTATE COMMERCE (MCGOLDRICK V. BERWIND-WHITE CO., SUPRA, PP. 56
58), IT MAY, FOR EXAMPLE, EXACT A FEE TO DEFRAY THE COST OF PURELY
LOCAL REGULATIONS IN SPITE OF THE FACT THAT THOSE REGULATIONS
INCIDENTALLY AFFECT COMMERCE.  "SO LONG AS THEY DO NOT IMPEDE THE FREE
FLOW OF COMMERCE AND ARE NOT MADE THE SUBJECT OF REGULATION BY CONGRESS
THEY ARE NOT FORBIDDEN.  CLYDE MALLORY LINES V. ALABAMA, 296 U.S. 261,
267, AND CASES CITED.  AND SEE SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL
BROS., 303 U.S. 177, 185-188. 

FN9  THAT IS THE VIEW OF MOST STATE COURTS WHICH HAVE PASSED ON THE
QUESTION.  MCCONKEY V. FREDERICKSBURG, 179 VA. 556, 19 S.E.2D 682;
STATE V. GREAVES, 112 VT. 222, 22 A.2D 497; PEOPLE V. BANKS, 168 MISC.
515, 6 N.Y.S.2D 41.  CONTRA:  COOK V. HARRISON, 180 ARK. 546, 21 S.W.2D
966. 

FN10  THE PENNSYLVANIA SUPERIOR COURT STATED THAT THE ORDINANCE HAS
BEEN "ENFORCED" ONLY TO PREVENT PETITIONERS FROM CANVASSING "FROM DOOR
TO DOOR AND HOUSE TO HOUSE" WITHOUT A LICENSE AND NOT TO PREVENT THEM
FROM DISTRIBUTING THEIR LITERATURE ON THE STREETS.  149 PA. SUPER. 
CT., P. 184, 27 A.2D 670. 

THE FOLLOWING DISSENTING OPINIONS ARE APPLICABLE TO NOS. 280, 314,
AND 966(OCTOBER TERM, 1941), JONES V. OPELIKA, ANTE, P. 103; AND TO
NOS. 480-487, MURDOCK V. PENNSYLVANIA, ANTE, P. 105.  SEE ALSO OPINION
OF MR. JUSTICE JACKSON, POST, P. 166. 

MR. JUSTICE REED, DISSENTING: 

THESE CASES PRESENT FOR SOLUTION THE PROBLEM OF THE CONSTITUTIONALITY
OF CERTAIN MUNICIPAL ORDINANCES LEVYING A TAX FOR THE PRODUCTION OF
REVENUE ON THE SALE OF BOOKS AND PAMPHLETS IN THE STREETS OR FROM DOOR
TO DOOR.  DECISIONS SUSTAINING THE PARTICULAR ORDINANCES WERE ENTERED
IN THE THREE CASES FIRST LISTED AT THE LAST TERM OF THIS COURT.  IN
THAT OPINION THE ORDINANCES WERE SET OUT AND THE FACTS AND ISSUES
STATED.  JONES V. OPELIKA, 316 U.S. 584.  A REHEARING HAS BEEN
GRANTED.  THE PRESENT JUDGMENTS VACATE THE OLD AND INVALIDATE THE
ORDINANCES.  THE EIGHT CASES OF THIS TERM INVOLVE CANVASSING FROM DOOR
TO DOOR ONLY UNDER SIMILAR ORDINANCES, WHICH ARE IN THE FORM STATED IN
THE COURT'S OPINION.  BY A PER CURIAM OPINION OF THIS DAY, THE COURT
AFFIRMS ITS ACCEPTANCE OF THE ARGUMENTS PRESENTED BY THE DISSENT OF
LAST TERM IN JONES V. OPELIKA.  THE COURT STATES ITS POSITION ANEW IN
THE JEANNETTE CASES. 

THIS DISSENT DOES NOT DEAL WITH AN OBJECTION WHICH THEORETICALLY
COULD BE MADE IN EACH CASE, TO WIT, THAT THE LICENSES ARE SO EXCESSIVE
IN AMOUNT AS TO BE PROHIBITORY.  THIS MATTER IS NOT CONSIDERED BECAUSE
THAT DEFENSE IS NOT RELIED UPON IN THE PLEADINGS, THE BRIEFS OR AT THE
BAR.  NO EVIDENCE IS OFFERED TO SHOW THE AMOUNT IS OPPRESSIVE.  AN
UNEQUAL TAX, LEVIED ON THE ACTIVITIES OF DISTRIBUTORS OF INFORMATORY
PUBLICATIONS, WOULD BE A PHASE OF DISCRIMINATION AGAINST THE FREEDOM OF
SPEECH, PRESS OR RELIGION.  NOR DO WE DEAL WITH DISCRIMINATION AGAINST
THE PETITIONERS, AS INDIVIDUALS OR AS MEMBERS OF THE GROUP, CALLING
THEMSELVES JEHOVAH'S WITNESSES.  THERE IS NO CONTENTION IN ANY OF THESE
CASES THAT SUCH DISCRIMINATION IS PRACTICED IN THE APPLICATION OF THE
ORDINANCES.  OBVIOUSLY, AN IMPROPER APPLICATION BY A CITY, WHICH
RESULTED IN THE ARREST OF WITNESSES AND FAILURE TO ENFORCE THE
ORDINANCE AGAINST OTHER GROUPS, SUCH AS THE ADVENTISTS, WOULD RAISE
ENTIRELY DISTINCT ISSUES. 

A FURTHER AND IMPORTANT DISCLAIMER MUST BE MADE IN ORDER TO FOCUS
ATTENTION SHARPLY UPON THE CONSTITUTIONAL ISSUE.  THIS DISSENT DOES NOT
EXPRESS, DIRECTLY OR BY INFERENCE, ANY CONCLUSION AS TO THE
CONSTITUTIONAL RIGHTS OF STATE OR FEDERAL GOVERNMENTS TO PLACE A
PRIVILEGE TAX UPON THE SOLICITING OF A FREE-WILL CONTRIBUTION FOR
RELIGIOUS PURPOSES.  PETITIONERS SUGGEST THAT THEIR BOOKS AND PAMPHLETS
ARE NOT SOLD BUT ARE GIVEN EITHER WITHOUT PRICE OR IN APPRECIATION OF
THE RECIPIENT'S GIFT FOR THE FURTHERANCE OF THE WORK OF THE WITNESSES. 
THE PITTANCE SOUGHT, AS WELL AS THE PRACTICE OF LEAVING BOOKS WITH POOR
PEOPLE WITHOUT COST, GIVES STRENGTH TO THIS ARGUMENT.  IN OUR JUDGMENT,
HOWEVER, THE PLAN OF NATIONAL DISTRIBUTION BY THE WATCH TOWER BIBLE &
TRACT SOCIETY, WITH ITS WHOLESALE PRICES OF FIVE OR TWENTY CENTS PER
COPY FOR BOOKS, DELIVERED TO THE PUBLIC BY THE WITNESSES AT TWENTY-FIVE
CENTS PER COPY, JUSTIFIES THE CHARACTERIZATION OF THE TRANSACTION AS A
SALE BY ALL THE STATE COURTS.  THE EVIDENCE IS CONCLUSIVE THAT THE
WITNESSES NORMALLY APPROACH A PROSPECT WITH AN OFFER OF A BOOK FOR
TWENTY-FIVE CENTS.  SOMETIMES, APPARENTLY RARELY, A BOOK IS LEFT WITH A
PROSPECT WITHOUT PAYMENT.  THE QUID PRO QUO IS DEMANDED.  IF THE PROFIT
WAS GREATER, TWENTY CENTS OR EVEN ONE DOLLAR, NO DIFFERENCE IN
PRINCIPLE WOULD EMERGE.  THE WITNESS SELLS BOOKS TO RAISE MONEY FOR
PROPAGANDIZING HIS FAITH, JUST AS OTHER RELIGIOUS GROUPS MIGHT SPONSOR
BAZAARS, OR PEDDLE TICKETS TO CHURCH SUPPERS, OR SELL BIBLES OR PRAYER
BOOKS FOR THE SAME OBJECT.  HOWEVER HIGH THE PURPOSE OR NOBLE THE AIMS
OF THE WITNESS, THE TRANSACTION HAS BEEN FOUND BY THE STATE COURTS TO
BE A SALE UNDER THEIR ORDINANCES AND, THOUGH OUR DOUBT WAS GREATER THAN
IT IS, THE STATE'S CONCLUSION WOULD INFLUENCE US TO FOLLOW ITS
DETERMINATION.  FN1 

IN THE OPINION IN JONES V. OPELIKA, 316 U.S. 584, ON THE FORMER
HEARING, ATTENTION WAS CALLED TO THE DIFFERENTIATION BETWEEN THESE
CASES OF TAXATION AND THOSE OF FORBIDDEN CENSORSHIP, PROHIBITION OR
DISCRIMINATION.  THERE IS NO OCCASION TO REPEAT WHAT HAS BEEN WRITTEN
SO RECENTLY AS TO THE CONSTITUTIONAL RIGHT TO TAX THE MONEY-RAISING
ACTIVITIES OF RELIGIOUS OR DIDACTIC GROUPS.  THERE ARE, HOWEVER, OTHER
REASONS, NOT FULLY DEVELOPED IN THAT OPINION, THAT ADD TO OUR
CONVICTION THAT THE CONSTITUTION DOES NOT PROHIBIT THESE GENERAL
OCCUPATIONAL TAXES. 

THE REAL CONTENTION OF THE WITNESSES IS THAT THERE CAN BE NO TAXATION
OF THE OCCUPATION OF SELLING BOOKS AND PAMPHLETS BECAUSE TO DO SO WOULD
BE CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
WHICH NOW IS HELD TO HAVE DRAWN THE CONTENTS OF THE FIRST AMENDMENT
INTO THE CATEGORY OF INDIVIDUAL RIGHTS PROTECTED FROM STATE
DEPRIVATION.  GITLOW V. NEW YORK, 268 U.S. 652, 666; NEAR V. MINNESOTA,
283 U.S. 697, 707; CANTWELL V. CONNECTICUT, 310 U.S. 296, 303.  SINCE
THE PUBLICATIONS TEACH A RELIGION WHICH CONFORMS TO OUR STANDARDS OF
LEGALITY, IT IS URGED THAT THESE ORDINANCES PROHIBIT THE FREE EXERCISE
OF RELIGION AND ABRIDGE THE FREEDOM OF SPEECH AND OF THE PRESS. 

THE FIRST AMENDMENT READS AS FOLLOWS: 

"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." 

IT WAS ONE OF TWELVE PROPOSED ON SEPTEMBER 25, 1789, TO THE STATES BY
THE FIRST CONGRESS AFTER THE ADOPTION OF THE CONSTITUTION.  TEN WERE
RATIFIED.  THEY WERE INTENDED TO BE AND HAVE BECOME OUR BILL OF
RIGHTS.  BY THEIR TERMS, OUR PEOPLE HAVE A GUARANTEE THAT SO LONG AS
LAW AS WE KNOW IT SHALL PREVAIL, THEY SHALL LIVE PROTECTED FROM THE
TYRANNY OF THE DESPOT OR THE MOB.  NONE OF THE PROVISIONS OF OUR
CONSTITUTION IS MORE VENERATED BY THE PEOPLE OR RESPECTED BY
LEGISLATURES AND THE COURTS THAN THOSE WHICH PROCLAIM FOR OUR COUNTRY
THE FREEDOM OF RELIGION AND EXPRESSION.  WHILE THE INTERPRETERS OF THE
CONSTITUTION FIND THE PURPOSE WAS TO ALLOW THE WIDEST PRACTICAL SCOPE
FOR THE EXERCISE OF RELIGION AND THE DISSEMINATION OF INFORMATION, NO
JURIST HAS EVER CONCEIVED THAT THE PROHIBITION OF INTERFERENCE IS
ABSOLUTE.  FN2  IS SUBJECTION TO NONDISCRIMINATORY, NONEXCESSIVE
TAXATION IN THE DISTRIBUTION OF RELIGIOUS LITERATURE, A PROHIBITION OF
THE EXERCISE OF RELIGION OR AN ABRIDGMENT OF THE FREEDOM OF THE PRESS? 

NOTHING HAS BEEN BROUGHT TO OUR ATTENTION WHICH WOULD LEAD TO THE
CONCLUSION THAT THE CONTEMPORARY ADVOCATES OF THE ADOPTION OF A BILL OF
RIGHTS INTENDED SUCH AN EXEMPTION.  THE WORDS OF THE AMENDMENT DO NOT
SUPPORT SUCH A CONSTRUCTION.  "FREE" CANNOT BE HELD TO BE WITHOUT COST
BUT RATHER ITS MEANING MUST ACCORD WITH THE FREEDOM GUARANTEED.  "FREE"
MEANS A PRIVILEGE TO PRINT OR PRAY WITHOUT PERMISSION AND WITHOUT
ACCOUNTING TO AUTHORITY FOR ONE'S ACTIONS.  IN THE CONSTITUTIONAL
CONVENTION THE PROPOSAL FOR A BILL OF RIGHTS OF ANY KIND RECEIVED SCANT
ATTENTION.  FN3  IN THE COURSE OF THE RATIFICATION OF THE CONSTITUTION,
HOWEVER, THE ABSENCE OF A BILL OF RIGHTS WAS USED VIGOROUSLY BY THE
OPPONENTS OF THE NEW GOVERNMENT.  A NUMBER OF THE STATES SUGGESTED
AMENDMENTS.  WHERE THESE SUGGESTIONS HAVE ANY BEARING AT ALL UPON
RELIGION OR FREE SPEECH, THEY INDICATE NOTHING AS TO ANY FEELING
CONCERNING TAXATION EITHER OF RELIGIOUS BODIES OR THEIR EVANGELISM. 
FN4  THIS WAS NOT BECAUSE FREEDOM OF RELIGION OR FREE SPEECH WAS NOT
UNDERSTOOD.  IT WAS BECAUSE THE SUBJECTS WERE LOOKED UPON FROM
STANDPOINTS ENTIRELY DISTINCT FROM TAXATION.  FN5 

THE AVAILABLE EVIDENCE OF CONGRESSIONAL ACTION SHOWS CLEARLY THAT THE
DRAFTSMEN OF THE AMENDMENTS HAD IN MIND THE PRACTICE OF RELIGION AND
THE RIGHT TO BE HEARD, RATHER THAN ANY ABRIDGMENT OR INTERFERENCE WITH
EITHER BY TAXATION IN ANY FORM.  FN6  THE AMENDMENTS WERE PROPOSED BY
MR. MADISON.  HE WAS CAREFUL TO EXPLAIN TO THE CONGRESS THE MEANING OF
THE AMENDMENT ON RELIGION.  THE DRAFT WAS COMMENTED UPON BY MR. MADISON
WHEN IT READ: 

"NO RELIGION SHALL BE ESTABLISHED BY LAW, NOR SHALL THE EQUAL RIGHTS
OF CONSCIENCE BE INFRINGED."  1 ANNALS OF CONGRESS 729. 

HE SAID THAT HE APPREHENDED THE MEANING OF THE WORDS ON RELIGION TO
BE THAT CONGRESS SHOULD NOT ESTABLISH A RELIGION AND ENFORCE THE LEGAL
OBSERVATION OF IT BY LAW, NOR COMPEL MEN TO WORSHIP GOD IN ANY MANNER
CONTRARY TO THEIR CONSCIENCE.  ID., 730.  NO SUCH SPECIFIC
INTERPRETATION OF THE AMENDMENT ON FREEDOM OF EXPRESSION HAS BEEN FOUND
IN THE DEBATES.  THE CLEAREST IS PROBABLY FROM MR. BENSON,  FN7  WHO
SAID THAT 

"THE COMMITTEE WHO FRAMED THIS REPORT PROCEEDED ON THE PRINCIPLE THAT
THESE RIGHTS BELONGED TO THE PEOPLE; THEY CONCEIVED THEM TO BE
INHERENT; AND ALL THAT THEY MEANT TO PROVIDE AGAINST WAS THEIR BEING
INFRINGED BY THE GOVERNMENT."  ID., 731-32. 

THERE HAVE BEEN SUGGESTIONS THAT THE ENGLISH TAXES ON NEWSPAPERS,
SPRINGING FROM THE TAX ACT OF 10 ANNE, C. 19, SEC. CI,  FN8  INFLUENCED
THE ADOPTION OF THE FIRST AMENDMENT.  FN9  THESE TAXES WERE OBNOXIOUS
BUT AN EXAMINATION OF THE SOURCES OF THE SUGGESTION IS CONVINCING THAT
THERE IS NOTHING TO SUPPORT IT EXCEPT THE FACT THAT THE TAX ON
NEWSPAPERS WAS IN EXISTENCE IN ENGLAND AND WAS DISLIKED.  FN10  THE
SIMPLE ANSWER IS THAT, IF THERE HAD BEEN ANY PURPOSE OF CONGRESS TO
PROHIBIT ANY KIND OF TAXES ON THE PRESS, ITS KNOWLEDGE OF THE
ABOMINATED ENGLISH TAXES WOULD HAVE LED IT TO BAN THEM UNEQUIVOCALLY. 

IT IS ONLY IN RECENT YEARS THAT THE FREEDOMS OF THE FIRST AMENDMENT
HAVE BEEN RECOGNIZED AS AMONG THE FUNDAMENTAL PERSONAL RIGHTS PROTECTED
BY THE FOURTEENTH AMENDMENT FROM IMPAIRMENT BY THE STATES.  FN11  UNTIL
THEN THESE LIBERTIES WERE NOT DEEMED TO BE GUARDED FROM STATE ACTION BY
THE FEDERAL CONSTITUTION.  FN12  THE STATES PLACED RESTRAINTS UPON
THEMSELVES IN THEIR OWN CONSTITUTIONS IN ORDER TO PROTECT THEIR PEOPLE
IN THE EXERCISE OF THE FREEDOMS OF SPEECH AND OF RELIGION.  FN13
PENNSYLVANIA MAY BE TAKEN AS A FAIR EXAMPLE.  ITS CONSTITUTION READS: 

"ALL MEN HAVE A NATURAL AND INDEFEASIBLE RIGHT TO WORSHIP ALMIGHTY
GOD ACCORDING TO THE DICTATES OF THEIR OWN CONSCIENCES; NO MAN CAN OF
RIGHT BE COMPELLED TO ATTEND, ERECT OR SUPPORT ANY PLACE OF WORSHIP, OR
TO MAINTAIN ANY MINISTRY AGAINST HIS CONSENT; NO HUMAN AUTHORITY CAN,
IN ANY CASE WHATEVER, CONTROL OR INTERFERE WITH THE RIGHTS OF
CONSCIENCE AND NO PREFERENCE SHALL EVER BE GIVEN BY LAW TO ANY
RELIGIOUS ESTABLISHMENTS OR MODES OF WORSHIP."  PURDON'S PENNA.  STAT.,
CONST., ART. I, SEC. 3. 

"NO PERSON WHO ACKNOWLEDGES THE BEING OF A GOD, AND A FUTURE STATE OF
REWARDS AND PUNISHMENTS SHALL, ON ACCOUNT OF HIS RELIGIOUS SENTIMENTS,
BE DISQUALIFIED TO HOLD ANY OFFICE OR PLACE OF TRUST OR PROFIT UNDER
THIS COMMONWEALTH."  ID., ART. I, SEC. 4. 

"THE PRINTING PRESS SHALL BE FREE TO EVERY PERSON WHO MAY UNDERTAKE
TO EXAMINE THE PROCEEDINGS OF THE LEGISLATURE OR ANY BRANCH OF
GOVERNMENT, AND NO LAW SHALL EVER BE MADE TO RESTRAIN THE RIGHT
THEREOF.  THE FREE COMMUNICATION OF THOUGHTS AND OPINIONS IS ONE OF THE
INVALUABLE RIGHTS OF MAN, AND EVERY CITIZEN MAY FREELY SPEAK, WRITE AND
PRINT ON ANY SUBJECT, BEING RESPONSIBLE FOR THE ABUSE OF THAT LIBERTY. 
...  "  ID., ART. I, SEC. 7. 

IT WILL BE OBSERVED THAT THERE IS NO SUGGESTION OF FREEDOM FROM
TAXATION, AND THIS STATEMENT IS EQUALLY TRUE OF THE OTHER STATE
CONSTITUTIONAL PROVISIONS.  IT MAY BE CONCLUDED THAT NEITHER IN THE
STATE OR THE FEDERAL CONSTITUTIONS WAS GENERAL TAXATION OF CHURCH OR
PRESS INTERDICTED. 

IS THERE ANYTHING IN THE DECISIONS OF THIS COURT WHICH INDICATES THAT
CHURCH OR PRESS IS FREE FROM THE FINANCIAL BURDENS OF GOVERNMENT?  WE
FIND NOTHING.  RELIGIOUS SOCIETIES DEPEND FOR THEIR EXEMPTIONS FROM
TAXATION UPON STATE CONSTITUTIONS OR GENERAL STATUTES, NOT UPON THE
FEDERAL CONSTITUTION.  GIBBONS V. DISTRICT OF COLUMBIA, 116 U.S. 404. 
THIS COURT HAS HELD THAT THE CHIEF PURPOSE OF THE FREE PRESS GUARANTEE
WAS TO PREVENT PREVIOUS RESTRAINTS UPON PUBLICATION.  NEAR V.
MINNESOTA, 283 U.S. 697, 713.  FN14  IN GROSJEAN V. AMERICAN PRESS CO.,
297 U.S. 233, 250, IT WAS SAID THAT THE PREDOMINANT PURPOSE WAS TO
PRESERVE "AN UNTRAMMELED PRESS AS A VITAL SOURCE OF PUBLIC
INFORMATION."  IN THAT CASE, A GROSS RECEIPTS TAX ON ADVERTISEMENTS IN
PAPERS WITH A CIRCULATION OF MORE THAN TWENTY THOUSAND COPIES PER WEEK
WAS HELD INVALID BECAUSE "A DELIBERATE AND CALCULATED DEVICE IN THE
GUISE OF A TAX TO LIMIT THE CIRCULATION.  ...  "  THERE WAS THIS
FURTHER COMMENT: 

"IT IS NOT INTENDED BY ANYTHING WE HAVE SAID TO SUGGEST THAT THE
OWNERS OF NEWSPAPERS ARE IMMUNE FROM ANY OF THE ORDINARY FORMS OF
TAXATION FOR SUPPORT OF THE GOVERNMENT.  BUT THIS IS NOT AN ORDINARY
FORM OF TAX, BUT ONE SINGLE IN KIND, WITH A LONG HISTORY OF HOSTILE
MISUSE AGAINST THE FREEDOM OF THE PRESS."  ID., 250. 

IT MAY BE SAID, HOWEVER, THAT OURS IS A TOO NARROW, TECHNICAL AND
LEGALISTIC APPROACH TO THE PROBLEM OF STATE TAXATION OF THE ACTIVITIES
OF CHURCH AND PRESS; THAT WE SHOULD LOOK NOT TO THE EXPRESSED OR
HISTORICAL MEANING OF THE FIRST AMENDMENT BUT TO THE BROAD PRINCIPLES
OF FREE SPEECH AND FREE EXERCISE OF RELIGION WHICH PERVADE OUR NATIONAL
WAY OF LIFE.  IT MAY BE THAT THE FOURTEENTH AMENDMENT GUARANTEES THESE
PRINCIPLES RATHER THAN THE MORE DEFINITE CONCEPT EXPRESSED IN THE FIRST
AMENDMENT.  THIS WOULD MEAN THAT AS A COURT, WE SHOULD DETERMINE WHAT
SORT OF LIBERTY IT IS THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT GUARANTEES AGAINST STATE RESTRICTIONS ON SPEECH AND CHURCH. 

BUT WHETHER WE GIVE CONTENT TO THE LITERAL WORDS OF THE FIRST
AMENDMENT OR TO PRINCIPLES OF THE LIBERTY OF THE PRESS AND THE CHURCH,
WE CONCLUDE THAT CITIES OR STATES MAY LEVY REASONABLE, NON
DISCRIMINATORY TAXES ON SUCH ACTIVITIES AS OCCURRED IN THESE CASES. 
WHATEVER EXEMPTIONS EXIST FROM TAXATION ARISE FROM THE PREVAILING LAW
OF THE VARIOUS STATES.  THE CONSTITUTIONS OF ALABAMA AND PENNSYLVANIA,
WITH SUBSTANTIAL SIMILARITY TO THE EXEMPTION PROVISIONS OF OTHER
CONSTITUTIONS, FORBID THE TAXATION OF LOTS AND BUILDINGS USED
EXCLUSIVELY FOR RELIGIOUS WORSHIP.  ALABAMA (1901), SEC. 91;
PENNSYLVANIA (1874), ART. IX, SEC. 1.  THESE ARE THE ONLY EXEMPTIONS OF
THE PRESS OR CHURCH FROM TAXATION.  WE FIND NOTHING MORE APPLICABLE TO
OUR PROBLEM IN THE OTHER CONSTITUTIONS.  SURELY THIS UNANIMITY OF
SPECIFIC STATE ACTION ON EXEMPTIONS OF RELIGIOUS BODIES FROM TAXES
WOULD NOT HAVE OCCURRED THROUGHOUT OUR HISTORY, IF IT HAD BEEN
CONCEIVED THAT THE GENIUS OF OUR INSTITUTIONS, AS EXPRESSED IN THE
FIRST AMENDMENT, WAS INCOMPATIBLE WITH THE TAXATION OF CHURCH OR
PRESS. 

NOR DO WE UNDERSTAND THAT THE COURT NOW MAINTAINS THAT THE FEDERAL
CONSTITUTION FREES PRESS OR RELIGION OF ANY TAX EXCEPT SUCH
OCCUPATIONAL TAXES AS THOSE HERE LEVIED.  INCOME TAXES, AD VALOREM
TAXES, EVEN OCCUPATIONAL TAXES ARE PRESUMABLY VALID, SAVE ONLY A
LICENSE TAX ON SALES OF RELIGIOUS BOOKS.  CAN IT BE THAT THE
CONSTITUTION PERMITS A TAX ON THE PRINTING PRESSES AND THE GROSS INCOME
OF A METROPOLITAN NEWSPAPER  FN15  BUT DENIES THE RIGHT TO LAY AN
OCCUPATIONAL TAX ON THE DISTRIBUTORS OF THE SAME PAPERS?  DOES THE
EXEMPTION APPLY TO BOOKSELLERS OR DISTRIBUTORS OF MAGAZINES OR ONLY TO
RELIGIOUS PUBLICATIONS?  AND, IF THE LATTER, TO WHAT DISTRIBUTORS?  OR
TO WHAT BOOKS?  OR IS THIS COURT SAYING THAT A RELIGIOUS PRACTICE OF
BOOK DISTRIBUTION IS FREE FROM TAXATION BECAUSE A STATE CANNOT PROHIBIT
THE "FREE EXERCISE THEREOF" AND A NEWSPAPER IS SUBJECT TO THE SAME TAX
EVEN THOUGH THE SAME CONSTITUTIONAL AMENDMENT SAYS THE STATE CANNOT
ABRIDGE THE FREEDOM OF THE PRESS?  IT HAS NEVER BEEN THOUGHT BEFORE
THAT FREEDOM FROM TAXATION WAS A PERQUISITE ATTACHING TO THE PRIVILEGES
OF THE FIRST AMENDMENT.  THE NATIONAL GOVERNMENT GRANTS EXEMPTIONS TO
MINISTERS AND CHURCHES BECAUSE IT WISHES TO DO SO, NOT BECAUSE THE
CONSTITUTION COMPELS.  INTERNAL REVENUE CODE, SECS. 22(B)(6), 101(6),
812(D), 1004(A)(2)(B).  WHERE CAMP MEETINGS OR REVIVALS CHARGE
ADMISSIONS, A FEDERAL TAX WOULD APPLY, IF CONGRESS HAD NOT GRANTED
FREEDOM FROM THE EXACTION.  ID., SEC. 1701. 

IT IS URGED THAT SUCH A TAX AS THIS MAY BE USED READILY TO RESTRICT
THE DISSEMINATION OF IDEAS.  THIS MUST BE CONCEDED BUT THE POSSIBILITY
OF MISUSE DOES NOT MAKE A TAX UNCONSTITUTIONAL.  NO ABUSE IS CLAIMED
HERE.  THE ORDINANCES IN SOME OF THESE CASES ARE THE GENERAL OCCUPATION
LICENSE TYPE COVERING MANY BUSINESSES.  IN THE JEANNETTE PROSECUTIONS,
THE ORDINANCE INVOLVED LAYS THE USUAL TAX ON CANVASSING OR SOLICITING
SALES OF GOODS, WARES AND MERCHANDISE.  IT WAS PASSED IN 1898.  EVERY
POWER OF TAXATION OR REGULATION IS CAPABLE OF ABUSE.  EACH ONE, TO SOME
EXTENT, PROHIBITS THE FREE EXERCISE OF RELIGION AND ABRIDGES THE
FREEDOM OF THE PRESS, BUT THAT IS HARDLY A REASON FOR DENYING THE
POWER.  IF THE TAX IS USED OPPRESSIVELY, THE LAW WILL PROTECT THE
VICTIMS OF SUCH ACTION.    THIS DECISION FORCES A TAX SUBSIDY
NOTWITHSTANDING OUR ACCEPTED BELIEF IN THE SEPARATION OF CHURCH AND
STATE.  INSTEAD OF ALL BEARING EQUALLY THE BURDENS OF GOVERNMENT, THIS
COURT NOW FASTENS UPON THE COMMUNITIES THE ENTIRE COST OF POLICING THE
SALES OF RELIGIOUS LITERATURE.  THAT THE BURDEN MAY BE HEAVY IS SHOWN
BY THE RECORD IN THE JEANNETTE CASES.  THERE ARE ONLY EIGHT
PROSECUTIONS, BUT ONE HUNDRED AND FOUR WITNESSES SOLICITED IN JEANNETTE
THE DAY OF THE ARRESTS.  THEY HAD BEEN REQUESTED BY THE AUTHORITIES TO
AWAIT THE OUTCOME OF A TEST CASE BEFORE CONTINUING THEIR CANVASSING. 
THE DISTRIBUTORS OF RELIGIOUS LITERATURE, POSSIBLY OF ALL INFORMATORY
PUBLICATIONS, BECOME TODAY PRIVILEGED TO CARRY ON THEIR OCCUPATIONS
WITHOUT CONTRIBUTING THEIR SHARE TO THE SUPPORT OF THE GOVERNMENT WHICH
PROVIDES THE OPPORTUNITY FOR THE EXERCISE OF THEIR LIBERTIES. 

NOR DO WE THINK IT CAN BE SAID, PROPERLY, THAT THESE SALES OF
RELIGIOUS BOOKS ARE RELIGIOUS EXERCISES.  THE OPINION OF THE COURT IN
THE JEANNETTE CASES EMPHASIZES FOR THE FIRST TIME THE ARGUMENT THAT THE
SALE OF BOOKS AND PAMPHLETS IS IN ITSELF A RELIGIOUS PRACTICE.  THE
COURT SAYS THE WITNESSES "SPREAD THEIR INTERPRETATIONS OF THE BIBLE AND
THEIR RELIGIOUS BELIEFS LARGELY THROUGH THE HAND DISTRIBUTION OF
LITERATURE BY FULL OR PART TIME WORKERS."  "THE HAND DISTRIBUTION OF
RELIGIOUS TRACTS IS AN AGE-OLD FORM OF MISSIONARY EVANGELISM - AS OLD
AS THE HISTORY OF PRINTING PRESSES."  "IT IS MORE THAN PREACHING; IT IS
MORE THAN DISTRIBUTION OF RELIGIOUS LITERATURE.  IT IS A COMBINATION OF
BOTH.  ITS PURPOSE IS AS EVANGELICAL AS THE REVIVAL MEETING.  THIS FORM
OF RELIGIOUS ACTIVITY OCCUPIES THE SAME HIGH ESTATE UNDER THE FIRST
AMENDMENT AS DO WORSHIP IN THE CHURCHES AND PREACHING FROM THE
PULPITS."  "THOSE WHO CAN TAX THE EXERCISE OF THIS RELIGIOUS PRACTICE
CAN MAKE ITS EXERCISE SO COSTLY AS TO DEPRIVE IT OF THE RESOURCES
NECESSARY FOR ITS MAINTENANCE."  "THE JUDGMENT IN JONES V. OPELIKA HAS
THIS DAY BEEN VACATED.  FREED FROM THAT CONTROLLING PRECEDENT, WE CAN
RESTORE TO THEIR HIGH, CONSTITUTIONAL POSITION THE LIBERTIES OF
ITINERANT EVANGELISTS WHO DISSEMINATE THEIR RELIGIOUS BELIEFS AND THE
TENETS OF THEIR FAITH THROUGH DISTRIBUTION OF LITERATURE."  THE RECORD
SHOWS THAT BOOKS ENTITLED "CREATION" AND "SALVATION," AS WELL AS
BIBLES, WERE OFFERED FOR SALE.  WE SHALL ASSUME THE FIRST TWO
PUBLICATIONS, ALSO, ARE RELIGIOUS BOOKS.  CERTAINLY THERE CAN BE NO
DISSENT FROM THE STATEMENT THAT SELLING RELIGIOUS BOOKS IS AN AGE-OLD
PRACTICE, OR THAT IT IS EVANGELISM IN THE SENSE THAT THE DISTRIBUTORS
HOPE THE READERS WILL BE SPIRITUALLY BENEFITED.  THAT DOES NOT CARRY US
TO THE CONVICTION, HOWEVER, THAT WHEN DISTRIBUTION OF RELIGIOUS BOOKS
IS MADE AT A PRICE, THE ITINERANT COLPORTEUR IS PERFORMING A RELIGIOUS
RITE, IS WORSHIPPING HIS CREATOR IN HIS WAY.  MANY SECTS PRACTICE
HEALING THE SICK AS AN EVIDENCE OF THEIR RELIGIOUS FAITH OR MAINTAIN
ORPHANAGES OR HOMES FOR THE AGED OR TEACH THE YOUNG.  THESE ARE, OF
COURSE, IN A SENSE, RELIGIOUS PRACTICES BUT HARDLY SUCH EXAMPLES OF
RELIGIOUS RITES AS ARE ENCOMPASSED BY THE PROHIBITION AGAINST THE FREE
EXERCISE OF RELIGION. 

AND EVEN IF THE DISTRIBUTION OF RELIGIOUS BOOKS WAS A RELIGIOUS
PRACTICE PROTECTED FROM REGULATION BY THE FIRST AMENDMENT, CERTAINLY
THE AFFIXATION OF A PRICE FOR THE ARTICLES WOULD DESTROY THE SACRED
CHARACTER OF THE TRANSACTION.  THE EVANGELIST BECOMES ALSO A BOOK
AGENT. 

THE RITES WHICH ARE PROTECTED BY THE FIRST AMENDMENT ARE IN ESSENCE
SPIRITUAL - PRAYER, MASS, SERMONS, SACRAMENT - NOT SALES OF RELIGIOUS
GOODS.  THE CARD FURNISHED EACH WITNESS TO IDENTIFY HIM AS AN ORDAINED
MINISTER DOES NOT GO SO FAR AS TO SAY THE SALE IS A RITE.  IT STATES
ONLY THAT THE WITNESSES WORSHIP BY EXHIBITING TO PEOPLE "THE MESSAGE OF
SAID GOSPEL IN PRINTED FORM, SUCH AS THE BIBLE, BOOKS, BOOKLETS AND
MAGAZINES, AND THUS AFFORD THE PEOPLE THE OPPORTUNITY OF LEARNING OF
GOD'S GRACIOUS PROVISION FOR THEM."  ON THE BACK OF THE CARD APPEARS:
"YOU MAY CONTRIBUTE TWENTY-FIVE CENTS TO THE LORD'S WORK AND RECEIVE A
COPY OF THIS BEAUTIFUL BOOK."  THE SALE OF THESE RELIGIOUS BOOKS HAS,
WE THINK, RELATION TO THEIR RELIGIOUS EXERCISES, SIMILAR TO THE
"INFORMATION MARCH," SAID BY THE WITNESSES TO BE ONE OF THEIR "WAYS OF
WORSHIP" AND BY THIS COURT TO BE SUBJECT TO REGULATION BY LICENSE IN
COX V. NEW HAMPSHIRE, 312 U.S. 569, 572, 573, 576. 

THE ATTEMPTED ANALOGY IN THE DISSENTING OPINION IN JONES V. OPELIKA,
316 U.S. 584, 609, 611, WHICH NOW BECOMES THE DECISION OF THIS COURT,
BETWEEN THE FORBIDDEN BURDEN OF A STATE TAX FOR THE PRIVILEGE OF
ENGAGING IN INTERSTATE COMMERCE AND A STATE TAX ON THE PRIVILEGE OF
ENGAGING IN THE DISTRIBUTION OF RELIGIOUS LITERATURE IS WHOLLY
IRRELEVANT.  A STATE TAX ON THE PRIVILEGE OF ENGAGING IN INTERSTATE
COMMERCE IS HELD INVALID BECAUSE THE REGULATION OF COMMERCE BETWEEN THE
STATES HAS BEEN DELEGATED TO THE FEDERAL GOVERNMENT.  THIS GRANT
INCLUDES THE NECESSARY MEANS TO CARRY THE GRANT INTO EFFECT AND FORBIDS
STATE BURDENS WITHOUT CONGRESSIONAL CONSENT.  FN16  IT IS NOT THE POWER
TO TAX INTERSTATE COMMERCE WHICH IS INTERDICTED, BUT THE EXERCISE OF
THAT POWER BY AN UNAUTHORIZED SOVEREIGN, THE INDIVIDUAL STATE. 
ALTHOUGH THE FOSTERING OF COMMERCE WAS ONE OF THE CHIEF PURPOSES FOR
ORGANIZING THE PRESENT GOVERNMENT, THAT COMMERCE MAY BE BURDENED WITH A
TAX BY THE UNITED STATES.  INTERNAL REVENUE CODE, SEC. 3469.  COMMERCE
MUST PAY ITS WAY.  IT IS NOT EXEMPT FROM ANY TYPE OF TAXATION IF
IMPOSED BY AN AUTHORIZED AUTHORITY.  THE COURT NOW HOLDS THAT THE FIRST
AMENDMENT WHOLLY EXEMPTS THE CHURCH AND PRESS FROM A PRIVILEGE TAX,
PRESUMABLY BY THE NATIONAL AS WELL AS THE STATE GOVERNMENT. 

THE LIMITATIONS OF THE CONSTITUTION ARE NOT MAXIMS OF SOCIAL WISDOM
BUT DEFINITE CONTROLS ON THE LEGISLATIVE PROCESS.  WE ARE DEALING WITH
POWER, NOT ITS ABUSE.  THIS LATE WITHDRAWAL OF THE POWER OF TAXATION
OVER THE DISTRIBUTION ACTIVITIES OF THOSE COVERED BY THE FIRST
AMENDMENT FIXES WHAT SEEMS TO US AN UNFORTUNATE PRINCIPLE OF TAX
EXEMPTION, CAPABLE OF INDEFINITE EXTENSION.  WE HAD THOUGHT THAT SUCH
AN EXEMPTION REQUIRED A CLEAR AND CERTAIN GRANT.  THIS WE DO NOT FIND
IN THE LANGUAGE OF THE FIRST AND FOURTEENTH AMENDMENTS.  WE ARE
THEREFORE OF THE OPINION THE JUDGMENTS BELOW SHOULD BE AFFIRMED. 

FN1  THE COURT IN THE MURDOCK CASE ANALYZES THE CONTENTION THAT THE
SALES TECHNIQUE PARTAKES OF COMMERCIALISM AND SAYS:  "IT IS A
DISTORTION OF THE FACTS OF RECORD TO DESCRIBE THEIR ACTIVITIES AS THE
OCCUPATION OF SELLING BOOKS AND PAMPHLETS.  AND THE PENNSYLVANIA COURT
DID NOT REST THE JUDGMENTS OF CONVICTION ON THAT BASIS, THOUGH IT DID
FIND THAT PETITIONERS 'SOLD' THE LITERATURE."  THE STATE COURT, IN ITS
OPINION, 149 PA. SUPER.  CT. 175, 27 A.2D 666, 667, STATED THE
APPLICABLE ORDINANCE AS FORBIDDING SALES OF MERCHANDISE BY CANVASSING
WITHOUT A LICENSE, AND SAID THAT THE EVIDENCE ESTABLISHED ITS VIOLATION
BY SELLING "TWO BOOKS ENTITLED 'SALVATION' AND 'CREATION' RESPECTIVELY,
AND CERTAIN LEAFLETS OR PAMPHLETS, ALL PUBLISHED BY THE WATCH TOWER
BIBLE AND TRACT SOCIETY OF BROOKLYN, N.Y., FOR WHICH THE SOCIETY FIXED
TWENTY-FIVE CENTS EACH AS THE PRICE FOR THE BOOKS AND FIVE CENTS EACH
AS THE PRICE OF THE LEAFLETS.  DEFENDANTS PAID TWENTY CENTS EACH FOR
THE BOOKS, UNLESS THEY DEVOTED THEIR WHOLE TIME TO THE WORK, IN WHICH
CASE THEY PAID FIVE CENTS EACH FOR THE BOOKS THEY SOLD AT TWENTY-FIVE
CENTS.  SOME OF THE WITNESSES SPOKE OF 'CONTRIBUTIONS' BUT THE EVIDENCE
JUSTIFIED A FINDING THAT THEY SOLD THE BOOKS AND PAMPHLETS." 

THE STATE COURT THEN REPEATED WITH APPROVAL FROM ONE OF ITS FORMER
DECISIONS THE STATEMENTS: "THE CONSTITUTIONAL RIGHT OF FREEDOM OF
WORSHIP DOES NOT GUARANTEE ANYBODY THE RIGHT TO SELL ANYTHING FROM
HOUSE TO HOUSE OR IN BUILDINGS, BELONGING TO, OR IN THE OCCUPANCY OF,
OTHER PERSONS."  "  ...  WE DO NOT ACCEDE TO HIS CONTENTION ON THE ORAL
ARGUMENT THAT THE FEDERAL DECISIONS RELIED UPON BY HIM GO SO FAR AS TO
RULE THAT THE CONSTITUTIONAL GUARANTY OF A FREE PRESS FORBIDS DEALERS
IN BOOKS AND PRINTED MATTER BEING SUBJECTED TO OUR STATE MERCANTILE
LICENSE TAX OR THE FEDERAL INCOME TAX AS TO SUCH SALES, ALONG WITH
DEALERS IN OTHER MERCHANDISE."  PITTSBURGH V. RUFFNER, 134 PA. SUPER. 
CT. 192, 199, 202, 4 A.2D 224.  AND AFTER FURTHER DISCUSSION OF
SELLING, THE CONVICTION OF THE WITNESSES WAS AFFIRMED.  IT CAN HARDLY
BE SAID, WE THINK, THAT THE STATE COURT DID NOT TREAT THE JEANNETTE
CANVASSERS AS ENGAGED IN A COMMERCIAL ACTIVITY OR OCCUPATION AT THE
TIME OF THEIR ARRESTS. 

FN2  WHITNEY V. CALIFORNIA, 274 U.S. 357, 371, AND THE CONCURRING
OPINION, 373; REYNOLDS V. UNITED STATES, 98 U.S. 145, 166; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303; COX V. NEW HAMPSHIRE, 312 U.S. 569,
574, 576. 

FN3  JOURNAL OF THE CONVENTION, 369; II FARRAND, THE RECORDS OF THE
FEDERAL CONVENTION, 611, 616-8, 620.  CF. MCMASTER & STONE,
PENNSYLVANIA AND THE FEDERAL CONSTITUTION, 251-3. 

FN4  I ELLIOT'S DEBATES ON THE FEDERAL CONSTITUTION (1876) 319 ET
SEQ. IN RATIFYING THE CONSTITUTION THE FOLLOWING DECLARATIONS WERE
MADE:  NEW HAMPSHIRE, P. 326, "XI.  CONGRESS SHALL MAKE NO LAWS
TOUCHING RELIGION, OR TO INFRINGE THE RIGHTS OF CONSCIENCE."  VIRGINIA,
P. 327, " ...  NO RIGHT, OF ANY DENOMINATION, CAN BE CANCELLED,
ABRIDGED, RESTRAINED, OR MODIFIED, BY THE CONGRESS, BY THE SENATE OR
HOUSE OF REPRESENTATIVES, ACTING IN ANY CAPACITY, BY THE PRESIDENT, OR
ANY DEPARTMENT OR OFFICER OF THE UNITED STATES, EXCEPT IN THOSE
INSTANCES IN WHICH POWER IS GIVEN BY THE CONSTITUTION FOR THOSE
PURPOSES; AND THAT, AMONG OTHER ESSENTIAL RIGHTS, THE LIBERTY OF
CONSCIENCE, AND OF THE PRESS, CANNOT BE CANCELLED, ABRIDGED,
RESTRAINED, OR MODIFIED, BY ANY AUTHORITY OF THE UNITED STATES."  NEW
YORK, P. 328, "THAT THE FREEDOM OF THE PRESS OUGHT NOT TO BE VIOLATED
OR RESTRAINED."  AFTER THE SUBMISSION OF THE AMENDMENTS, RHODE ISLAND
RATIFIED AND DECLARED, PP. 334, 335, "IV.  THAT RELIGION, OR THE DUTY
WHICH WE OWE TO OUR CREATOR, AND THE MANNER OF DISCHARGING IT, CAN BE
DIRECTED ONLY BY REASON AND CONVICTION, AND NOT BY FORCE AND VIOLENCE;
AND THEREFORE ALL MEN HAVE A NATURAL, EQUAL, AND UNALIENABLE RIGHT TO
THE EXERCISE OF RELIGION ACCORDING TO THE DICTATES OF CONSCIENCE; AND
THAT NO PARTICULAR RELIGIOUS SECT OR SOCIETY OUGHT TO BE FAVORED OR
ESTABLISHED, BY LAW, IN PREFERENCE TO OTHERS.  ...  XVI.  THAT THE
PEOPLE HAVE A RIGHT TO FREEDOM OF SPEECH, AND OF WRITING AND PUBLISHING
THEIR SENTIMENTS.  THAT FREEDOM OF THE PRESS IS ONE OF THE GREATEST
BULWARKS OF LIBERTY, AND OUGHT NOT TO BE VIOLATED." 

FN5  THE ARTICLES OF CONFEDERATION HAD REFERENCES TO RELIGION AND
FREE SPEECH: 

"ARTICLE III.  THE SAID STATES HEREBY SEVERALLY ENTER INTO A FIRM
LEAGUE OF FRIENDSHIP WITH EACH OTHER, FOR THEIR COMMON DEFENCE, THE
SECURITY OF THEIR LIBERTIES, AND THEIR MUTUAL AND GENERAL WELFARE,
BINDING THEMSELVES TO ASSIST EACH OTHER, AGAINST ALL FORCE OFFERED TO,
OR ATTACKS MADE UPON THEM, OR ANY OF THEM, ON ACCOUNT OF RELIGION,
SOVEREIGNTY, TRADE, OR ANY OTHER PRETENCE WHATEVER." 

"ARTICLE V. ...  FREEDOM OF SPEECH AND DEBATE IN CONGRESS SHALL NOT
BE IMPEACHED OR QUESTIONED IN ANY COURT, OR PLACE OUT OF CONGRESS, AND
THE MEMBERS OF CONGRESS SHALL BE PROTECTED IN THEIR PERSONS FROM
ARRESTS AND IMPRISONMENTS, DURING THE TIME OF THEIR GOING TO AND FROM,
AND ATTENDANCE ON CONGRESS, EXCEPT FOR TREASON, FELONY, OR BREACH OF
THE PEACE." 

THE STATUTE OF RELIGIOUS FREEDOM WAS PASSED IN VIRGINIA IN 1785.  THE
SUBSTANCE WAS IN PARAGRAPH II:  "BE IT ENACTED BY THE GENERAL ASSEMBLY,
THAT NO MAN SHALL BE COMPELLED TO FREQUENT OR SUPPORT ANY RELIGIOUS
WORSHIP, PLACE, OR MINISTRY WHATSOEVER, NOR SHALL BE ENFORCED,
RESTRAINED, MOLESTED, OR BURTHENED IN HIS BODY OR GOODS, NOR SHALL
OTHERWISE SUFFER ON ACCOUNT OF HIS RELIGIOUS OPINIONS OR BELIEF; BUT
THAT ALL MEN SHALL BE FREE TO PROFESS, AND BY ARGUMENT TO MAINTAIN,
THEIR OPINION IN MATTERS OF RELIGION, AND THAT THE SAME SHALL IN NO
WISE DIMINISH, ENLARGE, OR AFFECT THEIR CIVIL CAPACITIES."  12 HENING
STATUTES OF VA. 86. 

A NUMBER OF THE STATES' CONSTITUTIONS AT THE TIME OF THE ADOPTION OF
THE BILL OF RIGHTS CONTAINED PROVISIONS AS TO A FREE PRESS: 

GEORGIA, CONSTITUTION OF 1777, ART. LXI.  "FREEDOM OF THE PRESS AND
TRIAL BY JURY TO REMAIN INVIOLATE FOREVER."  I POORE, FEDERAL AND STATE
CONSTITUTIONS 383. 

MARYLAND, CONSTITUTION OF 1776, DECLARATION OF RIGHTS, ART. XXXVIII. 
"THAT THE LIBERTY OF THE PRESS OUGHT TO BE INVIOLABLY PRESERVED."  ID.
820. 

MASSACHUSETTS, CONSTITUTION OF 1780, PART FIRST, ART. XVI.  "THE
LIBERTY OF THE PRESS IS ESSENTIAL TO THE SECURITY OF FREEDOM IN A
STATE; IT OUGHT NOT, THEREFORE, TO BE RESTRAINED IN THIS
COMMONWEALTH."  ID., 959. 

NEW HAMPSHIRE, CONSTITUTION OF 1784, PART 1, ART. XXII.  "THE LIBERTY
OF THE PRESS IS ESSENTIAL TO THE SECURITY OF FREEDOM IN A STATE; IT
OUGHT, THEREFORE, TO BE INVIOLABLY PRESERVED."  II POORE, ID., 1282. 

NORTH CAROLINA, CONSTITUTION OF 1776, DECLARATION OF RIGHTS, ART. XV.
"THAT THE FREEDOM OF THE PRESS IS ONE OF THE GREAT BULWARKS OF
LIBERTY, AND THEREFORE OUGHT NEVER TO BE RESTRAINED."  ID., 1410. 

PENNSYLVANIA, CONSTITUTION OF 1776, DECLARATION OF RIGHTS, ART. XII. 
"THAT THE PEOPLE HAVE A RIGHT TO FREEDOM OF SPEECH, AND OF WRITING, AND
PUBLISHING THEIR SENTIMENTS; THEREFORE THE FREEDOM OF THE PRESS OUGHT
NOT TO BE RESTRAINED."  ID., 1542. 

VIRGINIA, BILL OF RIGHTS, 1776, SEC. 12.  "THAT THE FREEDOM OF THE
PRESS IS ONE OF THE GREAT BULWARKS OF LIBERTY, AND CAN NEVER BE
RESTRAINED BUT BY DESPOTIC GOVERNMENTS."  ID., 1909.    FN6  FOR
EXAMPLE, THE FIRST AMENDMENT AS IT PASSED THE HOUSE OF REPRESENTATIVES
ON MONDAY, AUGUST 24, 1789, READ AS FOLLOWS: 

"CONGRESS SHALL MAKE NO LAW ESTABLISHING RELIGION OR PROHIBITING THE
FREE EXERCISE THEREOF, NOR SHALL THE RIGHTS OF CONSCIENCE BE
INFRINGED. 

"THE FREEDOM OF SPEECH, AND OF THE PRESS, AND THE RIGHT OF THE PEOPLE
PEACEABLY TO ASSEMBLE, AND CONSULT FOR THEIR COMMON GOOD, AND TO APPLY
TO THE GOVERNMENT FOR A REDRESS OF GRIEVANCES, SHALL NOT BE
INFRINGED."  RECORDS OF THE UNITED STATES SENATE, 1A-C2(U.S. NAT.
ARCHIVES). 

APPARENTLY WHEN THE PROPOSED AMENDMENTS WERE PASSED BY THE SENATE ON
SEPTEMBER 9, 1789, WHAT IS NOW THE FIRST AMENDMENT READ AS FOLLOWS: 

"CONGRESS SHALL MAKE NO LAW ESTABLISHING ARTICLES OF FAITH, OR A MODE
OF WORSHIP, OR PROHIBITING THE FREE EXERCISE OF RELIGION, OR ABRIDGING
THE FREEDOM OF SPEECH, OR OF THE PRESS, OR THE RIGHT OF THE PEOPLE
PEACEABLY TO ASSEMBLE, AND TO PETITION TO THE GOVERNMENT FOR A REDRESS
OF GRIEVANCES."  ID. 

FN7 EGBERT BENSON WAS THE FIRST ATTORNEY GENERAL OF NEW YORK, A
MEMBER OF THE CONTINENTAL CONGRESS AND OF THE NEW YORK CONVENTION FOR
RATIFICATION OF THE CONSTITUTION.  BIOGRAPHICAL DIRECTORY OF THE
AMERICAN CONGRESS, 694. 

FN8  "AND BE IT ENACTED BY THE AUTHORITY AFORESAID, THAT THERE SHALL
BE RAISED, LEVIED, COLLECTED AND PAID, TO AND FOR THE USE OF HER
MAJESTY, HER HEIRS AND SUCCESSORS, FOR AND UPON ALL BOOKS AND PAPERS
COMMONLY CALLED PAMPHLETS, AND FOR AND UPON ALL NEWS PAPERS, OR PAPERS
CONTAINING PUBLICK NEWS, INTELLIGENCE OR OCCURRENCES, WHICH SHALL, AT
ANY TIME OR TIMES WITHIN OR DURING THE TERM LAST MENTIONED, BE PRINTED
IN GREAT BRITAIN, TO BE DISPERSED AND MADE PUBLICK, AND FOR AND UPON
SUCH ADVERTISEMENTS AS ARE HEREIN AFTER MENTIONED, THE RESPECTIVE
DUTIES FOLLOWING; THAT IS TO SAY, 

"FOR EVERY SUCH PAMPHLET OR PAPER CONTAINED IN HALF A SHEET, OR ANY
LESSER PIECE OF PAPER, SO PRINTED, THE SUM OF ONE HALF-PENNY STERLING. 

"FOR EVERY SUCH PAMPHLET OR PAPER (BEING LARGER THAN HALF A SHEET,
AND NOT EXCEEDING ONE WHOLE SHEET) SO PRINTED, A DUTY AFTER THE RATE OF
ONE PENNY STERLING FOR EVERY PRINTED COPY THEREOF. 

"AND FOR EVERY SUCH PAMPHLET OR PAPER, BEING LARGER THAN ONE WHOLE
SHEET, AND NOT EXCEEDING SIX SHEETS IN OCTAVO, OR IN A LESSER PAGE, OR
NOT EXCEEDING TWELVE SHEETS IN QUARTO, OR TWENTY SHEETS IN FOLIO, SO
PRINTED, A DUTY AFTER THE RATE OF TWO SHILLINGS STERLING FOR EVERY
SHEET OF ANY KIND OF PAPER WHICH SHALL BE CONTAINED IN ONE PRINTED COPY
THEREOF. 

"AND FOR EVERY ADVERTISEMENT TO BE CONTAINED IN THE LONDON GAZETTE,
OR ANY OTHER PRINTED PAPER, SUCH PAPER BEING DISPERSED OR MADE PUBLICK
WEEKLY, OR OFTNER, THE SUM OF TWELVE PENCE STERLING." 

FN9  STEVENS, SOURCES OF THE CONSTITUTION, 221, NOTE 2; STEWART,
LENNOX AND THE TAXES ON KNOWLEDGE, 15 SCOTTISH HIST. REV. 322, 326;
MCMASTER & STONE, PENNSYLVANIA AND THE FEDERAL CONSTITUTION, 181;
GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 248. 

FN10  CF. COLLET, TAXES ON KNOWLEDGE; CHAFEE, FREE SPEECH IN THE
UNITED STATES, 17, N. 33. 

FN11  GITLOW V. NEW YORK (1925), 268 U.S. 652, 666; NEAR V.
MINNESOTA, 283 U.S. 697, 707; CANTWELL V. CONNECTICUT, 310 U.S. 296,
307. 

FN12  PERMOLI V. FIRST MUNICIPALITY, 3 HOW.  589, 609; BARRON V.
BALTIMORE, 7 PET. 243, 247. 

FN13  FOR THE STATE PROVISIONS ON EXPRESSION AND RELIGION, SEE 2
COOLEY.  CONSTITUTIONAL LIMITATIONS (8TH ED.)  876, 965; III
CONSTITUTIONS OF THE STATES, NEW YORK STATE CONST. CONV.  COMMITTEE
1938. 

FN14  TO THIS PROFESSOR CHAFEE ADDS THE RIGHT TO CRITICIZE THE
GOVERNMENT.  FREE SPEECH IN THE UNITED STATES (1941) 18 ET SEQ. CF. 2
COOLEY'S CONSTITUTIONAL LIMITATIONS (8TH ED.)  886. 

FN15  GIRAGI V. MOORE, 301 U.S. 670; 48 ARIZ. 33; 49 ARIZ. 74. 

FN16  BROWN V. MARYLAND, 12 WHEAT.  419, 445, 448; KENTUCKY WHIP &
COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299 U.S. 334, 350; GWIN, WHITE &
PRINCE, INC. V. HENNEFORD, 305 U.S. 434, 438; PUGET SOUND CO. V. TAX
COMMISSION, 302 U.S. 90. 

MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER, AND MR. JUSTICE JACKSON
JOIN IN THIS DISSENT.  MR. JUSTICE JACKSON HAS STATED ADDITIONAL
REASONS FOR DISSENT IN HIS CONCURRENCE IN DOUGLAS V. JEANNETTE, POST,
P. 166. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

WHILE I WHOLLY AGREE WITH THE VIEWS EXPRESSED BY MR. JUSTICE REED,
THE CONTROVERSY IS OF SUCH A NATURE AS TO LEAD ME TO ADD A FEW WORDS. 

A TAX CAN BE A MEANS FOR RAISING REVENUE, OR A DEVICE FOR REGULATING
CONDUCT, OR BOTH.  CHALLENGE TO THE CONSTITUTIONAL VALIDITY OF A TAX
MEASURE REQUIRES THAT IT BE ANALYZED AND JUDGED IN ALL ITS ASPECTS.  WE
MUST THEREFORE DISTINGUISH BETWEEN THE QUESTIONS THAT ARE BEFORE US IN
THESE CASES AND THOSE THAT ARE NOT.  IT IS ALTOGETHER INCORRECT TO SAY
THAT THE QUESTION HERE IS WHETHER A STATE CAN LIMIT THE FREE EXERCISE
OF RELIGION BY IMPOSING BURDENSOME TAXES.  AS THE OPINION OF MY BROTHER
REED DEMONSTRATES, WE HAVE NOT HERE THE QUESTION WHETHER THE TAXES
IMPOSED IN THESE CASES ARE IN PRACTICAL OPERATION AN UNJUSTIFIABLE
CURTAILMENT UPON THE PETITIONERS' UNDOUBTED RIGHT TO COMMUNICATE THEIR
VIEWS TO OTHERS.  NO CLAIM IS MADE THAT THE EFFECT OF THESE TAXES,
EITHER SEPARATELY OR CUMULATIVELY, HAS BEEN, OR IS LIKELY TO BE, TO
RESTRICT THE PETITIONERS' RELIGIOUS PROPAGANDA ACTIVITIES IN ANY
DEGREE.  COUNSEL EXPRESSLY DISCLAIM ANY SUCH CONTENTION.  THEY INSIST
ON ABSOLUTE IMMUNITY FROM ANY KIND OF MONETARY EXACTION FOR THEIR
OCCUPATION.  THEIR CLAIM IS THAT NO TAX, NO MATTER HOW TRIFLING, CAN
CONSTITUTIONALLY BE LAID UPON THE ACTIVITY OF DISTRIBUTING RELIGIOUS
LITERATURE, REGARDLESS OF THE ACTUAL EFFECT OF THE TAX UPON SUCH
ACTIVITY.  THAT IS THE ONLY GROUND UPON WHICH THESE ORDINANCES HAVE
BEEN ATTACKED; THAT IS THE ONLY QUESTION RAISED IN OR DECIDED BY THE
STATE COURTS; AND THAT IS THE ONLY QUESTION PRESENTED TO US.  NO
COMPLAINT IS MADE AGAINST THE SIZE OF THE TAXES.  IF AN APPROPRIATE
CLAIM, INDICATING THAT THE TAXES WERE OPPRESSIVE IN THEIR EFFECT UPON
THE PETITIONERS' ACTIVITIES, HAD BEEN MADE, THE ISSUES HERE WOULD BE
VERY DIFFERENT.  NO SUCH CLAIM HAS BEEN MADE, AND IT WOULD BE
GRATUITOUS TO CONSIDER ITS MERITS. 

NOR HAVE WE OCCASION TO CONSIDER WHETHER THESE MEASURES ARE INVALID
ON THE GROUND THAT THEY UNJUSTLY OR UNREASONABLY DISCRIMINATE AGAINST
THE PETITIONERS.  COUNSEL DO NOT CLAIM, AS INDEED THEY COULD NOT, THAT
THESE ORDINANCES WERE INTENDED TO OR HAVE BEEN APPLIED TO DISCRIMINATE
AGAINST RELIGIOUS GROUPS GENERALLY OR JEHOVAH'S WITNESSES
PARTICULARLY.  NO CLAIM IS MADE THAT THE EFFECT OF THE TAXES IS TO
HINDER OR RESTRICT THE ACTIVITIES OF JEHOVAH'S WITNESSES WHILE OTHER
RELIGIOUS GROUPS, PERHAPS OLDER OR MORE PROSPEROUS, CAN CARRY ON
THEIRS.  THIS QUESTION, TOO, IS NOT BEFORE US. 

IT CANNOT BE SAID THAT THE PETITIONERS ARE CONSTITUTIONALLY EXEMPT
FROM TAXATION MERELY BECAUSE THEY MAY BE ENGAGED IN RELIGIOUS
ACTIVITIES OR BECAUSE SUCH ACTIVITIES MAY CONSTITUTE AN EXERCISE OF A
CONSTITUTIONAL RIGHT.  IT WILL HARDLY BE CONTENDED, FOR EXAMPLE, THAT A
TAX UPON THE INCOME OF A CLERGYMAN WOULD VIOLATE THE BILL OF RIGHTS,
EVEN THOUGH THE TAX IS ULTIMATELY BORNE BY THE MEMBERS OF HIS CHURCH. 
A CLERGYMAN, NO LESS THAN A JUDGE, IS A CITIZEN.  AND NOT ONLY IN TIME
OF WAR WOULD NEITHER WILLINGLY ENJOY IMMUNITY FROM THE OBLIGATIONS OF
CITIZENSHIP.  IT IS ONLY FAIR THAT HE ALSO WHO PREACHES THE WORD OF GOD
SHOULD SHARE IN THE COSTS OF THE BENEFITS PROVIDED BY GOVERNMENT TO HIM
AS WELL AS TO THE OTHER MEMBERS OF THE COMMUNITY.  AND SO, NO ONE WOULD
SUGGEST THAT A CLERGYMAN WHO USES AN AUTOMOBILE OR THE TELEPHONE IN
CONNECTION WITH HIS WORK THEREBY GAINS A CONSTITUTIONAL EXEMPTION FROM
TAXES LEVIED UPON THE USE OF AUTOMOBILES OR UPON TELEPHONE CALLS. 
EQUALLY ALIEN IS IT TO OUR CONSTITUTIONAL SYSTEM TO SUGGEST THAT THE
CONSTITUTION OF THE UNITED STATES EXEMPTS CHURCH-HELD LANDS FROM STATE
TAXATION.  PLAINLY, A TAX MEASURE IS NOT INVALID UNDER THE FEDERAL
CONSTITUTION MERELY BECAUSE IT FALLS UPON PERSONS ENGAGED IN ACTIVITIES
OF A RELIGIOUS NATURE. 

NOR CAN A TAX BE INVALIDATED MERELY BECAUSE IT FALLS UPON ACTIVITIES
WHICH CONSTITUTE AN EXERCISE OF A CONSTITUTIONAL RIGHT.  THE FIRST
AMENDMENT OF COURSE PROTECTS THE RIGHT TO PUBLISH A NEWSPAPER OR A
MAGAZINE OR A BOOK.  BUT THE CRUCIAL QUESTION IS - HOW MUCH PROTECTION
DOES THE AMENDMENT GIVE, AND AGAINST WHAT IS THE RIGHT PROTECTED?  IT
IS CERTAINLY TRUE THAT THE PROTECTION AFFORDED THE FREEDOM OF THE PRESS
BY THE FIRST AMENDMENT DOES NOT INCLUDE EXEMPTION FROM ALL TAXATION.  A
TAX UPON NEWSPAPER PUBLISHING IS NOT INVALID SIMPLY BECAUSE IT FALLS
UPON THE EXERCISE OF A CONSTITUTIONAL RIGHT.  SUCH A TAX MIGHT BE
INVALID IF IT INVIDIOUSLY SINGLED OUT NEWSPAPER PUBLISHING FOR BEARING
THE BURDENS OF TAXATION OR IMPOSED UPON THEM IN SUCH WAYS AS TO
ENCROACH ON THE ESSENTIAL SCOPE OF A FREE PRESS.  IF THE COURT COULD
JUSTIFIABLY HOLD THAT THE TAX MEASURES IN THESE CASES WERE VULNERABLE
ON THAT GROUND, I WOULD UNRESERVEDLY AGREE.  BUT THE COURT HAS NOT DONE
SO, AND INDEED COULD NOT. 

THE VICE OF THE ORDINANCES BEFORE US, THE COURT HOLDS, IS THAT THEY
IMPOSE A SPECIAL KIND OF TAX, A "FLAT LICENSE TAX, THE PAYMENT OF WHICH
IS A CONDITION OF THE EXERCISE OF THESE CONSTITUTIONAL PRIVILEGES (TO
ENGAGE IN RELIGIOUS ACTIVITIES)."  BUT THE FACT THAT AN OCCUPATION TAX
IS A "FLAT" TAX CERTAINLY IS NOT ENOUGH TO CONDEMN IT.  A LEGISLATURE
UNDOUBTEDLY CAN TAX ALL THOSE WHO ENGAGE IN AN ACTIVITY UPON AN EQUAL
BASIS.  THE CONSTITUTION CERTAINLY DOES NOT REQUIRE THAT
DIFFERENTIATIONS MUST BE MADE AMONG TAXPAYERS UPON THE BASIS OF THE
SIZE OF THEIR INCOMES OR THE SCOPE OF THEIR ACTIVITIES.  OCCUPATION
TAXES NORMALLY ARE FLAT TAXES, AND THE COURT SURELY DOES NOT MEAN TO
HOLD THAT A TAX IS BAD MERELY BECAUSE ALL TAXPAYERS PURSUING THE VERY
SAME ACTIVITIES AND THEREBY DEMANDING THE SAME GOVERNMENTAL SERVICES
ARE TREATED ALIKE.  NOR, AS I HAVE INDICATED, CAN A TAX BE INVALIDATED
BECAUSE THE EXERCISE OF A CONSTITUTIONAL PRIVILEGE IS CONDITIONED UPON
ITS PAYMENT.  IT DEPENDS UPON THE NATURE OF THE CONDITION THAT IS
IMPOSED, ITS JUSTIFICATION, AND THE EXTENT TO WHICH IT HINDERS OR
RESTRICTS THE EXERCISE OF THE PRIVILEGE. 

AS I READ THE COURT'S OPINION, IT DOES NOT HOLD THAT THE TAXES IN THE
CASES BEFORE US IN FACT DO HINDER OR RESTRICT THE PETITIONERS IN
EXERCISING THEIR CONSTITUTIONAL RIGHTS.  IT HOLDS THAT "THE POWER TO
TAX THE EXERCISE OF A PRIVILEGE IS THE POWER TO CONTROL OR SUPPRESS ITS
ENJOYMENT."  THIS ASSUMES THAT BECAUSE THE TAXING POWER EXERTED IN
MAGNANO CO. V. HAMILTON, 292 U.S. 40, THE WELL-KNOWN OLEOMARGARINE TAX
CASE, MAY HAVE HAD THE EFFECT OF "CONTROLLING" OR "SUPPRESSING" THE
ENJOYMENT OF A PRIVILEGE AND STILL WAS SUSTAINED BY THIS COURT, AND
BECAUSE ALL EXERTIONS OF THE TAXING POWER MAY HAVE THAT EFFECT, IF
PERCHANCE A PARTICULAR EXERCISE OF THE TAXING POWER DOES HAVE THAT
EFFECT, IT WOULD HAVE TO BE SUSTAINED UNDER OUR RULING IN THE MAGNANO
CASE. 

THE POWER TO TAX, LIKE ALL POWERS OF GOVERNMENT, LEGISLATIVE,
EXECUTIVE AND JUDICIAL ALIKE, CAN BE ABUSED OR PERVERTED.  THE POWER TO
TAX IS THE POWER TO DESTROY ONLY IN THE SENSE THAT THOSE WHO HAVE POWER
CAN MISUSE IT.  MR. JUSTICE HOLMES DISPOSED OF THIS SMOOTH PHRASE AS A
CONSTITUTIONAL BASIS FOR INVALIDATING TAXES WHEN HE WROTE "THE POWER TO
TAX IS NOT THE POWER TO DESTROY WHILE THIS COURT SITS."  PANHANDLE OIL
CO. V. KNOX, 277 U.S. 218, 223.  THE FACT THAT A POWER CAN BE PERVERTED
DOES NOT MEAN THAT EVERY EXERCISE OF THE POWER IS A PERVERSION OF THE
POWER.  THUS, IF A TAX INDIRECTLY SUPPRESSES OR CONTROLS THE ENJOYMENT
OF A CONSTITUTIONAL PRIVILEGE WHICH A LEGISLATURE CANNOT DIRECTLY
SUPPRESS OR CONTROL, OF COURSE IT IS BAD.  BUT IT IS IRRELEVANT THAT A
TAX CAN SUPPRESS OR CONTROL IF IT DOES NOT.  THE COURT HOLDS THAT
"THOSE WHO CAN TAX THE EXERCISE OF THIS RELIGIOUS PRACTICE CAN MAKE ITS
EXERCISE SO COSTLY AS TO DEPRIVE IT OF RESOURCES NECESSARY FOR ITS
MAINTENANCE."  BUT THIS IS NOT THE SAME AS SAYING THAT "THOSE WHO DO
TAX THE EXERCISE OF THIS RELIGIOUS PRACTICE HAVE MADE ITS EXERCISE SO
COSTLY AS TO DEPRIVE IT OF THE RESOURCES NECESSARY FOR ITS
MAINTENANCE." 

THE COURT COULD NOT PLAUSIBLY MAKE SUCH AN ASSERTION BECAUSE THE
PETITIONERS THEMSELVES DISAVOW ANY CLAIM THAT THE TAXES IMPOSED IN
THESE CASES IMPAIR THEIR ABILITY TO EXERCISE THEIR CONSTITUTIONAL
RIGHTS.  WE CANNOT INVALIDATE THE TAX MEASURES BEFORE US SIMPLY BECAUSE
THERE MAY BE OTHERS, NOT NOW BEFORE US, WHICH ARE OPPRESSIVE IN THEIR
EFFECT.  THE COURT'S OPINION DOES NOT DENY THAT THE ORDINANCES INVOLVED
IN THESE CASES HAVE IN NO WAY DISABLED THE PETITIONERS TO ENGAGE IN
THEIR RELIGIOUS ACTIVITIES.  IT HOLDS ONLY THAT "THOSE WHO CAN TAX THE
PRIVILEGE OF ENGAGING IN THIS FORM OF MISSIONARY EVANGELISM CAN CLOSE
ITS DOORS TO ALL THOSE WHO DO NOT HAVE A FULL PURSE."  I QUITE AGREE
WITH THIS STATEMENT AS AN ABSTRACT PROPOSITION.  THOSE WHO POSSESS THE
POWER TO TAX MIGHT WIELD IT IN TYRANNICAL FASHION.  IT DOES NOT FOLLOW,
HOWEVER, THAT EVERY EXERCISE OF THE POWER IS AN ACT OF TYRANNY, OR THAT
GOVERNMENT SHOULD BE IMPOTENT BECAUSE IT MIGHT BECOME TYRANNICAL.  THE
QUESTION BEFORE US NOW IS WHETHER THESE ORDINANCES HAVE DEPRIVED THE
PETITIONERS OF THEIR CONSTITUTIONAL RIGHTS, NOT WHETHER SOME OTHER
ORDINANCES NOT NOW BEFORE US MIGHT BE ENACTED WHICH MIGHT DEPRIVE THEM
OF SUCH RIGHTS.  TO DENY CONSTITUTIONAL POWER TO SECULAR AUTHORITY
MERELY BECAUSE OF THE POSSIBILITY OF ITS ABUSE IS AS VALID AS TO DENY
THE BASIS OF SPIRITUAL AUTHORITY BECAUSE THOSE IN WHOM IT IS
TEMPORARILY VESTED MAY MISUSE IT. 

THE PETITIONERS SAY THEY ARE IMMUNE AS MUCH FROM A FLAT OCCUPATION
TAX AS FROM A LICENSING FEE PURPORTING EXPLICITLY TO COVER ONLY THE
COSTS OF REGULATION.  THEY RIGHTLY REJECT ANY DISTINCTION BETWEEN THIS
OCCUPATION TAX AND SUCH A LICENSING FEE.  THERE IS NO CONSTITUTIONAL
DIFFERENCE BETWEEN A SO-CALLED REGULATORY FEE AND AN IMPOSITION FOR
PURPOSES OF REVENUE.  THE STATE EXACTS REVENUE TO MAINTAIN THE COSTS OF
GOVERNMENT AS AN ENTIRETY.  FOR CERTAIN PURPOSES AND AT CERTAIN TIMES A
LEGISLATURE MAY EARMARK EXACTIONS TO COVER THE COSTS OF SPECIFIC
GOVERNMENTAL SERVICES.  IN MOST INSTANCES THE REVENUES OF THE STATE ARE
TAPPED FROM MULTITUDINOUS SOURCES FOR A COMMON FUND OUT OF WHICH THE
COSTS OF GOVERNMENT ARE PAID.  AS A MATTER OF PUBLIC FINANCE, IT IS
OFTEN IMPOSSIBLE TO DETERMINE WITH NICETY THE GOVERNMENTAL EXPENDITURES
ATTRIBUTABLE TO PARTICULAR ACTIVITIES.  BUT, IN ANY EVENT, WHETHER
GOVERNMENT COLLECTS REVENUE FOR THE COSTS OF ITS SERVICES THROUGH AN
EARMARKED FUND, OR WHETHER AN APPROXIMATION OF THE COST OF REGULATION
GOES INTO THE GENERAL REVENUES OF GOVERNMENT OUT OF WHICH ALL EXPENSES
ARE BORNE, IS A MATTER OF LEGISLATIVE DISCRETION AND NOT OF
CONSTITUTIONAL DISTINCTION.  JUST SO LONG AS AN OCCUPATION TAX IS NOT
USED AS A COVER FOR DISCRIMINATION AGAINST A CONSTITUTIONALLY PROTECTED
RIGHT OR AS AN UNJUSTIFIABLE BURDEN UPON IT, FROM THE POINT OF VIEW OF
THE CONSTITUTION OF THE UNITED STATES IT CAN MAKE NO DIFFERENCE WHETHER
SUCH A MONEY EXACTION FOR GOVERNMENTAL BENEFITS IS LABELED A REGULATORY
FEE OR A REVENUE MEASURE. 

IT IS STRENUOUSLY URGED THAT THE CONSTITUTION DENIES A CITY THE RIGHT
TO CONTROL THE EXPRESSION OF MEN'S MINDS AND THE RIGHT OF MEN TO WIN
OTHERS TO THEIR VIEWS.  BUT THE COURT IS NOT DIVIDED ON THIS
PROPOSITION.  NO ONE DISPUTES IT.  ALL MEMBERS OF THE COURT ARE EQUALLY
FAMILIAR WITH THE HISTORY THAT LED TO THE ADOPTION OF THE BILL OF
RIGHTS AND ARE EQUALLY ZEALOUS TO ENFORCE THE CONSTITUTIONAL PROTECTION
OF THE FREE PLAY OF THE HUMAN SPIRIT.  ESCAPE FROM THE REAL ISSUE
BEFORE US CANNOT BE FOUND IN SUCH GENERALITIES.  THE REAL ISSUE HERE IS
NOT WHETHER A CITY MAY CHARGE FOR THE DISSEMINATION OF IDEAS BUT
WHETHER THE STATES HAVE POWER TO REQUIRE THOSE WHO NEED ADDITIONAL
FACILITIES TO HELP BEAR THE COST OF FURNISHING SUCH FACILITIES.  STREET
HAWKERS MAKE DEMANDS UPON MUNICIPALITIES THAT INVOLVE THE EXPENDITURE
OF DOLLARS AND CENTS, WHETHER THEY HAWK PRINTED MATTER OR OTHER
THINGS.  AS THE FACTS IN THESE CASES SHOW, THE COST OF MAINTAINING THE
PEACE, THE ADDITIONAL DEMANDS UPON GOVERNMENTAL FACILITIES FOR ASSURING
SECURITY, INVOLVE OUTLAYS WHICH HAVE TO BE MET.  TO SAY THAT THE
CONSTITUTION FORBIDS THE STATES TO OBTAIN THE NECESSARY REVENUE FROM
THE WHOLE OF A CLASS THAT ENJOYS THESE BENEFITS AND FACILITIES, WHEN IN
FACT NO DISCRIMINATION IS SUGGESTED AS BETWEEN PURVEYORS OF PRINTED
MATTER AND PURVEYORS OF OTHER THINGS, AND THE EXACTION IS NOT CLAIMED
TO BE ACTUALLY BURDENSOME, IS TO SAY THAT THE CONSTITUTION REQUIRES NOT
THAT THE DISSEMINATION OF IDEAS IN THE INTEREST OF RELIGION SHALL BE
FREE BUT THAT IT SHALL BE SUBSIDIZED BY THE STATE.  SUCH A CLAIM
OFFENDS THE MOST IMPORTANT OF ALL ASPECTS OF RELIGIOUS FREEDOM IN THIS
COUNTRY, NAMELY, THAT OF THE SEPARATION OF CHURCH AND STATE. 

THE ULTIMATE QUESTION IN DETERMINING THE CONSTITUTIONALITY OF A TAX
MEASURE IS - HAS THE STATE GIVEN SOMETHING FOR WHICH IT CAN ASK A
RETURN?  THERE CAN BE NO DOUBT THAT THESE PETITIONERS, LIKE ALL WHO USE
THE STREETS, HAVE RECEIVED THE BENEFITS OF GOVERNMENT.  PEACE IS
MAINTAINED, TRAFFIC IS REGULATED, HEALTH IS SAFEGUARDED - THESE ARE
ONLY SOME OF THE MANY INCIDENTS OF MUNICIPAL ADMINISTRATION.  TO SECURE
THEM COSTS MONEY, AND A STATE'S SOURCE OF MONEY IS ITS TAXING POWER. 
THERE IS NOTHING IN THE CONSTITUTION WHICH EXEMPTS PERSONS ENGAGED IN
RELIGIOUS ACTIVITIES FROM SHARING EQUALLY IN THE COSTS OF BENEFITS TO
ALL, INCLUDING THEMSELVES, PROVIDED BY GOVERNMENT. 

I CANNOT SAY, THEREFORE, THAT IN THESE CASES THE COMMUNITY HAS
DEMANDED A RETURN FOR THAT WHICH IT DID NOT GIVE.  NOR AM I CALLED UPON
TO SAY THAT THE STATE HAS DEMANDED UNJUSTIFIABLY MORE THAN THE VALUE OF
WHAT IT GAVE, NOR THAT ITS DEMAND IN FACT CRAMPS ACTIVITIES PURSUED TO
PROMOTE RELIGIOUS BELIEFS.  NO SUCH CLAIM WAS MADE AT THE BAR, AND
THERE IS NO EVIDENCE IN THE RECORDS TO SUBSTANTIATE ANY SUCH CLAIM IF
IT HAD BEEN MADE.  UNDER THESE CIRCUMSTANCES, THEREFORE, I AM OF
OPINION THAT THE ORDINANCES IN THESE CASES MUST STAND. 

MR. JUSTICE JACKSON JOINS IN THIS DISSENT. 
..END :


















MARTIN V. STRUTHERS, 319 U.S. 141 


NO. 238.  ARGUED MARCH 11, 1943.  - DECIDED MAY 3, 1943.  - 139 OHIO ST.
372, 40 N.E.2D 154, REVERSED. 


A MUNICIPAL ORDINANCE FORBIDDING ANY PERSON TO KNOCK ON DOORS, RING
DOORBELLS, OR OTHERWISE SUMMON TO THE DOOR THE OCCUPANTS OF ANY
RESIDENCE FOR THE PURPOSE OF DISTRIBUTING TO THEM HANDBILLS OR
CIRCULARS, HELD - AS APPLIED TO A PERSON DISTRIBUTING ADVERTISEMENTS
FOR A RELIGIOUS MEETING - INVALID UNDER THE FEDERAL CONSTITUTION AS A
DENIAL OF FREEDOM OF SPEECH AND PRESS.  PP. 142, 149. 

MARTIN V. CITY OF STRUTHERS. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

APPEAL FROM THE DISMISSAL OF AN APPEAL FROM A JUDGMENT AFFIRMING A
CONVICTION FOR VIOLATION OF A MUNICIPAL ORDINANCE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

FOR CENTURIES IT HAS BEEN A COMMON PRACTICE IN THIS AND OTHER
COUNTRIES FOR PERSONS NOT SPECIFICALLY INVITED TO GO FROM HOME TO HOME
AND KNOCK ON DOORS OR RING DOOR-BELLS TO COMMUNICATE IDEAS TO THE
OCCUPANTS OR TO INVITE THEM TO POLITICAL, RELIGIOUS, OR OTHER KINDS OF
PUBLIC MEETINGS.  WHETHER SUCH VISITING SHALL BE PERMITTED HAS IN
GENERAL BEEN DEEMED TO DEPEND UPON THE WILL OF THE INDIVIDUAL MASTER OF
EACH HOUSEHOLD, AND NOT UPON THE DETERMINATION OF THE COMMUNITY.  IN
THE INSTANT CASE, THE CITY OF STRUTHERS, OHIO, HAS ATTEMPTED TO MAKE
THIS DECISION FOR ALL ITS INHABITANTS.  THE QUESTION TO BE DECIDED IS
WHETHER THE CITY, CONSISTENTLY WITH THE FEDERAL CONSTITUTION'S
GUARANTEE OF FREE SPEECH AND PRESS, POSSESSES THIS POWER.  FN1 

THE APPELLANT, ESPOUSING A RELIGIOUS CAUSE IN WHICH SHE WAS
INTERESTED - THAT OF THE JEHOVAH'S WITNESSES - WENT TO THE HOMES OF
STRANGERS, KNOCKING ON DOORS AND RINGING DOORBELLS IN ORDER TO
DISTRIBUTE TO THE INMATES OF THE HOMES LEAFLETS ADVERTISING A RELIGIOUS
MEETING.  IN DOING SO, SHE PROCEEDED IN A CONVENTIONAL AND ORDERLY
FASHION.  FOR DELIVERING A LEAFLET TO THE INMATE OF A HOME, SHE WAS
CONVICTED IN THE MAYOR'S COURT AND WAS FINED $10.00 ON A CHARGE OF
VIOLATING THE FOLLOWING CITY ORDINANCE: 

"IT IS UNLAWFUL FOR ANY PERSON DISTRIBUTING HANDBILLS, CIRCULARS OR
OTHER ADVERTISEMENTS TO RING THE DOOR BELL, SOUND THE DOOR KNOCKER, OR
OTHERWISE SUMMON THE INMATE OR INMATES OF ANY RESIDENCE TO THE DOOR FOR
THE PURPOSE OF RECEIVING SUCH HANDBILLS, CIRCULARS OR OTHER
ADVERTISEMENTS THEY OR ANY PERSON WITH THEM MAY BE DISTRIBUTING." 

THE APPELLANT ADMITTED KNOCKING AT THE DOOR FOR THE PURPOSE OF
DELIVERING THE INVITATION, BUT SEASONABLY URGED IN THE LOWER OHIO STATE
COURT THAT THE ORDINANCE AS CONSTRUED AND APPLIED WAS BEYOND THE POWER
OF THE STATE BECAUSE IN VIOLATION OF THE RIGHT OF FREEDOM OF PRESS AND
RELIGION AS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  FN2 

THE RIGHT OF FREEDOM OF SPEECH AND PRESS HAS BROAD SCOPE.  THE
AUTHORS OF THE FIRST AMENDMENT KNEW THAT NOVEL AND UNCONVENTIONAL IDEAS
MIGHT DISTURB THE COMPLACENT, BUT THEY CHOSE TO ENCOURAGE A FREEDOM
WHICH THEY BELIEVED ESSENTIAL IF VIGOROUS ENLIGHTENMENT WAS EVER TO
TRIUMPH OVER SLOTHFUL IGNORANCE.  FN3  THIS FREEDOM EMBRACES THE RIGHT
TO DISTRIBUTE LITERATURE, LOVELL V. GRIFFIN, 303 U.S. 444, 452, AND
NECESSARILY PROTECTS THE RIGHT TO RECEIVE IT.  THE PRIVILEGE MAY NOT BE
WITHDRAWN EVEN IF IT CREATES THE MINOR NUISANCE FOR A COMMUNITY OF
CLEANING LITTER FROM ITS STREETS.  SCHNEIDER V. STATE, 308 U.S. 147,
162.  YET THE PEACE, GOOD ORDER, AND COMFORT OF THE COMMUNITY MAY
IMPERATIVELY REQUIRE REGULATION OF THE TIME, PLACE AND MANNER OF
DISTRIBUTION.  CANTWELL V. CONNECTICUT, 310 U.S. 296, 304.  NO ONE
SUPPOSES, FOR EXAMPLE, THAT A CITY NEED PERMIT A MAN WITH A
COMMUNICABLE DISEASE TO DISTRIBUTE LEAFLETS ON THE STREET OR TO HOMES,
OR THAT THE FIRST AMENDMENT PROHIBITS A STATE FROM PREVENTING THE
DISTRIBUTION OF LEAFLETS IN A CHURCH AGAINST THE WILL OF THE CHURCH
AUTHORITIES. 

WE ARE FACED IN THE INSTANT CASE WITH THE NECESSITY OF WEIGHING THE
CONFLICTING INTERESTS OF THE APPELLANT IN THE CIVIL RIGHTS SHE CLAIMS,
AS WELL AS THE RIGHT OF THE INDIVIDUAL HOUSEHOLDER TO DETERMINE WHETHER
HE IS WILLING TO RECEIVE HER MESSAGE, AGAINST THE INTEREST OF THE
COMMUNITY WHICH BY THIS ORDINANCE OFFERS TO PROTECT THE INTERESTS OF
ALL OF ITS CITIZENS, WHETHER PARTICULAR CITIZENS WANT THAT PROTECTION
OR NOT.  THE ORDINANCE DOES NOT CONTROL ANYTHING BUT THE DISTRIBUTION
OF LITERATURE, AND IN THAT RESPECT IT SUBSTITUTES THE JUDGMENT OF THE
COMMUNITY FOR THE JUDGMENT OF THE INDIVIDUAL HOUSEHOLDER.  IT SUBMITS
THE DISTRIBUTER TO CRIMINAL PUNISHMENT FOR ANNOYING THE PERSON ON WHOM
HE CALLS, EVEN THOUGH THE RECIPIENT OF THE LITERATURE DISTRIBUTED IS IN
FACT GLAD TO RECEIVE IT.  IN CONSIDERING LEGISLATION WHICH THUS LIMITS
THE DISSEMINATION OF KNOWLEDGE, WE MUST "BE ASTUTE TO EXAMINE THE
EFFECT OF THE CHALLENGED LEGISLATION" AND MUST "WEIGH THE CIRCUMSTANCES
AND ...  APPRAISE THE SUBSTANTIALITY OF THE REASONS ADVANCED IN SUPPORT
OF THE REGULATION."  SCHNEIDER V. STATE, SUPRA, 161. 

ORDINANCES OF THE SORT NOW BEFORE US MAY BE AIMED AT THE PROTECTION
OF THE HOUSEHOLDERS FROM ANNOYANCE, INCLUDING INTRUSION UPON THE HOURS
OF REST, AND AT THE PREVENTION OF CRIME.  CONSTANT CALLERS, WHETHER
SELLING POTS OR DISTRIBUTING LEAFLETS, MAY LESSEN THE PEACEFUL
ENJOYMENT OF A HOME AS MUCH AS A NEIGHBORHOOD GLUE FACTORY OR RAILROAD
YARD WHICH ZONING ORDINANCES MAY PROHIBIT.  IN THE INSTANT CASE, FOR
EXAMPLE, IT IS CLEAR FROM THE RECORD THAT THE HOUSEHOLDER TO WHOM THE
APPELLANT GAVE THE LEAFLET WHICH LED TO HER ARREST WAS MORE IRRITATED
THAN PLEASED WITH HER VISITOR.  THE CITY, WHICH IS AN INDUSTRIAL
COMMUNITY MOST OF WHOSE RESIDENTS ARE ENGAGED IN THE IRON AND STEEL
INDUSTRY, FN4  HAS VIGOROUSLY ARGUED THAT ITS INHABITANTS FREQUENTLY
WORK ON SWING SHIFTS, WORKING NIGHTS AND SLEEPING DAYS SO THAT CASUAL
BELL PUSHERS MIGHT SERIOUSLY INTERFERE WITH THE HOURS OF SLEEP ALTHOUGH
THEY CALL AT HIGH NOON.  IN ADDITION, BURGLARS FREQUENTLY POSE AS
CANVASSERS, EITHER IN ORDER THAT THEY MAY HAVE A PRETENSE TO DISCOVER
WHETHER A HOUSE IS EMPTY AND HENCE RIPE FOR BURGLARY, OR FOR THE
PURPOSE OF SPYING OUT THE PREMISES IN ORDER THAT THEY MAY RETURN
LATER.  FN5  CRIME PREVENTION MAY THUS BE THE PURPOSE OF REGULATORY
ORDINANCES. 

WHILE DOOR TO DOOR DISTRIBUTERS OF LITERATURE MAY BE EITHER A
NUISANCE OR A BLIND FOR CRIMINAL ACTIVITIES, THEY MAY ALSO BE USEFUL
MEMBERS OF SOCIETY ENGAGED IN THE DISSEMINATION OF IDEAS IN ACCORDANCE
WITH THE BEST TRADITION OF FREE DISCUSSION.  THE WIDESPREAD USE OF THIS
METHOD OF COMMUNICATION BY MANY GROUPS ESPOUSING VARIOUS CAUSES ATTESTS
ITS MAJOR IMPORTANCE.  "PAMPHLETS HAVE PROVED MOST EFFECTIVE
INSTRUMENTS IN THE DISSEMINATION OF OPINION.  AND PERHAPS THE MOST
EFFECTIVE WAY OF BRINGING THEM TO THE NOTICE OF INDIVIDUALS IS THEIR
DISTRIBUTION AT THE HOMES OF THE PEOPLE."  SCHNEIDER V. STATE, SUPRA,
164.  MANY OF OUR MOST WIDELY ESTABLISHED RELIGIOUS ORGANIZATIONS HAVE
USED THIS METHOD OF DISSEMINATING THEIR DOCTRINES,  FN6  AND LABORING
GROUPS HAVE USED IT IN RECRUITING THEIR MEMBERS.  FN7  THE FEDERAL
GOVERNMENT, IN ITS CURRENT WAR BOND SELLING CAMPAIGN, ENCOURAGES GROUPS
OF CITIZENS TO DISTRIBUTE ADVERTISEMENTS AND CIRCULARS FROM HOUSE TO
HOUSE.  FN8  OF COURSE, AS EVERY PERSON ACQUAINTED WITH POLITICAL LIFE
KNOWS, DOOR TO DOOR CAMPAIGNING IS ONE OF THE MOST ACCEPTED TECHNIQUES
OF SEEKING POPULAR SUPPORT, WHILE THE CIRCULATION OF NOMINATING PAPERS
WOULD BE GREATLY HANDICAPPED IF THEY COULD NOT BE TAKEN TO THE CITIZENS
IN THEIR HOMES.  FN9  DOOR TO DOOR DISTRIBUTION OF CIRCULARS IS
ESSENTIAL TO THE POORLY FINANCED CAUSES OF LITTLE PEOPLE. 

FREEDOM TO DISTRIBUTE INFORMATION TO EVERY CITIZEN WHEREVER HE
DESIRES TO RECEIVE IT IS SO CLEARLY VITAL TO THE PRESERVATION OF A FREE
SOCIETY THAT, PUTTING ASIDE REASONABLE POLICE AND HEALTH REGULATIONS OF
TIME AND MANNER OF DISTRIBUTION, IT MUST BE FULLY PRESERVED.  THE
DANGERS OF DISTRIBUTION CAN SO EASILY BE CONTROLLED BY TRADITIONAL
LEGAL METHODS, LEAVING TO EACH HOUSEHOLDER THE FULL RIGHT TO DECIDE
WHETHER HE WILL RECEIVE STRANGERS AS VISITORS, THAT STRINGENT
PROHIBITION CAN SERVE NO PURPOSE BUT THAT FORBIDDEN BY THE
CONSTITUTION, THE NAKED RESTRICTION OF THE DISSEMINATION OF IDEAS. 

TRADITIONALLY THE AMERICAN LAW PUNISHES PERSONS WHO ENTER ONTO THE
PROPERTY OF ANOTHER AFTER HAVING BEEN WARNED BY THE OWNER TO KEEP OFF. 
GENERAL TRESPASS AFTER WARNING STATUTES EXIST IN AT LEAST TWENTY
STATES,  FN10  WHILE SIMILAR STATUTES OF NARROWER SCOPE ARE ON THE
BOOKS OF AT LEAST TWELVE STATES MORE.  FN11  WE KNOW OF NO STATE WHICH,
AS DOES THE STRUTHERS ORDINANCE IN EFFECT, MAKES A PERSON A CRIMINAL
TRESPASSER IF HE ENTERS THE PROPERTY OF ANOTHER FOR AN INNOCENT PURPOSE
WITHOUT AN EXPLICIT COMMAND FROM THE OWNERS TO STAY AWAY.  FN12  THE
NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS HAS PROPOSED A FORM OF
REGULATION TO ITS MEMBER CITIES  FN13  WHICH WOULD MAKE IT AN OFFENSE
FOR ANY PERSON TO RING THE BELL OF A HOUSEHOLDER WHO HAS APPROPRIATELY
INDICATED THAT HE IS UNWILLING TO BE DISTURBED.  THIS OR ANY SIMILAR
REGULATION LEAVES THE DECISION AS TO WHETHER DISTRIBUTERS OF LITERATURE
MAY LAWFULLY CALL AT A HOME WHERE IT BELONGS - WITH THE HOMEOWNER
HIMSELF.  A CITY CAN PUNISH THOSE WHO CALL AT A HOME IN DEFIANCE OF THE
PREVIOUSLY EXPRESSED WILL OF THE OCCUPANT AND, IN ADDITION, CAN BY
IDENTIFICATION DEVICES CONTROL THE ABUSE OF THE PRIVILEGE BY CRIMINALS
POSING AS CANVASSERS.  FN14  IN ANY CASE, THE PROBLEM MUST BE WORKED
OUT BY EACH COMMUNITY FOR ITSELF WITH DUE RESPECT FOR THE
CONSTITUTIONAL RIGHTS OF THOSE DESIRING TO DISTRIBUTE LITERATURE AND
THOSE DESIRING TO RECEIVE IT, AS WELL AS THOSE WHO CHOOSE TO EXCLUDE
SUCH DISTRIBUTERS FROM THE HOME. 

THE STRUTHERS ORDINANCE DOES NOT SAFEGUARD THESE CONSTITUTIONAL
RIGHTS.  FOR THIS REASON, AND WHOLLY ASIDE FROM ANY OTHER POSSIBLE
DEFECTS, ON WHICH WE DO NOT PASS BUT WHICH ARE SUGGESTED IN OTHER
OPINIONS FILED IN THIS CASE, WE CONCLUDE THAT THE ORDINANCE IS INVALID
BECAUSE IN CONFLICT WITH THE FREEDOM OF SPEECH AND PRESS. 

THE JUDGMENT BELOW IS REVERSED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  THIS ORDINANCE WAS NOT DIRECTED SOLELY AT COMMERCIAL
ADVERTISING.  CF. VALENTINE V. CHRESTENSEN, 316 U.S. 52; GREEN RIVER V.
FULLER BRUSH CO., 65 F.2D 112.  COMPARE FOR POSSIBLE DIFFERENT RESULTS
UNDER STATE CONSTITUTIONS PRIOR V. WHITE, 132 FLA. 1, 180 SO. 347;
ORANGEBURG V. FARMER, 181 S.C. 143, 186 S.E. 783. 

FN2  THE APPELLANT'S JUDGMENT OF CONVICTION WAS APPEALED TO THE
SUPREME COURT OF OHIO WHICH DISMISSED THE APPEAL ON THE STATED GROUND
THAT:  "NO DEBATABLE CONSTITUTIONAL QUESTION IS INVOLVED."  139 OHIO
ST. 372, 40 N.E.2D 154.  WE AT FIRST DISMISSED THE APPEAL, THINKING
THAT THE SUPREME COURT OF OHIO MEANT THAT NO CONSTITUTIONAL QUESTION
HAD BEEN PROPERLY RAISED IN ACCORDANCE WITH OHIO PROCEDURE.  UPON
RECONSIDERATION WE CONCLUDED THAT, SINCE A CONSTITUTIONAL QUESTION HAD
BEEN PRESENTED IN THE LOWER STATE COURT, THE LANGUAGE OF THE ORDER OF
THE SUPREME COURT OF OHIO SHOULD BE CONSTRUED AS A DECISION UPON THE
CONSTITUTIONAL QUESTION. 

FN3  "THE ONLY SECURITY OF ALL IS IN A FREE PRESS.  THE FORCE OF
PUBLIC OPINION CANNOT BE RESISTED, WHEN PERMITTED FREELY TO BE
EXPRESSED.  THE AGITATION IT PRODUCES MUST BE SUBMITTED TO. IT IS
NECESSARY TO KEEP THE WATERS PURE."  JEFFERSON TO LAFAYETTE, WRITINGS
OF THOMAS JEFFERSON, WASHINGTON ED., V. 7, P. 325. 

FN4  16TH CENSUS, "POPULATION - 2D SERIES - OHIO," 133, 151. 

FN5  FOR A DISCUSSION OF SUCH PRACTICES, SEE SODERMAN AND O'CONNELL,
MODERN CRIMINAL INVESTIGATION, CHAP. 13 AND CHAP. 20; FEDERAL BUREAU OF
INVESTIGATION LAW ENFORCEMENT BULLETIN, JULY, 1938; 20 PUBLIC
MANAGEMENT 83(AN ANALYSIS OF THE CRIMINAL RECORDS OF A GROUP OF
CANVASSERS IN WINNETKA, ILLINOIS).  SACRAMENTO, CALIFORNIA, HAS RESTED
A CANVASSING ORDINANCE ON CRIME PREVENTION, IN RE HARTMANN, 25 CAL.
APP.2D 55, 76 P.2D 709, AND COURTS HAVE BEEN AWARE OF THIS ASPECT OF
THE PROBLEM IN DEALING WITH SUCH ORDINANCES.  ALLEN V. MCGOVERN, 12
N.J. MISC. 12, 13, 169 A. 345; DZIATKIEWICZ V. MAPLEWOOD, 115 N.J.L.
37, 178 A. 205. 

FN6  REPRESENTATIVES OF THE AMERICAN TRACT SOCIETY, AN
INTERDENOMINATIONAL ORGANIZATION ENGAGED IN COLPORTAGE SINCE 1841, HAVE
VISITED OVER TWENTY-FIVE MILLION FAMILIES.  ARTICLE ON "AMERICAN TRACT
SOCIETY," 1 ENCYCLOPEDIA AMERICANA (1932 ED.)  566; ANNUAL REPORTS OF
THE AMERICAN TRACT SOCIETY (E.G., THE 116TH REPORT, 1941, 37-38; 117TH
REPORT, 1942, PP. 37-38); BAIRD, RELIGION IN AMERICA (1856), 334-340. 

SEE ALSO THE ACTIVITIES OF THE AMERICAN BIBLE SOCIETY.  JONES,
COLPORTAGE SKETCHES (1883); DWIGHT, THE CENTENNIAL HISTORY OF THE
AMERICAN BIBLE SOCIETY (1916), 177-81, 293-95, 460; ANNUAL REPORTS OF
THE AMERICAN BIBLE SOCIETY (E.G., 126TH REPORT, 1942, PASSIM). 

FOR THE WORLD-WIDE COLPORTAGE ACTIVITIES OF THE BRITISH AND FOREIGN
BIBLE SOCIETY, SEE THE SOCIETY'S 137TH REPORT, 1941, PASSIM; FOR
WAYFARING MEN (1939), 31-78; RITSON, THE WORLD IS OUR PARISH (1939),
116-18. 

THIS PRACTICE HAS BEEN FOLLOWED BY MANY RELIGIOUS GROUPS.  SEE, E.G.,
BARNES, BARNES AND STEPHENSON, PIONEERS OF LIGHT (1924), 81-104;
STEVENS, THE FIRST HUNDRED YEARS OF THE AMERICAN BAPTIST PUBLICATION
SOCIETY (1925), 30-32.  DURING THE FISCAL YEAR 1939-1940,
REPRESENTATIVES OF THE AMERICAN BAPTIST PUBLICATION SOCIETY VISITED
52,832 FAMILIES.  MORE THAN SIX MILLION FAMILIES HAVE BEEN VISITED OVER
A ONE HUNDRED YEAR PERIOD.  ANNUAL OF NORTHERN BAPTIST CONVENTION,
1940, 671, 673; YEAR BOOK OF THE NORTHERN BAPTIST CONVENTION, 1942, 332
335.  SEE FOR THE PRACTICE OF OTHER RELIGIONS, STEWART, SHELDON JACKSON
(1908), 32; GOODYKOONTZ, HOME MISSIONS ON THE AMERICAN FRONTIER (1939),
120-122; KELLER, THE SECOND GREAT AWAKENING IN CONNECTICUT (1942), 117
121.    FN7  LORWIN AND FLEXNER, THE AMERICAN FEDERATION OF LABOR, 352;
INTERNATIONAL LADIES GARMENT WORKERS UNION, HANDBOOK OF TRADE UNION
METHODS, 10; BROOKS, WHEN LABOR ORGANIZES, CHAP. 1("ORGANIZING A
UNION"). 

FN8  "WOMEN'S HANDBOOK," PP. 22 AND 63, A PUBLICATION OF THE WOMEN'S
HOME FRONT JOURNAL, APRIL, 1943, P. 1, A PUBLICATION OF THE SAME GROUP;
"A PROGRAM OF ACTION FOR CLUBS," P. 3, A PUBLICATION OF THE DEPARTMENT
OF THE TREASURY.  PRESUMABLY A CITIZEN OF STRUTHERS DISTRIBUTING TO
HOMES THE PAMPHLETS RECOMMENDED IN "A PROGRAM OF ACTION" WOULD VIOLATE
THE CITY'S ORDINANCE.    FN9  MERRIAM AND GOSNELL, THE AMERICAN PARTY
SYSTEM, 317(THE CANVASS); BRUCE, AMERICAN PARTIES AND POLITICS, 407;
OSTOGOSKII, DEMOCRACY, 153-155, 453; PIERSON, IN THE BRUSH,
142(POLITICS IN THE OLD SOUTHWEST); BARNES, THE ANTISLAVERY IMPULSE,
137-143(CIRCULATION OF ANTISLAVERY PETITIONS).  THE AMERICAN
POLITICIAN, ED. BY J.T. SALTER, 19, 235, 310, 339, AND THE AMERICAN
POLITICAL SCENE, ED. BY EDWARD LOGAN, 64, 150, INDICATE BY PASSING
REFERENCES TO PRACTICES IN MANY STATES THE EXTENT TO WHICH THE DOOR TO
DOOR CANVASS IS A STAPLE OF POLITICAL LIFE. 

FOR ENCOURAGEMENT OF THIS PRACTICE, SEE HANDBOOK OF CLUB
ORGANIZATION, NATIONAL FEDERATION OF WOMEN'S REPUBLICAN CLUBS (1942),
21; AND PRECINCT ORGANIZATION IN WAR TIME, A RECENT PUBLICATION OF THE
DEMOCRATIC NATIONAL COMMITTEE. 

FN10  ALABAMA CODE (1940), TIT. 14, SEC. 426; CONNECTICUT GEN. STAT.
(1930), SEC. 6119; FLORIDA STAT. (1941), SEC. 821.01; GEORGIA CODE ANN.
(1938), SEC. 26-3002; ILLINOIS ANN. STAT. (SMITH-HURD, 1935), CH. 38,
SEC. 565; INDIANA STAT. (BURNS, 1934), SEC. 10-4506; MARYLAND ANN. CODE
(FLACK, 1939), ART. 27, SECS. 24, 286; MASSACHUSETTS ANN. LAWS (1933),
V. 9, CH. 266, SEC. 120; MISSISSIPPI CODE ANN. (1930), SEC. 1168;
NEBRASKA COMP. STAT. (1929), SECS. 76-807, 8; NEVADA COMP. LAWS (1929),
SEC. 10447; NORTH CAROLINA CODE (1943), SEC. 14-134; OHIO CODE ANN.
(THROCKMORTON, 1940), SEC. 12522; OKLAHOMA STAT. (1937), TIT. 21, SEC.
1835; OREGON COMP. LAWS ANN. (1940), SECS. 23-593, 4; PENNSYLVANIA ANN.
STAT. (PURDON, 1942 SUPP.), V. 18, SEC. 4954; SOUTH CAROLINA CODE
(1942), SEC. 1190; VIRGINIA CODE (1936), SEC. 4480A; WASHINGTON REV.
STAT. (REMINGTON, 1932), SEC. 2665; WYOMING REV. STAT. (1931), SEC. 32
337. 

FN11  ARKANSAS STAT. (POPE, 1937), SEC. 3181; CALIFORNIA PENAL CODE
(DEERING, 1941), SECS. 602, 627; COLORADO STAT. ANN. (1935), V. 3, CH.
73, SEC. 118; KENTUCKY REV. STAT. (BALDWIN, 1942), SECS. 433.720,
433.490; LOUISIANA GEN. STAT. (DART, 1939), SEC. 9463; MAINE REV. STAT.
(1930), CH. 139, SEC. 22; MINNESOTA STAT. (1941), SEC. 621.57; MONTANA
REV. CODE ANN. (1935), SEC. 11482; NEW HAMPSHIRE PUBLIC LAWS (1926),
CH. 380, SEC. 11; NEW JERSEY REV. STAT. (1937), TIT. 4, SEC. 17-2; NEW
YORK CONSOL.  LAWS ANN. (MCKINNEY, 1941), CONSERVATION LAW, SECS. 361
364; TEXAS STAT. (VERNON, 1936), P.C. ART. 1377. 

FN12  MUNICIPALITIES HAVE OCCASIONALLY MADE CANVASSERS TRESPASSERS
WITHOUT REQUIRING THAT THE HOUSEHOLDER GIVE AN EXPLICIT NOTICE, AS THE
INSTANT ORDINANCE TESTIFIES.  SEE E.G. PEOPLE V. BOHNKE, 287 N.Y. 154,
38 N.E.2D 478. 

FN13  MUNICIPALITIES AND THE LAW IN ACTION (1943), NATIONAL INSTITUTE
OF MUNICIPAL LAW OFFICERS, 373.  WE DO NOT, BY THIS REFERENCE, MEAN TO
EXPRESS ANY OPINION ON THE WISDOM OR VALIDITY OF THE PARTICULAR
PROPOSALS OF THE INSTITUTE. 

FN14  "NOTHING WE HAVE SAID IS INTENDED EVEN REMOTELY TO IMPLY THAT,
UNDER THE CLOAK OF RELIGION, PERSONS MAY, WITH IMPUNITY, COMMIT FRAUDS
UPON THE PUBLIC.  CERTAINLY PENAL LAWS ARE AVAILABLE TO PUNISH SUCH
CONDUCT.  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."  CANTWELL V. CONNECTICUT, 310 U.S. 296, 306. 

MR. JUSTICE MURPHY, CONCURRING: 

I JOIN IN THE OPINION OF THE COURT, BUT THE IMPORTANCE OF THIS AND THE
OTHER CASES INVOLVING JEHOVAH'S WITNESSES DECIDED TODAY, MOVES ME TO
ADD THIS BRIEF STATEMENT. 

I BELIEVE THAT NOTHING ENJOYS A HIGHER ESTATE IN OUR SOCIETY THAN THE
RIGHT GIVEN BY THE FIRST AND FOURTEENTH AMENDMENTS FREELY TO PRACTICE
AND PROCLAIM ONE'S RELIGIOUS CONVICTIONS.  CF. JONES V. OPELIKA, 316
U.S. 584 AT 621.  THE RIGHT EXTENDS TO THE AGGRESSIVE AND DISPUTATIOUS
AS WELL AS TO THE MEEK AND ACQUIESCENT.  THE LESSON OF EXPERIENCE IS
THAT - WITH THE PASSAGE OF TIME AND THE INTERCHANGE OF IDEAS -
ORGANIZATIONS, ONCE TURBULENT, PERFERVID AND INTOLERANT IN THEIR
ORIGIN, MELLOW INTO TOLERANCE AND ACCEPTANCE BY THE COMMUNITY, OR ELSE
SINK INTO OBLIVION.  RELIGIOUS DIFFERENCES ARE OFTEN SHARP AND PLEADERS
AT TIMES RESORT "TO EXAGGERATION, TO VILIFICATION OF MEN WHO HAVE BEEN,
OR ARE, PROMINENT IN CHURCH OR STATE, AND EVEN TO FALSE STATEMENT.  BUT
THE PEOPLE OF THIS NATION HAVE ORDAINED IN THE LIGHT OF HISTORY, THAT,
IN SPITE OF THE PROBABILITY OF EXCESSES AND ABUSES, THESE LIBERTIES
ARE, IN THE LONG VIEW, ESSENTIAL TO ENLIGHTENED OPINION AND RIGHT
CONDUCT ON THE PART OF THE CITIZENS OF A DEMOCRACY."  CANTWELL V.
CONNECTICUT, 310 U.S. 296, 310.  IF A RELIGIOUS BELIEF HAS SUBSTANCE,
IT CAN SURVIVE CRITICISM, HEATED AND ABUSIVE THOUGH IT MAY BE, WITH THE
AID OF TRUTH AND REASON ALONE.  BY THE SAME METHOD, THOSE WHO FOLLOW
FALSE PROPHETS ARE EXPOSED.  REPRESSION HAS NO PLACE IN THIS COUNTRY. 
IT IS OUR PROUD ACHIEVEMENT TO HAVE DEMONSTRATED THAT UNITY AND
STRENGTH ARE BEST ACCOMPLISHED, NOT BY ENFORCED ORTHODOXY OF VIEWS, BUT
BY DIVERSITY OF OPINION THROUGH THE FULLEST POSSIBLE MEASURE OF FREEDOM
OF CONSCIENCE AND THOUGHT. 

ALSO, FEW, IF ANY, BELIEVE MORE STRONGLY IN THE MAXIM, "A MAN'S HOME
IS HIS CASTLE," THAN I. CF. GOLDMAN V. UNITED STATES, 316 U.S. 129 AT
136.  IF THIS PRINCIPLE APPROACHES A COLLISION WITH RELIGIOUS FREEDOM,
THERE SHOULD BE AN ACCOMMODATION, IF AT ALL POSSIBLE, WHICH GIVES
APPROPRIATE RECOGNITION TO BOTH.  THAT IS, IF REGULATION SHOULD BE
NECESSARY TO PROTECT THE SAFETY AND PRIVACY OF THE HOME, AN EFFORT
SHOULD BE MADE AT THE SAME TIME TO PRESERVE THE SUBSTANCE OF RELIGIOUS
FREEDOM. 

THERE CAN BE NO QUESTION BUT THAT APPELLANT WAS ENGAGED IN A
RELIGIOUS ACTIVITY WHEN SHE WAS GOING FROM HOUSE TO HOUSE IN THE CITY
OF STRUTHERS DISTRIBUTING CIRCULARS ADVERTISING A MEETING OF THOSE OF
HER BELIEF.  DISTRIBUTION OF SUCH CIRCULARS ON THE STREETS CANNOT BE
PROHIBITED.  JAMISON V. TEXAS, 318 U.S. 413.  NOR CAN THEIR
DISTRIBUTION ON THE STREETS OR FROM HOUSE TO HOUSE BE CONDITIONED UPON
OBTAINING A LICENSE WHICH IS SUBJECT TO THE UNCONTROLLED DISCRETION OF
MUNICIPAL OFFICIALS, LOVELL V. GRIFFIN, 303 U.S. 444; SCHNEIDER V.
STATE, 308 U.S. 147; LARGENT V. TEXAS, 318 U.S. 418, OR UPON PAYMENT OF
A LICENSE TAX FOR THE PRIVILEGE OF SO DOING.  MURDOCK V. PENNSYLVANIA,
ANTE, P. 105; JONES V. OPELIKA, ANTE, P. 103.  PREACHING FROM HOUSE TO
HOUSE IS AN AGE-OLD METHOD OF PROSELYTING, AND IT MUST BE REMEMBERED
THAT "ONE IS NOT TO HAVE THE EXERCISE OF HIS LIBERTY OF EXPRESSION IN
APPROPRIATE PLACES ABRIDGED ON THE PLEA THAT IT MAY BE EXERCISED IN
SOME OTHER PLACE."  SCHNEIDER V. STATE, SUPRA, P. 163. 

NO DOUBT THERE MAY BE RELEVANT CONSIDERATIONS WHICH JUSTIFY
CONSIDERABLE REGULATION OF DOOR TO DOOR CANVASSING, EVEN FOR RELIGIOUS
PURPOSES,  - REGULATION AS TO TIME, NUMBER AND IDENTIFICATION OF
CANVASSERS, ETC., WHICH WILL PROTECT THE PRIVACY AND SAFETY OF THE HOME
AND YET PRESERVE THE SUBSTANCE OF RELIGIOUS FREEDOM.  AND, IF A
HOUSEHOLDER DOES NOT DESIRE VISITS FROM RELIGIOUS CANVASSERS, HE CAN
MAKE HIS WISHES KNOWN IN A SUITABLE FASHION.  THE FACT THAT SOME
REGULATION MAY BE PERMISSIBLE, HOWEVER, DOES NOT MEAN THAT THE FIRST
AMENDMENT MAY BE ABROGATED.  WE ARE NOT DEALING HERE WITH A STATUTE
"NARROWLY DRAWN TO COVER THE PRECISE SITUATION" THAT CALLS FOR REMEDIAL
ACTION, THORNHILL V. ALABAMA, 310 U.S. 88, 105; CANTWELL V.
CONNECTICUT, SUPRA, AT 311.  AS CONSTRUED BY THE STATE COURTS AND
APPLIED TO THE CASE AT BAR, THE STRUTHERS ORDINANCE PROHIBITS DOOR TO
DOOR CANVASSING OF ANY KIND, NO MATTER WHAT ITS CHARACTER AND PURPOSE
MAY BE, IF ATTENDED BY THE DISTRIBUTION OF WRITTEN OR PRINTED MATTER IN
THE FORM OF A CIRCULAR OR PAMPHLET.  I DO NOT BELIEVE THAT THIS
OUTRIGHT PROHIBITION IS WARRANTED.  AS I UNDERSTAND IT, THE
DISTRIBUTION OF CIRCULARS AND PAMPHLETS IS A RELATIVELY MINOR ASPECT OF
THE PROBLEM.  THE PRIMARY CONCERN IS WITH THE ACT OF CANVASSING AS A
SOURCE OF INCONVENIENCE AND ANNOYANCE TO HOUSEHOLDERS.  BUT IF THE CITY
CAN PROHIBIT CANVASSING FOR THE PURPOSE OF DISTRIBUTING RELIGIOUS
PAMPHLETS, IT CAN ALSO OUTLAW THE DOOR TO DOOR SOLICITATIONS OF
RELIGIOUS CHARITIES, OR THE ACTIVITIES OF THE HOLY MENDICANT WHO BEGS
ALMS FROM HOUSE TO HOUSE TO SERVE THE MATERIAL WANTS OF HIS FELLOWMEN
AND THUS OBTAIN SPIRITUAL COMFORT FOR HIS OWN SOUL. 

PROHIBITION MAY BE MORE CONVENIENT TO THE LAW MAKER, AND EASIER TO
FASHION THAN A REGULATORY MEASURE WHICH ADEQUATELY PROTECTS THE PEACE
AND PRIVACY OF THE HOME WITHOUT SUPPRESSING LEGITIMATE RELIGIOUS
ACTIVITIES.  BUT THAT DOES NOT JUSTIFY A REPRESSIVE ENACTMENT LIKE THE
ONE NOW BEFORE US.  CF. SCHNEIDER V. STATE, SUPRA, P. 164.  FREEDOM OF
RELIGION HAS A HIGHER DIGNITY UNDER THE CONSTITUTION THAN MUNICIPAL OR
PERSONAL CONVENIENCE.  IN THESE DAYS, FREE MEN HAVE NO LOFTIER
RESPONSIBILITY THAN THE PRESERVATION OF THAT FREEDOM.  A NATION
DEDICATED TO THAT IDEAL WILL NOT SUFFER BUT WILL PROSPER IN ITS
OBSERVANCE. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE JOIN IN THIS OPINION. 

MR. JUSTICE FRANKFURTER: 

FROM GENERATION TO GENERATION, FRESH VINDICATION IS GIVEN TO THE
PROPHETIC WISDOM OF THE FRAMERS OF THE CONSTITUTION IN CASTING IT IN
TERMS SO BROAD THAT IT HAS ADAPTABLE VITALITY FOR THE DRASTIC CHANGES
IN OUR SOCIETY WHICH THEY KNEW TO BE INEVITABLE, EVEN THOUGH THEY COULD
NOT FORESEE THEM.  THUS IT HAS COME TO BE THAT THE TRANSFORMING
CONSEQUENCES RESULTING FROM THE PERVASIVE INDUSTRIALIZATION OF LIFE
FIND THE COMMERCE CLAUSE APPROPRIATE, FOR INSTANCE, FOR NATIONAL
REGULATION OF AN AIRCRAFT FLIGHT WHOLLY WITHIN A SINGLE STATE.  SUCH
EXERTION OF POWER BY THE NATIONAL GOVERNMENT OVER WHAT MIGHT SEEM A
PURELY LOCAL TRANSACTION WOULD, AS A MATTER OF ABSTRACT LAW, HAVE BEEN
AS UNIMAGINABLE TO MARSHALL AS TO JEFFERSON, PRECISELY BECAUSE NEITHER
COULD HAVE FORESEEN THE PRESENT CONQUEST OF THE AIR BY MAN.  BUT LAW,
WHETHER DERIVED FROM ACTS OF CONGRESS OR THE CONSTITUTION, IS NOT AN
ABSTRACTION.  THE CONSTITUTION CANNOT BE APPLIED IN DISREGARD OF THE
EXTERNAL CIRCUMSTANCES IN WHICH MEN LIVE AND MOVE AND HAVE THEIR
BEING.  THEREFORE, NEITHER THE FIRST NOR THE FOURTEENTH AMENDMENT IS TO
BE TREATED BY JUDGES AS THOUGH IT WERE A MATHEMATICAL ABSTRACTION, AN
ABSOLUTE HAVING NO RELATION TO THE LIVES OF MEN. 

THE HABITS AND SECURITY OF LIFE IN SPARSELY SETTLED RURAL
COMMUNITIES, OR EVEN IN THOSE FEW CITIES WHICH A HUNDRED AND FIFTY
YEARS AGO HAD A POPULATION OF A FEW THOUSAND, CANNOT BE MADE THE BASIS
OF JUDGMENT FOR DETERMINING THE AREA OF ALLOWABLE SELF-PROTECTION BY
PRESENT-DAY INDUSTRIAL COMMUNITIES.  THE LACK OF PRIVACY AND THE
HAZARDS TO PEACE OF MIND AND BODY CAUSED BY PEOPLE LIVING NOT IN
INDIVIDUAL HOUSES BUT CROWDED TOGETHER IN LARGE HUMAN BEEHIVES, AS THEY
SO WIDELY DO, ARE FACTS OF MODERN LIVING WHICH CANNOT BE IGNORED. 

CONCEDEDLY, THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DID
NOT ABROGATE THE POWER OF THE STATES TO RECOGNIZE THAT HOMES ARE
SANCTUARIES FROM INTRUSIONS UPON PRIVACY AND OF OPPORTUNITIES FOR
LEADING LIVES OF HEALTH AND SAFETY.  DOOR-KNOCKING AND BELL-RINGING BY
PROFESSED PEDDLERS OF THINGS OR IDEAS MAY THEREFORE BE CONFINED WITHIN
SPECIFIED HOURS AND OTHERWISE CIRCUMSCRIBED SO AS NOT TO SANCTIFY THE
RIGHTS OF THESE PEDDLERS IN DISREGARD OF THE RIGHTS OF THOSE WITHIN
DOORS.  ACKNOWLEDGEMENT IS ALSO MADE THAT THE CITY OF STRUTHERS, THE
PARTICULAR ORDINANCE OF WHICH PRESENTS THE IMMEDIATE ISSUE BEFORE US,
IS ONE OF THOSE INDUSTRIAL COMMUNITIES THE RESIDENTS OF WHICH HAVE A
WORKING DAY CONSISTING OF TWENTY-FOUR HOURS, SO THAT FOR SOME PORTIONS
OF THE CITY'S INHABITANTS OPPORTUNITIES FOR SLEEP AND REFRESHMENT
REQUIRE DURING DAY AS WELL AS NIGHT WHATEVER PEACE AND QUIET IS
OBTAINABLE IN A MODERN INDUSTRIAL TOWN.  IT IS FURTHER RECOGNIZED THAT
THE MODERN MULTIPLE RESIDENCES GIVE OPPORTUNITIES FOR PSEUDO-CANVASSERS
TO PLY EVIL TRADES - DANGERS TO THE COMMUNITY PURSUED BY THE FEW BUT
FAR-REACHING IN THEIR SUCCESS AND IN THE FEARS THEY AROUSE. 

THE COURT'S OPINION APPARENTLY RECOGNIZES THESE FACTORS AS LEGITIMATE
CONCERNS FOR REGULATION BY THOSE WHOSE BUSINESS IT IS TO LEGISLATE. 
BUT IT FINDS, IF I INTERPRET CORRECTLY WHAT IS WANTING IN EXPLICITNESS,
THAT INSTEAD OF AIMING AT THE PROTECTION OF HOUSEHOLDERS FROM INTRUSION
UPON NEEDED HOURS OF REST OR FROM THOSE PLYING EVIL TRADES, WHETHER
PRETENDING THE SALE OF POTS AND PANS OR THE DISTRIBUTION OF LEAFLETS,
THE ORDINANCE BEFORE US MERELY PENALIZES THE DISTRIBUTION OF
"LITERATURE."  TO BE SURE, THE PROHIBITION OF THIS ORDINANCE IS WITHIN
A SMALL CIRCLE.  BUT IT IS NOT OUR BUSINESS TO REQUIRE LEGISLATURES TO
EXTEND THE AREA OF PROHIBITION OR REGULATION BEYOND THE DEMANDS OF
REVEALED ABUSES.  AND THE GREATEST LEEWAY MUST BE GIVEN TO THE
LEGISLATIVE JUDGMENT OF WHAT THOSE DEMANDS ARE.  THE RIGHT TO LEGISLATE
IMPLIES THE RIGHT TO CLASSIFY.  WE SHOULD NOT, HOWEVER UNWITTINGLY,
SLIP INTO THE JUDGMENT SEAT OF LEGISLATURES.  I MYSELF CANNOT SAY THAT
THOSE IN WHOSE KEEPING IS THE PEACE OF THE CITY OF STRUTHERS AND THE
RIGHT OF PRIVACY OF ITS HOME DWELLERS COULD NOT SINGLE OUT, IN
CIRCUMSTANCES OF WHICH THEY MAY HAVE KNOWLEDGE AND I CERTAINLY HAVE
NOT, THIS CLASS OF CANVASSERS AS THE PARTICULAR SOURCE OF MISCHIEF. 
THE COURT'S OPINION LEAVES ONE IN DOUBT WHETHER PROHIBITION OF ALL BELL
RINGING AND DOOR-KNOCKING WOULD BE DEEMED AN INFRINGEMENT OF THE
CONSTITUTIONAL PROTECTION OF SPEECH.  IT WOULD BE FANTASTIC TO SUGGEST
THAT A CITY HAS POWER, IN THE CIRCUMSTANCES OF MODERN URBAN LIFE, TO
FORBID HOUSE-TO-HOUSE CANVASSING GENERALLY, BUT THAT THE CONSTITUTION
PROHIBITS THE INCLUSION IN SUCH PROHIBITION OF DOOR-TO-DOOR VENDING OF
PHYLACTERIES OR ROSARIES OR OF ANY PRINTED MATTER.  IF THE SCOPE OF THE
COURT'S OPINION, APART FROM SOME OF ITS GENERAL OBSERVATIONS, IS THAT
THIS ORDINANCE IS AN INVIDIOUS DISCRIMINATION AGAINST DISTRIBUTORS OF
WHAT IS POLITELY CALLED LITERATURE, AND THEREFORE IS DEEMED AN
UNJUSTIFIABLE PROHIBITION OF FREEDOM OF UTTERANCE, THE DECISION LEAVES
UNTOUCHED WHAT ARE IN MY VIEW CONTROLLING CONSTITUTIONAL PRINCIPLES, IF
I AM CORRECT IN MY UNDERSTANDING OF WHAT IS HELD, AND I WOULD NOT BE
DISPOSED TO DISAGREE WITH SUCH A CONSTRUCTION OF THE ORDINANCE. 

MR. JUSTICE REED, DISSENTING: 

WHILE I APPRECIATE THE NECESSITY OF WATCHFULNESS TO AVOID ABRIDGMENTS
OF OUR FREEDOM OF EXPRESSION, IT IS IMPOSSIBLE FOR ME TO DISCOVER IN
THIS TRIVIAL TOWN POLICE REGULATION A VIOLATION OF THE FIRST
AMENDMENT.  NO IDEAS ARE BEING SUPPRESSED.  NO CENSORSHIP IS INVOLVED. 
THE FREEDOM TO TEACH OR PREACH BY WORD OR BOOK IS UNABRIDGED, SAVE ONLY
THE RIGHT TO CALL A HOUSEHOLDER TO THE DOOR OF HIS HOUSE TO RECEIVE THE
SUMMONER'S MESSAGE.  I CANNOT EXPAND THIS REGULATION TO A VIOLATION OF
THE FIRST AMENDMENT. 

FREEDOM TO DISTRIBUTE PUBLICATIONS IS OBVIOUSLY A PART OF THE GENERAL
FREEDOM GUARANTEED THE EXPRESSION OF IDEAS BY THE FIRST AMENDMENT.  IT
IS TRITE TO SAY THAT THIS FREEDOM OF EXPRESSION IS NOT UNLIMITED. 
OBSCENITY, DISLOYALTY AND PROVOCATIVES DO NOT COME WITHIN ITS
PROTECTION.  NEAR V. MINNESOTA, 283 U.S. 697, 712, 716; SCHENCK V.
UNITED STATES, 249 U.S. 47, 51; CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S.
568, 572, 574.  ALL AGREE THAT THERE MAY BE REASONABLE REGULATION OF
THE FREEDOM OF EXPRESSION.  CANTWELL V. CONNECTICUT, 310 U.S. 296,
304.  ONE CANNOT THROW DODGERS "BROADCAST IN THE STREETS."  SCHNEIDER
V. STATE, 308 U.S. 147, 161. 

THE ORDINANCE FORBIDS "ANY PERSON DISTRIBUTING HANDBILLS, CIRCULARS
OR OTHER ADVERTISEMENTS TO RING THE DOOR BELL, SOUND THE DOOR KNOCKER,
OR OTHERWISE SUMMON THE INMATE OR INMATES  ...  TO THE DOOR" TO RECEIVE
THE ADVERTISEMENT.  THE COURT'S OPINION SPEAKS OF PROHIBITIONS AGAINST
THE DISTRIBUTION OF "LITERATURE."  THE PRECISE MATTER DISTRIBUTED
APPEARS IN THE FOOTNOTE.  FN1  I DO NOT READ THE ORDINANCE AS
PROHIBITING THE DISTRIBUTION OF LITERATURE NOR CAN I APPRAISE THE
DODGER DISTRIBUTED AS FALLING INTO THAT CLASSIFICATION.  IF THE
ORDINANCE, IN MY VIEW, DID PROHIBIT THE DISTRIBUTION OF LITERATURE,
WHILE PERMITTING ALL OTHER CANVASSING, I SHOULD BELIEVE SUCH AN
ORDINANCE DISCRIMINATORY.  THIS ORDINANCE IS DIFFERENT.  THE MOST, IT
SEEMS TO ME, THAT CAN BE OR HAS BEEN READ INTO THE ORDINANCE IS A
PROHIBITION OF FREE DISTRIBUTION OF PRINTED MATTER BY SUMMONING INMATES
TO THEIR DOORS.  THERE ARE EXCELLENT REASONS TO SUPPORT A DETERMINATION
OF THE CITY COUNCIL THAT SUCH DISTRIBUTORS MAY NOT DISTURB HOUSEHOLDERS
WHILE PERMITTING SALESMEN AND OTHERS TO CALL THEM TO THE DOOR. 
PRACTICAL EXPERIENCE MAY WELL CONVINCE THE COUNCIL THAT IRRITATIONS
ARISE FREQUENTLY FROM THIS METHOD OF ADVERTISING.  THE CLASSIFICATION
IS CERTAINLY NOT DISCRIMINATORY.  FN2 

IF THE CITIZENS OF STRUTHERS DESIRE TO BE PROTECTED FROM THE
ANNOYANCE OF BEING CALLED TO THEIR DOORS TO RECEIVE PRINTED MATTER,
THERE IS TO MY MIND NO CONSTITUTIONAL PROVISION WHICH FORBIDS THEIR
MUNICIPAL COUNCIL FROM MODIFYING THE RULE THAT ANYONE MAY SOUND A CALL
FOR THE HOUSEHOLDER TO ATTEND HIS DOOR.  IT IS THE COUNCIL WHICH IS
ENTRUSTED BY THE CITIZENS WITH THE POWER TO DECLARE AND ABATE THE
MYRIAD NUISANCES WHICH DEVELOP IN A COMMUNITY.  ITS DETERMINATION
SHOULD NOT BE SET ASIDE BY THIS COURT UNLESS CLEARLY AND PATENTLY
UNCONSTITUTIONAL. 

THE ANTIQUITY AND PREVALENCE OF COLPORTAGE ARE RELIED ON TO SUPPORT
THE COURT'S DECISION.  BUT THE PRACTICE HAS PERSISTED BECAUSE THE
HOUSEHOLDER WAS ACQUIESCENT.  IT CAN HARDLY BE THOUGHT, HOWEVER, THAT
LONG INDULGENCE OF A PRACTICE WHICH MANY OR ALL CITIZENS HAVE WELCOMED
OR TOLERATED CREATES A CONSTITUTIONAL RIGHT TO ITS CONTINUANCE. 
CHANGING CONDITIONS HAVE BEGOTTEN MODIFICATION BY LAW OF MANY PRACTICES
ONCE DEEMED A PART OF THE INDIVIDUAL'S LIBERTY. 

THE FIRST AMENDMENT DOES NOT COMPEL A PEDESTRIAN TO PAUSE ON THE
STREET TO LISTEN TO THE ARGUMENT SUPPORTING ANOTHER'S VIEWS OF RELIGION
OR POLITICS.  ONCE THE DOOR IS OPENED, THE VISITOR MAY NOT INSERT A
FOOT AND INSIST ON A HEARING.  HE CERTAINLY MAY NOT ENTER THE HOME.  TO
KNOCK OR RING, HOWEVER, COMES CLOSE TO SUCH INVASIONS.  TO PROHIBIT
SUCH A CALL LEAVES OPEN DISTRIBUTION OF THE NOTICE ON THE STREET OR AT
THE HOME WITHOUT SIGNAL TO ANNOUNCE ITS DEPOSIT.  SUCH ASSURANCE OF
PRIVACY FALLS FAR SHORT OF AN ABRIDGMENT OF FREEDOM OF THE PRESS.  THE
ORDINANCE SEEMS A FAIR ADJUSTMENT OF THE PRIVILEGE OF DISTRIBUTORS AND
THE RIGHTS OF HOUSEHOLDERS. 

FN1  "RELIGION AS A WORLD REMEDY, THE EVIDENCE IN SUPPORT THEREOF. 
HEAR JUDGE RUTHERFORD, SUNDAY, JULY 28, 4 P.M., E.S.T. FREE.  ALL
PERSONS OF GOODWILL WELCOME, FREE.  COLUMBUS COLISEUM, OHIO STATE FAIR
GROUNDS."  (ON ONE SIDE.) 

"1940'S EVENT OF PARAMOUNT IMPORTANCE TO YOU.  WHAT IS IT?  THE
THEOCRATIC CONVENTION OF JEHOVAH'S WITNESSES.  FIVE DAYS - JULY 24-28 -
THIRTY CITIES.  ALL LOVERS OF RIGHTEOUSNESS - WELCOME.  THE STRANGE
FATE THREATENING ALL 'CHRISTENDOM' MAKES IT IMPERATIVE THAT YOU COME
AND HEAR THE PUBLIC ADDRESS ON RELIGION AS A WORLD REMEDY, THE EVIDENCE
IN SUPPORT THEREOF, BY JUDGE RUTHERFORD AT THE COLISEUM OF THE OHIO
STATE FAIR GROUNDS, COLUMBUS, OHIO, SUNDAY, JULY 28, AT 4 P.M., E.S.T.
'HE THAT HATH AN EAR TO HEAR' WILL COME TO ONE OF THE AUDITORIUMS OF
THE CONVENTION CITIES LISTED BELOW, TIED IN WITH COLUMBUS BY DIRECT
WIRE.  SOME OF THE 30 CITIES ARE (21 ARE LISTED).  FOR DETAILED
INFORMATION CONCERNING THESE CONVENTIONS WRITE WATCHTOWER CONVENTION
COMMITTEE, 117 ADAMS ST., BROOKLYN, N.Y."  (ON THE OTHER SIDE.) 

FN2  KEOKEE COKE CO. V. TAYLOR, 234 U.S. 224; GERMAN ALLIANCE
INSURANCE CO. V. KANSAS, 233 U.S. 389; HALL V. GEIGER-JONES CO., 242
U.S. 539; MINNESOTA V. PROBATE COURT, 309 U.S. 270; LABAR BOARD V.
JONES & LAUGHLIN CORP., 301 U.S. 1, 46; CARMICHAEL V. SOUTHERN COAL
CO., 301 U.S. 495, 509, 512. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON JOIN IN THIS DISSENT. 

SEE ALSO OPINION OF MR. JUSTICE JACKSON, POST, P. 166. 
..END :




















DOUGLAS V. JEANNETTE, 319 U.S. 157 


NO. 450.  ARGUED MARCH 10, 11, 1943.  - DECIDED MAY 3, 1943.  - 130 F.2D
652, AFFIRMED. 


1.  MEMBERS OF JEHOVAH'S WITNESSES, IN THEIR OWN BEHALF AND IN BEHALF
OF ALL OTHER JEHOVAH'S WITNESSES IN THE STATE AND IN ADJOINING STATES,
BROUGHT SUIT IN A FEDERAL DISTRICT COURT TO RESTRAIN A CITY AND ITS
MAYOR FROM ENFORCING AGAINST THEM AN ORDINANCE PROHIBITING THE
SOLICITATION OF ORDERS FOR MERCHANDISE WITHOUT FIRST PROCURING A
LICENSE FROM THE CITY AUTHORITIES AND PAYING A LICENSE TAX.  THE
COMPLAINT, PRAYING EQUITABLE RELIEF, ALLEGED, IN SUBSTANCE, THAT THE
DEFENDANTS, BY ARREST, DETENTION AND CRIMINAL PROSECUTION OF THE
COMPLAINANTS AND OTHER JEHOVAH'S WITNESSES, HAD SUBJECTED THEM TO
DEPRIVATION OF THEIR RIGHTS OF FREEDOM OF SPEECH, PRESS AND RELIGION;
AND THAT THE DEFENDANTS THREATEN TO CONTINUE TO ENFORCE THE ORDINANCE
BY ARRESTS AND PROSECUTIONS.  THE SUIT WAS NOT BASED NOR MAINTAINABLE
ON THE GROUND OF DIVERSITY OF CITIZENSHIP, BUT WAS ALLEGED TO ARISE
UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES, INCLUDING THE
CIVIL RIGHTS ACT OF 1871.  HELD: 

(1)  THE SUIT WAS WITHIN THE JURISDICTION OF THE DISTRICT COURT UNDER
28 U.S.C. SEC. 41(14) IRRESPECTIVE OF THE AMOUNT IN CONTROVERSY.  P.
161. 

(2)  THE FEDERAL DISTRICT COURT IN THE EXERCISE OF ITS DISCRETION
SHOULD HAVE REFUSED TO ENJOIN THE THREATENED CRIMINAL PROSECUTIONS IN
THE STATE COURTS.  P. 165. 

2.  THE GUARANTIES OF THE FIRST AMENDMENT ARE PROTECTED BY THE
FOURTEENTH AMENDMENT AGAINST ENCROACHMENT BY THE STATES.  P. 162. 

3.  ALLEGATIONS OF FACT SUFFICIENT TO SHOW DEPRIVATION OF THE RIGHT
OF FREE SPEECH UNDER THE FIRST AMENDMENT ARE SUFFICIENT TO ESTABLISH
DEPRIVATION OF A CONSTITUTIONAL RIGHT GUARANTEED BY THE FOURTEENTH, AND
TO STATE A CAUSE OF ACTION UNDER THE CIVIL RIGHTS ACT, WHENEVER IT
APPEARS THAT THE ABRIDGMENT OF THE RIGHT IS EFFECTED UNDER COLOR OF A
STATE STATUTE OR ORDINANCE.  P. 162. 

4.  THOUGH A FEDERAL COURT HAVE POWER AS SUCH TO DECIDE THE CAUSE, IT
SHOULD RAISE SUA SPONTE THE QUESTION OF WANT OF EQUITY JURISDICTION
WHERE ITS POWERS ARE INVOKED TO INTERFERE BY INJUNCTION WITH THREATENED
CRIMINAL PROSECUTIONS IN A STATE COURT.  P. 162. 

5.  IT IS THE POLICY OF CONGRESS GENERALLY TO LEAVE TO THE STATE
COURTS THE TRIAL OF CRIMINAL CASES ARISING UNDER STATE LAWS, SUBJECT TO
REVIEW BY THIS COURT OF ANY FEDERAL QUESTIONS INVOLVED, AND THE FEDERAL
COURTS SHOULD CONFORM TO THIS POLICY BY REFUSING TO INTERFERE WITH OR
EMBARRASS THREATENED PROCEEDINGS IN STATE COURTS SAVE IN THOSE
EXCEPTIONAL CASES WHICH CALL FOR THE INTERPOSITION OF A COURT OF EQUITY
TO PREVENT IRREPARABLE INJURY WHICH IS CLEAR AND IMMINENT; AND
EQUITABLE REMEDIES INFRINGING THIS INDEPENDENCE OF THE STATES - THOUGH
THEY MIGHT OTHERWISE BE GIVEN - SHOULD BE WITHHELD IF SOUGHT ON SLIGHT
OR INCONSEQUENTIAL GROUNDS.  P. 163. 

6.  IT DOES NOT APPEAR FROM THE RECORD THAT PETITIONERS HAVE BEEN
THREATENED WITH ANY INJURY OTHER THAN THAT INCIDENTAL TO ANY CRIMINAL
PROSECUTION BROUGHT LAWFULLY AND IN GOOD FAITH; OR THAT A FEDERAL COURT
OF EQUITY COULD RIGHTLY AFFORD PETITIONERS ANY PROTECTION WHICH THEY
COULD NOT SECURE BY PROMPT TRIAL IN THE STATE COURTS AND APPEAL PURSUED
TO THIS COURT; OR THAT, IN VIEW OF THE DECISION IN MURDOCK V.
PENNSYLVANIA, ANTE, P. 105, THERE IS GROUND FOR SUPPOSING THAT, IN
ORDER TO SECURE FOR THE FUTURE THE COMPLAINANTS' CONSTITUTIONAL RIGHTS,
THE INTERVENTION OF A FEDERAL COURT WILL BE EITHER NECESSARY OR
APPROPRIATE.  P. 164. 

DOUGLAS ET AL. V. CITY OF JEANNETTE ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 318 U.S. 749, TO REVIEW THE REVERSAL OF A DECREE, 39
F.SUPP.  32, ENJOINING THE ENFORCEMENT AGAINST PETITIONERS OF A
MUNICIPAL ORDINANCE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONERS BROUGHT THIS SUIT IN THE UNITED STATES DISTRICT COURT FOR
WESTERN PENNSYLVANIA TO RESTRAIN THREATENED CRIMINAL PROSECUTION OF
THEM IN THE STATE COURTS BY RESPONDENTS, THE CITY OF JEANNETTE (A
PENNSYLVANIA MUNICIPAL CORPORATION) AND ITS MAYOR, FOR VIOLATION OF A
CITY ORDINANCE WHICH PROHIBITS THE SOLICITATION OF ORDERS FOR
MERCHANDISE WITHOUT FIRST PROCURING A LICENSE FROM THE CITY AUTHORITIES
AND PAYING A LICENSE TAX.  THE ORDINANCE AS APPLIED IS HELD TO BE AN
UNCONSTITUTIONAL ABRIDGMENT OF FREE SPEECH, PRESS AND RELIGION IN
MURDOCK V. PENNSYLVANIA, ANTE, P. 105.  THE QUESTIONS DECISIVE OF THE
PRESENT CASE ARE WHETHER THE DISTRICT COURT HAS STATUTORY JURISDICTION
AS A FEDERAL COURT TO ENTERTAIN THE SUIT, AND WHETHER PETITIONERS HAVE
BY THEIR PLEADINGS AND PROOF ESTABLISHED A CAUSE OF ACTION IN EQUITY. 

THE CASE IS NOT ONE OF DIVERSITY OF CITIZENSHIP, SINCE SOME OF THE
PETITIONERS, LIKE RESPONDENTS, ARE CITIZENS OF PENNSYLVANIA.  THE BILL
OF COMPLAINT ALLEGES THAT THE NAMED PLAINTIFFS ARE JEHOVAH'S WITNESSES,
PERSONS WHO ENTERTAIN RELIGIOUS BELIEFS AND ENGAGE IN RELIGIOUS
PRACTICES WHICH IT DESCRIBES; THAT THE SUIT IS A CLASS SUIT BROUGHT IN
PETITIONERS' OWN BEHALF AND IN BEHALF OF ALL OTHER JEHOVAH'S WITNESSES
IN PENNSYLVANIA AND ADJOINING STATES TO RESTRAIN RESPONDENTS FROM
ENFORCING ORDINANCE NO. 60 OF THE CITY OF JEANNETTE AGAINST PETITIONERS
AND ALL OTHER JEHOVAH'S WITNESSES BECAUSE, AS APPLIED TO THEM, THE
ORDINANCE ABRIDGES THE GUARANTIES OF FREEDOM OF SPEECH, PRESS, AND
RELIGION OF THE FIRST AMENDMENT MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH. 

THE SUIT IS ALLEGED TO ARISE UNDER THE CONSTITUTION AND LAWS OF THE
UNITED STATES, INCLUDING THE CIVIL RIGHTS ACT OF 1871.  THE COMPLAINT
SETS UP THAT IN THE PRACTICE OF THEIR RELIGION AND IN CONFORMITY TO THE
TEACHINGS OF THE BIBLE, JEHOVAH'S WITNESSES MAKE, AND FOR MANY YEARS
HAVE MADE, HOUSE TO HOUSE DISTRIBUTION, AMONG THE PEOPLE OF THE CITY OF
JEANNETTE, OF CERTAIN PRINTED BOOKS AND PAMPHLETS SETTING FORTH THE
JEHOVAH'S WITNESSES' INTERPRETATIONS OF THE TEACHINGS OF THE BIBLE. 
MUNICIPAL ORDINANCE NO. 60 PROVIDES:  "THAT ALL PERSONS CANVASSING FOR
OR SOLICITING WITHIN SAID BOROUGH (NOW CITY OF JEANNETTE), ORDERS FOR
GOODS  ...  WARES OR MERCHANDISE OF ANY KIND, OR PERSONS DELIVERING
SUCH ARTICLES UNDER ORDERS SO OBTAINED OR SOLICITED" WITHOUT FIRST
PROCURING A LICENSE AND PAYING PRESCRIBED LICENSE TAXES, SHALL BE
PUNISHED BY FINE NOT EXCEEDING $100 AND COSTS, OR IF THE FINE IS NOT
PAID, BY IMPRISONMENT FROM FIVE TO THIRTY DAYS.  IT IS ALLEGED THAT IN
APRIL, 1939, RESPONDENTS ARRESTED AND PROSECUTED PETITIONERS AND OTHER
JEHOVAH'S WITNESSES FOR VIOLATION OF THE ORDINANCE BECAUSE OF THEIR
DESCRIBED ACTIVITIES IN DISTRIBUTING RELIGIOUS LITERATURE, WITHOUT THE
PERMITS REQUIRED BY THE ORDINANCE, AND THAT RESPONDENTS THREATEN TO
CONTINUE TO ENFORCE THE ORDINANCE BY ARRESTS AND PROSECUTIONS - ALL IN
VIOLATION OF PETITIONERS' CIVIL RIGHTS. 

NO PRELIMINARY OR INTERLOCUTORY INJUNCTION WAS GRANTED BUT THE
DISTRICT COURT, AFTER A TRIAL, HELD THE ORDINANCE INVALID, 39 F.SUPP. 
32, ON THE AUTHORITY OF REID V. BOROUGH OF BROOKVILLE, 39 F.SUPP.  30,
IN THAT IT DEPRIVED PETITIONERS OF THE RIGHTS OF FREEDOM OF PRESS AND
RELIGION GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS.  THE COURT
ENJOINED RESPONDENTS FROM ENFORCING THE ORDINANCE AGAINST PETITIONERS
AND OTHER JEHOVAH'S WITNESSES. 

THE COURT OF APPEALS FOR THE THIRD CIRCUIT SUSTAINED THE JURISDICTION
OF THE DISTRICT COURT, BUT REVERSED ON THE MERITS, 130 F.2D 652, ON THE
AUTHORITY OF JONES V. OPELIKA, 316 U.S. 584.  ONE JUDGE DISSENTED ON
THE GROUND THAT THE COMPLAINT DID NOT SUFFICIENTLY ALLEGE A VIOLATION
OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT SO AS TO ENTITLE
PETITIONERS TO RELIEF UNDER THE CIVIL RIGHTS ACT.  WE GRANTED
CERTIORARI, 318 U.S. 749, AND SET THE CASE FOR ARGUMENT WITH MURDOCK V.
PENNSYLVANIA, SUPRA. 

WE THINK IT PLAIN THAT THE DISTRICT COURT HAD JURISDICTION AS A
FEDERAL COURT TO HEAR AND DECIDE THE QUESTION OF THE CONSTITUTIONAL
VALIDITY OF THE ORDINANCE, ALTHOUGH THERE WAS NO ALLEGATION OR PROOF
THAT THE MATTER IN CONTROVERSY EXCEEDED $3,000.  BY 8 U.S.C. SEC.
43(DERIVED FROM SEC. 1 OF THE CIVIL RIGHTS ACT OF APRIL 20, 1871, 17
STAT. 13, CONTINUED WITHOUT SUBSTANTIAL CHANGE AS R.S. SEC. 1979) IT IS
PROVIDED THAT "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR
CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,
SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN
EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS." 

AS WE HELD IN HAGUE V. C.I.O., 307 U.S. 496, 507-14, 527-32, THE
DISTRICT COURTS OF THE UNITED STATES ARE GIVEN JURISDICTION BY 28
U.S.C. SEC. 41(14) OVER SUITS BROUGHT UNDER THE CIVIL RIGHTS ACT
WITHOUT THE ALLEGATION OR PROOF OF ANY JURISDICTIONAL AMOUNT.  NOT ONLY
DO PETITIONERS ALLEGE THAT THE PRESENT SUIT WAS BROUGHT UNDER THE CIVIL
RIGHTS ACT, BUT THEIR ALLEGATIONS PLAINLY SET OUT AN INFRINGEMENT OF
ITS PROVISIONS.  IN SUBSTANCE, THE COMPLAINT ALLEGES THAT RESPONDENTS,
PROCEEDING UNDER THE CHALLENGED ORDINANCE, BY ARREST, DETENTION AND BY
CRIMINAL PROSECUTIONS OF PETITIONERS AND OTHER JEHOVAH'S WITNESSES, HAD
SUBJECTED THEM TO DEPRIVATION OF THEIR RIGHTS OF FREEDOM OF SPEECH,
PRESS AND RELIGION SECURED BY THE CONSTITUTION, AND THE COMPLAINT SEEKS
EQUITABLE RELIEF FROM SUCH DEPRIVATION IN THE FUTURE. 

THE PARTICULAR PROVISION OF THE CONSTITUTION ON WHICH PETITIONERS
RELY IS THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, VIOLATION
OF WHICH THE DISSENTING JUDGE BELOW THOUGHT WAS NOT SUFFICIENTLY
ALLEGED TO ESTABLISH A BASIS FOR RELIEF UNDER THE CIVIL RIGHTS ACT. 
BUT WE THINK THIS OVERLOOKS THE SPECIAL RELATIONSHIP OF THE FOURTEENTH
AMENDMENT TO THE RIGHTS OF FREEDOM OF SPEECH, PRESS, AND RELIGION
GUARANTEED BY THE FIRST.  WE HAVE REPEATEDLY HELD THAT THE FOURTEENTH
AMENDMENT HAS MADE APPLICABLE TO THE STATES THE GUARANTIES OF THE
FIRST.  SCHNEIDER V. STATE, 308 U.S. 147, 160, N. 8 AND CASES CITED;
JAMISON V. TEXAS, 318 U.S. 413.  ALLEGATIONS OF FACT SUFFICIENT TO SHOW
DEPRIVATION OF THE RIGHT OF FREE SPEECH UNDER THE FIRST AMENDMENT ARE
SUFFICIENT TO ESTABLISH DEPRIVATION OF A CONSTITUTIONAL RIGHT
GUARANTEED BY THE FOURTEENTH, AND TO STATE A CAUSE OF ACTION UNDER THE
CIVIL RIGHTS ACT, WHENEVER IT APPEARS THAT THE ABRIDGMENT OF THE RIGHT
IS EFFECTED UNDER COLOR OF A STATE STATUTE OR ORDINANCE.  IT FOLLOWS
THAT THE BILL, WHICH AMPLY ALLEGES THE FACTS RELIED ON TO SHOW THE
ABRIDGMENT BY CRIMINAL PROCEEDINGS UNDER THE ORDINANCE, SETS OUT A CASE
OR CONTROVERSY WHICH IS WITHIN THE ADJUDICATORY POWER OF THE DISTRICT
COURT. 

NOTWITHSTANDING THE AUTHORITY OF THE DISTRICT COURT, AS A FEDERAL
COURT, TO HEAR AND DISPOSE OF THE CASE, PETITIONERS ARE ENTITLED TO THE
RELIEF PRAYED ONLY IF THEY ESTABLISH A CAUSE OF ACTION IN EQUITY.  WANT
OF EQUITY JURISDICTION, WHILE NOT GOING TO THE POWER OF THE COURT TO
DECIDE THE CAUSE, DI GIOVANNI V. CAMDEN INS. ASSN., 296 U.S. 64, 69;
PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, 181-82, MAY NEVERTHELESS, IN
THE DISCRETION OF THE COURT, BE OBJECTED TO ON ITS OWN MOTION.  TWIST
V. PRAIRIE OIL CO., 274 U.S. 684, 690; PENNSYLVANIA V. WILLIAMS, SUPRA,
185.  ESPECIALLY SHOULD IT DO SO WHERE ITS POWERS ARE INVOKED TO
INTERFERE BY INJUNCTION WITH THREATENED CRIMINAL PROSECUTIONS IN A
STATE COURT. 

THE POWER RESERVED TO THE STATES UNDER THE CONSTITUTION TO PROVIDE
FOR THE DETERMINATION OF CONTROVERSIES IN THEIR COURTS MAY BE
RESTRICTED BY FEDERAL DISTRICT COURTS ONLY IN OBEDIENCE TO
CONGRESSIONAL LEGISLATION IN CONFORMITY TO THE JUDICIARY ARTICLE OF THE
CONSTITUTION.  CONGRESS, BY ITS LEGISLATION, HAS ADOPTED THE POLICY,
WITH CERTAIN WELL DEFINED STATUTORY EXCEPTIONS, OF LEAVING GENERALLY TO
THE STATE COURTS THE TRIAL OF CRIMINAL CASES ARISING UNDER STATE LAWS,
SUBJECT TO REVIEW BY THIS COURT OF ANY FEDERAL QUESTIONS INVOLVED. 
HENCE, COURTS OF EQUITY IN THE EXERCISE OF THEIR DISCRETIONARY POWERS
SHOULD CONFORM TO THIS POLICY BY REFUSING TO INTERFERE WITH OR
EMBARRASS THREATENED PROCEEDINGS IN STATE COURTS SAVE IN THOSE
EXCEPTIONAL CASES WHICH CALL FOR THE INTERPOSITION OF A COURT OF EQUITY
TO PREVENT IRREPARABLE INJURY WHICH IS CLEAR AND IMMINENT; AND
EQUITABLE REMEDIES INFRINGING THIS INDEPENDENCE OF THE STATES - THOUGH
THEY MIGHT OTHERWISE BE GIVEN - SHOULD BE WITHHELD IF SOUGHT ON SLIGHT
OR INCONSEQUENTIAL GROUNDS.  DI GIOVANNI V. CAMDEN INS. ASSN., SUPRA,
73; MATTHEWS V. RODGERS, 284 U.S. 521, 525-26; CF. UNITED STATES EX
REL. KENNEDY V. TYLER, 269 U.S. 13; MASSACHUSETTS STATE GRANGE V.
BENTON, 272 U.S. 525. 

IT IS A FAMILIAR RULE THAT COURTS OF EQUITY DO NOT ORDINARILY
RESTRAIN CRIMINAL PROSECUTIONS.  NO PERSON IS IMMUNE FROM PROSECUTION
IN GOOD FAITH FOR HIS ALLEGED CRIMINAL ACTS.  ITS IMMINENCE, EVEN
THOUGH ALLEGED TO BE IN VIOLATION OF CONSTITUTIONAL GUARANTIES, IS NOT
A GROUND FOR EQUITY RELIEF SINCE THE LAWFULNESS OR CONSTITUTIONALITY OF
THE STATUTE OR ORDINANCE ON WHICH THE PROSECUTION IS BASED MAY BE
DETERMINED AS READILY IN THE CRIMINAL CASE AS IN A SUIT FOR AN
INJUNCTION.  DAVIS & FARNUM MFG. CO. V. LOS ANGELES, 189 U.S. 207;
FENNER V. BOYKIN, 271 U.S. 240.  WHERE THE THREATENED PROSECUTION IS BY
STATE OFFICERS FOR ALLEGED VIOLATIONS OF A STATE LAW, THE STATE COURTS
ARE THE FINAL ARBITERS OF ITS MEANING AND APPLICATION, SUBJECT ONLY TO
REVIEW BY THIS COURT ON FEDERAL GROUNDS APPROPRIATELY ASSERTED.  HENCE
THE ARREST BY THE FEDERAL COURTS OF THE PROCESSES OF THE CRIMINAL LAW
WITHIN THE STATES, AND THE DETERMINATION OF QUESTIONS OF CRIMINAL
LIABILITY UNDER STATE LAW BY A FEDERAL COURT OF EQUITY, ARE TO BE
SUPPORTED ONLY ON A SHOWING OF DANGER OF IRREPARABLE INJURY "BOTH GREAT
AND IMMEDIATE."  SPIELMAN MOTOR CO. V. DODGE, 295 U.S. 89, 95, AND
CASES CITED; BEAL V. MISSOURI PACIFIC R. CORP., 312 U.S. 45, 49, AND
CASES CITED; WATSON V. BUCK, 313 U.S. 387; WILLIAMS V. MILLER, 317 U.S.
599. 

THE TRIAL COURT FOUND THAT RESPONDENTS HAD PROSECUTED CERTAIN OF
PETITIONERS AND OTHER JEHOVAH'S WITNESSES FOR DISTRIBUTING THE
LITERATURE DESCRIBED IN THE COMPLAINT WITHOUT HAVING OBTAINED THE
LICENSE REQUIRED BY THE ORDINANCE, AND HAD DECLARED THEIR INTENTION
FURTHER TO ENFORCE THE ORDINANCE AGAINST PETITIONERS AND OTHER
JEHOVAH'S WITNESSES.  BUT THE COURT MADE NO FINDING OF THREATENED
IRREPARABLE INJURY TO PETITIONERS OR OTHERS, AND WE CANNOT SAY THAT THE
DECLARED INTENTION TO INSTITUTE OTHER PROSECUTIONS IS SUFFICIENT TO
ESTABLISH IRREPARABLE INJURY IN THE CIRCUMSTANCES OF THIS CASE. 

BEFORE THE PRESENT SUIT WAS BEGUN, CONVICTIONS HAD BEEN OBTAINED IN
THE STATE COURTS IN CASES NOS. 480-487, MURDOCK ET AL. V. PENNSYLVANIA,
SUPRA, WHICH WERE THEN PENDING ON APPEAL AND WHICH WERE BROUGHT TO THIS
COURT FOR REVIEW BY CERTIORARI CONTEMPORANEOUSLY WITH THE PRESENT
CASE.  IT DOES NOT APPEAR FROM THE RECORD THAT PETITIONERS HAVE BEEN
THREATENED WITH ANY INJURY OTHER THAN THAT INCIDENTAL TO EVERY CRIMINAL
PROCEEDING BROUGHT LAWFULLY AND IN GOOD FAITH, OR THAT A FEDERAL COURT
OF EQUITY BY WITHDRAWING THE DETERMINATION OF GUILT FROM THE STATE
COURTS COULD RIGHTLY AFFORD PETITIONERS ANY PROTECTION WHICH THEY COULD
NOT SECURE BY PROMPT TRIAL AND APPEAL PURSUED TO THIS COURT.  IN THESE
RESPECTS THE CASE DIFFERS FROM HAGUE V. C.I.O., SUPRA, 501-02, WHERE
LOCAL OFFICIALS FORCIBLY BROKE UP MEETINGS OF THE COMPLAINANTS AND IN
MANY INSTANCES FORCIBLY DEPORTED THEM FROM THE STATE WITHOUT TRIAL. 

THERE IS NO ALLEGATION HERE AND NO PROOF THAT RESPONDENTS WOULD NOT,
NOR CAN WE ASSUME THAT THEY WILL NOT, ACQUIESCE IN THE DECISION OF THIS
COURT HOLDING THE CHALLENGED ORDINANCE UNCONSTITUTIONAL AS APPLIED TO
PETITIONERS.  IF THE ORDINANCE HAD BEEN HELD CONSTITUTIONAL,
PETITIONERS COULD NOT COMPLAIN OF PENALTIES WHICH WOULD HAVE BEEN BUT
THE CONSEQUENCE OF THEIR VIOLATION OF A VALID STATE LAW. 

NOR IS IT ENOUGH TO JUSTIFY THE EXERCISE OF THE EQUITY JURISDICTION
IN THE CIRCUMSTANCES OF THIS CASE THAT THERE ARE NUMEROUS MEMBERS OF A
CLASS THREATENED WITH PROSECUTION FOR VIOLATION OF THE ORDINANCE.  IN
GENERAL THE JURISDICTION OF EQUITY TO AVOID MULTIPLICITY OF CIVIL SUITS
AT LAW IS RESTRICTED TO THOSE CASES WHERE THERE WOULD OTHERWISE BE SOME
NECESSITY FOR THE MAINTENANCE OF NUMEROUS SUITS BETWEEN THE SAME
PARTIES INVOLVING THE SAME ISSUES OF LAW OR FACT.  IT DOES NOT
ORDINARILY EXTEND TO CASES WHERE THERE ARE NUMEROUS PARTIES AND THE
ISSUES BETWEEN THEM AND THE ADVERSE PARTY - HERE THE STATE - ARE NOT
NECESSARILY IDENTICAL.  MATTHEWS V. RODGERS, SUPRA, 529-30, AND CASES
CITED.  FAR LESS SHOULD A FEDERAL COURT OF EQUITY ATTEMPT TO ENVISAGE
IN ADVANCE ALL THE DIVERSE ISSUES WHICH COULD ENGAGE THE ATTENTION OF
STATE COURTS IN PROSECUTIONS OF JEHOVAH'S WITNESSES FOR VIOLATIONS OF
THE PRESENT ORDINANCE, OR ASSUME TO DRAW TO A FEDERAL COURT THE
DETERMINATION OF THOSE ISSUES IN ADVANCE, BY A DECREE SAYING IN WHAT
CIRCUMSTANCES AND CONDITIONS THE APPLICATION OF THE CITY ORDINANCE WILL
BE DEEMED TO ABRIDGE FREEDOM OF SPEECH AND RELIGION.    IN ANY EVENT,
AN INJUCTION LOOKS TO THE FUTURE.  TEXAS CO. V. BROWN, 258 U.S. 466,
474; STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163, 182.  AND IN VIEW
OF THE DECISION RENDERED TODAY IN MURDOCK V. PENNSYLVANIA, SUPRA, WE
FIND NO GROUND FOR SUPPOSING THAT THE INTERVENTION OF A FEDERAL COURT,
IN ORDER TO SECURE PETITIONERS' CONSTITUTIONAL RIGHTS, WILL BE EITHER
NECESSARY OR APPROPRIATE. 

FOR THESE REASONS, ESTABLISHING THE WANT OF EQUITY IN THE CAUSE, WE
AFFIRM THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS DIRECTING THAT THE
BILL BE DISMISSED.  AFFIRMED. 

MR. JUSTICE JACKSON, CONCURRING IN THE RESULT IN THIS CASE AND
DISSENTING IN NOS. 480-487, MURDOCK V. PENNSYLVANIA, ANTE, P. 105, AND
NO. 238, MARTIN V. STRUTHERS, ANTE, P. 141: 

EXCEPT THE CASE OF DOUGLAS ET AL. V. JEANNETTE, ALL OF THESE CASES
ARE DECIDED UPON THE RECORD OF ISOLATED PROSECUTIONS IN WHICH
INFORMATION IS CONFINED TO A PARTICULAR ACT OF OFFENSE AND TO THE
BEHAVIOR OF AN INDIVIDUAL OFFENDER.  ONLY THE DOUGLAS RECORD GIVES A
COMPREHENSIVE STORY OF THE BROAD PLAN OF CAMPAIGN EMPLOYED BY JEHOVAH'S
WITNESSES AND ITS FULL IMPACT ON A LIVING COMMUNITY.  BUT THE FACTS OF
THIS CASE ARE PASSED OVER AS IRRELEVANT TO THE THEORY ON WHICH THE
COURT WOULD DECIDE ITS PARTICULAR ISSUE.  UNLESS WE ARE TO REACH
JUDGMENTS AS DID PLATO'S MEN WHO WERE CHAINED IN A CAVE SO THAT THEY
SAW NOTHING BUT SHADOWS, WE SHOULD CONSIDER THE FACTS OF THE DOUGLAS
CASE AT LEAST AS AN HYPOTHESIS TO TEST THE VALIDITY OF THE CONCLUSIONS
IN THE OTHER CASES.  THIS RECORD SHOWS US SOMETHING OF THE STRINGS AS
WELL AS THE MARIONETTES.  IT REVEALS THE PROBLEM OF THOSE IN LOCAL
AUTHORITY WHEN THE RIGHT TO PROSELYTE COMES IN CONTACT WITH WHAT MANY
PEOPLE HAVE AN IDEA IS THEIR RIGHT TO BE LET ALONE.  THE CHIEF JUSTICE
SAYS FOR THE COURT IN DOUGLAS THAT "IN VIEW OF THE DECISION RENDERED
TODAY IN MURDOCK V. PENNSYLVANIA, SUPRA, WE FIND NO GROUND FOR
SUPPOSING THAT THE INTERVENTION OF A FEDERAL COURT, IN ORDER TO SECURE
PETITIONERS' CONSTITUTIONAL RIGHTS, WILL BE EITHER NECESSARY OR
APPROPRIATE," WHICH COULD HARDLY BE SAID IF THE CONSTITUTIONAL ISSUES
PRESENTED BY THE FACTS OF THIS CASE ARE NOT SETTLED BY THE MURDOCK
CASE.  THE FACTS OF RECORD IN THE DOUGLAS CASE AND THEIR RELATION TO
THE FACTS OF THE OTHER CASES SEEM TO ME WORTH RECITAL AND CONSIDERATION
IF WE ARE REALISTICALLY TO WEIGH THE CONFLICTING CLAIMS OF RIGHTS IN
THE RELATED CASES TODAY DECIDED. 

FROM THE RECORD IN DOUGLAS WE LEARN: 

IN 1939, A "WATCH TOWER CAMPAIGN" WAS INSTITUTED BY JEHOVAH'S
WITNESSES IN JEANNETTE, PENNSYLVANIA, AN INDUSTRIAL CITY OF SOME 16,000
INHABITANTS.  FN1  EACH HOME WAS VISITED, A BELL WAS RUNG OR THE DOOR
KNOCKED UPON, AND THE HOUSEHOLDER ADVISED THAT THE WITNESS HAD
IMPORTANT INFORMATION.  IF THE HOUSEHOLDER WOULD LISTEN, A RECORD WAS
PLAYED ON THE PHONOGRAPH.  ITS SUBJECT WAS "SNARE AND RACKET."  THE
FOLLOWING WORDS ARE REPRESENTATIVE OF ITS CONTENTS:  "RELIGION IS WRONG
AND A SNARE BECAUSE IT DECEIVES THE PEOPLE, BUT THAT DOES NOT MEAN THAT
ALL WHO FOLLOW RELIGION ARE WILLINGLY BAD.  RELIGION IS A RACKET
BECAUSE IT HAS LONG BEEN USED AND IS STILL USED TO EXTRACT MONEY FROM
THE PEOPLE UPON THE THEORY AND PROMISE THAT THE PAYING OVER OF MONEY TO
A PRIEST WILL SERVE TO RELIEVE THE PARTY PAYING FROM PUNISHMENT AFTER
DEATH AND FURTHER INSURE HIS SALVATION."  THIS LINE OF ATTACK IS TAKEN
BY THE WITNESSES GENERALLY UPON ALL DENOMINATIONS, ESPECIALLY THE ROMAN
CATHOLIC.  THE HOUSEHOLDER WAS ASKED TO BUY A VARIETY OF LITERATURE FOR
A PRICE OR CONTRIBUTION.  THE PRICE WOULD BE TWENTY-FIVE CENTS FOR THE
BOOKS AND SMALLER SUMS FOR THE PAMPHLETS.  OFTENTIMES, IF HE WAS
UNWILLING TO PURCHASE, THE BOOK OR PAMPHLET WAS GIVEN TO HIM ANYWAY. 

WHEN THIS CAMPAIGN BEGAN, MANY COMPLAINTS FROM OFFENDED HOUSEHOLDERS
WERE RECEIVED, AND THREE OR FOUR OF THE WITNESSES WERE ARRESTED. 
THEREAFTER, THE "ZONE SERVANT" IN CHARGE OF THE CAMPAIGN CONFERRED WITH
THE MAYOR.  HE TOLD THE MAYOR IT WAS THEIR RIGHT TO CARRY ON THE
CAMPAIGN AND SHOWED HIM A DECISION OF THE UNITED STATES SUPREME COURT,
SAID TO HAVE THAT EFFECT, AS PROOF OF IT.  THE MAYOR TOLD HIM THAT THEY
WERE AT LIBERTY TO DISTRIBUTE THEIR LITERATURE IN THE STREETS OF THE
CITY AND THAT HE WOULD HAVE NO OBJECTION IF THEY DISTRIBUTED THE
LITERATURE FREE OF CHARGE AT THE HOUSES, BUT THAT THE PEOPLE OBJECTED
TO THEIR ATTEMPT TO FORCE THESE SALES, AND PARTICULARLY ON SUNDAY.  THE
MAYOR ASKED WHETHER IT WOULD NOT BE POSSIBLE TO COME ON SOME OTHER DAY
AND TO DISTRIBUTE THE LITERATURE WITHOUT SELLING IT. THE ZONE SERVANT
REPLIED THAT THAT WAS CONTRARY TO THEIR METHOD OF "DOING BUSINESS" AND
REFUSED.  HE ALSO TOLD THE MAYOR THAT HE WOULD BRING ENOUGH WITNESSES
INTO THE CITY OF JEANNETTE TO GET THE JOB DONE WHETHER THE MAYOR LIKED
IT OR NOT.  THE MAYOR URGED THEM TO AWAIT THE OUTCOME OF AN APPEAL
WHICH WAS THEN PENDING IN THE OTHER CASES AND LET THE MATTER TAKE ITS
COURSE THROUGH THE COURTS.  THIS, TOO, WAS REFUSED, AND THE THREAT TO
BRING MORE PEOPLE THAN THE MAYOR'S POLICE FORCE COULD COPE WITH WAS
REPEATED. 

ON PALM SUNDAY OF 1939, THE THREAT WAS MADE GOOD.  OVER 100 OF THE
WITNESSES APPEARED.  THEY WERE STRANGERS TO THE CITY AND ARRIVED IN
UPWARDS OF TWENTY-FIVE AUTOMOBILES.  THE AUTOMOBILES WERE PARKED
OUTSIDE THE CITY LIMITS, AND HEADQUARTERS WERE SET UP IN A GASOLINE
STATION WITH TELEPHONE FACILITIES THROUGH WHICH THE DIRECTOR OF THE
CAMPAIGN COULD BE NOTIFIED WHEN TROUBLE OCCURRED.  HE FURNISHED BONDS
FOR THE WITNESSES AS THEY WERE ARRESTED.  AS THEY BEGAN THEIR WORK,
AROUND 9:00 O'CLOCK IN THE MORNING, TELEPHONE CALLS BEGAN TO COME IN TO
THE POLICE HEADQUARTERS, AND COMPLAINTS IN LARGE VOLUME WERE MADE ALL
DURING THE DAY.  THEY EXCEEDED THE NUMBER THAT THE POLICE COULD HANDLE,
AND THE FIRE DEPARTMENT WAS CALLED OUT TO ASSIST.  THE WITNESSES CALLED
AT HOMES SINGLY AND IN GROUPS, AND SOME OF THE HOMES COMPLAINED THAT
THEY WERE CALLED UPON SEVERAL TIMES.  TWENTY-ONE WITNESSES WERE
ARRESTED.  ONLY THOSE WERE ARRESTED WHERE DEFINITE PROOF WAS OBTAINABLE
THAT THE LITERATURE HAD BEEN OFFERED FOR SALE OR A SALE HAD BEEN MADE
FOR A PRICE.  THREE WERE LATER DISCHARGED FOR INADEQUACIES IN THIS
PROOF, AND EIGHTEEN WERE CONVICTED.  THE ZONE SERVANT FURNISHED APPEAL
BONDS. 

THE NATIONAL STRUCTURE OF THE JEHOVAH'S WITNESS MOVEMENT IS ALSO
SOMEWHAT REVEALED IN THIS TESTIMONY.  AT THE HEAD OF THE MOVEMENT IN
THIS COUNTRY IS THE WATCH TOWER BIBLE & TRACT SOCIETY, A CORPORATION
ORGANIZED UNDER THE LAWS OF PENNSYLVANIA, BUT HAVING ITS PRINCIPAL
PLACE OF BUSINESS IN BROOKLYN, N.Y.  IT PRINTS ALL PAMPHLETS,
MANUFACTURES ALL BOOKS, SUPPLIES ALL PHONOGRAPHS AND RECORDS, AND
PROVIDES OTHER MATERIALS FOR THE WITNESSES.  IT "ORDAINS" THESE
WITNESSES BY FURNISHING EACH, ON A BASIS WHICH DOES NOT CLEARLY APPEAR,
A CERTIFICATE THAT HE IS A MINISTER OF THE GOSPEL.  ITS OUTPUT IS LARGE
AND ITS REVENUES MUST BE CONSIDERABLE.  LITTLE IS REVEALED OF ITS
AFFAIRS.  ONE OF ITS "ZONE SERVANTS" TESTIFIED THAT ITS CORRESPONDENCE
IS SIGNED ONLY WITH THE NAME OF THE CORPORATION AND ANONYMITY AS TO ITS
PERSONNEL IS ITS POLICY.  THE ASSUMPTION THAT IT IS A "NON-PROFIT
CHARITABLE" CORPORATION MAY BE TRUE, BUT IT IS WITHOUT SUPPORT BEYOND
MERE ASSERTION.  IN NONE OF THESE CASES HAS THE ASSERTION BEEN
SUPPORTED BY SUCH USUAL EVIDENCE AS A BALANCE SHEET OR AN INCOME
STATEMENT.  WHAT ITS MANUFACTURING COSTS AND REVENUES ARE, WHAT
SALARIES OR BONUSES IT PAYS, WHAT CONTRACTS IT HAS FOR SUPPLIES OR
SERVICES WE SIMPLY DO NOT KNOW.  THE EFFORT OF COUNSEL FOR JEANNETTE TO
OBTAIN INFORMATION, BOOKS AND RECORDS OF THE LOCAL "COMPANIES" OF
WITNESSES ENGAGED IN THE JEANNETTE CAMPAIGN IN THE TRIAL WAS MET BY
CONTRADICTORY STATEMENTS AS TO THE METHODS AND MEANING OF SUCH MEAGER
ACCOUNTS AS WERE PRODUCED. 

THE PUBLISHING OUTPUT OF THE WATCH TOWER CORPORATION IS DISPOSED OF
THROUGH CONVERTS, SOME OF WHOM ARE FULL-TIME AND SOME PART-TIME
MINISTERS.  THESE ARE ORGANIZED INTO GROUPS OR COMPANIES UNDER THE
DIRECTION OF "ZONE SERVANTS."  IT IS THEIR PURPOSE TO CARRY ON IN A
THOROUGH MANNER SO THAT EVERY HOME IN THE COMMUNITIES IN WHICH THEY
WORK MAY BE REGULARLY VISITED THREE OR FOUR TIMES A YEAR.  THE FULL
TIME WITNESSES ACQUIRE THEIR LITERATURE FROM THE WATCH TOWER BIBLE &
TRACT SOCIETY AT A FIGURE WHICH ENABLES THEM TO DISTRIBUTE IT AT THE
PRICES PRINTED THEREON WITH A SUBSTANTIAL DIFFERENTIAL.  SOME OF THE
BOOKS THEY ACQUIRE FOR 5[ AND DISPOSE OF FOR A CONTRIBUTION OF 25[.  ON
OTHERS, THE MARGIN IS LESS.  PART-TIME MINISTERS HAVE A DIFFERENTIAL
BETWEEN THE 20[ WHICH THEY REMIT TO THE WATCH TOWER SOCIETY AND THE 25[
WHICH IS THE CONTRIBUTION THEY ASK FOR THE BOOKS.  WE ARE TOLD THAT
MANY OF THE WITNESSES GIVE AWAY A SUBSTANTIAL QUANTITY OF THE
LITERATURE TO PEOPLE WHO MAKE NO CONTRIBUTIONS.  APART FROM THE FACT
THAT THIS DIFFERENTIAL EXISTS AND THAT IT ENABLES THE DISTRIBUTORS TO
MEET IN WHOLE OR IN PART THEIR LIVING EXPENSES, IT HAS PROVEN
IMPOSSIBLE IN THESE CASES TO LEARN THE EXACT RESULTS OF THE CAMPAIGNS
FROM A FINANCIAL POINT OF VIEW.  THERE IS EVIDENCE THAT THE GROUP
ACCUMULATED A SUBSTANTIAL AMOUNT FROM THE DIFFERENTIALS, BUT THE
TRACING OF THE MONEY WAS NOT POSSIBLE BECAUSE OF THE FAILURE TO OBTAIN
RECORDS AND THE FAILURE, APPARENTLY, TO KEEP THEM. 

THE LITERATURE THUS DISTRIBUTED IS VOLUMINOUS AND REPETITIOUS. 
CHARACTERIZATION IS RISKY, BUT A FEW QUOTATIONS WILL INDICATE SOMETHING
OF ITS TEMPER. 

TAKING AS REPRESENTATIVE THE BOOK "ENEMIES," OF WHICH J. F.
RUTHERFORD, THE LAWYER WHO LONG HEADED THIS GROUP, IS THE AUTHOR, WE
FIND THE FOLLOWING:  "THE GREATEST RACKET EVER INVENTED AND PRACTICED
IS THAT OF RELIGION.  THE MOST CRUEL AND SEDUCTIVE PUBLIC ENEMY IS THAT
WHICH EMPLOYS RELIGION TO CARRY ON THE RACKET, AND BY WHICH MEANS THE
PEOPLE ARE DECEIVED AND THE NAME OF ALMIGHTY GOD IS REPROACHED.  THERE
ARE NUMEROUS SYSTEMS OF RELIGION, BUT THE MOST SUBTLE, FRAUDULENT AND
INJURIOUS TO HUMANKIND IS THAT WHICH IS GENERALLY LABELED THE
'CHRISTIAN RELIGION,' BECAUSE IT HAS THE APPEARANCE OF A WORSHIPFUL
DEVOTION TO THE SUPREME BEING, AND THEREBY EASILY MISLEADS MANY HONEST
AND SINCERE PERSONS."  ID. AT 144-145.  IT ANALYZES THE INCOME OF THE
ROMAN CATHOLIC HIERARCHY AND ANNOUNCES THAT IT IS "THE GREAT RACKET, A
RACKET THAT IS GREATER THAN ALL OTHER RACKETS COMBINED."  ID. AT 178. 
IT ALSO SAYS UNDER THE CHAPTER HEADING "SONG OF THE HARLOT," "REFERRING
NOW TO THE FOREGOING SCRIPTURAL DEFINITION OF HARLOT:  WHAT RELIGIOUS
SYSTEM EXACTLY FITS THE PROPHECIES RECORDED IN GOD'S WORD?  THERE IS
BUT ONE ANSWER, AND THAT IS, THE ROMAN CATHOLIC CHURCH ORGANIZATION." 
ID. AT 204-205.  "THOSE CLOSE OR NEARBY AND DEPENDENT UPON THE MAIN
ORGANIZATION, BEING OF THE SAME STRIPE, PICTURE THE JEWISH AND
PROTESTANT CLERGY AND OTHER ALLIES OF THE HIERARCHY WHO TAG ALONG
BEHIND THE HIERARCHY AT THE PRESENT TIME TO DO THE BIDDING OF THE OLD
'WHORE'."  ID. AT 222.  "SAYS THE PROPHET OF JEHOVAH:  'IT SHALL COME
TO PASS IN THAT DAY, THAT TYRE (MODERN TYRE, THE ROMAN CATHOLIC
HIERARCHY ORGANIZATION) SHALL BE FORGOTTEN.'  FORGOTTEN BY WHOM?  BY
HER FORMER ILLICIT PARAMOURS WHO HAVE COMMITTED FORNICATION WITH HER." 
ID. AT 264.  THROUGHOUT THE LITERATURE, STATEMENTS OF THIS KIND APPEAR
AMIDST SCRIPTURAL COMMENT AND PROPHECY, DENUNCIATION OF DEMONOLOGY,
WHICH IS USED TO CHARACTERIZE THE ROMAN CATHOLIC RELIGION, CRITICISM OF
GOVERNMENT AND THOSE IN AUTHORITY, ADVOCACY OF OBEDIENCE TO THE LAW OF
GOD INSTEAD OF THE LAW OF MAN, AND AN INTERPRETATION OF THE LAW OF GOD
AS THEY SEE IT. 

THE SPIRIT AND TEMPER OF THIS CAMPAIGN IS MOST FAIRLY STATED PERHAPS
IN THE WORDS, AGAIN OF RUTHERFORD, IN HIS BOOK "RELIGION," PP. 196
198: 

"GOD'S FAITHFUL SERVANTS GO FROM HOUSE TO HOUSE TO BRING THE MESSAGE
OF THE KINGDOM TO THOSE WHO RESIDE THERE, OMITTING NONE, NOT EVEN THE
HOUSES OF THE ROMAN CATHOLIC HIERARCHY, AND THERE THEY GIVE WITNESS TO
THE KINGDOM BECAUSE THEY ARE COMMANDED BY THE MOST HIGH TO DO SO.
'THEY SHALL ENTER IN AT THE WINDOWS LIKE A THIEF.'  THEY DO NOT LOOT
NOR BREAK INTO THE HOUSES, BUT THEY SET UP THEIR PHONOGRAPHS BEFORE THE
DOORS AND WINDOWS AND SEND THE MESSAGE OF THE KINGDOM RIGHT INTO THE
HOUSES INTO THE EARS OF THOSE WHO MIGHT WISH TO HEAR; AND WHILE THOSE
DESIRING TO HEAR ARE HEARING, SOME OF THE 'SOURPUSSES' ARE COMPELLED TO
HEAR.  LOCUSTS INVADE THE HOMES OF THE PEOPLE AND EVEN EAT THE VARNISH
OFF THE WOOD AND EAT THE WOOD TO SOME EXTENT.  LIKEWISE GOD'S FAITHFUL
WITNESSES, LIKENED UNTO LOCUSTS, GET THE KINGDOM MESSAGE RIGHT INTO THE
HOUSE AND THEY TAKE THE VENEER OFF THE RELIGIOUS THINGS THAT ARE IN
THAT HOUSE, INCLUDING CANDLES AND 'HOLY WATER', REMOVE THE SUPERSTITION
FROM THE MINDS OF THE PEOPLE, AND SHOW THEM THAT THE DOCTRINES THAT
HAVE BEEN TAUGHT TO THEM ARE WOOD, HAY AND STUBBLE, DESTRUCTIBLE BY
FIRE, AND THEY CANNOT WITHSTAND THE HEAT.  THE PEOPLE ARE ENABLED TO
LEARN THAT 'PURGATORY' IS A BOGEYMAN, SET UP BY THE AGENTS OF SATAN TO
FRIGHTEN THE PEOPLE INTO THE RELIGIOUS ORGANIZATIONS, WHERE THEY MAY BE
FLEECED OF THEIR HARD-EARNED MONEY.  THUS THE KINGDOM MESSAGE PLAGUES
THE RELIGIONISTS, AND THE CLERGY FIND THAT THEY ARE UNABLE TO PREVENT
IT. THEREFORE, AS DESCRIBED BY THE PROPHET, THE MESSAGE COMES TO THEM
LIKE A THIEF THAT ENTERS IN AT THE WINDOWS, AND THIS MESSAGE IS A
WARNING TO THOSE WHO ARE ON THE INSIDE THAT JESUS CHRIST HAS COME, AND
THEY REMEMBER HIS WARNING WORDS, TO WIT:  'BEHOLD, I COME AS A THIEF.' 
(REVELATION 16:15.)  THE DAY OF ARMAGEDDON IS VERY CLOSE, AND THAT DAY
COMES UPON THE WORLD IN GENERAL LIKE A THIEF IN THE NIGHT."    THE DAY
OF ARMAGEDDON, TO WHICH ALL OF THIS IS PRELUDE, IS TO BE A VIOLENT AND
BLOODY ONE, FOR THEN SHALL BE SLAIN ALL "DEMONOLOGISTS," INCLUDING MOST
OF THOSE WHO REJECT THE TEACHINGS OF JEHOVAH'S WITNESSES. 

IN THE MURDOCK CASE, ON ANOTHER SUNDAY MORNING OF THE FOLLOWING LENT,
WE AGAIN FIND THE WITNESSES IN JEANNETTE, TRAVELLING BY TWOS AND THREES
AND CARRYING CASES FOR THE BOOKS AND PHONOGRAPHS.  THIS TIME EIGHT WERE
ARRESTED, AS AGAINST THE 21 ARRESTED ON THE PRECEDING PALM SUNDAY
INVOLVED IN THE DOUGLAS CASE.    IN THE STRUTHERS CASE, WE FIND THE
WITNESS KNOCKING ON THE DOOR OF A TOTAL STRANGER AT 4:00 ON SUNDAY
AFTERNOON, JULY 7TH.  THE HOUSEHOLDER'S FOURTEEN YEAR OLD SON ANSWERED,
AND, AT THE WITNESS'S REQUEST, CALLED HIS MOTHER FROM THE KITCHEN.  HIS
MOTHER HAD PREVIOUSLY BECOME "VERY MUCH DISGUSTED ABOUT GOING TO THE
DOOR" TO RECEIVE LEAFLETS, PARTICULARLY SINCE ANOTHER PERSON HAD ON A
PREVIOUS OCCASION CALLED HER TO THE DOOR AND TOLD HER, AS SHE
TESTIFIED, "THAT I WAS DOOMED TO GO TO HELL BECAUSE I WOULD NOT LET
THIS LITERATURE IN MY HOME FOR MY CHILDREN TO READ."  SHE TESTIFIED
THAT THE WITNESS "SHOVED IN THE DOOR" THE CIRCULAR BEING DISTRIBUTED,
FN2  AND THAT SHE "COULDN'T DO MUCH MORE THAN TAKE" IT, AND SHE
PROMPTLY TORE IT UP IN THE PRESENCE OF THE WITNESS, FOR WHILE SHE
BELIEVED "IN THE WORSHIP OF GOD," SHE DID NOT "CARE TO TALK TO
EVERYBODY" AND DID NOT "BELIEVE THAT ANYONE NEEDS TO BE SENT FROM DOOR
TO DOOR TO TELL US HOW TO WORSHIP."  THE RECORD IN THE STRUTHERS CASE
IS EVEN MORE SPARSE THAN THAT IN THE MURDOCK CASE, BUT THE HOUSEHOLDER
DID TESTIFY THAT AT THE TIME SHE WAS GIVEN THE CIRCULAR THE WITNESS
"TOLD ME THAT A NUMBER OF THEM WERE IN JAIL AND WOULD I CALL THE CHIEF
OF POLICE AND ASK THAT THEIR WORKERS MIGHT BE RELEASED." 

SUCH IS THE ACTIVITY WHICH IT IS CLAIMED NO PUBLIC AUTHORITY CAN
EITHER REGULATE OR TAX.  THIS CLAIM IS SUBSTANTIALLY, IF NOT QUITE,
SUSTAINED TODAY.  I DISSENT - A DISAGREEMENT INDUCED IN NO SMALL PART
BY THE FACTS RECITED. 

AS INDIVIDUALS MANY OF US WOULD NOT FIND THIS ACTIVITY SERIOUSLY
OBJECTIONABLE.  THE SUBJECT OF THE DISPUTES INVOLVED MAY BE A MATTER OF
INDIFFERENCE TO OUR PERSONAL CREEDS.  MOREOVER, WE WORK IN OFFICES
AFFORDING AMPLE SHELTER FROM SUCH IMPORTUNITIES AND LIVE IN HOMES WHERE
WE DO NOT PERSONALLY ANSWER SUCH CALLS AND BEAR THE BURDEN OF TURNING
AWAY THE UNWELCOME.  BUT THESE OBSERVATIONS DO NOT HOLD TRUE FOR ALL. 
THE STUBBORN PERSISTENCE OF THE OFFICIALS OF SMALLER COMMUNITIES IN
THEIR EFFORTS TO REGULATE THIS CONDUCT INDICATES A STRONGLY HELD
CONVICTION THAT THE COURT'S MANY DECISIONS IN THIS FIELD ARE AT ODDS
WITH THE REALITIES OF LIFE IN THOSE COMMUNITIES WHERE THE HOUSEHOLDER
HIMSELF DROPS WHATEVER HE MAY BE DOING TO ANSWER THE SUMMONS TO THE
DOOR AND IS APT TO HAVE POSITIVE RELIGIOUS CONVICTIONS OF HIS OWN. 
FN3 

THREE SUBJECTS DISCUSSED IN THE OPINIONS IN MURDOCK V. PENNSYLVANIA
AND MARTIN V. STRUTHERS TEND TO OBSCURE THE EFFECT OF THE DECISIONS. 
THE FIRST OF THESE RELATES TO THE FORM OF THE ORDINANCES IN QUESTION. 
ONE CANNOT DETERMINE WHETHER THIS IS MERE MAKEWEIGHT OR WHETHER IT IS
AN ARGUMENT ADDRESSED TO THE CONSTITUTIONALITY OF THE ORDINANCES; AND
WHATEVER IT IS, I CANNOT RECONCILE THE TREATMENT OF THE SUBJECT BY THE
TWO OPINIONS.  IN MURDOCK THE COURT SAYS "THE PRESENT ORDINANCE IS NOT
NARROWLY DRAWN TO SAFEGUARD THE PEOPLE OF THE COMMUNITY IN THEIR HOMES
AGAINST THE EVILS OF SOLICITATIONS," AND AGAIN "THE ORDINANCE IS NOT
NARROWLY DRAWN TO PREVENT OR CONTROL ABUSES OR EVILS ARISING FROM"
SOLICITATION FROM HOUSE TO HOUSE.  IT FOLLOWS THE RECENT TENDENCY TO
INVALIDATE ORDINANCES IN THIS GENERAL FIELD THAT ARE NOT "NARROWLY
DRAWN." 

BUT IN STRUTHERS THE ORDINANCE IS CERTAINLY NARROWLY DRAWN.  YET THE
COURT DENIES THE HOUSEHOLDER THE NARROW PROTECTION IT GIVES.  THE CITY
POINTS OUT THAT THIS ORDINANCE WAS NARROWLY DRAWN TO MEET A PARTICULAR
EVIL IN THAT COMMUNITY WHERE MANY MEN MUST WORK NIGHTS AND REST BY
DAY.  I HAD SUPPOSED THAT OUR QUESTION, EXCEPT IN RESPECT TO ORDINANCES
INVALID ON THEIR FACE, IS ALWAYS WHETHER THE ORDINANCE AS APPLIED
DENIES CONSTITUTIONAL RIGHTS.  NOTHING IN THE CONSTITUTION SAYS OR
IMPLIES THAT REAL RIGHTS ARE MORE VULNERABLE TO A NARROW ORDINANCE THAN
TO A BROAD ONE.  I THINK OUR FUNCTION IS TO TAKE MUNICIPAL ORDINANCES
AS THEY ARE CONSTRUED BY THE STATE COURTS AND APPLIED BY LOCAL
AUTHORITIES AND TO DECIDE THEIR CONSTITUTIONALITY ACCORDINGLY, RATHER
THAN TO UNDERTAKE CENSORING THEIR DRAFTSMANSHIP. 

SECONDLY, IN NEITHER OPINION DOES THE COURT GIVE CLEARCUT
CONSIDERATION TO THE PARTICULAR ACTIVITIES CLAIMED TO BE ENTITLED TO
CONSTITUTIONAL IMMUNITY, BUT IN ONE CASE BLENDS WITH THEM CONDUCT OF
OTHERS NOT IN QUESTION, AND IN THE OTHER CONFUSES WITH THE RIGHTS IN
QUESTION HERE CERTAIN ALLEGED RIGHTS OF OTHERS WHICH THESE PETITIONERS
ARE IN NO POSITION TO ASSERT AS THEIR OWN. 

IN THE MURDOCK CASE, THE COURT DECIDES TO "RESTORE TO THEIR HIGH,
CONSTITUTIONAL POSITION THE LIBERTIES OF ITINERANT EVANGELISTS."  THAT
IT DOES WITHOUT STATING WHAT THOSE PRIVILEGES ARE, BEYOND DECLARING
THAT "THIS FORM OF RELIGIOUS ACTIVITY OCCUPIES THE SAME HIGH ESTATE
UNDER THE FIRST AMENDMENT AS DO WORSHIP IN THE CHURCHES AND PREACHING
FROM THE PULPITS."  HOW CAN WE DISPOSE OF THE QUESTIONS IN THIS CASE
MERELY BY CITING THE UNQUESTIONED RIGHT TO MINISTER TO CONGREGATIONS
VOLUNTARILY ATTENDING SERVICES? 

SIMILARLY, IN THE STRUTHERS CASE THE COURT FAILS TO DEAL WITH THE
BEHAVIOR OF THE WITNESSES ON ITS OWN MERITS.  IT REACHES ITS DECISION
BY WEIGHING AGAINST THE ORDINANCE THERE IN QUESTION NOT ONLY THE RIGHTS
OF THE WITNESS BUT ALSO "THE RIGHT OF THE INDIVIDUAL HOUSEHOLDER TO
DETERMINE WHETHER HE IS WILLING TO RECEIVE HER MESSAGE"; CONCLUDES THAT
THE ORDINANCE "SUBSTITUTES THE JUDGMENT OF THE COMMUNITY FOR THE
JUDGMENT OF THE INDIVIDUAL HOUSEHOLDER"; AND DECIDES THE CASE ON THE
BASIS THAT "IT SUBMITS THE DISTRIBUTER TO CRIMINAL PUNISHMENT FOR
ANNOYING THE PERSON ON WHOM HE CALLS, EVEN THOUGH THE RECIPIENT OF THE
LITERATURE DISTRIBUTED IS IN FACT GLAD TO RECEIVE IT."  BUT THE
HOSPITABLE HOUSEHOLDER THUS THROWN IN THE BALANCE WITH THE WITNESS TO
MAKE WEIGHT AGAINST THE CITY ORDINANCE IS WHOLLY HYPOTHETICAL AND THE
ASSUMPTION IS CONTRARY TO THE EVIDENCE WE HAVE RECITED.  DOUBTLESS
THERE EXIST FELLOW SPIRITS WHO WELCOME THESE CALLERS, BUT THE ISSUE
HERE IS WHAT ARE THE RIGHTS OF THOSE WHO DO NOT AND WHAT IS THE RIGHT
OF THE COMMUNITY TO PROTECT THEM IN THE EXERCISE OF THEIR OWN FAITH IN
PEACE.  THAT ISSUE - THE REAL ISSUE - SEEMS NOT TO BE DEALT WITH. 

THIRD, BOTH OPINIONS SUGGEST THAT THERE ARE EVILS IN THIS CONDUCT
THAT A MUNICIPALITY MAY DO SOMETHING ABOUT.  BUT NEITHER IDENTIFIES IT,
NOR LAYS DOWN ANY WORKABLE GUIDE IN SO DOING.  IN MURDOCK THE COURT
SAYS THAT "THE ORDINANCE IS NOT NARROWLY DRAWN TO PREVENT OR CONTROL
ABUSES OR EVILS ARISING" FROM HOUSE-TO-HOUSE SOLICITATION.  WHAT EVILS
OR ABUSES?  IT IS ALSO SAID IN MURDOCK THAT WE "HAVE SOMETHING VERY
DIFFERENT FROM A REGISTRATION SYSTEM UNDER WHICH THOSE GOING FROM HOUSE
TO HOUSE ARE REQUIRED TO GIVE THEIR NAMES, ADDRESSES AND OTHER MARKS OF
IDENTIFICATION TO THE AUTHORITIES."  WHAT MORE?  THE FEE OF COURSE. 
BUT WE ARE TOLD THE FEE IS NOT "A NOMINAL FEE IMPOSED AS A REGULATORY
MEASURE TO DEFRAY THE EXPENSES OF POLICING THE ACTIVITIES IN
QUESTION."  IS IT IMPLIED THAT SUCH A REGISTRATION FOR SUCH A FEE WOULD
BE VALID?  WHEREIN DOES THE SUGGESTION DIFFER FROM THE ORDINANCE WE ARE
STRIKING DOWN?  THIS ORDINANCE DID NOTHING MORE, IT DID NOT GIVE
DISCRETION TO REFUSE THE LICENSE NOR TO CENSOR THE LITERATURE.  THE FEE
RANGED FROM $1.50 A DAY FOR ONE DAY TO LESS THAN A DOLLAR A DAY FOR TWO
WEEKS.  THERE IS NOT A SYLLABLE OF EVIDENCE THAT THIS AMOUNT EXCEEDS
THE COST TO THE COMMUNITY OF POLICING THIS ACTIVITY.  IF THIS
SUGGESTION OF NEW DEVICES IS NOT ILLUSORY, WHY IS THE PRESENT ORDINANCE
INVALID?  THE CITY OF STRUTHERS DECIDED MERELY THAT ONE WITH NO MORE
BUSINESS AT A HOME THAN THE DELIVERY OF ADVERTISING MATTER SHOULD NOT
OBTRUDE HIMSELF FARTHER BY ANNOUNCING THE FACT OF DELIVERY.  HE WAS
FREE TO MAKE THE DISTRIBUTION IF HE LEFT THE HOUSEHOLDER UNDISTURBED,
TO TAKE IT IN IN HIS OWN TIME.  THE COURT SAYS THE CITY HAS NOT EVEN
THIS MUCH LEEWAY IN ORDERING ITS AFFAIRS, HOWEVER COMPLICATED THEY MAY
BE AS THE RESULT OF ROUND-THE-CLOCK INDUSTRIAL ACTIVITY.  IF THE LOCAL
AUTHORITIES MUST DRAW CLOSER AIM AT EVILS THAN THEY DID IN THESE CASES
I DOUBT THAT THEY EVER CAN HIT THEM.  WHAT NARROW AREA OF REGULATION
EXISTS UNDER THESE DECISIONS?  THE STRUTHERS OPINION SAYS, "THE DANGERS
OF DISTRIBUTION CAN SO EASILY BE CONTROLLED BY TRADITIONAL LEGAL
METHODS."  IT SUGGESTS THAT THE CITY MAY "BY IDENTIFICATION DEVICES
CONTROL THE ABUSE OF THE PRIVILEGE BY CRIMINALS POSING AS CANVASSERS." 
OF COURSE TO REQUIRE REGISTRATION AND LICENSE IS ONE OF THE FEW
PRACTICAL "IDENTIFICATION DEVICES."  MERELY GIVING ONE'S NAME AND HIS
ADDRESS TO THE AUTHORITIES WOULD AFFORD THEM BASIS FOR INVESTIGATING
WHO THE STRANGE CALLERS ARE AND WHAT THEIR RECORD HAS BEEN.  AND THAT
IS WHAT MURDOCK PROHIBITS THE CITY FROM ASKING.  IF THE ENTIRE COURSE
OF CONCERTED CONDUCT REVEALED TO US IS IMMUNE, I SHOULD THINK IT
NEITHER FAIR NOR WISE TO THROW OUT TO THE CITIES ENCOURAGEMENT TO TRY
NEW RESTRAINTS.  IF SOME PART OF IT PASSES THE BOUNDARY OF IMMUNITY, I
THINK WE SHOULD SAY WHAT PART AND WHY IN THESE CASES WE ARE DENYING THE
RIGHT TO REGULATE IT.  THE SUGGESTION IN STRUTHERS THAT "THE PROBLEM
MUST BE WORKED OUT BY EACH COMMUNITY FOR ITSELF" IS SOMEWHAT IRONICAL
IN VIEW OF THE FATE OF THE ORDINANCES HERE INVOLVED. 

OUR DIFFERENCE OF OPINION CANNOT FAIRLY BE GIVEN THE COLOR OF A
DISAGREEMENT AS TO WHETHER THE CONSTITUTIONAL RIGHTS OF JEHOVAH'S
WITNESSES SHOULD BE PROTECTED IN SO FAR AS THEY ARE RIGHTS.  THESE
WITNESSES, IN COMMON WITH ALL OTHERS, HAVE EXTENSIVE RIGHTS TO
PROSELYTE AND PROPAGANDIZE.  THESE OF COURSE INCLUDE THE RIGHT TO
OPPOSE AND CRITICIZE THE ROMAN CATHOLIC CHURCH OR ANY OTHER
DENOMINATION.  THESE RIGHTS ARE, AND SHOULD BE HELD TO BE, AS EXTENSIVE
AS ANY ORDERLY SOCIETY CAN TOLERATE IN RELIGIOUS DISPUTATION.  THE REAL
QUESTION IS WHERE THEIR RIGHTS END AND THE RIGHTS OF OTHERS BEGIN.  THE
REAL TASK OF DETERMINING THE EXTENT OF THEIR RIGHTS ON BALANCE WITH THE
RIGHTS OF OTHERS IS NOT MET BY PRONOUNCEMENT OF GENERAL PROPOSITIONS
WITH WHICH THERE IS NO DISAGREEMENT. 

IF WE SHOULD STRIP THESE CASES TO THE UNDERLYING QUESTIONS, I FIND
THEM TOO DIFFICULT AS CONSTITUTIONAL PROBLEMS TO BE DISPOSED OF BY A
VAGUE BUT FERVENT TRANSCENDENTALISM. 

IN MY VIEW, THE FIRST AMENDMENT ASSURES THE BROADEST TOLERABLE
EXERCISE OF FREE SPEECH, FREE PRESS, AND FREE ASSEMBLY, NOT MERELY FOR
RELIGIOUS PURPOSES, BUT FOR POLITICAL, ECONOMIC, SCIENTIFIC, NEWS, OR
INFORMATIONAL ENDS AS WELL.  WHEN LIMITS ARE REACHED WHICH SUCH
COMMUNICATIONS MUST OBSERVE, CAN ONE GO FARTHER UNDER THE CLOAK OF
RELIGIOUS EVANGELISM?  DOES WHAT IS OBSCENE, OR COMMERCIAL, OR ABUSIVE,
OR INCITING BECOME LESS SO IF EMPLOYED TO PROMOTE A RELIGIOUS
IDEOLOGY?  I HAD NOT SUPPOSED THAT THE RIGHTS OF SECULAR AND NON
RELIGIOUS COMMUNICATIONS WERE MORE NARROW OR IN ANY WAY INFERIOR TO
THOSE OF AVOWED RELIGIOUS GROUPS. 

IT MAY BE ASKED WHY THEN DOES THE FIRST AMENDMENT SEPARATELY MENTION
FREE EXERCISE OF RELIGION?  THE HISTORY OF RELIGIOUS PERSECUTION GIVES
THE ANSWER.  RELIGION NEEDED SPECIFIC PROTECTION BECAUSE IT WAS SUBJECT
TO ATTACK FROM A SEPARATE QUARTER.  IT WAS OFTEN CLAIMED THAT ONE WAS
AN HERETIC AND GUILTY OF BLASPHEMY BECAUSE HE FAILED TO CONFORM IN MERE
BELIEF OR IN SUPPORT OF PREVAILING INSTITUTIONS AND THEOLOGY.  IT WAS
TO ASSURE RELIGIOUS TEACHING AS MUCH FREEDOM AS SECULAR DISCUSSION,
RATHER THAN TO ASSURE IT GREATER LICENSE, THAT LED TO ITS SEPARATE
STATEMENT. 

THE FIRST AMENDMENT GREW OUT OF AN EXPERIENCE WHICH TAUGHT THAT
SOCIETY CANNOT TRUST THE CONSCIENCE OF A MAJORITY TO KEEP ITS RELIGIOUS
ZEAL WITHIN THE LIMITS THAT A FREE SOCIETY CAN TOLERATE.  I DO NOT
THINK IT ANY MORE INTENDED TO LEAVE THE CONSCIENCE OF A MINORITY TO FIX
ITS LIMITS.  CIVIL GOVERNMENT CAN NOT LET ANY GROUP RIDE ROUGH-SHOD
OVER OTHERS SIMPLY BECAUSE THEIR "CONSCIENCES" TELL THEM TO DO SO. 

A COMMON-SENSE TEST AS TO WHETHER THE COURT HAS STRUCK A PROPER
BALANCE OF THESE RIGHTS IS TO ASK WHAT THE EFFECT WOULD BE IF THE RIGHT
GIVEN TO THESE WITNESSES SHOULD BE EXERCISED BY ALL SECTS AND
DENOMINATIONS.  IF EACH COMPETING SECT IN THE UNITED STATES WENT AFTER
THE HOUSEHOLDER BY THE SAME METHODS, I SHOULD THINK IT INTOLERABLE.  IF
A MINORITY CAN PUT ON THIS KIND OF DRIVE IN A COMMUNITY, WHAT CAN A
MAJORITY RESORTING TO THE SAME TACTICS DO TO INDIVIDUALS AND
MINORITIES?  CAN WE GIVE TO ONE SECT A PRIVILEGE THAT WE COULD NOT GIVE
TO ALL, MERELY IN THE HOPE THAT MOST OF THEM WILL NOT RESORT TO IT?
RELIGIOUS FREEDOM IN THE LONG RUN DOES NOT COME FROM THIS KIND OF
LICENSE TO EACH SECT TO FIX ITS OWN LIMITS, BUT COMES OF HARDHEADED
FIXING OF THOSE LIMITS BY NEUTRAL AUTHORITY WITH AN EYE TO THE WIDEST
FREEDOM TO PROSELYTE COMPATIBLE WITH THE FREEDOM OF THOSE SUBJECT TO
PROSELYTING PRESSURES. 

I CANNOT ACCEPT THE HOLDING IN THE MURDOCK CASE THAT THE BEHAVIOR
REVEALED HERE "OCCUPIES THE SAME HIGH ESTATE UNDER THE FIRST AMENDMENT
AS DO WORSHIP IN THE CHURCHES AND PREACHING FROM THE PULPITS."  TO PUT
THEM ON THE SAME CONSTITUTIONAL PLANE SEEMS TO ME TO HAVE A DANGEROUS
TENDENCY TOWARDS DISCREDITING RELIGIOUS FREEDOM. 

NEITHER CAN I THINK IT AN ESSENTIAL PART OF FREEDOM THAT RELIGIOUS
DIFFERENCES BE AIRED IN LANGUAGE THAT IS OBSCENE, ABUSIVE, OR INCITING
TO RETALIATION.  WE HAVE HELD THAT A JEHOVAH'S WITNESS MAY NOT CALL A
PUBLIC OFFICER A "GOD DAMNED RACKETEER" AND A "DAMNED FASCIST," BECAUSE
THAT IS TO USE "FIGHTING WORDS," AND SUCH ARE NOT PRIVILEGED. 
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568.  HOW THEN CAN THE COURT
TODAY HOLD IT A "HIGH CONSTITUTIONAL PRIVILEGE" TO GO TO HOMES,
INCLUDING THOSE OF DEVOUT CATHOLICS ON PALM SUNDAY MORNING, AND THRUST
UPON THEM LITERATURE CALLING THEIR CHURCH A "WHORE" AND THEIR FAITH A
"RACKET"?  FN4    NOR AM I CONVINCED THAT WE CAN HAVE FREEDOM OF
RELIGION ONLY BY DENYING THE AMERICAN'S DEEP-SEATED CONVICTION THAT HIS
HOME IS A REFUGE FROM THE PULLING AND HAULING OF THE MARKET PLACE AND
THE STREET.  FOR A STRANGER TO CORNER A MAN IN HIS HOME, SUMMON HIM TO
THE DOOR AND PUT HIM IN THE POSITION EITHER OF ARGUING HIS RELIGION OR
OF ORDERING ONE OF UNKNOWN DISPOSITION TO LEAVE IS A QUESTIONABLE USE
OF RELIGIOUS FREEDOM.  FN5 

I FIND IT IMPOSSIBLE TO BELIEVE THAT THE STRUTHERS CASE CAN BE SOLVED
BY REFERENCE TO THE STATEMENT THAT "THE AUTHORS OF THE FIRST AMENDMENT
KNEW THAT NOVEL AND UNCONVENTIONAL IDEAS MIGHT DISTURB THE COMPLACENT,
BUT THEY CHOSE TO ENCOURAGE A FREEDOM WHICH THEY BELIEVED ESSENTIAL IF
VIGOROUS ENLIGHTENMENT WAS EVER TO TRIUMPH OVER SLOTHFUL IGNORANCE."  I
DOUBT IF ONLY THE SLOTHFULLY IGNORANT WISH REPOSE IN THEIR HOMES, OR
THAT THE FOREFATHERS INTENDED TO OPEN THE DOOR TO SUCH FORCED
"ENLIGHTENMENT" AS WE HAVE HERE. 

IN THESE CASES, LOCAL AUTHORITIES CAUGHT BETWEEN THE OFFENDED
HOUSEHOLDERS AND THE DRIVE OF THE WITNESSES, HAVE BEEN HARD PUT TO KEEP
THE PEACE OF THEIR COMMUNITIES.  THEY HAVE INVOKED OLD ORDINANCES THAT
ARE CRUDE AND CLUMSY FOR THE PURPOSE.  I SHOULD THINK THAT THE SINGULAR
PERSISTENCE OF THE TURMOIL ABOUT JEHOVAH'S WITNESSES, ONE WHICH SEEMS
TO RESULT FROM THE WORK OF NO OTHER SECT, WOULD SUGGEST TO THIS COURT A
THOROUGH EXAMINATION OF THEIR METHODS TO SEE IF THEY IMPINGE UNDULY ON
THE RIGHTS OF OTHERS.  INSTEAD OF THAT THE COURT HAS, IN ONE WAY AFTER
ANOTHER, TIED THE HANDS OF ALL LOCAL AUTHORITY AND MADE THE AGGRESSIVE
METHODS OF THIS GROUP THE LAW OF THE LAND. 

THIS COURT IS FOREVER ADDING NEW STORIES TO THE TEMPLES OF
CONSTITUTIONAL LAW, AND THE TEMPLES HAVE A WAY OF COLLAPSING WHEN ONE
STORY TOO MANY IS ADDED.  SO IT WAS WITH LIBERTY OF CONTRACT, WHICH WAS
DISCREDITED BY BEING OVERDONE.  THE COURT IS ADDING A NEW PRIVILEGE TO
OVERRIDE THE RIGHTS OF OTHERS TO WHAT HAS BEFORE BEEN REGARDED AS
RELIGIOUS LIBERTY.  IN SO DOING IT NEEDLESSLY CREATES A RISK OF
DISCREDITING A WISE PROVISION OF OUR CONSTITUTION WHICH PROTECTS ALL -
THOSE IN HOMES AS WELL AS THOSE OUT OF THEM - IN THE PEACEFUL, ORDERLY
PRACTICE OF THE RELIGION OF THEIR CHOICE BUT WHICH GIVES NO RIGHT TO
FORCE IT UPON OTHERS. 

CIVIL LIBERTIES HAD THEIR ORIGIN AND MUST FIND THEIR ULTIMATE
GUARANTY IN THE FAITH OF THE PEOPLE.  IF THAT FAITH SHOULD BE LOST,
FIVE OR NINE MEN IN WASHINGTON COULD NOT LONG SUPPLY ITS WANT. 
THEREFORE WE MUST DO OUR UTMOST TO MAKE CLEAR AND EASILY UNDERSTANDABLE
THE REASONS FOR DECIDING THESE CASES AS WE DO.  FORTHRIGHT OBSERVANCE
OF RIGHTS PRESUPPOSES THEIR FORTHRIGHT DEFINITION. 

I THINK THAT THE MAJORITY HAS FAILED IN THIS DUTY.  I THEREFORE
DISSENT IN MURDOCK AND STRUTHERS AND CONCUR IN THE RESULT IN DOUGLAS. 

I JOIN IN THE OPINIONS OF MR. JUSTICE REED IN MURDOCK AND STRUTHERS,
AND IN THAT OF MR. JUSTICE FRANKFURTER IN MURDOCK. 

FN1  SIXTEENTH ANNUAL CENSUS OF THE UNITED STATES (1940), POPULATION,
VOLUME I (CENSUS BUREAU OF THE UNITED STATES DEPARTMENT OF COMMERCE) P.
922.  THE CITY OF JEANNETTE IS INCLUDED IN WESTMORELAND COUNTY, SHOWN
BY THE 1940 CENSUS TO HAVE A POPULATION OF 303,411, AN INCREASE OVER
1930 AND 1920.  IBID.  THE 1936 CENSUS OF RELIGIOUS BODIES SHOWS THAT
OF THE PEOPLE IN WESTMORELAND COUNTY 168,608 WERE AFFILIATED WITH SOME
RELIGIOUS BODY, 80,276 OF THEM WITH THE ROMAN CATHOLIC CHURCH.  CENSUS
OF RELIGIOUS BODIES (1936), VOLUME I (CENSUS BUREAU OF THE UNITED
STATES DEPARTMENT OF COMMERCE) PP. 809-814.  ACCORDING TO UNPUBLISHED
INFORMATION IN THE FILES OF THE CENSUS BUREAU, THE 1936 CENSUS OF
RELIGIOUS BODIES SHOWS THAT THERE WERE IN THE CITY OF JEANNETTE 5,520
ROMAN CATHOLICS.  THUS IT APPEARS THAT THE PERCENTAGE OF CATHOLICS IN
THE CITY IS SOMEWHAT HIGHER THAN IN THE COUNTY AS A WHOLE. 

FN2  THIS READS AS FOLLOWS: 

"RELIGION AS A WORLD REMEDY, THE EVIDENCE IN SUPPORT THEREOF.  HEAR
JUDGE RUTHERFORD, SUNDAY, JULY 28, 4 P.M., E.S.T. FREE, ALL PERSONS OF
GOODWILL WELCOME, FREE.  COLUMBUS COLISEUM, OHIO STATE FAIR GROUNDS." 
(ON ONE SIDE.) 

"1940'S EVENT OF PARAMOUNT IMPORTANCE TO YOU.  WHAT IS IT?  THE
THEOCRATIC CONVENTION OF JEHOVAH'S WITNESSES.  FIVE DAYS - JULY 24-28 -
THIRTY CITIES.  ALL LOVERS OF RIGHTEOUSNESS - WELCOME.  THE STRANGE
FATE THREATENING ALL 'CHRISTENDOM' MAKES IT IMPERATIVE THAT YOU COME
AND HEAR THE PUBLIC ADDRESS ON RELIGION AS A WORLD REMEDY, THE EVIDENCE
IN SUPPORT THEREOF, BY JUDGE RUTHERFORD AT THE COLISEUM OF THE OHIO
STATE FAIR GROUNDS, COLUMBUS, OHIO, SUNDAY, JULY 28, AT 4 P.M., E.S.T.
'HE THAT HATH AN EAR TO HEAR' WILL COME TO ONE OF THE AUDITORIUMS OF
THE CONVENTION CITIES LISTED BELOW, TIED IN WITH COLUMBUS BY DIRECT
WIRE.  SOME OF THE 30 CITIES ARE  ...  (21 ARE LISTED).  FOR DETAILED
INFORMATION CONCERNING THESE CONVENTIONS WRITE WATCHTOWER CONVENTION
COMMITTEE, 117 ADAMS ST., BROOKLYN, N.Y."  (ON THE OTHER SIDE.) 

FN3  COMPARE CHAFEE, FREEDOM OF SPEECH IN THE UNITED STATES (1941) P.
407:  "I CANNOT HELP WONDERING WHETHER THE JUSTICES OF THE SUPREME
COURT ARE QUITE AWARE OF THE EFFECT OF ORGANIZED FRONT-DOOR INTRUSIONS
UPON PEOPLE WHO ARE NOT SHELTERED FROM ZEALOTS AND IMPOSTORS BY A STAFF
OF SERVANTS OR THE LOCKED ENTRANCE OF AN APARTMENT HOUSE." 

FN4  COMPARE VALENTINE V. CHRESTENSEN, 316 U.S. 52, PERMITTING A BAN
ON DISTRIBUTION OF A HANDBILL CONTAINING A CIVIC APPEAL ON ONE SIDE AND
A COMMERCIAL ADVERTISEMENT ON THE OTHER. 

FN5  SEE CHAFEE, SUPRA FOOTNOTE 3, PP. 406-407. 

MR. JUSTICE FRANKFURTER JOINS IN THESE VIEWS. 
..END :












UNITED STATES V. LEPOWITCH, 318 U.S. 702 


NO. 629.  ARGUED APRIL 8, 1943.  - DECIDED APRIL 19, 1943.  - 48
F.SUPP.  846, REVERSED. 


1.  IT IS A VIOLATION OF 18 U.S.C. SEC. 76 TO IMPERSONATE AND ACT AS A
FEDERAL OFFICER, WITH INTENT TO OBTAIN FROM A PERSON INFORMATION
CONCERNING THE WHEREABOUTS OF ANOTHER, ALTHOUGH THE INFORMATION MAY BE
VALUELESS TO THE PERSON FROM WHOM IT IS SOUGHT.  P. 704. 

2.  THE WORDS "INTENT TO DEFRAUD," AS USED IN 18 U.S.C. SEC. 76, ARE
APPLICABLE WHERE THE DEFENDANTS, BY ARTIFICE AND DECEIT, HAVE SOUGHT TO
CAUSE THE DECEIVED PERSON TO FOLLOW SOME COURSE HE WOULD NOT HAVE
PURSUED BUT FOR THE DECEITFUL CONDUCT.  P. 704. 

UNITED STATES V. LEPOWITCH ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF MISSOURI, EASTERN DIVISION. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT SUSTAINING A
DEMURRER TO AN INDICTMENT FOR VIOLATION OF 18 U.S.C. SEC. 76. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE DEFENDANTS ARE CHARGED WITH IMPERSONATING FEDERAL BUREAU OF
INVESTIGATION OFFICERS AND BY THAT MEANS ATTEMPTING TO ELICIT
INFORMATION FROM ONE PERSON CONCERNING THE WHEREABOUTS OF ANOTHER. 
THEY WERE INDICTED UNDER 18 U.S.C. SEC. 76, THE FIRST BRANCH OF WHICH
INCLUDES TWO ELEMENTS:  IMPERSONATION OF AN OFFICER OF THE GOVERNMENT
AND ACTING AS SUCH WITH INTENT TO DEFRAUD EITHER THE UNITED STATES OR
ANY PERSON.  FN1  THE DISTRICT JUDGE SUSTAINED A DEMURRER TO THE
INDICTMENT, HOLDING THAT THE CONDUCT OF THE DEFENDANTS, "WHILE HIGHLY
REPREHENSIBLE, DOES NOT COME WITHIN THE TERMS OF THE STATUTE."  FN2  HE
APPARENTLY CONCLUDED THAT THE COUNT OF THE INDICTMENT UNDER
CONSIDERATION DID NOT, WITHIN THE MEANING OF THE STATUTE, MAKE
SUFFICIENT ALLEGATIONS EITHER OF IMPERSONATION OR OF ACTING WITH INTENT
TO DEFRAUD.  SINCE THE DECISION BELOW WAS BASED ON A CONSTRUCTION OF
THE STATUTE, THE CASE WAS PROPERLY BROUGHT HERE BY THE GOVERNMENT UNDER
THE CRIMINAL APPEALS ACT, 18 U.S.C. SEC. 682, AND 28 U.S.C. SEC. 345. 

GOVERNMENT OFFICIALS ARE IMPERSONATED BY ANY PERSONS WHO "ASSUME TO
ACT IN THE PRETENDED CHARACTER."  UNITED STATES V. BARNOW, 239 U.S. 74,
77.  THE MOST GENERAL ALLEGATION OF IMPERSONATION OF A GOVERNMENT
OFFICIAL, THEREFORE, SUFFICIENTLY CHARGES THIS ELEMENT OF THE OFFENSE. 
THE VALIDITY OF THIS PORTION OF THE INDICTMENT WAS NOT CONTESTED HERE. 

WE HOLD THAT THE WORDS "INTENT TO DEFRAUD," IN THE CONTEXT OF THIS
STATUTE, DO NOT REQUIRE MORE THAN THAT THE DEFENDANTS HAVE, BY ARTIFICE
AND DECEIT, SOUGHT TO CAUSE THE DECEIVED PERSON TO FOLLOW SOME COURSE
HE WOULD NOT HAVE PURSUED BUT FOR THE DECEITFUL CONDUCT.  FN3  IF THE
STATUTORY LANGUAGE ALONE HAD BEEN USED, THE INDICTMENT WOULD HAVE BEEN
PROOF AGAINST DEMURRER UNDER LAMAR V. UNITED STATES, 241 U.S. 103, 116;
PIERCE V. UNITED STATES, 314 U.S. 306, 307; AND THIS INDICTMENT HAS
MERELY BEEN MADE MORE ELABORATE THAN THAT IN THE LAMAR CASE BY THE
ADDITION OF A DESCRIPTION OF THE NATURE OF THE ALLEGED FRAUD.  IN ANY
CASE, THIS BRANCH OF THE STATUTE COVERS THE ACQUISITION OF INFORMATION
BY IMPERSONATION ALTHOUGH THE INFORMATION MAY BE WHOLLY VALUELESS TO
ITS GIVER.  THIS RESULT IS REQUIRED BY UNITED STATES V. BARNOW, SUPRA,
80, IN WHICH WE HELD THAT THE PURPOSE OF THE STATUTE WAS "TO MAINTAIN
THE GENERAL GOOD REPUTE AND DIGNITY OF THE (GOVERNMENT) SERVICE
ITSELF," AND CITED WITH APPROVAL CASES WHICH, INTERPRETING AN ANALOGOUS
STATUTE, SAID:  "IT IS NOT ESSENTIAL TO CHARGE OR PROVE AN ACTUAL
FINANCIAL OR PROPERTY LOSS TO MAKE A CASE UNDER THE STATUTE."  HAAS V.
HENKEL, 216 U.S. 462, 480; UNITED STATES V. PLYLER, 222 U.S. 15. 

THE FIRST CLAUSE OF THIS STATUTE, THE ONLY ONE UNDER CONSIDERATION
HERE, DEFINES ONE OFFENSE; THE SECOND CLAUSE DEFINES ANOTHER.  WHILE
MORE THAN MERE DECEITFUL ATTEMPT TO AFFECT THE COURSE OF ACTION OF
ANOTHER IS REQUIRED UNDER THE SECOND CLAUSE OF THE STATUTE, WHICH
SPEAKS OF AN INTENT TO OBTAIN A "VALUABLE THING," THE VERY ABSENCE OF
THESE WORDS OF LIMITATION IN THE FIRST PORTION OF THE ACT PERSUADES US
THAT, UNDER IT, A PERSON MAY BE DEFRAUDED ALTHOUGH HE PARTS WITH
SOMETHING OF NO MEASURABLE VALUE AT ALL.  REVERSED. 

FN1  "FALSELY PRETENDING TO BE UNITED STATES OFFICER.  - WHOEVER WITH
INTENT TO DEFRAUD EITHER THE UNITED STATES OR ANY PERSON, SHALL FALSELY
ASSUME OR PRETEND TO BE AN OFFICER OR EMPLOYEE ACTING UNDER THE
AUTHORITY OF THE UNITED STATES, OR ANY DEPARTMENT, OR ANY OFFICER OF
THE GOVERNMENT THEREOF, OR UNDER THE AUTHORITY OF ANY CORPORATION OWNED
OR CONTROLLED BY THE UNITED STATES, AND SHALL TAKE UPON HIMSELF TO ACT
AS SUCH, OR SHALL IN SUCH PRETENDED CHARACTER DEMAND OR OBTAIN FROM ANY
PERSON OR FROM THE UNITED STATES, OR ANY DEPARTMENT, OR ANY OFFICER OF
THE GOVERNMENT THEREOF, OR ANY CORPORATION OWNED OR CONTROLLED BY THE
UNITED STATES, ANY MONEY, PAPER, DOCUMENT, OR OTHER VALUABLE THING,
SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN THREE
YEARS, OR BOTH." 

FN2  THE INDICTMENT CONTAINED TWO COUNTS.  THE SECOND, BASED ON THE
SAME ACTS OF THE APPELLEES, WAS RESTED ON THE SECOND BRANCH OF THE
STATUTE AND THE INFORMATION SOUGHT WAS SAID TO BE THE "VALUABLE THING"
REQUIRED BY THE ACT.  WHILE INSISTING HERE THAT THE SECOND COUNT WAS
NOT SUBJECT TO THE DEMURRER, THE GOVERNMENT DOES NOT ASK FOR REVIEW OF
THE RULING WITH REFERENCE TO IT. 

FN3  FOR A MORE LIMITED CONSTRUCTION OF SIMILAR WORDS IN A DIFFERENT
STATUTORY CONTEXT, SEE UNITED STATES V. COHN, 270 U.S. 339. 

MR. JUSTICE RUTLEDGE CONCURS IN THE RESULT. 

MR. JUSTICE ROBERTS BELIEVES THAT THE JUDGMENT SHOULD BE AFFIRMED. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













BOARD OF COMM'RS V. SEBER, 318 U.S. 705 


NO. 556.  ARGUED MARCH 3, 4, 1943.  - DECIDED APRIL 19, 1943.  - 130
F.2D 663, AFFIRMED. 


1.  LANDS THERETOFORE PURCHASED WITH RESTRICTED FUNDS DERIVED FROM AN
OIL AND GAS LEASE OF RESTRICTED ALLOTTED LANDS OF A CREEK INDIAN, HELD,
UNDER THE ACT OF JUNE 20, 1936, IMMUNE FROM TAX BY OKLAHOMA FOR THE
YEAR 1937, WHERE, ON THE ASSESSMENT DATE, THE INDIAN OWNED A LIFE
ESTATE IN SUCH LANDS SUBJECT TO RESTRICTIONS AGAINST ALIENATION EXCEPT
WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR.  P. 709. 

(A)  THE TAX IMMUNITY GRANTED BY THE ACT OF JUNE 20, 1936, WAS NOT
LIMITED TO LANDS PURCHASED FOR LANDLESS INDIANS.  P. 710. 

(B)  AN INDIAN HAS "TITLE" WITHIN THE MEANING OF THE ACT IF HIS
INTEREST IN THE PROPERTY IS SUCH THAT, BUT FOR THE ACT, HE WOULD BE
SUBJECTED TO THE TAX.  P. 711. 

2.  LANDS THERETOFORE PURCHASED WITH RESTRICTED FUNDS DERIVED FROM AN
OIL AND GAS LEASE OF RESTRICTED ALLOTTED LANDS OF A CREEK INDIAN, AND
WHICH HAVE BEEN CONVEYED TO CREEK INDIAN GRANTEES, SUBJECT TO VALID
RESTRICTIONS AGAINST ALIENATION EXCEPT WITH THE APPROVAL OF THE
SECRETARY OF THE INTERIOR, HELD, UNDER THE ACT OF MAY 19, 1937, IMMUNE
FROM TAX BY OKLAHOMA, WHERE, PRIOR TO THE ASSESSMENT DATE, THE LANDS
HAVE BEEN PROPERLY DESIGNATED BY SUCH GRANTEES AS HOMESTEAD LANDS.  P.
712. 

(A)  THE TAX IMMUNITY GRANTED BY THE ACT OF MAY 19, 1937, DOES NOT
EXTEND ONLY TO LANDS PURCHASED FOR LANDLESS INDIANS.  P. 712. 

(B)  THE TAX EXEMPTION GRANTED BY THE 1937 ACT IS NOT PERSONAL TO THE
INDIAN WHOSE RESTRICTED FUNDS WERE USED TO PURCHASE THE LAND; NOR DOES
IT EXTEND TO THE LAND IN THE HANDS OF THE CREEK INDIAN GRANTEES ONLY
UNTIL 1956.  P. 712. 

(C) IT IS IMMATERIAL THAT THE CREEK INDIAN GRANTEES IN THIS CASE ARE
CITIZENS OF THE UNITED STATES.  P. 718. 

3.  THE ACT OF JUNE 20, 1936, AND THE ACT OF MAY 19, 1937, AS HERE
APPLIED, ARE CONSTITUTIONAL.  P. 715. 

4.  THE GRANT OF CITIZENSHIP IS NOT INCONSISTENT WITH THE STATUS OF
INDIANS AS WARDS WHOSE PROPERTY IS SUBJECT TO THE PLENARY CONTROL OF
THE FEDERAL GOVERNMENT.  P. 718. 

5.  CREEK INDIANS OF THE HALF BLOOD OR MORE, THOUGH THEY BE
UNENROLLED, ARE TRIBAL INDIANS SUBJECT TO FEDERAL CONTROL.  P. 718. 

BOARD OF COUNTY COMMISSIONERS ET AL. V. SEBER ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 317 U.S. 622, TO REVIEW THE AFFIRMANCE IN PART OF A
JUDGMENT, 38 F.SUPP.  731, ALLOWING RECOVERY OF TAXES PAID UPON LANDS
CLAIMED TO BE TAX EXEMPT UNDER FEDERAL STATUTES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS PETITION FOR CERTIORARI PRESENTS THE QUESTIONS WHETHER CERTAIN
LANDS HELD BY RESPONDENT INDIANS, SUBJECT TO RESTRICTIONS AGAINST
ALIENATION AND ENCUMBRANCE WITHOUT THE APPROVAL OF THE SECRETARY OF THE
INTERIOR, WERE EXEMPT FROM OKLAHOMA REAL ESTATE TAXES FOR THE YEAR 1937
BY VIRTUE OF THE ACT OF JUNE 20, 1936, 49 STAT. 1542; FN1  WHETHER A
PORTION OF THOSE LANDS WERE EXEMPT FOR SUBSEQUENT YEARS BY VIRTUE OF
THE ACT OF 1936 AS AMENDED BY THE ACT OF MAY 19, 1937, 50 STAT. 188;
FN2  AND WHETHER THE ACTS OF 1936 AND 1937, SO APPLIED, ARE
CONSTITUTIONAL. 

THE FACTS ARE AGREED.  PRIOR TO 1931, THE SECRETARY OF THE INTERIOR
PURCHASED THREE TRACTS OF LAND, TWO RURAL AND ONE URBAN, IN CREEK
COUNTY, OKLAHOMA, FOR WOSEY JOHN DEERE, AN ENROLLED, FULL-BLOOD MEMBER
OF THE CREEK TRIBE OF INDIANS.  THE PURCHASE PRICE WAS PAID OUT OF
RESTRICTED ROYALTIES FROM AN OIL AND GAS LEASE OF HER RESTRICTED
ALLOTTED LAND.  SHE WAS GIVEN TITLE SUBJECT TO A CONDITION AGAINST
ALIENATION OR ENCUMBRANCE WITHOUT APPROVAL OF THE SECRETARY PRIOR TO
APRIL 26, 1931.  FN3  BEFORE THAT DATE, WITH THE APPROVAL OF THE
SECRETARY, SHE RESERVED A LIFE ESTATE AND CONVEYED THE FEE TO HER
CHILDREN, FULL-BLOOD BUT UN-ENROLLED CREEKS AND RESPONDENTS HERE,
SUBJECT TO A LIKE CONDITION AGAINST ALIENATION OR ENCUMBRANCE WITHOUT
THE APPROVAL OF THE SECRETARY WITH THE EXCEPTION THAT THE RESTRICTION
HAD NO DEFINITE TIME LIMITATION.  ON DECEMBER 10, 1937, WOSEY JOHN
DEERE CONVEYED HER LIFE ESTATE TO RESPONDENTS SO THAT THEY BECAME FULL
OWNERS SUBJECT TO A RESTRICTION AGAINST ALIENATION OR ENCUMBRANCE
WITHOUT THE APPROVAL OF THE SECRETARY.  BOTH CONVEYANCES WERE IN
CONSIDERATION OF LOVE AND AFFECTION.  THEREAFTER, ON DECEMBER 16, 1937,
RESPONDENTS DESIGNATED THE TWO RURAL TRACTS, TOTALLING EIGHTY-SEVEN AND
ONE-HALF ACRES, AS A TAX EXEMPT HOMESTEAD UNDER THE PROVISIONS OF THE
ACT OF MAY 19, 1937, AND THE SECRETARY APPROVED THIS DESIGNATION ON
MARCH 24, 1938. 

BEFORE THE ACT OF JUNE 20, 1936, THE LANDS WERE SUBJECT TO OKLAHOMA
REAL ESTATE TAXES.  FN4 THEREAFTER ALL THREE TRACTS WERE CONTINUED ON
THE TAX ROLLS OF CREEK COUNTY, AND RESPONDENTS, TO AVOID THE
ACCUMULATION OF PENALTIES AND INTEREST AND A SALE OF THE LANDS FOR
TAXES, PAID THE TAXES FOR THE YEARS 1936, 1937, 1938, AND PART OF
1939.  ON JULY 26, 1940, THEY FILED THIS ACTION IN FEDERAL DISTRICT
COURT FOR THE RECOVERY OF THE 1936 AND 1937 TAXES PAID ON ALL THREE
TRACTS, FOR THE RECOVERY OF THE 1938 AND 1939 TAXES PAID ON THE TWO
RURAL TRACTS DESIGNATED AS HOMESTEAD LANDS, AND FOR A DECLARATION THAT
THE HOMESTEAD LANDS WERE TAX EXEMPT.  THE DISTRICT COURT GAVE JUDGMENT
AS PRAYED.  38 F.SUPP.  731.  THE CIRCUIT COURT OF APPEALS AFFIRMED FOR
THE MOST PART BUT REVERSED WITH RESPECT TO THE 1936 TAXES ON THE GROUND
THAT LIABILITY FOR THEM BECAME FIXED ON THE ASSESSMENT DATE, JANUARY 1,
1936, BEFORE THE ENACTMENT OF THE ACT OF JUNE 20, 1936.  INTEREST ON
THE TAXES PAID WAS ALSO DISALLOWED.  130 F.2D 663.  THE IMPORTANCE OF
THE CASE IN THE ADMINISTRATION OF INDIAN AFFAIRS AND ITS IMPACT UPON
STATE FINANCES CAUSED US TO GRANT THE COUNTY'S PETITION FOR
CERTIORARI.  RESPONDENTS HAVE NOT CROSS-PETITIONED FOR REVIEW OF THE
ADVERSE DECISION ON THE 1936 TAXES AND THE ALLOWANCE OF INTEREST, SO IT
IS UNNECESSARY TO CONSIDER THOSE QUESTIONS. 

WE HOLD THAT THE 1936 ACT EXTENDED TAX IMMUNITY TO ALL THREE TRACTS
FOR THE YEAR 1937, THAT THEREAFTER THE 1937 ACT EXEMPTED THE DESIGNATED
HOMESTEAD LANDS, AND THAT BOTH ACTS, SO APPLIED, ARE CONSTITUTIONAL. 

REQUIREMENTS:  (1) "TITLE" TO THE LANDS MUST BE "HELD BY AN INDIAN
SUBJECT TO RESTRICTIONS AGAINST ALIENATION OR ENCUMBRANCE EXCEPT WITH
THE CONSENT OR APPROVAL OF THE SECRETARY OF THE INTERIOR"; AND, (2) THE
LANDS MUST HAVE BEEN "HERETOFORE PURCHASED OUT OF TRUST OR RESTRICTED
FUNDS OF SAID INDIAN."  BOTH REQUIREMENTS ARE MET HERE WITH RESPECT TO
ALL THREE TRACTS.  THESE LANDS WERE PURCHASED FROM THE RESTRICTED
ROYALTIES RECEIVED FROM AN OIL AND GAS LEASE OF THE RESTRICTED ALLOTTED
LANDS OF WOSEY JOHN DEERE, AND, ON THE ASSESSMENT DAY, JANUARY 1, 1937,
FN5  SHE HELD TITLE TO A FREEHOLD LIFE ESTATE IN ALL THE PARCELS,
SUBJECT TO RESTRICTIONS AGAINST ALIENATION AND ENCUMBRANCE WHICH WERE
VALIDLY IMPOSED BY THE SECRETARY OF THE INTERIOR.  FN6 

PETITIONERS ADVANCE TWO ARGUMENTS AGAINST THE APPLICABILITY OF THE
1936 ACT.  FIRST, THEY CONTEND, FROM REMARKS MADE BY THE SPONSOR OF THE
1936 ACT IN THE SENATE,  FN7  THAT THE ACT APPLIED ONLY TO LANDS
PURCHASED FOR LANDLESS INDIANS, AND THUS DID NOT EXTEND TO LANDS
PURCHASED FROM THE RESTRICTED FUNDS OF WOSEY JOHN DEERE, WHO HELD
ALLOTTED LAND.  WE DO NOT READ THOSE REMARKS AS LIMITING THE SCOPE OF
THE 1936 ACT TO LANDLESS INDIANS; THEY DO NOT DEAL IN TERMS OF
EXCLUSIVENESS.  BUT IF THEY ARE TO BE INTERPRETED AS PETITIONERS
CONTEND, WE DO NOT ACCEPT THEM AS DEFINITIVE, BECAUSE THEY ARE OPPOSED
TO THE CLEAR WORDS OF THE ACT, THE REASONS FOR ITS ENACTMENT, FN8  ITS
CONTEMPORARY ADMINISTRATIVE INTERPRETATION,  FN9  AND ITS SUBSEQUENT
CONGRESSIONAL HISTORY.  FN10  SECONDLY, PETITIONERS ASSERT THAT THE
EXEMPTION OF THE 1936 ACT WAS PERSONAL AND EXTENDED ONLY TO LANDS THE
TITLE TO WHICH WAS HELD BY THE INDIAN WHOSE RESTRICTED FUNDS WERE USED
TO PURCHASE THE LANDS.  THIS POSITION FINDS SOME SUPPORT IN THE
LANGUAGE OF THE ACT, REFERRING TO "LANDS THE TITLE TO WHICH IS HELD BY
AN INDIAN  ...  , PURCHASED OUT OF TRUST OR RESTRICTED FUNDS OF SAID
INDIAN," BUT IT IS UNNECESSARY TO DETERMINE WHETHER THE PURPOSE OF
CONGRESS WAS SUCH THAT THE ACT SHOULD BE MORE BROADLY CONSTRUED THAN
ITS TECHNICAL TERMS MIGHT INDICATE.  FOR, EVEN ASSUMING ARGUENDO THAT
PETITIONERS ARE CORRECT IN SAYING THAT THE 1936 ACT AFFORDED ONLY A
PERSONAL EXEMPTION, WOSEY JOHN DEERE, WHOSE RESTRICTED FUNDS PURCHASED
THE THREE TRACTS, HELD A RESTRICTED LIFE ESTATE IN EACH TRACT ON
JANUARY 1, 1937, THE ASSESSMENT DATE.  AS THE LIFE TENANT, SHE WAS
OBLIGATED TO PAY THE TAXES UNDER OKLAHOMA LAW.  60 OKLA STAT. ANN. SEC.
69; HELM V. BELVIN, 107 OKLA. 214, 232 P. 382; RILEY V. COLLIER, 111
OKLA. 130, 238 P. 491; WALDON V. BAKER, 184 OKLA. 492, 495, 88 P.2D
352.  SINCE THE 1936 ACT WAS CONCERNED WITH A TAX EXEMPTION, THE PROPER
TEST OF WHETHER AN INDIAN PURCHASER HAD "TITLE," WITHIN THE MEANING OF
THE ACT, MUST BE WHETHER HE HAD RETAINED SUCH A PROPERTY INTEREST THAT,
BUT FOR THE ACT, HE WOULD BE SUBJECTED TO THE TAX.  HERE WOSEY JOHN
DEERE RETAINED SUCH A TITLE, AND THE THREE TRACTS WERE CLEARLY WITHIN
THE 1936 ACT, EVEN ACCEPTING PETITIONERS' CONSTRUCTION. 

LIKEWISE, THE TWO RURAL PARCELS COMPLY WITH THE DESCRIPTION CONTAINED
IN THE 1937 ACT, WHICH PROVIDES IN PART:  "ALL HOMESTEADS, HERETOFORE
PURCHASED OUT OF THE TRUST OR RESTRICTED FUNDS OF INDIVIDUAL INDIANS,
...  SHALL BE NONTAXABLE UNTIL OTHERWISE DIRECTED BY CONGRESS:
PROVIDED, THAT THE TITLE TO SUCH HOMESTEADS SHALL BE HELD SUBJECT TO
RESTRICTIONS  ...  "  THOSE PARCELS WERE PURCHASED FROM THE RESTRICTED
FUNDS OF AN INDIVIDUAL INDIAN, WOSEY JOHN DEERE; RESPONDENTS HOLD THEM
SUBJECT TO VALID RESTRICTIONS N11; AND THEY WERE PROPERLY DESIGNATED BY
RESPONDENTS AS HOMESTEAD LANDS ON DECEMBER 16, 1937, PRIOR TO THE 1938
ASSESSMENT DATE.  FN12  IN VIEW OF THE LEGISLATIVE HISTORY OF THE 1937
ACT, SUMMARIZED IN NOTE 10, SUPRA, PETITIONERS' ARGUMENT THAT THE 1937
ACT APPLIES ONLY TO LANDS PURCHASED FOR LANDLESS INDIANS MUST BE
REJECTED. 

IT HAS BEEN SUGGESTED THAT THE TAX EXEMPTION GRANTED BY THE 1937 ACT
IS PERSONAL TO THE INDIAN WHOSE RESTRICTED FUNDS WERE USED TO PURCHASE
THE LAND, OR ELSE THAT IT EXTENDS TO THE LAND IN THE HANDS OF
RESTRICTED CREEK INDIAN GRANTEES ONLY UNTIL 1956, CONSONANTLY WITH THE
STATUTES GOVERNING THE TAX STATUS OF RESTRICTED ALLOTTED LANDS OF THE
CREEKS.  FN13  THE ACT DOES NOT SAY, HOWEVER, AND THERE IS NOT A WORD
TO SUGGEST THAT UPON TRANSFER OF THE LANDS TO INDIAN HEIRS OR GRANTEES,
SUBJECT TO RESTRICTIONS, THE EXEMPTION IS EITHER TO TERMINATE OR ELSE
EXTEND ONLY UNTIL 1956.  IF CONGRESS HAD INTENDED EITHER RESULT, IT
COULD EASILY HAVE EXPRESSED THOSE PURPOSES.  IT DID NEITHER, BUT
PROVIDED INSTEAD THAT THE LANDS WHILE RESTRICTED WERE TO REMAIN
NONTAXABLE UNTIL IT DIRECTED OTHERWISE.  IN THE ABSENCE OF EXPLICIT
CONGRESSIONAL DIRECTION, WE DO NOT THINK WE SHOULD HOLD THE EXEMPTION
PERSONAL OR ATTEMPT TO DERIVE AN APPLICABLE PRINCIPLE FROM THE
COMPLICATED AND ADMITTEDLY AMBIGUOUS STATUTES GOVERNING THE TAX STATUS
OF RESTRICTED ALLOTTED CREEK LANDS.  RESPONDENTS RECEIVED THE LAND,
WHICH THEY HAVE DESIGNATED AS A HOMESTEAD, SUBJECT TO RESTRICTIONS OF
INDEFINITE DURATION WHICH THE SECRETARY OF THE INTERIOR HAD AUTHORITY
TO IMPOSE.  FN14  IT SEEMS ONLY FAIR, AS THE CLEAR WORDS OF THE 1937
ACT PROVIDE, THAT THE TAX EXEMPTION SHOULD FOLLOW THE RESTRICTIONS AND
CONTINUE SO LONG AS THEY DO, UNLESS CONGRESS MEANWHILE PROVIDES TO THE
CONTRARY.  EVEN IF THE 1937 ACT WERE AMBIGUOUS, WE THINK THIS
INTERPRETATION SHOULD BE TAKEN.  CF. UNITED STATES V. REILY, 290 U.S.
33, 39. 

IT IS ARGUED, HOWEVER, THAT THE 1936 ACT CREATED ONLY A PERSONAL
EXEMPTION, AND THE 1937 ACT GAVE NO MORE BECAUSE IT WAS AN AMENDMENT TO
THE 1936 ACT INTENDED SOLELY TO LIMIT THE UNNECESSARILY BROAD EXEMPTION
OF THAT ACT.  IT IS TRUE THAT THIS WAS THE AVOWED PURPOSE OF THE 1937
ACT,  FN15  BUT IT DOES NOT FOLLOW THAT THE 1937 ACT GRANTS BUT A
PERSONAL EXEMPTION OR ELSE ALLOWS THE EXEMPTION ONLY UNTIL 1956.  WHILE
THE QUESTION NEED NOT BE DECIDED, IT IS APPROPRIATE TO NOTICE THAT THE
PURPOSE OF THE 1936 ACT MAKES IT AT LEAST DOUBTFUL WHETHER THAT ACT
AFFORDED ONLY A PERSONAL EXEMPTION.  ASSUMING, HOWEVER, THAT IT DID,
THERE IS NOTHING TO INDICATE THAT THE 1937 ACT, CONTRARY TO ITS TERMS,
INCORPORATED THE SAME LIMITATION.  THE APPLICABLE COMMITTEE REPORT
SHEDS NO LIGHT ONE WAY OR ANOTHER.  FN16  THERE IS NO INCONSISTENCY
BETWEEN THE OBJECT OF THE 1937 ACT TO LIMIT THE SWEEPING EXEMPTION OF
ALL LANDS, GRANTED BY THE 1936 ACT, TO HOMESTEAD LANDS, AND A PURPOSE
TO ENLARGE THE EXEMPTION ACCORDED TO THE RELATIVELY SMALL AMOUNT OF
HOMESTEAD LANDS SO THAT IT WOULD APPLY TO RESTRICTED HOMESTEADS PASSING
TO INDIAN HEIRS OR GRANTEES.  THE FACT THAT EXTENSIVE CHANGES IN
LANGUAGE WERE MADE IN THE 1937 ACT IS PERSUASIVE, MOREOVER, THAT A
CHANGE IN SENSE FROM THE PRESUMED PERSONAL EXEMPTION OF THE 1936 ACT
WAS INTENDED.  IF THE ONLY OBJECT OF THE 1937 ACT WAS TO LIMIT THE
APPLICATION OF THE 1936 ACT (WITH ITS ASSUMED PERSONAL EXEMPTION) TO
HOMESTEADS, THAT PURPOSE COULD HAVE BEEN ACCOMPLISHED SIMPLY BY
SUBSTITUTING THE WORD "HOMESTEADS" FOR THE WORD "LANDS."  WE CANNOT
ACCEPT THE VIEW THAT THE SUBSTANTIAL CHANGES IN LANGUAGE WERE ONLY
MATTERS OF STYLE.  FURTHERMORE, IT HAS NOT BEEN SUGGESTED THAT
RESPONDENTS, AS TAKERS FROM THE ORIGINAL PURCHASER, WERE INCOMPETENT TO
DESIGNATE THE LANDS AS A HOMESTEAD UNDER THE 1937 ACT.  IF THEY COULD
DO THAT, AS WE AND APPARENTLY THE SECRETARY OF THE INTERIOR THINK THEY
COULD,  FN17  IT WOULD SEEM TO FOLLOW THAT, HAVING PROPERLY DESIGNATED
THEIR HOMESTEAD UNDER THE ACT, THEY ARE ENTITLED TO THE TAX EXEMPTION
AFFORDED RESTRICTED HOMESTEADS BY THE ACT UNTIL CONGRESS OTHERWISE
DIRECTS. 

THE ACTS OF 1936 AND 1937 ARE CONSTITUTIONAL.  FROM ALMOST THE
BEGINNING, THE EXISTENCE OF FEDERAL POWER TO REGULATE AND PROTECT THE
INDIANS AND THEIR PROPERTY AGAINST INTERFERENCE EVEN BY A STATE HAS
BEEN RECOGNIZED.  CF. WORCESTER V. GEORGIA, 6 PET. 515.  THIS POWER IS
NOT EXPRESSLY GRANTED IN SO MANY WORDS BY THE CONSTITUTION, EXCEPT WITH
RESPECT TO REGULATING COMMERCE WITH THE INDIAN TRIBES, BUT ITS
EXISTENCE CANNOT BE DOUBTED.  IN THE EXERCISE OF THE WAR AND TREATY
POWERS, THE UNITED STATES OVERCAME THE INDIANS AND TOOK POSSESSION OF
THEIR LANDS, SOMETIMES BY FORCE, LEAVING THEM AN UNEDUCATED, HELPLESS
AND DEPENDENT PEOPLE, NEEDING PROTECTION AGAINST THE SELFISHNESS OF
OTHERS AND THEIR OWN IMPROVIDENCE.  OF NECESSITY, THE UNITED STATES
ASSUMED THE DUTY OF FURNISHING THAT PROTECTION, AND WITH IT THE
AUTHORITY TO DO ALL THAT WAS REQUIRED TO PERFORM THAT OBLIGATION AND TO
PREPARE THE INDIANS TO TAKE THEIR PLACE AS INDEPENDENT, QUALIFIED
MEMBERS OF THE MODERN BODY POLITIC.  THIS WAS CLASSICALLY SUMMARIZED IN
UNITED STATES V. KAGAMA, 118 U.S. 375, 384-85: 

"FROM THEIR (THE INDIANS') VERY WEAKNESS AND HELPLESSNESS, SO LARGELY
DUE TO THE COURSE OF DEALING OF THE FEDERAL GOVERNMENT WITH THEM AND
THE TREATIES IN WHICH IT HAS BEEN PROMISED, THERE ARISES THE DUTY OF
PROTECTION, AND WITH IT THE POWER.  THIS HAS ALWAYS BEEN RECOGNIZED BY
THE EXECUTIVE AND BY CONGRESS, AND BY THIS COURT, WHENEVER THE QUESTION
HAS ARISEN. 

     .         .         .         .         .    "THE POWER OF THE
GENERAL GOVERNMENT OVER THESE REMNANTS OF A RACE ONCE POWERFUL, NOW
WEAK AND DIMINISHED IN NUMBERS, IS NECESSARY TO THEIR PROTECTION,  ...
IT MUST EXIST IN THAT GOVERNMENT, BECAUSE IT NEVER HAS EXISTED ANYWHERE
ELSE, BECAUSE THE THEATER OF ITS EXERCISE IS WITHIN THE GEOGRAPHICAL
LIMITS OF THE UNITED STATES, BECAUSE IT HAS NEVER BEEN DENIED, AND
BECAUSE IT ALONE CAN ENFORCE ITS LAWS ON ALL THE TRIBES." 

AFTER 1871, CONGRESS TURNED FROM REGULATING INDIAN AFFAIRS BY
TREATIES TO REGULATION BY AGREEMENT AND LEGISLATION.  THE PLENARY
CHARACTER OF THIS LEGISLATIVE POWER OVER VARIOUS PHASES OF INDIAN
AFFAIRS HAS BEEN RECOGNIZED ON MANY OCCASIONS.  FN18  ONE ASPECT OF
THIS LEGISLATIVE PROGRAM COMMENCED WITH THE GENERAL ALLOTMENT ACT OF
1887, 24 STAT. 388, FOLLOWED BY VARIOUS OTHER ALLOTMENT ACTS DEALING
WITH SPECIFIC TRIBES,  FN19  WHEREBY CONGRESS EMBARKED UPON A POLICY OF
ASSIMILATING THE INDIANS THROUGH DISSOLUTION OF TRIBAL GOVERNMENTS AND
THE COMPULSORY INDIVIDUALIZATION OF INDIAN LAND.  FN20  TO LESSEN THE
DIFFICULTY OF THE PERIOD OF TRANSITION AND TO PROTECT THE ALLOTTEES'
INTEREST IN THEIR LANDS, CONGRESS, BY THE DEVICE OF THE TRUST PATENT OR
A RESTRICTED FEE, DENIED THEM THE POWER TO ALIENATE OR ENCUMBER THEIR
LANDS FOR FIXED PERIODS OF TIME, SUBJECT TO EXTENSION - DENIALS WHICH
WERE SUSTAINED AS PROPER EXERCISES OF CONGRESSIONAL POWER.  TIGER V.
WESTERN INVESTMENT CO., 221 U.S. 286, 310-17; BRADER V. JAMES, 246 U.S.
88, 96; SUNDERLAND V. UNITED STATES, 266 U.S. 226, 233-34.  THE
OBLIGATION AND THE POWER OF THE UNITED STATES TO PROTECT AND PRESERVE
THOSE RESTRICTED ALLOTTED LANDS FOR THE INDIAN OWNERS HAS BEEN
RECOGNIZED, HECKMAN V. UNITED STATES, 224 U.S. 413, AND THEY WERE HELD
IMMUNE FROM STATE TAXATION AS INSTRUMENTALITIES BY WHICH THE UNITED
STATES PROVIDED FOR THE WELFARE AND EDUCATION OF ITS INDIAN WARDS. 
RICKERT V. UNITED STATES, 188 U.S. 432.  FN21  IT HAS ALSO BEEN HELD BY
THE LOWER FEDERAL COURTS THAT PROCEEDS FROM THE SALE OR LEASE OF
RESTRICTED ALLOTTED LANDS ARE IMMUNE FROM STATE TAXATION.  SEE UNITED
STATES V. THURSTON COUNTY, 143 F. 287; NATIONAL BANK OF COMMERCE V.
ANDERSON, 147 F. 87.  WHEN THIS COURT CAME TO CONSIDER THE TAX STATUS
OF LANDS OF THE CHARACTER HERE INVOLVED, THAT IS, LANDS PURCHASED FOR
AN INDIAN FROM THE TRUST OR RESTRICTED PROCEEDS OF HIS RESTRICTED
ALLOTTED LAND, IT SAID THAT, "IN A BROAD SENSE ALL LANDS WHICH THE
INDIANS ARE PERMITTED TO PURCHASE OUT OF THE TAXABLE LANDS OF THE STATE
IN THIS PROCESS OF THEIR EMANCIPATION AND ASSUMPTION OF THE
RESPONSIBILITY OF CITIZENSHIP, WHETHER RESTRICTED OR NOT, MAY BE SAID
TO BE INSTRUMENTALITIES IN THAT PROCESS."  LANDS SO PURCHASED, HOWEVER,
WERE HELD TO FALL WITHIN THAT CLASS OF "INSTRUMENTALITIES WHICH, THOUGH
CONGRESS MAY PROTECT THEM FROM STATE TAXATION, WILL NEVERTHELESS BE
SUBJECT TO THAT TAXATION UNLESS CONGRESS SPEAKS."  SHAW V. GIBSON
ZAHNISER OIL CORP., 276 U.S. 575, 580-81. 

AS A RESULT OF THE SHAW DECISION, CONGRESS SPOKE IN THE ACT OF 1936
AND THE AMENDMENT OF 1937, WHICH WERE INTENDED TO PROTECT THE INDIANS
IN THEIR LAND PURCHASES FROM RESTRICTED FUNDS AND TO KEEP FAITH WITH
THEM BECAUSE OF THE IMPLIED OR EXPRESS REPRESENTATIONS THAT THOSE LANDS
WERE TAX EXEMPT.  FN22  THE CLEAR IMPLICATION OF THE SHAW CASE IS THAT
THOSE ACTS ARE VALID EXERCISES OF CONGRESSIONAL POWER, AND WE SO HOLD. 
THEY ARE APPROPRIATE MEANS BY WHICH THE FEDERAL GOVERNMENT PROTECTS ITS
GUARDIANSHIP AND PREVENTS THE IMPAIRMENT OF A CONSIDERED PROGRAM
UNDERTAKEN IN DISCHARGE OF THE OBLIGATIONS OF THAT GUARDIANSHIP.  THE
FACT THAT THE ACTS WITHDRAW LANDS FROM THE TAX ROLLS AND MAY POSSIBLY
EMBARRASS THE FINANCES OF A STATE OR ONE OF ITS SUBDIVISIONS IS FOR THE
CONSIDERATION OF CONGRESS, NOT THE COURTS.  CF. FEDERAL LAND BANK V.
BISMARCK CO., 314 U.S. 95, 104.  ALSO, IT IS IMMATERIAL THAT
RESPONDENTS ARE CITIZENS, BECAUSE IT IS SETTLED THAT THE GRANT OF
CITIZENSHIP TO THE INDIANS IS NOT INCONSISTENT WITH THEIR STATUS AS
WARDS WHOSE PROPERTY IS SUBJECT TO THE PLENARY CONTROL OF THE FEDERAL
GOVERNMENT.  SEE TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286, 312-17;
BRADER V. JAMES, 246 U.S. 88, 96.  IT RESTS WITH CONGRESS TO DETERMINE
WHEN THE GUARDIANSHIP RELATION SHALL CEASE.  TIGER'S CASE, SUPRA;
UNITED STATES V. RAMSEY, 271 U.S. 467, 469; UNITED STATES V. MCGOWAN,
302 U.S. 535, 538.  THUS FAR, CONGRESS HAS NOT TERMINATED THAT RELATION
WITH RESPECT TO THE CREEK NATION AND ITS MEMBERS.  THAT NATION STILL
EXISTS,  FN23 AND HAS RECENTLY BEEN AUTHORIZED TO RESUME SOME OF ITS
FORMER POWERS.  ACT OF JUNE 26, 1936, 49 STAT. 1967.  AND ALTHOUGH THE
CREEK TRIBAL ROLLS WERE CLOSED ON MARCH 4, 1906,  FN24  CONGRESS HAS
RECOGNIZED THAT UN-ENROLLED CREEKS OF THE HALF BLOOD OR MORE ARE TRIBAL
INDIANS SUBJECT TO FEDERAL CONTROL.  FN25  RESPONDENTS FALL IN THIS
CLASS. 

WE HAVE CONSIDERED THE OTHER CONTENTIONS RAISED BY PETITIONERS AND
FIND THEM WITHOUT MERIT.  THE JUDGMENT BELOW IS CORRECT IN THE MATTERS
APPEALED FROM AND IS THEREFORE AFFIRMED. 

FN1  SECTION 2 OF THIS ACT PROVIDES: 

"ALL LANDS THE TITLE TO WHICH IS NOW HELD BY AN INDIAN SUBJECT TO
RESTRICTIONS AGAINST ALIENATION OR ENCUMBRANCE EXCEPT WITH THE CONSENT
OR APPROVAL OF THE SECRETARY OF THE INTERIOR, HERETOFORE PURCHASED OUT
OF TRUST OR RESTRICTED FUNDS OF SAID INDIAN, ARE HEREBY DECLARED TO BE
INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT AND SHALL BE NONTAXABLE
UNTIL OTHERWISE DIRECTED BY CONGRESS." 

FN2  THE 1937 ACT AMENDED SEC. 2 OF THE 1936 ACT TO READ AS FOLLOWS: 

"ALL HOMESTEADS, HERETOFORE PURCHASED OUT OF THE TRUST OR RESTRICTED
FUNDS OF INDIVIDUAL INDIANS, ARE HEREBY DECLARED TO BE
INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT AND SHALL BE NONTAXABLE
UNTIL OTHERWISE DIRECTED BY CONGRESS:  PROVIDED, THAT THE TITLE TO SUCH
HOMESTEADS SHALL BE HELD SUBJECT TO RESTRICTIONS AGAINST ALIENATION OR
ENCUMBRANCE EXCEPT WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR:
AND PROVIDED FURTHER, THAT THE INDIAN OWNER OR OWNERS SHALL SELECT,
WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR, EITHER THE
AGRICULTURAL AND GRAZING LANDS, NOT EXCEEDING A TOTAL OF ONE HUNDRED
AND SIXTY ACRES, OR THE VILLAGE, TOWN OR CITY PROPERTY, NOT EXCEEDING
IN COST $5,000, TO BE DESIGNATED AS A HOMESTEAD." 

FN3  IN SUNDERLAND V. UNITED STATES, 266 U.S. 226, IT WAS HELD THAT
THE SECRETARY OF THE INTERIOR HAD POWER TO IMPOSE SUCH A RESTRICTION
AGAINST ALIENATION OR ENCUMBRANCE WITH RESPECT TO LANDS PURCHASED FOR
INDIANS OF THE FIVE CIVILIZED TRIBES (OF WHICH THE CREEKS ARE ONE) WITH
THE PROCEEDS FROM SALES OF THEIR RESTRICTED ALLOTTED LANDS.  WE THINK
IT CLEAR THAT HE ALSO HAS AUTHORITY TO IMPOSE SUCH RESTRICTIONS UPON
LANDS PURCHASED WITH RESTRICTED FUNDS FROM LEASES OF RESTRICTED
ALLOTTED LANDS (SEE SHAW V. GIBSON-ZAHNISER OIL CORP., 276 U.S. 575,
AND UNITED STATES V. BROWN, 8 F.2D 564 AT 568), AND TO MAKE THOSE
RESTRICTIONS RUN WITH THE LANDS IN THE HANDS OF INDIAN GRANTEES.  CF.
DRUMMOND V. UNITED STATES, 34 F.2D 755, 758-59; UNITED STATES V.
GOLDFEDER, 112 F.2D 615. 

FN4  SEE SHAW V. GIBSON-ZAHNISER OIL CORP., 276 U.S. 575. 

FN5  UNDER OKLAHOMA LAW, THE TAXABLE STATUS OF PROPERTY IN OKLAHOMA
IS FIXED AS OF THE ASSESSMENT DATE, JANUARY 1, IN EACH YEAR, ALTHOUGH
TAXES ARE LEVIED AS OF JULY 1.  SEE BOARD OF COMMISSIONERS V. CENTRAL
BAPTIST CHURCH, 136 OKLA. 99, 276 P. 726; IN RE SINCLAIR PRAIRIE OIL
CO., 175 OKLA. 289, 53 P.2D 221; IN RE CHAMPLIN REFINING CO., 186 OKLA.
625, 99 P.2D 880.  FOR THE PURPOSES OF THIS CASE, WE ASSUME WITHOUT
DECIDING THAT THE STATUS OF THE PROPERTY ON THE ASSESSMENT DATE IS
DETERMINATIVE. 

FN6  SEE NOTE 3, ANTE. 

FN7  SENATOR THOMAS SAID IN PART:  "FORMERLY THE CONGRESS AUTHORIZED
THE SECRETARY OF THE INTERIOR TO BUY LAND FOR LANDLESS INDIANS.  THE
SECRETARY PROCEEDED TO BUY THE LANDS AND ASSIGNED THE INDIANS TO RESIDE
UPON SUCH LANDS.  THE RECOMMENDATION OR ASSERTION WAS MADE TO THE
INDIANS THAT THE LAND WOULD BE THEIRS AND THEY WOULD HAVE NO TAXES TO
PAY.  ...  IN SOME CASES TAX WARRANTS HAVE BEEN ISSUED AND THE INDIANS
HAVE BEEN THREATENED WITH DISPOSSESSION.  THE DEPARTMENT BELIEVES THAT,
IN ORDER TO KEEP FAITH WITH THE INDIANS, THE TAX WARRANTS AND TAX
ASSESSMENTS SHOULD BE PAID AND THE TITLE TO THE LANDS CLEARED.  THE
BILL AUTHORIZES THE APPROPRIATION OF MONEY FOR THAT PURPOSE. 

"SECTION 2 PROVIDES THAT THE LANDS SO SECURED SHALL HEREAFTER BE NON
TAXABLE."  80 CONG. REC. 9159. 

FN8  THE MERIAM REPORT TO THE SECRETARY OF THE INTERIOR ON THE
PROBLEM OF INDIAN ADMINISTRATION (BROOKINGS INSTITUTE, 1928), PP. 795
98, POINTED OUT THAT ALLOTMENTS WERE OFTEN UNSUITABLE FOR HOMES, THAT
OTHER LANDS HAD TO BE PURCHASED, AND THAT WHILE RESTRICTED ALLOTTED
LANDS AND THE TRUST PROCEEDS THEREOF HAD BEEN HELD IMMUNE FROM STATE
TAXATION, THE TAX STATUS OF PROPERTY PURCHASED WITH TRUST FUNDS FROM
SALE OR LEASE OF ALLOTTED LANDS WAS IN DOUBT.  LEGISLATION CONFERRING
TAX EXEMPTION WAS RECOMMENDED TO PROTECT THE INDIANS AGAINST INABILITY
TO PAY OR THEIR INSUFFICIENT SENSE OF PUBLIC RESPONSIBILITY, AND TO
KEEP FAITH SINCE OFFICIALS OF THE FEDERAL GOVERNMENT HAD EXPRESSLY OR
IMPLIEDLY REPRESENTED THAT LANDS SO PURCHASED WERE TAX EXEMPT.  THE
HOUSE AND SENATE REPORTS SHOW THAT THIS WAS THE PROBLEM AT WHICH THE
1936 ACT WAS AIMED.  H. REP. 2398, S. REP. 2168, 74TH CONG., 2D SESS.
SEE ALSO COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1942), PP. 260-61. 

FN9  THE ACTING ATTORNEY GENERAL AND THE SOLICITOR OF THE DEPARTMENT
OF THE INTERIOR BOTH RULED THAT THE 1936 ACT APPLIED TO LANDS PURCHASED
FROM THE RESTRICTED FUNDS OF INDIVIDUAL OSAGE INDIANS WHO WERE NOT
LANDLESS.  38 OP. A.G. 577; 56 I.D. 48. 

FN10  IN REPORTING A BILL TO REPEAL THE BROAD PROVISION OF SEC. 2 OF
THE 1936 ACT, THE HOUSE COMMITTEE ON INDIAN AFFAIRS SAID:  "IT WILL BE
OBSERVED FROM THE LANGUAGE OF SECTION 2,  ...  THAT IT APPLIES TO ALL
LANDS PURCHASED BY RESTRICTED INDIAN FUNDS, AND THE ATTORNEY GENERAL SO
HELD."  H. REP. 562, 75TH CONG., 1ST SESS.  THE SENATE SUBSTITUTED FOR
THE REPEALER AN AMENDMENT LIMITING SEC. 2 TO HOMESTEAD LANDS, WHICH
BECAME THE 1937 ACT, BUT THE SENATE COMMITTEE REPORT ALSO MAKES IT
CLEAR THAT THE 1936 ACT COVERED ALL RESTRICTED INDIAN LANDS PURCHASED
OUT OF RESTRICTED FUNDS.  S. REP. 332, 75TH CONG., 1ST SESS. 

FN11  SEE NOTE 3, ANTE. 

FN12  THE SECRETARY DID NOT APPROVE THE DESIGNATION UNTIL MARCH 24,
1938, BUT WE THINK THIS APPROVAL RELATED BACK TO THE DATE OF
DESIGNATION. 

FN13  SEE ACT OF JUNE 30, 1902, 32 STAT. 500, 503; ACT OF APRIL 26,
1906, SEC. 19, 34 STAT. 137, 144; ACT OF MAY 27, 1908, SECS. 4, 9, 35
STAT. 312, 313, 315; ACT OF APRIL 12, 1926, 44 STAT. 239; ACT OF MAY
10, 1928, 45 STAT. 495; ACT OF MAY 24, 1928, 45 STAT. 733; ACT OF MARCH
2, 1931, 46 STAT. 1471; ACT OF JUNE 30, 1932, 47 STAT. 474; ACT OF
JANUARY 27, 1933, 47 STAT. 777. 

FN14  SEE NOTE 3, ANTE. 

FN15  SEE H. REP. 562, S. REP. 332, 75TH CONG., 1ST SESS. 

FN16  S. REP. 332, 75TH CONG., 1ST SESS. 

FN17  THE SECRETARY APPROVED RESPONDENTS' DESIGNATION.  SEE NOTE 12,
ANTE. 

FN18  SEE UNITED STATES V. KAGAMA, SUPRA; CHOCTAW NATION V. UNITED
STATES, 119 U.S. 1, 27; STEPHENS V. CHEROKEE NATION, 174 U.S. 445, 486;
LONE WOLF V. HITCHCOCK, 187 U.S. 553, 566-68; TIGER V. WESTERN
INVESTMENT CO., 221 U.S. 286, 310-17; UNITED STATES V. SANDOVAL, 231
U.S. 28, 45-47; BRADER V. JAMES, 246 U.S. 88, 96; SUNDERLAND V. UNITED
STATES, 266 U.S. 226, 233-34; UNITED STATES V. RAMSEY, 271 U.S. 467,
469, 471; UNITED STATES V. MCGOWAN, 302 U.S. 535, 538-39; BOARD OF
COMM'RS V. UNITED STATES, 308 U.S. 343, 349. 

FN19  WOSEY JOHN DEERE RECEIVED HER ALLOTMENT UNDER AN AGREEMENT
NEGOTIATED WITH THE CREEKS BY THE DAWES COMMISSION AND INCORPORATED
INTO THE ACT OF MARCH 1, 1901, 31 STAT. 861, AS AMENDED BY THE
SUPPLEMENTAL AGREEMENT OF JUNE 30, 1902, 32 STAT. 500.  SEE ALSO SEC.
19 OF THE ACT OF APRIL 26, 1906, 34 STAT. 137, 144; ACT OF MAY 27,
1908, 35 STAT. 312; AND ACT OF MAY 10, 1928, 45 STAT. 495. 

FN20  ALLOTMENTS IN SEVERALTY WERE HALTED BY THE WHEELER-HOWARD ACT
OF JUNE 18, 1934, 48 STAT. 984, AND BY THE OKLAHOMA WELFARE ACT OF JUNE
26, 1936, 49 STAT. 1967.  THESE AND OTHER RECENT STATUTES REFLECT A
CHANGE IN POLICY, THE THEORY OF WHICH IS THAT INDIANS CAN BETTER MEET
THE PROBLEMS OF MODERN LIFE THROUGH CORPORATE, GROUP, OR TRIBAL ACTION,
RATHER THAN AS ASSIMILATED INDIVIDUALS. 

FN21  THE LAND INVOLVED IN THE RICKERT CASE WAS A TRUST ALLOTMENT,
RATHER THAN A RESTRICTED FEE.  THE POWER OF CONGRESS OVER BOTH TYPES OF
ALLOTMENTS, HOWEVER, IS THE SAME.  SEE UNITED STATES V. RAMSEY, 271
U.S. 467, 471. 

FN22  SEE H. REP. 2398, S. REP. 2168, 74TH CONG., 2D SESS.  SEE ALSO
THE MERIAM REPORT TO THE SECRETARY OF THE INTERIOR ON THE PROBLEM OF
INDIAN ADMINISTRATION (BROOKINGS INSTITUTE, 1928), PP. 795-98. 

FN23  THE ACT OF MARCH 1, 1901, 31 STAT. 861, AND THE SUPPLEMENTAL
AGREEMENT OF JUNE 30, 1902, 32 STAT. 500, PROVIDED FOR THE DISSOLUTION
OF THE CREEK TRIBE ON MARCH 4, 1906, BUT THIS PROVISION WAS REVOKED BY
THE JOINT RESOLUTION OF MARCH 2, 1906, 34 STAT. 822, AND SEC. 28 OF THE
ACT OF APRIL 26, 1906, 34 STAT. 137, 148.    FN24  SECTION 2 OF THE ACT
OF APRIL 26, 1906, 34 STAT. 137. 

FN25  SEE ACT OF JANUARY 27, 1933, 47 STAT. 777; ACT OF FEB. 11,
1936, 49 STAT. 1135; ACT OF JUNE 26, 1936, 49 STAT. 1967; ACT OF
DECEMBER 24, 1942, C. 813, 56 STAT. 1080. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE RUTLEDGE: 

I CONCUR IN THE RESULT AND ALSO IN THE OPINION EXCEPT AS IT RELATES
TO THE TAXES FOR 1938 AND THEREAFTER, LEVIED AND COLLECTED UNDER THE
1937 ACT.  I AGREE THAT THE EXEMPTION EXTENDED FOR THESE YEARS TO WOSEY
JOHN DEERE'S GRANTEES, BUT FOR DIFFERENT REASONS AND WITH THE
LIMITATION, WHICH I THINK SHOULD BE STATED, THAT UNDER PRESENTLY
EFFECTIVE LEGISLATION THE EXEMPTION EXTENDS ONLY TO 1956. 

AS I UNDERSTAND THE RULING, THE OPINION GROUNDS THE EXEMPTION FOR
GRANTEES SQUARELY ON THE 1937 ACT, WITHOUT REFERENCE TO WHETHER THEY
WERE ALSO EXEMPT UNDER THE 1936 ACT, A QUESTION NOT DECIDED.  WITH THAT
I CANNOT AGREE.  THE LATER STATUTE AMENDED THE EARLIER ONE.  BOTH ITS
TERMS AND ITS LEGISLATIVE HISTORY  FN1  SHOW IT HAD ONLY ONE PURPOSE. 
THAT WAS TO CUT DOWN THE AMOUNT OF LAND EXEMPTED.  "ALL HOMESTEADS"
TOOK THE PLACE OF "ALL LANDS."  THERE WERE OTHER CHANGES IN LANGUAGE,
BUT THEY WERE MATTERS OF STYLE, NOT OF SUBSTANCE.  THERE IS NOT A WORD
IN THE ACT OF 1937 ITSELF, OR IN THE COMMITTEE REPORTS TO CONGRESS, TO
SHOW THAT ANY OTHER CHANGE WAS IN MIND.  I FIND, THEREFORE, NO EVIDENCE
OF PURPOSE TO ENLARGE THE PROTECTED CLASS AT THE SAME TIME THE AMOUNT
OF LAND EXEMPTED WAS BEING REDUCED.  NOR IS MERE ABSENCE OF LANGUAGE
EXPRESSLY LIMITING THE EXEMPTION TO A CLASS DEFINED IN THE ACT A
SUFFICIENT BASIS FOR IMPLYING AN INTENT TO ENLARGE THE PROTECTED
CLASS.  NULLIFYING THE POWER OF A STATE TO TAX LAND WITHIN ITS BORDERS
HELD BY OR FOR PRIVATE INDIVIDUALS IS TOO IMPORTANT AND DELICATE A
MATTER TO HANG ON SUCH AN IMPLICATION.  IN MY OPINION, THEREFORE, THE
SOLE PURPOSE AND EFFECT OF THE 1937 ACT WAS TO REDUCE THE QUANTITY OF
LAND FOR WHICH EXEMPTION COULD BE CLAIMED.  CONSEQUENTLY, IF GRANTEES
WERE WITHIN THE BENEFIT, IT WAS BECAUSE THEY WERE SO BY VIRTUE OF THE
1936 ACT. 

A LITERAL READING OF THAT ACT POSSIBLY WOULD LEAD TO THE CONCLUSION
THAT GRANTEES WERE EXCLUDED AND THE PROTECTION WAS PERSONAL TO THE
INDIAN WITH WHOSE FUNDS THE LANDS WERE PURCHASED.  BUT THE LANGUAGE IS
NOT ABSOLUTELY CONCLUSIVE TO THIS EFFECT, AND, IN MY OPINION, THE
LEGISLATIVE HISTORY FN2  SHOWS THAT THE PURPOSE AGAIN WAS NOT TO
ENLARGE OR RESTRICT THE CLASSES TO WHICH THE BENEFIT APPLIED, BUT
RATHER WAS TO BRING WITHIN THE SCOPE OF PREEXISTING EXEMPTIONS LANDS
NOT COVERED BY THEM.  ANY OTHER VIEW WOULD CREATE AS TO THE LANDS
COVERED BY THE 1936 ACT, WHICH WERE ACQUIRED WITH RESTRICTED FUNDS, A
DIFFERENT AND A PREFERRED EXEMPTION AS COMPARED WITH THAT APPLICABLE TO
ORIGINALLY ALLOTTED LANDS, FROM THE SALE OF WHICH IN LARGE PART THE
FUNDS WERE DERIVED.  NO INTENT CAN BE IMPUTED TO CONGRESS TO GIVE THE
SUBSTITUTED LANDS PREFERENTIAL TREATMENT AS COMPARED WITH ORIGINAL
ALLOTMENTS.  THE LANGUAGE DOES NOT REQUIRE THIS, AND NOTHING IN THE
LEGISLATIVE HISTORY GIVES A BASIS FOR BELIEVING IT WAS INTENDED.  THERE
IS NO SUFFICIENT REASON IN EITHER FOR THINKING THAT CONGRESS INTENDED
TO CREATE NEW CLASSES OF BENEFICIARIES OR NEW KINDS OF EXEMPTIONS,
WHETHER IN DURATION OR OTHERWISE.  THERE WAS A PREEXISTING AND DEFINED
GENERAL POLICY IN BOTH RESPECTS, NO PROBLEM OF EITHER SORT WAS
PRESENTED BY THE SITUATION THE ACT WAS INTENDED TO CURE, AND THE SOLE
PURPOSE, IN MY OPINION, WAS TO MAKE SURE THE PREEXISTING EXEMPTIONS
WOULD EXTEND TO THE LANDS SPECIFIED IN THE ACT.  ACCORDINGLY, WHETHER
GRANTEES WERE EXEMPTED AND, IF SO, FOR HOW LONG IS TO BE DETERMINED NOT
BY IMPLICATION OR CONSTRUCTION FROM THE TERMS OF THE 1936 ACT ALONE,
BUT BY REFERENCE TO THE LAW AS IT EXISTED IN RESPECT OF GRANTEES OF
ORIGINAL ALLOTTEES PRIOR TO 1936. 

THERE IS NO NEED TO GO BACK OF 1928, EXCEPT TO SAY THAT, FOR OUR
PURPOSES, THE EFFECT OF PRIOR LEGISLATION WAS THAT GRANTEES OF ORIGINAL
ALLOTTEES WERE NOT WITHIN THE EXISTING TAX EXEMPTIONS, FN3  WHICH WERE,
FOR THE MOST PART, TO EXPIRE AT THE LATEST IN 1931.  FN4  IN SOME
INSTANCES, RESTRICTIONS EXTENDED TO LANDS HELD BY HEIRS OF ALLOTTEES,
BUT FOR THE LIMITED PERIOD.  FN5  IN 1928, CONGRESS EXTENDED EXISTING
RESTRICTIONS ON SOME LANDS - BOTH ALLOTTED AND INHERITED - TO 1956, BUT
AT THE SAME TIME REMOVED EXISTING RESTRICTIONS ON OTHERS.  45 STAT.
495.  THE EXISTING TAX EXEMPTION WAS CUT DOWN IN SCOPE TO ONE HUNDRED
SIXTY ACRES OF EACH INDIAN'S HOLDING, BUT WAS ALSO EXTENDED MORE
CLEARLY TO COVER THE LAND IN THE HANDS OF "ANY FULL BLOOD INDIAN HEIR
OR DEVISEE," THOUGH NOT BEYOND 1956.  45 STAT. 495, AS AMENDED BY 45
STAT. 733-4. 

IN 1933, PROBABLY BY REASON OF THE DISCOVERY OF OIL ON INDIAN LANDS,
CONSEQUENT SALE OR LEASE OF ORIGINAL ALLOTMENTS UNDER THE DIRECTION OF
THE SECRETARY OF THE INTERIOR, AND NUMEROUS SUITS BY INDIANS CLAIMING
THE PROCEEDS FREE FROM HIS RESTRICTIVE POWER, CONGRESS ENACTED ANOTHER
STATUTE, 47 STAT. 777, WHICH MADE ALL INDIAN FUNDS THEN IN OR LATER
COMING TO THE SECRETARY'S HANDS RESTRICTED.  IT CONTAINED THE FOLLOWING
PROVISO, WHICH IS THE LAST WORD, FOR OUR PURPOSES, ON EXEMPTION OF FIVE
CIVILIZED TRIBE INDIAN LANDS PRIOR TO 1936: 

"PROVIDED, THAT WHERE THE ENTIRE INTEREST IN ANY TRACT OF RESTRICTED
AND TAX-EXEMPT LAND BELONGING TO MEMBERS OF THE FIVE CIVILIZED TRIBES
IS ACQUIRED BY INHERITANCE, DEVISE, GIFT, OR PURCHASE, WITH RESTRICTED
FUNDS, BY OR FOR RESTRICTED INDIANS, SUCH LAND SHALL REMAIN RESTRICTED
AND TAXEXEMPT DURING THE LIFE OF AND AS LONG AS HELD BY SUCH RESTRICTED
INDIANS, BUT NOT LONGER THAN APRIL 26, 1956.  ...  PROVIDED FURTHER,
THAT SUCH RESTRICTED AND TAX-EXEMPT LAND HELD BY ANYONE, ACQUIRED AS
HEREIN PROVIDED, SHALL NOT EXCEED ONE HUNDRED AND SIXTY ACRES." 

IN A NUMBER OF RESPECTS, THE MEANING OF THE PROVISION IS UNCLEAR. 
BUT, WITHOUT ATTEMPT TO CLARIFY THEM, THE GENERAL PURPOSE SEEMS TO HAVE
BEEN TO EXEMPT LANDS BELONGING TO MEMBERS OF THE FIVE CIVILIZED TRIBES
DURING THEIR LIVES, BUT NOT BEYOND 1956 AND NOT EXCEEDING 160 ACRES, IF
"ACQUIRED BY INHERITANCE, DEVISE, GIFT, OR PURCHASE, WITH RESTRICTED
FUNDS, BY OR FOR SUCH RESTRICTED INDIANS."  THE PROVISO IS AWKWARDLY
DRAWN, AND SOME OF THE LANGUAGE COULD BE TAKEN TO LIMIT THE EXEMPTION
TO THE INDIAN WITH WHOSE RESTRICTED FUNDS THE LANDS ARE ACQUIRED.  BUT
OTHER LANGUAGE CONTRADICTS THIS AND THE LEGISLATIVE HISTORY SHOWS IT
WAS CONTEMPLATED THE EXEMPTION WOULD EXTEND TO HEIRS, DEVISEES, DONEES
AND PURCHASERS WITH RESTRICTED FUNDS.  FN6  IN SHORT, AS TO THE LANDS
COVERED, INDIAN HEIRS, DEVISEES, DONEES AND GRANTEES WERE WITHIN THE
PROTECTION.  THAT THE PROVISO COVERS DIRECTLY THE LANDS IN QUESTION IN
THE HANDS OF WOSEY JOHN DEERE'S GRANTEES MAY BE DOUBTED.  FN7  BUT,
WHETHER OR NOT THE STATUTE APPLIES SPECIFICALLY TO THIS CASE, IT SHOWS
THE LATEST PHASE OF CONGRESSIONAL POLICY, PRIOR TO 1936, AS TO THE KIND
OF EXEMPTION GIVEN TO MEMBERS OF THE CREEK NATION AND THE PERSONS
ENTITLED TO ITS BENEFIT. 

IN THIS BACKGROUND, THE 1936 ACT WAS ADOPTED.  IN MY OPINION, IT
INCORPORATED THE PREVIOUSLY EXISTING EXEMPTION, AS IT RELATED TO
DURATION AND GRANTEES, BUT EXTENDED IT TO "ALL LANDS" RATHER THAN
MERELY THE HOMESTEAD.  THE 1937 ACT RETURNED TO THE HOMESTEAD LIMIT,
BUT WITHOUT CHANGE IN OTHER RESPECTS.  IN MY VIEW, THEREFORE, AND FOR
THESE REASONS, THE GRANTEES OF WOSEY JOHN DEERE WERE ENTITLED TO THE
BENEFIT OF THE EXEMPTION, BUT, UNLESS IT IS EXTENDED FURTHER BY
CONGRESS, ONLY TO 1956. 

FN1  SEE H.R. REP. NO. 562, 75TH CONG., 1ST SESS.; S. REP. NO. 332,
75TH CONG., 1ST SESS. 

FN2  SEE H.R. REP. NO. 2398, 74TH CONG., 2D SESS.; S. REP. NO. 2168,
74TH CONG., 2D SESS.  SEE ALSO 80 CONG. REC. 9159 AND MERIAM REPORT TO
THE SECRETARY OF THE INTERIOR ON THE PROBLEM OF INDIAN ADMINISTRATION
(BROOKINGS INSTITUTE, 1928) 795-8. 

FN3  CF. ACT OF JUNE 30, 1902, C. 1323, SEC. 16, 32 STAT. 500, 503;
ACT OF APRIL 26, 1906, C. 1876, SEC. 19, 34 STAT. 137, 144; ACT OF MAY
27, 1908, C. 199, SECS. 4, 9, 35 STAT. 312, 313, 315; ACT OF APRIL 12,
1926, C. 115, 44 STAT. 239. 

FN4  34 STAT. 144; 35 STAT. 315; 44 STAT. 239. 

FN5  SEE 35 STAT. 315; 44 STAT. 239. 

FN6  SEE H.R. REP. NO. 1015, 72D CONG., 1ST SESS.; S. REP. NO. 873,
77TH CONG., 1ST SESS.; SEE ALSO 75 CONG. REC. 8163, 8170. 

FN7  THEY ARE HOMESTEAD LANDS.  THEY WERE BOUGHT WITH HER RESTRICTED
FUNDS.  SHE, IF ANYONE, WAS A "RESTRICTED INDIAN," THOUGH THAT TERM IS
NEW IN THIS ACT AND UNCLEAR.  SHE ACQUIRED THE LANDS BY PURCHASE.  HER
CHILDREN TOOK THEM BY DEED, WHETHER BY GIFT OR BY "PURCHASE" IS NOT
MATERIAL.  THEY, TOO, WERE "RESTRICTED INDIANS," IF SHE WAS.  AT ANY
RATE, THEY WERE FULL BLOOD.  ALL THESE THINGS WOULD FIT THE STATUTE TO
THE PRESENT CASE.  ON THE OTHER HAND, THE TAX EXEMPTION IN THE PROVISO
APPARENTLY EXTENDS ONLY TO NEWLY ACQUIRED LANDS WHICH PRIOR TO THEIR
ACQUISITION WERE TAX EXEMPT AND RESTRICTED.  SEE 75 CONG. REC. 8170. 
NOTHING IN THE RECORD INDICATES THAT THE LANDS HERE INVOLVED WERE
EITHER TAX EXEMPT OR RESTRICTED WHEN WOSEY JOHN DEERE PURCHASED THEM. 
HOWEVER, THE PRECISE SIGNIFICANCE OF THE APPARENT REQUIREMENT THAT THE
LANDS SHALL HAVE BEEN TAX EXEMPT BEFORE THEY WERE ACQUIRED IS OBSCURED
BY THE CONTEXT OF THE PROVISO IN A STATUTE ADDRESSED PRIMARILY TO THE
PROBLEM OF RESTRICTING FUNDS (IN THE HANDS OF THE SECRETARY) OBTAINED
LARGELY FROM THE SALE OF INTERESTS IN RESTRICTED LANDS. 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :












AGUILAR V. STANDARD OIL CO., 318 U.S. 724 


NO. 454.  ARGUED MARCH 2, 3, 1943.  - DECIDED APRIL 19, 1943.  - NO.
454, 130 F.2D 154, REVERSED.  - NO. 582, 130 F.2D 797, AFFIRMED. 


1.  A SHIPOWNER'S LIABILITY FOR MAINTENANCE AND CURE EXTENDS TO A
SEAMAN WHO, DEPARTING ON OR RETURNING FROM SHORE LEAVE (THOUGH WITHOUT
ANY DUTY TO PERFORM FOR THE SHIP WHILE ON LEAVE), IS INJURED WHILE
PROCEEDING, WITHOUT MISCONDUCT, ACROSS A DOCK OR OTHER PROPERTY WHICH
WAS THE ONLY AVAILABLE ROUTE BETWEEN THE VESSEL AND THE PUBLIC
STREETS.  P. 736. 

2.  LIABILITY IN SUCH CASE DOES NOT DEPEND UPON WHETHER THE SHIPOWNER
WAS NEGLIGENT.  P. 736. 

AGUILAR V. STANDARD OIL CO. OF NEW JERSEY.* 

*TOGETHER WITH NO. 582, WATERMAN STEAMSHIP CORP. V. JONES, ON WRIT OF
CERTIORARI, 317 U.S. 621, TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 317 U.S. 621, 622, TO REVIEW, IN NO. 582, THE REVERSAL OF
A JUDGMENT DISMISSING THE COMPLAINT, AND, IN NO. 454, THE AFFIRMANCE OF
A JUDGMENT DISMISSING THE COMPLAINT, IN SUITS BY SEAMEN FOR MAINTENANCE
AND CURE. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THESE CASES IS WHETHER A SHIPOWNER IS
LIABLE FOR WAGES AND MAINTENANCE AND CURE TO A SEAMAN WHO, HAVING LEFT
HIS VESSEL ON AUTHORIZED SHORE LEAVE, IS INJURED WHILE TRAVERSING THE
ONLY AVAILABLE ROUTE BETWEEN THE MOORED SHIP AND A PUBLIC STREET.  THE
INJURY IN NO. 582 OCCURRED WHILE THE SEAMAN WAS DEPARTING FOR HIS
LEAVE.  THAT IN NO. 454 OCCURRED WHILE HE WAS RETURNING. 

THE COMPLAINT IN NO. 582 DISCLOSES THAT THE PLAINTIFF, RESPONDENT
HERE, WAS A MESSMAN ON THE STEAMSHIP BEAUREGARD, OWNED BY DEFENDANT. 
ON JANUARY 16, 1941, THE VESSEL, WHICH APPARENTLY WAS ENGAGED IN THE
COASTWISE TRADE BETWEEN NEW ORLEANS AND EAST COAST AND GULF PORTS, WAS
MOORED TO PIER C, PORT RICHMOND, PHILADELPHIA.  AT ABOUT 6 P.M.
PLAINTIFF LEFT THE SHIP ON SHORE LEAVE.  AS HE WAS PROCEEDING THROUGH
THE PIER TOWARD THE STREET, ALL THE LIGHTS WERE EXTINGUISHED.  IN THE
ENSUING DARKNESS, HE FELL INTO AN OPEN DITCH AT A RAILROAD SIDING. 
THIS CAUSED INJURIES WHICH REQUIRED TREATMENT AND PREVENTED HIM FROM
RESUMING HIS USUAL DUTIES.  THIS ACTION FOLLOWED, FOR MAINTENANCE AND
CURE AND WAGES.  ON DEFENDANT'S MOTION, THE DISTRICT COURT DISMISSED
THE COMPLAINT.  THE GROUND ASSIGNED WAS THAT, AT THE TIME OF HIS
INJURY, PLAINTIFF WAS NOT ASHORE ON THE SHIP'S BUSINESS.  THE THIRD
CIRCUIT COURT OF APPEALS REVERSED AND REMANDED (130 F.2D 797), HOLDING
THAT, ON THE FACTS STATED IN THE COMPLAINT, DEFENDANT WAS LIABLE FOR
MAINTENANCE AND CURE AND WAGES. 

THE STIPULATION OF FACTS IN NO. 454 DISCLOSES THAT ON APRIL 18, 1938,
THE DEFENDANT'S VESSEL, THE STEAMSHIP E.M. CLARK, WAS LYING DOCKED AT
THE PREMISES OF THE MEXICAN PETROLEUM COMPANY, IN CARTERET, NEW JERSEY,
WHICH DEFENDANT NEITHER OWNED, OPERATED, NOR CONTROLLED.  PETITIONER, A
MEMBER OF THE CREW, OBTAINED PERMISSION FROM THE MASTER AND WENT ASHORE
ON HIS OWN PERSONAL BUSINESS.  IN ORDER TO REACH THE VESSEL ON
RETURNING FROM SHORE LEAVE, HE HAD TO PASS THROUGH THE PREMISES OF THE
MEXICAN PETROLEUM COMPANY.  AFTER HE HAD GONE THROUGH THE ENTRANCE GATE
AND WHILE HE WAS WALKING ON THE ROADWAY OF THOSE PREMISES ABOUT A HALF
MILE FROM THE SHIP, HE WAS STRUCK AND INJURED BY A MOTOR VEHICLE WHICH
WAS NEITHER OWNED, OPERATED, NOR CONTROLLED BY THE DEFENDANT. 
PETITIONER BROUGHT THIS ACTION TO RECOVER $10,000, THE EXPENSE OF HIS
MAINTENANCE AND CURE FOR THE INJURIES SO INCURRED.  THE DISTRICT COURT
DISMISSED THE COMPLAINT, AND ON APPEAL THE SECOND CIRCUIT COURT OF
APPEALS AFFIRMED.  130 F.2D 154.  BOTH COURTS ACTED ON THE GROUND THAT
IN GOING ASHORE ON PERSONAL BUSINESS THE PLAINTIFF LEFT THE SERVICE OF
THE SHIP AND THEREFORE NO LIABILITY FOR MAINTENANCE AND CURE ATTACHED. 

THE CASES WERE BROUGHT HERE TO RESOLVE THE CONFLICT THUS PRESENTED ON
AN IMPORTANT QUESTION OF MARITIME LAW. 

ALL ADMIT THE SHIPOWNER IS LIABLE IF THE INJURY OCCURS WHILE THE
SEAMAN IS "IN THE SERVICE OF THE SHIP," AND THE ISSUE IS CAST IN THESE
AMBIGUOUS TERMS, THE PARTIES GIVING DIFFERENT MEANINGS TO THE ANCIENT
PHRASE. 

THE CLAIMANTS SAY IT INCLUDES THE WHOLE PERIOD OF SERVICE COVERED BY
THE SEAMAN'S ARTICLES; AND, IF HE IS INJURED DURING THIS TIME, THE
RIGHT IS MADE OUT, UNLESS IT IS SHOWN BY WAY OF DEFENSE HE HAS
FORFEITED IT BY MISCONDUCT CAUSING THE INJURY.  SINCE THE INJURIES HERE
TOOK PLACE DURING THE PERIOD AND THERE WAS ADMITTEDLY NO MISCONDUCT, IT
IS SAID THE CLAIMS ARE ESTABLISHED.  COROLLARIES OF THIS VIEW ARE THAT
RECOVERY IS NOT CONDITIONED ON SHOWING THE INJURY WAS RECEIVED WHILE
THE SEAMAN WAS AT WORK OR DOING SOME ERRAND FOR THE EMPLOYER, AND THAT
GOING ASHORE WITH LEAVE, OR RETURNING FROM IT, IS PART OF BEING "IN THE
SERVICE OF THE SHIP," WHETHER OR NOT IT WAS TO PERFORM SUCH AN ERRAND. 

THE SHIPOWNERS REGARD THE PHRASE MORE NARROWLY.  IN THEIR VIEW, IT
REQUIRES THE SEAMAN TO BE INJURED, IF ASHORE, WHILE HE IS "ON DUTY" OR
AT WORK, DOING SOME TASK CONNECTED WITH THE VESSEL'S BUSINESS.  GOING
ASHORE SIMPLY FOR DIVERSION AND RELIEF FROM ITS ROUTINE AND DISCIPLINE,
OR FOR ANY MATTER PERSONAL TO THE SEAMAN, TAKES HIM OUT OF THE SERVICE
OF THE SHIP; AND THE DEPARTURE IS MADE THE MOMENT HE STEPS OFF DECK AND
ONTO THE DOCK OR PIER, PERHAPS AS HE DESCENDS THE GANGPLANK OR LADDER. 
CF. THE PRESIDENT COOLIDGE, 23 F.SUPP.  575(D.C.).  LIKEWISE, RETURN IS
NOT MADE UNTIL HE IS ON BOARD AGAIN.  CF. LILLY V. UNITED STATES LINES
CO., 42 F.SUPP.  214(D.C.).  IN THIS VIEW, IT IS OF NO MOMENT WHETHER
THE INJURY RESULTS FROM THE SEAMAN'S FAULT OR MISCONDUCT OR FROM CAUSES
ENTIRELY BEYOND HIS CONTROL. 

IT WILL AID IN DETERMINING THE SCOPE OF THE LIABILITY TO CONSIDER ITS
ORIGIN AND NATURE. 

FROM THE EARLIEST TIMES, MARITIME NATIONS HAVE RECOGNIZED THAT UNIQUE
HAZARDS, EMPHASIZED BY UNUSUAL TENURE AND CONTROL, ATTEND THE WORK OF
SEAMEN.  THE PHYSICAL RISKS CREATED BY NATURAL ELEMENTS, AND THE
LIMITATIONS OF HUMAN ADAPTABILITY TO WORK AT SEA, ENLARGE THE NARROWER
AND MORE STRICTLY OCCUPATIONAL HAZARDS OF SAILING AND OPERATING
VESSELS.  AND THE RESTRICTIONS WHICH ACCOMPANY LIVING ABOARD SHIP FOR
LONG PERIODS AT A TIME COMBINE WITH THE CONSTANT SHUTTLING BETWEEN
UNFAMILIAR PORTS TO DEPRIVE THE SEAMAN OF THE COMFORTS AND
OPPORTUNITIES FOR LEISURE, ESSENTIAL FOR LIVING AND WORKING,  FN1  THAT
ACCOMPANY MOST LAND OCCUPATIONS.  FURTHERMORE, THE SEAMAN'S UNUSUAL
SUBJECTION TO AUTHORITY ADDS THE WEIGHT OF WHAT WOULD BE INVOLUNTARY
SERVITUDE FOR OTHERS TO THESE EXTRAORDINARY HAZARDS AND LIMITATIONS OF
SHIP LIFE. 

ACCORDINGLY, WITH THE COMBINED OBJECT OF ENCOURAGING MARINE COMMERCE
AND ASSURING THE WELL-BEING OF SEAMEN, MARITIME NATIONS UNIFORMLY HAVE
IMPOSED BROAD RESPONSIBILITIES FOR THEIR HEALTH AND SAFETY UPON THE
OWNERS OF SHIPS.  FN2  IN THIS COUNTRY THESE NOTIONS WERE REFLECTED
EARLY, AND HAVE SINCE BEEN EXPANDED, IN LEGISLATION DESIGNED TO SECURE
THE COMFORT AND HEALTH OF SEAMEN ABOARD SHIP,  FN3  HOSPITALIZATION AT
HOME  FN4  AND CARE ABROAD.  FN5  THE STATUTES ARE UNIFORM IN EVINCING
SOLICITUDE THAT THE SEAMAN SHALL HAVE AT HAND THE BAREST ESSENTIALS FOR
EXISTENCE.  THEY DO THIS IN TWO WAYS.  ONE IS BY RECOGNIZING THE
SHIPOWNER'S DUTY TO SUPPLY THEM, THE OTHER BY PROVIDING FOR CARE AT
PUBLIC EXPENSE.  THE FORMER DO NOT CREATE THE DUTY.  THAT EXISTED LONG
BEFORE THE STATUTES WERE ADOPTED.  THEY MERELY RECOGNIZE THE
PREEXISTING OBLIGATION AND PUT SPECIFIC LEGAL SANCTIONS, GENERALLY
CRIMINAL, BEHIND IT.  COMPARE HARDEN V. GORDON, 2 MASON 541, 11 FED.
CAS. NO. 6047(C.C.); THE GEORGE, 1 SUMN.  151, 10 FED. CAS. NO.
5329(C.C.); THE FOREST, 1 WARE 429, 9 FED. CAS. NO. 4936(D.C.).  THE
PROVISIONS FOR PUBLIC ASSISTANCE WERE NOT INTENDED TO RELIEVE THE
SHIPOWNER OF HIS DUTY.  ON THE CONTRARY, THEIR PURPOSE WAS TO MAKE SURE
THE SEAMAN WOULD HAVE CARE, IF THE EMPLOYER SHOULD FAIL TO GIVE IT AND
IN THE RARER CASES TO WHICH HIS OBLIGATION DOES NOT EXTEND.  THE
LEGISLATION THEREFORE GIVES NO GROUND FOR MAKING INFERENCES ADVERSE TO
THE SEAMAN OR RESTRICTIVE OF HIS RIGHTS.  CF. REED V. CANFIELD, 1
SUMN.  195, 20 FED. CAS. NO. 11,641(C.C.).  RATHER IT FURNISHES THE
STRONGEST BASIS FOR REGARDING THEM BROADLY, WHEN AN ISSUE CONCERNING
THEIR SCOPE ARISES, AND PARTICULARLY WHEN IT RELATES TO THE GENERAL
CHARACTER OF RELIEF THE LEGISLATION WAS INTENDED TO SECURE. 

AMONG THE MOST PERVASIVE INCIDENTS OF THE RESPONSIBILITY ANCIENTLY
IMPOSED UPON A SHIPOWNER FOR THE HEALTH AND SECURITY OF SAILORS WAS
LIABILITY FOR THE MAINTENANCE AND CURE OF SEAMEN BECOMING ILL OR
INJURED DURING THE PERIOD OF THEIR SERVICE.  FN6  IN THE UNITED STATES
THIS OBLIGATION HAS BEEN RECOGNIZED CONSISTENTLY AS AN IMPLIED
PROVISION IN CONTRACTS OF MARINE EMPLOYMENT.  FN7 CREATED THUS WITH THE
CONTRACT OF EMPLOYMENT, THE LIABILITY, UNLIKE THAT FOR INDEMNITY OR
THAT LATER CREATED BY THE JONES ACT,  FN8  IN NO SENSE IS PREDICATED ON
THE FAULT OR NEGLIGENCE OF THE SHIPOWNER.  WHETHER BY TRADITIONAL
STANDARDS HE IS OR IS NOT RESPONSIBLE FOR THE INJURY OR SICKNESS, HE IS
LIABLE FOR THE EXPENSE OF CURING IT AS AN INCIDENT OF THE MARINE
EMPLOYER-EMPLOYEE RELATIONSHIP.  FN9  SO BROAD IS THE SHIPOWNER'S
OBLIGATION, THAT NEGLIGENCE OR ACTS SHORT OF CULPABLE MISCONDUCT ON THE
SEAMAN'S PART WILL NOT RELIEVE HIM OF THE RESPONSIBILITY.  PETERSON V.
THE CHANDOS, 4 F. 645(D.C.); SEE ALSO THE J.F. CARD, 43 F. 92(D.C.);
THE BEN FLINT, 1 ABB.  (U.S.)  126, 3 FED. CAS. NO. 1299(D.C.). 
CONCEPTIONS OF CONTRIBUTORY NEGLIGENCE, THE FELLOW-SERVANT DOCTRINE,
AND ASSUMPTION OF RISK HAVE NO PLACE IN THE LIABILITY OR DEFENSE
AGAINST IT.  ONLY SOME WILFUL MISBEHAVIOR OR DELIBERATE ACT OF
INDISCRETION SUFFICES TO DEPRIVE THE SEAMAN OF HIS PROTECTION.  THE BEN
FLINT, SUPRA.  THE TRADITIONAL INSTANCES ARE VENEREAL DISEASE  FN10 AND
INJURIES RECEIVED AS A RESULT OF INTOXICATION,  FN11  THOUGH ON
OCCASION THE LATTER HAS BEEN QUALIFIED IN RECOGNITION OF A CLASSIC
PREDISPOSITION OF SAILORS ASHORE.  FN12  OTHER RECENT CASES, HOWEVER,
DISCLOSE A TENDENCY TO EXPAND THESE TRADITIONAL EXCEPTIONS.  FN13 

CONSISTENTLY WITH THE BASIC PREMISES OF THE LIABILITY, IT WAS EARLY
SUGGESTED THAT THE RISKS WHICH IT COVERED WERE NOT ONLY THOSE ARISING
IN THE ACTUAL PERFORMANCE OF THE SEAMAN'S DUTIES.  REED V. CANFIELD, 1
SUMN.  195, 20 FED. CAS. NO. 11,641(C.C.); RINGGOLD V. CROCKER, ABB. 
ADM.  344, 20 FED. CAS. NO. 11,843(D.C.).  UNLIKE MEN EMPLOYED IN
SERVICE ON LAND, THE SEAMAN, WHEN HE FINISHES HIS DAY'S WORK, IS
NEITHER RELIEVED OF OBLIGATIONS TO HIS EMPLOYER NOR WHOLLY FREE TO
DISPOSE OF HIS LEISURE AS HE SEES FIT.  OF NECESSITY, DURING THE VOYAGE
HE MUST EAT, DRINK, LODGE AND DIVERT HIMSELF WITHIN THE CONFINES OF THE
SHIP.  IN SHORT, DURING THE PERIOD OF HIS TENURE THE VESSEL IS NOT
MERELY HIS PLACE OF EMPLOYMENT; IT IS THE FRAMEWORK OF HIS EXISTENCE. 
FOR THAT REASON, AMONG OTHERS, HIS EMPLOYER'S RESPONSIBILITY FOR
MAINTENANCE AND CURE EXTENDS BEYOND INJURIES SUSTAINED BECAUSE OF, OR
WHILE ENGAGED IN, ACTIVITIES REQUIRED BY HIS EMPLOYMENT.  IN THIS
RESPECT IT IS A BROADER LIABILITY THAN THAT IMPOSED BY MODERN WORKMEN'S
COMPENSATION STATUTES.  FN14  APPROPRIATELY IT COVERS ALL INJURIES AND
AILMENTS INCURRED WITHOUT MISCONDUCT ON THE SEAMAN'S PART AMOUNTING TO
GROUND FOR FORFEITURE, AT LEAST WHILE HE IS ON THE SHIP, "SUBJECT TO
THE CALL OF DUTY AS A SEAMAN, AND EARNING WAGES AS SUCH."  THE BOUKER
NO. 2, 241 F. 831, 833(C.C.A.), CERTIORARI DENIED, 245 U.S. 647; CALMAR
S.S. CO. V. TAYLOR, 303 U.S. 525, 527-8; HOLM V. CITIES SERVICE
TRANSPORTATION CO., 60 F.2D 721(C.C.A.); HIGHLAND V. THE HARRIET C.
KERLIN, 41 F. 222(C.C.); THE QUAKER CITY, 1 F.SUPP.  840(D.C.); COMPARE
NEILSON V. THE LAURA, 2 SAWY.  242, 17 FED. CAS. NO. 10,092(D.C.);
CALLON V. WILLIAMS, 2 LOWELL 1, 4 FED. CAS. NO. 2324(D.C.).  FN15 

WHEN THE SEAMAN'S DUTIES CARRY HIM ASHORE, THE SHIPOWNER'S OBLIGATION
IS NEITHER TERMINATED NOR NARROWED.  FN16  WHEN HE LEAVES THE SHIP
CONTRARY TO ORDERS, HOWEVER, THE OWNER'S DUTY IS ENDED.  FN17  BETWEEN
THESE EXTREMES ARE THE INSTANT CASES, RAISING FOR THE FIRST TIME HERE
THE QUESTION OF THE EXISTENCE AND SCOPE OF THE SHIPOWNER'S DUTY WHEN
THE SEAMAN IS INJURED WHILE ON SHORE LEAVE BUT WITHOUT SPECIFIC CHORE
FOR THE SHIP.  LIABILITY IN THAT CIRCUMSTANCE WAS OBSCURED IN THE FIRST
MARITIME CODES,  FN18  AND ALTHOUGH EARLY SUGGESTED HAS BEEN RECOGNIZED
ONLY IMPLICITLY IN LOWER FEDERAL COURTS.  FN19  VERY RECENTLY IT HAS
BEEN EXPLICITLY DENIED IN SEVERAL DISTRICT COURTS.  FN20 

WE THINK THAT THE PRINCIPLES GOVERNING SHIPBOARD INJURIES APPLY TO
THE FACTS PRESENTED BY THESE CASES.  TO RELIEVE THE SHIPOWNER OF HIS
OBLIGATION IN THE CASE OF INJURIES INCURRED ON SHORE LEAVE WOULD CAST
UPON THE SEAMAN HAZARDS ENCOUNTERED ONLY BY REASON OF THE VOYAGE.  THE
ASSUMPTION IS HARDLY SOUND THAT THE NORMAL USES AND PURPOSES OF SHORE
LEAVE ARE "EXCLUSIVELY PERSONAL" AND HAVE NO RELATION TO THE VESSEL'S
BUSINESS.  MEN CANNOT LIVE FOR LONG COOPED UP ABOARD SHIP, WITHOUT
SUBSTANTIAL IMPAIRMENT OF THEIR EFFICIENCY, IF NOT ALSO SERIOUS DANGER
TO DISCIPLINE.  RELAXATION BEYOND THE CONFINES OF THE SHIP IS NECESSARY
IF THE WORK IS TO GO ON, MORE SO THAT IT MAY MOVE SMOOTHLY.  NO MASTER
WOULD TAKE A CREW TO SEA IF HE COULD NOT GRANT SHORE LEAVE, AND NO CREW
WOULD BE TAKEN IF IT COULD NEVER OBTAIN IT.  EVEN MORE FOR THE SEAMAN
THAN FOR THE LANDSMAN, THEREFORE, "THE SUPERFLUOUS IS THE NECESSARY
...  TO MAKE LIFE LIVABLE"  FN21  AND TO GET WORK DONE.  IN SHORT,
SHORE LEAVE IS AN ELEMENTAL NECESSITY IN THE SAILING OF SHIPS, A PART
OF THE BUSINESS AS OLD AS THE ART, NOT MERELY A PERSONAL DIVERSION. 

THE VOYAGE CREATES NOT ONLY THE NEED FOR RELAXATION ASHORE, BUT THE
NECESSITY THAT IT BE SATISFIED IN DISTANT AND UNFAMILIAR PORTS.  IF, IN
THOSE SURROUNDINGS, THE SEAMAN, WITHOUT DISQUALIFYING MISCONDUCT,
CONTRACTS DISEASE OR INCURS INJURY, IT IS BECAUSE OF THE VOYAGE, THE
SHIPOWNER'S BUSINESS.  THAT BUSINESS HAS SEPARATED HIM FROM HIS USUAL
PLACES OF ASSOCIATION.  BY ADDING THIS SEPARATION TO THE RESTRICTIONS
OF LIVING AS WELL AS WORKING ABOARD, IT FORGES DUAL AND UNIQUE
COMPULSIONS FOR SEEKING RELIEF WHEREVER IT MAY BE FOUND.  IN SUM, IT IS
THE SHIP'S BUSINESS WHICH SUBJECTS THE SEAMAN TO THE RISKS ATTENDING
HOURS OF RELAXATION IN STRANGE SURROUNDINGS.  ACCORDINGLY, IT IS BUT
REASONABLE THAT THE BUSINESS EXTEND THE SAME PROTECTIONS AGAINST INJURY
FROM THEM AS IT GIVES FOR OTHER RISKS OF THE EMPLOYMENT.    IT WAS FROM
CONSIDERATIONS OF EXACTLY THIS CHARACTER THAT THE LIABILITY FOR
MAINTENANCE AND CURE AROSE.  FROM THEM, LIKEWISE, ITS LEGAL INCIDENTS
WERE DERIVED.  THE SHIPOWNER OWES THE PROTECTION REGARDLESS OF WHETHER
HE IS AT FAULT; THE SEAMAN'S FAULT, UNLESS GROSS, CANNOT DEFEAT IT;
UNLIKE THE STATUTORY LIABILITY OF EMPLOYERS ON LAND, IT IS NOT LIMITED
TO STRICTLY OCCUPATIONAL HAZARDS OR TO INJURIES WHICH HAVE AN IMMEDIATE
CAUSAL CONNECTION WITH AN ACT OF LABOR.  AN OBLIGATION WHICH THUS
ORIGINATED AND WAS SHAPED IN RESPONSE TO THE NEEDS OF SEAMEN FOR
PROTECTION FROM THE HAZARDS AND PECULIARITIES OF MARINE EMPLOYMENT
SHOULD NOT BE NARROWED TO EXCLUDE FROM ITS SCOPE CHARACTERISTIC AND
ESSENTIAL ELEMENTS OF THAT WORK.  AND, INDEED, NO DECISION HAS BEEN
FOUND WHICH SO NARROWS THE SHIPOWNER'S PARALLEL OBLIGATION IN THE CASE
OF SICKNESS OR DISEASE.  RATHER, THE IMPLICATIONS OF EXISTING AUTHORITY
POINT THE OTHER WAY.  CF.  THE BOUKER NO. 2, SUPRA.  FN22  THE
CONSIDERATIONS, INCLUDING THOSE OF PUBLIC INTEREST ADVERTED TO BY MR.
JUSTICE STORY, WHICH SUPPORT THE LIABILITY FOR ILLNESS,  FN23  OR FOR
INJURIES RECEIVED ABOARD SHIP, LIKEWISE SUSTAIN IT FOR INJURIES
INCURRED ON SHORE LEAVE, AS WERE THOSE NOW IN ISSUE.  TO EXCLUDE SUCH
INJURIES FROM THE SCOPE OF THE LIABILITY WOULD IGNORE ITS ORIGINS AND
PURPOSES. 

THERE IS STRONG GROUND, THEREFORE, FOR REGARDING THE RIGHT TO
MAINTENANCE AND CURE AS COVERING INJURIES RECEIVED WITHOUT MISCONDUCT
WHILE ON SHORE LEAVE.  CERTAINLY THE NATURE AND FOUNDATIONS OF THE
LIABILITY REQUIRE THAT IT BE NOT NARROWLY CONFINED OR WHITTLED DOWN BY
RESTRICTIVE AND ARTIFICAL DISTINCTIONS DEFEATING ITS BROAD AND
BENEFICIAL PURPOSES.  IF LEEWAY IS TO BE GIVEN IN EITHER DIRECTION, ALL
THE CONSIDERATIONS WHICH BROUGHT THE LIABILITY INTO BEING DICTATE IT
SHOULD BE IN THE SAILOR'S BEHALF.  IN THIS VIEW, THE NATURE AND
PURPOSES OF THE LIABILITY DO NOT PERMIT DISTINCTIONS WHICH ALLOW
RECOVERY WHEN THE SEAMAN BECOMES ILL OR IS INJURED WHILE IDLE ABOARD,
CF. CALMAR S.S. CO. V. TAYLOR, 303 U.S. 525; THE BOUKER NO. 2, 241 F.
831(C.C.A.); HOLM V. CITIES SERVICE TRANSPORTATION CO., 60 F.2D
721(C.C.A.); THE QUAKER CITY, 1 F.SUPP.  840(D.C.), OR WHEN DOING SOME
MINOR ERRAND FOR THE SHIP ASHORE, GOMES V. PEREIRA, 42 F.SUPP. 
328(D.C.), BUT DENY IT WHEN HE FALLS FROM THE LADDER OR GANGPLANK AS HE
LEAVES THE VESSEL ON SHORE LEAVE, CF. THE PRESIDENT COOLIDGE, 23
F.SUPP.  575(D.C.), OR IS RETURNING FROM IT, LILLY V. UNITED STATES
LINES CO., 42 F.SUPP.  214(D.C.).  SUCH REFINEMENTS CUT THE HEART FROM
A PROTECTION TO WHICH THEY ARE WHOLLY FOREIGN IN AIM AND EFFECT.  THE
SAILOR DEPARTING FOR OR RETURNING FROM SHORE LEAVE IS, SENSIBLY, NO
MORE BEYOND THE BROAD PROTECTION OF HIS RIGHT TO MAINTENANCE AND CURE
THAN IS THE SEAMAN QUITTING THE SHIP ON BEING DISCHARGED OR BOARDING IT
ON FIRST REPORTING FOR DUTY.  CF. THE MICHAEL TRACY, 295 F.
680(C.C.A.); THE SCOTLAND, 42 F. 925(D.C.). 

PLAINTIFFS HERE WERE INJURED WHILE TRAVERSING AN AREA BETWEEN THEIR
MOORED SHIPS AND THE PUBLIC STREETS BY AN APPROPRIATE ROUTE.  IT IS
TRUE THAT IN NO. 454 THE AREA CONSISTED OF THE EXTENSIVE PREMISES OF
THE MEXICAN PETROLEUM COMPANY, AT WHOSE DOCK THE SHIP WAS MOORED.  AND
IT IS SAID THE SHIPOWNER SHOULD NOT BE LIABLE BECAUSE HE HAD NO CONTROL
OVER THE PREMISES.  BUT IT WAS THE SHIPOWNER'S BUSINESS WHICH REQUIRED
THE USE OF THOSE FACILITIES.  AND HIS OBLIGATION TO CARE FOR THE
SEAMAN'S INJURIES IS, AS HAS BEEN SHOWN, IN NO SENSE A FUNCTION OF HIS
NEGLIGENCE OR FAULT.  WHILE HIS ABILITY TO CONTROL CONDITIONS ABOARD
SHIP MAY BE TO SOME EXTENT AN ELEMENT IN CREATING HIS RESPONSIBILITY,
IT IS ONLY ONE OF MANY, IS NOT DEFINITIVE, AND BY NO MEANS DETERMINES
THE OCCASIONS ON WHICH HIS OBLIGATION ARISES.  CONSEQUENTLY, THE FACT
THAT THE SHIPOWNER MIGHT NOT BE LIABLE TO THE SEAMAN IN DAMAGES FOR THE
DOCK-OWNER'S NEGLIGENCE, CF. TODAHL V. SUDDEN & CHRISTENSON, 5 F.2D
462(C.C.A.), DOES NOT RELIEVE HIM OF HIS DUTY OF MAINTENANCE AND CURE. 
WE CAN SEE NO SIGNIFICANT DIFFERENCE, THEREFORE, BETWEEN IMPOSING THE
LIABILITY FOR INJURIES RECEIVED IN BOARDING OR QUITTING THE SHIP AND
ENFORCING IT FOR INJURIES INCURRED ON THE DOCK OR OTHER PREMISES WHICH
MUST BE TRAVERSED IN GOING FROM THE VESSEL TO THE PUBLIC STREETS OR
RETURNING TO IT FROM THEM.  THAT MUCH, AT LEAST, IS WITHIN THE
LIABILITY.  HOW FAR IT EXTENDS BEYOND THAT POINT WE NEED NOT NOW
DETERMINE.  AND, IN VIEW OF THE GROUND ON WHICH WE REST THE DECISION,
IT IS NOT NECESSARY TO CONSIDER THE EFFECTS OF THE SHIPOWNERS'
LIABILITY CONVENTION OF 1936,  FN24  OTHER THAN TO STATE THAT IT IN NO
WAY ALTERS THE CONCLUSION HERE REACHED. 

THE JUDGMENT IN NO. 582 IS AFFIRMED; THAT IN NO. 454 IS REVERSED AND
REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  NO. 582 AFFIRMED.  NO. 454 REVERSED. 

FN1  CF. HOLMES, J., DISSENTING IN TYSON & BROTHER V. BANTON, 273
U.S. 418, 447. 

FN2  AS MR. JUSTICE STORY, THEN ON CIRCUIT, OBSERVED IN HARDEN V.
GORDON, 2 MASON 541, 11 FED. CAS. NO. 6047(C.C.), AT 483, "SEAMEN ARE
BY THE PECULIARITY OF THEIR LIVES LIABLE TO SUDDEN SICKNESS FROM CHANGE
OF CLIMATE, EXPOSURE TO PERILS, AND EXHAUSTING LABOUR.  THEY ARE
GENERALLY POOR AND FRIENDLESS, AND ACQUIRE HABITS OF GROSS INDULGENCE,
CARELESSNESS, AND IMPROVIDENCE.  IF SOME PROVISION BE NOT MADE FOR THEM
IN SICKNESS AT THE EXPENSE OF THE SHIP, THEY MUST OFTEN IN FOREIGN
PORTS SUFFER THE ACCUMULATED EVILS OF DISEASE, AND POVERTY, AND
SOMETIMES PERISH FROM THE WANT OF SUITABLE NOURISHMENT.  ...  IF THESE
EXPENSES ARE A CHARGE UPON THE SHIP, THE INTEREST OF THE OWNER WILL BE
IMMEDIATELY CONNECTED WITH THAT OF THE SEAMEN.  THE MASTER WILL WATCH
OVER THEIR HEALTH WITH VIGILANCE AND FIDELITY.  HE WILL TAKE THE BEST
METHODS, AS WELL TO PREVENT DISEASES, AS TO ENSURE A SPEEDY RECOVERY
FROM THEM.  HE WILL NEVER BE TEMPTED TO ABANDON THE SICK TO THEIR
FORLORN FATE; BUT HIS DUTY, COMBINING WITH THE INTEREST OF HIS OWNER,
WILL LEAD HIM TO SUCCOR THEIR DISTRESS, AND SHED A CHEERING KINDNESS
OVER THE ANXIOUS HOURS OF SUFFERING AND DESPONDENCY.  BEYOND THIS, IS
THE GREAT PUBLIC POLICY OF PRESERVING THIS IMPORTANT CLASS OF CITIZENS
FOR THE COMMERCIAL SERVICE AND MARITIME DEFENCE OF THE NATION.  EVERY
ACT OF LEGISLATION WHICH SECURES THEIR HEALTHS, INCREASES THEIR
COMFORTS, AND ADMINISTERS TO THEIR INFIRMITIES, BINDS THEM MORE
STRONGLY TO THEIR COUNTRY; AND THE PARENTAL LAW, WHICH RELIEVES THEM IN
SICKNESS BY FASTENING THEIR INTERESTS TO THE SHIP, IS AS WISE IN
POLICY, AS IT IS JUST IN OBLIGATION.  EVEN THE MERCHANT HIMSELF DERIVES
AN ULTIMATE BENEFIT FROM WHAT MAY SEEM AT FIRST AN ONEROUS CHARGE.  IT
ENCOURAGES SEAMEN TO ENGAGE IN PERILOUS VOYAGES WITH MORE PROMPTITUDE,
AND AT LOWER WAGES.  IT DIMINISHES THE TEMPTATION TO PLUNDERAGE UPON
THE APPROACH OF SICKNESS; AND URGES THE SEAMEN TO ENCOUNTER HAZARDS IN
THE SHIP'S SERVICE, FROM WHICH THEY MIGHT OTHERWISE BE DISPOSED TO
WITHDRAW." 

FN3  E.G., ACT OF JULY 20, 1790, C. 29, SEC. 8, 1 STAT. 134; ACT OF
JUNE 7, 1872, C. 322, SEC. 41, 17 STAT. 270; 46 U.S.C. SECS. 666, 667,
REQUIRING THAT SHIPS CARRY A MINIMUM SUPPLY OF MEDICINES AND
ANTISCORBUTICS.  ACT OF JULY 20, 1790, C. 29, SEC. 9, 1 STAT. 135; ACT
OF JUNE 7, 1872, C. 322, SEC. 36, 17 STAT. 269; ACT OF DEC. 21, 1898,
C. 28, SEC. 12, 30 STAT. 758; R.S. 4565; 46 U.S.C. SECS. 661, 662,
REQUIRING THAT SHIPS CARRY SUFFICIENT AND ADEQUATE STORES AND WATER FOR
THE CREW.  SEE ALSO 17 STAT. 277, 46 U.S.C. SEC. 713.  ACT OF JUNE 7,
1872, C. 322, SEC. 42, 17 STAT. 270, R.S. 4572; ACT OF JUNE 26, 1884,
C. 121, SEC. 11, 23 STAT. 56; ACT OF DEC. 21, 1898, C. 28, SEC. 15, 30
STAT. 759; 46 U.S.C. SECS. 669, 670, PROVIDING THAT CERTAIN BASIC
CLOTHES AND HEATING FACILITIES BE FURNISHED BY THE SHIPOWNER; 46 U.S.C.
SECS. 672-672(C), 673, PRESCRIBING QUALIFICATIONS AND QUOTAS FOR CREWS,
AND WATCH DIVISIONS. 

FN4  ACT OF JULY 16, 1798, C. 77, 1 STAT. 605; ACT OF MARCH 2, 1799,
C. 36, 1 STAT. 729; 2 STAT. 192; R.S. 4808-13; 24 U.S.C. SECS. 1, 6, 8,
11, 193. 

FN5  ACT OF FEB. 28, 1803, C. 9, SEC. 4, 2 STAT. 204; 2 STAT. 651;
R.S. 4577; 46 U.S.C. SEC. 678, REQUIRING CONSULS IN THE CASE OF SICK
AND DESTITUTE SEAMEN ABROAD TO PROVIDE FOR THEIR SUBSISTENCE AND RETURN
PASSAGE TO THE UNITED STATES. 

FN6  SEE, E.G., LAWS OF OLERON, ARTICLES VI, VII; LAWS OF WISBUY,
ARTICLES XVIII, XIX; LAWS OF THE HANSE TOWNS, ARTICLES XXXIX, XLV;
MARINE ORDINANCES OF LOUIS XIV, OF MARINE CONTRACTS, TITLE FOURTH,
ARTICLES XI, XII, COMPILED IN 30 FED. CAS. 1171-1216; CF. HARDEN V.
GORDON, SUPRA. 

THE LAWS OF OLERON ARE TYPICAL OF THE PROVISION FOR INJURIES:  "IF
ANY OF THE MARINERS HIRED BY THE MASTER OF ANY VESSEL, GO OUT OF THE
SHIP WITHOUT HIS LEAVE, AND GET THEMSELVES DRUNK, AND THEREBY THERE
HAPPENS CONTEMPT TO THEIR MASTER, DEBATES, OR FIGHTING AND QUARRELLING
AMONG THEMSELVES, WHEREBY SOME HAPPEN TO BE WOUNDED:  IN THIS CASE THE
MASTER SHALL NOT BE OBLIGED TO GET THEM CURED, OR IN ANY THING TO
PROVIDE FOR THEM, BUT MAY TURN THEM AND THEIR ACCOMPLICES OUT OF THE
SHIP; ...  BUT IF BY THE MASTER'S ORDERS AND COMMANDS ANY OF THE SHIP'S
COMPANY BE IN THE SERVICE OF THE SHIP, AND THEREBY HAPPEN TO BE WOUNDED
OR OTHERWISE HURT, IN THAT CASE THEY SHALL BE CURED AND PROVIDED FOR AT
THE COSTS AND CHARGES OF THE SAID SHIP."  ARTICLE VI. 

FN7  HARDEN V. GORDON, 2 MASON 541, 11 FED. CAS. NO. 6047(C.C.); THE
ATLANTIC, ABB.  ADM.  451, 2 FED. CAS. 620(D.C.); CORTES V. BALTIMORE
INSULAR LINE, 287 U.S. 367, 371. 

FN8  CF. THE OSCEOLA, 189 U.S. 158; PACIFIC S.S. CO. V. PETERSON, 278
U.S. 130; O'DONNELL V. GREAT LAKES DREDGING CO., ANTE, P. 36; BROWN V.
THE BRADISH JOHNSON, 1 WOODS 301, 4 FED. CAS. NO. 1992(C.C.); THE A.
HEATON, 43 F. 592(C.C.); THE MARS, 149 F. 729(C.C.A.). 

FN9  THE CITY OF ALEXANDRIA, 17 F. 390(D.C.); THE A. HEATON, 43 F.
592(C.C.); THE WENSLEYDALE, 41 F. 829(D.C.); SORENSON V. ALASKA S.S.
CO., 247 F. 294(C.C.A.); PETERSON V. THE CHANDOS, 4 F. 645(D.C.); CF.
SEELY V. CITY OF NEW YORK, 24 F.2D 412(C.C.A.); CF. REED V. CANFIELD, 1
SUMN.  195, 20 FED. CAS. NO. 11,641(C.C.). 

FN10  PIERCE V. PATTON, GILP.  435, 19 FED. CAS. NO. 11,145(D.C.);
THE ALECTOR, 263 F. 1007(D.C.); CHANDLER V. THE ANNIE BUCKMAN, 21 BETTS
112, 5 FED. CAS. NO. 2591A (D.C.); ZAMBRANO V. MOORE-MCCORMACK LINES,
131 F.2D 537(C.C.A.); WYTHEVILLE, 1936 A.M.C. 1281(D.C.) 

FN11  BARLOW V. PAN ATLANTIC S.S. CORP., 101 F.2D 697(C.C.A.); THE
BERWINDGLEN, 88 F.2D 125(C.C.A.); LORTIE V. AMERICAN-HAWAIIAN S.S. CO.,
78 F.2D 819(C.C.A.); OLIVER V. CALMAR S.S. CO., 33 F.SUPP.  356(D.C.). 

FN12  THE QUAKER CITY, 1 F.SUPP.  840(D.C.). 

FN13  CF. TEXT AND NOTE 15 INFRA. 

FN14  COMPARE YUKES V. GLOBE S.S. CORP., 107 F.2D 888(C.C.A.); BUT
CF. STATES S.S. CO. V. BERGLANN, 41 F.2D 456(C.C.A.), CERTIORARI
DENIED, 282 U.S. 868; HOLM V. CITIES SERVICE TRANSPORTATION CO., 60
F.2D 721(C.C.A.). 

FN15  THE RECENT TENDENCY TO CONFINE THE SCOPE OF THE OBLIGATION TO
THOSE SHIPBOARD INJURIES WHICH ARE CAUSED BY THE REQUIREMENTS OF THE
SEAMAN'S DUTIES (MEYER V. DOLLAR S.S. LINES, 49 F.2D 1002(C.C.A.); CF.
BROCK V. STANDARD OIL CO., 33 F.SUPP.  353(D.C.))  IS CONSONANT NEITHER
WITH THE LIBERALITY WHICH COURTS OF ADMIRALTY TRADITIONALLY HAVE
DISPLAYED TOWARD SEAMEN, WHO ARE THEIR WARDS, NOR WITH THE DICTATES OF
SOUND MARITIME POLICY.  CALMAR S.S. CO. V. TAYLOR, SUPRA, AT 529. 

FN16  SEE, E.G., LAWS OF OLERON, ART. VI, VII; LAWS OF WISBUY, ART.
XVIII, XIX; LAWS OF HANSE TOWNS, ART. XXXIX, XLV; SEE ALSO THE
MONTEZUMA, 19 F.2D 355(C.C.A.); GOMES V. PEREIRA, 42 F.SUPP. 
328(D.C.). 

FN17  SOUND REASONS OF DISCIPLINE LONG HAVE IMPELLED THIS RULE.  CF.,
E.G., LAWS OF OLERON, ART. VII; MARINE ORDINANCES OF LOUIS XIV, SUPRA;
LAWS OF WISBUY, SUPRA; AND COMPARE PIERCE V. PATTON, SUPRA, NOTE 10. 

FN18  THUS, WHILE THE LAWS OF OLERON AND THE MARINE ORDINANCES OF
LOUIS XIV, SUPRA, RELIEVE FROM LIABILITY FOR INJURIES INCURRED WHILE ON
SHORE WITHOUT LEAVE, THEY SAY NOTHING ON THE QUESTION HERE INVOLVED. 
SIMILARLY, THE LAWS OF WISBUY, SUPRA, ARE AMBIGUOUS ON THIS POINT.  THE
LAWS OF THE HANSE TOWNS SUGGEST THAT ANY INJURIES RECEIVED OTHERWISE
THAN IN THE SHIP'S SERVICE ARE NOT WITHIN THE RIGHT TO MAINTENANCE AND
CURE. 

FN19  E.G., REED V. CANFIELD, SUPRA, NOTE 9; THE BERWINDGLEN, SUPRA,
NOTE 11; CF.  THE J. M. DANZIGER, 1938 A.M.C. 685(D.C.). 

FN20  SMITH V. AMERICAN SOUTH AFRICAN LINE, 37 F.SUPP.  262(D.C.);
WAHLGREN V. STANDARD OIL CO., 42 F.SUPP.  992(D.C.); COLLINS V. DOLLAR
STEAMSHIP LINES, 23 F.SUPP.  395(D.C.). 

FN21  HOLMES, J., DISSENTING IN TYSON & BROTHER V. BANTON, 273 U.S.
418, 447. 

FN22  SEE ALSO HOLMES V. HUTCHINSON, GILP.  447, 12 FED. CAS. NO.
6639(D.C.); THE FOREST, 1 WARE 429, 9 FED. CAS. NO. 4936(D.C.); THE
NIMROD, 1 WARE 1, 18 FED. CAS. NO. 10,267(D.C.); AND SEE CASES CITED
SUPRA, NOTE 10. 

FN23  AT THE ARGUMENT, IT WAS SUGGESTED THAT A REASON WHICH MIGHT
SUSTAIN THE IMPOSITION OF LIABILITY FOR SICKNESS INNOCENTLY CONTRACTED
ON SHORE LEAVE, BUT NOT FOR INJURIES SO INCURRED, WOULD BE THE
DIFFICULTY OF PROVING ORIGIN ASHORE.  THE DIFFICULTY UNDOUBTEDLY WOULD
EXIST IN SOME CASES, BUT HARDLY IN ALL.  NO AUTHORITY HAS BEEN FOUND
WHICH SUGGESTS THIS EXPLANATION.  RATHER, CASES OF ILLNESS, WHICH ARE
WITHIN THE REASON AND POLICY OF THE LIABILITY, ARE INDISTINGUISHABLE
FROM CASES OF INJURY RECEIVED WITHOUT MISCONDUCT.  THE RISK OF
INCIDENCE IS NOT LESS IN THE ONE CASE THAN IN THE OTHER.  THE AFFLICTED
SEAMAN IS MADE AS HELPLESS AND DEPENDENT BY INJURY AS BY ILLNESS.  HIS
RESOURCES FOR MEETING THE CATASTROPHE AND HIS EMPLOYER'S BURDEN ARE NOT
GREATER BECAUSE HE IS HURT RATHER THAN ILL.    FN24  BY PRESIDENTIAL
PROCLAMATION THE CONVENTION BECAME EFFECTIVE FOR THE UNITED STATES AND
ITS CITIZENS ON OCTOBER 29, 1939(54 STAT. 1693).  ARTICLE 2 PROVIDES: 
"1.  THE SHIPOWNER SHALL BE LIABLE IN RESPECT OF - 

(A)  SICKNESS AND INJURY OCCURRING BETWEEN THE DATE SPECIFIED IN THE
ARTICLES OF AGREEMENT FOR REPORTING FOR DUTY AND THE TERMINATION OF THE
ENGAGEMENT; 

(B)  DEATH RESULTING FROM SUCH SICKNESS OR INJURY. 

"2.  PROVIDED THAT NATIONAL LAWS OR REGULATIONS MAY MAKE EXCEPTIONS
IN RESPECT OF: 

(A)  INJURY INCURRED OTHERWISE THAN IN THE SERVICE OF THE SHIP; 

(B)  INJURY OR SICKNESS DUE TO THE WILFUL ACT, DEFAULT OR
MISBEHAVIOUR OF THE SICK, INJURED OR DECEASED PERSON; 

(C)  SICKNESS OR INFIRMITY INTENTIONALLY CONCEALED WHEN THE
ENGAGEMENT IS ENTERED INTO. 

"3.  NATIONAL LAWS OR REGULATIONS MAY PROVIDE THAT THE SHIPOWNER
SHALL NOT BE LIABLE IN RESPECT OF SICKNESS, OR DEATH DIRECTLY
ATTRIBUTABLE TO SICKNESS, IF AT THE TIME OF THE ENGAGEMENT THE PERSON
EMPLOYED REFUSED TO BE MEDICALLY EXAMINED." 

RELEVANT MATERIAL ON THE SCOPE AND EFFECT OF THE CONVENTION MAY BE
FOUND IN H.R. REP. NO. 1328, 76TH CONG., 1ST SESS., CONTAINING THE
INTERPRETATION BY THE SECRETARY OF STATE; RECORD OF PROCEEDINGS,
INTERNATIONAL LABOR CONFERENCE, 21ST AND 22D SESSIONS, GENEVA, 1936,
249-51; INTERNATIONAL LABOR CONFERENCE, GENEVA, 1929, THE PROTECTION OF
SEAMEN IN CASE OF SICKNESS, 1ST DISCUSSION, 28-46; INTERNATIONAL LABOR
CONFERENCE, GENEVA, 1931, THE PROTECTION OF SEAMEN IN CASE OF SICKNESS,
2D DISCUSSION, 29-43, 161-2.  SEE ALSO H.R. 6881, 76TH CONG., 1ST
SESS.; 84 CONG. REC. 10540; HEARINGS BEFORE COMMITTEE ON MERCHANT
MARINE AND FISHERIES, HOUSE OF REPRESENTATIVES, ON H.R. 6881, 76TH
CONG., 1ST SESS., PASSIM; HEARINGS BEFORE SENATE COMMITTEE ON COMMERCE
ON H.R. 6881, 76TH CONG., 3D SESS., PASSIM. 

MR. JUSTICE ROBERTS DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

THE CHIEF JUSTICE THINKS THAT THE JUDGMENT IN NO. 454, AGUILAR V.
STANDARD OIL CO., SHOULD BE AFFIRMED FOR THE REASONS STATED IN THE
OPINION OF THE CIRCUIT COURT OF APPEALS BELOW, 130 F.2D 154.  IN NO.
582, WATERMAN STEAMSHIP CORP. V. JONES, HE CONCURS IN THE RESULT ON THE
GROUND THAT THE RECOVERY WAS AUTHORIZED BY THE SHIPOWNERS' LIABILITY
CONVENTION, 54 STAT. 1695, WHICH BECAME EFFECTIVE BEFORE THE DATE OF
RESPONDENT'S INJURY.  HE IS OF OPINION THAT ARTICLE 2, CLAUSE 1 OF THE
TREATY AUTHORIZING THE RECOVERY IS SELF-EXECUTING, AND THAT THE
EXCEPTIONS PERMITTED BY CLAUSE 2 ARE NOT OPERATIVE IN THE ABSENCE OF
CONGRESSIONAL LEGISLATION GIVING THEM EFFECT.  (SEE LETTER OF SECRETARY
OF STATE TO THE PRESIDENT, DATED JUNE 12, 1939, QUOTED IN H.R. REP. NO.
1328, 76TH CONG., 1ST SESS., PP. 5-7.) 
..END :




ILLINOIS COMM'N V. THOMSON, 318 U.S. 675 


NO. 178.  ARGUED JANUARY 12, 1943.  - DECIDED APRIL 12, 1943.  -
REVERSED. 


1.  THE ORDER OF JANUARY 21, 1942, IN A PROCEEDING KNOWN AS EX PARTE
NO. 148, BY WHICH THE INTERSTATE COMMERCE COMMISSION AUTHORIZED THE
RAILROADS, INCLUDING THE CHICAGO & NORTH WESTERN, TO INCREASE PASSENGER
FARES BY 10%, WAS NOT INTENDED TO APPLY TO INTRASTATE COMMUTATION FARES
ON THAT RAILWAY IN ILLINOIS.  P. 684. 

2.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DIRECTING AN
INCREASE OF RAILROAD FARES SHOULD NOT BE HELD TO APPLY TO INTRASTATE
FARES IN THE PRESENCE OF A SERIOUS DOUBT THAT IT WAS SO INTENDED.  P.
685. 

3.  IN THE ABSENCE OF CIRCUMSTANCES OF PECULIAR URGENCY, A RAILROAD,
ASSERTING THAT PASSENGER FARES FIXED BY STATE AUTHORITY ARE
CONFISCATORY, SHOULD EXHAUST THE ADMINISTRATIVE REMEDY AFFORDED BY THE
STATE LAW BEFORE SEEKING AN INJUNCTION IN A FEDERAL COURT.  P. 686. 

ILLINOIS COMMERCE COMMISSION ET AL. V. THOMSON, TRUSTEE. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES, AWARDING
TO THE TRUSTEE IN REORGANIZATION OF THE CHICAGO & NORTH WESTERN RAILWAY
AN INJUNCTION PERMANENTLY RESTRAINING THE ILLINOIS COMMERCE COMMISSION
AND STATE ENFORCEMENT OFFICIALS FROM TAKING ANY STEPS TO PREVENT A 10%
INCREASE OF INTRASTATE COMMUTATION PASSENGER FARES ON THAT RAILWAY. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS CASE, WHICH COMES HERE BY DIRECT APPEAL UNDER SEC. 266 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 380, INVOLVES THE MEANING OF AN ORDER OF
THE INTERSTATE COMMERCE COMMISSION AND ITS APPLICATION TO THE ILLINOIS
INTRASTATE COMMUTATION PASSENGER FARES OF THE CHICAGO & NORTH WESTERN
RAILWAY.  BY INTERLOCUTORY AND FINALLY BY PERMANENT INJUNCTION, THE
DISTRICT COURT BELOW OF THREE JUDGES HAS ENJOINED APPELLANTS, THE
ILLINOIS COMMERCE COMMISSION AND NAMED LAW ENFORCEMENT OFFICERS OF THE
STATE, FROM TAKING ANY STEPS TO PREVENT A 10% INCREASE IN SUCH FARES BY
APPELLEE, TRUSTEE OF THE CHICAGO & NORTH WESTERN RAILWAY COMPANY IN
REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY ACT.  THE 10% INCREASE,
IF EFFECTIVE, WOULD BRING THE FARES IN SOME INSTANCES ABOVE THE MAXIMUM
OF TWO CENTS PER MILE IMPOSED BY STATE STATUTE.  ILLINOIS REVISED
STATUTES, 1941, C. 114, SECS. 154-56. 

THE BILL OF COMPLAINT ALLEGES, AND THE DISTRICT COURT FOUND,
SUBSTANTIALLY AS FOLLOWS:  UNTIL MARCH 7, 1942, APPELLEE AND HIS
PREDECESSOR IN INTEREST, THE CHICAGO & NORTH WESTERN RAILWAY COMPANY,
HAD COLLECTED COMMUTATION FARES FOR THE INTRASTATE TRANSPORTATION OF
PASSENGERS IN ILLINOIS, AS REQUIRED BY A REPORT AND ORDER OF THE
INTERSTATE COMMERCE COMMISSION ENTERED OCTOBER 6, 1925, IN A PROCEEDING
UNDER SEC. 13 OF THE INTERSTATE COMMERCE ACT (NOW 49 U.S.C. SEC. 13). 
THE PURPOSE AND EFFECT OF THAT ORDER WAS TO REQUIRE THE CHICAGO & NORTH
WESTERN TO INCREASE ITS INTRASTATE COMMUTATION FARES TO SUBSTANTIALLY
THE SAME LEVEL AS THE FARES THEN IN FORCE FOR INTERSTATE PASSENGER
TRAFFIC, WHICH HAD PREVIOUSLY BEEN INCREASED BY ORDER OF THE
COMMISSION, AND THUS TO REMOVE UNDUE PREFERENCE AND PREJUDICE AND
UNJUST DISCRIMINATION AGAINST INTERSTATE COMMERCE, AS WELL AS UNDUE
PREFERENCE AND ADVANTAGE TO PERSONS TRAVELING IN INTRASTATE COMMERCE ON
THE ILLINOIS LINES OF THE CHICAGO & NORTH WESTERN.  THE ORDER WAS
ENTERED UPON APPROPRIATE FINDINGS.  INTRASTATE RATES WITHIN ILLINOIS,
DOCKET NO. 11703, 102 I.C.C. 479.  IT DIRECTED AN INCREASE OF 20% OVER
THE THEN PREVAILING RATES FOR THE INTRASTATE COMMUTATION FARES INVOLVED
IN THIS CASE, BUT PROVIDED THAT THIS INCREASE SHOULD BE "SUBJECT TO A
MAXIMUM OF 2 CENTS PER MILE," THE COMMISSION'S OPINION STATING THAT
THIS WAS "IN DEFERENCE TO THE STATE STATUTE."  (102 I.C.C. AT 485.) 

ON FEBRUARY 28, 1936, THE INTERSTATE COMMERCE COMMISSION, AFTER A
GENERAL AND NATIONWIDE INVESTIGATION OF RAILROAD PASSENGER FARES,
ENTERED AN ORDER BY WHICH IT RETAINED ITS CONTINUING JURISDICTION OVER
THE ILLINOIS INTRASTATE COMMUTATION PASSENGER FARES HERE IN QUESTION,
BY SPECIFIC REFERENCE TO ITS PREVIOUS ORDER IN DOCKET NO. 11703,
ALTHOUGH THE ORDER DID NOT REQUIRE ANY MODIFICATION OF THOSE FARES. 
PASSENGER FARES AND SURCHARGES, DOCKET NO. 26550, 214 I.C.C. 174. 

IN DECEMBER 1941, THE COMMISSION UNDERTOOK A FURTHER NATIONWIDE
INVESTIGATION OF BOTH FREIGHT RATES AND PASSENGER FARES, TO DETERMINE
WHETHER INCREASES OF 10%, AS ASKED BY THE RAILROADS, SHOULD BE
AUTHORIZED IN VIEW OF INCREASED OPERATING EXPENSES AND COSTS OF
MATERIALS AND SUPPLIES.  BY ORDER OF JANUARY 21, 1942, IN THAT
PROCEEDING, KNOWN AS EX PARTE NO. 148, THE COMMISSION - UPON FINDINGS
THAT THE INCREASE WAS NECESSARY FOR ADEQUATE AND EFFICIENT SERVICE
DURING THE WAR EMERGENCY - AUTHORIZED THE RAILROADS, INCLUDING THE
CHICAGO & NORTH WESTERN, TO INCREASE PASSENGER FARES BY 10%.  THE ORDER
FURTHER DIRECTED THAT "ALL OUTSTANDING ORDERS, AS AMENDED, OF THE
COMMISSION, AUTHORIZING OR PRESCRIBING INTERSTATE AND INTRASTATE FARES,
OR BASES OF FARES BE, AND THEY ARE HEREBY, MODIFIED, EFFECTIVE
CONCURRENTLY WITH THE ESTABLISHMENT OF THE INCREASED FARES" APPROVED BY
THE ORDER, BUT ONLY TO THE EXTENT NECESSARY TO PERMIT THE AUTHORIZED
INCREASE TO BE ADDED TO "THE INTERSTATE AND INTRASTATE FARES APPROVED
OR PRESCRIBED IN, OR MAINTAINED OR HELD BY VIRTUE OF, SAID OUTSTANDING
ORDERS"; THAT A COPY OF THE ORDER BE FILED "IN THE DOCKET OF EACH SUCH
PROCEEDING, INCLUDING THOSE PROCEEDINGS UNDER SEC. 13 OF THE INTERSTATE
COMMERCE ACT ENUMERATED IN THE ORDER OF FEBRUARY 28, 1936, IN DOCKET
NO. 26550"; AND "THAT ALL TARIFFS OR SUPPLEMENTS CHANGING FARES BY
AUTHORITY OF THIS ORDER, WHICH ARE MAINTAINED OR HELD BY AUTHORITY OF
OUTSTANDING ORDERS OF THE COMMISSION, SHALL BEAR ON THEIR TITLE PAGES
SPECIFIC REFERENCE TO THIS ORDER."  IN A REPORT AND ORDER OF MARCH 2,
1942, IN EX PARTE NO. 148, THE COMMISSION REAFFIRMED THESE FINDINGS,
AUTHORIZED CERTAIN INCREASES IN FREIGHT RATES, AND MADE FURTHER
FINDINGS OF FACT IN SUPPORT OF THE INCREASES.  INCREASED RAILWAY RATES,
FARES, AND CHARGES, 1942, 248 I.C.C. 545. 

THE DISTRICT COURT HELD THAT THE COMMISSION'S ORDER OF JANUARY 21,
1942, BY ITS SPECIFIC REFERENCES TO ALL OUTSTANDING ORDERS PREVIOUSLY
ISSUED IN SEC. 13 PROCEEDINGS, WHICH WOULD INCLUDE THAT OF 1925 IN
DOCKET NO. 11703, HAD BEEN MADE APPLICABLE TO THE ILLINOIS COMMUTATION
PASSENGER FARES HERE IN QUESTION. 

ACTING UNDER THE PURPORTED AUTHORITY OF THESE ORDERS, APPELLEE, ABOUT
FEBRUARY 6, 1942, FILED WITH THE ILLINOIS COMMERCE COMMISSION, AND WITH
THE INTERSTATE COMMERCE COMMISSION, TARIFF SCHEDULES REFERRING TO THE
LATTER'S ORDER OF JANUARY 21, 1942, AND INCREASING BY 10%, EFFECTIVE
MARCH 8, 1942, ITS PREVIOUSLY EXISTING ILLINOIS INTRASTATE PASSENGER
COMMUTATION FARES.  THE FARES PROPOSED BY THESE TARIFFS IN SOME
INSTANCES EXCEED THE LIMIT IMPOSED BY THE ILLINOIS TWO CENT FARE LAW. 
ON FEBRUARY 18TH THE ILLINOIS COMMISSION ISSUED AN ORDER PURPORTING TO
SUSPEND THESE TARIFFS AND THE INCREASED FARES NAMED IN THEM UNTIL JULY
6, 1942, AND ORDERED APPELLEE NOT TO FILE ANY NEW TARIFF OR OTHERWISE
TO CHANGE THE PREVIOUSLY EXISTING FARES DURING THE PERIOD OF SUSPENSION
OR ANY EXTENSION OF IT WITHOUT THE PERMISSION OF THE STATE COMMISSION. 
THE ORDER DIRECTED THAT A HEARING BE HELD BY THE STATE COMMISSION ON
THE PROPRIETY OF THE PROPOSED CHANGES. 

THE DISTRICT COURT HELD THAT THE EFFECT OF THE STATE COMMISSION'S
ORDER WAS TO PRESCRIBE FOR APPELLEE THE CONTINUATION OF THE INTRASTATE
PASSENGER FARES IN FORCE IMMEDIATELY BEFORE FEBRUARY 18, 1942, AND TO
PROHIBIT APPELLEE FROM INCREASING OR MODIFYING THOSE FARES SAVE AS
PERMITTED BY THE STATE COMMISSION; THAT APPELLANTS HAVE THREATENED AND
CONTINUE TO THREATEN APPELLEE WITH THE PROSECUTION OF NUMEROUS
PROCEEDINGS IN THE STATE COURTS TO IMPOSE UPON APPELLEE AND HIS AGENTS
FINES AND PENALTIES FOR FAILURE TO COMPLY WITH THE STATE COMMISSION'S
ORDER; THAT UNLESS APPELLANTS ARE ENJOINED FROM SUCH THREATENED
PROSECUTIONS AND CUMULATIVE PENALTIES, APPELLEE WILL SUFFER IRREPARABLE
INJURY. 

FROM ALL THIS THE DISTRICT COURT CONCLUDED, AS MATTERS OF LAW, THAT
THE INTERSTATE COMMERCE COMMISSION'S ORDER OF JANUARY 21, 1942, IS A
VALID ORDER WHICH MODIFIED THE 1925 AND 1936 ORDERS TAKING JURISDICTION
OVER THE INTRASTATE COMMUTATION FARES IN QUESTION, AND THAT THE 1942
ORDER, WITHOUT MORE, AUTHORIZED THE INCREASED FARES PRESCRIBED IN THE
TARIFFS FILED BY APPELLEE.  THE COURT HELD THAT THE ILLINOIS
COMMISSION'S ORDER OF FEBRUARY 18, 1942, WAS INVALID AND WITHOUT FORCE
WITH RESPECT TO THESE COMMUTATION FARES BECAUSE IN CONFLICT WITH THE
1942 ORDER OF THE INTERSTATE COMMERCE COMMISSION, AND FOR THE
ADDITIONAL REASON THAT THE OLD FARES CONTINUED IN EFFECT BY THE STATE
COMMISSION ARE CONFISCATORY AND IN VIOLATION OF THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  THE COURT ACCORDINGLY RESTRAINED
APPELLANTS FROM ENFORCING THE STATE COMMISSION'S ORDER, AND FROM
INTERFERING WITH THE COLLECTION OF THE COMMUTATION FARES PRESCRIBED BY
APPELLEE'S PROPOSED TARIFFS. 

APPELLANTS ASSAIL THE JUDGMENT OF THE DISTRICT COURT ON THE GROUNDS
THAT THE PURPORT AND TRUE MEANING OF THE INTERSTATE COMMERCE
COMMISSION'S 1942 ORDER WAS NOT TO ORDER INTO EFFECT ILLINOIS
INTRASTATE FARES SUPERSEDING THOSE PREVIOUSLY IN FORCE, BUT ONLY TO
ASSENT TO INCREASED RATES WHEN AND IF PERMITTED BY THE STATE
COMMISSION, WHICH IT HAS NOT DONE; THAT THE INTERSTATE COMMERCE
COMMISSION'S ORDER, IF INTENDED TO COMPEL INCREASES IN INTRASTATE
RATES, IS NOT SUPPORTED BY ADEQUATE FINDINGS (CF. FLORIDA V. UNITED
STATES, 282 U.S. 194); AND THAT, SO FAR AS THE JUDGMENT BELOW RESTS ON
THE ALLEGED CONFISCATORY CHARACTER OF THE PREEXISTING RATES, THE
FINDING OF CONFISCATION IS NOT SUPPORTED BY THE RECORD, AND APPELLEE
HAS NOT PURSUED THE ADMINISTRATIVE REMEDY AVAILABLE BEFORE THE STATE
COMMISSION, AS IS PREREQUISITE TO EQUITABLE RELIEF. 

THE MEANING AND APPROPRIATE APPLICATION OF THE INTERSTATE COMMERCE
COMMISSION'S ORDER ARE UNDOUBTEDLY OBSCURE.  WE HAVE HEARD EXHAUSTIVE
ARGUMENT AND EXAMINED ELABORATE BRIEFS BY THE PARTIES TO THIS
LITIGATION AND BY THE CITY OF NEW YORK AS AMICUS CURIAE, ENDEAVORING TO
THROW LIGHT ON ITS TRUE MEANING.  LIKE ARGUMENTS HAVE BEEN MADE, IN A
CAUSE PENDING IN THE NEW YORK STATE COURTS,  FN1  TO DETERMINE THE
APPLICATION OF THIS ORDER TO INTRASTATE STANDARD PASSENGER FARES OF THE
LONG ISLAND RAILROAD. 

AS WE WERE IN DOUBT AS TO THE INTENDED SCOPE OF THE COMMISSION'S
ORDER, AND THE COMMISSION HAD NOT FILED A BRIEF OR OTHERWISE INTERVENED
IN THIS LITIGATION, WE REQUESTED A BRIEF ON ITS BEHALF DISCUSSING THE
MEANING AND APPLICATION OF ITS ORDER.  IN COMPLIANCE WITH OUR REQUEST
IT HAS FILED A BRIEF, IN WHICH IT TAKES THE POSITION THAT THE 1942
ORDER WAS NOT INTENDED, AND SHOULD NOT BE CONSTRUED, TO DIRECT A 10%
INCREASE IN THE ILLINOIS INTRASTATE COMMUTATION FARES ESTABLISHED IN
1925.  ALTHOUGH THE BRIEF IS NOT WHOLLY FREE FROM THE OBSCURITY
SURROUNDING THE ORDER ITSELF, THE COMMISSION'S ULTIMATE POSITION THAT
THE ORDER IS INAPPLICABLE TO THESE PARTICULAR COMMUTATION FARES IS ONE
WHICH, UNDER ALL THE CIRCUMSTANCES OF THE CASE, WE ACCEPT. 

THE DOUBT CONCERNING THE APPLICATION OF THE 1942 ORDER ARISES FROM
UNCERTAINTY AS TO THE EXTENT TO WHICH ITS BROAD LANGUAGE IS TO BE
DEEMED RESTRICTED WHEN READ WITH THE EARLIER ORDERS OF THE COMMISSION
RELATING TO INTRASTATE RATES, AND IN THE LIGHT OF THE NATURE OF THE
FUNCTIONS WHICH THE COMMISSION IS CALLED ON TO PERFORM IN PRESCRIBING
SUCH RATES.  ON ITS FACE, THE ORDER PROVIDES BROADLY THAT:  "ALL
OUTSTANDING ORDERS, AS AMENDED, OF THE COMMISSION, AUTHORIZING OR
PRESCRIBING INTERSTATE AND INTRASTATE FARES  ...  ARE HEREBY, MODIFIED,
EFFECTIVE CONCURRENTLY WITH THE ESTABLISHMENT OF THE INCREASED FARES
HEREIN APPROVED, ONLY TO THE EXTENT NECESSARY TO PERMIT THE INCREASE
HEREIN AUTHORIZED TO BE ADDED TO THE INTERSTATE AND INTRASTATE FARES
APPROVED OR PRESCRIBED IN  ...  SAID OUTSTANDING ORDERS."  WHETHER
THIS, WITHOUT MORE, WAS INTENDED OR OPERATES TO DIRECT A 10% INCREASE
OF APPELLEE'S INTRASTATE COMMUTATION FARES IN ILLINOIS, SO AS TO
PRESERVE THE ESTABLISHED RELATIONSHIP BETWEEN THEM AND INTERSTATE
FARES, RATHER THAN INTENDED TO PERMIT APPELLEE TO OBTAIN THE 10%
INCREASE ONLY WITH THE ASSENT OF THE STATE COMMISSION, IS THE
QUESTION. 

THE POSITION OF THE INTERSTATE COMMERCE COMMISSION IS, IN SUBSTANCE,
THAT THE ORDER IS NOT TO BE CONSTRUED AS PRESCRIBING ILLINOIS
INTRASTATE COMMUTATION FARES FOR THE CHICAGO & NORTH WESTERN, BECAUSE
THE ORDER WAS UNATTENDED BY THE PROCEDURE WHICH THE COMMISSION REGARDS
AS THE APPROPRIATE BASIS FOR SUCH AN ORDER, AND CONSEQUENTLY THAT THE
COMMISSION DID NOT HAVE IN MIND OR INTEND THAT THE ORDER SHOULD HAVE
THAT EFFECT. 

IT HAS LONG BEEN ESTABLISHED THAT THE INTERSTATE COMMERCE COMMISSION,
UNDER SEC. 13(4) OF THE ACT, HAS POWER TO SUPERSEDE AN INTRASTATE RATE
BY PRESCRIBING IN ITS STEAD A NEW RATE WHICH THE COMMISSION FINDS
NECESSARY TO REMOVE UNDUE OR UNREASONABLE PREJUDICE TO INTERSTATE
COMMERCE RESULTING FROM THE MAINTENANCE OF THE INTRASTATE RATE.  IT MAY
RIGHTLY ESTABLISH SUCH A MODIFICATION OF THE INTRASTATE RATE ONLY UPON
NOTICE TO THE INTRASTATE CARRIERS CONCERNED, AND HEARINGS, FOLLOWED BY
FINDINGS SHOWING PREJUDICE TO INTERSTATE COMMERCE.  UPON SUCH FINDINGS
THE STATUTE MAKES IT THE DUTY OF THE COMMISSION TO PRESCRIBE THE JUST
AND REASONABLE INTRASTATE RATE FOUND NECESSARY TO REMOVE THE
PREJUDICE.  WISCONSIN RAILROAD COMM'N V. C., B. & Q.R. CO., 257 U.S.
563; LOUISIANA PUBLIC SERVICE COMM'N V. TEXAS & NEW ORLEANS R. CO., 284
U.S. 125; UNITED STATES V. LOUISIANA, 290 U.S. 70.  AND FOR PURPOSES OF
THIS CASE WE MAY ASSUME, WITHOUT DECIDING, THAT INTRASTATE RATES WHICH
HAVE ONCE BEEN PRESCRIBED BY SEC. 13 ORDERS MAY BE MODIFIED BY A
BLANKET ORDER RAISING OR LOWERING THE LEVEL OF INTRASTATE AND
INTERSTATE RATES, EVEN THOUGH THE COMMISSION MAKES NO NEW FINDINGS OF
DISCRIMINATION BUT LEAVES THAT QUESTION SUBJECT TO LATER INQUIRY UPON
APPLICATIONS FILED IN PARTICULAR CASES.  CF. UNITED STATES V.
LOUISIANA, SUPRA, 73-79; NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 196
201.    IN 1920 THE INTERSTATE COMMERCE COMMISSION AUTHORIZED A GENERAL
INCREASE OF 20% IN INTERSTATE PASSENGER FARES, ESTABLISHING A
COUNTRYWIDE STANDARD PASSENGER FARE OF 3.6 CENTS A MILE.  INCREASED
RATES, 1920, 58 I.C.C. 220 AND 302.  THE COMMISSION LATER INSTITUTED
THE SEC. 13 PROCEEDING WHICH RESULTED IN ITS 1925 ORDER INCREASING BY
20%, SUBJECT TO A 2 CENT PER MILE MAXIMUM, THE ILLINOIS INTRASTATE
COMMUTATION FARES OF THE CHICAGO & NORTH WESTERN, IN ORDER TO REMOVE
THE PREJUDICE OF SUCH FARES TO INTERSTATE COMMERCE.  INTRASTATE RATES
WITHIN ILLINOIS, 102 I.C.C. 479.  THIS WAS FOLLOWED BY THE 1936 ORDER
DIRECTING A GENERAL REDUCTION OF INTERSTATE PASSENGER FARES.  BY THIS
ORDER THE COMMISSION, AS A MEANS OF INCREASING PASSENGER TRAFFIC,
REDUCED MAXIMUM STANDARD PULLMAN FARES TO THREE CENTS AND COACH FARES
TO TWO CENTS A MILE.  AND TO PREVENT INTRASTATE FARES SUBJECT TO THE
EARLIER SEC. 13 ORDERS FROM BEING HIGHER THAN THE NEW INTERSTATE
MAXIMUM FARES, THE COMMISSION ORDERED ALL OUTSTANDING SEC. 13 ORDERS TO
BE MODIFIED TO THE EXTENT NECESSARY TO PERMIT THE NEW FARES TO BECOME
EFFECTIVE.  PASSENGER FARES AND SURCHARGES, 214 I.C.C. 174.  WHILE THIS
ORDER AFFECTED MANY INTRASTATE FARES WHICH HAD PREVIOUSLY BEEN SUBJECT
TO SEC. 13 ORDERS, IT WAS WITHOUT EFFECT ON ILLINOIS COMMUTATION FARES
ON THE CHICAGO & NORTH WESTERN, WHICH HAD BEEN NO GREATER THAN THE
MAXIMUM OF TWO CENTS A MILE.  THUS THE ILLINOIS COMMUTATION FARES
INVOLVED IN THE PRESENT CASE, ESTABLISHED IN 1925, WERE NOT REDUCED
BETWEEN 1925 AND 1942. 

IT IS THE POSITION OF THE COMMISSION THAT, SINCE THE 10% INCREASE OF
1942 IF MANDATORY WOULD RAISE THESE ILLINOIS INTRASTATE COMMUTATION
FARES (UNLIKE THE STANDARD FARES) ABOVE THE LEVEL SET BY THE SEC. 13
ORDER OF 1925, AND AS THE COMMISSION MADE NO SPECIAL FINDINGS
JUSTIFYING SUCH AN INCREASE OF THE LEVEL OF INTRASTATE FARES, THE 1942
ORDER IS NOT TO BE UNDERSTOOD TO HAVE THE EFFECT ASCRIBED TO IT BY THE
DISTRICT COURT.  THE COMMISSION POINTS OUT THAT EVEN IF THE NEED OF
EQUIVALENCE OF INTRASTATE AND INTERSTATE FARES HAS NOT CHANGED SINCE
1925, THE COMMISSION IS CONCERNED NOT ONLY WITH THE NECESSITY FOR
MAINTAINING THE EQUIVALENCE, BUT ALSO WITH THE PARTICULAR POINT AT
WHICH THE FARES SHOULD BE BROUGHT TOGETHER.  THE COMMISSION INTIMATES
THAT ITS FINDINGS ESTABLISHING THE 1925 MAXIMUM LEVEL OF INTRASTATE
FARES WOULD NOT BE REGARDED BY IT AS SUFFICIENT SUPPORT FOR A STILL
HIGHER LEVEL IN 1942.  IT URGES THAT THE ABSENCE OF FINDINGS SUPPORTING
A HIGHER LEVEL THEREFORE INDICATES THAT ITS 1942 ORDER WAS NOT
INTENDED, WITHOUT MORE, TO INCREASE BY 10% THE ILLINOIS INTRASTATE
COMMUTATION FARES.  FN2 

THE INTERSTATE COMMERCE COMMISSION IS WITHOUT JURISDICTION OVER
INTRASTATE RATES EXCEPT TO PROTECT AND MAKE EFFECTIVE SOME REGULATION
OF INTERSTATE COMMERCE.  IN VIEW OF THE COMMISSION'S CONSTRUCTION OF
ITS ORDER, AND THE GROUNDS UPON WHICH IT RESTS, WE CAN ONLY CONCLUDE
THAT THERE IS AT LEAST SERIOUS DOUBT WHETHER THE 1942 PROCEEDING AND
THE ORDER WHICH RESULTED FROM IT WERE EVER INTENDED BY THE COMMISSION
TO INCREASE THE INTRASTATE RATES IN QUESTION.  SINCE THE COMMISSION
ALONE IS AUTHORIZED TO WIELD THE CONSTITUTIONAL POWER TO SET ASIDE
STATE-ESTABLISHED INTRASTATE RATES BY PRESCRIBING INTRASTATE RATES
ITSELF, STATE POWER CANNOT RIGHTLY BE DEEMED TO BE SUPPLANTED SO LONG
AS THE COMMISSION'S EXERCISE OF ITS AUTHORITY IS LEFT IN SERIOUS
DOUBT.  ARKANSAS RAILROAD COMM'N V. CHICAGO, R.I. & P.R. CO., 274 U.S.
597, 603.  AND WHERE THE APPLICABILITY OF THE ORDER IS AS DOUBTFUL AS
IT IS IN THIS CASE, WE SHOULD NOT FEEL JUSTIFIED IN DISREGARDING THE
COMMISSION'S DISCLAIMER IN THIS COURT OF ALL INTENTION TO OVERRIDE
ILLINOIS STATE LAW BY ITS 1942 ORDER - ESPECIALLY IN VIEW OF THE FACT
THAT IN THE SEC. 13 PROCEEDING IN 1925 THE COMMISSION HAD FRAMED ITS
ORDER IN DEFERENCE TO THE TWOCENT FARE LAW PREVAILING IN ILLINOIS. 

IT IS REGRETTABLE THAT PROLONGED LITIGATIONS SHOULD HAVE RESULTED
BECAUSE OF THE ABSENCE FROM THE COMMISSION'S ORDER OF A SENTENCE MORE
PRECISELY DEFINING ITS SCOPE, OR OF A CLARIFYING ORDER WHICH COULD HAVE
BEEN ENTERED AT ANY STAGE OF THE PENDING LITIGATIONS. 

SINCE WE ACCEPT THE COMMISSION'S CONCLUSION THAT THE 1942 ORDER IS
INAPPLICABLE, IT IS UNNECESSARY FOR US TO CONSIDER WHETHER, AS
APPELLANTS CONTEND, THE ORDER IF APPLICABLE WOULD BE OPEN TO COLLATERAL
ATTACK IN THIS PROCEEDING FOR THE INSUFFICIENCY OF THE COMMISSION'S
FINDINGS TO SUPPORT IT, OR WHETHER THAT ISSUE MAY BE LITIGATED ONLY IN
A SUIT TO SET ASIDE THE ORDER BROUGHT AGAINST THE UNITED STATES AS
PRESCRIBED BY THE URGENT DEFICIENCIES ACT.  38 STAT. 219, 28 U.S.C.
SEC. 46. 

ONLY A WORD NEED BE SAID OF THE DISTRICT COURT'S FINDING OF
CONFISCATION.  APPELLANTS FILED NO ANSWER TO THE BILL OF COMPLAINT AND
NO EVIDENCE WAS TAKEN IN THE CAUSE.  JUDGMENT IN FAVOR OF APPELLEE WAS
ENTERED UPON APPELLANTS' MOTION TO STRIKE THE COMPLAINT AND DISMISS THE
CAUSE, AND UPON THE PRAYER OF THE BILL FOR A PERMANENT INJUNCTION.  THE
ONLY SUPPORT FOR THE FINDING OF CONFISCATION IS IN THE GENERAL
ALLEGATIONS OF THE COMPLAINT THAT THE EXISTING INTRASTATE COMMUTATION
FARES COMPLAINED OF ARE CONFISCATORY, AND MORE PARTICULARLY THAT THESE
FARES ARE NOT ADEQUATE TO COMPENSATE FOR THE COST OF THE PARTICULAR
SERVICE. 

APART FROM THE INSUFFICIENCY OF SUCH ALLEGATIONS, WHEN NOT BUTTRESSED
BY CONVINCING PROOF, TO SUSTAIN AN INJUNCTION SETTING ASIDE RATES AS
CONFISCATORY, SEE CALIFORNIA RAILROAD COMM'N V. PACIFIC GAS CO., 302
U.S. 388, 401, IT APPEARS THAT WHEN THE PRESENT SUIT WAS BROUGHT THE
STATE COMMISSION HAD ORDERED A HEARING BEFORE IT CONCERNING THE
PROPRIETY OF APPELLEE'S PROPOSED INCREASE OF THE EXISTING, ALLEGEDLY
CONFISCATORY, FARES.  THERE IS NO CONTENTION AND NO FINDING THAT
APPELLEE'S ATTACK ON THE EXISTING FARES AS CONFISCATORY WAS NOT OPEN
FOR CONSIDERATION BEFORE THE COMMISSION.  THE EQUITABLE REMEDY SOUGHT
BY APPELLEE IN COURT SHOULD HAVE BEEN DENIED BECAUSE OF HIS FAILURE
FIRST TO PURSUE THE ADMINISTRATIVE REMEDY THUS AFFORDED.  GILCHRIST V.
INTERBOROUGH CO., 279 U.S. 159, 208-09; NATURAL GAS CO. V. SLATTERY,
302 U.S. 300, 310-11.  THERE ARE NO CIRCUMSTANCES OF PECULIAR URGENCY
ALLEGED, AND NO OTHER GROUND IS DISCLOSED BY THE RECORD WHICH WOULD
WARRANT A FEDERAL EQUITY COURT IN DISPENSING WITH THIS SALUTARY
REQUIREMENT. 

UPON THIS RECORD THE DISTRICT COURT SHOULD HAVE DECLINED TO PASS ON
THE MERITS OF THE CONFISCATION ISSUE.  REVERSED. 

FN1  THE SUPREME COURT OF NEW YORK CONCLUDED THAT THE COMMISSION'S
ORDER WAS NOT INTENDED TO DIRECT A 10% INCREASE IN THOSE INTRASTATE
RATES.  MATTER OF TRANSIT COMMISSION V. LONG ISLAND R. CO., 178 MISC.
290, 33 N.Y.S.2D 993.  THE COURT, HOWEVER, SUGGESTED THAT AN
APPLICATION MIGHT BE MADE TO THE INTERSTATE COMMERCE COMMISSION FOR A
CLARIFICATION OF ITS ORDER TO REMOVE ANY DOUBT.  ON SUCH APPLICATION
THE COMMISSION REFUSED TO CLARIFY THE ORDER, AND ON REHEARING THE COURT
ADHERED TO ITS ORIGINAL DECISION.  I.C.C. ORDER, ENTERED IN EX PARTE
148, APRIL 6, 1942; 107 N.Y.L. JOURNAL, P. 1958, MAY 8, 1942.  THE
DECISION WAS AFFIRMED BY THE APPELLATE DIVISION, 265 APP. DIV. 847, 38
N.Y.S.2D 361, AND THE CASE IS NOW PENDING IN THE NEW YORK COURT OF
APPEALS. 

FN2  THE BRIEF FILED BY THE COMMISSION IN THIS COURT TO ASSIST IN
DISCOVERING THE INTENDED MEANING OF THE ORDER IN EX PARTE NO. 148,
STATES THAT "THE 1942 INCREASE MAY WELL BE MANDATORY" AS TO STANDARD
INTRASTATE PASSENGER FARES COVERED BY PRIOR OUTSTANDING SEC. 13 ORDERS,
AS IN THE NEW YORK CASE DISCUSSED IN NOTE 1, SUPRA.  THIS IS SAID TO BE
BECAUSE, IN THE 1936 PROCEEDING, SUCH FARES WERE REDUCED, AND BECAUSE
THE 10% INCREASE OF 1942 WOULD ONLY RAISE THEM TO A LEVEL WELL WITHIN
THE MAXIMUM PRESCRIBED FOR SUCH FARES IN SEC. 13 PROCEEDINGS IN 1920. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE ROBERTS: 

I AM OF OPINION THAT THE JUDGMENT SHOULD BE AFFIRMED. 

THIS CASE IS IMPORTANT NOT SO MUCH BECAUSE OF THE RELATIVE RIGHTS OF
THE PARTIES AS OF THE PRINCIPLES ANNOUNCED BY THE COURT, WHICH I THINK
ARE LIKELY TO PRODUCE UNFORTUNATE RESULTS IN LATER CASES. 

FIRST.  THE MEANING AND SCOPE OF THE INTERSTATE COMMERCE COMMISSION'S
ORDER IS, IN MY VIEW, CLEAR.  IT EXPRESSLY INCLUDED THE EARLIER SEC. 13
ORDER AFFECTING THE INTRASTATE RATES OF THE CHICAGO AND NORTH WESTERN
WHICH ARE IN QUESTION.  I COULD UNDERSTAND THE ASSERTION THAT THE ORDER
IS OBSCURE IF ITS PURPORTED APPLICATION WERE TO INTRASTATE RATES NOT
SPECIFICALLY MENTIONED IN THE ORDER ITSELF.  BUT HERE THE COMMISSION
SEEMS EX INDUSTRIA TO HAVE REFERRED TO AN EARLIER SEC. 13 ORDER SO AS
TO LEAVE NO DOUBT OF ITS PURPOSE. 

SECOND.  EVEN IF THE ORDER WERE OBSCURE, ANY PARTY IN INTEREST COULD
HAVE OBTAINED A CLARIFICATION BY APPLICATION TO THE COMMISSION.  IT IS
SOMEWHAT DIFFICULT TO UNDERSTAND WHY THE COMMISSION, IN RESPONSE TO AN
INFORMAL APPLICATION, REFUSED TO VOUCHSAFE ANY CLARIFICATION OF THE
ORDER IN THE CASE OF NEW YORK INTRASTATE RATES. 

THIRD.  IT SEEMS TO ME INADMISSIBLE TO PERMIT THE COMMISSION, IN A
LITIGATION SUCH AS THE PRESENT, TO SUGGEST THAT ITS ORDER WAS NOT
INTENDED TO COVER THE INTRASTATE RATES IN QUESTION BECAUSE, FORSOOTH,
THE ORDER IS NOT SUPPORTED BY REQUISITE FINDINGS.  I FAIL TO SEE THE
FAIRNESS OR EQUITY OF PERMITTING PARTIES TO STRUGGLE FOR MONTHS OR
YEARS OVER THE MEANING OR SCOPE OF AN ORDER WHICH HAPPENS TO BE
INVOLVED IN A COLLATERAL PROCEEDING AND THEN PERMIT THE COMMISSION TO
APPEAR IN THE LITIGATION AND ATTEMPT TO EXPLAIN WHY ITS ORDER DOES OR
DOES NOT COVER THE SITUATION DISCLOSED. 

FOURTH.  I ALSO THINK IT INADMISSIBLE TO LITIGATE, IN A COLLATERAL
PROCEEDING SUCH AS THIS, THE QUESTION OF THE ADEQUACY OF THE SUPPORT OF
THE COMMISSION'S ORDER IN THE RECORD MADE BEFORE THE COMMISSION. 
CONGRESS HAS PROVIDED A METHOD WHEREBY ORDERS NOT ENTERED IN ACCORDANCE
WITH THE PROVISIONS OF THE INTERSTATE COMMERCE ACT MAY BE SET ASIDE OR
ENJOINED BY A PETITION TO A DISTRICT COURT OF THE UNITED STATES.  THIS
METHOD OF ATTACK IS AVAILABLE TO ANY PARTY IN INTEREST OR ANY
INTERVENOR BEFORE THE COMMISSION.  IT IS WRONG, IN MY JUDGMENT, TO
PERMIT A STATE COMMISSION, OR ANY OTHER PARTY, TO FOREGO THE METHOD
PRESCRIBED BY THE URGENT DEFICIENCIES ACT FOR ENJOINING OR SETTING
ASIDE A COMMISSION ORDER ON SUCH GROUND AS IS HERE ASSERTED, AND TO ACT
IN THE TEETH OF THE ORDER, RESERVING AN ATTACK ON THE FINDINGS, OR LACK
OF FINDINGS, TO SUPPORT THE ORDER UNTIL ITS REGULATIONS ARE CHALLENGED
IN AN INDEPENDENT PROCEEDING.  IN SUCH A PROCEEDING AS THIS, I THINK
THE ORDER SHOULD BE TREATED AS BINDING UNTIL MODIFIED OR SET ASIDE IN
THE MANNER PROVIDED BY FEDERAL LAW. 
..END :








N.Y. EX REL. WHITMAN V. WILSON, 318 U.S. 688 


NO. 72.  ARGUED FEBRUARY 1, 1943.  - DECIDED APRIL 12, 1943.  - 263 APP.
DIV. 908, 924, 32 N.Y.S.2D 29, 1023, VACATED. 


SINCE THE PRESENT PROCEEDING MUST BE DISMISSED IF HABEAS CORPUS IS NOT
AN APPROPRIATE REMEDY UNDER THE STATE LAW, AND SINCE THIS COURT IS
UNABLE TO DETERMINE THAT QUESTION WITH FINALITY, OR TO RESOLVE THE
CONTENTIONS WITH RESPECT TO IT, IN ADVANCE OF A CONTROLLING DECISION BY
THE STATE COURTS, THE JUDGMENT APPEALED FROM IS VACATED AND THE CAUSE
IS REMANDED TO THE STATE COURT FOR FURTHER PROCEEDINGS.  P. 690. 

NEW YORK EX REL. WHITMAN V. WILSON, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 317 U.S. 615, TO REVIEW A JUDGMENT AFFIRMING THE
DISMISSAL OF A WRIT OF HABEAS CORPUS.  LEAVE TO APPEAL TO THE HIGHEST
COURT OF THE STATE WAS DENIED, 263 APP. DIV. 924; 287 N.Y. 856; AND AN
APPEAL TAKEN AS OF RIGHT WAS DISMISSED, 290 N.Y. 670. 

PER CURIAM. 

PETITIONER BEGAN THIS PROCEEDING BY AN APPLICATION FOR A WRIT OF
HABEAS CORPUS IN THE SUPREME COURT OF THE STATE OF NEW YORK, WASHINGTON
COUNTY.  HE ALLEGED THAT HIS CONVICTION HAD BEEN PROCURED THROUGH THE
USE OF PERJURED TESTIMONY KNOWINGLY USED BY THE PROSECUTION, AND THAT
UNDER MOONEY V. HOLOHAN, 294 U.S. 103, HIS COMMITMENT WAS IN
DEPRIVATION OF HIS CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  THE WRIT OF HABEAS CORPUS WAS DISMISSED
BY THE SUPREME COURT; ITS ORDER WAS AFFIRMED BY THE APPELLATE DIVISION,
263 APP. DIV. 908, 32 N.Y.S.2D 29; LEAVE TO APPEAL TO THE COURT OF
APPEALS WAS DENIED BY BOTH THE APPELLATE DIVISION AND THE COURT OF
APPEALS.  263 APP. DIV. 924, 32 N.Y.S.2D 1023; 287 N.Y. 856, 40 N.E.2D
649.  WE GRANTED CERTIORARI, 317 U.S. 615, AND, BECAUSE PETITIONER WAS
A POOR PERSON WITHOUT COUNSEL OF HIS OWN SELECTION, WE APPOINTED
COUNSEL TO REPRESENT HIM.  SINCE THE ARGUMENT IN THIS COURT, THE COURT
OF APPEALS HAS ENTERED A FURTHER ORDER DISMISSING PETITIONER'S
ATTEMPTED APPEAL TO THAT COURT AS OF RIGHT, STATING THAT "THE CASE IS
ONE WHERE APPELLANT IS NOT ENTITLED TO A WRIT OF HABEAS CORPUS UNDER

IN HIS BRIEF AND ARGUMENT IN THIS COURT, THE ATTORNEY GENERAL OF THE
STATE OF NEW YORK, ON RESPONDENT'S BEHALF, TOOK THE POSITION THAT NEW
YORK LAW MAKES THE WRIT OF HABEAS CORPUS AVAILABLE TO TEST THE
CONSTITUTIONAL VALIDITY, UNDER THE DUE PROCESS CLAUSE, OF PETITIONER'S
DETENTION.  IN SUPPORT OF THIS CONTENTION, THE ATTORNEY GENERAL RELIED
UPON A NUMBER OF CASES IN THE NEW YORK COURTS, WHICH APPEAR TO SUSTAIN
HIS POSITION.  PEOPLE EX REL. MOORE V. HUNT, 258 APP. DIV. 24, 16
N.Y.S.2D 19; PEOPLE EX REL. HARRISON V. WILSON, 176 MISC. 1042, 29
N.Y.S.2D 809; PEOPLE EX REL. KRUGER V. HUNT, 257 APP. DIV. 917, 12
N.Y.S.2D 167; PEOPLE EX REL. KENNEDY V. HUNT, 257 APP. DIV. 1039, 13
N.Y.S.2D 797. 

AFTER THE ORAL ARGUMENT IN THIS COURT, THE COURT OF APPEALS ON MARCH
4, 1943, DECIDED THE CASE OF LYONS V. GOLDSTEIN, 290 N.Y. 19.  IT THERE
HELD THAT, DESPITE THE LAPSE OF TIME, A STATE COURT IN WHICH A JUDGMENT
OF CONVICTION HAS BEEN ENTERED RETAINS JURISDICTION, ANALOGOUS TO THE
COMMON LAW JURISDICTION UPON WRIT OF ERROR CORAM NOBIS, TO SET ASIDE
THE CONVICTION ON A SHOWING THAT A PLEA OF GUILTY HAD BEEN OBTAINED BY
FRAUD AND MISREPRESENTATION ON THE PART OF A PROSECUTING OFFICIAL.  THE
OPINION RESTS IN PART ON THE REQUIREMENT OF THE DUE PROCESS CLAUSE THAT
A PRISONER BE GRANTED A HEARING ON THE MERITS OF SUCH A CONTENTION; IT
CITES MOONEY V. HOLOHAN, SUPRA, AND ALSO WALKER V. JOHNSTON, 312 U.S.
275, AND WALEY V. JOHNSTON, 316 U.S. 101, 104-05, IN WHICH THIS COURT
SUSTAINED THE USE IN THE FEDERAL COURTS OF HABEAS CORPUS TO THAT END. 
THE OPINION DOES NOT EXPRESSLY CONSIDER OR OTHERWISE ALLUDE TO THE
QUESTION WHETHER, UNDER NEW YORK PRACTICE, HABEAS CORPUS MAY BE USED AS
EITHER AN ALTERNATIVE OR A CUMULATIVE REMEDY IN SUCH A CASE. 

IN HIS LATEST SUBMISSION TO US, THE ATTORNEY GENERAL NOW CONTENDS
THAT, IN THE LIGHT OF THE DECISION IN LYONS V. GOLDSTEIN, SUPRA, THE
REMEDY BY A PROCEEDING CORAM NOBIS IN THE COURT WHERE THE JUDGMENT OF
CONVICTION WAS ENTERED (HERE THE COURT OF GENERAL SESSIONS, NEW YORK
COUNTY) IS EXCLUSIVE; AND THAT HABEAS CORPUS ACCORDINGLY IS NOT
AVAILABLE TO PETITIONER IN THE STATE COURTS, EVEN IF ON THE MERITS
PETITIONER HAS SET FORTH A PRIMA FACIE CASE.  PETITIONER TAKES THE
CONTRARY POSITION. 

IF HABEAS CORPUS IS NOT AN APPROPRIATE REMEDY UNDER THE STATE LAW,
THE PRESENT PROCEEDING MUST BE DISMISSED.  BUT WE ARE UNABLE TO DECIDE
THIS QUESTION WITH FINALITY, OR TO RESOLVE THE CONTENTIONS WITH RESPECT
TO IT, IN ADVANCE OF A CONTROLLING DECISION OF THE NEW YORK COURTS.  IN
VIEW OF THE CHANGED SITUATION RESULTING FROM THE DECISION IN LYONS V.
GOLDSTEIN AFTER WE GRANTED CERTIORARI, WE THINK IT APPROPRIATE TO
VACATE THE JUDGMENT AND TO REMAND THE CAUSE TO THE STATE COURT FOR ITS
DETERMINATION IN THE LIGHT OF THAT DECISION, AND FOR SUCH FURTHER OR
OTHER PROCEEDINGS AS MAY BE DEEMED ADVISABLE.  PATTERSON V. ALABAMA,
294 U.S. 600, 607; MISSOURI EX REL. WABASH RY. CO. V. PUBLIC SERVICE
COMM'N, 273 U.S. 126, 131; STATE TAX COMM'N V. VAN COTT, 306 U.S. 511,
515-16; VILLA V. VAN SCHAICK, 299 U.S. 152.  SO ORDERED. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER: 

PETITIONER'S CLAIM IS THAT THE STATE OF NEW YORK HAS DENIED HIM THE
RIGHT WHICH, ACCORDING TO OUR DECISION IN MOONEY V. HOLOHAN, 294 U.S.
103, IS HIS UNDER THE CONSTITUTION OF THE UNITED STATES.  AS IN THE
MOONEY CASE, "PETITIONER URGES THAT THE 'KNOWING USE' BY THE STATE OF
PERJURED TESTIMONY TO OBTAIN THE CONVICTION AND THE DELIBERATE
SUPPRESSION OF EVIDENCE TO IMPEACH THAT TESTIMONY CONSTITUTED A DENIAL
OF DUE PROCESS OF LAW.  PETITIONER FURTHER CONTENDS THAT THE STATE
DEPRIVES HIM OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY ITS FAILURE,
IN THE CIRCUMSTANCES SET FORTH, TO PROVIDE ANY CORRECTIVE JUDICIAL
PROCESS BY WHICH A CONVICTION SO OBTAINED MAY BE SET ASIDE."  294 U.S.
AT 110. 

UNLESS I MISAPPREHEND THE CONTROLLING DECISIONS OF THE NEW YORK COURT
OF APPEALS AND THE AUTHORITATIVE COMMENTARY THEREON BY THE CHIEF JUDGE
OF THAT COURT, IN A SUBMISSION BEFORE US, NEW YORK RECOGNIZES THE RIGHT
WHICH PETITIONER SEEKS TO VINDICATE HERE BY PROVIDING A PROCEDURE FOR
ASSERTING IT DIFFERENT FROM THAT WHICH PETITIONER HAS PURSUED. 
PETITIONER HAS SOUGHT TO PROVE HIS CLAIM IN THE NEW YORK COURTS THROUGH
THE WRIT OF HABEAS CORPUS.  BUT SEC. 1231 OF THE NEW YORK CIVIL
PRACTICE ACT, PROVIDING THAT "A PERSON IS NOT ENTITLED TO" HABEAS
CORPUS "WHERE HE HAS BEEN COMMITTED OR IS DETAINED BY VIRTUE OF THE
FINAL JUDGMENT OR DECREE OF A COMPETENT TRIBUNAL OF CIVIL OR CRIMINAL
JURISDICTION," DOES NOT ALLOW THE USE OF THE WRIT TO RAISE SUCH A
CLAIM.  THAT WRIT IN NEW YORK MERELY TESTS THE LEGALITY OF A DETENTION
ACCORDING TO THE FACE OF THE RECORD.  AS, FOR INSTANCE, WHERE ONE UNDER
SENTENCE IS TRANSFERRED FROM A REFORMATORY TO A STATE PRISON AND THERE
DETAINED UNDER A VOID ORDER, PEOPLE EX REL. SAIA V. MARTIN, 289 N.Y.
471, 46 N.E.2D 890, OR WHERE A RELATOR IS HELD IN CUSTODY UNDER THE
PROVISIONS OF A STATUTE CLAIMED TO BE UNCONSTITUTIONAL.  SEE PEOPLE EX
REL. BRYANT V. ZIMMERMAN, 241 N.Y. 405, 150 N.E. 497; 278 U.S. 63.  NEW
YORK RECOGNIZES THE CONSTITUTIONAL DUTY TO PROVIDE A REMEDY FOR SUCH A
CLAIM AS ARISES UNDER THE DOCTRINE OF MOONEY V. HOLOHAN, SUPRA.  BUT
NEW YORK'S REMEDY FOR TESTING SUCH A CLAIM IS NOT BY HABEAS CORPUS BUT
BY APPROPRIATE MOTION BEFORE THE COURT IN WHICH THE SENTENCE OF
CONVICTION WAS RENDERED.  LYONS V. GOLDSTEIN, 290 N.Y. 19, 25, 47
N.E.2D 425. 

SINCE THE ARGUMENT IN THIS CASE, THE NEW YORK COURT OF APPEALS
FORMALLY DISMISSED PETITIONER'S APPEAL TO THAT COURT FROM THE ORDER OF
THE APPELLATE DIVISION DENYING HIM HABEAS CORPUS, ON THE GROUND THAT
"THE CASE IS ONE WHERE APPELLANT IS NOT ENTITLED TO A WRIT OF HABEAS
CORPUS UNDER SECTION 1231 OF THE CIVIL PRACTICE ACT."  BUT INASMUCH AS
"THE CONSTITUTIONAL QUESTIONS WHICH APPELLANT ASKED THE COURT TO REVIEW
ARE SUBSTANTIAL," TO USE THE LANGUAGE OF CHIEF JUDGE LEHMAN, HE COULD,
UNDER NEW YORK PRACTICE, HAVE GONE TO THE COURT OF APPEALS AS OF RIGHT
IF HABEAS CORPUS WERE THE PROPER REMEDY.  THE MERITS OF PETITIONER'S
CONSTITUTIONAL CLAIM HAVE THEREFORE NEVER BEEN PASSED ON BY, BECAUSE
NEVER PRESENTED IN AN APPROPRIATE PROCEEDING TO, THE HIGHEST AVAILABLE
NEW YORK COURT.  CONSEQUENTLY, IT CANNOT BE ENTERTAINED HERE.  SINCE
PETITIONER HAS MISCONCEIVED THE MODE BY WHICH HIS CONSTITUTIONAL CLAIM
MAY PROPERLY BE BROUGHT BEFORE THE NEW YORK COURTS, THIS PETITION
SHOULD BE DISMISSED. 

MR. JUSTICE ROBERTS AND MR. JUSTICE REED JOIN IN THIS OPINION. 
..END :










HELVERING V. STOCK YARDS CO., 318 U.S. 693 


NO. 488.  ARGUED MARCH 9, 10, 1943.  - DECIDED APRIL 12, 1943.  - 129
F.2D 937, REVERSED. 


THE CONCLUSION OF THE BOARD OF TAX APPEALS THAT THE TAXPAYER
CORPORATION WAS "AVAILED OF" FOR THE PURPOSE OF PREVENTING THE
IMPOSITION OF SURTAX UPON ITS STOCKHOLDERS, THROUGH THE MEDIUM OF
ACCUMULATION OF ITS PROFITS - WITHIN THE MEANING OF SEC. 104 OF THE
REVENUE ACTS OF 1928 AND 1932, IMPOSING IN SUCH CASE A 50% ADDITIONAL
TAX - WAS SUPPORTED BY SUBSTANTIAL EVIDENCE, AND SHOULD NOT HAVE BEEN
DISTURBED ON APPEAL.  P. 702. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. CHICAGO STOCK YARDS
CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 317 U.S. 619, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 41 B.T.A. 590, SUSTAINING THE DETERMINATION OF A
DEFICIENCY IN INCOME TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE BOARD OF TAX APPEALS SUSTAINED THE PETITIONER'S DETERMINATION OF
DEFICIENCIES IN THE RESPONDENT'S INCOME TAX FOR 1930, 1932, AND 1933. 
FN1  THE CIRCUIT COURT OF APPEALS REVERSED THE BOARD'S DECISION.  FN2
WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
INVOLVED. 

THE CHALLENGED ASSESSMENT WAS OF THE FIFTY PER CENT ADDITIONAL TAX
IMPOSED BY SEC. 104 OF THE REVENUE ACTS OF 1928 AND 1932.  FN3  THE
SUBSECTION (A), THAT IF ANY CORPORATION IS FORMED OR AVAILED OF FOR THE
PURPOSE OF PREVENTING THE IMPOSITION OF SURTAX UPON ITS SHAREHOLDERS
THROUGH THE MEDIUM OF PERMITTING ITS GAINS AND PROFITS TO ACCUMULATE
INSTEAD OF BEING DIVIDED OR DISTRIBUTED, THE ADDITIONAL TAX SHALL BE
IMPOSED.  THAT THE CORPORATION "IS A MERE HOLDING OR INVESTMENT
COMPANY," OR THAT THE GAINS OR PROFITS ARE "PERMITTED TO ACCUMULATE
BEYOND THE REASONABLE NEEDS OF THE BUSINESS," IS DECLARED, BY
SUBSECTION (B), PRIMA FACIE EVIDENCE OF A PURPOSE TO AVOID THE SURTAX. 

THE UNION STOCK YARDS & TRANSIT COMPANY OF CHICAGO, HEREINAFTER
CALLED TRANSIT COMPANY, WAS INCORPORATED IN 1865 TO OPERATE STOCK YARDS
IN CHICAGO.  ITS BUSINESS WAS PROFITABLE.  FREDERICK H. PRINCE BECAME A
STOCKHOLDER.  IN 1890, PACKERS, WHO WERE THE COMPANY'S PRINCIPAL SOURCE
OF BUSINESS, THREATENED TO REMOVE THEIR PLANTS FROM CHICAGO UNLESS THEY
WERE GIVEN A SHARE IN ITS PROFITS.  DUE TO LIMITATIONS IN ITS CHARTER,
THE CORPORATION COULD NOT RAISE FUNDS NECESSARY TO BUY OFF THE
PACKERS.  MR. PRINCE AND OTHER STOCKHOLDERS MET THE SITUATION BY
ORGANIZING A HOLDING COMPANY UNDER THE LAW OF NEW JERSEY, THE CHICAGO
JUNCTION RAILWAYS & UNION STOCK YARDS COMPANY, HEREINAFTER CALLED THE
NEW JERSEY COMPANY, WHICH ACQUIRED ALL OF THE CAPITAL STOCK OF THE
TRANSIT COMPANY.  THE CAPITAL STRUCTURE AT ORGANIZATION WAS 65,000
SHARES EACH OF PREFERRED AND COMMON, ALL OF $100 PAR. COLLATERAL TRUST
BONDS, SECURED BY TRANSIT COMPANY STOCK, WERE ISSUED, OF WHICH
$14,000,000 WERE ULTIMATELY OUTSTANDING.  THE CHARTER WAS TO EXPIRE IN
1940.  THE NEW JERSEY COMPANY CAME TO OWN ALL OF THE STOCK OF THE
TRANSIT COMPANY, OF A RAILWAY COMPANY, A RAILROAD COMPANY, AND ALL
BENEFICIAL INTEREST IN A REAL ESTATE TRUST, WHICH THEMSELVES, OR
THROUGH SUBSIDIARIES, PURSUED ACTIVITIES COLLATERAL TO THE STOCK-YARDS
BUSINESS.  BY PAYMENTS IN CASH AND ITS OWN BONDS, IT PROCURED FROM THE
PACKERS AN AGREEMENT TO MAINTAIN THE STOCK YARDS AT THEIR THEN LOCATION
FOR FIFTEEN YEARS. 

WHEN THIS AGREEMENT WAS ABOUT TO EXPIRE, THE PACKERS PRESENTED FRESH
DEMANDS AND MR. PRINCE WAS COMPELLED TO DEVISE SOME METHOD OF
SATISFYING THEM.  HE DECIDED THAT, IF HE COULD OBTAIN THE COOPERATION
OF THE LARGEST, HE NEED NOT TROUBLE ABOUT THE OTHERS.  TO ATTAIN THIS
END, HE ORGANIZED, IN 1911, THE RESPONDENT, A MAINE CORPORATION.  HE
FORMED A COMMITTEE WHICH MADE A PROPOSAL TO THE NEW JERSEY COMPANY'S
COMMON STOCKHOLDERS THAT THE RESPONDENT WOULD PURCHASE THEIR STOCK BY
GIVING THEM $200 PAR OF ITS 5% BONDS FOR EACH SHARE OF COMMON STOCK,
OR, IN THE ALTERNATIVE, WOULD STAMP THE STOCK WITH THE COMPANY'S
AGREEMENT TO GUARANTEE A 9% DIVIDEND UPON IT; THIS IN CONSIDERATION
THAT THE RESPONDENT SHOULD BE ENTITLED TO ALL OF THE NEW JERSEY
COMPANY'S EARNINGS OVER AND ABOVE ITS EXPENSES, INTEREST CHARGES, AND
THE GUARANTEED DIVIDEND ON THE COMMON.  THUS IT WAS INTENDED TO DRAW
INTO THE TAXPAYER'S TREASURY THE EXCESS OF THE NEW JERSEY COMPANY'S
EARNINGS.  ARMOUR & CO. WAS GIVEN 20% OF THE RESPONDENT'S STOCK, PRINCE
RETAINING 80% OF IT.  IN THIS WAY, ARMOUR WAS TO SHARE IN THE EARNINGS
OF THE STOCK YARDS. 

BY A DECREE IN A SUIT UNDER THE SHERMAN ACT, ARMOUR WAS ORDERED TO
PART WITH ALL INTEREST IN THE STOCK YARDS.  IN CONSEQUENCE, MR. PRINCE
PURCHASED THE ARMOUR-HELD STOCK FOR $1,000,000, WHICH SUM WAS LOANED TO
HIM BY THE RESPONDENT.  THUS, PRINCE BECAME THE TAXPAYER'S ONLY
STOCKHOLDER; AND IT IS CONCEDED THAT HE RETAINED OWNERSHIP OR VOTING
POWER WHICH GAVE HIM SOLE CONTROL OF THE COMPANY TO THE CLOSE OF 1933. 
FN4 

BY AUGUST 1914 THE RESPONDENT HAD ACQUIRED, IN EXCHANGE FOR ITS
BONDS, 31,075 COMMON SHARES OF THE NEW JERSEY COMPANY, AND 33,922
SHARES HAD BEEN STAMPED WITH ITS GUARANTEE.  IN 1919 IT ACQUIRED THE
THREE REMAINING SHARES.  IN THE PERIOD FROM 1915 TO 1933, IT ORGANIZED
TWO SMALL WHOLLY-OWNED SUBSIDIARIES TO TRANSACT BUSINESS CONNECTED WITH
THE STOCK-YARDS ENTERPRISE; AND ALSO ORGANIZED, AND HELD FOUR-FIFTHS OF
THE CAPITAL STOCK OF, A NATIONAL BANK INTENDED TO SERVE THE STOCK-YARD
DISTRICT. 

THE RESPONDENT IN ADDITION TO THE NEW JERSEY COMPANY COMMON STOCK
ACQUIRED BY EXCHANGE OF ITS OWN BONDS THEREFOR, BOUGHT SUCH STOCK FOR
CASH.  BY DECEMBER 31, 1929, IT HAD ACQUIRED 58,742 OF THE 65,000
SHARES OUTSTANDING. 

AS THE CHARTER OF THE NEW JERSEY COMPANY WAS TO EXPIRE IN 1940, MR.
PRINCE, AT SOME DATE NOT CLEARLY FIXED BY THE TESTIMONY, FORMED THE
PLAN OF ACCUMULATING CASH IN THE RESPONDENT'S TREASURY SUFFICIENT TO
PAY THE DEBTS OF THE NEW JERSEY COMPANY AND LIQUIDATE IT BY THAT TIME. 
TO DO THIS, IT WOULD BE NECESSARY TO REDEEM THE OUTSTANDING PREFERRED
STOCK AT PAR, PAY OFF THE $14,000,000 MORTGAGE AND OVER $6,000,000 OF
FIXED OBLIGATIONS OF SUBSIDIARIES WHICH HAD BEEN GUARANTEED BY THE NEW
JERSEY COMPANY.  IT WOULD ALSO BE NECESSARY TO PURCHASE 6,258 SHARES OF
NEW JERSEY COMMON NOT THEN OWNED.  THUS, AS OF DECEMBER 31, 1929, THE
PLAN INVOLVED THE EXPENDITURE OF ABOUT $28,000,000 BY 1940.  IF IT
COULD BE CONSUMMATED, THE TAXPAYER WOULD THEN OWN THE ENTIRE STOCK
YARDS ENTERPRISE CLEAR OF DEBT, OTHER THAN ITS OWN BONDS THEN
OUTSTANDING IN THE AMOUNT OF $3,227,000 DUE IN 1961.  THAT ENTERPRISE,
TREATED AS A WHOLE, THEN HAD CASH AND LIQUID ASSETS AMOUNTING TO
$21,705,185,  FN5  AND FIXED AND OTHER ASSETS OF A BOOK VALUE OF
$40,000,000.  THE BULK OF THE LIQUID ASSETS HAD BEEN DRAWN UP INTO THE
RESPONDENT'S TREASURY BY VIRTUE OF THE AGREEMENT WITH THE NEW JERSEY
COMPANY'S STOCKHOLDERS. 

THE RESPONDENT'S ASSETS DECEMBER 31, 1929, EXCEEDED ITS LIABILITIES,
INCLUDING ITS CAPITAL STOCK, BY $19,622,355.  FROM THAT DATE TO THE
CLOSE OF 1933 ITS EARNINGS WERE $10,243,373, OF WHICH $1,600,000 WAS
PAID OUT IN DIVIDENDS, AND $8,643,373 WAS ADDED TO EARNED SURPLUS. 
FN6 

THESE ARE THE SALIENT FACTS.  THEY ARE STATED IN GREATER DETAIL BY
THE BOARD AND BY THE COURT BELOW. 

THE BOARD REACHED THESE CONCLUSIONS:  THAT THE RESPONDENT WAS A MERE
HOLDING OR INVESTMENT COMPANY AS DEFINED BY SEC. 104, AND HAD NOT
OVERCOME THE CONSEQUENT PRESUMPTION THAT ITS SURPLUS HAD BEEN
ACCUMULATED FOR THE PURPOSE OF AVOIDING SURTAX UPON THE EARNINGS OF MR.
PRINCE, AS SOLE STOCKHOLDER; THAT, ALTHOUGH IT WAS MORE THAN A MERE
HOLDING OR INVESTMENT COMPANY, ITS PROFITS HAD BEEN PERMITTED TO
ACCUMULATE BEYOND THE REASONABLE NEEDS OF THE BUSINESS, AND THE
EVIDENCE DID NOT OVERCOME THE PRIMA FACIES WHICH SEC. 104(B) ATTRIBUTES
TO THIS FACT; AND THAT, WITHOUT THE BENEFIT OF THE PRESUMPTIONS CREATED
BY SEC. 104(B), THE PROOFS REQUIRE THE CONCLUSION THAT THE RESPONDENT
HAD BEEN AVAILED OF FOR THE PURPOSE OF ACCUMULATING PROFITS BEYOND ITS
NEEDS FOR THE PURPOSE OF AVOIDING SURTAX UPON ITS STOCKHOLDER. 

THE CIRCUIT COURT OF APPEALS HELD THAT, VIEWING THE FACTS MOST
FAVORABLY TO THE GOVERNMENT, THE RESPONDENT WAS NOT A MERE HOLDING OR
INVESTMENT COMPANY WITHIN THE MEANING OF THE STATUTE; THAT, IN
CONCLUDING THE COMPANY HAD ACCUMULATED PROFITS BEYOND ITS REASONABLE
NEEDS, THE BOARD HAD EMPLOYED A WRONG YARDSTICK IN THAT IT HAD FAILED
TO GIVE WEIGHT TO THE CONTROLLING PURPOSE OF THE ACCUMULATION, NAMELY,
THE LONG RANGE PLAN TO LIQUIDATE THE NEW JERSEY COMPANY AND CONSOLIDATE
ALL THE ASSETS, FREE OF DEBT, IN THE RESPONDENT; AND, FINALLY, THAT, IN
PURPORTING TO REACH ITS FINAL CONCLUSION WITHOUT REFERENCE TO THE
STATUTORY PRESUMPTIONS, IT HAD ALLOWED THEM TO AFFECT ITS JUDGMENT. 
ACCORDINGLY THE COURT REVERSED AND DIRECTED THE BOARD TO RETRY THE CASE
IN CONFORMITY TO THE COURT'S OPINION. 

THE PETITIONER URGES ACCEPTANCE OF THE BOARD'S FIRST CONCLUSION THAT
THE RESPONDENT WAS A MERE HOLDING OR INVESTMENT COMPANY.  HE SAYS THAT
THE TAXPAYER WAS NOTHING BUT A POCKETBOOK FOR MR. PRINCE, WHO, AS AN
INDIVIDUAL, MANAGED AND CONTROLLED THE ENTIRE ENTERPRISE AND USED THE
TAXPAYER MERELY AS A REPOSITORY OF SURPLUS EARNINGS WHICH WERE INTENDED
ULTIMATELY TO BE USED FOR HIS BENEFIT.  WE FIND IT UNNECESSARY TO
CONSIDER THIS CONTENTION, SINCE WE THINK THE BOARD'S DECISION MAY BE
SUPPORTED APART FROM ANY PRESUMPTION ARISING UNDER THE TERMS OF THE
ACT. 

THE RESPONDENT WAS NOT FORMED FOR THE PURPOSE OF AVOIDING SURTAX ON
ITS STOCKHOLDERS.  NO SUCH EXACTION EXISTED IN 1911.  UNTIL SOME EFFORT
WAS MADE BY LEGISLATION TO REACH AND TAX ACCUMULATED AND UNDISTRIBUTED
SURPLUS, THE TAXPAYER'S DIVIDEND POLICY WAS IMMATERIAL.  ACCUMULATION
OF PROFITS IN ITS TREASURY WAS OF NO TAX SIGNIFICANCE AND, SO FAR AS
APPEARS, IT WAS OTHERWISE A MATTER OF INDIFFERENCE, LEGALLY SPEAKING,
WHETHER SURPLUS MONEYS WERE ALLOWED TO REMAIN IN THE TREASURY OR WERE
PAID IN DIVIDENDS. 

THE SERIES OF ACTS WHICH SOUGHT TO DISCOURAGE SUCH ACCUMULATIONS HAD
ITS ORIGIN IN 1913 WITH THE IMPOSITION OF AN ADDITIONAL TAX ON THE
SHAREHOLDER RATHER THAN ON THE CORPORATION.  FN7  THE ADDITIONAL TAX
WAS LAID ON THE CORPORATION BY THE REVENUE ACT OF 1921 AND THIS METHOD
WAS RETAINED IN SUBSEQUENT ACTS TO AND INCLUDING THAT OF 1932.  FN8  AS
THE THEORY OF THE REVENUE ACTS HAS BEEN TO TAX CORPORATE PROFITS TO THE
CORPORATION, AND THEIR RECEIPT ONLY WHEN DISTRIBUTED TO THE
STOCKHOLDERS, THE PURPOSE OF THE LEGISLATION IS TO COMPEL THE COMPANY
TO DISTRIBUTE ANY PROFITS NOT NEEDED FOR THE CONDUCT OF ITS BUSINESS SO
THAT, WHEN SO DISTRIBUTED, INDIVIDUAL STOCKHOLDERS WILL BECOME LIABLE
NOT ONLY FOR NORMAL BUT FOR SURTAX ON THE DIVIDENDS RECEIVED. 

A CORPORATE PRACTICE ADOPTED FOR MERE CONVENIENCE OR OTHER REASONS,
AND WITHOUT TAX SIGNIFICANCE WHEN ADOPTED, MAY HAVE BEEN CONTINUED WITH
THE ADDITIONAL MOTIVE OF AVOIDING SURTAX ON THE STOCKHOLDERS.  THE
BOARD'S CONCLUSION MAY JUSTIFIABLY HAVE BEEN REACHED IN THE VIEW THAT,
WHATEVER THE MOTIVE WHEN THE PRACTICE OF ACCUMULATION WAS ADOPTED, THE
PURPOSE OF AVOIDING SURTAX INDUCED, OR AIDED IN INDUCING, THE
CONTINUANCE OF THE PRACTICE. 

THE BOARD, THE COURT BELOW, AND THE PARTIES IN BRIEF AND ARGUMENT
HAVE DISCUSSED MANY FACTS THOUGHT TO BE RELEVANT TO THE PURPOSE OF THE
ACCUMULATION OF SURPLUS BY THE RESPONDENT.  THE INTERRELATION OF THE
TAXPAYER AND THE OTHER CORPORATIONS INVOLVED IN THE ENTERPRISE, THE
EXPIRATION OF THE NEW JERSEY COMPANY'S CHARTER, THE POLICY OR
OBLIGATION OF THE TAXPAYER TO PROVIDE FOR THE PAYMENT OF THE DEBTS OF
THE NEW JERSEY COMPANY AND ITS SUBSIDIARIES, THE RELATION OF MR. PRINCE
AS OFFICER AND ACTIVE MANAGER OF UNDERLYING CORPORATIONS, THE FINANCIAL
TRANSACTIONS BETWEEN HIM AND THE RESPONDENT, ARE DISCUSSED AND
ARGUMENTS PRO AND CON ARE BASED THEREON IN AN EFFORT TO PROVE OR TO
DISPROVE THE CHARACTER OF THE RESPONDENT, THE NECESSITIES OF ITS
BUSINESS, AND THE NATURE OF THE RELATIONSHIP BETWEEN IT AND MR.
PRINCE. 

IF WE ELIMINATE THESE MATTERS FROM CONSIDERATION AND TREAT THE
RESPONDENT AS A CONTROLLER, MANAGER, AND, TO A LARGE EXTENT, THE
PROPRIETOR OF THE ENTIRE ENTERPRISE, WE THINK THE BOARD'S CONCLUSION OF
FACT HAS SUPPORT IN THE EVIDENCE AND MUST BE ACCEPTED. 

THE RESPONDENT LAUNCHED ITS CORPORATE ACTIVITIES WITH PARTNERS AND CO
INVESTORS IN THE STOCK-YARDS ENTERPRISE.  THE NEW JERSEY COMPANY, WHICH
THEN EMBRACED THE ENTIRE BUSINESS, HAD A CAPITAL INVESTMENT REPRESENTED
BY STOCK AND BONDS OF NOT LESS THAN $27,000,000.  IN 1911, WHEN THE
RESPONDENT WAS ORGANIZED, THE ENTERPRISE HAD A NET WORTH OF AT LEAST
$16,000,000.  FN9  THE RESPONDENT, WITH A PAID-IN CASH CAPITAL OF
$1,000,000, PURCHASED  FN10  THE RIGHT TO RECEIVE THE NET EARNINGS OF
THE ENTERPRISE AFTER THE PAYMENT OF THE NEW JERSEY COMPANY'S FIXED
CHARGES, OPERATING EXPENSES, AND THE GUARANTEED DIVIDENDS ON ITS
STOCK.  THE RESPONDENT'S GOAL WAS THE ACQUISITION, BY THE YEAR 1940, OF
THE INTEREST OF ALL OTHERS HAVING ANY CAPITAL SHARE IN THE ENTERPRISE,
AND THE METHOD PURSUED WAS TO ACCUMULATE CURRENT EARNINGS  FN11  SO
THAT, BY 1940, THEY WOULD BE AVAILABLE FOR SUCH CAPITAL INVESTMENT. 
THIS INVESTMENT WOULD, OF COURSE, REDOUND TO THE BENEFIT OF THE HOLDER
OR HOLDERS OF THE RESPONDENT'S STOCK.  THE SITUATION DISCLOSED IS, IN
LEGAL EFFECT, SIMILAR TO THAT PRESENTED IN HELVERING V. NATIONAL
GROCERY CO., 304 U.S. 282.  THERE THE SURPLUS EARNINGS WERE INVESTED IN
SECURITIES UNRELATED TO THE BUSINESS IN HAND AND WERE, AND WOULD
REMAIN, AVAILABLE FOR WHATEVER PURPOSES KOHL, THE SOLE STOCKHOLDER,
DETERMINED.  HERE THE ACCUMULATED EARNINGS BECAME AVAILABLE TO THE
INVESTMENT PURPOSE AND PROGRAM OF MR. PRINCE, THE SOLE STOCKHOLDER OF
THE TAXPAYER, OR FOR OTHER PURPOSES AS HE MIGHT DETERMINE.  BY THE USE
OF THE TAXPAYER'S CORPORATE PERSONALITY, MR. PRINCE COULD PLOW THE
EARNINGS OF THE ENTERPRISE INTO A CAPITAL INVESTMENT WHICH WOULD
CONVERT, BY 1940, AN ORIGINAL CAPITAL VENTURE OF $1,000,000 INTO FREE
ASSETS OF A VALUE IN EXCESS OF $60,000,000.  AND THIS WITHOUT THE
PAYMENT OF TAXES  FN12  OR SURTAXES ON THE BULK OF THE EARNINGS. 
ALTHOUGH MR. PRINCE DENIED ANY PURPOSE TO AVOID SURTAXES, THE BOARD, AS
IN THE NATIONAL GROCERY CASE, WAS FREE TO CONCLUDE, UPON ALL THE
EVIDENCE, THAT SUCH WAS THE PURPOSE.    THE RESPONDENT'S POSITION IS
THAT, AS THE NEW JERSEY COMPANY'S CHARTER WAS TO EXPIRE IN 1940, AND AS
RESPONDENT WAS UNDER WHAT IT DEEMED A MORAL AND, INDEED, A LEGAL
OBLIGATION TO PAY OFF THE MORTGAGE DEBTS OF THE NEW JERSEY COMPANY AND
ITS SUBSIDIARIES AND TO REDEEM ITS OUTSTANDING STOCK, THE ACCUMULATION
OF EARNINGS WAS NECESSARY TO THE PRESERVATION OF ITS BUSINESS.  THERE
ARE TWO SUFFICIENT ANSWERS.  MR. PRINCE, THE SOLE STOCKHOLDER, IF IN
RECEIPT OF THE RESPONDENT'S EARNINGS, COULD EQUALLY WELL HAVE DONE WHAT
THE RESPONDENT PROPOSED TO DO, THAT IS, TURN ACCUMULATED EARNINGS INTO
INVESTED CAPITAL.  AND THE EVIDENCE SHOWS THAT THE NEW JERSEY COMPANY'S
CHARTER COULD HAVE BEEN RENEWED IN 1940.  CONTINUANCE OR REFINANCING OF
SUCH AN ENTERPRISE ON THE FACE OF THINGS WOULD HAVE BEEN PRACTICABLE. 

WE CANNOT SAY THAT THE BOARD'S CONCLUSION THAT RESPONDENT WAS AVAILED
OF FOR THE PURPOSE OF PREVENTING THE IMPOSITION OF SURTAX UPON ITS
STOCKHOLDERS, THROUGH THE MEDIUM OF ACCUMULATION OF ITS PROFITS, IS
WITHOUT SUBSTANTIAL SUPPORT. 

THE JUDGMENT IS REVERSED. 

FN1  41 B.T.A. 590. 

FN2  129 F.2D 937. 

FN3  45 STAT. 814-15, 47 STAT. 195. 

FN4  HE PLACED SOME OF THE STOCK IN TRUST, RETAINING VOTING CONTROL. 

FN5  INCLUDING SOME $2,000,000 OF IMPOUNDED CHARGES NOT RELEASED TO
TRANSIT COMPANY UNTIL 1932 AND A WORKING FUND CLAIMED BY RESPONDENT TO
REQUIRE $5,000,000. 

FN6  THIS ITEM INCLUDED ADDITIONAL CASH ON HAND OF
$2,755,931($1,800,000 OF WHICH WAS A SUBORDINATED DEPOSIT IN A STOCK
YARDS BANK), LOANS TO SUBSIDIARIES AND TO MR. PRINCE, PURCHASES OF
COMMON AND PREFERRED STOCK OF THE NEW JERSEY COMPANY AND OF
RESPONDENT'S OWN BONDS, AND OTHER INVESTMENTS, AND AN INVESTMENT OF
$3,573,218 IN SECURITIES OF STOCK-YARDS BANKS WHICH NEEDED FINANCIAL
SUPPORT.  SIMILAR SUBORDINATIONS OF DEPOSITS AND BANK INVESTMENTS WERE
MADE BY SUBSIDIARIES. 

FN7  ACT OF OCT. 3, 1913, CH. 16, 38 STAT. 114, 166-167; REVENUE ACT
OF 1918, CH. 18, 40 STAT. 1057, 1072. 

FN8  REVENUE ACT OF 1921, CH. 136, 42 STAT. 227, 247-248; REVENUE ACT
OF 1924, CH. 234, 43 STAT. 253, 277; REVENUE ACT OF 1928, CH. 852, 45
STAT. 791, 814-15; REVENUE ACT OF 1932, CH. 209, 47 STAT. 169, 195.  IN
LATER REVENUE ACTS, A DIFFERENT METHOD OF ACCOMPLISHING THE PURPOSE HAS
BEEN ADOPTED. 

FN9  THE NET WORTH WAS PROBABLY SOME $3,000,000 IN EXCESS OF THE
AMOUNT NAMED IF THE ACTUAL NET WORTH OF SUBSIDIARIES IS TAKEN INTO
ACCOUNT. 

FN10  WHEN THE PLAN AND AGREEMENT WITH RESPECT TO NEW JERSEY
COMPANY'S COMMON STOCK WAS IN SHAPE TO BE CONSUMMATED, THE RESPONDENT
PURCHASED THE PLAN AND THE RIGHTS ARISING UNDER IT FOR $1,000,000(ITS
CASH CAPITAL), AND $7,000,000 PAR VALUE OF ITS OWN STOCK ARISING OUT OF
AN INCREASE OF ITS AUTHORIZED STOCK FROM $1,000,000 TO $8,000,000. 

FN11  THE RESPONDENT HAS PAID SUBSTANTIAL ANNUAL DIVIDENDS, THE
HIGHEST BEING AT THE RATE OF $400,000 PER YEAR DURING THE TAXABLE YEARS
IN QUESTION; AND MR. PRINCE HAS ALSO RECEIVED SUBSTANTIAL SALARIES FROM
THE RESPONDENT AND OTHER CORPORATIONS WHICH WERE CONDUCTING ACTIVITIES
OF THE ENTERPRISE. 

FN12  MOST OF RESPONDENT'S INCOME CONSISTED OF DIVIDENDS RECEIVED
FROM DOMESTIC CORPORATIONS, WHICH WERE DEDUCTIBLE FROM ITS GROSS INCOME
FOR TAX PURPOSES. 
..END :






















EX PARTE PERU, 318 U.S. 578 


NO. 13, ORIGINAL.  ARGUED MARCH 1, 1943.  - DECIDED APRIL 5, 1943.  -
LEAVE TO FILE GRANTED. 


1.  THIS COURT HAS POWER, UNDER 28 U.S.C. SECS. 342, 377, TO ISSUE A
WRIT OF PROHIBITION OR MANDAMUS TO RESTRAIN THE DISTRICT COURT FROM
EXERCISE OF FURTHER JURISDICTION IN REM, IN AN ADMIRALTY SUIT, ALTHOUGH
THE CASE BE ONE IN WHICH DIRECT APPELLATE JURISDICTION IS VESTED IN THE
CIRCUIT COURT OF APPEALS, THIS COURT HAVING ULTIMATE DISCRETIONARY
JURISDICTION BY CERTIORARI; BUT SUCH POWER WILL BE EXERCISED ONLY WHERE
THE QUESTION IS OF PUBLIC IMPORTANCE OR IS OF SUCH NATURE THAT THE
EXERCISE OF SUCH POWER IS PECULIARLY APPROPRIATE.  EX PARTE UNITED
STATES, 287 U.S. 241.  PP. 582, 586. 

2.  A CASE OF THAT CHARACTER IS PRESENTED BY THE CLAIM OF A FRIENDLY
FOREIGN STATE THAT ITS VESSEL, SEIZED BY THE DISTRICT COURT UNDER A
LIBEL IN REM IN A PRIVATE LITIGATION, SHOULD BE RELEASED AS IMMUNE FROM
SUIT, WHICH CLAIM OF IMMUNITY HAD BEEN RECOGNIZED BY THE DEPARTMENT OF
STATE, WHOSE ACTION HAS BEEN CERTIFIED TO THE DISTRICT COURT.  P. 586. 

3.  IN A SUIT IN REM IN ADMIRALTY BY A PRIVATE LIBELANT FOR BREACH OF
A CHARTER PARTY, THE DISTRICT COURT ACQUIRED JURISDICTION IN REM BY
SEIZURE AND CONTROL OF A VESSEL OWNED BY THE REPUBLIC OF PERU.  THE
REPUBLIC MOVED FOR RELEASE OF THE VESSEL UPON THE GROUND OF SOVEREIGN
IMMUNITY FROM SUIT AND THERE WAS PRESENTED TO THE COURT BY THE ATTORNEY
GENERAL A CERTIFICATION SHOWING THAT SUCH IMMUNITY HAD BEEN RECOGNIZED
AND ALLOWED BY THE STATE DEPARTMENT.  HELD THAT IT WAS THE DUTY OF THE
COURT TO SURRENDER THE VESSEL AND REMIT THE LIBELANT TO THE RELIEF
OBTAINABLE BY DIPLOMATIC NEGOTIATIONS P. 587. 

4.  THE REPUBLIC OF PERU DID NOT WAIVE ITS CLAIM OF IMMUNITY BY
URGING IT BOTH BEFORE THE DEPARTMENT OF STATE AND THE COURT OR BY
RESERVING THE RIGHT TO INTERPOSE OTHER DEFENSES.  P. 589. 

EX PARTE REPUBLIC OF PERU. 

ON MOTION FOR LEAVE TO FILE PETITION FOR A WRIT OF PROHIBITION AND/OR
A WRIT OF MANDAMUS. 

ON MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF PROHIBITION
AND/OR MANDAMUS TO PROHIBIT THE DISTRICT COURT FROM FURTHER EXERCISE OF
JURISDICTION OVER A PROCEEDING IN REM IN WHICH A VESSEL WAS SEIZED, AND
TO DIRECT THE DISTRICT JUDGE TO ENTER AN ORDER DECLARING THE VESSEL
IMMUNE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A MOTION FOR LEAVE TO FILE IN THIS COURT THE PETITION OF THE
REPUBLIC OF PERU FOR A WRIT OF PROHIBITION OR OF MANDAMUS.  THE
PETITION ASKS THIS COURT TO PROHIBIT RESPONDENT, A JUDGE OF THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, AND THE OTHER
JUDGES AND OFFICERS OF THAT COURT, FROM FURTHER EXERCISE OF
JURISDICTION OVER A PROCEEDING IN REM, PENDING IN THAT COURT AGAINST
PETITIONER'S STEAMSHIP UCAYALI, AND TO DIRECT THE DISTRICT JUDGE TO
ENTER AN ORDER IN THE PROCEEDING DECLARING THE VESSEL IMMUNE FROM
SUIT.  THE QUESTIONS FOR DECISION HERE ARE WHETHER THIS COURT HAS
JURISDICTION TO ISSUE THE WRIT, WHETHER SUCH JURISDICTION SHOULD IN OUR
DISCRETION BE EXERCISED IN PETITIONER'S BEHALF, AND WHETHER
PETITIONER'S APPEARANCE AND DEFENSE OF THE SUIT IN THE DISTRICT COURT
WAS, AS THAT COURT HAS RULED, A WAIVER OF ITS CLAIM THAT THE VESSEL,
BEING THAT OF A FRIENDLY SOVEREIGN STATE, IS IMMUNE FROM SUIT BROUGHT
BY A PRIVATE PARTY IN THE COURT OF THE UNITED STATES. 

ON MARCH 30, 1942, GALBAN LOBO CO., S.A., A CUBAN CORPORATION, FILED
A LIBEL IN THE DISTRICT COURT AGAINST THE UCAYALI FOR ITS FAILURE TO
CARRY A CARGO OF SUGAR FROM A PERUVIAN PORT TO NEW YORK, AS REQUIRED BY
THE TERMS OF A CHARTER PARTY ENTERED INTO BY LIBELANT WITH A PERUVIAN
CORPORATION ACTING AS AGENT IN BEHALF OF THE PERUVIAN GOVERNMENT.  ON
APRIL 9, 1942, THE REPUBLIC OF PERU, ACTING BY THE MASTER OF THE
VESSEL, INTERVENED IN THE DISTRICT COURT BY FILING A CLAIM TO THE
VESSEL, AVERRING THAT THE REPUBLIC OF PERU WAS SOLE OWNER, AND STATING:
"THE FILING OF THIS CLAIM IS NOT A GENERAL APPEARANCE AND IS WITHOUT
PREJUDICE TO OR WAIVER OF ALL DEFENSES AND OBJECTIONS WHICH MAY BE
AVAILABLE TO RESPONDENT AND CLAIMANT, PARTICULARLY, BUT NOT
EXCLUSIVELY, SOVEREIGN IMMUNITY." 

ON THE SAME DAY, PETITIONER PROCURED THE RELEASE OF THE VESSEL BY
FILING A SURETY RELEASE BOND IN THE SUM OF $60,000, ON WHICH PETITIONER
WAS PRINCIPAL.  THE BOND, WHICH CONTAINED A RESERVATION IDENTICAL WITH
THAT APPEARING IN PETITIONER'S CLAIM TO THE VESSEL, WAS CONDITIONED
UPON PAYMENT OF ANY AMOUNT AWARDED TO LIBELANT BY THE FINAL DECREE IN
THE CAUSE.  ON APRIL 11TH PETITIONER PROCEEDED IN THE CAUSE TO TAKE THE
TESTIMONY OF THE MASTER ON THE MERITS, AND SPREAD ON THE RECORD A
STATEMENT THAT THE TESTIMONY WAS TAKEN WITH LIKE "FULL RESERVATION AND
WITHOUT WAIVER OF ALL DEFENSES AND OBJECTIONS WHICH MAY BE AVAILABLE TO
RESPONDENT AND CLAIMANT, PARTICULARLY, BUT NOT EXCLUSIVELY, SOVEREIGN
IMMUNITY."  PETITIONER ALSO STATED THAT "THE APPEARANCE OF COUNSEL FOR
THE GOVERNMENT OF PERU AND THE STEAMSHIP UCAYALI IS FOR THE SPECIAL
PURPOSE ONLY OF TAKING THE TESTIMONY OF THE MASTER UNDER THE
RESERVATION AFORESAID." 

ON APRIL 18TH, AND AGAIN ON MAY 10TH AND ON MAY 29TH, PETITIONER
MOVED FOR AND OBTAINED AN ORDER OF THE DISTRICT COURT EXTENDING ITS
TIME WITHIN WHICH TO ANSWER OR OTHERWISE PLEAD TO THE LIBEL.  EACH
MOTION WAS MADE "WITH FULL RESERVATION AND WITHOUT WAIVER OF ANY
DEFENSES AND OBJECTIONS WHICH MAY BE AVAILABLE TO MOVER, PARTICULARLY,
BUT NOT EXCLUSIVELY, SOVEREIGN IMMUNITY." 

IN THE MEANTIME, PETITIONER, FOLLOWING THE ACCEPTED COURSE OF
PROCEDURE (SEE EX PARTE MUIR, 254 U.S. 522; COMPANIA ESPANOLA V. THE
NAVEMAR, 303 U.S. 68), BY APPROPRIATE REPRESENTATIONS, SOUGHT
RECOGNITION BY THE STATE DEPARTMENT OF PETITIONER'S CLAIM OF IMMUNITY,
AND ASKED THAT THE DEPARTMENT ADVISE THE ATTORNEY GENERAL OF THE CLAIM
OF IMMUNITY AND THAT THE ATTORNEY GENERAL INSTRUCT THE UNITED STATES
ATTORNEY FOR THE EASTERN DISTRICT OF LOUISIANA TO FILE IN THE DISTRICT
COURT THE APPROPRIATE SUGGESTION OF IMMUNITY OF THE VESSEL FROM SUIT. 
THESE NEGOTIATIONS RESULTED IN FORMAL RECOGNITION BY THE STATE
DEPARTMENT OF THE CLAIM OF IMMUNITY.  THIS WAS COMMUNICATED TO THE
ATTORNEY GENERAL BY THE UNDER SECRETARY'S LETTER OF MAY 5, 1942.  THE
LETTER REQUESTED HIM TO INSTRUCT THE UNITED STATES ATTORNEY TO PRESENT
TO THE DISTRICT COURT A COPY OF THE AMBASSADOR'S FORMAL CLAIM OF
IMMUNITY FILED WITH THE STATE DEPARTMENT, AND TO SAY THAT "THIS
DEPARTMENT ACCEPTS AS TRUE THE STATEMENTS OF THE AMBASSADOR CONCERNING
THE STEAMSHIP UCAYALI, AND RECOGNIZES AND ALLOWS THE CLAIM OF
IMMUNITY." 

PURSUANT TO THESE INSTRUCTIONS THE UNITED STATES ATTORNEY, ON JUNE
29TH, FILED IN THE DISTRICT COURT A FORMAL STATEMENT ADVISING THE COURT
OF THE PROCEEDINGS AND COMMUNICATIONS MENTIONED, SUGGESTING TO THE
COURT AND PRAYING "THAT THE CLAIM OF IMMUNITY MADE ON BEHALF OF THE
SAID PERUVIAN STEAMSHIP UCAYALI AND RECOGNIZED AND ALLOWED BY THE STATE
DEPARTMENT BE GIVEN FULL FORCE AND EFFECT BY THIS COURT"; AND "THAT THE
SAID VESSEL PROCEEDED AGAINST HEREIN BE DECLARED IMMUNE FROM THE
JURISDICTION AND PROCESS OF THIS COURT."  ON JULY 1ST, PETITIONER MOVED
FOR RELEASE OF THE VESSEL AND THAT THE SUIT BE DISMISSED.  THE DISTRICT
COURT DENIED THE MOTION ON THE GROUND THAT PETITIONER HAD WAIVED ITS
IMMUNITY BY APPLYING FOR EXTENSIONS OF TIME WITHIN WHICH TO ANSWER, AND
BY TAKING THE DEPOSITION OF THE MASTER - STEPS WHICH THE DISTRICT COURT
THOUGHT CONSTITUTED A GENERAL APPEARANCE DESPITE PETITIONER'S ATTEMPTED
RESERVATION OF ITS RIGHT TO ASSERT ITS IMMUNITY AS A DEFENSE IN THE
SUIT.  47 F.SUPP.  203. 

THE FIRST QUESTION FOR OUR CONSIDERATION IS THAT OF OUR
JURISDICTION.  SECTION 13 OF THE JUDICIARY ACT OF 1789, 1 STAT. 81,
CONFERRED UPON THIS COURT "POWER TO ISSUE WRITS OF PROHIBITION TO THE
DISTRICT COURTS, WHEN PROCEEDING AS COURTS OF ADMIRALTY AND MARITIME
JURISDICTION, AND WRITS OF MANDAMUS, IN CASES WARRANTED BY THE
PRINCIPLES AND USAGES OF LAW, TO ANY COURTS APPOINTED, OR PERSONS
HOLDING OFFICE, UNDER THE AUTHORITY OF THE UNITED STATES."  AND SEC. 14
PROVIDED THAT THIS COURT AND OTHER FEDERAL COURTS "SHALL HAVE POWER TO
ISSUE WRITS OF SCIRE FACIAS, HABEAS CORPUS, AND ALL OTHER WRITS NOT
SPECIALLY PROVIDED FOR BY STATUTE, WHICH MAY BE NECESSARY FOR THE
EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND AGREEABLE TO THE
PRINCIPLES AND USAGES OF LAW."  1 STAT. 81.  THESE PROVISIONS HAVE IN
SUBSTANCE BEEN CARRIED OVER INTO SECS. 234 AND 262 OF THE JUDICIAL CODE
(28 U.S.C. SECS. 342, 377), AND SEC. 751 OF THE REVISED STATUTES (28
U.S.C. SEC. 451). 

THE JURISDICTION OF THIS COURT AS DEFINED IN ARTICLE III, SEC. 2, OF
THE CONSTITUTION IS EITHER "ORIGINAL" OR "APPELLATE."  SUITS BROUGHT IN
THE DISTRICT COURTS OF THE UNITED STATES, NOT OF SUCH CHARACTER AS TO
BE WITHIN THE ORIGINAL JURISDICTION OF THIS COURT UNDER THE
CONSTITUTION, ARE COGNIZABLE BY IT ONLY IN THE EXERCISE OF ITS
APPELLATE JURISDICTION.  HENCE, ITS STATUTORY AUTHORITY TO ISSUE WRITS
OF PROHIBITION OR MANDAMUS TO DISTRICT COURTS CAN BE CONSTITUTIONALLY
EXERCISED ONLY INSOFAR AS SUCH WRITS ARE IN AID OF ITS APPELLATE
JURISDICTION.  MARBURY V. MADISON, 1 CRANCH 137, 173-80; EX PARTE
SIEBOLD, 100 U.S. 371, 374-75. 

UNDER THE STATUTORY PROVISIONS, THE JURISDICTION OF THIS COURT TO
ISSUE COMMON-LAW WRITS IN AID OF ITS APPELLATE JURISDICTION HAS BEEN
CONSISTENTLY SUSTAINED.  THE HISTORIC USE OF WRITS OF PROHIBITION AND
MANDAMUS DIRECTED BY AN APPELLATE TO AN INFERIOR COURT HAS BEEN TO
EXERT THE REVISORY APPELLATE POWER OVER THE INFERIOR COURT.  THE WRITS
THUS AFFORD AN EXPEDITIOUS AND EFFECTIVE MEANS OF CONFINING THE
INFERIOR COURT TO A LAWFUL EXERCISE OF ITS PRESCRIBED JURISDICTION, OR
OF COMPELLING IT TO EXERCISE ITS AUTHORITY WHEN IT IS ITS DUTY TO DO
SO.  SUCH HAS BEEN THE OFFICE OF THE WRITS WHEN DIRECTED BY THIS COURT
TO DISTRICT COURTS, BOTH BEFORE THE JUDICIARY ACT OF 1925, 43 STAT.
936,  FN1  AND SINCE.  FN2  IN ALL THESE CASES (CITED IN NOTES 1 AND
2), THE APPELLATE, NOT THE ORIGINAL, JURISDICTION OF THIS COURT WAS
INVOKED AND EXERCISED.  FN3 

THE COMMON LAW WRITS, LIKE EQUITABLE REMEDIES, MAY BE GRANTED OR
WITHHELD IN THE SOUND DISCRETION OF THE COURT, EX PARTE SKINNER & EDDY
CORP., 265 U.S. 86, 95-96; EX PARTE CITY OF MONTEREY, 269 U.S. 527;
MARYLAND V. SOPER (NO. 1), 270 U.S. 9, 29; UNITED STATES V. DERN, 289
U.S. 352, 359, AND ARE USUALLY DENIED WHERE OTHER ADEQUATE REMEDY IS
AVAILABLE.  EX PARTE BALDWIN, 291 U.S. 610.  AND EVER SINCE THE STATUTE
VESTED IN THE CIRCUIT COURTS OF APPEALS APPELLATE JURISDICTION ON
DIRECT APPEAL FROM THE DISTRICT COURTS, THIS COURT, IN THE EXERCISE OF
ITS DISCRETION, HAS IN APPROPRIATE CIRCUMSTANCES DECLINED TO ISSUE THE
WRIT TO A DISTRICT COURT, BUT WITHOUT PREJUDICE TO AN APPLICATION TO
THE CIRCUIT COURT OF APPEALS (EX PARTE APEX MFG. CO., 274 U.S. 725; EX
PARTE DAUGHERTY, 282 U.S. 809; EX PARTE KRENTLER-ARNOLD HINGE LAST CO.,
286 U.S. 533), WHICH LIKEWISE HAS POWER UNDER SEC. 262 OF THE JUDICIAL
CODE TO ISSUE THE WRIT.  MCCLELLAN V. CARLAND, 217 U.S. 268; ADAMS V.
U.S. EX REL. MCCANN, 317 U.S. 269. 

AFTER A FULL REVIEW OF THE TRADITIONAL USE OF THE COMMONLAW WRITS BY
THIS COURT, AND IN ISSUING A WRIT OF MANDAMUS, IN AID OF ITS APPELLATE
JURISDICTION, TO COMPEL A DISTRICT JUDGE TO ISSUE A BENCH WARRANT IN
CONFORMITY TO STATUTORY REQUIREMENTS, THIS COURT DECLARED IN EX PARTE
UNITED STATES, 287 U.S. 241, 248-49:  "THE RULE DEDUCIBLE FROM THE
LATER DECISIONS, AND WHICH WE NOW AFFIRM, IS, THAT THIS COURT HAS FULL
POWER IN ITS DISCRETION TO ISSUE THE WRIT OF MANDAMUS TO A FEDERAL
DISTRICT COURT, ALTHOUGH THE CASE BE ONE IN RESPECT OF WHICH DIRECT
APPELLATE JURISDICTION IS VESTED IN THE CIRCUIT COURT OF APPEALS - THIS
COURT HAVING ULTIMATE DISCRETIONARY JURISDICTION BY CERTIORARI - BUT
THAT SUCH POWER WILL BE EXERCISED ONLY WHERE A QUESTION OF PUBLIC
IMPORTANCE IS INVOLVED, OR WHERE THE QUESTION IS OF SUCH A NATURE THAT
IT IS PECULIARLY APPROPRIATE THAT SUCH ACTION BY THIS COURT SHOULD BE
TAKEN.  IN OTHER WORDS, APPLICATION FOR THE WRIT ORDINARILY MUST BE
MADE TO THE INTERMEDIATE APPELLATE COURT, AND MADE TO THIS COURT AS THE
COURT OF ULTIMATE REVIEW ONLY IN SUCH EXCEPTIONAL CASES."  FN4 

WE CONCLUDE THAT WE HAVE JURISDICTION TO ISSUE THE WRIT AS PRAYED. 
AND WE THINK THAT - UNLESS THE SOVEREIGN IMMUNITY HAS BEEN WAIVED - THE
CASE IS ONE OF SUCH PUBLIC IMPORTANCE AND EXCEPTIONAL CHARACTER AS TO
CALL FOR THE EXERCISE OF OUR DISCRETION TO ISSUE THE WRIT RATHER THAN
TO RELEGATE THE REPUBLIC OF PERU TO THE CIRCUIT COURT OF APPEALS, FROM
WHICH IT MIGHT BE NECESSARY TO BRING THE CASE TO THIS COURT AGAIN BY
CERTIORARI.  THE CASE INVOLVES THE DIGNITY AND RIGHTS OF A FRIENDLY
SOVEREIGN STATE, CLAIMS AGAINST WHICH ARE NORMALLY PRESENTED AND
SETTLED IN THE COURSE OF THE CONDUCT OF FOREIGN AFFAIRS BY THE
PRESIDENT AND BY THE DEPARTMENT OF STATE.  WHEN THE SECRETARY ELECTS,
AS HE MAY AND AS HE APPEARS TO HAVE DONE IN THIS CASE, TO SETTLE CLAIMS
AGAINST THE VESSEL BY DIPLOMATIC NEGOTIATIONS BETWEEN THE TWO COUNTRIES
RATHER THAN BY CONTINUED LITIGATION IN THE COURTS, IT IS OF PUBLIC
IMPORTANCE THAT THE ACTION OF THE POLITICAL ARM OF THE GOVERNMENT TAKEN
WITHIN ITS APPROPRIATE SPHERE BE PROMPTLY RECOGNIZED, AND THAT THE
DELAY AND INCONVENIENCE OF A PROLONGED LITIGATION BE AVOIDED BY PROMPT
TERMINATION OF THE PROCEEDINGS IN THE DISTRICT COURT.  IF THE REPUBLIC
OF PERU HAS NOT WAIVED ITS IMMUNITY, WE THINK THAT THERE ARE PERSUASIVE
GROUNDS FOR EXERCISING OUR JURISDICTION TO ISSUE THE WRIT IN THIS CASE
AND AT THIS TIME WITHOUT REQUIRING PETITIONER TO APPLY TO THE CIRCUIT
COURT OF APPEALS, AND THAT THOSE GROUNDS ARE AT LEAST AS STRONG AND
URGENT AS THOSE FOUND SUFFICIENT IN EX PARTE UNITED STATES, IN MARYLAND
V. SOPER, IN COLORADO V. SYMES, AND IN MCCULLOUGH V. COSGRAVE, ALL
SUPRA, NOTE 2.  WE ACCORDINGLY PASS TO THE QUESTION WHETHER PETITIONER
HAS WAIVED HIS IMMUNITY. 

THIS CASE PRESENTS NO QUESTION OF THE JURISDICTION OF THE DISTRICT
COURT OVER THE PERSON OF A DEFENDANT.  SUCH JURISDICTION MUST BE
ACQUIRED EITHER BY THE SERVICE OF PROCESS OR BY THE DEFENDANT'S
APPEARANCE OR PARTICIPATION IN THE LITIGATION.  HERE THE DISTRICT COURT
ACQUIRED JURISDICTION IN REM BY THE SEIZURE AND CONTROL OF THE VESSEL,
AND THE LIBELANT'S CLAIM AGAINST THE VESSEL CONSTITUTED A CASE OR
CONTROVERSY WHICH THE COURT HAD AUTHORITY TO DECIDE.  INDEED, FOR THE
PURPOSE OF DETERMINING WHETHER PETITIONER WAS ENTITLED TO THE CLAIMED
IMMUNITY, THE DISTRICT COURT, IN THE ABSENCE OF RECOGNITION OF THE
IMMUNITY BY THE DEPARTMENT OF STATE, HAD AUTHORITY TO DECIDE FOR ITSELF
WHETHER ALL THE REQUISITES FOR SUCH IMMUNITY EXISTED - WHETHER THE
VESSEL WHEN SEIZED WAS PETITIONER'S, AND WAS OF A CHARACTER ENTITLING
IT TO THE IMMUNITY.  SEE EX PARTE MUIR, SUPRA; THE PESARO, 255 U.S.
216; BERIZZI BROS. CO. V. THE PESARO, 271 U.S. 562; COMPANIA ESPANOLA
V. THE NAVEMAR, SUPRA.  THEREFORE THE QUESTION WHICH WE MUST DECIDE IS
NOT WHETHER THERE WAS JURISDICTION IN THE DISTRICT COURT, ACQUIRED BY
THE APPEARANCE OF PETITIONER, BUT WHETHER THE JURISDICTION WHICH THE
COURT HAD ALREADY ACQUIRED BY SEIZURE OF THE VESSEL SHOULD HAVE BEEN
RELINQUISHED IN CONFORMITY TO AN OVERRIDING PRINCIPLE OF SUBSTANTIVE
LAW.    THAT PRINCIPLE IS THAT COURTS MAY NOT SO EXERCISE THEIR
JURISDICTION, BY THE SEIZURE AND DETENTION OF THE PROPERTY OF A
FRIENDLY SOVEREIGN, AS TO EMBARRASS THE EXECUTIVE ARM OF THE GOVERNMENT
IN CONDUCTING FOREIGN RELATIONS.  "IN SUCH CASES THE JUDICIAL
DEPARTMENT OF THIS GOVERNMENT FOLLOWS THE ACTION OF THE POLITICAL
BRANCH, AND WILL NOT EMBARRASS THE LATTER BY ASSUMING AN ANTAGONISTIC
JURISDICTION."  UNITED STATES V. LEE, 106 U.S. 196, 209.  MORE
SPECIFICALLY, THE JUDICIAL SEIZURE OF THE VESSEL OF A FRIENDLY FOREIGN
STATE IS SO SERIOUS A CHALLENGE TO ITS DIGNITY, AND MAY SO AFFECT OUR
FRIENDLY RELATIONS WITH IT, THAT COURTS ARE REQUIRED TO ACCEPT AND
FOLLOW THE EXECUTIVE DETERMINATION THAT THE VESSEL IS IMMUNE.  WHEN
SUCH A SEIZURE OCCURS THE FRIENDLY FOREIGN SOVEREIGN MAY PRESENT ITS
CLAIM OF IMMUNITY BY APPEARANCE IN THE SUIT AND BY WAY OF DEFENSE TO
THE LIBEL.  COMPANIA ESPANOLA V. THE NAVEMAR, SUPRA, 74 AND CASES
CITED; EX PARTE MUIR, SUPRA.  BUT IT MAY ALSO PRESENT ITS CLAIM TO THE
DEPARTMENT OF STATE, THE POLITICAL ARM OF THE GOVERNMENT CHARGED WITH
THE CONDUCT OF OUR FOREIGN AFFAIRS.  UPON RECOGNITION AND ALLOWANCE OF
THE CLAIM BY THE STATE DEPARTMENT AND CERTIFICATION OF ITS ACTION
PRESENTED TO THE COURT BY THE ATTORNEY GENERAL, IT IS THE COURT'S DUTY
TO SURRENDER THE VESSEL AND REMIT THE LIBELANT TO THE RELIEF OBTAINABLE
THROUGH DIPLOMATIC NEGOTIATIONS.  COMPANIA ESPANOLA V. THE NAVEMAR,
SUPRA, 74; THE EXCHANGE, 7 CRANCH 116.  THIS PRACTICE IS FOUNDED UPON
THE POLICY, RECOGNIZED BOTH BY THE DEPARTMENT OF STATE AND THE COURTS,
THAT OUR NATIONAL INTEREST WILL BE BETTER SERVED IN SUCH CASES IF THE
WRONGS TO SUITORS, INVOLVING OUR RELATIONS WITH A FRIENDLY FOREIGN
POWER, ARE RIGHTED THROUGH DIPLOMATIC NEGOTIATIONS RATHER THAN BY THE
COMPULSIONS OF JUDICIAL PROCEEDINGS. 

WE CANNOT SAY THAT THE REPUBLIC OF PERU HAS WAIVED ITS IMMUNITY.  IT
HAS CONSISTENTLY DECLARED ITS RELIANCE ON THE IMMUNITY, BOTH BEFORE THE
DEPARTMENT AND IN THE DISTRICT COURT.  NEITHER METHOD OF ASSERTING THE
IMMUNITY IS INCOMPATIBLE WITH THE OTHER.  NOR, IN VIEW OF THE PURPOSE
TO BE ACHIEVED BY PERMITTING THE IMMUNITY TO BE ASSERTED, ARE WE ABLE
TO PERCEIVE ANY GROUND FOR SAYING THAT THE DISTRICT COURT SHOULD
DISREGARD THE CLAIM OF IMMUNITY, WHICH A FRIENDLY SOVEREIGN IS
AUTHORIZED TO ADVANCE BY WAY OF DEFENSE IN THE PENDING SUIT, MERELY
BECAUSE THE SOVEREIGN HAS SEEN FIT TO PRESERVE ITS RIGHT TO INTERPOSE
OTHER DEFENSES.  THE EVIL CONSEQUENCES WHICH MIGHT FOLLOW THE SEIZURE
OF THE VESSEL ARE NOT ANY THE LESS BECAUSE THE FRIENDLY STATE ASSERTS
OTHER GROUNDS FOR THE VESSEL'S RELEASE. 

HERE THE STATE DEPARTMENT HAS NOT LEFT THE REPUBLIC OF PERU TO
INTERVENE IN THE LITIGATION THROUGH ITS AMBASSADOR AS IN THE CASE OF
COMPANIA ESPANOLA V. THE NAVEMAR.  THE DEPARTMENT HAS ALLOWED THE CLAIM
OF IMMUNITY AND CAUSED ITS ACTION TO BE CERTIFIED TO THE DISTRICT COURT
THROUGH THE APPROPRIATE CHANNELS.  THE CERTIFICATION AND THE REQUEST
THAT THE VESSEL BE DECLARED IMMUNE MUST BE ACCEPTED BY THE COURTS AS A
CONCLUSIVE DETERMINATION BY THE POLITICAL ARM OF THE GOVERNMENT THAT
THE CONTINUED RETENTION OF THE VESSEL INTERFERES WITH THE PROPER
CONDUCT OF OUR FOREIGN RELATIONS.  UPON THE SUBMISSION OF THIS
CERTIFICATION TO THE DISTRICT COURT, IT BECAME THE COURT'S DUTY, IN
CONFORMITY TO ESTABLISHED PRINCIPLES, TO RELEASE THE VESSEL AND TO
PROCEED NO FURTHER IN THE CAUSE.  WE HAVE NO OCCASION TO DECIDE WHETHER
THE COURT SHOULD SURRENDER THE VESSEL AND DISMISS THE SUIT ON
CERTIFICATION OF SOVEREIGN IMMUNITY BY THE SECRETARY, MADE AFTER THE
FRIENDLY SOVEREIGN HAS ONCE UNQUALIFIEDLY ASSENTED TO A JUDICIAL
DETERMINATION OF THE CONTROVERSY. 

THE MOTION FOR LEAVE TO FILE IS GRANTED.  WE ASSUME THAT, IN VIEW OF
THIS OPINION, FORMAL ISSUANCE OF THE WRIT WILL BE UNNECESSARY, AND WE
DIRECT THAT THE WRIT ISSUE ONLY ON FURTHER APPLICATION BY THE
PETITIONER. 

FN1  E.G., EX PARTE STATE OF NEW YORK, NO. 1, 256 U.S. 490; THE
WESTERN MAID, 257 U.S. 419; EX PARTE SIMONS, 247 U.S. 231; EX PARTE
PETERSON, 253 U.S. 300, 305; EX PARTE HUDGINGS, 249 U.S. 378; EX PARTE
UPPERCU, 239 U.S. 435; MATTER OF HEFF, 197 U.S. 488; EX PARTE SIEBOLD,
100 U.S. 371; EX PARTE WATKINS, 3 PET. 193; UNITED STATES V. PETERS, 3
DALL.  121. 

FN2  EX PARTE UNITED STATES, 287 U.S. 241; MARYLAND V. SOPER (NO. 1),
270 U.S. 9, 27-28; MARYLAND V. SOPER (NO. 2), 270 U.S. 36; MARYLAND V.
SOPER (NO. 3), 270 U.S. 44; COLORADO V. SYMES, 286 U.S. 510; MCCULLOUGH
V. COSGRAVE, 309 U.S. 634; EX PARTE KAWATO, 317 U.S. 69; SEE LOS
ANGELES BRUSH CORP. V. JAMES, 272 U.S. 701. 

FN3  SEE PARTICULARLY THE DISCUSSION IN MARYLAND V. SOPER (NO. 1),
270 U.S. 9, 28-30, AND IN EX PARTE UNITED STATES, 287 U.S. 241. 
COMPARE EX PARTE SIEBOLD, 100 U.S. 371. 

EX PARTE UNITED STATES, SUPRA, WAS NOT AND COULD NOT HAVE BEEN A CASE
OF ORIGINAL JURISDICTION.  THE CONSTITUTION CONFERS ORIGINAL
JURISDICTION ONLY IN CASES AFFECTING AMBASSADORS, OTHER PUBLIC
MINISTERS AND CONSULS, AND "THOSE IN WHICH A STATE SHALL BE PARTY"
(ART. III, SEC. 2, CL. 2).  NO STATE WAS MADE A PARTY TO EX PARTE
UNITED STATES.  THE UNITED STATES HAS NEVER BEEN HELD TO BE A "STATE"
WITHIN THIS PROVISION - AND IT OBVIOUSLY IS NOT - NOR HAS IT ANY
STANDING TO BRING AN ORIGINAL ACTION IN THIS COURT WHICH DOES NOT
OTHERWISE COME WITHIN ONE OF THE PROVISIONS OF ARTICLE III, SEC. 2, CL.
2.  UNITED STATES V. TEXAS, 143 U.S. 621, RELIED UPON TO SUSTAIN A
DIFFERENT VIEW, WAS WITHIN THE ORIGINAL JURISDICTION BECAUSE THE STATE
OF TEXAS WAS THE PARTY DEFENDANT.  AND UNTIL NOW IT HAS NEVER BEEN
SUGGESTED THAT NECESSITY, HOWEVER GREAT, WARRANTS THE EXERCISE BY THIS
COURT OF ORIGINAL JURISDICTION WHICH THE CONSTITUTION HAS NOT CONFERRED
UPON IT. MOREOVER, EVEN IF CONGRESS HAD WITHDRAWN THIS COURT'S
APPELLATE JURISDICTION BY THE 1925 ACT, THERE WOULD HAVE BEEN NO
NECESSITY IN EX PARTE UNITED STATES FOR INVENTING AN ORIGINAL
JURISDICTION WHICH THE CONSTITUTION HAD WITHHELD, SINCE A WRIT OF
MANDAMUS COULD HAVE BEEN APPLIED FOR IN THE CIRCUIT COURT OF APPEALS. 

FN4  THE SUGGESTION THAT THE JUDICIARY ACT OF 1925 WAS INTENDED TO
CURTAIL THE JURISDICTION PREVIOUSLY EXERCISED BY THIS COURT IN GRANTING
SUCH WRITS TO THE DISTRICT COURTS FINDS NO SUPPORT IN THE HISTORY OR
LANGUAGE OF THE ACT.  THE ACT WAS ORIGINALLY PREPARED BY A COMMITTEE OF
JUSTICES OF THIS COURT, BY WHOM IT WAS SUBMITTED TO CONGRESS FOR
CONSIDERATION.  FOUR MEMBERS OF THIS COURT GAVE TESTIMONY BEFORE
CONGRESSIONAL COMMITTEES IN EXPLANATION OF THE PURPOSES AND MEANING OF
THE ACT, AND CHIEF JUSTICE TAFT SUBMITTED A DETAILED STATEMENT OF THE
CHANGES WHICH THE ACT WOULD EFFECT.  THESE DISCLOSE THAT THE GREAT
PURPOSE OF THE ACT WAS TO CURTAIL THE COURT'S OBLIGATORY JURISDICTION
BY SUBSTITUTING, FOR THE APPEAL AS OF RIGHT, DISCRETIONARY REVIEW BY
CERTIORARI IN MANY CLASSES OF CASES.  IN ALL THE ORAL AND WRITTEN
SUBMISSIONS BY MEMBERS OF THIS COURT, AND IN THE REPORTS OF THE
COMMITTEES OF CONGRESS WHICH RECOMMENDED ADOPTION OF THE BILL, THERE IS
NOT A SINGLE SUGGESTION THAT THE ACT WOULD WITHDRAW OR LIMIT THE
COURT'S EXISTING JURISDICTION TO DIRECT THE COMMON-LAW WRITS TO THE
DISTRICT COURTS WHEN, IN THE EXERCISE OF ITS DISCRETION, IT DEEMED SUCH
A REMEDY APPROPRIATE.  SEE RESUME, TOGETHER WITH CITATIONS AFFECTING
FOR USE OF SENATE COMMITTEE ON THE JUDICIARY, 67TH CONG., 2D SESS.;
HEARING ON S. 2060 AND S. 2061, BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY, FEB. 2, 1924, 68TH CONG., 1ST SESS.;
HEARING ON H.R. 8206 BEFORE HOUSE COMMITTEE ON THE JUDICIARY, DEC. 18,
1924, 68TH CONG., 2D SESS.; S. REP. NO. 362, 68TH CONG., 1ST SESS.; H.
REP. NO. 1075, 68TH CONG., 2D SESS.  THE CHANGES IN EXISTING LAW
PROPOSED TO BE MADE BY THE ACT WERE SET FORTH WITH PAINSTAKING DETAIL. 
IT IS HARDLY CONCEIVABLE THAT THE JUSTICES OF THIS COURT, FULLY
FAMILIAR WITH ITS PRACTICE, WOULD HAVE LEFT UNEXPRESSED AN INTENTION -
HAD SUCH INTENTION REALLY EXISTED - TO CURTAIL DRASTICALLY A
JURISDICTION WHICH THE COURT HAD EXERCISED UNDER STATUTORY AUTHORITY
FROM THE BEGINNING OF ITS HISTORY.  EX PARTE UNITED STATES, AND MOST OF
THE OTHER CASES CITED IN NOTE 2, SUPRA, WERE DECIDED AT A TIME WHEN
MEMBERS OF THE COURT'S COMMITTEE RESPONSIBLE FOR THE 1925 ACT WERE
STILL MEMBERS OF THE COURT.  THE COURT'S UNANIMOUS CONCURRENCE IN THE
EXISTENCE OF ITS JURISDICTION IN THE CASES SUBSEQUENT TO THE 1925 ACT
ESTABLISHES A PRACTICE (CF. STUART V. LAIRD, 1 CRANCH 299, 309) WHICH
WOULD BE BEYOND EXPLANATION IF THERE HAD BEEN ANY THOUGHT THAT ANY
PROVISION OF THE ACT HAD PLACED SUCH A RESTRICTION ON THE COURT'S
JURISDICTION TO ISSUE THE WRITS. 

NOR CAN IT BE SAID THAT THIS LEGISLATIVE HISTORY GIVES ANY SUPPORT TO
THE SUGGESTION THAT THE FAILURE OF THE 1925 ACT TO CUT OFF THE
JURISDICTION OF THIS COURT TO ISSUE THE COMMON-LAW WRITS TO DISTRICT
COURTS WAS INADVERENT, AND THAT THE ACT SHOULD THEREFORE BE CONSTRUED
AS THOUGH IT HAD DONE WHAT IT FAILED TO DO.  THE JURISDICTION OF THIS
COURT TO ISSUE SUCH WRITS, LIKE ITS JURISDICTION TO GRANT CERTIORARI,
IS DISCRETIONARY.  THE DEFINITE AIM OF THE 1925 ACT WAS TO ENLARGE, NOT
TO DESTROY, THE COURT'S DISCRETIONARY JURISDICTION.  THAT AIM CAN
HARDLY GIVE RISE TO AN INFERENCE OF AN UNEXPRESSED PURPOSE TO AMEND OR
REPEAL THE STATUTES OF THE UNITED STATES CONFERRING JURISDICTION ON THE
COURT TO ISSUE THE WRITS, OR AN INFERENCE THAT SUCH WOULD HAVE BEEN THE
PURPOSE HAD REPEAL BEEN PROPOSED.  THE EXERCISE OF THAT JURISDICTION
HAS PLACED NO UNDUE BURDEN ON THIS COURT.  IT IS SIGNIFICANT THAT,
SINCE 1925, LESS THAN TEN OF THE NUMEROUS APPLICATIONS TO THIS COURT
FOR SUCH WRITS HAVE BEEN GRANTED.  ONLY IN RARE INSTANCES HAS THEIR
DENIAL BEEN THE OCCASION FOR AN OPINION DEALING WITH QUESTIONS OF
PUBLIC IMPORTANCE.  SEE, E.G., LOS ANGELES BRUSH CORP. V. JAMES, 272
U.S. 701; EX PARTE BALDWIN, 291 U.S. 610; EX PARTE COLONNA, 314 U.S.
510; CF. MOONEY V. HOLOHAN, 294 U.S. 103.  AND WHATEVER THE SCOPE OF
THE JURISDICTION OF THIS COURT, IN NO CASE DOES IT DECLINE TO EXAMINE
AN APPLICATION IN ORDER TO DETERMINE WHETHER IT HAS JURISDICTION. 

MR. JUSTICE ROBERTS CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

IF DUE REGARD BE HAD FOR ITS AIMS, THE JUDICIARY ACT OF 1925, 43
STAT. 936, DENIES US, IN MY OPINION, THE POWER TO REVIEW THE ACTION IN
THIS CASE OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA,
EVEN THOUGH SUCH REVIEW IS CAST IN FORM OF A WRIT OF PROHIBITION OR OF
MANDAMUS.  BUT, EVEN ASSUMING WE HAVE DISCRETIONARY POWER TO ISSUE SUCH
WRITS TO A DISTRICT COURT, WE SHOULD IN THE CIRCUMSTANCES OF THIS CASE
ABSTAIN FROM EXERCISING THAT POWER, IN VIEW OF THE ABSENCE OF ANY
SHOWING THAT RELIEF EQUALLY PROMPT AND EFFECTIVE AND CONSONANT WITH THE
NATIONAL INTEREST WAS NOT, AND IS NOT, AVAILABLE IN THE APPROPRIATE
CIRCUIT COURT OF APPEALS. 

THE RANGE OF CASES THAT MAY BE BROUGHT HERE DIRECTLY FROM THE
DISTRICT COURTS AND THE RIGOR WITH WHICH WE LIMIT OUR DISCRETIONARY
JURISDICTION DETERMINE THE CAPACITY OF THIS COURT ADEQUATELY TO
DISCHARGE ITS ESSENTIAL FUNCTIONS.  I SHALL THEREFORE BRIEFLY STATE THE
GROUNDS FOR BELIEVING THAT THIS CASE IS IMPROPERLY HERE, THAT THE RULE
SHOULD BE DISCHARGED, AND THE MOTION FOR LEAVE TO FILE THE PETITION BE
DENIED.  I PUT TO ONE SIDE THE RELATION OF THE PERUVIAN AMBASSADOR TO
THIS LITIGATION.  THIS IS NOT A PROCEEDING FALLING UNDER THE RUBRIC
"CASES AFFECTING AMBASSADORS" AND THEREBY GIVING US ORIGINAL
JURISDICTION.  MY BRETHREN DO NOT SO TREAT IT, AND OUR COMMON STARTING
POINT IS THAT IN TAKING HOLD OF THIS CASE THE COURT IS EXERCISING ITS
APPELLATE JURISDICTION. 

WE ARE ALSO AGREED THAT THIS COURT "CAN EXERCISE NO APPELLATE
JURISDICTION, EXCEPT IN THE CASES, AND IN THE MANNER AND FORM, DEFINED
AND PRESCRIBED BY CONGRESS."  AMERICAN CONSTRUCTION CO. V.
JACKSONVILLE, T. & K.W. RY. CO., 148 U.S. 372, 378.  HAD THIS CASE
ARISEN UNDER THE EVARTS ACT (ACT OF MARCH 3, 1891, 26 STAT. 826),
APPEAL COULD HAVE BEEN TAKEN FROM THE DISTRICT COURT, SINCE ITS
JURISDICTION WAS IN ISSUE, DIRECTLY TO THIS COURT WITHOUT GOING TO THE
CIRCUIT COURT OF APPEALS.  SEE, E.G., WILSON V. REPUBLIC IRON CO., 257
U.S. 92.  AND SINCE THE CASE WOULD HAVE BEEN WITHIN THE IMMEDIATE
APPELLATE JURISDICTION OF THIS COURT, SECS. 13 AND 14 OF THE FIRST
JUDICIARY ACT, 1 STAT. 73, 80-82(NOW 28 U.S.C. SECS. 342, 377, 451),
WOULD HAVE AUTHORIZED THIS COURT TO ISSUE AN APPROPRIATE WRIT TO
PREVENT FRUSTRATION OF ITS APPELLATE POWER, SEE EX PARTE CRANE, 5 PET.
190, OR HAVE ENABLED IT TO ACCELERATE ITS OWN UNDOUBTED REVIEWING
AUTHORITY WHERE, UNDER VERY EXCEPTIONAL CIRCUMSTANCES, ACTUAL AND NOT
UNDEFINED INTERESTS OF JUSTICE SO REQUIRED.  COMPARE IN RE CHETWOOD,
165 U.S. 443; WHITNEY V. DICK, 202 U.S. 132; ADAMS V. U.S. EX REL.
MCCANN, 317 U.S. 269. 

THE POWER TO ISSUE THESE AUXILIARY WRITS IS NOT A QUALIFICATION OR
EVEN A LOOSE CONSTRUCTION OF THE STRICT LIMITS, DEFINED BY THE
CONSTITUTION AND THE CONGRESS, WITHIN WHICH THIS COURT MUST MOVE IN
REVIEWING DECISIONS OF LOWER COURTS.  THERE HAVE BEEN OCCASIONAL, BUT
NOT MANY, DEVIATIONS FROM THE TRUE DOCTRINE IN EMPLOYING THESE
AUXILIARY WRITS AS INCIDENTAL TO THE RIGHT GRANTED BY CONGRESS TO THIS
COURT TO REVIEW LITIGATION, IN AID OF WHICH IT MAY BECOME NECESSARY TO
ISSUE A FACILITATING WRIT.  THE ISSUANCE OF SUCH A WRIT IS, IN EFFECT,
AN ANTICIPATORY REVIEW OF A CASE THAT CAN IN DUE COURSE COME HERE
DIRECTLY.  WHEN THE ACT OF 1891 ESTABLISHED THE INTERMEDIATE COURTS OF
APPEALS AND GAVE TO THEM A CONSIDERABLE PART OF THE APPELLATE
JURISDICTION FORMERLY EXERCISED BY THE SUPREME COURT, THE PHILOSOPHY
AND PRACTICE OF FEDERAL APPELLATE JURISDICTION CAME UNDER CAREFUL
SCRUTINY.  THIS COURT UNIFORMLY AND WITHOUT DISSENT HELD THAT IT WAS
WITHOUT POWER TO ISSUE A WRIT OF MANDAMUS IN A CASE IN WHICH IT DID NOT
OTHERWISE HAVE APPELLATE JURISDICTION.  IN RE MASSACHUSETTS, 197 U.S.
482, AND IN RE GLASER, 198 U.S. 171.  IN THESE CASES, RULES WERE
DISCHARGED BECAUSE, UNDER THE CIRCUIT COURTS OF APPEALS ACT, APPEALS
COULD NOT BE BROUGHT DIRECTLY TO THE SUPREME COURT BUT WOULD HAVE TO GO
TO THE CIRCUIT COURT OF APPEALS, AND ONLY THEREAFTER COULD THEY COME
HERE, IF AT ALL, THROUGH CERTIORARI.  BUT REVIEW COULD BE BROUGHT
DIRECTLY TO THIS COURT OF CASES IN WHICH THE JURISDICTION OF THE
DISTRICT COURT WAS IN ISSUE, AND THEREFORE WRITS OF "PROHIBITION OR
MANDAMUS OR CERTIORARI AS ANCILLARY THERETO," IN RE MASSACHUSETTS,
SUPRA, AT 488, WERE AVAILABLE.  CASES WHICH CAME HERE DIRECTLY, PRIOR
TO THE JUDICIARY ACT OF FEBRUARY 13, 1925, 43 STAT. 936, TO REVIEW THE
JURISDICTION OF THE DISTRICT COURTS, WHETHER ON APPEAL OR THROUGH THE
INFORMAL PROCEDURE OF AUXILIARY WRITS, ARE THEREFORE NOT RELEVANT
PRECEDENTS FOR THE PRESENT CASE. 

THE JUDICIARY ACT OF 1925 WAS AIMED TO EXTEND THE COURT'S CONTROL
OVER ITS BUSINESS BY CURTAILING ITS APPELLATE JURISDICTION
DRASTICALLY.  RELIEF WAS GIVEN BY CONGRESS TO ENABLE THIS COURT TO
DISCHARGE ITS INDISPENSABLE FUNCTIONS OF INTERPRETING THE CONSTITUTION
AND PRESERVING UNIFORMITY OF DECISION AMONG THE ELEVEN INTERMEDIATE
COURTS OF APPEALS.  PERIODICALLY SINCE THE CIVIL WAR - TO SPEAK ONLY OF
RECENT TIMES - THE PRODIGAL SCOPE OF THE APPELLATE JURISDICTION OF THIS
COURT BROUGHT MORE CASES HERE THAN EVEN THE MOST COMPETENT TRIBUNAL
COULD WISELY AND PROMPTLY ADJUDICATE.  ARREARS BECAME INEVITABLE UNTIL,
AFTER A LONG LEGISLATIVE TRAVAIL, THE ESTABLISHMENT IN 1891 OF
INTERMEDIATE APPELLATE TRIBUNALS FREED THIS COURT OF A LARGE VOLUME OF
BUSINESS.  BY 1916, CONGRESS HAD TO ERECT A FURTHER DAM AGAINST ACCESS
TO THIS COURT OF LITIGATION THAT ALREADY HAD BEEN THROUGH TWO LOWER
COURTS AND WAS NOT OF A NATURE CALLING FOR THE JUDGMENT OF THE SUPREME
COURT.  ACT OF SEPTEMBER 6, 1916, 39 STAT. 726.  BUT THE INCREASE OF
BUSINESS - THE INEVITABLE AFTERMATH OF THE GREAT WAR AND OF RENEWED
LEGISLATIVE ACTIVITY - SOON CAUGHT UP WITH THE MEAGER RELIEF AFFORDED
BY THE ACT OF 1916.  THE OLD EVILS OF AN OVERBURDENED DOCKET
REAPPEARED.  ABSORPTION OF THE APPELLATE JURISDICTION OF THE SUPREME
COURT BY CASES THAT SHOULD HAVE GONE TO, OR BEEN LEFT WITH, THE CIRCUIT
COURTS OF APPEALS RESULTED IN UNJUSTIFIABLE SUBORDINATION OF THE
NATIONAL INTERESTS IN THE SPECIAL KEEPING OF THIS COURT.  TO BE SURE,
THE SITUATION WAS NOT AS BAD AS THAT WHICH CALLED THE CIRCUIT COURTS OF
APPEALS INTO BEING.  IN THE EIGHTIES, THREE TO FOUR YEARS ELAPSED
BETWEEN THE DOCKETING AND THE HEARING OF A CASE.  BUT IT WAS BAD
ENOUGH.  IN 1922, CHIEF JUSTICE TAFT REPORTED TO CONGRESS THAT IT TOOK
FROM FIFTEEN TO EIGHTEEN MONTHS FOR A CASE TO REACH ARGUMENT. 

THE NEEDLESS CLOG ON THE COURT'S PROPER BUSINESS CAME FROM TWO
SOURCES.  MORE THAN A DOZEN CLASSES OF CASES COULD HAVE A SECOND REVIEW
IN THE SUPREME COURT, AS A MATTER OF RIGHT, AFTER AN UNSUCCESSFUL
APPEAL IN THE CIRCUIT COURTS OF APPEALS.  WITH A SINGLE EXCEPTION, ALL
ADJUDICATIONS BY THE CIRCUIT COURTS OF APPEALS WERE BY THE ACT OF 1925
MADE REVIEWABLE ONLY BY THE DISCRETIONARY WRIT OF CERTIORARI.  BUT NO
LESS PROLIFIC A SOURCE OF MISCHIEF IN THE PRACTICAL APPLICATION OF THE
APPELLATE JURISDICTION OF THE SUPREME COURT PRIOR TO THE ACT OF 1925,
WAS THE RIGHT TO BRING CASES DIRECTLY TO THIS COURT FROM THE DISTRICT
COURTS.  ACCORDING TO THE FIGURES SUBMITTED TO CONGRESS IN SUPPORT OF
THE NEED FOR THE 1925 LEGISLATION, ONE-SIXTH OF THE TOTAL BUSINESS OF
THE SUPREME COURT CAME DIRECTLY FROM THE DISTRICT COURTS.  (HEARING
BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, UNITED STATES
SENATE, 68TH CONG., 1ST SESS., ON S. 2060 AND S. 2061, PP. 32-33, 44
45.)  MOST OF THESE CASES PRESENTED PHASES OF THE GENERAL QUESTION NOW
BEFORE US, NAMELY, THE RIGHT OF A DISTRICT COURT TO ADJUDICATE.  THE
OBVIOUS REMEDY FOR THIS UNWARRANTED DIRECT REVIEW OF COURTS OF FIRST
INSTANCE WAS TO SHUT OFF DIRECT ACCESS FROM THE DISTRICT COURTS TO THIS
COURT.  THAT IS EXACTLY WHAT WAS PROPOSED.  IN THE LANGUAGE OF THE
CHIEF SPOKESMAN BEFORE THE JUDICIARY COMMITTEES, "SECTION 238 AS
AMENDED AND REENACTED IN THE BILL WOULD PERMIT CASES FALLING WITHIN
FOUR PARTICULAR CLASSES, AND THOSE ONLY, TO COME FROM THE DISTRICT
COURTS DIRECTLY TO THE SUPREME COURT.  ...  APART FROM CASES WITHIN
THESE FOUR CLASSES, THE BILL PROVIDES THAT THE IMMEDIATE REVIEW OF ALL
DECISIONS IN THE DISTRICT COURTS SHALL BE IN THE CIRCUIT COURTS OF
APPEALS.  WE REGARD THIS AS THE BETTER COURSE AND CALCULATED TO PROMOTE
THE PUBLIC INTEREST."  IBID., 33-34.  THIS CONCEPTION OF "THE PUBLIC
INTEREST" WAS TRANSLATED INTO LAW, EXCEPT THAT IN ONE ADDITIONAL CLASS
OF CASES DIRECT REVIEW WAS ALLOWED FROM THE DISTRICT COURTS TO THIS
COURT.  SUFFICE IT TO SAY THAT THE FIVE EXCEPTED CATEGORIES ARE NOT IN
SERIOUS DEROGATION OF THE WISE REQUIREMENT THAT REVIEW OF ACTION BY THE
DISTRICT COURTS BELONGS TO THE CIRCUIT COURTS OF APPEALS.  ALL FIVE
EITHER INVOLVE LITIGATION BEFORE A DISTRICT COURT COMPOSED OF THREE
JUDGES, OR ORDINARILY TOUCH MATTERS OF NATIONAL CONCERN. 

THE PRESENT POWER OF THIS COURT TO REVIEW DIRECTLY DECISIONS OF
DISTRICT COURTS MUST BE DETERMINED BY THE RESTRICTIONS CONGRESS IMPOSED
IN THE ACT OF 1925.  THE LANGUAGE OF THAT SECTION IS SIGNIFICANT: 

"A DIRECT REVIEW BY THE SUPREME COURT OF AN INTERLOCUTORY OR FINAL
JUDGMENT OR DECREE OF A DISTRICT COURT MAY BE HAD WHERE IT IS SO
PROVIDED IN THE FOLLOWING ACTS OR PARTS OF ACTS, AND NOT OTHERWISE. 
..."  (43 STAT. 936, 938.) 

THIS CASE DOES NOT FALL EVEN REMOTELY WITHIN ANY OF THESE FIVE ACTS. 
FN1  WE HAVE THUS BEEN GIVEN NO APPELLATE JURISDICTION OVER THIS
CONTROVERSY, BUT BY RESORT TO SO-CALLED ANCILLARY WRITS WE ARE
EXERCISING APPELLATE JURISDICTION HERE.  ON PRINCIPLE, IT IS STILL AS
TRUE AS IT WAS HELD TO BE IN IN RE MASSACHUSETTS, SUPRA, AND IN RE
GLASER, SUPRA, THAT "IN CASES OVER WHICH WE POSSESS NEITHER ORIGINAL
NOR APPELLATE JURISDICTION WE CANNOT GRANT PROHIBITION OR MANDAMUS  ...
AS ANCILLARY THERETO."  197 U.S. 482, 488.  THIS DOES NOT IMPLY THAT
BY INDIRECTION THE ACT OF 1925 REPEALED WHAT WERE ORIGINALLY SECS. 13
AND 14 OF THE JUDICIARY ACT OF 1789, ON WHICH, IN THEIR PRESENT FORM IN
THE U.S.C. (28 U.S.C. SECS. 342, 377, 451), THE COURT RELIES.  THE NEW
DISTRIBUTION OF APPELLATE JURISDICTION BETWEEN THE SUPREME COURT AND
THE CIRCUIT COURTS OF APPEALS DID NOT REPEAL THESE OLD PROVISIONS.  IT
DOES, HOWEVER, CALL FOR RESTRICTION OF THEIR APPLICATION IN HARMONY
WITH THIS NEW DISTRIBUTION.  ANCILLARY WRITS ARE STILL AVAILABLE BOTH
FOR THE CIRCUIT COURTS OF APPEALS AND THIS COURT WHEN THEY MAY IN FACT
BE ANCILLARY TO A MAIN SUIT.  SEE EX PARTE KAWATO, 316 U.S. 650, 317
U.S. 69, 71(LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS GRANTED AFTER
SUCH LEAVE WAS DENIED BY THE CIRCUIT COURT OF APPEALS); AND ADAMS V.
U.S. EX REL. MCCANN, 317 U.S. 269.  BUT WHEN WE CANNOT HAVE
JURISDICTION IN A CASE ON APPEAL, NO PROCEEDING CAN BE ANCILLARY TO
IT. 

I AM NOT UNMINDFUL THAT THE HEARINGS ON THE JUDICIARY ACT OF 1925
BEFORE THE COMMITTEES OF CONGRESS ARE COMPLETELY SILENT REGARDING THE
APPELLATE JURISDICTION OF THIS COURT THROUGH USE OF ANCILLARY WRITS. 
BUT IT WOULD NOT BE THE FIRST TIME IN THE HISTORY OF JUDICIARY
LEGISLATION THAT EMINENT JURISDICTIONAL AUTHORITIES AND EXPERT
DRAFTSMEN, PREOCCUPIED WITH MAJOR PROBLEMS IN A LARGE SCHEME FOR
RELIEVING THIS COURT OF UNDUE BUSINESS, HAVE BEEN FORGETFUL OF MINOR
ASPECTS OF JURISDICTION.  FOR INSTANCE, IT TOOK SIX YEARS TO DEAL WITH
THE IMPLICATIONS OVERLOOKED BY SENATOR EVARTS IN USING THE PHRASE
"INFAMOUS CRIMES" IN THE ACT OF 1891.  (SEE IN RE CLAASEN, 140 U.S.
200, AND H. REP. NO. 666, 54TH CONG., 1ST SESS., THE LETTER OF CHIEF
JUSTICE FULLER TO SENATOR HOAR IN 23 CONG. REC. 3285-86, REPORT OF
ATTORNEY GENERAL OLNEY FOR 1893, XXV, AND THE ACT OF JANUARY 20, 1897,
29 STAT. 492.)  LEGISLATION BY EVEN THE MOST COMPETENT HANDS, LIKE
OTHER FORMS OF COMPOSITION, IS SUBJECT TO THE FRAILTIES OF THE
IMAGINATION.  CONCENTRATION ON THE BASIC AIMS OF A REFORM LIKE THE ACT
OF 1925 INEVITABLY OVERLOOKS LACUNAE AND AMBIGUITIES WHICH THE FUTURE
REVEALS AND WHICH THE FUTURE MUST CORRECT.  THE ACT OF 1925, DESPITE
ITS DEFT AUTHORSHIP, SOON REVEALED SUCH AMBIGUITIES.  SEE THE SERIES OF
CASES COLLECTED IN PHILLIPS V. UNITED STATES, 312 U.S. 246, 250-51. 
THEY WERE RESOLVED BY FAITHFUL ENFORCEMENT OF THE CENTRAL PURPOSE OF
THE ACT OF FEBRUARY 13, 1925, WHICH WAS "TO KEEP WITHIN NARROW CONFINES
OUR APPELLATE DOCKET," 312 U.S. AT 250.  FOR MORE THAN HALF A CENTURY
THE DESIRE OF CONGRESS TO CUT DOWN THE APPELLATE JURISDICTION OF THIS
COURT HAS BEEN GIVEN EFFECT IN A VARIETY OF SITUATIONS EVEN THOUGH
CONGRESS DID NOT ADEQUATELY EXPRESS SUCH PURPOSE.  SEE, FOR INSTANCE,
MCLISH V. ROFF, 141 U.S. 661; ROBINSON V. CALDWELL, 165 U.S. 359;
AMERICAN SUGAR REFINING CO. V. NEW ORLEANS, 181 U.S. 277; AMERICAN
SECURITY CO. V. DISTRICT OF COLUMBIA, 224 U.S. 491; INTER-ISLAND STEAM
NAVIGATION CO. V. WARD, 242 U.S. 1. 

FINALLY, IT IS URGED THAT PRACTICE SINCE THE JUDICIARY ACT OF 1925
SANCTIONS THE PRESENT ASSUMPTION OF JURISDICTION.  CASES LIKE EX PARTE
NORTHERN PACIFIC RY. CO., 280 U.S. 142, ORDERING A DISTRICT JUDGE TO
SUMMON THREE JUDGES TO HEAR A SUIT UNDER SEC. 266 OF THE JUDICIAL CODE
(28 U.S.C. SEC. 380), MUST BE PUT TO ONE SIDE.  THIS IS ONE OF THE
EXCEPTED CLASSES UNDER THE ACT OF 1925 IN WHICH DIRECT REVIEW LIES FROM
A DISTRICT COURT TO THE SUPREME COURT, AND IT IS THEREFORE AN ORTHODOX
UTILIZATION OF AN ANCILLARY WRIT, WITHIN THE RULE OF IN RE
MASSACHUSETTS, SUPRA.  OF ALL THE OTHER CASES IN WHICH, SINCE THE ACT
OF 1925, A WRIT WAS AUTHORIZED TO BE ISSUED, NONE IS COMPARABLE TO THE
CIRCUMSTANCES OF THE PRESENT CASE.  IN ONE, EX PARTE KAWATO, SUPRA, THE
APPELLATE JURISDICTION OF THIS COURT WAS INVOKED ONLY AFTER APPELLATE
JURISDICTION WAS DENIED BY A CIRCUIT COURT OF APPEALS.  ANOTHER, EX
PARTE UNITED STATES, 287 U.S. 241, WHILE IN FORM A REVIEW OF ACTION BY
A DISTRICT COURT, WAS IN FACT AN INDEPENDENT SUIT BY THE UNITED STATES,
BECAUSE NO APPEAL AS SUCH LAY FROM THE REFUSAL OF THE DISTRICT JUDGE IN
THAT CASE TO ISSUE A BENCH WARRANT IN DENIAL OF HIS DUTY.  IF THE SUIT
WAS A JUSTICIABLE CONTROVERSY THROUGH USE OF THE ANCILLARY WRIT, IT WAS
EQUALLY JUSTICIABLE IF REGARDED AS AN ORIGINAL SUIT BY THE UNITED
STATES.  WHILE, TO BE SURE, IT WAS NOT FORMALLY SUCH, AND WHILE AN
ORDINARY SUIT BY THE UNITED STATES TO ENFORCE AN OBLIGATION AGAINST ONE
OF ITS CITIZENS PROPERLY CANNOT BE BROUGHT WITHIN THE ORIGINAL
JURISDICTION OF THIS COURT, EX PARTE UNITED STATES, SUPRA, WAS QUITE
DIFFERENT.  THERE THE UNITED STATES SOUGHT ENFORCEMENT OF A PUBLIC DUTY
FOR WHICH NO REDRESS COULD BE HAD IN ANY OTHER COURT.  THEREFORE, THE
CONSIDERATIONS WHICH LED THIS COURT IN UNITED STATES V. TEXAS, 143 U.S.
621, TO ALLOW THE UNITED STATES TO INITIATE AN ORIGINAL SUIT IN THIS
COURT, ALTHOUGH THE MERELY LITERAL LANGUAGE OF THE CONSTITUTION
PRECLUDED IT (AS THE DISSENT IN THAT CASE INSISTED), MIGHT HAVE BEEN
EQUALLY POTENT TO ALLOW ASSUMPTION OF SUCH JURISDICTION IN THE
CIRCUMSTANCES OF EX PARTE UNITED STATES.  BUT, IN ANY EVENT, MERELY
BECAUSE THERE IS NO OTHER AVAILABLE JUDICIAL RELIEF IS NO REASON FOR
TAKING APPELLATE JURISDICTION.  FOR SOME SITUATIONS THE ONLY
APPROPRIATE REMEDY IS CORRECTIVE LEGISLATION.  OF THE SAME NATURE WERE
FOUR OTHER CASES, THREE SUITS BY MARYLAND AND ONE BY COLORADO. 
MARYLAND V. SOPER (1), 270 U.S. 9; MARYLAND V. SOPER (2), 270 U.S. 36;
MARYLAND V. SOPER (3), 270 U.S. 44; COLORADO V. SYMES, 286 U.S. 510. 
THESE CASES WERE NOT ORDINARY CLAIMS BY A STATE AGAINST ONE OF ITS
CITIZENS FOR WHICH THE STATE COURTS ARE THE APPROPRIATE TRIBUNALS, SEE
CALIFORNIA V. SOUTHERN PACIFIC CO., 157 U.S. 229.  THEY WERE IN EFFECT
SUITS BY STATES AGAINST FEDERAL FUNCTIONARIES IN SITUATIONS IN WHICH
THE CITIZENSHIP OF THESE FUNCTIONARIES WAS IRRELEVANT TO THE
CONTROVERSY.  AND SO THE CONSIDERATIONS THAT MADE THE CONTROVERSIES BY
MARYLAND AND COLORADO JUSTICIABLE THROUGH ANCILLARY WRITS MIGHT HAVE
BEEN EQUALLY RELEVANT IN ESTABLISHING JUSTICIABILITY FOR ORIGINAL SUITS
IN THIS COURT UNDER ARTICLE III, SEC. 2.  IT IS NOT WITHOUT
SIGNIFICANCE THAT THE MARYLAND V. SOPER CASES AND COLORADO V. SYMES,
WHICH THE COURT NOW REGARDS AS PRECEDENTS FOR THE RULING IN EX PARTE
UNITED STATES, WERE NOT EVEN REFERRED TO IN THE OPINION IN THE LATTER
CASE. 

IF EX PARTE UNITED STATES, THE MARYLAND V. SOPER CASES, AND COLORADO
V. SYMES, SUPRA, ARE NOT TO BE SUPPORTED ON THE BASIS OF THEIR PECULIAR
CIRCUMSTANCES WHICH MIGHT HAVE JUSTIFIED THE COURT IN ASSUMING
JURISDICTION, THEY SHOULD BE CANDIDLY REGARDED AS DEVIATIONS FROM THE
NARROW LIMITS WITHIN WHICH OUR APPELLATE JURISDICTION SHOULD MOVE. 
THEY WOULD THEN BELONG WITH THE OCCASIONAL LAPSES WHICH OCCUR WHEN
TECHNICAL QUESTIONS OF JURISDICTION ARE NOT PROPERLY PRESENTED TO THE
COURT AND CONSCIOUSLY MET.  THAT LEAVES TWO OTHER CASES, LOS ANGELES
BRUSH CORP. V. JAMES, 272 U.S. 701, AND MCCULLOUGH V. COSGRAVE, 309
U.S. 634.  IN THE LOS ANGELES BRUSH CASE, THE COURT EXPLICITLY REFUSED
TO INVOKE AUTHORITY TO ISSUE AN ANCILLIARY WRIT INASMUCH AS THE
APPELLATE JURISDICTION OF THE CONTROVERSY BELONGED TO THE CIRCUIT COURT
OF APPEALS AND NOT TO THIS COURT.  THE CASE CONCERNED "THE ENFORCEMENT
OF THE EQUITY RULES," 272 U.S. AT 706, AND THE POWER WHICH THIS COURT
RECOGNIZED IN THAT CASE WAS PART OF THE DUTY IMPOSED UPON THE COURT BY
CONGRESS TO FORMULATE AND PUT IN FORCE THE EQUITY RULES.  THE
MCCULLOUGH CASE WAS EQUALLY RESTRICTED.  IT MERELY FOLLOWED THE LOS
ANGELES BRUSH CASE IN ENFORCING THE EQUITY RULES. 

TO BE SURE, EX PARTE UNITED STATES, SUPRA, STATED THAT LATER CASES
HAD QUALIFIED IN RE MASSACHUSETTS AND IN RE GLASER, SUPRA.  BUT THE
CASES THAT WERE AVOUCHED (MCCLELLAN V. CARLAND, 217 U.S. 268; EX PARTE
ABDU, 247 U.S. 27) IN NO WISE CALLED INTO QUESTION IN RE MASSACHUSETTS
AND IN RE GLASER, AND THE ACTUAL DECISIONS LEFT THEM INTACT.  THE
AUTHORITY OF IN RE MASSACHUSETTS, SUPRA, AND IN RE GLASER, SUPRA, WAS
UNQUESTIONED AS LATE AS 1923, IN MAGNUM CO. V. COTY, 262 U.S. 159,
AFTER, THAT IS, THE CASES REFERRED TO IN EX PARTE UNITED STATES, SUPRA,
AS HAVING LIMITED IN RE MASSACHUSETTS AND IN RE GLASER.  THE ESSENCE OF
THE ACT OF 1925 WAS CURTAILMENT OF OUR APPELLATE JURISDICTION AS A
MEASURE NECESSARY FOR THE EFFECTIVE DISCHARGE OF THE COURT'S
FUNCTIONS.  IT IS HARDLY CONSONANT WITH THIS RESTRICTIVE PURPOSE OF THE
ACT OF 1925 TO ENLARGE THE OPPORTUNITIES TO COME TO THIS COURT BEYOND
THE LIMIT RECOGNIZED AND ENFORCED UNDER THE ACT OF 1891 - THAT THERE
CAN BE NO ANCILLARY JURISDICTION WHERE THE LITIGATION ON THE MERITS
COULD NOT DIRECTLY COME HERE FOR REVIEW.  IN ONLY ONE OF THE CASES
SINCE THE ACT OF 1925 IN WHICH THE ANCILLARY WRITS WERE INVOKED IN
SITUATIONS IN WHICH THIS COURT DID NOT HAVE DIRECT APPELLATE
JURISDICTION, DID COUNSEL CALL TO THE ATTENTION OF THIS COURT THE
BEARING OF THE ACT OF 1925 UPON THE POWER TO ISSUE ANCILLARY WRITS AND
THE RELEVANCE OF CASES PRIOR TO THAT ACT, AND IN NO CASE DID THIS COURT
APPARENTLY ADDRESS ITSELF TO THE PROBLEM NOW CANVASSED.  AUTHORITY
EXERCISED SUB SILENTIO DOES NOT ESTABLISH JURISDICTION.  THROUGHOUT ITS
HISTORY IT HAS BEEN THE FIRM POLICY OF THIS COURT NOT TO RECOGNIZE THE
EXERCISE OF JURISDICTION UNDER SUCH CIRCUMSTANCES AS PRECEDENTS WHEN
THE QUESTION IS FIRST SHARPLY BROUGHT FOR DECISION.  UNITED STATES V.
MORE, 3 CRANCH 159, 172; SNOW V. UNITED STATES, 118 U.S. 346, 354-55;
CROSS V. BURKE, 146 U.S. 82, 87; LOUISVILLE TRUST CO. V. KNOTT, 191
U.S. 225, 236; ARANT V. LANE, 245 U.S. 166, 170. 

IN DECIDING WHETHER TO GIVE A LATITUDINARIAN OR A RESTRICTED SCOPE TO
THE APPELLATE JURISDICTION OF THIS COURT, THE IMPORTANT FACTOR IS THE
NUMBER OF INSTANCES IN WHICH APPLICATIONS FOR THE EXERCISE OF THE
COURT'S JURISDICTION HAS BEEN OR MAY BE MADE, NOT THE NUMBER OF
INSTANCES IN WHICH THE JURISDICTION HAS BEEN EXERCISED.  AND SO IT
TELLS LITTLE THAT LESS THAN TEN APPLICATIONS FOR MANDAMUS HAVE BEEN
GRANTED SINCE THE ACT OF 1925.  WHAT IS FAR MORE IMPORTANT IS THAT
MERELY FOR THE FIRST SEVEN TERMS AFTER THAT ACT NOT LESS THAN SEVENTY
TWO APPLICATIONS FOR SUCH WRITS WERE MADE.  EVERY APPLICATION CONSUMES
TIME IN CONSIDERATION, WHETHER EVENTUALLY GRANTED OR DENIED. 

HAD THE COURT JURISDICTION, THIS CASE WOULD FURNISH NO OCCASION FOR
ITS EXERCISE.  ON WHATEVER TECHNICAL BASIS OF JURISDICTION THE
AVAILABILITY OF THESE WRITS MAY HAVE BEEN FOUNDED, THEIR USE HAS BEEN
RESERVED FOR VERY SPECIAL CIRCUMSTANCES.  HOWEVER VARYING THE LANGUAGE
OF JUSTIFICATION, THESE ANCILLARY WRITS HAVE BEEN ISSUED ONLY TO
FURTHER SOME IMPERATIVE CLAIM OF JUSTICE.  IN THE PRESENT CASE, THE
UPSHOT OF THESE PROCEEDINGS IS TO CIRCUMVENT THE INTERMEDIATE APPELLATE
COURT AS THE NATURAL AND NORMAL RESORT FOR RELIEF FROM A CLAIM OF WANT
OF JURISDICTION IN THE DISTRICT COURT. 

NO PALPABLE EXIGENCY EITHER OF NATIONAL OR INTERNATIONAL IMPORT IS
MADE MANIFEST FOR SEEKING THIS EXTRAORDINARY RELIEF HERE.  FOR ALL
PRACTICAL PURPOSES, THE LITIGATION HAS CEASED TO CONCERN A VESSEL
BELONGING TO A SISTER REPUBLIC.  WHILE, TO BE SURE, THE LEGAL ISSUES
TURN ON THE CLAIM OF SOVEREIGN IMMUNITY BY PERU IN A VESSEL LIBELED IN
AN AMERICAN HARBOR, THE SHIP HAS LONG SINCE BEEN RELEASED AND THE
ACTUAL STAKE OF THE CONTROVERSY IS A BOND.  THUS THE CASE FOR OUR
INTERVENTION, TO THE DISREGARD OF THE CIRCUIT COURT OF APPEALS, CANNOT
BE PUT HIGHER THAN THE PROPRIETY OF VINDICATING THE DIGNITY OF A
FRIENDLY FOREIGN STATE. 

BUT SURELY THIS IS TO INTRODUCE THE FORMAL ELEGANCIES OF DIPLOMACY
INTO THE SEVERE BUSINESS OF SECURING LEGAL RIGHTS THROUGH THE JUDICIAL
MACHINERY NORMALLY ADAPTED FOR THE PURPOSE.  AFTER ALL, IF THE FRAMERS
OF THE CONSTITUTION HAD DEEMED LITIGATION IN THIS COURT ALONE TO
COMPORT WITH APPROPRIATE REGARD FOR THE DIGNITY OF A FRIENDLY FOREIGN
STATE, THEY WOULD HAVE GIVEN THIS COURT ORIGINAL JURISDICTION IN SUCH
CASES.  IF OUR NEAREST NEIGHBORS WISHED TO LITIGATE IN THIS COUNTRY,
THEY COULD NOT BRING SUIT IN THIS COURT.  SEE MONACO V. MISSISSIPPI,
292 U.S. 313.  IT IS NOT DEEMED INCOMPATIBLE WITH THE DIGNITY OF THE
UNITED STATES ITSELF TO BEGIN SUIT IN A DISTRICT COURT, HAVE THE
LITIGATION PROCEED TO THE CIRCUIT COURT OF APPEALS, AND ONLY BY OUR
LEAVE REACH THIS COURT.  SEE, E.G., UNITED STATES V. CALIFORNIA, 297
U.S. 175.  LITIGATION INVOLVING THE INTERESTS OF THE UNITED STATES IN
SHIPS OWNED BY IT HAS TWICE RECENTLY GONE THROUGH THIS NORMAL PROCESS,
AND IT WILL NOT BE THOUGHT THAT THE DIGNITY OF THE UNITED STATES WAS
THEREBY COMPROMISED.  INDEED, UNDER THE ARRANGEMENTS MADE BY CONGRESS
IN 1925, MEASURES DEEMED INDISPENSABLE FOR THE CONDUCT OF THE WAR COULD
BE NULLIFIED BY DISTRICT COURTS AND COULD NOT COME HERE FOR REVIEW
UNTIL APPEAL WAS DULY TAKEN TO THE CIRCUIT COURTS OF APPEALS.  TO BE
SURE, CONGRESS HAS WISELY PROVIDED THAT ONCE SUCH AN APPEAL IS FILED
THIS COURT IN ITS DISCRETION MAY BRING THE APPEAL HERE.  SEE, E.G.,
WHITE V. MECHANICS SECURITIES CORP., 269 U.S. 283; NORMAN V. B. & O.R.
CO., 294 U.S. 240, 294-95; EX PARTE QUIRIN, 317 U.S. 1, 19-20.  TO
REQUIRE A FOREIGN STATE TO SEEK RELIEF IN AN ORDERLY FASHION THROUGH
THE CIRCUIT COURT OF APPEALS CAN IMPLY AN INDIFFERENCE TO THE DIGNITY
OF A SISTER NATION ONLY ON THE ASSUMPTION THAT CIRCUIT COURTS OF
APPEALS ARE NOT COURTS OF GREAT AUTHORITY.  OUR FEDERAL JUDICIAL SYSTEM
PRESUPPOSES THE CONTRARY.  CERTAINLY THIS COURT SHOULD IN EVERY
POSSIBLE WAY ATTRIBUTE TO THESE COURTS 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. 

TO REMIT A CONTROVERSY LIKE THIS TO THE CIRCUIT COURT OF APPEALS WHERE
IT PROPERLY BELONGS IS NOT TO BE INDIFFERENT TO CLAIMS OF IMPORTANCE
BUT TO BE UNCOMPROMISING IN SAFEGUARDING THE CONDITIONS WHICH ALONE
WILL ENABLE THIS COURT TO DISCHARGE WELL THE DUTIES ENTRUSTED
EXCLUSIVELY TO US.  THE TREMENDOUS AND DELICATE PROBLEMS WHICH CALL FOR
THE JUDGMENT OF THE NATION'S ULTIMATE TRIBUNAL REQUIRE THE UTMOST
CONSERVATION OF TIME AND ENERGY EVEN FOR THE ABLEST JUDGES.  LISTENING
TO ARGUMENTS AND STUDYING RECORDS AND BRIEFS CONSTITUTE ONLY A FRACTION
OF WHAT GOES INTO THE JUDICIAL PROCESS.  FOR ONE THING, AS THE PRESENT
LAW REPORTS COMPARED WITH THOSE OF EVEN A GENERATION AGO BEAR AMPLE
TESTIMONY, THE TYPES OF CASES THAT NOW COME BEFORE THE COURT TO A
CONSIDERABLE EXTENT REQUIRE STUDY OF MATERIALS OUTSIDE THE TECHNICAL
LAW BOOKS.  BUT MORE IMPORTANT, THE JUDGMENTS OF THIS COURT ARE
COLLECTIVE JUDGMENTS.  SUCH JUDGMENTS PRESUPPOSE AMPLE TIME AND
FRESHNESS OF MIND FOR PRIVATE STUDY AND REFLECTION IN PREPARATION FOR
DISCUSSIONS IN CONFERENCE.  WITHOUT ADEQUATE STUDY THERE CANNOT BE
ADEQUATE REFLECTION; WITHOUT ADEQUATE REFLECTION THERE CANNOT BE
ADEQUATE DISCUSSION; WITHOUT ADEQUATE DISCUSSION THERE CANNOT BE THAT
MATURE AND FRUITFUL INTERCHANGE OF MINDS WHICH IS INDISPENSABLE TO WISE
DECISIONS AND LUMINOUS OPINIONS. 

IT IS THEREFORE IMPERATIVE THAT THE DOCKET OF THE COURT BE KEPT DOWN,
THAT NO CASE BE TAKEN WHICH DOES NOT RISE TO THE SIGNIFICANCE OF
INESCAPABILITY FOR THE RESPONSIBILITY ENTRUSTED TO THIS COURT.  EVERY
CASE THAT IS ALLOWED TO COME HERE WHICH, JUDGED BY THESE STANDARDS, MAY
WELL BE LEFT EITHER TO THE STATE COURTS OR TO THE CIRCUIT COURTS OF
APPEALS, MAKES INROADS UPON THOUGHT AND ENERGY WHICH PROPERLY BELONG TO
THE LIMITED NUMBER OF CASES WHICH ONLY THIS COURT CAN ADJUDICATE.  EVEN
A JUDGE OF SUCH UNIQUE GIFTS AND EXPERIENCE AS MR. JUSTICE HOLMES FELT
AT THE VERY HEIGHT OF HIS POWERS, AS WE NOW KNOW, THE WHIP OF UNDUE
PRESSURE IN HIS WORK.  ONE CASE IS NOT JUST ONE CASE MORE, AND DOES NOT
STOP WITH BEING JUST ONE MORE CASE.  CHIEF JUSTICE TAFT WAS NOT THE
LAST JUDGE WHO, AS HE SAID OF HIMSELF, "HAVING A KIND HEART, I AM
INCLINED TO GRANT PROBABLY MORE (DISCRETIONARY REVIEWS) THAN IS WISE." 
(HEARING BEFORE THE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, 68TH CONG., 2D SESS., ON H.R. 8206, P. 27.) 

IN A CASE LIKE THIS, WE SHOULD DENY OUR POWER TO EXERCISE
JURISDICTION.  BUT, IN ANY EVENT, WE SHOULD REFUSE TO EXERCISE IT.  BY
SUCH REFUSAL WE WOULD DISCOURAGE FUTURE APPLICATIONS OF A SIMILAR KIND,
AND THEREBY ENFORCE THOSE RIGOROUS STANDARDS IN THIS COURT'S JUDICIAL
ADMINISTRATION WHICH ALONE WILL GIVE US THE FRESHNESS AND VIGOR OF
THOUGHT AND SPIRIT THAT ARE INDISPENSABLE FOR WISE DECISIONS IN THE
CAUSES COMMITTED TO US. 

MR. JUSTICE REED IS OF THE OPINION THAT THIS COURT HAS JURISDICTION
TO GRANT THE WRIT REQUESTED, EX PARTE UNITED STATES, 287 U.S. 241, BUT
CONCURS IN THIS DISSENT ON THE GROUND THAT APPLICATION FOR THE WRIT
SOUGHT SHOULD HAVE BEEN MADE FIRST TO THE CIRCUIT COURT OF APPEALS. 

FN1  "SEC.  238.  A DIRECT REVIEW BY THE SUPREME COURT OF AN
INTERLOCUTORY OR FINAL JUDGMENT OR DECREE OF A DISTRICT COURT MAY BE
HAD WHERE IT IS SO PROVIDED IN THE FOLLOWING ACTS OR PARTS OF ACTS, AND
NOT OTHERWISE: 

(1)  SECTION 2 OF THE ACT OF FEBRUARY 11, 1903, 'TO EXPEDITE THE
HEARING AND DETERMINATION' OF CERTAIN SUITS BROUGHT BY THE UNITED
STATES UNDER THE ANTITRUST OR INTERSTATE COMMERCE LAWS, AND SO FORTH. 

(2)  THE ACT OF MARCH 2, 1907, 'PROVIDING FOR WRITS OF ERROR IN
CERTAIN INSTANCES IN CRIMINAL CASES' WHERE THE DECISION OF THE DISTRICT
COURT IS ADVERSE TO THE UNITED STATES. 

(3)  AN ACT RESTRICTING THE ISSUANCE OF INTERLOCUTORY INJUNCTIONS TO
SUSPEND THE ENFORCEMENT OF THE STATUTE OF A STATE OR OF AN ORDER MADE
BY AN ADMINISTRATIVE BOARD OR COMMISSION CREATED BY AND ACTING UNDER
THE STATUTE OF A STATE, APPROVED MARCH 4, 1913, WHICH ACT IS HEREBY
AMENDED BY ADDING AT THE END THEREOF, 'THE REQUIREMENT RESPECTING THE
PRESENCE OF THREE JUDGES SHALL ALSO APPLY TO THE FINAL HEARING IN SUCH
SUIT IN THE DISTRICT COURT; AND A DIRECT APPEAL TO THE SUPREME COURT
MAY BE TAKEN FROM A FINAL DECREE GRANTING OR DENYING A PERMANENT
INJUNCTION IN SUCH SUIT.' 

(4)  SO MUCH OF 'AN ACT MAKING APPROPRIATIONS TO SUPPLY URGENT
DEFICIENCIES IN APPROPRIATIONS FOR THE FISCAL YEAR 1913, AND FOR OTHER
PURPOSES,' APPROVED OCTOBER 22, 1913, AS RELATES TO THE REVIEW OF
INTERLOCUTORY AND FINAL JUDGMENTS AND DECREES IN SUITS TO ENFORCE,
SUSPEND, OR SET ASIDE ORDERS OF THE INTERSTATE COMMERCE COMMISSION
OTHER THAN FOR THE PAYMENT OF MONEY. 

(5)  SECTION 316 OF 'AN ACT TO REGULATE INTERSTATE AND FOREIGN
COMMERCE IN LIVESTOCK, LIVESTOCK PRODUCTS, DAIRY PRODUCTS, POULTRY,
POULTRY PRODUCTS, AND EGGS, AND FOR OTHER PURPOSES' APPROVED AUGUST 15,
1921."  43 STAT. 936, 938. 
..END :





















HELVERING V. SPROUSE, 318 U.S. 604 


NO. 22.  ARGUED NOVEMBER 10, 12, 1942.  - DECIDED APRIL 5, 1943.  - NO.
22, 122 F.2D 973, AFFIRMED.  - NO. 66, 124 F.2D 315, REVERSED. 


1.  WHERE A CORPORATION HAVING BUT TWO CLASSES OF STOCK, VOTING COMMON
AND NON-VOTING COMMON, DISTRIBUTES TO ALL THE SHAREHOLDERS OF BOTH
CLASSES, IN PROPORTION TO THEIR RESPECTIVE HOLDINGS, A DIVIDEND OF NON
VOTING COMMON, THE FAIR MARKET VALUE OF WHICH IS ITS PAR VALUE, AND
WHICH IS BACKED BY EARNINGS AND PROFITS AVAILABLE FOR DISTRIBUTION IN
EXCESS OF ITS TOTAL VALUE, NEITHER THE VOTING RIGHTS OF THE VOTING
COMMON NOR ITS RIGHT TO SHARE IN DIVIDENDS OR IN LIQUIDATION BEING
ALTERED BY THE DISTRIBUTION, SO THAT THE RELATIONS PREVIOUSLY EXISTING
BETWEEN ALL THE SHAREHOLDERS, OR BETWEEN THE PARTICULAR SHAREHOLDER AND
THE CORPORATION, ARE IN NO WISE DISTURBED BY THE DISTRIBUTION, THE
DIVIDEND IS NOT SUBJECT TO INCOME TAX.  CONST., AMENDMENT XVI; REVENUE
ACT OF 1936, SEC. 115(F)(1).  P. 606. 

2.  WHERE THE SOLE OWNER OF THE COMMON STOCK OF A CORPORATION WHICH
HAD COMMON STOCK ONLY, RECEIVED A DIVIDEND OF NON-VOTING PREFERRED
STOCK AUTHORIZED BY A CHARTER AMENDMENT AND THE VALUE OF WHICH WAS
EXCEEDED BY EARNINGS OF THE CORPORATION AVAILABLE FOR DIVIDENDS WITHOUT
CHANGING THE SHAREHOLDER'S INTEREST IN THE CORPORATION OR IN ITS NET
VALUE, THE DIVIDEND IS NOT TAXABLE INCOME.  CONST., AMENDMENT XVI;
REVENUE ACT OF 1936, SEC. 115(F)(1).  P. 606. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. SPROUSE.* 

*TOGETHER WITH NO. 66, STRASSBURGER V. COMMISSIONER OF INTERNAL
REVENUE, ON WRIT OF CERTIORARI, 316 U.S. 656, TO THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

REVIEW BY CERTIORARI, 316 U.S. 656, OF TWO JUDGMENTS, THE ONE
REVERSING A RULING WHICH SUSTAINED A DEFICIENCY ASSESSMENT OF INCOME,
42 B.T.A. 484, AND THE OTHER AFFIRMING THE LIKE RULING IN ANOTHER
CASE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS GRANTED BECAUSE THE DECISIONS BELOW IN THE TWO CASES
CONFLICT.  THEY ARISE UNDER SEC. 115(F)(1) OF THE REVENUE ACT OF 1936:
FN1 

"A DISTRIBUTION MADE BY A CORPORATION TO ITS SHAREHOLDERS IN ITS
STOCK OR IN RIGHTS TO ACQUIRE ITS STOCK SHALL NOT BE TREATED AS A
DIVIDEND TO THE EXTENT THAT IT DOES NOT CONSTITUTE INCOME TO THE
SHAREHOLDER WITHIN THE MEANING OF THE SIXTEENTH AMENDMENT TO THE
CONSTITUTION." 

                       NO. 22 

THE RESPONDENT OWNED VOTING COMMON STOCK IN AN OREGON CORPORATION
WHICH PAID A TEN PER CENT STOCK DIVIDEND IN SHARES OF NON-VOTING COMMON
STOCK.  THE COMPANY HAD OUTSTANDING BUT TWO CLASSES OF STOCK:  VOTING
COMMON, OF A PAR VALUE OF $397,471.25; AND NON-VOTING COMMON, OF A PAR
VALUE OF $819,333.06.  THE DIVIDEND WAS OF NON-VOTING COMMON OF A PAR
OF $121,680.43 AND WAS DISTRIBUTED TO HOLDERS OF THE VOTING AND NON
VOTING COMMON.  THE FAIR MARKET VALUE OF THE STOCK DISTRIBUTED AS A
DIVIDEND WAS ITS PAR VALUE, AND THE EARNINGS OR PROFITS AVAILABLE FOR
DISTRIBUTION WERE IN EXCESS OF ITS TOTAL VALUE.  NEITHER THE VOTING
RIGHTS OF THE VOTING COMMON, NOR ITS RIGHT TO SHARE IN DIVIDENDS AND IN
LIQUIDATION, WAS ALTERED BY THE DISTRIBUTION. 

THE RESPONDENT, WHO OWNED NO NON-VOTING COMMON, RECEIVED 200 SHARES
OF THAT CLASS OF STOCK.  IN HIS RETURN FOR 1936, HE DID NOT REPORT THE
DIVIDEND AS INCOME.  THE COMMISSIONER DETERMINED A DEFICIENCY BY
INCLUDING THE VALUE OF THE DIVIDEND AS INCOME, AND THE BOARD OF TAX
APPEALS SUSTAINED HIM.  FN2  THE CIRCUIT COURT OF APPEALS REVERSED,
HOLDING THAT THE DIVIDEND WAS NOT CONSTITUTIONALLY THE SUBJECT OF
INCOME TAX IF IT WAS DISTRIBUTED TO HOLDERS OF BOTH CLASSES OF
OUTSTANDING STOCK IN PROPORTION TO THEIR RESPECTIVE HOLDINGS.  IT
ACCORDINGLY REMANDED THE CASE TO THE BOARD TO FIND THE FACTS AND TO
APPLY THE RULE ANNOUNCED.  FN3

 NO. 66 

PETITIONER OWNED 200 SHARES OF COMMON, - THE ENTIRE STOCK OF A
CORPORATION.  BY CHARTER AMENDMENT THE CREATION OF AN ISSUE OF 500
SHARES OF 7% CUMULATIVE NON-VOTING PREFERRED STOCK, OF $100 PAR VALUE,
WAS AUTHORIZED.  THE DIRECTORS VOTED A DISTRIBUTION TO STOCKHOLDERS OF
$5,000 PAR OF THE PREFERRED STOCK; AND THE PETITIONER, AS SOLE
STOCKHOLDER, RECEIVED FIFTY SHARES AS A STOCK DIVIDEND.  THE EARNINGS
AVAILABLE FOR DIVIDENDS WERE IN EXCESS OF THE VALUE OF THIS STOCK. 
PETITIONER STILL HOLDS THE PREFERRED STOCK AND NO DIVIDENDS HAVE BEEN
PAID UPON IT.  THE PETITIONER FAILED TO RETURN THE STOCK DIVIDEND AS
INCOME, THE RESPONDENT DETERMINED A DEFICIENCY, AND THE BOARD OF TAX
APPEALS AFFIRMED HIS ACTION.  THE CIRCUIT OF APPEALS AFFIRMED THE
BOARD'S DECISION.  FN4 

WE THINK THE JUDGMENT IN NO. 22 WAS RIGHT AND THAT IN NO. 66
ERRONEOUS.  THE CASES ARE RULED BY HELVERING V. GRIFFITHS, ANTE, P.
371.  WHILE THE PETITIONER IN NO. 66 RECEIVED A DIVIDEND IN PREFERRED
STOCK, THE DISTRIBUTION BROUGHT ABOUT NO CHANGE WHATEVER IN HIS
INTEREST IN THE CORPORATION.  BOTH BEFORE AND AFTER THE EVENT HE OWNED
EXACTLY THE SAME INTEREST IN THE NET VALUE OF THE CORPORATION AS
BEFORE.  AT BOTH TIMES HE OWNED IT ALL AND RETAINED ALL THE INCIDENTS
OF OWNERSHIP HE HAD ENJOYED BEFORE. 

IN NO. 22, THE RESPONDENT INSISTS THAT THE DISTRIBUTION OF THE
DIVIDEND IN NOWISE DISTURBED THE RELATIONSHIP PREVIOUSLY EXISTING
AMONGST ALL THE STOCKHOLDERS, OR THAT PREVIOUSLY EXISTING BETWEEN THE
RESPONDENT AND THE CORPORATION.  THE COURT BELOW HAS HELD THAT, IF THIS
IS TRUE, THE DIVIDEND DID NOT CONSTITUTE INCOME. 

WE THINK KOSHLAND V. HELVERING, 298 U.S. 441, DISTINGUISHABLE.  THAT
WAS A CASE WHERE THERE WERE BOTH PREFERRED AND COMMON STOCKHOLDERS, AND
WHERE A DIVIDEND IN COMMON WAS PAID ON THE PREFERRED.  WE HELD, IN THE
CIRCUMSTANCES THERE DISCLOSED, THAT THE DIVIDEND WAS INCOME, BUT WE DID
NOT HOLD THAT ANY CHANGE WHATSOEVER IN THE CHARACTER OF THE SHARES
ISSUED AS DIVIDENDS RESULTED IN THE RECEIPT OF INCOME.  ON THE
CONTRARY, THE DECISION WAS THAT, TO RENDER THE DIVIDEND TAXABLE AS
INCOME, THERE MUST BE A CHANGE BROUGHT ABOUT BY THE ISSUE OF SHARES AS
A DIVIDEND WHEREBY THE PROPORTIONAL INTEREST OF THE STOCKHOLDER AFTER
THE DISTRIBUTION WAS ESSENTIALLY DIFFERENT FROM HIS FORMER INTEREST. 
NO. 22 AFFIRMED.  NO. 66 REVERSED. 

FN1  C. 690, 49 STAT. 1648, 1688. 

FN2  42 B.T.A. 484. 

FN3  122 F.2D 973. 

FN4  124 F.2D 315. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE REED, MR. JUSTICE FRANKFURTER, AND MR. JUSTICE JACKSON
DISSENT FROM EACH JUDGMENT.  THEY ARE OF OPINION THAT KOSHLAND V.
HELVERING, 298 U.S. 441, REQUIRES CONTRARY CONCLUSIONS. 
..END :







FIDELITY ASSURANCE ASSN. V. SIMS, 318 U.S. 608 


NO. 319.  ARGUED FEBRUARY 9, 10, 1943.  - DECIDED APRIL 5, 1943.  - 129
F.2D 442, AFFIRMED. 


1.  IN THE LIGHT OF THE CHARACTER AND HISTORY OF THE BUSINESS OF THE
INSOLVENT CORPORATION IN THIS CASE, HELD THAT ITS PETITION FOR
REORGANIZATION UNDER CHAPTER X OF THE BANKRUPTCY ACT SHOULD HAVE BEEN
DISMISSED AS NOT FILED IN "GOOD FAITH" WITHIN THE MEANING OF SEC.
146(3), (4), SINCE IT WAS UNREASONABLE TO EXPECT THAT THE COMPANY COULD
BE REORGANIZED AS A GOING CONCERN, AND SINCE THE INTERESTS OF CREDITORS
WOULD BE BEST SUBSERVED IN PRIOR PROCEEDINGS PENDING IN STATE COURTS. 
PP. 618, 619. 

2.  CHAPTER X OF THE BANKRUPTCY ACT MAY NOT BE AVAILED OF MERELY FOR
THE PURPOSE OF LIQUIDATION.  P. 621. 

FIDELITY ASSURANCE ASSOCIATION ET AL. V. SIMS, AUDITOR OF THE STATE OF
WEST VIRGINIA, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 317 U.S. 614, TO REVIEW THE REVERSAL OF AN ORDER OF THE
DISTRICT COURT, 42 F.SUPP.  973, APPROVING A PLAN OF REORGANIZATION
UNDER CHAPTER X OF THE BANKRUPTCY ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS IMPORTANT QUESTIONS CONCERNING THE CONSTRUCTION OF
CHAPTER X OF THE BANKRUPTCY ACT.  FN1  MANY STATES OF THE UNION ARE
INTERESTED BECAUSE OF THE ASSERTED INCIDENCE OF ITS PROVISIONS UPON
STATE LAWS AND RIGHTS THEREBY CREATED.  A NUMBER OF STATE OFFICERS ARE
PARTIES. 

FIDELITY ASSURANCE ASSOCIATION, A WEST VIRGINIA CORPORATION, FILED
ITS PETITION FOR REORGANIZATION IN THE DISTRICT COURT FOR SOUTHERN WEST
VIRGINIA.  THE JUDGE MADE AN ORDER APPROVING THE PETITION AS PROPERLY
FILED.  HE ALSO ENTERED ORDERS ENJOINING STATE OFFICIALS FROM DEALING
WITH PROPERTY HELD BY THEM.  FN2 

STATE BANKING AND INSURANCE COMMISSIONERS AND STATE COURT RECEIVERS
ANSWERED, ASSERTING THAT THE DEBTOR COULD NOT AVAIL ITSELF OF THE ACT
BECAUSE IT WAS AN INSURANCE COMPANY N3, AND THAT, IN ANY EVENT, THE
PETITION WAS NOT FILED IN GOOD FAITH, AS THE PHRASE IS DEFINED IN SEC.
146(3)(4) OF CHAPTER X. FN4  THE SECURITIES AND EXCHANGE COMMISSION
INTERVENED AT THE REQUEST OF THE DISTRICT COURT.  AFTER TRIAL OF THE
ISSUES, THE COURT FORMALLY APPROVED THE PETITION AND OVERRULED THE
MOTIONS TO RESCIND THE DECREES GRANTING INJUNCTIONS.  FN5  THE CIRCUIT
COURT OF APPEALS REVERSED.  FN6 

THE DEBTOR WAS ORGANIZED APRIL 11, 1911, UNDER THE NAME OF FIDELITY
INVESTMENT AND LOAN ASSOCIATION.  ITS CORPORATE PURPOSES WERE ENLARGED
IN 1912 TO INCLUDE THE SOLICITING AND RECEIVING OF PAYMENTS ON ANNUITY
CONTRACTS.  THEREBY IT BECAME SUBJECT TO THE PROVISIONS OF ART. 9 OF
CH. 33 OF THE CODE OF WEST VIRGINIA,  FN7  RELATING TO THE SELLING OF
ANNUITY CONTRACTS AND, AS THEREIN PROVIDED, TO THE SUPERVISION OF THE
AUDITOR, AS EX-OFFICIO INSURANCE COMMISSIONER OF THE STATE. 

FROM DECEMBER 1912 TO THE CLOSE OF 1940, THE COMPANY'S BUSINESS WAS
THE SELLING OF INVESTMENT CONTRACTS AND FOR THIS PURPOSE IT WAS
LICENSED IN MANY STATES.  IT ALTERED ITS CONTRACTS FROM TIME TO TIME,
BUT IN GENERAL THEY CONSISTED OF CERTIFICATES EVIDENCING THE AGREEMENT
OF THE PURCHASER TO MAKE SPECIFIED PERIODIC PAYMENTS AND THE COMPANY'S
AGREEMENT THAT UPON THE EXPIRATION OF A STIPULATED TERM IT WOULD RETURN
TO HIM IN INSTALMENTS A SUM DESIGNATED AS THE FACE AMOUNT, OR PAY A
LUMP SUM LESS THAN THE FACE AMOUNT. 

DURING THE SIX YEARS PRECEDING DECEMBER 30, 1940, THE DEBTOR SOLD A
CONTRACT HAVING A COLLATERAL INSURANCE FEATURE PROVIDED BY A BLANKET
POLICY PROCURED BY FIDELITY FROM LINCOLN NATIONAL LIFE INSURANCE
COMPANY.  APPROXIMATELY SEVENTY-FIVE PER CENT OF THE CONTRACTS ISSUED
AFTER 1934 CONTAINED THIS FEATURE. 

IT WILL BE SEEN THAT THE BUSINESS WAS ESSENTIALLY THE CONDUCT OF A
COMPULSORY SAVINGS PLAN.  THE INTEREST PAID A CERTIFICATE HOLDER WAS AT
A LOW RATE AND THE PENALTY FOR FAILURE TO KEEP A CERTIFICATE ALIVE WAS
HEAVY.  THE EXPENSE OF SELLING THE CONTRACTS WAS INORDINATELY HIGH AND,
IN SPITE OF A LARGE VOLUME OF SALES, THE COMPANY WAS CONSTANTLY FALLING
BEHIND AND SUFFERING SERIOUS LOSSES. 

THE PRESENT INSURANCE COMMISSIONER OF WEST VIRGINIA TOOK OFFICE IN
1933.  IT WAS HIS DUTY TO REQUIRE AND APPROVE THE DEPOSIT WITH THE
STATE TREASURER OF BONDS AND SECURITIES TO BE HELD IN TRUST FOR THE
BENEFIT OF THE COMPANY'S WEST VIRGINIA CONTRACT HOLDERS TO AN AMOUNT
EQUAL TO THE CASH LIABILITY TO THEM; TO REQUIRE A SIMILAR DEPOSIT IN
TRUST FOR THE BENEFIT OF HOLDERS LOCATED IN OTHER STATES TO THE EXTENT
THAT THE LAWS OF SUCH STATES DID NOT PROVIDE FOR A DEPOSIT EQUAL TO, OR
GREATER THAN, THAT CALLED FOR BY THE LAWS OF WEST VIRGINIA.  SHORTLY
AFTER TAKING OFFICE, THE COMMISSIONER DISCOVERED THAT THE COMPANY WAS
INSOLVENT.  THERE IS A LONG HISTORY OF NEGOTIATIONS AND REQUIREMENTS,
EXTENDING ALMOST TO THE TIME OF FILING THE PETITION, IN AN EFFORT TO
RESTORE IT TO A SOLVENT CONDITION. 

THE COMPANY WAS AT ONE TIME LICENSED IN TWENTY-NINE STATES, EACH OF
WHICH HAD LAWS REGULATING ITS BUSINESS.  FIFTEEN REQUIRED A DEPOSIT OF
APPROVED INVESTMENT OBLIGATIONS WITH SOME STATE OFFICIAL TO SECURE
PAYMENT OF OUTSTANDING CONTRACTS HELD BY RESIDENTS; THE REMAINDER HAD
NO SUCH REQUIREMENT, BUT THE CONTRACTS SOLD IN THESE STATES WERE
SECURED BY THE DEPOSIT MADE WITH WEST VIRGINIA.  FN8  AS OF THE DATE OF
THE FILING OF THE DEBTOR'S PETITION, THE DEPOSITS MADE WITH VARIOUS
STATES, INCLUDING WEST VIRGINIA, AMOUNTED, ACCORDING TO THE DEBTOR'S
FIGURES, TO $20,056,680.27, AGAINST A NET RESERVE LIABILITY OF
$24,221,651.36.  IN ADDITION, THE COMPANY HAD SECURITIES, NOT DEPOSITED
ANYWHERE, VALUED AT $556,467.51, MOST OF WHICH WERE INELIGIBLE FOR
DEPOSIT UNDER THE LAWS OF ANY STATE; AND $500,000 IN CASH. 

EACH OF THE SERIES OF CONTRACTS SOLD BY FIDELITY EMBODIED PROVISIONS
FOR THE CREATION AND MAINTENANCE OF A RESERVE FUND.  ALL OF THE
CONTRACTS PROVIDED THAT THE RESERVE FUND MAINTAINED BY THE COMPANY
SHOULD BE INVESTED IN APPROVED SECURITIES AND DEPOSITED IN TRUST AS
REQUIRED BY THE LAWS OF WEST VIRGINIA.  SECURITIES PURCHASED WITH THE
MONEYS PAID BY THE CONTRACT HOLDERS WERE DEPOSITED WITH THE TREASURER
OF WEST VIRGINIA AND OFFICIALS OF OTHER STATES IN COMPLIANCE WITH THEIR
RESPECTIVE LAWS, BUT NO EFFECTIVE EFFORT WAS MADE TO DESIGNATE THE
SOURCE OF THE FUNDS WITH WHICH SECURITIES WERE PURCHASED SO AS TO
IDENTIFY THE LATTER AS BELONGING TO THE RESERVE OF ANY SERIES, NOR DID
THE STATE AUTHORITIES MAKE ANY SUCH ALLOCATION.  THE SECURITIES ON
DEPOSIT WITH THE STATES WERE AT ALL TIMES TREATED BY THE DEBTOR, AND
STATE AUTHORITIES, AS SECURING ALL OBLIGATIONS TO CONTRACT HOLDERS IN
THE STATE WHERE EACH DEPOSIT WAS MADE, AND REPORTS BY THE COMPANY TO
THE STATES RESPECTING TOTAL LIABILITIES FAILED TO SHOW SUCH LIABILITIES
BY FUNDS OR SERIES.  THERE WERE CERTIFICATE HOLDERS IN ALL FORTY-EIGHT
STATES, THE DISTRICT OF COLUMBIA, AND FOREIGN COUNTRIES. 

DECEMBER 14, 1938, THE SECURITIES AND EXCHANGE COMMISSION SOUGHT AN
INJUNCTION IN A FEDERAL COURT, ALLEGING THE COMPANY WAS ENGAGED IN ACTS
AND PRACTICES VIOLATIVE OF THE FRAUD PROVISIONS OF SEC. 17(A) OF THE
SECURITIES ACT OF 1933.  FN9  THIS SUIT RESULTED IN AN INJUNCTION; AND
WAS FOLLOWED BY ANOTHER FOR APPOINTMENT OF A RECEIVER IN A FEDERAL
COURT IN WEST VIRGINIA, WHICH WAS DISMISSED.  FN10 

PRIOR TO 1938 THE DEBTOR HAD MADE EFFORTS TO OBTAIN FRESH CAPITAL TO
BE USED IN REORGANIZING ITS BUSINESS.  AFTER 1938 THE EFFORT WAS
CONTINUOUS, BUT NO CAPITAL WAS FORTHCOMING. 

DESPITE ENORMOUS SALES,  FN11  THE COMPANY COULD NOT ATTAIN A SOLVENT
POSITION.  MOREOVER, THE PUBLICITY ENSUING THE TWO SUITS RESULTED IN
THE SURRENDER OF MANY CONTRACTS, THE TEMPORARY SUSPENSION OF THE SALE
OF NEW CERTIFICATES, AND A SERIOUS DIMINUTION OF SALES WHEN ACTIVITY
WAS RESUMED.  FN12 

PURSUANT TO THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935,  FN13
THE SECURITIES AND EXCHANGE COMMISSION CONDUCTED AN INVESTIGATION AND
REPORTED ITS FINDINGS RESPECTING FIDELITY'S BUSINESS AND OTHER MATTERS
TO CONGRESS ON MARCH 13, 1940.  AS A RESULT, THE INVESTMENT COMPANY ACT
OF AUGUST 22, 1940,  FN14  WAS ADOPTED.  FIDELITY'S OFFICERS AND
DIRECTORS REALIZED THAT THE COMPANY COULD NOT MEET THE STATUTORY
REQUIREMENTS AND SURVIVE.  THEY THEREFORE CAST ABOUT FOR SOME OTHER
BUSINESS TO WHICH THE CORPORATE RESOURCES MIGHT BE DEVOTED.  THEY HIT
UPON LIFE INSURANCE. 

ACCORDINGLY, ON DECEMBER 31, 1940, THE DEBTOR AMENDED ITS CHARTER. 
THE AMENDMENT CHANGED ITS NAME TO FIDELITY ASSURANCE ASSOCIATION,
ELIMINATED THE EXISTING CORPORATE POWERS AND PURPOSES, AND ADOPTED AS
THE CORPORATE PURPOSE "TO ISSUE INSURANCE UPON THE LIVES OF PERSONS AND
EVERY INSURANCE APPERTAINING THERETO AND CONNECTED THEREWITH, AND TO
GRANT, PURCHASE, AND DISPOSE OF ANNUITIES."  IN JANUARY 1941, BY
CHARTER AMENDMENT, THE AUTHORIZED CAPITAL STOCK WAS ALTERED IN ORDER TO
QUALIFY THE COMPANY TO TRANSACT A LIFE INSURANCE BUSINESS IN WEST
VIRGINIA AND ELSEWHERE.  THE COMPANY ALSO REGISTERED UNDER SEC. 8A OF
THE INVESTMENT COMPANY ACT, SUPRA, SO THAT IT MIGHT CONTINUE TO SERVICE
OUTSTANDING CONTRACTS.  THE INSURANCE COMMISSIONER OF WEST VIRGINIA
ISSUED A LICENSE FOR THE CONDUCT OF AN INSURANCE BUSINESS, BUT WITH THE
UNDERSTANDING THAT NO SUCH BUSINESS SHOULD BE WRITTEN UNTIL THE
COMPANY'S AFFAIRS HAD BEEN PUT INTO SATISFACTORY ORDER. 
NOTWITHSTANDING THIS ARRANGEMENT, THE COMPANY, BY WRITTEN NEGOTIATIONS,
PROCURED SOME 9,800 OF ITS CERTIFICATE HOLDERS TO ACCEPT AN AMENDMENT
OF THEIR OUTSTANDING CERTIFICATES PROVIDING AN INSURANCE OBLIGATION ON
THE PART OF THE COMPANY. 

AT THE INSTANCE OF THE INSURANCE COMMISSIONER, THE ATTORNEY GENERAL
OF WEST VIRGINIA, ON APRIL 11, 1941, INSTITUTED PROCEEDINGS FOR THE
APPOINTMENT OF A RECEIVER IN THE CIRCUIT COURT OF KANAWHA COUNTY.  THE
COMPANY ENTERED AN APPEARANCE BUT INTERPOSED NO ANSWER OR OBJECTION. 
THE COURT APPOINTED RECEIVERS WHO TOOK OVER THE CASH AND UNDEPOSITED
SECURITIES BUT DID NOT ESSAY TO OBTAIN POSSESSION OF THE ASSETS ON
DEPOSIT WITH THE TREASURER OF WEST VIRGINIA OR WITH OFFICIALS OF OTHER
STATES.  THE AUTHORITIES OF THE VARIOUS STATES WERE NOTIFIED OF THE
PENDENCY OF THIS SUIT.  THEREAFTER, PROCEEDINGS WERE INSTITUTED OR
STEPS TAKEN BY STATE OFFICERS, PURSUANT TO STATE LAW, FOR THE
LIQUIDATION OF THE COMPANY'S OBLIGATIONS TO LOCAL CERTIFICATE HOLDERS
IN WISCONSIN, IOWA, OHIO, ILLINOIS, TENNESSEE, MISSOURI, INDIANA,
KENTUCKY, MARYLAND, AND PENNSYLVANIA. 

THE RESPONDENTS, OTHER THAN SECURITIES AND EXCHANGE COMMISSION,
CONTENDED BELOW, AND URGE HERE, THAT THE PETITION SHOULD BE DISMISSED,
SINCE (1) THE DEBTOR IS AN INSURANCE COMPANY EXEMPTED FROM THE
PROVISIONS OF THE BANKRUPTCY ACT, (2) THE PETITION WAS NOT FILED IN
GOOD FAITH.  THE DEBTOR, THE TRUSTEE APPOINTED UNDER CHAPTER X, AND THE
COMMISSION, SUCCESSFULLY OPPOSED THESE CONTENTIONS IN THE DISTRICT
COURT.  THE CIRCUIT COURT OF APPEALS HELD WITH THE RESPONDENTS ON BOTH
GROUNDS.  WE FIND IT UNNECESSARY TO CONSIDER OR DECIDE WHETHER, AT THE
DATE OF FILING, THE DEBTOR WAS AN INSURANCE COMPANY WITHIN THE MEANING
OF THE ACT, FOR WE THINK THE CIRCUIT COURT OF APPEALS WAS RIGHT IN
HOLDING THE PETITION NOT FILED IN GOOD FAITH AS THE PHRASE IS DEFINED
IN SEC. 146(3) AND (4). 

THE PETITION "HAS BEEN FILED IN GOOD FAITH" HE SHALL DISMISS IT.  THE
RELEVANT PORTIONS OF SEC. 146  FN16  ARE THAT "A PETITION SHALL BE
DEEMED NOT TO BE FILED IN GOOD FAITH IF  ...  (3) IT IS UNREASONABLE TO
EXPECT THAT A PLAN OF REORGANIZATION CAN BE EFFECTED; OR (4) A PRIOR
PROCEEDING IS PENDING IN ANY COURT AND IT APPEARS THAT THE INTERESTS OF
CREDITORS AND STOCKHOLDERS WOULD BE BEST SUBSERVED IN SUCH PRIOR
PROCEEDING." 

AS THE COURT BELOW HAS SAID, IN APPLYING THE STATUTORY TEST THE
SITUATION SHOULD BE VIEWED REALISTICALLY.  IF THIS BE DONE, WE THINK
THE REJECTION BY THE COURT BELOW OF THE CLAIM OF THE DEBTOR AND ITS
TRUSTEE THAT IT CAN BE REORGANIZED AS A GOING CONCERN MUST BE
AFFIRMED.  IN APPRAISING THE SOUNDNESS OF THIS CLAIM, CERTAIN FACTS
ADDITIONAL TO THOSE ALREADY NOTICED MUST BE KEPT IN MIND.  ON APRIL 10,
1941, THERE WERE 87,999 CONTRACTS OUTSTANDING FOR A FACE AMOUNT OF
$181,948,026.70.  AT THAT TIME, LIABILITIES EXCEEDED ASSETS, ON THE
COMPANY'S SHOWING, BY $2,500,000.  THE BUSINESS WRITTEN IN 1940 HAD
SHRUNK TO 23% OF THAT WRITTEN IN 1938.  THE COMPANY HAD BEEN LOSING
MONEY AT THE RATE OF $250,000 PER ANNUM.  ITS SALE OF INVESTMENT
CERTIFICATES HAD CEASED DECEMBER 30, 1940, AND, EVEN IF IT HAD BEEN
POSSIBLE TO RESUME THIS ACTIVITY IN COMPLIANCE WITH THE REQUIREMENTS OF
THE INVESTMENT COMPANY ACT, THE REESTABLISHMENT OF THE SALES FORCE
WOULD HAVE COST $500,000. 

IN THE LIGHT OF ALL RELEVANT FACTS, IT SEEMS CLEAR THAT FIDELITY
CANNOT BE REORGANIZED FOR THE PURPOSE OF CONDUCTING ITS OLD BUSINESS OF
SELLING INVESTMENT CERTIFICATES.  CONVICTION THAT THIS WAS SO LED ITS
MANAGERS TO ATTEMPT TO ALTER ITS CORPORATE PURPOSES TO THOSE OF A LIFE
INSURANCE COMPANY.  THE DISTRICT JUDGE SAID:  "IT IS TRUE THAT THE
BROAD PICTURE DEVELOPED BY THE TESTIMONY AT THE HEARING DOES NOT
PRESENT A VERY FAVORABLE VIEW WITH RESPECT TO THE REHABILITATION AND
CONTINUED OPERATION OF THE DEBTOR AS A FACE AMOUNT CERTIFICATE
COMPANY."  AND HE ADDED:  "IT IS EXTREMELY DOUBTFUL WHETHER, IN VIEW OF
UNSETTLED ECONOMIC CONDITIONS AND THE CRITICAL INTERNATIONAL SITUATION,
THE FIDELITY PLAN WOULD ANY LONGER APPEAL TO A LARGE PUBLIC; BUT IT IS
NOT IMPOSSIBLE; AND IT IS NOT THE DUTY OF THE COURT TO DECIDE FOR THE
PUBLIC THAT INVESTORS WILL NOT OR SHOULD NOT BUY THESE CONTRACTS IN THE
FUTURE." 

THERE IS NO PROSPECT THAT THE DEBTOR CAN BE REORGANIZED AS AN
INSURANCE COMPANY, AND THE DISTRICT JUDGE DID NOT FIND THAT IT COULD. 

THE PETITIONERS SAY:  "UPON THIS RECORD, CAN IT BE SAID THAT IT IS
UNREASONABLE TO EXPECT THAT SOME INSURANCE OR INVESTMENT COMPANY CAN BE
FOUND TO TAKE OVER OR BUY THE ASSETS OF FIDELITY UNDER A CONTRACT FOR
THE BENEFIT OF THE FIDELITY CONTRACT HOLDERS, TO ISSUE THEM INVESTMENT
CERTIFICATES OR INSURANCE POLICIES, OF ONE OR MORE KINDS OF GREATER
VALUE THAN THE DIVIDENDS TO SUCH CONTRACT HOLDERS THROUGH THE
LIQUIDATION OF FIDELITY WOULD BUY?"    THE COURT BELOW PROPERLY
CONCLUDED THAT "THE POSSIBILITY THAT THOUSANDS OF CONTRACT HOLDERS
COULD BE PERSUADED TO MODIFY THEIR CONTRACTS AND SCALE DOWN THEIR
CLAIMS  FN17  TO ENABLE THE COMPANY TO GO ON IS SO REMOTE AS TO EXIST
ONLY IN THE IMAGINATION." 

PETITIONERS AND SECURITIES AND EXCHANGE COMMISSION URGE, HOWEVER,
THAT CHAPTER X MAY BE EMPLOYED TO ACCOMPLISH A SLOW AND ORDERLY
LIQUIDATION WHICH THEY SAY IS IMPERATIVE IN THE INTEREST OF ALL
CREDITORS.  THE DISTRICT COURT SO HELD. 

IT MUST BE REMEMBERED THAT FIDELITY IS ADMITTEDLY INSOLVENT AND NO
ONE SUGGESTS THERE IS ANY EQUITY IN ITS STOCK; THAT THERE IS ONE
GREATLY PREPONDERANT CLASS OF CREDITORS,  - CERTIFICATE HOLDERS - ALL
HAVING SECURITY FOR THEIR CLAIMS ON ONE OR MORE DEPOSITS WITH STATE
AUTHORITIES, AND ALL HAVING UNSECURED CLAIMS AGAINST THE UNPLEDGED
ASSETS OF THE DEBTOR.  THE NECESSITY FOR DECISION AS TO THE RELATIVE
RIGHTS OF THESE CLASSES IN PLEDGED ASSETS MAY PRESENT DIFFICULT
QUESTIONS OF DISTRIBUTION, BUT HAS LITTLE, IF ANY, BEARING UPON THE
METHOD OF TURNING THE DEBTOR'S ASSETS INTO MONEY. 

THE DEPOSITED SECURITIES ARE GENERALLY READILY MARKETABLE AT
FAVORABLE PRICES.  THEY ARE SCATTERED THROUGH FIFTEEN STATES, IN HANDS
OF PUBLIC OFFICIALS WHOSE DUTY IT IS TO LIQUIDATE THEM ON TERMS MOST
FAVORABLE TO THOSE FOR WHOSE PROTECTION THEY STAND PLEDGED.  THE
SUGGESTION THAT THESE QUASI-TRUSTEES WILL FORCE THE SECURITIES ON THE
MARKET WITHOUT REGARD TO ITS ABILITY TO ABSORB THEM, TO THE DESTRUCTION
OF THEIR BENEFICIARIES' SECURITY, IS INADMISSIBLE, AND, IN ADDITION, IS
CONTRARY TO WHAT OCCURRED AFTER THE INSTITUTION OF THE WEST VIRGINIA
RECEIVERSHIP.  THERE IS NO FOUNDATION FOR THE POSITION THAT THE SO
CALLED REORGANIZATION SHOULD TAKE THE FORM OF THE CREATION OF A NEW
CORPORATION TO WHICH ALL THESE SECURITIES WOULD BE TRANSFERRED FOR
CONVERSION INTO CASH, PARTICULARLY AS THE ADVOCATES OF SUCH A PROJECT
ADMIT THAT THE APPLICATION OF THE SECURITY AFFORDED CLASSES OF
CERTIFICATE HOLDERS ACCORDING TO STATE LAW CANNOT BE AVOIDED IN ANY
DISTRIBUTION OF ASSETS. 

IT IS URGED THAT A PLAN OF LIQUIDATION MAY CONSTITUTE A
REORGANIZATION UNDER CHAPTER X, AND DECISIONS ARE CITED TO THAT POINT,
FN18  BUT AN EXAMINATION OF THEM WILL DEMONSTRATE THAT IN NONE SAVE
WHERE THE CORPORATE PURPOSE OF THE DEBTOR WAS, IN EFFECT, HOLDING AND
LIQUIDATING SECURITIES WAS THE PLAN SUCH AS IS PROPOSED HERE.  UNDER
THE FACTS OF THIS CASE, THE SUGGESTED PLAN IS BUT AN ALTERNATIVE FOR
ORDINARY BANKRUPTCY, WITHOUT ANY READJUSTMENT OF THE RIGHTS OF
CREDITORS AND STOCKHOLDERS INTER SE, AND THIS FACT SERVES TO
DISTINGUISH THE REMAINING CASES ON WHICH RELIANCE IS PLACED. 

WE CONCLUDE THAT, IN THIS ASPECT, GOOD FAITH, IN THE STATUTORY SENSE,
IS LACKING, SINCE NO SUCH REORGANIZATION AS THE STATUTE WAS INTENDED TO
ACCOMPLISH IS REASONABLY TO BE EXPECTED. 

IN THE SECOND PLACE, WE HOLD THAT THE INTERESTS OF CREDITORS WOULD BE
BEST SUBSERVED IN THE PENDING PRIOR PROCEEDINGS IN WEST VIRGINIA AND
OTHER STATES.  THE COURT BELOW WAS OF THIS OPINION FOR THESE REASONS:
IT APPEARS UNLIKELY THAT THERE WILL BE ANY SURPLUS AFTER PAYMENT OF
LOCAL CLAIMANTS IN ANY STATE OTHER THAN WEST VIRGINIA; STATE LAW MUST
GOVERN THE DISTRIBUTION OF THE RESPECTIVE DEPOSITS; CREDITORS CAN AS
READILY PRESENT CLAIMS AGAINST THE SURPLUS OF THE WEST VIRGINIA DEPOSIT
IN THE WEST VIRGINIA COURT AS IN THE FEDERAL COURT IN THIS PROCEEDING. 

THE SECURITIES AND EXCHANGE COMMISSION INSISTS THAT THE CHAPTER X
PROCEEDING IS MORE ADVANTAGEOUS AS AFFORDING OPPORTUNITY FOR IMPARTIAL
INVESTIGATION OF WRONGDOING BY COMPANY OFFICERS, AND THE SOLUTION OF
PROBLEMS OF MARSHALLING AND DISTRIBUTION.  IF, AS THE COURT BELOW HELD,
NOTHING IS TO BE ACCOMPLISHED BUT THE LIQUIDATION OF FIDELITY, IT IS
DIFFICULT TO SEE WHY THAT PROCESS AND CONSEQUENT DISTRIBUTION OF THE
PROCEEDS SHOULD BE HELD UP BY THE SEARCH FOR CAUSES OF ACTION AGAINST
OFFICERS AND DIRECTORS.  NOR IS ANY CONVINCING SHOWING MADE THAT SUCH
INVESTIGATION CANNOT, OR WILL NOT, BE MADE AND AVAILED OF BY THE STATE
COURT RECEIVERS.  MOREOVER, IF FIDELITY IS NOT AN INSURANCE COMPANY, IT
COULD HAVE BEEN PUT INTO ORDINARY BANKRUPTCY, ORDERLY LIQUIDATION
ACCOMPLISHED, AND IMPARTIAL INVESTIGATION MADE BY A TRUSTEE ELECTED BY
THE CREDITORS. 

THERE ARE NO TRUE PROBLEMS OF MARSHALLING PRESENTED.  CREDITORS IN
THE VARIOUS STATES WILL UNQUESTIONABLY GO FIRST AGAINST THE LOCAL
DEPOSITS.  THEY MAY, OR MAY NOT, BE PAID IN FULL FROM THOSE FUNDS. 
THEY WILL HAVE CLAIMS AGAINST THE SURPLUS OF THE WEST VIRGINIA FUND FOR
ANY DEFICIENCY.  ON THE OTHER HAND, A SURPLUS IN A STATE FUND AFTER
SATISFACTION OF LOCAL CREDITORS, WILL BE ADDED TO THE SURPLUS FUND IN
WEST VIRGINIA FOR THE BENEFIT OF ALL HAVING CLAIMS AGAINST IT.  RIGHTS
AGAINST LOCAL DEPOSITS WILL BE ADJUDICATED BY THE COURTS OF THE STATES,
NEAR THE HOMES OF THE BENEFICIARIES AND AT A MINIMUM OF INCONVENIENCE,
DELAY, AND EXPENSE.  THE ADVANTAGES OF BRINGING ALL THESE FUNDS TO THE
DISTRICT COURT FOR ADMINISTRATION IN CONFORMITY TO DIVERSE STATE LAW,
AND COMPELLING CLAIMANTS TO COME THERE TO ASSERT THEIR RIGHTS, ARE NOT
APPARENT. 

IT IS SAID, HOWEVER, THAT FIDELITY AGREED TO SEGREGATE THE RESERVE
FUND OF EACH SERIES, AND THAT THE HOLDERS OF CERTIFICATES IN ANY SERIES
ARE ENTITLED TO HAVE THE SECURITIES PURCHASED FOR THE RESERVE OF THAT
SERIES TRACED AND SET APART FOR THEIR BENEFIT, AND THAT THIS CAN BE
DONE ONLY IN THE PRESENT PROCEEDING BY BRINGING ALL THE FUNDS UNDER A
SINGLE ADMINISTRATION. 

WITHOUT RECITING THE FACTS IN DETAIL, IT IS ENOUGH TO SAY THAT, WHILE
THE DIFFERENT RESERVE FUNDS WERE SEPARATELY SET UP ON THE BOOKS OF THE
COMPANY, THEY WERE, FOR THE GREATER PART OF THE PERIOD IN QUESTION,
KEPT IN A SINGLE BANK ACCOUNT, AND THE SECURITIES PURCHASED FOR THE
VARIOUS RESERVE FUNDS WERE NOT EARMARKED AS SUCH.  MOREOVER, FOR THE
MOST PART, SECURITIES DEPOSITED WITH STATE AUTHORITIES WERE NOT, AT THE
TIME OF THE DEPOSIT, DESIGNATED AS BELONGING TO THE RESERVE FUND FOR
ANY SERIES OF CONTRACTS.  IN SOME INSTANCES, DESIGNATIONS OF THEM WERE
MADE SUBSEQUENT TO THEIR DEPOSIT.  IN ADDITION, IT IS TO BE NOTED THAT
UNDER THE LAW OF WEST VIRGINIA, AND THAT OF OTHER STATES HAVING
DEPOSITS, THE SECURITIES DEPOSITED ARE MADE A COMMON FUND FOR THE
PROTECTION OF ALL OUTSTANDING CONTRACTS, AND THE CERTIFICATE HOLDERS
WERE ADVISED BY THE COMPANY IN ITS LITERATURE THAT IT PROPOSED TO
DEPOSIT RESERVE FUND SECURITIES IN ACCORDANCE WITH THE LAW OF THE
STATES.  THE SITUATION DISCLOSES SO MANY DIFFICULTIES OF LAW AND FACT
AS TO RENDER SEGREGATION FOR PURPOSES OF DISTRIBUTION OF THE AVAILS OF
THE SECURITIES IMPROBABLE.  AND THE SMALLNESS OF THE AVERAGE AMOUNT DUE
CERTIFICATE HOLDERS INDICATES THAT THE EXPENSE OF THE EFFORT, IF
SUCCESSFUL, WOULD, IN THE END, PROVE MORE DETRIMENTAL TO A CLAIMANT
THAN FOREGOING THE TRIFLING ADVANTAGE OF A REALLOCATION OF SECURITIES
TO THE RESPECTIVE RESERVE FUNDS. 

IT WAS SUGGESTED AT THE BAR THAT, EVEN IF LIQUIDATION IS ALL THAT CAN
BE HOPED, THIS WOULD BE BETTER MANAGED BY A SINGLE BANKRUPTCY COURT
THAN IN SEVERAL SEPARATE PROCEEDINGS.  THE DIFFICULTY WITH THE
SUGGESTION IS THAT CONGRESS DID NOT INTEND RESORT TO CHAPTER X TO BE
HAD FOR THE MERE PURPOSE OF LIQUIDATION.  THE SCHEME OF THE CHAPTER
PRECLUDES ANY SUCH CONCLUSION.  THE MANDATE OF SEC. 144 IS CLEAR THAT
UNLESS THE JUDGE IS SATISFIED THE PETITION WAS FILED IN GOOD FAITH HE
MUST DISMISS IT.  UNDER THE PREDECESSOR OF CHAPTER X - SEC. 77B OF THE
BANKRUPTCY ACT - THE DISTRICT JUDGE WAS GIVEN AUTHORITY, BY SUBSECTION
(C)(8),  FN19  UNDER CERTAIN CIRCUMSTANCES, TO "DIRECT THE ESTATE TO BE
LIQUIDATED, OR DIRECT THE TRUSTEES TO LIQUIDATE THE ESTATE  ...  "  IN
CHAPTER X, ON THE OTHER HAND, SEC. 236(2)  FN20  PROVIDES THAT IF NO
PLAN IS APPROVED OR ACCEPTED, OR IF IT IS NOT CONSUMMATED, THE JUDGE
MAY, AFTER HEARING ALL PERSONS IN INTEREST, ADJUDGE THE DEBTOR A
BANKRUPT OR DISMISS THE PROCEEDING, AS HE MAY DECIDE IS IN THE INTEREST
OF CREDITORS AND STOCKHOLDERS.  THUS THE STATUTE DOES NOT CONTEMPLATE A
LIQUIDATION IN A CHAPTER X PROCEEDING BUT A LIQUIDATION IN ORDINARY
BANKRUPTCY OR A DISMISSAL OUTRIGHT. 

IF THE LIQUIDATION OF FIDELITY'S AFFAIRS IN BANKRUPTCY HAD BEEN
PROPOSED AT THE START, THE PETITION IN BANKRUPTCY COULD NOT HAVE BEEN
FILED IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA,
IN WHICH THIS PROCEEDING IS PENDING.  A CHAPTER X PROCEEDING MAY, UNDER
SEC. 128,  FN21  BE INITIATED EITHER AT THE PRINCIPAL PLACE OF BUSINESS
OF THE CORPORATION OR WHERE IT HAS ITS PRINCIPAL ASSETS.  THE PRESENT
PROCEEDING WAS INITIATED IN THE SOUTHERN DISTRICT ON THE GROUND THAT
THE PRINCIPAL ASSETS OF THE COMPANY ARE LOCATED AT CHARLESTON IN THAT
DISTRICT, IN THE POSSESSION OF THE STATE TREASURER.  UNDER SEC. 2 OF
THE BANKRUPTCY ACT,  FN22  AN ORDINARY BANKRUPTCY MAY BE INITIATED ONLY
AT THE CORPORATION'S PRINCIPAL PLACE OF BUSINESS, WHICH IS WHEELING, IN
THE NORTHERN DISTRICT OF WEST VIRGINIA. 

CONGRESS DID NOT INTEND A CHAPTER X CASE TO BE TURNED INTO A
LIQUIDATION PROCEEDING AT THE OUTSET, BUT INTENDED THE LITIGATION TO
BECOME A STRAIGHT BANKRUPTCY ONLY AFTER THE FAILURE TO CONSUMMATE A
PLAN, AND MEANT TO LIMIT THE PARTIES TO THEIR REMEDY IN ORDINARY
BANKRUPTCY IN ALL OTHER CASES.  IT WOULD, THEREFORE, BE A PERVERSION OF
THE CONGRESSIONAL INTENT TO TREAT THE PRESENT AS A LIQUIDATION
PROCEEDING, SINCE THE RIGHTS OF PERSONS HAVING LIENS OR SECURITY
PLEDGED FOR THEIR CLAIMS DIFFER WIDELY IN THE TWO SORTS OF BANKRUPTCY. 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF JUNE 22, 1938, 52 STAT. 840, 883; 11 U.S.C. SECS. 501
676, INCLUSIVE. 

FN2  AN APPEAL WAS TAKEN FROM THE DISTRICT COURT'S REFUSAL TO RESCIND
THE ORDERS.  THE CIRCUIT COURT OF APPEALS REFUSED TO DISTURB THEM AT
THAT STAGE OF THE PROCEEDING.  SIMS V. CENTRAL TRUST CO., 123 F.2D 89. 

FN3  ACT OF JULY 1, 1898, C. 541, SEC. 4, 30 STAT. 547, AS AMENDED,
11 U.S.C. SEC. 22. 

FN4  11 U.S.C. SEC. 546. 

FN5  42 F.SUPP.  973. 

FN6  129 F.2D 442. 

FN7  MICHIE'S W. VA. CODE 1937, P. 1204 FF.  THIS ARTICLE WAS
REPEALED BY CHAPTER 46, SEC. 12, ACTS OF WEST VIRGINIA, 1941, EFFECTIVE
NINETY DAYS FROM MARCH 8, 1941, BUT THIS FACT IS IRRELEVANT TO ANY
ISSUE IN THIS CASE. 

FN8  THE SECURITY AFFORDED BY THESE LAWS WAS STRESSED BY SALES AGENTS
AND WAS EFFECTIVE IN THE PROCUREMENT OF CONTRACTS. 

FN9  ACT OF MAY 27, 1933, C. 38, TIT. I, SEC. 17, 48 STAT. 84, 15
U.S.C. SEC. 77Q. 

FN10  MCCAMMON V. FIDELITY INVESTMENT ASSN., 26 F.SUPP.  117,
AFFIRMED HUTCHINSON V. FIDELITY INVESTMENT ASSN., 106 F.2D 431. 

FN11  THE GROSS BUSINESS WRITTEN IN 1938 WAS $52,000,000. 

FN12  SALES IN 1940 WERE $12,000,000. 

FN13  ACT OF AUGUST 26, 1935, C. 687, TIT. I, SEC. 30, 49 STAT. 837,
15 U.S.C. SEC. 79Z-4. 

FN14  C. 686, 54 STAT. 789, 15 U.S.C. SEC. 80A-1 ET SEQ. 

FN15  11 U.S.C. SEC. 544. 

FN16  11 U.S.C. SEC. 546. 

FN17  THE CLAIMS AVERAGE LESS THAN $273 EACH. 

FN18  IN RE CENTRAL FUNDING CORP., 75 F.2D 256; IN RE MORTGAGE
SECURITIES CORP., 75 F.2D 261; CONTINENTAL INS. CO. V. LOUISIANA OIL
RFG.  CORP., 89 F.2D 333; R.L. WITTERS ASSOCIATES V. EBSARY GYPSUM CO.,
93 F.2D 746; IN RE PORTO RICAN AMERICAN TOBACCO CO., 112 F.2D 655. 

FN19  11 U.S.C. SEC. 207(C)(8). 

FN20  11 U.S.C. SEC. 636(2). 

FN21  11 U.S.C. SEC. 528. 

FN22  11 U.S.C. SEC. 11. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE RUTLEDGE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :



MYERS V. MATLEY, 318 U.S. 622 


NO. 540.  ARGUED MARCH 5, 1943.  - DECIDED APRIL 5, 1943.  - 130 F.2D
775, AFFIRMED. 


1.  UNDER SEC. 70(A) OF THE BANKRUPTCY ACT, ORIGINALLY AND AS AMENDED
IN 1938, A HOMESTEAD IS EXEMPT IN BANKRUPTCY IF, UNDER THE STATE LAW,
IT WAS EXEMPT FROM LEVY AND SALE WHEN THE PETITION IN BANKRUPTCY WAS
FILED.  P. 625. 

2.  WHITE V. STUMP, 266 U.S. 310, DISTINGUISHED.  P. 625. 

3.  HISTORICALLY, AND UNDER THE THEORY OF THE PRESENT ACT, BANKRUPTCY
HAS THE FORCE AND EFFECT OF THE LEVY OF AN EXECUTION FOR THE BENEFIT OF
CREDITORS TO INSURE AN EQUITABLE DISTRIBUTION AMONGST THEM OF THE
BANKRUPT'S ASSETS.  THE TRUSTEE IS VESTED NOT ONLY WITH THE TITLE OF
THE BANKRUPT BUT CLOTHED WITH THE RIGHT OF AN EXECUTION CREDITOR WITH A
LEVY ON THE PROPERTY WHICH PASSES INTO THE TRUSTEE'S CUSTODY.  P. 627. 

4.  THE LAW OF NEVADA ENTITLES A DEBTOR TO HIS HOMESTEAD EXEMPTION,
IF THE SELECTION OF THE PROPERTY AND FILING FOR RECORD OF THE
DECLARATION OF INTENTION OCCUR AT ANY TIME BEFORE ACTUAL JUDICIAL
SALE.  P. 627. 

MYERS, TRUSTEE, V. MATLEY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 317 U.S. 621, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT, 47 F.SUPP.  558, SUSTAINING A CLAIM OF HOMESTEAD
EXEMPTION AND OVERRULING THE REFEREE'S DENIAL OF THE CLAIM. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER'S ASSERTION THAT THE COURT BELOW MISAPPLIED SEC. 70(A)
OF THE BANKRUPTCY ACT, AS AMENDED,  FN1  IN CONTRAVENTION OF A DECISION
OF THIS COURT,  FN2  AND CONTRARY TO THE LAW OF THE STATE OF NEVADA, AS
WELL AS A DIVISION OF OPINION OF THE JUDGES IN THE COURT BELOW, MOVED
US TO GRANT CERTIORARI. 

OCTOBER 24, 1940, A PETITION IN BANKRUPTCY WAS FILED AGAINST MARSHALL
R. MATLEY, THE RESPONDENT'S HUSBAND.  HE APPEARED AND CONSENTED TO AN
ADJUDICATION, WHICH WAS ENTERED THE SAME DAY.  NOVEMBER 20, 1940, THE
RESPONDENT FILED WITH THE RECORDER OF WASHOE COUNTY, NEVADA, HER
DECLARATION CLAIMING AS A HOMESTEAD A TRACT OF LAND IN RENO, NEVADA,
LISTED IN HER HUSBAND'S BANKRUPTCY SCHEDULES.  NOVEMBER 27, 1940, SHE
FILED IN THE BANKRUPTCY COURT A PETITION CLAIMING THE LAND AS EXEMPT. 
THE REFEREE DENIED HER CLAIM, THE DISTRICT COURT REVERSED THE REFEREE,
AND THE CIRCUIT COURT OF APPEALS AFFIRMED ITS DECISION.  FN3  THE REAL
ESTATE IN QUESTION, ACQUIRED BY THE RESPONDENT AND HER HUSBAND WHILE
MARRIED, WAS COMMUNITY PROPERTY, ON WHICH A RESIDENCE WAS BUILT AND
OCCUPIED BY THE COUPLE AS A HOME.  WHILE THEY WERE ABSENT FROM IT AT
TIMES, THEY ALWAYS CONSIDERED IT THEIR HOME AND INTENDED TO RETURN TO
IT.  ALTHOUGH THEY WERE SEPARATED IN 1940, THE RESPONDENT WAS RESIDING
ON THE LAND WHEN THE PETITION IN BANKRUPTCY WAS FILED.  A DIVORCE
ACTION WAS PENDING BUT WAS NOT CONCLUDED UNTIL MAY 1941, WHEN THE
RESPONDENT WAS GRANTED A DIVORCE AND THE RENO RESIDENCE WAS AWARDED HER
AS HER SOLE PROPERTY. 

THE PETITIONER ASSERTS THAT THE PROPERTY CANNOT BE SET APART TO THE
RESPONDENT AS EXEMPT, SINCE HER HOMESTEAD DECLARATION WAS NOT FILED, AS
REQUIRED BY STATE LAW, UNTIL AFTER ENTRY OF THE PETITION IN
BANKRUPTCY. 

BY OPERATION OF LAW, WITH THE TITLE OF THE BANKRUPT AS OF THE DATE HE
WAS ADJUDGED A BANKRUPT, "EXCEPT IN SO FAR AS IT IS TO PROPERTY WHICH
IS EXEMPT,  ...  "  THE PHRASEOLOGY WAS ALTERED BY THE AMENDMENT OF
1938 TO EXCEPT "PROPERTY WHICH IS HELD TO BE EXEMPT,  ...  "  SECTION 6
OF THE BANKRUPTCY ACT  FN4  DECLARES THAT THE PROVISIONS OF THE ACT
SHALL NOT AFFECT THE ALLOWANCE TO BANKRUPTS OF THE EXEMPTIONS "WHICH
ARE PRESCRIBED BY THE STATE LAWS IN FORCE AT THE TIME OF THE FILING OF
THE PETITION" IN THE STATE WHERE THE BANKRUPT HAS HAD HIS DOMICILE. 
THE TRUSTEE, AS TO ALL PROPERTY IN POSSESSION AND UNDER THE CONTROL OF
THE BANKRUPT AT THE DATE OF BANKRUPTCY, IS DEEMED VESTED, AS OF THAT
DATE, WITH ALL THE RIGHTS AND REMEDIES OF A CREDITOR THEN HOLDING A
LIEN ON THE PROPERTY BY LEGAL OR EQUITABLE PROCEEDINGS, WHETHER OR NOT
SUCH A CREDITOR ACTUALLY EXISTS.  FN5  AN ADJUDICATION IN BANKRUPTCY IS
NOT THE EQUIVALENT OF A JUDICIAL SALE, NOR IS THE TRUSTEE GIVEN THE
RIGHTS OF A PURCHASER AT SUCH A SALE. 

THE QUESTION THUS ARISES WHETHER THE RESPONDENT'S RIGHT OF HOMESTEAD
UNDER NEVADA LAW, SECURED BY HER FILED DECLARATION, PREVAILS AGAINST
THE RIGHT AND TITLE OF THE TRUSTEE.  THE COURT BELOW SO HELD AND WE
THINK ITS JUDGMENT WAS RIGHT. 

1.  WE CONCLUDE THAT THE NEW PHRASEOLOGY IN THE AMENDMENT OF SEC.
70(A) DOES NOT ALTER THE PRINCIPLES APPLICABLE TO THE EXEMPTION OF
HOMESTEAD PROPERTY IN BANKRUPTCY.  ON THE FACE OF THE LEGISLATION, THE
INTENT OF CONGRESS WAS MERELY TO CLARIFY THE MEANING OF THE SECTION. 
WE ARE REFERRED TO NO LEGISLATIVE HISTORY INDICATING THAT THE
ALTERATION WAS INTENDED TO WORK A CHANGE OF SUBSTANCE.  UNDER THE
AMENDMENT, AS UNDER THE ORIGINAL PROVISION, A HOMESTEAD IS EXEMPT IF,
UNDER THE STATE LAW, IT WOULD BE HELD TO BE EXEMPT. 

2.  WHITE V. STUMP, SUPRA, INVOLVED A HOMESTEAD EXEMPTION CLAIMED
PURSUANT TO THE LAW OF IDAHO, UNDER WHICH THE DECLARATION OF HOMESTEAD
WAS REQUIRED TO BE EXECUTED AND ACKNOWLEDGED, LIKE A CONVEYANCE OF REAL
PROPERTY, AND FILED FOR RECORD.  THE EXEMPTION AROSE WHEN THE
DECLARATION WAS FILED AND NOT BEFORE.  UP TO THAT TIME, THE LAND
REMAINED SUBJECT TO EXECUTION AND ATTACHMENT LIKE ANY OTHER LAND; AND
WHERE A LEVY WAS EFFECTED WHILE THE LAND WAS IN THAT CONDITION, THE
SUBSEQUENT MAKING AND FILING OF A DECLARATION NEITHER AVOIDED THE LEVY
NOR PREVENTED A SALE UNDER IT.  FN6 IT APPEARED THAT NO DECLARATION WAS
MADE AND FILED OF RECORD UNTIL A MONTH AFTER STUMP'S PETITION AND
ADJUDICATION IN BANKRUPTCY.  THE DECLARATION WAS THEN MADE AND FILED BY
HIS WIFE FOR HIS AND HER JOINT BENEFIT.  THIS COURT HELD THAT THE
BANKRUPTCY ACT FIXED THE POINT OF TIME WHICH IS TO SEPARATE THE OLD
SITUATION FROM THE NEW IN THE BANKRUPT'S AFFAIRS AS THE DATE WHEN THE
PETITION IS FILED; THAT WHEN THE ACT SPEAKS OF PROPERTY WHICH IS
EXEMPT, AND RIGHTS TO EXEMPTION, IT REFERS TO THAT POINT OF TIME -
NAMELY, THE POINT AS OF WHICH THE GENERAL ESTATE PASSES OUT OF THE
BANKRUPT'S CONTROL AND WITH RESPECT TO WHICH THE STATUS AND RIGHTS OF
THE BANKRUPT, THE CREDITORS, AND THE TRUSTEE IN OTHER PARTICULARS ARE
FIXED.  THE COURT SAID:  "THE EXCEPTION, AS ITS WORDS AND THE CONTEXT
SHOW, IS NOT OF PROPERTY WHICH WOULD OR MIGHT BE EXEMPT IF SOME
CONDITION NOT PERFORMED WERE PERFORMED, BUT OF PROPERTY TO WHICH THERE
IS UNDER THE STATE LAW A PRESENT RIGHT OF EXEMPTION - ONE WHICH
WITHDRAWS THE PROPERTY FROM LEVY AND SALE UNDER JUDICIAL PROCESS."  FN7
ACCORDINGLY IT WAS HELD THAT, AS THE CLAIM OF EXEMPTION WAS NOT
PERFECTED UNTIL AFTER THE PETITION WAS FILED, IT WAS INEFFECTIVE AS
AGAINST THE TRUSTEE, AS IT WOULD HAVE BEEN AGAINST A CREDITOR THEN
HAVING A LEVY ON THE PROPERTY.  IF THE LAW OF NEVADA RESPECTING
HOMESTEAD EXEMPTIONS WERE LIKE THAT OF IDAHO, OR OPERATED IN THE SAME
WAY, WHITE V. STUMP WOULD BE IN POINT. 

3.  THE NEVADA CONSTITUTION, ART. 4, SEC. 30, READS IN PART: 

"A HOMESTEAD, AS PROVIDED BY LAW, SHALL BE EXEMPT FROM FORCED SALE
UNDER ANY PROCESS OF LAW, AND SHALL NOT BE ALIENATED WITHOUT THE JOINT
CONSENT OF HUSBAND AND WIFE, WHEN THAT RELATION EXISTS; ...  AND LAWS
SHALL BE ENACTED PROVIDING FOR THE RECORDING OF SUCH HOMESTEAD WITHIN
THE COUNTY IN WHICH THE SAME SHALL BE SITUATED." 

MAY BE CLAIMED AS EXEMPT AS A HOMESTEAD AND PERMITS SELECTION BY EITHER
THE HUSBAND, THE WIFE, OR BOTH, BY A DECLARATION OF INTENTION IN
WRITING TO CLAIM THE SAME.  AFTER PROVIDING WHAT THE DECLARATION SHALL
CONTAIN AND THAT IT SHALL BE SIGNED, ACKNOWLEDGED, AND RECORDED AS
CONVEYANCES OF REAL ESTATE ARE REQUIRED TO BE ACKNOWLEDGED AND
RECORDED, THE STATUTE CONTINUES:  " ...  FROM AND AFTER THE FILING FOR
RECORD OF SAID DECLARATION, THE HUSBAND AND WIFE SHALL BE DEEMED TO
HOLD SAID HOMESTEAD AS JOINT TENANTS." 

EXECUTION,  ...  THE HOMESTEAD AS PROVIDED FOR BY LAW." 

HISTORICALLY, AND UNDER THE THEORY OF THE PRESENT ACT, BANKRUPTCY HAS
THE FORCE AND EFFECT OF THE LEVY OF AN EXECUTION FOR THE BENEFIT OF
CREDITORS TO INSURE AN EQUITABLE DISTRIBUTION AMONGST THEM OF THE
BANKRUPT'S ASSETS.  FN8  THE TRUSTEE IS VESTED NOT ONLY WITH THE TITLE
OF THE BANKRUPT BUT CLOTHED WITH THE RIGHT OF AN EXECUTION CREDITOR
WITH A LEVY ON THE PROPERTY WHICH PASSES INTO THE TRUSTEE'S CUSTODY. 

OUR QUESTION THEN IS WHETHER, UNDER THE CONSTITUTION AND STATUTES OF
NEVADA, A DECLARATION OF HOMESTEAD WOULD BE EFFECTIVE AS AGAINST A
CREDITOR TO PREVENT A JUDICIAL SALE OF THE PROPERTY IF MADE AND
RECORDED AFTER LEVY BUT BEFORE SALE THEREUNDER.  IF IT WOULD, IT MUST
BE EQUALLY EFFECTIVE AS AGAINST THE TRUSTEE, WHOSE RIGHTS RISE NO
HIGHER THAN THOSE OF THE SUPPOSED CREDITOR AND ATTACH AT THE DATE OF
THE INCEPTION OF BANKRUPTCY. 

EXAMINATION OF THE NEVADA CASES RELIED ON BY THE COURT BELOW
SATISFIES US THAT THE SETTLED LAW OF THE STATE ENTITLES THE DEBTOR TO
HIS HOMESTEAD EXEMPTION IF THE SELECTION AND RECORDING OCCURS AT ANY
TIME BEFORE ACTUAL SALE UNDER EXECUTION.  FN9  AND INDEED THE
PETITIONER SO CONCEDES IN HIS BRIEF, STATING THAT HE "ADMITS THAT UNDER
THE LAWS OF NEVADA AS INTERPRETED BY THE NEVADA SUPREME COURT, A
DECLARATION OF HOMESTEAD FILED AT ANY TIME PRIOR TO ACTUAL EXECUTION
SALE IS SUFFICIENT TO ESTABLISH THE HOMESTEAD RIGHT." 

IN CONFORMITY TO THE PRINCIPLE ANNOUNCED IN WHITE V. STUMP, THAT THE
BANKRUPT'S RIGHT TO A HOMESTEAD EXEMPTION BECOMES FIXED AT THE DATE OF
THE FILING OF THE PETITION IN BANKRUPTCY AND CANNOT THEREAFTER BE
ENLARGED OR ALTERED BY ANYTHING THE BANKRUPT MAY DO, IT REMAINS TRUE
THAT, UNDER THE LAW OF NEVADA, THE RIGHT TO MAKE AND RECORD THE
NECESSARY DECLARATION OF HOMESTEAD EXISTED IN THE BANKRUPT AT THE DATE
OF FILING THE PETITION, AS IT WOULD HAVE EXISTED IN CASE A LEVY HAD
BEEN MADE UPON THE PROPERTY.  THE ASSERTION OF THAT RIGHT BEFORE ACTUAL
SALE IN ACCORDANCE WITH STATE LAW DID NOT CHANGE THE RELATIVE STATUS OF
THE CLAIMANT AND THE TRUSTEE SUBSEQUENT TO THE FILING OF THE PETITION. 
THE FEDERAL COURTS HAVE GENERALLY SO HELD AND HAVE DISTINGUISHED WHITE
V. STUMP WHERE THE STATE LAW WAS SIMILAR, IN TERMS OR IN EFFECT, TO
THAT OF NEVADA.  FN10 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF JULY 1, 1898, C. 541, SEC. 70, 30 STAT. 565; ACT OF JUNE
22, 1938, C. 575, SEC. 1, 52 STAT. 879; 11 U.S.C. SEC. 110. 

FN2  WHITE V. STUMP, 266 U.S. 310. 

FN3  130 F.2D 775. 

FN4  30 STAT. 548, 11 U.S.C. SEC. 24. 

FN5  SEC. 70(C); 52 STAT. 881; 11 U.S.C. SEC. 110C. 

FN6  WHITE V. STUMP, SUPRA, P. 311. 

FN7  WHITE V. STUMP, SUPRA, P. 313. 

FN8  REMINGTON, BANKRUPTCY, 4TH ED., PP. 4-6; IN RE YOUNGSTROM, 153
F. 98, 103-4, AND CASES CITED. 

FN9  HAWTHORNE V. SMITH, 3 NEV. 182; MCGILL V. LEWIS, 116 P.2D 581. 

FN10  IN RE TRAMMELL, 5 F.2D 326; CLARK V. NIRENBAUM, 8 F.2D 451;
MCCRAE V. FELDER, 12 F.2D 554.  CONTRA:  GEORGOUSES V. GILLEN, 24 F.2D
292. 
..END :

















CREEK NATION V. UNITED STATES, 318 U.S. 629 


NO. 321.  ARGUED JANUARY 6, 7, 1943.  - DECIDED APRIL 5, 1943.  - 97
CT.CLS.  591, 723, AFFIRMED. 


1.  THE PROVISIONS OF TREATIES OF 1866 WITH THE CREEK AND SEMINOLE
NATIONS, WHEREBY THE UNITED STATES GUARANTEED TO THEM QUIET POSSESSION
OF THEIR COUNTRY, CAN NOT BE CONSTRUED AS OBLIGING THE UNITED STATES TO
INDEMNIFY THEM FOR DAMAGES SUSTAINED THROUGH WRONGFUL APPROPRIATIONS OF
TRIBAL LAND IN THE GUISE OF "STATION RESERVATIONS," BUT FOR NON
RAILROAD PURPOSES, BY RAILROAD COMPANIES WHOSE LINES WERE BUILT AND
OPERATED IN THE INDIANS' COUNTRY BY PERMISSION OF THE UNITED STATES AND
UNDER SANCTION OF THE TREATIES.  P. 633. 

2.  SECTION 15 OF THE ACT OF FEBRUARY 28, 1902, PROVIDED THAT THE
INDIAN TRIBES THROUGH WHOSE LAND RAILROADS WERE TO BE BUILT UNDER THE
ACT, SHOULD BE COMPENSATED BY THE RAILROAD COMPANIES FOR THE LAND
TAKEN, AND ESTABLISHED A SYSTEM OF VALUATION UNDER JUDICIAL SUPERVISION
WITH A RIGHT OF APPELLATE REVIEW.  THESE PROVISIONS PRESCRIBE AN
ADEQUATE METHOD BY WHICH THE TRIBES COULD PROTECT THEIR OWN INTERESTS,
BUT CONTAIN NO INDICATION THAT THE UNITED STATES SHOULD PAY FOR THE
LANDS TAKEN.  P. 636. 

3.  READ IN VIEW OF ITS LEGISLATIVE HISTORY AND ITS RELATION TO OTHER
SIMILAR LEGISLATION, THE ACT OF FEBRUARY 28, 1902(SEC.  16), IN
PROVIDING THAT WHERE A RAILROAD IS CONSTRUCTED UNDER IT IN THE INDIAN
TERRITORY THE RAILROAD COMPANY SHALL PAY TO THE SECRETARY OF THE
INTERIOR, FOR THE BENEFIT OF THE PARTICULAR TRIBE OR NATION THROUGH
WHOSE LANDS IT IS CONSTRUCTED, "AN ANNUAL CHARGE OF FIFTEEN DOLLARS PER
MILE" DID NOT MAKE THE GOVERNMENT AN INSURER OF COLLECTION NOR PUT UPON
THE SECRETARY A MANDATORY DUTY TO COLLECT, NOR DOES IT IMPORT AN
OBLIGATION OF THE UNITED STATES TO THE TRIBE FOR CHARGES WHICH RAILROAD
COMPANIES HAVE FAILED TO PAY.  P. 637. 

4.  THE ACT OF APRIL 26, 1906, SEC. 11, PROVIDING THAT ALL REVENUES
ACCRUING TO THE CREEK AND SEMINOLE TRIBES SHALL "BE COLLECTED BY AN
OFFICER APPOINTED BY THE SECRETARY OF THE INTERIOR UNDER RULES AND
REGULATIONS TO BE PRESCRIBED BY HIM" DID NOT MAKE THE UNITED STATES
LIABLE FOR RENTS AND PROFITS OF TRIBAL LAND ALLEGEDLY TAKEN AND USED
FOR NON-RAILROAD PURPOSES BY RAILROAD COMPANIES UNDER COLOR OF
AUTHORITY TO BUILD AND OPERATE RAILROADS IN THE INDIANS' COUNTRY.  P.
638. 

5.  AS TO TRESPASSES WHICH MAY HAVE BEEN COMMITTED BY THE RAILROADS
WITHOUT COMPLIANCE WITH THE FORMS OF THE AUTHORIZING ACTS, OR AS TO
HOLDINGS, ONCE PROPER, WHICH THE RAILROADS MAY HAVE RETAINED AFTER THE
RIGHTS TO THEM HAD EXPIRED, THE ACT OF 1906 IMPOSED NO ABSOLUTE DUTY ON
THE SECRETARY TO OBTAIN COMPENSATION.  P. 639. 

6.  THE DUTY OF THE SECRETARY OF THE INTERIOR UNDER THE ACT OF 1906
TO COLLECT REVENUES OF THE CREEKS AND SEMINOLES, AND TO BRING SUITS FOR
THEIR USE IN THE NAME OF THE UNITED STATES FOR THE COLLECTION OF ANY
MONEYS, OR THE RECOVERY OF ANY LAND CLAIMED BY THEM, WAS
DISCRETIONARY.  P. 639. 

7.  THE CREEK AND SEMINOLE TRIBES, NOT HAVING BEEN DISSOLVED, HAD A
LEGAL RIGHT TO BRING ACTIONS FOR TRESPASSES ON THEIR LANDS BY RAILROAD
COMPANIES - A RIGHT WHICH WAS NOT PRECLUDED BY THE FACT THAT THE UNITED
STATES ALSO, AS GUARDIAN, WAS EMPOWERED TO SUE.  P. 640. 

CREEK NATION V. UNITED STATES.* 

*TOGETHER WITH NO. 322, SEMINOLE NATION V. UNITED STATES, ALSO ON
WRIT OF CERTIORARI, 317 U.S. 614, TO THE COURT OF CLAIMS. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 317 U.S. 614, TO REVIEW JUDGMENTS SUSTAINING DEMURRERS TO
PETITIONS SETTING UP CLAIMS AGAINST THE UNITED STATES; AND DISMISSING
THE PETITIONS.  SEE ALSO 75 CT. CLS. 873. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THESE ACTIONS WERE ORIGINALLY BROUGHT IN 1926 UNDER SPECIAL
JURISDICTIONAL ACTS OF 1924, WHICH GAVE THE COURT OF CLAIMS
JURISDICTION OVER CLAIMS UNDER "ANY TREATY OR AGREEMENT BETWEEN THE
UNITED STATES" AND THESE TRIBES.  FN1  THE ACTIONS WERE BASED ON A
CONTENTION THAT THE UNITED STATES HAD BREACHED ITS OBLIGATION AS A
GUARDIAN OF ITS INDIAN WARDS IN FAILING TO COLLECT THE SUMS DESCRIBED
BELOW.  THE COURT OF CLAIMS SUSTAINED A DEMURRER TO THE FIRST
COMPLAINT, ON THE GROUND THAT THE SPECIAL JURISDICTIONAL ACTS PERMITTED
ACTIONS BROUGHT ON SPECIFIC STATUTORY OR TREATY PLEDGES ONLY, AND NOT
ACTIONS BROUGHT ON A WARDSHIP THEORY.  75 CT. CLS. 873.  THE
PETITIONERS SUBSEQUENTLY AMENDED THEIR COMPLAINTS TO COMPLY WITH THE
REQUIREMENTS OF THE JURISDICTIONAL ACTS, ALLEGING THAT THE UNITED
STATES IN SPECIFIC STATUTES AND TREATIES GUARANTEED TO REPAY THE
INDIANS FOR THE LOSSES CLAIMED TO HAVE BEEN SUFFERED.  THE COURT OF
CLAIMS SUSTAINED A DEMURRER TO THE SECOND AMENDED COMPLAINT ON THE
GROUND THAT IT DID NOT STATE A CAUSE OF ACTION, 97 CT. CLS. 591, AND WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTIONS RAISED IN
THE ADMINISTRATION OF INDIAN AFFAIRS.  THE CASES PRESENT THE QUESTION
WHETHER THE UNITED STATES HAS ASSUMED TREATY OR STATUTORY OBLIGATIONS
WHICH REQUIRE IT TO INDEMNIFY THE CREEK AND SEMINOLE NATIONS FOR
INJURIES ALLEGED TO HAVE BEEN SUFFERED BY THEM AS A RESULT OF THE
SEIZURE AND USE OF THEIR LAND BY PRIVATE RAILROAD COMPANIES. 

BY THE TREATIES OF 1866,  FN2  THE CREEKS AND SEMINOLES GRANTED A
RIGHT OF WAY TO RAILROADS WHICH THE UNITED STATES MIGHT LATER AUTHORIZE
TO CONSTRUCT AND OPERATE ROUTES ACROSS THEIR LANDS.  THEY AGREED TO
PERMIT THE RAILROADS TO BUY STRIPS UP TO THREE MILES IN WIDTH ON EACH
SIDE OF THE TRACK.  IN THE SUCCEEDING THIRTY-SIX YEARS, CONGRESS, BY A
SERIES OF SPECIAL ACTS, AUTHORIZED THE CONSTRUCTION AND OPERATION OF
RAILROADS,  FN3  AND IN 1902 IT PASSED A GENERAL STATUTE CONCERNING
FUTURE RAILROAD CONSTRUCTION IN THE INDIAN TERRITORY.  FN4  THE 1902
ACT INCLUDED A PROVISION, SEC. 16, THAT RAILROADS SHOULD PAY A FIXED
ANNUAL SUM PER MILE TO THE SECRETARY OF THE INTERIOR FOR THE BENEFIT OF
THE TRIBES. 

THE INDIANS ALLEGE THAT THE RAILROADS HAVE NOT COMPLIED WITH THE
TERMS OF THE TREATIES AND STATUTES, IN THAT THEY HAVE TAKEN AND HELD
CERTAIN STATION RESERVATIONS UNNECESSARY FOR RAILROAD PURPOSES FOR
THEIR OWN BENEFIT, THAT THEY HAVE RECEIVED RENTS AND PROFITS FROM THE
USE OF THESE LANDS, AND THAT THEY HAVE FAILED TO PAY THE ANNUAL MILEAGE
CHARGE.  FN5  THEY ASK THAT THE GOVERNMENT INDEMNIFY THEM FOR THE VALUE
OF THE LANDS ALLEGEDLY WRONGFULLY TAKEN, FOR RENTS AND PROFITS ACCRUING
TO THE RAILROADS FROM THEIR USE OF THOSE LANDS, AND FOR THE MILEAGE
CHARGE. 

IT MUST BE EMPHASIZED THAT THIS ACTION IS BROUGHT, NOT AGAINST THE
RAILROADS WHICH HAVE COMMITTED THE ASSERTED MISDEEDS, BUT AGAINST THE
GOVERNMENT FOR ITS FAILURE TO COLLECT THE SUMS CLAIMED FOR THE
PETITIONERS FROM THE RAILROADS.  THE QUESTION FOR DECISION HERE,
THEREFORE, IS WHETHER, ASSUMING ARGUENDO THAT THE RAILROADS ARE AT
FAULT, THE GOVERNMENT WAS OBLIGATED TO COMPEL RESTITUTION OR TO RECOVER
DAMAGES; AND IF THE GOVERNMENT FAILED TO DO THESE THINGS, WHETHER IT
HAD A DUTY TO MAKE THE INDIANS WHOLE.  WE ARE ASKED TO FIND AN
AGREEMENT TO INDEMNIFY THE TRIBES FOR THESE LOSSES IN THE TREATY OF
1866, THE ACT OF 1902, AND AN ACT OF 1906. 

FIRST.  THE TREATY OF 1866.  ARTICLE I OF THE TREATY PROVIDED: 

"(THE CREEKS) ALSO AGREE TO REMAIN AT PEACE WITH ALL OTHER INDIAN
TRIBES; AND, IN RETURN, THE UNITED STATES GUARANTEES THEM QUIET
POSSESSION OF THEIR COUNTRY, AND PROTECTION AGAINST HOSTILITIES ON THE
PART OF OTHER TRIBES.  IN THE EVENT OF HOSTILITIES, THE UNITED STATES
AGREE THAT THE TRIBE COMMENCING AND PROSECUTING THE SAME, SHALL, AS FAR
AS MAY BE PRACTICABLE, MAKE JUST REPARATION THEREFOR." 

THE PETITIONERS CONTEND THAT THE GOVERNMENT FAILED TO PREVENT THE
RAILROADS FROM TAKING AND HOLDING STATION RESERVATIONS LATER FOUND TO
BE UNNECESSARY FOR RAILROAD PURPOSES, AND THAT IT THUS BECAME LIABLE TO
THE PETITIONERS FOR BREACH OF THE GUARANTEE OF "QUIET POSSESSION." 

THE COURT OF CLAIMS CONCLUDED THAT THE GUARANTEE OF QUIET POSSESSION
APPLIED ONLY TO PROTECTION FROM HOSTILITIES BY OTHER TRIBES.  SUCH A
CONCLUSION RECEIVES SUPPORT FROM A CONSIDERATION OF THE CIRCUMSTANCES
OF THE TIME, FOR INTER-TRIBAL WARFARE WAS A DOMINANT DANGER.  SOME OF
THE TRIBES HAD FOUGHT ON EACH SIDE IN THE CIVIL WAR, AND STRANGE NEW
TRIBES WERE ABOUT TO BE SETTLED ON ADJACENT LAND.  THE TURMOIL OF
RECONSTRUCTION CALLED FOR MILITARY PROTECTION. 

WE CONCLUDE THAT, WHETHER OR NOT THE GUARANTEE IS LIMITED TO MILITARY
PROTECTION, THIS LANGUAGE DID NOT OBLIGATE THE UNITED STATES TO
COMPENSATE THE TRIBES FOR ENCROACHMENTS BY RAILROADS ACTING UNDER COLOR
OF RIGHT.  KEEPING THE PEACE AND PROTECTING THE INDIANS WAS A
DIFFICULT, AND AT TIMES ALMOST IMPOSSIBLE, TASK,  FN6  AND WE CANNOT
ASSUME THAT THE GOVERNMENT MEANT TO GUARANTEE REPARATIONS FOR BREACH OF
QUIET POSSESSION WITHOUT A SINGLE EXPLICIT WORD IN THE TREATY TO THAT
EFFECT.  WHERE REPARATIONS WERE PLANNED, CLEAR LANGUAGE WAS USED. 
THUS, IN THE SECTION QUOTED ABOVE, HOSTILE TRIBES, AND NOT THE
GOVERNMENT, WERE EXPLICITLY MADE LIABLE FOR THE TRIBE'S DEPREDATIONS. 
THERE IS NO SUCH PROVISION PUTTING A SIMILAR LIABILITY FOR LOSSES OF
ANY SORT ON THE UNITED STATES.  FN7  A PROMISE BY THE GOVERNMENT TO TRY
TO KEEP THE PEACE IS NOT EQUIVALENT TO A PROMISE TO MAKE PAYMENTS IF
THE PEACE IS NOT KEPT; "AND BEFORE ANY JUDGMENT SHOULD BE RENDERED
BINDING THE UNITED STATES IT IS FAMILIAR AND SETTLED LAW THAT THE
STATUTE CLAIMED TO JUSTIFY SUCH JUDGMENT SHOULD BE CLEAR AND NOT OPEN
TO DEBATE."  LEIGHTON V. UNITED STATES, 161 U.S. 291, 296, 297. 

THIS CONCLUSION DOES NOT MEAN THAT THE UNITED STATES IN SIGNING THE
TREATY MADE AN EMPTY PROMISE.  THE GOVERNMENT UNDERTOOK TO USE ITS
MILITARY POWER TO PROTECT THE INDIANS AGAINST MILITARY AGGRESSION, AND
IN ADDITION IT UNDERTOOK THROUGH ITS ADMINISTRATIVE AND LEGISLATIVE
POLICY TO AID THE TRIBES TO HOLD POSSESSION OF THEIR LANDS.  IN VIEW OF
THE PRESSURES OF THE TIME, IT APPEARS TO HAVE TREATED ITS OBLIGATION
WITH REAL CARE.  THE ACTS PROVIDING FOR THE CONSTRUCTION OF THE
RAILROADS, FOR EXAMPLE, PROVIDED FOR PAYMENT TO THE INDIANS FOR THE
LAND TAKEN,  FN8 ATTEMPTED TO RESTRICT THE AMOUNT GRANTED TO THAT
NECESSARY,  FN9  AND USUALLY PROVIDED FOR REVERSION OF TITLE TO THE
INDIANS UPON DISCONTINUANCE OF THE ROAD.  FN10  IN 1871, UPON APPEAL OF
THE TRIBES, THE SECRETARY OF THE INTERIOR REFUSED TO PERMIT A ROAD TO
ENTER THE TERRITORY BECAUSE OF A CLAIMED VIOLATION OF THE TREATY.  FN11
THE GUARANTEE OF QUIET POSSESSION CALLED FOR A SERIES OF LEGISLATIVE,
ADMINISTRATIVE, AND MILITARY JUDGMENTS, BUT WAS NOT A PLEDGE OF
MONETARY REPARATION. 

SECOND.  THE ACT OF FEBRUARY 28, 1902.  THE PETITIONERS REST ON SECS.
15 AND 16 OF THE ACT OF 1902.  SECTION 15 PROVIDES THAT THE TRIBES
THROUGH WHOSE LAND THE ROADS WERE TO BE BUILT SHOULD BE COMPENSATED BY
THE RAILROADS FOR THE LAND TAKEN.  THE SECTION ESTABLISHED A SYSTEM OF
VALUATION UNDER JUDICIAL SUPERVISION AND WITH A RIGHT OF APPELLATE
REVIEW.  THESE ELABORATE PROVISIONS PROVIDE AN ADEQUATE METHOD BY WHICH
THE TRIBES MIGHT PROTECT THEIR OWN INTERESTS, BUT CONTAIN NO INDICATION
OF ANY KIND THAT THE GOVERNMENT SHOULD PAY FOR THE LANDS TAKEN.  FN12 

PROVISIONS OF THIS ACT THERE SHALL BE PAID BY THE RAILROAD COMPANY TO
THE SECRETARY OF THE INTERIOR, FOR THE BENEFIT OF THE PARTICULAR TRIBE
OR NATION THROUGH WHOSE LANDS ANY SUCH RAILROAD MAY BE CONSTRUCTED, AN
ANNUAL CHARGE OF FIFTEEN DOLLARS PER MILE.  ..."  PETITIONER CONTENDS
THAT THIS DIRECTION TO THE SECRETARY TO ACCEPT THESE PAYMENTS MADE THE
GOVERNMENT AN INSURER OF THEIR COLLECTION. 

VARIANTS OF THIS STATUTORY PHRASE WERE USED GENERALLY IN ACTS
AUTHORIZING RAILROAD CONSTRUCTION AFTER 1884.  THE ACT OF 1902, AS HAS
BEEN NOTED, WAS THE SUCCESSOR TO THE GENERAL RAILROAD AUTHORIZATION ACT
OF 1899, WHICH IN 30 STAT. 990, SEC. 5, REQUIRED "SUCH AN ANNUAL CHARGE
AS MAY BE PRESCRIBED BY THE SECRETARY OF THE INTERIOR, NOT LESS THAN
FIFTEEN DOLLARS FOR EACH MILE."  OTHER ACTS OF THE PERIOD VARIED IN
THAT THE SECRETARY WAS DIRECTED TO APPORTION THE SUM COLLECTED AMONG
SEVERAL TRIBES ACCORDING TO THEIR INTERESTS.  FN13  SOME OF THE EARLIER
ACTS MENTIONED NO SPECIFIC SUM, GIVING THE SECRETARY COMPLETE
DISCRETION AS TO THE AMOUNT TO BE COLLECTED AND THE METHOD OF
ALLOCATING IT.  FN14  THIS DEVICE OF ASSESSMENT OF AN ANNUAL CHARGE
PAYABLE TO THE SECRETARY WAS ALSO USED IN AUTHORIZING CONSTRUCTION OF
TELEPHONE AND TELEGRAPH LINES ACROSS INDIAN LANDS, 25 U.S.C. SEC. 319. 

BY THE TIME OF THE ADOPTION OF THE 1902 ACT, THE VERBAL FORMULA USED
IN SEC. 16 WAS SO FAMILIAR THAT IT REQUIRED NO DISCUSSION IN CONGRESS. 
THE CLAUSE SEEMS FIRST TO HAVE BEEN USED IN AN ACT OF 1884, 23 STAT.
69, SEC. 5, AUTHORIZING THE GULF, COLORADO & SANTA FE RAILWAY TO CROSS
THE INDIAN TERRITORY.  THE $15.00 CHARGE WAS CONSIDERED A TAX,
APPROXIMATELY EQUAL TO THE TAXES CHARGED BY NEIGHBORING STATES.  FN15
NO WORD WAS SAID INDICATING THAT THE UNITED STATES, ACTING AS A
VOLUNTARY TAX COLLECTOR FOR THE TRIBES, MEANT TO GUARANTEE TO THE
TRIBES THAT THE TAXPAYERS WOULD MAKE THEIR PAYMENTS WHEN DUE. 

CONSIDERING SEC. 16 IN ITS RELATION TO THE OTHER STATUTES OF THE
PERIOD, MANY OF WHICH THROUGH MINOR VARIATIONS GAVE WIDE DISCRETION TO
THE SECRETARY OF THE INTERIOR, WE CONCLUDE THAT THE WORDS OF THIS
OFFICE AVAILABLE FOR THE PAYMENT OF A FORM OF TAX.  IT PROVIDES THAT
THE RAILROADS SHALL PAY THE TAX TO THE SECRETARY, BUT PUTS NO MANDATORY
DUTY ON THE SECRETARY TO DO THE WORK OF COLLECTING.  WE CANNOT SUPPOSE
FROM ANY EVIDENCE BEFORE US EITHER OF LEGISLATIVE HISTORY OR
ADMINISTRATIVE PRACTICE THAT THE UNITED STATES REPEATEDLY ASSUMED
OBLIGATIONS TO INDEMNIFY THE INDIAN TRIBES FOR CHARGES WHICH RAILROAD
COMPANIES, TELEPHONE COMPANIES, AND TELEGRAPH COMPANIES CONSTRUCTING
LINES ACROSS INDIAN LANDS MAY HAVE FAILED TO PAY.  CF. UNITED STATES V.
ALGOMA LUMBER CO., 305 U.S. 415, 421. 

THIRD.  THE ACT OF 1906.  CONGRESS AT ONE TIME PLANNED TO TERMINATE
THE EXISTENCE OF THE FIVE CIVILIZED TRIBES IN 1906, AND THE ACT OF 1906
WAS INTRODUCED INTO THE HOUSE OF REPRESENTATIVES WITH THE OBJECT OF
PRESERVING INDIAN INTERESTS AFTER TRIBAL DISSOLUTION.  IN THE COURSE OF
DISCUSSION, CONGRESS DETERMINED TO CONTINUE THE TRIBAL EXISTENCE, AND
THE ACT WAS AMENDED TO THAT EFFECT BEFORE PASSAGE.  THE PETITIONERS'
FINAL RELIANCE IS ON SECS. 11 AND 18 OF THIS ACT. 

THE RELEVANT PORTION OF SEC. 11 OF THE ACT IS AS FOLLOWS: 

"ALL REVENUES OF WHATEVER CHARACTER ACCRUING TO THE  ...  CREEK AND
SEMINOLE TRIBES, WHETHER BEFORE OR AFTER DISSOLUTION OF THE TRIBAL
GOVERNMENTS, SHALL  ...  BE COLLECTED BY AN OFFICER APPOINTED BY THE
SECRETARY OF THE INTERIOR UNDER RULES AND REGULATIONS TO BE PRESCRIBED
BY HIM." 

THE PETITIONER CONTENDS THAT UNDER THIS SECTION THE GOVERNMENT IS
LIABLE FOR RENTS AND PROFITS ON THE STATION RESERVATIONS ALLEGEDLY
WRONGFULLY TAKEN AND WRONGFULLY USED BY THE RAILROADS. 

THIS LANGUAGE, LIKE THAT OF SEC. 16 OF THE 1902 ACT WHICH IT SO
CLOSELY RESEMBLES, DOES NOT MAKE THE GOVERNMENT A GUARANTOR THAT SUMS
OWING WILL BE PAID.  THE CLAIM ASSERTED IS IN ESSENCE ONE OF DAMAGES
FOR TRESPASS, AND ASSUMING THAT THE PROCEEDS OF A TRESPASS ACTION ARE
TO BE CONSIDERED "REVENUE," THE SECRETARY WAS SURELY ENTITLED TO
DISCRETION AS TO WHICH TRESPASS ACTIONS HE MIGHT CONSIDER WORTH
BRINGING.  IN SO FAR AS THE PETITIONER CONTENDS THAT THE RAILROADS
WRONGFULLY TOOK LANDS UNDER PRETENSE OF RIGHT IN THEIR ORIGINAL GRANTS
UNDER THE STATUTES, THE ADMINISTRATIVE MACHINERY PROVIDED BY THE ACTS
GAVE THE TRIBES ADEQUATE REDRESS THROUGH THE COURTS AT THE TIME THE
LAND WAS TAKEN.  FN16  AS TO TRESPASSES WHICH MAY HAVE BEEN COMMITTED
BY THE RAILROADS WITHOUT COMPLIANCE WITH THE FORMS OF THE AUTHORIZING
ACTS, OR AS TO HOLDINGS, ONCE PROPER, WHICH THE RAILROADS MAY HAVE
RETAINED AFTER THE RIGHTS TO THEM HAD EXPIRED, WE FIND NO ABSOLUTE DUTY
ON THE SECRETARY TO OBTAIN COMPENSATION. 

THAT THE SECRETARY'S DUTY TO COLLECT REVENUES AND INSTITUTE ACTIONS
UNDER THE ACT WAS DISCRETIONARY IS MADE CLEAR BY SEC. 18: 

"THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO BRING SUIT IN
THE NAME OF THE UNITED STATES, FOR THE USE OF THE  ...  CREEK, OR
SEMINOLE TRIBES, RESPECTIVELY  ...  FOR THE COLLECTION OF ANY MONEYS OR
RECOVERY OF ANY LAND CLAIMED BY ANY OF SAID TRIBES.  ...  "    THE
PETITIONERS CONTEND THAT UNDER THIS SECTION THE SECRETARY WAS OBLIGATED
TO BRING SUIT FOR ALL DAMAGES SUFFERED BY THE TRIBES FOR FAILURE TO PAY
SUMS OWING UNDER SECS. 15 AND 16 OF THE 1902 ACT, FOR TRESPASS AND
MILEAGE TAXES, FOR ANY BREACH OF THE TREATY, AND FOR RENTS AND PROFITS
COLLECTED BY THE RAILROADS.  BUT THE USE OF THE WORD "AUTHORIZED" IN
THIS CONTEXT NECESSARILY RESERVED TO THE SECRETARY THE RIGHT TO
DETERMINE HIS OWN COURSE OF ACTION.  IT MUST BE REMEMBERED THAT THE
SECRETARY WAS TRADITIONALLY GIVEN WIDE DISCRETION IN THE HANDLING OF
INDIAN AFFAIRS  FN17 AND THAT DISCRETION WOULD SELDOM BE MORE NECESSARY
THAN IN DETERMINING WHEN TO INSTITUTE LEGAL PROCEEDINGS.  FOR EXAMPLE,
A RAILROAD MIGHT HAVE BECOME BANKRUPT OR REORGANIZED BEFORE A FAILURE
TO MAKE PROPER PAYMENTS WAS DISCOVERED,  FN18  MAKING RECOVERY
IMPOSSIBLE; AND WE CAN NOT SUPPOSE THAT THE SECRETARY MIGHT NOT
COMPROMISE DIFFICULT CASES WITHOUT BRINGING SUIT. 

THAT THE GOVERNMENT DID NOT MEAN TO ASSUME AN INSURER'S
RESPONSIBILITY FOR THE PAYMENT OF SUMS CLAIMED BY THE INDIANS AGAINST
THE RAILROADS IS FURTHER SHOWN BY THE FACT THAT THE INDIANS RETAINED
THEIR OWN INDEPENDENT REMEDY FOR WRONGS DONE THEM.  THE TRIBES HAVE NOT
YET BEEN DISSOLVED, AND THEY HAVE HAD, BOTH AS A GENERAL LEGAL RIGHT
FN19  AND BY VIRTUE OF THE VERY SECTION OF THE 1906 ACT UNDER
DISCUSSION HERE, THE POWER TO BRING ACTIONS ON THEIR OWN BEHALF.  THAT
THE UNITED STATES ALSO HAD A RIGHT TO SUE DID NOT NECESSARILY PRECLUDE
THE TRIBES FROM BRINGING THEIR OWN ACTIONS.  FN20 

WE ARE ASKED HERE TO IMPOSE A LIABILITY ON THE GOVERNMENT TO THESE
INDIANS FOR WRONGS ALLEGEDLY COMMITTED AGAINST THE INDIANS BY OTHERS. 
APPRECIATING THE DESIRE OF CONGRESS TO RECOGNIZE THE "FULL OBLIGATION
OF THIS NATION TO PROTECT THE INTERESTS OF A DEPENDENT PEOPLE," TULEE
V. WASHINGTON, 315 U.S. 681, 685, WE ARE UNABLE TO FIND IN THE WORDS OF
THE TREATIES OR STATUTES UPON WHICH THIS ACTION RESTS ANY SUCH PRODIGAL
ASSUMPTION BY THE GOVERNMENT OF OTHER PEOPLE'S LIABILITIES AS THAT FOR
WHICH THE PETITIONERS CONTEND HERE.  AFFIRMED. 

FN1  43 STAT. 133, 43 STAT. 139.  SEE ALSO THE JURISDICTIONAL ACT OF
1937, 50 STAT. 650. 

FN2  14 STAT. 755(SEMINOLE), 785(CREEKS).  THE TREATIES ARE
SUFFICIENTLY SIMILAR SO THAT HEREAFTER REFERENCE WILL BE MADE TO THE
CREEK TREATY ONLY. 

FN3  THE TREATY WAS ORIGINALLY INTERPRETED AS PERMITTING THE
CONSTRUCTION OF ONLY TWO RAILROADS THROUGH THE TERRITORY.  LETTER OF
THE SECRETARY OF THE INTERIOR TO THE PRESIDENT, MAY 21, 1870, APPROVED
BY HIM MAY 23, 1870, REFERRED TO AT 13 O.A.G. 285(1870).  IN THE
1880'S, CONGRESS BEGAN, IN A SERIES OF SPECIAL ACTS, TO AUTHORIZE
CONSTRUCTION OF RAILROADS THROUGH THE INDIAN TERRITORY ON A THEORY OF
EMINENT DOMAIN.  CHEROKEE NATION V. SOUTHERN KANSAS RY. CO., 135 U.S.
641.  SEE E.G. THE COMMITTEE REPORT AND DISCUSSION OF THE BILL GRANTING
A RIGHT OF WAY TO THE GULF, COLORADO & SANTA FE RAILWAY, 15 CONG. REC.
4711 ET SEQ. (1884).  APPROXIMATELY ONE HALF OF THE RAILROADS INVOLVED
IN THE INSTANT CASE APPEAR TO HAVE BEEN AUTHORIZED BY SPECIAL ACTS AND
TO HAVE BEEN CONSTRUCTED PRIOR TO THE GENERAL ACT OF 1902.  FOR A
GENERAL HISTORY OF RAILROADS IN OKLAHOMA, SEE BULLETIN NO. 60, THE
RAILWAY AND LOCOMOTIVE HISTORICAL SOCIETY, "THE RAILROADS OF OKLAHOMA,"
PUBLISHED THROUGH THE BAKER LIBRARY OF THE HARVARD BUSINESS SCHOOL
(1943). 

FN4  AN ACT REGULATING GENERAL CONSTRUCTION OF RAILROADS THROUGH
INDIAN LANDS WAS FIRST ADOPTED IN 1899, 30 STAT. 990.  THE 1902 ACT WAS
MORE PARTICULARLY DIRECTED AT CONSTRUCTION THROUGH THE TERRITORY OF THE
FIVE CIVILIZED TRIBES, OF WHICH PETITIONERS ARE TWO. 

FN5  UNDER AN OPINION OF THE SECRETARY OF THE INTERIOR, THE
OBLIGATION TO MAKE THIS PAYMENT TERMINATED UPON THE ADMISSION OF
OKLAHOMA AS A STATE IN 1907.  38 DECISIONS OF SECRETARY OF THE INTERIOR
(PUBLIC LANDS) 414. 

FN6  "THE TREATIES OF 1866, AND OTHER TREATIES ALSO, GUARANTEE TO THE
FIVE CIVILIZED TRIBES THE POSSESSION OF THEIR LANDS; BUT, WITHOUT THE
MORAL AND PHYSICAL POWER WHICH IS REPRESENTED BY THE ARMY OF THE UNITED
STATES, WHAT ARE THESE TREATIES WORTH AS A PROTECTION AGAINST THE
RAPACIOUS GREED OF THE HOMELESS PEOPLE OF THE STATES WHO SEEK
HOMESTEADS WITHIN THE BORDERS OF THE INDIAN TERRITORY?  IF THE
PROTECTING POWER OF THIS GOVERNMENT WERE WITHDRAWN FOR THIRTY DAYS,
WHERE WOULD THE TREATIES BE, AND THE LAWS OF THE INDIANS AND THE
INDIANS THEMSELVES?"  REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS IN 1
REPORT, SECRETARY OF THE INTERIOR (1886), 81. 

FN7  THE ONLY INSTANCE WHICH HAS BEEN CALLED TO OUR ATTENTION IN
WHICH THE UNITED STATES SPECIFICALLY GUARANTEED TO BRING CIVIL ACTIONS
FOR THE BENEFIT OF A TRIBE AND INSURED PAYMENT FOR TRESPASSES IS THE
TREATY OF MAY 24, 1834, WITH THE CHICKASAWS, 7 STAT. 450. 

FN8  THE ACT OF JULY 27, 1866, 14 STAT. 292, SEC. 7, AUTHORIZING THE
CONSTRUCTION OF A RAILROAD THROUGH THE INDIAN COUNTRY PROVIDED FOR A
JURY TRIAL TO DETERMINE THE FAIR PRICE.  SEE, FOR EXAMPLE OF THE
LIBERAL CONSTRUCTION GIVEN A SIMILAR PROVISION IN 23 STAT. 73, CHEROKEE
NATION V. SOUTHERN KANSAS RY. CO., 135 U.S. 641, 651-653.  ANOTHER ACT
PASSED IN 1866, 14 STAT. 289, SEC. 8, PROVIDED THAT THE RAILROAD SHOULD
BE CONSTRUCTED "WITH THE CONSENT OF THE INDIANS, AND NOT OTHERWISE." 

FN9  NOTE, FOR EXAMPLE, IN THE CONGRESSIONAL DISCUSSION OF THE BILL
AUTHORIZING CONSTRUCTION OF THE GULF, COLORADO & SANTA FE RAILWAY, AN
OKLAHOMA RAILROAD NOT DIRECTLY INVOLVED HERE, THE DEBATE OVER THE
AMOUNT OF LAND NECESSARY FOR SIDINGS.  15 CONG. REC. 4715-4718(1884). 

FN10  THE EXPERIENCE OF ONE OF THE FIRST OF THE TWO ROADS AUTHORIZED
UNDER THE TREATY IS REVEALING OF THE MANNER IN WHICH THE USE OF THE
INDIAN LANDS WAS SUPERVISED:  THE ATLANTIC & PACIFIC RAILROAD WAS
AUTHORIZED TO BUILD A LINE BY AN 1866 ACT, 14 STAT. 292.  IN 1871,
AFTER SMALL PARTS OF THE LINE HAD BEEN COMPLETED, IT WAS ORDERED TO
CEASE WORK BY THE SECRETARY OF THE INTERIOR AND WAS NOT ALLOWED TO
CONTINUE UNTIL IT HAD POSTED A BOND FOR THE PROTECTION OF INDIAN
INTERESTS.  SEE DISCUSSION IN ATLANTIC & PACIFIC R. CO. V. MINGUS, 165
U.S. 413, 417.  FAILURE TO COMPLETE THE ROAD RESULTED IN AN 1886 ACT
TAKING THE LANDS PREVIOUSLY GRANTED BACK INTO THE PUBLIC DOMAIN, 24
STAT. 123, AND THE ROAD WAS ULTIMATELY COMPLETED BY THE ST. LOUIS &
OKLAHOMA CITY RY. CO. UNDER AN 1896 SPECIAL ACT, 29 STAT. 69.  SECTION
2 OF THAT ACT PROVIDES FOR REVERSION TO THE TRIBES OF LANDS NOT USED
FOR RAILROAD PURPOSES. 

FN11  LETTER, SECRETARY OF THE INTERIOR, MAY 21, 1870, SUPRA, NOTE
3. 

FN12  WHETHER ADDED OBLIGATIONS IN CONNECTION WITH THIS SECTION WERE
ASSUMED BY THE UNITED STATES IN THE 1906 ACT IS CONSIDERED BELOW. 

FN13  SEE, E.G., THE ACT AUTHORIZING CONSTRUCTION OF THE KANSAS &
ARKANSAS VALLEY RAILROAD, 24 STAT. 73, SEC. 5(1886), OR THE ACT
AUTHORIZING CONSTRUCTION OF A BRANCH OF THE ST. LOUIS & SAN FRANCISCO
RAILROAD, 29 STAT. 80, SEC. 5(1896). 

FN14  THE ACT AUTHORIZING CONSTRUCTION OF A RAILROAD THROUGH THE
PAPAGO (ARIZONA) RESERVATION PROVIDED:  "SUCH COMPENSATION AS MAY BE
FIXED BY THE SECRETARY OF THE INTERIOR BE PAID TO HIM BY THE SAID
RAILROAD COMPANY, TO BE EXPENDED BY HIM FOR THE BENEFIT OF THE SAID
INDIANS."  22 STAT. 299(1882). 

FN15  SEE DISCUSSION IN THE HOUSE OF REPRESENTATIVES, 15 CONG. REC.
4723-4727.  FOR AN ANALYSIS OF THE NATURE OF THIS TAX SEE THE OPINION
OF THE SECRETARY OF THE INTERIOR, SUPRA, NOTE 5. 

FN16  SEE FOR EXAMPLE SEC. 15 OF THE 1902 ACT. 

FN17  COHEN, HANDBOOK OF FEDERAL INDIAN LAW, "THE RANGE OF
ADMINISTRATIVE POWERS," 100 ET SEQ. 

FN18  THE OKLAHOMA PROPERTIES OF THE ST. LOUIS & SAN FRANCISCO
RAILWAY CO. WERE HELD BY 25 DIFFERENT CORPORATIONS BETWEEN 1866 AND
1916.  THE ATCHISON, TOPEKA & SANTA FE, NOT DIRECTLY INVOLVED IN THIS
ACTION, IS THE DESCENDANT OF 64 RAILROADS WITH OKLAHOMA HOLDINGS. 
APPROXIMATELY 150 RAILROADS HAVE EXISTED IN OKLAHOMA.  SEE "THE
RAILROADS OF OKLAHOMA," SUPRA, NOTE 3, PP. 28-77. 

FN19  CHEROKEE NATION V. SOUTHERN KANSAS RY. CO., 135 U.S. 641;
CHEROKEE NATION V. HITCHCOCK, 187 U.S. 294; LONE WOLF V. HITCHCOCK, 187
U.S. 553.  CF. LANE V. PUEBLO OF SANTA ROSA, 249 U.S. 110, AND UNITED
STATES V. CANDELARIA, 271 U.S. 432. 

FN20  CF. HECKMAN V. UNITED STATES, 224 U.S. 413, 446; UNITED STATES
V. OSAGE COUNTY, 251 U.S. 128; SUNDERLAND V. UNITED STATES, 266 U.S.
226. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MURPHY, DISSENTING: 

AS A PEOPLE OUR DEALINGS WITH THE INDIAN TRIBES HAVE BEEN TOO OFTEN
MARKED BY INJUSTICE, NEGLECT, AND EVEN RUTHLESS DISREGARD OF THEIR
INTERESTS AND NECESSITIES.  AS A NATION WE HAVE INCURRED MORAL AND
POLITICAL RESPONSIBILITIES TOWARD THEM AND THEIR DESCENDANTS, WHICH
HAVE BEEN REQUITED IN SOME MEASURE BY TREATIES AND STATUTES FRAMED FOR
THE PROTECTION AND ADVANCEMENT OF THEIR INTERESTS.  THOSE ENACTMENTS
SHOULD ALWAYS BE READ IN THE LIGHT OF THIS HIGH AND NOBLE PURPOSE, IN A
MANNER THAT WILL GIVE FULL SCOPE AND EFFECT TO THE HUMANE AND LIBERAL
POLICY THAT HAS BEEN ADOPTED BY THE CONGRESS TO RECTIFY PAST WRONGS. 
FN1 

EACH RAILWAY COMPANY WHOSE ROAD WAS CONSTRUCTED UNDER THE ACT OF 1902
FN2  WAS REQUIRED BY SEC. 16 OF THAT ACT TO PAY TO THE SECRETARY OF
THE INTERIOR, FOR THE BENEFIT OF THE PARTICULAR TRIBE THROUGH WHOSE
LANDS THE ROAD PASSED, AN ANNUAL CHARGE OF FIFTEEN DOLLARS FOR EACH
MILE OF ROAD CONSTRUCTED.  BY THE ACT OF 1906 IT WAS PROVIDED THAT ALL
REVENUES ACCRUING TO THE FIVE CIVILIZED TRIBES "SHALL  ...  BE
COLLECTED BY AN OFFICER APPOINTED BY THE SECRETARY OF THE INTERIOR,"
AND THE SECRETARY WAS AUTHORIZED TO BRING SUIT IN THE NAME OF THE
UNITED STATES FOR THE USE OF ANY ONE OF THE FIVE TRIBES TO COLLECT ANY
MONEYS CLAIMED BY IT.  FN3  FOR FAILURE OF THE SECRETARY OF THE
INTERIOR TO COLLECT THESE MILEAGE CHARGES FOR THE CREEK AND SEMINOLE
TRIBES, AMONG OTHER THINGS, THIS ACTION IS BROUGHT UNDER JURISDICTIONAL
ACTS  FN4  WHICH AUTHORIZE THE COURT OF CLAIMS TO HEAR AND DETERMINE
ALL LEGAL AND EQUITABLE CLAIMS ARISING UNDER OR GROWING OUT OF ANY
TREATY OR AGREEMENT BETWEEN THE UNITED STATES AND THOSE TRIBES, OR OUT
OF ANY ACT OF CONGRESS RELATING TO INDIAN AFFAIRS. 

WE HAVE HELD THAT THE GOVERNMENT IN ITS RELATIONS WITH THE INDIAN
TRIBES OCCUPIES THE POSITION OF A FIDUCIARY, THAT THE RELATIONSHIP IS
SIMILAR TO THAT OF GUARDIAN AND WARD, AND THAT THE DUTIES AND
RESPONSIBILITIES OF THE UNITED STATES TOWARD ITS WARDS REQUIRE A
GENEROUS INTERPRETATION N5.  IF IT IS THE DUTY OF A GUARDIAN OR
TRUSTEE, AS I CONCEIVE IT TO BE, TO EXERCISE DILIGENCE TO CONSERVE AND
PROTECT THE INTERESTS OF HIS TRUST, AND COLLECT MONEYS DUE TO THE
ESTATE OF HIS WARD, THEN SUCH A DUTY MAY WELL HAVE ARISEN UNDER SEC. 16
OF THE ACT OF 1902, A DUTY WHICH, IT IS ALLEGED, THE SECRETARY OF THE
INTERIOR FAILED TO DISCHARGE.  IN OTHER WORDS, IF THE RAILROADS FAILED
TO PAY TO THE SECRETARY THE REQUIRED ANNUAL CHARGES FOR EACH MILE OF
ROAD CONSTRUCTED, IT WAS THE SECRETARY'S DUTY TO ACT TO PROTECT THE
INDIAN BENEFICIARIES WHO SHOULD NOT BE EXPECTED TO ASSUME THE BURDEN OF
ACTING ON THEIR OWN BEHALF, ESPECIALLY WHEN THE PAYMENTS WERE TO BE
MADE TO THE SECRETARY AND NOT TO THEM.  CF. UNITED STATES V. CREEK
NATION, 295 U.S. 103, 110.  TO READ THE ACT OF 1902 OTHERWISE IS TO
TAKE TOO RESTRICTED A VIEW OF THE OBLIGATIONS OF THE UNITED STATES
TOWARD A DEPENDENT PEOPLE.  BUT IF THERE WERE ANY DOUBT, THE DUTY OF
THE SECRETARY OF THE INTERIOR TO COLLECT THE MILEAGE CHARGES WAS MADE
PLAIN AND UNMISTAKABLE BY THE ACT OF 1906, WHICH REQUIRED HIM TO
COLLECT ALL REVENUES ACCRUING TO THE TRIBES AND SPECIFICALLY AUTHORIZED
HIM TO BRING SUIT ON THEIR BEHALF.  THE PRESENT CLAIM TO MILEAGE
CHARGES UNDOUBTEDLY IS AN EQUITABLE ONE ARISING OUT OF THOSE STATUTES
AND IS THEREFORE WITHIN THE SCOPE AND PURPOSE OF THE JURISDICTIONAL
ACTS. 

IN MY OPINION THE PETITIONERS STATE A CAUSE OF ACTION WITH RESPECT TO
THESE MILEAGE CLAIMS, AND THE JUDGMENT OF THE COURT OF CLAIMS SHOULD
ACCORDINGLY BE REVERSED. 

FN1  CHOCTAW NATION V. UNITED STATES, 119 U.S. 1, 27-28; SEMINOLE
NATION V. UNITED STATES, 316 U.S. 286, 296-97. 

FN2  ACT OF FEBRUARY 28, 1902, 32 STAT. 43. 

FN3  SECS. 11 AND 18 OF THE ACT OF APRIL 26, 1906, 34 STAT. 137, 141,
144. 

FN4  ACT OF MAY 20, 1924, 43 STAT. 133(SEMINOLE), AND ACT OF MAY 24,
1924, 43 STAT. 139(CREEK). 

FN5  SEE NOTE 1, ANTE. 

MR. JUSTICE FRANKFURTER AGREES WITH THESE VIEWS. 
..END :




















FISHER CO. V. WITMARK & SONS, 318 U.S. 643 


NO. 327.  ARGUED JANUARY 14, 15, 1943.  - DECIDED APRIL 5, 1943.  - 125
F.2D 949, AFFIRMED. 


UNDER THE COPYRIGHT ACT OF 1909, AS AMENDED, AN AUTHOR'S RIGHT TO
OBTAIN A RENEWAL AND EXTENSION OF HIS COPYRIGHT IS ASSIGNABLE BY HIM BY
AN AGREEMENT MADE BEFORE THE EXPIRATION OF THE ORIGINAL COPYRIGHT
TERM.  P. 656. 

FRED FISHER MUSIC CO. ET AL. V. M. WITMARK & SONS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 317 U.S. 611, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
DISTRICT COURT, 38 F.SUPP.  72, GRANTING AN INTERLOCUTORY INJUNCTION IN
A CASE OF ALLEGED COPYRIGHT INFRINGEMENT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A QUESTION NEVER SETTLED BEFORE, EVEN THOUGH IT
CONCERNS LEGISLATION HAVING A HISTORY OF MORE THAN TWO HUNDRED YEARS. 
THE QUESTION ITSELF CAN BE STATED VERY SIMPLY.  UNDER SEC. 23 OF THE
COPYRIGHT ACT OF 1909, 35 STAT. 1075, AS AMENDED,  FN1  A COPYRIGHT IN
A MUSICAL COMPOSITION LASTS FOR TWENTY-EIGHT YEARS FROM THE DATE OF ITS
FIRST PUBLICATION, AND THE AUTHOR CAN RENEW THE COPYRIGHT, IF HE IS
STILL LIVING, FOR A FURTHER TERM OF TWENTY-EIGHT YEARS BY FILING AN
APPLICATION FOR RENEWAL WITHIN A YEAR BEFORE THE EXPIRATION OF THE
FIRST TWENTY-EIGHT YEAR PERIOD.  SECTION 42 OF THE ACT PROVIDES THAT A
COPYRIGHT "MAY BE ASSIGNED  ...  BY AN INSTRUMENT IN WRITING SIGNED BY
THE PROPRIETOR OF THE COPYRIGHT  ...  "  CONCEDEDLY, THE AUTHOR CAN
ASSIGN THE ORIGINAL COPYRIGHT AND, AFTER HE HAS SECURED IT, THE RENEWAL
COPYRIGHT AS WELL.  THE QUESTION IS - DOES THE ACT PREVENT THE AUTHOR
FROM ASSIGNING HIS INTEREST IN THE RENEWAL COPYRIGHT BEFORE HE HAS
SECURED IT? 

THIS LITIGATION ARISES FROM A CONTROVERSY OVER THE RENEWAL RIGHTS IN
THE POPULAR SONG "WHEN IRISH EYES ARE SMILING."  IT WAS WRITTEN IN 1912
BY ERNEST R. BALL, CHAUNCEY OLCOTT, AND GEORGE GRAFF, JR., EACH OF WHOM
WAS UNDER CONTRACT TO A FIRM OF MUSIC PUBLISHERS, M. WITMARK & SONS. 
PURSUANT TO THE CONTRACTS, WITMARK ON AUGUST 12, 1912, APPLIED FOR AND
OBTAINED THE COPYRIGHT IN THE SONG.  ON MAY 19, 1917, GRAFF AND WITMARK
MADE A FURTHER AGREEMENT, UNDER WHICH, FOR THE SUM OF $1,600, GRAFF
ASSIGNED TO WITMARK "ALL RIGHTS, TITLE AND INTEREST" IN A NUMBER OF
SONGS, INCLUDING "WHEN IRISH EYES ARE SMILING."  THE CONTRACT PROVIDED
FOR THE CONVEYANCE OF "ALL COPYRIGHTS AND RENEWALS OF COPYRIGHTS AND
THE RIGHT TO SECURE ALL COPYRIGHTS AND RENEWALS OF COPYRIGHTS IN THE
(SONGS), AND ANY AND ALL RIGHTS THEREIN THAT I (GRAFF) OR MY HEIRS,
EXECUTORS, ADMINISTRATORS OR NEXT OF KIN MAY AT ANY TIME BE ENTITLED
TO."  TO THAT END, WITMARK WAS GIVEN AN IRREVOCABLE POWER OF ATTORNEY
TO EXECUTE IN GRAFF'S NAME ALL DOCUMENTS "NECESSARY TO SECURE TO
(WITMARK) THE RENEWALS AND EXTENSIONS OF THE COPYRIGHTS IN SAID
COMPOSITIONS AND ALL RIGHTS THEREIN FOR THE TERMS OF SUCH RENEWALS AND
EXTENSIONS."  IN ADDITION, GRAFF AGREED THAT, "UPON THE EXPIRATION OF
THE FIRST TERM OF ANY COPYRIGHT," HE WOULD EXECUTE AND DELIVER TO
WITMARK "ALL PAPERS NECESSARY IN ORDER TO SECURE TO IT THE RENEWALS AND
EXTENSIONS OF ALL COPYRIGHTS IN SAID COMPOSITIONS AND ALL RIGHTS
THEREIN FOR THE TERMS OF SUCH RENEWALS AND EXTENSIONS."  THIS AGREEMENT
WAS DULY RECORDED IN THE COPYRIGHT OFFICE. 

ON AUGUST 12, 1939, THE FIRST DAY OF THE TWENTY-EIGHTH YEAR OF THE
COPYRIGHT IN "WHEN IRISH EYES ARE SMILING," WITMARK APPLIED FOR AND
REGISTERED THE RENEWAL COPYRIGHT IN GRAFF'S NAME.  FN2  ON THE SAME
DAY, EXERCISING ITS POWER OF ATTORNEY UNDER THE AGREEMENT OF MAY 19,
1917, WITMARK ALSO ASSIGNED TO ITSELF GRAFF'S INTEREST IN THE RENEWAL. 
ELEVEN DAYS LATER, GRAFF HIMSELF APPLIED FOR AND REGISTERED THE RENEWAL
COPYRIGHT IN HIS OWN NAME; AND ON OCTOBER 24, 1939, HE ASSIGNED HIS
RENEWAL INTEREST TO ANOTHER OTHER MUSIC PUBLISHING FIRM, FRED FISHER
MUSIC CO., INC. BOTH GRAFF AND FISHER KNEW OF THE PRIOR REGISTRATION OF
THE RENEWAL BY WITMARK AND OF THE LATTER'S ASSIGNMENT TO ITSELF. 
RELYING UPON THE VALIDITY OF THE ASSIGNMENT MADE TO IT ON OCTOBER 24,
1939, AND WITHOUT OBTAINING PERMISSION FROM WITMARK, FISHER PUBLISHED
AND SOLD COPIES OF "WHEN IRISH EYES ARE SMILING," REPRESENTING TO THE
TRADE THAT IT OWNED THE RENEWAL RIGHTS IN THE SONG.  WITMARK THEREUPON
BROUGHT THIS SUIT TO ENJOIN THESE ACTIVITIES.  THE DISTRICT COURT
GRANTED A PRELIMINARY INJUNCTION PENDENTE LITE SOLELY UPON THE GROUND
THAT THERE WAS NO STATUTORY BAR AGAINST AN AUTHOR'S ASSIGNMENT OF HIS
INTEREST IN THE RENEWAL BEFORE IT WAS SECURED.  38 F.SUPP.  72.  THE
COURT CONSIDERED NO EVIDENCE AND MADE NO FINDINGS UPON THE QUESTION
WHETHER EQUITABLE RELIEF SHOULD BE DENIED ON OTHER GROUNDS, SUCH AS
INADEQUACY OF CONSIDERATION AND THE LIKE.  FN3  UPON APPEAL TO THE
CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT UNDER SEC. 129 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 227, PERMITTING APPEALS FROM
INTERLOCUTORY DECREES, THE ORDER WAS AFFIRMED.  125 F.2D 949.  THE
CIRCUIT COURT OF APPEALS LIMITED ITSELF, AS DID THE PARTIES BEFORE IT,
TO THE QUESTION OF STATUTORY CONSTRUCTION, WHOLLY APART FROM THE
PARTICULAR CIRCUMSTANCES OF THE CASE.  THE COURT EXPRESSLY LEFT OPEN
"OTHER CONTENTIONS WHICH THE PARTIES MAY WISH AND BE ENTITLED TO RAISE
ON THE MERITS, INCLUDING POSSIBLY CLAIMS OF INADEQUACY OF
CONSIDERATION."  125 F.2D AT 954.  THE PETITION FOR CERTIORARI IN THIS
COURT STATED THAT THE "SOLE QUESTION IS WHETHER  ...  AN AGREEMENT TO
ASSIGN HIS RENEWAL, MADE BY AN AUTHOR IN ADVANCE OF THE TWENTY-EIGHTH
YEAR OF THE ORIGINAL TERM OF COPYRIGHT, IS VALID AND ENFORCEABLE." 
BECAUSE OF THE OBVIOUS IMPORTANCE OF THIS QUESTION OF THE PROPER
CONSTRUCTION OF THE COPYRIGHT ACT, WE BROUGHT THE CASE HERE.  317 U.S.
611. 

PLAINLY, THERE IS ONLY ONE QUESTION BEFORE US - DOES THE COPYRIGHT
ACT NULLIFY AN AGREEMENT BY AN AUTHOR, MADE DURING THE ORIGINAL
COPYRIGHT TERM, TO ASSIGN HIS RENEWAL?  THE EXPLICIT WORDS OF THE
STATUTE GIVE THE AUTHOR AN UNQUALIFIED RIGHT TO RENEW THE COPYRIGHT. 
NO LIMITATIONS ARE PLACED UPON THE ASSIGNABILITY OF HIS INTEREST IN THE
RENEWAL.  IF WE LOOK ONLY TO WHAT THE ACT SAYS, THERE CAN BE NO DOUBT
AS TO THE ANSWER.  BUT EACH OF THE PARTIES FINDS SUPPORT FOR ITS
CONCLUSION IN THE HISTORICAL BACKGROUND OF COPYRIGHT LEGISLATION, AND
TO THAT WE MUST TURN TO DISCOVER WHETHER CONGRESS MEANT MORE THAN IT
SAID. 

ANGLO-AMERICAN COPYRIGHT LEGISLATION BEGINS IN 1709 WITH THE STATUTE
OF 8 ANNE, C. 19.  THAT ACT GAVE THE AUTHOR AND HIS ASSIGNS THE
EXCLUSIVE COPYRIGHT FOR FOURTEEN YEARS FROM PUBLICATION, AND AFTER THE
EXPIRATION OF SUCH TERM, IF THE AUTHOR WAS STILL LIVING, THE COPYRIGHT
COULD BE RENEWED FOR ANOTHER FOURTEEN YEARS.  THE STATUTE DID NOT
EXPRESSLY PROVIDE THAT THE AUTHOR COULD ASSIGN HIS RENEWAL INTEREST
DURING THE ORIGINAL COPYRIGHT TERM.  BUT THE ENGLISH COURTS HELD THAT
THE AUTHOR'S RIGHT OF RENEWAL, ALTHOUGH CONTINGENT UPON HIS SURVIVING
THE ORIGINAL FOURTEEN-YEAR PERIOD, COULD BE ASSIGNED, AND THAT IF HE
DID SURVIVE THE ORIGINAL TERM HE WAS BOUND BY THE ASSIGNMENT.  CARNAN
V. BOWLES, 2 BRO. C.C. 80; RUNDELL V. MURRAY, JAC.  311; SEE MAUGHAM,
LAW OF LITERARY PROPERTY (1828) 73; CURTIS ON COPYRIGHT (1847) 235. 
SUBSEQUENT ENGLISH LEGISLATION ELIMINATED THE PROBLEM BY PROVIDING FOR
ONE CONTINUOUS TERM OF COPYRIGHT.  IN 1814 THE STATUTE WAS AMENDED TO
PROVIDE THAT THE AUTHOR AND HIS ASSIGNS SHOULD HAVE THE COPYRIGHT FOR
TWENTY-EIGHT YEARS, "AND ALSO, IF THE AUTHOR SHALL BE LIVING AT THE END
OF THAT PERIOD, FOR THE RESIDUE OF HIS NATURAL LIFE."  54 GEO. III, C.
156.  IN 1842 THE COPYRIGHT TERM WAS EXTENDED TO FORTY-TWO YEARS OR THE
LIFE OF THE AUTHOR AND SEVEN YEARS, WHICHEVER SHOULD PROVE LONGER.  5 &
6 VICT., C. 45; SEE MACGILLIVRAY, LAW OF COPYRIGHT (1902) 56-57.  THE
ENGLISH LAW TODAY, WITH MINOR QUALIFICATIONS NOT RELEVANT HERE, GIVES
THE AUTHOR AND HIS ASSIGNS THE EXCLUSIVE COPYRIGHT FOR THE LIFE OF THE
AUTHOR AND FIFTY YEARS AFTER HIS DEATH.  COPYRIGHT ACT OF 1911, 1 & 2
GEO. V, C. 34; SEE OLDFIELD, LAW OF COPYRIGHT (1912) 60-66; ROBERTSON,
LAW OF COPYRIGHT (1912) 44-50; COPINGER, LAW OF COPYRIGHT (7TH ED.
1936) 78-86. 

IN THIS COUNTRY, THE COPYRIGHT LAWS ENACTED BY THE ORIGINAL THIRTEEN
STATES PRIOR TO 1789 WERE BASED LARGELY UPON THE STATUTE OF ANNE.  IN
1783 THE CONTINENTAL CONGRESS PASSED A RESOLUTION CALLING UPON THE
STATES TO ADOPT COPYRIGHT LEGISLATION FOR THE PROTECTION OF AUTHORS AND
PUBLISHERS.  THE RESOLUTION RECOMMENDED THAT COPYRIGHT BE GIVEN TO
AUTHORS AND PUBLISHERS "FOR A CERTAIN TIME, NOT LESS THAN FOURTEEN
YEARS FROM THE FIRST PUBLICATION; AND TO SECURE TO THE SAID AUTHORS, IF
THEY SHALL SURVIVE THE TERM FIRST MENTIONED, AND TO THEIR EXECUTORS,
ADMINISTRATORS AND ASSIGNS, THE COPYRIGHT OF SUCH BOOKS FOR ANOTHER
TERM OF TIME NOT LESS THAN FOURTEEN YEARS."  JOURNALS OF THE
CONTINENTAL CONGRESS, 1774-1789(1922), VOL. XXIV, PP. 326-27.  WHEN THE
RESOLUTION WAS ADOPTED, LAWS GOVERNING COPYRIGHTS WERE ON THE STATUTE
BOOKS OF AT LEAST THREE STATES, CONNECTICUT, MASSACHUSETTS, AND
MARYLAND.  THE CONNECTICUT AND MARYLAND STATUTES SUBSTANTIALLY FOLLOWED
THE STATUTE OF ANNE:  IN BOTH STATES COPYRIGHT WAS GRANTED FOR A TERM
OF FOURTEEN YEARS, RENEWABLE FOR ANOTHER TERM OF THE SAME LENGTH IF THE
AUTHOR SURVIVED THE ORIGINAL TERM.  CONNECTICUT, ACTS & LAWS (GREEN,
1783) 617-19; MARYLAND, LAWS (GREEN, 1783) C. 34.  THE MARYLAND STATUTE
EMPLOYED THE PHRASEOLOGY OF THE STATUTE OF ANNE, PROVIDING SIMPLY THAT
THE PRIVILEGE OF RENEWAL BELONGED TO THE AUTHOR.  THE CONNECTICUT
STATUTE, HOWEVER, EXPLICITLY INCORPORATED THE CONSTRUCTION MADE BY THE
ENGLISH COURTS, AND CONFERRED THE RIGHT OF RENEWAL UPON THE AUTHOR AND
"HIS HEIRS AND ASSIGNS."  THE MASSACHUSETTS STATUTE CREATED A SINGLE
COPYRIGHT TERM OF TWENTY-ONE YEARS.  MASSACHUSETTS, ACTS & LAWS (EDES,
1783) 236. 

IN RESPONSE TO THE RESOLUTION OF THE CONGRESS, NINE OF THE TEN OTHER
STATES ENACTED COPYRIGHT LEGISLATION.  ONLY DELAWARE DID NOT ADOPT A
COPYRIGHT STATUTE.  FIVE STATES ACCEPTED THE RECOMMENDATION OF THE
CONGRESS AND FOLLOWED THE STATUTE OF ANNE:  TWO COPYRIGHT TERMS OF
FOURTEEN YEARS, THE SECOND TERM CONTINGENT UPON THE AUTHOR'S SURVIVING
THE FIRST.  NEW JERSEY, ACTS OF THE GENERAL ASSEMBLY (COLLINS, 1783) C.
21; PENNSYLVANIA, LAWS (BRADFORD, 1784) C. 125; SOUTH CAROLINA, ACTS,
ORDINANCES AND RESOLVES (MILLER, 1784) 49-51; CANDLER, COLONIAL RECORDS
OF GEORGIA (1911), VOL. XIX, PART 2, PP. 485-89; LAWS OF NEW YORK,
1786, C. 54.  FOUR OF THESE, LIKE THE EARLIER CONNECTICUT STATUTE,
EXPLICITLY PROVIDED THAT THE RIGHT OF RENEWAL COULD BE EXERCISED BY THE
AUTHOR'S HEIRS AND ASSIGNS, NAMELY, NEW JERSEY, PENNSYLVANIA, GEORGIA,
AND NEW YORK.  THE FOUR REMAINING STATES ENACTED STATUTES PROVIDING FOR
SINGLE TERMS OF VARYING LENGTHS, RANGING FROM FOURTEEN TO TWENTY-ONE
YEARS.  NEW HAMPSHIRE, LAWS (MELCHER, 1789) 161-62; RHODE ISLAND, ACTS
AND RESOLVES (CARTER, 1783) 6-7; VIRGINIA, ACTS (DUNLAP & HAYES, 1785)
8-9; NORTH CAROLINA, LAWS 1785, C. 24. 

EXERCISING THE POWER GRANTED BY ARTICLE 1, SEC. 8 OF THE CONSTITUTION
- "TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY SECURING FOR
LIMITED TIMES TO AUTHORS AND INVENTORS THE EXCLUSIVE RIGHT TO THEIR
RESPECTIVE WRITINGS AND DISCOVERIES" - THE FIRST CONGRESS ENACTED A
COPYRIGHT STATUTE, THE ACT OF MAY 31, 1790, 1 STAT. 124.  AS MIGHT HAVE
BEEN EXPECTED, THIS ACT REFLECTED ITS HISTORICAL ANTECEDENTS.  THE
AUTHOR WAS GIVEN THE COPYRIGHT FOR FOURTEEN YEARS AND "IF, AT THE
EXPIRATION OF THE SAID TERM, THE AUTHOR OR AUTHORS, OR ANY OF THEM, BE
LIVING, AND A CITIZEN OR CITIZENS OF THESE UNITED STATES, OR RESIDENT
THEREIN, THE SAME EXCLUSIVE RIGHT SHALL BE CONTINUED TO HIM OR THEM,
HIS OR THEIR EXECUTORS, ADMINISTRATORS OR ASSIGNS, FOR THE FURTHER TERM
OF FOURTEEN YEARS."  1 STAT. 124.  IN VIEW OF THE LANGUAGE AND HISTORY
OF THIS PROVISION, THERE CAN BE NO DOUBT THAT IF THE PRESENT CASE HAD
ARISEN UNDER THE ACT OF 1790, THERE WOULD BE NO STATUTORY RESTRICTION
UPON THE ASSIGNABILITY OF THE AUTHOR'S RENEWAL INTEREST.  THE
PETITIONERS CONTEND, HOWEVER, THAT SUCH A LIMITATION WAS INTRODUCED BY
SUBSEQUENT LEGISLATION, PARTICULARLY THE COPYRIGHT ACTS OF 1831 AND
1909. 

THE ACT OF FEBRUARY 3, 1831, 4 STAT. 436, AMENDED THE 1790 ACT IN TWO
IMPORTANT RESPECTS:  THE ORIGINAL TERM WAS INCREASED FROM FOURTEEN TO
TWENTY-EIGHT YEARS, AND THE RENEWAL TERM, ALTHOUGH STILL ONLY FOURTEEN
YEARS LONG, COULD PASS TO THE AUTHOR'S WIDOW OR CHILDREN IF HE DID NOT
SURVIVE THE ORIGINAL TERM.  THE RENEWAL PROVISION, LIKE THE STATUTE OF
ANNE, DID NOT REFER TO THE AUTHOR'S "ASSIGNS."  THE PURPOSE OF THESE
CHANGES, AS STATED IN THE REPORT OF THE COMMITTEE ON THE JUDICIARY OF
THE HOUSE OF REPRESENTATIVES WAS "CHIEFLY TO ENLARGE THE PERIOD FOR THE
ENJOYMENT OF COPY-RIGHT, AND THEREBY TO PLACE AUTHORS IN THIS COUNTRY
MORE NEARLY UPON AN EQUALITY WITH AUTHORS IN OTHER COUNTRIES.  ...  IN
THE UNITED STATES, BY THE EXISTING LAWS, A COPY-RIGHT IS SECURED TO THE
AUTHOR, IN THE FIRST INSTANCE, FOR FOURTEEN YEARS; AND IF, AT THE END
OF THAT PERIOD, HE BE LIVING, THEN FOR FOURTEEN YEARS MORE; BUT, IF HE
BE NOT THEN LIVING, THE COPY-RIGHT IS DETERMINED, ALTHOUGH, BY THE VERY
EVENT OF THE DEATH OF THE AUTHOR, HIS FAMILY STAND IN MORE NEED OF THE
ONLY MEANS OF SUBSISTENCE ORDINARILY LEFT TO THEM."  REGISTER OF
DEBATES, VOL. 7, APPENDIX CXIX. 

PLAINLY, THEREFORE, THE COPYRIGHT ACT OF 1831 MERELY ENLARGED THE
BENEFITS OF THE COPYRIGHT; IT EXTENDED THE LENGTH OF THE ORIGINAL TERM
AND GAVE THE AUTHOR'S WIDOW AND CHILDREN THAT WHICH THERETOFORE THEY
DID NOT POSSESS, NAMELY, THE RIGHT OF RENEWAL TO WHICH THE AUTHOR WOULD
HAVE BEEN ENTITLED IF HE HAD SURVIVED THE ORIGINAL TERM.  THE
PETITIONERS ATTACH MUCH SIGNIFICANCE TO A SENTENCE APPEARING IN THE
REPORT OF THE COMMITTEE:  "THE QUESTION IS, WHETHER THE AUTHOR OR THE
BOOKSELLER SHOULD RECEIVE THE REWARD."  IBID. THE MEANING OF THIS
SENTENCE, READ IN ITS CONTEXT, IS QUITE CLEAR.  BY PROVIDING THAT, IF
THE AUTHOR SHOULD NOT SURVIVE THE ORIGINAL TERM, HIS RENEWAL INTEREST
SHOULD, INSTEAD OF FALLING INTO THE PUBLIC DOMAIN, PASS TO HIS WIDOW
AND CHILDREN, CONGRESS WAS OF COURSE PREFERRING THE AUTHOR TO THE
BOOKSELLER.  BUT NEITHER EXPRESSLY NOR IMPLIEDLY DID THE ACT OF 1831
IMPOSE ANY RESTRAINTS UPON THE RIGHT OF THE AUTHOR HIMSELF TO ASSIGN
HIS CONTINGENT INTEREST IN THE RENEWAL.  THAT THE ACT CONTAINED NO SUCH
LIMITATION WAS ACCEPTED WITHOUT QUESTION BOTH BY THE COURTS, SEE
PIERPONT V. FOWLE, 19 FED. CAS. 652(C.C. MASS. 1846), AND PAIGE V.
BANKS, 13 WALL.  608, WITH WHICH COMPARE WHITE-SMITH MUSIC PUB. CO. V.
GOFF, 187 F. 247, 250-53, AND BY COMMENTATORS, SEE CURTIS ON COPYRIGHT
(1847) 235; 2 MORGAN, LAW OF LITERATURE (1875) 229-30; SPALDING, LAW OF
COPYRIGHT (1878) 111; DRONE ON COPYRIGHT (1879) 326-32; BOWKER ON
COPYRIGHT (1886) 20, 34; 2 KENT'S COMMENTARIES (12TH ED. 1873) 510;
SOLBERG, COPYRIGHT PROTECTION AND STATUTORY FORMALITIES (1904) 24. 
REPRESENTATIVE ELLSWORTH, FN4  WHO SUBMITTED THE COMMITTEE REPORT ON
THE BILL THAT BECAME THE COPYRIGHT ACT OF 1831, HIMSELF STATED
UNEQUIVOCALLY THAT AN AGREEMENT TO ASSIGN THE RENEWAL WAS BINDING UPON
THE AUTHOR.  SEE ELLSWORTH, COPY-RIGHT MANUAL (1862) 29. 

WE COME, FINALLY, TO THE COPYRIGHT ACT OF MARCH 4, 1909, 35 STAT.
1075, WHICH, EXCEPT FOR SOME MINOR AMENDMENTS NOT RELEVANT HERE, IS THE
STATUTE IN EFFECT AT THE PRESENT TIME.  IN DECEMBER, 1905, PRESIDENT
THEODORE ROOSEVELT URGED THE CONGRESS TO UNDERTAKE A REVISION OF THE
COPYRIGHT LAWS.  H. DOC. 1, 59TH CONG., 1ST SESS., P. LII.  IN RESPONSE
TO THIS MESSAGE THE LIBRARIAN OF CONGRESS, UNDER WHOSE AUTHORITY THE
COPYRIGHT OFFICE FUNCTIONS, INVITED PERSONS INTERESTED IN COPYRIGHT
LEGISLATION TO ATTEND A CONFERENCE FOR THE PURPOSE OF DEVISING A
SATISFACTORY MEASURE.  SEVERAL CONFERENCES WERE HELD IN 1905 AND 1906,
RESULTING IN A BILL WHICH WAS INTRODUCED IN THE HOUSE AND SENATE BY THE
CHAIRMAN OF THE COMMITTEE ON PATENTS IN EACH BODY.  THIS BILL (H.R.
19853 AND S. 6330, 59TH CONG., 1ST SESS.) PROVIDED, IN THE CASE OF
BOOKS AND MUSICAL COMPOSITIONS, FOR A SINGLE COPYRIGHT TERM LASTING FOR
THE LIFE OF THE AUTHOR AND FOR FIFTY YEARS THEREAFTER.  JOINT HEARINGS
BY THE HOUSE AND SENATE COMMITTEES WERE HELD ON THIS BILL, BUT NO
ACTION WAS TAKEN BY THE FIFTY-NINTH CONGRESS.  AT THE NEXT SESSION OF
CONGRESS, THIS AND OTHER BILLS TO REVISE THE COPYRIGHT LAWS WERE AGAIN
INTRODUCED.  EXTENSIVE PUBLIC HEARINGS WERE HELD.  THE RESULT OF THIS
ELABORATE LEGISLATIVE CONSIDERATION OF THE PROBLEM OF COPYRIGHT WAS A
BILL (H.R. 28192; S. 9440) WHICH BECAME THE COPYRIGHT ACT OF 1909.  AS
STATED IN THE REPORT OF THE HOUSE COMMITTEE, THIS BILL "DIFFERS IN MANY
RESPECTS FROM ANY OF THE BILLS PREVIOUSLY INTRODUCED.  YOUR COMMITTEE
BELIEVES THAT IN ALL ITS ESSENTIAL FEATURES IT FAIRLY MEETS AND SOLVES
THE DIFFICULT PROBLEMS WITH WHICH THE COMMITTEE HAD TO DEAL  ...  "  H.
REP. 2222, 60TH CONG., 2D SESS., P. 4.  UNDER THE BILL, COPYRIGHT WAS
GIVEN FOR TWENTY-EIGHT YEARS, WITH A RENEWAL PERIOD OF THE SAME
DURATION.  THE REPORT OF THE HOUSE COMMITTEE INDICATES THE REASONS FOR
THIS PROVISION.  THIS SECTION OF THE REPORT, TO WHICH MUCH IMPORTANCE
HAS BEEN ATTACHED BY THE JUDGES OF THE COURT BELOW AND BY THE PARTIES,
MUST BE READ IN THE LIGHT OF THE SPECIFIC PROBLEM WITH WHICH THE
CONGRESS WAS PRESENTED: SHOULD THERE BE ONE LONG TERM, AS WAS PROVIDED
FOR IN THE BILL RESULTING FROM THE CONFERENCES HELD BY THE LIBRARIAN OF
CONGRESS, OR SHOULD THERE BE TWO SHORTER TERMS?  THE HOUSE AND SENATE
COMMITTEES CHOSE THE LATTER ALTERNATIVE.  THEY WERE AWARE THAT AN
ASSIGNMENT BY THE AUTHOR OF HIS "COPYRIGHT" IN GENERAL TERMS DID NOT
INCLUDE CONVEYANCE OF HIS RENEWAL INTEREST.  SEE PIERPONT V. FOWLE, 19
FED. CAS. 652(C.C. MASS. 1846); 2 MORGAN, LAW OF LITERATURE (1875) 229
30; MACGILLIVRAY, LAW OF COPYRIGHT (1902) 267.  DURING THE HEARINGS OF
THE JOINT COMMITTEE, REPRESENTATIVE CURRIER THE CHAIRMAN OF THE HOUSE
COMMITTEE, REFERRED TO THE DIFFICULTIES ENCOUNTERED BY MARK TWAIN: 

"MR. CLEMENS TOLD ME THAT HE SOLD THE COPYRIGHT FOR INNOCENTS ABROAD
FOR A VERY SMALL SUM, AND HE GOT VERY LITTLE OUT OF THE INNOCENTS
ABROAD UNTIL THE TWENTY-EIGHT-YEAR PERIOD EXPIRED, AND THEN HIS
CONTRACT DID NOT COVER THE RENEWAL PERIOD, AND IN THE FOURTEEN YEARS OF
THE RENEWAL PERIOD HE WAS ABLE TO GET OUT OF IT ALL OF THE PROFITS." 
(HEARINGS BEFORE THE COMMITTEES ON PATENTS OF THE SENATE AND HOUSE OF
REPRESENTATIVES ON PENDING BILLS TO AMEND AND CONSOLIDATE THE ACTS
RESPECTING COPYRIGHT, 60TH CONG., 1ST SESS., P. 20.) 

BY PROVIDING FOR TWO COPYRIGHT TERMS, EACH OF RELATIVELY SHORT
DURATION, CONGRESS ENABLED THE AUTHOR TO SELL HIS "COPYRIGHT" WITHOUT
LOSING HIS RENEWAL INTEREST.  IF THE AUTHOR'S COPYRIGHT EXTENDED OVER A
SINGLE, LONGER TERM, HIS SALE OF THE "COPYRIGHT" WOULD TERMINATE HIS
ENTIRE INTEREST.  THAT THIS IS THE BASIC CONSIDERATION OF POLICY
UNDERLYING THE RENEWAL PROVISION OF THE COPYRIGHT ACT OF 1909 CLEARLY
APPEARS FROM THE REPORT OF THE HOUSE COMMITTEE WHICH SUBMITTED THE
LEGISLATION (THE SENATE COMMITTEE ADOPTED THE REPORT OF THE HOUSE
COMMITTEE, SEE SEN. REP. 1108, 60TH CONG., 2D SESS.): 

"SECTION 23 DEALS WITH THE TERM OF THE COPYRIGHT.  UNDER EXISTING LAW
THE COPYRIGHT TERM IS TWENTY-EIGHT YEARS, WITH THE RIGHT OF RENEWAL BY
THE AUTHOR, OR BY THE AUTHOR'S WIDOW OR CHILDREN IF HE BE DEAD, FOR A
FURTHER TERM OF FOURTEEN YEARS.  THE ACT OF 1790 PROVIDED FOR AN
ORIGINAL TERM OF FOURTEEN YEARS, WITH THE RIGHT OF RENEWAL FOR FOURTEEN
YEARS.  THE ACT OF 1831 EXTENDED THE TERM TO ITS PRESENT LENGTH.  IT
WAS URGED BEFORE THE COMMITTEE THAT IT WOULD BE BETTER TO HAVE A SINGLE
TERM WITHOUT ANY RIGHT OF RENEWAL, AND A TERM OF LIFE AND FIFTY YEARS
WAS SUGGESTED.  YOUR COMMITTEE, AFTER FULL CONSIDERATION, DECIDED THAT
IT WAS DISTINCTLY TO THE ADVANTAGE OF THE AUTHOR TO PRESERVE THE
RENEWAL PERIOD.  IT NOT INFREQUENTLY HAPPENS THAT THE AUTHOR SELLS HIS
COPYRIGHT OUTRIGHT TO A PUBLISHER FOR A COMPARATIVELY SMALL SUM.  IF
THE WORK PROVES TO BE A GREAT SUCCESS AND LIVES BEYOND THE TERM OF
TWENTY-EIGHT YEARS, YOUR COMMITTEE FELT THAT IT SHOULD BE THE EXCLUSIVE
RIGHT OF THE AUTHOR TO TAKE THE RENEWAL TERM, AND THE LAW SHOULD BE
FRAMED AS IS THE EXISTING LAW, SO THAT HE COULD NOT BE DEPRIVED OF THAT
RIGHT. 

"THE PRESENT TERM OF TWENTY-EIGHT YEARS, WITH THE RIGHT OF RENEWAL
FOR FOURTEEN YEARS, IN MANY CASES IS INSUFFICIENT.  THE TERMS, TAKEN
TOGETHER, OUGHT TO BE LONG ENOUGH TO GIVE THE AUTHOR THE EXCLUSIVE
RIGHT TO HIS WORK FOR SUCH A PERIOD THAT THERE WOULD BE NO PROBABILITY
OF ITS BEING TAKEN AWAY FROM HIM IN HIS OLD AGE, WHEN, PERHAPS, HE
NEEDS IT THE MOST.  A VERY SMALL PERCENTAGE OF THE COPYRIGHTS ARE EVER
RENEWED.  ALL USE OF THEM CEASES IN MOST CASES LONG BEFORE THE
EXPIRATION OF TWENTY-EIGHT YEARS.  IN THE COMPARATIVELY FEW CASES WHERE
THE WORK SURVIVES THE ORIGINAL TERM THE AUTHOR OUGHT TO BE GIVEN AN
ADEQUATE RENEWAL TERM.  IN THE EXCEPTIONAL CASE OF A BRILLIANT WORK OF
LITERATURE, ART, OR MUSICAL COMPOSITION IT CONTINUES TO HAVE A VALUE
FOR A LONG PERIOD, BUT THIS VALUE IS DEPENDENT UPON THE MERIT OF THE
COMPOSITION.  JUST IN PROPORTION AS THE COMPOSITION IS MERITORIOUS AND
DESERVING WILL IT CONTINUE TO BE PROFITABLE, PROVIDED THE COPYRIGHT IS
EXTENDED SO LONG; AND IT IS BELIEVED THAT IN ALL SUCH CASES WHERE THE
MERIT IS VERY HIGH THIS TERM IS CERTAINLY NOT TOO LONG. 

"YOUR COMMITTEE DO NOT FAVOR AND THE BILL DOES NOT PROVIDE FOR ANY
EXTENSION OF THE ORIGINAL TERM OF TWENTY-EIGHT YEARS, BUT IT DOES
PROVIDE FOR AN EXTENSION OF THE RENEWAL TERM FROM FOURTEEN YEARS TO
TWENTY-EIGHT YEARS; AND IT MAKES SOME CHANGE IN EXISTING LAW AS TO
THOSE WHO MAY APPLY FOR THE RENEWAL.  INSTEAD OF CONFINING THE RIGHT OF
RENEWAL TO THE AUTHOR, IF STILL LIVING, OR TO THE WIDOW OR CHILDREN OF
THE AUTHOR, IF HE BE DEAD, WE PROVIDE THAT THE AUTHOR OF SUCH WORK, IF
STILL LIVING, MAY APPLY FOR THE RENEWAL, OR THE WIDOW, WIDOWER, OR
CHILDREN OF THE AUTHOR, IF THE AUTHOR BE NOT LIVING, OR IF SUCH AUTHOR,
WIDOW, WIDOWER, OR CHILDREN BE NOT LIVING, THEN THE AUTHOR'S EXECUTORS,
OR, IN THE ABSENCE OF A WILL, HIS NEXT OF KIN.  IT WAS NOT THE
INTENTION TO PERMIT THE ADMINISTRATOR TO APPLY FOR THE RENEWAL, BUT TO
PERMIT THE AUTHOR WHO HAD NO WIFE OR CHILDREN TO BEQUEATH BY WILL THE
RIGHT TO APPLY FOR THE RENEWAL."  (H. REP. 2222, 60TH CONG., 2D SESS.,
PP. 14-15.) 

THE REPORT CANNOT BE TORTURED, BY READING IT WITHOUT REGARD TO THE
CIRCUMSTANCES IN WHICH IT WAS WRITTEN, INTO AN EXPRESSION OF A
LEGISLATIVE PURPOSE TO NULLIFY AGREEMENTS BY AUTHORS TO ASSIGN THEIR
RENEWAL INTERESTS.  IF CONGRESS, SPEAKING THROUGH ITS RESPONSIBLE
MEMBERS, HAD ANY INTENTION OF ALTERING WHAT THERETOFORE HAD NOT BEEN
QUESTIONED, NAMELY, THAT THERE WERE NO STATUTORY RESTRAINTS UPON THE
ASSIGNMENT BY AUTHORS OF THEIR RENEWAL RIGHTS, IT IS ALMOST CERTAIN
THAT SUCH PURPOSE WOULD HAVE BEEN MANIFESTED.  THE LEGISLATIVE
MATERIALS REVEAL NO SUCH INTENTION. 

WE AGREE WITH THE COURT BELOW, THEREFORE, THAT NEITHER THE LANGUAGE
NOR THE HISTORY OF THE COPYRIGHT ACT OF 1909 LEND SUPPORT TO THE
CONCLUSION THAT THE "EXISTING LAW" PRIOR TO 1909, UNDER WHICH AUTHORS
WERE FREE TO ASSIGN THEIR RENEWAL INTERESTS IF THEY WERE SO DISPOSED,
WAS INTENDED TO BE ALTERED.  WE AGREE, ALSO, THAT THERE ARE NO
COMPELLING CONSIDERATIONS OF POLICY WHICH COULD JUSTIFY READING INTO
THE ACT A CONSTRUCTION SO AT VARIANCE WITH ITS HISTORY.  THE POLICY OF
THE COPYRIGHT LAW, WE ARE TOLD, IS TO PROTECT THE AUTHOR - IF NEED BE,
FROM HIMSELF - AND A CONSTRUCTION UNDER WHICH THE AUTHOR IS POWERLESS
TO ASSIGN HIS RENEWAL INTEREST FURTHERS THIS POLICY.  WE ARE ASKED TO
RECOGNIZE THAT AUTHORS ARE CONGENITALLY IRRESPONSIBLE, THAT FREQUENTLY
THEY ARE SO SORELY PRESSED FOR FUNDS THAT THEY ARE WILLING TO SELL
THEIR WORK FOR A MERE PITTANCE, AND THEREFORE ASSIGNMENTS MADE BY THEM
SHOULD NOT BE UPHELD.  IT IS IMPORTANT THAT WE DISTINGUISH BETWEEN TWO
PROBLEMS IMPLIED IN THESE SITUATIONS:  WHETHER, DESPITE THE CONTRARY
DIRECTION GIVEN TO THIS LEGISLATION BY THE MOMENTUM OF HISTORY, WE ARE
TO IMPUTE TO CONGRESS THE ENACTMENT OF AN ABSOLUTE STATUTORY BAR
AGAINST ASSIGNMENTS OF AUTHORS' RENEWAL INTERESTS, AND SECONDLY,
WHETHER, ALTHOUGH THERE BE NO SUCH STATUTORY BAR, A PARTICULAR
ASSIGNMENT SHOULD BE DENIED ENFORCEMENT BY THE COURTS BECAUSE IT WAS
MADE UNDER OPPRESSIVE CIRCUMSTANCES.  THE FIRST QUESTION ALONE IS
PRESENTED HERE, AND WE MAKE NO INTIMATIONS UPON THE OTHER.  IT IS ONE
THING TO HOLD THAT THE COURTS SHOULD NOT MAKE THEMSELVES INSTRUMENTS OF
INJUSTICE BY LENDING THEIR AID TO THE ENFORCEMENT OF AN AGREEMENT WHERE
THE AUTHOR WAS UNDER SUCH COERCION OF CIRCUMSTANCES THAT ENFORCEMENT
WOULD BE UNCONSCIONABLE.  CF. UNION PACIFIC R. CO. V. PUBLIC SERVICE
COMM'N, 248 U.S. 67, 70; LONERGAN V. BUFORD, 148 U.S. 581, 589-91;
SNYDER V. ROSENBAUM, 215 U.S. 261, 265-66; POST V. JONES, 19 HOW.  150,
160; THE ELFRIDA, 172 U.S. 186, 193-94.  IT IS QUITE ANOTHER MATTER TO
HOLD, AS WE ARE ASKED IN THIS CASE, THAT REGARDLESS OF THE
CIRCUMSTANCES SURROUNDING A PARTICULAR ASSIGNMENT, NO AGREEMENTS BY
AUTHORS TO ASSIGN THEIR RENEWAL INTERESTS ARE BINDING. 

IT IS NOT FOR COURTS TO JUDGE WHETHER THE INTERESTS OF AUTHORS
CLEARLY LIE UPON ONE SIDE OF THIS QUESTION RATHER THAN THE OTHER.  IF
AN AUTHOR CANNOT MAKE AN EFFECTIVE ASSIGNMENT OF HIS RENEWAL, IT MAY BE
WORTHLESS TO HIM WHEN HE IS MOST IN NEED.  NOBODY WOULD PAY AN AUTHOR
FOR SOMETHING HE CANNOT SELL.  WE CANNOT DRAW A PRINCIPLE OF LAW FROM
THE FAMILIAR STORIES OF GARRET-POVERTY OF SOME MEN OF LITERARY GENIUS. 
EVEN IF WE COULD DO SO, WE CANNOT SAY THAT SUCH MEN WOULD REGARD WITH
FAVOR A RULE OF LAW PREVENTING THEM FROM REALIZING ON THEIR ASSETS WHEN
THEY ARE MOST IN NEED OF FUNDS.  NOR CAN WE BE UNMINDFUL OF THE FACT
THAT AUTHORS HAVE THEMSELVES DEVISED MEANS OF SAFEGUARDING THEIR
INTERESTS.  WE DO NOT HAVE SUCH ASSURED KNOWLEDGE ABOUT AUTHORSHIP, AND
PARTICULARLY ABOUT SONG WRITING, OR THE PSYCHOLOGY OF GIFTED WRITERS
AND COMPOSERS, AS TO JUSTIFY US AS JUDGES IN IMPORTING INTO
CONGRESSIONAL LEGISLATION A DENIAL TO AUTHORS OF THE FREEDOM TO DISPOSE
OF THEIR PROPERTY POSSESSED BY OTHERS.  WHILE AUTHORS MAY HAVE HABITS
MAKING FOR INTERMITTENT WANT, THEY MAY HAVE NO LESS A SPIRIT OF
INDEPENDENCE WHICH WOULD RESENT TREATMENT OF THEM AS WARDS UNDER
GUARDIANSHIP OF THE LAW. 

WE CONCLUDE, THEREFORE, THAT THE COPYRIGHT ACT OF 1909 DOES NOT
NULLIFY AGREEMENTS BY AUTHORS TO ASSIGN THEIR RENEWAL INTERESTS.  WE
ARE FORTIFIED IN THIS CONCLUSION BY REFERENCE TO THE ACTUAL PRACTICES
OF AUTHORS AND PUBLISHERS WITH RESPECT TO ASSIGNMENTS OF RENEWALS, AS
DISCLOSED BY THE RECORDS OF THE COPYRIGHT OFFICE.  SINCE THE ENACTMENT
OF THE COPYRIGHT ACT OF 1870, 16 STAT. 198, 213, ASSIGNMENTS OF
COPYRIGHTS MUST BE RECORDED IN THE OFFICE OF THE REGISTER OF
COPYRIGHTS.  THE RECORDS OF THE COPYRIGHT OFFICE, WE ARE ADVISED, SHOW
THAT DURING THE PERIOD FROM JULY, 1870, TO JULY, 1871, THE FIRST PERIOD
IN WHICH ASSIGNMENTS WERE RECORDED IN THE OFFICE, 223 ASSIGNMENTS WERE
REGISTERED.  OF THESE 14 WERE ASSIGNMENTS OF RENEWAL INTERESTS. 
SIMILARLY, DURING THE FIRST SIX MONTHS OF 1909, IMMEDIATELY PRECEDING
THE ENACTMENT OF THE COPYRIGHT ACT OF THAT YEAR, 304 ASSIGNMENTS WERE
RECORDED, AND OF THESE 62 WERE ASSIGNMENTS OF RENEWAL INTERESTS.  IN
THE SIX-MONTH PERIOD FOLLOWING THE ENACTMENT OF THE COPYRIGHT ACT OF
1909, THERE WAS NO SIGNIFICANT CHANGE:  404 ASSIGNMENTS, OF WHICH 68
WERE TRANSFERS OF RENEWALS.  AND, TO ROUND OUT THE PICTURE, IN THE MOST
RECENT COMPLETE VOLUME OF RECORDS (COVERING THE PERIOD FROM JANUARY 27,
1943, TO FEBRUARY 12, 1943), 135 ASSIGNMENTS WERE RECORDED, AND OF
THESE 29 WERE ASSIGNMENTS OF RENEWALS.  MANY ASSIGNMENTS HAVE THUS BEEN
ENTERED INTO IN GOOD FAITH UPON THE ASSUMPTION THAT THEY WERE VALID AND
ENFORCEABLE.    IN ADDITION TO ALL OTHER BOOKS AND PAMPHLETS RELEVANT
TO OUR PROBLEM, WE HAVE CONSULTED ALL OF THE TWENTY TREATISES ON THE
AMERICAN LAW OF COPYRIGHT AVAILABLE AT THE LIBRARY OF CONGRESS.  EIGHT
OF THESE STATE, WITHOUT QUALIFICATION, THAT AN AUTHOR CAN EFFECTIVELY
AGREE TO ASSIGN HIS RENEWAL INTEREST BEFORE IT HAS BEEN SECURED; FN5
TWO STATE THE RULE WITH SOME RESERVATIONS; FN6  TEN ARE EITHER SILENT
OR AMBIGUOUS.  FN7  AND THE FORMS OF ASSIGNMENT OF COPYRIGHT IN
TREATISES AND STANDARD FORM-BOOKS GENERALLY CONTAIN A PROVISION
DESIGNED TO TRANSFER THE RENEWAL INTEREST.  FN8 

THE AVAILABLE EVIDENCE INDICATES, THEREFORE, THAT RENEWAL INTERESTS
OF AUTHORS HAVE BEEN REGARDED AS ASSIGNABLE BOTH BEFORE AND AFTER THE
COPYRIGHT ACT OF 1909.  TO HOLD AT THIS LATE DATE THAT, AS A MATTER OF
LAW, SUCH INTERESTS ARE NOT ASSIGNABLE WOULD BE TO REJECT ALL RELEVANT
AIDS TO CONSTRUCTION.  AFFIRMED. 

FN1  THE RELEVANT PROVISIONS OF THE COPYRIGHT ACT READ AS FOLLOWS: 

SEC. 23.  THAT THE COPYRIGHT SECURED BY THIS ACT SHALL ENDURE FOR
TWENTY-EIGHT YEARS FROM THE DATE OF FIRST PUBLICATION, WHETHER THE
COPYRIGHTED WORK BEARS THE AUTHOR'S TRUE NAME OR IS PUBLISHED
ANONYMOUSLY OR UNDER AN ASSUMED NAME:  PROVIDED, THAT IN THE CASE OF
ANY POSTHUMOUS WORK OR OF ANY PERIODICAL, CYCLOPEDIC, OR OTHER
COMPOSITE WORK UPON WHICH THE COPYRIGHT WAS ORIGINALLY SECURED BY THE
PROPRIETOR THEREOF, OR OF ANY WORK COPYRIGHTED BY A CORPORATE BODY
(OTHERWISE THAN AS ASSIGNEE OR LICENSEE OF THE INDIVIDUAL AUTHOR) OR BY
AN EMPLOYER FOR WHOM SUCH WORK IS MADE FOR HIRE, THE PROPRIETOR OF SUCH
COPYRIGHT SHALL BE ENTITLED TO A RENEWAL AND EXTENSION OF THE COPYRIGHT
IN SUCH WORK FOR THE FURTHER TERM OF TWENTY-EIGHT YEARS WHEN
APPLICATION FOR SUCH RENEWAL AND EXTENSION SHALL HAVE BEEN MADE TO THE
COPYRIGHT OFFICE AND DULY REGISTERED THEREIN WITHIN ONE YEAR PRIOR TO
THE EXPIRATION OF THE ORIGINAL TERM OF COPYRIGHT:  AND PROVIDED
FURTHER, THAT IN THE CASE OF ANY OTHER COPYRIGHTED WORK, INCLUDING A
CONTRIBUTION BY AN INDIVIDUAL AUTHOR TO A PERIODICAL OR TO A CYCLOPEDIC
OR OTHER COMPOSITE WORK, THE AUTHOR OF SUCH WORK, IF STILL LIVING, OR
THE WIDOW, WIDOWER, OR CHILDREN OF THE AUTHOR, IF THE AUTHOR BE NOT
LIVING, OR IF SUCH AUTHOR, WIDOW, WIDOWER, OR CHILDREN BE NOT LIVING,
THEN THE AUTHOR'S EXECUTORS, OR IN THE ABSENCE OF A WILL, HIS NEXT OF
KIN SHALL BE ENTITLED TO A RENEWAL AND EXTENSION OF THE COPYRIGHT IN
SUCH WORK FOR A FURTHER TERM OF TWENTY-EIGHT YEARS WHEN APPLICATION FOR
SUCH RENEWAL AND EXTENSION SHALL HAVE BEEN MADE TO THE COPYRIGHT OFFICE
AND DULY REGISTERED THEREIN WITHIN ONE YEAR PRIOR TO THE EXPIRATION OF
THE ORIGINAL TERM OF COPYRIGHT:  AND PROVIDED FURTHER, THAT IN DEFAULT
OF THE REGISTRATION OF SUCH APPLICATION FOR RENEWAL AND EXTENSION, THE
COPYRIGHT IN ANY WORK SHALL DETERMINE AT THE EXPIRATION OF TWENTY-EIGHT
YEARS FROM FIRST PUBLICATION. 

SEC. 42.  THAT COPYRIGHT SECURED UNDER THIS OR PREVIOUS ACTS OF THE
UNITED STATES MAY BE ASSIGNED, GRANTED, OR MORTGAGED BY AN INSTRUMENT
IN WRITING SIGNED BY THE PROPRIETOR OF THE COPYRIGHT, OR MAY BE
BEQUEATHED BY WILL. 

FN2  BALL AND OLCOTT WERE NO LONGER LIVING AT THE TIME, AND UNDER
SEC. 23 OF THE ACT THEIR INTERESTS IN THE RENEWAL PASSED TO THEIR
WIDOWS.  WITMARK IS ALSO THE ASSIGNEE OF MRS. OLCOTT'S INTEREST IN THE
RENEWAL COPYRIGHT, AND MRS. BALL HAS ASSIGNED HER INTEREST TO ANOTHER
MUSIC PUBLISHER.  THE VALIDITY OF NEITHER ASSIGNMENT IS INVOLVED IN
THIS SUIT. 

FN3  IN OPPOSING THE MOTION FOR A PRELIMINARY INJUNCTION, GRAFF
SUBMITTED AN AFFIDAVIT STATING HE "WAS IN DESPERATE FINANCIAL STRAITS"
WHEN HE ENTERED INTO THE AGREEMENT OF MAY 19, 1917.  THE DISTRICT COURT
MADE NO FINDINGS UPON AND DID NOT OTHERWISE DEAL WITH THE ISSUE THAT
THIS ALLEGATION MAY RAISE. 

FN4  WILLIAM WOLCOTT ELLSWORTH, THE SON OF OLIVER ELLSWORTH, THIRD
CHIEF JUSTICE OF THE UNITED STATES.  SEE BIOGRAPHICAL DIRECTORY OF THE
AMERICAN CONGRESS, 1774-1927(1928) 943. 

FN5  CURTIS ON COPYRIGHT (1847) 235; DRONE ON COPYRIGHT (1879) 326
32; HOWELL, COPYRIGHT LAW (1942) 108; 2 MORGAN, LAW OF LITERATURE
(1875) 229-30; SPALDING, LAW OF COPYRIGHT (1878) 111; MACGILLIVRAY, LAW
OF COPYRIGHT (1902) 266-67; WITTENBERG, PROTECTION AND MARKETING OF
LITERARY PROPERTY (1937) 45; LADAS, INTERNATIONAL PROTECTION OF
LITERARY AND ARTISTIC PROPERTY (1938) 772-73. 

FN6  DEWOLF, OUTLINE OF COPYRIGHT LAW (1925) 65-66; WEIL, AMERICAN
COPYRIGHT LAW (1917) 365-66. 

FN7  AMDUR, COPYRIGHT LAW AND PRACTICE (1936) 540-41; FROHLICH AND
SCHWARTZ, LAW OF MOTION PICTURES (1918) 548-49; MARCHETTI, LAW OF
STAGE, SCREEN, AND RADIO (1936) 67; BOWKER, COPYRIGHT - ITS HISTORY AND
ITS LAW (1912) 117, 438; BUMP, LAW OF PATENTS, TRADE-MARKS, LABELS, AND
COPYRIGHTS (2D ED. 1884); ELFRETH, PATENTS, COPYRIGHTS, AND TRADE-MARKS
(1913); GRAHAM, PATENTS, TRADEMARKS AND COPYRIGHTS (2D ED. 1921); LAW,
COPYRIGHT AND PATENT LAWS OF THE UNITED STATES, 1790-1870(2D ED. 1870);
COPINGER, LAW OF COPYRIGHT (7TH ED. 1936); SHAFTER, MUSICAL COPYRIGHT
(2D ED. 1939) 174. 

FN8  WITTENBERG, PROTECTION AND MARKETING OF LITERARY PROPERTY (1937)
195, 261; SHAFTER, MUSICAL COPYRIGHT (2D ED. 1939) 577; GORDON,
ANNOTATED FORMS OF AGREEMENT (1932) 32; 6 WINSLOW, FORMS OF PLEADING
AND PRACTICE (3D ED. 1934) SEC. 8267, PP. 501-02; BIRDSEYE,
ENCYCLOPEDIA OF GENERAL BUSINESS AND LEGAL FORMS (1924) 280-81; AMDUR,
COPYRIGHT LAW AND PRACTICE (1936) 836; CHURCH, LEGAL AND BUSINESS FORMS
(2D ED. 1925) 344. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE MURPHY
CONCLUDE THAT THE ANALYSIS OF THE LANGUAGE AND HISTORY OF THE COPYRIGHT
LAW IN THE DISSENTING OPINION OF JUDGE FRANK IN THE COURT BELOW, 125
F.2D 949, 954, DEMONSTRATES A CONGRESSIONAL PURPOSE TO RESERVE THE
RENEWAL PRIVILEGE FOR THE PERSONAL BENEFIT OF AUTHORS AND THEIR
FAMILIES.  THEY BELIEVE THE JUDGMENT BELOW SHOULD BE REVERSED. 
..END :













DE ZON V. AMER. PRESIDENT LINES, 318 U.S. 660 


NO. 436.  ARGUED FEBRUARY 4, 1943.  - DECIDED APRIL 5, 1943.  - 129 F.2D
404, AFFIRMED. 


1.  A SEAMAN WHO, IN THE COURSE OF HIS EMPLOYMENT, SUFFERS PHYSICAL
INJURY DUE TO THE NEGLECT OR INCOMPETENCE OF THE SHIP'S DOCTOR IN
TREATING HIS ILLNESS HAS A RIGHT OF ACTION AGAINST THE SHIPOWNER UNDER
THE JONES ACT.  P. 668. 

2.  TO SUCH AN ACTION IT IS NO DEFENSE THAT THE SHIPOWNER USED DUE
CARE IN SELECTING THE SHIP'S DOCTOR.  P. 664. 

3.  IN THIS CASE, INVOLVING THE RIGHT OF A SEAMAN TO RECOVER FOR
INJURY TO AND FOR THE LOSS OF AN EYE, ALLEGED TO HAVE RESULTED FROM
NEGLIGENCE OF THE SHIP'S DOCTOR IN HIS DIAGNOSIS, OR IN HIS FAILURE TO
SEND THE SEAMAN TO A HOSPITAL AT A PORT OF CALL, THERE WAS NOT
SUFFICIENT EVIDENCE OF NEGLIGENCE TO REQUIRE SUBMISSION TO THE JURY. 
P. 671. 

DE ZON V. AMERICAN PRESIDENT LINES, LTD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 317 U.S. 617, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
ON A DIRECTED VERDICT IN AN ACTION FOR DAMAGES FOR PERSONAL INJURIES
BROUGHT BY A SEAMAN AGAINST HIS EMPLOYER, THE ABOVE-NAMED STEAMSHIP
COMPANY. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A SEAMAN, BROUGHT AN ACTION AT LAW UNDER THE JONES ACT
FN1  AGAINST THE RESPONDENT SHIPOWNER.  HE ALLEGED THAT WHILE IN THE
SERVICE OF ITS SHIP HE SUFFERED INJURIES WHICH RESULTED IN THE LOSS OF
HIS RIGHT EYE, BECAUSE OF THE NEGLIGENCE OF THE SHIP'S DOCTOR IN
TREATING HIM AND IN FAILING TO HAVE HIM HOSPITALIZED ASHORE.  THE TRIAL
COURT DIRECTED A VERDICT AGAINST HIM.  THE CIRCUIT COURT OF APPEALS
AFFIRMED FOR THE REASON, AMONG OTHERS, THAT THE SHIPOWNER'S DUTY TO THE
SEAMAN WAS ONLY TO USE DUE CARE IN SELECTING A COMPETENT PHYSICIAN AND,
THAT BEING DONE, WAS NOT RESPONSIBLE FOR HIS INCOMPETENCE OR
NEGLIGENCE.  129 F.2D 404.  THIS HOLDING RAISED AN IMPORTANT QUESTION
OF FEDERAL LAW UNDER THE JONES ACT NOT PASSED ON HERETOFORE BY THIS
COURT.  ACCORDINGLY WE GRANTED CERTIORARI.  317 U.S. 617. 

THE PETITIONER SIGNED ARTICLES AS A MARINE FIREMAN FOR A VOYAGE, FROM
SAN FRANCISCO TO THE ORIENT AND RETURN, ON THE RESPONDENT'S PASSENGER
SHIP PRESIDENT TAFT.  THE VOYAGE WAS OF ABOUT SIXTY DAYS' DURATION,
ENDING AT THE HOME PORT ON JUNE 10, 1940.  ON JUNE 3, WHILE PETITIONER
WAS PAINTING THE OUTSIDE OF A BOILER, A CHIP OF DRY ALUMINUM PAINT
LODGED IN HIS RIGHT EYE, FOLLOWED PROBABLY BY GETTING SOME OF THE
LIQUID PAINT IN AS WELL.  HE WENT TO HIS QUARTERS AND WASHED THE EYE
WITH A WASH IN AN EYE CUP.  AT THIS TIME HE DID NOT BELIEVE THAT
ANYTHING WAS SERIOUSLY AMISS WITH HIS EYE, AND HE RETURNED TO WORK. 
WHEN HE AROSE THE NEXT MORNING HE WAS SUFFERING CONSIDERABLY FROM HIS
EYE.  HE TOLD THE SHIP'S DOCTOR OF THIS HISTORY, AND THE DOCTOR
EXAMINED HIS EYE WITHOUT THE AID OF ANY SPECIAL EQUIPMENT, WASHED IT
OUT WITH A BORIC SOLUTION, IRRIGATED IT WITH ARGYROL, AND BANDAGED IT.
HE TOLD PETITIONER NOT TO WORK, AND THE PETITIONER REPAIRED TO HIS
QUARTERS AND STAYED THERE UNTIL THE SHIP CAME INTO HONOLULU, ABOUT 4:00
IN THE AFTERNOON.  THEN THE SHIP'S DOCTOR GAVE HIM AUTHORITY FROM THE
MASTER TO GO ASHORE FOR EXAMINATION AT THE OUTPATIENT DEPARTMENT OF THE
MARINE HOSPITAL IN HONOLULU.  PETITIONER FOUND THIS CLOSED, AND WENT TO
QUEENS HOSPITAL.  THERE HE WAS EXAMINED BY DOCTOR YAP, A PHYSICIAN OF
UNSPECIFIED QUALIFICATIONS, WHO DIAGNOSED THE INJURY AS "ACUTE
TRAUMATIC CONJUNCTIVITIS" (INJURY TO OUTER COATING OF EYE RESULTING
FROM A BLOW), WASHED OUT THE EYE WITH A BORIC ACID WASH, AND APPLIED
YELLOW OXIDE AND AN EYE PAD.  DOCTOR YAP TOLD THE PETITIONER THAT HE
COULD NOT DO MUCH FOR HIM, BUT ADVISED PETITIONER TO GET OFF THE SHIP
AND BE HOSPITALIZED ASHORE.  THE PETITIONER RETURNED TO THE SHIP,
ARRIVING AT ABOUT 6:00 IN THE EVENING.  THE SHIP'S DOCTOR WAS ASHORE,
AND, SINCE THE PETITIONER DID NOT FEEL WELL, THE SHIP'S MEDICAL ORDERLY
PUT HIM TO BED.  FORTY MINUTES BEFORE SAILING TIME, THE SHIP'S DOCTOR
RETURNED.  HE SAW PETITIONER AT 11:30 AND WAS INFORMED OF DOCTOR YAP'S
RECOMMENDATION, THEN TOLD THE PETITIONER THAT:  "WELL, IF YOU WANT TO
TAKE A CHANCE OR A GAMBLE ON IT YOU CAN GO ON TO THE STATES.  IT DON'T
LOOK SO BAD.  IT CAN BE ALL RIGHT."  THE PETITIONER ANSWERED:  "YOU ARE
THE BOSS; IF YOU WANT TO GO, LET'S GO." 

THE SHIP SAILED AT 12:00 MIDNIGHT ON JUNE 4, WITH PETITIONER
HOSPITALIZED ABOARD.  THE PETITIONER'S INJURED RIGHT EYE GOT STEADILY
WORSE, AND, IN THE SHIP'S DOCTOR'S TERM, WAS IN AN "ALARMING" CONDITION
TWO OR THREE DAYS LATER.  THE SHIP'S DOCTOR SOUGHT THE ADVICE OF
ANOTHER DOCTOR, A PASSENGER, WHO HAD RESIDED IN THE ORIENT AND WAS
FAMILIAR WITH EYE INFECTIONS COMMON THERE.  HE THOUGHT THAT NONE OF
THESE WAS PRESENT, BUT SUGGESTED THAT PETITIONER BE GIVEN
SULFAPYRIDINE, A DRUG USED TO COMBAT EYE INFECTIONS; AND THIS ADVICE
WAS FOLLOWED.  ON ARRIVAL AT SAN FRANCISCO ON JUNE 10, THE PETITIONER
WAS TAKEN TO THE MARINE HOSPITAL BY AMBULANCE. 

ON THE EVENING OF JUNE 11, A CONSULTING EYE SPECIALIST WAS CALLED IN.
IN THE BELIEF THAT THERE WAS A FOREIGN BODY IN THE EYE HE RECOMMENDED
AN X-RAY, WHICH WAS MADE ON THE NEXT DAY.  THEREAFTER HE REPORTED THAT
THE ANTERIOR CHAMBER OF THE EYE WAS FILLED WITH DARK HEMORRHAGE
MATERIAL, AND THAT IN THAT CHAMBER THERE WAS "FIBRIN  ...  OR SCAR OF
PREVIOUS OPERATION, MOST LIKELY THE FORMER," WITH THE COMMENT THAT
"THIS IS A PECULIAR LOOKING EYE WHICH IS DIFFICULT TO FIT IN WITH THE
HISTORY OF IMPACT WITH PAINT SCALE OR POSSIBLE STEEL FRAGMENT.  THE
HEMORRHAGE SUGGESTS PERFORATION WITH INJURY TO IRIS OR CILIARY BODY. 
THERE IS SMALL LIKELIHOOD OF A CONTUSION CAUSING IT."  PETITIONER'S
INJURY WAS FINALLY DIAGNOSED ON JUNE 15 AS "HEMORRHAGE, ANTERIOR
CHAMBER, RIGHT EYE, TRAUMATIC."  THE EYE WAS REMOVED ON JULY 5.  IN THE
COURSE OF AFTERTREATMENT THERE WAS ENTERED IN THE HOSPITAL RECORDS, ON
SEPTEMBER 10, THE STATEMENT THAT:  "AT THIS TIME PATIENT CHANGES
HISTORY OF INJURY AND ALSO STATES HE HAD A MUSCLE OPERATION ON RIGHT
EYE IN 1937.  INJURY NOW ALLEGED TO CAUSE THE DISABILITY WAS A SCALE OF
PAINT IN THE EYE AND IT IS THE OPINION OF THE SURGEON IN CHARGE THAT
THIS WOULD GIVE AN INTRAOCULAR HEMORRHAGE SUCH AS WAS PRESENT IN THE
RIGHT EYE.  DIAGNOSIS CHANGED SEPTEMBER 10, 1940." 

DOCTOR FAED, CONNECTED WITH THE MARINE HOSPITAL IN SAN FRANCISCO, WHO
HAD REMOVED THE EYE, WAS CALLED AS PETITIONER'S WITNESS.  HE TESTIFIED
THAT WHETHER AN EYE INJURY CAN BE DIAGNOSED AS CONJUNCTIVITIS, AS THE
SHIP'S DOCTOR HAD DIAGNOSED IT, OR AS A HEMORRHAGE, AS WAS FINALLY THE
DIAGNOSIS AT THE MARINE HOSPITAL, DEPENDS UPON THE DOCTOR AND THE
FACILITIES AT HIS COMMAND.  HE WAS ASKED ON DIRECT EXAMINATION WHETHER
"IF SUCH TREATMENT AS WAS GIVEN IN THE MARINE HOSPITAL ON JUNE 10TH AND
FOLLOWING HAD BEEN AFFORDED MR. DE ZON ON JUNE 3RD, 4TH AND FOLLOWING,
...  THAT MIGHT HAVE SAVED HIS EYE," AND ANSWERED THAT "I AM UNABLE TO
GIVE AN OPINION ABOUT THAT."  THEN, IN RESPONSE TO A QUESTION WHETHER,
ON THE BASIS OF THE WHOLE HISTORY OF THE CASE, INCLUDING THAT DEVELOPED
AT THE MARINE HOSPITAL AT SAN FRANCISCO, IT WAS HIS OPINION THAT
PETITIONER "SHOULD HAVE BEEN HOSPITALIZED ON JUNE 3RD AND 4TH, WHEN
THIS TROUBLE TO THE EYE FIRST OCCURRED," HE ANSWERED THAT:  "I BELIEVE
HE SHOULD HAVE BEEN HOSPITALIZED; IT MIGHT HAVE HELPED SOME."  HE DID
NOT WISH, HOWEVER, TO "GO ON RECORD" AS SAYING THAT IT WOULD HAVE
AIDED, AND TESTIFIED FURTHER ON DIRECT EXAMINATION THAT, NOT BEING SURE
WHETHER TO HOSPITALIZE PETITIONER AT THE EARLIER DATE, HE "WOULD HAVE
GIVEN THE ADVANTAGE TO THE PATIENT."  ANOTHER AND APPARENTLY EQUALLY
WELL QUALIFIED EYE SPECIALIST, OFFERED AS RESPONDENT'S WITNESS,
TESTIFIED, AS DID THE SHIP'S DOCTOR, THAT THE SHIP'S DOCTOR HAD GIVEN
THE STANDARD TREATMENT FOR CONJUNCTIVITIS, AND THAT ADDITIONAL
TREATMENT SUCH AS WAS GIVEN THE PETITIONER AT SAN FRANCISCO WOULD HAVE
HAD NO BENEFICIAL EFFECT, AND MIGHT HAVE HAD HARMFUL EFFECTS, IF GIVEN
BEFORE THE PERIOD OF TIME WHICH ELAPSED ON THE VOYAGE TO SAN
FRANCISCO.  THIS SPECIALIST ALSO TESTIFIED, AND WITHOUT CONTRADICTION,
THAT IT WAS TOO MUCH TO EXPECT OF THE ORDINARY GENERAL PRACTITIONER,
SUCH AS THE SHIP'S DOCTOR WAS, TO BE ABLE TO DIAGNOSE PETITIONER'S CASE
AS A DANGEROUS ONE. 

THE TESTIMONY OF RESPONDENT IS UNCONTRADICTED THAT THE SHIP'S DOCTOR
WAS A DULY LICENSED PHYSICIAN IN CALIFORNIA, A GENERAL PRACTITIONER
WITH SOME SURGICAL EXPERIENCE, AND WAS SELECTED ONLY AFTER CAREFUL
INQUIRY HAD SATISFIED THE CHIEF SURGEON OF THE RESPONDENT THAT HE WAS A
COMPETENT MAN FOR THE POST.  IT IS CONCEDED THAT PROPER INVESTIGATION
WAS MADE, AND IT WAS LEARNED THAT HE WAS A MAN OF GOOD REPUTATION AND
CHARACTER. 

RESPONDENT'S CHIEF SURGEON ALSO TESTIFIED THAT AUTHORITY TO DECIDE
WHETHER A SEAMAN SHOULD BE TREATED, AND THE MANNER OF TREATMENT, WAS
VESTED IN THE MASTER, WHO HAD AUTHORITY TO DISREGARD ANY RECOMMENDATION
IN THIS REGARD THAT THE SHIP'S DOCTOR MIGHT MAKE.  SEE ALSO, R.S. SEC.
4596, 46 U.S.C. SEC. 701; R.S. SEC. 4612, 46 U.S.C. SEC. 713. 

THE CIRCUIT COURT OF APPEALS IN CONSIDERING THIS CASE HELD THAT THE
SHIPOWNER'S DUTY ENDED WITH THE EXERCISE OF REASONABLE CARE TO SECURE A
COMPETENT GENERAL PRACTITIONER, AND SINCE THERE COULD BE NO QUESTION
THAT SUCH CARE HAD BEEN EXERCISED, THE SHIPOWNER COULD NOT BE HELD
LIABLE IN DAMAGES FOR HARM THAT COULD HAVE FOLLOWED THE NEGLIGENCE OF
THE SHIP'S DOCTOR.  IN OUR OPINION THIS WAS ERROR. 

THE JONES ACT READS IN PERTINENT PART AS FOLLOWS:  "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; ...  " THUS IT MAKES
APPLICABLE TO SEAMEN INJURED IN THE COURSE OF THEIR EMPLOYMENT THE
PROVISIONS OF THE FEDERAL EMPLOYERS' LIABILITY ACT, 45 U.S.C. SECS. 51
60, WHICH GIVES TO RAILROAD EMPLOYEES A RIGHT OF RECOVERY FOR INJURIES
RESULTING FROM THE NEGLIGENCE OF THEIR EMPLOYER, ITS AGENTS OR
EMPLOYEES.  PANAMA R. CO. V. JOHNSON, 264 U.S. 375; THE ARIZONA V.
ANELICH, 298 U.S. 110; O'DONNELL V. GREAT LAKES DREDGE & DOCK CO.,
ANTE, P. 36. 

CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367, 377-378, EXPLAINED
THE EFFECT OF THE JONES ACT AS FOLLOWS:  "CONGRESS DID NOT MEAN THAT
THE STANDARDS OF LEGAL DUTY MUST BE THE SAME BY LAND AND SEA.  CONGRESS
MEANT NO MORE THAN THIS, THAT THE DUTY MUST BE LEGAL, I.E., IMPOSED BY
LAW; THAT IT SHALL HAVE BEEN IMPOSED FOR THE BENEFIT OF THE SEAMAN, AND
FOR THE PROMOTION OF HIS HEALTH OR SAFETY; AND THAT THE NEGLIGENT
OMISSION TO FULFILL IT SHALL HAVE RESULTED IN DAMAGE TO HIS PERSON. 
WHEN THIS CONCURRENCE OF DUTY, OF NEGLIGENCE AND OF PERSONAL INJURY IS
MADE OUT, THE SEAMAN'S REMEDY IS TO BE THE SAME AS IF A LIKE DUTY HAD
BEEN IMPOSED BY LAW UPON CARRIERS BY RAIL."  RECOVERY WAS ACCORDINGLY
ALLOWED UNDER THE JONES ACT FOR THE NEGLIGENCE OF THE MASTER IN THE
DISCHARGE OF THE ANCIENT DUTY TO PROVIDE MAINTENANCE AND CURE FOR A
SEAMAN WOUNDED IN THE SERVICE OF THE SHIP. 

WE ARE OF OPINION THAT THE REASONING OF THE CORTES CASE IS
CONTROLLING, AND THAT THERE IS NOTHING IN THIS CASE TO SHIELD THE
SHIPOWNER FROM LIABILITY FOR ANY NEGLIGENCE OF THE SHIP'S DOCTOR. 

IMMUNITY CANNOT BE RESTED UPON THE GROUND THAT THE MEDICAL SERVICE
WAS THE SEAMAN'S AND THE DOCTOR'S BUSINESS, AND THE TREATMENT NOT IN
PURSUANCE OF THE DOCTOR'S DUTY TO THE SHIP OR THE SHIP'S DUTY TO THE
SEAMAN.  FN2 

"THE DUTY TO PROVIDE PROPER MEDICAL TREATMENT AND ATTENDANCE FOR
SEAMEN FALLING ILL OR SUFFERING INJURY IN THE SERVICE OF THE SHIP HAS
BEEN IMPOSED UPON THE SHIPOWNERS BY ALL MARITIME NATIONS."  THE
IROQUOIS, 194 U.S. 240, 241-242.  WHEN THE SEAMAN BECOMES COMMITTED TO
THE SERVICE OF THE SHIP, THE MARITIME LAW ANNEXES A DUTY THAT NO
PRIVATE AGREEMENT IS COMPETENT TO ABROGATE, AND THE SHIP IS COMMITTED
TO THE MAINTENANCE AND CURE OF THE SEAMAN FOR ILLNESS OR INJURY DURING
THE PERIOD OF THE VOYAGE, AND IN SOME CASES FOR A PERIOD THEREAFTER. 
FN3  THIS DUTY DOES NOT DEPEND UPON FAULT.  IT IS NO MERELY FORMAL
OBLIGATION AND IT ADMITS OF NO MERELY PERFUNCTORY DISCHARGE.  ITS
MEASURE DEPENDS UPON THE CIRCUMSTANCES OF EACH CASE - THE SERIOUSNESS
OF THE INJURY OR ILLNESS AND THE AVAILABILITY OF AID.  ALTHOUGH THERE
MAY BE NO DUTY TO THE SEAMAN TO CARRY A PHYSICIAN, THE CIRCUMSTANCES
MAY BE SUCH AS TO REQUIRE REASONABLE MEASURES TO GET HIM TO ONE, AS BY
TURNING BACK, PUTTING IN TO THE NEAREST PORT ALTHOUGH NOT ONE OF CALL,
HAILING A PASSING SHIP, OR TAKING OTHER MEASURES OF CONSIDERABLE COST
IN TIME AND MONEY.  FAILURE TO FURNISH SUCH CARE, EVEN AT THE COST OF A
WEEK'S DELAY, HAS BEEN HELD BY THIS COURT TO BE A BASIS FOR DAMAGES. 
THE IROQUOIS, SUPRA. 

TO PROVIDE A SHIP'S PHYSICIAN WAS THEREFORE NO MERE ACT OF CHARITY. 
FN4  THE DOCTOR IN TREATING THE SEAMAN WAS ENGAGED IN THE SHIPOWNER'S
BUSINESS; IT WAS THE SHIP'S DUTY THAT HE WAS DISCHARGING IN TREATING
THE INJURED EYE.  WHILE, NO DOUBT, THE PHYSICIAN RECOGNIZED AT LEAST AN
ETHICAL OBLIGATION BETWEEN HIMSELF AND THE PATIENT, HE WAS PERFORMING
THE SERVICE BECAUSE THE SHIP EMPLOYED HIM TO DO SO, NOT BECAUSE THE
PETITIONER DID.  HE WAS NOT AN INDEPENDENT PRACTITIONER, CALLED TO
TREAT ONE WHOSE EXPENSES THE SHIP AGREED TO MAKE GOOD.  WE EXPRESS NO
VIEW AS TO THE LIABILITY FOR MALPRACTICE BY ONE NOT IN THE EMPLOY OF
THE SHIP.  FN5  BUT IN THIS CASE THE PHYSICIAN WAS NOT IN HIS OWN OR
THE SEAMAN'S CONTROL; HE WAS AN EMPLOYEE AND, AS SUCH, SUBJECT TO THE
SHIP DISCIPLINE AND THE MASTER'S ORDERS. 

WHATEVER, IN THE ABSENCE OF THE JONES ACT, MIGHT HAVE BEEN THE EFFECT
UPON RESPONDENT'S LIABILITY OF THE FACT THAT PETITIONER AND THE SHIP
DOCTOR WERE BOTH IN ITS EMPLOY, THAT ACT PREVENTS THIS FACT FROM
CONFERRING AN IMMUNITY UPON THE RESPONDENT.  JAMISON V. ENCARNACION,
281 U.S. 635; CORTES V. BALTIMORE INSULAR LINE, SUPRA.    WE HOLD,
THEREFORE, THAT THE SHIPOWNER WAS LIABLE IN DAMAGES FOR HARM SUFFERED
AS THE RESULT OF ANY NEGLIGENCE ON THE PART OF THE SHIP'S DOCTOR.  FN6 

WE COME, THEN, TO THE QUESTION AS TO WHETHER THERE WAS SUFFICIENT
PROOF OF NEGLIGENCE TO REQUIRE SENDING THIS CASE TO THE JURY. 

THE SHORT OF THE CASE IS THAT THE PETITIONER FAILED TO DISCLOSE THE
PAST HISTORY OF THE EYE TO THE SHIP'S DOCTOR, AND THE SHIP'S DOCTOR
DIAGNOSED THE CASE AS ONE OF CONJUNCTIVITIS AND GAVE THE PETITIONER
WHAT UNDISPUTED MEDICAL TESTIMONY SAYS TO BE THE STANDARD TREATMENT FOR
THAT CONDITION.  GOING ASHORE, THE CASE WAS DIAGNOSED SIMILARLY BY A
PHYSICIAN OF UNSTATED QUALIFICATIONS, WHO TREATED THE EYE IN THE SAME
MANNER AS THE SHIP'S DOCTOR.  RETURNING TO THE SHIP, THE PETITIONER
TOLD THE SHIP'S DOCTOR OF THE SHORE DOCTOR'S RECOMMENDATION THAT HE
LEAVE THE SHIP AND BE HOSPITALIZED ASHORE.  THE SHIP'S DOCTOR
ACKNOWLEDGES THAT HE WOULD HAVE HEEDED SUCH A RECOMMENDATION HAD IT
BEEN MADE, BUT ASSERTS THAT IT WAS NOT MADE.  FOR PURPOSES OF TESTING
THE CORRECTNESS OF THE DIRECTION OF THE VERDICT, WE MUST ASSUME THAT
THE SHIP'S DOCTOR WAS TOLD OF IT.  THE CONCESSION OF THE SHIP'S DOCTOR
THAT HE WOULD HAVE HEEDED SUCH A RECOMMENDATION IS NOT OF ITSELF
EVIDENCE OF NEGLIGENCE.  THERE IS NOT A WORD OF EVIDENCE THAT THE SHORE
DOCTOR WAS ANY BETTER QUALIFIED TO DIAGNOSE THE EYE THAN WAS THE SHIP'S
DOCTOR, AND AS A MATTER OF FACT HIS DIAGNOSIS OF THE CASE WAS THE SAME
AS THE SHIP'S DOCTOR'S.  THAT THEIR PROGNOSES WERE DIFFERENT DOES NOT
ESTABLISH EITHER THAT THE ONE WAS OVERLY CAUTIOUS OR THAT THE OTHER WAS
NEGLIGENT IN FAILING TO TAKE THE SAME ATTITUDE AS TO THE NECESSITY OF
HOSPITALIZATION ASHORE.  OUR OWN EXPERIENCE VIVIDLY DEMONSTRATES THAT
CAREFUL AND COMPETENT MEN FREQUENTLY REACH DIFFERENT CONCLUSIONS
DESPITE THE FULLEST AND MOST CAREFUL EXAMINATION OF ALL AVAILABLE DATA,
INCLUDING THE DIFFERENCE OF OPINION ON THE PART OF THEIR ASSOCIATES. 
IN THE PRESENT CASE, NEITHER DOCTOR HAD THE BENEFIT OF ALL THE FACTS OF
THE EYE'S HISTORY.  THE CHARACTER OF THE PETITIONER'S AFFLICTION WAS
NOT ASCERTAINED UNTIL DAYS AFTER THE PETITIONER REACHED SAN FRANCISCO,
AND THEN ONLY AFTER AN OUTSIDE CONSULTANT WAS CALLED IN TO ADVISE THE
EYE SPECIALISTS IN THE MARINE HOSPITAL.  TRUE IT IS THAT ONE DOCTOR
SAID, PARTLY ON THE BASIS OF THE FACTS DISCLOSED LONG AFTER
PETITIONER'S EYE HAD BEEN REMOVED, THAT HE WOULD HAVE RECOMMENDED
HOSPITALIZATION AT HONOLULU, AND THAT ADDITIONAL TREATMENT AT THE TIME
PETITIONER WAS EN ROUTE TO SAN FRANCISCO MIGHT HAVE HAD A BENEFICIAL
EFFECT; BUT EVEN ON THE BASIS OF THE KNOWLEDGE AVAILABLE AT THE TRIAL
HE WOULD NOT VENTURE AN OPINION THAT TREATMENT SUCH AS WAS GIVEN AT SAN
FRANCISCO WOULD HAVE SAVED PETITIONER'S EYE IF GIVEN BEFORE OR AT THE
TIME HE REACHED HONOLULU.  ANOTHER, AND APPARENTLY EQUALLY WELL
QUALIFIED, EYE SPECIALIST TESTIFIED THAT NOTHING IN ADDITION TO THE
STANDARD COURSE OF TREATMENT FOR CONJUNCTIVITIS, WHICH THE SHIP'S
DOCTOR GAVE, COULD HAVE BEEN DONE WITH SAFETY UNTIL AFTER THE
PETITIONER'S ARRIVAL IN SAN FRANCISCO, AND THAT ANY ATTEMPT TO DO MORE
PROBABLY WOULD HAVE ACTUALLY IMPAIRED PETITIONER'S CHANCES OF SAVING
HIS EYE.  HE TESTIFIED, AND WITHOUT CONTRADICTION, THAT IT WAS TOO MUCH
TO EXPECT OF THE ORDINARY GENERAL PRACTITIONER, SUCH AS THE SHIP'S
DOCTOR WAS, TO BE ABLE TO DIAGNOSE PETITIONER'S CASE AS A DANGEROUS
ONE. 

IN THESE CIRCUMSTANCES, IT IS SAID THAT THE SHIP'S DOCTOR SHOULD HAVE
SENT THE PETITIONER ASHORE, DESPITE THE PETITIONER'S DESIRE TO RETURN
TO SAN FRANCISCO WITH THE BOAT; AND ALTHOUGH THERE IS NO EVIDENCE WHAT
THE FACILITIES WERE AT HONOLULU.  HAD HE PUT PETITIONER ASHORE ONLY TO
HAVE HIM LOSE HIS EYE, IT IS CONCEIVABLE THAT HE WOULD HAVE BEEN
CHARGED WITH NEGLECT IN DOING THAT. 

IF THERE WAS MALPRACTICE IN THIS CASE, NO EVIDENCE OF IT HAS BEEN PUT
INTO THIS RECORD.  THE SURGEON WHO REMOVED THE EYE WAS CALLED AS A
WITNESS.  HE TESTIFIED THAT THE CAUSE OF THE TROUBLE WAS A HEMORRHAGE. 
BUT NO PROFESSIONAL OPINION WAS OFFERED AS TO WHEN THE HEMORRHAGE TOOK
PLACE.  WE DO NOT KNOW WHETHER THE SHIP'S SURGEON IS ACCUSED OF
MALPRACTICE FOR FAILURE TO CURE A HEMORRHAGE WHICH HAD ALREADY OCCURRED
WHEN HE WAS FIRST CONSULTED OR BECAUSE OF FAILURE TO ANTICIPATE IT AND
PREVENT IT.  MOREOVER, THERE IS NO PROOF WHATEVER THAT, IF A HEMORRHAGE
WITHIN THE EYE ONCE OCCURRED TO AN EXTENT NOT ABSORBED BY THE ORDINARY
NATURAL PROCESSES, IT IS CURABLE AT ALL.  IF THIS PETITIONER WAS
DESTINED TO LOSE HIS EYE AT ALL ODDS, HE HARDLY ESTABLISHES A CAUSE OF
ACTION BY SAYING IT SHOULD HAVE OCCURRED AT HONOLULU INSTEAD OF SAN
FRANCISCO.  HOSPITALIZATION EITHER ON SHIP OR ON LAND IS NOT IN ITSELF
A CURE.  AT SAN FRANCISCO, SPECIALISTS HAD NO CURE FOR THE EYE BUT TO
REMOVE IT, AND WE ARE NOT TOLD THAT ANYTHING DIFFERENT COULD HAVE BEEN
DONE AT ANY EARLIER STAGE WITH ANY PROBABILITY THAT IT WOULD BRING
ABOUT A DIFFERENT RESULT. 

THE DOCTOR APPARENTLY MADE A WRONG DIAGNOSIS, BUT THAT DOES NOT PROVE
THAT IT WAS A NEGLIGENT ONE.  IT SEEMED TO BE THE OBVIOUS DIAGNOSIS
FROM THE HISTORY WHICH THE PATIENT GAVE HIM, AND THAT APPEARS TO HAVE
BEEN INCOMPLETE AND NOT UNLIKELY TO MISLEAD. 

THE LOSS OF THE PETITIONER'S EYE IS A SERIOUS HANDICAP.  BUT DAMAGES
MAY BE RECOVERED UNDER THE JONES ACT ONLY FOR NEGLIGENCE.  JAMISON V.
ENCARNACION, SUPRA, AT 639.  WHETHER THE LEGISLATIVE POLICY OF
COMPENSATING ONLY ON THE BASIS OF PROVEN FAULT IS WISE IS NOT FOR US TO
SAY, NOR IS IT OUR FUNCTION TO CIRCUMVENT IT BY READING INTO THE LAW A
THEORY, HOWEVER DISGUISED, THAT A PHYSICIAN WHO UNDERTAKES CARE
GUARANTEES CURE, AND THAT EACH UNSUCCESSFUL EFFORT OF THE PHYSICIAN MAY
BE VISITED WITH A SUCCESSFUL MALPRACTICE SUIT.  AFFIRMED. 

FN1  41 STAT. 1007, 46 U.S.C. SEC. 688. 

FN2  LIABILITY TO A PASSENGER INJURED BY THE NEGLIGENCE OF A SHIP'S
DOCTOR HAS BEEN DENIED ON THIS GROUND.  ONE OF THE LEADING CASES ON
LIABILITY TO PASSENGERS IS LAUBHEIM V. DEK.  N.S. CO., 107 N.Y. 228, 13
N.E. 781.  IT AROSE BEFORE, BUT WAS DECIDED AFTER, THE ENACTMENT OF THE
ACT OF CONGRESS OF AUGUST 2, 1882, 22 STAT. 186, 188, 46 U.S.C. SEC.
155, IMPOSING UPON SHIPS CARRYING CERTAIN TYPES OF PASSENGERS THE
OBLIGATION OF PROVIDING A "COMPETENT" DOCTOR FOR THE BENEFIT OF THE
PASSENGERS.  THE PLAINTIFF, A PASSENGER, SUED THE SHIPOWNER FOR
PERSONAL INJURIES RESULTING FROM ALLEGED NEGLIGENCE OF THE SHIP'S
SURGEON.  JUDGE FRANCIS M. FINCH DISPOSED OF THE CASE IN A SHORT
OPINION, IN THE APPARENT BELIEF THAT THE RULE APPLIED WAS NOT
SUFFICIENTLY IN QUESTION TO WARRANT DISCUSSION.  HE SAID:  "IF, BY LAW
OR BY CHOICE, THE DEFENDANT WAS BOUND TO PROVIDE A SURGEON FOR ITS
SHIPS, ITS DUTY TO THE PASSENGERS WAS TO SELECT A REASONABLY COMPETENT
MAN FOR THAT OFFICE, AND IT IS LIABLE ONLY FOR A NEGLECT OF THAT DUTY. 
(CHAPMAN V. ERIE R. CO., 55 N.Y. 579; MCDONALD V. HOSPITAL, 120 MASS.
432; SECORD V. ST. PAUL R.R. CO., 18 FED. REP. 221.)  IT IS RESPONSIBLE
SOLELY FOR ITS OWN NEGLIGENCE AND NOT FOR THAT OF THE SURGEON
EMPLOYED."  THE CHAPMAN CASE TESTED LIABILITY OF A RAILROAD BY THE
"FELLOW SERVANT" DOCTRINE, WHICH HAS BEEN ABOLISHED BY THE FEDERAL
EMPLOYERS' LIABILITY ACT AND CAN THEREFORE HAVE NO APPLICATION IN THIS
CASE.  JAMISON V. ENCARNACION, 281 U.S. 635.  THE SECORD CASE GIVES
ONLY A CHARGE TO A JURY IN A CASE WHERE THE ISSUE WAS LIABILITY OF A
RAILROAD TO A PASSENGER FOR NEGLIGENT TREATMENT BY A PHYSICIAN IN ITS
EMPLOY.  THE MCDONALD CASE HELD A HOSPITAL IMMUNE FROM LIABILITY FOR
NEGLIGENCE OF ITS HOUSE SURGEON, ON THE GROUND THAT IT WAS A CHARITABLE
INSTITUTION. 

O'BRIEN V. CUNARD STEAMSHIP CO., 154 MASS. 272, 28 N.E. 266, AROSE
UNDER THE ACT OF AUGUST 2, 1882, AND WAS DECIDED AFTER THE LAUBHEIM
CASE, UPON WHICH IT RELIED.  JUDGE KNOWLTON OF THE MASSACHUSETTS
SUPREME JUDICIAL COURT SAID:  "UNDER THIS STATUTE IT IS THE DUTY OF
SHIP-OWNERS TO PROVIDE A COMPETENT SURGEON, WHOM THE PASSENGERS MAY
EMPLOY IF THEY CHOOSE, IN THE BUSINESS OF HEALING THEIR WOUNDS AND
CURING THEIR DISEASES.  THE LAW DOES NOT PUT THE BUSINESS OF TREATING
SICK PASSENGERS INTO THE CHARGE OF COMMON CARRIERS, AND MAKE THEM
RESPONSIBLE FOR THE PROPER MANAGEMENT OF IT.  THE WORK WHICH THE
PHYSICIAN OR SURGEON DOES IN SUCH CASES IS UNDER THE CONTROL OF THE
PASSENGERS THEMSELVES.  IT IS THEIR BUSINESS, NOT THE BUSINESS OF THE
CARRIER.  ...  THE MASTER OR OWNERS OF THE SHIP CANNOT INTERFERE IN THE
TREATMENT OF THE MEDICAL OFFICER WHEN HE ATTENDS A PASSENGER.  HE IS
NOT THEIR SERVANT, ENGAGED IN THEIR BUSINESS AND SUBJECT TO THEIR
CONTROL AS TO HIS MODE OF TREATMENT.  THEY DO THEIR WHOLE DUTY IF THEY
EMPLOY A DULY QUALIFIED AND COMPETENT SURGEON AND MEDICAL PRACTITIONER,
AND SUPPLY HIM WITH ALL NECESSARY AND PROPER INSTRUMENTS, MEDICINES,
AND MEDICAL COMFORTS, AND HAVE HIM IN READINESS FOR SUCH PASSENGERS AS
CHOOSE TO EMPLOY HIM.  THIS IS THE WHOLE REQUIREMENT OF THE STATUTE OF
THE UNITED STATES APPLICABLE TO SUCH CASES.  ...  "  ID. AT 275-276. 

THESE STATEMENTS OF JUDGES OF GREAT LEARNING, FOR COURTS OF LAST
RESORT OF STATES HAVING MUCH TO DO WITH MARITIME PURSUITS, HAD THEIR
INFLUENCE UPON THE FEDERAL COURTS DEALING WITH THE SAME PROBLEM.  THE
GREAT NORTHERN, 251 F. 826; THE KOREA MARU, 254 F. 397, 399; BRANCH V.
COMPAGNIE GENERALE TRANSATLANTIQUE, 11 F.SUPP.  832; CF. THE NAPOLITAN
PRINCE, 134 F. 159. 

FN3  THE DUTY IS NOT TO "CURE" IN A LITERAL SENSE, BUT TO PROVIDE
CARE, INCLUDING NURSING AND MEDICAL ATTENTION.  CALMAR S.S. CORP. V.
TAYLOR, 303 U.S. 525, 528.  IT HAS NOT BEEN RESTRICTED BY THE
SHIPOWNERS' LIABILITY CONVENTION OF 1936, 54 STAT. 1693, WHICH PROVIDES
IN ARTICLE 12 THAT "NOTHING IN THIS CONVENTION SHALL AFFECT ANY LAW,
AWARD, CUSTOM OR AGREEMENT BETWEEN SHIPOWNERS AND SEAMEN WHICH ENSURES
MORE FAVOURABLE CONDITIONS THAN THOSE PROVIDED BY THIS CONVENTION." 

FN4  WE EXPRESS NO OPINION UPON WHETHER CHARITABLE OR GRATUITOUS
NATURE OF MEDICAL ATTENTION SHOULD HAVE EXCULPATORY EFFECT.  CF.
PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE V. HUGHES, 130 F.2D 810. 

FN5  CF. THE SARNIA, 147 F. 106; THE C.S. HOLMES, 209 F. 970; BONAM
V. SOUTHERN MENHADEN CORP., 284 F. 360(INVOLVING PHYSICIANS OTHER THAN
SHIP'S DOCTORS). 

FN6  JOHNSON V. AMERICAN MAIL LINE, 1937 A.M.C. 1267(SUPERIOR COURT
FOR KING COUNTY, WASHINGTON), REACHED THE OPPOSITE CONCLUSION, RELYING
UPON CASES CITED IN FOOTNOTES 2 AND 5, SUPRA, WHICH WE THINK ARE
INAPPOSITE, FOR THE REASONS ALREADY STATED.  GEISTLINGER V.
INTERNATIONAL MERCANTILE MARINE CO., 295 F. 176, ALSO DENIED LIABILITY
FOR THE SHIP'S DOCTOR'S NEGLIGENT TREATMENT OF A SEAMAN, BUT IT DID NOT
FIND THE JONES ACT APPLICABLE, AND DID NOT CONSIDER WHAT ITS EFFECT
MIGHT BE IF IT SHOULD BE FOUND APPLICABLE.  LEONE V. BOOTH S.S. CO.,
232 N.Y. 183, 133 N.E. 439, ALSO DENIED LIABILITY, BUT IT WAS DECIDED
ON FACTS ANTEDATING THE JONES ACT, AND IT TOO DID NOT CONSIDER THE
EFFECT OF THE ACT. 

MR. JUSTICE RUTLEDGE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING: 

THE ISSUE IN THIS CASE IS:  SHALL A JURY OR A COURT DECIDE WHETHER
PETITIONER LOST HIS EYE THROUGH THE RESPONDENT'S NEGLIGENCE?  I AGREE
WITH THE COURT THAT THE SHIPOWNER WAS LIABLE FOR THE NEGLIGENCE OF ITS
DOCTOR, AND I AGREE FURTHER THAT THE JONES ACT IS NOT A WORKMEN'S
COMPENSATION ACT AND DOES NOT IMPOSE LIABILITY WITHOUT FAULT; BUT I DO
NOT AGREE THAT A COURT MAY SUBSTITUTE ITS JUDGMENT ON THE FACTS FOR THE
DECISION OF A JURY WHEN, AS HERE, THERE IS ROOM FOR REASONABLE
DIFFERENCE OF OPINION ON THE CRITICAL ISSUE OF THE CASE.  I THINK THERE
WAS SUFFICIENT EVIDENCE TO PERMIT A JURY TO FIND NEGLIGENCE IN THE
DOCTOR'S FAILURE TO LEAVE THE PETITIONER AT HONOLULU FOR HOSPITAL
TREATMENT. 

THE EVIDENCE SHOWED THAT THIS SEAMAN SUSTAINED AN INJURY SO SERIOUS
THAT IT RESULTED IN THE EVENTUAL REMOVAL OF HIS EYE.  WHEN A SEAMAN IS
INJURED, THE SHIPOWNER HAS AN IMPERATIVE OBLIGATION TO COME TO HIS AID;
FN1  AND THE SHIPOWNER'S RESPONSIBILITY IS SO HEAVY THAT HE MAY BE
FOUND NEGLIGENT FOR FAILURE TO TAKE HIS SHIP TO THE NEAREST PORT IN
ORDER TO PROVIDE ADEQUATE TREATMENT.  FN2  THERE IS A SIMILAR
OBLIGATION TO LEAVE A SERIOUSLY INJURED SEAMAN IN A PORT AT WHICH A
VESSEL HAS ARRIVED.  FN3  THIS DUTY OF COURSE EXISTS WHERE NO ADEQUATE
TREATMENT CAN BE GIVEN ON THE SHIP.  HERE THE SHIP'S DOCTOR WAS NOT AN
EYE SPECIALIST; THE SHIP DID NOT HAVE ABOARD THE MEDICINES WHICH
COMPETENT PHYSICIANS IN SAN FRANCISCO APPLIED; AND THERE WAS NO X-RAY
ALTHOUGH ONE WAS LATER FOUND ESSENTIAL FOR DIAGNOSING THE AILMENT.  IT
IS NOT SURPRISING THAT THE SHIP SHOULD LACK THESE FACILITIES, FOR EVERY
MERCHANT VESSEL CANNOT BE A FLOATING HOSPITAL; BUT IT IS FOR THIS VERY
REASON THAT A SHIP IS REQUIRED TO FURNISH SHORE TREATMENT FOR SERIOUSLY
INJURED SEAMEN. 

THE UNITED STATES MARINE HOSPITAL IN HONOLULU HAD ALL THE FACILITIES
WHICH THE SHIP LACKED.  THESE HOSPITALS ARE RECOGNIZED GOVERNMENT
INSTITUTIONS AND A SEAMAN HAS NO BURDEN TO PROVE THAT THE EQUIPMENT AND
TREATMENT IN THE HOSPITAL WOULD HAVE BEEN BETTER THAN THE EQUIPMENT AND
TREATMENT ON THE SHIP.  HERE, AS IN LEONE V. BOOTH STEAMSHIP CO., 232
N.Y. 183, 185, 133 N.E. 439, "IT IS TO PREFER SHADOW TO SUBSTANCE TO
MAKE THE RESULT OF THIS ACTION DEPEND ON AFFIRMATIVE PROOF OF THIS
MATTER." 

WHAT WAS THE EVIDENCE ON WHICH THE JURY COULD HAVE FOUND THAT THE
SEAMAN SHOULD HAVE BEEN LEFT FOR TREATMENT IN THIS HOSPITAL?  THE
PETITIONER'S EYE BEGAN TO PAIN HIM AS A RESULT OF AN ACCIDENT ON JUNE
3, 1940.  BY 7 O'CLOCK THE NEXT MORNING, THE EYE WAS IN SUCH CONDITION
THAT HE REQUIRED MEDICAL TREATMENT FROM THE SHIP'S DOCTOR AND WAS
RELEASED FROM DUTY.  AT 5 O'CLOCK THAT AFTERNOON THE VESSEL DOCKED AT
HONOLULU.  THE SHIP'S DOCTOR SENT HIM TO THE MARINE HOSPITAL, WHICH WAS
CLOSED AT THAT HOUR, AND HE WENT TO QUEENS HOSPITAL WHICH, ACCORDING TO
THE EVIDENCE, IS AN EMERGENCY INSTITUTION CONNECTED WITH THE MARINE
HOSPITAL AND WHICH TAKES CARE OF PATIENTS TEMPORARILY.  THE DOCTOR AT
QUEENS HOSPITAL ADVISED THE PETITIONER THAT HE SHOULD BE RELEASED FROM
HIS VESSEL AND ENTER THE HOSPITAL AT ONCE.  THIS PHYSICIAN ADVISED THE
SEAMAN THAT HE MIGHT LOSE HIS EYE IF HE RETURNED TO THE SHIP.    THE
PETITIONER RETURNED TO HIS VESSEL AT 6 P.M. BUT WAS UNABLE TO SEE THE
SHIP'S DOCTOR UNTIL 11:30, APPROXIMATELY 30 MINUTES BEFORE THE VESSEL
SAILED.  HE REPEATED TO THE SHIP'S DOCTOR THE ADVICE GIVEN HIM ASHORE. 
THE SEAMAN TESTIFIED THAT THE DOCTOR TOLD HIM THAT NO DANGER WOULD
RESULT FROM RETURNING TO SAN FRANCISCO, AND, SINCE THE DOCTOR WAS HIS
SUPERIOR OFFICER AND AN "ACCREDITED PHYSICIAN," HE RELIED UPON THE
DOCTOR'S ADVICE ALTHOUGH HE WAS SUFFERING INTENSELY. 

THE PETITIONER'S EYE GREW WORSE, TREATMENT IN THE SAN FRANCISCO
HOSPITAL FAILED TO CURE IT, AND IT WAS REMOVED.  TWO SAN FRANCISCO
SPECIALISTS FAMILIAR WITH HIS CASE TESTIFIED THAT THEY WOULD HAVE
ADVISED THAT HE BE LEFT IN HONOLULU FOR HOSPITAL TREATMENT.  TRUE, WE
HAVE NO TESTIMONY THAT THE EYE WOULD HAVE BEEN SAVED BY HOSPITALIZATION
AT HONOLULU, AND WHETHER IT COULD HAVE BEEN WILL NEVER BE KNOWN; BUT IT
IS CLEAR THAT THE PETITIONER WOULD HAVE RECEIVED EXCELLENT TREATMENT AT
AN EARLIER DATE THAN HE DID.  ADEQUATE TREATMENT, OF COURSE, IS USUALLY
AIMED AT CURING OR ALLEVIATING THE SERIOUS CONSEQUENCES OF INJURIES AND
DISEASES, AND TIMELY TREATMENT CAN PREVENT PROGRESSIVE PHYSICAL
DETERIORATION.  SOMEONE MUST DECIDE WHETHER SUCH HAPPY RESULTS WOULD
HAVE FOLLOWED EARLIER HOSPITALIZATION IN THE INSTANT CASE. 

DIRECTING A VERDICT AGAINST THE PETITIONER IN THIS CASE IS
SUBSTITUTING JUDICIAL FOR JURY JUDGMENT ON FACTUAL QUESTIONS WHICH CAN
AS READILY BE DECIDED BY THE LAYMAN AS BY THE LAWYER.  WHEN WE CONSIDER
THE WEIGHT OF THE EVIDENCE AND RESOLVE DOUBTFUL QUESTIONS SUCH AS
THESE, WE INVADE THE HISTORIC JURY FUNCTION.  "THE RIGHT OF JURY TRIAL
IN CIVIL CASES AT COMMON LAW IS A BASIC AND FUNDAMENTAL FEATURE OF OUR
SYSTEM OF FEDERAL JURISPRUDENCE WHICH IS PROTECTED BY THE SEVENTH
AMENDMENT."  JACOB V. NEW YORK CITY, 315 U.S. 752.  THIS CONSTITUTIONAL
COMMAND SHOULD NOT BE CIRCUMVENTED. 

FN1  HARDEN V. GORDON, 2 MASON 541; REED V. CANFIELD, 1 SUMNER 195. 

FN2  THE IROQUOIS, 194 U.S. 240, 242. 

FN3  THE UNITED STATES GUARANTEES THE COST OF MAINTENANCE AND RETURN
TO THE UNITED STATES OF INJURED SEAMEN DISCHARGED IN FOREIGN PORTS.  46
U.S.C. SEC. 683. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :




UNITED STATES V. SWIFT & CO., 318 U.S. 442 


NO. 529.  ARGUED FEBRUARY 11, 12, 1943.  - DECIDED MARCH 15, 1943.  -
REMANDED TO THE C.C.A. 


1.  THE DECISION OF THE DISTRICT COURT IN THIS CASE, SETTING ASIDE AN
INDICTMENT FOR VIOLATION OF THE SHERMAN ACT, RESTS NOT ALONE UPON A
CONSTRUCTION OF THE STATUTE BUT ALSO UPON THE INDEPENDENT GROUND OF THE
INSUFFICIENCY OF THE INDICTMENT AS A PLEADING, AND IT IS THEREFORE NOT
APPEALABLE DIRECTLY TO THIS COURT UNDER THE CRIMINAL APPEALS ACT.  P.
444. 

2.  PURSUANT TO THE ACT OF MAY 9, 1942, THE CAUSE IS REMANDED TO THE
CIRCUIT COURT OF APPEALS, WHICH THEREUPON WILL HAVE AUTHORITY TO PASS
UPON THE CONSTRUCTION OF BOTH THE INDICTMENT AND THE STATUTE.  P. 445. 

UNITED STATES V. SWIFT & CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLORADO. 

APPEAL FROM A JUDGMENT, 46 F.SUPP.  848, DISMISSING AN INDICTMENT FOR
VIOLATION OF THE SHERMAN ACT. 

PER CURIAM. 

THIS IS A DIRECT APPEAL UNDER THE CRIMINAL APPEALS ACT, 18 U.S.C.
SEC. 682, AS AMENDED BY THE ACT OF MAY 9, 1942, 56 STAT. 271, FROM A
JUDGMENT OF THE DISTRICT COURT SETTING ASIDE AN INDICTMENT UNDER THE
SHERMAN ACT.  BY THE STATUTE OUR JURISDICTION IS RESTRICTED TO REVIEW
OF A DECISION OR JUDGMENT BASED UPON THE INVALIDITY OR CONSTRUCTION OF
THE STATUTE ON WHICH THE INDICTMENT IS FOUNDED.  INCLUDED AMONG THE
DEFENDANTS ARE THE COMMISSION FIRMS WHICH RECEIVE AND SELL FAT LAMBS ON
THE DENVER LIVESTOCK EXCHANGE, AND THREE PACKING COMPANIES WHICH
PURCHASE FAT LAMBS ON THE DENVER MARKET FOR SHIPMENT INTERSTATE TO
THEIR MANUFACTURING PLANTS. 

THE INDICTMENT CHARGES THAT THE DEFENDANTS AGREED AMONG THEMSELVES TO
PURCHASE LAMBS ONLY ON THE EXCHANGE, AND TO ABANDON THE PREVIOUSLY
PREVAILING PRACTICE OF MAKING DIRECT PURCHASES FROM PRODUCERS IN THE
COUNTRY, FOR INTERSTATE SHIPMENT, "THEREBY RESTRAINING THE CHANNELS OF
DISTRIBUTION WITHIN THE DENVER MARKETING AREA THROUGH WHICH SAID FAT
LAMBS FOR EASTBOUND SHIPMENT MOVE, AND  ...  RESTRAINING THE INTERSTATE
TRADE AND COMMERCE DESCRIBED IN THIS INDICTMENT, IN VIOLATION OF SEC. 1
OF THE SHERMAN ACT."  IT ALSO ALLEGES THAT THE AGREEMENT OR CONSPIRACY
AMONG THE DEFENDANTS IS "IN RESTRAINT OF THE HEREINBEFORE DESCRIBED
TRADE AND COMMERCE IN FAT LAMBS AMONG THE SEVERAL STATES OF THE UNITED
STATES AND IN VIOLATION OF SEC. 1" OF THE SHERMAN ACT. 

THE DISTRICT COURT DISMISSED THE INDICTMENT ON THE GROUND THAT THE
ALLEGED AGREEMENT AND PRACTICES UNDER IT ARE NOT IN ANY WAY SHOWN TO
HAVE AFFECTED THE PRICE OF LAMBS OR THE AMOUNT OF LAMBS RAISED OR
PRODUCED, OR TO HAVE LESSENED THEIR FLOW IN INTERSTATE COMMERCE.  WHILE
ITS DECISION WAS RESTED IN PART UPON THE CONSTRUCTION OF THE SHERMAN
ACT, THE COURT ALSO RELIED ON THE INSUFFICIENCY OF THE PLEADING, IN
THAT IT FAILED TO ALLEGE ANY INJURY TO OR EFFECT UPON INTERSTATE
COMMERCE RESULTING FROM THE ALLEGED AGREEMENT OR CONSPIRACY.  IT SAID:
"THE INDICTMENT IS DEFECTIVE IN THAT IT DOES NOT GO FAR ENOUGH IN ITS
CHARGES TO BRING THE AGREEMENT WITHIN ANY OF THE RECOGNIZED CANONS OF
CONSTRUCTION OF THE SHERMAN ANTI-TRUST ACT, BECAUSE, AS STATED BEFORE,
THERE IS NO ALLEGATION THAT THE DEFENDANTS INTENDED TO OR IN ANY WAY
HARMED ANYONE OR AFFECTED THE PRICE OF FAT LAMBS, THE AMOUNT OF THEM
THAT COULD BE SOLD, OR THE PLACES WHERE THEY COULD BE SOLD"; AND AGAIN,
"THE GOVERNMENT HAS GONE BEYOND THE EXTENT AND MEANING OF THAT LAW AS
INTERPRETED BY THE SUPREME COURT, FOR, AS STATED, THERE IS NO
ALLEGATION THAT ANYONE HAS BEEN INJURED OR THE FLOW OF INTERSTATE
COMMERCE IN ANY WAY AFFECTED."  46 F.SUPP.  848, 852. 

FROM THIS WE MUST TAKE IT THAT THE COURT FOUND THAT THE GENERAL
ALLEGATIONS WITH RESPECT TO THE EFFECT OF THE ALLEGED AGREEMENT ON
COMMERCE WERE NOT SUFFICIENTLY SPECIFIC.  IT THUS PLACED ITS DECISION,
IN PART AT LEAST, ON THE INADEQUACY OF THE ALLEGATIONS OF THE
INDICTMENT, WHICH WE HAVE QUOTED, TO CHARGE THAT THE CONSPIRACY OR
AGREEMENT AFFECTED COMMERCE WITHIN THE MEANING OF THE SHERMAN ACT. 
THESE WE THINK WERE RULINGS UPON THE SUFFICIENCY OF THE INDICTMENT AS A
MATTER OF PLEADING, THE CORRECTNESS OF WHICH CANNOT UNDER THE STATUTE
BE REVIEWED HERE ON DIRECT APPEAL FROM THE DISTRICT COURT.  AND SUCH AN
APPEAL TO THIS COURT DOES NOT LIE WHEN THE DISTRICT COURT HAS
CONSIDERED THE CONSTRUCTION OF THE STATUTE BUT HAS ALSO RESTED ITS
DECISION UPON THE INDEPENDENT GROUND OF A DEFECT IN THE PLEADING. 
UNITED STATES V. HASTINGS, 296 U.S. 188; UNITED STATES V. HALSEY,
STUART & CO., 296 U.S. 451; UNITED STATES V. BORDEN CO., 308 U.S. 188,
193; UNITED STATES V. WAYNE PUMP CO., 317 U.S. 200, AND CASES CITED. 

THIS PRACTICE WAS RECOGNIZED AND CONFIRMED BY THE ADOPTION OF THE
AMENDMENT OF MAY 9, 1942 TO THE CRIMINAL APPEALS ACT.  THE AMENDMENT
AUTHORIZED THE GOVERNMENT TO APPEAL TO THE CIRCUIT COURT OF APPEALS
FROM A DECISION OF THE DISTRICT COURT SUSTAINING A DEMURRER TO THE
INDICTMENT IN ANY CASE "EXCEPT WHERE A DIRECT APPEAL TO THE SUPREME
COURT OF THE UNITED STATES IS PROVIDED BY THIS ACT," AND PROVIDED THAT
WHERE AN APPEAL IS TAKEN TO THE SUPREME COURT "WHICH, IN THE OPINION OF
THAT COURT, SHOULD HAVE BEEN TAKEN TO A CIRCUIT COURT OF APPEALS,  ...
THE SUPREME COURT  ... SHALL REMAND THE CAUSE TO THE CIRCUIT COURT OF
APPEALS  ...  , WHICH SHALL THEN HAVE JURISDICTION TO HEAR AND
DETERMINE THE SAME AS IF THE APPEAL HAD BEEN TAKEN TO THAT COURT IN THE
FIRST INSTANCE ...  "  IN URGING THE PASSAGE OF THIS LEGISLATION THE
ATTORNEY GENERAL, IN HIS LETTER TO THE SPEAKER OF THE HOUSE OF JANUARY
10, 1941, POINTED OUT THAT "IT NOT INFREQUENTLY HAPPENS THAT A DEMURRER
TO AN INDICTMENT IS SUSTAINED OR A MOTION IN ARREST OF JUDGMENT IS
ALLOWED ON GROUNDS OTHER THAN THE INVALIDITY OR CONSTRUCTION OF THE
STATUTE UPON WHICH THE PROSECUTION IS BASED.  (UNITED STATES V.
HASTINGS, 296 U.S. 188; UNITED STATES V. HALSEY, STUART & CO., 296 U.S.
451.)"  HE ACCORDINGLY RECOMMENDED THE PROPOSED AMENDMENT AS THE
APPROPRIATE MEANS OF SECURING APPELLATE REVIEW IN CASES LIKE THOSE
CITED - CASES WHICH HAD LAID DOWN THE PRINCIPLE THAT A DIRECT APPEAL TO
THIS COURT IS NOT AUTHORIZED WHEN THE DECISION OF THE DISTRICT COURT
RESTS IN PART ON GROUNDS INDEPENDENT OF THE INVALIDITY OR CONSTRUCTION
OF THE STATUTE ON WHICH THE INDICTMENT IS FOUNDED.  H.R. REP. NO. 45,
77TH CONG., 1ST SESS., P. 2; S. REP. NO. 868, 77TH CONG., 1ST SESS., P.
2. 

AS WE ARE WITHOUT JURISDICTION TO ENTERTAIN THE APPEAL, WE REMAND THE
CAUSE, IN COMPLIANCE WITH THE ACT OF MAY 9, 1942, TO THE CIRCUIT COURT
OF APPEALS FOR THE TENTH CIRCUIT, WHICH WILL HAVE AUTHORITY TO PASS
UPON THE CONSTRUCTION BOTH OF THE INDICTMENT AND THE STATUTE.  SO
ORDERED. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE MURPHY THINK
THAT THE RULING OF THE DISTRICT COURT WAS BASED ON A "CONSTRUCTION" OF
THE SHERMAN ACT AND THAT THIS COURT THEREFORE HAS JURISDICTION TO
REVIEW THE JUDGMENT. 

MR. JUSTICE JACKSON, CONCURRING: 

I AGREE WITH THE DISSENTING JUSTICES THAT THE DECISION OF THE
DISTRICT COURT IS "BASED" UPON THE CONSTRUCTION OF THE SHERMAN ACT. 
THE DISTRICT COURT HAS ALSO DRAWN CONCLUSIONS FROM THE LANGUAGE OF THE
INDICTMENT WHICH CAN NO DOUBT BE SAID TO AMOUNT TO A CONSTRUCTION OF
THE INDICTMENT.  BUT I DO NOT THINK THAT THE COURT'S CONSTRUCTION OF
THE INDICTMENT CONSTITUTES AN INDEPENDENT GROUND OF DECISION SUCH AS
THIS COURT HAS HELD PRECLUDES ITS REVIEW ON DIRECT APPEAL. 

HOWEVER, ONE-HALF OF THE MEMBERSHIP OF THE COURT AS CONSTITUTED AT
THE TIME THIS CASE WAS SUBMITTED DO NOT AGREE WITH THIS VIEW, WHICH IS
CERTAINLY NOT FREE FROM DOUBT AND IS BASED ON INFERENCES FROM AN ORAL
AND INFORMAL ANNOUNCEMENT OF THE DISTRICT COURT.  IN CONNECTION WITH
THE DIFFICULT PROBLEMS THAT COME UP AS A RESULT OF A DUAL APPEAL, WE
WOULD BE GREATLY AIDED IF THE DISTRICT COURTS IN DISMISSING AN
INDICTMENT WOULD INDICATE IN THE ORDER THE GROUND, AND, IF MORE THAN
ONE, WOULD SEPARATELY STATE AND NUMBER THEM.  I AM CONFIDENT THAT A
REQUEST FROM THE GOVERNMENT TO DO SO WOULD GENERALLY BE GRANTED AND
THAT TO DO SO WOULD BE OF ASSISTANCE TO THE GOVERNMENT IN TAKING, AND
TO US IN PASSING ON, APPEALS. 

IF THE COURT IS TO DISPATCH ITS BUSINESS AS AN INSTITUTION, SOME
ACCOMMODATION OF VIEWS IS NECESSARY AND, WHERE NO PRINCIPLE OF
IMPORTANCE IS AT STAKE, THERE ARE TIMES WHEN AN INSISTENCE UPON A
DIVISION IS NOT IN THE INTERESTS OF THE BEST ADMINISTRATION OF
JUSTICE. 

SUCH A CASE I CONSIDER THIS TO BE.  TO PERSIST IN MY DISSENT WOULD
RESULT EITHER IN AFFIRMANCE OF THE JUDGMENT BY AN EQUALLY DIVIDED COURT
OR IN A REARGUMENT.  THERE IS DIFFERENCE OF OPINION AS TO WHETHER, IF
WE HAVE JURISDICTION, WE MAY PROCEED BEYOND THE CONSTRUCTION OF THE ACT
AND REVIEW OPINIONS ABOUT THE INDICTMENT WHICH THE LOWER COURT
EXPRESSED BUT DID NOT RELY UPON AS AN INDEPENDENT GROUND OF DECISION. 
ON THAT QUESTION I RESERVE OPINION. 

IF, UPON REARGUMENT IN THIS COURT, IT SHOULD BE DECIDED THAT OUR
REVIEW IS LIMITED TO THE CORRECTNESS OF THE DISTRICT COURT'S
CONSTRUCTION OF THE ACT, AND THAT IT ERRED IN THIS RESPECT, THE VIEWS
WHICH THE DISTRICT COURT HAS EXPRESSED AS TO THE SUFFICIENCY OF THE
ALLEGATIONS OF THE INDICTMENT WOULD BE LIKELY TO EMBARRASS THE TRIAL
COURT IN PASSING ON OFFERS OF PROOF, ADMISSIBILITY OF EVIDENCE, MOTIONS
GOING TO THE SUFFICIENCY OF THE EVIDENCE, AND OTHER QUESTIONS.  IT IS
NOT UNLIKELY THAT THE TRIAL COURT WOULD REGARD THE STATEMENTS OF THE
DISTRICT COURT ABOUT THIS INDICTMENT AS "THE LAW OF THE CASE." 

HOWEVER THE CASE MAY BE DISPOSED OF, REARGUMENT SEEMS TO BE IN ORDER,
AND I BELIEVE THAT THE PRACTICAL ADVANTAGES FAVOR REARGUING IT BEFORE
THE CIRCUIT COURT OF APPEALS, WHERE THERE IS NO DOUBT THAT ALL OF THE
QUESTIONS CAN BE DECIDED. 

UNDER THESE CIRCUMSTANCES, TO PERSIST IN MY DISSENT WOULD SEEM A
CAPTIOUS INSISTENCE UPON MY READING OF A DISTRICT COURT'S INFORMAL
OPINION AS TO WHICH THERE IS REASONABLE GROUND FOR DIFFERENCE.  I
SHOULD NOT DESIRE TO APPEAR COMMITTED TO THIS CASE AS A PRECEDENT.  I
CONCUR IN THE RESULT ONLY BECAUSE IT SEEMS THE MOST SENSIBLE WAY OUT OF
OUR IMPASSE IN THE IMMEDIATE CASE. 
..END :























ECKER V. WESTERN PACIFIC R. CORP., 318 U.S. 448 


NO. 7.  ARGUED OCTOBER 13, 14, 1942.  - DECIDED MARCH 15, 1943.  - 124
F.2D 136, REVERSED. 


1.  SECTION 77 OF THE BANKRUPTCY ACT, PROVIDING FOR THE REORGANIZATION
OF RAILROADS ENGAGED IN INTERSTATE COMMERCE, CONSTRUED WITH RESPECT TO
THE FUNCTIONS OF THE DISTRICT COURT AND THE INTERSTATE COMMERCE
COMMISSION.  P. 466. 

2.  IN RESPECT OF A PLAN OF REORGANIZATION FOR THE WESTERN PACIFIC
RAILROAD COMPANY, CERTIFIED TO IT BY THE INTERSTATE COMMERCE
COMMISSION, THE DISTRICT COURT FUNCTIONED IN ACCORDANCE WITH THE
REQUIREMENTS OF SEC. 77 OF THE BANKRUPTCY ACT.  P. 475. 

3.  IN A RAILROAD REORGANIZATION PROCEEDING UNDER SEC. 77 OF THE
BANKRUPTCY ACT, THE INTERSTATE COMMERCE COMMISSION'S DETERMINATION OF
VALUE, SUPPORTED BY EVIDENCE AND IN ACCORDANCE WITH LEGAL STANDARDS, IS
NOT SUBJECT TO REEXAMINATION BY THE COURT.  P. 472. 

4.  THE DETERMINATION OF WHETHER A PLAN OF REORGANIZATION UNDER SEC.
77 IS "COMPATIBLE WITH THE PUBLIC INTEREST" IS FOR THE COMMISSION.  P.
473. 

5.  THE PHRASE "COMPATIBLE WITH THE PUBLIC INTEREST" INCLUDES
QUESTIONS AS TO THE CHARACTER AND AMOUNT OF THE CAPITALIZATION OF THE
REORGANIZED CORPORATION; AND, SO LONG AS LEGAL STANDARDS ARE FOLLOWED,
THE JUDGMENT OF THE COMMISSION ON SUCH QUESTIONS IS FINAL.  P. 473. 

6.  IN PASSING UPON A PLAN OF REORGANIZATION UNDER SEC. 77, THE
DISTRICT COURT ACTS ONLY UPON THE ISSUES SPECIFICALLY DELEGATED BY
SUBSECTION (E).  P. 474. 

7.  SECTION 77(E) AUTHORIZES THE ELIMINATION FROM PARTICIPATION IN
THE REORGANIZATION OF STOCKHOLDERS AND CREDITORS WHOSE CLAIMS ARE
VALUELESS.  SUCH AUTHORIZATION IS A VALID EXERCISE OF THE POWER OF
CONGRESS IN RESPECT OF BANKRUPTCIES AND DOES NOT DEPRIVE SUCH CLAIMANTS
OF PROPERTY WITHOUT DUE PROCESS OF LAW.  P. 475. 

8.  NEITHER THE CONSTITUTION NOR THE BANKRUPTCY ACT REQUIRES THE
ISSUANCE OF WARRANTS TO STOCKHOLDERS AND CREDITORS WHOSE CLAIMS, FOUND
TO BE WITHOUT VALUE, HAVE BEEN ELIMINATED FROM PARTICIPATION IN THE
REORGANIZATION.  P. 476. 

9.  THE MERE POSSIBILITY THAT EARNINGS OF THE REORGANIZED RAILROAD
MAY EXCEED EXPECTATIONS DOES NOT JUSTIFY THE ISSUE OF SECURITIES.  P.
476. 

10.  THERE WAS NO VIOLATION OF LEGAL STANDARDS IN THE COMMISSION'S
REQUIREMENT OF A CAPITAL FUND FOR FUTURE ROUTINE ADDITIONS AND
BETTERMENTS; NOR IN THE ISSUE OF STOCK TO FORMER HOLDERS OF
INTERESTBEARING SECURITIES.  P. 476. 

11.  ALTHOUGH SEC. 77 DOES NOT CONTEMPLATE AN INDEPENDENT EXAMINATION
BY THE COURT INTO THE DETERMINATION OF VALUE, IT DOES REQUIRE THAT THE
COURT BE SATISFIED, UPON THE RECORD BEFORE THE COMMISSION WITH SUCH
ADDITIONAL EVIDENCE AS MAY BE PERTINENT TO THE OBJECTIONS TO THE
COMMISSION'S FINDING OF VALUE, THAT THE STATUTORY REQUIREMENTS HAVE
BEEN FOLLOWED.  P. 477. 

12.  THE COMMISSION'S CONCLUSION THAT CERTAIN SECURITIES OWNED BY THE
DEBTOR, REPRESENTING INTERESTS IN TWO COMPANIES OPERATING CONNECTING
LINES (WHICH SECURITIES THE DEBTOR HAD ACQUIRED IN ORDER THAT IT MIGHT
OBTAIN A FAIR SHARE OF THE BUSINESS FROM AND TO THOSE LINES), WERE
WITHOUT VALUE AND NOT ENTITLED TO PARTICIPATE IN THE REORGANIZATION -
IT APPEARING BEFORE THE COMMISSION THAT THE DEBTOR HAD FOR TEN YEARS
CONTRIBUTED SUBSTANTIAL SUMS ANNUALLY TO MEET DEFICITS OF EACH OF THE
COMPANIES; ALTHOUGH IN THE DISTRICT COURT IT WAS SHOWN THAT THE
COMPANIES WERE USEFUL AUXILIARIES TO THE BUSINESS OF THE DEBTOR - WAS
SUPPORTED BY MATERIAL EVIDENCE AND WAS PROPERLY ACCEPTED BY THE
DISTRICT COURT.  P. 478. 

13.  THE PROVISION OF SEC. 77(E) THAT THE PLAN OF REORGANIZATION NEED
NOT BE SUBMITTED TO STOCKHOLDERS AND CREDITORS WHEN THE COMMISSION
SHALL HAVE FOUND THEIR CLAIMS TO BE WITHOUT VALUE "AND THE JUDGE SHALL
HAVE AFFIRMED THE FINDING," DOES NOT REQUIRE THE COURT TO MAKE AN
INDEPENDENT APPRAISAL OF THE VALUATION FOUND BY THE COMMISSION.  P.
478. 

14.  THE COURT PROPERLY AFFIRMS THE COMMISSION WHEN IT FINDS NO LEGAL
OBJECTION TO THE COMMISSION'S VALUATION IN DETERMINING WHETHER
PARTICULAR CLAIMANTS ARE ENTITLED TO PARTICIPATE IN THE
REORGANIZATION.  P. 479. 

15.  SOUND RAILROAD REORGANIZATION REQUIRES CONSIDERATION OF THE
INTEREST OF THE PUBLIC IN AN ADEQUATE TRANSPORTATION SYSTEM, PROPERLY
FINANCED, AND THIS MUST BE BALANCED AGAINST THE SATISFACTION OF CLAIMS,
WITHOUT EQUITY, BY THE ISSUE OF SECURITIES WITHOUT REASONABLE
OPPORTUNITIES TO EARN A RETURN.  P. 481. 

16.  CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, 312 U.S. 510,
DISTINGUISHED.  P. 482. 

17.  IN THE CIRCUMSTANCES HERE, THE DETERMINATION BY THE COMMISSION
OF THE AGGREGATE AMOUNT OF SECURITIES WHICH MAY BE ISSUED BY THE
REORGANIZED COMPANY WAS IN SUBSTANCE A FINDING OF TOTAL VALUE FOR
REORGANIZATION PURPOSES; AND THE LACK OF A VALUATION IN DOLLARS IS
IMMATERIAL.  P. 483. 

18.  IT WAS NOT INCUMBENT UPON THE COMMISSION TO PRODUCE DATA AS TO
THE REPRODUCTION COST OF THE DEBTOR'S PROPERTY.  P. 483. 

19.  THE ALLOCATION TO HOLDERS OF TRUSTEES' CERTIFICATES AND THE
FIRST MORTGAGE, ALTHOUGH SENIOR CREDITORS, OF PREFERRED AND COMMON
STOCK AS WELL AS INCOME BONDS OF THE NEW COMPANY, WHILE SOME OF THE NEW
BONDS ARE ALLOCATED TO BONDHOLDERS SECURED BY THE GENERAL AND REFUNDING
MORTGAGE, WHO HAD A FIRST LIEN ON SOME ASSETS, DID NOT VIOLATE THE FULL
PRIORITY RULE.  P. 484. 

20.  UNDER THE ABSOLUTE PRIORITY RULE, THE STRATIFICATION OF
SECURITIES ISSUED TO CREDITORS NEED NOT FOLLOW INVARIABLY THE RELATIVE
PRIORITY OF THE CLAIMANTS, SO LONG AS THEY RECEIVE FULL COMPENSATORY
TREATMENT AND SO LONG AS EACH GROUP SHARES IN THE SECURITIES OF THE
WHOLE ENTERPRISE ON AN EQUITABLE BASIS.  P. 484. 

21.  THE TREATMENT ACCORDED THE RECONSTRUCTION FINANCE CORPORATION IN
THE ALLOCATION OF NEW SECURITIES, IN VIEW OF THE MONEY ADVANCED BY IT
TO THE DEBTOR DURING THE REORGANIZATION, HELD NOT INEQUITABLE TO OTHER
CREDITORS.  P. 485. 

22.  THE COMMISSION'S ALLOCATION OF SECURITIES IN THE PLAN OF
REORGANIZATION HERE, WAS BASED UPON THE RELATIVE PRIORITY, VALUE, AND
EQUITY OF THE VARIOUS CLAIMS OF CREDITORS, AND ITS CONCLUSIONS ARE IN
ACCORD WITH THE REQUIREMENTS AND STANDARDS OF SUBSECTIONS (B), (D) AND
(E)(1) OF THE ACT.  P. 488. 

23.  IN THE INTEREST OF EXPEDITION, THE COURT CONSIDERS HERE A
QUESTION WHICH, THOUGH NOT PASSED UPON BY THE CIRCUIT COURT OF APPEALS,
WAS FULLY PRESENTED BY THE PETITION FOR CERTIORARI, AND THE DECISION OF
WHICH IS ESSENTIAL TO A COMPLETE REVIEW OF THE DISTRICT COURT.  P.
489. 

24.  THE DISTRICT COURT'S CONCLUSIONS ADOPTING THE COMMISSION'S
TENTATIVE DETERMINATIONS AS TO THE PRIORITY OF THE FIRST MORTGAGE WITH
RESPECT TO THE DEBTOR'S EQUITY IN CERTAIN AFTER-ACQUIRED ROLLING STOCK
AND EQUIPMENT ACQUIRED UNDER EQUIPMENT TRUSTS AND A LEASE; THE DEBTOR'S
INTEREST IN AN AFTER-ACQUIRED BRANCH LINE; AND THE DEBTOR'S TITLE TO
CERTAIN "NON-CARRIER" REALTY, ARE HERE AFFIRMED.  PP. 489, 503. 

25.  THE PROVISION OF THE PLAN DIRECTING THAT "ALL COLLATERAL PLEDGED
BY THE DEBTOR AS SECURITY FOR NOTES TO THE RECONSTRUCTION FINANCE
CORPORATION, THE RAILROAD CREDIT CORPORATION, AND THE A.C. JAMES
COMPANY SHALL BE REDUCED TO POSSESSION BY THE RESPECTIVE PLEDGEES
THEREOF, AND SHALL BE BY THEM SURRENDERED TO THE REORGANIZED COMPANY
AND CANCELED," IS SUSTAINED.  P. 503. 

26.  THE SHOWING MADE BEFORE THE DISTRICT COURT AS TO CHANGED
CONDITIONS SINCE THE CERTIFICATION OF THE PLAN BY THE COMMISSION,
AFFORDS NO BASIS FOR REJECTION OF THE COMMISSION'S PLAN.  P. 508. 

27.  THE COMMISSION'S SELECTION OF JANUARY 1, 1939, AS THE EFFECTIVE
DATE OF THE PLAN WAS WITHIN ITS AUTHORITY UNDER SUBSECTION (B) OF SEC.
77.  P. 509. 

28.  ON THIS REVIEW OF THE ACTION OF THE DISTRICT COURT, COSTS ARE
HERE PROPERLY ASSESSED AGAINST THE LOSING PARTIES, WITHOUT PREJUDICE TO
AN ALLOWANCE FOR DISBURSEMENTS UNDER SUBSECTION (C)(12).  P. 510. 

ECKER ET AL., CONSTITUTING INSTITUTIONAL BONDHOLDERS COMMITTEE, V.
WESTERN PACIFIC RAILROAD CORP. ET AL.* 

*TOGETHER WITH NO. 8, CROCKER FIRST NATIONAL BANK ET AL., TRUSTEES,
V. WESTERN PACIFIC RAILROAD CORP. ET AL.; NO. 20, WESTERN PACIFIC
RAILROAD CO. V. ECKER ET AL.; NO. 33, RECONSTRUCTION FINANCE CORP. V.
WESTERN PACIFIC RAILROAD CORP. ET AL.; AND NO. 61, IRVING TRUST CO.,
SUBSTITUTED TRUSTEE, V. CROCKER FIRST NATIONAL BANK ET AL., ALSO ON
WRITS OF CERTIORARI, 316 U.S. 654, TO THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 316 U.S. 654, TO REVIEW THE REVERSAL OF AN ORDER OF THE
DISTRICT COURT APPROVING A PLAN OF REORGANIZATION FOR THE WESTERN
PACIFIC RAILROAD COMPANY, 34 F.SUPP.  493.  SEE ALSO 230 I.C.C. 61; 233
I.C.C. 409, AND 236 I.C.C. 1. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONERS SEEK REVIEW OF A DECREE OF THE CIRCUIT COURT OF APPEALS
IN THE REORGANIZATION OF THE WESTERN PACIFIC RAILROAD COMPANY UNDER
SEC. 77 OF THE BANKRUPTCY ACT.  THAT DECREE REVERSED THE ORDER OF THE
DISTRICT COURT WHICH HAD APPROVED THE PLAN FOR REORGANIZATION CERTIFIED
TO IT BY THE INTERSTATE COMMERCE COMMISSION.  FN1 

THE PETITIONS FOR CERTIORARI ASK ADJUDICATION OF QUESTIONS WHICH ARE
IMPORTANT IN THE FIELD OF RAILROAD REORGANIZATION.  THEY INVOLVE THE
RESPECTIVE FUNCTION OF COMMISSION AND COURT, THE METHOD OF VALUATION OF
RAILROAD PROPERTY BY THE COMMISSION, THE LEGALITY OF THE EXCLUSION OF
STOCKHOLDERS AND CERTAIN CREDITORS FROM PARTICIPATION IN THE ESTATE, A
MORE FAVORABLE PARTICIPATION OF A RECONSTRUCTION FINANCE CORPORATION
CLAIM BECAUSE OF NEW MONEY FURNISHED FOR THE PLAN, ALLOCATION OF
SECURITIES AMONG CLAIMANTS, PRIORITIES OF LIENS CREATED BY DIFFERENT
MORTGAGES AND SUBSIDIARY ISSUES.  HERETOFORE THIS COURT HAS NOT PASSED
UPON THEM.  FOR THEIR DETERMINATION WE GRANTED CERTIORARI.  316 U.S.
654. 

THE DEBTOR RAILROAD COMPANY FILED ITS PETITION IN THE DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA ON AUGUST 2, 1935, ALLEGING ITS
INABILITY TO PAY AND DISCHARGE ITS INDEBTEDNESS AS IT MATURED AND
PRAYING FOR REORGANIZATION UNDER SEC. 77.  THE PETITION WAS APPROVED AS
PROPERLY FILED, TRUSTEES WERE APPOINTED, THEIR APPOINTMENT RATIFIED,
207 I.C.C. 793, AND THE APPROPRIATE STEPS TAKEN TO BRING THE PLAN OF
REORGANIZATION BEFORE THE COMMISSION FOR CONSIDERATION.  PUBLIC
HEARINGS WERE HELD BY THE COMMISSION AT WHICH OTHER PLANS FOR
REORGANIZATION WERE FILED, ONE BY A GROUP OF BONDHOLDERS KNOWN AS THE
INSTITUTIONAL BONDHOLDERS COMMITTEE AND ONE BY THE A.C. JAMES COMPANY,
A SECURED CREDITOR OF THE DEBTOR WHICH ALSO WAS FINANCIALLY INTERESTED
IN THE TREATMENT ACCORDED THE PREFERRED AND COMMON STOCK OF THE
DEBTOR.  AFTER FULL CONSIDERATION OF THE PROBLEMS OF THE DEBTOR'S
REORGANIZATION AND AFTER THE DEVELOPMENT OF A PLAN DEEMED IN ACCORDANCE
WITH SEC. 77, THE COMMISSION CERTIFIED ITS PLAN TO THE DISTRICT COURT
ON SEPTEMBER 28, 1939. 

THE COMMISSION'S CONCLUSIONS AND ORDERS WERE REACHED UPON EXCEPTIONS
TO THE REPORT OF ITS BUREAU OF FINANCE.  ITS PLAN WAS THE OUTGROWTH OF
A STUDY OF THE FINANCIAL CONDITION AND ECONOMIC SITUATION OF THE
DEBTOR, VIEWED IN THE SETTING OF THE PUBLIC INTEREST IN A NATIONAL
TRANSPORTATION SYSTEM.  THE COMPETING CLAIMS OF THE VARIOUS CLASSES OF
CREDITORS AND STOCKHOLDERS WERE APPRAISED IN THE LIGHT OF THE
REQUIREMENTS OF THE ACT THAT THEY BE ACCORDED FAIR AND EQUITABLE
TREATMENT.  THERE IS LITTLE IF ANY DISPUTE CONCERNING THE PRIMARY FACTS
FROM WHICH FACTUAL OR LEGAL INFERENCES ARE TO BE DRAWN. 

THE DEBTOR IS A CALIFORNIA CORPORATION WITH ITS PRINCIPAL OPERATING
OFFICE IN SAN FRANCISCO.  IT CARRIES ON AN INTERSTATE RAILROAD BUSINESS
BETWEEN THE STATES OF CALIFORNIA, NEVADA AND UTAH.  FN2 FOR AN
UNDERSTANDING OF THIS OPINION THE OBLIGATIONS OF THE DEBTOR AS OF
JANUARY 1, 1939, THE DATE PROPOSED FOR THE BEGINNING OF THE OPERATION
OF THE PLAN, MAY BE STATED AS FOLLOWS:  (CHART OMITTED) 

PAYMENT OF THIS INDEBTEDNESS WAS SECURED BY LIENS, COLLATERAL OR
PRIORITY, AS FOLLOWS: 

THE TRUSTEES' CERTIFICATES OF $10,000,000 ARE SECURED BY A LIEN ON THE
ENTIRE ESTATE AND PRIORITY OVER ALL CLAIMS BEYOND REORGANIZATION
EXPENSES. 

THE EQUIPMENT OBLIGATIONS OF $2,750,050 ARE SECURED BY ROLLING STOCK,
ACQUIRED FREE OF THE LIENS OF MORTGAGES, THROUGH DIRECT LIENS OR TRUST
ARRANGEMENTS.  NO ONE DISPUTES THE SOUND CHARACTER OF ANY OF THESE
SECURITIES.  THEY ARE GIVEN PRIORITY OVER THE FIXED OBLIGATIONS OF THE
REORGANIZED COMPANY. 

SUBJECT TO THE TRUSTEES' CERTIFICATES AND EQUIPMENT OBLIGATIONS, THE
FIRST MORTGAGE 5% BONDS OF $62,433,876.66, FACE AND INTEREST TO THE
EFFECTIVE DATE OF THE PLAN, ARE SECURED BY PRIOR LIENS ON ALL VALUABLE
PROPERTY OF THE DEBTOR, EXCEPT (1) MONEY, ACCOUNTS, OPERATING BALANCES
AND CASH ITEMS, AND (2) CERTAIN ASSETS, REFERRED TO IN THE NEXT
PARAGRAPH, UPON WHICH THE GENERAL AND REFUNDING BONDS HAVE A FIRST
LIEN, DEEMED BY THE COMMISSION TO BE OF VALUE SUFFICIENT TO SUPPORT
$732,010 OF NEW INCOME MORTGAGE BONDS AND NEW PREFERRED STOCK OF
$1,147,955 PAR. THE TOTAL FACE AND ASSUMED VALUE OF THE SECURITIES
AUTHORIZED BY THE PLAN, AS EVIDENCE OF THE ENTIRE VALUE OF THE SYSTEM,
IS $84,000,000 PLUS.  SEE P. 481, INFRA.  THIS PARAGRAPH REFLECTS OUR
CONCLUSIONS AS TO PRIORITIES OF THE LIENS OF THE RESPECTIVE MORTGAGES
LATER DISCUSSED.  SEE PRIORITIES OF CONFLICTING LIENS, P. 489, INFRA. 

THE LATER GENERAL AND REFUNDING MORTGAGE BONDS, $18,999,500 IN FACE
AMOUNT, ARE SECURED BY A FIRST LIEN ON PROPERTIES DETERMINED BY THE
COMMISSION TO BE OF A VALUE AND EARNING POWER SUFFICIENT TO SUPPORT
ISSUES OF NEW INCOME BONDS AND PARTICIPATING PREFERRED STOCK OF
$732,010 AND $1,147,955, RESPECTIVELY.  SEE 233 I.C.C. 414 ET SEQ. THEY
ARE FURTHER SECURED, SUBJECT TO THE PRIOR RIGHTS AND OTHER EXCEPTIONS
OF THE OBLIGATIONS LISTED IN THE PRECEDING PARAGRAPHS, BY A LIEN ON ALL
VALUABLE PROPERTY OF THE DEBTOR.  ALL OF THIS SERIES WHICH WERE ISSUED
ARE PLEDGED TO SECURE THE COLLATERAL NOTES IN THE AMOUNTS INDICATED IN
THE PRECEDING TABLE. 

BY REASON OF AN ARRANGEMENT WITH THE RECONSTRUCTION FINANCE
CORPORATION, DETAILED LATER IN THE SECTION OF THIS OPINION HEADED
ALLOCATION OF SECURITIES, B, P. 485, INFRA, THE DISTRIBUTION OF
SECURITIES TO CREDITORS DID NOT REFLECT ABSOLUTELY THEIR PRIORITY
POSITION.  THE COLLATERAL NOTES OWNED BY THE R.F.C. WERE TREATED IN THE
DISTRIBUTION OF SECURITIES ON THE SAME BASIS AS WERE THE CLAIMS OF OLD
FIRST BONDHOLDERS.  THE RESULT IS SUMMARIZED BY THE TABLE ON PAGE 461
AND FOOTNOTES 5 AND 6. 

BY STIPULATION OF THE PARTIES, THE RECORD SHOWS THAT THE VALUE OF THE
PROPERTY OF THE DEBTOR AND ITS SUBSIDIARIES, "AS FOUND BY THE
INTERSTATE COMMERCE COMMISSION UNDER SECTION 19(A) OF THE INTERSTATE
COMMERCE ACT, WITH ADDITIONS AND BETTERMENTS, NEW LINES AND EXTENSIONS,
SUBSEQUENT TO DATE OF VALUATION, PLUS NON-OPERATING PROPERTIES," WAS
$150,907,623.49 AS OF DECEMBER 31, 1938.  IT IS FURTHER STIPULATED THAT
THERE IS NO DEFERRED MAINTENANCE IN THE DEBTOR'S PROPERTIES.  "ITS
FACILITIES AND EQUIPMENT ARE SUFFICIENT TO HANDLE EXPEDITIOUSLY AND
EFFICIENTLY ALL TRAFFIC REASONABLY TO BE ANTICIPATED IN THE IMMEDIATE
FUTURE."  THE VALUE OF THE DEBTOR'S SYSTEM, WITH EQUIPMENT DEPRECIATED,
WAS $144,978,559 AS OF DECEMBER 31, 1938. 

THERE IS AGREEMENT AS TO THE AMOUNT OF SYSTEM EARNINGS AVAILABLE FOR
INTEREST FOR 1922 TO 1939, INCLUSIVE.  THE AMOUNTS FOLLOW:  FN3

         ADJUSTED CONSOLIDATED EARNINGS AVAILABLE FOR INTEREST 

1922 - $2,404,890        1928 - $4,376,972        1934 - $1,396,353 

1923 -  3,412,234      1929 -  3,718,436        1935 -  1,377,026 

1924 -  3,241,823        1930 -  2,381,529        1936 -  1,901,423 

1925 -  4,557,798        1931 -    220,494(DEFICIT1937 -  1,077,407 

1926 -  4,868,390        1932 -    283,912        1938 -    225,431 

1927 -  3,470,861        1933 -    474,365    1939 -  1,519,916 

IT IS TO BE BORNE IN MIND THAT WHILE THESE FIGURES REPRESENT NET
INCOME OF THE SYSTEM, AS SHOWN BY ITS COMBINED INCOME ACCOUNT, ADJUSTED
AS INDICATED, FACTORS OTHER THAN THE NET INCOME RESULT WERE PLACED
BEFORE AND WEIGHED BY THE COMMISSION AND THE DISTRICT COURT.  OF COURSE
THE FLUCTUATING OPERATING REVENUES FOR THE PERIODS FROM FREIGHT,
PASSENGER, MAIL, EXPRESS, VICTUALING AND MISCELLANEOUS WERE CONSIDERED,
AS WELL AS THE CORRESPONDING LABOR, POWER, TAX, RENTAL AND
MISCELLANEOUS EXPENSES.  OPERATING RATIO PERCENTAGES FOR THE VARIOUS
YEARS ARE AVAILABLE IN THE EVIDENCE. 

THE STIPULATED OPERATING REVENUES OF THE DEBTOR'S SYSTEM FOR THE
YEARS 1922-1938 AND THE FIRST NINE MONTHS OF 1939 ARE AS FOLLOWS: 

1922---$12,736,564 1928---$19,421,851 1934----------------
$13,779,238 

1923--- 14,414,812 1929--- 20,096,557 1935-----------------
14,407,458 

1924--- 14,669,313 1930--- 18,819,062 1936-----------------
16,547,344 

1925--- 15,898,548 1931--- 14,852,938 1937-----------------
17,918,485 

1926--- 17,951,468 1932--- 12,251,071 1938-----------------
16,057,451 

1927--- 18,306,675 1933--- 12,202,489 1939(1ST 9 MTHS.)----
12,836,985 

FURTHERMORE, THE RECORD SHOWS THE FAVORABLE EFFECT UPON THE SYSTEM'S
GROSS OPERATING REVENUE OF THE EXTENSION OF ITS LINES INTO NORTHERN
CALIFORNIA.  THIS NEW CONSTRUCTION, KNOWN AS THE NORTHERN CALIFORNIA
EXTENSION, WAS PUT INTO OPERATION IN 1932 AND CONTRIBUTED THE FOLLOWING
GROSS REVENUES FROM FREIGHT ORIGINATING, TERMINATING AND PASSING OVER
THE EXTENSION: 

1932--------------------$1,098,016  1936-------------------
$3,151,734 

1933-------------------- 1,491,466  1937--------------------
3,425,601 

1934-------------------- 2,119,427  1938--------------------
3,093,676 

1935-------------------- 2,289,858  1939(FIRST 9 MONTHS)----
2,463,484 

THE EXTENSION IS A LINK IN A PACIFIC COAST ROUTE CREATED BY THIS
NORTHERLY EXTENSION AND A CORRESPONDING SOUTHERLY EXTENSION BY THE
GREAT NORTHERN RAILROAD COMPANY WHICH JOIN AT BIEBER, CALIFORNIA.  THE
EXTENSION COST OVER TEN MILLION DOLLARS AND WAS BUILT WITH THE
EXPECTATION, SINCE REALIZED, OF MATERIALLY INCREASING THE VALUE OF THE
DEBTOR'S PROPERTY AS AN OPERATING ROAD.  THE COMMISSION GAVE
CONSIDERATION TO THIS FACTOR IN ESTIMATING THE PROBABILITIES OF FUTURE
INCOME. 

PROSPECTS FOR MAINTAINING AND INCREASING THE DEBTOR'S TRAFFIC AND SO
ITS NET FOR INTEREST AND DIVIDENDS ARE INFLUENCED BY THE FACT THAT IT
DEPENDS TO A CONSIDERABLE EXTENT UPON TRAFFIC ARRANGEMENTS WITH OTHER
LINES.  THE DEBTOR'S MAIN LINE FROM OAKLAND, CALIFORNIA, TO SALT LAKE
CITY IS AN IMPORTANT SECTION OF A THROUGH ROUTE FROM THE PACIFIC COAST
TO THE MIDWEST.  IN CONJUNCTION WITH THE DENVER & RIO GRANDE WESTERN
AND THE MISSOURI PACIFIC RAILROAD COMPANY IT OFFERS FAST THROUGH
SCHEDULES.  THE DENVER & RIO GRANDE WESTERN COMPLETED, IN 1934, THE
DOTSERO CUTOFF.  THIS CUTOFF AND THE MOFFATT TUNNEL, A NEARBY
IMPROVEMENT OF THE DENVER AND SALT LAKE, USED TOGETHER MATERIALLY
SHORTEN THE RAILROAD DISTANCE BETWEEN PACIFIC COAST AND MIDWEST POINTS
AND OPEN TO PASSENGER TRAFFIC A SCENIC ROUTE OF GREAT BEAUTY.  THE
HEARINGS ON REORGANIZATION MAKE THESE FACTS AS TO THE LIKELIHOOD OF
INCREASED TRAFFIC AVAILABLE TO THE COMMISSION AND COURT. 

THESE BASIC FACTORS OF PHYSICAL CONDITION, TRAFFIC, GROSS AND NET
INCOME ET CETERA WERE BEFORE THE COMMISSION AND THE COURTS.  FROM THEM
THERE WAS TO BE PROJECTED AN ESTIMATE AS TO THE FUTURE FROM WHICH WAS
TO BE DRAWN A PRESENT VALUATION OF THE PROPERTY AND ITS ABILITY TO
CARRY BY ITS EARNINGS A CERTAIN VOLUME IN DOLLARS OF SECURITIES.  THERE
ARE NO ASSETS OF SIGNIFICANT WORTH WHICH ARE NOT IN ACTIVE USE AS
PRODUCERS OF INCOME.  RELYING LARGELY UPON PAST EARNINGS, THE
COMMISSION FOUND "THAT THE FIXED INTEREST CHARGES OF THE REORGANIZED
COMPANY SHOULD NOT INITIALLY AND SUBSTANTIALLY EXCEED $500,000, IF THE
REORGANIZED COMPANY IS TO MAINTAIN ITS PROPERTY PROPERLY AND SECURE
NECESSARY NEW CAPITAL IN THE FUTURE."  IT FURTHER DETERMINED THAT THE
PLAN SHOULD PROVIDE A CAPITAL FUND FOR FUTURE ROUTINE ADDITIONS AND
BETTERMENTS.  THIS WAS ESTIMATED TO REQUIRE $500,000 ANNUALLY.  FN4
CARRYING CHARGES OF $94,202 ON EXISTING EQUIPMENT TRUSTS WERE TO BE
ASSUMED BY THE REORGANIZED CORPORATION.  A NEW $10,000,000 FIRST
MORTGAGE 4% BOND ISSUE WAS ALLOTTED $400,000 ANNUALLY.  THESE FIXED
CHARGES AGGREGATE $994,202.  IN ADDITION TO THE FIXED CHARGES, THE
COMMISSION DETERMINED THE SYSTEM REASONABLY COULD CARRY ANOTHER
$1,000,000 OF CONTINGENT CHARGES.  THUS THE OVER-ALL CHARGE FOR ANNUAL
FIXED AND CONTINGENT INTEREST, CAPITAL AND SINKING FUNDS WAS LIMITED TO
APPROXIMATELY $2,000,000 PER ANNUM.  INCOME MORTGAGE 4 1/2% BONDS WERE
AUTHORIZED IN THE AMOUNT OF $21,219,075.  THEIR ANNUAL INTEREST COMES
TO $954,858 AND THEIR ONE-HALF PER CENT SINKING FUND CALLS FOR
$106,095. 

IN VIEW OF THE FOREGOING LIMITATION, CAPITALIZATION OF THE
REORGANIZED COMPANY WAS FIXED AT $2,750,050 OF UNDISTURBED EQUIPMENT
OBLIGATIONS, $10,000,000 OF FIRST MORTGAGE 4% BONDS, $21,219,075 OF
INCOME MORTGAGE 4 1/2% BONDS, $31,850,297 OF 5% PREFERRED STOCK, AND
319,441 SHARES OF COMMON STOCK WITHOUT PAR VALUE.  FN5  THESE ISSUES OF
PREFERRED AND COMMON WERE BASED UPON POSSIBLE EARNINGS IN ADDITION TO
THE $2,000,000 PLUS.  THESE SECURITIES WERE ALLOTTED BY THE COMMISSION
UPON CONSIDERATION OF "THE RELATIVE PRIORITY, VALUE, AND EQUITY OF THE
VARIOUS CLAIMS AND THE VALUE OF THE NEW SECURITIES AVAILABLE IN
EXCHANGE THEREFOR," AS FOLLOWS:  FN6  (CHART OMITTED)    THE COMMISSION
FOUND, CORRELATIVE TO AND AS A BASIS FOR ITS ALLOCATION OF SECURITIES,
THAT "THE EQUITY OF THE EXISTING STOCK HAS NO VALUE, AND HENCE HOLDERS
OF SUCH STOCK ARE NOT ENTITLED TO PARTICIPATE IN THE PLAN.  FURTHER,
CONSIDERING THAT THE REORGANIZED COMPANY'S INCOME AVAILABLE FOR
INTEREST AND DIVIDENDS MUST TOTAL $4,318,035, (*) PLUS ANY
UNDISTRIBUTED PROFITS TAX THAT WILL BE PAYABLE, BEFORE DIVIDENDS OF $3
PER SHARE MAY BE PAID ON THE NEW COMMON STOCK, IT IS CLEAR THAT, EVEN
THOUGH ALL THE SECURITIES REMAINING AVAILABLE FOR DISTRIBUTION AFTER
SATISFYING THE CLAIMS OF THE FIRST-MORTGAGE BONDHOLDERS ARE ALLOTTED TO
THE OTHER SECURED CREDITORS, SUCH SECURITIES WILL BE INADEQUATE IN
VALUE TO SATISFY THEIR CLAIMS.  FOR THIS REASON, AND FOR THE REASONS
STATED WITH RESPECT TO THE FINDING THAT THE EQUITY OF THE EXISTING
STOCK HAS NO VALUE, WE FIND THAT THE CLAIMS OF THE UNSECURED CREDITORS,
OF THE WESTERN PACIFIC RAILROAD CORPORATION, AND OF THE WESTERN REALTY
COMPANY, HAVE NO VALUE, AND HENCE NO SECURITIES OR CASH SHOULD BE
DISTRIBUTED UNDER THE PLAN IN RESPECT OF THOSE CLAIMS."  230 I.C.C.
101. 

*THIS AMOUNT NOW IS SOMEWHAT LARGER ON ACCOUNT OF INCREASED FACE OF
SECURITIES.  233 I.C.C. AT 412. 

THE PLAN AND A TRANSCRIPT OF THE PROCEEDINGS BEFORE THE COMMISSION
WERE DULY CERTIFIED TO THE DISTRICT COURT.  IN RE WESTERN PACIFIC R.
CO., 34 F.SUPP.  493, 495.  THE PLAN IN COMPLETE FORM AND A DETAILED
DISCUSSION OF THE HISTORY, PROPERTY AND BUSINESS PROSPECTS OF THE
DEBTOR APPEAR IN THE VARIOUS REPORTS OF THE COMMISSION AND THE OPINION
BELOW.  SEE NOTE 1 SUPRA.  THE DISTRICT COURT HEARD THE PROTESTS
AGAINST THE ACTION OF THE COMMISSION AND THE ADDITIONAL EVIDENCE
OFFERED, AND FOUND THAT THE PLAN CONFORMED IN ALL RESPECTS TO THE
REQUIREMENTS OF SEC. 77.  FN7  ALL OBJECTIONS TO THE PLAN WERE
THEREFORE OVERRULED AND THE COURT DIRECTED THAT A COPY OF THE ORDER AND
OPINION BE TRANSMITTED TO THE COMMISSION FOR USE IN SUBMITTING THE PLAN
FOR ACTION TO THE FIRST MORTGAGE BONDHOLDERS, THE R.F.C., THE A.C.
JAMES CO. AND THE RAILROAD CREDIT CORPORATION, THE ONLY CREDITORS FOUND
TO BE ENTITLED TO VOTE ON THE ADOPTION OF THE PLAN. 

ON APPEAL TO THE CIRCUIT COURT OF APPEALS, JUDICIAL CODE SEC. 128, 43
STAT. 936, THIS ORDER WAS REVERSED.  THE COURT RESTED UPON THE
NECESSITY OF SPECIFIC VALUATION OF THE ENTIRE PROPERTY, OF THE
RESPECTIVE PORTIONS OF IT COVERED BY THE FIRST MORTGAGE AND THE
REFUNDING MORTGAGE, OF EACH OF THE CLAIMS AND OF THE NEW SECURITIES
ALLOCATED TO THE CREDITORS.  SUCH ACTION WAS DEEMED ESSENTIAL TO ENABLE
THE DISTRICT COURT TO EXERCISE ITS INDEPENDENT JUDGMENT UPON MATTERS OF
VALUATION AND ALLOCATION.  THE FAILURE TO MAKE SUCH SEPARATE VALUATIONS
WAS HELD TO REQUIRE THE SETTING ASIDE OF THE DISTRICT COURT'S APPROVAL
OF THE PLAN.  SEE NOTE 26, INFRA. 

FUNCTION OF THE COURT.  THE CONCLUSION OF THE COURT OF APPEALS AS TO
THE NECESSITY FOR A DETAILED VALUATION SPRINGS FROM ITS INTERPRETATION
OF THE STATUTE AS TO THE FUNCTION OF THE DISTRICT COURT IN
REORGANIZATIONS.  THAT COURT HAD SAID IN ITS OPINION: 

"IT CANNOT BE GAINSAID THAT THE COMMISSION KNOWS ALL ABOUT THE
DEBTOR, ITS PROPERTY, ITS HISTORY, FINANCIAL AND OTHERWISE, ITS TRAFFIC
AND REVENUE, AND ITS FINANCIAL STRUCTURE.  NO OFFICIAL BODY IN THE
COUNTRY IS BETTER QUALIFIED, BY REASON OF EXPERIENCE, ABILITY AND
SPECIALIZED KNOWLEDGE THAN IS THE COMMISSION TO FIND THE ULTIMATE FACTS
AS TO THE DEBTOR IN RELATION TO ANY OF THE MATTERS MENTIONED."  IN RE
WESTERN PACIFIC R. CO., 34 F.SUPP.  493, 501. 

COMMENTING UPON THIS, THE COURT OF APPEALS SAID: 

"THE STATEMENT INDICATES A POSSIBLE MISCONCEPTION.  ... 

"IN DETERMINING WHETHER A PLAN OF REORGANIZATION SATISFIES THE
REQUIREMENTS OF SUBSECTION E, THE COURT IS NOT CONCLUDED BY ANY
DETERMINATION MADE BY THE COMMISSION, BUT MAY, AND MUST, EXERCISE ITS
OWN INDEPENDENT JUDGMENT; AND THIS IS TRUE WHETHER SUCH DETERMINATION
RELATES TO VALUE OR TO SOME OTHER SUBJECT.  INITIALLY, HOWEVER, THE
DUTY OF DETERMINING THE VALUE OF ANY PROPERTY FOR ANY PURPOSE UNDER
SEC. 77 RESTS ON THE COMMISSION, NOT ON THE COURT."  IN RE WESTERN
PACIFIC R. CO., 124 F.2D 136, 140. 

PETITIONERS IN NOS. 7, 8 AND 33 SEEK REVIEW OF THIS LAST RULING. 
THEIR PETITIONS FOR CERTIORARI QUERY WHETHER SEC. 77 DOES NOT VEST 

"IN THE COMMISSION EXCLUSIVE JURISDICTION (SUBJECT ONLY TO REVIEW FOR
ARBITRARY EXERCISE) TO DETERMINE WHETHER A RAILROAD REORGANIZATION PLAN
IS 'COMPATIBLE WITH THE PUBLIC INTEREST,' INCLUDING JURISDICTION TO
DETERMINE TOTAL CAPITALIZATION, THE CLASSIFICATION THEREOF, AND THE
FINANCIAL DETAILS OF EACH CLASS OF PROPOSED CAPITALIZATION?" 

THIS SUMMARY SUFFICIENTLY IDENTIFIES THE ISSUE WITHOUT THE NECESSITY
OF ELABORATING DIFFERENTIATIONS IN THE PETITIONERS' PRESENT VIEWS OR OF
DETERMINING THE DEGREE OF DIFFERENCE BETWEEN THE VIEWS OF THE DISTRICT
AND APPELLATE COURTS AS TO THE FUNCTION OF THE COURT UNDER SEC. 77. 

THE OPINION SHOWS THE ATTITUDE OF THE DISTRICT COURT, 34 F.SUPP. 
493, 503, 504:  "THE CAPITALIZATION PERMITTED BY THESE EARNINGS IS A
MERE MATTER OF COMPUTATION, WHICH WILL DEMONSTRATE THAT THE COMMISSION
DID NOT ACT ARBITRARILY IN LIMITING CAPITALIZATION NOR THE RESPECTIVE
CLASSES THEREOF.  ... 

"THE DETERMINATION OF THE AMOUNT AND CHARACTER OF THE CAPITALIZATION
(A LEGISLATIVE FUNCTION AFFECTING THE PUBLIC INTEREST) IS EXCLUSIVELY
WITHIN THE PROVINCE OF THE COMMISSION.  THE ONLY QUALIFICATION, IF ANY,
IS THAT THE COURT SHALL INDEPENDENTLY DETERMINE WHETHER, IN THE
EXERCISE OF ITS JURISDICTION, THE COMMISSION HAS ACTED FAIRLY, WITHIN
THE BOUNDS OF THE CONSTITUTION, AND NOT ARBITRARILY."  UPON THE OTHER
FINDINGS OF THE COMMISSION, THE DISTRICT COURT EXERCISED AN INDEPENDENT
JUDGMENT BASED UPON THE RECORD AND THE FINDINGS OF THE COMMISSION
TOGETHER WITH ADDITIONAL EVIDENCE PRODUCED BEFORE THE COURT BY THE
PARTIES.  34 F.SUPP.  493, 505. 

THESE REORGANIZATIONS REQUIRE SOMETHING MORE THAN CONTESTS BETWEEN
ADVERSARY INTERESTS TO PRODUCE PLANS WHICH ARE FAIR AND IN THE PUBLIC
INTEREST.  WHEN THE PUBLIC INTEREST, AS DISTINGUISHED FROM PRIVATE,
BULKS LARGE IN THE PROBLEM, THE SOLUTION IS LARGELY A FUNCTION OF THE
LEGISLATIVE AND ADMINISTRATIVE AGENCIES OF GOVERNMENT WITH THEIR
FACILITIES AND EXPERIENCE IN INVESTIGATING ALL ASPECTS OF THE PROBLEM
AND APPRAISING THE GENERAL INTEREST.  FN8  CONGRESS OUTLINED THE COURSE
REORGANIZATION IS TO FOLLOW.  IT ESTABLISHED STANDARDS FOR
ADMINISTRATION AND PLACED IN THE HANDS OF THE COMMISSION THE PRIMARY
RESPONSIBILITY FOR THE DEVELOPMENT OF A SUITABLE PLAN.  WHEN EXAMINED
TO LEARN THE PURPOSE OF ITS ENACTMENT, SEC. 77 MANIFESTS THE INTENTION
OF CONGRESS TO PLACE REORGANIZATION UNDER THE LEADERSHIP OF THE
COMMISSION, SUBJECT TO A DEGREE OF PARTICIPATION BY THE COURT. 

IT IS CLEAR FROM THE DISCUSSIONS AND THE STATUTE ITSELF THAT THERE
WAS RECOGNITION BY EVERYONE OF THE ADVANTAGES OF UTILIZING THE
FACILITIES OF THE COMMISSION FOR INVESTIGATION INTO THE MANY-SIDED
PROBLEMS OF TRANSPORTATION SERVICE, FINANCE AND PUBLIC INTEREST
INVOLVED IN EVEN MINOR RAILROAD REORGANIZATIONS AND UTILIZING THE
COMMISSION'S EXPERIENCE IN THESE FIELDS FOR THE APPRAISALS OF VALUES
AND THE DEVELOPMENT OF A PLAN OF REORGANIZATION, FAIR TO THE PUBLIC,
CREDITORS AND STOCKHOLDERS.  FN9  THE RESULTING LEGISLATION WAS AN
ATTEMPTED BALANCE BETWEEN THE POWER OF THE COMMISSION AND THAT OF THE
COURT. 

AS TO THE COURT'S PLACE IN REORGANIZATION, THE PRESENT STATUTE DOES
NOT VARY GREATLY FROM THE FIRST LEGISLATIVE EFFORT, ENACTED MARCH 3,
1933, TO REORGANIZE RAILROADS UNABLE TO MEET THEIR OBLIGATIONS.  FN10
THE AMENDMENTS OF 1935 WERE PRIMARILY DESIGNED TO CURE DEFECTS
DISCLOSED BY PRACTICAL EXPERIENCE.  FN11  BOTH ACTS ARE BOTTOMED UPON
THE THEORY OF DEBTOR REHABILITATION BY ADJUSTMENT OF CREDITORS'
CLAIMS.  SUCH TREATMENT WAS ESSENTIAL FOR EMBARRASSED RAILROADS, AS
ORDINARY BANKRUPTCY LIQUIDATION OR JUDICIAL SALES WERE IMPOSSIBLE
BECAUSE OF THE SIZE OF THEIR INDEBTEDNESS AND THE PAUCITY OF BUYERS. 
THE ACTS WERE A PART OF THE RELIEF GRANTED FINANCIALLY INVOLVED
CORPORATIONS, PUBLIC AND PRIVATE, IN THE DEPRESSION YEARS OF THE EARLY
THIRTIES.  FN12 SINCE RAILROADS COULD NOT TAKE ADVANTAGE OF THE
BANKRUPTCY ACT, SEC. 4, 11 U.S.C. SEC. 22, THEIR FINANCIAL ADJUSTMENTS
FOR YEARS HAD BEEN CARRIED OUT IN EQUITY RECEIVERSHIPS UNDER JUDICIAL
CONTROL.  THESE WERE CUMBERSOME, COSTLY AND PRIVATELY MANAGED WITH
INADEQUATE CONSIDERATION FOR THE PUBLIC INTEREST IN A SOUNDLY FINANCED
TRANSPORTATION SYSTEM.  CHICAGO, M. & ST. P. INVESTIGATION, 131 I.C.C.
615, 671; UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 282 U.S.
311, 331 DISSENT. 

THE FIRST BILL WAS INTRODUCED IN THE HOUSE JANUARY 21, 1933, AS H.R.
14359.  FN13  IT WAS DRAFTED SO AS TO PLACE "THE ENTIRE PLAN OF
REORGANIZATION UNDER THE JURISDICTION, SUPERVISION AND CONTROL" OF THE
COMMISSION.  AFTER COMMISSION APPROVAL, WHICH FOLLOWED STOCKHOLDER AND
CREDITOR APPROVAL, IT WAS TO TRANSMIT THE "APPROVED PLAN, ITS FINDINGS
AND THE RECORD TO THE COURT.  THE COURT'S REVIEW MUST BE BASED UPON THE
RECORD MADE BEFORE THE COMMISSION."  FN14  THIS SUBSTITUTION OF THE
COMMISSION FOR AN EQUITY RECEIVERSHIP UNDER COURT DIRECTION WAS
CRITICIZED AND AMENDMENTS SUGGESTED TO "ELIMINATE ALL CONFUSION IN
REGARD TO THE FUNCTIONS TO BE EXERCISED BY THE COMMISSION AND BY THE
COURT,  ...  AND (TO) REMOVE THE MOST FUNDAMENTAL OBJECTIONS TO THE
BILL IN ITS PRESENT FORM."  FN15  NOTWITHSTANDING THE CRITICISM THE
BILL PASSED THE HOUSE WITH THE POWER LODGED IN THE COMMISSION, AS
ORIGINALLY PROPOSED.  WHEN THE HOUSE BILL FOR THE RELIEF OF DEBTORS
FN16  WAS REPORTED BY THE SENATE COMMITTEE, THE RAILROAD SECTION WAS
OMITTED.  BY A MOTION FROM THE FLOOR IT WAS REINSTATED BUT IN A CHANGED
FORM.  THE SENATE ADOPTED CHANGES DESIGNED TO GIVE MORE POWER TO THE
COURT.  76 CONG. REC. 4907, 5104-34.  HEARINGS BEFORE THE COURT WERE
PROVIDED.  THE JUDGE, IT WAS ADDED, WAS TO BE "SATISFIED THAT (1) THE
APPROVED PLAN COMPLIES WITH THE PROVISIONS OF SUBSECTION (B) OF THIS
ANY CLASS OF CREDITORS OR STOCKHOLDERS."  N17  THESE AMENDMENTS GIVING
CONCURRENT POWERS TO THE COURT WERE ADOPTED BY THE SENATE AND ACCEPTED
BY THE HOUSE AND THE BILL BECAME THE ACT OF MARCH 3, 1933, 47 STAT.
1474. 

FOLLOWING THE RECOMMENDATION OF THE PRESIDENT IN HIS MESSAGE OF JUNE
7, 1935, THE CONGRESS ADOPTED AMENDMENTS TO THE 1933 ACT WHICH WERE IN
LINE WITH THE SUGGESTIONS OF THE FEDERAL COORDINATOR OF TRANSPORTATION
AND THE COMMISSION.  FN18  WHILE THE MOST IMPORTANT AMENDMENT WAS TO
FURNISH MEANS TO AVOID THE OBSTRUCTION OF DISSATISFIED CLASSES OF
CREDITORS OR STOCKHOLDERS BY MAKING A FAIR AND EQUITABLE PLAN EFFECTIVE
OVER DISSENTERS, THE REQUIREMENT OF COORDINATED ACTION BY COMMISSION
AND COURT WAS RETAINED. 

THE SENATE REPORT, NO. 1336, 74TH CONG., 1ST SESS., CONCLUDED: 

"THE AMENDMENTS TO SECTION 77 LEAVE UNIMPAIRED THE POWER AND THE DUTY
OF THE COMMISSION AND THE COURTS TO DEAL WITH THE MOST IMPORTANT
FEATURE OF ALL REORGANIZATION PLANS, THAT OF THE CONTROL OF THE
REORGANIZED COMPANY; AND SIMILARLY THE COMMISSION AND COURTS WILL
CONTINUE TO HAVE THE POWER AND AUTHORITY OF MAKING THAT THOROUGH
INVESTIGATION WHICH IS NECESSARY TO ASSURE SOUND AND RELIABLE CONTROL
FOR BANKRUPT COMPANIES WHEN THEY EMERGE FROM THE COURTS, IN PLACE OF
THE TYPE OF CONTROL UNDER WHICH SOME RAILROADS HAVE BEEN WRECKED." 

UNDER THE PRESENT STATUTE THE DISTRICT COURT HAS DEFINITE
RESPONSIBILITY IN REORGANIZATION.  SUBSECTION (E).  AFTER THE
CERTIFICATION FROM THE COMMISSION IS FILED, A HEARING IS AUTHORIZED AT
WHICH ALL INTERESTED PARTIES MAY APPEAR.  ADDITIONAL EVIDENCE OF
OPPONENTS AND PROPONENTS OF THE PLAN MAY BE RECEIVED UPON "DETAILED AND
SPECIFIC OBJECTIONS IN WRITING TO THE PLAN AND THEIR CLAIMS FOR
EQUITABLE TREATMENT."  THE JUDGE SHALL THEN "APPROVE THE PLAN IF
SATISFIED THAT:  (1) IT COMPLIES WITH THE PROVISIONS OF SUBSECTION (B)
OF THIS SECTION, IS FAIR AND EQUITABLE, AFFORDS DUE RECOGNITION TO THE
RIGHTS OF EACH CLASS OF CREDITORS AND STOCKHOLDERS, DOES NOT
DISCRIMINATE UNFAIRLY IN FAVOR OF ANY CLASS OF CREDITORS OR
STOCKHOLDERS, AND WILL CONFORM TO THE REQUIREMENTS OF THE LAW OF THE
LAND REGARDING THE PARTICIPATION OF THE VARIOUS CLASSES OF CREDITORS
AND STOCKHOLDERS;" AND IF SATISFIED AS TO FEES, COSTS AND ALLOWANCES. 
IF THE PLAN IS DISAPPROVED, THE PROCEEDINGS MAY BE DISMISSED OR
REFERRED BACK TO THE COMMISSION FOR FURTHER CONSIDERATION.  ON APPROVAL
BY THE JUDGE THE PLAN IS RETURNED TO THE COMMISSION FOR SUBMISSION TO
STOCKHOLDERS AND CREDITORS FOR THEIR APPROVAL.  SUBMISSION TO CLASSES
OF STOCKHOLDERS OR CREDITORS MAY BE OMITTED ON A FINDING BY THE
COMMISSION, AFFIRMED BY THE JUDGE, OF A LACK OF VALUE IN THE EQUITY OF
THE STOCKHOLDERS OR THE CLAIMS OF THE CREDITORS.  ON CERTIFICATION OF
THE RESULTS OF THE SUBMISSION THE JUDGE SHALL CONFIRM THE PLAN FINALLY,
IF SATISFIED THE REQUISITE APPROVAL HAS BEEN OBTAINED OR IS EXCUSED FOR
REASONS STATED IN SUBSECTION (E).  THE JUDGE IS NOT EMPOWERED TO
APPROVE OR CONFIRM ANY PLAN UNTIL IT HAS FIRST BEEN APPROVED BY THE
COMMISSION AND CERTIFIED TO THE COURT.  SUBSECTION (D). 

THE POWER OF THE COURT DOES NOT EXTEND TO PARTICIPATION IN ALL
RESPONSIBILITIES OF THE COMMISSION.  VALUATION IS A FUNCTION LIMITED TO
THE COMMISSION, WITHOUT THE NECESSITY OF APPROVAL BY THE COURT.  THE
FIRST SENTENCE OF THE LAST PARAGRAPH OF SUBSECTION (E) PROVIDES: 

"IF IT SHALL BE NECESSARY TO DETERMINE THE VALUE OF ANY PROPERTY FOR
ANY PURPOSE UNDER THIS SECTION, THE COMMISSION SHALL DETERMINE SUCH
VALUE AND CERTIFY THE SAME TO THE COURT IN ITS REPORT ON THE PLAN." 
THE FUNCTION OF VALUATION THUS LEFT TO THE COMMISSION IS THE
DETERMINATION OF THE WORTH OF THE PROPERTY VALUED, WHETHER STATED IN
DOLLARS, IN SECURITIES OR OTHERWISE.  ONE OF THE PRIMARY OBJECTS OF THE
BILL WAS THE ELIMINATION OF OBSTRUCTIVE LITIGATION ON THE ISSUE OF
VALUATION  FN19 AND THE FORM FINALLY CHOSEN APPROACHED AS NEAR TO THAT
POSITION AS SEEMED TO THE DRAFTSMEN LEGALLY POSSIBLE.  JUDICIAL
REEXAMINATION WAS NOT CONSIDERED DESIRABLE.  FN20  NONE OF THE FINDINGS
REQUIRED OF THE JUDGE UNDER SUBSECTION (E) RELATE SPECIFICALLY TO
VALUATION.  CONGRESS APPARENTLY INTENDED TO LEAVE THE DETERMINATION OF
VALUATION "OF ANY PROPERTY FOR ANY PURPOSE UNDER THIS SECTION" TO THE
COMMISSION.  FN21  THE LANGUAGE CHOSEN LEAVES TO THE COMMISSION, WE
THINK, THE DETERMINATION OF VALUE WITHOUT THE NECESSITY OF A
REEXAMINATION BY THE COURT, WHEN THAT DETERMINATION IS REACHED WITH
MATERIAL EVIDENCE TO SUPPORT THE CONCLUSION AND IN ACCORDANCE WITH
LEGAL STANDARDS.  IT LEAVES OPEN THE QUESTION OF WHETHER IN REACHING
THE RESULT THE COMMISSION HAD APPLIED IMPROPER STATUTORY STANDARDS. 
THIS LATTER POINT IS DISCUSSED UNDER THE HEADING OF METHOD OF VALUATION
IN THIS OPINION, P. 477, INFRA, WHERE THIS PLAN IS REVIEWED AND UPHELD
IN THIS RESPECT. 

ANOTHER RESTRICTION ON COURT ACTION IS THAT THE DETERMINATION AS TO
WHETHER THE PLAN IS "COMPATIBLE WITH THE PUBLIC INTEREST" RESTS, AS
VALUATION DOES, WITH THE COMMISSION.  SUBSECTION (D).  WITHOUT
ATTEMPTING TO FORECAST THE LIMITS OF THE PHRASE AS USED IN THE SETTING
OF THIS STATUTE, IT IS SUFFICIENT IN THIS CASE TO DETERMINE, AS WE DO,
THAT IT INCLUDES THE AMOUNT AND CHARACTER OF THE CAPITALIZATION OF THE
REORGANIZED CORPORATION.  CF. NEW YORK CENTRAL SECURITIES CO. V. UNITED
STATES, 287 U.S. 12, 24.  LEAVING THE PROBLEMS OF PUBLIC INTEREST TO
THE COMMISSION WAS NOT A DEPARTURE FROM PRECEDENT.  THE PHRASE HAD BEEN
EMPLOYED LONG BEFORE IN THE GRANT OF AUTHORITY TO SUPERVISE THE ISSUE
OF SECURITIES.  SEC. 20A, INTERSTATE COMMERCE ACT.  FN22 

THE PROBLEMS OF CAPITALIZATION ARE OF PUBLIC INTEREST.  THE CORPORATE
FORM IS UNIVERSALLY USED FOR THE BUSINESS OF RAILROADING.  RAILROAD
SECURITIES ARE WIDELY DISTRIBUTED IN INVESTMENT PORTFOLIOS AND AMONG
INDIVIDUAL SAVERS.  THE REASONABLE EARNING POWER OF SECURITIES, THE
TERMS AND CONDITIONS OF THE RESPECTIVE ISSUES, AND THE SOUNDNESS OF THE
AGGREGATE CAPITALIZATION AFFECT THE PUBLIC INTEREST IMMEDIATELY AND
DIRECTLY.  CAPITALIZATION IS AN ESSENTIAL FACTOR BEARING ON AN
EFFICIENT TRANSPORTATION SYSTEM FOR SHIPPER, INVESTOR AND CONSUMER. 
THE DEVELOPMENT OF THE CAPITALIZATION OF THE REORGANIZED COMPANY WHICH
IS ENTRUSTED SOLELY TO THE COMMISSION UNDER THE REQUIREMENT THAT THE
PLAN BE COMPATIBLE WITH THE PUBLIC INTEREST IS THAT RELATING TO THE
TOTAL AMOUNT OF ISSUABLE SECURITIES AND THE QUALITY OF THE SECURITIES
TO BE ISSUED.  SO LONG AS LEGAL STANDARDS ARE FOLLOWED, THE JUDGMENT OF
THE COMMISSION ON SUCH CAPITALIZATION IS FINAL. 

THUS LIMITED, THE DISTRICT COURT ACTS CONCERNING THE PLANS ONLY UPON
THE ISSUES SPECIFICALLY DELEGATED BY SUBSECTION (E).  AS TO THESE, ITS
POWERS ARE NEGATIVE.  IT MAY VETO THE PLAN IN ITS ENTIRETY BUT MAY
IMPROVE IT ONLY BY SUGGESTION.  IT BECOMES A NECESSARY AND IMPORTANT
FACTOR IN RAILROAD REORGANIZATION.  THESE REORGANIZATIONS MAY BE
ATTAINED ONLY THROUGH PROPERLY COORDINATED ACTION BETWEEN THE
COMMISSION AND THE COURT.  FN23  IN THIS CASE, WE ARE OF THE VIEW THAT
THE DISTRICT COURT PERFORMED ITS REQUIRED FUNCTIONS IN ACCORDANCE WITH
THE REQUIREMENTS OF THE STATUTE.  SEE PAGE 466, SUPRA. 

AMOUNT AND CHARACTER OF CAPITALIZATION.  WHILE THE PUBLIC INTEREST
PHASE OF CAPITALIZATION IS NOT TO BE INDEPENDENTLY PASSED UPON BY THE
COURT, THE COURT DOES HAVE STATUTORY AUTHORITY TO REVIEW FOR OBEDIENCE
TO LEGAL STANDARDS N24.  PETITIONERS IN SEEKING CERTIORARI AND NOW ON
THE MERITS CONCEDE THAT THE EXCLUSIVE POWER IN THE COMMISSION TO PASS
UPON THE AMOUNT AND CHARACTER OF CAPITALIZATION IS SUBJECT TO REVIEW
FOR "ARBITRARY EXERCISE."  THE RESPONDENT A.C. JAMES COMPANY MAKES THE
POINT THAT THE RESTRICTION OF THE AMOUNT OF CAPITALIZATION TO AN
AGGREGATE LIMITED BY THE REASONABLE PROBABILITY OF A FAIR RETURN
DEPRIVES THOSE CREDITORS AND STOCKHOLDERS WHO ARE BARRED AS HOLDING
CLAIMS WITHOUT VALUE, OF THEIR PROPERTY INTEREST IN THE DEBTOR WITHOUT
DUE PROCESS AND CONTRARY TO THE MANDATE OF SEC. 77.  THE COMMISSION
THOUGHT THAT THE PUBLIC INTEREST REQUIRED A CAPITAL STRUCTURE WHICH
WOULD GIVE THE REORGANIZED COMPANY "A REASONABLE OPPORTUNITY TO
FUNCTION EFFICIENTLY AND CONTINUOUSLY" AND THAT "PROPOSED CHARGES,
WHETHER FIXED OR CONTINGENT, SHALL BE WITHIN ITS PROBABLE EARNING
POWER."  230 I.C.C. AT 87. 

ASSUMING AT THIS POINT THAT THE COMMISSION'S VALUATION IS SOUND AND
REACHED BY ALLOWABLE METHODS, A MATTER DISCUSSED LATER IN THIS OPINION
AT PAGE 477, WE HOLD THAT THE ELIMINATION OF THE CLAIMS OF STOCKHOLDERS
AND CREDITORS WHICH ARE VALUELESS FROM PARTICIPATION IN THE
REORGANIZATION IS IN ACCORDANCE WITH VALID PROVISIONS OF SEC. 77(E). 
FN25  ACTUAL BANKRUPTCY MEANS A LOSS TO SOME INVESTORS.  SUBSECTION (E)
RECOGNIZES THIS INEVITABLE RESULT AND PROVIDES A METHOD FOR THEIR
ELIMINATION FROM THE REORGANIZATION PROCEEDINGS.  AFTER ALL OF THE
REASONABLE VALUE HAD BEEN EXHAUSTED BY SENIOR SECURITIES, WARRANTS
MIGHT HAVE BEEN AUTHORIZED FOR OTHERWISE UNSATISFIED CLAIMS.  SUCH
WARRANTS WOULD REPRESENT MERELY THE POSSIBILITY OF RECOUPMENT, JUST AS
THE EQUITY OF REDEMPTION IN JUDICIAL SALES.  BUT THERE IS NO
CONSTITUTIONAL OR STATUTORY REQUIREMENT THAT SUCH IMMEDIATELY VALUELESS
PAPER SHOULD BE ISSUED.  A MERE POSSIBILITY THAT TRAFFIC MIGHT BE FOUND
TO THE LIMIT OF THE PHYSICAL CAPACITY OF THE SYSTEM IS NOT THE KIND OF
EARNING POWER WHICH JUSTIFIES THE ISSUE OF SECURITIES BASED UPON SUCH A
POSSIBILITY.  WHATEVER MAY BE THE LIMITS OF THE POWER OF THE COMMISSION
TO FIND CLAIMS WORTHLESS, THE PRESENT PLAN MAY NOT BE SUCCESSFULLY
ATTACKED ON THE GROUND THAT CONGRESS IS POWERLESS TO AUTHORIZE IN
BANKRUPTCY THE ELIMINATION OF CLAIMS WITHOUT VALUE.  IN RE 620 CHURCH
ST. CORP., 299 U.S. 24. 

NOR DO WE FIND VIOLATION OF LEGAL STANDARDS IN THE REQUIREMENT BY THE
COMMISSION FOR A CAPITAL FUND OR THE ISSUE OF STOCK TO FORMER HOLDERS
OF INTEREST-BEARING SECURITIES.  THE COMMISSION IS CHARGED WITH THE
DEVELOPMENT OF A PLAN WHICH MUST BALANCE AND CHOOSE BETWEEN PUBLIC AND
PRIVATE INTERESTS.  THE EVIDENCE BEFORE THE COMMISSION GAVE GROUNDS FOR
THE FINDING OF A NORMAL REQUIREMENT OF AN ANNUAL $500,000 FUND FOR
IMPROVEMENTS.  IT IS REASONABLE TO AGREE WITH THE COMMISSION THAT A
SUBSTANTIAL SHARE OF THE SECURITIES SHOULD BE FIXED STOCK INVESTMENTS
RATHER THAN THAT THE ENTIRE AGGREGATE AMOUNT, JUSTIFIED BY ESTIMATES OF
PROBABLE EARNINGS, SHOULD BE IN INTERESTBEARING LOANS, WHICH ULTIMATELY
MUST BE REDEEMED.  STOCK WHICH HAS NO RETIREMENT PROVISIONS IS THE
BACKBONE OF A CORPORATE STRUCTURE. 

METHOD OF VALUATION.  WHILE BY THE TERMS OF THE STATUTE THE VALUATION
OF THE PROPERTY IS LEFT TO THE COMMISSION, WITHOUT PARTICIPATION BY THE
COURT, THIS VALUATION MUST BE MADE IN ACCORDANCE WITH THE DIRECTION OF
THE STATUTE AND AS TO THAT VALUATION IS SUBJECT TO JUDICIAL REVIEW. 
THIS REVIEW IS LIMITED IN CHARACTER BY THE DIRECTION OF SUBSECTION (E)
THAT VALUATION SHALL BE DETERMINED BY THE COMMISSION.  THE DISTRICT
COURT MAY REVIEW TO DETERMINE WHETHER THE COMMISSION HAS FOLLOWED THE
STATUTORY MANDATES OF SUBSECTION (E).  SUBSECTION (E) REQUIRES
VALUATIONS BY THE COMMISSION TO BE "DETERMINED ON A BASIS WHICH WILL
GIVE DUE CONSIDERATION TO THE EARNING POWER OF THE PROPERTY, PAST,
PRESENT, AND PROSPECTIVE, AND ALL OTHER RELEVANT FACTS.  IN DETERMINING
SUCH VALUE ONLY SUCH EFFECT SHALL BE GIVEN TO THE PRESENT COST OF
REPRODUCTION NEW AND LESS DEPRECIATION AND ORIGINAL COST OF THE
PROPERTY, AND THE ACTUAL INVESTMENT THEREIN, AS MAY BE REQUIRED UNDER
THE LAW OF THE LAND, IN LIGHT OF ITS EARNING POWER AND ALL OTHER
RELEVANT FACTS."  THUS, WHILE JUDICIAL REVIEW DOES NOT INVOLVE AN
INDEPENDENT EXAMINATION INTO VALUATION, IT DOES REQUIRE THAT THE COURT
SHALL BE SATISFIED, UPON THE RECORD BEFORE THE COMMISSION, WITH SUCH
ADDITIONAL EVIDENCE AS MAY BE PERTINENT TO THE OBJECTIONS TO THE
COMMISSION'S FINDING OF VALUE, THAT THE STATUTORY REQUIREMENTS HAVE
BEEN FOLLOWED. 

AN EXAMPLE OF THIS TYPE OF REVIEW OCCURS IN THIS RECORD.  THE IRVING
TRUST COMPANY, AS REFUNDING MORTGAGE TRUSTEE IN NOS. 7 AND 8, AND THE
A.C. JAMES COMPANY OBJECT TO THE FINDING OF THE COMMISSION THAT THE
BONDS, $270,000, AND STOCK, $360,834, PAR VALUE, OF THE CENTRAL
CALIFORNIA TRACTION COMPANY AND $465,300, PAR VALUE, OF THE CAPITAL
STOCK OF THE ALAMEDA BELT LINE, PLEDGED ONLY UNDER THE REFUNDING
MORTGAGE, HAD NO MATERIAL VALUE.  233 I.C.C. 414-416.  THESE SECURITIES
WERE OWNED SOLELY BY THE DEBTOR BUT IN THE CASE OF THE FIRST COMPANY
REPRESENTED A ONE-THIRD INTEREST IN THE TRACTION COMPANY AND IN THE
CASE OF THE SECOND A ONE-HALF INTEREST IN THE BELT LINE.  COMPETING
TRANSCONTINENTAL RAILROADS OWNED THE OTHER INTERESTS.  THE RESPECTIVE
OWNERSHIPS WERE ACQUIRED TO PUT THE DEBTOR IN A POSITION TO OBTAIN ITS
FAIR SHARE OF THE BUSINESS FROM AND TO THESE FEEDER LINES.  THE FACTS
BEFORE THE COMMISSION SHOWED THAT, OVER THE PRECEDING DECADE, THE
DEBTOR HAD CONTRIBUTED ANNUALLY SUBSTANTIAL SUMS TO MEET THE DEFICITS
OF EACH OF THE COMPANIES.  IT WAS SHOWN IN THE DISTRICT COURT THAT EACH
OF THE COMPANIES WERE USEFUL AUXILIARIES TO THE BUSINESS OF THE
DEBTOR.  HOWEVER, VALUATION IS ESSENTIALLY A PROBLEM FOR THE
COMMISSION.  THERE IS MATERIAL EVIDENCE TO SUPPORT ITS CONCLUSION OF
LACK OF VALUE AND ITS CONCLUSION HAS BEEN ACCEPTED BY THE DISTRICT
COURT.  THIS IS SUFFICIENT. 

IN THE PRECEDING SECTION OF THIS OPINION, WE DISCUSSED THE VALIDITY
OF THE PROVISION OF SUBSECTION (E) WHICH PERMITS THE ELIMINATION FROM
THE REORGANIZATION OF CLAIMANTS WITHOUT EQUITY IN THE DEBTOR'S
PROPERTIES.  THIS PROVISION NEEDS ALSO TO BE CONSIDERED FROM THE
STANDPOINT OF STATUTORY REVIEW OF THE COMMISSION'S ACTION.  AS TO BOTH
STOCKHOLDERS AND CREDITORS THE SECTION REQUIRES THAT A PLAN WHICH
ALLOWS NOTHING TO THEIR CLAIMS, NEED NOT BE SUBMITTED TO THEM, IF THE
WORTHLESSNESS OF THEIR CLAIMS IS FOUND BY THE COMMISSION, "AND THE
JUDGE SHALL HAVE AFFIRMED THE FINDING."  AS TO CERTAIN CREDITORS AND
ALL STOCKHOLDERS IN THIS CASE, BOTH EVENTS TOOK PLACE.  THE SPECIFICITY
OF THE DIRECTION FOR REEXAMINATION OF THE COMMISSION'S ACTION POINTS TO
A WIDER SCOPE OF REVIEW THAN AN INQUIRY AS TO WHETHER STATUTORY
STANDARDS FOR VALUATION HAVE BEEN FOLLOWED.  IT IS OBVIOUS THAT THE
VALUATION OF THE WHOLE OF A DEBTOR'S PROPERTY, IN A SIMPLE CASE WITHOUT
CONFLICTING OR DIVISIONAL LIENS, WILL MARK, BY A MERE MATHEMATICAL
COMPUTATION AS TO PRIORITIES, THE CLAIMANTS WHO MUST BE FOUND TO BE
WITHOUT EQUITY IN WHOLE OR IN PART.  BUT WE THINK THE REQUIREMENT OF
AFFIRMATION OF THE EXCLUSION OF CLAIMANTS DOES NOT REQUIRE AN
INDEPENDENT APPRAISAL OF THE VALUATION WHICH ORDAINED THEIR
ELIMINATION.  THE COURT PROPERLY AFFIRMS THE COMMISSION, WHEN IT FINDS
NO LEGAL OBJECTION TO THE COMMISSION'S USE OF ITS OWN VALUATION TO
DETERMINE WHETHER PARTICULAR CLAIMANTS ARE ENTITLED TO PARTICIPATE IN
THE REORGANIZATION.  FOR EXAMPLE, THERE MAY ARISE CONTROVERSIES OVER
THE PRIORITY OR THE VALIDITY OF CLAIMS.  A COMMISSION FINDING INVOLVING
SUCH PROBLEMS WOULD REQUIRE AN INDEPENDENT EXAMINATION AND AN
AFFIRMATION BY THE COURT. 

THE CIRCUIT COURT OF APPEALS FOUND ERROR IN THE COMMISSION'S FAILURE
TO MAKE DEFINITE VALUATIONS.  IT WAS OF THE VIEW THAT IT WAS NECESSARY
TO DETERMINE THE VALUES OF THE RESPECTIVE CLAIMS IN ORDER TO HAVE A
BASIS FOR THE DISTRIBUTION OF NEW ASSETS.  FN26  THIS POSITION
RESPONDENTS DEFEND, AT LEAST TO THE POINT OF SAYING THAT CLAIMS MAY NOT
BE FORECLOSED OR NEW SECURITIES ALLOCATED WITHOUT A DETERMINATION OF
THE VALUE OF THE PROPERTY AND THE ASSETS SUBJECT TO SECURED CLAIMS, AS
WELL AS EARNING POWER.  THE COMMISSION CONSIDERED THE DEBTOR'S
INVESTMENT IN ITS PROPERTY, 230 I.C.C. 61, 65, ITS VALUE FOR RATE
MAKING PURPOSES, ID., 76, AND THE RECORD OF ITS EARNINGS, ID., 73 ET
SEQ., TOGETHER WITH ITS VOLUME OF TRAFFIC AND OTHER PERTINENT DATA.  IT
CONCLUDED THAT THESE FACTORS WOULD JUSTIFY FIXED AND CONTINGENT CHARGES
OF NO MORE THAN TWO MILLION DOLLARS ANNUALLY.  IN ADDITION, THE
COMMISSION'S PLAN PROVIDED FOR FIVE PER CENT PREFERRED STOCK AND COMMON
STOCK IN SUCH AMOUNTS THAT IT WOULD REQUIRE AGGREGATE AVAILABLE ANNUAL
EARNINGS OF A LITTLE MORE THAN FOUR AND A HALF MILLION DOLLARS TO
PERMIT PAYMENT OF A THREE PER CENT DIVIDEND.  WITHOUT APPRAISING THE
EFFECT OF INCOME TAXATION ON THE REMAINDER OF EARNINGS AVAILABLE AND
PARTLY USED FOR INTEREST, IT IS SIGNIFICANT THAT ONLY THREE YEARS IN
THE PERIOD FROM 1922 TO 1940 SHOWED EARNINGS AVAILABLE FOR INTEREST OF
OVER FOUR MILLION.  SEE PAGE 457, SUPRA.  WITH THIS DATA, THE
COMMISSION DETERMINED THE NEW CAPITAL STRUCTURE.  SEE PAGE 461, SUPRA.
TAKING THE LOWEST VALUE FOR THE NO PAR SUGGESTED BY THE COMMISSION, $57
PER SHARE, NOTE 6, SUPRA, THERE IS A TOTAL VALUE OF SECURITIES OF
EIGHTY-FOUR MILLION DOLLARS PLUS.  THE COMMISSION WAS THUS OF THE VIEW
THAT THE VALUE OF THE PROPERTY FOR PURPOSES OF REORGANIZATION WAS
AROUND THIS FIGURE. 

THE COMMISSION WAS FAMILIAR WITH RAILROAD SECURITIES.  CONTROL OVER
THEIR ISSUE BY INTERSTATE CARRIERS HAS BEEN FOR MANY YEARS IN THE
COMMISSION.  SEC. 20(A), INTERSTATE COMMERCE ACT.  THE STANDARDS FOR
ISSUANCE UNDER SEC. 20(A) INCLUDE "COMPATIBLE WITH THE PUBLIC
INTEREST."  CF. NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287
U.S. 12, 24.  THE PROVISIONS OF THIS SEC. 20(A) WERE CARRIED INTO AND
MADE A PART OF THE REORGANIZATION SECTION BY SUBSECTIONS (C)(3) AND
(F).  TO CREATE SECURITIES WITH VOTING POWER, IN ADDITION TO THOSE
AUTHORIZED, MIGHT WELL DIVORCE CONTROL FROM REAL OWNERSHIP.  SOUND
RAILROAD REORGANIZATION INVOLVES MORE THAN THE PARTITIONING OF ASSETS
AMONG CREDITORS WITH VALUABLE CLAIMS AND THE DISTRIBUTION TO CREDITORS
AND STOCKHOLDERS WITHOUT EQUITY OF SO-CALLED SECURITIES REPRESENTING
CHANCES FOR THEN UNFORESEEABLE PROFITS.  THE INTEREST OF THE PUBLIC IN
AN ADEQUATE TRANSPORTATION SERVICE MUST RECEIVE CONSIDERATION.  NEW
ENGLAND DIVISIONS CASE, 261 U.S. 184, 189.  IMPORTANT PROPERTY RIGHTS
MUST BE BALANCED AGAINST THE NEED OF SOUND FINANCING.  CONSEQUENTLY,
THE COMMISSION LIMITED THE FIXED AND CONTINGENT CHARGES INVOLVING THE
DEBT WHICH MUST ULTIMATELY BE PAID, TO TWO MILLION ANNUALLY, WITH STOCK
REPRESENTING THE POSSIBILITY OF ADDITIONAL EARNINGS.  SEE NOTE 5,
SUPRA, 230 I.C.C. 61, 92.    IT IS SAID THAT CONSOLIDATED ROCK CO. V.
DU BOIS, 312 U.S. 510, FORBIDS THE SUBSTITUTION OF AN APPROVED CAPITAL
STRUCTURE FOR DETERMINATIONS OF VALUE.  IN THAT CASE THERE WAS NO
FINDING OF THE VALUES OF THE PROPERTY INVOLVED AND THIS COURT SAID:
"ABSENT THE REQUISITE VALUATION DATA, THE COURT WAS IN NO POSITION TO
EXERCISE THE 'INFORMED, INDEPENDENT JUDGMENT' (NATIONAL SURETY CO. V.
CORIELL, 289 U.S. 426, 436) WHICH APPRAISAL OF THE FAIRNESS OF A PLAN
OF REORGANIZATION ENTAILS," PAGE 520.  THE DISTRICT COURT, IT BEING A
SEC. 77B REORGANIZATION, WAS REQUIRED TO MAKE THE REQUISITE
VALUATIONS.  THE REQUIREMENTS FOR VALUATION ARE THE SAME IN A SEC. 77B
PROCEEDING AS IN A RAILROAD REORGANIZATION.  THERE IS NOTHING, HOWEVER,
IN THE DU BOIS CASE TO INDICATE THAT DOLLAR VALUATIONS OF THE PROPERTY
OR CLAIMS ARE ESSENTIAL FOR RECAPITALIZATION OR THE DISTRIBUTIONS OF
SECURITIES IN REORGANIZATIONS.  THE DEFECT IN DU BOIS WAS NOT THE
FAILURE TO FIND DOLLAR VALUES BUT THE FAILURE TO FIND THE WORTH OF THE
SECURITY BEHIND INDEPENDENT MORTGAGES ON DISTINCT PROPERTIES AND OF
ASSETS SUBJECT TO THE CLAIMS OF PARTICULAR GROUPS OF CREDITORS.  SUCH
FINDINGS WERE REQUIRED IN THAT CASE BECAUSE THE COURT WAS DEALING WITH
A PARENT AND TWO SUBSIDIARIES WITH INTER-COMPANY ACCOUNTS.  EACH
SUBSIDIARY ENTITY HAD ITS OWN CREDITORS.  THE SYSTEM WAS A UNIFIED
OPERATION AND WE HELD THE CLAIMS AGAINST THE SUBSIDIARIES HAD PRIORITY
OVER STOCKHOLDERS EQUITY IN THE PARENT, P. 523.  WITHOUT A SEPARATE
VALUATION OF ASSETS, IT WAS IMPOSSIBLE TO TELL WHAT ASSETS OF THE
PARENT WERE LEFT TO FORM THE BASIS FOR THE SECURITIES DISTRIBUTED TO
THE PARENT'S STOCKHOLDERS.  IN DU BOIS, AS HERE, THE MANNER OF REACHING
THAT VALUATION, SO LONG AS IT COMPLIES WITH THE STATUTORY STANDARDS, IS
NOT IMPORTANT.  THERE ARE SUBSIDIARIES HERE BUT THERE ARE NO CLAIMANTS
OF THE SUBSIDIARIES LOOKING TO THE PARENT.  THE AGGREGATE OF THE
AUTHORIZED SECURITIES IN THE PRESENT CASE IS TO BE EQUITABLY
DISTRIBUTED AMONG CLAIMANTS AGAINST A SINGLE CORPORATION.  FINDINGS
WERE MADE AS TO THE PROPERTY COVERED BY THE DIFFERENT MORTGAGES OF THE
DEBTOR AND SECURITIES ALLOCATED ON THE BASIS OF THAT FINDING.  230
I.C.C. 61, 98, 99, 100, 101; 233 I.C.C. 409, 414.  UNDER SUCH
CIRCUMSTANCES THE LACK OF A VALUATION IN DOLLARS IS IMMATERIAL.  THE
IMPORTANT ELEMENT IS THE ALLOCATION OF THE SECURITIES SO AS TO PRESERVE
TO CREDITORS THE ADVANTAGES OF THEIR RESPECTIVE PRIORITIES.  THAT IS TO
SAY, SENIOR CLAIMS FIRST RECEIVE SECURITIES OF A WORTH SUFFICIENT TO
COVER THEIR FACE AND INTEREST BEFORE JUNIOR CLAIMS RECEIVE ANYTHING. 
CONSEQUENTLY, WE ARE OF THE OPINION THAT THE DETERMINATION BY THE
COMMISSION OF THE AGGREGATE AMOUNT OF SECURITIES WHICH MAY BE ISSUED
AGAINST THE SYSTEM IS IN SUBSTANCE A FINDING OF TOTAL VALUE FOR
REORGANIZATION PURPOSES.  IN VIEW OF THE FACTORS OF VALUE CONSIDERED
AND THE OPPORTUNITY GIVEN ALL PARTIES BEFORE THE COMMISSION AND THE
COURT TO PRESENT ALL DESIRED EVIDENCE, THE COMMISSION'S DETERMINATION
STANDS UPON A FIRM BASIS.  THERE IS NO MORE IMPORTANT ELEMENT IN THE
VALUATION OF COMMERCIAL PROPERTIES THAN EARNINGS.  FN27  NO OFFER WAS
MADE TO PRODUCE FIGURES UPON REPRODUCTION COST.  IT WAS NOT INCUMBENT
UPON THE COMMISSION TO DO SO.  THE COMMISSION'S CONCLUSIONS IMPRESS US
AS IN ACCORD WITH THE STATUTORY REQUIREMENTS. 

ALLOCATION OF SECURITIES.  THERE ARE TWO ISSUES COLLATERAL TO THE
COMMISSION'S VALUATION.  ONE RELATES TO ADVERSE CLAIMS OF PRIOR LIENS
BETWEEN THE HOLDERS OF BONDS SECURED ON THE ONE HAND BY THE GENERAL AND
REFUNDING MORTGAGE AND ON THE OTHER BY THE FIRST MORTGAGE.  SEE P. 489,
INFRA.  THE OTHER IS AS TO THE CORRECTNESS OF THE ALLOCATION OF
SECURITIES AMONG THE CREDITORS.  THIS LATTER ISSUE IS, OF COURSE,
AFFECTED BY THE FORMER.  IN CONSIDERING ALLOCATION, WE SHALL ASSUME AT
THIS POINT WHAT WE LATER FIND, THAT THE COMMISSION'S DETERMINATION AS
TO PRIORITIES IS CORRECT. 

A. THE ALLOCATION OF SECURITIES IS SHOWN ABOVE AT PAGE 461.  THE
TABLE SETS OUT THAT THE HOLDERS OF THE TRUSTEES' CERTIFICATES AND THE
5% FIRST MORTGAGES, ALTHOUGH THEY ARE SENIOR CREDITORS, RECEIVE LARGE
QUANTITIES OF PREFERRED AND COMMON STOCK, AS WELL AS NEW INCOME BONDS. 
THESE STOCKS ARE SECURITIES OF LOWER DIGNITY THAN THE INCOME BONDS. 
SOME OF THESE BONDS ON THE OTHER HAND GO TO CREDITORS SECURED BY THE
REFUNDING BONDS.  THIS IS BECAUSE THE REFUNDING BONDS HAVE A FIRST LIEN
ON SOME ASSETS.  233 I.C.C. 414.  BUT AT ANY RATE, UNDER THE ABSOLUTE
PRIORITY RULE OF THE BOYD CASE,  FN28  THE STRATIFICATION OF SECURITIES
ISSUED TO CREDITORS NEED NOT FOLLOW INVARIABLY THE RELATIVE PRIORITY OF
THE CLAIMANTS.  FN29  APROPOS OF A SOMEWHAT SIMILAR SITUATION, WE SAID
IN CONSOLIDATED ROCK CO. V. DU BOIS, 312 U.S. AT P. 530: 

"IF THE CREDITORS ARE ADEQUATELY COMPENSATED FOR THE LOSS OF THEIR
PRIOR CLAIMS, IT IS NOT MATERIAL OUT OF WHAT ASSETS THEY ARE PAID.  SO
LONG AS THEY RECEIVE FULL COMPENSATORY TREATMENT AND SO LONG AS EACH
GROUP SHARES IN THE SECURITIES OF THE WHOLE ENTERPRISE ON AN EQUITABLE
BASIS, THE REQUIREMENTS OF 'FAIR AND EQUITABLE' ARE SATISFIED." 

B. A POINT IS MADE AS TO THE TREATMENT OF THE RECONSTRUCTION FINANCE
CORPORATION'S CLAIMS IN THE DISTRIBUTION OF SECURITIES.  IT IS TO BE
NOTED, P. 455, SUPRA, THAT R.F.C. HAS TWO KINDS OF CLAIMS; ONE FOR
$10,000,000 UPON TRUSTEES' CERTIFICATES FOR MONEY ADVANCED TO THE
DEBTOR WHILE IN REORGANIZATION, THE OTHER FOR $2,963,000 COLLATERAL
NOTES, SECURED BY REFUNDING MORTGAGE BONDS.  THE RAILROAD CREDIT
CORPORATION AND THE A.C. JAMES COMPANY ARE HOLDERS OF SIMILAR
COLLATERAL NOTES.  THE AMOUNT OF BONDS, AS COMPARED WITH THE FACE
PRINCIPAL OF THE INDEBTEDNESS, VARIES.  THE R.F.C. HAS THE MOST
VALUABLE COLLATERAL PER DOLLAR OF INDEBTEDNESS.  TO RETIRE THE
TRUSTEES' CERTIFICATES AND TO RAISE NECESSARY NEW MONEY FOR THE
REORGANIZATION, THE COMMISSION DEEMED IT ESSENTIAL TO SELL $10,000,000
OF NEW FIRST MORTGAGE, 4% BONDS OF 1974.  TO ASSURE THIS, THE
COMMISSION PROVIDED: 

"THAT THE (R.F.C.)  PURCHASE THE BONDS AT PAR AND ACCRUED INTEREST
AND THAT, IN CONSIDERATION OF SUCH PURCHASE AND THE VALUE OF THE
COLLATERAL SECURING ITS CLAIM, THE FINANCE CORPORATION RECEIVE, FOR THE
SECURED NOTES OF THE DEBTOR HELD BY IT, TREATMENT EQUAL TO THAT
ACCORDED THE HOLDERS OF THE DEBTOR'S EXISTING FIRST-MORTGAGE BONDS." 

RESPONDENTS' OBJECTIONS TO THIS RULING ARE THAT THE COMMISSION ACTED
WITHOUT A FINDING OF THE VALUE OF THE NEW BONDS OR THEIR MARKETABILITY
AT PAR, THAT THE ADVANCEMENT OF THE R.F.C. SECURED CLAIM TO PRIORITY
OVER THE LIKE CLAIMS OF OTHER HOLDERS VIOLATES ABSOLUTE PRIORITY AND
THAT THERE IS NO FINDING OF REASONABLE EQUIVALENCE BETWEEN THE
PREFERENCE AND THE VALUE OF R.F.C.'S TAKING THE BONDS.  IT IS FURTHER
URGED THAT SECURITIES DISTRIBUTED TO THE R.F.C. TO REFINANCE THE
TRUSTEES' CERTIFICATES "SHOULD BE IN RECOGNITION OF THE PRIORITY
INHERENT IN THAT TRANSACTION" AND NOT IN CONNECTION WITH THE LOAN OF
R.F.C. TO THE DEBTOR, WHICH WAS MADE PRIOR TO REORGANIZATION
PROCEEDINGS. 

IT IS ADMITTED THAT THE $10,000,000 TRUSTEES' CERTIFICATES OR SUCH OF
THEM AS ARE PRESENTLY HELD BY THE R.F.C. ARE WORTH PAR. NO FINDING WAS
MADE BY THE COMMISSION OF THE VALUE OF THE NEW FIRSTS.  EVIDENCE BEFORE
THE COURT SHOWED THEM OF A VALUE BETWEEN 80 AND 90 AND OF POOR
MARKETABILITY ON ACCOUNT OF THE SYSTEM'S INTEREST RECORD.  THE COURT
MADE NO FINDING AS TO EITHER. 

IF THE R.F.C. WERE TREATED ON ITS NOTES, ON THE BASIS OF THE
PROPORTION OF BONDS HELD AS COLLATERAL, PRECISELY AS THE OTHER
NOTEHOLDERS, IT WOULD RECEIVE $414,175 OF INCOME MORTGAGE BONDS AND
$649,516 OF NEW PREFERRED STOCK, IN ADDITION TO ITS PROPORTION OF
COMMON STOCK.  233 I.C.C. 409, 416.  THIS PROPORTION OF COMMON STOCK
WOULD ALLOT A MUCH GREATER AGGREGATE OF COMMON STOCK TO THE R.F.C. THAN
IT OBTAINED BY THE ADJUSTMENT.  BY REASON OF ACCEPTING THE LESS
VALUABLE NEW FIRSTS IN LIEU OF CASH FOR ITS $10,000,000 TRUSTEES'
CERTIFICATES, IT WILL RECEIVE FOR THE PRINCIPAL OF ITS CLAIMS
$1,185,200 OF NEW INCOME BONDS AND $1,777,800 OF NEW PREFERRED STOCK. 
THE R.F.C. RECEIVED ITS UNPAID INTEREST IN NO PAR COMMON STOCK AT $57
PER SHARE.  THIS IS THE SAME ALLOCATION GIVEN CLAIMANTS WHO HOLD THE
OLD FIRSTS.  233 I.C.C. 409, 452.  THE OTHER NOTEHOLDERS RECEIVED A
LARGE PROPORTION OF THE PRINCIPAL OF THEIR CLAIMS IN NO PAR COMMON
STOCK AT $62 PER SHARE. 

IT IS DIFFICULT TO APPRAISE IN DOLLARS, AS OF THE DATE OF THE
COMMISSION APPROVAL, THE ADVANTAGE SECURED FOR THE PLAN BY THE
ARRANGEMENT WITH R.F.C.  IT IS EQUALLY DIFFICULT TO APPRAISE SIMILARLY
AS OF THAT DATE THE VALUE OF THE TRUSTEES' CERTIFICATES RELINQUISHED BY
THE R.F.C. OVER THE VALUE OF THE NEW FIRSTS OR TO DETERMINE HOW MUCH OF
ADDITIONAL WORTH THE R.F.C. OBTAINED.  THE ARGUMENT THAT THE COMMISSION
DOES NOT HAVE STATUTORY AUTHORITY TO PAY A CREDITOR, EVEN R.F.C., A
GOVERNMENT BANKING CORPORATION, FOR FURNISHING NEW MONEY HAS LITTLE
WEIGHT.  NOR DO WE SEE ANY REASON WHY ALL CLAIMS OF R.F.C. MAY NOT BE
CONSIDERED BY THE COMMISSION AS A SINGLE CLAIM.  CONSOLIDATED ROCK CO.
V. DU BOIS, 312 U.S. 510, 520.  THERE IS NOTHING TO LEAD US TO A
CONCLUSION THAT THE COMMISSION GAVE ANY ADVANTAGE TO R.F.C. FOR WHICH
FULL CONSIDERATION WAS NOT GIVEN.  NEW MONEY, THE COMMISSION SAID, "IS
ABSOLUTELY NECESSARY TO EFFECT A REORGANIZATION."  233 I.C.C. 409,
414.  WE HAVE NO REASON TO THINK THE COMMISSION ALLOWED MORE
COMPENSATION FOR THIS NEW MONEY TO R.F.C. THAN IT WOULD HAVE BEEN
COMPELLED TO ALLOW IN SOME WAY, BY INTEREST OR ADDITIONAL COLLATERAL OR
OTHERWISE TO ANOTHER SUPPLIER.  WE CONCLUDE THERE WAS NOTHING IN THE
DISCRETIONARY ACTION OF THE COMMISSION TO JUSTIFY ITS INVALIDATION. 

C. WE HAVE HELD HEREINBEFORE THAT VALUATION MIGHT BE MADE BY A METHOD
BASED PRIMARILY UPON EARNINGS AND THAT SO LONG AS CREDITORS RECEIVE
"FULL COMPENSATORY TREATMENT" THEIR PRIORITIES MAY BE REPRESENTED BY
SECURITIES OF DIFFERENT RANKS.  THE COMMISSION HAS MADE ALLOCATIONS OF
SECURITIES TO THE VARIOUS CREDITORS ACCORDING TO ITS JUDGMENT OF THE
WORTH OF THEIR CREDITOR POSITION OR PRIORITY IN RELATION TO THE TOTAL
WORTH OF THE PROPERTY.  IT HAS FOUND SPECIFICALLY THAT CERTAIN CLAIMS,
UNDER ITS VALUATIONS, HAVE NO VALUE.  WE HAVE POINTED OUT THE EVIDENCE
BEFORE THE COMMISSION ON THE QUESTION OF VALUE.  WE CANNOT SEE THAT
PUTTING DEFINITIVE DOLLAR VALUES ON THE WHOLE AND ON PARTS OF THIS
PROPERTY WOULD AID THE COMMISSION IN ITS WORK OF VALUATION OR THE
COURTS IN THEIR LIMITED REVIEW OF THE COMMISSION'S ACTION. 

BY ITS ORDER OF JUNE 21, 1939, SECTION P, 233 I.C.C. 441, 451,
CONFIRMED SEPTEMBER 19, 1939, 236 I.C.C. 1, THE COMMISSION AUTHORIZED
THE ISSUE OF AROUND EIGHTY-FOUR MILLION DOLLARS OF SECURITIES AGAINST
THE SYSTEM PROPERTY.  THIS TREATS THE EQUIPMENT TRUSTS AND THE
SECURITIES WITH A FACE VALUE AS WORTH PAR AND THE NO PAR COMMON STOCK
AT $57 PER SHARE FOR ALL RECOGNIZED CREDITORS EXCEPT THE RAILROAD
CREDIT CORPORATION AND THE A.C. JAMES COMPANY.  FOR DISTRIBUTION TO
THESE LATTER TWO CREDITORS, THE COMMON WAS VALUED AT $62. 

THE COMMISSION HAD BEFORE IT THE DATA PERTAINING TO PAST TRAFFIC,
RECEIPTS, EARNINGS AND OPERATING RATIOS, THE SYSTEM'S PHYSICAL
CONDITION AND PROSPECTS FOR BUSINESS.  THIS GAVE AN ADEQUATE BASIS FOR
AN INTELLIGENT ESTIMATE OF FUTURE INCOME LIKELY TO BE AVAILABLE TO MEET
ANNUAL CHARGES BEFORE DIVIDENDS AND THOSE DIVIDENDS THEMSELVES. 

FROM THIS INFORMATION, A CONCLUSION WAS REACHED AS TO THE DEBTS WHICH
COULD BE PAID IN THE ORDER OF THEIR FULL OR ABSOLUTE PRIORITY.  CASE V.
LOS ANGELES LUMBER CO., 308 U.S. 106, 117.  THE SECURED CLAIM OF A.C.
JAMES COMPANY COULD NOT BE SATISFIED IN FULL EVEN WITH THE MORE LIBERAL
VALUATION OF THE COMMON STOCK.  CLAIMS OF LESSER DIGNITY WERE
ELIMINATED.  THOSE ENTITLED TO PRIORITY OVER THE MORTGAGES, THAT IS,
CURRENT LIABILITIES, TRUSTEES OBLIGATIONS AND REORGANIZATION EXPENSES,
WERE TO BE SATISFIED BY CASH OR ASSUMED BY THE REORGANIZED COMPANY AS A
CHARGE ON ITS ASSETS SUPERIOR TO THE NEW SECURITIES.  233 I.C.C. 409,
452; 230 I.C.C. 61, 100, 101, 102.  THIS LEFT AS CREDITORS ONLY THE
HOLDERS OF THE OLD 5% FIRSTS, WITH AN UNDERLYING MORTGAGE ON THE
GREATER PART OF THE PROPERTY, THE R.F.C., THE RAILROAD CREDIT
CORPORATION AND THE A.C. JAMES COMPANY, THE LATTER THREE WITH REFUNDING
MORTGAGE BONDS AS COLLATERAL.  WE HAVE ALREADY EXPLAINED THE
ARRANGEMENT WHEREBY R.F.C. ACQUIRED THE STATUS OF A FIRST MORTGAGE
BONDHOLDER.  HERE IT IS SUFFICIENT TO SAY THAT AS DETERMINED BY THE
COMMISSION THE REFUNDINGS HAD A LIEN SUPERIOR TO THE FIRSTS ON SOME
ASSETS (233 I.C.C. 414), AND THE FIRST SUPERIORITY OVER THE REFUNDING
ON THE MAJOR PORTION.  230 I.C.C. 61, 97.  SEE INFRA, PRIORITIES OF
CONFLICTING LIENS.  WITH THE FOREGOING FACTS AND PRIMARY FINDINGS
BEFORE IT, THE COMMISSION DREW THE FINAL CONCLUSION AS TO ALLOCATION OF
SECURITIES AS SET OUT ON PAGE 461, SUPRA.  THIS ALLOCATION WAS BASED
UPON "THE RELATIVE PRIORITY, VALUE AND EQUITY OF THE VARIOUS CLAIMS." 
CF. 233 I.C.C. 414, 416, 417, 451 P. THE DISTRIBUTION AND REPORT SEEMS
IN ACCORD WITH THE REQUIREMENTS AND STANDARDS OF SUBSECTIONS (B), (D)
AND (E)(1), NOTE 7, SUPRA.    PRIORITIES OF CONFLICTING LIENS.  NO. 61
IS A PETITION BY THE IRVING TRUST COMPANY, TRUSTEE OF THE GENERAL AND
REFUNDING MORTGAGE, WHICH RAISES QUESTIONS OF THE PRIORITY BETWEEN THE
REFUNDING MORTGAGE AND THE FIRST MORTGAGE AS A LIEN ON THREE CLASSES OF
PROPERTY.  THESE ARE THE DEBTOR'S EQUITY IN CERTAIN ROLLING STOCK AND
EQUIPMENT ACQUIRED UNDER EQUIPMENT TRUSTS AND A LEASE, THE DEBTOR'S
INTEREST IN THE NORTHERN CALIFORNIA EXTENSION AND THE DEBTOR'S TITLE TO
CERTAIN "NON-CARRIER" PROPERTY.  THE COMMISSION'S PLAN IS PREDICATED ON
THE PRIORITY OF THE FIRST MORTGAGE AS A LIEN ON THESE PROPERTIES AND
THE COMMISSION ACCORDINGLY UNDERTOOK TENTATIVELY TO DETERMINE THE LEGAL
QUESTIONS INVOLVED.  THE COMMISSION HELD THAT THE FIRST MORTGAGE,
SENIOR TO THE REFUNDING MORTGAGE, SHOULD BE CONSIDERED TO BE A FIRST
LIEN ON THESE THREE CLASSES OF PROPERTY.  PETITIONER, THE IRVING TRUST
COMPANY, AS SUBSTITUTED TRUSTEE UNDER THE REFUNDING MORTGAGE, MADE
APPROPRIATE OBJECTIONS BUT THE RULING OF THE COMMISSION WAS ADOPTED BY
THE DISTRICT COURT.  IN REVERSING ON APPEAL, THE CIRCUIT COURT OF
APPEALS DID NOT PASS ON THE QUESTION THOUGH THE ISSUE WAS PRESENTED. 
THE POINT IS MADE HERE BY A PARTY PREVAILING BELOW, THE PETITIONER
IRVING TRUST COMPANY, ON BEHALF OF HOLDERS OF REFUNDING MORTGAGE
BONDS.  AS THE MATTER IS FULLY PRESENTED BY THE PETITION FOR CERTIORARI
AND ITS DECISION IS ESSENTIAL TO A COMPLETE REVIEW OF THE DISTRICT
COURT WE HAVE CONCLUDED TO CONSIDER THE QUESTION.  SEC. 240(A) JUDICIAL
CODE, 28 U.S.C. SEC. 347.  UNITED STATES V. BANKERS TRUST CO., 294 U.S.
240, 294, 295.  SUCH ACTION IS IN THE INTEREST OF EXPEDITION. 
CONTINENTAL BANK V. CHICAGO, R.I. & P. RY. CO., 294 U.S. 648, 685.  CF.
STORY PARCHMENT CO. V. PATERSON CO., 282 U.S. 555, 567; COLE V. RALPH,
252 U.S. 286, 290. 

THE ISSUES ARE THOSE OF CONSTRUCTION OF THE TERMS OF THE FIRST
MORTGAGE.  IN THE CASE OF THE FIRST TWO CLASSES OF PROPERTY, WHICH WERE
ACQUIRED AFTER 1916, THE YEAR OF THE MORTGAGE, THE QUESTION IS WHETHER
SUCH PROPERTY IS COVERED BY THE AFTER-ACQUIRED PROPERTY CLAUSES OF THAT
INDENTURE AND IN THE CASE OF THE THIRD CLASS, THE "NON-CARRIER" REAL
PROPERTY, THE QUESTION IS THE APPLICATION OF THE GRANTING CLAUSES TO
PROPERTY NOT INTIMATELY CONNECTED WITH THE OPERATION OF THE ROAD AT THE
TIME OF THE 1916 REORGANIZATION OF THE DEBTOR.  NONE OF THE PARTIES
RELIES, AT LEAST AS TO PERSONALTY, ON THE CONTROLLING NATURE OF RULES
OF LAW OF A PARTICULAR JURISDICTION.  THE COMMISSION TREATED THE
QUESTION AS ONE OF THE INTERPRETATION OF THE LANGUAGE OF THE MORTGAGE
AND WE SHALL DO LIKEWISE. 

A. AS TO THE FIRST CLASS OF PROPERTY, IT IS THE CONTENTION OF THE
TRUSTEE OF THE REFUNDING MORTGAGE THAT THE DEBTOR'S EQUITY IN THE
ROLLING STOCK SUBJECT TO THE THREE EQUIPMENT TRUSTS AND THE LEASE IS
NOT SUBJECT TO THE LIEN OF THE FIRST MORTGAGE AND THAT IT IS SUBJECT TO
THE LIEN OF THE REFUNDING MORTGAGE.  SINCE NOTHING TURNS ON THE
DIFFERENCE BETWEEN THE EQUIPMENT TRUSTS AND THE LEASE, THEY WILL NOT
FURTHER BE DISTINGUISHED.  THIS EQUITY IS STIPULATED TO HAVE BEEN WORTH
OVER $6,000,000 ON DECEMBER 31, 1935, THE NEAREST DATE AVAILABLE TO
AUGUST 21, 1935, THE DATE OF THE FILING OF THE PETITION.  SINCE THE
OBLIGATIONS SECURED BY ALL THE REFUNDING MORTGAGE BONDS OUTSTANDING
AMOUNT TO ELEVEN MILLIONS IT IS APPARENT THAT DETERMINATION OF THIS
QUESTION IN FAVOR OF THE REFUNDING MORTGAGE BONDHOLDERS WOULD GO FAR
TOWARDS ASSURING THEM EQUALITY OF TREATMENT WITH FIRST MORTGAGE
BONDHOLDERS. 

THE EQUIPMENT TRUSTS, THE USUAL METHOD OF FINANCING THE ACQUISITION
OF ROLLING STOCK, WERE CREATED IN 1923, 1924, 1929 AND 1931.  ALL ARE
DATED BETWEEN THE EXECUTION OF THE FIRST MORTGAGE AND THE REFUNDING
MORTGAGE.  UNDER ALL, AS IS USUAL, THE TRUSTEE RETAINED TITLE TO THE
EQUIPMENT, THE DEBTOR'S EQUITY IN THE PROPERTY INCREASING AS IT
SATISFIED THE SERIALLY MATURING OBLIGATIONS.  THE OBLIGATIONS OF TWO OF
THE TRUSTS HAVE BECOME FULLY SATISFIED SINCE THE INSTITUTION OF THIS
PROCEEDING. 

THE FIRST OF THE GRANTING CLAUSES OF THE FIRST MORTGAGE CONVEYS
PRESENTLY OWNED RAILROAD LINES, EQUIPMENT AND OTHER PROPERTY FORMERLY
THE PROPERTY OF THE DEBTOR'S PREDECESSOR AND SPECIFICALLY ENUMERATING,
UNDER THE SUBHEADING "EQUIPMENT," SEVERAL VARIETIES OF CARS AND "OTHER
ROLLING STOCK."  GRANTING CLAUSE THIRD, ENTITLED "AFTER-ACQUIRED
PROPERTY," COVERS 

"ANY AND ALL PROPERTY AND FACILITIES OF ANY AND EVERY KIND AND
DESCRIPTION, INCLUDING  ... EQUIPMENT  ...  AND ANY AND ALL RIGHT,
TITLE AND INTEREST IN ANY OF SUCH PROPERTIES OR FACILITIES WHICH MAY
FROM TIME TO TIME HEREAFTER BE ACQUIRED OR CONSTRUCTED BY OR BELONG TO"
THE DEBTOR, IF SUCH PROPERTY FALLS INTO ANY ONE OF FOUR CATEGORIES: 

(1)  PROPERTY ACQUIRED "BY THE USE OF FIRST MORTGAGE BONDS OR
PROCEEDS THEREOF OR CASH DEPOSITED" UNDER THE FIRST MORTGAGE "OR ON
ACCOUNT OF THE PURCHASE, ACQUISITION OR CONSTRUCTION THEREOF OR WORK
THEREON" SUCH BONDS OR SUMS ARE PAID OUT; OR 

(2)  PROPERTY CONSTITUTING "AN INTEGRAL PART OR PARTS OF LINES OF
RAILROAD, EXTENSIONS, BRANCHES, OR OTHER PROPERTY SUBJECT TO THE LIEN"
OF THE FIRST MORTGAGE; OR 

(3)  PROPERTY "USED OR ACQUIRED FOR USE IN OR FOR THE MAINTENANCE OR
OPERATION OF OR APPERTAINING TO" ANY OF THE PROPERTY SUBJECT TO THE
LIEN OF THE FIRST MORTGAGE; OR 

(4)  PROPERTY CONSISTING OF SECURITIES OF OR OTHER INTEREST IN THE
PROPERTY OF THE SALT LAKE CITY UNION DEPOT & RAILROAD COMPANY OR
STANDARD REALTY AND DEVELOPMENT COMPANY, OR ANY SUBSIDIARY AS DEFINED. 

THE FIFTH GRANTING CLAUSE COVERS A GREAT VARIETY OF PROPERTIES AND
FACILITIES USED IN THE OPERATION OF A RAILROAD, INCLUDING TRACKS,
BRIDGES, TUNNELS, TELEGRAPH AND TELEPHONE LINES, FLOATING EQUIPMENT AND
SPECIFICALLY SEVERAL KINDS OF CARS "AND OTHER ROLLING STOCK AND
EQUIPMENT" AND "ALL OTHER PROPERTY OF EVERY DESCRIPTION AND ALL RIGHTS
AND INTERESTS IN OR WITH RESPECT TO THE USE OF PROPERTY; 

"PROVIDED THAT THE FOREGOING OR ANY THEREOF, WHETHER NOW OWNED BY THE
COMPANY OR AT ANY TIME HEREAFTER ACQUIRED BY IT  ...  SHALL BE
APPURTENANT TO OR USED OR HELD FOR USE AS, OR AS A PART OR AS PARTS OF,
OR TO FACILITATE OR SAFEGUARD THE MAINTENANCE OR OPERATION OF, ANY
LINES OF RAILROAD, EXTENSIONS, BRANCHES  ...  OR OTHER PROPERTIES NOW
OR AT ANY TIME HEREAFTER SUBJECT TO THE LIEN OF THIS INDENTURE.  ..." 
FN30 

FOLLOWING THE HABENDUM CLAUSE IS A PROVISO, HEREAFTER REFERRED TO BY
ITS TWO OPENING WORDS, READING: 

"SUBJECT, HOWEVER, AS TO ALL EQUIPMENT NOW OWNED TO THE EQUIPMENT
TRUST OR CONDITIONAL SALE AGREEMENTS SECURED THEREON, AND AS TO
EQUIPMENT HEREAFTER ACQUIRED, TO THE EQUIPMENT TRUST OR CONDITIONAL
SALE AGREEMENTS TO WHICH THE SAME SHALL BE SUBJECT AS PERMITTED HEREBY,
...  " 

IT IS STIPULATED THAT ALL THE EQUIPMENT SUBJECT TO THE EQUIPMENT
TRUSTS IN QUESTION WAS ACQUIRED FOR USE AND WAS USED ON ALL OF THE
DEBTOR'S LINES, INCLUDING THOSE SPECIFICALLY DESCRIBED IN THE GRANTING
CLAUSES.  THIS WOULD SEEM TO MAKE CLEAR THAT THE DEBTOR'S EQUITY IN
EQUIPMENT TRUST ROLLING STOCK IS COVERED BY THE LIEN OF THE FIRST
MORTGAGE.  SUBDIVISION (3) OF THE THIRD, AFTER-ACQUIRED PROPERTY
CLAUSE, AS WELL AS THE FIFTH GRANTING CLAUSE, APPLIES. 

THE REFUNDING MORTGAGE TRUSTEE RELIES, HOWEVER, ON A CLAUSE FOUND
BETWEEN THE SIXTH GRANTING CLAUSE AND THE HABENDUM, HEREAFTER REFERRED
TO AS THE RESERVATION CLAUSE, AND READING:  FN31  "AND THE COMPANY MAY,
UNLESS FIRST MORTGAGE BONDS SHALL HAVE BEEN AUTHENTICATED AND DELIVERED
OR THEIR PROCEEDS OR OTHER CASH DEPOSITED HEREUNDER PAID OUT AGAINST
THE SAME, PURCHASE AND ACQUIRE EQUIPMENT, FREE FROM THE LIEN HEREOF, BY
LEASE, CONDITIONAL SALE AGREEMENT OR UNDER ANY FORM OF EQUIPMENT TRUST,
OR PURCHASE SUCH EQUIPMENT AND ISSUE OBLIGATIONS THEREFOR SECURED BY
MORTGAGE OR PLEDGE OF SUCH EQUIPMENT SUPERIOR TO THE LIEN OF THIS
INDENTURE." 

IT IS ARGUED THAT THIS RESERVATION PERMITS THE ACQUISITION OF ROLLING
STOCK ENTIRELY FREE FROM THE LIEN OF THE FIRST MORTGAGE, UNLESS
ACQUIRED, AS WAS NOT THE CASE HERE, BY THE USE OF PROCEEDS OF THE FIRST
MORTGAGE BONDS.  FN32 

WE DO NOT SO VIEW THE RESERVATION.  IT RATHER PERFORMS THE FUNCTION
OF AUTHORIZING THE ACQUISITION OF EQUIPMENT BY EQUIPMENT TRUST OR OTHER
METHOD AND ONLY TO THAT EXTENT DISPLACING THE LIEN OF THE FIRST
MORTGAGE ARISING FROM THE AFTER-ACQUIRED PROPERTY CLAUSES.  THE
GRANTING CLAUSES SHOW A PURPOSE TO SUBJECT TO THE FIRST MORTGAGE ALL
THE PROPERTY AND EQUIPMENT USED IN CONNECTION WITH THE ROAD.  THERE IS
REPEATED GENERAL MENTION OF THE GRANT OF ROLLING STOCK, OF LEGAL AND
EQUITABLE INTERESTS.  THE THIRD AND FIFTH GRANTING CLAUSES FULLY COVER
THIS AFTER-ACQUIRED EQUITY IN ROLLING STOCK PURCHASED THROUGH EQUIPMENT
TRUSTS AND THE "SUBJECT, HOWEVER" CLAUSE CLEARLY CONTEMPLATES THAT THE
FIRST MORTGAGE SHALL BE A LIEN ON EQUIPMENT SECOND ONLY TO EQUIPMENT
TRUST AGREEMENTS.  THAT CLAUSE PROVIDES FOR THE SUBORDINATION OF THE
FIRST MORTGAGE TO EQUIPMENT TRUST AGREEMENTS TO WHICH AFTER-ACQUIRED
EQUIPMENT SHALL BE SUBJECT "AS PERMITTED HEREBY."  THESE LAST WORDS, A
REFERENCE TO THE RESERVATION CLAUSE, CONFIRM OUR VIEW THAT THE FUNCTION
OF THE RESERVATION CLAUSE IS MERELY TO PERMIT THE PURCHASE OF EQUIPMENT
BY THAT METHOD AND NOT TO AUTHORIZE THE COMPLETELY UNTRAMMELED
ACQUISITION OF SUCH EQUIPMENT. 

IT IS URGED THAT THE WORDS "FREE FROM THE LIEN HEREOF" IN THE
RESERVATION CLAUSE MUST BE GIVEN THEIR LITERAL SIGNIFICANCE.  THE
ARGUMENT MUST FAIL ASIDE FROM THE DIFFICULTIES INHERENT IN A SUGGESTION
THAT THESE WORDS SHALL BE LIFTED FROM CONTEXT AND FORCIBLY APPLIED
WITHOUT REFERENCE TO AN INTENTION FAIRLY TO BE DRAWN FROM THREE
SPECIFIC CLAUSES OF THE MORTGAGE AND REINFORCED BY THE ENTIRE SCHEME OF
THE DOCUMENT.  THE RESERVATION CLAUSE PROVIDES THAT THE COMPANY MAY
ACQUIRE EQUIPMENT "FREE FROM THE LIEN HEREOF" IF THE METHOD BE BY
LEASE, CONDITIONAL SALE OR EQUIPMENT TRUST BUT MAY "PURCHASE SUCH
EQUIPMENT AND ISSUE OBLIGATIONS THEREFOR SECURED BY MORTGAGE OR PLEDGE
OF SUCH EQUIPMENT SUPERIOR TO THE LIEN OF THIS INDENTURE."  WHY THE
DIFFERENCE?  EQUIPMENT ACQUIRED FOR CASH WOULD UNQUESTIONABLY BECOME
SUBJECT TO THE FIRST MORTGAGE.  EQUIPMENT ACQUIRED UNDER A PURCHASE
MONEY CHATTEL MORTGAGE WOULD UNDER THIS CLAUSE BE SUBJECT TO THE
MORTGAGE.  THE FIRST MORTGAGE WOULD MERELY BE JUNIOR TO THE CHATTEL
MORTGAGE.  YET EQUIPMENT ACQUIRED UNDER AN EQUIPMENT TRUST AGREEMENT IS
SAID TO BE ENTIRELY FREE OF THE MORTGAGE.  THE INCONSISTENCY FN33 OF
SUCH A RESULT SUGGESTS THAT THE PHRASES "FREE FROM THE LIEN HEREOF" AND
"SUPERIOR TO THE LIEN OF THIS INDENTURE" ARE IN A SENSE CORRELATIVE AND
WERE MERELY SUITED TO THE DIFFERENT TITLE SITUATIONS IN THE TWO METHODS
OF FINANCING. 

B. THE NORTHERN CALIFORNIA EXTENSION IS A 112 MILE BRANCH OF THE
DEBTOR'S MAIN LINE AND RUNS FROM KEDDIE, CALIFORNIA, TO THE GREAT
NORTHERN RAILROAD AT BIEBER, CALIFORNIA.  IT HAS BEEN PROFITABLE SINCE
ITS CONSTRUCTION IN 1932 AND THE COMMISSION EXPECTS THAT ITS TRAFFIC
WILL INCREASE.  AS HAS BEEN STATED THE QUESTION AS TO THE EXTENSION IS
WHETHER IT IS COVERED BY THE AFTER-ACQUIRED PROPERTY CLAUSES OF THE
FIRST MORTGAGE.  SLIGHTLY LESS THAN ONE-HALF THE COST OF THE EXTENSION,
OR ABOUT $5,000,000, WAS FINANCED BY THE SALE OF FIRST MORTGAGE BONDS;
ANOTHER $5,000,000 WAS REALIZED FROM THE SALE OF UNSECURED DEBENTURES
TO THE A.C. JAMES CO., LATER REPLACED BY COLLATERAL NOTES SECURED BY
REFUNDING MORTGAGE BONDS, AND THE REMAINDER, APPROXIMATELY $500,000,
WAS BORROWED FROM THE R.F.C. ON THE SECURITY OF REFUNDING MORTGAGE
BONDS.  FN34 

IN VIEW OF THIS, THE REFUNDING MORTGAGE TRUSTEE CONTENDS THAT THE
FIRST MORTGAGE SHOULD AS A MATTER OF EQUITY BE HELD A LIEN ON THE
EXTENSION ONLY TO THE EXTENT OF FIRST MORTGAGE MONEYS USED OR THAT IT
BE HELD A FIRST LIEN ON A PORTION OF THE MILEAGE EQUAL TO THE
PROPORTION THAT FIRST MORTGAGE MONEYS BORE TO THE TOTAL COST, OR ON AN
UNDIVIDED INTEREST IN THE EXTENSION IN THE SAME PROPORTION.  BUT HERE
AGAIN THE TERMS OF THE FIRST MORTGAGE PRECLUDE SUCH A CONTENTION.  THE
THIRD GRANTING CLAUSE COVERS "ANY AND ALL PROPERTY  ...  INCLUDING  ...
EXTENSIONS  ...  IF 

"(A)  ACQUIRED OR CONSTRUCTED BY THE USE OF FIRST MORTGAGE BONDS OR
PROCEEDS THEREOF OR CASH DEPOSITED HEREUNDER (EXCEPT BONDS DELIVERED OR
CASH PAID OUT UNDER ANY OF THE PROVISIONS OF THIS INDENTURE IN
REIMBURSEMENT OF PREVIOUS EXPENDITURES CERTIFIED AS HEREINAFTER
PROVIDED) OR ON ACCOUNT OF THE PURCHASE, ACQUISITION OR CONSTRUCTION
THEREOF OR WORK THEREON FIRST MORTGAGE BONDS SHALL HEREAFTER BE
AUTHENTICATED AND DELIVERED OR THE PROCEEDS OF FIRST MORTGAGE BONDS OR
OTHER CASH DEPOSITED HEREUNDER SHALL HEREAFTER BE PAID OUT UNDER ANY OF
THE PROVISIONS OF THIS INDENTURE; ...  " 

THE RESERVATION CLAUSE SUPPLEMENTS THIS BY ITS PROVISION THAT THE
RIGHT TO ACQUIRE PROPERTY FREE OF THE LIEN SHALL NOT EXTEND TO "LINES
OF RAILROAD, EXTENSIONS OR BRANCHES  ...  (A) ON ACCOUNT OF THE
PURCHASE, ACQUISITION OR CONSTRUCTION WHEREOF OR WORK WHEREON FIRST
MORTGAGE BONDS SHALL BE AUTHENTICATED AND DELIVERED OR THEIR PROCEEDS
OR OTHER CASH DEPOSITED HEREUNDER SHALL BE PAID OUT AS HEREIN PROVIDED;
...  "  SEE N. 31, SUPRA. 

THE SUBSTANTIAL NATURE OF THE FINANCING OF THE EXTENSION BY THE SALE
OF FIRST MORTGAGE BONDS IS A MATTER OF RECORD AND WE HOLD THAT THE
QUOTED PORTION OF THE THIRD GRANTING CLAUSE AND ESPECIALLY THE CLAUSE
BEGINNING "OR ON ACCOUNT OF THE PURCHASE, ACQUISITION OR CONSTRUCTION
THEREOF OR WORK THEREON" BRING THIS EXTENSION WITHIN THE COVERAGE OF
THE FIRST MORTGAGE.  IN OPPOSITION TO THIS CONCLUSION IT IS SAID THAT
IT WOULD PERMIT THE FIRST MORTGAGE TO BECOME A LIEN ON THE EXTENSION IF
ONLY ONE PENNY OF FIRST MORTGAGE MONEY HAD BEEN USED.  THAT IS, OF
COURSE, NOT OUR CASE.  HERE WE HAVE A CONSIDERED PLAN FOR FINANCING AN
EXTENSION WHICH CONTEMPLATED THAT 50% OF THE NECESSARY MONEYS BE
PROCURED THROUGH THE SALE OF FIRST MORTGAGE BONDS.  THE TERMS OF THE
AFTER-ACQUIRED PROPERTY CLAUSE DISCLOSE AN INTENTION THAT WHERE AT
LEAST SUCH PART OF THE FUNDS USED FOR THE CONSTRUCTION OF SUCH AN
EXTENSION ARE FIRST MORTGAGE FUNDS THAT THE ENTIRE EXTENSION SHOULD BE
SUBJECTED TO THE LIEN OF THE MORTGAGE.  THE REFUNDING MORTGAGE TRUSTEE
CONTENDS THAT IT IS INEQUITABLE TO GIVE THE FIRST MORTGAGE BONDHOLDERS
A LIEN TO THE EXTENT OF ALL FIRST MORTGAGE BONDS OUTSTANDING WHEN IN
FACT THOSE BONDHOLDERS CONTRIBUTED ONLY $5,000,000 TO THE COST OF
CONSTRUCTION AND THE REFUNDING MORTGAGE BONDHOLDERS CONTRIBUTED THE
REMAINDER.  THE ASSERTED INEQUITY DISAPPEARS ON A REFERENCE TO THE
RECORD WHERE IT PLAINLY APPEARS THAT THE PARTIES CONCERNED HAD NO
UNDERSTANDING THAT THE LIEN SITUATION WOULD BE DIFFERENT FROM WHAT WE
HAVE HELD IT TO BE.  FN35 

C. LASTLY, THE REFUNDING MORTGAGE TRUSTEE MAKES A LIMITED CLAIM
AGAINST CERTAIN "NON-CARRIER" REALTY WHICH IS ALLEGED TO BE COMPLETELY
FREE OF THE LIEN OF THE FIRST MORTGAGE.  THE REFUNDING MORTGAGE TRUSTEE
BELIEVES THAT THIS PROPERTY SHOULD BE GIVEN CONSIDERATION AS
UNMORTGAGED PROPERTY IN THE ALLOCATION OF SECURITIES TO THE REFUNDING
MORTGAGE CREDITORS. 

THE GREATER PART OF THIS PROPERTY, WHICH WAS NOT USED FOR RAILWAY
PURPOSES, WAS ACQUIRED FROM THE DEBTOR'S PREDECESSOR, THE WESTERN
PACIFIC RAILWAY COMPANY, PURSUANT TO ITS REORGANIZATION IN 1916, AND
THE QUESTION IS WHETHER THIS PROPERTY IS WITHIN THE TERMS OF THE FIRST
MORTGAGE.  FN36 WE ANSWER THIS QUESTION AFFIRMATIVELY.  DESPITE THE
FACT THAT IT IS OR WAS NOT USED FOR TRANSPORTATION PURPOSES, THE
MORTGAGE NEVERTHELESS COVERS IT BY THE CONVEYANCE OF: 

"FIRST. - ALL AND SINGULAR THE FOLLOWING DESCRIBED LINES OF RAILROAD,
TERMINALS, LANDS, EQUIPMENT, SHARES OF STOCK AND OTHER REAL AND
PERSONAL PROPERTY AND INTERESTS AND RIGHTS IN PROPERTY OWNED BY THE
COMPANY OR TO WHICH IT MAY BE ENTITLED, FORMERLY THE PROPERTY OF OR
BELONGING TO WESTERN PACIFIC RAILWAY COMPANY, A CORPORATION OF THE
STATE OF CALIFORNIA, OR ITS RECEIVERS:  ...  " 

.         .         .         .         . 

"III.  ALL TERMINALS AND ALL LANDS AND INTERESTS IN LANDS, EASEMENTS
THEREIN AND IMPROVEMENTS THEREON, INCLUDING, AMONG OTHER THINGS, YARDS,
STATION AND DEPOT GROUNDS, SHEDS, STATION HOUSES, FREIGHT HOUSES,
WAREHOUSES, ELEVATORS, STOCK-YARDS, CAR-HOUSES, ENGINE HOUSES, OIL
TANKS, WATER TANKS, WATER SUPPLY, SHOPS, HOTELS, BOARDING HOUSES,
HOSPITALS, DOCKS, WHARVES, PIERS, SLIPS, TELEPHONE AND TELEGRAPH LINES
AND OTHER STRUCTURES AND ERECTIONS AND THE APPURTENANCES OF ALL AND
EVERY OF THE FOREGOING, WHETHER OR NOT FOR USE IN CONNECTION WITH SAID
OR ANY LINES OF RAILROAD." 

THE LAST SUBDIVISION OF THE FIRST GRANTING CLAUSE, WHICH FOLLOWS SIX
SUBDIVISIONS SPECIFICALLY DESCRIBING CERTAIN PROPERTIES, CONVEYS: 

"OTHER PROPERTY. 

"VII. - ALL AND SINGULAR THE PROPERTY, INTERESTS AND RIGHTS, (EXCEPT
CASH, ACCOUNTS AND BILLS RECEIVABLE, TRAFFIC AND OTHER OPERATING
BALANCES AND OTHER CASH ITEMS) NOT COMPRISED IN THE DESCRIPTIONS
CONTAINED IN THE FOREGOING SUBDIVISIONS OF THIS CLAUSE FIRST OF THESE
GRANTING CLAUSES, WHICH BELONG TO THE COMPANY OR TO WHICH IT MAY BE
ENTITLED IN ANY MANNER AND WHICH HERETOFORE WERE OWNED BY WESTERN
PACIFIC RAILWAY COMPANY OR TO WHICH SAID COMPANY WAS OR ITS RECEIVERS
WERE ENTITLED." 

REINFORCING THESE PROVISIONS IS THE SECOND GRANTING CLAUSE: 

"SECOND. - ALL OTHER LINES OF RAILROAD, EXTENSIONS, BRANCHES,
TERMINALS, LANDS, STRUCTURES, EQUIPMENT, SHARES OF STOCK, BONDS, NOTES
AND OTHER SECURITIES, CLAIMS, FRANCHISES, PRIVILEGES AND IMMUNITIES AND
OTHER PROPERTY AND ESTATES, INTERESTS AND RIGHTS (WHETHER LEGAL OR
EQUITABLE) NOW OWNED BY OR BELONGING TO THE COMPANY, NOTWITHSTANDING
THE SAME OR ANY THEREOF MAY NOT BE PARTICULARLY SET FORTH IN THESE
GRANTING CLAUSES." 

IN THESE CLAUSES IT IS REPEATEDLY SPECIFIED THAT ALL PROPERTY,
RAILROAD OR OTHERWISE, FORMERLY OWNED BY THE DEBTOR'S PREDECESSOR AND
TO WHICH THE DEBTOR SUCCEEDED, IS TO BE SUBJECT TO THE FIRST MORTGAGE. 

WE THEREFORE AFFIRM THE DISTRICT COURT'S CONCLUSION ADOPTING THE
COMMISSION'S TENTATIVE DETERMINATIONS AS TO THE PRIORITY OF THE FIRST
MORTGAGE. 

ACCOMMODATION COLLATERAL.  THE DEBTOR, THE WESTERN PACIFIC RAILROAD
COMPANY, OBJECTS TO THE PROVISION OF SUBDIVISION R OF THE COMMISSION'S
FINAL ORDER, APPROVED BY THE DISTRICT COURT, DIRECTING THAT 

"ALL COLLATERAL PLEDGED BY THE DEBTOR AS SECURITY FOR NOTES TO THE
RECONSTRUCTION FINANCE CORPORATION, THE RAILROAD CREDIT CORPORATION,
AND THE A.C. JAMES COMPANY SHALL BE REDUCED TO POSSESSION BY THE
RESPECTIVE PLEDGEES THEREOF, AND SHALL BE BY THEM SURRENDERED TO THE
REORGANIZED COMPANY AND CANCELED,  ...  "  233 I.C.C. 453; 34 F.SUPP. 
493, 505. 

THIS ORDER ARISES FROM THE FOLLOWING CIRCUMSTANCES.  AS IS SHOWN ON
PAGE 455, INFRA, THE RECONSTRUCTION FINANCE CORPORATION, THE RAILROAD
CREDIT CORPORATION AND A.C. JAMES COMPANY HAVE NOTES OF THE DEBTOR
SECURED BY PLEDGES BY THE DEBTOR OF VARIOUS AMOUNTS OF THE DEBTOR'S
GENERAL AND REFUNDING BONDS AND OTHER COLLATERAL.  FN37 

TO ASSIST THE DEBTOR IN OBTAINING THE RECONSTRUCTION FINANCE
CORPORATION AND RAILROAD CREDIT CORPORATION LOANS, THE A.C. JAMES
COMPANY FURNISHED TO THE DEBTOR A BLOCK OF REFUNDING BONDS, PREVIOUSLY
ISSUED TO A.C. JAMES COMPANY BY THE DEBTOR, AND WESTERN PACIFIC
CORPORATION FURNISHED TO THE DEBTOR OTHER COLLATERAL DESCRIBED IN THE
COMMISSION FINDING.  THESE SECURITIES WERE A PART OF THOSE THEN PLEDGED
BY THE DEBTOR TO SECURE THE NOTES HELD BY RAILROAD CREDIT CORPORATION
AND RECONSTRUCTION FINANCE CORPORATION, WHICH KNEW THE SOURCE OF THE
COLLATERAL AT THE TIME. 

THE DEBTOR'S OBJECTION TO THE COMMISSION'S ORDER IS STATED BY IT AS
FOLLOWS: 

"IN SUBSTANCE, THE COMMISSION PROVIDED THAT THE COLLATERAL OWNED AND
PLEDGED BY THE DEBTOR SHOULD BE SURRENDERED TO THE REORGANIZED COMPANY
BUT THAT THE ACCOMMODATION COLLATERAL BORROWED FROM OTHERS AND PLEDGED
BY THE DEBTOR SHOULD BE CONFISCATED; OR, TO STATE THE PROPOSAL SOMEWHAT
DIFFERENTLY, THE ACCOMMODATION COLLATERAL IS TO BE RESORTED TO FIRST
INSTEAD OF LAST AS IS REQUIRED BY THE MOST ELEMENTAL PRINCIPLES OF
EQUITY AND BY THE AUTHORITIES CITED BELOW." 

WE THINK, HOWEVER, THAT THE OBJECTION IS NOT SOUND AND THAT THE
COMMISSION'S ORDER IS CORRECT.  THESE ARE OUR REASONS:  THE REFUNDING
BONDS PLEDGED BY THE DEBTOR TO SECURE THE A.C. JAMES COMPANY NOTE AND
LEFT IN THAT POSITION THROUGHOUT WERE PLEDGED DIRECTLY BY THE DEBTOR
AND ARE NOT ACCOMMODATION COLLATERAL IN ANY SENSE.  NOR DO WE NEED GIVE
CONSIDERATION TO THE ACCOMMODATION COLLATERAL BEHIND THE RECONSTRUCTION
FINANCE CORPORATION AND RAILROAD CREDIT CORPORATION NOTES OTHER THAN
THE REFUNDING BONDS.  IN THE EARLIER ORDER APPROVING THE PLAN, THE
COMMISSION PROVIDED THAT THE RIGHTS OF THE RECONSTRUCTION FINANCE
CORPORATION AND RAILROAD CREDIT CORPORATION "IN COLLATERAL PLEDGED WITH
THEM BY PARTIES OTHER THAN THE DEBTOR" SHOULD NOT BE DISTURBED OR
ALTERED.  230 I.C.C. 102; SUBDIVISION O OF THE ORDER OF OCTOBER 10,
1938, ID. 114.  ON CONSIDERATION OF THE PETITIONS FOR MODIFICATION OF
THIS ORDER, THE COMMISSION REFUSED TO DIRECT THAT THIS COLLATERAL BE
"SURRENDERED TO THE PLEDGORS THEREOF."  233 I.C.C. 431, 432.  IN ITS
ORDER, HOWEVER, PROMULGATING THE PRESENT PLAN THERE IS NO CLAUSE
COMPARABLE TO SUBDIVISION O OF THE PREVIOUS ORDER PRESERVING THE RIGHTS
OF RECONSTRUCTION FINANCE CORPORATION AND RAILROAD CREDIT CORPORATION
IN THE COLLATERAL PLEDGED WITH THEM BY "PARTIES OTHER THAN THE
DEBTOR."  THE SOLE PROVISION IN THE FINAL ORDER AS TO THE COLLATERAL
BEHIND THE RECONSTRUCTION FINANCE CORPORATION AND RAILROAD CREDIT
CORPORATION IS THAT FOUND IN SUBDIVISION R AND QUOTED AT THE OPENING OF
THIS SECTION OF THIS OPINION, DIRECTING THE COLLATERAL PLEDGED BY THE
DEBTOR WITH RECONSTRUCTION FINANCE CORPORATION, RAILROAD CREDIT
CORPORATION AND A.C. JAMES COMPANY, BE REDUCED TO POSSESSION,
SURRENDERED TO THE REORGANIZED COMPANY AND CANCELED.  THIS WAS ENTIRELY
PROPER.  NONE OF THE COLLATERAL, OTHER THAN THE REFUNDING BONDS, WAS A
CLAIM AGAINST THE DEBTOR.  A.C. JAMES COMPANY AND THE WESTERN PACIFIC
CORPORATION PERHAPS HAD UNSECURED CLAIMS AGAINST THE DEBTOR FOR THEIR
SECURITIES AND OTHER COLLATERAL WHICH THE DEBTOR HAD BORROWED BUT THESE
WERE HELD WORTHLESS AS CLAIMS AGAINST THE DEBTOR.  233 I.C.C. 452. 
THIS COLLATERAL, OTHER THAN THE REFUNDING BONDS, WAS THEREFORE LEFT
WITH THE PLEDGEES WITH ITS POSITION UNAFFECTED BY ANY DIRECT ACTION OF
THE COMMISSION. 

THE "COLLATERAL PLEDGED BY THE DEBTOR" REFERRED TO IN THE EXCERPT
FROM SUBDIVISION R OF THE COMMISSION'S FINAL ORDER, 233 I.C.C. 453,
QUOTED ABOVE, CAN BE ONLY THE GENERAL AND REFUNDING BONDS OF THE
DEBTOR, INCLUDING THOSE PREVIOUSLY FURNISHED BY A.C. JAMES COMPANY. 
THE WORDS USED IN SUBDIVISION R TO DESCRIBE THEM ARE THE SAME USED BY
THE COMMISSION IN DISTINGUISHING THE REFUNDING BONDS FROM THE REMAINDER
OF THE ACCOMMODATION COLLATERAL.  233 I.C.C. 431, 432.  OF COURSE THE
COLLATERAL LOANED TO THE DEBTOR WHICH WAS NOT AN OBLIGATION OF THE
DEBTOR COULD NOT BE ORDERED BY THE PLAN TO BE CANCELED.  IT REMAINED
WITH THE PLEDGEES.  THIS "COLLATERAL PLEDGED BY THE DEBTOR" WAS
PROPERLY TO BE REDUCED TO POSSESSION BY THE PLEDGEES, SURRENDERED AND
CANCELED.  FOR THESE BONDS, FURNISHED BY A.C. JAMES COMPANY, HELD AS
COLLATERAL WITH OTHER BONDS OF THE DEBTOR, THE RECONSTRUCTION FINANCE
CORPORATION AND RAILROAD CREDIT CORPORATION RECEIVED THEIR ALLOTMENT OF
NEW SECURITIES, 230 I.C.C. 101, AS MODIFIED BY THE RECONSTRUCTION
FINANCE CORPORATION ARRANGEMENT, DESCRIBED IN THIS OPINION AT PAGE
485.  SEE 233 I.C.C. 414, 452.  THE A.C. JAMES COMPANY UNSECURED CLAIM
AGAINST THE DEBTOR FOR THE LOAN OF THE BONDS IS VALUELESS, 233 I.C.C.
452, AND THE PLAN DOES NOT DEAL WITH ANY POSSIBLE CLAIM OF
ACCOMMODATION PLEDGORS AGAINST PLEDGEES OF BONDS WHICH WERE NOT THE
PROPERTY OF THE DEBTOR. 

CHANGE OF CONDITIONS.  THE PLAN NOW UNDER CONSIDERATION WAS CERTIFIED
TO THE COURT ON SEPTEMBER 28, 1939.  TO PROVIDE FOR A $3 DIVIDEND ON
THE NO PAR STOCK, THE PLAN CALLS FOR FUTURE EARNINGS AVAILABLE FOR
BETTERMENTS, INTEREST, SINKING FUND AND DIVIDENDS OF OVER $4,500,000. 
THE TABLE ON PAGE 457 SHOWS HOW DIFFICULT IT HAD BEEN FOR THE SYSTEM TO
EARN THAT AMOUNT.  ANTICIPATED EARNINGS WAS THE PRINCIPAL FACTOR
GOVERNING THE VALUATION OF THE PROPERTY AND THE DOLLAR VOLUME OF NEW
SECURITIES, AND PAST EARNINGS WAS AN IMPORTANT FACTOR IN ESTIMATING
FUTURE EARNINGS.  A HIGHER ESTIMATE OF FUTURE EARNINGS AVAILABLE FOR
DIVIDENDS MIGHT HAVE CREATED AN EQUITY FOR UNSECURED CREDITORS OR EVEN
STOCKHOLDERS.  FURTHERMORE, RESPONDENTS URGE THAT THE "EARNING POWER"
OF THE PROPERTY REFERRED TO IN SUBSECTION (E) MEANS NOT ONLY REALIZED
EARNINGS BUT THE SYSTEM'S ABILITY, UTILIZING ITS PRESENT FACILITIES TO
THE FULL, TO EARN INCREASED RETURNS.  THIS WE DEEM OF LITTLE WEIGHT
AGAINST THE HISTORY OF PAST OPERATIONS.  RESPONDENTS ASK US TO TAKE
INTO CONSIDERATION THE CHANGED CONDITIONS SINCE THE COMMISSION ACTED. 
THERE ARE A FEW YEARS OF ACTUAL EXPERIENCE SUBSEQUENT TO THE
CERTIFICATION.  BY STIPULATION OF THE PARTIES REPORTS OF OPERATING
RESULTS, COMBINED, HAVE BEEN FILED FOR OUR CONSIDERATION FOR THE PERIOD
BEGINNING DECEMBER 1938 DOWN TO AND INCLUDING JULY 1942.  SINCE WE HAVE
AGREEMENT AMONG THE PARTIES AS TO THE EARNINGS AVAILABLE FOR INTEREST,
AS ADJUSTED, THROUGH 1939, SEE PAGE 457, SUPRA, WE NEED REFER ONLY TO
SUBSEQUENT PERIODS.  THESE REPORTS SHOW THE FOLLOWING SUMS AVAILABLE
FOR INTEREST:  1940 - $2,513,090; 1941 - $4,548,128; 1942(7 MONTHS)
$4,830,986* , LESS RELATIVELY MINOR DEDUCTIONS WHICH HAVE NOT BEEN
CONSISTENTLY TREATED IN THE REPORTS.  THIS LAST GROUP OF FIGURES IS
UTILIZED BY US AS A ROUGH EXTENSION OF THE TABLE OF EARNINGS ON PAGE
457.  THEY ARE USEFUL TO SHOW THE STRIKING INCREASES OVER THE OLD
AVERAGES BUT HAVE NOT BEEN ADJUSTED TO CONFORM MATHEMATICALLY WITH THE
TABLE OF EARLIER YEARS. 

*WE HAVE BEEN FURNISHED STATEMENTS OF OPERATING RESULTS OF THE DEBTOR
THROUGH NOVEMBER, 1942, WHICH SHOW FOR THAT PART OF THE YEAR INCOME
AVAILABLE FOR FIXED CHARGES OF $10,309,517.18. 

IN THE INTEREST OF ADVANCING THE SOLUTION OF AS MANY PROBLEMS IN
REORGANIZATION AS POSSIBLE, WE HAVE DELIBERATED UPON THE EFFECT TO BE
GIVEN THESE UNEXPECTEDLY LARGE EARNINGS.  THERE ARE FACTORS IN THESE
INCREASED INCOMES WHICH OBVIOUSLY AFFECT THEIR WEIGHT AS EVIDENCE OF
CONTINUED CAPACITY TO PRODUCE EARNINGS AVAILABLE FOR DIVIDENDS.  THE
EFFECT OF TAXATION IS NOT WHOLLY ANSWERED BY DEDUCTIONS OF TAX
ESTIMATES ON THE BASIS OF PRESENT RATES.  THE REDUCTION BY THE PLAN OF
OUTSTANDING INTEREST-BEARING SECURITIES MAKES INCOME TAXES MORE LIKELY
TO AFFECT NET EARNINGS.  INCREASED WAGES AND COSTS MUST BE RECKONED
WITH AND INCREASED MAINTENANCE MAY REASONABLY BE EXPECTED FROM
INCREASED USE.  ALREADY SERIOUS PROPOSALS FOR DECREASE OF TARIFFS HAVE
BEEN ADVANCED.  ORDER OF THE INTERSTATE COMMERCE COMMISSION IN EX PARTE
NO. 148, JANUARY 4, 1943. 

RESPONDENTS, OF COURSE, ADMIT THAT THE NEEDS OF WAR HAVE INCREASED
TRAFFIC.  TRANSCONTINENTAL TRANSPORTATION HAS AT THE MOMENT DISPLACED A
LARGE PROPORTION OF THAT FROM COAST TO COAST, VIA THE PANAMA CANAL. 
BUSES AND TRUCKS HAVE YIELDED MUCH OF THEIR GAINS IN VOLUME TO
RAILROADS.  BUT RESPONDENTS POINT TO THE NORTHERN CALIFORNIA EXTENSION
AND THE DOTSERO CUTOFF AS PERMANENT FEEDERS TO THE DEBTOR'S GROWING
BUSINESS.  THEY SEE A POST-WAR RECONSTRUCTION AND REHABILITATION PERIOD
WHICH PROMISES A CONTINUANCE OF HEAVY RAILWAY USE INTO THE INDEFINITE
FUTURE.  THIS, SAY RESPONDENTS, IS TO BE APPRAISED IN THE LIGHT OF THE
NECESSITY FOR A NATIONAL TRANSPORTATION SYSTEM ADEQUATE FOR THE
PRODUCTIVE CAPACITY OF THE WAR FACILITIES, WHEN THEY ARE TURNED TO
PEACEFUL PURSUITS. 

THE COMMISSION, AT THE TIME OF ITS CERTIFICATION TO THE COURT,
SEPTEMBER 28, 1939, ACTED AS THE RESULTS OF INCREASED BUSINESS WERE
JUST EMERGING INTO INCREASED PROFITS.  FN38  IN OBJECTIONS TO THE
COMMISSION PLAN FILED IN THE COURT ON DECEMBER 8, 1939, IT WAS
SUGGESTED THAT "ANY ESTIMATE OF RAILROAD EARNINGS MADE PRIOR TO THE
DEVELOPMENT OF WAR CONDITIONS MUST BE REVISED."  THE COURT AFTER
CONSIDERING ALL OF THE OBJECTIONS OFFERED, BUT WITHOUT SPECIFICALLY
DISCUSSING THE CHANGED CONDITIONS, APPROVED THE PLAN ON AUGUST 15,
1940.  34 F.SUPP.  493, 504.  THE COMMISSION'S FORECAST WAS MADE WITH
KNOWLEDGE AND NOT IN DISREGARD OF PAST FLUCTUATIONS OF INCOME, IN WAR
AND IN PEACE.  ON THE SHOWING AS TO CHANGED CONDITIONS MADE BEFORE THE
DISTRICT COURT, THERE WAS NO BASIS FOR A DISAPPROVAL OF THE COMMISSION
PLAN AS UNFAIR TO THE JUNIOR EQUITIES.  THE FURTHER EVIDENCE OF
INCREASED EARNINGS, PLACED IN THE RECORD BY THE STIPULATIONS, DOES NOT
LEAD US TO REJECT THE COMMISSION'S PLAN. 

EFFECTIVE DATE OF PLAN.  JANUARY 1, 1939, WAS CHOSEN AS THE EFFECTIVE
DATE OF THE PLAN.  THE DEBTOR OBJECTS TO THIS ON THE GROUND THAT
SUBSECTION (1) FIXES THE DATE OF FILING THE PETITION AS THE DATE FOR
THE PLAN.  FN39  THE PRACTICAL RESULT OF THE DEBTOR'S ARGUMENT IS TO
MAKE THE INTEREST RATE OF THE NEW SECURITIES APPLICABLE FROM AUGUST 2,
1935, INSTEAD OF FROM JANUARY 1, 1939.  AS THE NEW SECURITIES BEAR
LOWER INTEREST RATES THAN THE CONTRACT SECURITIES, A SAVINGS TO THE
ESTATE WOULD ACCRUE.  FN40  BUT WE ARE OF THE OPINION THAT THE
PROVISIONS OF SUBSECTION (B) ARE SUFFICIENTLY BROAD TO EMPOWER THE
COMMISSION TO SELECT THE DATE FOR THE INSTITUTION OF THE
REORGANIZATION.  CF. GROUP OF INSTITUTIONAL INVESTORS V. CHICAGO, M.,
ST. P. & P.R. CO., POST, P. 546. 

COSTS.  THE INSTITUTIONAL BONDHOLDERS COMMITTEE IN NO. 7 AND THE
TRUSTEES OF THE FIRST MORTGAGE IN NO. 8 CALL OUR ATTENTION TO THE
PROVISION IN THE DECREE IN THE CIRCUIT COURT OF APPEALS FOR COSTS
AGAINST APPELLEES THERE AND SUGGEST THAT COSTS SHOULD BE ASSESSED
DIRECTLY AGAINST THE ESTATE OF THE DEBTOR IN PROCEEDINGS UNDER SEC.
77.  OUR REVERSAL OF THE DECREE LEAVES THE APPELLEES BELOW FREE OF THIS
PROVISION OF THE DECREE AND REQUIRES US TO ASSESS COSTS ON THE REVIEW. 
WE SEE ALSO NO REASON WHY COSTS SHOULD NOT BE ASSESSED AGAINST THE
LOSING PARTIES ON THIS REVIEW OF THE ACTION OF THE DISTRICT COURT, AND
IT WILL BE SO ORDERED.  THIS ASSESSMENT IS WITHOUT PREJUDICE TO A
MOTION FOR ALLOWANCE FOR DISBURSEMENTS BY RESPONDENTS IN ACCORDANCE
WITH SUBSECTION (C)(12).  FN41 

OTHER MINOR OBJECTIONS TO THE PLAN AS APPROVED BY THE DISTRICT COURT
ARE ADVANCED BUT WE DO NOT CONSIDER THEM AS OF SUFFICIENT WEIGHT TO
REQUIRE COMMENT. 

FROM THE FOREGOING IT FOLLOWS THAT THE JUDGMENT OF THE CIRCUIT COURT
OF APPEALS SHOULD BE REVERSED AND THAT OF THE DISTRICT COURT AFFIRMED. 
REVERSED. 

FN1  SEC. 77, BANKRUPTCY ACT, REORGANIZATION OF RAILROADS, 47 STAT.
1474, AS AMENDED, 11 U.S.C. SEC. 205; IN RE WESTERN PACIFIC R. CO., 124
F.2D 136; IN RE WESTERN PACIFIC R. CO., 34 F.SUPP.  493; WESTERN
PACIFIC R. CO. REORGANIZATION, 230 I.C.C. 61; 233 I.C.C. 409; 236
I.C.C. 1. 

FN2  THE SUMMARY OF THE DEBTOR'S PROPERTY PREPARED BY THE INTERSTATE
COMMERCE COMMISSION AS OF OCTOBER 10, 1938, 230 I.C.C. 62, FOLLOWS: 

"LOCATION AND GENERAL DESCRIPTION OF THE PROPERTY.  - THE DEBTOR OWNS
OR OPERATES A TOTAL OF 1,207.51 MILES OF STANDARD-GAGE STEAM RAILROAD. 
THE MAIN LINES EXTEND EASTWARD 924.17 MILES FROM OAKLAND, CALIF., TO
SALT LAKE CITY, UTAH, AND NORTHWARD 111.81 MILES FROM KEDDIE TO BIEBER,
CALIF., WITH OPERATING RIGHTS OVER THE GREAT NORTHERN RAILWAY, 46.38
MILES, FROM BIEBER TO HAMBONE, CALIF.  THE DEBTOR ALSO OPERATES 4.2
MILES OF FERRY SERVICE FROM OAKLAND TO SAN FRANCISCO, AND 185.3 MILES
OF SECOND MAIN TRACK, OF WHICH 182.91 MILES BETWEEN WESO AND ALAZON,
NEV., ARE OWNED BY THE SOUTHERN PACIFIC.  THIS TERRITORY IS KNOWN AS
THE 'PAIRED-TRACK DISTRICT,' SINCE THE TWO LINES ARE USED AS A DOUBLE
TRACK RAILROAD BY BOTH COMPANIES.  VARIOUS BRANCH LINES SPRINGING FROM
THE OAKLAND-SALT LAKE CITY LINE ARE AS FOLLOWS:

       MILES 

NILES JUNCTION TO SAN JOSE, CALIF.........   23.07 

CALPINE JUNCTION TO CALPINE, CALIF........   12.62 

HAWLEY TO LOYALTON, CALIF.................   12.79 

RENO JUNCTION, CALIF., TO RENO, NEV.......   33.11 

BURMESTER TO WARNER, UTAH.................   15.52 

MISCELLANEOUS.............................   21.79 

TOTAL.....................................  118.90 

"OWNED OR CONTROLLED AND JOINTLY AFFILIATED RAILROAD COMPANIES.  -
THE DEBTOR OWNS ALL THE OUTSTANDING CAPITAL STOCK OF THE SACRAMENTO
NORTHERN RAILWAY, AN ELECTRICALLY OPERATED STANDARD-GAGE FREIGHT AND
PASSENGER RAILROAD, CONSISTING OF 276.2 MILES OF ROAD SERVING AND
CONNECTING SAN FRANCISCO AND OAKLAND WITH VARIOUS SACRAMENTO VALLEY
CITIES, PRINCIPALLY PITTSBURG, VACAVILLE, SACRAMENTO, WOODLAND,
MARYSVILLE, COLUSA, AND OROVILLE, ALL IN CALIFORNIA. 

"BY OWNERSHIP OF MORE THAN 99 PERCENT OF THE OUTSTANDING CAPITAL
STOCK, THE DEBTOR CONTROLS THE TIDEWATER SOUTHERN RAILWAY, WHICH
OPERATES A STANDARD-GAGE STEAM FREIGHT LINE 61.38 MILES IN LENGTH,
CONNECTING STOCKTON WITH MANTECA, ESCALON, MODESTO, AND TURLOCK IN THE
SAN JOAQUIN VALLEY OF CALIFORNIA. 

"THE DEBTOR OWNS ALL THE OUTSTANDING CAPITAL STOCK OF THE DEEP CREEK
RAILROAD COMPANY, WHICH OWNS AND OPERATES A STANDARD-GAGE STEAM
RAILROAD EXTENDING FROM WENDOVER TO GOLD HILL, NEW., A DISTANCE OF 44.6
MILES.  IN ADDITION IT OWNS 50 PERCENT OF THE CAPITAL STOCK OF THE SALT
LAKE CITY UNION DEPOT & RAILROAD COMPANY; 33 1/3 PERCENT OF THE CAPITAL
STOCK OF THE CENTRAL CALIFORNIA TRACTION COMPANY, OPERATING AN
ELECTRICALLY OPERATED FREIGHT RAILROAD EXTENDING FROM STOCKTON TO
SACRAMENTO, CALIF., WITH A ROAD MILEAGE OF 53.78 MILES; AND 50 PERCENT
OF THE CAPITAL STOCK OF THE ALAMEDA BELT LINE, OPERATING 15.86 MILES OF
TERMINAL SWITCHING LINE IN THE CITY OF ALAMEDA ON SAN FRANCISCO BAY. 

"NONE OF THE ABOVE SUBSIDIARY OR AFFILIATED COMPANIES HAS FILED A
PETITION UNDER SECTION 77 OF THE BANKRUPTCY ACT, AS AMENDED." 

FN3  THESE FIGURES REPRESENT REPORTED CONSOLIDATED EARNINGS "ADJUSTED
TO TAKE INTO ACCOUNT (A) REHABILITATION EXPENDITURES IN THE YEARS 1927
1931 AND 1934-1938, (B) AMORTIZATION OF DISCOUNT ON FIRST MORTGAGE
BONDS OF THE DEBTOR IN THE YEARS 1922-1938, AND (C) DEDUCTIONS AND
CREDITS IN THE YEARS 1931-1934 MADE BY THE COMMISSION TO ACCORD WITH
ITS ACCOUNTING RULES AND REGULATIONS,  ... " 

FN4 230 I.C.C. 91:  "ANNUAL PAYMENTS INTO THE FUND SHOULD BE $500,000
OR SUCH LESSER SUM AS MAY BE REQUIRED, TOGETHER WITH UNAPPROPRIATED
ACCUMULATIONS IN THE FUND AS OF THE CLOSE OF THE CALENDAR YEAR PRIOR TO
THAT FOR WHICH THE PAYMENT IS TO BE COMPUTED, LESS CHARGES FOR
ADDITIONS AND BETTERMENTS DURING THE LATTER YEAR, TO BRING THE TOTAL IN
THE FUND TO $1,000,000." 

FN5  233 I.C.C. 409, 413; 236 I.C.C. 1, 4.  THIS IS SUMMARIZED BY A
PETITIONER AS FOLLOWS: (CHART OMITTED) 

FN6  THE APPLICABLE PORTION OF THE FINDING IS AS FOLLOWS: 

"(1)  FIRST-MORTGAGE BONDHOLDERS, $19,716,040 OF INCOME-MORTGAGE
BONDS, $29,574,060 OF PREFERRED STOCK, AND 230,593 SHARES OF COMMON
STOCK, THE COMMON STOCK TO BE TAKEN AT THE PRICE OF $57 A SHARE; (2)
FINANCE CORPORATION, $1,185,200 OF INCOME-MORTGAGE BONDS, $1,777,800 OF
PREFERRED STOCK, AND 15,788 SHARES OF COMMON STOCK, THE COMMON STOCK TO
BE TAKEN AT A PRICE OF $57 A SHARE; (3) CREDIT CORPORATION, $154,111 OF
INCOME-MORTGAGE BONDS, $241,681 OF PREFERRED STOCK, AND 35,425 SHARES
OF COMMON STOCK, THE COMMON STOCK TO BE TAKEN AT A PRICE OF $62 A
SHARE; AND (4) JAMES COMPANY, $163,724 OF INCOME-MORTGAGE BONDS,
$256,756 OF PREFERRED STOCK, AND 37,635 SHARES OF COMMON STOCK, BEING
THE AMOUNT OF COMMON STOCK WHICH BEARS TO THE AMOUNT OF COMMON STOCK
ALLOTTED TO THE CLAIM OF THE CREDIT CORPORATION THE SAME PROPORTION
THAT THE PRINCIPAL AMOUNT OF GENERAL AND REFUNDING BONDS OF THE DEBTOR
HELD BY THE JAMES COMPANY AS COLLATERAL FOR ITS CLAIM BEARS TO THE
PRINCIPAL AMOUNT OF SUCH BONDS HELD BY THE CREDIT CORPORATION FOR ITS
CLAIM."  THE RESULT OF THE DISTRIBUTION PER DOLLAR OF INDEBTEDNESS IS
SET OUT IN THE COMMISSION'S REPORTS.  230 I.C.C. 101 AND 233 I.C.C. 417
AND 451. 

FN7  FOR THE PURPOSES OF THIS CONTROVERSY, THE APPOSITE REQUIREMENTS
OF SEC. 77, 11 U.S.C. SEC. 205, MAY BE EXCERPTED AS FOLLOWS: 

"(B)  A PLAN OF REORGANIZATION WITHIN THE MEANING OF THIS SECTION (1)
SHALL INCLUDE PROVISIONS MODIFYING OR ALTERING THE RIGHTS OF CREDITORS
GENERALLY, OR OF ANY CLASS OF THEM, SECURED OR UNSECURED, EITHER
THROUGH THE ISSUANCE OF NEW SECURITIES OF ANY CHARACTER OR OTHERWISE;
(2) MAY INCLUDE PROVISIONS MODIFYING OR ALTERING THE RIGHTS OF
STOCKHOLDERS GENERALLY, OR OF ANY CLASS OF THEM, EITHER THROUGH THE
ISSUANCE OF NEW SECURITIES OF ANY CHARACTER, OR OTHERWISE; (3) MAY
INCLUDE, FOR THE PURPOSE OF PRESERVING SUCH INTERESTS OF CREDITORS AND
STOCKHOLDERS AS ARE NOT OTHERWISE PROVIDED FOR, PROVISIONS FOR THE
ISSUANCE TO ANY SUCH CREDITOR OR STOCKHOLDER OF OPTIONS OR WARRANTS TO
RECEIVE, OR TO SUBSCRIBE FOR, SECURITIES OF THE REORGANIZED COMPANY IN
SUCH AMOUNTS AND UPON SUCH TERMS AND CONDITIONS AS MAY BE SET FORTH IN
THE PLAN; (4) SHALL PROVIDE FOR FIXED CHARGES (INCLUDING FIXED INTEREST
ON FUNDED DEBT, INTEREST ON UNFUNDED DEBT, AMORTIZATION OF DISCOUNT ON
FUNDED DEBT, AND RENT FOR LEASED RAILROADS) IN SUCH AN AMOUNT THAT,
AFTER DUE CONSIDERATION OF THE PROBABLE PROSPECTIVE EARNINGS OF THE
PROPERTY IN LIGHT OF ITS EARNINGS EXPERIENCE AND ALL OTHER RELEVANT
FACTS, THERE SHALL BE ADEQUATE COVERAGE OF SUCH FIXED CHARGES BY THE
PROBABLE EARNINGS AVAILABLE FOR THE PAYMENT THEREOF; (5) SHALL PROVIDE
ADEQUATE MEANS FOR THE EXECUTION OF THE PLAN,  ... 

     .         .         .         .     . 

"(D)  THE DEBTOR, AFTER A PETITION IS FILED AS PROVIDED IN SUBSECTION
(A) OF THIS SECTION, SHALL FILE A PLAN OF REORGANIZATION WITHIN SIX
MONTHS OF THE ENTRY OF THE ORDER BY THE JUDGE APPROVING THE PETITION AS
PROPERLY FILED,  ...  AFTER THE FILING OF SUCH A PLAN, THE COMMISSION,
UNLESS SUCH PLAN SHALL BE CONSIDERED BY IT TO BE PRIMA FACIE
IMPRACTICABLE, SHALL, AFTER DUE NOTICE TO ALL STOCKHOLDERS AND
CREDITORS GIVEN IN SUCH MANNER AS IT SHALL DETERMINE, HOLD PUBLIC
HEARINGS, AT WHICH OPPORTUNITY SHALL BE GIVEN TO ANY INTERESTED PARTY
TO BE HEARD, AND FOLLOWING WHICH THE COMMISSION SHALL RENDER A REPORT
AND ORDER IN WHICH IT SHALL APPROVE A PLAN, WHICH MAY BE DIFFERENT FROM
ANY WHICH HAS BEEN PROPOSED, THAT WILL IN ITS OPINION MEET WITH THE
REQUIREMENTS OF SUBSECTIONS (B) AND (E) OF THIS SECTION, AND WILL BE
COMPATIBLE WITH THE PUBLIC INTEREST; OR IT SHALL RENDER A REPORT AND
ORDER IN WHICH IT SHALL REFUSE TO APPROVE ANY PLAN.  IN SUCH REPORT THE
COMMISSION SHALL STATE FULLY THE REASONS FOR ITS CONCLUSIONS. 

"  ...  NO PLAN SHALL BE APPROVED OR CONFIRMED BY THE JUDGE IN ANY
PROCEEDING UNDER THIS SECTION UNLESS THE PLAN SHALL FIRST HAVE BEEN
APPROVED BY THE COMMISSION AND CERTIFIED TO THE COURT.  ... 

"(E)  UPON THE CERTIFICATION OF A PLAN BY THE COMMISSION TO THE
COURT, THE COURT SHALL GIVE DUE NOTICE TO ALL PARTIES IN INTEREST OF
THE TIME WITHIN WHICH SUCH PARTIES MAY FILE WITH THE COURT THEIR
OBJECTIONS TO SUCH PLAN, AND SUCH PARTIES SHALL FILE, WITHIN SUCH TIME
AS MAY BE FIXED IN SAID NOTICE, DETAILED AND SPECIFIC OBJECTIONS IN
WRITING TO THE PLAN AND THEIR CLAIMS FOR EQUITABLE TREATMENT.  THE
JUDGE SHALL, AFTER NOTICE IN SUCH MANNER AS HE MAY DETERMINE TO THE
DEBTOR, ITS TRUSTEE OR TRUSTEES, STOCKHOLDERS, CREDITORS, AND THE
COMMISSION, HEAR ALL PARTIES IN INTEREST IN SUPPORT OF, AND IN
OPPOSITION TO, SUCH OBJECTIONS TO THE PLAN AND SUCH CLAIMS FOR
EQUITABLE TREATMENT.  AFTER SUCH HEARING, AND WITHOUT ANY HEARING IF NO
OBJECTIONS ARE FILED, THE JUDGE SHALL APPROVE THE PLAN IF SATISFIED
THAT:  (1) IT COMPLIES WITH THE PROVISIONS OF SUBSECTION (B) OF THIS
OF EACH CLASS OF CREDITORS AND STOCKHOLDERS, DOES NOT DISCRIMINATE
UNFAIRLY IN FAVOR OF ANY CLASS OF CREDITORS OR STOCKHOLDERS, AND WILL
CONFORM TO THE REQUIREMENTS OF THE LAW OF THE LAND REGARDING THE
PARTICIPATION OF THE VARIOUS CLASSES OF CREDITORS AND STOCKHOLDERS;
... 

"IF THE JUDGE SHALL NOT APPROVE THE PLAN, HE SHALL FILE AN OPINION,
STATING HIS CONCLUSIONS AND THE REASON THEREFOR, AND HE SHALL ENTER AN
ORDER IN WHICH HE MAY EITHER DISMISS THE PROCEEDINGS, OR IN HIS
DISCRETION AND ON MOTION OF ANY PARTY IN INTEREST REFER THE PROCEEDINGS
BACK TO THE COMMISSION FOR FURTHER ACTION, IN WHICH EVENT HE SHALL
TRANSMIT TO THE COMMISSION A COPY OF ANY EVIDENCE RECEIVED.  ...  IF
THE JUDGE SHALL APPROVE THE PLAN, HE SHALL FILE AN OPINION, STATING HIS
CONCLUSIONS AND THE REASONS THEREFOR, AND ENTER AN ORDER TO THAT
EFFECT, AND SHALL SEND A CERTIFIED COPY OF SUCH OPINION AND ORDER TO
THE COMMISSION.  THE PLAN SHALL THEN BE SUBMITTED BY THE COMMISSION TO
THE CREDITORS OF EACH CLASS WHOSE CLAIMS HAVE BEEN FILED AND ALLOWED IN
ACCORDANCE WITH THE REQUIREMENTS OF SUBSECTION (C) OF THIS SECTION, AND
TO THE STOCKHOLDERS OF EACH CLASS, AND/OR TO THE COMMITTEES OR OTHER
REPRESENTATIVES THEREOF, FOR ACCEPTANCE OR REJECTION, WITHIN SUCH TIME
AS THE COMMISSION SHALL SPECIFY, TOGETHER WITH THE REPORT OR REPORTS OF
THE COMMISSION THEREON OR SUCH A SUMMARIZATION THEREOF AS THE
COMMISSION MAY APPROVE, AND THE OPINION AND ORDER OF THE JUDGE:
PROVIDED, THAT SUBMISSION TO ANY CLASS OF STOCKHOLDERS SHALL NOT BE
NECESSARY IF THE COMMISSION SHALL HAVE FOUND, AND THE JUDGE SHALL HAVE
AFFIRMED THE FINDING, (A) THAT AT THE TIME OF THE FINDING THE
CORPORATION IS INSOLVENT, OR THAT AT THE TIME OF THE FINDING THE EQUITY
OF SUCH CLASS OF STOCKHOLDERS HAS NO VALUE, OR THAT THE PLAN PROVIDES
FOR THE PAYMENT IN CASH TO SUCH CLASS OF STOCKHOLDERS OF AN AMOUNT NOT
LESS THAN THE VALUE OF THEIR EQUITY, IF ANY,  ...  PROVIDED FURTHER,
THAT SUBMISSION TO ANY CLASS OF CREDITORS SHALL NOT BE NECESSARY IF THE
COMMISSION SHALL HAVE FOUND, AND THE JUDGE SHALL HAVE AFFIRMED THE
FINDING, THAT THE INTERESTS OF SUCH CLASS OF CREDITORS WILL NOT BE
ADVERSELY AND MATERIALLY AFFECTED BY THE PLAN, OR THAT AT THE TIME OF
THE FINDING THE INTERESTS OF SUCH CLASS OF CREDITORS HAVE NO VALUE, OR
THAT THE PLAN PROVIDES FOR THE PAYMENT IN CASH TO SUCH CLASS OF
CREDITORS OF AN AMOUNT NOT LESS THAN THE VALUE OF THEIR INTERESTS. 
...           .         .         .         .         . 

"IF IT SHALL BE NECESSARY TO DETERMINE THE VALUE OF ANY PROPERTY FOR
ANY PURPOSE UNDER THIS SECTION, THE COMMISSION SHALL DETERMINE SUCH
VALUE AND CERTIFY THE SAME TO THE COURT IN ITS REPORT ON THE PLAN.  THE
VALUE OF ANY PROPERTY USED IN RAILROAD OPERATION SHALL BE DETERMINED ON
A BASIS WHICH WILL GIVE DUE CONSIDERATION TO THE EARNING POWER OF THE
PROPERTY, PAST, PRESENT, AND PROSPECTIVE, AND ALL OTHER RELEVANT
FACTS.  IN DETERMINING SUCH VALUE ONLY SUCH EFFECT SHALL BE GIVEN TO
THE PRESENT COST OF REPRODUCTION NEW AND LESS DEPRECIATION AND ORIGINAL
COST OF THE PROPERTY, AND THE ACTUAL INVESTMENT THEREIN, AS MAY BE
REQUIRED UNDER THE LAW OF THE LAND, IN LIGHT OF ITS EARNING POWER AND
ALL OTHER RELEVANT FACTS. 

"(F)  ...  THE PROPERTY DEALT WITH BY THE PLAN, WHEN TRANSFERRED AND
CONVEYED TO THE DEBTOR OR TO THE OTHER CORPORATION OR CORPORATIONS
PROVIDED FOR BY THE PLAN, OR WHEN RETAINED BY THE DEBTOR PURSUANT TO
THE PLAN, SHALL BE FREE AND CLEAR OF ALL CLAIMS OF THE DEBTOR, ITS
STOCKHOLDERS AND CREDITORS, AND THE DEBTOR SHALL BE DISCHARGED FROM ITS
DEBTS AND LIABILITIES, EXCEPT SUCH AS MAY CONSISTENTLY WITH THE
PROVISIONS OF THE PLAN BE RESERVED IN THE ORDER CONFIRMING THE PLAN OR
DIRECTING SUCH TRANSFER AND CONVEYANCE OR RETENTION, AND THE JUDGE MAY
REQUIRE THE TRUSTEE OR TRUSTEES APPOINTED HEREUNDER, THE DEBTOR, ANY
MORTGAGEE, THE TRUSTEE OF ANY OBLIGATION OF THE DEBTOR, AND ALL OTHER
PROPER AND NECESSARY PARTIES, TO MAKE ANY SUCH TRANSFER OR CONVEYANCE,
AND MAY REQUIRE THE DEBTOR TO JOIN IN ANY SUCH TRANSFER OR CONVEYANCE
MADE BY THE TRUSTEE OR TRUSTEES.  ...  " 

FN8  CF. HEARINGS ON H.R. 7432, HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 72D CONG., 2D SESS. (1933), PP. 11-12; CUSHMAN, THE
INDEPENDENT REGULATORY COMMISSIONS (1941) 45-58. 

FN9  THE NEED FOR RAILROAD REHABILITATION LEGISLATION UNDER THE
BANKRUPTCY CLAUSE OF THE CONSTITUTION WAS GENERALLY RECOGNIZED. 
PRESIDENT'S MESSAGE, JANUARY 11, 1933, 76 CONG. REC. 1615; 46TH ANNUAL
REPORT OF THE I.C.C., DEC. 1, 1932, P. 15; FOR A STATEMENT THAT THE
PRESIDENT-ELECT FAVORED THE LEGISLATION, SEE 76 CONG. REC. 2917. 

FN10  THE SECTION WAS EXTENSIVELY REVISED IN 1935.  COMPARE 47 STAT.
1474 WITH 49 STAT. 911. 

FN11  H. REP. NO. 1283, 74TH CONG., 1ST SESS., P. 1; S. REP. NO.
1336, 74TH CONG., 1ST SESS., P. 1. 

FN12  FOR THE TWELVE MONTHS ENDING SEPT. 30, 1932, OPERATING REVENUES
OF CLASS I RAILROADS WERE $3,321,052,031, A DECLINE OF $915,535,318
BELOW THOSE OF THE CALENDAR YEAR 1931 AND ABOUT EQUAL TO THOSE OF THE
YEAR 1915.  46TH ANNUAL REPORT OF THE INTERSTATE COMMERCE COMMISSION,
DEC. 1, 1932, P. 6.  CF. 48 STAT. 912, 798. 

FN13  76 CONG. REC. 2905. 

FN14  H. REP. NO. 1897, 72D CONG., 2D SESS., PP. 6-7.  SUBSECTIONS
(D) AND (G), H.R. 14359, 76 CONG. REC. 2905, 2906. 

FN15  SOLICITOR GENERAL'S MEMORANDUM, 76 CONG. REC. 2771, 2773. 

FN16  THE BILL DEALT WITH THE SUBJECT MATTER OF WHAT ARE NOW CHAPTERS
8-11 OF THE BANKRUPTCY ACT. 

FN17  SUBSECTION (G), 47 STAT. 1479.  THE PROVISIONS OF SUBSECTION
(B) WERE THEN SUBSTANTIALLY LIKE THEY ARE NOW. 

FN18  79 CONG. REC. 8851.  H. REP. NO. 1283, 74TH CONG., 1ST SESS.,
P. 1; COMPARE DRAFT OF COORDINATOR'S PROPOSALS, REPORT OF THE FEDERAL
COORDINATOR OF TRANSPORTATION (1935), H. DOC. NO. 89, 74TH CONG., 1ST
SESS., P. 229. 

FN19  REPORT OF THE FEDERAL COORDINATOR, SUPRA, N. 18, PP. 100-103;
H. REP. NO. 1283, 74TH CONG., 1ST SESS., P. 3; S. REP. NO. 1336, 74TH
CONG., 1ST SESS., P. 3; HEARINGS ON H.R. 6249, HOUSE COMMITTEE ON THE
JUDICIARY, 74TH CONG., 1ST SESS., SER.  3, APRIL 15-25, 1935, PP. 26
31. 

FN20  CF. HEARINGS ON H.R. 6249, SUPRA, N. 19, PP. 249-50, 291-92,
317. 

FN21  THE BILL AS RECOMMENDED BY THE FEDERAL COORDINATOR OF
TRANSPORTATION, H. DOC. 89, SUPRA, N. 18, P. 238, AND IN A DIFFERENT
FORM AS CONSIDERED BY THE COMMITTEE ON THE JUDICIARY OF THE HOUSE,
HEARINGS ON H.R. 6249, SUPRA, N. 19, P. 8, DID NOT CONTAIN THE QUOTED
SENTENCE.  DURING THE HEARINGS, THE CHAIRMAN SOUGHT ADVICE AS TO
WHETHER IT WOULD BE LEGALLY VALID TO MAKE THE VALUATION OF THE
COMMISSION FINAL IN PRACTICE.  THIS WAS NOT DENIED ALTHOUGH DOUBT WAS
EXPRESSED WHETHER THE COMMISSION'S FINDING COULD PRECLUDE A CERTAIN
LIMITED AMOUNT OF JUDICIAL REVIEW.  SEE HEARINGS ON H.R. 6249, SUPRA,
N. 20.  AFTER THIS DISCUSSION, THE BILL WHICH WAS TO PASS THE HOUSE WAS
INTRODUCED ON JUNE 20, 1935, 79 CONG. REC. 9814.  IT CONTAINED THE
QUOTED SENTENCE, ABOVE REFERRED TO, IN THE FORM AS IT NOW APPEARS IN
SUBSECTION (E). 

FN22  "THE COMMISSION SHALL MAKE SUCH ORDER ONLY IF IT FINDS THAT
SUCH ISSUE OR ASSUMPTION:  (A) IS FOR SOME LAWFUL OBJECT WITHIN ITS
CORPORATE PURPOSES, AND COMPATIBLE WITH THE PUBLIC INTEREST, WHICH IS
NECESSARY OR APPROPRIATE FOR OR CONSISTENT WITH THE PROPER PERFORMANCE
BY THE CARRIER OF SERVICE TO THE PUBLIC AS A COMMON CARRIER, AND WHICH
WILL NOT IMPAIR ITS ABILITY TO PERFORM THAT SERVICE, AND (B) IS
REASONABLY NECESSARY AND APPROPRIATE FOR SUCH PURPOSE."  49 U.S.C. SEC.
20A (2). 

FN23  CF. PALMER V. MASSACHUSETTS, 308 U.S. 79, 87; WARREN V. PALMER,
310 U.S. 132, 138; UNITED STATES V. MORGAN, 307 U.S. 183, 191; REPORT
OF PRESIDENT'S COMMITTEE TO SUBMIT RECOMMENDATIONS UPON THE GENERAL
TRANSPORTATION SITUATION, DEC. 23, 1938, P. 25. 

FN24  SEE OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126, 144. 

FN25  SUCH A RESULT WAS WITHIN THE CONTEMPLATION OF THE CONGRESSIONAL
COMMITTEE.  HEARINGS ON H.R. 6249, SUPRA, N. 19, PP. 26, 80, 107, 118,
227, 255, 278. 

FN26  IN RE WESTERN PACIFIC R. CO., 124 F.2D 136, 139:  "TO DETERMINE
THIS QUESTION, IT WAS NECESSARY TO DETERMINE, AS OF THE EFFECTIVE DATE
OF THE PLAN, THE VALUE OF (1) EACH OF THE CLAIMS OF RECONSTRUCTION
FINANCE CORPORATION, (2) THE CLAIM OF RAILROAD CREDIT CORPORATION, (3)
THE CLAIM OF A.C. JAMES COMPANY, (4) THE CLAIMS OF THE HOLDERS OF FIRST
MORTGAGE BONDS NOW OUTSTANDING, (5) THE $10,000,000 OF NEW FIRST
MORTGAGE BONDS, (6) THE $21,219,075 OF INCOME BONDS, (7) THE 318,502.97
SHARES OF NEW PREFERRED STOCK AND (8) THE 319,441 SHARES OF NEW COMMON
STOCK WHICH THE PLAN PROVIDES SHALL BE DISTRIBUTED TO SAID CLAIMANTS. 

"TO DETERMINE THE VALUE OF THE ABOVE-MENTIONED CLAIMS, IT WAS
NECESSARY TO DETERMINE THE VALUE OF (1) THE DEBTOR'S ENTIRE PROPERTY,
(2) THE PROPERTY SUBJECT TO THE FIRST MORTGAGE NOW OUTSTANDING, (3) THE
$18,999,500 OF REFUNDING BONDS PLEDGED TO SECURE THE CLAIMS OF A.C.
JAMES COMPANY, RAILROAD CREDIT CORPORATION AND RECONSTRUCTION FINANCE
CORPORATION AND (4) THE OTHER COLLATERAL PLEDGED TO SECURE EACH OF SAID
CLAIMS.  TO DETERMINE THE VALUE OF THE REFUNDING BONDS, IT WAS
NECESSARY TO DETERMINE THE VALUE OF (1) THE PROPERTY SUBJECT TO THE
REFUNDING MORTGAGE ONLY AND (2) THE PROPERTY SUBJECT BOTH TO THE
REFUNDING MORTGAGE AND TO THE FIRST MORTGAGE NOW OUTSTANDING.  THIS, OF
COURSE, NECESSITATED A DETERMINATION AS TO WHICH OF THE DEBTOR'S
PROPERTY IS, AND WHICH IS NOT, SUBJECT TO EACH MORTGAGE.  CONSOLIDATED
ROCK PRODUCTS CO. V. DU BOIS, SUPRA. 

"TO DETERMINE THE VALUE OF THE NEW FIRST MORTGAGE BONDS, INCOME
BONDS, NEW PREFERRED STOCK AND NEW COMMON STOCK MENTIONED ABOVE, IT WAS
NECESSARY TO DETERMINE THE VALUE OF (1) THE DEBTOR'S ENTIRE PROPERTY,
(2) THE PROPERTY WHICH WOULD BE SUBJECT TO THE NEW FIRST MORTGAGE AND
(3) THE PROPERTY WHICH WOULD BE SUBJECT TO THE INCOME MORTGAGE. 

"SUBSECTION E OF SEC. 77 PROVIDES:  'IF IT SHALL BE NECESSARY TO
DETERMINE THE VALUE OF ANY PROPERTY FOR ANY PURPOSE UNDER THIS SECTION,
THE (INTERSTATE COMMERCE) COMMISSION SHALL DETERMINE SUCH VALUE AND
CERTIFY THE SAME TO THE COURT IN ITS REPORT ON THE PLAN.'  IN THIS
CASE, AS HAS BEEN SEEN, IT WAS NECESSARY TO DETERMINE THE VALUE OF (1)
THE DEBTOR'S ENTIRE PROPERTY, (2) EACH OF THE CLAIMS OF RECONSTRUCTION
FINANCE CORPORATION, (3) THE CLAIM OF RAILROAD CREDIT CORPORATION, (4)
THE CLAIM OF A.C. JAMES COMPANY, (5) THE CLAIMS OF THE HOLDERS OF FIRST
MORTGAGE BONDS NOW OUTSTANDING, (6) THE $10,000,000 OF NEW FIRST
MORTGAGE BONDS, (7) THE $21,219,075 OF INCOME BONDS, (8) THE 318,502.97
SHARES OF NEW PREFERRED STOCK, (9) THE 319,441 SHARES OF NEW COMMON
STOCK, (10) THE PROPERTY SUBJECT TO THE FIRST MORTGAGE NOW OUTSTANDING,
(11) THE $18,999,500 OF REFUNDING BONDS PLEDGED TO SECURE THE CLAIMS OF
RECONSTRUCTION FINANCE CORPORATION, RAILROAD CREDIT CORPORATION AND
A.C. JAMES COMPANY, (12) THE OTHER COLLATERAL PLEDGED TO SECURE EACH OF
SAID CLAIMS, (13) THE PROPERTY SUBJECT TO THE REFUNDING MORTGAGE ONLY,
(14) THE PROPERTY SUBJECT BOTH TO THE REFUNDING MORTGAGE AND TO THE
FIRST MORTGAGE NOW OUTSTANDING, (15) THE PROPERTY WHICH WOULD BE
SUBJECT TO THE NEW FIRST MORTGAGE AND (16) THE PROPERTY WHICH WOULD BE
SUBJECT TO THE INCOME MORTGAGE.  IT THUS BECAME THE DUTY OF THE
COMMISSION TO DETERMINE THESE VALUES AND CERTIFY THEM TO THE COURT. 
THAT DUTY WAS NOT PERFORMED." 

FN27  CF. CONSOLIDATED ROCK CO. V. DU BOIS, 312 U.S. 510, 525. 

FN28  NORTHERN PACIFIC RY. CO. V. BOYD, 228 U.S. 482. 

FN29  GROUP OF INSTITUTIONAL INVESTORS V. CHICAGO, M., ST. P. & P.R.
CO., POST, PP. 562-565. 

FN30  THIS CLAUSE ALSO GRANTS "ANY AND ALL REPLACEMENTS, RENEWALS,
IMPROVEMENTS AND BETTERMENTS OF AND ADDITIONS TO" ANY OF THE LINES OR
PROPERTY SUBJECT TO THE LIEN OF THE MORTGAGE.  IN VIEW OF THE HOLDING
AS TO THE EFFECT OF THOSE CLAUSES QUOTED IN THE TEXT IT WILL BE
UNNECESSARY TO CONSIDER THE CONTENTION OF THE TRUSTEE OF THE FIRST
MORTGAGE THAT THIS CLAUSE, AS SUPPLEMENTED BY CERTAIN COVENANTS,
INDEPENDENTLY SUBJECTS THE DEBTOR'S EQUITY IN EQUIPMENT TRUST ROLLING
STOCK TO THE LIEN OF THE MORTGAGE. 

THERE ARE SIX GRANTING CLAUSES.  THE SECOND COVERS ALL LINES, LANDS,
STRUCTURES AND EQUIPMENT AND OTHER PROPERTY, INTERESTS OR RIGHTS, LEGAL
OR EQUITABLE, THEN OWNED BY THE COMPANY, AND NOT SET FORTH
PARTICULARLY.  THE FOURTH PROVIDES FOR THE GRANT OF ADDITIONAL
SECURITY, AND THE SIXTH COVERS LEGAL AND EQUITABLE RIGHTS, CLAIMS AND
DEMANDS, AND RENTS AND INCOME IN THE PROPERTY SUBJECT TO THE LIEN OF
THE INDENTURE. 

FN31  THE PORTION OF THIS CLAUSE PRECEDING THAT QUOTED IN THE TEXT
PROVIDES: 

"BUT NOTHING EXPRESS OR IMPLIED IN THIS INDENTURE SHALL BE CONSTRUED
TO LIMIT THE RIGHT OR POWER OF THE COMPANY OR ANY SUCCESSOR OR
PURCHASING CORPORATION, WHICH RIGHT AND POWER IS HEREBY EXPRESSLY
RESERVED, BY THE USE OF ITS CREDIT OR FREE FUNDS OR BY THE USE OF FIRST
MORTGAGE BONDS DELIVERED TO THE COMPANY OR ANY SUCCESSOR OR PURCHASING
CORPORATION AS IN THIS INDENTURE PROVIDED TO REIMBURSE THE COMPANY OR
ANY SUCH SUCCESSOR OR PURCHASING CORPORATION FOR EXPENDITURES
THERETOFORE ACTUALLY MADE OUT OF ITS FREE FUNDS, TO CONSTRUCT OR
ACQUIRE FREE FROM THE LIEN HEREOF LINES OF RAILROAD, EXTENSIONS OR
BRANCHES OR INTERESTS THEREIN, EQUIPMENT, STOCKS, BONDS OR OTHER
SECURITIES OR OTHER PROPERTY, RIGHTS, FRANCHISES, IMMUNITIES OR
PRIVILEGES PROVIDED THE SAME SHALL NOT BE LINES OF RAILROAD,
EXTENSIONS, OR BRANCHES OR INTERESTS THEREIN, EQUIPMENT, STOCKS, BONDS
OR OTHER SECURITIES, OR OTHER PROPERTY, RIGHTS, FRANCHISES, IMMUNITIES
OR PRIVILEGES (A) ON ACCOUNT OF THE PURCHASE, ACQUISITION OR
CONSTRUCTION WHEREOF OR WORK WHEREON FIRST MORTGAGE BONDS SHALL BE
AUTHENTICATED AND DELIVERED OR THEIR PROCEEDS OR OTHER CASH DEPOSITED
HEREUNDER SHALL BE PAID OUT AS HEREIN PROVIDED; OR (B) CONSISTING OF,
OR IF SECURITIES REPRESENTING, PROPERTY OR FACILITIES CONSTITUTING AN
INTEGRAL PART OR PARTS OF LINES OF RAILROAD, EXTENSIONS, BRANCHES OR
OTHER PROPERTY SUBJECT TO THE LIEN OF THIS INDENTURE OR SOME OTHER
INTEGRAL PORTION WHEREOF IS OR INTEGRAL PORTIONS WHEREOF ARE SUBJECT TO
THE LIEN HEREOF OR REPRESENTED BY SECURITIES SUBJECT TO THE LIEN
HEREOF; OR (C) CONSISTING OF OR, IF SECURITIES, REPRESENTING PROPERTY
OR FACILITIES USED OR ACQUIRED FOR USE IN OR FOR THE MAINTENANCE OR
OPERATION OF OR APPERTAINING TO ANY OF THE LINES OF RAILROAD,
EXTENSIONS, BRANCHES OR OTHER PROPERTY SUBJECT, OR REPRESENTED BY
SECURITIES SUBJECT, TO THE LIEN OF THIS INDENTURE; OR (D) CONSISTING OF
SHARES OF STOCK IN OR OTHER SECURITIES OF SAID THE SALT LAKE CITY UNION
DEPOT AND RAILROAD COMPANY OR SAID STANDARD REALTY AND DEVELOPMENT
COMPANY OR ANY SUBSIDIARY COMPANY OR OF ANY RIGHT, TITLE OR INTEREST
WHICH THE COMPANY OR ANY SUCCESSOR OR PURCHASING CORPORATION MAY
ACQUIRE IN OR TO ANY OF THE PROPERTY OF EITHER OF THE COMPANIES ABOVE
NAMED OR IN OR TO ANY LINE OF RAILROAD OR OTHER PROPERTY OF ANY
CORPORATION WHICH SHALL THEN BE OR IMMEDIATELY PRIOR THERETO SHALL HAVE
BEEN A SUBSIDIARY COMPANY AS THE TERM SUBSIDIARY COMPANY IS DEFINED IN

FN32  THE TRUSTEE FINDS FURTHER SUPPORT FOR THIS ARGUMENT IN A
COMPARISON OF THE FOUR LIMITATIONS ON THE ACQUISITION OF PROPERTY FROM
FREE FUNDS FOUND IN THE OPENING PORTION OF THE RESERVATION CLAUSE,
QUOTED IN THE PRECEDING FOOTNOTE, WITH THE LATTER PORTION OF THE
CLAUSE, QUOTED IN THE TEXT.  THE OPENING PORTION CONTAINS FOUR
LIMITATIONS, OF WHICH ONLY TWO ARE RELEVANT TO THIS ARGUMENT.  THE
FIRST OF THESE FOUR LIMITATIONS IS THAT THE PROPERTY MAY NOT BE
ACQUIRED BY THE USE OF FIRST MORTGAGE BONDS OR THEIR PROCEEDS AND THE
THIRD RELATES TO PROPERTY ACQUIRED FOR USE IN THE OPERATION OF THE ROAD
WHICH IS SUBJECT TO THE MORTGAGE.  IT IS ONLY THIS FIRST LIMITATION
WHICH IS REPEATED IN THE LATTER PORTION OF THE RESERVATION CLAUSE.  IT
IS ARGUED THAT THE OMISSION TO REPEAT THE LIMITATION AS TO PROPERTY
ACQUIRED FOR USE IN THE OPERATION OF THE ROAD SHOWS AN INTENTION THAT
SUCH A LIMITATION SHOULD NOT APPLY IN THAT LATTER PORTION.  FROM THIS
IT IS SAID TO FOLLOW THAT PROPERTY ACQUIRED FOR USE IN THE OPERATION OF
THE ROAD BUT NOT BOUGHT WITH FIRST MORTGAGE MONEYS IS NOT SUBJECT TO
THE MORTGAGE, I. E., THAT THE WORDS "THE COMPANY MAY  ... PURCHASE  ...
EQUIPMENT, FREE FROM THE LIEN HEREOF, BY LEASE, CONDITIONAL SALE
AGREEMENT OR UNDER ANY FORM OF EQUIPMENT TRUST" SHOULD BE READ
LITERALLY WITHOUT REGARD TO THE PURPOSE OF THE CLAUSE TAKEN TOGETHER
WITH THE REMAINDER OF THE MORTGAGE.  THUS ALL BUT THE CONCLUSION OF
THIS ARGUMENT IS MERELY A VARIATION OF THE ARGUMENT DISCUSSED AND
REJECTED IN THE TEXT, THAT THE WORDS "FREE FROM THE LIEN HEREOF" ARE TO
BE TAKEN LITERALLY AND THAT THE PURPOSE OF THE LATTER PORTION OF THE
RESERVATION CLAUSE WAS TO ACCOMPLISH THE RESULT CONTENDED FOR BY THE
REFUNDING MORTGAGE TRUSTEE. 

IF IT BE SAID THAT THE WORDS "FREE FROM THE LIEN HEREOF" IN THE
OPENING PORTION OF THE RESERVATION CLAUSE HAVE A DIFFERENT MEANING FROM
THAT WHICH WE GIVE THOSE SAME WORDS IN THE LATTER PORTION OF THE
CLAUSE, THE ANSWER MUST BE THAT, IN VIEW OF THE DIFFERENT FUNCTIONS OF
THE TWO PORTIONS OF THE RESERVATION CLAUSE, THE DIFFERENCE IS
REQUIRED.  THE OPENING PORTION IS ENTIRELY CONSISTENT WITH GRANTING
CLAUSE THIRD AND THE REMAINDER OF THE RESERVATION CLAUSE. 

THE FOUR LIMITATIONS IN THE OPENING PORTION OF THE RESERVATION CLAUSE
SUBSTANTIALLY CORRESPOND TO THE FOUR CATEGORIES OF AFTER-ACQUIRED
PROPERTY WHICH ARE SUBJECT TO THE MORTGAGE UNDER GRANTING CLAUSE
THIRD.  BY THE THIRD GRANTING CLAUSE, AFTER-ACQUIRED PROPERTY IN THESE
FOUR CATEGORIES IS SUBJECT TO THE MORTGAGE.  BY THE OPENING PORTION OF
THE RESERVATION CLAUSE, PROPERTY NOT IN THESE CATEGORIES MAY BE
PURCHASED WITH FREE FUNDS AND WILL BE FREE FROM THE MORTGAGE.  THIS IS
SO BECAUSE THE CATEGORIES, AS DEFINED IN BOTH PLACES, DO NOT COMPREHEND
PROPERTY UNCONNECTED WITH THE ROAD OF THE DEBTOR.  THUS THE PURCHASE
WITH FREE FUNDS OF A FOREIGN RAILROAD OR OF DOMESTIC REAL ESTATE
UNCONNECTED WITH THE ROAD WOULD BE PERMISSIBLE UNDER THE OPENING
PORTION OF THE RESERVATION CLAUSE, WOULD NOT HAVE BEEN COVERED BY THE
THIRD OR FIFTH GRANTING CLAUSES AND MIGHT CONCEIVABLY BE THE SUBJECT OF
A SUPPLEMENTAL INDENTURE UNDER GRANTING CLAUSE SIXTH.  SEE N. 30,
SUPRA. 

FN33  NO REASON SUGGESTS ITSELF AS TO WHY EQUIPMENT ACQUIRED FOR CASH
SHOULD HAVE BEEN INTENDED TO BE COVERED BY THE FIRST MORTGAGE AND
EQUIPMENT ACQUIRED BY THE EQUIPMENT TRUST METHOD NOT BE SUBJECT TO THE
MORTGAGE AFTER THE EQUIPMENT TRUST OBLIGATION IS COMPLETELY SATISFIED. 
YET THIS IS A CONSEQUENCE OF THE ARGUMENT PRESSED UPON US. 

FN34  CONSTRUCTION OF THE EXTENSION WAS BEGUN IN AUGUST, 1930, AND BY
THE END OF DECEMBER A SUBSTANTIAL AMOUNT OF THE WORK HAD BEEN
COMPLETED.  CONNECTION WITH THE GREAT NORTHERN WAS MADE ON NOVEMBER 10,
1931, AND FREIGHT SERVICE WAS THEN INAUGURATED UNDER THE JURISDICTION
OF THE CONSTRUCTION DEPARTMENT.  ON JUNE 1, 1932, THE LINE WAS PLACED
IN FULL OPERATION.  THE COST OF CONSTRUCTION TO MAY 31, 1932, WAS
$10,183,641.90 AND ADDITIONAL SUMS WERE LATER EXPENDED.  IT WAS
FINANCED AS FOLLOWS:  FIRST MORTGAGE BONDS IN THE AMOUNT OF $5,000,000
WERE SOLD AT 97 1/2 BETWEEN FEBRUARY 11, 1931, AND JANUARY 29, 1932,
PRODUCING $4,875,000.  BETWEEN FEBRUARY 27, 1931, AND MAY 31, 1932,
$5,000,000 OF DEBENTURES, ISSUED UNDER AN INDENTURE DATED JULY 1, 1930,
WERE SOLD FOR CASH AT PAR TO A.C. JAMES CO. THESE DEBENTURES WERE
RETIRED IN MARCH AND MAY, 1932, THROUGH THE ISSUE OF NOTES TO THE A.C.
JAMES CO. FOR $4,999,800($200 BEING PAID IN CASH) SECURED BY A PLEDGE
OF $6,249,500 FACE AMOUNT OF REFUNDING MORTGAGE BONDS.  THE REFUNDING
MORTGAGE WAS EXECUTED AND DELIVERED FEBRUARY 29, 1932, AS OF JANUARY 1
OF THAT YEAR.  THE REMAINDER OF THE TOTAL COST OF CONSTRUCTION WAS
FINANCED BY LOANS OF $559,408 PROCURED FROM THE R.F.C. IN MARCH, JUNE
AND AUGUST, 1932.  THESE WERE PARTS OF LARGER LOANS AND WERE SECURED BY
REFUNDING MORTGAGE BONDS. 

FN35  THE PRIMARY PARTIES CONCERNED WERE THE WESTERN PACIFIC RAILROAD
CORPORATION, PURCHASER OF THE $5,000,000 OF FIRST MORTGAGE BONDS IN
QUESTION, AND THE A.C. JAMES CO., PURCHASER OF A LIKE AMOUNT OF
DEBENTURES.  THE A.C. JAMES CO. IN 1929 OFFERED TO FINANCE THE COST OF
THE EXTENSION IN RETURN FOR A FIRST LIEN THEREON.  IT WAS THEN BELIEVED
THAT THE COST OF THE EXTENSION WOULD BE APPROXIMATELY $5,000,000.  WHEN
IT DEVELOPED THAT IT WOULD GREATLY EXCEED THAT AMOUNT, THE A.C. JAMES
CO. WITHDREW THIS OFFER AND SUBSTITUTED ANOTHER OFFER TO ADVANCE 50% OF
THE MONEYS NEEDED, THE ADVANCES NOT TO EXCEED $5,000,000.  NO MENTION
WAS MADE IN THIS SECOND OFFER OF A FIRST LIEN OR, INDEED, OF ANY LIEN
AND THE INDENTURE UNDER WHICH THE DEBENTURES WERE ISSUED WAS EQUALLY
SILENT.  THE PARTIES WERE FULLY AWARE THAT THE REMAINING 50% OF THE
COST WOULD BE PAID BY THE SALE OF FIRST MORTGAGE BONDS OR OTHER FUNDS. 
THE SECOND OFFER, IN THE FORM OF A COMMITMENT TO BID AT PUBLIC SALE,
WAS ACCEPTED BY THE DEBTOR. 

THE SPECIFICATIONS REFERRED TO IN THE NOTICE CALLING FOR BIDS ON THE
DEBENTURES CONTAIN THE FOLLOWING: 

"THE MAIN LINE OF RAILROAD OF THE COMPANY EXTENDS FROM SAN FRANCISCO,
CALIFORNIA, TO SALT LAKE CITY, UTAH, WITH BRANCHES, AND AGGREGATES
1050.5 MILES MORE OR LESS OF FIRST TRACK.  UPON THE COMPLETION OF THE
COMPANY'S 'NORTHERN CALIFORNIA EXTENSION' ITS MAIN LINE OF RAILROAD
WILL AGGREGATE 1198.5 MILES, MORE OR LESS.  A MAP OF THE COMPANY'S
RAILROAD SYSTEM IS HERETO ANNEXED. 

"THE FIRST MORTGAGE OF THIS COMPANY DATED JUNE 26, 1916, SECURING
THIS COMPANY'S FIRST MORTGAGE BONDS, WHEREUNDER NOT MORE THAN
$50,000,000 THEREOF MAY BE OUTSTANDING AT ANY ONE TIME, IS A FIRST LIEN
ON SAID MAIN LINE OF RAILROAD." 

THE BID OF THE A.C. JAMES CO. STATED THAT IT WAS MADE IN ACCORDANCE
WITH THE SPECIFICATIONS, WHICH HAD BEEN EXAMINED BY THE BIDDER. 

THE SPECIFICATIONS IN CONNECTION WITH THE OFFERS OF THE $5,000,000 OF
FIRST MORTGAGE BONDS CONTAIN SIMILAR STATEMENTS: 

"SAID FIRST MORTGAGE CONSTITUTES A FIRST LIEN ON THE MAIN LINE OF
RAILROAD OF THE COMPANY EXTENDING FROM SAN FRANCISCO, CALIFORNIA, TO
SALT LAKE CITY, UTAH, AND BRANCHES, AGGREGATING 1050.5 MILES, MORE OR
LESS, OF FIRST TRACK, THE COMPANY'S TERMINAL AND OTHER RAILROAD
PROPERTIES IN THE CITIES OF SAN FRANCISCO, OAKLAND AND ELSEWHERE, AND
CERTAIN OF ITS ROLLING STOCK AND EQUIPMENT.  UPON THE COMPLETION OF THE
CONSTRUCTION AND/OR ACQUISITION OF THE COMPANY'S 'NORTHERN CALIFORNIA
EXTENSION' ITS MAIN LINE OF RAILROAD WILL AGGREGATE 1198.5 MILES, MORE
OR LESS.  A MAP OF THE COMPANY'S RAILROAD SYSTEM IS HERETO ANNEXED." 

THE BIDS OF THE WESTERN PACIFIC RAILROAD CORPORATION CONTAIN A
REFERENCE TO THE SPECIFICATIONS SIMILAR TO THAT IN THE BID OF THE A.C.
JAMES CO. 

MR. A. C. JAMES WAS DURING THIS TIME THE PRESIDENT AND A DIRECTOR OF
THE A.C. JAMES CO., A DIRECTOR OF THE WESTERN PACIFIC RAILROAD
CORPORATION AND A DIRECTOR OF THE DEBTOR. 

IT IS NOT SUGGESTED THAT THE UNDERSTANDING OF THE RECONSTRUCTION
FINANCE CORPORATION AS TO THE LIEN OF THE REFUNDING MORTGAGE BONDS
PLEDGED WITH IT TO SECURE THE LOANS MADE TO COMPLETE PAYMENT FOR THE
EXTENSION WAS DIFFERENT.  SEE WESTERN PAC. R. CO. RECONSTRUCTION LOAN,
180 I.C.C. 645, 646, 648-9, AN EXHIBIT HEREIN. 

FN36  A PORTION OF THIS "NON-CARRIER" PROPERTY WAS ACQUIRED AFTER
1916, SOME OF IT BY THE USE OF FIRST MORTGAGE MONEYS AND SOME OF IT IN
SUBSTITUTION FOR PROPERTY RELEASED FROM THE LIEN OF THE FIRST
MORTGAGE.  THE REFUNDING MORTGAGE TRUSTEE MAKES NO CLAIM TO THE
PROPERTY ACQUIRED BY THE USE OF FIRST MORTGAGE MONEYS.  ANOTHER SMALL
PORTION OF THE PROPERTY WAS ACQUIRED AFTER 1916 BUT WITHOUT THE USE OF
FIRST MORTGAGE MONEYS, FOR USE AS FUTURE INDUSTRIAL SITES AND FOR
GRAVEL PIT PURPOSES.  THE CLAIM TO THIS LAST PROPERTY IS NOT SPECIFIED
IN THE BRIEFS OF THE REFUNDING MORTGAGE TRUSTEE AND IT SEEMS TO BE OF
SUCH NEGLIGIBLE VALUE AS WOULD NOT WARRANT A REALLOCATION OF SECURITIES
IF IT WERE TO BE HELD THAT THIS PROPERTY IS NOT SUBJECT TO THE FIRST
MORTGAGE LIEN. 

FN37  THE CLAIMS AND SECURITY THEREFOR WERE FOUND BY THE COMMISSION
TO BE, AS OF JUNE 30, 1938, AS FOLLOWS:  "CLASS 3 ITEMS CONSISTED OF
$4,999,800, FACE AMOUNT, OF NOTES TO THE A.C. JAMES COMPANY, ON WHICH
ACCRUED AND UNPAID INTEREST AMOUNTED TO $1,124,955, AND WHICH ARE
SECURED BY $4,249,500, PRINCIPAL AMOUNT, OF THE DEBTOR'S GENERAL AND
REFUNDING BONDS, AND A SECOND LIEN UPON $2,000,000, PRINCIPAL AMOUNT,
OF THE SAME ISSUE OF BONDS HELD BY THE RAILROAD CREDIT CORPORATION;
CLASS 4 ITEMS CONSISTED OF $2,963,000, FACE AMOUNT, OF NOTES TO THE
RECONSTRUCTION FINANCE CORPORATION, ON WHICH ACCRUED AND UNPAID
INTEREST AMOUNTED TO $649,181, THE NOTES BEING SECURED BY $10,750,000,
PRINCIPAL AMOUNT, OF THE DEBTOR'S GENERAL AND REFUNDING BONDS, AND
VOTING-TRUST CERTIFICATES FOR HALF OF THE VOTING STOCK OF THE DENVER &
RIO GRANDE WESTERN RAILROAD COMPANY, AND A SECOND LIEN UPON $2,000,000,
PRINCIPAL AMOUNT, OF THE SAME ISSUE OF BONDS HELD BY THE RAILROAD
CREDIT CORPORATION; CLASS 5 ITEMS CONSISTED OF $2,445,610, FACE AMOUNT,
OF NOTES TO THE RAILROAD CREDIT CORPORATION, ON WHICH ACCRUED AND
UNPAID INTEREST AMOUNTED TO $135,296, WHICH NOTES ARE SECURED BY
$4,000,000, PRINCIPAL AMOUNT, OF THE DEBTOR'S GENERAL AND REFUNDING
BONDS, AND A SECOND LIEN UPON THE SECURITY HELD BY THE RECONSTRUCTION
FINANCE CORPORATION, AN ASSIGNMENT OF CERTAIN ADVANCES BY THE WESTERN
PACIFIC RAILROAD CORPORATION, AND AN ASSIGNMENT OF THE DISTRIBUTIVE
SHARE OF THE DEBTOR UNDER THE MARSHALING AND DISTRIBUTING PLAN, 1931;
...  "  230 I.C.C. 77. 

FN38  CF. FLORIDA EAST COAST RY. CO. REORGANIZATION, SUPPLEMENTAL
REPORT, AUGUST 10, 1942, 252 I.C.C. 731, 733: 

"IN THE REPORT OF APRIL 6, 1942, DIVISION 4 RECOGNIZED THE FACT THAT
1941 EARNINGS WERE INFLUENCED BY THE EXTRAORDINARY CONDITIONS EXISTING
AS THE RESULT OF THE WAR AND, IN THE REPORT, STATED FULLY ALL
CONSIDERATIONS LEADING TO ITS CONCLUSIONS AS TO JUSTIFIABLE AMOUNTS OF
CAPITALIZATION AND OF NEW GENERAL-MORTGAGE BONDS.  UNDER PRESENT
CONDITIONS, THE FACT THAT THE YEAR 1942 GIVES PROMISE OF PRODUCING EVEN
LARGER EARNINGS THAN 1941 AFFORDS TOO UNCERTAIN AND PRECARIOUS A BASIS
TO JUSTIFY THE INCREASES SOUGHT." 

CF., ALSO, IN RE ALABAMA.  T. & N.R. CORP., 47 F.SUPP.  694, 708;
AKRON, C. & Y. RY, CO. V. HAGENBUCH, 128 F.2D 932, 939; GUARANTY TRUST
CO. V. MINNEAPOLIS & ST. LOUIS R. (D.C. MINN.), SEPTEMBER 10, 1942,
ORDER NO. 968. 

FN39  SECTION 77(1): 

"IN PROCEEDINGS UNDER THIS SECTION AND CONSISTENT WITH THE PROVISIONS
THEREOF, THE JURISDICTION AND POWERS OF THE COURT, THE DUTIES OF THE
DEBTOR AND THE RIGHTS AND LIABILITIES OF CREDITORS, AND OF ALL PERSONS
WITH RESPECT TO THE DEBTOR AND ITS PROPERTY, SHALL BE THE SAME AS IF A
VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN FILED AND A DECREE OF
ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE DEBTOR'S PETITION WAS
FILED." 

FN40  NO CONTENTION IS MADE THAT FULLY SECURED CLAIMS DO NOT BEAR
CONTRACT INTEREST TO THE DATE OF REORGANIZATION, WHENEVER IT MAY BE.
TICONIC BANK V. SPRAGUE, 303 U.S. 406. 

FN41  CF. RECONSTRUCTION FINANCE CORP. V. BANKERS TRUST CO., ANTE, P.
163. 

MR. JUSTICE FRANKFURTER AGREES WITH THIS OPINION, BARRING ONLY THE
VIEWS EXPRESSED REGARDING THE RESPECTIVE FUNCTIONS OF THE INTERSTATE
COMMERCE COMMISSION AND THE DISTRICT JUDGE UNDER SEC. 77 OF THE
BANKRUPTCY ACT. 

MR. JUSTICE JACKSON AND MR. JUSTICE RUTLEDGE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE ROBERTS: 

I AM IN AGREEMENT WITH MUCH THAT IS SAID IN THE OPINION, BUT I DESIRE
SEPARATELY TO STATE MY VIEWS AS TO THE RESPECTIVE ROLES ASSIGNED TO THE
INTERSTATE COMMERCE COMMISSION AND TO THE DISTRICT COURT IN THE
REORGANIZATION PROCESS. 

CONSTITUTION UPON CONGRESS TO ESTABLISH UNIFORM LAWS ON THE SUBJECT OF
BANKRUPTCIES THROUGHOUT THE UNITED STATES.  THE PROCEEDING IS, FROM ITS
INITIATION, ONE IN BANKRUPTCY.  THE LEGISLATION CONSTITUTES THE
INTERSTATE COMMERCE COMMISSION AN ARM OF THE COURT AND CLOTHES THE
COMMISSION WITH CERTAIN FUNCTIONS AS SUCH.  NO QUESTION IS MADE AS TO
THE AUTHORITY OF CONGRESS THUS TO DIVIDE RESPONSIBILITIES BETWEEN THE
COURT AND THE COMMISSION IN THE FORMULATION OF A PLAN OF
REORGANIZATION.  SECTION 77 IS THE GUIDE TO DECISION CONCERNING THE
RESPECTIVE DUTIES OF THE COURT AND THE COMMISSION.  THE STATUTORY
PROVISIONS QUOTED IN NOTE 7 OF THE MAJORITY OPINION SEEM TO ME CLEARLY
TO DEFINE THE BOUNDARIES OF THE POWERS CONFERRED. 

CERTAIN REQUISITES AND CERTAIN PERMISSIBLE FEATURES OF THE PLAN, FOR
THE FORMULATION OF WHICH THE COMMISSION HAS SOLE RESPONSIBILITY, ARE
PRESCRIBED OR PERMITTED.  WITHIN VERY BROAD LIMITS THE COMMISSION IS
GIVEN DISCRETION IN THE APPLICATION OF THESE IN FORMULATING A PLAN. 
(SUBSECTION (B).)  WHEN THE PLAN IS CERTIFIED TO THE JUDGE HIS FUNCTION
IS, AS THE COURT HOLDS, MERELY TO SEE THAT THE LIMITS SET IN SUBSECTION
(B) ARE NOT TRANSGRESSED; THAT THE COMMISSION HAS OBSERVED THE
STANDARDS AND LIMITS THEREBY SET.  SEE SUBSECTION (E) WHICH DIRECTS
THAT THE JUDGE SHALL APPROVE THE PLAN IF SATISFIED THAT IT COMPLIES
WITH THE PROVISIONS OF SUBSECTION (B). 

OTHER FUNCTIONS ARE REPOSED SOLELY IN THE COMMISSION.  IT IS TO
DETERMINE WHETHER THE PLAN "WILL BE COMPATIBLE WITH THE PUBLIC
INTEREST."  (SUBSECTION (D).)  I NEED NOT DISCUSS THE PURPORT OF THIS
DIRECTION, WHICH OBVIOUSLY RELATES, IN THE MAIN, TO THE PROPOSED
CORPORATE AND CAPITAL STRUCTURE OF THE REORGANIZED COMPANY.  THAT
STRUCTURE MUST BE SUCH THAT THE REHABILITATED ENTERPRISE MAY HAVE A
REASONABLE PROSPECT OF SATISFACTORY PUBLIC SERVICE.  THE STATUTE WILL
BE SEARCHED IN VAIN FOR ANY MANDATE TO THE COURT TO REVIEW OR OVERTURN
THE COMMISSION'S JUDGMENT IN THIS RESPECT; AND I AGREE THAT THE
DISTRICT COURT PROPERLY HELD THAT THE PROTECTION OF THE PUBLIC INTEREST
WAS SO FAR COMMITTED TO THE COMMISSION THAT, EXCEPT FOR THE MOST
EGREGIOUS DISREGARD OF RELEVANT CONSIDERATIONS, THE JUDGE SHOULD HOLD
HIMSELF BOUND BY THE COMMISSION'S APPRAISAL OF THE DEMANDS OF THAT
INTEREST.    ANOTHER VITAL STEP IN FORMULATING ANY PLAN IS COMMITTED TO
THE JUDGMENT OF THE COMMISSION.  THIS IS VALUATION OF PROPERTY. 
SUBSECTION (E) STATES THAT, IF IT SHALL BE NECESSARY TO DETERMINE THE
VALUE OF ANY PROPERTY FOR ANY PURPOSE UNDER THE ACT, THE COMMISSION
SHALL DETERMINE SUCH VALUE AND CERTIFY THE SAME TO THE COURT IN ITS
REPORT.  IT SEEMS CLEAR, AS THE OPINION STATES, THAT THE COURT CANNOT
REJECT THE PLAN FOR ANY MERE ASSERTED ERROR IN VALUATION.  ITS POWER IS
LIMITED TO AN EXAMINATION OF THE QUESTION WHETHER THE COMMISSION ACTED
WHOLLY WITHOUT EVIDENCE, ARBITRARILY, OR IN DISREGARD OF RECOGNIZED
CRITERIA.  FN1 

IN EQUITY REORGANIZATIONS PRIOR TO THE PASSAGE OF SEC. 77 THE PHRASE
"FAIR AND EQUITABLE" HAD COME TO HAVE A RECOGNIZED CONTENT.  IT MEANT
THAT, IN ALLOTTING INTERESTS IN THE REORGANIZED COMPANY, THE PRIORITIES
EXISTING BETWEEN LIENORS AND STOCKHOLDERS OF THE DEBTOR MUST BE
SUBSTANTIALLY PRESERVED.  NO REORGANIZATION COULD BE FAIR AND EQUITABLE
IF, IN THE NEW CAPITAL STRUCTURE, JUNIOR INTERESTS WERE ALLOWED TO
PARTICIPATE AT THE EXPENSE OF THOSE WHO HAD HAD A SENIOR POSITION IN
THE OLD.  FN2 

SUBSECTION (D) THE COMMISSION IS CHARGED WITH SEEING THAT A PROPOSED
PLAN MEETS THE REQUIREMENTS OF SUBSECTION (E) AND, BY SUBSECTION (E) IT
IS PROVIDED THAT, ON CERTIFICATION OF A PLAN TO THE COURT, ALL PARTIES
MAY FILE DETAILED AND SPECIFIC OBJECTIONS TO THE PLAN AND THEIR CLAIMS
FOR EQUITABLE TREATMENT.  THE JUDGE IS TO HOLD A HEARING ON SUCH
OBJECTIONS "AND SUCH CLAIMS FOR EQUITABLE TREATMENT."  THUS THE STATUTE
PROVIDES FOR THE FRAMING IN COURT OF SHARP AND SPECIFIC ISSUES DIRECTED
TO THE PLAN'S COMPLIANCE WITH THE RULE GOVERNING ALLOCATION, AND THIS
FACT IS EMPHASIZED BY THE LEAVE GRANTED THE PARTIES TO PRODUCE IN COURT
ADDITIONAL EVIDENCE.  AFTER THE DIRECTION THAT THE JUDGE SHALL APPROVE
THE PLAN "IF SATISFIED" IT COMPLIES WITH SUBSECTION (B), (WHICH
INVOLVES ONLY A DETERMINATION, AS ABOVE INDICATED, WHETHER THE
COMMISSION, IN SETTING UP THE PLAN, HAS RESPECTED THE LIMITS SET BY
CONGRESS IN SUBSECTION (B)), SUBSECTION (E) GOES ON TO DEAL WITH THE
JUDGE'S ACTION ON THE OBJECTIONS OF THE PARTIES AND THEIR CLAIMS FOR
EQUITABLE TREATMENT.  IT PROVIDES THAT HE MUST BE SATISFIED THAT THE
PLAN "IS FAIR AND EQUITABLE, AFFORDS DUE RECOGNITION TO THE RIGHTS OF
EACH CLASS OF CREDITORS AND STOCKHOLDERS, DOES NOT DISCRIMINATE
UNFAIRLY IN FAVOR OF ANY CLASS OF CREDITORS OR STOCKHOLDERS, AND WILL
CONFORM TO THE REQUIREMENTS OF THE LAW OF THE LAND REGARDING THE
PARTICIPATION OF THE VARIOUS CLASSES OF CREDITORS AND STOCKHOLDERS." 

I READ THIS LANGUAGE AS PLACING UPON THE COURT A DUTY QUITE DISTINCT
FROM ANY IMPOSED UPON IT IN CONNECTION WITH THE GENERAL FEATURES OF THE
PLAN OR IN CONNECTION WITH ANY FINDINGS OF THE COMMISSION WITH RESPECT
TO THE VALUE OF PROPERTY.  THE STATUTE CONTEMPLATES THAT THE JUDGE
SHALL NOT ONLY EXAMINE THE FINDINGS OF THE COMMISSION WITH RESPECT TO
THE FAIR EQUIVALENT OF WHAT IS GRANTED TO MORTGAGEES OR STOCKHOLDERS
COMPARED TO THE INTEREST IN THE OLD COMPANY THAT THEY ARE TO SURRENDER,
AND THE COMMISSION'S REASONS FOR ITS ACTION, BUT ALSO HEAR EVIDENCE BY
WHICH HE MAY BE MORE FULLY INFORMED AS TO THE EQUITY AND FAIRNESS, AS
THOSE TERMS HAVE SPECIFIC LEGAL CONNOTATION, OF RIGHTS ACCORDED UNDER
THE PLAN IN RELATION TO THOSE THERETOFORE ENJOYED.  IN MY VIEW,
CONGRESS INTENDED THAT THE JUDGE SHOULD SATISFY HIMSELF, AS IN THE OLD
EQUITY PROCEEDINGS HE WAS BOUND TO DO, THAT THE RELATION BETWEEN THE
VARIOUS CLASSES OF INVESTORS IS SUBSTANTIALLY MAINTAINED IN THE
REORGANIZATION. 

IN ORDER TO DISCHARGE THIS JUDICIAL DUTY THE COURT OBVIOUSLY MAY HAVE
TO PASS UPON QUESTIONS OF LAW.  IN THE PRESENT CASE, A DECISION AS TO
THE PRIORITY AND EXTENT OF THE RESPECTIVE MORTGAGE LIENS IS A LEGAL
PREREQUISITE TO AN ADJUDICATION OF THE ISSUE WHETHER DIFFERENT CLASSES
OF MORTGAGE BONDHOLDERS RECEIVED FAIR AND EQUITABLE TREATMENT IN THE
APPORTIONMENT OF NEW SECURITIES.  I AGREE WITH THE CONCLUSIONS OF THE
COURT ON THE QUESTION OF LAW THUS PRESENTED.  IT HAPPENS THAT THE
PARTIES IN INTEREST DO NOT CHALLENGE THE FAIRNESS OF THE ALLOCATION AS
BETWEEN THEM, IF THE COMMISSION WAS RIGHT IN ITS TENTATIVE CONCLUSION
CONCERNING THE COVERAGE OF THE FIRST MORTGAGE AND THAT OF THE GENERAL
AND REFUNDING MORTGAGE.  IN THIS CASE, THEN, THE FUNCTION OF THE COURT
WAS FULLY PERFORMED ONCE IT HAD DECIDED THAT QUESTION OF LAW.  IN OTHER
CASES, WHERE THE ISSUE OF FAIRNESS AND EQUITY DEPENDS UPON THE FACTS
DISCLOSED, I THINK IT IS THE DUTY OF THE COURT TO GO FARTHER AND
EXAMINE THE PLAN SUFFICIENTLY TO SATISFY ITSELF THAT THE RULE OF
ABSOLUTE PRIORITY ANNOUNCED IN THE BOYD CASE AND IN THE LOS ANGELES AND
ROCK PRODUCTS CASES HAS NOT BEEN VIOLATED.  IN PERFORMING THIS DUTY THE
COURT SHOULD ACCORD GREAT WEIGHT TO THE COMMISSION'S ACTION.  IT SHOULD
REQUIRE THE OBJECTOR TO SHOW THAT THE COMMISSION HAS FAILED TO RESPECT
THE DOCTRINE.  BUT IT SHOULD NOT ACCORD FINALITY TO THE COMMISSION'S
ACTION IF THERE BE ANY EVIDENCE TO SUPPORT IT.  I BELIEVE THE COURT IS
CHARGED BY SUBSECTION (E) WITH THE DUTY OF DETERMINING THAT, IN THE
ALLOCATION OF SECURITIES IN THE REORGANIZED COMPANY, THE COMMISSION HAS
A SUBSTANTIAL FOUNDATION IN THE FACTS FOR THE ALLOCATION OF SECURITIES
REQUIRED BY THE PLAN IT APPROVES. 

I CONCUR IN THE JUDGMENT OF THE COURT. 

FN1  I BELIEVE THIS IS SO AS TO THE VALUATION OF ALL THE ASSETS AND
AS TO VALUATIONS OF PROPERTY SUBJECT TO LIENS OR AVAILABLE FOR THE
CLAIMS OF CLASSES OF CREDITORS OR STOCKHOLDERS.  SEE SUBSECTION (E),
PAR. 2. 

FN2  NORTHERN PACIFIC RY. CO. V. BOYD, 228 U.S. 482; CASE V. LOS
ANGELES LUMBER CO., 308 U.S. 106; CONSOLIDATED ROCK PRODUCTS CO. V. DU
BOIS, 312 U.S. 510. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 
..END :












EMIL V. HANLEY, 318 U.S. 515 


NO. 551.  ARGUED FEBRUARY 12, 1943.  - DECIDED MARCH 15, 1943.  - 130
F.2D 369, AFFIRMED. 


1.  SECTION 2(A)(21) OF THE BANKRUPTCY ACT, WHICH GIVES TO THE
BANKRUPTCY COURT THE POWER TO REQUIRE "RECEIVERS OR TRUSTEES APPOINTED
IN PROCEEDINGS NOT UNDER THIS ACT" WITHIN FOUR MONTHS OF BANKRUPTCY (1)
"TO DELIVER THE PROPERTY IN THEIR POSSESSION OR UNDER THEIR CONTROL TO
THE RECEIVER OR TRUSTEE APPOINTED UNDER THIS ACT," AND (2) "TO ACCOUNT
TO THE COURT FOR THE DISPOSITION BY THEM OF THE PROPERTY" OF THE
BANKRUPT, HELD INAPPLICABLE IN STRAIGHT BANKRUPTCY PROCEEDINGS TO A
RECEIVER APPOINTED BY A STATE COURT (WITHIN FOUR MONTHS OF BANKRUPTCY)
AS AN INCIDENT TO ENFORCEMENT OF A VALID MORTGAGE LIEN.  P. 519. 

2.  SECTION 69(D) OF THE BANKRUPTCY ACT, MAKING A "RECEIVER OR
TRUSTEE, NOT APPOINTED UNDER THIS ACT, OF ANY OF THE PROPERTY" OF THE
BANKRUPT "ACCOUNTABLE" TO THE BANKRUPTCY COURT FOR "ANY ACTION TAKEN BY
HIM SUBSEQUENT TO THE FILING OF SUCH BANKRUPTCY PETITION," APPLIES ONLY
WHERE BANKRUPTCY SUPERSEDES THE PRIOR PROCEEDINGS.  P. 522. 

EMIL, TRUSTEE IN BANKRUPTCY, V. HANLEY, RECEIVER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 317 U.S. 621, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
BANKRUPTCY COURT, 43 F.SUPP.  128, DENYING AN APPLICATION FOR AN ORDER
REQUIRING A STATE COURT RECEIVER TO FILE HIS ACCOUNT IN THE BANKRUPTCY
COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

JOHN M. RUSSELL, INC., WAS THE OWNER OF AN APARTMENT HOUSE IN NEW
YORK.  ON AUGUST 13, 1940, A FORECLOSURE SUIT BY A THIRD MORTGAGEE WAS
FILED.  ON AUGUST 17, 1940, THE STATE COURT APPOINTED RESPONDENT
RECEIVER OF THE RENTS AND PROFITS OF THE APARTMENT HOUSE.  ON AUGUST
31, 1940, AN INVOLUNTARY PETITION IN BANKRUPTCY WAS FILED AGAINST JOHN
M. RUSSELL, INC., OF WHICH PETITIONER WAS SUBSEQUENTLY APPOINTED AS
TRUSTEE.  RESPONDENT COLLECTED THE RENTS FROM THE PREMISES FROM THE
TIME OF HIS APPOINTMENT IN AUGUST, 1940 TO AND INCLUDING AUGUST, 1941. 
WHILE THAT FORECLOSURE SUIT WAS PENDING, MECHANICS LIENS, SUBORDINATE
TO THE THIRD MORTGAGE, WERE FORECLOSED, A SALE WAS HAD, AND THE
PROPERTY PURCHASED BY APARTMENT INVESTING CORPORATION.  THAT WAS IN
FEBRUARY, 1941.  JUDGMENT IN THE MORTGAGE FORECLOSURE SUIT WAS ENTERED
IN JUNE, 1941, AND ON AUGUST 13, 1941, BEFORE THE SALE WAS HELD, THE
JUDGMENT WAS PAID AND SATISFIED BY APARTMENT INVESTING CORPORATION. 
THEREAFTER, RESPONDENT PRESENTED HIS ACCOUNTS TO THE STATE COURT FOR
SETTLEMENT.  PETITIONER APPLIED TO THE BANKRUPTCY COURT FOR AN ORDER
DIRECTING RESPONDENT TO FILE HIS ACCOUNT IN THAT COURT.  WHILE THAT
MOTION WAS PENDING, THE MOTION IN THE STATE COURT CAME ON FOR A
HEARING.  PETITIONER APPEARED AND FILED HIS OBJECTIONS TO RESPONDENT'S
ACCOUNTS.  HIS OBJECTIONS WERE OVERRULED,  FN1  THE ACCOUNTS APPROVED,
AND RESPONDENT DISCHARGED BY THE STATE COURT.  THEREAFTER THE
BANKRUPTCY COURT DENIED PETITIONER'S MOTION.  43 F.SUPP.  128.  THE
CIRCUIT COURT OF APPEALS AFFIRMED BY A DIVIDED VOTE.  130 F.2D 369.  WE
GRANTED THE PETITION FOR A WRIT OF CERTIORARI BECAUSE OF THE IMPORTANCE
OF THE PROBLEM IN THE ADMINISTRATION OF THE BANKRUPTCY ACT. 

PETITIONER CONTENDS THAT SEC. 2(A)(21) AND SEC. 69D MAKE IT
OBLIGATORY ON THE RESPONDENT AS A NON-BANKRUPTCY RECEIVER TO ACCOUNT TO
THE BANKRUPTCY COURT.  THESE PROVISIONS OF THE BANKRUPTCY ACT ARE NEW. 
THEY WERE ADDED IN 1938 BY THE CHANDLER ACT.  52 STAT. 840, 11 U.S.C.
SEC. 11(A)(21), SEC. 109D.  SEC. 2(A)(21) GIVES TO THE BANKRUPTCY COURT
THE POWER IN STRAIGHT BANKRUPTCY PROCEEDINGS TO REQUIRE "RECEIVERS OR
TRUSTEES APPOINTED IN PROCEEDINGS NOT UNDER THIS ACT" WITHIN FOUR
MONTHS OF BANKRUPTCY (1) "TO DELIVER THE PROPERTY IN THEIR POSSESSION
OR UNDER THEIR CONTROL TO THE RECEIVER OR TRUSTEE APPOINTED UNDER THIS
ACT," AND (2) "TO ACCOUNT TO THE COURT FOR THE DISPOSITION BY THEM OF
THE PROPERTY" OF THE BANKRUPT N2.  SEC. 69D MAKES A "RECEIVER OR
TRUSTEE, NOT APPOINTED UNDER THIS ACT, OF ANY OF THE PROPERTY" OF THE
BANKRUPT "ACCOUNTABLE" TO THE BANKRUPTCY COURT FOR "ANY ACTION TAKEN BY
HIM SUBSEQUENT TO THE FILING OF SUCH BANKRUPTCY PETITION."  FN3  THESE
CHANDLER ACT.  THUS, SEC. 2(A)(21) PLAINLY INCLUDES THE CASE WHERE A
LIEN AGAINST THE DEBTOR'S PROPERTY WAS ACQUIRED BY SOME LEGAL OR
EQUITABLE PROCEEDING WITHIN FOUR MONTHS OF BANKRUPTCY.  PRIOR TO 1938
SUCH LIENS DID NOT SURVIVE BANKRUPTCY (STRATON V. NEW, 283 U.S. 318,
322); AND BANKRUPTCY SUPERSEDED THE PROCEEDINGS OUT OF WHICH THEY
AROSE.  REMINGTON, BANKRUPTCY (4TH ED.)  SEC.  2067-SEC. 2071.  BUT THE
ACCOUNTABILITY OF THE NON-BANKRUPTCY RECEIVER OR TRUSTEE PRESENTED SOME
DIFFICULTIES PRIOR TO THE CHANDLER ACT.  WHEN BANKRUPTCY SUPERSEDED THE
PRIOR PROCEEDINGS, ALL DISBURSEMENTS SUBSEQUENT THERETO WERE, OF
COURSE, SUBJECT TO THE EXCLUSIVE CONTROL OF THE BANKRUPTCY COURT.  IN
RE DIAMOND'S ESTATE, 259 F. 70; MOORE V. SCOTT, 55 F.2D 863; LION
BONDING & SURETY CO. V. KARATZ, 262 U.S. 640, 642; GROSS V. IRVING
TRUST CO., 289 U.S. 342.  WHILE SUCH DISBURSEMENTS WERE GENERALLY
SUBJECT TO THE SUMMARY POWER OF THE BANKRUPTCY COURT (TAYLOR V.
STERNBERG, 293 U.S. 470), AN ACCOUNTING FOR DISBURSEMENTS MADE PRIOR TO
BANKRUPTCY REQUIRED A PLENARY SUIT.  LOVELESS V. SOUTHERN GROCER CO.,
159 F. 415; 1 COLLIER, BANKRUPTCY (14TH ED.)  PP. 320-321.  AND SEE
GALBRAITH V. VALLELY, 256 U.S. 46; IN RE JACK STOLKIN, INC., 42 F.2D
829.  SEC. 2(A)(21) BY SUBSTITUTING A SUMMARY PROCEEDING WAS DESIGNED
TO ELIMINATE THE DELAY AND COST OF A PLENARY SUIT AND TO PROVIDE A MORE
EFFECTIVE CONTROL OVER PRIOR DISBURSEMENTS.  SEE H. REP. NO. 1409, 75TH
CONG., 1ST SESS., P. 20; WEINSTEIN, THE BANKRUPTCY LAW OF 1938, PP. 16
17. 

DOES SEC. 2(A)(21) GO FURTHER AND APPLY TO A CASE WHERE A RECEIVER IS
APPOINTED WITHIN FOUR MONTHS OF BANKRUPTCY AS AN INCIDENT TO
ENFORCEMENT OF A MORTGAGE LIEN WHOSE VALIDITY IS NOT CHALLENGED?  PRIOR
TO THE CHANDLER ACT SUCH PROCEEDINGS WERE NOT SUPERSEDED BY
BANKRUPTCY.  THEY SURVIVED BANKRUPTCY, THE INTEREST OF THE ESTATE IN
THEM BEING PROTECTED BY THE INTERVENTION OF THE BANKRUPTCY TRUSTEE. 
STRATON V. NEW, SUPRA, PP. 326-327, AND CASES CITED.  UNDER THE EARLIER
ACT IT MADE NO DIFFERENCE WHETHER SUCH A PROCEEDING WAS INSTITUTED
PRIOR TO OR WITHIN THE FOUR MONTHS PERIOD.  WHERE THE LIEN SURVIVED
BANKRUPTCY, PRIOR PROCEEDINGS TO ENFORCE IT WOULD NOT BE ENJOINED BY
THE BANKRUPTCY COURT.  1 COLLIER, OP. CIT., PP. 306-309; STRATON V.
NEW, SUPRA, P. 326, N. 6.  SEC. 2(A)(21) READ LITERALLY WOULD CALL FOR
A DIFFERENT RESULT, IN THAT FORECLOSURE RECEIVERS WOULD HAVE TO TURN
OVER TO THE BANKRUPTCY COURT ALL THE PROPERTY IN THEIR POSSESSION OR
UNDER THEIR CONTROL, AND ACCOUNT TO IT.  IN THIS CASE, SINCE THE
RECEIVER WAS ONLY A RECEIVER FOR RENTS AND PROFITS, IT WOULD MEAN THAT
THE FORECLOSURE WOULD GO ON APACE IN THE STATE COURT WHILE THE FUNDS
COLLECTED BY THE RECEIVER WOULD BE TURNED OVER TO THE BANKRUPTCY COURT
FOR ADMINISTRATION.  THE ARGUMENT ADVANCED IN SUPPORT OF THAT VIEW IS
THAT WITH SUCH POWER THE BANKRUPTCY COURT COULD BETTER PROTECT THE
INTERESTS OF THE ESTATE IN THE FORECLOSURE PROCEEDING. 

BUT WE DO NOT THINK THAT THAT WAS PART OF THE PURPOSE OF SEC.
2(A)(21).  AS WE HAVE STATED, THE MAIN PURPOSE OF SEC. 2(A)(21) WAS TO
GIVE THE BANKRUPTCY COURT CONTROL OVER DISBURSEMENTS MADE IN NON
BANKRUPTCY PROCEEDINGS PRIOR TO THE FILING OF THE PETITION.  THE HOUSE
JUDICIARY COMMITTEE IN ITS REPORT STATED: "THERE IS NO LOGICAL REASON
WHY THE BANKRUPTCY COURT COULD NOT SUPERVISE THESE EXPENDITURES, SINCE
ALL OF THE PREVIOUS PROCEEDINGS ARE NULLIFIED BY THE PETITION IN
BANKRUPTCY FOLLOWED BY AN ADJUDICATION.  THE PRINCIPLE IS THE SAME AS
THAT INVOLVED IN SECTION 60D OF THE ACT WHERE IT IS PROVIDED THAT FEES
PAID TO THE ATTORNEY FOR THE DEBTOR PRIOR TO BANKRUPTCY AND IN
CONTEMPLATION THEREOF ARE SUBJECT TO REVIEW BY THE BANKRUPTCY COURT." 
H. REP. NO. 1409, SUPRA, P. 20.  THAT IS AS PLAIN AN INDICATION AS
COULD BE MADE THAT SEC. 2(A)(21) WAS DESIGNED TO DEFINE THE POWERS OF
THE BANKRUPTCY COURT ONLY WHERE BANKRUPTCY SUPERSEDED THE PRIOR
PROCEEDINGS.  FN4 THE LANGUAGE OF SEC. 2(A)(21) SQUARES WITH THAT
EXPRESS DECLARATION.  WHEN CONGRESS WROTE THE FOUR MONTHS PROVISO INTO
SEC. 2(A)(21) IT WAS NOT WRITING ON A CLEAN SLATE.  THE PRESENCE OF
THAT PROVISO SUGGESTS THE TYPE OF PROBLEM WITH WHICH CONGRESS WAS
DEALING.  STRATON V. NEW, SUPRA, INDICATES THE IMPORTANCE OF THAT
PERIOD IN A DETERMINATION OF WHAT LIENS DID NOT SURVIVE BANKRUPTCY AND
WHEN BANKRUPTCY PROCEEDINGS SUPERSEDED PRIOR PROCEEDINGS.  THE 1938
ACT, LIKE ITS PREDECESSOR, MAKES THE FOUR MONTHS PERIOD PART OF THE
CRITICAL TEST FOR DETERMINING WHAT LIENS DO NOT SURVIVE BANKRUPTCY. 
ONE EXAMPLE IS TO BE FOUND IN SEC. 67A (1) WHICH PROVIDES THAT LIENS
"OBTAINED BY ATTACHMENT, JUDGMENT, LEVY, OR OTHER LEGAL OR EQUITABLE
PROCESS OR PROCEEDINGS WITHIN FOUR MONTHS" OF BANKRUPTCY ARE NULL AND
VOID ON CERTAIN CONDITIONS.  THAT SECTION ILLUSTRATES THE RELEVANCY OF
THE FOUR MONTHS PERIOD TO THIS TYPE OF PROBLEM.  IF SEC. 2(A)(21) IS
READ TO EXTEND THE POWER OF THE BANKRUPTCY COURT TO THE PRESENT
SITUATION,  FN5  THE FOUR MONTHS PERIOD WILL HAVE ACQUIRED A NEW
SIGNIFICANCE IN BANKRUPTCY LAW.  WE CANNOT HELP BUT THINK THAT IF
CONGRESS HAD SET OUT TO MAKE SUCH A MAJOR CHANGE, SOME CLEAR AND
UNAMBIGUOUS INDICATION OF THAT PURPOSE WOULD APPEAR.  BUT WE CAN FIND
NONE.  MOREOVER, SUCH AN INTERPRETATION WOULD LEAD IN MANY CASES TO A
DIVISION OF AUTHORITY BETWEEN STATE AND FEDERAL COURTS.  THUS IN THIS
CASE THE STATE COURT WOULD REMAIN IN CHARGE OF THE FORECLOSURE; THE
BANKRUPTCY COURT WOULD HAVE EXCLUSIVE CONTROL OVER THE RECEIVER'S
RECEIPTS.  AN INTERPRETATION WHICH LEADS TO A DIVISION OF AUTHORITY SO
FRAUGHT WITH CONFLICT WILL NOT BE READILY IMPLIED. 

IT IS ARGUED, HOWEVER, THAT THE PROVISION IN SEC. 2(A)(21) CONCERNING
PROCEEDINGS UNDER CHAPTERS X AND XII INDICATES A PURPOSE TO INCLUDE THE
TYPE OF RECEIVER WE HAVE HERE.  IT SEEMS CLEAR THAT SUCH A FORECLOSURE
RECEIVER IS INCLUDED WITHIN SEC. 2(A)(21) WHERE PROCEEDINGS UNDER CH. X
HAVE SUPERVENED.  BUT THE FACT THAT A FORECLOSURE RECEIVER IS INCLUDED
FOR ONE PURPOSE DOES NOT NECESSARILY MEAN THAT HE IS INCLUDED FOR
ANOTHER.  PLANS OF REORGANIZATION UNDER CH. X MAY (SEC. 216) AND
COMMONLY DO AFFECT THE RIGHTS OF MORTGAGEES.  HENCE SEC. 148 PROVIDES
THAT AN ORDER APPROVING A PETITION UNDER CH. X OPERATES TO STAY A
PENDING MORTGAGE FORECLOSURE OR OTHER PROCEEDING TO ENFORCE A LIEN
AGAINST THE DEBTOR'S PROPERTY.  FN6  AND SEC. 256 AND SEC. 257 PROVIDE
THAT THE TRUSTEE (OR DEBTOR) ACQUIRES ALL RIGHTS IN, AND THE RIGHT TO
IMMEDIATE POSSESSION OF, THE PROPERTY OF THE DEBTOR UNDER THE CONTROL
OF A RECEIVER OR TRUSTEE APPOINTED IN A PRIOR PROCEEDING IN ANY FEDERAL
OR STATE COURT.  THAT IS TO SAY, A CH. X PROCEEDING SUPERSEDES A
PENDING MORTGAGE FORECLOSURE.  WE THUS FIND SEC. 2(A)(21) PERFORMING
THE SAME FUNCTION WHEN APPLIED TO CH. X PROCEEDINGS  FN7  AS IT DOES
WHEN APPLIED TO ORDINARY BANKRUPTCY.  WE CONCLUDE THAT THE CIRCUIT
COURT OF APPEALS WAS CORRECT IN READING THE WORD "RECEIVERS"
DISTRIBUTIVELY.  SUCH A CONSTRUCTION FITS THE STATUTORY SCHEME AS A
WHOLE.  THE OTHER INTERPRETATION RESULTS IN A DISTORTION WHICH THE
LANGUAGE OF SEC. 2(A)(21) MAKES UNNECESSARY AND WHICH ITS HISTORY DOES
NOT WARRANT. 

LITTLE NEED BE SAID ABOUT SEC. 69D.  IT MUST BE READ IN CONNECTION
WITH SEC. 2(A)(21).  THE LEGISLATIVE HISTORY SUGGESTS THAT IT, TOO, WAS
DESIGNED TO APPLY ONLY WHERE BANKRUPTCY SUPERSEDED THE PRIOR
PROCEEDINGS.  H. REP. NO. 1409, SUPRA, P. 12.  AS STATED BY THE
DRAFTSMAN, "IT MAKES CLEAR AND CERTAIN THE EXCLUSIVE AND PARAMOUNT
JURISDICTION OF THE BANKRUPTCY COURT OVER PROPERTY DEALT WITH IN A
PRIOR EQUITY RECEIVERSHIP OR LIKE PROCEEDING WHICH IS SUPERSEDED BY A
BANKRUPTCY PROCEEDING."  WEINSTEIN, OP. CIT., P. 154.  AND SEE 4
COLLIER, OP. CIT., PP. 879-882.  AFFIRMED. 

FN1  THE COURT HOLDING THAT ALL RIGHTS OF THE BANKRUPT IN THE REAL
PROPERTY WERE CUT OFF FEBRUARY 24, 1941; THAT ON THAT DAY THERE WAS A
DEFICIT IN THE RECEIVER'S ACCOUNT; AND THAT THE BALANCE OF RENTS HAD
ACCRUED SUBSEQUENT TO FEBRUARY 24, 1941. 

FN2  SEC. 2(A)(21) SETS FORTH AS ONE OF THE ENUMERATED POWERS OF
COURTS OF BANKRUPTCY, THE POWER TO:  "REQUIRE RECEIVERS OR TRUSTEES
APPOINTED IN PROCEEDINGS NOT UNDER THIS ACT, ASSIGNEES FOR THE BENEFIT
OF CREDITORS, AND AGENTS AUTHORIZED TO TAKE POSSESSION OF OR TO
LIQUIDATE A PERSON'S PROPERTY TO DELIVER THE PROPERTY IN THEIR
POSSESSION OR UNDER THEIR CONTROL TO THE RECEIVER OR TRUSTEE APPOINTED
UNDER THIS ACT OR, WHERE AN ARRANGEMENT OR A PLAN UNDER THIS ACT HAS
BEEN CONFIRMED AND SUCH PROPERTY HAS NOT PRIOR THERETO BEEN DELIVERED
TO A RECEIVER OR TRUSTEE APPOINTED UNDER THIS ACT, TO DELIVER SUCH
PROPERTY TO THE DEBTOR OR OTHER PERSON ENTITLED TO SUCH PROPERTY
ACCORDING TO THE PROVISIONS OF THE ARRANGEMENT OR PLAN, AND IN ALL SUCH
CASES TO ACCOUNT TO THE COURT FOR THE DISPOSITION BY THEM OF THE
PROPERTY OF SUCH BANKRUPT OR DEBTOR:  PROVIDED, HOWEVER, THAT SUCH
DELIVERY AND ACCOUNTING SHALL NOT BE REQUIRED, EXCEPT IN PROCEEDINGS
UNDER CHAPTERS X AND XII OF THIS ACT, IF THE RECEIVER OR TRUSTEE WAS
APPOINTED, THE ASSIGNMENT WAS MADE, OR THE AGENT WAS AUTHORIZED MORE
THAN FOUR MONTHS PRIOR TO THE DATE OF BANKRUPTCY.  UPON SUCH
ACCOUNTING, THE COURT SHALL REEXAMINE AND DETERMINE THE PROPRIETY AND
REASONABLENESS OF ALL DISBURSEMENTS MADE OUT OF SUCH PROPERTY BY SUCH
RECEIVER, TRUSTEE, ASSIGNEE, OR AGENT, EITHER TO HIMSELF OR TO OTHERS,
FOR SERVICES AND EXPENSES UNDER SUCH RECEIVERSHIP, TRUSTEESHIP,
ASSIGNMENT, OR AGENCY, AND SHALL, UNLESS SUCH DISBURSEMENTS HAVE BEEN
APPROVED, UPON NOTICE TO CREDITORS AND OTHER PARTIES IN INTEREST, BY A
COURT OF COMPETENT JURISDICTION PRIOR TO THE PROCEEDING UNDER THIS ACT,
SURCHARGE SUCH RECEIVER, TRUSTEE, ASSIGNEE, OR AGENT THE AMOUNT OF ANY
DISBURSEMENT DETERMINED BY THE COURT TO HAVE BEEN IMPROPER OR
EXCESSIVE." 

FN3  SEC. 69D PROVIDES:  "UPON THE FILING OF A PETITION UNDER THIS
ACT, A RECEIVER OR TRUSTEE, NOT APPOINTED UNDER THIS ACT, OF ANY OF THE
PROPERTY OF A BANKRUPT SHALL BE ACCOUNTABLE TO THE BANKRUPTCY COURT, IN
WHICH THE PROCEEDING UNDER THIS ACT IS PENDING, FOR ANY ACTION TAKEN BY
HIM SUBSEQUENT TO THE FILING OF SUCH BANKRUPTCY PETITION, AND SHALL
FILE IN SUCH BANKRUPTCY COURT A SWORN SCHEDULE SETTING FORTH A SUMMARY
OF THE PROPERTY IN HIS CHARGE AND OF THE LIABILITIES OF THE ESTATE,
BOTH AS OF THE TIME OF AND SINCE HIS APPOINTMENT, AND A SWORN STATEMENT
OF HIS ADMINISTRATION OF THE ESTATE.  SUCH RECEIVER OR TRUSTEE, WITH
KNOWLEDGE OF THE FILING OF SUCH BANKRUPTCY PROCEEDING, SHALL NOT MAKE
ANY DISBURSEMENTS OR TAKE ANY ACTION IN THE ADMINISTRATION OF SUCH
PROPERTY WITHOUT FIRST OBTAINING AUTHORIZATION THEREFOR FROM THE
BANKRUPTCY COURT."    FN4  WE DO NOT, OF COURSE, INCLUDE THAT
SUPERSESSION WHICH FLOWS FROM THE FACT THAT STATE INSOLVENCY LAWS ARE
INVOLVED WHICH ARE "TANTAMOUNT TO BANKRUPTCY."  STRATON V. NEW, SUPRA,
P. 327. 

FN5  WE DO NOT REACH THE QUESTION, RESERVED IN DUPARQUET HUOT &
MONEUSE CO. V. EVANS, 297 U.S. 216, 224, WHETHER THE APPOINTMENT OF A
FORECLOSURE RECEIVER MIGHT BE AN ACT OF BANKRUPTCY UNDER SEC. 3(A)(5). 
SEE IN RE 211 EAST DELAWARE PLACE BLDG. CORP., 14 F.SUPP.  96.  IT WAS
SUGGESTED IN RANDOLPH V. SCRUGGS, 190 U.S. 533, 536, THAT BANKRUPTCY
SUPERSEDED A GENERAL ASSIGNMENT FOR THE BENEFIT OF CREDITORS MADE
WITHIN THE FOUR MONTHS PERIOD SINCE THE MAKING OF THE ASSIGNMENT WAS AN
ACT OF BANKRUPTCY.  AND SEE REMINGTON, OP. CIT., SEC. 2071. 

FN6  AND UNLIKE PROCEEDINGS UNDER SEC. 77B (DUPARQUET HUOT & MONEUSE
CO. V. EVANS, 297 U.S. 216), A MORTGAGE FORECLOSURE IS ADEQUATE UNDER
CERTAIN CONDITIONS FOR A CREDITOR'S PETITION UNDER CH. X. SEC. 131(4). 

FN7  SIMILAR CONSIDERATIONS ARE APPLICABLE TO REAL PROPERTY
ARRANGEMENTS UNDER CH. XII.  SECS. 406(1), 411, 416, 428. 

MR. JUSTICE RUTLEDGE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :










GROUP OF INVESTORS V. MILWAUKEE R. CO., 318 U.S. 523 


NO. 11.  ARGUED OCTOBER 14, 15, 1942.  - DECIDED MARCH 15, 1943.  - 124
F.2D 754, REVERSED IN PART. 


UPON REVIEW OF A JUDGMENT OF THE CIRCUIT COURT OF APPEALS WHICH
REVERSED AN ORDER OF THE DISTRICT COURT APPROVING A PLAN, CERTIFIED TO
IT BY THE INTERSTATE COMMERCE COMMISSION, FOR REORGANIZATION OF THE
CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY UNDER SEC. 77
OF THE BANKRUPTCY ACT, HELD: 

1.  THE COMMISSION'S CONCLUSION THAT THE EQUITY OF HOLDERS OF THE
DEBTOR'S PREFERRED AND COMMON STOCK WAS WITHOUT VALUE, AND THAT THEY
WERE THEREFORE NOT ENTITLED TO PARTICIPATE IN THE REORGANIZATION, WAS
SUSTAINED BY THE REASONS AND SUPPORTING DATA SET FORTH IN THE
COMMISSION'S REPORT ON THE PLAN.  P. 536. 

(A)  THE COMMISSION IS NOT REQUIRED BY THE ACT TO FORMALIZE IN
FINDINGS THE EXTENSIVE DATA ON WHICH IT RELIED IN THE EXERCISE OF ITS
EXPERT, INFORMED JUDGMENT.  P. 539. 

(B)  NOR WAS THE COMMISSION REQUIRED TO MAKE A PRECISE FINDING AS TO
THE VALUE OF THE COMPANY'S PROPERTIES IN ORDER TO ELIMINATE THE OLD
STOCK FROM THE PLAN.  P. 539. 

(C)  A FINDING AS TO THE PRECISE EXTENT OF THE DEFICIENCY IS NOT
MATERIAL OR GERMANE TO THE FINDING OF "NO VALUE" PRESCRIBED BY SEC.
77(E).  P. 539. 

(D)  IF IT IS ESTABLISHED THAT THERE IS NO REASONABLE PROBABILITY
THAT THE EARNING POWER OF THE ROAD WILL BE SUFFICIENT TO PAY PRIOR
CLAIMS OF INTEREST AND PRINCIPAL AND LEAVE SOME SURPLUS FOR THE SERVICE
OF THE STOCK, THEN THE INCLUSION OF THE STOCK WOULD VIOLATE THE FULL
PRIORITY RULE, INCORPORATED IN SEC. 77 BY THE PHRASE "FAIR AND
EQUITABLE."  P. 541. 

2.  THE CRITERIA EMPLOYED BY THE COMMISSION FOR DETERMINING THE
PERMISSIBLE CAPITALIZATION OF THE REORGANIZED COMPANY WERE IN ACCORD
WITH THE ACT.  P. 539. 

(A)  EARNING POWER IS THE PRIMARY CRITERION OF VALUE IN
REORGANIZATION PROCEEDINGS UNDER SEC. 77.  P. 540. 

(B)  THE LIMITED EXTENT TO WHICH SEC. 77(E) PROVIDES THAT
REPRODUCTION COST, ORIGINAL COST, AND ACTUAL INVESTMENT MAY BE
CONSIDERED INDICATES THAT THESE FACTORS ARE RELEVANT, AS IN SEC. 77B,
ONLY SO FAR AS THEY BEAR ON EARNING POWER.  P. 541. 

3.  THE EVIDENCE OF CHANGED CIRCUMSTANCES SINCE THE COMMISSION'S
APPROVAL OF THE PLAN, WAS INSUFFICIENT TO REQUIRE THE DISTRICT COURT TO
RETURN THE PLAN TO THE COMMISSION FOR RECONSIDERATION.  P. 543. 

EARNING POWER IN WAR YEARS IS NOT A RELIABLE CRITERION FOR THE
INDEFINITE FUTURE.  P. 543. 

4.  THE CONTENTION THAT THE RATIO OF DEBT TO STOCK IN THE REORGANIZED
COMPANY RESULTS IN UNFAIRNESS TO JUNIOR INTERESTS, IS UNSUPPORTED.  P.
544. 

(A)  THE NATURE OF THE CAPITAL STRUCTURE, AS WELL AS THE AMOUNT OF
THE CAPITALIZATION, IS FOR THE DETERMINATION OF THE COMMISSION IN ITS
FORMULATION OF A PLAN WHICH WILL BE "COMPATIBLE WITH THE PUBLIC
INTEREST."  P. 544. 

(B)  QUESTIONS OF THE RATIO OF DEBT TO STOCK, THE AMOUNT OF FIXED AS
DISTINGUISHED FROM CONTINGENT INTEREST, AND THE KIND OF CAPITAL
STRUCTURE WHICH A PARTICULAR COMPANY NEEDS TO SURVIVE THE VICISSITUDES
OF THE BUSINESS CYCLE,  - ARE BY THE ACT RESERVED FOR THE EXPERT
JUDGMENT OF THE COMMISSION, WHICH THE COURTS MUST RESPECT.  P. 545. 

5.  THERE IS NO JUSTIFICATION IN THIS CASE FOR FURTHER DELAY IN
EFFECTUATING THE REORGANIZATION.  P. 545. 

6.  THE EFFECTIVE DATE OF A PLAN OF REORGANIZATION UNDER SEC. 77 NEED
NOT BE THE DATE OF THE FILING OF THE PETITION.  P. 546. 

CLAIMS AFTER THE DATE OF THE FILING OF THE PETITION FOR
REORGANIZATION. 

7.  THE PROPOSED MODIFICATIONS OF THE LEASE OF THE TERRE HAUTE
PROPERTIES, WITH THE ALTERNATIVE OF REJECTION OF THE LEASE IN THE EVENT
OF FAILURE OF ACCEPTANCE OF THE MODIFICATIONS, WERE VALID.  P. 549. 

(A)  THE PROVISIONS OF SEC. 77 AUTHORIZE THE COMMISSION (AND THE
DISTRICT COURT), IN APPROVING A PLAN OF REORGANIZATION, TO CONDITION
ACCEPTANCE OF A LEASE ON TERMS WHICH ARE NECESSARY OR APPROPRIATE TO
KEEP THE FIXED CHARGES WITHIN PROPER LIMITS OR TO DO EQUITY BETWEEN
CLAIMS WHICH ARISE UNDER THE LEASE AND OTHER CLAIMS AGAINST THE
DEBTOR.  P. 550. 

(B)  THE DETERMINATION OF THE COMMISSION AND THE DISTRICT COURT AS TO
WHETHER A LEASE SHOULD BE REJECTED, OR, IF NOT, ON WHAT TERMS IT SHOULD
BE ACCEPTED, OUGHT NOT TO BE SET ASIDE UPON REVIEW, EXCEPT ON A CLEAR
SHOWING THAT THE LIMITS OF DISCRETION HAVE BEEN EXCEEDED.  P. 551. 

(C)  THE PROVISION OF THE PLAN THAT THE TERRE HAUTE LEASE SHALL BE
REJECTED AS OF THE DATE THE DISTRICT COURT DETERMINES THAT THE TERRE
HAUTE BONDHOLDERS HAVE NOT CONSENTED TO THE MAKING OF A NEW LEASE AT A
REDUCED RENTAL, IS VALID.  P. 551. 

(D)  IN THE EVENT OF REJECTION OF THE LEASE, PURSUANT TO A PLAN OF
REORGANIZATION, OPERATION SUBSEQUENT TO THE COMMENCEMENT OF THE
PROCEEDINGS AND PRIOR TO THE REJECTION NEED NOT BE FOR THE ACCOUNT OF
THE LESSOR.  P. 552. 

(E)  WHEN A LEASE IS REJECTED PURSUANT TO A PLAN, SEC. 77(C)(6) MAY
NOT BE SO APPLIED AS TO GIVE THE LESSOR OR ITS CREDITORS A
DISPROPORTIONATE CLAIM AGAINST THE ESTATE.  P. 555. 

8.  THE FINDINGS AND CONCLUSIONS OF THE COMMISSION AND THE DISTRICT
COURT WITH RESPECT TO THE ALLOCATION OF NEW SECURITIES TO THE HOLDERS
OF GENERAL MORTGAGE BONDS, WERE ADEQUATE AND PROPER.  P. 555. 

(A)  THAT SYSTEM MORTGAGES SHOULD BE SUBSTITUTED FOR DIVISIONAL ONES
WAS A DETERMINATION WHICH WAS PECULIARLY WITHIN THE PROVINCE OF THE
COMMISSION TO MAKE.  P. 558. 

(B)  THE TREATMENT OF THE GENERAL MORTGAGE BONDS WAS NOT INEQUITABLE
AS COMPARED WITH THAT ACCORDED THE 50-YEAR BONDS.  P. 562. 

(C)  THE COMMISSION AND THE DISTRICT COURT HAD BEFORE THEM SUFFICIENT
DATA FROM WHICH TO DETERMINE THE ALLOCATION OF NEW SECURITIES AS
BETWEEN HOLDERS OF THE GENERAL MORTGAGE BONDS AND HOLDERS OF THE 50
YEAR BONDS; AND IT CAN NOT BE SAID THAT AN INCORRECT RULE OF LAW WAS
APPLIED IN CONCLUDING THAT THE PLAN WAS FAIR AND EQUITABLE AS BETWEEN
THESE TWO CLASSES OF BONDHOLDERS.  P. 562. 

(D)  THE DETERMINATION BY THE COMMISSION AND THE DISTRICT COURT THAT,
SO FAR AS THE HOLDERS OF THE GENERAL MORTGAGE AND 50-YEAR BONDS WERE
CONCERNED, THE REQUIREMENTS OF THE FULL PRIORITY RULE WERE COMPLIED
WITH, IS SUPPORTED BY THE EVIDENCE.  P. 563. 

(E)  THE TREATMENT OF THE GENERAL MORTGAGE BONDS, AS COMPARED WITH
THE MILWAUKEE & NORTHERN FIRST MORTGAGE BONDS AND CONSOLIDATED MORTGAGE
BONDS, WAS FAIR AND EQUITABLE.  P. 563. 

9.  IN ORDER TO GIVE "FULL COMPENSATORY TREATMENT" TO SENIOR
CLAIMANTS AND TO APPROPRIATE TO THE PAYMENT OF THEIR CLAIMS THE "FULL
VALUE" OF THE PROPERTY, IT IS NOT ESSENTIAL THAT A DOLLAR VALUATION BE
MADE OF EACH OLD SECURITY AND OF EACH NEW SECURITY.  P. 564. 

(A)  A REQUIREMENT THAT DOLLAR VALUES BE PLACED ON WHAT EACH SECURITY
HOLDER SURRENDERS AND ON WHAT HE RECEIVES WOULD CREATE AN ILLUSION OF
CERTAINTY WHERE NONE EXISTS AND WOULD PLACE AN IMPRACTICABLE BURDEN ON
THE WHOLE REORGANIZATION PROCESS.  P. 565. 

(B)  IT IS SUFFICIENT THAT EACH SECURITY HOLDER IN THE ORDER OF HIS
PRIORITY RECEIVES FROM THAT WHICH IS AVAILABLE FOR THE SATISFACTION OF
HIS CLAIM THE EQUITABLE EQUIVALENT OF THE RIGHTS SURRENDERED.  P. 565. 

(C)  WHETHER IN A GIVEN CASE SENIOR CREDITORS HAVE BEEN MADE WHOLE OR
RECEIVED "FULL COMPENSATORY TREATMENT" RESTS IN THE INFORMED JUDGMENT
OF THE COMMISSION AND THE DISTRICT COURT ON CONSIDERATION OF ALL
RELEVANT FACTS.  P. 566. 

10.  THE PROVISION IN THE PLAN OF REORGANIZATION FOR AN ADDITIONS AND
BETTERMENTS FUND WAS PROPER.  P. 566. 

11.  THE CONTENTION OF THE GENERAL MORTGAGE BONDHOLDERS THAT, BY
REASON OF THE AFTER-ACQUIRED PROPERTY CLAUSE IN THEIR MORTGAGE, THEY
HAVE A FIRST LIEN ON SO-CALLED "PIECES OF LINES EAST," THE EARNINGS
FROM WHICH WERE CREDITED BY THE COMMISSION TO THE 50-YEAR BONDS - A
CLAIM AMDE IN BOTH COURTS BELOW BUT NOT DETERMINED - SHOULD BE RESOLVED
BY THE DISTRICT COURT.  P. 568. 

(A)  THE OBJECTION CAN NOT BE TREATED AS DE MINIMIS.  NOR CAN IT BE
CONCLUDED THAT THE OBJECTION HAS BEEN WAIVED OR THAT THE CLAIM IS
FRIVOLOUS.  P. 568. 

(B)  THE DETERMINATION OF WHAT ASSETS ARE SUBJECT TO THE PAYMENT OF
THE RESPECTIVE CLAIMS HAS A DIRECT BEARING ON THE FAIRNESS OF THE PLAN
AS BETWEEN TWO GROUPS OF BONDHOLDERS.  P. 569. 

12.  SINCE JUNIOR INTERESTS ARE PARTICIPATING IN THE PLAN, THE
COMMISSION AND THE DISTRICT COURT SHOULD DETERMINE WHAT THE GENERAL
MORTGAGE BONDS SHOULD RECEIVE IN ADDITION TO A FACE AMOUNT OF INFERIOR
SECURITIES EQUAL TO THE FACE AMOUNT OF THEIR OLD ONES, AS EQUITABLE
COMPENSATION, QUALITATIVE OR QUANTITATIVE, FOR THE LOSS OF THEIR SENIOR
RIGHTS.  P. 569. 

13.  THE CLAIMS OF THE 50-YEAR BONDS AS WELL AS THOSE OF THE GENERAL
MORTGAGE BONDS REQUIRE THAT FINDINGS BE MADE IN RESPECT OF THE MATTERS
REFERRED TO IN PARAGRAPHS 11 AND 12, SUPRA; AND FINAL APPROVAL OF THE
PLAN AS IT AFFECTS BOTH GROUPS IS DEPENDENT THEREON.  P. 571. 

14.  WHETHER EARNINGS SEGREGATION, SEVERANCE, OR CONTRIBUTED TRAFFIC
STUDIES SHOULD BE MADE IS FOR THE COMMISSION INITIALLY TO DETERMINE. 
THIS COURT IS UNABLE TO SAY THAT SUCH STUDIES ARE INDISPENSABLE IN THIS
CASE.  P. 572. 

15.  THE COMMISSION'S CONCLUSION THAT NO ALLOWANCE SHOULD BE MADE IN
THE PLAN FOR INTEREST ON THE ADJUSTMENT BONDS SUBSEQUENT TO THE DATE OF
THE FILING OF THE PETITION, WAS JUSTIFIED.  P. 573. 

GROUP OF INSTITUTIONAL INVESTORS ET AL. V. CHICAGO, MILWAUKEE, ST.
PAUL & PACIFIC RAILROAD CO.* 

*TOGETHER WITH NO. 12, GROUP OF INSTITUTIONAL INVESTORS ET AL. V.
UNION TRUST CO. ET AL.; NO. 13, GROUP OF INSTITUTIONAL INVESTORS ET AL.
V. ABRAMS ET AL.; NO. 14, GROUP OF INSTITUTIONAL INVESTORS ET AL. V.
ORTON ET AL.; NO. 15, GROUP OF INSTITUTIONAL INVESTORS ET AL. V.
GUARANTY TRUST CO. OF NEW YORK ET AL.; NO. 16, GROUP OF INSTITUTIONAL
INVESTORS ET AL. V. CHICAGO, TERRE HAUTE & SOUTHEASTERN RY. CO. ET AL.;
NO. 17, GROUP OF INSTITUTIONAL INVESTORS ET AL. V. UNITED STATES TRUST
CO. OF NEW YORK, TRUSTEE; NO. 18, GROUP OF INSTITUTIONAL INVESTORS ET
AL. V. TRUSTEES OF PRINCETON UNIVERSITY ET AL.; NO. 19, GROUP OF
INSTITUTIONAL INVESTORS ET AL. V. GLINES ET AL.; AND NO. 32,
RECONSTRUCTION FINANCE CORPORATION V. CHICAGO, MILWAUKEE, ST. PAUL &
PACIFIC RAILROAD CO. ET AL., ALSO ON WRITS OF CERTIORARI, 316 U.S. 659,
TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 316 U.S. 659, TO REVIEW THE REVERSAL OF AN ORDER OF THE
DISTRICT COURT, 36 F.SUPP.  193, APPROVING A PLAN FORMULATED IN
PROCEEDINGS UNDER SEC. 77 OF THE BANKRUPTCY ACT FOR REORGANIZATION OF
THE CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARE COMPANION CASES TO ECKER V. WESTERN PACIFIC R. CORP.,
ANTE, P. 448, AND ARE HERE ON WRITS OF CERTIORARI TO THE CIRCUIT COURT
OF APPEALS FOR THE SEVENTH CIRCUIT.  THEY INVOLVE NUMEROUS QUESTIONS
RELATING TO A PLAN OF REORGANIZATION FOR THE CHICAGO, MILWAUKEE, ST.
PAUL & PACIFIC RAILROAD CO., FORMULATED IN PROCEEDINGS UNDER SEC. 77 OF
THE BANKRUPTCY ACT.  49 STAT. 911, 11 U.S.C. SEC. 205.  THE PLAN WAS
APPROVED BY THE INTERSTATE COMMERCE COMMISSION (239 I.C.C. 485, 240
I.C.C. 257) AND CERTIFIED TO THE DISTRICT COURT.  AFTER A HEARING AND
THE TAKING OF ADDITIONAL EVIDENCE, THE DISTRICT COURT APPROVED THE PLAN
WITH CERTAIN MINOR MODIFICATIONS NOT MATERIAL HERE.  36 F.SUPP.  193. 
THE CIRCUIT COURT OF APPEALS REVERSED THE ORDER OF THE DISTRICT COURT
(124 F.2D 754) ON THE GROUND THAT THE COMMISSION DID NOT MAKE THE
FINDINGS REQUIRED BY CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, 312
U.S. 510. 

THE DEBTOR FILED ITS PETITION UNDER SEC. 77 IN 1935.  HEARINGS ON
PROPOSED PLANS WERE CLOSED IN 1938.  THE PLAN OF REORGANIZATION HERE IN
ISSUE WAS APPROVED BY THE COMMISSION IN 1940.  IT REDUCED THE
CAPITALIZATION AND THE FIXED CHARGES, ELIMINATED THE OLD STOCK, AND
SUBSTITUTED SYSTEM MORTGAGES FOR SO-CALLED DIVISIONAL MORTGAGES.  ITS
EFFECTIVE DATE WAS JANUARY 1, 1939.  THE TOTAL DEBT (INCLUDING INTEREST
ACCRUED TO DECEMBER 31, 1938) WAS APPROXIMATELY $627,000,000.  IN
ADDITION THE DEBTOR HAD $119,307,300 OF PREFERRED STOCK AND 1,174,060
SHARES OF NO-PAR VALUE COMMON STOCK OUTSTANDING.  THE CLAIMS AGAINST
THE DEBTOR WHICH WERE DEALT WITH BY THE PLAN  FN1 ARE AS FOLLOWS:  THE
RECONSTRUCTION FINANCE CORPORATION HAS A CLAIM FOR LOANS TOTALLING
ABOUT $12,000,000, SECURED AS HEREINAFTER DESCRIBED.  THERE ARE GENERAL
MORTGAGE BONDS OUTSTANDING IN THE HANDS OF THE PUBLIC IN THE PRINCIPAL
AMOUNT OF $138,788,000 WITH ACCRUED AND UNPAID INTEREST OF OVER
$17,500,000.  THESE BONDS, BEARING INTEREST AT VARIOUS RATES FROM 3 1/2
TO 4 3/4 PER CENT, HAVE A FIRST LIEN GENERALLY ON THE DEBTOR'S LINES
EAST OF THE MISSOURI RIVER.  IN ADDITION TO THE AMOUNT OF THESE BONDS
PUBLICLY HELD, $11,212,000 PRINCIPAL AMOUNT ARE HELD BY THE
RECONSTRUCTION FINANCE CORPORATION AS SECURITY FOR ITS LOANS.  THERE
ARE $8,923,000 FIRST AND REFUNDING BONDS OUTSTANDING, ALL OF WHICH ARE
HELD BY THE RECONSTRUCTION FINANCE CORPORATION AS SECURITY FOR ITS
LOANS AND CLAIMS.  THESE BONDS HAVE A FIRST LIEN GENERALLY ON THE LINES
WEST OF THE MISSOURI AND A SECOND LIEN ON THE LINES EAST.  THERE ARE
$106,395,096 PRINCIPAL AMOUNT OF 50-YEAR BONDS OUTSTANDING, WITH
ACCRUED AND UNPAID INTEREST OF $20,835,706.  THESE BONDS, SUBJECT ONLY
TO THE FIRST AND REFUNDING BONDS, HAVE A PRIOR LIEN ON THE LINES WEST
OF THE MISSOURI; AND THEY HAVE A LIEN SUBORDINATE TO THE GENERAL
MORTGAGE AND THE FIRST AND REFUNDING BONDS ON THE LINES EAST.  THEY
CARRY INTEREST AT THE RATE OF 5%.  THERE ARE ALSO 5% CONVERTIBLE
ADJUSTMENT BONDS OUTSTANDING IN A PRINCIPAL AMOUNT OF $182,873,693,
WITH ACCRUED AND UNPAID INTEREST OF $79,550,055.  THESE BONDS HAVE THE
MOST JUNIOR LIEN ON BOTH THE LINES WEST AND EAST OF THE MISSOURI
RIVER.  IN ADDITION TO THOSE FOUR MAIN MORTGAGES, THE DEBTOR HAD
ASSUMED LIABILITY ON THE MORTGAGE INDEBTEDNESS OF OTHER COMPANIES WHICH
IT OR ITS PREDECESSOR HAD EITHER PURCHASED OR LEASED.  AMONG THESE WAS
THE MILWAUKEE & NORTHERN RAILROAD CO., WHICH HAD TWO BOND ISSUES:  THE
FIRST MORTGAGE 4 1/2S IN THE PRINCIPAL AMOUNT OUTSTANDING OF $2,117,000
AND ACCRUED AND UNPAID INTEREST OF $103,204, WHICH WERE SECURED BY A
FIRST LIEN ON 110 MILES OF LINE SOUTH OF GREEN BAY, WISCONSIN; AND
CONSOLIDATED MORTGAGE 4 1/2S IN THE PRINCIPAL AMOUNT OUTSTANDING OF
$5,072,000 AND ACCRUED AND UNPAID INTEREST OF $247,260, WHICH WERE
SECURED BY A FIRST LIEN ON 286 MILES OF LINE NORTH OF GREEN BAY AND BY
A SECOND LIEN ON THE LINE SOUTH OF THAT PLACE.  THERE IS ALSO IN THIS
GROUP A $3,000,000 AMOUNT OUTSTANDING OF FIRST MORTGAGE 5S OF CHICAGO,
MILWAUKEE & GARY RY. CO., WITH ACCRUED AND UNPAID INTEREST OF
$562,500.  THEY WERE SECURED BY A FIRST LIEN ON SOME 80 MILES OF
PORTIONS OF TRACK AROUND THE CHICAGO DISTRICT. 

IN ADDITION THERE IS $301,000 PRINCIPAL AMOUNT OF BELLINGHAM BAY &
BRITISH COLUMBIA RAILROAD CO. FIRST MORTGAGE BONDS, OWNED BY THE DEBTOR
AND PLEDGED WITH THE RECONSTRUCTION FINANCE CORPORATION AS SECURITY FOR
ITS LOANS.  FURTHERMORE, THERE ARE FOUR BOND ISSUES OF THE CHICAGO,
TERRE HAUTE & SOUTHEASTERN RY. CO. AND ITS SUBSIDIARIES.  THESE ARE IN
THE PRINCIPAL AMOUNT OUTSTANDING OF $21,929,000, ARE SECURED BY LIENS
ON LINES AND TRACKAGE RIGHTS IN INDIANA AND ILLINOIS, AND CARRY EITHER
4% OR 5% INTEREST.  THE DEBTOR OPERATES THE LINES OF THE TERRE HAUTE
UNDER A 999 YEAR LEASE EXECUTED IN 1921, UNDER WHICH THE LESSEE AGREED
TO MAINTAIN AND REPLACE EQUIPMENT, PAY INTEREST ON AND THE PRINCIPAL OF
THE LESSOR'S BONDS AND TO PAY SPECIFIED ANNUAL EXPENSES.  FN2  THE
ANNUAL RENTAL CONSISTS OF INTEREST ON THE TERRE HAUTE BONDS, TAXES, AND
THE EXPENSE OF MAINTAINING THE CORPORATE EXISTENCE OF THE LESSOR. 

THE PLAN APPROVED BY THE COMMISSION PROVIDES FOR TWO SYSTEM
MORTGAGES.  ONE IS A NEW FIRST MORTGAGE  FN3  WHICH WILL BE A FIRST
LIEN ON ALL PROPERTIES OF THE DEBTOR, SUBJECT ONLY TO THE LIEN OF
EQUIPMENT OBLIGATIONS, AND UNDER WHICH $58,923,171 PRINCIPAL AMOUNT OF
NEW FIRST MORTGAGE 4% BONDS WILL BE ISSUED IN THE REORGANIZATION.  THE
SECOND IS A NEW GENERAL MORTGAGE WHICH WILL BE A LIEN ON THE PROPERTIES
OF THE DEBTOR SUBJECT TO THE LIEN OF THE FIRST MORTGAGE, AND UNDER
WHICH TWO SERIES OF BONDS BEARING 4 1/2% INTEREST CONTINGENT ON
EARNINGS WILL BE ISSUED.  SERIES A BONDS WILL BE ISSUED IN THE
PRINCIPAL AMOUNT OF $57,256,669, AND SERIES B BONDS IN THE PRINCIPAL
AMOUNT OF $51,422,111.  THE INTEREST ON BOTH SERIES A AND SERIES B
BONDS IS CUMULATIVE TO THE MAXIMUM AMOUNT AT ANY ONE TIME OF 13 1/2%,
BUT THE INTEREST ON SERIES A BONDS HAS PRIORITY TO THE INTEREST ON THE
SERIES B. FN4 THE PLAN PROVIDES FOR THE ISSUANCE OF $111,347,846 OF 5%
PREFERRED STOCK AND 2,131,475 1/4 SHARES OF NO-PAR VALUE COMMON STOCK. 
FN5  AS RESPECTS THE TERRE HAUTE PROPERTIES, THE PLAN PROVIDES FOR THE
EXECUTION OF A NEW LEASE BETWEEN THE TERRE HAUTE AND THE NEW COMPANY ON
CONDITION THAT SUBSTANTIALLY ALL OF THE TERRE HAUTE BONDHOLDERS AGREE
TO A MODIFICATION OF THEIR BONDS AND MORTGAGES.  THE MODIFICATIONS
INCLUDE AN EXTENSION OF THE MATURITY OF THE BONDS, A WAIVER OF
EQUIPMENT VACANCIES UNDER THE EXISTING MORTGAGES, A PROVISION FOR THE
ABANDONMENT OF LINES, AND REDUCTION OF THE INTEREST ON THE BONDS SO
THAT THERE IS FIXED INTEREST OF 2.75% AND CONTINGENT INTEREST OF 1.5%,
THE PAYMENT OF THE LATTER BEING SUBJECT TO THE SAME LIMITATIONS AS THE
INTEREST ON THE SERIES A, GENERAL MORTGAGE BONDS.  IN CASE
SUBSTANTIALLY ALL OF THE TERRE HAUTE BONDHOLDERS AGREE TO THE
MODIFICATIONS, A NEW LEASE WILL BE MADE UNDER WHICH THE NEW COMPANY
WILL ASSUME THE PAYMENT OF THE PRINCIPAL OF, AND THE INTEREST ON, THE
MODIFIED BONDS AND THE CORPORATE EXPENSES OF THE TERRE HAUTE.  IF
SUBSTANTIALLY ALL OF THE TERRE HAUTE BONDHOLDERS DO NOT AGREE TO THE
MODIFICATIONS, THE TERRE HAUTE LEASE WILL BE REJECTED AS OF THE DATE
WHEN THE COURT DETERMINES THAT THE MODIFICATIONS HAVE NOT BEEN
APPROVED.  IN CASE OF SUCH DISAFFIRMANCE OF THE LEASE, THE PLAN
RESERVES, AS WE DISCUSS HEREAFTER, 15,837 SHARES OF NEW COMMON STOCK
FOR CERTAIN UNSECURED CLAIMS AND THE CLAIMS WHICH WOULD THEN ARISE
UNDER THE LEASE.  THE PLAN ALSO CALLS FOR THE ESTABLISHMENT OF AN
ADDITIONS AND BETTERMENTS FUND TO WHICH $2,500,000 ANNUALLY WOULD BE
PAID.  THIS ANNUAL CHARGE IS PLACED AHEAD OF CONTINGENT INTEREST.  IT
IS FURTHER PROVIDED THAT THE BOARD OF DIRECTORS MAY SET ASIDE CERTAIN
ADDITIONAL AMOUNTS FOR THAT FUND AFTER THE PAYMENT OF FULL INTEREST ON
THE SERIES A, GENERAL MORTGAGE BONDS AND THE MODIFIED TERRE HAUTE
BONDS.  THE PLAN THUS AUTHORIZES A CAPITALIZATION OF $548,533,321 FOR
THE NEW COMPANY N6, THE PERCENTAGE OF DEBT TO TOTAL CAPITALIZATION
BEING 40.8.  THE ANNUAL CHARGES AHEAD OF DIVIDENDS, INCLUDING FIXED AND
CONTINGENT INTEREST, THE MANDATORY PAYMENT TO THE ADDITIONS AND
BETTERMENTS FUND, AND THE SINKING FUND, ARE APPROXIMATELY $12,532,528. 
WHEN DIVIDENDS ON THE NEW PREFERRED STOCK ARE INCLUDED, THE ANNUAL
CHARGES AHEAD OF DIVIDENDS ON THE COMMON STOCK ARE ABOUT $18,099,920. 

THE COMMISSION ALLOCATED NEW FIRST MORTGAGE BONDS TO THE
RECONSTRUCTION FINANCE CORPORATION FOR 100% OF ITS CLAIM, AFTER
REDUCING THE AMOUNT OF THE CLAIM BY CERTAIN CASH CREDITS.  WE HAVE
ALREADY NOTED THE OFFER WHICH IT MADE TO THE TERRE HAUTE BONDHOLDERS. 
THE MILWAUKEE & NORTHERN FIRST MORTGAGE BONDS WERE TO RECEIVE 70% OF
THEIR CLAIMS IN FIRST MORTGAGE BONDS AND 30% IN SERIES A, GENERAL
MORTGAGE BONDS.  THE MILWAUKEE & NORTHERN CONSOLIDATED MORTGAGE BONDS
WERE TO BE OFFERED 25% OF THEIR CLAIMS IN FIRST MORTGAGE BONDS, 35% IN
SERIES A AND 20% IN SERIES B, GENERAL MORTGAGE BONDS, AND 20% IN
PREFERRED STOCK.  THE SAME PARTICIPATION WAS AFFORDED HOLDERS OF THE
OLD GENERAL MORTGAGE BONDS.  THE OLD 50-YEAR BONDS WERE TO RECEIVE 15%
OF THEIR CLAIMS IN SERIES B, GENERAL MORTGAGE BONDS, 60% IN PREFERRED
STOCK AND 25% IN COMMON STOCK.  THE GARY FIRST MORTGAGE BONDS WERE TO
RECEIVE 75% OF THE AMOUNT OF THEIR CLAIMS IN NEW PREFERRED STOCK AND
25% IN NEW COMMON.  THE CONVERTIBLE ADJUSTMENT BONDS WERE ALLOTTED
1,749,492 SHARES OF COMMON STOCK FOR THEIR CLAIM UPON THE MORTGAGED
ASSETS OF THE DEBTOR.  THE COMMISSION NOTED THAT THE ALLOTMENT OF
STOCK, TAKEN AT $100 A SHARE, WOULD FAIL TO SATISFY THE CLAIM  FN7  OF
THOSE BONDHOLDERS BY $55,471,653.  FOR THAT PORTION OF THEIR CLAIM, THE
BONDHOLDERS WERE PERMITTED TO PARTICIPATE WITH OTHER UNSECURED
CREDITORS IN THE DEBTOR'S FREE ASSETS.  55,000 SHARES OF COMMON STOCK
WERE SET ASIDE AS REPRESENTING "A FAIR PROPORTION OF THE EQUITY OF THE
NEW COMPANY FOR THE UNMORTGAGED ASSETS OF THE DEBTOR."  OF THESE 55,000
SHARES, THE CONVERTIBLE ADJUSTMENT BONDHOLDERS WERE ALLOTTED 39,163
SHARES.  UNSECURED CREDITORS WITH CLAIMS AMOUNTING TO $445,162 AND THE
TERRE HAUTE IN CASE OF REJECTION OF THE LEASE WERE ALLOTTED THE BALANCE
- OR 15,837 SHARES.  THE COMMISSION FOUND THAT "THE EQUITY OF THE
HOLDERS OF THE DEBTOR'S PREFERRED STOCK AND ITS COMMON STOCK HAS NO
VALUE" AND THAT THEREFORE THEY WERE NOT ENTITLED TO PARTICIPATION IN
THE PLAN UNDER THE RULE OF CASE V. LOS ANGELES LUMBER PRODUCTS CO., 308
U.S. 106.  SEE SEC. 77(E). 

WE NEED NOT STOP TO DISCUSS THE RESPECTIVE FUNCTIONS OF THE
COMMISSION AND THE DISTRICT COURT IN RESPECT TO PLANS OF REORGANIZATION
UNDER SEC. 77.  THAT MATTER HAS BEEN FULLY EXPLORED IN THE WESTERN
PACIFIC CASE, ANTE, P. 448.  AGAINST THE BANKGROUND OF THE CONCLUSIONS
THERE REACHED, WE COME TO THE VARIOUS OBJECTIONS TO THE PLAN, PRESSED
ON THE COURTS BELOW AND RENEWED HERE. 

EXCLUSION OF THE STOCKHOLDERS.  THE OBJECTIONS OF THE DEBTOR AND THE
PREFERRED STOCKHOLDERS ARE, IN THE MAIN, THAT THE FINDINGS OF THE
COMMISSION ARE INADEQUATE; THAT IT DID NOT EMPLOY PROPER CRITERIA IN
DETERMINING THE CAPITALIZATION OF THE NEW COMPANY AND IN CONCLUDING
THAT THERE WAS NO EQUITY FOR THE STOCKHOLDERS; AND THAT, HOWEVER PROPER
THE FINDINGS OF THE COMMISSION ON THIS PHASE OF THE CASE MAY HAVE BEEN
WHEN MADE, THE EARNINGS IN 1940, 1941, AND 1942 DEMONSTRATE THAT THE
EARNING POWER OF THE ROAD EXCEEDS THAT WHICH THE COMMISSION FOUND. 

IN DETERMINING THE PERMISSIBLE CAPITALIZATION OF THE NEW COMPANY AND
THE NATURE OF ITS CAPITAL STRUCTURE, THE COMMISSION MADE AN EXTENSIVE
REVIEW OF THE PROPERTIES, BUSINESS, AND EARNINGS OF THE DEBTOR.  IT
REVIEWED FREIGHT AND TOTAL REVENUES, PASSENGER REVENUES AND THEIR
TREND, OPERATING REVENUES AND EXPENSES, AND MAINTENANCE AND EFFICIENCY
OF OPERATION FOR VARIOUS PERIODS ENDING IN 1938.  IT GAVE CONSIDERATION
TO ESTIMATED FUTURE TAXES, EMERGENCY FREIGHT CHARGES, AND CERTAIN WAGE
FACTORS.  IT REVIEWED THE AMOUNTS OF INCOME AVAILABLE FOR PAYMENT OF
INTEREST IN EACH OF THE YEARS FROM 1921 TO 1938.  IT CONSIDERED THE
ORIGINAL COST OF THE PROPERTIES, THE COST OF REPRODUCTION NEW, THE COST
OF REPRODUCTION LESS DEPRECIATION, AND THE VALUE FOR RATE MAKING
PURPOSES - EACH OF WHICH WAS SUBSTANTIALLY IN EXCESS OF THE
CAPITALIZATION WHICH IT AUTHORIZED.  IT STATED THAT ITS OBLIGATION WAS
"TO DEVISE A PLAN THAT WILL SERVE AS A BASIS FOR THE COMPANY'S
FINANCIAL STRUCTURE FOR THE INDEFINITE FUTURE."  IT CONCLUDED THAT A
CAPITALIZATION NOT EXCEEDING $548,533,321 WAS "AS HIGH AS CAN
REASONABLY BE ADOPTED" AFTER CONSIDERATION WAS GIVEN TO "THE PAST AND
PROSPECTIVE EARNINGS OF THE DEBTOR AND ALL OTHER RELEVANT FACTS."  IT
STATED THAT THE FIXED INTEREST PLUS THE MANDATORY PAYMENT TO THE
ADDITIONS AND BETTERMENTS FUND SHOULD BE KEPT "WITHIN THE COVERAGE OF
PAST AVERAGE EARNINGS"; THAT THOSE TOTALS PROVIDED IN THE PLAN WOULD BE
COVERED 1.16 TIMES BY THE AVERAGE EARNINGS FROM 1931 TO 1935, AND 1.18
TIMES FOR THE PERIOD FROM 1932 TO 1936, THOUGH THEY WOULD NOT HAVE BEEN
COVERED IN 1932, 1935 AND 1938.  IT NOTED THAT WHILE THE YEAR 1939
SHOWED AN IMPROVEMENT IN EARNING POWER, IT WOULD REGARD ANY INCREASE IN
FIXED CHARGES "AS HAZARDOUS."  IT SAID THAT A "REASONABLE MARGIN ABOVE
FIXED CHARGES OPERATES NOT ONLY TO THE ADVANTAGE OF THE COMPANY IN
TIMES OF DEPRESSED EARNINGS BUT ALSO TO THE BENEFIT OF THE HOLDERS OF
CONTINGENT INTEREST BONDS AND TO THE MARKETABILITY OF ALL CLASSES OF
THE SECURITIES."  ACCORDINGLY, IT FOUND THAT THE LIMITATION OF FIXED
INTEREST TO $4,269,654 A YEAR WAS "REASONABLE AND PROPER" HAVING REGARD
TO "THE CLEAR DEMANDS OF A CONSERVATIVE POLICY IN THE PRESENT
REORGANIZATION AND THE CLAIMS AND RIGHTS OF THE FIRST-LIEN BONDHOLDERS"
AND THAT THERE WOULD BE "ADEQUATE COVERAGE" OF THE AMOUNT OF FIXED
CHARGES PROVIDED IN THE PLAN "BY THE PROBABLE EARNINGS AVAILABLE FOR
THE PAYMENT THEREOF."  FURTHERMORE, IT STATED THAT THE TOTAL DEBT
SHOULD "BEAR A PROPER RELATION TO THE TOTAL CAPITALIZATION, AND SUCH AS
TO MAKE THE PAYMENT OF CONTINGENT INTEREST A PROBABILITY AND OF
DIVIDENDS A REASONABLE PROSPECT, AT LEAST ON THE PREFERRED STOCK."  IT
CONCLUDED THAT IN VIEW OF THE CHARGES AHEAD OF THE PREFERRED STOCK AND
THE EARNINGS RECORD, IT WOULD BE "ENTIRELY UNSOUND" TO INCREASE THE
AMOUNT OF THE CONTINGENT INTEREST DEBT.  AS WE HAVE NOTED, THE
COMMISSION FOUND THAT THE PRESENT PREFERRED AND COMMON STOCK HAVE "NO
VALUE."  AND THE DISTRICT COURT AFFIRMED THAT FINDING, AS WAS NECESSARY
IF THE STOCK WERE TO BE EXCLUDED FROM PARTICIPATION IN THE PLAN.  FN8
AS A BASIS FOR THAT FINDING THE COMMISSION NOTED THAT, ALTHOUGH THE
ORIGINAL COST AND REPRODUCTION COST WAS MUCH HIGHER THAN THE
PERMISSIBLE CAPITALIZATION WHICH IT AUTHORIZED, THE EARNING POWER OF
THE SYSTEM DID NOT JUSTIFY INCLUSION OF THE OLD STOCK.  IT SAID THAT NO
DIVIDENDS HAD BEEN PAID ON THE STOCK SINCE 1917, THAT ESTIMATED FUTURE
"NORMAL EARNINGS" WERE $15,894,000 A YEAR, AND THAT WHEN "THESE AMOUNTS
ARE COMPARED WITH THE ANNUAL INTEREST CHARGES ON THE PRINCIPAL OF THE
PRESENT DEBT, $23,739,000 A YEAR, IT IS EVIDENT THAT THE EARNING POWER
OF THE SYSTEM SINCE THE PERIOD OF PEAK EARNINGS (1928-1929) IS ENTIRELY
INADEQUATE TO COVER THE PRINCIPAL OF THE DEBT, DISREGARDING MORE THAN
$118,000,000 OF UNPAID INTEREST."  IT ADDED THAT THERE WAS "NO EVIDENCE
WHATEVER" TO INDICATE THAT A RECOVERY OF EARNING POWER OF THE PEAK
PERIODS WAS "REASONABLY PROBABLE," BUT THAT IT WAS "A REMOTE
POSSIBILITY ONLY, WHICH MAY NOT BE UTILIZED TO SUPPORT A FINDING" THAT
THE STOCK HAS "AN EQUITY."  IT ALSO FOUND THAT, "UNDER ALL PERTINENT
FACTS AND CONSIDERATIONS, THE PROBABILITIES OF THE PROPERTY EARNING
SUFFICIENT TO PAY DIVIDENDS ON ANY SECURITIES THAT COULD PROPERLY BE
REPRESENTED BY WARRANTS ISSUED UNDER THE PLAN ARE TOO REMOTE TO JUSTIFY
PROVISION IN THE PLAN FOR SUCH WARRANTS," EVEN THOUGH THE WARRANTS
PROVIDED FOR THEIR EXERCISE ON PAYMENT OF CASH. 

SEC. 77(D) REQUIRES THE COMMISSION WHEN IT RENDERS A REPORT ON A PLAN
OF REORGANIZATION TO "STATE FULLY THE REASONS FOR ITS CONCLUSIONS." 
THE SUMMARY WHICH WE HAVE MADE ON THIS PHASE OF THE CASE PLAINLY SHOWS
THAT THE COMMISSION DID EXACTLY THAT.  ITS FINDING THAT THE STOCK HAD
NO VALUE WAS DEFINITE AND EXPLICIT.  TO REQUIRE IT TO GO FURTHER AND
FORMALIZE IN FINDINGS THE NUMEROUS DATA ON WHICH IT RELIED IN THE
EXERCISE OF ITS EXPERT, INFORMED JUDGMENT WOULD BE TO ALTER THE
STATUTORY SCHEME.  APART FROM THE NECESSITY OF MAKING A FINDING FOR THE
EXCLUSION OF STOCK OR ANY CLASS OF CREDITORS AS PROVIDED IN SEC. 77(E),
THE MANDATE WHICH CONGRESS GAVE THE COMMISSION BY SEC. 77(D) IS MERELY
TO APPROVE A PLAN "THAT WILL IN ITS OPINION MEET WITH THE REQUIREMENTS
OF SUBSECTIONS (B) AND (E) OF THIS SECTION, AND WILL BE COMPATIBLE WITH
THE PUBLIC INTEREST."  REASONS WHICH UNDERLIE THE EXPERT OPINION WHICH
THE COMMISSION EXPRESSES ON A PLAN OF REORGANIZATION UNDER SEC. 77 NEED
NOT BE MARSHALLED AND LABELLED AS FINDINGS IN ORDER TO MAKE
INTELLIGIBLE THE COMMISSION'S CONCLUSION OR ULTIMATE FINDING OR TO MAKE
POSSIBLE THE PERFORMANCE ON THE PART OF THE COURTS OF THE FUNCTIONS
DELEGATED TO THEM.  HERE, AS IN OTHER SITUATIONS (COLORADO V. UNITED
STATES, 271 U.S. 153, 166-169; UNITED STATES V. LOUISIANA, 290 U.S. 70,
76-77; FLORIDA V. UNITED STATES, 292 U.S. 1, 8-9), IT IS THE CONCLUSION
OR ULTIMATE FINDING OF THE COMMISSION TOGETHER WITH ITS REASONS AND
SUPPORTING DATA WHICH ARE ESSENTIAL.  CONGRESS HAS REQUIRED NO MORE. 
NOR WAS IT NECESSARY FOR THE COMMISSION TO MAKE A PRECISE FINDING AS TO
THE VALUE OF THE ROAD IN ORDER TO ELIMINATE THE OLD STOCK FROM THE
PLAN.  A FINDING AS TO THE PRECISE EXTENT OF THE DEFICIENCY IS NOT
MATERIAL OR GERMANE TO THE FINDING OF "NO VALUE" PRESCRIBED BY SEC.
77(E). 

BUT IT IS URGED THAT THE COMMISSION EMPLOYED THE INCORRECT CRITERIA
FOR DETERMINING THE PERMISSIBLE CAPITALIZATION OF THE NEW COMPANY.  IN
THIS CONNECTION, RELIANCE IS PLACED ON SEC. 77(E), WHICH PROVIDES IN
PART THAT THE "VALUE OF ANY PROPERTY USED IN RAILROAD OPERATION SHALL
BE DETERMINED ON A BASIS WHICH WILL GIVE DUE CONSIDERATION TO THE
EARNING POWER OF THE PROPERTY, PAST, PRESENT, AND PROSPECTIVE, AND ALL
OTHER RELEVANT FACTS.  IN DETERMINING SUCH VALUE ONLY SUCH EFFECT SHALL
BE GIVEN TO THE PRESENT COST OF REPRODUCTION NEW AND LESS DEPRECIATION
AND ORIGINAL COST OF THE PROPERTY, AND THE ACTUAL INVESTMENT THEREIN,
AS MAY BE REQUIRED UNDER THE LAW OF THE LAND, IN LIGHT OF ITS EARNING
POWER AND ALL OTHER RELEVANT FACTS."  IT IS ARGUED THAT, UNDER THIS
PROVISION, EARNING POWER IS NOT THE PRIMARY CRITERION OF VALUE AND THAT
THE COMMISSION DID NOT GIVE PROPER WEIGHT TO ORIGINAL COST,
REPRODUCTION COST NEW, OR THE VALUATION FOR RATE MAKING PURPOSES.  WE
DISAGREE.  WE RECENTLY STATED IN CONSOLIDATED ROCK PRODUCTS CO. V. DU
BOIS, SUPRA, IN CONNECTION WITH A REORGANIZATION OF AN INDUSTRIAL
COMPANY, THAT THE "CRITERION OF EARNING CAPACITY IS THE ESSENTIAL ONE
IF THE ENTERPRISE IS TO BE FREED FROM THE HEAVY HAND OF PAST ERRORS,
MISCALCULATIONS OR DISASTER, AND IF THE ALLOCATION OF SECURITIES AMONG
THE VARIOUS CLAIMANTS IS TO BE FAIR AND EQUITABLE."  P. 526.  THAT IS
EQUALLY APPLICABLE TO A RAILROAD REORGANIZATION.  MR. JUSTICE BRANDEIS
ONCE STATED THAT "VALUE IS A WORD OF MANY MEANINGS."  SEE SOUTHWESTERN
BELL TELEPHONE CO. V. PUBLIC SERVICE COMM'N, 262 U.S. 276, 310,
CONCURRING OPINION.  IT GATHERS ITS MEANING IN A PARTICULAR SITUATION
FROM THE PURPOSE FOR WHICH A VALUATION IS BEING MADE.  THUS THE
QUESTION IN A VALUATION FOR RATE MAKING IS HOW MUCH A UTILITY WILL BE
ALLOWED TO EARN.  THE BASIC QUESTION IN A VALUATION FOR REORGANIZATION
PURPOSES IS HOW MUCH THE ENTERPRISE IN ALL PROBABILITY CAN EARN. 
EARNING POWER WAS THE PRIMARY TEST IN FORMER RAILROAD REORGANIZATIONS
UNDER EQUITY RECEIVERSHIP PROCEEDINGS.  TEMMER V. DENVER TRAMWAY CO.,
18 F.2D 226, 229; NEW YORK TRUST CO. V. CONTINENTAL & COMMERCIAL BANK,
26 F.2D 872, 874.  THE REASONS WHY IT IS THE APPROPRIATE TEST ARE
APPARENT.  A BASIC REQUIREMENT OF ANY REORGANIZATION IS THE
DETERMINATION OF A CAPITALIZATION WHICH MAKES IT POSSIBLE NOT ONLY TO
RESPECT THE PRIORITIES OF THE VARIOUS CLASSES OF CLAIMANTS BUT ALSO TO
GIVE THE NEW COMPANY A REASONABLE PROSPECT FOR SURVIVAL.  SEE
COMMISSIONER EASTMAN DISSENTING, CHICAGO, M. & ST. P. REORGANIZATION,
131 I.C.C. 673, 705.  ONLY "METICULOUS REGARD FOR EARNING CAPACITY"
(CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, SUPRA, P. 525) CAN AFFORD
THE OLD SECURITY HOLDERS PROTECTION AGAINST A DILUTION OF THEIR
PRIORITIES AND CAN GIVE THE NEW COMPANY SOME SAFEGUARDS AGAINST THE
SCOURGE OF OVERCAPITALIZATION.  DISREGARD OF THAT METHOD OF VALUATION
CAN ONLY BRING, AS STATED BY JUDGE EVANS FOR THE COURT BELOW, "A
HARVEST OF BARREN REGRETS."  124 F.2D P. 765.  CERTAINLY THERE IS NO
CONSTITUTIONAL REASON WHY EARNING POWER MAY NOT BE UTILIZED AS THE
CRITERION FOR DETERMINING VALUE FOR REORGANIZATION PURPOSES.  AND IT IS
OUR VIEW THAT CONGRESS WHEN IT PASSED SEC. 77 MADE EARNING POWER THE
PRIMARY CRITERION.  THE LIMITED EXTENT TO WHICH SEC. 77(E) PROVIDES
THAT REPRODUCTION COST, ORIGINAL COST, AND ACTUAL INVESTMENT MAY BE
CONSIDERED INDICATES THAT (APART FROM DOUBTS CONCERNING CONSTITUTIONAL
POWER TO DISREGARD THEM) SUCH OTHER VALUATIONS WERE NOT DEEMED RELEVANT
UNDER SEC. 77 ANY MORE THAN UNDER SEC. 77B "EXCEPT AS THEY MAY
INDIRECTLY BEAR ON EARNING CAPACITY."  CONSOLIDATED ROCK PRODUCTS CO.
V. DU BOIS, SUPRA, P. 526.  IN THIS CASE THE COMMISSION FOLLOWED THE
STATUTE.  WHILE IT MADE EARNING POWER THE PRIMARY CRITERION, IT DID NOT
DISREGARD THE OTHER VALUATIONS.  IT CONSIDERED THEM AND CONCLUDED IN
SUBSTANCE THAT THEY AFFORDED NO REASONABLE BASIS FOR BELIEVING THAT THE
PROBABLE EARNING POWER OF THE ROAD WAS GREATER THAN WHAT THE COMMISSION
HAD FOUND IT TO BE BY THE USE OF OTHER STANDARDS.  THE COMMISSION NEED
NOT DO MORE. 

THE FINDING OF THE COMMISSION, AFFIRMED BY THE DISTRICT COURT UNDER
SEC. 77(E), THAT THE STOCK HAD "NO VALUE" IS SUPPORTED BY EVIDENCE. 
THE ISSUE INVOLVED IN SUCH A DETERMINATION IS WHETHER THERE IS A
REASONABLE PROBABILITY THAT THE EARNING POWER OF THE ROAD WILL BE
SUFFICIENT TO PAY PRIOR CLAIMS OF INTEREST AND PRINCIPAL AND LEAVE SOME
SURPLUS FOR THE SERVICE OF THE STOCK.  IF IT IS ESTABLISHED THAT THERE
IS NO REASONABLE PROBABILITY OF SUCH EARNING POWER, THEN THE INCLUSION
OF THE STOCK WOULD VIOLATE THE FULL PRIORITY RULE OF NORTHERN PACIFIC
RY. CO. V. BOYD, 228 U.S. 482 - A RULE OF PRIORITY INCORPORATED IN SEC.
77(E)(1), AS IN SEC. 77B AND CH. X (CASE V. LOS ANGELES LUMBER PRODUCTS
CO., SUPRA; MARINE HARBOR PROPERTIES V. MANUFACTURERS TRUST CO., 317
U.S. 78) THROUGH THE PHRASE "FAIR AND EQUITABLE."  A VALUATION FOR
REORGANIZATION PURPOSES BASED ON EARNING POWER REQUIRES OF COURSE AN
APPRAISAL OF MANY FACTORS WHICH CANNOT BE REDUCED TO A FIXED FORMULA. 
IT ENTAILS A PREDICTION OF FUTURE EVENTS.  HENCE "AN ESTIMATE, AS
DISTINGUISHED FROM MATHEMATICAL CERTITUDE, IS ALL THAT CAN BE MADE." 
CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, SUPRA, P. 526.  BUT
RECOGNIZING THE POSSIBLE MARGIN OF ERROR IN ANY SUCH PREDICTION, WE
CANNOT SAY THAT THE EXPERT JUDGMENT OF THE COMMISSION WAS ERRONEOUS
WHEN MADE OR THAT THE DISTRICT COURT WAS NOT JUSTIFIED IN AFFIRMING THE
FINDING OF "NO VALUE." 

THE QUESTION OF THE INCREASE IN EARNINGS SINCE THE COMMISSION
APPROVED THE PLAN RAISES OF COURSE DIFFERENT ISSUES.  AS WE HAVE
INDICATED IN THE WESTERN PACIFIC CASE, THE POWER OF THE DISTRICT COURT
TO RECEIVE ADDITIONAL EVIDENCE MAY AID IT IN DETERMINING WHETHER
CHANGED CIRCUMSTANCES REQUIRE THAT THE PLAN BE REFERRED BACK TO THE
COMMISSION FOR RECONSIDERATION.  THE HEARINGS BEFORE THE COMMISSION
WERE CLOSED IN 1938 AND ITS REPORT RENDERED IN 1940.  THE HEARINGS
BEFORE THE DISTRICT COURT WERE HELD IN SEPTEMBER 1940.  IT HAD BEFORE
IT THE TRUSTEES' ANNUAL REPORTS FOR 1937, 1938 AND 1939 AND A STATEMENT
OF OPERATING REVENUES AND INCOME AVAILABLE FOR FIXED CHARGES THROUGH
THE FIRST HALF OF 1940.  SIMILAR FIGURES WERE BEFORE THE CIRCUIT COURT
OF APPEALS FOR MOST OF 1941.  THE DEBTOR AND THE PREFERRED STOCKHOLDERS
CONTEND ON THE BASIS OF THOSE FIGURES THAT THE COMMISSION'S CONCLUSION
THAT THERE IS NO EVIDENCE THAT A "RECOVERY OF THE EARNING POWER OF 1928
29 IS REASONABLY PROBABLE" HAS BEEN DISPROVED BY SUBSEQUENT EVENTS. 
THEY ARGUE THAT WHILE THE NET EARNINGS FOR 1928, 1929 AND 1930 WERE
$30,671,000, $29,105,000 AND $17,938,000 RESPECTIVELY, THOSE FOR 1940
WERE $14,867,000 AND FOR 1941 $28,939,000.  AND THEY POINT OUT THAT THE
NET FOR 1940 WAS ALMOST AS GREAT AS, AND THE NET FOR 1941 WAS MUCH IN
EXCESS OF, THE ESTIMATED $15,894,000 OF NET EARNINGS FOR THE FUTURE
NORMAL YEAR TO WHICH THE COMMISSION REFERRED.  THEY ALSO POINT TO THE
FACT THAT WHILE THAT ESTIMATE INDICATED THAT 12 1/2% OF GROSS WOULD BE
LEFT FOR FIXED CHARGES, THAT PERCENTAGE FOR 1940 WAS 13% AND FOR 1941
20.6%. 

WE AGREE WITH THE CIRCUIT COURT OF APPEALS THAT NO SUFFICIENT SHOWING
OF CHANGED CIRCUMSTANCES HAS BEEN MADE WHICH REQUIRES THE DISTRICT
COURT TO RETURN THE PLAN TO THE COMMISSION FOR RECONSIDERATION.  LATE
IN 1939 THE COMMISSION HAD OCCASION TO SAY, "WE KNOW FROM PAST
EXPERIENCE THAT THE UPSWING IN BUSINESS WHICH WAR BRINGS IS TEMPORARY
AND LIKELY TO BE FOLLOWED BY AN AFTERMATH IN WHICH CONDITIONS MAY BE
WORSE THAN BEFORE."  53D ANNUAL REPORT, P. 5.  THE RECORD DURING THE
LAST WORLD WAR IS ILLUMINATING.  IT SHOWS THAT THE MILWAUKEE'S NET
OPERATING INCOME ROSE TO ALMOST $31,000,000 IN 1916, EXCEEDED
$21,500,000 IN 1917, DROPPED TO ABOUT $4,000,000 IN 1918 AND TO ABOUT
$2,000,000 IN 1919 AND SHOWED A DEFICIT OF OVER $14,000,000 IN 1920. 
SEE CHICAGO, M. & ST. P. REORGANIZATION, 131 I.C.C. 673, 715.  AS WE
HAVE NOTED, THE COMMISSION CONCEIVED AS ITS RESPONSIBILITY THE DEVISING
OF A PLAN WHICH WOULD SERVE "AS A BASIS FOR THE COMPANY'S FINANCIAL
STRUCTURE FOR THE INDEFINITE FUTURE."  WE CANNOT ASSUME THAT THE
FIGURES OF WAR EARNINGS COULD SERVE AS A RELIABLE CRITERION FOR THAT
"INDEFINITE FUTURE."  AS SOME OF THE BONDHOLDERS POINT OUT, THE BULGE
OF WAR EARNINGS PER SE IS UNRELIABLE FOR USE AS A NORM UNLESS HISTORY
IS TO BE IGNORED; AND NUMEROUS OTHER CONSIDERATIONS, PRESENT HERE AS IN
FORMER PERIODS, MAKE THEM SUSPECT AS A STANDARD FOR ANY REASONABLY
LIKELY FUTURE NORMAL YEAR.  AMONG THESE ARE THE GREAT INCREASE IN TAXES
AND IN CERTAIN COSTS OF OPERATION AND THE DECREASE IN WATER AND TRUCK
COMPETITION.  IN ADDITION TO THE INCREASE IN TAX RATES, OF WHICH WE
CANNOT BE UNMINDFUL, THERE IS THE LIKELY INCREASE OF THE TOTAL TAX
BURDEN OCCASIONED BY THE CONVERSION OF DEBT INTO STOCK.  IT IS
ESTIMATED BY CERTAIN BONDHOLDERS THAT BY REASON OF THIS FACT A FULL
DIVIDEND COULD NOT BE PAID ON THE NEW PREFERRED STOCK AND NO DIVIDEND
COULD BE PAID ON THE NEW COMMON STOCK EVEN ON THE BASIS OF EARNINGS AS
GREAT AS THOSE FOR 1941.  IN VIEW OF THESE CONSIDERATIONS, WE CANNOT
SAY THAT THE JUNIOR INTERESTS HAVE CARRIED THE BURDEN WHICH THEY
PROPERLY HAVE OF SHOWING THAT SUBSEQUENT EVENTS MAKE NECESSARY A
REJECTION OF THE COMMISSION'S PLAN. 

BUT IT IS SUGGESTED THAT THE VICE OF THE COMMISSION'S PLAN IS THE
FORMULATION OF A CAPITAL STRUCTURE WHICH AS A RESULT OF CONVERSION OF
DEBT INTO STOCK SO INCREASES THE IMPACT OF MOUNTING TAXES ON THE
COMPANY AS TO DEPRIVE JUNIOR INTERESTS OF NET EARNINGS WHICH WOULD BE
AVAILABLE FOR DISTRIBUTION TO THEM IF THE RATIO OF DEBT TO STOCK WERE
INCREASED.  SUCH A CONVERSION OF DEBT INTO STOCK IS SAID TO BE ENTIRELY
UNNECESSARY TO THE FORMULATION OF A SOUND PLAN AND RESULTS IN
UNFAIRNESS TO JUNIOR INTERESTS.  THE DIFFICULTY WITH THAT ARGUMENT IS
THAT CONGRESS HAS ENTRUSTED THE COMMISSION, NOT THE COURTS, WITH THE
RESPONSIBILITY OF FORMULATING A PLAN OF REORGANIZATION WHICH "WILL BE
COMPATIBLE WITH THE PUBLIC INTEREST."  SEC. 77(D).  THE NATURE OF THE
CAPITAL STRUCTURE, AS WELL AS THE AMOUNT OF THE CAPITALIZATION, IS A
COMPONENT OF "THE PUBLIC INTEREST."  FOR THE "PRESERVATION OF THE
TRANSPORTATION SYSTEM AND THE STABILITY OF ITS CREDIT ESSENTIAL TO ITS
PRESERVATION DEPEND NOT ALONE UPON THE ABILITY OF INDIVIDUAL CARRIERS
TO MEET THEIR OBLIGATIONS, BUT UPON THE ABILITY OF ALL TO ATTRACT THE
INVESTMENT OF FUNDS IN THEIR SECURITIES."  SEE UNITED STATES V.
CHICAGO, M., ST. P. & P.R. CO., 282 U.S. 311, 337(DISSENTING OPINION). 
FURTHERMORE, CONGRESS HAS PROVIDED IN SEC. 77(B)(4) THAT THE FIXED
CHARGES (INCLUDING FIXED INTEREST ON FUNDED DEBT) PROVIDED IN THE PLAN
SHALL BE "IN SUCH AN AMOUNT THAT, AFTER DUE CONSIDERATION OF THE
PROBABLE PROSPECTIVE EARNINGS OF THE PROPERTY IN LIGHT OF ITS EARNINGS
EXPERIENCE AND ALL OTHER RELEVANT FACTS, THERE SHALL BE ADEQUATE
COVERAGE OF SUCH FIXED CHARGES BY THE PROBABLE EARNINGS AVAILABLE FOR
THE PAYMENT THEREOF."  THE RATIO OF DEBT TO STOCK, THE AMOUNT OF FIXED
AS DISTINGUISHED FROM CONTINGENT INTEREST, THE KIND OF CAPITAL
STRUCTURE WHICH A PARTICULAR COMPANY NEEDS TO SURVIVE THE VICISSITUDES
OF THE BUSINESS CYCLE - ALL THESE HAVE BEEN RESERVED BY CONGRESS FOR
THE EXPERT JUDGMENT AND OPINION OF THE COMMISSION, WHICH THE COURTS
MUST RESPECT.  NOR CAN WE CONCLUDE THAT THERE IS ANYTHING IN SEC. 77
WHICH INDICATES THAT IT MAY BE USED MERELY AS A MORATORIUM. 
ELIMINATION OF DELAY IN RAILROAD RECEIVERSHIP AND FORECLOSURE
PROCEEDINGS WAS ONE OF THE PURPOSES OF THE ENACTMENT OF SEC. 77. 
CONTINENTAL BANK V. CHICAGO, R.I. & P. RY. CO., 294 U.S. 648, 685. 
SEC. 77(G), GIVING THE DISTRICT COURT POWER TO DISMISS THE PROCEEDINGS
FOR "UNDUE DELAY IN A REASONABLY EXPEDITIOUS REORGANIZATION," WAS
INSERTED IN RECOGNITION OF "THE NECESSITY OF PROMPT ACTION."  (H. REP.
NO. 1283, 74TH CONG., 1ST SESS., P. 3.)  WE CANNOT CONCLUDE THAT IN
THIS PROCEEDING, WHICH ALREADY HAS BEEN PENDING SEVEN YEARS AND WHICH
WAS BEFORE THE COMMISSION FOR OVER FOUR YEARS, THE INTERESTS OF JUNIOR
CLAIMANTS HAVE BEEN SACRIFICED FOR SPEED.  THE HOUSE JUDICIARY
COMMITTEE ONLY RECENTLY STATED  FN9  THAT "WHERE A RAILROAD COMPANY IS
SO BURDENED WITH A HEAVY CAPITAL STRUCTURE THAT IT IS IN NEED OF
THOROUGHGOING REORGANIZATION, IT IS NOT IN THE PUBLIC INTEREST, NOR
EVEN, EXCEPT TEMPORARILY, IN THE INTEREST OF THE COMPANY ITSELF, THAT
SUCH A REORGANIZATION BE POSTPONED."  H. REP. NO. 2177, 77TH CONG., 2D
SESS., P. 6.  NO CASE HAS BEEN MADE OUT FOR FURTHER DELAY HERE. 

FINALLY, IT IS ARGUED ON BEHALF OF SOME OF THE STOCKHOLDERS THAT THE
EFFECTIVE DATE OF A PLAN PROMULGATED UNDER SEC. 77 MUST BE THE DATE OF
THE FILING OF THE PETITION, THE THEORY BEING THAT SEC. 77 DOES NOT
PERMIT THE ACCRUAL OF INTEREST AFTER THAT DATE.  IN CONSOLIDATED ROCK
PRODUCTS CO. V. DU BOIS, WE HELD THAT, UNDER SEC. 77B, INTEREST ON
SECURED CLAIMS ACCRUED TO THE EFFECTIVE DATE OF THE PLAN WAS ENTITLED
TO THE SAME PRIORITY AS THE PRINCIPAL.  SEE 312 U.S. P. 514, NOTE 4, P.
527, AND CASES CITED.  THE DEFINITION OF THE TERMS "CREDITORS" AND
"CLAIMS" WAS SUBSTANTIALLY THE SAME UNDER SEC. 77B (B) AS IT IS UNDER
SEC. 77.  WE SEE NO REASON WHY THE SAME RESULT SHOULD NOT OBTAIN HERE. 

TREATMENT OF THE TERRE HAUTE BONDS.  THE TREATMENT ACCORDED THESE
BONDS IS ATTACKED BY THE TERRE HAUTE AND REPRESENTATIVES OF ITS
BONDHOLDERS AS WELL AS BY CERTAIN GROUPS OF MILWAUKEE BONDHOLDERS.  THE
TERRE HAUTE INTERESTS CONTEND, IN THE FIRST PLACE, THAT THE PLAN
CONTAINS NO FINDINGS NECESSARY FOR DETERMINING HOW THE SACRIFICES
REQUIRED OF THESE BONDHOLDERS SHALL BE DISTRIBUTED INTER SE.  IT IS
POINTED OUT THAT THE MODIFICATIONS PROPOSED BY THE COMMISSION FOR THESE
FOUR CLASSES OF BONDHOLDERS ARE TO BE MADE REGARDLESS OF THE LIEN,
SECURITY, INTEREST OR MATURITY OF EACH AND THE EARNING POWER OF THE
RESPECTIVE UNDERLYING PROPERTIES.  HENCE IT IS ARGUED THAT THIS PHASE
OF THE PLAN IS NOT FAIR AND EQUITABLE, SINCE IT DOES NOT EVEN ATTEMPT
TO PRESERVE THE RESPECTIVE PRIORITIES OF THESE BOND ISSUES.  THE SHORT
ANSWER TO THAT OBJECTION IS THAT THE TERRE HAUTE PROPERTIES HAVE NOT
BEEN TREATED BY THE COMMISSION OR THE DISTRICT COURT AS A PART OF THE
PROPERTIES OF THE DEBTOR FOR REORGANIZATION PURPOSES.  NOR HAS ANY
QUESTION BEEN RAISED OR ARGUED HERE AS TO THE POWER OF THE COMMISSION
OR THE DISTRICT COURT SO TO TREAT THEM.  THE COMMISSION AND THE
DISTRICT COURT CONSIDERED THE PROBLEM SOLELY AS ONE OF REJECTION OR
AFFIRMANCE OF A LEASE.  THE TERRE HAUTE BONDHOLDERS WERE IN EFFECT
GIVEN THE OPTION TO TAKE THE TERRE HAUTE LINES BACK OR TO AGREE TO A
REDUCED RENTAL.  IF THE COMMISSION HAD AUTHORITY TO DETERMINE THE
QUESTION OF REJECTION IN THE MANNER INDICATED AND IF IT COMPLIED WITH
THE LEGAL REQUIREMENTS FOR THE EXERCISE OF THAT AUTHORITY, THE
MODIFICATIONS WHICH IT PROPOSED AND WHICH THE DISTRICT COURT APPROVED
ARE VALID.  WE THINK THEY ARE. 

IN 1928 THE COMMISSION REVIEWED THE HISTORY OF THE ACQUISITION OF
THIS PROPERTY.  131 I.C.C. 653-660.  IT THEN SAID THAT THE TERRE HAUTE
WAS "A DISTRESS PROPERTY CONTROLLED BY A COMMITTEE OF CHICAGO BANKERS
WHO WANTED TO LIQUIDATE AND WHO HAD WRITTEN THE SECURITIES OFF THE
BOOKS OF THEIR BANKS AS LOSSES" (PP. 657-658); THAT "THE TERMS UPON
WHICH THE PROPERTY WAS ACQUIRED WERE IMPROVIDENT AND TO THAT EXTENT
ADVERSELY AFFECTED THE FINANCIAL CONDITION OF THE ST. PAUL" (P. 657);
AND THAT "THE TOTAL FINANCIAL BURDEN AS OF JUNE 30, 1925, WHICH HAD
FALLEN UPON THE INCOME OF THE ST. PAUL AS A RESULT OF THIS LEASE WAS
NEARLY $11,000,000."  P. 656.  IN ITS PRESENT REPORT THE COMMISSION,
AFTER REVIEWING CERTAIN EARNINGS DATA, CONCLUDED THAT "THE EARNING
POWER OF THE TERRE HAUTE IS SUFFICIENT TO COVER ALL INTEREST
REQUIREMENTS, BUT THIS EARNING POWER IS LARGELY DEPENDENT ON A
CONTINUATION OF THE MILWAUKEE'S COAL TRAFFIC, TOGETHER WITH THE
COMMERCIAL COAL TRAFFIC THAT ACCOMPANIES IT, AND WOULD BE GREATLY
DIMINISHED IF SUCH TRAFFIC CEASED."  AND IT ADDED, "THE PRESENT
ARRANGEMENT IS DISTINCTLY TO THE ADVANTAGE OF THE TERRE HAUTE."  THE
COMMISSION CONCLUDED, HOWEVER, THAT A REJECTION OF THE LEASE WOULD BE
TO THE "DISADVANTAGE" OF BOTH COMPANIES AND THAT SOME MEANS SHOULD BE
PROVIDED "FOR RETAINING THE TERRE HAUTE LINES AS A PART OF THE SYSTEM
WITHOUT UNDULY JEOPARDIZING A SUCCESSFUL REORGANIZATION OF THE
MILWAUKEE."  THE COMMISSION, ON THE OTHER HAND, FELT THAT AN AFFIRMANCE
WOULD BE INEQUITABLE FROM THE POINT OF VIEW OF THE MILWAUKEE
BONDHOLDERS.  THE PRESENT INTEREST CHARGES ON THE TERRE HAUTE ARE ABOUT
$1,023,000 A YEAR.  IF THOSE WERE ASSUMED BY THE NEW COMPANY AND FIXED
INTEREST CHARGES WERE KEPT AT ABOUT $4,270,000 A YEAR AS PROVIDED IN
THE PLAN, THE AMOUNT OF NEW FIRST MORTGAGE BONDS WHICH COULD BE ISSUED
WOULD HAVE TO BE REDUCED BY $10,500,000.  SUCH A REDUCTION, SAID THE
COMMISSION, WOULD MEAN A "SUBSTANTIAL SACRIFICE" BY MILWAUKEE
BONDHOLDERS WHICH WOULD BE "ENTIRELY INEQUITABLE."  IN THAT CONNECTION,
IT ALSO NOTED THAT IF THE $21,929,000 OF TERRE HAUTE BONDS WERE ASSUMED
BY THE NEW COMPANY, THEY WOULD CONSTITUTE ABOUT 27% OF THE TOTAL AMOUNT
OF NEW FIXED INTEREST DEBT.  THIS WOULD MEAN THAT THE ALLOTMENT OF
FIXED INTEREST BONDS TO THE GENERAL MORTGAGE BONDHOLDERS "COULD NOT BE
MORE THAN DOUBLE THE AMOUNT OF THE EXISTING TERRE HAUTE BONDS, WHEREAS
THE MILEAGE REPRESENTED BY THE GENERAL MORTGAGE IS ABOUT 18 TIMES THAT
OF THE TERRE HAUTE, AND ON THE BASIS OF THE ELEMENTS OF VALUE  ...  FOR
THE LINES COVERED BY THE GENERAL MORTGAGE, ABOUT 17 TIMES THAT OF THE
TERRE HAUTE PROPERTIES."  THOSE CONSIDERATIONS OF FAIRNESS CONSTITUTED
THE PRIMARY REASON WHICH LED THE COMMISSION TO REJECT SUCH AN
"INEQUITABLE" PROPOSAL.  BUT THERE WERE OTHER REASONS TOO.  THE EARLY
MATURITIES ON THE TERRE HAUTE BONDS, THE SUBSTANTIAL DEFAULT OF THE
DEBTOR UNDER ITS COVENANT IN THE LEASE TO REPLACE EQUIPMENT,
RESTRICTIONS ON THE ABANDONMENT OF PROPERTY (ALL OF WHICH WERE COVERED
BY THE PROPOSED MODIFICATIONS) ALSO PLAYED A PART IN THE COMMISSION'S
CONCLUSION THAT THE LEASE SHOULD NOT BE ASSUMED BY THE NEW COMPANY. 
THE COMMISSION SAID THAT ITS PROPOSED MODIFICATIONS WERE "THE BEST THAT
WE COULD DEVISE IN THE PUBLIC INTEREST AND AS AFFORDING FAIR AND
EQUITABLE TREATMENT TO BOTH THE BONDHOLDERS OF THE TERRE HAUTE AND
THOSE OF THE DEBTOR."  THE DISTRICT COURT CONCURRED WITH THE COMMISSION
FOR SUBSTANTIALLY THE SAME REASONS.  THE CIRCUIT COURT OF APPEALS SAID
IT COULD NOT APPROVE THAT ACTION WITHOUT MORE SPECIFIC FINDINGS.  JUST
WHAT FINDINGS IT THOUGHT NECESSARY WE DO NOT KNOW.  THE TERRE HAUTE
INTERESTS SUGGEST THAT THE DEFICIENCY WAS IN THE LACK OF ANY FINDING
THAT THE LEASE WAS BURDENSOME.  AND THEY ADD THAT ONLY LEASES FOUND TO
BE BURDENSOME MAY BE REJECTED AND THAT THE EVIDENCE WOULD NOT SUPPORT
ANY SUCH FINDING IF MADE. 

THE ARGUMENT OF THE TERRE HAUTE INTERESTS THAT ONLY BURDENSOME LEASES
MAY BE REJECTED IS BASED ON CERTAIN STATEMENTS OF OURS THAT BURDENSOME
LEASES MAY BE REJECTED (PALMER V. WEBSTER & ATLAS NATIONAL BANK, 312
U.S. 156, 163; PHILADELPHIA CO. V. DIPPLE, 312 U.S. 168, 174) AND ON
CASES LIKE AMERICAN BRAKE SHOE & FOUNDRY CO. V. NEW YORK RYS.  CO., 278
F. 842, 844, WHICH HOLD THAT AN EQUITY RECEIVER MAY NOT REJECT A LEASE
WHEN IT DOES NOT APPEAR THAT "IN CARRYING OUT ITS AFFIRMATIVE
OBLIGATIONS THE ESTATE SUFFERS AN ACTUAL LOSS AS DISTINGUISHED FROM THE
OBTAINING OF A MORE PROFITABLE RENTAL."  AND AN EXTENDED ANALYSIS OF
THE OPERATIONS UNDER THE LEASE IS MADE TO SHOW THAT THE LEASE IS A
VALUABLE ASSET OF THE ESTATE AND THAT THE DEBTOR RECEIVED A NET
FINANCIAL BENEFIT FROM IT IN RECENT YEARS.  WE DO NOT NEED TO
DETERMINE, HOWEVER, WHAT IS THE SCOPE OF THE AUTHORITY TO REJECT LEASES
UNDER SEC. 77, EITHER BY THE TRUSTEES OR PURSUANT TO A PLAN OF
REORGANIZATION.  FOR HERE WE THINK THAT THE PROPOSED MODIFICATIONS OF
THE LEASE CONTAINED IN THE PLAN WERE WHOLLY JUSTIFIED.  THE TERRE HAUTE
BONDHOLDERS ARE "CREDITORS" OF THE DEBTOR AS DEFINED IN SEC. 77(B), FOR
THEY ARE HOLDERS OF "A CLAIM UNDER  ...  AN UNEXPIRED LEASE."  SEC.
77(B)(5) PROVIDES NOT ONLY THAT THE PLAN "MAY" CONTAIN PROVISIONS
REJECTING UNEXPIRED LEASES BUT ALSO THAT IT "MAY INCLUDE ANY OTHER
APPROPRIATE PROVISIONS NOT INCONSISTENT WITH THIS SECTION."  IT IS ALSO
STATED IN SUBSECTION (B)(1) THAT A PLAN "SHALL INCLUDE PROVISIONS
MODIFYING OR ALTERING THE RIGHTS OF CREDITORS GENERALLY, OR OF ANY
CLASS OF THEM, SECURED OR UNSECURED, EITHER THROUGH THE ISSUANCE OF NEW
SECURITIES OF ANY CHARACTER OR OTHERWISE."  IN ADDITION, SEC. 77(B)(4)
PROVIDES THAT THE PLAN "SHALL PROVIDE FOR FIXED CHARGES" INCLUDING
"RENT FOR LEASED RAILROADS" IN SUCH AN AMOUNT "THAT  ...  THERE SHALL
BE ADEQUATE COVERAGE OF SUCH FIXED CHARGES BY THE PROBABLE EARNINGS
AVAILABLE FOR THE PAYMENT THEREOF."  AND SEC. 77(E) REQUIRES THE
DISTRICT COURT TO BE SATISFIED, BEFORE APPROVING THE PLAN, THAT IT IS
"FAIR AND EQUITABLE" AND "DOES NOT DISCRIMINATE UNFAIRLY IN FAVOR OF
ANY CLASS OF CREDITORS."  THESE PROVISIONS TAKEN TOGETHER MEAN TO US
THAT THE COMMISSION (AND THE DISTRICT COURT) HAVE THE AUTHORITY IN
APPROVING A PLAN TO CONDITION ACCEPTANCE OF A LEASE ON TERMS WHICH ARE
NECESSARY OR APPROPRIATE TO KEEP THE FIXED CHARGES WITHIN PROPER LIMITS
OR TO DO EQUITY BETWEEN CLAIMS WHICH ARISE UNDER THE LEASE AND THE
OTHER CLAIMS AGAINST THE DEBTOR.  LIKE THE QUESTION WHETHER A LEASE IS
BURDENSOME (SEE MECK & MASTEN, RAILROAD LEASES AND REORGANIZATION, 49
YALE L. JOURN.  626, 649), ONE PHASE OF THAT PROBLEM IS WHETHER THE
LEASE IS WORTH ITS ANNUAL CHARGE.  A DISREGARD IN THAT DETERMINATION OF
THE SACRIFICES WHICH OTHER CREDITORS ARE MAKING WOULD BE WHOLLY
INCOMPATIBLE WITH THE STANDARDS WHICH SEC. 77 HAS PRESCRIBED FOR
REORGANIZATION PLANS.  AT THE SAME TIME, IF THE COMMISSION DEEMS IT
DESIRABLE TO KEEP THE LEASED LINE IN THE SYSTEM, IT MUST NECESSARILY
HAVE RATHER BROAD DISCRETION IN PROVIDING MODIFICATIONS OF THE LEASE
WHERE, AS HERE, THE LESSOR IS NOT BEING REORGANIZED ALONG WITH THE
DEBTOR.  FOR UNDER THAT ASSUMPTION THE MODIFICATION MUST BE
SUFFICIENTLY ATTRACTIVE TO INSURE ACCEPTANCE BY THE LESSOR OR ITS
CREDITORS.  THUS, THE QUESTION WHETHER A LEASE SHOULD BE REJECTED AND,
IF NOT, ON WHAT TERMS IT SHOULD BE ASSUMED IS ONE OF BUSINESS
JUDGMENT.  SEE MERCANTILE TRUST CO. V. FARMERS' LOAN & TRUST CO., 81 F.
254, 259; PARK V. NEW YORK, L.E. & W.R. CO., 57 F. 799, 802.  CERTAINLY
THERE WAS AMPLE EVIDENCE WARRANTING THE CONCLUSION OF THE COMMISSION
AND THE DISTRICT COURT THAT AFFIRMANCE OF THE LEASE WOULD BE UNJUST
FROM THE VIEWPOINT OF OTHER CREDITORS.  AND WE COULD NOT SAY THAT THE
COMMISSION, EXERCISING ITS EXPERT JUDGMENT, AND THE DISTRICT COURT,
AFFIRMING THAT JUDGMENT, WERE TOO GENEROUS IN THE OFFER WHICH IS MADE
TO THE TERRE HAUTE BONDHOLDERS OR THAT THEY SHOULD HAVE REJECTED THE
LEASE.  WE ARE NOT WARRANTED IN UPSETTING THOSE DETERMINATIONS ON
REVIEW EXCEPT ON A CLEAR SHOWING THAT THE LIMITS OF DISCRETION HAVE
BEEN EXCEEDED.  WE CANNOT SAY THAT HERE. 

FINALLY, THE TERRE HAUTE INTERESTS OBJECT TO THE PROVISIONS OF THE
PLAN WHICH STATE THAT THE TERRE HAUTE LEASE SHALL BE REJECTED AS OF THE
DATE THE DISTRICT COURT DETERMINES THAT THE TERRE HAUTE BONDHOLDERS
HAVE NOT CONSENTED TO THE MAKING OF A NEW LEASE AT A REDUCED RENTAL. 
THEY CONTEND THAT THE LESSOR'S CLAIM FOR DAMAGES FOR BREACH OF THE
LEASE MUST BE MEASURED AS OF THE DATE ON WHICH THE PROCEEDING WAS
INSTITUTED.  THEY FURTHER CONTEND THAT, IN THE EVENT OF REJECTION OF A
LEASE, OPERATION OF THE LEASED PROPERTY SUBSEQUENT TO THE COMMENCEMENT
OF THE PROCEEDING MUST BE FOR THE ACCOUNT OF THE LESSOR - THE LATTER
BEING LIABLE FOR ALL LOSSES AND BEING ENTITLED TO ANY NET EARNINGS.  ON
THE FIRST POINT THEY RELY ON SEC. 77(B), WHICH PROVIDES THAT, IN CASE
AN UNEXPIRED LEASE IS REJECTED, "ANY PERSON INJURED BY SUCH NONADOPTION
OR REJECTION SHALL FOR ALL PURPOSES OF THIS SECTION BE DEEMED TO BE A
CREDITOR OF THE DEBTOR TO THE EXTENT OF THE ACTUAL DAMAGE OR INJURY
DETERMINED IN ACCORDANCE WITH PRINCIPLES OBTAINING IN EQUITY
PROCEEDINGS."  IT IS ARGUED THAT, SINCE THIS COURT HELD THAT THAT
PROVISION PLACES LEASES "UPON THE SAME BASIS AS EXECUTORY CONTRACTS"
(CONNECTICUT RY. CO. V. PALMER, 305 U.S. 493, 502), THE RULE GOVERNING
BREACHES OF AN EXECUTORY CONTRACT (PENNSYLVANIA STEEL CO. V. NEW YORK
CITY RY. CO., 198 F. 721, 744; SAMUELS V. E.F. DREW & CO., 292 F. 734,
739) MUST BE APPLIED HERE.  THIS COURT STATED IN THE PALMER CASE,
HOWEVER, THAT THE PROVISION IN SEC. 77(B) WHICH ALLOWS THE LESSOR TO
PROVE HIS "ACTUAL DAMAGE OR INJURY DETERMINED IN ACCORDANCE WITH
PRINCIPLES OBTAINING IN EQUITY PROCEEDINGS" DOES NOT "REFER TO ANY RULE
FOR THE MEASURE OF DAMAGES IN EQUITY RECEIVERSHIPS."  305 U.S. P. 503. 
FURTHERMORE, AS WE HAVE NOTED, SEC. 77(B) PROVIDES NOT ONLY THAT A PLAN
MAY REJECT UNEXPIRED LEASES BUT ALSO THAT IT "MAY INCLUDE ANY OTHER
APPROPRIATE PROVISIONS NOT INCONSISTENT WITH THIS SECTION."  AND SEC.
77(B)(1) SAYS THAT A PLAN "SHALL INCLUDE PROVISIONS MODIFYING OR
ALTERING THE RIGHTS OF CREDITORS GENERALLY."  FOR THE REASONS WHICH WE
HAVE ALREADY STATED, THESE PROVISIONS GIVE THE COMMISSION AND THE
DISTRICT COURT POWER TO ADJUST THE CLAIMS UNDER THE LEASE SO AS TO DO
EQUITY BETWEEN THE VARIOUS CLASSES OF CREDITORS.  DEFERMENT OF THE DATE
AS OF WHICH THE LEASE SHALL BE REJECTED IS AN APPROPRIATE EXERCISE OF
THAT POWER.  DURING THE SEC. 77 PROCEEDINGS THE STIPULATED ANNUAL
RENTAL UNDER THE LEASE HAS BEEN PAID.  IN VIEW OF ALL THE FACTS, NO
ELEMENT OF INJUSTICE TO THE LESSOR IS APPARENT BY REASON OF THE
DEFERMENT OF THE DATE AS OF WHICH ITS DAMAGES, IF ANY, WILL BE
MEASURED. 

FOR SIMILAR REASONS WE CONCLUDE THAT, IN EVENT OF REJECTION OF THE
LEASE, OPERATION SUBSEQUENT TO THE COMMENCEMENT OF THE PROCEEDING AND
PRIOR TO THE REJECTION NEED NOT BE FOR THE ACCOUNT OF THE LESSOR SO AS
TO ENTITLE IT TO ANY NET EARNINGS.  AS WE HAVE NOTED, THE STIPULATED
ANNUAL RENTAL HAS BEEN PAID DURING THE SEC. 77 PROCEEDINGS.  THE COURT
ORDER AUTHORIZING THE PAYMENT OF INTEREST (WHICH IS PART OF THE RENTAL)
STATED THAT IT SHOULD NOT BE CONSTRUED "TO PRECLUDE OR CONCLUDE THE
DEBTOR IN RESPECT OF ITS RIGHT OF ELECTION TO DISAFFIRM OR DISCONTINUE"
THE LEASE.  AND SEC. 77(B) PROVIDES THAT THE ADOPTION OF AN UNEXPIRED
LEASE BY THE TRUSTEES "SHALL NOT PRECLUDE A REJECTION" OF IT IN A PLAN
OF REORGANIZATION.  FURTHERMORE, SEC. 77(C)(6) PROVIDES: 

"IF A LEASE OF A LINE OF RAILROAD IS REJECTED, AND IF THE LESSEE,
WITH THE APPROVAL OF THE JUDGE, SHALL ELECT NO LONGER TO OPERATE THE
LEASED LINE, IT SHALL BE THE DUTY OF THE LESSOR AT THE END OF A PERIOD
TO BE FIXED BY THE JUDGE TO BEGIN THE OPERATION OF SUCH LINE, UNLESS
THE JUDGE, UPON THE PETITION OF THE LESSOR, SHALL DECREE AFTER HEARING
THAT IT WOULD BE IMPRACTICABLE AND CONTRARY TO THE PUBLIC INTEREST FOR
THE LESSOR TO OPERATE THE SAID LINE, IN WHICH EVENT IT SHALL BE THE
DUTY OF THE LESSEE TO CONTINUE OPERATION ON OR FOR THE ACCOUNT OF THE
LESSOR UNTIL THE ABANDONMENT OF SUCH LINE IS AUTHORIZED BY THE
COMMISSION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1 OF THE
INTERSTATE COMMERCE ACT AS AMENDED." 

SEC. 77(C)(6) CONTAINS NO EXPRESS PROVISION THAT ON REJECTION OF A
LEASE THE OPERATION OF THE PROPERTY BY THE LESSEE SHALL BE FOR THE
ACCOUNT OF THE LESSOR FOR THE PERIOD PRIOR TO THE REJECTION.  BUT THE
TERRE HAUTE INTERESTS SEEK TO READ INTO SEC. 77 THE DOCTRINE OF
RELATION BACK SO THAT IN CASE OF A REJECTION OF THE LEASE THE LESSEE'S
OPERATION DURING THE ENTIRE PERIOD OF BANKRUPTCY IS FOR THE ACCOUNT OF
THE LESSOR, THE LATTER BEING RESPONSIBLE FOR ALL LOSSES AND ENTITLED TO
ALL THE NET EARNINGS.  THAT WAS THE GENERAL RULE GOVERNING RAILROAD
LEASES IN EQUITY RECEIVERSHIP PROCEEDINGS (SEE MECK, RAILROAD LEASES
AND REORGANIZATION, 49 YALE L. JOURN.  1401, 1405-1407), AT LEAST WHERE
THE RECEIVERS OF THE LESSEE MADE NO PAYMENTS OF RENT DURING THE TERM OF
THEIR POSSESSION.  PENNSYLVANIA STEEL CO. V. NEW YORK CITY RY. CO.,
SUPRA, 730-732; AMERICAN BRAKE SHOE & FOUNDRY CO. V. NEW YORK RYS. 
CO., 282 F. 523.  AND SEE UNITED STATES TRUST CO. V. WABASH WESTERN RY.
CO., 150 U.S. 287.  AND THERE IS SOME AUTHORITY FOR THE VIEW THAT THE
SAME RESULT FOLLOWS EVEN THOUGH UNCONDITIONAL PAYMENTS OF RENT HAVE
BEEN MADE IN THE INTERIM, THE THEORY BEING THAT THE RECEIVER MUST "BE
HELD TO HAVE OCCUPIED FROM THE BEGINNING THE SAME POSITION THAT HE
ULTIMATELY ASSUMES."  WESTINGHOUSE ELECTRIC & MFG. CO. V. BROOKLYN
RAPID TRANSIT CO., 6 F.2D 547, 549.  BUT SEE SECOND AVENUE R. CO. V.
ROBINSON, 225 F. 734.  CF. SUNFLOWER OIL CO. V. WILSON, 142 U.S. 313. 
BUT THE RULE WAS NOT A HARD AND FAST ONE.  IT PERMITTED EXCEPTIONS
BASED ON EQUITABLE CONSIDERATIONS.  WESTINGHOUSE ELECTRIC & MFG. CO. V.
BROOKLYN RAPID TRANSIT CO., SUPRA, P. 551.  SO, ALTHOUGH WE ASSUME
ARGUENDO THAT CONGRESS INCORPORATED THE PRIOR EQUITY RULE INTO SEC.
77(C)(6), WHICH RECOGNIZES THE NECESSITY OF KEEPING A RAILROAD IN
OPERATION UNTIL THE PUBLIC AUTHORITY PERMITS DISCONTINUANCE (WARREN V.
PALMER, 310 U.S. 132), IT DOES NOT NECESSARILY FOLLOW THAT THE LESSOR
WOULD BE ENTITLED TO THE NET EARNINGS ACCRUING PRIOR TO THE REJECTION,
AT LEAST WHERE THE TRUSTEES HAVE UNCONDITIONALLY PAID THE STIPULATED
ANNUAL RENTAL FOR THAT PERIOD.  CF. PALMER V. PALMER, 104 F.2D 161.  TO
BE SURE, WE RECOGNIZED IN PALMER V. WEBSTER & ATLAS NATIONAL BANK,
SUPRA, THAT THE TRUSTEES OF A LESSEE ON THEIR REJECTION OF THE LEASE
OPERATED THE LEASED LINES FOR THE ACCOUNT OF THE LESSOR, THE LATTER
BEING LIABLE FOR LOSSES FOR THE WHOLE PERIOD.  BUT WE ARE HERE DEALING
WITH A REJECTION OF A LEASE PURSUANT TO A PLAN OF REORGANIZATION.  AND
THE QUESTION RAISED RELATES TO THE FAIRNESS OF THAT PLAN AS BETWEEN
CLASSES OF CREDITORS - ONE GROUP BEING THE TERRE HAUTE BONDHOLDERS, AND
THE OTHER THE MILWAUKEE BONDHOLDERS.  IN THE EVENT OF A REJECTION OF
THE LEASE, THE TERRE HAUTE INTERESTS ARE CLAIMING THAT THEY ARE
ENTITLED NOT ONLY TO A RETURN OF THE LEASED LINES, TO A CLAIM AGAINST
THE ESTATE FOR DAMAGES, AND TO THE STIPULATED ANNUAL RENTAL UP TO THE
DATE OF THE REJECTION, BUT ALSO TO ANY AND ALL NET INCOME FROM THE
LEASED PROPERTY IN EXCESS OF THAT RENT.  SUCH A CLAIM FOR NET INCOME,
LIKE A CLAIM FOR RENT, WOULD BE A CHARGE AGAINST THE ESTATE FOR WHOSE
PAYMENT A PLAN OF REORGANIZATION MUST PROVIDE.  SEC. 77(E)(3).  THE
AMOUNT OF THOSE CHARGES, LIKE OTHER DEMANDS ON THE CASH RESOURCES OF
THE ESTATE OR THE NEW COMPANY, HAVE A DECIDED BEARING ON THE FAIRNESS
AND INTEGRITY OF A PLAN OF REORGANIZATION.  THE COMMISSION AND THE
DISTRICT COURT CERTAINLY HAVE AUTHORITY TO DETERMINE WHETHER THE TOTAL
AMOUNT WHICH THE LESSOR RECEIVES ON REJECTION OF THE LEASE IS FAIR IN
COMPARISON WITH THE SACRIFICES WHICH THE OTHER CREDITORS MAKE.  THE
DISTRICT COURT AGREED WITH THE COMMISSION THAT IT WOULD BE INEQUITABLE
TO GIVE THE TERRE HAUTE INTERESTS, IN THE EVENT OF A REJECTION, MORE
THAN A RETURN OF THE LEASED LINES, AN UNSECURED CREDITOR'S CLAIM FOR
DAMAGES, AND THE STIPULATED ANNUAL RENTAL.  WE CANNOT SAY THAT THAT WAS
NOT A FAIR EQUIVALENT OF THEIR CLAIM.  NOR CAN WE SAY THAT THEIR
SACRIFICES, AS COMPARED WITH THE SACRIFICES BEING MADE BY THE OTHER
MILWAUKEE CREDITORS, ARE SO GREAT THAT THEY SHOULD RECEIVE AN
ADDITIONAL CASH PAYMENT FROM THE ESTATE.  SEC. 77(C)(6) AND THE
DOCTRINE OF RELATION BACK ARE NOT TO BE CONSIDERED SEPARATE AND APART
FROM THE OTHER PROVISIONS OF THE ACT.  THE END PRODUCT OF THIS
REORGANIZATION SYSTEM IS SUPPOSED TO BE A FAIR PLAN.  WHEN A LEASE IS
REJECTED PURSUANT TO A PLAN, SEC. 77(C)(6) MAY NOT BE APPLIED SO AS TO
GIVE THE LESSOR OR ITS CREDITORS A DISPROPORTIONATE CLAIM AGAINST THE
ESTATE. 

GENERAL MORTGAGE BONDS.  THE OBJECTIONS OF THE CORPORATE TRUSTEE AND
OF A GROUP OF THESE BONDHOLDERS ARE THAT THE ALLOCATION OF NEW
SECURITIES UNDER THE PLAN VIOLATES THEIR PRIORITY RIGHTS, THAT THE
FINDINGS OF THE COMMISSION ARE INADEQUATE TO SUSTAIN THAT ALLOCATION OF
NEW SECURITIES, AND THAT THE ADDITIONS AND BETTERMENTS FUND IMPAIRS
THEIR PRIORITIES. 

THE CIRCUIT COURT OF APPEALS WAS OF THE VIEW THAT THE PLAN COULD NOT
BE APPROVED BECAUSE OF THE ABSENCE OF CERTAIN FINDINGS WHICH IT THOUGHT
WERE NECESSITATED BY CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, SUPRA.
IT CONCLUDED THAT THE FINDINGS MUST INCLUDE SPECIFIC VALUES OF LIENS TO
BE SURRENDERED AND SPECIFIC VALUES OF SECURITIES GIVEN IN EXCHANGE.  IN
ITS VIEW, THIS DEFECT IN THE COMMISSION'S REPORTS PERMEATED THE WHOLE
PLAN EXCEPT THE FINDING OF "NO VALUE" FOR THE STOCK.  AS WE HAVE
POINTED OUT IN THE WESTERN PACIFIC CASE, SUCH A VIEW MISINTERPRETS
CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS.  IN THAT CASE THE DISTRICT
COURT HAD FOUND THAT THE PROPERTIES WERE WORTH MORE THAN THE AMOUNT OF
THE DEBT, IN SPITE OF THE FACT THAT THEY HAD BEEN OPERATED AT A LOSS
FOR A PERIOD OF MORE THAN EIGHT YEARS.  AND IT ADMITTED STOCKHOLDERS TO
PARTICIPATION IN THE PLAN IN THE FACE OF THAT FACT AND ALSO WITHOUT
COMPENSATING THE BONDHOLDERS FOR THEIR ACCRUED INTEREST.  FURTHERMORE,
THE DISTRICT COURT IN THAT CASE APPROVED A DISTRIBUTION OF NEW
SECURITIES TO BONDHOLDERS UNDER TWO DIFFERENT MORTGAGES WITHOUT
ATTEMPTING TO ASCERTAIN WHAT PROPERTIES WERE COVERED BY EACH.  IN
ADDITION, THE PLAN AS APPROVED CANCELLED A CLAIM AGAINST THE HOLDING
CORPORATION WITHOUT MAKING ANY FINDING AS TO ITS AMOUNT OR VALIDITY. 
WE HELD (1) THAT THE "CRITERION OF EARNING CAPACITY IS THE ESSENTIAL
ONE" IN MAKING A VALUATION FOR REORGANIZATION PURPOSES (312 U.S. P.
526); (2) THAT SOME VALUATION OF THE ASSETS OF THE HOLDING COMPANY AND
OF THE CLAIM AGAINST IT MUST BE MADE, SO THAT THERE COULD BE A
DETERMINATION AS TO WHETHER IT, AS STOCKHOLDER, WAS MAKING A
CONTRIBUTION TO THE NEW COMPANY FOR WHICH IT WOULD RECEIVE NEW STOCK;
(3) THAT AT LEAST AN "APPROXIMATE ASCERTAINMENT" OF THE ASSETS SUBJECT
TO THE TWO MORTGAGES MUST BE MADE (312 U.S. P. 525), AS A QUESTION OF
THE FAIRNESS OF THE PLAN BETWEEN THE TWO CLASSES OF BONDHOLDERS HAD
BEEN RAISED; AND (4) THAT IN APPLYING THE FULL PRIORITY RULE OF THE
BOYD CASE (228 U.S. 482) AND THE LOS ANGELES LUMBER PRODUCTS CASE (308
U.S. 106) FULL "COMPENSATORY PROVISION MUST BE MADE FOR THE ENTIRE
BUNDLE OF RIGHTS WHICH THE CREDITORS SURRENDER."  312 U.S. P. 528.  AND
WE ADDED (P. 529), "PRACTICAL ADJUSTMENTS, RATHER THAN A RIGID FORMULA,
ARE NECESSARY.  THE METHOD OF EFFECTING FULL COMPENSATION FOR SENIOR
CLAIMANTS WILL VARY FROM CASE TO CASE."  APPLYING THESE PRINCIPLES
HERE, WE ARE OF THE VIEW THAT, EXCEPT AS HEREINAFTER NOTED, THE
FINDINGS AND CONCLUSIONS OF THE COMMISSION AND THE DISTRICT COURT WERE
ADEQUATE AND PROPER. 

THE OBJECTIONS OF THE GENERAL MORTGAGE BONDS ARE THAT FULL
COMPENSATION WAS NOT AFFORDED THEM FOR THE LOSS OF THEIR FIRST LIEN
POSITION, AND THAT TO SUSTAIN THE ALLOCATION OF NEW SECURITIES TO THEM
IT MUST BE DETERMINED THAT THE NEW SECURITIES HAD IN FACT A VALUE
REPRESENTING COMPENSATION FOR THE PRIORITY OF THE OLD.  WE CAN PUT TO
ONE SIDE AT THIS POINT THE TREATMENT OF THE TERRE HAUTE BONDS AT WHICH
THE GENERAL MORTGAGE BONDS DIRECT SOME OF THEIR CRITICISM.  FOR THE
REASONS WHICH WE HAVE ALREADY STATED, WE CANNOT SUBSTITUTE OUR OPINION
FOR THE BUSINESS JUDGMENT OF THE COMMISSION AND SAY THAT THE TERRE
HAUTE LEASE SHOULD HAVE BEEN REJECTED OUTRIGHT OR THAT THE TERRE HAUTE
INTERESTS WOULD CONSENT TO A NEW LEASE ON LESS FAVORABLE TERMS THAN ARE
OFFERED.  NOR DO WE STOP TO ANALYZE THE FACTS WARRANTING THE PREFERRED
TREATMENT ACCORDED THE AMPLY SECURED CLAIM OF THE RECONSTRUCTION
FINANCE CORPORATION.  FOR NO ARGUMENT IS PRESSED HERE THAT THE
ALLOCATION OF NEW FIRST MORTGAGE BONDS FOR THE FULL AMOUNT OF THAT
CLAIM WAS NOT WARRANTED.  FURTHERMORE, WE CANNOT AGREE WITH THE
SUGGESTION THAT THE GENERAL MORTGAGE BONDS SHOULD HAVE BEEN GRANTED A
LARGER PARTICIPATION IN NEW FIXED INTEREST SECURITIES.  AS WE HAVE
NOTED, 25% OF THEIR CLAIMS IS TO BE SATISFIED WITH THE NEW FIRST
MORTGAGE BONDS.  WE HAVE ALREADY REVIEWED THE REASONS WHY THE
COMMISSION FELT THAT THE FIXED INTEREST CHARGES SHOULD NOT EXCEED ABOUT
$4,270,000 A YEAR.  IT SHOULD BE NOTED AT THIS POINT THAT THE
COMMISSION STATED THAT IT SAW "NO MEANS BY WHICH THE EXACT PRESENT LIEN
POSITION OF THE GENERAL MORTGAGE BONDS OR THE 50-YEAR BONDS CAN BE
PRESERVED EXCEPT UNDER A PROHIBITIVE MORTGAGE STRUCTURE."  AS WE HAVE
STATED, THE DETERMINATION OF THE KIND OF CAPITAL STRUCTURE WHICH A
RAILROAD EMERGING FROM REORGANIZATION SHOULD HAVE IS PECULIARLY A
QUESTION FOR THE EXPERT JUDGMENT OF THE COMMISSION.  TO GIVE THE
GENERAL MORTGAGE BONDS A LARGER PERCENTAGE OF NEW FIRST MORTGAGE BONDS
WOULD NECESSITATE AN INCREASE IN THE TOTAL FIXED INTEREST CHARGES OF
THE NEW COMPANY.  WE WOULD INTRUDE ON THE COMMISSION'S FUNCTION IF WE
UNDERTOOK TO DIRECT THAT ANY SUCH INCREASE BE MADE.  THE SAME REPLY MAY
BE GIVEN THE CONTENTION THAT THE COMMISSION SHOULD NOT HAVE CREATED NEW
SYSTEM MORTGAGES BUT SHOULD HAVE LEFT THE 50-YEAR BONDS SECURED BY A
SEPARATE MORTGAGE OR SHOULD HAVE CREATED A SEPARATE CORPORATION TO
OPERATE THE WESTERN LINES WHICH COMPRISE THE MAIN SECURITY FOR THE 50
YEAR BONDS.  THE COMMISSION CONSIDERED AND REJECTED THESE PROPOSALS,
SAYING THAT IT WAS "OF GREAT IMPORTANCE THAT A COMPLETELY UNIFIED
SYSTEM BE CREATED THROUGH THE REORGANIZATION AND THAT THE CAPITAL
STRUCTURE BE NOT COMPLICATED BY NUMEROUS MORTGAGES."  SUCH A
DETERMINATION IS PECULIARLY ONE FOR THE COMMISSION UNDER SEC. 77.  SO
FAR AS THE LAW IS CONCERNED, THERE IS NO OBSTACLE TO THE SUBSTITUTION
OF SYSTEM MORTGAGES FOR DIVISIONAL ONES.  WE SO HELD IN CONSOLIDATED
ROCK PRODUCTS CO. V. DU BOIS, SUPRA, PP. 530-531, INDICATING THAT THE
REQUIREMENTS OF FEASIBILITY AND PRACTICABILITY MAY OFTEN NECESSITATE
SUCH A COURSE.  THE SAME PRINCIPLES ARE APPLICABLE HERE. 

SO THE PROBLEM FOR US ON THIS PHASE OF THE CASE IS WHETHER, WITHIN
THE FRAMEWORK OF THE CAPITAL STRUCTURE WHICH HAS BEEN DESIGNED, THE
ALLOCATION OF NEW SECURITIES TO THE GENERAL MORTGAGE BONDS WAS
PERMISSIBLE WITHIN THE RULE OF THE BOYD AND THE CONSOLIDATED ROCK
PRODUCTS CASES.  ON THIS RECORD, THAT ENTAILS PRIMARILY A CONSIDERATION
OF THE TREATMENT ACCORDED THE GENERAL MORTGAGE BONDS, ON THE ONE HAND,
AND THE MILWAUKEE & NORTHERN BONDS AND THE 50-YEAR BONDS ON THE OTHER. 

AS WE HAVE NOTED, THE GENERAL MORTGAGE BONDS ARE TO RECEIVE 25% OF
THEIR CLAIMS IN NEW FIRST MORTGAGE BONDS, 35% IN SERIES A AND 20% IN
SERIES B, NEW GENERAL MORTGAGE BONDS, AND 20% IN PREFERRED STOCK.  THE
SAME TREATMENT IS ACCORDED THE MILWAUKEE & NORTHERN CONSOLIDATED
MORTGAGE BONDS.  THE MILWAUKEE & NORTHERN FIRST MORTGAGE BONDS,
HOWEVER, ARE TO RECEIVE 70% OF THEIR CLAIMS IN NEW FIRST MORTGAGE BONDS
AND 30% IN SERIES A NEW GENERAL MORTGAGE BONDS.  AND THE 50-YEAR BONDS
ARE TO RECEIVE 15% OF THEIR CLAIMS IN SERIES B, NEW GENERAL MORTGAGE
BONDS, 60% IN NEW PREFERRED STOCK, AND 25% IN COMMON STOCK.  IF THE
CRITERION OF EARNING POWER BE GIVEN THE WEIGHT WHICH WE THINK IS
NECESSARY UNDER THIS STATUTORY SYSTEM, THE MILWAUKEE & NORTHERN FIRST
MORTGAGE BONDS ARE ENTITLED TO PREFERRED TREATMENT OVER THE GENERAL
MORTGAGE BONDS AND THE MILWAUKEE & NORTHERN CONSOLIDATED BONDS.  ON THE
BASIS OF SYSTEM EARNINGS FOR 1936, THE COMMISSION NOTED THAT INCOME
AVAILABLE FOR THE MILWAUKEE & NORTHERN FIRST MORTGAGE BONDS WAS ABOUT
THREE TIMES INTEREST CHARGES, AND FOR THE GENERAL MORTGAGE BONDS ABOUT
1.16.  IN THE CASE OF THE MILWAUKEE & NORTHERN CONSOLIDATED MORTGAGE
BONDS, THE INTEREST FOR THE SAME PERIOD WAS EARNED ABOUT 1.2 TIMES. 
REGARD FOR THE EARNING POWER OF THOSE RESPECTIVE UNITS OF PROPERTY LED
TO THE PREFERRED TREATMENT OF THE MILWAUKEE & NORTHERN FIRST MORTGAGE
BONDS AND TO THE SAME OFFER BEING MADE TO THE GENERAL MORTGAGE BONDS AS
WAS MADE TO THE MILWAUKEE & NORTHERN CONSOLIDATED MORTGAGE BONDS.  BUT
THE ATTACK OF THE GENERAL MORTGAGE BONDS IS DIRECTED, IN THE MAIN, TO
THE PARTICIPATION ACCORDED THE 50-YEAR BONDS AND TO THE INADEQUACY AS
COMPARED WITH THEM OF THE TREATMENT GIVEN THE GENERAL MORTGAGE BONDS. 

THEY POINT OUT THAT THE COMMISSION REFERRED TO THE GENERAL MORTGAGE
LINES AS "THE HEART OF THE SYSTEM"; THAT THE INTEREST ON THESE BONDS
HAS BEEN EARNED, WITH THE EXCEPTION OF A FEW YEARS, SINCE 1889; THAT
THE WESTERN LINES SECURING THE 50-YEAR BONDS ARE DEFICIT LINES.  IN
THAT CONNECTION THEY REFER TO THE COMMISSION'S STATEMENT THAT THE
LOSSES BY THE WESTERN LINES WERE $142,591 IN 1930 AND $1,540,808 IN
1931, BEFORE PAYMENT OF INTEREST AND THAT "ON ANY REASONABLE BASIS OF
ALLOCATION BETWEEN THE LINES WEST AND THE OTHER PARTS OF THE SYSTEM,
THE LINES WEST CANNOT BE EXPECTED TO EARN ANY SUM FOR THE PAYMENT OF
INTEREST.  IN YEARS WHEN THE SYSTEM EARNINGS APPROACH $10,000,000, SOME
INTEREST IS APPARENTLY EARNED FOR THE 50-YEAR MORTGAGE BONDS UNDER THE
PRESENT CAPITAL STRUCTURE, BUT THIS REFLECTS SYSTEM OPERATION AND DOES
NOT DEMONSTRATE ANY EARNING POWER FOR THE WESTERN LINES."  BUT THE
PROBLEM FOR THE COMMISSION AND THE DISTRICT COURT WAS NOT AS SIMPLE AS
THE GENERAL MORTGAGE BONDHOLDERS MAKE IT APPEAR.  THE LIEN OF THE 50
YEAR BONDS EMBRACES NOT ONLY THE WESTERN LINES BUT ALSO, SUBJECT TO THE
FIRST AND REFUNDING MORTGAGE, THE LEASEHOLD INTEREST OF THE DEBTOR IN
THE TERRE HAUTE AND STOCKS AND BONDS OF OTHER COMPANIES, THE MOST
IMPORTANT OF WHICH ARE SHARES OF INDIANA HARBOR BELT R. CO. AND MOST OF
THE TERRE HAUTE STOCK.  THERE WAS EVIDENCE THAT INCOME FROM CERTAIN
SECURITIES PLEDGED UNDER THE FIRST & REFUNDING MORTGAGE (LARGELY THE
INDIANA HARBOR BELT STOCK) WAS $402,031 IN 1936 AND NET INCOME FROM THE
TERRE HAUTE DURING THAT YEAR WAS $875,327, AFTER PAYMENT OF ALL
INTEREST CHARGES.  THOUGH THE COMMISSION RECOGNIZED THAT THE PROPRIETY
OF CREDITING THE 50-YEAR MORTGAGE WITH INCOME FROM THE TERRE HAUTE WAS
DOUBTFUL BECAUSE OF THE ASSUMPTION THAT THE FIRST & REFUNDING MORTGAGE
WOULD BE SATISFIED BY OTHER EARNINGS, IT GAVE SOME WEIGHT TO THOSE
EARNINGS IN DETERMINING THE PARTICIPATION TO BE ACCORDED THE 50-YEAR
BONDS.  THUS, IT NOTED THAT ONE ANALYSIS IN 1935 SHOWED ABOUT
$1,000,000 AVAILABLE FOR INTEREST ON THE 50-YEAR BONDS, "ON THE BASIS
OF $10,263,185 OF SYSTEM EARNINGS AVAILABLE FOR FIXED CHARGES,
APPROXIMATELY $2,000,000 OF NET INCOME FROM THE TERRE HAUTE, AND A
DEFICIT OF $500,000 ON THE LINES WEST."  THE COMMISSION ALSO REVIEWED
ANOTHER ANALYSIS SHOWING THAT THE FIRST & REFUNDING MORTGAGE LINES
CONTRIBUTED $6,249,099 OF GROSS REVENUES AND $3,300,400 OF NET REVENUES
TO THE GENERAL MORTGAGE LINES IN 1936; AND THAT THE INCOME FOR THE 50
YEAR MORTGAGE LINES (AFTER PAYMENT OF INTEREST ON THE BONDS OF THE
TERRE HAUTE, THE NORTHERN, THE GARY, AND THE FIRST & REFUNDING) WAS
ABOUT $2,000,000, WHILE THE INCOME OF THE GENERAL MORTGAGE LINES
AVAILABLE FOR INTEREST WAS APPROXIMATELY $6,400,000, AFTER INTEREST ON
EQUIPMENT CERTIFICATES.  WHILE THE COMMISSION WAS CRITICAL OF THAT
ANALYSIS, IT FELT THAT THAT COMPUTATION DESERVED "CAREFUL
CONSIDERATION," AS THE ESTIMATE OF $2,000,000 WAS "ROUGHLY COMPARABLE"
TO THE "OTHER ESTIMATE OF $1,000,000 IN 1935, REPRESENTING THE EARNINGS
FOR THE 50-YEAR BONDS, AFTER PAYMENT OF ALL INTEREST ON THE GENERAL
MORTGAGE BONDS."  IT NOTED THAT THE ANALYSIS SHOWING $2,000,000
AVAILABLE FOR THE 50-YEAR BONDS ALSO INDICATED THAT, ON THE BASIS OF
SYSTEM EARNINGS OF ABOUT $12,300,000, ALL INTEREST CHARGES ON THE
GENERAL MORTGAGE BONDS, AND ONLY 38% OF THE INTEREST ON THE 50-YEAR
BONDS, WERE EARNED.  THE EXAMINER HAD RECOMMENDED THAT THE 50-YEAR
BONDS RECEIVE 10% OF THEIR CLAIMS IN SERIES A, NEW GENERAL MORTGAGE
BONDS AND 10% IN SERIES B. THE COMMISSION DID NOT CONSIDER THAT
TREATMENT "TO BE JUSTIFIED ON ANY BASIS OF EARNINGS SHOWN."  IT
CONCLUDED THAT IF THE 50-YEAR BONDS WERE ASSIGNED A PART OF THE NEW
SERIES B BONDS ONLY, THEY WOULD BEGIN "TO SHARE EARNINGS WITH THE
GENERAL MORTGAGE BONDS AND NORTHERN CONSOLIDATED BONDS AFTER $9,675,000
OF PRIOR CHARGES."  THAT TREATMENT, SAID THE COMMISSION, "GOES FAR
TOWARD RESOLVING THE DOUBTS AS TO THE ACCURACY OR FAIRNESS OF THE
ALLOCATION OF EARNINGS IN FAVOR OF THE 50-YEAR BONDS, WITHOUT INJUSTICE
TO THE GENERAL MORTGAGE BONDS." 

THE PROBLEM IN SUCH A CASE IS NOT A SIMPLE ONE.  THE CONTRIBUTION
WHICH EACH DIVISION MAKES TO A SYSTEM IS NOT A MERE MATTER OF
ARITHMETICAL COMPUTATION.  IT INVOLVES AN APPRAISAL OF MANY FACTORS AND
THE EXERCISE OF AN INFORMED JUDGMENT.  FURTHERMORE, AN ATTEMPT TO PUT
PRECISE DOLLAR VALUES ON SEPARATE DIVISIONS OF ONE OPERATING UNIT WOULD
BE QUITE ILLUSORY.  AS THE COMMISSION RECENTLY STATED, "THE PROPERTIES
COMPRISE ONE OPERATING UNIT; A COMPLETE SEPARATION OF VALUES WOULD
NECESSARILY HAVE TO BE BASED ON EXTENSIVE ASSUMPTIONS OF UNPROVABLE
VALIDITY; AND ANY ATTEMPT AT SUCH A SEPARATION WOULD IN THE END SERVE
NO PURPOSE EXCEPT TO PRESENT AN APPARENT CERTAINTY IN THE FORMULATION
OF THE PLAN WHICH DOES NOT EXIST IN FACT."  ST. LOUIS SOUTHWESTERN RY.
CO. REORGANIZATION, 252 I.C.C. 325, 361.  IN THE PRESENT CASE, THE
COMMISSION AND THE DISTRICT COURT WERE SATISFIED THAT THEY HAD ADEQUATE
DATA BASED ON EARNING POWER TO MAKE A FAIR ALLOCATION OF NEW SECURITIES
BETWEEN THE GENERAL MORTGAGE BONDS AND THE 50-YEAR BONDS.  WE CANNOT
SAY THAT IT WAS INADEQUATE.  SEC. 77 CONTAINS NO FORMULA FOR THE MAKING
OF SUCH AN ALLOCATION NOR FOR THE DETERMINATION OF THE EARNING POWER OF
THE ENTIRE SYSTEM OR PARTS THEREOF.  THE EARNINGS PERIODS TO BE CHOSEN,
THE METHODS TO BE EMPLOYED IN ALLOCATING SYSTEM EARNINGS TO THE VARIOUS
DIVISIONS, ARE MATTERS FOR THE INFORMED JUDGMENT OF THE COMMISSION AND
THE COURT.  NOR WAS THERE A FAILURE HERE, AS IN THE CONSOLIDATED ROCK
PRODUCTS CASE, TO ASCERTAIN WHAT PROPERTIES WERE SUBJECT TO THE
RESPECTIVE DIVISIONAL MORTGAGES.  WITH ONE MINOR EXCEPTION, TO BE
DISCUSSED LATER, THAT WAS DONE.  SO THE COMMISSION AND THE COURT HAD
BEFORE THEM DATA WHICH WE CANNOT SAY WAS INADEQUATE TO DETERMINE THE
ALLOCATION OF NEW SECURITIES BETWEEN THESE TWO CLASSES OF BONDHOLDERS. 
NOR CAN WE SAY THAT THE COMMISSION AND THE COURT APPLIED AN INCORRECT
RULE OF LAW IN CONCLUDING THAT THE PLAN WAS "FAIR AND EQUITABLE" AS
BETWEEN THE GENERAL MORTGAGE BONDS AND THE 50-YEAR BONDS.  WE ARE NOT
DEALING HERE MERELY WITH A FIRST MORTGAGE AND A SECOND MORTGAGE ON A
SINGLE PIECE OF PROPERTY.  FOR EACH OF THE TWO GROUPS OF BONDHOLDERS
HAS A FIRST LIEN ON A PART OF THE MILWAUKEE PROPERTIES N10.  IN CASE OF
FIRST AND SECOND LIENS ON THE SAME PROPERTY, SENIOR LIENORS, OF COURSE,
WOULD BE ENTITLED TO RECEIVE, IN CASE THE JUNIOR LIENORS PARTICIPATED
IN THE PLAN, NOT ONLY "A FACE AMOUNT OF INFERIOR SECURITIES EQUAL TO
THE FACE AMOUNT OF THEIR CLAIMS" BUT, IN ADDITION, "COMPENSATION FOR
THE SENIOR RIGHTS" WHICH THEY SURRENDERED.  CONSOLIDATED ROCK PRODUCTS
CO. V. DU BOIS, SUPRA, P. 529.  BUT WHERE, AS HERE, EACH GROUP OF
BONDHOLDERS IS CONTRIBUTING TO A NEW SYSTEM MORTGAGE SEPARATE
PROPERTIES FROM OLD DIVISIONAL MORTGAGES, IT IS NECESSARY TO FIT EACH
INTO THE HIERARCHY OF THE NEW CAPITAL STRUCTURE IN SUCH A WAY THAT EACH
WILL RETAIN IN RELATION TO THE OTHER THE SAME POSITION IT FORMERLY HAD
IN RESPECT OF ASSETS AND OF EARNINGS AT VARIOUS LEVELS.  IF THAT IS
DONE, EACH HAS OBTAINED NEW SECURITIES WHICH ARE THE EQUITABLE
EQUIVALENT OF ITS PREVIOUS RIGHTS, AND THE FULL PRIORITY RULE OF THE
BOYD CASE, AS APPLIED TO THE RIGHTS OF CREDITORS INTER SE, IS
SATISFIED.  THAT RULE WAS APPLIED HERE.  AND THE DETERMINATION BY THE
COMMISSION AND THE DISTRICT COURT THAT ITS REQUIREMENTS WERE SATISFIED
IS SUPPORTED BY EVIDENCE.  SIXTY PER CENT OF THE GENERAL MORTGAGE BONDS
RECEIVES PRIORITY, AS RESPECTS ASSETS AND EARNINGS, OVER THE 50-YEAR
BONDS, SINCE THE FORMER RECEIVE 25% IN NEW FIRST MORTGAGE BONDS AND 35%
IN SERIES A, NEW GENERAL MORTGAGE BONDS, WHILE THE 50-YEAR BONDS WERE
ALLOTTED NONE OF THOSE NEW SECURITIES.  FURTHERMORE, THE GENERAL
MORTGAGE BONDS RECEIVED A LARGER SHARE OF SERIES B BONDS (20% AS
AGAINST 15%), A SMALLER SHARE OF NEW PREFERRED STOCK (20% AS AGAINST
60%) AND NO COMMON STOCK AS COMPARED WITH 25% BY THE 50-YEAR BONDS. 
FOR SIMILAR REASONS, WE CANNOT SAY THAT THE TREATMENT OF THE GENERAL
MORTGAGE BONDS AS AGAINST THE MILWAUKEE & NORTHERN FIRST MORTGAGE BONDS
AND CONSOLIDATED MORTGAGE BONDS WAS NOT FAIR AND EQUITABLE.  NO FIXED
RULE SUPPLIES THE METHOD FOR BRINGING TWO DIVISIONAL MORTGAGES INTO A
NEW CAPITAL STRUCTURE SO THAT EACH WILL RETAIN IN RELATION TO THE OTHER
THE SAME POSITION IT FORMERLY HAD IN RESPECT OF ASSETS AND OF EARNINGS
AT VARIOUS LEVELS.  THE QUESTION IN EACH CASE IS ONE FOR THE INFORMED
DISCRETION OF THE COMMISSION AND THE DISTRICT COURT.  WE CANNOT SAY
THAT THAT DISCRETION HAS BEEN ABUSED HERE. 

WE WOULD HAVE QUITE A DIFFERENT PROBLEM IF THE DISTRICT COURT HAD
FAILED TO PERFORM THE FUNCTIONS WHICH SEC. 77(E) PLACES UPON IT.  BUT
IT CANNOT BE SAID THAT THERE WAS ANY SUCH FAILURE HERE.  THE DISTRICT
COURT SATISFIED ITSELF THAT THE PRINCIPLES OF PRIORITY AS APPLIED TO
THESE FACTS WERE RESPECTED.  SEE 36 F.SUPP.  PP. 202-203, 211-212. 
SINCE SUCH A DETERMINATION RESTS IN THE REALM OF JUDGMENT RATHER THAN
MATHEMATICS, THERE IS AN AREA FOR DISAGREEMENT.  BUT WE ARE NOT
PERFORMING THE FUNCTIONS OF THE DISTRICT COURT UNDER SEC. 77(E).  OUR
ROLE ON REVIEW IS A LIMITED ONE.  IT IS NOT ENOUGH TO REVERSE THE
DISTRICT COURT THAT WE MIGHT HAVE APPRAISED THE FACTS SOMEWHAT
DIFFERENTLY.  IF THERE IS WARRANT FOR THE ACTION OF THE DISTRICT COURT,
OUR TASK ON REVIEW IS AT AN END. 

THAT LEADS TO A QUESTION MUCH DISCUSSED IN THIS CASE, AS IN THE
WESTERN PACIFIC CASE, AS TO THE NATURE AND EXTENT OF THE FINDINGS
NECESSARY UNDER SEC. 77 IN ORDER TO APPROVE A PLAN AS "FAIR AND
EQUITABLE."  AS WE HAVE SAID, THE FINDING OF THE COMMISSION, AFFIRMED
BY THE DISTRICT COURT, THAT THE STOCK HAD "NO VALUE" WAS WARRANTED. 
FURTHERMORE, THE COMMISSION'S DETERMINATION OF THE PERMISSIBLE
CAPITALIZATION OF THE NEW COMPANY WAS SUFFICIENT AS A FINDING OF THE
MAXIMUM REORGANIZATION VALUES WHICH MIGHT BE DISTRIBUTED AMONG THE
VARIOUS CLASSES OF SECURITY HOLDERS.  BUT IT HAS BEEN ARGUED HERE, AS
IN THE WESTERN PACIFIC CASE, THAT A DOLLAR VALUATION MUST BE MADE OF
EACH OLD SECURITY AND OF EACH NEW SECURITY IN ORDER TO GIVE "FULL
COMPENSATORY TREATMENT" TO SENIOR CLAIMANTS AND TO APPROPRIATE TO THE
PAYMENT OF THEIR CLAIMS THE "FULL VALUE" OF THE PROPERTY, IN ACCORD
WITH THE PRINCIPLES OF CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS,
SUPRA, P. 529.  THE RULE IN EQUITY RECEIVERSHIP CASES THAT THE
CREDITORS WERE ENTITLED TO HAVE THE "VALUE" (NORTHERN PACIFIC RY. CO.
V. BOYD, SUPRA, P. 508) OR THE "FULL VALUE" (KANSAS CITY TERMINAL RY.
CO. V. CENTRAL UNION TRUST CO., 271 U.S. 445, 454) OF THE PROPERTY
FIRST APPROPRIATED TO THE SATISFACTION OF THEIR CLAIMS NEVER WAS
THOUGHT TO REQUIRE SUCH VALUATIONS.  NOR DOES THE CONSOLIDATED ROCK
PRODUCTS CASE OR SEC. 77 REQUIRE THEM.  WE INDICATED IN THE LOS ANGELES
LUMBER PRODUCTS CASE (308 U.S. P. 130) THAT COMPROMISES, SETTLEMENTS,
AND CONCESSIONS ARE A NORMAL PART OF THE REORGANIZATION PROCESS.  AND
SEE MARINE HARBOR PROPERTIES V. MANUFACTURERS TRUST CO., SUPRA.  WE
STATED IN THE CONSOLIDATED ROCK PRODUCTS CASE (312 U.S. P. 526) THAT A
DETERMINATION OF EARNING POWER OF AN ENTERPRISE "REQUIRES A PREDICTION
AS TO WHAT WILL OCCUR IN THE FUTURE, AN ESTIMATE, AS DISTINGUISHED FROM
MATHEMATICAL CERTITUDE."  AND IN DISCUSSING THE METHOD BY WHICH
CREDITORS SHOULD RECEIVE "FULL COMPENSATORY TREATMENT" FOR THEIR
RIGHTS, WE EMPHASIZED, AS ALREADY NOTED, THAT "PRACTICAL ADJUSTMENTS,
RATHER THAN A RIGID FORMULA, ARE NECESSARY."  ID. P. 529.  CERTAINLY
THOSE STANDARDS DO NOT SUGGEST ANY MATHEMATICAL FORMULA.  WE RECENTLY
STATED IN ANOTHER CONNECTION THAT, WHATEVER MAY BE "THE PRETENSES OF
EXACTITUDE" IN DETERMINING A DOLLAR VALUATION FOR A RAILROAD PROPERTY,
"TO CLAIM FOR IT 'SCIENTIFIC' VALIDITY, IS TO EMPLOY THE TERM IN ITS
LOOSEST SENSE."  NASHVILLE, C. & ST. L. RY. V. BROWNING, 310 U.S. 362,
370.  THAT IS EQUALLY TRUE HERE.  A REQUIREMENT THAT DOLLAR VALUES BE
PLACED ON WHAT EACH SECURITY HOLDER SURRENDERS AND ON WHAT HE RECEIVES
WOULD CREATE AN ILLUSION OF CERTAINTY WHERE NONE EXISTS AND WOULD PLACE
AN IMPRACTICABLE BURDEN ON THE WHOLE REORGANIZATION PROCESS.  SEE
BOURNE, FINDINGS OF "VALUE" IN RAILROAD REORGANIZATIONS, 51 YALE L.
JOURN.  1057.  IT IS SUFFICIENT THAT EACH SECURITY HOLDER IN THE ORDER
OF HIS PRIORITY RECEIVES FROM THAT WHICH IS AVAILABLE FOR THE
SATISFACTION OF HIS CLAIM THE EQUITABLE EQUIVALENT OF THE RIGHTS
SURRENDERED.  THAT REQUIRES A COMPARISON OF THE NEW SECURITIES ALLOTTED
TO HIM WITH THE OLD SECURITIES WHICH HE EXCHANGES TO DETERMINE WHETHER
THE NEW ARE THE EQUITABLE EQUIVALENT OF THE OLD.  BUT THAT
DETERMINATION CANNOT BE MADE BY THE USE OF ANY MATHEMATICAL FORMULA. 
WHETHER IN A GIVEN CASE SENIOR CREDITORS HAVE BEEN MADE WHOLE OR
RECEIVED "FULL COMPENSATORY TREATMENT" RESTS IN THE INFORMED JUDGMENT
OF THE COMMISSION AND THE DISTRICT COURT ON CONSIDERATION OF ALL
RELEVANT FACTS. 

THE GENERAL MORTGAGE BONDHOLDERS ATTACK THE ADDITIONS AND BETTERMENTS
FUND ON THE GROUND THAT IT IS UNLAWFUL AND RESULTS IN A DILUTION OF
THEIR PRIORITY RIGHTS.  THEY CONTEND THAT SEC. 77(B)(4) FN11
CONTEMPLATES THAT THE PROBABLE FUTURE EARNINGS FOUND TO BE AVAILABLE
FOR FIXED CHARGES SHALL BE USED TO PAY THOSE CHARGES; THAT THIS
PROVISION OF THE PLAN REDUCES BY $62,500,000(THE CAPITALIZED VALUE OF
$2,500,000) THE AMOUNT OF NEW BONDS AVAILABLE FOR THE PRESENT
UNDERLYING BONDS; THAT ADDITIONS AND BETTERMENTS ARE A CAPITAL CHARGE
AND THAT THE INCOME OF THE ROAD PLEDGED TO THE UNDERLYING BONDS CANNOT
BE DIVERTED FOR THAT PURPOSE AT LEAST WITHOUT SOME COMPENSATING
ADVANTAGE GIVEN THE UNDERLYING BONDS; THAT THE FUND WILL ENRICH THE
JUNIOR INTERESTS AT THE EXPENSE OF THE BONDHOLDERS; THAT THE
EXPENDITURES CONTEMPLATED SHOULD BE OBTAINED FROM SURPLUS EARNINGS OR
FROM NEW CAPITAL RAISED UNDER THE OPEN END FIRST MORTGAGE. 

THE COMMISSION, IN DETERMINING THAT AN ADDITIONS AND BETTERMENTS FUND
SHOULD BE SET UP, REVIEWED AT SOME LENGTH THE CAPITAL REQUIREMENTS OF
THE SYSTEM.  IT OBSERVED THAT, GENERALLY, "THE EXPENDITURES FOR
ADDITIONS AND BETTERMENTS HAVE VARIED IN PROPORTION TO EARNINGS
AVAILABLE FOR INTEREST.  ORDINARILY WITH A RISING TREND IN TRAFFIC AND
REVENUES THE CARRIER WOULD NEED MORE OR BETTER FACILITIES."  ITS
CONCLUSION WAS THAT "THE INCREASED INCOME SHOULD PROPERLY PROVIDE, IN
PART, FOR THEIR COST."  THESE AMOUNTS WOULD SUPPLEMENT THE "CASH
REPRESENTED BY CHARGES TO DEPRECIATION, RETIREMENTS, AND SALVAGE."  AND
THE PLAN PROVIDES THAT IF THE NEW COMPANY ESTABLISHES AN "OPERATING
EXPENSE ACCOUNT FOR ITS ROADWAY AND STRUCTURES," THE ADDITIONS AND
BETTERMENTS FUND SHALL BE PAID FROM THE AMOUNT CREDITED TO SUCH FUND
FOR THE APPLICABLE INCOME PERIOD TO THE EXTENT THAT SUCH AMOUNT IS
ADEQUATE THEREFOR.  LIKEWISE, THE ADDITIONS AND BETTERMENTS FUND IS TO
BE CREDITED WITH THE AMOUNT WHICH THE NEW COMPANY "SHALL CHARGE TO
OPERATING EXPENSES IN ANY YEAR" FOR THE "COST OF ANY ADDITIONS AND
BETTERMENTS, PROPERLY CHARGEABLE TO CAPITAL ACCOUNT UNDER THE RULES NOW
IN EFFECT."  SINCE THE COMMISSION RECENTLY HAS REQUIRED RAILROAD
COMPANIES GENERALLY TO ESTABLISH A DEPRECIATION RESERVE WITH RESPECT TO
THEIR ROADWAY AND STRUCTURES,  FN12  THE GENERAL MORTGAGE BONDS CONCEDE
THAT THE ALLEGED ILLEGALITY OF SUCH A FUND WILL BE RENDERED LARGELY
ACADEMIC.  BUT IN ANY EVENT, WE SEE NO BARRIER TO A DETERMINATION BY
THE COMMISSION THAT EXPENDITURES WHICH ARE INCIDENT TO A NORMAL AND
PROPER OPERATION OF THE ROAD ARE COSTS OR CHARGES WHICH SHOULD BE PAID
BEFORE NET INCOME IS COMPUTED.  NOR CAN WE SEE ANY LEGAL REASON WHY, AS
THE COMMISSION HAS DETERMINED HERE, THOSE CHARGES SHOULD NOT BE IN PART
DEPENDENT ON THE LEVEL OF EARNINGS.  THE CIRCUIT COURT OF APPEALS
THOUGHT THAT THERE MUST BE FINDINGS WHICH WOULD SUPPORT BOTH THE
ALLOWANCE AND ITS AMOUNT.  BUT AS WE HAVE POINTED OUT EARLIER, CONGRESS
HAS MERELY PROVIDED IN SEC. 77(D) THAT THE PLAN APPROVED BY THE
COMMISSION MUST BE ONE WHICH "WILL IN ITS OPINION MEET THE REQUIREMENTS
OF SUBSECTIONS (B) AND (E) OF THIS SECTION, AND WILL BE COMPATIBLE WITH
THE PUBLIC INTEREST."  AND IN ITS REPORT THE COMMISSION IS DIRECTED TO
"STATE FULLY THE REASONS FOR ITS CONCLUSIONS."  WE DO NOT SEE WHERE THE
COMMISSION FAILED TO MEET THESE REQUIREMENTS.  THE NEED FOR SUCH A FUND
AND ITS AMOUNT INVOLVE MATTERS OF POLICY.  THE DETERMINATION THAT A
PARTICULAR FUND SHOULD BE CONSTITUTED CALLS FOR THE EXERCISE OF AN
EXPERT, INFORMED JUDGMENT.  THE COMMISSION CLEARLY HAS POWER TO REQUIRE
THAT SUCH A FUND BE PROVIDED FOR IN A PLAN OF REORGANIZATION UNDER SEC.
77, WHETHER OR NOT THE PAYMENTS TO IT ARE PROPERLY INCLUDED WITHIN THE
TERM "FIXED CHARGES" AS USED IN SEC. 77(B)(4).  FOR SUCH A FUND, LIKE
THE AMOUNT OF CAPITALIZATION AND THE NATURE OF THE CAPITAL STRUCTURE,
MAY BE HIGHLY RELEVANT TO THE FINANCIAL INTEGRITY OF THE COMPANY WHICH
EMERGES FROM REORGANIZATION AND TO STABILITY AND EFFICIENCY OF THE
TRANSPORTATION SYSTEM. 

THERE ARE, HOWEVER, TWO OBJECTIONS MADE BY THE GENERAL MORTGAGE BONDS
WHICH WE THINK HAVE MERIT.  THE FIRST OF THESE RELATES TO THE DISPUTE
AS TO THE SO-CALLED "PIECES OF LINES EAST."  THE GENERAL MORTGAGE BONDS
CONTEND HERE, AS THEY DID BEFORE THE COMMISSION, THAT THEY HAVE A FIRST
LIEN ON THOSE PROPERTIES BY REASON OF THE AFTER-ACQUIRED PROPERTY
CLAUSE IN THEIR MORTGAGE.  THE COMMISSION CREDITED THE 50-YEAR BONDS
WITH THE EARNINGS FROM THOSE PROPERTIES, INDICATING, HOWEVER, THAT THE
PROPRIETY OF DOING SO WAS DOUBTFUL IN ABSENCE OF A JUDICIAL
DETERMINATION OF THE QUESTION.  SOME OF THE GENERAL MORTGAGE BONDS
OBJECTED TO THAT ALLOCATION BEFORE THE DISTRICT COURT.  THE DISTRICT
COURT, HOWEVER, DID NOT UNDERTAKE TO RESOLVE THE DISPUTE.  THESE
GENERAL MORTGAGE BONDHOLDERS LIKEWISE RAISED THE POINT BEFORE THE
CIRCUIT COURT OF APPEALS.  BUT IT WAS NOT CONSIDERED THERE.  THE
OBJECTION HAS BEEN RENEWED HERE BUT HAS NOT BEEN ARGUED ON THE MERITS. 
WE CAN HARDLY TREAT THE MATTER AS DE MINIMIS, AS THERE IS EVIDENCE THAT
THESE PROPERTIES HAD A NET INCOME OF $170,100 IN 1936.  NOR CAN WE
CONCLUDE THAT THE OBJECTION HAS BEEN WAIVED OR THAT THE CLAIM IS
FRIVOLOUS.  HERE, AS IN THE CONSOLIDATED ROCK PRODUCTS CASE, THE
"DETERMINATION OF WHAT ASSETS ARE SUBJECT TO THE PAYMENT OF THE
RESPECTIVE CLAIMS" (312 U.S. P. 520) HAS A DIRECT BEARING ON THE
FAIRNESS OF THE PLAN AS BETWEEN TWO GROUPS OF BONDHOLDERS.  THE
DISTRICT COURT SHOULD RESOLVE THE DISPUTE. 

THE SECOND OF THESE OBJECTIONS IS THAT THE GENERAL MORTGAGE BONDS ARE
TO RECEIVE UNDER THE PLAN ONLY A FACE AMOUNT OF INFERIOR SECURITIES
EQUAL TO THE FACE AMOUNT OF THEIR CLAIMS.  THE OBJECTION WOULD, OF
COURSE, NOT BE VALID IF CLAIMANTS WHOLLY JUNIOR TO THE GENERAL MORTGAGE
BONDS WERE NOT PARTICIPATING IN THE PLAN.  BUT HERE THE ADJUSTMENT
BONDS, JUNIOR TO THE GENERAL MORTGAGE BONDS, RECEIVE A LARGE AMOUNT OF
COMMON STOCK UNDER THE PLAN FOR THEIR CLAIM UPON THE MORTGAGED ASSETS. 
FN13  THE RULE OF THE BOYD CASE "PROTECTS THE RIGHTS OF SENIOR
CREDITORS AGAINST DILUTION EITHER BY JUNIOR CREDITORS OR BY EQUITY
INTERESTS."  MARINE HARBOR PROPERTIES V. MANUFACTURERS TRUST CO.,
SUPRA.  THAT VIEW HAS NOT BEEN CONTESTED HERE.  HENCE, AS WE INDICATED
IN THE CONSOLIDATED ROCK PRODUCTS CASE, WHERE JUNIOR INTERESTS
PARTICIPATE IN A PLAN AND WHERE THE SENIOR CREDITORS ARE ALLOTTED ONLY
A FACE AMOUNT OF INFERIOR SECURITIES EQUAL TO THE FACE AMOUNT OF THEIR
CLAIMS, THEY "MUST RECEIVE, IN ADDITION, COMPENSATION FOR THE SENIOR
RIGHTS WHICH THEY ARE TO SURRENDER."  312 U.S. 529.  AND WE STATED THAT
WHETHER THEY SHOULD "BE MADE WHOLE FOR THE CHANGE IN OR LOSS OF THEIR
SENIORITY BY AN INCREASED PARTICIPATION IN ASSETS, IN EARNING OR IN
CONTROL, OR IN ANY COMBINATION THEREOF, WILL BE DEPENDENT ON THE FACTS
AND REQUIREMENTS OF EACH CASE."  ID. P. 529.  WE FELT THAT THAT RESULT
WAS MADE NECESSARY BY THE RULING IN THE BOYD CASE THAT, "IF THE VALUE
OF THE ROAD JUSTIFIED THE ISSUANCE OF STOCK IN EXCHANGE FOR OLD SHARES,
THE CREDITORS WERE ENTITLED TO THE BENEFIT OF THAT VALUE, WHETHER IT
WAS PRESENT OR PROSPECTIVE, FOR DIVIDENDS OR ONLY FOR PURPOSES OF
CONTROL."  228 U.S. P. 508.  WE ADHERE TO THAT VIEW.  UNLESS THAT
PRINCIPLE IS RESPECTED, THERE WILL BE SERIOUS INVASIONS OF THE RIGHTS
OF SENIOR CLAIMANTS TO THE BENEFIT OF JUNIOR INTERESTS.  THE PROPERTY
OF ONE GROUP WILL BE SUBTLY APPROPRIATED TO PAY THE CLAIMS OF ANOTHER
WHILE LIP SERVICE IS RENDERED THE PRINCIPLES OF PRIORITY. 

SOME ARGUMENT IS ADVANCED THAT UNDER THIS PLAN THE GENERAL MORTGAGE
BONDHOLDERS DO RECEIVE AS AGAINST THE JUNIOR INTERESTS COMPENSATORY
TREATMENT WHICH IS ADEQUATE TO MAKE UP FOR THE SENIORITY RIGHTS WHICH
THEY ARE TO SURRENDER.  PART OF THAT IS SAID TO BE IN THE CONTROL WHICH
THEY OBTAIN.  IT IS POINTED OUT THAT THE PLAN PROVIDES FOR A FIVE YEAR
VOTING TRUST IN WHICH THE SEVERAL GROUPS OF BONDHOLDERS WILL BE
REPRESENTED; THAT THEREAFTER THE PLAN PROTECTS THEIR CONTROL BY
PROVIDING THAT THE NEW PREFERRED STOCK (ALL OF WHICH IS TO BE ISSUED TO
THE MILWAUKEE & NORTHERN CONSOLIDATED BONDS, THE GARY BONDS, THE
GENERAL MORTGAGE BONDS, AND THE 50-YEAR BONDS) WILL BE ENTITLED TO
CUMULATIVE VOTING TO ELECT A MAJORITY OF THE BOARD OF DIRECTORS DURING
CERTAIN PERIODS WHEN FULL DIVIDENDS ON THE PREFERRED HAVE NOT BEEN
PAID; AND THAT THE EXERCISE OF THE CONVERSION RIGHTS OF THE SERIES B
NEW GENERAL MORTGAGE BONDS, ALLOTTED TO THESE SENIOR BONDHOLDERS, WOULD
RESULT IN THEIR ACQUISITION OF OVER 50% OF BOTH THE PREFERRED AND
COMMON.  IT IS ALSO ARGUED THAT COMPENSATORY TREATMENT IS TO BE FOUND
IN THE FACT THAT THE NEW GENERAL MORTGAGE BONDS HAVE SINKING FUNDS AND
ARE CUMULATIVE UP TO THREE YEARS OF INTEREST, AND THAT THE NEW
PREFERRED STOCK IS PARTICIPATING. 

BUT NEITHER THE COMMISSION NOR THE DISTRICT COURT CONSIDERED THE
PROBLEM.  AS WE HAVE INDICATED, THE QUESTION WHETHER SENIOR CREDITORS
HAVE RECEIVED "FULL COMPENSATORY TREATMENT" RESTS IN THE INFORMED
JUDGMENT OF THE COMMISSION AND THE COURT.  A DECISION ON THAT ISSUE
INVOLVES A CONSIDERATION OF THE NUMEROUS INVESTMENT FEATURES OF THE OLD
AND NEW SECURITIES AND A FINANCIAL ANALYSIS OF MANY FACTORS.  OUR TASK
IS ENDED IF THERE IS EVIDENCE TO SUPPORT THAT INFORMED JUDGMENT.  WE
ARE NOT EQUIPPED TO EXERCISE IT IN THE FIRST INSTANCE.  NOR IS IT OUR
FUNCTION.  NOR CAN WE CONCLUDE THAT ITS OMISSION IN THIS INSTANCE WAS
HARMLESS.  AND MINORITIES UNDER SEC. 77, LIKE MINORITIES UNDER OTHER
REORGANIZATION SECTIONS OF THE ACT (CASE V. LOS ANGELES LUMBER PRODUCTS
CO., SUPRA, PP. 114-115, 128-129), CANNOT BE DEPRIVED OF THE BENEFITS
OF THE STATUTE BY REASON OF A WAIVER, ACQUIESCENCE OR APPROVAL BY THE
OTHER MEMBERS OF THE CLASS.  CERTAINLY WE CANNOT SAY THAT THE INCLUSION
IN THE NEW SECURITIES TO BE RECEIVED BY THE GENERAL MORTGAGE BONDS OF
FEATURES NORMALLY COMMON TO THEM ARE ADEQUATE COMPENSATION FOR THE LOST
SENIORITY.  OUR CONCLUSION ON THE POINT IS THAT, SINCE JUNIOR INTERESTS
ARE PARTICIPATING IN THE PLAN, THE COMMISSION AND THE DISTRICT COURT
SHOULD DETERMINE WHAT THE GENERAL MORTGAGE BONDS SHOULD RECEIVE IN
ADDITION TO A FACE AMOUNT OF INFERIOR SECURITIES EQUAL TO THE FACE
AMOUNT OF THEIR OLD ONES, AS EQUITABLE COMPENSATION, QUALITATIVE OR
QUANTITATIVE, FOR THE LOSS OF THEIR SENIOR RIGHTS. 

50-YEAR BONDS.  THE TWO POINTS JUST DISCUSSED IN RELATION TO THE
GENERAL MORTGAGE BONDS ARE EQUALLY APPLICABLE TO THE 50-YEAR BONDS. 
FINAL APPROVAL OF THE PLAN AS IT AFFECTS THOSE TWO ISSUES CANNOT BE
MADE UNTIL FINDINGS ARE MADE ON THOSE TWO MATTERS. 

THE 50-YEAR BONDS RAISE OTHER OBJECTIONS.  WE HAVE ALREADY CONSIDERED
THEIR MAJOR OBJECTIONS IN OTHER CONNECTIONS, AND THEY NEED NOT BE
REPEATED.  BUT A WORD SHOULD BE ADDED IN ANSWER TO THEIR ARGUMENT THAT
THE DATA BEFORE THE COMMISSION AS TO SEGREGATED EARNINGS WAS TOO MEAGER
TO WARRANT A PERMANENT DISRUPTION OF LIENS.  THEY URGE THAT THE PLAN BE
REMITTED TO THE COMMISSION SO THAT THE EARNING POWER OF THE VARIOUS
COMPONENT PARTS OR MORTGAGE DIVISIONS OF THE ROAD MAY BE DETERMINED IN
LIGHT OF EARNINGS SEGREGATION STUDIES, SEVERANCE STUDIES, AND
CONTRIBUTED TRAFFIC STUDIES.  FN14  THESE ARE HIGHLY TECHNICAL
MATTERS.  SEE MECK & MASTEN, RAILROAD LEASES AND REORGANIZATION, 49
YALE L. JOURN.  PP. 640-647.  AS STATED ABOVE, WE CANNOT SAY THAT THE
DATA AS TO EARNING POWER OF THE VARIOUS DIVISIONS WHICH WAS UTILIZED BY
THE COMMISSION WAS INADEQUATE.  THE EARNINGS PERIODS TO BE SELECTED AND
THE METHODS TO BE EMPLOYED IN ALLOCATING EARNINGS AMONG THE VARIOUS
DIVISIONS ARE MATTERS FOR THE INFORMED JUDGMENT OF THE COMMISSION AND
THE DISTRICT COURT.  WHETHER EARNINGS SEGREGATION, SEVERANCE, OR
CONTRIBUTED TRAFFIC STUDIES SHOULD BE MADE IS FOR THE COMMISSION
INITIALLY TO DECIDE IN LIGHT OF THE REQUIREMENTS OF A PARTICULAR CASE. 
WE CANNOT SAY THAT THOSE STUDIES ARE SO INDISPENSABLE THAT THEY SHOULD
BE REQUIRED HERE.  SEC. 77(C)(10) PROVIDES THAT THE JUDGE "MAY DIRECT"
THE DEBTOR OR TRUSTEES "TO KEEP SUCH RECORDS AND ACCOUNTS, IN ADDITION
TO THE ACCOUNTS PRESCRIBED BY THE COMMISSION," AS WILL PERMIT SUCH A
SEGREGATION AND ALLOCATION OF EARNINGS AND EXPENSES.  THAT DOES NOT
INDICATE THAT CONGRESS FELT THAT THE SUGGESTED STUDIES WERE ALWAYS
NECESSARY. 

GARY FIRST MORTGAGE BONDS; ADJUSTMENT BONDS.  WE HAVE CAREFULLY
CONSIDERED THE OBJECTIONS RAISED BY THESE TWO GROUPS.  THEIR
OBJECTIONS, FOR THE MOST PART, ARE OF A KIND WHICH HAVE BEEN FULLY
TREATED IN OTHER PARTS OF THIS OPINION AND NEED NOT BE ELABORATED.  BUT
ONE POINT RAISED BY THE ADJUSTMENT BONDS NEED BE MENTIONED.  AS WE HAVE
NOTED, THE INTEREST ON THESE BONDS ACCRUED TO DECEMBER 31, 1938 IS OVER
$79,000,000.  THE COMMISSION RULED THAT, IN VIEW OF THE INSUFFICIENCY
OF THE MORTGAGED ASSETS TO MEET THE CLAIMS OF THE ADJUSTMENT BONDS AND
THE INADEQUACY OF THE FREE ASSETS TO SATISFY THE DEFICIENCY, WITH
INTEREST, AND THE UNSECURED CLAIMS, WITH INTEREST, NO ALLOWANCE SHOULD
BE MADE IN THE PLAN FOR INTEREST ON THESE BONDS SUBSEQUENT TO THE DATE
OF THE FILING OF THE PETITION.  FOR REASONS WE HAVE ALREADY STATED, THE
CONCLUSION OF THE COMMISSION THAT THE MORTGAGED ASSETS WERE
INSUFFICIENT TO MEET THE BONDED INDEBTEDNESS WAS SUPPORTED BY
EVIDENCE.  SINCE THE DISTRIBUTION PROVIDED FOR THESE BONDS ON THE BASIS
OF THEIR MORTGAGE SECURITIES IS LESS THAN THE PRINCIPAL AMOUNT OF THEIR
CLAIM, THE LIMITATION OF THEIR RIGHT TO SHARE THE UNMORTGAGED ASSETS
RATABLY WITH THE UNSECURED CREDITORS ON THE BASIS OF PRINCIPAL AND
INTEREST PRIOR TO BANKRUPTCY ONLY IS JUSTIFIED UNDER THE RULE OF
TICONIC NATIONAL BANK V. SPRAGUE, 303 U.S. 406. 

WE HAVE CONSIDERED ALL OTHER OBJECTIONS TO THE PLAN AND FIND THEM
WITHOUT MERIT.  BUT FOR THE EXCEPTIONS WE HAVE NOTED, WE CONCLUDE THAT
THE DISTRICT COURT WAS JUSTIFIED IN APPROVING THE PLAN AND THAT THE
CIRCUIT COURT OF APPEALS WAS IN ERROR IN REVERSING THAT JUDGMENT. 
ACCORDINGLY, WE REVERSE IN PART AND AFFIRM IN PART THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS AND DIRECT THAT THE CAUSE BE REMANDED TO THE
DISTRICT COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT IS
SO ORDERED. 

FN1  EQUIPMENT OBLIGATIONS TOTALLING $33,322,999 AND A NOTE OF THE
TRUSTEES FOR $1,184,000 WERE UNDISTURBED OR EXTENDED. 

FN2  THE DEBTOR ALSO OWNS 97% OF THE STOCK OF THE TERRE HAUTE WHICH
IT ACQUIRED BY PURCHASE.  THE STOCK IS ENTITLED TO 41,730 VOTES AND THE
HOLDERS OF CERTAIN TERRE HAUTE BONDS ARE ENTITLED UNDER THE TERMS OF
THE MORTGAGE TO 63,360 VOTES. 

FN3  THE BONDS SECURED BY THIS MORTGAGE ARE UNLIMITED IN AUTHORIZED
PRINCIPAL AMOUNT, AND, SUBJECT TO LIMITATIONS AND RESTRICTIONS
SPECIFIED IN THE MORTGAGE, MAY BE ISSUED FROM TIME TO TIME IN DIFFERENT
SERIES AT VARIOUS INTEREST RATES, ETC. AS THE BOARD OF DIRECTORS AND
THE COMMISSION MAY APPROVE.  IN ADDITION TO THE AMOUNT OF THESE BONDS
ISSUED IN THE REORGANIZATION TO SECURITY HOLDERS, IT IS CONTEMPLATED
THAT NOT EXCEEDING $10,000,000 PRINCIPAL AMOUNT OF THEM WILL BE ISSUED
IN THE REORGANIZATION TO PROVIDE FOR REORGANIZATION EXPENSES, WORKING
CAPITAL, AND ADDITIONS AND BETTERMENTS. 

FN4  THE BONDS SECURED BY THIS MORTGAGE ARE UNLIMITED IN AUTHORIZED
PRINCIPAL AMOUNT, AND, SUBJECT TO LIMITATIONS AND RESTRICTIONS
CONTAINED IN THE MORTGAGE, MAY BE ISSUED FROM TIME TO TIME IN DIFFERENT
SERIES AT VARIOUS INTEREST RATES, ETC., AS THE BOARD OF DIRECTORS AND
THE COMMISSION MAY APPROVE.  INTEREST ON ANY NEW SERIES DOES NOT HAVE
PRIORITY OVER SERIES A OR SERIES B. BONDS OF SERIES B ARE CONVERTIBLE
INTO COMMON STOCK AT THE OPTION OF THE HOLDER AT ANY TIME AT THE RATE
FOR EACH $1000 BOND, OF 10 SHARES OF COMMON STOCK.  BOTH SERIES A AND B
ARE ENTITLED TO A SINKING FUND CREATED BY AN ANNUAL PAYMENT OUT OF
AVAILABLE NET INCOME OF AN AMOUNT EQUAL TO 1/2 OF 1% OF THE AGGREGATE
PRINCIPAL AMOUNT OF SERIES A AND SERIES B BONDS AUTHENTICATED AND
DELIVERED. 

FN5  THE NEW PREFERRED AND NEW COMMON STOCK ARE AUTHORIZED IN AN
UNLIMITED AMOUNT.  ADDITIONAL AMOUNTS ARE ISSUABLE WITH APPROVAL OF THE
COMMISSION.  THE SHARES OF PREFERRED ISSUABLE IN THE REORGANIZATION ARE
SERIES A. SO LONG AS ANY SHARES OF SERIES A ARE OUTSTANDING, THE
CONSENT OF AT LEAST TWO-THIRDS IN NUMBER OF THOSE SHARES IS NECESSARY
FOR THE ISSUANCE OF ANY ADDITIONAL SHARES OF PREFERRED RANKING EITHER
AS TO DIVIDENDS OR AS TO LIQUIDATION, IN PRIORITY TO OR ON A PARITY
WITH THE SHARES OF SERIES A. THE DIVIDENDS ON SERIES A OF THE PREFERRED
ARE NON-CUMULATIVE.  BUT NO DIVIDENDS ARE PAYABLE ON THE COMMON UNLESS
THERE SHALL HAVE BEEN PAID OR SET APART FOR PAYMENT ON THE SERIES A
PREFERRED DIVIDENDS AT THE RATE OF 5% PER ANNUM FOR THE THREE
CONSECUTIVE INCOME PERIODS IMMEDIATELY PRECEDING.  SERIES A OF THE
PREFERRED PARTICIPATES WITH THE COMMON TO THE EXTENT OF $1 A SHARE
AFTER DIVIDENDS SHALL HAVE BEEN PAID OR SET APART FOR THE COMMON AT THE
RATE OF $3.50 A SHARE.  SERIES A PREFERRED HAS VOTING RIGHTS AND,
VOTING CUMULATIVELY AS A CLASS, IS ENTITLED TO ELECT A MAJORITY OF THE
BOARD UNTIL FULL 5% DIVIDENDS SHALL HAVE BEEN PAID ON THE SERIES A FOR
THREE CONSECUTIVE, CALENDAR YEARS.  THEREAFTER, EACH SHARE OF SERIES A
VOTES EQUALLY WITH EACH SHARE OF COMMON, UNTIL FULL DIVIDENDS HAVE NOT
BEEN PAID DURING THREE CONSECUTIVE CALENDAR YEARS IN WHICH EVENT THE
SERIES A AGAIN BECOMES ENTITLED TO ELECT A MAJORITY OF THE BOARD. 

EACH SHARE OF COMMON STOCK CARRIES ONE VOTE.  APPROXIMATELY 514,221
SHARES ARE RESERVED FOR THE CONVERSION OF SERIES B, GENERAL MORTGAGE
BONDS. 

FN6  THIS TOTAL INCLUDES THE MODIFIED BONDS OF THE TERRE HAUTE, WHICH
THOUGH STRICTLY NOT A PART OF THE CAPITAL STRUCTURE OF THE NEW COMPANY
WILL BE ASSUMED BY IT, IF THE TERMS OF MODIFICATION ARE ACCEPTED.  THE
TOTAL CAPITALIZATION IS MADE UP OF THE FOLLOWING: 

DEBT - FIXED INTEREST....................  $108,780,470 

DEBT - CONTINGENT INTEREST...............   115,257,480 

PREFERRED STOCK..........................   111,347,846 

NO-PAR COMMON STOCK ($100 PER SHARE).....   213,147,525 

FN7  THE COMMISSION COMPUTED THE AMOUNT OF THE CLAIM BY TAKING THE
PRINCIPAL AND INTEREST TO JUNE 29, 1935, THE DATE OF THE FILING OF THE
PETITION.  THAT AMOUNT WAS $230,420,853.  AS WE DISCUSS HEREAFTER, IT
CONCLUDED THAT NO ALLOWANCE SHOULD BE MADE IN THE PLAN FOR INTEREST ON
THESE BONDS SUBSEQUENT TO THE DATE OF THE FILING OF THE PETITION IN
VIEW OF THE INSUFFICIENCY OF THE MORTGAGED ASSETS TO MEET THE CLAIMS
AND THE APPARENT INADEQUACY OF THE FREE ASSETS TO SATISFY THE
DEFICIENCY WITH INTEREST. 

FN8  SEC. 77(E) PROVIDES THAT IT IS NOT NECESSARY TO SUBMIT THE PLAN
TO "ANY CLASS OF STOCKHOLDERS" IF THE COMMISSION "SHALL HAVE FOUND, AND
THE JUDGE SHALL HAVE AFFIRMED THE FINDING, ...  THAT AT THE TIME OF THE
FINDING THE EQUITY OF SUCH CLASS OF STOCKHOLDERS HAS NO VALUE." 

FN9  RESPECTING THE NEW CH. XV OF THE BANKRUPTCY ACT, C. 610, 56
STAT. 787, WHICH PROVIDES FOR CERTAIN VOLUNTARY ADJUSTMENTS OF
OBLIGATIONS OF RAILROADS. 

FN10 THE LIEN OF THE 50-YEAR BONDS IS OF COURSE SUBJECT TO THE FIRST
& REFUNDING MORTGAGE BONDS, ALL HELD BY THE RECONSTRUCTION FINANCE
CORPORATION AS SECURITY FOR ITS LOAN.  BUT IN VIEW OF THE ADEQUACY OF
THAT SECURITY, THE CIRCUIT COURT OF APPEALS RECOGNIZED THAT, AS A
PRACTICAL MATTER, THE 50-YEAR BONDS WERE TO BE CONSIDERED AS HAVING A
FIRST LIEN ON THE WESTERN LINES. 

FN11  WHICH PROVIDES THAT A PLAN OF REORGANIZATION "SHALL PROVIDE FOR
FIXED CHARGES (INCLUDING FIXED INTEREST ON FUNDED DEBT, INTEREST ON
UNFUNDED DEBT, AMORTIZATION OF DISCOUNT ON FUNDED DEBT, AND RENT FOR
LEASED RAILROADS) IN SUCH AN AMOUNT THAT  ...  THERE SHALL BE ADEQUATE
COVERAGE OF SUCH FIXED CHARGES BY THE PROBABLE EARNINGS AVAILABLE FOR
THE PAYMENT THEREOF." 

FN12  ORDER OF JUNE 8, 1942, EFFECTIVE JANUARY 1, 1943. 

FN13  THIS OBJECTION OBVIOUSLY WOULD NOT RUN TO A PARTICIPATION BY
JUNIOR CREDITORS IN UNMORTGAGED ASSETS - AGAINST WHICH IN THIS CASE
55,000 SHARES OF COMMON STOCK WERE RESERVED.  OF THOSE THE ADJUSTMENT
BONDS WERE ALLOTTED 39,163 SHARES.  BUT AS WE HAVE NOTED, THE
ADJUSTMENT BONDS WERE ALSO ALLOTTED 1,749,492 SHARES OF NEW COMMON FOR
THEIR CLAIM UPON THE MORTGAGED ASSETS OF THE DEBTOR. 

FN14  ALTHOUGH THE 50-YEAR BONDS AND THE DEBTOR RAISED THIS POINT
BEFORE THE COMMISSION AS EARLY AS FEBRUARY, 1938, AND THE 50-YEAR BONDS
RAISED IT AGAIN WHEN THEY FILED THEIR OBJECTIONS TO THE PLAN IN THE
DISTRICT COURT, NEITHER OF THEM ATTEMPTED TO SUBMIT ANY SUCH STUDIES
EITHER IN THE HEARINGS BEFORE THE COMMISSION OR IN THE HEARINGS BEFORE
THE DISTRICT COURT MORE THAN TWO YEARS LATER. 

MR. JUSTICE JACKSON AND MR. JUSTICE RUTLEDGE DID NOT PARTICIPATE IN
THE CONSIDERATION OR DECISION OF THESE CASES. 

MR. JUSTICE ROBERTS: 

THIS CASE PRESENTS TWO QUESTIONS ON WHICH I FEEL COMPELLED TO EXPRESS
MY VIEWS.  I HAVE SET FORTH IN ECKER V. WESTERN PACIFIC R. CORP., ANTE,
P. 448, WHAT I CONSIDER THE RESPECTIVE FUNCTIONS OF THE INTERSTATE
COMMERCE COMMISSION AND THE DISTRICT JUDGE IN RESPECT OF A PLAN OF
REORGANIZATION FORMULATED UNDER SEC. 77.  IT FOLLOWS FROM WHAT I THERE
SAID THAT I AGREE WITH THE OPINION OF THE COURT EXCEPT AS HEREIN
NOTED. 

THE TWO MATTERS AS TO WHICH I DISAGREE ARE THE PROVISIONS OF THE PLAN
RESPECTING THE LEASE OF CHICAGO, TERRE HAUTE & SOUTHEASTERN RAILWAY
COMPANY AND THE ALLOCATION OF SECURITIES TO THE HOLDERS OF GENERAL
MORTGAGE BONDS. 

1. THE STATUTE DEALS WITH UNEXPIRED LEASES UNDER WHICH THE DEBTOR IS
LESSEE.  IT DOES NOT PROVIDE THAT THE LESSOR MAY BE BROUGHT INTO A
REORGANIZATION PROCEEDING WITH THE DEBTOR SO THAT THE PROPERTIES OF
BOTH DEBTOR AND LESSOR MAY BE REORGANIZED AS A UNIT.  ON THE CONTRARY,
ALL THE RELEVANT PROVISIONS CONTEMPLATE THE RECOGNITION OF THE LESSOR
LESSEE RELATION, AND THE DEALING WITH THE LEASED PROPERTY IN THAT
LIGHT, AND NOT AS IF IT WERE PART OF THE PROPERTY OF THE LESSEE.  THE
PRACTICE IN EQUITY RECEIVERSHIPS PRIOR TO THE ADOPTION OF SEC. 77
PERMITTED THE AFFIRMANCE OR DISAFFIRMANCE OF UNEXPIRED LEASES.  THAT
PRACTICE IS PERPETUATED IN THE REORGANIZATION STATUTE.  PRIOR TO THE
FORMULATION OF A PLAN, THE TRUSTEE APPOINTED BY THE COURT MAY DISAFFIRM
THE LEASE.  FN1  HE MAY, ON THE OTHER HAND, ADOPT THE LEASE.  FN2  BUT
IF HE DOES SO HIS ADOPTION IS SUBJECT TO REVERSAL BY A PROVISION IN THE
PLAN PROVIDING FOR REJECTION.  FN3  THE PLAN ITSELF MUST, AMONGST OTHER
THINGS, PROVIDE FOR THE RENTAL PAYMENT UNDER EXISTING LEASES NOT
REJECTED.  FN4  BUT THE PLAN MAY PROVIDE FOR REJECTION AND, IN THAT
CASE, THE LESSOR IS TO BE TREATED AS A CREDITOR WITH A CLAIM FOR THE
AMOUNT OF DAMAGE OR INJURY DONE BY REJECTION N5.  WHAT IS TO BE DONE
WITH RESPECT TO THE CONTINUED OPERATION OF A LEASED LINE UPON THE
REJECTION OF THE LEASE IS COVERED.  FN6 

IT IS EVIDENT THAT CONGRESS CONCLUDED THAT THE OLD AND WELL
RECOGNIZED PRINCIPLES APPLIED IN EQUITY RECEIVERSHIP SHOULD BE
SUBSTANTIALLY INCORPORATED INTO SEC. 77 SO FAR AS CONCERNS UNEXPIRED
LEASES.  THE DRAFTSMEN OF THE LEGISLATION DID NOT PROVIDE FOR A CASE IN
WHICH IT WOULD BE TO THE INTEREST OF THE REORGANIZED CORPORATION TO
RETAIN THE LEASED PROPERTY UNDER A NEW OR AMENDED LEASE STIPULATING FOR
A REDUCED RENTAL.  BUT WHETHER THE OMISSION TO CONFER UPON THE
COMMISSION AND THE COURT THE POWER TO WORK OUT SUCH A RESULT AROSE FROM
INADVERTENCE OR REASONS OF POLICY, OR BECAUSE OF A BELIEF THAT POWER
WAS LACKING, I NEED NOT SPECULATE.  WHATEVER THE REASON, IT SEEMS CLEAR
THAT SUCH A CASE IS NOT COVERED AND THAT THE ONLY ALTERNATIVES PROVIDED
BY THE STATUTE ARE DISAFFIRMANCE OR AFFIRMANCE.  IN VIEW OF THE
PROVISIONS OF SUBSECTION (B) AS TO WHAT A PLAN SHALL OR MAY INCLUDE, I
THINK IT IS INADMISSIBLE TO FIND AUTHORITY FOR WHAT THE COMMISSION HAS
DONE IN THIS CASE IN THE CONCLUDING SENTENCE OF THE FIRST PARAGRAPH TO
THE EFFECT THAT THE PLAN "MAY INCLUDE ANY OTHER APPROPRIATE PROVISIONS
NOT INCONSISTENT WITH THIS SECTION."  IN VIEW OF THE STATUTORY
PROVISIONS TO WHICH I HAVE REFERRED, THE FEATURES OF THE PLAN
RESPECTING THE TERRE HAUTE LEASE ARE INCONSISTENT WITH THE SECTION. 
CONGRESS DID NOT CONTEMPLATE THE TREATMENT OF A LESSOR AS IF THE
PROPERTY IT OWNS AND LEASES TO THE DEBTOR IS PART OF THE PROPERTY TO BE
REORGANIZED, NOR DID IT INTEND TO PUT THE COMMISSION IN A POSITION OF
BARGAINING WITH SUCH A LESSOR FOR A NEW BASE. 

THE PLAN FORMULATED BY THE COMMISSION SEEMS TO ME TO BE A STRADDLE
BETWEEN THESE TWO ALTERNATIVES.  THE HOLDERS OF BONDS SECURED BY
MORTGAGES ON THE TERRE HAUTE PROPERTY ARE, IN SOME ASPECTS, TREATED AS
IF THEY WERE MORTGAGE CREDITORS OF THE DEBTOR.  IN OTHER ASPECTS, TERRE
HAUTE IS TREATED AS AN ARM'S LENGTH CREDITOR WITH WHOM A BARGAIN MUST
BE STRUCK.  THE VICE OF THIS SEEMS APPARENT ON THIS RECORD.  WHEREAS
EACH CLASS OF MORTGAGE CREDITORS OF THE DEBTOR IS AFFORDED A
PARTICIPATION IN THE SECURITIES AND PROBABLE EARNINGS OF THE NEW
COMPANY IN PURPORTED COMPLIANCE WITH THE RULE OF THE CASE AND ROCK
PRODUCTS DECISIONS, AND WHEREAS THE COMMISSION RECOGNIZES THE
DIFFERENCE IN THE NATURE OF THE LIEN AND SECURITY OF THE THREE ISSUES
OF MORTGAGE BONDS OF TERRE HAUTE, IN THE PLAN THEY ARE ALL TREATED
ALIKE AND NOT ACCORDED POSITIONS CORRESPONDING TO THEIR RESPECTIVE
LIENS AND PRIORITIES.  THE EXCUSE FOR THIS IS THAT THE COMMISSION IS
DEALING WITH A LEASE AND FIXING A RENTAL TO BE PAID TO AN OUTSIDE
LESSOR.  ON THE OTHER HAND, THE CONCEPT OF DEALING WITH A LESSOR, AS I
READ THE RECORD, MOVED THE COMMISSION TO PROPOSE TO THE LESSOR WHAT IT
THOUGHT WOULD BE AN ATTRACTIVE OFFER IN ORDER TO PERSUADE THE LESSOR TO
ACCEPT A NEW LEASE.  IN THIS ASPECT, THE COMMISSION, AS I THINK, MADE
THE BONDHOLDERS OF TERRE HAUTE, TREATED AS A CLASS, A PROPOSITION WHICH
GIVES THEM AN INORDINATELY SUPERIOR POSITION TO THAT ACCORDED THE
HOLDERS OF GENERAL MORTGAGE BONDS, AND PRODUCES A SERIOUS
DISCRIMINATION AGAINST THE LATTER.    I REFER TO THESE CIRCUMSTANCES
MERELY TO REINFORCE WHAT I HAVE SAID ABOVE TO THE EFFECT THAT IT IS
EVIDENT CONGRESS DID NOT PROVIDE FOR ANY SUCH TREATMENT OF THE RIGHTS
ACCRUING UNDER AN UNEXPIRED LEASE.  I AM OF OPINION, THEREFORE, THAT,
AS A MATTER OF LAW, THE PLAN ADOPTED BY THE COMMISSION DOES NOT CONFORM
TO THE STANDARDS SET UP BY SEC. 77, AND PARTICULARLY BY SUBSECTION
(B). 

2.  UPON THE FACTS SET FORTH IN THE COMMISSION'S REPORT, I THINK IT
CLEAR THAT THE AWARD OF SECURITIES IN THE NEW CORPORATION TO THE
HOLDERS OF GENERAL MORTGAGE BONDS DOES NOT COMPLY WITH THE RULE OF
ABSOLUTE PRIORITY ANNOUNCED IN THE BOYD AND ROCK PRODUCTS CASES.  IF
THIS IS TRUE, THE PLAN VIOLATES SUBSECTION (E). 

IN CONFORMITY WITH WHAT I HAVE SAID IN ECKER V. WESTERN PACIFIC R.
CORP., I THINK THE DUTY RESTED UPON THE DISTRICT JUDGE TO SUSTAIN THE
OBJECTIONS OF GENERAL MORTGAGE BONDHOLDERS, BECAUSE I CANNOT FIND IN
THE FACTS STATED BY THE INTERSTATE COMMERCE COMMISSION AND THOSE PROVED
BEFORE THE DISTRICT COURT ANY REASONABLE JUSTIFICATION FOR THE
ALLOCATION MADE TO THEM AS AGAINST THAT MADE TO THE HOLDERS OF BONDS
SECURED BY THE MILWAUKEE & NORTHERN CONSOLIDATED MORTGAGE AND THE FIFTY
YEAR MORTGAGE, OR FOR THE TREATMENT ACCORDED THEM IN COMPARISON TO THAT
ACCORDED TERRE HAUTE'S BONDHOLDERS.  THE OPINION OF THE COURT TREATS
THIS QUESTION AS, IN EFFECT, LYING WITHIN THE SOUND DISCRETION OF THE
DISTRICT JUDGE AND REFUSES TO REVIEW HIS ACTION ON THE GROUND THAT IT
IS NOT EVIDENT HE ABUSED THAT DISCRETION.  I AM OF THE VIEW THAT,
UNLESS WE ARE TO RECANT WHAT WE HAVE HERETOFORE SAID, THE RULE OF LAW
AS TO THE MAINTENANCE OF THE RESPECTIVE POSITIONS OF LIENORS MUST BE
ENFORCED.  OF COURSE, THAT RULE MUST BE APPLIED IN THE LIGHT OF THE
FACTS OF EACH CASE, BUT I DO NOT THINK THE DISTRICT JUDGE MAY ABDICATE
THE DUTY OF EXAMINING THOSE FACTS AND CORRECTING WHAT IS SHOWN TO BE A
CLEAR INFRACTION OF THE RULE.  NEITHER THE JUDGE NOR THE COMMISSION
NEED ESSAY TO VALUE THE PROPERTY UNDER EACH MORTGAGE, OR THE SECURITIES
TO BE ALLOCATED TO THE MORTGAGEES UNDER IT, IN DOLLARS AND CENTS. 
SUBSTANTIAL EQUIVALENCE SATISFIES THE REQUIREMENT OF "FAIRNESS AND
EQUITY" IN ITS LEGAL SENSE AS USED IN THIS SETTING.  THE COURT SHOULD,
OF COURSE, GIVE WEIGHT TO WHAT THE COMMISSION HAS FOUND, AND ITS
REASONS FOR ITS ALLOCATION, BUT I THINK THAT, IF THE DISTRICT JUDGE
HAD, IN THIS CASE, EXERCISED THE DUTY WHICH LAY UPON HIM HE WOULD HAVE
HELD THAT THERE WAS NO SUBSTANTIAL FOUNDATION FOR THE COMMISSION'S
TREATMENT OF GENERAL MORTGAGE BONDHOLDERS AND WOULD HAVE BEEN BOUND,
THEREFORE, TO DISAPPROVE THE PLAN.  AS HE DID NOT PERFORM THAT DUTY, I
THINK THAT, UNLESS THE RIGHT TO COME TO THIS COURT IS VAIN, WE HAVE THE
DUTY TO CORRECT HIS ACTION.  I SHOULD, THEREFORE, REVERSE THE DECREE
BELOW. 

FN1  SEC. 77(C)(2); PALMER V. WEBSTER & ATLAS NATIONAL BANK, 312 U.S.
156, 163. 

FN2  SEC. 77(B). 

FN3  ID. 

FN4  ID. 

FN5  ID. 

FN6  SEC. 77(C)(6). 
..END :
























EX PARTE ELMER DAVIS, 318 U.S. 412 


NO. - , ORIGINAL.  DECIDED MARCH 8, 1943.  - LEAVE DENIED. 


THE APPLICANT NOT HAVING FULLY EXHAUSTED THE REMEDIES AFFORDED BY
STATE APPELLATE PROCEDURE, THE APPLICATION FOR LEAVE TO FILE A PETITION
FOR HABEAS CORPUS IN THIS CASE IS DENIED WITHOUT PREJUDICE. 

EX PARTE ELMER DAVIS. 

ON MOTION FOR LEAVE TO FILE PETITION FOR HABEAS CORPUS. 

PER CURIAM. 

AFTER WE DENIED, WITHOUT PREJUDICE, PETITIONER'S PREVIOUS APPLICATION
FOR LEAVE TO FILE IN THIS COURT A PETITION FOR HABEAS CORPUS, 317 U.S.
592, THE CIRCUIT COURT OF VIGO COUNTY, INDIANA, ON DECEMBER 29, 1942,
SUSTAINED A DEMURRER TO HIS PETITION FOR A WRIT OF ERROR CORAM NOBIS. 
PETITIONER NOW ALLEGES THAT HE HAS FILED AN APPEAL FROM THAT COURT TO
THE SUPREME COURT OF INDIANA.  HE ALSO ALLEGES THAT HIS REQUEST THAT A
TRANSCRIPT OF THE CORAM NOBIS PROCEEDING BE FURNISHED FREE OF CHARGE,
BECAUSE HE IS A POOR PERSON, HAS BEEN DENIED.  HE CONTENDS THAT IN THE
ABSENCE OF A TRANSCRIPT OF THE CORAM NOBIS PROCEEDING, HE IS LEFT
WITHOUT A REMEDY BY APPEAL IN THE COURTS OF INDIANA.  BUT WE CANNOT
ASSUME THAT THE SUPREME COURT OF INDIANA WILL REFUSE TO USE ITS PROCESS
TO BRING BEFORE IT SUCH PARTS OF THE RECORD AS MAY BE NECESSARY FOR A
DECISION OF THE CASE, OR THAT, IN THAT EVENT, IT WILL REFUSE TO ENTER
AN ORDER FINALLY DISPOSING OF THE APPEAL.  UNTIL THE SUPREME COURT OF
INDIANA HAS ACTED UPON AN APPLICATION FOR AN ORDER FINALLY DISPOSING OF
THE APPEAL - WHICH, IF ADVERSE TO PETITIONER, HE COULD MAKE THE SUBJECT
OF A PETITION FOR CERTIORARI TO THIS COURT - THE REMEDIES AFFORDED BY
STATE APPELLATE PROCEDURE HAVE NOT BEEN FULLY EXHAUSTED.  ACCORDINGLY,
WE DENY PETITIONER'S PRESENT APPLICATION WITHOUT PREJUDICE.  LEAVE
DENIED. 
..END :

















JAMISON V. TEXAS, 318 U.S. 413 


NO. 558.  ARGUED FEBRUARY 12, 1943.  - DECIDED MARCH 8, 1943.  -
REVERSED. 


1.  UNDER THE STATE LAW, THE APPELLANT IN THIS CASE COULD APPEAL TO NO
HIGHER STATE COURT THAN THAT FROM WHICH THE APPEAL HERE WAS TAKEN; AND,
SINCE THE JUDGMENT SUSTAINED A MUNICIPAL ORDINANCE THE VALIDITY OF
WHICH UNDER THE FEDERAL CONSTITUTION WAS CHALLENGED, THIS COURT HAS
JURISDICTION OF THE APPEAL UNDER JUD.  CODE SEC. 237(A).  P. 414. 

2.  A MUNICIPAL ORDINANCE IS A "STATUTE" OF THE STATE, WITHIN THE
MEANING OF JUD.  CODE SEC. 237(A).  KING MFG. CO. V. AUGUSTA, 277 U.S.
100, FOLLOWED.  P. 414. 

3.  A MUNICIPAL ORDINANCE WHICH, AS CONSTRUED AND APPLIED, PROHIBITS
THE DISSEMINATION OF INFORMATION BY HANDBILLS, HELD A DENIAL OF THE
FREEDOM OF THE PRESS AND VIOLATIVE OF THE FOURTEENTH AMENDMENT.  P.
415. 

4.  A STATE MAY NOT, CONSISTENTLY WITH THE FOURTEENTH AMENDMENT,
PROHIBIT THE DISTRIBUTION OF HANDBILLS IN THE PURSUIT OF A CLEARLY
RELIGIOUS ACTIVITY MERELY BECAUSE THE HANDBILLS INVITE THE PURCHASE OF
BOOKS FOR THE IMPROVED UNDERSTANDING OF THE RELIGION OR BECAUSE THEY
SEEK TO PROMOTE THE RAISING OF FUNDS FOR RELIGIOUS PURPOSES.  P. 416. 

JAMISON V. TEXAS. 

APPEAL FROM THE CRIMINAL COURT OF DALLAS COUNTY, TEXAS. 

APPEAL FROM A CONVICTION AND SENTENCE FOR VIOLATION OF A MUNICIPAL
ORDINANCE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, A MEMBER OF THE JEHOVAH'S WITNESSES, WAS CHARGED WITH
DISTRIBUTING HANDBILLS ON THE STREETS OF DALLAS, TEXAS, IN VIOLATION OF
AN ORDINANCE OF THAT CITY WHICH PROHIBITS THEIR DISTRIBUTION.  SHE WAS
CONVICTED IN THE CORPORATION COURT OF DALLAS, AND APPEALED TO THE
COUNTY CRIMINAL COURT WHERE, AFTER A TRIAL DE NOVO, SHE WAS AGAIN
CONVICTED AND A FINE OF $5.00 AND COSTS WAS IMPOSED.  UNDER TEXAS LAW
SHE COULD APPEAL TO NO HIGHER STATE COURT,  FN1  AND SINCE SHE PROPERLY
RAISED FEDERAL QUESTIONS OF SUBSTANCE IN BOTH COURTS, THE CASE IS
RIGHTFULLY HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE.  KING
MANUFACTURING CO. V. AUGUSTA, 277 U.S. 100.  THE APPELLEE HAS ASKED US
TO RECONSIDER THE DOCTRINE OF THE KING MANUFACTURING CO. CASE UNDER
WHICH THIS COURT TAKES JURISDICTION ON APPEAL FROM JUDGMENTS SUSTAINING
THE VALIDITY OF MUNICIPAL ORDINANCES.  WE SEE NO REASON FOR
RECONSIDERING THE KING MANUFACTURING CO. CASE AND FOLLOW IT HERE. 

WE THINK THE JUDGMENT BELOW MUST BE REVERSED BECAUSE THE DALLAS
ORDINANCE DENIES TO THE APPELLANT THE FREEDOM OF PRESS AND OF RELIGION
GUARANTEED TO HER BY THE FIRST AND FOURTEENTH AMENDMENTS OF THE FEDERAL
CONSTITUTION. 

THE STIPULATED FACTS SHOW THAT THE APPELLANT, AFTER THREE YEARS OF
SPECIAL TRAINING, HAD DEVOTED MANY YEARS TO THE WORK OF THE JEHOVAH'S
WITNESSES.  AT THE TIME OF HER ARREST, THE APPELLANT WAS DISTRIBUTING
HANDBILLS IN AN ORDERLY AND QUIET MANNER TO PEDESTRIANS WHOM SHE MET ON
THE STREET.  ON ONE SIDE OF THE HANDBILL WAS AN INVITATION TO ATTEND A
GATHERING IN A DALLAS PARK, WHICH WAS TO BE ONE OF FIFTY SIMULTANEOUS
GATHERINGS OF JEHOVAH'S WITNESSES IN AS MANY CITIES, TO HEAR AN ADDRESS
BY A LEADER OF THE GROUP ON "PEACE, CAN IT LAST."  THE OTHER SIDE OF
THE HANDBILL REPEATED THE INVITATION AND DESCRIBED AT THE BOTTOM TWO
BOOKS WHICH EXPLAINED THE JEHOVAH'S WITNESSES' INTERPRETATION OF THE
BIBLE AND SET OUT THEIR RELIGIOUS VIEWS.  THIS WAS FOLLOWED BY A
STATEMENT THAT THE BOOKS WOULD BE MAILED "POSTAGE PREPAID ON YOUR
CONTRIBUTION OF 25[."  WHILE THE BOOKS WERE NOT ACTUALLY SOLD ON THE
STREETS, THE APPELLANT WOULD HAVE DELIVERED THEM TO THE HOME OF ANYONE
WHO MADE THE TWENTY-FIVE CENTS CONTRIBUTION.  THE BOOKS WOULD HAVE COST
HER MORE THAN TWENTY-FIVE CENTS. 

THE DALLAS ORDINANCE, WHICH IS SET FORTH IN THE MARGIN,  FN2  HAS
BEEN CONSTRUED BY THE STATE COURT TO FORBID THE DISTRIBUTION OF
LEAFLETS BY THE APPELLANT IN THE FASHION OUTLINED ABOVE.  FN3 THE CITY
SEEKS TO UPHOLD THE ORDINANCE HERE ON THE CONTENTION (A) THAT IT IS
JUSTIFIED AS AN EXERCISE OF THE CITY'S PLENARY CONTROL OF ITS STREETS,
AND (B) THAT APPELLANT'S ACTIVITY MAY BE FORBIDDEN BECAUSE THE LEAFLETS
INCLUDE "COMMERCIAL ADVERTISING OF BOOKS WHICH THE DISTRIBUTOR IS
OFFERING FOR SALE." 

FIRST.  THE CITY CONTENDS THAT ITS POWER OVER ITS STREETS IS NOT
LIMITED TO THE MAKING OF REASONABLE REGULATIONS FOR THE CONTROL OF
TRAFFIC AND THE MAINTENANCE OF ORDER, BUT THAT IT HAS THE POWER
ABSOLUTELY TO PROHIBIT THE USE OF THE STREETS FOR THE COMMUNICATION OF
IDEAS.  IT RELIES PRIMARILY ON DAVIS V. MASSACHUSETTS, 167 U.S. 43. 
THIS SAME ARGUMENT, MADE IN RELIANCE UPON THE SAME DECISION, HAS BEEN
DIRECTLY REJECTED BY THIS COURT.  HAGUE V. C.I.O., 307 U.S. 496, 514
516.  OF COURSE, STATES MAY PROVIDE FOR CONTROL OF TRAVEL ON THEIR
STREETS IN ORDER TO INSURE THE SAFETY AND CONVENIENCE OF THE TRAVELING
PUBLIC.  COX V. NEW HAMPSHIRE, 312 U.S. 569, 574.  THEY MAY PUNISH
CONDUCT ON THE STREETS WHICH IS IN VIOLATION OF A VALID LAW. 
CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568.  BUT ONE WHO IS RIGHTFULLY
ON A STREET WHICH THE STATE HAS LEFT OPEN TO THE PUBLIC CARRIES WITH
HIM THERE AS ELSEWHERE THE CONSTITUTIONAL RIGHT TO EXPRESS HIS VIEWS IN
AN ORDERLY FASHION.  THIS RIGHT EXTENDS TO THE COMMUNICATION OF IDEAS
BY HANDBILLS AND LITERATURE AS WELL AS BY THE SPOKEN WORD.  HAGUE V.
C.I.O., SUPRA; SCHNEIDER V. IRVINGTON, 308 U.S. 147, 162.  HERE, THE
ORDINANCE AS CONSTRUED AND APPLIED PROHIBITS THE DISSEMINATION OF
INFORMATION BY HANDBILLS.  AS SUCH, IT CANNOT BE SUSTAINED. 

SECOND.  THE RIGHT TO DISTRIBUTE HANDBILLS CONCERNING RELIGIOUS
SUBJECTS ON THE STREETS MAY NOT BE PROHIBITED AT ALL TIMES, AT ALL
PLACES, AND UNDER ALL CIRCUMSTANCES.  THIS HAS BEEN BEYOND CONTROVERSY
SINCE THE DECISION IN LOVELL V. GRIFFIN, 303 U.S. 444.  THE CITY
CONTENDS, HOWEVER, THAT IN THE INSTANT CASE THE PROHIBITION IS
PERMISSIBLE BECAUSE THE HANDBILLS, ALTHOUGH THEY WERE DISTRIBUTED FOR
THE UNQUESTIONED PURPOSE OF FURTHERING RELIGIOUS ACTIVITY, CONTAINED AN
INVITATION TO CONTRIBUTE TO THE SUPPORT OF THAT ACTIVITY BY PURCHASING
BOOKS RELATED TO THE WORK OF THE GROUP.  THE MERE PRESENCE OF AN
ADVERTISEMENT OF A RELIGIOUS WORK ON A HANDBILL OF THE SORT DISTRIBUTED
HERE MAY NOT SUBJECT THE DISTRIBUTION OF THE HANDBILL TO PROHIBITION. 
IN SCHNEIDER V. IRVINGTON, SUPRA, WE HELD THAT THE CITY OF IRVINGTON
MIGHT NOT FORBID CONDUCT ALMOST PRECISELY THE SAME AS THAT WITH WHICH
THE APPELLANT IN THE INSTANT CASE IS CHARGED.  EVEN WHERE HANDBILLS
CARRYING NOTICE OF A PUBLIC GATHERING CONTAINED A STATEMENT OF AN
ADMISSION FEE, WE HELD THAT THEY COULD NOT BE BARRED FROM DISTRIBUTION
ON THE STREETS.  SCHNEIDER V. IRVINGTON, SUPRA, 154, 162, 163.  NO
ADMISSION WAS TO BE CHARGED AT THE MEETING FOR WHICH THE APPELLANT WAS
CIRCULATING LEAFLETS IN THE INSTANT CASE.  IN CANTWELL V. CONNECTICUT,
310 U.S. 296, 305, WE SAID THAT A STATE MIGHT NOT PREVENT THE
COLLECTION OF FUNDS FOR A RELIGIOUS PURPOSE BY UNREASONABLY OBSTRUCTING
OR DELAYING THEIR COLLECTION. 

THE STATES CAN PROHIBIT THE USE OF THE STREETS FOR THE DISTRIBUTION
OF PURELY COMMERCIAL LEAFLETS, EVEN THOUGH SUCH LEAFLETS MAY HAVE "A
CIVIC APPEAL, OR A MORAL PLATITUDE" APPENDED.  VALENTINE V.
CHRESTENSEN, 316 U.S. 52, 55.  THEY MAY NOT PROHIBIT THE DISTRIBUTION
OF HANDBILLS IN THE PURSUIT OF A CLEARLY RELIGIOUS ACTIVITY MERELY
BECAUSE THE HANDBILLS INVITE THE PURCHASE OF BOOKS FOR THE IMPROVED
UNDERSTANDING OF THE RELIGION OR BECAUSE THE HANDBILLS SEEK IN A LAWFUL
FASHION TO PROMOTE THE RAISING OF FUNDS FOR RELIGIOUS PURPOSES. 
REVERSED. 

FN1  THE TEXAS PRACTICE UNDER WHICH THIS IS THE HIGHEST STATE COURT
TO WHICH APPELLANT COULD APPEAL IS CONSIDERED IN LARGENT V. TEXAS,
POST, P. 418. 

FN2  "SCATTERING HANDBILLS, ETC. - IT SHALL BE UNLAWFUL FOR ANY
PERSON TO CARRY OR HOLD BY HAND OR OTHERWISE, ANY BILLBOARD, SHOW CARD,
PLACARD OR ADVERTISEMENT, OR TO WEAR ANY COSTUME FOR THE PURPOSE OF
ATTRACTING ATTENTION OF THE PUBLIC, OR TO SCATTER OR THROW ANY
HANDBILLS, CIRCULARS, CARDS, NEWSPAPERS OR ANY ADVERTISING DEVICE OF
ANY DESCRIPTION, ALONG OR UPON ANY STREET OR SIDEWALK IN THE CITY OF
DALLAS.  ANY PERSON VIOLATING ANY OF THE PROVISIONS OF THIS ARTICLE
SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND UPON CONVICTION, MAY BE
FINED IN ANY SUM NOT EXCEEDING ONE HUNDRED DOLLARS." 

FN3  THE COMPLAINT UNDER WHICH THE APPELLANT WAS CONVICTED ALLEGED
THAT SHE DID "CARRY, HOLD BY HAND, DISTRIBUTE, SCATTER AND THROW
HANDBILLS AS AN ADVERTISING MEDIUM" IN VIOLATION OF THE ORDINANCE.  IT
WILL BE NOTED THAT THE WORD "DISTRIBUTE," WHICH DOES NOT APPEAR IN THE
ORDINANCE, IS A PART OF THE COMPLAINT; AND THAT THE WORDS "CARRY OR
HOLD BY HAND," WHICH APPEAR IN THE FIRST CLAUSE OF THE ORDINANCE AS
RELATING TO BILLBOARDS, ET CETERA, HAVE BEEN APPLIED IN THE COMPLAINT
AS THOUGH RELATING TO "HANDBILLS," WHICH APPEARS IN THE SECOND CLAUSE
OF THE ORDINANCE IN CONNECTION WITH PAPERS SCATTERED OR THROWN ON THE
STREET. 

MR. JUSTICE FRANKFURTER ACQUIESCES IN THE REFUSAL TO RECONSIDER KING
MFG. CO. V. AUGUSTA, 277 U.S. 100, ALTHOUGH, FOR THE REASONS SET FORTH
BY HOLMES AND BRANDEIS, JJ., DISSENTING, HE DEEMS THAT CASE TO HAVE
BEEN ERRONEOUSLY DECIDED.  OTHERWISE HE AGREES WITH THE OPINION IN THIS
CASE. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















LARGENT V. TEXAS, 318 U.S. 418 


NO. 559.  ARGUED FEBRUARY 12, 1943.  - DECIDED MARCH 8, 1943.  -
REVERSED. 


1.  SINCE THE DECISION OF THE COUNTY COURT IN THIS CASE WAS NOT
REVIEWABLE, ON THE RECORD MADE IN THAT COURT, BY ANY HIGHER COURT OF
THE STATE, AND SINCE THE DECISION SUSTAINED A MUNICIPAL ORDINANCE
AGAINST A CLAIM OF ITS INVALIDITY UNDER THE FEDERAL CONSTITUTION, THIS
COURT HAS JURISDICTION ON APPEAL UNDER JUD.  CODE SEC. 237(A).  P.
421. 

THAT THE APPELLANT MIGHT OBTAIN RELEASE BY A SUBSEQUENT AND DISTINCT
PROCEEDING IN THE SAME OR ANOTHER COURT OF THE STATE DOES NOT AFFECT
THE REVIEWABILITY OF THE PRESENT JUDGMENT. 

2.  A MUNICIPAL ORDINANCE WHICH, AS CONSTRUED AND APPLIED, FORBIDS
THE DISTRIBUTION OF RELIGIOUS PUBLICATIONS EXCEPT UPON A PERMIT, THE
ISSUANCE OF WHICH IS IN THE DISCRETION OF A MUNICIPAL OFFICER, HELD AN
ABRIDGMENT OF THE FREEDOM OF RELIGION, SPEECH, AND PRESS GUARANTEED BY
THE FOURTEENTH AMENDMENT.  P. 422. 

IT IS UNNECESSARY TO DETERMINE WHETHER THE DISTRIBUTION OF THE
PUBLICATIONS IN QUESTION CONSTITUTED SALES OR THE ACCEPTANCE OF
CONTRIBUTIONS. 

LARGENT V. TEXAS. 

APPEAL FROM THE COUNTY COURT OF LAMAR COUNTY, TEXAS. 

APPEAL FROM A CONVICTION AND SENTENCE FOR VIOLATION OF A MUNICIPAL
ORDINANCE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL BRINGS HERE FOR REVIEW THE CONVICTION OF APPELLANT FOR
VIOLATION OF ORDINANCE NO. 612 OF THE CITY OF PARIS, TEXAS, WHICH MAKES
IT UNLAWFUL FOR ANY PERSON TO SOLICIT ORDERS OR TO SELL BOOKS, WARES OR
MERCHANDISE WITHIN THE RESIDENCE PORTION OF PARIS WITHOUT FIRST FILING
AN APPLICATION AND OBTAINING A PERMIT.  THE ORDINANCE GOES ON TO
PROVIDE THAT "IF AFTER INVESTIGATION THE MAYOR DEEMS IT PROPER OR
ADVISABLE HE MAY ISSUE A WRITTEN PERMIT TO SAID PERSON FOR THE PURPOSE
OF SOLICITING, SELLING, CANVASSING OR CENSUS TAKING WITHIN THE
RESIDENCE PORTION OF THE CITY WHICH PERMIT SHALL STATE ON ITS FACE THAT
IT HAS BEEN ISSUED AFTER A THOROUGH INVESTIGATION."  FN1 

A COMPLAINT IN THE CORPORATION COURT OF PARIS CHARGED MRS. LARGENT,
THE APPELLANT, WITH VIOLATING THIS ORDINANCE BY UNLAWFULLY OFFERING
BOOKS FOR SALE WITHOUT MAKING APPLICATION FOR A PERMIT.  SHE WAS
CONVICTED AND APPEALED TO THE COUNTY COURT OF LAMAR COUNTY, TEXAS,
WHERE A TRIAL DE NOVO WAS HAD.  FN2  THERE A MOTION WAS FILED TO QUASH
THE COMPLAINT BECAUSE THE ORDINANCE VIOLATED THE FOURTEENTH AMENDMENT
TO THE CONSTITUTION OF THE UNITED STATES; AND, AT THE CONCLUSION OF THE
EVIDENCE, THERE WAS FILED A MOTION ON THE SAME GROUNDS FOR A FINDING OF
NOT GUILTY AND THE DISCHARGE OF THE APPELLANT FROM CUSTODY.  BOTH WERE
OVERRULED. 

APPELLANT'S EVIDENCE SHOWS THAT SHE CARRIES A CARD OF ORDINATION FROM
THE WATCH TOWER BIBLE AND TRACT SOCIETY, AN ORGANIZATION INCORPORATED
FOR THE PURPOSE OF PREACHING THE GOSPEL OF GOD'S KINGDOM.  THE SOCIETY
IS AN ORGANIZATION FOR JEHOVAH'S WITNESSES, AN EVANGELICAL GROUP,
FOUNDED UPON AND DRAWING INSPIRATION FROM THE TENETS OF CHRISTIANITY. 
THE WITNESSES SPREAD THEIR TEACHINGS UNDER THE DIRECTION OF THE SOCIETY
BY DISTRIBUTING THE BOOKS AND PAMPHLETS OBTAINED FROM THE SOCIETY BY
HOUSE TO HOUSE VISITS.  THEY BELIEVE THAT THEY HAVE A COVENANT WITH
JEHOVAH TO ENLIGHTEN THE PEOPLE AS TO THE TRUTHS ACCEPTED BY THE
WITNESSES BY PUTTING INTO THEIR HANDS, FOR STUDY, VARIOUS RELIGIOUS
PUBLICATIONS WITH TITLES SUCH AS CHILDREN, HOPE, CONSOLATION, KINGDOM
NEWS, DELIVERANCE, GOVERNMENT AND ENEMIES. 

MRS. LARGENT OFFERED SOME OF THESE BOOKS TO THOSE UPON WHOM SHE
CALLED FOR A CONTRIBUTION OF NOT TO EXCEED 25 CENTS FOR A BOUND BOOK
AND SEVERAL MAGAZINES OR TRACTS.  IF THE CONTRIBUTION WAS NOT MADE, THE
APPELLANT, IN ACCORDANCE WITH THE CUSTOM OF THE WITNESSES, WOULD
FREQUENTLY LEAVE A BOOK AND TRACTS WITHOUT RECEIVING ANY MONEY. 
APPELLANT WAS MAKING SUCH DISTRIBUTIONS WHEN ARRESTED.  SHE HAD NOT
FILED AN APPLICATION FOR OR RECEIVED A PERMIT UNDER THE ORDINANCE. 

THE WITNESSES LOOK UPON THEIR WORK AS CHRISTIAN AND CHARITABLE.  TO
THEM IT IS NOT SELLING BOOKS OR PAPERS BUT ACCEPTING CONTRIBUTIONS TO
FURTHER THE WORK IN WHICH THEY ARE ENGAGED.  THE PROSECUTING OFFICER
CONTENDED THAT THE OFFER OF THE PUBLICATIONS AND THE ACCEPTANCE OF THE
MONEY WAS A SOLICITATION OR SALE OF BOOKS, WARES OR MERCHANDISE.  AT
THE CONCLUSION OF THE HEARING, WHICH WAS WITHOUT A JURY, THE JUDGE
FOUND APPELLANT GUILTY OF VIOLATING THE ORDINANCE OF THE CITY OF PARIS
AND FINED HER ONE HUNDRED DOLLARS. 

THE APPEAL WAS BROUGHT HERE UNDER SEC. 237(A) OF THE JUDICIAL CODE
WHICH PROVIDES FOR REVIEW OF A FINAL JUDGMENT OF THE HIGHEST COURT OF A
STATE IN WHICH A DECISION COULD BE HAD.  BY OUR ORDER OF DECEMBER 21,
1942, WE REQUESTED COUNSEL TO DISCUSS WHETHER THIS JUDGMENT COULD BE
FULLY REVIEWED ON THIS RECORD BY A HIGHER STATE COURT BY HABEAS CORPUS
OR OTHER PROCEEDING.  UNDER THE STATUTES OF TEXAS, NO APPEAL LIES FROM
THE JUDGMENT OF THE COUNTY COURT IMPOSING A FINE OF THIS AMOUNT. 
VERNON'S TEXAS STAT. 1936, ARTICLE 53(CODE OF CRIMINAL PROCEDURE); FN3
EX PARTE LARGENT, 162 S.W.2D 419, 421, AND CASES CITED.  THE APPELLANT,
UNDER TEXAS PRACTICE, APPARENTLY COULD TEST BY HABEAS CORPUS THE
CONSTITUTIONALITY ON ITS FACE OF THE ORDINANCE UNDER WHICH SHE WAS
CONVICTED BUT MAY NOT USE THAT WRIT TO TEST THE CONSTITUTIONALITY OF
THE ORDINANCE AS APPLIED TO THE ACT OF DISTRIBUTING RELIGIOUS
LITERATURE.  CF. EX PARTE LARGENT, SUPRA.  SINCE THERE IS, BY TEXAS LAW
OR PRACTICE, NO METHOD WHICH HAS BEEN CALLED TO OUR ATTENTION FOR
REVIEWING THE CONVICTION OF APPELLANT, ON THE RECORD MADE IN THE COUNTY
COURT, WE ARE OF THE OPINION THE APPEAL IS PROPERLY HERE UNDER SEC.
237(A) OF THE JUDICIAL CODE.  THE PROCEEDING IN THE COUNTY COURT WAS A
DISTINCT SUIT.  IT DISPOSED OF THE CHARGE.  THE POSSIBILITY THAT THE
APPELLANT MIGHT OBTAIN RELEASE BY A SUBSEQUENT AND DISTINCT PROCEEDING,
AND ONE NOT IN THE NATURE OF A REVIEW OF THE PENDING CHARGE, IN THE
SAME OR A DIFFERENT COURT OF THE STATE DOES NOT AFFECT THE FINALITY OF
THE EXISTING JUDGMENT OR THE FACT THAT THIS JUDGMENT WAS OBTAINED IN
THE HIGHEST STATE COURT AVAILABLE TO THE APPELLANT.  CF. BANDINI CO. V.
SUPERIOR COURT, 284 U.S. 8, 14; BRYANT V. ZIMMERMAN, 278 U.S. 63, 70. 

UPON THE MERITS, THIS APPEAL IS GOVERNED BY RECENT DECISIONS OF THIS
COURT INVOLVING ORDINANCES WHICH LEAVE THE GRANTING OR WITHHOLDING OF
PERMITS FOR THE DISTRIBUTION OF RELIGIOUS PUBLICATIONS IN THE
DISCRETION OF MUNICIPAL OFFICERS.  FN4  IT IS UNNECESSARY TO DETERMINE
WHETHER THE DISTRIBUTIONS OF THE PUBLICATIONS IN QUESTION ARE SALES OR
CONTRIBUTIONS.  THE MAYOR ISSUES A PERMIT ONLY IF AFTER THOROUGH
INVESTIGATION HE "DEEMS IT PROPER OR ADVISABLE."  DISSEMINATION OF
IDEAS DEPENDS UPON THE APPROVAL OF THE DISTRIBUTOR BY THE OFFICIAL. 
THIS IS ADMINISTRATIVE CENSORSHIP IN AN EXTREME FORM.  IT ABRIDGES THE
FREEDOM OF RELIGION, OF THE PRESS AND OF SPEECH GUARANTEED BY THE
FOURTEENTH AMENDMENT.  FN5  REVERSED. 

FN1  THE APPLICABLE SECTION OF THE ORDINANCE READS AS FOLLOWS: 

"SECTION 1:  FROM AND AFTER THE PASSAGE OF THIS ORDINANCE IT SHALL BE
UNLAWFUL FOR ANY PERSON, FIRM OR CORPORATION TO SOLICIT ORDERS FOR
BOOKS, WARES, MERCHANDISE, OR ANY HOUSEHOLD ARTICLE OF ANY DESCRIPTION
WHATSOEVER WITHIN THE RESIDENCE PORTION OF THE CITY OF PARIS, OR TO
SELL BOOKS, WARES, MERCHANDISE OR ANY HOUSEHOLD ARTICLE OF ANY
DESCRIPTION WHATSOEVER WITHIN THE RESIDENCE DISTRICT OF THE CITY OF
PARIS, OR TO CANVASS, TAKE CENSUS WITHOUT FIRST FILING AN APPLICATION
IN WRITING WITH THE MAYOR AND OBTAINING A PERMIT, WHICH SAID
APPLICATION SHALL STATE THE CHARACTER OF THE GOODS, WARES, OR
MERCHANDISE INTENDED TO BE SOLD OR THE NATURE OF THE CANVASS TO BE
MADE, OR THE CENSUS TO BE TAKEN, AND BY WHAT AUTHORITY.  THE
APPLICATION SHALL ALSO STATE THE NAME OF THE PARTY DESIRING THE PERMIT,
HIS PERMANENT STREET ADDRESS AND NUMBER WHILE IN THE CITY AND IF AFTER
INVESTIGATION THE MAYOR DEEMS IT PROPER OR ADVISABLE HE MAY ISSUE A
WRITTEN PERMIT TO SAID PERSON FOR THE PURPOSE OF SOLICITING, SELLING,
CANVASSING OR CENSUS TAKING WITHIN THE RESIDENCE PORTION OF THE CITY
WHICH PERMIT SHALL STATE ON ITS FACE THAT IT HAS BEEN ISSUED AFTER A
THOROUGH INVESTIGATION." 

FN2  VERNON'S TEXAS STAT. 1936, ART. 876(CODE OF CRIMINAL PROCEDURE),
PROVIDES: 

"APPEALS FROM A CORPORATION COURT SHALL BE HEARD BY THE COUNTY COURT
EXCEPT IN CASES WHERE THE COUNTY COURT HAS NO JURISDICTION, IN WHICH
COUNTIES SUCH APPEALS SHALL BE HEARD BY THE PROPER COURT.  IN SUCH
APPEALS THE TRIAL SHALL BE DE NOVO.  SAID APPEALS SHALL BE GOVERNED BY
THE RULES OF PRACTICE AND PROCEDURE FOR APPEALS FROM JUSTICE COURTS TO
THE COUNTY COURT, SO FAR AS APPLICABLE." 

FN3  "COURT OF CRIMINAL APPEALS.  - THE COURT OF CRIMINAL APPEALS
SHALL HAVE APPELLATE JURISDICTION CO-EXTENSIVE WITH THE LIMITS OF THE
STATE IN ALL CRIMINAL CASES.  THIS ARTICLE SHALL NOT BE SO CONSTRUED AS
TO EMBRACE ANY CASE WHICH HAS BEEN APPEALED FROM ANY INFERIOR COURT TO
THE COUNTY COURT OR COUNTY COURT AT LAW, IN WHICH THE FINE IMPOSED BY
THE COUNTY COURT OR COUNTY COURT AT LAW SHALL NOT EXCEED ONE HUNDRED
DOLLARS." 

FN4  LOVELL V. GRIFFIN, 303 U.S. 444, 447, 451; SCHNEIDER V. STATE,
308 U.S. 147, 157, 163; CANTWELL V. CONNECTICUT, 310 U.S. 296, 302. 

FN5  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 570, 571; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303; GITLOW V. NEW YORK, 268 U.S. 652. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











CHOCTAW NATION V. U.S., 318 U.S. 423 


NO. 80.  ARGUED DECEMBER 7, 8, 1942.  - DECIDED MARCH 8, 1943.  - 95
CT.CLS.  192, REVERSED. 


1.  IN CONSTRUING INDIAN TREATIES, THEIR PLAIN TERMS MAY NOT BE
DISREGARDED IN ORDER TO REMEDY A CLAIMED INJUSTICE OR TO ARRIVE AT WHAT
IS ASSERTED TO BE THE UNDERSTANDING OF THE PARTIES.  P. 432. 

2.  UNDER THE AGREEMENT OF 1902 BETWEEN THE UNITED STATES AND THE
CHICKASAW AND CHOCTAW NATIONS, WHICH SUPERSEDED THE TREATY OF 1866 AND
SUPPLEMENTED THE ATOKA AGREEMENT OF 1897, ALLOTMENTS OF COMMON TRIBAL
LANDS TO CHOCTAW FREEDMEN WERE TO BE MADE WITHOUT DEDUCTION FROM THE
CHOCTAW NATION'S PROPORTIONATE INTEREST IN THE COMMON LANDS REMAINING
AND THE CHICKASAW NATION IS NOT ENTITLED TO COMPENSATION IN RESPECT OF
SUCH ALLOTMENTS.  P. 433. 

CHOCTAW NATION OF INDIANS V. UNITED STATES ET AL. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 317 U.S. 607, TO REVIEW A JUDGMENT AGAINST THE CHOCTAW
NATION IN A SUIT BROUGHT BY THE CHICKASAW NATION AGAINST THE UNITED
STATES UNDER A SPECIAL JURISDICTIONAL ACT, IN WHICH SUIT THE CHOCTAW
NATION WAS IMPLEADED AS A DEFENDANT ON MOTION OF THE UNITED STATES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

ON AUGUST 5, 1929, THIS SUIT WAS BEGUN AGAINST THE UNITED STATES BY
THE CHICKASAW NATION UNDER THE JURISDITIONAL ACT OF JUNE 7, 1924, 43
STAT. 537.  FN1  BY ORDER OF JANUARY 2, 1940, THE CHOCTAW NATION WAS
IMPLEADED AS A DEFENDANT ON MOTION OF THE UNITED STATES.  THE QUESTION
IS WHETHER THE CHICKASAW NATION IS ENTITLED TO COMPENSATION FOR ITS ONE
FOURTH INTEREST IN THE COMMON LANDS OF THE TWO NATIONS ALLOTTED TO THE
CHOCTAW FREEDMEN, AND, IF SO, WHO SHOULD COMPENSATE THE CHICKASAW
NATION.  THE COURT OF CLAIMS HELD THAT THE CHICKASAWS WERE ENTITLED TO
COMPENSATION AND THAT THE PRIMARY LIABILITY, THE AMOUNT OF WHICH WAS
RESERVED FOR FUTURE DETERMINATION, RESTED UPON THE CHOCTAW NATION. 
SINCE THERE WAS NO INDICATION THAT IT WOULD BE UNABLE TO SATISFY
WHATEVER JUDGMENT MIGHT BE MADE, THE COURT OF CLAIMS DECLINED TO
CONSIDER OR DECIDE THE LIABILITY, IF ANY, OF THE UNITED STATES.  FN2
WE GRANTED CERTIORARI BECAUSE THE CASE WAS THOUGHT TO RAISE IMPORTANT
QUESTIONS CONCERNING THE RELATIONS BETWEEN THE TWO TRIBES AND THE
UNITED STATES. 

AT THE TIME OF THE CIVIL WAR, THE CHICKASAWS AND THE CHOCTAWS WERE
SLAVE-OWNING TRIBES HOLDING THEIR LANDS IN COMMON, THEIR RESPECTIVE
INTERESTS BEING ONE-FOURTH AND THREE-FOURTHS.  BOTH FOUGHT ON THE SIDE
OF THE CONFEDERACY, AND, AFTER THE CESSATION OF HOSTILITIES, THEY
ENTERED INTO THE TREATY OF APRIL 28, 1866, 14 STAT. 769, WITH THE
UNITED STATES.  THAT TREATY ABOLISHED SLAVERY AMONG THEM AND PROVIDED
IN ARTICLE III FOR A FUND OF $300,000 WHICH WAS TO BE HELD IN TRUST FOR
THE TWO NATIONS AND PAID TO THEM (ONE-FOURTH TO THE CHICKASAWS AND
THREE-FOURTHS TO THE CHOCTAWS) WHEN THEY CONFERRED TRIBAL RIGHTS AND
PRIVILEGES UPON THEIR FORMER AFRICAN SLAVES AND GAVE THEM EACH FORTY
ACRES OF THE COMMON LANDS.  IF SUCH LAWS WERE NOT ADOPTED WITHIN TWO
YEARS, THE FUND WAS TO BE HELD FOR THE BENEFIT OF THOSE FORMER SLAVES
WHOM THE UNITED STATES SHOULD REMOVE FROM THE TERRITORY, INSTEAD OF FOR
THE TWO NATIONS.  HOWEVER, THE TREATY ALSO PROVIDED IN ARTICLE XLVI
THAT $200,000 OF THE FUND WAS TO BE PAID OVER IMMEDIATELY TO THE TWO
NATIONS AND THIS WAS DONE.  SEE ACT OF JULY 26, 1866, 14 STAT. 255,
259. 

IN 1882, NEITHER NATION HAVING ACTED IN ACCORDANCE WITH THE TREATY
AND THE UNITED STATES HAVING TAKEN NO STEPS TO REMOVE THE FREEDMEN, AN
ACT WAS PASSED BY CONGRESS WHICH PROVIDED THAT EITHER TRIBE MIGHT ADOPT
AND PROVIDE FOR THEIR FREEDMEN IN ACCORDANCE WITH ARTICLE III OF THE
TREATY.  ACT OF MAY 17, 1882, 22 STAT. 68, 72-73.  IN 1883 THE CHOCTAWS
ADOPTED THEIR FREEDMEN AND DECLARED THEM EACH ENTITLED TO FORTY ACRES
OF THE NATION'S LANDS, BUT NO ALLOTMENTS WERE ACTUALLY MADE.  FN3
CONGRESS THEREUPON APPROPRIATED FOR THE CHOCTAWS THEIR SHARE OF THE
BALANCE OF THE $300,000 FUND.  SEE ACT OF MARCH 3, 1885, 23 STAT. 362,
366.  THE CHICKASAWS NEVER ADOPTED THEIR FREEDMEN ALTHOUGH THEY TOOK AN
ABORTIVE STEP IN THAT DIRECTION IN 1873.  SEE THE CHICKASAW FREEDMEN,
193 U.S. 115, AND H. EX. DOC. NO. 207, 42D CONG., 3D SESS.  DESPITE
THIS FAILURE THE CHICKASAWS RECEIVED SOME OF THE BALANCE OF THEIR SHARE
OF THE ORIGINAL FUND.  FN4 

IN 1897, THE COMMISSION OF THE FIVE CIVILIZED TRIBES  FN5  NEGOTIATED
THE ATOKA AGREEMENT WITH THE TWO INDIAN NATIONS.  THAT PROVIDED FOR THE
ALLOTMENT IN SEVERALTY OF THE COMMON TRIBAL LANDS, INCLUDING FORTY-ACRE
ALLOTMENTS TO THE CHOCTAW FREEDMEN, AND CONTAINED A PROVISION FOR THE
REDUCTION OF ALLOTMENTS TO CHOCTAW INDIAN CITIZENS ON ACCOUNT OF THE
ALLOTMENTS TO THE CHOCTAW FREEDMEN, AS FOLLOWS: 

"PROVIDED THAT THE LANDS ALLOTTED TO THE CHOCTAW FREEDMEN, ARE TO BE
DEDUCTED FROM THE PORTION TO BE ALLOTTED UNDER THIS AGREEMENT TO THE
MEMBERS OF THE CHOCTAW TRIBE, SO AS TO REDUCE THE ALLOTMENTS TO THE
CHOCTAWS BY THE VALUE OF THE SAME AND NOT AFFECT THE VALUE OF THE
ALLOTMENTS TO THE CHICKASAWS." 

NO PROVISION WAS MADE IN THE ORIGINAL ATOKA AGREEMENT FOR ALLOTMENTS
TO THE CHICKASAW FREEDMEN, BUT IN CONFIRMING THE ATOKA AGREEMENT AS
PART OF THE CURTIS ACT OF 1898(30 STAT. 495) CONGRESS STIPULATED IN
SEC. 21 THAT FORTY-ACRE ALLOTMENTS WERE TO BE MADE TO THE CHICKASAW
FREEDMEN AS WELL, TO BE USED UNTIL THEIR RIGHTS UNDER THE TREATY OF
1866 WERE DETERMINED IN SUCH MANNER AS CONGRESS MIGHT DIRECT.  IT ALSO
PROVIDED IN SEC. 29 THAT ALL THE LANDS OF THE TWO TRIBES WERE TO BE
ALLOTTED TO THE MEMBERS OF THE TRIBES SO AS TO GIVE EACH ONE A FAIR AND
EQUAL SHARE, AND THAT THE LANDS ALLOTTED TO THE CHOCTAW AND CHICKASAW
FREEDMEN WERE "TO BE DEDUCTED FROM THE PORTION TO BE ALLOTTED UNDER
THIS AGREEMENT TO THE MEMBERS OF THE CHOCTAW AND CHICKASAW TRIBE SO AS
TO REDUCE THE ALLOTMENT TO THE CHOCTAWS AND CHICKASAWS BY THE VALUE OF
THE SAME."  (30 STAT. 505-06.)  THIS CONFIRMED AGREEMENT WAS APPROVED
BY BOTH TRIBES. 

BEFORE ANY ALLOTMENTS WERE MADE, HOWEVER, A SUPPLEMENTARY AGREEMENT
WAS ENTERED INTO BY THE UNITED STATES AND THE TWO NATIONS IN 1902(32
STAT. 641), WHICH RADICALLY CHANGED MATTERS BY PROVIDING FOR THE
ALLOTMENT TO EACH MEMBER OF THE TWO TRIBES OF BUT THREE HUNDRED AND
TWENTY ACRES INSTEAD OF THE ALIQUOT ALLOTMENT OF ALL THE LAND, AS
PROVIDED IN THE ATOKA AGREEMENT.  PERMANENT ALLOTMENTS OF FORTY ACRES
WERE TO BE MADE TO EACH CHICKASAW AND CHOCTAW FREEDMAN, THE REMAINING
UNALLOTTED LAND WAS TO BE SOLD AND THE PROCEEDS WERE TO BE USED TO
EQUALIZE ALLOTMENTS AS FAR AS NECESSARY, THE BALANCE BEING PAID INTO
THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE TWO TRIBES AND
DISTRIBUTED PER CAPITA AS THEIR OTHER FUNDS.  FN6  THAT AGREEMENT ALSO
CONTAINED ELABORATE PROVISIONS IN SECS. 36-40, INCLUSIVE, UNDER A
SUBHEADING ENTITLED "CHICKASAW FREEDMEN," FOR A SUIT IN THE COURT OF
CLAIMS TO DETERMINE WHETHER THE CHICKASAW FREEDMEN HAD ANY RIGHT TO
ALLOTMENTS UNDER THE TREATY OF 1866 AND SUBSEQUENT CONGRESSIONAL AND
TRIBAL LEGISLATION, THE UNITED STATES TO PAY THE VALUE OF THOSE
ALLOTMENTS TO THE TWO NATIONS ACCORDING TO THEIR RESPECTIVE INTERESTS
IF THE CHICKASAW FREEDMEN WERE HELD TO BE WITHOUT SUCH RIGHTS. 

THE 1902 AGREEMENT CONTAINED NO EXPRESS PROVISION CONCERNING THE
DEDUCTION OF ALLOTMENTS TO THE CHOCTAW FREEDMEN FROM ALLOTMENTS TO THE
MEMBERS OF THE CHOCTAW NATION OR FROM THAT NATION'S PROPORTIONATE SHARE
IN THE COMMON LANDS.  SECTION 40 CONCLUDED WITH A PROVISO THAT:
"NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO AFFECT OR
CHANGE THE EXISTING STATUS OR RIGHTS OF THE TWO TRIBES AS BETWEEN
THEMSELVES RESPECTING THE LANDS TAKEN FOR ALLOTMENT TO FREEDMEN, OR THE
MONEY, IF ANY, RECOVERED AS COMPENSATION THEREFOR, AS AFORESAID."  A
FURTHER PROVISION OF THE AGREEMENT, SEC. 68, DECLARED THAT:  "NO ACT OF
CONGRESS OR TREATY PROVISION, NOR ANY PROVISION OF THE ATOKA AGREEMENT,
INCONSISTENT WITH THIS AGREEMENT, SHALL BE IN FORCE IN SAID CHOCTAW AND
CHICKASAW NATIONS." 

FOLLOWING THE 1902 AGREEMENT, ALLOTMENTS WERE MADE FROM THE COMMON
LANDS TO THE CITIZENS AND THE FREEDMEN OF THE TWO TRIBES.  THE
CHICKASAWS RECEIVED NO COMPENSATION FOR THEIR ONE-FOURTH INTEREST IN
THE COMMON LANDS ALLOTTED TO THE CHOCTAW FREEDMEN EITHER BY REDUCTION
OF THE ALLOTMENTS TO THE CHOCTAW CITIZENS OR OF THAT TRIBE'S
PROPORTIONATE SHARE, OR BY ANY OTHER SETTLEMENT OR ADJUSTMENT.  IN THE
LITIGATION AUTHORIZED BY SECS. 36-40 OF THE 1902 AGREEMENT, THE
CHICKASAW FREEDMEN WERE HELD WITHOUT RIGHTS TO THE ALLOTMENTS WHICH HAD
BEEN GIVEN THEM, AND ACCORDINGLY JUDGMENT WAS RENDERED AGAINST THE
UNITED STATES FOR THE VALUE OF THEIR ALLOTMENTS IN THE SUM OF
$606,936.08, WHICH WAS PAID TO THE TWO NATIONS IN THE PROPORTION OF ONE
FOURTH TO THE CHICKASAWS AND THREE-FOURTHS TO THE CHOCTAWS.  UNITED
STATES V. CHOCTAW NATION, 38 CT. CLS. 558, AFFIRMED SUB NOM., THE
CHICKASAW FREEDMEN, 193 U.S. 115; AND SEE ACT OF JUNE 25, 1910, 36
STAT. 774, 807-08. 

THE COURT OF CLAIMS HELD THAT THE TREATY OF 1866 WAS NOT
DETERMINATIVE, THAT THE CONFIRMED ATOKA AGREEMENT REQUIRED THAT
ALLOTMENTS TO CHOCTAW FREEDMEN BE DEDUCTED FROM THE ALLOTMENTS TO THE
CHOCTAW CITIZENS AND THAT THE PROVISO TO SEC. 40 OF THE SUPPLEMENTAL
AGREEMENT OF 1902, WHILE "NOT WELL CHOSEN" FOR THE PURPOSE, PRESERVED
THIS REQUIREMENT.  WE TAKE A DIFFERENT VIEW. 

THE TREATY OF 1866, IN ARTICLE III OF WHICH THE CHICKASAWS
UNCONDITIONALLY CONSENTED TO ALLOTMENTS FROM THE COMMON LANDS TO
CHOCTAW FREEDMEN WHO MIGHT BE ADOPTED IN CONFORMITY WITH THE TREATY
REQUIREMENTS, IS NOT DETERMINATIVE BECAUSE IT WAS SUPERSEDED, BEFORE
ANY ALLOTMENTS WERE MADE, BY THE CONFIRMED ATOKA AGREEMENT WHICH
REQUIRED THE DEDUCTION OF ALL FREEDMEN'S ALLOTMENTS, BOTH CHOCTAW AND
CHICKASAW, FROM THOSE OF THE MEMBERS OF THEIR RESPECTIVE TRIBES.  THE
ATOKA AGREEMENT WAS IN TURN SUPPLEMENTED BY THE 1902 AGREEMENT, WHICH
OMITTED THE DEDUCTION REQUIREMENT OF THE ATOKA AGREEMENT AND CONTAINED
NOT A WORD ABOUT DEDUCTING FREEDMEN'S ALLOTMENTS FROM THE RESPECTIVE
TRIBAL SHARES IN THE COMMON LANDS.  IN VIEW OF SEC. 68 OF THE 1902
AGREEMENT, WHICH REPEALED ALL INCONSISTENT PROVISIONS OF THE ATOKA
AGREEMENT, THESE OMISSIONS WERE FATAL.  WHEN THE DIFFERENCES BETWEEN
THE ATOKA AGREEMENT AND THAT OF 1902 ARE CONSIDERED, IT IS CLEAR THAT
THE DEDUCTION PROVISION OF THE FORMER WAS INCONSISTENT WITH THE
LATTER.  THE ATOKA AGREEMENT PROVIDED FOR THE ALLOTMENT OF ALL THE LAND
WITH THE MEMBERS OF THE TRIBES SHARING EQUALLY, AND THE ALLOTMENTS TO
THEIR FREEDMEN WERE TO BE DEDUCTED FROM THEIR PORTION SO AS TO REDUCE
THEIR ALLOTMENTS PRO TANTO.  BUT UNDER THE 1902 AGREEMENT THE MEMBERS
OF BOTH TRIBES WERE TO RECEIVE DEFINITE ALLOTMENTS OF THREE HUNDRED AND
TWENTY ACRES INSTEAD OF EQUAL SHARES OF THE WHOLE.  IF THE FORTY-ACRE
ALLOTMENTS TO FREEDMEN WERE DEDUCTED FROM THE SPECIFIC ALLOTMENTS TO
MEMBERS OF THEIR TRIBES SO AS TO REDUCE THOSE ALLOTMENTS "BY THE VALUE
OF THE SAME," AS REQUIRED BY THE ATOKA AGREEMENT, THE MEMBERS WOULD NOT
HAVE RECEIVED THEIR DESIGNATED ACREAGE.  ALSO, AN ATTEMPT TO SHIFT THE
DEDUCTION BURDEN FROM MEMBERS' ALLOTMENTS TO THE PROPORTIONATE SHARES
OF THE TRIBES IN THE UNALLOTTED LANDS WHICH WERE TO BE SOLD IS BARRED
BY THE FACT THAT THE ATOKA AGREEMENT REQUIRED DEDUCTION TO REDUCE THE
VALUE OF MEMBERS' ALLOTMENTS, NOT TO REDUCE THE RESPECTIVE INTERESTS OF
THE TRIBES IN THE PROCEEDS FROM THE SALE OF UNALLOTTED LANDS, A
PROVISION WHOLLY FOREIGN TO THE ATOKA AGREEMENT. 

FURTHER PROOF OF THE INCONSISTENCY BETWEEN THE 1902 AGREEMENT AND THE
DEDUCTION REQUIREMENT OF THE ATOKA AGREEMENT IS THE FACT THAT
ALLOTMENTS TO CHICKASAW FREEDMEN WERE MADE FROM THE COMMON LANDS AND
BOTH TRIBES WERE TO AND DID SHARE, "ACCORDING TO THEIR RESPECTIVE
INTERESTS," IN THE ULTIMATE RECOVERY OF THE VALUE OF THOSE LANDS FROM
THE UNITED STATES, AS PROMISED IN SEC. 40.  ONLY THE CHICKASAWS SHOULD
HAVE BEEN COMPENSATED FOR THE ALLOTMENTS TO THEIR FREEDMEN IF THE
DEDUCTION REQUIREMENT OF THE ATOKA AGREEMENT WAS CARRIED OVER INTO THE
1902 AGREEMENT, WHETHER THAT PROVISION BE TAKEN AS REQUIRING THE
REDUCTION OF MEMBERS' ALLOTMENTS (WHICH IT DID), OR AS REQUIRING THE
REDUCTION OF THE TRIBES' PROPORTIONATE SHARES IN THE COMMON LANDS
(WHICH IT DID NOT).  THE CIRCUMSTANCE THAT BOTH TRIBES WERE TO AND DID
SHARE IN THE AWARD SUPPORTS THE CONCLUSION THAT ALLOTMENTS TO ALL
FREEDMEN WERE TO BE CHARGED TO THE COMMON HOLDINGS WITHOUT DEDUCTION
FROM THE RESPECTIVE TRIBAL INTERESTS. 

DESPITE THESE INCONSISTENCIES, THE CHICKASAWS URGE THAT THE PROVISO
TO SEC. 40 OF THE 1902 AGREEMENT PRESERVED THE DEDUCTION REQUIREMENT OF
THE ATOKA AGREEMENT.  THE TERMS OF THE PROVISO, HOWEVER, DO NOT SUPPORT
THIS CONCLUSION.  IT DOES NOT READ, AS THE CHICKASAWS WOULD HAVE IT,
THAT "NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED TO AFFECT
OR CHANGE THE EXISTING STATUS OR RIGHTS OF THE TWO TRIBES AS BETWEEN
THEMSELVES RESPECTING THE LANDS TAKEN FOR ALLOTMENT TO FREEDMEN, OR THE
MONEY, IF ANY, RECOVERED AS COMPENSATION THEREFOR, AS AFORESAID." 
ACTUALLY THE PROVISO CONCERNS ITSELF ONLY WITH THE POSSIBLE EFFECT OF
"THIS PARAGRAPH" WHICH MUST MEAN SECS. 36-40, GROUPED UNDER THE HEADING
"CHICKASAW FREEDMEN."  THAT "PARAGRAPH" MERELY REQUIRED THAT ALLOTMENTS
TO THE CHICKASAW FREEDMEN WERE TO BE PERMANENT, THAT THEIR RIGHT TO
ALLOTMENTS BE LITIGATED IN THE COURT OF CLAIMS, AND THAT ANY RESULTING
AWARD BE PAID TO BOTH TRIBES BY THE UNITED STATES.  NOT ONCE IN THE
ENTIRE "PARAGRAPH" IS THERE A REFERENCE TO CHOCTAW FREEDMEN.  AND,
SINCE THE PROVISO CONCLUDES WITH A REFERENCE TO "THE MONEY, IF ANY,
RECOVERED AS COMPENSATION THEREFOR, AS AFORESAID," IT EVEN MORE CLEARLY
WAS NOT CONCERNED WITH ALLOTMENTS TO CHOCTAW FREEDMEN BECAUSE NO
PROVISION WAS MADE IN THE 1902 AGREEMENT FOR MONEY RECOVERY IN THE CASE
OF ALLOTMENTS TO CHOCTAW FREEDMEN.  IF THE PROVISO IS CONSTRUED AS
PRESERVING THE DEDUCTION REQUIREMENT, IT IS REWRITTEN IN EFFECT, AND
THIS SHOULD NOT BE DONE.    IN SO CONSTRUING THE PROVISO, THE COURT OF
CLAIMS RELIED HEAVILY UPON CERTAIN FINDINGS OF FACT, SET FORTH BELOW,
FN7  TO SHOW THAT WAS THE INTENTION AND UNDERSTANDING OF THE PARTIES. 
OF COURSE, TREATIES ARE CONSTRUED MORE LIBERALLY THAN PRIVATE
AGREEMENTS, AND TO ASCERTAIN THEIR MEANING WE MAY LOOK BEYOND THE
WRITTEN WORDS TO THE HISTORY OF THE TREATY, THE NEGOTIATIONS, AND THE
PRACTICAL CONSTRUCTION ADOPTED BY THE PARTIES.  FACTOR V. LAUBENHEIMER,
290 U.S. 276, 294-95; COOK V. UNITED STATES, 288 U.S. 102, 112. 
ESPECIALLY IS THIS TRUE IN INTERPRETING TREATIES AND AGREEMENTS WITH
THE INDIANS; THEY ARE TO BE CONSTRUED, SO FAR AS POSSIBLE, IN THE SENSE
IN WHICH THE INDIANS UNDERSTOOD THEM, AND "IN A SPIRIT WHICH GENEROUSLY
RECOGNIZES THE FULL OBLIGATION OF THIS NATION TO PROTECT THE INTERESTS
OF A DEPENDENT PEOPLE."  TULEE V. WASHINGTON, 315 U.S. 681, 684-85. 
SEE ALSO UNITED STATES V. SHOSHONE TRIBE, 304 U.S. 111, 116; CHOCTAW
NATION V. UNITED STATES, 119 U.S. 1, 28.  BUT EVEN INDIAN TREATIES
CANNOT BE REWRITTEN OR EXPANDED BEYOND THEIR CLEAR TERMS TO REMEDY A
CLAIMED INJUSTICE OR TO ACHIEVE THE ASSERTED UNDERSTANDING OF THE
PARTIES.  CF. UNITED STATES V. CHOCTAW AND CHICKASAW NATIONS, 179 U.S.
494, 531-33; UNITED STATES V. MILLE LAC CHIPPEWAS, 229 U.S. 498, 500. 
HERE THE WORDS OF THE PROVISO ARE INAPPOSITE TO THE PROPOSED
CONSTRUCTION AND WE DO NOT BELIEVE THE FINDINGS ARE ENOUGH TO WARRANT
DEPARTING FROM THE LANGUAGE USED.  THE FINDINGS ARE MERELY FINDINGS AS
TO EVIDENCE.  THERE IS NO FINDING AS TO THE ULTIMATE FACT WHETHER OR
NOT THE TWO TRIBES INTENDED TO AGREE ON SOMETHING DIFFERENT FROM THAT
APPEARING ON THE FACE OF THE 1902 AGREEMENT.  WITHOUT SUCH A FINDING
THE AGREEMENT MUST BE INTERPRETED ACCORDING TO ITS UNAMBIGUOUS
LANGUAGE.  FURTHERMORE, IF WE WERE TO FIND THE ULTIMATE FACT, WE
SERIOUSLY DOUBT WHETHER WE COULD DISCOVER FROM THESE EVIDENTIARY
FINDINGS WHAT THE AGREEMENT AMONG THE TWO TRIBES AND THE UNITED STATES
WAS, IF OTHER THAN THAT EXPRESSED IN THE 1902 AGREEMENT.  FOR THE MOST
PART, THE FINDINGS ARE CONCERNED WITH THE ASSERTIONS AND CLAIMS OF THE
CHICKASAWS.  THE ONLY INDICATION THAT THE CHOCTAWS EVER SHARED THOSE
VIEWS AT ANY TIME IS THEIR REQUEST FOR AN "ADDITIONAL DECREE," UPON
WHICH NO ACTION WAS EVER TAKEN. 

EQUITABLE CONSIDERATIONS DO NOT DICTATE A DIFFERENT RESULT.  BY THE
TREATY OF 1866 BOTH TRIBES SHARED IN THE $200,000 ADVANCE PAYMENT FOR
THE ADOPTION OF THEIR FREEDMEN AND THE ALLOTMENT OF FORTY ACRES OF LAND
TO THEM.  EVEN THOUGH THE CHICKASAWS NEVER ADOPTED THEIR FREEDMEN, THEY
DID RECEIVE A PORTION OF THEIR SHARE OF THE BALANCE OF THE ORIGINAL
$300,000 TREATY FUND.  FN8  WHEN THEY CONTESTED THE RIGHT OF THEIR
FREEDMEN TO ALLOTMENTS, THE UNITED STATES EXPLICITLY PROMISED IN THE
1902 AGREEMENT TO REIMBURSE THEM IF THERE WERE AN ADVERSE JUDICIAL
DECISION.  THE AGREEMENT CONTAINED NO PROMISE TO REIMBURSE THEM FOR
ALLOTMENTS TO CHOCTAW FREEDMEN, AND, IN VIEW OF THE SPECIFIC PROMISE
WITH REGARD TO THEIR OWN FREEDMEN, NONE SHOULD BE IMPLIED. 

WE CONCLUDE THAT ALLOTMENTS FROM THE COMMON TRIBAL LANDS WERE TO BE
MADE UNDER THE 1902 AGREEMENT TO CHOCTAW FREEDMEN WITHOUT DEDUCTING
THOSE ALLOTMENTS FROM THE CHOCTAW NATION'S SHARE OF THE LANDS OR
OTHERWISE COMPENSATING THE CHICKASAWS FOR THEIR INTEREST IN THE LANDS
SO ALLOTTED.  SINCE NO LIABILITY EXISTS, IT IS UNNECESSARY TO CONSIDER
WHETHER THE CHOCTAW NATION OR THE UNITED STATES IS PRIMARILY LIABLE, OR
WHETHER THE COURT OF CLAIMS HAD POWER UNDER THE JURISDICTIONAL ACT (43
STAT. 537) TO PLACE LIABILITY UPON THE CHOCTAW NATION. 

THE JUDGMENT BELOW IS REVERSED AND THE CAUSE REMANDED WITH
INSTRUCTIONS TO DISMISS THE PETITION.  REVERSED. 

FN1  AS AMENDED BY 44 STAT. 568, AND 45 STAT. 1229. 

FN2  95 CT. CLS. 192.  THE UNITED STATES, WHILE INSISTING THAT THE
COURT OF CLAIMS CORRECTLY DECIDED THAT THE PRIMARY LIABILITY RESTS UPON
THE CHOCTAW NATION, HAS JOINED THAT NATION IN URGING BEFORE THIS COURT
THAT NO LIABILITY IN FACT EXISTS. 

FN3  THE ACT OF ADOPTION IS SET FORTH IN THE ANNUAL REPORT OF THE
COMMISSIONER OF INDIAN AFFAIRS FOR 1884.  SEE H. EX. DOC. NO. 1, PT. 5,
48TH CONG., 2D SESS., PP. 36-37. 

FN4  SEE ACT OF JULY 26, 1866, 14 STAT. 255, 259; ACT OF APRIL 10,
1869, 16 STAT. 13, 39; ACT OF MAY 17, 1882, 22 STAT. 68, 72. 

FN5  THIS COMMISSION, COMMONLY KNOWN AS THE DAWES COMMISSION, WAS
CREATED BY THE ACT OF MARCH 3, 1893, 27 STAT. 612, 645, TO NEGOTIATE
WITH THE CREEKS, CHEROKEES, CHOCTAWS, CHICKASAWS AND SEMINOLES FOR THE
EXTINGUISHMENT OF TRIBAL TITLES TO LAND AND THE ALLOTMENT OF THEIR
LANDS IN SEVERALTY. 

FN6 THE BALANCE WAS DISTRIBUTED ACCORDING TO THE HISTORIC
PROPORTIONATE INTERESTS OF THE TRIBES, ONE-FOURTH TO THE CHICKASAWS AND
THREEFOURTHS TO THE CHOCTAWS.  CHOCTAW NATION V. UNITED STATES, 83 CT.
CLS. 140, 144. 

FN7  THE COURT FOUND: 

(A)  THAT THE CHICKASAWS OBJECTED TO ALLOTMENTS TO THE CHOCTAW
FREEDMEN OUT OF THE COMMONLY OWNED LANDS; 

(B)  THAT THE CHICKASAWS INSISTED THAT THE 1902 AGREEMENT CONTAIN
SOME PROVISION SAVING THEIR RIGHTS NOT TO HAVE ALLOTMENTS TO THE
CHOCTAW FREEDMEN MADE AT THE EXPENSE OF THE CHICKASAWS' INTEREST IN THE
COMMON LANDS, AND AFTER A CONFERENCE WITH THE ASSISTANT ATTORNEY
GENERAL WHO WAS LEGAL ADVISER TO THE DEPARTMENT OF THE INTERIOR, IT WAS
AGREED THAT THE PROVISO TO SEC. 40 BE INCLUDED TO PROTECT THEIR
INTERESTS; 

(C)  THAT THE CHOCTAW NATION, PRIOR TO THE ENTRY OF FINAL JUDGMENT ON
JANUARY 24, 1910, IN THE PROCEEDING AUTHORIZED BY SECS. 36-40(SEE 38
CT. CLS. 558; 193 U.S. 115), FILED AN "APPLICATION FOR ADDITIONAL
DECREE" IN WHICH IT SET OUT THAT THE CHICKASAWS WERE ENTITLED TO
COMPENSATION FOR THEIR PROPORTIONATE INTEREST IN THE COMMONLY OWNED
LANDS ALLOTTED TO THE CHOCTAW FREEDMEN AND REQUESTED THE COURT TO ENTER
A SUPPLEMENTAL DECREE DEDUCTING FROM THEIR PROPORTIONATE SHARE OF THE
JUDGMENT ONE-FOURTH OF THE VALUE OF THE JOINTLY HELD LANDS ALLOTTED TO
THE CHOCTAW FREEDMEN AND ADD THAT AMOUNT TO THE AMOUNT TO BE
APPORTIONED TO THE CHICKASAW NATION UNDER THE JUDGMENT.  (NO ACTION WAS
TAKEN ON THIS REQUEST.) 

(D)  THAT ON MARCH 11, 1910, THE GOVERNOR OF THE CHICKASAW NATION
WROTE TO THE COMMISSIONER OF INDIAN AFFAIRS REQUESTING PERMISSION TO
EMPLOY SEPARATE COUNSEL FOR THE CHICKASAW NATION AND SETTING OUT IN
SUPPORT OF THIS REQUEST THE CHICKASAWS' CLAIM FOR COMPENSATION FOR
LANDS ALLOTTED TO THE CHOCTAW FREEDMEN OUT OF THE COMMON DOMAIN OF THE
TWO NATIONS WITHOUT THE CONSENT OF THE CHICKASAWS AND POINTED OUT THAT
THE CHICKASAWS HAD HAD NO ATTORNEY TO REPRESENT THEM AT THE TIME THAT
JUDGMENT WAS ENTERED IN THE SUIT BROUGHT PURSUANT TO THE SUPPLEMENTAL
AGREEMENT.  THE COMMISSIONER RECOMMENDED DENIAL OF THE REQUEST ON THE
GROUND THAT IN VIEW OF THE ADMISSION OF THE CHOCTAWS IN THEIR REQUEST
FOR AN ADDITIONAL DECREE, JUDICIAL ACTION DID NOT SEEM TO BE NECESSARY
TO SETTLE THE CONTROVERSY. 

FN8  SEE NOTE 4, ANTE. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



CORN EXCHANGE BANK V. KLAUDER, 318 U.S. 434 


NO. 452.  ARGUED FEBRUARY 2, 3, 1943.  - DECIDED MARCH 8, 1943.  - 129
F.2D 24, 894, AFFIRMED. 


WITHIN FOUR MONTHS OF BANKRUPTCY THE DEBTOR HAD ASSIGNED ACCOUNTS
RECEIVABLE AS SECURITY FOR CONCURRENT LOANS.  NOTICE TO THOSE WHO OWED
THE ACCOUNTS WAS NOT GIVEN, ALTHOUGH UNDER APPLICABLE LOCAL LAW NOTICE
WAS NECESSARY IN ORDER TO PRECLUDE POSSIBLE SUPERIOR RIGHTS IN
SUBSEQUENT BONA FIDE PURCHASERS OF THE ACCOUNTS.  HELD, THAT THE
ASSIGNMENTS WERE PREFERENTIAL UNDER SEC. 60(A) OF THE BANKRUPTCY ACT
AND THUS AVOIDABLE BY THE TRUSTEE IN BANKRUPTCY UNDER SEC. 60(B)
THEREOF.  P. 439. 

CORN EXCHANGE NATIONAL BANK & TRUST CO. ET AL. V. KLAUDER, TRUSTEE IN
BANKRUPTCY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 317 U.S. 617, TO REVIEW THE REVERSAL OF AN ORDER OF THE
BANKRUPTCY COURT WHICH AFFIRMED ORDERS OF THE REFEREE ALLOWING CERTAIN
CLAIMS OF THE PETITIONERS AS SECURED CLAIMS AGAINST THE BANKRUPT
ESTATE. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE REQUIRES US TO DETERMINE THE APPLICATION OF THE PREFERENCE
PROVISIONS OF SEC. 60(A) OF THE BANKRUPTCY ACT AS AMENDED BY THE
CHANDLER ACT OF JUNE 22, 1938,  FN1  TO LOANS MADE ON ASSIGNMENTS OF
ACCOUNTS RECEIVABLE. 

THE QUAKER CITY SHEET METAL COMPANY BECAME EMBARRASSED FOR WANT OF
WORKING CAPITAL IN 1938.  CREDITORS REPRESENTING A LARGE PERCENTAGE OF
CLAIMS LATER PROVED IN BANKRUPTCY AGREED TO SUBORDINATE THEIR CLAIMS TO
THOSE WHICH MIGHT BE INCURRED FOR NEW WORKING CAPITAL.  A CREDITOR'S
COMMITTEE TOOK SUPERVISION OF THE BUSINESS AND IN 1938 ARRANGED WITH
THE PETITIONER BANK TO ADVANCE FROM TIME TO TIME MONEY FOR PAYROLL AND
OTHER NEEDS ON CONCURRENTLY MADE ASSIGNMENTS OF ACCOUNTS RECEIVABLE. 
AT THE TIME OF BANKRUPTCY THE COMPANY WAS INDEBTED TO THE BANK FOR
LOANS SO MADE ON CONTEMPORARY ASSIGNMENTS BETWEEN JANUARY 19, 1940, AND
APRIL 5, 1940.  ON APRIL 12, 1940, PETITIONER DEARDEN MADE A LOAN ON
SIMILAR SECURITY.  AN INVOLUNTARY PETITION IN BANKRUPTCY WAS FILED
AGAINST THE COMPANY ON APRIL 18, 1940, FOLLOWED BY ADJUDICATION ON MAY
7, 1940.  WHEN THE ASSIGNMENTS WERE MADE THEY WERE RECORDED ON THE
COMPANY'S BOOKS, BUT NEITHER PETITIONER HAD EVER GIVEN NOTICE OF
ASSIGNMENT TO THE DEBTORS WHOSE OBLIGATIONS HAD BEEN TAKEN AS
SECURITY.  BECAUSE OF THIS OMISSION THE TRUSTEE CHALLENGED THEIR RIGHT
TO THE BENEFITS OF THEIR SECURITY.  HE WAS OVERRULED BY THE REFEREE AND
THE DISTRICT COURT, BUT HIS POSITION WAS SUSTAINED BY THE CIRCUIT COURT
OF APPEALS FOR THE THIRD CIRCUIT,  FN2  ON AN INTERPRETATION OF SEC.
60(A) WHICH CONFLICTS WITH AN INTERPRETATION BY THE CIRCUIT COURT OF
APPEALS FOR THE FIFTH CIRCUIT.  FN3  HENCE WE GRANTED CERTIORARI.  FN4 


"A PREFERENCE IS A TRANSFER, AS DEFINED IN THIS ACT, OF ANY OF THE
PROPERTY OF A DEBTOR TO OR FOR THE BENEFIT OF A CREDITOR FOR OR ON
ACCOUNT OF AN ANTECEDENT DEBT, MADE OR SUFFERED BY SUCH DEBTOR WHILE
INSOLVENT AND WITHIN FOUR MONTHS BEFORE THE FILING BY OR AGAINST HIM OF
THE PETITION IN BANKRUPTCY,  ...  THE EFFECT OF WHICH TRANSFER WILL BE
TO ENABLE SUCH CREDITOR TO OBTAIN A GREATER PERCENTAGE OF HIS DEBT THAN
SOME OTHER CREDITOR OF THE SAME CLASS.  FOR THE PURPOSES OF
SUBDIVISIONS A AND B OF THIS SECTION, A TRANSFER SHALL BE DEEMED TO
HAVE BEEN MADE AT THE TIME WHEN IT BECAME SO FAR PERFECTED THAT NO BONA
FIDE PURCHASER FROM THE DEBTOR AND NO CREDITOR COULD THEREAFTER HAVE
ACQUIRED ANY RIGHTS IN THE PROPERTY SO TRANSFERRED SUPERIOR TO THE
RIGHTS OF THE TRANSFEREE THEREIN, AND, IF SUCH TRANSFER IS NOT SO
PERFECTED PRIOR TO THE FILING OF THE PETITION IN BANKRUPTCY  ...  , IT
SHALL BE DEEMED TO HAVE BEEN MADE IMMEDIATELY BEFORE BANKRUPTCY." 

ASSIGNMENT.  FN5 

THE CIRCUIT COURT OF APPEALS HAS DETERMINED, AND WE ACCEPT ITS
CONCLUSION, THAT AT ALL RELEVANT TIMES IT WAS THE LAW OF PENNSYLVANIA,
WHERE THESE TRANSACTIONS TOOK PLACE, THAT BECAUSE OF THE FAILURE OF
THESE ASSIGNEES TO GIVE NOTICE TO THE DEBTORS WHOSE OBLIGATIONS WERE
TAKEN, A SUBSEQUENT GOOD-FAITH ASSIGNEE, GIVING SUCH NOTICE, WOULD
ACQUIRE A RIGHT SUPERIOR TO THEIRS.  FN6 IT HELD THAT THE ASSIGNMENTS
WERE PREFERENCES UNDER SEC. 60(A) AND THEREFORE, UNDER THE TERMS OF
SEC. 60(B),  FN7  INOPERATIVE AGAINST THE TRUSTEE. 

THIS IS UNDOUBTEDLY THE EFFECT OF A LITERAL READING OF THE ACT.  ITS
APPARENT COMMAND IS TO TEST THE EFFECTIVENESS OF A TRANSFER, AS AGAINST
THE TRUSTEE, BY THE STANDARDS WHICH APPLICABLE STATE LAW  FN8  WOULD
ENFORCE AGAINST A GOOD-FAITH PURCHASER.  ONLY WHEN SUCH A PURCHASER IS
PRECLUDED FROM OBTAINING SUPERIOR RIGHTS IS THE TRUSTEE SO PRECLUDED. 
SO LONG AS THE TRANSACTION IS LEFT OPEN TO POSSIBLE INTERVENING RIGHTS
TO SUCH A PURCHASER, IT IS VULNERABLE TO THE INTERVENING BANKRUPTCY. 
BY THUS POSTPONING THE EFFECTIVE TIME OF THE TRANSFER, THE DEBT, WHICH
IS EFFECTIVE WHEN ACTUALLY MADE, WILL BE MADE ANTECEDENT TO THE DELAYED
EFFECTIVE DATE OF THE TRANSFER AND THEREFORE WILL BE MADE A
PREFERENTIAL TRANSFER IN LAW, ALTHOUGH IN FACT MADE CONCURRENTLY WITH
THE ADVANCE OF MONEY.  IN THIS CASE THE TRANSFERS, GOOD BETWEEN THE
PARTIES, HAD NEVER BEEN PERFECTED AS AGAINST GOOD-FAITH PURCHASERS BY
NOTICE TO THE DEBTORS AS THE LAW REQUIRED, AND SO THE CONCLUSION
FOLLOWS FROM THIS READING OF THE ACT THAT THE PETITIONERS LOSE THEIR
SECURITY UNDER THE PREFERENCE PROHIBITION OF SEC. 60(B). 

SUCH A CONSTRUCTION IS CAPABLE OF HARSH RESULTS,  FN9  AND IT IS SAID
THAT IT WILL SERIOUSLY HAMPER THE BUSINESS OF "NONNOTIFICATION
FINANCING," OF WHICH THE PRESENT CASE IS AN INSTANCE.  THIS BUSINESS IS
OF LARGE MAGNITUDE AND IT IS SAID TO BE OF PARTICULAR BENEFIT TO SMALL
AND STRUGGLING BORROWERS N10.  SUCH CONSEQUENCES MAY, AS PETITIONERS
ARGUE, BE SERIOUS, BUT WE FIND NOTHING IN CONGRESSIONAL POLICY WHICH
WARRANTS TAKING THIS CASE OUT OF THE LETTER OF THE ACT. 

THE COMMITTEE OF THE HOUSE OF REPRESENTATIVES WHICH REPORTED SEC.
60(A) AS QUOTED ABOVE WAS FULLY AWARE OF THE VICISSITUDES OF ITS
PREDECESSORS.  FN11  THESE ARE RECITED IN DETAIL ELSEWHERE, AND NEED
NOT BE REPEATED HERE BEYOND A GENERAL STATEMENT THAT FOR THIRTY-FIVE
YEARS CONGRESS HAS CONSISTENTLY REACHED OUT TO STRIKE DOWN SECRET
TRANSFERS, AND THE COURTS HAVE WITH EQUAL CONSISTENCY FOUND ITS EFFORTS
FAULTY OR INSUFFICIENT TO THAT END.  FN12  AGAINST SUCH A BACKGROUND,
SEC. 60(A) WAS DRAWN AND REPORTED TO CONGRESS WITH THIS EXPLANATION OF
ITS PURPOSE AND EFFECT:  "THE NEW TEST IS MORE COMPREHENSIVE AND
ACCORDS WITH THE CONTEMPLATED PURPOSE OF STRIKING DOWN SECRET LIENS. 
IT IS PROVIDED THAT THE TRANSFER SHALL BE DEEMED TO HAVE BEEN MADE WHEN
IT HAS BECOME SO FAR PERFECTED THAT NEITHER A BONAFIDE PURCHASER NOR
CREDITOR COULD THEREAFTER HAVE ACQUIRED RIGHTS SUPERIOR TO THOSE OF THE
TRANSFEREE.  AS THUS DRAFTED, IT INCLUDES A FAILURE TO RECORD AND ANY
OTHER GROUND WHICH COULD BE ASSERTED BY A BONA-FIDE PURCHASER OR A
CREDITOR OF THE TRANSFEROR, AS AGAINST THE TRANSFEREE.  A PROVISION
ALSO HAS BEEN ADDED WHICH MAKES THE TEST EFFECTIVE EVEN THOUGH THE
TRANSFER MAY NEVER HAVE ACTUALLY BECOME PERFECTED."  FN13 

WHATEVER ADVANTAGES MAY INHERE IN NON-NOTIFICATION FINANCING WHICH
MIGHT HAVE MADE CONGRESS RELUCTANT TO JEOPARDIZE IT, THE SYSTEM ALSO
HAS CHARACTERISTICS WHICH MAKE IT IMPOSSIBLE FOR US TO CONCLUDE THAT IT
IS TO BE DISTINGUISHED FROM THE SECRET LIENS CONGRESS WAS ADMITTEDLY
TRYING TO REACH. 

RECEIVABLES OFTEN ARE ASSIGNED ONLY WHEN CREDIT IN A SIMILAR AMOUNT
IS NOT AVAILABLE THROUGH OTHER CHANNELS.  FN14  INTEREST AND OTHER
CHARGES ARE HIGH,  FN15  AND AN ASSIGNMENT OFTEN IS CORRECTLY
UNDERSTOOD AS A SYMPTOM OF FINANCIAL DISTRESS.  FN16  THE BORROWER DOES
NOT WISH HIS CUSTOMERS TO LEARN OF HIS BORROWING ARRANGEMENT FOR THE
REASON, AMONG OTHERS, THAT CUSTOMERS, PARTICULARLY IN PLACING ORDERS
FOR FUTURE DELIVERY, PREFER TO RELY ON SOLVENT SUPPLIERS.  AND OFTEN
THE BORROWER DESIRES TO CONCEAL THE FACT THAT HE IS BEING FINANCED BY
THIS METHOD, LEST KNOWLEDGE LEAD TO A WITHDRAWAL OF FURTHER CREDIT OR
REFUSAL OF NEW CREDIT.  FN17  THE BORROWER AND THE LENDER ON ASSIGNED
ACCOUNTS RECEIVABLE THUS HAVE A MUTUAL INTEREST IN NOT MAKING THE
TRANSACTION KNOWN.  SO LONG AS THE TRANSACTION MAY REMAIN A SECRET, IT
IS NOT APT TO BECOME KNOWN TO THE TRADE.  WHEN THE TRANSACTION IS
COMMUNICATED TO THE TRADE DEBTORS IT IS KNOWN WHERE THERE IS LESS
MOTIVE TO KEEP IT UNDER COVER.  COMMERCIAL AND TRADE REPORTING AGENCIES
ARE DILIGENT TO OBTAIN CREDIT INFORMATION OF THIS CHARACTER.  ITS
DISSEMINATION MAY OFTEN HAVE ADVERSE EFFECTS UPON BOTH THE BORROWER AND
THE LENDER, BUT THEY ARE NOT THE ONLY INTERESTED PARTIES.  SECRECY HAS
THE EFFECT OF INDUCING OTHERS TO GO ALONG WITH THE BORROWER IN
IGNORANCE, WHERE THEY WOULD NOT DO SO IF INFORMED. 

IT IS SAID THAT ASSIGNMENTS SUCH AS ARE INVOLVED IN THIS CASE COULD
NOT HAVE BEEN WITHIN THE CONTEMPLATION OF THE ACT, SINCE ITS
APPLICATION WILL HAVE BUT LITTLE EFFECT IN REMEDYING WHATEVER SECRECY
ATTENDS THEM.  IT IS TRUE THAT NOTICE TO THE DEBTORS SUFFICIENT TO
SATISFY THE REQUIREMENTS OF APPLICABLE STATE LAW MIGHT NEVER HAVE BEEN
COMMUNICATED TO THE CREDITORS, AND THAT MANY STATES DO NOT REQUIRE
NOTICE TO THE DEBTOR TO FORECLOSE POSSIBLE SUPERIOR RIGHTS OF
SUBSEQUENT ASSIGNEES.  FN18  SO ALSO IS IT TRUE THAT CONFLICTS AND
CONFUSION MAY RESULT WHERE THE TRANSACTION OR LOCATION OF THE PARTIES
IS OF SUCH A NATURE THAT DOUBT ARISES AS TO WHICH OF DIFFERENT STATE
LAWS IS APPLICABLE.  BUT THE FACT THAT THE REMEDY MAY FALL SHORT IN
THESE RESPECTS DOES NOT JUSTIFY DENYING IT ALL EFFECT. 

THAT THE ASSIGNMENTS IN THIS CASE WERE MADE WITH THE KNOWLEDGE AND
ACQUIESCENCE OF MANY CREDITORS DOES NOT CURE THE FAILURE TO MEET THE
REQUIREMENTS OF NOTICE LAID DOWN BY THE APPLICABLE STATE LAW.  NEITHER
THE WORDS NOR THE POLICY OF SEC. 60(A) AFFORD ANY WARRANT FOR CREATING
EXCEPTIONS TO FIT ISOLATED HARD CASES. 

THE JUDGMENT BELOW IS AFFIRMED. 

FN1  52 STAT. 840, 869-870; 11 U.S.C. SEC. 96(A). 

FN2  129 F.2D 894. 

FN3  ADAMS V. CITY BANK & TRUST CO., 115 F.2D 453. 

FN4  317 U.S. 617. 

FN5  52 STAT. 840, 842, 11 U.S.C. SEC. 1(30). 

FN6  PHILLIPS'S ESTATE (NO. 3), 205 PA. 515, 55 A. 213; CF.
PHILLIPS'S ESTATE (NO. 4), 205 PA. 525, 55 A. 216.  PENNSYLVANIA HAS
SINCE PROVIDED BY STATUTE THAT NOTICE OF THE ASSIGNMENT ON THE
ASSIGNOR'S BOOKS WILL PROTECT THE ASSIGNEE.  PA. LAWS, 1941, NO. 255,
P. 606(JULY 31, 1941), 69 PURD.  STAT.  ANN. SEC. 561. 

FN7  52 STAT. 840, 870, 11 U.S.C. SEC. 96(B). 

FN8  QUESTIONS OF THIS SORT ARISING IN BANKRUPTCY CASES WERE SOLVED
BY REFERENCE TO STATE LAW EVEN BEFORE THE DECISION OF ERIE R. CO. V.
TOMPKINS, 304 U.S. 64.  HOLT V. CRUCIBLE STEEL CO., 224 U.S. 262;
BENEDICT V. RATNER, 268 U.S. 353.  THE DECISION IN SALEM TRUST CO. V.
MANUFACTURERS' FINANCE CO., 264 U.S. 182, THAT, AS A MATTER OF "GENERAL
LAW," ABSENCE OF NOTICE TO THE DEBTOR OF THE ASSIGNMENT OF HIS ACCOUNT
DID NOT OPEN THE DOOR TO A SUBSEQUENT ASSIGNEE TO OBTAIN SUPERIOR
RIGHTS, WAS NOT RENDERED IN A BANKRUPTCY CASE, AND IS IN ANY EVENT
INAPPLICABLE SINCE THE DECISION OF THE TOMPKINS CASE. 

FN9  WHETHER THE PETITIONERS HAVE ANY RIGHTS UNDER THE AGREEMENT OF
SOME OF THE CREDITORS TO SUBORDINATE THEIR CLAIMS TO THOSE WHICH MIGHT
BE INCURRED FOR NEW WORKING CAPITAL IS A QUESTION WHICH HAS NEITHER
BEEN RAISED BY THE PARTIES NOR CONSIDERED BY THE COURT. 

FN10  PETITIONERS CITE AND RELY UPON SAULNIER AND JACOBY, ACCOUNTS
RECEIVABLE FINANCING (NATIONAL BUREAU OF ECONOMIC RESEARCH, 1943), FOR
AN ESTIMATE THAT IN 1941 COMMERCIAL FINANCE COMPANIES ADVANCED
$536,000,000 ON THIS BASIS; AND COMMERCIAL BANKS, $952,000,000.  OF THE
BORROWERS, IT WAS ESTIMATED THAT 63% HAD TOTAL (NOT NET) ASSETS OF LESS
THAN $200,000; AND 31%, LESS THAN $50,000.  THEIR BORROWING WAS
ESTIMATED, HOWEVER, TO AMOUNT TO LESS THAN 19% OF THE TOTAL.  ID. AT
17, 32, 64. 

"FACTORING," A SYSTEM INVOLVING NOTICE TO THE TRADE DEBTORS, AND
CONFINED PRINCIPALLY TO THE TEXTILE INDUSTRY, AMOUNTED IN 1941 TO
$1,150,000,000.  ID. AT 3, 17, 58 ET SEQ. 

FN11  SEE STATEMENT OF PROFESSOR MCLAUGHLIN, HEARINGS, REVISION OF
THE BANKRUPTCY ACT, HOUSE JUDICIARY COMMITTEE, 75TH CONG., 1ST SESS.,
PP. 122-125.  HE STATED THOMPSON V. FAIRBANKS, 196 U.S. 516, AS
APPLYING A RULE OF STATE LAW THAT A MORTGAGEE BY TAKING POSSESSION OF
THE MORTGAGED PROPERTY AT A TIME SUBSEQUENT TO THE EXECUTION OF THE
MORTGAGE THEREBY VALIDATED IT AS OF THE TIME OF EXECUTION.  HE SAID
THAT SEC. 60(A) WOULD PREVENT SUCH VALIDATION BY RELATION BACK. 
SIMILAR DISAPPROVING REFERENCE WAS MADE TO BAILEY V. BAKER ICE MACHINE
CO., 239 U.S. 268; CAREY V. DONOHUE, 240 U.S. 430; AND MARTIN V.
COMMERCIAL NATIONAL BANK, 245 U.S. 513; WITH THE EXPLANATION THAT "YOU
ARE GOING TO HAVE TAKEN AWAY SOME ADVANTAGES THAT SOME PEOPLE HAVE
ENJOYED, AND CERTAIN PRACTICES ARE GOING TO BE ALTERED TO SOME EXTENT. 
BUT YOU HAVE THAT EVERY TIME YOU PASS ANY KIND OF A COMMERCIAL LAW." 

FN12  SEE CASES CITED IN THE NOTE ABOVE; HIRSCHFELD V. NOGLE, 5
F.SUPP.  234; 3 COLLIER ON BANKRUPTCY (14TH ED.)  SECS.  60.05, 60.37. 
THE HISTORY AND MEANING OF THE PRESENT SEC. 60(A) ARE DISCUSSED IN 3
COLLIER, OP. CIT. SUPRA, SEC. 60.48; 2 GLENN, FRAUDULENT CONVEYANCES
AND PREFERENCES (1940) SEC. 534; HANNA, SOME UNSOLVED PROBLEMS UNDER
MCLAUGHLIN, ASPECTS OF THE CHANDLER BILL TO AMEND THE BANKRUPTCY ACT, 4
UNIVERSITY OF CHICAGO LAW REVIEW 369; NEUHOFF, ASSIGNMENT OF ACCOUNTS
RECEIVABLE AS AFFECTED BY THE CHANDLER ACT, 34 ILLINOIS LAW REVIEW 538;
MULDER, AMBIGUITIES IN THE CHANDLER ACT, 89 UNIVERSITY OF PENNSYLVANIA
LAW REVIEW 10; HAMILTON, THE EFFECT OF SECTION SIXTY OF THE BANKRUPTCY
ACT UPON ASSIGNMENTS OF ACCOUNTS RECEIVABLE, 26 VIRGINIA LAW REVIEW
168.    FN13  H.R. REP. NO. 1409, 75TH CONG., 1ST SESS., P. 30. 

FN14  SAULNIER AND JACOBY, OP. CIT. SUPRA, NOTE 10, PP. 6, 21 ET
SEQ., 61 ET SEQ. 

FN15  EFFECTIVE RATES ARE ESTIMATED TO RANGE FROM APPROXIMATELY 9%
PER ANNUM ON MONEY IN USE FOR THE BEST BORROWERS TO 20% PER ANNUM FOR
THOSE WHOSE ACCOUNTS PRESENT THE FINANCING COMPANY WITH THE HEAVIEST
OPERATING COSTS AND WHOSE RECEIVABLES ARE OF A QUALITY TO COMMAND ONLY
A RELATIVELY LOW PERCENTAGE ADVANCE.  ID. AT 86, 131 ET SEQ. 

FN16  ID. AT 22, 99.    FN17  "ANOTHER REASON FOR THE USE OF THE NON
NOTIFICATION PROCEDURE, ALTHOUGH LESS IMPORTANT THAN OTHER MOTIVES AND
LESS RELEVANT AT PRESENT THAN FORMERLY, SEEMS TO HAVE BEEN THE DESIRE
ON THE PART OF THE CONCERN BEING FINANCED TO KEEP THE FACT OF ITS USE
OF THIS SOURCE OF FUNDS FROM BECOMING KNOWN TO ITS CREDITORS. 
PRESUMABLY THESE CREDITORS WOULD BE LESS LIKELY TO GRANT THE CONCERN
FURTHER CREDIT ON THE GROUND THAT RESORT TO ACCOUNTS RECEIVABLE
FINANCING REFLECTED AN UNSATISFACTORY FINANCIAL POSITION AND IMPAIRED
THEIR OWN SECURITY.  IT SEEMS LIKELY THAT THIS ATTITUDE TOWARD NON
NOTIFICATION FINANCING MAY BE TRACED TO A MIXTURE OF SIMPLE PREJUDICE
AND GENUINE EXPERIENCE WITH CASES WHERE CREDITORS' MEETINGS DISCLOSED
FOR THE FIRST TIME THAT THE BANKRUPT HAD SECRETLY ASSIGNED HIS MOST
LIQUID ASSETS AND MADE UNPRODUCTIVE USE OF THE FUNDS SO ACQUIRED. 
GENUINE EXPERIENCE MUST HAVE BEEN THE MORE IMPORTANT BASIS OF THE TWO
FOR IT IS UNLIKELY THAT AN ATTITUDE AND PREJUDICE SO DEEPLY EMBEDDED
COULD BE FOUNDED ENTIRELY ON MISINFORMATION AND IRRATIONAL JUDGMENT." 
ID. AT 22. 

FN18  SEE 2 WILLISTON, CONTRACTS (REV. ED.)  SEC.  435, AND HAMILTON,
LOC.  CIT.  SUPRA, NOTE 12. 

MR. JUSTICE RUTLEDGE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE JUDGMENT SHOULD BE
REVERSED FOR REASONS STATED IN THE DISSENTING OPINION BELOW, 129 F.2D
897, AND IN ADAMS V. CITY BANK & TRUST CO., 115 F.2D 453; GIRAND V.
KIMBELL MILLING CO., 116 F.2D 999, IN RE TALBOT CANNING CORP., 35
F.SUPP.  680; ASSOCIATED SEED GROWERS V. GEIB, 125 F.2D 683, AND IN RE
E.H. WEBB GROCERY CO., 32 F.SUPP.  3. 
..END :






SECURITY ADM'R V. QUAKER OATS CO., 318 U.S. 218 


NO. 424.  ARGUED FEBRUARY 4, 5, 1943.  - DECIDED MARCH 1, 1943.  - 129
F.2D 76, REVERSED. 


THE FEDERAL SECURITY ADMINISTRATOR, ACTING UNDER SECS. 401 AND 701(E)
OF THE FEDERAL FOOD, DRUG AND COSMETIC ACT, PROMULGATED REGULATIONS
ESTABLISHING "STANDARDS OF IDENTITY" FOR VARIOUS MILLED WHEAT PRODUCTS,
EXCLUDING VITAMIN D FROM THE DEFINED STANDARD OF "FARINA" AND
PERMITTING IT ONLY IN "ENRICHED FARINA," WHICH WAS REQUIRED TO CONTAIN
VITAMIN B1, RIBOFLAVIN, NICOTINIC ACID AND IRON.  THE VALIDITY OF THE
REGULATIONS WAS CHALLENGED AS APPLIED TO THE RESPONDENT, WHO FOR TEN
YEARS HAD MANUFACTURED AND MARKETED, UNDER AN ACCURATE AND INFORMATIVE
LABEL, A FOOD PRODUCT CONSISTING OF FARINA, AS DEFINED BY THE
ADMINISTRATOR'S REGULATIONS, BUT WITH VITAMIN D ADDED.  UNDER THE ACT
AS SUPPLEMENTED BY THE REGULATIONS, RESPONDENT'S PRODUCT COULD NOT BE
MARKETED AS "FARINA," SINCE, BY REASON OF THE PRESENCE OF VITAMIN D AS
AN INGREDIENT, IT WOULD NOT CONFORM TO THE STANDARD OF IDENTITY
PRESCRIBED FOR "FARINA"; NOR COULD IT BE MARKETED AS "ENRICHED FARINA"
UNLESS THE PRESCRIBED MINIMUM QUANTITIES OF VITAMIN B1, RIBOFLAVIN,
NICOTINIC ACID AND IRON WERE ADDED.  HELD, THAT THE ADMINISTRATOR DID
NOT DEPART FROM STATUTORY REQUIREMENTS IN CHOOSING THE STANDARDS OF
IDENTITY FOR THE PURPOSE OF PROMOTING "FAIR DEALING IN THE INTEREST OF
CONSUMERS"; THAT THE STANDARDS WHICH HE SELECTED ARE ADAPTED TO THAT
END; AND THAT THEY ARE ADEQUATELY SUPPORTED BY FINDINGS AND EVIDENCE. 
PP. 220, 235. 

1.  UPON REVIEW OF AN ORDER OF THE FEDERAL SECURITY ADMINISTRATOR
ISSUING REGULATIONS UNDER SEC. 401 OF THE FEDERAL FOOD, DRUG AND
COSMETIC ACT, THE FINDINGS OF THE ADMINISTRATOR AS TO THE FACTS ARE
CONCLUSIVE IF SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 227. 

(A)  IT IS APPROPRIATE THAT A REVIEWING COURT ACCORD PROPER SCOPE TO
THE DISCRETION AND INFORMED JUDGMENT OF AN ADMINISTRATIVE AGENCY WHERE
THE REVIEW IS OF REGULATIONS OF GENERAL APPLICATION ADOPTED BY THE
ADMINISTRATIVE AGENCY UNDER ITS RULE-MAKING POWER IN CARRYING OUT THE
POLICY OF A STATUTE WITH WHOSE ENFORCEMENT IT IS CHARGED.  P. 227. 

(B)  THE JUDGMENT EXERCISED BY THE ADMINISTRATOR UNDER SEC. 401, IF
BASED ON SUBSTANTIAL EVIDENCE OF RECORD, AND IF WITHIN STATUTORY AND
CONSTITUTIONAL LIMITATIONS, IS CONTROLLING EVEN THOUGH THE REVIEWING
COURT MIGHT ON THE SAME RECORD HAVE ARRIVED AT A DIFFERENT CONCLUSION. 
P. 228. 

2.  TAKING INTO ACCOUNT THE EVIDENCE OF PUBLIC DEMAND FOR
VITAMINENRICHED FOODS, THEIR INCREASING SALE, THEIR VARIABLE VITAMIN
COMPOSITION AND DIETARY VALUE, AND THE GENERAL LACK OF CONSUMER
KNOWLEDGE OF SUCH VALUES, THERE WAS IN THIS CASE SUFFICIENT EVIDENCE,
OF RATIONAL PROBATIVE FORCE, TO SUPPORT THE ADMINISTRATOR'S JUDGMENT
THAT, IN THE ABSENCE OF APPROPRIATE STANDARDS OF IDENTITY, CONSUMER
CONFUSION WOULD ENSUE; AND TO SUPPORT THE ADMINISTRATOR'S CONCLUSION
THAT THE STANDARDS OF IDENTITY ADOPTED WILL PROMOTE HONESTY AND FAIR
DEALING IN THE INTEREST OF CONSUMERS.  P. 228. 

3.  THE TEXT AND THE LEGISLATIVE HISTORY OF THE ACT SHOW THAT ITS
PURPOSE WAS NOT CONFINED TO REQUIRING INFORMATIVE LABELING, BUT WAS TO
AUTHORIZE THE ADMINISTRATOR TO PROMULGATE DEFINITIONS AND STANDARDS OF
IDENTITY "UNDER WHICH THE INTEGRITY OF FOOD PRODUCTS CAN BE EFFECTIVELY
MAINTAINED" AND TO REQUIRE INFORMATIVE LABELING ONLY WHERE NO SUCH
STANDARD HAD BEEN PROMULGATED, WHERE THE FOOD DID NOT PURPORT TO COMPLY
WITH A STANDARD, OR WHERE THE REGULATIONS PERMITTED OPTIONAL
INGREDIENTS AND REQUIRED THEIR MENTION ON THE LABEL.  P. 230. 

4.  THE COURT CANNOT SAY THAT SUCH A STANDARD OF IDENTITY, DESIGNED
TO ELIMINATE A SOURCE OF CONFUSION TO PURCHASERS - WHICH OTHERWISE
WOULD BE LIKELY TO FACILITATE UNFAIR DEALING AND MAKE PROTECTION OF THE
CONSUMER DIFFICULT - WILL NOT "PROMOTE HONESTY AND FAIR DEALING" WITHIN
THE MEANING OF THE ACT.  P. 231. 

5.  THE ACT DOES NOT PRECLUDE A REGULATION WHICH WOULD EXCLUDE A
WHOLESOME AND BENEFICIAL INGREDIENT FROM THE DEFINITION AND STANDARD OF
IDENTITY OF A FOOD.  P. 232. 

6.  IT WAS NOT UNREASONABLE TO PROHIBIT THE ADDITION TO "FARINA" OF
VITAMIN D AS AN OPTIONAL INGREDIENT, WHILE PERMITTING ITS ADDITION AS
AN OPTIONAL INGREDIENT TO "ENRICHED FARINA."  P. 234. 

7.  ON THE RECORD IN THIS CASE, IT DOES NOT APPEAR THAT THE INCREASED
COST OF ADDING THE MINUTE QUANTITIES OF THE FOUR INGREDIENTS REQUIRED
FOR "ENRICHED FARINA" IS SUFFICIENT TO HAVE ANY SUBSTANTIAL BEARING ON
THE REASONABLENESS OF THE REGULATIONS.  P. 235. 

FEDERAL SECURITY ADMINISTRATOR V. QUAKER OATS CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 317 U.S. 616, TO REVIEW A JUDGMENT SETTING ASIDE AN ORDER
OF THE FEDERAL SECURITY ADMINISTRATOR UNDER THE FEDERAL FOOD, DRUG AND
COSMETIC ACT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL SECURITY ADMINISTRATOR, ACTING UNDER SECS. 401 AND
701(E), OF THE FEDERAL FOOD, DRUG AND COSMETIC ACT, 52 STAT. 1040,
1046, 1055(21 U.S.C. SECS. 341, 371), PROMULGATED REGULATIONS
ESTABLISHING "STANDARDS OF IDENTITY" FOR VARIOUS MILLED WHEAT PRODUCTS,
EXCLUDING VITAMIN D FROM THE DEFINED STANDARD OF "FARINA" AND
PERMITTING IT ONLY IN "ENRICHED FARINA," WHICH WAS REQUIRED TO CONTAIN
VITAMIN B1, RIBOFLAVIN, NICOTINIC ACID AND IRON.  THE QUESTION IS
WHETHER THE REGULATIONS ARE VALID AS APPLIED TO RESPONDENT.  THE ANSWER
TURNS UPON (A) WHETHER THERE IS SUBSTANTIAL EVIDENCE IN SUPPORT OF THE
ADMINISTRATOR'S FINDING THAT INDISCRIMINATE ENRICHMENT OF FARINA WITH
VITAMIN AND MINERAL CONTENTS WOULD TEND TO CONFUSE AND MISLEAD
CONSUMERS; (B) IF SO, WHETHER, UPON SUCH A FINDING, THE ADMINISTRATOR
HAS STATUTORY AUTHORITY TO ADOPT A STANDARD OF IDENTITY, WHICH EXCLUDES
A DISCLOSED NON-DELETERIOUS INGREDIENT, IN ORDER TO PROMOTE HONESTY AND
FAIR DEALING IN THE INTEREST OF CONSUMERS; AND (C) WHETHER THE
ADMINISTRATOR'S TREATMENT, BY THE CHALLENGED REGULATIONS, OF THE USE OF
VITAMIN D AS AN INGREDIENT OF A PRODUCT SOLD AS "FARINA" IS WITHIN HIS
STATUTORY AUTHORITY TO PRESCRIBE "A REASONABLE DEFINITION AND STANDARD
OF IDENTITY." 

ADMINISTRATOR SUCH ACTION WILL PROMOTE HONESTY AND FAIR DEALING IN THE
INTEREST OF CONSUMERS, HE SHALL PROMULGATE REGULATIONS FIXING AND
ESTABLISHING FOR ANY FOOD, UNDER ITS COMMON OR USUAL NAME SO FAR AS
PRACTICABLE, A REASONABLE DEFINITION AND STANDARD OF IDENTITY  ...  IN
PRESCRIBING A DEFINITION AND STANDARD OF IDENTITY FOR ANY FOOD OR CLASS
OF FOOD IN WHICH OPTIONAL INGREDIENTS ARE PERMITTED, THE ADMINISTRATOR
SHALL, FOR THE PURPOSE OF PROMOTING HONESTY AND FAIR DEALING IN THE
INTEREST OF CONSUMERS, DESIGNATE THE OPTIONAL INGREDIENTS WHICH SHALL
BE NAMED ON THE LABEL."  BY SEC. 701(E) THE ADMINISTRATOR, ON HIS OWN
INITIATIVE OR UPON APPLICATION OF ANY INTERESTED INDUSTRY OR A
SUBSTANTIAL PART OF IT, IS REQUIRED TO "HOLD A PUBLIC HEARING UPON A
PROPOSAL TO ISSUE, AMEND, OR REPEAL ANY REGULATION CONTEMPLATED BY"
SEC. 401.  AT THE HEARING "ANY INTERESTED PERSON MAY BE HEARD."  THE
ADMINISTRATOR IS REQUIRED TO PROMULGATE BY ORDER ANY REGULATION HE MAY
ISSUE TO "BASE HIS ORDER ONLY ON SUBSTANTIAL EVIDENCE OF RECORD AT THE
HEARING," AND TO "SET FORTH AS PART OF HIS ORDER DETAILED FINDINGS OF
FACT ON WHICH THE ORDER IS BASED."  FN1 

ANY FOOD WHICH "PURPORTS TO BE OR IS REPRESENTED AS A FOOD FOR WHICH
A DEFINITION AND STANDARD OF IDENTITY HAS BEEN PRESCRIBED" PURSUANT TO
SEC. 401 IS DECLARED BY SEC. 403(G) TO BE MISBRANDED "UNLESS (1) IT
CONFORMS TO SUCH DEFINITION AND STANDARD, AND (2) ITS LABEL BEARS THE
NAME OF THE FOOD SPECIFIED IN THE DEFINITION AND STANDARD, AND, INSOFAR
AS MAY BE REQUIRED BY SUCH REGULATIONS, THE COMMON NAMES OF OPTIONAL
INGREDIENTS  ...  PRESENT IN SUCH FOOD."  THE SHIPMENT IN INTERSTATE
COMMERCE OF "MISBRANDED" FOOD IS MADE A PENAL OFFENSE BY SECS. 301 AND
303.  "IN A CASE OF ACTUAL CONTROVERSY AS TO THE VALIDITY" OF AN ORDER
ISSUING REGULATIONS UNDER SEC. 401 ANY PERSON "ADVERSELY AFFECTED" BY
IT MAY SECURE ITS REVIEW ON APPEAL TO THE CIRCUIT COURT OF APPEALS FOR
THE CIRCUIT OF HIS RESIDENCE OR PRINCIPAL PLACE OF BUSINESS.  ON SUCH
REVIEW THE FINDINGS OF THE ADMINISTRATOR "AS TO THE FACTS, IF SUPPORTED
BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE."  SEC. 701(F)(1),
(F)(3). 

AFTER DUE NOTICE  FN2  AND A HEARING IN WHICH RESPONDENT
PARTICIPATED, THE ADMINISTRATOR BY ORDER PROMULGATED REGULATIONS
ESTABLISHING DEFINITIONS AND STANDARDS OF IDENTITY FOR SIXTEEN MILLED
WHEAT PRODUCTS, INCLUDING "FARINA" AND "ENRICHED FARINA."  REGULATION
15.130 DEFINED "FARINA" AS A FOOD PREPARED BY GRINDING AND BOLTING
CLEANED WHEAT, OTHER THAN CERTAIN SPECIFIED KINDS, TO A PRESCRIBED
FINENESS WITH THE BRAN COAT AND GERM OF THE WHEAT BERRY REMOVED TO A
PRESCRIBED EXTENT.  THE REGULATION MADE NO PROVISION FOR THE ADDITION
OF ANY INGREDIENTS TO "FARINA."  REGULATION 15.140 DEFINED "ENRICHED
FARINA" AS CONFORMING TO THE REGULATION DEFINING "FARINA," BUT WITH
ADDED PRESCRIBED MINIMUM QUANTITIES OF VITAMIN B1, RIBOFLAVIN,  FN3
NICOTINIC ACID (OR NICOTINIC ACID AMIDE) AND IRON.  THE REGULATION ALSO
PROVIDED THAT MINIMUM QUANTITIES OF VITAMIN D, CALCIUM, WHEAT GERM OR
DISODIUM PHOSPHATE MIGHT BE ADDED AS OPTIONAL INGREDIENTS OF "ENRICHED
FARINA," AND REQUIRED THAT INGREDIENTS SO ADDED BE SPECIFIED ON THE
LABEL.  IN SUPPORT OF THE REGULATIONS THE ADMINISTRATOR FOUND THAT
"UNLESS A STANDARD" FOR MILLED WHEAT PRODUCTS "IS PROMULGATED WHICH
LIMITS THE KINDS AND AMOUNTS OF ENRICHMENT, THE MANUFACTURERS'
SELECTION OF THE VARIOUS NUTRITIVE ELEMENTS AND COMBINATIONS OF
ELEMENTS ON THE BASIS OF ECONOMIC AND MERCHANDISING CONSIDERATIONS IS
LIKELY TO LEAD TO A GREAT INCREASE IN THE DIVERSITY, BOTH QUALITATIVE
AND QUANTITATIVE, IN ENRICHED FLOURS OFFERED TO THE PUBLIC.  SUCH
DIVERSITY WOULD TEND TO CONFUSE AND MISLEAD CONSUMERS AS TO THE
RELATIVE VALUE OF AND NEED FOR THE SEVERAL NUTRITIONAL ELEMENTS, AND
WOULD IMPEDE RATHER THAN PROMOTE HONESTY AND FAIR DEALING IN THE
INTEREST OF CONSUMERS." 

ON RESPONDENT'S APPEAL FROM THIS ORDER THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT SET IT ASIDE, 129 F.2D 76, HOLDING THAT THE REGULATIONS
DID NOT CONFORM TO THE STATUTORY STANDARDS OF REASONABLENESS, THAT THE
ADMINISTRATOR'S FINDINGS AS TO PROBABLE CONSUMER CONFUSION IN THE
ABSENCE OF THE PRESCRIBED STANDARDS OF IDENTITY WERE WITHOUT SUPPORT IN
THE EVIDENCE AND WERE "ENTIRELY SPECULATIVE AND CONJECTURAL," AND THAT
IN ANY CASE SUCH A FINDING WOULD NOT JUSTIFY THE CONCLUSION THAT THE
REGULATIONS WOULD "PROMOTE HONESTY AND FAIR DEALING IN THE INTEREST OF
CONSUMERS."  WE GRANTED CERTIORARI, 317 U.S. 616, BECAUSE OF THE
IMPORTANCE OF THE QUESTIONS INVOLVED TO THE ADMINISTRATION OF THE FOOD,
DRUG AND COSMETIC ACT. 

RESPONDENT, THE QUAKER OATS COMPANY, HAS FOR THE PAST TEN YEARS
MANUFACTURED AND MARKETED A WHEAT PRODUCT COMMONLY USED AS A CEREAL
FOOD, CONSISTING OF FARINA AS DEFINED BY THE ADMINISTRATOR'S
REGULATION, BUT WITH VITAMIN D ADDED.  RESPONDENT DISTRIBUTES THIS
PRODUCT IN PACKAGES LABELED "QUAKER FARINA WHEAT CEREAL ENRICHED WITH
VITAMIN D," OR "QUAKER FARINA ENRICHED BY THE SUNSHINE VITAMIN."  THE
PACKAGES ALSO BEAR THE LABEL "CONTENTS 400 U.S.P. UNITS OF VITAMIN D
PER OUNCE, SUPPLIED BY APPROXIMATELY THE ADDITION OF 1/5 OF 1 PERCENT
IRRADIATED DRY YEAST." 

RESPONDENT ASSERTS, AND THE GOVERNMENT AGREES, THAT THE ACT AS
SUPPLEMENTED BY THE ADMINISTRATOR'S STANDARDS WILL PREVENT THE
MARKETING OF ITS PRODUCT AS "FARINA" SINCE, BY REASON OF THE PRESENCE
OF VITAMIN D AS AN INGREDIENT, IT DOES NOT CONFORM TO THE STANDARD OF
IDENTITY PRESCRIBED FOR "FARINA," AND THAT RESPONDENT CANNOT MARKET ITS
PRODUCT AS "ENRICHED FARINA" UNLESS IT ADDS THE PRESCRIBED MINIMUM
QUANTITIES OF VITAMIN B1, RIBOFLAVIN, NICOTINIC ACID AND IRON. 
RESPONDENT CHALLENGES THE VALIDITY OF THE REGULATIONS ON THE GROUNDS
SUSTAINED BELOW AND OTHERS SO CLOSELY RELATED TO THEM AS NOT TO REQUIRE
SEPARATE CONSIDERATION. 

AS APPEARS FROM THE EVIDENCE AND THE FINDINGS, THE PRODUCTS OF MILLED
WHEAT ARE AMONG THE PRINCIPAL ITEMS OF THE AMERICAN DIET, PARTICULARLY
AMONG LOW INCOME GROUPS.  FN4  FARINA, WHICH IS A HIGHLY REFINED WHEAT
PRODUCT RESEMBLING FLOUR BUT WITH LARGER PARTICLES, IS USED IN
MACARONI, AS A BREAKFAST FOOD, AND EXTENSIVELY AS A CEREAL FOOD FOR
CHILDREN.  IT IS IN MANY CASES THE ONLY CEREAL CONSUMED BY THEM DURING
A PERIOD OF THEIR GROWTH.  BOTH FARINA AND FLOUR ARE MANUFACTURED BY
GRINDING THE WHOLE WHEAT AND DISCARDING ITS BRAN COAT AND GERM.  THIS
PROCESS REMOVES FROM THE MILLED PRODUCT THAT PART OF THE WHEAT WHICH IS
RICHEST IN VITAMINS AND MINERALS, PARTICULARLY VITAMIN B1, RIBOFLAVIN,
NICOTINIC ACID AND IRON, VALUABLE FOOD ELEMENTS WHICH ARE OFTEN LACKING
IN THE DIET OF LOW INCOME GROUPS.  IN THEIR DIET, ESPECIALLY IN THE
CASE OF CHILDREN, THERE IS ALSO FREQUENTLY A DEFICIENCY OF CALCIUM AND
VITAMIN D, WHICH ARE ELEMENTS NOT PRESENT IN WHEAT IN SIGNIFICANT
QUANTITIES.  VITAMIN D, WHOSE CHIEF DIETARY VALUE IS AS AN AID TO THE
METABOLISM OF CALCIUM, IS DEVELOPED IN THE BODY BY EXPOSURE TO
SUNLIGHT.  IT IS DERIVED PRINCIPALLY FROM COD LIVER AND OTHER FISH
OILS.  MILK IS THE MOST SATISFACTORY SOURCE OF CALCIUM IN DIGESTIBLE
FORM, AND MILK ENRICHED BY VITAMIN D IS NOW ON THE MARKET. 

IN RECENT YEARS MILLERS OF WHEAT HAVE PLACED ON THE MARKET FLOURS AND
FARINAS WHICH HAVE BEEN ENRICHED BY THE ADDITION OF VARIOUS VITAMINS
AND MINERALS.  THE COMPOSITION OF THESE ENRICHED PRODUCTS VARIES
WIDELY.  FN5  THERE WAS TESTIMONY OF WEIGHT BEFORE THE ADMINISTRATOR,
PRINCIPALLY BY EXPERT NUTRITIONISTS, THAT SUCH PRODUCTS, BECAUSE OF THE
VARIETY AND COMBINATION OF ADDED INGREDIENTS, ARE WIDELY VARIABLE IN
NUTRITIONAL VALUE; AND THAT CONSUMERS GENERALLY LACK KNOWLEDGE OF THE
RELATIVE VALUE OF SUCH INGREDIENTS AND COMBINATIONS OF THEM. 

THESE WITNESSES ALSO TESTIFIED, AS DID REPRESENTATIVES OF CONSUMER
ORGANIZATIONS WHICH HAD MADE SPECIAL STUDIES OF THE PROBLEMS OF FOOD
STANDARDIZATION, THAT THE NUMBER, VARIETY AND VARYING COMBINATIONS OF
THE ADDED INGREDIENTS TEND TO CONFUSE THE LARGE NUMBER OF CONSUMERS WHO
DESIRE TO PURCHASE VITAMIN-ENRICHED WHEAT FOOD PRODUCTS BUT WHO LACK
THE KNOWLEDGE ESSENTIAL TO DISCRIMINATING PURCHASE OF THEM; THAT
BECAUSE OF THIS LACK OF KNOWLEDGE AND DISCRIMINATION THEY ARE SUBJECT
TO EXPLOITATION BY THE SALE OF FOODS DESCRIBED AS "ENRICHED," BUT OF
WHOSE INFERIOR OR UNSUITABLE QUALITY THEY ARE NOT INFORMED. 
ACCORDINGLY A LARGE NUMBER OF WITNESSES RECOMMENDED THE ADOPTION OF
DEFINITIONS AND STANDARDS FOR "ENRICHED" WHEAT PRODUCTS WHICH WOULD
ENSURE FAIRLY COMPLETE SATISFACTION OF DIETARY NEEDS, AND A SOMEWHAT
LESSER NUMBER RECOMMENDED THE DISALLOWANCE, AS OPTIONAL INGREDIENTS IN
THE STANDARDS FOR UNENRICHED WHEAT PRODUCTS, OF INDIVIDUAL VITAMINS AND
MINERALS WHOSE ADDITION WOULD SUGGEST TO CONSUMERS AN ADEQUACY FOR
DIETARY NEEDS NOT IN FACT SUPPLIED. 

THE COURT BELOW CHARACTERIZED THIS EVIDENCE AS SPECULATIVE AND
CONJECTURAL, AND HELD THAT BECAUSE THERE WAS NO EVIDENCE THAT
RESPONDENT'S PRODUCT HAD IN FACT CONFUSED OR MISLED ANYONE, THE
ADMINISTRATOR'S FINDING AS TO CONSUMER CONFUSION WAS WITHOUT
SUBSTANTIAL SUPPORT IN THE EVIDENCE.  IT THOUGHT THAT, IF ANYTHING,
CONSUMER CONFUSION WAS MORE LIKELY TO BE CREATED, AND THE INTEREST OF
CONSUMERS HARMED, BY THE SALE OF FARINAS CONFORMING TO THE STANDARD FOR
"ENRICHED FARINA," WHOSE LABELS WERE NOT REQUIRED TO DISCLOSE THEIR
INGREDIENTS, THAN BY THE SALE OF RESPONDENT'S PRODUCT UNDER AN ACCURATE
AND INFORMATIVE LABEL SUCH AS THAT RESPONDENT WAS USING. 

THE ACT DOES NOT CONTEMPLATE THAT COURTS SHOULD THUS SUBSTITUTE THEIR
OWN JUDGMENT FOR THAT OF THE ADMINISTRATOR.  AS PASSED BY THE HOUSE IT
APPEARS TO HAVE PROVIDED FOR A JUDICIAL REVIEW IN WHICH THE COURT COULD
TAKE ADDITIONAL EVIDENCE, WEIGH THE EVIDENCE, AND DIRECT THE
ADMINISTRATOR "TO TAKE SUCH FURTHER ACTION AS JUSTICE MAY REQUIRE." 
H.R. REP. NO. 2139, 75TH CONG., 3D SESS., PP. 11-12.  BUT BEFORE
ENACTMENT, THE CONFERENCE COMMITTEE SUBSTITUTED FOR THESE PROVISIONS
THOSE WHICH BECAME SEC. 701(F) OF THE ACT.  WHILE UNDER THAT SECTION
THE ADMINISTRATOR'S REGULATIONS MUST BE SUPPORTED BY FINDINGS BASED
UPON "SUBSTANTIAL EVIDENCE" ADDUCED AT THE HEARING, THE ADMINISTRATOR'S
FINDINGS AS TO THE FACTS IF BASED ON SUBSTANTIAL EVIDENCE ARE
CONCLUSIVE.  IN EXPLAINING THESE CHANGES THE CHAIRMAN OF THE HOUSE
CONFEREES STATED ON THE FLOOR OF THE HOUSE THAT "THERE IS NO PURPOSE
THAT THE COURT SHALL EXERCISE THE FUNCTIONS THAT BELONG TO THE
EXECUTIVE OR THE LEGISLATIVE BRANCHES."  83 CONG. REC., P. 9096.  SEE
ALSO H.R. REP. NO. 2716, 75TH CONG., 3D SESS., P. 25.  COMPARE FEDERAL
RADIO COMM'N V. GENERAL ELECTRIC CO., 281 U.S. 464. 

THE REVIEW PROVISIONS WERE PATTERNED AFTER THOSE BY WHICH CONGRESS
HAS PROVIDED FOR THE REVIEW OF "QUASIJUDICIAL" ORDERS OF THE FEDERAL
TRADE COMMISSION AND OTHER AGENCIES, WHICH WE HAVE MANY TIMES HAD
OCCASION TO CONSTRUE.  FN6 UNDER SUCH PROVISIONS WE HAVE REPEATEDLY
EMPHASIZED THE SCOPE THAT MUST BE ALLOWED TO THE DISCRETION AND
INFORMED JUDGMENT OF AN EXPERT ADMINISTRATIVE BODY.  FEDERAL TRADE
COMM'N V. EDUCATION SOCIETY, 302 U.S. 112, 117; GRAY V. POWELL, 314
U.S. 402, 412; LABOR BOARD V. LINK BELT CO., 311 U.S. 584, 597; SEE
FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S.
134, 141, 144.  THESE CONSIDERATIONS ARE ESPECIALLY APPROPRIATE WHERE
THE REVIEW IS OF REGULATIONS OF GENERAL APPLICATION ADOPTED BY AN
ADMINISTRATIVE AGENCY UNDER ITS RULE-MAKING POWER IN CARRYING OUT THE
POLICY OF A STATUTE WITH WHOSE ENFORCEMENT IT IS CHARGED.  COMPARE
HOUSTON V. ST. LOUIS INDEPENDENT PACKING CO., 249 U.S. 479, 487; OPP
COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126, 156.  SECTION 401 CALLS
FOR THE EXERCISE OF THE "JUDGMENT OF THE ADMINISTRATOR."  THAT
JUDGMENT, IF BASED ON SUBSTANTIAL EVIDENCE OF RECORD, AND IF WITHIN
STATUTORY AND CONSTITUTIONAL LIMITATIONS, IS CONTROLLING EVEN THOUGH
THE REVIEWING COURT MIGHT ON THE SAME RECORD HAVE ARRIVED AT A
DIFFERENT CONCLUSION.    NONE OF THE TESTIMONY WHICH WE HAVE DETAILED
CAN BE SAID TO BE SPECULATIVE OR CONJECTURAL UNLESS IT BE THE
CONCLUSION OF NUMEROUS WITNESSES, ADOPTED BY THE ADMINISTRATOR, THAT
THE LABELING AND MARKETING OF VITAMIN-ENRICHED FOODS, NOT CONFORMING TO
ANY STANDARDS OF IDENTITY, TEND TO CONFUSE AND MISLEAD CONSUMERS.  THE
EXERCISE OF THE ADMINISTRATIVE RULE-MAKING POWER NECESSARILY LOOKS TO
THE FUTURE.  THE STATUTE REQUIRES THE ADMINISTRATOR TO ADOPT STANDARDS
OF IDENTITY WHICH IN HIS JUDGMENT "WILL" PROMOTE HONESTY AND FAIR
DEALING IN THE INTEREST OF CONSUMERS.  ACTING WITHIN HIS STATUTORY
AUTHORITY HE IS REQUIRED TO ESTABLISH STANDARDS WHICH WILL GUARD
AGAINST THE PROBABLE FUTURE EFFECTS OF PRESENT TRENDS.  TAKING INTO
ACCOUNT THE EVIDENCE OF PUBLIC DEMAND FOR VITAMIN-ENRICHED FOODS, THEIR
INCREASING SALE, THEIR VARIABLE VITAMIN COMPOSITION AND DIETARY VALUE,
AND THE GENERAL LACK OF CONSUMER KNOWLEDGE OF SUCH VALUES, THERE WAS
SUFFICIENT EVIDENCE OF "RATIONAL PROBATIVE FORCE" (SEE CONSOLIDATED
EDISON CO. V. LABOR BOARD, 305 U.S. 197, 229, 230), TO SUPPORT THE
ADMINISTRATOR'S JUDGMENT THAT, IN THE ABSENCE OF APPROPRIATE STANDARDS
OF IDENTITY, CONSUMER CONFUSION WOULD ENSUE.  FEDERAL TRADE COMM'N V.
RALADAM CO., 283 U.S. 643, 651; FEDERAL TRADE COMM'N V. RALADAM CO.,
316 U.S. 149, 151, 152; PACIFIC STATES BOX CO. V. WHITE, 296 U.S. 176,
181.  COMPARE MCLEAN V. FLEMING, 96 U.S. 245, 251, 253-4, 255. 

RESPONDENT INSISTS, AS THE COURT BELOW HELD, THAT THE CONSUMER
CONFUSION FOUND BY THE ADMINISTRATOR AFFORDS NO BASIS FOR HIS
CONCLUSION THAT THE STANDARDS OF IDENTITY ADOPTED BY THE ADMINISTRATOR
WILL PROMOTE HONESTY AND FAIR DEALING.  BUT THIS IS TANTAMOUNT TO
SAYING, DESPITE THE ADMINISTRATOR'S FINDINGS TO THE CONTRARY, EITHER
THAT IN THE CIRCUMSTANCES OF THIS CASE THERE COULD BE NO SUCH CONSUMER
CONFUSION OR THAT THE CONFUSION COULD NOT BE DEEMED TO FACILITATE
UNFAIR DEALING CONTRARY TO THE INTEREST OF CONSUMERS.  FOR REASONS
ALREADY INDICATED WE THINK THAT THE EVIDENCE OF THE DESIRE OF CONSUMERS
TO PURCHASE VITAMIN-ENRICHED FOODS, THEIR GENERAL IGNORANCE OF THE
COMPOSITION AND VALUE OF THE VITAMIN CONTENT OF THOSE FOODS, AND THEIR
CONSEQUENT INABILITY TO GUARD AGAINST THE PURCHASE OF PRODUCTS OF
INFERIOR OR UNSUITABLE VITAMIN CONTENT, SUFFICIENTLY SUPPORTS THE
ADMINISTRATOR'S CONCLUSIONS. 

WE HAVE RECOGNIZED THAT PURCHASERS UNDER SUCH CONDITIONS ARE
PECULIARLY SUSCEPTIBLE TO DISHONEST AND UNFAIR MARKETING PRACTICES.  IN
UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 149, 150, WE
UPHELD THE CONSTITUTIONALITY OF A STATUTE PROHIBITING THE SALE OF
"FILLED MILK" - A CONDENSED MILK PRODUCT FROM WHICH THE VITAMIN CONTENT
HAD BEEN EXTRACTED - ALTHOUGH HONESTLY LABELED AND NOT IN ITSELF
DELETERIOUS.  DECISION WAS RESTED ON THE GROUND THAT CONGRESS COULD
REASONABLY CONCLUDE THAT THE USE OF THE PRODUCT AS A MILK SUBSTITUTE
DEPRIVES CONSUMERS OF VITAMINS REQUISITE FOR HEALTH AND "FACILITATES
FRAUD ON THE PUBLIC" BY "MAKING FRAUDULENT DISTRIBUTION EASY AND
PROTECTION OF THE CONSUMER DIFFICULT." 

BOTH THE TEXT AND LEGISLATIVE HISTORY OF THE PRESENT STATUTE PLAINLY
SHOW THAT ITS PURPOSE WAS NOT CONFINED TO A REQUIREMENT OF TRUTHFUL AND
INFORMATIVE LABELING.  FALSE AND MISLEADING LABELING HAD BEEN
PROHIBITED BY THE PURE FOOD AND DRUG ACT OF 1906.  BUT IT WAS FOUND
THAT SUCH A PROHIBITION WAS INADEQUATE TO PROTECT THE CONSUMER FROM
"ECONOMIC ADULTERATION," BY WHICH LESS EXPENSIVE INGREDIENTS WERE
SUBSTITUTED, OR THE PROPORTION OF MORE EXPENSIVE INGREDIENTS
DIMINISHED, SO AS TO MAKE THE PRODUCT, ALTHOUGH NOT IN ITSELF
DELETERIOUS, INFERIOR TO THAT WHICH THE CONSUMER EXPECTED TO RECEIVE
WHEN PURCHASING A PRODUCT WITH THE NAME UNDER WHICH IT WAS SOLD.  SEN.
REP. NO. 493, 73D CONG., 2D SESS., P. 10; SEN. REP. NO. 361, 74TH
CONG., 1ST SESS., P. 10.  THE REMEDY CHOSEN WAS NOT A REQUIREMENT OF
INFORMATIVE LABELING.  RATHER IT WAS THE PURPOSE TO AUTHORIZE THE
ADMINISTRATOR TO PROMULGATE DEFINITIONS AND STANDARDS OF IDENTITY
"UNDER WHICH THE INTEGRITY OF FOOD PRODUCTS CAN BE EFFECTIVELY
MAINTAINED" (H.R. REP. 2139, 75TH CONG., 3D SESS., P. 2; H.R. REP.
2755, 74TH CONG., 2D SESS., P. 4), AND TO REQUIRE INFORMATIVE LABELING
ONLY WHERE NO SUCH STANDARD HAD BEEN PROMULGATED, WHERE THE FOOD DID
NOT PURPORT TO COMPLY WITH A STANDARD, OR WHERE THE REGULATIONS
PERMITTED OPTIONAL INGREDIENTS AND REQUIRED THEIR MENTION ON THE
LABEL.  SECS. 403(G), 403(I); SEE SEN. REP. NO. 361, 74TH CONG., 1ST
SESS., P. 12; SEN. REP. NO. 493, 73D CONG., 2D SESS., PP. 11-12. 

THE PROVISIONS FOR STANDARDS OF IDENTITY THUS REFLECT A RECOGNITION
BY CONGRESS OF THE INABILITY OF CONSUMERS IN SOME CASES TO DETERMINE,
SOLELY ON THE BASIS OF INFORMATIVE LABELING, THE RELATIVE MERITS OF A
VARIETY OF PRODUCTS SUPERFICIALLY RESEMBLING EACH OTHER.  FN7  WE
CANNOT SAY THAT SUCH A STANDARD OF IDENTITY, DESIGNED TO ELIMINATE A
SOURCE OF CONFUSION TO PURCHASERS - WHICH OTHERWISE WOULD BE LIKELY TO
FACILITATE UNFAIR DEALING AND MAKE PROTECTION OF THE CONSUMER DIFFICULT
- WILL NOT "PROMOTE HONESTY AND FAIR DEALING" WITHIN THE MEANING OF THE
STATUTE. 

RESPONDENT'S FINAL AND MOST VIGOROUS ATTACK ON THE REGULATIONS IS
THAT THEY FAIL TO ESTABLISH REASONABLE DEFINITIONS AND STANDARDS OF
IDENTITY, AS SEC. 401 REQUIRES, IN THAT THEY PROHIBIT THE MARKETING,
UNDER THE NAME "FARINA," OF A WHOLESOME AND HONESTLY LABELED PRODUCT
CONSISTING OF FARINA WITH VITAMIN D ADDED, AND THAT THEY PREVENT THE
ADDITION OF VITAMIN D TO PRODUCTS MARKETED AS "ENRICHED FARINA" UNLESS
ACCOMPANIED BY THE OTHER PRESCRIBED VITAMIN INGREDIENTS WHICH DO NOT CO
ACT WITH OR HAVE ANY DIETARY RELATIONSHIP TO VITAMIN D. STATED IN
ANOTHER FORM, THE ARGUMENT IS THAT IT IS UNREASONABLE TO PROHIBIT THE
ADDITION TO FARINA OF VITAMIN D AS AN OPTIONAL INGREDIENT WHILE
PERMITTING ITS ADDITION AS AN OPTIONAL INGREDIENT TO ENRICHED FARINA,
TO THE DETRIMENT OF RESPONDENT'S BUSINESS. 

THE STANDARDS OF REASONABLENESS TO WHICH THE ADMINISTRATOR'S ACTION
MUST CONFORM ARE TO BE FOUND IN THE TERMS OF THE ACT CONSTRUED AND
APPLIED IN THE LIGHT OF ITS PURPOSE.  ITS DECLARED PURPOSE IS THE
ADMINISTRATIVE PROMULGATION OF STANDARDS OF BOTH IDENTITY AND QUALITY
IN THE INTEREST OF CONSUMERS.  THOSE STANDARDS ARE TO BE PRESCRIBED AND
APPLIED, SO FAR AS IS PRACTICABLE, TO FOOD UNDER ITS COMMON OR USUAL
NAME, AND THE REGULATIONS ADOPTED AFTER A HEARING MUST HAVE THE SUPPORT
OF SUBSTANTIAL EVIDENCE.  WE MUST REJECT AT THE OUTSET THE ARGUMENT
EARNESTLY PRESSED UPON US THAT THE STATUTE DOES NOT CONTEMPLATE A
REGULATION EXCLUDING A WHOLESOME AND BENEFICIAL INGREDIENT FROM THE
DEFINITION AND STANDARD OF IDENTITY OF A FOOD.  THE STATUTORY PURPOSE
TO FIX A DEFINITION OF IDENTITY OF AN ARTICLE OF FOOD SOLD UNDER ITS
COMMON OR USUAL NAME WOULD BE DEFEATED IF PRODUCERS WERE FREE TO ADD
INGREDIENTS, HOWEVER WHOLESOME, WHICH ARE NOT WITHIN THE DEFINITION. 
AS WE HAVE SEEN, THE LEGISLATIVE HISTORY OF THE STATUTE MANIFESTS THE
PURPOSE OF CONGRESS TO SUBSTITUTE, FOR INFORMATIVE LABELING, STANDARDS
OF IDENTITY OF A FOOD, SOLD UNDER A COMMON OR USUAL NAME, SO AS TO GIVE
TO CONSUMERS WHO PURCHASE IT UNDER THAT NAME ASSURANCE THAT THEY WILL
GET WHAT THEY MAY REASONABLY EXPECT TO RECEIVE.  IN MANY INSTANCES,
LIKE THE PRESENT, THAT PURPOSE COULD BE ACHIEVED ONLY IF THE DEFINITION
OF IDENTITY SPECIFIED THE NUMBER, NAMES AND PROPORTIONS OF INGREDIENTS,
HOWEVER WHOLESOME OTHER COMBINATIONS MIGHT BE.  THE STATUTE
ACCOMPLISHED THAT PURPOSE BY AUTHORIZING THE ADMINISTRATOR TO ADOPT A
DEFINITION OF IDENTITY BY PRESCRIBING SOME INGREDIENTS, INCLUDING SOME
WHICH ARE OPTIONAL, AND EXCLUDING OTHERS, AND BY REQUIRING THE
DESIGNATION ON THE LABEL OF THE OPTIONAL INGREDIENTS PERMITTED.  FN8 

SINCE THE DEFINITION OF IDENTITY OF A VITAMIN-TREATED FOOD, MARKETED
UNDER ITS COMMON OR USUAL NAME, INVOLVES THE INCLUSION OF SOME VITAMIN
INGREDIENTS AND THE EXCLUSION OF OTHERS, THE ADMINISTRATOR NECESSARILY
HAS A LARGE RANGE OF CHOICE IN DETERMINING WHAT MAY BE INCLUDED AND
WHAT EXCLUDED.  IT IS NOT NECESSARILY A VALID OBJECTION TO HIS CHOICE
THAT ANOTHER COULD REASONABLY HAVE BEEN MADE.  THE JUDICIAL IS NOT TO
BE SUBSTITUTED FOR THE LEGISLATIVE JUDGMENT.  IT IS ENOUGH THAT THE
ADMINISTRATOR HAS ACTED WITHIN THE STATUTORY BOUNDS OF HIS AUTHORITY,
AND THAT HIS CHOICE AMONG POSSIBLE ALTERNATIVE STANDARDS ADAPTED TO THE
STATUTORY END IS ONE WHICH A RATIONAL PERSON COULD HAVE MADE.  HOUSTON
V. ST. LOUIS INDEPENDENT PACKING CO., SUPRA, 487. 

THE EVIDENCE DISCLOSES THAT IT IS WELL KNOWN THAT THE MILLING PROCESS
FOR PRODUCING FLOURS AND FARINAS REMOVES FROM THE WHEAT A SUBSTANTIAL
PART OF ITS HEALTH-GIVING VITAMIN CONTENTS, WHICH ARE CONCEDEDLY
ESSENTIAL TO THE MAINTENANCE OF HEALTH, AND THAT MANY CONSUMERS DESIRE
TO PURCHASE WHEAT PRODUCTS WHICH HAVE BEEN ENRICHED BY THE RESTORATION
OF SOME OF THE ORIGINAL VITAMIN CONTENT OF THE WHEAT.  IN FIXING
DEFINITIONS AND STANDARDS OF IDENTITY IN CONFORMITY WITH THE STATUTORY
PURPOSE THE ADMINISTRATOR WAS THUS CONFRONTED WITH TWO RELATED
PROBLEMS.  ONE WAS THE CHOICE OF A STANDARD WHICH WOULD APPROPRIATELY
IDENTIFY UNENRICHED WHEAT PRODUCTS WHICH HAD LONG BEEN ON THE MARKET. 
THE OTHER WAS THE SELECTION OF A STANDARD FOR ENRICHED WHEAT PRODUCTS
WHICH WOULD BOTH ASSURE TO CONSUMERS OF VITAMIN-ENRICHED PRODUCTS SOME
OF THE BENEFITS TO HEALTH WHICH THEY SOUGHT, AND PROTECT THEM FROM
EXPLOITATION THROUGH THE MARKETING OF VITAMIN-ENRICHED FOODS OF WHOSE
DIETARY VALUE THEY WERE IGNORANT.  IN FINDING THE SOLUTION THE
ADMINISTRATOR COULD TAKE INTO ACCOUNT THE FACTS THAT WHOLE WHEAT IS A
NATURAL AND COMMON SOURCE OF THE VALUABLE DIETARY INGREDIENTS WHICH HE
PRESCRIBED FOR ENRICHED FARINA; THAT WHEAT IS NOT A SOURCE OF VITAMIN
D; THAT MILK, A COMMON ARTICLE OF DIET, IS A SATISFACTORY SOURCE OF AN
ASSIMILABLE FORM OF CALCIUM; THAT THE PRINCIPAL FUNCTION OF VITAMIN D
IS TO AID IN THE METABOLISM OF CALCIUM; AND THAT MILK ENRICHED WITH
VITAMIN D WAS ALREADY ON THE MARKET. 

WE CANNOT SAY THAT THE ADMINISTRATOR MADE AN UNREASONABLE CHOICE OF
STANDARDS WHEN HE ADOPTED ONE WHICH DEFINED THE FAMILIAR FARINA OF
COMMERCE WITHOUT PERMITTING ADDITION OF VITAMIN ENRICHMENT, AND AT THE
SAME TIME PRESCRIBED FOR "ENRICHED FARINA" THE RESTORATION OF THOSE
VITAMINS WHICH HAD BEEN REMOVED FROM THE WHOLE WHEAT BY MILLING, AND
ALLOWED THE OPTIONAL ADDITION OF VITAMIN D, COMMONLY FOUND IN MILK BUT
NOT PRESENT IN WHEAT.  CONSUMERS WHO BUY FARINA WILL HAVE NO REASON TO
BELIEVE THAT IT IS ENRICHED.  THOSE WHO BUY ENRICHED FARINA ARE ASSURED
OF RECEIVING A WHEAT PRODUCT CONTAINING THOSE VITAMINS NATURALLY
PRESENT IN WHEAT, AND, IF SO STATED ON THE LABEL, AN ADDITIONAL VITAMIN
D, NOT FOUND IN WHEAT. 

RESPONDENT SPEAKS OF THE HIGH COST OF VITAMIN B1($700 PER POUND), BUT
THERE WAS EVIDENCE THAT THE COST OF ADDING TO FLOUR THE MINUTE
QUANTITIES OF THE FOUR INGREDIENTS REQUIRED FOR ENRICHED FARINA WOULD
BE ABOUT 75 CENTS PER BARREL, AND RESPONDENT CONCEDES THAT THE COST TO
IT MAY BE BUT A FRACTION OF A CENT PER POUND.  THE RECORD IS OTHERWISE
SILENT AS TO THE PROBABLE EFFECT OF THE INCREASED COST ON THE MARKETING
OF RESPONDENT'S PRODUCT.  ON THIS RECORD IT DOES NOT APPEAR THAT THE
INCREASED COST HAS ANY SUBSTANTIAL BEARING ON THE REASONABLENESS OF THE
REGULATION. 

WE CONCLUDE THAT THE ADMINISTRATOR DID NOT DEPART FROM STATUTORY
REQUIREMENTS IN CHOOSING THESE STANDARDS OF IDENTITY FOR THE PURPOSE OF
PROMOTING FAIR DEALING IN THE INTEREST OF CONSUMERS, THAT THE STANDARDS
WHICH HE SELECTED ARE ADAPTED TO THAT END, AND THAT THEY ARE ADEQUATELY
SUPPORTED BY FINDINGS AND EVIDENCE.  REVERSED. 

FN1  AS ENACTED, THE ACT VESTED THE FOREGOING POWERS IN THE SECRETARY
OF AGRICULTURE.  BY SECS. 12 AND 13 OF REORGANIZATION PLAN NO. IV, 54
STAT. 1234, 1237, APPROVED APRIL 11, 1940, THE FEDERAL FOOD AND DRUG
ADMINISTRATION AND ALL FUNCTIONS OF THE SECRETARY OF AGRICULTURE
RELATING THERETO WERE TRANSFERRED TO THE FEDERAL SECURITY AGENCY AND
THE FEDERAL SECURITY ADMINISTRATOR. 

FN2  RESPONDENT CONTENDED IN THE COURT BELOW THAT THE NOTICE WAS
INADEQUATE.  IT APPEARS TO HAVE ABANDONED THAT CONTENTION HERE, BUT IN
ANY EVENT WE THINK THAT IT IS WITHOUT MERIT IN VIEW OF RESPONDENT'S
PARTICIPATION IN THE ORIGINAL HEARING, AND IN VIEW OF THE PUBLICATION
OF NOTICE OF A RECONVENED HEARING DEVOTED SOLELY TO THE "PROPRIETY OF
THE ADDITION OF VITAMINS AND MINERALS TO ...  (I) FARINA  ...  " 

FN3  THE EFFECTIVE DATE OF THE RIBOFLAVIN REQUIREMENT HAS BEEN
POSTPONED UNTIL APRIL 20, 1943, BECAUSE IT APPEARED THAT THE AVAILABLE
SUPPLY WAS INADEQUATE.  7 FED. REG. 3055. 

FN4  ONE WITNESS AT THE HEARING REFERRED TO ESTIMATES THAT OVER 95%
OF HUMAN CONSUMPTION OF WHEAT PRODUCTS IS IN THE FORM OF WHITE FLOUR. 

FN5  THE REPORT OF THE OFFICER PRESIDING AT THE HEARING ENUMERATES
THE FOLLOWING VARIETIES DISCLOSED BY THE TESTIMONY: 

"FLOURS, PHOSPHATED FLOURS, AND SELF-RISING FLOURS - 

1.  ONE WITH ADDED VITAMIN D; 

2.  ONE WITH ADDED CALCIUM; 

3.  ONE WITH ADDED VITAMIN B1, NICOTINIC ACID, AND CALCIUM (PRODUCED
BY SOME 23 MILLS); 

4.  ONE WITH ADDED VITAMIN B1, CALCIUM, AND IRON; 

5.  ONE CONTAINING WHEAT GERM AND WHEAT GERM OIL, SAID TO FURNISH
VITAMIN B1, VITAMIN E AND RIBOFLAVIN; 

6.  ONE 'LONG EXTRACTION' FLOUR CONTAINING B1, RIBOFLAVIN, CALCIUM
AND IRON." 

"FARINAS - 

7.  ONE WITH ADDED VITAMIN D; 

8.  ONE WITH ADDED VITAMIN B1, CALCIUM AND IRON." 

THE LABELS USED, AND ADVERTISING CLAIMS MADE, FOR THOSE PRODUCTS WERE
NOT IN THE RECORD.  HOWEVER, THERE WAS TESTIMONY THAT CERTAIN OF THEM
WERE SOLD UNDER SUCH NAMES AS "SUNFED," "VITAWHITE," "HOLWHITE."    FN6
THE PROVISION ADOPTED BY THE CONFERENCE COMMITTEE IS ONE WHICH WAS
PROPOSED AS AN AMENDMENT FROM THE FLOOR OF THE HOUSE BY MR. MAPES, A
MINORITY MEMBER OF THE HOUSE COMMITTEE AND ONE OF THE HOUSE CONFEREES. 
IN PROPOSING IT HE SAID THAT IT WAS "THE SAME AS THE COURT REVIEW
ARE NECESSARY TO ADAPT IT TO THE PENDING BILL," AND HE REFERRED TO
"SIMILAR" PROVISIONS IN THE BITUMINOUS COAL COMMISSION ACT, NATIONAL
LABOR RELATIONS ACT, SECURITIES EXCHANGE ACT, AND FEDERAL
COMMUNICATIONS ACT.  83 CONG. REC., 7892, 7777-8.    FN7  A MESSAGE OF
THE PRESIDENT, DATED MARCH 22, 1935, URGING PASSAGE OF THE BILL AND
PARTICULARLY OF THE STANDARD OF IDENTITY PROVISION, POINTED OUT THAT
"THE VARIOUS QUALITIES OF GOODS REQUIRE A KIND OF DISCRIMINATION WHICH
IS NOT AT THE COMMAND OF CONSUMERS.  THEY ARE LIKELY TO CONFUSE OUTWARD
APPEARANCES WITH INWARD INTEGRITY.  IN SUCH A SITUATION AS HAS GROWN UP
THROUGH OUR RISING LEVEL OF LIVING AND OUR MULTIPLICATION OF GOODS,
CONSUMERS ARE PREVENTED FROM CHOOSING INTELLIGENTLY AND PRODUCERS ARE
HANDICAPPED IN ANY ATTEMPT TO MAINTAIN HIGHER STANDARDS."  H.R. REP.
NO. 2755, 74TH CONG., 2D SESS., PP. 1-2. 

THE CHAIRMAN OF THE FOOD AND DRUG ADMINISTRATION TESTIFIED BEFORE THE
SENATE COMMITTEE THAT THE PROVISION FOR STANDARDS OF IDENTITY WHICH
WOULD REFLECT "THE EXPECTATION OF THE BUYER" WAS "ONE OF THE MOST
IMPORTANT PROVISIONS OF THE ACT."  HEARINGS BEFORE A SUBCOMMITTEE OF
THE SENATE COMMITTEE ON COMMERCE ON S. 1944, DEC. 7 AND 8, 1933, PP.
35, 36. 

FN8  THE STANDARD OF IDENTITY PROVISION WAS REPEATEDLY STATED IN THE
COMMITTEE REPORTS TO HAVE BEEN PATTERNED ON THE BUTTER STANDARDS ACT OF
1923, 42 STAT. 1500.  SEN. REP. NO. 361, 74TH CONG., 1ST SESS., P. 10;
SEN. REP. NO. 646, 74TH CONG., 1ST SESS., P. 4; SEN. REP. NO. 493, 73D
CONG., 2ND SESS., P. 10; H.R. REP. NO. 2139, 75TH CONG., 3RD SESS., P.
5.  THAT ACT WAS ENTITLED "AN ACT TO DEFINE BUTTER AND PROVIDE A
STANDARD THEREFOR," AND ESTABLISH A LEGISLATIVE DEFINITION AND STANDARD
FOR BUTTER.  THE CHAIRMAN OF THE HOUSE COMMITTEE WHICH REPORTED IT SAID
"THE ONLY THINGS YOU CAN PUT INTO (BUTTER) ARE SALT, CASEIN, THE BUTTER
FAT, AND WATER.  THAT IS WHAT THE DEFINITION PROVIDES."  HEARINGS,
HOUSE COMMITTEE ON AGRICULTURE ON H.R. 12053, 67TH CONG., 2ND SESS., P.
25; SEE ALSO H.R. REP. NO. 1141, 67TH CONG., 2ND SESS., P. 4. 

ALSO REFERRED TO AS MODELS FOR THE STANDARDS TO BE PROMULGATED UNDER
THE PRESENT ACT WERE THE ADVISORY STANDARDS THEN BEING PROMULGATED BY
THE PURE FOOD AND DRUG ADMINISTRATION UNDER THE AUTHORITY GIVEN BY THE
APPROPRIATION ACT OF JUNE 3, 1902, 32 STAT. 286, 296, AND SUBSEQUENT
ACTS.  HEARING BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
COMMERCE ON S. 1944, DEC. 7 AND 8, 1933, P. 36.  (STATEMENT OF WALTER
B. CAMPBELL, CHIEF OF FOOD AND DRUG ADMINISTRATION, DEPT. OF
AGRICULTURE.)  THE ANNOUNCEMENTS PROMULGATING THESE STANDARDS STATED
THAT THEY WERE "SO FRAMED AS TO EXCLUDE SUBSTANCES NOT MENTIONED IN THE
DEFINITION."  E.G., DEPT. OF AGRICULTURE, FOOD AND DRUG ADMINISTRATION,
SERVICE AND REGULATORY ANNOUNCEMENT NO. 2, REVISION 4(1933) P. 1; ID.,
REV. 5(1936) P. 1. 

MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED FOR THE REASONS STATED BY THE CIRCUIT COURT OF APPEALS, 129
F.2D 76. 
..END :







VIERECK V. UNITED STATES, 318 U.S. 236 


NO. 458.  ARGUED FEBRUARY 1, 2, 1943.  - DECIDED MARCH 1, 1943.  - 130
F.2D 945, REVERSED. 


1.  WHERE THE CHARGE OF THE TRIAL COURT IN A CRIMINAL PROSECUTION FOR
VIOLATION OF THE ACT OF JUNE 8, 1938, AS AMENDED BY THE ACT OF AUGUST
7, 1939, AUTHORIZED THE JURY TO RETURN A VERDICT OF GUILTY IF IT FOUND
THAT THE DEFENDANT HAD WILLFULLY FAILED TO DISCLOSE ACTIVITIES WHICH
WERE WHOLLY ON HIS OWN BEHALF, THE CONVICTION CAN BE SUSTAINED ONLY IF
THE FAILURE TO DISCLOSE SUCH ACTIVITIES WAS A CRIMINAL OFFENSE, EVEN
THOUGH THE EVIDENCE MIGHT WARRANT A FINDING THAT ALL OF THE DEFENDANT'S
ACTIVITIES WERE IN FACT IN BEHALF OF FOREIGN PRINCIPALS.  P. 240. 

2.  THE ACT OF JUNE 8, 1938, AS AMENDED BY THE ACT OF AUGUST 7, 1939,
HELD NOT TO REQUIRE, OR AUTHORIZE THE SECRETARY OF STATE TO REQUIRE,
REGISTRANTS TO MAKE ANY STATEMENT OF THEIR ACTIVITIES OTHER THAN THOSE
IN WHICH THEY HAVE ENGAGED "AS AGENT" OF A FOREIGN PRINCIPAL.  P. 243. 

3.  THE UNAMBIGUOUS WORDS OF A CRIMINAL STATUTE ARE NOT TO BE ALTERED
BY JUDICIAL CONSTRUCTION SO AS TO PUNISH ONE NOT OTHERWISE WITHIN ITS
REACH, HOWEVER DESERVING OF PUNISHMENT HIS CONDUCT MAY SEEM.  P. 243. 

4.  THE APPLICATION OF THE AMENDATORY ACT OF APRIL 29, 1942, TO
IMPOSE UPON THE DEFENDANT IN THIS CASE A DUTY WHICH THE WORDS OF THE
PRIOR ACT PLAINLY EXCLUDE, CAN NOT BE JUSTIFIED BY DENOMINATING THE
AMENDATORY LEGISLATION AS CLARIFYING OR DECLARATORY.  P. 247. 

5.  THE DEFENDANT'S RIGHT TO A FAIR TRIAL IN THIS CASE WAS PREJUDICED
BY THE CONDUCT OF THE PROSECUTOR, WHO, IN HIS CLOSING REMARKS TO THE
JURY, INDULGED IN AN APPEAL WHOLLY IRRELEVANT TO ANY FACTS OR ISSUES IN
THE CASE, AND THE ONLY PURPOSE AND EFFECT OF WHICH COULD HAVE BEEN TO
AROUSE PASSION AND PREJUDICE.  SUCH REMARKS SHOULD HAVE BEEN STOPPED BY
THE TRIAL JUDGE SUA SPONTE.  P. 247. 

6.  IT IS AS MUCH THE DUTY OF THE PROSECUTOR TO REFRAIN FROM IMPROPER
METHODS CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS IT IS TO USE
EVERY LEGITIMATE MEANS TO BRING ABOUT A JUST ONE.  P. 248. 

VIERECK V. UNITED STATES. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 317 U.S. 618, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR VIOLATION OF A FEDERAL ACT REQUIRING THE REGISTRATION OF CERTAIN
AGENTS OF FOREIGN PRINCIPALS. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED ON THREE COUNTS OF AN INDICTMENT, EACH
CHARGING HIM WITH THE WILLFUL OMISSION TO STATE A MATERIAL FACT
REQUIRED TO BE STATED IN A SUPPLEMENTAL REGISTRATION STATEMENT FILED BY
HIM WITH THE SECRETARY OF STATE, IN VIOLATION OF THE PENAL PROVISIONS
OF THE ACT OF JUNE 8, 1938, 52 STAT. 631, AS AMENDED BY THE ACT OF
AUGUST 7, 1939, 53 STAT. 1244, REQUIRING THE REGISTRATION OF CERTAIN
AGENTS OF FOREIGN PRINCIPALS.  THE QUESTION DECISIVE OF PETITIONER'S
CHALLENGE TO THE VALIDITY OF HIS CONVICTION IS WHETHER THE STATUTE OR
ANY AUTHORIZED REGULATION OF THE SECRETARY REQUIRED THE STATEMENT WHICH
PETITIONER OMITTED TO MAKE. 

ACTING AS "AGENT OF A FOREIGN PRINCIPAL," EITHER AS PUBLIC-RELATIONS
COUNSEL, PUBLICITY AGENT OR REPRESENTATIVE, WITH EXCEPTIONS NOT NOW
RELEVANT, MUST FILE WITH THE SECRETARY OF STATE A REGISTRATION
STATEMENT, ON A FORM PRESCRIBED BY THE SECRETARY, CONTAINING CERTAIN
SPECIFIED ITEMS OF INFORMATION.  THESE INCLUDE A COPY OF THE
REGISTRANT'S CONTRACT WITH HIS PRINCIPAL, OR A STATEMENT OF ITS TERMS
AND CONDITIONS IF ORAL, THE COMPENSATION TO BE PAID UNDER THE CONTRACT,
AND THE NAMES OF ALL WHO HAVE CONTRIBUTED OR PROMISED TO CONTRIBUTE TO
THE COMPENSATION.  BEYOND THE TERMS AND CONDITIONS OF THE REGISTRANT'S
CONTRACTS WITH FOREIGN PRINCIPALS, THE STATUTE MADE NO REQUIREMENT THAT
THE ORIGINAL REGISTRATION STATEMENT CONTAIN ANY INFORMATION AS TO THE
REGISTRANT'S SERVICES OR ACTIVITIES EITHER IN PERFORMANCE OF HIS
CONTRACT OF EMPLOYMENT OR OTHERWISE. 

BY SEC. 3 EVERY REGISTRANT IS REQUIRED TO FILE AT THE END OF EACH SIX
MONTHS' PERIOD, FOLLOWING HIS ORIGINAL REGISTRATION, A SUPPLEMENTAL
STATEMENT "ON A FORM PRESCRIBED BY THE SECRETARY, WHICH SHALL SET FORTH
WITH RESPECT TO SUCH PRECEDING SIX MONTHS' PERIOD - (A) SUCH FACTS AS
MAY BE NECESSARY TO MAKE THE INFORMATION REQUIRED UNDER SECTION 2
HEREOF ACCURATE AND CURRENT WITH RESPECT TO SUCH PERIOD," AND "(C) A
STATEMENT CONTAINING SUCH DETAILS REQUIRED UNDER THIS ACT AS THE
SECRETARY SHALL FIX, OF THE ACTIVITIES OF SUCH PERSON AS AGENT OF A
FOREIGN PRINCIPAL DURING SUCH SIX MONTHS' PERIOD."  AND BY SEC. 6, "THE
SECRETARY IS AUTHORIZED AND DIRECTED TO PRESCRIBE SUCH RULES,
REGULATIONS, AND FORMS AS MAY BE NECESSARY TO CARRY OUT THIS ACT." 
TO FILE ANY STATEMENT REQUIRED TO BE FILED UNDER THIS ACT, OR IN
COMPLYING WITH THE PROVISIONS OF THIS ACT, MAKES A FALSE STATEMENT OF A
MATERIAL FACT, OR WILLFULLY OMITS TO STATE ANY MATERIAL FACT REQUIRED
TO BE STATED THEREIN." 

IN PURPORTED CONFORMITY TO THE STATUTE, THE SECRETARY, ON SEPTEMBER
15, 1939, PROMULGATED REGULATIONS AND PRESCRIBED A FORM OF
"SUPPLEMENTAL REGISTRATION STATEMENT."  CHAPTER IV, REGULATION 12, OF
THE REGULATIONS PROVIDED:  "AGENTS OF FOREIGN PRINCIPALS WHO ENGAGE,
WHETHER OR NOT ON BEHALF OF THEIR FOREIGN PRINCIPAL, IN ACTIVITIES NOT
INCLUDED AMONG THE EXCEPTIONS SET FORTH IN THE ACT AND REGULATIONS
SHALL BE CONSIDERED SUBJECT TO THE REQUIREMENT OF REGISTRATION."  THE
PRESCRIBED FORM OF SUPPLEMENTAL REGISTRATION STATEMENT DIRECTED THE
REGISTRANT TO MAKE A STATEMENT GIVING CERTAIN ITEMS OF INFORMATION, NO.
11 OF WHICH WAS "COMPREHENSIVE STATEMENT OF NATURE OF BUSINESS OF
REGISTRANT." 

THE THREE COUNTS OF THE INDICTMENT ON WHICH PETITIONER WAS CONVICTED
CHARGED THAT IN THREE SUCCESSIVE SUPPLEMENTAL REGISTRATION STATEMENTS
FILED BY HIM ON APRIL 23, 1940, OCTOBER 25, 1940, AND APRIL 25, 1941,
AS THE AGENT OF GERMAN PRINCIPALS, HE HAD KNOWINGLY AND WILLFULLY
FAILED TO DISCLOSE, IN RESPONSE TO ITEM 11 WHICH CALLED FOR A
"COMPREHENSIVE STATEMENT OF NATURE OF BUSINESS OF REGISTRANT," NUMEROUS
ACTIVITIES IN WHICH HE HAD ENGAGED DURING THE PERIOD COVERED BY THE
SUPPLEMENTAL REGISTRATION STATEMENT.  ON THE TRIAL IT APPEARED THAT
PETITIONER, ON SEPTEMBER 26, 1939, HAD REGISTERED AS AGENT AND UNITED
STATES CORRESPONDENT FOR THE MUNCHNER NEUESTE NACHRICHTEN, A MUNICH
NEWSPAPER, AND HAD LATER LODGED WITH THE STATE DEPARTMENT A COPY OF HIS
CONTRACT, DATED SEPTEMBER 27, 1939, AS AGENT AND EDITORIAL WRITER FOR
THE GERMAN LIBRARY OF INFORMATION, AN AGENCY OF THE GERMAN GOVERNMENT,
TO DO EDITORIAL WORK IN CONNECTION WITH "FACTS IN REVIEW," A
PUBLICATION OF THE LIBRARY.  ON MARCH 17, 1941, PETITIONER REGISTERED
HIS CONTRACT, WITH A PERSON ASSOCIATED WITH THE MUNICH NEWSPAPER, TO
ACT AS AGENT FOR THE PUBLICATION IN THE UNITED STATES OF A BOOK "THE
ONE HUNDRED FAMILIES WHO RULE GREAT BRITAIN." 

THERE WAS ALSO EVIDENCE FROM WHICH THE JURY COULD HAVE FOUND THAT
DURING THE EIGHTEEN MONTHS' PERIOD COVERED BY PETITIONER'S THREE
SUPPLEMENTAL REGISTRATION STATEMENTS, AND FROM AUGUST 3, 1940, HE HAD
CONTROLLED AND FINANCED FLANDERS HALL, A CORPORATION WHICH PUBLISHED
NUMEROUS BOOKS AND PAMPHLETS FROM MANUSCRIPTS FURNISHED BY PETITIONER;
THAT IT HAD ALSO PUBLISHED OTHER BOOKS FURNISHED BY PETITIONER WHICH
PURPORTED TO BE ENGLISH TRANSLATIONS OF FRENCH OR DUTCH PUBLICATIONS,
OR TO HAVE BEEN COMPILED FROM ENGLISH SOURCES, BUT WHICH WERE IN FACT
TRANSLATIONS OF GERMAN BOOKS PUBLISHED BY THE DEUTSCHE
INFORMATIONSSTELLE OF BERLIN.  ALL WERE HIGHLY CRITICAL OF BRITISH
FOREIGN AND COLONIAL POLICY.  DURING THIS PERIOD PETITIONER ACTIVELY
PARTICIPATED IN THE FORMATION OF THE "MAKE EUROPE PAY WAR DEBTS
COMMITTEE," AND THE "ISLANDS FOR WAR DEBTS COMMITTEE," AND MADE USE OF
THESE ORGANIZATIONS AS A MEANS OF DISTRIBUTING PROPAGANDA THROUGH THE
PRESS AND RADIO AND UNDER CONGRESSIONAL FRANK.  HE ALSO CONSULTED WITH
AND WAS ACTIVE IN WRITING SPEECHES FOR VARIOUS MEMBERS OF CONGRESS, AND
IN SECURING DISTRIBUTION OF THE SPEECHES UNDER CONGRESSIONAL FRANK. 

IN MAKING THE STATEMENT REQUIRED BY ITEM 11 IN EACH OF HIS THREE
SUPPLEMENTAL REGISTRATION STATEMENTS, PETITIONER RESPONDED TO THE
REQUEST FOR A COMPREHENSIVE STATEMENT OF THE NATURE OF HIS BUSINESS BY
THE SINGLE PHRASE "AUTHOR AND JOURNALIST."  HE MADE NO FURTHER
DISCLOSURE OF HIS VARIOUS ACTIVITIES DURING THE PERIOD COVERED BY THE
SUPPLEMENTAL REGISTRATION STATEMENTS. 

WHEN SUBMITTING THE CASE TO THE JURY, THE TRIAL COURT, AT THE
GOVERNMENT'S REQUEST, CHARGED THAT "IF YOU FIND THAT THE DEFENDANT
ENGAGED IN THE ACTIVITIES SET FORTH IN THE INDICTMENT, IT IS NOT
NECESSARY THAT YOU FIND THAT HE ENGAGED IN SUCH ACTIVITIES ON BEHALF OF
HIS FOREIGN PRINCIPAL OR PRINCIPALS.  IT IS SUFFICIENT IF YOU FIND THAT
HE ENGAGED IN THE ACTIVITIES, WHETHER ON BEHALF OF HIS FOREIGN
PRINCIPAL OR PRINCIPALS OR ON HIS OWN BEHALF."  ON APPROPRIATE
OBJECTION AND EXCEPTION TO THIS INSTRUCTION, PETITIONER CONTENDED THAT
UNDER THE STATUTE HE WAS NOT REQUIRED TO DISCLOSE HIS ACTIVITIES ON HIS
OWN BEHALF BUT ONLY THOSE FOR FOREIGN PRINCIPALS.  THE JURY RETURNED A
VERDICT OF GUILTY, THE JUDGMENT OF CONVICTION WAS AFFIRMED BY THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA, 130 F.2D 945, AND WE GRANTED
CERTIORARI.  317 U.S. 618. 

AS THE CHARGE LEFT THE JURY FREE TO RETURN A VERDICT OF GUILTY IF IT
FOUND THAT PETITIONER HAD WILLFULLY FAILED TO DISCLOSE ACTIVITIES WHICH
WERE WHOLLY ON HIS OWN BEHALF, THE CONVICTION CAN BE SUSTAINED ONLY IF
THE FAILURE TO DISCLOSE SUCH ACTIVITIES WAS A CRIMINAL OFFENSE.  IN ITS
BRIEF AND ON THE ARGUMENT HERE THE GOVERNMENT ACCORDINGLY CONCEDED THAT
- EVEN THOUGH THE EVIDENCE MIGHT WARRANT A JURY'S FINDING THAT ALL
PETITIONER'S ACTIVITIES WERE IN FACT IN BEHALF OF HIS FOREIGN
PRINCIPALS - THE CONVICTION CANNOT STAND IF THE CHARGE WAS ERRONEOUS. 
SEE WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, 292; PIERCE V. UNITED
STATES, 314 U.S. 306, 310.  WE ARE THUS BROUGHT TO THE QUESTION WHETHER
THE STATUTE, SUPPLEMENTED BY THE REGULATIONS OF THE SECRETARY, REQUIRED
SUCH INFORMATION TO BE GIVEN AND IMPOSED PENAL SANCTIONS FOR
PETITIONER'S WILLFUL FAILURE TO GIVE IT. 

THE ACT OF 1938 REQUIRING REGISTRATION OF AGENTS FOR FOREIGN
PRINCIPALS WAS A NEW TYPE OF LEGISLATION ADOPTED IN THE CRITICAL PERIOD
BEFORE THE OUTBREAK OF THE WAR.  THE GENERAL PURPOSE OF THE LEGISLATION
WAS TO IDENTIFY AGENTS OF FOREIGN PRINCIPALS WHO MIGHT ENGAGE IN
SUBVERSIVE ACTS OR IN SPREADING FOREIGN PROPAGANDA, AND TO REQUIRE THEM
TO MAKE PUBLIC RECORD OF THE NATURE OF THEIR EMPLOYMENT.  BUT THE MEANS
ADOPTED TO ACCOMPLISH THAT END ARE DEFINED BY THE STATUTE ITSELF,
WHICH, AS WILL PRESENTLY APPEAR MORE IN DETAIL, FOLLOWED THE
RECOMMENDATIONS OF A HOUSE COMMITTEE WHICH HAD INVESTIGATED FOREIGN
PROPAGANDA.  THESE MEANS INCLUDED THE REQUIREMENT OF REGISTRATION OF
AGENTS FOR FOREIGN PRINCIPALS - WITH WHICH IT APPEARS THAT PETITIONER
COMPLIED - AND THE REQUIREMENT THAT THE REGISTRANT GIVE CERTAIN
INFORMATION CONCERNING HIS ACTIVITIES AS SUCH AGENT. 

ONE MAY BE SUBJECTED TO PUNISHMENT FOR CRIME IN THE FEDERAL COURTS
ONLY FOR THE COMMISSION OR OMISSION OF AN ACT DEFINED BY STATUTE, OR BY
REGULATION HAVING LEGISLATIVE AUTHORITY, AND THEN ONLY IF PUNISHMENT IS
AUTHORIZED BY CONGRESS.  UNITED STATES V. GEORGE, 228 U.S. 14, 20-22;
WILLIAMSON V. UNITED STATES, 207 U.S. 425, 453-62; UNITED STATES V.
STANDARD BREWERY, 251 U.S. 210, 219-20; UNITED STATES V. EATON, 144
U.S. 677; UNITED STATES V. GRIMAUD, 220 U.S. 506; UNITED STATES V.
SMULL, 236 U.S. 405; IN RE KOLLOCK, 165 U.S. 526.  PENAL SANCTIONS
ATTACH HERE FOR WILLFUL FAILURE TO FILE A STATEMENT WHEN REQUIRED, OR
IF THE REGISTRANT "WILLFULLY OMITS TO STATE ANY MATERIAL FACT REQUIRED
TO BE STATED."  UNLESS THE STATUTE, FAIRLY READ, DEMANDS THE DISCLOSURE
OF THE INFORMATION WHICH PETITIONER FAILED TO GIVE, HE CANNOT BE
SUBJECTED TO THE STATUTORY PENALTIES. 

IT IS TO BE NOTED THAT ALTHOUGH THE STATUTE REQUIRED REGISTRATION OF
CONTRACTS ALREADY ENTERED INTO AT THE TIME OF ITS ADOPTION, IT DID NOT
INCLUDE, IN ITS ENUMERATION OF INFORMATION TO BE GIVEN IN THE ORIGINAL
REGISTRATION STATEMENT, ANY DISCLOSURE OF A REGISTRANT'S ACTIVITIES
EITHER UNDER HIS AGENCY CONTRACT OR OTHERWISE.  AND THE ONLY MENTION IN
THE STATUTE OF A STATEMENT OF SUCH ACTIVITIES IS IN SEC. 3(C), WHICH
DIRECTED THAT SUPPLEMENTAL REGISTRATION STATEMENTS CONTAIN "SUCH
DETAILS REQUIRED UNDER THIS ACT AS THE SECRETARY SHALL FIX, OF THE
ACTIVITIES OF SUCH PERSON AS AGENT OF A FOREIGN PRINCIPAL."  THE
REQUIREMENT OF THIS SECTION IS SUBJECT TO TWO LIMITATIONS.  ONE IS THAT
THE STATEMENT IS TO BE OF SUCH DETAILS OF THE REGISTRANT'S ACTIVITIES
"AS THE SECRETARY SHALL FIX"; THE OTHER IS THAT THE DETAILS ARE TO BE
OF ACTIVITIES OF THE REGISTRANT "AS AGENT OF A FOREIGN PRINCIPAL." 

NEITHER LIMITATION CAN BE DISREGARDED IN DETERMINING WHAT STATEMENT
THE STATUTE, AND ANY REGULATION WHICH IT AUTHORIZES THE SECRETARY TO
PROMULGATE, CALLED ON PETITIONER TO MAKE.  THE SECRETARY'S REGULATION
12 OF CHAPTER IV, ALREADY QUOTED, ON WHICH THE GOVERNMENT RELIES,
PLAINLY DOES NOT CALL FOR ANY STATEMENT OF A REGISTRANT'S ACTIVITIES. 
IT ONLY DECLARES THAT AGENTS WHO ENGAGE IN ACTIVITIES "WHETHER OR NOT
ON BEHALF OF THEIR FOREIGN PRINCIPAL" ARE SUBJECT TO REGISTRATION.  IT
REQUIRES NO STATEMENT OF THEIR ACTIVITIES AND ADDS NOTHING TO THE
COMMAND OF SECS. 2 AND 3 THAT ALL AGENTS OF FOREIGN PRINCIPALS SHALL
REGISTER, A REQUIREMENT WITH WHICH PETITIONER COMPLIED.  WHATEVER THE
UNDISCLOSED PURPOSE OF THIS REGULATION, A FAIR READING OF IT WOULD NOT
INDICATE TO A REGISTRANT THAT IT REQUIRED ANY STATEMENT OF HIS
ACTIVITIES IN ANY CAPACITY. 

BUT TREATING ITEM 11 OF THE SUPPLEMENTAL REGISTRATION STATEMENT
("COMPREHENSIVE STATEMENT OF NATURE OF BUSINESS OF REGISTRANT"),
PRESCRIBED BY THE SECRETARY, AS A REGULATION FIXING THE DETAILS OF THE
REGISTRANT'S ACTIVITIES WHICH HE IS REQUIRED TO STATE, IT MUST EITHER
BE TAKEN AS LIMITED TO A STATEMENT OF HIS ACTIVITIES AS AGENT, TO WHICH
SEC. 3(C) ALONE REFERS, OR TO EXCEED THE AUTHORITY CONFERRED UPON THE
SECRETARY BY THAT SECTION.  IN NEITHER CASE DOES THE STATUTE COMMAND,
OR AUTHORIZE THE SECRETARY TO COMMAND, REGISTRANTS TO MAKE ANY
STATEMENT OF THEIR ACTIVITIES OTHER THAN THOSE IN WHICH THEY HAVE
ENGAGED "AS AGENT." 

WE CANNOT READ THAT PHRASE AS THOUGH IT HAD BEEN WRITTEN "WHILE AN
AGENT" OR "WHO IS AN AGENT."  THE UNAMBIGUOUS WORDS OF A STATUTE WHICH
IMPOSES CRIMINAL PENALTIES ARE NOT TO BE ALTERED BY JUDICIAL
CONSTRUCTION SO AS TO PUNISH ONE NOT OTHERWISE WITHIN ITS REACH,
HOWEVER DESERVING OF PUNISHMENT HIS CONDUCT MAY SEEM.  NOR IS SUCH AN
ALTERATION BY CONSTRUCTION AIDED BY REFERENCE TO SEC. 6, WHICH DIRECTS
THE SECRETARY TO PRESCRIBE RULES AND REGULATIONS "TO CARRY OUT THIS
ACT."  FOR, AS WE HAVE SEEN, THE ONLY PROVISION OF THE ACT RELATING TO
STATEMENTS OF THE REGISTRANT'S ACTIVITIES IS SEC. 3(C), WHICH DEFINES
ITS OWN AND THE SECRETARY'S LIMITATIONS.  SECTION 6 DOES NOT GIVE TO
THE SECRETARY ANY AUTHORITY NOT TO BE FOUND IN THE ACT, AND ESPECIALLY
NOT AN AUTHORITY WHICH OVERRIDES THE SPECIFIC LIMITATIONS OF SEC.
3(C).    WHILE CONGRESS UNDOUBTEDLY HAD A GENERAL PURPOSE TO REGULATE
AGENTS OF FOREIGN PRINCIPALS IN THE PUBLIC INTEREST BY DIRECTING THEM
TO REGISTER AND FURNISH SUCH INFORMATION AS THE ACT PRESCRIBED, WE
CANNOT ADD TO ITS PROVISIONS OTHER REQUIREMENTS MERELY BECAUSE WE THINK
THEY MIGHT MORE SUCCESSFULLY HAVE EFFECTUATED THAT PURPOSE.  AND WE
FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT TO INDICATE THAT
ANYONE CONCERNED IN ITS ADOPTION HAD ANY THOUGHT OF REQUIRING, OR
AUTHORIZING THE SECRETARY TO REQUIRE, MORE THAN A STATEMENT OF
REGISTRANTS' ACTIVITIES IN BEHALF OF THEIR FOREIGN PRINCIPALS. 

IN 1935 THE MCCORMACK COMMITTEE, REPORTING ON ITS INVESTIGATION OF
NAZI AND OTHER PROPAGANDA, RECOMMENDED:  "THAT THE CONGRESS SHOULD
ENACT A STATUTE REQUIRING ALL PUBLICITY, PROPAGANDA, OR PUBLIC
RELATIONS AGENTS OR OTHER AGENTS OR AGENCIES, WHO REPRESENT IN THIS
COUNTRY ANY FOREIGN GOVERNMENT OR A FOREIGN POLITICAL PARTY OR FOREIGN
INDUSTRIAL OR COMMERCIAL ORGANIZATION, TO REGISTER WITH THE SECRETARY
OF STATE OF THE UNITED STATES, AND TO STATE NAME AND LOCATION OF SUCH
FOREIGN EMPLOYER, THE CHARACTER OF THE SERVICE TO BE RENDERED, AND THE
AMOUNT OF COMPENSATION PAID OR TO BE PAID THEREFOR."  H.R. REP. NO.
153, 74TH CONG., 1ST SESS., P. 23.  THE HOUSE AND SENATE COMMITTEE
REPORTS, URGING ENACTMENT OF THE MCCORMACK BILL WHICH BECAME THE 1938
ACT, BOTH DECLARE THAT ITS PURPOSE WAS TO CARRY OUT THESE
RECOMMENDATIONS OF THE MCCORMACK COMMITTEE.  H.R. REP. NO. 1381, 75TH
CONG., 1ST SESS., P. 1; S. REP. NO. 1783, 75TH CONG., 3D SESS., P. 2. 

AS MAY BE SEEN FROM THE TEXT WHICH WE HAVE QUOTED, THESE
RECOMMENDATIONS WERE LIMITED TO THE PROPOSAL OF SPECIFIC MEASURES FOR
ACHIEVING THE COMMITTEE'S GENERAL PURPOSE, BY REQUIRING DISCLOSURE OF
THE IDENTITY OF THE AGENT AND OF HIS FOREIGN PRINCIPAL AND THE AGENT'S
RELATIONSHIP TO THE PRINCIPAL.  THEY GIVE NO HINT OF AN INTENTION TO
REQUIRE AGENTS TO DISCLOSE ACTIVITIES NOT IN BEHALF OF THEIR FOREIGN
PRINCIPALS.  AND IN SUPPORTING THE AMENDATORY LEGISLATION ENACTED IN
1942, WHICH, AMONG OTHER ADDITIONS, REQUIRED REGISTRANTS TO MAKE "A
COMPREHENSIVE STATEMENT OF THE NATURE OF REGISTRANT'S BUSINESS" (ACT OF
APRIL 29, 1942, SEC. 2(A)(3)), REPRESENTATIVE MCCORMACK STATED:  "THE
PRESENT BILL STRENGTHENS THE MCCORMACK ACT.  I WAS EXPERIMENTING AT
THAT TIME, AND, NATURALLY, WHEN YOU ARE EXPERIMENTING YOU CANNOT GO AS
FAR AS YOU CAN AFTER YOU HAVE HAD EXPERIENCE, AND IN THE LIGHT OF THE
EXPERIENCE GAINED FROM THE ADMINISTRATION OF THE MCCORMACK ACT, THESE
AMENDMENTS ARE NECESSARY TO STRENGTHEN THE ACT FOR THE BEST INTERESTS
OF OUR COUNTRY."  88 CONG. REC., JAN. 28, 1942, P. 802. 

EVEN THOUGH THE SPECIFIC RESTRICTION OF SEC. 3(C) WERE DUE TO
DEFECTIVE DRAFTSMANSHIP OR TO INADVERTENCE, WHICH HARDLY SEEMS TO BE
THE CASE, MEN ARE NOT SUBJECTED TO CRIMINAL PUNISHMENT BECAUSE THEIR
CONDUCT OFFENDS OUR PATRIOTIC EMOTIONS OR THWARTS A GENERAL PURPOSE
SOUGHT TO BE EFFECTED BY SPECIFIC COMMANDS WHICH THEY HAVE NOT
DISOBEYED.  NOR ARE THEY TO BE HELD GUILTY OF OFFENSES WHICH THE
STATUTES HAVE OMITTED, THOUGH BY INADVERTENCE, TO DEFINE AND CONDEMN. 
FOR THE COURTS ARE WITHOUT AUTHORITY TO REPRESS EVIL SAVE AS THE LAW
HAS PROSCRIBED IT AND THEN ONLY ACCORDING TO LAW. 

THE GOVERNMENT ARGUES THAT THE STATUTE WOULD HAVE BEEN A "HALFWAY
MEASURE" HAD IT NOT REQUIRED, OR AT LEAST AUTHORIZED THE SECRETARY TO
REQUIRE, THE REGISTRANT TO REVEAL THE PROPAGANDA WHICH HE PUT OUT OTHER
THAN ON BEHALF OF HIS FOREIGN PRINCIPAL.  CONGRESS ITSELF HAS
RECOGNIZED THAT THE LEGISLATION WAS IN THIS SENSE A HALFWAY MEASURE
WHEN IN 1942 THE ACT WAS AMENDED SO AS TO REQUIRE BOTH ORIGINAL AND
SUPPLEMENTAL REGISTRATION STATEMENTS TO CONTAIN A "COMPREHENSIVE
STATEMENT OF THE NATURE OF REGISTRANT'S BUSINESS," TOGETHER WITH OTHER
SPECIFICALLY REQUIRED INFORMATION AS TO THE CHARACTER OF REGISTRANTS'
ACTIVITIES.  ACT OF APRIL 29, 1942, C. 263, 56 STAT. 248, SECS.
2(A)(3), 2(A)(4), 2(A)(8), 2(A)(10), 2(B). 

THE SENATE JUDICIARY COMMITTEE IN RECOMMENDING THE 1942 LEGISLATION
SAID THAT "THE PRESENT ACT IS ALSO IMPROVED BY EXPLICIT ENLARGEMENT OF
THE REGISTRATION PROVISIONS SO AS TO RENDER THEM MORE EFFICACIOUS FOR
DISCLOSURE AND INVESTIGATIVE PURPOSES."  S. REP. NO. 913, 77TH CONG.,
1ST SESS., P. 9.  THE HOUSE JUDICIARY COMMITTEE DECLARED "THE EXISTING
LAW IS ALSO BELIEVED TO HAVE BEEN BOLSTERED BY EXPLICIT ENLARGEMENT OF
THE REGISTRATION PROVISIONS SO AS TO RENDER THEM MORE EFFICACIOUS FOR
DISCLOSURE AND INVESTIGATIVE PURPOSES.   ...  ALL OF THESE ADDITIONS
HAVE BEEN PROMPTED BY EXPERIENCE IN CASES UNDER THE PRESENT ACT."  H.
REP. NO. 1547, 77TH CONG., 1ST SESS., PP. 3-4.  FN1 

WHILE WE FIND IN THE COMMITTEE REPORTS NO MENTION OF THE EXPLICIT
RESTRICTION OF THE APPLICATION OF SEC. 3(C) OF THE OLD ACT TO THE
REGISTRANT'S ACTIVITIES "AS AGENT," THE REPORTS REVEAL A CLEAR PURPOSE
TO MAKE THE REGISTRATION REQUIREMENTS OF THE NEW ACT EXTEND TO ALL HIS
ACTIVITIES.  FN2 WE THINK THAT IN THIS RESPECT THE NEW ACT EXTENDS
BEYOND THE OLD, AND THAT THE APPLICATION, EX POST FACTO, OF THE NEW, TO
IMPOSE ON PETITIONER A DUTY WHICH THE WORDS OF THE OLD PLAINLY EXCLUDE,
IS NOT TO BE JUSTIFIED BY DENOMINATING THE AMENDMENT AS CLARIFYING OR
DECLARATORY LEGISLATION. 

AS THE CASE MUST BE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS, WE DIRECT ATTENTION TO CONDUCT OF THE PROSECUTING ATTORNEY
WHICH WE THINK PREJUDICED PETITIONER'S RIGHT TO A FAIR TRIAL, AND WHICH
INDEPENDENTLY OF THE ERROR FOR WHICH WE REVERSE MIGHT WELL HAVE PLACED
THE JUDGMENT OF CONVICTION IN JEOPARDY.  IN HIS CLOSING REMARKS TO THE
JURY HE INDULGED IN AN APPEAL WHOLLY IRRELEVANT TO ANY FACTS OR ISSUES
IN THE CASE, THE PURPOSE AND EFFECT OF WHICH COULD ONLY HAVE BEEN TO
AROUSE PASSION AND PREJUDICE.  FN3  THE TRIAL JUDGE OVERRULED, AS
COMING TOO LATE, PETITIONER'S OBJECTION FIRST MADE IN THE COURSE OF THE
COURT'S CHARGE TO THE JURY. 

AT A TIME WHEN PASSION AND PREJUDICE ARE HEIGHTENED BY EMOTIONS
STIRRED BY OUR PARTICIPATION IN A GREAT WAR, WE DO NOT DOUBT THAT THESE
REMARKS ADDRESSED TO THE JURY WERE HIGHLY PREJUDICIAL, AND THAT THEY
WERE OFFENSIVE TO THE DIGNITY AND GOOD ORDER WITH WHICH ALL PROCEEDINGS
IN COURT SHOULD BE CONDUCTED.  WE THINK THAT THE TRIAL JUDGE SHOULD
HAVE STOPPED COUNSEL'S DISCOURSE WITHOUT WAITING FOR AN OBJECTION. 
"THE UNITED STATES ATTORNEY IS THE REPRESENTATIVE NOT OF AN ORDINARY
PARTY TO A CONTROVERSY, BUT OF A SOVEREIGNTY WHOSE OBLIGATION TO GOVERN
IMPARTIALLY IS AS COMPELLING AS ITS OBLIGATION TO GOVERN AT ALL; AND
WHOSE INTEREST, THEREFORE, IN A CRIMINAL PROSECUTION IS NOT THAT IT
SHALL WIN A CASE, BUT THAT JUSTICE SHALL BE DONE.  AS SUCH, HE IS IN A
PECULIAR AND VERY DEFINITE SENSE THE SERVANT OF THE LAW, THE TWOFOLD
AIM OF WHICH IS THAT GUILT SHALL NOT ESCAPE OR INNOCENCE SUFFER.  HE
MAY PROSECUTE WITH EARNESTNESS AND VIGOR - INDEED, HE SHOULD DO SO.
BUT, WHILE HE MAY STRIKE HARD BLOWS, HE IS NOT AT LIBERTY TO STRIKE
FOUL ONES.  IT IS AS MUCH HIS DUTY TO REFRAIN FROM IMPROPER METHODS
CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS IT IS TO USE EVERY
LEGITIMATE MEANS TO BRING ABOUT A JUST ONE."  BERGER V. UNITED STATES,
295 U.S. 78, 88.  COMPARE NEW YORK CENTRAL R. CO. V. JOHNSON, 279 U.S.
310, 316-18.  REVERSED. 

FN1  THIS STATEMENT, WHICH OMITTED TO POINT OUT THAT THE ACTIVITIES
REFERRED TO IN SEC. 3(C) WERE THE REGISTRANT'S ACTIVITIES "AS AGENT,"
WAS COPIED VERBATIM FROM A STATEMENT WHICH HAD BEEN SUBMITTED AT A
HEARING ON NOVEMBER 28, 1941, BY THE CHIEF OF THE SPECIAL DEFENSE UNIT
OF THE DEPARTMENT OF JUSTICE, WHO HAD A LARGE SHARE IN DRAFTING THE
1942 LEGISLATION.  SEE HEARINGS BEFORE SUBCOMMITTEE NO. 4 OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 77TH CONG., 1ST SESS., ON H.R. 6045, PP.
26, 12.  THERE IS SOME LANGUAGE IN HIS STATEMENT, ALSO COPIED IN THE
HOUSE REPORT AT P. 4, WHICH MAY INDICATE THAT THE DEPARTMENT OF JUSTICE
THOUGHT THAT THE EXISTING LAW REQUIRED DISCLOSURE OF "INFORMATION ABOUT
THE NATURE OF THE REGISTRANT'S BUSINESS," AND THAT THE PROVISION IN THE
1942 LAW WOULD BE "DECLARATORY."  IF SUCH WAS ITS MEANING, THE
STATEMENT IGNORED AND DID NOT POINT OUT TO THE COMMITTEE THE EXPLICIT
LIMITATION OF SEC. 3(C) OF THE OLD ACT TO THE REGISTRANT'S ACTIVITIES
"AS AGENT."  MOREOVER, THE STATEMENT WAS SUBMITTED BY THE DEPARTMENT
AFTER THE INSTITUTION OF THE PROSECUTION OF THIS CASE (THE INDICTMENT
WAS FILED OCTOBER 8, 1941).  HENCE IN SOME MEASURE IT MAY HAVE
REPRESENTED THE DEPARTMENT'S VIEW OF THE LAW, WHICH WE THINK
INADMISSIBLE, REFLECTED IN ITS REQUESTED CHARGE TO THE JURY IN THIS
CASE. 

A LIKE INDEFINITENESS AS TO THE EXTENT TO WHICH THE NEW LEGISLATION
MIGHT BE REGARDED AS DECLARATORY IS SUGGESTED BY THE LETTER OF THE
ATTORNEY GENERAL OF NOVEMBER 24, 1941, RECOMMENDING THE NEW LEGISLATION
TO THE CHAIRMEN OF THE SENATE AND HOUSE JUDICIARY COMMITTEES.  THE
ATTORNEY GENERAL, HOWEVER, SEEMS TO HAVE THOUGHT THAT THE PROVISIONS OF
THE NEW BILL WOULD BE DECLARATORY, NOT OF THE PROVISIONS OF THE OLD
ACT, BUT OF THE "REQUIREMENTS OF THE REGISTRATION STATEMENT OF FOREIGN
AGENTS AS NOW PRESCRIBED OR MAY BE PRESCRIBED BY THE SECRETARY." 
INDICATION THAT THE ATTORNEY GENERAL DID NOT REGARD THE ACT, BEFORE THE
1942 AMENDMENT, AS EMBODYING THIS REQUIREMENT OF THE SECRETARY IS TO BE
FOUND IN THE FIRST PARAGRAPH OF HIS LETTER:  "UNDER EXISTING LAW, EVERY
PERSON WHO IS AN AGENT OF A FOREIGN PRINCIPAL IS REQUIRED TO FILE A
REGISTRATION STATEMENT WITH THE SECRETARY OF STATE, SETTING FORTH
CERTAIN INFORMATION DISCLOSING THE NATURE OF HIS RELATIONSHIP TO SUCH
FOREIGN PRINCIPAL."  HEARINGS, SUPRA, PP. 55-56; S. REP. NO. 913, 77TH
CONG., 1ST SESS., PP. 10-11. 

FN2  THE COMMITTEE REPORTS REFERRED TO ARE REPORTS ON H.R. 6269,
WHICH WAS PASSED BY CONGRESS, BUT VETOED BY THE PRESIDENT BECAUSE OUR
ENTRANCE INTO THE WAR HAD MADE IT NECESSARY TO ALTER THE BILL IN
CERTAIN RESPECTS, NOT MATERIAL HERE.  A NEW BILL, S. 2399, CONTAINING
SUCH CHANGES, BECAME THE ACT OF APRIL 29, 1942.  SEE S. REP. NO. 1227,
77TH CONG., 2D SESS.; H.R. REP. NO. 2038, 77TH CONG., 2D SESS. 

FN3  "IN CLOSING, LET ME REMIND YOU, LADIES AND GENTLEMEN, THAT THIS
IS WAR.  THIS IS WAR, HARSH, CRUEL, MURDEROUS WAR.  THERE ARE THOSE
WHO, RIGHT AT THIS VERY MOMENT, ARE PLOTTING YOUR DEATH AND MY DEATH;
PLOTTING OUR DEATH AND THE DEATH OF OUR FAMILIES BECAUSE WE HAVE
COMMITTED NO OTHER CRIME THAN THAT WE DO NOT AGREE WITH THEIR IDEAS OF
PERSECUTION AND CONCENTRATION CAMPS. 

"THIS IS WAR.  IT IS A FIGHT TO THE DEATH.  THE AMERICAN PEOPLE ARE
RELYING UPON YOU LADIES AND GENTLEMEN FOR THEIR PROTECTION AGAINST THIS
SORT OF A CRIME, JUST AS MUCH AS THEY ARE RELYING UPON THE PROTECTION
OF THE MEN WHO MAN THE GUNS IN BATAAN PENINSULA, AND EVERYWHERE ELSE. 
THEY ARE RELYING UPON YOU LADIES AND GENTLEMEN FOR THEIR PROTECTION. 
WE ARE AT WAR.  YOU HAVE A DUTY TO PERFORM HERE. 

"AS A REPRESENTATIVE OF YOUR GOVERNMENT I AM CALLING UPON EVERY ONE
OF YOU TO DO YOUR DUTY." 

MR. JUSTICE JACKSON AND MR. JUSTICE RUTLEDGE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS CONCURS, DISSENTING. 

THE PETITIONER, HAVING REGISTERED WITH THE SECRETARY OF STATE AS A
FOREIGN AGENT, WAS CONVICTED OF WILLFUL REFUSAL TO INFORM THE SECRETARY
OF CERTAIN BUSINESS ACTIVITIES IN WHICH HE SYSTEMATICALLY ATTEMPTED TO
INFLUENCE THE POLITICAL THOUGHT OF THIS COUNTRY ON BEHALF OF GERMANY. 
THE TRIAL JUDGE CHARGED THE JURY NOT TO CONVICT THE PETITIONER UNLESS
HE HAD ACTUAL KNOWLEDGE THAT THE ACT AND THE REGULATIONS REQUIRED HIM
TO SUPPLY THIS INFORMATION TO THE SECRETARY, AND THAT HAVING SUCH
KNOWLEDGE HE HAD REFUSED TO ANSWER THE SECRETARY'S QUESTION WITH THE
"DELIBERATE INTENTION OF AVOIDING THE REQUIREMENT OF THE STATUTE."  THE
JURY FOUND, AND IT IS NOT QUESTIONED HERE, THAT THE PETITIONER WAS A
PAID GERMAN PROPAGANDIST ENGAGED IN VARIOUS BUSINESS ACTIVITIES, IN ALL
OF WHICH HE MADE USE OF THE SAME KIND OF PROPAGANDA CALCULATED TO
FURTHER THE INTERESTS OF GERMANY IN THE UNITED STATES.  THE COURT HOLDS
THAT THE CONGRESSIONAL ENACTMENT REQUIRED PETITIONER TO REVEAL TO THE
SECRETARY ONLY THE PARTICULAR PROPAGANDA ACTIVITIES IN WHICH HE ENGAGED
PURSUANT TO HIS AGENCY.  IT HOLDS THAT THE PETITIONER COULD KEEP
SECRET, WITHOUT VIOLATING THE LAW, THOSE PROPAGANDA ACTIVITIES
UNDERTAKEN ON HIS OWN BEHALF, WHICH WERE OF EXACTLY THE SAME TYPE AND
WERE INTENDED TO ACCOMPLISH EXACTLY THE SAME PURPOSE AS THOSE FOR WHICH
HE HAD BEEN HIRED BY HIS GERMAN PRINCIPALS. 

TO THIS CONSTRUCTION OF THE ACT I CANNOT AGREE.  I THINK THAT SEC.
3(C) OF THE ACT, WHICH AUTHORIZES THE SECRETARY TO REQUIRE STATEMENTS
"OF THE ACTIVITIES OF SUCH PERSON AS AGENT OF A FOREIGN PRINCIPAL" MUST
BE READ IN THE LIGHT OF THE GENERAL PURPOSE OF THE ACT AND IN CLOSE
CONNECTION WITH SEC. 6, WHICH PERMITS THE SECRETARY TO PRESCRIBE THE
"RULES, REGULATIONS, AND FORMS" NECESSARY TO CARRY OUT THE ACT.  BY
SUCH A READING, THE SECRETARY WAS AUTHORIZED TO ASK THE QUESTION THE
PETITIONER FAILED TO ANSWER. 

THE GENERAL INTENT OF THE ACT WAS TO PREVENT SECRECY AS TO ANY KIND
OF POLITICAL PROPAGANDA ACTIVITY BY FOREIGN AGENTS.  BOTH THE HOUSE AND
SENATE COMMITTEES REPORTING THE BILL UNDER CONSIDERATION DECLARED IT TO
BE THEIR PURPOSE TO TURN "THE SPOTLIGHT OF PITILESS PUBLICITY" UPON THE
PROPAGANDA ACTIVITIES OF THOSE WHO WERE HIRED BY FOREIGN PRINCIPALS. 
APPRECIATING THAT "PROPAGANDA EFFORTS OF SUCH A NATURE ARE USUALLY
CONDUCTED IN SECRECY," THEY WANTED TO MAKE FULL INFORMATION CONCERNING
IT "AVAILABLE TO THE AMERICAN PUBLIC" AND SOUGHT BY "THE PASSAGE OF
THIS BILL" TO "FORCE PROPAGANDA AGENTS REPRESENTING FOREIGN AGENCIES TO
COME OUT 'IN THE OPEN' IN THEIR ACTIVITIES, OR TO SUBJECT THEMSELVES TO
THE PENALTIES PROVIDED IN SAID BILL."  FN1  THEY DECLARED THAT THE
PURPOSE OF THE BILL WAS TO REQUIRE ALL SUCH HIRED AGENTS "TO REGISTER
WITH THE STATE DEPARTMENT AND TO SUPPLY INFORMATION ABOUT THEIR
POLITICAL ACTIVITIES, THEIR EMPLOYERS, AND THE TERMS OF THEIR
CONTRACTS."  FN2    WHAT EMERGED FROM EXTENDED CONGRESSIONAL
INVESTIGATIONS, HEARINGS AND DELIBERATIONS WAS THIS ACT, INTENDED TO
PROVIDE AN APPROPRIATE METHOD TO OBTAIN INFORMATION ESSENTIAL FOR THE
PROPER EVALUATION OF POLITICAL PROPAGANDA EMANATING FROM HIRED AGENTS
OF FOREIGN COUNTRIES.  AS THE HOUSE AND SENATE COMMITTEES CONSIDERING
THE BILL SAID, IT "DOES NOT IN ANY WAY IMPAIR THE RIGHT OF FREEDOM OF
SPEECH, OR OF A FREE PRESS, OR OTHER CONSTITUTIONAL RIGHTS."  RESTING
ON THE FUNDAMENTAL CONSTITUTIONAL PRINCIPLE THAT OUR PEOPLE, ADEQUATELY
INFORMED, MAY BE TRUSTED TO DISTINGUISH BETWEEN THE TRUE AND THE FALSE,
THE BILL IS INTENDED TO LABEL INFORMATION OF FOREIGN ORIGIN SO THAT
HEARERS AND READERS MAY NOT BE DECEIVED BY THE BELIEF THAT THE
INFORMATION COMES FROM A DISINTERESTED SOURCE.  SUCH LEGISLATION
IMPLEMENTS RATHER THAN DETRACTS FROM THE PRIZED FREEDOMS GUARANTEED BY
THE FIRST AMENDMENT.  NO STRAINED INTERPRETATION SHOULD FRUSTRATE ITS
ESSENTIAL PURPOSE. 

DIRECTED TO PRESCRIBE SUCH RULES, REGULATIONS, AND FORMS AS MAY BE
NECESSARY TO CARRY OUT THIS ACT."  CONGRESS DID NOT SET OUT IN THE ACT
THE QUESTIONS TO BE ANSWERED, AND IT SURELY DID NOT INTEND TO ENTRUST
THE SECRETARY WITH NO MORE THAN THE POWER TO COPY THE ACT IN SEEKING
INFORMATION.  SUCH LATITUDE AS HE HAS, THE SECRETARY IMMEDIATELY USED
TO REQUIRE THAT "AGENTS OF FOREIGN PRINCIPALS WHO ENGAGE, WHETHER OR
NOT ON BEHALF OF THEIR FOREIGN PRINCIPAL," IN POLITICAL PROPAGANDA
ACTIVITY SHOULD REGISTER; AND HE ASKED THE REGISTRANTS TO MAKE A
"COMPREHENSIVE STATEMENT OF NATURE OF BUSINESS."  IN VIEW OF THE
GENERAL PURPOSE OF THE ACT, SUCH A QUESTION SEEMS EMINENTLY
REASONABLE.  AS A PRACTICAL MATTER, THE VERY FACT THAT IN THE INSTANT
CASE IT IS EXTREMELY DIFFICULT TO DETERMINE WITH CONVICTION WHICH
ACTIVITIES THE PETITIONER CARRIED ON IN HIS OWN BEHALF AND WHICH HE
CARRIED ON IN BEHALF OF GERMANY IS REASON ENOUGH FOR REQUIRING HIM TO
REPORT ON BOTH.  THE ACT DID NOT CONTEMPLATE THAT A FOREIGN AGENT COULD
EVADE ITS TERMS BY CLAIMING THAT ALL UNREPORTED POLITICAL ACTIVITIES,
UPON THEIR DISCOVERY BY THIS GOVERNMENT, WERE UNDERTAKEN ON HIS OWN
BEHALF.  UNDER THE GENERAL POWER GIVEN THE SECRETARY BY SEC. 6 TO
DETERMINE THE FORM OF QUESTIONS, HE WAS ENTITLED TO ASK SUCH QUESTIONS
AS WOULD MAKE THE ENFORCEMENT OF SEC. 3(C) POSSIBLE.  I THINK THE
SECRETARY WAS AUTHORIZED TO ASK THE QUESTION UNDER CONSIDERATION IN
THIS CASE AND THAT THE ACT REQUIRED THE PETITIONER TO ANSWER IT. 

AS IS POINTED OUT IN THE OPINION OF THE COURT, THE 1942 AMENDMENT TO
THE ACT EXPLICITLY AUTHORIZES THE SECRETARY TO ASK THE QUESTION WHICH
IS INVOLVED IN THE INSTANT CASE.  THE ADDITION OF THIS PROVISION TO THE
ACT, HOWEVER, I CONSIDER PURELY DECLARATORY.  THE 1942 BILL WAS PASSED,
AS SHOWN BY THE SENATE AND HOUSE REPORTS, TO SERVE FOUR MAJOR PURPOSES:
IT REQUIRED THE LABELING OF FOREIGN PROPAGANDA MAILED IN THE UNITED
STATES; TRANSFERRED THE ADMINISTRATION OF THE ACT FROM THE DEPARTMENT
OF STATE TO THE DEPARTMENT OF JUSTICE; EXTENDED THE APPLICATION OF THE
ACT TO CERTAIN PROPAGANDA AFFECTING LATIN AMERICA; AND IMPROVED THE
ENFORCEMENT PROVISIONS.  THE ATTORNEY GENERAL, IN EXPRESSING HIS VIEWS
ON THE BILL, DECLARED THAT THE REGISTRATION PROVISIONS OF THE
AMENDMENT, WHICH INCLUDES SPECIFIC AUTHORIZATION TO ASK THE VERY
QUESTION NOW BEFORE US, WERE "MERELY DECLARATORY."  FN3  IF SO, THE
SECRETARY HAD THE AUTHORITY TO ASK THE SAME QUESTION UNDER THE 1938
ACT. 

THE REVERSAL HERE APPARENTLY DOES NOT REST ON THE CONCLUDING REMARKS
OF COUNSEL FOR THE GOVERNMENT SET FORTH IN THE COURT'S OPINION.  I AM
IN ACCORD WITH THE SENTIMENTS EXPRESSED IN BERGER V. UNITED STATES, 295
U.S. 78, 88, WHICH THE COURT TODAY REPEATS.  IN THAT CASE THE COURT
DECLARED THAT COUNSEL HAD MISSTATED THE FACTS; PUT WORDS INTO THE
MOUTHS OF WITNESSES WHICH THEY HAD NOT SAID; INTIMATED THAT STATEMENTS
HAD BEEN MADE TO HIM PERSONALLY OUT OF COURT IN RESPECT OF WHICH NO
PROOF WAS OFFERED; PRETENDED TO UNDERSTAND THAT A WITNESS HAD SAID
SOMETHING WHICH HE HAD NOT; BULLIED AND ARGUED WITH THE WITNESSES; AND
COMMITTED OTHER OFFENSES.  THIS COURT PROPERLY DECLARED THAT HIS
CONDUCT CALLED FOR STERN REBUKE BY THE TRIAL JUDGE, FOR REPRESSIVE
MEASURES, AND "PERHAPS, IF THESE WERE NOT SUCCESSFUL, FOR THE GRANTING
OF A MISTRIAL." 

A PROSECUTOR MUST DRAW A CAREFUL LINE.  ON THE ONE HAND, HE SHOULD BE
FAIR; HE SHOULD NOT SEEK TO AROUSE PASSION OR ENGENDER PREJUDICE.  ON
THE OTHER HAND, EARNESTNESS OR EVEN A STIRRING ELOQUENCE CANNOT CONVICT
HIM OF HITTING FOUL BLOWS.  FN4 

FN1  SENATE REPORT NO. 1783, HOUSE REPORT NO. 1381, 75TH CONG., 3D
SESS. 

FN2  THE HOUSE COMMITTEE HEARINGS, WHICH ARE AVAILABLE IN MANUSCRIPT
FORM ONLY, SHOW THE SAME BROAD PURPOSE.  IN EXPLAINING THE BILL TO THE
HOUSE COMMITTEE, ITS AUTHOR POINTED OUT THAT IT WAS PARTICULARLY AIMED
AT FIRMS, GROUPS, OR BUSINESSES, USED "AS A MEANS FOR THAT PARTICULAR
COUNTRY OR POLITICAL PARTY TO HIDE ITS IDENTITY" AND THAT THE BILL
COVERED "ALL ACTIVITIES OF ALL KINDS, THAT IS, ALL PROPAGANDA
ACTIVITIES, NO MATTER FROM WHAT SOURCE IT EMANATES."  THE CONGRESSIONAL
COMMITTEE, WHOSE CHAIRMAN WAS THE AUTHOR OF THIS BILL, HAD DISCOVERED
THROUGH HEARINGS, THAT BUSINESS ENTERPRISES HAD BEEN UTILIZED AS A
MEANS FOR PROPAGANDIZING, AND THAT MANY PERSONS INCLUDING THE
PETITIONER HERE HAD PUBLISHED ARTICLES IN VARIOUS MAGAZINES, CONCEALING
THEIR IDENTITY BEHIND PSEUDONYMS.  THE PURPOSE OF THESE ACTIVITIES, THE
COMMITTEE FOUND, HAD BEEN TO INFLUENCE "THE POLICIES, EXTERNAL AND
INTERNAL, OF THIS COUNTRY, THROUGH GROUP ACTION.  THEY WERE EMPLOYING
THE SAME METHOD THAT THEY HAD EMPLOYED IN GERMANY FOR THE PURPOSE OF
OBTAINING CONTROL OF THE GOVERNMENT OVER THERE." 

FN3  SEN. REPORT NO. 913, 77TH CONG., 1ST SESS. 

FN4  "TO SHEAR HIM (THE PROSECUTOR) OF ALL ORATORICAL EMPHASIS, WHILE
LEAVING WIDE LATITUDE TO THE DEFENSE, IS TO LOAD THE SCALES OF JUSTICE;
IT IS TO DENY WHAT HAS ALWAYS BEEN AN ACCEPTED INCIDENT OF JURY TRIALS,
EXCEPT IN THOSE JURISDICTIONS WHERE ANY SERIOUS EXECUTION OF THE
CRIMINAL LAW HAS YIELDED TO A GHOSTLY PHANTOM OF THE INNOCENT MAN
FALSELY CONVICTED."  DI CARLO V. UNITED STATES, 6 F.2D 364, 368. 
..END :














MARSHALL FIELD & CO. V. BOARD, 318 U.S. 253 


NO. 453.  ARGUED FEBRUARY 3, 1943.  - DECIDED MARCH 1, 1943.  - 129 F.2D
169, AFFIRMED. 


1.  BENEFITS RECEIVED UNDER THE ILLINOIS UNEMPLOYMENT COMPENSATION ACT
WERE NOT "EARNINGS" WITHIN THE MEANING OF AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD REQUIRING AN EMPLOYER TO PAY TO CERTAIN
DISCHARGED EMPLOYEES SUMS EQUAL TO WHAT THEY NORMALLY WOULD HAVE
EARNED, LESS THEIR "NET EARNINGS," DURING THE PRESCRIBED PERIOD.  P.
255. 

2.  SINCE IT DOES NOT APPEAR FROM THE RECORD THAT THE QUESTION OF THE
NATIONAL LABOR RELATIONS BOARD'S AUTHORITY TO AWARD BACK PAY WITHOUT
DEDUCTION OF BENEFITS RECEIVED UNDER THE ILLINOIS UNEMPLOYMENT
COMPENSATION ACT WAS, AT ANY STAGE OF THE PROCEEDINGS BEFORE THE BOARD,
PRESENTED TO THE BOARD OR TO ANY MEMBER OR AGENT THEREOF, OR THAT THERE
WERE ANY "EXTRAORDINARY CIRCUMSTANCES" WHICH WOULD EXCUSE SUCH FAILURE,
ITS CONSIDERATION ON REVIEW WAS PRECLUDED BY SEC. 10(E) OF THE NATIONAL
LABOR RELATIONS ACT.  P. 255. 

3.  ASSUMING THAT THE REQUIREMENTS OF SEC. 10(E) MAY WITH THE CONSENT
OF THE COURT BE WAIVED, THE RESERVATION IN THE CONSENT DECREE OF
"JURISDICTION" TO CONSIDER THE QUESTION IN THIS CASE WAS NOT A WAIVER,
BUT LEFT THE MATTER TO BE DETERMINED ACCORDING TO LAW.  P. 256. 

MARSHALL FIELD & CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 317 U.S. 617, TO REVIEW A DECREE ORDERING ENFORCEMENT OF
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 

PER CURIAM. 

IN THIS CASE THE LABOR BOARD ORDERED PETITIONER TO COMPENSATE CERTAIN
OF ITS EMPLOYEES FOR LOSS OF PAY SUFFERED AS A RESULT OF THEIR
DISCRIMINATORY DISCHARGE IN VIOLATION OF THE NATIONAL LABOR RELATIONS
ACT.  PARAGRAPH 2(B) OF THE ORDER DIRECTED THAT PETITIONER "MAKE WHOLE"
THE EMPLOYEES BY PAYMENT TO THEM OF A SUM "EQUAL TO THAT WHICH THEY
WOULD NORMALLY HAVE EARNED AS WAGES" DURING THE SPECIFIED PERIOD, LESS
THEIR "NET EARNINGS" DURING THE PERIOD (34 N.L.R.B. 1, 21).  ON CONSENT
OF THE PARTIES, THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT
ENFORCED THE OTHER PROVISIONS OF THE BOARD'S ORDER, AND RESERVED
"JURISDICTION" TO DETERMINE WHETHER PARAGRAPH 2(B) PERMITTED PETITIONER
TO DEDUCT BENEFITS RECEIVED BY THE EMPLOYEES UNDER THE ILLINOIS
UNEMPLOYMENT COMPENSATION ACT, AND, IF NOT, WHETHER TO THAT EXTENT THE
ORDER WAS WITHIN THE POWER OF THE BOARD.  ON CONSIDERATION OF THE
QUESTIONS RESERVED, THE COURT CONSTRUED THE ORDER AS NOT PERMITTING
SUCH A DEDUCTION, AND HELD THAT SO CONSTRUED IT WAS WITHIN THE BOARD'S
AUTHORITY.  129 F.2D 169.  AN APPROPRIATE ENFORCEMENT DECREE WAS
ENTERED, AND WE GRANTED CERTIORARI.  317 U.S. 617. 

WE AGREE WITH THE COURT BELOW THAT THE BENEFITS RECEIVED UNDER THE
STATE COMPENSATION ACT WERE PLAINLY NOT "EARNINGS" WHICH, UNDER THE
TERMS OF THE BOARD'S ORDER, COULD BE DEDUCTED FROM THE BACK PAY
AWARDED.  AND UPON EXAMINATION OF THE RECORD WE THINK THE BOARD'S ORDER
SHOULD BE ENFORCED WITHOUT CONSIDERING THE QUESTION WHETHER SUCH A
PROVISION IS WITHIN THE BOARD'S AUTHORITY. 

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."  WE DO NOT FIND THAT, AT ANY STAGE OF THE
PROCEEDINGS BEFORE THE BOARD, THE OBJECTION NOW URGED AS TO THE BOARD'S
LACK OF POWER WAS PRESENTED TO IT OR TO ANY MEMBER OR AGENT OF THE
BOARD, OR THAT THERE ARE ANY "EXTRAORDINARY CIRCUMSTANCES" WHICH WOULD
EXCUSE SUCH FAILURE. 

PARAGRAPH 2(B) OF THE BOARD'S ORDER IS IN SUBSTANCE THE
RECOMMENDATION OF THE INTERMEDIATE REPORT OF THE TRIAL EXAMINER.  YET
PETITIONER'S ONLY OBJECTION TO THIS PART OF THE EXAMINER'S REPORT WAS
THAT THE EXAMINER HAD ERRED "IN MAKING EACH AND EVERY RECOMMENDATION." 
SUCH A GENERAL OBJECTION DID NOT APPRISE THE BOARD THAT PETITIONER
INTENDED TO PRESS THE QUESTION NOW PRESENTED, AND MAY WELL ACCOUNT FOR
THE BOARD'S FAILURE TO CONSIDER THIS QUESTION IN ITS DECISION AND TO
MAKE FINDINGS WITH RESPECT TO IT. 

THE PRESENT CASE GIVES EMPHASIS TO THE SALUTARY POLICY ADOPTED BY
SEC. 10(E) OF AFFORDING THE BOARD OPPORTUNITY TO CONSIDER ON THE MERITS
QUESTIONS TO BE URGED UPON REVIEW OF ITS ORDER.  IN OBJECTING TO
PARAGRAPH 2(B) FOR ITS WANT OF SUPPORT IN THE BOARD'S FINDINGS,
PETITIONER CONTENDS THAT THE ILLINOIS UNEMPLOYMENT COMPENSATION FUND IS
IN SUBSTANCE AN UNEMPLOYMENT INSURANCE FUND BUILT UP WHOLLY FROM TAX
CONTRIBUTIONS BY EMPLOYERS; THAT THE BENEFITS RECEIVED FROM THE FUND BY
THE EMPLOYEES CANNOT UNDER STATE LAW BE RECLAIMED OR REFUNDED; AND THAT
THE ELIGIBILITY OF THESE EMPLOYEES FOR FUTURE BENEFITS FROM THE FUND
HAS NOT BEEN IMPAIRED BECAUSE OF THE BENEFITS ALREADY PAID TO THEM. 
FINDINGS WITH RESPECT TO THESE CONTENTIONS ARE AN APPROPRIATE IF NOT
INDISPENSABLE BASIS FOR JUDICIAL REVIEW OF THE QUESTION SOUGHT TO BE
RAISED.  WE THINK SEC. 10(E) MAKES ITS PRESENTATION TO THE BOARD A
PREREQUISITE TO JUDICIAL REVIEW. 

THE RESERVATION IN THE CONSENT DECREE OF "JURISDICTION" TO CONSIDER
THIS OBJECTION WAS NOT A WAIVER BY THE BOARD OR THE COURT OF CONFORMITY
TO THE REQUIREMENTS OF SEC. 10(E).  ASSUMING THAT SUCH A WAIVER MIGHT
BE MADE WITH THE ASSENT OF THE COURT, WE CANNOT READ IN THE CONSENT
DECREE ANYTHING MORE THAN A RESERVATION OF THE COURT'S JURISDICTION TO
DECIDE THE QUESTION ACCORDING TO LAW. 

FOR THE REASON THAT THE RECORD DOES NOT SHOW COMPLIANCE WITH SEC.
10(E) WITH RESPECT TO THE QUESTION RAISED AS TO THE BOARD'S AUTHORITY,
THE DECREE IS AFFIRMED. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










WELLS V. UNITED STATES, 318 U.S. 257 


NO. 11, ORIGINAL.  ARGUED FEBRUARY 10, 1943.  - DECIDED MARCH 1, 1943. 
AFFIRMED. 


1.  EVEN THOUGH, IN THE LIGHT OF ALL THE CIRCUMSTANCES, THE CIRCUIT
COURT OF APPEALS IN THIS CASE COULD HAVE ALLOWED AN APPEAL IN FORMA
PAUPERIS TO REVIEW THE ADEQUACY OF THE DISTRICT COURT'S CERTIFICATE
(PURSUANT TO THE ACT OF JUNE 25, 1910, AS AMENDED) THAT THE APPEAL WAS
NOT TAKEN IN GOOD FAITH, IT DOES NOT APPEAR THAT AN APPEAL WAS SOUGHT
ON THAT GROUND OR THAT THERE IS ANYTHING OF RECORD TO SUPPORT SUCH AN
APPEAL, AND THE ORDER OF THE CIRCUIT COURT OF APPEALS DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS IS THEREFORE AFFIRMED.  P. 260. 

2.  WHAT EFFECT SHOULD BE GIVEN TO A CERTIFICATE OF BAD FAITH IN A
CASE WHERE THE JURISDICTION OF THE CIRCUIT COURT OF APPEALS ATTACHES
UPON THE MERE FILING OF A NOTICE OF APPEAL, INDEPENDENTLY OF ANY
APPLICATION FOR LEAVE TO APPEAL IN FORMA PAUPERIS, IS NOT HERE
DECIDED.  P. 260. 

WELLS V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 317 U.S. 616, TO REVIEW AN ORDER OF THE CIRCUIT COURT OF
APPEALS DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. 

PER CURIAM. 

IN 1938 PETITIONER, IN THE WESTERN DISTRICT OF TEXAS, PLEADED GUILTY
TO AN INDICTMENT IN FOUR COUNTS CHARGING HIM WITH VIOLATION OF THE BANK
ROBBERY ACT, 12 U.S.C. SEC. 588B, AND WAS SENTENCED TO CONSECUTIVE
TERMS OF IMPRISONMENT AGGREGATING 90 YEARS.  ON MAY 6, 1942, THE TRIAL
COURT, AFTER PETITIONER'S SUCCESSFUL APPEAL TO THE CIRCUIT COURT OF
APPEALS, 124 F.2D 334, GRANTED HIS MOTION FOR RESENTENCE AND SENTENCED
HIM ON TWO OF THE COUNTS ON WHICH HE HAD BEEN CONVICTED, FOR
CONSECUTIVE TERMS AGGREGATING 45 YEARS.  ON THE SAME DAY HE BEGAN THE
PRESENT PROCEEDING BY A PETITION IN THE TRIAL COURT TO SET ASIDE HIS
CONVICTION ON THE GROUND THAT HIS PLEA OF GUILTY HAD BEEN INDUCED BY
THREATS AND FALSE STATEMENTS ON THE PART OF GOVERNMENT OFFICERS HAVING
HIM IN CUSTODY, AND THAT ON ENTERING HIS PLEA OF GUILTY HE HAD BEEN
DENIED THE BENEFIT OF COUNSEL. 

THE DISTRICT COURT DENIED THE PETITION ON MAY 7, WITHOUT CALLING FOR
A RESPONSE FROM THE GOVERNMENT, WITHOUT MAKING FINDINGS OR WRITING AN
OPINION, AND APPARENTLY WITHOUT HOLDING A HEARING.  ITS ORDER RECITED
THAT THE COURT "IS OF THE OPINION THAT SAID PETITION IS WHOLLY
INSUFFICIENT AS A MATTER OF LAW; THAT THE MATTERS AND THINGS THEREIN
CONTAINED HAVE HERETOFORE BEEN ADJUDICATED AND THAT SAID PETITION
SHOULD IN ALL THINGS BE DENIED." 

ON MAY 28 PETITIONER MOVED IN THE DISTRICT COURT THAT HE BE ALLOWED
TO APPEAL IN FORMA PAUPERIS.  THE COURT DENIED THE MOTION, AND
CERTIFIED THAT "IN THE OPINION OF THE COURT SUCH AN APPEAL IS NOT TAKEN
IN GOOD FAITH." 

PETITIONER LATER PRESENTED TO THE CIRCUIT COURT OF APPEALS FOR THE
FIFTH CIRCUIT AN APPLICATION FOR ALLOWANCE OF AN APPEAL IN FORMA
PAUPERIS, WHICH WAS LIKEWISE DENIED.  THAT ORDER DOES NOT SET FORTH THE
GROUND ON WHICH THE DENIAL WAS RESTED, BUT AN EARLIER OPINION, IN RE
WRAGG, 95 F.2D 252, 253, STATES THE COURT'S VIEW THAT IT IS WITHOUT
POWER TO ALLOW AN APPEAL IN FORMA PAUPERIS WHEN THE TRIAL COURT HAS
CERTIFIED THAT THE APPEAL IS NOT TAKEN IN GOOD FAITH.  WE GRANTED
CERTIORARI TO THE CIRCUIT COURT OF APPEALS UPON A TIMELY PETITION WHICH
ASKED THAT THE WRIT BE ISSUED TO THAT COURT AND TO THE DISTRICT COURT. 
317 U.S. 616. 

THE GOVERNMENT ADMITS THAT THE ALLEGATIONS IN THE PETITION TO SET
ASIDE THE CONVICTION RAISE AN ISSUE AS TO THE CONSTITUTIONAL VALIDITY
OF THE JUDGMENT OF CONVICTION WHICH COULD BE TRIED ON HABEAS CORPUS
(SEE WALEY V. JOHNSTON, 316 U.S. 101).  BUT IT DENIES THAT THE COURT OF
APPEALS HAD JURISDICTION TO PASS UPON THE POINT IN THIS PROCEEDING FOR
THE REASON, AMONG OTHERS, THAT CONSIDERATION OF THE MERITS OF THE
APPEAL BY ANY APPELLATE COURT WAS FORECLOSED BY THE DISTRICT COURT'S
CERTIFICATION THAT THE APPEAL WAS NOT IN GOOD FAITH. 

THE ACT OF JUNE 25, 1910, 36 STAT. 866, AS AMENDED, 28 U.S.C. SEC.
832, PROVIDES THAT ANY CITIZEN, UPON FILING AN AFFIDAVIT OF POVERTY,
"MAY, UPON THE ORDER OF THE COURT, COMMENCE AND PROSECUTE OR DEFEND TO
CONCLUSION ANY SUIT OR ACTION, OR AN APPEAL TO THE CIRCUIT COURT OF
APPEALS, OR TO THE SUPREME COURT IN SUCH SUIT OR ACTION, INCLUDING ALL
APPELLATE PROCEEDINGS, UNLESS THE TRIAL COURT SHALL CERTIFY IN WRITING
THAT IN THE OPINION OF THE COURT SUCH APPEAL IS NOT TAKEN IN GOOD
FAITH, WITHOUT BEING REQUIRED TO PREPAY FEES OR COSTS  ...  "  THE
GOVERNMENT ARGUES THAT, UNDER THE ACT OF 1910, WHEN THE TRIAL COURT
CERTIFIES THAT THE APPEAL IS NOT TAKEN IN GOOD FAITH, THE ACTION OF THE
JUDGE IN ISSUING THE CERTIFICATE IS FINAL, AND NOT REVIEWABLE ON
APPEAL. 

FOR PURPOSES OF THIS CASE, WE SHALL ASSUME, AS PETITIONER CONTENDS,
THAT THE ACT OF 1910 DOES NOT FORECLOSE ALL APPELLATE REVIEW IN FORMA
PAUPERIS WHEN THE TRIAL COURT HAS CERTIFIED ITS OPINION THAT THE APPEAL
IS NOT TAKEN IN GOOD FAITH.  BUT WE THINK THAT WHERE, AS IN THIS CASE,
LEAVE IS NECESSARY TO PERFECT THE APPEAL, THE CERTIFICATION MUST BE
GIVEN EFFECT AT LEAST TO THE EXTENT OF BEING ACCEPTED BY APPELLATE
COURTS AS CONTROLLING IN THE ABSENCE OF SOME SHOWING THAT THE
CERTIFICATE IS MADE WITHOUT WARRANT OR NOT IN GOOD FAITH. 

NEITHER FROM THE RECORD NOR FROM PETITIONER'S APPLICATION TO THE
CIRCUIT COURT OF APPEALS, WHICH HE HAS FILED IN THIS COURT, DOES IT
APPEAR THAT HE ATTACKED THE SUFFICIENCY OF THE DISTRICT COURT'S
CERTIFICATE UPON THESE OR ANY OTHER GROUNDS.  NOR CAN WE SAY THAT THERE
IS WANT OF SUPPORT FOR THE DISTRICT COURT'S RECITAL IN ITS ORDER THAT
"THE MATTERS AND THINGS" CONTAINED IN THE APPLICATION TO SET ASIDE THE
CONVICTION "HAVE HERETOFORE BEEN ADJUDICATED."  FOR THE GOVERNMENT'S
BRIEF POINTS OUT THAT PETITIONER, BEFORE HIS APPLICATION TO THE
DISTRICT COURT IN THIS PROCEEDING, HAD UNSUCCESSFULLY SOUGHT RELEASE
FROM CUSTODY IN TWO HABEAS CORPUS PROCEEDINGS, OF WHICH THE FEDERAL
COURTS MAY TAKE JUDICIAL NOTICE, BOTH BROUGHT IN THE NORTHERN DISTRICT
OF CALIFORNIA.  IN THE SECOND, THERE WAS A HEARING IN WHICH HE
TESTIFIED IN HIS OWN BEHALF; OTHER EVIDENCE WAS TAKEN BOTH ORAL AND
DOCUMENTARY, AND THE COURT MADE FINDINGS OF FACT CONTRARY TO THE
ALLEGATIONS OF FACT ON WHICH PETITIONER NOW RELIES.  WE CANNOT SAY THAT
THE DISTRICT COURT IN THIS CASE WAS UNFAMILIAR WITH THOSE PROCEEDINGS,
MERELY BECAUSE THEY DO NOT APPEAR IN THE RECORD BEFORE US. 

EVEN THOUGH THE CIRCUIT COURT OF APPEALS COULD ALLOW AN APPEAL IN
FORMA PAUPERIS TO REVIEW, IN THE LIGHT OF ALL THE CIRCUMSTANCES, THE
ADEQUACY OF THE DISTRICT COURT'S CERTIFICATE, IT DOES NOT APPEAR THAT
APPEAL WAS SOUGHT ON THAT GROUND OR THAT THERE IS ANYTHING OF RECORD TO
SUPPORT SUCH AN APPEAL.  THE CIRCUIT COURT OF APPEALS' ORDER DENYING
LEAVE TO APPEAL IN FORMA PAUPERIS MUST THEREFORE BE AFFIRMED. 

APART FROM THE IN FORMA PAUPERIS STATUTE, PETITIONER'S APPEAL TO THE
CIRCUIT COURT OF APPEALS FROM THE ORDER DENYING HIS APPLICATION TO
VACATE THE CONVICTION WAS GOVERNED NOT BY RULE III OF THE RULES IN
CRIMINAL CASES, BUT BY SEC. 8(C) OF THE ACT OF FEBRUARY 13, 1925, 28
U.S.C. SEC. 230, WHICH REQUIRES THAT PROPER APPLICATION BE MADE FOR THE
ALLOWANCE OF AN APPEAL.  UNITED STATES EX REL. COY V. UNITED STATES,
316 U.S. 342, 344; NYE V. UNITED STATES, 313 U.S. 33, 44.  WE HAVE NO
OCCASION TO DECIDE NOW WHAT EFFECT SHOULD BE GIVEN TO A CERTIFICATE OF
BAD FAITH IN A CASE WHERE THE JURISDICTION OF THE CIRCUIT COURT OF
APPEALS ATTACHES UPON THE MERE FILING OF A NOTICE OF APPEAL,
INDEPENDENTLY OF ANY APPLICATION FOR LEAVE TO APPEAL IN FORMA
PAUPERIS.  CF. WALLECK V. HUDSPETH, 128 F.2D 343.  AFFIRMED. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :























PENN DAIRIES V. MILK CONTROL COMM'N, 318 U.S. 261 


NO. 399.  ARGUED JANUARY 13, 1943.  - DECIDED MARCH 1, 1943.  - 344 PA.
635, 26 A.2D 431, AFFIRMED. 


1.  PURSUANT TO THE PENNSYLVANIA MILK CONTROL LAW, A RENEWAL OF THE
LICENSE OF A MILK DEALER WAS REFUSED BY THE MILK CONTROL COMMISSION
BECAUSE THE DEALER, IN VIOLATION OF THE STATE LAW, HAD SOLD MILK TO THE
UNITED STATES AT PRICES BELOW THE MINIMA FIXED BY THE COMMISSION.  THE
SALES AND DELIVERIES WERE MADE WITHIN THE STATE, UNDER A CONTRACT
AWARDED THE DEALER, AS THE LOWEST BIDDER, FOR SUPPLYING MILK FOR
CONSUMPTION BY TROOPS AT AN ARMY CAMP ESTABLISHED BY THE UNITED STATES,
ON LAND BELONGING TO THE STATE, UNDER A PERMIT WHICH INVOLVED NO
SURRENDER OF THE STATE'S JURISDICTION OR AUTHORITY OVER THE AREA.  HELD
THAT SUCH APPLICATION OF THE STATE LAW TO THE DEALER IN THESE
CIRCUMSTANCES WAS NOT PRECLUDED BY THE CONSTITUTION OR LAWS OF THE
UNITED STATES.  PP. 271, 278. 

CONGRESSIONAL LEGISLATION, EITHER AS READ IN THE LIGHT OF ITS HISTORY
OR AS CONSTRUED BY THE EXECUTIVE OFFICERS CHARGED WITH THE EXERCISE OF
THE CONTRACTING POWER, DOES NOT DISCLOSE A PURPOSE TO IMMUNIZE
GOVERNMENT CONTRACTORS FROM LOCAL PRICE-FIXING REGULATIONS; NOR, IN THE
CIRCUMSTANCES OF THIS CASE, DOES THE CONSTITUTION, UNAIDED BY
CONGRESSIONAL ENACTMENT, CONFER SUCH IMMUNITY. 

2.  THOSE WHO CONTRACT TO FURNISH SUPPLIES OR RENDER SERVICES TO THE
GOVERNMENT ARE NOT FEDERAL AGENCIES AND DO NOT PERFORM GOVERNMENTAL
FUNCTIONS; AND THE MERE FACT THAT NON-DISCRIMINATORY TAXATION OR
REGULATION OF THE CONTRACTOR IMPOSES AN INCREASED ECONOMIC BURDEN ON
THE GOVERNMENT IS NO LONGER REGARDED AS BRINGING THE CONTRACTOR WITHIN
ANY IMPLIED IMMUNITY OF THE GOVERNMENT FROM STATE TAXATION OR
REGULATION.  P. 269. 

3.  SINCE THE CONSTITUTION HAS LEFT CONGRESS FREE TO SET ASIDE LOCAL
TAXATION AND REGULATION OF GOVERNMENT CONTRACTORS, THERE IS NO BASIS
FOR IMPLYING FROM THE CONSTITUTION ALONE A RESTRICTION UPON SUCH
REGULATIONS WHICH CONGRESS HAS NOT SEEN FIT TO IMPOSE, UNLESS THE
REGULATIONS ARE SHOWN TO BE INCONSISTENT WITH CONGRESSIONAL POLICY.  P.
271. 

4.  THE LANGUAGE AND LEGISLATIVE HISTORY OF THE ACTS OF CONGRESS
REQUIRING COMPETITIVE BIDDING IN THE PURCHASE OF SUPPLIES FOR THE ARMY,
AND OF RELATED STATUTES REGULATING GOVERNMENT CONTRACTS, DO NOT
EVIDENCE A PURPOSE TO SET ASIDE LOCAL PRICE REGULATIONS OR TO PROHIBIT
THE STATES FROM TAKING PUNITIVE MEASURES AGAINST VIOLATORS OF SUCH
REGULATIONS.  P. 272. 

5.  AN UNEXPRESSED PURPOSE OF CONGRESS TO SET ASIDE STATUTES OF THE
STATES REGULATING THEIR INTERNAL AFFAIRS IS NOT LIGHTLY TO BE INFERRED
AND OUGHT NOT TO BE IMPLIED WHERE THE LEGISLATIVE COMMAND, READ IN THE
LIGHT OF ITS HISTORY, REMAINS AMBIGUOUS.  P. 275. 

6.  THE SAME CONSIDERATIONS WHICH SUSTAIN THE RULE AGAINST STATUTORY
REPEALS BY IMPLICATION APPLY AS WELL WHEN THE QUESTION IS ONE OF
NULLIFICATION OF STATE POWER BY CONGRESSIONAL LEGISLATION.  P. 275. 

7.  ASSUMING THAT THE SECRETARY OF WAR COULD BY REGULATION SET ASIDE
THE STATE'S PRICE LEGISLATION WHICH IT HAS MADE APPLICABLE TO
GOVERNMENT CONTRACTORS, IT APPEARS PLAINLY FROM A CONSIDERATION OF
PERTINENT REGULATIONS THAT HE HAS NOT DONE SO.  P. 278. 

PENN DAIRIES, INC., ET AL. V. MILK CONTROL COMMISSION OF
PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT, 148 PA. SUPER.  261, 24
A.2D 717, SUSTAINING AN ORDER OF THE MILK CONTROL COMMISSION DENYING AN
APPLICATION FOR RENEWAL OF A LICENSE. 

THE UNITED STATES IS IMMUNE FROM STATE REGULATION OF THE PRICE TERM
OF ITS PURCHASE CONTRACTS.  WHEN THE DUAL SYSTEM OF GOVERNMENT RESULTS
IN CONFLICT BETWEEN STATE REGULATION AND FEDERAL ACTIVITIES, THE FORMER
MUST YIELD UNDER THE SUPREMACY CLAUSE OF ARTICLE VI. MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, 427. 

THE STATUTE AND ORDER ARE EQUIVALENT TO A DIRECTION TO THE UNITED
STATES NOT TO PURCHASE MILK IN PENNSYLVANIA AT PRICES BELOW THOSE
SPECIFIED BY STATE AUTHORITIES. 

THOUGH THE ENFORCEMENT PROVISIONS OF THE STATUTE ARE AIMED
EXCLUSIVELY AT THE SELLER, THE IMPACT OF THE REGULATION IS UPON THE
PURCHASER.  CF. FEDERAL LAND BANK V. BISMARCK CO., 314 U.S. 95; ALABAMA
V. KING & BOOZER, 314 U.S. 1. 

SO VITAL A FEDERAL FUNCTION AS THE PURCHASE OF SUPPLIES FOR THE ARMED
FORCES IS WITHIN THE CONSTITUTIONAL IMMUNITY.  JOHNSON V. MARYLAND, 254
U.S. 51, 56. 

WHATEVER MAY BE THE PROPRIETY OF THE TEST OF DISCRIMINATION IN
DETERMINING THE VALIDITY OF STATE TAX LAWS APPLIED TO PERSONS DEALING
WITH THE UNITED STATES, THE TEST HAS NO APPLICATION TO SUSTAIN THE
VALIDITY OF A DIRECT REGULATION OF THE ACTIVITIES OF THE UNITED STATES
ITSELF. 

THE CONSTITUTION REFLECTS THE DETERMINATION OF THE FOUNDERS THAT THE
PROCUREMENT OF SUPPLIES FOR THE ARMY IS A MATTER OF NATIONAL CONCERN,
TO BE REGULATED BY THE ELECTED OR APPOINTED REPRESENTATIVES OF ALL THE
PEOPLE AND NOT CONTROLLED BY SINGLE STATES IN THEIR LOCAL INTERESTS. 
IT VESTS THE POWER "TO RAISE AND SUPPORT ARMIES" IN CONGRESS AND NOT IN
THE STATES.  CONST., ART. I, SEC. 8, CL. 11. 

WHERE THE LEGAL INCIDENCE OF THE STATE REGULATION IS ON THE UNITED
STATES BECAUSE THE STATE LAW ITSELF FIXES FOR LOCAL ECONOMIC REASONS
THE TERMS ON WHICH THE UNITED STATES MAY COME INTO THE STATE AND
PURCHASE ARMY SUPPLIES FROM ITS CITIZENS, THEN THE STATE LAW PASSES
BEYOND THE LINE OF LOCAL AFFAIRS AND BECOMES A DIRECT REGULATION OF THE
UNITED STATES AND OF THE SUPPORT OF THE ARMY. 

THE DECISIONS OF THIS COURT CONCERNING INTERGOVERNMENTAL TAX IMMUNITY
ALSO SHOW THAT THE PRICE REGULATION IS INVALID BECAUSE ITS INCIDENCE IS
ON THE UNITED STATES. 

THE PRICE REGULATION HERE INVOLVED DOES NOT REST EXCLUSIVELY UPON THE
CONTRACTOR, AS DID THE SALES TAX WHICH WAS UPHELD IN ALABAMA V. KING &
BOOZER, 314 U.S. 1.  THE REGULATION IMPINGES UPON THE FEDERAL
GOVERNMENT AS FULLY AND DIRECTLY AS DID THE SALES TAX INVALIDATED IN
FEDERAL LAND BANK V. BISMARCK CO., 314 U.S. 95, WHICH WAS REQUIRED BY
LAW TO BE PASSED ON TO THE PURCHASING LAND BANK. 

CONGRESS HAS REGULATED FEDERAL PURCHASES IN A WAY ESSENTIALLY
INCONSISTENT WITH THE PENNSYLVANIA PRICE REGULATION.  THE POLICY OF THE
FEDERAL COMPETITIVE BIDDING STATUTES, AND THE PURCHASING PROCEDURE
ADOPTED UNDER THE AUTHORIZATION OF TITLE II OF THE FIRST WAR POWERS
ACT, 1941, 55 STAT. 838, CANNOT BE HARMONIZED WITH THE APPLICATION OF
THE PENNSYLVANIA LAW TO FEDERAL PURCHASES.  SINCE CONGRESS UNDOUBTEDLY
HAS POWER TO REGULATE THE SUBJECT, THE INCONSISTENT STATE REGULATION
MUST YIELD.  CONST., ART. VI; NORTHERN SECURITIES CO. V. UNITED STATES,
193 U.S. 197; FLORIDA V. MELLON, 273 U.S. 12.  CF. CLOVERLEAF BUTTER
CO. V. PATTERSON, 315 U.S. 148. 

IF MINIMUM PRICES ESTABLISHED UNDER STATE AUTHORITY BIND BIDDERS FOR
GOVERNMENT CONTRACTS, THERE WILL BE NO "LOWEST RESPONSIBLE BIDDER," FOR
WHERE THE MINIMUM FIXED BY STATE LAW IS ABOVE THE ECONOMIC MINIMUM,
SEVERAL BIDDERS WILL QUOTE THE FIXED PRICE.  THUS, THE UNITED STATES
WILL BE DENIED THE FULL BENEFIT OF PRICE COMPETITION. 

WHILE THE NECESSITIES OF WAR HAVE COMPELLED SOME RELAXATION OF THE
COMPETITIVE BIDDING REQUIREMENTS FOR PUBLIC PROCUREMENT, THE
PENNSYLVANIA PRICE REGULATION ALSO CONFLICTS WITH THE EMERGENCY METHODS
OF PURCHASE.  TITLE II OF THE FIRST WAR POWERS ACT, 1941, 55 STAT. 838,
EMPOWERS THE PRESIDENT TO AUTHORIZE GOVERNMENT AGENCIES EXERCISING
FUNCTIONS RELATED TO THE WAR EFFORT "TO ENTER INTO CONTRACTS  ...
WITHOUT REGARD TO THE PROVISIONS OF LAW RELATING TO THE MAKING  ... OF
CONTRACTS."  BY EXECUTIVE ORDER NO. 9001 OF DECEMBER 27, 1941(6 F.R.
6787), THE PRESIDENT AUTHORIZED THE WAR AND NAVY DEPARTMENTS AND THE
UNITED STATES MARITIME COMMISSION TO EXERCISE SUCH POWERS, AND PROVIDED
THAT, IN THE ABSENCE OF ANY OTHER LIMITATION FIXED BY LAW, "THE FIXED
FEE TO BE PAID THE CONTRACTOR AS A RESULT OF ANY COST-PLUS-A-FIXED-FEE
CONTRACT ENTERED INTO UNDER THE AUTHORITY OF THIS ORDER SHALL NOT
EXCEED SEVEN PER CENTUM OF THE ESTIMATED COST OF THE CONTRACT ...  "
TIT. II, SEC. 7.  A MINIMUM PRICE TO BE CHARGED UNIFORMLY BY ALL
DISTRIBUTORS, REGARDLESS OF THEIR INDIVIDUAL COSTS, MAY OF COURSE BE
MORE THAN THE "COST PLUS A FIXED FEE" ENVISAGED BY THE EXECUTIVE
ORDER. 

WHEN THE GOVERNMENT ENTERS INTO A CONTRACT, IT GENERALLY HAS THE SAME
RIGHTS AND OBLIGATIONS AS INDIVIDUALS.  COOKE V. UNITED STATES, 91 U.S.
389; CHRISTIE V. UNITED STATES, 237 U.S. 234; UNITED STATES V. SPEARIN,
248 U.S. 132; UNITED STATES V. ATLANTIC DREDGING CO., 253 U.S. 1;
UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S. 289; E.E. NAYLOR,
LIABILITY OF THE UNITED STATES GOVERNMENT IN CONTRACT, 14 TULANE LAW
REVIEW 580, 584(1940).  KEMP V. UNITED STATES, 38 F.SUPP.  568, 570. 

THE IMMUNITY OF THE UNITED STATES AND ITS AGENTS DOES NOT EXTEND TO
THOSE WITH WHOM IT CONTRACTS TO FURNISH MATERIAL OR TO RENDER
SERVICES.  JAMES STEWART & CO. V. SADRAKULA, 309 U.S. 94, 105; JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 134, 152. 

IF THE RESULT OF SUCH CONTRACTS IS TO INDUCE CUT-THROAT COMPETITION
AMONG MILK DEALERS COMPETING FOR THE FEDERAL BUSINESS, THE FINAL RESULT
MAY WELL BE THAT ALL BUT A FEW DEALERS WILL BE DRIVEN OUT OF BUSINESS. 

THAT THE GOVERNMENT MAY HAVE TO PAY MORE THAN IT WOULD UNDER THE
CONTRACT IS NOT SUCH A BURDEN UPON THE GOVERNMENT THAT THE CONTRACTOR
IS EXCUSED FROM OBEYING THE ORDER.  JAMES V. DRAVO CONTRACTING CO., 302
U.S. 134. 

INDIANTOWN GAP MILITARY RESERVATION, ALTHOUGH NOW BEING USED BY THE
UNITED STATES GOVERNMENT, IS SUBJECT TO THE JURISDICTION OF
PENNSYLVANIA.  NO LAW, SALE OR LEASE FROM PENNSYLVANIA HAS CONVEYED
EXCLUSIVE JURISDICTION TO THE UNITED STATES.  NO ACT OF CONGRESS HAS
TAKEN AWAY FROM PENNSYLVANIA THE RIGHT TO ENFORCE THE MILK CONTROL
LAW.  SEE JAMES STEWART & CO. V. SADRAKULA, 309 U.S. 94. 

ENFORCEMENT OF THE COMMISSION'S MINIMUM PRICE ORDER DOES NOT CONFLICT
WITH FEDERAL STATUTES REQUIRING COMPETITIVE BIDDING. 

THE UNITED STATES IS REQUIRED TO LET CONTRACTS TO THE LOWEST
RESPONSIBLE BIDDERS.  A CONTRACTOR WHO DOES NOT COMPLY WITH STATE LAWS
TO WHICH HE IS SUBJECT SHOULD NOT BE CONSIDERED A "RESPONSIBLE
BIDDER." 

THE UNITED STATES HAS NOT EXERCISED ANY WAR OR EMERGENCY POWER THAT
WOULD OUST THE STATE COMMISSION OF AUTHORITY TO REGULATE THE
APPELLANT.  CONGRESS HAS NOT ATTEMPTED TO MAKE REGULATIONS CONCERNING
THE PRODUCTION, PROCESSING, BOTTLING AND DISTRIBUTION OF MILK IN AND
ABOUT ITS RESERVATIONS, AND THE POWER TO MAKE SUCH REGULATIONS REMAINS
WITH THE STATES.  SEE UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S.
289. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

DECISION OF THIS CASE TURNS ON THE QUESTION WHETHER THE MINIMUM PRICE
REGULATIONS OF THE PENNSYLVANIA MILK CONTROL LAW OF APRIL 28, 1937,
P.L. 417, PURDON'S PA. STAT. ANN., TIT. 31, SEC. 700J, MAY
CONSTITUTIONALLY BE APPLIED TO THE SALE OF MILK BY A DEALER TO THE
UNITED STATES, THE SALE BEING CONSUMMATED WITHIN THE TERRITORIAL LIMITS
OF THE STATE IN A PLACE SUBJECT TO ITS JURISDICTION. 

THE PENNSYLVANIA MILK CONTROL LAW ESTABLISHES A MILK CONTROL
COMMISSION, SEC. 201, WITH AUTHORITY TO FIX PRICES FOR MILK SOLD WITHIN
THE STATE WHEREVER PRODUCED, SECS. 801-803, INCLUDING MINIMUM WHOLESALE
AND RETAIL PRICES FOR MILK SOLD BY MILK DEALERS TO CONSUMERS, SEC. 802,
AND TO ISSUE RULES, REGULATIONS AND ORDERS TO EFFECTUATE THIS
AUTHORITY, SEC. 307. 

IN THE FALL OF 1940 THE UNITED STATES ESTABLISHED, UNDER A PERMIT
FROM THE COMMONWEALTH OF PENNSYLVANIA, A MILITARY ENCAMPMENT ON LANDS
BELONGING TO THE COMMONWEALTH.  AS IS CONCEDED, THE PERMIT INVOLVED NO
SURRENDER OF STATE JURISDICTION OR AUTHORITY OVER THE AREA OCCUPIED BY
THE CAMP.  ON FEBRUARY 1, 1941, THE PURCHASING AND CONTRACTING OFFICER
AT THE ENCAMPMENT, AN OFFICER OF THE QUARTERMASTER CORPS OF THE UNITED
STATES ARMY, INVITED BIDS FOR A SUPPLY OF MILK FOR THE PERIOD FROM
MARCH 1 TO JUNE 30, 1941, FOR CONSUMPTION BY TROOPS STATIONED AT THE
CAMP.  ON FEBRUARY 4, THE MILK CONTROL COMMISSION SENT A NOTICE TO
INTERESTED PARTIES, INCLUDING APPELLANT, PENN DAIRIES, INC., A
PENNSYLVANIA CORPORATION, ADDRESSED TO "ALL MILK DEALERS INTERESTED IN
SUBMITTING BIDS TO FURNISH MILK TO THE UNITED STATES GOVERNMENT" AT THE
ENCAMPMENT.  THE NOTICE WAS ACCOMPANIED BY THE COMMISSION'S OFFICIAL
GENERAL ORDER NO. A-14, SEC. 4-B OF WHICH PRESCRIBED THE "MINIMUM
WHOLESALE PRICES TO BE CHARGED BY OR PAID TO MILK DEALERS."  THE NOTICE
ANNOUNCED THAT THE UNIT PRICES SPECIFIED FOR SALES TO INSTITUTIONS BY
THAT SECTION OF THE ORDER SHOULD BE CONSIDERED IN THE PREPARATION OF
BIDS AND THAT SALES OF MILK AT PRICES BELOW THE PRESCRIBED MINIMA WOULD
BE CONSTRUED AS VIOLATIONS OF THE MILK CONTROL LAW.  THE DAIRY
SUBMITTED A BID OFFERING TO SELL MILK IN WHOLESALE QUANTITIES AT PRICES
SUBSTANTIALLY BELOW THOSE PRESCRIBED BY THE COMMISSION.  ITS BID WAS
ACCEPTED BY A WAR DEPARTMENT PURCHASE ORDER OF MARCH 1, 1941, THE
CONTRACT WAS AWARDED TO IT AS THE LOWEST BIDDER, AND IT PERFORMED THE
CONTRACT BY DELIVERIES OF THE MILK AT THE CONTRACT PRICE - ALL WITHIN
THE STATE. 

ON MARCH 5, 1941, THE COMMISSION, PURSUANT TO SECS. 404 AND 405 OF
THE MILK CONTROL ACT, ISSUED A CITATION TO THE DAIRY TO SHOW CAUSE WHY
ITS APPLICATION FOR A MILK DEALER'S LICENSE FOR THE YEAR BEGINNING MAY
1, 1941, SHOULD NOT BE DENIED BECAUSE OF ITS SALE AND DELIVERY OF THE
MILK AT PRICES BELOW THE MINIMA FIXED BY THE COMMISSION'S ORDER. 
CIRCUMSTANCES NOT NOW MATERIAL, BUT PROVIDES THAT THE COMMISSION MAY
DENY OR CANCEL A LICENSE WHERE THE APPLICANT OR LICENSEE "HAS VIOLATED
ANY OF THE PROVISIONS OF THIS ACT OR ANY OF THE RULES, REGULATIONS OR
ORDERS OF THE COMMISSION  ...  " 

THE DAIRY'S ANSWER TO THE CITATION CHALLENGED THE CONSTITUTIONAL
AUTHORITY OF THE STATE TO REGULATE PRICES CHARGED TO THE UNITED
STATES.  AFTER A HEARING THE COMMISSION DENIED THE DAIRY'S LICENSE
APPLICATION BECAUSE OF ITS SALE OF MILK TO THE UNITED STATES AT PRICES
BELOW THOSE FIXED BY THE COMMISSION.  THE COMMISSION'S ORDER WAS
SUSTAINED ON REVIEW BY THE COURT OF COMMON PLEAS OF LANCASTER COUNTY. 
THE SUPERIOR COURT AFFIRMED THIS JUDGMENT, 148 PA. SUPER.  261, 24 A.2D
717, IN AN OPINION WHICH WAS ADOPTED BY THE SUPREME COURT OF
PENNSYLVANIA, 344 PA. 635, 26 A.2D 431, BOTH COURTS HOLDING THAT THE
COMMISSION'S PRICE-FIXING ORDER WAS APPLICABLE TO SALES OF MILK MADE TO
THE UNITED STATES, AND THAT AS THUS APPLIED THE STATUTE DID NOT IMPOSE
AN UNCONSTITUTIONAL BURDEN ON THE UNITED STATES OR OTHERWISE INFRINGE
THE CONSTITUTION OR LAWS OF THE UNITED STATES.  THE CASE COMES HERE ON
APPEAL UNDER SEC. 237 OF THE JUDICIAL CODE.  THE GOVERNMENT WAS GRANTED
LEAVE TO INTERVENE IN THE COURT OF COMMON PLEAS, AND HAS PARTICIPATED
IN ALL SUBSEQUENT STAGES OF THE LITIGATION. 

APPELLANTS URGE THAT THE PENNSYLVANIA MILK CONTROL ACT, AS APPLIED TO
A DEALER SELLING TO THE UNITED STATES, VIOLATES A CONSTITUTIONAL
IMMUNITY OF THE UNITED STATES, AND ALSO CONFLICTS WITH FEDERAL
LEGISLATION REGULATING PURCHASES BY THE UNITED STATES AND THEREFORE
CANNOT CONSTITUTIONALLY APPLY TO SUCH PURCHASES. 

APPELLANTS' FIRST PROPOSITION PROCEEDS ON THE ASSUMPTION THAT LOCAL
PRICE REGULATIONS NORMALLY CONTROLLING MILK DEALERS WHO CARRY ON THEIR
BUSINESS WITHIN THE STATE, WHEN APPLIED TO SALES MADE TO THE
GOVERNMENT, SO BURDEN IT OR SO CONFLICT WITH THE CONSTITUTION AS TO
RENDER THE REGULATIONS UNLAWFUL.  WE MAY ASSUME THAT CONGRESS, IN AID
OF ITS GRANTED POWER TO RAISE AND SUPPORT ARMIES, ARTICLE I, SEC. 8,
CL. 12, AND WITH THE SUPPORT OF THE SUPREMACY CLAUSE, ARTICLE VI, SEC.
2, COULD DECLARE STATE REGULATIONS LIKE THE PRESENT INAPPLICABLE TO
SALES TO THE GOVERNMENT.  CF. PITTMAN V. HOME OWNERS' LOAN CORP., 308
U.S. 21, 33; FEDERAL LAND BANK V. BISMARCK CO., 314 U.S. 95, 101-04;
PARKER V. BROWN, 317 U.S. 341, 350-351, AND CASES CITED.  BUT THERE IS
NO CLAUSE OF THE CONSTITUTION WHICH PURPORTS, UNAIDED BY CONGRESSIONAL
ENACTMENT, TO PROHIBIT SUCH REGULATIONS, AND THE QUESTION WITH WHICH WE
ARE NOW CONCERNED IS WHETHER SUCH A PROHIBITION IS TO BE IMPLIED FROM
THE RELATIONSHIP OF THE TWO GOVERNMENTS ESTABLISHED BY THE
CONSTITUTION. 

WE MAY ASSUME ALSO THAT, IN THE ABSENCE OF CONGRESSIONAL CONSENT,
THERE IS AN IMPLIED CONSTITUTIONAL IMMUNITY OF THE NATIONAL GOVERNMENT
FROM STATE TAXATION AND FROM STATE REGULATION OF THE PERFORMANCE, BY
FEDERAL OFFICERS AND AGENCIES, OF GOVERNMENTAL FUNCTIONS.  OHIO V.
THOMAS, 173 U.S. 276; JOHNSON V. MARYLAND, 254 U.S. 51; HUNT V. UNITED
STATES, 278 U.S. 96; ARIZONA V. CALIFORNIA, 283 U.S. 423.  BUT THOSE
WHO CONTRACT TO FURNISH SUPPLIES OR RENDER SERVICES TO THE GOVERNMENT
ARE NOT SUCH AGENCIES AND DO NOT PERFORM GOVERNMENTAL FUNCTIONS,
METCALF & EDDY V. MITCHELL, 269 U.S. 514, 524-5; JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, 149; BUCKSTAFF CO. V. MCKINLEY, 308 U.S.
358, 362-63 AND CASES CITED; CF. SUSQUEHANNA CO. V. TAX COMM'N, 283
U.S. 291, 294; HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376, 385
86, AND THE MERE FACT THAT NON-DISCRIMINATORY TAXATION OR REGULATION OF
THE CONTRACTOR IMPOSES AN INCREASED ECONOMIC BURDEN ON THE GOVERNMENT
IS NO LONGER REGARDED AS BRINGING THE CONTRACTOR WITHIN ANY IMPLIED
IMMUNITY OF THE GOVERNMENT FROM STATE TAXATION OR REGULATION.  ALABAMA
V. KING & BOOZER, 314 U.S. 1, 9, AND CASES CITED; BALTIMORE & ANNAPOLIS
R. CO. V. LICHTENBERG, 176 MD. 383, 4 A.2D 734, S.C., UNITED STATES V.
BALTIMORE & ANNAPOLIS R. CO., 308 U.S. 525. 

HERE THE STATE REGULATION IMPOSES NO PROHIBITION ON THE NATIONAL
GOVERNMENT OR ITS OFFICERS.  THEY MAY PURCHASE MILK FROM WHOM AND AT
WHAT PRICE THEY WILL, WITHOUT INCURRING ANY PENALTY.  SEE THE OPINION
BELOW, 148 PA. SUPER.  270-71.  AS IN THE CASE OF STATE TAXATION OF THE
SELLER, THE GOVERNMENT IS AFFECTED ONLY AS THE STATE'S REGULATION MAY
INCREASE THE PRICE WHICH THE GOVERNMENT MUST PAY FOR MILK.  BY THE
EXERCISE OF CONTROL OVER THE SELLER, THE REGULATION IMPOSES OR MAY
IMPOSE AN INCREASED ECONOMIC BURDEN ON THE GOVERNMENT, FOR IT MAY BE
ASSUMED THAT THE REGULATION IF ENFORCIBLE AND ENFORCED WILL INCREASE
THE PRICE OF THE MILK PURCHASED FOR CONSUMPTION IN PENNSYLVANIA, UNLESS
THE GOVERNMENT IS ABLE TO PROCURE A SUPPLY FROM WITHOUT THE STATE, SEE
BALDWIN V. SEELIG, 294 U.S. 511.  BUT IN THIS BURDEN, IF CONGRESS HAS
NOT ACTED TO FORBID IT, WE CAN FIND NO DIFFERENT OR GREATER IMPAIRMENT
OF FEDERAL AUTHORITY THAN IN THE TAX ON SALES TO A GOVERNMENT
CONTRACTOR SUSTAINED IN ALABAMA V. KING & BOOZER, SUPRA; OR THE STATE
REGULATION OF THE OPERATIONS OF A TRUCKING COMPANY IN PERFORMING ITS
CONTRACT WITH THE GOVERNMENT TO TRANSPORT WORKERS EMPLOYED ON A PUBLIC
WORKS ADMINISTRATION PROJECT, UPHELD IN BALTIMORE & ANNAPOLIS R. CO. V.
LICHTENBERG, SUPRA; OR THE LOCAL BUILDING REGULATIONS APPLIED TO A
CONTRACTOR ENGAGED IN CONSTRUCTING A POSTOFFICE BUILDING FOR THE
GOVERNMENT, SUSTAINED IN STEWART & CO. V. SADRAKULA, 309 U.S. 94. 

THE TREND OF OUR DECISIONS IS NOT TO EXTEND GOVERNMENTAL IMMUNITY
FROM STATE TAXATION AND REGULATION BEYOND THE NATIONAL GOVERNMENT
ITSELF AND GOVERNMENTAL FUNCTIONS PERFORMED BY ITS OFFICERS AND
AGENTS.  WE HAVE RECOGNIZED THAT THE CONSTITUTION PRESUPPOSES THE
CONTINUED EXISTENCE OF THE STATES FUNCTIONING IN COORDINATION WITH THE
NATIONAL GOVERNMENT, WITH AUTHORITY IN THE STATES TO LAY TAXES AND TO
REGULATE THEIR INTERNAL AFFAIRS AND POLICY, AND THAT STATE REGULATION
LIKE STATE TAXATION INEVITABLY IMPOSES SOME BURDENS ON THE NATIONAL
GOVERNMENT OF THE SAME KIND AS THOSE IMPOSED ON CITIZENS OF THE UNITED
STATES WITHIN THE STATE'S BORDERS, SEE METCALF & EDDY V. MITCHELL,
SUPRA, 523-24.  AND WE HAVE HELD THAT THOSE BURDENS, SAVE AS CONGRESS
MAY ACT TO REMOVE THEM, ARE TO BE REGARDED AS THE NORMAL INCIDENTS OF
THE OPERATION WITHIN THE SAME TERRITORY OF A DUAL SYSTEM OF GOVERNMENT,
AND THAT NO IMMUNITY OF THE NATIONAL GOVERNMENT FROM SUCH BURDENS IS TO
BE IMPLIED FROM THE CONSTITUTION WHICH ESTABLISHED THE SYSTEM, SEE
GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466, 483, 487. 

SINCE THE CONSTITUTION HAS LEFT CONGRESS FREE TO SET ASIDE LOCAL
TAXATION AND REGULATION OF GOVERNMENT CONTRACTORS WHICH BURDEN THE
NATIONAL GOVERNMENT, WE SEE NO BASIS FOR IMPLYING FROM THE CONSTITUTION
ALONE A RESTRICTION UPON SUCH REGULATIONS WHICH CONGRESS HAS NOT SEEN
FIT TO IMPOSE, UNLESS THE REGULATIONS ARE SHOWN TO BE INCONSISTENT WITH
CONGRESSIONAL POLICY.  EVEN IN THE CASE OF AGENCIES CREATED OR
APPOINTED TO DO THE GOVERNMENT'S WORK WE HAVE BEEN SLOW TO INFER AN
IMMUNITY WHICH CONGRESS HAS NOT GRANTED AND WHICH CONGRESSIONAL POLICY
DOES NOT REQUIRE.  RECONSTRUCTION FINANCE CORP. V. MENIHAN CORP., 312
U.S. 81, AND CASES CITED; COLORADO BANK V. BEDFORD, 310 U.S. 41, 53,
AND CASES CITED; CF. BALTIMORE NATIONAL BANK V. TAX COMMISSION, 297
U.S. 209.  OUR INQUIRY HERE, THEREFORE, MUST BE WHETHER THE STATE'S
REGULATION OF THIS CONTRACTOR IN A MATTER OF LOCAL CONCERN CONFLICTS
WITH CONGRESSIONAL LEGISLATION OR WITH ANY DISCERNIBLE CONGRESSIONAL
POLICY. 

TO ESTABLISH SUCH A CONFLICT THE GOVERNMENT PLACES ITS RELIANCE ON
ACTS OF CONGRESS REQUIRING COMPETITIVE BIDDING IN THE PURCHASE OF
SUPPLIES FOR THE ARMY.  SECTION 3709 OF THE REVISED STATUTES, 41 U.S.C.
SEC. 5, REQUIRES PUBLIC ADVERTISING FOR ALL GOVERNMENT PURCHASES SAVE
"WHEN IMMEDIATE DELIVERY OR PERFORMANCE IS REQUIRED BY THE PUBLIC
EXIGENCY."  N1  A SIMILAR PROVISION HAD APPEARED IN SEC. 5 OF THE ACT
OF MARCH 3, 1809, 2 STAT. 536, WHICH REQUIRED ALL PURCHASES BY THE
TREASURY, WAR OR NAVY DEPARTMENTS TO BE MADE "BY OPEN PURCHASE, OR BY
PREVIOUSLY ADVERTISING FOR PROPOSALS RESPECTING THE SAME."  THE
APPROPRIATION ACT OF MARCH 2, 1901, 31 STAT. 905, AND SUBSEQUENT
APPROPRIATION ACTS, INCLUDED A PROVISION REQUIRING PUBLIC ADVERTISING
FOR THE PURCHASE OF ALL SUPPLIES FOR THE USE OF THE ARMY, WITH
EXCEPTIONS NOT NOW MATERIAL, "EXCEPT IN CASE OF EMERGENCY OR WHERE IT
IS IMPRACTICABLE TO SECURE COMPETITION" AND REQUIRING THE PURCHASE OF
SUCH SUPPLIES "WHERE THE SAME CAN BE PURCHASED THE CHEAPEST, THE
QUALITY AND COST OF TRANSPORTATION AND THE INTERESTS OF THE GOVERNMENT
CONSIDERED."  10 U.S.C. SEC. 1201.  AND A PROVISION ENACTED AS PART OF
THE APPROPRIATION ACT OF JULY 5, 1884, 23 STAT. 109, 10 U.S.C. SEC.
1200, REQUIRES THAT ALL PURCHASES OF QUARTER-MASTER'S SUPPLIES BE MADE
BY CONTRACT AFTER PUBLIC NOTICE AND THAT THE AWARD BE MADE TO "THE
LOWEST RESPONSIBLE BIDDER FOR THE BEST AND MOST SUITABLE ARTICLE, THE
RIGHT BEING RESERVED TO REJECT ANY AND ALL BIDS." 

IT IS TO BE NOTED THAT WHILE THESE STATUTES DIRECT GOVERNMENT
OFFICIALS TO INVITE COMPETITIVE BIDDING BY CONTRACTORS UNDERTAKING TO
FURNISH ARMY SUPPLIES, AND ALSO REQUIRE THEM TO ACCEPT THE LOWEST
RESPONSIBLE BID IF ANY IS ACCEPTED, THEY DO NOT PURPORT TO SET ASIDE
LOCAL PRICE REGULATIONS OR TO PROHIBIT THE STATES FROM TAKING PUNITIVE
MEASURES FOR VIOLATIONS OF SUCH REGULATIONS.  THEY ARE WHOLLY
CONSISTENT WITH THE CONTINUED EXISTENCE OF SUCH PRICE REGULATIONS, AND
WITH THE ACCEPTANCE BY GOVERNMENT OFFICERS OF THE REGULATED PRICE WHERE
THAT IS THE LOWEST BID, OR THE OMISSION OF COMPETITIVE BIDDING IN
CIRCUMSTANCES WHERE LOCAL PRICE REGULATIONS RENDER IT "IMPRACTICABLE TO
SECURE COMPETITION."  NOR ARE WE ABLE TO DISCERN, IN THE LANGUAGE OR
LEGISLATIVE HISTORY OF THESE OR RELATED STATUTES REGULATING GOVERNMENT
CONTRACTS, ANY INDICATION THAT LOW COST WAS SUCH A CONTROLLING
CONSIDERATION WITH CONGRESS AS TO JUSTIFY AN INFERENCE THAT CONGRESS
INTENDED TO DISPLACE STATE REGULATIONS AFFECTING THE PRICE OF ARTICLES
PURCHASED BY THE GOVERNMENT.  THE REASON FOR THE PASSAGE OF SEC. 5 OF
THE ACT OF MARCH 3, 1809, HAS BEEN SAID TO BE "TO THROW ADDITIONAL
SAFEGUARDS AROUND THIS SUBJECT; TO PREVENT FAVORITISM, AND TO GIVE TO
THE UNITED STATES THE BENEFIT OF COMPETITION  ...  " 2 OP. ATTY. GEN.
257, 259. 

WE ARE NOT ADVISED OF ANY STATUTE IN WHICH CONGRESS HAS UNDERTAKEN TO
SET ASIDE STATE LAWS AFFECTING THE PRICE OF GOODS SUPPLIED TO THE
GOVERNMENT IN ORDER TO SECURE A LOWER PRICE THAN WOULD OTHERWISE BE
OBTAINABLE.  AND CONGRESS HAS OFTEN REQUIRED THE INCLUSION IN
GOVERNMENT CONTRACTS OF TERMS NOT DIRECTLY RELATED TO THE INTERESTS OF
THE GOVERNMENT AS PURCHASER, WHICH HAVE THE EFFECT OF INCREASING COST. 
TITLE III, SEC. 2 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1520, 41 U.S.C.
SECS. 10(A)-10(C), REQUIRES THE USE OF AMERICAN-PRODUCED GOODS ON ALL
PUBLIC WORKS CONTRACTS UNLESS THE HEAD OF THE DEPARTMENT FINDS THAT THE
USE OF SUCH MATERIALS IS "IMPRACTICABLE" OR WOULD "UNREASONABLY
INCREASE THE COST."  THE EIGHT HOUR LAW OF AUGUST 1, 1892, 27 STAT.
340, AS AMENDED, 40 U.S.C. SECS. 321-326, LIMITS TO EIGHT HOURS PER DAY
THE WORK OF PERSONS EMPLOYED BY CONTRACTORS WITH THE GOVERNMENT AND
REQUIRES ALL GOVERNMENT CONTRACTS TO INCLUDE PROVISIONS TO THAT
EFFECT.  THE DAVIS-BACON ACT OF MARCH 3, 1931, 46 STAT. 1494, AS
AMENDED, 40 U.S.C. SEC. 276(A), REQUIRES ALL CONTRACTS FOR PUBLIC
BUILDINGS TO CONTAIN PREVAILING MINIMUM WAGE PROVISIONS, AND THE WALSH
HEALEY ACT, 49 STAT. 2036, 41 U.S.C. SEC. 35, REQUIRES THE INCLUSION IN
ALL GOVERNMENT CONTRACTS IN EXCESS OF $10,000 OF PROVISIONS REQUIRING
THE CONTRACTOR'S ADHERENCE TO PRESCRIBED MINIMUM WAGES, MAXIMUM HOURS,
RESTRICTIONS ON EMPLOYMENT OF CHILD LABOR AND REQUIREMENTS FOR SAFETY
OF WORKING CONDITIONS.  FN2 

EVIDENCE IS WANTING THAT CONGRESS, IN AUTHORIZING COMPETITIVE
BIDDING, HAS BEEN SO CONCERNED WITH SECURING THE LOWEST POSSIBLE PRICE
FOR ARTICLES FURNISHED TO THE GOVERNMENT THAT IT WISHED TO SET ASIDE
ALL LOCAL REGULATIONS AFFECTING PRICE.  ON THE CONTRARY CONGRESS HAS
REGARDED THE FIELD OF PUBLIC CONTRACTS AS ONE OVER WHICH TO EXERCISE
ITS SUPERVISORY LEGISLATIVE POWERS IN SAFEGUARDING INTERESTS WHICH MAY
CONFLICT WITH THE NEEDS OF THE GOVERNMENT VIEWED SOLELY AS PURCHASER. 
AN UNEXPRESSED PURPOSE OF CONGRESS TO SET ASIDE STATUTES OF THE STATES
REGULATING THEIR INTERNAL AFFAIRS IS NOT LIGHTLY TO BE INFERRED AND
OUGHT NOT TO BE IMPLIED WHERE THE LEGISLATIVE COMMAND, READ IN THE
LIGHT OF ITS HISTORY, REMAINS AMBIGUOUS.  CONSIDERATIONS WHICH LEAD US
NOT TO FAVOR REPEAL OF STATUTES BY IMPLICATION, UNITED STATES V. BORDEN
CO., 308 U.S. 188, 198-9; UNITED STATES V. JACKSON, 302 U.S. 628, 631;
POSADAS V. NATIONAL CITY BANK, 296 U.S. 497, 503-5, SHOULD BE AT LEAST
AS PERSUASIVE WHEN THE QUESTION IS ONE OF THE NULLIFICATION OF STATE
POWER BY CONGRESSIONAL LEGISLATION. 

HENCE, IN THE ABSENCE OF SOME EVIDENCE OF AN INFLEXIBLE CONGRESSIONAL
POLICY REQUIRING GOVERNMENT CONTRACTS TO BE AWARDED ON THE LOWEST BID
DESPITE NONCOMPLIANCE WITH STATE REGULATIONS OTHERWISE APPLICABLE, WE
CANNOT SAY THAT THE PENNSYLVANIA MILK REGULATION CONFLICTS WITH
CONGRESSIONAL LEGISLATION OR POLICY AND MUST BE SET ASIDE MERELY
BECAUSE IT INCREASES THE PRICE OF MILK TO THE GOVERNMENT.  IT WOULD BE
NO MORE THAN SPECULATION FOR US TO SAY THAT CONGRESS WOULD CONSIDER THE
GOVERNMENT'S PECUNIARY INTEREST AS A PURCHASER OF MILK MORE IMPORTANT
THAN THE INTEREST ASSERTED BY PENNSYLVANIA IN THE STABILIZATION OF HER
MILK SUPPLY THROUGH CONTROL OF PRICE.  COURTS SHOULD GUARD AGAINST
RESOLVING THESE COMPETING CONSIDERATIONS OF POLICY BY IMPUTING TO
CONGRESS A DECISION WHICH QUITE CLEARLY IT HAS NOT UNDERTAKEN TO MAKE. 
FURTHERMORE WE SHOULD BE SLOW TO STRIKE DOWN LEGISLATION WHICH THE
STATE CONCEDEDLY HAD POWER TO ENACT, BECAUSE OF ITS ASSERTED BURDEN ON
THE FEDERAL GOVERNMENT.  FOR THE STATE IS POWERLESS TO REMOVE THE ILL
EFFECTS OF OUR DECISION, WHILE THE NATIONAL GOVERNMENT, WHICH HAS THE
ULTIMATE POWER, REMAINS FREE TO REMOVE THE BURDEN. 

THE GOVERNMENT, IN SUPPORT OF ITS POSITION, POINTS TO ARMY REGULATION
5-100, PARAGRAPH 11D, WHICH WAS IN EFFECT AT THE TIME THIS CONTRACT WAS
ENTERED INTO AND PERFORMED,  FN3  AND WHICH READ AS FOLLOWS: 

"STATE PRICE-FIXING LAWS.  - APPROPRIATED FUNDS MAY NOT BE USED FOR
PAYMENTS UNDER AWARDS UPON INVITATIONS FOR BIDS CONTAINING RESTRICTIVE
REQUIREMENTS OF SHOWING COMPLIANCE WITH STATE PRICE-FIXING LAWS
RELATING TO SERVICES, COMMODITIES, OR ARTICLES NECESSARY TO BE
PURCHASED BY THE UNITED STATES UNTIL THERE HAS BEEN AN AUTHORITATIVE
AND FINAL JUDICIAL DETERMINATION THAT SUCH STATE STATUTES ARE
APPLICABLE TO SUCH CONTRACTS.  IT IS NOT THE DUTY OR RESPONSIBILITY OF
CONTRACTING OFFICERS OF THE FEDERAL GOVERNMENT, BY MEANS OF RESTRICTIVE
SPECIFICATIONS, TO ENFORCE CONTRACTORS TO COMPLY WITH THE REQUIREMENTS
OF PRICEFIXING ACTS OF A STATE.  SEE 16 COMP. GEN. 97, 348; 17 ID. 287;
19 ID. 614." 

TWO OBSERVATIONS ARE TO BE MADE WITH RESPECT TO THIS REGULATION.  THE
STATUTES AUTHORIZING THE SECRETARY OF WAR "TO PRESCRIBE RULES AND
REGULATIONS TO BE OBSERVED IN THE PREPARATION AND SUBMISSION AND
OPENING OF BIDS FOR CONTRACTS UNDER THE WAR DEPARTMENT," 20 STAT. 36,
22 STAT. 487, 5 U.S.C. SEC. 218, GIVE NO HINT OF ANY DELEGATION TO THE
SECRETARY OR HIS SUBORDINATES OF POWER TO DO WHAT CONGRESS HAS FAILED
TO DO - RESTRICT THE APPLICATION OF LOCAL REGULATIONS, OTHERWISE
APPLICABLE TO GOVERNMENT CONTRACTORS, WHICH INCREASE PRICE.  AND THE
REGULATION ITSELF IS AT MOST A DIRECTION TO CONTRACTING OFFICERS NOT TO
ASSUME BY THEIR SPECIFICATIONS FOR BIDS ANY RESPONSIBILITY FOR
REQUIRING COMPLIANCE WITH LOCAL PRICE REGULATIONS BEFORE IT IS
JUDICIALLY DETERMINED WHETHER SUCH REGULATIONS ARE APPLICABLE TO
GOVERNMENT CONTRACTS. 

THAT SUCH IS THE MEANING OF THE REGULATION IS MADE PLAIN BY REFERENCE
TO THE OPINIONS OF THE COMPTROLLER GENERAL, CITED IN THE REGULATION. 
ALL REST ON THE REASONING OF PANHANDLE OIL CO. V. KNOX, 277 U.S. 218,
AND LIKE CASES, WHICH WERE OVERRULED IN ALABAMA V. KING & BOOZER,
SUPRA.  THE COMPTROLLER GENERAL HELD THAT SINCE THE CONSTITUTIONAL
APPLICABILITY OF LOCAL PRICE REGULATIONS TO GOVERNMENT CONTRACTORS WAS
DOUBTFUL, THE RIGHT OF THE GOVERNMENT TO CHALLENGE THEIR VALIDITY
SHOULD NOT BE FORECLOSED BY CONTRACTUAL PROVISIONS, AND THAT IN THE
ABSENCE OF A JUDICIAL DETERMINATION OF THEIR APPLICABILITY A BID WHICH
FAILED TO COMPLY WITH SUCH PRICE REGULATIONS COULD NOT FOR THAT REASON
BE REJECTED. 

WHEN PARAGRAPH 11D WAS ADOPTED, PARAGRAPH 4G OF ARMY REGULATION 5-240
DEFINED THE SITUATIONS IN WHICH, BECAUSE IT WAS DEEMED "IMPRACTICABLE
TO SECURE COMPETITION," SUPPLIES MIGHT, UNDER 10 U.S.C. SEC. 1201, BE
PURCHASED IN THE OPEN MARKET WITHOUT ADVERTISING.  PARAGRAPH 4G (3)
DECLARED THAT SUCH A SITUATION AROSE "WHEN THE PRICE IS FIXED BY
FEDERAL, STATE, MUNICIPAL OR OTHER COMPETENT LEGAL AUTHORITY," A CLEAR
INDICATION THAT STATE PRICE REGULATIONS WERE NOT THOUGHT TO BE
INAPPLICABLE TO SALES UNDER ARMY CONTRACTS.  FN4  AFTER THE PRESENT
SUIT WAS BEGUN SUBPARAGRAPH 3 WAS ELIMINATED.  THE ONLY EFFECT OF THIS
ELIMINATION WAS TO REMOVE THE CONFLICT OF THAT PARAGRAPH WITH THE
"HANDS OFF POLICY" OF THE WAR DEPARTMENT ADOPTED BY ARMY REGULATION 5
100, PARAGRAPH 11D.    EVEN THOUGH IT BE ASSUMED THAT THE SECRETARY
COULD BY REGULATION SET ASIDE THE STATE'S PRICE LEGISLATION WHICH IT
HAS MADE APPLICABLE TO GOVERNMENT CONTRACTORS, HE PLAINLY HAS NOT DONE
SO. HE HAS LEFT THE QUESTION OF ITS APPLICABILITY TO BE SETTLED BY THIS
COURT'S DETERMINATION OF THE SCOPE OF THE GOVERNMENT'S IMMUNITY UNDER
THE LAWS AND CONSTITUTION OF THE UNITED STATES.  IN THE MEANTIME HE HAS
ADOPTED A SPECIFIC POLICY OF NOT INCLUDING, IN GOVERNMENT CONTRACTS,
TERMS REQUIRING THE CONTRACTOR'S COMPLIANCE WITH STATE PRICE-FIXING
LEGISLATION, THUS AVOIDING ANY ACTION WHICH COULD BE CONSTRUED AS AN
ASSENT TO THE APPLICATION OF SUCH LEGISLATION TO GOVERNMENT CONTRACTORS
IN CIRCUMSTANCES, IF ANY, WHERE IT WOULD WITHOUT AFFIRMATIVE ASSENT BE
INAPPLICABLE. 

WE ARE UNABLE TO FIND IN CONGRESSIONAL LEGISLATION, EITHER AS READ IN
THE LIGHT OF ITS HISTORY OR AS CONSTRUED BY THE EXECUTIVE OFFICERS
CHARGED WITH THE EXERCISE OF THE CONTRACTING POWER, ANY DISCLOSURE OF A
PURPOSE TO IMMUNIZE GOVERNMENT CONTRACTORS FROM LOCAL PRICE-FIXING
REGULATIONS WHICH WOULD OTHERWISE BE APPLICABLE.  NOR, IN THE
CIRCUMSTANCES OF THIS CASE, CAN WE FIND THAT THE CONSTITUTION, UNAIDED
BY CONGRESSIONAL ENACTMENT, CONFERS SUCH AN IMMUNITY.  IT FOLLOWS THAT
THE PENNSYLVANIA COURTS RIGHTLY HELD THAT THE CONSTITUTION AND LAWS OF
THE UNITED STATES DID NOT PRECLUDE THE APPLICATION OF THE PENNSYLVANIA
MILK CONTROL LAW TO APPELLANT PENN DAIRIES, INC., BY DENIAL OF ITS
LICENSE APPLICATION.  AFFIRMED. 

FN1  THIS PROVISION WAS DERIVED FROM SEC. 10 OF THE APPROPRIATION ACT
OF MAR. 2, 1861, 12 STAT. 220, WHICH IN TURN WAS A REENACTMENT OF SEC.
3 OF THE APPROPRIATION ACT OF JUNE 23, 1860, 12 STAT. 103.  LIKE THE
ACT OF MARCH 2, 1901, R.S. SEC. 3709 HAS BEEN CONSTRUED AS INAPPLICABLE
WHERE COMPETITION IS IMPRACTICABLE.  38 OP. ATTY. GEN. 164, 174; 39 OP.
ATTY. GEN. 111; 17 OP. ATTY. GEN. 84, 87. 

FN2  THE MILITARY APPROPRIATION ACT OF 1941, 55 STAT. 372, REQUIRES
THE PURCHASE OF FOOD AND CLOTHING PRODUCED IN THE UNITED STATES UNLESS
NONE OF SATISFACTORY QUALITY IS AVAILABLE IN SUFFICIENT QUANTITY AND AT
"REASONABLE PRICES."  AND SUCCESSIVE APPROPRIATION ACTS MATERIALLY
RESTRICT THE USE OF APPROPRIATED FUNDS BY THE QUARTERMASTER CORPS TO
PURCHASE OLEOMARGARINE OR BUTTER SUBSTITUTES.  E.G. 49 STAT. 1285, 50
STAT. 449, 52 STAT. 649, 53 STAT. 600, 54 STAT. 358, 55 STAT. 372.  SEE
ALSO R.S. SEC. 3716, 10 U.S.C. SEC. 1202(PREFERENCE TO ARTICLES OF
DOMESTIC PRODUCTION "CONDITIONS OF PRICE AND QUALITY BEING EQUAL"). 

THE WAR DEPARTMENT, BY PROCUREMENT CIRCULAR NO. 4, FEBRUARY 9, 1938,
AND PROCUREMENT CIRCULAR NO. 10, JANUARY 26, 1942, ISSUED PURSUANT TO
PAR. 5(H) OF AR 5-140, PROVIDED FOR THE INCLUSION IN ARMY CONTRACTS OF
PROVISIONS REQUIRING THE BIDDER TO CERTIFY TO HIS COMPLIANCE WITH ANY
APPLICABLE MARKETING AGREEMENT, LICENSE, OR ORDER, EXECUTED OR ISSUED
BY THE SECRETARY OF AGRICULTURE PURSUANT TO THE AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937, 7 U.S.C. SECS. 601 ET SEQ. ALL PROCUREMENT
CIRCULARS HAVE SINCE BEEN RESCINDED, SEE INFRA N. 3. 

SEE ALSO EXECUTIVE ORDER NO. 325-A, MAY 18, 1905(CONVICT LABOR),
TEMPORARILY SUSPENDED BY EXECUTIVE ORDER NO. 9196, JULY 9, 1942;
EXECUTIVE ORDERS NOS. 6246, AUG. 10, 1933, AND 6646, MARCH 14,
1934(COMPLIANCE WITH CODES OF FAIR COMPETITION). 

DESPITE THE ENACTMENT OF SEC. 201 OF THE FIRST WAR POWERS ACT, DEC.
18, 1941, 55 STAT. 839, EMPOWERING THE PRESIDENT TO AUTHORIZE CONTRACTS
TO BE ENTERED INTO WITHOUT REGARD TO PROVISIONS OF EXISTING LAW, THE
WALSH-HEALEY ACT, THE DAVIS-BACON ACT, AND THE EIGHT HOUR LAW REMAIN
APPLICABLE TO ALL GOVERNMENT CONTRACTS, EXECUTIVE ORDER NO. 9001, DEC.
27, 1941. 

FN3  ALL OF THE ARMY REGULATIONS AND PROCUREMENT CIRCULARS REFERRED
TO IN THIS OPINION WERE RESCINDED ON THE ADOPTION OF WAR DEPARTMENT
PROCUREMENT REGULATIONS, EFFECTIVE JULY 1, 1942, CODE OF FEDERAL
REGULATIONS, TITLE 10, SEC. 81, 7 FED. REG. 8082.  SEE PROCUREMENT
REGULATION 1, PARS. 102, 103.  PARAGRAPH 209 OF PROCUREMENT REGULATION
2 - ISSUED UNDER THE AUTHORITY OF SEC. 201 OF THE FIRST WAR POWERS ACT,
DECEMBER 18, 1941, 55 STAT. 839, AND EXECUTIVE ORDER NO. 9001, DECEMBER
27, 1941 - PROVIDES THAT ALL CONTRACTS SHALL BE PLACED BY NEGOTIATION
SAVE WHERE FORMAL ADVERTISING IS AUTHORIZED BY THE DIRECTOR OF
PURCHASES OF THE WAR PRODUCTION BOARD. 

FN4  IN A MEMORANDUM TO THE UNDERSECRETARY OF WAR DATED APRIL 16,
1941, AFTER THE PRESENT LITIGATION HAD BEEN INSTITUTED, THE JUDGE
ADVOCATE GENERAL EXPRESSED THE OPINION THAT IN VIEW OF THE APPARENT
CONFLICT BETWEEN THE TERMS OF AR 5-240, PAR. 4G (3) AND AR 5-100, PAR.
11D (AT THAT TIME RENUMBERED AS PAR. 11E), THE FORMER REGULATION
APPLIED ONLY IN EXCEPTIONAL SITUATIONS AND WAS NOT EFFECTIVE TO MAKE
APPLICABLE TO GOVERNMENT CONTRACTORS PRICE-FIXING REGULATIONS SUCH AS
THAT HERE INVOLVED.  THE JUDGE ADVOCATE GENERAL REFERRED TO THE
"CONSISTENT POSITION" TAKEN BY THE WAR DEPARTMENT "THAT PRICE-FIXING
MEASURES OF THE STATES HAVE NO APPLICATION TO PROCUREMENTS BY THE WAR
DEPARTMENT."  BUT WE DO NOT UNDERSTAND FROM THIS OR OTHER MEMORANDA OF
THE JUDGE ADVOCATE GENERAL THAT THE POSITION REFERRED TO IS ANY BROADER
THAN THAT EXPRESSED IN PAR. 11D OF AR 5-100 AND IN THE OPINIONS OF THE
COMPTROLLER GENERAL TO WHICH THAT PARAGRAPH REFERS. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MURPHY, CONCURRING: 

I AGREE WITH THE OPINION OF THE COURT THAT NEITHER CONGRESSIONAL
LEGISLATION NOR THE IMPLICATIONS OF THE CONSTITUTION PREVENT THE
APPLICATION OF THE MINIMUM PRICE REQUIREMENTS OF THE PENNSYLVANIA MILK
CONTROL LAW TO THE SALE OF MILK BY A DEALER TO THE UNITED STATES, BUT
WISH TO EMPHASIZE A PHASE OF THE QUESTION WHICH I BELIEVE IS MOST
IMPORTANT. 

WE ARE NOT CONCERNED HERE WITH JUST AN ORDINARY STATE REGULATORY
STATUTE OF NON-DISCRIMINATORY CHARACTER WHICH AFFECTS THE FEDERAL
GOVERNMENT IN SOME DEGREE, BUT WITH A GENERAL MEASURE DESIGNED TO
SAFEGUARD THE HEALTH AND WELL-BEING OF THE PUBLIC BY INSURING AN
ADEQUATE SUPPLY OF WHOLESOME MILK AT STABLE PRICES.  FN1  THE
PRESERVATION OF PUBLIC HEALTH IS A MATTER OF GRAVE AND PRIMARY CONCERN
TO THE STATES AND THE NATION AT ALL TIMES, BUT EVEN MORE SO IN TIME OF
WAR.  THEN INDEED A HEALTHY CITIZENRY IS ESSENTIAL TO NATIONAL
SURVIVAL, FOR THE WAGING OF MODERN "TOTAL WAR," IF IT IS TO BE DONE
WITH MAXIMUM EFFECTIVENESS, REQUIRES A SOUND AND HEALTHY PEOPLE, AS
WELL AS A STURDY FIGHTING FORCE. 

IN THIS COUNTRY WITH ITS HETEROGENEOUS POPULATION LIVING UNDER
DIVERSE CONDITIONS IN WIDELY SEPARATED AREAS, STATE AND LOCAL
AUTHORITIES ARE BEST QUALIFIED TO DETERMINE WHAT MEASURES ARE MOST
APPROPRIATE AND NECESSARY TO PROMOTE THE HEALTH AND WELL-BEING OF THE
PEOPLE WITHIN THEIR BORDERS, AND THEY SHOULD BE GIVEN THE WIDEST
POSSIBLE LATITUDE TO SOLVE THEIR SPECIAL PROBLEMS AS THEY THINK BEST. 
THE WHOLE FRAMEWORK OF OUR FEDERAL SYSTEM IS BASED UPON THIS
PRINCIPLE.  IT HAS CONTRIBUTED TO OUR STRENGTH AND SOLIDARITY AS ONE
PEOPLE.  IT SHOULD BE THE AIM OF ALL FEDERAL PROCUREMENT OFFICERS,
MILITARY OR CIVILIAN, TO HARMONIZE THEIR WORK SO FAR AS POSSIBLE WITH
THIS BROAD POLICY OF GOVERNMENT.  SUCH AN AIM IS IN ACCORD WITH THE
SPIRIT OF OUR LAWS AND THE CHARACTER OF OUR INSTITUTIONS AND WILL BEST
INSURE WHOLE-HEARTED SUPPORT OF THE MILITARY PROGRAM. 

IN MY OPINION IT IS OF GREATER IMPORTANCE TO THE NATION AT WAR AND TO
ITS MILITARY ESTABLISHMENT THAT HIGH STANDARDS OF PUBLIC HEALTH BE
MAINTAINED THAN THAT THE MILITARY PROCUREMENT AUTHORITIES HAVE THE
BENEFIT OF UNRESTRAINED COMPETITIVE BIDDING AND LOWER PRICES IN THE
PURCHASE OF NEEDED MILK SUPPLIES.  THAT THE UNITED STATES MUST PAY 1.6[
MORE PER QUART FOR MILK IN PENNSYLVANIA HARDLY MEANS THE COLLAPSE OF
THE WAR EFFORT.  BUT IT IS COMMON KNOWLEDGE THAT ARMIES FREQUENTLY
SUFFER MORE FROM THE RAVAGES OF DISEASE AND SICKNESS THAN FROM THE
PERILS OF COMBAT, AND, IF MILK VENDORS DEALING WITH THE UNITED STATES
NEED NOT COMPLY WITH PENNSYLVANIA'S MINIMUM PRICE REQUIREMENTS, THE
EFFECTIVENESS OF PENNSYLVANIA'S LAW IS CONSIDERABLY REDUCED FOR IT IS
CONCEDED THAT THE INSTANT ORDER IS THE LARGEST SINGLE ONE EVER GIVEN
FOR MILK WITHIN THE STATE.  THIS REDUCED EFFECTIVENESS MAY HAVE SERIOUS
AND UNWANTED REPERCUSSIONS NOT ONLY UPON CIVILIAN HEALTH BUT THAT OF
THE MILITARY PERSONNEL STATIONED THERE AS WELL. 

IN THE CONDUCT OF THE WAR AS WELL AS IN OTHER RELATIONS, THE LARGER
INTERESTS OF THE FEDERAL GOVERNMENT AND THE NATION AS A WHOLE WILL NOT
SUFFER, NOR WILL CONSTITUTIONAL ARRANGEMENTS BE PREJUDICED, IF
PROCUREMENT OFFICERS ARE OBLIGED TO CONDUCT THEIR ACTIVITIES WITHIN THE
GENERAL FRAMEWORK OF STATE LAWS ENACTED WITHIN REASONABLE LIMITS TO
SAFEGUARD THE PUBLIC HEALTH AND SAFETY.  IF ALABAMA FOR THE PURPOSE OF
REVENUE CAN, CONSISTENTLY WITH THE CONSTITUTION, REQUIRE GOVERNMENT
CONTRACTORS TO PAY SALES AND USE TAXES UPON MATERIALS USED IN A COST
PLUS A FIXED FEE CONSTRUCTION CONTRACT, THE EFFECT OF WHICH IS TO
INCREASE THE COST OF CONSTRUCTION TO THE FEDERAL GOVERNMENT (ALABAMA V.
KING & BOOZER, 314 U.S. 1; CURRY V. UNITED STATES, 314 U.S. 14), THERE
IS ALL THE MORE REASON WHY PENNSYLVANIA, ACTING TO PROTECT THE PUBLIC
HEALTH, CAN REQUIRE, UNTIL CONGRESS MAKES CLEAR ITS WISHES OTHERWISE, A
DEALER SELLING MILK TO THE UNITED STATES TO ADHERE TO ITS MINIMUM PRICE
REQUIREMENTS.  THIS IS NOT TO SAY THAT THE STATES MAY EXERCISE DIRECT
CONTROL OVER THE ACTIONS OF FEDERAL OFFICIALS, MILITARY OR OTHERWISE,
OR THAT CONGRESS MAY NOT INVALIDATE OR SUSPEND LOCAL REGULATIONS
INSOFAR AS THEY AFFECT TRANSACTIONS WITH THE FEDERAL AUTHORITIES.  IF
CONGRESS DETERMINES THAT THE ENFORCEMENT OF THE PENNSYLVANIA LAW
AGAINST DEALERS SELLING TO THE UNITED STATES INTERFERES WITH ITS POWER
TO WAGE WAR, AND FORBIDS ITS APPLICATION TO THEM, WE HAVE A DIFFERENT
QUESTION.  SEE FEDERAL LAND BANK V. BISMARCK CO., 314 U.S. 95.  AS YET
IT HAS NOT DONE SO, AND IN THE ABSENCE OF SUCH A MEASURE, I CAN
PERCEIVE NO NECESSITY OR ADEQUATE JUSTIFICATION EITHER IN LAW OR
CONSTITUTIONAL THEORY FOR HOLDING PENNSYLVANIA'S REGULATION VOID AS
APPLIED HERE. 

FN1 SECTION 101 OF THE PENNSYLVANIA LAW DECLARES THAT THE MILK
INDUSTRY "IS A BUSINESS AFFECTING THE PUBLIC HEALTH AND AFFECTED WITH A
PUBLIC INTEREST," AND THAT THE PURPOSE OF THE ACT IS TO REGULATE AND
CONTROL THE INDUSTRY "FOR THE PROTECTION OF THE PUBLIC HEALTH AND
WELFARE AND FOR THE PREVENTION OF FRAUD."  SECTION 801 REQUIRES THE
MILK CONTROL COMMISSION TO ASCERTAIN AND MAINTAIN SUCH PRICES FOR MILK
"AS WILL BE MOST BENEFICIAL TO THE PUBLIC INTEREST, BEST PROTECT THE
MILK INDUSTRY OF THE COMMONWEALTH AND INSURE A SUFFICIENT QUANTITY OF
PURE AND WHOLESOME MILK TO INHABITANTS OF THE COMMONWEALTH, HAVING
SPECIAL REGARD TO THE HEALTH AND WELFARE OF CHILDREN RESIDING
THEREIN." 

MR. JUSTICE DOUGLAS, DISSENTING: 

THE CONTRACT WITH PENN DAIRIES WAS MADE BY THE WAR DEPARTMENT ACTING
THROUGH THE QUARTERMASTER OF THE ARMY.  THE QUARTERMASTER CORPS, ONE OF
THE STATUTORY BRANCHES OF THE REGULAR ARMY (41 STAT. 759, 10 U.S.C.
SEC. 4) IS CHARGED "UNDER THE AUTHORITY OF THE SECRETARY OF WAR" WITH
THE "PURCHASE AND PROCUREMENT FOR THE ARMY OF ALL SUPPLIES OF STANDARD
MANUFACTURE AND OF ALL SUPPLIES COMMON TO TWO OR MORE BRANCHES" OF THE
ARMY, WITH EXCEPTIONS NOT MATERIAL HERE.  39 STAT. 170, 41 STAT. 766,
10 U.S.C. SEC. 72.  THE PROCEDURE WHICH CONTROLS PURCHASES OF SUPPLIES
BY THE QUARTERMASTER CORPS IS GOVERNED BY THE STATUTES AND BY THE ARMY
REGULATIONS.  THERE ARE STATUTORY REQUIREMENTS FOR COMPETITIVE BIDDING
AS RESPECTS THE PURCHASE OF "ALL SUPPLIES"  FN1  AND WITH PARTICULAR
REFERENCE TO SUPPLIES PURCHASED "FOR IMMEDIATE USE."  FN2  THE ONLY
EXCEPTION RELEVANT HERE IS THE CASE "WHERE IT IS IMPRACTICABLE TO
SECURE COMPETITION."  10 U.S.C. SEC. 1201.  THE POLICY IS PLAIN - IT IS
INTENDED THAT THE UNITED STATES SHOULD GET THE FULL BENEFIT OF PRICE
COMPETITION IN ITS PURCHASES OF ARMY SUPPLIES.  SEE UNITED STATES V.
PURCELL ENVELOPE CO., 249 U.S. 313, 318. 

STATUTORY AUTHORITY IS VESTED IN THE SECRETARY OF WAR TO PRESCRIBE
RULES AND REGULATIONS COVERING THE PREPARATION, SUBMISSION, AND OPENING
OF BIDS "FOR CONTRACTS UNDER THE WAR DEPARTMENT."  20 STAT. 36, 22
STAT. 487, 5 U.S.C. SEC. 218.  THE SECRETARY PURSUANT TO THIS AUTHORITY
HAS ISSUED NUMEROUS REGULATIONS GOVERNING COMPETITIVE BIDDING. 
REGULATION NO. 5-100, PAR. 11D, AUGUST 7, 1940, SPECIFICALLY PROHIBITS
USE OF APPROPRIATED FUNDS FOR PAYMENTS UNDER CONTRACTS CONTAINING
PRICES FIXED BY STATE LAW "UNTIL THERE HAS BEEN AN AUTHORITATIVE AND
FINAL JUDICIAL DETERMINATION THAT SUCH STATE STATUTES ARE APPLICABLE TO
SUCH CONTRACTS."  FN3  THE POLICY OF THE WAR DEPARTMENT HAS BEEN WELL
ESTABLISHED.  THE JUDGE ADVOCATE GENERAL STATED IN APRIL 1941 THAT "THE
WAR DEPARTMENT HAS CONSISTENTLY TAKEN AND MAINTAINED THE POSITION THAT
PRICE-FIXING MEASURES OF THE STATES HAVE NO APPLICATION TO PROCUREMENTS
BY THE WAR DEPARTMENT."  WHATEVER AMBIGUITY MAY HAVE EXISTED IN OTHER
REGULATIONS HAS BEEN REMOVED.  FN4 

WE HAVE THEN REGULATIONS OF THE WAR DEPARTMENT MADE PURSUANT TO
POWERS DELEGATED BY CONGRESS AND WHICH PROHIBIT THE ARMY'S CONTRACTING
OFFICERS FROM WAIVING COMPETITIVE BIDDING MERELY BECAUSE PRICES ARE
FIXED BY THE STATES.  I AM UNABLE TO SEE WHY THEY ARE NOT VALID
REGULATIONS.  CONGRESS HAS SAID THAT COMPETITIVE BIDDING "SHALL" BE
REQUIRED EXCEPT WHERE IT IS "IMPRACTICABLE TO SECURE COMPETITION."  10
U.S.C. SEC. 1201.  THE WORD "IMPRACTICABLE" DOES NOT SUGGEST THAT
WHEREVER THERE IS STATE PRICE-FIXING COMPETITIVE BIDDING IS NOT
REQUIRED.  A THING IS "IMPRACTICABLE" TO DO WHEN IT IS INFEASIBLE OR
INCAPABLE OF BEING DONE.  THE CONTRACT WHICH THE QUARTERMASTER MADE
WITH PENN DAIRIES IS CONCLUSIVE OF THE FACT THAT IT WAS NOT
"IMPRACTICABLE" TO OBTAIN THE MILK THROUGH COMPETITIVE BIDDING.  A
REGULATION WHICH INTERPRETS "IMPRACTICABLE" SO AS NOT TO PRECLUDE
COMPETITIVE BIDDING BECAUSE OF STATE PRICE-FIXING STAYS WELL WITHIN THE
SCOPE OF THE RULE MAKING POWER.  THESE WAR DEPARTMENT REGULATIONS
ACCORDINGLY "HAVE THE FORCE OF LAW."  STANDARD OIL CO. V. JOHNSON, 316
U.S. 481, 484, AND CASES CITED.  THEIR APPLICATION IN THIS CASE
THEREFORE HAS NO LESS FORCE AND EFFECT THAN IF IT WAS SPECIFICALLY
DIRECTED BY CONGRESS.  WE HAVE THEN AN ASSERTION OF FEDERAL POWER IN
THE FIELD OF PRICE CONTROL WHICH BY REASON OF THE SUPREMACY CLAUSE
EXCLUDES ANY EXERCISE OF A CONFLICTING STATE POWER.  SEE SINNOT V.
DAVENPORT, 22 HOW.  227; MCDERMOTT V. WISCONSIN, 228 U.S. 115;
PENNSYLVANIA R. CO. V. ILLINOIS BRICK CO., 297 U.S. 447; HINES V.
DAVIDOWITZ, 312 U.S. 52; CLOVERLEAF BUTTER CO. V. PATTERSON, 315 U.S.
148. 

FN1  "EXCEPT IN CASES OF EMERGENCY OR WHERE IT IS IMPRACTICABLE TO
SECURE COMPETITION, OR IN CASES OTHERWISE PROVIDED FOR, THE PURCHASE OF
ALL SUPPLIES FOR THE USE OF THE VARIOUS DEPARTMENTS, AND POSTS OF THE
ARMY AND OF THE BRANCHES OF THE ARMY SERVICE SHALL ONLY BE MADE AFTER
ADVERTISEMENT; AND SAID SUPPLIES SHALL BE PURCHASED WHERE THE SAME CAN
BE PURCHASED THE CHEAPEST, QUALITY AND COST OF TRANSPORTATION AND THE
INTERESTS OF THE GOVERNMENT CONSIDERED."  31 STAT. 905, 32 STAT. 514,
10 U.S.C. SEC. 1201.  AND SEE R.S. SEC. 3709, 41 U.S.C. SEC. 5. 

FN2  "ALL PURCHASES OF REGULAR AND MISCELLANEOUS SUPPLIES FOR THE
ARMY FURNISHED BY THE QUARTERMASTER CORPS FOR IMMEDIATE USE SHALL BE
MADE BY THE OFFICERS OF SUCH CORPS, UNDER DIRECTION OF THE SECRETARY OF
WAR, AT THE PLACES NEAREST THE POINTS WHERE THEY ARE NEEDED, THE
CONDITIONS OF COST AND QUALITY BEING EQUAL:  PROVIDED, THAT ALL
PURCHASES OF SAID SUPPLIES, EXCEPT IN CASES OTHERWISE PROVIDED FOR, AND
EXCEPT IN CASES OF EMERGENCY, WHICH MUST BE AT ONCE REPORTED TO THE
SECRETARY OF WAR FOR HIS APPROVAL, SHALL BE MADE BY CONTRACT AFTER
PUBLIC NOTICE OF NOT LESS THAN TEN DAYS FOR SMALL AMOUNTS FOR IMMEDIATE
USE, AND OF NOT LESS THAN FROM THIRTY TO SIXTY DAYS WHENEVER, IN THE
OPINION OF THE SECRETARY OF WAR, THE CIRCUMSTANCES OF THE CASE AND
CONDITIONS OF THE SERVICE SHALL WARRANT SUCH EXTENSION OF TIME.  THE
AWARD IN EVERY CASE SHALL BE MADE TO THE LOWEST RESPONSIBLE BIDDER FOR
THE BEST AND MOST SUITABLE ARTICLE, THE RIGHT BEING RESERVED TO REJECT
ANY AND ALL BIDS."  23 STAT. 109, 37 STAT. 591, 10 U.S.C. SEC. 1200. 

FN3  THIS REGULATION READS AS FOLLOWS:  "APPROPRIATED FUNDS MAY NOT
BE USED FOR PAYMENTS UNDER AWARDS UPON INVITATIONS FOR BIDS CONTAINING
RESTRICTIVE REQUIREMENTS OF SHOWING COMPLIANCE WITH STATE PRICE-FIXING
LAWS RELATING TO SERVICES, COMMODITIES, OR ARTICLES NECESSARY TO BE
PURCHASED BY THE UNITED STATES UNTIL THERE HAS BEEN AN AUTHORITATIVE
AND FINAL JUDICIAL DETERMINATION THAT SUCH STATE STATUTES ARE
APPLICABLE TO SUCH CONTRACTS.  IT IS NOT THE DUTY OR RESPONSIBILITY OF
CONTRACTING OFFICERS OF THE FEDERAL GOVERNMENT, BY MEANS OF RESTRICTIVE
SPECIFICATIONS, TO ENFORCE CONTRACTORS TO COMPLY WITH THE REQUIREMENTS
OF PRICE-FIXING ACTS OF A STATE." 

FN4  ARMY REG. NO. 5-240, FEBRUARY 11, 1936, AS AMENDED JULY 6, 1938,
PROVIDED IN PARAGRAPH (4)(G)(3) THAT "PURCHASE MAY BE MADE IN THE OPEN
MARKET WITHOUT COMPETITION" WHEN THE "PRICE IS FIXED BY FEDERAL, STATE,
MUNICIPAL, OR OTHER COMPETENT LEGAL AUTHORITY."  IT SHOULD BE NOTED
THAT THIS WAS A PERMISSIVE AND NOT A MANDATORY REQUIREMENT.  ON MAY 10,
1941, PARAGRAPH (4)(G) WAS AMENDED SO AS TO OMIT ANY REFERENCE TO
GOVERNMENTAL PRICE FIXING. 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON JOIN IN THIS DISSENT. 
..END :








PACIFIC COAST DAIRY V. DEP'T, 318 U.S. 285 


NO. 275.  ARGUED JANUARY 12, 13, 1943.  - DECIDED MARCH 1, 1943.  - 19
CAL.2D 818, 123 P.2D 442, REVERSED. 


1.  THE STATE OF CALIFORNIA IS PRECLUDED BY THE FEDERAL CONSTITUTION
(ART. I, SEC. 8, CL. 17, AND THE SUPREMACY CLAUSE) FROM REVOKING THE
LICENSE OF A MILK DEALER FOR SELLING MILK TO THE WAR DEPARTMENT AT LESS
THAN THE MINIMUM PRICE FIXED BY STATE LAW, WHERE THE SALES AND
DELIVERIES WERE MADE ON MOFFETT FIELD, WHICH IS SUBJECT TO THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES.  PENN DAIRIES V. MILK
CONTROL COMM'N, ANTE, P. 261, DISTINGUISHED.  P. 294. 

2.  ALTHOUGH, BY THE TERMS OF THE FEDERAL GOVERNMENT'S ACQUISITION,
LOCAL LAW NOT INCONSISTENT WITH FEDERAL POLICY WAS TO REMAIN IN EFFECT
UNTIL ALTERED BY FEDERAL LEGISLATION, THE STATE LAW HERE INVOLVED WAS
ENACTED LONG AFTER THE TRANSFER OF SOVEREIGNTY AND WAS WITHOUT FORCE IN
THE ENCLAVE.  P. 294. 

3.  AS SOUGHT HERE TO BE APPLIED, THE STATE LAW WAS NOT A REGULATION
OF CONDUCT WHOLLY WITHIN THE STATE'S JURISDICTION.  P. 295. 

PACIFIC COAST DAIRY, INC. V. DEPARTMENT OF AGRICULTURE OF CALIFORNIA
ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

APPEAL FROM A JUDGMENT DENYING A WRIT OF MANDAMUS TO COMPEL THE
DISMISSAL OF A PROCEEDING PENDING BEFORE THE STATE DEPARTMENT OF
AGRICULTURE FOR THE REVOCATION OF PETITIONER'S LICENSE AS A DISTRIBUTOR
OF MILK. 

THE STATE OF CALIFORNIA MAY NOT REGULATE THE PRICE AT WHICH MILK IS
SOLD TO THE UNITED STATES.  SEE BRIEF FOR APPELLANTS IN PENN DAIRIES V.
MILK CONTROL COMM'N, ANTE, P. 261. 

CALIFORNIA MAY NOT, CONSISTENTLY WITH DUE PROCESS, REVOKE APPELLANT'S
LICENSE BECAUSE IT HANDLED MILK IN CALIFORNIA WHICH WAS SUBSEQUENTLY
SOLD ON MOFFETT FIELD AT PRICES BELOW THOSE FIXED BY THE STATE LAW. 
FIRST, IN HANDLING THE MILK APPELLANT WAS GUILTY OF NO ACT OR OMISSION
IN CALIFORNIA WHICH WAS ITSELF CONTRARY TO THE PUBLIC POLICY OF
CALIFORNIA; CALIFORNIA HAS SEIZED UPON SUCH ACTS FOR THE SOLE PURPOSE
OF REGULATING CONTRACTS MADE BEYOND ITS BORDERS, WHICH IT LACKS
JURISDICTION TO CONTROL DIRECTLY.  SECOND, WHILE A STATE MAY FORBID
CONDUCT WITHIN ITS BORDERS THAT IS ITSELF CONTRARY TO ITS PUBLIC POLICY
REGARDLESS OF THE REPERCUSSIONS BEYOND ITS BORDERS, IT MAY NOT REGULATE
CONDUCT, OTHERWISE WITHIN ITS COMPETENCE TO CONTROL, FOR THE SOLE
PURPOSE OF REGULATING MATTERS BEYOND ITS JURISDICTION, EVEN THOUGH THE
REPERCUSSIONS OF THE CONDUCT BEYOND ITS JURISDICTION IN TURN AFFECT
LOCAL POLICIES. 

IT IS IMMATERIAL THAT CALIFORNIA WAS SEEKING TO REGULATE THE SELLING
PRICE OF MILK IN THE FEDERAL ENCLAVE IN ORDER TO EFFECTUATE A
REASONABLE STATE POLICY.  IT IS NO MORE PERMISSIBLE FOR A STATE TO
CARRY OUT LOCAL POLICIES BY INDIRECTLY REGULATING MATTERS BEYOND ITS
COMPETENCE THAN IT IS FOR THE STATE TO DO SO BY DIRECT CONTROL. 

THE QUESTION IS NOT WHETHER CALIFORNIA MAY INTERFERE IN THE DOMESTIC
AFFAIRS OF ANOTHER STATE IN ORDER TO CARRY OUT HER POLICIES, BUT
WHETHER IT CAN EXERCISE BY INDIRECTION THE POWER OF EXCLUSIVE
LEGISLATION WHICH THE CONSTITUTION VESTS IN CONGRESS.  NO FORM OF WORDS
ENABLES A STATE TO REACH "BEYOND HER BORDERS TO REGULATE A SUBJECT
WHICH WAS NONE OF HER CONCERN BECAUSE THE CONSTITUTION HAS PLACED
CONTROL ELSEWHERE."  OSBORN V. OZLIN, 310 U.S. 53, 62.  THE DIRECTION
NOT TO HANDLE IN CALIFORNIA MILK SOLD IN THE FEDERAL ENCLAVE AT PRICES
BELOW THOSE FIXED BY STATE LAW WAS THEREFORE A NULLITY.  IT WOULD BE
ARBITRARY, UNREASONABLE AND A DENIAL OF DUE PROCESS FOR THE APPELLEES'
OFFICIALS TO REVOKE THE LICENSE WITHOUT LAWFUL GROUNDS. 

CALIFORNIA MAY NOT ERECT BARRIERS TO COMMERCE BETWEEN CALIFORNIA AND
TERRITORY SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES
FOR THE PURPOSE OF FIXING THE PRICE AT WHICH HER PRODUCTS ARE SOLD IN
SUCH TERRITORY. 

THE CONDUCT WHICH THE STATUTE ATTEMPTS TO REGULATE IS THE PREPARATION
AND TRANSPORTATION OF MILK WHICH IS TO MOVE OUTSIDE THE STATE; THE
STATUTE EXPRESSLY FORBIDS THE MOVEMENT OF MILK FROM CALIFORNIA INTO THE
FEDERAL ENCLAVE UNLESS THE PRICE AT WHICH IT IS SOLD IN THE ENCLAVE IS
CONSIDERED ADEQUATE BY CALIFORNIA AUTHORITIES TO BUILD UP THE ECONOMY
OF THE STATE.  CALIFORNIA HAS NO MORE AUTHORITY TO REGULATE SUCH
COMMERCE THAN IT WOULD HAVE IF MOFFETT FIELD WERE IN ANOTHER STATE. 

ART. I, SEC. 8, CL. 17 GRANTS TO CONGRESS THE POWER OF "EXCLUSIVE
LEGISLATION" OVER TERRITORY CEDED BY A STATE, AND THIS AUTHORITY IS
ENLARGED BY THE "NECESSARY AND PROPER CLAUSE" TO INCLUDE POWER TO ENACT
ALL APPROPRIATE INCIDENTAL LEGISLATION.  IN RESPECT OF SUCH TERRITORY,
THEREFORE, CONGRESS HAS "THE COMBINED POWERS OF A GENERAL AND OF A
STATE GOVERNMENT."  STOUTENBURGH V. HENNICK, 129 U.S. 141, 147.  IT MAY
REGULATE THE LOCAL AFFAIRS OF A FEDERAL ENCLAVE IN A LOCAL WAY OR IT
MAY EXTEND THE LEGISLATION INTO THE STATES TO ACHIEVE ITS PURPOSES
WHEREVER "NECESSARY AND PROPER."  COHENS V. VIRGINIA, 6 WHEAT.  264,
424-428, 447; O'DONOGHUE V. UNITED STATES, 289 U.S. 516, 538-539. 
CONSEQUENTLY CONGRESS CERTAINLY HAS AN AFFIRMATIVE POWER OVER COMMERCE
BETWEEN A STATE AND A FEDERAL ENCLAVE, WHICH IS AT LEAST AS GREAT AS
ITS POWER OVER COMMERCE BETWEEN TWO STATES.  IT MAY DETERMINE THE TERMS
AND CONDITIONS UPON WHICH GOODS MAY ENTER AND LEAVE AN ENCLAVE AND MAY
REMOVE ANY OBSTRUCTIONS TO THE FLOW OF GOODS INTO AN ENCLAVE EVEN
THOUGH THE OBSTRUCTION EXISTS ON STATE TERRITORY.  MOREOVER, AS
STOUTENBURGH V. HENNICK, SUPRA, SHOWS, THIS POWER IS POSSESSED BY THE
CONGRESS AS PART OF THE POWERS OF THE GENERAL GOVERNMENT AND NOT AS ONE
OF THE POWERS OF A STATE. 

THE GRANT OF AFFIRMATIVE POWER TO CONGRESS TO REGULATE COMMERCE
BETWEEN A STATE AND A FEDERAL ENCLAVE BY IMPLICATION FORBIDS A STATE TO
REGULATE SUCH COMMERCE.  THE POWER OF CONGRESS IS EXCLUSIVE AT LEAST TO
THE SAME EXTENT THAT THE POWER OF CONGRESS OVER COMMERCE BETWEEN TWO
STATES IS EXCLUSIVE. 

THAT THE CALIFORNIA LEGISLATURE REGARDED THE STATUTE AS A MEASURE FOR
PROTECTING THE PUBLIC HEALTH DOES NOT SUSTAIN IT.  AN ARGUMENT BASED
UPON SUCH CONSIDERATIONS WAS MADE BY NEW YORK AND REJECTED IN BALDWIN
V. SEELIG, 294 U.S. 511. 

THE EFFECT ON THE INCOME OF CALIFORNIA PRODUCERS OF SALES IN THE
FEDERAL ENCLAVE AT A COMPETITIVE PRICE IS CERTAINLY MORE REMOTE THAN
THE EFFECT UPON THE NEW YORK FARMER OF THE AVAILABILITY OF CHEAPER MILK
IN VERMONT.  IN CALIFORNIA THE DANGER IS SAID TO BE THAT CALIFORNIA
DEALERS WILL SO IMPOVERISH THEMSELVES BY SELLING MILK AT TOO LOW A
PRICE ON FEDERAL ENCLAVES AS TO DISABLE THEMSELVES FROM COMPLYING WITH
THE STATE LAW FIXING THE PRICE WHICH THEY MUST PAY TO PRODUCERS FOR THE
MILK.  IT HAS BEEN THE JUDGMENT OF CONGRESS AND OF THE DEPARTMENT OF
AGRICULTURE THAT MILK PRICES CAN BE FIXED AND ENFORCED AT THE PRODUCER
LEVEL ALONE.  BUT WHATEVER THE DANGER, IT DOES NOT JUSTIFY CALIFORNIA
IN DEALING WITH A LOCAL PROBLEM WHICH IS AT FIRST ECONOMIC, AND ONLY
INDIRECTLY A MATTER OF PUBLIC HEALTH, BY SEEKING TO "NEUTRALIZE THE
ECONOMIC CONSEQUENCES OF FREE TRADE AMONG THE STATES."  BALDWIN V.
SEELIG, SUPRA, P. 525. 

THE CALIFORNIA LAW IS A VALID EXERCISE OF THE POLICE POWER FOR THE
PROTECTION OF THE HEALTH AND WELFARE OF THE PEOPLE OF THE STATE.  IN RE
WILLING, 12 CAL.2D 591, 594; RAY V. PARKER, 15 CAL.2D 275. 

THE PURPOSE OF THE STATUTE IS TO ELIMINATE ECONOMIC DISTURBANCES AND
UNFAIR PRACTICES, AND TO INSURE TO PRODUCERS THE NECESSARY COSTS OF
PRODUCTION SO THAT AN ADEQUATE SUPPLY OF PURE AND HEALTHFUL MILK MAY BE
ASSURED.  SUCH ECONOMIC SECURITY IS NECESSARY IN ORDER TO MAINTAIN
ESSENTIAL SANITARY STANDARDS.  IN RE WILLING, SUPRA, P. 594. 

THE STATUTE IS NOT PRIMARILY AIMED AT WHAT THE CONSUMER SHALL PAY,
BUT AT WHAT MUST BE RECEIVED IN ORDER TO MAINTAIN AN ADEQUATE SUPPLY OF
PURE AND WHOLESOME MILK.  UNITED MILK PRODUCERS V. CECIL, 47 CAL.
APP.2D 758. 

THE INCIDENCE OF THE STATUTE IS UPON THE DISTRIBUTOR AND NOT UPON THE
GOVERNMENT.  THE LEGISLATION IS NOT AIMED AT THE GOVERNMENT BUT IS
DESIGNED TO MEET A LOCAL SITUATION WHICH, IF LEFT UNREGULATED, PRESENTS
A MENACE TO THE MILK SUPPLY OF THE STATE AND TO THE HEALTH OF ITS
INHABITANTS.  THE STATUTE IN QUESTION IS NOT UNREASONABLE, ARBITRARY,
OR CAPRICIOUS, AND THE MEANS ADOPTED BEAR A REAL AND SUBSTANTIAL
RELATION TO THE OBJECT SOUGHT TO BE ATTAINED.  THE MERE FACT THAT STATE
ACTION MAY HAVE REPERCUSSIONS BEYOND STATE LINES IS OF NO JUDICIAL
SIGNIFICANCE.  NEBBIA V. NEW YORK, 291 U.S. 502; OSBORN V. OZLIN, 310
U.S. 53; ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N, 294 U.S.
532. 

THE STATUTE IS NOT RENDERED INVALID MERELY BECAUSE ITS PRACTICAL
EFFECT MIGHT BE TO INTERFERE TO SOME EXTENT WITH THE FUNCTIONING OF AN
INSTRUMENTALITY OF THE GOVERNMENT, SO LONG AS SUCH INTERFERENCE OR
BURDEN IS REASONABLE.  THE ALLEGED INTERFERENCE HERE IS REASONABLE. 
THE STATUTE DOES NOT DISCRIMINATE AGAINST THE GOVERNMENT, BUT IS
APPLICABLE TO THE STATE ITSELF AND TO ITS POLITICAL SUBDIVISIONS.  IF
THE OBJECTIVES OF THE STATUTE ARE REALIZED, THE GOVERNMENT WILL BENEFIT
IN COMMON WITH THE COMMUNITY IN GENERAL.  MILK CONTROL BOARD V.
GOSSELIN'S DAIRY, 301 MASS. 174; PATERSON MILK & CREAM CO. V. MILK
CONTROL BOARD, 118 N.J.L. 383; JAMES V. DRAVO CONTRACTING CO., 302 U.S.
134. 

THE ONLY SPECIFIC BURDEN CLAIMED TO BE CAST UPON THE GOVERNMENT IS
THAT OF INCREASED COST.  SUCH INCREASED COST "AT MOST GIVES RISE TO A
BURDEN WHICH IS CONSEQUENTIAL AND REMOTE AND NOT TO ONE THAT IS
NECESSARY, IMMEDIATE OR DIRECT."  IT IS MERELY INCIDENTAL TO THE PROPER
EXERCISE OF THE POLICE POWER.  JAMES V. DRAVO CONTRACTING CO., SUPRA;
ALABAMA V. KING & BOOZER, 314 U.S. 1; JAMES STEWART & CO. V. SADRAKULA,
309 U.S. 94. 

THE STATE STATUTE DOES NOT RUN COUNTER TO THE FEDERAL STATUTES
REQUIRING COMPETITIVE BIDDING, SINCE IT FIXES MINIMUM PRICES ONLY. 

THE STATE STATUTE DOES NOT RUN COUNTER TO THE COMMERCE CLAUSE OF THE
FEDERAL CONSTITUTION. 

TO HOLD AT THIS LATE DATE THAT COMMERCE BETWEEN A STATE AND SUCH
FEDERAL AREAS WITHIN THAT STATE IS INTERSTATE COMMERCE, AFTER NEARLY A
CENTURY AND A HALF DURING WHICH THE STATES AND THE FEDERAL GOVERNMENT
HAVE TREATED THAT COMMERCE AS INTRASTATE COMMERCE, WOULD ONLY RESULT IN
UTTER, HOPELESS CONFUSION.  GRAYBURG OIL CO. V. STATE, 286 S.W. (TEX.)
489; GRAYBURG OIL CO. V. STATE, 3 S.W.2D (TEX.) 427; PEOPLE V. STANDARD
OIL CO., 218 CAL. 123. 

EVEN IF IT BE ASSUMED THAT SUCH COMMERCE IS INTERSTATE, AND THAT
UNDER THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937 THE SECRETARY OF
AGRICULTURE HAS THE POWER TO REGULATE THE DISTRIBUTION OF MILK MOVING
INTO SUCH FEDERAL AREAS, THE FACT REMAINS THAT HE HAS NOT EXERCISED
SUCH POWER.  UNDER SUCH CONDITIONS THE STATE IS NOT DEPRIVED OF ITS
POWER UNLESS AND UNTIL CONGRESS HAS ACTUALLY ACTED IN A MANNER HOSTILE
TO OR DIRECTLY IN CONFLICT WITH THE STATE REGULATION.  KELLY V.
WASHINGTON, 302 U.S. 1, 10; ALLEN-BRADLEY LOCAL V. WISCONSIN BOARD, 315
U.S. 740. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT CHALLENGES A JUDGMENT OF THE SUPREME COURT OF
CALIFORNIA  FN1  DISMISSING A WRIT OF ALTERNATIVE MANDAMUS AND DENYING
A PERMANENT WRIT TO PREVENT THE DEPARTMENT OF AGRICULTURE OF THE STATE
FROM CONDUCTING A PROCEEDING TO REVOKE ITS LICENSE AS A DISTRIBUTOR OF
MILK.  THE COURT, IN DENYING RELIEF, OVERRULED SEVERAL CONTENTIONS,
BASED UPON THE FEDERAL CONSTITUTION WHICH ARE HERE RENEWED. 

CHAPTER 10 OF THE AGRICULTURAL CODE OF CALIFORNIA  FN2  PROVIDES A
PLAN FOR THE "STABILIZATION AND MARKETING OF FLUID MILK AND FLUID
CREAM."  IT DECLARES THEIR PRODUCTION AND DISTRIBUTION A BUSINESS
AFFECTED WITH A PUBLIC INTEREST, AND THE REGULATION OF THE BUSINESS AN
EXERCISE OF THE POLICE POWER; STATES THAT EXISTING UNJUST, UNFAIR,
DESTRUCTIVE AND DEMORALIZING PRACTICES MENACE THE HEALTH AND WELFARE OF
THE PEOPLE, DESPITE SANITARY REGULATIONS; AND THAT IT IS NECESSARY TO
PROMOTE INTELLIGENT PRODUCTION AND ORDERLY MARKETING BY ELIMINATING THE
EVIL PRACTICES EXISTING IN THE INDUSTRY. 

THE LAW EMPOWERS THE DIRECTOR OF AGRICULTURE TO LICENSE DISTRIBUTORS
AND TO ESTABLISH MARKETING AREAS WITHIN WHICH UNIFORM PRICES AND
REGULATIONS FOR THE SALE OF MILK SHALL PREVAIL. 

THE APPELLANT WAS A LICENSED DISTRIBUTOR DOING BUSINESS IN THE SANTA
CLARA COUNTY MARKETING AREA, IN WHICH THERE WERE IN EFFECT A
STABILIZATION AND MARKETING PLAN AND SCHEDULES OF MINIMUM WHOLESALE AND
RETAIL PRICES.  IT ENTERED INTO A CONTRACT WITH THE WAR DEPARTMENT OF
THE UNITED STATES, SIGNED BY THE QUARTERMASTER'S DEPARTMENT OF MOFFETT
FIELD, TO SELL MILK TO THE DEPARTMENT AT MOFFETT FIELD, WHICH LIES
WITHIN THE BOUNDARIES OF THE SANTA CLARA COUNTY MARKETING AREA, AT LESS
THAN THE MINIMUM PRICE FIXED FOR THE AREA.  SALES AND DELIVERIES UNDER
THE CONTRACT TOOK PLACE ON MOFFETT FIELD. 

A COMPLAINT WAS FILED WITH THE DEPARTMENT OF AGRICULTURE CHARGING THE
APPELLANT VIOLATED SEC. 736.3(A)(6) OF THE CODE WHICH PROVIDES THAT AN
UNFAIR PRACTICE, WARRANTING REVOCATION OF LICENSE OR PROSECUTION IS: 

"THE PURCHASING, PROCESSING, BOTTLING, TRANSPORTING, DELIVERING OR
OTHERWISE HANDLING IN ANY MARKETING AREA OF ANY FLUID MILK OR FLUID
CREAM WHICH IS TO BE OR IS SOLD OR OTHERWISE DISPOSED OF BY SUCH
DISTRIBUTOR AT ANY PLACE IN THE GEOGRAPHICAL AREA WITHIN THE OUTER,
OUTSIDE AND EXTERNAL BOUNDARIES OR LIMITS OF SUCH MARKETING AREA,
WHETHER SUCH PLACE IS A PART OF THE MARKETING AREA OR NOT, AT LESS THAN
THE MINIMUM WHOLESALE AND MINIMUM RETAIL PRICES EFFECTIVE IN SUCH
MARKETING AREA." 

THIS SECTION DID NOT APPEAR IN THE CODE UNTIL 1941,  FN3  WHEN IT WAS
ADDED AS AN AMENDMENT.  CALIFORNIA RECOGNIZED ITS LACK OF POWER TO FIX
RETAIL PRICES FOR MILK SOLD WITHIN FEDERAL ENCLAVES LOCATED IN THE
STATE.  FN4  BUT THE LEGISLATURE DESIRED TO ACCOMPLISH THIS.  IN 1941
IT MEMORIALIZED CONGRESS, REQUESTING PASSAGE OF A FEDERAL LAW REQUIRING
PURCHASING OFFICERS OF THE ARMED SERVICES PURCHASING FOOD SUPPLIES FOR
TROOPS OR AGENCIES OF THE UNITED STATES LOCATED IN THE STATE TO REFUSE
BIDS FOR MILK AT PRICES BELOW THOSE FIXED UNDER THE CALIFORNIA MILK
STABILIZATION LAW OR AMENDMENTS THEREOF.  FN5  THE MEMORIAL WAS
REFERRED TO THE COMMITTEE ON AGRICULTURE OF THE HOUSE AND TO THE
COMMITTEE ON AGRICULTURE AND FORESTRY OF THE SENATE,  FN6  BUT WAS
NEVER ACTED UPON BY EITHER COMMITTEE.  CONGRESS HAVING FAILED TO ACT,
SEC. 736.3(A)(6) AND OTHERS WERE ADDED TO THE CODE, JULY 16, 1941, FOR
THE PURPOSE OF REACHING SALES ON FEDERALLY OWNED LANDS.    MOFFETT
FIELD WAS ACQUIRED BY THE UNITED STATES UNDER AN ACT OF CONGRESS,  FN7
AND IT IS CONCEDED THAT IT HAS ALWAYS BEEN UNDER THE EXCLUSIVE
JURISDICTION OF THE FEDERAL GOVERNMENT.  FN8 

THE APPELLANT SOUGHT A WRIT OF MANDAMUS FROM THE COURT BELOW TO
RESTRAIN THE DEPARTMENT OF AGRICULTURE FROM PROCEEDING TO HEAR AND ACT
UPON THE PENDING COMPLAINT.  AN ALTERNATIVE WRIT ISSUED.  AFTER RETURN
BY THE APPELLEES, SETTING UP ONLY THAT THE COMPLAINT FAILED TO STATE
FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION, THE COURT DISCHARGED
THE ALTERNATIVE WRIT AND DENIED A PREEMPTORY WRIT.  THE FACTS WE HAVE
RECITED APPEAR IN THE PETITION FOR THE WRIT OR ARE MATTERS OF WHICH THE
COURT BELOW AND THIS COURT TAKE JUDICIAL NOTICE. 

THE SUPREME COURT OF CALIFORNIA OVERRULED THE APPELLANT'S CONTENTIONS
THAT THE STATE'S CONCEDED CONTROL OF ACTIVITIES WITHIN ITS JURISDICTION
GAVE IT NO AUTHORITY TO PENALIZE TRANSACTIONS OCCURRING ON MOFFETT
FIELD; THAT THE STATE LAW VIOLATES THE COMMERCE CLAUSE OF ARTICLE I,
SEC. 8 OF THE FEDERAL CONSTITUTION; THAT IT RUNS AFOUL OF CONGRESSIONAL
ACTION EMBODIED IN THE FEDERAL AGRICULTURAL MARKETING AGREEMENT ACT,
FN9  AND THAT IT UNLAWFULLY BURDENS A FEDERAL INSTRUMENTALITY.  WE FIND
IT NECESSARY TO CONSIDER ONLY THE CONTENTION FIRST STATED. 

THE EXCLUSIVE CHARACTER OF THE JURISDICTION OF THE UNITED STATES ON
MOFFETT FIELD IS CONCEDED.  ARTICLE I, SEC. 8, CLAUSE 17 OF THE
CONSTITUTION OF THE UNITED STATES DECLARES THE CONGRESS SHALL HAVE
POWER "TO EXERCISE EXCLUSIVE LEGISLATION IN ALL CASES WHATSOEVER, OVER"
THE DISTRICT OF COLUMBIA, "AND TO EXERCISE LIKE AUTHORITY OVER ALL
PLACES PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE STATE IN
WHICH THE SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES,
ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL BUILDINGS; ...  " 

WHEN THE FEDERAL GOVERNMENT ACQUIRED THE TRACT, LOCAL LAW NOT
INCONSISTENT WITH FEDERAL POLICY REMAINED IN FORCE UNTIL ALTERED BY
NATIONAL LEGISLATION.  FN10  THE STATE STATUTE INVOLVED WAS ADOPTED
LONG AFTER THE TRANSFER OF SOVEREIGNTY AND WAS WITHOUT FORCE IN THE
ENCLAVE.  IT FOLLOWS THAT CONTRACTS TO SELL AND SALES CONSUMMATED
WITHIN THE ENCLAVE CANNOT BE REGULATED BY THE CALIFORNIA LAW.  TO HOLD
OTHERWISE WOULD BE TO AFFIRM THAT CALIFORNIA MAY IGNORE THE
CONSTITUTIONAL PROVISION THAT "THIS CONSTITUTION, AND THE LAWS OF THE
UNITED STATES WHICH SHALL BE MADE IN PURSUANCE THEREOF; ...  SHALL BE
THE SUPREME LAW OF THE LAND; ... "  FN11  IT WOULD BE A DENIAL OF THE
FEDERAL POWER "TO EXERCISE EXCLUSIVE LEGISLATION."  FN12  AS RESPECTS
SUCH FEDERAL TERRITORY CONGRESS HAS THE COMBINED POWERS OF A GENERAL
AND A STATE GOVERNMENT.  FN13 

THE ANSWER OF THE STATE AND OF THE COURT BELOW IS ONE OF CONFESSION
AND AVOIDANCE,  - CONFESSION THAT THE LAW IN FACT OPERATES TO AFFECT
ACTION BY THE APPELLANT WITHIN FEDERAL TERRITORY, BUT AVOIDANCE OF THE
CONCLUSION OF INVALIDITY BY THE ASSERTION THAT THE LAW IN ESSENCE IS
THE REGULATION OF CONDUCT WHOLLY WITHIN THE STATE'S JURISDICTION. 

THE COURT BELOW POINTS OUT THAT THE STATUTE REGULATES ONLY THE
CONDUCT OF CALIFORNIA'S CITIZENS WITHIN ITS OWN TERRITORY; THAT IT IS
THE PURCHASING, HANDLING, AND PROCESSING BY THE APPELLANT IN CALIFORNIA
OF MILK TO BE SOLD BELOW THE FIXED PRICE - NOT THE SALE ON MOFFETT
FIELD - WHICH IS PROHIBITED, AND ENTAILS THE PENALTIES PRESCRIBED BY
THE STATUTE.  AND RELIANCE IS PLACED UPON THE SETTLED DOCTRINE THAT A
STATE IS NOT DISENABLED FROM POLICING ITS OWN CONCERNS, BY THE MERE
FACT THAT ITS REGULATIONS MAY BEGET EFFECTS ON THOSE LIVING BEYOND ITS
BORDERS.  FN14  WE THINK, HOWEVER, THAT IT IS WITHOUT APPLICATION HERE,
BECAUSE OF THE AUTHORITY GRANTED THE FEDERAL GOVERNMENT OVER MOFFETT
FIELD. 

IN THE LIGHT OF THE HISTORY OF THE LEGISLATION, WE ARE CONSTRAINED TO
FIND THAT THE TRUE PURPOSE WAS TO PUNISH CALIFORNIA'S OWN CITIZENS FOR
DOING IN EXCLUSIVELY FEDERAL TERRITORY WHAT BY THE LAW OF THE UNITED
STATES WAS THERE LAWFUL, UNDER THE GUISE OF PENALIZING PREPARATORY
CONDUCT OCCURRING IN THE STATE,  - TO PUNISH THE APPELLANT FOR A
TRANSACTION CARRIED ON UNDER SOVEREIGNTY CONFERRED BY ART. I, SEC. 8,
CLAUSE 17 OF THE CONSTITUTION, AND UNDER AUTHORITY SUPERIOR TO THAT OF
CALIFORNIA BY VIRTUE OF THE SUPREMACY CLAUSE. 

WE HAVE THIS DAY HELD IN PENN DAIRIES V. MILK CONTROL COMMISSION,
ANTE, P. 261, THAT A DIFFERENT DECISION IS REQUIRED WHERE THE CONTRACT
AND THE SALES OCCUR WITHIN A STATE'S JURISDICTION, ABSENT SPECIFIC
NATIONAL LEGISLATION EXCLUDING THE OPERATION OF THE STATE'S REGULATORY
LAWS.  THE CONCLUSIONS MAY SEEM CONTRADICTORY; BUT IN PRESERVING THE
BALANCE BETWEEN NATIONAL AND STATE POWER, SEEMINGLY INCONSEQUENTIAL
DIFFERENCES OFTEN REQUIRE DIVERSE RESULTS.  THIS MUST BE SO, IF WE ARE
TO ACCORD TO VARIOUS PROVISIONS OF FUNDAMENTAL LAW THEIR NATURAL EFFECT
IN THE CIRCUMSTANCES DISCLOSED.  SO TO DO IS NOT TO MAKE SUBTLE OR
TECHNICAL DISTINCTIONS OR TO DEAL IN LEGAL REFINEMENTS.  HERE WE ARE
BOUND TO RESPECT THE RELEVANT CONSTITUTIONAL PROVISION WITH RESPECT TO
THE EXCLUSIVE POWER OF CONGRESS OVER FEDERAL LANDS.  AS CONGRESS MAY,
IF IT FIND THE NATIONAL INTEREST SO REQUIRES, OVERRIDE THE STATE MILK
LAW OF PENNSYLVANIA AS RESPECTS PURCHASES FOR THE ARMY, SO IT MAY, IF
NOT INIMICAL TO THE SAME INTEREST SUBJECT ITS PURCHASING OFFICERS ON
MOFFETT FIELD TO THE RESTRICTIONS OF THE MILK LAW OF CALIFORNIA.  UNTIL
IT SPEAKS WE SHOULD ENFORCE THE LIMITS OF POWER IMPOSED BY THE
PROVISIONS OF THE FUNDAMENTAL LAW. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  19 CAL.2D 818, 123 P.2D 442. 

FN2  DEERING, 1937, DIV. 4, C. 10, SECS. 735-738, AS AMENDED,
DEERING, 1941 SUPP., PP. 462-467. 

FN3  CAL. STATS. 1941, CHAP. 1214, P. 3008. 

FN4  OPINIONS OF CALIFORNIA ATTY.-GEN.  N.S. 1905, N.S. 1950(1939);
CONSOLIDATED MILK PRODUCERS V. PARKER, 19 CAL.2D 815, 123 P.2D 440; CF.
STANDARD OIL CO. V. CALIFORNIA, 291 U.S. 242. 

FN5  CAL. STATS. 1941, CHAP. 65, P. 3402. 

FN6  87 CONG. REC., PART 5, 5644, 5698. 

FN7  ACT OF FEBRUARY 12, 1931, C. 122, 46 STAT. 1092.  THIS ACT
PROVIDES THAT THE TRACT WHICH IS NOW CALLED MOFFETT FIELD SHALL BE
ACCEPTED BY THE UNITED STATES WITHOUT COST TO THE GOVERNMENT.  THE
PETITION FOR MANDAMUS ALLEGES THAT, MORE THAN FIFTEEN YEARS AGO,
MOFFETT FIELD "WAS PURCHASED BY THE GOVERNMENT OF THE UNITED STATES FOR
ERECTING FORTS, MAGAZINES, ARSENALS, DOCKYARDS AND OTHER NEEDFUL
BUILDINGS.  ...  "  THE APPELLANT AND THE GOVERNMENT TREAT THIS
ALLEGATION AS CONCLUSIVE, SINCE IT WAS NOT DENIED BY THE APPELLEES. 
NOTHING TURNS, IN OUR VIEW, ON THE METHOD OF ACQUISITION. 

FN8  SEE CAL. STATS. 1897, P. 51; POLITICAL CODE OF CALIFORNIA, SEC.
34; U.S. CONSTITUTION, ART. I, SEC. 8, CLAUSE 17. 

FN9  50 STAT. 246, 7 U.S.C. 608C. 

FN10  STEWART & CO. V. SADRAKULA, 309 U.S. 94, 99. 

FN11  ART. VI, CLAUSE 2. 

FN12  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 141. 

FN13  STOUTENBURGH V. HENNICK, 129 U.S. 141, 147. 

FN14  ALASKA PACKERS ASSN. V. COMMISSION, 294 U.S. 532, 541; OSBORN
V. OZLIN, 310 U.S. 53, 62-63. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON: 

WHILE WE HAVE JOINED IN THE OPINION OF THE COURT, WE ARE ALSO OF THE
VIEW THAT THE JUDGMENT BELOW SHOULD BE REVERSED FOR THE ADDITIONAL
REASON SET FORTH IN THE DISSENTING OPINION IN PENN DAIRIES V. MILK
CONTROL COMMISSION, ANTE, P. 261. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

BOTH PENNSYLVANIA AND CALIFORNIA, AS PART OF THEIR CONTROL OVER THE
SUPPLY AND DISTRIBUTION OF MILK FOR THE NEEDS OF THEIR PEOPLE, REGULATE
THE PRICES AT WHICH MILK MAY BE SOLD WITHIN THE STATE.  IN BOTH STATES,
MORE PARTICULARLY AT INDIANTOWN GAP MILITARY RESERVATION, PENNSYLVANIA,
AND AT MOFFETT FIELD, CALIFORNIA, UNITS OF THE UNITED STATES ARMY ARE
STATIONED.  AT EACH OF THESE SITES THE CONTRACTING OFFICER, A JUNIOR
OFFICER IN THE QUARTERMASTER CORPS, INVITES BIDS FOR THE SALE OF MILK
TO THE ARMY.  ARE THESE TWO CONTRACTING OFFICERS AUTHORIZED UNDER
EXISTING FEDERAL LAW TO ACCEPT BIDS THAT UNDERCUT THE PRICES FIXED BY
PENNSYLVANIA AND CALIFORNIA FOR THE SUPPLY OF MILK WITHIN THEIR BORDERS
AND THEREBY DISLOCATE, IN PART AT LEAST, THE REGULATORY SYSTEMS
ESTABLISHED BY THE TWO STATES? 

IN PENN DAIRIES V. MILK CONTROL COMMISSION, ANTE, P. 261, PENN
DAIRIES, A MILK DEALER OF LANCASTER, PENNSYLVANIA, SUPPLIED MILK FOR
THE USE OF THE ARMY AT INDIANTOWN GAP MILITARY RESERVATION.  THEIR
SALES WERE THE RESULT OF SUCCESSFUL BIDDING AT PRICES BELOW THE MINIMA
FIXED BY THE PENNSYLVANIA MILK CONTROL LAW.  SUBSEQUENTLY, WHEN PENN
DAIRIES APPLIED FOR RENEWAL OF ITS LICENSE TO DO BUSINESS UNDER STATE
LAW, THE PENNSYLVANIA MILK CONTROL COMMISSION DENIED THE APPLICATION ON
THE GROUND THAT THE SALES TO THE ARMY WERE NOT IMMUNE FROM THE MINIMUM
PRICE PROVISIONS OF THE PENNSYLVANIA LAW.  THE PENNSYLVANIA SUPREME
COURT SUSTAINED THIS DETERMINATION. 

IN THIS CASE, PACIFIC COAST DAIRY, A MILK DEALER OF SAN FRANCISCO,
CALIFORNIA, SUPPLIED MILK FOR THE USE OF THE ARMY AT MOFFETT FIELD,
ABOUT THIRTY-FIVE MILES FROM SAN FRANCISCO.  THEIR SALES, TOO, WERE THE
RESULT OF SUCCESSFUL BIDDING AT PRICES BELOW THOSE FIXED BY CALIFORNIA
LAW.  FOR THUS DEPARTING FROM THE PRICE PROVISIONS OF THE STATE LAW
UNDER WHICH IT WAS LICENSED TO DO BUSINESS, THE CALIFORNIA DEPARTMENT
OF AGRICULTURE INSTITUTED PROCEEDINGS TO REVOKE PACIFIC COAST DAIRY'S
LICENSE.  TO STAY THESE PROCEEDINGS THE DAIRY SOUGHT A WRIT OF
MANDAMUS, WHICH WAS DENIED BY THE SUPREME COURT OF CALIFORNIA. 

IN MY VIEW, THE COURT IN UPHOLDING THE REFUSAL BY PENNSYLVANIA TO
RENEW A LICENSE BECAUSE OF AN ARRANGEMENT MADE ON BEHALF OF THE
GOVERNMENT MUST IMPLY THAT THE CONTRACTING OFFICER OF THE INDIANTOWN
MILITARY GAP RESERVATION WAS NOT AUTHORIZED TO ACCEPT BIDS BELOW THE
MINIMUM PRICE REQUIREMENTS SET BY PENNSYLVANIA FOR THE SALE OF MILK
WITHIN THE STATE.  IN THE CALIFORNIA CASE, HOWEVER, THE COURT HOLDS
THAT THE CONTRACTING OFFICER FOR MOFFETT FIELD MAY, IN THE CASE OF
SALES AND DELIVERIES MADE ON MOFFETT FIELD, CONTRACT AT PRICES BELOW
THOSE FIXED BY CALIFORNIA FOR THE SALE OF MILK WITHIN ITS BORDERS. 
OPPOSITE LEGAL RESULTS ARE THUS REACHED FOR PRECISELY THE SAME
PRACTICAL SITUATIONS.  THE JUSTIFICATION FOR THIS INCONGRUITY IN
DEFINING THE SCOPE OF THE AUTHORITY OF THE TWO CONTRACTING OFFICERS IS
ATTRIBUTED TO THE DIFFERENCE IN THE NATURE OF THE GOVERNMENT'S
PROPRIETARY INTEREST IN EACH OF THE TWO ARMY SITES.  INDIANTOWN GAP
MILITARY RESERVATION IS HELD BY THE UNITED STATES UNDER LEASE FROM THE
COMMONWEALTH OF PENNSYLVANIA.  MOFFETT FIELD BELONGS TO THE UNITED
STATES OUTRIGHT.  ON THE BASIS OF THIS DIFFERENCE IN THE FEDERAL
GOVERNMENT'S PROPRIETARY INTEREST IN THE TWO ARMY FACILITIES,
INDIANTOWN GAP MILITARY RESERVATION IS DEEMED NOT TO BE WITHIN THE
"EXCLUSIVE JURISDICTION" OF THE GOVERNMENT WHILE MOFFETT FIELD IS
DEEMED WITHIN SUCH "EXCLUSIVE JURISDICTION."  AND FROM THIS
CLASSIFICATION IT IS DEDUCED THAT MILK SOLD TO THE ARMY FOR THE USE OF
OUR SOLDIERS AT INDIANTOWN GAP MILITARY RESERVATION MUST COMPLY WITH
THE PRICE PROVISIONS OF PENNSYLVANIA LAW, BUT THAT MILK MAY BE SOLD TO
THE ARMY FOR THE USE OF OUR SOLDIERS AT MOFFETT FIELD IN DISREGARD OF
THE MINIMUM PRICES SET BY CALIFORNIA. 

LEGAL REFINEMENTS ARE NOT ALWAYS THE WORSE FOR ELUDING THE QUICK
UNDERSTANDING OF A LAYMAN.  BUT I DO NOT BELIEVE THAT IN DETERMINING
THE DUTY OF CONTRACTING OFFICERS SERVING THE SAME ARMY FUNCTION - A
MATTER THAT TURNS ON CONSIDERATIONS OF POLICY IN THE RELATION OF THE
VARIOUS ARMY POSTS TO THE STATES IN WHICH THEY ARE SITUATED - LEGAL
CATEGORIES COMPEL A DIFFERENCE IN RESULT WHERE PRACTICAL JUDGMENT AND
EXPERIENCE LEAD TO AN IDENTITY IN RESULT.  THE POWER GIVEN TO CONGRESS
BY ARTICLE I, SEC. 8 OF THE CONSTITUTION, TO "EXERCISE EXCLUSIVE
LEGISLATION" OVER FEDERAL ENCLAVES IS NOT SO TYRANNICAL AS TO PRECLUDE
IN LAW WHAT GOOD SENSE REQUIRES. 

THE SO-CALLED EXCLUSIVE JURISDICTION DRAWN FROM THE GRANT TO CONGRESS
OF POWER TO LEGISLATE EXCLUSIVELY HAS, AS A MATTER OF HISTORICAL FACT,
BECOME INCREASINGLY LESS AND LESS EXCLUSIVE.  IN EARLY DAYS WHEN THE
ACTIVITIES OF THE FEDERAL GOVERNMENT MADE ONLY NEGLIGIBLE INROADS UPON
TERRITORIAL AREAS WITHIN THE STATES, IT WAS ASSUMED THAT FEDERAL
EXCLUSIVENESS WAS A FACT RATHER THAN A POTENTIALITY, AND THAT THE
STATES WERE PRECLUDED FROM RESERVING AUTHORITY IN LANDS WITHIN THE
STATE WHICH WERE CEDED TO THE GOVERNMENT.  BUT THIS NOTION NEVER BECAME
LAW, AND HAS NOW BEEN FORMALLY REPUDIATED.  "THE POSSIBLE IMPORTANCE OF
RESERVING TO THE STATE JURISDICTION FOR LOCAL PURPOSES WHICH INVOLVE NO
INTERFERENCE WITH THE PERFORMANCE OF GOVERNMENTAL FUNCTIONS IS BECOMING
MORE AND MORE CLEAR AS THE ACTIVITIES OF THE GOVERNMENT EXPAND AND
LARGE AREAS WITHIN THE STATES ARE ACQUIRED."  JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, 148; AND SEE SILAS MASON CO. V. TAX
COMM'N, 302 U.S. 186.  INDEED, IN THE CASE OF MOFFETT FIELD ITSELF THE
AUTHORITY OF THE UNITED STATES IS NOT IN ANY TRUE SENSE EXCLUSIVE, EVEN
AS TO MATTERS OF POLITICAL AUTHORITY, FOR CALIFORNIA'S ACT OF CESSION
PROVIDED THAT BOTH CRIMINAL AND CIVIL PROCESS ISSUED BY CALIFORNIA
SHOULD HAVE THE SAME SANCTION ON MOFFETT FIELD AS ELSEWHERE IN THE
STATE. 

SINCE EXCLUSIVE AUTHORITY NEED NOT BE EXERCISED BY CONGRESS, THERE IS
AT TIMES "UNCERTAINTY AND CONFUSION" WHETHER JURISDICTION BELONGS TO
THE FEDERAL GOVERNMENT OR HAS BEEN LEFT WITH THE STATE.  BOWEN V.
JOHNSTON, 306 U.S. 19, 27.  AND ALTHOUGH THE ACTS OF CESSION MAY LEAVE
"NO ROOM FOR DOUBT" THAT "JURISDICTION" "REMAINED WITH THE STATE,"
"ADMINISTRATIVE CONSTRUCTION" MAY NEVERTHELESS GENERATE FEDERAL
JURISDICTION. ID., AT 29.  EVEN WHERE THE FEDERAL GOVERNMENT SUPPOSEDLY
HAS "EXCLUSIVE" JURISDICTION, A CLOSE EXAMINATION OF COMPLICATED
LEGISLATION MAY UPHOLD EXCISE TAX PROVISIONS OF A STATE ALCOHOLIC
BEVERAGE CONTROL LAW BUT NOT PROVISIONS THAT "GO BEYOND AIDS TO THE
COLLECTION OF TAXES AND ARE TRULY REGULATORY IN CHARACTER."  COLLINS V.
YOSEMITE PARK CO., 304 U.S. 518, 533.  AND WHILE LIP SERVICE IS PAID TO
THE DOCTRINE OF "EXCLUSIVE JURISDICTION" BY PROFESSING TO ABSORB FOR
FEDERAL ENCLAVES THOSE LAWS OF THE STATE WHICH WERE ENFORCED THERE
PRIOR TO ITS CESSION, THE LIBERALITY WITH WHICH STATE SOCIAL MEASURES
ARE DEEMED NOT TO IMPINGE UPON THE NATIONAL PURPOSES FOR WHICH THE
ENCLAVE WAS ESTABLISHED, IS A RECOGNITION IN FACT THAT THE CONSTITUTION
PERMITS SENSIBLE ADJUSTMENTS BETWEEN STATE AND FEDERAL AUTHORITY
ALTHOUGH ACTIVITIES SUBJECT TO LEGAL CONTROL TAKE PLACE ON FEDERAL
TERRITORY WITHIN A STATE.  SEE, E.G., STEWART & CO. V. SADRAKULA, 309
U.S. 94. 

ENOUGH HAS BEEN SAID TO SHOW THAT THE DOCTRINE OF "EXCLUSIVE
JURISDICTION" OVER FEDERAL ENCLAVES IS NOT AN IMPERATIVE.  THE PHRASE
IS INDEED A MISNOMER FOR THE MANIFOLD LEGAL PHASES OF THE DIVERSE
SITUATIONS ARISING OUT OF THE EXISTENCE OF FEDERALLY-OWNED LANDS WITHIN
A STATE - PROBLEMS CALLING NOT FOR A SINGLE, SIMPLE ANSWER BUT FOR
DISPOSITION IN THE LIGHT OF THE NATIONAL PURPOSES WHICH AN ENCLAVE
SERVES.  IF CONGRESS SPEAKS, STATE POWER IS OF COURSE DETERMINED BY
WHAT CONGRESS SAYS.  IF CONGRESS MAKES THE LAW OF THE STATE IN WHICH
THERE IS A FEDERAL SITE AS FOREIGN THERE AS IS THE LAW OF CHINA, THEN
FEDERAL JURISDICTION WOULD REALLY BE EXCLUSIVE.  BUT SHORT OF SUCH
CONGRESSIONAL ASSERTION OF OVERRIDING AUTHORITY, THE PHRASE "EXCLUSIVE
JURISDICTION" MORE OFTEN CONFOUNDS THAN SOLVES PROBLEMS DUE TO OUR
FEDERAL SYSTEM. 

IT IS CERTAINLY AN IRRELEVANT FACTOR IN THE LEGAL EQUATION BEFORE US.
FOR IN NEITHER THE PENNSYLVANIA NOR THE CALIFORNIA CASE IS THE POWER
OF CONGRESS OR OF APPROPRIATELY EXERCISED MILITARY AUTHORITY CALLED
INTO QUESTION.  AS TO PENNSYLVANIA, THE COURT HAS FOUND THAT NEITHER
CONGRESSIONAL LEGISLATION NOR DISCERNIBLE LEGISLATIVE POLICY IMMUNIZED
A GOVERNMENT CONTRACTOR FROM STATE REGULATION.  OF COURSE, IF
CONGRESSIONAL POLICY, HOWSOEVER EXPRESSED, AUTHORIZED THE QUARTERMASTER
TO ENTER INTO SUCH A CONTRACT IN DISREGARD OF LOCAL MILK PRICE CONTROL
LEGISLATION, THE CONTRACTOR WOULD BE IMMUNE FROM OBEDIENCE TO LOCAL
REQUIREMENTS.  NOR HAS CONTROLLING ASSERTION OF MILITARY AUTHORITY TO
DISREGARD LOCAL PRICE CONTROL BEEN FOUND.  THERE IS NO SUGGESTION THAT
CONGRESS OR THE ARMY HAS A POLICY REGARDING THE PURCHASE OF MILK FOR
SOLDIERS STATIONED IN CALIFORNIA WHICH DIFFERS FROM THAT IN
PENNSYLVANIA.  STATE REGULATION, WE HAVE HELD IN THE CASE OF
PENNSYLVANIA, "IMPOSES NO PROHIBITION ON THE NATIONAL GOVERNMENT OR ITS
OFFICERS."  NEITHER DOES THE CALIFORNIA REGULATION.  IT CLEARLY DOES
NOT AS TO FEDERAL SITES IN CALIFORNIA WHICH HAVE BEEN LEASED TO THE
GOVERNMENT, LIKE THE INDIANTOWN GAP MILITARY RESERVATION, OR TO SITES
WHERE THE STATE HAS RESERVED CONCURRENT JURISDICTION, LIKE THOSE IN THE
DRAVO AND MASON CASES, SUPRA, OR TO FEDERAL TERRITORY WHERE
JURISDICTION IS DOUBTFUL OR AMBIGUOUS, LIKE THE RESERVATION IN BOWEN V.
JOHNSTON, SUPRA.  THE CALIFORNIA SUPREME COURT ADVISES US THAT WITHIN
THE CONFINES OF CALIFORNIA THE UNITED STATES IS ENGAGED IN A GREAT
VARIETY OF ACTIVITIES:  "THE FEDERAL TERRITORY WITHIN THE STATE IS SO
FRAGMENTED THAT THERE MAY BE SEVERAL FEDERAL ISLANDS WITHIN A SINGLE
MARKETING AREA.  IF THEY ARE CITADELS OF IMMUNITY FROM STATE
JURISDICTION, THEY ARE ALSO EXCEPTIONAL SEGMENTS IN AREAS THAT ARE
OTHERWISE SUBJECT TO THAT JURISDICTION.  THEY STAND OUT LIKE COLORED
PINS ON THE MAP OF CALIFORNIA, AND RANGE FROM MILITARY RESERVATIONS TO
SOLDIERS' HOMES, FROM COURT HOUSES TO PENITENTIARIES, FROM POST OFFICES
TO INDIAN RESERVATIONS, FROM NATIONAL PARKS TO REGIONAL DAMS."  19
CAL.2D 818, 828. 

CAN IT BE THAT THE CONSIDERATIONS OF POLICY WHICH RESULTED IN A
FINDING THAT NEITHER THE CONSTITUTION NOR CONGRESSIONAL AUTHORITY NOR
APPROPRIATE MILITARY REGULATION ENABLED THE ARMY CONTRACTING OFFICER IN
PENNSYLVANIA, IN SUPPLYING MILK TO THE SOLDIERS STATIONED IN
PENNSYLVANIA, TO FREE LOCAL DEALERS FROM THE NECESSITY OF COMPLYING
WITH A SOCIAL MEASURE NOT UNRELATED TO HEALTH AND DEEMED IMPORTANT TO
THE WELFARE OF THE PEOPLE OF PENNSYLVANIA, ARE PRESENT IN SOME PARTS OF
CALIFORNIA AND NOT IN OTHERS?  AND MUST A JUNIOR CONTRACTING OFFICER OF
THE QUARTERMASTER CORPS NOW ATTEMPT TO ASCERTAIN WHETHER THESE
CONSIDERATIONS OF POLICY DO OR DO NOT APPLY, DEPENDING UPON WHETHER THE
PARTICULAR ENCLAVE IS WITHIN THE "EXCLUSIVE JURISDICTION" OF THE
FEDERAL GOVERNMENT - A QUESTION SO RECONDITE, AS THE CASES SHOW, THAT
IT MAY BE SETTLED ONLY BY THIS COURT AFTER LONG TRAVAIL?  IS THE RESULT
TO TURN UPON THE NICETIES OF THE LAW OF SALES AND CONTRACTS?  SUPPOSE,
FOR EXAMPLE, THAT THE NEGOTIATIONS OCCUR AND THE CONTRACTS ARE SIGNED
OFF MOFFETT FIELD, BUT DELIVERY TAKES PLACE THERE.  MUST INQUIRY BE
MADE AS TO WHERE TITLE HAS "PASSED" AND THE SALE CONSUMMATED? 

THESE ARE NOT FAR-FETCHED SUPPOSITIONS.  THEY ARE THE INEVITABLE
PRACTICAL CONSEQUENCES OF MAKING DECISION HERE DEPEND UPON
TECHNICALITIES OF "EXCLUSIVE JURISDICTION" - LEGAL SUBTLETIES WHICH MAY
BECOME RELEVANT IN DEALING WITH PROSECUTION FOR CRIME, DEVOLUTION OF
PROPERTY, LIABILITY FOR TORTS, AND THE LIKE, BUT WHICH AS A MATTER OF
GOOD SENSE SURELY ARE WHOLLY IRRELEVANT IN DEFINING THE DUTY OF
CONTRACTING OFFICERS OF THE UNITED STATES IN MAKING CONTRACTS IN THE
VARIOUS STATES OF THE UNION, WHERE NEITHER CONGRESS NOR THE
AUTHORITATIVE VOICE OF THE ARMY HAS SPOKEN.  IN THE ABSENCE OF SUCH
ASSERTION OF SUPERIOR AUTHORITY, STATE LAWS SUCH AS THOSE HERE UNDER
CONSIDERATION APPEAR, AS A MATTER OF SOUND PUBLIC POLICY, EQUALLY
APPROPRIATE WHETHER THE FEDERAL TERRITORY ENCYSTED WITHIN A STATE BE
HELD ON LONG OR SHORT TERM LEASE OR BE OWNED BY THE GOVERNMENT ON
WHATEVER TERMS OF CESSION MAY HAVE BEEN IMPOSED. 

WE ARE NOT DEALING HERE WITH THE AUTHORITY OF CONGRESS, ABOUT WHICH
THERE CAN BE NO CONTROVERSY, BUT WITH THE AUTHORITY OF GOVERNMENT
CONTRACTING OFFICERS.  IT IS SURELY THE POLICY OF NEITHER CONGRESS NOR
THE ARMY THAT SUCH AUTHORITY SHOULD VARY FROM STATE TO STATE OR FROM
POST TO POST WITHIN THE SAME STATE.  ON THE CONTRARY, THERE IS EVERY
REASON FOR ASSUMING THAT, IN THE MATTER HERE INVOLVED, UNIFORMITY
THROUGHOUT THE LAND IS DEEMED AN ESSENTIAL ELEMENT OF THE NATIONAL
POLICY.  SINCE, AS THE COURT HOLDS IN THE PENNSYLVANIA CASE, THE
NATIONAL INTEREST IS FURTHERED RATHER THAN IMPAIRED BY REQUIRING THE
QUARTERMASTER AT THE INDIANTOWN MILITARY RESERVATION TO OBSERVE THE
PENNSYLVANIA MILK CONTROL LAW, THERE IS EVERY REASON WHY THE
QUARTERMASTER AT MOFFETT FIELD SHOULD LIKEWISE OBSERVE THE SIMILAR
CALIFORNIA LAW.  AND SINCE HE SHOULD OBSERVE THE STATE LAW, CALIFORNIA
HAS A RIGHT TO INSIST THAT THE MILK DEALER LICENSED BY IT SHOULD NOT
PARTICIPATE IN A VIOLATION OF THE LAW OF HIS STATE, BY LICENSE FROM
WHICH HE DOES BUSINESS. 

MR. JUSTICE MURPHY, DISSENTING: 

I DISSENT FOR REASONS STATED IN CONCURRENCE IN PENN DAIRIES V. MILK
CONTROL COMMISSION, ANTE, P. 261.  THE FACT THAT MOFFETT FIELD IS A
FEDERAL ENCLAVE INSTEAD OF A LEASEHOLD DOES NOT JUSTIFY DENYING
CALIFORNIA THE POWER TO PROTECT THE PUBLIC HEALTH BY REQUIRING MILK
DEALERS SELLING TO THE UNITED STATES TO RECEIVE A MINIMUM PRICE, A
POWER WHICH WE HAVE TODAY HELD THAT PENNSYLVANIA POSSESSES.  TRUE,
CONGRESS IS GIVEN THE POWER "TO EXERCISE EXCLUSIVE LEGISLATION" OVER
FEDERAL AREAS SUCH AS MOFFETT FIELD (CONSTITUTION, ART. I, SEC. 8, CL.
17), BUT THAT DOES NOT NECESSARILY MEAN THAT THE STATES, NO MATTER WHAT
THEIR INTEREST OR NEED, ARE ABSOLUTELY WITHOUT POWER TO ENACT
LEGISLATION, NOT INCONSISTENT WITH CONGRESSIONAL POLICY OR
CONSTITUTIONAL DICTATES, WHICH WILL APPLY IN SOME MEASURE TO THOSE
AREAS WHICH ARE WITHIN THEIR BOUNDARIES.  BEFORE HOLDING THAT THIS
CLAUSE INVALIDATES IMPORTANT STATE LEGISLATION LIKE THAT NOW BEFORE US,
ESPECIALLY AT A TIME WHEN FEDERAL ACTIVITIES ARE GREATLY EXPANDING AND
VAST AREAS ARE BEING ACQUIRED WITHIN THE STATES BY THE FEDERAL
GOVERNMENT, THE REASONABLENESS AND NECESSITY OF SUCH A DECISION SHOULD
BE THOUGHTFULLY EXAMINED. 

WE DERIVE MUCH OF OUR STRENGTH AS A NATION FROM OUR DUAL SYSTEM OF
FEDERAL GOVERNMENT.  TO PROMOTE THE HARMONIOUS WORKING OF THAT SYSTEM
THE GENERAL CLAUSES OF THE CONSTITUTION WHICH BROADLY DELINEATE THE
BOUNDARIES OF STATE AND NATIONAL POWER SHOULD BE CONSTRUED BY
APPRAISING THE RESPECTIVE STATE AND NATIONAL INTERESTS INVOLVED AND
STRIKING A BALANCE WHICH GIVES APPROPRIATE RECOGNITION TO THE
LEGITIMATE CONCERNS OF EACH GOVERNMENT.  SINCE THOSE BOUNDARIES ARE NOT
ABSOLUTES, THE QUESTION NECESSARILY IS ONE OF REASONABLENESS AND
DEGREE.  CF. HOLMES, J., DISSENTING IN PANHANDLE OIL CO. V. KNOX, 277
U.S. 218, 222, AND AGAIN IN SPRINGER V. PHILIPPINE ISLANDS, 277 U.S.
189, 209-210.  THIS IS THE METHOD WHICH WE HAVE APPLIED IN TESTING
STATE REGULATION OF INTERSTATE COMMERCE,  FN1  AND IT SHOULD GOVERN THE
CONSTRUCTION OF THE "EXCLUSIVE LEGISLATION" CLAUSE.  IF A STATE IS
ACTING IN MATTERS NORMALLY WITHIN ITS COMPETENCE, WITH WHICH IT IS
ESPECIALLY EQUIPPED TO DEAL, TO ACHIEVE IMPORTANT GOVERNMENTAL ENDS
SUCH AS THE PROTECTION OF THE PUBLIC HEALTH AND WELFARE OR THE
MAINTENANCE OF ORDERLY MARKETING CONDITIONS, THE EFFECTS OF ITS ACTION
SHOULD BE ALLOWED TO EXTEND INTO FEDERAL AREAS WITHIN ITS BOUNDARIES
UNLESS INCONSISTENT WITH AN ACT OF CONGRESS OR THE PROVISIONS OR
NECESSARY IMPLICATIONS OF THE CONSTITUTION.  THIS FORMULA ALLOWS THE
STATES TO CARRY OUT IMPORTANT PROGRAMS WHICH MUST BE OF STATE-WIDE
APPLICATION TO BE EFFECTIVE AND ADEQUATELY RECOGNIZES THE PARAMOUNT
CHARACTER OF FEDERAL POWER.  SINCE WE HAVE HELD THE COMPARABLE
PENNSYLVANIA STATUTE DOES NOT CONTRAVENE ANY ACT OF CONGRESS OR THE
CONSTITUTION (PENN DAIRIES V. MILK CONTROL COMMISSION, SUPRA), THE
INSTANT CALIFORNIA LEGISLATION SATISFIES THIS TEST. 

THE "EXCLUSIVE LEGISLATION" CLAUSE HAS NOT BEEN REGARDED AS
ABSOLUTELY EXCLUSORY,  FN2  AND NO CONVINCING REASON HAS BEEN ADVANCED
WHY THE NATURE OF THE FEDERAL POWER IS SUCH THAT IT DEMANDS THAT ALL
STATE LEGISLATION ADOPTED SUBSEQUENT TO THE ACQUISITION OF AN ENCLAVE
MUST HAVE NO APPLICATION IN THE AREA.  IN WAGING WAR UNDER MODERN
CONDITIONS IT IS ESSENTIAL THAT STATE AND NATIONAL, MILITARY AND
CIVILIAN AUTHORITIES, WORK TOGETHER AS A UNIT, EACH COMPLEMENTING THE
OTHERS.  THE STATE GOVERNMENTS HAVE FUNCTIONS TO PERFORM THAT ARE VITAL
TO THE WAR PROGRAM, INCLUDING THOSE FUNCTIONS PERTAINING TO THE PUBLIC
HEALTH.  SO LONG AS THERE IS NO OVERRIDING NATIONAL PURPOSE TO BE
SERVED, NOTHING IS GAINED BY MAKING FEDERAL ENCLAVES THORNS IN THE SIDE
OF THE STATES AND BARRIERS TO THE EFFECTIVE STATE-WIDE PERFORMANCE OF
THOSE FUNCTIONS.  INDEED BOTH THE FEDERAL GOVERNMENT AND THE NATION AS
A WHOLE SUFFER IF THE SOLUTION OF LEGITIMATE MATTERS OF LOCAL CONCERN
IS THUS THWARTED AND LOCAL ANIMOSITY CREATED FOR NO PURPOSE.  A
DISPOSITION ON THE PART OF THE FEDERAL GOVERNMENT OR ITS MILITARY ARM
TO IGNORE LOCAL REGULATIONS SUCH AS THE PRESENT ONE IS NOT ONLY FRAUGHT
WITH DANGER TO THE PUBLIC HEALTH, BUT ALSO MAY CREATE A PUBLIC FEELING
OF DISTRUST WHICH ITSELF WILL HAMPER THE MILITARY EFFORT. 

IF CONGRESS EXERCISES ITS PARAMOUNT LEGISLATIVE POWER OVER MOFFETT
FIELD TO DENY CALIFORNIA THE RIGHT TO DO AS IT HAS SOUGHT TO DO HERE,
THE MATTER IS OF COURSE AT AN END.  BUT UNTIL CONGRESS DOES SO, IT
SHOULD BE THE AIM OF THE FEDERAL MILITARY PROCUREMENT OFFICERS TO
OBSERVE STATUTES SUCH AS THIS ESTABLISHED BY STATE ACTION IN
FURTHERANCE OF THE PUBLIC HEALTH AND WELFARE, AND OTHERWISE SO CONDUCT
THEIR AFFAIRS AS TO PROMOTE PUBLIC CONFIDENCE AND GOOD WILL. 

FN1  WHILE IT IS CONGRESS THAT IS GIVEN THE POWER TO REGULATE
COMMERCE AMONG THE STATES, SOME STATE REGULATION OF THAT COMMERCE IS
PERMISSIBLE.  "WHEN CONGRESS HAS NOT EXERTED ITS POWER UNDER THE
COMMERCE CLAUSE, AND STATE REGULATION OF MATTERS OF LOCAL CONCERN IS SO
RELATED TO INTERSTATE COMMERCE THAT IT ALSO OPERATES AS A REGULATION OF
THAT COMMERCE, THE RECONCILIATION OF THE POWER THUS GRANTED WITH THAT
RESERVED TO THE STATE IS TO BE ATTAINED BY THE ACCOMMODATION OF THE
COMPETING DEMANDS OF THE STATE AND NATIONAL INTERESTS INVOLVED." 
PARKER V. BROWN, 317 U.S. 341, 361-363.  STATE REGULATION IS TO BE
UPHELD IF "UPON A CONSIDERATION OF ALL THE RELEVANT FACTS AND
CIRCUMSTANCES IT APPEARS THAT THE MATTER IS ONE WHICH MAY APPROPRIATELY
BE REGULATED IN THE INTEREST OF THE SAFETY, HEALTH AND WELL-BEING OF
LOCAL COMMUNITIES, AND WHICH, BECAUSE OF ITS LOCAL CHARACTER AND THE
PRACTICAL DIFFICULTIES INVOLVED, MAY NEVER BE ADEQUATELY DEALT WITH BY
CONGRESS."  IBID., P. 362. 

FN2  THE COMMON SENSE VIEW HAS BEEN TAKEN THAT EVEN THOUGH CONGRESS
HAS NOT LEGISLATED TO THAT EFFECT, LOCAL LAW EXISTING AT THE TIME AN
ENCLAVE IS ACQUIRED, WHICH DOES NOT DEFEAT THE NATIONAL PURPOSE,
REMAINS IN EFFECT WITHIN THE ENCLAVE UNTIL ALTERED BY CONGRESS. 
STEWART & CO. V. SADRAKULA, 309 U.S. 94.  AND THE STATES MAY QUALIFY
THEIR CONSENT TO THE FEDERAL GOVERNMENT'S PURCHASE BY RETAINING SOME
MEASURE OF JURISDICTION.  JAMES V. DRAVO CONTRACTING CO., 302 U.S.
134. 
..END :















HELVERING V. SABINE TRANS. CO., 318 U.S. 306 


NO. 518.  ARGUED FEBRUARY 4, 1943.  - DECIDED MARCH 1, 1943.  - 128 F.2D
945, AFFIRMED. 


1.  IN 1937, A CORPORATION PAID DIVIDENDS PARTLY IN ITS OWN PROMISSORY
NOTES.  PURSUANT TO SEC. 27(D) OF THE REVENUE ACT OF 1936, IT CLAIMED
AND WAS ALLOWED, IN RESPECT OF ITS LIABILITY FOR UNDISTRIBUTED PROFITS
TAX, THE FACE AMOUNT OF THE NOTES AS PART OF ITS "DIVIDENDS PAID
CREDIT."  IN 1938, IT RETIRED THE NOTES BY PAYMENT OF THEIR FACE
AMOUNT.  HELD THAT THE AMOUNTS THUS PAID IN RETIRING THE NOTES WERE
INCLUDIBLE IN THE "DIVIDENDS PAID CREDIT" UNDER SEC. 24(A)(4) OF THE
REVENUE ACT OF 1938, AS "AMOUNTS USED  ...  TO PAY OR TO RETIRE
INDEBTEDNESS OF ANY KIND."  P. 310. 

SEC. 27(A)(4). 

2.  TO THE EXTENT THAT ART. 27(A)-3 OF TREASURY REGULATIONS 101
FORBIDS (AS A "DOUBLE CREDIT") THE CREDIT CLAIMED IN THIS CASE, IT IS
INCONSISTENT WITH THE PLAIN TERMS OF THE ACT AND INVALID.  P. 311. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. SABINE TRANSPORTATION
CO., INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 317 U.S. 620, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS SUSTAINING AN ORDER OF THE COMMISSIONER
DISALLOWING A CREDIT IN THE COMPUTATION OF RESPONDENT'S TAX UNDER THE
REVENUE ACT OF 1938. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE CIRCUIT COURT OF APPEALS HELD THE RESPONDENT
ENTITLED TO INCLUDE IN ITS DIVIDENDS PAID CREDIT, PURSUANT TO SEC. 27
FN1  OF THE REVENUE ACT OF 1938, THE AMOUNT PAID TO REDEEM NOTES GIVEN
FOR DIVIDENDS IN A PRIOR YEAR.  FN2  THE CIRCUIT COURT OF APPEALS OF
THE NINTH CIRCUIT HAD HELD TO THE CONTRARY.  FN3  TO RESOLVE THE
CONFLICT WE GRANTED CERTIORARI. 

IN 1937 THE RESPONDENT PAID DIVIDENDS, $30,000 IN CASH AND $530,000
IN ITS TEN YEAR EIGHT PER CENT NOTES.  AS RESPECTS ITS LIABILITY FOR
UNDISTRIBUTED PROFITS TAX, IT CLAIMED AND WAS ALLOWED, PURSUANT TO SEC.
27(D) OF THE REVENUE ACT OF 1936,  FN4  AS PART OF ITS "DIVIDENDS PAID
CREDIT," THE FACE VALUE OF THE NOTES.  IN 1938 THE RESPONDENT PAID OFF
THE NOTES, AND IN ITS RETURN FOR THAT YEAR CLAIMED THE SUM PAID AS A
PART OF ITS "DIVIDENDS PAID CREDIT" UNDER THE REVENUE ACT OF 1938, SEC.
27(A)(4).  FN5  THE COMMISSIONER'S DISALLOWANCE OF THE CLAIM WAS
SUSTAINED BY THE BOARD OF TAX APPEALS, BUT THE CIRCUIT COURT OF APPEALS
REVERSED THE BOARD'S DECISION. 

THE POSITION OF THE PETITIONER IS THAT THE SECOND CREDIT CLAIMED
WOULD DUPLICATE THE EARLIER ONE ALLOWED AND THAT SEC. 27 OF THE REVENUE
ACT OF 1938 DOES NOT PERMIT THE DUPLICATION. 

THE REVENUE ACT OF 1936, BY SEC. 13, IMPOSED ON CORPORATIONS A TAX
RANGING FROM EIGHT TO FIFTEEN PER CENT OF THE SO-CALLED "NORMAL-TAX NET
INCOME," CONSISTING OF NET INCOME LESS CERTAIN PERMITTED DEDUCTIONS. 
IT THEN LAID A GRADUATED SURTAX ON "UNDISTRIBUTED NET INCOME" WHICH IT
DEFINED AS THE ADJUSTED NET INCOME (THE NORMAL-TAX NET INCOME AFTER
CREDITS) LESS THE SO-CALLED "DIVIDENDS PAID CREDIT."  BY SEC. 27 THE
ACT DEFINED THE LATTER AS COMPRISING DIVIDENDS PAID DURING THE TAXABLE
YEAR INCLUDING (27(D)) DIVIDENDS IN OBLIGATIONS OF THE COMPANY TO BE
RECKONED AT FACE VALUE OR MARKET VALUE, WHICHEVER WAS LOWER.  THE
SUBSECTION ALSO PROVIDED THAT, IF SUCH OBLIGATIONS WERE REDEEMED IN ANY
SUBSEQUENT YEAR, THE EXCESS OF THE REDEMPTION PAYMENT OVER THE FAIR
MARKET VALUE OF THE OBLIGATIONS AS OF THE DATE OF THEIR ISSUE SHOULD BE
TREATED AS A DIVIDEND PAID IN THE YEAR OF REDEMPTION. 

THE PURPOSE OF THESE PROVISIONS IS CLEAR AND IS A MATTER OF COMMON
KNOWLEDGE.  CONGRESS DESIRED TO ENCOURAGE THE PAYMENT OF DIVIDENDS SO
THAT THE EARNINGS OF CORPORATIONS MIGHT BE SUBJECTED NOT ONLY TO NORMAL
TAX AS AGAINST THE CORPORATION, BUT ALSO TO TAXATION AS INCOME TO THE
STOCKHOLDERS.  FN6  THE MEANS ADOPTED WAS TO RELIEVE THE CORPORATION
FROM SURTAX TO THE EXTENT OF DIVIDENDS PAID IN CASH OR IN OBLIGATIONS. 
THE LATTER WOULD BE TAXED TO STOCKHOLDERS AT THEIR MARKET VALUE.  IF
THEY WERE REDEEMED IN A LATER YEAR, AT A FIGURE ABOVE SUCH VALUE AS OF
THE DATE OF THEIR ISSUE, THE EXCESS WOULD BE TAXED TO THE HOLDER AS
INCOME TO HIM IN THE YEAR OF REDEMPTION.  FAIRNESS DICTATED THAT IN
SUCH CASE THE CORPORATION SHOULD HAVE A FURTHER DIVIDENDS PAID CREDIT
FOR THIS EXCESS OF VALUE PAID BY IT. 

THE REVENUE ACT OF 1938 ADOPTED A DIFFERENT PLAN OF CORPORATE
TAXATION.  WITH RESPECT TO A CORPORATION HAVING THE AMOUNT OF INCOME
EARNED BY THE RESPONDENT, SEC. 13 IMPOSED A TENTATIVE TAX OF 19% OF
"ADJUSTED NET INCOME," WHICH WAS THE ENTIRE NET INCOME LESS CERTAIN
DEDUCTIONS NOT HERE MATERIAL.  THIS TENTATIVE TAX WAS TO BE REDUCED BY
THE SUM OF TWO DEDUCTIONS.  ONE OF THESE IS NOT IN ISSUE HERE.  THE
OTHER IS 2 1/2% OF THE "DIVIDENDS PAID CREDIT," NOT HOWEVER TO EXCEED 2
1/2% OF THE ADJUSTED NET INCOME.  THE DIVIDENDS PAID CREDIT IS DEFINED
BY SEC. 27.  IT CONSISTS OF FOUR ITEMS, TWO OF WHICH ARE CARRY-OVERS
FROM PREVIOUS YEARS, WHICH NEED NOT CONCERN US; AND TWO OTHERS WHICH
ARE IMPORTANT IN THIS CASE, - FIRST, THE "BASIC SURTAX CREDIT," SEC.
(A)(1), AND, SECONDLY, "AMOUNTS USED  ...  TO PAY OR TO RETIRE
INDEBTEDNESS OF ANY KIND, IF SUCH AMOUNTS ARE REASONABLE WITH RESPECT
TO THE SIZE AND TERMS OF SUCH INDEBTEDNESS," SEC. (A)(4).  FN7
INDEBTEDNESS IS DEFINED AS INDEBTEDNESS EXISTING AT THE CLOSE OF
BUSINESS DECEMBER 31, 1937, AND EVIDENCED BY BOND, NOTE, DEBENTURE,
CERTIFICATE OF INDEBTEDNESS, MORTGAGE OR DEED OF TRUST ISSUED BY THE
CORPORATION AND IN EXISTENCE AT THE CLOSE OF BUSINESS DECEMBER 31,
1937, OR A BILL OF EXCHANGE ACCEPTED PRIOR TO AND IN EXISTENCE AT THAT
TIME.  THE TERM IS FURTHER DEFINED AS COVERING PRINCIPAL ONLY AND NOT
INTEREST THEREON. 

THE BASIC SURTAX CREDIT IS THE SUM OF SEVERAL ITEMS, INCLUDING CASH
DIVIDENDS PAID AND CERTAIN OTHER SPECIFIED CREDITS.  DIVIDENDS IN KIND
ARE TO BE VALUED AND TREATED AS CASH DIVIDENDS.  SUBSECTION (E)
PROVIDES THAT, IN COMPUTING THE BASIC SURTAX CREDIT, A DIVIDEND PAID IN
OBLIGATIONS OF THE CORPORATION SHALL BE TREATED AS A CASH DIVIDEND IN
THE AMOUNT OF THE FACE VALUE OF THE OBLIGATIONS OR THEIR MARKET VALUE,
WHICHEVER IS LOWER, AND THAT, IF THE OBLIGATIONS ARE REDEEMED IN A
SUBSEQUENT YEAR, ANY EXCESS PAID THE HOLDERS OVER THE MARKET VALUE AT
DATE OF ISSUE SHALL BE TREATED AS A DIVIDEND PAID IN THAT YEAR.  THIS
PROVISION, IT WILL BE NOTED, IS SIMILAR TO SEC. 27(D) OF THE REVENUE
ACT OF 1936.  BUT THE CREDIT OF WHICH IT FORMS A PART DIFFERS FROM THAT
OF THE EARLIER ACT AS IT IS AGAINST THE TAX AND NOT AGAINST INCOME AND
IS LIMITED TO 2 1/2% OF ADJUSTED INCOME.  THE USE OF THE CREDIT, MAY,
THEREFORE, PRODUCE RESULTS MATERIALLY DIFFERENT FROM THE USE OF THE
CREDIT GRANTED BY THE 1936 ACT. 

THE PETITIONER ASSERTS THAT CONGRESS DID NOT INTEND THE TAXPAYER TO
HAVE TWO CREDITS AS A RESULT OF PAYMENT OF A DIVIDEND IN ITS OWN
OBLIGATIONS, THAT EXEMPTIONS OR CREDITS SHOULD BE STRICTLY CONSTRUED AS
AGAINST THE TAXPAYER, AND THAT THE REGULATIONS PROMULGATED UNDER THE
REVENUE ACT OF 1938 CLEARLY DENY THE DEDUCTION CLAIMED IN THIS CASE. 

ON THE FACE OF THE 1938 ACT THE ITEMS WHICH GO TOWARD MAKING UP THE
BASIC SURTAX CREDIT UNDER SEC. 27(B) ARE DISTINCT FROM THE CREDIT FOR
INDEBTEDNESS PAID UNDER SEC. 27(A)(4).  ALTHOUGH THE NOTE OBLIGATIONS
PAID BY THE RESPONDENT WERE ISSUED IN PAYMENT OF DIVIDENDS FOR A PRIOR
YEAR THEY, NEVERTHELESS, FALL WITHIN THE PRECISE TERMS OF SEC.
27(A)(4).  IN THIS CONNECTION SEC. 27(E) MIGHT HAVE APPLICATION IF THE
REDEMPTION OF THE NOTES HAD BEEN AT A FIGURE GREATER THAN THEIR FACE OR
MARKET VALUE AT THE TIME THEY WERE ISSUED TO THE STOCKHOLDERS, FOR IN
THAT CASE SEC. 27(E) WOULD HAVE PERMITTED THE RESPONDENT TO TAKE A
CREDIT FOR THE EXCESS OF THE REDEMPTION PRICE OVER THE VALUE AT DATE OF
ISSUE AS A DIVIDEND PAID IN THE CURRENT YEAR.  BUT WE THINK THAT SEC.
27(E) DOES NOT OTHERWISE BEAR ON A PAYMENT SUCH AS THAT IN QUESTION AND
DOES NOT QUALIFY THE PLAIN INTENT OF SEC. 27(A)(4). 

THE CONGRESS HAD IN THE 1936 ACT ENCOURAGED THE PAYMENT OF DIVIDENDS
IN OBLIGATIONS.  IT KNEW THAT MANY CORPORATIONS HAD DONE SO.  WITH THIS
KNOWLEDGE IT ADOPTED THE SWEEPING LANGUAGE OF SEC. 27(A)(4) OF THE ACT
OF 1938.  AS INTRODUCED THE SECTION SPOKE ONLY OF INDEBTEDNESS.  IT WAS
AMENDED BY THE SENATE FINANCE COMMITTEE BY ADDING THE WORDS "OF ANY
KIND" AFTER THE WORD "INDEBTEDNESS," FOR THE PURPOSE OF CLARIFICATION. 
FN8  THESE FACTS, WITHOUT MORE, MAKE PLAIN THE SCOPE OF THE PROVISION,
AND ANSWER THE CONTENTIONS THAT NO CREDIT WAS INTENDED TO BE GRANTED
FOR THE PAYMENT IN THE TAXABLE YEAR OF OBLIGATIONS ISSUED FOR DIVIDENDS
IN A PRIOR YEAR.  IF MORE WERE NEEDED, IT SHOULD BE NOTED THAT HAD THE
CORPORATION BORROWED MONEY IN A PRIOR YEAR TO PAY A DIVIDEND, THE
PAYMENT OF THE DEBT IN A LATER YEAR WOULD CLEARLY HAVE ENTITLED IT TO
CREDIT FOR THE PAYMENT UNDER SEC. 27(A)(4).  THERE IS NO REASON FOR
ASSUMING THAT CONGRESS INTENDED TO TREAT THE TWO CASES DIFFERENTLY, AND
IT HAS, IN PLAIN TERMS, GRANTED A CREDIT IN BOTH. 

WHAT HAS BEEN SAID RESPECTING SEC. 27(E) INDICATES THAT IT DOES NOT
LIMIT OR QUALIFY SEC. 27(A)(4).  IT MAY SUPPLEMENT IT IN A CASE WHERE
THE PAYMENT OF THE OBLIGATIONS ISSUED FOR DIVIDENDS IS IN EXCESS OF THE
MARKET VALUE OF THOSE OBLIGATIONS WHEN THEY WERE ISSUED.  THE ARGUMENT
THAT IT IS A SPECIFIC PROVISION, QUALIFYING AN EARLIER GENERAL
PROVISION OF SEC. 27, MUST BE REJECTED. 

IT REMAINS TO CONSIDER THE TREASURY REGULATIONS PROMULGATED UNDER THE
1938 ACT.  FN9  THESE FORBID A CREDIT SUCH AS THAT CLAIMED IN THIS
CASE, CALLING IT A "DOUBLE CREDIT."  WE THINK THE REGULATIONS ARE IN
THE TEETH OF THE UNAMBIGUOUS MANDATE OF THE STATUTE, ARE CONTRADICTORY
OF ITS PLAIN TERMS, AND AMOUNT TO AN ATTEMPT TO LEGISLATE.  THEY CANNOT
PREVAIL TO PRECLUDE THE CREDIT CLAIMED.  FN10 THE JUDGMENT IS
AFFIRMED. 

FN1  ACT OF MAY 28, 1938, C. 289, 52 STAT. 447, 468. 

FN2  128 F.2D 945. 

FN3  SPOKANE DRY GOODS CO. V. COMMISSIONER, 125 F.2D 865. 

FN4  49 STAT. 1648, 1665. 

FN5  52 STAT. 468. 

FN6  IT APPEARS THAT RESPONDENT'S SOLE STOCKHOLDERS ARE TWO
CORPORATIONS, BUT WE DO NOT UNDERSTAND PETITIONER TO CONTEND THAT THIS
CIRCUMSTANCE AFFECTS THE OPERATION OR APPLICATION OF SEC. 27.  IT IS
ASSUMED THAT THESE TWO CORPORATIONS ARE BONA FIDE STOCKHOLDERS OF
RESPONDENT AND PAID TAXES ON THE DIVIDENDS THEY RECEIVED.  THE SECTION
IN TERMS APPLIES TO EVERY CORPORATE TAXPAYER WHETHER IT HAS BUT TWO
STOCKHOLDERS WHICH ARE CORPORATIONS OR TWO THOUSAND WHO ARE NATURAL
PERSONS. 

FN7  NO QUESTION IS MADE IN THIS CASE AS TO THE REASONABLENESS OF THE
AMOUNT PAID. 

FN8  SENATE FINANCE COMMITTEE REPORT, S.R. 1242, 75TH CONG., 1ST
SESS. 

FN9  REGULATIONS 101, ART. 27(A)-3. 

FN10  HELVERING V. CREDIT ALLIANCE CORP., 316 U.S. 107. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MURPHY CONCUR, DISSENTING. 

THE TAXPAYER, SABINE TRANSPORTATION CO., INC., IS A DELAWARE
CORPORATION DOING BUSINESS IN TEXAS.  ITS STOCK IS HELD IN EQUAL
AMOUNTS BY TWO OTHER CORPORATIONS, SABINE TOWING CO., INC., AND THE
PURE OIL CORPORATION.  IN 1937, A DIVIDEND OF $530,000.00 WAS DECLARED,
AMOUNTING TO $35.33 1/3 PER SHARE ON THE COMMON STOCK.  THE DIVIDEND
WAS PAID TO THE TWO CORPORATE OWNERS BY EXECUTION OF TEN YEAR, EIGHT
PER CENT NOTES.  THE TAXPAYER THEN CLAIMED AND WAS ALLOWED A "DIVIDEND
PAID CREDIT" UNDER THE 1936 ACT ON ITS 1937 TAX.  IN 1938 THE TAXPAYER
PAID TO ITS TWO CORPORATE STOCKHOLDERS THE FULL FACE VALUE OF THE TEN
YEAR NOTES.  IT IS NOW GIVEN A SECOND "DIVIDENDS PAID CREDIT" UNDER THE
1938 ACT ON ITS 1938 TAX. 

THIS $530,000.00 HAS LEFT THE CORPORATE TREASURY ONLY ONCE. 
BOOKKEEPING DEVICES AND PAPER CONTRIVANCES SHOULD NOT BE PERMITTED TO
MAKE TWO PAYMENTS OUT OF ONE; AND IF TWO DEDUCTIONS ARE PERMITTED, WHY
NOT THREE OR MORE?  THE POSSIBILITIES OF MANIPULATION OF NOTES, BONDS,
STOCKS, AND EVERY OTHER CASH SUBSTITUTE IMAGINABLE, ARE PARTICULARLY
APPARENT WHEN, AS HERE, THE TAXPAYER AND ITS STOCKHOLDERS ARE SO
CLOSELY INTERRELATED.  CONGRESS HAS PASSED NO TAX STATUTES WHICH COMPEL
ME TO CONCLUDE THAT IT INTENDED TO REWARD INGENUITY IN PAPER WORK BY
GRANTING MULTIPLE TAX REDUCTIONS FOR A SINGLE MONEY PAYMENT TO
DISCHARGE A SINGLE CORPORATE OBLIGATION. 
..END :




















HOOPESTON CO. V. CULLEN, 318 U.S. 313 


NO. 358.  ARGUED FEBRUARY 3, 4, 1943.  - DECIDED MARCH 1, 1943.  - 288
N.Y. 291, 43 N.E.2D 49, AFFIRMED. 


1.  IN DETERMINING WHETHER THERE IS BEING DONE WITHIN A STATE A
BUSINESS IN INSURANCE WHICH IS SUBJECT TO REGULATION BY THE STATE,
CONSIDERATIONS OF THE LOCATION OF ACTIVITY PRIOR TO AND SUBSEQUENT TO
THE MAKING OF THE CONTRACT, OF THE DEGREE OF INTEREST OF THE REGULATING
STATE IN THE OBJECT INSURED, AND OF THE LOCATION OF THE PROPERTY
INSURED ARE SEPARATELY AND COLLECTIVELY OF GREAT WEIGHT.  P. 319. 

2.  RECIPROCAL INSURANCE ASSOCIATIONS WHICH INSURED PROPERTY LOCATED
IN NEW YORK, ALTHOUGH THEIR ATTORNEYS-IN-FACT WERE LOCATED IN ILLINOIS
AND THE CONTRACTS OF INSURANCE WERE SIGNED AND CHECKS IN PAYMENT OF
LOSSES WERE MAILED IN ILLINOIS, HELD SUBJECT TO REGULATION BY NEW
YORK.  PP. 315, 319. 

THE RECIPROCAL INSURANCE ASSOCIATIONS IN THIS CASE HAD MANY ACTUAL
CONTACTS (DETAILED IN THE OPINION) WITH SUBSCRIBERS AND THE INSURED
PROPERTY IN NEW YORK; MUCH OF THE INSURANCE COVERED IMMOVABLES LOCATED
IN NEW YORK; AND THE ASSOCIATIONS HAD FOR YEARS BEEN LICENSED TO DO
BUSINESS IN NEW YORK. 

3.  ALLGEYER V. LOUISIANA, 165 U.S. 578, DISTINGUISHED.  P. 318. 

4.  THE NEW YORK REGULATIONS OF FOREIGN RECIPROCAL INSURANCE
ASSOCIATIONS HERE CHALLENGED - REGULATIONS AIMED AT THE PROTECTION OF
THE SOLVENCY OF SUCH ASSOCIATIONS OR AT PROMOTING THE CONVENIENCE OF
RESIDENTS OF THE STATE IN DOING THEIR INSURANCE BUSINESS - HELD NOT
VIOLATIVE OF THE DUE PROCESS OR EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT.  P. 321. 

(1)  THAT THE REGULATIONS AFFECT BUSINESS ACTIVITIES WHICH ARE
CARRIED ON OUTSIDE OF THE STATE DOES NOT IN ITSELF RENDER THEM
INVALID.  P. 320. 

(2)  SINCE EACH SUBSCRIBER IS AN INSURER AND OTHER SUBSCRIBERS ARE
DEPENDENT ON HIS FINANCIAL RESPONSIBILITY, THE REQUIREMENT THAT EACH
NEW SUBSCRIBER MUST HAVE ASSETS IN EXCESS OF $10,000 DOES NOT VIOLATE
THE EQUAL PROTECTION CLAUSE.  P. 321. 

(3)  RECIPROCAL INSURANCE ASSOCIATIONS ARE NOT DENIED EQUAL
PROTECTION BY THE IMPOSITION UPON THEM OF REQUIREMENTS DIFFERENT FROM
THOSE IMPOSED UPON MUTUAL COMPANIES.  P. 321. 

(4)  THE REQUIREMENTS THAT AN OFFICE BE MAINTAINED IN THE STATE AND
THAT POLICIES BE COUNTERSIGNED BY A RESIDENT AGENT ARE VALID.  P. 321. 

(5)  THE ARGUMENT THAT RECIPROCALS GIVE COMPLETE SECURITY WITH
SUBSTANTIAL ECONOMY TO THEIR MEMBERS, AND THAT NEW YORK SUBSCRIBERS MAY
LOSE THE BENEFITS OF THIS FORM OF INSURANCE BY REASON OF THE INABILITY
OF THE RECIPROCALS TO COMPLY WITH THE NEW YORK LAW, CAN NOT AFFECT THE
VALIDITY OF THE CHALLENGED REGULATIONS.  P. 321. 

HOOPESTON CANNING CO. ET AL. V. CULLEN, SUPERINTENDENT OF INSURANCE OF
NEW YORK, ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW YORK, ALBANY COUNTY. 

%APPEAL/FROM A JUDGMENT ENTERED ON REMITTITUR OF THE COURT OF APPEALS
OF NEW YORK, WHICH SUSTAINED THE VALIDITY OF PROVISIONS OF THE STATE
INSURANCE LAW AS APPLIED TO THE APPELLANTS.  SEE ALSO 262 APP. DIV.
446, 29 N.Y.S.2D 300, AND 24 N.Y.S.2D 312. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE NEW YORK INSURANCE LAW (CONS.  LAWS, CH. 28), AS AMENDED IN 1939,
PROVIDES A COMPREHENSIVE AND DETAILED PLAN FOR REGULATION OF ALL TYPES
OF INSURANCE AND INSURANCE COMPANIES "DOING AN INSURANCE BUSINESS"
(SEC. 41) IN THAT STATE.  ARTICLE 12, APPLICABLE TO RECIPROCAL
INSURANCE ASSOCIATIONS, DEFINES THEM AS AGGREGATIONS OF PERSONS, FIRMS,
OR CORPORATIONS, WHO UNDER A COMMON NAME ENGAGE IN THE BUSINESS OF
EXCHANGING CONTRACTS OF INSURANCE ON THE RECIPROCAL PLAN THROUGH AN
ATTORNEY IN FACT.  FN1 

THE ISSUE IN THIS CASE IS WHETHER THE APPELLANTS, RECIPROCAL
INSURANCE ASSOCIATIONS WHICH INSURE AGAINST FIRE AND RELATED RISKS AND
WHOSE ATTORNEYS IN FACT ARE LOCATED IN ILLINOIS, MAY CONSTITUTIONALLY
BE MADE SUBJECT TO THE LAWS OF NEW YORK AS A CONDITION OF INSURING
PROPERTY IN THAT STATE.  THE NEW YORK LAW, SEC. 422, REQUIRES THAT
THESE COOPERATIVE INSURANCE ASSOCIATIONS MUST OBTAIN A LICENSE OR BE
PROHIBITED FROM DOING "ANY ACT WHICH EFFECTS, AIDS OR PROMOTES THE
DOING OF AN INSURANCE BUSINESS" IN NEW YORK, SEC. 410(2).  AS A
CONDITION OF THE LICENSE, SUBMISSION TO THE NEW YORK REGULATIONS IS
REQUIRED.  THE APPELLANTS CONTEND THAT THE LAW AS APPLIED TO THEM
VIOLATES THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT.  THEY RAISED THESE QUESTIONS APPROPRIATELY IN A DECLARATORY
JUDGMENT ACTION IN NEW YORK STATE COURTS, THE COURT OF APPEALS UPHELD
THE LAW, AND THE CASE IS HERE ON APPEAL UNDER SEC. 237(A) OF THE
JUDICIAL CODE. 

THESE RECIPROCALS HAVE BEEN ANNUALLY LICENSED TO DO BUSINESS IN NEW
YORK SINCE 1930 AND ALLEGE THAT THEY ARE "DESIROUS OF QUALIFYING UNDER
THE VALID PROVISIONS OF THE INSURANCE LAW OF 1939, AND OF SECURING A
LICENSE THEREUNDER."  MORE THAN 50,000 CONTRACTS AFFECTING NEW YORK
STATE RISKS HAVE BEEN EXECUTED SINCE THE RECIPROCALS BEGAN BUSINESS,
AND THE GROSS PAYMENTS MADE BY NEW YORK CONCERNS AS PREMIUMS OR
DEPOSITS AMOUNTED TO MORE THAN $2,000,000 FOR THE PERIOD FROM 1931 TO
1938.  THE TOTAL OF PREMIUMS OR DEPOSITS FROM INSURANCE AFFECTING NEW
YORK PROPERTY IS MORE THAN THAT FROM ILLINOIS, THE STATE IN WHICH THE
ASSOCIATIONS HAVE THEIR HEADQUARTERS AND WHOSE LAWS THEY INSIST MUST
GOVERN THEIR CONTRACTS. 

TWO PRINCIPAL CONTENTIONS ARE URGED AGAINST THE CONSTITUTIONALITY OF
THE NEW YORK LAW AS APPLIED TO THESE RECIPROCALS:  (A) SINCE THE
CONTRACTS OF INSURANCE ARE SIGNED IN ILLINOIS AND LOSSES ARE PAID BY
CHECKS MAILED FROM THAT STATE, THE ASSOCIATIONS DO NO BUSINESS IN NEW
YORK WHICH THEREFORE HAS NO POWER TO REGULATE THEM.  (B) ASSUMING THAT
NEW YORK DOES HAVE GENERAL POWER TO REGULATE, NEVERTHELESS CERTAIN OF
THE PROVISIONS OF THE STATUTE DO NOT ACCORD WITH DUE PROCESS AND DENY
EQUAL PROTECTION OF THE LAW. 

FIRST.  BUSINESS IN NEW YORK.  ASSUMING THAT THE FORMALITIES OF
CONTRACT ARE CARRIED ON IN ILLINOIS, THE ISSUE REMAINS WHETHER THE
INSURANCE ENTERPRISE AS A WHOLE SO AFFECTS NEW YORK INTERESTS AS TO
GIVE NEW YORK THE POWER IT CLAIMS. 

IN DETERMINING THE POWER OF A STATE TO APPLY ITS OWN REGULATORY LAWS
TO INSURANCE BUSINESS ACTIVITIES, THE QUESTION IN EARLIER CASES BECAME
INVOLVED BY CONCEPTUALISTIC DISCUSSION OF THEORIES OF THE PLACE OF
CONTRACTING OR OF PERFORMANCE N2.  MORE RECENTLY IT HAS BEEN RECOGNIZED
THAT A STATE MAY HAVE SUBSTANTIAL INTERESTS IN THE BUSINESS OF
INSURANCE OF ITS PEOPLE OR PROPERTY REGARDLESS OF THESE ISOLATED
FACTORS.  THIS INTEREST MAY BE MEASURED BY HIGHLY REALISTIC
CONSIDERATIONS SUCH AS THE PROTECTION OF THE CITIZEN INSURED OR THE
PROTECTION OF THE STATE FROM THE INCIDENTS OF LOSS.  ALASKA PACKERS
ASSN. V. INDUSTRIAL ACCIDENT COMM'N, 294 U.S. 532, 542.  TO INSURE THE
PROTECTION OF STATE INTERESTS IT IS NOW RECOGNIZED THAT A STATE MAY NOT
BE REQUIRED TO ENFORCE IN ITS OWN COURTS THE TERMS OF AN INSURANCE
POLICY NORMALLY SUBJECT TO THE LAW OF ANOTHER STATE WHERE SUCH
ENFORCEMENT WILL CONFLICT WITH THE PUBLIC POLICY OF THE STATE OF THE
FORUM.  GRIFFIN V. MCCOACH, 313 U.S. 498.  FN3 

THE ACTUAL PHYSICAL SIGNING OF CONTRACTS MAY BE ONLY ONE ELEMENT IN A
BROAD RANGE OF BUSINESS ACTIVITIES.  BUSINESS MAY BE DONE IN A STATE
ALTHOUGH THOSE DOING THE BUSINESS ARE SCRUPULOUSLY CAREFUL TO SEE THAT
NOT A SINGLE CONTRACT IS EVER SIGNED WITHIN THAT STATE'S BOUNDARIES. 
FN4 IMPORTANT AS THE EXECUTION OF WRITTEN CONTRACTS MAY BE, IT IS
ORDINARILY BUT AN INTERMEDIATE STEP SERVING TO TIE UP PRIOR BUSINESS
NEGOTIATIONS WITH FUTURE CONSEQUENCES WHICH THEMSELVES ARE THE REAL
OBJECT OF THE BUSINESS TRANSACTION. 

THE FACTS OF THE INSTANT CASE GIVE CLEAR PROOF OF THESE STATEMENTS. 
THE CONTRACTS ARE MADE IN THIS WAY:  A CANNER OR WHOLESALE GROCER IN
NEW YORK SIGNS AN APPLICATION TO BECOME A "SUBSCRIBER."  THIS IS SENT
TO THE ATTORNEY IN FACT AT THE HEAD OFFICE IN CHICAGO.  ONE OF A GROUP
OF INSURANCE ENGINEERS MAY BE SENT TO NEW YORK TO INVESTIGATE THE RISK,
AND IF ACCEPTED, THE APPLICANT SIGNS A POWER OF ATTORNEY AND SENDS IT
AND THE APPLICATION BACK TO THE ATTORNEY IN FACT.  THE ATTORNEY IN FACT
THEN ISSUES A POLICY OF INTER-INSURANCE WHICH IS MAILED TO THE
SUBSCRIBER IN NEW YORK, AND THE SUBSCRIBER THUS BECOMES THE INSURER AND
THE INSURED.  THE INSURANCE ENGINEERS MAY VISIT THE SUBSCRIBER FROM
TIME TO TIME TO ENCOURAGE THE REDUCTION OF FIRE HAZARDS OR TO
INVESTIGATE THE CAUSE AND EXTENT OF LOSSES, AND ON SUCH TRIPS THE
ENGINEER MAY GIVE INFORMATION CONCERNING THE ENTERPRISE TO PROSPECTIVE
PARTICIPANTS, ALTHOUGH HE DOES NOT ACTIVELY SOLICIT BUSINESS.  THE
CONTRACTS RESERVED THE RIGHT OF THE RECIPROCALS TO GO INTO NEW YORK TO
REPAIR, REBUILD, OR REPLACE LOST OR DAMAGED PROPERTY.  CF. LUMBERMEN'S
INSURANCE CO. V. MEYER, 197 U.S. 407, 417.  SURELY THE OBJECT OF ALL
THIS ACTIVITY IS NOT THE SIGNING OF A CONTRACT OR A CHECK, BUT THE
PROTECTION OF PROPERTY AND PAYMENT OF INDEMNITY IN CASE OF LOSS BY
FIRE.  THESE BUSINESS TRANSACTIONS NEITHER BEGIN NOR END WITH THE
CONTRACT. 

THE INTIMACY OF THE RELATION OF THESE INSURANCE CONTRACTS TO THE
STATE OF NEW YORK BECOMES EVEN MORE APPARENT WHEN IT IS REMEMBERED THAT
THE PROPERTY INSURED IS IN THE STATE OF NEW YORK.  THE STATES HAVE LONG
HELD GREAT AUTHORITY OVER PROPERTY WITHIN THEIR BORDERS.  A STATE MAY
MAKE FLOOD CONTROL, QUARANTINE, CONSERVATION AND ZONING REGULATIONS
AFFECTING PROPERTY WITHIN ITS BOUNDS.  IT IS THE SOURCE OF LAW FOR THE
FORMS OF CONVEYANCES, FOR THE NATURE OF COVENANTS, FUTURE INTERESTS AND
EASEMENTS, FOR THE CONSTRUCTION OF WILLS, TRUSTS, AND MORTGAGES, AND
FOR MANY OTHER LEGAL PRINCIPLES AFFECTING PROPERTY INTERESTS. 
CONTRACTS FORMALLY MADE IN OTHER STATES MAY REMAIN SUBJECT TO THE LAW
OF THE STATE OF THE SITUS OF THE PROPERTY, PARTICULARLY IN RESPECT TO
IMMOVABLES.  FN5  THERE IS NO MORE REASON TO BAR THE STATE FROM
AUTHORITY OVER THE INSURANCE OF THE PROPERTY WITHIN IT THAN TO EXCLUDE
IT FROM CONTROL OF ALL THE OTHER PROPERTY INTERESTS MENTIONED. 

THE APPELLANTS DRAW COUNTER CONCLUSIONS FROM ALLGEYER V. LOUISIANA,
165 U.S. 578, AND THE CASES WHICH FOLLOW IT.  WHILE THE WISDOM OF THE
ALLGEYER CASE HAS OCCASIONALLY BEEN DOUBTED, IT IS IN ANY CASE CLEARLY
DISTINGUISHABLE HERE.  IN THAT CASE, NO ACT WAS DONE IN THE STATE OF
LOUISIANA EXCEPT THAT OF MAILING A LETTER ADVISING THE INSURANCE
COMPANY OF A SHIPMENT OF GOODS, THE GOODS THEMSELVES WERE IN THE STATE
ONLY TEMPORARILY, AND THE INSURANCE COMPANY NEVER PURPORTED TO DO
BUSINESS IN THE STATE.  IN THE INSTANT CASE, THE RECIPROCALS HAVE THE
MANY ACTUAL CONTACTS WITH THE NEW YORK SUBSCRIBERS AND THE NEW YORK
PROPERTY OUTLINED ABOVE, MUCH OF THE INSURANCE COVERS PERMANENT
IMMOVABLES, AND THE RECIPROCALS HAVE BEEN LICENSED TO DO BUSINESS THERE
FOR YEARS.  THE ALLGEYER AND SUBSEQUENT INSURANCE CASES HAVE BEEN
RECENTLY CONSIDERED IN GRIFFIN V. MCCOACH, SUPRA, AT 506, 507, AND IN
OSBORN V. OZLIN, 310 U.S. 53, 66; AS THE ANALYSIS IN THOSE OPINIONS
CLEARLY INDICATES, THE ALLGEYER LINE OF DECISIONS CANNOT BE PERMITTED
TO CONTROL CASES SUCH AS THIS, WHERE THE PUBLIC POLICY OF THE STATE IS
CLEAR, THE INSURED INTEREST IS LOCATED IN THE STATE, AND THERE ARE MANY
POINTS OF CONTACT BETWEEN THE INSURER AND THE PROPERTY IN THE STATE. 

WE CONCLUDE THAT IN DETERMINING WHETHER INSURANCE BUSINESS IS DONE
WITHIN A STATE FOR THE PURPOSE OF DECIDING WHETHER A STATE HAS POWER TO
REGULATE THE BUSINESS, CONSIDERATIONS OF THE LOCATION OF ACTIVITY PRIOR
AND SUBSEQUENT TO THE MAKING OF THE CONTRACT, OSBORN V. OZLIN, SUPRA,
OF THE DEGREE OF INTEREST OF THE REGULATING STATE IN THE OBJECT
INSURED, AND OF THE LOCATION OF THE PROPERTY INSURED ARE SEPARATELY AND
COLLECTIVELY OF GREAT WEIGHT.  APPLYING ANY OF THESE TESTS, IT IS
APPARENT THAT THE RECIPROCALS ARE DOING BUSINESS IN NEW YORK AND ARE
THEREBY SUBJECT TO REGULATION BY THAT STATE. 

SECOND. VALIDITY OF THE REGULATIONS.  THE ASSAILED REQUIREMENTS ARE
IN SUBSTANCE THESE.  FN6 RECIPROCALS' SUBSCRIBERS IN EVERY STATE MUST
EXECUTE THEIR POWERS OF ATTORNEY IN ACCORDANCE WITH SPECIFIED FORMS AND
A STANDARD FORM OF CONTRACT MUST BE USED BY ALL SUBSCRIBERS WHEREEVER
THEY ARE LOCATED.  CERTAIN FORMS OF ACCOUNTING ARE ALSO REQUIRED. 
ADVISORY COMMITTEES OF THE SUBSCRIBERS THEMSELVES, RATHER THAN
APPOINTED ATTORNEYS IN FACT, MUST HAVE ULTIMATE POWERS OF MANAGEMENT OF
THE RECIPROCALS' AFFAIRS AND MUST PROVIDE REGULATIONS FOR THE CONTROL
AND CUSTODY OF THEIR FUNDS.  THE ADVISORY COMMITTEE MUST BE ELECTED AT
AN ANNUAL MEETING OF THE SUBSCRIBERS, HELD AFTER NOTICE TO THEM, WHERE
THEY CAN BE PRESENT EITHER IN PERSON OR BY PROXY.  PROVISION MUST BE
MADE FOR STIPULATED OPERATING RESERVES FOR PAYMENT OF LOSSES, FOR A
CONTINGENT LIABILITY OF SUBSCRIBERS OF NOT LESS THAN ONE NOR MORE THAN
TEN TIMES THE AMOUNT OF THE ANNUAL PREMIUM EXPRESSED IN THE CONTRACT,
AND FOR A SURPLUS TO BE MAINTAINED UNIMPAIRED.  NO SUBSCRIBER IS TO BE
GRANTED A SECURED OR PREFERRED CLAIM AGAINST THE OPERATING RESERVE.  NO
NEW AGREEMENTS ARE TO BE MADE WITH SUBSCRIBERS WHO DO NOT HAVE NET
ASSETS IN EXCESS OF TEN THOUSAND DOLLARS.  AT LEAST ONE OFFICE MUST BE
MAINTAINED IN NEW YORK AND POLICIES MUST BE COUNTERSIGNED BY A RESIDENT
NEW YORK AGENT. 

THESE REGULATIONS CAN NOT BE ATTACKED MERELY BECAUSE THEY AFFECT
BUSINESS ACTIVITIES WHICH ARE CARRIED ON OUTSIDE THE STATE.  OF
NECESSITY, ANY REGULATIONS AFFECTING THE SOLVENCY OF THOSE DOING AN
INSURANCE BUSINESS IN A STATE MUST HAVE SOME EFFECT ON BUSINESS
PRACTICES OF THE SAME COMPANY OUTSIDE THE STATE.  NOTHING IN THE
CONSTITUTION REQUIRES A STATE TO NULLIFY ITS OWN PROTECTIVE STANDARDS
BECAUSE AN ENTERPRISE REGULATED HAS ITS HEADQUARTERS ELSEWHERE.  THE
POWER NEW YORK MAY EXERCISE TO REGULATE DOMESTIC INSURANCE ASSOCIATIONS
MAY BE APPLIED TO FOREIGN ASSOCIATIONS WHICH NEW YORK PERMITS TO
CONDUCT THE SAME KIND OF BUSINESS.  THE APPELLANTS CAN NOT, "BY
SPREADING THEIR BUSINESS AND ACTIVITIES OVER OTHER STATES    ...  SET
AT NAUGHT THE PUBLIC POLICY" OF NEW YORK, ATLANTIC & PACIFIC TEA CO. V.
GROSJEAN, 301 U.S. 412, 427.  WHERE AS HERE THE STATE HAS FULL POWER TO
PRESCRIBE THE FORMS OF CONTRACT, THE TERMS OF PROTECTION OF THE
INSURED, AND THE TYPE OF RESERVE FUNDS NEEDED, "THE MERE FACT THAT
STATE ACTION MAY HAVE REPERCUSSIONS BEYOND STATE LINES IS OF NO
JUDICIAL SIGNIFICANCE."  OSBORN V. OZLIN, SUPRA, AT 62.  NEITHER NEW
YORK NOR ILLINOIS LOSES THE POWER TO PROTECT THE INTERESTS OF ITS
CITIZENS BECAUSE THESE ASSOCIATIONS CARRY ON ACTIVITIES IN BOTH
PLACES.  ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N SUPRA.  WE
THINK THE REGULATIONS THEMSELVES, SINCE THEY ARE AIMED AT THE
PROTECTION OF THE SOLVENCY OF THE RECIPROCALS OR AT PROMOTING THE
CONVENIENCE WITH WHICH NEW YORK RESIDENTS MAY DO THEIR INSURANCE
BUSINESS, ARE ALL WITHIN THE SCOPE OF STATE POWER.  OSBORN V. OZLIN,
SUPRA, AT 65, 66: 

IT IS ARGUED THAT THE PROVISION REQUIRING EACH NEW SUBSCRIBER TO HAVE
NET ASSETS OF $10,000 VIOLATES THE EQUAL PROTECTION CLAUSE, BUT SINCE
EACH SUBSCRIBER IS ALSO AN INSURER AND OTHER SUBSCRIBERS ARE DEPENDENT
ON HIS FINANCIAL RESPONSIBILITY, THERE IS NO REASON WHY THE LEGISLATURE
MIGHT NOT THINK THIS PROVISION NECESSARY.  IT IS ALSO COMPLAINED THAT
DIFFERENT REQUIREMENTS HAVE BEEN PUT UPON RECIPROCALS THAN MUTUAL
COMPANIES; BUT WE HAVE PREVIOUSLY HELD THAT A COOPERATIVE INSURANCE
COMPANY MAY BE SUBJECT TO SEPARATE CLASSIFICATION FOR THE PURPOSE OF
DETERMINING HOW IT SHALL BE REGULATED.  GERMAN ALLIANCE INS. CO. V.
KANSAS, 233 U.S. 389, 418.  CF. TIGNER V. TEXAS, 310 U.S. 141.  THE
PROVISIONS REQUIRING AN OFFICE IN THE STATE AND COUNTER SIGNATURE OF
THE CONTRACTS BY AN AGENT IN THE STATE ARE NO MORE STRINGENT THAN THOSE
APPROVED IN LA TOURETTE V. MCMASTER, 248 U.S. 465. 

THE APPELLANTS EARNESTLY INSIST THAT THEIRS IS A SUCCESSFUL SYSTEM OF
COOPERATIVE INSURANCE WHICH GIVES COMPLETE SECURITY WITH SUBSTANTIAL
ECONOMY TO THEIR MEMBERS, AND THAT THEIR NEW YORK SUBSCRIBERS MAY LOSE
THE BENEFITS OF THIS FORM OF INSURANCE BY REASON OF THE RECIPROCALS'
INABILITY TO COMPLY WITH THE REQUIREMENTS OF THE NEW YORK LAW.  THAT
THE RECIPROCALS SAVE FOR THEIR MEMBERS FROM 25 TO 50 PER CENT OF THE
COST OF ORDINARY COMMERCIAL INSURANCE AND THAT THE MEMBERS ARE WELL
SATISFIED WITH THE SYSTEM THEY HAVE CREATED IS NOT CONTROVERTED BY
COUNSEL FOR THE STATE OF NEW YORK.  HOWEVER PERSUASIVE SUCH ARGUMENTS
MIGHT BE IF ADDRESSED TO THE STATE LEGISLATURE, THEY PRESENT NO
CONSTITUTIONAL BARRIER WHICH PREVENTS NEW YORK FROM ENFORCING THESE
REGULATIONS IF IT CHOOSES.  AFFIRMED.    FN1  INTER-INSURANCE, OR
RECIPROCAL INSURANCE, HAS BEEN DESCRIBED AS "THAT SYSTEM OF INSURANCE
WHEREBY SEVERAL INDIVIDUALS, PARTNERSHIPS AND CORPORATIONS UNDERWRITE
EACH OTHER'S RISKS AGAINST LOSS BY FIRE OR OTHER HAZARD, THROUGH AN
ATTORNEY IN FACT, COMMON TO ALL, UNDER AN AGREEMENT THAT EACH
UNDERWRITER ACTS SEPARATELY AND SEVERALLY, AND NOT JOINTLY WITH ANY
OTHER."  58 CENTRAL L.J. 323.  THE NATURE OF THE BUSINESS OF THESE
PARTICULAR RECIPROCALS IS FULLY DISCUSSED IN THE OPINION OF THE COURT
BELOW AND IS DESCRIBED TO SOME EXTENT IN THIS OPINION.  THE OPINION OF
THE TRIAL COURT IS REPORTED AT 24 N.Y.S.2D 312; THE OPINION OF THE
APPELLATE DIVISION IS REPORTED AT 262 APP. DIV. 446, 29 N.Y.S.2D 300;
AND THE OPINION OF THE COURT OF APPEALS IS REPORTED AT 288 N.Y. 291, 43
N.E.2D 49.  FOR A GENERAL DISCUSSION OF THE NATURE OF INTER-INSURERS
AND SOME OF THEIR LEGAL PROBLEMS, SEE 94 A.L.R. 836. 

FN2  ALLGEYER V. LOUISIANA, 165 U.S. 578, 587.  SEE, A FACTUAL
APPROACH TO THE CONSTITUTIONAL LAW ASPECT OF THE CONFLICT OF LAWS, 35
COL. L.R. 751.  CF. FRENE V. LOUISVILLE CEMENT CO., 134 F.2D 511. 

FN3  THIS RULE WAS NOT APPLIED WHERE THE STATE HAD NO ACTUAL CONTACT
WITH THE INSURANCE CONTRACT; I.E., WHERE NEITHER THE ORIGINAL INSURED
NOR THE COMPANY WERE RESIDENTS OF THE STATE, THE PROPERTY INSURED WAS
ELSEWHERE, AND THE CONTRACT WAS MADE ELSEWHERE.  HOME INSURANCE CO. V.
DICK, 281 U.S. 397.  CF. KRYGER V. WILSON, 242 U.S. 171, WHERE, UNDER
SIMILAR CIRCUMSTANCES, A STATE WAS ENTITLED TO APPLY ITS OWN LAW IN A
NON-INSURANCE SITUATION WHERE THE PROPERTY WHICH WAS THE SUBJECT OF THE
LITIGATION WAS WITHIN ITS BOUNDS. 

FN4  INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S. 579.  FOR AN
EXAMPLE OF THE REFUSAL OF A COURT TO PERMIT EVASION OF THE LAW OF A
STATE BY A CONTRACT MADE JUST OVER ITS BORDERS, SEE OCEAN ACCIDENT & G.
CORP. V. INDUSTRIAL COMMISSION, 32 ARIZ. 275, 285, 257 P. 644. 

FN5  CARPENTER V. STRANGE, 141 U.S. 87, 106; WATKINS V. HOLMAN, 16
PET. 25, 57; FALL V. EASTIN, 215 U.S. 1, 9, 12; CF. UNION TRANSIT CO.
V. KENTUCKY, 199 U.S. 194; CURRY V. MCCANLESS, 307 U.S. 357, 363;
GRAVES V. ELLIOTT, 307 U.S. 383.  FOR A DISCUSSION OF THIS SUBJECT, SEE
COOK, 'IMMOVABLES' AND THE 'SITUS,' 52 HARVARD L. REV. 1246. 

FN6  THE SECTIONS OF THE INSURANCE LAW WHICH APPELLANTS CONTEND ARE
INVALID ARE SECS. 130, 168(2), 410(1), 412(1), 413(2), 415(1), 417(1),
418(1)(3), 420, 421, AND 422(1). 

THE CHIEF JUSTICE AND MR. JUSTICE JACKSON CONCUR IN THE RESULT. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









HELVERING V. AMER. DENTAL CO., 318 U.S. 322 


NO. 303.  ARGUED JANUARY 5, 6, 1943.  - DECIDED MARCH 1, 1943.  - 128
F.2D 254, AFFIRMED. 


1.  THE FINDING OF THE BOARD OF TAX APPEALS THAT THE CANCELLATION OF
INDEBTEDNESS IN QUESTION OCCURRED IN 1937 IS ACCEPTED HERE.  P. 324. 

2.  THE TERM "GIFT" IN SEC. 22(B)(3) OF THE REVENUE ACT OF 1936
DENOTES THE RECEIPT OF FINANCIAL ADVANTAGES GRATUITOUSLY.  P. 330. 

3.  A CANCELLATION OF ITEMS OF INDEBTEDNESS OWED BY A CORPORATION
(RENT AND INTEREST ON NOTES), THOUGH THE ITEMS HAD BEEN ACCRUED AND
SERVED TO OFFSET INCOME IN PRIOR YEARS, AND THOUGH THE CORPORATION WAS
SOLVENT, HELD, UNDER SEC. 22(B)(3) OF THE REVENUE ACT OF 1936, A "GIFT"
EXEMPT FROM FEDERAL INCOME TAX.  P. 330. 

4.  A FINDING OF THE BOARD OF TAX APPEALS THAT THE DEBT CANCELLATION
IN QUESTION WAS NOT A "GIFT" WITHIN THE MEANING OF SEC. 22(B)(3) OF THE
REVENUE ACT OF 1936 IS NOT CONCLUSIVE HERE, BECAUSE THE BOARD REACHED
ITS CONCLUSION BY APPLICATION OF ERRONEOUS LEGAL STANDARDS.  P. 330. 

5.  THAT THE MOTIVES FOR CANCELLATION OF INDEBTEDNESS WERE THOSE OF
BUSINESS, OR EVEN SELFISH, IS OF NO SIGNIFICANCE IN DETERMINING WHETHER
THERE WAS A "GIFT" UNDER SEC. 22(B)(3).  P. 331. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. AMERICAN DENTAL CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 317 U.S. 612, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 44 B.T.A. 425, SUSTAINING A DETERMINATION OF
DEFICIENCY IN INCOME TAX. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT OF CERTIORARI BRINGS HERE FOR REVIEW THE QUESTION OF THE
TAXABILITY, AS INCOME, OF RENT AND INTEREST ON ACCOUNTS OWED BY THE
TAXPAYER WHICH WERE CANCELLED BY ITS CREDITORS. 

THE TAXPAYER, A CORPORATION, RESPONDENT HERE, OWED CERTAIN PAST DUE
BILLS FOR MERCHANDISE.  THIS INDEBTEDNESS WAS REPRESENTED BY INTEREST
BEARING NOTES.  INTEREST UPON THESE NOTES HAD BEEN ACCRUED FOR THE
YEARS PRIOR TO 1937 AND DEDUCTED IN THE TAXPAYER'S INCOME TAX RETURNS,
TO THE AMOUNT OF $11,435.22.  IN NOVEMBER, 1936, THE CREDITORS AGREED
TO CANCEL ALL INTEREST ACCRUING AFTER JANUARY 1, 1932.  THE FIRST ENTRY
ON THE TAXPAYER'S BOOKS WHICH RECORDS THE CANCELLATION APPEARS IN
DECEMBER, 1937, THE TAX YEAR HERE INVOLVED, WHEN OVER $16,000 WAS
CREDITED. 

THE TAXPAYER IN DECEMBER, 1933, ALSO OWED BACK RENT AMOUNTING TO
$15,298.99.  THIS BACK RENT HAD BEEN ACCRUED AS AN EXPENSE.  A NEW
LEASE WAS NEGOTIATED AT THAT TIME AND THE LESSOR PROMISED TO MAKE AN
ADJUSTMENT OF THE ACCUMULATED OBLIGATION.  THE FOLLOWING APRIL THE
LESSOR ADVISED THE TAXPAYER THAT HE WOULD ACCEPT $7,500 IN PAYMENT OF
THE BACK RENT AND WOULD CANCEL THE REST.  THE REDUCED SUM WAS PAID IN
FEBRUARY, 1937, BY CASH AND NOTES WHICH WERE MET THE SAME YEAR.  IN
1937 THE FIRST ENTRIES WERE MADE ON BOTH THE LESSOR'S AND THE
TAXPAYER'S BOOKS, SHOWING THE PARTIAL FORGIVENESS OF THE BACK RENT. 

THE DATE OF THE BOOK ENTRIES OF THE CANCELLATIONS AND THE DEDUCTION
OF THE INTEREST FOR THE WHOLE OF 1936 BY THE TAXPAYER LED THE BOARD OF
TAX APPEALS TO UPHOLD THE COMMISSIONER'S DETERMINATION THAT THE
CANCELLATION OF ALL ITEMS OF INDEBTEDNESS INVOLVED HERE TOOK PLACE IN
1937.  THIS DETERMINATION IS ACCEPTED BY US.  WILMINGTON TRUST CO. V.
COMMISSIONER, 316 U.S. 164, 168. 

THE TAXPAYER CREDITED THE TOTAL AMOUNT OF THE CANCELLED DEBTS,
$25,219.65, TO EARNED SURPLUS.  FN1  IT DID NOT RETURN ANY OF THE SUM
AS TAXABLE INCOME.  NO PROOF APPEARS OF THE INSOLVENCY OF THE TAXPAYER
BEFORE OR AFTER THE CANCELLATION.  ITS BALANCE SHEETS SHOW ASSETS
EXCEEDING LIABILITIES AT THE OPENING AND CLOSE OF 1937 WITH NET ASSETS
GREATER THAN THE ASSERTED ADJUSTMENT OF INCOME.  UNDER THESE
CIRCUMSTANCES THE COMMISSIONER INCREASED THE TAXPAYER'S REPORTED INCOME
BY $19,234.21, THE SUM OF THE ITEMS OF THE CANCELLED INDEBTEDNESS WHICH
THE BOARD OF TAX APPEALS FOUND HAD SERVED TO OFFSET INCOME IN LIKE
AMOUNTS IN PRIOR YEARS.  THE TAXPAYER HAD ACCRUED THE RENT AND INTEREST
IN FORMER YEARS.  NO CLAIM FOR ADDITIONAL TAXES IS MADE BY THE
COMMISSIONER. 

THE TAXPAYER SOUGHT A REDETERMINATION ON THE GROUND THAT THE
CANCELLATIONS WERE EXEMPT GIFTS AND THAT IT WAS NOT ENRICHED BEYOND THE
TAX ADVANTAGES GAINED BY THE DEDUCTIONS IN FORMER TAX RETURNS.  THE
BOARD OF TAX APPEALS FOUND THAT THE CANCELLATIONS WERE NOT GIFTS,
CONCLUDED THAT THE TAX BENEFITS IN DOLLARS OBTAINED BY THE DEDUCTIONS
OF FORMER YEARS DID NOT LIMIT THE 1937 TAX SPRINGING FROM THE
CANCELLATION AND AFFIRMED THE COMMISSIONER'S DETERMINATION OF A
DEFICIENCY.  THE COURT OF APPEALS REVERSED ON THE GROUND THAT THE
CANCELLATIONS CONSTITUTED EXEMPT GIFTS.  128 F.2D 254.  ON ACCOUNT OF A
VARIETY OF VIEWS IN THE CIRCUITS AS TO THE TAXABILITY OF SIMILAR
ADJUSTMENTS OF INDEBTEDNESS, WE GRANTED CERTIORARI.  FN2 

THE APPLICABLE STATUTORY PROVISIONS ARE SEC. 22(A) AND (B)(3) OF THE
REVENUE ACT OF 1936.  FN3 THE GENERAL DEFINITION OF GROSS INCOME HAS
VARIED LITTLE IN THE SUCCESSIVE REVENUE ACTS, AND, FROM THE EARLIEST,
GIFTS HAVE BEEN EXCLUDED BY SUBSTANTIALLY IDENTICAL STATUTORY
LANGUAGE.  ACT OF OCTOBER 3, 1913, 38 STAT. 166.  THE TREASURY
DEPARTMENT REGULATIONS 94, RELATING TO THE REVENUE ACT OF 1936, ART.
22(A)-14, COVERED CANCELLATION OF INDEBTEDNESS.  FN4  THIS REGULATION
FIRST APPEARED IN REGULATIONS 86 UNDER THE 1934 ACT.  IT MARKED A
CHANGE IN THE TREASURY'S CONCEPT OF THE TAX EFFECT OF DEBT
FORGIVENESS.  THE OLD ARTICLE AS IT APPEARED IN REGULATIONS 77,
RELATING TO THE 1932 ACT, READ IN PART: 

"IF, HOWEVER, A CREDITOR MERELY DESIRES TO BENEFIT A DEBTOR AND
WITHOUT ANY CONSIDERATION THEREFOR CANCELS THE DEBT, THE AMOUNT OF THE
DEBT IS A GIFT FROM THE CREDITOR TO THE DEBTOR AND NEED NOT BE INCLUDED
IN THE LATTER'S GROSS INCOME."  FN5 

THE SAME LANGUAGE APPEARED IN THE FORMER REGULATIONS.  FN6 

IN FIELDS CLOSELY RELATED TO THE CANCELLATION OF INDEBTEDNESS WHICH
WE ARE CONSIDERING HERE, THIS COURT HAS TREATED GAINS IN NET ASSETS AS
INCOME.  IN UNITED STATES V. KIRBY LUMBER CO., 284 U.S. 1, THE TAXPAYER
PURCHASED ITS OWN BONDS AT A DISCOUNT.  IT WAS HELD TAXABLE ON THE
INCREASE IN NET ASSETS WHICH RESULTED.  FN7  THIS HOLDING WAS CONFIRMED
BY HELVERING V. AMERICAN CHICLE CO., 291 U.S. 426.  SEE ALSO
COMMISSIONER V. COASTWISE TRANSP.  CORP., 71 F.2D 104.  FORFEITURE OR
SURRENDER OF A LEASE BY WHICH THE LESSOR GAINS PROPERTY OR MONEY MAKES
SUCH GAIN TAXABLE.  HELVERING V. BRUUN, 309 U.S. 461; HORT V.
COMMISSIONER, 313 U.S. 28.  THE NARROW LINE BETWEEN TAXABLE BONUSES AND
TAX FREE GIFTS IS ILLUMINATED BY BOGARDUS V. COMMISSIONER, 302 U.S. 34,
ON THE ONE SIDE AND UPON THE OTHER BY NOEL V. PARROTT, 15 F.2D 669, AS
APPROVED IN OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716,730. 

NORMALLY CANCELLATIONS OF INDEBTEDNESS OCCUR ONLY WHEN THE
BENEFICIARY IS INSOLVENT OR AT LEAST IN FINANCIAL STRAITS.  POSSIBLY
BECAUSE IT SEEMS BEYOND THE LEGISLATIVE PURPOSE TO EXACT INCOME TAXES
FOR SAVINGS ON DEBTS, THE COURTS HAVE BEEN ASTUTE TO AVOID TAXING EVERY
BALANCE SHEET IMPROVEMENT BROUGHT ABOUT THROUGH A DEBT REDUCTION. 
WHERE THE INDEBTEDNESS HAS REPRESENTED THE PURCHASE PRICE OF PROPERTY,
A PARTIAL FORGIVENESS HAS BEEN TREATED AS A READJUSTMENT OF THE
CONTRACT RATHER THAN A GAIN.  HIRSCH V. COMMISSIONER, 115 F.2D 656;
HELVERING V. A.L. KILLIAN CO., 128 F.2D 433; GEHRING PUBLISHING CO. V.
COMMISSIONER, 1 T.C. 345.  WHERE A STOCKHOLDER GRATUITOUSLY FORGIVES
THE CORPORATION'S DEBT TO HIMSELF, THE TRANSACTION HAS LONG BEEN
RECOGNIZED BY THE TREASURY AS A CONTRIBUTION TO THE CAPITAL OF THE
CORPORATION.  REGULATIONS 45, ART. 51, THROUGH TO REGULATIONS 94, ART.
22(A)-14.  COMMISSIONER V. AUTO STROP SAFETY RAZOR CO., 74 F.2D 226. 
FN8 

THE UNCERTAINTIES OF THE EFFECT OF THE REMISSION OF INDEBTEDNESS ON
INCOME TAX BROUGHT ABOUT LEGISLATION TO CLARIFY THE PROBLEMS.  THE
CHANDLER BANKRUPTCY ACT OF JUNE 22, 1938, INSTITUTED ADJUSTMENTS DEEMED
DESIRABLE.  FN9  THE PROVISIONS OF CHAPTER X OF THE BANKRUPTCY ACT
RELATING TO CORPORATE REORGANIZATIONS ARE TYPICAL.  THEY DECLARE THAT
NO INCOME SHOULD BE RECOGNIZED "IN RESPECT TO THE ADJUSTMENT OF THE
INDEBTEDNESS OF A DEBTOR" UNDER REORGANIZATION PROCEEDINGS, SEC. 268,52
STAT. 904, PROVIDED THAT THE BASIS OF THE PROPERTY SHOULD BE REDUCED
CORRESPONDINGLY AS SPECIFIED IN SEC. 270 AS AMENDED JULY 1, 1940, 54
STAT. 709.  THE BASIS REQUIREMENTS DO NOT APPEAR THROUGHOUT THE
INTERNAL REVENUE CODE, SECS. 22(B) AND 113(B), SO AS TO EXTEND SIMILAR
RELIEF TO ALL CORPORATE TAXPAYERS "IN AN UNSOUND FINANCIAL CONDITION." 
FN11 

IT WAS PROVIDED THAT SEC. 215 SHOULD NOT APPLY TO ANY DISCHARGE OF
INDEBTEDNESS OCCURRING PRIOR TO THE ENACTMENT OF THE REVENUE ACT OF
1939.  NO FURTHER EXPLANATION FOR THIS LIMITATION APPEARS BEYOND THE
LANGUAGE OF THE HOUSE REPORT: 

"THE AMENDMENTS MADE BY SECTION 215 OF THE BILL ARE APPLICABLE ONLY
TO TAXABLE YEARS BEGINNING AFTER DECEMBER 31.  1938.  THEY ARE NOT
APPLICABLE TO DISCHARGES OF CORPORATE INDEBTEDNESS OCCURRING PRIOR TO
THE DATE OF THE ENACTMENT OF THE BILL.  THEY ARE ALSO NOT APPLICABLE TO
A DISCHARGE OCCURRING IN ANY TAXABLE YEAR BEGINNING AFTER DECEMBER 31,
1942.  THEY LIKEWISE DO NOT APPLY TO ANY DISCHARGE OF CORPORATE
INDEBTEDNESS OCCURRING IN ANY PROCEEDING UNDER SECTION 77B, OR UNDER
CHAPTER X OR XI, OF THE BANKRUPTCY ACT OF 1898, AS AMENDED, SINCE SUCH
DISCHARGES ARE GOVERNED BY OTHER PROVISIONS OF LAW."  P. 25. 

THE REVENUE ACT OF 1942, 56 STAT. 798, 811, SEC. 114, AMENDED SEC.
22(B)(9) OF THE INTERNAL REVENUE CODE SO AS TO MAKE THE EXCLUSION FROM
GROSS INCOME OF INCOME ARISING FROM DISCHARGE OF INDEBTEDNESS
APPLICABLE GENERALLY TO ALL CORPORATIONS, WHETHER OR NOT FINANCIALLY
SOUND.  FN12 

IN THE LIGHT OF THESE VIEWS UPON GAIN, PROFIT AND INCOME, WE MUST
CONSTRUE THE MEANING OF THE STATUTORY EXEMPTION OF GIFTS FROM GROSS
INCOME BY SEC. 22(B)(3).  THE BROAD IMPORT OF GROSS INCOME IN SEC.
22(A)  FN13  ADMONISHES US TO BE CHARY OF EXTENDING ANY WORDS OF
EXEMPTION BEYOND THEIR PLAIN MEANING.  CF. HEINER V. COLONIAL TRUST
CO., 275 U.S. 232, 235; UNITED STATES V. STEWART, 311 U.S. 60, 63. 
"GIFTS," HOWEVER, IS A GENERIC WORD OF BROAD CONNOTATION, TAKING
COLORATION FROM THE CONTEXT OF THE PARTICULAR STATUTE IN WHICH IT MAY
APPEAR.  ITS PLAIN MEANING IN ITS PRESENT SETTING DENOTES, IT SEEMS TO
US, THE RECEIPT OF FINANCIAL ADVANTAGES GRATUITOUSLY. 

THE RELEASE OF INTEREST OR THE COMPLETE SATISFACTION OF AN
INDEBTEDNESS BY PARTIAL PAYMENT BY THE VOLUNTARY ACT OF THE CREDITOR IS
MORE AKIN TO A REDUCTION OF SALE PRICE THAN TO FINANCIAL BETTERMENT
THROUGH THE PURCHASE BY A DEBTOR OF ITS BONDS IN AN ARM'S-LENGTH
TRANSACTION.  IN THIS VIEW, THERE IS NO SUBSTANCE IN THE COMMISSIONER'S
DIFFERENTIATION BETWEEN A SOLVENT OR INSOLVENT CORPORATION OR THE
TAXATION OF INCOME TO THE EXTENT OF ASSETS FREED FROM THE CLAIMS OF
CREDITORS BY A GRATUITOUS CANCELLATION OF INDEBTEDNESS.  LAKELAND
GROCERY CO. V. COMMISSIONER, 36 B.T.A. 289.  CF. MADISON RAILWAYS CO.
V. COMMISSIONER, 36 B.T.A. 1106; SPOKANE OFFICE SUPPLY CO. V.
COMMISSIONER, B.T.A. DOCKET NO. 86762, MEMO.  OP. OF APRIL 29, 1939;
MODEL LAUNDRY V. COMMISSIONER, B.T.A. DOCKET NO. 93493, MEMO.  OP. OF
JANUARY 15, 1940.  SEE ALSO HADEN CO. V. COMMISSIONER, 118 F.2D 285,
WHICH SUPPORTS THE COMMISSIONER. 

THE BOARD OF TAX APPEALS DECIDED THAT THESE CANCELLATIONS WERE NOT
GIFTS UNDER SEC. 22(B)(3).  IT WAS SAID: 

"NO EVIDENCE WAS INTRODUCED TO SHOW A DONATIVE INTENT UPON THE PART
OF ANY CREDITOR.  THE EVIDENCE INDICATES, ON THE CONTRARY, THAT THE
CREDITORS ACTED FOR PURELY BUSINESS REASONS AND DID NOT FORGIVE THE
DEBTS FOR ALTRUISTIC REASONS OR OUT OF PURE GENEROSITY."  44 B.T.A.
425, 428. 

WITH THIS CONCLUSION WE CANNOT AGREE.  WE DO NOT FEEL BOUND BY THE
FINDING OF THE BOARD BECAUSE IT REACHED ITS CONCLUSIONS, IN OUR
OPINION, UPON AN APPLICATION OF ERRONEOUS LEGAL STANDARDS.  SECTION
22(B)(3) EXEMPTS GIFTS.  THIS DOES NOT LEAVE THE TAX COURT OF THE
UNITED STATES FREE TO DETERMINE AT WILL OR UPON EVIDENCE AND WITHOUT
JUDICIAL REVIEW THE TESTS TO BE APPLIED TO FACTS TO DETERMINE WHETHER
THE RESULT IS OR IS NOT A GIFT.  THE FACT THAT THE MOTIVES LEADING TO
THE CANCELLATIONS WERE THOSE OF BUSINESS OR EVEN SELFISH, IF IT BE
TRUE, IS NOT SIGNIFICANT.  THE FORGIVENESS WAS GRATUITOUS, A RELEASE OF
SOMETHING TO THE DEBTOR FOR NOTHING, AND SUFFICIENT TO MAKE THE
CANCELLATION HERE GIFTS WITHIN THE STATUTE.  AFFIRMED. 

FN1  THERE IS AN UNEXPLAINED AND IMMATERIAL VARIANCE BETWEEN THE SUM
OF THE ITEMS CANCELLED AND THE TOTAL CREDITED TO SURPLUS. 

FN2  DALLAS TRANSFER & WAREHOUSE CO. V. COMMISSIONER, 70 F.2D 95;
COMMISSIONER V. COASTWISE TRANSP.  CORP., 71 F.2D 104; HIRSCH V.
COMMISSIONER, 115 F.2D 656; HELVERING V. A.L. KILLIAN CO., 128 F.2D
433; HADEN CO. V. COMMISSIONER, 118 F.2D 285. 

FN3  49 STAT. 1648, 1657, SEC. 22, GROSS INCOME: 

"(A)  GENERAL DEFINITION.  - 'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICE, OF WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER.  ... 

"(B)  EXCLUSIONS FROM GROSS INCOME.  - THE FOLLOWING ITEMS SHALL NOT
BE INCLUDED IN GROSS INCOME AND SHALL BE EXEMPT FROM TAXATION UNDER
THIS TITLE: 

.         .         .         .         . 

"(3)  GIFTS, BEQUESTS, AND DEVICES.  - THE VALUE OF PROPERTY ACQUIRED
BY GIFT, BEQUEST, DEVISE, OR INHERITANCE (BUT THE INCOME FROM SUCH
PROPERTY SHALL BE INCLUDED IN GROSS INCOME); ..." 

FN4  "ART.  22(A)-14.  CANCELLATION OF INDEBTEDNESS.  - THE
CANCELLATION OF INDEBTEDNESS, IN WHOLE OR IN PART, MAY RESULT IN THE
REALIZATION OF INCOME.  IF, FOR EXAMPLE, AN INDIVIDUAL PERFORMS
SERVICES FOR A CREDITOR, WHO IN CONSIDERATION THEREOF CANCELS THE DEBT,
INCOME IN THE AMOUNT OF THE DEBT IS REALIZED BY THE DEBTOR AS
COMPENSATION FOR HIS SERVICES.  A TAXPAYER REALIZES INCOME BY THE
PAYMENT OR PURCHASE OF HIS OBLIGATIONS AT LESS THAN THEIR FACE VALUE;
(SEE ARTICLE 22(A)-18.)  IF A SHAREHOLDER IN A CORPORATION WHICH IS
INDEBTED TO HIM GRATUITOUSLY FORGIVES THE DEBT, THE TRANSACTION AMOUNTS
TO A CONTRIBUTION TO THE CAPITAL OF THE CORPORATION.  INCOME IS NOT
REALIZED BY A TAXPAYER BY VIRTUE OF THE DISCHARGE OF HIS INDEBTEDNESS
AS THE RESULT OF AN ADJUDICATION IN BANKRUPTCY, OR BY VIRTUE OF A
COMPOSITION AGREEMENT AMONG HIS CREDITORS, IF IMMEDIATELY THEREAFTER
THE TAXPAYER'S LIABILITIES EXCEED THE VALUE OF HIS ASSETS."    THE
ARTICLE RELATING TO THE EXCLUSION OF GIFTS FROM GROSS INCOME IS NOT
HELPFUL.  IT MERELY SAYS GIFTS ARE EXEMPT FROM THE INCOME TAX.  ART.
22(B)(3)-1. 

FN5  THE WHOLE ARTICLE WAS AS FOLLOWS:    "ART. 64.  FORGIVENESS OF
INDEBTEDNESS.  - THE CANCELLATION AND FORGIVENESS OF INDEBTEDNESS MAY
AMOUNT TO A PAYMENT OF INCOME, TO A GIFT, OR TO A CAPITAL TRANSACTION,
DEPENDENT UPON THE CIRCUMSTANCES.  IF, FOR EXAMPLE, AN INDIVIDUAL
PERFORMS SERVICES FOR A CREDITOR, WHO IN CONSIDERATION THEREOF CANCELS
THE DEBT, INCOME TO THAT AMOUNT IS REALIZED BY THE DEBTOR AS
COMPENSATION FOR HIS SERVICES.  IF, HOWEVER, A CREDITOR MERELY DESIRES
TO BENEFIT A DEBTOR AND WITHOUT ANY CONSIDERATION THEREFOR CANCELS THE
DEBT, THE AMOUNT OF THE DEBT IS A GIFT FROM THE CREDITOR TO THE DEBTOR
AND NEED NOT BE INCLUDED IN THE LATTER'S GROSS INCOME.  IF A
SHAREHOLDER IN A CORPORATION WHICH IS INDEBTED TO HIM GRATUITOUSLY
FORGIVES THE DEBT, THE TRANSACTION AMOUNTS TO A CONTRIBUTION TO THE
CAPITAL OF THE CORPORATION." 

FN6  REGULATIONS 74, ART. 64(1931); REGULATIONS 69, ART. 49(1926);
REGULATIONS 65, ART. 49(1924), FOR INDIVIDUALS; REGULATIONS 62, ART.
50(1922), FOR INDIVIDUALS; REGULATIONS 45(1920 ED.), ART. 51, FOR
INDIVIDUALS. 

WHEN THE GIFT TAX WAS REVIVED IN 1932, THE HOUSE REPORT GAVE AS AN
EXAMPLE OF A GIFT "THE FORGIVENESS OR PAYMENT BY A OF B'S
INDEBTEDNESS."  H. REP. NO. 708, 72ND CONG., 1ST SESS., P. 28(5). 

FN7  THE FACT THAT THE PURCHASE WAS MADE IN THE TAXABLE YEAR OF ISSUE
IS IMMATERIAL.  BURNET V. SANFORD & BROOKS CO., 282 U.S. 359, 364, 365;
COMMISSIONER V. NORFOLK SOUTHERN R. CO., 63 F.2D 304. 

FN8  FOR DISCUSSIONS OF THE GENERAL PROBLEM SEE "THE REVENUE ACT OF
1939 AND THE INCOME TAX TREATMENT OF CANCELLATION OF INDEBTEDNESS," 49
YALE L.J. 1153; "CANCELLATION OF INDEBTEDNESS AND ITS TAX
CONSEQUENCES," 40 COL. L. REV. 1326; "DISCHARGE OF INDEBTEDNESS AND THE
FEDERAL INCOME TAX," 53 HARV. L. REV. 977. 

FN9  CORPORATE REORGANIZATIONS UNDER CHAP. X OR 77B, SECS. 268, 270,
276(C)(3), 52 STAT. 904, 905; ARRANGEMENTS UNDER CHAP. XI, SECS. 395,
396, 52 STAT. 915; REAL PROPERTY ARRANGEMENTS UNDER CHAP. XII, SECS.
520 521, 522, 52 STAT. 929; WAGE EARNERS PLANS UNDER CHAP. XIII, SEC.
679, 52 STAT. 938; RAILROAD ADJUSTMENTS UNDER CHAP. XV, SEC. 735, 53
STAT. 1140. 

FN10  53 STAT. 875, SEC. 215. 

FN11  SEE S. REP. NO. 648, 76TH CONG., 1ST SESS., P. 5; H. REP. NO.
855, 76TH CONG., 1ST SESS., P. 23. 

FN12  SEE S. REP. NO. 1631, 77TH CONG., 2D SESS., P. 77; 26 U.S.C.
SEC. 22: 

"(B)  EXCLUSIONS FROM GROSS INCOME.  THE FOLLOWING ITEMS SHALL NOT BE
INCLUDED IN GROSS INCOME AND SHALL BE EXEMPT FROM TAXATION UNDER THIS
CHAPTER: 

     .         .         .    .         . 

"(9)  INCOME FROM DISCHARGE OF INDEBTEDNESS.  - IN THE CASE OF A
CORPORATION, THE AMOUNT OF ANY INCOME OF THE TAXPAYER ATTRIBUTABLE TO
THE DISCHARGE, WITHIN THE TAXABLE YEAR, OF ANY INDEBTEDNESS OF THE
TAXPAYER  ...  EVIDENCED BY A SECURITY.  ...  THIS PARAGRAPH SHALL NOT
APPLY TO ANY DISCHARGE OCCURRING BEFORE THE DATE OF ENACTMENT OF THE
REVENUE ACT OF 1939, OR IN A TAXABLE YEAR BEGINNING AFTER DECEMBER 31,
1945." 

FN13  HELVERING V. CLIFFORD, 309 U.S. 331, 334. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

WHEN CONGRESS WISHED TO EXEMPT INCOME "ATTRIBUTABLE TO THE DISCHARGE
...  OF ANY INDEBTEDNESS" IT DID SO EXPLICITLY.  IT DEFINED SUCH
EXEMPTION WITH PARTICULARITY AND ONLY TO A LIMITED EXTENT, AS
ILLUSTRATED BY THE VARIOUS ENACTMENTS, INCLUDING SEC. 114 OF THE
REVENUE ACT OF 1942, ALL OF WHICH APPEAR TO THROW LIGHT LEADING AWAY
FROM AND NOT TOWARDS THE CONCLUSION DRAWN FROM THEM BY THE COURT.  IN
THE ABSENCE OF SUCH SPECIFIC EXEMPTION OF WHAT AS A PRACTICAL MATTER
MAY BE INCOME, DETERMINATION OF WHETHER IT IS OR IS NOT INCOME SHOULD
BE LEFT TO THE TRIBUNAL WHOSE SPECIAL BUSINESS IT IS TO ASCERTAIN THE
CONTROVERTED FACTS AND THE REASONABLE INFERENCES FROM THEM.  IN
DECIDING THAT, IN THE CIRCUMSTANCES OF THE PRESENT CASE, THE DEBT
CANCELLATIONS WERE NOT GIFTS AND THEREFORE TAXABLE, THE BOARD OF TAX
APPEALS (NOW THE TAX COURT OF THE UNITED STATES) DID NOT INVOKE WRONG
LEGAL STANDARDS.  IT KNEW WELL ENOUGH THE DIFFERENCE BETWEEN TAXABLE
INCOME AND GIFTS.  IT APPLIED THESE LEGAL CONCEPTS TO ITS
INTERPRETATION OF THE FACTS.  THAT ITS JUDGMENT SHOULD NOT BE UPSET IS
COUNSELLED BY WISE FISCAL AS WELL AS JUDICIAL ADMINISTRATION. 

MR. JUSTICE JACKSON JOINS IN THIS DISSENT. 
..END :





















MCNABB V. UNITED STATES, 318 U.S. 332 


NO. 25.  ARGUED OCTOBER 22, 1942.  - DECIDED MARCH 1, 1943.  - 123 F.2D
848, REVERSED. 


1.  THE POWER OF THIS COURT UPON REVIEW OF CONVICTIONS IN THE FEDERAL
COURTS IS NOT LIMITED TO THE DETERMINATION OF THE CONSTITUTIONAL
VALIDITY OF SUCH CONVICTIONS.  P. 340. 

2.  JUDICIAL SUPERVISION OF THE ADMINISTRATION OF CRIMINAL JUSTICE IN
THE FEDERAL COURTS IMPLIES THE DUTY OF ESTABLISHING AND MAINTAINING
CIVILIZED STANDARDS OF PROCEDURE AND EVIDENCE.  P. 340. 

3.  THE PRINCIPLES GOVERNING THE ADMISSIBILITY OF EVIDENCE IN CRIMINAL
CASES IN THE FEDERAL COURTS ARE NOT RESTRICTED TO THOSE DERIVED SOLELY
FROM THE CONSTITUTION.  P. 341. 

4.  IN THE EXERCISE OF ITS AUTHORITY OVER THE ADMINISTRATION OF
CRIMINAL JUSTICE IN THE FEDERAL COURTS, THIS COURT, FROM ITS BEGINNING,
HAS FORMULATED APPLICABLE RULES OF EVIDENCE; AND HAS BEEN GUIDED
THEREIN BY CONSIDERATIONS OF JUSTICE NOT LIMITED TO STRICT CANONS OF
EVIDENTIARY RELEVANCE.  P. 341. 

5.  THE CIRCUMSTANCES (DETAILED IN THE OPINION) UNDER WHICH FEDERAL
OFFICERS OBTAINED INCRIMINATING STATEMENTS FROM THE DEFENDANTS IN THIS
CASE, TOGETHER WITH THE FLAGRANT DISREGARD OF ACTS OF CONGRESS
REQUIRING THAT ACCUSED PERSONS ARRESTED BY FEDERAL OFFICERS BE TAKEN
BEFORE A UNITED STATES COMMISSIONER OR OTHER JUDICIAL OFFICER, RENDERED
THE EVIDENCE THUS OBTAINED INADMISSIBLE IN A CRIMINAL PROSECUTION IN A
FEDERAL COURT, AND CONVICTIONS RESTING UPON SUCH EVIDENCE MUST BE SET
ASIDE.  P. 341. 

6.  ALTHOUGH CONGRESS HAS NOT EXPLICITLY FORBIDDEN THE USE OF
EVIDENCE SO PROCURED, YET TO PERMIT SUCH EVIDENCE TO BE MADE THE BASIS
OF A CONVICTION IN THE FEDERAL COURTS WOULD STULTIFY THE POLICY WHICH
CONGRESS HAS ENACTED INTO LAW.  P. 345. 

MCNABB ET AL. V. UNITED, STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 316 U.S. 658, TO REVIEW THE AFFIRMANCE OF CONVICTIONS OF
SECOND-DEGREE MURDER FOR THE KILLING OF A FEDERAL OFFICER WHILE HE WAS
ENGAGED IN THE PERFORMANCE OF HIS OFFICIAL DUTIES, 18 U.S.C. SEC. 253. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS ARE UNDER SENTENCE OF IMPRISONMENT FOR FORTY-FIVE
YEARS FOR THE MURDER OF AN OFFICER OF THE ALCOHOL TAX UNIT OF THE
BUREAU OF INTERNAL REVENUE ENGAGED IN THE PERFORMANCE OF HIS OFFICIAL
DUTIES.  (18 U.S. C. SEC. 253.)  THEY WERE CONVICTED OF SECOND-DEGREE
MURDER IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE, AND
ON APPEAL TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT THE
CONVICTIONS WERE SUSTAINED.  123 F.2D 848.  WE BROUGHT THE CASE HERE
BECAUSE THE PETITION FOR CERTIORARI PRESENTED SERIOUS QUESTIONS IN THE
ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE.  316 U.S. 658. 
DETERMINATION OF THESE QUESTIONS TURNS UPON THE CIRCUMSTANCES RELATING
TO THE ADMISSION IN EVIDENCE OF INCRIMINATING STATEMENTS MADE BY THE
PETITIONERS. 

ON THE AFTERNOON OF WEDNESDAY, JULY 31, 1940, INFORMATION WAS
RECEIVED AT THE CHATTANOOGA OFFICE OF THE ALCOHOLIC TAX UNIT THAT
SEVERAL MEMBERS OF THE MCNABB FAMILY WERE PLANNING TO SELL THAT NIGHT
WHISKEY ON WHICH FEDERAL TAXES HAD NOT BEEN PAID.  THE MCNABBS WERE A
CLAN OF TENNESSEE MOUNTAINEERS LIVING ABOUT TWELVE MILES FROM
CHATTANOOGA IN A SECTION KNOWN AS THE MCNABB SETTLEMENT.  PLANS WERE
MADE TO APPREHEND THE MCNABBS WHILE ACTUALLY ENGAGED IN THEIR ILLICIT
ENTERPRISE.  THAT EVENING FOUR REVENUE AGENTS, ACCOMPANIED BY THE
GOVERNMENT'S INFORMERS, DROVE TO THE MCNABB SETTLEMENT.  WHEN THEY
APPROACHED THE RENDEZVOUS ARRANGED BETWEEN THE MCNABBS AND THE
INFORMERS, THE OFFICERS GOT OUT OF THE CAR.  THE INFORMERS DROVE ON AND
MET FIVE OF THE MCNABBS, OF WHOM THREE - THE TWIN BROTHERS FREEMAN AND
RAYMOND, AND THEIR COUSIN BENJAMIN - ARE THE PETITIONERS HERE.  (THE
TWO OTHERS, EMUIL AND BARNEY MCNABB, WERE ACQUITTED AT THE DIRECTION OF
THE TRIAL COURT.)  THE GROUP PROCEEDED TO A SPOT NEAR THE FAMILY
CEMETERY WHERE THE LIQUOR WAS HIDDEN.  WHILE CANS CONTAINING WHISKEY
WERE BEING LOADED INTO THE CAR, ONE OF THE INFORMERS FLASHED A
PREARRANGED SIGNAL TO THE OFFICERS WHO THEREUPON CAME RUNNING.  ONE OF
THESE CALLED OUT, "ALL RIGHT, BOYS, FEDERAL OFFICERS.", AND THE MCNABBS
TOOK FLIGHT. 

INSTEAD OF PURSUING THE MCNABBS, THE OFFICERS BEGAN TO EMPTY THE
CANS.  THEY HEARD NOISES COMING FROM THE DIRECTION OF THE CEMETERY, AND
AFTER A SHORT WHILE A LARGE ROCK LANDED AT THEIR FEET.  AN OFFICER
NAMED LEEPER RAN INTO THE CEMETERY.  HE LOOKED ABOUT WITH HIS
FLASHLIGHT BUT DISCOVERED NO ONE.  NOTICING A COUPLE OF WHISKEY CANS
THERE, HE BEGAN TO POUR OUT THEIR CONTENTS.  SHORTLY AFTERWARDS THE
OTHER OFFICERS HEARD A SHOT; RUNNING INTO THE CEMETERY THEY FOUND
LEEPER ON THE GROUND, FATALLY WOUNDED.  A FEW MINUTES LATER - AT ABOUT
TEN O'CLOCK - HE DIED WITHOUT HAVING IDENTIFIED HIS ASSAILANT.  A
SECOND SHOT SLIGHTLY WOUNDED ANOTHER OFFICER.  A SEARCH OF THE CEMETERY
PROVED FUTILE, AND THE OFFICERS LEFT. 

ABOUT THREE OR FOUR HOURS LATER - BETWEEN ONE AND TWO O'CLOCK
THURSDAY MORNING - FEDERAL OFFICERS WENT TO THE HOME OF FREEMAN,
RAYMOND, AND EMUIL MCNABB AND THERE PLACED THEM UNDER ARREST.  FREEMAN
AND RAYMOND WERE TWENTY-FIVE YEARS OLD.  BOTH HAD LIVED IN THE
SETTLEMENT ALL THEIR LIVES; NEITHER HAD GONE BEYOND THE FOURTH GRADE IN
SCHOOL; NEITHER HAD EVER BEEN FARTHER FROM HIS HOME THAN JASPER, TWENTY
ONE MILES AWAY.  EMUIL WAS TWENTY-TWO YEARS OLD.  HE, TOO, HAD LIVED IN
THE SETTLEMENT ALL HIS LIFE, AND HAD NOT GONE BEYOND THE SECOND GRADE. 

IMMEDIATELY UPON ARREST, FREEMAN, RAYMOND, AND EMUIL WERE TAKEN
DIRECTLY TO THE FEDERAL BUILDING AT CHATTANOOGA.  THEY WERE NOT BROUGHT
BEFORE A UNITED STATES COMMISSIONER OR A JUDGE.  INSTEAD, THEY WERE
PLACED IN A DETENTION ROOM (WHERE THERE WAS NOTHING THEY COULD SIT OR
LIE DOWN ON, EXCEPT THE FLOOR), AND KEPT THERE FOR ABOUT FOURTEEN
HOURS, FROM THREE O'CLOCK THURSDAY MORNING UNTIL FIVE O'CLOCK THAT
AFTERNOON.  THEY WERE GIVEN SOME SANDWICHES.  THEY WERE NOT PERMITTED
TO SEE RELATIVES AND FRIENDS WHO ATTEMPTED TO VISIT THEM.  THEY HAD NO
LAWYER.  THERE IS NO EVIDENCE THAT THEY REQUESTED THE ASSISTANCE OF
COUNSEL, OR THAT THEY WERE TOLD THAT THEY WERE ENTITLED TO SUCH
ASSISTANCE. 

BARNEY MCNABB, WHO HAD BEEN ARRESTED EARLY THURSDAY MORNING BY THE
LOCAL POLICE, WAS HANDED OVER TO THE FEDERAL AUTHORITIES ABOUT NINE OR
TEN O'CLOCK THAT MORNING.  HE WAS TWENTY-EIGHT YEARS OLD; LIKE THE
OTHER MCNABBS HE HAD SPENT HIS ENTIRE LIFE IN THE SETTLEMENT, HAD NEVER
GONE BEYOND JASPER, AND HIS SCHOOLING STOPPED AT THE THIRD GRADE. 
BARNEY WAS PLACED IN A SEPARATE ROOM IN THE FEDERAL BUILDING WHERE HE
WAS QUESTIONED FOR A SHORT PERIOD.  THE OFFICERS THEN TOOK HIM TO THE
SCENE OF THE KILLING, BROUGHT HIM BACK TO THE FEDERAL BUILDING,
QUESTIONED HIM FURTHER FOR ABOUT AN HOUR, AND FINALLY REMOVED HIM TO
THE COUNTY JAIL THREE BLOCKS AWAY. 

IN THE MEANTIME, DIRECTION OF THE INVESTIGATION HAD BEEN ASSUMED BY
H. B. TAYLOR, DISTRICT SUPERVISOR OF THE ALCOHOL TAX UNIT, WITH
HEADQUARTERS AT LOUISVILLE, KENTUCKY.  TAYLOR WAS THE GOVERNMENT'S
CHIEF WITNESS ON THE CENTRAL ISSUE OF THE ADMISSIBILITY OF THE
STATEMENTS MADE BY THE MCNABBS.  ARRIVING IN CHATTANOOGA EARLY THURSDAY
MORNING, HE SPENT THE DAY IN STUDY OF THE CASE BEFORE BEGINNING HIS
INTERROGATION OF THE PRISONERS.  FREEMAN, RAYMOND, AND EMUIL, WHO HAD
BEEN TAKEN TO THE COUNTY JAIL ABOUT FIVE O'CLOCK THURSDAY AFTERNOON,
WERE BROUGHT BACK TO THE FEDERAL BUILDING EARLY THAT EVENING. 
ACCORDING TO TAYLOR, HIS QUESTIONING OF THEM BEGAN AT NINE O'CLOCK. 
OTHER OFFICERS SET THE HOUR EARLIER.  FN1 

THROUGHOUT THE QUESTIONING, MOST OF WHICH WAS DONE BY TAYLOR, AT
LEAST SIX OFFICERS WERE PRESENT.  AT NO TIME DURING ITS COURSE WAS A
LAWYER OR ANY RELATIVE OR FRIEND OF THE DEFENDANTS PRESENT.  TAYLOR
BEGAN BY TELLING "EACH OF THEM BEFORE THEY WERE QUESTIONED THAT WE WERE
GOVERNMENT OFFICERS, WHAT WE WERE INVESTIGATING, AND ADVISED THEM THAT
THEY DID NOT HAVE TO MAKE A STATEMENT, THAT THEY NEED NOT FEAR FORCE,
AND THAT ANY STATEMENT MADE BY THEM WOULD BE USED AGAINST THEM, AND
THAT THEY NEED NOT ANSWER ANY QUESTIONS ASKED UNLESS THEY DESIRED TO DO
SO." 

THE MEN WERE QUESTIONED SINGLY AND TOGETHER.  AS DESCRIBED BY ONE OF
THE OFFICERS, "THEY WOULD BE BROUGHT IN, BE QUESTIONED POSSIBLY AT
VARIOUS TIMES, SOME OF THEM HALF AN HOUR, OR MAYBE AN HOUR, OR MAYBE
TWO HOURS."  TAYLOR TESTIFIED THAT THE QUESTIONING CONTINUED UNTIL ONE
O'CLOCK IN THE MORNING, WHEN THE DEFENDANTS WERE TAKEN BACK TO THE
COUNTY JAIL.  FN2 

THE QUESTIONING WAS RESUMED FRIDAY MORNING, PROBABLY SOMETIME BETWEEN
NINE AND TEN O'CLOCK.  FN3 "THEY WERE BROUGHT DOWN FROM THE JAIL
SEVERAL TIMES, HOW MANY I DON'T KNOW.  THEY WERE QUESTIONED ONE AT A
TIME, AS WE WOULD FINISH ONE HE WOULD BE SENT BACK AND WE WOULD TRY TO
RECONCILE THE FACTS THEY TOLD, CONNECT UP THE STATEMENTS THEY MADE, AND
THEN WE WOULD GET TWO OF THEM TOGETHER.  I THINK AT ONE TIME WE
PROBABLY HAD ALL FIVE TOGETHER TRYING TO RECONCILE THEIR STATEMENTS
... WHEN I KNEW THE TRUTH I TOLD THE DEFENDANTS WHAT I KNEW.  I NEVER
CALLED THEM DAMNED LIARS, BUT I DID SAY THEY WERE LYING TO ME.  ...  IT
WOULD BE IMPOSSIBLE TO TELL ALL THE MOTIONS I MADE WITH MY HANDS DURING
THE TWO DAYS OF QUESTIONING, HOWEVER, I DIDN'T THREATEN ANYONE.  NONE
OF THE OFFICERS WERE PREJUDICED TOWARDS THESE DEFENDANTS NOR BITTER
TOWARD THEM.  WE WERE ONLY TRYING TO FIND OUT WHO KILLED OUR FELLOW
OFFICER." 

BENJAMIN MCNABB, THE THIRD OF THE PETITIONERS, CAME TO THE OFFICE OF
THE ALCOHOL TAX UNIT ABOUT EIGHT OR NINE O'CLOCK FRIDAY MORNING AND
VOLUNTARILY SURRENDERED.  BENJAMIN WAS TWENTY YEARS OLD, HAD NEVER BEEN
ARRESTED BEFORE, HAD LIVED IN THE MCNABB SETTLEMENT ALL HIS LIFE, AND
HAD NOT GOT BEYOND THE FOURTH GRADE IN SCHOOL.  HE TOLD THE OFFICERS
THAT HE HAD HEARD THAT THEY WERE LOOKING FOR HIM BUT THAT HE WAS
ENTIRELY INNOCENT OF ANY CONNECTION WITH THE CRIME.  THE OFFICERS MADE
HIM TAKE HIS CLOTHES OFF FOR A FEW MINUTES BECAUSE, SO HE TESTIFIED,
"THEY WANTED TO LOOK AT ME.  THIS SCARED ME PRETTY MUCH."  FN4  HE WAS
NOT TAKEN BEFORE A UNITED STATES COMMISSIONER OR A JUDGE.  INSTEAD, THE
OFFICERS QUESTIONED HIM FOR ABOUT FIVE OR SIX HOURS.  WHEN FINALLY IN
THE AFTERNOON HE WAS CONFRONTED WITH THE STATEMENT THAT THE OTHERS
ACCUSED HIM OF HAVING FIRED BOTH SHOTS, BENJAMIN SAID, "IF THEY ARE
GOING TO ACCUSE ME OF THAT, I WILL TELL THE WHOLE TRUTH; YOU MAY GET
YOUR PENCIL AND PAPER AND WRITE IT DOWN."  HE THEN CONFESSED THAT HE
HAD FIRED THE FIRST SHOT, BUT DENIED THAT HE HAD ALSO FIRED THE
SECOND. 

BECAUSE THERE WERE "CERTAIN DISCREPANCIES IN THEIR STORIES, AND WE
WERE ANXIOUS TO STRAIGHTEN THEM OUT," THE DEFENDANTS WERE BROUGHT TO
THE FEDERAL BUILDING FROM THE JAIL BETWEEN NINE AND TEN O'CLOCK FRIDAY
NIGHT.  THEY WERE AGAIN QUESTIONED, SOMETIMES SEPARATELY, SOMETIMES
TOGETHER.  TAYLOR TESTIFIED THAT "WE HAD FREEMAN MCNABB ON THE NIGHT OF
THE SECOND (FRIDAY) FOR ABOUT THREE AND ONE-HALF HOURS.  I DON'T
REMEMBER THE TIME BUT I REMEMBER HIM PARTICULARLY BECAUSE HE CERTAINLY
WAS HARD TO GET ANYTHING OUT OF.  HE WOULD ADMIT HE LIED BEFORE, AND
THEN TELL IT ALL OVER AGAIN.  I KNEW SOME OF THE THINGS ABOUT THE WHOLE
TRUTH AND IT TOOK ABOUT THREE AND ONE-HALF HOURS BEFORE HE WOULD SAY IT
WAS THE TRUTH, AND I FINALLY GOT HIM TO TELL A STORY WHICH HE SAID WAS
TRUE AND WHICH CERTAINLY FIT BETTER WITH THE PHYSICAL FACTS AND
CIRCUMSTANCES THAN ANY OTHER STORY HE HAD TOLD.  IT TOOK ME THREE AND
ONE-HALF HOURS TO GET A STORY THAT WAS SATISFACTORY OR THAT I BELIEVED
WAS NEARER THE TRUTH THAN WHEN WE STARTED." 

THE QUESTIONING OF THE DEFENDANTS CONTINUED UNTIL ABOUT TWO O'CLOCK
SATURDAY MORNING, WHEN THE OFFICERS FINALLY "GOT ALL THE DISCREPANCIES
STRAIGHTENED OUT."  BENJAMIN DID NOT CHANGE HIS STORY THAT HE HAD FIRED
ONLY THE FIRST SHOT.  FREEMAN AND RAYMOND ADMITTED THAT THEY WERE
PRESENT WHEN THE SHOOTING OCCURRED, BUT DENIED BENJAMIN'S CHARGE THAT
THEY HAD URGED HIM TO SHOOT.  BARNEY AND EMUIL, WHO WERE ACQUITTED AT
THE DIRECTION OF THE TRIAL COURT, MADE NO INCRIMINATING ADMISSIONS. 

CONCEDEDLY, THE ADMISSIONS MADE BY FREEMAN, RAYMOND AND BENJAMIN
CONSTITUTED THE CRUX OF THE GOVERNMENT'S CASE AGAINST THEM, AND THE
CONVICTIONS CANNOT STAND IF SUCH EVIDENCE BE EXCLUDED.  ACCORDINGLY,
THE QUESTION FOR OUR DECISION IS WHETHER THESE INCRIMINATING
STATEMENTS, MADE UNDER THE CIRCUMSTANCES WE HAVE SUMMARIZED N5, WERE
PROPERLY ADMITTED.  RELYING UPON THE GUARANTEES OF THE FIFTH AMENDMENT
THAT NO PERSON "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," THE PETITIONERS CONTEND THAT THE CONSTITUTION
ITSELF FORBADE THE USE OF THIS EVIDENCE AGAINST THEM.  THE GOVERNMENT
COUNTERS BY URGING THAT THE CONSTITUTION PROSCRIBES ONLY "INVOLUNTARY"
CONFESSIONS, AND THAT JUDGED BY APPROPRIATE CRITERIA OF "VOLUNTARINESS"
THE PETITIONERS' ADMISSIONS WERE VOLUNTARY AND HENCE ADMISSIBLE. 

IT IS TRUE, AS THE PETITIONERS ASSERT, THAT A CONVICTION IN THE
FEDERAL COURTS, THE FOUNDATION OF WHICH IS EVIDENCE OBTAINED IN
DISREGARD OF LIBERTIES DEEMED FUNDAMENTAL BY THE CONSTITUTION, CANNOT
STAND.  BOYD V. UNITED STATES, 116 U.S. 616; WEEKS V. UNITED STATES,
232 U.S. 383; GOULED V. UNITED STATES, 255 U.S. 298; AMOS V. UNITED
STATES, 255 U.S. 313; AGNELLO V. UNITED STATES, 269 U.S. 20; BYARS V.
UNITED STATES, 273 U.S. 28; GRAU V. UNITED STATES, 287 U.S. 124.  AND
THIS COURT HAS, ON CONSTITUTIONAL GROUNDS, SET ASIDE CONVICTIONS, BOTH
IN THE FEDERAL AND STATE COURTS, WHICH WERE BASED UPON CONFESSIONS
"SECURED BY PROTRACTED AND REPEATED QUESTIONING OF IGNORANT AND
UNTUTORED PERSONS, IN WHOSE MINDS THE POWER OF OFFICERS WAS GREATLY
MAGNIFIED," LISENBA V. CALIFORNIA, 314 U.S. 219, 239-40, OR "WHO HAVE
BEEN UNLAWFULLY HELD INCOMMUNICADO WITHOUT ADVICE OF FRIENDS OR
COUNSEL," WARD V. TEXAS, 316 U.S. 547, 555, AND SEE BROWN V.
MISSISSIPPI, 297 U.S. 278; CHAMBERS V. FLORIDA, 309 U.S. 227; CANTY V.
ALABAMA, 309 U.S. 629; WHITE V. TEXAS, 310 U.S. 530; LOMAX V. TEXAS,
313 U.S. 544; VERNON V. ALABAMA, 313 U.S. 547. 

IN THE VIEW WE TAKE OF THE CASE, HOWEVER, IT BECOMES UNNECESSARY TO
REACH THE CONSTITUTIONAL ISSUE PRESSED UPON US.  FOR, WHILE THE POWER
OF THIS COURT TO UNDO CONVICTIONS IN STATE COURTS IS LIMITED TO THE
ENFORCEMENT OF THOSE "FUNDAMENTAL PRINCIPLES OF LIBERTY AND JUSTICE,"
HEBERT V. LOUISIANA, 272 U.S. 312, 316, WHICH ARE SECURED BY THE
FOURTEENTH AMENDMENT, THE SCOPE OF OUR REVIEWING POWER OVER CONVICTIONS
BROUGHT HERE FROM THE FEDERAL COURTS IS NOT CONFINED TO ASCERTAINMENT
OF CONSTITUTIONAL VALIDITY.  JUDICIAL SUPERVISION OF THE ADMINISTRATION
OF CRIMINAL JUSTICE IN THE FEDERAL COURTS IMPLIES THE DUTY OF
ESTABLISHING AND MAINTAINING CIVILIZED STANDARDS OF PROCEDURE AND
EVIDENCE.  SUCH STANDARDS ARE NOT SATISFIED MERELY BY OBSERVANCE OF
THOSE MINIMAL HISTORIC SAFEGUARDS FOR SECURING TRIAL BY REASON WHICH
ARE SUMMARIZED AS "DUE PROCESS OF LAW" AND BELOW WHICH WE REACH WHAT IS
REALLY TRIAL BY FORCE.  MOREOVER, REVIEW BY THIS COURT OF STATE ACTION
EXPRESSING ITS NOTION OF WHAT WILL BEST FURTHER ITS OWN SECURITY IN THE
ADMINISTRATION OF CRIMINAL JUSTICE DEMANDS APPROPRIATE RESPECT FOR THE
DELIBERATIVE JUDGMENT OF A STATE IN SO BASIC AN EXERCISE OF ITS
JURISDICTION.  CONSIDERATIONS OF LARGE POLICY IN MAKING THE NECESSARY
ACCOMMODATIONS IN OUR FEDERAL SYSTEM ARE WHOLLY IRRELEVANT TO THE
FORMULATION AND APPLICATION OF PROPER STANDARDS FOR THE ENFORCEMENT OF
THE FEDERAL CRIMINAL LAW IN THE FEDERAL COURTS.    THE PRINCIPLES
GOVERNING THE ADMISSIBILITY OF EVIDENCE IN FEDERAL CRIMINAL TRIALS HAVE
NOT BEEN RESTRICTED, THEREFORE, TO THOSE DERIVED SOLELY FROM THE
CONSTITUTION.  IN THE EXERCISE OF ITS SUPERVISORY AUTHORITY OVER THE
ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL COURTS, SEE NARDONE
V. UNITED STATES, 308 U.S. 338, 341-42, THIS COURT HAS, FROM THE VERY
BEGINNING OF ITS HISTORY, FORMULATED RULES OF EVIDENCE TO BE APPLIED IN
FEDERAL CRIMINAL PROSECUTIONS.  E.G., EX PARTE BOLLMAN & SWARTWOUT, 4
CRANCH 75, 130-31; UNITED STATES V. PALMER, 3 WHEAT.  610, 643-44;
UNITED STATES V. FURLONG, 5 WHEAT.  184, 199; UNITED STATES V. GOODING,
12 WHEAT.  460, 468-70; UNITED STATES V. WOOD, 14 PET. 430; UNITED
STATES V. MURPHY, 16 PET. 203; FUNK V. UNITED STATES, 290 U.S. 371;
WOLFLE V. UNITED STATES, 291 U.S. 7; SEE 1 WIGMORE ON EVIDENCE (3D ED.
1940) PP. 170-97; NOTE, 47 HARV. L. REV. 853.  FN6  AND IN FORMULATING
SUCH RULES OF EVIDENCE FOR FEDERAL CRIMINAL TRIALS THE COURT HAS BEEN
GUIDED BY CONSIDERATIONS OF JUSTICE NOT LIMITED TO THE STRICT CANONS OF
EVIDENTIARY RELEVANCE. 

QUITE APART FROM THE CONSTITUTION, THEREFORE, WE ARE CONSTRAINED TO
HOLD THAT THE EVIDENCE ELICITED FROM THE PETITIONERS IN THE
CIRCUMSTANCES DISCLOSED HERE MUST BE EXCLUDED.  FOR IN THEIR TREATMENT
OF THE PETITIONERS THE ARRESTING OFFICERS ASSUMED FUNCTIONS WHICH
CONGRESS HAS EXPLICITLY DENIED THEM.  THEY SUBJECTED THE ACCUSED TO THE
PRESSURES OF A PROCEDURE WHICH IS WHOLLY INCOMPATIBLE WITH THE VITAL
BUT VERY RESTRICTED DUTIES OF THE INVESTIGATING AND ARRESTING OFFICERS
OF THE GOVERNMENT AND WHICH TENDS TO UNDERMINE THE INTEGRITY OF THE
CRIMINAL PROCEEDING.  CONGRESS HAS EXPLICITLY COMMANDED THAT "IT SHALL
BE THE DUTY OF THE MARSHAL, HIS DEPUTY, OR OTHER OFFICER, WHO MAY
ARREST A PERSON CHARGED WITH ANY CRIME OR OFFENSE, TO TAKE THE
DEFENDANT BEFORE THE NEAREST UNITED STATES COMMISSIONER OR THE NEAREST
JUDICIAL OFFICER HAVING JURISDICTION UNDER EXISTING LAWS FOR A HEARING,
COMMITMENT, OR TAKING BAIL FOR TRIAL ...  "  18 U.S.C. SEC. 595. 
SIMILARLY, THE ACT OF JUNE 18, 1934, C. 595, 48 STAT. 1008, 5 U.S.C.
SEC. 300A, AUTHORIZING OFFICERS OF THE FEDERAL BUREAU OF INVESTIGATION
TO MAKE ARRESTS, REQUIRES THAT "THE PERSON ARRESTED SHALL BE
IMMEDIATELY TAKEN BEFORE A COMMITTING OFFICER."  COMPARE ALSO THE ACT
OF MARCH 1, 1879, C. 125, 20 STAT. 327, 341, 18 U.S.C. SEC. 593, WHICH
PROVIDES THAT WHEN ARRESTS ARE MADE OF PERSONS IN THE ACT OF OPERATING
AN ILLICIT DISTILLERY, THE ARRESTED PERSONS SHALL BE TAKEN FORTHWITH
BEFORE SOME JUDICIAL OFFICER RESIDING IN THE COUNTY WHERE THE ARRESTS
WERE MADE, OR IF NONE, IN THE COUNTY NEAREST TO THE PLACE OF ARREST. 
SIMILAR LEGISLATION, REQUIRING THAT ARRESTED PERSONS BE PROMPTLY TAKEN
BEFORE A COMMITTING AUTHORITY, APPEARS ON THE STATUTE BOOKS OF NEARLY
ALL THE STATES.  FN7 

THE PURPOSE OF THIS IMPRESSIVELY PERVASIVE REQUIREMENT OF CRIMINAL
PROCEDURE IS PLAIN.  A DEMOCRATIC SOCIETY, IN WHICH RESPECT FOR THE
DIGNITY OF ALL MEN IS CENTRAL, NATURALLY GUARDS AGAINST THE MISUSE OF
THE LAW ENFORCEMENT PROCESS.  ZEAL IN TRACKING DOWN CRIME IS NOT IN
ITSELF AN ASSURANCE OF SOBERNESS OF JUDGMENT.  DISINTERESTEDNESS IN LAW
ENFORCEMENT DOES NOT ALONE PREVENT DISREGARD OF CHERISHED LIBERTIES. 
EXPERIENCE HAS THEREFORE COUNSELED THAT SAFEGUARDS MUST BE PROVIDED
AGAINST THE DANGERS OF THE OVERZEALOUS AS WELL AS THE DESPOTIC.  THE
AWFUL INSTRUMENTS OF THE CRIMINAL LAW CANNOT BE ENTRUSTED TO A SINGLE
FUNCTIONARY.  THE COMPLICATED PROCESS OF CRIMINAL JUSTICE IS THEREFORE
DIVIDED INTO DIFFERENT PARTS, RESPONSIBILITY FOR WHICH IS SEPARATELY
VESTED IN THE VARIOUS PARTICIPANTS UPON WHOM THE CRIMINAL LAW RELIES
FOR ITS VINDICATION.  LEGISLATION SUCH AS THIS, REQUIRING THAT THE
POLICE MUST WITH REASONABLE PROMPTNESS SHOW LEGAL CAUSE FOR DETAINING
ARRESTED PERSONS, CONSTITUTES AN IMPORTANT SAFEGUARD - NOT ONLY IN
ASSURING PROTECTION FOR THE INNOCENT BUT ALSO IN SECURING CONVICTION OF
THE GUILTY BY METHODS THAT COMMEND THEMSELVES TO A PROGRESSIVE AND SELF
CONFIDENT SOCIETY.  FOR THIS PROCEDURAL REQUIREMENT CHECKS RESORT TO
THOSE REPREHENSIBLE PRACTICES KNOWN AS THE "THIRD DEGREE" WHICH, THOUGH
UNIVERSALLY REJECTED AS INDEFENSIBLE, STILL FIND THEIR WAY INTO USE. 
IT AIMS TO AVOID ALL THE EVIL IMPLICATIONS OF SECRET INTERROGATION OF
PERSONS ACCUSED OF CRIME.  IT REFLECTS NOT A SENTIMENTAL BUT A STURDY
VIEW OF LAW ENFORCEMENT.  IT OUTLAWS EASY BUT SELF-DEFEATING WAYS IN
WHICH BRUTALITY IS SUBSTITUTED FOR BRAINS AS AN INSTRUMENT OF CRIME
DETECTION.  FN8  A STATUTE CARRYING SUCH PURPOSES IS EXPRESSIVE OF A
GENERAL LEGISLATIVE POLICY TO WHICH COURTS SHOULD NOT BE HEEDLESS WHEN
APPROPRIATE SITUATIONS CALL FOR ITS APPLICATION. 

THE CIRCUMSTANCES IN WHICH THE STATEMENTS ADMITTED IN EVIDENCE
AGAINST THE PETITIONERS WERE SECURED REVEAL A PLAIN DISREGARD OF THE
DUTY ENJOINED BY CONGRESS UPON FEDERAL LAW OFFICERS.  FREEMAN AND
RAYMOND MCNABB WERE ARRESTED IN THE MIDDLE OF THE NIGHT AT THEIR HOME. 
INSTEAD OF BEING BROUGHT BEFORE A UNITED STATES COMMISSIONER OR A
JUDICIAL OFFICER, AS THE LAW REQUIRES, IN ORDER TO DETERMINE THE
SUFFICIENCY OF THE JUSTIFICATION FOR THEIR DETENTION, THEY WERE PUT IN
A BARREN CELL AND KEPT THERE FOR FOURTEEN HOURS.  FOR TWO DAYS THEY
WERE SUBJECTED TO UNREMITTING QUESTIONING BY NUMEROUS OFFICERS. 
BENJAMIN'S CONFESSION WAS SECURED BY DETAINING HIM UNLAWFULLY AND
QUESTIONING HIM CONTINUOUSLY FOR FIVE OR SIX HOURS.  THE MCNABBS HAD TO
SUBMIT TO ALL THIS WITHOUT THE AID OF FRIENDS OR THE BENEFIT OF
COUNSEL.  THE RECORD LEAVES NO ROOM FOR DOUBT THAT THE QUESTIONING OF
THE PETITIONERS TOOK PLACE WHILE THEY WERE IN THE CUSTODY OF THE
ARRESTING OFFICERS AND BEFORE ANY ORDER OF COMMITMENT WAS MADE. 
PLAINLY, A CONVICTION RESTING ON EVIDENCE SECURED THROUGH SUCH A
FLAGRANT DISREGARD OF THE PROCEDURE WHICH CONGRESS HAS COMMANDED CANNOT
BE ALLOWED TO STAND WITHOUT MAKING THE COURTS THEMSELVES ACCOMPLICES IN
WILLFUL DISOBEDIENCE OF LAW.  CONGRESS HAS NOT EXPLICITLY FORBIDDEN THE
USE OF EVIDENCE SO PROCURED.  BUT TO PERMIT SUCH EVIDENCE TO BE MADE
THE BASIS OF A CONVICTION IN THE FEDERAL COURTS WOULD STULTIFY THE
POLICY WHICH CONGRESS HAS ENACTED INTO LAW. 

UNLIKE ENGLAND, WHERE THE JUDGES OF THE KING'S BENCH HAVE PRESCRIBED
RULES FOR THE INTERROGATION OF PRISONERS WHILE IN THE CUSTODY OF POLICE
OFFICERS,  FN9  WE HAVE NO SPECIFIC PROVISIONS OF LAW GOVERNING FEDERAL
LAW ENFORCEMENT OFFICERS IN PROCURING EVIDENCE FROM PERSONS HELD IN
CUSTODY.  BUT THE ABSENCE OF SPECIFIC RESTRAINTS GOING BEYOND THE
LEGISLATION TO WHICH WE HAVE REFERRED DOES NOT IMPLY THAT THE
CIRCUMSTANCES UNDER WHICH EVIDENCE WAS SECURED ARE IRRELEVANT IN
ASCERTAINING ITS ADMISSIBILITY.  THE MERE FACT THAT A CONFESSION WAS
MADE WHILE IN THE CUSTODY OF THE POLICE DOES NOT RENDER IT
INADMISSIBLE.  COMPARE HOPT V. UTAH, 110 U.S. 574; SPARF V. UNITED
STATES, 156 U.S. 51, 55; UNITED STATES EX REL. BILOKUMSKY V. TOD, 263
U.S. 149, 157; WAN V. UNITED STATES, 266 U.S. 1, 14.  BUT WHERE IN THE
COURSE OF A CRIMINAL TRIAL IN THE FEDERAL COURTS IT APPEARS THAT
EVIDENCE HAS BEEN OBTAINED IN SUCH VIOLATION OF LEGAL RIGHTS AS THIS
CASE DISCLOSES, IT IS THE DUTY OF THE TRIAL COURT TO ENTERTAIN A MOTION
FOR THE EXCLUSION OF SUCH EVIDENCE AND TO HOLD A HEARING, AS WAS DONE
HERE, TO DETERMINE WHETHER SUCH MOTION SHOULD BE GRANTED OR DENIED. 
CF. GOULED V. UNITED STATES, 255 U.S. 298, 312-13; AMOS V. UNITED
STATES, 255 U.S. 313; NARDONE V. UNITED STATES, 308 U.S. 338, 341-42. 
THE INTERRUPTION OF THE TRIAL FOR THIS PURPOSE SHOULD BE NO LONGER THAN
IS REQUIRED FOR A COMPETENT DETERMINATION OF THE SUBSTANTIALITY OF THE
MOTION.  AS WAS OBSERVED IN THE NARDONE CASE, SUPRA, "THE CIVILIZED
CONDUCT OF CRIMINAL TRIALS CANNOT BE CONFINED WITHIN MECHANICAL RULES. 
IT NECESSARILY DEMANDS THE AUTHORITY OF LIMITED DIRECTION ENTRUSTED TO
THE JUDGE PRESIDING IN FEDERAL TRIALS, INCLUDING A WELLESTABLISHED
RANGE OF JUDICIAL DISCRETION, SUBJECT TO APPROPRIATE REVIEW ON APPEAL,
IN RULING UPON PRELIMINARY QUESTIONS OF FACT.  SUCH A SYSTEM AS OURS
MUST, WITHIN THE LIMITS HERE INDICATED, RELY ON THE LEARNING, GOOD
SENSE, FAIRNESS AND COURAGE OF FEDERAL TRIAL JUDGES."  308 U.S. AT
342. 

IN HOLDING THAT THE PETITIONERS' ADMISSIONS WERE IMPROPERLY RECEIVED
IN EVIDENCE AGAINST THEM, AND THAT HAVING BEEN BASED ON THIS EVIDENCE
THEIR CONVICTIONS CANNOT STAND, WE CONFINE OURSELVES TO OUR LIMITED
FUNCTION AS THE COURT OF ULTIMATE REVIEW OF THE STANDARDS FORMULATED
AND APPLIED BY FEDERAL COURTS IN THE TRIAL OF CRIMINAL CASES.  WE ARE
NOT CONCERNED WITH LAW ENFORCEMENT PRACTICES EXCEPT IN SO FAR AS COURTS
THEMSELVES BECOME INSTRUMENTS OF LAW ENFORCEMENT.  WE HOLD ONLY THAT A
DECENT REGARD FOR THE DUTY OF COURTS AS AGENCIES OF JUSTICE AND
CUSTODIANS OF LIBERTY FORBIDS THAT MEN SHOULD BE CONVICTED UPON
EVIDENCE SECURED UNDER THE CIRCUMSTANCES REVEALED HERE.  IN SO DOING,
WE RESPECT THE POLICY WHICH UNDERLIES CONGRESSIONAL LEGISLATION.  THE
HISTORY OF LIBERTY HAS LARGELY BEEN THE HISTORY OF OBSERVANCE OF
PROCEDURAL SAFEGUARDS.  AND THE EFFECTIVE ADMINISTRATION OF CRIMINAL
JUSTICE HARDLY REQUIRES DISREGARD OF FAIR PROCEDURES IMPOSED BY LAW. 
REVERSED. 

FN1  OFFICER BURKE TESTIFIED THAT THE QUESTIONING THURSDAY NIGHT
BEGAN AT 6 P.M., OFFICER KITTS, AT 7 P.M., AND OFFICER JAKES, AT
"POSSIBLY 6 OR 7 O'CLOCK." 

FN2  HERE AGAIN TAYLOR'S TESTIMONY IS AT VARIANCE WITH THAT OF OTHER
OFFICERS.  OFFICER KITTS ESTIMATED THAT THE QUESTIONING THURSDAY NIGHT
ENDED AT 10 P.M., OFFICER BURKE, AT 11 P.M., AND OFFICER JAKES, AT
MIDNIGHT.  NO OFFICER TESTIFIED THAT THE QUESTIONING THAT NIGHT LASTED
LESS THAN THREE HOURS. 

FN3  TAYLOR TESTIFIED THAT THE MCNABBS WERE BROUGHT BACK FRIDAY
MORNING "PROBABLY ABOUT NINE OR NINE-THIRTY."  NONE OF THE OTHER
OFFICERS COULD RECALL THE EXACT TIME.  OFFICER BURKE THOUGHT "IT MUST
HAVE BEEN AFTER NINE O'CLOCK," WHILE OFFICER JAKES GUESSED THAT IT WAS
"SOMEWHERE AROUND TEN OR ELEVEN O'CLOCK IN THE MORNING." 

FN4  TAYLOR TESTIFIED THAT THE REASON FOR HAVING BENJAMIN REMOVE HIS
CLOTHES WAS THAT "I WAS INFORMED THAT HE HAD GOTTEN AN INJURY RUNNING
THROUGH THE WOODS OR THAT HE HAD BEEN HIT BY A STRAY SHOT.  WE DIDN'T
KNOW WHETHER OR NOT THIS WAS TRUE, AND ASKED HIM TO TAKE HIS CLOTHES
OFF IN ORDER TO EXAMINE HIM AND FIND OUT." 

FN5  TO DETERMINE THE ADMISSIBILITY OF THE STATEMENTS SECURED FROM
THE DEFENDANTS WHILE THEY WERE IN THE CUSTODY OF THE FEDERAL OFFICERS,
THE TRIAL COURT CONDUCTED A PRELIMINARY EXAMINATION IN THE ABSENCE OF
THE JURY.  AFTER HEARING THE EVIDENCE (CONSISTING PRINCIPALLY OF THE
TESTIMONY OF THE DEFENDANTS AND THE OFFICERS), THE COURT CONCLUDED THAT
THE STATEMENTS WERE ADMISSIBLE.  AN EXCEPTION TO THIS RULING WAS
TAKEN.  WHEN THE JURY WAS RECALLED, THE WITNESSES FOR THE GOVERNMENT
REPEATED THEIR TESTIMONY.  THE DEFENDANTS RESTED UPON THEIR CLAIM THAT
THE TRIAL COURT ERRED IN ADMITTING THESE STATEMENTS, AND STOOD ON THEIR
CONSTITUTIONAL RIGHT NOT TO TAKE THE WITNESS STAND BEFORE THE JURY.  AT
THE CONCLUSION OF THE GOVERNMENT'S CASE THE DEFENDANTS MOVED TO EXCLUDE
FROM THE CONSIDERATION OF THE JURY THE EVIDENCE RELATING TO THE
ADMISSIONS MADE BY THEM.  THIS MOTION WAS DENIED.  THE MOTION WAS
RENEWED AT THE CONCLUSION OF THE DEFENDANTS' CASE, AND AGAIN WAS
DENIED.  THE COURT CHARGED THE JURY THAT THE DEFENDANTS' ADMISSIONS
SHOULD BE DISREGARDED IF FOUND TO HAVE BEEN INVOLUNTARILY MADE.  THE
ISSUE OF LAW WHICH WAS DECIDED BY THE TRIAL COURT IN ADMITTING THE
STATEMENTS MADE BY THE PETITIONERS DID NOT BECOME, THEREFORE, A
QUESTION OF FACT FORECLOSED BY THE JURY'S GENERAL VERDICT OF GUILTY. 
UNDER THESE CIRCUMSTANCES WE HAVE TREATED AS FACTS ONLY THE TESTIMONY
OFFERED ON BEHALF OF THE GOVERNMENT AND SO MUCH OF THE PETITIONERS'
EVIDENCE AS IS NEITHER CONTRADICTED BY NOR INCONSISTENT WITH THAT OF
THE GOVERNMENT. 

FN6  THE FUNCTION OF FORMULATING RULES OF EVIDENCE IN AREAS NOT
GOVERNED BY STATUTE HAS ALWAYS BEEN ONE OF THE CHIEF CONCERNS OF
COURTS:  "THE RULES OF EVIDENCE ON WHICH WE PRACTISE TODAY HAVE MOSTLY
GROWN UP AT THE HANDS OF THE JUDGES; AND, EXCEPT AS THEY MAY BE REALLY
SOMETHING MORE THAN RULES OF EVIDENCE, THEY MAY, IN THE MAIN, PROPERLY
ENOUGH BE LEFT TO THEM TO BE MODIFIED AND RESHAPED."  J. B. THAYER, A
PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW (1898) PP. 530-31. 

FN7  ALABAMA - CODE, 1940, TIT. 15, SEC. 160; ARIZONA - CODE, 1939,
SECS. 44-107, 44-140, 44-141; ARKANSAS - DIGEST OF STATUTES, 1937,
SECS. 3729, 3731; CALIFORNIA - PENAL CODE, 1941, SECS. 821-29, 847-49;
COLORADO - STATUTES, 1935, C. 48, SEC. 428; CONNECTICUT - GEN. STATS.,
1930, SEC. 239; DELAWARE - REV. CODE, 1935, SECS. 4456, 5173; DISTRICT
OF COLUMBIA - CODE, 1940, SECS. 4-140, 23-301; FLORIDA - STATUTES,
1941, SECS. 901.06, 901.23; GEORGIA - CODE, 1933, SECS. 27-210, 27-212;
IDAHO - CODE, 1932, SECS. 19-515, 19-518, 19-614, 19-615; ILLINOIS -
REV. STATS., 1941, C. 38, SECS. 655, 660; INDIANA - BALDWIN'S STATS.
ANN., 1934, SEC. 11484; IOWA - CODE, 1939, SECS. 13478, 13481, 13486,
13488; KANSAS - GEN. STATS., 1935, SEC. 62-610; KENTUCKY - CODE, 1938,
SECS. 45-46; LOUISIANA - CODE OF CRIMINAL PROCEDURE, 1932, SECS. 66,
79, 80; MAINE - REV. STATS., 1930, C. 145, SEC. 9; MASSACHUSETTS - GEN.
LAWS, 1932, C. 276, SECS. 22, 29, 34; MICHIGAN - STATS. ANN., 1938,
SECS. 28.863, 28.872, 28.873, 28.885; MINNESOTA - MASON'S STATS., 1927,
C. 104, SECS. 10575, 10581; MISSISSIPPI - CODE, 1930, C. 21, SEC. 1230;
MISSOURI - REV. STATS., 1939, SECS. 3862, 3883; MONTANA - REV. CODE,
1935, SECS. 11731, 11739-40; NEBRASKA - COMP. STATS., 1929, SEC. 29
412; NEVADA - COMP. LAWS, 1929, SECS. 10744-48, 10762-64; NEW HAMPSHIRE
- PUB. LAWS, 1926, C. 364, SEC. 13; NEW JERSEY - REV. STATS., 1937,
SEC. 2:216-9; NEW YORK - CODE OF CRIMINAL PROCEDURE, 1939, SECS. 158
59, 165, 185; NORTH CAROLINA - CODE, 1939, SECS. 4528, 4548; NORTH
DAKOTA - COMP. LAWS, 1913, SECS. 10543, 10548, 10576, 10578; OHIO -
THROCKMORTON'S CODE, 1940, SECS. 13432-3, 13432-4; OKLAHOMA - STATUTES,
1941, TIT. 22, SECS. 176-77, 181, 205; OREGON - CODE, 1930, SECS. 13
2117, 13-2201; PENNSYLVANIA - PURDON'S STATS. ANN., PERM.  ED., TIT.
19, SECS. 3, 4; RHODE ISLAND - GEN. LAWS 1938, C. 625, SEC. 68; SOUTH
CAROLINA - CODE, 1942, SECS. 907, 920; SOUTH DAKOTA - CODE, 1939, SECS.
34.1608, 34.1619-24; TENNESSEE - MICHIE'S CODE, 1938, SECS. 11515,
11544; TEXAS - CODE OF CRIMINAL PROCEDURE, 1936, ARTS. 233-35; UTAH -
REV. STATS., 1933, SECS. 105-4-4, 105-4-5, 103-26-51; VIRGINIA - CODE,
1942, SECS. 4826, 4827A; WASHINGTON - REV. STATS., 1932, SEC. 1949;
WEST VIRGINIA - CODE, 1937, SEC. 6150; WISCONSIN - STATUTES, 1941, SEC.
361.08; WYOMING - REV. STATS., 1931, SECS. 33-108, 33-110, 33-115. 

FN8  "DURING THE DISCUSSIONS WHICH TOOK PLACE ON THE INDIAN CODE OF
CRIMINAL PROCEDURE IN 1872 SOME OBSERVATIONS WERE MADE ON THE REASONS
WHICH OCCASIONALLY LEAD NATIVE POLICE OFFICERS TO APPLY TORTURE TO
PRISONERS.  AN EXPERIENCED CIVIL OFFICER OBSERVED, "THERE IS A GREAT
DEAL OF LAZINESS IN IT.  IT IS FAR PLEASANTER TO SIT COMFORTABLY IN THE
SHADE RUBBING RED PEPPER INTO A POOR DEVIL'S EYES THAN TO GO ABOUT IN
THE SUN HUNTING UP EVIDENCE.'  THIS WAS A NEW VIEW TO ME, BUT I HAVE NO
DOUBT OF ITS TRUTH."  SIR JAMES FITZJAMES STEPHEN, A HISTORY OF THE
CRIMINAL LAW OF ENGLAND (1883), VOL. 1, P. 442 NOTE.  COMPARE SECS. 25
AND 26 OF THE INDIAN EVIDENCE ACT (1872). 

FN9  IN 1912 THE JUDGES OF THE KING'S BENCH, AT THE REQUEST OF THE
HOME SECRETARY, ISSUED RULES FOR THE GUIDANCE OF POLICE OFFICERS.  SEE
REX V. VOISIN, L.R. (1918) 1 K.B. 531, 539.  THESE RULES WERE AMENDED
IN 1918, AND IN 1930 A CIRCULAR WAS ISSUED BY THE HOME OFFICE, WITH THE
APPROVAL OF THE JUDGES, IN ORDER TO CLEAR UP DIFFICULTIES IN THEIR
CONSTRUCTION.  6 POLICE JOURNAL (1933) 352-56, CONTAINING THE TEXTS OF
THE JUDGE'S RULES AND THE CIRCULAR.  SEE REPORT OF THE ROYAL COMMISSION
ON POLICE POWERS AND PROCEDURE (1929) CMD.  3297.  ALTHOUGH THE RULES
DO NOT HAVE THE FORCE OF LAW, REX V. VOISIN, SUPRA, THE ENGLISH COURTS
INSIST THAT THEY BE STRICTLY OBSERVED BEFORE ADMITTING STATEMENTS MADE
BY ACCUSED PERSONS WHILE IN THE CUSTODY OF THE POLICE.  SEE 1 TAYLOR ON
EVIDENCE (12TH ED. 1931), PP. 556-62; "QUESTIONING AN ACCUSED PERSON,"
92 JUSTICE OF THE PEACE AND LOCAL GOVERNMENT REVIEW 743, 758(1928);
KEEDY, PRELIMINARY EXAMINATION OF ACCUSED PERSONS IN ENGLAND, 73
PROCEEDINGS OF AMERICAN PHILOSOPHICAL SOCIETY 103(1934).  FOR A
DRAMATIC ILLUSTRATION OF THE ENGLISH ATTITUDE TOWARDS INTERROGATION OF
ARRESTED PERSONS BY THE POLICE, SEE INQUIRY IN REGARD TO THE
INTERROGATION BY THE POLICE OF MISS SAVIDGE (1928), CMD.  3147. 

MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, DISSENTING: 

I FIND MYSELF UNABLE TO AGREE WITH THE OPINION OF THE COURT IN THIS
CASE.  AN OFFICER OF THE UNITED STATES WAS KILLED WHILE IN THE
PERFORMANCE OF HIS DUTIES.  FROM THE CIRCUMSTANCES DETAILED IN THE
COURT'S OPINION, THERE WAS OBVIOUS REASON TO SUSPECT THAT THE
PETITIONERS HERE WERE IMPLICATED IN FIRING THE FATAL SHOT FROM THE
DARK.  THE ARRESTS FOLLOWED.  AS THE GUILTY PARTIES WERE KNOWN ONLY TO
THE MCNABBS WHO TOOK PART IN THE ASSAULT AT THE BURYING GROUND, IT WAS
NATURAL AND PROPER THAT THE OFFICERS WOULD QUESTION THEM AS TO THEIR
ACTIONS.  FN1 

THE CASES JUST CITED SHOW THAT STATEMENTS MADE WHILE UNDER
INTERROGATION MAY BE USED AT A TRIAL IF IT MAY FAIRLY BE SAID THAT THE
INFORMATION WAS GIVEN VOLUNTARILY.  A FRANK AND FREE CONFESSION OF
CRIME BY THE CULPRIT AFFORDS TESTIMONY OF THE HIGHEST CREDIBILITY AND
OF A CHARACTER WHICH MAY BE VERIFIED EASILY.  EQUALLY FRANK RESPONSES
TO OFFICERS BY INNOCENT PEOPLE ARRESTED UNDER MISAPPREHENSION GIVE THE
BEST BASIS FOR PROMPT DISCHARGE FROM CUSTODY.  THE REALIZATION OF THE
CONVINCING QUALITY OF A CONFESSION TEMPTS OFFICIALS TO PRESS SUSPECTS
UNDULY FOR SUCH STATEMENTS.  TO GUARD ACCUSED PERSONS AGAINST THE
DANGER OF BEING FORCED TO CONFESS, THE LAW ADMITS CONFESSIONS OF GUILT
ONLY WHEN THEY ARE VOLUNTARILY MADE.  WHILE THE CONNOTATION OF
VOLUNTARY IS INDEFINITE, IT AFFORDS AN UNDERSTANDABLE LABEL UNDER WHICH
CAN BE READILY CLASSIFIED THE VARIOUS ACTS OF TERRORISM, PROMISES,
TRICKERY AND THREATS WHICH HAVE LED THIS AND OTHER COURTS TO REFUSE
ADMISSION AS EVIDENCE TO CONFESSIONS.  FN2  THE CASES CITED IN THE
COURT'S OPINION SHOW THE BROAD COVERAGE OF THIS RULE OF LAW.  THROUGH
IT THOSE COERCED INTO CONFESSION HAVE FOUND A READY DEFENSE FROM
INJUSTICE. 

WERE THE COURT TODAY SAYING MERELY THAT IN ITS JUDGMENT THE
CONFESSIONS OF THE MCNABBS WERE NOT VOLUNTARY, THERE WOULD BE NO
OCCASION FOR THIS SINGLE PROTEST.  A NOTATION OF DISSENT WOULD
SUFFICE.  THE OPINION, HOWEVER, DOES MORE.  INVOLUNTARY CONFESSIONS ARE
NOT CONSTITUTIONALLY ADMISSIBLE BECAUSE VIOLATIVE OF THE PROVISION OF
SELF-INCRIMINATION IN THE BILL OF RIGHTS.  NOW THE COURT LEAVES
UNDECIDED WHETHER THE PRESENT CONFESSIONS ARE VOLUNTARY OR INVOLUNTARY
AND DECLARES THAT THE CONFESSIONS MUST BE EXCLUDED BECAUSE IN ADDITION
TO QUESTIONING THE PETITIONERS, THE ARRESTING OFFICERS FAILED PROMPTLY
TO TAKE THEM BEFORE A COMMITTING MAGISTRATE.  THE COURT FINDS A BASIS
FOR THE DECLARATION OF THIS NEW RULE OF EVIDENCE IN ITS SUPERVISORY
AUTHORITY OVER THE ADMINISTRATION OF CRIMINAL JUSTICE.  I QUESTION
WHETHER THIS OFFERS TO THE TRIAL COURTS AND THE PEACE OFFICERS A RULE
OF ADMISSIBILITY AS CLEAR AS THE TEST OF THE VOLUNTARY CHARACTER OF THE
CONFESSION.  I AM OPPOSED TO BROADENING THE POSSIBILITIES OF DEFENDANTS
ESCAPING PUNISHMENT BY THESE MORE RIGOROUS TECHNICAL REQUIREMENTS IN
THE ADMINISTRATION OF JUSTICE.  IF THESE CONFESSIONS ARE OTHERWISE
VOLUNTARY, CIVILIZED STANDARDS, IN MY OPINION, ARE NOT ADVANCED BY
SETTING ASIDE THESE JUDGMENTS BECAUSE OF ACTS OF OMISSION WHICH ARE NOT
SHOWN TO HAVE TENDED TOWARD COERCING THE ADMISSIONS. 

OUR POLICE OFFICERS OCCASIONALLY OVERSTEP LEGAL BOUNDS.  THIS RECORD
DOES NOT SHOW WHEN THE PETITIONERS WERE TAKEN BEFORE A COMMITTING
MAGISTRATE.  NO POINT WAS MADE OF THE FAILURE TO COMMIT BY DEFENDANT OR
COUNSEL.  NO OPPORTUNITY WAS GIVEN TO THE OFFICERS TO EXPLAIN. 
OBJECTION TO THE INTRODUCTION OF THE CONFESSIONS WAS MADE ONLY ON THE
GROUND THAT THEY WERE OBTAINED THROUGH COERCION.  THIS WAS DETERMINED
AGAINST THE ACCUSED BOTH BY THE COURT, WHEN IT APPRAISED THE FACT AS TO
THE VOLUNTARY CHARACTER OF THE CONFESSIONS PRELIMINARILY TO DETERMINING
THE LEGAL QUESTION OF THEIR ADMISSIBILITY, AND BY THE JURY.  THE COURT
SAW AND HEARD WITNESSES FOR THE PROSECUTION AND THE DEFENSE.  THE
DEFENDANTS DID NOT TAKE THE STAND BEFORE THE JURY.  THE UNCONTRADICTED
EVIDENCE DOES NOT REQUIRE A DIFFERENT CONCLUSION.  THE OFFICERS OF THE
ALCOHOL TAX UNIT SHOULD NOT BE DISCIPLINED BY OVERTURNING THIS
CONVICTION. 

FN1  HOPT V. UTAH, 110 U.S. 574, 584; SPARF AND HANSEN V. UNITED
STATES, 156 U.S. 51, 55; PIERCE V. UNITED STATES, 160 U.S. 355; WILSON
V. UNITED STATES, 162 U.S. 613, 623; CF. BILOKUMSKY V. TOD, 263 U.S.
149, 157. 

FN2  "IN SHORT, THE TRUE TEST OF ADMISSIBILITY IS THAT THE CONFESSION
IS MADE FREELY, VOLUNTARILY AND WITHOUT COMPULSION OR INDUCEMENT OF ANY
SORT."  WILSON V. UNITED STATES, 162 U.S. 613, 623; LISENBA V.
CALIFORNIA, 314 U.S. 219, 239. 
..END :



















ANDERSON V. UNITED STATES, 318 U.S. 350 


NO. 10.  ARGUED OCTOBER 21, 22, 1942.  - DECIDED MARCH 1, 1943.  - 124
F.2D 58, REVERSED. 


1.  THE CIRCUMSTANCES (DETAILED IN THE OPINION) UNDER WHICH
CONFESSIONS WERE OBTAINED FROM DEFENDANTS IN THIS CASE RENDERED THE
CONFESSIONS INADMISSIBLE IN EVIDENCE IN A CRIMINAL PROSECUTION IN THE
FEDERAL COURT, AND CONVICTIONS RESTING UPON SUCH EVIDENCE MUST BE SET
ASIDE.  MCNABB V. UNITED STATES, ANTE, P. 332.  P. 355. 

2.  THE DETENTION OF THE DEFENDANTS BY STATE OFFICERS IN THIS CASE
WAS IN VIOLATION OF A STATUTE OF TENNESSEE WHICH PROVIDES THAT "NO
PERSON CAN BE COMMITTED TO PRISON FOR ANY CRIMINAL MATTER, UNTIL
EXAMINATION THEREOF BE FIRST HAD BEFORE SOME MAGISTRATE."  P. 355. 

3.  THAT FEDERAL OFFICERS THEMSELVES WERE NOT FORMALLY GUILTY OF
ILLEGAL CONDUCT IN THIS CASE DOES NOT MAKE ADMISSIBLE THE EVIDENCE
WHICH THEY SECURED IMPROPERLY THROUGH COLLABORATION WITH STATE
OFFICERS.  P. 356. 

4.  THE ADMISSION IN EVIDENCE OF THE CONFESSIONS OF CERTAIN OF THE
DEFENDANTS IN THIS CASE HELD TO HAVE VITIATED THE CONVICTIONS OF ALL,
SINCE THE JURY, IN ASCERTAINING THE GUILT OR INNOCENCE OF EACH, WAS
WARRANTED, BY THE TRIAL COURT'S CHARGE, IN CONSIDERING THE WHOLE PROOF
MADE AT THE TRIAL.  P. 356. 

ANDERSON ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 316 U.S. 651, TO REVIEW THE AFFIRMANCE OF CONVICTIONS OF
CONSPIRACY TO DAMAGE PROPERTY OF A CORPORATION IN WHICH THE UNITED
STATES WAS A STOCKHOLDER. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE CONVICTED, IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF TENNESSEE, OF CONSPIRING TO DAMAGE PROPERTY OWNED BY THE
TENNESSEE VALLEY AUTHORITY, A CORPORATION IN WHICH THE UNITED STATES IS
A STOCKHOLDER, IN VIOLATION OF SECS. 35(C) AND 37 OF THE CRIMINAL CODE
AS AMENDED (18 U.S.C. SECS. 82, 88).  THE CIRCUIT COURT OF APPEALS FOR
THE SIXTH CIRCUIT AFFIRMED THE CONVICTIONS, 124 F.2D 58, AND WE BROUGHT
THE CASE HERE BECAUSE IT PRESENTED SERIOUS QUESTIONS IN THE
ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE, 316 U.S. 651.  THE
QUESTIONS ARE SIMILAR TO THOSE DECIDED IN MCNABB V. UNITED STATES,
ANTE, P. 332.  THE TWO CASES WERE ARGUED AT THE SAME TIME AND, AS WILL
APPEAR FROM A SHORT SUMMARY OF A LONG RECORD, ARE GOVERNED BY THE SAME
CONSIDERATIONS.  FN1 

IN JULY 1939, THE INTERNATIONAL UNION OF MINE, MILL AND SMELTER
WORKERS STRUCK AGAINST THE TENNESSEE COPPER COMPANY'S MINES AT
COPPERHILL, POLK COUNTY, TENNESSEE.  THE STRIKE WAS FOLLOWED BY A SHUT
DOWN, BUT THE MINES WERE REOPENED IN AUGUST AFTER THE SHERIFF BROUGHT
IN A NUMBER OF SPECIAL DEPUTIES WHO WERE IN THE COMPANY'S PAY.  IT WAS
ONE OF THOSE OBDURATE MINING STRIKES, AND IT CONTINUED INTO APRIL OF
1940, WHEN THE VIOLENCE WHICH GAVE RISE TO THIS PROSECUTION OCCURRED. 
ON APRIL 1ST THE COMPANY'S OPERATIONS WERE INTERRUPTED BY THE
DYNAMITING OF TWO POWER LINES, OWNED BY THE TVA, FROM WHICH THE COMPANY
OBTAINED THE POWER NECESSARY FOR ITS ACTIVITIES.  ON APRIL 14TH TWO
STEEL TOWERS WERE DYNAMITED.  TWO DAYS LATER TWO SPECIAL AGENTS OF THE
FEDERAL BUREAU OF INVESTIGATION ARRIVED IN COPPERHILL TO INVESTIGATE
THE EXPLOSIONS.  ON APRIL 24TH TWO MORE POWER LINES WERE BLOWN DOWN. 

THEREUPON, ON THE SAME DAY, THE SHERIFF ON HIS OWN INITIATIVE BEGAN TO
TAKE INTO CUSTODY STRIKERS, INCLUDING THE EIGHT PETITIONERS, WHOM HE
SUSPECTED OF PARTICIPATION IN THE DYNAMITING.  THESE ARRESTS WERE MADE
WITHOUT WARRANT.  WITH COMMENDABLE CANDOR IN REGARD TO THIS AND OTHER
MISCONDUCT OF OFFICERS OF THE LAW, THE GOVERNMENT DOES NOT DEFEND THE
LEGALITY OF THE ARRESTS.  FN2  THE MEN WERE NOT TAKEN BEFORE ANY
MAGISTRATE OR OTHER COMMITTING OFFICER, AS REQUIRED BY TENNESSEE LAW. 
MICHIE'S CODE (1938) SEC. 11515.  INSTEAD THEY WERE TAKEN TO THE
COMPANY-OWNED Y.M.C.A. BUILDING IN COPPERHILL, WHICH WAS BEING USED BY
THE SHERIFF AND HIS SPECIAL DEPUTIES AS THEIR HEADQUARTERS.  ON APRIL
24TH AND 25TH SIX MORE SPECIAL AGENTS OF THE FEDERAL BUREAU OF
INVESTIGATION ARRIVED IN COPPERHILL TO ASSIST IN THE INVESTIGATION. 

WHILE THE PETITIONERS, WITH AT LEAST THIRTEEN OTHERS, WERE THUS HELD
IN CUSTODY AT THE Y.M.C.A. BY THE STATE OFFICERS, THEY WERE QUESTIONED
BY THE FEDERAL AGENTS INTERMITTENTLY OVER A PERIOD OF SIX DAYS DURING
WHICH THEY SAW NEITHER FRIENDS, RELATIVES, NOR COUNSEL.  INCRIMINATING
STATEMENTS FROM SIX OF THE PETITIONERS WERE THE FRUIT OF THIS
INTERROGATION.  TO DETERMINE WHETHER THESE STATEMENTS WERE PROPERLY
ADMITTED IN EVIDENCE, IT IS NECESSARY TO PARTICULARIZE THE
CIRCUMSTANCES UNDER WHICH EACH CONFESSION WAS MADE. 

SIMONDS.  SIMONDS WAS ARRESTED BY TWO DEPUTIES ON THE AFTERNOON OF
WEDNESDAY, APRIL 24TH, AND TAKEN DIRECTLY TO THE Y.M.C.A.  AFTER
SPENDING THE NIGHT AT THE COUNTY JAIL, HE WAS QUESTIONED BY ONE OF THE
FEDERAL AGENTS FOR ABOUT AN HOUR THURSDAY MORNING AT THE Y.M.C.A.  THE
QUESTIONING WAS RESUMED AT TWO O'CLOCK IN THE AFTERNOON BY THREE AGENTS
WHO TALKED WITH HIM FOR ABOUT TWO HOURS; AT SEVEN O'CLOCK THAT EVENING
HE WAS AGAIN QUESTIONED BY TWO AGENTS FOR ANOTHER TWO HOURS.  ON FRIDAY
MORNING HE WAS QUESTIONED FOR ABOUT AN HOUR.  AND ON SATURDAY HE WAS
QUESTIONED AT THREE DIFFERENT PERIODS THROUGHOUT THE AFTERNOON AND
EVENING, EACH PERIOD LASTING ABOUT HALF AN HOUR.  HE WAS AGAIN
QUESTIONED ON SUNDAY AFTERNOON FOR ABOUT AN HOUR BY TWO AGENTS, ONE OF
WHOM DESCRIBED WHAT OCCURRED THEN AS FOLLOWS:  "WE WENT OVER THE ENTIRE
CASE WITH HIM, AND POINTED OUT THE DISCREPANCIES IN HIS STORY AND THE
INFORMATION WE HAD DEVELOPED ON INVESTIGATION, WHICH KNOCKED DOWN HIS
ALIBI, AND OUT OF A CLEAR SKY HE SAID 'WELL, I WANT TO TELL YOU I AM
GUILTY.'"  ONE OF THE AGENTS THEREUPON TOOK SIMONDS' WRITTEN
STATEMENT. 

HUBBARD.  HUBBARD WAS ARRESTED BY TWO DEPUTIES ON WEDNESDAY EVENING,
APRIL 24TH, AND TAKEN TO THE Y.M.C.A.  HE, TOO, SPENT THE NIGHT IN THE
COUNTY JAIL.  HE WAS QUESTIONED BY FOUR AGENTS AT THE Y.M.C.A. ON
THURSDAY AFTERNOON FOR ABOUT TWO HOURS.  TWO OF THE AGENTS QUESTIONED
HIM AGAIN THAT EVENING FOR ABOUT TWO HOURS.  AT TWO O'CLOCK FRIDAY
AFTERNOON HE WAS QUESTIONED FOR ABOUT FORTY-FIVE MINUTES; AT FIVE
O'CLOCK HE WAS QUESTIONED FOR ANOTHER HOUR AND A HALF.  AT SEVEN-THIRTY
FRIDAY EVENING TWO AGENTS QUESTIONED HIM FOR TWO MORE HOURS.  HE WAS
QUESTIONED INTERMITTENTLY ALL DAY SATURDAY.  ONE AGENT QUESTIONED HIM
FOR PERIODS OF FIFTEEN MINUTES TWO OR THREE TIMES DURING THE MORNING
AND AFTERNOON.  ANOTHER QUESTIONED HIM FOR HALF AN HOUR IN THE
MORNING.  A THIRD AGENT TALKED WITH HIM FOR ANOTHER TWO HOURS SOMETIME
DURING THE DAY.  AND HE WAS QUESTIONED AGAIN FOR ABOUT TWENTY MINUTES
AT SIX O'CLOCK IN THE EVENING.  HE WAS NOT QUESTIONED ON SUNDAY, BUT HE
WAS PRESENT DURING THE QUESTIONING OF SIMONDS BY THE FEDERAL OFFICERS
THAT MORNING.  AFTER HEARING SIMONDS ADMIT HIS GUILT, HUBBARD ALSO
CONFESSED. 

WOODWARD.  WOODWARD WAS ALSO ARRESTED ON WEDNESDAY AFTERNOON, APRIL
24TH, BY TWO DEPUTIES WHO TOOK HIM FIRST TO THE Y.M.C.A. AND THEN TO
THE COUNTY JAIL.  HE WAS QUESTIONED BY FOUR FEDERAL OFFICERS FOR ABOUT
TWO HOURS THURSDAY AFTERNOON, AND QUESTIONED AGAIN FOR ANOTHER TWO
HOURS THAT NIGHT.  THE OFFICERS QUESTIONED HIM FOR ABOUT FIFTEEN
MINUTES ON SATURDAY.  ON SUNDAY HE WAS BROUGHT INTO THE ROOM WHERE
SIMONDS AND HUBBARD WERE, AND UPON BEING CONFRONTED WITH THEIR
CONFESSIONS, ALSO CONFESSED.  ON MONDAY THE OFFICERS SPENT ABOUT FIVE
HOURS, FROM 11 A.M. UNTIL 2 P.M. AND FROM ABOUT 3:30 UNTIL 7 OR 7:30
P.M., QUESTIONING HIM IN ORDER TO REDUCE HIS CONFESSION TO WRITING. 
THE MANNER OF WOODWARD IN GIVING HIS STATEMENT WAS THUS DESCRIBED BY
THE AGENT WHO QUESTIONED HIM:  "HE HAD CONSIDERABLE DIFFICULTY IN
RECALLING THE DETAILS, HE SAID HIS MIND WAS NOT EXACTLY CLEAR ON ALL OF
IT, IT TOOK A GOOD WHILE IN ORDER TO GET THE DETAILS OF IT, OF HOW IT
HAPPENED, EVERYTHING IN THE CHRONOLOGICAL ORDER OF EVENTS, AND HE ALSO
COMPLAINED ON OCCASIONS THAT HIS MIND WAS BEFUDDLED IN MAKING THE
STATEMENT, UPON RELATING ABOUT WHAT HE HAD DONE, AND THAT IS THE REASON
IT TOOK SO LONG TO DO IT.  IT TOOK THE MORNING AND THE GREATER PART OF
THE AFTERNOON." 

RHODES. RHODES WAS ARRESTED SUNDAY NIGHT, APRIL 28TH, AND SPENT THAT
NIGHT IN THE JAIL, SHARING A CELL WITH WOODWARD, HUBBARD, SIMONDS, AND
QUEEN.  HE WAS QUESTIONED FOR ABOUT TWO HOURS BY TWO AGENTS ON MONDAY
MORNING, AND THEN CONFESSED. 

QUEEN.  QUEEN WAS ARRESTED BY TWO DEPUTIES ON SUNDAY AFTERNOON, APRIL
28TH, AND WAS TAKEN TO THE Y.M.C.A.  AFTER SPENDING THE NIGHT IN JAIL,
HE WAS QUESTIONED FOR ABOUT AN HOUR THE FOLLOWING NIGHT BY THREE
AGENTS.  UPON BEING CONFRONTED WITH THE CONFESSIONS OF THE OTHERS, HE
ADMITTED HIS GUILT. 

BALLEW.  BALLEW WAS ARRESTED BY THREE DEPUTIES ON TUESDAY AFTERNOON,
APRIL 30TH, AND TAKEN TO THE Y.M.C.A.  HE WAS QUESTIONED THERE FOR
ABOUT AN HOUR BY TWO FEDERAL OFFICERS.  AFTER SPENDING THE NIGHT IN
JAIL, HE CONFESSED THE FOLLOWING MORNING. 

THE QUESTION FOR DECISION IS WHETHER THESE CONFESSIONS - REPUDIATED
WHEN THOSE WHO MADE THEM TOOK THE WITNESS STAND AT THE TRIAL - WERE
PROPERLY ADMITTED IN EVIDENCE AGAINST ALL THE PETITIONERS, INCLUDING
ANDERSON AND ELLIS WHO DID NOT CONFESS.  IN THE MCNABB CASE WE HAVE
HELD, ANTE, P. 332, THAT INCRIMINATING STATEMENTS OBTAINED UNDER THE
CIRCUMSTANCES SET FORTH IN THAT OPINION CANNOT BE MADE THE BASIS OF
CONVICTIONS IN THE FEDERAL COURTS.  THE CONSIDERATIONS WHICH LED TO
THAT DECISION ALSO GOVERN THIS CASE.  THE DETENTION OF THE PETITIONERS
BY STATE OFFICERS WAS, AS THE GOVERNMENT CONCEDES, IN VIOLATION OF THE
TENNESSEE STATUTE WHICH PROVIDES THAT "NO PERSON CAN BE COMMITTED TO
PRISON FOR ANY CRIMINAL MATTER, UNTIL EXAMINATION THEREOF BE FIRST HAD
BEFORE SOME MAGISTRATE."  MICHIE'S CODE (1938) SEC. 11515.  THE COURTS
OF TENNESSEE EXACT SCRUPULOUS OBSERVANCE OF THIS PROHIBITION BY ITS LAW
OFFICERS.  SEE POLK V. STATE, 170 TENN. 270, 94 S.W.2D 394; STATE EX
REL. MORRIS V. NATIONAL SURETY CO., 162 TENN. 547, 39 S.W.2D 581. 

UNAIDED BY RELATIVES, FRIENDS, OR COUNSEL, THE MEN WERE UNLAWFULLY
HELD, SOME FOR DAYS, AND SUBJECTED TO LONG QUESTIONING IN THE HOSTILE
ATMOSPHERE OF A SMALL COMPANY-DOMINATED MINING TOWN.  THE MEN WERE NOT
ARRESTED BY THE FEDERAL OFFICERS UNTIL APRIL 30TH, AND ONLY THEN WERE
THEY ARRAIGNED BEFORE A UNITED STATES COMMISSIONER, EXCEPT FOR BALLEW
WHO WAS NOT ARRAIGNED UNTIL MAY 2ND OR 3RD.  THERE WAS A WORKING
ARRANGEMENT BETWEEN THE FEDERAL OFFICERS AND THE SHERIFF OF POLK COUNTY
WHICH MADE POSSIBLE THE ABUSES REVEALED BY THIS RECORD.  THEREFORE, THE
FACT THAT THE FEDERAL OFFICERS THEMSELVES WERE NOT FORMALLY GUILTY OF
ILLEGAL CONDUCT DOES NOT AFFECT THE ADMISSIBILITY OF THE EVIDENCE WHICH
THEY SECURED IMPROPERLY THROUGH COLLABORATION WITH STATE OFFICERS. 
GAMBINO V. UNITED STATES, 275 U.S. 310, 314; BYARS V. UNITED STATES,
273 U.S. 28, 33-34. 

THE GOVERNMENT URGES THAT, EVEN IF THE CONFESSIONS ARE HELD TO BE
INADMISSIBLE, ONLY THE CONVICTIONS OF THE SIX PETITIONERS WHO CONFESSED
SHOULD BE REVERSED.  THE PROSECUTION RESTED PRINCIPALLY ON THESE
CONFESSIONS AND THE TESTIMONY OF AN INFORMANT, FREED LONG, WHOSE
CREDIBILITY WAS UNDER SEVERE ATTACK.  THE INCRIMINATING STATEMENT OF
EACH PETITIONER IMPLICATED ALL THE OTHERS, INCLUDING THOSE WHO DID NOT
CONFESS.  TO BE SURE, THE TRIAL COURT DEVISED A PROCEDURE UNDER WHICH
THE CONFESSIONS WERE INTRODUCED WITHOUT MENTION OF THE NAMES OF THE
OTHER PERSONS IMPLICATED.  BUT THEIR NAMES WERE IN FACT REVEALED IN THE
COURSE OF THE CROSS-EXAMINATION OF THE CONFESSING PETITIONERS.  SO
ALSO, WHILE THE TRIAL JUDGE APPEARED TO ADMIT THE CONFESSIONS "ONLY TO
BE USED AGAINST THE PERSONS WHO MADE THEM," HIS CHARGE BOUND THE JURY
TO NO SUCH RESTRICTED USE OF THE CONFESSIONS.  ON THE CONTRARY, FROM
WHAT THE TRIAL JUDGE TOLD THEM THE JURY HAD EVERY RIGHT TO ASSUME THAT
IN ASCERTAINING THE GUILT OR INNOCENCE OF EACH DEFENDANT THEY COULD
CONSIDER THE WHOLE PROOF MADE AT THE TRIAL.  THERE IS NO REASON TO
BELIEVE, THEREFORE, THAT CONFESSIONS WHICH CAME BEFORE THE JURY AS AN
ORGANIC TISSUE OF PROOF CAN BE SEVERED AND GIVEN DISTRIBUTIVE
SIGNIFICANCE BY HOLDING THAT THEY HAD A MAJOR SHARE IN THE CONVICTION
OF SOME OF THE PETITIONERS AND NONE AT ALL AS TO THE OTHERS.  SINCE IT
WAS ERROR TO ADMIT THESE CONFESSIONS, WE SEE NO ESCAPE FROM THE
CONCLUSION THAT THE CONVICTIONS OF ALL THE PETITIONERS MUST BE SET
ASIDE.  REVERSED. 

FN1  AS IN THE MCNABB CASE, THERE ARE NO SPECIFIC FINDINGS HERE AS TO
THE CIRCUMSTANCES IN WHICH THE INCRIMINATING STATEMENTS IN CONTROVERSY
WERE ADMITTED AGAINST THE PETITIONERS.  WHEN THESE STATEMENTS
(EXCEPTING THE CONFESSIONS OF THREE PETITIONERS) WERE OFFERED IN
EVIDENCE, THE PETITIONERS OBJECTED, AND THE TRIAL COURT HELD A HEARING
IN THE ABSENCE OF THE JURY TO DETERMINE WHETHER THE STATEMENTS WERE
"VOLUNTARY."  AT THE CONCLUSION OF THIS PRELIMINARY EXAMINATION, THE
COURT OVERRULED OBJECTIONS TO THE ADMISSIBILITY OF THESE STATEMENTS. 
THE JURY WAS RECALLED AND THE SAME TESTIMONY WAS REPEATED.  THE
EVIDENCE RELATING TO THE CONFESSIONS OF THREE OF THE PETITIONERS WAS,
BY STIPULATION, HEARD ONLY ONCE AND IN THE PRESENCE OF THE JURY. 
REFERRING TO ALL THIS EVIDENCE AS "CERTAIN PARTS OF THE PROOF," THE
JUDGE THUS CHARGED THE JURY REGARDING THE ADMISSION OF THESE
INCRIMINATING STATEMENTS:  "THERE HAS BEEN ALLOWED FOR YOUR
CONSIDERATION CERTAIN STATEMENTS, CONFESSIONS, OR ADMISSIONS ALLEGED TO
HAVE BEEN MADE BY SOME OF THE DEFENDANTS.  IT IS PRIMARILY FOR THE
COURT TO DETERMINE WHETHER OR NOT SUCH STATEMENTS ARE ADMISSIBLE FOR
YOUR CONSIDERATION BUT IT IS WHOLLY FOR YOU TO DETERMINE HOW MUCH
WEIGHT OR CREDIT YOU WILL GIVE TO THESE STATEMENTS."  WE SHALL ASSUME
AS FACTS, THEREFORE, ONLY THE TESTIMONY OF GOVERNMENT WITNESSES AND SO
MUCH OF THE PETITIONERS' EVIDENCE AS IS UNCONTRADICTED. 

FN2  UNDER TENNESSEE LAW AN OFFICER MAY ARREST WITHOUT A WARRANT WHEN
A FELONY HAS IN FACT BEEN COMMITTED, AND HE HAS REASONABLE GROUNDS FOR
BELIEVING THAT THE PERSON ARRESTED HAS COMMITTED IT. MICHIE'S CODE
(1938) SEC. 11536.  BUT WILLFUL DESTRUCTION OF POWER LINES IS ONLY A
MISDEMEANOR UNDER STATE LAW.  ID., SEC. 10863(8). 

MR. JUSTICE JACKSON AND MR. JUSTICE RUTLEDGE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED DISSENTS. 
..END :





MARICOPA COUNTY V. VALLEY BANK, 318 U.S. 357 


NO. 449.  ARGUED FEBRUARY 2, 1943.  - DECIDED MARCH 1, 1943.  - 130 F.2D
356, AFFIRMED. 


1.  UNDER THE CONSTITUTION, CONGRESS HAS EXCLUSIVE AUTHORITY TO
DETERMINE WHETHER AND TO WHAT EXTENT ITS INSTRUMENTALITIES, SUCH AS THE
RECONSTRUCTION FINANCE CORPORATION, SHALL BE IMMUNE FROM STATE
TAXATION.  P. 361. 

2.  THE ACT OF MARCH 20, 1936, PROVIDED THAT SHARES OF PREFERRED
STOCK OF NATIONAL BANKS "HERETOFORE OR HEREAFTER ACQUIRED BY" THE
RECONSTRUCTION FINANCE CORPORATION "SHALL NOT, SO LONG AS
RECONSTRUCTION FINANCE CORPORATION SHALL CONTINUE TO OWN THE SAME, BE
SUBJECT TO ANY TAXATION ...  BY ANY STATE, COUNTY, MUNICIPALITY, OR
LOCAL TAXING AUTHORITY, WHETHER NOW, HERETOFORE, OR HEREAFTER IMPOSED,
LEVIED, OR ASSESSED, AND WHETHER FOR A PAST, PRESENT, OR FUTURE TAXING
PERIOD."  HELD: 

(1)  IN WITHDRAWING PRO TANTO THE CONSENT WHICH BY R.S. SEC. 5219 IT
HAD PREVIOUSLY GIVEN TO STATE TAXATION OF SHARES OF STOCK OF NATIONAL
BANKS, CONGRESS DID NOT INVADE POWERS RESERVED TO THE STATES BY THE
TENTH AMENDMENT.  P. 361. 

(2)  AS APPLIED TO TAXES IN RESPECT OF WHICH LIENS HAD ATTACHED PRIOR
TO ITS PASSAGE, THE ACT OPERATES AS A WITHDRAWAL OF THE CONSENT OF THE
UNITED STATES TO BE SUED.  P. 362. 

A PROCEEDING AGAINST PROPERTY IN WHICH THE UNITED STATES HAS AN
INTEREST IS A SUIT AGAINST THE UNITED STATES. 

(3)  THE PRIOR GRANT OF THE PRIVILEGE TO TAX THE SHARES WAS ANALOGOUS
TO A GRATUITY OR BOUNTY, AND THE WITHDRAWAL OF THE PRIVILEGE INVADED NO
RIGHTS PROTECTED BY THE FIFTH AMENDMENT.  P. 362. 

MARICOPA COUNTY ET AL. V. VALLEY NATIONAL BANK OF PHOENIX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 317 U.S. 618, TO REVIEW THE AFFIRMANCE OF JUDGMENTS
GRANTING INJUNCTIONS IN TWO SUITS TO ENJOIN THE COLLECTION OF STATE AND
LOCAL TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE COUNTIES OF THE STATE OF ARIZONA AND CERTAIN COUNTY
OFFICERS.  RESPONDENT IS A NATIONAL BANKING ASSOCIATION INCORPORATED
UNDER THE LAWS OF THE UNITED STATES AND HAVING ITS PRINCIPAL BANKING
HOUSE AT PHOENIX, MARICOPA COUNTY, ARIZONA.  IT SUED PETITIONERS  FN1
TO RESTRAIN THE COLLECTION OF CERTAIN STATE, COUNTY, SCHOOL DISTRICT
AND MUNICIPAL TAXES FOR THE YEARS 1935 AND 1936 AND INVOKED THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
ARIZONA UNDER SEC. 24(1)(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC.
41(1)(A). 

RESPONDENT HAS TWO CLASSES OF SHARES OF CAPITAL STOCK OUTSTANDING -
COMMON AND PREFERRED.  PRIOR TO MARCH 9, 1933, NATIONAL BANKS WERE NOT
AUTHORIZED TO ISSUE PREFERRED SHARES.  ON THAT DAY THEY WERE GIVEN SUCH
AUTHORITY AND THE RECONSTRUCTION FINANCE CORPORATION WAS AUTHORIZED TO
SUBSCRIBE FOR SUCH SHARES.  ACT OF MARCH 9, 1933, 48 STAT. 1, TITLE
III, AS AMENDED BY SEC. 2 OF THE ACT OF MARCH 24, 1933, 48 STAT. 20, 12
U.S.C. SEC. 51A, SEC. 51D.  ON FEBRUARY 11, 1935, RESPONDENT ISSUED TO
THE RECONSTRUCTION FINANCE CORPORATION SOME 198,400 SHARES OF ITS
PREFERRED STOCK WITH A PAR VALUE OF $1,240,000.  BY SEC. 5219 OF THE
REVISED STATUTES, 12 U.S.C. SEC. 548, CONGRESS CONSENTED ON CERTAIN
CONDITIONS TO STATE TAXATION OF SHARES OF STOCK OF NATIONAL BANKING
ASSOCIATIONS.  ARIZONA TAXES SHARES OF STOCK OF BANKING CORPORATIONS. 
THE TAX IS PAID IN THE FIRST INSTANCE BY THE BANK WHICH IS ENTITLED TO
REIMBURSEMENT FROM THE SHAREHOLDER ON WHOM THE TAX LIABILITY ULTIMATELY
RESTS.  ARIZ. CODE (1939) SEC. 73-204, SEC. 73-205.  THE ARIZONA
STATUTES ALSO PROVIDE THAT A LIEN FOR ALL TAXES LEVIED SHALL ATTACH AS
OF THE FIRST MONDAY IN JANUARY OF EACH YEAR ON THE PROPERTY ASSESSED. 
SEC. 73-506.  ASSESSMENTS OF PERSONAL PROPERTY ARE MADE BY THE COUNTY
ASSESSOR BETWEEN THE FIRST MONDAY IN JANUARY AND THE FIRST DAY IN MAY
OF EACH YEAR.  SEC. 73-402.  STATE AND LOCAL TAXES LEVIED ON THE BASIS
OF THIS ASSESSMENT ARE COLLECTED BY THE COUNTY TREASURER AS EX OFFICIO
TAX COLLECTOR.  SEC. 73-605, SEC. 73-702.  PETITIONERS' ASSESSMENTS FOR
1935 INCLUDED RESPONDENT'S PREFERRED SHARES OWNED AND HELD BY THE
RECONSTRUCTION FINANCE CORPORATION.  ON THE BASIS OF THOSE ASSESSMENTS,
TAXES WERE LEVIED IN 1935 AGAINST RESPONDENT WHICH THEREUPON FILED ITS
BILL OF COMPLAINT IN THE FEDERAL DISTRICT COURT.  WHILE THE CAUSE WAS
PENDING THIS COURT DECIDED BALTIMORE NATIONAL BANK V. STATE TAX COMM'N,
297 U.S. 209, WHICH HELD THAT PREFERRED SHARES OF A NATIONAL BANK HELD
BY THE RECONSTRUCTION FINANCE CORPORATION WERE SUBJECT TO STATE
TAXATION BY REASON OF THE CONSENT GIVEN BY CONGRESS IN SEC. 5219 OF THE
REVISED STATUTES.  THAT DECISION WAS RENDERED ON FEBRUARY 3, 1936.  ON
MARCH 20, 1936, CONGRESS ENACTED A STATUTE PROVIDING THAT SHARES OF
PREFERRED STOCK OF NATIONAL BANKS "HERETOFORE OR HEREAFTER ACQUIRED BY"
THE RECONSTRUCTION FINANCE CORPORATION "SHALL NOT, SO LONG AS
RECONSTRUCTION FINANCE CORPORATION SHALL CONTINUE TO OWN THE SAME, BE
SUBJECT TO ANY TAXATION BY THE UNITED STATES, BY ANY TERRITORY,
DEPENDENCY, OR POSSESSION THEREOF, OR THE DISTRICT OF COLUMBIA, OR BY
ANY STATE, COUNTY, MUNICIPALITY, OR LOCAL TAXING AUTHORITY, WHETHER
NOW, HERETOFORE, OR HEREAFTER IMPOSED, LEVIED, OR ASSESSED, AND WHETHER
FOR A PAST, PRESENT, OR FUTURE TAXING PERIOD."  49 STAT. 1185, 12
U.S.C. SEC. 51D.  ON THE AUTHORITY OF THAT ACT, THE DISTRICT COURT,
AFTER FINDING THAT RESPONDENT'S REMEDY AT LAW WAS INADEQUATE, ISSUED A
PERMANENT INJUNCTION AGAINST THE COLLECTION BY PETITIONERS OF THAT
PORTION OF THE 1935 TAXES LEVIED ON RESPONDENT'S PREFERRED STOCK OWNED
BY THE RECONSTRUCTION FINANCE CORPORATION.  A PERMANENT INJUNCTION WAS
ALSO ISSUED IN A LIKE CAUSE OF ACTION BASED ON TAXES FOR THE YEAR 1936
WHICH WERE LEVIED AFTER MARCH 20, 1936.  THE JUDGMENTS IN THE TWO SUITS
WERE AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  130 F.2D 356.  THE CASE
IS HERE ON A PETITION FOR WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE
OF THE PUBLIC IMPORTANCE OF THE QUESTIONS RAISED.  PURSUANT TO THE ACT
OF AUGUST 24, 1937, 50 STAT. 751, 28 U.S.C. SEC. 401, THE CASE WAS
CERTIFIED TO THE ATTORNEY GENERAL AS INVOLVING THE CONSTITUTIONALITY OF
THE ACT OF MARCH 20, 1936.  IN RESPONSE TO THAT CERTIFICATION THE
UNITED STATES SUBMITTED A BRIEF AS AMICUS CURIAE. 

PETITIONERS CONTEND THAT THE ACT OF MARCH 20, 1936, VIOLATES THE
FIFTH AND THE TENTH AMENDMENTS.  THEY FURTHER ARGUE THAT THE WORD
"PERSON" AS USED IN THE FIFTH AMENDMENT INCLUDES COUNTIES AND STATES;
AND THAT THEY MAY RAISE THE TENTH AMENDMENT ISSUE SINCE THEY ARE
ASSERTING THE AUTHORITY OF THE STATE OF ARIZONA IN ASSESSING AND IN
ATTEMPTING TO COLLECT THE TAXES IN QUESTION.  WE NEED NOT DECIDE THE
LAST TWO QUESTIONS.  FOR EVEN IF WE ASSUME, ARGUENDO, THAT PETITIONERS
ARE RIGHT IN THOSE CONTENTIONS, WE ARE OF THE VIEW THAT THE JUDGMENT
BELOW MUST BE AFFIRMED. 

LITTLE NEED BE SAID IN ANSWER TO THE ARGUMENT THAT THE ACT VIOLATES
THE TENTH AMENDMENT.  THE AUTHORITY BY WHICH THE TAXES IN QUESTION WERE
LEVIED DID NOT STEM FROM THE POWERS "RESERVED TO THE STATES" UNDER THE
TENTH AMENDMENT.  IT WAS CONFERRED BY CONGRESS WHICH HAS UNDER THE
CONSTITUTION EXCLUSIVE AUTHORITY TO DETERMINE WHETHER AND TO WHAT
EXTENT ITS INSTRUMENTALITIES, SUCH AS THE RECONSTRUCTION FINANCE
CORPORATION, SHALL BE IMMUNE FROM STATE TAXATION.  SMITH V. KANSAS CITY
TITLE & TRUST CO., 255 U.S. 180, 211-213; FEDERAL LAND BANK V.
CROSLAND, 261 U.S. 374; PITTMAN V. HOME OWNERS' LOAN CORP., 308 U.S.
21, 33; FEDERAL LAND BANK V. BISMARCK LUMBER CO., 314 U.S. 95.  HENCE
WHEN CONGRESS WITHDREW THE PRIVILEGE WHICH IT HAD PREVIOUSLY GRANTED,
IT WAS NOT CURTAILING ANY POLITICAL POWER WHICH THE CONSTITUTION HAD
RESERVED TO ARIZONA.  SEE OWENSBORO NATIONAL BANK V. OWENSBORO, 173
U.S. 664; DES MOINES NATIONAL BANK V. FAIRWEATHER, 263 U.S. 103, 106,
AND CASES CITED. 

THE ARGUMENT THAT THE ACT OF MARCH 20, 1936, VIOLATES THE FIFTH
AMENDMENT IS BASED ON ITS RETROSPECTIVE FEATURE.  PETITIONERS CONTEND
THAT SINCE THE LIENS OF THE TAXES WERE IMPRESSED BEFORE THE EFFECTIVE
DATE OF THE ACT, THEY WERE PROPERTY RIGHTS WHICH CONGRESS COULD NOT
DESTROY.  WE NEED NOT CONSIDER THE CASE WHERE PRIOR TO THE WITHDRAWAL
OF THE PRIVILEGE THE TAX HAD BEEN COLLECTED OR THE TAX LIEN FORECLOSED
AND THE PROPERTY REDUCED TO THE POSSESSION OF THE TAXING AUTHORITY.  IN
THE INSTANT CASE THE STATE TAXING AUTHORITIES ARE ASSERTING RIGHTS
WHICH IF RECOGNIZED CAN BE ENFORCED BY THE MAINTENANCE OF A SUIT TO
ESTABLISH AND FORECLOSE A LIEN ON PROPERTY OF A FEDERAL
INSTRUMENTALITY, THE RECONSTRUCTION FINANCE CORPORATION.  CF. NEW YORK
V. MACLAY, 288 U.S. 290.  BUT EVEN A "PROCEEDING AGAINST PROPERTY IN
WHICH THE UNITED STATES HAS AN INTEREST IS A SUIT AGAINST THE UNITED
STATES."  UNITED STATES V. ALABAMA, 313 U.S. 274, 282.  NO SUCH SUIT
MAY BE MAINTAINED WITHOUT THE CONSENT OF THE UNITED STATES.  SUCH
CONSENT, THOUGH PREVIOUSLY GRANTED, HAS NOW BEEN WITHDRAWN.  AND THE
POWER TO WITHDRAW THE PRIVILEGE OF SUING THE UNITED STATES OR ITS
INSTRUMENTALITIES KNOWS NO LIMITATIONS.  LYNCH V. UNITED STATES, 292
U.S. 571, 581-582, AND CASES CITED.  NOR DID THE PRIOR GRANT OF THE
PRIVILEGE TO TAX THE SHARES RISE TO A HIGHER LEVEL THAN A GRATUITY OR
BOUNTY.  NOTHING WAS GIVEN IN EXCHANGE.  CF. CHRIST CHURCH V.
PHILADELPHIA CO., 24 HOW.  300, 302.  WHEN CONGRESS AUTHORIZED THE
STATES TO IMPOSE SUCH TAXATION, IT DID NO MORE THAN GRATUITOUSLY GRANT
THEM POLITICAL POWER WHICH THEY THERETOFORE LACKED.  ITS SOVEREIGN
POWER TO REVOKE THE GRANT REMAINED UNIMPAIRED, THE GRANT OF THE
PRIVILEGE BEING ONLY A DECLARATION OF LEGISLATIVE POLICY CHANGEABLE AT
WILL.  CF. DODGE V. BOARD OF EDUCATION, 302 U.S. 74.  HENCE, AS IN THE
CASE OF THE RECALL OF OTHER GRATUITIES (FRISBIE V. UNITED STATES, 157
U.S. 160, 166; CUMMINGS V. DEUTSCHE BANK, 300 U.S. 115, 122-124), THE
WITHDRAWAL OF THIS PRIVILEGE INVADED NO RIGHTS PROTECTED BY THE FIFTH
AMENDMENT.  AFFIRMED. 

FN1  FOR AN EARLIER PHASE OF THIS LITIGATION SEE EX PARTE BRANSFORD,
310 U.S. 354. 

MR. JUSTICE RUTLEDGE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :










CLEARFIELD TRUST CO. V. U.S., 318 U.S. 363 


NO. 490.  ARGUED FEBRUARY 5, 1943.  - DECIDED MARCH 1, 1943.  - 130 F.2D
93, AFFIRMED. 


1.  WHEN THE UNITED STATES DISBURSES ITS FUNDS OR PAYS ITS DEBTS, IT
IS EXERCISING A CONSTITUTIONAL FUNCTION OR POWER; AND ITS RIGHTS AND
DUTIES ON COMMERCIAL PAPER SO ISSUED ARE GOVERNED BY FEDERAL RATHER
THAN LOCAL LAW.  UNITED STATES V. GUARANTY TRUST CO., 293 U.S. 340,
DISTINGUISHED.  P. 366. 

2.  IN THE ABSENCE OF AN APPLICABLE ACT OF CONGRESS, IT IS FOR THE
FEDERAL COURTS TO FASHION THE GOVERNING RULE OF FEDERAL LAW ACCORDING
TO THEIR OWN STANDARDS.  P. 367. 

3.  REASONS WHICH AT TIMES MAY MAKE STATE LAW AN APPROPRIATE FEDERAL
RULE ARE SINGULARLY INAPPROPRIATE IN DETERMINING THE RIGHTS AND DUTIES
OF THE UNITED STATES ON COMMERCIAL PAPER WHICH IT ISSUES, SINCE THE
DESIRABILITY OF A UNIFORM RULE IN SUCH CASES IS PLAIN.  P. 367. 

4.  ALTHOUGH THE FEDERAL LAW MERCHANT, DEVELOPED UNDER SWIFT V.
TYSON, REPRESENTED GENERAL COMMERCIAL LAW RATHER THAN A CHOICE OF A
FEDERAL RULE DESIGNED TO PROTECT A FEDERAL RIGHT, IT NEVERTHELESS
STANDS AS A CONVENIENT SOURCE OF REFERENCE FOR FASHIONING FEDERAL RULES
APPLICABLE TO SUCH FEDERAL QUESTIONS AS ARE HERE INVOLVED.  P. 367. 

5.  THE RIGHT OF A DRAWEE TO RECOVER FROM ONE WHO PRESENTS FOR
PAYMENT A CHECK UPON WHICH THE ENDORSEMENT OF THE PAYEE WAS FORGED
ACCRUES WHEN THE PAYMENT IS MADE.  P. 368. 

6.  THE DRAWEE, WHETHER IT BE THE UNITED STATES OR ANOTHER, IS NOT
CHARGEABLE WITH THE KNOWLEDGE OF THE SIGNATURE OF THE PAYEE.  P. 369. 

7.  IF IT IS SHOWN THAT THE DRAWEE ON LEARNING OF THE FORGERY DID NOT
GIVE PROMPT NOTICE OF IT AND THAT DAMAGE RESULTED, RECOVERY BY THE
DRAWEE IS BARRED.  P. 369. 

THAT THE DRAWEE IS THE UNITED STATES AND THE LACHES THAT OF ITS
EMPLOYEES IS IMMATERIAL. 

8.  THE UNITED STATES IS NOT EXCEPTED FROM THE GENERAL RULES
GOVERNING THE RIGHTS AND DUTIES OF DRAWEES BY THE VASTNESS OF ITS
DEALINGS OR BY THE FACT THAT IT MUST ACT THROUGH AGENTS.  P. 369. 

9.  TO BAR RECOVERY BY A DRAWEE, THE DAMAGE ALLEGED TO HAVE BEEN
OCCASIONED BY DELAY IN GIVING NOTICE OF A FORGERY MUST BE ESTABLISHED
AND NOT LEFT TO CONJECTURE.  P. 369. 

10.  IN THIS CASE, THE SHOWING AS TO DAMAGE RESULTING FROM DELAY OF
THE UNITED STATES IN GIVING NOTICE OF A FORGERY, HELD NOT SUFFICIENT TO
BAR RECOVERY.  P. 370. 

IT APPEARED THAT THE PRESENTING BANK COULD STILL RECOVER FROM ITS
ENDORSER; AND THE ONLY SHOWING ON THE PART OF THE LATTER WAS THAT IF A
CHECK CASHED FOR A CUSTOMER IS RETURNED UNPAID OR FOR RECLAMATION A
SHORT TIME AFTER THE DATE ON WHICH IT IS CASHED, THE EMPLOYEES CAN
OFTEN LOCATE THE PERSON WHO CASHED IT. 

CLEARFIELD TRUST CO. ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 317 U.S. 619, TO REVIEW THE REVERSAL OF A JUDGMENT
AGAINST THE UNITED STATES IN AN ACTION BROUGHT BY IT TO RECOVER AN
AMOUNT PAID ON A FORGED GOVERNMENT CHECK. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ON APRIL 28, 1936, A CHECK WAS DRAWN ON THE TREASURER OF THE UNITED
STATES THROUGH THE FEDERAL RESERVE BANK OF PHILADELPHIA TO THE ORDER OF
CLAIR A. BARNER IN THE AMOUNT OF $24.20.  IT WAS DATED AT HARRISBURG,
PENNSYLVANIA, AND WAS DRAWN FOR SERVICES RENDERED BY BARNER TO THE
WORKS PROGRESS ADMINISTRATION.  THE CHECK WAS PLACED IN THE MAIL
ADDRESSED TO BARNER AT HIS ADDRESS IN MACKEYVILLE, PA. BARNER NEVER
RECEIVED THE CHECK.  SOME UNKNOWN PERSON OBTAINED IT IN A MYSTERIOUS
MANNER AND PRESENTED IT TO THE J.C. PENNEY CO. STORE IN CLEARFIELD,
PA., REPRESENTING THAT HE WAS THE PAYEE AND IDENTIFYING HIMSELF TO THE
SATISFACTION OF THE EMPLOYEES OF J.C. PENNEY CO.  HE ENDORSED THE CHECK
IN THE NAME OF BARNER AND TRANSFERRED IT TO J.C. PENNEY CO. IN EXCHANGE
FOR CASH AND MERCHANDISE.  BARNER NEVER AUTHORIZED THE ENDORSEMENT NOR
PARTICIPATED IN THE PROCEEDS OF THE CHECK.  J.C. PENNEY CO. ENDORSED
THE CHECK OVER TO THE CLEARFIELD TRUST CO. WHICH ACCEPTED IT AS AGENT
FOR THE PURPOSE OF COLLECTION AND ENDORSED IT AS FOLLOWS:  "PAY TO THE
ORDER OF FEDERAL RESERVE BANK OF PHILADELPHIA, PRIOR ENDORSEMENTS
GUARANTEED."  FN1  CLEARFIELD TRUST CO. COLLECTED THE CHECK FROM THE
UNITED STATES THROUGH THE FEDERAL RESERVE BANK OF PHILADELPHIA AND PAID
THE FULL AMOUNT THEREOF TO J.C. PENNEY CO. NEITHER THE CLEARFIELD TRUST
CO. NOR J.C. PENNEY CO. HAD ANY KNOWLEDGE OR SUSPICION OF THE FORGERY. 
EACH ACTED IN GOOD FAITH.  ON OR BEFORE MAY 10, 1936, BARNER ADVISED
THE TIMEKEEPER AND THE FOREMAN OF THE W.P.A. PROJECT ON WHICH HE WAS
EMPLOYED THAT HE HAD NOT RECEIVED THE CHECK IN QUESTION.  THIS
INFORMATION WAS DULY COMMUNICATED TO OTHER AGENTS OF THE UNITED STATES
AND ON NOVEMBER 30, 1936, BARNER EXECUTED AN AFFIDAVIT ALLEGING THAT
THE ENDORSEMENT OF HIS NAME ON THE CHECK WAS A FORGERY.  NO NOTICE WAS
GIVEN THE CLEARFIELD TRUST CO. OR J.C. PENNEY CO. OF THE FORGERY UNTIL
JANUARY 12, 1937, AT WHICH TIME THE CLEARFIELD TRUST CO. WAS NOTIFIED. 
THE FIRST NOTICE RECEIVED BY CLEARFIELD TRUST CO. THAT THE UNITED
STATES WAS ASKING REIMBURSEMENT WAS ON AUGUST 31, 1937. 

THIS SUIT WAS INSTITUTED IN 1939 BY THE UNITED STATES AGAINST THE
CLEARFIELD TRUST CO., THE JURISDICTION OF THE FEDERAL DISTRICT COURT
BEING INVOKED PURSUANT TO THE PROVISIONS OF SEC. 24(1) OF THE JUDICIAL
CODE, 28 U.S.C. SEC. 41(1).  THE CAUSE OF ACTION WAS BASED ON THE
EXPRESS GUARANTY OF PRIOR ENDORSEMENTS MADE BY THE CLEARFIELD TRUST CO.
J.C. PENNEY CO. INTERVENED AS A DEFENDANT.  THE CASE WAS HEARD ON
COMPLAINT, ANSWER AND STIPULATION OF FACTS.  THE DISTRICT COURT HELD
THAT THE RIGHTS OF THE PARTIES WERE TO BE DETERMINED BY THE LAW OF
PENNSYLVANIA AND THAT SINCE THE UNITED STATES UNREASONABLY DELAYED IN
GIVING NOTICE OF THE FORGERY TO THE CLEARFIELD TRUST CO., IT WAS BARRED
FROM RECOVERY UNDER THE RULE OF MARKET STREET TITLE & TRUST CO. V.
CHELTEN TRUST CO., 296 PA. 230, 145 A. 848.  IT ACCORDINGLY DISMISSED
THE COMPLAINT.  ON APPEAL THE CIRCUIT COURT OF APPEALS REVERSED.  130
F.2D 93.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI WHICH
WE GRANTED BECAUSE OF THE IMPORTANCE OF THE PROBLEMS RAISED AND THE
CONFLICT BETWEEN THE DECISION BELOW AND SECURITY-FIRST NAT. BANK V.
UNITED STATES, 103 F.2D 188, FROM THE NINTH CIRCUIT. 

WE AGREE WITH THE CIRCUIT COURT OF APPEALS THAT THE RULE OF ERIE R.
CO. V. TOMPKINS, 304 U.S. 64, DOES NOT APPLY TO THIS ACTION.  THE
RIGHTS AND DUTIES OF THE UNITED STATES ON COMMERCIAL PAPER WHICH IT
ISSUES ARE GOVERNED BY FEDERAL RATHER THAN LOCAL LAW.  WHEN THE UNITED
STATES DISBURSES ITS FUNDS OR PAYS ITS DEBTS, IT IS EXERCISING A
CONSTITUTIONAL FUNCTION OR POWER.  THIS CHECK WAS ISSUED FOR SERVICES
PERFORMED UNDER THE FEDERAL EMERGENCY RELIEF ACT OF 1935, 49 STAT.
115.  THE AUTHORITY TO ISSUE THE CHECK HAD ITS ORIGIN IN THE
CONSTITUTION AND THE STATUTES OF THE UNITED STATES AND WAS IN NO WAY
DEPENDENT ON THE LAWS OF PENNSYLVANIA OR OF ANY OTHER STATE.  CF. BOARD
OF COMMISSIONERS V. UNITED STATES, 308 U.S. 343; ROYAL INDEMNITY CO. V.
UNITED STATES, 313 U.S. 289.  THE DUTIES IMPOSED UPON THE UNITED STATES
AND THE RIGHTS ACQUIRED BY IT AS A RESULT OF THE ISSUANCE FIND THEIR
ROOTS IN THE SAME FEDERAL SOURCES.  FN2  CF. DEITRICK V. GREANEY, 309
U.S. 190; D'OENCH, DUHME & CO. V. FEDERAL DEPOSIT INS. CORP., 315 U.S.
447.  IN ABSENCE OF AN APPLICABLE ACT OF CONGRESS IT IS FOR THE FEDERAL
COURTS TO FASHION THE GOVERNING RULE OF LAW ACCORDING TO THEIR OWN
STANDARDS.  UNITED STATES V. GUARANTY TRUST CO., 293 U.S. 340, IS NOT
OPPOSED TO THIS RESULT.  THAT CASE WAS CONCERNED WITH A CONFLICT OF
LAWS RULE AS TO THE TITLE ACQUIRED BY A TRANSFEREE IN YUGOSLAVIA UNDER
A FORGED ENDORSEMENT.  SINCE THE PAYEE'S ADDRESS WAS YUGOSLAVIA, THE
CHECK HAD "SOMETHING OF THE QUALITY OF A FOREIGN BILL" AND THE LAW OF
YUGOSLAVIA WAS APPLIED TO DETERMINE WHAT TITLE THE TRANSFEREE
ACQUIRED. 

IN OUR CHOICE OF THE APPLICABLE FEDERAL RULE WE HAVE OCCASIONALLY
SELECTED STATE LAW.  SEE ROYAL INDEMNITY CO. V. UNITED STATES, SUPRA.
BUT REASONS WHICH MAY MAKE STATE LAW AT TIMES THE APPROPRIATE FEDERAL
RULE ARE SINGULARLY INAPPROPRIATE HERE.  THE ISSUANCE OF COMMERCIAL
PAPER BY THE UNITED STATES IS ON A VAST SCALE AND TRANSACTIONS IN THAT
PAPER FROM ISSUANCE TO PAYMENT WILL COMMONLY OCCUR IN SEVERAL STATES. 
THE APPLICATION OF STATE LAW, EVEN WITHOUT THE CONFLICT OF LAWS RULES
OF THE FORUM, WOULD SUBJECT THE RIGHTS AND DUTIES OF THE UNITED STATES
TO EXCEPTIONAL UNCERTAINTY.  IT WOULD LEAD TO GREAT DIVERSITY IN
RESULTS BY MAKING IDENTICAL TRANSACTIONS SUBJECT TO THE VAGARIES OF THE
LAWS OF THE SEVERAL STATES.  THE DESIRABILITY OF A UNIFORM RULE IS
PLAIN.  AND WHILE THE FEDERAL LAW MERCHANT, DEVELOPED FOR ABOUT A
CENTURY UNDER THE REGIME OF SWIFT V. TYSON, 16 PET. 1, REPRESENTED
GENERAL COMMERCIAL LAW RATHER THAN A CHOICE OF A FEDERAL RULE DESIGNED
TO PROTECT A FEDERAL RIGHT, IT NEVERTHELESS STANDS AS A CONVENIENT
SOURCE OF REFERENCE FOR FASHIONING FEDERAL RULES APPLICABLE TO THESE
FEDERAL QUESTIONS. 

UNITED STATES V. NATIONAL EXCHANGE BANK, 214 U.S. 302, FALLS IN THAT
CATEGORY.  THE COURT HELD THAT THE UNITED STATES COULD RECOVER AS
DRAWEE FROM ONE WHO PRESENTED FOR PAYMENT A PENSION CHECK ON WHICH THE
NAME OF THE PAYEE HAD BEEN FORGED, IN SPITE OF A PROTRACTED DELAY ON
THE PART OF THE UNITED STATES IN GIVING NOTICE OF THE FORGERY.  THE
COURT FOLLOWED LEATHER MANUFACTURERS BANK V. MERCHANTS BANK, 128 U.S.
26, WHICH HELD THAT THE RIGHT OF THE DRAWEE AGAINST ONE WHO PRESENTED A
CHECK WITH A FORGED ENDORSEMENT OF THE PAYEE'S NAME ACCRUED AT THE DATE
OF PAYMENT AND WAS NOT DEPENDENT ON NOTICE OR DEMAND.  THE THEORY OF
THE NATIONAL EXCHANGE BANK CASE IS THAT HE WHO PRESENTS A CHECK FOR
PAYMENT WARRANTS THAT HE HAS TITLE TO IT AND THE RIGHT TO RECEIVE
PAYMENT.  FN3  IF HE HAS ACQUIRED THE CHECK THROUGH A FORGED
ENDORSEMENT, THE WARRANTY IS BREACHED AT THE TIME THE CHECK IS CASHED. 
SEE MANUFACTURERS TRUST CO. V. HARRIMAN NATIONAL BANK TRUST CO., 146
MISC. 551, 262 N.Y.S. 482; BERGMAN V. AVENUE STATE BANK, 284 ILL. APP.
516, 1 N.E.2D 432.  THE THEORY OF THE WARRANTY HAS BEEN CHALLENGED. 
AMES, THE DOCTRINE OF PRICE V. NEAL, 4 HARV. L. REV., 297, 301-302.  IT
HAS BEEN URGED THAT "THE RIGHT TO RECOVER IS A QUASI CONTRACTUAL RIGHT,
RESTING UPON THE DOCTRINE THAT ONE WHO CONFERS A BENEFIT IN MISRELIANCE
UPON A RIGHT OR DUTY IS ENTITLED TO RESTITUTION."  WOODWARD, QUASI
CONTRACTS (1913) SEC. 80; FIRST NATIONAL BANK V. CITY NATIONAL BANK,
182 MASS. 130, 134, 65 N.E. 24.  BUT WHATEVER THEORY IS TAKEN, WE
ADHERE TO THE CONCLUSION OF THE NATIONAL EXCHANGE BANK CASE THAT THE
DRAWEE'S RIGHT TO RECOVER ACCRUES WHEN THE PAYMENT IS MADE.  THERE IS
NO OTHER BARRIER TO THE MAINTENANCE OF THE CAUSE OF ACTION.  THE THEORY
OF THE DRAWEE'S RESPONSIBILITY WHERE THE DRAWER'S SIGNATURE IS FORGED
(PRICE V. NEAL, 3 BURR.  1354; UNITED STATES V. CHASE NATIONAL BANK,
252 U.S. 485) IS INAPPLICABLE HERE.  THE DRAWEE, WHETHER IT BE THE
UNITED STATES OR ANOTHER, IS NOT CHARGEABLE WITH THE KNOWLEDGE OF THE
SIGNATURE OF THE PAYEE.  UNITED STATES V. NATIONAL EXCHANGE BANK,
SUPRA, P. 317; STATE V. BROADWAY NATIONAL BANK, 153 TENN. 113. 

THE NATIONAL EXCHANGE BANK CASE WENT NO FURTHER THAN TO HOLD THAT
PROMPT NOTICE OF THE DISCOVERY OF THE FORGERY WAS NOT A CONDITION
PRECEDENT TO SUIT.  IT DID NOT REACH THE QUESTION WHETHER LACK OF
PROMPT NOTICE MIGHT BE A DEFENSE.  WE THINK IT MAY.  IF IT IS SHOWN
THAT THE DRAWEE ON LEARNING OF THE FORGERY DID NOT GIVE PROMPT NOTICE
OF IT AND THAT DAMAGE RESULTED, RECOVERY BY THE DRAWEE IS BARRED.  SEE
LADD & TILTON BANK V. UNITED STATES, 30 F.2D 334; UNITED STATES V.
NATIONAL ROCKLAND BANK, 35 F.SUPP.  912; UNITED STATES V. NATIONAL CITY
BANK, 28 F.SUPP.  144.  THE FACT THAT THE DRAWEE IS THE UNITED STATES
AND THE LACHES THOSE OF ITS EMPLOYEES ARE NOT MATERIAL.  COOKE V.
UNITED STATES, 91 U.S. 389, 398.  THE UNITED STATES AS DRAWEE OF
COMMERCIAL PAPER STANDS IN NO DIFFERENT LIGHT THAN ANY OTHER DRAWEE. 
AS STATED IN UNITED STATES V. NATIONAL EXCHANGE BANK, 270 U.S. 527,
534, "THE UNITED STATES DOES BUSINESS ON BUSINESS TERMS."  IT IS NOT
EXCEPTED FROM THE GENERAL RULES GOVERNING THE RIGHTS AND DUTIES OF
DRAWEES "BY THE LARGENESS OF ITS DEALINGS AND ITS HAVING TO EMPLOY
AGENTS TO DO WHAT IF DONE BY A PRINCIPAL IN PERSON WOULD LEAVE NO ROOM
FOR DOUBT."  ID., P. 535.  BUT THE DAMAGE OCCASIONED BY THE DELAY MUST
BE ESTABLISHED AND NOT LEFT TO CONJECTURE.  CASES SUCH AS MARKET ST.
TITLE & TRUST CO. V. CHELTEN TRUST CO., SUPRA, PLACE THE BURDEN ON THE
DRAWEE OF GIVING PROMPT NOTICE OF THE FORGERY - INJURY TO THE DEFENDANT
BEING PRESUMED BY THE MERE FACT OF DELAY.  SEE LONDON & RIVER PLATE
BANK V. BANK OF LIVERPOOL, (1896) 1 Q.B. 7.  BUT WE DO NOT THINK THAT
HE WHO ACCEPTS A FORGED SIGNATURE OF A PAYEE DESERVES THAT PREFERRED
TREATMENT.  IT IS HIS NEGLECT OR ERROR IN ACCEPTING THE FORGER'S
SIGNATURE WHICH OCCASIONS THE LOSS.  SEE BANK OF COMMERCE V. UNION
BANK, 3 N.Y. 230, 236.  HE SHOULD BE ALLOWED TO SHIFT THAT LOSS TO THE
DRAWEE ONLY ON A CLEAR SHOWING THAT THE DRAWEE'S DELAY IN NOTIFYING HIM
OF THE FORGERY CAUSED HIM DAMAGE.  SEE WOODWARD, QUASI CONTRACTS (1913)
SEC. 25.  NO SUCH DAMAGE HAS BEEN SHOWN BY CLEARFIELD TRUST CO. WHO SO
FAR AS APPEARS CAN STILL RECOVER FROM J.C. PENNEY CO. THE ONLY SHOWING
ON THE PART OF THE LATTER IS CONTAINED IN THE STIPULATION TO THE EFFECT
THAT IF A CHECK CASHED FOR A CUSTOMER IS RETURNED UNPAID OR FOR
RECLAMATION A SHORT TIME AFTER THE DATE ON WHICH IT IS CASHED, THE
EMPLOYEES CAN OFTEN LOCATE THE PERSON WHO CASHED IT.  IT IS FURTHER
STIPULATED THAT WHEN J.C. PENNEY CO. WAS NOTIFIED OF THE FORGERY IN THE
PRESENT CASE NONE OF ITS EMPLOYEES WAS ABLE TO REMEMBER ANYTHING ABOUT
THE TRANSACTION OR CHECK IN QUESTION.  THE INFERENCE IS THAT THE MORE
PROMPT THE NOTICE THE MORE LIKELY THE DETECTION OF THE FORGER.  BUT
THAT FALLS SHORT OF A SHOWING THAT THE DELAY CAUSED A MANIFEST LOSS. 
THIRD NATIONAL BANK V. MERCHANTS' NATIONAL BANK, 76 HUN 475, 27 N.Y.S.
1070.  IT IS BUT ANOTHER WAY OF SAYING THAT MERE DELAY IS ENOUGH. 
AFFIRMED. 

FN1  GUARANTEE OF ALL PRIOR INDORSEMENTS ON PRESENTMENT FOR PAYMENT
OF SUCH A CHECK TO FEDERAL RESERVE BANKS OR MEMBER BANK DEPOSITORIES IS
REQUIRED BY TREASURY REGULATIONS.  31 CODE OF FEDERAL REGULATIONS SEC.
102.32, SEC. 202.33. 

FN2  VARIOUS TREASURY REGULATIONS GOVERN THE PAYMENT AND ENDORSEMENT
OF GOVERNMENT CHECKS AND WARRANTS AND THE REIMBURSEMENT OF THE
TREASURER OF THE UNITED STATES BY FEDERAL RESERVE BANKS AND MEMBER BANK
DEPOSITORIES ON PAYMENT OF CHECKS OR WARRANTS BEARING A FORGED
ENDORSEMENT.  SEE 31 CODE OF FEDERAL REGULATIONS SECS. 202.0, 202.32
202.34.  FORGERY OF THE CHECK WAS AN OFFENSE AGAINST THE UNITED
STATES.  CRIMINAL CODE SEC. 148, 18 U.S.C. SEC. 262. 

FN3  WE NEED NOT DETERMINE WHETHER THE GUARANTEE OF PRIOR
ENDORSEMENTS ADDS TO THE DRAWEE'S RIGHTS.  SEE BRANNAN'S NEGOTIABLE
INSTRUMENTS LAW (6TH ED.)  PP. 330-331, 816-817; FIRST NATIONAL BANK V.
CITY NATIONAL BANK, 182 MASS. 130, 134, 65 N.E. 24.  CF. HOME INS. CO.
V. MERCANTILE TRUST CO., 219 MO. APP. 645, 284 S.W. 834.  UNDER THE
THEORY OF THE NATIONAL EXCHANGE BANK CASE, THE WARRANTY OF THE TITLE OF
HIM WHO PRESENTS THE CHECK FOR PAYMENT WOULD BE IMPLIED IN ANY EVENT. 
SEE PHILADELPHIA NATIONAL BANK V. FULTON NATIONAL BANK, 25 F.2D 995,
997. 

MR. JUSTICE MURPHY AND MR. JUSTICE RUTLEDGE DID NOT PARTICIPATE IN
THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :










HELVERING V. GRIFFITHS, 318 U.S. 371 


NO. 467.  ARGUED DECEMBER 7, 1942.  - DECIDED MARCH 1, 1943.  - 129 F.2D
321, AFFIRMED. 


A HOLDER OF COMMON STOCK IN A CORPORATION WHICH HAD BUT THE ONE CLASS
OF STOCK OUTSTANDING RECEIVED, IN 1939, STOCK DIVIDENDS (BASED ON
EARNINGS AND PROFITS SUBSEQUENT TO FEBRUARY 28, 1913) IN COMMON STOCK
IDENTICAL WITH THE STOCK ON WHICH THEY WERE DECLARED.  THE DIVIDEND
STOCK WAS IN NO WAY REALIZED UPON IN 1939.  HELD, UPON CONSIDERATION OF
THE LEGISLATIVE HISTORY AND ADMINISTRATIVE CONSTRUCTION, THAT CONGRESS,
BY SECS. 22(A) AND 115(F)(1) OF THE INTERNAL REVENUE CODE, DID NOT
INTEND TO TAX SUCH STOCK DIVIDENDS; AND THAT THERE IS NO OCCASION TO
RECONSIDER EISNER V. MACOMBER, 252 U.S. 189.  PP. 372, 404. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. GRIFFITHS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 317 U.S. 619, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS WHICH REVERSED THE COMMISSIONER'S
DETERMINATION OF A DEFICIENCY IN RESPONDENT'S INCOME TAX. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE ACTS OF CONGRESS AND THE
ADMINISTRATIVE REGULATIONS THEREUNDER AFFORD A BASIS ON WHICH WE MAY
RECONSIDER THE DECISION IN EISNER V. MACOMBER, 252 U.S. 189, AND PASS
ON THE GOVERNMENT'S REQUEST THAT IT BE OVERRULED. 

DURING THE CALENDAR YEAR 1939 RESPONDENT OWNED 101 SHARES OF COMMON
STOCK OF THE STANDARD OIL COMPANY OF NEW JERSEY.  TWICE DURING THE YEAR
THAT CORPORATION MADE APPROPRIATE TRANSFERS FROM EARNED SURPLUS TO ITS
CAPITAL ACCOUNTS, IN AMOUNTS LESS THAN THE NET ACCUMULATION OF EARNINGS
AND PROFITS SUBSEQUENT TO FEBRUARY 28, 1913, AND AGAINST THEM ISSUED
STOCK DIVIDENDS.  ON JUNE 15, 1939, RESPONDENT RECEIVED A DIVIDEND OF
1.01 SUCH SHARES HAVING A FAIR MARKET VALUE OF $42.93.  ON DECEMBER 15,
1939, SHE RECEIVED A FURTHER DIVIDEND OF 1.53 SHARES, WHICH HAD A FAIR
MARKET VALUE OF $66.08.  THESE DIVIDENDS WERE IN COMMON STOCK IDENTICAL
WITH THE STOCK ON WHICH THEY WERE DECLARED, WHICH WAS THE ONLY STOCK
OUTSTANDING AT THE TIME THEY WERE MADE.  THE DIVIDEND STOCK WAS NOT
SOLD, REDEEMED, OR IN ANY WAY REALIZED UPON, AND THE TAXPAYER DID NOT
INCLUDE IT AS INCOME IN HER RETURN FOR 1939.  THE COMMISSIONER DID SO
INCLUDE IT, AND ON DECEMBER 8, 1941, SENT HER A NOTICE OF DEFICIENCY IN
THE AMOUNT OF $9.60.  THE BOARD OF TAX APPEALS REVERSED HIS
DETERMINATION, AND THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMED ON THE AUTHORITY OF EISNER V. MACOMBER, SUPRA.  129 F.2D 321. 
BECAUSE OF THE IMPORTANCE OF THE QUESTION WE GRANTED CERTIORARI. 

THE TAX IS ASSERTED UNDER THE GENERAL PROVISION OF SEC. 22(A) OF THE
INTERNAL REVENUE CODE THAT INCOME INCLUDES "DIVIDENDS," TOGETHER WITH
THE SPECIFIC PROVISION OF SEC. 115(F)(1)(1) THAT:  "A DISTRIBUTION MADE
BY A CORPORATION TO ITS SHAREHOLDERS IN ITS STOCK OR IN RIGHTS TO
ACQUIRE ITS STOCK SHALL NOT BE TREATED AS A DIVIDEND TO THE EXTENT THAT
IT DOES NOT CONSTITUTE INCOME TO THE SHAREHOLDER WITHIN THE MEANING OF
THE SIXTEENTH AMENDMENT TO THE CONSTITUTION."  FN1 

WAS CONGRESS THEREBY SAYING THAT SUCH A DIVIDEND AS WE HAVE HERE IS
NOT BEING TAXED, IN VIEW OF THE EISNER V. MACOMBER DECISION, OR WAS IT
SAYING THAT REGARDLESS OF THAT DECISION IT IS BEING TAXED?  EVENTS
WHICH MUST BE CONSIDERED TO DETERMINE WHICH CONGRESS INTENDED BEGIN
WITH THE ENACTMENT OF THE REVENUE ACT OF 1913, WHICH TAXED CORPORATE
"DIVIDENDS" IN GENERAL BUT SAID NOTHING OF STOCK DIVIDENDS IN
PARTICULAR.  FN2  THE TREASURY ATTEMPTED TO TAX THEM, AND THIS COURT
HELD THAT A DIVIDEND OF COMMON STOCK PAID ON STOCK OF THE SAME KIND WAS
NOT INCOME WITHIN THE MEANING OF THE ACT, INTIMATING, HOWEVER, THAT AS
USED IN THE SIXTEENTH AMENDMENT "INCOME" MIGHT HAVE A WIDER SCOPE. 
TOWNE V. EISNER, 245 U.S. 418(1918).  CONGRESS HAD MEANWHILE PROVIDED
THAT A "STOCK DIVIDEND SHALL BE CONSIDERED INCOME, TO THE AMOUNT OF ITS
CASH VALUE."  FN3  UNDER THAT ACT THE COMMISSIONER ASSERTED THAT A
DIVIDEND IN COMMON STOCK PAID ON COMMON STOCK CONSTITUTED INCOME WHEN
RECEIVED.  THIS COURT HELD IT WAS NOT INCOME WITHIN THE MEANING OF THE
SIXTEENTH AMENDMENT, CHIEFLY FOR THE REASON THAT INCOME HAD NOT BEEN
SEVERED FROM CAPITAL OR REALIZED BY SUCH A DISTRIBUTION.  EISNER V.
MACOMBER, 252 U.S. 189(1920).  THIS DECISION WAS BY A DIVIDED COURT,
JUSTICES HOLMES AND BRANDEIS EACH WRITING A DISSENTING OPINION, IN
WHICH RESPECTIVELY JUSTICES DAY AND CLARKE JOINED.  IT WAS PROMPTLY AND
SHARPLY CRITICISED.  FN4 

ALTHOUGH EISNER V. MACOMBER DEALT ONLY WITH A DIVIDEND OF COMMON
STOCK TO COMMON STOCKHOLDERS, IT WAS AT ONCE ACCEPTED AS THE BASIS FOR
A BROADER EXEMPTION.  THE TREASURY RULED THAT RECEIPT OF DIVIDEND STOCK
GENERALLY WAS NOT INCOME, AND CONGRESS PROVIDED IN SEC. 201(D) OF THE
REVENUE ACT OF 1921 THAT "A STOCK DIVIDEND SHALL NOT BE SUBJECT TO TAX
..."  FN5  TREASURY REGULATIONS UNDER THIS STATUTE AND SUBSEQUENT
REENACTMENTS CONSTRUED IT AS COVERING ALL DIVIDENDS PAID IN STOCK OF
THE DISTRIBUTING CORPORATION.  FN6 

THERE THE MATTER STOOD FOR NEARLY FIFTEEN YEARS, ALTHOUGH IN THE
MEANTIME THIS COURT POINTED OUT IN REORGANIZATION CASES THAT A
DISTINCTION EXISTED BETWEEN THE TYPE OF STOCK DIVIDEND BEFORE IT IN
EISNER V. MACOMBER AND ONE WHICH GAVE THE STOCKHOLDER A DIFFERENT
STOCK, OR DIFFERENT PROPORTIONATE INTERESTS, THAN BEFORE.  UNITED
STATES V. PHELLIS, 257 U.S. 156(1921); ROCKEFELLER V. UNITED STATES,
257 U.S. 176(1921); CULLINAN V. WALKER, 262 U.S. 134(1923); WEISS V.
STEARN, 265 U.S. 242(1924); MARR V. UNITED STATES, 268 U.S. 536(1925). 

INACTION DID NOT MEAN, HOWEVER, THAT PERSONS WHO RECEIVED STOCK
DIVIDENDS WERE ESCAPING ALL SUPPORT OF THE REVENUES.  TAXATION WAS ONLY
POSTPONED, AS IS TAXATION OF MANY SECURITIES TAKEN IN CORPORATE
REORGANIZATIONS, UNTIL SALE OR OTHER REALIZATION HAS OCCURRED.  THEIR
PROCEEDS WHEN REALIZED HAVE ALWAYS BEEN TAXABLE AS INCOME.  THE
TREASURY HAD COME TO COMPUTE THE POSTPONED TAX UNDER REGULATIONS WHICH
AS TO SOME CLASSES OF STOCK APPORTIONED THE COST BASIS BETWEEN THE OLD
STOCK AND THE DIVIDEND STOCK IN ACCORDANCE WITH THEIR RESPECTIVE FAIR
MARKET VALUES AT THE TIME THE STOCK DIVIDEND WAS ISSUED.  FN7  ON MARCH
30, 1936, THIS COURT GRANTED CERTIORARI IN KOSHLAND V. HELVERING, 298
U.S. 441, IN WHICH THE TAXPAYER CHALLENGED THE VALIDITY OF THE
APPORTIONMENT REGULATIONS.  297 U.S. 702.  SHE HAD OWNED CERTAIN
PREFERRED STOCK AND HAD RECEIVED A DIVIDEND OF COMMON SHARES THEREON. 
THE PREFERRED WAS THEREAFTER REDEEMED, AND THE COMMISSIONER APPLIED THE
ALLOCATION RULE, WHICH REDUCED THE COST BASIS OF THIS OLD STOCK.  THIS,
OF COURSE, INCREASED HER GAIN ON THE REDEMPTION OF THE OLD STOCK AND
ADDED TO HER TAX.  SHE ARGUED THAT HER DIVIDEND, NOTWITHSTANDING EISNER
V. MACOMBER, TO WHICH SHE GAVE A NARROW READING, WAS CONSTITUTIONALLY
TAXABLE AS INCOME AT THE TIME RECEIVED.  THE COURT HELD UNANIMOUSLY AND
SQUARELY THAT THE DIVIDEND IN QUESTION DID CONSTITUTE INCOME WITHIN THE
SIXTEENTH AMENDMENT, AND IN EFFECT LIMITED EISNER V. MACOMBER TO THE
KIND OF DIVIDEND THERE DEALT WITH.  BUT IT DID NOT OVERRULE THAT
DECISION OR QUESTION ITS AUTHORITY AS TO DIVIDENDS SUCH AS WE HAVE IN
THIS CASE.  WITH TWO JUSTICES DISSENTING IT STRUCK DOWN THE
APPORTIONMENT REGULATIONS AS BEING BEYOND STATUTORY AUTHORIZATION. 

WHILE THE COURT WAS CONSIDERING STOCK DIVIDENDS IN THE KOSHLAND CASE,
CONGRESS WAS CONSIDERING THEM IN CONNECTION WITH THE PENDING REVENUE
ACT FOR 1936. 

ON MARCH 3, 1936, THE PRESIDENT HAD SUGGESTED THE ENACTMENT OF A TAX
UPON THE UNDISTRIBUTED INCOME OF CORPORATIONS.  FN8  ON MARCH 26, 1936,
AND WHILE THE TAXPAYER'S PETITION FOR CERTIORARI IN THE KOSHLAND CASE
WAS PENDING, A SUBCOMMITTEE OF THE HOUSE WAYS AND MEANS COMMITTEE
RECOMMENDED THAT SUCH A TAX BE ENACTED IN LIEU OF THE EXISTING CAPITAL
STOCK, EXCESS-PROFITS, AND INCOME TAXES ON CORPORATIONS.  FN9  IT WAS
THOUGHT BY SOME AUTHORITIES THAT IMPOSITION DIRECTLY UPON SHAREHOLDERS
OF A TAX BASED ON THEIR PRO RATA SHARES OF CORPORATE EARNINGS WOULD BE
MORE SATISFACTORY THAN THE UNDISTRIBUTED-PROFITS TAX.  FN10  SERIOUS
CONSIDERATION OF THIS METHOD, WHICH HAD BEEN EMPLOYED IN EARLIER TIMES,
FN11  WAS FORECLOSED BY THE BELIEF THAT EISNER V. MACOMBER MADE IT
"IMPOSSIBLE" TO PUT INTO EFFECT.  FN12 

THE STATEMENTS OF MEMBERS OF CONGRESS AND OF RESPONSIBLE TREASURY
OFFICIALS AT THE HEARINGS AND DEBATES ON THE ACT ARE AT VARIANCE WITH
THE PRESENT ASSERTION OF THE GOVERNMENT THAT CONGRESS INTENDED SEC.
115(F)(1) TO CHALLENGE OR OVERRIDE THE DECISION TO WHICH IT HAD IN
OTHER SECTIONS OF THE ACT ACCOMMODATED ITSELF. 

AT THE HEARINGS OF THE CONGRESSIONAL COMMITTEES THE PROPOSED TAX WAS
ATTACKED AS BEING A MEASURE WHICH WOULD HAVE THE EFFECT OF FORCING THE
DISTRIBUTION BY CORPORATIONS OF ASSETS NEEDED IN THEIR BUSINESS.  ITS
SUPPORTERS ANTICIPATED THE DECISION OF THIS COURT IN THE KOSHLAND CASE
AND COUNTERED WITH STATEMENTS THAT DIVIDENDS TAXABLE AS INCOME TO THE
SHAREHOLDERS - WHICH WOULD HAVE THE EFFECT OF AVOIDING THE
UNDISTRIBUTED-PROFITS TAX ON THE CORPORATION  FN13  - COULD BE DECLARED
AND THE UNDISTRIBUTED-PROFITS TAX AVOIDED WITHOUT THE NECESSITY OF
DISTRIBUTING ASSETS.  FN14  NO TESTIMONY WAS GIVEN, HOWEVER, THAT
DIVIDENDS SUCH AS WE HAVE IN THIS CASE WERE LEGALLY TAXABLE OR INTENDED
TO BE TAXED.  FN15 

AS REPORTED BY THE HOUSE WAYS AND MEANS COMMITTEE AND PASSED IN THE
HOUSE, SEC. 115(F)(1) OF THE BILL PROVIDED:  "A DISTRIBUTION MADE BY A
CORPORATION TO ITS SHAREHOLDERS IN STOCK OF THE CORPORATION OR IN
RIGHTS TO ACQUIRE STOCK OF THE CORPORATION SHALL BE TREATED AS A
TAXABLE DIVIDEND TO THE EXTENT THAT SUCH DISTRIBUTION CONSTITUTES
INCOME TO THE SHAREHOLDER WITHIN THE MEANING OF THE SIXTEENTH AMENDMENT
TO THE CONSTITUTION AND REPRESENTS A DISTRIBUTION OF EARNINGS OR
PROFITS ACCUMULATED AFTER FEBRUARY 28, 1913."  FN16  THE COMMITTEE
REPORT STATED THAT:  "IT IS PROVIDED IN SEC. 115(F) THAT STOCK
DIVIDENDS SHALL BE SUBJECT TO TAX TO THE EXTENT THAT SUCH DIVIDENDS
CONSTITUTE INCOME TO THE SHAREHOLDER WITHIN THE MEANING OF THE
SIXTEENTH AMENDMENT TO THE CONSTITUTION."  FN17 

THE MANAGER OF THE BILL, CONGRESSMAN VINSON OF KENTUCKY, STATED ON
THE FLOOR OF THE HOUSE, WITH REFERENCE TO SEC. 115(F)(1):  "IN NO SENSE
IS THIS AN ATTACK UPON THE EISNER AGAINST MACOMBER DECISION.  THERE ARE
MANY DIVIDENDS RECEIVED IN STOCK AND STOCK RIGHTS THAT ARE
DISTINGUISHABLE FROM THE CHARACTER OF STOCK DIVIDEND IN THE MACOMBER
CASE, SUPRA, AND ARE ACTUAL REALIZED TAXABLE INCOME.  AS WE SEE IT, A
STOCK DIVIDEND THAT IS NOT TAXABLE IS ONE IN WHICH THE RELATIVE
INTEREST OF EACH SHAREHOLDER OF A CORPORATION IS UNCHANGED IN HIS STOCK
OWNERSHIP."  FN18  HE SUBMITTED A LEGAL MEMORANDUM FURNISHED BY ARTHUR
KENT, ACTING CHIEF COUNSEL OF THE BUREAU OF INTERNAL REVENUE, SETTING
FORTH CASES DEALING WITH THE TAXABILITY OF STOCK DIVIDENDS, SIXTEEN OF
WHICH, INCLUDING EISNER V. MACOMBER, HAD HELD STOCK DIVIDENDS
NONTAXABLE, AND TWELVE OF WHICH HAD HELD THAT THE DIVIDENDS WERE NOT
TRUE STOCK DIVIDENDS AND THUS WERE TAXABLE.  THIS MEMORANDUM WAS IN
SUPPORT OF KENT'S STATEMENT IN RESPONSE TO CONGRESSMAN VINSON'S
QUESTIONING AT THE HEARINGS BEFORE THE HOUSE WAYS AND MEANS COMMITTEE,
TO THE EFFECT THAT "THE CONSTITUTIONAL IMMUNITY OF THE TRUE STOCK
DIVIDEND RECOGNIZED OR DECLARED IN EISNER V. MACOMBER DOES NOT APPLY TO
ALL TYPES AND VARIETIES OF SO-CALLED STOCK DIVIDENDS."  FN19
CONGRESSMAN VINSON CALLED PARTICULAR AND FAVORABLE ATTENTION TO AN
ARTICLE APPROVING THE DECISION IN EISNER V. MACOMBER, PUBLISHED IN THE
SAME MONTH BY PROFESSOR MAGILL, WHO HAD SERVED AS SPECIAL ASSISTANT TO
THE SECRETARY OF THE TREASURY IN TAX MATTERS AND HAS ALSO SERVED AS
UNDERSECRETARY OF THE TREASURY.  FN20  CONGRESSMAN VINSON REITERATED
HIS VIEWS ON THE FOLLOWING DAY IN RESPONSE TO QUESTIONS BY CONGRESSMAN
TREADWAY, LEADER OF THE OPPOSITION TO THE BILL.  FN21 

THE OPINION OF THIS COURT IN THE KOSHLAND CASE WAS ANNOUNCED ON MAY
18, 1936, SIX DAYS AFTER THE SENATE FINANCE COMMITTEE CONCLUDED ITS
HEARINGS.  THIS COMMITTEE REPORTED OUT SEC. 115(F)(1) IN THE FORM IN
WHICH IT IS FOUND IN THE ACT:  "A DISTRIBUTION MADE BY A CORPORATION TO
ITS SHAREHOLDERS IN ITS STOCK OR IN RIGHTS TO ACQUIRE ITS STOCK SHALL
NOT BE TREATED AS A DIVIDEND TO THE EXTENT THAT IT DOES NOT CONSTITUTE
INCOME TO THE SHAREHOLDER WITHIN THE MEANING OF THE SIXTEENTH AMENDMENT
TO THE CONSTITUTION."  IT STATED IN EXPLANATION OF THE CHANGE:  "THIS
SUBSECTION OF THE HOUSE BILL, UNDER WHICH STOCK DIVIDENDS ARE MADE
TAXABLE TO THE FULL EXTENT PERMITTED BY THE CONSTITUTION, IS RETAINED
BY YOUR COMMITTEE, EXCEPT FOR CHANGES MADE NECESSARY BY VIRTUE OF THE
REPORTED AMENDMENT OF SECTION 115(A) AND IN THE INTEREST OF GREATER
CLARITY."  FN22 

SENATORS BLACK AND LA FOLLETTE OF THE SENATE FINANCE COMMITTEE
SUBMITTED A MINORITY REPORT RECOMMENDING AN INCREASE IN THE
UNDISTRIBUTED-PROFITS TAX RATES, AND ALSO THAT SEC. 115(F)(1)
SPECIFICALLY ADOPT THE FORMULA OF THE RECENTLY DECIDED KOSHLAND CASE,
FOR NO APPARENT REASON OTHER THAN A BELIEF THAT IN ITS PRESENT FORM IT
DID NOT CLEARLY HAVE THE EFFECT OF TAXING EVEN THE TYPE OF STOCK
DIVIDENDS WHICH THE COURT HELD IN THAT CASE COULD BE TAXED. 

TO THIS END THEY RECOMMENDED THAT SEC. 115(F)(1) "SPECIFICALLY
PROVIDE THAT THERE SHALL BE NO UNDISTRIBUTED-PROFITS TAX ON STOCK
DIVIDENDS WHICH ARE TAXABLE INCOME FOR THE INDIVIDUAL RECIPIENT BECAUSE
THE STOCK 'GIVES THE STOCKHOLDER AN INTEREST DIFFERENT FROM THAT WHICH
HIS FORMER STOCKHOLDINGS REPRESENTED.'"  FN23  IN DEBATE ON THE FLOOR
OF THE SENATE, SENATOR BLACK SAID THAT: "AS ALL SENATORS KNOW, UNTIL
ABOUT 2 WEEKS AGO IT WAS GENERALLY BELIEVED THAT IT WAS IMPOSSIBLE TO
TAX STOCK DIVIDENDS AS INCOME OF THE RECIPIENT OF THOSE STOCK
DIVIDENDS.  ABOUT 2 WEEKS AGO, HOWEVER, THE SUPREME COURT OF THE UNITED
STATES RENDERED AN OPINION WHICH APPEARED IN THE RECORD, IN WHICH IT
DECIDED IF THOSE STOCK DIVIDENDS WERE DECLARED IN A DIFFERENT TYPE OF
STOCK THAN THE STOCK WHICH WAS ORIGINALLY HELD BY THE OWNER, THAT THOSE
DIVIDENDS DID CONSTITUTE ACTUAL INCOME - TAXABLE INCOME, IF YOU PLEASE
IN THE HANDS OF THE STOCKHOLDER RECIPIENT.    "THAT BEING TRUE, WE
HAVE PROVIDED IN SUCH MANNER AS TO AVOID ANY POSSIBLE MISUNDERSTANDING,
THAT STOCK DIVIDENDS DECLARED IN SUCH MANNER THAT THEY ARE TAXABLE IN
THE HANDS OF THE RECIPIENT WILL BE CONSIDERED AS DISTRIBUTED PROFITS
AGAINST WHICH NO UNDISTRIBUTED-PROFITS TAX IS IMPOSED."  FN24 

SENATOR BONE ASKED:  "WOULD IT NOT BE POSSIBLE FOR CORPORATIONS TO
EVADE THE EFFECT OF THAT KIND OF DECISION OF THE SUPREME COURT BY
DISTRIBUTING STOCK OF A CHARACTER THAT WOULD ESCAPE TAXATION?"  SENATOR
BLACK ANSWERED THAT THEY COULD, BUT THAT THEY WOULD THEN BE SUBJECT TO
THE UNDISTRIBUTED-PROFITS TAX.  FN25 

IN RESPONSE TO A QUESTION BY SENATOR ADAMS WHETHER IT WOULD NOT BE
POSSIBLE TO TAX STOCKHOLDERS IN CORPORATIONS UPON UNDISTRIBUTED
CORPORATE EARNINGS, AS PARTNERSHIPS WERE TAXED UPON UNDISTRIBUTED
PARTNERSHIP EARNINGS, SENATOR BLACK STATED THAT THIS WAS "IMPOSSIBLE,"
FN26  BUT THAT "IN ORDER TO ACHIEVE THE SAME RESULT WE HAVE SUGGESTED A
PROPOSAL WHICH IMPOSES NO CORPORATE TAX ON UNDISTRIBUTED PROFITS IF THE
CORPORATION DECLARES A STOCK DIVIDEND OF SUCH NATURE AS TO BE TAXABLE
UNDER THE RECENT SUPREME COURT OPINION.  IN THAT CASE, THE CASE OF
KOSHLAND AGAINST HELVERING, THE COURT DISTINGUISHED CLEARLY AND
UNEQUIVOCALLY BETWEEN A NORMAL STOCK DIVIDEND OF THE SAME KIND AND
NATURE AS THE STOCK ON WHICH THE DIVIDEND WAS DECLARED AND A STOCK
DIVIDEND OF A DISTINCTLY DIFFERENT NATURE FROM THE STOCK ON WHICH THE
DIVIDEND WAS DECLARED.  IN ORDER TO CARRY OUT AND OBTAIN THE FULL
BENEFIT OF THAT, SO THAT WE CAN PERMIT EVERY CORPORATION, IF IT
DESIRES, TO RETAIN 100 CENTS OF EVERY DOLLAR IN ITS TREASURY, IF ITS
STOCKHOLDERS WISH, WE HAVE PROVIDED THAT THERE SHALL NOT BE ONE DOLLAR
OF CORPORATE UNDISTRIBUTED PROFIT TAX IMPOSED UPON THAT CORPORATION IF
IT DISTRIBUTES ITS DIVIDENDS IN A STOCK DIVIDEND WHICH IS TAXABLE IN
THE HANDS OF THE STOCKHOLDERS."  FN27 

SENATOR LA FOLLETTE SAID ON THE FLOOR OF THE SENATE THAT "UNDER ALL
THESE MEASURES - UNDER THE HOUSE BILL, UNDER THE SENATE COMMITTEE BILL,
AND UNDER THIS AMENDMENT - ANY CORPORATION DESIRING TO RETAIN 100
PERCENT OF ITS STATUTORY NET INCOME FREE FROM INCREASED TAX MAY DO SO
BY PAYING OUT TO ITS STOCKHOLDERS A DIVIDEND WHICH IS TAXABLE UNDER THE
SIXTEENTH AMENDMENT."  FN28 

SENATOR ROBINSON STATED HIS APPROVAL OF THE PROFFERED AMENDMENT, BUT
SUGGESTED THAT IT BE WITHDRAWN AND THE MATTER TAKEN UP IN CONFERENCE. 
THE AMENDMENT WAS ACCORDINGLY WITHDRAWN, BUT WAS NOT ACTED UPON BY THE
CONFERENCE.  FN29 

THE MEANING OF SEC. 115(F)(1) WAS CRITICAL IN THE ADMINISTRATION BOTH
OF THE UNDISTRIBUTED-PROFITS TAX UPON CORPORATIONS AND OF THE INCOME
TAX UPON SHAREHOLDERS.  THIS WAS NOT ITS ONLY IMPORTANCE, HOWEVER. 
LIKE THE EARLIER REVENUE ACTS, THE REVENUE ACT OF 1936 CONTAINED
PROVISIONS INTENDED TO COPE WITH THE PROBLEM OF EVASION OF INCOME TAXES
BY SHAREHOLDERS THROUGH FAILURE TO DISTRIBUTE CORPORATE INCOME.  FN30
THESE PROVISIONS HAD BEEN DRAFTED TO AVOID THE LIMITATIONS SET UPON
CONGRESSIONAL POWER BY EISNER V. MACOMBER.  IT WAS GENERALLY BELIEVED
THAT THEY HAD FAILED, AND WOULD FAIL, FULLY TO ACCOMPLISH THEIR
PURPOSE, AND THAT FULLY EFFECTIVE PROVISIONS WOULD ENTAIL A CHALLENGE
OF THE AUTHORITY OF EISNER V. MACOMBER.  FN31 

IN THIS STATE OF AFFAIRS, THE TREASURY ISSUED REGULATIONS WHICH
PLAINLY CONSTRUED SEC. 115(F)(1) NOT AS REPUDIATING EISNER V. MACOMBER
BY TAXING STOCK DIVIDENDS BUT AS EXEMPTING THEM AND ADOPTING THE
EXISTING DECISIONS, INCLUDING EISNER V. MACOMBER.  ARTICLE 115-7 OF
REGULATIONS 94, ISSUED UNDER THE REVENUE ACT OF 1936, SET FORTH
REFERENCES TO THE COURT'S DECISIONS IN MANY CASES, AND SAID:  "A STOCK
DIVIDEND DOES NOT CONSTITUTE INCOME IF THE NEW SHARES CONFER NO
DIFFERENT RIGHTS OR INTERESTS THAN DID THE OLD - THE NEW CERTIFICATES
PLUS THE OLD REPRESENTING THE SAME PROPORTIONATE INTEREST IN THE NET
ASSETS OF THE CORPORATION AS DID THE OLD."  THREE EXAMPLES FOLLOWED,
THE SECOND RELATING TO A DIVIDEND IDENTICAL WITH THE ONE BEFORE US.
THE EXAMPLE CONCLUDED:  "THE STOCK SO DISTRIBUTED DOES NOT CONSTITUTE A
TAXABLE STOCK DIVIDEND TO THE SHAREHOLDERS."  THE TREASURY ALSO ISSUED
A STATEMENT OF GENERAL POLICY AS TO STOCK DIVIDENDS, TO THE EFFECT THAT
IT WOULD ALLOW A DIVIDENDS-PAID CREDIT AGAINST THE UNDISTRIBUTED
PROFITS TAX WITH RESPECT TO STOCK DIVIDENDS WHICH WERE CLEARLY TAXABLE
TO STOCKHOLDERS AND REFUSE SUCH CREDIT WITH RESPECT TO STOCK DIVIDENDS
WHICH WERE "CLEARLY NONTAXABLE TO THE SHAREHOLDER"; AND WHERE
TAXABILITY WAS A DEBATABLE QUESTION, IT WOULD TENTATIVELY ALLOW A
DIVIDENDS-PAID CREDIT IF THE CORPORATION CLAIMING THE CREDIT SHOULD
FILE PROPER WAIVERS OR AGREEMENTS TO PROTECT THE INTERESTS OF THE
GOVERNMENT PENDING FINAL DETERMINATION OF THE TAXABILITY TO
SHAREHOLDERS OF THE DISTRIBUTION, EITHER BY CLOSING AGREEMENT EXECUTED
BY ALL SHAREHOLDERS OR BY A FINAL ADJUDICATION IN COURT.  FN32 

ADMINISTRATION OF SEC. 115(F)(1) WAS UNDERTAKEN AND CONTINUED UPON
THE BASIS OF THIS CONSTRUCTION, AND NO EFFORT WAS MADE TO OBTAIN A
DIFFERENT ONE.  ON THE CONTRARY, THE GOVERNMENT IN THIS COURT TOOK THE
POSITION THAT THE MEANING OF SEC. 115(F)(1) WAS CORRECTLY STATED BY
CONGRESSMAN VINSON ON THE FLOOR OF THE HOUSE AS QUOTED INFRA, P. 380. 
FN33 

OTHER AGENCIES OF THE GOVERNMENT ACCEPTED THIS SAME VIEW OF THE
MEANING OF THE STATUTE, AUTHORIZING THE ISSUANCE BY CORPORATIONS
SUBJECT TO THEIR SUPERVISION OF SECURITIES OTHER THAN COMMON STOCK, AT
VARIANCE WITH THEIR USUAL POLICY AND IN ORDER TO PERMIT THE
CORPORATIONS TO DO WHAT THE TREASURY ASSURED THEM WAS NECESSARY TO
AVOID THE PAYMENT OF UNDISTRIBUTED-PROFITS TAXES.  FN34 

THE UNDISTRIBUTED-PROFITS TAX EVOKED A VOLUMINOUS LITERATURE, WHICH
SHOWED ALMOST UNIVERSAL AGREEMENT WITH THE CORRECTNESS OF THE
TREASURY'S CONTEMPORANEOUS STATEMENT OF THE MEANING OF THE STATUTE. 
FN35 

WE THINK IF CONGRESS HAD PASSED OR INTENDED TO PASS AN ACT
CHALLENGING A WELL KNOWN CONSTITUTIONAL DECISION OF THIS COURT THERE
WOULD APPEAR AT LEAST ONE CLEAR STATEMENT OF THAT PURPOSE EITHER FROM
ITS PROPONENTS OR ITS ADVERSARIES.  NOT ONE CONTEMPORANEOUS WORD IN OR
OUT OF CONGRESS DISCLOSES THE PURPOSE WHICH THE GOVERNMENT SAYS WE
SHOULD FIND THAT THIS LEGISLATION ACCOMPLISHED. 

AGAINST THIS BACKGROUND, IT WAS PROPOSED TO INCORPORATE AN
UNDISTRIBUTED-PROFITS TAX IN THE PENDING REVENUE ACT FOR 1938.  AS
PROPOSED AND ENACTED, SEC. 115(F)(1) WAS THE SAME AS IN THE 1936 ACT. 
FN36  LIKE EARLIER ACTS, THE REVENUE ACT OF 1938, AS PROPOSED AND
ENACTED, CONTAINED PROVISIONS INTENDED TO CONFORM WITH THE AUTHORITY OF
EISNER V. MACOMBER,  FN37  AND IT WAS ATTACKED AS EMBODYING THE
PRINCIPLE OF FORCING THE DISTRIBUTION OF NEEDED CORPORATE ASSETS.  THE
RATE OF THE UNDISTRIBUTED-PROFITS TAX WAS, HOWEVER, VERY MATERIALLY
LOWER THAN IN THE 1936 ACT.  FN38  THIS WOULD HAVE HAD THE EFFECT OF
DIMINISHING THE AMOUNT WHICH WOULD BE COLLECTED FROM THE CORPORATION AS
UNDISTRIBUTED-PROFITS TAX DESPITE THE DECLARATION OF A NONTAXABLE STOCK
DIVIDEND.  DESPITE THESE FACTORS, AGAIN THERE WAS NOT THE SLIGHTEST
SUGGESTION OF THE VIEW THAT SEC. 115(F)(1) HAD MADE OR HAD INTENDED TO
MAKE ALL STOCK DIVIDENDS TAXABLE; ON THE CONTRARY, THERE WAS CONTINUED
RECOGNITION OF THE AUTHORITY OF EISNER V. MACOMBER.  FN39  SECTION
115(F)(1) WAS REENACTED WHILE THE TREASURY REGULATION AND RULINGS ON
ITS MEANING STOOD UNAMENDED AND IN THEIR ORIGINAL FORM.  FN40 

THE TREASURY ADHERED TO ITS EARLIER VIEWS OF THE MEANING OF SEC.
115(F)(1) BY REPROMULGATING ITS FORMER REGULATION UNDER THE REVENUE ACT
OF 1938 AND UNDER THE INTERNAL REVENUE CODE,  FN41  AND IT STOOD
UNAMENDED AT THE TIME OF THE RECEIPT OF THE STOCK DIVIDENDS HERE IN
QUESTION.  CONGRESS IN 1939 ENACTED BASIS PROVISIONS INCORPORATING THE
LANGUAGE OF SEC. 115(F)(1).  FN42  IT WAS NOT UNTIL NOVEMBER 15, 1940,
AND AFTER THE RECEIPT OF THE DIVIDENDS HERE INVOLVED, THAT THE TREASURY
AMENDED THE REGULATION, AND THEN ONLY BY STRIKING OUT ALL AFTER THE
FIRST SENTENCE.  FN43  THIS ACTION FOLLOWED THE DECISION OF THIS COURT
IN HELVERING V. BRUUN, 309 U.S. 461, ON MARCH 25, 1940, WHICH REJECTED
THE CONCEPT THAT TAXABLE GAIN COULD ARISE ONLY WHEN THE TAXPAYER WAS
ABLE TO SEVER INCREMENT FROM HIS ORIGINAL CAPITAL.  IT PRECEDED BY TEN
DAYS THE DECISION IN HELVERING V. HORST, 311 U.S. 112, WHICH HELD THAT
THERE WAS NO EXEMPTION FROM TAXATION WHERE ECONOMIC GAIN IS ENJOYED "BY
SOME EVENT OTHER THAN THE TAXPAYER'S PERSONAL RECEIPT OF MONEY OR
PROPERTY."  ID. AT 116.  EACH OF THESE DECISIONS UNDERMINED FURTHER THE
ORIGINAL THEORETICAL BASES OF THE DECISION IN EISNER V. MACOMBER. 

THE GOVERNMENT SAYS THAT THE TIME HAS COME WHEN EISNER V. MACOMBER
MUST BE OVERRULED, AND THAT WE SHOULD CONSTRUE SEC. 115(F)(1) AS
INTENDED TO TAX THE DIVIDENDS HERE IN QUESTION AND THUS TO REQUIRE
RECONSIDERATION OF THAT DECISION.  IT SHOULD BE OBSERVED THAT THE
QUESTION OF THE CONSTITUTIONAL VALIDITY OF EISNER V. MACOMBER IS
PLAINLY ONE OF THE FIRST MAGNITUDE, BUT THIS IS NOT TO SAY THAT IT IS
PRESENTED IN THIS CASE.  UNDER OUR JUDICIAL TRADITION WE DO NOT DECIDE
WHETHER A TAX MAY CONSTITUTIONALLY BE LAID UNTIL WE FIND THAT CONGRESS
HAS LAID IT.  UNLESS THE TAX ASSERTED BY THE COMMISSIONER HAS BEEN
AUTHORIZED BY CONGRESS, IT FAILS OF VALIDITY BEFORE WE EVEN REACH THE
CONSTITUTIONAL QUESTION.  TO REACH THAT QUESTION WE MUST DECIDE WHETHER
CONGRESS INTENDED BY SEC. 115(F)(1) TO DO WHAT EISNER V. MACOMBER
SQUARELY HELD THAT IT COULD NOT.  WE CANNOT FIND THAT IT DID. 

THE GOVERNMENT CANNOT SUSTAIN ITS POSITION ON A LITERAL READING OF
SEC. 115(F)(1).  UNLIKE THE REVENUE ACT OF 1916,  FN44  IT DOES NOT
STATE THAT ALL STOCK DIVIDENDS ARE TAXABLE.  INSTEAD, SEC. 115(F)(1)
QUALIFIES THE GENERALITY OF SEC. 22(A) BY PROVIDING THAT A DISTRIBUTION
MADE IN SHARES OF THE CORPORATION'S STOCK "SHALL NOT BE TREATED AS A
DIVIDEND TO THE EXTENT THAT IT DOES NOT CONSTITUTE INCOME TO THE
SHAREHOLDER WITHIN THE MEANING OF THE SIXTEENTH AMENDMENT.  ..."  IF
THE STATUTE IS TO BE LITERALLY READ, USE OF "DOES" INSTEAD OF SOME WORD
OF FUTURITY INDICATES THAT THE TIME OF ENACTMENT OR AT THE LATEST THE
TIME OF RECEIPT OF THE DIVIDEND IS THE CRITICAL ONE FOR DETERMINING
TAXABILITY.  UNDER EITHER VIEW THESE DIVIDENDS WOULD NOT BE TAXABLE. 
THE PARTIES ARE AGREED THAT FOR THE PURPOSES OF THIS DECISION THE
MEANING OF THE CONSTITUTION MUST BE FOUND IN THE DECISIONS OF THIS
COURT, AND WHEN THESE DIVIDENDS WERE RECEIVED EISNER V. MACOMBER FIXED
THE MEANING CONTRARY TO THE GOVERNMENT'S POSITION. 

THE ADMINISTRATIVE AND LEGISLATIVE HISTORY OF THE STATUTE SQUARELY
CONFLICT WITH THE GOVERNMENT'S POSITION IN THIS CASE. 

THE TREASURY REGULATION ISSUED UNDER SEC. 115(F)(1) IMMEDIATELY AFTER
IT WAS FIRST ENACTED STATES IN TERMS THAT THE STATUTE WAS NOT INTENDED
TO LAY A TAX ON THE FACTS OF THIS CASE AND OF EISNER V. MACOMBER, AND
THE TREASURY ADVISED TAXPAYERS BY ANOTHER RULING THAT SOME STOCK
DIVIDENDS WERE "CLEARLY" NONTAXABLE.  IN WHITE V. WINCHESTER CLUB, 315
U.S. 32, 41, WE SAID THAT SUCH "SUBSTANTIALLY CONTEMPORANEOUS
EXPRESSIONS OF OPINION ARE HIGHLY RELEVANT AND MATERIAL EVIDENCE OF THE
PROBABLE GENERAL UNDERSTANDING OF THE TIMES AND OF THE OPINIONS OF MEN
WHO PROBABLY WERE ACTIVE IN THE DRAFTING OF THE STATUTE."  FN45  THE
STATUTE WAS REENACTED IN ITS ORIGINAL FORM AFTER HAVING BEEN IN FORCE
FOR TWO YEARS, AND AFTER A LONG CONTROVERSY CENTERING AROUND THE
MEANING OF THE STATUTE WHICH ASSUMED THROUGHOUT THE CORRECTNESS OF THE
ADMINISTRATIVE CONSTRUCTION.  THIS COURT HAS DENIED RETROACTIVE EFFECTS
TO AMENDMENTS TO VALID TREASURY REGULATIONS WHICH HAVE SURVIVED
REENACTMENT OF THE STATUTE, EVEN IN THE ABSENCE OF ANY AFFIRMATIVE
INDICATION THAT THE SUBJECT-MATTER OF THE STATUTE AND REGULATION WAS
CALLED TO THE ATTENTION OF CONGRESS.  FN46  THE EFFECT OF REENACTMENT
IN THE ABSENCE OF SUCH AFFIRMATIVE INDICATIONS OF AGREEMENT HAS BEEN
STATED IN VARIOUS AND NOT ENTIRELY CONSISTENT TERMS.  FN47  THIS IS A
QUESTION WE DO NOT NOW NEED TO EXAMINE, FOR THERE ARE IN THIS CASE MANY
INDICATIONS THAT CONGRESS WAS IN COMPLETE AGREEMENT WITH THE TREASURY
ON THE QUESTION OF THE TAXABILITY OF THE STOCK DIVIDENDS HERE
INVOLVED.  WE WOULD THINK IT UNQUESTIONABLE THAT IN THIS CASE THE
TREASURY COULD NOT RETROACTIVELY AMEND THE REGULATION TO THE PREJUDICE
OF THE RESPONDENT, EXCEPT FOR THE GOVERNMENT'S ASSERTION THAT IT SHOULD
BE DISREGARDED UPON THE AUTHORITY OF HELVERING V. HALLOCK, 309 U.S.
106, 121, NOTE 8, AND THAT, IN ANY EVENT, UNDER SEC. 3791(B) OF THE
INTERNAL REVENUE CODE THE SECRETARY OR COMMISSIONER MUST BE HELD TO
HAVE AUTHORITY IN ANY CASE TO MAKE A RETROACTIVE AMENDMENT OF A
REGULATION. 

THE HALLOCK CASE IS CLEARLY INAPPOSITE.  THERE IT WAS HELD THAT
TREASURY REGULATIONS ISSUED MORE THAN 11 YEARS AFTER THE ENACTMENT OF
THE GOVERNING REVENUE ACT OF 1926,  FN48  IN SUBMISSION TO THE DECISION
OF THIS COURT IN 1935 OF THE ST. LOUIS TRUST CO. CASES, 296 U.S. 39,
48, COULD NOT PREVENT THE COURT FROM OVERRULING THOSE CASES ON FACTS
ENTIRELY ANTEDATING THEM.  THAT REGULATION DID NOT PURPORT TO CONSTRUE
THE MEANING OF THE STATUTE, AS DID THIS ONE, BUT SIMPLY TO ACKNOWLEDGE
A CONSTITUTIONAL LIMIT IMPOSED BY THIS COURT UPON THE OPERATION OF A
PREVIOUSLY ENACTED STATUTE; IT WAS NOT IN EFFECT WHEN THE TRANSACTIONS
INVOLVED WERE ENTERED UPON; AND THERE HAD BEEN NO REENACTMENT OF THE
STATUTE WHILE THE REGULATION WAS IN FORCE. 

NOR DO WE CONCUR IN THE GOVERNMENT'S ARGUMENT THAT THE LEGISLATIVE
HISTORY OF SEC. 3791(B) OF THE INTERNAL REVENUE CODE REQUIRES
RECONSIDERATION OF OUR DECISION AS TO THE EFFECT OF A CORRESPONDING
PROVISION OF THE REVENUE ACT OF 1928 IN HELVERING V. R.J. REYNOLDS
TOBACCO CO., 306 U.S. 110,116.  FN49  WE THINK THAT IN THE
CIRCUMSTANCES OF THIS CASE THE ADMINISTRATIVE CONSTRUCTION IN EFFECT AT
THE TIME OF THE RECEIPT OF THE STOCK DIVIDENDS HERE IN ISSUE MUST BE
GIVEN CONTROLLING EFFECT.    WE WOULD BE RELUCTANT, IN ANY EVENT, TO
FIND THAT CONGRESS INTENDED TO HOLD THE EFFECT OF SEC. 115(F)(1) IN
ABEYANCE UNTIL THE TREASURY SHOULD DECIDE THAT THE TIME WAS RIPE TO
CHALLENGE EISNER V. MACOMBER AND CARRY ITS CHALLENGE TO THIS COURT. 
SUCH AN INTENTION WOULD BE A SERIOUS DEPARTURE FROM THE USUAL POLICY OF
CONGRESS TO PROVIDE THE TAXPAYERS AND TAX-GATHERERS WITH A PRACTICAL
BASIS FOR THE TIMELY SETTLEMENT OF QUESTIONS OF TAXATION ARISING EACH
YEAR.  AT THE TIMES OF ENACTMENT, THE PROBLEM OF DELAY IN OBTAINING
DECISIONS OF THIS COURT WAS A MATTER OF GRAVE CONCERN TO THOSE
CONCERNED WITH THE ADMINISTRATION AND FURNISHING OF THE REVENUES. 
FN50 

THE GOVERNMENT'S ASSERTION THAT CONGRESS INTENDED TO HOLD THE MEANING
OF SEC. 115(F)(1) IN SUSPENSE UNTIL THE TERMINATION OF YEARS OF
LITIGATION IS IN CONFLICT WITH OUR RECENT DECISION IN PARKER V. MOTOR
BOAT SALES CO., 314 U.S. 244.  THERE WE WERE CALLED UPON TO CONSTRUE
SEC. 3(A) OF THE LONGSHOREMEN'S AND HARBOR WORKERS' ACT, 44 STAT. 1424,
WHICH MADE COMPENSATION PAYABLE ONLY IF "RECOVERY FOR THE DISABILITY OR
DEATH THROUGH WORKMEN'S COMPENSATION PROCEEDINGS MAY NOT VALIDLY BE
PROVIDED BY STATE LAW."  ITS STATEMENT IN SUCH TERMS WAS DUE TO THIS
COURT'S DECISION IN SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, A
MUCH CRITICIZED AND SOMEWHAT IMPAIRED, BUT NOT OVERRULED, DECISION
WHICH HELD FEDERAL POWER EXCLUSIVE AND STATE COMPENSATION LAWS
FORBIDDEN IN AN AREA OF "SHADOWY LIMITS."  THE COURT, SPEAKING THROUGH
MR. JUSTICE BLACK, SAID, "AN INTERPRETATION WHICH WOULD ENLARGE OR
CONTRACT THE EFFECT OF THE PROVISO IN ACCORDANCE WITH WHETHER THIS
COURT REJECTED OR REAFFIRMED THE CONSTITUTIONAL BASIS OF THE JENSEN AND
ITS COMPANION CASES CANNOT BE ACCEPTABLE.  THE RESULT OF SUCH AN
INTERPRETATION WOULD BE TO SUBJECT THE SCOPE OF PROTECTION THAT
CONGRESS WISHED TO PROVIDE, TO UNCERTAINTIES THAT CONGRESS WISHED TO
AVOID."  ID. AT 248,250. 

THE GOVERNMENT URGES THAT WE READ INTO THE CONGRESSIONAL ACT AN
INTENT TO TAX THESE DIVIDENDS BECAUSE OF CONSIDERATIONS THAT WE DO NOT
THINK ARE ENTITLED TO ANY WEIGHT.  IT ARGUES THAT THE FORM OF SEC.
115(F)(1) IS ATTRIBUTABLE TO "EMBARRASSMENT" WHICH WOULD HAVE BEEN
INCIDENT TO A "FRONTAL ATTACK" ON EISNER V. MACOMBER.  THERE IS AMPLE
GROUND TO KNOW THAT THE PROSPECT OF CONFLICT IN OPINION WITH THIS COURT
ON CONSTITUTIONAL QUESTIONS WAS NOT SUFFICIENT SO TO MUTE THE 74TH AND
75TH CONGRESSES.  FN51  THIS WAS AS IT SHOULD BE.  THERE IS NO REASON
TO DOUBT THAT THIS COURT MAY FALL INTO ERROR AS MAY OTHER BRANCHES OF
THE GOVERNMENT.  NOTHING IN THE HISTORY OR ATTITUDE OF THIS COURT
SHOULD GIVE RISE TO LEGISLATIVE EMBARRASSMENT IF IN THE PERFORMANCE OF
ITS DUTY A LEGISLATIVE BODY FEELS IMPELLED TO ENACT LAWS WHICH MAY
REQUIRE THE COURT TO REEXAMINE ITS PREVIOUS JUDGMENTS OR DOCTRINE. 
FN52  THE COURT DIFFERS, HOWEVER, FROM OTHER BRANCHES OF THE GOVERNMENT
IN ITS ABILITY TO EXTRICATE ITSELF FROM ERROR.  IT CAN RECONSIDER A
MATTER ONLY WHEN IT IS AGAIN PROPERLY BROUGHT BEFORE IT IN A CASE OR
CONTROVERSY; AND IF THE CASE REQUIRES, AS A TAX CASE DOES,  FN53  A
STATUTORY BASIS FOR A CASE, THE NEW CASE MUST HAVE SUFFICIENT STATUTORY
SUPPORT. 

AND, IF WE WERE TO ASSUME CONGRESSIONAL "EMBARRASSMENT" AND TAKE IT
INTO CONSIDERATION, WE WOULD ALSO BE REQUIRED TO WEIGH THE MANY OTHER
POLITICAL FACTORS WHICH MAY HAVE MOTIVATED THE CHOICE EMPLOYED IN THE
LANGUAGE OF SEC. 115(F)(1).  THOSE IN FAVOR OF THE BILL MAY HAVE
BELIEVED THAT THE ADOPTION OF EXISTING DECISIONS WAS THE MOST THAT WAS
POLITICALLY POSSIBLE; THOSE WHO OPPOSED IT MAY HAVE THOUGHT IT
DESIRABLE AS MATTER OF TAX POLICY TO DEFER TAXATION OF THE STOCK
DIVIDEND UNTIL REALIZATION.  FN54  NEEDLESS TO SAY, SPECULATION UPON
SUCH FACTORS HAS NO PLACE IN THE CONSTRUCTION OF ACTS OF CONGRESS. 

WE ARE ASKED TO MAKE A RETROACTIVE HOLDING THAT FOR SOME SEVEN YEARS
PAST A MULTITUDE OF TRANSACTIONS HAVE BEEN TAXABLE ALTHOUGH THERE WAS
NO SOURCE OF LAW FROM WHICH THE MOST CAUTIOUS TAXPAYER COULD HAVE
LEARNED OF THE LIABILITY.  IF HE CONSULTED THE DECISIONS OF THIS COURT,
HE LEARNED THAT NO SUCH TAX COULD BE IMPOSED; IF HE READ THE DELPHIC
LANGUAGE OF THE ACT IN CONNECTION WITH EXISTING DECISIONS, IT, TOO,
ASSURED HIM THERE WAS NO INTENT TO TAX; IF HE FOLLOWED THE
CONGRESSIONAL PROCEEDINGS AND DEBATES, HIS UNDERSTANDING OF
NONTAXABILITY WOULD BE CONFIRMED; IF HE ASKED THE TAX COLLECTOR
HIMSELF, HE WAS BOUND BY THE REGULATIONS OF THE TREASURY TO ADVISE THAT
NO SUCH LIABILITY EXISTED.  IT WOULD BE A PITY IF TAXPAYERS COULD NOT
RELY ON THIS CONCURRENT ASSURANCE FROM ALL THREE BRANCHES OF THE
GOVERNMENT.  BUT WE ARE ASKED TO BRUSH ALL THIS ASIDE AND SIMPLY TO
DECREE THAT THESE TRANSACTIONS ARE TAXABLE ANYWAY. 

NOR IS THE EFFECT ON TAXPAYERS THE ONLY CONSEQUENCE OF ACCEPTING SUCH
A PROPOSAL.  IT WOULD UNSETTLE TAX ADMINISTRATION AND SUBJECT THE
TREASURY ITSELF TO MANY DEMANDS IN WAYS THAT WE CANNOT ANTICIPATE AND
PROVIDE FOR.  MANY HAVE SOLD DIVIDEND STOCKS AND PAID THE POSTPONED TAX
AT HIGHER RATES THAN IF THEY HAD BEEN TAXED AS IS NOW PROPOSED.  MANY
HAVE PAID ON THE SALE OF THE ORIGINAL STOCK BECAUSE OF ALLOCATION OF
PART OF THE DIVIDEND TO REDUCE THE COST BASE THEREOF.  MANY
CORPORATIONS HAVE BEEN REFUSED DEDUCTIONS ON ACCOUNT OF THIS TYPE OF
STOCK DIVIDEND IN COMPUTING THEIR UNDISTRIBUTED CORPORATE EARNINGS TAX,
WHICH WOULD BECOME ENTITLED TO THEM.  OVERHANGING THE WHOLE EFFORT TO
ACCOMMODATE THESE PAST TRANSACTIONS TO A NEW RETROACTIVE LAW WOULD BE
THE STATUTE OF LIMITATIONS BARRING SOMETIMES THE GOVERNMENT AND
SOMETIMES THE TAXPAYER WITH CAPRICIOUS EFFECTS.  TO RIP OUT OF THE PAST
SEVEN YEARS OF TAX ADMINISTRATION A PRINCIPLE OF LAW ON WHICH BOTH
GOVERNMENT AND TAXPAYERS HAVE ACTED WOULD PRODUCE READJUSTMENTS AND
LITIGATION SO EXTENSIVE WE WOULD CONTEMPLATE THEM WITH ANXIETY.  WE
HAVE RECENTLY HELD AS TO ANOTHER QUESTIONED DECISION OF THIS COURT THAT
A LONG PERIOD OF ACCOMMODATIONS TO AN OLDER DECISION SOMETIMES REQUIRES
US TO ADHERE TO AN UNSATISFACTORY RULE TO AVOID UNFORTUNATE PRACTICAL
RESULTS FROM A CHANGE.  DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249.  WE
THINK THIS ANOTHER EXAMPLE OF THE SAME PRINCIPLE. 

THE GOVERNMENT ACKNOWLEDGES THE HARDSHIP WHICH WOULD BE INCIDENT TO
THE RULE WE ARE NOW ASKED TO DECLARE, AND PROMISES ITS ASSISTANCE IN
OBTAINING LEGISLATIVE CORRECTION.  IT SAYS THAT:  "WE ARE INFORMED BY
THE TREASURY THAT IT HAS NO INTENTION OF HARASSING TAXPAYERS WITH
RESPECT TO LIABILITY FOR PAST YEARS, AND THAT IF EISNER V. MACOMBER IS
OVERRULED IT INTENDS IMMEDIATELY TO RECOMMEND TO CONGRESS LEGISLATION
WHICH WOULD RELIEVE TAXPAYERS OF ANY UNFAIR RETROACTIVE BURDEN THAT
MIGHT RESULT FROM SUCH OVERRULING.  ..." 

OF COURSE, IF THERE WERE AN ADEQUATE BASIS IN STATUTE AND REGULATION
FOR THE TAX IN QUESTION, IT IS DIFFICULT TO UNDERSTAND WHY ITS
COLLECTION SHOULD BE REGARDED AS "HARASSING."  THIS ASSURANCE THAT IF
WE WILL BUT FIND THAT CONGRESS HAS INTENDED TO LAY THE TAX IT WILL BE
ASKED TO DECLARE THAT IT DOES NOT INTEND IT TO BE COLLECTED IS HARDLY
REASSURING THAT THE DECISION CONTENDED FOR WOULD BE WHAT CONGRESS
INTENDED.  SINCE IT IS ACKNOWLEDGED THAT LEGISLATION WOULD BE REQUIRED
TO ADJUST EQUITIES THAT ARE BEYOND JUDICIAL POWER AND TO PREVENT OUR
DECISION'S BEING USED TO HARASS TAXPAYERS, WE MAY WELL INQUIRE WHY THE
LEGISLATION SHOULD NOT PRECEDE THE JUDICIAL DECISION.  WHY SHOULD WE BE
ASKED TO IMPOSE BY INTERPRETATION A TAX WHICH THE TREASURY INTENDS TO
ASK CONGRESS TO LIFT? 

WE ARE UNABLE TO FIND THAT CONGRESS INTENDED TO TAX THE DIVIDENDS IN
QUESTION, AND WITHOUT CONGRESSIONAL AUTHORITY WE ARE POWERLESS TO DO
SO.  THAT BEING THE CASE, WE CANNOT REACH THE RECONSIDERATION OF EISNER
V. MACOMBER ON THE BASIS OF THE PRESENT LEGISLATION AND REGULATIONS. 

THE DECISION BELOW IS AFFIRMED. 

FN1  53 STAT. 1, 9, 47.  SEC. 22(A) PROVIDES THAT "'GROSS INCOME'
INCLUDES GAINS, PROFITS, AND INCOME DERIVED FROM  ...  DIVIDENDS  ..." 

SEC. 115(A) PROVIDES THAT "THE TERM 'DIVIDEND'  ...  MEANS ANY
DISTRIBUTION MADE BY A CORPORATION TO ITS SHAREHOLDERS, WHETHER IN
MONEY OR IN OTHER PROPERTY.  ..."  53 STAT. 1, 46. 

FN2  SEC. II B OF THIS ACT, 38 STAT. 114, 167, PROVIDED THAT "NET
INCOME  ...  SHALL INCLUDE GAINS, PROFITS, AND INCOME DERIVED FROM  ...
DIVIDENDS  ..." 

FN3  SEC. 2(A) OF THE REVENUE ACT OF 1916, 39 STAT. 756, 757. 

FN4  SELIGMAN, IMPLICATIONS AND EFFECTS OF THE STOCK DIVIDEND
DECISION, (1921) 21 COLUMBIA LAW REVIEW 313; WARREN, TAXABILITY OF
STOCK DIVIDENDS AS INCOME, (1920) 33 HARVARD LAW REVIEW 885; CF.
POWELL, CONSTITUTIONAL ASPECTS OF FEDERAL INCOME TAXATION, IN THE
FEDERAL INCOME TAX (COLUMBIA UNIVERSITY LECTURES, 1921) 51; BALLANTINE,
CORPORATE PERSONALTY IN INCOME TAXATION, (1921) 34 HARVARD LAW REVIEW
573; POWELL, INCOME FROM CORPORATE DIVIDENDS, (1922) 35 HARVARD LAW
REVIEW 363; CLARK, EISNER V. MACOMBER AND SOME INCOME TAX PROBLEMS,
(1920) 29 YALE LAW JOURNAL 735.  BUT CF. FAIRCHILD, THE STOCK DIVIDEND
DECISION, (1920) 5 NATIONAL TAX ASSOCIATION BULLETIN 208. 

FN5  T.D. 3052, 3059, 3 CUM. BULL.  38; O.D. 732, 3 CUM. BULL.  39;
O.D. 801, 4 CUM. BULL.  24; 42 STAT. 227, 228.  THE HOUSE REPORT STATED
THAT THIS ACT MODIFIED "THE DEFINITION OF DIVIDENDS IN EXISTING LAW BY
EXEMPTING STOCK DIVIDENDS FROM THE INCOME TAX, AS REQUIRED BY THE
DECISION OF THE SUPREME COURT IN EISNER V. MACOMBER."  H.R. REP. NO.
350, 67TH CONG., 1ST SESS., PP. 8-9.  THE SENATE REPORT WAS TO THE SAME
EFFECT.  S. REP. NO. 275, 67TH CONG., 1ST SESS., P. 9. 

FN6  SEE ARTICLE 1548, TREASURY REGULATIONS 62(PROMULGATED UNDER THE
REVENUE ACT OF 1921), 65(PROMULGATED UNDER THE REVENUE ACT OF 1924) AND
69(PROMULGATED UNDER THE REVENUE ACT OF 1926); ARTICLE 628, TREASURY
REGULATIONS 74(PROMULGATED UNDER THE REVENUE ACT OF 1928) AND
77(PROMULGATED UNDER THE REVENUE ACT OF 1932); ARTICLE 115-8 OF
TREASURY REGULATIONS 86(PROMULGATED UNDER THE REVENUE ACT OF 1934). 

FN7  ARTICLE 1548, TREASURY REGULATIONS 62; ARTICLES 1548, 1599,
TREASURY REGULATIONS 65 AND 69; ARTICLES 600, 628, TREASURY REGULATIONS
74. 

FN8  H. DOC. NO. 418, 74TH CONG., 2D SESS., PP. 2-3. 

FN9  H.R. COMMITTEE PRINT, MARCH 26, 1936, 74TH CONG., 2D SESS.,
HEARINGS ON THE REVENUE ACT, 1936, HOUSE WAYS AND MEANS COMMITTEE, 74TH
CONG., 2D SESS., PP. 5-8. 

FN10  SEE STATEMENT OF CONGRESSMAN VINSON, 83 CONG. REC. 2780:
"AFTER THE DECISION OF THE SUPREME COURT IN 1920, IT WAS NO LONGER
POSSIBLE FOR US TO IMPOSE A TAX UPON THE SHAREHOLDER WITH RESPECT TO
THE UNDIVIDED PROFITS OF A DOMESTIC CORPORATION.  WE WERE FORCED TO
ADOPT THE SYSTEM OF LEVYING A SPECIAL PENALTY TAX ON THE CORPORATION
ITSELF, WHICH HAS BEEN EXCEEDINGLY DIFFICULT TO ENFORCE IN THE COURTS
AND IS NOTHING LIKE AS EFFECTIVE AS IF WE COULD IGNORE THE CORPORATION
AND TAX THE SHAREHOLDER DIRECT UPON HIS UNDISTRIBUTED EARNINGS IN THE
PROFITS OF THE CORPORATION." 

SEE ALSO, HEARINGS ON THE REVENUE ACT, 1936, HOUSE WAYS AND MEANS
COMMITTEE, 74TH CONG., 2D SESS., PP. 193, 745; CF. HEARINGS ON THE
REVENUE ACT, 1936, SENATE FINANCE COMMITTEE, 74TH CONG., 2D SESS., PP.
210-211, 256-257; H.R. REP. NO. 1860, 75TH CONG., 3D SESS., PP. 2-3;
REPORT OF SUBCOMMITTEE OF THE HOUSE COMMITTEE ON WAYS AND MEANS,
PROPOSED REVISION OF THE REVENUE LAWS, 75TH CONG., 3D SESS., JANUARY
14, 1938, PP. 2-3.  FOR EARLIER PROPOSALS, SEE STATEMENT OF OLIPHANT,
GENERAL COUNSEL OF THE TREASURY, HEARINGS ON THE REVENUE ACT, 1936,
HOUSE WAYS AND MEANS COMMITTEE, 74TH CONG., 2D SESS., P. 658; ID. AT
820; MARTIN, TAXATION OF UNDISTRIBUTED CORPORATE PROFITS, (1936) 35
MICHIGAN LAW REVIEW 44, 45 ET SEQ. 

FN11  THE REVENUE ACT OF 1864, 13 STAT. 218, 282, PROVIDED THAT
"GAINS AND PROFITS OF ALL COMPANIES, WHETHER INCORPORATED OR
PARTNERSHIP,  ...  SHALL BE INCLUDED IN ESTIMATING THE ANNUAL GAINS,
PROFITS, OR INCOME OF ANY PERSON ENTITLED TO THE SAME, WHETHER DIVIDED
OR OTHERWISE."  COMPARE THE COLLECTOR V. HUBBARD, 12 WALL.  1, 17, WITH
POLLOCK V. FARMERS' LOAN & TRUST CO., 158 U.S. 601, AND EISNER V.
MACOMBER, 252 U.S. 189, 218, 230-232.  SEE ALSO, 13 STAT. 480; 14 STAT.
5, 478; 16 STAT. 258. 

FN12  CONGRESSMAN HILL OBJECTED TO A PROPOSAL THAT STOCKHOLDERS BE
TAXED LIKE PARTNERS, ON THE GROUND THAT EISNER V. MACOMBER STOOD IN THE
WAY.  HEARINGS ON THE REVENUE ACT, 1936, HOUSE WAYS AND MEANS
COMMITTEE, 74TH CONG., 2D SESS., PP. 96, 97, 98.  CONGRESSMAN LEWIS
STATED:  "I DO NOT KNOW THAT IT IS FULLY UNDERSTOOD BY THE PUBLIC THAT
THIS ROUNDABOUT DEVICE OF COMPELLING THE DISTRIBUTION OF THE REAL
INCOME OF THE CORPORATION TO ITS SHAREHOLDERS, SO THAT THE SHAREHOLDERS
MAY BE CALLED UPON TO PAY TAXES UPON THEIR INCOME, IS DUE TO A DECISION
OF A DIVIDED COURT.  SOME YEARS AGO THE SUPREME COURT IN A SHARP
DECISION DETERMINED THAT WE COULD NOT DO IN THE UNITED STATES WITH
REGARD TO EARNED DIVIDENDS THAT WERE NOT DISTRIBUTED WHAT THEY DO IN
OTHER COUNTRIES, ESPECIALLY IN ENGLAND, REQUIRE THE SHAREHOLDER TO PAY
HIS TAX ON HIS INCOME JUST THE SAME WHETHER HIS COMPANY HAD REFUSED TO
DISTRIBUTE IT OR NOT. 

"NOW, IF THAT DECISION OF THE COURT SHOULD BE REVERSED, WHAT WE ARE
DOING HERE, OR ATTEMPTING TO DO IN ORDER TO REACH THE TAXPAYER HERE,
THE METHOD OF OUR ATTEMPT, WOULD NOT BE NECESSARY.  NOT OURS THE FAULT
OF ALL THIS CLUMSINESS AND INDIRECTION OF APPROACH TO A NECESSARY
PUBLIC OBJECT."  ID. AT 193. 

LATER HE SAID:  "OF COURSE, WE CANNOT REACH THE NET EARNINGS OF THE
CORPORATIONS AS EARNINGS OF THE INDIVIDUAL STOCKHOLDERS UNTIL THE
EARNINGS ARE DISTRIBUTED AS DIVIDENDS."  ID. AT 321.  SEE ALSO, ID. AT
745, 83 CONG. REC. 3125.    IN THE SENATE DEBATES, SENATOR BLACK STATED
IN RESPONSE TO A QUESTION WHETHER IT WAS "LEGALLY POSSIBLE TO SAY TO
EACH CORPORATION, 'MAKE A REPORT OF THE PROPORTIONATE EARNINGS OF EACH
STOCKHOLDER,' AS WE WOULD TO A PARTNERSHIP, AND THEN LET THE
STOCKHOLDER MAKE HIS RETURN?"  THAT "UNFORTUNATELY THAT WAS DONE ABOUT
60 YEARS AGO, AND WHILE IT IS MY RECOLLECTION THAT THE SUPREME COURT
ITSELF SUSTAINED THE ACT, IT LATER, BY ANOTHER DIVIDED OPINION, CHANGED
ITS MIND AND STRUCK DOWN THE ACT AS BEING IN CONTRAVENTION OF THE
CONSTITUTION.  SO THAT IT IS IMPOSSIBLE TO TAX THE UNDISTRIBUTED
PROFITS WHICH REMAIN IN THE CORPORATE TREASURY AS A PART OF THE
INDIVIDUAL INCOMES OF THE STOCKHOLDERS."  80 CONG. REC. 8813. 

COMPARE COLLOQUY BETWEEN CONGRESSMAN LEWIS AND ALVORD, INFRA, NOTE
37; HELVERING V. NATIONAL GROCERY CO., 304 U.S. 282; HEINER V. MELLON,
304 U.S. 271; HELVERING V. GERHARDT, 304 U.S. 405, 425.  BUT SEE
POWELL, THE STOCK-DIVIDEND DECISION AND THE CORPORATE NONENTITY, (1920)
5 NATIONAL TAX ASSOCIATION BULLETIN 201; CLARK, SUPRA, NOTE 4, AT 742;
TRAYNOR, TAX DECISIONS OF THE SUPREME COURT, 1937 TERM, (1938) 33
ILLINOIS LAW REVIEW 371, 388. 

FN13  SEC. 27(F) OF H.R. 12395, 74TH CONG., 2D SESS., WHICH BECAME
SEC. 27(E) OF THE REVENUE ACT OF 1936, 49 STAT. 1648, 1665. 

FN14  IN QUESTIONING KENT, ACTING CHIEF COUNSEL OF THE BUREAU OF
INTERNAL REVENUE, AT THE HOUSE HEARINGS, CONGRESSMAN VINSON OF KENTUCKY
SAID:  "IN REFERENCE TO THE RETENTION OF THE CASH IN THE BUSINESS BY
THE USE OF TAXABLE STOCK DIVIDENDS, I WOULD LIKE YOU TO DEVELOP THAT,
BECAUSE I THINK IT IS VERY INTERESTING.  I THINK THAT IT WILL ALLAY A
MAJOR PORTION OF THE FEAR THAT SOME FOLKS HAVE THAT IN THIS FAVORED
TREAMENT OF CORPORATIONS DECLARING LARGE PERCENTAGES OF DIVIDENDS THE
CAPITAL STRUCTURE OF A CORPORATION WOULD BE IN DANGER, OR THAT THEREBY
IT WOULD NOT HAVE THE MONEY FOR THE RAINY DAY."  KENT REPLIED:  "THERE
HAVE BEEN SEVERAL DECISIONS RECENTLY - I MAY SAY THAT ONE OF THEM HAS
NOW REACHED THE SUPREME COURT OF THE UNITED STATES - THAT HAVE TAKEN
THE POSITION THAT THE CONSTITUTIONAL IMMUNITY OF THE TRUE STOCK
DIVIDEND RECOGNIZED OR DECLARED IN EISNER V. MACOMBER DOES NOT APPLY TO
ALL TYPES AND VARIETIES OF SO-CALLED STOCK DIVIDENDS; FOR INSTANCE,
THAT IF THE DIRECTORS OF A CORPORATION INSTEAD OF PAYING A LARGE CASH
DIVIDEND TO THE PREFERRED SHAREHOLDERS OF THE CORPORATION SEE FIT TO
GIVE THEM COMMON STOCK INSTEAD, THAT DIVIDEND OF COMMON STOCK IS
TAXABLE SO FAR AS THE CONSTITUTION IS CONCERNED. 

"I MAY SAY THAT IN A CASE WHICH IS PENDING BEFORE THE SUPREME COURT
THERE IS A QUESTION ALSO OF THE STATUTORY INTERPRETATION, BUT ASSUMING,
AS I BELIEVE IS A PROPER LEGAL VIEW OF THE CASE, THAT SO FAR AS THE
CONSTITUTION IS CONCERNED, THERE ARE TYPES OF STOCK DIVIDENDS THAT MAY
BE TAXED UNDER THE CONSTITUTION, THAT WOULD PROVIDE A LOOPHOLE.  THEN,
ALSO, OF COURSE, THERE IS THE SO-CALLED OPTIONAL STOCK DIVIDEND IN
WHICH THE STOCKHOLDER IS GIVEN THE OPTION OF TAKING CASH OR TAKING
STOCK.  FOR ANY SHAREHOLDER WHO WISHES TO MAINTAIN HIS PROPORTIONATE
EQUITY IN THE ENTERPRISE THERE IS A VERY POWERFUL INCENTIVE TO TAKE
STOCK."  CONGRESSMAN VINSON SAID:  "SUCH OPTION IS PROPERTY THAT HAS A
VALUE AND, IN YOUR OPINION, TAKES THAT ENTIRELY OUT OF THE STOCK
DIVIDEND WHICH WAS INVOLVED IN THE CASE OF EISNER V. MACOMBER; IS THAT
RIGHT?"  MR. KENT:  "THAT IS CORRECT."  HEARINGS ON THE REVENUE ACT,
1936, HOUSE WAYS AND MEANS COMMITTEE, 74TH CONG., 2D SESS., PP. 592
593. 

SEE ALSO, SIMILAR STATEMENTS AT THE SENATE HEARINGS BY HAAS, DIRECTOR
OF RESEARCH AND STATISTICS FOR THE TREASURY DEPARTMENT; AND OLIPHANT,
GENERAL COUNSEL OF THE TREASURY.  HEARINGS ON THE REVENUE ACT, 1936,
SENATE FINANCE COMMITTEE, 74TH CONG., 2D SESS., PP. 38, 909, 917-918. 

FN15  THE GOVERNMENT CALLS ATTENTION TO A MEMORANDUM SUBMITTED TO THE
SENATE FINANCE COMMITTEE BY GRAHAM, LECTURER IN FINANCE AT COLUMBIA
UNIVERSITY, WHICH STATED THAT:  "THE MOST SUITABLE METHOD OF
CAPITALIZING REINVESTED EARNINGS AND MAKING THEM TAXABLE TO THE
STOCKHOLDERS, WOULD BE THROUGH THE DECLARATION OF TAXABLE DIVIDENDS IN
COMMON STOCK.  WHILE THE DECISION IN EISNER V. MACOMBER STANDS IN THE
WAY OF THIS IDEAL ARRANGEMENT, I BELIEVE THAT IN VIEW OF THE DIFFERNET
PHILOSOPHY OF TAXATION EMBODIED IN THE PENDING BILL, THIS DECISION
MIGHT BE OVERCOME BY TREATING SUCH STOCK DIVIDENDS AS AN ADMINISTRATIVE
VEHICLE FOR ALLOCATING EARNINGS TO THE VARIOUS TAXPAYERS."  HEARINGS ON
THE REVENUE ACT, 1936, SENATE FINANCE COMMITTEE, 74TH CONG., 2D SESS.,
P. 696.  GRAHAM DID NOT TESTIFY AT THE HEARINGS, AND IT IS NOT CLEAR
FROM THIS STATEMENT THAT HE HAD REFERENCE TO A DIVIDEND OF COMMON STOCK
ON COMMON STOCK.  COMPARE HIS LATER STATEMENT IN THE UNDISTRIBUTED
PROFITS TAX AND THE INVESTOR, (1936) 46 YALE LAW JOURNAL 1, 6, NOTE 17:
"PAYMENTS ON COMMON IN ADDITIONAL COMMON ARE, OF COURSE, NON
TAXABLE."  COMPARE HEARINGS ON THE REVENUE ACT, 1936, HOUSE WAYS AND
MEANS COMMITTEE, 74TH CONG., 2D SESS., PP. 93 ET SEQ. 

FN16  H.R. 12395, 74TH CONG., 2D SESS. 

FN17  H. REP. NO. 2475, 74TH CONG., 2D SESS., P. 10. 

FN18  80 CONG. REC. 6214-6215. 

FN19  SEE NOTE 14, SUPRA. 

FN20  MAGILL, REALIZATION OF INCOME THROUGH CORPORATE DISTRIBUTIONS,
(1936) 36 COLUMBIA LAW REVIEW 519. 

FN21  MR. VINSON.  THE CASE OF EISNER AGAINST MACOMBER, AS I RECALL,
INVOLVED A CORPORATION WITH $1,000,000 COMMON STOCK.  THERE WAS A
DECLARATION OF A $500,000 STOCK DIVIDEND TO THE COMMON-SHARE HOLDERS. 
THE COURT HELD, AND I THINK CORRECTLY, THAT WHERE EACH SHAREHOLDER GOT
HIS PROPORTIONATE PART OF THE NEW STOCK THERE WAS NO CHANGE IN HIS
OWNERSHIP IN THE CORPORATION.  THAT, IN A CORPORATION WITH A
MILLIONDOLLAR CAPITAL, THE DISTRIBUTION OF ANOTHER HALF MILLION TO THE
HOLDERS OF THE COMMON STOCK MADE NO CHANGE IN OWNERSHIP.  THE
SHAREHOLDER WHO OWNED A SHARE OF STOCK WOULD OWN ONE AND A HALF SHARES
IN THE INCREASED STRUCTURE, AND THEREFORE THERE WAS NO CHANGE IN THE
OWNERSHIP SO FAR AS HE AND THE CORPORATION WERE CONCERNED. 

IT HAS BEEN EVIDENCED THROUGHOUT THE YEARS THAT THERE ARE INNUMERABLE
STOCK DIVIDENDS THAT ARE TAXABLE.  THE ISSUANCE OF STOCK, EITHER COMMON
OR PREFERRED, OR BONDS, IN PAYMENT OF DIVIDENDS MAY CHANGE THE
PROPORTION OF OWNERSHIP AMONG THE SHAREHOLDERS.  FOR INSTANCE, LET US
TAKE THIS ILLUSTRATION:  YOU ISSUE PREFERRED STOCKHOLDERS COMMON STOCK
TO SATISFY DIVIDENDS DECLARED TO PREFERRED STOCKHOLDERS.  YOU HAVE
INTRODUCED ADDITIONAL COMMON STOCK.  IT IS IN THE HANDS OF PERSONS
OTHER THAN THE PRESENT COMMON-STOCK HOLDERS; CONSEQUENTLY THERE IS A
CHANGE IN THE PROPORTION OF OWNERSHIP IN THE COMMON-STOCK HOLDERS. 

THE SUPREME COURT IN ONE CASE LAID DOWN THE RULE THAT THE YARDSTICK
IN RESPECT OF THE TAXABILITY OF STOCK DIVIDENDS WAS THE CHARACTER OR
KIND OF STOCK AND THE CHANGE IN PROPORTION OF OWNERSHIP.  I SUBMITTED
IN THE RECORD YESTERDAY A STATEMENT PREPARED FOR ME BY MR. KENT, ACTING
GENERAL COUNSEL OF THE BUREAU OF INTERNAL REVENUE, SETTING FORTH
DECISIONS OF THE SUPREME COURT WHERE STOCK DIVIDENDS WERE HELD TO BE
NONTAXABLE; AND OTHER CASES WHERE THE SUPREME COURT AND THE BOARD OF
TAX APPEALS HELD THAT STOCK DIVIDENDS WERE TAXABLE.  IN THIS CONNECTION
I POINTED OUT THAT IN THE APRIL VOLUME OF THE COLUMBIA UNIVERSITY LAW
REVIEW A GENTLEMAN, IN WHOM WE HAVE GREAT FAITH AND CONFIDENCE, THE
HONORABLE ROSWELL MAGILL, WROTE A VERY COMPREHENSIVE AND ILLUMINATING
ARTICLE ON THE TAXABILITY OF STOCK DIVIDENDS. 

MR. TREADWAY.  ... 

AS I RECALL IT, IN THE PRESENT LAW THERE WAS JUST ONE LINE, 115,
WHICH READ "STOCK DIVIDENDS SHALL NOT BE SUBJECT TO TAX."  THAT IS
CORRECT? 

MR. VINSON.  THAT IS RIGHT. 

MR. TREADWAY.  IT HAS BEEN STRICKEN OUT IN THIS BILL, AND YOU ARE
SUBSTITUTING THEREFOR SECTION (F), ON PAGE 107, OF WHICH THE GENTLEMAN
HAS GIVEN A HISTORY. 

     .         .         .         .         . 

MR. VINSON.  THE SECTION TO WHICH I REFER STATES THAT THE ONLY STOCK
DIVIDENDS WE SEEK TO TAX ARE THOSE WHICH ARE TAXABLE INCOME WITHIN THE
SIXTEENTH AMENDMENT. 

MR. TREADWAY.  THE LANGUAGE STRICKEN OUT, I MAY SAY, READS AS
FOLLOWS: 

"(B)  STOCK DIVIDENDS:  A STOCK DIVIDEND SHALL NOT BE SUBJECT TO
TAX." 

THAT IS THE EXISTING LAW AND HAS BEEN THE LAW MOST OF THE TIME SINCE
THE EISNER AGAINST MACOMBER DECISION.  IN THE NEXT TAX BILL AFTER THAT
DECISION THAT LANGUAGE WAS INCLUDED. 

I UNDERSTAND THE GENTLEMAN'S EXPLANATION TO BE THAT THE LANGUAGE OF
THE ACT WAS TOO BROAD.  I DO NOT MEAN TOO BROAD IN THE SENSE IT IS NOT
LEGAL, BUT IT GOES FURTHER THAN THE EISNER AGAINST MACOMBER DECISION. 

MR. VINSON.  THAT IS CORRECT. 

MR. TREADWAY.  THE LANGUAGE NOW SUBSTITUTED FOR THE STRICKEN LANGUAGE
DESCRIBES NEW STOCK DIVIDENDS THAT CAN BE TAXED OR WHAT PORTION OF
STOCK DIVIDENDS UNDER THE SIXTEENTH AMENDMENT CAN IN THE FUTURE BE
TAXED.  IS THAT THE RIGHT CONCEPTION OF THE INTENTION? 

MR. VINSON.  WELL, WE TAKE THE BROAD POSITION THAT STOCK DIVIDENDS
THAT ARE TAXABLE INCOME WITHIN THE SIXTEENTH AMENDMENT ARE SUBJECT TO
TAXATION, AND IF THEY ARE NOT SUCH STOCK DIVIDENDS AND NOT ANY TAXABLE
INCOME UNDER THE SIXTEENTH AMENDMENT, THEY ARE NOT SUBJECT TO TAXES. 
80 CONG. REC. 6309-6310. 

FN22  S. REP. NO. 2156, 74TH CONG., 2D SESS., PP. 18-19. 

FN23  S. REP. NO. 2156, 74TH CONG., 2D SESS., PT. 2, P. 5, REPRINTED
TOGETHER WITH THE OPINION OF THIS COURT IN THE KOSHLAND CASE, 80 CONG.
REC. 8526-8529.  THEIR REPORT STATED THAT:  "UNDER THE OPINION OF THE
SUPREME COURT IN KOSHLAND V. HELVERING, DECIDED MAY 18, 1936, THE
SUPREME COURT DECIDED THAT STOCK DIVIDENDS REPRESENTED TAXABLE INCOME
WHERE THEY GIVE 'THE STOCKHOLDER AN INTEREST DIFFERENT FROM THAT WHICH
HIS FORMER STOCKHOLDINGS REPRESENTED.'  IT IS, THEREFORE, BEYOND ANY
QUESTION OF DOUBT, THAT UNDER OUR PROPOSAL, CORPORATIONS WOULD BE ABLE
TO RETAIN ALL MONEY PROFITS NEEDED FOR CARRYING ON THEIR BUSINESS
WITHOUT ANY ADDITIONAL CORPORATE TAX." 

FN24  80 CONG. REC. 8811. 

FN25  80 CONG. REC. 8811. 

FN26  SEE FOOTNOTE 12, SUPRA. 

FN27  80 CONG. REC. 8813. 

FN28  80 CONG. REC. 9048.  SEE ALSO, ID. AT 9045, 9047. 

FN29  80 CONG. REC. 9052. 

FN30  SEC. 102, 49 STAT. 1648, 1676, LAID A GRADUATED ADDITIONAL TAX
UPON THE INCOME OF CORPORATIONS OTHER THAN PERSONAL HOLDING COMPANIES
AS DEFINED IN SEC. 351, FORMED OR AVAILED OF FOR THE PURPOSE OF
PREVENTING THE IMPOSITION OF THE SURTAX UPON THEIR SHAREHOLDERS OR THE
SHAREHOLDERS OF ANY OTHER CORPORATION, THROUGH THE MEDIUM OF PERMITTING
EARNINGS OR PROFITS TO ACCUMULATE INSTEAD OF BEING DIVIDED OR
DISTRIBUTED. 

SEC. 351, 49 STAT. 1648, 1732, LAID A GRADUATED SURTAX UPON INCOME OF
PERSONAL HOLDING COMPANIES. 

UNDER THE REVENUE ACTS OF 1913, 1916 AND 1918, IF A CORPORATION WAS
AVAILED OF FOR THE PURPOSE OF EVADING TAXATION BY ACCUMULATION OF GAINS
AND PROFITS THE SHAREHOLDERS WERE TAXED ON THEIR PRO RATA SHARES OF
INCOME, WHETHER OR NOT DISTRIBUTED.  38 STAT. 166; 39 STAT. 758; 40
STAT. 1072. 

SEC. 220 OF THE REVENUE ACT OF 1921 EMPLOYED INSTEAD A TAX AGAINST
THE CORPORATION.  42 STAT. 227, 247.  H.R. REP. NO. 350, 67TH CONG.,
1ST SESS., PP. 12-13, STATED IN EXPLANATION OF THE CHANGE THAT:
"SECTION 220 OF THE EXISTING LAW PROVIDES THAT IF ANY CORPORATION IS
FORMED OR AVAILED OF FOR THE PURPOSE OF EVADING THE SURTAX UPON ITS
STOCKHOLDERS THROUGH THE MEDIUM OF PERMITTING ITS GAINS AND PROFITS TO
ACCUMULATE INSTEAD OF BEING DIVIDED, THE STOCKHOLDERS SHALL BE TAXED IN
THE SAME MANNER AS PARTNERS.  BY REASON OF THE RECENT DECISION OF THE
SUPREME COURT IN THE STOCK DIVIDEND CASE (EISNER V. MACOMBER, 252 U.S.
189), CONSIDERABLE DOUBT EXISTS AS TO THE CONSTITUTIONALITY OF THE
EXISTING LAW."  SEE ALSO, S. REP. NO. 275, 67TH CONG., 1ST SESS., P.
16. 

SEE ALSO, SEC. 220 OF THE REVENUE ACTS OF 1924 AND 1926, 43 STAT.
253, 277; 44 STAT. 9, 34; SEC. 104 OF THE REVENUE ACTS OF 1928 AND
1932, 45 STAT. 791, 814; 47 STAT. 169, 195; AND SECS. 102 AND 351 OF
THE REVENUE ACT OF 1934, 48 STAT. 680, 702, 751. 

THE 1926 AND SUBSEQUENT ACTS PERMITTED THE AVOIDANCE OF TAX ON THE
CORPORATION BY INCLUSION OF UNDISTRIBUTED CORPORATE INCOME IN THE GROSS
INCOME OF ITS SHAREHOLDERS. 

FN31  THUS, SENATOR BLACK SAID ON THE FLOOR OF THE SENATE THAT "IT IS
A VAIN AND AN ILLUSORY HOPE TO ANTICIPATE THAT THE GOVERNMENT OF THE
UNITED STATES WILL EVER BE ABLE TO PREVENT TAX AVOIDANCE ON THE PART OF
CORPORATE OFFICIALS BY THE SIMPLE EXPEDIENT OF CHARGING AND PROVING
AGAINST THEM THAT THEY HAVE WITHHELD A DISTRIBUTION OF PROFITS TO AVOID
TAXES."  80 CONG. REC. 8811.  SEE ALSO STATEMENT BY OLIPHANT, GENERAL
COUNSEL OF THE TREASURY, HEARINGS ON THE REVENUE ACT, 1936, HOUSE WAYS
AND MEANS COMMITTEE, 74TH CONG., 2D SESS., PP. 658-659; FOOTNOTES 10
AND 12, SUPRA; CF. REPORT OF SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
WAYS AND MEANS, TAX REVISION, 1938, JANUARY 14, 1938, 75TH CONG., 3D
SESS., PP. 20 ET SEQ.; H.R. REP. NO. 1860, 75TH CONG., 3D SESS., P. 53;
65 CONG. REC. 8014 ET SEQ.; MARTIN, TAXATION OF UNDISTRIBUTED CORPORATE
PROFITS, (1936) 35 MICHIGAN LAW REVIEW 44, 50, 62. 

FN32  I.T. 3037, CUM. BULL.  1937-1, P. 90. 

FN33  SEE GOVERNMENT'S BRIEF IN HELVERING V. GOWRAN, 302 U.S. 238, P.
20(OCTOBER, 1937). 

FN34  THE GREYHOUND CORPORATION - ISSUANCE OF PREFERENCE STOCK, 1
M.C.C. 357; MISSION OIL CO., 1 S.E.C. 940; CF. INTERNATIONAL PAPER &
POWER CO., 2 S.E.C. 274; SOUTHWESTERN DEVELOPMENT CO., 2 S.E.C. 930. 

FN35  MCLAREN, MANAGEMENT OF CAPITAL DISTRIBUTIONS UNDER THE REVENUE
ACT OF 1936, (1936) 62 JOURNAL OF ACCOUNTANCY, 334, 354-355; SCHULMAN,
UNDISTRIBUTED PROFITS TAX AFTER THE KOSHLAND CASE, (1936) 14 TAX
MAGAZINE 703, 705; ANDERSON, THE TAXABILITY OF STOCK DIVIDENDS, (1937)
15 TAX MAGAZINE 74, 77; GRAHAM, THE UNDISTRIBUTED PROFITS TAX AND THE
INVESTOR, (1936) 46 YALE LAW JOURNAL 1, 6-7; NOTE (1936) 50 HARVARD LAW
REVIEW 332, 334; CF. HENDRICKS, THE UNDISTRIBUTED PROFITS TAX, (1936)
46 YALE LAW JOURNAL 19, 38-41.    IN AN ARTICLE PUBLISHED IN APRIL OF
1940, SURREY, ASSISTANT LEGISLATIVE COUNSEL OF THE TREASURY DEPARTMENT,
LATER ADVANCED THE CONTRARY VIEW.  THE SUPREME COURT AND THE FEDERAL
INCOME TAX, 35 ILLINOIS LAW REVIEW 779, 794. 

FN36  SEC. 115(F)(1), H.R. 9682, 75TH CONG., 3D SESS.; 52 STAT. 447,
497. 

FN37  SEC. 102, 52 STAT. 447, 483; SEC. 401, 52 STAT. 447,
557(SIMILAR TO SEC. 351 OF THE REVENUE ACT OF 1936).  THE REVENUE ACT
OF 1938, AS PROPOSED AND ENACTED, CONTAINED A "CONSENT DIVIDENDS"
PROVISION ALLOWING SHAREHOLDERS TO PERMIT THE CORPORATION TO AVOID THE
UNDISTRIBUTED-PROFITS TAX BY CONSENTING TO INCLUDE IN THEIR RETURNS
AMOUNTS AS THOUGH ACTUAL DISTRIBUTIONS HAD BEEN MADE IN CASH.  SEC. 28,
52 STAT. 447, 470-472.  SEE REPORT OF SUBCOMMITTEE OF HOUSE COMMITTEE
ON WAYS AND MEANS, PROPOSED REVISION OF THE REVENUE LAWS, 75TH CONG.,
3D SESS., JAN. 14, 1938, PP. 18-20; H.R. REP. NO. 1860, 75TH CONG., 3D
SESS., PP. 24 ET SEQ. 

THE FOLLOWING COLLOQUY BETWEEN ALVORD, REPRESENTING THE COMMITTEE OF
FEDERAL FINANCE, CHAMBER OF COMMERCE OF THE UNITED STATES, AND
CONGRESSMAN LEWIS, TOOK PLACE AT THE HOUSE HEARINGS.  HEARINGS ON THE
REVENUE ACT, 1938, HOUSE WAYS AND MEANS COMMITTEE, PP. 505-506: 

MR. LEWIS.  DO YOU REALIZE THAT THESE EXTRA TAXES ON THE CORPORATIONS
AS SUCH, INCLUDING THE PERSONAL HOLDING COMPANY AND THE OTHERS, ARE DUE
TO THE DECISION IN EISNER V. MACOMBER? 

MR. ALVORD.  YES. 

MR. LEWIS.  I AM JUST ASKING THAT BY WAY OF PREFACE. 

MR. ALVORD.  YES, SIR.  I DISCUSSED THAT QUITE AT LENGTH, I THINK,
BACK IN 1936. 

MR. LEWIS.  UNHAPPILY, IT IS NOT BEING DISCUSSED AT THE PRESENT TIME
IN THE PRESS AS FULLY AS IT SHOULD BE IN ORDER THAT THE PROCEDURE OF
THE COMMITTEE BE FAIRLY UNDERSTOOD.  YOU WILL RECALL, OF COURSE, THAT
UNDER THAT DECISION, A 5-TO-4 DECISION, IT WAS HELD THAT,
NOTWITHSTANDING THE GENERAL TERMS OF THE INCOME-TAX AMENDMENT, THAT TAX
ON PAID-UP STOCK DIVIDENDS WAS UNCONSTITUTIONAL. 

NOW, BEFORE I GO ANY FURTHER, I WANT TO SAY THAT CERTAINLY SO FAR AS
I AM CONCERNED THERE WOULD BE NO SUPPORT FOR ANY OF THESE EXTRA TAXES
IF THAT DECISION WERE REVERSED AND THE EARNED INCOME OF SHAREHOLDERS IN
CORPORATIONS WERE LEFT SUBJECT TO TAXATION, JUST AS THE EARNED INCOME
OF PARTNERS IS SUBJECT TO TAX, ALTHOUGH THAT INCOME MAY BE PLOWED INTO
THE PARTNERSHIP BUSINESS. 

MR. ALVORD.  I THINK IF YOU WILL READ MY TESTIMONY BACK IN 1936 YOU
WILL FIND THAT I AGREE WITH YOU ABSOLUTELY IN PRINCIPLE.  BUT BEAR IN
MIND THAT WE HAVE SOME VERY PRACTICAL PROBLEMS IN ADDITION TO
CONSIDER. 

MR. LEWIS.  VERY WELL. 

MR. ALVORD.  BECAUSE I DO NOT THINK YOU CAN AFFORD TO EXEMPT THE
CORPORATION ENTIRELY FOR EXAMPLE, WHICH THE FOLLOWING OF THAT DECISION
WOULD REQUIRE. 

MR. LEWIS.  NOW, OF COURSE, THE GENERAL PUBLIC WANTS TO BE FAIR IN
THIS MATTER, AND EVEN YOUR CLIENTS REALIZE THAT THE GOVERNMENT OF THE
UNITED STATES MUST IN SOME WAY SECURE REVENUES.  I AM A LITTLE CURIOUS
TO KNOW WHY VOICES AS INFLUENTIAL AS YOURS, OR ESPECIALLY AS THE VOICE
OF YOUR CLIENTS - I READ ALL THEIR REPORTS, PROFIT BY THEM, I AM GLAD
TO SAY - HAVE NEVER BEEN RAISED ASKING A REVERSAL OF THAT DECISION SO
THAT WE CAN GO BACK AND TAX SHAREHOLDERS NORMALLY AS WE DO OTHER
INDIVIDUALS AND PARTNERS. 

ALL THIS TROUBLE WE ARE DISCUSSING TODAY WILL DISAPPEAR IN A MOMENT
IF THAT RESULT IS OBTAINED. 

MR. ALVORD.  I THINK, MR. LEWIS, I CAN EXPLAIN TO YOU FULLY WHY THAT
HAS NOT BEEN DONE UP TO THE PRESENT TIME.  IF I RECALL CORRECTLY,
EISNER V. MACOMBER WAS DECIDED IN THE LATE SPRING OF 1921, JUST WHILE
THE 1921 ACT WAS UNDER CONSIDERATION, JUST BEFORE IT PASSED; WHEREUPON
A SPECIFIC PROVISION WAS WRITTEN INTO THE STATUTE, SAYING THAT STOCK
DIVIDENDS ESCAPE TAXES; AND THAT PROVISION HAS STAYED IN THE STATUTE. 

MR. LEWIS.  YES. 

MR. ALVORD.  IT HAS BEEN WHITTLED DOWN, IT IS TRUE. 

MR. LEWIS.  YES.  BUT THE DECISION ALSO CARRIES A PROVISION AGAINST
TAXING EVEN UNDISTRIBUTED INCOME TO THE SHAREHOLDER. 

MR. ALVORD.  NO; I DO NOT THINK THAT IS TRUE, MR. LEWIS. 

MR. LEWIS.  WELL, THAT IS THE VIEW OF OTHERS, AND THAT IS THE VIEW OF
THE COMMITTEE.  IF YOU WILL PROVIDE ME A WAY BY WHICH THE SHAREHOLDER
IN THE CORPORATION CAN BE REQUIRED TO PAY HIS TAXES LIKE INDIVIDUALS
AND PARTNERS ON EARNED INCOME, I WILL PROMISE YOU MY SUPPORT IN AN
EFFORT TO REPEAL ALL THESE EXTRA TAX PROVISIONS. 

MR. ALVORD.  WELL, I THINK YOUR POSITION IS ALMOST UNASSAILABLE IN
THAT RESPECT, MR. LEWIS. 

MR. LEWIS.  VERY WELL. 

MR. ALVORD.  IT IS A POSITION THAT MANY OF US HAVE TAKEN FOR A LONG
TIME. 

MR. LEWIS.  BUT WILL YOU HEAR THIS QUESTION IN THE SPIRIT IT IS PUT:
DO YOU NOT THINK THE GOVERNMENT UNDER SUCH CIRCUMSTANCES IS UNDER A
DUTY TO TRY IN SOME WAY TO RECOUP ITSELF FOR THESE LOST TAXES IN THE
SHAREHOLDER GROUP WHO WOULD BE SUBJECT TO THEM?  IF WE ARE, ISN'T IT
NATURAL THAT WE SHOULD GO TO THE CORPORATION THAT IS SHIELDING THEM, IN
MOST CASES, OF COURSE, UNINTENTIONALLY, BUT STILL GO TO THE CORPORATION
AND SAY:  "NOW PLEASE DISTRIBUTE THOSE DIVIDENDS SO THAT WE CAN GET AT
THIS SHAREHOLDER WHO IS DODGING HIS BURDEN UNDER EISNER V. MACOMBER"? 
ISN'T THAT ALL VERY NATURAL, SIR? 

TITLE II OF THE REVENUE ACT OF 1937 AMENDED THE REVENUE ACT OF 1936
BY ADDING SEC. 334, WHICH PROVIDED FOR THE INCLUSION IN THE GROSS
INCOME OF SHAREHOLDERS IN FOREIGN PERSONAL HOLDING COMPANIES THE
UNDISTRIBUTED CORPORATE INCOME.  THE ABUSES INCIDENT TO THE EMPLOYMENT
OF THIS DEVICE HAD BEEN BROUGHT OUT AT HEARINGS BEFORE A JOINT
COMMITTEE ON TAX EVASION AND AVOIDANCE, 75TH CONG., 1ST SESS.  THE
COMMITTEE REPORTS ON THE BILL CITE THE PRACTICAL NECESSITY FOR THIS
FORM OF TAX IN SUPPORT OF ITS CONSTITUTIONALITY.  H.R. REP. NO. 1546,
75TH CONG., 1ST SESS., PP. 13-14; S. REP. NO. 1242, 75TH CONG., 1ST
SESS., PP. 15-16; REPORT OF THE JOINT COMMITTEE ON TAX EVASION AND
AVOIDANCE, HOUSE DOC. NO. 337, 75TH CONG., 1ST SESS., PP. 16-19.  SEE
STATEMENT OF CONGRESSMAN VINSON ON THE FLOOR OF THE HOUSE, 81 CONG.
REC. 9035:  "THE PHILOSOPHY IN REGARD TO FOREIGN PERSONAL HOLDING
COMPANIES IS BASED UPON THE INHERENT POWER IN THE GOVERNMENT TO PROTECT
ITSELF FROM DEVICES TO AVOID AND EVADE ITS LAW.  THE SUPREME COURT HAS
SAID THAT THE CONGRESS HAS THE POWER TO REGULATE INTERSTATE RATES, AND
THAT IT CAN REGULATE INTRASTATE RATES WHEN SUCH EXERCISE OF POWER IS TO
PROTECT THE PLENARY POWER OVER INTERSTATE RATES.  WE FEEL CERTAIN THAT
THE JURISDICTION OVER AMERICAN TAXPAYERS AND INCOME TO OUR CITIZENS,
TOGETHER WITH THE POWER TO PROTECT OUR REVENUES ARE AMPLE LEGAL SUPPORT
FOR OUR POSITION."  SEE ALSO, STATEMENT OF CONGRESSMAN TREADWAY, 81
CONG. REC. 9024. 

THE FOREIGN PERSONAL HOLDING COMPANY TAX WAS RETAINED IN THE REVENUE
ACT FOR 1938.  52 STAT. 447, 545 ET SEQ. 

FN38  SEE REPORT OF SUBCOMMITTEE OF THE HOUSE COMMITTEE ON WAYS AND
MEANS, 75TH CONG., 3D SESS., PP. 2 ET SEQ.; H.R. REP. NO. 1860, 75TH
CONG., 3D SESS., PP. 4-6; S. REP. NO. 1567, 75TH CONG., 3D SESS., PP. 2
5; H.R. REP. NO. 2330, 75TH CONG., 3D SESS., PP. 1 ET SEQ., 23. 

FN39  SEE STATEMENT OF CONGRESSMAN VINSON OF KENTUCKY ON THE FLOOR OF
THE HOUSE, 83 CONG. REC. 2780, AND COLLOQUY SET FORTH IN FOOTNOTE 37,
SUPRA. 

FN40  52 STAT. 447, 497. 

FN41  ARTICLE 115-7 OF REGULATIONS 101; SEC. 19.115-7 OF REGULATIONS
103. 

FN42  SEC. 214 OF THE REVENUE ACT OF 1939, 53 STAT. 862, 872. 

FN43  T.D. 5020, CUM. BULL.  1940-2, P. 118, AMENDING SEC. 19.115-7
OF REGULATIONS 103, PROMULGATED UNDER THE INTERNAL REVENUE CODE. 

AMENDMENT OF REGULATIONS 101 AND 94 DID NOT COME UNTIL JANUARY 19,
1942, BY T.D. 5110, CUM. BULL.  1942-1, P. 160. 

AS AMENDED, THE REGULATION READ:  "A DISTRIBUTION MADE BY A
CORPORATION TO ITS SHAREHOLDERS IN ITS STOCK OR IN RIGHTS TO ACQUIRE
ITS STOCK SHALL BE TREATED AS A DIVIDEND TO THE FULL EXTENT THAT IT
CONSTITUTES INCOME TO THE SHAREHOLDERS WITHIN THE MEANING OF THE
SIXTEENTH AMENDMENT TO THE CONSTITUTION." 

FN44  SEE NOTE 3, SUPRA. 

FN45  SEE ALSO, EDWARDS V. DARBY, 12 WHEAT.  206, 210; UNITED STATES
V. MOORE, 95 U.S. 760, 763; FAWCUS MACHINE CO. V. UNITED STATES, 282
U.S. 375, 378; NORWEGIAN NITROGEN CO. V. UNITED STATES, 288 U.S. 294,
315. 

FN46  HELVERING V. R.J. REYNOLDS TOBACCO CO., 306 U.S. 110; CF.
HELVERING V. WILSHIRE OIL CO., 308 U.S. 90; HELVERING V. REYNOLDS, 313
U.S. 428; WHITE V. WINCHESTER CLUB, SUPRA. 

THE PROBLEMS IN THIS FIELD HAVE EVOKED EXTENSIVE COMMENTARY.  PAUL,
USE AND ABUSE OF TAX REGULATIONS IN STATUTORY CONSTRUCTION, 49 YALE LAW
JOURNAL 660, REPRINTED WITH SOME CHANGES IN PAUL, STUDIES IN FEDERAL
TAXATION, THIRD SERIES (1940), 420; ALVORD, TREASURY REGULATIONS AND
THE WILSHIRE OIL CASE, 40 COLUMBIA LAW REVIEW 252; SURREY, THE SCOPE
AND EFFECT OF TREASURY REGULATIONS UNDER THE INCOME, ESTATE AND GIFT
TAXES, 88 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 556; BROWN,
REGULATIONS, REENACTMENT, AND THE REVENUE ACTS, 54 HARVARD LAW REVIEW
377; GRISWOLD, A SUMMARY OF THE REGULATIONS PROBLEM, 54 HARVARD LAW
REVIEW 398; FELLER, ADDENDUM TO THE REGULATIONS PROBLEM, 54 HARVARD LAW
REVIEW 1311. 

FN47  HELVERING V. WINMILL, 305 U.S. 79, 83:  "TREASURY REGULATIONS
AND INTERPRETATIONS LONG CONTINUED WITHOUT SUBSTANTIAL CHANGE, APPLYING
TO UNAMENDED OR SUBSTANTIALLY REENACTED STATUTES, ARE DEEMED TO HAVE
RECEIVED CONGRESSIONAL APPROVAL AND HAVE THE EFFECT OF LAW."  IN
HELVERING V. R.J. REYNOLDS TOBACCO CO., 306 U.S. 110, 116, IT WAS SAID
THAT:  "SINCE THE LEGISLATIVE APPROVAL OF EXISTING REGULATIONS BY
REENACTMENT OF THE STATUTORY PROVISION TO WHICH THEY APPERTAIN GIVES
SUCH REGULATIONS THE FORCE OF LAW, WE THINK THAT CONGRESS DID NOT
INTEND TO AUTHORIZE THE TREASURY TO REPEAL THE RULE OF LAW THAT EXISTED
DURING THE PERIOD FOR WHICH THE TAX IS IMPOSED," AND THE QUESTION OF
THE VALIDITY OF PROSPECTIVE AMENDMENT WAS LEFT OPEN.  IN HELVERING V.
WILSHIRE OIL CO., 308 U.S. 90, THE COURT CAREFULLY EXAMINED THE
TAXPAYER'S POSITION FOR EQUITIES AND FOUND IT WANTING; AND AFTER CITING
THE REYNOLDS TOBACCO CASE WITH APPROVAL, STATED WITH REFERENCE TO THE
VIEW THAT REENACTMENT OF A STATUTE CARRIED LEGISLATIVE APPROVAL OF ITS
EXISTING VALID ADMINISTRATIVE CONSTRUCTION, THAT:  "IT DOES NOT MEAN
THAT A REGULATION INTERPRETING A PROVISION OF ONE ACT BECOMES FROZEN
INTO ANOTHER ACT MERELY BY REENACTMENT OF THAT PROVISION, SO THAT THAT
ADMINISTRATIVE INTERPRETATION CANNOT BE CHANGED PROSPECTIVELY THROUGH
EXERCISE OF APPROPRIATE RULE-MAKING POWERS."  ID. AT 100.  HELVERING V.
REYNOLDS, 313 U.S. 428, QUALIFIED THE REYNOLDS TOBACCO CASE AND
DISTINGUISHED IT ON THE GROUNDS THAT "THE TRANSACTIONS THERE IN
QUESTION TOOK PLACE AT A TIME WHEN A REGULATION WAS IN FORCE WHICH
EXPRESSLY NEGATIVED ANY TAX LIABILITY.  THE REGULATION REMAINED
OUTSTANDING FOR A LONG TIME AND WAS FOLLOWED BY SEVERAL REENACTMENTS OF
THE STATUTE.  ABOUT FIVE YEARS AFTER THE TRANSACTIONS IN QUESTION TOOK
PLACE, THE PRIOR REGULATION WAS AMENDED SO AS TO IMPOSE A TAX
LIABILITY.  THERE ARE NO SUCH CIRCUMSTANCES HERE."  ID. AT 432-433. 

FN48  T.D. 4729, CUM. BULL.  1937-1, P. 284. 

FN49  SECTION 3791(B) OF THE INTERNAL REVENUE CODE PROVIDES THAT:
"THE SECRETARY, OR THE COMMISSIONER WITH THE APPROVAL OF THE SECRETARY,
MAY PRESCRIBE THE EXTENT, IF ANY, TO WHICH ANY RULING, REGULATION, OR
TREASURY DECISION, RELATING TO THE INTERNAL REVENUE LAWS, SHALL BE
APPLIED WITHOUT RETROACTIVE EFFECT." 

THIS PROVISION HAS BEEN IN ITS PRESENT FORM SINCE SEC. 506 OF THE
REVENUE ACT OF 1934, 48 STAT. 680, 757, AMENDED SEC. 1108(A) OF THE
REVENUE ACT OF 1926.  IT IS THE FINAL STATUTE OF A SERIES INTENDED TO
RELIEVE THE TREASURY FROM THE EFFECT OF THE VIEW THAT ITS
ADMINISTRATIVE RULINGS, LIKE COURT DECISIONS, MUST HAVE RETROACTIVE AS
WELL AS PROSPECTIVE OPERATION. 

DURING AND AFTER THE FIRST WORLD WAR THE TREASURY HAD BEEN BURDENED
WITH A GREAT VOLUME OF TAX BUSINESS.  PERFECT CONSISTENCY IN RULINGS
WAS IMPOSSIBLE, AND THE VIEW THAT EACH CHANGE IN ADMINISTRATIVE
CONSTRUCTION MUST BE GIVEN RETROACTIVE EFFECT DEPRIVED BOTH THE
GOVERNMENT AND THE TAXPAYERS OF ANY ASSURANCE THAT CASES ONCE SETTLED
WOULD STAY SETTLED.  SEE STATEMENT BY DR. ADAMS, TAX ADVISER TO THE
TREASURY, HEARINGS, REVENUE REVISION, HOUSE WAYS AND MEANS COMMITTEE,
67TH CONG., 3D SESS., PP. 38-40; H.R. REP. NO. 1035, 66TH CONG., 2D
SESS., P. 3. 

TO REMEDY THIS SITUATION CONGRESS PROVIDED IN SEC. 1314 OF THE R ACT
OF 1921, 42 STAT. 227, 314, THAT:  "IN CASE A REGULATION OR TREASURY
DECISION" SHOULD BE REVERSED BY A SUBSEQUENT "REGULATION OR TREASURY
DECISION, AND SUCH REVERSAL IS NOT IMMEDIATELY OCCASIONED OR REQUIRED
BY A DECISION OF A COURT OF COMPETENT JURISDICTION," THE SUBSEQUENT
REGULATION OR DECISION MIGHT BE APPLIED WITHOUT RETROACTIVE EFFECT. 
THIS PROVISION WAS CARRIED INTO THE REVENUE ACTS OF 1924 AND 1926.  43
STAT. 253, 340; 44 STAT. 9, 114.  THE 1928 ACT EXPANDED IT TO INCLUDE
CASES WHERE THE NEW REGULATION OR TREASURY DECISION WAS OCCASIONED OR
REQUIRED BY A COURT DECISION.  45 STAT. 791, 874; S. REP. NO. 960, 70TH
CONG., 1ST SESS., P. 40.  THE CONFERENCE COMMITTEE STATED THAT:  "IT IS
HOPED THAT THIS PROVISION WILL PREVENT THE CONSTANT REOPENING OF CASES
ON ACCOUNT OF CHANGES IN REGULATIONS OR TREASURY DECISIONS, AND IT IS
BELIEVED THAT SOUND ADMINISTRATION PROPERLY PLACES UPON THE GOVERNMENT
THE RESPONSIBILITY AND BURDEN OF INTERPRETING THE LAW AND OF
PRESCRIBING REGULATIONS UPON WHICH THE TAXPAYERS MAY RELY."  H.R. REP.
NO. 1882, 70TH CONG., 1ST SESS., P. 22. 

THE COMMITTEE REPORTS STATE THAT SEC. 506 OF THE REVENUE ACT OF 1934,
NOW SEC. 3791(B) OF THE INTERNAL REVENUE CODE, WAS INTENDED TO PERMIT
THE TREASURY TO AVOID INEQUITIES TO PERSONS WHO HAD CLOSED TRANSACTIONS
IN RELIANCE UPON "EXISTING PRACTICE," AND THAT THE "AMENDMENT EXTENDS
THE RIGHT GRANTED BY EXISTING LAW TO THE TREASURY DEPARTMENT TO GIVE
REGULATIONS AND TREASURY DECISIONS AMENDING PRIOR REGULATIONS OR
TREASURY DECISIONS PROSPECTIVE EFFECT ONLY, BY ALLOWING THE SECRETARY,
OR THE COMMISSIONER WITH THE APPROVAL OF THE SECRETARY, TO PRESCRIBE
THE EXACT EXTENT TO WHICH ANY REGULATION OR TREASURY DECISION, WHETHER
OR NOT IT AMENDS A PRIOR REGULATION OR TREASURY DECISION, WILL BE
APPLIED WITHOUT RETROACTIVE EFFECT.  THE AMENDMENT FURTHERMORE PERMITS
INTERNAL REVENUE RULINGS AS WELL AS REGULATIONS OR TREASURY DECISIONS
TO BE APPLIED WITHOUT RETROACTIVE EFFECT."  H.R. REP. NO. 704, 73D
CONG., 2D SESS., P. 38; S. REP. NO. 558, 73D CONG., 2D SESS., P. 48. 
THUS IT APPEARS THAT THIS LEGISLATION WAS INTENDED TO PERMIT ESCAPE
FROM THE RETROACTIVE EFFECTS OF ADMINISTRATIVE ACTION BY THE TREASURY,
RATHER THAN TO INCREASE ITS POWER TO MAKE RETROACTIVE RULINGS.  CF. 69
CONG. REC. 7881. 

FN50  TRAYNOR, ADMINISTRATIVE AND JUDICIAL PROCEDURE FOR FEDERAL
INCOME, ESTATE, AND GIFT TAXES, 38 COLUMBIA LAW REVIEW 1393. 

FN51  THUS, THE CONGRESS WHICH FIRST ENACTED SEC. 115(F)(1) ALSO
SUBSTANTIALLY REENACTED PROVISIONS OF THE MUNICIPAL BANKRUPTCY ACT HELD
UNCONSTITUTIONAL IN ASHTON V. CAMERON COUNTY DISTRICT, 298 U.S. 513. 
IT DID SO AFTER CHAIRMAN SUMNERS OF THE JUDICIARY COMMITTEE, IN CHARGE
OF THE BILL, FRANKLY STATED ON THE FLOOR OF THE HOUSE THAT IT IMPLIED
CERTAIN PROCEEDINGS WHICH WOULD BE UNCONSTITUTIONAL UNDER THAT
DECISION.  HE WENT ON TO SAY, HOWEVER, THAT IT WAS NOT ONLY THE RIGHT
BUT THE DUTY OF CONGRESS TO PRESENT THIS QUESTION ONCE MORE TO THE
COURT, SINCE THE DECISION, IF ALLOWED TO STAND, HAD CERTAIN
CONSEQUENCES WHICH HE DESCRIBED AND DEPLORED.  THIS HISTORY WAS CALLED
TO THE ATTENTION OF THE COURT, AND THE ACT WAS SUSTAINED.  UNITED
STATES V. BEKINS, 304 U.S. 27, 33. 

FN52  THUS, O'MALLEY V. WOODROUGH, 307 U.S. 277, OVERRULED MILES V.
GRAHAM, 268 U.S. 501, AS TO THE CONSTITUTIONALITY OF TAXATION OF
SALARIES OF FEDERAL JUDGES; UNITED STATES V. DARBY, 312 U.S. 100,
OVERRULED HAMMER V. DAGENHART, 247 U.S. 251, AS TO CONGRESSIONAL POWER
OVER LABOR IN MANUFACTURE; WEST COAST HOTEL CO. V. PARRISH, 300 U.S.
379, OVERRULED ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525, AND
MOREHEAD V. TIPALDO, 298 U.S. 587, AS TO POWER TO ENACT MINIMUM WAGE
LAWS.  COMPARE ALSO WRIGHT V. VINTON BRANCH, 300 U.S. 440, WITH
LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555, AS TO FARMER
BANKRUPTCY STATUTES; LABOR BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1,
WITH SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495, AS TO COMMERCE
POWER; AND UNITED STATES V. DARBY, SUPRA, AND SUNSHINE ANTHRACITE COAL
CO. V. ADKINS, 310 U.S. 381, WITH CARTER V. CARTER COAL CO., 298 U.S.
238, AS TO COMMERCE POWER.  SEE ALSO, CASES CITED BY MR. JUSTICE
BRANDEIS IN BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393, 406-408,
NOTES 1 AND 2. 

FN53  ARTICLE I, SEC. 8, CL. 1, OF THE CONSTITUTION PROVIDES THAT
"THE CONGRESS SHALL HAVE POWER TO LAY AND COLLECT TAXES, DUTIES,
IMPOSTS AND EXCISES, TO PAY THE DEBTS AND PROVIDE FOR THE COMMON
DEFENCE AND GENERAL WELFARE OF THE UNITED STATES  ..."  ARTICLE I, SEC.
7, CL. 1, PROVIDES THAT "ALL BILLS FOR RAISING REVENUE SHALL ORIGINATE
IN THE HOUSE OF REPRESENTATIVES; BUT THE SENATE MAY PROPOSE OR CONCUR
WITH AMENDMENTS AS ON OTHER BILLS." 

FN54  THE CONSIDERATIONS WHICH UNDERLAY THE DECISIONS IN TOWNE V.
EISNER AND EISNER V. MACOMBER MAY HAVE HAD THEIR INFLUENCE IN THE
JUDGMENT OF CONGRESS ITSELF.  COMPARE THE QUESTION PUT BY SENATOR BONE
TO SENATOR BLACK, SET FORTH SUPRA, P. 384.  BEFORE THE DECISION IN
EISNER V. MACOMBER, THE SUPREME JUDICIAL COURT OF MASSACHUSETTS HAD
HELD THAT STOCK DIVIDENDS COULD BE TAXED, TAX COMMISSIONER V. PUTNAM,
227 MASS. 522, 116 N.E. 904(1917); BUT THE MASSACHUSETTS LEGISLATURE
HAD ALSO SPECIFICALLY EXEMPTED THEM FROM INCOME TAXATION.  MASS. STAT.
1920, C. 352, NOW G.L.C. 62 SEC. 1(B).  AFTER THE DECISION OF EISNER V.
MACOMBER, THE SUPREME COURT OF WISCONSIN REJECTED ITS REASONING IN
STATE EX REL. DULANEY V. NYGAARD, 174 WIS. 597, 183 N.W. 884(1921), BUT
SINCE 1927 STOCK DIVIDENDS HAVE BEEN EXEMPTED FROM INCOME TAXATION. 
WIS. STAT. SEC. 71.02.  IN 1926, THE NEW YORK LEGISLATURE ADOPTED A
PROVISION RETROACTIVE TO JANUARY 1, 1919, THE EFFECTIVE DATE OF THE
FIRST STATE INCOME-TAX LAW, EXEMPTING ALL STOCK DIVIDENDS.  SEE PEOPLE
EX REL. CLARK V. GILCHRIST, 243 N.Y. 173, 153 N.E. 39. 

MR. JUSTICE RUTLEDGE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING: 

EISNER V. MACOMBER DIES A SLOW DEATH.  IT NOW HAS A NEW REPRIEVE
GRANTED UNDER CIRCUMSTANCES WHICH COMPEL MY DISSENT. 

                                  I. 

IN 1936, CONGRESS PROVIDED THAT STOCK DIVIDENDS WERE TAXABLE AS
INCOME WHEN THEY CONSTITUTED "INCOME TO THE SHAREHOLDER WITHIN THE
MEANING OF THE SIXTEENTH AMENDMENT TO THE CONSTITUTION."  FN1  SEC.
115(F)(1).  THAT STATUTORY PROVISION IS NOW REWRITTEN SO AS TO PERMIT
STOCK DIVIDENDS TO BE TAXABLE WHEN THEY CONSTITUTE "INCOME TO THE
SHAREHOLDER WITHIN THE MEANING OF THE SIXTEENTH AMENDMENT TO THE
CONSTITUTION AS CONSTRUED BY EISNER V. MACOMBER."  THAT EXTRAORDINARY
RESULT IS REACHED IN THE FACE OF THE PLAIN LANGUAGE OF THE ACT AND IN
FACE OF CLEAR STATEMENTS OF ITS PURPOSE MADE IN COMMITTEE REPORTS.  THE
REPORT OF THE HOUSE WAYS AND MEANS COMMITTEE (H. REP. NO. 2475, 74TH
CONG., 2D SESS., P. 10) STATED THAT STOCK DIVIDENDS WERE TO BE TAXABLE
WHEN THEY CONSTITUTED "INCOME TO THE SHAREHOLDER WITHIN THE MEANING OF
THE SIXTEENTH AMENDMENT TO THE CONSTITUTION."  THE REPORT OF THE SENATE
FINANCE COMMITTEE (S. REP. NO. 2156, 74TH CONG., 2D SESS., P. 18)
CONTAINED THE UNEQUIVOCAL STATEMENT THAT "STOCK DIVIDENDS ARE MADE
TAXABLE TO THE FULL EXTENT PERMITTED BY THE CONSTITUTION."  THAT
PURPOSE IS NOW THWARTED.  RELIANCE IS PLACED ON CERTAIN STATEMENTS MADE
BY MR. VINSON WHO MANAGED THE BILL ON THE FLOOR OF THE HOUSE.  YET THE
MOST THAT CAN BE SAID IS THAT HIS STATEMENTS IN EXPLANATION OF THE BILL
WERE AMBIGUOUS.  HE STATED, TO BE SURE, THAT THE NEW PROVISION WAS NOT
TO BE REGARDED AS "AN ATTACK UPON THE EISNER AGAINST MACOMBER
DECISION."  80 CONG. REC., PT. 6, P. 6215.  BUT IN ANSWER TO AN INQUIRY
FROM MR. TREADWAY WHETHER THE NEW PROVISION "DESCRIBES NEW STOCK
DIVIDENDS THAT CAN BE TAXED OR WHAT PORTION OF STOCK DIVIDENDS UNDER
THE SIXTEENTH AMENDMENT CAN IN THE FUTURE BE TAXED," HE MADE THE
FOLLOWING STATEMENT:  "WELL, WE TAKE THE BROAD POSITION THAT STOCK
DIVIDENDS THAT ARE TAXABLE INCOME WITHIN THE SIXTEENTH AMENDMENT ARE
SUBJECT TO TAXATION, AND IF THEY ARE NOT SUCH STOCK DIVIDENDS AND NOT
ANY TAXABLE INCOME UNDER THE SIXTEENTH AMENDMENT, THEY ARE NOT SUBJECT
TO TAXES."  ID., P. 6310.  I FAIL TO SEE IN THAT DECLARATION EVEN ANY
INTIMATION THAT EISNER V. MACOMBER RATHER THAN THE CONSTITUTION MARKED
THE REACH OF THE NEW LEGISLATION.  FURTHERMORE, A READING OF THE WHOLE
DISCUSSION ON THE FLOOR OF THE HOUSE INDICATES TO ME THAT HIS DENIAL
THAT THE LEGISLATION MADE AN "ATTACK" ON EISNER V. MACOMBER FELL FAR
SHORT OF SUGGESTING THAT THE HOUSE INTENDED TO FORECLOSE THIS COURT
FROM REEXAMINING EISNER V. MACOMBER.  IF CONGRESS HAD THAT PURPOSE, THE
ACT HARDLY WOULD HAVE BEEN PHRASED IN TERMS WHICH EMBRACE THE FULL
SCOPE OF THE SIXTEENTH AMENDMENT.  TO ME, THE DISAVOWAL OF AN INTENT TO
"ATTACK" EISNER V. MACOMBER MEANT NO MORE THAN A DISCLAIMER OF ANY
PURPOSE TO PROPOSE UNCONSTITUTIONAL LEGISLATION.  EISNER V. MACOMBER IS
A DECISION OF THIS COURT.  UNDER THE TRADITIONAL CONCEPTIONS OF THE
PLACE OF JUDICIAL REVIEW IN OUR CONSTITUTIONAL SYSTEM, THIS COURT AND
ONLY THIS COURT CAN CHANGE THE RULE OF THAT CASE IN ABSENCE OF AN
AMENDMENT TO THE CONSTITUTION.  CONGRESS HERE WAS MERELY RESPECTING
THAT TRADITIONAL VIEW.  IT WANTED TO GO AS FAR AS IT COULD.  BUT IT
COULD HAVE NO IDEA HOW FAR THAT WOULD BE UNTIL THIS COURT SPOKE.  NO
ONE COULD PREDICT WHETHER THIS COURT WOULD OVERRULE, MODIFY, OR SUSTAIN
EISNER V. MACOMBER WHEN THE 1936 LEGISLATION CAME BEFORE IT.  INDEED,
WHEN THE 1936 BILL PASSED THE HOUSE,  FN2  KOSHLAND V. HELVERING, 298
U.S. 441, WHICH NARROWED THE APPLICATION OF EISNER V. MACOMBER, HAD NOT
BEEN DECIDED BY THIS COURT.  AND HELVERING V. GOWRAN, 302 U.S. 238,
WHICH SOMEWHAT EXTENDED THE RULE OF THE KOSHLAND CASE WAS NOT DECIDED
UNTIL AFTER THE 1936 ACT WAS PASSED.  BUT NUMEROUS DECISIONS BY LOWER
COURTS HAD MADE INROADS ON THE EISNER V. MACOMBER DOCTRINE.  THE RULE
OF THAT CASE WAS IN FLUX; A PROCESS OF EROSION HAD SET IN; AND NONE
KNEW WHERE THAT EROSION WOULD CEASE.  ACCORDINGLY, CONGRESS DRAFTED
SEC. 115(F) OF THE 1936 ACT IN THE MOST FLEXIBLE OF TERMS.  IT USED
SWEEPING LANGUAGE INCORPORATING THE FULL COVERAGE OF THE SIXTEENTH
AMENDMENT SO THAT THOSE STOCK DIVIDENDS WOULD BE TAXED WHICH THIS COURT
WOULD PERMIT TO BE TAXED.  THERE ARE PROBABLY OTHER WAYS IN WHICH THE
SAME IDEA COULD HAVE BEEN PHRASED.  BUT THE ONE CHOSEN IS CLEAR
ENOUGH. 

THE ONLY TREASURY REGULATIONS APPLICABLE TO THE TAXABLE YEAR IN
QUESTION - 1939 - ARE REGULATIONS 103.  THESE WERE ORIGINALLY
PROMULGATED ON JANUARY 29, 1940.  SEC. 19.115-7 PROVIDED: "A
DISTRIBUTION MADE BY A CORPORATION TO ITS SHAREHOLDERS IN ITS STOCK OR
IN RIGHTS TO ACQUIRE ITS STOCK SHALL BE TREATED AS A DIVIDEND TO THE
FULL EXTENT THAT IT CONSTITUTES INCOME TO THE SHAREHOLDERS WITHIN THE
MEANING OF THE SIXTEENTH AMENDMENT TO THE CONSTITUTION."  THAT SENTENCE
WAS FOLLOWED BY THE STATEMENT, "THE SUPREME COURT HAS POINTED OUT SOME
OF THE CHARACTERISTICS DISTINGUISHING A STOCK DIVIDEND WHICH
CONSTITUTES INCOME FROM ONE WHICH DOES NOT CONSTITUTE INCOME WITHIN THE
MEANING OF THE CONSTITUTION."  THEN FOLLOWED A SUMMARY OF OUR
DECISIONS, ENDING WITH THREE EXAMPLES BASED ON THE KOSHLAND CASE,
EISNER V. MACOMBER, AND THE GOWRAN CASE.  ON NOVEMBER 15, 1940, THIS
REGULATION WAS AMENDED BY STRIKING OUT EVERYTHING FOLLOWING THE FIRST
SENTENCE.  THIS REGULATION, HOWEVER, EVEN IN ITS ORIGINAL FORM DID NOT
AND COULD NOT FORECLOSE INQUIRY INTO THE VALIDITY OF THE DECISION IN
EISNER V. MACOMBER.  IT DID NO MORE THAN STATE THE CONSTITUTIONAL
PRINCIPLES ON WHICH THE DECIDED CASES RESTED.  IT CERTAINLY DID NOT
INDICATE THAT THE TREASURY CONSTRUED THE STATUTE MORE NARROWLY THAN THE
CONSTITUTION ITSELF.  HOWEVER THAT MAY BE, THIS COURT ON MORE THAN ONE
OCCASION HAS REFUSED TO FOLLOW A TREASURY REGULATION WHICH IT FELT TO
BE "IN THE TEETH" OF THE STATUTE.  HELVERING V. SABINE TRANSPORTATION
CO., ANTE, P. 306; HELVERING V. CREDIT ALLIANCE CORP., 316 U.S. 107. 
IF THIS REGULATION BE CONSTRUED TO NARROW THE ACT SO AS TO TAX ONLY
STOCK DIVIDENDS PERMITTED BY EISNER V. MACOMBER, I WOULD HAVE LESS
RELUCTANCE IN STRIKING IT DOWN THAN I HAVE HAD IN OTHER INSTANCES. 

BUT THERE IS SAID TO BE LACK OF WISDOM IN THIS INTERPRETATION OF THE
ACT.  IT IS ARGUED THAT IT WOULD BE DISRUPTIVE OF TAX ADMINISTRATION. 
IT IS URGED THAT A DECISION WHICH NOW OVERRULED EISNER V. MACOMBER
WOULD BE UNFAIR BECAUSE IT WOULD BE RETROACTIVE.  THOSE MATTERS ARE
NONE OF OUR BUSINESS.  EVERY REVENUE ACT WHICH CONGRESS HAS PASSED HAS
A RETROACTIVE EFFECT.  IT IS SOMETHING ON WHICH TAXPAYERS OF NECESSITY
TAKE THEIR CHANCES.  MILLIKEN V. UNITED STATES, 283 U.S. 15, 23.  AND
MANY OF THE UNCERTAINTIES IN REVENUE ACTS NECESSARILY ARE NOT RESOLVED
UNTIL THIS COURT PASSES ON THEM YEARS LATER.  HERE THERE IS NO POSSIBLE
BASIS FOR COMPLAINT.  THESE STOCK DIVIDENDS WERE DECLARED IN 1939,
THREE YEARS AFTER THE ACT MAKING THEM TAXABLE WAS PASSED.  OF COURSE,
THE TAXPAYER NO MORE THAN CONGRESS COULD PREDICT WHAT INTERPRETATION
THIS COURT WOULD GIVE THE NEW STATUTE.  SEC. 115(F)(1), HOWEVER, MADE
THE RISKS APPARENT.  THE FACT THAT SOME GUESSED WRONG IS WHOLLY
IRRELEVANT TO THIS LITIGATION.  INEQUITIES MAY RESULT FROM A HOLDING IN
1943 THAT EISNER V. MACOMBER HAS NOT BEEN THE LAW SINCE 1936.  BUT THE
RELIEF AGAINST THEM LIES WITH CONGRESS.  OUR TASK ENDS IF WE ERASE
EISNER V. MACOMBER AND GIVE CONGRESS A CLEAN SLATE ON WHICH TO WRITE. 
THEN AND ONLY THEN CAN CONGRESS DESIGN A TAX SYSTEM TREATING STOCK
DIVIDENDS CONSISTENTLY.  SO LONG AS CONGRESS HAS TO GUESS WHETHER OR
NOT THIS COURT WILL OVERRULE EISNER V. MACOMBER, ANY INTERIM TREATMENT
WHICH IT GIVES STOCK DIVIDENDS MAY HAVE TO BE READJUSTED AFTER THIS
COURT SPEAKS, SO AS TO REMOVE INEQUITIES WHICH MAY HAVE RESULTED. 

                                 II. 

I THINK EISNER V. MACOMBER SHOULD BE OVERRULED.  THE SIXTEENTH
AMENDMENT GIVES CONGRESS THE POWER "TO LAY AND COLLECT TAXES ON
INCOMES, FROM WHATEVER SOURCE DERIVED."  AS MR. JUSTICE BRANDEIS STATED
IN HIS DISSENT IN EISNER V. MACOMBER, 252 U.S., P. 237, THAT AMENDMENT
WAS DESIGNED TO INCLUDE "EVERYTHING WHICH BY REASONABLE UNDERSTANDING
CAN FAIRLY BE REGARDED AS INCOME."  STOCK DIVIDENDS REPRESENTING
PROFITS CERTAINLY ARE INCOME IN THE POPULAR SENSE.  "FROM A PRACTICAL
COMMON-SENSE POINT OF VIEW THERE IS SOMETHING STRANGE IN THE IDEA THAT
A MAN MAY INDEFINITELY GROW RICHER WITHOUT EVER BEING SUBJECT TO AN
INCOME TAX."  POWELL, INCOME FROM CORPORATE DIVIDENDS, 35 HARV. L. REV.
363, 376.  THE WEALTH OF STOCKHOLDERS NORMALLY INCREASES AS A RESULT OF
THE EARNINGS OF THE CORPORATION IN WHICH THEY HOLD SHARES.  I SEE NO
REASON WHY CONGRESS COULD NOT TREAT THAT INCREASE IN WEALTH AS "INCOME"
TO THEM.  FN3  SEE COLLECTOR V. HUBBARD, 12 WALL.  1, 18; HELVERING V.
NATIONAL GROCERY CO., 304 U.S. 282, 288; POWELL, THE STOCK-DIVIDEND
DECISION AND THE CORPORATE NONENTITY, 5 NAT. TAX ASSOC. BULL.  201. 
THE NOTION THAT THERE CAN BE NO "INCOME" TO THE SHAREHOLDERS IN SUCH A
CASE WITHIN THE MEANING OF THE SIXTEENTH AMENDMENT UNLESS THE GAIN IS
"SEVERED FROM" CAPITAL AND MADE AVAILABLE TO THE RECIPIENT FOR HIS
"SEPARATE USE, BENEFIT AND DISPOSAL" (EISNER V. MACOMBER, 252 U.S., PP.
207, 211) WILL NOT STAND ANALYSIS.  IN CASES LIKE KOSHLAND V. HELVERING
AND HELVERING V. GOWRAN WHERE STOCK DIVIDENDS WERE HELD TO BE TAXABLE
AS INCOME, BOTH THE ORIGINAL INVESTMENT AND THE ACCUMULATIONS WERE
RETAINED BY THE COMPANY.  YET THOSE CASES HOLD THAT STOCKHOLDERS MAY
RECEIVE "INCOME" FROM THE OPERATIONS OF THEIR CORPORATION THOUGH THE
CORPORATION MAKES NO DISTRIBUTION OF ASSETS TO THEM.  AND SEE UNITED
STATES V. PHELLIS, 257 U.S. 156; ROCKEFELLER V. UNITED STATES, 257 U.S.
176; CULLINAN V. WALKER, 262 U.S. 134; MARR V. UNITED STATES, 268 U.S.
536.  OTHER CASES MAKE PLAIN THAT THERE MAY BE "INCOME" THOUGH NEITHER
MONEY NOR PROPERTY HAS BEEN RECEIVED BY THE TAXPAYER.  BENEFITS
ACCRUING AS THE RESULT OF THE DISCHARGE OF THE TAXPAYER'S INDEBTEDNESS
OR OBLIGATIONS CONSTITUTE FAMILIAR EXAMPLES.  OLD COLONY TRUST CO. V.
COMMISSIONER, 279 U.S. 716; DOUGLAS V. WILLCUTS, 296 U.S. 1; UNITED
STATES V. HENDLER, 303 U.S. 564.  AND INCREASES IN THE VALUE OF
PROPERTY AS A RESULT OF IMPROVEMENTS MADE BY THE LESSEE ARE TAXABLE
INCOME TO THE LESSOR EVEN THOUGH THE TAXPAYER COULD NOT "SEVER THE
IMPROVEMENT BEGETTING THE GAIN FROM HIS ORIGINAL CAPITAL."  HELVERING
V. BRUUN, 309 U.S. 461, 469.  THE DECLARATION OF A STOCK DIVIDEND
NORMALLY WILL NOT INCREASE THE WEALTH OF THE STOCKHOLDERS.  ITS ACCRUAL
WILL USUALLY ANTEDATE THAT EVENT.  SEE HAIG ET AL., THE FEDERAL INCOME
TAX (1921) P. 8.  FOR IT IS THE ACCUMULATION OF CORPORATE EARNINGS OVER
A PERIOD OF TIME WHICH MARKS ANY REAL ACCRUAL OF WEALTH TO THE
STOCKHOLDERS.  THE NARROW QUESTION HERE IS WHETHER CONGRESS HAS THE
POWER TO MAKE THE RECEIPT OF A STOCK DIVIDEND BASED ON EARNINGS AN
OCCASION FOR RECOGNIZING THAT ACCRUAL OF WEALTH FOR INCOME TAX
PURPOSES.  CONGRESS HAS DONE SO THROUGH THE FORMULA OF COMPUTING THE
"INCOME" TO THE STOCKHOLDERS AT THE "FAIR MARKET VALUE" OF THE STOCK
DIVIDENDS RECEIVED.  SEC. 115(J).  WHETHER THAT IS THE MOST APPROPRIATE
PROCEDURE WHICH COULD BE SELECTED FOR THE PURPOSE MAY BE ARGUABLE.  BUT
I CAN SEE NO CONSTITUTIONAL REASON FOR SAYING THAT CONGRESS CANNOT MAKE
THAT CHOICE IF IT SO DESIRES.  THAT IS ONE WAY - THOUGH PERHAPS AT
TIMES A CRUDE ONE - OF MEASURING FOR INCOME TAX PURPOSES THE WEALTH
WHICH NORMALLY ACCRUES TO STOCKHOLDERS AS A RESULT OF THE EARNING OF
THEIR CORPORATION. 

FN1  SEC. 115(A) DEFINES "DIVIDEND" AS FOLLOWS:  "THE TERM 'DIVIDEND'
WHEN USED IN THIS TITLE ...  MEANS ANY DISTRIBUTION MADE BY A
CORPORATION TO ITS SHAREHOLDERS, WHETHER IN MONEY OR IN OTHER PROPERTY,
(1) OUT OF ITS EARNINGS OR PROFITS ACCUMULATED AFTER FEBRUARY 28, 1913,
OR (2) OUT OF THE EARNINGS OR PROFITS OF THE TAXABLE YEAR (COMPUTED AS
OF THE CLOSE OF THE TAXABLE YEAR WITHOUT DIMINUTION BY REASON OF ANY
DISTRIBUTIONS MADE DURING THE TAXABLE YEAR), WITHOUT REGARD TO THE
AMOUNT OF THE EARNINGS AND PROFITS AT THE TIME THE DISTRIBUTION WAS
MADE." 

SEC. 115(F)(1) IS ENTITLED "GENERAL RULE" AND READS AS FOLLOWS:  "A
DISTRIBUTION MADE BY A CORPORATION TO ITS SHAREHOLDERS IN ITS STOCK OR
IN RIGHTS TO ACQUIRE ITS STOCK SHALL NOT BE TREATED AS A DIVIDEND TO
THE EXTENT THAT IT DOES NOT CONSTITUTE INCOME TO THE SHAREHOLDER WITHIN
THE MEANING OF THE SIXTEENTH AMENDMENT TO THE CONSTITUTION." 

SEC. 115(J) SETS FORTH THE FORMULA FOR VALUATION OF DIVIDENDS OTHER
THAN CASH DIVIDENDS:  "IF THE WHOLE OR ANY PART OF A DIVIDEND IS PAID
TO A SHAREHOLDER IN ANY MEDIUM OTHER THAN MONEY THE PROPERTY RECEIVED
OTHER THAN MONEY SHALL BE INCLUDED IN GROSS INCOME AT ITS FAIR MARKET
VALUE AT THE TIME AS OF WHICH IT BECOMES INCOME TO THE SHAREHOLDER." 

FN2  APRIL 29, 1936.  SEE 80 CONG. REC., P. 6367.  THE KOSHLAND CASE
WAS DECIDED BY THIS COURT ON MAY 18, 1936. 

FN3  CF. THE INCOME TAX OF PARTNERS.  SEC. 182 OF THE INTERNAL
REVENUE CODE PROVIDES:  "IN COMPUTING THE NET INCOME OF EACH PARTNER,
HE SHALL INCLUDE, WHETHER OR NOT DISTRIBUTION IS MADE TO HIM  ...  (C)
HIS DISTRIBUTIVE SHARE OF THE ORDINARY NET INCOME OR THE ORDINARY NET
LOSS OF THE PARTNERSHIP, COMPUTED AS PROVIDED IN SECTION 183(B)."  A
PARTNER IS CHARGEABLE WITH HIS ALLOCABLE SHARE OF THE PARTNERSHIP
EARNINGS EVEN WHERE THEY COULD NOT BE DISTRIBUTED TO HIM BY REASON OF
LOCAL LAW.  HEINER V. MELLON, 304 U.S. 271, 281:  "THE TAX IS THUS
IMPOSED UPON THE PARTNER'S PROPORTIONATE SHARE OF THE NET INCOME OF THE
PARTNERSHIP, AND THE FACT THAT IT MAY NOT BE CURRENTLY DISTRIBUTABLE,
WHETHER BY AGREEMENT OF THE PARTIES OR BY OPERATION OF LAW, IS NOT
MATERIAL."  AS STATED BY MR. JUSTICE BRANDEIS IN HIS DISSENT IN EISNER
V. MACOMBER, 252 U.S., P. 231:  "THE STOCKHOLDER'S INTEREST IN THE
PROPERTY OF THE CORPORATION DIFFERS, NOT FUNDAMENTALLY BUT IN FORM
ONLY, FROM THE INTEREST OF A PARTNER IN THE PROPERTY OF THE FIRM. 
THERE IS MUCH AUTHORITY FOR THE PROPOSITION THAT, UNDER OUR LAW, A
PARTNERSHIP OR JOINT STOCK COMPANY IS JUST AS DISTINCT AND PALPABLE AN
ENTITY IN THE IDEA OF THE LAW, AS DISTINGUISHED FROM THE INDIVIDUALS
COMPOSING IT, AS IS A CORPORATION.  NO REASON APPEARS WHY CONGRESS, IN
LEGISLATING UNDER A GRANT OF POWER SO COMPREHENSIVE AS THAT AUTHORIZING
THE LEVY OF AN INCOME TAX, SHOULD BE LIMITED BY THE PARTICULAR VIEW OF
THE RELATION OF THE STOCKHOLDER TO THE CORPORATION AND ITS PROPERTY
WHICH MAY, IN THE ABSENCE OF LEGISLATION, HAVE BEEN TAKEN BY THIS
COURT." 

MR. JUSTICE BLACK AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :



















SMITH V. SHAUGHNESSY, 318 U.S. 176 


NO. 429.  ARGUED JANUARY 14, 1943.  - DECIDED FEBRUARY 15, 1943.  - 128
F.2D 742, AFFIRMED. 


1.  UNDER AN IRREVOCABLE TRANSFER OF PROPERTY IN TRUST, THE INCOME WAS
TO BE PAID TO THE GRANTOR'S WIFE FOR LIFE; UPON HER DEATH, THE CORPUS
WAS TO GO TO THE GRANTOR IF LIVING OR, IF NOT, TO THE WIFE'S HEIRS. 
CONCEDEDLY, THE WIFE'S LIFE INTEREST WAS SUBJECT TO THE FEDERAL GIFT
TAX.  HELD THAT THE REMAINDER INTEREST, LESS THE VALUE OF THE GRANTOR'S
REVERSIONARY INTEREST, WAS SUBJECT TO THE GIFT TAX IMPOSED BY SECS 501,
506 OF THE REVENUE ACT OF 1932.  P. 180. 

2.  THE GIFT TAX UNDER THE REVENUE ACT OF 1932 AMOUNTS IN SOME
INSTANCES TO A SECURITY FOR THE PAYMENT EVENTUALLY OF THE FEDERAL
ESTATE TAX; IT IS IN NO SENSE DOUBLE TAXATION.  P. 179. 

3.  THE LANGUAGE OF THE PROVISION OF THE REVENUE ACT OF 1932 IMPOSING
A TAX UPON EVERY TRANSFER OF PROPERTY BY GIFT, WHETHER THE PROPERTY IS
"REAL OR PERSONAL, TANGIBLE OR INTANGIBLE," IS BROAD ENOUGH TO INCLUDE
A CONTINGENT REMAINDER; AND THE PROVISIONS OF THE TREASURY REGULATIONS
FOR APPLICATION OF THE TAX TO, AND DETERMINATION OF THE VALUE OF, "A
REMAINDER  ...  SUBJECT TO AN OUTSTANDING LIFE ESTATE" ARE CONSISTENT
WITH THE PURPOSE OF THE ACT.  P. 180. 

4.  IN A CASE SUCH AS THIS, WHERE THE GRANTOR HAS NEITHER THE FORM
NOR SUBSTANCE OF CONTROL OVER THE TRUST PROPERTY, AND NEVER WILL HAVE
UNLESS HE OUTLIVES HIS WIFE, IT MUST BE CONCLUDED THAT THE GRANTOR HAS
RELINQUISHED ECONOMIC CONTROL OVER THE TRUST PROPERTY AND THAT THE GIFT
WAS COMPLETE EXCEPT FOR THE VALUE OF HIS REVERSIONARY INTEREST.  P.
181. 

SMITH V. SHAUGHNESSY, COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 317 U.S. 617, TO REVIEW THE REVERSAL OF A JUDGMENT, 40
F.SUPP.  19, ORDERING A REFUND OF A FEDERAL GIFT TAX. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS THE EXTENT OF THE PETITIONER'S LIABILITY FOR A
TAX UNDER SECS. 501, 506 OF THE REVENUE ACT OF 1932, 47 STAT. 169,
WHICH IMPOSES A TAX UPON EVERY TRANSFER OF PROPERTY BY GIFT, "WHETHER
THE TRANSFER IS IN TRUST OR OTHERWISE, WHETHER THE GIFT IS DIRECT OR
INDIRECT, AND WHETHER THE PROPERTY IS REAL OR PERSONAL, TANGIBLE OR
INTANGIBLE; ..." 

THE PETITIONER, AGE 72, MADE AN IRREVOCABLE TRANSFER IN TRUST OF
3,000 SHARES OF STOCK WORTH $571,000.  THE TRUST INCOME WAS PAYABLE TO
HIS WIFE, AGE 44, FOR LIFE; UPON HER DEATH, THE STOCK WAS TO BE
RETURNED TO THE PETITIONER, IF HE WAS LIVING; IF HE WAS NOT LIVING, IT
WAS TO GO TO SUCH PERSONS AS HIS WIFE MIGHT DESIGNATE BY WILL, OR IN
DEFAULT OF A WILL BY HER, TO HER INTESTATE SUCCESSORS UNDER APPLICABLE
NEW YORK LAW.  THE PETITIONER, UNDER PROTEST, PAID A GIFT TAX OF
$71,674.22, ASSESSED ON THE TOTAL VALUE OF THE TRUST PRINCIPAL, AND
BROUGHT SUIT FOR REFUND IN THE DISTRICT COURT.  HOLDING THAT THE
PETITIONER HAD, WITHIN THE MEANING OF THE ACT, EXECUTED A COMPLETED
GIFT OF A LIFE ESTATE TO HIS WIFE, THE COURT SUSTAINED THE
COMMISSIONER'S ASSESSMENT ON $322,423, THE DETERMINED VALUE OF HER LIFE
INTEREST; BUT THE REMAINDER WAS HELD NOT TO BE COMPLETELY TRANSFERRED
AND HENCE NOT SUBJECT TO THE GIFT TAX.  40 F.SUPP.  19.  THE GOVERNMENT
APPEALED AND THE CIRCUIT COURT OF APPEALS REVERSED, ORDERING DISMISSAL
OF THE PETITIONER'S COMPLAINT ON THE AUTHORITY OF ITS PREVIOUS DECISION
IN HERZOG V. COMMISSIONER, 116 F.2D 591.  WE GRANTED CERTIORARI BECAUSE
OF ALLEGED CONFLICT WITH OUR DECISIONS IN HELVERING V. HALLOCK, 309
U.S. 106, AND SANFORD V. COMMISSIONER, 308 U.S. 39.  IN THESE
DECISIONS, AND IN BURNET V. GUGGENHEIM, 288 U.S. 280, WE HAVE
CONSIDERED THE PROBLEMS RAISED HERE IN SOME DETAIL, AND IT WILL
THEREFORE BE UNNECESSARY TO MAKE ANY ELABORATE RE-SURVEY OF THE LAW. 

THREE INTERESTS ARE INVOLVED HERE:  THE LIFE ESTATE, THE REMAINDER,
AND THE REVERSION.  THE TAXPAYER CONCEDES THAT THE LIFE ESTATE IS
SUBJECT TO THE GIFT TAX.  THE GOVERNMENT CONCEDES THAT THE RIGHT OF
REVERSION TO THE DONOR IN CASE HE OUTLIVES HIS WIFE IS AN INTEREST
HAVING VALUE WHICH CAN BE CALCULATED BY AN ACTUARIAL DEVICE, AND THAT
IT IS IMMUNE FROM THE GIFT TAX.  THE CONTROVERSY, THEN, REDUCES ITSELF
TO THE QUESTION OF THE TAXABILITY OF THE REMAINDER. 

THE TAXPAYER'S PRINCIPAL ARGUMENT HERE IS THAT UNDER OUR DECISION IN
THE HALLOCK CASE, THE VALUE OF THE REMAINDER WILL BE INCLUDED IN THE
GRANTOR'S GROSS ESTATE FOR ESTATE TAX PURPOSES; AND THAT IN THE SANFORD
CASE WE INTIMATED A GENERAL POLICY AGAINST ALLOWING THE SAME PROPERTY
TO BE TAXED BOTH AS AN ESTATE AND AS A GIFT. 

THIS VIEW, WE THINK, MISUNDERSTANDS OUR POSITION IN THE SANFORD
CASE.  AS WE SAID THERE, THE GIFT AND ESTATE TAX LAWS ARE CLOSELY
RELATED AND THE GIFT TAX SERVES TO SUPPLEMENT THE ESTATE TAX.  FN1  WE
SAID THAT THE TAXES ARE NOT "ALWAYS MUTUALLY EXCLUSIVE," AND CALLED
ATTENTION TO SEC. 322 OF THE 1924 ACT THERE INVOLVED (REENACTED WITH
AMENDMENTS IN SEC. 801 OF THE 1932 ACT) WHICH CHARTS THE COURSE FOR
GRANTING CREDITS ON ESTATE TAXES BY REASON OF PREVIOUS PAYMENT OF GIFT
TAXES ON THE SAME PROPERTY.  THE SCOPE OF THAT PROVISION WE NEED NOT
NOW DETERMINE.  IT IS SUFFICIENT TO NOTE HERE THAT CONGRESS PLAINLY
POINTED OUT THAT "SOME" OF THE "TOTAL GIFTS SUBJECT TO GIFT TAXES  ...
MAY BE INCLUDED FOR ESTATE TAX PURPOSES AND SOME NOT."  HOUSE REPORT
NO. 708, 72D CONG., 1ST SESS., P. 45.  UNDER THE STATUTE THE GIFT TAX
AMOUNTS IN SOME INSTANCES TO A SECURITY, A FORM OF DOWN-PAYMENT ON THE
ESTATE TAX WHICH SECURES THE EVENTUAL PAYMENT OF THE LATTER; IT IS IN
NO SENSE DOUBLE TAXATION AS THE TAXPAYER SUGGESTS. 

WE CONCLUDE THAT UNDER THE PRESENT STATUTE, CONGRESS HAS PROVIDED AS
ITS PLAN FOR INTEGRATING THE ESTATE AND GIFT TAXES THIS SYSTEM OF
SECURED PAYMENT ON GIFTS WHICH WILL LATER BE SUBJECT TO THE ESTATE
TAX.  FN2 

UNENCUMBERED BY ANY NOTION OF POLICY AGAINST SUBJECTING THIS
TRANSACTION TO BOTH ESTATE AND GIFT TAXES, WE TURN TO THE BASIC
QUESTION OF WHETHER THERE WAS A GIFT OF THE REMAINDER.  THE GOVERNMENT
ARGUES THAT FOR GIFT TAX PURPOSES THE TAXPAYER HAS ABANDONED CONTROL OF
THE REMAINDER AND THAT IT IS THEREFORE TAXABLE, WHILE THE TAXPAYER
CONTENDS THAT NO REALISTIC VALUE CAN BE PLACED ON THE CONTINGENT
REMAINDER AND THAT IT THEREFORE SHOULD NOT BE CLASSED AS A GIFT. 

WE CANNOT ACCEPT ANY SUGGESTION THAT THE COMPLEXITY OF A PROPERTY
INTEREST CREATED BY A TRUST CAN SERVE TO DEFEAT A TAX.  FOR MANY YEARS
CONGRESS HAS SOUGHT VIGOROUSLY TO CLOSE TAX LOOPHOLES AGAINST INGENIOUS
TRUST INSTRUMENTS.  FN3  EVEN THOUGH THESE CONCEPTS OF PROPERTY AND
VALUE MAY BE SLIPPERY AND ELUSIVE THEY CAN NOT ESCAPE TAXATION SO LONG
AS THEY ARE USED IN THE WORLD OF BUSINESS.  THE LANGUAGE OF THE GIFT
TAX STATUTE, "PROPERTY  ...  REAL OR PERSONAL, TANGIBLE OR INTANGIBLE,"
IS BROAD ENOUGH TO INCLUDE PROPERTY, HOWEVER CONCEPTUAL OR CONTINGENT. 
AND LEST THERE BE ANY DOUBT AS TO THE AMPLITUDE OF THEIR PURPOSE, THE
SENATE AND HOUSE COMMITTEES, REPORTING THE BILL, SPELLED OUT THEIR
MEANING AS FOLLOWS: 

"THE TERMS 'PROPERTY,' 'TRANSFER,' 'GIFT,' AND 'INDIRECTLY' (IN SEC.
501) ARE USED IN THE BROADEST AND MOST COMPREHENSIVE SENSE; THE TERM
'PROPERTY' REACHING EVERY SPECIES OF RIGHT OR INTEREST PROTECTED BY LAW
AND HAVING AN EXCHANGEABLE VALUE."  FN4 

THE TREASURY REGULATIONS, WHICH WE THINK CARRY OUT THE ACT'S PURPOSE,
MADE SPECIFIC PROVISIONS FOR APPLICATION OF THE TAX TO, AND
DETERMINATION OF THE VALUE OF, "A REMAINDER  ...  SUBJECT TO AN
OUTSTANDING LIFE ESTATE."  FN5 

THE ESSENCE OF A GIFT BY TRUST IS THE ABANDONMENT OF CONTROL OVER THE
PROPERTY PUT IN TRUST.  THE SEPARABLE INTERESTS TRANSFERRED ARE NOT
GIFTS TO THE EXTENT THAT POWER REMAINS TO REVOKE THE TRUST OR RECAPTURE
THE PROPERTY REPRESENTED BY ANY OF THEM, BURNET V. GUGGENHEIM, SUPRA,
OR TO MODIFY THE TERMS OF THE ARRANGEMENT SO AS TO MAKE OTHER
DISPOSITION OF THE PROPERTY, SANFORD V. COMMISSIONER, SUPRA.  IN THE
SANFORD CASE THE GRANTOR COULD, BY MODIFICATION OF THE TRUST,
EXTINGUISH THE DONEE'S INTEREST AT ANY INSTANT HE CHOSE.  IN CASES SUCH
AS THIS, WHERE THE GRANTOR HAS NEITHER THE FORM NOR SUBSTANCE OF
CONTROL AND NEVER WILL HAVE UNLESS HE OUTLIVES HIS WIFE, WE MUST
CONCLUDE THAT HE HAS LOST ALL "ECONOMIC CONTROL" AND THAT THE GIFT IS
COMPLETE EXCEPT FOR THE VALUE OF HIS REVERSIONARY INTEREST.  FN6 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED WITH LEAVE
TO THE PETITIONER TO APPLY FOR MODIFICATION OF ITS MANDATE IN ORDER
THAT THE VALUE OF THE PETITIONER'S REVERSIONARY INTEREST MAY BE
DETERMINED AND EXCLUDED.  IT IS SO ORDERED. 

FN1  THE GIFT TAX WAS PASSED NOT ONLY TO PREVENT ESTATE TAX
AVOIDANCE, BUT ALSO TO PREVENT INCOME TAX AVOIDANCE THROUGH REDUCING
YEARLY INCOME AND THEREBY ESCAPING THE EFFECT OF PROGRESSIVE SURTAX
RATES.  HOUSE REPORT NO. 708, 72D CONG., 1ST SESS., P. 28; BRANDEIS,
J., DISSENTING IN UNTERMYER V. ANDERSON, 276 U.S. 440, 450; STONE, J.,
DISSENTING IN HEINER V. DONNAN, 285 U.S. 312, 333. 

FN2  IT HAS BEEN SUGGESTED THAT THE CONGRESSIONAL PLAN RELATING THE
ESTATE AND GIFT TAXES MAY STILL BE INCOMPLETE.  SEE E.G., GRISWOLD, A
PLAN FOR THE COORDINATION OF THE INCOME, ESTATE, AND GIFT TAX
PROVISIONS ETC., 56 HARV. L. REV. 337; MAGILL, THE FEDERAL GIFT TAX, 40
COL. L. REV. 773, 792; KAUPER, THE REVENUE ACT OF 1942:  ESTATE AND
GIFT TAX AMENDMENTS, 41 MICH. L. REV. 369, 388; AND SEE COMMISSIONER V.
PROUTY, 115 F.2D 331, 337; HIGGINS V. COMMISSIONER, 129 F.2D 237, 239. 

FN3  2 PAUL, FEDERAL ESTATE & GIFT TAXATION, CHAP. 17; SCHUYLER,
POWERS OF APPOINTMENT AND ESPECIALLY SPECIAL POWERS:  THE ESTATE
TAXPAYER'S LAST STAND, 33 ILL. L. REV. 771; LEAPHART, THE USE OF THE
TRUST TO ESCAPE THE IMPOSITION OF FEDERAL INCOME & ESTATE TAXES, 15
CORN.  L.Q. 587. 

FN4  SENATE REPORT NO. 665, 72D CONG., 1ST SESS., P. 39; HOUSE REPORT
NO. 708, SUPRA, P. 27. 

FN5  TREAS. REGULATIONS 79(1936 ED.), ARTS. 2, 3, 17, 19.  CF.
COMMISSIONER V. MARSHALL, 125 F.2D 943, 945. 

FN6  THE CONCLUSION REACHED HERE IS IN ACCORD WITH THAT OF THE
SEVERAL CIRCUIT COURTS OF APPEALS WHICH HAVE CONSIDERED THE PROBLEM:
COMMISSIONER V. MARSHALL, 125 F.2D 943(C.C.A.2D); COMMISSIONER V.
BECK'S ESTATE, 129 F.2D 243(C.C.A.2D); COMMISSIONER V. MCLEAN, 127 F.2D
942(C.C.A.5TH); HELVERING V. ROBINETTE, 129 F.2D 832(C.C.A. 3D),
AFFIRMED, POST, P. 184; HUGHES V. COMMISSIONER, 104 F.2D
144(C.C.A.9TH); AND SEE THE CASES CITED IN NOTE 2, SUPRA. 

MR. JUSTICE ROBERTS: 

I DISSENT.  I AM OF OPINION THAT, EXCEPT FOR THE LIFE ESTATE IN THE
WIFE, THE GIFT QUA THE DONOR WAS INCOMPLETE AND NOT WITHIN THE SWEEP OF
SECS. 501 AND 506.  A CONTRARY CONCLUSION MIGHT WELL BE REACHED WERE IT
NOT FOR HELVERING V. HALLOCK, 309 U.S. 106.  BUT THE DECISIONS IN
BURNET V. GUGGENHEIM, 288 U.S. 280, AND SANFORD V. COMMISSIONER, 308
U.S. 39, TO WHICH THE COURT ADHERES, REQUIRE A REVERSAL IN VIEW OF THE
RULING IN THE HALLOCK CASE. 

THE FIRST OF THE TWO CASES RULED THAT A TRANSFER IN TRUST, WHEREBY
THE GRANTOR RESERVED A POWER OF REVOCATION, WAS NOT SUBJECT TO A GIFT
TAX, BUT BECAME SO UPON THE RENUNCIATION OF THE POWER.  THE SECOND HELD
THAT WHERE THE GRANTOR RESERVED A POWER TO CHANGE THE BENEFICIARIES,
BUT NONE TO REVOKE OR TO MAKE HIMSELF A BENEFICIARY, THE TRANSFER WAS
INCOMPLETE AND NOT SUBJECT TO GIFT TAX.  AT THE SAME TERM, IN PORTER V.
COMMISSIONER, 288 U.S. 436, THE COURT HELD THAT WHERE A DECEDENT HAD
GIVEN PROPERTY INTER VIVOS IN TRUST, RESERVING A POWER TO CHANGE THE
BENEFICIARIES BUT NO POWER TO REVOKE OR REVEST THE PROPERTY IN HIMSELF,
THE TRANSFER WAS INCOMPLETE UNTIL THE TERMINATION OF THE RESERVED POWER
BY THE DONOR'S DEATH AND HENCE THE CORPUS WAS SUBJECT TO THE ESTATE
TAX. 

WHEN THESE CASES WERE DECIDED, THE LAW, AS ANNOUNCED BY THIS COURT,
WAS THAT WHERE, IN A COMPLETE AND FINAL TRANSFER INTER VIVOS, A GRANTOR
PROVIDED THAT, IN A SPECIFIED CONTINGENCY, THE CORPUS SHOULD PASS TO
HIM, IF LIVING, BUT, IF HE SHOULD BE DEAD, THEN TO OTHERS, THE GIFT WAS
COMPLETE WHEN MADE, HE RETAINED NOTHING WHICH PASSED FROM HIM AT HIS
DEATH, PRIOR TO THE HAPPENING OF THE CONTINGENCY, AND THAT NO PART OF
THE PROPERTY GIVEN WAS INCLUDIBLE IN HIS GROSS ESTATE FOR ESTATE TAX. 
MCCORMICK V. BURNET, 283 U.S. 784; HELVERING V. ST. LOUIS UNION TRUST
CO., 296 U.S. 39; BECKER V. ST. LOUIS UNION TRUST CO., 296 U.S. 48.  SO
LONG AS THIS WAS THE LAW THE TRANSFER MIGHT PROPERLY BE THE SUBJECT OF
A GIFT TAX FOR THE GIFT WAS, AS RESPECTS THE DONOR, COMPLETE WHEN
MADE. 

IN 1940 THESE DECISIONS WERE OVERRULED AND IT WAS HELD THAT SUCH A
TRANSFER WAS SO INCOMPLETE WHEN MADE, AND THE GRANTOR RETAINED SUCH AN
INTEREST, THAT THE CESSATION OF THAT INTEREST AT DEATH FURNISHED THE
OCCASION FOR IMPOSING AN ESTATE TAX.  THUS THE SITUATION HERE PRESENTED
WAS PLACED IN THE SAME CATEGORY AS THOSE WHERE THE GRANTOR HAD RESERVED
A POWER TO REVOKE OR A POWER TO CHANGE BENEFICIARIES.  BY ANALOGY TO
THE GUGGENHEIM AND SANFORD CASES, I SUPPOSE THE GIFT WOULD HAVE BECOME
COMPLETE IF THE DONOR HAD, IN HIS LIFE, RELINQUISHED OR CONVEYED THE
CONTINGENT ESTATE RESERVED TO HIM. 

IN THE LIGHT OF THIS HISTORY, THE SANFORD CASE REQUIRES A HOLDING
THAT THE GIFTS IN REMAINDER, AFTER THE LIFE ESTATE, CREATE NO GIFT TAX
LIABILITY.  THE REASONING OF THAT DECISION, THE AUTHORITIES, AND THE
LEGISLATIVE HISTORY RELIED UPON, ARE ALL AT WAR WITH THE RESULT IN THIS
CASE.  THERE IS NO NEED TO QUOTE WHAT WAS THERE SAID.  A READING OF THE
DECISION WILL DEMONSTRATE THAT, IF THE PRINCIPLES THERE ANNOUNCED ARE
HERE OBSERVED, THE GIFTS IN QUESTION ARE INCOMPLETE AND CANNOT BE THE
SUBJECT OF THE GIFT TAX. 

IT WILL NOT SQUARE WITH LOGIC TO SAY THAT WHERE THE DONOR RESERVES
THE RIGHT TO CHANGE BENEFICIARIES, AND SO DELAYS COMPLETION OF THE GIFT
UNTIL HIS DEATH OR PRIOR RELINQUISHMENT OF THE RIGHT, THE GIFT IS
INCOMPLETE, BUT WHERE HE RESERVES A CONTINGENT INTEREST TO HIMSELF THE
REVERSE IS TRUE, - PARTICULARLY SO, IF THE CRITERION OF ESTATE TAX
LIABILITY IS IMPORTANT TO THE DECISION OF THE QUESTION, AS THE SANFORD
CASE AFFIRMS. 

THE QUESTION IS NOT WHETHER A GIFT WHICH INCLUDES VESTED AND
CONTINGENT FUTURE INTERESTS IN OTHERS THAN THE DONOR IS TAXABLE AS AN
ENTIRETY WHEN MADE, BUT WHETHER A RESERVATION OF SUCH AN INTEREST IN
THE DONOR NEGATIVES A COMPLETION OF THE GIFT UNTIL SUCH TIME AS THAT
INTEREST IS RELINQUISHED. 

ALL THAT IS SAID IN THE SANFORD CASE ABOUT THE DIFFICULTIES OF
ADMINISTRATION AND PROBABLE INEQUITIES OF A CONTRARY DECISION THERE,
APPLIES HERE WITH GREATER FORCE.  INDEED A SYSTEM OF TAXATION WHICH
REQUIRES VALUATION OF THE DONOR'S RETAINED INTEREST, IN THE LIGHT OF
THE CONTINGENCIES INVOLVED, AND CALCULATION OF THE VALUE OF THE
SUBSEQUENT REMAINDERS BY RESORT TO HIGHER MATHEMATICS BEYOND THE KEN OF
THE TAXPAYER, EXHIBITS THE ARTIFICIALITY OF THE GOVERNMENT'S
APPLICATION OF THE ACT.  THIS IS WELL ILLUSTRATED IN THE COMPANION
CASES OF ROBINETTE AND PAUMGARTEN, INFRA, P. 184.  SUCH RESULTS ARGUE
STRONGLY AGAINST THE CONSTRUCTION WHICH THE COURT ADOPTS. 
..END :



ROBINETTE V. HELVERING, 318 U.S. 184 


NO. 499.  ARGUED JANUARY 14, 1943.  - DECIDED FEBRUARY 15, 1943.  - 129
F.2D 832, AFFIRMED. 


A WOMAN, CONTEMPLATING MARRIAGE, CREATED AN IRREVOCABLE TRUST OF
PROPERTY, UNDER WHICH SHE WAS TO RECEIVE THE INCOME DURING HER LIFE;
UPON HER DEATH, HER MOTHER AND STEPFATHER WERE TO HAVE A LIFE INTEREST
IN THE INCOME; THE REMAINDER WAS TO GO TO HER ISSUE UPON THEIR REACHING
THE AGE OF 21, AND, IN DEFAULT OF ISSUE, THEN TO WHOMEVER THE LAST
SURVIVING LIFE TENANT SHOULD APPOINT BY WILL.  HER MOTHER CREATED A
SIMILAR TRUST, RESERVING A LIFE INTEREST TO HERSELF AND HER HUSBAND,
WITH A SECOND LIFE INTEREST TO THE DAUGHTER, AND REMAINDER TO THE
DAUGHTER'S ISSUE.  CONCEDEDLY, THE SECONDARY LIFE INTERESTS WERE
SUBJECT TO THE FEDERAL GIFT TAX.  HELD: 

1.  THE REMAINDERS (AFTER THE LIFE INTERESTS) WERE TAXABLE GIFTS
UNDER THE REVENUE ACT OF 1932.  SMITH V. SHAUGHNESSY, ANTE, P. 176 P.
186. 

2.  THE FACT THAT ON THE DATE OF THE CREATION OF THE TRUST THERE WERE
IN EXISTENCE NO ELIGIBLE REMAINDERMEN DOES NOT DEFEAT THE GIFT TAX.  P.
186. 

3.  THE TRANSFERS IN THIS CASE CAN NOT BE REGARDED AS SUPPORTED BY
"FULL CONSIDERATION IN MONEY OR MONEY'S WORTH" WITHIN THE MEANING OF
SEC. 503 OF THE ACT; NOR AS "IN THE ORDINARY COURSE OF BUSINESS" WITHIN
THE MEANING OF ART. 8 OF TREASURY REGULATIONS 79.  P. 187. 

4.  THE VALUE OF THE REVERSIONARY INTERESTS OF THE GRANTORS IN THIS
CASE, BEING INCAPABLE OF ASCERTAINMENT BY RECOGNIZED ACTUARIAL METHODS,
IS NOT DEDUCTIBLE IN COMPUTING THE GIFT TAX.  SMITH V. SHAUGHNESSY,
ANTE, P. 176, DISTINGUISHED.  P. 188. 

ROBINETTE V. HELVERING, COMMISSIONER OF INTERNAL REVENUE.* 

*TOGETHER WITH NO. 500, PAUMGARTEN V. HELVERING, COMMISSIONER OF
INTERNAL REVENUE, ALSO ON WRIT OF CERTIORARI, 317 U.S. 620, TO THE
CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 317 U.S. 620, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 44 B.T.A. 701, WHICH REVERSED IN TWO CASES,
CONSOLIDATED FOR HEARING BEFORE THE BOARD AND IN THE COURT BELOW,
DETERMINATIONS OF DEFICIENCIES IN FEDERAL GIFT TAXES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS ANOTHER CASE  FN1  UNDER THE GIFT TAX PROVISIONS OF THE
REVENUE ACT OF 1932, SECS. 501, 506, WHICH, WHILE PRESENTING CERTAIN
VARIANTS ON THE QUESTIONS DECIDED IN SMITH V. SHAUGHNESSY, ANTE, P.
176, IS IN OTHER RESPECTS ANALOGOUS TO AND CONTROLLED BY THAT CASE. 

IN 1936, THE PETITIONER, ELISE PAUMGARTEN (NEE ROBINSON), WAS THIRTY
YEARS OF AGE AND WAS CONTEMPLATING MARRIAGE; HER MOTHER, META BIDDLE
ROBINETTE, WAS 55 YEARS OF AGE AND WAS MARRIED TO THE STEPFATHER OF
MISS ROBINSON.  THE THREE, DAUGHTER, MOTHER AND STEPFATHER, HAD A
CONFERENCE WITH THE FAMILY ATTORNEY, WITH A VIEW TO KEEPING THE
DAUGHTER'S FORTUNE WITHIN THE FAMILY.  AN AGREEMENT WAS MADE THAT THE
DAUGHTER SHOULD PLACE HER PROPERTY IN TRUST, RECEIVING A LIFE ESTATE IN
THE INCOME FOR HERSELF, AND CREATING A SECOND LIFE ESTATE IN THE INCOME
FOR HER MOTHER AND STEPFATHER IF SHE SHOULD PREDECEASE THEM.  THE
REMAINDER WAS TO GO TO HER ISSUE UPON THEIR REACHING THE AGE OF 21,
WITH THE FURTHER ARRANGEMENT FOR THE DISTRIBUTION OF THE PROPERTY BY
THE WILL OF THE LAST SURVIVING LIFE TENANT IF NO ISSUE EXISTED.  HER
MOTHER CREATED A SIMILAR TRUST, RESERVING A LIFE ESTATE TO HERSELF AND
HER HUSBAND AND A SECOND OR CONTINGENT LIFE ESTATE TO HER DAUGHTER. 
SHE ALSO ASSIGNED THE REMAINDER TO THE DAUGHTER'S ISSUE.  THE
STEPFATHER MADE A SIMILAR ARRANGEMENT BY WILL.  THE MOTHER PLACED
$193,000 WORTH OF PROPERTY IN THE TRUST SHE CREATED, AND THE DAUGHTER
DID LIKEWISE WITH $680,000 WORTH OF PROPERTY. 

THE PARTIES AGREE THAT THE SECONDARY LIFE ESTATES IN THE INCOME ARE
TAXABLE GIFTS, AND THIS TAX HAS BEEN PAID.  THE ISSUE IS WHETHER THERE
HAS ALSO BEEN A TAXABLE GIFT OF THE REMAINDERS OF THE TWO TRUSTS.  THE
COMMISSIONER DETERMINED THAT THE REMAINDERS WERE TAXABLE, THE BOARD OF
TAX APPEALS REVERSED THE COMMISSIONER, AND THE CIRCUIT COURT OF APPEALS
REVERSED THE BOARD OF TAX APPEALS.  129 F.2D 832. 

THE PETITIONERS ARGUE THAT THE GRANTORS HAVE NOT RELINQUISHED
ECONOMIC CONTROL AND THAT THIS TRANSACTION SHOULD NOT BE SUBJECT BOTH
TO THE ESTATE AND TO THE GIFT TAX.  WHAT WE HAVE SAID IN THE SMITH CASE
DETERMINES THESE QUESTIONS ADVERSELY TO THE PETITIONERS.  HOWEVER, THE
PETITIONERS EMPHASIZE CERTAIN OTHER SPECIAL CONSIDERATIONS. 

FIRST.  PETITIONERS ARGUE THAT SINCE THERE WERE NO DONEES IN
EXISTENCE ON THE DATE OF THE CREATION OF THE TRUST WHO COULD ACCEPT THE
REMAINDERS, THE TRANSFERS CANNOT BE COMPLETED GIFTS.  THE GIFT TAX LAW
ITSELF HAS NO SUCH QUALIFICATIONS.  IT IMPOSES A TAX "UPON THE TRANSFER
...  OF PROPERTY BY GIFT."  AND TREASURY REGULATIONS 79, ART. 3,
PROVIDE THAT "THE TAX IS A PRIMARY AND PERSONAL LIABILITY OF THE DONOR,
IS AN EXCISE UPON HIS ACT OF MAKING THE TRANSFER, IS MEASURED BY THE
VALUE OF THE PROPERTY PASSING FROM THE DONOR, AND ATTACHES REGARDLESS
OF THE FACT THAT THE IDENTITY OF THE DONEE MAY NOT THEN BE KNOWN OR
ASCERTAINABLE."  WE ARE ASKED TO STRIKE DOWN THIS REGULATION AS BEING
INVALID BECAUSE INCONSISTENT WITH THE STATUTE.  WE DO NOT THINK IT IS.
AS POINTED OUT IN THE SMITH CASE, THE EFFORT OF CONGRESS WAS TO REACH
EVERY KIND AND TYPE OF TRANSFER BY GIFT.  THE STATUTE "IS AIMED AT
TRANSFERS OF THE TITLE THAT HAVE THE QUALITY OF A GIFT."  BURNET V.
GUGGENHEIM, 288 U.S. 280, 286.  THE INSTRUMENTS CREATED BY THESE
GRANTORS PURPORTED ON THEIR FACE WHOLLY TO DIVEST THE GRANTORS OF ALL
DOMINION OVER THE PROPERTY; IT COULD NOT BE RETURNED TO THEM EXCEPT
BECAUSE OF CONTINGENCIES BEYOND THEIR CONTROL.  GIFTS OF FUTURE
INTERESTS ARE TAXABLE UNDER THE ACT, SEC. 504(B), AND THEY DO NOT LOSE
THIS QUALITY MERELY BECAUSE OF THE INDEFINITENESS OF THE EVENTUAL
RECIPIENT.  THE PETITIONERS PURPORTED TO GIVE THE PROPERTY TO SOMEONE
WHOSE IDENTITY COULD BE LATER ASCERTAINED AND THIS WAS ENOUGH. 

SECOND.  IT IS ARGUED THAT THE TRANSFERS WERE NOT GIFTS BUT WERE
SUPPORTED BY "FULL CONSIDERATION IN MONEY OR MONEY'S WORTH."  FN2  THIS
CONTENTION RESTS ON THE ASSUMPTION THAT AN AGREEMENT BETWEEN THE
PARTIES TO EXECUTE THESE TRUSTS WAS SUFFICIENT CONSIDERATION TO SUPPORT
THE TRANSFERS.  WE NEED NOT CONSIDER OR ATTEMPT TO DECIDE WHAT WERE THE
RIGHTS OF THESE PARTIES AS AMONG THEMSELVES.  PETITIONERS THINK THAT
THEIR TRANSACTION COMES WITHIN THE PERMISSIVE SCOPE OF ART. 8 OF
REGULATIONS 79(1936 EDITION) WHICH PROVIDES THAT "A SALE, EXCHANGE, OR
OTHER TRANSFER OF PROPERTY MADE IN THE ORDINARY COURSE OF BUSINESS (A
TRANSACTION WHICH IS BONA FIDE AT ARM'S LENGTH, AND FREE FROM ANY
DONATIVE INTENT) WILL BE CONSIDERED AS MADE FOR AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH."  THE BASIC PREMISE OF
PETITIONER'S ARGUMENT IS THAT THE MOVING IMPULSE FOR THE TRUST
TRANSACTION WAS A DESIRE TO PASS THE FAMILY FORTUNE ON TO OTHERS.  IT
IS IMPOSSIBLE TO CONCEIVE OF THIS AS EVEN APPROACHING A TRANSACTION "IN
THE ORDINARY COURSE OF BUSINESS." 

THIRD.  THE LAST ARGUMENT IS THAT "IN ANY EVENT, IN COMPUTING THE
VALUE OF THE REMAINDERS HEREIN, ALLOWANCE SHOULD BE MADE FOR THE VALUE
OF THE GRANTOR'S REVERSIONARY INTEREST."  HERE, UNLIKE THE SMITH CASE,
THE GOVERNMENT DOES NOT CONCEDE THAT THE REVERSIONARY INTEREST OF THE
PETITIONER SHOULD BE DEDUCTED FROM THE TOTAL VALUE.  IN THE SMITH CASE,
THE GRANTOR HAD A REVERSIONARY INTEREST WHICH DEPENDED ONLY UPON HIS
SURVIVING HIS WIFE, AND THE GOVERNMENT CONCEDED THAT THE VALUE WAS
THEREFORE CAPABLE OF ASCERTAINMENT BY RECOGNIZED ACTUARIAL METHODS.  IN
THIS CASE, HOWEVER, THE REVERSIONARY INTEREST OF THE GRANTOR DEPENDS
NOT ALONE UPON THE POSSIBILITY OF SURVIVORSHIP BUT ALSO UPON THE DEATH
OF THE DAUGHTER WITHOUT ISSUE WHO SHOULD REACH THE AGE OF 21 YEARS. 
THE PETITIONER DOES NOT REFER US TO ANY RECOGNIZED METHOD BY WHICH IT
WOULD BE POSSIBLE TO DETERMINE THE VALUE OF SUCH A CONTINGENT
REVERSIONARY REMAINDER.  IT MAY BE TRUE, AS THE PETITIONERS ARGUE, THAT
TRUST INSTRUMENTS SUCH AS THESE BEFORE US FREQUENTLY CREATE "A COMPLEX
AGGREGATE OF RIGHTS, PRIVILEGES, POWERS AND IMMUNITIES AND THAT IN
CERTAIN INSTANCES ALL THESE RIGHTS, PRIVILEGES, POWERS AND IMMUNITIES
ARE NOT TRANSFERRED OR RELEASED SIMULTANEOUSLY."  BUT BEFORE ONE WHO
GIVES HIS PROPERTY AWAY BY THIS METHOD IS ENTITLED TO DEDUCTION FROM
HIS GIFT TAX ON THE BASIS THAT HE HAD RETAINED SOME OF THESE COMPLEX
STRANDS IT IS NECESSARY THAT HE AT LEAST ESTABLISH THE POSSIBILITY OF
APPROXIMATING WHAT VALUE HE HOLDS.  FACTORS TO BE CONSIDERED IN FIXING
THE VALUE OF THIS CONTINGENT RESERVATION AS OF THE DATE OF THE GIFT
WOULD HAVE INCLUDED CONSIDERATION OF WHETHER OR NOT THE DAUGHTER WOULD
MARRY; WHETHER SHE WOULD HAVE CHILDREN; WHETHER THEY WOULD REACH THE
AGE OF 21; ETC.  ACTUARIAL SCIENCE MAY HAVE MADE GREAT STRIDES IN
APPRAISING THE VALUE OF THAT WHICH SEEMS TO BE UNAPPRAISABLE, BUT WE
HAVE NO REASON TO BELIEVE FROM THIS RECORD THAT EVEN THE ACTUARIAL ART
COULD DO MORE THAN GUESS AT THE VALUE HERE IN QUESTION.  HUMES V.
UNITED STATES, 276 U.S. 487, 494. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  THESE TWO MATTERS HAVE BEEN CONSIDERED AS ONE CASE BELOW AND
WILL BE SO TREATED HERE. 

FN2  SECTION 503 OF THE 1932 ACT, 47 STAT. 169, PROVIDES THAT "WHERE
PROPERTY IS TRANSFERRED FOR LESS THAN AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH, THEN THE AMOUNT BY WHICH THE
VALUE OF THE PROPERTY EXCEEDED THE VALUE OF THE CONSIDERATION SHALL,
FOR THE PURPOSE OF THE TAX IMPOSED BY THIS TITLE, BE DEEMED A GIFT,
..."  THIS LANGUAGE IS INTERPRETED IN THE HOUSE AND SENATE COMMITTEE
REPORTS AS FOLLOWS:  "THE TAX IS DESIGNED TO REACH ALL TRANSFERS TO THE
EXTENT THAT THEY ARE DONATIVE, AND TO EXCLUDE ANY CONSIDERATION NOT
REDUCIBLE TO MONEY OR MONEY'S WORTH."  HOUSE REPORT NO. 708, 72D CONG.,
1ST SESS., P. 29; SENATE REPORT NO. 665, 72D CONG., 1ST SESS., P. 41. 

MR. JUSTICE ROBERTS DISSENTS FOR THE REASONS SET FORTH IN HIS OPINION
IN SMITH V. SHAUGHNESSY, ANTE, P. 176. 
..END :








JOHNSON V. UNITED STATES, 318 U.S. 189 


NO. 273.  ARGUED JANUARY 15, 1943.  - DECIDED FEBRUARY 15, 1943.  - 129
F.2D 954, AFFIRMED. 


1.  WHERE A DEFENDANT IN A CRIMINAL PROSECUTION IN A FEDERAL COURT
VOLUNTARILY TESTIFIES, AND UPON CROSS-EXAMINATION ASSERTS A CLAIM OF
PRIVILEGE AGAINST SELF-INCRIMINATION WHICH THE COURT UNQUALIFIEDLY
GRANTS, ALBEIT MISTAKENLY, IT IS ERROR FOR THE COURT THEREAFTER TO
PERMIT THE PROSECUTOR TO COMMENT UPON THE CLAIM OF PRIVILEGE AND TO
PERMIT THE JURY TO DRAW ANY INFERENCE THEREFROM, IF, AS HERE, IT CAN BE
SAID THAT THE DEFENDANT'S CHOICE OF CLAIMING OR WAIVING THE PRIVILEGE
WOULD HAVE BEEN MATERIALLY AFFECTED HAD HE KNOWN THAT THE CLAIM THOUGH
GRANTED WOULD BE USED TO HIS PREJUDICE.  P. 196. 

2.  OBJECTION TO THE PROSECUTOR'S COMMENT ON AN ALLOWED CLAIM OF
PRIVILEGE IN THIS CASE WAS EXPRESSLY WAIVED BY THE DEFENDANT'S
WITHDRAWING HIS EXCEPTION TO IT AND ACQUIESCING IN THE COURT'S
TREATMENT OF THE MATTER, AND A NEW TRIAL IS NOT GRANTED.  P. 199. 

3.  RULINGS OF THE TRIAL COURT EXCLUDING THE DEFENDANT FROM THE COURT
ROOM WHILE COUNSEL WERE ARGUING THE QUESTION OF THE PROPRIETY OF A LINE
OF CROSS-EXAMINATION, AND REQUIRING THAT HE RESUME THE STAND WITHOUT
CONFERRING WITH HIS COUNSEL CONCERNING A CLAIM OF PRIVILEGE, TO WHICH
RULINGS NO EXCEPTIONS WERE TAKEN, AND WHICH DID NOT RESULT IN A LOSS OF
THE PRIVILEGE, HELD, EVEN IF ASSUMED TO BE ERRONEOUS, NOT PREJUDICIAL. 
P. 201. 

JOHNSON V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 317 U.S. 610, TO REVIEW THE AFFIRMANCE OF A CONVICTION OF
WILFULLY ATTEMPTING TO DEFEAT AND EVADE FEDERAL INCOME TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF WILFULLY ATTEMPTING TO DEFEAT AND EVADE
HIS FEDERAL INCOME TAXES FOR THE YEARS 1936 AND 1937.  HE WAS ACQUITTED
FOR 1935.  PETITIONER WAS A POLITICAL LEADER IN ATLANTIC CITY AND
ATLANTIC COUNTY, NEW JERSEY.  THE PROSECUTION'S THEORY WAS THAT HE HAD
RECEIVED LARGE SUMS OF MONEY FROM THOSE CONDUCTING THE NUMBERS GAME FOR
PROTECTION AGAINST POLICE INTERFERENCE AND HAD NOT REPORTED THOSE SUMS
IN HIS INCOME TAX RETURNS FOR 1935, 1936, AND 1937.  THE DEFENSE WAS
THAT HIS FAILURE TO RETURN ALL THE INCOME HE HAD RECEIVED RESULTED FROM
THE MISTAKEN BUT SINCERE BELIEF THAT HE WAS BOUND TO RETURN ONLY THE
NET BALANCE REMAINING AFTER DEDUCTING AMOUNTS EXPENDED FOR POLITICAL
PURPOSES.  THE EVIDENCE WAS THAT ONE WELOFF AND ONE TOWHEY, ACTING
ALTERNATELY, DELIVERED TO PETITIONER ON BEHALF OF THE NUMBERS SYNDICATE
$1,200 A WEEK FROM JULY 1935 TO NOVEMBER 1937.  ABOUT NOVEMBER 1, 1937,
WELOFF AND TOWHEY WERE DISPLACED BY ONE JACK SOUTHERN TO WHOM THE
SYNDICATE DELIVERED $1,200 A WEEK.  NEITHER THE PROSECUTION NOR THE
DEFENSE WOULD SPONSOR SOUTHERN'S TESTIMONY.  AT THE REQUEST OF THE
PROSECUTION THE COURT CALLED SOUTHERN AS A WITNESS.  HE TESTIFIED THAT
DURING NOVEMBER AND DECEMBER, 1937, HE DELIVERED THE $1,200 A WEEK TO
AN INSPECTOR OF POLICE NAMED FERRETTI, WHO WAS DEAD AT THE TIME OF THE
TRIAL.  HE DENIED THAT HE EVER MADE ANY WEEKLY PAYMENTS TO PETITIONER. 
NO EVIDENCE WAS ADDUCED THAT PETITIONER RECEIVED ANY SUMS FROM THE
SYNDICATE DURING NOVEMBER OR DECEMBER, 1937.  PETITIONER TOOK THE STAND
AND ON DIRECT EXAMINATION ADMITTED THAT HE HAD RECEIVED THE WEEKLY
PAYMENTS FROM WELOFF AND TOWHEY UP TO NOVEMBER, 1937.  FOR 1937 THESE
ADMITTED PAYMENTS TOTALLED $50,400.  PETITIONER ACCOUNTED FOR THIS SUM
BY STATING THAT HE HAD REPORTED $30,189.99 IN HIS 1937 RETURN AS "OTHER
COMMISSIONS" AND THAT HE HAD PAID OUT THE BALANCE, ROUGHLY $21,000, AS
POLITICAL CONTRIBUTIONS FOR THAT YEAR.  ON CROSS-EXAMINATION HE DENIED
THAT HE HAD RECEIVED PAYMENTS FROM SOUTHERN DURING NOVEMBER AND
DECEMBER, 1937.  FN1  HE WAS THEN ASKED "DID YOU RECEIVE ANY MONEY FROM
NUMBERS IN 1938?"  COUNSEL FOR THE DEFENSE OBJECTED TO THE QUESTION ON
THE GROUND THAT IT WAS NOT RELEVANT TO THE ISSUE AND WOULD TEND TO
PROVE A DIFFERENT OFFENSE THAN THE ONE CHARGED IN THE INDICTMENT.  THE
COURT OVERRULED THE OBJECTION.  PETITIONER THEN ANSWERED THE QUESTION
IN THE AFFIRMATIVE.  HE WAS THEN ASKED, "WHO GAVE IT TO YOU?"  COUNSEL
FOR THE DEFENSE OBJECTED.  THE COURT HAD THE JURY WITHDRAW.  THE
PROSECUTOR ASKED THAT PETITIONER "ALSO BE EXCUSED FROM THE COURT ROOM
DURING THE ARGUMENT, AND THAT WHEN HE RESUMES THE STAND HE SHOULD DO SO
WITHOUT HAVING ANY OPPORTUNITY TO HEAR WHAT THE ARGUMENT IS ABOUT." 
THE COURT SAID "THAT IS A FAIR REQUEST" AND ORDERED PETITIONER TO
RETIRE, WHICH HE DID.  NO OBJECTION WAS MADE TO THAT ACTION.  COUNSEL
FOR THE PROSECUTION ARGUED THAT THE QUESTIONS ASKED IN CROSS
EXAMINATION WERE PROPER TO ESTABLISH A CONTINUOUS PRACTICE OF RECEIVING
THE NUMBERS INCOME THROUGHOUT 1937.  COUNSEL FOR THE DEFENSE INSISTED
THAT THE CROSS-EXAMINATION SHOULD BE LIMITED TO THE SUBJECTS OPENED UP
BY THE EXAMINATION IN CHIEF.  THE COURT EXPRESSED THE VIEW THAT THE
CROSS-EXAMINATION WAS PERMISSIBLE SINCE IT BORE DIRECTLY UPON
CREDIBILITY.  COUNSEL FOR THE DEFENSE THEN PRESSED THE POINT THAT EVEN
IF IT OTHERWISE MIGHT BE PROPER CROSS-EXAMINATION, NEVERTHELESS IT WAS
"IMPROPER CROSS-EXAMINATION FOR THE REASON THAT IT IS DIRECTED TO A
FUTURE PROSECUTION."  HE ASSERTED THAT HE MADE THE CLAIM OF PRIVILEGE
ON BEHALF OF THE ACCUSED "IN VIEW OF THE AVOWED THREAT OF THE
GOVERNMENT TO PROSECUTE HIM FOR THE VERY YEARS CONCERNING WHICH HE IS
NOW ASKED TO TESTIFY."  THE COURT REPLIED THAT IT WAS FOR THE ACCUSED,
NOT HIS COUNSEL, TO MAKE THE CLAIM AND ADDED, "YOU MAY ADVISE HIM OF
HIS RIGHTS, OF COURSE, BUT IT IS FOR HIM TO DETERMINE WHETHER OR NOT HE
WISHES TO TAKE ADVANTAGE OF THEM."  AFTER FURTHER ARGUMENT, THE COURT
STATED: 

"IT SEEMS TO ME THAT THE TESTIMONY IS PERFECTLY RELEVANT AND MATERIAL
AS CROSS EXAMINATION DIRECTED TO CREDIBILITY. 

"IN VIEW OF THE WITNESS' TESTIMONY, UNLESS IT RUNS AFOUL OF HIS RIGHT
NOT TO BE REQUIRED TO INCRIMINATE HIMSELF, IT SEEMS TO ME THAT THAT IS
A RIGHT WHICH HE MAY WAIVE OR CLAIM, AND THAT THAT IS A PERSONAL RIGHT
THAT HE MAY BE ADVISED BY COUNSEL WHEN A QUESTION IS ASKED, AND THAT HE
WILL HAVE TO DETERMINE HIMSELF WHETHER HE IS GOING TO CLAIM IT OR
NOT." 

PETITIONER RESUMED THE STAND.  THE QUESTION "WHO GAVE IT TO YOU?" 
WAS REPEATED.  COUNSEL FOR PETITIONER THEN ADVISED HIM OF HIS
CONSTITUTIONAL PRIVILEGE, WHICH HE THEREUPON CLAIMED.  THE COURT RULED,
"YOU MAY DECLINE TO ANSWER." 

THE PROSECUTOR IN HIS ADDRESS TO THE JURY COMMENTED AT SOME LENGTH ON
PETITIONER'S ASSERTION OF HIS CONSTITUTIONAL PRIVILEGE: 

I ASKED HIM, "DID YOU GET THE MONEY IN 1938?"  AND HE SAID, "YES." 
WELL, OF COURSE, THEN A LOT OF LITTLE THINGS HAPPENED.  THEY DIDN'T
LIKE THAT BECAUSE NATURALLY YOU SAY, "WELL, I DON'T UNDERSTAND THAT,
MR. JOHNSON."  I WISH YOU COULD HAVE ASKED HIM QUESTIONS THEN.  YOU
SAY, "MR. JOHNSON, YOU SAY THAT SUDDENLY NOVEMBER 1ST, 1937 YOU STOPPED
GETTING THE $1200 FROM NUMBERS; THEN IN 1938 YOU STARTED TO GET IT
AGAIN?  HOW COME?"  YOU DON'T GET IT, YOU DON'T GET IT BECAUSE IT ISN'T
THE TRUTH.  THAT IS WHAT CROSS EXAMINATION IS FOR. 

SO THEN WE WENT BEYOND THAT.  WE SAID, "WHO DID YOU GET IT FROM?"  HE
SAID, "I CLAIM MY PRIVILEGE AGAINST SELF-INCRIMINATION.  I VIOLATED THE
INCOME TAX LAW OF 1938; I DON'T WANT TO TELL YOU ABOUT THAT.  I AM
HAVING ENOUGH TROUBLE WITH 1935, SIX AND SEVEN."  IF HE COULD HAVE
CLAIMED HIS PRIVILEGE ON THE STAND HERE WITH RESPECT TO 1935, SIX AND
SEVEN HE WOULD HAVE DONE IT.  HE WOULD CLAIM ANYTHING THAT IS NECESSARY
TO GET HIM OUT OF ANY PREDICAMENT HE IS IN.  WELL, NOW, LADIES AND
GENTLEMEN, IF HE GOT THAT NUMBERS MONEY IN 1938 WHO DID HE GET IT
FROM?  HE MUST HAVE GOT IT FROM JACK SOUTHERN.  MAYBE HE GOT IT FROM
INSPECTOR FERRETTI, BUT HE ADMITS HE GOT IT. WELL, THEN, IF HE GOT IT
HE GOT IT DURING THE LAST TWO MONTHS OF 1937.  THEY DIDN'T SAY ANYTHING
ABOUT THAT TO YOU BECAUSE THEY WERE TRAPPED.  NO NEED OF THEM TALKING
ABOUT IT.  IT IS FOR ME TO POINT THAT OUT TO YOU. 

NOW, LADIES AND GENTLEMEN, CAN YOU BELIEVE THAT MAN TOLD YOU THE
TRUTH ABOUT ANYTHING ON THE WITNESS STAND WHEN HE ADMITS THAT HE GOT
NUMBERS MONEY IN 1938 BUT WON'T TELL YOU WHO HE GOT IT FROM ON THE
GROUND IT WOULD INCRIMINATE HIM?  IF YOU CAN BELIEVE THAT THAT MAN IS
INNOCENT OF THIS CHARGE WHEN HE STANDS RIGHT UP IN FRONT OF YOU AND
SAYS HE CANNOT ANSWER A QUESTION ABOUT 1938, THAT HE JUST GOT THROUGH
ANSWERING FOR 1937 ON THE GROUND IT WOULD INCRIMINATE HIM, WELL, THEN,
I JUST DON'T GET IT. 

AN OBJECTION WAS MADE TO THESE STATEMENTS AND OVERRULED AND AN
EXCEPTION WAS NOTED.  THE NEXT MORNING BEFORE THE COURT CHARGED THE
JURY VARIOUS OTHER OBJECTIONS WERE SUBMITTED.  DURING THE COLLOQUY THE
COURT STATED THAT THERE "WERE A NUMBER OF MATTERS REFERRED TO LAST
EVENING  ...  I RULED ON SOME OF THEM, ALL OF WHICH RULINGS I INDICATED
I WOULD RECONSIDER.  NOW, HAVE YOU MENTIONED TO ME NOW ALL THE POINTS
YOU DESIRE TO REFER TO?"  COUNSEL FOR PETITIONER REPLIED, "WE WITHDRAW
WHATEVER WAS SAID LAST NIGHT  ...  I THINK THE ONLY FAIR THING TO DO IS
TO FORGET EVERYTHING THAT HAPPENED LAST NIGHT AND START THIS MORNING." 
THE OBJECTION PREVIOUSLY MADE TO THE PROSECUTOR'S COMMENT ON THE
ACCUSED'S FAILURE TO TESTIFY WAS NOT RENEWED.  NOR WAS ANY REQUEST MADE
TO THE COURT TO CHARGE THE JURY TO DISREGARD PETITIONER'S REFUSAL TO
TESTIFY.  THOUGH THE PROSECUTOR'S COMMENT ON THE ACCUSED'S FAILURE TO
TESTIFY WAS AGAIN ADVERTED TO, IT WAS IN A DIFFERENT CONNECTION. 
COUNSEL FOR PETITIONER CONTENDED THAT THE PROSECUTOR'S STATEMENT THAT
THE CLAIM OF PRIVILEGE AMOUNTED TO AN ADMISSION OF INCOME TAX VIOLATION
IN 1938 WAS "AN ENTIRE MISCONCEPTION OF  ...  THE CLAIM OF PRIVILEGE"
INASMUCH AS THE BASIS OF THE CLAIM "IS THAT THE TESTIMONY  ...  WOULD
HAVE A TENDENCY TO INCRIMINATE HIM," AND "NOT THAT IT WOULD PROVE HIM
GUILTY."  THE COURT INDICATED THAT THIS OBJECTION WAS WELL TAKEN AND
SHOULD BE CALLED TO THE ATTENTION OF THE JURY.  THE COURT ADDED, "HE IS
NOT BEING CHARGED WITH ANY 1938 TAX."  THE PROSECUTOR THEN SAID, "IT IS
A QUESTION OF HIS GOOD FAITH AND HIS CREDIBILITY, AND THE ANSWERS HE
HAS ALREADY GIVEN ON SIMILAR QUESTIONS.  THAT IS THE PURPOSE FOR WHICH
THE QUESTIONS WERE PERMITTED."  THE COURT THEREUPON STATED, "I THINK I
PROBABLY SHOULD INDICATE TO THE JURY THAT THAT IS THE FULL EXTENT OF
IT."  COUNSEL FOR PETITIONER REMAINED SILENT, MAKING NO OBJECTION.  NO
ERROR WAS ASSERTED IN THE MOTION FOR A NEW TRIAL OR IN THE ASSIGNMENTS
OF ERROR ON THE GROUND THAT THE PROSECUTOR'S COMMENT OR THE COURT'S
CHARGE ON THE INFERENCE FROM THE CLAIM OF PRIVILEGE WAS IMPROPER. 

THE COURT IN ITS CHARGE STATED THAT PETITIONER'S REFUSAL TO ANSWER
THE QUESTION ON THE GROUND THAT IT WOULD TEND TO INCRIMINATE HIM "MAY
ONLY BE CONSIDERED BY YOU IN TESTING HIS CREDIBILITY AS TO THE ANSWERS
WHICH HE DID GIVE AND HIS GOOD FAITH IN THE MATTER" AND THAT PETITIONER
WAS NOT BEING TRIED FOR ANYTHING HE DID IN 1938.  TO THIS CHARGE NO
OBJECTION WAS MADE. 

THE CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT OF CONVICTION, ONE
JUDGE DISSENTING.  129 F.2D 954.  THE COURT HELD THAT THE EXCLUSION OF
PETITIONER FROM THE COURT ROOM DURING THE COLLOQUY DID NOT RESULT IN
PREJUDICE; THAT THE CROSS-EXAMINATION COVERING 1938 INCOME WAS PROPER;
AND THAT THE ALLOWANCE OF COMMENT ON THE CLAIM OF PRIVILEGE WAS
JUSTIFIED.  THE CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI. 

THE CASE OF AN ACCUSED WHO VOLUNTARILY TAKES THE STAND AND THE CASE
OF AN ACCUSED WHO REFRAINS FROM TESTIFYING (BRUNO V. UNITED STATES, 308
U.S. 287) ARE OF COURSE VASTLY DIFFERENT.  RAFFEL V. UNITED STATES, 271
U.S. 494.  HIS "VOLUNTARY OFFER OF TESTIMONY UPON ANY FACT IS A WAIVER
AS TO ALL OTHER RELEVANT FACTS, BECAUSE OF THE NECESSARY CONNECTION
BETWEEN ALL."  8 WIGMORE, EVIDENCE (3D ED., 1940) SEC. 2276(2).  AND
SEE FITZPATRICK V. UNITED STATES, 178 U.S. 304, 315-316; POWERS V.
UNITED STATES, 223 U.S. 303, 314.  THE CROSS-EXAMINATION DID NOT RUN
AFOUL OF THE RULE WHICH PROHIBITS INQUIRY INTO A COLLATERAL CRIME
UNCONNECTED WITH THE OFFENSE CHARGED.  BOYD V. UNITED STATES, 142 U.S.
450.  INQUIRY INTO PETITIONER'S INCOME FOR 1938 WAS RELEVANT TO THE
ISSUE IN THE CASE.  AS CONTENDED BY THE PROSECUTION, THE RECEIPT OF
MONEY FROM THE NUMBERS SYNDICATE PRIOR TO NOVEMBER, 1937 AND AFTER
DECEMBER, 1937 MIGHT WELL SUPPORT A FINDING OF THE JURY THAT IN VIEW OF
ALL THE CIRCUMSTANCES THE PAYMENTS WERE NOT IN FACT INTERRUPTED DURING
THE LAST TWO MONTHS OF 1937.  THE AMOUNT AND SOURCE OF THE 1938 INCOME
ACCORDINGLY WERE RELEVANT TO SHOW THE CONTINUOUS NATURE OF THE
TRANSACTIONS IN QUESTION.  THAT LINE OF INQUIRY THEREFORE SATISFIED THE
TEST OF RELEVANCY AND WAS A PROPER PART OF CROSS-EXAMINATION.  SEE
CRAVENS V. UNITED STATES, 62 F.2D 261, 273; MEHAN V. UNITED STATES, 112
F.2D 561, 563; WEISS V. UNITED STATES, 122 F.2D 675, 682; BULLOCK V.
STATE, 65 N.J.L. 557, 575.  THOUGH THE ISSUE MIGHT HAVE BEEN MORE APTLY
PHRASED BY THE COURT IN TERMS OTHER THAN CREDIBILITY, THE MEANING OF
THE RULING IN ITS CONTEXT IS PLAIN.  THUS WE MAY ASSUME THAT IT WOULD
NOT HAVE BEEN ERROR FOR THE COURT TO DENY PETITIONER'S CLAIM OF
PRIVILEGE.  IN SUCH A CASE HIS FAILURE TO EXPLAIN THE SOURCE OF HIS
NUMBERS INCOME IN 1938 COULD PROPERLY BE THE SUBJECT OF COMMENT AND
INFERENCE.  AS STATED BY THIS COURT IN CAMINETTI V. UNITED STATES, 242
U.S. 470, 494, AN ACCUSED WHO TAKES THE STAND "MAY NOT STOP SHORT IN
HIS TESTIMONY BY OMITTING AND FAILING TO EXPLAIN INCRIMINATING
CIRCUMSTANCES AND EVENTS ALREADY IN EVIDENCE, IN WHICH HE PARTICIPATED
AND CONCERNING WHICH HE IS FULLY INFORMED, WITHOUT SUBJECTING HIS
SILENCE TO THE INFERENCES TO BE NATURALLY DRAWN FROM IT."  BUT WHERE
THE CLAIM OF PRIVILEGE IS ASSERTED AND UNQUALIFIEDLY GRANTED, THE
REQUIREMENTS OF FAIR TRIAL MAY PRECLUDE ANY COMMENT.  THAT CERTAINLY IS
TRUE WHERE THE CLAIM OF PRIVILEGE COULD NOT PROPERLY BE DENIED.  THE
RULE WHICH OBTAINS WHEN THE ACCUSED FAILS TO TAKE THE STAND (WILSON V.
UNITED STATES, 149 U.S. 60) IS THEN APPLICABLE.  AS STATED BY THE
SUPREME COURT OF PENNSYLVANIA, "IF THE PRIVILEGE CLAIMED BY THE WITNESS
BE ALLOWED, THE MATTER IS AT AN END.  THE CLAIM OF PRIVILEGE AND ITS
ALLOWANCE IS PROPERLY NO PART OF THE EVIDENCE SUBMITTED TO THE JURY,
AND NO INFERENCES WHATEVER CAN BE LEGITIMATELY DRAWN BY THEM FROM THE
LEGAL ASSERTION BY THE WITNESS OF HIS CONSTITUTIONAL RIGHT.  THE
ALLOWANCE OF THE PRIVILEGE WOULD BE A MOCKERY OF JUSTICE, IF EITHER
PARTY IS TO BE AFFECTED INJURIOUSLY BY IT."  PHELIN V. KENDERDINE, 20
PA. 354, 363; WIREMAN V. COMMONWEALTH, 203 KY. 57, 62-63, 261 S.W.
862.  AND SEE STATE V. VROMAN, 45 S.D. 465, 473, 188 N.W. 746; CARNE V.
LITCHFIELD, 2 MICH. 340; PEOPLE V. MCGUNGILL, 41 CAL. 429.  WE ALSO
THINK THAT THE SAME RESULT SHOULD OBTAIN IN ANY CASE WHERE THE COURT
GRANTS THE CLAIM OF PRIVILEGE AND THEN SUBMITS THE MATTER TO THE JURY,
IF THAT ACTION MAY BE SAID TO AFFECT MATERIALLY THE ACCUSED'S CHOICE OF
CLAIMING OR WAIVING THE PRIVILEGE AND RESULTS IN PREJUDICE.  THE FACT
THAT THE PRIVILEGE IS MISTAKENLY GRANTED IS IMMATERIAL.    THE RULING
OF THE COURT GAVE THE PETITIONER THE CHOICE BETWEEN TESTIFYING AND
REFUSING TO TESTIFY AS TO HIS 1938 INCOME.  AN ACCUSED HAVING THE
ASSURANCE OF THE COURT THAT HIS CLAIM OF PRIVILEGE WOULD BE GRANTED
MIGHT WELL BE ENTRAPPED IF HIS ASSERTION OF THE PRIVILEGE COULD THEN BE
USED AGAINST HIM.  HIS REAL CHOICE MIGHT THEN BE QUITE DIFFERENT FROM
HIS APPARENT ONE.  IN THIS CASE IT WOULD LIE BETWEEN PROTECTION AGAINST
AN INDICTMENT FOR 1938 AND THE USE OF HIS CLAIM OF PRIVILEGE AS
EVIDENCE THAT HE DID IN FACT RECEIVE THE INCOME DURING THE LAST TWO
MONTHS OF 1937.  ELEMENTARY FAIRNESS REQUIRES THAT AN ACCUSED SHOULD
NOT BE MISLED ON THAT SCORE.  IF ADVISED BY THE COURT THAT HIS CLAIM OF
PRIVILEGE THOUGH GRANTED WOULD BE EMPLOYED AGAINST HIM, HE WELL MIGHT
NEVER CLAIM IT.  IF HE RECEIVES ASSURANCE THAT IT WILL BE GRANTED IF
CLAIMED, OR IF IT IS CLAIMED AND GRANTED OUTRIGHT, HE HAS EVERY RIGHT
TO EXPECT THAT THE RULING IS MADE IN GOOD FAITH AND THAT THE RULE
AGAINST COMMENT WILL BE OBSERVED.  CERTAINLY THE QUESTION WHETHER
PETITIONER HAD RECEIVED INCOME FROM THE SYNDICATE DURING NOVEMBER AND
DECEMBER, 1937, WAS AN EXTREMELY MATERIAL ISSUE IN THE CASE.  AS WE
HAVE NOTED, PETITIONER ADMITTED RECEIVING $50,400 FROM THE NUMBERS
SYNDICATE DURING 1937.  AND ALL OF THIS AMOUNT ACCORDING TO THE
TESTIMONY WAS RECEIVED PRIOR TO NOVEMBER 1, 1937.  OF THIS AMOUNT HE
REPORTED ONLY $30,189.99 IN HIS 1937 INCOME TAX RETURN.  HE TESTIFIED,
HOWEVER, THAT HE HAD PAID OUT $21,000 IN POLITICAL CONTRIBUTIONS FOR
THAT YEAR.  THUS HE ATTEMPTED TO ACCOUNT FOR ALL THE NUMBERS INCOME
WHICH HE HAD RECEIVED THAT YEAR AND DEFENDED ON THE GROUND THAT HIS
FAILURE TO RETURN THE $21,000 WAS DUE TO HIS MISTAKEN BUT SINCERE
BELIEF THAT HE WAS BOUND TO RETURN ONLY THE NET BALANCE REMAINING AFTER
DEDUCTING AMOUNTS EXPENDED FOR POLITICAL PURPOSES.  THE INDICTMENT,
HOWEVER, CHARGED THAT HE HAD RECEIVED $62,400 FROM THE NUMBERS
SYNDICATE DURING 1937.  AND THE PROSECUTION CLAIMED THAT THE WEEKLY
PAYMENTS OF $1,200 CONTINUED DURING NOVEMBER AND DECEMBER, 1937.  IF
THAT WERE ESTABLISHED, IT WOULD PLAINLY DESTROY HIS DEFENSE AND WOULD
BE COGENT EVIDENCE OF HIS WILFUL ATTEMPT TO EVADE THE TAX.  ALL OF THE
DIRECT EVIDENCE IN THE RECORD WAS TO THE EFFECT THAT HE HAD NOT
RECEIVED INCOME FROM THE NUMBERS SYNDICATE DURING NOVEMBER AND
DECEMBER, 1937.  THERE WAS NO BASIS FOR CONCLUDING THAT HE HAD UNLESS
THAT FACT WAS TO BE INFERRED FROM THE EVIDENCE THAT HE HAD RECEIVED THE
INCOME UNTIL NOVEMBER, 1937 AND THAT HE RECEIVED IT AGAIN IN 1938. 
HENCE IT WOULD BE HIGHLY VALUABLE TO THE PROSECUTION AND EQUALLY
DAMAGING TO THE ACCUSED TO HAVE HIS FAILURE TO TESTIFY EMPLOYED TO
BOLSTER SUCH AN INFERENCE. 

IT IS NO ANSWER TO SAY THAT COMMENT ON A DEFENDANT'S REFUSAL TO
TESTIFY DOES NOT IN ANY WAY PLACE HIM IN JEOPARDY OF BEING CHARGED WITH
OR CONVICTED OF THE CRIME PROTECTED BY HIS PRIVILEGE.  THAT MAY BE
ADMITTED.  THE PROBLEM HERE IS A DIFFERENT ONE.  IT IS WHETHER A
PROCEDURE WILL BE APPROVED WHICH DEPRIVES AN ACCUSED ON FACTS SUCH AS
THESE OF AN INTELLIGENT CHOICE BETWEEN CLAIMING OR WAIVING HIS
PRIVILEGE.  KNOWLEDGE THAT A FAILURE TO TESTIFY THOUGH PERMITTED BY THE
COURT WOULD BE SUBMITTED TO THE JURY MIGHT SERIOUSLY AFFECT THAT
CHOICE.  IF THE ACCUSED MAKES THE CHOICE WITHOUT THAT KNOWLEDGE, HE MAY
WELL BE MISLED ON ONE OF THE MOST IMPORTANT DECISIONS IN HIS DEFENSE. 
WE WOULD OF COURSE NOT BE CONCERNED WITH THE MATTER IF IT TURNED ONLY
ON THE QUALITY OF LEGAL ADVICE WHICH HE RECEIVED.  BUT THE
RESPONSIBILITY FOR MISUSE OF THE GRANT OF THE CLAIM OF PRIVILEGE IS THE
COURT'S.  IT IS THE COURT TO WHOM AN ACCUSED PROPERLY AND NECESSARILY
LOOKS FOR PROTECTION IN SUCH A MATTER.  WHEN IT GRANTS THE CLAIM OF
PRIVILEGE BUT ALLOWS IT TO BE USED AGAINST THE ACCUSED TO HIS
PREJUDICE, WE CANNOT DISREGARD THE MATTER.  THAT PROCEDURE HAS SUCH
POTENTIALITIES OF OPPRESSIVE USE THAT WE WILL NOT SANCTION ITS USE IN
THE FEDERAL COURTS OVER WHICH WE HAVE SUPERVISORY POWERS. 

WE ARE MINDFUL OF THE FACT THAT THERE IS EMINENT AUTHORITY WHICH MAY
BE SAID TO REPRESENT THE CONTRARY VIEW.  STATE V. OBER, 52 N.H. 459. 
THAT CASE STANDS FOR THE GENERAL PROPOSITION THAT WHEN THE ACCUSED TOOK
THE STAND "WITHOUT CLAIMING HIS CONSTITUTIONAL PRIVILEGE, IT WAS TOO
LATE FOR HIM TO HALT AT THAT POINT WHICH SUITED HIS OWN CONVENIENCE." 
ID., P. 465.  WITH THAT RULE WE AGREE.  WHETHER THE FACTS OF THAT CASE
AND THE STAGE OF THE PROOF WHEN THE PRIVILEGE WAS CLAIMED MADE THE
COMMENT ON THE ACCUSED'S FAILURE TO TESTIFY PREJUDICIAL, CANNOT BE
DETERMINED FROM THE REPORT OF THE CASE.  THE POINT WITH WHICH WE ARE
HERE CONCERNED WAS NOT ADVERTED TO IN THE OPINION.  INDEED THE COURT
STATED (52 N.H. P. 465) THAT THE "WHOLE ARGUMENT OF HIS COUNSEL NOW
PROCEEDS UPON THE ERRONEOUS ASSUMPTION THAT THE RULING OF THE COURT
(GRANTING THE CLAIM OF PRIVILEGE) WAS RIGHT.  THAT ASSUMPTION BEING
GROUNDLESS, HIS ARGUMENT FAILS."  BUT AS WE HAVE INDICATED, THE PROBLEM
IN THIS CASE IS QUITE DIFFERENT. 

WE HAVE CONSIDERED THIS MATTER AT LENGTH BECAUSE THE CIRCUIT COURT OF
APPEALS RULED UPON IT AND APPROVED THE PROCEDURE FOLLOWED BY THE
DISTRICT COURT.  BUT WE DO NOT GRANT A NEW TRIAL BECAUSE OF ONE
CIRCUMSTANCE WHICH SEEMS TO US CONTROLLING.  AS WE HAVE NOTED, THOUGH
AN EXCEPTION WAS TAKEN TO THE PROSECUTOR'S COMMENT ON PETITIONER'S
REFUSAL TO TESTIFY, IT WAS LATER WITHDRAWN.  AND WHEN THE COURT INVITED
COUNSEL TO BRING TO ITS ATTENTION ANY OBJECTIONS OR REQUESTS TO CHARGE,
COUNSEL DID NOT RENEW THE OBJECTION.  NOR WAS ANY REQUEST MADE TO
CHARGE THE JURY ON THE MATTER.  MOREOVER, THOUGH THE QUESTION OF THE
PROSECUTOR'S COMMENT WAS AGAIN ADVERTED TO BY THE DEFENSE, THE
OBJECTION WAS OF A WHOLLY DIFFERENT CHARACTER AND ONE WHICH THE COURT
INDICATED ITS WILLINGNESS TO CORRECT.  AND WHEN THE COURT STATED WHAT
CHARGE IT WOULD GIVE THE JURY ON THE POINT, COUNSEL FOR THE DEFENSE
STOOD BY AND VOICED NO PROTEST OR OBJECTION.  WE CAN ONLY CONCLUDE THAT
PETITIONER EXPRESSLY WAIVED ANY OBJECTION TO THE PROSECUTOR'S COMMENT
BY WITHDRAWING HIS EXCEPTION TO IT AND BY ACQUIESCING IN THE TREATMENT
OF THE MATTER BY THE COURT.  IT IS TRUE THAT WE MAY OF OUR OWN MOTION
NOTICE ERRORS TO WHICH NO EXCEPTION HAS BEEN TAKEN IF THEY WOULD
"SERIOUSLY AFFECT THE FAIRNESS, INTEGRITY OR PUBLIC REPUTATION OF
JUDICIAL PROCEEDINGS."  SEE UNITED STATES V. ATKINSON, 297 U.S. 157,
160; CLYATT V. UNITED STATES, 197 U.S. 207, 221-222.  BUT WE ARE NOT
DEALING HERE WITH INADVERTENCE OR OVERSIGHT.  THIS IS A CASE WHERE
SILENT APPROVAL OF THE COURSE FOLLOWED BY THE COURT (BOYD V. UNITED
STATES, 271 U.S. 104, 108) IS ACCOMPANIED BY AN EXPRESS WAIVER OF A
PRIOR OBJECTION TO THE METHOD BY WHICH THE CLAIM OF PRIVILEGE WAS
TREATED.  IN SUCH A SITUATION THE RULE STATED BY MR. JUSTICE SUTHERLAND
IN UNITED STATES V. MANTON, 107 F.2D 834, 848, IS APPLICABLE: 

"IF THE FAILURE TO ENTER AN EXCEPTION OR ASSIGN ERROR HAD BEEN A MERE
INADVERTENCE THE MATTER MIGHT STAND IN A DIFFERENT LIGHT.  BUT THAT
VIEW CANNOT BE INDULGED.  PLAINLY ENOUGH, COUNSEL CONSCIOUSLY AND
INTENTIONALLY FAILED TO SAVE THE POINT AND LED THE TRIAL JUDGE TO
UNDERSTAND THAT COUNSEL WAS SATISFIED.  WE SEE NO WARRANT FOR THE
EXERCISE OF OUR DISCRETION TO SET ASIDE STANDING RULES, SO NECESSARY TO
THE DUE AND ORDERLY ADMINISTRATION OF JUSTICE, AND REVIEW THE CHALLENGE
TO THE LEGAL ACCURACY OF THE CHARGE WHERE, AS HERE, THE FAILURE OF THE
JUDGE TO FOLLOW THE TEXT OF THE REQUESTED INSTRUCTION WAS, AT THE LAST,
INDUCED BY THE ACTION OF COUNSEL  ..." 

ANY OTHER COURSE WOULD NOT COMPORT WITH THE STANDARDS FOR THE
ADMINISTRATION OF CRIMINAL JUSTICE.  WE CANNOT PERMIT AN ACCUSED TO
ELECT TO PURSUE ONE COURSE AT THE TRIAL AND THEN, WHEN THAT HAS PROVED
TO BE UNPROFITABLE, TO INSIST ON APPEAL THAT THE COURSE WHICH HE
REJECTED AT THE TRIAL BE REOPENED TO HIM.  HOWEVER UNWISE THE FIRST
CHOICE MAY HAVE BEEN, THE RANGE OF WAIVER IS WIDE.  SINCE THE
PROTECTION WHICH COULD HAVE BEEN OBTAINED WAS PLAINLY WAIVED, THE
ACCUSED CANNOT NOW BE HEARD TO CHARGE THE COURT WITH DEPRIVING HIM OF A
FAIR TRIAL.  THE COURT ONLY FOLLOWED THE COURSE WHICH HE HIMSELF HELPED
TO CHART AND IN WHICH HE ACQUIESCED UNTIL THE CASE WAS ARGUED ON
APPEAL.  THE FACT THAT THE OBJECTION DID NOT APPEAR IN THE MOTION FOR
NEW TRIAL OR IN THE ASSIGNMENTS OF ERROR MAKES CLEAR THAT THE POINT NOW
IS A "MERE AFTERTHOUGHT."  UNITED STATES V. MANTON, SUPRA, P. 847. 

THE REMAINING OBJECTIONS MAY BE BRIEFLY DISPOSED OF.  IT IS CLAIMED
THAT THE EXPULSION OF PETITIONER FROM THE COURT ROOM WHILE COUNSEL WERE
ARGUING THE QUESTION OF THE PROPRIETY OF THE CROSS-EXAMINATION ON HIS
1938 INCOME DEPRIVED HIM OF HIS RIGHT TO BE PRESENT DURING THE TRIAL. 
CF. SNYDER V. MASSACHUSETTS, 291 U.S. 97.  IT IS ALSO URGED THAT
PETITIONER WAS DENIED THE ADVICE OF COUNSEL IN THAT THE COURT DIRECTED
THAT WHEN HE RESUMED THE STAND HE DO SO WITHOUT HAVING AN OPPORTUNITY
TO CONFER WITH HIS COUNSEL ABOUT CLAIMING THE PRIVILEGE.  BUT THERE IS
A SIMPLE ANSWER TO THESE OBJECTIONS.  NOT ONLY WERE NO EXCEPTIONS TAKEN
TO THESE RULINGS; IT ALSO APPEARS THAT THEY DID NOT RESULT IN A LOSS OF
THE PRIVILEGE WHICH THE COURT HAD INDICATED IT WOULD RECOGNIZE.  FOR
WHEN PETITIONER RESUMED THE STAND, HE WAS ADVISED OF HIS RIGHT TO CLAIM
THE PRIVILEGE, HE CLAIMED IT, AND IT WAS GRANTED.  ACCORDINGLY WE
CANNOT SEE WHERE ANY PREJUDICE RESULTED EVEN IF WE ASSUME, ARGUENDO,
THAT THE RULINGS OF THE COURT WERE NOT CORRECT.  AFFIRMED. 

FN1  THE INDICTMENT CHARGED THAT THE DEFENDANT HAD RECEIVED $62,400
FROM THE NUMBERS GAME IN 1937.  IT WAS THE DIFFERENCE BETWEEN THAT
AMOUNT AND $50,400 ADMITTEDLY RECEIVED WHICH WAS IN DISPUTE. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON DID NOT PARTICIPATE IN THE
CONSIDERATION OR DISPOSITION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

IN REVIEWING CRIMINAL CASES, IT IS PARTICULARLY IMPORTANT FOR
APPELLATE COURTS TO RE-LIVE THE WHOLE TRIAL IMAGINATIVELY AND NOT TO
EXTRACT FROM EPISODES IN ISOLATION ABSTRACT QUESTIONS OF EVIDENCE AND
PROCEDURE.  TO TURN A CRIMINAL APPEAL INTO A QUEST FOR ERROR NO MORE
PROMOTES THE ENDS OF JUSTICE THAN TO ACQUIESCE IN LOW STANDARDS OF
CRIMINAL PROSECUTION. 

AN EXAMINATION OF THE ENTIRE RECORD OF THE PROCEEDINGS LEAVES ME
WITHOUT DOUBT THAT JUDGE MARIS CONDUCTED THE TRIAL WITH CONSPICUOUS
FAIRNESS, AND THAT HE COMMITTED NO ERROR IN THE RULINGS COMPLAINED OF
UNLESS IT BE ONE IN FAVOR OF THE DEFENDANT.  IN ALLOWING THE DEFENDANT
TO WITHHOLD TESTIMONY REGARDING GAMBLING RECEIPTS FOR 1938, THE TRIAL
COURT, IN RECOGNIZING THE THREAT OF FUTURE PROSECUTION OF THE DEFENDANT
FOR EVADING TAXES IN THAT YEAR, WAS EXERCISING A MERCIFUL DISCRETION. 
FOR THIS AVENUE OF INQUIRY PLAINLY WAS RELEVANT TO THE TRUTH OF THE
CHARGES AGAINST JOHNSON IN THE PRESENT PROCEEDING.  IN VIEW OF ALL THAT
TOOK PLACE AT THE TRIAL, TO HAVE DENIED THE JURY AN OPPORTUNITY TO
CONSIDER THE SIGNIFICANCE OF THE DEFENDANT'S DESIRE NOT TO TESTIFY
REGARDING GAMBLING RECEIPTS IN 1938 WOULD HAVE BEEN TO WITHHOLD FROM
THEM A FACTOR RELEVANT IN DETERMINING WHETHER JOHNSON'S EXPLANATION OF
WHAT HE DID WITH THE "PROTECTION" MONEY RECEIVED BY HIM IN 1936 AND
1937 WAS THE TRUTH OR JUST A COCK-AND-BULL STORY. 

THAT THE DEFENDANT'S SENIOR COUNSEL, A LAWYER OF LONG EXPERIENCE IN
FEDERAL CRIMINAL PRACTICE, DID NOT TAKE EXCEPTION TO THE MANNER IN
WHICH JUDGE MARIS TEMPERED CONCERN FOR THE PROPER ADMINISTRATION OF
JUSTICE WITH SOLICITUDE FOR THE RIGHTS OF THE DEFENDANT, INDICATES NOT
"WAIVER" OF A RIGHT WHICH HAD BEEN DENIED BUT RECOGNITION THAT THE
ACTION OF THE TRIAL JUDGE WAS UNEXCEPTIONABLE.  THE CLAIM THAT THE
TRIAL WAS CONDUCTED IMPROPERLY IS OBVIOUSLY AN AFTERTHOUGHT.  ONLY
AFTER CONVICTION AND IN AN EFFORT TO UPSET THE JURY'S VERDICT ON APPEAL
WAS THE FAIR CONDUCT OF THE TRIAL COURT SOUGHT TO BE DISTORTED INTO AN
IMPROPRIETY. 
..END :















LEISHMAN V. ASSOCIATED ELECTRIC CO., 318 U.S. 203 


NO. 332.  ARGUED FEBRUARY 2, 1943.  - DECIDED FEBRUARY 15, 1943.  - 128
F.2D 204, REVERSED. 


1.  WHERE A MOTION UNDER RULE 52(B) OF THE RULES OF CIVIL PROCEDURE
(MADE WITHIN AN ENLARGEMENT OF TIME UNDER RULE 6(B)) TO AMEND AND
SUPPLEMENT THE FINDINGS AND CONCLUSIONS RELATES TO MATTERS OF SUBSTANCE
AND WOULD, IF GRANTED, REQUIRE AN AMENDMENT OF THE JUDGMENT TO CONFORM
THERETO, EVEN THOUGH AMENDMENT OF THE JUDGMENT WAS NOT SPECIFICALLY
REQUESTED, THE TIME FOR TAKING AN APPEAL FROM THE JUDGMENT (28 U.S.C.
SEC. 230) RUNS FROM THE DATE OF THE ORDER DISPOSING OF THE MOTION.  P.
205. 

2.  RULE 59 OF THE RULES OF CIVIL PROCEDURE, RELATING TO NEW TRIALS,
HELD INAPPLICABLE.  P. 206. 

LEISHMAN V. ASSOCIATED WHOLESALE ELECTRIC CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 317 U.S. 612, TO REVIEW A DECREE DISMISSING AN APPEAL FOR
WANT OF JURISDICTION. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER PETITIONER APPEALED TO THE
CIRCUIT COURT OF APPEALS WITHIN THE TIME PROVIDED BY LAW (28 U.S.C.
SEC. 230). 

THIS IS A SUIT BROUGHT BY PETITIONER FOR INFRINGEMENT OF CERTAIN
CLAIMS OF A REISSUE PATENT.  THE DISTRICT COURT MADE FINDINGS OF FACT
THAT THE CLAIMS IN ISSUE DID NOT EMBODY ANY INVENTION OVER THE PRIOR
ART AND ENTERED JUDGMENT DISMISSING THE COMPLAINT ON MAY 1, 1941.  ON
MAY 28, 1941, AFTER SECURING AN ENLARGEMENT OF TIME UNDER RULE 6(B) OF
THE RULES OF CIVIL PROCEDURE (28 U.S.C.A. FOLLOWING SEC. 723C),
PETITIONER FILED A MOTION UNDER RULE 52(B)  FN1 ASKING THAT THE
FINDINGS "BE AMENDED AND SUPPLEMENTED."  PETITIONER REQUESTED THAT SOME
OF THE FINDINGS RELATING TO NON-INVENTION BE AMENDED IN CERTAIN
RESPECTS SET OUT IN THE MOTION SO AS TO SHOW INVENTION AND TO INCLUDE A
SPECIFIC FINDING THAT THE CLAIMS IN ISSUE DID DEFINE INVENTION OVER THE
PRIOR ART. SUPPLEMENTAL FINDINGS, INTENDED TO DISPOSE OF VARIOUS OTHER
DEFENSES ASSERTED BY RESPONDENT BUT NOT PASSED UPON BY THE COURT, WERE
ALSO REQUESTED.  THE MOTION CONCLUDED WITH THE STATEMENT THAT:
"CONSISTENTLY WITH THESE FINDINGS, THE CONCLUSIONS OF LAW SHOULD BE
AMENDED TO STATE THAT THE CLAIMS  ...  IN SUIT, ARE VALID; THAT AN
INJUNCTION SHALL ISSUE IN THE USUAL FORM, AND THAT THERE BE AN
ACCOUNTING FOR PAST INFRINGEMENT."  THIS MOTION WAS DENIED ON JUNE 9,
1941. 

ON SEPTEMBER 4, 1941, PETITIONER FILED HIS NOTICE OF APPEAL IN THE
DISTRICT COURT.  FN2  THE CIRCUIT COURT OF APPEALS SUA SPONTE HELD IT
HAD NO JURISDICTION BECAUSE THE APPEAL WAS TAKEN MORE THAN THREE MONTHS
AFTER THE ENTRY OF JUDGMENT, CONTRARY TO 28 U.S.C. SEC. 230.  IN SO
HOLDING THAT COURT RECOGNIZED THE GENERAL RULE THAT WHERE A PETITION
FOR REHEARING, A MOTION FOR A NEW TRIAL, OR A MOTION TO VACATE, AMEND,
OR MODIFY A JUDGMENT IS SEASONABLY MADE AND ENTERTAINED, THE TIME FOR
APPEAL DOES NOT BEGIN TO RUN UNTIL THE DISPOSITION OF THE MOTION.  FN3
BUT THIS CASE WAS DIFFERENTIATED ON THE GROUND THAT THE INSTANT MOTION
WAS NOT ONE TO AMEND THE JUDGMENT BUT MERELY ONE TO AMEND AND
SUPPLEMENT THE FINDINGS AND CONCLUSIONS.  128 F.2D 204.  WE GRANTED
CERTIORARI TO SETTLE THE IMPORTANT QUESTION OF PRACTICE PRESENTED UNDER
THE RULES OF CIVIL PROCEDURE. 

WE THINK THAT PETITIONER'S TIME TO APPEAL DID NOT BEGIN TO RUN UNTIL
THE DISPOSITION OF HIS MOTION UNDER RULE 52(B) ON JUNE 9, 1941, AND
ACCORDINGLY THAT HIS APPEAL WAS TIMELY.  THE MOTION WAS NOT ADDRESSED
TO MERE MATTERS OF FORM BUT RAISED QUESTIONS OF SUBSTANCE SINCE IT
SOUGHT RECONSIDERATION OF CERTAIN BASIC FINDINGS OF FACT AND THE
ALTERATION OF THE CONCLUSIONS OF THE COURT.  IN SHORT THE NECESSARY
EFFECT WAS TO ASK THAT RIGHTS ALREADY ADJUDICATED BE ALTERED. 
CONSEQUENTLY IT DEPRIVED THE JUDGMENT OF THAT FINALITY WHICH IS
ESSENTIAL TO APPEALABILITY.  CF. ZIMMERN V. UNITED STATES, 298 U.S.
167; DEPARTMENT OF BANKING V. PINK, 317 U.S. 264.  IT IS IMMATERIAL
THAT PETITIONER DID NOT SPECIFICALLY REQUEST THE AMENDMENT OF THE
JUDGMENT, AND THE DISTINCTION BASED ON THIS FAILURE TO REQUEST BY THE
COURT BELOW IS ARTIFICIAL AND UNTENABLE.  IF THE MOTION HAD BEEN
GRANTED AND THE REQUESTED AMENDED AND SUPPLEMENTAL FINDINGS MADE, THE
JUDGMENT WOULD HAVE TO BE AMENDED OR ALTERED TO CONFORM TO THOSE
FINDINGS AND THE CONCLUSIONS RESULTING FROM THEM.  WE CONCLUDE THAT A
MOTION UNDER RULE 52(B) SUCH AS THE INSTANT ONE WHICH SEEKS TO AMEND OR
SUPPLEMENT THE FINDINGS OF FACT IN MORE THAN PURELY FORMAL OR
MECHANICAL ASPECTS TOLLS THE APPEALS STATUTE, AND THAT THE TIME FOR
TAKING AN APPEAL RUNS FROM THE DATE OF THE ORDER DISPOSING OF THE
MOTION.  CF. CONTINENTAL OIL CO. V. UNITED STATES, 299 U.S. 510. 

THE MOTION WAS NOT ONE FOR A NEW TRIAL UNDER RULE 59 AND RESPONDENT'S
ARGUMENT, BASED ON THAT PREMISE, THAT IT WAS NOT FILED IN TIME,  FN4
IS NOT PERTINENT. 

THE JUDGMENT BELOW IS REVERSED. 

FN1  SO FAR AS IS HERE MATERIAL RULE 52(B) PROVIDES:  "UPON MOTION OF
A PARTY MADE NOT LATER THAN 10 DAYS AFTER ENTRY OF JUDGMENT THE COURT
MAY AMEND ITS FINDINGS OR MAKE ADDITIONAL FINDINGS AND MAY AMEND THE
JUDGMENT ACCORDINGLY." 

FN2  THIS IS THE PROPER METHOD OF TAKING AN APPEAL.  RULE 73(A). 

FN3  MORSE V. UNITED STATES, 270 U.S. 151, 153-54, AND CASES CITED. 
COMPARE JOPLIN ICE CO. V. UNITED STATES, 87 F.2D 174; SUGGS V. MUTUAL
BENEFIT ASSN., 115 F.2D 80; NEELY V. MERCHANTS TRUST CO., 110 F.2D 525;
UNITED STATES V. STEINBERG, 100 F.2D 124.  SEE ALSO CITIZENS BANK V.
OPPERMAN, 249 U.S. 448; GYPSY OIL CO. V. ESCOE, 275 U.S. 498; PFISTER
V. NORTHERN ILLINOIS FINANCE CORP., 317 U.S. 144. 

FN4  THE 10 DAY LIMIT FOR FILING FIXED IN RULE 59 CANNOT BE ENLARGED
UNDER RULE 6(B) EXCEPT AS PROVIDED IN SUBSECTION (C) OF RULE 59. 
..END :









U.S. V. OKLAHOMA GAS CO., 318 U.S. 206 


NO. 171.  ARGUED DECEMBER 9, 1942.  - DECIDED FEBRUARY 15, 1943.  - 127
F.2D 349, AFFIRMED. 


1.  A PERMIT GRANTED BY THE SECRETARY OF THE INTERIOR UNDER SEC. 4 OF
THE ACT OF MARCH 3, 1901, TO THE STATE OF OKLAHOMA TO OPEN AND
ESTABLISH A PUBLIC HIGHWAY OVER INDIAN ALLOTTED LANDS, IS TO BE
CONSTRUED, IN THE ABSENCE OF ANY GOVERNING ADMINISTRATIVE RULING,
STATUTE, OR CONGRESSIONAL POLICY TO THE CONTRARY, AS AUTHORIZING THE
STATE TO LICENSE THE ERECTION AND MAINTENANCE OF A RURAL ELECTRIC
SERVICE LINE, A PROPER USE OF THE HIGHWAY UNDER STATE LAW.  P. 209. 

2.  THE INDIAN ALLOTTED LANDS INVOLVED IN THIS CASE WERE NOT WITHIN A
"RESERVATION" AS USED IN THE ACTS OF FEBRUARY 15, 1901, AND MARCH 4,
1911.  P. 215. 

UNITED STATES V. OKLAHOMA GAS & ELECTRIC CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 317 U.S. 608, TO REVIEW THE AFFIRMANCE OF A JUDGMENT, 37
F.SUPP.  347, DISMISSING A COMPLAINT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES SUED THE OKLAHOMA GAS AND ELECTRIC COMPANY IN THE
UNITED STATES DISTRICT COURT ASKING A DECLARATORY JUDGMENT THAT THE
COMPANY ILLEGALLY OCCUPIES WITH ITS POLE LINE CERTAIN INDIAN LAND, AND
A MANDATORY INJUNCTION TO TERMINATE SUCH OCCUPATION.  THE CASE TURNS ON
WHETHER PERMISSION TO THE STATE OF OKLAHOMA TO ESTABLISH A HIGHWAY OVER
ALLOTTED INDIAN LAND GIVEN UNDER SEC. 4 OF THE ACT OF MARCH 3, 1901,
FN1  INCLUDES THE RIGHT TO PERMIT MAINTENANCE OF RURAL ELECTRIC SERVICE
LINES WITHIN THE HIGHWAY BOUNDS. 

THE UNITED STATES AT ALL RELEVANT TIMES HELD TITLE TO HALF OF A
QUARTER SECTION OF LAND IN OKLAHOMA IN TRUST FOR SHE-PAH-THO-QUAH, A
MEXICAN KICKAPOO INDIAN ALLOTTEE THEREOF; AND SINCE HER DEATH, FOR HER
HEIRS.  THE STATE OF OKLAHOMA APPLIED TO THE SECRETARY OF THE INTERIOR
"TO GRANT PERMISSION IN ACCORDANCE WITH SEC. 4 OF THE ACT OF MARCH 3,
1901(31 STAT. L. 1058, 1084), TO OPEN AND ESTABLISH A PUBLIC HIGHWAY"
ACROSS THE LAND IN QUESTION.  THE HIGHWAY WIDTH WAS 80 FEET, AND IT
EXTENDED 2,577 FEET ON THESE LANDS, OCCUPYING 4.55 ACRES THEREOF.  THE
STATE PAID THEREFOR $1,275 AS COMPENSATION TO THE HEIRS OF SHE-PAH-THO
QUAH, AND ON JANUARY 20, 1928, THE MAP OF DEFINITE LOCATION WAS ON
BEHALF OF THE SECRETARY ENDORSED "APPROVED SUBJECT TO THE PROVISIONS OF
THE ACT OF MARCH 3, 1901(31 STAT. L. 1058, 1084), DEPARTMENT
REGULATIONS THEREUNDER; AND SUBJECT ALSO TO ANY PRIOR VALID EXISTING
RIGHT OR ADVERSE CLAIM." 

WAS SPECIFICALLY MADE AND GRANTED, PROVIDES: 

"THAT THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO GRANT
PERMISSION, UPON COMPLIANCE WITH SUCH REQUIREMENTS AS HE MAY DEEM
NECESSARY, TO THE PROPER STATE OR LOCAL AUTHORITIES FOR THE OPENING AND
ESTABLISHMENT OF PUBLIC HIGHWAYS, IN ACCORDANCE WITH THE LAWS OF THE
STATE OR TERRITORY IN WHICH THE LANDS ARE SITUATED, THROUGH ANY INDIAN
RESERVATION OR THROUGH ANY LANDS WHICH HAVE BEEN ALLOTTED IN SEVERALTY
TO ANY INDIVIDUAL INDIANS UNDER ANY LAWS OR TREATIES BUT WHICH HAVE NOT
YET BEEN CONVEYED TO THE ALLOTTEES WITH FULL POWER OF ALIENATION." 

APPARENTLY THE SECRETARY HAS NEVER ISSUED A REGULATION APPLICABLE TO
THIS CASE.  CF. 25 CODE OF FEDERAL REGULATIONS SEC. 261.1 ET SEQ. 

THE HIGHWAY WAS OPENED, AND IN 1936 THE OKLAHOMA STATE HIGHWAY
COMMISSION, WITH STATUTORY AUTHORITY TO ACT IN THE MATTER,  FN2
GRANTED RESPONDENT THE LICENSE UNDER WHICH IT OCCUPIES A PORTION OF THE
HIGHWAY WITH ITS RURAL ELECTRIC SERVICE LINE.  THE LICENSE IS IN TERMS
REVOCABLE AT WILL, PROVIDES FOR LOCATION OF THE POLES 38 FEET FROM THE
CENTER OF THE HIGHWAY, AND REQUIRES ALL LINES TO BE KEPT IN GOOD
REPAIR.  THE LICENSEE ASSUMES ALL LIABILITY FOR DAMAGE, AND THE LICENSE
RECITES THAT IT IS "GRANTED SUBJECT TO ANY AND ALL CLAIMS MADE BY
ADJACENT PROPERTY OWNERS AS COMPENSATION FOR ADDITIONAL BURDEN ON SUCH
ADJACENT AND ABUTTING PROPERTY." 

THE SECRETARY CONSIDERED THIS USE OF THE PROPERTY NOT WARRANTED BY
HIS PERMISSION TO THE STATE TO ESTABLISH A HIGHWAY UNDER SEC. 4 OF THE
ACT OF MARCH 3, 1901.  HE DEMANDED THAT THE COMPANY APPLY TO HIM UNDER
THE ACTS OF FEBRUARY 15, 1901 AND MARCH 4, 1911  FN3  FOR PERMISSION TO
MAINTAIN ITS LINES AND, WHEN THE COMPANY REFUSED, INSTITUTED THIS
ACTION.  THE DISTRICT COURT DISMISSED THE COMPLAINT, AND THE CIRCUIT
COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMED.  37 F.SUPP.  347, 127
F.2D 349.  THE QUESTION APPEARED IMPORTANT TO THE ADMINISTRATION OF
INDIAN AFFAIRS, AND WE GRANTED CERTIORARI. 

IT IS NOT DENIED THAT UNDER THE LAWS OF OKLAHOMA THE USE MADE OF THE
HIGHWAY BY RESPONDENT, THE STATE'S LICENSEE, IS A LAWFUL AND PROPER
HIGHWAY USE, IMPOSING NO ADDITIONAL BURDEN FOR WHICH A GRANTOR OF THE
HIGHWAY EASEMENT WOULD BE ENTITLED TO COMPENSATION.  BUT THE GOVERNMENT
DENIES THAT THE ACT OF MARCH 3, 1901, PROVIDING "FOR THE OPENING AND
ESTABLISHMENT OF PUBLIC HIGHWAYS, IN ACCORDANCE WITH THE LAWS OF THE
STATE OR TERRITORY IN WHICH THE LANDS ARE SITUATED," SUBMITS THE SCOPE
OF THE HIGHWAY USE TO STATE LAW.  ITS INTERPRETATION GIVES THE ACT A
VERY LIMITED MEANING AND SUBSTANTIALLY CONFINES STATE LAW TO GOVERNING
PROCEDURES FOR "OPENING AND ESTABLISHMENT" OF THE HIGHWAY.  IT OFFERS
AS EXAMPLES OF WHAT IS PERMITTED TO STATE DETERMINATION, WHETHER A
STATE OR COUNTY AGENCY BUILDS THE ROAD, WHETHER FUNDS SHALL BE RAISED
BY BOND ISSUE OR OTHERWISE, AND THE TERMS AND SPECIFICATIONS OF THE
CONSTRUCTION CONTRACT.  THE ISSUE IS BETWEEN THIS NARROW VIEW OF THE
STATE'S AUTHORITY AND THE BROADER ONE WHICH RECOGNIZES ITS LAWS AS
DETERMINING THE VARIOUS USES WHICH GO TO MAKE UP THE "PUBLIC HIGHWAY,"
OPENING AND ESTABLISHMENT OF WHICH ARE AUTHORIZED. 

WE SEE NO REASON TO BELIEVE THAT CONGRESS INTENDED TO GRANT TO LOCAL
AUTHORITIES A POWER SO LIMITED IN A MATTER SO COMMONLY SUBJECT TO
COMPLETE LOCAL CONTROL. 

IT IS WELL SETTLED THAT A CONVEYANCE BY THE UNITED STATES OF LAND
WHICH IT OWNS BENEFICIALLY OR, AS IN THIS CASE, FOR THE PURPOSE OF
EXERCISING ITS GUARDIANSHIP OVER INDIANS, IS TO BE CONSTRUED, IN THE
ABSENCE OF ANY CONTRARY INDICATION OF INTENTION, ACCORDING TO THE LAW
OF THE STATE WHERE THE LAND LIES.  FN4  PRESUMABLY CONGRESS INTENDED
THAT THIS CASE BE DECIDED BY REFERENCE TO SOME LAW, BUT THE GOVERNMENT
HAS CITED AND WE KNOW OF NO FEDERAL STATUTORY OR COMMON-LAW RULE FOR
DETERMINING WHETHER THE RUNNING OF THE ELECTRIC SERVICE LINES HERE
INVOLVED WAS A HIGHWAY USE.  THESE CONSIDERATIONS, AS WELL AS THE
EXPLICIT REFERENCE IN THE ACT TO STATE LAW IN THE MATTER OF
"ESTABLISHMENT" AS WELL AS OF "OPENING" THE HIGHWAY, INDICATE THAT THE
QUESTION IN THIS CASE IS TO BE ANSWERED BY REFERENCE TO THAT LAW, IN
THE ABSENCE OF ANY GOVERNING ADMINISTRATIVE RULING, STATUTE, OR
DOMINATING CONSIDERATION OF CONGRESSIONAL POLICY TO THE CONTRARY.  WE
FIND NONE OF THESE. 

APPARENTLY THE SECRETARY HAS NEVER SOUGHT TO SOLVE THE PROBLEM OF
THIS CASE BY AN ADMINISTRATIVE RULING, AND WHETHER HE MIGHT DO SO IS A
QUESTION WHICH THE PARTIES HAVE NEITHER RAISED NOR DISCUSSED, AND UPON
WHICH WE INTIMATE NO OPINION. 

IN CONSTRUING THIS STATUTE AS TO THE INCIDENTS OF A HIGHWAY GRANT WE
MUST BEAR IN MIND THAT THE ACT CONTEMPLATED A CONVEYANCE TO A PUBLIC
BODY, NOT TO A PRIVATE INTEREST.  THERE WAS NOT THE REASON TO WITHHOLD
CONTINUING CONTROL OVER THE USES OF THE STRIP THAT MIGHT BE WITHHELD
WISELY IN A GRANT OF INDEFINITE DURATION TO A PRIVATE GRANTEE.  IT IS
SAID THAT THE USE HERE PERMITTED BY THE STATE IS PRIVATE AND
COMMERCIAL, AND SO IT IS.  BUT A LICENSE TO USE THE HIGHWAY BY A
CARRIER OF PASSENGERS FOR HIRE, OR BY A MOTOR FREIGHT LINE, WOULD ALSO
BE A PRIVATE AND COMMERCIAL USE IN THE SAME SENSE.  AND IT HAS LONG
BEEN BOTH CUSTOMARY AND LAWFUL TO STIMULATE PRIVATE SELF-INTEREST AND
UTILIZE THE PROFIT MOTIVE TO GET NEEDFUL SERVICES PERFORMED FOR THE
PUBLIC.  THE STATE APPEARS TO BE DOING NO MORE THAN THAT. 

THIS IS NOT SUCH A TRANSMISSION LINE AS MIGHT ENDANGER HIGHWAY TRAVEL
OR ABUTTING OWNERS WITH NO COMPENSATING ADVANTAGE.  IT IS A RURAL
SERVICE LINE, AND TO BRING ELECTRIC ENERGY IN TO THE COUNTRYSIDE IS
QUITE AS ESSENTIAL TO MODERN LIFE AS MANY OTHER USES OF THE HIGHWAY. 
THE STATE HAS GRANTED NOTHING NOT REVOCABLE AT WILL, HAS ALIENATED
NOTHING OBTAINED UNDER THE ACT, HAS PERMITTED NO USE THAT WOULD
OBSTRUCT OR INTERFERE WITH THE USE FOR WHICH THE HIGHWAY WAS
ESTABLISHED, AND HAS NOT PURPORTED TO CONFER ANY RIGHT NOT SUBSIDIARY
TO ITS OWN OR WHICH WOULD SURVIVE ABANDONMENT OF THE HIGHWAY. 

THE INTERPRETATION SUGGESTED BY THE GOVERNMENT IS NOT SHOWN TO BE
NECESSARY TO THE FULFILLMENT OF THE POLICY OF CONGRESS TO PROTECT A
LESS-FAVORED PEOPLE AGAINST THEIR OWN IMPROVIDENCE OR THE OVERREACHING
OF OTHERS; NOR IS IT CONCEIVABLE THAT IT IS NECESSARY, FOR THE INDIANS
ARE SUBJECTED ONLY TO THE SAME RULE OF LAW AS ARE OTHERS IN THE STATE,
AND THEN ONLY BY PERMISSION OF THE SECRETARY, SUBJECT TO COMPLIANCE
WITH "SUCH REQUIREMENTS AS HE MAY DEEM NECESSARY." 

OKLAHOMA IS SPOTTED WITH RESTRICTED LANDS HELD IN TRUST FOR INDIAN
ALLOTTEES.  COMPLICATIONS AND CONFUSION WOULD FOLLOW FROM APPLYING TO
HIGHWAYS CROSSING OR ABUTTING SUCH LANDS RULES DIFFERING FROM THOSE
WHICH OBTAIN AS TO LANDS OF NON-INDIANS.  WE BELIEVE THAT IF CONGRESS
HAD INTENDED THIS IT WOULD HAVE MADE ITS MEANING CLEAR. 

THE GOVERNMENT RELIES, HOWEVER, ON THE ACTS OF FEBRUARY 15, 1901, AND
OF MARCH 4, 1911, WHICH IT SAYS REQUIRE THE SECRETARY'S CONSENT TO
CROSS INDIAN LAND WITH ELECTRIC LINES, REGARDLESS OF THE PRIOR GRANT OF
PERMISSION FOR THE HIGHWAY.  WE BELIEVE THAT THEY ARE INAPPLICABLE TO
THE LAND IN SUIT, AND THEREFORE NEED NOT DETERMINE WHAT WOULD BE THEIR
EFFECT IF THEY DID APPLY. 

THE ACT OF FEBRUARY 15, 1901, "AN ACT RELATING TO RIGHTS OF WAY
THROUGH CERTAIN PARKS, RESERVATIONS, AND OTHER PUBLIC LANDS,"  FN5
AUTHORIZES THE SECRETARY OF THE INTERIOR "TO PERMIT THE USE OF RIGHTS
OF WAY THROUGH THE PUBLIC LANDS, FOREST AND OTHER RESERVATIONS OF THE
UNITED STATES, AND THE YOSEMITE, SEQUOIA, AND GENERAL GRANT NATIONAL
PARKS, CALIFORNIA, FOR ELECTRICAL PLANTS, POLES, AND LINES FOR THE
GENERATION AND DISTRIBUTION OF ELECTRICAL POWER, AND FOR TELEPHONE AND
TELEGRAPH PURPOSES  ...  TO THE EXTENT OF  ...  NOT TO EXCEED FIFTY
FEET ON EACH SIDE OF THE CENTER LINE OF SUCH  ...  ELECTRICAL,
TELEGRAPH, AND TELEPHONE LINES AND POLES  ...  : PROVIDED, THAT SUCH
PERMITS SHALL BE ALLOWED WITHIN OR THROUGH ANY OF SAID PARKS OR ANY
FOREST, MILITARY, INDIAN, OR OTHER RESERVATION ONLY UPON THE APPROVAL
OF THE CHIEF OFFICER OF THE DEPARTMENT UNDER WHOSE SUPERVISION SUCH
PARK OR RESERVATION FALLS AND UPON A FINDING BY HIM THAT THE SAME IS
NOT INCOMPATIBLE WITH THE PUBLIC INTEREST:  PROVIDED FURTHER, THAT ALL
PERMITS GIVEN HEREUNDER FOR TELEGRAPH AND TELEPHONE PURPOSES SHALL BE
SUBJECT TO THE PROVISION OF TITLE SIXTY-FIVE OF THE REVISED STATUTES OF
THE UNITED STATES, AND AMENDMENTS THERETO, REGULATING RIGHTS OF WAY FOR
TELEGRAPH COMPANIES OVER THE PUBLIC DOMAIN:  AND PROVIDED FURTHER, THAT
ANY PERMISSION GIVEN BY THE SECRETARY OF THE INTERIOR UNDER THE
PROVISIONS OF THIS ACT MAY BE REVOKED BY HIM OR HIS SUCCESSOR IN HIS
DISCRETION, AND SHALL NOT BE HELD TO CONFER ANY RIGHT, OR EASEMENT, OR
INTEREST IN, TO, OR OVER ANY PUBLIC LAND, RESERVATION, OR PARK."  FN6 

FOR ALL PRESENT PURPOSES THE ACT OF MARCH 4, 1911 IS THE SAME AS THE
ABOVE ACT.  FN7 

NEITHER STATUTE MAKES ANY REFERENCE WHATEVER TO LANDS ALLOTTED TO
INDIANS IN WHICH THE UNITED STATES HOLDS TITLE IN TRUST ONLY TO PREVENT
IMPROVIDENT ALIENATION.  THEIR GENERAL TENOR AND PARTICULARLY THE
SECOND PROVISO OF THE ACT OF FEBRUARY 15, 1901, REPEL ANY INFERENCE
THAT THEY WERE INTENDED TO GOVERN THE GRANT OF RIGHTS OF WAY OVER SUCH
LANDS.  THE EFFECT OF THIS PROVISO WAS TO MAKE ANY TELEPHONE OR
TELEGRAPH COMPANY WHICH AVAILED ITSELF OF THE ACT SUBJECT, AS TO
GOVERNMENT BUSINESS, TO THE RATES SET BY THE POSTMASTER GENERAL, AND TO
MAKE "ALL THE  ...  LINES, PROPERTY, AND EFFECTS" OF SUCH A COMPANY
SUBJECT TO PURCHASE BY THE GOVERNMENT AT A VALUE TO BE ASCERTAINED BY
AN APPRAISAL OF FIVE PERSONS, TWO SELECTED BY THE POSTMASTER GENERAL,
TWO BY THE COMPANY, AND ONE BY THE FOUR SO CHOSEN.  FN8  IT IS RATHER
DIFFICULT TO BELIEVE THAT CONGRESS EVER INTENDED TO EXACT SUCH
CONDITIONS AS PART OF THE PRICE OF RUNNING A LINE ACROSS LAND IN WHICH
THE GOVERNMENT IS INTERESTED ONLY TO THE EXTENT OF HOLDING TITLE FOR
THE PROTECTION OF AN INDIVIDUAL INDIAN ALLOTTEE.  IT IS PARTICULARLY
DIFFICULT IN THE CONTEXT OF THE ACTS, FOR IF SUCH WERE THE INTENT IT
WAS DEFEATED BY GIVING AN OPTION TO OBTAIN THE SAME RIGHTS BY
CONDEMNATION UNDER STATE LAW AND FREE OF SUCH RESTRICTIONS.  SEC. 3 OF
THE ACT OF MARCH 3, 1901.  FN9 

THE GOVERNMENT SEEKS TO REPEL THE FORCE OF THESE IMPLICATIONS BY
ASSERTING THAT THE WORD "RESERVATION" AS EMPLOYED IN THESE ACTS
INCLUDES SUCH LAND. 

HIGHWAY "THROUGH ANY INDIAN RESERVATION OR THROUGH ANY LANDS WHICH HAVE
BEEN ALLOTTED IN SEVERALTY TO ANY INDIVIDUAL INDIANS UNDER ANY LAWS OR
TREATIES BUT WHICH HAVE NOT BEEN CONVEYED TO THE ALLOTTEES WITH FULL
POWER OF ALIENATION."  THE ACT IN SEC. 3 ALSO REFERS TO "LANDS ALLOTTED
IN SEVERALTY," AFTER ALREADY EMPLOYING THE WORD "RESERVATION."  IF IT
INCLUDED ALLOTTED LANDS WITHOUT THESE WORDS, CONGRESS WAS EMPLOYING
LANGUAGE TO NO DISCERNIBLE PURPOSE.  WE THINK CONGRESS EMPLOYED THIS
LANGUAGE IN THE ACT OF MARCH 3, 1901, TO A PURPOSE AND WITH A CLEAR
DISTINCTION BETWEEN RESERVATIONS AND ALLOTTED LANDS.  SECTION 3 MADE
ALLOTTED LANDS, BUT NOT RESERVATIONS, SUBJECT TO CONDEMNATION FOR ANY
PUBLIC PURPOSE; SEC. 4 MADE BOTH RESERVATIONS AND ALLOTTED LANDS
SUBJECT TO HIGHWAY PERMITS BY THE SECRETARY.  WE THINK THAT THE ALMOST
CONTEMPORANEOUS ACT OF FEBRUARY 15, 1901, IN AUTHORIZING PERMITS FOR
ELECTRIC COMPANIES THROUGH RESERVATIONS, BUT NOT ALLOTTED LANDS, MEANT
JUST WHAT IT SAID.    WE HAVE NO PURPOSE TO DECIDE ANYTHING MORE THAN
THE CASE BEFORE US.  WE DO NOT SAY THAT "RESERVATION" MAY NEVER INCLUDE
ALLOTTED LANDS; ALL WE HOLD IS THAT IF THERE IS A DISTINCTION IN FACT,
THAT DISTINCTION IS CARRIED INTO THE ACT.  SO WE TURN TO THE QUESTION
WHETHER THESE PARTICULAR ALLOTTED LANDS WERE IN FACT WITHIN OR WITHOUT
A "RESERVATION." 

SHE-PAH-THO-QUAH, THE ALLOTTEE, WAS OF THE KICKAPOO TRIBE.  IN
EARLIER TIMES THE KICKAPOO TRIBE OCCUPIED A TREATY RESERVATION IN
KANSAS.  FN10  THEY BECAME TORN BY INTERNAL DISSENSIONS.  ONE FACTION
REMAINED ON THE OLD RESERVATION IN KANSAS AND RECEIVED ALLOTMENTS
THERE.  FN11  OTHERS MIGRATED, CHIEFLY IN 1852 AND 1863, TO MEXICO AND
LOCATED ON A RESERVATION SET APART FOR THEM BY THAT GOVERNMENT.  THE
OKLAHOMA KICKAPOOS COMPRISE THOSE WHO LEFT MEXICO, MOSTLY IN 1873, AND
RETURNED TO THE UNITED STATES.  TEN YEARS LATER A RESERVATION WAS
ESTABLISHED FOR THEM BY EXECUTIVE ORDER IN WHAT WAS THEN INDIAN
TERRITORY, NOW OKLAHOMA.  UNITED STATES V. REILY, 290 U.S. 33, 35-36. 

IN 1891, HOWEVER, THESE RESTLESS PEOPLE NEGOTIATED A SALE OF THEIR
RESERVATION TO THE GOVERNMENT "EXCEPT THE COMMISSIONERS INSIST ON THE
INDIANS TAKING LANDS IN ALLOTMENT, WHILE THE INDIANS INSIST ON TAKING
AN EQUAL AMOUNT OF LAND AS A DIMINISHED RESERVATION, THE TITLE TO BE
HELD IN COMMON."  N12  THIS DISAGREEMENT WAS SUBMITTED TO THE SECRETARY
OF THE INTERIOR AND HE DECIDED THAT THE "INDIANS TAKE THEIR LANDS IN
ALLOTMENT AND NOT TO BE HELD IN COMMON."  FN13  THE KICKAPOO TRIBE
THEREUPON, ON SEPTEMBER 9, 1891 DID "CEDE, CONVEY, TRANSFER, AND
RELINQUISH, FOREVER, AND ABSOLUTELY, WITHOUT ANY RESERVATION WHATEVER,
ALL THEIR CLAIM, TITLE, AND INTEREST" TO THE RESERVATION LANDS.  FN14
IN CONSIDERATION EACH OF THE KICKAPOOS, ESTIMATED AT ABOUT 300 IN
NUMBER, WAS ALLOTTED 80 ACRES OF SUCH LAND WITH A PER CAPITA CASH
PAYMENT.  FN15  THE TRANSACTION WAS RATIFIED, AND CARRIED OUT ON THE
PART OF THE UNITED STATES AND THE LAND ACQUIRED BY THE UNITED STATES
WAS OPENED TO SETTLEMENT.  FN16  THUS, THE KICKAPOO RESERVATION WAS
OBLITERATED, THE TRIBAL LANDS WERE NO MORE, AND ONLY INDIVIDUAL
ALLOTMENTS SURVIVED.  WE THINK IT CLEAR THAT THE TERM "RESERVATION" AS
USED IN THE STATUTES IN QUESTION HAD NO APPLICATION TO SUCH LANDS. 

IT IS TRUE THAT THE OPINION IN UNITED STATES V. REILY, SUPRA, AT 35,
USED THE TERM "KICKAPOO RESERVATION" TO DESCRIBE A REGION OF OKLAHOMA
AS OF A TIME SUBSEQUENT TO THE DISSOLUTION.  IT IS CLEAR FROM THE
CONTEXT OF THE OPINION, HOWEVER, THAT THIS TERM WAS USED IN A
GEOGRAPHICAL AND NOT A LEGAL SENSE, MUCH AS ONE STILL SPEAKS OF THE
NORTHWEST TERRITORY.  CONGRESS HAS FREQUENTLY REFERRED TO THE "KICKAPOO
RESERVATION" IN KANSAS.  FN17  AND IT HAS OFTEN, USUALLY IN THE SAME
STATUTE, REFERRED TO THE KICKAPOO INDIANS OF OKLAHOMA; BUT NEVER SINCE
THE DISSOLUTION HAS IT REFERRED TO A KICKAPOO RESERVATION AS EXISTING
IN OKLAHOMA.  FN18  IF DESCRIPTIVE NOMENCLATURE HAS ANY WEIGHT IN THIS
CASE, WE THINK THAT THE USAGE OF CONGRESS PREPONDERATES. 

THE DISSOLUTION OF THE RESERVATION DISTINGUISHES THE SITUATION BEFORE
US FROM THAT BEFORE THE COURT RELATING TO ALLOTTED LANDS WITHIN THE
TULALIP RESERVATION, UNITED STATES V. CELESTINE, 215 U.S. 278; ALLOTTED
LANDS WITHIN THE YAKIMA RESERVATION, UNITED STATES V. SUTTON, 215 U.S.
291; THOSE WITHIN THE COLVILLE RESERVATION, UNITED STATES V. PELICAN,
232 U.S. 442; AND THE MANY SITUATIONS IN WHICH THE DEPARTMENTAL RULINGS
HAVE HELD THAT THE PHRASE "INDIAN, OR OTHER RESERVATION" INCLUDES
INDIVIDUAL ALLOTMENTS.  FN19 

ON THE ARGUMENT INQUIRY WAS MADE OF COUNSEL WHETHER A CONSISTENT
DEPARTMENTAL PRACTICE EXISTED IN REFERENCE TO GRANTS OF PERMISSION TO
ELECTRIC COMPANIES TO MAINTAIN LINES ALONG ESTABLISHED HIGHWAYS.  BOTH
HAVE CALLED ATTENTION TO A FEW INSTANCES OF APPLICATIONS AND GRANTS, OR
OF ASSURANCES NONE WERE NECESSARY, SAID TO FAVOR THEIR RESPECTIVE
POSITIONS.  FN20  WE FIND NO CONSISTENT DEPARTMENTAL PRACTICE WHICH CAN
BE SAID TO AMOUNT TO AN ADMINISTRATIVE CONSTRUCTION OF THE ACTS IN
QUESTION. 

THE JUDGMENT BELOW IS AFFIRMED. 

FN1  31 STAT. 1058, 1084, 25 U.S.C. SEC. 311. 

FN2  69 OKLAHOMA STAT. (1941) SEC. 57. 

FN3  31 STAT. 790, 43 U.S.C. SEC. 959; 36 STAT. 1235, 1253, 43 U.S.C.
SEC. 961.  THESE ARE SET OUT AND DISCUSSED INFRA, PP. 213 ET SEQ. 

FN4  GRAND RAPIDS & INDIANA R. CO. V. BUTLER, 159 U.S. 87; WHITAKER
V. MCBRIDE, 197 U.S. 510; OKLAHOMA V. TEXAS, 258 U.S. 574, 595-596; SEE
BREWER OIL CO. V. UNITED STATES, 260 U.S. 77, 88-89; UNITED STATES V.
OREGON, 295 U.S. 1, 28; CF. BOARD OF COMMISSIONERS V. UNITED STATES,
308 U.S. 343. 

FN5  H.R. REP. NO. 1850, 56TH CONG., 1ST SESS., INDICATES THAT THE
TITLE OF THE ACT, REFERRING TO PUBLIC LANDS, WAS ADVISEDLY CHOSEN. 

FN6  31 STAT. 790, 43 U.S.C. SEC. 959. 

FN7  36 STAT. 1235, 1253, 43 U.S.C. SEC. 961, PROVIDING: 

"THAT THE HEAD OF THE DEPARTMENT HAVING JURISDICTION OVER THE LANDS
BE, AND HE HEREBY IS, AUTHORIZED AND EMPOWERED, UNDER GENERAL
REGULATIONS TO BE FIXED BY HIM, TO GRANT AN EASEMENT FOR RIGHTS OF WAY,
FOR A PERIOD NOT EXCEEDING FIFTY YEARS FROM THE DATE OF THE ISSUANCE OF
SUCH GRANT, OVER, ACROSS, AND UPON THE PUBLIC LANDS, NATIONAL FORESTS,
AND RESERVATIONS OF THE UNITED STATES FOR ELECTRICAL POLES AND LINES
FOR THE TRANSMISSION AND DISTRIBUTION OF ELECTRICAL POWER, AND FOR
POLES AND LINES FOR TELEPHONE AND TELEGRAPH PURPOSES, TO THE EXTENT OF
TWENTY FEET ON EACH SIDE OF THE CENTER LINE OF SUCH ELECTRICAL,
TELEPHONE AND TELEGRAPH LINES AND POLES, TO ANY CITIZEN, ASSOCIATION,
OR CORPORATION OF THE UNITED STATES, WHERE IT IS INTENDED BY SUCH TO
EXERCISE THE RIGHT OF WAY HEREIN GRANTED FOR ANY ONE OR MORE OF THE
PURPOSES HEREIN NAMED:  PROVIDED, THAT SUCH RIGHT OF WAY SHALL BE
ALLOWED WITHIN OR THROUGH ANY NATIONAL PARK, NATIONAL FOREST, MILITARY,
INDIAN, OR ANY OTHER RESERVATION ONLY UPON THE APPROVAL OF THE CHIEF
OFFICER OF THE DEPARTMENT UNDER WHOSE SUPERVISION OR CONTROL SUCH
RESERVATION FALLS, AND UPON A FINDING BY HIM THAT THE SAME IS NOT
INCOMPATIBLE WITH THE PUBLIC INTEREST: PROVIDED, THAT ALL OR ANY PART
OF SUCH RIGHT OF WAY MAY BE FORFEITED AND ANNULLED BY DECLARATION OF
THE HEAD OF THE DEPARTMENT HAVING JURISDICTION OVER THE LANDS FOR
NONUSE FOR A PERIOD OF TWO YEARS OR FOR ABANDONMENT." 

SEE 40 L.D. 30, 31:  "IT WILL BE OBSERVED THAT THIS ACT, WHICH
AUTHORIZES THE GRANTING OF EASEMENTS FOR ELECTRICAL POWER TRANSMISSION,
AND TELEPHONE AND TELEGRAPH LINES FOR STATED PERIODS NOT TO EXCEED 50
YEARS, FOLLOWS, AS CLOSELY AS IS POSSIBLE IN THE ACCOMPLISHMENT OF ITS
PURPOSES, THE LANGUAGE OF THE ACT OF FEBRUARY 15, 1901(31 STAT., 790),
WHICH AUTHORIZES MERE REVOCABLE PERMITS OR LICENSES FOR SUCH LINES, AND
FOR OTHER PURPOSES.  THIS ACT, THEREFORE, MERELY AUTHORIZES ADDITIONAL
OR LARGER GRANTS AND DOES NOT MODIFY OR REPEAL THE ACT OF 1901, AND
SHOULD BE CONSTRUED AND APPLIED IN HARMONY WITH IT."  SEE ALSO, 46
CONG. REC. 4014-4015. 

FN8  COMP. STAT. (1901) SECS. 5266, 5267. 

FN9  31 STAT. 1083-1084, 25 U.S.C. SEC. 357. 

FN10  TREATIES OF OCTOBER 24, 1832, 7 STAT. 391; MAY 18, 1854, 10
STAT. 1078. 

FN11  TREATY OF JUNE 28, 1862, 13 STAT. 623. 

FN12  27 STAT. 560. 

FN13  27 STAT. 561. 

FN14  27 STAT. 557. 

FN15  27 STAT. 558-559. 

FN16  27 STAT. 562-563, 29 STAT. 868. 

FN17  28 STAT. 909; 30 STAT. 590, 909, 943; 33 STAT. 213, 1074, 1254;
35 STAT. 80, 791; 36 STAT. 275, 1064; 37 STAT. 524; 38 STAT. 87, 590;
39 STAT. 133, 977; 40 STAT. 571; 41 STAT. 13, 66, 419, 523; 42 STAT.
57. 

FN18  30 STAT. 77, 937; 33 STAT. 203, 1057; 34 STAT. 363, 1043; 35
STAT. 88, 802; 36 STAT. 280, 1069; 37 STAT. 529; 38 STAT. 93, 596; 39
STAT. 145, 982; 40 STAT. 578; 41 STAT. 20, 425, 1039, 1240; 42 STAT.
573, 1195; 43 STAT. 409, 708, 1160. 

FN19  27 L.D. 421; 35 L.D. 550; 40 L.D. 30; 42 L.D. 419; 45 L.D. 563;
49 L.D. 396; 51 L.D. 41. 

FN20  THE GOVERNMENT CALLS ATTENTION TO PERMITS GIVEN AS TO
ALLOTMENTS WITHIN THE YAKIMA AND COLVILLE RESERVATIONS, WHICH ARE
INAPPLICABLE UNDER OUR VIEW OF THE CASE.  ALSO TO ONE PERMIT TO THIS
RESPONDENT FOR A TRANSMISSION LINE ACROSS A KICKAPOO ALLOTMENT WITHIN
THE BOUNDARIES OF A PREVIOUSLY AUTHORIZED HIGHWAY AND ONE TO IT NOT
WITHIN A HIGHWAY.  RESPONDENT SETS UP CORRESPONDENCE IN 1922, 1927,
1929 AND 1930 CLAIMED TO INDICATE A CONTRARY PRACTICE.  NONE OF THIS
MATERIAL IS PART OF THE RECORD; AND IT IS INCOMPLETE, AND IN NO SENSE
SATISFACTORY ESTABLISHMENT OF A BASIS FOR ANY CONCLUSION. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS DISSENT. 
..END :




















C.J. HENDRY CO. V. MOORE, 318 U.S. 133 


NO. 60.  ARGUED NOVEMBER 10, 1942.  - DECIDED FEBRUARY 8, 1943.  - 18
CAL.2D 835, AFFIRMED. 


1.  FORFEITURE BY PROCEDURE IN REM OF A NET WHICH, WHILE BEING USED BY
A FISHING VESSEL IN NAVIGABLE COASTAL WATERS OF A STATE, HAD BEEN
SEIZED FOR VIOLATION OF A LAW OF THE STATE FORBIDDING FISHING BY NET IN
THOSE WATERS, IS "A COMMON LAW REMEDY" WHICH "THE COMMON LAW IS
COMPETENT TO GIVE," WITHIN THE STATUTORY EXCEPTION TO THE EXCLUSIVE
JURISDICTION IN ADMIRALTY CONFERRED ON DISTRICT COURTS OF THE UNITED
STATES BY SEC. 9 OF THE JUDICIARY ACT OF 1789, AND THE STATE MAY
PROVIDE FOR SUCH FORFEITURE IN A PROCEEDING IN A STATE COURT.  PP. 134,
153. 

2.  THE COMMON LAW, AS RECEIVED IN THIS COUNTRY AT THE TIME OF THE
ADOPTION OF THE CONSTITUTION, GAVE A REMEDY IN REM IN CASES OF
FORFEITURE.  P. 153. 

C.J. HENDRY CO. ET AL. V. MOORE ET AL., AS THE FISH AND GAME
COMMISSION OF CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

CERTIORARI, 316 U.S. 643, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
FORFEITURE OF A NET USED IN VIOLATION OF A STATE LAW. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE FISH AND GAME COMMISSION OF CALIFORNIA, HAVING SEIZED A PURSE NET
WHILE IT WAS BEING USED FOR FISHING IN THE NAVIGABLE WATERS OF THE
STATE IN VIOLATION OF THE STATE FISH AND GAME CODE, BROUGHT THE PRESENT
PROCEEDING UNDER SEC. 845 OF THE CODE FOR FORFEITURE OF THE NET.  THE
QUESTION FOR DECISION IS WHETHER THE STATE COURT'S JUDGMENT, DIRECTING
THAT THE NET BE FORFEITED AND ORDERING THE COMMISSION TO SELL OR
DESTROY IT, IS A "COMMON LAW REMEDY" WHICH THE "COMMON LAW IS COMPETENT
TO GIVE" WITHIN THE STATUTORY EXCEPTION TO THE EXCLUSIVE JURISDICTION
IN ADMIRALTY CONFERRED ON DISTRICT COURTS OF THE UNITED STATES BY SEC.
9 OF THE JUDICIARY ACT OF 1789, 1 STAT. 76-77, 28 U.S.C. SECS. 41(3)
AND 371(THIRD). 

USED IN VIOLATION OF THE PROVISIONS OF THE CODE IS A PUBLIC NUISANCE
AND MAKES IT THE DUTY OF ANY ARRESTING OFFICER TO SEIZE THE NET AND
REPORT ITS SEIZURE TO THE COMMISSION.  THE STATUTE REQUIRES THE
COMMISSION TO INSTITUTE PROCEEDINGS IN THE STATE SUPERIOR COURT FOR THE
FORFEITURE OF THE SEIZED NET AND AUTHORIZES THE COURT, AFTER A HEARING
AND DETERMINATION THAT THE NET WAS USED UNLAWFULLY, TO MAKE AN ORDER
FORFEITING IT AND DIRECTING THAT IT BE SOLD OR DESTROYED BY THE
COMMISSION. 

IN THIS CASE THE COMMISSION SEIZED THE NET WHILE IT WAS BEING USED BY
THE FISHING VESSEL RELIANCE IN NAVIGABLE COASTAL WATERS OF THE STATE IN
VIOLATION OF SECS. 89 AND 842, WHICH PROHIBIT FISHING BY NET IN THE
AREA IN QUESTION, AND RESPONDENTS, THE MEMBERS OF THE COMMISSION,
BROUGHT THIS PROCEEDING IN THE STATE SUPERIOR COURT FOR THE FORFEITURE
OF THE NET.  PETITIONERS APPEARED AS CLAIMANTS AND AFTER A TRIAL THE
COURT GAVE JUDGMENT THAT THE NET BE FORFEITED, ORDERING RESPONDENTS TO
SELL OR DESTROY IT.  THE SUPREME COURT OF CALIFORNIA AT FIRST SET THE
JUDGMENT ASIDE, BUT AFTER REHEARING AFFIRMED, 18 CAL.2D 835, 118 P.2D
1, HOLDING THAT THE REMEDY GIVEN BY THE JUDGMENT IS A "COMMON LAW
REMEDY" WHICH "THE COMMON LAW IS COMPETENT TO GIVE," AND THAT THE CASE
IS NOT WITHIN THE EXCLUSIVE JURISDICTION IN ADMIRALTY CONFERRED ON THE
FEDERAL COURTS BY THE JUDICIARY ACT AND HENCE WAS PROPERLY TRIED IN THE
STATE COURT.  CF. KNAPP, STOUT & CO. V. MCCAFFREY, 177 U.S. 638; THE
HAMILTON, 207 U.S. 398, 404; RED CROSS LINE V. ATLANTIC FRUIT CO., 264
U.S. 109, 123.  WE GRANTED CERTIORARI, 316 U.S. 643, THE QUESTION BEING
OF IMPORTANCE IN DEFINING THE JURISDICTION OF STATE COURTS IN RELATION
TO THE ADMIRALTY JURISDICTION. 

ONLY A SINGLE ISSUE IS PRESENTED BY THE RECORD AND BRIEFS - WHETHER
THE STATE IS PRECLUDED BY THE CONSTITUTION AND LAWS OF THE UNITED
STATES FROM ENTERTAINING THE PRESENT SUIT.  IT IS NOT QUESTIONED THAT
THE STATE HAS AUTHORITY TO REGULATE FISHING IN ITS NAVIGABLE WATERS,
MANCHESTER V. MASSACHUSETTS, 139 U.S. 240; LAWTON V. STEELE, 152 U.S.
133, 139; LEE V. NEW JERSEY, 207 U.S. 67; SKIRIOTES V. FLORIDA, 313
U.S. 69, 75; AND IT IS NOT DENIED THAT SEIZURE THERE OF A NET
APPURTENANT TO A FISHING VESSEL IS CONGNIZABLE IN ADMIRALTY.  BUT
PETITIONERS INSIST THAT THE PRESENT PROCEEDING IS NOT ONE WHICH CAN BE
ENTERTAINED BY A STATE COURT SINCE THE JUDGMENT IN REM FOR FORFEITURE
OF THE NET IS NOT A COMMON LAW REMEDY WHICH THE COMMON LAW IS COMPETENT
TO GIVE, AND THAT THE CASE IS THEREFORE NOT WITHIN THE STATUTORY
EXCEPTION TO THE EXCLUSIVE ADMIRALTY JURISDICTION OF THE FEDERAL
COURTS.  IN THIS POSTURE OF THE CASE, AND IN THE VIEW WE TAKE, WE FIND
IT NECESSARY TO CONSIDER ONLY THIS CONTENTION. 

ACT OF 1789, CONFERS EXCLUSIVE JURISDICTION ON THE FEDERAL COURTS "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  ...  "  A CHARACTERISTIC FEATURE OF THE
MARITIME LAW IS ITS USE OF THE PROCEDURE IN REM DERIVED FROM THE CIVIL
LAW, BY WHICH A LIBELLANT MAY PROCEED AGAINST THE VESSEL, NAMING HER AS
A DEFENDANT AND SEEKING A JUDGMENT SUBJECTING THE VESSEL, AND HENCE THE
INTERESTS OF ALL PERSONS IN HER, TO THE SATISFACTION OF THE ASSERTED
CLAIM.  SUITS IN REM AGAINST A VESSEL IN CASES OF MARITIME TORT AND FOR
THE ENFORCEMENT OF MARITIME LIENS ARE FAMILIAR EXAMPLES OF A PROCEDURE
BY WHICH A JUDGMENT IN REM IS SOUGHT, "GOOD AGAINST ALL THE WORLD." 

THE QUESTION WHETHER A MARITIME CAUSE OF ACTION CAN BE PROSECUTED IN
THE STATE COURTS BY SUCH A PROCEDURE WAS FIRST DISCUSSED BY THIS COURT
SEVENTY-SEVEN YEARS AFTER THE ADOPTION OF THE CONSTITUTION AND THE
JUDICIARY ACT, IN THE MOSES TAYLOR, 4 WALL.  411, WHICH HELD THAT A
LIEN UPON A VESSEL, CREATED BY STATE STATUTE, COULD NOT BE ENFORCED BY
A PROCEEDING IN REM IN THE STATE COURTS.  DECISION WAS RESTED ON THE
GROUND THAT EXCLUSIVE JURISDICTION OF THE SUIT WAS VESTED IN THE
FEDERAL COURTS BY THE JUDICIARY ACT, SINCE A JUDGMENT IN REM TO ENFORCE
A LIEN IS NOT A REMEDY WHICH THE COMMON LAW IS COMPETENT TO GIVE, A
RULING WHICH HAS SINCE BEEN CONSISTENTLY FOLLOWED.  THE HINE V. TREVOR,
4 WALL.  555; THE BELFAST, 7 WALL.  624; THE GLIDE, 167 U.S. 606; THE
ROBERT W. PARSONS, 191 U.S. 17, 36-38; ROUNDS V. CLOVERPORT FOUNDRY
CO., 237 U.S. 303, 307-08.  ELEVEN YEARS EARLIER THIS COURT IN SMITH V.
MARYLAND, 18 HOW.  71, WITHOUT DISCUSSION OF THE POINT NOW AT ISSUE,
HAD SUSTAINED THE SEIZURE AND FORFEITURE OF A VESSEL IN A STATE COURT
PROCEEDING IN REM, ALL PURSUANT TO STATE STATUTES, FOR VIOLATION OF A
MARYLAND FISHING LAW WITHIN THE NAVIGABLE WATERS OF THE STATE.  THE
COURT DECLARED THAT THE STATUTE, WHICH PRESCRIBED THE PROCEDURE IN REM
IN THE STATE COURT, CONFLICTED "NEITHER WITH THE ADMIRALTY JURISDICTION
OF ANY COURT OF THE UNITED STATES CONFERRED BY CONGRESS, NOR WITH ANY
LAW OF CONGRESS WHATEVER" (P. 76).  THE AUTHORITY OF THAT DECISION HAS
NEVER BEEN QUESTIONED BY THIS COURT. 

THE COMMON LAW AS IT WAS RECEIVED IN THE UNITED STATES AT THE TIME OF
THE ADOPTION OF THE CONSTITUTION DID NOT AFFORD A REMEDY IN REM IN
SUITS BETWEEN PRIVATE PERSONS.  HENCE THE ADOPTION OF THE SAVING CLAUSE
IN THE JUDICIARY ACT, AS THIS COURT HAS HELD IN THE CASES ALREADY
CITED, DID NOT WITHDRAW FROM THE EXCLUSIVE JURISDICTION OF ADMIRALTY
THAT CLASS OF CASES IN WHICH PRIVATE SUITORS SOUGHT TO ENFORCE THEIR
CLAIMS BY THE SEIZURE OF A VESSEL IN PROCEEDINGS IN REM.  BUT TO THE
GENERALIZATION THAT A JUDGMENT IN REM WAS NOT A COMMON LAW REMEDY THERE
IS AN IMPORTANT EXCEPTION.  FORFEITURE TO THE CROWN OF THE OFFENDING
OBJECT, BECAUSE IT HAD BEEN USED IN VIOLATION OF LAW, BY A PROCEDURE IN
REM WAS A PRACTICE FAMILIAR NOT ONLY TO THE ENGLISH ADMIRALTY COURTS
BUT TO THE COURT OF EXCHEQUER.  THE EXCHEQUER GAVE SUCH A REMEDY FOR
THE FORFEITURE OF ARTICLES SEIZED ON LAND FOR THE VIOLATION OF LAW. 
AND, CONCURRENTLY WITH THE ADMIRALTY, IT ENTERTAINED TRUE PROCEEDINGS
IN REM FOR THE FORFEITURE OF VESSELS FOR VIOLATIONS ON NAVIGABLE
WATERS.  FN1  SUCH SUITS IN THE EXCHEQUER WERE BEGUN ON INFORMATION AND
WERE AGAINST THE VESSEL OR ARTICLE TO BE CONDEMNED.  UNDER THE
PROVISIONS OF MANY STATUTES THE SUIT MIGHT BE BROUGHT BY AN INFORMER
QUI TAM, WHO WAS PERMITTED TO SHARE IN THE PROCEEDS OF THE FORFEITED
ARTICLE; THE JUDGMENT WAS OF FORFEITURE AND THE FORFEITED ARTICLE WAS
ORDERED TO BE SOLD.  THIS WAS THE ESTABLISHED PROCEDURE CERTAINLY AS
EARLY AS THE LATTER PART OF THE SEVENTEENTH CENTURY.  FN2  PROCEEDINGS
IN REM, CLOSELY PARALLELING THOSE IN THE EXCHEQUER, WERE ALSO
ENTERTAINED BY JUSTICES OF THE PEACE IN MANY FORFEITURE CASES ARISING
UNDER THE CUSTOMS LAWS (SEE HOON, THE ORGANIZATION OF THE ENGLISH
CUSTOMS SYSTEM, 1696-1786, PP. 277, 280-83), AND THE ACT OF 8 GEO. I,
C. 18, SEC. 16, PLACED WITHIN THAT JURISDICTION THE CONDEMNATION OF
VESSELS UP TO FIFTEEN TONS CHARGED WITH SMUGGLING. 

WHILE THE ENGLISH ACTS OF NAVIGATION AND TRADE AND NUMEROUS OTHER
FORFEITURE STATUTES CONFERRED JURISDICTION ON ALL THE ENGLISH COMMON
LAW COURTS OF RECORD  FN3  TO ENTERTAIN SUITS FOR FORFEITURE,
NEVERTHELESS SUITORS HAVING READY ACCESS TO THE CONVENIENT PROCEDURE OF
EXCHEQUER OR ADMIRALTY IN QUI TAM ACTIONS SEEM TO HAVE HAD LITTLE
OCCASION TO RESORT TO THE KING'S BENCH OR COMMON PLEAS.  IN THE
OCCASIONAL REPORTED FORFEITURE CASES BROUGHT IN KING'S BENCH, THE
ENGLISH REPORTS GIVE US LITTLE LIGHT ON THE PROCEDURE FOLLOWED OR THE
PRECISE FORM OF JUDGMENT ENTERED.  IN ONE CASE, ROBERTS V. WITHERED, 5
MOD. 193, 12 MOD. 92, THE COURT SEEMS TO HAVE ADAPTED THE COMMON LAW
ACTION OF DETINUE TO FORFEITURE CASES BY RESORT TO THE FICTION THAT
BRINGING THE ACTION WAS THE EQUIVALENT OF A SEIZURE WHICH VESTED THE
PROPERTY IN THE CROWN SO THAT A SUIT IN DETINUE OR REPLEVIN IN PERSONAM
TO GAIN POSSESSION WOULD LIE.  SEE STEPHEN, PLEADING (3RD AM. ED.)  PP.
47, 52, 69, 74; AMES, LECTURES ON LEGAL HISTORY, PP. 64, 71.  CF.
WILKINS V. DESPARD, 5 TERM REP. 112. 

SEPARATE COURTS EXERCISING THE JURISDICTION OF THE COURT OF EXCHEQUER
WERE NEVER ESTABLISHED IN THE AMERICAN COLONIES.  INSTEAD, THAT
JURISDICTION WAS ABSORBED BY THE COMMON LAW COURTS WHICH ENTERTAINED
SUITS FOR THE FORFEITURE OF PROPERTY UNDER ENGLISH OR LOCAL STATUTES
AUTHORIZING ITS CONDEMNATION.  LONG BEFORE THE ADOPTION OF THE
CONSTITUTION THE COMMON LAW COURTS IN THE COLONIES - AND LATER IN THE
STATES DURING THE PERIOD OF CONFEDERATION - WERE EXERCISING
JURISDICTION IN REM IN THE ENFORCEMENT OF FORFEITURE STATUTES.  LIKE
THE EXCHEQUER, IN CASES OF SEIZURE ON NAVIGABLE WATERS THEY EXERCISED A
JURISDICTION CONCURRENTLY WITH THE COURTS OF ADMIRALTY.  BUT THE VICE
ADMIRALTY COURTS IN THE COLONIES DID NOT BEGIN TO FUNCTION WITH ANY
REAL CONTINUITY UNTIL ABOUT 1700 OR SHORTLY AFTERWARD.  SEE ANDREWS,
VICE-ADMIRALTY COURTS IN THE COLONIES, IN RECORDS OF THE VICE-ADMIRALTY
COURT OF RHODE ISLAND, 1617-1752(ED. TOWLE, 1936), P. 1; ANDREWS, THE
COLONIAL PERIOD OF AMERICAN HISTORY, VOL. 4, CH. 8; HARPER, THE ENGLISH
NAVIGATION LAWS, CH. 15; OSGOOD, THE AMERICAN COLONIES IN THE 18TH
CENTURY, VOL. 1, PP. 185-222, 299-303.  BY THAT TIME, THE JURISDICTION
OF COMMON LAW COURTS TO CONDEMN SHIPS AND CARGOES FOR VIOLATION OF THE
NAVIGATION ACTS HAD BEEN FIRMLY ESTABLISHED, APPARENTLY WITHOUT
QUESTION, AND WAS REGULARLY EXERCISED THROUGHOUT THE COLONIES.  IN
GENERAL THE SUITS WERE BROUGHT AGAINST THE VESSEL OR ARTICLE TO BE
CONDEMNED, WERE TRIED BY JURY, CLOSELY FOLLOWED THE PROCEDURE IN
EXCHEQUER, AND IF SUCCESSFUL RESULTED IN JUDGMENTS OF FORFEITURE OR
CONDEMNATION WITH A PROVISION FOR SALE.  FN4 

THE RISE OF THE VICE-ADMIRALTY COURTS - PROMPTED IN PART BY THE
CROWN'S DESIRE TO HAVE ACCESS TO A FORUM NOT CONTROLLED BY THE
OBSTINATE RESISTANCE OF AMERICAN JURIES - DID NOT DIVEST THE COLONIAL
COMMON LAW COURTS OF THEIR JURISDICTION TO PROCEED IN REM IN CASES OF
FORFEITURE AND CONDEMNATION.  THE TRIAL RECORDS HAVE NOT YET BEEN MADE
AVAILABLE FOR ALL THE COLONIES, AND IN SOME INSTANCES PERHAPS CAN NEVER
BE.  BUT THERE IS NO REASON TO SUPPOSE THAT IN THIS RESPECT THE
JUDICIAL HISTORY OF FORFEITURE PROCEEDINGS IN NEW YORK, MANUSCRIPT
RECORDS OF WHICH WE HAVE EXAMINED, IS NOT TYPICAL OF THE OTHERS, AND
THERE IS AMPLE SUPPORT FOR THE CONCLUSION THAT IN THE SEABOARD STATES
FORFEITURE PROCEEDINGS IN REM, EXTENDING TO SEIZURES ON NAVIGABLE
WATERS OF THE STATE, WERE AN ESTABLISHED PROCEDURE OF THE COMMON LAW
COURTS BEFORE THE REVOLUTION.  IT WAS THE ADMIRALTY COURTS, NOT THE
COMMON LAW COURTS, WHICH HAD DIFFICULTY IN ESTABLISHING THEIR
JURISDICTION, ALTHOUGH IN 1759 THE BOARD OF TRADE WAS ABLE TO WRITE
THAT "WITH REGARD TO BREACHES OF THE LAW OF TRADE THEY ARE COGNIZABLE
EITHER IN THE COURTS OF COMMON LAW IN THE PLANTATIONS, OR IN THE COURTS
OF ADMIRALTY, WHICH HAVE IN SUCH CASES, IF NOT IN ALL, A CONCURRENT
JURISDICTION WITH THE COURTS OF COMMON LAW" (QUOTED IN ANDREWS, VICE
ADMIRALTY COURTS IN THE COLONIES, SUPRA, AT P. 7); AND STOKES REPORTED
THAT THE SAME SITUATION PREVAILED AT THE OUTBREAK OF THE REVOLUTION. 
SEE STOKES, A VIEW OF THE CONSTITUTION OF THE BRITISH COLONIES (1783),
PP. 270, 357 ET SEQ. 

IN NEW YORK, ADMIRALTY JURISDICTION WAS VESTED IN THE MAYOR'S COURT
IN 1678, AND THAT COURT CONTINUED TO EXERCISE JURISDICTION IN ALL
MARITIME CASES, INCLUDING THOSE ARISING UNDER THE NAVIGATION ACTS,
THROUGHOUT THE COLONIAL PERIOD EVEN AFTER THE ESTABLISHMENT OF A COURT
OF VICE-ADMIRALTY.  SEE SELECT CASES OF THE MAYOR'S COURT OF NEW YORK
CITY, 1674-1784(ED. MORRIS, 1935), PP. 39-40, 566 ET SEQ. BUT CASES OF
FORFEITURE WERE ALSO REGULARLY PROSECUTED BEFORE THE COMMON LAW COURTS
OF THE COLONY - IN THE GENERAL QUARTER SESSIONS OF THE PEACE IN NEW
YORK CITY DURING THE 1680S,  FN5  AND, AFTER THE REORGANIZATION OF THE
JUDICIARY IN 1691, IN THE SUPREME COURT OF JUDICATURE,  FN6  WHICH WAS
GIVEN JURISDICTION "OF ALL PLEAS, CIVILL CRIMINALL, AND MIXT, AS FULLY
& AMPLY TO ALL INTENTS & PURPOSES WHATSOEVER, AS THE COURTS OF KINGS
BENCH, COMMON PLEAS, & EXCHEQUER WITHIN THEIR MAJESTYES KINGDOME OF
ENGLAND, HAVE OR OUGHT TO HAVE," 1 COLONIAL LAWS OF NEW YORK (1894) P.
229.    THE NAVIGATION ACTS DID NOT CONSTITUTE THE ONLY AUTHORITY FOR
FORFEITURE PROCEEDINGS IN THE COMMON LAW COURTS.  NEW YORK'S OWN
COLONIAL LEGISLATION SHOWS FREQUENT USE OF THE FORFEITURE SANCTION,
APPLIED SOMETIMES TO VESSELS AS WELL AS TO COMMODITIES, AS A MEANS OF
ENFORCEMENT OF PROVINCIAL LAWS FIXING CUSTOMS DUTIES, REGULATING OR
PROHIBITING THE EXPORTATION OR IMPORTATION OF COMMODITIES, OR REQUIRING
A SPECIFIED MANNER OF MARKING, STORING OR SELLING.  FN7  A COMMON
PROVISION IN THESE STATUTES WAS THAT THE FORFEITURES IMPOSED MIGHT BE
PROSECUTED IN ANY COURT OF RECORD IN THE COLONY. 

THE RECORDS OF THE NEW YORK SUPREME COURT OF JUDICATURE CONTAIN
NUMEROUS INSTANCES OF FORFEITURE PROCEEDINGS DURING THE EIGHTEENTH
CENTURY.  ONE IS HAMMOND QUI TAM V. SLOOP CAROLINA,  FN8  A PROSECUTION
IN 1735 FOR A FALSE CUSTOMS CERTIFICATE, WHICH RESULTED IN THE
DISCHARGE OF THE SHIP AND HER CARGO FOR FAILURE OF PROOF.  LATER CASES
SHOW MORE IN DETAIL HOW CLOSELY THAT COURT'S PROCEDURE IN FORFEITURE
CASES FOLLOWED THE ESSENTIALS OF THE PROCEDURE IN REM WHICH HAD BEEN
DEVELOPED IN THE ENGLISH EXCHEQUER N9.  NOR DID THE CREATION OF A STATE
COURT OF ADMIRALTY AFTER THE REVOLUTION EFFECT A WITHDRAWAL OF SUCH
JURISDICTION FROM THE COMMON LAW COURTS.  STATUTES ENACTED IN NEW YORK
DURING THE PERIOD OF THE CONFEDERATION, LIKE THE ENGLISH AND LOCAL
LEGISLATION WHICH PRECEDED THEM, CONTINUED TO EMPLOY FORFEITURE AS A
SANCTION,  FN10  AND FORFEITURE PROCEEDINGS CONTINUED TO BE BROUGHT IN
THE SUPREME COURT AND OTHER COMMON LAW TRIBUNALS.  FN11 THE ACT OF
APRIL 11, 1787, 2 LAWS OF NEW YORK 509, 517, IMPOSING IMPORT DUTIES,
PROVIDED THAT "ALL SHIPS AND VESSELS, GOODS AND MERCHANDIZE WHICH SHALL
BECOME FORFEITED BY VIRTUE OF THIS ACT, SHALL BE PROSECUTED BY THE
COLLECTOR, OR OFFICER OR OTHER PERSON WHO SHALL SEIZE THE SAME, BY
INFORMATION IN THE COURT OF ADMIRALTY,  FN12  OR IN THE COURT OF
EXCHEQUER,  FN13  OR IN ANY MAYORS COURT OR COURT OF COMMON PLEAS IN
THIS STATE, IN ORDER TO CONDEMNATION THEREOF."  THERE WAS PROVISION FOR
PROCLAMATIONS TO BE MADE "IN THE ACCUSTOMED MANNER," WITH DETAILED
SPECIFICATION OF THE METHODS OF MAKING AN APPRAISAL AND PROCEEDING TO
JUDGMENT, AND A FURTHER PROVISION (P. 518) LEAVING IT TO THE DISCRETION
OF THE COLLECTOR OF THE PORT OF NEW YORK OR THE ATTORNEY GENERAL "TO
DIRECT IN WHICH OF THE COURTS AFORESAID ANY INFORMATION SHALL BE
BROUGHT TOUCHING SUCH FORFEITURE." 

IN PENNSYLVANIA WE HAVE A RECORD OF A SIMILAR EXERCISE OF
JURISDICTION IN 1787 BY THE PHILADELPHIA COURT OF COMMON PLEAS IN PHILE
QUI TAM V. THE SHIP ANNA, 1 DALL.  197, WHERE THE JURY CONDEMNED THE
SHIP.  FN14 

EXAMINATION OF THE LEGISLATIVE HISTORY OF THE JUDICIARY ACT OF 1789
DOES NOT DISCLOSE PRECISELY WHAT ITS FRAMERS HAD IN MIND WHEN IN SEC. 9
THEY USED THE PHRASE "COMMON LAW REMEDY."  BUT IT IS UNLIKELY THAT, IN
SELECTING THIS PHRASE AS THE MEANS OF MARKING THE BOUNDARY OF THE
JURISDICTION OF STATE COURTS OVER MATTERS WHICH MIGHT OTHERWISE BE
WITHIN THE EXCLUSIVE JURISDICTION OF ADMIRALTY, THE DRAFTSMEN OF SEC. 9
INTENDED TO WITHDRAW FROM THE STATE COURTS A JURISDICTION AND REMEDY IN
FORFEITURE CASES WHICH HAD BEEN SO GENERALLY APPLIED BY NON-ADMIRALTY
COURTS BOTH IN ENGLAND AND AMERICA, AND WHICH HAD BECOME A RECOGNIZED
PART OF THE COMMON LAW SYSTEM AS DEVELOPED IN ENGLAND AND RECEIVED IN
THIS COUNTRY LONG BEFORE THE AMERICAN REVOLUTION.  NOR CAN WE ACCEPT
THE SUGGESTION THAT CONGRESS, IN THIS USE OF THE PHRASE "COMMON LAW
REMEDY," WAS HARKING BACK SOME HUNDREDS OF YEARS TO A PERIOD BEFORE THE
EXCHEQUER HAD TAKEN ITS PLACE AS ONE OF THE THREE GREAT COURTS
ADMINISTERING THE COMMON LAW, AND WAS LIKEWISE DISREGARDING THE
EXPERIENCE OF THE COMMON LAW COURTS IN AMERICA WITH WHICH IT WAS
FAMILIAR - ALL WITHOUT ANY INDICATION OF SUCH A PURPOSE. 
CONSIDERATIONS OF PRACTICAL CONVENIENCE IN THE CONDUCT OF FORFEITURE
PROCEEDINGS FOR VIOLATIONS OF LOCAL STATUTES OCCURRING ON STATE WATERS,
AS WELL AS THE CONTEMPORARY AND LATER HISTORY OF THE EXERCISE OF THE
ADMIRALTY JURISDICTION, INDICATE THAT THERE WAS NO PURPOSE TO LIMIT
SUCH PROCEEDINGS TO THE EXCLUSIVE JURISDICTION OF THE ADMIRALTY. 

SHORTLY AFTER THE ADOPTION OF THE CONSTITUTION, STATE LEGISLATION WAS
ENACTED REGULATING STATE TIDAL WATERS AND AUTHORIZING FORFEITURE IN THE
STATE COURTS OF FISH NETS AND VESSELS ILLEGALLY USED IN FISHING THERE. 
SUCH A STATUTE WAS CONSIDERED IN 1823 IN CORFIELD V. CORYELL, 4 WASH.
C.C. 371, FED. CAS. NO. 3230, (CITED IN SMITH V. MARYLAND, SUPRA, 18
HOW.  AT 75), WHERE A NEW JERSEY STATE COURT FORFEITURE OF A VESSEL
UNDER A STATUTE REGULATING THE DELAWARE BAY WAS UPHELD AS
CONSTITUTIONAL BY JUSTICE WASHINGTON, WITHOUT QUESTION OF THE STATE
COURT'S JURISDICTION BECAUSE OF THE IN REM NATURE OF THE PROCEEDING. 
NO SUGGESTION IS TO BE FOUND IN THAT CASE OR ELSEWHERE THAT THE
JUDICIARY ACT STRUCK DOWN THE LARGE BODY OF STATE LEGISLATION, ENACTED
SHORTLY AFTER 1789, WHICH PROVIDED FOR THE FORFEITURE IN STATE COURTS
OF VESSELS OR NETS SEIZED IN NAVIGABLE WATERS OF A STATE FOR VIOLATING
STATE FISHING LAWS.  FN15  AND SUCH LEGISLATION HAS BECOME ROOTED IN
THE LAW ENFORCEMENT PROGRAMS OF ABOUT HALF THE STATES,  FN16  WITHOUT
INTIMATION FROM THIS OR ANY OTHER COURT THAT THE JUDICIARY ACT
PROHIBITED IT.  SEE BOGGS V. COMMONWEALTH, 76 VA. 989, 993-96; DIZE V.
LLOYD, 36 F. 651, 652-53; JOHNSON V. LOPER, 46 N.J.L. 321; BRADFORD V.
DELUCA, 90 N.J.L. 434, 103 A. 692; DOOLAN V. THE GREYHOUND, 79 CONN.
697, 66 A. 511; ELY V. BUGBEE, 90 CONN. 584, 98 A. 121; STATE V. UMAKI,
103 WASH. 232, 174 P. 447; STATE V. MAVRIKAS, 148 WASH. 651, 269 P.
805; OSBORN V. CHARLEVOIX, 114 MICH. 655, 663-66, 72 N.W. 982. 

IT IS NOTEWORTHY THAT BLACKSTONE'S COMMENTARIES, MORE READ IN AMERICA
BEFORE THE REVOLUTION THAN ANY OTHER LAW BOOK, REFERRED TO THE
INFORMATION IN REM IN THE COURT OF EXCHEQUER AS THE PROCEDURE BY WHICH
FORFEITURES WERE INFLICTED FOR VIOLATION OF ACTS OF PARLIAMENT.  BK.
III, P. 262.  AND KENT, IN HIS COMMENTARIES, POINTED OUT THAT
"SEIZURES, IN ENGLAND, FOR VIOLATION OF THE LAWS OF REVENUE, TRADE OR
NAVIGATION, WERE TRIED BY A JURY IN THE COURT OF EXCHEQUER, ACCORDING
TO THE COURSE OF THE COMMON LAW; AND THOUGH A PROCEEDING BE IN REM, IT
IS NOT NECESSARILY A PROCEEDING OR CAUSE IN THE ADMIRALTY" (12TH ED.,
VOL. 1, P. 374).  HE DECLARED THAT, WITHIN THE MEANING OF SEC. 9 OF THE
JUDICIARY ACT, THE COMMON LAW WAS COMPETENT TO GIVE SUCH A REMEDY
"BECAUSE, UNDER THE VIGOROUS SYSTEM OF THE ENGLISH LAW, SUCH
PROSECUTIONS IN REM ARE IN THE EXCHEQUER, ACCORDING TO THE COURSE OF
THE COMMON LAW" (P. 376). 

UPON THE ADOPTION OF THE CONSTITUTION THE NATIONAL GOVERNMENT TOOK
OVER THE REGULATION OF TRADE, NAVIGATION AND CUSTOMS DUTIES WHICH HAD
BEEN PROLIFIC SOURCES OF FORFEITURE PROCEEDINGS IN THE STATE COURTS. 
THIS COURT IN SUITS BROUGHT IN ADMIRALTY SUSTAINED THE ADMIRALTY
JURISDICTION OVER FORFEITURES PRESCRIBED BY CONGRESS FOR THE VIOLATION
OF FEDERAL REVENUE AND OTHER LAWS WHERE THE SEIZURE HAD OCCURRED ON
NAVIGABLE WATERS.  UNITED STATES V. LA VENGEANCE, 3 DALL.  297; UNITED
STATES V. SCHOONER SALLY, 2 CRANCH 406; UNITED STATES V. SCHOONER
BETSEY AND CHARLOTTE, 4 CRANCH 443; WHELAN V. UNITED STATES, 7 CRANCH
112; THE SAMUEL, 1 WHEAT.  9.  THOSE DECISIONS HELD THAT WHEN THE
SEIZURE OCCURRED ON NAVIGABLE WATERS THE CAUSE WAS MARITIME AND HENCE
TRIABLE WITHOUT A JURY IN THE FEDERAL COURTS.  FN17  BUT THEY OBVIOUSLY
DID NOT DETERMINE, AND THERE WAS NO OCCASION TO DETERMINE, WHETHER
FORFEITURE PROCEEDINGS BELONGED IN THE CATEGORY OF MARITIME CAUSES THAT
MIGHT ALSO BE TRIED IN STATE COURTS BECAUSE, WITHIN THE MEANING OF THE
SAVING CLAUSE, THE COMMON LAW WAS COMPETENT TO GIVE THE REMEDY. 

THE COURT HAS NEVER HELD OR SAID THAT THE ADMIRALTY JURISDICTION IN A
FORFEITURE CASE IS EXCLUSIVE, AND IT HAS REPEATEDLY DECLARED THAT, IN
CASES OF FORFEITURE OF ARTICLES SEIZED ON LAND FOR VIOLATION OF FEDERAL
STATUTES, THE DISTRICT COURTS PROCEED AS COURTS OF COMMON LAW ACCORDING
TO THE COURSE OF THE EXCHEQUER ON INFORMATIONS IN REM WITH TRIAL BY
JURY.  THE SARAH, 8 WHEAT.  391, 396, N. A; 443 CANS OF EGG PRODUCT V.
UNITED STATES, 226 U.S. 172, AND CASES CITED.  IN UNITED STATES V. 422
CASKS OF WINE, 1 PET. 547, JUSTICE STORY DEFINED SUCH AN ACTION AS A
LIBEL OR INFORMATION IN REM ON THE EXCHEQUER SIDE OF THE COURT.  AND
SEE CHIEF JUSTICE MARSHALL'S REFERENCE, IN SCHOONER HOPPET V. UNITED
STATES, 7 CRANCH 389, 393, TO "PROCEEDINGS IN COURTS OF COMMON LAW,
EITHER AGAINST THE PERSON OR THE THING, FOR PENALTIES OR FORFEITURES." 
IN ALL THIS WE PERCEIVE A COMMON UNDERSTANDING OF JUDGES, LAWYERS AND
TEXT WRITERS, BOTH BEFORE AND AFTER THE ADOPTION OF THE CONSTITUTION,
OF THE COMMON LAW NATURE OF THE PROCEDURE AND JUDGMENT IN REM IN
FORFEITURE CASES AND OF ITS USE IN SUCH PROCEEDINGS IN THE EXCHEQUER
AND IN THE AMERICAN COMMON LAW COURTS. 

WE CONCLUDE THAT THE COMMON LAW AS RECEIVED IN THIS COUNTRY AT THE
TIME OF THE ADOPTION OF THE CONSTITUTION GAVE A REMEDY IN REM IN CASES
OF FORFEITURE, AND THAT IT IS A "COMMON LAW REMEDY" AND ONE WHICH "THE
COMMON LAW IS COMPETENT TO GIVE" WITHIN THE MEANING OF SEC. 9 OF THE
JUDICIARY ACT OF 1789.  BY THAT ACT THE STATES WERE LEFT FREE TO
PROVIDE SUCH A REMEDY IN FORFEITURE CASES WHERE THE ARTICLES ARE SEIZED
UPON NAVIGABLE WATERS OF THE STATE FOR VIOLATION OF STATE LAW.  IT
FOLLOWS THAT SMITH V. MARYLAND, SUPRA, WAS RIGHTLY DECIDED AND IS NOT
IN CONFLICT WITH THE MOSES TAYLOR, SUPRA, AND CASES FOLLOWING IT, AND
THAT THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA SHOULD BE
AFFIRMED. 

FN1  WE ARE NOT CONCERNED HERE WITH THE QUESTION WHETHER THE
ADMIRALTY JURISDICTION WAS FULLY CONCURRENT WITH THAT OF THE EXCHEQUER
EVEN IN THE CASE OF SEIZURES ON NAVIGABLE WATERS.  DURING THE HISTORIC
STRUGGLE BETWEEN THE ADMIRALTY AND THE COMMON LAW COURTS, THE LATTER
SOUGHT, WITH VARYING SUCCESS, TO RESTRICT THE ADMIRALTY JURISDICTION TO
THE HIGH SEAS AND TO EXCLUDE IT FROM HARBORS, ESTUARIES, AND OTHER ARMS
OF THE SEA.  SEE JUSTICE STORY'S ELABORATE DISCUSSION IN DELOVIO V.
BOIT, 2 GALL.  398, ESPECIALLY AT 425 ET SEQ.; WARING V. CLARKE, 5
HOW.  441; MEARS, THE HISTORY OF THE ADMIRALTY JURISDICTION, IN 2
SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY, P. 312, ESPECIALLY PP.
353, ET SEQ.; ROSCOE'S ADMIRALTY PRACTICE (5TH ED.), PP. 4-15; MARSDEN,
INTRODUCTION, 2 SELECT PLEAS IN THE COURT OF ADMIRALTY (11 SELDEN SOC.
PUBL.); MARSDEN, LAW AND CUSTOM OF THE SEA, VOL. 2, PP. VII-XXII. 
COMPARE HOON, THE ORGANIZATION OF THE ENGLISH CUSTOMS SYSTEM 1696-1786,
P. 276. 

FN2  BLACKSTONE, COMMENTARIES, BK. III, P. 262; SIR GEOFFREY GILBERT,
A TREATISE ON THE COURT OF EXCHEQUER (1758) PP. 180-91; "B.Y.", MODERN
PRACTICE OF THE COURT OF EXCHEQUER (1730) PP. 139-50; HALE, TREATISE,
PRINTED IN HARGRAVE'S LAW TRACTS (1787), VOL. 1, PP. 226-27.  SEE ALSO
HARPER, THE ENGLISH NAVIGATION LAWS, CH. 10; HOON, THE ORGANIZATION OF
THE ENGLISH CUSTOMS SYSTEM 1696-1786, CH. 8. 

FOR SOME 18TH CENTURY CASES IN THE EXCHEQUER INVOLVING THE
CONDEMNATION OF SHIPS, SEE IDLE QUI TAM V. VANHECK, BUNB.  230;
ATTORNEY GENERAL V. JACKSON, ID. 236; SCOTT QUI TAM V. A'CHEZ, PARK. 
21; MITCHELL QUI TAM V. TORUP, ID. 227; ATTORNEY GENERAL V. LE
MERCHANT, 1 ANSTR.  52; ATTORNEY GENERAL V. APPLEBY, 3 ANSTR.  863. 
SEE ALSO CASES REFERRED TO IN MASTERSON, JURISDICTION IN MARGINAL SEAS,
PP. 42, 68-71; REEVES, LAW OF SHIPPING AND NAVIGATION (2D ED. 1807) PP.
197-208. 

FN3  STATUTORY PROVISION FOR THE FORFEITURE OF NETS OR BOATS USED IN
UNLAWFUL FISHING MAY BE FOUND AS EARLY AS 1285, ACT OF 13 EDW.  I, C.
47.  SEE ALSO 1 ELIZ.  C. 17; 3 JAC.  I, C. 12; 13 & 14 CAR.  II, C.
28; 15 CAR.  II, C. 16, SEC. 1(5), (8); 1 GEO. I, C. 18.  THE ACT OF 15
CAR.  II, C. 16, SEC. 1(8), PROVIDED FOR THE FORFEITURE OF SEINES OR
NETS USED IN NEWFOUNDLAND HARBORS, TO BE RECOVERED "IN ANY OF HIS
MAJESTY'S COURTS IN NEWFOUNDLAND, OR IN ANY COURT OF RECORD IN ENGLAND
OR WALES." 

THE NAVIGATION ACTS COMMONLY PROVIDED THAT A FORFEITURE PROCEEDING
MIGHT BE BROUGHT, IN ADDITION TO OTHERS, "IN ANY COURT OF RECORD,"
E.G., 12 CAR.  II, C. 18, SECS. 1, 3, 6, 18, OR "IN ANY OF HIS
MAJESTY'S COURTS OF RECORD AT WESTMINSTER," 8 GEO. I, C. 18, SEC. 23; 6
GEO. II, C. 13, SEC. 4.  SOME ACTS INCLUDED AS THE PLACE FOR SUCH SUITS
"ANY COURT OF ADMIRALTY  ...  OR  ...  ANY COURT OF RECORD" IN THE
AMERICAN COLONIES OR PLANTATIONS.  E.G., 6 GEO. II, C. 13, SEC. 3; 4
GEO. III, C. 15, SEC. 41.  THE IMPORTANT ACT OF 1696(7 & 8 WM. III, C.
22, SEC. 2) PROVIDED THAT FORFEITURES OF SHIPS AND GOODS MIGHT BE
ENFORCED "IN ANY OF HIS MAJESTY'S COURTS OF RECORD AT WESTMINSTER, OR
IN ANY COURT IN HIS MAJESTY'S PLANTATIONS, WHERE SUCH OFFENCE SHALL BE
COMMITTED." 

FN4  VIRGINIA:  IN THE 1670S FORFEITURES UNDER THE NAVIGATION ACTS
WERE DECLARED BY THE COUNCIL.  SEE MINUTES OF THE COUNCIL AND GENERAL
COURT OF COLONIAL VIRGINIA, 1622-1632 AND 1670-1676(ED. MCILWAINE,
1924), PP. 212, 214, 216, 242-44, 445-46.  BUT BY THE 1690S SUCH CASES
WERE TRIED AT COMMON LAW IN THE GENERAL COURT BEFORE A JURY.  ALTHOUGH
THE RECORDS OF THE GENERAL COURT WERE DESTROYED BY FIRE DURING THE
EVACUATION OF RICHMOND IN 1865, COPIES OF SOME OF ITS MORE IMPORTANT
PROCEEDINGS DURING THE 1690S, CONTEMPORANEOUSLY TRANSMITTED TO ENGLAND,
HAVE BEEN PRESERVED, AND ARE REPRINTED IN EXECUTIVE JOURNALS OF THE
COUNCIL OF COLONIAL VIRGINIA (ED. MCILWAINE, 1925), VOL. I. SEE THE
CASES OF THE ANNE & CATHERINE, PP. 173-75; THE WILLIAM & MARY, PP. 241
43; THE CONTENT, PP. 379-80; COLE V. THREE PIPES OF BRANDY, PP. 204-05;
CF. THE CRANE, PP. 233-34, 300; THE CATHERINE, PP. 263-64; THE SOCIETY,
PP. 196-97, 219, 235-36, 252-53.  SEE ALSO THE CASES OF THE ELEZABETH
AND THE MARY & ELLERY, IN EDWARD RANDOLPH, INCLUDING HIS LETTERS AND
OFFICIAL PAPERS (ED. TOPPAN, 1899), VOL. 5, P. 139; THE CROWN,
CONDEMNED BY A JURY AT A SPECIAL COURT IN 1687, 12 VA. MAG.  OF HIST. &
BIOG.  189.  THE GOVERNOR EXERCISED A POWER TO COMMISSION A SPECIAL
ADMIRALTY COURT IN THE CASE OF A PRIZE (THE ST. IGNACE, EXEC. J., VOL.
I, PP. 366-67, 368-69), BUT APPARENTLY NOT FOR CONDEMNATION CASES UNDER
THE ACTS OF NAVIGATION.  AN ADMIRALTY COURT, FOR VIRGINIA AND NORTH
CAROLINA, WAS ESTABLISHED IN 1698.  ID., P. 379; CHITWOOD, JUSTICE IN
COLONIAL VIRGINIA, PP. 71-73.    MARYLAND:  A COMMISSION FOR A SPECIAL
COURT OF ADMIRALTY TO TRY FORFEITURE CASES UNDER THE NAVIGATION ACTS
FOR A LIMITED PERIOD OF TIME IS TO BE FOUND AS EARLY AS 1684, 17
ARCHIVES OF MARYLAND 360-62, (CF. 20 ID. 72, 75, 165), SOME ADMIRALTY
JURISDICTION HAVING PREVIOUSLY BEEN EXERCISED BY THE PROVINCIAL COURT,
49 ARCHIVES XV, XXI-XXIII.  BUT FORFEITURE CASES WERE TRIED GENERALLY
AT COURTS OF OYER AND TERMINER, ACTING WITH A JURY.  SEE ANDREWS, VICE
ADMIRALTY COURTS IN THE COLONIES, SUPRA, P. 8, N. 2; 57 ARCHIVES LVII;
MORRISS, COLONIAL TRADE OF MARYLAND 1689-1715, PP. 121-22; CASE OF THE
JOHN, 1687, 8 ARCHIVES 9; THE PROVIDENCE, 1692, 13 ID. 320, 327(SEE
ALSO EDWARD RANDOLPH, VOL. 5, P. 139); THE ANN OF NEW CASTLE, 1692, 8
ARCHIVES 445-47; THE MARGARET, 1692, 8 ID. 489-91, AND AGAIN IN 1694,
20 ID. 42-43, 65, 142, 184.  THE ANN OF MARYLAND WAS ACQUITTED AT A
SPECIAL COURT OF OYER AND TERMINER IN 1694; SHE WAS TRIED BEFORE THE
PROVINCIAL COURT LATER THE SAME YEAR AND ACQUITTED BY THE JURY; THE
JUDGMENT WAS REVERSED ON APPEAL IN MAY 1695; UPON A SECOND TRIAL IN THE
PROVINCIAL COURT ON A NEW INFORMATION THE JURY AGAIN ACQUITTED HER IN
AUGUST 1695, BUT THE PROCEEDINGS ON THE SECOND APPEAL ARE INCOMPLETE. 
PROCEEDINGS OF THE MARYLAND COURT OF APPEALS 1695-1729(ED. BOND, 1933),
PP. XLVII-XLVIII, 7-12, 22-24, 647-53; 20 ARCHIVES 64, 128-30, 155,
181, 188, 243-44, 438-45, 461; EDWARD RANDOLPH, VOL. 5, P. 139.  THE
ANNA HELENA WAS ACQUITTED BY A JURY IN THE PROVINCIAL COURT, 1694, 20
ARCHIVES 134, 180-81, 383-85.  SEE ALSO THE FULL REPORT OF BLACKISTON
QUI TAM V. CARROLL, 1692, IN PROC. MD. CT. OF APP., PP. 29-41, WHERE
THE JUDGMENT UPON A JURY'S VERDICT CONDEMNING SOME CASKS OF BEER IN THE
COURT OF OYER AND TERMINER (P. 34) WAS REVERSED ON APPEAL (P. 40). 
COMPARE THE CHARLES, 1696, 23 ARCHIVES 3. 

MASSACHUSETTS:  LIKE THE NEW YORK MAYOR'S COURT, THE MASSACHUSETTS
COURT OF ASSISTANTS WAS INVESTED WITH ADMIRALTY JURISDICTION AND IT WAS
AUTHORIZED TO DISPENSE WITH JURY TRIAL IN SUCH CASES.  SEE CRUMP,
COLONIAL ADMIRALTY JURISDICTION IN THE SEVENTEENTH CENTURY, CH. 3;
NOBLE, ADMIRALTY JURISDICTION IN MASSACHUSETTS, 8 PUBL.  COLONIAL
SOCIETY OF MASS., 150, 154-57; DAVIS, HISTORY OF THE JUDICIARY OF
MASSACHUSETTS, P. 75; ARGUMENT OF COUNSEL IN INSURANCE CO. V. DUNHAM,
11 WALL.  1, 8-9.  FORFEITURE CASES UNDER THE NAVIGATION ACTS WERE,
HOWEVER, REGULARLY TRIED BY THAT COURT BEFORE JURIES, APPARENTLY IN THE
SAME MANNER AS OTHER COMMON LAW CASES.  RECORDS OF THE COURT OF
ASSISTANTS OF THE COLONY OF THE MASSACHUSETTS BAY, 1630-1692(ED. NOBLE,
1901), VOL. 1, PP. 149, 150, 160, 168, 169, 170-71, 175-77, 209-10,
219, 230-31, 342-44, 355-56; AND ESPECIALLY PP. 219-20, 349, 366, FOUR
CASES - THE SWALLOW, THE NEWBERY, THE TWO BROTHERS, AND THE MARY - OF
TRIALS DE NOVO BEFORE A JURY ON APPEAL FROM THE COUNTY COURT, WHICH IS
NOT KNOWN TO HAVE BEEN INVESTED WITH ANY ADMIRALTY JURISDICTION.  THE
PRIVY COUNCIL UPHELD AN APPEAL IN THE CASE OF THE TWO BROTHERS,
ORDERING THE SHIP FORFEITED, BUT AFFIRMED THE JUDGMENT OF THE COURT OF
ASSISTANTS RELEASING THE MARY, 2 ACTS OF THE PRIVY COUNCIL, COLONIAL,
NO. 480.  SEE EDWARD RANDOLPH, VOLS.  1-7; PASSIM; CRUMP, SUPRA, 140
44. 

NEW JERSEY:  FULL RECORDS OF SEVERAL CONDEMNATION PROCEEDINGS WILL BE
FOUND IN JOURNAL OF THE COURTS OF COMMON RIGHT AND CHANCERY OF EAST NEW
JERSEY, 1683-1702(ED. EDSALL, 1937).  SEE INTRODUCTION, PP. 133-37; THE
THOMAS AND BENJAMIN, CONDEMNED ON CONFESSION OF JUDGMENT, 1685, PP. 192
94; THE DOLPHIN, ACQUITTED BY A JURY, 1685, PP. 198-200 AND 138;
GOODMAN QUI TAM V. DOUNHAM, AND GOODMAN QUI TAM V. POWEL, CALICOES
CONDEMNED IN DEFAULT OF A CLAIMANT, 1699, P. 319.  SEE ALSO THE
REFERENCE AT PP. 136-37 TO THE CONDEMNATION OF THE UNITY IN 1688 IN THE
MIDDLESEX COURT OF COMMON PLEAS. 

PENNSYLVANIA:  IN THE CLOSING YEARS OF THE 17TH CENTURY, ADMIRALTY
JURISDICTION IN PENNSYLVANIA WAS VESTED IN THE PROVINCIAL COUNCIL. 
LOYD, EARLY COURTS OF PENNSYLVANIA, P. 68; EASTMAN, COURTS AND LAWYERS
OF PENNSYLVANIA, VOL. 1, P. 165; LEWIS, THE COURTS OF PENNSYLVANIA IN
THE SEVENTEENTH CENTURY, 1 REP. PA. BAR ASSN. 353, 383, 389. 
FORFEITURE CASES UNDER THE NAVIGATION ACTS WERE NEVERTHELESS TRIED IN
THE COMMON LAW COURTS.  SEE THE CASE OF THE DOLPHIN, CLEARED BY A JURY
AT A SPECIAL COURT IN THE COUNTY OF CHESTER, 1695, EDWARD RANDOLPH,
VOL. 5, PP. 108-14, 139; THE PENNSYLVANIA MERCHANT, CONDEMNED BY A JURY
IN THE COURT OF COMMON PLEAS AT CHESTER, 1695, RECORD OF THE COURTS OF
CHESTER COUNTY, 1681-1697(1910) PP. 366-69.  CF. ROOT, THE RELATIONS OF
PENNSYLVANIA WITH THE BRITISH GOVERNMENT, 1696-1765, PP. 108-11. 

NEW HAMPSHIRE:  THE GEORGE, CONDEMNED BY A JURY AT A SPECIAL COURT IN
1682.  CALENDAR OF STATE PAPERS, COLONIAL, AMERICA AND WEST INDIES,
1681-1685, NOS. 868-70; EDWARD RANDOLPH, VOL. 3, PP. 256-58.  THE
HOPEWELL WAS ACQUITTED BY A JURY IN THE COURT OF COMMON PLEAS IN 1699;
THE CARGO OF THE SPEEDWELL WAS CONDEMNED BY A JURY IN THE SAME COURT IN
1701, BUT THE SUPERIOR COURT REVERSED THE JUDGMENT.  SEE ANDREWS, VICE
ADMIRALTY COURTS IN THE COLONIES, SUPRA, PP. 10, N. 1, 49-50, AND CF.
P. 11, N. 1; ANDREWS, THE COLONIAL PERIOD OF AMERICAN HISTORY, VOL. 4,
P. 123; ALDRICH, ADMIRALTY JURISDICTION OF NEW HAMPSHIRE, 3 PROC. N.H.
BAR ASSN. (N.S.)  31, 50-51.  SEE ALSO THE INDUSTRY, CLEARED BY A JURY
IN 1679.  EDWARD RANDOLPH, VOL. 3, PP. 84, 343. 

CONNECTICUT:  THE CARGO OF THE ADVENTURE WAS CONDEMNED BY A JURY IN
THE COUNTY COURT AT HARTFORD, 1692.  SEE 3 COLL.  OF THE CONN.  HIST.
SOC., PP. 264-66 N. 

MAINE: SEE CASE OF THE GIFT OF GOD, CLEARED BY JURY, 1680(COURT NOT
SPECIFIED).  EDWARD RANDOLPH, VOL. 3, PP. 85, 348.  THIS SHIP WAS TRIED
AGAIN IN 1683.  ID., PP. 350, 351. 

FN5  SEE LARKIN QUI TAM V. SLOOP LEWIS, CONDEMNED UPON A CONFESSION
OF JUDGMENT, AUGUST 4, 1685(MSS.  IN HALL OF RECORDS, N.Y.C., PLEADINGS
K 456 AND K 452), AND COMPARE DOCUMENTARY HISTORY OF NEW YORK (ED.
O'CALLAGHAN, 1850), VOL. 1, P. 116; LUDGAR QUI TAM V. SLOOP FORTUNE,
MAY 5, 1685, CONDEMNED ON CONFESSION OF JUDGMENT (MS. MINUTES N.Y.C.
QUARTER SESSIONS 1683/4-1693/4, FOL.  40); MEINE QUI TAM V. SLOOP
UNITY, AUGUST 3, 1686, CONDEMNED ON CONFESSION OF JUDGMENT (ID. FOL. 
93); SANTEN QUI TAM V. THE TWO SISTERS, AUGUST 2, 1686, ACQUITTED BY
THE JURY (ID., FOL.  95).  SEE ALSO LUDGAR QUI TAM V. PINKE CHARLES,
AUGUST 4, 1685, ACQUITTED BY THE JURY OF VIOLATING AN ACT OF THE
PROVINCIAL ASSEMBLY (ID., FOL.  48-50). 

THERE IS SOME RECORD OF COURTS OF ADMIRALTY IN NEW YORK BEFORE 1700,
APPARENTLY ACTING UNDER SPECIAL COMMISSIONS.  DOC. HIST. N.Y., VOL. 1,
P. 60, VOL. 2, PP. 164-68, 172, 176-77; CRUMP, COLONIAL ADMIRALTY
JURISDICTION IN THE SEVENTEENTH CENTURY, PP. 122-24. 

FN6  THE PUBLISHED MINUTES OF THE SUPREME COURT OF JUDICATURE 1693
1701, 45 N.Y. HIST. SOC. COLL., DISCLOSE AT LEAST NINE SUCH CASES
DURING THAT PERIOD:  BROOKE V. BARQUENTEEN ROBERTS, P. 55; BROOKE QUI
TAM V. BARQUENTEEN ORANGE AND JACOBS, PP. 59, 61, 62, 63, 65, 68,
73(AND SEE THE MORE COMPLETE ACCOUNTS OF THIS CASE IN HARPER, THE
ENGLISH NAVIGATION LAWS, P. 193, AND IN CAL. ST. PAP., COL., AM. & W.I.
1693-1696, NOS. 1133, 1546, 1891 AND 2033); BROOKE QUI TAM V. IRON
BARS, PP. 59, 63; HUNGERFORD V. BRIGANTEEN SWIFT, PP. 154, 156, 158; R.
V. THE CONCORD AND BLAKE, PP. 156, 160, 162; R. V. PIPE STAVES, PP.
157, 158; HUNGERFORD V. EAST INDIAN GOODS, PP. 166, 176; HUNGERFORD QUI
TAM V. SUNDRY GOODS, P. 168(SEE THE INFORMATION IN N.Y. MISC. MSS.  BOX
3, N.Y. HIST. SOC.); LOTT QUI TAM V. SUNDRY GOODS AND ALLISON, PP. 168,
173, 176, 183, 184.  SEE ALSO A CONFESSION OF JUDGMENT, OCTOBER 8,
1698, ON AN INFORMATION FILED IN THE COURT IN CORTLANDT QUI TAM V. THE
FORTUNE, HALL OF RECORDS, N.Y.C., PARCHMENT 210 G-1. 

FN7  SEE COLONIAL LAWS OF NEW YORK 1664-1775(1894):  VOL. 1, PP. 252,
291, 292, 422-23, 451, 787, 850-51, 1017, 1022.  VOL. 2, PP. 20, 21,
26, 27, 28, 33, 258, 260, 284, 287, 357, 358, 424, 435, 436, 477-79,
655, 778, 800, 853, 878-79, 909-10, 963, 1055.  VOL. 3, PP. 33, 79, 95,
99, 108, 113, 115, 119, 245, 250-51, 356, 361-62, 442, 569, 790-91, 949
50, 972, 975.  VOL. 4, PP. 107, 366, 1092.  VOL. 5, PP. 316, 364-65,
547, 836, 857-58. 

FN8 HALL OF RECORDS, N.Y.C., PARCHMENTS 159 D 2(JUDGMENT ROLL); MS.
MINUTES SUP. CT. OF JUD.  1732-1737, FOL.  172-75. 

IN 1739 THE SUPREME COURT OF JUDICATURE ISSUED A WRIT OF PROHIBITION
RESTRAINING PROSECUTION OF A FORFEITURE PROCEEDING UNDER 15 CAR.  II,
C. 7, AGAINST THE MARY AND MARGARET IN THE COURT OF VICE-ADMIRALTY. 
FOUR YEARS LATER THE PRIVY COUNCIL UPHELD THE ISSUANCE OF THE WRIT,
APPARENTLY ACCEPTING THE VIEW THAT A SEIZURE IN ANY PART OF NEW YORK
HARBOR WHICH WAS "WITHIN THE BODY OF THE COUNTY" RATHER THAN ON THE
HIGH SEAS CAME WITHIN THE EXCLUSIVE JURISDICTION OF THE COMMON LAW
COURTS - A RULING WHICH PROBABLY LEFT TO THE VICE-ADMIRALTY COURT BUT A
SMALL ROLE IN CASES UNDER THE NAVIGATION ACTS, EXCEPT WHEN THE
PARTICULAR ACT CONTAINED AN EXPRESS GRANT OF SUCH JURISDICTION (CF.
NOTE 3, SUPRA).  SEE REPORTS OF CASES IN THE VICE-ADMIRALTY AND
ADMIRALTY OF NEW YORK 1715-1788(ED. HOUGH, 1925) P. 16; DOCUMENTS
RELATIVE TO THE COLONIAL HISTORY OF NEW YORK (1855), VOL. 6, PP. 154
55; 3 ACTS OF THE PRIVY COUNCIL, COLONIAL, NO. 538.  SEE ALSO ROOT, THE
RELATIONS OF PENNSYLVANIA WITH THE BRITISH GOVERNMENT 1696-1765, P.
117, N. 100; WASHBURNE, IMPERIAL CONTROL OF THE ADMINISTRATION OF
JUSTICE IN THE THIRTEEN AMERICAN COLONIES, 1684-1776, P. 168.  COMPARE
LATER CASES IN HOUGH'S REPORTS, IN WHICH THE VICE-ADMIRALTY COURT TOOK
A SIMILAR NARROW VIEW OF ITS JURISDICTION,  - KENNEDY QUI TAM V. 32
BARRELS OF GUNPOWDER (1754) P. 82; SPENCER QUI TAM V. RICHARDSON (1760)
P. 181.  SEE NOTE 1, SUPRA. 

FN9  THE FOLLOWING ARE ALL CASES OF JUDGMENTS TAKEN BY DEFAULT:
HARISON QUI TAM V. SEVERAL PARCELS OF TOBACCO, MS. MINUTES SUP. CT. OF
JUD., ENGROSSED, 1750-54, PP. 124, 127, 130(APRIL 23-25, 1752); KENNEDY
QUI TAM V. 77 CASES OF BOTTLES, ETC., ID. 1754-57, PP. 254, 260, (APRIL
29, 1756); ALLEN QUI TAM V. TWO TONS ETC. OF SUGAR, ID. 1766-69, PP.
607-08(JANUARY 21, 1769); ELLIOTT & MOORE QUI TAM V. SEVEN CASKS OF
TEA, HALL OF RECORDS, N.Y.C., PLEADINGS K 474(INFORMATION), PARCHMENTS
120 G 1(JUDGMENT ROLL)(AUGUST 1772); ELLIOTT & MOORE QUI TAM V.
NINETEEN CASKS OF TEA, ETC., ID., PARCHMENTS 29 F 9(AUGUST 1772);
ELLIOTT & MOORE QUI TAM V. TWENTY PIPES OF WINE, ID., PARCHMENTS 93 H
2(AUGUST 1772). 

FN10  SEE LAWS OF NEW YORK, 1777-1801(1886), VOL. 1, PP. 19, 112, 601
AND 604, 627-28, 666-67.  VOL. 2, PP. 516-17, 786, 789, 806-07. 
SIMILAR LEGISLATION SHORTLY AFTER THE ADOPTION OF THE CONSTITUTION WILL
BE FOUND IN VOL. 4, P. 592; VOL. 5, P. 468. 

MUCH OF THE COLONIAL AND STATE CUSTOMS LEGISLATION BEFORE 1789 IS
COLLECTED IN HILL, THE FIRST STAGES OF THE TARIFF POLICY OF THE UNITED
STATES, 8 PUBL.  AMERICAN ECONOMIC ASSN., 453; KELLEY, TARIFF ACTS
UNDER THE CONFEDERATION, 2 QUARTERLY J. OF ECONOMICS, 473; RIPLEY, THE
FINANCIAL HISTORY OF VIRGINIA 1609-1776, CH. 3. 

FN11  FOR EXAMPLE, SEE LAMB QUI TAM V. SYLSBEE, INFORMATION TO
CONDEMN THREE THOUSAND GALLONS OF RUM FOR VIOLATION OF THE ACT OF MARCH
22, 1784(FILED SEPTEMBER 14, 1785).  HALL OF RECORDS, N.Y.C.,
PARCHMENTS P 9 B 1(ISSUE ROLL).  THE PROCEEDINGS ARE INCOMPLETE, BUT A
SUBSEQUENT ENTRY, OCTOBER 27, 1785, INDICATES THAT THE JURY BROUGHT IN
A VERDICT FOR THE PLAINTIFF.  MS. MINUTES SUP. CT. OF JUD., JAN. 1785
NOV.  1785, FOL.  52. 

FN12  DURING THE CONFEDERATION, COURTS OF ADMIRALTY EXISTED IN EACH
STATE AND APPEALS IN PRIZE CASES WERE TAKEN TO THE COMMITTEE OF APPEALS
IN THE CONTINENTAL CONGRESS, AND AFTER 1780 TO THE COURT OF APPEALS. 
SEE 131 U.S., APPENDIX, PP. XIX-XLIX; JAMESON, THE PREDECESSOR OF THE
SUPREME COURT, IN ESSAYS IN THE CONSTITUTIONAL HISTORY OF THE UNITED
STATES IN THE FORMATIVE PERIOD, P. 1; WIENER, NOTES ON THE RHODE ISLAND
ADMIRALTY, 1727-1790, 46 HARV. L. REV. 44, 59.  THE NEW YORK COURT OF
ADMIRALTY WAS ESTABLISHED IN 1776(SEE HOUGH'S REPORTS P. XXIV), AND ITS
JURISDICTION WAS RESTRICTED BY THE ACT OF FEBRUARY 14, 1787(2 LAWS OF
NEW YORK, P. 394). 

FN13  THE COURT OF EXCHEQUER WAS CREATED BY THE ACT OF FEBRUARY 9,
1786(2 LAWS OF NEW YORK, P. 185), TO ENTERTAIN ONLY PROSECUTIONS
INSTITUTED BY ITS CLERK OR BY THE STATE ATTORNEY GENERAL.  IT WAS
PRESIDED OVER BY THE JUNIOR JUSTICE OF THE SUPREME COURT OF JUDICATURE,
WHO WAS AUTHORIZED TO TRANSFER "ALL CASES OF DIFFICULTY" TO THE SUPREME
COURT OF JUDICATURE. 

FN14  THE FAME WAS CONDEMNED IN THE SUPREME COURT OF PENNSYLVANIA IN
1726.  OSGOOD, THE AMERICAN COLONIES IN THE 18TH CENTURY, VOL. 2, P.
541; ROOT, THE RELATIONS OF PENNSYLVANIA WITH THE BRITISH GOVERNMENT
1696-1765, P. 169; PENNSYLVANIA STATUTES AT LARGE, 1682-1801(1897 ED.),
VOL. 4, PP. 422-26, 429-31; 6 ACTS OF THE PRIVY COUNCIL, COLONIAL, NOS.
328, 333.  FOR THE CASE OF THE SARAH, ACQUITTED AT THE NEW CASTLE COURT
OF COMMON PLEAS IN 1727, SEE ROOT, P. 120; BOARD OF TRADE PAPERS,
PROPRIETIES 1697-1776, VOL. XII, R:  119, 122 AND 131(COPY IN
POSSESSION OF THE HISTORICAL SOCIETY OF PENNSYLVANIA).  SEE ALSO THE
RICHARD & WILLIAM, ACQUITTED IN THE PHILADELPHIA COURT OF COMMON PLEAS,
1728, ID., R:  93; THE HOPE, APPARENTLY ACQUITTED BY THE JURY IN THE
PHILADELPHIA COURT OF COMMON PLEAS, THE COLLECTOR'S APPEAL TO THE PRIVY
COUNCIL BEING DISMISSED IN 1737, 3 ACTS OF THE PRIVY COUNCIL, COLONIAL,
NO. 381.    A NUMBER OF CASES TRIED IN THE COMMON LAW COURT IN JAMAICA
DURING THE REVOLUTIONARY PERIOD ARE REPORTED IN GRANT, NOTES OF CASES
ADJUDGED IN JAMAICA, 1774 TO 1787(ONE OF THE FEW KNOWN COPIES OF THIS
WORK IS IN THE GERRY COLLECTION OF THE LIBRARY OF THIS COURT).  SEE REX
QUI TAM V. SCHOONER REVENGE, P. 116; REX V. SLOOP TRYAL, P. 155;
WOOLFRYS QUI TAM V. SHIP TARTAR, PP. 156, 163; MACFARQUHAR QUI TAM V.
SLOOP FLYING FISH, PP. 156, 188; FLOWERDEW QUI TAM V. SLOOP LA DEPECHE,
P. 258; MACALLISTER QUI TAM V. THE GREYHOUND, P. 310; SEE ALSO EX PARTE
OLIVERES DANIEL, P. 293.  COMPARE ANDREWS, THE COLONIAL PERIOD OF
AMERICAN HISTORY, VOL. 4, P. 249, N. 3.  SEE ALSO CASES OF THE DOLPHIN
AND THE MERCURY, CONDEMNED IN THE JAMAICA SUPREME COURT OF JUDICATURE,
1742, JUDGMENTS REVERSED AND NEW TRIALS ORDERED BY THE PRIVY COUNCIL,
1743, 3 ACTS OF THE PRIVY COUNCIL, COLONIAL, NOS. 566-67; THE LAWRENCE,
CONDEMNED BY THE JAMAICA SUPERIOR COURT, 1769, REVERSED BY THE PRIVY
COUNCIL, 1777, 5 ID. NO. 217. 

FN15  THE HIRAM, SUBJECT OF THE LITIGATION IN CORFIELD V. CORYELL
(AND IN KEAN V. RICE, 12 SEARG.  & RAWL.  203), HAD BEEN CONDEMNED
UNDER SECS. 6 AND 7 OF THE NEW JERSEY ACT OF JUNE 9, 1820, WHOSE
FORFEITURE PROVISIONS WERE DERIVED FROM SECS. 5 AND 6 OF THE ACT OF
JANUARY 26, 1798(PATERSON, NEW JERSEY LAWS 1703-1799, P. 263), IN TURN
DERIVED FROM SECS. 2-6 OF A PROVINCIAL ACT OF 1719, 5 GEO. I, C.
30(NEVILL, NEW JERSEY ACTS 1703-1752, PP. 86-88).  COMPARE THE
FORFEITURE PROVISIONS OF THE DELAWARE RIVER FISHING LEGISLATION, IN NEW
JERSEY ACTS OF NOVEMBER 26, 1808, SEC. 4, AND NOVEMBER 28, 1822, SEC.
13, AND IN PENNSYLVANIA ACTS OF FEBRUARY 8, 1804, SEC. 5, OF FEBRUARY
23, 1809, AND JANUARY 29, 1823; SEE SHOEMAKER V. STATE, 20 N.J.L.
153(1843). 

MASSACHUSETTS ENACTED EARLY LEGISLATION RESTRICTING FISHING IN
NAVIGABLE WATERS, INCLUDING TAUNTON GREAT RIVER AND THE MERRIMACK, AND
PROVIDING THAT ANY NETS USED UNLAWFULLY SHOULD BE FORFEITED.  ACT OF
FEBRUARY 22, 1790(FORFEITURE TO BE IN A "TRIAL IN LAW"); ACT OF MARCH
4, 1790(FORFEITURE PROCEEDING TO BE CONDUCTED IN SPECIFIED MANNER BY
JUSTICE OF THE PEACE); ACT OF MARCH 27, 1793. 

DELAWARE REGULATED THE TAKING OF OYSTERS AND OTHER SHELLFISH BY THE
ACT OF FEBRUARY 12, 1812(SEE REVISED LAWS, 1829, P. 274), IMPOSED AS A
PENALTY THE FORFEITURE OF VESSELS AND THEIR EQUIPMENT, AND BY SEC. 2
PROVIDED THAT THE CONDEMNATION PROCEEDING SHOULD BE BEFORE TWO JUSTICES
OF THE PEACE IN AN ACTION QUI TAM. 

RHODE ISLAND PROVIDED THAT, IN THE CASE OF UNLAWFUL TAKING OF OYSTERS
IN ANY WATERS IN THE STATE, THE VESSEL TOGETHER WITH ALL ITS IMPLEMENTS
SHOULD BE FORFEITED IN AN ACTION QUI TAM IN THE COURT OF COMMON PLEAS
OR GENERAL SESSIONS OF THE PEACE.  SEE THE 1798 REVISION OF PUBLIC
LAWS, PP. 488-89, DERIVED FROM AN ACT OF AUGUST 1773(R.I. ACTS AND
RESOLVES, AUGUST 1773, PP. 63-64).  COMPARE AN ACT OF 1803, APPEARING
IN THE 1822 REVISION OF PUBLIC LAWS, P. 516; AN ACT OF 1802, SEC. 1, IN
R.I. PUBLIC LAWS 1798-1813(NEWPORT, PRINTED BY H. & O. FARNSWORTH) P.
83; ACT OF JUNE 23, 1810, SEC. 1, ID., P. 194. 

THE 1808 COMPILATION OF THE STATUTE LAWS OF CONNECTICUT, BOOK I,
TITLE LXX, FISHERIES, CONTAINS SEVERAL STATUTES PASSED BETWEEN 1783 AND
1798, REGULATING FISHING ON CERTAIN RIVERS, INCLUDING THE CONNECTICUT,
AND PUNISHING VIOLATIONS BY BOTH FINE AND A FORFEITURE OF THE SEINES OR
OTHER IMPLEMENTS USED.  SEE C. I, SECS. 7, 10, 13; C. IV, SEC. 1; BOLES
V. LYNDE, 1 ROOT 195(1790). 

SEE ALSO TRUEMAN V. 403 QUARTER CASKS ETC. OF GUNPOWDER, THACHER'S
CR. CAS., P. 14(BOSTON, 1823). 

FN16  IN ADDITION TO CALIFORNIA, THERE ARE AT LEAST TWENTY-TWO STATES
WHOSE LAWS NOW MAKE PROVISION FOR THE CONDEMNATION, IN STATE COURT
PROCEEDINGS, OF NETS OR VESSELS USED IN STATE WATERS, INCLUDING
NAVIGABLE WATERS, IN VIOLATION OF STATE FISHING LAWS.  ARKANSAS, POPE'S
DIGEST, 1942 SUPPL., SEC. 5958; CONNECTICUT GEN. STAT. 1930, SEC. 3175;
DELAWARE REV. CODE 1935, SECS. 2904-2905, 2955, 2957-2958, 2990, 2991,
2993-2995, 2997, 3000-3002, 3004, 3007, 3015, 3024, 3030, 3035, 3037;
FLORIDA STAT. 1941, SECS. 372.31, 374.41; ILLINOIS REV. STAT. 1941, CH.
56, SEC. 109; IOWA CODE 1939, SECS. 1794.099-1794.102; KENTUCKY REV.
STAT. 1942, SEC. 150.120; LOUISIANA GEN. STAT., DART 1939, SECS. 3074,
3108, 3118; MAINE REV. STAT. 1930, CH. 50, SECS. 50, 81; MARYLAND ANN.
CODE, FLACK 1939, ART. 39, SECS. 10-12, 25, 65, 66, 67, 69, 72, 73;
MASSACHUSETTS GEN. LAWS 1932, CH. 130, SEC. 74; MICHIGAN STAT. ANN.,
HENDERSON 1937, SECS. 13.1221-13.1225; MINNESOTA STAT. 1941, SEC.
102.06(21); MISSISSIPPI CODE ANN. 1930, SEC. 6908; NEW JERSEY REV.
STAT. 1937, TITLE 23, CH. 9, SECS. 9-11, 14, 15, 20, 27-29, 32, 33, 44
46, 48, 49, 55, 63, 67, 110, 112, CH. 10, SEC. 21; NORTH CAROLINA CODE
1939, SEC. 1965(A); OHIO GEN. CODE ANN., PAGE 1937, SECS. 1416,
1450(SEE 1942 SUPPL.), 1451; OREGON COMP. LAWS ANN. 1940, SECS. 82-347,
83-318, 83-415, 83-520, 83-523; SOUTH DAKOTA CODE 1939, SEC. 25.0422;
VIRGINIA CODE 1942, SECS. 3159, 3169(AND SEE CH. 131), 3171, 3176,
3180, 3182, 3188, 3206, 3214, 3248, 3305A, 3305B, 3305C; WASHINGTON
REV. STAT. ANN., REMINGTON 1932, SECS. 5692, 5671-10(1940 SUPPL.);
WISCONSIN STAT. 1941, SEC. 29.05(7). 

FN17  SECTION 9 OF THE JUDICIARY ACT OF 1789, 1 STAT. 77, PROVIDED
THAT "THE TRIAL OF ISSUES IN FACT, IN THE DISTRICT COURTS, IN ALL
CAUSES EXCEPT CIVIL CAUSES OF ADMIRALTY AND MARITIME JURISDICTION,
SHALL BE BY JURY." 

MR. JUSTICE BLACK, DISSENTING: 

IF THIS CASE INVOLVED ONLY A FISHNET, I SHOULD BE INCLINED TO
ACQUIESCE IN THE HOLDING OF THE COURT.  INDEED, WE HAVE HELD THAT A
STATE MAY SEIZE AND CONDEMN A FISHNET OF TRIFLING VALUE WITHOUT
FOLLOWING THE FORMAL PROCEDURE OF COURT ACTION AT ALL.  LAWTON V.
STEELE, 152 U.S. 133.  BUT THE PRINCIPLE LAID DOWN HERE INVOLVES FAR
MORE THAN A FISHNET, FOR UNDER IT STATE COURTS ARE AUTHORIZED THROUGH
IN REM PROCEEDINGS TO SEIZE AND CONDEMN, FOR VIOLATION OF LOCAL LAW,
ANY EQUIPMENT OR VESSEL EMPLOYED IN MARITIME ACTIVITY.  TODAY'S IN REM
ACTION IS AGAINST A FISHNET USED IN PATENTLY ILLEGAL FASHION;
TOMORROW'S MAY BE AN ACTION AGAINST A TRAMP-STEAMER OR OCEAN LINER
WHICH VIOLATES A HARBOR REGULATION OR OTHERWISE OFFENDS AGAINST THE
POLICE REGULATIONS OF A STATE OR MUNICIPALITY.  PERSONS GUILTY OF
VIOLATING STATE LAWS AFFECTING MARITIME ACTIVITY MAY BE PROSECUTED BY
IN PERSONAM ACTIONS IN STATE COURTS,  FN1  AND THE ADMIRALTY COURTS
THEMSELVES CAN HELPFULLY ENFORCE STATE LAWS THROUGH IN REM
PROCEEDINGS.  FN2  I DO NOT BELIEVE, HOWEVER, THAT THE JUDICIARY ACT
PERMITS STATES, THROUGH STATE COMMON LAW COURTS WHICH CANNOT REASONABLY
BE EXPECTED TO HAVE KNOWLEDGE OF ADMIRALTY LAW AND PRACTICE, TO GIVE
PERMANENT HALT TO ANY PORTION OF THE MARITIME TRADE AND COMMERCE OF THE
NATION BY BRINGING IN REM PROCEEDINGS AGAINST SHIPS.  FN3 

THE JUDICIARY ACT OF 1789 PLACES IN THE FEDERAL ADMIRALTY COURTS
EXCLUSIVE JURISDICTION OVER ADMIRALTY CASES EXCEPT WHERE THE COMMON LAW
PROVIDES AN EQUIVALENT REMEDY.  IT IS CONCEDED THAT AS A GENERAL
PROPOSITION THE COMMON LAW COURTS HAVE NO IN REM REMEDY IN MARITIME
CASES.  HOWEVER, THE COURT HOLDS SQUARELY, FOR THE FIRST TIME IN ITS
HISTORY, THAT THERE IS AN EXCEPTION TO THIS RULE WHICH PERMITS STATES
TO BRING IN REM FORFEITURE PROCEEDINGS IN COMMON LAW COURTS.  THE COURT
BRUSHES ASIDE AS MERE GENERALIZATIONS THE MANY CASES HEREAFTER
CONSIDERED WHICH DECLARE THAT NO EQUIVALENT OF AN ADMIRALTY IN REM
PROCEEDING MAY BE BROUGHT AT COMMON LAW.  TODAY'S HOLDING IS RESTED
PRINCIPALLY ON THE ENGLISH AND COLONIAL PRACTICE PRIOR TO 1789 AND ON
ONE CASE IN THIS COURT.  I DISAGREE, BELIEVING THAT THE ENGLISH
PRACTICE IS IRRELEVANT, THAT THE COLONIAL LAW WAS NOT IN ACCORD WITH
THE ENGLISH PRACTICE, AND THAT A LONG SERIES OF CASES SINCE 1789 HAVE
CLEARLY CONSIDERED THE PROPOSITION PUT BY THE COURT, AND HAVE GIVEN THE
JUDICIARY ACT A MEANING SQUARELY OPPOSITE TO THAT NOW ANNOUNCED. 

THE ENGLISH EXCHEQUER PRACTICE ON WHICH THE COURT APPEARS TO RELY SO
HEAVILY SEEMS TO ME TO BE IRRELEVANT BECAUSE IT WAS NOT IN CONFORMITY
WITH OUR OWN EARLY AMERICAN DEVELOPMENT.  THE COLONISTS, OF COURSE, DID
NOT ESTABLISH ADMIRALTY COURTS THE MOMENT THEY STEPPED FROM THE VESSELS
WHICH BROUGHT THEM TO THE NEW WORLD, AND FOR A SUBSTANTIAL PORTION OF
THE SEVENTEENTH CENTURY MARITIME FORFEITURES WERE COLLECTED IN THE
FASHION OF THE ENGLISH COURTS.  HOWEVER, TOWARD THE END OF THAT
CENTURY, IT BECAME ACUTELY APPARENT IN ENGLAND THAT COLONIAL JURIES
WOULD NOT ENFORCE THE NAVIGATION LAWS AS ENGLAND DESIRED TO SEE THEM
ENFORCED.  THIS WAS PARTICULARLY TRUE IN MASSACHUSETTS BAY  FN4  AND IN
OTHER COLONIES WHERE COMMERCIAL INTERESTS DOMINATED.  HENCE IN 1697,
VICE COMMISSIONERS OF ADMIRALTY WERE ESTABLISHED THROUGHOUT THE
COLONIES TO ENFORCE THE NAVIGATION LAWS OF ENGLAND WITHOUT JURY
PROCEDURE.  IT WAS CONCEDED BY THE EARLIEST WRITERS THAT THE VICE
ADMIRALTY COURTS IN THE COLONIES "OBTAINED IN A SINGULAR MANNER A
JURISDICTION IN REVENUE CAUSES, TOTALLY FOREIGN TO THE ORIGINAL
JURISDICTION OF THE ADMIRALTY, AND UNKNOWN TO IT."  FN5 YET, WITH THE
GREAT ADAPTABILITY OF THE EARLY COURTS, THIS JURISDICTION IN THE
COLONIES WAS FITTED INTO THE JUDICIAL SYSTEM SO AS TO ALLOW APPEAL, AS
IN PURELY ADMIRALTY CASES, TO THE HIGH COURT OF ADMIRALTY IN ENGLAND. 

THE VROUW DOROTHEA (1754) REPORTED IN THE FABIUS, 2 C. ROBINSON 246. 
FN6 

THE SAME CONFLICT WHICH TOOK PLACE IN ENGLAND BETWEEN COKE AS
CHAMPION OF THE COMMON LAW JURISDICTION, AND THE ADMIRALTY COURTS ALSO
WAS CARRIED ON IN THE COLONIES.  CF. TALBOT V. THE THREE BRIGS, 1
DALL.  95.  AS A RESULT THERE WAS, THROUGHOUT THE EIGHTEENTH CENTURY,
MARKED CONFUSION AS TO THE PROPER JURISDICTION OF EACH IN FORFEITURE
CASES.  FOR EXAMPLE, IN 1702, THE BOARD OF TRADE ASKED THE ADVICE OF
THE ATTORNEY GENERAL AS TO WHETHER ALL FORFEITURES IN CONNECTION WITH
COLONIAL TRADING MATTERS UNDER THE NAVIGATION ACT OF 1696 WERE TO BE
PROSECUTED EXCLUSIVELY IN COURTS OF ADMIRALTY, AND THE ATTORNEY GENERAL
REPLIED IN THE AFFIRMATIVE.  FN7  ON THE OTHER HAND IT IS CLEAR, AS THE
CASES CITED BY THE COURT SHOW, THAT THIS VIEW WAS NOT ALWAYS
MAINTAINED.  ONE CAN ONLY CONCLUDE THAT THERE WAS IN 1789 NO COMPLETELY
CLEAR RESOLUTION OF THE CONFLICT BETWEEN ADMIRALTY AND COMMON LAW
COURTS IN FORFEITURE CASES, THOUGH THE CASES HEREAFTER CONSIDERED
INDICATE THAT THE ADMIRALTY COURTS WERE WINNING THE DOMINANT ROLE.  AT
THE SAME TIME IT MUST BE CONCEDED BY THE PROPONENTS OF THE COURT'S VIEW
THAT AMERICAN PRACTICE HAD COME TO BE MARKEDLY DIFFERENT FROM THE
ENGLISH. 

IT IS SETTLED BEYOND QUESTION THAT THE GENERAL ADMIRALTY LAW OF THE
UNITED STATES IN 1789 WAS THE LAW AS DEVELOPED IN THE COLONIES AND NOT
THE LAW AS IT CAME FROM ENGLAND.  PRIOR TO THE MIDDLE OF THE NINETEENTH
CENTURY A CONTRARY VIEW WAS OFTEN PRESSED UPON THE COURT AND WAS AS
OFTEN REJECTED WITH ADEQUATE REFERENCE TO THE DIFFERENCES BETWEEN THE
TWO.  FN8  THE EARLY AMERICAN COURTS THEREFORE WERE FACED WITH THE TASK
OF DETERMINING WHETHER FORFEITURE ACTIONS SHOULD BE BROUGHT EXCLUSIVELY
IN THE COMMON LAW COURTS, EXCLUSIVELY IN THE ADMIRALTY COURTS, OR
CONCURRENTLY IN EITHER.  IN REPEATED DECISIONS RELATING TO FORFEITURES
UNDER FEDERAL LAWS, THIS COURT, WITHIN A FEW YEARS OF THE ADOPTION OF
THE JUDICIARY ACT OF 1789, HELD THAT FORFEITURE JURISDICTION WAS
EXCLUSIVELY IN THE ADMIRALTY COURTS. 

THE LEADING CASE FOR THIS PROPOSITION IS LA VENGEANCE, 3 DALL. 
297(1796).  IN THAT CASE THE UNITED STATES BROUGHT AN ACTION OF
FORFEITURE FOR EXPORTING ARMS AND AMMUNITION.  THE UNITED STATES
CONTENDED IN THIS COURT THAT THE ACTION WAS CRIMINAL IN ITS NATURE AND
THAT, IN ANY CASE, IT WAS NOT A CIVIL SUIT WITHIN THE ADMIRALTY AND
MARITIME JURISDICTION AND THEREFORE SHOULD HAVE BEEN TRIED BEFORE A
JURY AS AT COMMON LAW.  THE COURT HELD THAT THE ACTION WAS CLEARLY
CIVIL SINCE IT WAS AN IN REM PROCEEDING AND THAT IT WAS SUBJECT TO THE
MARITIME JURISDICTION BECAUSE THE BASIC TRANSPORTATION ACTIVITY
INVOLVED WAS "ENTIRELY A WATER TRANSACTION."  THERE IS NO SUGGESTION
WHATEVER, IN THE BRIEF OPINION OF THE COURT, OF THE POSSIBILITY OF A
CONCURRENT COMMON LAW JURISDICTION.  THIS RULE WAS FOLLOWED IN THE
SALLY, 2 CRANCH 406, WHERE THE GOVERNMENT AGAIN CONTENDED THAT IT WAS
ENTITLED TO TRY FORFEITURE ACTIONS BEFORE A JURY SINCE THE "CAUSE WAS
OF COMMON LAW, AND NOT OF ADMIRALTY AND MARITIME JURISDICTION," AND THE
SAME RESULT WAS REACHED IN THE SAMUEL, 1 WHEAT.  9.  FN9 

ONE OF THE MOST ELABORATE ARGUMENTS EVER MADE IN THIS COURT ON THE
ISSUE NOW BEFORE US WAS PRESENTED IN 1808 IN UNITED STATES V. SCHOONER
BETSEY AND CHARLOTTE, 4 CRANCH 443.  THAT CASE AROSE ON AN ACTION FOR
FORFEITURE.  COUNSEL FOR THE CLAIMANT, WHO HAD ALSO BEEN THE LOSING
COUNSEL IN LA VENGEANCE, CONTENDED THAT THE ACTION SHOULD HAVE BEEN
TRIED AS AT COMMON LAW.  HE STRONGLY EMPHASIZED THE EXCHEQUER PRACTICE
IN ENGLAND AND SAID, "THERE IS NOTHING IN THE COURSE OF PROCEEDINGS IN
REM WHICH REQUIRES THAT THEY SHOULD BE IN A COURT OF ADMIRALTY."  ID.
447.  THE ARGUMENT HE MADE WAS ALMOST IDENTICAL WITH THAT WHICH THE
COURT ADOPTS IN THE INSTANT CASE.  HE EMPHASIZED PARTICULARLY THAT "WE
HAVE SEEN THAT IN ALL CASES OF SEIZURE FOR BREACHES OF THE LAW OF
REVENUE, TRADE OR NAVIGATION, THE COMMON LAW IS COMPETENT TO GIVE A
REMEDY; AND CONSEQUENTLY THIS SUITOR IS ENTITLED TO IT."  ID. 449. 

THE COURT REJECTED ENTIRELY THE ARGUMENT OF THE COUNSEL, HELD THE
BETSEY AND CHARLOTTE INDISTINGUISHABLE FROM LA VENGEANCE, AND
INTERPRETED THE JUDICIARY ACT TO MEAN THAT CONGRESS HAD PLACED
FORFEITURES "AMONG THE CIVIL CAUSES OF ADMIRALTY AND MARITIME
JURISDICTION."  LA VENGEANCE WAS HELD CONCLUSIVE OF THE PROPOSITION
THAT IN SUCH CASES THERE COULD BE NO RIGHT TO TRIAL BY JURY - IN OTHER
WORDS THAT UNDER THE AMERICAN LAW AS REPEATEDLY DECLARED BETWEEN 1796
AND 1808, THE COMMON LAW WAS NOT, WITHIN THE MEANING OF THE JUDICIARY
ACT, COMPETENT TO GIVE A REMEDY IN FORFEITURE CASES.  FN10  WHEN THE
QUESTION OF A RIGHT TO A COMMON LAW TRIAL IN A FORFEITURE CASE WAS
CERTIFIED TO THE SUPREME COURT IN 1812, THE COURT FOUND IT UNNECESSARY
TO HEAR ANY ARGUMENT AND COUNSEL BECAME SO CONVINCED THAT THE
AUTHORITIES WERE CONCLUSIVE THAT HE DID NOT PRESS THE CASE.  FN11 
THESE CASES WERE REVIEWED MANY TIMES IN THIS COURT AND ELSEWHERE, AND
CITED FOR THE PROPOSITION THAT IN THE UNITED STATES, IN NOTEWORTHY
DISTINCTION FROM ENGLAND, THE ADMIRALTY FORFEITURE JURISDICTION WAS
EXCLUSIVE.  FN12  THIS CULMINATED IN A HOLDING IN 1868, THE EAGLE, 8
WALL.  15, 25, 26, THAT THE WORDS IN THE 1789 ACT GIVING ADMIRALTY
JURISDICTION IN FORFEITURE CASES WERE SUPERFLUOUS AND OF NO EFFECT
SINCE "THE GENERAL JURISDICTION IN ADMIRALTY EXISTS WITHOUT REGARD TO
IT." 

AGAINST THE BACKGROUND OF THESE CASES WE MAY CONSIDER SMITH V.
MARYLAND, 18 HOW.  71, WHICH THE COURT CITES FOR THE EXISTENCE OF THE
FORFEITURE EXCEPTION TO THE GENERAL RULE AS TO EXCLUSIVE ADMIRALTY
JURISDICTION OF IN REM PROCEEDINGS.  IN THAT CASE THE POWER OF THE
STATE TO PROTECT A FISHERY BY MAKING IT UNLAWFUL TO CATCH OYSTERS IN A
CERTAIN MANNER AND TO INFLICT A PENALTY OF FORFEITURE UPON A VESSEL
EMPLOYED IN VIOLATION OF THE LAW WAS UPHELD.  THE ENTIRE ARGUMENT WAS
DIRECTED AT CONSIDERATIONS FOREIGN TO THE ISSUE OF THIS CASE AND THE
JUDICIARY ACT WAS NOT EVEN MENTIONED; THE OPINION OF THE COURT DEALS
ALMOST EXCLUSIVELY WITH THE QUESTION OF WHETHER THE STATE STATUTE WAS
IN CONFLICT WITH THE COMMERCE CLAUSE OF THE CONSTITUTION.  THE COURT
HELD IN PASSING THAT THE MERE EXISTENCE OF FEDERAL ADMIRALTY
JURISDICTION DOES NOT PER SE BAR THE STATE FROM LEGISLATING FOR THE
PROTECTION OF ITS FISHERIES, A PROPOSITION WHICH NO ONE CAN DOUBT.  IT
IS APPARENT THAT THE ISSUE NOW BEFORE US, INTERPRETATION OF THE
JUDICIARY ACT, WAS NOT PRESENTED TO THE COURT NOR DECIDED BY IT IN THE
SMITH CASE.  THE COURT IN THE INSTANT CASE TREATS SMITH V. MARYLAND AS
A HOLDING FOR A PROPOSITION WHICH CAN FLOW FROM IT ONLY BY ACCIDENT. 

IF SMITH V. MARYLAND ACCIDENTALLY INTERPRETED THE JUDICIARY ACT, IT
DID SO IN A MANNER IN CONFLICT NOT ONLY WITH ALL THE CASES DECIDED
BEFORE IT IN WHICH THE ISSUE WAS SQUARELY CONSIDERED BUT WITH THE GREAT
NUMBER OF CASES DECIDED SINCE.  IN THE MOSES TAYLOR, 4 WALL.  411,
431(1866), OUR LEADING CASE, THE COURT DECLARED THAT "A PROCEEDING IN
REM, AS USED IN THE ADMIRALTY COURTS, IS NOT A REMEDY AFFORDED BY THE
COMMON LAW."  THE CONSIDERATIONS OF POLICY WHICH UNDERLAY THIS
INTERPRETATION OF THE JUDICIARY ACT WERE ATTRIBUTED TO JUSTICE STORY:
"'THE ADMIRALTY JURISDICTION,' SAYS MR. JUSTICE STORY, 'NATURALLY
CONNECTS ITSELF, ON THE ONE HAND, WITH OUR DIPLOMATIC RELATIONS AND THE
DUTIES TO FOREIGN NATIONS AND THEIR SUBJECTS; AND, ON THE OTHER HAND,
WITH THE GREAT INTERESTS OF NAVIGATION AND COMMERCE, FOREIGN AND
DOMESTIC.  THERE IS, THEN, A PECULIAR WISDOM IN GIVING TO THE NATIONAL
GOVERNMENT A JURISDICTION OF THIS SORT WHICH CANNOT BE YIELDED, EXCEPT
FOR THE GENERAL GOOD, AND WHICH MULTIPLIES THE SECURITIES FOR THE
PUBLIC PEACE ABROAD, AND GIVES TO COMMERCE AND NAVIGATION THE MOST
ENCOURAGING SUPPORT AT HOME.'"  THE MOSES TAYLOR, SUPRA, 430-431. 

THE LANGUAGE OF THE MOSES TAYLOR HAS BEEN REPEATED SO OFTEN THAT I
SHOULD HAVE THOUGHT IT TO BE A TRUISM OF THE LAW.  IN THE BELFAST, 7
WALL.  624, 644:  "THERE IS NO FORM OF ACTION AT COMMON LAW WHICH, WHEN
COMPARED WITH THE PROCEEDING IN REM IN THE ADMIRALTY, CAN BE REGARDED
AS A CONCURRENT REMEDY."  IN ROUNDS V. CLOVERPORT FOUNDRY CO., 237 U.S.
303, 306:  "THE PROCEEDING IN REM  ...  IS WITHIN THE EXCLUSIVE
JURISDICTION OF ADMIRALTY."  IN KNAPP, STOUT & CO. V. MCCAFFREY, 177
U.S. 638, 648:  "THE TRUE DISTINCTION BETWEEN SUCH PROCEEDINGS AS ARE
AND SUCH AS ARE NOT INVASIONS OF THE EXCLUSIVE ADMIRALTY JURISDICTION
IS THIS:  IF THE CAUSE OF ACTION BE ONE COGNIZABLE IN ADMIRALTY, AND
THE SUIT BE IN REM AGAINST THE THING ITSELF  ...  THE PROCEEDING IS
ESSENTIALLY ONE IN ADMIRALTY."  IN RED CROSS LINE V. ATLANTIC FRUIT
CO., 264 U.S. 109, 124:  "A STATE MAY NOT PROVIDE A REMEDY IN REM FOR
ANY CAUSE OF ACTION WITHIN THE ADMIRALTY JURISDICTION."  FN13 

CASES PRIOR TO SMITH V. MARYLAND EXPLICITLY HELD THAT FORFEITURES
WERE NOT TO BE ENFORCED BY AN IN REM ACTION AT COMMON LAW.  CASES SINCE
SMITH V. MARYLAND HAVE REPEATEDLY DECLARED THAT ADMIRALTY'S IN REM
JURISDICTION IS EXCLUSIVE OF STATE COURT ACTION.  I THEREFORE SEE NO
REASON FOR PLACING ANY RELIANCE ON THE SMITH CASE WHICH ONLY
CONSEQUENTIALLY AFFECTED AN ISSUE TO WHICH IT GAVE NO CONSIDERATION AT
ALL; AND FOR PURPOSES OF SETTLING A JURISDICTIONAL ISSUE SUCH AS THIS,
THE ENGLISH PRACTICE, WHICH NEED GIVE NO CONSIDERATION TO THE
COMPLEXITIES OF DUAL SOVEREIGNTY AND DIVERSE STATE LAWS, SEEMS
PECULIARLY INAPPLICABLE.  BY PERMITTING MARITIME SUITS AGAINST PERSONS
IN STATE COURTS AND BY DENYING THE STATE COURTS JURISDICTION OF SUITS
AGAINST VESSELS, THE RIGHT TO TRIAL BY JURY IS ADEQUATELY PRESERVED AT
THE SAME TIME THAT THE POLICY OF ULTIMATE EXCLUSIVE NATIONAL REGULATION
OF SHIPS IN COMMERCE IS SAVED. 

FN1  FOR A FACT SITUATION ANALOGOUS TO THE INSTANT CASE IN WHICH THE
STATE PROTECTED ITS FISHING GROUNDS THROUGH AN IN PERSONAM ACTION, SEE
MANCHESTER V. MASSACHUSETTS, 139 U.S. 240.  SEE ALSO, AS CASES
CONCERNING THE STATE CRIMINAL JURISDICTION IN THE MARITIME FIELD,
UNITED STATES V. BEVANS, 3 WHEAT.  336, AND WILDENHUS'S CASE, 120 U.S.
1. 

FN2  SEE, E.G., AS CASES ON LIENS IN WRONGFUL DEATH ACTIONS, THE J.E.
RUMBELL, 148 U.S. 1, AND THE HAMILTON, 207 U.S. 398. 

FN3  IT IS PARTICULARLY IMPORTANT IN TIME OF WAR, WHEN EVERY VESSEL
IS IN CONSTANT USE, THAT IN REM PROCEEDINGS BE STRICTLY CONTROLLED. 
THIS IS PARTIALLY DONE BY THE SUITS IN ADMIRALTY ACT, 41 STAT. 525, FOR
A BRIEF DISCUSSION OF WHICH SEE CLYDE-MALLORY LINES V. THE EGLANTINE,
317 U.S. 395. 

FN4  "BUT THE LAWS OF NAVIGATION WERE NOWHERE DISOBEYED AND CONTEMNED
SO OPENLY AS IN NEW ENGLAND.  THE PEOPLE OF MASSACHUSETTS BAY WERE FROM
THE FIRST DISPOSED TO ACT, AS IF INDEPENDENT OF THE MOTHER-COUNTRY; AND
HAVING A GOVERNOR AND MAGISTRATES OF THEIR OWN CHOICE, IT WAS VERY
DIFFICULT TO ENFORCE ANY REGULATIONS WHICH CAME FROM THE ENGLISH
PARLIAMENT, AND WERE ADVERSE TO THEIR COLONIAL INTERESTS."  REEVES, THE
LAW OF SHIPPING, 56(1807). 

FN5  2 BROWN, CIVIL AND ADMIRALTY LAW, 2D ED., 491(1802). 

FN6  FOR AN ACCOUNT OF THE DEVELOPMENT OF ADMIRALTY JURISDICTION IN
THE COLONIES, SEE 4 ANDREWS, THE COLONIAL PERIOD OF AMERICAN HISTORY,
CHAP. 8; ROOT, RELATIONS OF PENNSYLVANIA WITH THE BRITISH GOVERNMENT,
1696-1765, CHAP. 4; THE ARGUMENT MADE BY DANIEL WEBSTER AS COUNSEL IN
UNITED STATES V. BEVANS, 3 WHEAT.  336, 379, ET SEQ.; THE REPORTER'S
NOTE TO UNITED STATES V. WILTBERGER, 5 WHEAT.  76, 113. 

FN7  2 CHALMERS, OPINIONS OF EMINENT LAWYERS, 187(1814); ANDREWS,
SUPRA, 169; WEBSTER, SUPRA, 3 WHEAT.  AT 383. 

FN8  SEE E.G. MANRO V. ALMEIDA, 10 WHEAT.  473, 489; WARING V.
CLARKE, 5 HOW.  441, 454; NEW JERSEY STEAM NAVIGATION CO. V. MERCHANTS'
BANK, 6 HOW.  344, 389; AND SEE THE GENESEE CHIEF, 12 HOW.  443. 

FN9  IN THE SAMUEL, THE CLAIMANT CONTENDED THAT SINCE THE ACTION WAS
BEGUN BY AN INFORMATION RATHER THAN A LIBEL, THE CASE WAS NOT SUBJECT
TO THE ADMIRALTY JURISDICTION.  THE COURT HELD THAT "WHERE THE CAUSE IS
OF ADMIRALTY JURISDICTION, AND THE PROCEEDING IS BY INFORMATION, THE
SUIT IS NOT WITHDRAWN, BY THE NATURE OF THE REMEDY, FROM THE
JURISDICTION TO WHICH IT OTHERWISE BELONGS."  P. 14. 

FN10  JUSTICE CHASE IN THE COURSE OF ARGUMENT COMMENTED FROM THE
BENCH THAT HE THOUGHT LA VENGEANCE A WELL CONSIDERED CASE.  HIS COMMENT
LEAVES NO DOUBT THAT HE CONSIDERED THE ADMIRALTY JURISDICTION FOR
FORFEITURE EXCLUSIVE:  "THE REASON OF THE LEGISLATURE FOR PUTTING
SEIZURES OF THIS KIND ON THE ADMIRALTY SIDE OF THE COURT WAS THE GREAT
DANGER TO THE REVENUE, IF SUCH CASES SHOULD BE LEFT TO THE CAPRICE OF
JURIES."  P. 446. 

FN11  WHELAN V. UNITED STATES, 7 CRANCH 112. 

FN12  "THIS COURT DECIDED, AS EARLY AS 1805(2 CRANCH 405), IN THE
CASE OF THE SALLY, THAT THE FORFEITURE OF A VESSEL, UNDER THE ACT OF
CONGRESS AGAINST THE SLAVE-TRADE, WAS A CASE OF ADMIRALTY AND MARITIME
JURISDICTION, AND NOT OF COMMON LAW.  AND SO IT HAD DONE BEFORE, IN THE
CASE OF LA VENGEANCE."  WARING V. CLARKE, 5 HOW.  441, 458.  "ALL THE
CASES THUS ARISING UNDER THE REVENUE AND NAVIGATION LAWS WERE HELD TO
BE CIVIL CAUSES OF ADMIRALTY AND MARITIME JURISDICTION WITHIN THE WORDS
OF THE CONSTITUTION, AND, AS SUCH, WERE PROPERLY ASSIGNED TO THE
DISTRICT COURT, IN THE ACT OF 1789, AS PART OF ITS ADMIRALTY
JURISDICTION."  NEW JERSEY STEAM NAVIGATION CO. V. MERCHANTS' BANK, 6
HOW.  344, 389.  AND SEE TO THE SAME EFFECT THE MARGARET, 9 WHEAT. 
421, 427; THE SARAH, 8 WHEAT.  391, 394; THE BELFAST, 7 WALL.  624,
638.  FOR ACCEPTANCE OF THIS VIEW AND A CRITICISM OF THE RESULT SEE THE
DISSENTING OPINION IN JACKSON V. THE MAGNOLIA, 20 HOW.  296, 309.  IT
IS WORTHY OF NOTE THAT THIS OPINION BY MR. JUSTICE DANIEL MAKES AN
ARGUMENT VERY SIMILAR TO THAT NOW MADE BY THE COURT AND RELIES AS DOES
THE COURT ON A PASSAGE FROM KENT.  THE MAJORITY OF THE COURT DID NOT
ACCEPT DANIEL'S POSITION.  KENT HIMSELF ACKNOWLEDGED THAT THE VIEW HE
HELD WAS NOT THE LAW AS DECLARED IN THIS COURT BUT HE FELT THAT LA
VENGEANCE WAS NOT "SUFFICIENTLY CONSIDERED."  1 KENT'S COMMENTARIES,
12TH ED., 376.  IN DE LOVIO V. BOIT, FED. CAS. NO. 3,776, 2 GALLIS. 
398, 474, JUSTICE STORY SITTING AS A CIRCUIT JUDGE SAID:  "IT HAS  ...
BEEN REPEATEDLY AND SOLEMNLY HELD BY THE SUPREME COURT, THAT ALL
SEIZURES UNDER LAWS OF IMPOST, NAVIGATION AND TRADE,  ...  ARE CAUSES
OF ADMIRALTY AND MARITIME JURISDICTION." 

FN13  ADDITIONAL STATEMENTS TO THE SAME EFFECT ARE:  HINE V. TREVOR,
4 WALL.  555, 571; LEON V. GALCERAN, 11 WALL.  185, 188; STEAMBOAT CO.
V. CHASE, 16 WALL.  522, 530; THE LOTTAWANNA, 20 WALL.  201, 218;
EDWARDS V. ELLIOTT, 21 WALL.  532, 556; NORTON V. SWITZER, 93 U.S. 355,
365; JOHNSON V. CHICAGO & PACIFIC ELEVATOR CO., 119 U.S. 388, 397; THE
J. E. RUMBELL, 148 U.S. 1, 12; MORAN V. STURGES, 154 U.S. 256, 276; THE
GLIDE, 167 U.S. 606, 615; THE ROBERT W. PARSONS, 191 U.S. 17, 37;
CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372, 383; PANAMA R. CO. V.
VASQUEZ, 271 U.S. 557, 561. 
..END :






R.F.C. V. BANKERS TRUST CO., 318 U.S. 163 


NOS. 387-388.  ARGUED JANUARY 8, 1943.  - DECIDED FEBRUARY 8, 1943.  -
129 F.2D 122, REVERSED. 


1.  THE TERM "DEBTOR'S ESTATE" AS USED IN SEC. 77(C)(12) OF THE
BANKRUPTCY ACT EMBRACES CASH DEPOSITED WITH AN INDENTURE TRUSTEE.  P.
167. 

2.  THE SERVICES AND EXPENSES OF THE INDENTURE TRUSTEE IN THIS CASE
WERE RENDERED AND INCURRED "IN CONNECTION WITH THE PROCEEDINGS AND
PLAN" OF REORGANIZATION, WITHIN THE MEANING OF SEC. 77(C)(12) OF THE
BANKRUPTCY ACT.  P. 167. 

3.  SECTION 77(C)(12) OF THE BANKRUPTCY ACT, WHICH AUTHORIZES, WITHIN
SUCH MAXIMUM AS MAY BE FIXED BY THE INTERSTATE COMMERCE COMMISSION, AN
ALLOWANCE OUT OF THE DEBTOR'S ESTATE FOR REASONABLE EXPENSES INCURRED
IN CONNECTION WITH THE PROCEEDINGS AND PLAN OF REORGANIZATION, AND FOR
REASONABLE COMPENSATION FOR SERVICES IN CONNECTION THEREWITH BY
TRUSTEES UNDER INDENTURES, HELD APPLICABLE TO THE CLAIM HERE OF AN
INDENTURE TRUSTEE FOR SERVICES AND EXPENSES.  P. 167. 

THAT THE CLAIM IS BASED UPON A PROVISION OF THE INDENTURE; IS SECURED
BY A LIEN ON THE TRUST ESTATE UNDER THE INDENTURE; AND IS FOR SERVICES
REQUIRED BY THE INDENTURE TO BE RENDERED THE TRUST ESTATE IN
FULFILLMENT OF THE TRUSTEE'S OBLIGATIONS, DOES NOT RENDER SEC.
77(C)(12) INAPPLICABLE. 

4.  THE FUNCTION OF THE INTERSTATE COMMERCE COMMISSION UNDER SEC.
77(C)(12) OF THE BANKRUPTCY ACT IS THAT OF A FACT-FINDING BODY.  THE
BANKRUPTCY COURT MAY NOT SET ASIDE THE COMMISSION'S FINDINGS OF FACT
WHEN THEY ARE SUPPORTED BY THE EVIDENCE, BUT MAY DETERMINE ALL
QUESTIONS OF LAW.  THE ONLY QUESTION OF LAW WHICH CAN ARISE WITH
RESPECT TO A MAXIMUM AMOUNT FIXED BY THE COMMISSION IS WHETHER THERE IS
SUBSTANTIAL EVIDENCE TO SUPPORT THE COMMISSION'S FINDING.  IF THERE IS
NOT, THE COURT MAY SET ASIDE THE FINDING AND REFER THE MATTER BACK TO
THE COMMISSION.  THE COURT'S ACTION UPON THE CLAIM IS APPEALABLE,
INDEPENDENTLY OF OTHER ISSUES, TO THE CIRCUIT COURT OF APPEALS.  P.
170. 

5.  AS HERE CONSTRUED AND APPLIED, SEC. 77(C)(12) DOES NOT CONTRAVENE
ART. III, SEC. 1 OF THE FEDERAL CONSTITUTION, OR THE FIFTH AMENDMENT. 
P. 168. 

RECONSTRUCTION FINANCE CORPORATION V. BANKERS TRUST CO., TRUSTEE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 317 U.S. 615, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
BANKRUPTCY COURT MAKING AN ALLOWANCE OF EXPENSES TO A TRUSTEE UNDER A
MORTGAGE OF PROPERTY OF A RAILROAD COMPANY IN REORGANIZATION UNDER SEC.
77 OF THE BANKRUPTCY ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY ARISES IN A PROCEEDING UNDER SEC. 77 OF THE
BANKRUPTCY ACT  FN1  FOR THE REORGANIZATION OF THE ST. LOUIS-SAN
FRANCISCO RAILWAY COMPANY SYSTEM, PART OF WHICH IS THE KANSAS CITY,
FORT SCOTT & MEMPHIS RAILWAY, UNDER A MORTGAGE OF WHOSE PROPERTY THE
RESPONDENT BANKERS TRUST COMPANY IS TRUSTEE.  THE RESPONDENT OBTAINED
LEAVE TO INTERVENE IN THE DISTRICT COURT AND BEFORE THE INTERSTATE
COMMERCE COMMISSION,  FN2  AND PARTICIPATED IN THE PROCEEDINGS. 

THE COMMISSION APPROVED A PLAN OF REORGANIZATION, AND THE DISTRICT
COURT, WITH THE PLAN BEFORE IT, DIRECTED THE FILING OF ALL PETITIONS
FOR ALLOWANCE OF "COMPENSATION FOR SERVICES RENDERED OR FOR EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED EITHER UNDER CLAUSE
(12) OF SUBSECTION (C) OF SECTION 77.  FN3  ..  OR OTHERWISE  ...  " 

THE RESPONDENT FILED TWO SUCH PETITIONS, NUMBERED RESPECTIVELY 266
AND 267, EACH PRAYING STATED AMOUNTS AS COMPENSATION FOR SERVICES AS
INDENTURE TRUSTEE, FOR COUNSEL FEES, AND FOR EXPENSES.  THE SUMS NAMED
AND THE SERVICES RECITED IN THE TWO PETITIONS WERE IDENTICAL, BUT IN
267 THE COMPENSATION WAS CLAIMED UNDER SEC. 77(C)(12), AND THE RIGHT
WAS RESERVED TO OBJECT TO THE JURISDICTION OF THE COMMISSION.  THAT
PETITION WAS SENT BY THE COURT TO THE COMMISSION FOR THE FIXING OF A
MAXIMUM ALLOWANCE.  PRIOR TO THE COMMISSION'S ACTION THEREON, 266 CAME
ON FOR HEARING BY THE COURT. 

IN 266 THE RESPONDENT ALLEGED THAT THE SERVICES HAD "NOT BEEN
RENDERED OR INCURRED 'IN CONNECTION WITH THE PROCEEDINGS AND PLAN'" FOR
REORGANIZATION, BUT BY RESPONDENT AS TRUSTEE UNDER THE MORTGAGE IN
PERFORMANCE OF ITS FIDUCIARY DUTIES, FOR THE BENEFIT OF THE TRUST
ESTATE, AS DISTINGUISHED FROM THE DEBTOR'S ESTATE. 

OVER OPPOSITION BY PETITIONER, A CREDITOR AND AN INTERVENOR, THE
COURT RULED THAT SEC. 77(C)(12) DID NOT APPLY, THAT THE MORTGAGE
RENDERED THE CLAIM A PROPER CHARGE ON THE MORTGAGED PROPERTY, AND
DIRECTED THE RESPONDENT TO PAY ITSELF THE AMOUNTS CLAIMED OUT OF CASH
DEPOSITED WITH IT AS INDENTURE TRUSTEE. 

THE COMMISSION HELD HEARINGS ON 267 AND ON OTHER CLAIMS FOR
ALLOWANCES UNDER SEC. 77(C)(12).  IN A REPORT IT HELD THAT IT HAD
JURISDICTION TO FIX A MAXIMUM AMOUNT TO COVER THE ITEMS EMBRACED IN
RESPONDENT'S CLAIM IN 267, WHICH IT FOUND WERE RENDERED IN CONNECTION
WITH THE PROCEEDINGS AND THE PLAN DURING THE PENDENCY OF THE SEC. 77
PROCEEDING.  FN4  IT FIXED MAXIMA BELOW THE AMOUNTS CLAIMED FOR THE
SEVERAL ITEMS OF SERVICE AND EXPENSE. 

THE COURT REFRAINED FROM PASSING ON THIS PORTION OF THE COMMISSION'S
REPORT.  THE PETITIONER APPEALED FROM THE ORDER IN 266, AND THE CIRCUIT
COURT OF APPEALS AFFIRMED THE JUDGMENT.  FN5  DUE TO THE IMPORTANCE OF
THE QUESTIONS RAISED IN THE ADMINISTRATION OF THE STATUTE AND A
CONFLICT OF DECISION,  FN6  WE GRANTED CERTIORARI. 

COMMISSION TO FIX A MAXIMUM ALLOWANCE "OUT OF THE DEBTOR'S ESTATE" FOR
THE EXPENSES (INCLUDING ATTORNEYS' FEES) AND SERVICES OF "TRUSTEES
UNDER INDENTURES," FOR EXPENSES INCURRED AND SERVICES RENDERED "IN
CONNECTION WITH THE PROCEEDINGS AND PLAN."  IT EMPHASIZES THAT THE
EXPENSES, THE FEES, AND THE SERVICES MUST BE "REASONABLE" AND THE
ALLOWANCE THEREFOR "REASONABLE."  THE COURT IS TO MAKE THE ALLOWANCE
"WITHIN SUCH MAXIMUM LIMITS AS ARE FIXED BY THE COMMISSION." 

THE QUESTIONS PRESENTED ARE:  (1) DOES THE SUBSECTION APPLY TO THE
RESPONDENT'S CLAIMS, AND (2) IF IT DOES, IS IT VALID?  WE ANSWER BOTH
IN THE AFFIRMATIVE. 

FIRST.  THE RESPONDENT CONTENDS THAT THE EXPENSES AND SERVICES FOR
WHICH COMPENSATION WAS ALLOWED WERE NOT THOSE REFERRED TO IN SEC.
77(C)(12).  THIS, NOTWITHSTANDING ACQUIESCENCE IN THE HOLDINGS OF THE
COURT BELOW, WHICH WE THINK CORRECT, THAT THE TERM "DEBTOR'S ESTATE" AS
USED IN THE ACT EMBRACES CASH DEPOSITED WITH THE INDENTURE TRUSTEE AND
THAT THE SERVICES AND EXPENSES IN QUESTION WERE RENDERED AND INCURRED
"IN CONNECTION WITH THE PROCEEDINGS AND PLAN."  FN8 

THE BASIS OF THE CONTENTION AND OF THE DECISION BELOW IS THAT THE
SERVICES AND EXPENSES IN QUESTION ARE "NOT WITHIN THE MEANING OF" THE
SUBSECTION AS THE CLAIM FOR THEIR ALLOWANCE IS BASED UPON THE CONTRACT
EXPRESSED IN THE MORTGAGE  FN9 AND IS FOR SERVICES REQUIRED BY THE
MORTGAGE TO BE RENDERED THE TRUST ESTATE IN FULFILMENT OF THE
RESPONDENT'S OBLIGATIONS. 

THE SUBSECTION APPLIES IN TERMS TO ALLOWANCE OF CLAIMS SUCH AS THOSE
HERE IN ISSUE.  NO LEGISLATIVE HISTORY IS CITED TO THE CONTRARY.  THE
STATUTE DEALS WITH OTHER CLAIMS ARISING OUT OF CONTRACT AND SECURED BY
LIENS FIXED OR INCHOATE, AND NO BASIS IS SUGGESTED FOR EXCLUDING THE
RESPONDENT'S CLAIM FROM ITS SWEEP. 

SECOND.  THE MAIN ARGUMENT ADVANCED IN SUPPORT OF THE JUDGMENT IS
THAT TO APPLY SEC. 77(C)(12) TO THE RESPONDENT'S CLAIMS WOULD VIOLATE
THE FIFTH AMENDMENT OF THE CONSTITUTION, BY DEPRIVING THE COURTS OF
POWER TO DETERMINE WHETHER THE COMMISSION'S DECISION WAS CONTRARY TO
LAW OR WITHOUT EVIDENCE TO SUPPORT IT; AND BY DESTROYING RESPONDENT'S
VESTED PROPERTY RIGHTS.  IN ADDITION, IT IS URGED THAT BY ART. III,
SEC. 1, THE JUDICIAL POWER OF THE UNITED STATES IS VESTED EXCLUSIVELY
IN THE COURTS AND MATTERS OF PRIVATE RIGHT MAY NOT BE RELEGATED TO
ADMINISTRATIVE BODIES FOR TRIAL.  THE STATUTE, FAIRLY APPLIED, IN THE
CIRCUMSTANCES DISCLOSED BY THE RECORD DOES NOT CONTRAVENE ANY
CONSTITUTIONAL PROVISION. 

THREE DIVERSE CONCLUSIONS RESPECTING THE EFFECT OF SEC. 77(C)(12)
HAVE BEEN EXPRESSED BY THE COURTS.  IT HAS BEEN HELD THAT THE MAXIMUM
FIXED BY THE COMMISSION IS IN ALL CIRCUMSTANCES BINDING AND
UNALTERABLE.  FN10  THE COURT BELOW HAS CONCLUDED THAT THE SUBSECTION
HAS NO APPLICATION TO THE CLAIMS OF AN INDENTURE TRUSTEE, SECURED BY A
LIEN ON THE TRUST ESTATE PURSUANT TO THE MORTGAGE CONTRACT.  THE
DISTRICT COURT OF CONNECTICUT HAS DECIDED THAT THE COURT MAY SET ASIDE
THE MAXIMUM NAMED BY THE COMMISSION, IF FOUND UNREASONABLY LOW, AND
RETURN THE MATTER TO THE COMMISSION FOR A FRESH DETERMINATION.  FN11
THE PETITIONER STATES ITS VIEW THAT "WHILE THE STATUTE IS NOT ENTIRELY
CLEAR, JUDICIAL REVIEW OF THE MAXIMUM IS PERMITTED."  AFTER MENTIONING
MATTERS OF LAW WHICH ARE FOR THE COURT'S DETERMINATION ON REVIEW OF THE
COMMISSION'S REPORT, SUCH AS WHETHER THE SERVICES IN QUESTION ARE TO BE
COMPENSATED UNDER THE PROVISIONS OF THE ACT, AND OTHERS WE NEED NOT
MENTION, THE PETITIONER REFERS TO SEC. 77(E)  FN12  WHICH PROVIDES THAT
THE JUDGE SHALL APPROVE THE PLAN IF SATISFIED, INTER ALIA, THAT THE
"AMOUNTS TO BE PAID  ...  FOR EXPENSES AND FEES INCIDENT TO THE
REORGANIZATION  ...  ARE REASONABLE, (AND) ARE WITHIN SUCH MAXIMUM
LIMITS AS FIXED BY THE COMMISSION  ...  "  IT IS SUGGESTED THAT IF THE
JUDGE FINDS THAT ANY ALLOWANCE WITHIN THE MAXIMUM WOULD BE UNREASONABLY
LOW HE MAY THEREUPON, UNDER SEC. 77(E), DISAPPROVE THE PLAN AND EITHER
DISMISS THE PROCEEDING OR REFER THE CAUSE BACK TO THE COMMISSION FOR
FURTHER ACTION. 

NONE OF THESE VIEWS SEEMS TO US RIGHTLY TO CONSTRUE THE STATUTE.  WE
THINK THE CONGRESS DID NOT INTEND TO DENY THE COURTS ALL POWER OF
REVIEW OF COMMISSION ACTION IN SUCH CASES.  THE STATUTE PLAINLY
REQUIRES REFERENCE TO THE COMMISSION OF CLAIMS OF THE CLASS UNDER
CONSIDERATION, A HEARING BY THAT BODY, THE SETTING OF A MAXIMUM AND
ACTION BY THE COURT ON THE FOOTING OF THE COMMISSION'S REPORT.  IT DOES
NOT CONTEMPLATE A HEARING DE NOVO ON THE ISSUE OF THE REASONABLE WORTH
OF THE SERVICES RENDERED OR THE PROPRIETY OF THE EXPENSES INCURRED, OR
A REAPPRAISAL BY THE COURT OF THE FACTS.  MOREOVER THE PROCEDURE
SUGGESTED BY PETITIONER DOES NOT COMPORT WITH THE EVIDENT PURPOSE OF
SEC. 77(C)(12) WHICH APPEARS TO TREAT THE COURT'S ACTION WITH RESPECT
TO SUCH CLAIMS AS A MATTER DISTINCT FROM HIS FINAL ACTION ON THE PLAN
AS A WHOLE UNDER SEC. 77(E). 

OUR CONCLUSION IS THAT THE FUNCTION COMMITTED BY THE LAW TO THE
COMMISSION IS THE ORDINARY ONE REPOSED IN A FACT FINDING BODY AND THAT
ITS FINDINGS, SUPPORTED BY EVIDENCE, MAY NOT BE DISTURBED BY A COURT. 
THIS CONSTRUCTION OF THE ACT LEAVES THE COURT FREE TO DECIDE UPON THE
BASIS OF THE COMMISSION'S REPORT ALL QUESTIONS OF LAW.  WITH RESPECT TO
THE AMOUNT SET AS A MAXIMUM THE ONLY QUESTION OF LAW WHICH CAN ARISE IS
WHETHER THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE COMMISSION'S
FINDING.  IF THERE IS NOT THE COURT MAY SO HOLD, SET ASIDE THE FINDING
AND RETURN THE MATTER TO THE COMMISSION.  UNDER THE TERMS OF THE
SUBSECTION THE JUDGE'S ACTION UPON THE CLAIM IS SUBJECT TO APPEAL
INDEPENDENTLY OF OTHER ISSUES, TO THE CIRCUIT COURT OF APPEALS. 

THUS UNDERSTOOD, WE FIND NO INFIRMITY IN THE STATUTE.  THE COMMITTAL
TO THE COMMISSION OF THE FACT FINDING OFFICE RAISES NO SUBSTANTIAL
QUESTION UNDER THE FIFTH AMENDMENT.  IN ACTIONS AT LAW A JURY IS THE
TRADITIONAL TRIER OF FACTS, WHOSE FUNCTION AS SUCH IS PRESERVED AND
GUARANTEED BY THE FUNDAMENTAL LAW.  BUT COURTS OF EQUITY, OF ADMIRALTY
AND OF BANKRUPTCY, BY THEMSELVES AND THEIR MANDATORIES EXAMINE AND
DECIDE DISPUTED QUESTIONS OF FACT; AND NO REASON IS PERCEIVED WHY
CLAIMS OF THE SORT HERE INVOLVED SHOULD NOT BE LITIGATED, AS ARE OTHER
CLAIMS AGAINST BANKRUPT ESTATES, BY SUCH MACHINERY AND IN SUCH MANNER
AS CONGRESS SHALL PRESCRIBE, SAVING TO THE CLAIMANT THE RIGHT OF NOTICE
AND HEARING, AND SUCH REVIEW AS IS PROVIDED BY THE STATUTE AS WE
CONSTRUE IT. 

AT LAW THE JURY'S VERDICT SETTLES ISSUES OF FACT AND DEFINES RIGHTS,
SUBJECT ONLY TO QUESTIONS OF LAW.  IN ADMINISTRATIVE PROCEDURE, THE
FINDINGS OF THE ADMINISTRATIVE BODY MAY LIKEWISE BE MADE CONCLUSIVE OF
FACT ISSUES, AND EQUALLY DEFINE RIGHTS AND DUTIES SUBJECT ONLY TO
QUESTIONS OF LAW.  NO QUESTION IS MADE AS TO THE COMPETENCY OF THE
INTERSTATE COMMERCE COMMISSION TO APPRAISE EVIDENCE AND TO DRAW AN
INFORMED AND INTELLIGENT CONCLUSION AS TO WHAT IS A MAXIMUM REASONABLE
COMPENSATION FOR SERVICES RENDERED.  INDEED, SINCE MOST OF THE SERVICES
ARE PERFORMED IN CONNECTION WITH ITS ACTIVITIES IT IS PROBABLY IN A
BETTER POSITION TO JUDGE OF THEIR VALUE TO THE REORGANIZATION THAN ANY
COURT OR OTHER FACT FINDING INSTRUMENTALITY. 

TO PRESCRIBE A METHOD OF TRIAL OF FACTS, SUBJECT TO A COURT'S
SUPERVISION IN MATTERS OF LAW, IS NOT, AS RESPONDENT SUGGESTS, TO
DESTROY VESTED RIGHTS, BUT TO PROVIDE A METHOD OF APPRAISING AND
LIQUIDATING THEM.  THE STATUTE AWARDS THE CLAIM PRIORITY OF PAYMENT, SO
THAT RESPONDENT IS NOT CALLED UPON, AS ARE SOME OTHER CLASSES OF
CREDITORS, TO SUFFER AN ABATEMENT OF ITS CLAIM. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT
WITH INSTRUCTIONS TO PROCEED IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  MARCH 3, 1933, C. 204, 47 STAT. 1474, AS AMENDED; 11 U.S.C. SEC.
205. 

FN2  PURSUANT TO SEC. 77(C)(13); 11 U.S.C. SEC. 205(C)(13). 

FN3  11 U.S.C. SEC. 205(C)(12). 

FN4  ST. LOUIS-SAN FRANCISCO RY. CO. REORGANIZATION, 249 I.C.C. 195,
218. 

FN5  129 F.2D 122. 

FN6  IN RE NEW YORK, N.H. & H.R. CO., 46 F.SUPP.  236. 

FN7  "WITHIN SUCH MAXIMUM LIMITS AS ARE FIXED BY THE COMMISSION, THE
JUDGE MAY MAKE AN ALLOWANCE, TO BE PAID OUT OF THE DEBTOR'S ESTATE, FOR
THE ACTUAL AND REASONABLE EXPENSES (INCLUDING REASONABLE ATTORNEY'S
FEES) INCURRED IN CONNECTION WITH THE PROCEEDINGS AND PLAN BY PARTIES
IN INTEREST AND BY REORGANIZATION MANAGERS AND COMMITTEES OR OTHER
REPRESENTATIVES OF CREDITORS AND STOCKHOLDERS, AND WITHIN SUCH LIMITS
MAY MAKE AN ALLOWANCE TO BE PAID OUT OF THE DEBTOR'S ESTATE FOR THE
ACTUAL AND REASONABLE EXPENSES INCURRED IN CONNECTION WITH THE
PROCEEDINGS AND PLAN AND REASONABLE COMPENSATION FOR SERVICES IN
CONNECTION THEREWITH BY TRUSTEES UNDER INDENTURES, DEPOSITARIES AND
SUCH ASSISTANTS AS THE COMMISSION WITH THE APPROVAL OF THE JUDGE MAY
ESPECIALLY EMPLOY.  APPEALS FROM ORDERS OF THE COURT FIXING SUCH
ALLOWANCES MAY BE TAKEN TO THE CIRCUIT COURT OF APPEALS INDEPENDENTLY
OF OTHER APPEALS IN THE PROCEEDING AND SHALL BE HEARD SUMMARILY.  THE
COMMISSION SHALL, AT SUCH TIME OR TIMES AS IT MAY DEEM APPROPRIATE,
AFTER HEARING, FIX THE MAXIMUM ALLOWANCES WHICH MAY BE ALLOWED BY THE
COURT PURSUANT TO THE PROVISIONS OF PARAGRAPH (12) OF THIS SUBSECTION
(C) AND, AFTER HEARING IF THE COMMISSION SHALL DEEM IT NECESSARY, THE
MAXIMUM COMPENSATION WHICH MAY BE ALLOWED BY THE COURT PURSUANT TO THE
PROVISIONS OF PARAGRAPH (2) OF THIS SUBSECTION (C)." 

FN8  NONE OF THE SERVICES WERE ROUTINE ADMINISTRATIVE SERVICES
CURRENTLY RENDERED BY THE TRUSTEE; NONE WERE OF NON-ROUTINE CHARACTER
RENDERED PRIOR TO THE INCEPTION OF THE REORGANIZATION PROCEEDING.  IF
THEY HAD BEEN OF THESE DESCRIPTIONS THE PETITIONER CONCEDES ALLOWANCE
FOR THEM WOULD BE A MATTER FOR THE COURT UNDER SEC. 77(E), 11 U.S.C.
205(E). 

FN9  ARTICLE TWENTY-THIRD OF THE INDENTURE:  "THE TRUSTEES SHALL BE
ENTITLED TO REASONABLE COMPENSATION FOR ALL SERVICES RENDERED BY THEM
IN THE EXECUTION OF THE TRUSTS HEREBY CREATED, WHICH COMPENSATION AS
WELL AS ALL REASONABLE EXPENSES NECESSARILY INCURRED AND ACTUALLY
DISBURSED HEREUNDER, THE RAILWAY COMPANY AGREES TO PAY AND HEREBY
CHARGES ON THE TRUST ESTATE."    FN10  IN RE CHICAGO, M., ST. P. & P.R.
CO., 121 F.2D 371; IN RE CHICAGO & N.W. RY. CO., 35 F.SUPP.  230; IN RE
CHICAGO G.W.R. CO., 29 F.SUPP.  149.  IT IS SUGGESTED THIS VIEW IS
SUSTAINED BY THE LEGISLATIVE HISTORY OF THE SECTION.  BUT THE CHANGES
MADE BY AMENDMENT IN ANOTHER SECTION (77(E)) ARE NOT HELPFUL; AND THE
TESTIMONY BEFORE THE JUDICIARY COMMITTEE OF THE HOUSE IS NEITHER THE
SORT OF LEGISLATIVE MATERIAL THIS COURT HOLDS RELEVANT TO THE
CONSTRUCTION OF A STATUTE, NOR IS IT CLEAR OR DEFINITE UPON THE POINT
AT ISSUE. 

FN11  IN RE NEW YORK, N.H. & H.R. CO., SUPRA, NOTE 6. 

FN12  11 U.S.C. 205(E). 

MR. JUSTICE DOUGLAS, CONCURRING: 

WHILE I CONCUR IN THE RESULT AND IN MOST OF THE OPINION OF THE COURT,
I AM IN DISAGREEMENT WITH THE MAJORITY ON ONE PHASE OF THE CASE. 

I DO NOT THINK THAT THE MAXIMUM ALLOWANCE MADE BY THE COMMISSION FOR
FEES AND EXPENSES IS SUBJECT TO REVIEW BY THE DISTRICT COURT.  SEC.
77(E)(2) NOW PROVIDES THAT THE JUDGE SHALL APPROVE THE PLAN IF
SATISFIED THAT THE AMOUNTS TO BE PAID FOR FEES AND EXPENSES HAVE BEEN
DISCLOSED, "ARE REASONABLE, ARE WITHIN SUCH MAXIMUM LIMITS AS ARE FIXED
BY THE COMMISSION, AND ARE WITHIN SUCH MAXIMUM LIMITS TO BE SUBJECT TO
THE APPROVAL OF THE JUDGE."  PRIOR TO THE 1935 AMENDMENTS TO SEC. 77,
THAT PROVISION, THEN CONTAINED IN SUBSECTION (G)(2), READ DIFFERENTLY. 
THOUGH SUBSECTION (F) THEN STATED THAT THE COMMISSION HAD TO "FIX THE
MAXIMUM COMPENSATION AND REIMBURSEMENT" WHICH MIGHT BE ALLOWED BY THE
COURT, SUBSECTION (G)(2) PROVIDED FOR APPROVAL OF THE PLAN BY THE JUDGE
IF HE WAS SATISFIED THAT ALL SUCH AMOUNTS "HAVE BEEN FULLY DISCLOSED
AND ARE REASONABLE, OR ARE TO BE SUBJECT TO THE APPROVAL OF THE
JUDGE."  THE CHANGES MADE BY THE 1935 AMENDMENTS ARE SIGNIFICANT.  THE
TOTAL AMOUNT OF FEES AND EXPENSES FIXED BY THE COMMISSION BECAME A
CEILING BENEATH WHICH THE JUDGE COULD MAKE READJUSTMENTS BUT ABOVE
WHICH HE COULD NOT GO.  PRIOR TO THOSE AMENDMENTS JUDICIAL REVIEW OF
THE MAXIMUM FIXED BY THE COMMISSION MIGHT HAVE BEEN PERMISSIBLE.  BUT
THE CHANGES MADE IN 1935 CLEARLY INDICATE, AS JUDGE EVANS SAID IN IN RE
CHICAGO, M., ST. P. & P.R. CO., 121 F.2D 371, 374, THAT THE "COURT WAS
ULTIMATELY TO DETERMINE THE AMOUNT OF THE FEES," ITS ACTION HOWEVER
BEING "LIMITED BY THE MAXIMUM FIXED BY THE COMMISSION."  THE
LEGISLATIVE HISTORY OF THE 1935 AMENDMENTS SUPPORTS THAT VIEW.  FN1
INDEED THE COMMITTEE REPORTS STATED  FN2 THAT THE "ALLOWANCES TO BE
MADE BY THE COURT" WERE TO BE "WITHIN THE MAXIMUM PRESCRIBED BY THE
COMMISSION."  H. REP. NO. 1283, 74TH CONG., 1ST SESS., P. 3; S. REP.
NO. 1336, 74TH CONG., 1ST SESS., P. 4. 

THAT CONSTRUCTION ALSO SQUARES WITH OTHER PROVISIONS OF SEC. 77. 
THUS SUBSECTION (C)(12) PROVIDES THAT THE JUDGE MAY MAKE AN ALLOWANCE
"WITHIN SUCH MAXIMUM LIMITS AS ARE FIXED BY THE COMMISSION."  IT ALSO
REQUIRES THE COMMISSION TO "FIX THE MAXIMUM ALLOWANCES WHICH MAY BE
ALLOWED BY THE COURT."  THEY INDICATE TO ME THAT IN LINE WITH THE
MINORITY VIEWS IN UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 282
U.S. 311, WHICH SEC. 77 ADOPTED (SEE CONGRESSMAN LAGUARDIA, 76TH CONG.
REC., 72ND CONG., 2D SESS., P. 5358), THE DRAIN ON THE CASH RESOURCES
OF RAILROADS WAS TO BE CONTROLLED BY ENTRUSTING TO THE COMMISSION THE
RESPONSIBILITY FOR DETERMINING THE TOTAL AMOUNT OF CASH WHICH SHOULD BE
EXPENDED FOR FEES AND EXPENSES.  WITHIN THOSE LIMITS THE COURTS COULD
MAKE A FAIR ALLOCATION AMONG THE VARIOUS CLAIMANTS.  BUT BEYOND THOSE
LIMITS THE COURTS COULD NOT GO.  THERE MIGHT OF COURSE BE QUESTIONS OF
LAW AFFECTING THE AGGREGATE MAXIMUM ALLOWANCES MADE BY THE COMMISSION
WHICH THE DISTRICT COURT COULD REVIEW.  THUS IF IN THIS CASE THE
COMMISSION HAD HELD THAT THE SERVICES RENDERED BY RESPONDENT WERE NOT
WITHIN THE SCOPE OF SEC. 77(C)(12), THAT RULING COULD BE REVIEWED AND
THE MATTER WOULD THEN HAVE TO BE REMANDED TO THE COMMISSION FOR A NEW
DETERMINATION.  SEC. 77(E).  BUT APART FROM SUCH INSTANCES, THE
COMMISSION'S FINDING AS TO THE AGGREGATE MAXIMUM ALLOWANCES IS
CONCLUSIVE. 

IT IS OF COURSE THE DUTY OF THE COMMISSION NOT ONLY TO FIX THE
MAXIMUM AMOUNT OF THE AGGREGATE ALLOWANCES FOR FEES AND EXPENSES BUT
ALSO TO DETERMINE IN THE FIRST INSTANCE HOW MUCH EACH CLAIMANT SHOULD
RECEIVE.  THAT IS MADE EVIDENT NOT ONLY BY SUBSECTION (C)(12) BUT ALSO
BY SUBSECTION (D) WHICH REQUIRES THE COMMISSION IN ITS APPROVAL OF A
PLAN TO FIND THAT IT MEETS THE REQUIREMENTS OF SUBSECTIONS (B) AND
(E).  THE LATTER, AS HAS BEEN NOTED, REQUIRES THAT THE AMOUNTS TO BE
PAID BY THE DEBTOR OR THE REORGANIZED COMPANY FOR EXPENSES AND FEES BE
"REASONABLE" AS WELL AS "WITHIN SUCH MAXIMUM LIMITS AS ARE FIXED BY THE
COMMISSION."  SINCE THE MAIN SERVICES RENDERED IN CONNECTION WITH A
PLAN OF REORGANIZATION UNDER SEC. 77 OCCUR BEFORE THE COMMISSION, IT IS
IN A MUCH BETTER POSITION THAN THE DISTRICT COURT TO DETERMINE THE
VALUE, IF ANY, OF THE SERVICES RENDERED BY EACH CLAIMANT.  THAT FACT
GIVES GREAT WEIGHT TO THE FINDINGS MADE BY THE COMMISSION ON EACH
CLAIM.  BUT THE REQUIREMENT IN SUBSECTION (E)(2) THAT THE JUDGE FIND
THAT THE AWARDS ARE "REASONABLE" NEGATIVES THE IDEA THAT THE FINDINGS
OF THE COMMISSION ARE CONCLUSIVE.  HENCE WITHIN THE MAXIMUM LIMITS OF
THE TOTAL ALLOWANCES FOR FEES AND EXPENSES THE JUDGE CAN MAKE
READJUSTMENTS - INCREASING OR DECREASING AMOUNTS AWARDED TO THE VARIOUS
CLAIMANTS OR GRANTING ALLOWANCES WHERE NONE WERE MADE BY THE
COMMISSION.  THE CONTRARY VIEW WAS ADOPTED IN IN RE CHICAGO, M., ST. P.
& P.R. CO., SUPRA, PP. 374-375.  THE COURT FELT THAT SINCE SUBSECTION
(C)(12) SPOKE OF THE "MAXIMUM LIMITS" AND "MAXIMUM ALLOWANCES" FIXED BY
THE COMMISSION, THE FINDINGS OF THE COMMISSION AS TO THE MAXIMUM AMOUNT
WHICH EACH CLAIMANT COULD RECEIVE WERE CONCLUSIVE.  BUT THAT
INTERPRETATION IS DIFFICULT TO RECONCILE WITH THE REQUIREMENT OF
SUBSECTION (E)(2) THAT THE JUDGE MUST FIND THE ALLOWANCES
"REASONABLE."  THE USE OF THE PLURAL IN SUBSECTION (E)(12) ONLY
INDICATES THAT THE MAXIMUM ALLOWANCE FOR FEES AND THE MAXIMUM ALLOWANCE
FOR EXPENSES ARE BOTH TO BE FIXED BY THE COMMISSION. 

MY CONCLUSION THAT THE AGGREGATE MAXIMUM ALLOWANCES FIXED BY THE
COMMISSION ARE NOT REVIEWABLE DOES NOT MAKE SEC. 77(C)(12) AND (E)(2)
UNCONSTITUTIONAL.  IT IS CONGRESS WHICH HAS THE POWER UNDER THE
CONSTITUTION TO ESTABLISH "UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES
THROUGHOUT THE UNITED STATES."  ARTICLE I, SEC. 8, CL. 4.  THE SCOPE OF
THE BANKRUPTCY POWER IS NOT RESTRICTED TO THAT WHICH HAS BEEN
EXERCISED.  CONTINENTAL BANK V. CHICAGO, R.I. & P. RY. CO., 294 U.S.
648, 670-671.  THE FACT THAT CONGRESS HAS CUSTOMARILY ENTRUSTED
ADMINISTRATION OF THE VARIOUS BANKRUPTCY ACTS TO THE COURTS DOES NOT
MEAN THAT IT MUST DO SO.  AS STATED BY JUDGE EVANS IN IN RE CHICAGO,
M., ST. P. & P.R. CO., SUPRA, P. 375, "THE POWER OF CONGRESS TO DEAL
WITH BANKRUPTCY CARRIES WITH IT THE RIGHT TO SELECT THE TRIBUNAL, EVEN
GOING OUTSIDE OF COURTS, TO ADMINISTER DEBTORS' ESTATES."  WHEN IT
COMES TO FEES FOR SERVICES RENDERED OR EXPENSES INCURRED IN CONNECTION
WITH BANKRUPTCY PROCEEDINGS, CONGRESS HAS PLENARY POWER.  IN SEC. 48 OF
THE GENERAL BANKRUPTCY ACT CONGRESS HAS PRESCRIBED THE SCHEDULE OF FEES
FOR RECEIVERS, MARSHALS, AND TRUSTEES.  IT COULD PROVIDE THAT NO FEES
FOR SERVICES RENDERED DURING THE BANKRUPTCY PROCEEDINGS MIGHT BE PAID
FROM THE ESTATE.  THE 1935 AMENDMENTS TO SEC. 77 ORIGINALLY WERE
RECOMMENDED BY THE COMMITTEES ON THAT BASIS.  H. REP. NO. 1283, SUPRA,
P. 3; S. REP. NO. 1336, SUPRA, P. 4.  HAVING THAT POWER CONGRESS COULD
FIX FEES FOR ATTORNEYS AND OTHERS ON A PER DIEM OR OTHER BASIS.  CF.
HINES V. LOWREY, 305 U.S. 85.  IN LIEU OF ANY SUCH RIGID SYSTEM OF
CONTROL IT COULD BRING TO ITS AID THE SERVICES OF THE COMMISSION AND
VEST IN IT COMPLETE AUTHORITY OVER ALL ALLOWANCES.  THAT CLEARLY WOULD
NOT INVOLVE ANY QUESTION OF DELEGATION OF JUDICIAL POWER.  SEE SUNSHINE
COAL CO. V. ADKINS, 310 U.S. 381, 400.  HENCE, WHEN CONGRESS GRANTED
THE COMMISSION EXCLUSIVE AUTHORITY OVER THE MAXIMUM AMOUNT OF
ALLOWANCES, IT DID NOT GIVE SEC. 77 A CONSTITUTIONAL INFIRMITY. 

FN1  THE TESTIMONY OF MR. CRAVEN, THE DRAFTSMAN OF THE BILL, IS
ILLUMINATING: 

"MR. BURGESS.  THAT IS THE PROVISION OF THIS ACT THAT THE MAXIMUM IS
TO BE APPROVED BY THE COMMISSION.  THE OBJECTION THAT I WAS MAKING WAS
DIRECTED TO COMMISSIONER MAHAFFIE'S ADDITION TO THAT.  IT SEEMS TO ME
THAT THE PROVISION FOR THE APPROVAL IS ADEQUATE.  I AM NOT SURE WHETHER
THAT MAXIMUM IS APPEALABLE.  ARE YOU, MR. CRAVEN?  THAT IS, CAN THE
FIXATION OF A MAXIMUM BY THE COMMISSION BE APPEALED UNDER THIS ACT? 

MR. CRAVEN.  I THINK NOT. 

MR. BURGESS.  YOU THINK NOT? 

MR. CRAVEN.  THAT IS MY RECOLLECTION OF IT. 

MR. CELLER.  EVEN IF THE COURT WOULD ACCEPT THE MAXIMUM THERE WOULD
BE NO APPEAL FROM THE COURT'S RULING? 

MR. BURGESS.  I DO NOT KNOW OF ANY APPEAL THAT YOU CAN TAKE FROM THE
COMMISSION'S FIXATION OF A MAXIMUM UNDER THIS ACT. 

MR. CELLER.  THAT DOES NOT SEEM RIGHT. 

MR. BURGESS.  THAT IS AN APPEAL FROM THE COURT'S FIXATION, OF COURSE,
BUT THAT WOULD HAVE TO BE WITHIN THE MAXIMUM, SO I DO NOT KNOW OF ANY
APPEAL. 

MR. MICHENER.  THERE ARE A NUMBER OF POWERS FROM WHICH YOU CANNOT
APPEAL SO FAR AS THE DECISION OF THE COMMISSION IS CONCERNED.  THEY ARE
REALLY GIVEN MORE POWER IN SOME PARTICULARS THAN THE JUDGE. 

MR. CELLER.  THAT LEAVES THE ENTIRE MATTER IN THE HANDS OF THE
INTERSTATE COMMERCE COMMISSION, PRACTICALLY SPEAKING. 

MR. MICHENER.  YES. 

MR. BURGESS.  YES. 

MR. CELLER.  WITH NO RIGHT OF APPEAL AT ALL IF THE MAXIMUM IS
ACCEPTED BY THE COURT? 

MR. BURGESS.  THAT IS MY UNDERSTANDING.  IF MR. CRAVEN HAS A
DIFFERENT VIEW, I SHOULD BE GLAD TO ACCEPT HIS VIEW. 

MR. CRAVEN.  THAT IS MY UNDERSTANDING OF IT." 

HEARINGS ON H.R. 6249, HOUSE COMMITTEE ON THE JUDICIARY, 74TH CONG.,
1ST SESS., SER.  3, P. 86.  AND SEE THE TESTIMONY OF COMMISSIONER
MAHAFFIE AT P. 70, WHICH IS ALSO QUOTED IN IN RE CHICAGO, M., ST. P. &
P.R. CO., SUPRA, P. 374. 

FN2  THE COMMITTEE PRINT OF THE BILL PROVIDED FOR ALLOWANCES OF
EXPENSES AND OF COMPENSATION.  SEE SUBSECTIONS (C)(12) AND (E)(2) OF
H.R. 6249, 74TH CONG., 1ST SESS., HEARINGS ON H.R. 6249, SUPRA, PP. 6,
7.  AS RECOMMENDED BY BOTH THE HOUSE AND SENATE COMMITTEES, ALLOWANCES
FOR EXPENSES BUT NOT FOR COMPENSATION WERE PROVIDED.  THE PROVISION FOR
ALLOWANCES OF FEES WAS LATER RESTORED.  79 CONG. REC., 74TH CONG., 1ST
SESS., P. 13765. 

MR. JUSTICE BLACK JOINS IN THIS OPINION. 
..END :
















O'DONNELL V. GREAT LAKES CO., 318 U.S. 36 


NO. 320.  ARGUED JANUARY 6, 1943.  - DECIDED FEBRUARY 1, 1943.  - 127
F.2D 901, REVERSED. 


1.  A DECKHAND IN THE SERVICE OF A VESSEL PLYING NAVIGABLE WATERS IN
INTERSTATE COMMERCE, WHO WAS ORDERED BY THE MASTER TO GO ASHORE AND
ASSIST IN REPAIRING, AT ITS CONNECTION WITH A LAND PIPE, A CONDUIT
THROUGH WHICH THE VESSEL WAS UNLOADING CARGO, AND WHO WHILE THUS
ENGAGED WAS INJURED BY THE NEGLIGENCE OF A FELLOW SERVANT, HAS A RIGHT
OF RECOVERY UNDER THE JONES ACT, 46 U.S.C. SEC. 688, WHICH GIVES A
RIGHT OF ACTION TO A SEAMAN INJURED "IN THE COURSE OF HIS EMPLOYMENT." 
P. 38. 

2.  THE JONES ACT AS SO APPLIED IS CONSTITUTIONAL, EVEN THOUGH THE
INJURY WAS INFLICTED WHILE THE SEAMAN WAS ON SHORE.  P. 43. 

3.  THE CONSTITUTIONAL AUTHORITY OF CONGRESS TO PROVIDE SUCH A REMEDY
FOR SEAMEN DERIVES FROM ITS AUTHORITY TO REGULATE COMMERCE, AND ITS
POWER TO MAKE LAWS WHICH SHALL BE NECESSARY AND PROPER TO CARRY INTO
EXECUTION POWERS VESTED BY THE CONSTITUTION IN THE GOVERNMENT OR ANY
DEPARTMENT OF IT, INCLUDING THE JUDICIAL POWER WHICH EXTENDS "TO ALL
CASES OF ADMIRALTY AND MARITIME JURISDICTION."  P. 39. 

4.  THERE IS NOTHING IN THE CONSTITUTIONAL GRANT OF ADMIRALTY
JURISDICTION TO PRECLUDE CONGRESS FROM MODIFYING OR SUPPLEMENTING THE
RULES OF THE MARITIME LAW AS EXPERIENCE OR CHANGING CONDITIONS MAY
REQUIRE, AT LEAST WITH RESPECT TO THOSE MATTERS WHICH TRADITIONALLY
HAVE BEEN WITHIN THE COGNIZANCE OF ADMIRALTY COURTS EITHER BECAUSE THEY
ARE EVENTS OCCURRING ON NAVIGABLE WATERS, OR BECAUSE THEY ARE THE
SUBJECT MATTER OF MARITIME CONTRACTS OR RELATE TO MARITIME SERVICES. 
P. 40. 

5.  THE RIGHT OF RECOVERY IN THE JONES ACT IS GIVEN TO THE SEAMAN AS
SUCH, AND, AS IN THE CASE OF MAINTENANCE AND CURE, THE ADMIRALTY
JURISDICTION OVER THE SUIT DEPENDS NOT ON THE PLACE WHERE THE INJURY IS
INFLICTED BUT ON THE NATURE OF THE SERVICE AND ITS RELATIONSHIP TO THE
OPERATION OF THE VESSEL PLYING IN NAVIGABLE WATERS.  P. 42. 

6.  SINCE THE SUBJECT MATTER - THE SEAMAN'S RIGHT TO COMPENSATION FOR
INJURIES RECEIVED IN THE COURSE OF HIS EMPLOYMENT - IS ONE
TRADITIONALLY COGNIZABLE IN ADMIRALTY, THE JONES ACT, BY ENLARGING THE
REMEDY, DID NOT GO BEYOND MODIFICATION OF SUBSTANTIVE RULES OF THE
MARITIME LAW WELL WITHIN THE SCOPE OF THE ADMIRALTY JURISDICTION,
WHETHER THE VESSEL, PLYING NAVIGABLE WATERS, BE ENGAGED IN INTERSTATE
COMMERCE OR NOT.  P. 43. 

7.  THE FACT THAT CONGRESS HAS PROVIDED THAT SUITS UNDER THE JONES
ACT MAY BE TRIED BY JURY, ON THE LAW RATHER THAN ON THE ADMIRALTY SIDE
OF THE FEDERAL COURTS, DOES NOT REQUIRE A CONCLUSION DIFFERENT FROM
THAT HERE REACHED.  P. 43. 

O'DONNELL V. GREAT LAKES DREDGE & DOCK CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 317 U.S. 611, TO REVIEW A JUDGMENT DENYING RECOVERY IN AN
ACTION UNDER THE JONES ACT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER A SEAMAN INJURED ON SHORE WHILE
IN THE SERVICE OF HIS VESSEL IS ENTITLED TO RECOVER FOR HIS INJURIES IN
A SUIT BROUGHT AGAINST HIS EMPLOYER UNDER THE JONES ACT.  SEC. 33,
MERCHANT MARINE ACT OF 1920, 41 STAT. 1007, 46 U.S.C. SEC. 688. 

PETITIONER WAS A DECKHAND ON RESPONDENT'S VESSEL "MICHIGAN," ENGAGED
IN TRANSPORTING SAND FROM INDIANA TO ILLINOIS OVER THE NAVIGABLE WATERS
OF LAKE MICHIGAN.  AS HER CARGO WAS BEING DISCHARGED THROUGH A CONDUIT
PASSING FROM THE HATCH AND CONNECTED AT ITS OUTER END TO A LAND PIPE BY
MEANS OF A GASKET, PETITIONER WAS ORDERED BY THE MASTER TO GO ASHORE TO
ASSIST IN REPAIR OF THE GASKET CONNECTION.  WHILE HE WAS SO ENGAGED THE
ALLEGED NEGLIGENCE OF A FELLOW EMPLOYEE CAUSED A HEAVY COUNTERWEIGHT,
USED TO SUPPORT THE GASKET, TO FALL ON PETITIONER AND CAUSE THE
INJURIES OF WHICH HE COMPLAINS.  THE DISTRICT COURT DISMISSED THE CAUSE
OF ACTION UNDER THE JONES ACT AND GRANTED AN AWARD FOR WAGES.  THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT MODIFIED THE JUDGMENT, 127
F.2D 901, BY ALLOWING AN ADDITIONAL AWARD FOR MAINTENANCE AND CURE, BUT
HELD THAT NO RECOVERY COULD BE HAD UNDER THE JONES ACT FOR INJURY TO A
SEAMAN NOT OCCURRING ON NAVIGABLE WATERS.  WE GRANTED CERTIORARI, 317
U.S. 611, THE QUESTION BEING ONE OF IMPORTANCE IN THE APPLICATION OF
THE JONES ACT. 

THE JONES ACT, SO FAR AS PRESENTLY RELEVANT, PROVIDES: 

"ANY SEAMAN WHO SHALL SUFFER PERSONAL INJURY IN THE COURSE OF HIS
EMPLOYMENT MAY, AT HIS ELECTION, MAINTAIN AN ACTION FOR DAMAGES AT LAW,
WITH THE RIGHT OF TRIAL BY JURY, AND IN SUCH ACTION ALL STATUTES OF THE
UNITED STATES MODIFYING OR EXTENDING THE COMMON-LAW RIGHT OR REMEDY IN
CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES SHALL APPLY  ...  " 

THE ACT THUS MADE APPLICABLE TO SEAMEN INJURED IN THE COURSE OF THEIR
EMPLOYMENT THE PROVISIONS OF THE FEDERAL EMPLOYERS LIABILITY ACT, 45
U.S.C. SECS. 51-60, WHICH GIVES TO RAILROAD EMPLOYEES A RIGHT OF
RECOVERY FOR INJURIES RESULTING FROM THE NEGLIGENCE OF THEIR EMPLOYER,
ITS AGENTS OR EMPLOYEES.  PANAMA R. CO. V. JOHNSON, 264 U.S. 375; THE
ARIZONA V. ANELICH, 298 U.S. 110.  THE TERM "SEAMEN" HAS BEEN
INTERPRETED TO EMBRACE THOSE EMPLOYED ON A VESSEL IN RENDERING THE
SERVICES CUSTOMARILY PERFORMED BY SEAMEN, INCLUDING STEVEDORES WHILE
TEMPORARILY ENGAGED IN STOWING CARGO ON THE VESSEL.  INTERNATIONAL
STEVEDORING CO. V. HAVERTY, 272 U.S. 50; BUZYNSKI V. LUCKENBACH S.S.
CO., 277 U.S. 226.  THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE
JONES ACT TO INDICATE THAT ITS WORDS "IN THE COURSE OF HIS EMPLOYMENT"
DO NOT MEAN WHAT THEY SAY OR THAT THEY WERE INTENDED TO BE RESTRICTED
TO INJURIES OCCURRING ON NAVIGABLE WATERS.  ON THE CONTRARY IT SEEMS
PLAIN THAT IN TAKING OVER THE PRINCIPLES OF RECOVERY ALREADY
ESTABLISHED FOR RAILROAD EMPLOYEES AND EXTENDING THEM IN THE NEW
ADMIRALTY SETTING (SEE THE ARIZONA V. ANELICH, SUPRA) TO ANY SEAMAN
INJURED "IN THE COURSE OF HIS EMPLOYMENT," CONGRESS, IN THE ABSENCE OF
ANY INDICATION OF A DIFFERENT PURPOSE, MUST BE TAKEN TO HAVE INTENDED
TO MAKE THEM APPLICABLE SO FAR AS THE WORDS AND THE CONSTITUTION
PERMIT, AND TO HAVE GIVEN TO THEM THE FULL SUPPORT OF ALL THE
CONSTITUTIONAL POWER IT POSSESSED.  HENCE THE ACT ALLOWS THE RECOVERY
SOUGHT UNLESS THE CONSTITUTION FORBIDS IT. 

THE CONSTITUTIONAL AUTHORITY OF CONGRESS TO PROVIDE SUCH A REMEDY FOR
SEAMEN DERIVES FROM ITS AUTHORITY TO REGULATE COMMERCE, SECOND
EMPLOYERS' LIABILITY CASES, 223 U.S. 1, AND ITS POWER TO MAKE LAWS
WHICH SHALL BE NECESSARY AND PROPER TO CARRY INTO EXECUTION POWERS
VESTED BY THE CONSTITUTION IN THE GOVERNMENT OR ANY DEPARTMENT OF IT,
ARTICLE I, SEC. 8, CL. 18, INCLUDING THE JUDICIAL POWER WHICH, BY
ARTICLE III, SEC. 2, EXTENDS "TO ALL CASES OF ADMIRALTY AND MARITIME
JURISDICTION."  BY SEC. 9 OF THE JUDICIARY ACT OF 1789, 1 STAT. 76, 28
U.S.C. SEC. 371(THIRD), CONGRESS CONFERRED ON THE DISTRICT COURTS
"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
...  "  BY THE GRANT OF ADMIRALTY AND MARITIME JURISDICTION IN THE
JUDICIARY ARTICLE, AND SEC. 9 OF THE JUDICIARY ACT, THE NATIONAL
GOVERNMENT TOOK OVER THE TRADITIONAL BODY OF RULES, PRECEPTS AND
PRACTICES KNOWN TO LAWYERS AND LEGISLATORS AS THE MARITIME LAW, SO FAR
AS THE COURTS INVESTED WITH ADMIRALTY JURISDICTION SHOULD ACCEPT AND
APPLY THEM.  WARING V. CLARKE, 5 HOW.  441, 459; THE LOTTAWANNA, 21
WALL.  558, 576; IN RE GARNETT, 141 U.S. 1, 14; DETROIT TRUST CO. V.
THE BARLUM, 293 U.S. 21, 43, AND CASES CITED. 

IT IS TRUE THAT THE JURISDICTION IN ADMIRALTY IN CASES OF TORT OR
COLLISION IS IN GENERAL LIMITED TO EVENTS OCCURRING ON NAVIGABLE
WATERS, WARING V. CLARKE, SUPRA; CF. THE BLACKHEATH, 195 U.S. 361, AND
THAT THE MARITIME LAW GAVE TO SEAMEN NO RIGHT TO RECOVER COMPENSATORY
DAMAGES FOR INJURIES SUFFERED FROM NEGLIGENCE.  THE OSCEOLA, 189 U.S.
158, 172, 175; PACIFIC S.S. CO. V. PETERSON, 278 U.S. 130, 134.  IT
ALLOWED SUCH RECOVERY IF THE INJURY RESULTED FROM UNSEAWORTHINESS OF
THE VESSEL OR HER TACKLE, THE OSCEOLA, SUPRA, 173, 175, AND PERMITTED
RECOVERY OF MAINTENANCE AND CURE, ORDINARILY MEASURED BY WAGES AND THE
COST OF REASONABLE MEDICAL CARE, IF THE SEAMAN WAS INJURED OR DISABLED
IN THE COURSE OF HIS EMPLOYMENT.  THE OSCEOLA, SUPRA, 172-75; THE
IROQUOIS, 194 U.S. 240; CALMAR S.S. CORP. V. TAYLOR, 303 U.S. 525, 527
28. 

BUT IT CANNOT BE SUPPOSED THAT THE FRAMERS OF THE CONSTITUTION
CONTEMPLATED THAT THE MARITIME LAW SHOULD FOREVER REMAIN UNALTERED BY
LEGISLATION, THE LOTTAWANNA, SUPRA, 577, OR THAT CONGRESS COULD NEVER
CHANGE THE STATUS UNDER THE MARITIME LAW OF SEAMEN, WHO ARE PECULIARLY
THE WARDS OF ADMIRALTY, OR WAS POWERLESS TO ENLARGE OR MODIFY ANY
REMEDY AFFORDED TO THEM WITHIN THE SCOPE OF THE ADMIRALTY
JURISDICTION.  THERE IS NOTHING IN THAT GRANT OF JURISDICTION - WHICH
SANCTIONED OUR ADOPTION OF THE SYSTEM OF MARITIME LAW - TO PRECLUDE
CONGRESS FROM MODIFYING OR SUPPLEMENTING THE RULES OF THAT LAW AS
EXPERIENCE OR CHANGING CONDITIONS MAY REQUIRE.  THIS IS SO AT LEAST
WITH RESPECT TO THOSE MATTERS WHICH TRADITIONALLY HAVE BEEN WITHIN THE
COGNIZANCE OF ADMIRALTY COURTS EITHER BECAUSE THEY ARE EVENTS OCCURRING
ON NAVIGABLE WATERS, SEE WARING V. CLARKE, SUPRA, OR BECAUSE THEY ARE
THE SUBJECT MATTER OF MARITIME CONTRACTS OR RELATE TO MARITIME
SERVICES.  INSURANCE COMPANY V. DUNHAM, 11 WALL.  1, 25. 

FROM THE BEGINNING THIS COURT HAS SUSTAINED LEGISLATIVE CHANGES OF
THE MARITIME LAW WITHIN THOSE LIMITS.  SEE WARING V. CLARKE, SUPRA; THE
LOTTAWANNA, SUPRA; BUTLER V. BOSTON & SAVANNAH S.S. CO., 130 U.S. 527,
555.  CONGRESS HAS BOTH LIMITED THE LIABILITY OF VESSELS FOR THEIR
TORTS EVEN THOUGH NOT ENGAGED IN INTERSTATE COMMERCE, IN RE GARNETT,
SUPRA; HARTFORD ACCIDENT & INDEMNITY CO. V. SOUTHERN PACIFIC CO., 273
U.S. 207, 214, AND EXTENDED THE LIMITATION TO CLAIMS FOR DAMAGES BY
VESSEL TO A LAND STRUCTURE.  COMPARE THE PLYMOUTH, 3 WALL.  20, AND
CLEVELAND TERMINAL & V.R. CO. V. CLEVELAND S.S. CO., 208 U.S. 316, WITH
RICHARDSON V. HARMON, 222 U.S. 96, 101, 106.  IT HAS ALTERED AND
EXTENDED THE MARITIME LAW OF LIENS ON VESSELS PLYING NAVIGABLE WATERS. 
DETROIT TRUST CO. V. THE BARLUM, SUPRA, AND CASES CITED.  AND THE JONES
ACT ITSELF HAS GIVEN SEAMEN A RIGHT OF RECOVERY FOR INJURY OR DEATH,
NOT PREVIOUSLY RECOGNIZED BY THE MARITIME LAW, WHICH HAS BEEN UNIFORMLY
SUSTAINED BY THIS COURT IN CASES WHERE THE INJURY OCCURRED ON NAVIGABLE
WATERS.  PANAMA R. CO. V. JOHNSON, SUPRA, 385-87; THE ARIZONA V.
ANELICH, SUPRA; LINDGREN V. UNITED STATES, 281 U.S. 38. 

AS WE HAVE SAID, THE MARITIME LAW, AS RECOGNIZED IN THE FEDERAL
COURTS, HAS NOT IN GENERAL ALLOWED RECOVERY FOR PERSONAL INJURIES
OCCURRING ON LAND.  BUT THERE IS AN IMPORTANT EXCEPTION TO THIS
GENERALIZATION IN THE CASE OF MAINTENANCE AND CURE.  FROM ITS DAWN, THE
MARITIME LAW HAS RECOGNIZED THE SEAMAN'S RIGHT TO MAINTENANCE AND CURE
FOR INJURIES SUFFERED IN THE COURSE OF HIS SERVICE TO HIS VESSEL,
WHETHER OCCURRING ON SEA OR ON LAND.  IT IS SO STATED IN ARTICLE VI OF
THE LAWS OF OLERON, TWELFTH CENTURY, 30 FED. CAS. 1174, AND IN ARTICLE
XVIII OF THE LAWS OF WISBUY, THIRTEENTH CENTURY, ID. P. 1191.  AND SEE
ARTICLE XXXIX OF THE LAWS OF THE HANSE TOWNS, ID. P. 1200; ARTICLES XI
AND XII OF TITLE FOURTH, MARINE ORDINANCES OF LOUIS XIV, ID. P. 1209. 
SUCH IS THE ACCEPTED RULE IN THIS COURT, SEE THE OSCEOLA, SUPRA, 169,
175; CALMAR S.S. CORP. V. TAYLOR, SUPRA, 527-28, AND IT IS CONFIRMED BY
ARTICLE 2 OF THE SHIPOWNERS' LIABILITY CONVENTION OF 1936, 54 STAT.
1695, PROCLAIMED BY THE PRESIDENT TO BE EFFECTIVE AS TO THE UNITED
STATES AND ITS CITIZENS AS OF OCTOBER 29, 1939.  ARTICLE 12 OF THE
CONVENTION PROVIDES THAT IT SHALL NOT AFFECT ANY NATIONAL LAW ENSURING
"MORE FAVOURABLE CONDITIONS THAN THOSE PROVIDED BY THIS CONVENTION." 
54 STAT. 1700. 

SOME OF THE GROUNDS FOR RECOVERY OF MAINTENANCE AND CURE WOULD, IN
MODERN TERMINOLOGY, BE CLASSIFIED AS TORTS.  BUT THE SEAMAN'S RIGHT WAS
FIRMLY ESTABLISHED IN THE MARITIME LAW LONG BEFORE RECOGNITION OF THE
DISTINCTION BETWEEN TORT AND CONTRACT.  IN ITS ORIGIN, MAINTENANCE AND
CURE MUST BE TAKEN AS AN INCIDENT TO THE STATUS OF THE SEAMAN IN THE
EMPLOYMENT OF HIS SHIP.  SEE CORTES V. BALTIMORE INSULAR LINE, 287 U.S.
367, 372.  THAT STATUS HAS FROM THE BEGINNING BEEN PECULIARLY WITHIN
THE PROVINCE OF THE MARITIME LAW, SEE CALMAR S.S. CORP. V. TAYLOR,
SUPRA, AND UPON PRINCIPLES CONSISTENTLY FOLLOWED BY THIS COURT IT IS
SUBJECT TO THE POWER OF CONGRESS TO MODIFY THE CONDITIONS AND EXTENT OF
THE REMEDY AFFORDED BY THE MARITIME LAW TO SEAMEN INJURED WHILE ENGAGED
IN A MARITIME SERVICE. 

THE RIGHT OF RECOVERY IN THE JONES ACT IS GIVEN TO THE SEAMAN AS
SUCH, AND, AS IN THE CASE OF MAINTENANCE AND CURE, THE ADMIRALTY
JURISDICTION OVER THE SUIT DEPENDS NOT ON THE PLACE WHERE THE INJURY IS
INFLICTED BUT ON THE NATURE OF THE SERVICE AND ITS RELATIONSHIP TO THE
OPERATION OF THE VESSEL PLYING IN NAVIGABLE WATERS.  SEE WARING V.
CLARKE, SUPRA; INSURANCE CO. V. DUNHAM, SUPRA. 

IT FOLLOWS THAT THE JONES ACT, IN EXTENDING A RIGHT OF RECOVERY TO
THE SEAMAN INJURED WHILE IN THE SERVICE OF HIS VESSEL BY NEGLIGENCE,
HAS DONE NO MORE THAN SUPPLEMENT THE REMEDY OF MAINTENANCE AND CURE FOR
INJURIES SUFFERED BY THE SEAMAN, WHETHER ON LAND OR SEA, BY GIVING TO
HIM THE INDEMNITY WHICH THE MARITIME LAW AFFORDED TO A SEAMAN INJURED
IN CONSEQUENCE OF THE UNSEAWORTHINESS OF THE VESSEL OR ITS TACKLE. 
PACIFIC S.S. CO. V. PETERSON, SUPRA.  SINCE THE SUBJECT MATTER, THE
SEAMAN'S RIGHT TO COMPENSATION FOR INJURIES RECEIVED IN THE COURSE OF
HIS EMPLOYMENT, IS ONE TRADITIONALLY COGNIZABLE IN ADMIRALTY, THE JONES
ACT, BY ENLARGING THE REMEDY, DID NOT GO BEYOND MODIFICATION OF
SUBSTANTIVE RULES OF THE MARITIME LAW WELL WITHIN THE SCOPE OF THE
ADMIRALTY JURISDICTION WHETHER THE VESSEL, PLYING NAVIGABLE WATERS, BE
ENGAGED IN INTERSTATE COMMERCE OR NOT.  CF. JACKSON V. THE MAGNOLIA, 20
HOW.  296; THE BELFAST, 7 WALL.  624, 640, ET SEQ; IN RE GARNETT,
SUPRA. 

THE FACT THAT CONGRESS HAS PROVIDED THAT SUITS UNDER THE JONES ACT
MAY BE TRIED BY JURY, ON THE LAW RATHER THAN ON THE ADMIRALTY SIDE OF
THE FEDERAL COURTS, DOES NOT MILITATE AGAINST THE CONCLUSION WE HAVE
REACHED.  THIS IS BUT A PART OF THE GENERAL POWER OF CONGRESS TO
PRESCRIBE THE FORUM IN WHICH FEDERALLY-CREATED CAUSES OF ACTION ARE TO
BE TRIED, CLAFLIN V. HOUSEMAN, 93 U.S. 130, 136-42,  - A CONCOMITANT OF
THE POWER MANY TIMES SUSTAINED BY THIS COURT TO DIRECT THAT CAUSES OF
ACTION ARISING UNDER THE JONES ACT MAY BE TRIED IN THE STATE COURTS. 
E.G., ENGEL V. DAVENPORT, 271 U.S. 33, 37-38; PANAMA R. CO. V. VASQUEZ,
271 U.S. 557; CF. GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239. 

WE HAVE NO OCCASION TO CONSIDER OR DECIDE HERE THE QUESTION WHETHER A
LONGSHOREMAN, TEMPORARILY EMPLOYED IN STORING CARGO ON A VESSEL, IF
ENTITLED TO RECOVER UNDER THE JONES ACT FOR INJURIES SUSTAINED WHILE
WORKING ON THE VESSEL (COMPARE INTERNATIONAL STEVEDORING CO. V.
HAVERTY, SUPRA, WITH NOGUEIRA V. N.Y., N.H. & H.R. CO., 281 U.S. 128,
137), COULD RECOVER FOR AN INJURY RECEIVED ON SHORE IN THE
CIRCUMSTANCES OF THIS CASE.  COMPARE STATE INDUSTRIAL COMMISSION V.
NORDENHOLT CORP., 259 U.S. 263, WITH SOUTH CHICAGO CO. V. BASSETT, 309
U.S. 251, 256.  REVERSED. 
..END :











TILESTON V. ULLMAN, 318 U.S. 44 


NO. 420.  ARGUED JANUARY 13, 14, 1943.  - DECIDED FEBRUARY 1, 1943.  -
APPEAL DISMISSED. 


A PHYSICIAN IS WITHOUT STANDING TO CHALLENGE, AS A DEPRIVATION OF LIFE
WITHOUT DUE PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT, A STATE
STATUTE PROHIBITING THE USE OF DRUGS OR INSTRUMENTS TO PREVENT
CONCEPTION, AND THE GIVING OF ASSISTANCE OR COUNSEL IN THEIR USE, WHERE
THE LIVES ALLEGED TO BE ENDANGERED ARE THOSE OF PATIENTS WHO ARE NOT
PARTIES TO THE SUIT.  P. 46. 

TILESTON V. ULLMAN, STATE'S ATTORNEY, ET AL. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

APPEAL FROM A JUDGMENT, 129 CONN. 84, 26 A.2D 582, HOLDING A STATE
STATUTE APPLICABLE TO APPELLANT AND SUSTAINING ITS CONSTITUTIONALITY. 

PER CURIAM. 

THIS CASE COMES HERE ON APPEAL TO REVIEW A DECLARATORY JUDGMENT OF
THE SUPREME COURT OF ERRORS OF CONNECTICUT THAT SECS. 6246 AND 6562 OF
THE GENERAL STATUTES OF CONNECTICUT OF 1930 - PROHIBITING THE USE OF
DRUGS OR INSTRUMENTS TO PREVENT CONCEPTION, AND THE GIVING OF
ASSISTANCE OR COUNSEL IN THEIR USE - ARE APPLICABLE TO APPELLANT, A
REGISTERED PHYSICIAN, AND AS APPLIED TO HIM ARE CONSTITUTIONAL.  129
CONN. 84, 26 A.2D 582, 588. 

THE SUIT WAS TRIED AND JUDGMENT RENDERED ON THE ALLEGATIONS OF THE
COMPLAINT WHICH ARE STIPULATED TO BE TRUE.  APPELLANT ALLEGED THAT THE
STATUTE, IF APPLICABLE TO HIM, WOULD PREVENT HIS GIVING PROFESSIONAL
ADVICE CONCERNING THE USE OF CONTRACEPTIVES TO THREE PATIENTS WHOSE
CONDITION OF HEALTH WAS SUCH THAT THEIR LIVES WOULD BE ENDANGERED BY
CHILD-BEARING, AND THAT APPELLEES, LAW ENFORCEMENT OFFICERS OF THE
STATE, INTEND TO PROSECUTE ANY OFFENSE AGAINST THE STATUTE AND "CLAIM
OR MAY CLAIM" THAT THE PROPOSED PROFESSIONAL ADVICE WOULD CONSTITUTE
SUCH AN OFFENSE.  THE COMPLAINT SET OUT IN DETAIL THE DANGER TO THE
LIVES OF APPELLANT'S PATIENTS IN THE EVENT THAT THEY SHOULD BEAR
CHILDREN, BUT CONTAINED NO ALLEGATIONS ASSERTING ANY CLAIM UNDER THE
FOURTEENTH AMENDMENT OF INFRINGEMENT OF APPELLANT'S LIBERTY OR HIS
PROPERTY RIGHTS.  THE RELIEF PRAYED WAS A DECLARATORY JUDGMENT AS TO
WHETHER THE STATUTES ARE APPLICABLE TO APPELLANT AND IF SO WHETHER THEY
CONSTITUTE A VALID EXERCISE OF CONSTITUTIONAL POWER "WITHIN THE MEANING
AND INTENT OF AMENDMENT XIV OF THE CONSTITUTION OF THE UNITED STATES
PROHIBITING A STATE FROM DEPRIVING ANY PERSON OF LIFE WITHOUT DUE
PROCESS OF LAW."  ON STIPULATION OF THE PARTIES THE STATE SUPERIOR
COURT ORDERED THESE QUESTIONS OF LAW RESERVED FOR THE CONSIDERATION AND
ADVICE OF THE SUPREME COURT OF ERRORS.  THAT COURT, WHICH ASSUMED
WITHOUT DECIDING THAT THE CASE WAS AN APPROPRIATE ONE FOR A DECLARATORY
JUDGMENT, RULED THAT THE STATUTES "PROHIBIT THE ACTION PROPOSED TO BE
DONE" BY APPELLANT AND "ARE CONSTITUTIONAL." 

WE ARE OF THE OPINION THAT THE PROCEEDINGS IN THE STATE COURTS
PRESENT NO CONSTITUTIONAL QUESTION WHICH APPELLANT HAS STANDING TO
ASSERT.  THE SOLE CONSTITUTIONAL ATTACK UPON THE STATUTES UNDER THE
FOURTEENTH AMENDMENT IS CONFINED TO THEIR DEPRIVATION OF LIFE -
OBVIOUSLY NOT APPELLANT'S BUT HIS PATIENTS'.  THERE IS NO ALLEGATION OR
PROOF THAT APPELLANT'S LIFE IS IN DANGER.  HIS PATIENTS ARE NOT PARTIES
TO THIS PROCEEDING AND THERE IS NO BASIS ON WHICH WE CAN SAY THAT HE
HAS STANDING TO SECURE AN ADJUDICATION OF HIS PATIENTS' CONSTITUTIONAL
RIGHT TO LIFE, WHICH THEY DO NOT ASSERT IN THEIR OWN BEHALF.  CRONIN V.
ADAMS, 192 U.S. 108, 114; STANDARD STOCK FOOD CO. V. WRIGHT, 225 U.S.
540, 550; BOSLEY V. MCLAUGHLIN, 236 U.S. 385, 395; BLAIR V. UNITED
STATES, 250 U.S. 273; THE WINNEBAGO, 205 U.S. 354, 360; DAVIS & FARNUM
MFG. CO. V. LOS ANGELES, 189 U.S. 207, 220.  NO QUESTION IS RAISED IN
THE RECORD WITH RESPECT TO THE DEPRIVATION OF APPELLANT'S LIBERTY OR
PROPERTY IN CONTRAVENTION OF THE FOURTEENTH AMENDMENT, NOR IS THERE
ANYTHING IN THE OPINION OR JUDGMENT OF THE SUPREME COURT OF ERRORS
WHICH INDICATES OR WOULD SUPPORT A DECISION OF ANY QUESTION OTHER THAN
THOSE RAISED IN THE SUPERIOR COURT AND RESERVED BY IT FOR DECISION OF
THE SUPREME COURT OF ERRORS.  THAT COURT'S PRACTICE IS TO DECLINE TO
ANSWER QUESTIONS NOT RESERVED.  GENERAL STATUTES SEC. 5652; LOOMIS
INSTITUTE V. HEALY, 98 CONN. 102, 129, 119 A. 31; JOHN J. MCCARTHY CO.
V. ALSOP, 122 CONN. 288, 298-99, 189 A. 464. 

SINCE THE APPEAL MUST BE DISMISSED ON THE GROUND THAT APPELLANT HAS
NO STANDING TO LITIGATE THE CONSTITUTIONAL QUESTION WHICH THE RECORD
PRESENTS, IT IS UNNECESSARY TO CONSIDER WHETHER THE RECORD SHOWS THE
EXISTENCE OF A GENUINE CASE OR CONTROVERSY ESSENTIAL TO THE EXERCISE OF
THE JURISDICTION OF THIS COURT.  CF. NASHVILLE, C. & ST. L. RY. CO. V.
WALLACE, 288 U.S. 249, 259.  DISMISSED. 
..END :













MANDEVILLE V. CANTERBURY, 318 U.S. 47 


NO. 422.  ARGUED JANUARY 13, 1943.  - DECIDED FEBRUARY 1, 1943.  - 130
F.2D 208, REVERSED. 


A FEDERAL DISTRICT COURT HAVING JURISDICTION, BY DIVERSITY OF
CITIZENSHIP, OF A SUIT WHEREIN THE COMPLAINANT, CLAIMING AN INTEREST IN
A TRUST ESTATE CREATED UNDER A WILL, SEEKS TO HAVE THE WILL CONSTRUED
AND PRAYS A DECREE DETERMINING THE COMPLAINANT'S RIGHTS IN THE TRUST
PROPERTY AND DIRECTING THE TRUSTEES TO ACCOUNT AND TO TURN OVER TO THE
COMPLAINANT HER SHARE IN THE TRUST PROPERTY, IS PRECLUDED BY SEC. 265
OF THE JUDICIAL CODE FROM ENJOINING SUBSEQUENT PROCEEDINGS IN STATE
COURTS OF OTHER STATES, WHEREIN ARE SOUGHT ADJUDICATIONS OF THE RIGHTS
OF THE PARTIES IN LAND BELONGING TO THE TRUST AND LOCATED IN SUCH OTHER
STATES.  P. 49. 

MANDEVILLE, TRUSTEE, ET AL. V. CANTERBURY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 317 U.S. 616, TO REVIEW THE AFFIRMANCE OF A FEDERAL COURT
INJUNCTION STAYING PROCEEDINGS IN STATE COURTS. 

PER CURIAM. 

RESPONDENT, SAID TO BE A CITIZEN OF CALIFORNIA WHO CLAIMS AN INTEREST
IN A TRUST ESTATE CREATED UNDER A WILL PROBATED IN ILLINOIS, BROUGHT
THIS SUIT IN THE DISTRICT COURT FOR NORTHERN ILLINOIS FOR CONSTRUCTION
OF THE WILL, JOINING AS DEFENDANTS THE TRUSTEES AND OTHER INTERESTED
PARTIES, ALL ALLEGED TO BE CITIZENS OF ILLINOIS.  THE RELIEF PRAYED IS
THAT THE COURT, AFTER CONSTRUING THE WILL, RENDER A DECREE DETERMINING
RESPONDENT'S RIGHTS IN THE TRUST PROPERTY AND DIRECTING THE TRUSTEE TO
ACCOUNT AND TO TURN OVER TO RESPONDENT HER SHARE IN THE TRUST
PROPERTY.  INCLUDED IN THE TRUST PROPERTY ARE TRACTS OF LAND LOCATED IN
MINNESOTA, WISCONSIN AND ILLINOIS. 

AFTER RESPONDENT BEGAN THE PRESENT SUIT, PETITIONERS BROUGHT SUIT IN
A MINNESOTA STATE COURT AGAINST RESPONDENT AND UNKNOWN HEIRS, DEVISEES
AND LEGATEES OF DECEDENT AND UNKNOWN BENEFICIARIES UNDER THE WILL,
SEEKING A CONSTRUCTION OF SO MUCH OF THE WILL AS RELATES TO THE
MINNESOTA LAND, AND AN ADJUDICATION OF THEIR RIGHTS IN THE LAND. 
SHORTLY AFTERWARDS PETITIONERS ALSO BROUGHT SUIT IN A WISCONSIN STATE
COURT AGAINST THE SAME DEFENDANTS, SEEKING LIKE RELIEF WITH RESPECT TO
THE WISCONSIN LAND.  ON MOTION OF RESPONDENT THE DISTRICT COURT GRANTED
A TEMPORARY INJUNCTION RESTRAINING THE PROSECUTION OF THE PENDING SUITS
IN MINNESOTA AND WISCONSIN.  IT ALSO ENJOINED FURTHER PROSECUTION OF A
PROBATE PROCEEDING BROUGHT BY PETITIONER RICHARD CANTERBURY MANDEVILLE
IN THE COUNTY COURT OF ROCK COUNTY, WISCONSIN, WHICH SOUGHT A
CONSTRUCTION OF THE WILL AND A DETERMINATION OF THE RIGHTS OF THE
PARTIES UNDER IT, BUT WITH THE PROVISO THAT THE INJUNCTION SHOULD NOT
RESTRAIN THE PROBATE OF THE WILL OR A DETERMINATION OF INHERITANCE
TAXES DUE TO THE STATE.  ON APPEAL FROM THE INJUNCTION ORDER THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED, 130 F.2D 208, AND WE
GRANTED CERTIORARI.  317 U.S. 616. 

EXCEPT AS AUTHORIZED BY ANY LAW RELATING TO PROCEEDINGS IN BANKRUPTCY
"THE WRIT OF INJUNCTION SHALL NOT BE GRANTED BY ANY COURT OF THE UNITED
STATES TO STAY PROCEEDINGS IN ANY COURT OF A STATE."  TO THIS SWEEPING
COMMAND THERE IS A LONG RECOGNIZED EXCEPTION THAT IF TWO SUITS PENDING,
ONE IN A STATE AND THE OTHER IN A FEDERAL COURT, ARE IN REM OR QUASI IN
REM, SO THAT THE COURT OR ITS OFFICER MUST HAVE POSSESSION OR CONTROL
OF THE PROPERTY WHICH IS THE SUBJECT MATTER OF THE SUITS IN ORDER TO
PROCEED WITH THE CAUSE AND TO GRANT THE RELIEF SOUGHT, THE COURT FIRST
ACQUIRING JURISDICTION OR ASSUMING CONTROL OF SUCH PROPERTY IS ENTITLED
TO MAINTAIN AND EXERCISE ITS JURISDICTION TO THE EXCLUSION OF THE
OTHER. 

IN SUCH CASES THIS COURT HAS UNIFORMLY HELD THAT A FEDERAL COURT MAY
PROTECT ITS JURISDICTION THUS ACQUIRED BY RESTRAINING THE PARTIES FROM
PROSECUTING A LIKE SUIT IN A STATE COURT NOTWITHSTANDING THE
PROHIBITION OF SEC. 265.  THIS EXCEPTION TO THE PROHIBITION HAS BEEN
REGARDED AS ONE OF NECESSITY TO PREVENT UNSEEMLY CONFLICTS BETWEEN THE
FEDERAL AND STATE COURTS AND TO PREVENT THE IMPASSE WHICH WOULD ARISE
IF THE FEDERAL COURT WERE UNABLE TO MAINTAIN ITS POSSESSION AND CONTROL
OF THE PROPERTY, WHICH ARE INDISPENSABLE TO THE EXERCISE OF THE
JURISDICTION IT HAS ASSUMED.  BUT WHERE THE JUDGMENT SOUGHT IS STRICTLY
IN PERSONAM FOR THE RECOVERY OF MONEY OR FOR AN INJUNCTION COMPELLING
OR RESTRAINING ACTION BY THE DEFENDANT, BOTH A STATE COURT AND A
FEDERAL COURT HAVING CONCURRENT JURISDICTION MAY PROCEED WITH THE
LITIGATION AT LEAST UNTIL JUDGMENT IS OBTAINED IN ONE COURT, WHICH MAY
BE SET UP AS RES JUDICATA IN THE OTHER.  THESE PRINCIPLES WERE
RECOGNIZED AND THE AUTHORITIES SUSTAINING THEM COLLECTED IN PENN
GENERAL CASUALTY CO. V. PENNSYLVANIA, 294 U.S. 189, AND TOUCEY V. NEW
YORK LIFE INS. CO., 314 U.S. 118, 134-36. 

THE PRESENT SUIT, SO FAR AS IT RELATES TO THE SUBJECT MATTER OF THE
SUITS PENDING IN MINNESOTA AND WISCONSIN, IS A SUIT IN PERSONAM BROUGHT
AGAINST THE TRUSTEES AND OTHER CLAIMANTS, ACTUAL OR POTENTIAL, TO THE
LAND LOCATED IN THOSE STATES.  MAINTENANCE OF THE SUIT IN THE DISTRICT
COURT DOES NOT REQUIRE POSSESSION OF THE PROPERTY BY THAT COURT OR
REQUIRE IT TO ASSUME SUPERVISORY OR ADMINISTRATIVE CONTROL OF IT EVEN
THROUGH EXERCISE OF ITS CONTROL OVER THE TRUSTEES, AT LEAST UNTIL IT
HAS DETERMINED THAT RESPONDENT HAS SOME INTEREST IN THE PROPERTY, NOR
HAS THE COURT UNDERTAKEN TO EXERCISE SUCH CONTROL.  WHILE JURISDICTION
ASSUMED BY A STATE COURT OVER A PENDING PROCEEDING FOR AN ACCOUNTING BY
TESTAMENTARY TRUSTEES, INVOLVING PROBLEMS OF ADMINISTRATION AND
RESTORATION OF THE CORPUS OF THE TRUST, HAS BEEN DEEMED EXCLUSIVE OF
THE JURISDICTION OF A FEDERAL COURT OVER A LATER SUIT THERE FOR THE
SAME RELIEF, PRINCESS LIDA V. THOMPSON, 305 U.S. 456, 466-67, HERE THE
FEDERAL COURT HAS NOT ATTEMPTED TO ASSUME SUCH JURISDICTION WITH
RESPECT TO AN ASSERTED BUT CONTESTED INTEREST IN LAND LOCATED IN
ANOTHER STATE.  SO FAR AS THE SUITS IN EITHER THE FEDERAL OR THE STATE
COURTS SEEK AN ADJUDICATION OF THE INTERESTS OF THE PARTIES IN THE
LAND, IT CANNOT BE SAID THAT THE FEDERAL COURT HAS EXCLUSIVE
JURISDICTION.  COMMONWEALTH TRUST CO. V. BRADFORD, 297 U.S. 613.  IN
ANY CASE, EXERCISE BY THE STATE COURTS OF THEIR JURISDICTION TO
ADJUDICATE THE PARTIES' RIGHTS TO LAND LOCATED IN THOSE STATES INVOLVES
NO INTERFERENCE WITH OR IMPAIRMENT OF THE JURISDICTION OF THE FEDERAL
COURT IN ILLINOIS, AND AFFORDS NO GROUND FOR THE INJUNCTION RESTRAINING
PROSECUTIONS OF THE SUITS IN THE STATE COURTS.  COMMONWEALTH TRUST CO.
V. BRADFORD, SUPRA.  THE CASE DOES NOT COME WITHIN ANY EXCEPTION TO THE
PROHIBITION OF SEC. 265 OF THE JUDICIAL CODE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS WILL BE REVERSED WITH
DIRECTIONS TO THE DISTRICT COURT TO VACATE THE INJUNCTION ORDER. 
REVERSED. 
..END :






















IN RE BRADLEY, 318 U.S. 50 


NO. 473.  ARGUED JANUARY 8, 1943.  - DECIDED FEBRUARY 1, 1943.  -
REVERSED. 


A FEDERAL COURT HAVING ERRONEOUSLY IMPOSED UPON THE PETITIONER A
SENTENCE OF FINE AND IMPRISONMENT FOR CONTEMPT (JUD.  CODE SEC. 268, 28
U.S.C. SEC. 385), AND THE FINE HAVING BEEN PAID TO THE CLERK OF THE
COURT, WHO GAVE A RECEIPT THEREFOR, THE COURT IS WITHOUT POWER
THEREAFTER - ALTHOUGH THE MONEY HAD NOT BEEN COVERED INTO THE TREASURY
TO MODIFY THE SENTENCE TO ONE OF IMPRISONMENT ONLY, AND THE PETITIONER
MUST BE DISCHARGED.  P. 52. 

IN RE WILLIAM V. BRADLEY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 317 U.S. 616, TO REVIEW A JUDGMENT SENTENCING THE
PETITIONER FOR CONTEMPT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

A PROCEEDING, INSTITUTED BY THE NATIONAL LABOR RELATIONS BOARD
AGAINST DELAWARE-NEW JERSEY FERRY COMPANY FOR ENFORCEMENT OF AN ORDER
OF THE BOARD, WAS PENDING IN THE CIRCUIT COURT OF APPEALS.  A HEARING
WAS SET AT WHICH WITNESSES WERE TO BE HEARD.  THE PETITIONER WAS TO BE
A WITNESS FOR THE BOARD.  DURING THE COURSE OF THE TRIAL THE PETITIONER
WAS SUMMONED AND, AFTER HEARING, WAS ADJUDGED GUILTY OF CONTEMPT
BECAUSE OF HIS INTIMIDATION OF A WITNESS FOR THE FERRY COMPANY IN THE
CORRIDOR ADJOINING THE COURT ROOM. 

THE COURT SENTENCED THE PETITIONER TO SIX MONTHS' IMPRISONMENT, TO
PAY A FINE OF $500, AND TO STAND COMMITTED UNTIL HE COMPLIED WITH THE
SENTENCE.  THE SENTENCE WAS ERRONEOUS.  EX PARTE LANGE, 18 WALL.  163,
176.  UNDER SEC. 268 OF THE JUDICIAL CODE, 28 U.S.C. 385, THE SENTENCE
COULD ONLY BE A FINE OR IMPRISONMENT.  EX PARTE ROBINSON, 19 WALL. 
505, 512; CLARK V. UNITED STATES, 61 F.2D 695, 709; AFFIRMED 289 U.S.
1. 

THE MARSHAL WAS DIRECTED FORTHWITH TO EXECUTE THE JUDGMENT.  ON
SEPTEMBER 28, 1942, THE PETITIONER WAS TAKEN INTO CUSTODY AND COMMITTED
TO PRISON.  ON OCTOBER 1 HIS ATTORNEY PAID THE FINE IN CASH TO THE
CLERK OF THE COURT.  LATER ON THAT DAY THE COURT, REALIZING THAT THE
SENTENCE WAS ERRONEOUS, DELIVERED TO THE CLERK AN ORDER AMENDING IT BY
OMITTING ANY FINE AND RETAINING ONLY THE SIX MONTHS' IMPRISONMENT.  THE
COURT INSTRUCTED THE CLERK, WHO STILL HELD THE MONEY, TO RETURN IT TO
THE PETITIONER'S ATTORNEY.  THE LATTER REFUSED TO RECEIVE IT, AND THE
CLERK HAS IT. 

THE PETITIONER, BEING IN JAIL, PETITIONED THIS COURT TO GRANT
CERTIORARI, ALLEGING AS ERRORS THE ADJUDICATION THAT HE WAS GUILTY OF
CONTEMPT AND THE MANNER OF SENTENCING HIM.  WE GRANTED THE WRIT AND
ADMITTED HIM TO BAIL PENDING DECISION. 

WE DO NOT REVIEW THE FINDING THAT THE PETITIONER'S CONDUCT WAS A
CONTEMPT SUMMARILY PUNISHABLE BY THE COURT, FOR WE ARE OF OPINION THAT
THE ERRORS INVOLVED IN THE SENTENCE REQUIRE THAT HE SHALL BE FREED FROM
FURTHER IMPRISONMENT. 

WHEN, ON OCTOBER 1, THE FINE WAS PAID TO THE CLERK AND RECEIPTED FOR
BY HIM, THE PETITIONER HAD COMPLIED WITH A PORTION OF THE SENTENCE
WHICH COULD LAWFULLY HAVE BEEN IMPOSED.  AS THE JUDGMENT OF THE COURT
WAS THUS EXECUTED SO AS TO BE A FULL SATISFACTION OF ONE OF THE
ALTERNATIVE PENALTIES OF THE LAW, THE POWER OF THE COURT WAS AT AN
END.  FN1  IT IS UNIMPORTANT THAT THE FINE HAD NOT BEEN COVERED INTO
THE TREASURY; IT HAD BEEN PAID TO THE CLERK, THE OFFICER OF THE UNITED
STATES AUTHORIZED TO RECEIVE IT,  FN2  AND PETITIONER'S RIGHTS DID NOT
DEPEND UPON WHAT THAT OFFICER SUBSEQUENTLY DID WITH THE MONEY.  FN3 

IT FOLLOWS THAT THE SUBSEQUENT AMENDMENT OF THE SENTENCE COULD NOT
AVOID THE SATISFACTION OF THE JUDGMENT, AND THE ATTEMPT TO ACCOMPLISH
THAT END WAS A NULLITY.  SINCE ONE VALID ALTERNATIVE PROVISION OF THE
ORIGINAL SENTENCE HAS BEEN SATISFIED, THE PETITIONER IS ENTITLED TO BE
FREED OF FURTHER RESTRAINT. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED WITH DIRECTIONS THAT
THE PETITIONER BE DISCHARGED FROM CUSTODY.  REVERSED. 

FN1  EX PARTE LANGE, SUPRA, 176. 

FN2  IN RE FLETCHER, 71 APP. D.C. 108, 107 F.2D 666, 668. 

FN3  EX PARTE LANGE, SUPRA, P. 176; AND COMPARE THE DISSENTING
OPINION, PP. 180, 190, 199-200; YAVORSKY V. UNITED STATES, 1 F.2D 169,
171; MOSS V. UNITED STATES, 23 APP. D.C. 475, 485. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

IN EX PARTE LANGE, 18 WALL.  163, THE TRIAL COURT DID NOT REMIT OR
OFFER TO REMIT THE FINE WHICH THE OFFENDER HAD PAID.  THE OPINION WAS
CAREFUL TO POINT OUT (P. 175) THAT THE FINE PAID HAD BEEN COVERED INTO
THE TREASURY AND THAT THE COURTS WERE POWERLESS TO DIRECT ITS RETURN. 
THAT DECISION THUS LENDS NO SUPPORT TO THAT NOW RENDERED THAT THE
CHOICE RESTS WITH THE OFFENDER RATHER THAN WITH THE COURT WHETHER HE
SHALL BE PUNISHED BY FINE OR BY IMPRISONMENT, EITHER OF WHICH ALONE THE
COURT COULD HAVE LAWFULLY IMPOSED; AND THAT BY PAYMENT OF THE FINE,
IMPOSED AND ACCEPTED UNDER MISTAKE OF LAW AND IMMEDIATELY REMITTED, HE
MAY IRREVOCABLY ESCAPE PUNISHMENT BY IMPRISONMENT. 

SO FAR AS EX PARTE LANGE IS REGARDED HERE AS RESTING ON THE GROUND
THAT IT WOULD BE DOUBLE JEOPARDY TO COMPEL THE OFFENDER TO SERVE THE
PRISON SENTENCE AFTER REMISSION OF THE FINE ON THE SAME DAY ON WHICH IT
WAS PAID, I THINK ITS AUTHORITY SHOULD BE REEXAMINED AND REJECTED.  THE
SUBSTANCE OF THE PUNISHMENT IMPOSED ON THE OFFENDER BY A FINE IS IN
DEPRIVING HIM OF THE MONEY HE HAS PAID.  HERE HE HAS NOT BEEN DEPRIVED
OF THE MONEY PAID TO THE CLERK OF THE COURT, FOR THE FINE WAS REMITTED
ON THE SAME DAY ON WHICH IT WAS PAID, AND HE WAS THEN FREE TO RECLAIM
IT.  SINCE HE IS SHOWN TO HAVE SUFFERED NO MORE FROM THE IMPOSITION OF
THE FINE THAN IF THE CLERK HAD REFUSED TO RECEIVE IT WHEN TENDERED,
THERE IS I THINK NO SUBSTANCE IN THE CONTENTION THAT HE WILL SUFFER
DOUBLE PUNISHMENT IF COMPELLED TO SERVE OUT HIS PRISON SENTENCE. 

THE CONSTITUTION IS CONCERNED WITH MATTERS OF SUBSTANCE NOT OF FORM. 
NOTHING IN ITS WORDS OR HISTORY FORBIDS A COMMON SENSE APPLICATION OF
ITS PROVISIONS, OR EXCLUDES THEM FROM THE OPERATION OF THE PRINCIPLE DE
MINIMIS.  I CAN HARDLY SUPPOSE THAT WE WOULD HOLD UNCONSTITUTIONAL AN
ACT OF CONGRESS COMMANDING PROMPT RETURN OF A FINE MISTAKENLY IMPOSED
UNDER THESE CIRCUMSTANCES, AND REQUIRING THE PRISON SENTENCE ORIGINALLY
IMPOSED TO BE SERVED.  YET EX PARTE LANGE AS INTERPRETED AND APPLIED
HERE RESTS ON CONSTITUTIONAL GROUNDS WHICH ARE EQUALLY APPLICABLE TO AN
ACT OF CONGRESS. 

I AGREE WITH THE SUGGESTION OF THE GOVERNMENT THAT THE COURT'S SECOND
ORDER RESENTENCING PETITIONER COULD NOT RIGHTLY BE ENTERED WITHOUT
AFFORDING PETITIONER OR HIS COUNSEL AN OPPORTUNITY TO BE PRESENT, AND
THAT THE CAUSE SHOULD, ON THAT ACCOUNT, BE REMANDED FOR FURTHER
PROCEEDINGS. 
..END :












TILLER V. ATLANTIC COAST LINE R. CO., 318 U.S. 54 


NO. 296.  ARGUED JANUARY 4, 1943.  - DECIDED FEBRUARY 1, 1943.  - 128
F.2D 420, REVERSED. 


1.  THE 1939 AMENDMENT OF THE FEDERAL EMPLOYERS' LIABILITY ACT, WHICH
PROVIDES THAT IN AN ACTION AGAINST A COMMON CARRIER UNDER THE ACT TO
RECOVER DAMAGES FOR INJURY OR DEATH OF AN EMPLOYEE, "SUCH EMPLOYEE
SHALL NOT BE HELD TO HAVE ASSUMED THE RISKS OF HIS EMPLOYMENT IN ANY
CASE WHERE SUCH INJURY OR DEATH RESULTED IN WHOLE OR IN PART FROM THE
NEGLIGENCE OF ANY OF THE OFFICERS, AGENTS, OR EMPLOYEES OF SUCH
CARRIER," OBLITERATED FROM THAT LAW EVERY VESTIGE OF THE DOCTRINE OF
ASSUMPTION OF RISK.  P. 58. 

2.  THE RULE OF DECISION IN CASES UNDER THE ACT AS AMENDED IS THE
DOCTRINE OF COMPARATIVE NEGLIGENCE, WHICH PERMITS THE JURY TO WEIGH THE
FAULT OF THE INJURED EMPLOYEE AND TO COMPARE IT WITH THE NEGLIGENCE OF
THE EMPLOYER, AND THEREUPON TO DO JUSTICE TO BOTH.  P. 65. 

3.  THE QUESTION OF THE NEGLIGENCE OF THE EMPLOYER IS TO BE
DETERMINED BY THE GENERAL RULE WHICH DEFINES NEGLIGENCE AS THE LACK OF
DUE CARE UNDER THE CIRCUMSTANCES; OR THE FAILURE TO DO WHAT A
REASONABLE AND PRUDENT MAN WOULD ORDINARILY HAVE DONE UNDER THE
CIRCUMSTANCES; OR DOING WHAT SUCH A PERSON UNDER THE CIRCUMSTANCES
WOULD NOT HAVE DONE.  THE STANDARD OF CARE MUST BE COMMENSURATE TO THE
DANGERS OF THE EMPLOYMENT.  P. 67. 

4.  UNDER THE ACT AS AMENDED, NO CASE IS TO BE WITHHELD FROM A JURY
ON ANY THEORY OF ASSUMPTION OF RISK, AND QUESTIONS OF NEGLIGENCE SHOULD
BE SUBMITTED TO THE JURY WITH APPROPRIATE INSTRUCTIONS.  P. 67. 

5.  UPON THE EVIDENCE IN THIS CASE UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT, THE QUESTION OF NEGLIGENCE ON THE PART OF THE RAILROAD
AND ON THE PART OF THE EMPLOYEE SHOULD HAVE BEEN SUBMITTED TO THE
JURY.  P. 68. 

TILLER, EXECUTOR, V. ATLANTIC COAST LINE RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 317 U.S. 610, TO REVIEW THE AFFIRMANCE OF A JUDGMENT ON A
DIRECTED VERDICT FOR THE DEFENDANT IN A SUIT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER'S HUSBAND AND INTESTATE, JOHN LEWIS TILLER, WAS A
POLICEMAN FOR THE RESPONDENT RAILROAD.  AMONG HIS DUTIES WAS THAT OF
INSPECTING THE SEALS ON CARS IN RAILROAD YARDS TO MAKE SURE THAT NO ONE
HAD TAMPERED WITH THEM.  HE HAD HELD THIS POSITION FOR SOME YEARS, WAS
FAMILIAR WITH THE YARD, AND WAS AWARE, IN THE WORDS OF THE COURT BELOW,
THAT RESPONDENT'S EMPLOYEES "ARE INSTRUCTED THAT THEY MUST WATCH OUT
FOR THE MOVEMENT OF THE TRAINS AS NO EMPLOYEE WATCHES OUT FOR THEM AND
NO LIGHTS ARE USED AT NIGHT ON THE HEAD END OF BACK-UP MOVEMENTS EXCEPT
WHEN AN EMPLOYEE IS PLACED AT THE BACK END WITH A LANTERN TO PROTECT A
ROAD CROSSING."  THE CIRCUIT COURT OF APPEALS FOUND THAT THERE WAS
EVIDENCE SUFFICIENT TO SUSTAIN THE FOLLOWING ACCOUNT OF THE TRAGEDY: 

ON THE NIGHT OF MARCH 20, 1940, TILLER WAS STANDING BETWEEN TWO
TRACKS IN THE RESPONDENT'S SWITCH YARDS, TRACKS WHICH ALLOWED HIM THREE
FEET, SEVEN AND ONE-HALF INCHES OF STANDING SPACE WHEN TRAINS WERE
MOVING ON BOTH SIDES.  THE NIGHT WAS DARK  FN1  AND THE YARD WAS
UNLIGHTED.  TILLER, USING A FLASHLIGHT FOR THE PURPOSE, WAS INSPECTING
THE SEALS OF THE TRAIN MOVING SLOWLY ON ONE TRACK WHEN SUDDENLY HE WAS
HIT AND KILLED BY THE REAR CAR OF A TRAIN BACKING IN THE OPPOSITE
DIRECTION ON THE OTHER TRACK.  THE REAR OF THE TRAIN WHICH KILLED
TILLER WAS UNLIGHTED ALTHOUGH A BRAKEMAN WITH A LANTERN WAS RIDING ON
THE BACK STEP ON THE SIDE AWAY FROM TILLER.  THE BELL WAS RINGING ON
THE ENGINE BUT BOTH TRAINS WERE MOVING, AND THE CIRCUIT COURT FOUND
THAT IT WAS "PROBABLE THAT TILLER DID NOT HEAR CARS APPROACHING" FROM
BEHIND HIM.  NO SPECIAL SIGNAL OF WARNING WAS GIVEN. 

PETITIONER BROUGHT THIS SUIT TO RECOVER DAMAGES UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT, 45 U.S.C. SEC. 51 ET SEQ. THE COMPLAINT
ALLEGED NEGLIGENT OPERATION OF THE CAR WHICH STRUCK DEFENDANT AND
FAILURE TO PROVIDE A REASONABLY SAFE PLACE TO WORK.  RESPONDENT DENIED
NEGLIGENCE, PLEADED CONTRIBUTORY NEGLIGENCE ON THE PART OF THE
DEFENDANT, AND SET UP AS A SEPARATE DEFENSE THAT THE DECEASED HAD
ASSUMED ALL THE RISKS "NORMALLY AND NECESSARILY INCIDENT TO HIS
EMPLOYMENT."  AFTER THE PLAINTIFF'S EVIDENCE HAD BEEN HEARD THE
DEFENDANT MOVED FOR A DIRECTED VERDICT ON THE GROUNDS (A) THAT THE
EVIDENCE DISCLOSED NO ACTIONABLE NEGLIGENCE AND (B) THAT THE CAUSE OF
THE DEATH WAS SPECULATIVE AND CONJECTURAL.  THE MOTION WAS GRANTED,
JUDGMENT WAS ACCORDINGLY ENTERED FOR THE DEFENDANT AND THE CIRCUIT
COURT OF APPEALS, INTERPRETING THE DECISION OF THE DISTRICT COURT AS
RESTING ON A CONCLUSION THAT THE EVIDENCE SHOWED NO NEGLIGENCE,
AFFIRMED.  128 F.2D 420.  THIS RESULT WAS BASED ON A HOLDING THAT THE
DECEASED HAD ASSUMED THE RISK OF HIS POSITION AND THAT THEREFORE THERE
WAS NO DUTY OWING TO HIM BY RESPONDENT.  WE GRANTED CERTIORARI BECAUSE
OF THE IMPORTANT QUESTION INVOLVED IN THE CIRCUIT COURT OF APPEALS'
INTERPRETATION OF THE SCOPE AND EFFECT OF THE 1939 AMENDMENT TO THE
FEDERAL EMPLOYERS' LIABILITY ACT, 53 STAT. 1404, 45 U.S.C. 54.  THE
AMENDMENT PROVIDES THAT AN "EMPLOYEE SHALL NOT BE HELD TO HAVE ASSUMED
THE RISKS OF HIS EMPLOYMENT IN ANY CASE WHERE SUCH INJURY OR DEATH
RESULTED IN WHOLE OR IN PART FROM THE NEGLIGENCE OF ANY OF THE
OFFICERS, AGENTS, OR EMPLOYEES OF SUCH CARRIER." 

THE CIRCUIT COURT DISTINGUISHED BETWEEN ASSUMPTION OF RISK AS A
DEFENSE BY EMPLOYERS AGAINST THE CONSEQUENCE OF THEIR OWN NEGLIGENCE,
AND ASSUMPTION OF RISK AS NEGATING ANY CONCLUSION THAT NEGLIGENCE
EXISTED AT ALL.  THE COURT REASONED THAT IF, FOR EXAMPLE, THE
RESPONDENT HAD NEGLIGENTLY FAILED TO PROVIDE A WORKMAN WITH A SOUND
TOOL, AND HE WAS THEREBY INJURED, IT COULD NOT UNDER THE AMENDMENT
CLAIM THAT HE HAD ASSUMED THE RISK OF USING THE DEFECTIVE IMPLEMENT;
BUT THAT IF A WORKMAN WERE INJURED IN THE ORDINARY COURSE OF HIS WORK,
AS IN SUCH A SWITCHING OPERATION AS THIS, THE ASSUMPTION OF RISK MIGHT
STILL BE RELIED UPON TO PROVE THAT THE RESPONDENT HAD NO DUTY TO
PROTECT HIM FROM ACCUSTOMED DANGER.  THE COURT REJECTED PETITIONER'S
ARGUMENT THAT SINCE THE DOCTRINE OF ASSUMPTION OF RISK HAD BEEN
ABOLISHED "THE CARRIER CAN NO LONGER INTERPOSE IT AS A SHIELD AGAINST
THE CONSEQUENCES OF ITS NEGLECT AND HENCE IS LIABLE FOR INJURIES TO ITS
EMPLOYEES IN ITS RAILROAD YARDS OR ELSEWHERE, UNLESS IT TAKES
PRECAUTIONS FOR THEIR SAFETY COMMENSURATE WITH THE DANGER THAT THEY ARE
LIKELY TO ENCOUNTER."  IN REJECTING THIS ARGUMENT THE COURT BELOW PUT
THE CORE OF ITS DECISION IN THESE WORDS:  "THE CONCLUSION IS
INESCAPABLE THAT CONGRESS DID NOT INTEND TO ENLARGE THE OBLIGATION OF
CARRIERS TO LOOK OUT FOR THE SAFETY OF THEIR MEN WHEN EXPOSED TO THE
ORDINARY RISKS OF THE BUSINESS, AND THAT IN CIRCUMSTANCES OTHER THAN
THOSE PROVIDED FOR IN THE AMENDED SECTION OF THE STATUTE, THE DOCTRINE
OF THE ASSUMPTION OF THE RISK MUST BE GIVEN ITS ACCUSTOMED WEIGHT." 

WE FIND IT UNNECESSARY TO CONSIDER WHETHER THERE IS ANY MERIT IN SUCH
A CONCEPTUAL DISTINCTION BETWEEN ASPECTS OF ASSUMPTION OF RISK WHICH
SEEM FUNCTIONALLY SO IDENTICAL, AND HENCE WE NEED NOT PAUSE OVER THE
CASES CITED BY THE COURT BELOW, ALL DECIDED BEFORE THE 1939 AMENDMENT,
WHICH TREAT ASSUMPTION OF RISK SOMETIMES AS A DEFENSE TO NEGLIGENCE,
SOMETIMES AS THE EQUIVALENT OF NON-NEGLIGENCE.  FN2  WE HOLD THAT EVERY
VESTIGE OF THE DOCTRINE OF ASSUMPTION OF RISK WAS OBLITERATED FROM THE
LAW BY THE 1939 AMENDMENT, AND THAT CONGRESS, BY ABOLISHING THE DEFENSE
OF ASSUMPTION OF RISK IN THAT STATUTE, DID NOT MEAN TO LEAVE OPEN THE
IDENTICAL DEFENSE FOR THE MASTER BY CHANGING ITS NAME TO "NON
NEGLIGENCE."  AS THIS COURT SAID IN FACING THE HAZY MARGIN BETWEEN
NEGLIGENCE AND ASSUMPTION OF RISK AS INVOLVED IN THE SAFETY APPLIANCE
ACT OF 1893, "UNLESS GREAT CARE BE TAKEN, THE SERVANT'S RIGHTS WILL BE
SACRIFICED BY SIMPLY CHARGING HIM WITH ASSUMPTION OF THE RISK UNDER
ANOTHER NAME;"  FN3  AND NO SUCH RESULT CAN BE PERMITTED HERE. 

PERHAPS THE NATURE OF THE PRESENT PROBLEM CAN BEST BE SEEN AGAINST
THE BACKGROUND OF ONE HUNDRED YEARS OF MASTER-SERVANT TORT DOCTRINE. 
ASSUMPTION OF RISK IS A JUDICIALLY CREATED RULE WHICH WAS DEVELOPED IN
RESPONSE TO THE GENERAL IMPULSE OF COMMON LAW COURTS AT THE BEGINNING
OF THIS PERIOD TO INSULATE THE EMPLOYER AS MUCH AS POSSIBLE FROM
BEARING THE "HUMAN OVERHEAD" WHICH IS AN INEVITABLE PART OF THE COST -
TO SOMEONE - OF THE DOING OF INDUSTRIALIZED BUSINESS.  FN4  THE GENERAL
PURPOSE BEHIND THIS DEVELOPMENT IN THE COMMON LAW SEEMS TO HAVE BEEN TO
GIVE MAXIMUM FREEDOM TO EXPANDING INDUSTRY.  FN5  THE ASSUMPTION OF
RISK DOCTRINE FOR EXAMPLE WAS ATTRIBUTED BY THIS COURT TO "A RULE OF
PUBLIC POLICY, INASMUCH AS AN OPPOSITE DOCTRINE WOULD NOT ONLY SUBJECT
EMPLOYERS TO UNREASONABLE AND OFTEN RUINOUS RESPONSIBILITIES, THEREBY
EMBARRASSING ALL BRANCHES OF BUSINESS," BUT WOULD ALSO ENCOURAGE
CARELESSNESS ON THE PART OF THE EMPLOYEE.  FN6  IN THE PURSUIT OF ITS
GENERAL OBJECTIVE THE COMMON LAW TOOK MANY FORMS AND DEVELOPED MANY
DOCTRINES.  ONE OF THE FIRST WAS THE FELLOW SERVANT-ASSUMPTION OF RISK
RULE WHICH ORIGINATED IN PRIESTLEY V. FOWLER.  FN7 IN PRIESTLEY V.
FOWLER, THE COURT SAID, "THE SERVANT IS NOT BOUND TO RISK HIS SAFETY IN
THE SERVICE OF HIS MASTER, AND MAY, IF HE THINKS FIT, DECLINE ANY
SERVICE IN WHICH HE REASONABLY APPREHENDS INJURY TO HIMSELF:  AND IN
MOST OF THE CASES IN WHICH DANGER MAY BE INCURRED, IF NOT IN ALL, HE IS
JUST AS LIKELY TO BE ACQUAINTED WITH THE PROBABILITY AND EXTENT OF IT
AS THE MASTER." 

AS ENGLISH COURTS LIVED WITH THE ASSUMPTION OF RISK DOCTRINE THEY
DISCOVERED THAT THE THEORY THEY HAD CREATED HAD BECOME MORALLY
UNACCEPTABLE BUT OF SUCH LEGAL FORCE THAT IT COULD NOT BE REPUDIATED. 
FN8  THE ENGLISH SOUGHT TO ELIMINATE THE FELLOW SERVANT RULE, WHICH
PLACED THE BURDEN OF AN EMPLOYEE'S NEGLIGENCE AS IT AFFECTED ANOTHER
EMPLOYEE ON THE INJURED PERSON RATHER THAN ON THE BUSINESS ENTERPRISE,
BY THE EMPLOYERS' LIABILITY ACT OF 1880  FN9  AND FOUND THAT THE
ASSUMPTION OF RISK DOCTRINE STILL LEFT THE EMPLOYEE IN A HOPELESSLY
UNPROTECTED POSITION.  IN THE LEADING CASE OF THOMAS V. QUARTERMAINE,
18 Q.B.D. 685(1887), THE COURT HELD THAT AN EMPLOYEE STANDING ON A
THREE FOOT RUNWAY BETWEEN TWO UNFENCED VATS WHO WAS ATTEMPTING TO
DISLODGE A PIECE OF WOOD FROM ONE OF THE VATS AND WHO BY ACCIDENT FELL
INTO THE OTHER AND WAS SCALDED WAS BARRED FROM RECOVERY.  SINCE HE HAD
LONG KNOWN OF THE POSSIBLE DANGERS OF THE NARROW PASSAGE HE WAS HELD TO
HAVE ASSUMED THE RISK OF HIS POSITION.  IN 1897 THE ENGLISH FINALLY
ABANDONED THE COMMON LAW REMEDY ALTOGETHER AS A PROTECTION FOR INJURED
EMPLOYEES AND ADOPTED A WORKMEN'S COMPENSATION LAW.  60 & 61 VICT.  C.
37. 

THIS COURT ACCEPTED THE ASSUMPTION OF RISK DOCTRINE AS APPLIED TO
RAILROAD EMPLOYEES, AT LEAST IN PART, IN 1879.  FN10  THAT DECISION
PLACED THE EMPLOYEE'S ASSUMPTION OF RISK UPON THE THEORY THAT AN
AGREEMENT TO ASSUME THE RISK WAS IMPLIED FROM THE TERMS OF THE
EMPLOYMENT CONTRACT. 

PRIOR TO THE PASSAGE OF THE FEDERAL EMPLOYERS' LIABILITY ACT OF 1906
THE ASSUMPTION OF RISK DOCTRINE, EXCEPT FOR A CONSIDERABLE VAGUENESS AS
TO ITS RELATION WITH CONTRIBUTORY NEGLIGENCE, WAS FAIRLY WELL KNOWN. 
FN11  IT HAD ALREADY BEEN APPLIED GENERALLY AT THE TIME OF THE ADOPTION
OF THE ACT BECAUSE OF ACCEPTANCE OF THE THEORY THAT THE EMPLOYEE'S
COMPENSATION WAS BASED UPON THE ADDED RISK TO HIS POSITION AND THAT HE
COULD QUIT WHEN HE PLEASED.  TUTTLE V. DETROIT, G.H. & M. RY., SUPRA;
AND COMPARE FOR A RESTATEMENT OF THIS VIEW AFTER THE PASSAGE OF THE
EMPLOYERS' LIABILITY ACT, SEABOARD AIR LINE V. HORTON, 233 U.S. 492,
504.  FN12  FEDERAL AND STATE COURTS, WITH SOME NOTABLE EXCEPTIONS,
ACCEPTED AND APPLIED THE RULE WITH ALL OF ITS IMPLICATIONS AND
CONSEQUENCES EXCEPT WHEN EXPRESSLY PROHIBITED FROM DOING SO BY
STATUTE.  FN13 

CONGRESS TOOK A MAJOR STEP TOWARD MODIFICATION OF THE COMMON LAW
BARRIER AGAINST EMPLOYEE RECOVERY IN ACCIDENT SUITS IN THE FEDERAL
EMPLOYERS' LIABILITY ACT OF 1906, 34 STAT. 232, REPASSED WITH
ALTERATIONS NOT MATERIAL IN 1908, 35 STAT. 65.  THIS ACT, IN ITS
PRINCIPAL FEATURES, ABOLISHED THE FELLOW SERVANT RULE, SUBSTITUTED
COMPARATIVE NEGLIGENCE FOR THE STRICT RULE OF CONTRIBUTORY NEGLIGENCE,
AND ALLOWED SURVIVORS' ACTIONS FOR TORT LIABILITY.  SECTION 4 OF THAT
ACT, AS INTERPRETED BY THIS COURT IN SEABOARD AIR LINE V. HORTON,
SUPRA, PERPETUATED THE DEFENSE OF ASSUMPTION OF RISK.  FN14
UNFORTUNATELY, FROM THE STANDPOINT OF LEGAL CLARITY, THE ACT AS
INTERPRETED REQUIRED CAREFUL DISTINCTION BETWEEN ASSUMPTION OF RISK AND
CONTRIBUTORY NEGLIGENCE, SINCE ASSUMPTION OF RISK WAS AN ABSOLUTE BAR
TO RECOVERY WHILE CONTRIBUTORY NEGLIGENCE MERELY REDUCED THE AMOUNT OF
RECOVERY.  THE GREAT UNCERTAINTY EXISTING PRIOR TO THE ACT AS TO WHAT
THE MARGIN BETWEEN THESE DOCTRINES WAS  FN15  THUS BECAME OF REAL
SIGNIFICANCE.  THE LANGUAGE OF THE STATUTE ITSELF SEEMED TO IMPEL THE
COURTS TO PRACTICE "THE NICETIES, IF NOT CASUISTRIES, OF DISTINGUISHING
BETWEEN ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE, CONCEPTIONS
WHICH NEVER ORIGINATED IN CLEARLY DISTINGUISHABLE CATEGORIES, BUT WERE
LOOSELY INTERCHANGEABLE UNTIL THE STATUTE ATTACHED SUCH VITAL
DIFFERENCES TO THEM."  PACHECO V. N.Y., N.H. & H.R. CO., 15 F.2D 467. 
FOR AN ATTEMPT TO DISTINGUISH BETWEEN THE DOCTRINES, SEE SCHLEMMER V.
BUFFALO, R. & P. RY. CO., SUPRA, 12, AND THE SAME CASE AT 220 U.S. 590,
596. 

THE ASSUMPTION OF RISK CLAUSE IN THE STATUTE BECAME THE SUBJECT OF
ENDLESS LITIGATION.  THE FEDERAL CODE ANNOTATED AND THE U.S.C.
ANNOTATED DEVOTE OVER THIRTY PAGES EACH OF FINE TYPE MERELY TO THE
CITATION AND BRIEF SUMMARY OF THE REPORTED DECISIONS; AND THE NUMBER OF
UNREPORTED AND SETTLED CASES IN WHICH THE DEFENSE WAS INVOLVED MUST RUN
INTO THE THOUSANDS.  FN16 ASIDE FROM THE DIFFICULTY OF DISTINGUISHING
BETWEEN CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK MANY OTHER
PROBLEMS AROSE.  ONE OF THESE WAS THE APPLICATION OF THE "PRIMARY DUTY
RULE" IN WHICH CONTRIBUTORY NEGLIGENCE THROUGH VIOLATION OF A COMPANY
RULE BECAME ASSUMPTION OF RISK.  UNADILLA VALLEY RY. CO. V. CALDINE,
278 U.S. 139; DAVIS V. KENNEDY, 266 U.S. 147.  OTHER COMPLICATIONS
AROSE FROM THE INTRODUCTION OF "PROMISE TO REPAIR," "SIMPLE TOOL," AND
"PEREMPTORY ORDER" CONCEPTS INTO THE ASSUMPTION DOCTRINE.  FN17  IN THE
DISPOSITION OF CASES THE QUESTION OF A PLAINTIFF'S ASSUMPTION OF RISK
HAS FREQUENTLY BEEN TREATED SIMPLY AS ANOTHER WAY OF APPRAISING
DEFENDANT'S NEGLIGENCE,  FN18  AS WAS DONE BY THE COURT BELOW IN THE
INSTANT CASE. 

IT WAS THIS MAZE OF LAW WHICH CONGRESS SWEPT INTO DISCARD WITH THE
ADOPTION OF THE 1939 AMENDMENT TO THE EMPLOYERS' LIABILITY ACT,
RELEASING THE EMPLOYEE FROM THE BURDEN OF ASSUMPTION OF RISK BY
WHATEVER NAME IT WAS CALLED.  THE RESULT IS AN ACT WHICH REQUIRES CASES
TRIED UNDER THE FEDERAL ACT TO BE HANDLED AS THOUGH NO DOCTRINE OF
ASSUMPTION OF RISK HAD EVER EXISTED.    IF THIS WERE NOT SUFFICIENTLY
CLEAR FROM THE LANGUAGE OF THE AMENDMENT, ANY DOUBT WOULD BE DISSIPATED
BY ITS LEGISLATIVE HISTORY.  THE 1939 BILL  FN19  WAS INTRODUCED BY
SENATOR NEELY AND WAS SUPPORTED AT THE HEARINGS BY THE RAILWAY LABOR
UNIONS.  IT WAS ACCEPTED BOTH BY THE UNIONS AND THE RAILROADS THAT THE
BILL WOULD UTTERLY AND COMPLETELY ABOLISH THE DEFENSE OF ASSUMPTION OF
RISK.  FN20  THE REPORT OF THE SENATE JUDICIARY COMMITTEE STRUCK AT THE
BASIC REASONS ADVANCED BY COMMON LAW COURTS FOR THE EXISTENCE OF THE
DOCTRINE, DECLARED IT UNSUITED TO PRESENT DAY ACTIVITIES, AND DESCRIBED
THEM AS OUT OF HARMONY WITH THE EQUITABLE PRINCIPLES WHICH SHOULD
GOVERN DETERMINATIONS OF EMPLOYER-EMPLOYEE RESPONSIBILITIES.  FN21  THE
BILL, AS DESCRIBED IN THE REPORT, WAS CLEARLY AIMED AT MAKING THE
PRINCIPLES OF COMPARATIVE NEGLIGENCE THE GUIDING RULES OF DECISION IN
ACCIDENT CASES:  "THE ADOPTION OF THIS PROPOSED AMENDMENT WILL, IN
CASES IN WHICH NO RECOVERY IS NOW ALLOWED, ESTABLISH THE PRINCIPLE OF
COMPARATIVE NEGLIGENCE, WHICH PERMITS THE JURY TO WEIGH THE FAULT OF
THE INJURED EMPLOYEE AND COMPARE IT WITH THE NEGLIGENCE OF THE
EMPLOYER, AND, IN THE LIGHT OF THE COMPARISON, DO JUSTICE TO ALL
CONCERNED."  FN22 

THE PURPOSE OF THE ACT IS MADE CLEARER UPON ANALYSIS OF THE HOUSE
BILL WHICH WAS REJECTED BY THE CONFERENCE COMMITTEE IN FAVOR OF THE
SENATE BILL WHICH IS NOW THE LAW.  THE HOUSE BILL  FN23  WAS INTENDED
TO PRESERVE SOME PART OF THE DOCTRINE OF ASSUMPTION OF RISK, PRESERVING
THAT DEFENSE EXCEPT "WHERE SAID EMPLOYEE HAS NOT HAD ACTUAL NOTICE OF
ANY NEGLIGENTLY MAINTAINED CONDITION OR PRACTICE."  THE BILL, UNLIKE
THE SENATE BILL AS THE REPRESENTATIVE REPORTING IT EXPLAINED, LEFT
UNTOUCHED THE RULE OF TOLEDO, ST. L. & W.R. CO. V. ALLEN, 276 U.S. 165,
"NAMELY, THAT IN THE ABSENCE OF SPECIAL CUSTOM OR UNUSUAL
CIRCUMSTANCES, A MAN WHO IS RUN OVER BY A SWITCHING MOVEMENT CANNOT
RECOVER."  FN24  IT WAS THE ALLEN OPINION ON WHICH THE COURT BELOW IN
THE INSTANT CASE PARTICULARLY RELIED.  BUT THE HOUSE BILL, WHICH THE
CHIEF RAILROAD COUNSEL APPEARING BEFORE THE SENATE COMMITTEE CONCEDED
WOULD MAKE NO CHANGE IN THE EXISTING LAW,  FN25  WAS REJECTED IN
CONFERENCE.  THE ALLEN CASE WAS SPECIFICALLY AND CAUSTICALLY DISCUSSED
AT THE SENATE HEARINGS, AND THE SENATE BILL WAS CLEARLY AIMED AT ENDING
ITS RULE.  FN26 

THE DOCTRINE OF ASSUMPTION RISK CAN NOT BE "ABOLISHED IN TOTO"  FN27
AND STILL REMAIN IN PARTIAL EXISTENCE AS THE COURT BELOW SUGGESTS.  THE
THEORY THAT A SERVANT IS COMPLETELY BARRED FROM RECOVERY FOR INJURY
RESULTING FROM HIS MASTER'S NEGLIGENCE, WHICH LEGISLATURES HAVE SOUGHT
TO ELIMINATE IN ALL ITS VARIOUS FORMS OF CONTRIBUTORY NEGLIGENCE, THE
FELLOW SERVANT RULE, AND ASSUMPTION OF RISK, MUST NOT, CONTRARY TO THE
WILL OF CONGRESS, BE ALLOWED RECRUDESCENCE UNDER ANY OTHER LABEL IN THE
COMMON LAW LEXICON.  THE ACT OF 1908 AND THE AMENDMENT OF 1939 ABOLISH
THE POST-PRIESTLEY V. FOWLER DEFENSES AND AUTHORIZE COMPARISON OF
NEGLIGENCE INSTEAD OF BARRING THE EMPLOYEE FROM ALL RECOVERY BECAUSE OF
CONTRIBUTORY NEGLIGENCE.  THEY LEAVE FOR PRACTICAL PURPOSES ONLY THE
QUESTION OF WHETHER THE CARRIER WAS NEGLIGENT AND WHETHER THAT
NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE INJURY. 

IN THIS SITUATION THE EMPLOYER'S LIABILITY IS TO BE DETERMINED UNDER
THE GENERAL RULE WHICH DEFINES NEGLIGENCE AS THE LACK OF DUE CARE UNDER
THE CIRCUMSTANCES; OR THE FAILURE TO DO WHAT A REASONABLE AND PRUDENT
MAN WOULD ORDINARILY HAVE DONE UNDER THE CIRCUMSTANCES OF THE
SITUATION; OR DOING WHAT SUCH A PERSON UNDER THE EXISTING CIRCUMSTANCES
WOULD NOT HAVE DONE.  FN28  A FAIR GENERALIZATION OF THE RULE IS GIVEN
IN THE SENATE COMMITTEE REPORT ON THE 1939 AMENDMENT:  "IN JUSTICE, THE
MASTER OUGHT TO BE HELD LIABLE FOR INJURIES ATTRIBUTABLE TO CONDITIONS
UNDER HIS CONTROL WHEN THEY ARE NOT SUCH AS A REASONABLE MAN OUGHT TO
MAINTAIN IN THE CIRCUMSTANCES."  FN29 OF COURSE IN ANY CASE THE
STANDARD OF CARE MUST BE COMMENSURATE TO THE DANGERS OF THE BUSINESS. 
HOUGH V. RAILWAY CO., 100 U.S. 213, 218; CF. NORTHERN PACIFIC R. CO. V.
HERBERT, 116 U.S. 642, 652. 

NO CASE IS TO BE WITHHELD FROM A JURY ON ANY THEORY OF ASSUMPTION OF
RISK; AND QUESTIONS OF NEGLIGENCE SHOULD UNDER PROPER CHARGE FROM THE
COURT BE SUBMITTED TO THE JURY FOR THEIR DETERMINATION.  MANY YEARS AGO
THIS COURT SAID OF THE PROBLEMS OF NEGLIGENCE, "WE SEE NO REASON, SO
LONG AS THE JURY SYSTEM IS THE LAW OF THE LAND, AND THE JURY IS MADE
THE TRIBUNAL TO DECIDE DISPUTED QUESTIONS OF FACT, WHY IT SHOULD NOT
DECIDE SUCH QUESTIONS AS THESE AS WELL AS OTHERS."  JONES V. EAST
TENNESSEE, V. & G.R. CO., 128 U.S. 443, 445.  OR AS WE HAVE PUT IT ON
ANOTHER OCCASION, "WHERE THE FACTS ARE IN DISPUTE, AND THE EVIDENCE IN
RELATION TO THEM IS THAT FROM WHICH FAIR-MINDED MEN MAY DRAW DIFFERENT
INFERENCES," THE CASE SHOULD GO TO THE JURY.  FN30 

WE THINK THAT THE QUESTION OF NEGLIGENCE ON THE PART OF THE RAILROAD
AND ON THE PART OF THE EMPLOYEE SHOULD HAVE BEEN SUBMITTED TO THE
JURY.  THE DECISION BELOW IS REVERSED AND THE CASE IS REMANDED FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  IT WAS SO DARK THAT WHEN THE ENGINEER AFTER THE ACCIDENT ASKED
THE FIREMAN TO PICK UP AN OBJECT NEAR THE TRACKS, THE FIREMAN REPLIED,
"NO, I AM AFRAID TO GO DOWN IN THE DARK BY MYSELF; YOU COME WITH ME." 

FN2  SEE, E.G., TOLEDO, ST. L. & W.R. CO. V. ALLEN, 276 U.S. 165,
171, 172; MISSOURI PACIFIC R. CO. V. AEBY, 275 U.S. 426, 430.  IT IS
SOMETIMES SAID THAT COURTS HAVE HELD THE MASTER BLAMELESS IN ACTIONS BY
EMPLOYEES WHO HAVE ENTERED AND REMAINED IN HAZARDOUS OCCUPATIONS ON THE
PREMISE THAT THE EMPLOYEE ASSUMED THE RISK; BUT THE THEORY HAS NOT
ALWAYS APPEARED UNDER THE NAME "ASSUMPTION OF RISK" SINCE THE SAME
RESULT IS REACHED BY ASSIGNING A GIVEN CASE TO ONE OF THREE PRACTICALLY
INTERCHANGEABLE CATEGORIES:  (A) THE EMPLOYEE ASSUMED THE RISK; (B) HE
WAS GUILTY OF CONTRIBUTORY NEGLIGENCE; (C) THE MASTER WAS NOT
NEGLIGENT.  SEE 35 AM. JUR.  719 AND 3 LABATT, MASTER AND SERVANT, 2D
ED. PAR. 1164-1172, 1205, 1210.  THE COURT BELOW THOUGHT THE AMENDMENT
ELIMINATED DEFENSE (A) BUT IN EFFECT RETAINED DEFENSE (C). 

FN3  SCHLEMMER V. BUFFALO, R. & P. RY. CO., 205 U.S. 1, 12, 13. 

FN4  THE FOLLOWING TABLE DRAWN FROM THE 51ST THROUGH THE 55TH REPORTS
OF THE INTERSTATE COMMERCE COMMISSION, INDICATES THAT A SUBSTANTIAL
NUMBER OF RAILROAD EMPLOYEES ARE KILLED AND INJURED EACH YEAR: 

EMPLOYEES KILLED AND INJURED ON STEAM RAILWAYS

                 KILLED  INJURED 

1936......................       593    9,021 

1937......................       557    9,294 

1938......................       386    6,481 

1939......................       400    6,988 

1940......................       475    7,956 

FN5  SEE 35 AM. JUR.  717; AND FOR DISCUSSION OF THIS VIEW, SEE
POUND, ECONOMIC INTERPRETATION OF TORTS, 53 HARV. L. REV. 365, 373. 

FN6  TUTTLE V. DETROIT, G.H. & M. RY., 122 U.S. 189, 196. 
REPRESENTATIVE CLAIBORNE, ADVOCATING A BILL TO ABOLISH ASSUMPTION OF
RISK AS A DEFENSE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT AT A
COMMITTEE HEARING IN THE 75TH CONGRESS EXPRESSED A CONTRARY VIEW AS TO
THE USEFULNESS OF THE DOCTRINE AS AN ACCIDENT PREVENTIVE:  "THE COURTS
WENT ALONG AND COMMENCED TO WEAVE INTO THE DECISIONS THIS ASSUMPTION OF
RISK DOCTRINE  ...  THEY SAID FOR ONE THING THAT IT IS GOOD PUBLIC
POLICY TO HOLD THE EMPLOYEE LIABLE WHEN HE KNEW OF CERTAIN CONDITIONS
AND DID NOT PROTECT HIMSELF AGAINST THEM; THAT BY DOING THAT, YOU MADE
THE MAN BETTER REGARD HIS TWO LEGS, OR BETTER REGARD HIS TWO HANDS, OR
BETTER REGARD HIS STOMACH.  WHY, NO EMPLOYEE OF A RAILROAD COMPANY IS
GOING OUT THERE AND LOSE AN ARM OR AN EYE OR A LEG AND RELY ON A JURY
TO MAKE HIM WHOLE."  HEARINGS BEFORE SUB-COMMITTEE NUMBER 4 OF THE
COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, 75TH CONG., 1ST
SESS., ON H.R. 5755, H.R. 7336 AND H.R. 7621, P. 62. 

FN7  3 M. & W. 1, 6(EX. 1837); ON THE QUESTION OF WHICH WAS THE FIRST
CASE CREATING THIS DOCTRINE, CF. CHICAGO, M. & ST. P. RY. CO. V. ROSS,
112 U.S. 377, 386. 

FN8  "MORALLY SPEAKING, THOSE WHO EMPLOY MEN ON DANGEROUS WORK
WITHOUT DOING ALL IN THEIR POWER TO OBVIATE THE DANGER ARE HIGHLY
REPREHENSIBLE, AS I CERTAINLY THINK THE COMPANY WERE IN THE PRESENT
INSTANCE.  THE WORKMAN WHO DEPENDS ON HIS EMPLOYMENT FOR THE BREAD OF
HIMSELF AND HIS FAMILY IS THUS TEMPTED TO INCUR RISKS TO WHICH, AS A
MATTER OF HUMANITY, HE OUGHT NOT TO BE EXPOSED.  BUT LOOKING AT THE
MATTER IN A LEGAL POINT OF VIEW, IF A MAN, FOR THE SAKE OF THE
EMPLOYMENT, TAKES IT OR CONTINUES IN IT WITH A KNOWLEDGE OF ITS RISKS,
HE MUST TRUST HIMSELF TO KEEP CLEAR OF INJURY."  WOODLEY V.
METROPOLITAN DIST. RY. CO., L.R. 2 EX. DIV. 384(1887). 

FN9  FOR BRIEF DISCUSSION OF THE ENGLISH EXPERIENCE, SEE PACKER,
WORKMEN'S COMPENSATION, SEN. DOC. 618, 62ND CONG., P. 5; COHEN,
WORKMEN'S COMPENSATION IN GREAT BRITAIN, CHAP. 5.  FOR AN ACCOUNT
COVERING THE HISTORY OF ENGLISH AND AMERICAN WORKMEN'S COMPENSATION
LAWS, SEE DODD, ADMINISTRATION OF WORKMEN'S COMPENSATION, CHAPS.  1 &
2. 

FN10  HOUGH V. RAILWAY CO., 100 U.S. 213, 217.  SEE ALSO NARRAMORE V.
CLEVELAND, C., C. & ST. L. RY. CO., 96 F. 298. 

FN11  SEE WARREN, VOLENTI NON FIT INJURIA, ETC., 8 HARV. L. REV.
457(1895); BOHLEN, VOLUNTARY ASSUMPTION OF RISK, 20 HARV. L. REV. 14,
91, (1906). 

FN12  SENATOR NEELY, SPONSOR OF THE 1939 AMENDMENT, EXPLICITLY
REJECTED THE ECONOMIC THEORY WHICH WAS THE BASIS OF THE EARLY OPINIONS:
"THE CONTENTION THAT YOU HAVE ADVANCED APPARENTLY EMBRACES THE THEORY
THAT THE EMPLOYEE  ...  VOLUNTARILY ASSUMED THE RISK IN SPITE OF THE
FACT THAT THE EMPLOYER SAID, IN EFFECT, 'YOU TAKE THE RISK OR YOU GET
NO JOB.'  IN THESE DAYS WHEN MILLIONS ARE UNEMPLOYED AND MUST FIND WORK
IN ORDER TO SAVE THEMSELVES AND THEIR FAMILIES FROM DISTRESS, THE
SITUATION IS SO DESPERATE THAT MEN WILL SIGN ANY SORT OF WAIVER OR
AGREEMENT IN ORDER TO OBTAIN EMPLOYMENT."  HEARINGS, SUBCOMMITTEE OF
THE SENATE JUDICIARY COMMITTEE, 76TH CONG., 1ST SESS., ON S. 1708, P.
33. 

FN13  FOR COLLECTIONS OF EARLY STATE CASES, SEE 49 L.R.A. 33 AND 97
AMER.  STATE REPORTS 877.  EARLY STATE AND FOREIGN STATUTES ARE
SUMMARIZED IN THE REPORT OF THE HOUSE JUDICIARY COMMITTEE ON THE 1906
ACT, REPT. NO. 2335, P. 2, AND DECISIONS ON STATE STATUTES ARE
COLLECTED IN THE AM. STATE REP. NOTE 891.  THE SEABOARD AIR LINE CASE,
SUPRA, HELD THESE STATUTES INAPPLICABLE TO ACTIONS UNDER THE FEDERAL
ACT. 

FN14  FOR A VIGOROUS ATTACK ON THIS DECISION, SEE BUFORD, ASSUMPTION
OF RISK UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 28 HARV. L. REV.
163; AND SEE PETERSON, THE JOKER IN THE FEDERAL EMPLOYERS' LIABILITY
ACT, 80 CENT. L.J. 5.  THE HOUSE JUDICIARY COMMITTEE IN REPORTING A
BILL AIMED AT MAKING SOME MINOR MODIFICATION IN THE ASSUMPTION OF RISK
RULE STATED THAT THE 1908 CONGRESS NEVER "DREAMED, WHEN IT PASSED THIS
FORMER LAW, THAT THIS DEFENSE (ASSUMPTION OF RISK) WOULD EVER BE RAISED
BY THE USE OF" SEC. 4 OF THE ACT.  REPORT OF THE HOUSE OF
REPRESENTATIVES COMMITTEE ON JUDICIARY, 76TH CONG., 1ST SESS., REPT.
NO. 1222, ON H.R. 4988, P. 4. 

FN15  SEE 49 L.R.A. 33, 49(RELATION BETWEEN DEFENSES OF ASSUMPTION OF
RISK AND CONTRIBUTORY NEGLIGENCE), AND 35 AM. JUR.  719(PRAGMATIC
DISTINCTIONS SHOWN TO BE LACKING). 

FN16  FOR SOME ANALYSIS OF THE CASES, SEE NOTE 32 COL. L. REV. 1384,
53 HARV. L. REV. 341, 71 A.L.R. 451, 89 A.L.R. 693.  FOR AN ESTIMATE OF
THEIR QUANTITY, SEE SCHOENE AND WATSON, WORKMEN'S COMPENSATION ON
INTERSTATE RAILWAYS, 47 HARV. L. REV. 389, 394. 

FN17  "IN THOUSANDS OF CASES THE DOCTRINE IS COMPLICATED BY 'PROMISE
TO REPAIR,' 'PEREMPTORY ORDER,' AND OTHER SPECIAL INCIDENTS.  THE
'SIMPLE TOOL' DOCTRINE ALSO AROSE AS AN EXCEPTION.  THE 'PROMISE TO
REPAIR' ASPECT OF THE QUESTION IS FURTHER CONFUSED BY TWO SUPERIMPOSED
THEORIES; THAT THE EMPLOYEE MAY RELY UPON SUCH PROMISE FOR A REASONABLE
TIME AND, NEXT, THAT IF THE DANGER WAS SO MANIFEST THAT NO REASONABLE
PERSON WOULD ACT UPON SUCH PROMISE, THEN ASSUMPTION OF RISK IS
REESTABLISHED."  HOUSE COMMITTEE REPORT, SUPRA, NOTE 14, P. 4.  FOR A
COLLECTION OF CITATIONS ON ALL OF THE ASSUMPTION OF RISK PROBLEMS, SEE
2 ROBERTS FEDERAL LIABILITY OF CARRIERS, 2ND ED., CHAPTER 39.  FOR A
DISCUSSION OF THE "SIMPLE TOOL" DOCTRINE, SEE JACOB V. NEW YORK CITY,
315 U.S. 752, 756. 

FN18  HARPER, THE LAW OF TORT, 292. 

FN19  S. 1708, 76TH CONG., 1ST SESS. 

FN20  SUBSTANTIALLY THE SAME PROPOSAL AS THAT FINALLY ADOPTED IN 1939
WAS BEFORE THE 75TH CONGRESS IN H.R. 7336.  THE CHIEF LABOR EXPONENT OF
THAT BILL SAID:  THE "BILL IN ITS NATURE IS INTENDED TO RELIEVE THE
SERVANT FROM THE ASSUMPTION-OF-RISK DOCTRINE AS INTERPRETED AND APPLIED
BY OUR UNITED STATES SUPREME COURT."  HEARINGS, SUPRA, NOTE 6, P. 69. 
OR, AS IT WAS PUT BY THE PRINCIPAL RAILROAD REPRESENTATIVE AT THE 1939
SENATE HEARINGS, "HERE  ...  THE PROPOSAL IS TO ABOLISH THE DEFENSE OF
ASSUMED RISK, TO ABOLISH IT IN TOTO."  HEARINGS, NOTE 12, SUPRA, P. 37,
38. 

FN21  "BUT SUCH SIMPLE DOCTRINES DO NOT APPLY EQUITABLY UNDER THE
INFINITE COMPLEXITIES OF MODERN INDUSTRIAL PRACTICES WHEN ONE'S FELLOW
SERVANTS MAY BE NUMBERED BY HUNDREDS OR EVEN THOUSANDS, AND UNLIMITED
OUTPUT AND MAXIMUM SPEED ARE WATCHWORDS ON EVERY HAND.  THE COMMONLAW
DOCTRINE OF ASSUMPTION OF RISK, AS APPLIED TO THE WORKER IN A SMALL
FACTORY, CANNOT BE FAIRLY APPLIED TO THE RAILROAD MAN, WHOSE SERVICES
ARE PERFORMED OVER 150 MILES OF RAILROAD TRACK, OR IN A LARGE AND
CONGESTED RAILROAD YARD. 

"THE PRESENT RULE APPARENTLY IGNORES THE FACT THAT THE MASTER, AND
NOT THE SERVANT, HAS CONTROL OVER THE CONDITIONS WHICH AFFECT THE
SAFETY OF EMPLOYEES.  ...  THE EXISTING RULE NOT ONLY PERMITS THE
EMPLOYER TO BE CARELESS ABOUT THE CONDITION OF HIS PREMISES BUT, IN
EFFECT, PLACES A PREMIUM UPON HIS CARELESSNESS.  ...    "UNDER PRESENT
ECONOMIC CONDITIONS, EMPLOYEES MUST, OF NECESSITY, CONTINUE TO WORK
UNDER UNSAFE CONDITIONS OR FREQUENTLY SACRIFICE THE FRUITS OF MANY
YEARS OF ACCUMULATED SENIORITY, GO ON RELIEF, OR BEG THEIR BREAD." 

REPORT OF THE SENATE COMMITTEE ON JUDICIARY, 76TH CONG., 1ST SESS.,
REPT. NO. 661, P. 4. 

FN22  ONE STATEMENT BY THE BILL'S CHIEF SUPPORTER AT THE SENATE
HEARINGS COMES VERY CLOSE TO COVERING THE INSTANT CASE:  "IT GETS BACK
TO OUR ORIGINAL ARGUMENT THAT THE COURTS HAVE SO ENLARGED UPON THIS
DOCTRINE THAT WE ARE CONFRONTED WITH SUCH A SITUATION AS THIS:  A POOR
FELLOW WORKING IN A YARD, INTENT UPON HIS WORK, AND SOMEBODY KICKS A
CAR ON TOP OF HIM, AND THE COURTS, NOTWITHSTANDING HE HAS NO KNOWLEDGE
OF IT, IF HE IS STRUCK, HOLD THAT HE HAS NO RIGHT TO RECOVER.  IT MAY
BE THAT HE WAS NEGLIGENT, BUT AGAIN I SAY THE COMPARATIVE NEGLIGENCE
DOCTRINE SHOULD BE APPLIED."  HEARINGS, NOTE 12, SUPRA, P. 78. 

FN23  H.R. 4988, 76TH CONG., 1ST SESS. 

FN24  HOUSE REPORT, NOTE 14, SUPRA, P. 6. 

FN25  SENATE HEARINGS, NOTE 12, SUPRA, P. 61. 

FN26  SENATE HEARINGS, NOTE 12, SUPRA, 14, 17, 76, 81. 

FN27  SUPRA, NOTE 20. 

FN28  RAILROAD CO. V. JONES, 95 U.S. 439, 442; TEXAS & PACIFIC RY.
CO. V. BARRETT, 166 U.S. 617, 619; GRAND TRUNK RY. CO. V. IVES, 144
U.S. 408. 

FN29  SEN. REPORT, SUPRA, NOTE 21, P. 4. 

FN30  WASHINGTON & GEORGETOWN R. CO. V. MCDADE, 135 U.S. 554, 572. 
SEE ALSO KANE V. NORTHERN CENTRAL RY. CO., 128 U.S. 91, 95, 96; HOUGH
V. RAILWAY CO., SUPRA, 225; JACOB V. NEW YORK CITY, 315 U.S. 752, 757. 
IT APPEARS TO BE THE CLEAR CONGRESSIONAL INTENT THAT, TO THE MAXIMUM
EXTENT PROPER, QUESTIONS IN ACTIONS ARISING UNDER THE ACT SHOULD BE
LEFT TO THE JURY:  "AT THE BEGINNING THIS DEFENSE (ASSUMPTION OF RISK)
WAS DEEMED TO BE AT MOST A JURY QUESTION.  BUT REPEATED HOLDINGS HAVE
ENCROACHED MORE AND MORE UPON THE RIGHT OF THE EMPLOYEE AND VARIOUS NEW
DOCTRINES OR AMPLIFICATIONS OF PREVIOUS PRINCIPLES HAVE TENDED
CONSTANTLY TO TREAT THIS DEFENSE AS ONE TO BE DETERMINED BY THE COURTS
AS 'MATTER OF LAW' - TAKING IT AWAY FROM THE JURY; AND THE COURTS HAVE
DECIDED NOW IT IS A QUESTION OF LAW."  HOUSE REPORT, SUPRA, NOTE 14, P.
1.  CF. DELAWARE, L. & W.R. CO. V. KOSKE, 279 U.S. 7, 11; TOLEDO, ST.
L. & W.R. CO. V. ALLEN, 276 U.S. 165, 170. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

THE PHRASE "ASSUMPTION OF RISK" IS AN EXCELLENT ILLUSTRATION OF THE
EXTENT TO WHICH UNCRITICAL USE OF WORDS BEDEVILS THE LAW.  A PHRASE
BEGINS LIFE AS A LITERARY EXPRESSION; ITS FELICITY LEADS TO ITS LAZY
REPETITION; AND REPETITION SOON ESTABLISHES IT AS A LEGAL FORMULA,
UNDISCRIMINATINGLY USED TO EXPRESS DIFFERENT AND SOMETIMES
CONTRADICTORY IDEAS.  THUS, IN THE SETTING OF ONE SET OF CIRCUMSTANCES,
"ASSUMPTION OF RISK" HAS BEEN USED AS A SHORTHAND WAY OF SAYING THAT
ALTHOUGH AN EMPLOYER MAY HAVE VIOLATED THE DUTY OF CARE WHICH HE OWED
HIS EMPLOYEE, HE COULD NEVERTHELESS ESCAPE LIABILITY FOR DAMAGES
RESULTING FROM HIS NEGLIGENCE IF THE EMPLOYEE, BY ACCEPTING OR
CONTINUING IN THE EMPLOYMENT WITH "NOTICE" OF SUCH NEGLIGENCE, "ASSUMED
THE RISK."  IN SUCH SITUATIONS "ASSUMPTION OF RISK" IS A DEFENSE WHICH
ENABLES A NEGLIGENT EMPLOYER TO DEFEAT RECOVERY AGAINST HIM.  IN THE
SETTING OF A TOTALLY DIFFERENT SET OF CIRCUMSTANCES, "ASSUMPTION OF
RISK" HAS A TOTALLY DIFFERENT MEANING.  INDUSTRIAL ENTERPRISE ENTAILS,
FOR ALL THOSE ENGAGED IN IT, CERTAIN HAZARDS TO LIFE AND LIMB WHICH NO
AMOUNT OF CARE ON THE PART OF THE EMPLOYER CAN AVOID.  IN DENYING
RECOVERY TO AN EMPLOYEE INJURED AS A RESULT OF EXPOSURE TO SUCH A
HAZARD, WHERE THE EMPLOYER HAS IN NO SENSE BEEN NEGLIGENT OR DERELICT
IN THE DUTY OWED TO HIS EMPLOYEES, COURTS HAVE OFTEN SAID THAT THE
EMPLOYEE "ASSUMED THE RISK."  HERE THE PHRASE "ASSUMPTION OF RISK" IS
USED SIMPLY TO CONVEY THE IDEA THAT THE EMPLOYER WAS NOT AT FAULT AND
THEREFORE NOT LIABLE. 

PLAINLY ENOUGH ONLY MISCHIEF COULD RESULT FROM USING A SINGLE PHRASE
TO EXPRESS TWO SUCH DIFFERENT IDEAS.  SUCH AMBIGUITY NECESSARILY DOES
HARM TO THE DESIRABILITY OF CLARITY AND COHERENCE IN ANY CIVILIZED
SYSTEM OF LAW.  BUT THE GREATER MISCHIEF WAS THAT IN ONE OF ITS ASPECTS
THE PHRASE "ASSUMPTION OF RISK" GAVE JUDICIAL EXPRESSION TO A SOCIAL
POLICY THAT ENTAILED MUCH HUMAN MISERY.  THE NOTION OF "ASSUMPTION OF
RISK" AS A DEFENSE - THAT IS, WHERE THE EMPLOYER CONCEDEDLY FAILED IN
HIS DUTY OF CARE AND NEVERTHELESS ESCAPED LIABILITY BECAUSE THE
EMPLOYEE HAD "AGREED" TO "ASSUME THE RISK" OF THE EMPLOYER'S FAULT -
RESTED, IN THE CONTEXT OF OUR INDUSTRIAL SOCIETY, UPON A PURE FICTION. 
AND IN ALL ENGLISH-SPEAKING COUNTRIES LEGISLATION WAS NECESSARY TO
CORRECT THIS INJUSTICE.  IN ENFORCING SUCH LEGISLATION THE COURTS
SHOULD NOT LOSE SIGHT OF THE AMBIGUOUS NATURE OF THE DOCTRINE WITH
WHICH THE LEGISLATION DEALT.  IN GIVING EFFECT TO THE LEGISLATIVE
POLICY, CARE MUST BE TAKEN LEST SUCH AMBIGUITY PERPETUATE THE OLD
MISCHIEF AGAINST WHICH THE NEW LEGISLATION WAS DIRECTED. 

OUR PRESENT CONCERN IS WITH THE FEDERAL EMPLOYERS' LIABILITY ACT. 
PRIOR TO 1939, THE ONLY INROAD MADE BY THE ACT UPON THE DOCTRINE OF
"ASSUMPTION OF RISK" AS A DEFENSE TO LIABILITY ARISING FROM NEGLIGENCE
WAS THAT IN ANY ACTION BROUGHT BY AN EMPLOYEE, HE "SHALL NOT BE HELD TO
HAVE ASSUMED THE RISKS OF HIS EMPLOYMENT IN ANY CASE WHERE THE
VIOLATION BY SAID COMMON CARRIER OF ANY STATUTE ENACTED FOR THE SAFETY
OF EMPLOYEES CONTRIBUTED TO THE INJURY OR DEATH OF SUCH EMPLOYEE." 
THE PROVISION WAS CONSTRUED, NATURALLY ENOUGH, TO MEAN THAT "THE
ASSUMPTION OF RISK AS A DEFENSE IS ABOLISHED ONLY WHERE THE NEGLIGENCE
OF THE CARRIER IS IN VIOLATION OF SOME STATUTE ENACTED FOR THE SAFETY
OF EMPLOYEES.  IN OTHER CASES, THEREFORE, IT IS RETAINED."  JACOBS V.
SOUTHERN RY. CO., 241 U.S. 229, 235.  BY ONLY PARTIALLY WITHDRAWING THE
DEFENSE OF "ASSUMPTION OF RISK," CONGRESS ENABLED THE RAILROADS TO
AVOID LIABILITY IN MANY SITUATIONS WHERE THE EMPLOYEE'S INJURY RESULTED
FROM THE NEGLIGENCE OF THE CARRIER IN THE ONLY WAY IN WHICH AN EMPLOYER
CAN BE NEGLIGENT, NAMELY, THROUGH THE NEGLIGENCE OF ITS SERVANTS.  IN
OTHER WORDS, CONGRESS CONTINUED TO SANCTION THE FICTION OF ATTRIBUTING
TO EMPLOYEES A WILLINGNESS TO BEAR THE CONSEQUENCES OF THE CARRIER'S
NEGLIGENCE, OTHER THAN THAT ARISING FROM ITS VIOLATION OF A STATUTE
ENACTED FOR THE SAFETY OF EMPLOYEES. 

THIS WAS THE UNFORTUNATE SITUATION WHICH THE 1939 AMENDMENT, THE ACT
OF AUGUST 11, 1939, C. 685, 53 STAT. 1404, SOUGHT TO REMEDY.  TO SEC. 4
WAS ADDED THE PROVISION THAT IN ANY ACTION BROUGHT BY AN EMPLOYEE HE
"SHALL NOT BE HELD TO HAVE ASSUMED THE RISKS OF HIS EMPLOYMENT IN ANY
CASE WHERE SUCH INJURY OR DEATH RESULTED IN WHOLE OR IN PART FROM THE
NEGLIGENCE OF ANY OF THE OFFICERS, AGENTS, OR EMPLOYEES OF SUCH
CARRIER.  ...  "  THE EFFECT OF THIS PROVISION IS TO MAKE IT CLEAR
THAT, WHATEVER OTHER RISKS AN EMPLOYEE MAY ASSUME, HE DOES NOT "ASSUME
THE RISK" OF THE NEGLIGENCE OF THE CARRIER OR ITS OTHER EMPLOYEES. 
ONCE THE NEGLIGENCE OF THE CARRIER IS ESTABLISHED, IT CANNOT BE
RELIEVED OF LIABILITY BY PLEADING THAT THE EMPLOYEE "ASSUMED THE
RISK." 

BUT THE 1939 AMENDMENT LEFT INTACT THE FOUNDATION OF THE CARRIER'S
LIABILITY - NEGLIGENCE.  UNLIKE THE ENGLISH ENACTMENT WHICH, NEARLY
FIFTY YEARS AGO, RECOGNIZED THAT THE COMMON LAW CONCEPT OF LIABILITY
FOR NEGLIGENCE IS ARCHAIC AND UNJUST AS A MEANS OF COMPENSATION FOR
INJURIES SUSTAINED BY EMPLOYEES UNDER MODERN INDUSTRIAL CONDITIONS, THE
FEDERAL LEGISLATION HAS RETAINED NEGLIGENCE AS THE BASIS OF A CARRIER'S
LIABILITY.  FOR REASONS THAT ARE ITS CONCERN AND NOT OURS, CONGRESS
CHOSE NOT TO FOLLOW THE EXAMPLE OF MOST STATES IN ESTABLISHING SYSTEMS
OF WORKMEN'S COMPENSATION NOT BASED UPON NEGLIGENCE.  CONGRESS HAS TO
SOME EXTENT ALLEVIATED THE DOCTRINES OF THE LAW OF NEGLIGENCE AS
APPLIED TO RAILROAD EMPLOYEES.  BY SPECIFIC PROVISIONS IN THE FEDERAL
EMPLOYERS' LIABILITY ACT, IT HAS SWEPT AWAY "ASSUMPTION OF RISK" AS A
DEFENSE ONCE NEGLIGENCE IS ESTABLISHED.  BUT IT HAS LEFT UNDISTURBED
THE OTHER MEANING OF "ASSUMPTION OF RISK," NAMELY, THAT AN EMPLOYEE
INJURED AS A CONSEQUENCE OF BEING EXPOSED TO A RISK WHICH THE EMPLOYER
IN THE EXERCISE OF DUE CARE COULD NOT AVOID IS NOT ENTITLED TO RECOVER,
SINCE THE EMPLOYER WAS NOT NEGLIGENT. 

THE POINT IS ILLUSTRATED BY TWO OPINIONS OF MR. JUSTICE HOLMES.  IN
SCHLEMMER V. BUFFALO, R. & P. RY. CO., 205 U.S. 1, 12-13, HE CALLED
ATTENTION TO THE DANGER OF RELIEVING FROM LIABILITY FOR NEGLIGENCE BY
TALKING ABOUT "ASSUMPTION OF RISK" - A DANGER RESULTING FROM THE
AMBIGUITY OF THE PHRASE.  "ASSUMPTION OF RISK" BY AN EMPLOYEE MAY BE A
WAY OF EXPRESSING THE CONCLUSION THAT HE HAS BEEN GUILTY OF
CONTRIBUTORY NEGLIGENCE.  BUT AN EMPLOYEE CANNOT BE CHARGED WITH
CONTRIBUTORY NEGLIGENCE SIMPLY BECAUSE HE "ASSUMED THE RISK"; THE
INQUIRY IS, DID HIS CONDUCT DEPART FROM THAT OF A REASONABLY PRUDENT
EMPLOYEE IN HIS SITUATION?  AS MR. JUSTICE HOLMES ADMONISHED US IN THE
SCHLEMMER CASE, "UNLESS GREAT CARE BE TAKEN, THE SERVANT'S RIGHTS WILL
BE SACRIFICED BY SIMPLY CHARGING HIM WITH ASSUMPTION OF THE RISK UNDER
ANOTHER NAME."  IBID.  THAT CASE WAS DECIDED BEFORE THE FEDERAL
EMPLOYERS' LIABILITY ACT WAS IN FORCE.  IN A LATER CASE ARISING UNDER
THE ACT, CHESAPEAKE & OHIO RY. CO. V. NIXON, 271 U.S. 218, MR. JUSTICE
HOLMES FOR A UNANIMOUS COURT REVERSED A JUDGMENT FOR THE PLAINTIFF ON
THE GROUND THAT THE EMPLOYEE'S DEATH WAS CAUSED BY A FAILURE TO KEEP A
LOOKOUT WHICH WAS ONE OF THE "USUAL RISKS" OF HIS EMPLOYMENT.  TO BE
SURE, THIS DECISION WAS MADE PRIOR TO THE 1939 AMENDMENT, BUT IN THIS
RESPECT THAT ENACTMENT MAKES NO CHANGE IN THE LAW.  THE BASIS OF AN
ACTION UNDER THE ACT REMAINS THE CARRIER'S NEGLIGENCE.  THE CARRIER IS
NOT TO BE RELIEVED FROM THE CONSEQUENCES OF ITS NEGLIGENCE BY ANY CLAIM
THAT THE EMPLOYEE "ASSUMED THE RISK" OF ITS NEGLIGENCE.  BUT NEITHER IS
THE CARRIER TO BE CHARGED WITH THOSE INJURIES WHICH RESULT FROM THE
"USUAL RISKS" INCIDENT TO EMPLOYMENT ON RAILROADS - RISKS WHICH CANNOT
BE ELIMINATED THROUGH THE CARRIER'S EXERCISE OF REASONABLE CARE. 

"ASSUMPTION OF RISK" AS A DEFENSE WHERE THERE IS NEGLIGENCE HAS BEEN
WRITTEN OUT OF THE ACT.  BUT "ASSUMPTION OF RISK," IN THE SENSE THAT
THE EMPLOYER IS NOT LIABLE FOR THOSE RISKS WHICH IT COULD NOT AVOID IN
THE OBSERVANCE OF ITS DUTY OF CARE, HAS NOT BEEN WRITTEN OUT OF THE
LAW.  BECAUSE OF ITS AMBIGUITY THE PHRASE "ASSUMPTION OF RISK" IS A
HAZARDOUS LEGAL TOOL.  AS A MEANS OF INSTRUCTING A JURY, IT IS BOUND TO
CREATE CONFUSION.  IT SHOULD THEREFORE BE DISCARDED.  BUT UNTIL
CONGRESS CHOOSES TO ABANDON THE CONCEPT OF NEGLIGENCE, UPON WHICH THE
ACT NOW RESTS, IN FAVOR OF A SYSTEM OF WORKMEN'S COMPENSATION NOT
DEPENDENT UPON NEGLIGENCE, THE COURTS CANNOT DISCARD THE PRINCIPLE
EXPRESSED, IN ONE OF ITS SENSES, BY THE PHRASE "ASSUMPTION OF RISK,"
NAMELY, THAT A CARRIER IS NOT LIABLE UNLESS IT WAS NEGLIGENT. 

PERHAPS NO FIELD OF THE LAW COMES CLOSER TO THE LIVES OF SO MANY
FAMILIES IN THIS COUNTRY THAN DOES THE LAW OF NEGLIGENCE, IMBEDDED AS
IT IS IN THE FEDERAL EMPLOYERS' LIABILITY ACT.  IT IS MOST DESIRABLE,
THEREFORE, THAT THE LAW SHOULD NOT BE CLOUDY AND CONFUSED.  I AM NOT AT
ALL CERTAIN THAT THE CIRCUIT COURT OF APPEALS MISCONCEIVED THE NATURE
AND EXTENT OF THE CARRIER'S LIABILITY AFTER THE 1939 AMENDMENT, RATHER
THAN MERELY OBSCURED ITS UNDERSTANDING BY BECLOUDING TALK ABOUT
"ASSUMPTION OF RISK."  BUT SINCE I AGREE THAT THE DISTRICT COURT SHOULD
HAVE ALLOWED THE CASE TO GO TO THE JURY ON THE ISSUE OF NEGLIGENCE, I
CONCUR IN THE DECISION. 
..END :




















ZIFFRIN, INC. V. UNITED STATES, 318 U.S. 73 


NO. 245.  ARGUED DECEMBER 16, 1942.  - DECIDED FEBRUARY 1, 1943.  -
AFFIRMED. 


AT THE TIME OF THE FILING OF AN APPLICATION TO THE INTERSTATE COMMERCE
COMMISSION FOR A PERMIT UNDER THE "GRANDFATHER CLAUSE" OF SEC. 209(A)
OF THE INTERSTATE COMMERCE ACT TO CONTINUE DESIGNATED CONTRACT CARRIER
OPERATIONS, AND AT THE TIME OF THE HEARING BY THE COMMISSION ON THE
APPLICATION, SEC. 210 OF THE ACT PROVIDED THAT A CERTIFICATE AS A
COMMON CARRIER AND A PERMIT AS A CONTRACT CARRIER COULD NOT BE HELD BY
THE SAME CARRIER EXCEPT UPON A FINDING BY THE COMMISSION OF CONSISTENCY
WITH THE PUBLIC INTEREST.  PRIOR TO THE COMMISSION'S DECISION ON THE
APPLICATION, SEC. 210 WAS AMENDED TO PROVIDE THAT, WITHOUT A SIMILAR
FINDING, A CERTIFICATE AS A COMMON CARRIER AND A PERMIT AS A CONTRACT
CARRIER COULD NOT BE HELD BY CARRIERS WHICH ARE UNDER COMMON CONTROL. 
HELD: 

1.  THE COMMISSION WAS REQUIRED TO MAKE ITS DECISION ON THE
APPLICATION IN ACCORDANCE WITH THE ACT AS AMENDED.  P. 78. 

2.  THE CONTENTIONS THAT THE APPLICANT WAS NOT GIVEN PROPER NOTICE OF
THE HEARING, AND WAS DENIED AN OPPORTUNITY TO SHOW COMPLIANCE WITH THE
ACT AS AMENDED, ARE UNSUPPORTED.  P. 79. 

3.  THE COMMISSION'S ORDER DENYING THE APPLICATION ON THE GROUND THAT
THE APPLICANT WAS UNDER COMMON CONTROL WITH A CERTIFICATED COMMON
CARRIER, AND THAT THE APPLICATION COULD NOT BE GRANTED CONSISTENTLY
WITH THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION POLICY, IS
SUPPORTED BY THE EVIDENCE.  P. 80. 

ZIFFRIN, INCORPORATED, V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF INDIANA. 

APPEAL FROM A JUDGMENT OF A DISTRICT COURT OF THREE JUDGES REFUSING
TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL BRINGS HERE FOR REVIEW A JUDGMENT OF A STATUTORY THREE
JUDGE COURT DENYING A PETITION FOR AN INTERLOCUTORY AND A FINAL
INJUNCTION SETTING ASIDE AND ANNULLING AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION.  FN1  THE ORDER ATTACKED DENIED AN APPLICATION OF
APPELLANT, AN INDIANA CORPORATION, FILED FEBRUARY 4, 1936, FOR A PERMIT
TO CONTINUE DESIGNATED CONTRACT CARRIER OPERATIONS UNDER THE
GRANDFATHER CLAUSE OF SEC. 209(A) OF THE INTERSTATE COMMERCE ACT. 

THE DENIAL OF THE APPLICATION BY THE COMMISSION ON MAY 29, 1941, 28
M.C.C. 683, WAS ON THE GROUND THAT APPLICANT AND ZIFFRIN TRUCK LINES,
INC., A CERTIFICATED COMMON CARRIER BY MOTOR VEHICLE, WERE OWNED,
CONTROLLED AND MANAGED IN A COMMON INTEREST AND THAT UNDER SEC. 210 OF
THE INTERSTATE COMMERCE ACT, PART II, IT WOULD NOT BE CONSISTENT WITH
THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION POLICY TO GRANT THE
APPLICATION. 

OF THE APPLICATION AND THE ENTRY OF THE ORDER DENYING IT.  THE TWO
FORMS OF SEC. 210 APPEAR IN THE NOTE BELOW.  FN2 

IT IS APPELLANT'S CONTENTION THAT WHATEVER MAY HAVE BEEN THE EFFECT
OF THE EARLIER FORM, WITH THE PASSAGE OF THE AMENDMENT AFTER THE
HEARING THE APPLICANT SHOULD NOW HAVE AN OPPORTUNITY TO SHOW THE
ABSENCE OF COMMON CONTROL OF IT AND ZIFFRIN TRUCK LINES, INCORPORATED. 
AS SEC. 210 STOOD WHEN APPELLANT REQUESTED ITS PERMIT AND AT THE
HEARING, A CERTIFICATE AS A COMMON CARRIER AND A PERMIT AS A CONTRACT
CARRIER WERE NOT TO BE HELD BY THE SAME PERSON WITHOUT SPECIAL FINDING
OF CONSISTENCY WITH THE PUBLIC INTEREST BY THE COMMISSION.  THE
AMENDMENT PROVIDED THAT WITHOUT A SIMILAR SPECIAL FINDING NO PERSON
SHOULD HOLD A CONTRACT CARRIER PERMIT WHO WAS UNDER COMMON CONTROL WITH
A PERSON HOLDING A COMMON CARRIER CERTIFICATE.  PERSON, OF COURSE,
INCLUDED A CORPORATION.  49 U.S.C. 303(A)(1). 

OBVIOUSLY THE FEAR OF POSSIBLE EVASION LED TO THE CHANGE IN
LANGUAGE.  INDEED, THE COMMISSION HAD DISREGARDED THE CORPORATE FICTION
AND INTERPRETED THE EARLIER FORM AS COVERING PERSONS UNDER COMMON
CONTROL.  FN3  THIS WAS CALLED TO APPLICANT'S ATTENTION BY AN ORDER OF
JUNE 23, 1938, SETTING THE DATE FOR HEARING THE APPLICATION.  FN4  THE
INTERPRETATION WAS DISCUSSED IN THE EXAMINER'S REPORT, IN THE
COMMISSION'S REPORT, AND APPLIED, ADVERSELY TO APPELLANT, BY THE
FINDINGS.  28 M.C.C. 683, 692-99. 

WHEN THE TRANSPORTATION ACT OF 1940 WAS BEFORE THE SENATE, THE
DRAFTSMEN ADDED A SENTENCE TO THE EARLIER FORM OF SEC. 210, READING AS
FOLLOWS:  "THIS SECTION SHALL APPLY TO DUAL OPERATIONS BY AFFILIATED
CARRIERS."  WHEN THE BILL, S. 2009, IN THE TWO FORMS IN WHICH IT WAS
ENACTED IN THE SENATE AND THE HOUSE OF REPRESENTATIVES, WAS EXAMINED BY
THE INTERSTATE COMMERCE COMMISSION, THE CHAIRMAN OF ITS LEGISLATIVE
COMMITTEE TRANSMITTED A REPORT ON THE PROVISIONS OF THE BILL TO THE
CHAIRMAN OF THE SENATE INTERSTATE COMMERCE COMMITTEE AND THE CHAIRMAN
OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE N5.  IN THE
REPORT (AT PAGE 62) THIS COMMENT WAS MADE AS TO THE PRESENT SEC. 210: 

"DESIRABLE.   - (A) AFTER THE NEW SECTION 22 WHICH WE HAVE PROPOSED
ABOVE, ADD A NEW SECTION 23(WITH APPROPRIATE RENUMBERING OF SUBSEQUENT

'SEC. 23.  SECTION 210 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, IS
AMENDED BY ADDING AT THE END THEREOF THE FOLLOWING NEW SENTENCE:  "THIS

THIS SENTENCE HAS BEEN INTRODUCED AT THE END OF SECTION 45 OF THE
SENATE BILL, AND IT HAS OUR APPROVAL.  THE COMMISSION HAS CONSTRUED
TO REMOVE ALL DOUBT ON THE POINT." 

AT THE CONFERENCE OF THE COMMITTEE FOR THE TWO HOUSES OF CONGRESS,
THE FORM OF SEC. 210 WAS CHANGED TO THE PRESENT READING.  THE REPORT
CONTAINS THIS EXPLANATION:  FN6 

"SECTION 21(A).  DUAL OPERATIONS UNDER CERTIFICATES AND PERMITS,
MOTOR CARRIERS. 

"THE CONFERENCE SUBSTITUTE IN SECTION 21(A) AMENDS SECTION 210 OF THE
INTERSTATE COMMERCE ACT WHICH PROHIBITS A PERSON FROM HOLDING AT THE
SAME TIME BOTH A CERTIFICATE AS A COMMON CARRIER OF PROPERTY BY MOTOR
VEHICLE AND A PERMIT AS A CONTRACT CARRIER OF PROPERTY BY MOTOR VEHICLE
OVER THE SAME ROUTE OR WITHIN THE SAME TERRITORY, UNLESS FOR GOOD CAUSE
SHOWN THE COMMISSION SHALL FIND THAT BOTH FORMS OF OPERATING AUTHORITY
MAY BE HELD CONSISTENT WITH THE PUBLIC INTEREST AND WITH THE POLICY
DECLARED IN PART II, SO THAT THE SECTION WILL APPLY NOT ONLY TO A
PARTICULAR MOTOR CARRIER BUT ALSO TO ANY PERSON CONTROLLING, CONTROLLED
BY, OR UNDER COMMON CONTROL WITH, SUCH PERSON." 

IT IS UNNECESSARY, HOWEVER, TO DECIDE WHETHER THE COMMISSION
CORRECTLY APPLIED SEC. 210 AS ORIGINALLY ENACTED TO SUCH COMMON CONTROL
AS THE COMMISSION FOUND IN APPELLANT AND ZIFFRIN TRUCK LINES, INC. WE
ARE CONVINCED THAT THE COMMISSION WAS REQUIRED TO ACT UNDER THE LAW AS
IT EXISTED WHEN ITS ORDER OF MAY 29, 1941, WAS ENTERED.  THE PERMIT WAS
EFFECTIVE FOR THE FUTURE AND THE AMENDMENT FORBADE PERSONS UNDER COMMON
CONTROL HOLDING BOTH A PERMIT AND A CERTIFICATE.  PREVIOUSLY APPELLANT
HAD BEEN OPERATING UNDER AN EX PARTE PERMIT.  PROTESTS TO THE GRANT HAD
BEEN MADE ON ACCOUNT OF THE DUAL OPERATION, THE FORMAL HEARING WAS HELD
AND THE QUESTION RAISED BY THESE PROTESTS WAS HEARD AT LENGTH.  A
CHANGE IN THE LAW BETWEEN A NISI PRIUS AND AN APPELLATE DECISION
REQUIRES THE APPELLATE COURT TO APPLY THE CHANGED LAW.  VANDENBARK V.
OWENS-ILLINOIS GLASS CO., 311 U.S. 538, AND CASES CITED.  CF. DUPLEX
PRINTING PRESS CO. V. DEERING, 254 U.S. 443, 464.  A FORTIORI, A CHANGE
OF LAW PENDING AN ADMINISTRATIVE HEARING MUST BE FOLLOWED IN RELATION
TO PERMITS FOR FUTURE ACTS.  OTHERWISE THE ADMINISTRATIVE BODY WOULD
ISSUE ORDERS CONTRARY TO THE EXISTING LEGISLATION. 

WE FIND NO BASIS FOR APPELLANT'S CONTENTION THAT IT WAS GIVEN
IMPROPER NOTICE OF THE HEARING AND DENIED AN OPPORTUNITY TO SHOW
COMPLIANCE WITH THE AMENDED SECTION.  THE STEPS OF NOTICE AND HEARING
DETAILED ABOVE DEMONSTRATE THE ERROR OF THE FORMER CONTENTION.  AS TO
THE LATTER, IT IS MET COMPLETELY BY THE REPORT AND ORDER OF THE
COMMISSION, MADE WHILE THIS SUIT WAS PENDING IN THE DISTRICT COURT, AND
DENYING APPELLANT'S MOTION FOR RECONSIDERATION OF THE ORDER OF MAY 29,
1941.  ZIFFRIN, INCORPORATED, CONTRACT CARRIER APPLICATION, 33 M.C.C.
155.  THIS OPINION WAS CALLED TO OUR ATTENTION BY THE GOVERNMENT IN
BRIEF AND ARGUMENT.  IN THE CIRCUMSTANCES, WE WILL NOT DISREGARD IT.
THE COMMISSION THERE SAID, P. 156: 

"AT THE CONCLUSION OF THE TRIAL ON APPLICANT'S SUIT BEFORE THE THREE
JUDGE COURT, A CONFERENCE WAS HELD BETWEEN THE COUNSEL FOR ALL THE
PARTIES TO THE SUIT IN THE COURT'S CHAMBERS.  IT WAS THERE SUGGESTED BY
THE COURT THAT APPLICANT SUBMIT TO THIS COMMISSION SOME METHOD FOR
DIVORCING APPLICANT HEREIN FROM ZIFFRIN TRUCK LINES, INC., WHICH MIGHT
ELIMINATE THE CONFLICT WITH SECTION 210 OF THE ACT ON WHICH THE DENIAL
OF THE APPLICATION WAS GROUNDED.  PURSUANT TO THIS SUGGESTION,
APPLICANT HAS FILED A PETITION SEEKING REOPENING AND RECONSIDERATION OF
THE PROCEEDING, AND, AS A BASIS THEREFOR, PROPOSES A PLAN FOR
ELIMINATION OF THE COMMON CONTROL OF APPLICANT AND ZIFFRIN TRUCK LINES,
INC. THE PETITION IS OPPOSED BY AN ASSOCIATION OF MOTOR COMMON
CARRIERS.  IT IS UNDERSTOOD THAT THE FILING OF THIS PETITION AND ACTION
BY US THEREON DOES NOT TERMINATE THE COURT PROCEEDING.  PENDING OUR
ACTION ON THE PETITION, HOWEVER, THE ENTRY OF JUDGMENT BY THE COURT IS
BEING HELD IN ABEYANCE.  IN VIEW OF THE PENDENCY OF THE LITIGATION, WE
BELIEVE THAT A STATEMENT OF THE REASONS FOR OUR ACTION WITH RESPECT TO
THIS PETITION WILL BE HELPFUL."  THE COMMISSION THEN RESTATED THE
EVIDENCE SHOWING COMMON CONTROL OF THE TWO CORPORATIONS AND CONCLUDED
THAT THE PLAN PROPOSED WOULD NOT CHANGE THE SITUATION.  SEE 33 M.C.C.
155; 28 M.C.C. 683, 692 ET SEQ. THE EVIDENCE IS AMPLE TO SUPPORT THE
CONCLUSION OF THE COMMISSION ENTERED AT THE EARLIER HEARING.  THIS IS
SUFFICIENT TO SUPPORT THE ORDER UPON JUDICIAL REVIEW.  SHIELDS V. UTAH
IDAHO CENTRAL R. CO., 305 U.S. 177, 185; UNITED STATES V. MAHER, 307
U.S. 148, 155.  AFFIRMED. 

FN1  URGENT DEFICIENCIES ACT, 38 STAT. 208, 220, 28 U.S.C. SECS. 47,
47(A); JUDICIAL CODE SEC. 238, 43 STAT. 936, 938, 28 U.S.C. SEC. 345;
SEC. 205(H) INTERSTATE COMMERCE ACT, PART II; 49 STAT. 543, 550, 49
U.S.C. SEC. 305(H). 

FN2  SECTION 210(49 STAT. 554), AS ORIGINALLY ENACTED IN THE MOTOR
CARRIER ACT, 1935, PROVIDED: 

"NO PERSON, AFTER JANUARY 1, 1936, SHALL AT THE SAME TIME HOLD UNDER
THIS PART A CERTIFICATE AS A COMMON CARRIER AND A PERMIT AS A CONTRACT
CARRIER AUTHORIZING OPERATION FOR THE TRANSPORTATION OF PROPERTY BY
MOTOR VEHICLE OVER THE SAME ROUTE OR WITHIN THE SAME TERRITORY, UNLESS
FOR GOOD CAUSE SHOWN THE COMMISSION SHALL FIND THAT SUCH CERTIFICATE
AND PERMIT MAY BE HELD CONSISTENTLY WITH THE PUBLIC INTEREST AND WITH
THE POLICY DECLARED IN SECTION 202(A) OF THIS PART." 

TRANSPORTATION ACT OF 1940 PROVIDES: 

"UNLESS, FOR GOOD CAUSE SHOWN, THE COMMISSION SHALL FIND, OR SHALL
HAVE FOUND, THAT BOTH A CERTIFICATE AND A PERMIT MAY BE SO HELD
CONSISTENTLY WITH THE PUBLIC INTEREST AND WITH THE NATIONAL
TRANSPORTATION POLICY DECLARED IN THIS ACT - 

"(1)  NO PERSON, OR ANY PERSON CONTROLLING, CONTROLLED BY, OR UNDER
COMMON CONTROL WITH SUCH PERSON, SHALL HOLD A CERTIFICATE AS A COMMON
CARRIER AUTHORIZING OPERATION FOR THE TRANSPORTATION OF PROPERTY BY
MOTOR VEHICLE OVER A ROUTE OR WITHIN A TERRITORY, IF SUCH PERSON, OR
ANY SUCH CONTROLLING PERSON, CONTROLLED PERSON, OR PERSON UNDER COMMON
CONTROL, HOLDS A PERMIT AS A CONTRACT CARRIER AUTHORIZING OPERATION FOR
THE TRANSPORTATION OF PROPERTY BY MOTOR VEHICLE OVER THE SAME ROUTE OR
WITHIN THE SAME TERRITORY; AND 

"(2)  NO PERSON, OR ANY PERSON CONTROLLING, CONTROLLED BY, OR UNDER
COMMON CONTROL WITH SUCH PERSON, SHALL HOLD A PERMIT AS A CONTRACT
CARRIER AUTHORIZING OPERATION FOR THE TRANSPORTATION OF PROPERTY BY
MOTOR VEHICLE OVER A ROUTE OR WITHIN A TERRITORY, IF SUCH PERSON, OR
ANY SUCH CONTROLLING PERSON, CONTROLLED PERSON, OR PERSON UNDER COMMON
CONTROL, HOLDS A CERTIFICATE AS A COMMON CARRIER AUTHORIZING OPERATION
FOR THE TRANSPORTATION OF PROPERTY BY MOTOR VEHICLE OVER THE SAME ROUTE
OR WITHIN THE SAME TERRITORY." 

FN3  IN RE NEW YORK & NEW BRUNSWICK AUTO EXP.  CO., INC., COMMON
CARRIER APPLICATION, 23 M.C.C. 663, 671.  CF. IN RE BIGLEY BROTHERS,
INC., CONTRACT CARRIER APPLICATION, 4 M.C.C. 711; UNIVERSAL SERVICE,
INC.,  - PURCHASE - W.R. ARTHUR & CO., INC., 15 M.C.C. 247. 

FN4  THE ORDER READ IN PART AS FOLLOWS: 

"NOTICE IS HEREBY GIVEN THAT ALTHOUGH APPLICATION HEREIN IS FOR A
CERTIFICATE OR PERMIT ON FORM BMC 1, THE APPLICANT MUST ESTABLISH ALSO
THE CORPORATE RELATIONSHIP EXISTING BETWEEN THE APPLICANT HEREIN
MENTIONED AND THE ZIFFRIN TRUCK LINES, INC., (NO. MC 2510) AND IF SAID
APPLICANT AND THE ZIFFRIN TRUCK LINES, INC., ARE FOUND TO BE AFFILIATED
WITHIN THE MEANING OF SECTION 5(6) OF PART I, APPLICANT MUST ALSO
ESTABLISH THAT A PERMIT MAY BE HELD BY APPLICANT CONSISTENTLY WITH THE
PUBLIC INTEREST AND WITH THE POLICY DECLARED IN SECTION 202(A) OF THE
MOTOR CARRIER ACT, 1935, WITHIN THE MEANING AND CONTEMPLATION OF

FN5  OMNIBUS TRANSPORTATION LEGISLATION, HOUSE COMMITTEE PRINT, 76TH
CONG., 2D SESS. 

FN6  H. REP. NO. 2832, 76TH CONG., 3D SESS., P. 78. 
..END :





SECURITIES COMM'N V. CHENERY CORP., 318 U.S. 80 


NO. 254.  ARGUED DECEMBER 17, 18, 1942.  - DECIDED FEBRUARY 1, 1943.  -
75 U.S. APP. D.C. 374, 128 F.2D 303, REMANDED. 


BY AN ORDER OF THE SECURITIES AND EXCHANGE COMMISSION UNDER THE PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935, APPROVAL WAS GIVEN, OVER
OBJECTIONS, TO A PLAN FOR THE REORGANIZATION OF A REGISTERED HOLDING
COMPANY, WHEREBY PREFERRED STOCK WHICH HAD BEEN ACQUIRED BY OFFICERS
AND DIRECTORS OF THE COMPANY WHILE PLANS FOR ITS REORGANIZATION WERE
BEFORE THE COMMISSION, WOULD NOT BE CONVERTED INTO STOCK OF THE
REORGANIZED COMPANY, AS WOULD ALL OTHER PREFERRED STOCK, BUT WOULD BE
SURRENDERED AT COST PLUS INTEREST.  THE COMMISSION EXPLICITLY BASED ITS
ORDER ON ITS VIEW OF PRINCIPLES OF EQUITY JUDICIALLY ESTABLISHED. 
HOWEVER, THE COMMISSION DID NOT FIND, BUT ON THE CONTRARY DISAVOWED,
THAT THE SPECIFIC TRANSACTIONS SHOWED MISUSE BY THE OFFICERS AND
DIRECTORS OF THEIR POSITION AS REORGANIZATION MANAGERS, OR THAT AS SUCH
MANAGERS THEY TOOK ADVANTAGE OF THE CORPORATION, OTHER STOCKHOLDERS, OR
THE INVESTING PUBLIC.  HELD: 

1.  ON REVIEW UNDER SEC. 24(A) OF THE ACT, THE VALIDITY OF THE ORDER
OF THE COMMISSION MUST BE JUDGED ON THE GROUNDS UPON WHICH THE RECORD
DISCLOSES THAT ITS ACTION WAS BASED.  P. 87. 

2.  TESTED BY PRINCIPLES OF EQUITY JUDICIALLY ESTABLISHED, THE ORDER
OF THE COMMISSION CAN NOT BE SUSTAINED.  P. 88. 

3.  IT IS IMMATERIAL THAT THE COMMISSION MIGHT HAVE MADE FINDINGS
WHICH WOULD JUSTIFY ITS ORDER AS AN APPROPRIATE SAFEGUARD OF INTERESTS
WHICH THE ACT WAS DESIGNED TO PROTECT.  SUCH FINDINGS ARE ESSENTIAL TO
THE VALIDITY OF THE ORDER, AND HERE THERE IS NONE.  P. 94. 

4.  SUCH AN ADMINISTRATIVE ORDER CAN NOT BE UPHELD IF NOT SUSTAINABLE
BY THE GROUNDS UPON WHICH IT WAS BASED BY THE COMMISSION.  P. 95. 

SECURITIES AND EXCHANGE COMMISSION V. CHENERY CORPORATION ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 317 U.S. 609, TO REVIEW A JUDGMENT SETTING ASIDE AN ORDER
OF THE SECURITIES AND EXCHANGE COMMISSION UNDER THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS, WHO WERE OFFICERS, DIRECTORS, AND CONTROLLING
STOCKHOLDERS OF THE FEDERAL WATER SERVICE CORPORATION (HEREAFTER CALLED
FEDERAL), A HOLDING COMPANY REGISTERED UNDER THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, C. 687, 49 STAT. 803, 15 U.S.C. SEC. 79, BROUGHT
THIS PROCEEDING UNDER SEC. 24(A) OF THE ACT TO REVIEW AN ORDER MADE BY
THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 24, 1941, APPROVING
A PLAN OF REORGANIZATION FOR THE COMPANY.  UNDER THE COMMISSION'S
ORDER, PREFERRED STOCK ACQUIRED BY THE RESPONDENTS DURING THE PERIOD IN
WHICH SUCCESSIVE REORGANIZATION PLANS PROPOSED BY THE MANAGEMENT OF THE
COMPANY WERE BEFORE THE COMMISSION, WAS NOT PERMITTED TO PARTICIPATE IN
THE REORGANIZATION ON AN EQUAL FOOTING WITH ALL OTHER PREFERRED STOCK. 
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, WITH ONE JUDGE
DISSENTING, SET THE COMMISSION'S ORDER ASIDE, 128 F.2D 303, AND BECAUSE
THE QUESTION PRESENTED LOOMS LARGE IN THE ADMINISTRATION OF THE ACT, WE
BROUGHT THE CASE HERE. 

THE RELEVANT FACTS ARE AS FOLLOWS.  IN 1937, FEDERAL WAS A TYPICAL
PUBLIC UTILITY HOLDING COMPANY.  INCORPORATED IN DELAWARE, ITS ASSETS
CONSISTED OF SECURITIES OF SUBSIDIARY WATER, GAS, ELECTRIC, AND OTHER
COMPANIES IN THIRTEEN STATES AND ONE FOREIGN COUNTRY.  THE RESPONDENTS
CONTROLLED FEDERAL THROUGH THEIR CONTROL OF ITS PARENT, UTILITY
OPERATORS COMPANY, WHICH OWNED ALL OF THE OUTSTANDING SHARES OF
FEDERAL'S CLASS B COMMON STOCK, REPRESENTING THE CONTROLLING VOTING
POWER IN THE COMPANY.  ON NOVEMBER 8, 1937, WHEN FEDERAL REGISTERED AS
A HOLDING COMPANY UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935,
ITS MANAGEMENT FILED A PLAN FOR REORGANIZATION UNDER SECS. 7 AND 11 OF
THE ACT, THE RELEVANT PORTIONS OF WHICH ARE COPIED IN THE MARGIN.  FN1
THIS PLAN, AS WELL AS TWO OTHER PLANS LATER SUBMITTED BY FEDERAL,
PROVIDED FOR PARTICIPATION BY CLASS B STOCKHOLDERS IN THE EQUITY OF THE
PROPOSED REORGANIZED COMPANY.  THIS FEATURE OF THE PLANS WAS
UNACCEPTABLE TO THE COMMISSION, AND ALL WERE ULTIMATELY WITHDRAWN.  ON
MARCH 30, 1940, A FOURTH PLAN WAS FILED BY FEDERAL.  THIS PLAN,
PROPOSING A MERGER OF FEDERAL, UTILITY OPERATORS COMPANY, AND FEDERAL
WATER AND GAS CORPORATION, A WHOLLY-OWNED INACTIVE SUBSIDIARY OF
FEDERAL, CONTAINED NO PROVISION FOR PARTICIPATION BY THE CLASS B
STOCK.  INSTEAD, THAT CLASS OF STOCK WAS TO BE SURRENDERED FOR
CANCELLATION, AND THE PREFERRED AND CLASS A COMMON STOCK OF FEDERAL
WERE TO BE CONVERTED INTO COMMON STOCK OF THE NEW CORPORATION.  AS THE
COMMISSION POINTED OUT IN ITS ANALYSIS OF THE PROPOSED PLAN, "EXCEPT
FOR THE 5.3% OF NEW COMMON ALLOCATED TO THE PRESENT HOLDERS OF CLASS A
STOCK, SUBSTANTIALLY ALL OF THE EQUITY OF THE REORGANIZED COMPANY WILL
BE GIVEN TO THE PRESENT PREFERRED STOCKHOLDERS." 

DURING THE PERIOD FROM NOVEMBER 8, 1937, TO JUNE 30, 1940, WHILE THE
SUCCESSIVE REORGANIZATION PLANS WERE BEFORE THE COMMISSION, THE
RESPONDENTS PURCHASES A TOTAL OF 12,407 SHARES OF FEDERAL'S PREFERRED
STOCK.  (THE TOTAL NUMBER OF OUTSTANDING SHARES OF FEDERAL'S PREFERRED
STOCK WAS 159,269.)  THESE PURCHASES WERE MADE ON THE OVER-THE-COUNTER
MARKET THROUGH BROKERS AT PRICES LOWER THAN THE BOOK VALUE OF THE
COMMON STOCK OF THE NEW CORPORATION INTO WHICH THE PREFERRED STOCK
WOULD HAVE BEEN CONVERTED UNDER THE PROPOSED PLAN.  IF THIS FEATURE OF
THE PLAN HAD BEEN APPROVED BY THE COMMISSION, THE RESPONDENTS THROUGH
THEIR HOLDINGS OF FEDERAL'S PREFERRED STOCK WOULD HAVE ACQUIRED MORE
THAN 10 PER CENT OF THE COMMON STOCK OF THE NEW CORPORATION.  THE
RESPONDENTS FRANKLY ADMITTED THAT THEIR PURPOSE IN BUYING THE PREFERRED
STOCK WAS TO PROTECT THEIR INTERESTS IN THE COMPANY. 

IN ASCERTAINING WHETHER THE TERMS OF ISSUANCE OF THE NEW COMMON STOCK
WERE "FAIR AND EQUITABLE" OR "DETRIMENTAL TO THE INTERESTS OF
INVESTORS" WITHIN SEC. 7 OF THE ACT, THE COMMISSION FOUND THAT IT COULD
NOT APPROVE THE PROPOSED PLAN SO LONG AS THE PREFERRED STOCK ACQUIRED
BY THE RESPONDENTS WOULD BE PERMITTED TO SHARE ON A PARITY WITH OTHER
PREFERRED STOCK.  THE COMMISSION DID NOT FIND FRAUD OR LACK OF
DISCLOSURE, BUT IT CONCLUDED THAT THE RESPONDENTS, AS FEDERAL'S
MANAGERS, WERE FIDUCIARIES AND HENCE UNDER A "DUTY OF FAIR DEALING" NOT
TO TRADE IN THE SECURITIES OF THE CORPORATION WHILE PLANS FOR ITS
REORGANIZATION WERE BEFORE THE COMMISSION.  IT RECOMMENDED THAT A
FORMULA BE DEVISED UNDER WHICH THE RESPONDENTS' PREFERRED STOCK WOULD
PARTICIPATE ONLY TO THE EXTENT OF THE PURCHASE PRICES PAID PLUS
ACCUMULATED DIVIDENDS SINCE THE DATES OF SUCH PURCHASES.  ACCORDINGLY,
THE PLAN WAS THEREAFTER AMENDED TO PROVIDE THAT THE PREFERRED STOCK
ACQUIRED BY THE RESPONDENTS, UNLIKE THE PREFERRED STOCK HELD BY OTHERS,
WOULD NOT BE CONVERTED INTO STOCK OF THE REORGANIZED COMPANY, BUT COULD
ONLY BE SURRENDERED AT COST PLUS 4 PER CENT INTEREST.  THE COMMISSION,
OVER THE RESPONDENTS' OBJECTIONS, APPROVED THE PLAN AS THUS AMENDED,
AND IT IS THIS ORDER WHICH IS NOW UNDER REVIEW. 

WE COMPLETELY AGREE WITH THE COMMISSION THAT OFFICERS AND DIRECTORS
WHO MANAGE A HOLDING COMPANY IN PROCESS OF REORGANIZATION UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 OCCUPY POSITIONS OF TRUST. 
WE REJECT A LAX VIEW OF FIDUCIARY OBLIGATIONS AND INSIST UPON THEIR
SCRUPULOUS OBSERVANCE.  SEE WORMLEY V. WORMLEY, 8 WHEAT.  421, 441;
SOUTHERN PACIFIC CO. V. BOGERT, 250 U.S. 483, 487-88; AND SEE STONE,
THE PUBLIC INFLUENCE OF THE BAR, 48 HARV. L. REV. 1, 8-9.  BUT TO SAY
THAT A MAN IS A FIDUCIARY ONLY BEGINS ANALYSIS; IT GIVES DIRECTION TO
FURTHER INQUIRY.  TO WHOM IS HE A FIDUCIARY?  WHAT OBLIGATIONS DOES HE
OWE AS A FIDUCIARY?  IN WHAT RESPECT HAS HE FAILED TO DISCHARGE THESE
OBLIGATIONS?  AND WHAT ARE THE CONSEQUENCES OF HIS DEVIATION FROM
DUTY? 

THE COMMISSION DID NOT FIND THAT THE RESPONDENTS AS MANAGERS OF
FEDERAL ACTED COVERTLY OR TRADED ON INSIDE KNOWLEDGE, OR THAT THEIR
POSITION AS REORGANIZATION MANAGERS ENABLED THEM TO PURCHASE THE
PREFERRED STOCK AT PRICES LOWER THAN THEY WOULD OTHERWISE HAVE HAD TO
PAY, OR THAT THEIR ACQUISITION OF THE STOCK IN ANY WAY PREJUDICED THE
INTERESTS OF THE CORPORATION OR ITS STOCKHOLDERS.  TO BE SURE, THE NEW
STOCK INTO WHICH THE RESPONDENTS' PREFERRED STOCK WOULD BE CONVERTED
UNDER THE PLAN OF REORGANIZATION WOULD HAVE A BOOK VALUE - WHICH MAY OR
MAY NOT REPRESENT MARKET VALUE - CONSIDERABLY GREATER THAN THE PRICES
PAID FOR THE PREFERRED STOCK.  BUT THAT WOULD EQUALLY BE TRUE OF
PURCHASES OF PREFERRED STOCK MADE BY OTHER INVESTORS.  THE RESPONDENTS,
THE COMMISSION TELLS US, ACQUIRED THEIR STOCK AS THE OUTSIDE WORLD DID,
AND UPON NO BETTER TERMS.  THE COMMISSION DEALT WITH THIS AS A SPECIFIC
CASE, AND NOT AS THE APPLICATION OF A GENERAL RULE FORMULATING RULES OF
CONDUCT FOR REORGANIZATION MANAGERS.  CONSEQUENTLY, IT IS A VITAL
CONSIDERATION THAT THE COMMISSION CONCEDED THAT THE RESPONDENTS DID NOT
ACQUIRE THEIR STOCK THROUGH ANY FAVORING CIRCUMSTANCES.  IN ITS OWN
WORDS, "HONESTY, FULL DISCLOSURE, AND PURCHASE AT A FAIR PRICE"
CHARACTERIZED THE TRANSACTIONS.  THE COMMISSION DID NOT SUGGEST THAT,
AS A RESULT OF THEIR PURCHASES OF PREFERRED STOCK, THE RESPONDENTS
WOULD BE UNJUSTLY ENRICHED.  ON THE CONTRARY, THE QUESTION BEFORE THE
COMMISSION WAS WHETHER THE RESPONDENTS, SIMPLY BECAUSE THEY WERE
REORGANIZATION MANAGERS, SHOULD BE DENIED THE BENEFITS TO BE RECEIVED
BY THE 6,000 OTHER PREFERRED STOCKHOLDERS.  SOME TECHNICAL RULE OF LAW
MUST HAVE MOVED THE COMMISSION TO SINGLE OUT THE RESPONDENTS AND DENY
THEIR PREFERRED STOCK THE RIGHT TO PARTICIPATE EQUALLY IN THE
REORGANIZATION.  TO ASCERTAIN THE PRECISE BASIS OF ITS DETERMINATION,
WE MUST LOOK TO THE COMMISSION'S OPINION. 

THE COMMISSION STATED THAT "IN THE PROCESS OF FORMULATION OF A
'VOLUNTARY' REORGANIZATION PLAN, THE MANAGEMENT OF A CORPORATION
OCCUPIES A FIDUCIARY POSITION TOWARD ALL OF THE SECURITY HOLDERS TO BE
AFFECTED, AND THAT IT IS SUBJECTED TO THE SAME STANDARDS AS OTHER
FIDUCIARIES WITH RESPECT TO DEALING WITH THE PROPERTY WHICH IS THE
SUBJECT MATTER OF THE TRUST."  APPLYING BY ANALOGY THE RESTRICTIONS
IMPOSED ON TRUSTEES IN TRAFFICKING IN PROPERTY HELD BY THEM IN TRUST
FOR OTHERS, MICHOUD V. GIROD, 4 HOW.  503, 557, THE COMMISSION RULED
THAT EVEN THOUGH THE MANAGEMENT DOES NOT HOLD THE STOCK OF THE
CORPORATION IN TRUST FOR THE STOCKHOLDERS, NEVERTHELESS THE "DUTY OF
FAIR DEALING" WHICH THE MANAGEMENT OWES TO THE STOCKHOLDERS IS VIOLATED
IF THOSE IN CONTROL OF THE CORPORATION PURCHASE ITS STOCK, EVEN AT A
FAIR PRICE, OPENLY AND WITHOUT FRAUD.  THE COMMISSION CONCLUDED THAT
"HONESTY, FULL DISCLOSURE, AND PURCHASE AT A FAIR PRICE DO NOT TAKE THE
CASE OUTSIDE THE RULE." 

IN REACHING THIS RESULT THE COMMISSION STATED THAT IT WAS MERELY
APPLYING "THE BROAD EQUITABLE PRINCIPLES ENUNCIATED IN THE CASES
HERETOFORE CITED," NAMELY, PEPPER V. LITTON, 308 U.S. 295; MICHOUD V.
GIROD, 4 HOW.  503, 557; MAGRUDER V. DRURY, 235 U.S. 106, 119-20, AND
MEINHARD V. SALMON, 249 N.Y. 458, 164 N.E. 545.  ITS OPINION PLAINLY
SHOWS THAT THE COMMISSION PURPORTED TO BE ACTING ONLY AS IT ASSUMED A
COURT OF EQUITY WOULD HAVE ACTED IN A SIMILAR CASE.  SINCE THE DECISION
OF THE COMMISSION WAS EXPLICITLY BASED UPON THE APPLICABILITY OF
PRINCIPLES OF EQUITY ANNOUNCED BY COURTS, ITS VALIDITY MUST LIKEWISE BE
JUDGED ON THAT BASIS.  THE GROUNDS UPON WHICH AN ADMINISTRATIVE ORDER
MUST BE JUDGED ARE THOSE UPON WHICH THE RECORD DISCLOSES THAT ITS
ACTION WAS BASED. 

IN CONFINING OUR REVIEW TO A JUDGMENT UPON THE VALIDITY OF THE
GROUNDS UPON WHICH THE COMMISSION ITSELF BASED ITS ACTION, WE DO NOT
DISTURB THE SETTLED RULE THAT, IN REVIEWING THE DECISION OF A LOWER
COURT, IT MUST BE AFFIRMED IF THE RESULT IS CORRECT "ALTHOUGH THE LOWER
COURT RELIED UPON A WRONG GROUND OR GAVE A WRONG REASON."  HELVERING V.
GOWRAN, 302 U.S. 238, 245.  THE REASON FOR THIS RULE IS OBVIOUS.  IT
WOULD BE WASTEFUL TO SEND A CASE BACK TO A LOWER COURT TO REINSTATE A
DECISION WHICH IT HAD ALREADY MADE BUT WHICH THE APPELLATE COURT
CONCLUDED SHOULD PROPERLY BE BASED ON ANOTHER GROUND WITHIN THE POWER
OF THE APPELLATE COURT TO FORMULATE.  BUT IT IS ALSO FAMILIAR APPELLATE
PROCEDURE THAT WHERE THE CORRECTNESS OF THE LOWER COURT'S DECISION
DEPENDS UPON A DETERMINATION OF FACT WHICH ONLY A JURY COULD MAKE BUT
WHICH HAS NOT BEEN MADE, THE APPELLATE COURT CANNOT TAKE THE PLACE OF
THE JURY.  LIKE CONSIDERATIONS GOVERN REVIEW OF ADMINISTRATIVE ORDERS. 
IF AN ORDER IS VALID ONLY AS A DETERMINATION OF POLICY OR JUDGMENT
WHICH THE AGENCY ALONE IS AUTHORIZED TO MAKE AND WHICH IT HAS NOT MADE,
A JUDICIAL JUDGMENT CANNOT BE MADE TO DO SERVICE FOR AN ADMINISTRATIVE
JUDGMENT.  FOR PURPOSES OF AFFIRMING NO LESS THAN REVERSING ITS ORDERS,
AN APPELLATE COURT CANNOT INTRUDE UPON THE DOMAIN WHICH CONGRESS HAS
EXCLUSIVELY ENTRUSTED TO AN ADMINISTRATIVE AGENCY. 

IF, THEREFORE, THE RULE APPLIED BY THE COMMISSION IS TO BE JUDGED
SOLELY ON THE BASIS OF ITS ADHERENCE TO PRINCIPLES OF EQUITY DERIVED
FROM JUDICIAL DECISIONS, ITS ORDER PLAINLY CANNOT STAND.  AS THE
COMMISSION CONCEDES HERE, THE COURTS DO NOT IMPOSE UPON OFFICERS AND
DIRECTORS OF A CORPORATION ANY FIDUCIARY DUTY TO ITS STOCKHOLDERS WHICH
PRECLUDES THEM, MERELY BECAUSE THEY ARE OFFICERS AND DIRECTORS, FROM
BUYING AND SELLING THE CORPORATION'S STOCK.  FN2  THE CASES UPON WHICH
THE COMMISSION RELIED DO NOT ESTABLISH PRINCIPLES OF LAW AND EQUITY
WHICH IN THEMSELVES ARE SUFFICIENT TO SUSTAIN ITS ORDER.  THE ONLY
QUESTION IN PEPPER V. LITTON, 308 U.S. 295, WAS WHETHER CLAIMS OBTAINED
BY THE CONTROLLING STOCKHOLDERS OF A BANKRUPT CORPORATION WERE TO BE
TREATED EQUALLY WITH THE CLAIMS OF OTHER CREDITORS WHERE THE EVIDENCE
REVEALED "A SCHEME TO DEFRAUD CREDITORS REMINISCENT OF SOME OF THE
EVILS WITH WHICH 13 ELIZ.  C. 5 WAS DESIGNED TO COPE," 308 U.S. AT
296.  ANOTHER CASE RELIED UPON, WOODS V. CITY BANK CO., 312 U.S. 262,
HELD ONLY THAT A BANKRUPTCY COURT, IN THE EXERCISE OF ITS PLENARY POWER
TO REVIEW FEES AND EXPENSES IN CONNECTION WITH A REORGANIZATION
PROCEEDING UNDER CHAPTER X OF THE CHANDLER ACT, 52 STAT. 840, COULD
DENY COMPENSATION TO PROTECTIVE COMMITTEES REPRESENTING CONFLICTING
INTERESTS.  MICHOUD V. GIROD, 4 HOW.  503, AND MAGRUDER V. DRURY, 235
U.S. 106, DEALT WITH THE SPECIFIC OBLIGATIONS OF EXPRESS TRUSTEES AND
NOT WITH THOSE OF PERSONS IN CONTROL OF A CORPORATE ENTERPRISE TOWARD
ITS STOCKHOLDERS. 

DETERMINATION OF WHAT IS "FAIR AND EQUITABLE" CALLS FOR THE
APPLICATION OF ETHICAL STANDARDS TO PARTICULAR SETS OF FACTS.  BUT
THESE STANDARDS ARE NOT STATIC.  IN EVOLVING STANDARDS OF FAIRNESS AND
EQUITY, THE COMMISSION IS NOT BOUND BY SETTLED JUDICIAL PRECEDENTS. 
CONGRESS CERTAINLY DID NOT MEAN TO PRECLUDE THE FORMULATION BY THE
COMMISSION OF STANDARDS EXPRESSING A MORE SENSITIVE REGARD FOR WHAT IS
RIGHT AND WHAT IS WRONG THAN THOSE PREVALENT AT THE TIME THE PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935 BECAME LAW.  BUT THE COMMISSION DID
NOT IN THIS CASE PROFFER NEW STANDARDS REFLECTING THE EXPERIENCE GAINED
BY IT IN EFFECTUATING THE LEGISLATIVE POLICY.  ON THE CONTRARY, IT
EXPLICITLY DISAVOWED ANY PURPOSE OF GOING BEYOND THOSE WHICH THE COURTS
HAD THERETOFORE RECOGNIZED.  SINCE THE COMMISSION PROFESSED TO DECIDE
THE CASE BEFORE IT ACCORDING TO SETTLED JUDICIAL DOCTRINES, ITS ACTION
MUST BE JUDGED BY THE STANDARDS WHICH THE COMMISSION ITSELF INVOKED. 
AND JUDGED BY THOSE STANDARDS, I.E., THOSE WHICH WOULD BE ENFORCED BY A
COURT OF EQUITY, WE MUST CONCLUDE THAT THE COMMISSION WAS IN ERROR IN
DEEMING ITS ACTION CONTROLLED BY ESTABLISHED JUDICIAL PRINCIPLES. 
BUT THE COMMISSION URGES HERE THAT THE ORDER SHOULD NEVERTHELESS BE
SUSTAINED BECAUSE "THE EFFECT OF TRADING BY MANAGEMENT IS NOT MEASURED
BY THE FAIRNESS OF INDIVIDUAL TRANSACTIONS BETWEEN BUYER AND SELLER,
BUT BY ITS RELATION TO THE TIMING AND DYNAMICS OF THE REORGANIZATION
WHICH THE MANAGEMENT ITSELF INITIATES AND SO LARGELY CONTROLS."  ITS
ARGUMENT LAYS STRESS UPON THE "STRATEGIC POSITION ENJOYED BY THE
MANAGEMENT IN THIS TYPE OF REORGANIZATION PROCEEDING AND THE VESTING IN
IT OF STATUTORY POWERS AVAILABLE TO NO OTHER REPRESENTATIVE OF SECURITY
HOLDERS."  IT CONTENDS THAT THESE CONSIDERATIONS WARRANT THE STERN RULE
APPLIED IN THIS CASE SINCE THE COMMISSION "HAS DEALT EXTENSIVELY WITH
CORPORATE REORGANIZATIONS, BOTH UNDER THE ACT, AND OTHER STATUTES
ENTRUSTED TO IT," AND "HAS, IN ADDITION, EXHAUSTIVELY STUDIED
PROTECTIVE AND REORGANIZATION COMMITTEES," AND THAT THE SITUATION WAS
THEREFORE "PECULIARLY WITHIN THE COMMISSION'S SPECIAL ADMINISTRATIVE
COMPETENCE." 

IN DETERMINING WHETHER TO APPROVE THE PLAN OF REORGANIZATION PROPOSED
BY FEDERAL'S MANAGEMENT, THE COMMISSION COULD INQUIRE, UNDER SEC.
7(D)(6) AND (E) OF THE ACT, WHETHER THE PROPOSAL WAS "DETRIMENTAL TO
THE PUBLIC INTEREST OR THE INTEREST OF INVESTORS OR CONSUMERS," AND,
UNDER SEC. 11(E), WHETHER IT WAS "FAIR AND EQUITABLE."  THAT THESE
PROVISIONS WERE MEANT TO CONFER UPON THE COMMISSION BROAD POWERS FOR
THE PROTECTION OF THE PUBLIC PLAINLY APPEARS FROM THE REPORTS OF THE
CONGRESSIONAL COMMITTEES IN CHARGE OF THE LEGISLATION.  THE PROVISIONS
OF SEC. 7 WERE "DESIGNED TO GIVE ADEQUATE PROTECTION TO INVESTORS AND
CONSUMERS ...  AND ARE IN ACCORD WITH THE UNDERLYING PURPOSE OF THE
LEGISLATION TO GIVE TO INVESTORS AND CONSUMERS FULL PROTECTION AGAINST
THE DELETERIOUS PRACTICES WHICH HAVE CHARACTERIZED CERTAIN HOLDING
COMPANY FINANCE IN THE PAST."  SEN. REP. NO. 621, 74TH CONG., 1ST
SESS., P. 28.  SIMILARLY, THE AUTHORITY GIVEN THE COMMISSION BY SEC. 11
WAS INTENDED TO BE RESPONSIVE TO THE DEMANDS OF THE PARTICULAR
SITUATIONS WITH WHICH THE COMMISSION WOULD BE FACED:  "UNDER THESE
SUBSECTIONS (11(D), (E), AND (F)), COMMISSION APPROVAL OF
REORGANIZATION PLANS AND SUPERVISION OF THE CONDITIONS UNDER WHICH SUCH
PLANS ARE PREPARED WILL MAKE IT IMPOSSIBLE FOR A GROUP OF FAVORED
INSIDERS TO CONTINUE THEIR DOMINATION OVER INARTICULATE AND HELPLESS
MINORITIES, OR EVEN AS IS OFTEN THE CASE, MAJORITIES  ...  "  ID., P.
33. 

IN VIEW OF THIS LEGISLATIVE HISTORY, REFLECTING THE RANGE OF PUBLIC
INTERESTS COMMITTED TO THE CARE OF THE COMMISSION, SEC. 17(A) AND (B),
WHICH REQUIRES OFFICERS AND DIRECTORS OF ANY HOLDING COMPANY REGISTERED
UNDER THE ACT TO FILE STATEMENTS OF THEIR SECURITY HOLDINGS IN THE
COMPANY AND PROVIDES THAT PROFITS MADE FROM DEALING IN SUCH SECURITIES
WITHIN ANY PERIOD OF LESS THAN SIX MONTHS SHALL INURE TO THE BENEFIT OF
THE COMPANY, CANNOT BE REGARDED AS A LIMITATION UPON THE POWER OF THE
COMMISSION TO DEAL WITH OTHER SITUATIONS IN WHICH OFFICERS AND
DIRECTORS HAVE FAILED TO MEASURE UP TO THE STANDARDS OF CONDUCT IMPOSED
UPON THEM BY THE ACT.  THE ACT VESTS IN THE OFFICERS AND DIRECTORS OF A
HOLDING COMPANY REGISTERED UNDER THE ACT BROAD POWERS AS
REPRESENTATIVES OF ALL THE STOCKHOLDERS.  BESIDES THE COMMISSION, ONLY
THE MANAGEMENT CAN INITIATE A PROCEEDING BEFORE THE COMMISSION TO
SIMPLIFY THE CORPORATE STRUCTURE AND TO EFFECT A FAIR AND EQUITABLE
DISTRIBUTION OF VOTING POWER AMONG SECURITY HOLDERS.  ONLY THE
MANAGEMENT CAN AMEND A PLAN UNDER SECS. 7 AND 11(E), AND THIS IT MAY DO
AT ANY TIME; ONLY THE MANAGEMENT CAN WITHDRAW THE PLAN, AND THIS TOO IT
MAY DO AT WILL; AND EVEN AFTER THE COMMISSION HAS APPROVED A PLAN, IT
CANNOT BE CARRIED OUT WITHOUT THE CONSENT OF THE MANAGEMENT. 

NOTWITHSTANDING SEC. 17(A) AND (B), THEREFORE, THE COMMISSION COULD
TAKE APPROPRIATE ACTION FOR THE CORRECTION OF REORGANIZATION ABUSES
FOUND TO BE "DETRIMENTAL TO THE PUBLIC INTEREST OR THE INTEREST OF
INVESTORS OR CONSUMERS."  IT WAS ENTITLED TO TAKE INTO ACCOUNT THOSE
MORE SUBTLE FACTORS IN THE MARKETING OF UTILITY COMPANY SECURITIES THAT
GAVE RISE TO THE VERY GRAVE EVILS WHICH THE PUBLIC UTILITY HOLDING ACT
OF 1935 WAS DESIGNED TO CORRECT.  SEE THE CONCURRING OPINION OF JUDGE
LEARNED HAND IN MORGAN STANLEY & CO. V. SECURITIES & EXCHANGE
COMMISSION, 126 F.2D 325, 332. 

BUT THE DIFFICULTY REMAINS THAT THE CONSIDERATIONS URGED HERE IN
SUPPORT OF THE COMMISSION'S ORDER WERE NOT THOSE UPON WHICH ITS ACTION
WAS BASED.  THE COMMISSION DID NOT RELY UPON "ITS SPECIAL
ADMINISTRATIVE COMPETENCE"; IT FORMULATED NO JUDGMENT UPON THE
REQUIREMENTS OF THE "PUBLIC INTEREST OR THE INTEREST OF INVESTORS OR
CONSUMERS" IN THE SITUATION BEFORE IT.  THROUGH ITS PREOCCUPATION WITH
THE SPECIAL PROBLEMS OF UTILITY REORGANIZATIONS THE COMMISSION
ACCUMULATES AN EXPERIENCE AND INSIGHT DENIED TO OTHERS.  HAD THE
COMMISSION, ACTING UPON ITS EXPERIENCE AND PECULIAR COMPETENCE,
PROMULGATED A GENERAL RULE OF WHICH ITS ORDER HERE WAS A PARTICULAR
APPLICATION, THE PROBLEM FOR OUR CONSIDERATION WOULD BE VERY
DIFFERENT.  WHETHER AND TO WHAT EXTENT DIRECTORS OR OFFICERS SHOULD BE
PROHIBITED FROM BUYING OR SELLING STOCK OF THE CORPORATION DURING ITS
REORGANIZATION, PRESENTS PROBLEMS OF POLICY FOR THE JUDGMENT OF
CONGRESS OR OF THE BODY TO WHICH IT HAS DELEGATED POWER TO DEAL WITH
THE MATTER.  ABUSE OF CORPORATE POSITION, INFLUENCE, AND ACCESS TO
INFORMATION MAY RAISE QUESTIONS SO SUBTLE THAT THE LAW CAN DEAL WITH
THEM EFFECTIVELY ONLY BY PROHIBITIONS NOT CONCERNED WITH THE FAIRNESS
OF A PARTICULAR TRANSACTION.  BUT BEFORE TRANSACTIONS OTHERWISE LEGAL
CAN BE OUTLAWED OR DENIED THEIR USUAL BUSINESS CONSEQUENCES, THEY MUST
FALL UNDER THE BAN OF SOME STANDARDS OF CONDUCT PRESCRIBED BY AN AGENCY
OF GOVERNMENT AUTHORIZED TO PRESCRIBE SUCH STANDARDS - EITHER THE
COURTS OR CONGRESS OR AN AGENCY TO WHICH CONGRESS HAS DELEGATED ITS
AUTHORITY.  CONGRESS ITSELF DID NOT PROSCRIBE THE RESPONDENTS'
PURCHASES OF PREFERRED STOCK IN FEDERAL.  ESTABLISHED JUDICIAL
DOCTRINES DO NOT CONDEMN THESE TRANSACTIONS.  NOR HAS THE COMMISSION,
ACTING UNDER THE RULE-MAKING POWERS DELEGATED TO IT BY SEC. 11(E),
PROMULGATED NEW GENERAL STANDARDS OF CONDUCT.  IT PURPORTED MERELY TO
BE APPLYING AN EXISTING JUDGE-MADE RULE OF EQUITY.  THE COMMISSION'S
DETERMINATION CAN STAND, THEREFORE, ONLY IF IT FOUND THAT THE SPECIFIC
TRANSACTIONS UNDER SCRUTINY SHOWED MISUSE BY THE RESPONDENTS OF THEIR
POSITION AS REORGANIZATION MANAGERS, IN THAT AS SUCH MANAGERS THEY TOOK
ADVANTAGE OF THE CORPORATION OR THE OTHER STOCKHOLDERS OR THE INVESTING
PUBLIC.  THE RECORD IS UTTERLY BARREN OF ANY SUCH SHOWING.  INDEED,
SUCH A CLAIM AGAINST THE RESPONDENTS WAS EXPLICITLY DISAVOWED BY THE
COMMISSION. 

IN VIEW OF THE CONDITIONS IMPOSED BY THE COMMISSION IN APPROVING THE
PLAN, IT IS CLEAR THAT THE RESPONDENTS WERE CHARGED WITH VIOLATION OF A
POSITIVE COMMAND OF LAW RATHER THAN WITH ANY MORAL WRONG.  IF THERE HAS
BEEN A WRONG, IT WOULD BE AGAINST THE STOCKHOLDERS FROM WHOM THEY
PURCHASED THE PREFERRED STOCK AT LESS THAN THE BOOK VALUE OF THE NEW
STOCK - WHICH, AS WE HAVE ALREADY SAID, MAY OR MAY NOT BE ITS REAL
VALUE.  BUT THE COMMISSION DID NOT REGARD SUCH STOCKHOLDERS AS
BENEFICIARIES OF THE RESPONDENTS'"TRUST" AND HENCE ENTITLED TO
RESTITUTION.  THE COMMISSION DID NOT UNDO THE PURCHASES DEEMED BY IT TO
HAVE BEEN MADE BY THE RESPONDENTS IN VIOLATION OF THEIR FIDUCIARY
OBLIGATIONS.  INSTEAD, THE COMMISSION CONFIRMED THE PURCHASES AND
ORDERED THAT THE STOCK BE SURRENDERED TO THE CORPORATION. 

JUDGED, THEREFORE, AS A DETERMINATION BASED UPON JUDGEMADE RULES OF
EQUITY, THE COMMISSION'S ORDER CANNOT BE UPHELD.  ITS ACTION MUST BE
MEASURED BY WHAT THE COMMISSION DID, NOT BY WHAT IT MIGHT HAVE DONE. 
IT IS NOT FOR US TO DETERMINE INDEPENDENTLY WHAT IS "DETRIMENTAL TO THE
PUBLIC INTEREST OR THE INTEREST OF INVESTORS OR CONSUMERS" OR "FAIR OR
EQUITABLE" WITHIN THE MEANING OF SECS. 7 AND 11 OF THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935.  THE COMMISSION'S ACTION CANNOT BE UPHELD
MERELY BECAUSE FINDINGS MIGHT HAVE BEEN MADE AND CONSIDERATIONS
DISCLOSED WHICH WOULD JUSTIFY ITS ORDER AS AN APPROPRIATE SAFEGUARD FOR
THE INTERESTS PROTECTED BY THE ACT.  THERE MUST BE SUCH A RESPONSIBLE
FINDING.  COMPARE UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294
U.S. 499, 510-11.  THERE IS NO SUCH FINDING HERE. 

CONGRESS HAS SEEN FIT TO SUBJECT TO JUDICIAL REVIEW SUCH ORDERS OF
THE SECURITIES AND EXCHANGE COMMISSION AS THE ONE BEFORE US.  THAT THE
SCOPE OF SUCH REVIEW IS NARROWLY CIRCUMSCRIBED IS BESIDE THE POINT. 
FOR THE COURTS CANNOT EXERCISE THEIR DUTY OF REVIEW UNLESS THEY ARE
ADVISED OF THE CONSIDERATIONS UNDERLYING THE ACTION UNDER REVIEW.  IF
THE ACTION RESTS UPON AN ADMINISTRATIVE DETERMINATION - AN EXERCISE OF
JUDGMENT IN AN AREA WHICH CONGRESS HAS ENTRUSTED TO THE AGENCY - OF
COURSE IT MUST NOT BE SET ASIDE BECAUSE THE REVIEWING COURT MIGHT HAVE
MADE A DIFFERENT DETERMINATION WERE IT EMPOWERED TO DO SO.  BUT IF THE
ACTION IS BASED UPON A DETERMINATION OF LAW AS TO WHICH THE REVIEWING
AUTHORITY OF THE COURTS DOES COME INTO PLAY, AN ORDER MAY NOT STAND IF
THE AGENCY HAS MISCONCEIVED THE LAW.  IN EITHER EVENT THE ORDERLY
FUNCTIONING OF THE PROCESS OF REVIEW REQUIRES THAT THE GROUNDS UPON
WHICH THE ADMINISTRATIVE AGENCY ACTED BE CLEARLY DISCLOSED AND
ADEQUATELY SUSTAINED.  "THE ADMINISTRATIVE PROCESS WILL BEST BE
VINDICATED BY CLARITY IN ITS EXERCISE."  PHELPS DODGE CORP. V. LABOR
BOARD, 313 U.S. 177, 197.  WHAT WAS SAID IN THAT CASE IS EQUALLY
APPLICABLE HERE:  "WE DO NOT INTEND TO ENTER THE PROVINCE THAT BELONGS
TO THE BOARD, NOR DO WE DO SO.  ALL WE ASK OF THE BOARD IS TO GIVE
CLEAR INDICATION THAT IT HAS EXERCISED THE DISCRETION WITH WHICH
CONGRESS HAS EMPOWERED IT.  THIS IS TO AFFIRM MOST EMPHATICALLY THE
AUTHORITY OF THE BOARD."  IBID.  COMPARE UNITED STATES V. CAROLINA
CARRIERS CORP., 315 U.S. 475, 488-90.  IN FINDING THAT THE COMMISSION'S
ORDER CANNOT BE SUSTAINED, WE ARE NOT IMPOSING ANY TRAMMELS ON ITS
POWERS.  WE ARE NOT ENFORCING FORMAL REQUIREMENTS.  WE ARE NOT
SUGGESTING THAT THE COMMISSION MUST JUSTIFY ITS EXERCISE OF
ADMINISTRATIVE DISCRETION IN ANY PARTICULAR MANNER OR WITH ARTISTIC
REFINEMENT.  WE ARE NOT STICKING IN THE BARK OF WORDS.  WE MERELY HOLD
THAT AN ADMINISTRATIVE ORDER CANNOT BE UPHELD UNLESS THE GROUNDS UPON
WHICH THE AGENCY ACTED IN EXERCISING ITS POWERS WERE THOSE UPON WHICH
ITS ACTION CAN BE SUSTAINED. 

THE CAUSE SHOULD THEREFORE BE REMANDED TO THE COURT OF APPEALS WITH
DIRECTIONS TO REMAND TO THE COMMISSION FOR SUCH FURTHER PROCEEDINGS,
NOT INCONSISTENT WITH THIS OPINION, AS MAY BE APPROPRIATE.  SO
ORDERED. 

FN1  "SEC.  7.  (A)  A REGISTERED HOLDING COMPANY OR SUBSIDIARY
COMPANY THEREOF MAY FILE A DECLARATION WITH THE COMMISSION, REGARDING
ANY OF THE ACTS ENUMERATED IN SUBSECTION (A) OF SECTION 6, IN SUCH FORM
AS THE COMMISSION MAY BY RULES AND REGULATIONS PRESCRIBE AS NECESSARY
OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF
INVESTORS OR CONSUMERS.  SUCH DECLARATION SHALL INCLUDE - 

"(1)  SUCH OF THE INFORMATION AND DOCUMENTS WHICH ARE REQUIRED TO BE
FILED IN ORDER TO REGISTER A SECURITY UNDER SECTION 7 OF THE SECURITIES
ACT OF 1933, AS AMENDED, AS THE COMMISSION MAY BY RULES AND REGULATIONS
OR ORDER PRESCRIBE AS NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST
OR FOR THE PROTECTION OF INVESTORS OR CONSUMERS; AND 

"(2)  SUCH ADDITIONAL INFORMATION, IN SUCH FORM AND DETAIL, AND SUCH
DOCUMENTS REGARDING THE DECLARANT OR ANY ASSOCIATE COMPANY THEREOF, THE
PARTICULAR SECURITY AND COMPLIANCE WITH SUCH STATE LAWS AS MAY APPLY TO
THE ACT IN QUESTION AS THE COMMISSION MAY BY RULES AND REGULATIONS OR
ORDER PRESCRIBE AS NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR
FOR THE PROTECTION OF INVESTORS OR CONSUMERS.  ... 

"(D)  IF THE REQUIREMENTS OF SUBSECTIONS (C) AND (G) ARE SATISFIED,
THE COMMISSION SHALL PERMIT A DECLARATION REGARDING THE ISSUE OR SALE
OF A SECURITY TO BECOME EFFECTIVE UNLESS THE COMMISSION FINDS THAT - 

     .         .         .         .     . 

"(6)  THE TERMS AND CONDITIONS OF THE ISSUE OR SALE OF THE SECURITY
ARE DETRIMENTAL TO THE PUBLIC INTEREST OR THE INTEREST OF INVESTORS OR
CONSUMERS. 

"(E)  IF THE REQUIREMENTS OF SUBSECTION (G) ARE SATISFIED, THE
COMMISSION SHALL PERMIT A DECLARATION TO BECOME EFFECTIVE REGARDING THE
EXERCISE OF A PRIVILEGE OR RIGHT TO ALTER THE PRIORITIES, PREFERENCES,
VOTING POWER, OR OTHER RIGHTS OF THE HOLDERS OF AN OUTSTANDING SECURITY
UNLESS THE COMMISSION FINDS THAT SUCH EXERCISE OF SUCH PRIVILEGE OR
RIGHT WILL RESULT IN AN UNFAIR OR INEQUITABLE DISTRIBUTION OF VOTING
POWER AMONG HOLDERS OF THE SECURITIES OF THE DECLARANT OR IS OTHERWISE
DETRIMENTAL TO THE PUBLIC INTEREST OR THE INTEREST OF INVESTORS OR
CONSUMERS. 

"(F)  ANY ORDER PERMITTING A DECLARATION TO BECOME EFFECTIVE MAY
CONTAIN SUCH TERMS AND CONDITIONS AS THE COMMISSION FINDS NECESSARY TO
ASSURE COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS SECTION.  ... 

"SEC. 11.  (A)  IT SHALL BE THE DUTY OF THE COMMISSION TO EXAMINE THE
CORPORATE STRUCTURE OF EVERY REGISTERED HOLDING COMPANY AND SUBSIDIARY
COMPANY THEREOF, THE RELATIONSHIPS AMONG THE COMPANIES IN THE HOLDING
COMPANY SYSTEM OF EVERY SUCH COMPANY AND THE CHARACTER OF THE INTERESTS
THEREOF AND THE PROPERTIES OWNED OR CONTROLLED THEREBY TO DETERMINE THE
EXTENT TO WHICH THE CORPORATE STRUCTURE OF SUCH HOLDING-COMPANY SYSTEM
AND THE COMPANIES THEREIN MAY BE SIMPLIFIED, UNNECESSARY COMPLEXITIES
THEREIN ELIMINATED, VOTING POWER FAIRLY AND EQUITABLY DISTRIBUTED AMONG
THE HOLDERS OF SECURITIES THEREOF, AND THE PROPERTIES AND BUSINESS
THEREOF CONFINED TO THOSE NECESSARY OR APPROPRIATE TO THE OPERATIONS OF
AN INTEGRATED PUBLIC-UTILITY SYSTEM.  ...    "(E)  IN ACCORDANCE WITH
SUCH RULES AND REGULATIONS OR ORDER AS THE COMMISSION MAY DEEM
NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION
OF INVESTORS OR CONSUMERS, ANY REGISTERED HOLDING COMPANY OR ANY
SUBSIDIARY COMPANY OF A REGISTERED HOLDING COMPANY MAY, AT ANY TIME
AFTER JANUARY 1, 1936, SUBMIT A PLAN TO THE COMMISSION FOR THE
DIVESTMENT OF CONTROL, SECURITIES, OR OTHER ASSETS, OR FOR OTHER ACTION
BY SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF FOR THE PURPOSE OF
ENABLING SUCH COMPANY OR ANY SUBSIDIARY COMPANY THEREOF TO COMPLY WITH
THE PROVISIONS OF SUBSECTION (B).  IF, AFTER NOTICE AND OPPORTUNITY FOR
HEARING, THE COMMISSION SHALL FIND SUCH PLAN, AS SUBMITTED OR AS
MODIFIED, NECESSARY TO EFFECTUATE THE PROVISIONS OF SUBSECTION (B) AND
FAIR AND EQUITABLE TO THE PERSONS AFFECTED BY SUCH PLAN, THE COMMISSION
SHALL MAKE AN ORDER APPROVING SUCH PLAN; AND THE COMMISSION, AT THE
REQUEST OF THE COMPANY, MAY APPLY TO A COURT, IN ACCORDANCE WITH THE
PROVISIONS OF SUBSECTION (F) OF SECTION 18, TO ENFORCE AND CARRY OUT
THE TERMS AND PROVISIONS OF SUCH PLAN.  IF, UPON ANY SUCH APPLICATION,
THE COURT, AFTER NOTICE AND OPPORTUNITY FOR HEARING, SHALL APPROVE SUCH
PLAN AS FAIR AND EQUITABLE AND AS APPROPRIATE TO EFFECTUATE THE
PROVISIONS OF SECTION 11, THE COURT AS A COURT OF EQUITY MAY, TO SUCH
EXTENT AS IT DEEMS NECESSARY FOR THE PURPOSE OF CARRYING OUT THE TERMS
AND PROVISIONS OF SUCH PLAN, TAKE EXCLUSIVE JURISDICTION AND POSSESSION
OF THE COMPANY OR COMPANIES AND THE ASSETS THEREOF, WHEREVER LOCATED;
AND THE COURT SHALL HAVE JURISDICTION TO APPOINT A TRUSTEE, AND THE
COURT MAY CONSTITUTE AND APPOINT THE COMMISSION AS SOLE TRUSTEE, TO
HOLD OR ADMINISTER, UNDER THE DIRECTION OF THE COURT AND IN ACCORDANCE
WITH THE PLAN THERETOFORE APPROVED BY THE COURT AND THE COMMISSION, THE
ASSETS SO POSSESSED.  ...  " 

FN2  SEE 1 DODD AND BAKER, CASES ON BUSINESS ASSOCIATIONS (1940) 498
500, 583-86, 621-22; 1 MORAWETZ ON PRIVATE CORPORATIONS (2D ED. 1886)
SECS. 516-21, PP. 482-89. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE REED AND MR. JUSTICE MURPHY
CONCUR, DISSENTING. 

FOR REASONS SET OUT IN THE COURT'S OPINION AND THE DISSENTING OPINION
BELOW, I AGREE THAT THESE RESPONDENTS, OFFICERS AND DIRECTORS OF THE
CORPORATIONS SEEKING REORGANIZATION, ACTED IN A FIDUCIARY CAPACITY IN
FORMULATING AND MANAGING PLANS THEY SUBMITTED TO THE COMMISSION, AND
THAT, AS FIDUCIARIES, THEY SHOULD BE HELD TO A SCRUPULOUS OBSERVANCE OF
THEIR TRUST.  I FURTHER AGREE THAT CONGRESS CONFERRED ON THE COMMISSION
"BROAD POWERS FOR THE PROTECTION OF THE PUBLIC," INVESTORS AND
CONSUMERS; AND THAT THE COMMISSION, NOT THE COURT, WAS INVESTED BY
CONGRESS WITH AUTHORITY TO DETERMINE WHETHER A PROPOSED REORGANIZATION
OR MERGER WOULD BE "FAIR AND EQUITABLE," OR WHETHER IT WOULD BE
"DETRIMENTAL TO THE PUBLIC INTEREST OR THE INTEREST OF INVESTORS OR
CONSUMERS." 

THE CONCLUSIONS OF THE COURT WITH WHICH I DISAGREE ARE THOSE IN WHICH
IT HOLDS THAT WHILE THE SECURITIES AND EXCHANGE COMMISSION HAS ABUNDANT
POWER TO MEET THE SITUATION PRESENTED BY THE ACTIVITIES OF THESE
RESPONDENTS, IT HAS NOT DONE SO.  THIS CONCLUSION IS APPARENTLY BASED
ON THE PREMISE THAT THE COMMISSION HAS RELIED UPON THE COMMON LAW
RATHER THAN ON "NEW STANDARDS REFLECTING THE EXPERIENCE GAINED BY IT IN
EFFECTUATING LEGISLATIVE POLICY," AND THAT THE COMMON LAW DOES NOT
SUPPORT ITS CONCLUSION; THAT THE COMMISSION COULD HAVE PROMULGATED "A
GENERAL RULE OF WHICH ITS ORDER HERE WAS A PARTICULAR APPLICATION," BUT
INSTEAD MADE MERELY AN AD HOC JUDGMENT; AND THAT THE COMMISSION MADE NO
FINDING THAT THESE PRACTICES WOULD PREJUDICE ANYONE. 

THE COMMISSION'S ACTUAL FINDING WAS THAT "THE PLAN OF REORGANIZATION
HEREIN CONSIDERED, LIKE THE PREVIOUS PLANS FILED WITH US OVER THE PAST
SEVERAL YEARS, WAS FORMULATED BY THE MANAGEMENT OF FEDERAL, AND
DISCUSSIONS CONCERNING THE REORGANIZATION OF THIS CORPORATION HAVE
TAKEN PLACE BETWEEN THE MANAGEMENT AND THE STAFF OF THE COMMISSION OVER
THE PAST SEVERAL YEARS;" THAT C.T. CHENERY PURCHASED 8,618 SHARES OF
PREFERRED STOCK DURING THIS PERIOD; THAT OTHER OFFICERS AND DIRECTORS
OF THE CONCERNS INVOLVED ACQUIRED 3,789 SHARES DURING THE SAME PERIOD;
THAT FOR THIS STOCK THESE RESPONDENT FIDUCIARIES PAID $328,346.89 AND
THEN SUBMITTED THEIR LATEST REORGANIZATION PLAN, UNDER WHICH THIS
PURCHASED STOCK WOULD HAVE A BOOK VALUE IN THE REORGANIZATION COMPANY
OF $1,162,431.90.  IN THE LIGHT OF THESE AND OTHER FACTS THE COMMISSION
CONCLUDED THAT THE NEW PLAN WOULD BE "UNFAIR, INEQUITABLE, AND
DETRIMENTAL, SO LONG AS THE PREFERRED STOCK PURCHASED BY THE MANAGEMENT
AT LOW PRICES IS TO BE PERMITTED TO SHARE ON A PARITY WITH OTHER
PREFERRED STOCK."  THE COMMISSION DECLINED TO GIVE "EFFECTIVENESS" TO
THE PROPOSED PLAN AND ENTERED "ADVERSE FINDINGS" AGAINST IT UNDER SECS.
7(D)(1) AND 7(D)(2) OF THE CONTROLLING ACT, RESTING ITS REFUSAL TO
APPROVE ON THIS STATEMENT:  "WE FIND THAT THE PROVISIONS FOR
PARTICIPATION BY THE PREFERRED STOCK HELD BY THE MANAGEMENT RESULT IN
THE TERMS OF ISSUANCE OF THE NEW SECURITIES BEING DETRIMENTAL TO THE
INTERESTS OF INVESTORS AND THE PLAN BEING UNFAIR AND INEQUITABLE." 

THE GROUNDS UPON WHICH THE COMMISSION MADE ITS FINDINGS SEEM CLEAR
ENOUGH TO ME.  ACCEPTING, AS THE COURT DOES, THE FIDUCIARY RELATIONSHIP
OF THESE RESPONDENTS IN MANAGING THE COMMISSION PROCEEDINGS, IT FOLLOWS
THAT THEIR PECULIAR INFORMATION AS TO THE STOCK VALUES UNDER THEIR
PROPOSED PLAN AFFORDED THEM OPPORTUNITIES FOR STOCK PURCHASE PROFITS
WHICH OTHER STOCKHOLDERS DID NOT HAVE.  WHILE SUCH FIDUCIARIES, THEY
BOUGHT PREFERRED STOCK AND THEN OFFERED A REORGANIZATION PLAN WHICH
WOULD GIVE THIS STOCK A BOOK VALUE OF FOUR TIMES THE PRICE THEY HAD
PAID FOR IT.  WHAT THE COMMISSION HAS DONE IS TO SAY THAT NO SUCH
REWARD SHALL BE REAPED BY THESE FIDUCIARIES.  AT THE SAME TIME THEY ARE
PERMITTED TO RECOVER THE FULL PURCHASE PRICE WITH INTEREST.  TO PERMIT
THEIR REORGANIZATION PLAN TO PUT THEM IN THE SAME POSITION AS THE OLD
STOCKHOLDERS GIVES TO THESE FIDUCIARIES AN UNCONSCIONABLE PROFIT FOR
TRADING WITH INSIDE INFORMATION. 

I CAN SEE NOTHING IMPROPER IN THE COMMISSION'S FINDINGS AND
DETERMINATIONS.  ON THE CONTRARY, THE RULE THEY EVOLVED APPEARS TO ME
TO BE A SALUTARY ONE, ADEQUATELY SUPPORTED BY COGENT REASONS AND
THOROUGHLY CONSISTENT WITH THE HIGH STANDARDS OF CONDUCT WHICH SHOULD
BE REQUIRED OF FIDUCIARIES.  THAT THE COMMISSION SAW FIT TO DRAW
SUPPORT FOR ITS OWN ADMINISTRATIVE CONCLUSION FROM DECISIONS OF COURTS
SHOULD NOT DETRACT FROM THE VALIDITY OF ITS FINDINGS.  ENTRUSTED AS THE
COMMISSION IS WITH THE RESPONSIBILITY OF LIFTING THE STANDARD OF
TRANSACTIONS IN THE MARKET PLACE IN ORDER THAT THE MANAGERS OF
FINANCIAL VENTURES MAY NOT IMPOSE UPON THE GENERAL INVESTING PUBLIC, IT
SEEMS WHOLLY APPROPRIATE THAT THE COMMISSION SHOULD HAVE RECOGNIZED THE
INFLUENCE OF ADMONITORY LANGUAGE LIKE THE FOLLOWING IT APPROVINGLY
QUOTED FROM MEINHARD V. SALMON, 249 N.Y. 458, 164 N.E. 545: 

"A TRUSTEE IS HELD TO SOMETHING STRICTER THAN THE MORALS OF THE
MARKET PLACE.  NOT HONESTY ALONE, BUT THE PUNCTILIO OF AN HONOR THE
MOST SENSITIVE, IS THEN THE STANDARD OF BEHAVIOR.  AS TO THIS THERE HAS
DEVELOPED A TRADITION THAT IS UNBENDING AND INVETERATE.  ...  ONLY THUS
HAS THE LEVEL OF CONDUCT FOR FIDUCIARIES BEEN KEPT AT A LEVEL HIGHER
THAN THAT TRODDEN BY THE CROWD." 

THE DECISIONS CITED BY THE COMMISSION SEEM TO ME TO SHOW THE
SOUNDNESS OF THE CONCLUSION IT REACHED.  AS JUDGES WE ARE ENTITLED TO A
SENSE OF GRATIFICATION THAT THE COMMON LAW HAS BEEN ABLE TO MAKE SO
SUBSTANTIAL A CONTRIBUTION TO THE DEVELOPMENT OF THE ADMINISTRATIVE LAW
OF THIS FIELD.  SEE E.G. PEPPER V. LITTON, 308 U.S. 295; MICHOUD V.
GIROD, 4 HOW.  503; MAGRUDER V. DRURY, 235 U.S. 106.  OF COURSE THE
COMMISSION IS NOT LIMITED TO COMMON LAW PRINCIPLES IN PROTECTING
INVESTORS AND THE PUBLIC, BUT EVEN IF IT WERE SO LIMITED THE MAGRUDER
CASE WOULD IN MY OPINION PROVIDE COMPLETE SUPPORT FOR THE POSITION
TAKEN BY THE COMMISSION:  "THE INTENTION IS TO PROVIDE AGAINST ANY
POSSIBLE SELFISH INTEREST EXERCISING AN INFLUENCE WHICH CAN INTERFERE
WITH THE FAITHFUL DISCHARGE OF THE DUTY WHICH IS OWING IN A FIDUCIARY
CAPACITY.  ...  IT MAKES NO DIFFERENCE THAT THE ESTATE WAS NOT A LOSER
IN THE TRANSACTION OR THAT THE COMMISSION WAS NO MORE THAN THE SERVICES
WERE REASONABLY WORTH."  PP. 119, 120.  THE DISTINCTION NOW SEEN BY THE
COURT BETWEEN THESE CASES AND THE INSTANT PROBLEM COMES TO LITTLE MORE
THAN THAT THE FACT SITUATIONS ARE SIMILAR BUT NOT IDENTICAL. 

WHILE I CONSIDER THAT THE CASES ON WHICH THE COMMISSION RELIED GIVE
FULL SUPPORT TO THE CONCLUSION IT REACHED, I DO NOT SUPPOSE, AS THE
COURT DOES, THAT THE COMMISSION'S RULE IS NOT FULLY BASED ON COMMISSION
EXPERIENCE.  THE COMMISSION DID NOT "EXPLICITLY DISAVOW" ANY RELIANCE
ON WHAT ITS MEMBERS HAD LEARNED IN THEIR YEARS OF EXPERIENCE, AND OF
COURSE THEY, AS TRADE EXPERTS, MADE THEIR FINDINGS THAT RESPONDENT'S
PRACTICE WAS "DETRIMENTAL TO THE INTERESTS OF INVESTORS" IN THE LIGHT
OF THEIR KNOWLEDGE.  THAT THEY DID NOT UNDULY PARADE FACT DATA ACROSS
THE PAGES OF THEIR REPORTS IS A COMMENDABLE SAVING OF EFFORT SINCE THEY
MEANT MERELY TO ANNOUNCE FOR THEIR OWN JURISDICTION AN OBVIOUS RULE OF
HONEST DEALING CLOSELY RELATED TO COMMON LAW STANDARDS.  OF COURSE, THE
COMMISSION CAN NOW CHANGE THE FORM OF ITS DECISION TO COMPLY WITH THE
COURT ORDER.  THE COURT CAN REQUIRE THE COMMISSION TO USE MORE WORDS;
BUT IT SEEMS DIFFICULT TO IMAGINE HOW MORE WORDS OR DIFFERENT WORDS
COULD FURTHER ILLUMINATE ITS PURPOSE OR ITS DETERMINATION.  A JUDICIAL
REQUIREMENT OF CIRCUMSTANTIALLY DETAILED FINDINGS AS THE PRICE OF COURT
APPROVAL CAN BOG THE ADMINISTRATIVE POWER IN A QUAGMIRE OF MINUTIAE. 
HYPERCRITICAL EXACTIONS AS TO FINDINGS CAN PROVIDE A HANDY BUT AN
ALMOST INVISIBLE GLIDEWAY ENABLING COURTS TO PASS "FROM THE NARROW
CONFINES OF LAW INTO THE MORE SPACIOUS DOMAIN OF POLICY."  PHELPS DODGE
CORP. V. LABOR BOARD, 313 U.S. 177, 194.  HERE FOR INSTANCE, THE COURT
APPARENTLY HOLDS THAT THE COMMISSION HAS FULL POWER TO DO EXACTLY WHAT
IT DID; BUT THE COURT SENDS THE MATTER BACK TO THE COMMISSION TO REVISE
THE LANGUAGE OF ITS OPINION, IN ORDER, I SUPPOSE, THAT THE COURT MAY
REAPPRAISE THE REASONS WHICH MOVED THE COMMISSION TO DETERMINE THAT THE
CONDUCT OF THESE FIDUCIARIES WAS DETRIMENTAL TO THE PUBLIC AND
INVESTORS.  THE ACT UNDER WHICH THE COMMISSION PROCEEDED DOES NOT
PURPORT TO VEST US WITH AUTHORITY TO MAKE SUCH A REAPPRAISAL. 

THAT THE COMMISSION HAS CHOSEN TO PROCEED CASE BY CASE RATHER THAN BY
A GENERAL PRONOUNCEMENT DOES NOT APPEAR TO ME TO MERIT CRITICISM.  THE
INTIMATION IS THAT THE COMMISSION CAN ACT ONLY THROUGH GENERAL FORMULAE
RIGIDLY ADHERED TO.  IN THE FIRST PLACE, THE RULE OF THE SINGLE CASE IS
OBVIOUSLY A GENERAL ADVERTISEMENT TO THE TRADE, AND IN THE SECOND PLACE
THE BRIEFS BEFORE US INDICATE THAT THIS IS BUT ONE OF A NUMBER OF CASES
IN WHICH THE COMMISSION IS MOVING TO AN IDENTICAL RESULT ON A BROAD
FRONT.  BUT ASIDE FROM THESE CONSIDERATIONS THE ACT GIVES THE
COMMISSION WIDE POWERS TO EVOLVE POLICY STANDARDS, AND THIS MAY WELL BE
DONE CASE BY CASE, AS UNDER THE FEDERAL TRADE COMMISSION ACT.  FEDERAL
TRADE COMMISSION V. KEPPEL & BRO., 291 U.S. 304, 310-312. 

THE WHOLE POINT OF THE COMMISSION FINDING HAS BEEN LOST IF IT IS
CRITICIZED FOR A FAILURE TO SHOW INJURY TO PARTICULAR SHAREHOLDERS. 
THE COMMISSION HOLDING IS THAT IT SHOULD NOT "UNDERTAKE TO DECIDE CASE
BY CASE WHETHER THE MANAGEMENT'S TRADING HAS IN FACT OPERATED TO THE
DETRIMENT OF THE PERSONS WHOM IT REPRESENTS," BECAUSE THE "TENDENCY TO
EVIL" FROM THIS PRACTICE IS SO GREAT THAT THE COMMISSION DESIRES TO
ATTACH TO IT A CONCLUSIVE PRESUMPTION OF IMPROPRIETY. 

THE RULE THE COMMISSION ADOPTED HERE IS APPROPRIATE.  PROTECTION OF
INVESTORS FROM INSIDERS WAS ONE OF THE CHIEF REASONS WHICH LED TO
ADOPTION OF THE LAW WHICH THE COMMISSION WAS SELECTED TO ADMINISTER. 
FN1  THAT PURPOSE CAN BE GREATLY RETARDED BY OVERMETICULOUS EXACTIONS,
EXACTIONS WHICH REQUIRE A DETAILED NARRATION OF UNDERLYING REASONS
WHICH PROMPT THE COMMISSION TO REQUIRE HIGH STANDARDS OF HONESTY AND
FAIRNESS.  I FAVOR APPROVING THE RULE THEY APPLIED. 

FN1  "AMONG THE MOST VICIOUS PRACTICES UNEARTHED AT THE HEARINGS
BEFORE THE SUBCOMMITTEE WAS THE FLAGRANT BETRAYAL OF THEIR FIDUCIARY
DUTIES BY DIRECTORS AND OFFICERS OF CORPORATIONS WHO USED THEIR
POSITIONS OF TRUST AND THE CONFIDENTIAL INFORMATION WHICH CAME TO THEM
IN SUCH POSITIONS, TO AID THEM IN THEIR MARKET ACTIVITIES.  CLOSELY
ALLIED TO THIS TYPE OF ABUSE WAS THE UNSCRUPULOUS EMPLOYMENT OF INSIDE
INFORMATION BY LARGE STOCKHOLDERS WHO, WHILE NOT DIRECTORS AND
OFFICERS, EXERCISED SUFFICIENT CONTROL OVER THE DESTINIES OF THEIR
COMPANIES TO ENABLE THEM TO ACQUIRE AND PROFIT BY INFORMATION NOT
AVAILABLE TO OTHERS."  REPORT OF THE SENATE COMMITTEE ON BANKING AND
CURRENCY ON STOCK EXCHANGE PRACTICES, REPORT NO. 1455, 73D CONG., 2D
SESS., P. 55. 
..END :






















JEROME V. UNITED STATES, 318 U.S. 101 


NO. 325.  ARGUED JANUARY 7, 1943.  - DECIDED FEBRUARY 1, 1943.  - 130
F.2D 514, REVERSED. 


IN SEC. 2(A) OF THE FEDERAL BANK ROBBERY ACT, WHICH PROVIDES THAT
"WHOEVER SHALL ENTER OR ATTEMPT TO ENTER ANY BANK, OR ANY BUILDING USED
IN WHOLE OR IN PART AS A BANK, WITH INTENT TO COMMIT IN SUCH BANK OR
BUILDING, OR PART THEREOF, SO USED, ANY FELONY OR LARCENY" SHALL BE
SUBJECT TO THE PENALTY THEREIN PRESCRIBED, THE WORD "FELONY" EMBRACES
ONLY OFFENSES WHICH ARE FELONIES UNDER FEDERAL LAW AND AFFECT BANKS
PROTECTED BY THE ACT.  P. 108. 

JEROME V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 317 U.S. 606, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR VIOLATION OF THE FEDERAL BANK ROBBERY ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

SEC. 2(A) OF THE BANK ROBBERY ACT (48 STAT. 783, 50 STAT. 749, 12
U.S.C. SEC. 588B) PROVIDES IN PART THAT "WHOEVER SHALL ENTER OR ATTEMPT
TO ENTER ANY BANK,  FN1  OR ANY BUILDING USED IN WHOLE OR IN PART AS A
BANK, WITH INTENT TO COMMIT IN SUCH BANK OR BUILDING, OR PART THEREOF,
SO USED, ANY FELONY OR LARCENY, SHALL BE FINED NOT MORE THAN $5,000 OR
IMPRISONED NOT MORE THAN TWENTY YEARS, OR BOTH."  PETITIONER WAS
INDICTED UNDER THAT SECTION FOR ENTERING A NATIONAL BANK IN VERMONT
WITH INTENT TO UTTER A FORGED PROMISSORY NOTE AND THEREBY TO DEFRAUD
THE BANK.  HE WAS CONVICTED AFTER TRIAL BEFORE A JURY AND WAS SENTENCED
TO IMPRISONMENT FOR ONE YEAR AND A DAY.  THE UTTERANCE OF A FORGED
PROMISSORY NOTE IS A FELONY UNDER THE LAWS OF VERMONT (P.L. 1933, SEC.
8485, SEC. 8750) BUT NOT UNDER ANY FEDERAL STATUTE.  THE CIRCUIT COURT
OF APPEALS AFFIRMED THE CONVICTION BY A DIVIDED VOTE, HOLDING THAT
"FELONY" AS USED IN SEC. 2(A) INCLUDES OFFENSES WHICH ARE FELONIES
UNDER STATE LAW.  130 F.2D 514.  WE GRANTED THE PETITION FOR A WRIT OF
CERTIORARI BECAUSE OF THE IMPORTANCE OF THE PROBLEM IN THE
ADMINISTRATION OF JUSTICE AND BECAUSE OF THE DIVERSITY OF VIEWS WHICH
HAVE DEVELOPED AS RESPECTS THE MEANING OF "FELONY" IN SEC. 2(A). 
COMPARE WITH THE DECISION BELOW HUDSPETH V. MELVILLE, 127 F.2D 373;
HUDSPETH V. TORNELLO, 128 F.2D 172. 

PRIOR TO 1934, BANKS ORGANIZED OR OPERATING UNDER FEDERAL LAW WERE
PROTECTED AGAINST EMBEZZLEMENT AND LIKE OFFENSES BY R.S. 5209, 40 STAT.
972, 12 U.S.C. SEC. 592.  BUT SUCH CRIMES AS ROBBERY, BURGLARY, AND
LARCENY  FN2  DIRECTED AGAINST SUCH BANKS WERE PUNISHABLE ONLY UNDER
STATE LAW.  BY 1934 GREAT CONCERN HAD BEEN EXPRESSED OVER INTERSTATE
OPERATIONS BY GANGSTERS AGAINST BANKS - ACTIVITIES WITH WHICH LOCAL
AUTHORITIES WERE FREQUENTLY UNABLE TO COPE.  H. REP. NO. 1461, 73D
CONG., 2D SESS., P. 2.  THE ATTORNEY GENERAL, IN RESPONSE TO THAT
CONCERN, RECOMMENDED LEGISLATION EMBRACING CERTAIN NEW FEDERAL
OFFENSES.  S. 2841, 73D CONG., 2D SESS.  AND SEE 78 CONG. REC. 5738. 
SEC. 3 OF THAT BILL MADE IT A FEDERAL CRIME TO BREAK INTO OR ATTEMPT TO
BREAK INTO SUCH BANKS WITH INTENT TO COMMIT "ANY OFFENSE DEFINED BY
THIS ACT, OR ANY FELONY UNDER ANY LAW OF THE UNITED STATES OR UNDER ANY
LAW OF THE STATE, DISTRICT, TERRITORY, OR POSSESSION" IN WHICH THE BANK
WAS LOCATED.  SEC. 2 MADE IT AN OFFENSE TO TAKE OR ATTEMPT TO TAKE
MONEY OR PROPERTY BELONGING TO OR IN THE POSSESSION OF SUCH A BANK
WITHOUT ITS CONSENT OR WITH ITS CONSENT OBTAINED "BY ANY TRICK,
ARTIFICE, FRAUD, OR FALSE OR FRAUDULENT REPRESENTATION."  THIS BILL WAS
REPORTED FAVORABLY BY THE SENATE JUDICIARY COMMITTEE (S. REP. NO. 537,
73D CONG., 2D SESS.) AND PASSED THE SENATE.  78 CONG. REC. 5738.  THE
HOUSE JUDICIARY COMMITTEE, HOWEVER, STRUCK OUT SEC. 2, DEALING WITH
LARCENY, AND SEC. 3, DEALING WITH BURGLARY.  H. REP. NO. 1461, SUPRA,
P. 1.  AND THE BILL WAS FINALLY ENACTED WITHOUT THEM.  BUT IT RETAINED
THE ROBBERY PROVISION  FN3  NOW CONTAINED IN THE FIRST CLAUSE OF SEC.
2(A) OF THE BANK ROBBERY ACT. 

IN 1937 THE ATTORNEY GENERAL RECOMMENDED THE ENLARGEMENT OF THE BANK
ROBBERY ACT "TO INCLUDE LARCENY AND BURGLARY OF THE BANKS" PROTECTED BY
IT.  H. REP. NO. 732, 75TH CONG., 1ST SESS., P. 1.  THE FACT THAT THE
1934 STATUTE WAS LIMITED TO ROBBERY WAS SAID TO HAVE PRODUCED "SOME
INCONGRUOUS RESULTS - A "STRIKING INSTANCE" OF WHICH WAS THE CASE OF A
MAN WHO STOLE A LARGE SUM FROM A BANK BUT WHO WAS NOT GUILTY OF ROBBERY
BECAUSE HE DID NOT DISPLAY FORCE OR VIOLENCE AND DID NOT PUT ANY ONE IN
FEAR.  ID., PP. 1-2.  THE BILL AS INTRODUCED (H.R. 5900, 75TH CONG.,
1ST SESS., 81 CONG. REC. 2731) ADDED TO SEC. 2(A) TWO NEW CLAUSES - ONE
DEFINING LARCENY AND THE OTHER MAKING IT A FEDERAL OFFENSE TO ENTER OR
ATTEMPT TO ENTER ANY BANK WITH INTENT TO COMMIT THEREIN "ANY LARCENY OR
OTHER DEPREDATION."  FOR REASONS NOT DISCLOSED IN THE LEGISLATIVE
HISTORY, THE HOUSE JUDICIARY COMMITTEE SUBSTITUTED "ANY FELONY OR
LARCENY" FOR "ANY LARCENY OR OTHER DEPREDATION."  H. REP. NO. 732,
SUPRA, P. 2.  WITH THAT CHANGE AND WITH AN AMENDMENT TO THE LARCENY
CLAUSE  FN4 DISTINGUISHING BETWEEN GRAND AND PETIT LARCENY (81 CONG.
REC. 5376-5377), SEC. 2(A) WAS ENACTED IN ITS PRESENT FORM. 

WE DISAGREE WITH THE CIRCUIT COURT OF APPEALS.  WE DO NOT THINK THAT
"FELONY" AS USED IN SEC. 2(A) INCORPORATES STATE LAW. 

AT TIMES IT HAS BEEN INFERRED FROM THE NATURE OF THE PROBLEM WITH
WHICH CONGRESS WAS DEALING THAT THE APPLICATION OF A FEDERAL STATUTE
SHOULD BE DEPENDENT ON STATE LAW.  EXAMPLES UNDER FEDERAL REVENUE ACTS
ARE COMMON.  DOUGLAS V. WILLCUTS, 296 U.S. 1; HELVERING V. STUART, 317
U.S. 154, AND CASES CITED.  BUT WE MUST GENERALLY ASSUME, IN THE
ABSENCE OF A PLAIN INDICATION TO THE CONTRARY, THAT CONGRESS WHEN IT
ENACTS A STATUTE IS NOT MAKING THE APPLICATION OF THE FEDERAL ACT
DEPENDENT ON STATE LAW.  THAT ASSUMPTION IS BASED ON THE FACT THAT THE
APPLICATION OF FEDERAL LEGISLATION IS NATIONWIDE (UNITED STATES V.
PELZER, 312 U.S. 399, 402) AND AT TIMES ON THE FACT THAT THE FEDERAL
PROGRAM WOULD BE IMPAIRED IF STATE LAW WERE TO CONTROL.  SEABOARD AIR
LINE RY. V. HORTON, 233 U.S. 492, 503.  WHEN IT COMES TO FEDERAL
CRIMINAL LAWS SUCH AS THE PRESENT ONE, THERE IS A CONSIDERATION IN
ADDITION TO THE DESIRABILITY OF UNIFORMITY IN APPLICATION WHICH
SUPPORTS THE GENERAL PRINCIPLE.  SINCE THERE IS NO COMMON LAW OFFENSE
AGAINST THE UNITED STATES (UNITED STATES V. HUDSON, 7 CRANCH 32; UNITED
STATES V. GRADWELL, 243 U.S. 476, 485), THE ADMINISTRATION OF CRIMINAL
JUSTICE UNDER OUR FEDERAL SYSTEM HAS RESTED WITH THE STATES, EXCEPT AS
CRIMINAL OFFENSES HAVE BEEN EXPLICITLY PRESCRIBED BY CONGRESS.  WE
SHOULD BE MINDFUL OF THAT TRADITION IN DETERMINING THE SCOPE OF FEDERAL
STATUTES DEFINING OFFENSES WHICH DUPLICATE OR BUILD UPON STATE LAW.  IN
THAT CONNECTION IT SHOULD BE NOTED THAT THE DOUBLE JEOPARDY PROVISION
OF THE FIFTH AMENDMENT DOES NOT STAND AS A BAR TO FEDERAL PROSECUTION
THOUGH A STATE CONVICTION BASED ON THE SAME ACTS HAS ALREADY BEEN
OBTAINED.  SEE UNITED STATES V. LANZA, 260 U.S. 377; HEBERT V.
LOUISIANA, 272 U.S. 312.  THAT CONSIDERATION GIVES ADDITIONAL WEIGHT TO
THE VIEW THAT WHERE CONGRESS IS CREATING OFFENSES WHICH DUPLICATE OR
BUILD UPON STATE LAW, COURTS SHOULD BE RELUCTANT TO EXPAND THE DEFINED
OFFENSES BEYOND THE CLEAR REQUIREMENTS OF THE TERMS OF THE STATUTE. 

THERE IS NO PLAIN INDICATION IN THE LEGISLATIVE HISTORY OF SEC. 2(A)
THAT CONGRESS USED "FELONY" IN A SENSE SUFFICIENTLY BROAD TO INCLUDE
STATE OFFENSES.  THOUGH THE LEGISLATIVE DATA ARE MEAGER, THE
INDICATIONS ARE TO THE CONTRARY.  IN THE FIRST PLACE, THE 1934 BILL
EXPRESSLY PROVIDED, AS WE HAVE NOTED, THAT STATE FELONIES WERE INCLUDED
IN THE DEFINITION OF THE NEW FEDERAL OFFENSE OF BURGLARY.  THAT
PROVISION WAS STRICKEN IN THE HOUSE.  THE 1934 BILL ALSO DEFINED
LARCENY TO INCLUDE LARCENY BY TRICK OR FRAUD.  THAT PROVISION WAS
LIKEWISE ELIMINATED IN THE HOUSE.  THE 1934 ACT WAS PASSED WITHOUT
EITHER OF THEM.  THE 1937 BILL DID NOT RENEW THE EARLIER PROPOSALS TO
INCLUDE THEM BUT SUBSTITUTED "ANY LARCENY OR OTHER DEPREDATION." 
LARCENY, LIKE ROBBERY, IS DEFINED IN SEC. 2(A).  AND "DEPREDATION" IS
NOT DEVOID OF MEANING IN SUCH A SETTING (CF. DEAL V. UNITED STATES, 274
U.S. 277, 283) APART FROM ANY SPECIAL SIGNIFICANCE WHICH IT MAY HAVE IN
LOCAL LAW.  IT IS DIFFICULT TO CONCLUDE IN THE FACE OF THIS HISTORY
THAT CONGRESS, HAVING REJECTED IN 1934 AN EXPRESS PROVISION MAKING
STATE FELONIES FEDERAL OFFENSES, REVERSED ITSELF IN 1937, AND, THROUGH
THE PHRASE "ANY FELONY OR LARCENY," ADOPTED THE PENAL PROVISIONS OF
FORTY-EIGHT STATES WITH RESPECT TO ACTS COMMITTED IN NATIONAL OR
INSURED BANKS.  IT IS LIKEWISE DIFFICULT TO BELIEVE THAT CONGRESS,
THROUGH THE SAME CLAUSE, ADOPTED BY INDIRECTION IN 1937 MUCH OF THE
FRAUD PROVISION WHICH IT REJECTED IN 1934.  CF. UNITED STATES V.
PATTON, 120 F.2D 73. 

IN THE SECOND PLACE, CONGRESS DEFINED IN SEC. 2(A) ROBBERY, BURGLARY,
AND LARCENY BUT NOT FELONY.  WE CAN HARDLY BELIEVE THAT, HAVING DEFINED
THREE FEDERAL OFFENSES, IT WENT ON IN THE SAME SECTION TO IMPORT BY
IMPLICATION A MISCELLANEOUS GROUP OF STATE CRIMES AS THE DEFINITION OF
THE FOURTH FEDERAL OFFENSE.  IN THIS CONNECTION IT SHOULD BE NOTED THAT
WHEN CONGRESS HAS DESIRED TO INCORPORATE STATE LAWS IN OTHER FEDERAL
PENAL STATUTES, IT HAS DONE SO BY SPECIFIC REFERENCE OR ADOPTION.  FN5
THE OMISSION OF ANY SUCH PROVISION IN THIS ACT IS A STRONG INDICATION
THAT IT HAD NO SUCH PURPOSE HERE.  CF. UNITED STATES V. COPPERSMITH, 4
F. 198, 207.  THE ACT EXTENDS PROTECTION TO HUNDREDS OF BANKS LOCATED
IN EVERY STATE.  IF STATE LAWS ARE INCORPORATED IN SEC. 2(A), CONGRESS
HAS GONE FAR TOWARD PUTTING THESE BANKS ON A BASIS SOMEWHAT EQUIVALENT
TO "LANDS RESERVED OR ACQUIRED FOR THE USE OF THE UNITED STATES" AS
DESCRIBED IN SEC. 272 OF THE CRIMINAL CODE, 18 U.S.C. SEC. 451.  IN
SUCH A CASE ALL VIOLATIONS OF PENAL LAWS OF THE STATE WITHIN WHICH THE
LANDS ARE LOCATED BECOME FEDERAL OFFENSES.  CRIMINAL CODE SEC. 289, 18
U.S.C. SEC. 468.  SUCH AN EXPANSION OF FEDERAL CRIMINAL JURISDICTION
SHOULD HARDLY BE LEFT TO IMPLICATION AND CONJECTURE. 

MOREOVER, THE DIFFICULTY OF GIVING "FELONY" IN SEC. 2(A) A STATE LAW
MEANING IS EMPHASIZED WHEN WE TURN TO THE LAW OF SUCH A STATE AS NEW
JERSEY.  THERE WE FIND CRIMES CLASSIFIED AS "MISDEMEANORS" AND "HIGH
MISDEMEANORS."  REV. STAT. (1937) SEC. 2:103-5, SEC. 2:103-6.  SEE
UNITED STATES V. SLUTZKY, 79 F.2D 504, 505.  UTTERING A PROMISSORY NOTE
WITH A FORGED ENDORSEMENT IS A "HIGH MISDEMEANOR."  REV. STAT. (1937)
SEC. 2:132-1B.  THE INFERENCE IS STRONG THAT IF CONGRESS HAD DESIGNED
SEC. 2(A) TO INCLUDE THE MORE SERIOUS STATE OFFENSES COMMITTED IN OR
AGAINST NATIONAL OR INSURED BANKS OR ONLY SUCH STATE OFFENSES AS
AFFECTED THOSE BANKS (HUDSPETH V. MELVILLE, SUPRA, P. 376), IT WOULD
HAVE USED LANGUAGE WHICH WOULD HAVE AFFORDED THAT PROTECTION IN ALL THE
STATES. 

FINALLY, THE INCLUSION OF STATE CRIMES IN THE WORD "FELONY" NEITHER
COMPORTS WITH THE SCHEME OF THE ACT NOR IS NECESSARY TO GIVE THE ACT
MEANING AND VITALITY.  AS WE HAVE NOTED, THE PURPOSE OF THE 1934 ACT
WAS TO SUPPLEMENT LOCAL LAW ENFORCEMENT IN CERTAIN RESPECTS.  AND THE
1937 AMENDMENTS WERE DESIGNED "TO INCLUDE LARCENY AND BURGLARY OF THE
BANKS PROTECTED BY THIS STATUTE."  H. REP. NO. 732, SUPRA, P. 1.  BUT
THERE IS NOT THE SLIGHTEST INDICATION THAT THE INTERSTATE ACTIVITIES OF
GANGSTERS AGAINST NATIONAL AND INSURED BANKS HAD BROKEN DOWN OR
RENDERED INEFFECTIVE ENFORCEMENT OF STATE LAWS COVERING ALL SORTS OF
FELONIES.  ON THE CONTRARY, THE BILL INTRODUCED IN 1937 WAS MUCH MORE
SELECTIVE AND REVEALED NO PURPOSE TO MAKE A COMPREHENSIVE
CLASSIFICATION OF ALL CRIMES AGAINST THE BANKS.  MOREOVER, THE RUN OF
STATE FELONIES - FORGERY, RAPE, ADULTERY, AND THE LIKE - WOULD SEEM TO
HAVE LITTLE OR NO RELEVANCY TO THE NEED FOR PROTECTION OF BANKS AGAINST
THE WHOLESALE ACTIVITIES OF THE GANGSTERS OF THAT DAY.  A RELATED
OBJECTION COULD OF COURSE BE MADE IF "FELONY" AS USED IN SEC. 2(A) WERE
TAKEN TO MEAN ANY FEDERAL FELONY SO AS TO BRING WITHIN THE SCOPE OF THE
BANK ROBBERY ACT MISCELLANEOUS FEDERAL FELONIES RANGING FROM THE SALE
OF NARCOTICS TO WHITE SLAVE TRAFFIC.  FN6  BUT AS INDICATED BY JUDGE
FRANK IN HIS DISSENTING OPINION BELOW, SEC. 2(A) IS NOT DEPRIVED OF
VITALITY IF IT IS INTERPRETED TO EXCLUDE STATE FELONIES AND TO INCLUDE
ONLY THOSE FEDERAL FELONIES WHICH AFFECT THE BANKS  FN7  PROTECTED BY
THE ACT.  THAT IS IN OUR OPINION THE CORRECT CONSTRUCTION.  REVERSED. 

FN1  THE TERM "BANK" IS DEFINED IN SEC. 1 OF THE ACT (12 U.S.C. SEC.
588A) TO INCLUDE "ANY MEMBER BANK OF THE FEDERAL RESERVE SYSTEM, AND
ANY BANK, BANKING ASSOCIATION, TRUST COMPANY, SAVINGS BANK, OR OTHER
BANKING INSTITUTION ORGANIZED OR OPERATING UNDER THE LAWS OF THE UNITED
STATES AND ANY INSURED BANK AS DEFINED IN SUBSECTION (C) OF SECTION
12B, OF THE FEDERAL RESERVE ACT, AS AMENDED." 

FN2  TO THE EXTENT THAT ACTS CONSTITUTING LARCENY WOULD NOT ALSO
CONSTITUTE A FEDERAL CRIME UNDER R.S. 5209.  SEE UNITED STATES V.
NORTHWAY, 120 U.S. 327, 335. 

FN3  "WHOEVER, BY FORCE AND VIOLENCE, OR BY PUTTING IN FEAR,
FELONIOUSLY TAKES, OR FELONIOUSLY ATTEMPTS TO TAKE, FROM THE PERSON OR
PRESENCE OF ANOTHER ANY PROPERTY OR MONEY OR ANY OTHER THING OF VALUE
BELONGING TO, OR IN THE CARE, CUSTODY, CONTROL, MANAGEMENT, OR
POSSESSION OF, ANY BANK SHALL BE FINED NOT MORE THAN $5,000 OR
IMPRISONED NOT MORE THAN TWENTY YEARS, OR BOTH." 

FN4  "  ...  WHOEVER SHALL TAKE AND CARRY AWAY, WITH INTENT TO STEAL
OR PURLOIN, ANY PROPERTY OR MONEY OR ANY OTHER THING OF VALUE EXCEEDING
$50 BELONGING TO, OR IN THE CARE, CUSTODY, CONTROL, MANAGEMENT, OR
POSSESSION OF ANY BANK, SHALL BE FINED NOT MORE THAN $5,000 OR
IMPRISONED NOT MORE THAN TEN YEARS, OR BOTH; OR WHOEVER SHALL TAKE AND
CARRY AWAY, WITH INTENT TO STEAL OR PURLOIN, ANY PROPERTY OR MONEY OR
ANY OTHER THING OF VALUE NOT EXCEEDING $50 BELONGING TO, OR IN THE
CARE, CUSTODY, CONTROL, MANAGEMENT, OR POSSESSION OF ANY BANK, SHALL BE
FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR
BOTH."    FN5  SEE E. G., ACT OF MARCH 4, 1909, 35 STAT. 1137, 49 STAT.
380, 18 U.S.C. SEC. 392; ACT OF MAY 18, 1934, 48 STAT. 782, 18 U.S.C.
SEC. 408E; ACT OF JUNE 11, 1932, 47 STAT. 301, 18 U.S.C. SEC. 662A; ACT
OF FEBRUARY 22, 1935, 49 STAT. 31, 15 U.S.C. SEC. 715B; ACT OF JUNE 25,
1936, 49 STAT. 1928, 27 U.S.C. SEC. 223. 

FN6  IT HAS FREQUENTLY BEEN HELD THAT WHEN A FEDERAL STATUTE USES A
TERM WHICH IT DOES NOT DEFINE BUT WHICH WAS A COMMON LAW OFFENSE, IT
WILL BE GIVEN ITS COMMON LAW MEANING.  UNITED STATES V. PALMER, 3
WHEAT.  610, 630; UNITED STATES V. SMITH, 5 WHEAT.  153, 160; HARRISON
V. UNITED STATES, 163 U.S. 140, 142.  IN THIS CASE, HOWEVER, CONGRESS
HAS NOT PUNISHED AN OFFENSE BY ITS COMMON LAW NAME.  MOREOVER, AT
COMMON LAW MURDER, MANSLAUGHTER, ARSON, BURGLARY, ROBBERY, RAPE,
SODOMY, MAYHEM, AND LARCENY WERE FELONIES.  WHARTON, CRIMINAL LAW (12TH
ED.)  SEC.  26.  AND SEE BANNON V. UNITED STATES, 156 U.S. 464, 467. 
SINCE THOSE MISCELLANEOUS CRIMES AS A GROUP DO NOT SUGGEST ON THEIR
FACE THAT THEY CONSTITUTE AN APPROPRIATE BASE ON WHICH TO BUILD A
FEDERAL CRIMINAL CODE FOR PROTECTION OF NATIONAL AND INSURED BANKS, WE
WILL NOT READILY INFER THAT CONGRESS USED THE WORD "FELONY" IN ITS
COMMON LAW MEANING.  THAT CONCLUSION IS FORTIFIED BY THE FURTHER
CIRCUMSTANCE THAT CONGRESS HAS DEFINED NUMEROUS OFFENSES IN OTHER
FEDERAL PENAL STATUTES AND HAS CLASSIFIED SUCH OFFENSES AS FELONIES OR
MISDEMEANORS ACCORDING TO THE SEVERITY OF THE PUNISHMEINT.  CRIMINAL
CODE SEC. 335, 18 U.S.C. SEC. 541.  HENCE WE NEED NOT LOOK ELSEWHERE
FOR THE MEANING OF THE TERM.  CF. REAGAN V. UNITED STATES, 157 U.S.
301, 303.  AS STATED IN ADAMS V. MCCANN, 317 U.S. 269, NT. 2, THE TERM
"FELONY" IS A "VERBAL SURVIVAL WHICH HAS BEEN EMPTIED OF ITS HISTORIC
CONTENT."  THUS WE CONCLUDE THAT THE WORD "FELONY" AS USED IN SEC. 2(A)
TAKES ITS MEANING FROM FEDERAL STATUTES RATHER THAN FROM THE COMMON
LAW. 

FORGERY AT COMMON LAW WAS A MISDEMEANOR.  WHARTON, SUPRA, SEC. 861. 

FN7  ONE SUCH INSTANCE WOULD BE VIOLATION OF THE NATIONAL STOLEN
PROPERTY ACT, 48 STAT. 794, 53 STAT. 1178, 18 U.S.C. SEC. 413,
ESPECIALLY 18 U.S.C. SEC. 416. 
..END :








PALMER V. HOFFMAN, 318 U.S. 109 


NO. 300.  ARGUED JANUARY 7, 8, 1943.  - DECIDED FEBRUARY 1, 1943.  - 129
F.2D 976, AFFIRMED. 


1.  A SIGNED STATEMENT OF A RAILROAD ENGINEER, SINCE DECEASED, GIVING
HIS VERSION OF A GRADE CROSSING ACCIDENT IN WHICH THE LOCOMOTIVE HE WAS
OPERATING WAS INVOLVED, AND MADE, TWO DAYS AFTER THE ACCIDENT, WHEN HE
WAS INTERVIEWED BY AN OFFICIAL OF THE COMPANY AND A REPRESENTATIVE OF A
STATE COMMISSION, HELD NOT MADE "IN THE REGULAR COURSE" OF BUSINESS
WITHIN THE MEANING OF THE ACT OF JUNE 20, 1936, AND NOT ADMISSIBLE AS
EVIDENCE THEREUNDER.  P. 111. 

2.  A RULING OF THE TRIAL COURT THAT IF THE DEFENDANT CALLED FOR AND
INSPECTED A SIGNED STATEMENT WHICH ON CROSS-EXAMINATION A WITNESS FOR
THE PLAINTIFF STATED HE HAD GIVEN TO THE PLAINTIFF'S LAWYER, THE
PLAINTIFF WOULD THEN BE ENTITLED TO PUT THE STATEMENT IN EVIDENCE, HELD
NOT A GROUND FOR REVERSAL IN THIS CASE, SINCE THE DOCUMENT WAS NOT
MARKED FOR IDENTIFICATION AND IS NOT A PART OF THE RECORD, AND THIS
COURT IS THEREFORE UNABLE TO DETERMINE WHETHER THE CONTENTS WOULD HAVE
SERVED TO IMPEACH THE WITNESS.  P. 116. 

3.  RULE 8(C) OF THE RULES OF CIVIL PROCEDURE DOES NOT MAKE
CONTRIBUTORY NEGLIGENCE AN AFFIRMATIVE DEFENSE, BUT RELATES ONLY TO THE
MANNER OF PLEADING.  P. 117. 

4.  THE QUESTION OF THE BURDEN OF ESTABLISHING CONTRIBUTORY
NEGLIGENCE IS A QUESTION OF LOCAL LAW WHICH FEDERAL COURTS IN DIVERSITY
OF CITIZENSHIP CASES MUST APPLY.  P. 117. 

5.  THE RULING OF A LOWER FEDERAL COURT UPON A QUESTION OF LOCAL LAW
WILL NOT HERE BE SET ASIDE EXCEPT ON A PLAIN SHOWING OF ERROR.  P.
118. 

6.  IN A SUIT IN A FEDERAL COURT IN NEW YORK, IN WHICH TWO OF THE
CAUSES OF ACTION WERE BASED ON A MASSACHUSETTS STATUTE AND TWO WERE
BASED ON THE COMMON LAW, THE COURT CHARGED THE JURY THAT THE BURDEN OF
PROVING CONTRIBUTORY NEGLIGENCE WAS ON THE DEFENDANTS.  THE DEFENDANTS'
EXCEPTION TO THE CHARGE DID NOT DIFFERENTIATE BETWEEN THE CAUSES OF
ACTION BASED ON THE STATUTE AND THOSE BASED ON THE COMMON LAW.  AGAIN
WITHOUT DIFFERENTIATING BETWEEN THE STATUTORY AND THE COMMON LAW CAUSES
OF ACTION, THE DEFENDANTS REQUESTED A CHARGE THAT THE BURDEN WAS ON THE
PLAINTIFF TO ESTABLISH FREEDOM FROM CONTRIBUTORY NEGLIGENCE.  IN THIS
SITUATION, THIS COURT, ASSUMING THAT THE CHARGE SO FAR AS THE COMMON
LAW COUNTS ARE CONCERNED WAS ERRONEOUS, BUT BEING UNABLE TO SAY THAT
THE CHARGE WAS INCORRECT SO FAR AS THE STATUTORY CAUSES OF ACTION ARE
CONCERNED, DOES NOT REVERSE AND REMAND THE CAUSE.  P. 119. 

7.  WHERE A PARTY MIGHT HAVE OBTAINED A CORRECT CHARGE TO THE JURY BY
SPECIFICALLY CALLING THE ATTENTION OF THE TRIAL COURT TO THE ERROR AND
WHERE A PART OF THE CHARGE WAS CORRECT, HE MAY NOT THROUGH A GENERAL
EXCEPTION OBTAIN A NEW TRIAL.  P. 119. 

PALMER ET AL., TRUSTEES, V. HOFFMAN, ADMINISTRATOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 317 U.S. 611, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE PETITIONERS IN AN ACTION FOR DAMAGES ON ACCOUNT OF INJURY
AND DEATH ALLEGED TO HAVE BEEN DUE TO NEGLIGENCE.  THE JURISDICTION OF
THE FEDERAL COURT WAS INVOKED ON THE GROUND OF DIVERSITY OF
CITIZENSHIP. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE AROSE OUT OF A GRADE CROSSING ACCIDENT WHICH OCCURRED IN
MASSACHUSETTS.  DIVERSITY OF CITIZENSHIP BROUGHT IT TO THE FEDERAL
DISTRICT COURT IN NEW YORK.  THERE WERE SEVERAL CAUSES OF ACTION.  THE
FIRST TWO WERE ON BEHALF OF RESPONDENT INDIVIDUALLY, ONE BEING BROUGHT
UNDER A MASSACHUSETTS STATUTE (MASS. GEN. L. (1932) C. 160, SECS. 138,
232), THE OTHER AT COMMON LAW.  THE THIRD AND FOURTH WERE BROUGHT BY
RESPONDENT AS ADMINISTRATOR OF THE ESTATE OF HIS WIFE AND ALLEGED THE
SAME COMMON LAW AND STATUTORY NEGLIGENCE AS THE FIRST TWO COUNTS.  ON
THE QUESTION OF NEGLIGENCE THE TRIAL COURT SUBMITTED THREE ISSUES TO
THE JURY - FAILURE TO RING A BELL, TO BLOW A WHISTLE, TO HAVE A LIGHT
BURNING IN THE FRONT OF THE TRAIN.  THE JURY RETURNED A VERDICT IN
FAVOR OF RESPONDENT INDIVIDUALLY FOR SOME $25,000 AND IN FAVOR OF
RESPONDENT AS ADMINISTRATOR FOR $9,000.  THE DISTRICT COURT ENTERED
JUDGMENT ON THE VERDICT.  THE CIRCUIT COURT OF APPEALS AFFIRMED, ONE
JUDGE DISSENTING.  129 F.2D 976.  THE CASE IS HERE ON A PETITION FOR A
WRIT OF CERTIORARI WHICH PRESENTS THREE POINTS. 

I. THE ACCIDENT OCCURRED ON THE NIGHT OF DECEMBER 25, 1940.  ON
DECEMBER 27, 1940, THE ENGINEER OF THE TRAIN, WHO DIED BEFORE THE
TRIAL, MADE A STATEMENT AT A FREIGHT OFFICE OF PETITIONERS WHERE HE WAS
INTERVIEWED BY AN ASSISTANT SUPERINTENDENT OF THE ROAD AND BY A
REPRESENTATIVE OF THE MASSACHUSETTS PUBLIC UTILITIES COMMISSION.  SEE
MASS. GEN. L. (1932) C. 159, SEC. 29.  THIS STATEMENT WAS OFFERED IN
EVIDENCE BY PETITIONERS UNDER THE ACT OF JUNE 20, 1936, 49 STAT. 1561,
28 U.S.C. SEC. 695.  FN1  THEY OFFERED TO PROVE (IN THE LANGUAGE OF THE
ACT) THAT THE STATEMENT WAS SIGNED IN THE REGULAR COURSE OF BUSINESS,
IT BEING THE REGULAR COURSE OF SUCH BUSINESS TO MAKE SUCH A STATEMENT. 
RESPONDENT'S OBJECTION TO ITS INTRODUCTION WAS SUSTAINED. 

WE AGREE WITH THE MAJORITY VIEW BELOW THAT IT WAS PROPERLY EXCLUDED. 

WE MAY ASSUME THAT IF THE STATEMENT WAS MADE "IN THE REGULAR COURSE"
OF BUSINESS, IT WOULD SATISFY THE OTHER PROVISIONS OF THE ACT.  BUT WE
DO NOT THINK THAT IT WAS MADE "IN THE REGULAR COURSE" OF BUSINESS
WITHIN THE MEANING OF THE ACT.  THE BUSINESS OF THE PETITIONERS IS THE
RAILROAD BUSINESS.  THAT BUSINESS LIKE OTHER ENTERPRISES ENTAILS THE
KEEPING OF NUMEROUS BOOKS AND RECORDS ESSENTIAL TO ITS CONDUCT OR
USEFUL IN ITS EFFICIENT OPERATION.  THOUGH SUCH BOOKS AND RECORDS WERE
CONSIDERED RELIABLE AND TRUSTWORTHY FOR MAJOR DECISIONS IN THE
INDUSTRIAL AND BUSINESS WORLD, THEIR USE IN LITIGATION WAS GREATLY
CIRCUMSCRIBED OR HEDGED ABOUT BY THE HEARSAY RULE - RESTRICTIONS WHICH
GREATLY INCREASED THE TIME AND COST OF MAKING THE PROOF WHERE THOSE WHO
MADE THE RECORDS WERE NUMEROUS.  FN2  5 WIGMORE, EVIDENCE (3D ED.,
1940) SEC. 1530.  IT WAS THAT PROBLEM WHICH STARTED THE MOVEMENT
TOWARDS ADOPTION OF LEGISLATION EMBODYING THE PRINCIPLES OF THE PRESENT
ACT.  SEE MORGAN ET AL., THE LAW OF EVIDENCE, SOME PROPOSALS FOR ITS
REFORM (1927) C. V. AND THE LEGISLATIVE HISTORY OF THE ACT INDICATES
THE SAME PURPOSE.  FN3 

THE ENGINEER'S STATEMENT WHICH WAS HELD INADMISSIBLE IN THIS CASE
FALLS INTO QUITE A DIFFERENT CATEGORY.  FN4  IT IS NOT A RECORD MADE
FOR THE SYSTEMATIC CONDUCT OF THE BUSINESS AS A BUSINESS.  AN ACCIDENT
REPORT MAY AFFECT THAT BUSINESS IN THE SENSE THAT IT AFFORDS
INFORMATION ON WHICH THE MANAGEMENT MAY ACT.  IT IS NOT, HOWEVER,
TYPICAL OF ENTRIES MADE SYSTEMATICALLY OR AS A MATTER OF ROUTINE TO
RECORD EVENTS OR OCCURRENCES, TO REFLECT TRANSACTIONS WITH OTHERS, OR
TO PROVIDE INTERNAL CONTROLS.  THE CONDUCT OF A BUSINESS COMMONLY
ENTAILS THE PAYMENT OF TORT CLAIMS INCURRED BY THE NEGLIGENCE OF ITS
EMPLOYEES.  BUT THE FACT THAT A COMPANY MAKES A BUSINESS OUT OF
RECORDING ITS EMPLOYEES' VERSIONS OF THEIR ACCIDENTS DOES NOT PUT THOSE
STATEMENTS IN THE CLASS OF RECORDS MADE "IN THE REGULAR COURSE" OF THE
BUSINESS WITHIN THE MEANING OF THE ACT.  IF IT DID, THEN ANY LAW OFFICE
IN THE LAND COULD FOLLOW THE SAME COURSE, SINCE BUSINESS AS DEFINED IN
THE ACT INCLUDES THE PROFESSIONS.  WE WOULD THEN HAVE A REAL PERVERSION
OF A RULE DESIGNED TO FACILITATE ADMISSION OF RECORDS WHICH EXPERIENCE
HAS SHOWN TO BE QUITE TRUSTWORTHY.  ANY BUSINESS BY INSTALLING A
REGULAR SYSTEM FOR RECORDING AND PRESERVING ITS VERSION OF ACCIDENTS
FOR WHICH IT WAS POTENTIALLY LIABLE COULD QUALIFY THOSE REPORTS UNDER
THE ACT.  THE RESULT WOULD BE THAT THE ACT WOULD COVER ANY SYSTEM OF
RECORDING EVENTS OR OCCURRENCES PROVIDED IT WAS "REGULAR" AND THOUGH IT
HAD LITTLE OR NOTHING TO DO WITH THE MANAGEMENT OR OPERATION OF THE
BUSINESS AS SUCH.  PREPARATION OF CASES FOR TRIAL BY VIRTUE OF BEING A
"BUSINESS" OR INCIDENTAL THERETO WOULD OBTAIN THE BENEFITS OF THIS
LIBERALIZED VERSION OF THE EARLY SHOP BOOK RULE.  THE PROBABILITY OF
TRUSTWORTHINESS OF RECORDS BECAUSE THEY WERE ROUTINE REFLECTIONS OF THE
DAY TO DAY OPERATIONS OF A BUSINESS WOULD BE FORGOTTEN AS THE BASIS OF
THE RULE.  SEE CONNER V. SEATTLE, R. & S. RY. CO., 56 WASH. 310, 312
313, 105 P. 634.  REGULARITY OF PREPARATION WOULD BECOME THE TEST
RATHER THAN THE CHARACTER OF THE RECORDS AND THEIR EARMARKS OF
RELIABILITY (CHESAPEAKE & DELAWARE CANAL CO. V. UNITED STATES, 250 U.S.
123, 128-129) ACQUIRED FROM THEIR SOURCE AND ORIGIN AND THE NATURE OF
THEIR COMPILATION.  WE CANNOT SO COMPLETELY EMPTY THE WORDS OF THE ACT
OF THEIR HISTORIC MEANING.  IF THE ACT IS TO BE EXTENDED TO APPLY NOT
ONLY TO A "REGULAR COURSE" OF A BUSINESS BUT ALSO TO ANY "REGULAR
COURSE" OF CONDUCT WHICH MAY HAVE SOME RELATIONSHIP TO BUSINESS,
CONGRESS NOT THIS COURT MUST EXTEND IT. SUCH A MAJOR CHANGE WHICH OPENS
WIDE THE DOOR TO AVOIDANCE OF CROSS-EXAMINATION SHOULD NOT BE LEFT TO
IMPLICATION.  NOR IS IT ANY ANSWER TO SAY THAT CONGRESS HAS PROVIDED IN
THE ACT THAT THE VARIOUS CIRCUMSTANCES OF THE MAKING OF THE RECORD
SHOULD AFFECT ITS WEIGHT, NOT ITS ADMISSIBILITY.  THAT PROVISION COMES
INTO PLAY ONLY IN CASE THE OTHER REQUIREMENTS OF THE ACT ARE MET. 

IN SHORT, IT IS MANIFEST THAT IN THIS CASE THOSE REPORTS ARE NOT FOR
THE SYSTEMATIC CONDUCT OF THE ENTERPRISE AS A RAILROAD BUSINESS. 
UNLIKE PAYROLLS, ACCOUNTS RECEIVABLE, ACCOUNTS PAYABLE, BILLS OF LADING
AND THE LIKE, THESE REPORTS ARE CALCULATED FOR USE ESSENTIALLY IN THE
COURT, NOT IN THE BUSINESS.  THEIR PRIMARY UTILITY IS IN LITIGATING,
NOT IN RAILROADING. 

IT IS, OF COURSE, NOT FOR US TO TAKE THESE REPORTS OUT OF THE ACT IF
CONGRESS HAS PUT THEM IN. BUT THERE IS NOTHING IN THE BACKGROUND OF THE
LAW ON WHICH THIS ACT WAS BUILT OR IN ITS LEGISLATIVE HISTORY WHICH
SUGGESTS FOR A MOMENT THAT THE BUSINESS OF PREPARING CASES FOR TRIAL
SHOULD BE INCLUDED.  IN THIS CONNECTION IT SHOULD BE NOTED THAT THE ACT
OF MAY 6, 1910, 36 STAT. 350, 45 U.S.C. SEC. 38, REQUIRES OFFICERS OF
COMMON CARRIERS BY RAIL TO MAKE UNDER OATH MONTHLY REPORTS OF RAILROAD
ACCIDENTS TO THE INTERSTATE COMMERCE COMMISSION, SETTING FORTH THE
NATURE AND CAUSES OF THE ACCIDENTS AND THE CIRCUMSTANCES CONNECTED
THEREWITH.  AND THE SAME ACT (45 U.S.C. SEC. 40) GIVES THE COMMISSION
AUTHORITY TO INVESTIGATE AND TO MAKE REPORTS UPON SUCH ACCIDENTS.  IT
IS PROVIDED, HOWEVER, THAT "NEITHER THE REPORT REQUIRED BY SECTION 38
OF THIS TITLE NOR ANY REPORT OF THE INVESTIGATION PROVIDED FOR IN
EVIDENCE OR USED FOR ANY PURPOSE IN ANY SUIT OR ACTION FOR DAMAGES
GROWING OUT OF ANY MATTER MENTIONED IN SAID REPORT OR INVESTIGATION." 
45 U.S.C. SEC. 41.  A SIMILAR PROVISION (36 STAT. 916, 54 STAT. 148, 45
U.S.C. SEC. 33) BARS THE USE IN LITIGATION OF REPORTS CONCERNING
ACCIDENTS RESULTING FROM THE FAILURE OF A LOCOMOTIVE BOILER OR ITS
APPURTENANCES.  45 U.S.C. SECS. 32, 33.  THAT LEGISLATION REVEALS AN
EXPLICIT CONGRESSIONAL POLICY TO RULE OUT REPORTS OF ACCIDENTS WHICH
CERTAINLY HAVE AS GREAT A CLAIM TO OBJECTIVITY AS THE STATEMENT SOUGHT
TO BE ADMITTED IN THE PRESENT CASE.  WE CAN HARDLY SUPPOSE THAT
CONGRESS MODIFIED OR QUALIFIED BY IMPLICATION THESE LONG STANDING
STATUTES WHEN IT PERMITTED RECORDS MADE "IN THE REGULAR COURSE" OF
BUSINESS TO BE INTRODUCED.  NOR CAN WE ASSUME THAT CONGRESS HAVING
EXPRESSLY PROHIBITED THE USE OF THE COMPANY'S REPORTS ON ITS ACCIDENTS
IMPLIEDLY ALTERED THAT POLICY WHEN IT CAME TO REPORTS BY ITS EMPLOYEES
TO THEIR SUPERIORS.  THE INFERENCE IS WHOLLY THE OTHER WAY. 

THE SEVERAL HUNDRED YEARS OF HISTORY BEHIND THE ACT (WIGMORE, SUPRA,
SECS. 1517-1520) INDICATE THE NATURE OF THE REFORMS WHICH IT WAS
DESIGNED TO EFFECT.  IT SHOULD OF COURSE BE LIBERALLY INTERPRETED SO AS
TO DO AWAY WITH THE ANACHRONISTIC RULES WHICH GAVE RISE TO ITS NEED AND
AT WHICH IT WAS AIMED.  BUT "REGULAR COURSE" OF BUSINESS MUST FIND ITS
MEANING IN THE INHERENT NATURE OF THE BUSINESS IN QUESTION AND IN THE
METHODS SYSTEMATICALLY EMPLOYED FOR THE CONDUCT OF THE BUSINESS AS A
BUSINESS. 

II.  ONE OF RESPONDENT'S WITNESSES TESTIFIED ON CROSS-EXAMINATION
THAT HE HAD GIVEN A SIGNED STATEMENT TO ONE OF RESPONDENT'S LAWYERS. 
COUNSEL FOR PETITIONERS ASKED TO SEE IT.  THE COURT RULED THAT IF HE
CALLED FOR AND INSPECTED THE DOCUMENT, THE DOOR WOULD BE OPENED FOR
RESPONDENT TO OFFER THE STATEMENT IN EVIDENCE, IN WHICH CASE THE COURT
WOULD ADMIT IT.  SEE EDISON ELECTRIC LIGHT CO. V. U.S. ELECTRIC
LIGHTING CO., 45 F. 55, 59.  COUNSEL FOR PETITIONERS DECLINED TO
INSPECT THE STATEMENT AND TOOK AN EXCEPTION.  PETITIONERS CONTEND THAT
THAT RULING WAS REVERSIBLE ERROR IN LIGHT OF RULE 26(B) AND RULE 34 OF
THE RULES OF CIVIL PROCEDURE.  WE DO NOT REACH THAT QUESTION.  SINCE
THE DOCUMENT WAS NOT MARKED FOR IDENTIFICATION AND IS NOT A PART OF THE
RECORD, WE DO NOT KNOW WHAT ITS CONTENTS ARE.  IT IS THEREFORE
IMPOSSIBLE, AS STATED BY THE COURT BELOW, TO DETERMINE WHETHER THE
STATEMENT CONTAINED REMARKS WHICH MIGHT SERVE TO IMPEACH THE WITNESS. 
ACCORDINGLY, WE CANNOT SAY THAT THE RULING WAS PREJUDICIAL EVEN IF WE
ASSUME IT WAS ERRONEOUS.  MERE "TECHNICAL ERRORS" WHICH DO NOT "AFFECT
THE SUBSTANTIAL RIGHTS OF THE PARTIES" ARE NOT SUFFICIENT TO SET ASIDE
A JURY VERDICT IN AN APPELLATE COURT.  40 STAT. 1181, 28 U.S.C. SEC.
391.  HE WHO SEEKS TO HAVE A JUDGMENT SET ASIDE BECAUSE OF AN ERRONEOUS
RULING CARRIES THE BURDEN OF SHOWING THAT PREJUDICE RESULTED.  THAT
BURDEN HAS NOT BEEN MAINTAINED BY PETITIONERS. 

III.  THE FINAL QUESTION PRESENTED BY THIS CASE RELATES TO THE BURDEN
OF PROVING CONTRIBUTORY NEGLIGENCE.  AS WE HAVE NOTED, TWO OF THE
CAUSES OF ACTION WERE BASED ON THE COMMON LAW AND TWO ON A
MASSACHUSETTS STATUTE.  THE COURT, WITHOUT DISTINGUISHING BETWEEN THEM,
CHARGED THAT PETITIONERS HAD THE BURDEN OF PROVING CONTRIBUTORY
NEGLIGENCE.  TO THIS PETITIONERS EXCEPTED, LIKEWISE WITHOUT
DISTINGUISHING BETWEEN THE DIFFERENT CAUSES OF ACTION.  AND AGAIN
WITHOUT MAKING ANY SUCH DISTINCTION, PETITIONERS REQUESTED THE COURT TO
CHARGE THAT THE BURDEN WAS ON RESPONDENT.  THIS WAS REFUSED AND AN
EXCEPTION NOTED. 

RESPONDENT CONTENDS, IN THE FIRST PLACE, THAT THE CHARGE WAS CORRECT
BECAUSE OF THE FACT THAT RULE 8(C) OF THE RULES OF CIVIL PROCEDURE
MAKES CONTRIBUTORY NEGLIGENCE AN AFFIRMATIVE DEFENSE.  WE DO NOT
AGREE.  RULE 8(C) COVERS ONLY THE MANNER OF PLEADING.  THE QUESTION OF
THE BURDEN OF ESTABLISHING CONTRIBUTORY NEGLIGENCE IS A QUESTION OF
LOCAL LAW WHICH FEDERAL COURTS IN DIVERSITY OF CITIZENSHIP CASES (ERIE
R. CO. V. TOMPKINS, 304 U.S. 64) MUST APPLY.  CITIES SERVICE OIL CO. V.
DUNLAP, 308 U.S. 208; SAMPSON V. CHANNELL, 110 F.2D 754.  AND SEE
CENTRAL VERMONT RY. CO. V. WHITE, 238 U.S. 507, 512. 

SECONDLY, RESPONDENT CONTENDS THAT THE COURTS BELOW APPLIED THE RULE
OF CONFLICT OF LAWS WHICH OBTAINS IN NEW YORK.  SO FAR AS THE CAUSES OF
ACTION BASED ON THE MASSACHUSETTS STATUTE ARE CONCERNED, WE WILL NOT
DISTURB THE HOLDING BELOW THAT AS A MATTER OF NEW YORK CONFLICT OF LAWS
WHICH THE TRIAL COURT WAS BOUND TO APPLY (KLAXON CO. V. STENTOR CO.,
313 U.S. 487) PETITIONERS HAD THE BURDEN OF PROVING CONTRIBUTORY
NEGLIGENCE.  THAT RULING WAS BASED ON FITZPATRICK V. INTERNATIONAL RY.
CO., 252 N.Y. 127, 169 N.E. 112, WHICH INVOLVED AN ACTION BROUGHT IN
NEW YORK UNDER A STATUTE OF THE PROVINCE OF ONTARIO.  THAT STATUTE GAVE
A PLAINTIFF IN A NEGLIGENCE ACTION, THOUGH GUILTY OF CONTRIBUTORY
NEGLIGENCE, A RECOVERY IF THE DEFENDANT WAS MORE NEGLIGENT, THE DAMAGES
BEING PROPORTIONED TO THE DEGREE OF FAULT IMPUTABLE TO THE DEFENDANT. 
THE NEW YORK COURT OF APPEALS HELD THAT THE NEW YORK COURTS WERE
JUSTIFIED IN APPLYING THE ONTARIO RULE, GROWING OUT OF THE STATUTE,
THAT THE BURDEN WAS ON THE DEFENDANT TO SHOW CONTRIBUTORY NEGLIGENCE. 
THE MASSACHUSETTS STATUTE ON WHICH TWO OF THE PRESENT CAUSES OF ACTION
WERE FOUNDED MAKES A RAILROAD CORPORATION LIABLE FOR ITS NEGLECT IN
GIVING CERTAIN SIGNALS.  IT PROVIDES THAT TORT DAMAGES FOR INJURIES OR
DEATH FROM COLLISIONS AT CROSSINGS MAY BE RECOVERED WHERE SUCH NEGLECT
"CONTRIBUTED" TO THE INJURY, "UNLESS IT IS SHOWN THAT, IN ADDITION TO A
MERE WANT OF ORDINARY CARE, THE PERSON INJURED  ...  WAS, AT THE TIME
OF THE COLLISION, GUILTY OF GROSS OR WILFUL NEGLIGENCE, OR WAS ACTING
IN VIOLATION OF THE LAW, AND THAT SUCH GROSS OR WILFUL NEGLIGENCE OR
UNLAWFUL ACT CONTRIBUTED TO THE INJURY."  MASS. GEN. L. (1932) C. 160,
SEC. 2342.  THAT STATUTE, LIKE THE ONTARIO STATUTE, CREATES RIGHTS NOT
RECOGNIZED AT COMMON LAW.  BROOKS V. FITCHBURG & L. ST. RY. CO., 200
MASS. 8, 86 N.E. 289; DUGGAN V. BAY STATE STREET RY. CO., 230 MASS.
370, 381-382, 119 N.E. 757; SULLIVAN V. HUSTIS, 237 MASS. 441, 446, 130
N.E. 247; LEWIS V. BOSTON & MAINE RAILROAD, 263 MASS. 87, 91, 160 N.E.
663.  AND IN ACTIONS UNDER IT THE BURDEN OF PROVING CONTRIBUTORY
NEGLICENCE IS ON THE DEFENDANT.  MANLEY V. BOSTON & MAINE RAILROAD, 159
MASS. 493, 34 N.E. 951; PHELPS V. NEW ENGLAND R. CO., 172 MASS. 98, 51
N.E. 522; MCDONALD V. NEW YORK C. & H.R.R. CO., 186 MASS. 474, 72 N.E.
55; KENNY V. BOSTON & MAINE RAILROAD, 188 MASS. 127, 74 N.E. 309.  AND
SEE MASS. GEN. L. (1932) C. 231, SEC. 85.  MOREOVER, THE MEASURE OF
DAMAGES FOR DEATH IS "THE SUM OF NOT LESS THAN FIVE HUNDRED NOR MORE
THAN TEN THOUSAND DOLLARS, TO BE ASSESSED WITH REFERENCE TO THE DEGREE
OF CULPABILITY OF THE" RAILROAD.  MASS. GEN. L. (1932) C. 229, SEC. 3. 
WE ARE REFERRED TO NO NEW YORK DECISION INVOLVING THE POINT.  THE
PROPRIETY OF APPLYING THE RULE OF THE FITZPATRICK CASE TO THE CAUSES OF
ACTION BASED ON THE MASSACHUSETTS STATUTE MAY BE ARGUABLE.  BUT IT IS
NOT THE TYPE OF RULING UNDER ERIE R. CO. V. TOMPKINS, SUPRA, WHICH WE
WILL READILY DISTURB.  WHERE THE LOWER FEDERAL COURTS ARE APPLYING
LOCAL LAW, WE WILL NOT SET ASIDE THEIR RULING EXCEPT ON A PLAIN SHOWING
OF ERROR. 

THE QUESTION WHICH IS RAISED ON THE COMMON LAW COUNTS IS MORE
SERIOUS.  THE COURT BELOW DID NOT DISTINGUISH BETWEEN THE CONFLICT OF
LAWS RULE IN A CASE LIKE THE FITZPATRICK CASE AND THE RULE WHICH
APPARENTLY OBTAINS IN CASES WHERE THE FOREIGN CAUSE OF ACTION IS NOT
FOUNDED ON SUCH A STATUTE.  IT WAS INTIMATED IN THE FITZPATRICK CASE
(252 N.Y. P. 135) AND STATED IN OTHER CASES IN NEW YORK'S INTERMEDIATE
APPELLATE COURTS (WRIGHT V. PALMISON, 237 APP. DIV. 22, 260 N.Y.S. 812;
CLARK V. HARNISCHFEGER SALES CORP., 238 APP. DIV. 493, 495, 264 N.Y.S.
873) THAT IN THE LATTER SITUATION THE BURDEN OF PROVING FREEDOM FROM
CONTRIBUTORY NEGLIGENCE IS ON THE PLAINTIFF.  FITZPATRICK V.
INTERNATIONAL RY. CO., SUPRA, P. 134.  BUT WE DO NOT REVERSE AND REMAND
THE CASE TO THE COURT BELOW SO THAT IT MAY EXAMINE AND MAKE AN
APPROPRIATE APPLICATION OF THE NEW YORK LAW ON THE COMMON LAW COUNTS,
FOR THE FOLLOWING REASON:  AS WE HAVE NOTED, PETITIONERS IN THEIR
EXCEPTIONS TO THE CHARGE GIVEN AND IN THE REQUESTED CHARGE DID NOT
DIFFERENTIATE BETWEEN THE CAUSES OF ACTION BASED ON THE MASSACHUSETTS
STATUTE AND THOSE ON THE COMMON LAW.  EVEN IF WE ASSUME THAT THE CHARGE
ON THE LATTER WAS ERRONEOUS, WE CANNOT SAY THAT THE CHARGE WAS
INCORRECT SO FAR AS THE STATUTORY CAUSES OF ACTION WERE CONCERNED. 
LIKEWISE WE MUST ASSUME THAT IT WOULD HAVE BEEN ERROR TO GIVE THE
REQUESTED CHARGE ON THE STATUTORY CAUSES OF ACTION EVEN THOUGH WE
ACCEPT IT AS THE CORRECT CHARGE ON THE OTHERS.  UNDER THESE FACTS A
GENERAL EXCEPTION IS NOT SUFFICIENT.  IN FAIRNESS TO THE TRIAL COURT
AND TO THE PARTIES, OBJECTIONS TO A CHARGE MUST BE SUFFICIENTLY
SPECIFIC TO BRING INTO FOCUS THE PRECISE NATURE OF THE ALLEGED ERROR. 
WHERE A PARTY MIGHT HAVE OBTAINED THE CORRECT CHARGE BY SPECIFICALLY
CALLING THE ATTENTION OF THE TRIAL COURT TO THE ERROR AND WHERE PART OF
THE CHARGE WAS CORRECT, HE MAY NOT THROUGH A GENERAL EXCEPTION OBTAIN A
NEW TRIAL.  SEE LINCOLN V. CLAFLIN, 7 WALL.  132, 139; BEAVER V.
TAYLOR, 93 U.S. 46, 54-55; MOBILE & MONTGOMERY RY. CO. V. JUREY, 111
U.S. 584, 596; MCDERMOTT V. SEVERE, 202 U.S. 600, 611; NORFOLK & W. RY.
CO. V. EARNEST, 229 U.S. 114, 122; PENNSYLVANIA R. CO. V. MINDS, 250
U.S. 368, 375.  THAT LONG STANDING RULE OF FEDERAL PRACTICE IS AS
APPLICABLE IN THIS TYPE OF CASE AS IN OTHERS.  THAT RULE CANNOT BE
AVOIDED HERE BY REASON OF THE REQUESTED CHARGE.  FOR, AS WE HAVE SAID,
IT WAS AT MOST ONLY PARTIALLY CORRECT AND WAS NOT SUFFICIENTLY
DISCRIMINATING.  AFFIRMED. 

FN1  "IN ANY COURT OF THE UNITED STATES AND IN ANY COURT ESTABLISHED
BY ACT OF CONGRESS, ANY WRITING OR RECORD, WHETHER IN THE FORM OF AN
ENTRY IN A BOOK OR OTHERWISE, MADE AS A MEMORANDUM OR RECORD OF ANY
ACT, TRANSACTION, OCCURRENCE, OR EVENT, SHALL BE ADMISSIBLE AS EVIDENCE
OF SAID ACT, TRANSACTION, OCCURRENCE, OR EVENT, IF IT SHALL APPEAR THAT
IT WAS MADE IN THE REGULAR COURSE OF ANY BUSINESS, AND THAT IT WAS THE
REGULAR COURSE OF SUCH BUSINESS TO MAKE SUCH MEMORANDUM OR RECORD AT
THE TIME OF SUCH ACT, TRANSACTION, OCCURRENCE, OR EVENT OR WITHIN A
REASONABLE TIME THEREAFTER.  ALL OTHER CIRCUMSTANCES OF THE MAKING OF
SUCH WRITING OR RECORD, INCLUDING LACK OF PERSONAL KNOWLEDGE BY THE
ENTRANT OR MAKER, MAY BE SHOWN TO AFFECT ITS WEIGHT, BUT THEY SHALL NOT
AFFECT ITS ADMISSIBILITY.  THE TERM 'BUSINESS' SHALL INCLUDE BUSINESS,
PROFESSION, OCCUPATION, AND CALLING OF EVERY KIND." 

FN2  THE PROBLEM WAS WELL STATED BY JUDGE LEARNED HAND IN
MASSACHUSETTS BONDING & INS. CO. V. NORWICH PHARMACAL CO., 18 F.2D 934,
937:  "THE ROUTINE OF MODERN AFFAIRS, MERCANTILE, FINANCIAL AND
INDUSTRIAL, IS CONDUCTED WITH SO EXTREME A DIVISION OF LABOR THAT THE
TRANSACTIONS CANNOT BE PROVED AT FIRST HAND WITHOUT THE CONCURRENCE OF
PERSONS, EACH OF WHOM CAN CONTRIBUTE NO MORE THAN A SLIGHT PART, AND
THAT PART NOT DEPENDENT ON HIS MEMORY OF THE EVENT.  RECORDS, AND
RECORDS ALONE, ARE THEIR ADEQUATE REPOSITORY, AND ARE IN PRACTICE
ACCEPTED AS ACCURATE UPON THE FAITH OF THE ROUTINE ITSELF, AND OF THE
SELF-CONSISTENCY OF THEIR CONTENTS.  UNLESS THEY CAN BE USED IN COURT
WITHOUT THE TASK OF CALLING THOSE WHO AT ALL STAGES HAD A PART IN THE
TRANSACTIONS RECORDED, NOBODY NEED EVER PAY A DEBT, IF ONLY HIS
CREDITOR DOES A LARGE ENOUGH BUSINESS." 

FN3  THUS THE REPORT OF THE SENATE COMMITTEE ON THE JUDICIARY
INCORPORATES THE RECOMMENDATION OF THE ATTORNEY GENERAL WHO STATED IN
SUPPORT OF THE LEGISLATION, "THE OLD COMMON-LAW RULE REQUIRES THAT
EVERY BOOK ENTRY BE IDENTIFIED BY THE PERSON MAKING IT.  THIS IS
EXCEEDINGLY DIFFICULT, IF NOT IMPOSSIBLE, IN THE CASE OF AN INSTITUTION
EMPLOYING A LARGE BOOKKEEPING STAFF, PARTICULARLY WHEN THE ENTRIES ARE
MADE BY MACHINE.  IN A RECENT CRIMINAL CASE THE GOVERNMENT WAS
PREVENTED FROM MAKING OUT A PRIMA-FACIE CASE BY A RULING THAT ENTRIES
IN THE BOOKS OF A BANK, MADE IN THE REGULAR COURSE OF BUSINESS, WERE
NOT ADMISSIBLE IN EVIDENCE UNLESS THE SPECIFIC BOOKKEEPER WHO MADE THE
ENTRY COULD IDENTIFY IT.  SINCE THE BANK EMPLOYED 18 BOOKKEEPERS, AND
THE ENTRIES WERE MADE BY BOOKKEEPING MACHINES, THIS WAS IMPOSSIBLE." 
S. REP. NO. 1965, 74TH CONG., 2D SESS., PP. 1-2. 

FN4  IT IS CLEAR THAT IT DOES NOT COME WITHIN THE EXCEPTIONS AS TO
DECLARATIONS BY A DECEASED WITNESS.  SEE SHEPARD V. UNITED STATES, 290
U.S. 96; WIGMORE, SUPRA, CHS.  XLIX-LIV. 
..END :






U.S. V. BROOKS-CALLAWAY CO., 318 U.S. 120 


NO. 366.  ARGUED JANUARY 4, 1943.  - DECIDED FEBRUARY 1, 1943.  - 97
CT.CLS.  689, REVERSED. 


UNDER THE PROVISO TO ARTICLE 9 OF THE STANDARD FORM OF GOVERNMENT
CONSTRUCTION CONTRACT, WHICH PROVIDES THAT THE CONTRACTOR SHALL NOT BE
CHARGED WITH LIQUIDATED DAMAGES BECAUSE OF DELAYS DUE TO UNFORESEEABLE
CAUSES, INCLUDING FLOODS, THE REMISSION OF LIQUIDATED DAMAGES IS NOT
WARRANTED WHERE THE "FLOOD" WAS NOT UNFORESEEABLE BUT WAS DUE TO
CONDITIONS NORMALLY TO BE EXPECTED.  P. 122. 

UNITED STATES V. BROOKS-CALLAWAY CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 317 U.S. 615, TO REVIEW A JUDGMENT AGAINST THE UNITED
STATES IN A SUIT UPON A CONTRACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO DECIDE WHETHER THE PROVISO TO ARTICLE 9 OF THE
STANDARD FORM OF GOVERNMENT CONSTRUCTION CONTRACT N1, WHICH PROVIDES
THAT A CONTRACTOR SHALL NOT BE CHARGED WITH LIQUIDATED DAMAGES BECAUSE
OF DELAYS DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT
THE FAULT OF THE CONTRACTOR, INCLUDING FLOODS, REQUIRES THE REMISSION
OF LIQUIDATED DAMAGES FOR DELAY CAUSED BY HIGH WATER FOUND TO HAVE BEEN
CUSTOMARY AND FORESEEABLE BY THE CONTRACTING OFFICER. 

RESPONDENT BROUGHT THIS SUIT IN THE COURT OF CLAIMS TO RECOVER THE
SUM OF $3,900 WHICH WAS DEDUCTED FROM THE CONTRACT PRICE AS LIQUIDATED
DAMAGES FOR DELAY IN THE COMPLETION OF A CONTRACT FOR THE CONSTRUCTION
OF LEVEES ON THE MISSISSIPPI RIVER.  THE CONTRACT WAS NOT COMPLETED
UNTIL 290 DAYS AFTER THE DATE SET, AND LIQUIDATED DAMAGES IN THE AMOUNT
OF $5,800(FIGURED AT THE CONTRACT RATE OF $20 FOR EACH DAY OF DELAY)
WERE ORIGINALLY ASSESSED.  RESPONDENT PROTESTED, AND UPON CONSIDERATION
THE CONTRACTING OFFICER FOUND THAT RESPONDENT HAD BEEN DELAYED A TOTAL
OF 278 DAYS BY HIGH WATER, 183 DAYS OF WHICH WERE DUE TO CONDITIONS
NORMALLY TO BE EXPECTED AND 95 OF WHICH WERE UNFORESEEABLE.  HE
RECOMMENDED THAT LIQUIDATED DAMAGES IN THE AMOUNT OF
$1,900(REPRESENTING 95 DAYS OF UNFORESEEABLE DELAY AT $20 PER DAY) BE
REMITTED AND THAT THE BALANCE OF $3,900 BE RETAINED.  PAYMENT WAS MADE
ON THIS BASIS.  FN2 

THE COURT OF CLAIMS HELD THAT LIQUIDATED DAMAGES SHOULD NOT HAVE BEEN
ASSESSED FOR ANY OF THE 278 DAYS OF DELAY CAUSED BY HIGH WATER BECAUSE
THE HIGH WATER WAS A "FLOOD" AND UNDER THE PROVISO ALL FLOODS WERE
UNFORESEEABLE PER SE.  ACCORDINGLY, IT GAVE JUDGMENT IN RESPONDENT'S
FAVOR IN THE SUM OF $3,660.  FN3  NO FINDINGS WERE MADE AS TO WHETHER
ANY OF THE HIGH WATER WAS IN FACT FORESEEABLE.  WE GRANTED CERTIORARI
BECAUSE THE CASE PRESENTS AN IMPORTANT QUESTION IN THE INTERPRETATION
OF THE STANDARD FORM OF GOVERNMENT CONSTRUCTION CONTRACT. 

WE BELIEVE THAT THE CONSTRUCTION ADOPTED BELOW IS CONTRARY TO THE
PURPOSE AND SENSE OF THE PROVISO AND MAY EASILY PRODUCE UNREASONABLE
RESULTS.  THE PURPOSE OF THE PROVISO IS TO REMOVE UNCERTAINTY AND
NEEDLESS LITIGATION BY DEFINING WITH SOME PARTICULARITY THE OTHERWISE
HAZY AREA OF UNFORESEEABLE EVENTS WHICH MIGHT EXCUSE NONPERFORMANCE
WITHIN THE CONTRACT PERIOD.  THUS CONTRACTORS KNOW THEY ARE NOT TO BE
PENALIZED FOR UNEXPECTED IMPEDIMENTS TO PROMPT PERFORMANCE, AND, SINCE
THEIR BIDS CAN BE BASED ON FORESEEABLE AND PROBABLE, RATHER THAN
POSSIBLE HINDRANCES, THE GOVERNMENT SECURES THE BENEFIT OF LOWER BIDS
AND AN ENLARGED SELECTION OF BIDDERS. 

TO AVOID A NARROW CONSTRUCTION OF THE TERM, "UNFORESEEABLE CAUSES,"
LIMITING IT PERHAPS TO ACTS OF GOD, THE PROVISO SETS FORTH SOME
ILLUSTRATIONS OF UNFORESEEABLE INTERFERENCES.  THESE IT DESCRIBES AS
"INCLUDING, BUT NOT RESTRICTED TO, ACTS OF GOD, OR OF THE PUBLIC ENEMY,
ACTS OF THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE
RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, AND UNUSUALLY SEVERE WEATHER,
OR DELAYS OF SUBCONTRACTORS DUE TO SUCH CAUSES."  THE PURPOSE OF THE
PROVISO TO PROTECT THE CONTRACTOR AGAINST THE UNEXPECTED, AND ITS
GRAMMATICAL SENSE, BOTH MILITATE AGAINST HOLDING THAT THE LISTED EVENTS
ARE ALWAYS TO BE REGARDED AS UNFORESEEABLE, NO MATTER WHAT THE
ATTENDANT CIRCUMSTANCES ARE.  RATHER, THE ADJECTIVE "UNFORESEEABLE"
MUST MODIFY EACH EVENT SET OUT IN THE "INCLUDING" PHRASE.  OTHERWISE,
ABSURD RESULTS ARE PRODUCED, AS WAS WELL POINTED OUT BY JUDGE MADDEN,
DISSENTING BELOW: 

"  ...  NOT EVERY FIRE OR QUARANTINE OR STRIKE OR FREIGHT EMBARGO
SHOULD BE AN EXCUSE FOR DELAY UNDER THE PROVISO.  THE CONTRACT MIGHT BE
ONE TO EXCAVATE FOR A BUILDING IN AN AREA WHERE A COAL MINE HAD BEEN ON
FIRE FOR YEARS, WELL KNOWN TO EVERYBODY, INCLUDING THE CONTRACTOR, AND
WHERE A LARGE ELEMENT OF THE CONTRACT PRICE WAS ATTRIBUTABLE TO THIS
KNOWN DIFFICULTY.  A QUARANTINE, OR FREIGHT EMBARGO, MAY HAVE BEEN IN
EFFECT FOR MANY YEARS AS A PERMANENT POLICY OF THE CONTROLLING
GOVERNMENT.  A STRIKE MAY BE AN OLD AND CHRONIC ONE WHOSE SETTLEMENT
WITHIN AN EARLY PERIOD IS NOT EXPECTED.  IN ANY OF THESE SITUATIONS
THERE WOULD BE NO POSSIBLE REASON WHY THE CONTRACTOR, WHO OF COURSE
ANTICIPATED THESE OBSTACLES IN HIS ESTIMATE OF TIME AND COST, SHOULD
HAVE HIS TIME EXTENDED BECAUSE OF THEM. 

"THE SAME IS TRUE OF HIGH WATER OR 'FLOODS.'  THE NORMALLY EXPECTED
HIGH WATER IN A STREAM OVER THE COURSE OF A YEAR, BEING FORESEEABLE, IS
NOT AN 'UNFORESEEABLE' CAUSE OF DELAY.  HERE PLAINTIFF'S VICE-PRESIDENT
TESTIFIED THAT IN MAKING ITS BID PLAINTIFF TOOK INTO CONSIDERATION THE
FACT THAT THERE WOULD BE HIGH WATER AND THAT WHEN THERE WAS, WORK ON
THE LEVEE WOULD STOP.  ...  " FN4 

A LOGICAL APPLICATION OF THE DECISION BELOW WOULD EVEN EXCUSE DELAYS
FROM THE CAUSES LISTED ALTHOUGH THEY WERE WITHIN THE CONTROL, OR CAUSED
BY THE FAULT OF THE CONTRACTOR, AND THIS DESPITE THE PROVISO'S
REQUIREMENT THAT THE EVENTS BE "BEYOND THE CONTROL AND WITHOUT THE
FAULT OR NEGLIGENCE OF THE CONTRACTOR."  IF FIRE IS ALWAYS AN EXCUSE, A
CONTRACTOR IS FREE TO USE INFLAMMABLE MATERIALS IN A TINDERBOX FACTORY
AND ESCAPE ANY DAMAGES FOR DELAY DUE TO A RESULTING FIRE.  ANY
CONTRACTOR COULD SHUT HIS EYES TO THE EXTREMEST PROBABILITY THAT ANY OF
THE LISTED EVENTS MIGHT OCCUR, SUBMIT A LOW BID, AND THEN TAKE HIS OWN
GOOD TIME TO FINISH THE WORK FREE OF THE COMPULSION OF MOUNTING
DAMAGES, THUS MAKING THE TIME FIXED FOR COMPLETION PRACTICALLY
MEANINGLESS AND DEPRIVING THE GOVERNMENT OF ALL RECOMPENSE FOR THE
DELAY. 

WE INTIMATE NO OPINION ON WHETHER THE HIGH WATER AMOUNTED TO A
"FLOOD" WITHIN THE MEANING OF THE PROVISO.  WHETHER HIGH WATER OR
FLOOD, THE SENSE OF THE PROVISO REQUIRES IT TO BE UNFORESEEABLE BEFORE
REMISSION OF LIQUIDATED DAMAGES FOR DELAY IS WARRANTED.  THE
CONTRACTING OFFICER FOUND THAT 183 DAYS OF DELAY CAUSED BY HIGH WATER
WERE DUE TO CONDITIONS NORMALLY TO BE EXPECTED.  NO APPEAL APPEARS TO
HAVE BEEN TAKEN FROM HIS DECISION TO THE HEAD OF THE DEPARTMENT, AND IT
IS NOT CLEAR WHETHER HIS FINDINGS WERE COMMUNICATED TO RESPONDENT SO
THAT IT MIGHT HAVE APPEALED.  THE COURT OF CLAIMS DID NOT DETERMINE
WHETHER RESPONDENT WAS CONCLUDED BY THE FINDINGS OF THE CONTRACTING
OFFICER UNDER THE SECOND PROVISO TO ARTICLE 9,  FN5  AND NOT HAVING
MADE THIS THRESHOLD DETERMINATION, OF COURSE MADE NO FINDINGS ITSELF AS
TO FORESEEABILITY.  WE THINK THESE MATTERS SHOULD BE DETERMINED IN THE
FIRST INSTANCE BY THE COURT OF CLAIMS.  ACCORDINGLY THE JUDGMENT IS
REVERSED AND THE CAUSE REMANDED WITH INSTRUCTIONS TO DETERMINE WHETHER
RESPONDENT IS CONCLUDED BY THE FINDINGS OF THE CONTRACTING OFFICER,
AND, IF NOT, FOR A FINDING BY THE COURT WHETHER THE 183 DAYS OF HIGH
WATER OR ANY PART OF THAT TIME WERE IN FACT FORESEEABLE.  REVERSED. 

FN1  IN GENERAL, ARTICLE 9 GIVES THE GOVERNMENT THE OPTION OF
TERMINATING THE CONTRACTOR'S RIGHT TO PROCEED, OR OF ALLOWING HIM TO
PROCEED SUBJECT TO LIQUIDATED DAMAGES IF HE FAILS TO PROCEED WITH
DILIGENCE OR TO COMPLETE THE WORK IN TIME.  THE FULL TEXT OF THE
PROVISO IS: 

"  ...  PROVIDED, THAT THE RIGHT OF THE CONTRACTOR TO PROCEED SHALL
NOT BE TERMINATED OR THE CONTRACTOR CHARGED WITH LIQUIDATED DAMAGES
BECAUSE OF ANY DELAYS IN THE COMPLETION OF THE WORK DUE TO
UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR
NEGLIGENCE OF THE CONTRACTOR, INCLUDING, BUT NOT RESTRICTED TO, ACTS OF
GOD, OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, FIRES, FLOODS,
EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, AND
UNUSUALLY SEVERE WEATHER OR DELAYS OF SUBCONTRACTORS DUE TO SUCH
CAUSES:  ...  " 

FN2  THE CONTRACTING OFFICER FOUND THAT THE REMAINING DELAY OF 12
DAYS (THE DIFFERENCE BETWEEN THE TOTAL DELAY OF 290 DAYS AND THE 278
DAYS DUE TO HIGH WATER) WAS NOT EXCUSABLE, AS CLAIMED BY RESPONDENT, ON
ACCOUNT OF THE GOVERNMENT'S FAILURE TO SECURE A NECESSARY RIGHT OF WAY,
OR ON ACCOUNT OF THE REQUIREMENT BY THE CONTRACTING OFFICER THAT
RESPONDENT BUILD A TIE-IN LEVEE.  ON THESE POINTS THE COURT BELOW
SUSTAINED THE CONCLUSIONS OF THE CONTRACTING OFFICER.  RESPONDENT HAS
NOT APPEALED AND THIS PHASE OF THE CASE IS NOT BEFORE US. 

FN3  97 CT. CLS. 689. 

FN4  97 CT. CLS. 701, 702. 

FN5  THE SECOND PROVISO TO ARTICLE 9 IMMEDIATELY FOLLOWS THE
UNFORESEEABILITY PROVISO AND STATES: 

"PROVIDED FURTHER, THAT THE CONTRACTOR SHALL WITHIN TEN DAYS FROM THE
BEGINNING OF ANY SUCH DELAY NOTIFY THE CONTRACTING OFFICER IN WRITING
OF THE CAUSES OF DELAY, WHO SHALL ASCERTAIN THE FACTS AND THE EXTENT OF
THE DELAY, AND HIS FINDINGS OF FACTS THEREON SHALL BE FINAL AND
CONCLUSIVE ON THE PARTIES THERETO, SUBJECT ONLY TO APPEAL, WITHIN
THIRTY DAYS, BY THE CONTRACTOR TO THE HEAD OF THE DEPARTMENT CONCERNED,
WHOSE DECISION ON SUCH APPEAL AS TO THE FACTS OF DELAY SHALL BE FINAL
AND CONCLUSIVE ON THE PARTIES HERETO." 
..END :











OVERSTREET V. NORTH SHORE CORP., 318 U.S. 125 


NO. 284.  ARGUED JANUARY 11, 1943.  - DECIDED FEBRUARY 1, 1943.  - 128
F.2D 450, REVERSED. 


1.  THE FAIR LABOR STANDARDS ACT IS APPLICABLE TO EMPLOYEES WHO ARE
ENGAGED IN INTERSTATE COMMERCE, BUT NOT TO THOSE WHOSE ACTIVITIES
MERELY AFFECT INTERSTATE COMMERCE.  P. 128. 

2.  THE FAIR LABOR STANDARDS ACT IS APPLICABLE TO EMPLOYEES (OF A
PRIVATE CORPORATION) WHO ARE ENGAGED IN THE OPERATION AND MAINTENANCE
OF A DRAWBRIDGE WHICH IS PART OF A TOLL ROAD USED EXTENSIVELY BY
PERSONS AND VEHICLES TRAVELING IN INTERSTATE COMMERCE, AND WHICH SPANS
AN INTERCOASTAL WATERWAY USED IN INTERSTATE COMMERCE.  P. 130. 

SO HELD AS TO ONE EMPLOYEE WHO ATTENDED TO THE RAISING AND LOWERING
OF THE BRIDGE; ANOTHER WHO WAS ENGAGED IN THE MAINTENANCE AND REPAIR OF
THE BRIDGE; AND A THIRD WHO COLLECTED TOLLS FROM USERS OF THE ROAD AND
BRIDGE. 

3.  THE APPLICABILITY OF THE FAIR LABOR STANDARDS ACT DOES NOT DEPEND
UPON THE NATURE OF THE EMPLOYER'S BUSINESS, BUT UPON THE CHARACTER OF
THE EMPLOYEES' ACTIVITIES.  P. 132. 

4.  THAT A CORPORATION WHICH OWNS AND OPERATES A TOLL ROAD AND
DRAWBRIDGE IS SUBJECT TO STATE TAXATION DOES NOT IMPLY THAT IT IS FREE
FROM FEDERAL REGULATION OR THAT ITS ROAD AND DRAWBRIDGE ARE NOT
INSTRUMENTALITIES OF INTERSTATE COMMERCE.  P. 132. 

OVERSTREET ET AL. V. NORTH SHORE CORPORATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 317 U.S. 606, TO REVIEW THE AFFIRMANCE OF A JUDGMENT (43
F.SUPP.  445) DISMISSING, AS TO THE PETITIONERS HERE, A COMPLAINT IN AN
ACTION FOR WAGES, OVERTIME, AND DAMAGES UNDER THE FAIR LABOR STANDARDS
ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS IS ANOTHER CASE IN WHICH WE MUST DEFINE THE SCOPE OF THE FAIR
LABOR STANDARDS ACT.  FN1  52 STAT. 1060, 29 U.S.C. SECS. 201 ET SEQ.
THE PRECISE QUESTION IS WHETHER PETITIONERS, WHO ARE ENGAGED IN
MAINTAINING OR OPERATING A TOLL ROAD AND A DRAWBRIDGE OVER A NAVIGABLE
WATERWAY WHICH TOGETHER CONSTITUTE A MEDIUM FOR THE INTERSTATE MOVEMENT
OF GOODS AND PERSONS, ARE "ENGAGED IN COMMERCE" WITHIN THE MEANING OF
SECS. 6 AND 7 OF THE ACT.  FN2 

PETITIONERS, TOGETHER WITH OTHERS NOT PARTIES TO THIS PETITION,
BROUGHT THIS ACTION AGAINST RESPONDENT AND A SUBSIDIARY UNDER SEC.
16(B) OF THE ACT FOR THE RECOVERY OF UNPAID MINIMUM WAGES, OVERTIME
COMPENSATION, AND LIQUIDATED DAMAGES.  RESPONDENT MOVED TO DISMISS AS
TO ALL THE PLAINTIFFS, AND THE MOTION AS TO PETITIONERS WAS GRANTED BY
THE DISTRICT COURT, LEAVE TO AMEND BEING GIVEN TO THE OTHER
COMPLAINANTS WHO ARE NOT BEFORE US.  43 F.SUPP.  445.  PETITIONERS
APPEALED TO THE CIRCUIT COURT OF APPEALS WHICH AFFIRMED THE ORDER OF
DISMISSAL.  128 F.2D 450.  THE IMPORTANT QUESTION RAISED AS TO THE
COVERAGE OF THE ACT CAUSED US TO GRANT CERTIORARI. 

THE RELEVANT FACTS ALLEGED IN THE COMPLAINT AS AMENDED, WHICH ARE TO
BE TAKEN AS TRUE FOR PURPOSES OF THE MOTION TO DISMISS, MAY BE
SUMMARIZED AS FOLLOWS: 

RESPONDENT OWNS AND OPERATES A TOLL ROAD AND A DRAWBRIDGE WHICH IS
PART OF THE ROAD.  THE TOLL ROAD CONNECTS UNITED STATES HIGHWAY NO. 17,
AN INTERSTATE ARTERIAL HIGHWAY, WITH FORT GEORGE ISLAND, WHICH LIES OFF
THE NORTHERN COAST OF FLORIDA, BEING SEPARATED FROM THE MAINLAND BY THE
INTERCOASTAL WATERWAY.  THE TOLL ROAD CROSSES THE WATERWAY AT SISTERS'
CREEK BY MEANS OF THE DRAWBRIDGE, WHICH MUST BE RAISED FREQUENTLY TO
PERMIT THE PASSAGE OF BOATS ENGAGED IN INTERSTATE COMMERCE.  THE TOLL
ROAD CONSTITUTES AN INTEGRAL PART OF THE HIGHWAY SYSTEM OF THE UNITED
STATES AND PROVIDES THE ONLY MEANS OF LAND COMMUNICATION BETWEEN FORT
GEORGE ISLAND AND THE FLORIDA MAINLAND.  IT IS USED EXTENSIVELY BY
PERSONS AND VEHICLES TRAVELING BETWEEN THE ISLAND AND POINTS OUTSIDE
FLORIDA IN INTERSTATE COMMERCE.  MAIL TO AND FROM OTHER STATES, AS WELL
AS GOODS PRODUCED OUTSIDE FLORIDA AND CONSIGNED TO MERCHANTS ON THE
ISLAND, ARE TRANSPORTED OVER THE TOLL ROAD.  EACH OF THE PETITIONERS
WAS EMPLOYED BY RESPONDENT IN CONNECTION WITH THE OPERATION OF THE TOLL
ROAD AND DRAWBRIDGE.  OVERSTREET OPERATED THE DRAWBRIDGE, RAISING IT
FOR THE PASSAGE OF BOATS THROUGH SISTERS' CREEK AND LOWERING IT FOR THE
RESUMPTION OF TRAFFIC OVER THE ROAD; BRAZLE WAS ENGAGED IN MAINTENANCE
AND REPAIR WORK ON THE ROAD AND THE BRIDGE; AND GARVIN SOLD AND
COLLECTED TOLL TICKETS FROM "VEHICLES USING SAID TOLL ROAD IN
INTERSTATE COMMERCE."  PETITIONERS RECEIVED NEITHER THE MINIMUM WAGES
NOR THE OVERTIME COMPENSATION PRESCRIBED BY SECS. 6 AND 7 OF THE ACT. 

WE THINK THESE ALLEGATIONS BRING PETITIONERS WITHIN THE COVERAGE OF
THE ACT AND ENTITLE THEM TO RECOVER IF PROVED. 

OUR STARTING POINT IS RESPONDENT'S CONCESSION THAT NO QUESTION OF
CONSTITUTIONAL POWER IS INVOLVED, BUT ONLY THE ASCERTAINMENT OF
CONGRESSIONAL INTENT, THAT IS, DID CONGRESS MEAN TO INCLUDE EMPLOYEES
SUCH AS PETITIONERS WITHIN THE ACT.  IN ARRIVING AT THAT INTENT IT MUST
BE REMEMBERED THAT CONGRESS DID NOT CHOOSE TO EXERT ITS POWER TO THE
FULL BY REGULATING INDUSTRIES AND OCCUPATIONS WHICH AFFECT INTERSTATE
COMMERCE.  SEE KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 522-23; WALLING
V. JACKSONVILLE PAPER CO., 317 U.S. 564.  RESPONDENT CONTENDS THAT
PETITIONERS ARE IN THIS CATEGORY, THAT THEIR ACTIVITIES ARE LOCAL AND
AT MOST ONLY AFFECT COMMERCE.  BUT THE POLICY OF CONGRESSIONAL
ABNEGATION WITH RESPECT TO OCCUPATIONS AFFECTING COMMERCE IS NO REASON
FOR NARROWLY CIRCUMSCRIBING THE PHRASE "ENGAGED IN COMMERCE."  WE SAID
IN THE JACKSONVILLE PAPER CO. CASE, SUPRA, "IT IS CLEAR THAT THE
PURPOSE OF THE ACT WAS TO EXTEND FEDERAL CONTROL IN THIS FIELD
THROUGHOUT THE FARTHEST REACHES OF THE CHANNELS OF INTERSTATE
COMMERCE."  AND IN DETERMINING WHAT CONSTITUTES "COMMERCE" OR "ENGAGED
IN COMMERCE" WE ARE GUIDED BY PRACTICAL CONSIDERATIONS.  JACKSONVILLE
PAPER CO. CASE, SUPRA, AND SEE ALSO SHANKS V. DELAWARE, L. & W.R. CO.,
239 U.S. 556, 558, DEALING WITH WHAT WILL SHORTLY BE POINTED OUT AS A
SIMILAR QUESTION IN THE COVERAGE OF THE FEDERAL EMPLOYERS' LIABILITY
ACT. 

A PRACTICAL TEST OF WHAT "ENGAGED IN INTERSTATE COMMERCE" MEANS HAS
BEEN EVOLVED IN CASES ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT (45 U.S.C. SECS. 51 ET SEQ.) WHICH, BEFORE THE 1939 AMENDMENT (SEE
53 STAT. 1404), APPLIED ONLY WHERE INJURY WAS SUFFERED WHILE THE
CARRIER WAS ENGAGING IN INTERSTATE OR FOREIGN COMMERCE AND THE INJURED
EMPLOYEE WAS EMPLOYED BY THE CARRIER "IN SUCH COMMERCE."  35 STAT. 65. 
IN DETERMINING THE REACH OF THAT PHRASE, THE CASE OF PEDERSEN V.
DELAWARE, L. & W.R. CO., 229 U.S. 146, HELD THAT AN EMPLOYEE WHO WAS
INJURED WHILE CARRYING BOLTS TO BE USED IN REPAIRING A RAILROAD BRIDGE
OVER WHICH INTERSTATE TRAINS PASSED WAS ENGAGED IN INTERSTATE COMMERCE
WITHIN THE MEANING OF THE LIABILITY ACT.  IT WAS POINTED OUT THAT
TRACKS AND BRIDGES WERE INDISPENSABLE TO INTERSTATE COMMERCE AND "THAT
THE WORK OF KEEPING SUCH INSTRUMENTALITIES IN A PROPER STATE OF REPAIR
WHILE THUS USED IS SO CLOSELY RELATED TO SUCH COMMERCE AS TO BE IN
PRACTICE AND IN LEGAL CONTEMPLATION A PART OF IT."  ID. AT P. 151.  SEE
ALSO PHILADELPHIA, B. & W.R. CO. V. SMITH, 250 U.S. 101; SOUTHERN RY.
CO. V. PUCKETT, 244 U.S. 571; NEW YORK CENT. R. CO. V. PORTER, 249 U.S.
168; KINZELL V. CHICAGO, M. & ST. P. RY. CO., 250 U.S. 130; SOUTHERN
PACIFIC CO. V. INDUSTRIAL ACCIDENT COMM'N, 251 U.S. 259; PHILADELPHIA &
READING RY. CO. V. DI DONATO, 256 U.S. 327; RADER V. BALTIMORE & OHIO
R. CO., 108 F.2D 980.  COMPARE SHANKS V. DELAWARE, L. & W.R. CO., 239
U.S. 556; CHICAGO & NORTH WESTERN RY. CO. V. BOLLE, 284 U.S. 74;
CHICAGO & EASTERN ILLINOIS R. CO. V. COMMISSION, 284 U.S. 296. 

WE THINK THAT PRACTICAL TEST SHOULD GOVERN HERE.  FN3  VEHICULAR
ROADS AND BRIDGES ARE AS INDISPENSABLE TO THE INTERSTATE MOVEMENT OF
PERSONS AND GOODS AS RAILROAD TRACKS AND BRIDGES ARE TO INTERSTATE
TRANSPORTATION BY RAIL.  IF THEY ARE USED BY PERSONS AND GOODS PASSING
BETWEEN THE VARIOUS STATES, THEY ARE INSTRUMENTALITIES OF INTERSTATE
COMMERCE.  CF. COVINGTON & CINCINNATI BRIDGE CO. V. KENTUCKY, 154 U.S.
204, 218.  THOSE PERSONS WHO ARE ENGAGED IN MAINTAINING AND REPAIRING
SUCH FACILITIES SHOULD BE CONSIDERED AS "ENGAGED IN COMMERCE" EVEN AS
WAS THE BOLT-CARRYING EMPLOYEE IN THE PEDERSEN CASE, SUPRA, BECAUSE
WITHOUT THEIR SERVICES THESE INSTRUMENTALITIES WOULD NOT BE OPEN TO THE
PASSAGE OF GOODS AND PERSONS ACROSS STATE LINES.  AND THE SAME IS TRUE
OF OPERATIONAL EMPLOYEES WHOSE WORK IS JUST AS CLOSELY RELATED TO THE
INTERSTATE MOVEMENT.  OF COURSE, ALL THIS IS SUBJECT TO THE
QUALIFICATION THAT THE ACT DOES NOT CONSIDER AS AN EMPLOYER THE UNITED
STATES OR ANY STATE OR POLITICAL SUBDIVISION OF A STATE, AND HENCE DOES
NOT APPLY TO THEIR EMPLOYEES.  SEC. 3(D). 

THE ALLEGATIONS OF PETITIONERS' COMPLAINT SATISFY THIS PRACTICAL
TEST.  THE ROAD AND BRIDGE ALLEGEDLY AFFORD PASSAGE TO AN EXTENSIVE
MOVEMENT OF GOODS AND PERSONS BETWEEN FLORIDA AND OTHER STATES, AND
MOREOVER THE DRAWBRIDGE PRESENTS AN OBSTACLE TO INTERSTATE TRAFFIC BY
WATER OVER THE INTERCOASTAL WATERWAY IF NOT PROPERLY OPERATED.  THE
OPERATIONAL AND MAINTENANCE ACTIVITIES OF PETITIONERS ARE VITAL TO THE
PROPER FUNCTIONING OF THESE STRUCTURES AS INSTRUMENTALITIES OF
INTERSTATE COMMERCE.  THE SERVICES OF OVERSTREET ARE NECESSARY TO
PREVENT THE DRAWBRIDGE FROM BEING EITHER A BARRIER TO INTERSTATE
NAVIGATION OR ELSE A GAP IN THE VEHICULAR WAY.  WITHOUT THE SERVICES OF
BRAZLE THE FACILITIES WOULD FALL INTO DISREPAIR, AND BOTH OPERATION AND
MAINTENANCE WOULD SEEM TO DEPEND UPON GARVIN'S COLLECTING THE TOLL FROM
USERS OF THE STRUCTURES.  THE WORK OF EACH PETITIONER IN PROVIDING A
MEANS OF INTERSTATE TRANSPORTATION AND COMMUNICATION IS SO INTIMATELY
RELATED TO INTERSTATE COMMERCE "AS TO BE IN PRACTICE AND IN LEGAL
CONTEMPLATION A PART OF IT" (PEDERSEN'S CASE, SUPRA) AND JUSTIFIES
REGARDING PETITIONERS AS "ENGAGED IN COMMERCE" WITHIN THE MEANING OF
THE FAIR LABOR STANDARDS ACT. 

RESPONDENT RESISTS THE APPLICATION OF THE TEST OF THE PEDERSEN AND
RELATED CASES, CITED ABOVE, POINTING OUT THAT THERE MAY BE PITFALLS IN
TRANSLATING IMPLICATIONS FROM THE SPECIAL ASPECTS OF ONE STATUTE TO
ANOTHER (SEE FEDERAL TRADE COMM'N V. BUNTE BROS., 312 U.S. 349, 353),
AND CLAIMING THAT SIGNIFICANT DIFFERENCES EXIST BETWEEN THE FEDERAL
EMPLOYERS' LIABILITY ACT AND THE FAIR LABOR STANDARDS ACT.  THE
OUTSTANDING DIFFERENCE ASSERTED IS THAT A RAILROAD COMPANY IS ACTUALLY
ENGAGED IN COMMERCE AS A CARRIER OF GOODS AND PERSONS, AND SINCE IT IS
DIFFICULT TO CONSIDER THE BUSINESS OTHER THAN AS A WHOLE AND TO
SEPARATE MAINTENANCE FROM TRANSPORTATION EMPLOYEES, THERE IS GOOD
REASON FOR TREATING MAINTENANCE EMPLOYEES AS ENGAGED IN COMMERCE. 
(COMPARE THE PEDERSEN CASE, SUPRA, AT PP. 151-152.)  AS REGARDS ITSELF
RESPONDENT SAYS THAT IT IS NOT ENGAGED IN COMMERCE, BUT ONLY IN
PROVIDING FACILITIES WHICH THOSE CARRYING ON COMMERCE MAY USE, AND
THEREFORE THERE IS NO SOUND BASIS FOR TREATING ITS MAINTENANCE AND
OPERATIONAL EMPLOYEES AS ENGAGED IN COMMERCE - RATHER THEY ONLY AFFECT
COMMERCE.  RELIANCE IS PLACED UPON HENDERSON BRIDGE CO. V. KENTUCKY,
166 U.S. 150, AND DETROIT BRIDGE CO. V. TAX BOARD, 294 U.S. 83, WHERE
IN SUSTAINING THE POWER OF THE STATES OF KENTUCKY AND MICHIGAN,
RESPECTIVELY, TO TAX THE FRANCHISE OF DOMESTIC CORPORATIONS OPERATING
BRIDGES BETWEEN KENTUCKY AND INDIANA AND BETWEEN MICHIGAN AND CANADA,
IT WAS SAID THAT THE RESPECTIVE BRIDGE COMPANIES WERE NOT ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE.  WE DO NOT REGARD THESE OBJECTIONS AS
WELL TAKEN. 

THE FEDERAL EMPLOYERS' LIABILITY ACT AND THE FAIR LABOR STANDARDS ACT
ARE NOT STRICTLY ANALOGOUS, BUT THEY ARE SIMILAR.  BOTH ARE AIMED AT
PROTECTING COMMERCE FROM INJURY THROUGH ADJUSTMENT OF THE MASTER
SERVANT RELATIONSHIP, THE ONE BY LIBERALIZING THE COMMON LAW RULES
PERTAINING TO NEGLIGENCE AND THE OTHER BY ELIMINATING SUBSTANDARD
WORKING CONDITIONS.  WE SEE NO PERSUASIVE REASON WHY THE SCOPE OF
EMPLOYED OR ENGAGED "IN COMMERCE" LAID DOWN IN THE PEDERSEN AND RELATED
CASES, CITED ABOVE, SHOULD NOT BE APPLIED TO THE SIMILAR LANGUAGE IN
THE FAIR LABOR STANDARDS ACT, ESPECIALLY WHEN CONGRESS IN ADOPTING THE
PHRASE "ENGAGED IN COMMERCE" HAD THOSE FEDERAL EMPLOYERS' LIABILITY ACT
CASES BROUGHT TO ITS ATTENTION.  FN4 

THE HENDERSON AND DETROIT BRIDGE CASES, SUPRA, DO NOT AFFECT OUR
CONCLUSION.  WE HAVE POINTED OUT THAT DECISIONS SUCH AS THOSE, DEALING
WITH VARIOUS ASSERTIONS OF STATE OR FEDERAL POWER IN THE COMMERCE
FIELD, ARE NOT PARTICULARLY HELPFUL IN DETERMINING THE SCOPE OF THE
ACT.  KIRSCHBAUM CO. V. WALLING, SUPRA, PP. 520-21; WALLING V.
JACKSONVILLE PAPER CO., SUPRA.  BUT EVEN IF WE ACCEPT THE PREMISE OF
THE BRIDGE CASES AND REGARD RESPONDENT AS NOT ENGAGED IN COMMERCE, THE
RESULT IS NOT CHANGED.  THE NATURE OF THE EMPLOYER'S BUSINESS IS NOT
DETERMINATIVE, BECAUSE AS WE HAVE REPEATEDLY SAID, THE APPLICATION OF
THE ACT DEPENDS UPON THE CHARACTER OF THE EMPLOYEES' ACTIVITIES. 
KIRSCHBAUM CO. V. WALLING, SUPRA, P. 524; WARREN-BRADSHAW DRILLING CO.
V. HALL, 317 U.S. 88; WALLING V. JACKSONVILLE PAPER CO., SUPRA.  THE
FACT THAT RESPONDENT MAY BE SUBJECT TO STATE TAXATION DOES NOT IMPLY
THAT IT IS FREE FROM FEDERAL REGULATION OR THAT ITS ROAD AND DRAWBRIDGE
ARE NOT INSTRUMENTALITIES OF INTERSTATE COMMERCE.  PETITIONERS, WHO ARE
ENGAGED IN OPERATING AND MAINTAINING RESPONDENT'S FACILITIES SO THAT
THERE MAY BE INTERSTATE PASSAGE OF PERSONS AND GOODS OVER THEM, ARE SO
CLOSELY RELATED TO THAT INTERSTATE MOVEMENT AS A PRACTICAL MATTER THAT
WE THINK THEY MUST BE REGARDED, UNDER THE ALLEGATIONS OF THEIR
COMPLAINT, AS "ENGAGED IN COMMERCE" WITHIN THE MEANING OF SECS. 6 AND 7
OF THE ACT. 

WE CONCLUDE THAT PETITIONERS' COMPLAINT WAS ERRONEOUSLY DISMISSED. 
ACCORDINGLY, THE JUDGMENT BELOW IS REVERSED AND THE CAUSE REMANDED TO
THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

FN1  COMPARE KIRSCHBAUM CO. V. WALLING, 316 U.S. 517; WARREN-BRADSHAW
DRILLING CO. V. HALL, 317 U.S. 88; WALLING V. JACKSONVILLE PAPER CO.,
317 U.S. 564; HIGGINS V. CARR BROTHERS CO., 317 U.S. 572. 

FN2  SECTION 3(B) DEFINES "COMMERCE" AS "TRADE, COMMERCE,
TRANSPORTATION, TRANSMISSION, OR COMMUNICATION AMONG THE SEVERAL STATES
OR FROM ANY STATE TO ANY PLACE OUTSIDE THEREOF." 

FN3  THIS HAS BEEN THE ADMINISTRATIVE INTERPRETATION.  SEE
INTERPRETATIVE BULLETIN NO. 5 OF THE WAGE AND HOUR DIVISION OF THE
DEPARTMENT OF LABOR, ISSUED IN NOVEMBER, 1939, AT P. 7.  THIS IS SET
FORTH IN THE 1941 EDITION OF THE WAGE AND HOUR MANUAL AT P. 34.  SEE
ALSO P. 54.    COMPARE THE DISSENTING OPINION IN PEDERSEN V. FITZGERALD
CONSTRUCTION CO., 262 APP. DIV. 665, 668, 30 N.Y.S.2D 989, AFFIRMED
WITHOUT OPINION, 288 N.Y. 211, 687, 43 N.E.2D 83. 

FN4  SEE 83 CONG. REC., 75TH CONG., 3D SESS., PT. 7, P. 7434, AND PT.
8, PP. 9168-71.  SEE ALSO JOINT HEARINGS BEFORE THE SENATE COMMITTEE ON
EDUCATION AND LABOR AND THE HOUSE COMMITTEE ON LABOR ON S. 2475 AND
H.R. 7200, 75TH CONG., 1ST SESS. (1937), PT. 1, PP. 42-43. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON DISSENT. 
..END :














HOLLEY V. LAWRENCE, WARDEN, 317 U.S. 518 


NO. 600.  DECIDED JANUARY 18, 1943.  - APPEAL DISMISSED. 


THE DECISION OF THE STATE COURT THAT FAILURE TO OFFER THE TESTIMONY OF
A WIFE AT THE TRIAL OF HER HUSBAND BARRED A LATER CLAIM OF THE
UNCONSTITUTIONALITY OF A STATE STATUTE MAKING SUCH TESTIMONY
INCOMPETENT, HELD A NON-FEDERAL GROUND ADEQUATE TO SUPPORT THE
JUDGMENT. 

HOLLEY V. LAWRENCE, WARDEN. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED.  THE
COURT HAS EXAMINED ALL THE FEDERAL QUESTIONS RAISED BY APPELLANT.  IN
SO FAR AS THE APPEAL CHALLENGES THE VALIDITY OF GEORGIA CODE SEC. 38
1604, WHICH MAKES INCOMPETENT THE TESTIMONY OF A WIFE AT THE TRIAL OF
HER HUSBAND, THE JUDGMENT OF THE COURT BELOW RESTS UPON A NON-FEDERAL
GROUND ADEQUATE TO SUPPORT IT, NAMELY, THAT THE FAILURE TO TENDER SUCH
TESTIMONY AT THE TRIAL BARRED ANY LATER CLAIM OF THE ALLEGED
CONSTITUTIONAL RIGHT (ATLANTIC COAST LINE R. CO. V. MIMS, 242 U.S. 532,
535).  THE COURT FINDS THAT NO OTHER FEDERAL QUESTION PRESENTED BY THE
APPEAL WARRANTS REVIEW BY THIS COURT.  THE APPEAL IS ACCORDINGLY
DISMISSED.  DISMISSED. 
..END :
























AMERICAN MEDICAL ASSN. V. U.S., 317 U.S. 519 


NO. 201.  ARGUED DECEMBER 11, 14, 1942.  - DECIDED JANUARY 18, 1943.  -
130 F.2D 233, AFFIRMED. 


PETITIONERS, THE AMERICAN MEDICAL ASSOCIATION AND THE MEDICAL SOCIETY
OF THE DISTRICT OF COLUMBIA (CORPORATIONS), WERE INDICTED AND CONVICTED
OF CONSPIRING TO VIOLATE SEC. 3 OF THE SHERMAN ACT BY RESTRAINING TRADE
OR COMMERCE IN THE DISTRICT OF COLUMBIA.  TWO UNINCORPORATED
ASSOCIATIONS AND TWENTY-ONE INDIVIDUALS (SOME OF WHOM WERE OFFICERS OR
EMPLOYEES OF ONE OR THE OTHER OF THE PETITIONERS; OTHERS WERE
PHYSICIANS PRACTICING IN THE DISTRICT OF COLUMBIA AND MEMBERS OF THE
PETITIONERS) WERE CODEFENDANTS BUT WERE ACQUITTED BY DIRECTED VERDICT
OR FOUND NOT GUILTY.  THE INDICTMENT CHARGED THAT, TO PREVENT GROUP
HEALTH - A NONPROFIT CORPORATION ORGANIZED BY GOVERNMENT EMPLOYEES TO
PROVIDE MEDICAL CARE AND HOSPITALIZATION ON A RISK-SHARING PREPAYMENT
BASIS, AND EMPLOYING FULL-TIME PHYSICIANS ON A SALARY BASIS - FROM
CARRYING OUT ITS OBJECTS, THE DEFENDANTS CONSPIRED TO COERCE PRACTICING
PHYSICIANS, MEMBERS OF THE PETITIONERS, FROM ACCEPTING EMPLOYMENT UNDER
GROUP HEALTH; TO RESTRAIN PRACTICING PHYSICIANS, MEMBERS OF THE
PETITIONERS, FROM CONSULTING WITH GROUP HEALTH'S DOCTORS WHO MIGHT
DESIRE TO CONSULT WITH THEM; AND TO RESTRAIN HOSPITALS IN AND ABOUT
WASHINGTON FROM AFFORDING FACILITIES FOR THE CARE OF PATIENTS OF GROUP
HEALTH'S PHYSICIANS.  HELD: 

1.  IT IS UNNECESSARY HERE TO DECIDE, AND THE COURT DOES NOT DECIDE,
WHETHER A PHYSICIAN'S PRACTICE OF HIS PROFESSION CONSTITUTES TRADE
UNDER SEC. 3 OF THE SHERMAN ACT.  P. 528. 

2.  GROUP HEALTH IS ENGAGED IN "TRADE" WITHIN THE MEANING OF SEC. 3
OF THE SHERMAN ACT, NOTWITHSTANDING THAT IT IS COOPERATIVE AND PROCURES
SERVICE AND FACILITIES ON BEHALF OF ITS MEMBERS ONLY.  P. 528. 

3.  THE INDICTMENT IN THIS CASE CHARGES A CONSPIRACY TO RESTRAIN AND
OBSTRUCT THE BUSINESS OF GROUP HEALTH, AND THEREFORE A CONSPIRACY IN
RESTRAINT OF TRADE OR COMMERCE IN VIOLATION OF SEC. 3 OF THE SHERMAN
ACT.  P. 528. 

4.  THE FACT THAT THE DEFENDANTS WERE PHYSICIANS AND MEDICAL
ORGANIZATIONS IS OF NO SIGNIFICANCE, IF THE PURPOSE AND EFFECT OF THEIR
CONSPIRACY WAS OBSTRUCTION AND RESTRAINT OF THE BUSINESS OF GROUP
HEALTH, SINCE SEC. 3 PROHIBITS "ANY PERSON" FROM IMPOSING THE
PROSCRIBED RESTRAINTS.  P. 528. 

5.  THE COURTS BELOW CORRECTLY CONSTRUED THE INDICTMENT IN THIS CASE
AS CHARGING A SINGLE CONSPIRACY TO OBSTRUCT AND RESTRAIN THE BUSINESS
OF GROUP HEALTH - THE RECITED "PURPOSES" CONSTITUTING MERELY DIFFERENT
STEPS TOWARD THE ACCOMPLISHMENT OF THAT END - AND THE CAUSE WAS
SUBMITTED TO THE JURY ON THIS THEORY.  PETITIONERS' CHALLENGE OF THE
VALIDITY OF THE GENERAL VERDICT OF GUILTY - BASED IN EFFECT ON THE
CONTENTION THAT THE INDICTMENT CHARGED FIVE SEPARATE CONSPIRACIES, AND
THAT THE DEFENDANTS WERE ENTITLED TO HAVE THE TRIAL COURT RULE UPON THE
SUFFICIENCY IN LAW OF EACH OF THE CHARGES - THEREFORE FAILS.  P. 532. 

6.  THE EVIDENCE IN THE CASE WAS SUFFICIENT FOR SUBMISSION TO THE
JURY.  P. 533. 

7.  THE DISPUTE BETWEEN PETITIONERS (AND THEIR MEMBERS) AND GROUP
HEALTH (AND ITS MEMBERS) WAS NOT ONE "CONCERNING TERMS AND CONDITIONS
OF EMPLOYMENT," AND THEREFORE PETITIONERS' ACTIVITIES WERE NOT
EXEMPTED, BY SEC. 20 OF THE CLAYTON ACT AS EXPANDED BY SEC. 13 OF THE
NORRIS-LAGUARDIA ACT, FROM THE OPERATION OF THE SHERMAN ACT.  P. 533. 

AMERICAN MEDICAL ASSOCIATION V. UNITED STATES* . 

*TOGETHER WITH NO. 202, MEDICAL SOCIETY OF THE DISTRICT OF COLUMBIA
V. UNITED STATES, ALSO ON WRIT OF CERTIORARI, POST, P. 613, TO THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, POST, P. 613, TO REVIEW THE AFFIRMANCE OF CONVICTIONS FOR
VIOLATION OF THE SHERMAN ANTITRUST ACT. 

THE WORD "TRADE" IN SEC. 3 OF THE SHERMAN ACT DOES NOT INCLUDE THE
PRACTICE OF MEDICINE AND THE RENDERING OF MEDICAL SERVICES AS DESCRIBED
IN THE INDICTMENT, BECAUSE THEY ARE NOT "COMMERCIAL" IN NATURE.  THE
NATURAL MEANING AND JUDICIAL DEFINITIONS OF THE WORD "TRADE" EXCLUDE
THE PROFESSIONS.  FEDERAL CLUB V. NATIONAL LEAGUE, 259 U.S. 200;
FEDERAL TRADE COMM'N V. RALADAM CO., 283 U.S. 643. 

APEX HOSIERY CO. V. LEADER, 310 U.S. 469, HELD IN SUBSTANCE AND
EFFECT THAT NO ACTIVITY COULD BE IN "TRADE" WITHIN THE MEANING OF
EITHER SEC. 1 OR SEC. 3 OF THE SHERMAN ACT UNLESS IT WAS A "COMMERCIAL"
ACTIVITY. 

NONE OF THE FIVE ACTIVITIES ALLEGED TO HAVE BEEN RESTRAINED WERE
"TRADE" UNDER THE SHERMAN ACT.  GROUP HEALTH WAS ORGANIZED UNDER
INCORPORATION OF CHARITABLE, EDUCATIONAL, AND RELIGIOUS ASSOCIATIONS. 
ITS SOLE ACTIVITIES ARE TO COLLECT DUES FROM ITS MEMBERS, PAY RENT FOR
AND MAINTAIN A SUITE OF DOCTORS' OFFICES, WITH THE USUAL APPURTENANCES
THERETO, EMPLOY DOCTORS TO RENDER MEDICAL SERVICES, WITHIN LIMITS, TO
ITS MEMBERS AND TO PAY, WITHIN LIMITS, THE HOSPITAL BILLS OF ITS
MEMBERS.  SUCH ACTIVITIES ARE NOT "COMMERCIAL" OR "BUSINESS"
ACTIVITIES. 

THE MEMBERS OF GROUP HEALTH ARE NOT ENGAGED IN A "COMMERCIAL" OR
"BUSINESS" ACTIVITY; THE ACTIVITY OF THE DOCTORS EMPLOYED BY GROUP
HEALTH IS NOT "COMMERCIAL" OR "BUSINESS" ACTIVITY; THE PRACTICE OF
MEDICINE BY THE MEDICAL PROFESSION GENERALLY IS NOT A "COMMERCIAL" OR
"BUSINESS" ACTIVITY; AND THE WASHINGTON HOSPITALS, OR THAT PART OF
THEIR ACTIVITIES HERE INVOLVED, ARE NOT "COMMERCIAL" OR "BUSINESS"
ACTIVITIES. 

IF ANY ONE OF THE FIVE ACTIVITIES ALLEGED TO HAVE BEEN RESTRAINED WAS
NOT "TRADE" UNDER SEC. 3 OF THE SHERMAN ACT, THEN NO ONE IS ABLE TO
DETERMINE WHETHER OR NOT THE JURY RETURNED ITS VERDICT BASED ON A
RESTRAINT OF AN ACTIVITY THAT WAS NOT "TRADE" UNDER SEC. 3 OF THE
SHERMAN ACT.  STROMBERG V. CALIFORNIA, 283 U.S. 359, 367-370; THORNHILL
V. ALABAMA, 310 U.S. 88, 96; GARLAND V. DAVIS, 4 HOW.  131; BALTIMORE &
OHIO R. CO. V. REEVES, 10 F.2D 329, 330, 331; PATTON V. WELLS, 121 F.
337, 340; ST. LOUIS, I.M. & S. RY. CO. V. NEEDHAM, 63 F. 107, 113, 114;
MANDERVILLE V. COOKENDERFER, 3 CRANCH, C.C. (3 D.C.)  257, FED. CAS.
NO. 9,009.  FURTHERMORE, IF ANY ONE OF THE FIVE ACTIVITIES ALLEGED TO
HAVE BEEN RESTRAINED WAS NOT "TRADE" UNDER SEC. 3 OF THE SHERMAN ACT,
THE COURT ERRONEOUSLY CHARGED THE JURY THAT RESTRAINT ON ANY ONE OF THE
FIVE CLASSES ALLEGED TO HAVE BEEN RESTRAINED WAS SUFFICIENT TO
CONVICT.  STROMBERG V. CALIFORNIA, SUPRA; MARYLAND V. BALDWIN, 112 U.S.
490, 493. 

THE WORD "RESTRAINT" IN SEC. 3 OF THE SHERMAN ACT DOES NOT INCLUDE
ANY RESTRAINT THAT DOES NOT FIX PRICES OR SUPPRESS COMPETITION TO THE
EXTENT THAT MARKET PRICES ARE SUBSTANTIALLY AFFECTED TO THE INJURY OF
THE PUBLIC.  APEX HOSIERY CO. V. LEADER, 310 U.S. 469; INTERNATIONAL
UNION V. DONNELLY GARMENT CO., 119 F.2D 892, 898; GUNDERSHEIMER'S V.
BAKERY WORKERS' UNION, 73 APP. D.C. 352, 353, 119 F.2D 205, 206; UNITED
STATES V. LOCAL 807, 118 F.2D 684-689, AFFIRMED 315 U.S. 521;
INTERNATIONAL ASSN. V. PAULY JAIL BLDG. CO., 118 F.2D 615, 621; UNITED
STATES V. GOLD, 115 F.2D 236-238; KONECKY V. JEWISH PRESS, 288 F. 179;
AND SWARTZ V. FORWARD ASSN., 41 F.SUPP.  294. 

THE INDICTMENT HEREIN DID NOT ATTEMPT TO CHARGE PRICE FIXING OR
SUPPRESSION OF COMPETITION THAT AFFECTED MARKET PRICES TO THE INJURY OF
THE PUBLIC.  NO SUCH CONTENTION EVER APPEARED UNTIL AFTER THE OPINION
IN THE APEX CASE. 

A DISPUTE CONCERNING TERMS AND CONDITIONS OF EMPLOYMENT OF DOCTORS,
WHICH WAS WITHIN THE CLAYTON AND NORRIS-LAGUARDIA ACTS, WAS INVOLVED,
IN WHICH PETITIONERS WERE INTERESTED.  THE CASE IS THEREFORE NOT WITHIN
THE SHERMAN ACT. 

THE DISPUTE CONCERNING TERMS AND CONDITIONS OF EMPLOYMENT OF DOCTORS
AROSE IN THE FOLLOWING MANNER:  WHEN A COMMITTEE OF THE EXECUTIVE
COMMITTEE OF THE DISTRICT SOCIETY AND REPRESENTATIVES OF GROUP HEALTH
CONFERRED FOR THE FIRST TIME, A CONTROVERSY AROSE, THE MATRIX OF WHICH
WAS THE TERMS AND CONDITIONS OF EMPLOYMENT BY GROUP HEALTH OF MEMBERS
OF THE DISTRICT SOCIETY TO PERFORM GROUP HEALTH'S CORPORATE MEDICAL
WORK.  GROUP HEALTH REJECTED AN OFFERED BASIS OF EMPLOYMENT OF MEMBERS
OF THE DISTRICT SOCIETY, INSISTED UPON DICTATING THE TERMS, CONDITIONS,
AND METHOD OF PAYMENT OF COMPENSATION AND OF EMPLOYING MEMBERS OF THE
DISTRICT SOCIETY, REGARDLESS OF WHETHER GROUP HEALTH'S PLANS WERE
ILLEGAL OR IN CONFLICT WITH THE CONSTITUTION AND EMPLOYMENT RULES OF
THE DISTRICT SOCIETY.  THIS CONTROVERSY OVER TERMS AND CONDITIONS OF
EMPLOYMENT CONTINUED THROUGHOUT THE INDICTMENT PERIOD AND WAS INVOLVED
IN ALL OF THE ACTIVITIES CHARGED OR PROVEN.  SEE UNITED STATES V.
HUTCHESON, 312 U.S. 219; UNITED STATES V. CARROZZO, 37 F.SUPP.  191,
AFFIRMED, 313 U.S. 508; NEW NEGRO ALLIANCE V. SANITARY GROCERY CO., 303
U.S. 552; DRIVERS UNION V. LAKE VALLEY CO., 311 U.S. 91;
GUNDERSHEIMER'S V. BAKERY WORKERS' UNION, 73 APP. D.C. 352, 353, 119
F.2D 205, 206; INTERNATIONAL UNION V. DONNELLY GARMENT CO., 119 F.2D
892, 898; INTERNATIONAL ASSN. V. PAULY JAIL BLDG. CO., 118 F.2D 615,
621. 

PETITIONERS CONSPIRED TO BOYCOTT GROUP HEALTH IN ORDER TO PREVENT IT
FROM MARKETING MEDICAL SERVICES IN COMPETITION WITH PETITIONERS' DOCTOR
MEMBERS.  SUCH A BOYCOTTING COMBINATION TO EXCLUDE A COMPETITOR FROM
THE MARKET IS A RESTRAINT OF TRADE PROHIBITED BY THE SHERMAN ACT.  THE
DECISIONS HAVE NOT BEEN RESTED UPON THE GROUND THAT THERE HAD BEEN
PRICE-FIXING OR THAT COMPETITION HAD BEEN SUPPRESSED TO THE EXTENT THAT
MARKET PRICES WERE SUBSTANTIALLY AFFECTED.  MONTAGUE & CO. V. LOWRY,
193 U.S. 38; STRAUS V. AMERICAN PUBLISHERS' ASSN., 231 U.S. 222;
EASTERN STATES RETAIL LUMBER DEALERS' ASSN. V. UNITED STATES, 234 U.S.
600; BINDERUP V. PATHE EXCHANGE, 263 U.S. 291; PARAMOUNT FAMOUS LASKY
CORP. V. UNITED STATES, 282 U.S. 30; UNITED STATES V. FIRST NATIONAL
PICTURES, 282 U.S. 44; SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553,
587-589, 601; FASHION ORIGINATORS' GUILD V. FEDERAL TRADE COMM'N, 312
U.S. 457. 

APEX HOSIERY CO. V. LEADER, 310 U.S. 469, DID NOT HOLD THAT THE
RESTRAINTS OF TRADE CONDEMNED BY THE SHERMAN ACT ARE LIMITED TO THOSE
INVOLVING PRICE-FIXING OR A SUPPRESSION OF COMPETITION WHICH
SUBSTANTIALLY AFFECTS MARKET PRICES.  THE CASE HELD ONLY THAT THE
RESTRAINTS PROHIBITED BY THE ACT ARE THOSE WHICH SUPPRESS OR
SUBSTANTIALLY RESTRICT COMPETITION IN THE MARKETING OF GOODS OR
SERVICES AND PRICE-FIXING WAS REFERRED TO MERELY AS ONE CONSPICUOUS
EXAMPLE OF THE TYPE OF RESTRAINT DECLARED ILLEGAL.  THIS INTERPRETATION
OF THE APEX CASE IS CONFIRMED BY FASHION ORIGINATORS' GUILD V. FEDERAL
TRADE COMM'N, 312 U.S. 457, WHICH HELD THAT AN INTENT TO INCREASE
PRICES IS NOT "AN EVER-PRESENT ESSENTIAL" OF CONDUCT CONSTITUTING A
VIOLATION OF THE SHERMAN ACT. 

THE CONSPIRACY TO PREVENT GROUP HEALTH FROM SUCCESSFULLY CARRYING ON
ITS BUSINESS OF FURNISHING MEDICAL SERVICE TO MEMBERS OF THE CONSUMING
PUBLIC WAS A RESTRAINT OF TRADE PROHIBITED BY THE SHERMAN ACT.  THE ACT
APPLIES TO RESTRAINTS UPON COMPETITION IN PROVIDING SERVICES AS WELL AS
GOODS AND CONGRESS CANNOT BE PRESUMED TO HAVE INTENDED TO EXCLUDE
CONSUMERS OF MEDICAL SERVICE FROM THE PROTECTION EXTENDED GENERALLY TO
PURCHASERS AND CONSUMERS OF GOODS OR SERVICES. 

GROUP HEALTH WAS ENGAGED IN A LARGE-SCALE UNDERTAKING TO PROVIDE
MEDICAL SERVICE IN EXCHANGE FOR PAYMENT OF DUES.  THIS EXCHANGE OF
SERVICE FOR MONEY IS TRADE IN THE PRIMARY AND MOST USUAL MEANING OF THE
WORD.  THE FACT THAT GROUP HEALTH IS A NON-PROFIT CORPORATION IS
IMMATERIAL.  ITS BUSINESS OPERATIONS WERE TRADE, ALTHOUGH CARRIED ON
FOR THE BENEFIT OF ITS CONSUMER-MEMBERS RATHER THAN FOR THE BENEFIT OF
STOCKHOLDERS. 

THE DISTRICT COURT ADVISED THE JURY THAT THE INDICTMENT ALLEGED THAT
PETITIONERS CONSPIRED TO RESTRAIN GROUP HEALTH, THE DOCTORS ON ITS
STAFF, OTHER DOCTORS, AND THE WASHINGTON HOSPITALS.  BUT IT FURTHER
ADVISED THE JURY THAT THE INDICTMENT ALLEGED THAT THE "PLAN AND
PURPOSE" OF THE CONSPIRACY WAS TO "HINDER AND OBSTRUCT" GROUP HEALTH
AND THE DOCTORS ON ITS STAFF, IN CERTAIN SPECIFIED WAYS. 

THE JURY, IN ORDER TO CONVICT, WAS REQUIRED TO FIND NOT ONLY THAT
THERE WAS A CONSPIRACY TO RESTRAIN TRADE IN ONE OF THE SEVERAL WAYS
MENTIONED BY THE COURT (I.E., TO RESTRAIN GROUP HEALTH, ITS DOCTORS,
OTHER DOCTORS, OR THE HOSPITALS) BUT ALSO THAT THE PLAN AND PURPOSE OF
THE CONSPIRACY WAS TO OBSTRUCT AND INTERFERE WITH GROUP HEALTH IN ITS
BUSINESS OF PROVIDING MEDICAL CARE FOR ITS MEMBERS.  THE JURY WAS
INSTRUCTED, IN OTHER WORDS, THAT RESTRAINT UPON THE BUSINESS OF GROUP
HEALTH WAS AN ESSENTIAL ELEMENT OF THE CONSPIRACY CHARGED AGAINST
PETITIONERS. 

UNDER THE DISTRICT COURT'S CHARGE TO THE JURY, PETITIONERS'
CONVICTIONS MUST BE SUSTAINED IF THE RESTRAINTS UPON THE TRADE OF GROUP
HEALTH ARE WITHIN THE BAN OF THE STATUTE.  BUT IF THE APPLICATION OF
THE ACT TO RESTRAINTS UPON INDIVIDUAL DOCTORS IN THE PURSUIT OF THEIR
CALLING IS AN ESSENTIAL ISSUE IN THIS CASE, SUCH RESTRAINTS ARE WITHIN
THE SCOPE OF THE COMMON-LAW CONCEPT, EMBODIED IN THE SHERMAN ACT, OF
RESTRAINT OF TRADE. 

DISPUTE CONCERNING SOME QUESTION OF EMPLOYMENT INVOLVING THE EMPLOYER
EMPLOYEE RELATIONSHIP.  PETITIONERS CANNOT SUBSUME THEMSELVES UNDER THE
CLASS OF EMPLOYEE REPRESENTATIVES UNDER THE ACT SINCE PETITIONERS'
MEMBERS WERE NOT EMPLOYEES AND DID NOT WANT TO BE EMPLOYEES.  RATHER,
PETITIONERS ARE ANALOGOUS TO A TRADE ASSOCIATION REPRESENTING
INDEPENDENT BUSINESS UNITS.  NOR WAS THE CONTROVERSY ITSELF OF A KIND
CONTEMPLATED BY THE CLAYTON ACT.  THE DISPUTE BETWEEN PETITIONERS AND
GROUP HEALTH WAS AS TO WHETHER THE LATTER'S METHOD OF PROVIDING MEDICAL
SERVICES SHOULD BE PERMITTED TO OPERATE.  A CONTROVERSY OF THIS KIND,
BETWEEN COMPETITORS AND CONCERNING COMPETITION, IS NOT WITHIN THE SCOPE
OF SEC. 20.  COLUMBIA RIVER PACKERS ASSN. V. HINTON, 315 U.S. 143.  A
FURTHER FACTOR ESTABLISHING THE INAPPLICABILITY OF THE CLAYTON ACT IS
THAT, EVEN ASSUMING THAT PETITIONERS WERE "EMPLOYEE REPRESENTATIVES,"
THERE WAS NO EMPLOYER-EMPLOYEE RELATIONSHIP IN RESPECT OF GROUP HEALTH
AND ITS DOCTORS.  GROUP HEALTH'S DOCTORS ARE INDEPENDENT CONTRACTORS,
NOT EMPLOYEES.  THEREFORE THE RELATIONSHIP WHICH WAS OF CONCERN TO
CONGRESS IN ITS ENACTMENT OF THE CLAYTON AND NORRIS-LAGUARDIA ACTS IS
ENTIRELY LACKING HERE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS HAVE BEEN INDICTED AND CONVICTED OF CONSPIRING TO VIOLATE
SEC. 3 OF THE SHERMAN ACT, FN1  BY RESTRAINING TRADE OR COMMERCE IN THE
DISTRICT OF COLUMBIA.  THEY ARE RESPECTIVELY CORPORATIONS OF ILLINOIS
AND OF THE DISTRICT OF COLUMBIA.  JOINED WITH THEM AS DEFENDANTS WERE
TWO UNINCORPORATED ASSOCIATIONS AND TWENTY-ONE INDIVIDUALS, SOME OF
WHOM ARE OFFICERS OR EMPLOYES OF ONE OR OTHER OF THE PETITIONERS, THE
REMAINDER BEING PHYSICIANS PRACTICING IN THE DISTRICT OF COLUMBIA AND
MEMBERS OF THE PETITIONERS SERVING, AS TO SOME OF THEM, ON VARIOUS
COMMITTEES OF THE PETITIONERS HAVING TO DO WITH PROFESSIONAL ETHICS AND
WITH THE PRACTICE OF MEDICINE BY PETITIONERS' MEMBERS. 

FOR THE MOMENT IT IS ENOUGH TO SAY THAT THE INDICTMENT CHARGED A
CONSPIRACY TO HINDER AND OBSTRUCT THE OPERATIONS OF GROUP HEALTH
ASSOCIATION, INC., A NONPROFIT CORPORATION ORGANIZED BY GOVERNMENT
EMPLOYES TO PROVIDE MEDICAL CARE AND HOSPITALIZATION ON A RISK-SHARING
PREPAYMENT BASIS.  GROUP HEALTH EMPLOYED PHYSICIANS ON A FULL TIME
SALARY BASIS AND SOUGHT HOSPITAL FACILITIES FOR THE TREATMENT OF
MEMBERS AND THEIR FAMILIES.  THIS PLAN WAS CONTRARY TO THE CODE OF
ETHICS OF THE PETITIONERS.  THE INDICTMENT CHARGES THAT, TO PREVENT
GROUP HEALTH FROM CARRYING OUT ITS OBJECTS, THE DEFENDANTS CONSPIRED TO
COERCE PRACTICING PHYSICIANS, MEMBERS OF THE PETITIONERS, FROM
ACCEPTING EMPLOYMENT UNDER GROUP HEALTH, TO RESTRAIN PRACTICING
PHYSICIANS, MEMBERS OF THE PETITIONERS, FROM CONSULTING WITH GROUP
HEALTH'S DOCTORS WHO MIGHT DESIRE TO CONSULT WITH THEM, AND TO RESTRAIN
HOSPITALS IN AND ABOUT THE CITY OF WASHINGTON FROM AFFORDING FACILITIES
FOR THE CARE OF PATIENTS OF GROUP HEALTH'S PHYSICIANS. 

THE DISTRICT COURT SUSTAINED A DEMURRER TO THE INDICTMENT ON THE
GROUNDS, AMONGST OTHERS, THAT NEITHER THE PRACTICE OF MEDICINE NOR THE
BUSINESS OF GROUP HEALTH IS TRADE AS THE TERM IS USED IN THE SHERMAN
ACT.  FN2  ON APPEAL THE COURT OF APPEALS REVERSED, HOLDING THAT THE
RESTRAINT OF TRADE PROHIBITED BY THE STATUTE MAY EXTEND BOTH TO MEDICAL
PRACTICE AND TO THE OPERATIONS OF GROUP HEALTH.  FN3    THE CASE THEN
WENT TO TRIAL IN THE DISTRICT COURT.  CERTAIN DEFENDANTS WERE ACQUITTED
BY DIRECTION OF THE JUDGE.  AS TO THE OTHERS, THE CASE WAS SUBMITTED TO
THE JURY, WHICH FOUND THE PETITIONERS GUILTY AND ALL THE OTHER
DEFENDANTS NOT GUILTY.  FROM JUDGMENTS OF CONVICTION THE PETITIONERS
APPEALED TO THE COURT OF APPEALS, WHICH REITERATED ITS RULING AS TO THE
APPLICABILITY OF SEC. 3 OF THE SHERMAN ACT, CONSIDERED ALLEGED TRIAL
ERRORS, AND AFFIRMED THE JUDGMENTS.  FN4 

WE GRANTED CERTIORARI LIMITED TO THREE QUESTIONS WHICH WE THOUGHT
IMPORTANT:  1.  WHETHER THE PRACTICE OF MEDICINE AND THE RENDERING OF
MEDICAL SERVICES AS DESCRIBED IN THE INDICTMENT ARE "TRADE" UNDER SEC.
3 OF THE SHERMAN ACT.  2.  WHETHER THE INDICTMENT CHARGED OR THE
EVIDENCE PROVED "RESTRAINTS OF TRADE" UNDER SEC. 3 OF THE SHERMAN ACT. 
3.  WHETHER A DISPUTE CONCERNING TERMS AND CONDITIONS OF EMPLOYMENT
UNDER THE CLAYTON AND NORRIS-LA-GUARDIA ACTS WAS INVOLVED, AND, IF SO,
WHETHER PETITIONERS WERE INTERESTED THEREIN, AND THEREFORE IMMUNE FROM
PROSECUTION UNDER THE SHERMAN ACT. 

FIRST.  MUCH ARGUMENT HAS BEEN ADDRESSED TO THE QUESTION WHETHER A
PHYSICIAN'S PRACTICE OF HIS PROFESSION CONSTITUTES TRADE UNDER SEC. 3
OF THE SHERMAN ACT.  IN THE LIGHT OF WHAT WE SHALL SAY WITH RESPECT TO
THE CHARGE LAID IN THE INDICTMENT, WE NEED NOT CONSIDER OR DECIDE THIS
QUESTION. 

GROUP HEALTH IS A MEMBERSHIP CORPORATION ENGAGED IN BUSINESS OR
TRADE.  ITS CORPORATE ACTIVITY IS THE CONSUMMATION OF THE COOPERATIVE
EFFORT OF ITS MEMBERS TO OBTAIN FOR THEMSELVES AND THEIR FAMILIES
MEDICAL SERVICE AND HOSPITALIZATION ON A RISK-SHARING PREPAYMENT
BASIS.  THE CORPORATION COLLECTS ITS FUNDS FROM MEMBERS.  WITH THESE
FUNDS PHYSICIANS ARE EMPLOYED AND HOSPITALIZATION PROCURED ON BEHALF OF
MEMBERS AND THEIR DEPENDENTS.  THE FACT THAT IT IS COOPERATIVE, AND
PROCURES SERVICE AND FACILITIES ON BEHALF OF ITS MEMBERS ONLY, DOES NOT
REMOVE ITS ACTIVITIES FROM THE SPHERE OF BUSINESS.  FN5 

IF, AS WE HOLD, THE INDICTMENT CHARGES A SINGLE CONSPIRACY TO
RESTRAIN AND OBSTRUCT THIS BUSINESS IT CHARGES A CONSPIRACY IN
RESTRAINT OF TRADE OR COMMERCE WITHIN THE STATUTE.  AS THE COURT OF
APPEALS PROPERLY REMARKED, THE CALLING OR OCCUPATION OF THE INDIVIDUAL
PHYSICIANS CHARGED AS DEFENDANTS IS IMMATERIAL IF THE PURPOSE AND
EFFECT OF THEIR CONSPIRACY WAS SUCH OBSTRUCTION AND RESTRAINT OF THE
BUSINESS OF GROUP HEALTH.  THE COURT SAID:  FN6  "AND, OF COURSE, THE
FACT THAT DEFENDANTS ARE PHYSICIANS AND MEDICAL ORGANIZATIONS IS OF NO
SIGNIFICANCE, FOR SEC. 3 PROHIBITS 'ANY PERSON' FROM IMPOSING THE
PROSCRIBED RESTRAINTS  ...  "  IT IS URGED THAT THIS WAS SAID BEFORE
THIS COURT DECIDED APEX HOSIERY CO. V. LEADER, 310 U.S. 469.  BUT
NOTHING IN THAT DECISION CONTRADICTS THE PROPOSITION STATED.  WHETHER
THE CONSPIRACY WAS AIMED AT RESTRAINING OR DESTROYING COMPETITION, OR
HAD AS ITS PURPOSE A RESTRAINT OF THE FREE AVAILABILITY OF MEDICAL OR
HOSPITAL SERVICES IN THE MARKET, THE APEX CASE PLACES IT WITHIN THE
SCOPE OF THE STATUTE.  FN7 

SECOND.  THIS BRINGS US TO CONSIDER WHETHER THE INDICTMENT CHARGED,
OR THE EVIDENCE PROVED, SUCH A CONSPIRACY IN RESTRAINT OF TRADE.  THE
ALLEGATIONS OF THE INDICTMENT ARE LENGTHY AND DETAILED.  AFTER NAMING
AND DESCRIBING THE DEFENDANTS AND THE WASHINGTON HOSPITALS, IT DEVOTES
MANY PARAGRAPHS TO A RECITAL OF THE PLAN ADOPTED BY GROUP HEALTH AND
ALLEGES THAT, PRINCIPALLY FOR ECONOMIC REASONS, AND BECAUSE OF FEAR OF
BUSINESS COMPETITION, THE DEFENDANTS HAVE OPPOSED SUCH PROJECTS. 

THE INDICTMENT THEN RECITES THE SIZE AND IMPORTANCE OF THE
PETITIONERS, ENUMERATES MEANS BY WHICH THEY CAN PREVENT THEIR MEMBERS
FROM SERVING GROUP HEALTH PLANS, OR CONSULTING WITH PHYSICIANS WHO WORK
FOR GROUP HEALTH, AND CAN PREVENT HOSPITALS FROM AFFORDING FACILITIES
TO GROUP HEALTH'S DOCTORS. 

IN CHARGING THE CONSPIRACY, THE INDICTMENT DESCRIBES THE ORGANIZATION
AND OPERATION OF GROUP HEALTH AND STATES THAT, FROM JANUARY 1937 TO THE
DATE OF THE INDICTMENT, THE DEFENDANTS, THE WASHINGTON HOSPITALS, AND
OTHERS COGNIZANT OF THE PREMISED FACTS, "HAVE COMBINED AND CONSPIRED
TOGETHER FOR THE PURPOSE OF RESTRAINING TRADE IN THE DISTRICT OF
COLUMBIA,  ...  "  IN FIVE PARAGRAPHS THE PLEADING STATES THE PURPOSES
OF THE CONSPIRACY.  THE FIRST IS THE PURPOSE OF RESTRAINING GROUP
HEALTH FROM DOING BUSINESS; THE SECOND, THAT OF RESTRAINING MEMBERS OF
GROUP HEALTH FROM OBTAINING ADEQUATE MEDICAL CARE ACCORDING TO GROUP
HEALTH'S PLAN; THE THIRD, THAT OF RESTRAINING DOCTORS SERVING GROUP
HEALTH IN THE PURSUIT OF THEIR CALLING; THE FOURTH, THAT OF RESTRAINING
DOCTORS NOT ON GROUP HEALTH'S STAFF FROM PRACTICING IN THE DISTRICT OF
COLUMBIA IN PURSUANCE OF THEIR CALLING; AND THE FIFTH, THAT OF
RESTRAINING THE WASHINGTON HOSPITALS IN THE BUSINESS OF OPERATING THEIR
HOSPITALS. 

AFTER RECITING CERTAIN OF THE PROCEEDINGS AND PLANS ADOPTED TO
FORWARD THE CONSPIRACY, THE INDICTMENT ALLEGES THAT THE CONSPIRACY, AND
THE INTENDED RESTRAINTS WHICH HAVE RESULTED FROM IT, HAVE BEEN
EFFECTUATED "IN THE FOLLOWING MANNER AND BY THE FOLLOWING MEANS"; AND
ALLEGES THAT THE DEFENDANTS HAVE COMBINED AND CONSPIRED "WITH THE PLAN
AND PURPOSE TO HINDER AND OBSTRUCT GROUP HEALTH ASSOCIATION, INC. IN
PROCURING AND RETAINING ON ITS MEDICAL STAFF QUALIFIED DOCTORS AND TO
HINDER AND OBSTRUCT THE DOCTORS SERVING ON THAT STAFF FROM OBTAINING
CONSULTATIONS WITH OTHER DOCTORS AND SPECIALISTS PRACTICING IN THE
DISTRICT OF COLUMBIA."  IT STATES THAT, PURSUANT TO THIS PLAN AND
PURPOSE, THE DEFENDANTS HAVE RESORTED TO CERTAIN MEANS TO ACCOMPLISH
THE END, AND RECOUNTS THEM. 

IN ANOTHER PARAGRAPH, THE DEFENDANTS ARE CHARGED TO HAVE CONSPIRED
WITH "THE PLAN AND PURPOSE TO HINDER AND OBSTRUCT GROUP HEALTH
ASSOCIATION, INC. IN OBTAINING ACCESS TO HOSPITAL FACILITIES FOR ITS
MEMBERS AND TO HINDER AND OBSTRUCT THE DOCTORS ON THE MEDICAL STAFF OF
GROUP HEALTH FROM TREATING AND OPERATING UPON THEIR PATIENTS IN
WASHINGTON HOSPITALS."  IT IS ALLEGED THAT, PURSUANT TO THIS PLAN AND
PURPOSE, DEFENDANTS HAVE DONE CERTAIN ACTS TO DETER HOSPITALS WITH
WHICH THEY WERE CONNECTED AND OVER WHICH THEY EXERCISED INFLUENCE, FROM
AFFORDING HOSPITAL FACILITIES TO GROUP HEALTH'S DOCTORS. 

THE PETITIONERS' CONTENTION IS, IN EFFECT, THAT THE INDICTMENT
CHARGES FIVE SEPARATE CONSPIRACIES DEFINED BY THEIR SEPARATE AND
RECITED PURPOSES, NAMELY, CONSPIRACY TO OBSTRUCT THE BUSINESS OF GROUP
HEALTH, TO OBSTRUCT ITS MEMBERS FROM OBTAINING THE BENEFIT OF ITS
ACTIVITIES, TO OBSTRUCT ITS DOCTORS FROM SERVING IT, TO OBSTRUCT OTHER
DOCTORS IN THE PRACTICE OF THEIR CALLING, AND TO RESTRAIN THE BUSINESS
OF WASHINGTON HOSPITALS.  THE PETITIONERS SAY THAT THEY WERE ENTITLED
TO HAVE THE TRIAL COURT RULE UPON THE SUFFICIENCY IN LAW OF EACH OF
THESE CHARGES AND, AS THIS WAS NOT DONE, THE GENERAL VERDICT OF GUILTY
CANNOT STAND.  THEY URGE THAT EVEN THOUGH SOME OF THE NAMED PURPOSES
RELATE TO THE BUSINESS OF GROUP HEALTH, AND THAT BUSINESS BE HELD TRADE
WITHIN THE MEANING OF THE STATUTE, YET, AS THE PRACTICE OF MEDICINE BY
DOCTORS NOT EMPLOYED BY GROUP HEALTH IS NOT TRADE, AND THE OPERATIONS
OF WASHINGTON HOSPITALS ARE NOT TRADE, THE LAST TWO PURPOSES SPECIFIED
CANNOT CONSTITUTE VIOLATIONS OF SEC. 3 AND THE JURY SHOULD HAVE BEEN SO
INSTRUCTED.  IN THIS VIEW THEY INSIST THAT THE JURY MAY HAVE CONVICTED
THEM OF RESTRAINING PHYSICIANS UNCONNECTED WITH GROUP HEALTH, OR OF
RESTRAINING HOSPITALS, AND, IF SO, THE VERDICT AND JUDGMENT CANNOT
STAND. 

IF IN FACT THE INDICTMENT CHARGES A SINGLE CONSPIRACY TO OBSTRUCT AND
RESTRAIN THE BUSINESS OF GROUP HEALTH, AND IF THE RECITED PURPOSES ARE
REALLY ONLY SUBSIDIARY TO THAT MAIN PURPOSE OR AIM, OR MERELY DIFFERENT
STEPS TOWARD THE ACCOMPLISHMENT OF THAT SINGLE END, AND IF THE CAUSE
WAS SUBMITTED TO THE JURY ON THIS THEORY, THESE CONTENTIONS FAIL. 

WHEN THE CASE FIRST WENT TO THE COURT OF APPEALS THAT TRIBUNAL
CONSTRUED THE INDICTMENT AS CHARGING BUT A SINGLE CONSPIRACY.  IT SAID:
FN8  "THE CHARGE, STATED IN CONDENSED FORM, IS THAT THE MEDICAL
SOCIETIES COMBINED AND CONSPIRED TO PREVENT THE SUCCESSFUL OPERATION OF
GROUP HEALTH'S PLAN, AND THE STEPS BY WHICH THIS WAS TO BE EFFECTUATED
WERE AS FOLLOWS:  (1) TO IMPOSE RESTRAINTS ON PHYSICIANS AFFILIATED
WITH GROUP HEALTH BY THREAT OF EXPULSION OR ACTUAL EXPULSION FROM THE
SOCIETIES; (2) TO DENY THEM THE ESSENTIAL PROFESSIONAL CONTACTS WITH
OTHER PHYSICIANS; AND (3) TO USE THE COERCIVE POWER OF THE SOCIETIES TO
DEPRIVE THEM OF HOSPITAL FACILITIES FOR THEIR PATIENTS." 

IN THE TRIAL, THE DISTRICT COURT CONFORMED ITS RULINGS TO THIS
DECISION AND SUBMITTED THE CASE TO THE JURY ON THE THEORY THAT THE
INDICTMENT CHARGED BUT ONE CONSPIRACY. 

WE THINK THE COURTS BELOW CORRECTLY CONSTRUED THE INDICTMENT.  IT IS
TRUE THAT, IN DESCRIBING THE CONSPIRACY, FIVE PURPOSES ARE STATED WHICH
THE CONSPIRACY WAS INTENDED TO FURTHER, BUT, IN A LATER PARAGRAPH,
STILL IN THE CHARGING PART OF THE INSTRUMENT, IT IS ALLEGED THAT THE
PURPOSE WAS TO HINDER AND OBSTRUCT GROUP HEALTH IN VARIOUS WAYS AND BY
VARIOUS COERCIVE MEASURES, WHICH ARE IDENTICAL WITH THE "PURPOSES"
BEFORE STATED.  THE TRIAL JUDGE, AFTER CALLING THE JURY'S ATTENTION TO
THE JUXTAPOSITION OF THESE TWO FORMULATIONS OF THE CHARGE, ADDED: 

"THESE PURPOSES, IT IS ALLEGED, WERE TO BE ATTAINED BY CERTAIN
COERCIVE MEASURES AGAINST THE HOSPITALS AND DOCTORS DESIGNED TO
INTERFERE WITH EMPLOYMENT OF DOCTORS BY GROUP HEALTH AND USE OF THE
HOSPITALS BY MEMBERS OF ITS MEDICAL STAFF AND THEIR PATIENTS.  ...  " 

IN IMMEDIATE CONTEXT THE JUDGE ADDED: 

"TO SUSTAIN THAT CHARGE THE GOVERNMENT MUST PROVE BEYOND A REASONABLE
DOUBT THAT A CONSPIRACY DID IN FACT EXIST TO RESTRAIN TRADE IN THE
DISTRICT IN AT LEAST ONE OF THE SEVERAL WAYS ALLEGED, AND ACCORDING TO
THE PARTICULAR PURPOSE AND PLAN SET FORTH." 

AT ANOTHER POINT, THE TRIAL JUDGE SUMMARIZED THE GOVERNMENT'S CLAIM
THAT THE EVIDENCE IN THE CASE SHOWED OPPOSITION BY THE PETITIONERS TO
GROUP HEALTH AND ITS PLAN; THAT THEY FEARED COMPETITION BETWEEN THE
PLAN AND THE ORGANIZED PHYSICIANS AND THAT, TO OBSTRUCT AND DESTROY
SUCH COMPETITION, THE PETITIONERS CONSPIRED WITH CERTAIN OFFICERS AND
MEMBERS AND HOSPITALS TO PREVENT SUCCESSFUL OPERATION OF GROUP HEALTH'S
PLAN BY IMPOSING RESTRAINTS UPON PHYSICIANS AFFILIATED WITH GROUP
HEALTH, BY DENYING SUCH PHYSICIANS PROFESSIONAL CONTACT AND
CONSULTATION WITH OTHER PHYSICIANS, AND BY COERCING THE HOSPITALS TO
DENY FACILITIES FOR THE TREATMENT OF THEIR PATIENTS.  AGAIN THE JUDGE
CHARGED:  "WAS THERE A CONSPIRACY TO RESTRAIN TRADE IN ONE OR MORE OF
THE WAYS ALLEGED?"  AND AGAIN:  "IF IT BE TRUE  ...  THAT THE DISTRICT
SOCIETY, ACTING ONLY TO PROTECT ITS ORGANIZATION, REGULATE FAIR DEALING
AMONG ITS MEMBERS, AND MAINTAIN AND ADVANCE THE STANDARDS OF MEDICAL
PRACTICE, ADOPTED REASONABLE RULES AND MEASURES TO THOSE ENDS, NOT
CALCULATED TO RESTRAIN GROUP HEALTH, THERE WOULD BE NO GUILT, THOUGH
THE INDIRECT EFFECT MAY HAVE BEEN TO CAUSE SOME RESTRAINT AGAINST GROUP
HEALTH." 

WE NEED ADD BUT A WORD AS TO THE SUFFICIENCY OF THE PROOF TO SUSTAIN
THE CHARGE.  THE PETITIONERS IN EFFECT CHALLENGE THE SUFFICIENCY, IN
LAW, OF THE INDICTMENT.  THEY HARDLY SUGGEST THAT IF THE PLEADING
CHARGES AN OFFENSE THERE WAS NO SUBSTANTIAL EVIDENCE OF THE COMMISSION
OF THE OFFENSE.  BUT, HOWEVER THE ARGUMENT IS VIEWED, WE AGREE WITH THE
COURTS BELOW THAT THE CASE WAS ONE FOR SUBMISSION TO A JURY.  NO
PURPOSE WOULD BE SERVED BY DETAILED DISCUSSION OF THE PROOFS. 

THIRD.  WE HOLD THAT THE DISPUTE BETWEEN PETITIONERS AND THEIR
MEMBERS, AND GROUP HEALTH AND ITS MEMBERS, WAS NOT ONE CONCERNING TERMS
AND CONDITIONS OF EMPLOYMENT WITHIN THE CLAYTON  FN9  AND THE NORRIS
LAGUARDIA  FN10  ACTS. 

LAGUARDIA ACT, IS THE ONLY LEGISLATION WHICH CAN HAVE ANY BEARING ON
THE CASE.  SECTION 20 APPLIES TO CASES BETWEEN "AN EMPLOYER AND
EMPLOYEES, OR BETWEEN EMPLOYERS AND EMPLOYEES, OR BETWEEN EMPLOYEES, OR
BETWEEN PERSONS EMPLOYED AND PERSONS SEEKING EMPLOYMENT, INVOLVING, OR
GROWING OUT OF, A DISPUTE CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT
...  "; AND PROVIDES THAT NONE OF THE ACTS SPECIFIED IN THE SECTION
SHALL "BE CONSIDERED OR HELD TO BE VIOLATIONS OF ANY LAW OF THE UNITED
STATES." 

INCLUDING "ANY CONTROVERSY CONCERNING TERMS OR CONDITIONS OF
EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR REPRESENTATION OF PERSONS
IN NEGOTIATING, FIXING, MAINTAINING, CHANGING, OR SEEKING TO ARRANGE
TERMS OR CONDITIONS OF EMPLOYMENT, REGARDLESS OF WHETHER OR NOT THE
DISPUTANTS STAND IN THE PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE." 
IT ALSO PROVIDES THAT "A CASE SHALL BE HELD TO INVOLVE OR TO GROW OUT
OF A LABOR DISPUTE WHEN THE CASE INVOLVES PERSONS WHO ARE ENGAGED IN
THE SAME INDUSTRY, TRADE, CRAFT, OR OCCUPATION; OR HAVE DIRECT OR
INDIRECT INTERESTS THEREIN; OR WHO ARE EMPLOYEES OF THE SAME EMPLOYER;
OR WHO ARE MEMBERS OF THE SAME OR AN AFFILIATED ORGANIZATION OF
EMPLOYERS OR EMPLOYEES; WHETHER SUCH DISPUTE IS (1) BETWEEN ONE OR MORE
EMPLOYERS OR ASSOCIATIONS OF EMPLOYERS AND ONE OR MORE EMPLOYEES OR
ASSOCIATIONS OF EMPLOYEES; (2) BETWEEN ONE OR MORE EMPLOYERS OR
ASSOCIATIONS OF EMPLOYERS AND ONE OR MORE EMPLOYERS OR ASSOCIATIONS OF
EMPLOYERS; OR (3) BETWEEN ONE OR MORE EMPLOYEES OR ASSOCIATIONS OF
EMPLOYEES AND ONE OR MORE EMPLOYEES OR ASSOCIATIONS OF EMPLOYEES; OR
WHEN THE CASE INVOLVES ANY CONFLICTING OR COMPETING INTERESTS IN A
'LABOR DISPUTE' (AS DEFINED IN THIS SECTION) OF 'PERSONS PARTICIPATING
OR INTERESTED' THEREIN (AS DEFINED IN THIS SECTION)."    CITING THESE
PROVISIONS, THE PETITIONERS INSIST THAT THEIR DISPUTE WITH GROUP HEALTH
WAS AS TO TERMS AND CONDITIONS OF EMPLOYMENT OF THE DOCTORS EMPLOYED BY
GROUP HEALTH SINCE THE DISTRICT MEDICAL SOCIETY OBJECTED TO ITS
MEMBERS, OR OTHER DOCTORS, TAKING EMPLOYMENT UNDER GROUP HEALTH ON THE
TERMS OFFERED BY THAT CORPORATION.  THEY ASSERT THAT SEC. 20 OF THE
CLAYTON ACT, AS EXPANDED BY SEC. 13 OF THE NORRIS-LAGUARDIA ACT,
INCLUDES ALL PERSONS AND ASSOCIATIONS INVOLVED IN A DISPUTE OVER TERMS
AND CONDITIONS OF EMPLOYMENT WHO ARE ENGAGED IN THE SAME INDUSTRY,
TRADE, CRAFT, OR OCCUPATION, OR HAVE DIRECT OR INDIRECT INTERESTS
THEREIN.  AND THEY RELY UPON OUR DECISIONS IN NEW NEGRO ALLIANCE V.
SANITARY GROCERY CO., 303 U.S. 552, AND DRIVERS' UNION V. LAKE VALLEY
CO., 311 U.S. 91, AS BRINGING WITHIN THE COVERAGE OF THE ACTS A THIRD
PARTY, EVEN THOUGH THAT PARTY BE A CORPORATION NOT IN TRADE, AND
EMPLOYERS AND EMPLOYERS' ASSOCIATIONS EVEN THOUGH THEY BE ONLY
INDIRECTLY INTERESTED IN THE CONTROVERSY.  THEY INSIST THAT AS THE
PETITIONERS AND GROUP HEALTH, ITS MEMBERS AND DOCTORS, OTHER DOCTORS
AND THE HOSPITALS, WERE EITHER DIRECTLY OR INDIRECTLY INTERESTED IN A
CONTROVERSY WHICH CONCERNED THE TERMS OF EMPLOYMENT OF DOCTORS BY GROUP
HEALTH, THE CASE FALLS WITHIN THE EXEMPTION OF THE STATUTES AND THEY
CANNOT BE HELD CRIMINALLY LIABLE FOR A VIOLATION OF THE SHERMAN ACT. 

IT SEEMS PLAIN ENOUGH THAT THE CLAYTON AND NORRIS-LAGUARDIA ACTS WERE
NOT INTENDED TO IMMUNIZE SUCH A DISPUTE AS IS PRESENTED IN THIS CASE. 
NEVERTHELESS, IT IS NOT OUR PROVINCE TO DEFINE THE PURPOSE OF CONGRESS
APART FROM WHAT IT HAS SAID IN ITS ENACTMENTS, AND, IF THE PETITIONERS'
ACTIVITIES FALL WITHIN THE CLASSES DEFINED BY THE ACTS, WE ARE BOUND TO
ACCORD PETITIONERS, ESPECIALLY IN A CRIMINAL CASE, THE BENEFIT OF THE
LEGISLATIVE PROVISIONS. 

WE THINK, HOWEVER, THAT, UPON ANALYSIS, IT APPEARS THAT PETITIONERS'
ACTIVITIES ARE NOT WITHIN THE EXEMPTIONS GRANTED BY THE STATUTES. 
ALTHOUGH THE GOVERNMENT ASSERTS THE CONTRARY, WE SHALL ASSUME THAT THE
DOCTORS HAVING CONTRACTS WITH GROUP HEALTH WERE EMPLOYES OF THAT
CORPORATION.  THE PETITIONERS DID NOT REPRESENT PRESENT OR PROSPECTIVE
EMPLOYES.  THEIR PURPOSE WAS TO PREVENT ANYONE FROM TAKING EMPLOYMENT
UNDER GROUP HEALTH.  THEY WERE INTERESTED IN THE TERMS AND CONDITIONS
OF THE EMPLOYMENT ONLY IN THE SENSE THAT THEY DESIRED WHOLLY TO PREVENT
GROUP HEALTH FROM FUNCTIONING BY HAVING ANY EMPLOYES.  THEIR OBJECTION
WAS TO ITS METHOD OF DOING BUSINESS.  OBVIOUSLY THERE WAS NO DISPUTE
BETWEEN GROUP HEALTH AND THE DOCTORS IT EMPLOYED OR MIGHT EMPLOY IN
WHICH PETITIONERS WERE EITHER DIRECTLY OR INDIRECTLY INTERESTED. 

IN TRUTH, THE PETITIONERS REPRESENTED PHYSICIANS WHO DESIRED THAT
THEY AND ALL OTHERS SHOULD PRACTICE INDEPENDENTLY ON A FEE FOR SERVICE
BASIS, WHERE WHATEVER ARRANGEMENT FOR PAYMENT EACH HAD WAS A MATTER
THAT LAY BETWEEN HIM AND HIS PATIENT IN EACH INDIVIDUAL CASE OF SERVICE
OR TREATMENT.  THE PETITIONERS WERE NOT AN ASSOCIATION OF EMPLOYES IN
ANY PROPER SENSE OF THE TERM.  THEY WERE AN ASSOCIATION OF INDIVIDUAL
PRACTITIONERS EACH EXERCISING HIS CALLING AS AN INDEPENDENT UNIT. 
THESE INDEPENDENT PHYSICIANS, AND THE TWO PETITIONING ASSOCIATIONS
WHICH REPRESENT THEM, WERE INTERESTED SOLELY IN PREVENTING THE
OPERATION OF A BUSINESS CONDUCTED IN CORPORATE FORM BY GROUP HEALTH. 
IN THIS ASPECT THE CASE IS VERY LIKE COLUMBIA RIVER PACKERS ASSN. V.
HINTON, 315 U.S. 143.  WHAT WAS THERE DECIDED REQUIRES A HOLDING THAT
THE PETITIONERS' ACTIVITIES WERE NOT EXEMPTED BY THE CLAYTON AND THE
NORRIS-LAGUARDIA ACTS FROM THE OPERATION OF THE SHERMAN ACT. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  ACT OF JULY 2, 1890, SEC. 3, C. 647, 26 STAT. 209, 15 U.S.C.
SEC. 3. 

FN2  UNITED STATES V. AMERICAN MEDICAL ASSOCIATION, 28 F.SUPP.  752. 

FN3  UNITED STATES V. AMERICAN MEDICAL ASSOCIATION, 72 APP. D.C. 12,
110 F.2D 703, 710, 711. 

FN4  AMERICAN MEDICAL ASSOCIATION V. UNITED STATES, 76 U.S. APP. D.C.
70, 130 F.2D 233. 

FN5  COMPARE ASSOCIATED PRESS V. LABOR BOARD, 301 U.S. 103, 128-9; IN
RE DUTY ON ESTATE OF INCORPORATED COUNCIL, 22 Q.B. 279, 293; MARYLAND &
VIRGINIA MILK PRODUCERS' ASSN. V. DISTRICT OF COLUMBIA, 119 F.2D 787,
790; LA BELLE V. HENNEPIN COUNTY BAR ASSN., 206 MINN. 73 APP. D.C. 399,
119 F.2D 787, 790; LA BELLE V. HENNEPIN COUNTY BAR ASSN., 206 MINN.
290, 294; 288 N.W. 788, 790. 

FN6  110 F.2D 711. 

FN7  COMPARE FASHION ORIGINATOR'S GUILD V. FEDERAL TRADE COMMISSION
312 U.S. 457, 465, 466, 467. 

FN8  110 F.2D 711. 

FN9  38 STAT. 730, SECS. 6 AND 20, 15 U.S.C. 17, 29 U.S.C. 52. 

FN10  47 STAT. 70, SECS. 4, 5, 6, 8 AND 13, 29 U.S.C. SECS. 104, 105,
106, 108 AND 113. 

MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR THE DECISION OF THIS CASE. 
..END :















U.S. EX REL. MARCUS V. HESS, 317 U.S. 537 


NO. 173.  ARGUED DECEMBER 10, 1942.  - DECIDED JANUARY 18, 1943.  - 127
F.2D 233, REVERSED. 


1.  SECTION 5438 OF THE REVISED STATUTES, WHICH SUBJECTS TO THE
PENALTIES THEREIN PRESCRIBED "EVERY PERSON WHO  ...  CAUSES TO BE
PRESENTED, FOR PAYMENT  ...  ANY CLAIM UPON OR AGAINST THE GOVERNMENT
OF THE UNITED STATES,  ...  KNOWING SUCH CLAIM TO BE  ...  FRAUDULENT
...  ," HELD APPLICABLE TO CONTRACTORS WHO, BY COLLUSIVE BIDDING,
OBTAINED CONTRACTS WITH MUNICIPALITIES AND SCHOOL DISTRICTS OF A STATE
FOR WORK ON FEDERAL PUBLIC WORKS ADMINISTRATION PROJECTS, AND WHO WERE
PAID FOR THEIR WORK UNDER THE CONTRACTS LARGELY WITH FUNDS GRANTED BY
THE FEDERAL PUBLIC WORKS ADMINISTRATOR.  P. 542. 

COMPETITIVE BIDDING WAS A FEDERAL REQUIREMENT; ALL BIDDERS WERE FULLY
ADVISED THAT THESE WERE P.W.A. PROJECTS; AND MANY IF NOT MOST OF THE
CONTRACTORS CERTIFIED THAT THEIR BIDS WERE "GENUINE AND NOT SHAM OR
COLLUSIVE."  WHILE PAYMENT ITSELF, IN THE SENSE OF THE DIRECT
TRANSFERRING OF CHECKS, WAS DONE IN THE NAME OF LOCAL AUTHORITIES,
MONTHLY ESTIMATES FOR PAYMENT WERE SUBMITTED BY THE CONTRACTORS TO THE
LOCAL SPONSORS ON P.W.A. FORMS WHICH SHOWED THE GOVERNMENT'S
PARTICIPATION IN THE WORK AND CALLED ATTENTION TO OTHER FEDERAL
STATUTES PROHIBITING FRAUDULENT CLAIMS.  IT WAS A PREREQUISITE TO THE
CONTRACTORS' PAYMENT BY THE LOCAL SPONSORS THAT THESE ESTIMATES BE
FILED, TRANSMITTED TO, AND APPROVED BY, THE P.W.A. AUTHORITIES. 
PAYMENT WAS THEN MADE FROM A JOINT CONSTRUCTION BANK ACCOUNT CONTAINING
BOTH FEDERAL AND LOCAL FUNDS.  THE WORK WAS DONE UNDER CONSTANT FEDERAL
SUPERVISION. 

2.  R.S. SEC. 5438 IS TO BE CONSTRUED, NOT WITH THE "UTMOST
STRICTNESS," BUT ACCORDING TO ITS FAIR INTENDMENT.  P. 541. 

3.  THE SUBSTANTIVE LANGUAGE OF R.S. SEC. 5438 CAN NOT BE SAID TO
HAVE ONE MEANING IN CRIMINAL PROSECUTIONS AND ANOTHER IN QUI TAM
SUITS.  P. 542. 

4.  THE FIRST, SECOND, AND THIRD CLAUSES OF R.S. SEC. 5438, TAKEN
TOGETHER, INDICATE A PURPOSE TO REACH ANY PERSON WHO KNOWINGLY ASSISTED
IN CAUSING THE GOVERNMENT TO PAY CLAIMS WHICH WERE GROUNDED IN FRAUD,
WITHOUT REGARD TO WHETHER THE PERSON HAD DIRECT CONTRACTUAL RELATIONS
WITH THE GOVERNMENT.  P. 544. 

5.  THE QUI TAM ACTION WHICH R.S. SECS. 3491-3493 AUTHORIZES "ANY
PERSON" TO BRING FOR THE RECOVERY OF THE SUMS WHICH R.S. SEC. 3490
PROVIDES SHALL BE FORFEITED AND PAID TO THE UNITED STATES BY VIOLATORS
OF R.S. SEC. 5438, IS NOT BARRED BY THE FACT THAT THE OFFENDERS HAVE
BEEN INDICTED AND, ON PLEAS OF NOLO CONTENDERE, FINED FOR DEFRAUDING
THE GOVERNMENT IN CONNECTION WITH THE SAME TRANSACTIONS; NOR BY THE
FACT THAT THE COMPLAINANT MAY HAVE OBTAINED HIS INFORMATION FROM THE
INDICTMENT AND MAY HAVE CONTRIBUTED NOTHING TO THE DISCOVERY OF THE
CRIME.  P. 545. 

6.  CONSIDERATIONS OF POLICY IN PERMITTING QUI TAM ACTIONS IN THE
CIRCUMSTANCES OF THIS CASE ARE FOR CONGRESS AND NOT THE COURTS.  P.
546. 

7.  A RESPONDENT ON CERTIORARI MAY URGE IN SUPPORT OF THE JUDGMENT A
GROUND WHICH WAS REJECTED BY THE DISTRICT COURT AND NOT CONSIDERED IN
THE CIRCUIT COURT OF APPEALS.  P. 548. 

8.  PERSONS WHO HAVE PREVIOUSLY BEEN INDICTED AND CONVICTED UNDER 18
U.S.C. SEC. 88 FOR CONSPIRACY TO DEFRAUD THE GOVERNMENT, ARE NOT
SUBJECTED TO DOUBLE JEOPARDY IN VIOLATION OF THE FIFTH AMENDMENT BY A
SUBSEQUENT QUI TAM ACTION UNDER R.S. SECS. 3490-3493, THOUGH ARISING
OUT OF THE SAME TRANSACTIONS.  P. 548. 

9.  THE PROCEEDINGS UNDER R.S. SECS. 3490-3493 HERE INVOLVED ARE
REMEDIAL AND IMPOSE A CIVIL SANCTION.  P. 549. 

10.  THE PROCEEDING AUTHORIZED BY R.S. SECS. 3490-3493 DOES NOT LOSE
ITS QUALITY AS A CIVIL ACTION THOUGH MORE THAN THE PRECISE AMOUNT OF SO
CALLED ACTUAL DAMAGE BE RECOVERED.  P. 550. 

11.  THE WORDS "FORFEIT AND PAY" IN R.S. SEC. 3490 ARE NOT
INCONSISTENT WITH THE CONCLUSION THAT THE ACTION AUTHORIZED BY SECS.
3490-3493 IS CIVIL.  P. 551. 

12.  IN THE CIRCUMSTANCES OF THIS CASE, THE LUMP SUM IN DAMAGES
AUTHORIZED BY R.S. SEC. 3490($2,000 FORFEIT FOR DOING "ANY" OF THE ACTS
PROHIBITED BY R.S. SEC. 5438) WAS PROPERLY ASSESSED FOR EACH PUBLIC
WORKS ADMINISTRATION PROJECT INVOLVED.  P. 552. 

UNITED STATES EX REL. MARCUS ET AL. V. HESS ET AL.* 

*SEE ALSO OSTRAGER'S CASE, POST, P. 562. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 613, TO REVIEW THE REVERSAL OF A JUDGMENT, 41
F.SUPP.  197, AGAINST THE DEFENDANTS IN A QUI TAM ACTION UNDER R.S.
SECS. 3490-3493. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, ELECTRICAL CONTRACTORS, WERE EMPLOYED TO WORK ON P.W.A.
PROJECTS IN THE PITTSBURGH AREA.  THEIR CONTRACTS WERE MADE WITH LOCAL
GOVERNMENTAL UNITS RATHER THAN WITH THE UNITED STATES GOVERNMENT, BUT A
SUBSTANTIAL PORTION OF THEIR PAY CAME FROM THE UNITED STATES.  CHARGING
THE RESPONDENTS WITH DEFRAUDING THE UNITED STATES THROUGH THE DEVICE OF
COLLUSIVE BIDDING ON THESE PROJECTS,  FN1  THE PETITIONER, IN THE NAME
OF THE UNITED STATES AND ON HIS OWN BEHALF BROUGHT THIS ACTION UNDER
SEC. 5438 AND SECS. 3490-3493(31 U.S.C. SECS. 231-234) OF THE REVISED
STATUTES. 

THE SECTIONS, NOW DISTRIBUTED THROUGH THE STATUTES, ARE PARTS OF WHAT
WAS ORIGINALLY THE ACT OF MARCH 2, 1863, 12 STAT. 696.  SECTION 5438
CONTAINS THAT PORTION OF THE ORIGINAL ACT WHICH MAKES CERTAIN EFFORTS
TO DEFRAUD THE GOVERNMENT A CRIME PUNISHABLE BY FINE AND IMPRISONMENT. 
FN2 SECTION 3490 SEPARATELY PROVIDES THAT WHOEVER COMMITS "ANY" OF THE
PROHIBITED ACTS SHALL "FORFEIT AND PAY TO THE UNITED STATES THE SUM OF
TWO THOUSAND DOLLARS, AND IN ADDITION, DOUBLE THE AMOUNT OF DAMAGES
...  SUSTAINED  ...  TOGETHER WITH THE COSTS OF SUIT; AND SUCH
FORFEITURE AND DAMAGES SHALL BE SUED FOR IN THE SAME SUIT."  UNDER
SECS. 3491, 3493, THIS LATTER ACTION MAY BE INSTITUTED BY "ANY" PERSON
IN BEHALF OF THE GOVERNMENT, AND WHERE SUCH A QUI TAM ACTION IS
BROUGHT, HALF THE AMOUNT OF THE RECOVERY IS PAID TO THE PERSON
INSTITUTING THE SUIT WHILE THE OTHER HALF GOES TO THE GOVERNMENT. 

IN THE INSTANT CASE, VERDICT AND JUDGMENT FOR $315,000 WERE RENDERED
AGAINST THE DEFENDANTS, OF WHICH $203,000 WAS FOR DOUBLE DAMAGES AND
$112,000 WAS AN AGGREGATE OF $2,000 SUMS FOR 56 VIOLATIONS OF SEC.
5438.  41 F.SUPP.  197.  THE CIRCUIT COURT OF APPEALS WAS OF THE
OPINION THAT THE GOVERNMENT HAD BEEN DEFRAUDED - A CONCLUSION NOT
CHALLENGED HERE  FN3  - BUT HELD THAT THE PARTICULAR FRAUD WAS NOT
REACHED BY SEC. 5438.  IT ACCORDINGLY REVERSED.  127 F.2D 233. 

FIRST.  THE COURT BELOW, CONSTRUING SEC. 5438 WITH "UTMOST
STRICTNESS" ON THE PREMISE THAT QUI TAM OR INFORMER ACTIONS "HAVE
ALWAYS BEEN REGARDED WITH DISFAVOR" BY THE COURTS, EMPHASIZED THE
ABSENCE OF A DIRECT CONTRACTUAL RELATIONSHIP BETWEEN THE RESPONDENTS
AND THE UNITED STATES, AND HELD THAT "THE CLAIMS OF THE DEFENDANTS THEN
WERE SIMPLY AGAINST THE LOCAL MUNICIPALITIES.  SINCE THE DEFENDANTS HAD
NO CLAIM UPON OR AGAINST THE UNITED STATES, THIS ACTION WAS NOT
AUTHORIZED BY THE INFORMER STATUTES." 

WE CANNOT ACCEPT EITHER THE INTERPRETIVE APPROACH OR THE ACTUAL
DECISION OF THE COURT BELOW.  QUI TAM SUITS HAVE BEEN FREQUENTLY
PERMITTED BY LEGISLATIVE ACTION,  FN4  AND HAVE NOT BEEN WITHOUT
DEFENSE BY THE COURTS.  FN5  MOREOVER, THIS INTERPRETATION OF "UTMOST
STRICTNESS" NARROWS NOT ONLY THE QUI TAM ASPECT OF THE ACT, BUT ALSO
THE CRIMINAL PROVISIONS.  THE DECISION BELOW TREATS THE LANGUAGE OF
SEC. 5438 IN SUCH FASHION THAT NO CRIMINAL PROCEEDINGS COULD BE BROUGHT
AGAINST THE RESPONDENTS, A RESULT TO WHICH THE POLICY ON QUI TAM
ACTIONS IS IMMATERIAL EVEN IF IT EXISTS OR COULD PROPERLY BE APPLIED. 
THIS "QUI TAM POLICY" CANNOT BE USED TO DETRACT FROM THE MEANING OF THE
LANGUAGE IN THE CRIMINAL SECTION; AND WE CANNOT SAY THAT THE SAME
SUBSTANTIVE LANGUAGE HAS ONE MEANING IF CRIMINAL PROSECUTIONS ARE
BROUGHT BY PUBLIC OFFICIALS AND QUITE A DIFFERENT MEANING WHERE THE
SAME LANGUAGE IS INVOKED BY AN INFORMER. 

CONGRESS HAS POWER TO CHOOSE THIS METHOD TO PROTECT THE GOVERNMENT
FROM BURDENS FRAUDULENTLY IMPOSED UPON IT; TO NULLIFY THE CRIMINAL
STATUTE BECAUSE OF DISLIKE OF THE INDEPENDENT INFORMER SECTIONS WOULD
BE TO EXERCISE A VETO POWER WHICH IS NOT OURS.  SOUND RULES OF
STATUTORY INTERPRETATION EXIST TO DISCOVER AND NOT TO DIRECT THE
CONGRESSIONAL WILL.  TRUE, SEC. 5438 IS CRIMINAL AND FOR THAT REASON IN
INTERPRETING SO MUCH OF ITS LANGUAGE AS IT SHARES IN COMMON WITH SEC.
3490 WE MUST GIVE IT CAREFUL SCRUTINY LEST THOSE BE BROUGHT WITHIN ITS
REACH WHO ARE NOT CLEARLY INCLUDED; BUT AFTER SUCH SCRUTINY WE MUST
GIVE IT THE FAIR MEANING OF ITS INTENDMENT.  CF. UNITED STATES V.
RAYNOR, 302 U.S. 540, 552. 

WE THINK THE CONDUCT OF THESE RESPONDENTS COMES WELL WITHIN THE
PROHIBITION OF THE STATUTE, WHICH INCLUDES "EVERY PERSON WHO ...
CAUSES TO BE PRESENTED, FOR PAYMENT  ...  ANY CLAIM UPON OR AGAINST THE
GOVERNMENT OF THE UNITED STATES  ...  KNOWING SUCH CLAIM TO BE  ...
FRAUDULENT."  THIS CAN BEST BE SEEN UPON CONSIDERATION OF THE EXACT
NATURE OF RESPONDENTS' RELATION TO THE GOVERNMENT.  THE CONTRACTS FOUND
TO HAVE BEEN INDUCED BY THE RESPONDENTS' FRAUDS WERE MADE BETWEEN THEM
AND LOCAL MUNICIPALITIES AND SCHOOL DISTRICTS OF ALLEGHENY COUNTY,
PENNSYLVANIA.  A LARGE PORTION OF THE MONEY PAID THE RESPONDENTS UNDER
THESE CONTRACTS WAS FEDERAL IN ORIGIN, GRANTED BY THE FEDERAL PUBLIC
WORKS ADMINISTRATOR, AN OFFICIAL OF THE UNITED STATES.  40 U.S.C.
401(A).  THE JURY AND BOTH COURTS HAVE FOUND THAT THE CONTRACTS WERE
OBTAINED BY A SUCCESSFULLY EXECUTED CONSPIRACY TO REMOVE ALL POSSIBLE
COMPETITION FROM "COMPETITIVE BIDDING."  THE BIDDING ITSELF WAS A
FEDERAL REQUIREMENT; ALL BIDDERS WERE FULLY ADVISED THAT THESE WERE
P.W.A. PROJECTS; AND MANY IF NOT MOST OF THE RESPONDENTS CERTIFIED THAT
THEIR BIDS WERE "GENUINE AND NOT SHAM OR COLLUSIVE."  WHILE PAYMENT
ITSELF, IN THE SENSE OF THE DIRECT TRANSFERRING OF CHECKS, WAS DONE IN
THE NAME OF LOCAL AUTHORITIES, MONTHLY ESTIMATES FOR PAYMENT WERE
SUBMITTED BY THE RESPONDENTS TO THE LOCAL SPONSORS ON P.W.A. FORMS
WHICH SHOWED THE GOVERNMENT'S PARTICIPATION IN THE WORK AND CALLED
ATTENTION TO OTHER FEDERAL STATUTES PROHIBITING FRAUDULENT CLAIMS.  IT
WAS A PREREQUISITE TO RESPONDENTS' PAYMENT BY THE LOCAL SPONSORS THAT
THESE ESTIMATES BE FILED, TRANSMITTED TO, AND APPROVED BY, THE P.W.A.
AUTHORITIES.  PAYMENT WAS THEN MADE FROM A JOINT CONSTRUCTION BANK
ACCOUNT CONTAINING BOTH FEDERAL AND LOCAL FUNDS.  THE WORK WAS DONE
UNDER CONSTANT FEDERAL SUPERVISION. 

THE GOVERNMENT'S MONEY WOULD NEVER HAVE BEEN PLACED IN THE JOINT FUND
FOR PAYMENT TO RESPONDENTS HAD ITS AGENTS KNOWN THE BIDS WERE
COLLUSIVE.  BY THEIR CONDUCT, THE RESPONDENTS THUS CAUSED THE
GOVERNMENT TO PAY CLAIMS OF THE LOCAL SPONSORS IN ORDER THAT THEY MIGHT
IN TURN PAY RESPONDENTS UNDER CONTRACTS FOUND TO HAVE BEEN EXECUTED AS
THE RESULT OF THE FRAUDULENT BIDDING.  THIS FRAUD DID NOT SPEND ITSELF
WITH THE EXECUTION OF THE CONTRACT.  ITS TAINT ENTERED INTO EVERY
SWOLLEN ESTIMATE WHICH WAS THE BASIC CAUSE FOR PAYMENT OF EVERY DOLLAR
PAID BY THE P.W.A. INTO THE JOINT FUND FOR THE BENEFIT OF RESPONDENTS. 
THE INITIAL FRAUDULENT ACTION AND EVERY STEP THEREAFTER TAKEN PRESSED
EVER TO THE ULTIMATE GOAL - PAYMENT OF GOVERNMENT MONEY TO PERSONS WHO
HAD CAUSED IT TO BE DEFRAUDED. 

GOVERNMENT MONEY IS AS TRULY EXPENDED WHETHER BY CHECKS DRAWN
DIRECTLY AGAINST THE TREASURY TO THE ULTIMATE RECIPIENT OR BY GRANTS IN
AID TO STATES.  WHILE AT THE TIME OF THE PASSAGE OF THE ORIGINAL 1863
ACT, FEDERAL AID TO STATES CONSISTED PRIMARILY OF LAND GRANTS, IN
SUBSEQUENT YEARS THE STATE AID PROGRAM HAS GROWN SO THAT IN 1941
APPROXIMATELY 10% OF ALL FEDERAL MONEY WAS DISTRIBUTED IN THIS FORM. 
FN6  THESE FUNDS ARE AS MUCH IN NEED OF PROTECTION FROM FRAUDULENT
CLAIMS AS ANY OTHER FEDERAL MONEY,  FN7  AND THE STATUTE DOES NOT MAKE
THE EXTENT OF THEIR SAFEGUARD DEPENDENT UPON THE BOOKKEEPING DEVICES
USED FOR THEIR DISTRIBUTION.  THE SENATORIAL SPONSOR OF THIS BILL
BROADLY ASSERTED THAT ITS OBJECT WAS TO PROVIDE PROTECTION AGAINST
THOSE WHO WOULD "CHEAT THE UNITED STATES."  FN8  THE FRAUD HERE COULD
NOT HAVE BEEN ANY MORE OF AN EFFORT TO CHEAT THE UNITED STATES IF THERE
HAD BEEN NO STATE INTERMEDIARY. 

THE CONCLUSION THAT THE FIRST CLAUSE OF SEC. 5438 INCLUDES THIS FORM
OF "CAUSING TO BE PRESENTED" A "CLAIM UPON OR AGAINST THE GOVERNMENT"
IS STRENGTHENED BY CONSIDERATION OF THE OTHER CLAUSES OF THE STATUTE. 
CLAUSE 2 INCLUDES THOSE WHO DO THE FORBIDDEN ACTS FOR THE PURPOSE OF
"AIDING TO OBTAIN" PAYMENT OF FRAUDULENT CLAIMS; CLAUSE 3 COVERS "ANY
AGREEMENT, COMBINATION OR CONSPIRACY" TO DEFRAUD THE GOVERNMENT BY
"OBTAINING OR AIDING TO OBTAIN THE PAYMENT OR ALLOWANCE OF ANY FALSE OR
FRAUDULENT CLAIM."  THESE PROVISIONS, CONSIDERED TOGETHER, INDICATE A
PURPOSE TO REACH ANY PERSON WHO KNOWINGLY ASSISTED IN CAUSING THE
GOVERNMENT TO PAY CLAIMS WHICH WERE GROUNDED IN FRAUD, WITHOUT REGARD
TO WHETHER THAT PERSON HAD DIRECT CONTRACTUAL RELATIONS WITH THE
GOVERNMENT. 

THE SITUATION HERE IS IN NO SENSE LIKE THAT DISCUSSED IN UNITED
STATES V. COHN, 270 U.S. 339, 345-347, WHERE THE GOVERNMENT ACTED
SOLELY AS BAILEE AND NO PERSON HAD ANY CLAIM AGAINST IT FOR A PAYMENT. 
THE COURT IN THE COHN CASE HELD THAT THERE HAD BEEN NO "WRONGFUL
OBTAINING OF MONEY ...  OF THE GOVERNMENT'S," WHILE THERE HAS BEEN SUCH
A "WRONGFUL OBTAINING" HERE ON CLAIMS WHICH WERE PRESENTED EITHER
DIRECTLY OR INDIRECTLY TO THE GOVERNMENT WITH FULL KNOWLEDGE BY THE
CLAIMANTS OF THEIR FRAUDULENT BASIS. 

WE CONCLUDE THAT THESE ACTS ARE COVERED BY THE STATUTE UNDER
CONSIDERATION. 

SECOND.  PREVIOUS TO THE FILING OF THIS ACTION THESE RESPONDENTS WERE
INDICTED FOR DEFRAUDING THE GOVERNMENT AND ON A PLEA OF NOLO CONTENDERE
WERE FINED $54,000.  THEY AND THE GOVERNMENT, WHICH HAS FILED A BRIEF
AMICUS CURIAE AT OUR REQUEST, ASSERT THAT THE PETITIONER RECEIVED HIS
INFORMATION NOT BY HIS OWN INVESTIGATION, BUT FROM THE PREVIOUS
INDICTMENT; AND BOTH ARGUE THAT SECS. 3490-93 SHOULD NOT UNDER SUCH
CIRCUMSTANCES BE CONSTRUED AS PERMITTING SUIT BY THE PETITIONER.  THE
PETITIONER DENIES THAT HE RELIED UPON THE INFORMATION CONTAINED IN THE
INDICTMENT, ASSERTS THAT HE SPENT MONEY IN CONDUCTING AN INVESTIGATION
OF HIS OWN, AND CLAIMS THAT HE PRESENTED MORE EVIDENCE THAN THE
GOVERNMENT HAD DISCOVERED. 

EVEN IF, AS THE GOVERNMENT SUGGESTS, THE PETITIONER HAS CONTRIBUTED
NOTHING TO THE DISCOVERY OF THIS CRIME, HE HAS CONTRIBUTED MUCH TO
ACCOMPLISHING ONE OF THE PURPOSES FOR WHICH THE ACT WAS PASSED.  THE
SUIT RESULTS IN A NET RECOVERY TO THE GOVERNMENT OF $150,000, THREE
TIMES AS MUCH AS THE FINES IMPOSED IN THE CRIMINAL PROCEEDINGS; AND
THIS RECOVERY WAS OBTAINED AT THE RISK OF A CONSIDERABLE LOSS TO THE
PETITIONER SINCE SEC. 3491 EXPLICITLY PROVIDES THAT THE INFORMER MUST
BEAR THE RISK OF HAVING TO PAY THE FULL COST OF THE LITIGATION. 

NEITHER THE LANGUAGE OF THE STATUTE NOR ITS HISTORY LENDS SUPPORT TO
THE CONTENTION MADE BY RESPONDENTS AND THE GOVERNMENT.  "SUITS MAY BE
BROUGHT AND CARRIED ON BY ANY PERSON," SAYS THE ACT, AND THERE ARE NO
WORDS OF EXCEPTION OR QUALIFICATION SUCH AS WE ARE ASKED TO FIND.  FN9
THE SENATE SPONSOR OF THE BILL EXPLICITLY POINTED OUT THAT HE WAS NOT
OFFERING A PLAN AIMED SOLELY AT REWARDING THE CONSPIRATOR WHO BETRAYS
HIS FELLOWS, BUT THAT EVEN A DISTRICT ATTORNEY, WHO WOULD PRESUMABLY
GAIN ALL KNOWLEDGE OF A FRAUD FROM HIS OFFICIAL POSITION, MIGHT SUE AS
THE INFORMER: 

"THE BILL OFFERS, IN SHORT, A REWARD TO THE INFORMER WHO COMES INTO
COURT AND BETRAYS HIS CO-CONSPIRATOR, IF HE BE SUCH; BUT IT IS NOT
CONFINED TO THAT CLASS.  EVEN THE DISTRICT ATTORNEY, WHO IS REQUIRED TO
BE VIGILANT IN THE PROSECUTION OF SUCH CASES, MAY BE ALSO THE INFORMER,
AND ENTITLE HIMSELF TO ONE HALF THE FORFEITURE UNDER THE QUI TAM
CLAUSE, AND TO ONE HALF OF THE DOUBLE DAMAGES WHICH MAY BE RECOVERED
AGAINST THE PERSONS COMMITTING THE ACT."  FN10 

THE GOVERNMENT PRESSES UPON US STRONG ARGUMENTS OF POLICY AGAINST THE
STATUTORY PLAN, BUT THE ENTIRE FORCE OF THESE CONSIDERATIONS IS
DIRECTED SOLELY AT WHAT THE GOVERNMENT THINKS CONGRESS SHOULD HAVE DONE
RATHER THAN AT WHAT IT DID.  IT IS SAID THAT EFFECTIVE LAW ENFORCEMENT
REQUIRES THAT CONTROL OF LITIGATION BE LEFT TO THE ATTORNEY GENERAL;
FN11  THAT DIVIDED CONTROL IS AGAINST THE PUBLIC INTEREST; THAT THE
ATTORNEY GENERAL MIGHT BELIEVE THAT WAR INTERESTS WOULD BE INJURED BY
FILING SUITS SUCH AS THIS; THAT PERMISSION TO OUTSIDERS TO SUE MIGHT
BRING UNSEEMLY RACES FOR THE OPPORTUNITY OF PROFITING FROM THE
GOVERNMENT'S INVESTIGATIONS; AND FINALLY THAT CONDITIONS HAVE CHANGED
SINCE THE ACT WAS PASSED IN 1863.  BUT THE TROUBLE WITH THESE ARGUMENTS
IS THAT THEY ARE ADDRESSED TO THE WRONG FORUM.  CONDITIONS MAY HAVE
CHANGED, BUT THE STATUTE HAS NOT. 

FURTHERMORE, ONE OF THE CHIEF PURPOSES OF THE ACT, WHICH WAS ITSELF
FIRST PASSED IN WAR TIME, WAS TO STIMULATE ACTION TO PROTECT THE
GOVERNMENT AGAINST WAR FRAUDS.  FN12  TO THAT END, PROSECUTING
ATTORNEYS WERE ENJOINED TO BE DILIGENT IN ENFORCEMENT OF THE ACT'S
PROVISIONS, AND LARGE REWARDS WERE OFFERED TO STIMULATE ACTIONS BY
PRIVATE PARTIES SHOULD THE PROSECUTING OFFICERS BE TARDY IN BRINGING
THE SUITS. 

THE VERY FACT THAT CONGRESS PASSED THIS STATUTE SHOWS THAT IT
CONCLUDED THAT OTHER CONSIDERATIONS OF POLICY OUTWEIGHED THOSE NOW
EMPHASIZED BY THE GOVERNMENT; FOR MOST OF THE ARGUMENTS MADE HERE
MILITATE AGAINST ANY INFORMER ACTION AT ALL.  HAD THE GOVERNMENT FILED
A SUIT PRIOR TO THAT INSTITUTED BY THIS PETITIONER, A DIFFERENT
QUESTION WOULD BE PRESENTED.  CF. FRANCIS V. UNITED STATES, 5 WALL. 
338.  UNDER THE CIRCUMSTANCES HERE, WE COULD NOT, WITHOUT MATERIALLY
DETRACTING FROM ITS CLEAR SCOPE, DECLINE TO RECOGNIZE THE PETITIONER'S
RIGHT TO SUE UNDER THE ACT.    THIRD.  AS NOTED ABOVE, RESPONDENTS HAD
PREVIOUSLY BEEN INDICTED AND FINED FOR DEFRAUDING THE GOVERNMENT IN
CONNECTION WITH THE SAME TRANSACTIONS FOR WHICH THEY ARE NOW BEING
SUED.  THEY CONTEND THAT THE PRESENT ACTION SHOULD BE BARRED BECAUSE OF
THE "DOUBLE JEOPARDY" PROVISION OF THE FIFTH AMENDMENT WHICH PROVIDES
THAT NO PERSON SHALL "BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT
IN JEOPARDY OF LIFE OR LIMB."  THE PREVIOUS INDICTMENT WAS BROUGHT
UNDER A GENERAL STATUTE DEALING WITH CONSPIRACY TO DEFRAUD THE
GOVERNMENT, 18 U.S.C. SEC. 88, AND IS CLEARLY CRIMINAL IN NATURE.  FOR
VIOLATION OF IT RESPONDENTS WERE LIABLE FOR A FINE UP TO $10,000 OR
IMPRISONMENT FOR TWO YEARS, OR BOTH.  FOR FAILURE TO PAY THEIR FINES,
THEY COULD HAVE BEEN SENTENCED TO PRISON.  EX PARTE WATKINS, 7 PET.
568.  THE PUNISHMENT GIVEN IN THAT ACTION WAS NOT INTENDED TO
COMPENSATE THE GOVERNMENT, IN ANY MANNER, FOR DAMAGES IT SUFFERED AS A
RESULT OF SUCCESSFUL EXECUTION OF THE CONSPIRACY.  RESPONDENTS'
CONTENTION WAS OVERRULED BY THE DISTRICT COURT AND WAS NOT CONSIDERED
IN THE COURT OF APPEALS.  IT IS NOW URGED UPON US AS AN INDEPENDENT
GROUND OF SUPPORT FOR THE JUDGMENT REACHED BELOW.  CF. HELVERING V.
GOWRAN, 302 U.S. 238, 245. 

THE APPLICATION OF THE DOUBLE JEOPARDY CLAUSE TO PARTICULAR CASES HAS
NOT BEEN AN EASY TASK FOR THE COURTS.  THE SUBJECT HAS RECENTLY BEEN
THOROUGHLY EXPLORED IN HELVERING V. MITCHELL, 303 U.S. 391, IN WHICH
THE COURT ANALYZED THE CASES NOW PRESSED UPON US AND EMPHASIZED THE
LINE BETWEEN CIVIL, REMEDIAL ACTIONS BROUGHT PRIMARILY TO PROTECT THE
GOVERNMENT FROM FINANCIAL LOSS AND ACTIONS INTENDED TO AUTHORIZE
CRIMINAL PUNISHMENT TO VINDICATE PUBLIC JUSTICE.  ONLY THE LATTER
SUBJECT THE DEFENDANT TO "JEOPARDY" WITHIN THE CONSTITUTIONAL MEANING. 
IBID., 397, 398.  WE MAY START THEREFORE WITH THE LANGUAGE OF THE
MITCHELL CASE:  "CONGRESS MAY IMPOSE BOTH A CRIMINAL AND A CIVIL
SANCTION IN RESPECT TO THE SAME ACT OR OMISSION; FOR THE DOUBLE
JEOPARDY CLAUSE PROHIBITS MERELY PUNISHING TWICE, OR ATTEMPTING A
SECOND TIME TO PUNISH CRIMINALLY, FOR THE SAME OFFENSE.  THE QUESTION
FOR DECISION IS THUS WHETHER  ...  (THE STATUTE IN QUESTION)  ...
IMPOSES A CRIMINAL SANCTION.  THAT QUESTION IS ONE OF STATUTORY
CONSTRUCTION."  IBID., 399.  IS THE ACTION NOW BEFORE US, CONSISTING OF
DOUBLE DAMAGES AND THE $2,000 FORFEITURE, CRIMINAL OR REMEDIAL? 

IT IS ENOUGH FOR PRESENT PURPOSES IF WE CONCLUDE THAT THE INSTANT
PROCEEDINGS ARE REMEDIAL AND IMPOSE A CIVIL SANCTION.  THE STATUTES ON
WHICH THIS SUIT RESTS MAKE ELABORATE PROVISION BOTH FOR A CRIMINAL
PUNISHMENT AND A CIVIL REMEDY.  VIOLATORS OF SEC. 5438 MAY "BE
IMPRISONED AT HARD LABOR FOR NOT LESS THAN ONE NOR MORE THAN FIVE
YEARS, OR FINED NOT LESS THAN ONE THOUSAND NOR MORE THAN FIVE THOUSAND
DOLLARS."  WE CANNOT SAY THAT THE REMEDY NOW BEFORE US REQUIRING
PAYMENT OF A LUMP SUM AND DOUBLE DAMAGES WILL DO MORE THAN AFFORD THE
GOVERNMENT COMPLETE INDEMNITY FOR THE INJURIES DONE IT.  HELVERING V.
MITCHELL, SUPRA, 401. 

IT IS, OF COURSE, WELL ACCEPTED THAT FOR ONE ACT A PERSON MAY BE
LIABLE BOTH TO PAY DAMAGES AND TO SUFFER A CRIMINAL PENALTY.  LONG AGO,
THIS COURT SAID, "A MAN MAY BE COMPELLED TO MAKE REPARATIONS IN DAMAGES
TO THE INJURED PARTY, AND BE LIABLE ALSO TO PUNISHMENT FOR A BREACH OF
THE PUBLIC PEACE, IN CONSEQUENCE OF THE SAME ACT; AND MAY BE SAID, IN
COMMON PARLANCE TO BE TWICE PUNISHED FOR THE SAME OFFENSE."  MOORE V.
ILLINOIS, 14 HOW.  13, 19, 20.  CONGRESS HAS "POWER TO GIVE AN ACTION
FOR DAMAGES TO AN INDIVIDUAL WHO SUFFERS BY BREACH OF THE LAW." 
CHATTANOOGA FOUNDRY V. ATLANTA, 203 U.S. 390, 396, 397.  AND IT HAS
THIS SAME POWER WHEN IT, RATHER THAN SOME PRIVATE INDIVIDUAL, IS
INJURED BY A FRAUD.  QUITE ASIDE FROM ITS INTEREST AS PRESERVER OF THE
PEACE, THE GOVERNMENT WHEN SPENDING ITS MONEY HAS THE SAME INTEREST IN
PROTECTING ITSELF FROM FRAUDULENT PRACTICES AS IT HAS IN PROTECTING ANY
CITIZEN FROM FRAUDS WHICH MAY BE PRACTICED UPON HIM.  "THE POWERS OF
THE UNITED STATES AS A SOVEREIGN, DEALING WITH OFFENDERS AGAINST THEIR
LAWS, MUST NOT BE CONFOUNDED WITH THEIR RIGHTS AS A BODY POLITIC.  IT
WOULD PRESENT A STRANGE ANOMALY, INDEED, IF, HAVING THE POWER TO MAKE
CONTRACTS AND HOLD PROPERTY AS OTHER PERSONS, NATURAL OR ARTIFICIAL,
THEY WERE NOT ENTITLED TO THE SAME REMEDIES FOR THEIR PROTECTION." 
COTTON V. UNITED STATES, 11 HOW.  229, 231. 

THIS REMEDY DOES NOT LOSE THE QUALITY OF A CIVIL ACTION BECAUSE MORE
THAN THE PRECISE AMOUNT OF SO-CALLED ACTUAL DAMAGE IS RECOVERED.  AS TO
THE DOUBLE DAMAGE PROVISION, IT CANNOT BE SAID THAT THERE IS ANY
RECOVERY IN EXCESS OF ACTUAL LOSS FOR THE GOVERNMENT, SINCE IN THE
NATURE OF THE QUI TAM ACTION THE GOVERNMENT'S HALF OF THE DOUBLE
DAMAGES IS THE AMOUNT OF ACTUAL DAMAGES PROVED.  BUT IN ANY CASE,
CONGRESS MIGHT HAVE PROVIDED HERE AS IT DID IN THE ANTI-TRUST LAWS FOR
RECOVERY OF "THREEFOLD DAMAGES  ...  SUSTAINED AND THE COST OF SUIT,
INCLUDING A REASONABLE ATTORNEY'S FEE."  15 U.S.C. SEC. 15.  FN13
CONGRESS COULD REMAIN FULLY IN THE COMMON LAW TRADITION AND STILL
PROVIDE PUNITIVE DAMAGES.  "BY THE COMMON AS WELL AS BY STATUTE LAW,
MEN ARE OFTEN PUNISHED FOR AGGRAVATED MISCONDUCT OR LAWLESS ACTS BY
MEANS OF CIVIL ACTION AND THE DAMAGES INFLICTED BY WAY OF PENALTY OR
PUNISHMENT GIVEN TO THE PARTY INJURED."  DAY V. WOODWORTH, 13 HOW. 
363, 371.  THIS COURT HAS NOTED THE GENERAL PRACTICE IN STATE STATUTES
OF ALLOWING DOUBLE OR TREBLE OR EVEN QUADRUPLE DAMAGES.  MISSOURI
PACIFIC RY. CO. V. HUMES, 115 U.S. 512, 523.  PUNITIVE OR EXEMPLARY
DAMAGES HAVE BEEN HELD RECOVERABLE UNDER A STATUTE LIKE THIS WHICH
COMBINES PROVISION FOR CRIMINAL PUNISHMENT WITH OTHERS WHICH AFFORD A
CIVIL REMEDY TO THE INDIVIDUAL INJURED.  O'SULLIVAN V. FELIX, 233 U.S.
318, 324, 325.  THE LAW CAN PROVIDE THE SAME MEASURE OF DAMAGE FOR THE
GOVERNMENT AS IT CAN FOR AN INDIVIDUAL. 

IT IS ARGUED THAT THE $2,000 "FORFEIT AND PAY" PROVISION IS
"CRIMINAL" RATHER THAN "CIVIL," EVEN IF THE DOUBLE DAMAGE FEATURE IS
NOT.  THE WORDS "FORFEIT AND PAY" RELATE ALIKE TO THE $2,000 SUM AND
THE DOUBLE DAMAGES.  THE USE OF THE WORD "FORFEIT" IN CONJUNCTION WITH
THE WORD "PAY" DOES NOT FORCE THE CONCLUSION THAT THE PROVISION IS
CRIMINAL.  NO ONE DOUBTS THAT CONGRESS COULD HAVE ACCOMPLISHED THE SAME
RESULT BY AUTHORIZING "DOUBLE" OR "QUADRUPLE" OR "PUNITIVE" DAMAGES OR
A LUMP SUM PAYMENT FOR ATTORNEY'S FEES, OR BY DEFINITION OF THE
ELEMENTS OF "ACTUAL DAMAGES."  SPECIAL CONSEQUENCE CANNOT BE DRAWN FROM
THE USE OF THE WORD "FORFEIT."  WHILE THIS MIGHT UNDER OTHER
CIRCUMSTANCES BE AN APPROPRIATE WORD TO SUGGEST A FINE UPON THE FAILURE
TO PAY WHICH AN INDIVIDUAL MIGHT BE IMPRISONED, NO SUCH PUNISHMENT IS
PROVIDED HERE UPON DEFAULT IN PAYMENT.  THE WORDS "FORFEIT AND PAY" ARE
WHOLLY CONSISTENT WITH A CIVIL ACTION FOR DAMAGES.  ATCHISON, T. & S.F.
RY. CO. V. NICHOLS, 264 U.S. 348, 350-352; CF. HEPNER V. UNITED STATES,
213 U.S. 103, 104-111. 

IT IS TRUE THAT "PUNISHMENT, IN A CERTAIN AND VERY LIMITED SENSE, MAY
BE THE RESULT OF THE STATUTE BEFORE US SO FAR AS THE WRONG-DOER IS
CONCERNED," BUT THIS IS NOT ENOUGH TO LABEL IT AS A CRIMINAL STATUTE. 
BRADY V. DALY, 175 U.S. 148, 157.  WE THINK THE CHIEF PURPOSE OF THE
STATUTES HERE WAS TO PROVIDE FOR RESTITUTION TO THE GOVERNMENT OF MONEY
TAKEN FROM IT BY FRAUD, AND THAT THE DEVICE OF DOUBLE DAMAGES PLUS A
SPECIFIC SUM WAS CHOSEN TO MAKE SURE THAT THE GOVERNMENT WOULD BE MADE
COMPLETELY WHOLE.  THIS CONCLUSION IS CONSISTENT WITH A STATEMENT MADE
IMMEDIATELY BEFORE FINAL PASSAGE OF THE BILL.  A SENATOR DISCUSSING
THESE SECTIONS SAID:  "THE GOVERNMENT OUGHT TO HAVE THE PRIVILEGE OF
COMING UPON HIM (A FRAUDULENT CONTRACTOR) OR HIS ESTATE AND HIS HEIRS
AND RECOVERING THE MONEY OF WHICH IT IS DEFRAUDED."  FN14  THE INHERENT
DIFFICULTY OF CHOOSING A PROPER SPECIFIC SUM WHICH WOULD GIVE FULL
RESTITUTION WAS A PROBLEM FOR CONGRESS. 

FOURTH.  SECTION 3490 REQUIRES THAT THE $2,000 FORFEIT BE PAID FOR
DOING "ANY" OF THE ACTS PROHIBITED BY SEC. 5438.  BEFORE THE DISTRICT
COURT, PETITIONER CONTENDED THAT THIS SUM SHOULD BE EXACTED FOR EVERY
FORM SUBMITTED BY RESPONDENTS IN THE COURSE OF THEIR ENTERPRISE, WHILE
RESPONDENTS ARGUED THAT THERE SHOULD BE MERELY ONE $2,000 SUM COLLECTED
FOR ALL THE ACTS DONE.  THE DISTRICT COURT CONCLUDED THAT THE LUMP SUM
IN DAMAGES SHOULD BE ASSESSED FOR EACH SEPARATE P.W.A. PROJECT. 
PETITIONER DOES NOT OBJECT TO THIS DECISION AND WE CONCLUDE THAT UNDER
THE CIRCUMSTANCES OF THIS CASE EACH PROJECT CAN PROPERLY BE COUNTED
SEPARATELY.  THE INCIDENCE OF THE FRAUD ON EACH ADDITIONAL PROJECT IS
AS CLEARLY INDIVIDUALIZED AS IS THE THEFT OF MAIL FROM SEPARATE BAGS IN
A POST OFFICE, EBELING V. MORGAN, 237 U.S. 625; AND SEE BLOCKBURGER V.
UNITED STATES, 284 U.S. 299.  CF. GAVIERES V. UNITED STATES, 220 U.S.
338, 342.  UNDER RESPONDENTS' VIEW THE LUMP SUM TO BE PAID WOULD BE
ABOUT $30.00 A PROJECT; AND WE CANNOT SUPPOSE THAT CONGRESS MEANT THUS
TO REDUCE THE DAMAGES RECOVERABLE FOR RESPONDENTS' FRAUD AND THEREBY
ALLOW THEM TO SPREAD THE BURDEN PROGRESSIVELY THINNER OVER PROJECTS
EACH OF WHICH INDIVIDUALLY INCREASED THEIR PROFIT. 

WE HAVE EXAMINED THE OTHER CONTENTIONS OF THE RESPONDENTS AND APPROVE
OF THE DISPOSITION OF THEM BY THE COURTS BELOW.  THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF THE DISTRICT COURT IS
AFFIRMED.  REVERSED. 

FN1  THE NATURE OF THE COLLUSIVE BIDDING SCHEME WAS DESCRIBED BY THE
COURT BELOW AS FOLLOWS: "THE APPELLANTS, THE OFFICERS AND MEMBERS OF
THE ELECTRICAL CONTRACTORS ASSOCIATION OF PITTSBURGH, CONSPIRED TO RIG
THE BIDDING ON THESE PROJECTS.  THE PATTERN OF THE COLLUSION WAS THE
INFORMAL AND PRIVATE AVERAGING OF THE PROSPECTIVE BID WHICH MIGHT HAVE
BEEN SUBMITTED BY EACH APPELLANT.  AN APPELLANT CHOSEN BY THE OTHERS
WOULD THEN SUBMIT A BID FOR THE AVERAGED AMOUNT AND THE OTHERS ALL
SUBMITTED HIGHER ESTIMATES.  THE GOVERNMENT WAS THEREBY DEFRAUDED IN
THAT IT WAS COMPELLED TO CONTRIBUTE MORE FOR THE ELECTRIC WORK ON THE
PROJECTS THAN IT WOULD HAVE BEEN REQUIRED TO PAY HAD THERE BEEN FREE
COMPETITION IN THE OPEN MARKET."  127 F.2D 233, 234. 

FN2  SECTION 5438 INCLUDES THREE CATEGORIES OF ACTS SUBJECT TO THE
PENALTY WHICH IT PRESCRIBES.  THE FIRST OF THESE CLAUSES, WHICH IN OUR
OPINION GOVERNS THE INSTANT CASE, COVERS "EVERY PERSON WHO MAKES OR
CAUSES TO BE MADE, OR PRESENTS OR CAUSES TO BE PRESENTED, FOR PAYMENT
OR APPROVAL, TO OR BY ANY PERSON OR OFFICER IN THE CIVIL, MILITARY OR
NAVAL SERVICE OF THE UNITED STATES, ANY CLAIM UPON OR AGAINST THE
GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT OR OFFICER THEREOF,
KNOWING SUCH CLAIM TO BE FALSE, FICTITIOUS, OR FRAUDULENT  ...  "  THE
SECOND CLAUSE GOVERNS THE USE OF FALSE CERTIFICATES, ETC., FOR THE
PURPOSE OF OBTAINING OR AIDING TO OBTAIN PAYMENT OF SUCH A CLAIM, AND
THE THIRD COVERS CONSPIRACY TO DEFRAUD THE GOVERNMENT BY OBTAINING OR
AIDING TO OBTAIN THE PAYMENT OF A CLAIM.  THIS SECTION, WITH AMENDMENTS
NOT RELEVANT TO ACTIONS UNDER SEC. 3490, NOW APPEARS AS 18 U.S.C. SECS.
80, 83. 

FN3  CF. MCMULLEN V. HOFFMAN, 174 U.S. 639, 649.  FOR THE GENERAL
FEDERAL COMPETITIVE BIDDING STATUTE SEE 41 U.S.C. SEC. 5. 

FN4  "STATUTES PROVIDING FOR ACTIONS BY A COMMON INFORMER, WHO
HIMSELF HAS NO INTEREST WHATEVER IN THE CONTROVERSY OTHER THAN THAT
GIVEN BY STATUTE, HAVE BEEN IN EXISTENCE FOR HUNDREDS OF YEARS IN
ENGLAND, AND IN THIS COUNTRY EVER SINCE THE FOUNDATION OF OUR
GOVERNMENT," MARVIN V. TROUT, 199 U.S. 212, 225.  SOME SUCH STATUTES
ARE 18 U.S.C. SEC. 23(ARMING VESSELS AGAINST FRIENDLY POWERS); 31
U.S.C. SECS. 155, 163(BREACHES OF DUTY BY THE TREASURER OR THE REGISTER
OF THE UNITED STATES); 25 U.S.C. SECS. 193, 201(PROTECTION OF INDIANS);
AND SEE FOOTNOTE 9, INFRA.  FOR A STATUTE DEALING WITH THE ALLOCATION
OF COSTS IN PENAL ACTIONS BROUGHT BY AN INFORMER, SEE 28 U.S.C. SEC.
823.  STATUTES PROVIDING FOR A REWARD TO INFORMERS WHICH DO NOT
SPECIFICALLY EITHER AUTHORIZE OR FORBID THE INFORMER TO INSTITUTE THE
ACTION ARE CONSTRUED TO AUTHORIZE HIM TO SUE, ADAMS V. WOODS, 2 CRANCH
336. 

FN5  IN SUPPORT OF THE VIEW OF THE COURT BELOW, SEE TAFT V. STEVENS
LITH.  AND ENG. CO., 38 F. 28; BUT CF. UNITED STATES V. GRISWOLD, 24 F.
361, 366, IN WHICH THE COURT SPEAKING OF THIS SECTION SAYS:  "THE
STATUTE IS A REMEDIAL ONE.  IT IS INTENDED TO PROTECT THE TREASURY
AGAINST THE HUNGRY AND UNSCRUPULOUS HOST THAT ENCOMPASSES IT ON EVERY
SIDE, AND SHOULD BE CONSTRUED ACCORDINGLY.  IT WAS PASSED UPON THE
THEORY, BASED ON EXPERIENCE AS OLD AS MODERN CIVILIZATION, THAT ONE OF
THE LEAST EXPENSIVE AND MOST EFFECTIVE MEANS OF PREVENTING FRAUDS ON
THE TREASURY IS TO MAKE THE PERPETRATORS OF THEM LIABLE TO ACTIONS BY
PRIVATE PERSONS ACTING, IF YOU PLEASE, UNDER THE STRONG STIMULUS OF
PERSONAL ILL WILL OR THE HOPE OF GAIN.  PROSECUTIONS CONDUCTED BY SUCH
MEANS COMPARE WITH THE ORDINARY METHODS AS THE ENTERPRISING PRIVATEER
DOES TO THE SLOW-GOING PUBLIC VESSEL." 

FN6  KEY, THE ADMINISTRATION OF FEDERAL GRANTS TO STATES,
INTRODUCTION; BUREAU OF THE CENSUS STATE AND LOCAL GOVERNMENT SPECIAL
STUDY NO. 19, FEDERAL AND STATE AID 1941, 4. 

FN7  SEE KEY, SUPRA, CHAPTER 4, "THE AUDIT." 

FN8  CONGRESSIONAL GLOBE, 37TH CONG., 3RD SESS., 952. 

FN9  THERE IS OF COURSE NO REASON WHY CONGRESS COULD NOT, IF IT HAD
CHOSEN TO DO SO, HAVE PROVIDED SPECIFICALLY FOR THE AMOUNT OF NEW
INFORMATION WHICH THE INFORMER MUST PRODUCE TO BE ENTITLED TO REWARD. 
SIMPLE INFORMERS WHO MERELY GIVE INFORMATION WITHOUT FORMALLY
INSTITUTING ACTIONS MAY COLLECT AN AWARD FOR AIDING IN THE CONVICTION
OF NARCOTIC LAW VIOLATORS "IF SO DIRECTED BY THE COURT."  21 U.S.C.
SEC. 183.  CF. THE AUTHORITY OF THE SECRETARY OF LABOR WHO IS
AUTHORIZED TO APPROVE AWARDS TO INFORMERS IN CONTRACT LABOR CASES.  8
U.S.C. SECS. 139-140.  THE RIGHT OF ACTION ITSELF MAY BE SUBJECT TO
CONTROL BY AN ADMINISTRATIVE OFFICIAL, AS ARE ACTIONS UNDER 18 U.S.C.
SEC. 642 CONCERNING VIOLATIONS OF SHIPPING LAWS.    FN10  CONG. GLOBE,
SUPRA, 955, 956. 

FN11  THIS CONSIDERATION IS APPARENTLY DIRECTED SOLELY AT THE
DEPARTMENT OF JUSTICE'S DESIRE TO CONTROL THE INSTITUTION OF THESE
ACTIONS RATHER THAN THEIR SETTLEMENT.  SEC. 3491 PROVIDES THAT THE
INFORMER SUITS "SHALL NOT BE WITHDRAWN OR DISCONTINUED WITHOUT THE
CONSENT, IN WRITING, OF THE JUDGE OF THE COURT AND THE DISTRICT
ATTORNEY, FIRST FILED IN THE CASE, SETTING FORTH THEIR REASONS FOR SUCH
CONSENT."  THE AUTHORITY THUS GIVEN THE DISTRICT ATTORNEY IS PRESUMABLY
AIMED AT PREVENTION OF FRAUDULENT SETTLEMENTS. 

FN12  FOR A DISCUSSION OF THE SITUATION WHICH GAVE RISE TO THE ACT,
SEE REPORT OF THE HOUSE COMMITTEE ON GOVERNMENT CONTRACTS, MARCH 3,
1863; THE DISCUSSION IN THE SENATE ON THIS BILL, CONG. GLOBE, SUPRA,
952, ET SEQ.; THE OPINION OF THE COURT BELOW, 127 F.2D AT 235; AND
RANDALL, CIVIL WAR AND RECONSTRUCTION, 419, 427, 633. 

FN13  THIS COURT IN MEEKER V. LEHIGH VALLEY R. CO., 236 U.S. 412, 432
33, SUSTAINED THE VALIDITY OF SECS. 8 AND 16 OF THE INTERSTATE COMMERCE
ACT WHICH AUTHORIZED PAYMENT OF ATTORNEY FEES TO SHIPPERS INJURED AS A
RESULT OF VIOLATION OF THE ACT BY RAILROADS. 

FN14  CONG. GLOBE, SUPRA, 958. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

I AGREE WITH THE DECISION OF THE COURT.  BUT IT SEEMS TO ME THAT THE
PLEA OF DOUBLE JEOPARDY SHOULD BE REJECTED ON A GROUND OTHER THAN THAT
TAKEN BY THE COURT.  IN ALL OTHER RESPECTS I JOIN IN ITS OPINION. 

THIS IS A QUI TAM ACTION UNDER R.S. SEC. 3490 TO RECOVER A
"FORFEITURE" AND "DOUBLE THE AMOUNT OF DAMAGES WHICH THE UNITED STATES
MAY HAVE SUSTAINED" BY REASON OF THE SAME ACTS OF FRAUD FOR WHICH THE
RESPONDENTS WERE PREVIOUSLY INDICTED UNDER SEC. 37 OF THE CRIMINAL
CODE, 18 U.S.C. SEC. 88, AND FOR WHICH SUBSTANTIAL FINES WERE IMPOSED
UPON THEM.  THE FIFTH AMENDMENT GUARANTEES THAT NO PERSON SHALL "BE
SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR
LIMB."  THE RESPONDENTS INVOKE THIS PROVISION AS A BAR TO THIS SUIT;
AND AS I UNDERSTAND ITS HOLDING, THE COURT REJECTS THIS PLEA OF DOUBLE
JEOPARDY BY TREATING THE PRESENT ACTION AS ONE MERELY TO MAKE THE
UNITED STATES WHOLE FOR ACTUAL LOSS, AND THEREFORE WITHOUT ANY PUNITIVE
ELEMENTS.  THE COURT REACHES THIS CONCLUSION BY APPLYING THE
DISTINCTION TAKEN IN HELVERING V. MITCHELL, 303 U.S. 391, 400, BETWEEN
"SANCTIONS THAT ARE REMEDIAL AND THOSE THAT ARE PUNITIVE."  THE
ARGUMENT SEEMS TO RUN THUS:  DOUBLE JEOPARDY MEANS ATTEMPTING TO PUNISH
CRIMINALLY TWICE; THIS IS NOT AN ATTEMPT TO PUNISH CRIMINALLY BECAUSE
IT IS A CIVIL PROCEEDING; IT IS A CIVIL PROCEEDING BECAUSE, AS A MATTER
OF "STATUTORY CONSTRUCTION," IT IS A "CIVIL SANCTION" WHICH IS BEING
ENFORCED HERE; AND THE SANCTION IS "CIVIL" BECAUSE IT IS "REMEDIAL" AND
NOT "PUNITIVE" IN NATURE. 

SUCH DIALECTICAL SUBTLETIES MAY SERVE WELL ENOUGH FOR PURPOSES OF
EXPLAINING AWAY UNCRITICAL LANGUAGE IN EARLIER CASES.  SEE, FOR
INSTANCE, UNITED STATES V. CHOUTEAU, 102 U.S. 603, COFFEY V. UNITED
STATES, 116 U.S. 436, AND UNITED STATES V. LA FRANCA, 282 U.S. 568. 
BUT THEY ARE TOO SUBTLE WHEN THE PROBLEM IS ONE OF SAFEGUARDING THE
HUMANE INTERESTS FOR THE PROTECTION OF WHICH THE DOUBLE JEOPARDY CLAUSE
WAS WRITTEN INTO THE FIFTH AMENDMENT. 

PUNITIVE ENDS MAY BE PURSUED IN CIVIL PROCEEDINGS, AND, CONVERSELY,
THE CRIMINAL PROCESS IS FREQUENTLY EMPLOYED TO ATTAIN REMEDIAL RATHER
THAN PUNITIVE ENDS.  IT IS FOR THIS REASON THAT SCIENTER HAS NOT BEEN
DEEMED TO BE A REQUIREMENT IN SOME CRIMINAL PROSECUTIONS.  "MANY
INSTANCES OF THIS ARE TO BE FOUND IN REGULATORY MEASURES IN THE
EXERCISE OF WHAT IS CALLED THE POLICE POWER WHERE THE EMPHASIS OF THE
STATUTE IS EVIDENTLY UPON ACHIEVEMENT OF SOME SOCIAL BETTERMENT RATHER
THAN THE PUNISHMENT OF THE CRIMES  ...  "  UNITED STATES V. BALINT, 258
U.S. 250, 252. 

THE PROTECTION AGAINST TWICE BEING PUNISHED FOR THE SAME OFFENSE
SHOULD HARDLY BE MADE TO DEPEND UPON THE NECESSARILY SPECULATIVE
JUDGMENT OF A COURT WHETHER A "FORFEITURE" AND "DOUBLE THE AMOUNT OF
DAMAGES WHICH THE UNITED STATES MAY HAVE SUSTAINED" CONSTITUTES AN
EXTRA PENALTY, OR MERELY AN INDEMNITY FOR LOSS SUFFERED.  IF THAT IS
THE ISSUE ON WHICH THE PROTECTION AGAINST DOUBLE JEOPARDY TURNS, THOSE
WHO INVOKE THE CONSTITUTION, AS DO THE RESPONDENTS HERE, OUGHT TO BE
ALLOWED TO PROVE THAT, AS A MATTER OF FACT, THE FORFEITURE AND THE
DOUBLE DAMAGES ARE PUNITIVE BECAUSE THEY EXCEED ANY AMOUNT THAT COULD
REASONABLY BE REGARDED AS THE EQUIVALENT OF COMPENSATION FOR THE
GOVERNMENT'S LOSS.  THAT IN CIVIL ACTIONS PUNITIVE DAMAGES ARE, AS A
MATTER OF DUE PROCESS, SOMETIMES ALLOWED, SEE SHEVLIN-CARPENTER CO. V.
MINNESOTA, 218 U.S. 57, 69-70, OR THAT THERE MAY BE DISTINCT PENAL AND
REMEDIAL PROVISIONS FOR THE SAME WRONG, SEE O'SULLIVAN V. FELIX, 233
U.S. 318, 325, DOES NOT HELP SOLVE OUR PRESENT PROBLEM, WHICH ARISES
WHEN A SECOND SEPARATE PROCEEDING AGAINST THE SAME PERSONS FOR THE SAME
MISCONDUCT RESULTS IN A PLEA BASED UPON THE DOUBLE JEOPARDY CLAUSE.  WE
MUST ALSO PUT TO ONE SIDE THE DOCTRINE OF RES JUDICATA.  THIS IS
LARGELY A JUDICIAL DOCTRINE, THOUGH PARTLY REFLECTED IN THE FULL FAITH
AND CREDIT CLAUSE, ARTICLE IV, SEC. 1, AND IS AIMED AT AVOIDING THE
WASTE AND VEXATION OF RELITIGATING ISSUES ALREADY DECIDED BETWEEN THE
SAME PARTIES.  THE DOCTRINE OF DOUBLE JEOPARDY HAS A DIFFERENT
HISTORY.  IT IS PART OF THE PROTECTION OF THE CONSTITUTION AGAINST
PRESSURES AND PENALTIES THAT OFFEND CIVILIZED NOTIONS OF JUSTICE. 

IN MY VIEW THE PROPER APPROACH TO THE PROBLEM OF DOUBLE JEOPARDY IN A
SITUATION LIKE THIS, WHERE CONGRESS HAS IMPOSED TWO SANCTIONS FOR
MISCONDUCT, HOWEVER ONE MAY LABEL THEM, AND HAS PROVIDED FOR THEIR
ENFORCEMENT IN TWO SEPARATE PROCEEDINGS, IS THAT WHICH WAS TAKEN BY
JUDGE (LATER MR. JUSTICE) BLATCHFORD IN IN RE LESZYNSKY, 16 BLATCHF. 
9.  THE SHORT OF IT IS THAT WHERE TWO SUCH PROCEEDINGS MERELY CARRY OUT
THE REMEDIES WHICH CONGRESS HAS PRESCRIBED IN ADVANCE FOR A WRONG, THEY
DO NOT TWICE PUT A MAN IN JEOPARDY FOR THE SAME OFFENSE.  CONGRESS
THEREBY MERELY ALLOWS THE COMPREHENSIVE PENALTIES WHICH IT HAS IMPOSED
TO BE ENFORCED IN SEPARATE SUITS INSTEAD OF IN A SINGLE PROCEEDING.  BY
DOING THIS CONGRESS DOES NOT IMPOSE MORE THAN A SINGLE PUNISHMENT.  AND
THE DOUBLE JEOPARDY CLAUSE DOES NOT PREVENT CONGRESS FROM PRESCRIBING
SUCH A PROCEDURE FOR THE VINDICATION OF PUNITIVE REMEDIES. 

THIS VIEW COMMENDS ITSELF TO REASON.  IT IS CONFIRMED BY HISTORY. 
FOR LEGISLATION OF THIS CHARACTER, PROVIDING TWO SANCTIONS FOR THE SAME
MISCONDUCT, ENFORCEABLE IN SEPARATE PROCEEDINGS, ONE A CONVENTIONAL
CRIMINAL PROSECUTION, AND THE OTHER A FORFEITURE PROCEEDING OR A CIVIL
ACTION AS UPON A DEBT, WAS QUITE COMMON WHEN THE FIFTH AMENDMENT WAS
FRAMED BY CONGRESS.  SEE, E.G., THE MATERIALS REFERRED TO IN IN RE
LESZYNSKY, SUPRA, AT 16-19.  LIKE OTHER SPECIFIC PROVISIONS OF THE
CONSTITUTION, THE DOUBLE JEOPARDY CLAUSE MUST BE READ IN THE CONTEXT OF
ITS TIMES.  IT WOULD DO VIOLENCE TO PROPER REGARD FOR THE FRAMERS OF
THE FIFTH AMENDMENT TO ASSUME THAT THEY CONTEMPORANEOUSLY ENACTED AND
CONTINUED TO ENACT LEGISLATION THAT WAS OFFENSIVE TO THE GUARANTEES OF
THE DOUBLE JEOPARDY CLAUSE WHICH THEY HAD PROPOSED FOR RATIFICATION. 

IF IT BE SUGGESTED THAT A SUCCESSION OF SEPARATE TRIALS FOR THE
ENFORCEMENT OF A GREAT NUMBER OF CRIMINAL SANCTIONS, EVEN THOUGH SET
FORTH IN ADVANCE IN A SINGLE STATUTE, MIGHT BE A FORM OF CRUELTY OR
OPPRESSION, THE ANSWER IS THAT THE CONSTITUTION ITSELF HAS GUARDED
AGAINST SUCH AN ATTEMPT "TO WEAR THE ACCUSED OUT BY A MULTITUDE OF
CASES WITH ACCUMULATED TRIALS," SEE PALKO V. CONNECTICUT, 302 U.S. 319,
328, BY PROHIBITING "CRUEL AND UNUSUAL PUNISHMENTS."  AMENDMENT VIII. 
BUT SHORT OF THAT WHICH WOULD OFFEND THE EIGHTH AMENDMENT, STATUTES
PRESCRIBING CUMULATIVE REMEDIES HAVE BEEN COMMONPLACES IN THE HISTORY
OF FEDERAL LEGISLATION.  THE SHERMAN LAW, FOR EXAMPLE, ALLOWS FOUR
MEANS OF REDRESSING A SINGLE OFFENSE - CRIMINAL PROSECUTION,
INJUNCTION, SEIZURE OF GOODS, AND TREBLE DAMAGES.  IF A QUI TAM ACTION
LIKE THE ONE NOW BEFORE US WERE TO BE PROVIDED BY CONGRESS AS A FURTHER
DETERRENT AGAINST VIOLATION OF THE SHERMAN LAW, IT WOULD CERTAINLY BE
COMMONLY REGARDED AS AN ADDITIONAL PUNISHMENT.  BUT THE DOUBLE JEOPARDY
CLAUSE WOULD NEVERTHELESS NOT COME INTO PLAY. 

IT IS FOR THESE REASONS THAT I THINK THE PLEA OF DOUBLE JEOPARDY IN
THIS CASE CANNOT BE SUSTAINED. 

MR. JUSTICE JACKSON, DISSENTING: 

I AM CONSTRAINED TO DISSENT FROM THE SECOND DIVISION OF THE OPINION
AND FROM THE CONCLUSION IT SUPPORTS. 

I CANNOT DENY THAT ON A LITERAL READING THE STATUTE SAYS WHAT THE
COURT'S OPINION RENDERS IT TO SAY.  THAT BEING THE CASE, ONE CANNOT BE
CRITICAL OF THOSE WHO STAY CLOSE TO THE WORDS OF THE STATUTE BECAUSE
GUIDING PRINCIPLES AS TO WHERE TO DEPART AND IN WHAT DIRECTION TO
DEPART AND HOW FAR TO DEPART FROM THE LITERAL WORDS OF A STATUTE ARE SO
CONFLICTING. 

BUT THAT WE HAVE IN THESE MATTERS CONSIDERABLE, ALTHOUGH ILL-DEFINED,
FREEDOM IS CERTAIN.  I COULD NOT BETTER STATE MY ATTITUDE TOWARD THE
PRESENT STATUTE AS APPLIED TO THIS CASE THAN IN THE LANGUAGE OF THE
PRESENT CHIEF JUSTICE IN UNITED STATES V. KATZ, 271 U.S. 354, 357: 

"ALL LAWS ARE TO BE GIVEN A SENSIBLE CONSTRUCTION; AND A LITERAL
APPLICATION OF A STATUTE, WHICH WOULD LEAD TO ABSURD CONSEQUENCES,
SHOULD BE AVOIDED WHENEVER A REASONABLE APPLICATION CAN BE GIVEN TO IT,
CONSISTENT WITH THE LEGISLATIVE PURPOSE." 

NOR WAS HE ANNOUNCING UNORTHODOX OR UNCONVENTIONAL DOCTRINE.  IN
AMERICAN TOBACCO CO. V. WERCKMEISTER, 207 U.S. 284, 293, MR. JUSTICE
DAY SAID: 

"BUT IN CONSTRUING A STATUTE WE ARE NOT ALWAYS CONFINED TO A LITERAL
READING, AND MAY CONSIDER ITS OBJECT AND PURPOSE, THE THINGS WITH WHICH
IT IS DEALING, AND THE CONDITION OF AFFAIRS WHICH LED TO ITS ENACTMENT
SO AS TO EFFECTUATE RATHER THAN DESTROY THE SPIRIT AND FORCE OF THE LAW
WHICH THE LEGISLATURE INTENDED TO ENACT. 

"IT IS TRUE, AND THE PLAINTIFF IN ERROR CITES AUTHORITIES TO THE
PROPOSITION, THAT WHERE THE WORDS OF AN ACT ARE CLEAR AND UNAMBIGUOUS
THEY WILL CONTROL.  BUT WHILE SEEKING TO GAIN THE LEGISLATIVE INTENT
PRIMARILY FROM THE LANGUAGE USED WE MUST REMEMBER THE OBJECTS AND
PURPOSES SOUGHT TO BE ATTAINED."  FN1 

IF EVER WE ARE JUSTIFIED IN READING A STATUTE, NOT NARROWLY AS
THROUGH A KEYHOLE, BUT IN THE BROAD LIGHT OF THE EVILS IT AIMED AT AND
THE GOOD IT HOPED FOR, IT IS HERE.  THE ONLY DISADVANTAGE THEREFROM
FALLS ON ONE WHO SUES, NOT TO BE MADE WHOLE FOR INJURIES HE HAS
SUSTAINED, OR TO RECOVER FOR GOODS HE HAS DELIVERED, OR SERVICES HE HAS
PERFORMED, BUT SOLELY TO MAKE PROFITABLE TO HIMSELF THE WRONG DONE BY
OTHERS.  WE SHOULD, OF COURSE, FULLY SUSTAIN INFORMERS IN PROCEEDINGS
WHERE CONGRESS HAS UTILIZED THEIR SELF-INTEREST AS AN AID TO LAW
ENFORCEMENT.  INFORMERS WHO DISCLOSE LAW VIOLATIONS EVEN FOR THE WORST
OF MOTIVES PLAY AN IMPORTANT PART IN MAKING MANY LAWS EFFECTIVE.  BUT
THERE IS NOTHING IN THE TEXT OR HISTORY OF THIS STATUTE WHICH INDICATES
TO ME THAT CONGRESS INTENDED TO ENRICH A MERE BUSYBODY WHO COPIES A
GOVERNMENT'S INDICTMENT AS HIS OWN COMPLAINT AND WHO BRINGS TO LIGHT NO
FRAUDS NOT ALREADY DISCLOSED AND NO INJURY TO THE TREASURY NOT ALREADY
IN PROCESS OF VINDICATION. 

IN THIS CASE THE GOVERNMENT INVESTIGATED RESPONDENTS AND ON NOVEMBER
3, 1939, INDICTED THEM FOR CONSPIRACY TO DEFRAUD.  ON JANUARY 5 AND
FEBRUARY 6, 1940, THE DEFENDANTS NAMED IN THE INDICTMENT ENTERED PLEAS
OF NOLO CONTENDERE, AND FINES WERE IMPOSED.  WHILE THE CRIMINAL CASE
WAS STILL PENDING, AND ON JANUARY 25, 1940, PETITIONER COMMENCED HIS
INFORMER PROCEEDING, THE AVERMENTS IN HIS COMPLAINT BEING SUBSTANTIALLY
A COPY OF THE INDICTMENT.  IT IS NOT SHOWN THAT HE HAD ANY ORIGINAL
INFORMATION, THAT HE HAD ADDED ANYTHING BY INVESTIGATIONS OF HIS OWN,
OR THAT HIS RECOVERY IS BASED ON ANY FACT NOT DISCLOSED BY THE
GOVERNMENT ITSELF.  IN THE COMPANION CASE (POST, P. 562) THE GOVERNMENT
INDICTED AND PLEAS OF NOLO CONTENDERE WERE ENTERED ON JANUARY 15, 1940,
AND TWO WEEKS THEREAFTER OSTRAGER FILED HIS COMPLAINT ALLEGING FACTS
SUBSTANTIALLY IDENTICAL WITH THOSE IN THE INDICTMENT, SOME OF THE
PARAGRAPHS BEING ALMOST VERBATIM COPIES.  WE ARE INFORMED THAT THESE
CASES HAVE ALREADY STIMULATED A NUMBER OF OTHER PRIVATE INDIVIDUALS TO
INTERVENE WITH SIMILAR ACTION AFTER GOVERNMENT CRIMINAL PROCEEDINGS HAD
DISCLOSED FRAUDS. 

I AM SURE IT WAS NEVER IN THE MIND OF CONGRESS TO AUTHORIZE THIS
MISUSE OF THE STATUTE.  IF EVER THERE WAS A CASE WHERE THE LETTER
KILLETH BUT THE SPIRIT GIVETH LIFE, IT IS THIS.  CONSTRUED TO THE
LETTER AS THE COURT DOES, IT BECOMES AN INSTRUMENT OF ABUSE AND
CORRUPTION WHICH CAN ONLY BE STOPPED BY THE TIMELY INTERVENTION OF
CONGRESS.  IF IT WERE CONSTRUED ACCORDING TO ITS SPIRIT TO REWARD THOSE
WHO DISCLOSE FRAUDS OTHERWISE CONCEALED OR WHO PROSECUTE FRAUDS
OTHERWISE UNPUNISHED, IT WOULD SERVE A USEFUL PURPOSE IN THE
ENFORCEMENT OF THE LAW AND PROTECTION OF THE TREASURY. 

SINCE 1863 THIS LAW HAS BEEN UPON THE STATUTE BOOKS.  NEVER UNTIL NOW
HAS THE BAR DREAMED THAT IT PERMITTED SUCH USE.  WHEN ONCE IT WAS
ATTEMPTED TO COMMENCE AN INFORMER ACTION UNDER A SIMILAR STATUTE AFTER
THE GOVERNMENT HAD BROUGHT A CIVIL ACTION, THIS COURT PROMPTLY LIMITED
THE STATUTE TO PRECLUDE THAT SORT OF ABUSE.  FRANCIS V. UNITED STATES,
5 WALL.  338.  THERE WAS NO SPECIFIC LANGUAGE IN THE STATUTE TO SUPPORT
THAT COURT-MADE LIMITATION, AND ALTHOUGH I FIND NO SPECIFIC LANGUAGE IN
THIS STATUTE TO SUPPORT ANOTHER, I SHOULD NOW SAY THAT THE SAME
LIMITATION EXISTS WHERE THE GOVERNMENT HAS ALREADY POSSESSED ITSELF OF
THE FACTS AND DISCLOSED THEM IN CRIMINAL PROCEEDINGS.  THIS IS WHAT I
THINK THE PROFESSION HAS GENERALLY ASSUMED THIS STATUTE TO MEAN.  IF
THE STATUTE HAS ALL THESE EIGHTY YEARS AUTHORIZED THIS SORT OF
PROCEEDING, THE LEGAL PROFESSION OF THE UNITED STATES HAS BEEN
STRANGELY UNRESPONSIVE TO A CONGRESSIONAL PROFFER OF WINDFALL INCOME. 
WE ARE JUSTIFIED IN DETERMINING WHETHER WE WILL ACCEPT A NEW
INTERPRETATION NOT BEFORE SUSTAINED IN THE HISTORY OF THIS STATUTE BY
REFERENCE TO THE CONDITION OF OUR OWN TIMES RATHER THAN TO THOSE OF
FORMER ONES.  NOTHING BETTER ILLUSTRATES THE DIFFERENCE BETWEEN THE
CONDITIONS OF 1863 AND THE PRESENT THAN THE STATEMENT QUOTED BY THE
COURT, MADE BY THE SENATE SPONSOR OF THE INFORMER ACT, "EVEN THE
DISTRICT ATTORNEY, WHO IS REQUIRED TO BE VIGILANT IN THE PROSECUTION OF
SUCH CASES, MAY BE ALSO THE INFORMER, AND ENTITLE HIMSELF TO ONE HALF
THE FORFEITURE UNDER THE QUITAM CLAUSE, AND TO ONE HALF OF THE DOUBLE
DAMAGES WHICH MAY BE RECOVERED AGAINST THE PERSONS COMMITTING THE
ACT."  I DO NOT UNDERSTAND THE COURT TO HOLD THAT A PROSECUTING
ATTORNEY MAY NOW SUE, BUT IN CONSTRUING THE STATUTE AS APPLIED TO THE
PLAINTIFF NOW BEFORE US WE MUST NOT FORGET THAT THE SENATOR WAS THEN
SPEAKING OF LAWENFORCEMENT IN A NATION WHICH HAD NOT YET ESTABLISHED A
FEDERAL DEPARTMENT OF JUSTICE, WHICH DID NOT THEN HAVE A FEDERAL BUREAU
OF INVESTIGATION, OR A TREASURY INVESTIGATING FORCE, AND IN WHICH THE
ACTIVITIES OF THE FEDERAL GOVERNMENT WERE SO CIRCUMSCRIBED THAT THEY
HAD NOT BEEN FOUND NECESSARY.  TO ACCEPT THE VIEW OF 1863 TO MEAN THAT
TODAY LAW-ENFORCEMENT OFFICIALS COULD USE INFORMATION GLEANED IN THEIR
INVESTIGATIONS TO SUE AS INFORMERS FOR THEIR OWN PROFIT, WOULD MAKE THE
LAW A DOWNRIGHT VICIOUS AND CORRUPTING ONE.  FORTUNATELY NO ONE IN THE
EXECUTIVE DEPARTMENT HAS EVER SUSPECTED THAT SUCH AN INTERPRETATION AS
THE COURT NOW INDULGES COULD BE PLACED UPON THIS STATUTE.  IF WE WERE
TO ADD MOTIVES OF PERSONAL AVARICE TO OTHER PROMPTERS OF OFFICIAL ZEAL
THE TIME MIGHT COME WHEN THE SCANDALS OF LAW-ENFORCEMENT WOULD EXCEED
THE SCANDALS OF ITS VIOLATION. 

BUT EVEN AS TO NON-OFFICIALS, TO PERMIT THE INFORMER TO RECOVER WHEN
HE HAS NOT ACTUALLY INFORMED SEEMS TO ME AN EVIL RESULT UNINTENDED BY
THE ACT.  THE COURT'S INTERPRETATION MEANS THAT THE GOVERNMENT CANNOT
INSTITUTE A CRIMINAL ACTION THAT IS NOT SUBJECT TO SEIZURE OF SOME
INTERLOPER WHO THEREBY WRESTS CONTROL OF ITS COURSE FROM THE GOVERNMENT
ITSELF.  AS LAWYERS NOT WITHOUT EXPERIENCE IN THE PRACTICALITIES OF LAW
ENFORCEMENT, WE KNOW THAT THE TRIAL OF A CRIMINAL CASE CAN BE WRECKED
BY PRE-TRIAL OF THE ISSUES ON THE CIVIL SIDE OF THE COURT, PARTICULARLY
IF THE CIVIL TRIAL IS CONDUCTED BY THOSE NOT INTERESTED IN THE CRIMINAL
PROSECUTION.  BY TRIAL, BY TAKING OF DEPOSITIONS, BY OTHER DEVICES, THE
INFORMER MAY FORCE THE PREMATURE DISCLOSURE OF THE GOVERNMENT'S CASE,
AND IT IS CERTAIN THAT BY COLLUSION BETWEEN ONE WHO ACTS AS AN INFORMER
AND THE PARTY GUILTY OF FRAUD THE LATTER COULD OBTAIN A DISCLOSURE OF
THE CASE AGAINST HIM.  WE KNOW, TOO, THAT THE CHANCE OF CONVICTION MAY
WELL BE PREJUDICED IF THE DEFENDANT MAY GO BEFORE THE JURY AND POINT TO
PENDING PROCEEDINGS IN WHICH ADEQUATE REPARATIONS WILL BE MADE.  EVERY
PERSON PROSECUTED FOR CRIME, AS A PART OF THE STRATEGY OF DEFEATING
CONVICTION, WANTS CIVIL ACTIONS BROUGHT AGAINST HIM, AND OFTENTIMES
WANTS TO CONFESS THEM OR SETTLE THEM IN ORDER TO PLEAD THAT HE HAS
SQUARED HIS ACCOUNTS WITH THE LAW. 

MOREOVER, WE KNOW THAT THE ASSETS OF MEN ENGAGED IN CRIMINAL
ACTIVITIES ARE RARELY EQUAL TO THE DISCHARGE OF THEIR OBLIGATIONS AND
IN THAT EVENT BY SHARING THE AVAILABLE ASSETS WITH AN INFORMER, THE
GOVERNMENT'S FINANCIAL RECOVERY IS DIMINISHED. 

ALSO IT HAS BEEN FOUND NECESSARY TO VEST IN SOMEONE THE POWER TO
COMPROMISE CLAIMS OF THE GOVERNMENT, EITHER WHERE THEY ARE OF DOUBTFUL
COLLECTIBILITY OR WHERE THE CLAIM ITSELF IS OF QUESTIONABLE VALIDITY. 
WHAT BECOMES OF THE ATTORNEY GENERAL'S CONTROL OVER LITIGATION IN THIS
RESPECT IF AN INFORMER MAY BE ADMITTED TO SHARE IN THE CONTROL OF THE
CASE AND MAY ACT IN COLLUSION WITH THE GUILTY PARTY?  MAY HE NO LONGER
MAKE A COMPROMISE OF A CASE THAT WILL WITHSTAND SUBSEQUENT ATTACK BY AN
INFORMER? 

IT MUST BE BORNE IN MIND THAT THIS IS NOT A CASE WHERE WE ARE
ADHERING TO A CONSTRUCTION OF A STATUTE WHICH HAS BEEN CONTINUOUSLY
APPLIED OVER ITS LONG LIFE.  IN SUCH EVENT I SHOULD NOT UNLIKELY JOIN
WITH MY COLLEAGUES.  THIS, HOWEVER, IS THE CASE OF A NEW CONSTRUCTION
UPON AN EIGHTY-YEAR-OLD STATUTE, ONE SO FARFETCHED THAT NO MEMBER OF
THE BAR HAS EVER BEFORE VENTURED TO OFFER IT IN ANY REPORTED CASE.  FN2
I WOULD HOLD THAT THE RICH REWARDS OF THIS KIND OF PROCEEDING ARE
RESERVED FOR THOSE WHO ACTUALLY AND IN GOOD FAITH HAVE CONTRIBUTED
SOMETHING TO THE ENFORCEMENT OF THE LAW AND THE PROTECTION OF THE
UNITED STATES. 

FN1  SEE, ALSO, OZAWA V. UNITED STATES, 260 U.S. 178, 194; HELVERING
V. NEW YORK TRUST CO., 292 U.S. 455, 464-5; UNITED STATES V. COOPER
CORP., 312 U.S. 600. 

FN2  CF. UNITED STATES V. COOPER CORP., 312 U.S. 600, 613-614. 
..END :







U.S. EX REL. OSTRAGER V. CONTRACTORS, 317 U.S. 562 


NO. 236.  ARGUED DECEMBER 10, 11, 1942.  - DECIDED JANUARY 18, 1943.  -
127 F.2D 649, REVERSED. 


DECIDED UPON THE AUTHORITY OF UNITED STATES EX REL. MARCUS V. HESS. 
ANTE, P. 537. 

UNITED STATES EX REL. OSTRAGER ET AL. V. NEW ORLEANS CHAPTER,
ASSOCIATED GENERAL CONTRACTORS, INC. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 613, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT IN A QUI TAM ACTION UNDER R.S. SECS. 5438 AND
3490-3493. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS ACTION IS SUBSTANTIALLY SIMILAR TO THAT IN UNITED STATES EX REL.
MARCUS V. HESS, ANTE, P. 537.  RELYING ON SECS. 5438 AND 3490-93,
REVISED STATUTES, THE PETITIONER CHARGES THAT THE RESPONDENTS CAUSED
THE GOVERNMENT $7,620 DAMAGES BY SUBMITTING FRAUDULENT COLLUSIVE BIDS
ON A HOSPITAL CONSTRUCTED WITH FEDERAL PUBLIC WORKS ADMINISTRATION
FINANCIAL ASSISTANCE.  THE PETITIONER IN A QUITAM ACTION ASKS DOUBLE
DAMAGES PLUS $2,000 FROM EACH OF SEVENTEEN RESPONDENTS.  THE
RESPONDENTS HAD PREVIOUSLY BEEN INDICTED BY THE UNITED STATES
GOVERNMENT IN A CRIMINAL ACTION AND HAD PAID FINES TOTALLING $5,000. 

THE RESPONDENTS ANSWERED ON THE MERITS, MADE OTHER PLEADINGS NOT
RELEVANT AT THIS STAGE OF THE CASE, AND OFFERED TWO SPECIAL DEFENSES:
THAT THE ACTION PLACED THEM IN DOUBLE JEOPARDY IN VIOLATION OF THE
FIFTH AMENDMENT AND THAT THE STATUTES INVOLVED DID NOT PROVIDE A BASIS
FOR SUCH A CAUSE OF ACTION.  THE DISTRICT COURT, WITHOUT REACHING THE
MERITS, DISMISSED THE COMPLAINT ON THE THEORY OF DOUBLE JEOPARDY.  THE
CIRCUIT COURT OF APPEALS AFFIRMED THE DISMISSAL OF THE COMPLAINT BUT
RESTED ITS CONCLUSION ON THE BELIEF THAT NO CLAIM AGAINST THE UNITED
STATES WAS INVOLVED SINCE THE UNITED STATES WAS NOT A PARTY TO THE
CONTRACT.  IT RELIED HEAVILY ON THE HESS CASE AS DECIDED BY THE CIRCUIT
COURT. 

FOR THE REASONS SET FORTH IN OUR OPINION IN THE HESS CASE, WE BELIEVE
THAT THE DECISION BELOW SHOULD BE REVERSED.  REVERSED. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION BUT CONCURS ON THE
QUESTION OF DOUBLE JEOPARDY FOR THE REASONS SET FORTH IN HIS OPINION IN
UNITED STATES EX REL. MARCUS V. HESS, ANTE, P. 537.  MR. JUSTICE
JACKSON DISSENTS FOR THE REASONS SET FORTH IN HIS OPINION IN THE SAME
CASE. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 
..END :





















WALLING V. JACKSONVILLE PAPER CO., 317 U.S. 564 


NO. 336.  ARGUED NOVEMBER 19, 20, 1942.  - DECIDED JANUARY 18, 1943.  -
128 F.2D 395, AFFIRMED. 


1.  THE FAIR LABOR STANDARDS ACT IS APPLICABLE TO EMPLOYEES OF A
WHOLESALE PAPER COMPANY WHO ARE ENGAGED IN THE DELIVERY, FROM COMPANY
WAREHOUSES WITHIN A STATE TO CUSTOMERS WITHIN THE SAME STATE, AFTER A
TEMPORARY PAUSE AT SUCH WAREHOUSES, OF GOODS PROCURED OUTSIDE OF THE
STATE UPON PRIOR ORDERS FROM, OR PURSUANT TO CONTRACTS OR
UNDERSTANDINGS WITH, SUCH CUSTOMERS.  P. 567. 

2.  SUCH GOODS RETAIN THEIR CHARACTER AS GOODS IN INTERSTATE COMMERCE
UNTIL FINALLY DELIVERED TO THE CUSTOMER; AND THEY ARE NOT DIVESTED OF
THAT CHARACTER BY THE TEMPORARY PAUSE AT THE WAREHOUSE, OR BY THE FACT
THAT THE COMPANY REGARDS THEM AS STOCK IN TRADE, OR BY THE CIRCUMSTANCE
THAT TITLE TO THEM PASSES TO THE COMPANY UPON THEIR DELIVERY AT ITS
WAREHOUSE.  P. 569. 

3.  AS TO THE COMPANY'S BUSINESS IN OTHER GOODS PROCURED FROM OUTSIDE
OF THE STATE AND DELIVERED FROM THE WAREHOUSES TO CUSTOMERS WITHIN THE
STATE - IT BEING CLAIMED THAT SUCH BUSINESS IS "IN COMMERCE" WITHIN THE
MEANING OF THE ACT BECAUSE THE CUSTOMERS FORM A FAIRLY STABLE GROUP
WHOSE NEEDS CAN BE ANTICIPATED WITH CONSIDERABLE PRECISION - THE
EVIDENCE LACKS THAT PARTICULARITY NECESSARY TO SHOW THAT THE STATUS OF
THE GOODS IN QUESTION WAS DIFFERENT FROM THAT OF GOODS ACQUIRED AND
HELD BY A LOCAL MERCHANT FOR LOCAL DISPOSITION.  P. 569. 

4.  THAT A WHOLESALER WHOSE BUSINESS IS INTRASTATE IS IN COMPETITION
WITH WHOLESALERS DOING INTERSTATE BUSINESS IS OF NO SIGNIFICANCE IN
DETERMINING THE APPLICABILITY OF THE FAIR LABOR STANDARDS ACT, SINCE
THAT ACT DOES NOT EXTEND TO ACTIVITIES "AFFECTING" COMMERCE, BUT ONLY
TO SUCH AS ARE "IN" COMMERCE.  P. 570. 

5.  THAT THE FAIR LABOR STANDARDS ACT IS APPLICABLE TO A WHOLESALER
WHO MAKES PURCHASES OF GOODS OUTSIDE OF THE STATE, THOUGH SELLING
INTRASTATE EXCLUSIVELY, IS NOT TO BE IMPLIED FROM THE EXCEPTION FROM
THE ACT, BY SECS. 13(A)(1) AND 13(A)(2), OF EMPLOYEES OF RETAILERS.  P.
571. 

6.  THE APPLICABILITY OF THE FAIR LABOR STANDARDS ACT DOES NOT DEPEND
ON WHETHER A WHOLESALER'S BUSINESS IS WHOLLY INTERSTATE, BUT RATHER ON
THE CHARACTER OF THE EMPLOYEE'S ACTIVITIES.  P. 571. 

WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U.S. DEPT. OF
LABOR, V. JACKSONVILLE PAPER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 615, TO REVIEW THE REVERSAL OF A JUDGMENT IN A
SUIT BROUGHT BY THE WAGE AND HOUR ADMINISTRATOR TO ENJOIN VIOLATIONS OF
THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT BY THE ADMINISTRATOR TO ENJOIN RESPONDENT FROM
VIOLATING PROVISIONS OF THE FAIR LABOR STANDARDS ACT.  52 STAT. 1060,
29 U.S.C. SEC. 201.  RESPONDENT IS ENGAGED IN THE WHOLESALE BUSINESS,
DISTRIBUTING PAPER PRODUCTS AND RELATED ARTICLES.  ITS BUSINESS COVERS
A LARGE AREA EMBRACED WITHIN A NUMBER OF STATES IN THE SOUTHEASTERN
PART OF THE COUNTRY.  THE MAJOR PORTION OF THE PRODUCTS WHICH IT
DISTRIBUTES COMES FROM A LARGE NUMBER OF MANUFACTURERS AND OTHER
SUPPLIERS LOCATED IN OTHER STATES AND IN FOREIGN COUNTRIES.  FIVE OF
RESPONDENT'S TWELVE BRANCH HOUSES DELIVER GOODS TO CUSTOMERS IN OTHER
STATES AND IT IS NOT CONTENDED THAT THE ACT DOES NOT APPLY TO DELIVERY
EMPLOYEES AT THOSE ESTABLISHMENTS.  THE SOLE ISSUE HERE IS WHETHER THE
ACT APPLIES TO EMPLOYEES AT THE SEVEN OTHER BRANCH HOUSES WHICH, THOUGH
CONSTANTLY RECEIVING MERCHANDISE ON INTERSTATE SHIPMENTS AND
DISTRIBUTING IT TO THEIR CUSTOMERS, DO NOT SHIP OR DELIVER ANY OF IT
ACROSS STATE LINES. 

SOME OF THIS MERCHANDISE IS SHIPPED DIRECT FROM THE MILLS TO
RESPONDENT'S CUSTOMERS.  SOME OF IT IS PURCHASED ON SPECIAL ORDERS FROM
CUSTOMERS, CONSIGNED TO THE BRANCHES, TAKEN FROM THE STEAMSHIP OR
RAILROAD TERMINAL TO THE BRANCHES FOR CHECKING, AND THEN TAKEN TO THE
CUSTOMER'S PLACE OF BUSINESS.  THE BULK OF THE MERCHANDISE, HOWEVER,
PASSES THROUGH THE BRANCH WAREHOUSES BEFORE DELIVERY TO CUSTOMERS. 
THERE IS EVIDENCE THAT THE CUSTOMERS CONSTITUTE A FAIRLY STABLE GROUP
AND THAT THEIR ORDERS ARE RECURRENT AS TO THE KIND AND AMOUNT OF
MERCHANDISE.  SOME OF THE ITEMS CARRIED IN STOCK ARE ORDERED ONLY IN
ANTICIPATION OF THE NEEDS OF A PARTICULAR CUSTOMER AS DETERMINED BY A
CONTRACT OR UNDERSTANDING WITH RESPONDENT.  FREQUENTLY ORDERS FOR STOCK
ITEMS WHOSE SUPPLY IS EXHAUSTED ARE RECEIVED.  RESPONDENT ORDERS THE
MERCHANDISE AND DELIVERS IT TO THE CUSTOMER AS SOON AS POSSIBLE. 
APPARENTLY MANY OF THESE ORDERS ARE TREATED AS DELIVERIES FROM STOCK IN
TRADE.  NOT ALL ITEMS LISTED IN RESPONDENT'S CATALOGUE ARE CARRIED IN
STOCK BUT ARE STOCKED AT THE MILL.  ORDERS FOR THESE ARE FILLED BY
RESPONDENT FROM THE MANUFACTURER OR SUPPLIER.  THERE IS ALSO SOME
EVIDENCE TO THE GENERAL EFFECT THAT THE BRANCH MANAGER BEFORE PLACING
HIS ORDERS FOR STOCK ITEMS HAS A FAIR IDEA WHEN AND TO WHOM THE
MERCHANDISE WILL BE SOLD AND IS ABLE TO ESTIMATE WITH CONSIDERABLE
PRECISION THE IMMEDIATE NEEDS OF HIS CUSTOMERS EVEN WHERE THEY DO NOT
HAVE CONTRACTS CALLING FOR FUTURE DELIVERIES. 

THE DISTRICT COURT HELD THAT NONE OF RESPONDENT'S EMPLOYEES IN THE
SEVEN BRANCH HOUSES IN QUESTION WERE SUBJECT TO THE ACT.  THE CIRCUIT
COURT OF APPEALS REVERSED.  128 F.2D 395.  (1) IT HELD THAT EMPLOYEES
WHO ARE ENGAGED IN THE PROCUREMENT OR RECEIPT OF GOODS FROM OTHER
STATES ARE "ENGAGED IN COMMERCE" WITHIN THE MEANING OF SEC. 6(A) AND
SEC. 7(A) OF THE ACT.  (2) IT ALSO HELD THAT WHERE RESPONDENT "TAKES AN
ORDER" FROM A CUSTOMER AND FILLS IT OUTSIDE THE STATE AND THE GOODS ARE
SHIPPED INTERSTATE "WITH THE DEFINITE INTENTION THAT THOSE GOODS BE
CARRIED AT ONCE TO THAT CUSTOMER AND THEY ARE SO CARRIED, THE WHOLE
MOVEMENT IS INTERSTATE" AND THE ENTIRE WORK OF DELIVERY TO THEIR FINAL
DESTINATION IS AN EMPLOYMENT "IN COMMERCE."  THOSE WERE THE ONLY TYPES
OF TRANSACTIONS WHICH THE COURT HELD TO BE COVERED BY THE ACT. 

THE ADMINISTRATOR CONTENDS, IN THE FIRST PLACE, THAT UNDER THE
DECISION BELOW ANY PAUSE AT THE WAREHOUSE IS SUFFICIENT TO DEPRIVE THE
REMAINDER OF THE JOURNEY OF ITS INTERSTATE STATUS.  IN THAT CONNECTION
IT IS POINTED OUT THAT PRIOR TO THIS LITIGATION RESPONDENT'S TRUCKS
WOULD PICK UP AT THE TERMINALS OF THE INTERSTATE CARRIERS GOODS
DESTINED TO SPECIFIC CUSTOMERS, RETURN TO THE WAREHOUSE FOR CHECKING
AND PROCEED IMMEDIATELY TO THE CUSTOMER'S PLACE OF BUSINESS WITHOUT
UNLOADING.  THAT PRACTICE WAS CHANGED.  THE GOODS WERE UNLOADED FROM
THE TRUCKS, BROUGHT INTO THE WAREHOUSE, CHECKED, RELOADED, AND SENT ON
TO THE CUSTOMER DURING THE SAME DAY OR AS EARLY AS CONVENIENT.  THE
OPINION OF THE CIRCUIT COURT OF APPEALS IS SUSCEPTIBLE OF THE
INTERPRETATION THAT SUCH A PAUSE AT THE WAREHOUSES IS SUFFICIENT TO
MAKE THE ACT INAPPLICABLE TO THE SUBSEQUENT MOVEMENT OF THE GOODS TO
THEIR INTENDED DESTINATION.  WE BELIEVE, HOWEVER, THAT THE ADOPTION OF
THAT VIEW WOULD RESULT IN TOO NARROW A CONSTRUCTION OF THE ACT.  IT IS
CLEAR THAT THE PURPOSE OF THE ACT WAS TO EXTEND FEDERAL CONTROL IN THIS
FIELD THROUGHOUT THE FARTHEST REACHES OF THE CHANNELS OF INTERSTATE
COMMERCE.  FN1  THERE IS NO INDICATION (APART FROM THE EXEMPTIONS
CONTAINED IN SEC. 13) THAT, ONCE THE GOODS ENTERED THE CHANNELS OF
INTERSTATE COMMERCE, CONGRESS STOPPED SHORT OF CONTROL OVER THE ENTIRE
MOVEMENT OF THEM UNTIL THEIR INTERSTATE JOURNEY WAS ENDED.  NO RITUAL
OF PLACING GOODS IN A WAREHOUSE CAN BE ALLOWED TO DEFEAT THAT PURPOSE. 
THE ENTRY OF THE GOODS INTO THE WAREHOUSE INTERRUPTS BUT DOES NOT
NECESSARILY TERMINATE THEIR INTERSTATE JOURNEY.  A TEMPORARY PAUSE IN
THEIR TRANSIT DOES NOT MEAN THAT THEY ARE NO LONGER "IN COMMERCE"
WITHIN THE MEANING OF THE ACT.  AS IN THE CASE OF AN AGENCY (CF. DE
LOACH V. CROWLEY'S INC., 128 F.2D 378) IF THE HALT IN THE MOVEMENT OF
THE GOODS IS A CONVENIENT INTERMEDIATE STEP IN THE PROCESS OF GETTING
THEM TO THEIR FINAL DESTINATIONS, THEY REMAIN "IN COMMERCE" UNTIL THEY
REACH THOSE POINTS.  THEN THERE IS A PRACTICAL CONTINUITY OF MOVEMENT
OF THE GOODS UNTIL THEY REACH THE CUSTOMERS FOR WHOM THEY ARE
INTENDED.  THAT IS SUFFICIENT.  ANY OTHER TEST WOULD ALLOW FORMALITIES
TO CONCEAL THE CONTINUOUS NATURE OF THE INTERSTATE TRANSIT WHICH
CONSTITUTES COMMERCE. 

SECONDLY, THE ADMINISTRATOR CONTENDS THAT THE DECISION BELOW EXCLUDES
FROM THE CATEGORY OF GOODS "IN COMMERCE" CERTAIN TYPES OF TRANSACTIONS
WHICH ARE SUBSTANTIALLY OF THE SAME CHARACTER AS THE PRIOR ORDERS WHICH
WERE INCLUDED.  THUS IT IS SHOWN THAT THERE IS A VARIETY OF ITEMS
PRINTED AT THE MILL WITH THE NAME OF THE CUSTOMER.  IT IS ALSO
ESTABLISHED THAT THERE ARE DELIVERIES OF CERTAIN GOODS WHICH ARE
OBTAINED FROM THE MANUFACTURER OR SUPPLIER TO MEET THE NEEDS OF
SPECIFIED CUSTOMERS.  AMONG THE LATTER ARE CERTAIN TYPES OF NEWSPRINT,
PAPER, ICE CREAM CUPS, AND COTTAGE CHEESE CONTAINERS.  THE RECORD
REVEALS, HOWEVER, THAT THE GOODS IN BOTH OF THESE TWO CATEGORIES ARE
ORDERED PURSUANT TO A PREEXISTING CONTRACT OR UNDERSTANDING WITH THE
CUSTOMER.  IT IS NOT CLEAR WHETHER THE DECISION OF THE CIRCUIT COURT OF
APPEALS INCLUDES THESE TWO TYPES OF TRANSACTIONS IN THE GROUP OF PRIOR
ORDERS WHICH IT HELD WERE COVERED BY THE ACT.  WE THINK THEY MUST BE
INCLUDED.  CERTAINLY THEY CANNOT BE DISTINGUISHED FROM THE SPECIAL
ORDERS WHICH RESPONDENT RECEIVES FROM ITS CUSTOMERS.  HERE ALSO, A
BREAK IN THEIR PHYSICAL CONTINUITY OF TRANSIT IS NOT CONTROLLING.  IF
THERE IS A PRACTICAL CONTINUITY OF MOVEMENT FROM THE MANUFACTURERS OR
SUPPLIERS WITHOUT THE STATE, THROUGH RESPONDENT'S WAREHOUSE AND ON TO
CUSTOMERS WHOSE PRIOR ORDERS OR CONTRACTS ARE BEING FILLED, THE
INTERSTATE JOURNEY IS NOT ENDED BY REASON OF A TEMPORARY HOLDING OF THE
GOODS AT THE WAREHOUSE.  THE FACT THAT RESPONDENT MAY TREAT THE GOODS
AS STOCK IN TRADE OR THE CIRCUMSTANCE THAT TITLE TO THE GOODS PASSES TO
RESPONDENT ON THE INTERMEDIATE DELIVERY DOES NOT MEAN THAT THE
INTERSTATE JOURNEY ENDS AT THE WAREHOUSE.  THE CONTRACT OR
UNDERSTANDING PURSUANT TO WHICH GOODS ARE ORDERED, LIKE A SPECIAL
ORDER, INDICATES WHERE IT WAS INTENDED THAT THE INTERSTATE MOVEMENT
SHOULD TERMINATE.  NUMEROUS AUTHORITIES ARE PRESSED ON US FOR THE
CONTRARY VIEW AND FOR THE CONCLUSION THAT WHEN THE GOODS ENTER THE
WAREHOUSE, THEY ARE NO LONGER "IN COMMERCE."  BUT AS WE STATED IN
KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, 520-521, DECISIONS DEALING
WITH VARIOUS ASSERTIONS OF STATE OR FEDERAL POWER IN THE COMMERCE FIELD
ARE NOT PARTICULARLY HELPFUL IN DETERMINING THE REACH OF THIS ACT. 

FINALLY, THE ADMINISTRATOR CONTENDS THAT MOST OF THE CUSTOMERS FORM A
FAIRLY STABLE GROUP, THAT THEIR ORDERS ARE RECURRENT AS TO THE KIND AND
AMOUNT OF MERCHANDISE, AND THAT THE MANAGER CAN ESTIMATE WITH
CONSIDERABLE PRECISION THE NEEDS OF HIS TRADE.  IT IS THEREFORE URGED
THAT THE BUSINESS WITH THESE CUSTOMERS IS "IN COMMERCE" WITHIN THE
MEANING OF THE ACT.  SOME OF THE INSTANCES TO WHICH WE ARE REFERRED ARE
SITUATIONS WHICH WE HAVE DISCUSSED IN CONNECTION WITH GOODS DELIVERED
PURSUANT TO A PRIOR ORDER, CONTRACT, OR UNDERSTANDING.  FOR THE REASONS
STATED THEY MUST BE INCLUDED IN THE GROUP OF TRANSACTIONS HELD TO BE
"IN COMMERCE."  AS TO THE BALANCE, WE DO NOT THINK THE ADMINISTRATOR
HAS SUSTAINED THE BURDEN WHICH IS ON A PETITIONER OF ESTABLISHING ERROR
IN A JUDGMENT WHICH WE ARE ASKED TO SET ASIDE.  WE DO NOT MEAN TO IMPLY
THAT A WHOLESALER'S COURSE OF BUSINESS BASED ON ANTICIPATION OF NEEDS
OF SPECIFIC CUSTOMERS, RATHER THAN ON PRIOR ORDERS OR CONTRACTS, MIGHT
NOT AT TIMES BE SUFFICIENT TO ESTABLISH THAT PRACTICAL CONTINUITY IN
TRANSIT NECESSARY TO KEEP A MOVEMENT OF GOODS "IN COMMERCE" WITHIN THE
MEANING OF THE ACT.  IT WAS SAID IN SWIFT & CO. V. UNITED STATES, 196
U.S. 375, 398, THAT "COMMERCE AMONG THE STATES IS NOT A TECHNICAL LEGAL
CONCEPTION, BUT A PRACTICAL ONE, DRAWN FROM THE COURSE OF BUSINESS." 
WHILE THAT OBSERVATION WAS MADE APROPOS OF THE CONSTITUTIONAL SCOPE OF
THE COMMERCE POWER, IT IS EQUALLY APT AS A STARTING POINT FOR INQUIRY
WHETHER A PARTICULAR BUSINESS IS "IN COMMERCE" WITHIN THE MEANING OF
THIS ACT.  WE DO NOT BELIEVE, HOWEVER, THAT ON THIS PHASE OF THE CASE
SUCH A COURSE OF BUSINESS IS REVEALED BY THIS RECORD.  THE EVIDENCE
SAID TO SUPPORT IT IS OF A WHOLLY GENERAL CHARACTER AND LACKS THAT
PARTICULARITY NECESSARY TO SHOW THAT THE GOODS IN QUESTION WERE
DIFFERENT FROM GOODS ACQUIRED AND HELD BY A LOCAL MERCHANT FOR LOCAL
DISPOSITION. 

IN THIS CONNECTION WE CANNOT BE UNMINDFUL THAT CONGRESS IN ENACTING
THIS STATUTE PLAINLY INDICATED ITS PURPOSE TO LEAVE LOCAL BUSINESS TO
THE PROTECTION OF THE STATES.  S. REP. NO. 884, 75TH CONG., 1ST SESS.,
P. 5; 83 CONG. REC., 75TH CONG., 3D SESS., PT. 8, P. 9169.  MOREOVER AS
WE STATED IN KIRSCHBAUM CO. V. WALLING, SUPRA, P. 522-523, CONGRESS DID
NOT EXERCISE IN THIS ACT THE FULL SCOPE OF THE COMMERCE POWER.  WE MAY
ASSUME THE VALIDITY OF THE ARGUMENT THAT SINCE WHOLESALERS DOING A
LOCAL BUSINESS ARE IN COMPETITION WITH WHOLESALERS DOING AN INTERSTATE
BUSINESS, THE LATTER WOULD BE PREJUDICED IF THEIR COMPETITORS WERE NOT
REQUIRED TO COMPLY WITH THE SAME LABOR STANDARDS.  THAT CONSIDERATION,
HOWEVER, WOULD BE PERTINENT ONLY IF THE ACT EXTENDED TO BUSINESSES OR
TRANSACTIONS "AFFECTING COMMERCE."  BUT AS WE NOTED IN THE KIRSCHBAUM
CASE THE ACT DID NOT GO SO FAR.  IT IS URGED, HOWEVER, THAT A DIFFERENT
RESULT OBTAINS IN CASE OF WHOLESALERS.  THE ARGUMENT IS BASED ON THE
FACT THAT THE ACT EXCEPTS FROM SEC. 6 AND SEC. 7 "ANY EMPLOYEE EMPLOYED
IN A  ...  LOCAL RETAILING CAPACITY" (SEC. 13(A)(1)) AND "ANY EMPLOYEE
ENGAGED IN ANY RETAIL OR SERVICE ESTABLISHMENT THE GREATER PART OF
WHOSE SELLING OR SERVICING IS IN INTRASTATE COMMERCE."  SEC. 13(A) 

(2).  SINCE RETAILERS ARE EXCLUDED BY REASON OF THESE EXPRESS
PROVISIONS, IT IS THOUGHT THAT THE INCLUSION OF WHOLESALERS SHOULD BE
IMPLIED.  THERE IS, HOWEVER, NO INDICATION IN THE LEGISLATIVE HISTORY
THAT BUT FOR THE EXEMPTION OF RETAILERS IT WAS THOUGHT THAT ALL
MOVEMENT OF GOODS FROM MANUFACTURERS TO WHOLESALERS AND ON TO RETAILERS
WOULD BE "IN COMMERCE" WITHIN THE MEANING OF THE ACT, WHERE THE
WHOLESALERS AND RETAILERS WERE IN THE SAME STATE.  IT IS QUITE CLEAR
THAT THE EXEMPTION IN SEC. 13(A)(2) WAS ADDED TO ELIMINATE THOSE
RETAILERS LOCATED NEAR THE STATE LINES AND MAKING SOME INTERSTATE
SALES.  83 CONG. REC., 75TH CONG., 3D SESS., PT. 7, PP. 7281-7282, 7436
7438.  FN2  AND THE EXEMPTION FOR RETAILERS CONTAINED IN SEC. 13(A)(1)
WAS TO ALLAY THE FEARS OF THOSE WHO FELT THAT A RETAILER PURCHASING
GOODS FROM WITHOUT THE STATE MIGHT OTHERWISE BE INCLUDED.  ID.  HENCE
WE CANNOT CONCLUDE THAT ALL PHASES OF A WHOLESALE BUSINESS SELLING
INTRASTATE ARE COVERED BY THE ACT SOLELY BECAUSE IT MAKES ITS PURCHASES
INTERSTATE.  THE USE OF THE WORDS "IN COMMERCE" ENTAILS AN ANALYSIS OF
THE VARIOUS TYPES OF TRANSACTIONS AND THE PARTICULAR COURSE OF BUSINESS
ALONG THE LINES WE HAVE INDICATED. 

THE FACT THAT ALL OF RESPONDENT'S BUSINESS IS NOT SHOWN TO HAVE AN
INTERSTATE CHARACTER IS NOT IMPORTANT.  THE APPLICABILITY OF THE ACT IS
DEPENDENT ON THE CHARACTER OF THE EMPLOYEES' WORK.  KIRSCHBAUM CO. V.
WALLING, SUPRA, P. 524.  IF A SUBSTANTIAL PART OF AN EMPLOYEE'S
ACTIVITIES RELATED TO GOODS WHOSE MOVEMENT IN THE CHANNELS OF
INTERSTATE COMMERCE WAS ESTABLISHED BY THE TEST WE HAVE DESCRIBED, HE
IS COVERED BY THE ACT.  HERE AS IN OTHER SITUATIONS (KIRSCHBAUM CO. V.
WALLING, SUPRA, P. 523) THE QUESTION OF THE ACT'S COVERAGE DEPENDS ON
THE SPECIAL FACTS PERTAINING TO THE PARTICULAR BUSINESS.  THE CIRCUIT
COURT OF APPEALS REMANDED THE CAUSE TO THE DISTRICT COURT SO THAT NEW
FINDINGS COULD BE MADE AND AN APPROPRIATE DECREE BE FRAMED.  WHETHER
ADDITIONAL EVIDENCE MUST BE TAKEN ON ANY PHASE OF THE CASE SO THAT A
DECREE MAY BE DRAWN IS A QUESTION FOR THE DISTRICT COURT.  WE MERELY
HOLD THAT THE DECISION OF THE CIRCUIT COURT OF APPEALS AS CONSTRUED AND
MODIFIED BY THIS OPINION STATES THE CORRECT VIEW OF THE LAW.  AS SO
MODIFIED, THE JUDGMENT BELOW IS AFFIRMED.    FN1  SEE FOR EXAMPLE THE
STATEMENT BY SENATOR BORAH SPEAKING FOR THE SENATE CONFEREES ON THE
CONFERENCE REPORT, "  ...  IF THE BUSINESS IS SUCH AS TO OCCUPY THE
CHANNELS OF INTERSTATE COMMERCE, ANY OF THE EMPLOYEES WHO ARE A
NECESSARY PART OF CARRYING ON THAT BUSINESS ARE WITHIN THE TERMS OF
THIS BILL, AND, IN MY OPINION, ARE UNDER THE CONSTITUTION OF THE UNITED
STATES."  83 CONG. REC., 75TH CONG., 3D SESS., PT. 8, P. 9170. 

FN2  AND SEE JOINT HEARINGS, SENATE COMMITTEE ON EDUCATION AND LABOR,
HOUSE COMMITTEE ON LABOR, 75TH CONG., 1ST SESS., ON S. 2475 AND H.R.
7200, PT. 1, P. 35. 
..END :
























HIGGINS V. CARR BROS. CO., 317 U.S. 572 


NO. 97.  ARGUED NOVEMBER 19, 1942.  - DECIDED JANUARY 18, 1943.  - 25
A.2D 214, AFFIRMED. 


1.  THE RECORD IN THIS CASE DOES NOT WARRANT SETTING ASIDE THE
CONCLUSION OF THE COURT BELOW THAT, WHEN MERCHANDISE COMING FROM OTHER
STATES WAS UNLOADED AT THE PLACE OF BUSINESS OF THE WHOLESALER HERE
(SELLING INTRASTATE EXCLUSIVELY), ITS INTERSTATE MOVEMENT HAD ENDED,
AND THAT AN EMPLOYEE WHOSE ACTIVITIES RELATED TO THE GOODS THEREAFTER
WAS NOT COVERED BY THE FAIR LABOR STANDARDS ACT.  WALLING V.
JACKSONVILLE PAPER CO., ANTE, P. 564, DISTINGUISHED.  P. 574. 

2.  THAT A WHOLESALER WHOSE BUSINESS IS EXCLUSIVELY INTRASTATE IS IN
COMPETITION WITH WHOLESALERS DOING INTERSTATE BUSINESS IS OF NO
SIGNIFICANCE IN DETERMINING THE APPLICABILITY OF THE FAIR LABOR
STANDARDS ACT, SINCE THAT ACT DOES NOT EXTEND TO ACTIVITIES "AFFECTING"
COMMERCE, BUT ONLY TO SUCH AS ARE "IN" COMMERCE.  P. 574. 

HIGGINS V. CARR BROTHERS CO. 

CERTIORARI TO THE SUPREME JUDICIAL COURT OF MAINE 

CERTIORARI, 316 U.S. 658, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DENYING RECOVERY OF ALLEGED UNPAID WAGES AND FOR DAMAGES, IN A SUIT
BROUGHT BY AN EMPLOYEE AGAINST HIS EMPLOYER, UNDER THE FAIR LABOR
STANDARDS ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO WALLING V. JACKSONVILLE PAPER CO., ANTE,
P. 564, AND IS HERE ON CERTIORARI TO THE SUPREME JUDICIAL COURT OF
MAINE.  HIGGINS CLAIMS MINIMUM WAGES AND OVERTIME COMPENSATION ALLEGED
TO BE DUE HIM UNDER SECS. 6(A) AND 7(A) OF THE FAIR LABOR STANDARDS ACT
BETWEEN JANUARY 1939 AND JULY 1940.  PRIOR TO THAT TIME, RESPONDENT,
WHICH CONDUCTS A WHOLESALE FRUIT, GROCERY AND PRODUCE BUSINESS IN
PORTLAND, MAINE, HAD BEEN SELLING AND DELIVERING ITS MERCHANDISE NOT
ONLY TO THE LOCAL TRADE IN MAINE BUT ALSO TO RETAILERS IN NEW
HAMPSHIRE.  FOR THE PERIOD HERE IN QUESTION THE NEW HAMPSHIRE TRADE HAD
BEEN DISCONTINUED AND ALL SALES AND DELIVERIES WERE SOLELY TO RETAILERS
IN MAINE.  THE ONLY ADDITIONAL FACTS WHICH WE KNOW ABOUT RESPONDENT'S
COURSE OF BUSINESS ARE ACCURATELY SUMMARIZED IN THE FOLLOWING EXCERPT
FROM THE OPINION OF THE SUPREME JUDICIAL COURT:  "IT BUYS ITS
MERCHANDISE FROM LOCAL PRODUCERS AND FROM DEALERS IN OTHER STATES, HAS
IT DELIVERED BY TRUCK AND RAIL, UNLOADED INTO ITS STORE AND WAREHOUSE
AND FROM THERE SELLS AND DISTRIBUTES IT TO THE RETAIL TRADE.  WHILE
SOME OF THE PRODUCE AND FRUIT IS PROCESSED, MUCH OF IT IS SOLD IN THE
CONDITION IN WHICH IT IS RECEIVED.  THE CORPORATION OWNS ALL OF ITS
MERCHANDISE AND MAKES ITS OWN DELIVERIES.  IT MAKES NO SALES ON
COMMISSION NOR ON ORDER WITH SHIPMENTS DIRECT FROM THE DEALER OR
PRODUCER TO THE RETAIL PURCHASER."  HIGGINS' EMPLOYMENT INVOLVED WORK
AS NIGHT SHIPPER PUTTING UP ORDERS AND LOADING TRUCKS FOR DELIVERY TO
RETAIL DEALERS IN MAINE OR DRIVING A TRUCK DISTRIBUTING MERCHANDISE TO
THE LOCAL TRADE. 

PETITIONER IN HIS BRIEF DESCRIBES THE BUSINESS IN SOMEWHAT GREATER
DETAIL AND SEEKS TO SHOW AN ACTUAL OR PRACTICAL CONTINUITY OF MOVEMENT
OF MERCHANDISE FROM WITHOUT THE STATE TO RESPONDENT'S REGULAR CUSTOMERS
WITHIN THE STATE.  BUT HERE, UNLIKE WALLING V. JACKSONVILLE PAPER CO.,
THERE IS NOTHING IN THE RECORD BEFORE US TO SUPPORT THOSE STATEMENTS
NOR TO IMPEACH THE ACCURACY OF THE CONCLUSION OF THE SUPREME JUDICIAL
COURT OF MAINE THAT WHEN THE MERCHANDISE COMING FROM WITHOUT THE STATE
WAS UNLOADED AT RESPONDENT'S PLACE OF BUSINESS ITS "INTERSTATE MOVEMENT
HAD ENDED."  SOME EFFORT IS MADE TO SHOW THAT THE COURT BELOW APPLIED
AN INCORRECT RULE OF LAW IN THE SENSE THAT IT GAVE THE ACT TOO NARROW A
CONSTRUCTION.  IN THAT CONNECTION IT IS ARGUED THAT RESPONDENT IS IN
COMPETITION WITH WHOLESALERS DOING AN INTERSTATE BUSINESS AND THAT IT
CAN BY UNDERSELLING AFFECT THOSE BUSINESSES AND THEIR INTERSTATE
ACTIVITIES.  AS WE INDICATED IN WALLING V. JACKSONVILLE PAPER CO., THAT
ARGUMENT WOULD BE RELEVANT IF THIS ACT HAD FOLLOWED THE PATTERN OF
OTHER FEDERAL LEGISLATION SUCH AS THE NATIONAL LABOR RELATIONS ACT (SEE
29 U.S.C. SEC. 152(7), SEC. 160(A)) AND EXTENDED FEDERAL CONTROL TO
BUSINESS "AFFECTING COMMERCE."  BUT AS WE POINTED OUT IN KIRSCHBAUM CO.
V. WALLING, 316 U.S. 517, THIS ACT DID NOT GO SO FAR BUT WAS MORE
NARROWLY CONFINED. 

THUS PETITIONER HAS NOT MAINTAINED THE BURDEN OF SHOWING ERROR IN THE
JUDGMENT WHICH HE ASKS US TO SET ASIDE.  AFFIRMED. 
..END :

















BRADY V. ROOSEVELT S.S. CO., 317 U.S. 575 


NO. 269.  ARGUED DECEMBER 18, 1942.  - DECIDED JANUARY 18, 1943.  - 128
F.2D 169, REVERSED. 


1.  AN ACTION TO RECOVER FOR A DEATH RESULTING FROM INJURIES SUSTAINED
WHEN A RUNG OF A LADDER BROKE AS THE DECEDENT, A UNITED STATES CUSTOMS
INSPECTOR IN THE COURSE OF HIS OFFICIAL DUTIES, WAS CLIMBING TO BOARD A
VESSEL DOCKED AT A PIER, IS WITHIN THE ADMIRALTY JURISDICTION.  PP. 576
577. 

2.  THE SUITS IN ADMIRALTY ACT DOES NOT PRECLUDE A SUIT AGAINST A
PRIVATE CORPORATION (NONE OF WHOSE STOCK IS OWNED DIRECTLY OR
INDIRECTLY BY THE UNITED STATES) TO RECOVER DAMAGES FOR A MARITIME TORT
ARISING OUT OF THE NEGLIGENT OPERATION OF A VESSEL OWNED BY THE UNITED
STATES MARITIME COMMISSION, AND WHICH THE CORPORATION OPERATES UNDER A
CONTRACT MADE PURSUANT TO SEC. 707(C) OF THE MERCHANT MARINE ACT OF
1936, EVEN THOUGH THE CONTRACT MAY GIVE TO THE CORPORATION IN SUCH CASE
A RIGHT OF EXONERATION OR INDEMNITY AGAINST THE COMMISSION.  FLEET
CORPORATION V. LUSTGARTEN, 280 U.S. 320, OVERRULED PRO TANTO.  PP. 578,
582. 

THE SUITS IN ADMIRALTY ACT DOES NOT RESTRICT THE REMEDY IN SUCH CASE
TO A LIBEL IN PERSONAM AGAINST THE UNITED STATES OR THE MARITIME
COMMISSION. 

BRADY, ADMINISTRATRIX, V. ROOSEVELT STEAMSHIP CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 609, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PLAINTIFF IN A SUIT AGAINST THE STEAMSHIP COMPANY TO RECOVER
DAMAGES FOR THE DEATH OF PLAINTIFF'S INTESTATE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

S.S. UNICOI WAS A VESSEL OWNED BY THE UNITED STATES MARITIME
COMMISSION AND OPERATED FOR IT BY RESPONDENT UNDER A CONTRACT COVERING
THIS AND OTHER VESSELS.  THE CONTRACT  FN1  RECITES THAT IT WAS MADE
PURSUANT TO SEC. 707(C) OF THE MERCHANT MARINE ACT OF 1936(49 STAT.
2009, 46 U.S.C. SEC. 1197(C); SEE SEC. 704, 46 U.S.C. SEC. 1194), THE
COMMISSION HAVING ADVERTISED THE LINE FOR CHARTER AND HAVING FAILED TO
RECEIVE SATISFACTORY BIDS.  RESPONDENT IS A PRIVATE CORPORATION, NONE
OF WHOSE STOCK IS OWNED DIRECTLY OR INDIRECTLY BY THE UNITED STATES. 

THE DECEASED WAS A UNITED STATES CUSTOMS INSPECTOR.  WHILE BOARDING
THE VESSEL ON HIS OFFICIAL DUTIES IN JULY 1938, A RUNG OF THE LADDER
WHICH HE WAS CLIMBING BROKE.  THE INJURIES WHICH RESULTED CAUSED HIS
DEATH.  AT THE TIME OF THE INJURY THE VESSEL WAS DOCKED AT A PIER IN
NEW YORK CITY. 

PETITIONER, THE WIDOW, SUED AS ADMINISTRATRIX TO RECOVER DAMAGES FOR
THE BENEFIT OF HERSELF AND THE CHILDREN.  THAT SUIT WAS BROUGHT IN THE
NEW YORK SUPREME COURT BUT REMOVED TO THE FEDERAL DISTRICT COURT. 
RESPONDENT MOVED TO DISMISS ON THE AUTHORITY OF JOHNSON V. EMERGENCY
FLEET CORP., 280 U.S. 320.  THAT MOTION WAS DENIED AND A TRIAL TO A
JURY ON THE LAW SIDE OF THE COURT WAS HAD.  A VERDICT FOR PETITIONER
WAS RETURNED.  ON APPEAL THE JUDGMENT WAS REVERSED WITH DIRECTIONS TO
DISMISS THE COMPLAINT, ONE JUDGE DISSENTING.  THE CIRCUIT COURT OF
APPEALS STATED IN REACHING THAT RESULT THAT THE SUITS IN ADMIRALTY ACT
(41 STAT. 525, 46 U.S.C. SECS. 741, 742) AS CONSTRUED BY THE DECISION
IN THE JOHNSON CASE MADE THE REMEDIES AFFORDED BY THAT ACT THE
EXCLUSIVE ONES, VIZ. A LIBEL IN PERSONAM AGAINST THE UNITED STATES OR
THE MARITIME COMMISSION.  128 F.2D 169.  WE GRANTED THE PETITION FOR A
WRIT OF CERTIORARI BECAUSE OF THE PUBLIC IMPORTANCE OF THE PROBLEM. 

WE AGREE WITH THE COURT BELOW THAT THIS WAS A MARITIME TORT OVER
WHICH THE ADMIRALTY COURT HAS JURISDICTION.  VANCOUVER S.S. CO. V.
RICE, 288 U.S. 445; THE ADMIRAL PEOPLES, 295 U.S. 649.  AND WE MAY
ASSUME THAT PETITIONER COULD HAVE SUED EITHER THE UNITED STATES OR THE
COMMISSION UNDER THE SUITS IN ADMIRALTY ACT.  IN ANY EVENT, SUCH A SUIT
WOULD BE THE EXCLUSIVE REMEDY IN ADMIRALTY AGAINST EITHER OF THEM. 
EASTERN TRANSPORTATION CO. V. UNITED STATES, 272 U.S. 675; EMERGENCY
FLEET CORP. V. ROSENBERG BROS. & CO., 276 U.S. 202.  AND IT IS LIKEWISE
CLEAR THAT THE ACTION IN ADMIRALTY AFFORDED BY SEC. 2 OF THE SUITS IN
ADMIRALTY ACT IS THE ONLY AVAILABLE REMEDY AGAINST THE UNITED STATES OR
A CORPORATION WHOSE ENTIRE OUTSTANDING CAPITAL STOCK IS OWNED BY THE
UNITED STATES OR ITS REPRESENTATIVES.  JOHNSON V. EMERGENCY FLEET
CORP., SUPRA.  THE SOLE QUESTION HERE IS WHETHER THE SUITS IN ADMIRALTY
ACT MAKES PRIVATE OPERATORS SUCH AS RESPONDENT NON-SUABLE FOR THEIR
TORTS. 

EMERGENCY FLEET CORP. V. LUSTGARTEN, 280 U.S. 320, ONE OF THE THREE
COMPANION CASES TO THE JOHNSON CASE, SUPPORTS THE VIEW THAT IT DOES. 
IN THAT CASE A MERCHANT VESSEL, COELLEDA, WAS OWNED BY THE UNITED
STATES AND OPERATED FOR IT BY THE CONSOLIDATED NAVIGATION CO. PURSUANT
TO A CONTRACT MADE THROUGH THE FLEET CORPORATION.  A SEAMAN EMPLOYED
THEREON SUED THE FLEET CORPORATION AND THE CONSOLIDATED NAVIGATION CO.
TO RECOVER DAMAGES FOR PERSONAL INJURIES SUSTAINED IN THAT SERVICE. 
THERE WAS A JUDGMENT FOR THE PLAINTIFF WHICH WAS AFFIRMED ON APPEAL. 
THIS COURT REVERSED AND REMANDED THE CAUSE WITH DIRECTIONS TO DISMISS. 
THE JOHNSON CASE AND THE OTHER TWO COMPANION CASES WERE SUITS AGAINST
THE FLEET CORPORATION OR THE UNITED STATES.  IN ONE OPINION DEALING
WITH ALL FOUR CASES, THIS COURT SAID:  "DIRECTLY OR MEDIATELY, THE
MONEY REQUIRED TO PAY A JUDGMENT AGAINST ANY OF THE DEFENDANTS IN THESE
CASES WOULD COME OUT OF THE UNITED STATES.  IT IS THE REAL PARTY
AFFECTED IN ALL OF THESE ACTIONS."  280 U.S. PP. 326-327.  IT ADDED
THAT THE AIM OF UNIFORMITY WOULD NOT BE ESTABLISHED "IF SUITS UNDER THE
TUCKER ACT AND IN THE COURT OF CLAIMS BE ALLOWED AGAINST THE UNITED
STATES AND ACTIONS AT LAW IN STATE AND FEDERAL COURTS BE PERMITTED
AGAINST THE FLEET CORPORATION OR OTHER AGENTS FOR ENFORCEMENT OF THE
MARITIME CAUSES OF ACTION COVERED BY THE ACT."  P. 327.  ACCORDINGLY IT
CONCLUDED THAT "THE REMEDIES GIVEN BY THE ACT ARE EXCLUSIVE IN ALL
CASES WHERE A LIBEL MIGHT BE FILED UNDER IT."  P. 327.  THESE
STATEMENTS, COUPLED WITH THE FACT THAT THE JUDGMENT IN THE LUSTGARTEN
CASE WAS REVERSED NOT ONLY AS RESPECTS THE FLEET CORPORATION BUT THE
CONSOLIDATED NAVIGATION CO. AS WELL, SUPPORT THE VIEW ADOPTED BY THE
COURT BELOW. 

OUR CONCLUSION, HOWEVER, IS THAT THAT POSITION IS UNTENABLE AND THAT
THE LUSTGARTEN CASE SO FAR AS IT WOULD PREVENT A PRIVATE OPERATOR FROM
BEING SUED UNDER THE CIRCUMSTANCES OF THIS CASE MUST BE CONSIDERED AS
NO LONGER CONTROLLING. 

THERE IS AMPLE SUPPORT FOR THE HOLDING IN THE JOHNSON CASE THAT SEC.
2 OF THE SUITS IN ADMIRALTY ACT WAS INTENDED TO PROVIDE THE ONLY
AVAILABLE REMEDY AGAINST THE UNITED STATES OR ITS WHOLLY OWNED
CORPORATIONS FOR ENFORCEMENT OF MARITIME CAUSES OF ACTION COVERED BY
THE ACT.  BUT THERE IS NOT THE SLIGHTEST INTIMATION OR SUGGESTION IN
THE HISTORY OF THAT ACT THAT IT WAS DESIGNED TO ABOLISH ALL REMEDIES
WHICH MIGHT EXIST AGAINST A PRIVATE COMPANY FOR TORTS COMMITTED DURING
ITS OPERATION OF GOVERNMENT VESSELS UNDER AGENCY AGREEMENTS. 

SEC. 1 OF THE SUITS IN ADMIRALTY ACT PROVIDES THAT NO VESSEL OWNED BY
THE UNITED STATES OR A GOVERNMENTAL CORPORATION OR "OPERATED BY OR FOR
THE UNITED STATES, OR SUCH CORPORATION" SHALL BE "SUBJECT TO ARREST OR
SEIZURE BY JUDICIAL PROCESS IN THE UNITED STATES OR ITS POSSESSIONS." 
THAT SECTION WAS DESIGNED TO AVOID THE INCONVENIENCE, EXPENSE AND DELAY
RESULTING FROM THE HOLDINGS IN THE FLORENCE H., 248 F. 1012, AND THE
LAKE MONROE, 250 U.S. 246, THAT LIBEL IN REM WOULD LIE AGAINST VESSELS
OWNED BY THE UNITED STATES.  SEE S. REP. NO. 223, 66TH CONG., 1ST
SESS.; H. REP. NO. 497, 66TH CONG., 2D SESS.  THE WORDING OF THAT
TAKEN AWAY WHETHER THE VESSEL WAS OPERATED BY THE UNITED STATES OR ITS
WHOLLY OWNED CORPORATION OR FOR EITHER OF THEM BY A PRIVATE COMPANY. 
TO THAT EXTENT THE ACT AFFECTS REMEDIES WHICH WOULD OTHERWISE EXIST ON
MARITIME CAUSES OF ACTION ARISING OUT OF OPERATION OF GOVERNMENT
VESSELS BY PRIVATE COMPANIES FOR THE UNITED STATES OR ITS WHOLLY OWNED
CORPORATIONS.  YET THERE IS NO INDICATION WHATSOEVER THAT IT WENT
FURTHER AND TOOK AWAY ANY PERSONAL REMEDY WHICH A TORT CLAIMANT MIGHT
HAVE AGAINST SUCH A PRIVATE OPERATOR.  WHILE SEC. 1 ABOLISHES THE RIGHT
TO ARREST OR SEIZE THE VESSEL, SEC. 2 PROVIDES THAT "A LIBEL IN
PERSONAM MAY BE BROUGHT AGAINST THE UNITED STATES OR AGAINST SUCH
CORPORATIONS" IN CASES WHERE "IF SUCH VESSEL WERE PRIVATELY OWNED OR
OPERATED  ...  A PROCEEDING IN ADMIRALTY COULD BE MAINTAINED."  SEC. 2,
HOWEVER, DOES NOT MENTION PRIVATE OPERATORS.  NOR DO THE COMMITTEE
REPORTS ADVERT TO PRIVATE OPERATORS, EXCEPT AS THEY MAY BE AFFECTED BY
SEC. 1.  THE LIABILITY OF AN AGENT FOR HIS OWN NEGLIGENCE HAS LONG BEEN
EMBEDDED IN THE LAW.  QUINN V. SOUTHGATE NELSON CORP., 121 F.2D 190, IS
A RECENT APPLICATION OF THAT PRINCIPLE TO A SITUATION VERY CLOSE TO THE
PRESENT ONE.  BUT THE PRINCIPLE IS AN ANCIENT ONE AND APPLIES EVEN TO
CERTAIN ACTS OF PUBLIC OFFICERS OR PUBLIC INSTRUMENTALITIES.  AS STATED
IN SLOAN SHIPYARDS CORP. V. EMERGENCY FLEET CORP., 258 U.S. 549, 567,
"AN INSTRUMENTALITY OF GOVERNMENT HE MIGHT BE AND FOR THE GREATEST
ENDS, BUT THE AGENT, BECAUSE HE IS AGENT, DOES NOT CEASE TO BE
ANSWERABLE FOR HIS ACTS."  IN THAT CASE THE FLEET CORPORATION WAS HELD
TO BE AMENABLE TO SUIT.  AND THAT POLICY HAS BEEN FOLLOWED.  FOR WHEN
IT COMES TO THE UTILIZATION OF CORPORATE FACILITIES  FN2  IN THE
BROADENING PHASES OF FEDERAL ACTIVITIES IN THE COMMERCIAL OR BUSINESS
FIELD, IMMUNITY FROM SUIT IS NOT FAVORED.  KEIFER & KEIFER V.
RECONSTRUCTION FINANCE CORP., 306 U.S. 381; FEDERAL HOUSING
ADMINISTRATION V. BURR, 309 U.S. 242.  CONGRESS ADOPTED THAT POLICY
WHEN IT MADE CORPORATIONS WHOLLY OWNED BY THE UNITED STATES SUABLE ON
MARITIME CAUSES OF ACTION UNDER SEC. 2 OF THE SUITS IN ADMIRALTY ACT. 
THAT IT HAD THE POWER TO GRANT OR WITHHOLD IMMUNITY FROM SUIT ON BEHALF
OF GOVERNMENTAL CORPORATIONS IS PLAIN.  FEDERAL LAND BANK V. PRIDDY,
295 U.S. 229; RECONSTRUCTION FINANCE CORP. V. MENIHAN CORP., 312 U.S.
81.  WE MAY ALSO ASSUME THAT IT WOULD HAVE THE POWER TO GRANT IMMUNITY
TO PRIVATE OPERATORS OF GOVERNMENT VESSELS FOR THEIR TORTS.  BUT SUCH A
BASIC CHANGE IN ONE OF THE FUNDAMENTALS OF THE LAW OF AGENCY SHOULD
HARDLY BE LEFT TO CONJECTURE.  THE WITHDRAWAL OF THE RIGHT TO SUE THE
AGENT FOR HIS TORTS WOULD RESULT AT TIMES IN A SUBSTANTIAL DILUTION OF
THE RIGHTS OF CLAIMANTS.  ASSUMING THAT THE ORDINARY RULES OF AGENCY
APPLY IN DETERMINING WHETHER THE UNITED STATES OR THE MARITIME
COMMISSION IS RESPONSIBLE UNDER SEC. 2 OF THE ACT FOR TORTS OF PRIVATE
OPERATORS SUCH AS RESPONDENT, THERE WOULD BE INSTANCES WHERE UNLESS THE
PRIVATE OPERATOR WAS LIABLE NO ONE WOULD BE.  THE PRINCIPAL IS NOT
LIABLE FOR EVERY NEGLIGENT ACT OF HIS AGENT.  FURTHERMORE, IF ALL SUITS
TO ENFORCE MARITIME CAUSES OF ACTION MUST BE BROUGHT IN SUCH CASES
UNDER SEC. 2 OF THE ACT THE SHORT STATUTE OF LIMITATIONS OF TWO YEARS
CONTAINED IN SEC. 5 IS APPLICABLE.  EMERGENCY FLEET CORP. V. ROSENBERG
BROS. & CO., SUPRA.  MOREOVER, IF, AS APPARENTLY WAS THE CASE HERE, THE
CLAIMANT WAS ELIGIBLE TO RECEIVE AND DID RECEIVE COMPENSATION UNDER THE
UNITED STATES EMPLOYEES COMPENSATION ACT (39 STAT. 742, 5 U.S.C. SEC.
751), HE IS BARRED FROM SUING THE UNITED STATES FOR THE TORT.  DAHN V.
DAVIS, 258 U.S. 421.  HE MAY HOWEVER SUE "SOME PERSON OTHER THAN THE
UNITED STATES"; AND IN CASE OF RECOVERY THE AMOUNT IS CREDITED ON THE
COMPENSATION PAYABLE TO HIM.  SEC. 777.  WE MENTION THESE MATTERS AS
ILLUSTRATIONS OF THE PRACTICAL IMPACT ON CLAIMANTS IF IT WERE HELD THAT
THE SUITS IN ADMIRALTY ACT RESTRICTED ALL SUITS IN CASES LIKE THE
PRESENT TO LIBELS IN PERSONAM AGAINST THE UNITED STATES OR ITS WHOLLY
OWNED CORPORATIONS.  WE CAN ONLY CONCLUDE THAT IF CONGRESS HAD INTENDED
TO MAKE SUCH AN INROAD ON THE RIGHTS OF CLAIMANTS IT WOULD HAVE SAID SO
IN UNAMBIGUOUS TERMS.  THERE IS ONE BIT OF LEGISLATIVE HISTORY WHICH IT
IS CLAIMED REVEALS SUCH A PURPOSE.  IT IS A SINGLE STATEMENT MADE BY
REPRESENTATIVE VOLSTEAD, SPONSOR OF THE BILL IN THE HOUSE (59 CONG.
REC. 1680):  "MR. WHITE OF MAINE.  WOULD THIS BILL APPLY TO SHIPPING
BOARD VESSELS THAT ARE ALLOCATED TO PRIVATE CONCERNS AND ARE BEING
OPERATED BY PRIVATE CONCERNS?  MR. VOLSTEAD:  YES; IT COVERS ALL SHIPS
OWNED BY THE GOVERNMENT."  THE REPLY WAS ACCURATE.  THE ACT DOES COVER
GOVERNMENT SHIPS OPERATED BY PRIVATE CONCERNS.  FOR AS WE HAVE SEEN
SEC. 1 IS APPLICABLE TO THAT SITUATION AS WELL AS TO OTHERS AND TAKES
AWAY THE REMEDY OF A LIBEL IN REM.  BUT IT IS A NON SEQUITUR TO SAY
THAT BECAUSE THE ACT TAKES AWAY THE REMEDY OF LIBEL IN REM IN ALL CASES
INVOLVING GOVERNMENT VESSELS AND RESTRICTS THE REMEDIES AGAINST THE
UNITED STATES AND ITS WHOLLY OWNED CORPORATIONS, IT MUST BE PRESUMED TO
HAVE ABOLISHED ALL RIGHT TO PROCEED AGAINST ALL OTHER PARTIES. 
CONGRESS IN FASHIONING SEC. 2 OF THE ACT, LIKE THIS COURT IN
INTERPRETING IT IN THE JOHNSON CASE, WAS PREOCCUPIED WITH SUITS AGAINST
THE UNITED STATES AND ITS WHOLLY OWNED CORPORATIONS.  SINCE IT DEALT
UNDER SEC. 2 ONLY WITH LIBELS IN PERSONAM AGAINST THEM, THE ONLY FAIR
ASSUMPTION IS THAT IT LEFT ALL PERSONAL ACTIONS AGAINST OTHERS WHOLLY
UNAFFECTED. 

IT IS CONTENDED, HOWEVER, THAT IF THE JUDGMENT AGAINST RESPONDENT
STANDS, THE UNITED STATES ULTIMATELY WILL HAVE TO PAY IT BY REASON OF
PROVISIONS OF THE CONTRACT BETWEEN RESPONDENT AND THE COMMISSION.  IT
IS THEREFORE URGED THAT THE UNITED STATES IS THE REAL PARTY IN
INTEREST.  WE DO NOT STOP TO INTERPRET THE CONTRACT.  EVEN IF WE
ASSUME, WITHOUT DECIDING, THAT THE COMMISSION HAS CONTRACTED TO
REIMBURSE THE RESPONDENT FOR SUCH EXPENDITURES, IT DOES NOT AFFECT THE
RESULT IN THIS CASE.  THE RIGHT OF THE PRIVATE OPERATOR TO RECOVER OVER
FROM THE UNITED STATES WOULD BE A MATTER OF FAVOR, NOT OF RIGHT, IN
MANY CASES.  FOR APART FROM ANY EXPRESS CONTRACT THE AGENT'S RIGHT OF
EXONERATION OR INDEMNITY HAS NOT BEEN THOUGHT TO EXTEND TO SITUATIONS
WHERE HIS LIABILITY WAS BASED ON HIS OWN FAULT.  4 WILLISTON, CONTRACTS
(1936 ED.), SEC. 1026.  HENCE WE CANNOT CONCLUDE THAT, IN ALL CASES
WHERE A PRIVATE OPERATOR OF A GOVERNMENT VESSEL UNDER AN AGENCY
AGREEMENT IS SUED, THE UNITED STATES WOULD AS A MATTER OF LAW
ULTIMATELY BE LIABLE TO PAY IN ABSENCE OF AN EXPRESS PROVISION FOR
EXONERATION.  IT IS HARD TO BELIEVE THAT CONGRESS HAD ANY SUCH NOTION
WHEN IT PASSED THE SUITS IN ADMIRALTY ACT.  TO ATTRIBUTE THAT IDEA TO
IT WOULD BE TO GIVE THE ACT A CONSTRUCTION WHICH WOULD IN PRACTICAL
EFFECT ENCOURAGE THE ASSUMPTION BY THE UNITED STATES OF THE OBLIGATIONS
OF PRIVATE PERSONS.  FN3    MOREOVER, IF PETITIONER HAD A CAUSE OF
ACTION AGAINST RESPONDENT, IT IS DIFFICULT TO SEE HOW SHE COULD BE
DEPRIVED OF IT BY REASON OF A CONTRACT BETWEEN RESPONDENT AND THE
COMMISSION.  IMMUNITY FROM SUIT ON A CAUSE OF ACTION WHICH THE LAW
CREATES CANNOT BE SO READILY OBTAINED.  CF. GUARANTY TRUST & S.D. CO.
V. GREEN COVE R. CO., 139 U.S. 137, 143.  THE RIGHTS OF PRINCIPAL AND
AGENT INTER SE ARE NOT THE MEASURE OF THE RIGHTS OF THIRD PERSONS
AGAINST EITHER OF THEM FOR THEIR TORTS.  IT IS, OF COURSE, TRUE THAT
GOVERNMENT CONTRACTORS OBTAIN CERTAIN IMMUNITY IN CONNECTION WITH WORK
WHICH THEY DO PURSUANT TO THEIR CONTRACTUAL UNDERTAKING WITH THE UNITED
STATES.  YEARSLEY V. ROSS CONSTRUCTION CO., 309 U.S. 18, WAS A RECENT
EXAMPLE.  IN THAT CASE THE CONTRACTOR IN BUILDING DIKES IN THE MISSOURI
RIVER FOR THE UNITED STATES HAD WASHED AWAY A PART OF THE PLAINTIFF'S
LAND.  WE HELD THAT THE CONTRACTOR WAS NOT LIABLE, SAYING (PP. 20-21)
"THAT IF THIS AUTHORITY TO CARRY OUT THE PROJECT WAS VALIDLY CONFERRED,
THAT IS, IF WHAT WAS DONE WAS WITHIN THE CONSTITUTIONAL POWER OF
CONGRESS, THERE IS NO LIABILITY ON THE PART OF THE CONTRACTOR FOR
EXECUTING ITS WILL."  BUT HERE THE SITUATION IS QUITE DIFFERENT.  THE
QUESTION IS NOT WHETHER THE COMMISSION HAD AUTHORITY TO DELEGATE TO
RESPONDENT RESPONSIBILITIES FOR MANAGING AND OPERATING THE VESSEL AS
ITS AGENT.  IT IS WHETHER RESPONDENT CAN ESCAPE LIABILITY FOR A
NEGLIGENT EXERCISE OF THAT DELEGATED POWER IF WE ASSUME THAT BY
CONTRACT IT WILL BE EXONERATED OR INDEMNIFIED FOR ANY DAMAGES IT MUST
PAY.  AS STATED IN SLOAN SHIPYARDS CORP. V. EMERGENCY FLEET CORP.,
SUPRA, PP. 566-567, "THE GENERAL RULE IS THAT ANY PERSON WITHIN THE
JURISDICTION ALWAYS IS AMENABLE TO THE LAW.  IF HE IS SUED FOR CONDUCT
HARMFUL TO THE PLAINTIFF HIS ONLY SHIELD IS A CONSTITUTIONAL RULE OF
LAW THAT EXONERATES HIM."  FURTHERMORE, IF THE UNITED STATES WERE TO
BECOME THE REAL PARTY IN INTEREST BY REASON OF A CONTRACT FOR
EXONERATION OR INDEMNITY, A BASIC ALTERATION IN THAT CONCEPT (MINNESOTA
V. HITCHCOCK, 185 U.S. 373, 387) WOULD BE MADE, NOT PURSUANT TO A
CONGRESSIONAL POLICY  FN4  BUT BY REASON OF CONCESSIONS MADE BY
CONTRACTING OFFICERS OF THE GOVERNMENT.  SUCH A CHANGE WOULD BE
DETRIMENTAL TO THE INTERESTS OF PRIVATE CLAIMANTS, AS WE HAVE SAID,
SINCE IT WOULD SUBTRACT FROM THE LEGAL REMEDIES WHICH THE LAW HAS
AFFORDED THEM.  BEYOND THAT IT WOULD MAKE THE EXISTENCE OF A RIGHT TO
EXONERATION OR INDEMNITY A JURISDICTIONAL FACT.  THAT COULD HARDLY HELP
BUT COMPLICATE AND DELAY THE ENFORCEMENT OF RIGHTS BASED ON THESE
MARITIME TORTS.  AT LEAST IN THE ABSENCE OF A CLEAR CONGRESSIONAL
POLICY TO THAT END, WE CANNOT GO SO FAR. 

WE HOLD THAT THE SUITS IN ADMIRALTY ACT DID NOT DEPRIVE PETITIONER OF
THE RIGHT TO SUE RESPONDENT FOR DAMAGES FOR HIS MARITIME TORT.  WHETHER
A CAUSE OF ACTION AGAINST RESPONDENT HAS BEEN ESTABLISHED IS, OF
COURSE, A DIFFERENT QUESTION, AS THE ISSUES INVOLVED IN QUINN V.
SOUTHGATE NELSON CORP., SUPRA, INDICATE.  THE CIRCUIT COURT OF APPEALS
DID NOT REACH THAT QUESTION.  ACCORDINGLY WE REVERSE THE JUDGMENT AND
REMAND THE CAUSE TO IT.  REVERSED. 

FN1  RESPONDENT WAS DESIGNATED AS A MANAGING AGENT FOR THE COMMISSION
AS OWNER "TO MANAGE, OPERATE, AND CONDUCT THE BUSINESS OF THE LINE  ...
FOR AND ON BEHALF OF THE OWNER AND UNDER ITS SUPERVISION AND
DIRECTION."  RESPONDENT AGREED "TO MAN, EQUIP, VICTUAL, SUPPLY AND
OPERATE THE VESSELS, SUBJECT TO SUCH RESTRICTIONS AND IN SUCH MANNER AS
THE OWNER MAY PRESCRIBE" AND "TO CONDUCT ITS OPERATIONS WITH RESPECT TO
THE VESSELS  ...  IN FULL COMPLIANCE WITH THE APPLICABLE PROVISIONS OF
LAW."  RESPONDENT AGREED "SUBJECT TO SUCH REGULATIONS OR METHODS OF
SUPERVISION AND INSPECTION AS MAY BE REQUIRED OR PRESCRIBED" BY THE
COMMISSION TO "EXERCISE REASONABLE CARE AND DILIGENCE TO MAINTAIN THE
VESSELS IN A THOROUGHLY EFFICIENT STATE OF REPAIR, COVERING HULL,
MACHINERY, BOILERS, TACKLE, APPAREL, FURNITURE, EQUIPMENT, AND SPARE
PARTS."  RESPONDENT DID NOT SHARE IN PROFITS BUT WAS ENTITLED TO
REIMBURSEMENT FOR EXPENSES UNDER A PROVISION OF THE CONTRACT WHICH
STATED:  "THE OWNER AGREES TO PAY TO THE MANAGING AGENT THE ACTUAL
OVERHEAD EXPENSES OF THE MANAGING AGENT DETERMINED BY THE OWNER TO HAVE
BEEN FAIRLY AND REASONABLY INCURRED AND TO BE PROPERLY APPLICABLE TO
THE MANAGEMENT AND OPERATION OF THE COMMISSION'S VESSELS UNDER THIS
AGREEMENT." 

FN2  AS TO THE LIABILITY OF PUBLIC OFFICIALS SEE GENERALLY DUNLOP V.
MUNROE, 7 CRANCH 242, 269; OSBORN V. BANK OF UNITED STATES, 9 WHEAT. 
738, 842, 843; WILKES V. DINSMAN, 7 HOW.  89, 123; ROBERTSON V. SICHEL,
127 U.S. 507; SPALDING V. VILAS, 161 U.S. 483; BRISSAC V. LAWRENCE, 2
BLATCHFORD 121; UNITED STATES V. ROGDE, 214 F. 283, 290. 

FN3  THE PROVISION IN SEC. 8 OF THE SUITS IN ADMIRALTY ACT THAT ANY
FINAL JUDGMENT "RENDERED IN ANY SUIT HEREIN AUTHORIZED" SHALL BE PAID
"BY THE PROPER ACCOUNTING OFFICERS OF THE UNITED STATES" MUST BE TAKEN
TO REFER ONLY TO JUDGMENTS AGAINST THE UNITED STATES OR ITS WHOLLY
OWNED CORPORATIONS SINCE UNDER OUR CONSTRUCTION THE ACT DOES NOT
CONTROL OR AFFECT ACTIONS IN PERSONAM AGAINST PRIVATE OPERATORS. 

FN4  CF. CLYDE-MALLORY LINES V. THE EGLANTINE, ANTE, P. 395, IN WHICH
WE HELD THAT THE UNITED STATES BY APPEARING IN AN ACTION FOR LIBEL IN
REM AGAINST A GOVERNMENT VESSEL FOR DAMAGES SUFFERED DURING ITS
OPERATION BY THE UNITED STATES COULD INVOKE THE TWO-YEAR STATUTE OF
LIMITATIONS CONTAINED IN SEC. 5 OF THE SUITS IN ADMIRALTY ACT, EVEN
THOUGH THE UNITED STATES HAD SOLD THE VESSEL TO A PRIVATE OPERATOR.  IN
THAT CASE WE WERE DEALING WITH SEC. 4 OF THE ACT WHICH EXPRESSLY
PROVIDES FOR SUCH AN APPEARANCE IN THAT TYPE OF CASE AND WHICH STATES
THAT "THEREAFTER SUCH CAUSE SHALL PROCEED AGAINST THE UNITED STATES IN
ACCORDANCE WITH THE PROVISIONS OF THIS ACT."  ACCORDINGLY WE STATED,
"THE CONCLUSION IS INESCAPABLE THAT THERE IS NO PRACTICAL DIFFERENCE
BETWEEN SUITS AGAINST THE GOVERNMENT AS OWNER OF THE VESSEL AND AGAINST
THE GOVERNMENT AS THE PARTY IN INTEREST WHEN IT VOLUNTARILY APPEARS TO
DEFEND ITS LATELY SOLD PROPERTY AGAINST TORT LIABILITY." 

REHEARING DENIED. 

NO. 463.  RANIERI V. UNITED STATES. 

REHEARING DENIED. 

NO. 509.  VAN WORMER V. CHAMPION PAPER & FIBRE CO. 

REHEARING DENIED. 

NO. 537.  RODDENBERRY V. FLORIDA. 

REHEARING DENIED. 

NO. 516.  EASTMAN V. GUARANTY TRUST CO. ET AL. 

PETITION FOR REHEARING DENIED.  MR. JUSTICE ROBERTS AND MR. JUSTICE
DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS
APPLICATION. 

NO. 349.  LARGENT V. REEVES, CITY MARSHAL. 

THE MOTION FOR LEAVE TO FILE PETITION FOR REHEARING IS GRANTED, AND
THE PETITION FOR REHEARING IS DENIED.  THE APPLICATION FOR BAIL IS ALSO
DENIED. 

NOS. 26 AND 27.  PFISTER V. NORTHERN ILLINOIS FINANCE CORP. ET AL. 

REHEARING DENIED. 

NO. 507.  HOLIDAY V. UNITED STATES. 

REHEARING DENIED. 

NO. 534.  ORLANDO V. ILLINOIS. 

REHEARING DENIED. 
..END :













TERMINAL ASSN. V. TRAINMEN, 318 U.S. 1 


NO. 218.  ARGUED DECEMBER 15, 16, 1942.  - DECIDED JANUARY 18, 1943.  -
379 ILL. 403, 41 N.E.2D 481, AFFIRMED. 


1.  IN THE ABSENCE OF FEDERAL LEGISLATION WHICH CONFLICTS OR OCCUPIES
THE FIELD, AS HERE, IT IS WITHIN THE AUTHORITY OF A STATE, IN THE
INTEREST OF THE HEALTH AND SAFETY OF EMPLOYEES, TO REQUIRE A TERMINAL
RAILROAD, THOUGH ENGAGED LARGELY IN INTERSTATE COMMERCE, TO PROVIDE
CABOOSES ON TRAINS WITHIN THE STATE ON DESIGNATED RUNS.  P. 7. 

NEITHER THE BOILER INSPECTION ACT, THE SAFETY APPLIANCE ACT, NOR THE
INTERSTATE COMMERCE ACT PRECLUDES THE STATE REGULATION HERE INVOLVED;
AND, SINCE THE INTERSTATE COMMERCE COMMISSION HAS MADE NO RULE OR
REGULATION IN RESPECT OF THE MATTER, IT IS UNNECESSARY TO CONSIDER THE
EXTENT OF THE COMMISSION'S POWER UNDER THOSE ACTS.  NOR IS THE
REGULATION PRECLUDED BY THE RAILWAY LABOR ACT. 

2.  THE STATE REGULATION HERE INVOLVED IS NOT RENDERED INVALID BY THE
FACT THAT SOME OF THE RUNS ARE ACROSS STATE LINES AND, BECAUSE OF LACK
OF FACILITIES, THE CABOOSES MUST BE PROVIDED FOR SOME DISTANCE INTO A
NEIGHBORING STATE; NOR BY THE FACT THAT THE REQUIREMENT MAY TO SOME
EXTENT RETARD, OR INCREASE THE COST OF, INTERSTATE TRANSPORTATION.  P.
8. 

TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS V. BROTHERHOOD OF RAILROAD
TRAINMEN ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

APPEAL FROM A JUDGMENT WHICH, REVERSING A LOWER STATE COURT,
SUSTAINED AN ORDER OF THE ILLINOIS COMMERCE COMMISSION. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

APPELLANT IS A CORPORATION ENGAGED IN PERFORMING TERMINAL SERVICES
AND FURNISHING TERMINAL FACILITIES IN AND ABOUT EAST ST. LOUIS,
ILLINOIS, TO A NUMBER OF RAILROAD COMPANIES WHICH SHARE ITS OWNERSHIP
AND CONTROL.  IT OPERATES SEVERAL YARDS FOR THE SORTING AND
CLASSIFICATION AND INTERCHANGE OF CARS, WITH SOME SERVICE TO INDUSTRIES
WITHIN THE SWITCHING DISTRICT. 

THE BROTHERHOOD OF RAILROAD TRAINMEN, ONE OF THE APPELLEES,
REPRESENTING TRAINMEN AND SWITCHMEN EMPLOYED BY APPELLANT, COMPLAINED
TO THE ILLINOIS COMMERCE COMMISSION OF APPELLANT'S FAILURE TO PROVIDE
CABOOSE CARS FOR ITS EMPLOYEES.  IN ANSWER THE APPELLANT DENIED THAT
THE COMMISSION HAD POWER TO ENTER ANY ORDER THAT WOULD RELATE TO
MOVEMENTS IN INTERSTATE COMMERCE, WHICH IT SAID INCLUDED SUBSTANTIALLY
ALL OF ITS OPERATIONS; AND IT CONTENDED FURTHER THAT IT HAD ALREADY
PROVIDED ALL REASONABLY NECESSARY FACILITIES.  THE ISSUES WERE SHARPLY
CONTESTED BEFORE THE COMMISSION, AND THE EVIDENCE, WHILE IT MAY NOT
HAVE REQUIRED, CERTAINLY PERMITTED THESE CONCLUSIONS: 

APPELLANT'S SWITCHING CREWS MAKE AND BREAK UP TRAINS OF CARS AND
DELIVER AND TRANSFER THEM.  ONE MAN OF EACH CREW IS REQUIRED TO RIDE
THE REAR CAR OF THE TRAIN WHEN IT IS IN MOTION.  DEPENDING UPON THE
DISTANCES BY WHICH FIXED STRUCTURES ALONG THE TRACK CLEAR THIS CAR, HE
RIDES ITS TOP OR SIDE, AND IN SOME PLACES BOTH TOP AND SIDE CLEARANCES
ARE SO SMALL THAT HE MUST RIDE ON THE DRAWBAR PROJECTING FROM THE END
OF THE CAR.  SUDDEN JERKS AND STOPS ARE COMMON AND THEY HAVE ON
OCCASION THROWN OFF SWITCHMEN.  THE DUTIES OF THE REAR SWITCHMAN
INCLUDE LINING SWITCHES INTO POSITION AFTER THE TRAIN HAS PASSED AND
WATCHING STREET AND HIGHWAY CROSSINGS TO PROTECT THE PUBLIC WHEN THE
TRAIN IS BACKING UP.  IN CASES OF EMERGENCY HE MUST STOP THE TRAIN BY
TURNING AN AIR VALVE LOCATED NEXT TO THE DRAWBAR, WHICH HE CANNOT
READILY OR SAFELY DO IF HE IS RIDING ON THE TOP OR SIDE OF THE CAR. 

DURING SOME SEASONS OF THE YEAR HE IS EXPOSED TO RAIN, SLEET, SNOW
AND ICE, WHICH ALSO COVER THE PARTS OF THE CAR TO WHICH HE MUST CLING
TO STAY ON IT, THUS ADDING TO HIS DIFFICULTIES. 

APPELLANT'S TRAINS, WHEN NOT EQUIPPED WITH CABOOSES, HAVE NO STORAGE
SPACE FOR SAFETY DEVICES, FLAGGING EQUIPMENT, OR FOR EXTRA CLOTHING,
LUNCHES AND DRINKING WATER OF THE MEN; AND THEY PROVIDE NO SPACE IN
WHICH THE MEN CAN PERFORM THEIR CLERICAL DUTIES. 

THE COMMISSION FOUND THAT BY PROVIDING CABOOSES THE APPELLANT COULD
ELIMINATE THE NECESSITY FOR THE REAR SWITCHMEN TO RIDE THE TOPS, SIDES,
OR DRAW-BARS OF THE REAR CARS; AFFORD SAFE AND READY ACCESS TO THE AIR
VALVE; AND PROVIDE SPACE FOR STORAGE AND FOR CLERICAL WORK.  IT FOUND
THAT IT WAS ESSENTIAL TO THE HEALTH, SAFETY, AND COMFORT OF THE REAR
SWITCHMEN THAT THE APPELLANT PROVIDE CABOOSES ON ALL OF DESIGNATED RUNS
IN SO FAR AS THEY WERE WITHIN THE CONFINES OF THE STATE, AND MADE ITS
ORDER ACCORDINGLY.  THE ORDER WAS SUSTAINED BY THE SUPREME COURT OF
ILLINOIS AS "OBVIOUSLY PROMULGATED TO PROTECT THE LIVES AND HEALTH OF
CITIZENS OF THIS STATE ENGAGED IN APPELLEE'S BUSINESS WITHIN THE
STATE," AND AS NOT IMPOSING AN UNLAWFUL BURDEN UPON INTERSTATE
COMMERCE.  FN1  THE CASE IS HERE ON APPEAL.  FN2 

ALL BUT AN INSIGNIFICANT NUMBER OF THE CARS IN THE TRAINS ON THE
SPECIFIED RUNS MOVE IN INTERSTATE COMMERCE, SO THAT THE ORDER PERTAINED
TO A MATTER CLEARLY WITHIN THE POWER OF CONGRESS TO REGULATE INTERSTATE
COMMERCE. 

APPELLANT CLAIMS THAT THERE HAD BEEN CONGRESSIONAL OCCUPATION OF THE
FIELD BY VIRTUE OF THE BOILER INSPECTION ACT,  FN3  THE SAFETY
APPLIANCE ACT,  FN4  AND THE INTERSTATE COMMERCE ACT.  FN5 IT IS NOT
CONTENDED, NOR DO WE UNDERSTAND, THAT THESE STATUTES, BY THEMSELVES AND
UNIMPLEMENTED BY ANY ACTION OF THE INTERSTATE COMMERCE COMMISSION, LAY
DOWN ANY REQUIREMENT THAT CABOOSES SHALL OR SHALL NOT BE USED ON ANY OF
THE RUNS IN QUESTION.  NOR IS IT CONTENDED THAT THE INTERSTATE COMMERCE
COMMISSION ITSELF HAS SOUGHT TO MAKE ANY SUCH REQUIREMENT.  AT LEAST IN
THE ABSENCE OF SUCH ACTION THESE ACTS DO NOT THEMSELVES PRECLUDE THE
STATE ORDER, ATLANTIC COAST LINE V. GEORGIA, 234 U.S. 280; CF. WELCH
CO. V. NEW HAMPSHIRE, 306 U.S. 79, AND IT IS UNNECESSARY TO CONSIDER ON
THIS OCCASION AND WITHOUT THE PARTICIPATION OF THE INTERSTATE COMMERCE
COMMISSION WHAT MAY BE THE EXTENT OF ITS POWER UNDER THESE ACTS.  IF IT
SHOULD IN THE EXERCISE OF GRANTED POWER DETERMINE WHETHER APPELLANT
MUST PROVIDE CABOOSES, THE STATE WOULD BE POWERLESS TO GAINSAY IT.
THIS AND NO MORE IS THE EFFECT OF PENNSYLVANIA R. CO. V. PUBLIC SERVICE
COMMISSION, 250 U.S. 566. 

THE RAILWAY LABOR ACT,  FN6  ALSO RELIED UPON BY APPELLANT, REMAINS
FOR CONSIDERATION AND PRESENTS QUESTIONS OF A DIFFERENT ORDER, NOT
HERETOFORE EXAMINED IN ANY OPINION OF THIS COURT.  FN7  THE PURPOSE OF
THIS ACT IS DECLARED TO BE TO PROVIDE "FOR THE PROMPT AND ORDERLY
SETTLEMENT OF ALL DISPUTES CONCERNING RATES OF PAY, RULES, OR WORKING
CONDITIONS"; AND "FOR THE PROMPT AND ORDERLY SETTLEMENT OF ALL DISPUTES
GROWING OUT OF GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION
OF AGREEMENTS COVERING RATES OF PAY, RULES, OR WORKING CONDITIONS." 
FN8  IT PLACES UPON CARRIERS AND EMPLOYEES THE DUTY OF EXERTING EVERY
REASONABLE EFFORT TO SETTLE THESE DISPUTES BY AGREEMENT, AND PROHIBITS
THE CARRIER FROM ALTERING AGREED RATES OF PAY, RULES, OR WORKING
CONDITIONS EXCEPT IN THE MANNER PROVIDED BY THE AGREEMENT OR BY THE ACT
ITSELF.  FN9  MACHINERY IS SET UP FOR THE ADJUSTMENT, MEDIATION, AND
ARBITRATION OF DISPUTES WHICH THE PARTIES DO NOT SUCCEED IN SETTLING
AMONG THEMSELVES.  FN10  THE FIRST DIVISION OF THE NATIONAL RAILROAD
ADJUSTMENT BOARD HAS JURISDICTION OVER DISPUTES INVOLVING TRAIN AND
YARD-SERVICE EMPLOYEES OF CARRIERS, WHICH MAY BE REFERRED TO IT BY
AGREEMENT OF BOTH PARTIES OR BY EITHER PARTY.  FN11  ITS AWARDS ARE
MADE "FINAL AND BINDING" UPON BOTH PARTIES TO THE DISPUTE  FN12  AND
THE CARRIER MAY BE REQUIRED BY THE COURTS TO COMPLY, THE BOARD'S
FINDINGS BEING, IN A PROCEEDING FOR SUCH PURPOSE, PRIMA FACIE EVIDENCE
OF THE FACTS THEREIN STATED.  FN13 

THE ORDER BEFORE US IS THE OUTGROWTH OF A DISPUTE BETWEEN THE CARRIER
AND ITS EMPLOYEES.  THE CONTRACT BETWEEN THE APPELLANT AND THE
BROTHERHOOD CONTAINS PROVISION FOR CABOOSES FOR CERTAIN TRAINS AND
SERVICES, BUT DOES NOT PROVIDE FOR THOSE ORDERED BY THE ILLINOIS
COMMISSION.  WE ASSUME, WITHOUT DECIDING, THAT THE DEMAND FOR
ADDITIONAL CABOOSE SERVICE AND ITS REFUSAL CONSTITUTE A DISPUTE ABOUT
WORKING CONDITIONS, AND THAT THE NATIONAL RAILROAD ADJUSTMENT BOARD
WOULD HAVE JURISDICTION OF IT ON PETITION OF THE EMPLOYEES OR THEIR
REPRESENTATIVE AND MIGHT HAVE MADE AN AWARD SUCH AS THE ORDER IN
QUESTION OR SOME MODIFICATION OF IT.  THE QUESTION IS WHETHER THE
RAILWAY LABOR ACT, SO INTERPRETED, OCCUPIED THE FIELD TO THE EXCLUSION
OF THE STATE ACTION UNDER REVIEW.  WE CONCLUDE THAT IT DOES NOT, AND
FOR THE FOLLOWING REASONS: 

THE RAILWAY LABOR ACT, LIKE THE NATIONAL LABOR RELATIONS ACT,  FN14
DOES NOT UNDERTAKE GOVERNMENTAL REGULATION OF WAGES, HOURS, OR WORKING
CONDITIONS.  INSTEAD IT SEEKS TO PROVIDE A MEANS BY WHICH AGREEMENT MAY
BE REACHED WITH RESPECT TO THEM.  THE NATIONAL INTEREST EXPRESSED BY
THOSE ACTS IS NOT PRIMARILY IN THE WORKING CONDITIONS AS SUCH.  SO FAR
AS THE ACT ITSELF IS CONCERNED THESE CONDITIONS MAY BE AS BAD AS THE
EMPLOYEES WILL TOLERATE OR BE MADE AS GOOD AS THEY CAN BARGAIN FOR. 
THE ACT DOES NOT FIX AND DOES NOT AUTHORIZE ANYONE TO FIX GENERALLY
APPLICABLE STANDARDS FOR WORKING CONDITIONS.  THE FEDERAL INTEREST THAT
IS FOSTERED IS TO SEE THAT DISAGREEMENT ABOUT CONDITIONS DOES NOT REACH
THE POINT OF INTERFERING WITH INTERSTATE COMMERCE.  THE MEDIATION BOARD
AND ADJUSTMENT BOARD ACT TO COMPOSE DIFFERENCES THAT THREATEN
CONTINUITY OF WORK, NOT TO REMOVE CONDITIONS THAT THREATEN THE HEALTH
OR SAFETY OF WORKERS.  CF. PENNSYLVANIA R. CO. V. LABOR BOARD, 261 U.S.
72, 84. 

STATE LAWS HAVE LONG REGULATED A GREAT VARIETY OF CONDITIONS IN
TRANSPORTATION AND INDUSTRY, SUCH AS SANITARY FACILITIES AND
CONDITIONS, SAFETY DEVICES AND PROTECTIONS, PURITY OF WATER SUPPLY,
FIRE PROTECTION, AND INNUMERABLE OTHERS.  ANY OF THESE MATTERS MIGHT,
WE SUPPOSE, BE THE SUBJECT OF A DEMAND BY WORKMEN FOR BETTER PROTECTION
AND UPON REFUSAL MIGHT BE THE SUBJECT OF A LABOR DISPUTE WHICH WOULD
HAVE SUCH EFFECT ON INTERSTATE COMMERCE THAT FEDERAL AGENCIES MIGHT BE
INVOKED TO DEAL WITH SOME PHASE OF IT.  BUT WE WOULD HARDLY BE EXPECTED
TO HOLD THAT THE PRICE OF THE FEDERAL EFFORT TO PROTECT THE PEACE AND
CONTINUITY OF COMMERCE HAS BEEN TO STRIKE DOWN STATE SANITARY CODES,
HEALTH REGULATIONS, FACTORY INSPECTIONS, AND SAFETY PROVISIONS FOR
INDUSTRY AND TRANSPORTATION.  WE SUPPOSE EMPLOYEES MIGHT CONSIDER THAT
STATE OR MUNICIPAL REQUIREMENTS OF FIRE ESCAPES, FIRE DOORS, AND FIRE
PROTECTION WERE INADEQUATE AND MAKE THEM THE SUBJECT OF A DISPUTE, AT
LEAST SOME PHASES OF WHICH WOULD BE OF FEDERAL CONCERN.  BUT IT CANNOT
BE THAT THE MINIMUM REQUIREMENTS LAID DOWN BY STATE AUTHORITY ARE ALL
SET ASIDE.  WE HOLD THAT THE ENACTMENT BY CONGRESS OF THE RAILWAY LABOR
ACT WAS NOT A PREEMPTION OF THE FIELD OF REGULATING WORKING CONDITIONS
THEMSELVES AND DID NOT PRECLUDE THE STATE OF ILLINOIS FROM MAKING THE
ORDER IN QUESTION. 

WE MUST DECIDE THE QUESTION OF STATE POWER IN THIS CASE IN THE
ABSENCE OF ANY ACT OF CONGRESS THAT CONFLICTS WITH THE ORDER OR MAY BE
SAID TO OCCUPY ITS FIELD. 

THE ORDER OF THE STATE COMMISSION REQUIRES THAT CABOOSES BE USED ON
APPELLANT'S TRAINS MAKING RUNS OF TWO DIFFERENT SORTS.  RUNS OF THE
FIRST SORT ARE MADE BY TRAINS WHICH, ALTHOUGH THEY BEGIN AND END AND
MAKE THEIR ENTIRE MOVEMENTS WITHIN THE STATE, ARE MADE UP ALMOST
ENTIRELY OF CARS MOVING IN INTERSTATE COMMERCE.  RUNS OF THE SECOND
SORT ARE MADE BY TRAINS WHICH MOVE BETWEEN POINTS IN EAST ST. LOUIS,
ILLINOIS, AND ST. LOUIS, MISSOURI, AND CROSS ONE OR THE OTHER OF TWO
BRIDGES SPANNING THE MISSISSIPPI RIVER AND THE STATE LINE.  ON ITS FACE
THE ORDER REQUIRES ONLY THAT CABOOSES BE USED WITHIN ILLINOIS, AND DOES
NOT REQUIRE THAT THEY BE USED IN MISSOURI.  APPELLANT CONTENDS, AND WE
ASSUME, HOWEVER, THAT THERE DO NOT EXIST, AND THAT IT IS NOT REASONABLY
PRACTICABLE TO INSTALL, FACILITIES FOR TAKING ON AND DROPPING OFF
CABOOSES AT THE POINTS WHERE THE TRAINS CROSS THE STATE LINE; AND THAT
THE PRACTICAL CONSEQUENCE OF THE ORDER IS THAT IF CABOOSES ARE TO BE
USED IN ILLINOIS ON RUNS OF THE SECOND SORT THEY MUST ALSO BE USED AT
LEAST AS FAR AS THE NEAREST SWITCHING POINT IN MISSOURI. 

AS TO BOTH CLASSES OF RUNS, THE EFFECT OF THE ORDER IS IN SOME
MEASURE TO RETARD AND INCREASE THE COST OF MOVEMENTS IN INTERSTATE
COMMERCE.  THIS IS NOT TO SAY, HOWEVER, THAT THE ORDER IS NECESSARILY
INVALID.  IN THE ABSENCE OF CONTROLLING FEDERAL LEGISLATION THIS COURT
HAS SUSTAINED A WIDE VARIETY OF STATE REGULATIONS OF RAILROAD TRAINS
MOVING IN INTERSTATE COMMERCE HAVING SUCH EFFECT.  FN15  THE GOVERNING
PRINCIPLES WERE RECENTLY STATED IN PARKER V. BROWN, 317 U.S. 341, 361
363. 

WE ARE OF OPINION THAT UNDER THESE PRINCIPLES THE ORDER IS VALID AS
TO RUNS OF BOTH SORTS.  IT FINDS ITS ORIGIN IN THE LOCAL CLIMATIC
CONDITIONS AND IN THE HAZARDS CREATED BY PARTICULAR LOCAL PHYSICAL
STRUCTURES, AND IT HAS RATHER OBVIOUS RELATION TO THE HEALTH AND SAFETY
OF LOCAL WORKMEN.  THE RECORD IN THE CASE DOES NOT AFFORD A SURE BASIS
FOR CALCULATING THE COSTS TO COMMERCE RESULTING FROM THE ORDER AGAINST
THE COSTS TO THE SAFETY AND HEALTH OF THE WORKMEN WHICH IT WAS INTENDED
TO MINIMIZE, AND THERE IS EVIDENCE IN THE CASE THAT NEARBY RAILROADS
HAVE SEEN FIT IN THE ABSENCE OF LEGAL COMPULSION TO PROVIDE CABOOSES IN
CIRCUMSTANCES SUBSTANTIALLY SIMILAR TO THOSE UPON WHICH APPELLANT
RELIES TO ESTABLISH ABSENCE OF STATE POWER. 

IF LACK OF FACILITIES AT THE STATE LINE REQUIRES AS A PRACTICAL
MATTER THAT IN ORDER TO PROVIDE CABOOSES IN ILLINOIS APPELLANT MUST
ALSO PROVIDE THEM FOR SOME DISTANCE IN MISSOURI, THAT FACT DOES NOT
PRECLUDE ILLINOIS FROM REGULATING THE OPERATION TO THE LIMITS OF ITS
TERRITORY.  MISSOURI PACIFIC RY. CO. V. KANSAS, 216 U.S. 262; CF. SOUTH
COVINGTON & C.S. RY. CO. V. COVINGTON, 235 U.S. 537.  FN16 

THE JUDGMENT OF THE COURT BELOW IS AFFIRMED. 

FN1  379 ILL. 403, 41 N.E.2D 481. 

FN2  SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 344(A). 

FN3  45 U.S.C. SECS. 22-34. 

FN4  45 U.S.C. SEC. 1 ET SEQ. 

FN5  49 U.S.C. SEC. 1 ET SEQ. PARTICULAR RELIANCE IS PUT UPON
PARAGRAPHS (10), (11), (13), (14), (15), (16), (17), AND (21) OF SEC.
1, RELATING TO THE COMMISSION'S POWERS IN RESPECT TO CAR SERVICE; AND
UPON PARAGRAPH 2 OF SEC. 20(A), RELATING TO ITS POWERS OVER THE
ISSUANCE OF SECURITIES AND THE ASSUMPTION OF LIABILITIES THEREON.  WE
HAVE NOT BEEN INFORMED WHETHER SUCH ISSUANCE OR ASSUMPTION IS NEEDED TO
OBTAIN THE CABOOSES WHICH THE ILLINOIS COMMISSION HAS ORDERED TO BE
USED.    FN6  45 U.S.C. SEC. 151 ET SEQ. 

FN7  CF. MISSOURI PACIFIC R. CO. V. NORWOOD, 283 U.S. 249, 258. 

FN8  45 U.S.C. SEC. 151A. 

FN9  45 U.S.C. SEC. 152, PARAGRAPHS 1 AND 7. 

FN10  45 U.S.C. SEC. 153 ET SEQ. 

FN11  45 U.S.C. SEC. 153(H)(I); SEE ALSO SEC. 155. 

FN12  45 U.S.C. SEC. 153(M).    FN13 45 U.S.C. SEC. 153(P). 

FN14  29 U.S.C. SEC. 151 ET SEQ. 

FN15  SEE CASES CITED IN CALIFORNIA V. THOMPSON, 313 U.S. 109, 113
114. 

FN16  THIS CASE INVOLVED A STREET-CAR LINE RUNNING BETWEEN COVINGTON,
KENTUCKY, AND CINCINNATI, OHIO, OVER A BRIDGE CONNECTING THE TWO
CITIES.  THE CITY OF COVINGTON REQUIRED THAT:  (1) PASSENGERS MUST NOT
RIDE ON CAR PLATFORMS UNLESS THE PLATFORMS WERE EQUIPPED WITH SUITABLE
RAILS AND BARRIERS; (2) THE CARS MUST BE KEPT CLEAN, VENTILATED AND
FUMIGATED; (3) THE TEMPERATURE OF THE AIR IN THE CARS MUST NEVER FALL
BELOW A STATED MINIMUM; (4) IN PRACTICAL EFFECT, THAT ADDITIONAL CARS
MUST BE RUN IN CINCINNATI AS WELL AS IN COVINGTON IN EXCESS OF THE
CINCINNATI FRANCHISE RIGHTS AND IN SUCH MANNER AS TO MAKE PROBABLE THE
CREATION OF SERIOUS IMPEDIMENTS TO OTHER TRAFFIC IN CINCINNATI AND
CONFLICT WITH CINCINNATI REGULATIONS.  THE FIRST TWO REQUIREMENTS WERE
SUSTAINED.  THE THIRD WAS STRUCK DOWN BECAUSE THE OPENING AND CLOSING
OF THE CAR DOORS MADE COMPLIANCE IMPOSSIBLE; THE FOURTH, BECAUSE OF THE
LIKELIHOOD THAT SERIOUS BURDENS WOULD BE IMPOSED UPON INTERSTATE
COMMERCE BY VIRTUE OF THE IMPOSSIBILITY OF COMPLIANCE WITH PROBABLE
CONFLICTING REGULATIONS.  THESE FACTORS HAVE NOT BEEN SHOWN TO EXIST IN
THE PRESENT CASE. 
..END :





LABOR BOARD V. I. & M. ELECTRIC CO., 318 U.S. 9 


NO. 73.  ARGUED NOVEMBER 13, 16, 1942.  - DECIDED JANUARY 18, 1943.  -
124 F.2D 50, AFFIRMED. 


1.  AN APPLICATION TO THE CIRCUIT COURT OF APPEALS, UNDER SEC. 10(E)
OF THE NATIONAL LABOR RELATIONS ACT, FOR LEAVE TO ADDUCE ADDITIONAL
EVIDENCE BEFORE THE BOARD, IS ADDRESSED TO THE SOUND JUDICIAL
DISCRETION OF THE COURT.  P. 16. 

2.  ALTHOUGH MISCONDUCT OF THE PARTY MAKING CHARGES OF UNFAIR LABOR
PRACTICES DOES NOT DEPRIVE THE NATIONAL LABOR RELATIONS BOARD OF
JURISDICTION TO ISSUE A COMPLAINT AND CONDUCT A PROCEEDING, SUCH
MISCONDUCT MAY PROPERLY BE CONSIDERED BY THE BOARD IN DETERMINING
WHETHER IT SHOULD INSTITUTE OR CONTINUE A PROCEEDING UPON THE CHARGES. 
P. 18. 

3.  AN EMPLOYER WHICH HAD BEEN FOUND GUILTY BY THE NATIONAL LABOR
RELATIONS BOARD OF UNFAIR LABOR PRACTICES AND ORDERED TO DISESTABLISH A
UNION FOUND BY THE BOARD TO BE COMPANY DOMINATED, PETITIONED THE
CIRCUIT COURT OF APPEALS UNDER SEC. 10(E) OF THE NATIONAL LABOR
RELATIONS ACT FOR AN ORDER THAT THE BOARD HEAR AND CONSIDER NEW
EVIDENCE OF A COURSE OF DEPREDATIONS, INCLUDING DYNAMITINGS, COMMITTED
UPON THE EMPLOYER'S PROPERTY DURING THE PENDENCY OF THE CASE BEFORE THE
BOARD.  IT APPEARED THAT AN OFFICER AND A MEMBER OF THE UNION WHICH
FILED THE CHARGES UPON WHICH THE BOARD INSTITUTED ITS PROCEEDINGS HAD
BEEN CONVICTED OF PARTICIPATION IN THE DEPREDATIONS, AND THAT THEY AND
OTHERS AFFILIATED WITH THIS UNION AND IN CLOSE RELATION TO THEM HAD
TESTIFIED ON BEHALF OF THE BOARD; AND IT WAS ALLEGED THAT THE
DEPREDATIONS WERE PART OF A CONSPIRACY OF THIS UNION TO INFLUENCE THE
CASE.  THE ACTION OF THE CIRCUIT COURT OF APPEALS IN GRANTING THE
PETITION ON THE GROUND THAT THE NEW EVIDENCE WAS MATERIAL TO THE
CREDIBILITY OF BOARD WITNESSES AND ON THE ISSUE OF COMPANY DOMINATION,
HELD, UPON A REVIEW OF THE WHOLE RECORD, NOT TO CONSTITUTE AN ABUSE OF
ITS DISCRETION.  P. 29. 

NATIONAL LABOR RELATIONS BOARD V. INDIANA & MICHIGAN ELECTRIC CO. ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 316 U.S. 657, TO REVIEW A DECREE REMANDING A CAUSE TO THE
NATIONAL LABOR RELATIONS BOARD WITH DIRECTIONS TO HEAR ADDITIONAL
EVIDENCE.  SEE 20 N.L.R.B. 989. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE COURT BELOW GRANTED RESPONDENT INDIANA AND MICHIGAN ELECTRIC
COMPANY'S PETITION TO REMAND THE CASE TO THE LABOR BOARD TO HEAR
ADDITIONAL EVIDENCE AS TO A COURSE OF DEPREDATIONS, INCLUDING
DYNAMITINGS, COMMITTED, IT IS ALLEGED, BY LOCAL B-9 OF THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, ON THE COMPANY'S
PROPERTIES DURING THE PENDENCY OF THE CASE.  IT DIRECTED THAT THE BOARD
MAKE FINDINGS ON SUCH EVIDENCE, INCLUDE IT IN THE TRANSCRIPT, AND MAKE
SUCH MODIFICATIONS, IF ANY, IN ITS ORDER, AS THE EVIDENCE MIGHT
REQUIRE.  THE COURT EXPRESSLY REFRAINED FROM PASSING ON QUESTIONS AS TO
THE BIAS AND PARTISANSHIP OF THE TRIAL EXAMINER AND THE SUFFICIENCY OF
THE FINDINGS AND OF THE EVIDENCE, RAISED BY THE BOARD'S PETITION FOR
ENFORCEMENT AND THE ANSWER THERETO.  THE IMPORTANCE OF THE QUESTIONS
RAISED TO ENFORCEMENT OF THE ACT PROMPTED US TO GRANT CERTIORARI.  FN1 

FOR PRESENT PURPOSES WE TAKE TO BE TRUE THE FACTS STATED IN THE
PETITION OR OFFER OF PROOF ON THE BASIS OF WHICH THE COURT BELOW
DIRECTED A REMAND.  THESE FACTS WERE STATED ON OATH, AND HAVE NOT BEEN
DENIED.  PETITIONER SAYS THAT WE MUST HOLD THAT EVEN IF TRUE THEY ARE
IMMATERIAL.  ON THIS ASSUMPTION OF TRUTH THE CASE IS AS FOLLOWS: 

ON NOVEMBER 12, 1938, SAMUEL GUY, THE BUSINESS MANAGER OF LOCAL B-9
OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, FILED IN
AMENDED FORM WITH THE BOARD CHARGES THAT THE COMPANY HAD BEEN GUILTY OF
SEVERAL UNFAIR LABOR PRACTICES.  ON THE SAME DAY THE BOARD THROUGH ITS
REGIONAL DIRECTOR ISSUED A COMPLAINT AGAINST THE COMPANY, SETTING
NOVEMBER 28, 1938, AS A HEARING DATE, AND EVENTS OF VIOLENCE ENSUED IN
THE FOLLOWING SEQUENCE AS RELATED TO THE COMPANY'S STEPS IN DEFENSE OF
THE CASE: 

THE COMPANY FILED ITS ANSWER ON NOVEMBER 23, 1938.  ON THE FOLLOWING
DAY, FOUR DAYS BEFORE THE HEARING, CABLES AT ONE OF THE COMPANY'S SOUTH
BEND SUBSTATIONS WERE DYNAMITED.  THE HEARINGS PROCEEDED, AND THE TRIAL
EXAMINER'S INTERMEDIATE REPORT RECOMMENDED GENERALLY AGAINST THE
COMPANY. 

ON SEPTEMBER 1, 1939, THE COMPANY FILED ITS EXCEPTIONS TO THE
INTERMEDIATE REPORT.  ON SEPTEMBER 5, THREE OF ITS TRANSMISSION LINE
POLES WERE SAWED OFF, AND ON SEPTEMBER 8, A TRANSMISSION LINE TOWER WAS
DYNAMITED.  ON OCTOBER 17, 1939, THE ORAL HEARING ON THE EXCEPTIONS WAS
SET BEFORE THE BOARD AT WASHINGTON FOR NOVEMBER 9, 1939.  TWO DAYS
LATER ANOTHER TRANSMISSION LINE TOWER WAS DYNAMITED.  ON OCTOBER 28,
TWO TRANSMISSION POLES AT DIFFERENT LOCATIONS WERE DYNAMITED.  ANOTHER
TRANSMISSION TOWER WAS SO DESTROYED ON OCTOBER 30, TEN DAYS BEFORE THE
ORAL HEARING, AND TWO MORE AT DIFFERENT PARTS OF THE SYSTEM ON NOVEMBER
23, 1939.  ALL CARRIED HIGH VOLTAGE LINES, AND SOME WERE LOCATED ALONG
PUBLIC HIGHWAYS OR RAILROAD TRACKS. 

ON FEBRUARY 19, 1940, THE COMPANY FILED WITH THE BOARD A PETITION TO
REOPEN THE CASE AND RECEIVE FURTHER EVIDENCE.  THIS PETITION ALLEGED
THE COMMISSION OF THE DEPREDATIONS UPON ITS PROPERTY AS SET FORTH ABOVE
AND FURTHER THAT:  JOHN R. MARKS, ASSISTANT BUSINESS MANAGER OF LOCAL B
9, AND EARL FREEMAN, ONE OF ITS MEMBERS, BOTH OF WHOM HAD BEEN
WITNESSES AGAINST THE COMPANY, AND THREE OTHERS, WERE ARRESTED AFTER
FEBRUARY 1, 1940, AND CHARGED WITH THE COMMISSION OF SOME OR ALL OF THE
DEPREDATIONS, AND WITH HAVING CONSPIRED TO COMMIT THEM ALL.  EXCEPT
MARKS, EACH HAD MADE CONFESSIONS STATING THAT MARKS PAID THEM SUMS OF
MONEY AGGREGATING $2,325 FOR COMMITTING SUCH ACTS.  ONE OF THEM STATED
THAT MARKS HAD CAUSED THE FIRST DYNAMITING TO INTIMIDATE THE COMPANY IN
CONNECTION WITH THE HEARING AND THREE STATED THAT HE HAD CAUSED THE
LATER ONES TO INTIMIDATE IT IN CONNECTION WITH THE ORAL ARGUMENT.  THE
COMPANY PROPOSED BY THE EVIDENCE OF DYNAMITING TO DISCREDIT MARKS AND
FREEMAN, ON WHOSE TESTIMONY THE TRIAL EXAMINER APPEARED TO RELY.  IT
ALSO SOUGHT TO DISCREDIT GUY, WHO ALSO HAD BEEN A WITNESS, ON THE CLAIM
THAT HE KNEW, OR MUST HAVE KNOWN, OF THE USE OF THE $2,325 OF THE
UNION'S MONEY FOR THE PURPOSE OF DESTROYING RESPONDENT'S PROPERTY.  BUT
IT CLAIMED MORE.  IT ASSERTED EVIDENCE OF A CONSPIRACY TO DESTROY
PROPERTY TO INFLUENCE THE PENDING CASE, WHICH IT CONTENDED WAS NOT A
GOOD-FAITH LABOR CONTROVERSY, BUT AN UNLAWFUL EFFORT OF LOCAL B-9 TO
COERCE THE COMPANY TO REQUIRE ITS EMPLOYEES TO JOIN THE UNION. 

ON FEBRUARY 28, 1940, THE BOARD DENIED THE COMPANY'S PETITION.  IT
HELD THAT "THE MATTERS RECITED THEREIN HAVE NO RELATION TO THE ISSUES
IN THIS PROCEEDING."  THE BOARD WENT ON TO MAKE FINDINGS ON THE ISSUES,
EXPRESSLY RECITING THAT IT DID SO "UPON THE ENTIRE RECORD IN THE
CASE."  WHILE THE BOARD DID NOT DESIGNATE ALL OF THE TESTIMONY FOR
PRINTING, IT HAS CERTIFIED IT ALL TO US, IT HAS STRICKEN NO TESTIMONY
OF ANY WITNESS IN QUESTION FROM THE RECORD AND HAS MADE NO FINDING THAT
ANY SPECIFIC PARTS OF IT WERE NOT RELIED UPON.  FN2 

THE REPORT OF THE TRIAL EXAMINER, DUDLEY, HAD HELD THE COMPANY'S
ATTITUDE TO BE HOSTILE AND OBSTRUCTIVE TOWARD THE EFFORT TO UNIONIZE
ITS MEN, RELYING SUBSTANTIALLY ON EVENTS AS TO WHICH GUY, MARKS, AND
FREEMAN HAD TESTIFIED.  THE BOARD FINDINGS MADE BUT LITTLE REFERENCE TO
THE ACTIVITIES OF GUY AND NO REFERENCE AT ALL TO MARKS, BUT REACHED THE
SAME CONCLUSION AS TO THE ATTITUDE OF THE COMPANY.  THE EXAMINER HAD
RECOMMENDED ORDERING IMMEDIATE AND FULL REINSTATEMENT OF FREEMAN AND
THAT HE BE MADE WHOLE FOR ALL LOST WAGES.  THE BOARD DID NOT FOLLOW
THAT RECOMMENDATION.  THE EXAMINER HAD RECOMMENDED AN ORDER THAT THE
COMPANY WITHDRAW ALL RECOGNITION FROM RESPONDENT MICHIANA ASSOCIATION
AS REPRESENTATIVE OF EMPLOYEES UPON THE GROUND OF COMPANY PROMOTION AND
DOMINATION, AND THE BOARD SO FOUND AND SO ORDERED.  THE EXAMINER HAD
ALSO RECOMMENDED THAT THE COMPANY BE ORDERED TO CEASE AND DESIST
COERCING EMPLOYEES IN THEIR RIGHT, AMONG OTHER THINGS, TO "JOIN OR
ASSIST THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL B
9."  THE BOARD ORDER DROPPED THE NAME OF THE UNION, BUT ORDERED
RESPONDENT GENERALLY TO CEASE AND DESIST FROM INTERFERING WITH ITS
EMPLOYEES IN THE EXERCISE OF THEIR RIGHT "TO JOIN OR ASSIST LABOR
ORGANIZATIONS." 

ON DECEMBER 13, 1940, THE BOARD PETITIONED FOR ENFORCEMENT OF ITS
ORDER AND ON JULY 29, 1941, THE COMPANY PETITIONED THE CIRCUIT COURT OF
APPEALS FOR A REMAND TO THE BOARD PURSUANT TO SEC. 10(E) OF THE
NATIONAL LABOR RELATIONS ACT.  THIS PETITION REFERRED TO THE EARLIER
PETITION TO THE BOARD AND SET FORTH UNDER OATH IN ADDITION THAT:
MARKS, FREEMAN AND ANOTHER MEMBER OF THE BROTHERHOOD HAD BEEN CONVICTED
OF ONE OF THE DYNAMITINGS DESCRIBED IN THE PETITION AND SENTENCED TO
TERMS OF FROM TWO TO FOURTEEN YEARS IN THE STATE PENITENTIARY; AND TWO
OTHERS HAD PLEADED GUILTY OF OTHER OF THE DEPREDATIONS.  MARKS HAD SAID
HE OBTAINED ALL OF THE MONEY TO PURCHASE DYNAMITE AND PAY THE
DYNAMITERS FROM THE TREASURY OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL B-9.  THE PETITION ALSO RECITED THAT DURING THE HEARINGS
THE TRIAL EXAMINER ASKED A CONFERENCE WITH THE COMPANY ATTORNEY AND
URGED SETTLEMENT OF THE CASE.  HE WAS TOLD OF THE DYNAMITING OF
NOVEMBER 24, 1938, AND GIVEN REFERENCES TO ARTICLES ABOUT THE PRACTICES
AND METHODS OF THE OFFICERS OF THIS UNION, AND TO THE RECORD IN BOYLE
V. UNITED STATES, 259 F. 803, IN WHICH THE CIRCUIT COURT OF APPEALS FOR
THE SEVENTH CIRCUIT HAD AFFIRMED A CONVICTION OF MICHAEL J. BOYLE, ITS
INTERNATIONAL VICE-PRESIDENT, AND SEVERELY CONDEMNED HIS METHODS IN
LABOR MATTERS.  THE EXAMINER REPLIED, "WELL, YOUR COMPANY WILL BE
REQUIRED SOME TIME TO RECOGNIZE B-9 AND YOU MIGHT AS WELL DO IT NOW." 
ON THREE SEPARATE LATER OCCASIONS DIFFERENT ATTORNEYS OR OFFICERS OF
THE BOARD WERE INFORMED OF THE DEPREDATIONS, BUT CONTINUED TO URGE THE
COMPANY TO CEASE RESISTANCE IN THE CASE.  THE TRUTH OF THESE STATEMENTS
HAS NOT BEEN DENIED.  FINALLY, THE COMPANY ASSERTED IN ITS PETITION TO
THE COURT THAT ON REOPENING IT WOULD BE ABLE TO PROVE THAT THE BOARD'S
WITNESSES (NOT LIMITED TO GUY AND MARKS AND FREEMAN) WERE OF SUCH
CHARACTER THAT THEY ARE NOT ENTITLED TO CREDIT AND BELIEF, AND THAT THE
CASE HAD NO RELATION TO THE PURPOSES OF THE NATIONAL LABOR RELATIONS
ACT. 

THE COURT BELOW STATED AS ONE GROUND OF THE COMPANY'S CASE FOR REMAND
THAT THE TENDERED EVIDENCE WAS MATERIAL FOR THE PURPOSE OF "IMPEACHING
THE CREDIBILITY OF WITNESSES BEFORE THE BOARD ON WHOSE TESTIMONY THE
BOARD RELIED FOR ITS FINDING OF ULTIMATE FACTS."  AFTER REFERRING TO
THE TESTIMONY OF GUY AND MARKS, IT SAID THAT "AT THE TIME OF THE TRIAL,
THE EVIDENCE ADDUCED ON THE TRIAL OF THE CRIMINAL CASES IN THE INDIANA
STATE COURT INVOLVING THESE WITNESSES, WAS NOT AVAILABLE TO RESPONDENT
OR TO THE BOARD.  THE NEW EVIDENCE IS OF SUCH CHARACTER THAT ITS
CONSIDERATION BY THE BOARD WOULD PROBABLY PRODUCE A DIFFERENT RESULT." 
IN SUPPORT OF ITS REMAND IT WENT ON TO SAY THAT THE QUESTION WHETHER
THE SUPERVISORY EMPLOYEES WHOSE ACTIVITIES HAD BEEN FOUND BY THE BOARD
TO CONSTITUTE COERCION ON THE PART OF THE COMPANY "WERE ACTING ON THEIR
OWN BEHALF AND THAT OF THEIR CO-EMPLOYEES, OR AT THE BEHEST OF THE
RESPONDENT, IS THE CRUX OF THE CASE.  ...  THE NEW EVIDENCE MAY THROW
SOME LIGHT ON THE ISSUE OF EMPLOYER DOMINATION." 

CIRCUIT COURT OF APPEALS TO ORDER ADDITIONAL EVIDENCE TO BE TAKEN WHEN
IT IS SHOWN "TO THE SATISFACTION OF THE COURT THAT SUCH ADDITIONAL
EVIDENCE IS MATERIAL," AND THAT THERE WERE REASONABLE GROUNDS FOR THE
FAILURE TO ADDUCE THE EVIDENCE AT THE HEARING.  FN3  IN SOUTHPORT
PETROLEUM CO. V. LABOR BOARD, 315 U.S. 100, 104, WE SUSTAINED THE
BOARD'S CONTENTION AND HELD THAT AN APPLICATION FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE THEREUNDER "WAS ADDRESSED TO THE SOUND JUDICIAL
DISCRETION OF THE COURT."  THE BOARD DOES NOT SUGGEST THAT A DIFFERENT
CONSTRUCTION SHOULD BE PUT UPON THE ACT WHEN THE COURT BELOW DECIDES
AGAINST, RATHER THAN FOR, IT.  THE QUESTION IT HAS SUBMITTED FOR OUR
DECISION IS WHETHER THE COURT BELOW "ACTED ARBITRARILY" AND "ABUSED ITS
DISCRETION."  THUS, IN ORDER TO DECIDE THIS CASE IN FAVOR OF THE BOARD
WE WOULD HAVE TO HOLD NOT MERELY THAT THE EVIDENCE OF DYNAMITING WOULD
BE A MATTER OF INDIFFERENCE IN OUR OWN VIEW OF THE CASE, BUT THAT THE
COURT DESIGNATED BY STATUTE TO EXERCISE DISCRETION IN THE MATTER AND
WHICH DESIRED TO KNOW THE FACTS ABOUT IT BEFORE PASSING ON THE
SUFFICIENCY OF THE EVIDENCE AND THE IMPARTIALITY OF THE EXAMINER AND
WHICH THOUGHT THE FINDER OF THE FACTS SHOULD HEAR AND CONSIDER SUCH
EVIDENCE, MUST NOT ONLY HAVE BEEN IN ERROR BUT MUST ALSO HAVE ABUSED
ITS JUDICIAL DISCRETION. 

THE BOARD ARGUES THAT THE DECISION BELOW MUST BE REVERSED ON THE
GROUNDS THAT THE COURT ERRED IN HOLDING THAT MISCONDUCT OF THE
COMPLAINANT BEFORE THE BOARD WOULD GO TO THE BOARD'S JURISDICTION;
THAT, AS IT CONTENDS, THE COURT HELD THAT A REMAND MIGHT RESULT IN THE
IMPEACHMENT OF THE CREDIBILITY OF GUY, MARKS AND FREEMAN, WHOSE
TESTIMONY WAS EITHER CUMULATIVE (BEING CORROBORATED BY OTHER WITNESSES)
OR ENTIRELY IMMATERIAL AND NOT RELIED UPON BY THE BOARD; AND THAT THERE
IS OTHER SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT THE BOARD'S
DECISION.  THE SPECIFICATIONS OF ERROR IN THE PETITION FOR CERTIORARI
DID NOT, HOWEVER, TAKE THIS NARROW COMPASS, BUT EXTENDED TO THE
PROPRIETY OF THE RULING OF THE COURT BELOW UPON THE WHOLE CASE.  FN4
WE HAVE NOT CONFINED OURSELVES TO THE SCOPE OF THE BOARD'S VIEW OF THE
CASE, AND HAVE EXAMINED ALL THE EVIDENCE IN THE CERTIFIED TRANSCRIPT,
AND NOT MERELY THE EVIDENCE SET FORTH IN THE PRINTED RECORD.  FN5 

WE CANNOT AGREE WITH THE VIEW OF THE CIRCUIT COURT OF APPEALS THAT
THE EVIDENCE MIGHT DISQUALIFY LOCAL B-9 FROM MAKING THE CHARGE OF
VIOLATION AGAINST THE COMPANY OR DEPRIVE THE CHARGE OF FORCE AND
EFFECT, AND THEREBY DEFEAT THE BOARD'S JURISDICTION TO HEAR THE CASE. 

THE ACT REQUIRES A CHARGE BEFORE THE BOARD MAY ISSUE A COMPLAINT, BUT
OMITS ANY REQUIREMENT THAT THE CHARGE BE FILED BY A LABOR ORGANIZATION
OR AN EMPLOYEE.  FN6  IN THE LEGISLATIVE HEARINGS SENATOR WAGNER,
SPONSOR OF THE BILL, STRONGLY OBJECTED TO A LIMITATION ON THE CLASSES
OF PERSONS WHO COULD LODGE COMPLAINTS WITH THE BOARD.  HE SAID IT WAS
OFTEN NOT PRUDENT FOR THE WORKMAN HIMSELF TO MAKE A COMPLAINT AGAINST
HIS EMPLOYER, AND THAT STRANGERS TO THE LABOR CONTRACT WERE THEREFORE
PERMITTED TO MAKE THE CHARGE.  FN7  THE CHARGE IS NOT PROOF.  IT MERELY
SETS IN MOTION THE MACHINERY OF AN INQUIRY.  WHEN A BOARD COMPLAINT
ISSUES, THE QUESTION IS ONLY THE TRUTH OF ITS ACCUSATIONS.  THE CHARGE
DOES NOT EVEN SERVE THE PURPOSE OF A PLEADING.  DUBIOUS CHARACTER, EVIL
OR UNLAWFUL MOTIVES, OR BAD FAITH OF THE INFORMER CANNOT DEPRIVE THE
BOARD OF ITS JURISDICTION TO CONDUCT THE INQUIRY.    WHILE WE HOLD THAT
MISCONDUCT OF THE UNION WOULD NOT DEPRIVE THE BOARD OF JURISDICTION,
THIS DOES NOT MEAN THAT THE BOARD MAY NOT PROPERLY CONSIDER SUCH
MISCONDUCT AS MATERIAL TO ITS OWN DECISION TO ENTERTAIN AND PROCEED
UPON THE CHARGE.  THE BOARD HAS WIDE DISCRETION IN THE ISSUE OF
COMPLAINTS.  INDEED IT DID NOT ACT ON A CHARGE EARLIER MADE BY THE
C.I.O. AGAINST THE SAME EMPLOYER.  IT IS NOT REQUIRED BY THE STATUTE TO
MOVE ON EVERY CHARGE; IT IS MERELY ENABLED TO DO SO.  FN8  IT MAY
DECLINE TO BE IMPOSED UPON OR TO SUBMIT ITS PROCESS TO ABUSE.  THE
BOARD MIGHT PROPERLY WITHHOLD OR DISMISS ITS OWN COMPLAINT IF IT SHOULD
APPEAR THAT THE CHARGE IS SO RELATED TO A COURSE OF VIOLENCE AND
DESTRUCTION, CARRIED ON FOR THE PURPOSE OF COERCING AN EMPLOYER TO HELP
HERD ITS EMPLOYEES INTO THE COMPLAINING UNION, AS TO CONSTITUTE AN
ABUSE OF THE BOARD'S PROCESS. 

THE COMPANY CLAIMS SUPPORT FOR THIS INFERENCE AS TO THE PURPOSE OF
THE ORGANIZERS IN THE TESTIMONY OF GUY, BUSINESS MANAGER OF LOCAL B-9. 
IT APPEARS THAT HE AND MARKS, HIS ASSISTANT, CALLED ON THOMAS F.
ENGLISH, OPERATING HEAD OF THE COMPANY, IN THE SPRING OF 1937.  GUY
TESTIFIED THAT THE PURPOSE WAS "ALONG THE LINES" OF GETTING THE
ASSISTANCE OF ENGLISH IN CAUSING THE EMPLOYEES TO COME INTO LOCAL B-9
INSTEAD OF INTO A C.I.O. UNION OR AN INDEPENDENT UNION.  GUY SAID, "WE
DECIDED" TO "TAKE OVER THE ORGANIZATION" OF THE MEN, THAT "WE HAD
JURISDICTION IN THIS PARTICULAR COMMUNITY OR PART OF THE STATE, AND IF
THEY WERE GOING TO BE ORGANIZED THAT THEY RIGHTFULLY BELONGED IN OUR
ORGANIZATION."  THEIR PROPOSITION TO THE COMPANY THAT IT CAUSE THE MEN
TO JOIN LOCAL B-9 WAS A PROPOSAL TO VIOLATE THE NATIONAL LABOR
RELATIONS ACT, WHOSE PURPOSE IS TO PROTECT THE WORKMEN FROM EMPLOYER
PRESSURE AND LEAVE THEM FREE TO CHOOSE FOR THEMSELVES WHETHER, AND WITH
WHOM, THEY WILL ASSOCIATE.  THE COMPANY REFUSED, AND ENGLISH LATER
WARNED THAT THE ORGANIZERS MUST CEASE REPRESENTING TO THE MEN THAT THE
COMPANY FAVORED LOCAL B-9. 

LATER ANOTHER MEETING WAS CALLED BY A FIELD EXAMINER FOR THE NATIONAL
LABOR RELATIONS BOARD, ATTENDED BY THE FIELD EXAMINER, GUY, MARKS AND
COMPANY REPRESENTATIVES.  ON QUESTIONING, GUY RECALLED THAT BOYLE, VICE
PRESIDENT OF THE BROTHERHOOD, HAD ALSO BEEN THERE.  THE COMPANY
ATTORNEY MADE AN OFFER OF PROOF AT THE HEARING THAT THIS MEETING WAS
HELD ON MAY 5, 1938, AT THE INSTANCE OF THE FIELD EXAMINER, WHO STATED
THAT A SERIES OF INCIDENTS RECITED CONSTITUTED A VIOLATION BY THE
COMPANY OF THE LABOR RELATIONS ACT AND "ASKED MR. BOYLE WHAT
RECOMMENDATION HE WOULD MAKE."  THE TRIAL EXAMINER REJECTED THE PROOF. 
FN9 

APART FROM THE MATERIALITY OF THE ADDITIONAL EVIDENCE ON THE QUESTION
OF THE BOARD'S DISCRETION AS TO WHETHER IT WOULD INSTITUTE OR CONTINUE
A CASE ON THE RECOMMENDATION AND CHARGES OF THIS INFORMER UNDER THE
CIRCUMSTANCES NOW APPEARING, ITS MATERIALITY ON OTHER BRANCHES OF THE
CASE IS SUFFICIENTLY ESTABLISHED TO SUPPORT THE COURT'S EXERCISE OF
DISCRETION IN ORDERING TAKING OF NEW TESTIMONY.  WE THINK THIS COURSE
OF VIOLENCE AND LAWLESSNESS CONCURRENT WITH THE BOARD PROCEEDINGS,
APPARENTLY INSTIGATED BY THOSE WHO STAND TO GAIN FROM THE BOARD'S
DECISIONS, PARTICIPATED IN BY PARTIES AND WITNESSES, MAY NOT BE SAID TO
LACK POSSIBLE MATERIALITY ON OTHER ISSUES OF THE CASE.  THE QUESTION
GOES TO THE FAIRNESS OF GIVING ABSOLUTE FINALITY TO THE BOARD'S
FINDINGS OF FACT WHERE THERE HAS BEEN A REFUSAL TO HEAR AND INCORPORATE
IN THE RECORD SUCH EVIDENCE AS MAY BE PRODUCED OF SUCH A CONSPIRACY. 

THE TESTIMONY ORDERED TO BE HEARD GOES TO THE CREDIBILITY OF MARKS
AND FREEMAN, AND PERHAPS TO THAT OF GUY, THREE WITNESSES WHOM THE
BOARD'S STAFF THOUGHT USEFUL TO CALL, AND ON WHOM THE EXAMINER PLAINLY
RELIED.  THE BOARD EXPRESSLY ACCEPTED AND RELIED UPON THE VERSION OF
EVENTS AS TO WHICH GUY TESTIFIED.  FN10  LOCAL B-9 WAS A PARTY TO THE
PROCEEDING AND APPEARED THROUGHOUT THE HEARINGS BY GUY, WHO MANAGED ITS
INTERESTS.  HE, THE BUSINESS MANAGER, WAS THE FIRST WITNESS; AND MARKS,
HIS ASSISTANT, THE SECOND.  ASIDE FROM ENGLISH, OPERATING HEAD OF THE
COMPANY, AND EMPLOYEES WHO WERE MEMBERS OF WHAT THE BOARD FOUND TO BE A
COMPANY-DOMINATED UNION,  FN11  THE BOARD CALLED TWENTY WITNESSES.  OF
THESE, FOURTEEN BESIDES GUY, MARKS AND FREEMAN, WERE AFFILIATED WITH
LOCAL B-9.  FN12  OF THESE FOURTEEN, EIGHT HAD COME TO WORK SHORTLY
BEFORE OR DURING LOCAL B-9'S ORGANIZING CAMPAIGN WHICH, AS GUY AND
MARKS TESTIFIED AND THE BOARD FOUND, BEGAN IN THE FALL OF 1935.  FN13
ONE OF THESE, BUCKLEY, ADMITTED KNOWING BOYLE, AND MARKS TESTIFIED THAT
HE KNEW BUCKLEY BEFORE HE CAME TO WORK FOR THE COMPANY.  MARKS ALSO
TESTIFIED THAT HE BEGAN ORGANIZATIONAL EFFORTS BY GETTING IN TOUCH WITH
BUCKLEY AND SHIELDS, WHO, LIKE BUCKLEY, CAME TO WORK IN 1935.  BUCKLEY
CALLED THE FIRST MEETING FOR LOCAL B-9 AMONG THE COMPANY'S EMPLOYEES. 
EDWARDS, AN OFFICER OF LOCAL B-9, WAS ANOTHER OF THE NEW EMPLOYEES WHO
FIGURED IN THE CASE.  HE TESTIFIED THAT HE HAD KNOWN MARKS FOR
APPROXIMATELY FOUR YEARS AND HAD SEEN HIM "QUITE A NUMBER OF TIMES" AND
IN "A NUMBER OF PLACES."  OTIS, ANOTHER 1935 ARRIVAL, WENT FROM
CHICAGO, WHERE HE WAS EMPLOYED AT THE TIME OF THE HEARING, TO SOUTH
BEND TO SEE A SICK FRIEND WHOM HE HAD NOT SEEN OR CORRESPONDED WITH FOR
A YEAR.  ON THE WAY HE HAPPENED TO SEE EDWARDS OUT IN A FIELD HUNTING,
AND TALKED TO HIM THERE.  THIS WAS AROUND THANKSGIVING TIME OF 1938. 
THE SOUTH BEND SUBSTATION WAS DYNAMITED NOVEMBER 24, 1938.  THE COMPANY
ATTORNEY ON CROSS-EXAMINATION ASKED "WHAT DID YOU TALK ABOUT?"  OTIS
ANSWERED:  "THAT IS NONE OF YOUR BUSINESS EITHER."  THE BOARD ATTORNEY
THEN OBJECTED TO THE QUESTION, WHICH WAS NEVER ANSWERED BEYOND A DENIAL
THAT THEY TALKED ABOUT THE COMPANY.  OTIS WAS TWENTY-SEVEN YEARS OLD AT
THE TIME OF THE HEARING AND HAD WORKED FOR AT LEAST TEN PUBLIC UTILITY
CONCERNS AND ONE MANUFACTURING PLANT IN A SHORT PERIOD.  ASKED ON CROSS
EXAMINATION THE REASON FOR HIS PECULIARLY ACUTE MEMORY IN RESPECT TO
THE PERIOD OF HIS EMPLOYMENT BY ANOTHER ELECTRIC COMPANY, HE ANSWERED
THAT IT WAS BECAUSE "AN INCIDENT HAPPENED THAT ISN'T ANY AFFAIR OF THE
COURT."  FREEMAN, ONE OF THOSE CONVICTED OF THE DYNAMITING, WAS A
WITNESS, TESTIFIED AT LENGTH AS TO ALLEGED UNFAIR PRACTICES OF THE
COMPANY, AS DID OTHERS AFFILIATED WITH LOCAL B-9, INCLUDING THOSE
MENTIONED ABOVE. 

IT IS IDLE IN THIS CONTEXT TO SAY THAT BECAUSE THE BOARD NOW DENIES
IT RELIED ON THE EVIDENCE OF THE TWO WHO WERE CONVICTED, BECAUSE IT WAS
WILLING TO OMIT THEIR TESTIMONY FROM THE RECORD, AND BECAUSE IT
REJECTED THE EXAMINER'S RECOMMENDED RELIEF TO FREEMAN, THE DOOR SHOULD
BE CLOSED TO ANY INQUIRY ABOUT THE KNOWLEDGE OR RESPONSIBILITY OF
MEMBERS OF THIS GROUP FOR THESE ACTS OF VIOLENCE.  THE ITEMS RECITED
AND MANY OTHERS REVEALED BY THE TRANSCRIPT OF TESTIMONY, AS WELL AS THE
PRINTED RECORD, GIVE SUPPORT FOR THE LOWER COURT'S BELIEF THAT THE
EVIDENCE, IF TAKEN, MIGHT CHANGE THE RESULTS.  THE CONVICTED WITNESSES
AND MANY OF THE OTHERS ON WHOM THE BOARD MUST HAVE RELIED WERE NOT ONLY
CO-MEMBERS OF LOCAL B-9, BUT THEY WERE COOPERATING IN PROMOTING ITS
FIGHT AGAINST THE COMPANY.  IT IS UNREALISTIC TO SAY THAT THIS UNION
WAS GRANTED NOTHING BY THE BOARD'S ORDER OR THAT NO RELIEF HAS BEEN
GIVEN TO THIS PARTICULAR UNION.  THE C.I.O. HAD PRACTICALLY WITHDRAWN
N14 AND THE BOARD'S ORDER DISESTABLISHES RESPONDENT MICHIANA.  THIS NOT
ONLY LEAVES THE FIELD FREE TO LOCAL B-9 AND BREAKS UP THE ONLY CENTER
OF RESISTANCE TO IT, BUT THE BOARD PROHIBITS ANY INTERFERENCE WITH THE
EMPLOYEES' RIGHT "TO JOIN OR ASSIST LABOR ORGANIZATIONS."  THAT
INCLUDES THIS ONE, AND FOR PRACTICAL PURPOSES AT THIS TIME, NONE
OTHER.  LOCAL B-9 WAS THE COMPLAINANT, ITS EFFORT TO ORGANIZE WAS AT
STAKE, AND THE RELATIONS SHOWN ARE SUCH THAT CROSS-EXAMINATION TO
ASCERTAIN WHETHER THE WITNESSES HAD ANY PART IN SUCH VIOLENCE WOULD
APPEAR PROPER.  IT MUST BE REMEMBERED THAT NOT ONLY IS THE CREDIBILITY
OF THESE MEN INVOLVED, BUT THE DECISION ITSELF TURNS ON AN
INTERPRETATION OF THEIR ACTS AND OF THE ACTS AND ATTITUDES OF
SUPERVISORS TOWARD THEM AND WHETHER THE EMPLOYEES WERE IN GOOD FAITH IN
TESTIFYING TO THE REASONS FOR PREFERRING AN ASSOCIATION OF THEIR OWN TO
LOCAL B-9.  WE SEE NO REASON WHY WITNESSES SO IDENTIFIED WITH THE
ORGANIZING EFFORT OF THE DYNAMITERS SHOULD NOT BE QUESTIONED ON A
SUBJECT THAT MIGHT REVEAL BIAS IN THEIR TESTIMONY AND MIGHT ALSO
EXPLAIN ACTS OF ALLEGED DISCRIMINATION AGAINST THEM. 

WE ESPECIALLY SEE NO REASON FOR HOLDING THAT OFFICERS OR MEMBERS OF
LOCAL B-9 SHOULD BE SPARED SUCH INQUIRY WHEN THE SUBJECT WAS THOUGHT BY
THE TRIAL EXAMINER A FIT ONE ON WHICH TO EXAMINE THE HEAD OF THE
EMPLOYEES' ASSOCIATION.  ONE GEORGE S. HOLMES WAS PRESIDENT OF
RESPONDENT MICHIANA, WHICH THE BOARD HOLDS TO BE THE PRODUCT OF
UNLAWFUL COMPANY ACTIVITY AND ORDERS TO BE DISESTABLISHED.  HE WAS A
DISTRIBUTION ENGINEER WHO HAD BEEN EMPLOYED BY THE COMPANY FOR MANY
YEARS.  AFTER TESTIFYING TO HIS UNDERSTANDING OF THE REASONS FOR THE
FORMATION OF MICHIANA AS BEING THE FACT OF OUTSIDE ORGANIZATIONS
"CREATING A DISTURBANCE AND JEOPARDIZING THE PRESENT WORKING
CONDITIONS," THE RELATIVE AMOUNTS OF DUES  FN15  AND DIRECTNESS OF
APPROACH TO THE COMPANY OFFICIALS THROUGH MICHIANA,  FN16  HE WAS
QUESTIONED BY THE TRIAL EXAMINER.  ONE OF THE QUESTIONS PUT BY THE
TRIAL EXAMINER WAS "SUPPOSING THAT THERE WAS AN ORGANIZATION FORMED TO
THROW BOMBS AT THE COMPANY'S PLANT EVERY SATURDAY NIGHT, WOULD YOU
BECOME PRESIDENT OF SUCH AN ORGANIZATION?"  HOLMES SAID THAT HE DOUBTED
THAT EXTREMELY.  THE EXAMINER ALSO ASKED HIM, IN CONNECTION WITH HIS
ATTITUDE AS TO THE PROPER TECHNIQUE OF BARGAINING WITH THE COMPANY,
"WOULD YOU SUGGEST CUTTING DOWN ELECTRICITY AND TURNING OFF ELECTRIC
LIGHTS?"  HE WAS TOLD BY HOLMES THAT "  ...  IF YOU GET THE ENTIRE
COMMUNITY ADVERSELY PREJUDICED AGAINST YOU, YOU WOULD HAVE TOUGH GOING,
REGARDLESS OF HOW YOU ACTED TOWARD THE COMPANY."  IF QUESTIONING AS TO
HYPOTHETICAL BOMBINGS WAS DEEMED MATERIAL AND RELEVANT TO DISCREDIT
HOLMES' CLAIM OF INDEPENDENCE OF COMPANY DOMINATION, WHICH IS THE ONLY
PURPOSE APPARENT, WE WOULD THINK IT A LITTLE DIFFICULT TO CONTEND THAT
IT IS IMPROPER TO INQUIRE AS TO THE ATTITUDES OF THOSE CLOSELY
ASSOCIATED WITH THOSE CONVICTED OF ACTUAL BOMBINGS AS TO THEIR
KNOWLEDGE AND ATTITUDE IN RELATION TO THEM. 

IT IS AT LEAST REASONABLY CONCEIVABLE THAT FURTHER INQUIRY INTO THE
DEPREDATIONS WILL BEAR NOT ONLY UPON THE EFFECT TO BE GIVEN THE
TESTIMONY OF ANY FURTHER PARTICIPANTS OR CONSPIRATORS THEREBY
DISCLOSED, BUT ALSO UPON THAT OF WITNESSES WHOSE TESTIMONY MIGHT
WITHOUT SUCH INQUIRY BE TAKEN TO INDICATE COMPANY DOMINATION OF
MICHIANA.  MANY SUPERVISORY AND OTHER EMPLOYEES VOICED OPPOSITION TO
THE INTRUSION OF "OUTSIDERS" INTO THEIR AFFAIRS.  FN17  PRESENT
KNOWLEDGE AND FURTHER INVESTIGATION OF THE DEPREDATIONS SEEM NOT
ALTOGETHER UNLIKELY TO LEND CREDIBILITY TO THEIR TESTIMONY THAT THEY
HAD ACTED TO PROTECT THEIR OWN INTERESTS AND NOT AS PARTICIPANTS IN
COMPANY INTERFERENCE.  TESTIMONY OF EMPLOYEES THAT THEY ORGANIZED
MICHIANA BECAUSE THEY DID NOT WISH TO ACCEPT THE LEADERSHIP OF LOCAL B
9, AND THAT MICHIANA WAS THE PRODUCT OF THEIR OWN PREFERENCE RATHER
THAN OF COMPANY PRESSURE OR INTERFERENCE, HAS BEEN WHOLLY DISBELIEVED
BY THE BOARD.  IT MIGHT WELL BE REJECTED WHEN LOCAL B-9 APPEARS ONLY IN
THE LIGHT OF AN ARDENT BUT LAWFUL CHAMPION OF WORKMEN'S WELFARE.  THE
TESTIMONY OF MANY EMPLOYEES WAS CRITICAL OF LOCAL B-9, BUT THE GROUNDS
WERE NOT CLEARLY ARTICULATED.  BUT THEIR AVERSION TO THE B-9
LEADERSHIP, DISBELIEVED BY THE BOARD WHEN NO VERY TANGIBLE REASON WAS
BROUGHT OUT TO EXPLAIN IT, MAY BE ENTIRELY CREDIBLE WHEN IT APPEARS
THAT EVEN POORLY EXPLAINED APPREHENSIONS WERE JUSTIFIED AND THAT THERE
WAS AMPLE REASON FOR AVOIDING ENTANGLEMENT WITH THE MEN WHO OFFICERED
LOCAL B-9 AND WHO ARE NOW CONVICTED - INJURING NO DOUBT THE CAUSE OF
THOSE WHOM THEY WERE TRYING TO "TAKE OVER." 

UNDOUBTEDLY, AN ELEMENT OF FAIR JUDICIAL DISCRETION VESTED IN THE
COURT BELOW CONSISTS OF RESPECT FOR A WIDE RANGE OF DISCRETION IN THE
BOARD ITSELF AS TO WHEN IT SHOULD OR SHOULD NOT INQUIRE INTO
ALLEGATIONS OF VIOLENCE OR THREATS OF VIOLENCE BY WITNESSES OR PARTIES
BEFORE IT.  IT MUST NOT BE OVERLOOKED, HOWEVER, THAT THE EVIDENCE ON
WHICH THE COURT REOPENED THIS CASE WAS SUBSTANTIALLY DIFFERENT FROM
THAT ON WHICH THE BOARD REFUSED TO DO SO.  FN18  CHARGES THAT VIOLENCE
HAS BEEN THREATENED OR ENCOURAGED ARE FREQUENT AND EASY IN NEGOTIATIONS
THAT PROCEED IN AN AIR OF BELLIGERENCY.  BOTH SIDES REGARD LABOR
RELATIONS AS TOUGH BUSINESS, AND NOT ONLY VITAL INTERESTS BUT PASSIONS
AND SENSITIVITIES AS TO PRESTIGE ARE INVOLVED.  NEITHER SIDE IS LIGHTLY
TO BE HELD ANSWERABLE FOR ACTS WHERE RESPONSIBILITY CANNOT BE FIXED. 
FEW TASKS OF LEADERSHIP ARE MORE DIFFICULT THAN THOSE WHICH CONFRONT
THOSE WHO REPRESENT LABOR.  IF THEY ARE GENTLE, THEY ARE OFTEN
UNHEEDED; AND IF THEY ARE BLUNT, THEY ARE OFTEN HELD UP AS MENACING. 
THE BOARD IS NOT REQUIRED TO SIDETRACK PROCEEDINGS INVOLVING AN
EMPLOYER'S VIOLATION OF THE LABOR LAW WHILE IT EXPLORES IRRELEVANT
DERELICTIONS OF PARTIES OR WITNESSES OR ACTS OF UNKNOWN OR
IRRESPONSIBLE PERSONS.    THE ACT ACCORDS A GREAT DEGREE OF FINALITY TO
THE BOARD'S FINDINGS OF FACT, AND THIS COURT HAS BEEN INSISTENT THAT
THE ADMONITION OF THE ACT BE STRICTLY OBSERVED.  BUT COURTS WHICH ARE
REQUIRED UPON A LIMITED REVIEW TO LEND THEIR ENFORCEMENT POWERS TO THE
BOARD'S ORDERS ARE GRANTED SOME DISCRETION TO SEE THAT THE HEARINGS OUT
OF WHICH THE CONCLUSIVE FINDINGS EMANATE DO NOT SHUT OFF A PARTY'S
RIGHT TO PRODUCE EVIDENCE OR CONDUCT CROSS-EXAMINATION MATERIAL TO THE
ISSUE.  THE STATUTE DEMANDS RESPECT FOR THE JUDGMENT OF THE BOARD AS TO
WHAT THE EVIDENCE PROVES.  BUT THE COURT IS GIVEN DISCRETION TO SEE
THAT BEFORE A PARTY'S RIGHTS ARE FINALLY FORECLOSED HIS CASE HAS BEEN
FAIRLY HEARD.  FINDINGS CANNOT BE SAID TO HAVE BEEN FAIRLY REACHED
UNLESS MATERIAL EVIDENCE WHICH MIGHT IMPEACH, AS WELL AS THAT WHICH
WILL SUPPORT, ITS FINDINGS, IS HEARD AND WEIGHED. 

WE WILL NOT ASSUME IN THE CIRCUMSTANCES OF THIS CASE THAT THE BOARD
WILL IN ANY EVENT REFUSE TO MODIFY ITS CONCLUSIONS.  SINCE THE COURT
BELOW HAS NOT YET PASSED ON THE ISSUE OF SUFFICIENCY OF THE EVIDENCE TO
SUSTAIN THE FINDING THAT MICHIANA IS A COMPANY-DOMINATED UNION, ANY
ASSUMPTION THAT IT IS SUCH CAN BE ONLY TENTATIVE UNLESS WE ARE TO DENY
THE COMPANY THE RIGHT TO REVIEW GRANTED BY THE ACT.  ONE OF THE VERY
ISSUES YET TO BE DECIDED, AND ON WHICH THE COURT BELOW DESIRES THE
LIGHT OF ADDITIONAL EVIDENCE, IS WHETHER MICHIANA WAS, AS ITS OFFICERS
AND MEMBERS TESTIFIED, A TRUE EMPLOYEE ORGANIZATION, FORMED TO GET AWAY
FROM LOCAL B-9, OR WHETHER IT WAS A COMPANY TOOL, AS THE BOARD HAS
INFERRED FROM TESTIMONY, MUCH OF IT FROM LOCAL B-9 SOURCES.  WE HAVE NO
WARRANT TO ASSUME THAT THE BOARD WILL FIND THAT IT IS COMPANY
DOMINATED, NO MATTER WHAT THE ADDITIONAL PROOF MAY SHOW AS TO THE
MOTIVES OF THE MEN WHO ORGANIZED IT.  WE DO NOT PREJUDGE THE ISSUE - WE
HOLD ONLY THAT IT IS NOT UNREASONABLE OR AN ABUSE OF JUDICIAL POWER TO
RESERVE JUDGMENT ON IT UNTIL THE FULL STORY HAS BEEN HEARD AND JUDGED
BY THE BOARD ITSELF. 

THE LABOR RELATIONS ACT CONTEMPLATES SUBMISSION OF DISPUTES AS TO
LABOR PRACTICES OF EMPLOYERS TO REASONED AND IMPARTIAL DETERMINATION
AFTER FULL AND FAIR HEARING.  IF BY THAT PROCEDURE THERE IS FOUND WRONG
DOING ON BOTH SIDES, THE BOARD CAN ACT TO PREVENT THE EMPLOYER WRONG
DOING PROHIBITED BY THE ACT, EVEN THOUGH IT CAN NOT REACH OTHER WRONG
DOING.  BUT THE PROCESS OF PRESENTING CASES TO IT MUST BE KEPT FREE
FROM FORCES GENERATING BIAS OR INTIMIDATION.  DYNAMITING OR DISPLAY OF
FORCE BY EITHER PARTY HAS NO PLACE IN THE PROCEDURES WHICH LEAD TO
REASONED JUDGMENTS.  THE INFLUENCE OF LAWLESS FORCE DIRECTED TOWARD
PARTIES OR WITNESSES TO PROCEEDINGS DURING THEIR PENDENCY IS SO
SINISTER AND UNDERMINING OF THE PROCESS OF ADJUDICATION ITSELF THAT NO
COURT SHOULD REGARD IT WITH INDIFFERENCE OR SHELTER IT FROM EXPOSURE
AND INQUIRY.  THE REMEDIES OF THE LAW ARE SUBSTITUTES FOR VIOLENCE, NOT
SUPPLEMENTS TO VIOLENCE, AND IT IS PROPER THAT COURTS AND
ADMINISTRATIVE BODIES SO EMPLOY THEIR DISCRETION AS TO DISPEL ANY
BELIEF THAT USE OF DYNAMITE WILL ADVANCE LEGAL REMEDIES. 

FURTHER DELAY IN THIS CASE IS TO BE REGRETTED, PARTICULARLY IN VIEW
OF THE LONG DELAY THAT HAS ALREADY OCCURRED.  WE SET OUT IN THE
FOOTNOTE THE FACTS IN THIS REGARD, WHICH WE DO NOT RECITE AS ANY
CRITICISM OF THE BOARD, WHICH IN TURN HAS SUGGESTED NO CRITICISM OF THE
COMPANY.  FN19 

IN VIEW OF THE WHOLE RECORD THE ORDER OF THE COURT BELOW IS NOT
ARBITRARY OR UNREASONABLE OR AN ABUSE OF DISCRETION.  IT IS AFFIRMED. 

FN1  316 U.S. 657.  THE DECISIONS BELOW ARE REPORTED AT 20 N.L.R.B.
989 AND 124 F.2D 50. 

FN2  SECTION 10 OF THE ACT PROVIDES:  "(C) THE TESTIMONY TAKEN  ...
SHALL BE REDUCED TO WRITING AND FILED WITH THE BOARD.  THEREAFTER, IN
ITS DISCRETION, THE BOARD MAY UPON NOTICE TAKE FURTHER TESTIMONY OR
HEAR ARGUMENT.  ...  (D) UNTIL A TRANSCRIPT OF THE RECORD IN A CASE
SHALL HAVE BEEN FILED IN A COURT, AS HEREINAFTER PROVIDED, THE BOARD
MAY AT ANY TIME, UPON REASONABLE NOTICE AND IN SUCH MANNER AS IT SHALL
DEEM PROPER, MODIFY OR SET ASIDE, IN WHOLE OR IN PART, ANY FINDING OR
ORDER MADE OR ISSUED BY IT.  (E) THE BOARD  ...  SHALL CERTIFY AND FILE
IN THE COURT A TRANSCRIPT OF THE ENTIRE RECORD IN THE PROCEEDING,
INCLUDING THE PLEADINGS AND TESTIMONY UPON WHICH SUCH ORDER WAS ENTERED
AND THE FINDINGS AND ORDER OF THE BOARD.  UPON SUCH FILING, THE COURT
SHALL CAUSE NOTICE THEREOF TO BE SERVED UPON SUCH PERSON, AND THEREUPON
SHALL HAVE JURISDICTION OF THE PROCEEDING AND OF THE QUESTION
DETERMINED THEREIN, AND SHALL HAVE POWER TO  ...  ENTER UPON THE
PLEADINGS, TESTIMONY, AND PROCEEDINGS SET FORTH IN SUCH TRANSCRIPT A
DECREE  ...  " 49 STAT. 454, 29 U.S.C. SEC. 160. 

FN3  49 STAT. 454-455, 29 U.S.C. SEC. 160(E): 

"  ...  IF EITHER PARTY SHALL APPLY TO THE COURT FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE AND SHALL SHOW TO THE SATISFACTION OF THE COURT
THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR THE FAILURE TO ADDUCE SUCH EVIDENCE IN THE
HEARING BEFORE THE BOARD, ITS MEMBER, AGENT, OR AGENCY, THE COURT MAY
ORDER SUCH ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE BOARD, ITS
MEMBER, AGENT, OR AGENCY, AND TO BE MADE A PART OF THE TRANSCRIPT.  ...
" 

FN4  "1.  THE COURT BELOW ERRED IN REMANDING THE CASE TO THE BOARD
FOR THE TAKING OF ADDITIONAL EVIDENCE AS TO THE UNLAWFUL CONDUCT OF THE
UNION WHICH FILED THE CHARGE AGAINST RESPONDENT. 

"2.  THE COURT BELOW ERRED IN REMANDING THE CASE TO THE BOARD IN
ORDER THAT THE TESTIMONY OF CERTAIN WITNESSES MIGHT BE IMPEACHED. 

"3.  THE COURT BELOW ERRED IN FAILING TO ENFORCE THE ORDER OF THE
BOARD." 

FN5  STROMBERG V. CALIFORNIA, 283 U.S. 359, 368; MCCANDLESS V.
FURLAUD, 293 U.S. 67, 71. 

FN6  SEC. 10(B), 49 STAT. 453, 29 U.S.C. SEC. 160(B) PROVIDES THAT
"WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED OR IS ENGAGING IN
ANY SUCH UNFAIR LABOR PRACTICE, THE BOARD  ...  SHALL HAVE POWER TO
ISSUE  ...  A COMPLAINT.  ...  " 

FN7  HEARINGS BEFORE THE COMMITTEE ON EDUCATION AND LABOR, UNITED
STATES SENATE, 74TH CONG., 1ST SESS., ON S. 1958, WASHINGTON,
GOVERNMENT PRINTING OFFICE, PART 3(1935), PP. 439-442. 

FN8  COMPARE THE FOLLOWING STATISTICS ON THE DISPOSITION OF CHARGES
FILED WITH THE BOARD: 

CASES CLOSED BEFORE ISSUANCE OF  PERCENTAGE OF TOTAL CASES ON DOCKET 

COMPLAINT:                         FOR FISCAL YEARS ENDING:

                                $* 1937 $* 1938  * 1939 ** 1941 

BY SETTLEMENT....................    32.1    34.5    27.9    30.3 

BY DISMISSAL.....................    13.5    13.4     7.6     9.7 

BY WITHDRAWAL....................     7.4    17.7    17.8    20.6 

BY OTHER MEANS...................      .2     1.2      .5      .2 

CASES DISPOSED OF AFTER ISSUANCE 

OF COMPLAINT.....................     3.0 2.5     5.5     6.6 

CASES PENDING....................    43.6    30.7    40.7    32.7 

$*  REPORT OF THE NATIONAL LABOR RELATIONS BOARD (1937) 20. 

$*  REPORT OF THE NATIONAL LABOR RELATIONS BOARD (1938) 31. 

*REPORT OF THE NATIONAL LABOR RELATIONS BOARD (1939) 34. 

**REPORT OF THE NATIONAL LABOR RELATIONS BOARD (1941) 26. 

STATISTICS FOR 1940 ARE SET UP ON A SLIGHTLY DIFFERENT BASIS, BUT
INDICATE A TREND LIKE THAT OF THE YEARS SET FORTH ABOVE.  REPORT OF THE
NATIONAL LABOR RELATIONS BOARD (1940) 20. 

FN9  THIS WAS ON NOVEMBER 28, 1938, THE FIRST DAY OF THE HEARING.  ON
DECEMBER 9, 1938, THE LAST DAY OF THE HEARING, CHARLES B. CALVERT,
ENGLISH'S ASSISTANT, TESTIFIED WITHOUT OBJECTION THAT BOYLE'S RESPONSE
WAS "I GUESS THAT IS ABOUT IT." 

FN10  THE BOARD FOUND THAT:  EARL LIVELSBERGER, ONE OF THE COMPANY'S
GENERAL LINE FOREMEN, AND GLENN CARLTON, HIS ASSISTANT, WERE AMONG
THOSE INVITED TO ATTEND A MEETING OF LOCAL B-9 IN APRIL, 1937.  DURING
THE COURSE OF THE MEETING, GUY, LEARNING FROM SEVERAL COMPANY EMPLOYEES
THAT THEY WERE SITTING IN A CAR OUTSIDE THE MEETING HALL, LEFT IT AND
INVITED THEM TO COME TO THE MEETING.  CARLTON DECLINED, STATING THAT HE
COULD GET THE INFORMATION ANYWAY.  CARLTON AND LIVELSBERGER WERE IN A
POSITION TO OBSERVE, AND DID OBSERVE, WHO ATTENDED THE MEETING.  "THE
FACT THAT GUY'S ATTENTION WAS CALLED TO THE PRESENCE OF LIVELSBERGER
AND CARLTON INDICATES THAT THE RESPONDENT'S EMPLOYEES WERE AWARE OF THE
SUPERVISORY SURVEILLANCE OF THEIR MEETING PLACE.   ...  ALTHOUGH
LIVELSBERGER AND CARLTON WERE INVITED TO THE MEETING AND THEREFORE
THEIR ATTENDANCE AT THE MEETING ITSELF WOULD NOT HAVE DISCOURAGED
MEMBERSHIP IN THE BROTHERHOOD, IT IS CLEAR, AND WE FIND THAT THEIR
STATIONING THEMSELVES OUTSIDE THE MEETING PLACE WAS FOR THE PURPOSE OF
SCRUTINIZING THOSE WHO ENTERED AND THEREBY DISCOURAGING EMPLOYEES FROM
ATTENDING SUCH MEETINGS."  IT ALSO FOUND THAT SINCE LIVELSBERGER AND
CARLTON WERE SUPERVISORY EMPLOYEES WHOSE ACTIVITIES WERE ATTRIBUTABLE
TO THE COMPANY, THEIR CONDUCT CONSTITUTED A VIOLATION BY THE COMPANY OF
THE RIGHTS GUARANTEED THE EMPLOYEES IN SEC. 7 OF THE ACT. 

CARLTON AND LIVELSBERGER, CALLED AS WITNESSES FOR THE COMPANY,
ADMITTED BEING ACROSS THE STREET FROM THE HALL AT THE TIME OF THE
MEETING.  LIVELSBERGER TESTIFIED THAT HE HAD BELONGED TO THE
BROTHERHOOD FOR THREE YEARS AFTER 1919, BUT GOT "DISGUSTED" AND DROPPED
OUT; AND THAT HE DID NOT GO INTO THE MEETING BECAUSE "I DIDN'T SEE
ANYONE THERE THAT I CARED MUCH ABOUT ASSOCIATION IN MEMBERSHIP WITH." 
CARLTON TESTIFIED TO THE SAME EFFECT AS TO HIS REASON FOR STAYING OUT. 
THERE WERE ABOUT FOURTEEN MEN AT THIS MEETING, INCLUDING CLAUDE F.
BUCKLEY, DEWEY EDWARDS, GUY, ALBERT OTIS AND LESTER SHIELDS. 

FRANK CLAEYS TESTIFIED THAT HE SAW CARLTON OUTSIDE, AND "WANTED TO
GET OUT OF THERE," BUT THAT HE HAD NEVERTHELESS ATTENDED THE MEETING. 
GUY TESTIFIED THAT BUCKLEY, AND PROBABLY OTHERS, HAD TOLD HIM OF
CARLTON'S PRESENCE OUTSIDE THE HALL, AND THAT WHEN HE WENT OUT AND
INVITED CARLTON TO ATTEND AND LEARN FIRSTHAND WHAT WAS GOING ON, HE WAS
TOLD BY CARLTON THAT HE WOULD GET THE INFORMATION ANYWAY.  RALPH L.
HOBLITZEL WAS THE ONLY ONE TO CORROBORATE THIS STATEMENT, AND CARLTON
DENIED HAVING MADE IT. 

AS TO BUCKLEY, CLAEYS, EDWARDS, HOBLITZEL, OTIS AND SHIELDS, ALL
BOARD WITNESSES AND AFFILIATED WITH LOCAL B-9, SEE THE FOLLOWING
DISCUSSION. 

FN11  WITNESSES PRESENTED BY THE BOARD AND AFFILIATED WITH RESPONDENT
MICHIANA WERE:  GERALDINE CARLSON, RAY M. COLLINS, TAYLOR EDGELL,
GEORGE S. HOLMES, AND NELSON D. LAMBERT. 

FN12  CLAUDE F. BUCKLEY, FRANK CLAEYS, ERNEST DURFEY, DEWEY EDWARDS,
FORREST ELKINS, E. J. ERNST, CHARLES A. HAVLIN, RALPH L. HOBLITZEL,
WALTER HULWICK, RUSSELL H. KIDDER, EUGENE S. LEE, ALBERT OTIS, EARL
SEELEY, AND LESTER SHIELDS.  THREE OTHERS OF THE BOARD'S WITNESSES WERE
AFFILIATED WITH THE C.I.O. 

FN13  OTIS, APRIL, 1935; EDWARDS, MAY, 1935; BUCKLEY AND HULWICK,
JULY, 1935; SHIELDS, AUGUST, 1935; DURFEY, OCTOBER, 1935; SEELEY,
OCTOBER, 1936; ELKINS, MAY, 1937.  KIDDER CAME TO WORK IN SEPTEMBER,
1934. 

FN14  A C.I.O. CHARTER HAD ISSUED TO A GROUP OF COMPANY EMPLOYEES IN
APRIL, 1937.  THIS GROUP MET WITH LITTLE SUCCESS, AND, FAILING TO GET
THE ASSISTANCE OF AN ORGANIZER FROM THE MAIN BODY, THE MEN TRANSFERRED
TO LOCAL B-9 IN OCTOBER, 1937. 

FN15  MARKS TESTIFIED THAT DUES IN THE BROTHERHOOD WERE 1 1/2% OF
AVERAGE EARNINGS, AND INITIATION FEES $10 FOR JOURNEYMEN AND $7 FOR
HELPERS.  DUES FOR MICHIANA WERE 25[ PER MONTH, WITH AN INITIATION FEE
OF $1. 

FN16  ACCORDING TO THE TESTIMONY OF GUY AND MARKS, GRIEVANCES AS TO
WAGES AND WORKING CONDITIONS WERE CONSIDERED BY LOCAL BODIES SET UP
WITHIN B-9, AND THEN REFERRED TO MARKS, WHO WOULD ENDEAVOR TO ADJUST
THEM.  IF HE FAILED, THE MATTER WOULD BE TAKEN UP WITH GUY IN CHICAGO,
WHO, WITH THE EXECUTIVE BOARD AND MEMBERSHIP OF THE MAIN BODY -
VARIOUSLY STATED BY GUY TO NUMBER FROM 2,500 TO 3,500 - WOULD DECIDE
THE MATTER.  LOCAL BODIES APPARENTLY HAD NO POWER TO SETTLE THEIR OWN
GRIEVANCES BY APPROACHING THE MANAGEMENT. 

FN17  TWO EXAMPLES SUFFICE: 

THE BOARD MADE A NUMBER OF FINDINGS WITH RESPECT TO THE ACTIVITY OF
JACK BETLY, A LINEMAN EMPLOYED BY THE COMPANY SINCE 1929, WHO HAD BEEN
PARTICULARLY ACTIVE IN THE ORGANIZATION OF MICHIANA.  IT QUOTED FROM A
PETITION WHICH HE HAD CIRCULATED.  THE PETITION WAS ENTITLED
"S.A.F.E.", AND READ IN THE PART QUOTED BY THE BOARD AS FOLLOWS:  "WE,
THE OLDER MEN IN THE EMPLOY OF THIS COMPANY, BELIEVE THAT WE HAVE MEN
AMONG US THAT CAN INTELLIGENTLY ARBITRATE WITH THE MANAGEMENT WITHOUT
RESORTING TO RADICALISM AND DICTATION OF OUTSIDERS.  OUR MEETING WILL
BE POSTED IN THE NEAR FUTURE."  SOME TIME BEFORE BETLY GOT OUT HIS
PETITION HE HAD BEEN SOLICITED BY OTIS, SHIELDS, AND MARKS TO REJOIN
THE BROTHERHOOD, TO WHICH HE HAD BELONGED IN 1915.  ACCORDING TO HIS
TESTIMONY, THEY HAD CALLED HIM OUT IN THE EVENING TO THEIR CAR, AND HAD
REFUSED TO COME INTO HIS HOME, THUS CAUSING HIM SOME UNEASINESS.  HE
WAS INVITED TO ATTEND, AND DID ATTEND, THE FIRST LOCAL B-9 MEETING.  HE
TESTIFIED FURTHER THAT AT A LATER MEETING HE HAD DIFFICULTIES WITH OTIS
WHO "TOOK A SLOUGH" AT HIM AND BUMPED HIS HEAD AGAINST A WALL, AND THAT
SHORTLY AFTER THIS HE WENT HOME AND GOT OUT HIS PETITION. 

THE BOARD ALSO QUOTED AT SOME LENGTH FROM THE TESTIMONY OF HARTER, A
FOREMAN, AS TO HIS QUESTIONING OF EMPLOYEES WITH RESPECT TO LOCAL B-9
MATTERS, AND FOUND THAT SUCH QUESTIONING CONSTITUTED A VIOLATION BY THE
COMPANY OF THE ACT.  HIS STORY WAS THAT THE MEN HE QUESTIONED WERE
MEMBERS OF HIS LINE CREW WHO HAD BEEN ACTING "TIGHT" AND AS THOUGH THEY
HAD MORE ON THEIR MINDS THAN LINEMEN WORKING ON CHARGED INTER-CITY
POWER LINES SHOULD HAVE; THAT HIS QUESTIONING DIVULGED SIMILAR VISITS
BY SHIELDS AND OTIS UPON TWO OF THE THREE MEN IN HIS CREW; AND THAT
OUTSIDE UNIONS WERE "BOTHERING  ...  I KNOW I WAS WONDERING IF THEY WAS
GOING TO MOVE THEIR TRUNKS IN AND PUT UP AT MY PLACE, OR WHETHER I
WOULD HAVE TO MOVE OUT AND LET THEM IN."    FN18  FACTS APPEARING IN
THE PETITION TO THE COURT NOT CONTAINED IN THE PETITION TO THE BOARD
WERE:  THE CONVICTION OF MEN WHO HAD EARLIER CONFESSED, AND OF MARKS,
WHO HAD NOT CONFESSED; AND THE EFFORTS BY THE TRIAL EXAMINER DURING THE
HEARING, AND BY OTHER ATTORNEYS OR OFFICIALS OF THE BOARD AFTER THE
HEARING, TO GET THE COMPANY TO CONSENT TO DISESTABLISHMENT OF MICHIANA
DESPITE CHARGES THAT THE LOCAL HAD CAUSED THE DYNAMITINGS. 

IT ALSO APPEARED FROM THE BOARD'S RESPONSE TO THE PETITION TO THE
COURT THAT AT LEAST ONE OF THE NON-EMPLOYEE DYNAMITERS HIRED BY MARKS
WAS ALSO A MEMBER OF THE BROTHERHOOD.    FN19  THE COMPLAINT WAS SERVED
NOVEMBER 15, 1938 AND THE HEARING SET FOR NOVEMBER 28.  A CONTINUANCE
WAS REQUESTED BY THE COMPANY ON THE GROUND OF ILLNESS OF ITS ATTORNEY,
BUT WAS REFUSED.  THE BOARD PRESENTED ITS EVIDENCE IN SIX DAYS, THE
COMPANY IN THREE.  THE HEARINGS CLOSED ON DECEMBER 9, 1938, AND THE
TRIAL EXAMINER'S INTERMEDIATE REPORT WAS FILED ON JULY 27, 1939 - A
LITTLE MORE THAN SEVEN MONTHS LATER.  THE COMPANY'S EXCEPTIONS WERE
FILED SEPTEMBER 1, 1939, AND THE BOARD SET THEM FOR HEARING ON NOVEMBER
9, 1939.  THE BOARD HAD NOT DECIDED THE CASE WHEN, ON FEBRUARY 19,
1940, THE COMPANY PETITIONED IT FOR A REHEARING WITH REGARD TO THE
EVIDENCE OF THE DEPREDATIONS OBTAINED BY THE ARREST OF ALL, AND THE
CONFESSIONS OF SOME, OF THE PARTICIPANTS, ALL OCCURRING SINCE FEBRUARY
1, 1940.  NINE DAYS LATER THE BOARD DECIDED THE CASE.  ON DECEMBER 13,
1940, THE BOARD PETITIONED THE COURT BELOW FOR ENFORCEMENT OF ITS
ORDER, AND THE COURT RENDERED ITS DECISION ON DECEMBER 12, 1941.  ON
FEBRUARY 19, 1942, AFTER THE TIME FOR FILING A PETITION FOR REHEARING
HAD EXPIRED, THE BOARD MOVED FOR LEAVE TO FILE IT OUT OF TIME.  THE
COURT DENIED THE MOTION, AND ON MARCH 9, 1942, THREE DAYS BEFORE THE
TIME TO PETITION THIS COURT FOR A WRIT FOR CERTIORARI HAD EXPIRED, THE
BOARD ASKED AND OBTAINED AN EXTENSION OF TIME TO APRIL 11, 1942, IN
WHICH TO FILE ITS PETITION.  THE PETITION WAS FILED ON THAT DATE,
GRANTED ON MAY 25, AND ARGUMENT IN THIS COURT WAS COMPLETED NOVEMBER
16, 1942. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE
MURPHY CONCUR, DISSENTING. 

A DESIRE TO PUNISH DYNAMITERS DOES NOT JUSTIFY A FAILURE TO PROTECT
RESPONDENT'S EMPLOYEES, INNOCENT OF WRONG-DOING, IN THEIR FREEDOM
EITHER TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING OR TO BE REPRESENTED BY NO ONE AT ALL.  WITHOUT RELYING IN THE
SLIGHTEST DEGREE ON THE EVIDENCE OF PERSONS CONVICTED OF OR CHARGED
WITH DYNAMITING, THE BOARD FOUND THE ASSOCIATION TO BE COMPANY
DOMINATED.  ITS ORDER GAVE NO BENEFIT TO ANYONE EVEN REMOTELY SUSPECTED
OF COMPLICITY IN THE CRIMES CHARGED.  INSTEAD IT CAREFULLY ELIMINATED
SUCH INDIVIDUALS, AND THE UNION, FROM THE SCOPE OF ITS AWARD AND GAVE
NO CREDENCE TO THE SUSPECT WITNESSES.  THE SOLE ISSUE FOR THE COURTS TO
DETERMINE IS WHETHER THERE IS, IN THE TESTIMONY OF WITNESSES UNTAINTED
BY ANY SUSPICION, SUFFICIENT EVIDENCE TO SUPPORT THE BOARD FINDINGS
THAT THE EMPLOYER HAS (1) SET UP A COMPANY-DOMINATED UNION CONTRARY TO
SEC. 8(2) OF THE ACT, AND (2) INTERFERED WITH, RESTRAINED AND COERCED
ITS EMPLOYEES IN EXERCISING THEIR RIGHT TO BELONG TO THE UNION OF THEIR
CHOICE CONTRARY TO SEC. 8(1).  THE BOARD ORDER, REQUIRING
DISESTABLISHMENT OF THE DOMINATED UNION AND CESSATION OF INTERFERENCE,
CONTEMPLATES ONLY THAT THIS COMPANY SHALL NOT INTIMIDATE OR COERCE ITS
EMPLOYEES - THAT IT SHALL LEAVE THEM FREE.  THIS FREEDOM IS THEIR LEGAL
RIGHT; AND CRIME BY SOME OF THEM CANNOT JUSTIFY THE COMPANY IN
DESTROYING THE FREEDOM OF ALL, OR EVEN A FEW OF THEM.  UNDER OUR
GOVERNMENT GUILT IS PERSONAL; IT CANNOT, OR AT LEAST SHOULD NOT,
ATTAINT THE INNOCENT; IT CANNOT, OR SHOULD NOT PROVIDE AN EXCUSE FOR
ONE INJURED BY IT TO INVADE THE LIBERTY OF OTHERS.  IN SHORT, THE
CRIMES OF SOME OF THESE EMPLOYEES, OR OF THE NON-EMPLOYEE MEMBERS OF A
UNION, CANNOT HAVE RELEVANCE TO THE TWO ISSUES THE BOARD DECIDED. 

I AGREE WITH THE COURT THAT ALLEGED ERRORS IN THE ADMINISTRATION OF
THE HEARING BY THE TRIAL EXAMINER OR BY THE BOARD OFFICIALS ARE NOT
PROPERLY BEFORE US.  SUCH QUESTIONS CAN BE CONSIDERED WHEN THE CASE IS
PROPERLY REVIEWED BY THE COURT BELOW.  HAVING AGREED WITH THE COURT
THAT THIS QUESTION IS NOW IRRELEVANT, I CANNOT JOIN IN DISCUSSING, AS
THE COURT DOES, THE PROPRIETY OF ALLEGED STATEMENTS TO ONE BOYLE, AND
RESERVE ALL OPINION ON THIS PHASE OF THE CASE. 

IF THE EVIDENCE RESPONDENT ASKS TO OFFER HAS ANY RELEVANCE WHATEVER,
IT MUST BE FOR ONE OF TWO REASONS:  THAT (A) THE UNION'S PURPOSES IN
FILING THE COMPLAINT WERE NOT SALUTARY AND THAT THE CHARACTER OF ITS
ACTIVITIES WAS SUCH THAT THE BOARD MIGHT UPON HEARING THE PROFFERED
EVIDENCE DECLINE TO EXERCISE ANY JURISDICTION TO PROTECT THE RIGHTS OF
EMPLOYEES, EVEN THE INNOCENT; OR (B) THAT THE BOARD'S WITNESSES WERE OF
SUCH CHARACTER AS TO BE UNWORTHY OF BELIEF. 

THE FIRST OF THESE GROUNDS SURELY HAS NO REAL MERIT.  THERE IS OF
COURSE NO REASON WHY A MERITORIOUS COMPLAINT SHOULD BE DISMISSED MERELY
BECAUSE OF THE BAD CHARACTER OF ONE WHO MAKES THE CHARGE.  THE ILL
CHARACTER OF A COMPLAINANT, OR OF WITNESSES, PROVIDES NO EXCUSE FOR
LEAVING THE PUBLIC INTEREST UNPROTECTED.  A WITNESS CAN BE IMPEACHED IN
A PROPER MANNER; BUT THE OPINION HERE SEEMS TO SUGGEST THAT
ADMINISTRATIVE AGENCIES SHOULD HEREAFTER SPEND A LARGE PART OF THEIR
TIME IN TRYING COMPLAINANTS INSTEAD OF THOSE CHARGED WITH VIOLATING THE
LAW.  NOW, FOUR YEARS AFTER THIS PROCEEDING BEGAN, IT IS BROADLY HINTED
THAT THE BOARD SHOULD PERMIT THE EMPLOYER TO TRY THE INFORMER AND IT IS
CLEARLY IMPLIED THAT IF THE COMPLAINING UNION IS PROVED EVIL, THE
EMPLOYEES SHOULD NOT BE FREE OF COMPANY-DOMINATION NO MATTER HOW
EXTREME IT MAY BE.  IF THE PRACTICE HERE SUGGESTED IS NOT SOON
REPUDIATED, A NEW METHOD WILL HAVE BEEN PROVIDED IN WHICH TO PARALYZE
ADMINISTRATIVE AGENCIES BY DISCURSIVE DELAY. 

AS HAS BEEN NOTED, THE BOARD HAS CAREFULLY ELIMINATED FROM ITS ORDER
ALL PROVISIONS WHICH WOULD SPECIFICALLY BENEFIT THE UNION, AND I SEE NO
REASON FOR ORDERING IT TO TAKE NEW EVIDENCE OF THE CHARACTER OF A UNION
TO WHICH IT HAS GRANTED NOTHING AT ALL.  DESPITE THIS THERE IS A
PREMISE, VAGUELY STATED BUT NONETHELESS PERMEATING THE OPINION OF THE
COURT, THAT EVIDENCE OF THE BAD CHARACTER OF THE UNION WOULD REQUIRE
THE BOARD TO TAKE SOME OTHER ACTION; THAT SOMEHOW, AS A PRACTICAL
MATTER, THE BOARD, DESPITE ITS CAREFUL EFFORT TO AVOID SUCH A RESULT,
HAS AIDED THE UNION WHICH BROUGHT THE CHARGES.  BUT IF THE DESIRE BE TO
PUNISH THE UNION, I CANNOT AGREE THAT THIS SHOULD BE DONE BY COMPELLING
INNOCENT EMPLOYEES TO REMAIN IN A DOMINATED ASSOCIATION.  IF THE
BOARD'S ORDER REQUIRING THE DISESTABLISHMENT OF THE ASSOCIATION IS
FOUND TO BE SUPPORTED BY EVIDENCE, THE EMPLOYEES MAY FORM A GENUINE
INDEPENDENT UNION, THEY MAY JOIN SOME OTHER ORGANIZATION, OR THEY MAY
CHOOSE TO REMAIN UNORGANIZED.  A REQUIREMENT THAT, FOR THEIR OWN GOOD,
THEY MUST REMAIN IN A COMPANY-DOMINATED UNION TO AVOID ANY POSSIBILITY
OF THEIR AIDING THE WRONGDOERS DENIES THEM THE FREEDOM OF CHOICE WHICH
THE ACT PRESERVES.  WHATEVER CHARACTER THE UNION MAY BE FOUND TO HAVE,
THE BOARD'S PROTECTION TO RESPONDENT'S EMPLOYEES SHOULD NOT BE
DISTURBED BECAUSE OF IT. 

THE MOTION FOR PERMISSION TO OFFER NEW EVIDENCE ATTACKING THE
CREDIBILITY OF WITNESSES RAISES A DIFFERENT QUESTION - ONE GOING TO THE
QUALITY OF EVIDENCE ON WHICH A CONCLUSION IS TO BE REACHED.  THE BOARD,
AFTER FULL CONSIDERATION, DENIED THE MOTION BECAUSE IT FOUND THAT THE
PROFFERED EVIDENCE EVEN IF TRUE HAD NO RELATION TO THE ISSUE OF COMPANY
COERCION OF ITS EMPLOYEES.  WHETHER A CASE SHALL BE REOPENED AFTER THE
EVIDENCE IS CLOSED, IS, IN COURTS, ORDINARILY A MATTER OF DISCRETION. 
I THINK THE BOARD'S ACTION IN THIS PROCEEDING CAN NOT BE SAID TO BE AN
UNFAIR EXERCISE OF DISCRETION AND THAT IN ANY EVENT IT WAS CORRECT IN
HOLDING THE EVIDENCE IRRELEVANT TO THE LIMITED ISSUES IT DECIDED. 

IT MUST BE REMEMBERED THAT THE FUNDAMENTAL ISSUE WHICH THE BOARD
DECIDED HERE IS WHETHER THE ASSOCIATION IS COMPANY-DOMINATED.  WE ARE
TOLD THAT TESTIMONY CONCERNING THE MISDEEDS OF THE ELECTRICAL WORKERS
ARE MATERIAL TO THIS CONCLUSION BECAUSE THE BOARD RELIED ON WITNESSES
MARKS, FREEMAN, AND GUY; BECAUSE THE BOARD "MUST HAVE RELIED" ON OTHER
UNION WITNESSES; BECAUSE THE BOARD'S DECISION MAY DRIVE THE EMPLOYEES
INTO THE OFFENDING UNION; BECAUSE AN ASSOCIATION OFFICIAL WAS ASKED
HYPOTHETICAL QUESTIONS ABOUT BOMBING; AND BECAUSE COMPANY WITNESSES
MIGHT HAVE BEEN MORE CREDIBLE IF THE FULL FACTS OF VIOLENCE HAD BEEN
KNOWN. 

TO SUPPORT ITS VIEW THAT THE BOARD MIGHT HAVE DISBELIEVED CERTAIN OF
ITS WITNESSES HAD THE FULL FACTS BEEN KNOWN, THE COURT HAS GONE NOT
ONLY TO THE TESTIMONY WHICH HAS BEEN PRINTED BY THE BOARD AND THE
COMPANY AND OFFERED BY THE BOARD AS THE BASIS OF ITS CASE, BUT HAS
SEARCHED EVIDENCE TO WHICH THE BOARD HAS MADE NO REFERENCE IN ITS
FINDINGS AND WHICH IT HAS NOT OFFERED AS OF ANY CREDIBILITY AT ALL. 
EVIDENTLY THE BOARD IS TO BE REQUIRED TO RE-EXAMINE THAT EVIDENCE IN
WHICH IT HAS ALREADY, BY REJECTION OF IT, EXPRESSED DISBELIEF.  I THINK
NO POSSIBLE GOOD CAN COME FROM RECONSIDERING EVIDENCE ONCE REJECTED FOR
THE PURPOSE OF RE-REJECTING IT. 

THE BOARD CALLED SIXTEEN UNION WITNESSES.  THE THREE MOST UNDER
SUSPICION FOR DYNAMITING WERE GUY, MARKS, AND FREEMAN.  GUY'S
TESTIMONY, AS SUBMITTED BY THE BOARD IN SUPPORT OF ITS FINDING, IS THAT
TWO COMPANY SUPERVISORS KEPT A UNION MEETING UNDER SURVEILLANCE, A FACT
CONCEDED BY THE SUPERVISORS.  MARKS TESTIFIED THAT THE COMPANY DID NOT
INTERFERE WITH UNION ORGANIZATION, AND FREEMAN TESTIFIED THAT HOLMES,
PRESIDENT OF THE ASSOCIATION, WAS RESPECTED BY HIS FELLOW EMPLOYEES.  A
MORE INNOCUOUS OR COLORLESS COLLECTION OF EVIDENCE CAN SCARCELY BE
IMAGINED.  THE TESTIMONY OF SIX OTHER UNION WITNESSES, AS REFLECTED BY
THE PRINTED RECORD, IS EQUALLY TRIFLING, WHILE THAT OF THE OTHER SEVEN,
WHICH FILLS ABOUT FOUR PER CENT OF THE PRINTED RECORD, WAS NOT RELIED
ON BY THE BOARD IN ITS FINDINGS. 

THE ULTIMATE BOARD HOLDING BEFORE THE CIRCUIT COURT OF APPEALS FOR
REVIEW IS THAT THE ASSOCIATION WAS COMPANY-DOMINATED.  THIS HOLDING
RESTS ALMOST EXCLUSIVELY ON THE TESTIMONY OF COMPANY WITNESSES OR
WITNESSES AFFILIATED WITH THE ASSOCIATION.  THERE IS NOT EVEN A HINT
THAT THESE WITNESSES WERE INTIMIDATED OR INTERFERED WITH IN ANY WAY, OR
THAT THEY TOLD ANYTHING BUT THE TRUTH.  IF IT BE ASSUMED THAT GUY,
FREEMAN, AND MARKS ARE WHOLLY UNWORTHY OF BELIEF, THIS BASIC TESTIMONY
GIVEN BY COMPANY WITNESSES WOULD STILL BE UNAFFECTED.  THE SUGGESTION
MADE BY THE COURT, NOT RAISED BY THE COMPANY EITHER IN ITS PETITION FOR
REHEARING TO THE BOARD OR IN ITS MOTION FOR REMAND IN THE CIRCUIT COURT
OF APPEALS, THAT EXAMINATION INTO THE DYNAMITING WILL REFLECT ON THE
ATTITUDE OF THE EMPLOYEES TOWARD THE UNION DURING THE EARLIER
ORGANIZATIONAL PERIOD, THEREFORE MISSES THE HEART OF THE CASE.  IF THE
COMPANY'S SUPERVISORY REPRESENTATIVES DID ORGANIZE AND DOMINATE THE
ASSOCIATION, THE ASSOCIATION IS COMPANY-DOMINATED AND THE BOARD'S ORDER
SHOULD BE UPHELD, I.A. OF M. V. LABOR BOARD, 311 U.S. 72, 79, 80; IF
THEY DID NOT, THE BOARD'S ORDER SHOULD NOT BE ENFORCED.  THE CHARACTER
OF ORGANIZERS OF A SEPARATE AND DISTINCT UNION CONTRIBUTES NOTHING TO
THE ISSUE OF COMPANY CONDUCT. 

THE LAST SUGGESTION AS TO THE MATERIALITY OF FURTHER INVESTIGATION
INTO THE DYNAMITING IS THAT FOR SOME REASON THE TRIAL EXAMINER ASKED
HOLMES QUESTIONS CONCERNING HIS VIEW ON VIOLENCE IN LABOR DISPUTES. 
HOLMES EXPRESSED A PROPER RESPECT FOR LAW AND ORDER, AND IT IS
INCREDIBLE THAT A NEW HEARING WOULD EITHER CAUSE HIM TO ALTER HIS VIEW
IN THIS REGARD OR CHANGE THE BOARD'S RESPECT FOR HIS CONCLUSION. 

IT WILL NOT SEEM ODD THAT SO MUCH OF THE EVIDENCE ORIGINALLY
INTRODUCED BY THE BOARD WAS EVENTUALLY DEEMED IRRELEVANT TO THE FINAL
DECISION WHEN IT IS REALIZED THAT THE ORIGINAL CHARGE AGAINST THE
RESPONDENT WAS MUCH BROADER THAN THE FINAL HOLDING.  THIS EVIDENCE,
DIRECTED TO THE SUPPORT OF THESE PERIPHERAL CHARGES, LOST ALL
CONSEQUENCE FOR THIS CASE WHEN THE BOARD DECLINED TO BELIEVE THE
CHARGES THEMSELVES.  FOR EXAMPLE, THE ORIGINAL COMPLAINT ALLEGED THAT
ONE ELKINS WAS WRONGFULLY DISCHARGED.  SINCE BOTH THE TRIAL EXAMINER
AND THE BOARD FOUND THE CHARGE UNSUPPORTED, ELKINS' TESTIMONY IN THIS
RESPECT AND ALL THAT SUPPORTS IT DROPS COMPLETELY FROM THE CASE.  THE
OPINION OF THE COURT APPEARS TO REQUIRE RE-ASSESSMENT OF SUCH SURPLUS
TESTIMONY OFFERED IN BEHALF OF CHARGES CONCLUDED TO BE UNFOUNDED. 

OF COURSE NO COURT SHOULD SHELTER DYNAMITERS FROM EXPOSURE AND
INQUIRY.  BUT COMPELLING THE BOARD TO DIGRESS FROM THE ADJUDICATION OF
A LABOR DISPUTE IN WHICH SUCH DYNAMITING HAS NO PART INTO A PURSUIT OF
THE GUILTY, PUNISHES THE INNOCENT EMPLOYEES OF RESPONDENT RATHER THAN
THE EVILDOERS THEMSELVES.  THE LABOR BOARD IS NO FAIR SUBSTITUTE FOR A
GRAND JURY OR A CRIMINAL COURT. 

IF THE BOARD HAD DENIED RESPONDENTS AN OPPORTUNITY TO OFFER NEWLY
DISCOVERED EVIDENCE WHICH TENDED TO SHOW THAT WITNESSES TO MATERIAL
FACTS RELIED ON BY THE BOARD HAD SINCE THE HEARING BEEN CONVICTED OF
SERIOUS CRIMES AFFECTING THEIR CREDIBILITY, I WOULD NOT OBJECT TO
SENDING THE MATTER BACK TO THE BOARD.  BUT ANALYSIS OF THE RECORD
DEMONSTRATES THAT NO SUCH THING OCCURRED.  I THINK WE SHOULD SEND THE
CASE BACK TO THE CIRCUIT COURT OF APPEALS FOR THE NORMAL REVIEW
PROCEDURE. 
..END :



NATURAL MILK ASSN. V. SAN FRANCISCO, 317 U.S. 423 


NO. 385.  ARGUED DECEMBER 16, 17, 1942.  - DECIDED JANUARY 11, 1943.  -
20 CAL.2D 101, 124 P.2D 25, VACATED AND REMANDED. 


WHERE A FEDERAL QUESTION SOUGHT TO BE REVIEWED ON CERTIORARI BECOMES
MOOT BY REASON OF A CHANGE IN THE FACTUAL SITUATION, WHICH OCCURRED
AFTER THE TRIAL AND WHICH WAS NOT NOTICED BY THE COURT BELOW, THE
PROPER PRACTICE IS TO VACATE THE JUDGMENT, WITHOUT COSTS TO EITHER
PARTY IN THIS COURT, AND REMAND THE CAUSE TO THE COURT BELOW FOR SUCH
FURTHER PROCEEDINGS AS IT MAY DEEM PROPER.  P. 424. 

NATURAL MILK PRODUCERS ASSOCIATION ET AL. V. CITY AND COUNTY OF SAN
FRANCISCO ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

PER CURIAM. 

IN THIS CASE APPELLANTS CONTEND THAT THE SAN FRANCISCO MILK ORDINANCE
VIOLATES THE FOURTEENTH AMENDMENT BECAUSE IT REQUIRES NON-PASTEURIZED
RAW MILK SOLD IN SAN FRANCISCO TO BE CERTIFIED BY, AND TO CONFORM TO
STANDARDS PRESCRIBED BY, THE MILK COMMISSION OF THE SAN FRANCISCO
MEDICAL SOCIETY, INSTEAD OF BY A PUBLIC BOARD OR OFFICER, WHILE AT THE
SAME TIME PROHIBITING THE SALE OF ALL OTHER NON-PASTEURIZED MILK,
INCLUDING "GUARANTEED RAW MILK" WHICH APPELLANTS ALLEGE IS THE SAME AS
CERTIFIED RAW MILK.  SUBSEQUENT TO THE TRIAL OF THE CASE, THE MILK
COMMISSION OF THE SAN FRANCISCO MEDICAL SOCIETY DETERMINED THAT NON
PASTEURIZED MILK COULD NOT BE CERTIFIED BY IT AS FREE FROM HARMFUL
BACTERIA, AND PROMULGATED AN ORDER ACCORDINGLY, EFFECTIVE JANUARY 15,
1939.  THIS FACT, WHICH APPARENTLY WAS NOT CALLED TO THE ATTENTION OF
THE SUPREME COURT OF CALIFORNIA, RENDERS MOOT THE FEDERAL QUESTIONS
RAISED BY APPELLANTS, SINCE ALL MILK SOLD IN SAN FRANCISCO, NOT
CERTIFIED BY THE MILK COMMISSION OF THE MEDICAL SOCIETY, IS REQUIRED BY
THE ORDINANCE TO BE PASTEURIZED, AND SINCE APPELLANTS DO NOT BY THIS
SUIT CHALLENGE THE VALIDITY UNDER THE FOURTEENTH AMENDMENT OF THE
PASTEURIZATION REQUIREMENT.  IN ORDER THAT THE STATE COURT MAY MAKE
PROPER DISPOSITION OF THE CASE IN THE LIGHT OF THE FACT THAT THE
FEDERAL QUESTIONS CANNOT BE DECIDED HERE, WE VACATE THE JUDGMENT,
WITHOUT COSTS TO EITHER PARTY IN THIS COURT, AND REMAND THE CAUSE TO
THE SUPREME COURT OF CALIFORNIA FOR SUCH FURTHER PROCEEDINGS AS IT MAY
DEEM APPROPRIATE.  FLORIDA V. KNOTT, 308 U.S. 507; WASHINGTON EX REL.
COLUMBIA BROADCASTING CO. V. SUPERIOR COURT, 310 U.S. 613; MISSOURI EX
REL. WABASH RY. CO. V. PUBLIC SERVICE COMM'N, 273 U.S. 126.  SO
ORDERED. 
..END :






UNITED STATES V. MONIA, 317 U.S. 424 


NO. 248.  ARGUED DECEMBER 16, 1942.  - DECIDED JANUARY 11, 1943.  -
AFFIRMED. 


ONE WHO, IN OBEDIENCE TO A SUBPOENA, APPEARS BEFORE A GRAND JURY
INQUIRING INTO AN ALLEGED VIOLATION OF THE SHERMAN ACT, AND GIVES
TESTIMONY UNDER OATH SUBSTANTIALLY TOUCHING THE ALLEGED OFFENSE,
OBTAINS IMMUNITY FROM PROSECUTION FOR THAT OFFENSE, PURSUANT TO THE
TERMS OF THE SHERMAN ACT, AS AMENDED, ALTHOUGH HE DOES NOT CLAIM HIS
PRIVILEGE AGAINST SELF-INCRIMINATION.  P. 430. 

UNITED STATES V. MONIA ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT OVERRULING
DEMURRERS TO SPECIAL PLEAS IN BAR FILED BY THE APPELLEES TO AN
INDICTMENT FOR VIOLATION OF THE SHERMAN ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS A DIRECT APPEAL FROM THE DISTRICT COURT FOR NORTHERN ILLINOIS
PROSECUTED PURSUANT TO THE CRIMINAL APPEALS ACT.  FN1  IT PRESENTS A
QUESTION UPON WHICH THE LOWER FEDERAL COURTS HAVE SHARPLY DIVIDED.  FN2
THE QUESTION IS WHETHER ONE WHO, IN OBEDIENCE TO A SUBPOENA, APPEARS
BEFORE A GRAND JURY INQUIRING INTO AN ALLEGED VIOLATION OF THE SHERMAN
ACT, AND GIVES TESTIMONY UNDER OATH SUBSTANTIALLY TOUCHING THE ALLEGED
OFFENSE, OBTAINS IMMUNITY FROM PROSECUTION FOR THAT OFFENSE, PURSUANT
TO THE TERMS OF THE SHERMAN ACT, ALTHOUGH HE DOES NOT CLAIM HIS
PRIVILEGE AGAINST SELF-INCRIMINATION. 

THE SHERMAN ACT  FN3  PROVIDES IN PART: 

"  ...  NO PERSON SHALL BE PROSECUTED OR BE SUBJECTED TO ANY PENALTY
OR FORFEITURE FOR OR ON ACCOUNT OF ANY TRANSACTION, MATTER, OR THING
CONCERNING WHICH HE MAY TESTIFY OR PRODUCE EVIDENCE, DOCUMENTARY OR
OTHERWISE, IN ANY PROCEEDING, SUIT, OR PROSECUTION UNDER SAID ACTS (THE
INTERSTATE COMMERCE ACT, THE SHERMAN ANTITRUST ACT, AND OTHER ACTS);
PROVIDED FURTHER, THAT NO PERSON SO TESTIFYING SHALL BE EXEMPT FROM
PROSECUTION OR PUNISHMENT FOR PERJURY COMMITTED IN SO TESTIFYING." 

THAT STATUTE WAS SUPPLEMENTED BY THE ACT OF JUNE 30, 1906,  FN4
WHICH, SO FAR AS MATERIAL, IS 

"  ...  UNDER THE IMMUNITY PROVISIONS (OF THE ABOVE ACT AND OTHERS)
IMMUNITY SHALL EXTEND ONLY TO A NATURAL PERSON WHO, IN OBEDIENCE TO A
SUBPOENA, GIVES TESTIMONY UNDER OATH OR PRODUCES EVIDENCE, DOCUMENTARY
OR OTHERWISE, UNDER OATH." 

AN INDICTMENT WAS RETURNED CHARGING CORPORATIONS AND INDIVIDUALS,
INCLUDING THE TWO APPELLEES, WITH CONSPIRACY TO FIX PRICES IN VIOLATION
OF THE SHERMAN ACT.  THE APPELLEES FILED SPECIAL PLEAS IN BAR, EACH
ALLEGING THAT, IN OBEDIENCE TO A SUBPOENA DULY SERVED, HE APPEARED AS A
WITNESS FOR THE UNITED STATES BEFORE THE GRAND JURY INQUIRING
RESPECTING THE MATTERS CHARGED IN THE INDICTMENT, AND GAVE TESTIMONY
SUBSTANTIALLY CONNECTED WITH THE TRANSACTIONS COVERED BY THE
INDICTMENT.  NO QUESTION IS MADE BUT THAT THE TESTIMONY SO GIVEN DID
SUBSTANTIALLY RELATE TO THE TRANSACTIONS WHICH WERE THE SUBJECT OF THE
INDICTMENT. 

THE UNITED STATES DEMURRED TO THE PLEAS AS INSUFFICIENT, SINCE
NEITHER ALLEGED THAT THE WITNESS ASSERTED ANY CLAIM OF PRIVILEGE
AGAINST SELF-INCRIMINATION AND THEREFORE NEITHER THE FIFTH AMENDMENT OF
THE CONSTITUTION NOR THE IMMUNITY STATUTE COULD AVAIL HIM. 

THE DISTRICT COURT OVERRULED THE DEMURRERS ON THE GROUND THAT THE
PLAIN MANDATE OF THE STATUTE PRECLUDED PROSECUTION OF THE APPELLEES
WHETHER THEY HAD CLAIMED THE PRIVILEGE OR NOT.  WE HOLD THAT THE
DECISION WAS RIGHT. 

BEYOND DISPUTE THE APPELLEES WERE ENTITLED TO IMMUNITY FROM
PROSECUTION IF THE STATUTE IS TO BE GIVEN EFFECT AS IT IS WRITTEN.  WE
ARE ASKED, HOWEVER, TO READ INTO IT A QUALIFICATION TO THE EFFECT THAT
IMMUNITY IS NOT OBTAINED UNLESS THE PRIVILEGE AGAINST SELF
INCRIMINATION IS CLAIMED.  INASMUCH AS THE STATUTE IS ADDRESSED TO THIS
PRIVILEGE, AND THE PRIVILEGE IS ACCORDED BY THE FIFTH AMENDMENT, IT IS
SAID THAT IF IMMUNITY IS OFFERED AS A SUBSTITUTE FOR THE PRIVILEGE, THE
IMMUNITY, LIKE THE PRIVILEGE, OUGHT TO BE CLAIMED; THAT THUS THE
STATUTE AND THE FIFTH AMENDMENT, WHICH ARE PARI MATERIA, WILL BE GIVEN
A CONSISTENT CONSTRUCTION. 

IN THE SECOND PLACE, IT IS URGED THAT QUALIFICATION OF THE FORTHRIGHT
TERMS OF THE STATUTE IS NECESSARY IN ORDER TO AVOID AN UNREASONABLE,
UNFAIR, AND UNINTENDED RESULT.  THE ARGUMENT RUNS THAT IF THE STATUTE
IS CONSTRUED AUTOMATICALLY TO GRANT IMMUNITY WITHOUT A CLAIM OF
PRIVILEGE, THE PROSECUTOR IS AT A DISADVANTAGE, SINCE HE DOES NOT KNOW
WHETHER, OR TO WHAT EXTENT, A WITNESS MAY HAVE PARTICIPATED IN A CRIME;
AND SO RUNS THE RISK OF UNINTENTIONALLY AFFORDING IMMUNITY.  ON THE
OTHER HAND, SO IT IS SAID, THE WITNESS HAS FULL KNOWLEDGE AS TO THE
NATURE OF HIS OWN CONDUCT, AND AS TO HIS POSSIBLE INCRIMINATION BY
TESTIMONY, AND IT IS NOT UNFAIR TO REQUIRE HIM TO CLAIM HIS PRIVILEGE
AND SO PUT THE PROSECUTOR ON NOTICE THAT, IF HE INSISTS UPON THE
TESTIMONY, THE WITNESS WILL OBTAIN IMMUNITY. 

THE WELL-UNDERSTOOD COURSE OF LEGISLATION BEFORE AND AFTER THE
ADOPTION OF THE STATUTE INVOLVED, AND THE LEGISLATIVE HISTORY, COMPEL
REJECTION OF THE CONTENTIONS. 

THE FIFTH AMENDMENT DECLARES THAT "NO PERSON  ...  SHALL BE COMPELLED
IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  AN
INVESTIGATION BY A GRAND JURY IS A CRIMINAL CASE.  FN5  THE AMENDMENT
SPEAKS OF COMPULSION.  IT DOES NOT PRECLUDE A WITNESS FROM TESTIFYING
VOLUNTARILY IN MATTERS WHICH MAY INCRIMINATE HIM.  IF, THEREFORE, HE
DESIRES THE PROTECTION OF THE PRIVILEGE, HE MUST CLAIM IT OR HE WILL
NOT BE CONSIDERED TO HAVE BEEN "COMPELLED" WITHIN THE MEANING OF THE
AMENDMENT.  FN6 

MORE THAN SEVENTY YEARS AGO CONGRESS WAS ADVISED THAT, IN SUITS
PROSECUTED BY THE UNITED STATES, WHERE EVIDENCE HAD BEEN SOUGHT FROM
CERTAIN PERSONS, TO BE USED BY THE GOVERNMENT, THEY HAD INTERPOSED A
CLAIM OF PRIVILEGE WHICH HAD BEEN SUSTAINED BY THE COURTS.  FN7  IN
ORDER TO FORESTALL THE OBSTRUCTION AND DELAY INCIDENT TO JUDICIAL
DETERMINATION OF THE VALIDITY OF THE WITNESS' CLAIM, AND IN ORDER TO
OBTAIN NECESSARY EVIDENCE, EVEN THOUGH THE CLAIM WERE WELL FOUNDED,
CONGRESS ADOPTED THE ACT OF FEBRUARY 25, 1868,  FN8  WHICH BECAME R.S.
860.  THIS ACT APPLIED TO ALL JUDICIAL PROCEEDINGS AND PROVIDED, IN
EFFECT, THAT NO EVIDENCE OBTAINED FROM A WITNESS COULD BE USED AGAINST
HIM IN A CRIMINAL PROCEEDING. 

THIS COURT, IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, HELD THE ACT
UNCONSTITUTIONAL BECAUSE, WHILE IT PREVENTED THE USE OF THE EVIDENCE
AGAINST THE WITNESS, IT DID NOT PRECLUDE HIS PROSECUTION AS A RESULT OF
INFORMATION GAINED FROM HIS TESTIMONY.  THE COURT INDICATED CLEARLY
THAT NOTHING SHORT OF ABSOLUTE IMMUNITY WOULD JUSTIFY COMPELLING THE
WITNESS TO TESTIFY IF HE CLAIMED HIS PRIVILEGE. 

THE ORIGINAL INTERSTATE COMMERCE ACT  FN9  CONTAINED AN IMMUNITY
PROVISION IN THE FORM HELD INVALID IN THE COUNSELMAN CASE.  TO MEET THE
DECISION IN THAT CASE, CONGRESS PASSED THE ACT OF FEBRUARY 11, 1893,
FN10  WHICH APPLIED ONLY TO PROCEEDINGS UNDER THE INTERSTATE COMMERCE
ACT.  THIS STATUTE, HOWEVER, BECAME THE MODEL FOR IMMUNITY PROVISIONS
WHICH WERE ENACTED AT VARIOUS TIMES UP TO 1933, INCLUDING THE ACT OF
FEBRUARY 25, 1903, SUPRA, WITH WHICH WE ARE HERE CONCERNED.  THIS COURT
SUSTAINED THE CONSTITUTIONALITY OF THESE ACTS.  FN11 

IN 1906 THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
HELD, IN UNITED STATES V. ARMOUR & CO., 142 F. 808, THAT A VOLUNTARY
APPEARANCE, AND THE FURNISHING OF TESTIMONY AND INFORMATION WITHOUT
SUBPOENA, OPERATED TO CONFER IMMUNITY FROM PROSECUTION UNDER THE
SHERMAN ACT.  THE COURT HELD THAT THE IMMUNITY CONFERRED WAS BROADER
THAN THE PRIVILEGE GIVEN BY THE FIFTH AMENDMENT.  THE DECISION
ATTRACTED PUBLIC INTEREST SINCE, IF IT STOOD, ONE COULD IMMUNIZE
HIMSELF FROM PROSECUTION BY VOLUNTEERING INFORMATION TO INVESTIGATORY
BODIES.  CONGRESS PROMPTLY ADOPTED THE ACT OF JUNE 30, 1906, SUPRA,
PROVIDING THAT THE IMMUNITY SHOULD ONLY EXTEND TO A NATURAL PERSON WHO,
IN OBEDIENCE TO A SUBPOENA, TESTIFIED OR PRODUCED EVIDENCE UNDER OATH. 
THE CONGRESSIONAL RECORD SHOWS THAT THE SOLE PURPOSE OF THE BILL WAS
EXACTLY WHAT ITS LANGUAGE STATES.  FN12  SENATOR KNOX, WHO SPONSORED
THE BILL, STATED:  "MR. PRESIDENT, THE PURPOSE OF THIS BILL IS CLEAR,
AND ITS RANGE IS NOT VERY BROAD.  IT IS NOT INTENDED TO COVER ALL
DISPUTED PROVISIONS AS TO THE RIGHTS OF WITNESSES UNDER ANY
CIRCUMSTANCES, EXCEPT THOSE ENUMERATED IN THE BILL ITSELF." 

IT IS EVIDENT THAT CONGRESS, BY THE EARLIER LEGISLATION, HAD OPENED
THE DOOR TO A PRACTICE WHEREBY THE GOVERNMENT MIGHT BE TRAPPED INTO
CONFERRING UNINTENDED IMMUNITY BY WITNESSES VOLUNTEERING TO TESTIFY. 
THE AMENDMENT WAS THOUGHT, AS THE CONGRESSIONAL RECORD DEMONSTRATES, TO
BE SUFFICIENT TO PROTECT THE GOVERNMENT'S INTERESTS BY PREVENTING
IMMUNITY UNLESS THE PROSECUTING OFFICER, OR OTHER GOVERNMENT OFFICIAL
CONCERNED, SHOULD COMPEL THE WITNESS' ATTENDANCE BY SUBPOENA AND HAVE
HIM SWORN. 

NOT UNTIL 1933 DID CONGRESS EVIDENCE AN INTENT THAT IF THE WITNESS
DESIRED IMMUNITY HE MUST, IN ADDITION, ASSERT HIS CONSTITUTIONAL
PRIVILEGE.  IN A SERIES OF ACTS ADOPTED BETWEEN 1934 AND 1940 AN
ADDITIONAL PROVISION WAS INSERTED ADDING THIS REQUIREMENT.  FN13  THESE
ACTS INDICATE HOW SIMPLE IT WOULD HAVE BEEN TO ADD A SIMILAR PROVISION
APPLICABLE TO THE INTERSTATE COMMERCE ACT, THE SHERMAN ACT, AND OTHERS
WHICH HAVE BEEN ALLOWED TO STAND AS ORIGINALLY ENACTED SAVE FOR THE
AMENDING ACT OF 1906.  FN14 

THE LEGISLATION INVOLVED IN THE INSTANT CASE IS PLAIN IN ITS TERMS
AND, ON ITS FACE, MEANS TO THE LAYMAN THAT IF HE IS SUBPOENAED, AND
SWORN, AND TESTIFIES, HE IS TO HAVE IMMUNITY.  INSTEAD OF BEING A TRAP
FOR THE GOVERNMENT, AS WAS THE ORIGINAL ACT, THE STATUTES IN QUESTION,
IF INTERPRETED AS THE GOVERNMENT NOW DESIRES, MAY WELL BE A TRAP FOR
THE WITNESS.  CONGRESS EVIDENTLY INTENDED TO AFFORD GOVERNMENT
OFFICIALS THE CHOICE OF SUBPOENAING A WITNESS AND PUTTING HIM UNDER
OATH, WITH THE KNOWLEDGE THAT HE WOULD HAVE COMPLETE IMMUNITY FROM
PROSECUTION RESPECTING ANY MATTER SUBSTANTIALLY CONNECTED WITH THE
TRANSACTIONS IN RESPECT OF WHICH HE TESTIFIED, OR RETAINING THE RIGHT
TO PROSECUTE BY FOREGOING THE OPPORTUNITY TO EXAMINE HIM.  THAT
CONGRESS DID NOT INTEND, OR BY THE STATUTES IN ISSUE PROVIDE, THAT, IN
ADDITION, THE WITNESS MUST CLAIM HIS PRIVILEGE, SEEMS CLEAR.  IT IS NOT
FOR US TO ADD TO THE LEGISLATION WHAT CONGRESS PRETERMITTED. 

WE HAVE REFERRED TO THE DIVERSITY OF VIEWS AMONGST THE LOWER COURTS. 
THE GOVERNMENT INSISTS THAT THIS COURT HAS SETTLED THE QUESTION IN
FAVOR OF ITS VIEW.  ITS RELIANCE IS UPON HEIKE V. UNITED STATES, 227
U.S. 131.  THAT CASE, HOWEVER, DECIDED ONLY THAT THE IMMUNITY CONFERRED
BY THE LEGISLATION IN QUESTION WAS INTENDED TO PROTECT THE WITNESS TO
THE SAME EXTENT THAT THE FIFTH AMENDMENT PROTECTS HIM.  THE QUESTION
WAS WHETHER THE IMMUNITY EXTENDED TO PROSECUTION FOR CRIMES WITH WHICH
THE MATTERS TESTIFIED TO WERE BUT REMOTELY CONNECTED.  THIS COURT HELD
THAT, AS THE AMENDMENT DID NOT JUSTIFY A CLAIM OF PRIVILEGE AGAINST
SUCH REMOTE CONTINGENCIES, THE IMMUNITY SHOULD BE LIKEWISE CONSTRUED
NOT TO REACH THEM.  THE QUESTION OF THE NECESSITY OF A WITNESS BEFORE
AN INVESTIGATORY BODY CLAIMING HIS PRIVILEGE IN ORDER TO EARN HIS
IMMUNITY WAS NOT DECIDED. 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF MARCH 2, 1907, 34 STAT. 1246, AS AMENDED BY THE ACT OF
MAY 9, 1942, 56 STAT. 271, 18 U.S.C. 682. 

FN2  COMPARE UNITED STATES V. ARMOUR & CO., 142 F. 808; UNITED STATES
V. SKINNER, 218 F. 870; UNITED STATES V. ELTON, 222 F. 428; UNITED
STATES V. LEE, 290 F. 517; JOHNSON V. UNITED STATES, 5 F.2D 471; UNITED
STATES V. LAY FISH CO., 13 F.2D 136; UNITED STATES V. GREATER NEW YORK
LIVE POULTRY C. OF C., 33 F.2D 1005, WITH UNITED STATES V. PARDUE, 294
F. 543; UNITED STATES V. WARD, 295 F. 576; UNITED STATES V. MOORE, 15
F.2D 593; UNITED STATES V. GOLDMAN, 28 F.2D 424. 

FN3  ACT OF FEBRUARY 25, 1903, C. 755, 32 STAT. 854, 904, 15 U.S.C.
32. 

FN4  34 STAT. 798, 15 U.S.C. 33. 

FN5  COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 562. 

FN6  UNITED STATES EX REL. VAJTAUER V. COMMISSIONER, 273 U.S. 103,
113. 

FN7  CONG. GLOBE, 40TH CONG., 2D SESS., PP. 950-51, 1334. 

FN8  15 STAT. 37. 

FN9  24 STAT. 383. 

FN10  27 STAT. 443, 49 U.S.C. 46. 

FN11  BROWN V. WALKER, 161 U.S. 591. 

FN12  40 CONG. REC. 5500, 7657-58, 8734-39-40. 

FN13  SEE E.G. SECURITIES EXCHANGE ACT, 48 STAT. 900, 15 U.S.C. 78U
(D); INVESTMENT ADVISERS ACT, 54 STAT. 853, 15 U.S.C. 80B-9(D). 

FN14  IT MAY BE, THAT, DUE TO THE THOROUGHNESS OF PRELIMINARY
INVESTIGATION IN THE CLASSES OF CASES IN QUESTION, CONGRESS HAS
BELIEVED THAT THE GOVERNMENT'S REPRESENTATIVES NEEDED NO FURTHER
WARNING OF THE RESULT OF SUBPOENAING A WITNESS AND EXAMINING HIM UNDER
OATH. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

IT IS BEYOND DISPUTE THAT THE CONSTITUTION DOES NOT COMPEL CONGRESS
TO AFFORD IMMUNITY FROM PROSECUTION TO THOSE WHO TESTIFY WITHOUT
INVOKING THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.  THE
QUESTION FOR DECISION HERE IS WHETHER, BY THE ACT OF JUNE 30, 1906, 34
STAT. 798, AMENDING THE IMMUNITY PROVISION OF THE ACT OF FEBRUARY 25,
1903, 32 STAT. 904, CONGRESS GRANTED MORE THAN THE CONSTITUTION
REQUIRES AND OFFERED A "GRATUITY TO CRIME," HEIKE V. UNITED STATES, 227
U.S. 131, 142, BY CONFERRING IMMUNITY TO PERSONS WHO TESTIFY WITHOUT
CLAIMING THE PROTECTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION AND
WHO IN NO WAY INDICATE THAT THEIR TESTIMONY IS BEING GIVEN IN RETURN
FOR THE STATUTORY IMMUNITY.  IN OTHER WORDS, DID CONGRESS, BY THAT
AMENDMENT, SEEK TO FACILITATE THE ENFORCEMENT OF LAW BY MAKING
"EVIDENCE AVAILABLE AND COMPULSORY THAT OTHERWISE COULD NOT BE GOT,"
IBID., OR WAS IT PASSING AN ACT OF AMNESTY?    THIS QUESTION CANNOT BE
ANSWERED BY CLOSING OUR EYES TO EVERYTHING EXCEPT THE NAKED WORDS OF
THE ACT OF JUNE 30, 1906.  THE NOTION THAT BECAUSE THE WORDS OF A
STATUTE ARE PLAIN, ITS MEANING IS ALSO PLAIN, IS MERELY PERNICIOUS
OVERSIMPLIFICATION.  IT IS A WOODEN ENGLISH DOCTRINE OF RATHER RECENT
VINTAGE (SEE PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW, 2D ED.,
294-300; AMOS, THE INTERPRETATION OF STATUTES, 5 CAMB.  L.J. 163;
DAVIES, THE INTERPRETATION OF STATUTES, 35 COL. L. REV. 519), TO WHICH
LIP SERVICE HAS ON OCCASION BEEN GIVEN HERE, BUT WHICH SINCE THE DAYS
OF MARSHALL THIS COURT HAS REJECTED, ESPECIALLY IN PRACTICE.  E.G.,
UNITED STATES V. FISHER, 2 CRANCH 358, 385-86; BOSTON SAND CO. V.
UNITED STATES, 278 U.S. 41, 48; UNITED STATES V. AMERICAN TRUCKING
ASSNS., 310 U.S. 534, 542-44.  A STATUTE, LIKE OTHER LIVING ORGANISMS,
DERIVES SIGNIFICANCE AND SUSTENANCE FROM ITS ENVIRONMENT, FROM WHICH IT
CANNOT BE SEVERED WITHOUT BEING MUTILATED.  ESPECIALLY IS THIS TRUE
WHERE THE STATUTE, LIKE THE ONE BEFORE US, IS PART OF A LEGISLATIVE
PROCESS HAVING A HISTORY AND A PURPOSE.  THE MEANING OF SUCH A STATUTE
CANNOT BE GAINED BY CONFINING INQUIRY WITHIN ITS FOUR CORNERS.  ONLY
THE HISTORIC PROCESS OF WHICH SUCH LEGISLATION IS AN INCOMPLETE
FRAGMENT - THAT TO WHICH IT GAVE RISE AS WELL AS THAT WHICH GAVE RISE
TO IT - CAN YIELD ITS TRUE MEANING.  AND SO WE MUST TURN TO THE HISTORY
OF FEDERAL IMMUNITY PROVISIONS. 

THE EARLIEST FEDERAL STATUTE DEALING WITH IMMUNITY IS THE ACT OF
JANUARY 24, 1857, 11 STAT. 155, AS AMENDED BY THE ACT OF JANUARY 24,
1862, 12 STAT. 333.  THIS LEGISLATION, RELATING TO TESTIMONY BEFORE
EITHER HOUSE OF CONGRESS, FURNISHED A MODEL FOR LATER IMMUNITY
PROVISIONS.  CONGRESS WAS CAREFUL TO STATE PRECISELY WHAT IT WAS FOR
WHICH IMMUNITY WAS GIVEN:  "NO WITNESS SHALL HEREAFTER BE ALLOWED TO
REFUSE TO TESTIFY TO ANY FACT OR TO PRODUCE ANY PAPER.  ..."  11 STAT.
156.  IT WAS THE REFUSAL TO TESTIFY, NOT THE REFUSAL TO APPEAR AS A
WITNESS, WHICH CONGRESS TOOK AWAY AND FOR WHICH IT GAVE IMMUNITY. 

DUTY, NOT PRIVILEGE, LIES AT THE CORE OF THIS PROBLEM - THE DUTY TO
TESTIFY, AND NOT THE PRIVILEGE THAT RELIEVES OF SUCH DUTY.  IN THE
CLASSIC PHRASE OF LORD CHANCELLOR HARDWICKE, "THE PUBLIC HAS A RIGHT TO
EVERY MAN'S EVIDENCE."  N1  THE DUTY TO GIVE TESTIMONY WAS QUALIFIED AT
COMMON LAW BY THE PRIVILEGE AGAINST SELF-INCRIMINATION.  AND THE FIFTH
AMENDMENT HAS EMBODIED THIS PRIVILEGE IN OUR FUNDAMENTAL LAW.  BUT THE
PRIVILEGE IS A PRIVILEGE TO WITHHOLD ANSWERS AND NOT A PRIVILEGE TO
LIMIT THE RANGE OF PUBLIC INQUIRY.  THE CONSTITUTION DOES NOT FORBID
THE ASKING OF CRIMINATIVE QUESTIONS.  IT PROVIDES ONLY THAT A WITNESS
CANNOT BE COMPELLED TO ANSWER SUCH QUESTIONS UNLESS "A FULL SUBSTITUTE"
FOR THE CONSTITUTIONAL PRIVILEGE IS GIVEN.  COUNSELMAN V. HITCHCOCK,
142 U.S. 547, 586.  THE COMPULSION WHICH THE PRIVILEGE ENTITLES A
WITNESS TO RESIST IS THE COMPULSION TO ANSWER QUESTIONS WHICH HE
JUSTIFIABLY CLAIMS WOULD TEND TO INCRIMINATE HIM.  BUT THE CONSTITUTION
DOES NOT PROTECT A REFUSAL TO OBEY A PROCESS.  A SUBPOENA IS, OF
COURSE, SUCH A PROCESS, MERELY A SUMMONS TO APPEAR.  8 WIGMORE ON
EVIDENCE (3D ED.)  P. 106, SEC. 2199.  THERE NEVER HAS BEEN A PRIVILEGE
TO DISREGARD THE DUTY TO WHICH A SUBPOENA CALLS.  AND WHEN CONGRESS
TURNED TO THE DEVICE OF IMMUNITY LEGISLATION, THEREFORE, IT DID NOT
PROVIDE A "SUBSTITUTE" FOR THE PERFORMANCE OF THE UNIVERSAL DUTY TO
APPEAR AS A WITNESS - IT DID NOT UNDERTAKE TO GIVE SOMETHING FOR
NOTHING.  IT WAS THE REFUSAL TO GIVE INCRIMINATING TESTIMONY FOR WHICH
CONGRESS BARGAINED, AND NOT THE REFUSAL TO GIVE ANY TESTIMONY.  AND IT
WAS ONLY IN EXCHANGE FOR SELF-INCRIMINATING TESTIMONY WHICH "OTHERWISE
COULD NOT BE GOT" (HEIKE V. UNITED STATES, 227 U.S. 131, 142) BECAUSE
OF THE WITNESS'S INVOCATION OF HIS CONSTITUTIONAL RIGHTS THAT CONGRESS
CONFERRED IMMUNITY AGAINST THE USE OF SUCH TESTIMONY. 

INSTEAD OF GIVING MORE THAN THE CONSTITUTIONAL EQUIVALENT FOR THE
PRIVILEGE AGAINST SELF-INCRIMINATION, CONGRESS FOR A LONG TIME DID NOT
GIVE ENOUGH.  SEE COUNSELMAN V. HITCHCOCK, 142 U.S. 547, INVALIDATING
THE ACT OF FEBRUARY 25, 1868, 15 STAT. 37, R.S. SEC. 860, THE FIRST
IMMUNITY STATUTE RELATING TO JUDICIAL PROCEEDINGS.  IN ORDER TO REMOVE
THE GAP BETWEEN WHAT THIS ACT GAVE AND WHAT THE CONSTITUTION WAS
CONSTRUED TO REQUIRE, CONGRESS PROMPTLY PASSED THE ACT OF FEBRUARY 11,
1893, 27 STAT. 443, IN ORDER NOT TO INTERRUPT THE EFFECTIVE ENFORCEMENT
OF THE INTERSTATE COMMERCE ACT.  AS THE DEBATES REVEAL, CONGRESS ACTED
ON ITS UNDERSTANDING OF WHAT THIS COURT IN THE COUNSELMAN DECISION
INDICATED WAS AN ADEQUATE LEGISLATIVE ALTERNATIVE.  SEE REMARKS OF
SENATOR CULLOM, JULY 18, 1892, 23 CONG. REC. 6333.  THE 1893 ACT
FOLLOWED THE LANGUAGE OF THE ACT OF JANUARY 24, 1857, BY PROVIDING THAT
"NO PERSON SHALL BE EXCUSED FROM ATTENDING AND TESTIFYING OR FROM
PRODUCING BOOKS  ..."  27 STAT. 443.  AND IN 1896 THIS COURT, IN BROWN
V. WALKER, 161 U.S. 591, 595, FOUND THAT THE 1893 ACT "SUFFICIENTLY
SATISFIES THE CONSTITUTIONAL GUARANTEE OF PROTECTION."  THERE WAS NO
INDICATION OF ANY BELIEF THAT CONGRESS HAD GIVEN ANYTHING MORE THAN IT
HAD TO GIVE - AND, INDEED, ONLY A BARE MAJORITY OF THE COURT THOUGHT
THAT THE STATUTE HAD GIVEN AS MUCH AS THE CONSTITUTION REQUIRED. 

CERTAINLY UNTIL THE BEGINNING OF THIS CENTURY, THEREFORE, CONGRESS
DISPLAYED NO MAGNANIMITY TO CRIMINALS BY AFFORDING AMNESTY FOR THEIR
CRIMES.  INDEED, SO SENSITIVE HAS CONGRESS BEEN AGAINST IMMUNIZING
CRIME THAT IT HAS NOT ENTRUSTED PROSECUTORS GENERALLY WITH THE POWER TO
RELIEVE WITNESSES FROM PROSECUTION IN EXCHANGE FOR INCRIMINATING
EVIDENCE AGAINST OTHERS.  BUT AS PART OF THE LEGISLATIVE PROGRAM FOR
THE CORRECTION OF CORPORATE ABUSES, CONGRESS IN FEBRUARY 1903 INCLUDED
PROVISIONS FOR IMMUNITY IN THREE ADDITIONAL MEASURES, THE ACT OF
FEBRUARY 14, 1903, 32 STAT. 828, ESTABLISHING THE DEPARTMENT OF
COMMERCE AND LABOR AND CONFERRING UPON THE COMMISSIONER OF CORPORATIONS
THE INVESTIGATORY POWERS POSSESSED BY THE INTERSTATE COMMERCE
COMMISSION, THE ELKINS AMENDMENT OF FEBRUARY 19, 1903, 32 STAT. 848, TO
THE INTERSTATE COMMERCE ACT, AND THE ACT OF FEBRUARY 25, 1903, 32 STAT.
903-04, MAKING LARGE APPROPRIATIONS FOR THE ENFORCEMENT OF THE
INTERSTATE COMMERCE ACT, THE SHERMAN LAW, AND OTHER ENACTMENTS.  IT IS
THIS LATTER PROVISION, AS AMENDED BY THE ACT OF 1906, WHICH IS
IMMEDIATELY BEFORE US. 

IT WAS NOT UNTIL THE STARTLING DECISION OF DISTRICT JUDGE HUMPHREY IN
UNITED STATES V. ARMOUR & CO., 142 F. 808, THAT THE SUGGESTION WAS
SERIOUSLY MADE THAT CONGRESS, IN STUDIOUSLY FASHIONING A CONSTITUTIONAL
EQUIVALENT FOR THE PRIVILEGE AGAINST SELF-INCRIMINATION, WAS PLAYING
LADY BOUNTIFUL TO CRIMINALS.  THE PARTICULAR CONCERNS WHICH THE ARMOUR
OPINION STIRRED MUST BE HEEDED BECAUSE THEY PROVOKED THE ACT OF 1906. 
THE MEANING OF THAT LEGISLATION IS LOST UNLESS DERIVED FROM THE
CIRCUMSTANCES WHICH GAVE RISE TO IT.  THE CASE AROSE OUT OF A
PROCEEDING BEGUN UNDER THE ACT OF FEBRUARY 14, 1903, 32 STAT. 825,
CREATING THE DEPARTMENT OF COMMERCE AND LABOR.  SECTION 8 OF THAT ACT
PROVIDED THAT THE SECRETARY OF COMMERCE AND LABOR SHALL "FROM TIME TO
TIME MAKE SUCH SPECIAL INVESTIGATIONS AND REPORTS AS HE MAY BE REQUIRED
TO DO BY  ...  EITHER HOUSE OF CONGRESS."  IN OBEDIENCE TO A RESOLUTION
OF THE HOUSE OF REPRESENTATIVES, THE SECRETARY DIRECTED THE
COMMISSIONER OF CORPORATIONS TO INVESTIGATE THE CAUSES OF THE LOW
PRICES OF BEEF CATTLE.  ACCORDINGLY, THE COMMISSIONER INSTITUTED SUCH
AN INQUIRY.  AT A CONFERENCE WITH OFFICERS OF THE PACKING CORPORATIONS
AND THEIR COUNSEL, THE COMMISSIONER EXPLAINED THE PURPOSES AND SCOPE OF
HIS INVESTIGATION.  HE INFORMED THEM THAT HE WAS ACTING INDEPENDENTLY
AND NOT IN COOPERATION WITH THE DEPARTMENT OF JUSTICE IN ITS
CONTEMPORANEOUS PROCEEDING AGAINST THE "BEEF TRUST" FOR ALLEGED
VIOLATIONS OF THE SHERMAN LAW, AND THAT ANY EVIDENCE OBTAINED FROM THE
PACKERS WOULD NOT BE GIVEN TO THE DEPARTMENT BUT WOULD BE REPORTED ONLY
TO THE PRESIDENT FOR HIS APPROPRIATE USE.  (H. DOC. NO. 706, 59TH
CONG., 1ST SESS., P. 6.)  THEREUPON THE COMMISSIONER'S AGENTS WERE
AFFORDED AN OPPORTUNITY TO EXAMINE THE PACKERS' BOOKS AND PAPERS. 

SUBSEQUENTLY, AN INDICTMENT UNDER THE SHERMAN LAW WAS FOUND AGAINST
THE PACKING CORPORATIONS AND THEIR OFFICERS.  PLEAS IN BAR WERE FILED,
ALLEGING IN SUBSTANCE THAT, AS A RESULT OF THE INVESTIGATION MADE BY
THE COMMISSIONER OF CORPORATIONS, THE DEFENDANTS HAD OBTAINED IMMUNITY
FROM PROSECUTION FOR THE OFFENSES CHARGED IN THE INDICTMENT.  JUDGE
HUMPHREY SUSTAINED THESE PLEAS AS TO THE INDIVIDUAL DEFENDANTS ON THE
GROUND THAT THE INFORMATION FURNISHED BY THE DEFENDANTS BROUGHT INTO
OPERATION THE IMMUNITY PROVISION OF THE ACT OF FEBRUARY 14, 1903, WHICH
INCORPORATED BY REFERENCE THE ACT OF FEBRUARY 11, 1893, 27 STAT. 443,
RELATING TO TESTIMONY BEFORE THE INTERSTATE COMMERCE COMMISSION.  JUDGE
HUMPHREY REACHED HIS CONCLUSION BY ATTRIBUTING TO CONGRESS IN PASSING
THE ACT OF FEBRUARY 11, 1893, A PURPOSE WHICH THIS COURT LATER
UNANIMOUSLY REJECTED IN HEIKE V. UNITED STATES, 227 U.S. 131.  FOR
WHILE JUDGE HUMPHREY CORRECTLY HELD THAT "THE PRIVILEGE OF THE
AMENDMENT PERMITS A REFUSAL TO ANSWER," HE ALSO STATED, QUITE
INCORRECTLY AND WITHOUT ANY WARRANT IN THE LANGUAGE, LEGISLATIVE
HISTORY OR POLICY OF THE ACT, THAT THE STATUTE "WIPES OUT THE OFFENSE
ABOUT WHICH THE WITNESS MIGHT HAVE REFUSED TO ANSWER."  142 F. AT 822. 
IN OTHER WORDS, THE DISTRICT JUDGE TREATED THE IMMUNITY ACT AS THOUGH
IT WERE AN ACT OF AMNESTY, AND THAT IS PRECISELY WHAT THIS COURT IN THE
HEIKE CASE SAID IT WAS NOT:  "OF COURSE THERE IS A CLEAR DISTINCTION
BETWEEN AN AMNESTY AND THE CONSTITUTIONAL PROTECTION OF A PARTY FROM
BEING COMPELLED IN A CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF. 
AMENDMENT V. BUT THE OBVIOUS PURPOSE OF THE STATUTE (THE ACT OF
FEBRUARY 25, 1903) IS TO MAKE EVIDENCE AVAILABLE AND COMPULSORY THAT
OTHERWISE COULD NOT BE GOT.  WE SEE NO REASON FOR SUPPOSING THAT THE
ACT OFFERED A GRATUITY TO CRIME.  IT SHOULD BE CONSTRUED, SO FAR AS ITS
WORDS FAIRLY ALLOW THE CONSTRUCTION, AS COTERMINOUS WITH WHAT OTHERWISE
WOULD HAVE BEEN THE PRIVILEGE OF THE PERSON CONCERNED.  WE BELIEVE ITS
POLICY TO BE THE SAME AS THAT OF THE EARLIER ACT OF FEBRUARY 11, 1893,
C. 83, 27 STAT. 443, WHICH READ 'NO PERSON SHALL BE EXCUSED FROM
ATTENDING AND TESTIFYING,' &C.  'BUT NO PERSON SHALL BE PROSECUTED,'
&C., AS NOW, THUS SHOWING THE CORRELATION BETWEEN CONSTITUTIONAL RIGHT
AND IMMUNITY BY THE FORM."  227 U.S. AT 142. 

JUDGE HUMPHREY DOUBTLESS FELL INTO ERROR BECAUSE HE TREATED THE
IMMUNITY PROVISION AS SUBSIDIARY TO THE MAIN PURPOSE, AS HE CONCEIVED
IT, OF THE ACT ESTABLISHING THE DEPARTMENT OF COMMERCE AND LABOR.  HE
BELIEVED "THE PRIMARY PURPOSE" OF THAT ACT WAS TO "SECURE INFORMATION
FOR THE USE OF THE LEGISLATIVE BODY."  142 F. AT 826.  IT IS PLAIN THAT
HE DID NOT VIEW THE IMMUNITY PROVISIONS IN THEIR TRUE LIGHT, THAT IS,
AS MEANS TO FACILITATE THE ADMINISTRATION OF THE CRIMINAL LAW. 
WHATEVER JUSTIFICATION JUDGE HUMPHREY MAY HAVE HAD FOR ENTERTAINING
SUCH A NOTION WITH REGARD TO THE ACT CREATING THE DEPARTMENT OF
COMMERCE AND LABOR, IT CERTAINLY HAS NO APPLICATION TO THE IMMUNITY
PROVISIONS TOUCHING THE INTERSTATE COMMERCE ACT AND THE SHERMAN LAW. 
THOSE PROVISIONS WERE ENACTED AS AIDS IN THE ENFORCEMENT OF CRIMINAL
JUSTICE; THEY WERE NOT ACTS OF AMNESTY DESIGNED TO WIPE OUT CRIMINAL
OFFENSES. 

ACTING SWIFTLY TO CORRECT THE ERROR OF THE ARMOUR DECISION, THE
PRESIDENT RECOMMENDED THAT "THE CONGRESS PASS A DECLARATORY ACT" TO SET
ASIDE JUDGE HUMPHREY'S MISCONCEPTION OF CONGRESSIONAL PURPOSE.  MESSAGE
FROM THE PRESIDENT OF THE UNITED STATES, APRIL 18, 1906, H. DOC. NO.
706, 59TH CONG., 1ST SESS., P. 3.  IN SO DOING, PRESIDENT THEODORE
ROOSEVELT WAS ACTING UPON THE ADVICE OF ATTORNEY GENERAL (SOON TO
BECOME MR. JUSTICE) MOODY.  NATURALLY ENOUGH, THE DECLARATORY
LEGISLATION DIRECTED ITSELF TO THE CORRECTION OF THE TWO EVILS THAT
JUDGE HUMPHREY'S OPINION PROJECTED, NAMELY, TO MAKE IT CLEAR THAT
IMMUNITY SHOULD NOT BE AFFORDED FOR PRODUCING CORPORATE DOCUMENTS WHICH
COULD IN ANY EVENT BE HAD BECAUSE THE PRIVILEGE AGAINST SELF
CRIMINATION IS NOT AVAILABLE TO CORPORATIONS, WILSON V. UNITED STATES,
221 U.S. 361, 372-74, AND THAT A PERSON WHO DOES NOT GIVE EVIDENCE
UNDER THE ORDINARY FORMALITIES INCIDENT TO BEING A WITNESS WAS NOT
ENTITLED TO IMMUNITY.  THE LEGISLATION WAS RESPONSIVE TO THE
GOVERNMENT'S POSITION, AS STATED BY ATTORNEY GENERAL MOODY:  "UPON
THESE FACTS (IN THE ARMOUR CASE) THE GOVERNMENT CONTENDED THAT THE
STATUTORY IMMUNITY COULD BE CONFERRED ONLY UPON PERSONS SUBPOENAED BY
THE COMMISSIONER OF CORPORATIONS WHO MIGHT SUBSEQUENTLY GIVE TESTIMONY
OR EVIDENCE (IN THE LEGAL SENSE OF THOSE TERMS) RELATING TO THE SUBJECT
MATTER OF THE INDICTMENT."  H. DOC. NO. 706, 59TH CONG., 1ST SESS., P.
7. 

SUCH WAS THE LIMITED PURPOSE OF THE 1906 AMENDMENT.  COULD IT BE THAT
THE PRESIDENT HAVING PROPOSED, AND THE CONGRESS HAVING ENACTED, A
RESTRICTIVE DECLARATION REGARDING THE SCOPE OF THE IMMUNITY PROVISION
IN ORDER TO PREVENT OTHER COURTS FROM FOLLOWING THE LATITUDINARIAN
MISCONCEPTION OF JUDGE HUMPHREY, THE PRESIDENT AND THE CONGRESS, BOTH
ACTING UPON THE ADVICE OF ONE OF THE ABLEST OF ATTORNEYS GENERAL, WERE
UNWITTINGLY BETRAYED INTO INTRODUCING A NEW GRATUITY FOR WITNESSES
UNDER DUTY TO RESPOND TO A SUBPOENA, BY GIVING AN AMNESTY IN EXCHANGE
FOR THE MERE RESPONSE? 

FOR MORE THAN SEVENTEEN YEARS THEREAFTER IT WAS UNQUESTIONED THAT
CONGRESS HAD GIVEN NO MORE THAN THE CONSTITUTION REQUIRED - FREEDOM
FROM PROSECUTION FOR EVIDENCE THAT COULD NOT OTHERWISE BE OBTAINED,
EVIDENCE THAT WAS WITHHELD UPON CLAIM OF CONSTITUTIONAL PRIVILEGE,
EVIDENCE THAT WAS GIVEN ONLY BECAUSE CONGRESS HAD PROVIDED IMMUNITY. 
THIS WAS THE RULING OF ALL THE FEDERAL COURTS WHICH CONSIDERED THE
QUESTION, COURTS ON WHICH SAT SOME OF THE ABLEST JUDGES OF THEIR DAY -
JUDGE MARTIN IN UNITED STATES V. HEIKE, 175 F. 852; JUDGE GRUBB IN
UNITED STATES V. SKINNER, 218 F. 870; JUDGE HUNT IN UNITED STATES V.
ELTON, 222 F. 428; AND JUDGE ROSE IN JOHNSON V. UNITED STATES, 5 F.2D
471.  THE NARROW PURPOSE OF THE 1906 AMENDMENT, IN THE LIGHT OF THE
EVENTS WHICH GAVE RISE TO IT, WAS SUCCINCTLY SET FORTH BY JUDGE ROSE:
"QUITE CLEARLY THIS ACT DID ONLY TWO THINGS AND IT WAS INTENDED TO DO
NO MORE.  IT MADE IT CLEAR THAT THE IMMUNITY GRANTED DID NOT INURE TO
THE BENEFIT OF CORPORATIONS AND THAT A NATURAL PERSON COULD NOT CLAIM
IT UNLESS HE HAD TESTIFIED IN OBEDIENCE TO A SUBPOENA.  IT WAS PASSED
TO MEET THE SERIOUS SITUATION WHICH THE PRESIDENT AND CONGRESS THOUGHT
HAD BEEN CREATED BY THE RULINGS OF JUDGE HUMPHREY.  ...  IT WAS CLEARLY
NOT INTENDED TO CHANGE THE PREVIOUSLY EXISTING LAW IN ANY OTHER
RESPECT.  ...  A CONSTRUCTION SHOULD NOT BE GIVEN TO IT WHICH WOULD
RESULT IN A GRAND JURY OR PROSECUTING OFFICER UNWITTINGLY CONFERRING
IMMUNITY UPON A SERIOUS OFFENDER BECAUSE IN THE BEST OF GOOD FAITH, AND
WITH NO REASON TO SUPPOSE THAT HE WAS CRIMINALLY INVOLVED IN THE
TRANSACTION, HE WAS SUBPOENAED TO PRODUCE SOME DOCUMENTS OR TO GIVE
SOME TESTIMONY WHICH PERHAPS COULD JUST AS WELL HAVE BEEN OBTAINED FROM
OTHER SOURCES.  UNQUESTIONABLY THE WITNESS HAS THE CONSTITUTIONAL RIGHT
TO OBJECT TO TESTIFYING.  THEN IT IS OPEN TO THE GOVERNMENT TO ELECT
WHETHER IT WILL OR WILL NOT PROCEED WITH HIS EXAMINATION UNDER THE
STATUTE, BUT IF IT DOES NOT, HIS RIGHTS REMAIN AS THEY WERE BEFORE HE
WAS CALLED TO THE STAND."  JOHNSON V. UNITED STATES, 5 F.2D 471, 477. 

THE OBSERVATIONS OF JUDGE GRUBB IN UNITED STATES V. SKINNER, 218 F.
870, 879, ARE EQUALLY PERTINENT HERE:  "THE WITNESS, IN MANY CASES, IS
ALONE INFORMED AS TO WHETHER HIS EVIDENCE WILL TEND TO INCRIMINATE
HIM.  THE SUPPOSED INCRIMINATION MAY RELATE TO OFFENSES NOT UNDER
INVESTIGATION BY THE EXAMINING TRIBUNAL, AND OF THE EXISTENCE OF WHICH
OR OF THE RELATION OF THE DESIRED EVIDENCE TO WHICH THE EXAMINING
TRIBUNAL OR THE GOVERNMENT LAW OFFICER MAY HAVE NO KNOWLEDGE.  THE
HEIKE CASE IS AN APT ILLUSTRATION OF THIS POSSIBILITY.  THE WITNESS IS
LIKELY TO HAVE EXCLUSIVE KNOWLEDGE AS TO WHAT FACTS AND WHAT ANSWERS
MAY TEND TO HIS INCRIMINATION, AND WITH REFERENCE TO WHAT OFFENSES. 
AGAIN, THE WITNESS ALONE KNOWS WHETHER HE WILLINGLY GIVES HIS EVIDENCE
FOR THE PURPOSE OF EXONERATING HIMSELF, OR ONLY WITH THE EXPECTATION OF
RECEIVING IMMUNITY THEREFOR.  HE IS THEREFORE IN A BETTER POSITION TO
BE CALLED UPON TO ASSERT HIS CONSTITUTIONAL PRIVILEGE THAN IS THE
EXAMINING TRIBUNAL OR THE LAW OFFICER OF THE GOVERNMENT TO CALL UPON
HIM TO ELECT TO DO SO.  IF ANY HARDSHIP ATTENDS THE IMPOSITION OF THIS
BURDEN ON THE WITNESS, IT HAS NEVER BEEN CONSIDERED WEIGHTY ENOUGH TO
RELIEVE HIM THEREFROM IN EXERCISING HIS CONSTITUTIONAL PRIVILEGE, PRIOR
TO THE IMMUNITY STATUTES.  THE IMMUNITY GRANTED BY THE STATUTE IS A
MERE SUBSTITUTE FOR THE CONSTITUTIONAL SAFEGUARD, AND HAS BEEN HELD BY
THE SUPREME COURT TO BE COTERMINOUS WITH IT.  THERE WOULD SEEM,
THEREFORE, TO BE NO REASON FOR A DIFFERENT PRACTICE AS TO THE ASSERTION
OF THE PRIVILEGE WHERE IMMUNITY IS DESIRED AND WHERE THE CONSTITUTIONAL
PRIVILEGE IS INSISTED UPON." 

THESE DECISIONS THUS REFLECTED WEIGHTY CONSIDERATIONS OF POLICY IN
FINDING THAT CONGRESS AFFORDED IMMUNITY FROM PROSECUTION ONLY TO THE
EXTENT THAT THE CONSTITUTION REQUIRED IN EXCHANGE FOR A PRIVILEGE AND
THAT CONGRESS WAS NOT GIVING AWAY INDULGENCES. 

THESE CONSIDERATIONS OF POLICY WERE CERTAINLY NOT ANSWERED IN THE
OPINION OF THE TEXAS DISTRICT COURT WHICH, IN 1923, MADE THE FIRST
DEPARTURE FROM THIS UNIFORM CONSTRUCTION OF THE STATUTE.  THE COURT
HELD THAT IMMUNITY CAME MERELY BECAUSE ONE TESTIFIED IN OBEDIENCE TO A
SUBPOENA, WITHOUT ANY CLAIM, EITHER EXPLICIT OR IMPLIED BY THE
CIRCUMSTANCES, THAT HE HAD A CONSTITUTIONAL RIGHT TO REFUSE TO ANSWER
ON THE GROUND THAT HE MIGHT THEREBY BE INCRIMINATED AND THAT THE
TESTIMONY WAS BEING GIVEN ONLY UNDER COMPULSION OF THE IMMUNITY
STATUTE.  UNITED STATES V. PARDUE, 294 F. 543.  THE COURT STATED THAT
ITS POSITION WAS SUPPORTED BY THE WEIGHT OF AUTHORITY, CITING (1) THE
DECISION OF JUDGE HUMPHREY IN THE ARMOUR CASE; (2) UNITED STATES V.
SWIFT, 186 F. 1002, THE OPINION IN WHICH, SO FAR AS IT IS RELEVANT TO
THE QUESTION HERE, SEEMS TO POINT CLEARLY THE OTHER WAY (SEE,
ESPECIALLY, 186 F. AT 1016-18); (3) STATE V. MURPHY, 128 WIS. 201, 107
N.W. 470, WHICH, MUCH QUESTIONED ORIGINALLY, HAS BEEN REPUDIATED BY THE
COURT WHICH RENDERED IT, CARCHIDI V. STATE, 187 WIS. 438, 204 N.W. 473,
AND STATE V. GROSNICKLE, 189 WIS. 17, 206 N.W. 895; AND (4) A DECISION
OF THE NEW YORK COURT OF APPEALS, PEOPLE V. SHARP, 107 N.Y. 427, 14
N.E. 319.  IN CONSIDERING "THE REASONS WHICH SHOULD CONTROL," THE
DISTRICT COURT WAS "SHOCKED BY THE UNCONSCIONABLENESS OF THE CLAIM  ...
THAT THE GOVERNMENT CAN UNDER A STATUTE WHICH  ...  GRANTS GENERAL
AMNESTY TO PERSONS WHO APPEAR AND TESTIFY IN OBEDIENCE TO A SUBPOENA,
COMPEL THEM TO TESTIFY, AND THEREAFTER BREAK FAITH WITH THEM BY DENYING
THE PROTECTION OF THE STATUTE TO THOSE WHO TESTIFY IN EXACT ACCORDANCE
WITH ITS TERMS."  294 F. AT 547.  STARTING WITH THE MISCONCEPTION THAT
THE IMMUNITY PROVISION WAS AN ACT OF AMNESTY AND NOT A QUID PRO QUO FOR
THE CONSTITUTIONAL PRIVILEGE, THE DISTRICT COURT READILY GLIDED INTO
QUESTION-BEGGING BY FINDING THAT THERE WAS A BREACH OF FAITH IN
CONTESTING THE CLAIM OF AMNESTY.  FN2 

ONCE THE CONFUSION IS AVOIDED BETWEEN AN ACT OF AMNESTY AND AN ACT
WHICH GIVES IMMUNITY IN ORDER "TO MAKE EVIDENCE AVAILABLE AND
COMPULSORY THAT OTHERWISE COULD NOT BE GOT" BECAUSE IT COULD BE
WITHHELD UPON A CLAIM OF CONSTITUTIONAL PRIVILEGE, IT BECOMES CLEAR
THAT A WITNESS IS NOT "ENTRAPPED" BY REQUIRING HIM TO CLAIM HIS
CONSTITUTIONAL PRIVILEGE BEFORE AFFORDING HIM A SUBSTITUTE.  A WITNESS
IS NO MORE ENTRAPPED BY THE REQUIREMENT THAT HE MUST STAND UPON HIS
CONSTITUTIONAL RIGHTS, IF HE DESIRES THEIR PROTECTION, WHEN THERE IS AN
IMMUNITY STATUTE THAN HE IS WHERE THERE IS NONE AT ALL.  IT IS ONE
THING TO FIND THAT INCRIMINATING ANSWERS GIVEN BY A WITNESS WERE GIVEN
BECAUSE IN THE SETTING OF THE PARTICULAR CIRCUMSTANCES HE WOULD NOT
HAVE BEEN ALLOWED TO WITHHOLD THEM.  IT IS QUITE ANOTHER TO SUGGEST
THAT ONE WHO APPEARS AS A WITNESS SHOULD, MERELY BECAUSE HIS APPEARANCE
IS IN OBEDIENCE TO A SUBPOENA, THEREBY OBTAIN IMMUNITY "ON ACCOUNT OF
ANY TRANSACTION, MATTER OR THING CONCERNING WHICH HE MAY TESTIFY," EVEN
THOUGH THE INCRIMINATION MAY RELATE TO A TRANSACTION WHOLLY FOREIGN TO
THE INQUIRY IN WHICH THE TESTIMONY IS GIVEN AND EVEN THOUGH THE MOST
ALERT AND CONSCIENTIOUS PROSECUTOR WOULD NOT HAVE THE SLIGHTEST INKLING
THAT THE TESTIMONY LED TO A TRAIL OF SELF-CRIMINATION.  SUCH A
CONSTRUCTION MAKES OF THE IMMUNITY STATUTE NOT WHAT ITS HISTORY CLEARLY
REVEALS IT TO BE, NAMELY, A CAREFULLY DEVISED INSTRUMENT FOR THE
ACHIEVEMENT OF CRIMINAL JUSTICE, BUT A MEASURE FOR THE GRATUITOUS
RELIEF OF CRIMINALS.  THE STATUTE REFLECTS THE JUDGMENT OF CONGRESS
THAT "THE PUBLIC HAS A RIGHT TO EVERY MAN'S EVIDENCE."  IT IS NOT FOR
US TO RELAX THE DEMANDS OF SOCIETY UPON ITS CITIZENS TO APPEAR IN
PROCEEDINGS TO ENFORCE LAWS ENACTED FOR THE PUBLIC GOOD. 

BEGINNING WITH THE SECURITIES ACT OF 1933, 48 STAT. 87, CONGRESS HAS
ENACTED NO LESS THAN SEVENTEEN REGULATORY MEASURES WHICH CONTAIN
PROVISIONS FOR IMMUNITY FROM PROSECUTION IN EXCHANGE FOR SELF
INCRIMINATING TESTIMONY.  OF THESE, FOURTEEN, INCLUDING INTER ALIA THE
SECURITIES EXCHANGE ACT OF 1934, 48 STAT. 900, THE NATIONAL LABOR
RELATIONS ACT, 49 STAT. 456, THE COMMUNICATIONS ACT OF 1934, 48 STAT.
1097, THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49 STAT. 832, THE
FEDERAL POWER ACT, 49 STAT. 858, AND THE CIVIL AERONAUTICS ACT OF 1938,
52 STAT. 1022, CONFER IMMUNITY WHEN A PERSON TESTIFIES UNDER COMPULSION
"AFTER HAVING CLAIMED HIS PRIVILEGE AGAINST SELF-INCRIMINATION."  THREE
OF THESE STATUTES, HOWEVER, THE MOTOR CARRIER ACT OF 1935, 49 STAT.
550, THE INDUSTRIAL ALCOHOL ACT, 49 STAT. 875, AND THE FAIR LABOR
STANDARDS ACT OF 1938, 52 STAT. 1065, DO NOT CONTAIN THIS ADDITIONAL
CLAUSE - THEY MERELY FOLLOW THE OLD FORM CUSTOMARILY USED BY CONGRESS
PRIOR TO THE SECURITIES ACT OF 1933.  OF COURSE, THERE IS A DIFFERENCE
IN THE LANGUAGE OF THESE STATUTORY PROVISIONS.  BUT THE PROCESS OF
CONSTRUING A STATUTE CANNOT END WITH NOTING LITERARY DIFFERENCES.  THE
TASK IS ONE OF FINDING MEANING; AND A DIFFERENCE IN WORDS IS NOT
NECESSARILY A DIFFERENCE IN THE MEANING THEY CARRY.  THE QUESTION IS
NOT WHETHER THESE PROVISIONS ARE DIFFERENT, BUT WHETHER THERE IS
SIGNIFICANCE IN THE DIFFERENCE.  IF THE DIFFERENCE IN LANGUAGE
REFLECTED A DIFFERENCE IN THE SCOPE OF THE IMMUNITY GIVEN, OR IN THE
NATURE OF THE CONSIDERATIONS THAT MOVED CONGRESS TO MAKE A
DIFFERENTIATION, THERE WOULD SURELY BE SOME INDICATION, HOWEVER FAINT,
SOMEWHERE IN THE LEGISLATIVE HISTORY OF THESE ENACTMENTS THAT SOME
LEGISLATOR WAS AWARE THAT THE DIFFERENCE IN LANGUAGE HAD SIGNIFICANCE. 
BUT THERE IS NONE. 

IF CONGRESS SAW FIT GRATUITOUSLY TO CONFER IMMUNITY TO CITIZENS WHO
APPEAR AS WITNESSES IN PROCEEDINGS TO ENFORCE THE MOTOR CARRIER ACT OF
AUGUST 9, 1935, IT IS HARD TO UNDERSTAND WHY IT SHOULD GIVE SUCH
IMMUNITY ONLY TO THOSE WHO, AFTER ASSERTING THEIR PRIVILEGE, WERE
PRESSED TO GIVE EVIDENCE IN PROCEEDINGS TO ENFORCE THE FEDERAL POWER
ACT OF AUGUST 26, 1935, AND IN PROCEEDINGS TO ENFORCE THE PUBLIC
UTILITY HOLDING COMPANY ACT WHICH BECAME LAW THE SAME DAY, AND AGAIN
SHOULD HAVE GIVEN THE PRIVILEGE GRATUITOUSLY IN THE INDUSTRIAL ALCOHOL
ACT, WHICH BECAME LAW THE FOLLOWING DAY.  THE RAILROAD UNEMPLOYMENT
INSURANCE ACT, 52 STAT. 1107, AND THE FAIR LABOR STANDARDS ACT OF 1938,
52 STAT. 1065, BOTH BECAME LAW THE SAME DAY, JUNE 25, 1938.  YET THE
IMMUNITY PROVISION OF THE FORMER CONTAINS THE "AFTER HAVING CLAIMED,
ETC." CLAUSE, AND THAT OF THE LATTER DOES NOT.  IT IS ONLY FAIR TO
CONGRESS TO ASSUME THAT IF THERE WAS A PURPOSE TO MAKE A DIFFERENCE IN
THE DEMANDS UPON CITIZENS WHEN THEY APPEAR AS WITNESSES UNDER ONE
STATUTE RATHER THAN THE OTHER, THAT PURPOSE WOULD HAVE BEEN STATED
SOMEWHERE IN THE COURSE OF THE LEGISLATIVE HISTORY.  BUT THERE IS A
TOTAL ABSENCE OF ANY INDICATION ANYWHERE THAT ANY CONGRESSMAN HAD ANY
NOTION THAT THE ENFORCEMENT OF THE MOTOR CARRIER ACT OF 1935, THE
INDUSTRIAL ALCOHOL ACT, OR THE FAIR LABOR STANDARDS ACT OF 1938, CALLED
FOR A DIFFERENT TREATMENT OF WITNESSES IN PROCEEDINGS UNDER THESE ACTS
THAN IN ENFORCEMENT PROCEEDINGS UNDER THE OTHER FOURTEEN ACTS.  THE
EXPLANATION SEEMS OBVIOUS.  THERE ARE NO EXPRESSIONS IN THE LEGISLATIVE
MATERIALS TO INDICATE THAT THE LEGISLATIVE PURPOSE VARIED IN THIS
RESPECT BETWEEN THESE ACTS BECAUSE THERE WAS NO DIFFERENCE IN PURPOSE. 

BUT THE VARIATIONS IN THE PHRASEOLOGY EMPLOYED IN THE ACTS ARE NOT TO
BE EXPLAINED AWAY AS JUST CAPRICES OF A SINGLE DRAFTSMAN.  THE
EXPLANATION IS LIKELY TO BE FOUND IN THE MANNER IN WHICH CONGRESS
USUALLY ACTS IN ADOPTING REGULATORY LEGISLATION.  IF A SINGLE DRAFTSMAN
HAD DRAFTED EACH OF THESE PROVISIONS IN ALL SEVENTEEN STATUTES, THERE
MIGHT BE SOME REASON FOR BELIEVING THAT THE DIFFERENCE IN LANGUAGE
REFLECTED A DIFFERENCE IN MEANING.  BUT IT IS COMMON KNOWLEDGE THAT
THESE MEASURES ARE FREQUENTLY DRAWN, AT LEAST IN THE FIRST INSTANCE, BY
SPECIALISTS (PERHAPS CONNECTED WITH INTERESTED GOVERNMENT DEPARTMENTS)
IN THE VARIOUS FIELDS.  PROVISIONS IN DIFFERENT MEASURES DEALING WITH
THE SAME PROCEDURAL PROBLEM NOT UNNATURALLY, THEREFORE, LACK UNIFORMITY
OF PHRASING. 

WE DO NOT HAVE TO LOOK VERY FAR IN ORDER TO SEE HOW CONGRESS HAPPENED
TO USE ONE FORM OF IMMUNITY PROVISION IN SOME OF THESE STATUTES AND
ANOTHER FORM IN OTHERS.  CONSIDER THE EVOLUTION OF THE THREE STATUTES
WHICH FOLLOWED THE OLD, PRE-1933 FORM.  THE MOTOR CARRIER ACT OF 1935
WAS ENACTED AS AN AMENDMENT TO THE INTERSTATE COMMERCE ACT.  WHAT WAS
MORE NATURAL THAN THAT THE ENFORCEMENT PROVISIONS OF THE OLD ACT SHOULD
BE INCORPORATED BY REFERENCE IN PROVIDING FOR THE NEW POWERS OF THE
COMMISSION.  SECS. 201, 205E, 49 STAT. 543, 550.  AND THE INDUSTRIAL
ALCOHOL ACT OF 1935, SO FAR AS ITS ENFORCEMENT PROVISIONS WERE
CONCERNED, WAS PATTERNED UPON ITS PREDECESSOR, THE NATIONAL PROHIBITION
ACT OF 1919, 41 STAT. 317, AND THE DRAFTSMAN NATURALLY TOOK THE
IMMUNITY PROVISION FROM THAT STATUTE. 

THE FAIR LABOR STANDARDS ACT OF 1938 HAS A MORE COMPLICATED BUT EVEN
MORE REVEALING HISTORY.  INTRODUCED FIRST IN THE SENATE ON MAY 24,
1937, IT CARRIED THE EXPLICIT PROVISION THAT A PERSON GAINS IMMUNITY
"AFTER HAVING CLAIMED HIS PRIVILEGE AGAINST SELF-INCRIMINATION."  IT
REMAINED IN THIS FORM THROUGHOUT THE COURSE OF THE LEGISLATION IN BOTH
THE HOUSE AND THE SENATE FOR NEARLY A YEAR, WHEN THE WHOLE CONCEPTION
OF THE BILL WAS CHANGED.  EVERYTHING WAS STRUCK OUT AFTER THE ENACTING
CLAUSE, AND THE NEW MEASURE WAS SUBMITTED TO THE HOUSE ON APRIL 21,
1938.  AS PART OF THAT NEW BILL, THE PROVISION FOR THE ATTENDANCE OF
WITNESSES IN THE ENFORCEMENT OF THE ACT SIMPLY INCORPORATED BY
REFERENCE THE PROVISION OF THE FEDERAL TRADE COMMISSION ACT - AND
OBVIOUSLY THIS WAS BECAUSE THE DRAFTSMEN OF THE NEW BILL DREW HEAVILY
UPON THE SCHEME OF THAT ACT.  BUT THERE IS AN UTTER WANT OF EVIDENCE TO
SUPPORT THE SUGGESTION THAT AFTER A YEAR THE PROPONENTS OF THIS
LEGISLATION, AND THE COMMITTEES THAT GRAPPLED WITH ITS PROBLEMS,
CHANGED THEIR MINDS AS TO THE EXTENT OF THE IMMUNITY TO BE AFFORDED TO
WITNESSES SUMMONED IN PROCEEDINGS UNDER THE ACT.  NOR IS THERE ANY
EVIDENCE IN THE DEBATES THAT WHEN CONGRESS FINALLY PASSED THE MEASURE
IN ITS PRESENT FORM, IT MEANT TO GIVE A GREATER IMMUNITY THAN THAT
WHICH WAS PROVIDED IN THE VARIOUS BILLS THAT WERE BEFORE THE SENATE AND
THE HOUSE FOR A YEAR. 

THE COURSE TAKEN BY THE SECURITIES ACT OF 1933 BEFORE IT WAS FINALLY
ENACTED IS REVEALING AS TO THE SIGNIFICANCE OF ITS IMMUNITY PROVISION,
THE FIRST TO DEPART FROM THE OLD FORM.  UP TO THE TIME THAT THE BILLS
WHICH EVENTUALLY BECAME THE ACT EMERGED FROM CONFERENCE, THE IMMUNITY
PROVISION FOLLOWED THE OLD FORM.  THE NEW FORMULA APPEARS FOR THE FIRST
TIME IN THE BILL REPORTED BY THE CONFERENCE.  BUT NEITHER IN THE
CONFERENCE REPORT NOR ELSEWHERE IS THERE ANY SUGGESTION THAT THE
INTRODUCTION OF THIS PHRASE IMPORTED ANY NEW LEGISLATIVE PURPOSE OR
THAT IT WAS ANYTHING MORE THAN A CAREFUL REPHRASING OF A CONVENTIONAL
STATUTORY PROVISION.  IN THE CASE OF THE FAIR LABOR STANDARDS ACT, AS
WE HAVE SEEN, THE MORE METICULOUS PHRASE, "AFTER HAVING CLAIMED HIS
PRIVILEGE AGAINST SELF-INCRIMINATION," WAS IN ALL SUCCESSIVE BILLS IN
BOTH THE HOUSE AND THE SENATE BUT IT DISAPPEARED AT THE FINAL STAGE OF
THE ENACTMENT OF THE MEASURE.  NO ONE EVER SUGGESTED, SO FAR AS THE
AVAILABLE MATERIALS SHOW, THAT THE CHANGE IN THE FORMULA IMPLIED ANY
CHANGE AS TO THE INTENDED SCOPE OF THE IMMUNITY PROVISION.  STYLE, NOT
SUBSTANCE, IS OBVIOUSLY THE EXPLANATION.  IN THE CASE OF ONE STATUTE,
CONGRESS BEGAN WITH THE NEW FORM AND ENDED WITH THE OLD ONE; IN THE
CASE OF THE OTHER, IT BEGAN WITH THE OLD ONE AND ENDED WITH THE NEW. 
UPON WHAT RATIONAL BASIS CAN WE ATTRIBUTE TO CONGRESS AN INTENTION TO
MAKE THE SCOPE OF THE IMMUNITY PROVISION OF THE ONE STATUTE VITALLY
DIFFERENT FROM THAT OF THE OTHER? 

TO ATTRIBUTE CAPRICE TO CONGRESS IS NOT TO RESPECT ITS RATIONAL
PURPOSE WHEN, AS HERE, WE FIND A UNIFORM POLICY DEEPLY ROOTED IN
HISTORY EVEN THOUGH VARIOUSLY PHRASED BUT ALWAYS DIRECTED TO THE SAME
END OF MEETING THE SAME CONSTITUTIONAL REQUIREMENT. 

I AM THEREFORE OF OPINION THAT AN APPEARANCE IN RESPONSE TO A
SUBPOENA DOES NOT OF ITSELF CONFER IMMUNITY FROM PROSECUTION FOR
ANYTHING THAT A WITNESS SO RESPONDING MAY TESTIFY.  THERE MUST BE
CONSCIOUS SURRENDER OF THE PRIVILEGE OF SILENCE IN THE COURSE OF A
TESTIMONIAL INQUIRY.  OF COURSE NO FORM OF WORDS IS NECESSARY TO CLAIM
ONE'S PRIVILEGE.  CIRCUMSTANCES MAY ESTABLISH SUCH A CLAIM.  BUT THERE
MUST BE SOME MANIFESTATION OF SURRENDER OF THE PRIVILEGE.  THE
PROSECUTOR'S INSISTENCE UPON DISCLOSURE WHICH, BUT FOR IMMUNITY FROM
PROSECUTION, COULD BE WITHHELD IS THAT FOR WHICH ALONE THE IMMUNITY IS
GIVEN.  HISTORY AND REASON ALIKE REJECT THE NOTION THAT IMMUNITY FROM
PROSECUTION IS TO BE SQUANDERED BY GIVING IT GRATUITOUSLY FOR
RESPONDING TO THE DUTY, OWED BY EVERYONE, TO APPEAR WHEN SUMMONED AS A
WITNESS. 

SINCE THE DEMURRERS TO THE PLEAS SHOULD HAVE BEEN SUSTAINED, THE CASE
SHOULD BE REMANDED TO THE DISTRICT COURT FOR APPROPRIATE DISPOSITION IN
ACCORDANCE WITH THE VIEWS HEREIN EXPRESSED. 

FN1  DEBATE IN THE HOUSE OF LORDS ON THE BILL TO INDEMNIFY EVIDENCE,
12 HANSARD'S PARLIAMENTARY HISTORY OF ENGLAND, 675, 693, MAY 25, 1742,
QUOTED IN 8 WIGMORE ON EVIDENCE (3D ED.)  P. 64, SEC. 2192. 

FN2  IT IS SIGNIFICANT THAT THE HEIKE CASE, IN WHICH THIS COURT HELD
THERE WAS "NO REASON FOR SUPPOSING THAT THE (IMMUNITY) ACT OFFERED A
GRATUITY TO CRIME," 227 U.S. AT 142, WAS CITED NEITHER BY THE COURT
BELOW IN THIS CASE, NOR BY JUDGE HUTCHESON IN THE PARDUE CASE, 294 F.
543, NOR IN ANY OF THE CASES FOLLOWING THE PARDUE RULING, UNITED STATES
V. WARD, 295 F. 576, UNITED STATES V. MOORE, 15 F.2D 593, AND UNITED
STATES V. GOLDMAN, 28 F.2D 424. 

MR. JUSTICE DOUGLAS JOINS IN THIS DISSENT. 
..END :





HARRIS V. ZION'S BANK CO., 317 U.S. 447 


NO. 268.  ARGUED DECEMBER 17, 1942.  - DECIDED JANUARY 11, 1943.  - 127
F.2D 1012, AFFIRMED. 


1.  WITHOUT LEAVE OF THE STATE COURT WHICH APPOINTED HIM AND WHICH HAS
JURISDICTION OVER HIM, AN ADMINISTRATOR MAY NOT REVIVE A PROCEEDING
INSTITUTED BY HIS DECEDENT UNDER SEC. 75 OF THE BANKRUPTCY ACT, NOR
INITIATE PROCEEDINGS TO HAVE THE ESTATE ADJUDGED BANKRUPT AND FOR OTHER
RELIEF UNDER SEC. 75(S) OF THAT ACT.  P. 449. 

2.  NOTWITHSTANDING THE PROVISIONS OF SEC. 75(C) OF THE BANKRUPTCY
ACT PROVIDING THAT "A PETITION MAY BE FILED BY ANY FARMER" FOR THE
EXTENSION AND COMPOSITION OF HIS DEBTS, AND OF SEC. 75(R) DECLARING
THAT "FOR THE PURPOSES OF THIS SECTION,  ...  THE TERM 'FARMER'  ...
INCLUDES THE PERSONAL REPRESENTATIVE OF A DECEASED FARMER," WHERE THE
LAW OF A STATE PROHIBITS AN ADMINISTRATOR FROM DEALING WITH THE REAL
ESTATE, OR CONDITIONS HIS POWER SO TO DO, CONGRESS DID NOT INTEND TO
OVERRIDE THAT LAW AND CONFER UPON AN ADMINISTRATOR - A MANDATORY OF
STATE POWER - A PRIVILEGE AT WAR WITH THE LAW OF HIS OFFICIAL BEING. 
P. 450. 

3.  SECTION 8 OF THE BANKRUPTCY ACT IS INAPPLICABLE.  ORDER 50(9) OF
THE GENERAL ORDERS IN BANKRUPTCY HELD APPLICABLE.  P. 452. 

HARRIS, ADMINISTRATOR, V. ZION'S SAVINGS BANK & TRUST CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, POST, P. 609, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE PETITION OF AN ADMINISTRATOR TO REVIVE A PROCEEDING
UNDER SEC. 75 OF THE BANKRUPTCY ACT, AND REJECTING AN AMENDED PETITION
FOR RELIEF UNDER SEC. 75(S). 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

DECEMBER 20, 1937, ANNA L. HARRIS FILED HER PETITION FOR RELIEF UNDER
SEC. 75 OF THE BANKRUPTCY ACT  FN1  IN THE DISTRICT COURT FOR UTAH. 
SHE MADE AN OFFER OF COMPOSITION AND, WHILE THIS OFFER WAS PENDING, SHE
DIED.  JANUARY 16, 1939, THE BANKRUPTCY COURT ORDERED THE PROCEEDING
ABATED BECAUSE OF HER DEATH.  MARCH 30, 1939, THE PETITIONER WAS
APPOINTED ADMINISTRATOR OF HER ESTATE. 

THEREAFTER THE RESPONDENT INSTITUTED A FORECLOSURE PROCEEDING UPON A
MORTGAGE ON REAL ESTATE OF THE DECEDENT, OBTAINED A JUDGMENT, AND,
AUGUST 1, 1939, PURCHASED THE MORTGAGED PREMISES AT FORECLOSURE SALE
AND RECEIVED A SHERIFF'S CERTIFICATE. 

FEBRUARY 13, 1940, TWO DAYS BEFORE THE PERIOD OF REDEMPTION EXPIRED,
THE PETITIONER, AS ADMINISTRATOR, SECURED LEAVE FROM THE PROBATE COURT
TO APPLY, AS THE DECEDENT'S PERSONAL REPRESENTATIVE, FOR AN ORDER
REVIVING THE DEBTOR PROCEEDINGS.  THE PROBATE COURT'S DECREE WAS STAYED
PENDING AN APPEAL TO THE SUPREME COURT OF UTAH.  NOTWITHSTANDING THE
STAY, THE PETITIONER APPLIED TO THE BANKRUPTCY COURT FOR A REVIVOR. 

THE UTAH SUPREME COURT REVERSED THE DECREE OF THE PROBATE COURT,
HOLDING THAT, UNDER THE PROBATE CODE, THE COURT HAD NO AUTHORITY TO
AUTHORIZE THE ADMINISTRATOR TO PETITION THE FEDERAL COURT UNDER SEC.
75.  FN2  THIS COURT GRANTED CERTIORARI TO REVIEW THE JUDGMENT  FN3
BUT, AFTER HEARING, DISMISSED THE WRIT ON THE GROUND THAT THE DECISION
RESTED ON AN ADEQUATE NON-FEDERAL GROUND.  FN4 

PENDING HEARING IN THIS COURT, THE PETITIONER, ON SEPTEMBER 18, 1940,
LODGED WITH THE CLERK OF THE BANKRUPTCY COURT AN AMENDED PETITION TO BE
ADJUDGED A BANKRUPT UNDER SUBSECTION (S) OF SEC. 75.  THE COURT ORDERED
THAT THE PAPER BE NOT FILED AND ALSO ORDERED THAT THE PETITIONER SHOW
CAUSE WHY HIS REVIVOR PETITION SHOULD NOT BE DISMISSED.  AUGUST 29,
1941, THE RESPONDENT MOVED TO STRIKE BOTH THE ORIGINAL AND AMENDED
PETITION.  SEPTEMBER 30, 1941, THE DISTRICT JUDGE ENTERED AN ORDER
DISMISSING THE ADMINISTRATOR'S PETITION TO REVIVE AND REJECTING THE
AMENDED PETITION. 

OCTOBER 10, 1941, THE PETITIONER SOUGHT LEAVE OF THE PROBATE COURT TO
APPEAL FROM THE BANKRUPTCY COURT'S ORDER OF DISMISSAL AND REJECTION. 
THE PRAYER WAS DENIED, AND THE COURT HELD THAT THE PETITIONER SHOULD
NOT BE AUTHORIZED TO APPEAL.  THE PETITIONER, NEVERTHELESS, APPEALED TO
THE CIRCUIT COURT OF APPEALS, WHICH AFFIRMED THE DISTRICT COURT'S
ACTION.  FN5 

SUBSECTION (C) OF SEC. 75 PROVIDES:  "  ...  A PETITION MAY BE FILED
BY ANY FARMER" FOR THE EXTENSION AND COMPOSITION OF HIS DEBTS. 
SUBSECTION (R) DECLARES:  "FOR THE PURPOSE OF THIS SECTION  ...  THE
TERM 'FARMER'  ...  INCLUDES THE PERSONAL REPRESENTATIVE OF A DECEASED
FARMER; ...  " 

THE QUESTION IS WHETHER AN ADMINISTRATOR MAY, IN HIS REPRESENTATIVE
CAPACITY, INITIATE SUCH PROCEEDINGS WITHOUT LEAVE OF THE COURT WHICH
APPOINTED HIM AND HAS JURISDICTION OVER HIM, OR MAY DO SO WHERE, AS
HERE, HE HAS APPLIED FOR LEAVE AND BEEN DENIED IT.  THE IMPORTANCE OF
THIS QUESTION, AND A DIVERSITY OF VIEWS AMONGST THE FEDERAL COURTS,
FN6  LED US TO GRANT CERTIORARI. 

PUT ANOTHER WAY, THE QUESTION IS:  IF THE LAW OF A STATE PROHIBITS AN
ADMINISTRATOR FROM DEALING WITH THE REAL ESTATE, OR CONDITIONS HIS
POWER SO TO DO, DID CONGRESS INTEND TO OVERRIDE THAT LAW AND CONFER
UPON THIS MANDATORY OF STATE POWER A PRIVILEGE AT WAR WITH THE LAW OF
HIS OFFICIAL BEING?  WE MUST MEET THAT QUESTION IN THIS CASE, FOR THE
SUPREME COURT OF UTAH HAS TOLD US THAT, UNDER THE LAW OF THAT STATE,
THE PETITIONER HAS NO SUCH POWER.  IF SUCH HE POSSESSES, IT DERIVES
FROM A LAW WHICH OVERRIDES THE LAW OF THE PETITIONER'S OFFICIAL
CREATION. 

LAYING ASIDE ANY ISSUE OF CONSTITUTIONAL POWER, THE QUESTION REMAINS
WHETHER CONGRESS INTENDED SO TO OVERRIDE THE LAW OF A STATE AND CONFER
ON THE STATE'S APPOINTEE, AS PERSONA DESIGNATA, A FUNCTION TO BE
EXERCISED NOT FOR THE DECEASED FARMER, NOT FOR THE DECEDENT'S ESTATE,
THE ENTITY HE REPRESENTS UNDER STATE LAW, NOT FOR THE HEIRS WHO INHERIT
THE REALTY, BUT IN A VACUUM? 

WHEN WE REFLECT THAT THE SETTLEMENT AND DISTRIBUTION OF DECEDENTS'
ESTATES, AND THE RIGHT TO SUCCEED TO THE OWNERSHIP OF REALTY AND
PERSONALTY ARE PECULIARLY MATTERS OF STATE LAW; THAT THE FEDERAL COURTS
HAVE NO PROBATE JURISDICTION AND HAVE SEDULOUSLY REFRAINED, EVEN IN
DIVERSITY CASES, FROM INTERFERING WITH THE OPERATIONS OF STATE
TRIBUNALS INVESTED WITH THAT JURISDICTION, WE NATURALLY INCLINE TO A
CONSTRUCTION OF SEC. 75 CONSISTENT WITH THESE PRINCIPLES.  WE THINK THE
BENEFICENT PURPOSE OF THE LEGISLATION WILL NOT BE DEFEATED BY SUCH A
CONSTRUCTION. 

THE SECTION IS A MANIFESTATION OF THE ENLARGED CONCEPTION OF THE
BANKRUPTCY POWER AS EXTENDING NOT ALONE TO A SEIZURE OF AN INSOLVENT
DEBTOR'S ASSETS IN THE INTEREST OF AN IMPARTIAL APPLICATION OF THEM TO
HIS CREDITOR'S DEMANDS, BUT ALSO AS A MEANS OF RELIEVING HIS DISTRESS
AND REHABILITATING HIM FINANCIALLY WHILE RENDERING HIS CREDITORS ALL
FOR WHICH THEY MAY REASONABLY HOPE.  FN7 

SO THE OPPORTUNITY OF RESORT TO SEC. 75 ENURES NOT TO CREDITORS BUT
TO THE DEBTOR.  HIS VOLUNTARY ACTION, NOT THEIRS, DETERMINES WHETHER
THE LAW SHALL BE INVOKED.  CONGRESS EXTENDED HIM A PRIVILEGE WHICH HE
COULD EXERCISE OR RENOUNCE.  BY THE PROVISION THAT THE TERM "FARMER"
SHOULD INCLUDE A PERSONAL REPRESENTATIVE, CONGRESS EXTENDED THAT
PRIVILEGE TO AN ADMINISTRATOR.  BUT, CLEARLY, IF THAT FUNCTIONARY
ELECTS NOT TO AVAIL HIMSELF OF THE PRIVILEGE, THE SECTION IS, AS TO
HIM, INOPERATIVE.  MOREOVER, IF HIS ELECTION DEPENDS, UNDER THE LAW OF
HIS BEING, NOT ALONE ON HIS CHOICE BUT UPON THE EXERCISE OF THE CHOICE
OF HIS MASTER, THE STATE WHICH GAVE HIM OFFICIAL LIFE, AND UNDER WHOSE
TUTELAGE HE IS, THEN THE DOOR OF THE BANKRUPTCY COURT IS OPEN TO HIM
ONLY WHEN THAT CHOICE HAS BEEN EXERCISED IN THE ONLY WAY HE CAN
EXERCISE IT. 

IN THIS VIEW, CONGRESS HAS EXTENDED THE BENEFITS OF THE ACT ONLY TO
ADMINISTRATORS WHO CAN LAWFULLY ELECT TO AVAIL OF THEM.  THUS CONFLICT
BETWEEN FEDERAL AND STATE POWER IS AVOIDED AND THE TWO ARE
ACCOMMODATED. 

THE OPINION OF THE SUPREME COURT OF UTAH POINTS OUT SOME OF THE MANY
INCONSISTENCIES AND DIFFICULTIES AN OPPOSITE CONCLUSION WOULD ENTAIL. 
UNDER THE LAW OF THE STATE, REALTY DESCENDS DIRECTLY TO THE HEIRS.  THE
ADMINISTRATOR DOES NOT REPRESENT THEM.  IN RESORTING TO SEC. 75 HE MAY,
OR MAY NOT, BE ACTING IN THEIR TRUE INTERESTS.  THE LAW OF THE STATE
DEMANDS THE SPEEDY SETTLEMENT OF THE ESTATE.  IF, INDEPENDENTLY OF THAT
LAW, THE ADMINISTRATOR MAY APPLY UNDER SEC. 75, IT MAY WELL HAPPEN THAT
THIS STATE POLICY WILL BE NULLIFIED.  IN OTHER STATES, AN ADMINISTRATOR
MAY SUCCEED TO THE REALTY ABSOLUTELY OR IN SUCH MEASURE AND FOR SUCH
PURPOSE THAT NO STATE POLICY WOULD BE CONTRAVENED BY RESORT TO SEC.
75.  BUT, IN ANY CASE, THE INTERESTS OF THOSE ENTITLED TO INHERIT OUGHT
TO BE CONSIDERED BEFORE CHOICE OF ACTION IS DETERMINED.  THE PROBATE
COURT, NOT THE BANKRUPTCY COURT, IS THE APPROPRIATE FORUM FOR WEIGHING
THE RESPECTIVE BENEFITS OR DETRIMENTS TO THOSE WHO SHARE IN THE EQUITY
OF THE DECEDENT'S ESTATE. 

WE CANNOT ACCEPT THE VIEW THAT SEC. 8 OF THE BANKRUPTCY ACT  FN8
GOVERNS.  THAT PROVISION WAS PART OF THE ACT OF 1898 AND LOOKED ONLY TO
PROCEEDINGS WHEREIN TITLE TO THE ASSETS WAS TRANSFERRED FROM THE
BANKRUPT AS OF THE DATE OF PETITION AND VESTED IN A TRUSTEE, AND
WHEREIN THE ASSETS WERE TO BE LIQUIDATED PROMPTLY AND THE PROCEEDS
DISTRIBUTED AMONGST CREDITORS.  IN OTHER WORDS, THE PURPOSE AND EFFECT
OF THE PROCEEDING IN BANKRUPTCY AND THAT IN THE PROBATE COURT WERE THE
SAME.  UNDER SEC. 75 THEY ARE OR MAY BE AT WAR, THE ONE PREVENTING THE
LIQUIDATION WHICH IS THE CHIEF AIM OF THE OTHER.  IN OTHER RESPECTS
SEC. 8 IS INAPPLICABLE.  WHY, IN A CASE LIKE THIS, SHOULD THE HEIRS,
THE OWNERS OF THE EQUITY IN REAL ESTATE, BE MADE PARTIES AGAINST THEIR
WILL?  FN9 

CONGRESS, WHEN THE MATTER HAS COME TO ITS ATTENTION, HAS EXPRESSLY
RECOGNIZED THAT IF A MORATORIUM PROCEEDING SUCH AS THIS IS TO BE
BROUGHT OR REVIVED BY AN ADMINISTRATOR, HE OUGHT TO OBTAIN LEAVE FROM
THE PROBATE COURT.  SO SEC. 74, AS AMENDED, PROVIDES.  FN10  WE THINK
THE SAME INTENT SHOULD BE IMPLIED AS TO SEC. 75. 

WE BELIEVE THAT IT WAS WITH THESE CONSIDERATIONS IN MIND THAT THIS
COURT ADOPTED ORDER 50(9) OF THE GENERAL ORDERS IN BANKRUPTCY.  FN11
THAT ORDER PROVIDES THAT THE PERSONAL REPRESENTATIVE OF A FARMER SHALL
ANNEX TO HIS PETITION FILED UNDER SEC. 75, AMONGST OTHER THINGS, A COPY
OF THE ORDER OF THE PROBATE COURT AUTHORIZING HIM TO FILE THE
PETITION.  THE COURT BELOW THOUGHT THE GENERAL ORDER APPLICABLE AND
FELT BOUND TO APPLY IT.  IT IS SUGGESTED THAT THIS PORTION OF THE ORDER
IS VOID AS RUNNING COUNTER TO THE CLEAR MANDATE OF THE STATUTE.  AND SO
IT WOULD BE IF THE ACT CONFERRED UPON THE ADMINISTRATOR THE RIGHT,
NOTWITHSTANDING STATE LAW, TO INVOKE THE BANKRUPTCY POWERS.  BUT THE
RULE COMPORTS WITH WHAT WE HAVE ENDEAVORED TO SHOW IS THE NATURAL AND
REASONABLE CONSTRUCTION OF SEC. 75.  IF THE STATE LAW PERMITS RESORT TO
THE REMEDY AFFORDED BY THE SECTION, NO DIFFICULTY WILL BE CREATED BY
REQUIRING THE OBTAINING OF SUCH AN ORDER.  IF IT FORBIDS, THEN NO
CONFLICT BETWEEN THE POLICIES OF STATE AND NATION WILL ARISE. 

THE JUDGMENT IS AFFIRMED. 

FN1  11 U.S.C. SEC. 203. 

FN2  IN RE HARRIS' ESTATE, 99 UTAH 464, 105 P.2D 461. 

FN3  312 U.S. 670. 

FN4  HARRIS V. ZION'S SAVINGS BANK & TRUST CO., 313 U.S. 541. 

FN5  127 F.2D 1012. 

FN6  COMPARE IN RE BUXTON'S ESTATE, 14 F.SUPP.  616; IN RE REYNOLDS,
21 F.SUPP.  369; LEMM V. NORTHERN CALIFORNIA NATIONAL BANK, 93 F.2D
709; HINES V. FARKAS, 109 F.2D 289. 

FN7  LOCAL LOAN CO. V. HUNT, 292 U.S. 234, 244; CONTINENTAL ILLINOIS
NATIONAL BANK & T. CO. V. CHICAGO, R.I. & P. RY. CO., 294 U.S. 648, 667
675; UNITED STATES V. BEKINS, 304 U.S. 27, 47; WRIGHT V. UNION CENTRAL
LIFE INS. CO., 304 U.S. 502, 514; WRIGHT V. UNION CENTRAL LIFE INS.
CO., 311 U.S. 273, 279. 

FN8  11 U.S.C. SEC. 26. 

FN9 SEE SHUTE V. PATTERSON, 147 F. 509. 

FN10  11 U.S.C. SEC. 202. 

FN11  GENERAL ORDERS IN BANKRUPTCY OF JANUARY 16, 1939, 305 U.S. 681,
11 U.S.C.A. FOLLOWING SEC. 53. 

MR. JUSTICE DOUGLAS, DISSENTING: 

SEC. 75(R) INCLUDES "THE PERSONAL REPRESENTATIVE OF A DECEASED
FARMER" WITHIN THE DEFINITION OF "FARMER" AS THAT TERM IS USED IN THE
ACT.  SEC. 75(N) PROVIDES THAT IN THESE PROCEEDINGS "THE JURISDICTION
AND POWERS OF THE COURTS, THE TITLE, POWERS, AND DUTIES OF ITS
OFFICERS, THE DUTIES OF THE FARMER, AND THE RIGHTS AND LIABILITIES OF
CREDITORS, AND OF ALL PERSONS WITH RESPECT TO THE PROPERTY OF THE
FARMER  ...  SHALL BE THE SAME AS IF A VOLUNTARY PETITION FOR
ADJUDICATION HAD BEEN FILED AND A DECREE OF ADJUDICATION HAD BEEN
ENTERED ON THE DAY WHEN THE FARMER'S PETITION, ASKING TO BE ADJUDGED A
BANKRUPT" WAS FILED.  SINCE THAT PROVISION RELATES TO THE "JURISDICTION
AND POWERS" OF THE BANKRUPTCY COURT AS WELL AS TO THE "RIGHTS AND
LIABILITIES" OF CREDITORS AND "OF ALL PERSONS" WITH RESPECT TO THE
PROPERTY, I DO NOT SEE HOW WE CAN ESCAPE THE CONCLUSION THAT IT
INCORPORATES SEC. 8 OF THE BANKRUPTCY ACT.  PRACTICALLY IDENTICAL
PROVISIONS IN OLD SEC. 74(M), DEALING WITH COMPOSITIONS AND EXTENSIONS,
WERE HELD TO HAVE THAT EFFECT.  IN RE MORGAN, 15 F.SUPP.  52.  CF.
BENITEZ V. ANCIANI, 127 F.2D 121.  THE FUNCTION AND PURPOSE OF SEC. 74
AND SEC. 75 ARE COMPARABLE.  NO REASON IS APPARENT WHY A DIFFERENT
RESULT SHOULD OBTAIN UNDER SEC. 75.  SEC. 8 OF THE BANKRUPTCY ACT
STATES THAT DEATH OF A BANKRUPT "SHALL NOT ABATE THE PROCEEDINGS, BUT
THE SAME SHALL BE CONDUCTED AND CONCLUDED IN THE SAME MANNER, SO FAR AS
POSSIBLE, AS THOUGH HE HAD NOT DIED."  THAT SECTION "MAKES NO EXCEPTION
OR QUALIFICATION - AFTER THE PROCEEDINGS HAVE BEEN COMMENCED THEY ARE
NOT TO BE ABATED BY DEATH."  HULL V. DICKS, 235 U.S. 584, 588.  IT HAS
LONG BEEN CONSIDERED MANDATORY.  SHUTE V. PATTERSON, 147 F. 509; 1
COLLIER, BANKRUPTCY (14TH ED.)  SEC.  8.02.  ON DEATH OF A BANKRUPT
WHERE HIS PERSONAL REPRESENTATIVE SUCCEEDS TO THE PERSONALTY AND HIS
HEIRS TO THE REALTY, THE PROPER PROCEDURE IS TO MAKE THEM PARTIES. 
SHUTE V. PATTERSON, SUPRA, P. 512; BENITEZ V. ANCIANI, SUPRA, P. 125. 
AND SEE IN RE SCHWAB, 83 F.2D 526.  AND THE DEATH OF A BANKRUPT DOES
NOT PREVENT HIS DISCHARGE (COLLIER, LOC.  CIT.)  AT THE INSTANCE OF THE
ADMINISTRATOR.  IN RE AGNEW, 225 F. 650. 

IF THIS HAD BEEN AN ORDINARY BANKRUPTCY CASE, THERE CAN BE NO DOUBT
THAT THE PERSONAL REPRESENTATIVE OF THIS DECEDENT WOULD HAVE BEEN
ENTITLED TO COME IN, THAT THE HEIRS COULD HAVE BEEN JOINED, AND THAT A
DISCHARGE COULD HAVE BEEN OBTAINED, PROVIDED THE REQUIREMENTS OF SEC.
14 WERE MET.  THE FACT THAT THE PROCEEDING IS UNDER SEC. 75 SHOULD NOT
MAKE A DIFFERENCE.  CONGRESS HAS SPECIFICALLY STATED THAT A "PERSONAL
REPRESENTATIVE" OF A FARMER MAY EMPLOY THE MACHINERY OF SEC. 75.  THE
OFFER OF COMPOSITION MADE BY THE DECEDENT BEFORE HER DEATH MIGHT OR
MIGHT NOT HAVE BEEN ACCEPTED.  BUT EVEN THOUGH IT WERE REJECTED,
SUBSECTION (S) AFFORDS AN ALTERNATIVE FORM OF RELIEF, ONE BENEFIT OF
WHICH IS A DISCHARGE.  SEC. 75(S)(3); WRIGHT V. UNION CENTRAL LIFE INS.
CO., 311 U.S. 273.  I THINK IT CLEAR THAT SEC. 75 WAS DESIGNED TO
AFFORD TO THE ESTATE THE OPPORTUNITY TO OBTAIN THESE BENEFITS.  THOSE
BENEFITS MAY BE JUST AS CONSIDERABLE AS THEY WOULD BE IN ORDINARY
BANKRUPTCY.  THE FACT THAT THE HEIRS WOULD BE HELD AT BAY IS NO MORE
SIGNIFICANT IN THIS INSTANCE THAN IT IS IN OTHER APPLICATIONS OF SEC. 8
OF THE BANKRUPTCY ACT.  TO BE SURE, TITLE TO THE PROPERTY VESTS IN THE
TRUSTEE IN ORDINARY BANKRUPTCY.  BUT THAT CIRCUMSTANCE HAS NO RELEVANCY
TO THE SCOPE OF THE JURISDICTION OF THE BANKRUPTCY COURT UNDER SEC. 75
WHICH IS IN ISSUE HERE AND WHICH WE RECENTLY STATED WAS "EXCLUSIVE,"
CARRYING WITH IT "COMPLETE AND SELF-EXECUTING STATUTORY EXCLUSION OF
ALL OTHER COURTS."  KALB V. FEUERSTEIN, 308 U.S. 433, 443. 
FURTHERMORE, CONGRESS HAS NOT MADE PARTICIPATION OF THE PERSONAL
REPRESENTATIVE DEPENDENT ON AUTHORIZATION FROM THE STATE PROBATE
COURT.  UNDER OLD SEC. 74 IT DID.  THUS SEC. 74 AS AMENDED BY THE ACT
OF JUNE 7, 1934(48 STAT. 922, 11 U.S.C. 202A), AN ACT WHICH ALSO
CONTAINED CERTAIN AMENDMENTS TO SEC. 75(48 STAT. 924, 925), INCLUDED
"THE PERSONAL REPRESENTATIVE OF A DECEASED INDIVIDUAL FOR THE PURPOSE
OF EFFECTING SETTLEMENT OR COMPOSITION WITH THE CREDITORS OF THE
ESTATE:  PROVIDED, HOWEVER, THAT SUCH PERSONAL REPRESENTATIVE SHALL
FIRST OBTAIN THE CONSENT AND AUTHORITY OF THE COURT WHICH HAS ASSUMED
JURISDICTION OF SAID ESTATE, TO INVOKE THE RELIEF PROVIDED" BY THAT
ACT.  NO SUCH QUALIFICATION APPEARS IN SEC. 75.  ITS ABSENCE THERE AND
ITS PRESENCE IN SEC. 74 CLEARLY INDICATE THAT, WHERE CONGRESS WISHED TO
CURTAIL THE POWER OF BANKRUPTCY COURTS OVER ESTATES OF DECEDENTS AND TO
MAKE THE PARTICIPATION OF A PERSONAL REPRESENTATIVE DEPENDENT ON
AUTHORIZATION FROM THE STATE PROBATE COURT, IT SAID SO.  THE VIEW I
URGE WOULD OF COURSE RESULT IN A COLLISION BETWEEN THE BANKRUPTCY ACT
AND STATE PROBATE LAW.  BUT THAT IS NO MORE IMPORTANT HERE THAN WAS THE
COLLISION IN KALB V. FEUERSTEIN, SUPRA.  IN THIS CASE, AS IN OTHER
SITUATIONS (IN RE DEVLIN, 180 F. 170, 172) IT IS THE BANKRUPTCY ACT,
NOT LOCAL PROBATE LAW, WHICH MUST CONTROL THE ADMINISTRATION OF THE
ESTATE.  THE BANKRUPTCY POWER IS SUPREME.  SEC. 8 IS A VALID EXERCISE
OF THAT POWER.  THE RESULT IS THAT GENERAL ORDER 50(9) MUST GIVE WAY
INSOFAR AS IT IS INCONSISTENT WITH THIS RESULT.  FOR THOSE RULES ARE
INTENDED MERELY "TO EXECUTE THE ACT" (WEST CO. V. LEA, 174 U.S. 590,
599), NOT TO "AUTHORIZE ADDITIONS TO ITS SUBSTANTIVE PROVISIONS."  MEEK
V. CENTRE COUNTY BANKING CO., 268 U.S. 426, 434. 

MR. JUSTICE BLACK AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :



PUBLIC UTILITIES COMM'N V. GAS CO., 317 U.S. 456 


NO. 87.  ARGUED DECEMBER 8, 1942.  - DECIDED JANUARY 11, 1943.  - 46
F.SUPP.  309, AFFIRMED. 


UPON AN APPEAL TO THE PUBLIC UTILITIES COMMISSION OF OHIO FROM A
MUNICIPAL ORDINANCE ESTABLISHING, IN 1932, RATES FOR NATURAL GAS SOLD
IN THE CITY BY A LOCAL UTILITY, THE COMMISSION ASSERTED JURISDICTION TO
FIX THE RATES PAID BY THE LOCAL UTILITY TO AN UNAFFILIATED COMPANY FOR
NATURAL GAS TRANSPORTED AND SOLD IN INTERSTATE COMMERCE, AND, IN 1935,
ISSUED ORDERS PRELIMINARY TO FIXING SUCH RATES.  IN A SUIT IN EQUITY
BEGUN BY THE INTERSTATE COMPANY PRIOR TO, AND DECIDED SUBSEQUENTLY TO,
THE NATURAL GAS ACT OF 1938, THE FEDERAL DISTRICT COURT ENJOINED THE
ENFORCEMENT OF THE ORDERS.  THE STATE COMMISSION HAD HELD NO HEARING,
AND HAD MADE NO FINDINGS, WITH RESPECT TO THE LAWFULNESS OR
REASONABLENESS OF THE INTERSTATE RATES.  HELD: 

1.  CONSIDERATIONS OF EQUITY REQUIRE THE DETERMINATION HERE OF THE
QUESTION OF LOCAL LAW AS TO THE POWER OF THE STATE COMMISSION TO FIX
RETROACTIVELY THE RATES TO BE CHARGED BY THE INTERSTATE COMPANY FOR
NATURAL GAS TRANSPORTED AND SOLD IN INTERSTATE COMMERCE TO THE LOCAL
UTILITY.  P. 462. 

WHERE, AS HERE, NO STATE COURT RULING ON LOCAL LAW COULD SETTLE THE
FEDERAL QUESTIONS THAT NECESSARILY REMAIN, AND WHERE, AS HERE, THE
LITIGATION HAS ALREADY BEEN IN THE FEDERAL COURTS FOR AN INORDINATELY
LONG TIME, CONSIDERATIONS OF EQUITY REQUIRE THAT THE LITIGATION BE
BROUGHT TO AN END AS QUICKLY AS POSSIBLE. 

2.  UNDER THE LAW OF OHIO, THE STATE COMMISSION, IN THE CIRCUMSTANCES
OF THIS CASE, IS WITHOUT POWER TO FIX RETROACTIVELY THE RATES TO BE
CHARGED BY THE INTERSTATE COMPANY FOR NATURAL GAS SOLD IN INTERSTATE
COMMERCE TO THE LOCAL UTILITY.  P. 465. 

3.  THE POWER TO FIX RATES FOR NATURAL GAS TRANSPORTED AND SOLD IN
INTERSTATE COMMERCE HAS BEEN VESTED BY THE NATURAL GAS ACT OF 1938 IN
THE FEDERAL POWER COMMISSION EXCLUSIVELY.  P. 468. 

4.  THE NATURAL GAS ACT OF 1938 DOES NOT BAR A STATE COMMISSION, IN
THE APPROPRIATE EXERCISE OF ITS JURISDICTION, FROM COMPELLING THE
PRODUCTION OF DATA IN THE POSSESSION OF THE INTERSTATE COMPANY AND
RELEVANT TO THE PROCEEDING BEFORE THE COMMISSION.  P. 468. 

5.  THE INJUNCTION DECREE OF THE DISTRICT COURT CAN NOT, IN THE
CIRCUMSTANCES OF THIS CASE, BE SET ASIDE AS AN IMPROPER EXERCISE OF ITS
EQUITABLE JURISDICTION.  P. 468. 

6.  THE JOHNSON ACT OF MAY 14, 1934, IS INAPPLICABLE HERE.  P. 469. 

7.  THE DISTRICT COURT'S DECREE IS TO BE READ AS AN INJUNCTION
AGAINST ENFORCEMENT OF THE STATE COMMISSION'S ORDERS ONLY IN SO FAR AS
THEY ASSUME JURISDICTION TO FIX THE RATES TO BE CHARGED FOR NATURAL GAS
TRANSPORTED AND SOLD IN INTERSTATE COMMERCE.  P. 470. 

PUBLIC UTILITIES COMMISSION OF OHIO ET AL. V. UNITED FUEL GAS CO. ET
AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF OHIO. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES ENJOINING
ENFORCEMENT OF CERTAIN ORDERS OF THE STATE COMMISSION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A DECREE OF THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO ENJOINING THE ENFORCEMENT AGAINST APPELLEE,
UNITED FUEL GAS COMPANY (HEREAFTER CALLED UNITED), OF ORDERS MADE BY
THE PUBLIC UTILITIES COMMISSION OF OHIO, 46 F.SUPP.  309. 

THE FACTS ARE NOT IN DISPUTE.  THE PORTSMOUTH GAS COMPANY, A PUBLIC
UTILITY, SELLS NATURAL GAS AT RETAIL TO THE PEOPLE OF PORTSMOUTH,
OHIO.  IT PURCHASES ITS ENTIRE SUPPLY OF GAS FROM UNITED, A WEST
VIRGINIA CORPORATION.  THE GAS IS CONVEYED THROUGH PIPELINES IN A
CONTINUOUS FLOW FROM POINTS OF PRODUCTION IN WEST VIRGINIA AND KENTUCKY
INTO OHIO, AND THERE DELIVERED TO THE PORTSMOUTH GAS COMPANY.  ON
FEBRUARY 24, 1932, THE CITY OF PORTSMOUTH, UNDER THE AUTHORITY GIVEN IT
BY SEC. 614-44 OF THE OHIO GENERAL CODE, ESTABLISHED THE RATES TO BE
CHARGED TO PORTSMOUTH CONSUMERS FOR NATURAL GAS DISTRIBUTED BY THE
PORTSMOUTH GAS COMPANY.  THIS ORDINANCE DID NOT PURPORT TO FIX THE
CHARGES MADE BY UNITED FOR THE GAS SOLD TO THE PORTSMOUTH GAS COMPANY. 
CLAIMING THAT THE RATES FIXED BY THE CITY WERE UNREASONABLE AND UNJUST,
THE PORTSMOUTH GAS COMPANY CHALLENGED THE ORDINANCE BEFORE THE PUBLIC
UTILITIES COMMISSION OF OHIO.  THE COMMISSION FOUND THAT THE COMPLAINT
WAS JUSTIFIED, AND THAT REASONABLE AND JUST RATES SHOULD BE SUBSTITUTED
FOR THOSE PRESCRIBED BY THE ORDINANCE.  BUT IT ALSO FOUND THAT IT COULD
NOT DETERMINE SUCH RATES IN THE ABSENCE OF PROOF THAT THE CHARGES WHICH
UNITED EXACTED FROM THE PORTSMOUTH GAS COMPANY WERE JUST AND
REASONABLE.  THE COMMISSION RULED THAT THE SALE OF GAS BY UNITED TO THE
PORTSMOUTH GAS COMPANY FOR RESALE TO CONSUMERS IN PORTSMOUTH WAS A
PUBLIC UTILITY SERVICE WITHIN THE MEANING OF SEC. 614-2 OF THE OHIO
GENERAL CODE, AND THAT THE RATES TO BE CHARGED FOR SUCH SERVICE WERE
SUBJECT TO ITS JURISDICTION.  ACCORDINGLY, ON APRIL 18, 1935, THE
COMMISSION ORDERED THAT UNITED PREPARE AND PRESENT "ALL PERTINENT AND
RELEVANT TESTIMONY AND EXHIBITS TENDING TO PROVE A REASONABLE AND JUST
RATE TO BE CHARGED BY IT TO THE PORTSMOUTH GAS COMPANY FOR THE
FURNISHING OF NATURAL GAS FOR DISTRIBUTION WITHIN THE CITY OF
PORTSMOUTH, OHIO." 

UNITED THEREUPON FILED A PETITION FOR REHEARING WITH THE COMMISSION. 
THE PETITION ASSERTED THAT THE GAS SOLD BY UNITED TO THE PORTSMOUTH GAS
COMPANY WAS IN INTERSTATE COMMERCE, THAT THE TWO COMPANIES WERE WHOLLY
INDEPENDENT OF ONE ANOTHER, AND THAT THE COMMISSION THEREFORE WENT
BEYOND THE POWER OF THE STATE IN ASSERTING JURISDICTION TO FIX THE
RATES TO BE CHARGED FOR GAS SOLD BY UNITED TO THE PORTSMOUTH GAS
COMPANY.  UNITED RECOGNIZED, HOWEVER, THE AUTHORITY OF THE COMMISSION
TO COMPEL IT TO PRODUCE EVIDENCE IN ITS POSSESSION RELEVANT TO A
DETERMINATION OF JUST AND REASONABLE RATES TO BE CHARGED BY THE
PORTSMOUTH GAS COMPANY FOR GAS SOLD TO ITS CUSTOMERS.  THIS PROFFER OF
TESTIMONY BY UNITED, WHICH WAS NOT ACCEPTED BY THE COMMISSION, IS
RELEVANT TO THE DISPOSITION OF THIS CONTROVERSY:  "IT (UNITED) DOES NOT
QUESTION THE RIGHT OF SAID COMMISSION TO CALL UPON THIS PETITIONER FOR
SUCH EVIDENCE AND FACTS AS MAY BE IN ITS POSSESSION WHICH MAY SHOW OR
TEND TO SHOW WHAT WOULD BE A REASONABLE RATE TO BE CHARGED FOR GAS TO
THE CONSUMERS IN THE CITY OF PORTSMOUTH, AND IT OFFERS TO FURNISH TO
THE COMMISSION SUCH FACTS AND EVIDENCE AS MAY BE DESIRED, OR TO PERMIT
ANY OFFICERS OR AGENTS OF THE PUBLIC UTILITIES COMMISSION OF OHIO TO
ASCERTAIN SUCH FACTS AND EVIDENCE AS MAY BE DESIRED FROM ITS RECORDS
AND BOOKS FOR THE PURPOSE AFORESAID, BUT DENIES AND PROTESTS THE RIGHT
OR POWER OF SAID COMMISSION TO FIX THE RATES AT WHICH PETITIONER SHALL
SELL THE GAS WHICH IT TRANSPORTS INTO THE STATE OF OHIO AND DELIVERS TO
THE PORTSMOUTH GAS COMPANY." 

ON MAY 29, 1935, THE COMMISSION DENIED THIS PETITION.  ITS ORDER
EXPRESSLY REAFFIRMED ITS PREVIOUS ASSERTION OF JURISDICTION TO FIX THE
RATES TO BE CHARGED FOR THE SALE OF GAS BY UNITED TO THE PORTSMOUTH GAS
COMPANY.  FN1 

THIS SUIT TO RESTRAIN ENFORCEMENT OF THE TWO ORDERS OF THE COMMISSION
FOLLOWED.  IN ITS ORIGINAL BILL, FILED JULY 3, 1935, UNITED ALLEGED
THAT THE COMMISSION'S ORDERS WERE AN UNCONSTITUTIONAL ATTEMPT TO
REGULATE INTERSTATE COMMERCE; THAT COMPLIANCE WITH THE ORDERS WOULD
ENTAIL AN EXPENDITURE OF MORE THAN ONE HUNDRED THOUSAND DOLLARS IN
ORDER TO MAKE THE USUAL APPRAISALS REQUIRED IN DETERMINING A RATE BASE;
THAT DISOBEDIENCE TO THE ORDERS WOULD SUBJECT UNITED AND ITS AGENTS TO
FINES OF A THOUSAND DOLLARS A DAY.  THESE ALLEGATIONS WERE DENIED BY
THE COMMISSION.  BUT ON SEPTEMBER 23, 1935, THE PARTIES STIPULATED THAT
"IT WILL COST THE PLAINTIFF A SUBSTANTIAL SUM OF MONEY, IN EXCESS OF
THREE THOUSAND DOLLARS, TO COMPLY WITH THE COMMISSION'S ORDER." 

THE BILL WAS STILL PENDING AT THE TIME OF THE ENACTMENT OF THE
NATURAL GAS ACT OF JUNE 21, 1938, 52 STAT. 821, 15 U.S.C. SEC. 717, AND
THE RELEVANCE OF THAT STATUTE TO THE PRESENT CONTROVERSY WAS DULY SET
FORTH IN AN AMENDED BILL FILED MARCH 8, 1939.  THE SUIT DID NOT COME TO
ISSUE FOR MORE THAN TWO YEARS THEREAFTER.  THE DEATH OF ONE OF THE
MEMBERS OF THE DISTRICT COURT, NECESSITATING REARGUMENT AND
RECONSIDERATION OF THE CASE, MAY EXPLAIN, AT LEAST IN PART, WHY A CASE
OF SUCH PUBLIC IMPORTANCE SHOULD HAVE PROCEEDED AT SUCH A LEADEN-FOOTED
PACE.  FN2  IT WAS NOT UNTIL JANUARY 16, 1942, THAT THE DECREE NOW
UNDER REVIEW WAS ENTERED.  THE DISTRICT COURT HELD THAT, REGARDLESS OF
WHAT THE SITUATION MIGHT HAVE BEEN IN THE ABSENCE OF THE NATURAL GAS
ACT, THAT STATUTE DEPRIVED THE OHIO COMMISSION OF POWER TO REGULATE THE
RATES TO BE CHARGED FOR GAS TRANSPORTED AND SOLD IN INTERSTATE
COMMERCE.  AND SO THE COURT ENJOINED THE ENFORCEMENT OF THE
COMMISSION'S ORDERS AGAINST UNITED. 

THE COMMISSION CONTENDS THAT THE ISSUES OF THIS CASE LIE OUTSIDE THE
SCOPE OF THE NATURAL GAS ACT BECAUSE THE COMMISSION WAS CONCERNED WITH
THE ESTABLISHMENT OF RATES FOR THE SALE OF GAS BY UNITED TO PORTSMOUTH
GAS COMPANY PRIOR TO THE EFFECTIVE DATE OF THE FEDERAL ACT, AND, MORE
PARTICULARLY, TO FIX RATES RETROACTIVE TO FEBRUARY 24, 1932, WHEN THE
CITY OF PORTSMOUTH PRESCRIBED THE RATES FOR GAS SOLD TO CONSUMERS BY
THE PORTSMOUTH GAS COMPANY IN THE ORDINANCE WHICH GAVE RISE TO THE
PROCEEDINGS BEFORE THE COMMISSION.  THIS CONTENTION, IF CORRECT, WOULD
REQUIRE US TO CONSIDER WHETHER THE COMMERCE CLAUSE, OF ITS OWN FORCE,
INVALIDATED THE COMMISSION'S ASSERTION OF JURISDICTION OVER THE RATES
UPON GAS SHIPPED BY UNITED INTO OHIO. 

BUT WE MUST REJECT THE CONTENTION OF THE COMMISSION.  IT RESTS UPON
THE ASSUMPTION THAT UNDER THE OHIO LAW THE STATE COMMISSION CAN
RETROACTIVELY FIX THE RATES OF UNITED.  FOR IT MUST BE BORNE IN MIND
THAT THE ULTIMATE ISSUE IN THIS SUIT IS THE ASSERTION BY THE OHIO
COMMISSION IN 1935 OF POWER TO FIX APPELLEE'S RATES; THAT THE
COMMISSION HAS NOT YET EXERCISED THE POWER WHICH IT THUS ASSERTED; THAT
IT HAS NOT MADE THE INQUIRY AND THE FINDINGS WHICH MUST PRECEDE THE
ESTABLISHMENT OF NEW RATES; THAT UNITED HAS NOT POSTED ANY BOND TO
SECURE REFUNDS IT MIGHT BE ORDERED TO MAKE; THAT THE COMMISSION'S
JURISDICTION TO FIX UNITED'S RATES WAS DENIED BY THE DISTRICT COURT IN
ITS DECREE OF JANUARY 16, 1942; AND THAT, SO FAR AS RATES IN THE PAST
ARE CONCERNED, THE POWER OF THE OHIO COMMISSION (APART FROM ANY
LIMITATIONS IMPOSED BY FEDERAL LAW, WHETHER CONSTITUTIONAL OR
STATUTORY) IS DEPENDENT UPON THE AUTHORITY POSSESSED BY IT UNDER OHIO
LAW.  TO SUSTAIN THE COMMISSION ON THIS PHASE OF THE CASE WE WOULD HAVE
TO FIND THAT IT WAS THE LAW OF OHIO THAT THE COMMISSION HAD POWER TO
FIX RATES UPON GAS SOLD BY UNITED TO THE PORTSMOUTH GAS COMPANY WHICH
WOULD BE RETROACTIVE TO FEBRUARY 24, 1932, WHEN THE CITY OF PORTSMOUTH
PRESCRIBED THE RATES UPON GAS SOLD BY THE PORTSMOUTH GAS COMPANY TO ITS
CUSTOMERS. 

UNFORTUNATELY WE ARE NOT AIDED BY A FINDING OF THE LOWER COURT ON
THIS QUESTION OF STATE LAW.  SINCE THE DISTRICT COURT WAS COMPOSED OF
THREE OHIO JUDGES, THEY MAY PERHAPS HAVE TAKEN OHIO LAW ON THIS POINT
SO MUCH FOR GRANTED AS NOT TO REQUIRE STATEMENT.  UNDER ORDINARY
CIRCUMSTANCES WE WOULD PREFER TO LEAVE TO OTHERS THE TASK OF
FORMULATING LOCAL LAW.  BUT THIS CASE HAS ALREADY BEEN TOO LONG IN THE
FEDERAL COURTS, AND WE DO NOT THINK IT COMPORTS WITH THE PUBLIC
INTEREST TO REMIT THE CONTROVERSY FOR EXPLICIT FINDINGS BY THE DISTRICT
COURT AS TO THE POWER OF THE OHIO COMMISSION TO FIX RATES
RETROACTIVELY.  THE SITUATION HERE IS QUITE DIFFERENT FROM RAILROAD
COMM'N V. PULLMAN CO., 312 U.S. 496.  WHERE THE DISPOSITION OF A
DOUBTFUL QUESTION OF LOCAL LAW MIGHT TERMINATE THE ENTIRE CONTROVERSY
AND THUS MAKE IT UNNECESSARY TO DECIDE A SUBSTANTIAL CONSTITUTIONAL
QUESTION, CONSIDERATIONS OF EQUITY JUSTIFY A RULE OF ABSTENTION.  BUT
WHERE, AS HERE, NO STATE COURT RULING ON LOCAL LAW COULD SETTLE THE
FEDERAL QUESTIONS THAT NECESSARILY REMAIN, AND WHERE, AS HERE, THE
LITIGATION HAS ALREADY BEEN IN THE FEDERAL COURTS AN INORDINATELY LONG
TIME, CONSIDERATIONS OF EQUITY REQUIRE THAT THE LITIGATION BE BROUGHT
TO AN END AS QUICKLY AS POSSIBLE. 

THE PROCEEDING BEFORE THE STATE COMMISSION AROSE UNDER SEC. 614-44 ET
SEQ. OF THE OHIO GENERAL CODE (PAGE, 1926), DEALING WITH APPEALS TO THE
COMMISSION FROM MUNICIPAL ORDINANCES ESTABLISHING RATES TO BE CHARGED
BY LOCAL UTILITIES.  WHENEVER SUCH AN APPEAL IS TAKEN, AS IT WAS TAKEN
HERE BY THE PORTSMOUTH GAS COMPANY, THE COMMISSION IS REQUIRED TO HOLD
A HEARING.  SEC. 614-44.  IF, AFTER SUCH HEARING, THE COMMISSION FINDS
THAT THE RATE FIXED BY THE ORDINANCE IS UNJUST OR UNREASONABLE, IT MUST
DETERMINE THE JUST AND REASONABLE RATE TO BE CHARGED "DURING THE PERIOD
SO FIXED BY ORDINANCE  ...  AND ORDER THE SAME SUBSTITUTED FOR THE
(ORDINANCE) RATE  ...  " SEC. 614-46.  IT IS CLEAR THAT UNDER THIS
RATES IN LIEU OF THOSE FIXED BY THE ORDINANCE, AND CAN MAKE ITS ORDER
EFFECTIVE RETROACTIVELY BY ORDERING REFUNDS OF CHARGES IN EXCESS OF THE
SUBSTITUTED RATES.  IN RE COLUMBIA GAS & FUEL CO., 1941 REP. OHIO
P.U.C. 22; IN RE WHEELING ELECTRIC CO., 1941 ID. 69; IN RE EAST OHIO
GAS CO., 1939 ID. 15.  THE COMMISSION UNDOUBTEDLY HAS POWER, THEREFORE,
TO ESTABLISH A JUST AND REASONABLE RATE, RETROACTIVE TO FEBRUARY 24,
1932, FOR GAS SOLD BY THE PORTSMOUTH GAS COMPANY TO THE PEOPLE OF THAT
COMMUNITY. 

BUT WHETHER THE COMMISSION HAS SIMILAR POWER WITH RESPECT TO RATES
FOR GAS SOLD BY UNITED TO THE PORTSMOUTH GAS COMPANY - AND THAT IS THE
CONTROLLING INQUIRY HERE - IS AN ENTIRELY SEPARATE QUESTION.  SECTION
614-46 IS INAPPLICABLE BECAUSE THE RATES TO BE ESTABLISHED WOULD NOT BE
IN LIEU OF RATES FIXED BY ORDINANCE.  THE COMMISSION'S AUTHORITY TO
INQUIRE INTO THE REASONABLENESS OF THE RATES CHARGED BY UNITED FOR GAS
SOLD TO THE PORTSMOUTH GAS COMPANY IS TO BE FOUND IN SECS. 614-21 AND
614-23, WHICH PROVIDE AS FOLLOWS:  "UPON COMPLAINT IN WRITING, AGAINST
ANY PUBLIC UTILITY, BY ANY PERSON, FIRM OR CORPORATION, OR UPON THE
INITIATIVE OR COMPLAINT OF THE COMMISSION THAT ANY RATE  ...  IS IN ANY
RESPECT UNJUST UNREASONABLE, UNJUSTLY DISCRIMINATORY, OR UNJUSTLY
PREFERENTIAL OR IN VIOLATION OF LAW,  ...  THE COMMISSION SHALL NOTIFY
THE PUBLIC UTILITY" AND HOLD A HEARING.  IF, AFTER SUCH HEARING, THE
COMMISSION FINDS THAT THE RATE OR CHARGE IS UNJUST, UNREASONABLE, OR
OTHERWISE UNLAWFUL, IT MUST "FIX AND DETERMINE THE JUST AND REASONABLE
RATE, FARE, CHARGE, TOLL, RENTAL OR SERVICE TO BE THEREAFTER RENDERED,
CHARGED, DEMANDED, EXACTED OR COLLECTED FOR THE PERFORMANCE OR
RENDITION OF THE SERVICE, AND ORDER THE SAME SUBSTITUTED THEREFOR." 
SEC. 614-23.  THE STATUTE IN TERMS THUS GIVES THE COMMISSION POWER TO
PRESCRIBE SUCH RATES PROSPECTIVELY ONLY.  IF, AFTER NOTICE AND HEARING,
THE COMMISSION FINDS RATES TO BE UNLAWFUL, IT CAN THEN FIX THE JUST AND
REASONABLE RATES "TO BE THEREAFTER" CHARGED.  THE ESTABLISHMENT OF NEW
RATES MUST BE PRECEDED BY A FINDING THAT THE OLD RATES ARE UNJUST AND
UNREASONABLE, AND THE NEW RATES ARE PROSPECTIVE AS OF THE DATE THEY ARE
FIXED.  THERE IS NO BASIS IN THE STATUTE FOR CONCLUDING THAT THE
COMMISSION'S ORDERS CAN BE RETROACTIVE TO THE DATE WHEN THE
COMMISSION'S INQUIRY INTO THE RATES WAS BEGUN; ON THE CONTRARY, THE
EXPLICIT LANGUAGE OF THE STATUTE PRECLUDES SUCH A CONSTRUCTION. 

ITS ANNUAL REPORTS SHOW THAT THE COMMISSION HAS CONSISTENTLY FOLLOWED
WHAT WOULD SEEM TO BE THE PLAIN MANDATE OF THE STATUTE.  SEE, E.G., IN
RE AMHERST WATER WORKS CO., 1941 REP. OHIO P.U.C. 88; IN RE CINCINNATI
GAS & ELECTRIC CO., 1940 ID. 14; IN RE UNION GAS & ELECTRIC CO., 1936
ID. 67.  WHATEVER DOUBTS THERE MAY HAVE BEEN ABOUT THE MATTER APPEAR TO
HAVE BEEN REMOVED BY THE DECISION OF THE SUPREME COURT OF OHIO IN GREAT
MIAMI VALLEY TAXPAYERS ASSN. V. PUBLIC UTILITIES COMMISSION, 131 OHIO
ST. 285, 2 N.E.2D 777, WHICH AFFIRMED A RULING OF THE COMMISSION THAT
"IT WAS WITHOUT POWER TO MAKE A REFUND IN A PROCEEDING INSTITUTED UNDER
AND BY VIRTUE OF THE PROVISIONS OF SECTION 614-23, GENERAL CODE."  131
OHIO ST. 285, 286.  IT IS NOT SURPRISING, THEREFORE, THAT COUNSEL FOR
THE COMMISSION DID NOT CONTEND BEFORE US THAT THE COMMISSION HAS POWER
UNDER OHIO LAW TO ESTABLISH RETROACTIVELY JUST AND REASONABLE RATES TO
BE CHARGED BY UNITED FOR GAS SOLD TO THE PORTSMOUTH GAS COMPANY.  OUR
EXAMINATION OF THE RELEVANT OHIO MATERIALS CONVINCES US THAT THE
COMMISSION HAS NOT BEEN GIVEN SUCH AUTHORITY.    THE COMMISSION IN THIS
CASE HAS NOT YET DONE MORE THAN ASSERT ITS JURISDICTION OVER UNITED'S
RATES.  IT HAS NOT YET HELD A HEARING UPON THE REASONABLENESS OF
UNITED'S PRESENT RATES; IT HAS MADE NO FINDING WHETHER THESE RATES ARE
UNLAWFUL AND WHETHER NEW RATES SHOULD BE SUBSTITUTED; IT HAS NOT
ENTERED UPON AN INQUIRY TO DETERMINE WHAT RATES WOULD BE JUST AND
REASONABLE.  AS OF THE DATE OF THE ENACTMENT OF THE NATURAL GAS ACT,
THEREFORE, THE PROCEEDING BEFORE THE COMMISSION, SO FAR AS UNITED WAS
CONCERNED, WAS STILL IN AN EMBRYONIC STAGE.  AND WE CAN FIND NO
PROVISION OF OHIO LAW WHICH WOULD AUTHORIZE THE COMMISSION TO ENTER
ORDERS FIXING UNITED'S RATES RETROACTIVE TO ANY DATE PRIOR TO JUNE 21,
1938, WHEN THE FEDERAL ACT BECAME LAW.  THE COMMISSION'S ORDERS MUST BE
TREATED HERE, THEREFORE, FOR PURPOSES OF DETERMINING WHETHER THEY ARE
IN CONFLICT WITH FEDERAL LAW, CONSTITUTIONAL OR STATUTORY, AS IF THEY
HAD BEEN MADE AFTER THE ENACTMENT OF THE NATURAL GAS ACT.  THE CASE
CANNOT NOW BE DISPOSED OF ON THE BASIS THAT WOULD HAVE GOVERNED HAD IT
COME HERE IN 1935.  TO INQUIRE INTO THE POWERS THE COMMISSION HAD THAT
YEAR, OR ANY OTHER YEAR PRIOR TO THE ENACTMENT OF THE NATURAL GAS ACT
IN 1938, WOULD BE TO ASCERTAIN AN ABSTRACT QUESTION OF LAW.  THE
QUESTION WE ARE CALLED UPON TO DECIDE, AND IT IS THE ONLY QUESTION, IS
WHETHER THE DISTRICT COURT PROPERLY ENTERED THE DECREE UNDER REVIEW. 
THAT DECREE WAS ENTERED ON JANUARY 16, 1942, AFTER THE ENACTMENT OF THE
NATURAL GAS ACT, AND AFTER UNITED, IN FILING AN AMENDED BILL OF
COMPLAINT, BASED ITS CLAIM FOR RELIEF UPON THAT ACT.  IT IS FAMILIAR
DOCTRINE THAT AN APPEAL IN AN EQUITY SUIT OPENS UP INQUIRY AS OF THE
TIME OF THE ULTIMATE DECISION.  TO DECIDE THIS APPEAL ON THE BASIS OF A
LEGAL SITUATION THAT CEASED TO EXIST NOT ONLY PRIOR TO THE TAKING OF
THIS APPEAL BUT ALSO BEFORE ISSUE WAS FINALLY JOINED IN THE DISTRICT
COURT, WOULD BE TO MAKE A GRATUITOUS ADVISORY JUDGMENT.  IT IS THE CASE
THAT IS HERE NOW THAT MUST BE DECIDED, AND IT MUST BE DECIDED ON THE
BASIS OF THE CIRCUMSTANCES THAT EXIST NOW.  CF. VANDENBARK V. OWENS
ILLINOIS CO., 311 U.S. 538, 542-43, AND CASES THERE CITED. 

AND AS TO RATES EFFECTIVE IN THE FUTURE WE AGREE WITH THE DISTRICT
COURT THAT THE NATURAL GAS ACT OF 1938 GOVERNS.  CONGRESS BY THAT ACT,
THE CONSTITUTIONALITY AND SCOPE OF WHICH WE CANVASSED LAST TERM IN
FEDERAL POWER COMM'N V. PIPELINE CO., 315 U.S. 575, AND ILLINOIS GAS
CO. V. PUBLIC SERVICE CO., 314 U.S. 498, PREEMPTED THE REGULATORY
POWERS OVER THE TRANSPORTATION AND SALE OF NATURAL GAS IN INTERSTATE
COMMERCE.  SECTION 1, AFTER DECLARING THAT "FEDERAL REGULATION IN
MATTERS RELATING TO THE TRANSPORTATION OF NATURAL GAS AND THE SALE
THEREOF IN INTERSTATE AND FOREIGN COMMERCE IS NECESSARY IN THE PUBLIC
INTEREST," MAKES THE ACT APPLICABLE TO "THE TRANSPORTATION OF NATURAL
GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE OF
NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURAL-GAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE."  RATES AND CHARGES IN
CONNECTION WITH THE SALE OR TRANSPORTATION OF GAS IN INTERSTATE
COMMERCE ARE REQUIRED TO BE "JUST AND REASONABLE."  SEC. 4(A). 
COMPANIES SUBJECT TO THE ACT MUST, UNDER SEC. 4(C), FILE WITH THE
FEDERAL POWER COMMISSION SCHEDULES OF RATES AND CHARGES, AND NO CHANGES
IN SUCH SCHEDULES CAN BE MADE WITHOUT NOTICE TO THE COMMISSION AND THE
PUBLIC.  SEC. 4(D).  ACTING UPON EITHER ITS OWN MOTION OR COMPLAINT OF
A STATE OR MUNICIPALITY, OR A STATE REGULATORY BODY OR GAS DISTRIBUTING
COMPANY, THE COMMISSION CAN INQUIRE INTO THE LEGALITY OF RATES AND
CHARGES OF COMPANIES SUBJECT TO ITS JURISDICTION, AND CAN DETERMINE THE
JUST AND REASONABLE RATES AND CHARGES THEREAFTER TO BE OBSERVED.  SEC.
5(A). 

IT IS CLEAR, AS THE LEGISLATIVE HISTORY OF THE ACT AMPLY
DEMONSTRATES, THAT CONGRESS MEANT TO CREATE A COMPREHENSIVE SCHEME OF
REGULATION WHICH WOULD BE COMPLEMENTARY IN ITS OPERATION TO THAT OF THE
STATES, WITHOUT ANY CONFUSION OF FUNCTIONS.  THE FEDERAL POWER
COMMISSION WOULD EXERCISE JURISDICTION OVER MATTERS IN INTERSTATE AND
FOREIGN COMMERCE, TO THE EXTENT DEFINED IN THE ACT, AND LOCAL MATTERS
WOULD BE LEFT TO THE STATE REGULATORY BODIES.  CONGRESS CONTEMPLATED A
HARMONIOUS, DUAL SYSTEM OF REGULATION OF THE NATURAL GAS INDUSTRY -
FEDERAL AND STATE REGULATORY BODIES OPERATING SIDE BY SIDE, EACH ACTIVE
IN ITS OWN SPHERE.  SEE H. REP. NO. 2651, 74TH CONG., 2D SESS., PP. 1
3; H. REP. NO. 709, 75TH CONG., 1ST SESS., PP. 1-4; SEN. REP. NO. 1162,
75TH CONG., 1ST SESS. 

UPON THE UNDISPUTED FACTS IN THIS RECORD, UNITED IS PLAINLY SUBJECT
TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL POWER COMMISSION WITH
RESPECT TO THE RATES AND CHARGES FOR NATURAL GAS TRANSPORTED BY IT FROM
WEST VIRGINIA AND KENTUCKY TO OHIO.  AND, INDEED, IN COMPLIANCE WITH
THE ACT, UNITED HAS SUBMITTED ITSELF TO THE JURISDICTION OF THE FEDERAL
AGENCY AND FILED SCHEDULES OF ITS RATES AND CHARGES.  NO CHANGES IN
SUCH SCHEDULES CAN BE MADE WITHOUT NOTICE TO THE POWER COMMISSION. 
THAT COMMISSION, ON ITS OWN MOTION, CAN INQUIRE INTO THE LAWFULNESS OF
SUCH RATES; IF THE PUBLIC INTEREST SO REQUIRES, RATES FOUND TO BE JUST
AND REASONABLE MAY BE SUBSTITUTED.  IT IS INDISPUTABLE, THEREFORE, THAT
IF THE OHIO COMMISSION TODAY MADE THE ORDERS COMPLAINED OF IN THIS
SUIT, IT WOULD BE INTRUDING IN A DOMAIN RESERVED TO THE FEDERAL
REGULATORY BODY.  THE POWER TO FIX RATES FOR NATURAL GAS TRANSPORTED
AND SOLD IN INTERSTATE COMMERCE HAS BEEN ENTRUSTED SOLELY TO THE
FEDERAL POWER COMMISSION.  IT DOES NOT FOLLOW, OF COURSE, THAT THE ACT
BARS A STATE COMMISSION, IN THE APPROPRIATE EXERCISE OF ITS
JURISDICTION, FROM COMPELLING THE PRODUCTION OF EVIDENCE RELEVANT TO
THE PROCEEDING BEFORE IT.  BUT THE ORDERS BEFORE US WENT BEYOND THIS
LIMITED PURPOSE.  THEY UNDERTOOK TO ASSERT A JURISDICTION WHICH THE
STATE BODY DOES NOT POSSESS.  IN OUR CONCLUSION REGARDING OHIO LAW, WE
HOLD ONLY THAT THE ASSERTION OF POWER BY THE PUBLIC UTILITIES
COMMISSION OF OHIO MUST BE CONSTRUED IN THE LIGHT OF ITS AUTHORITY
UNDER THE OHIO STATUTES.  AND, AS THUS CONSTRUED, THE ORDER CANNOT BE
RECONCILED WITH THE ACTION OF CONGRESS IN ENACTING THE NATURAL GAS ACT
OF 1938.  BECAUSE THE ORDERS ARE NOT AN ASSERTION OF JURISDICTION TO
FIX THE RATES OF UNITED PRIOR TO THE ENACTMENT OF THE FEDERAL ACT, IT
IS UNNECESSARY TO DECIDE WHETHER, IN THE ABSENCE OF FEDERAL STATUTE,
THE STATE COULD SUCCESSFULLY ATTEMPT TO FIX THE RATES CHARGED BY AN
INTERSTATE NATURAL GAS COMPANY FOR GAS TRANSPORTED AND SOLD FROM ONE
STATE TO ANOTHER. 

SINCE THESE ORDERS ARE INVALID INSOFAR AS THEY IMPINGE UPON AN
AUTHORITY WHICH CONGRESS HAS NOW VESTED SOLELY IN THE FEDERAL POWER
COMMISSION, THE DECREE BELOW MUST STAND UNLESS WE CAN FAIRLY CONCLUDE
THAT IT WAS AN ABUSE OF DISCRETION FOR THE DISTRICT COURT TO GRANT
RELIEF BY WAY OF INJUNCTION.  IT IS PERHAPS UNNECESSARY AT THIS LATE
DATE TO REPEAT THE ADMONITION THAT THE FEDERAL COURTS SHOULD BE WARY OF
INTERRUPTING THE PROCEEDINGS OF STATE ADMINISTRATIVE TRIBUNALS BY USE
OF THE EXTRAORDINARY WRIT OF INJUNCTION.  BUT THIS, TOO, IS A RULE OF
EQUITY AND NOT TO BE APPLIED IN BLIND DISREGARD OF FACT.  AND WHAT ARE
THE COMMANDING CIRCUMSTANCES OF THE PRESENT CASE?  FIRST, AND MOST
IMPORTANT, THE ORDERS OF THE STATE COMMISSION ARE ON THEIR FACE PLAINLY
INVALID.  NO INQUIRY BEYOND THE ORDERS THEMSELVES AND THE UNDISPUTED
FACTS WHICH UNDERLIE THEM IS NECESSARY IN ORDER TO DISCOVER THAT THEY
ARE IN CONFLICT WITH THE FEDERAL ACT.  IF, THEREFORE, UNITED COMPLIES
WITH THESE ORDERS, IT WILL BE PUT TO THE EXPENDITURES INCIDENT TO
ASCERTAINING THE BASE FOR RATE-FIXING PURPOSES - EXPENSES WHICH MAY
ULTIMATELY BE BORNE BY THE CONSUMING PUBLIC AND WHICH CONGRESS, BY
CONFERRING EXCLUSIVE JURISDICTION UPON THE FEDERAL REGULATORY AGENCY,
NECESSARILY INTENDED TO AVOID.  IF UNITED DOES NOT COMPLY WITH THE
ORDERS, IT RUNS THE RISK OF INCURRING HEAVY FINES AND PENALTIES OR, AT
THE LEAST, IN PROVOKING NEEDLESS, WASTEFUL LITIGATION.  IN EITHER
EVENT, ENFORCEMENT OF THE COMMISSION'S ORDERS WOULD WORK INJURY NOT
ASSESSABLE IN MONEY DAMAGES, NOT ONLY TO THE APPELLEE BUT TO THE PUBLIC
INTEREST WHICH CONGRESS DEEMED IT WISE TO SAFEGUARD BY ENACTING THE
NATURAL GAS ACT.  IN THESE CIRCUMSTANCES, WE CANNOT SET ASIDE THE
DECREE OF THE DISTRICT COURT AS AN IMPROPER EXERCISE OF ITS EQUITABLE
JURISDICTION.  PETROLEUM CO. V. PUBLIC SERVICE COMMISSION, 304 U.S.
209, WAS A VERY DIFFERENT CASE.  THERE THE REGULATION OF INTRASTATE
RATES ALONE WAS INVOLVED, NO CONFLICT BETWEEN FEDERAL AND STATE
AUTHORITIES WAS IN ISSUE, AND THE APPEAL TO EQUITY SOUGHT TO ANTICIPATE
THE APPROPRIATE EXHAUSTION OF THE ADMINISTRATIVE PROCESS. 

TWO MINOR OBJECTIONS TO THE JURISDICTION OF THE COURT BELOW NEED NOT
DETAIN US LONG.  THE JOHNSON ACT OF MAY 14, 1934, 48 STAT. 775, 28
U.S.C. SEC. 41(1), IS INAPPLICABLE HERE BECAUSE THE ORDERS OF THE STATE
COMMISSION "INTERFERE WITH INTERSTATE COMMERCE" TO THE EXTENT THAT THEY
CONSTITUTE AN ATTEMPT TO REGULATE MATTERS IN INTERSTATE COMMERCE WHICH
CONGRESS HAS LODGED EXCLUSIVELY WITH THE FEDERAL POWER COMMISSION. 
AND, UNLIKE THE APPELLANT IN NATURAL GAS CO. V. SLATTERY, 302 U.S. 300,
310-11, UNITED EXHAUSTED ALL ADMINISTRATIVE REMEDIES AVAILABLE TO IT
BEFORE BRINGING THIS SUIT.  IN ITS PETITION FOR REHEARING, UNITED
REQUESTED THE STATE COMMISSION TO MODIFY ITS ORIGINAL ORDER OF APRIL
19, 1935, SO AS TO STRIKE OUT THOSE PORTIONS WHICH WE NOW HOLD TO BE IN
CONFLICT WITH THE FEDERAL ACT.  ONLY AFTER THE DENIAL OF THIS PETITION
DID UNITED SEEK RELIEF IN THE COURTS. 

AS WE CONSTRUE THE DECREE OF THE DISTRICT COURT, IT DOES NOT PREVENT
THE PUBLIC UTILITIES COMMISSION OF OHIO FROM REQUIRING UNITED TO
PRODUCE DATA IN ITS POSSESSION WHICH MAY BE RELEVANT TO A DETERMINATION
OF THE JUST AND REASONABLE RATES TO BE CHARGED BY THE PORTSMOUTH GAS
COMPANY FOR GAS SOLD TO THE CONSUMERS OF THAT CITY.  AS HAS ALREADY
BEEN NOTED, UNITED, IN ITS PETITION FOR REHEARING BEFORE THE
COMMISSION, OFFERED TO PRODUCE SUCH EVIDENCE.  AND APPARENTLY
THROUGHOUT THIS ENTIRE LITIGATION IT HAS HELD ITSELF READY TO DO SO.
THE ORDERS OF THE COMMISSION WERE ASSAILED ONLY INSOFAR AS THEY
SUBJECTED UNITED TO THE JURISDICTION OF THE STATE COMMISSION WITH
RESPECT TO RATES FOR GAS IMPORTED BY IT INTO OHIO.  WE THEREFORE READ
THE DECREE OF THE DISTRICT COURT AS AN INJUNCTION AGAINST ENFORCEMENT
OF THE OHIO COMMISSION'S ORDERS ONLY TO THE EXTENT THAT THIS ASSUMPTION
BY THE COMMISSION OF RATEMAKING POWER OVER UNITED HAS BEEN RESISTED. 
SO READ, THE DECREE IS AFFIRMED. 

FN1  "THE COMMISSION FURTHER FINDS THAT THE FURNISHING OF NATURAL GAS
BY THE UNITED FUEL GAS COMPANY TO THE PORTSMOUTH GAS COMPANY FOR RESALE
TO CONSUMERS WITHIN THE CITY OF PORTSMOUTH, OHIO, IS A PUBLIC UTILITY
SERVICE WITHIN THE MEANING OF SECTION 614-2, GENERAL CODE OF OHIO; THAT
THE RATES TO BE CHARGED THEREFOR ARE SUBJECT TO THE JURISDICTION OF
THIS COMMISSION; THAT SUCH JURISDICTION INCLUDES THE RIGHT TO REGULATE
THE RATE OR PRICE TO BE CHARGED FOR SUCH SERVICE, AND THAT THE EXERCISE
OF SUCH JURISDICTION IS NECESSARY FOR A DETERMINATION OF THE MATTERS
AND THINGS HEREIN AT ISSUE BEFORE THIS COMMISSION." 

FN2  THE BILL WAS FILED ON JULY 3, 1935, AND ON THE SAME DAY A
TEMPORARY RESTRAINING ORDER WAS ISSUED BY DISTRICT JUDGE HOUGH.  THE
CASE WAS SUBMITTED TO A DISTRICT COURT OF THREE JUDGES ON SEPTEMBER 23,
1935, BUT ON NOVEMBER 19, 1935, BEFORE IT WAS DECIDED, JUDGE HOUGH
DIED.  AN AMENDED COMPLAINT WAS FILED ON NOVEMBER 20, 1936, AND A
SECOND AMENDED COMPLAINT ON MARCH 8, 1939, TO WHICH ANSWER WAS MADE ON
APRIL 25, 1939.  A THIRD AMENDED COMPLAINT FILED ON APRIL 8, 1941, WAS
FOLLOWED ON APRIL 24, 1941, BY A MOTION TO DISMISS WHICH WAS DENIED ON
JULY 8, 1941.  ON JULY 28, 1941, AN APPLICATION FOR LEAVE TO FILE AN
ANSWER WAS MADE; THIS APPLICATION WAS GRANTED ON AUGUST 4, 1941, AND AN
ANSWER WAS FILED THE SAME DAY.  THE CAUSE HAVING FINALLY BEEN
SUBMITTED, THE DISTRICT COURT FILED AN OPINION ON OCTOBER 2, 1941,
FINDING THAT THE PLAINTIFF WAS ENTITLED TO INJUNCTIVE RELIEF.  AND ON
JANUARY 16, 1942, THE DECREE NOW UNDER REVIEW WAS ENTERED. 

THE 1942 ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS (P. 7) DISCLOSES THAT "THE MEDIAN TIME
WHICH ELAPSED FROM FILING TO DISPOSITION OF CIVIL CASES TERMINATED IN
THE DISTRICT COURTS DURING THE YEAR 1942, WHICH HAD BEEN TRIED TO COURT
OR JURY, EXCLUDING LAND CONDEMNATION, HABEAS CORPUS, AND FORFEITURE
PROCEEDINGS, WAS 10.7 MONTHS; AND FROM ISSUE TO TRIAL IT WAS 6.1
MONTHS.  ...  THIS COMPARES WITH PERIODS OF 10.2 MONTHS AND 5.3 MONTHS,
RESPECTIVELY, IN 1941." 

MR. JUSTICE BLACK DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE MURPHY CONCUR. 

AS A RESULT OF THIS DECISION, DELAYS INCIDENT TO OBTAINING A FEDERAL
INJUNCTION HAVE MADE WHOLLY FUTILE THE DILIGENT EFFORTS OF THE STATE OF
OHIO TO FIX REASONABLE GAS RATES FOR THE PEOPLE OF PORTSMOUTH, OHIO. 
FN1 I CANNOT AGREE WITH THE SUGGESTION IMPLIED HERE THAT THIS RESULTS
FROM ANY CAUSE OTHER THAN THE UNWARRANTED INTERPOSITION BY COURTS INTO
THE BUSINESS OF RATE MAKING.  CF. MCCART V. INDIANAPOLIS WATER CO., 302
U.S. 419, 435.  HERE EIGHT YEARS AFTER THE OHIO PUBLIC UTILITIES
COMMISSION MADE UNITED A PARTY DEFENDANT IN ORDER TO FIX RATES "TO BE
CHARGED" BY IT, OHIO IS TOLD THAT UNITED MAY KEEP ANY SUM COLLECTED, NO
MATTER HOW UNJUST OR UNREASONABLE THE RATES CHARGED MAY HAVE BEEN; AND
OHIO'S CITIZENS ARE DENIED THE RIGHT TO RECOUP POSSIBLE LOSSES BECAUSE
THE COMMISSION "HAS NOT MADE THE INQUIRY AND THE FINDINGS WHICH MUST
PRECEDE THE ESTABLISHMENT OF NEW RATES."  THERE IS ONE REASON, AND ONLY
ONE REASON, WHY THE COMMISSION HAS NOT MADE SUCH INQUIRY AND FINDINGS -
BEFORE ANY STEP COULD BE TAKEN TOWARD ESTABLISHING A FINAL RATE ORDER,
AND EVEN BEFORE A SINGLE WITNESS COULD BE HEARD, THIS FEDERAL
INJUNCTION STOPPED THE STATE COMMISSION IN ITS TRACKS.  HAD THE
COMMISSION PROCEEDED TO MAKE INQUIRY AND FINDINGS IN THE FACE OF THE
INJUNCTION IT WOULD HAVE RISKED THE POSSIBILITY THAT ITS MEMBERS,
AGENTS, AND ATTORNEYS COULD HAVE BEEN SEIZED AND FINED OR IMPRISONED
FOR CONTEMPT OF COURT.  EX PARTE YOUNG, 209 U.S. 123.  IF IT BE TRUE,
WHICH I THINK DUBIOUS, THAT UNDER OHIO LAW RATES CAN NEVER BE FIXED AS
OF THE DATE A PROCEEDING BEGINS EVEN THOUGH DELAYS ARE THE CONSEQUENCE
OF IMPROVIDENT FEDERAL INJUNCTIONS, SUCH A LEGAL SITUATION MAKES IT ALL
THE MORE ESSENTIAL THAT THE COURT BELOW SHOULD HAVE ABSTAINED AS A
MATTER OF "EQUITABLE FITNESS OR PROPRIETY," PRENTIS V. ATLANTIC COAST
LINE, 211 U.S. 210, 229, FROM TYING THE COMMISSION'S HANDS AND BARRING
IT FROM MAKING THE FINAL ORDER HERE HELD TO BE VITAL.  TO STOP THESE
PROCEEDINGS AT THE THRESHOLD AND THUS BAR ALL POSSIBLE RELIEF FOR THE
YEARS DURING WHICH THE LITIGATION CRAWLED ALONG ITS INTERMINABLE COURSE
SEEMS TO ME FAR LESS JUSTIFIABLE THAN THE ACTION CONDEMNED BY THIS
COURT IN PETROLEUM CO. V. PUBLIC SERVICE COMMISSION, 304 U.S. 209. 

THE FEDERAL ACTION HALTING THE OHIO RATE-MAKING PROCESS SINCE 1935 IS
JUSTIFIED WHOLLY ON THE GROUND THAT THE NATURAL GAS ACT, PASSED IN
1938, BARS REGULATION BY OHIO OF UNITED'S RATES SINCE 1938, WHILE OHIO
LAW IS SAID TO BAR ANY REGULATION PRIOR TO 1938 BECAUSE NO FINAL ORDER
HAS YET BEEN MADE BY THE PUBLIC UTILITIES COMMISSION.  THE COURT
REFUSES TO HOLD CATEGORICALLY THAT OHIO LAW NULLIFIES THIS ORDER,
ASSERTING INSTEAD THAT OHIO LAW REQUIRES US TO INTERPRET THE
COMMISSION'S ORDER AS NOT ATTEMPTING TO LEAD TO RATE MAKING FOR THE
PERIOD 1935-1938.  THIS WILL DOUBTLESS PROVE SOME SURPRISE TO THE
COMMISSION, WHICH MADE THE ORDER IN QUESTION IN 1935, AND WHICH HAS
ARGUED BOTH HERE AND BELOW THAT THE NATURAL GAS ACT IS IRRELEVANT
BECAUSE IT TOOK EFFECT SUBSEQUENT TO THE PERIOD IN WHICH THE COMMISSION
IS NOW INTERESTED.  WHETHER THE COURT CONSIDERS THAT OHIO LAW BARS THE
COMMISSION FROM MAKING A VALID ORDER, OR WHETHER IT USES ITS KNOWLEDGE
OF OHIO LAW TO TELL THE COMMISSION WHAT THE COMMISSION HAS ATTEMPTED,
IS IMMATERIAL - IN EITHER CASE WE PRESS OUR CONCEPTION OF OHIO LAW ON
THE OHIOANS.  BUT THE LOCAL LAW QUESTION HAS NEVER BEEN SQUARELY
DECIDED IN OHIO.  THAT QUESTION IS WHETHER UNITED CAN SUCCESSFULLY, BY
TAKING FULL ADVANTAGE OF THE DELAYS OF THE FEDERAL JUDICIAL SYSTEM,
JOCKEY THE CITY OF PORTSMOUTH AND THE STATE OF OHIO INTO SUCH A
POSITION THAT NO ONE CAN NOW DETERMINE WHAT WERE REASONABLE RATES FOR
THE PERIOD PRIOR TO 1938. 

REFERENCE TO STATE CASES AND PARTICULARLY TO GREAT MIAMI TAXPAYERS
ASSN. V. PUBLIC UTILITIES COMMISSION, 131 OHIO ST. 285, 2 N.E.2D 777,
DOES NOT SOLVE THIS PROBLEM, FOR, IN THE FIRST PLACE, UNDER THE STATE
LAW ALL APPEALS TO THE OHIO SUPREME COURT ARE EXPLICITLY CONDITIONED
UPON THE POSTING OF BOND BY THE UTILITY TO SECURE PAYMENT OF ANY DAMAGE
RESULTING FROM DELAY.  SEC. 548 OHIO GEN. CODE.  SUCH SECURITY FOR
WHICH THE STATE LAW PROVIDED SHOULD HAVE BEEN EXACTED BY THE LOWER
COURT HERE, INLAND STEEL CO. V. UNITED STATES, 306 U.S. 153, 156; CF.
UNITED STATES V. MORGAN, 307 U.S. 183, 197.  "IT IS ESPECIALLY FITTING
THAT EQUITY EXERT ITS FULL STRENGTH IN ORDER TO PROTECT FROM LOSS A
STATE WHICH HAS BEEN INJURED BY REASON OF A SUSPENSION OF ENFORCEMENT
OF STATE LAWS IMPOSED BY EQUITY ITSELF."  PUBLIC SERVICE COMMISSION V.
BRASHEAR FREIGHT LINES, 312 U.S. 621, 630.  THE OHIO SUPREME COURT
MIGHT WELL CONCLUDE THAT THIS FAILURE OF THE COURT BELOW TO REQUIRE
APPROPRIATE SECURITY JUSTIFIES THE COMMISSION IN ESTABLISHING A RATE
FOR A PERIOD PRIOR TO 1938.  IN ADDITION, THE VERY FACT THAT THE STATE
PUBLIC UTILITIES COMMISSION AND THE LEGAL REPRESENTATIVES OF THE STATE
OF OHIO HAVE VIGOROUSLY FOUGHT THIS CASE FOR FOUR YEARS SINCE THE
PASSAGE OF THE NATURAL GAS ACT IS INDICATION THAT THEY AT LEAST DO NOT
SUPPOSE THAT THE STATE IS POWERLESS TO FIX RATES AS OF THE DATE UNITED
WAS MADE A PARTY DEFENDANT.  WE HAVE BEEN CITED TO NO CASE IN WHICH THE
STATE SUPREME COURT HAS HELD THAT AN INJUNCTION AGAINST RATE
PROCEEDINGS MUST RESULT IN SUCH INORDINATE RETURNS AS THE RESPONDENT
HERE MAY RECEIVE. 

UNDER THESE CIRCUMSTANCES OUR OPINION AS TO THE LOCAL LAW "CANNOT
ESCAPE BEING A FORECAST RATHER THAN A DETERMINATION."  RAILROAD
COMMISSION V. PULLMAN CO., 312 U.S. 496, 499.  WHAT WAS SAID BY THE
COURT THERE IS EQUALLY APPLICABLE HERE:  "THE LAST WORD ON THE MEANING
OF ARTICLE 6445 OF THE TEXAS CIVIL STATUTES, AND THEREFORE THE LAST
WORD ON THE STATUTORY AUTHORITY OF THE RAILROAD COMMISSION IN THIS
CASE, BELONGS NEITHER TO US NOR TO THE DISTRICT COURT BUT TO THE
SUPREME COURT OF TEXAS.  ... THE REIGN OF LAW IS HARDLY PROMOTED IF AN
UNNECESSARY RULING OF A FEDERAL COURT IS THUS SUPPLANTED BY A
CONTROLLING DECISION OF A STATE COURT."  FN2  HERE AS THERE "IF THERE
WAS NO WARRANT IN STATE LAW FOR THE COMMISSION'S ASSUMPTION OF
AUTHORITY THERE IS AN END OF THE LITIGATION; THE CONSTITUTIONAL ISSUE
DOES NOT ARISE."  IBID., 500, 501. 

EVEN ASSUMING, WITH THE COURT, THAT THIS DELAY IN THE JUDICIAL
PROCESS BARS THE PETITIONERS FROM THE PARTICULAR RELIEF SOUGHT UNDER
LOCAL LAW, I STILL THINK WE SHOULD HOLD THAT THIS INJUNCTION WAS
IMPROVIDENTLY GRANTED.  WE ARE GIVEN AS THE BASES OF FEDERAL EQUITY
JURISDICTION THESE PROPOSITIONS:  THE STATE ORDER IS ON ITS FACE
"PLAINLY INVALID"; UNITED WILL BE PUT TO CONSIDERABLE EXPENSE IN
COMPLYING WITH IT; NON-COMPLIANCE WILL RESULT IN HEAVY PENALTIES OR IN
COSTLY LITIGATION.  IN MY OPINION NONE OF THESE SEPARATELY NOR ALL
TAKEN TOGETHER PROVIDE ANY GROUND FOR FEDERAL JURISDICTION. 

WHAT HAS BEEN SAID ABOVE CONCERNING THE NECESSITY OF ALLOWING STATE
COURTS TO DECIDE STATE LAW IS IN MY VIEW ADEQUATE ANSWER TO THE
ARGUMENT THAT THE ORDER IS "PLAINLY INVALID."  OHIO LAW IN THIS RESPECT
COULD BE ADEQUATELY INTERPRETED AND ENFORCED IN OHIO COURTS.  IN
ADDITION, I DO NOT CONSIDER THE ORDER BEFORE US RIPE FOR REVIEW.  IT IS
SIMPLY A DECLARATION OF STATUS REQUIRING NOTHING OF UNITED OTHER THAN
COOPERATION IN EXPLORATION OF THE RATE PROBLEM FOR THE PURPOSE OF
EVENTUALLY SETTING UNITED'S RATES, AND IS THUS AS PROPERLY OUTSIDE THE
REALM OF REVIEW NOW AS IF THIS WERE "AN ATTEMPT TO REVIEW A VALUATION
MADE BY THE INTERSTATE COMMERCE COMMISSION WHICH HAS NO IMMEDIATE LEGAL
EFFECT ALTHOUGH IT MAY BE THE BASIS OF A SUBSEQUENT RATE ORDER." 
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 129.  IN THIS
RESPECT, THE INSTANT CASE IS IDENTICAL WITH EAST OHIO GAS CO. V.
FEDERAL POWER COMMISSION, 115 F.2D 385, 388.  UNLESS THE OTHER GROUNDS
OF ALLEGED EQUITABLE JURISDICTION TAKE IT OUTSIDE THE SCOPE OF THE
ROCHESTER CASE, THIS IS NOT THE APPROPRIATE TIME FOR REVIEW. 

WE ARE TOLD THAT UNITED WILL BE PUT TO GREAT EXPENSE BY COMPLIANCE
WITH THE COMMISSION'S ORDER, IN THAT IT MUST PROVIDE CERTAIN
STATISTICAL DATA NECESSARY SO THAT THE COMMISSION MAY COMPLETE ITS
STUDY OF THE RATE PROBLEM.  IT IS NOT SUGGESTED THAT THIS COST IN
ITSELF IS ANY REASON FOR ENJOINING THE PROCEEDING, NOR COULD IT BE
UNLESS PETROLEUM CO. V. COMMISSION, SUPRA, 220, IS TO BE OVERRULED; BUT
THE SPECIAL CIRCUMSTANCE OFFERED HERE IS THAT CONGRESS BY PASSAGE OF
THE NATURAL GAS ACT SOUGHT TO PREVENT SUCH AN EXPENDITURE.  WE ARE
GIVEN NO ARGUMENT AND CITED TO NO LEGISLATIVE HISTORY INDICATING THAT
CONGRESS HAD ANY DESIRE TO PRECLUDE THE STATES FROM PROTECTING STATE
CONSUMERS AGAINST UNFAIR RATES FOR THE PERIOD PRIOR TO THE PASSAGE OF
THE FEDERAL ACT. 

I AM NOT AS SURE AS THE MAJORITY OF THE COURT THAT REFUSAL OF UNITED
TO COMPLY WITH THE COMMISSION'S ORDER WILL IN FACT SUBJECT IT TO HEAVY
PENALTIES.  FN3  BUT ASSUMING THAT THIS ORDER IS BACKED BY THE PENALTY
CLAUSE, THE CASE SHOULD BE GOVERNED BY WHAT WE SAID RECENTLY IN
PETROLEUM CO. V. PUBLIC SERVICE COMMISSION, SUPRA, 220:  "NO ORDER HAS
BEEN ENTERED FIXING RATES OR REGULATING CONDUCT.  THE NECESSITY TO
EXPEND FOR THE INVESTIGATION OR TO TAKE THE RISK OF NON-COMPLIANCE DOES
NOT JUSTIFY THE INJUNCTION.  IT IS NOT THE SORT OF IRREPARABLE INJURY
AGAINST WHICH EQUITY PROTECTS."  CF. DALTON MACHINE CO. V. VIRGINIA,
236 U.S. 699. 

THAT UNITED MAY BE SUBJECTED TO A COURSE OF LITIGATION BEFORE ITS
RIGHTS UNDER THE OHIO LAW ARE FULLY DETERMINED IS THE LEAST OF ALL
REASONS FOR THIS USE OF EQUITY JURISDICTION.  THE COMPELLING
CONSIDERATION HERE IS THAT "LAWSUITS ALSO OFTEN PROVE TO HAVE BEEN
GROUNDLESS; BUT NO WAY HAS BEEN DISCOVERED OF RELIEVING A DEFENDANT
FROM THE NECESSITY OF A TRIAL TO ESTABLISH THE FACT."  MYERS V.
BETHLEHEM CORP., 303 U.S. 41, 51. 

THE JUDGMENT BELOW SHOULD BE REVERSED AND THE STATE OF OHIO PERMITTED
TO CONTINUE AS BEST IT CAN IN VIEW OF THE LONG DELAY CAUSED BY THE
UNFORTUNATE INTERVENTION OF THE FEDERAL COURTS. 

FN1  THE SUGGESTION IN THE OPINION OF THE COURT THAT THE STATE IS
FREE TO CONTINUE ITS EFFORTS TO CONTROL THE RATE OF THE LOCAL COMPANY,
PORTSMOUTH GAS, SO LONG AS IT DOES NOT INTERFERE WITH UNITED, THE
COMPANY WHICH SUPPLIES PORTSMOUTH GAS, ACCORDS A PRIVILEGE OF LITTLE
MEANING.  THE PRICE CHARGED PORTSMOUTH GAS BY UNITED IS ABOUT 70% OF
THE AMOUNT WHICH THE CITY COUNCIL CONSIDERED A REASONABLE RATE FOR
PORTSMOUTH GAS TO CHARGE.  IT IS OBVIOUS THAT THE PORTSMOUTH GAS RATE
CANNOT BE MATERIALLY AFFECTED WITHOUT IN TURN ALTERING THE UNITED
CHARGE. 

FN2  FOR OTHER CASES EXEMPLIFYING THIS VIEWPOINT, SEE WATSON V. BUCK,
313 U.S. 387, 402. 

FN3  THE PENALTY PROVISIONS OF THE OHIO STATUTE, SECS. 614-64 AND 65
ARE APPLICABLE WHERE A RATE OR REFUND ORDER IS DISOBEYED, STATE EX REL.
OHIO BELL TELEPHONE CO. V. COURT OF COMMON PLEAS, 128 OHIO ST. 553,
555, 192 N.E. 787, BUT IT MAY BE THAT ORDERS OF THE SORT HERE INVOLVED
ARE COVERED BY SECS. 614-6 AND 7, PROVIDING FOR THE EXAMINATION OF
RECORDS AND THE PRODUCTION OF WITNESSES.  IF THIS IS SO, REVIEW MAY BE
OBTAINED UNDER OHIO PRACTICE WITHOUT FEAR OF PENALTY PRIOR TO A FINAL
JUDICIAL DETERMINATION.  SEE E.G. MOUSER V. PUBLIC UTILITIES
COMMISSION, 124 OHIO ST. 425, 179 N.E. 133.  WE ARE CITED TO NO CASES
WHICH INDICATE WHICH OF THESE PROCEDURES GOVERNS THIS ORDER. 
..END :











HARRISON V. NORTHERN TRUST CO., 317 U.S. 476 


NO. 103.  ARGUED DECEMBER 8, 1942.  - DECIDED JANUARY 11, 1943.  - 125
F.2D 893, REVERSED. 


1.  IN SEC. 303(A) OF THE REVENUE ACT OF 1926 WHICH, AS AMENDED BY
SEC. 807 OF THE REVENUE ACT OF 1932, PROVIDES THAT WHERE THE FEDERAL
ESTATE TAX IS "PAYABLE  ...  OUT OF THE BEQUESTS, LEGACIES, OR DEVISES
OTHERWISE DEDUCTIBLE UNDER THIS PARAGRAPH, THEN THE AMOUNT DEDUCTIBLE
UNDER THIS PARAGRAPH SHALL BE THE AMOUNT OF SUCH BEQUESTS, LEGACIES, OR
DEVISES REDUCED BY THE AMOUNT OF SUCH TAXES," THE WORDS "PAYABLE OUT
OF" ARE USED IN THE SENSE OF "DIMINISHED OR REDUCED BY" THE PAYMENT OF
THE TAX.  P. 479. 

2.  THE LEGISLATIVE HISTORY OF A STATUTE MAY BE CONSIDERED IN
ASCERTAINING ITS MEANING, NO MATTER HOW CLEAR ITS WORDS MAY APPEAR ON
SUPERFICIAL EXAMINATION.  P. 479. 

3.  WHERE A RESIDUARY ESTATE IS BEQUEATHED TO CHARITIES FOR WHICH
DEDUCTION IS ALLOWED BY SEC. 303(A) OF THE REVENUE ACT OF 1926, AS
AMENDED BY SEC. 807 OF THE REVENUE ACT OF 1932, AND BY THE STATE LAW
THE FEDERAL ESTATE TAX IS A CHARGE NOT AGAINST THE RESIDUE BUT AGAINST
THE ENTIRE ESTATE, THE AMOUNT WHICH, IN COMPUTING THE FEDERAL ESTATE
TAX, MAY BE DEDUCTED FROM THE GROSS ESTATE ON ACCOUNT OF THE CHARITIES,
IS THE AMOUNT OF THE RESIDUARY ESTATE ACTUALLY PASSING TO THE
CHARITABLE BENEFICIARIES AFTER PROVISION IS MADE FOR THE PAYMENT OF THE
TAX.  P. 480. 

4.  THE DEDUCTION HERE INVOLVED IS ONE WHICH CONGRESS COULD HAVE
DENIED ALTOGETHER, AND THE LIMITATION PLACED UPON IT BY SEC. 807 IS
CONSTITUTIONAL.  P. 480. 

HARRISON, COLLECTOR OF INTERNAL REVENUE, V. NORTHERN TRUST CO. ET AL.,
EXECUTORS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 612, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE PRESENT RESPONDENTS IN AN ACTION TO RECOVER AN ALLEGED OVERPAYMENT
OF FEDERAL ESTATE TAXES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, THE EXECUTORS UNDER THE WILL OF HENRY M. WOLF, BROUGHT
THIS ACTION TO RECOVER AN ALLEGED OVERPAYMENT OF FEDERAL ESTATE TAXES. 
THE CASE TURNS UPON WHETHER, UNDER THE PROVISIONS OF SEC. 303(A) OF THE
REVENUE ACT OF 1926, AS AMENDED BY SEC. 807 OF THE REVENUE ACT OF 1932,
FN1 THE AMOUNT TO BE DEDUCTED FROM DECEDENT'S GROSS ESTATE ON ACCOUNT
OF THE BEQUEST OF HIS RESIDUARY ESTATE TO CHARITY IS THE ACTUAL AMOUNT
OF SUCH BEQUEST, AFTER PAYMENT OF FEDERAL ESTATE TAXES, OR WHAT WOULD
HAVE BEEN THE AMOUNT IF THERE HAD BEEN NO SUCH TAXES. 

TESTATOR, A RESIDENT OF ILLINOIS, BEQUEATHED THE RESIDUE OF HIS
ESTATE TO FOUR NAMED CHARITABLE ORGANIZATIONS.  THE WILL CONTAINED NO
PROVISION AS TO THE PAYMENT OF FEDERAL OR STATE DEATH TAXES EXCEPT FOR
A DIRECTION THAT ALL INHERITANCE, LEGACY, SUCCESSION AND ESTATE TAXES
UPON CERTAIN SPECIFIC BEQUESTS TO INDIVIDUALS SHOULD BE PAID OUT OF THE
GENERAL ESTATE.  THE RESIDUARY ESTATE, AFTER DEDUCTING FUNERAL AND
ADMINISTRATION EXPENSES AND SPECIFIC BEQUESTS BUT NOT THE FEDERAL
ESTATE TAX, AMOUNTED TO $463,103.08, ALL OF WHICH SUM RESPONDENTS CLAIM
THEY ARE ENTITLED TO DEDUCT FROM THE STATUTORY GROSS ESTATE IN
COMPUTING THE FEDERAL ESTATE TAX.  THE COMMISSIONER OF INTERNAL REVENUE
RULED, HOWEVER, THAT ONLY THAT PORTION OF THE RESIDUE WHICH WAS
ACTUALLY DISTRIBUTABLE TO THE CHARITABLE DONEES, I.E., THE AMOUNT
REMAINING AFTER PAYMENT OF THE FEDERAL ESTATE TAX, WAS DEDUCTIBLE AS A
CHARITABLE BEQUEST.  HE DETERMINED THAT THE TOTAL ESTATE TAX AMOUNTED
TO $459,879.57, WHICH WOULD BE PAID OUT OF THE RESIDUARY ESTATE, AND
THAT RESPONDENTS WERE THEREFORE ENTITLED TO DEDUCT ONLY $3,223.51, THE
AMOUNT ACTUALLY PASSING UNDER THE RESIDUARY BEQUESTS. 

RESPONDENTS PAID THE ASSESSED TAX UNDER PROTEST AND FILED A CLAIM FOR
REFUND WHICH THE COMMISSIONER REJECTED.  THIS SUIT FOLLOWED, AND THE
DISTRICT COURT ENTERED JUDGMENT FOR RESPONDENTS.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  125 F.2D 893.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE FEDERAL ESTATE
TAX SYSTEM. 

TAX IS TO BE DETERMINED BY STATE LAW, CF. RIGGS V. DEL DRAGO, ANTE, P.
95, AND PROVIDES THAT WHERE THE TAX IS, EITHER UNDER THE WILL OR THE
APPLICABLE LOCAL LAW, "PAYABLE  ...  OUT OF THE BEQUESTS, LEGACIES, OR
DEVISES OTHERWISE DEDUCTIBLE UNDER THIS PARAGRAPH, THEN THE AMOUNT
DEDUCTIBLE UNDER THIS PARAGRAPH SHALL BE THE AMOUNT OF SUCH BEQUESTS,
LEGACIES, OR DEVISES REDUCED BY THE AMOUNT OF SUCH TAXES."  THE COURT
BELOW FIXED UPON THE WORDS "PAYABLE OUT OF" AND HELD SEC. 807
INAPPLICABLE BECAUSE THE FEDERAL ESTATE TAX WAS A CHARGE AGAINST THE
ENTIRE ESTATE AND NOT AGAINST THE RESIDUE UNDER ILLINOIS LAW,  FN3  AND
THEREFORE WAS NOT "PAYABLE OUT OF" THE RESIDUARY BEQUEST.  THE COURT
THEN FOLLOWED EDWARDS V. SLOCUM, 264 U.S. 61, WHERE, UNDER
SUBSTANTIALLY IDENTICAL FACTS AND IN THE ABSENCE OF A STATUTE SUCH AS
SEC. 807, THE INSTANT ISSUE WAS RESOLVED AGAINST THE GOVERNMENT.  IN SO
DOING, THE COURT BELOW REFUSED TO EXAMINE THE LEGISLATIVE HISTORY OF
SEC. 807, ON THE GROUND THAT THE SECTION WAS UNAMBIGUOUS. 

BUT WORDS ARE INEXACT TOOLS AT BEST, AND FOR THAT REASON THERE IS
WISELY NO RULE OF LAW FORBIDDING RESORT TO EXPLANATORY LEGISLATIVE
HISTORY NO MATTER HOW "CLEAR THE WORDS MAY APPEAR ON 'SUPERFICIAL
EXAMINATION.'"  UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S.
534, 543-44.  SEE ALSO UNITED STATES V. DICKERSON, 310 U.S. 554, 562. 
SO, ACCEPTING THE CIRCUIT COURT'S INTERPRETATION OF ILLINOIS LAW AS TO
THE INCIDENCE OF THE TAX, WE THINK IT SHOULD HAVE CONSIDERED THE
LEGISLATIVE HISTORY OF SEC. 807 TO DETERMINE IN JUST WHAT SENSE
CONGRESS USED THE WORDS "PAYABLE OUT OF."  THE COMMITTEE REPORTS ON
SEC. 807 DEMONSTRATE THAT IT WAS INTENDED AS "A LEGISLATIVE REVERSAL OF
THE DECISION" IN EDWARDS V. SLOCUM, SUPRA (H. REP. NO. 708, 72D CONG.,
1ST SESS., P. 50),  FN4  AND THAT CONGRESS USED THE WORDS "PAYABLE OUT
OF" IN THE SENSE OF "DIMINISHED OR REDUCED BY" THE PAYMENT OF THE TAX. 
THUS THE HOUSE REPORT STATES: 

"THE PURPOSE OF THIS AMENDMENT IS TO LIMIT THE DEDUCTION FOR
CHARITABLE BEQUESTS, ETC., TO THE AMOUNT WHICH THE DECEDENT HAS IN FACT
AND IN LAW DEVISED OR BEQUEATHED TO CHARITY.  UNDER EXISTING LAW NO
CONSIDERATION CAN BE GIVEN TO ANY ESTATE, SUCCESSION, LEGACY, OR
INHERITANCE TAXES IMPOSED WITH RESPECT TO A DECEDENT'S ESTATE EVEN
THOUGH BY THE TERMS OF HIS WILL OR THE LOCAL LAW THEY ACTUALLY REDUCE
THE AMOUNT OF SUCH BEQUEST OR DEVISE."  P. 49. 

AND, IN REFERRING TO THE SITUATION IN EDWARDS V. SLOCUM, IT WAS
SAID: 

"UNDER THE STATE LAW THE ESTATE TAX WAS PAYABLE GENERALLY OUT OF THE
ESTATE AND SO FELL UPON AND REDUCED THE RESIDUARY ESTATE GIVEN TO
CHARITY."  P. 50. 

THAT IS THE CASE HERE, FOR WHILE THE ESTATE TAX MAY BE A CHARGE
AGAINST THE ENTIRE ESTATE UNDER ILLINOIS LAW, ADMITTEDLY ITS PAYMENT
WILL OPERATE TO REDUCE THE AMOUNT OF THE RESIDUARY ESTATE.  THIS
LEGISLATIVE HISTORY IS CONCLUSIVE IN FAVOR OF THE GOVERNMENT'S
CONTENTION THAT RESPONDENTS ARE ENTITLED TO DEDUCT ONLY THE AMOUNT OF
THE RESIDUARY ESTATE ACTUALLY PASSING TO THE CHARITABLE BENEFICIARIES
AFTER PROVISION IS MADE FOR THE PAYMENT OF THE FEDERAL ESTATE TAX. 

IT IS ARGUED ON BEHALF OF RESPONDENTS THAT THIS INTERPRETATION OF
SEC. 807 RESULTS IN A "TAX UPON A TAX" AND IS THEREFORE
UNCONSTITUTIONAL.  WE NEED NOT STOP TO CONSIDER THE ACCURACY OF THIS
NOMENCLATURE, BECAUSE THIS CASE INVOLVES ONLY A CHARITABLE DEDUCTION
WHICH CONGRESS COULD HAVE DENIED ALTOGETHER, AND THE LIMITATIONS PLACED
UPON THAT DEDUCTION BY SEC. 807 CLEARLY DO NOT GO BEYOND THE LIMITS OF
PERMISSIBLE CONSTITUTIONAL POWER.  RESPONDENTS ALSO OBJECT TO THE FACT
THAT THE TAX MAY HAVE TO BE COMPUTED BY AN ALGEBRAIC FORMULA OR BY
COMPLICATED ARITHMETICAL METHODS BECAUSE OF THE TWO MUTUALLY DEPENDENT
VARIABLES, THE AMOUNT OF THE TAX AND THE AMOUNT OF THE RESIDUE AS
REDUCED BY THE TAX, AND REFERENCE IS MADE TO THE STATEMENTS IN EDWARDS
V. SLOCUM THAT "ALGEBRAIC FORMULAE ARE NOT LIGHTLY TO BE IMPUTED TO
LEGISLATORS," 264 U.S. AT 63.  THIS CONTENTION LOSES ALL SIGNIFICANCE
WHEN IT IS REMEMBERED THAT SEC. 807 WAS INTENDED AS A "LEGISLATIVE
REVERSAL" OF EDWARDS V. SLOCUM.  AND COMPARE UNITED STATES V. NEW YORK,
315 U.S. 510. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  SECTION 807 PROVIDES AS FOLLOWS: 

AMENDED BY INSERTING AFTER THE FIRST SENTENCE OF EACH A NEW SENTENCE TO
READ AS FOLLOWS: 

"IF THE TAX IMPOSED BY SECTION 301, OR ANY ESTATE, SUCCESSION,
LEGACY, OR INHERITANCE TAXES, ARE, EITHER BY THE TERMS OF THE WILL, BY
THE LAW OF THE JURISDICTION UNDER WHICH THE ESTATE IS ADMINISTERED, OR
BY THE LAW OF THE JURISDICTION IMPOSING THE PARTICULAR TAX, PAYABLE IN
WHOLE OR IN PART OUT OF THE BEQUESTS, LEGACIES, OR DEVISES OTHERWISE
DEDUCTIBLE UNDER THIS PARAGRAPH, THEN THE AMOUNT DEDUCTIBLE UNDER THIS
PARAGRAPH SHALL BE THE AMOUNT OF SUCH BEQUESTS, LEGACIES, OR DEVISES
REDUCED BY THE AMOUNT OF SUCH TAXES." 

IT IS NOW PART OF SEC. 812(D) OF THE INTERNAL REVENUE CODE. 

FN3  THE CASES OF PEOPLE V. PASFIELD, 284 ILL. 450, 120 N.E. 286;
PEOPLE V. NORTHERN TRUST CO., 289 ILL. 475, 124 N.E. 662; AND PEOPLE V.
MCCORMICK, 327 ILL. 547, 158 N.E. 861, WERE CITED FOR THIS
PROPOSITION. 

FN4  SEE ALSO S. REP. NO. 398, 68TH CONG., 1ST SESS., P. 35, AND H.
CONFERENCE REP. NO. 844, 68TH CONG., 1ST SESS., PP. 25-26, WITH
REFERENCE TO SEC. 303(A) OF THE REVENUE ACT OF 1924 WHICH CONTAINED THE
SAME SENTENCE AS SEC. 807. 
..END :





LILLY V. GRAND TRUNK R. CO., 317 U.S. 481 


NO. 124.  ARGUED DECEMBER 8, 9, 1942.  - DECIDED JANUARY 11, 1943.  -
312 ILL. APP. 73, 37 N.E.2D 888, REVERSED. 


1.  THE BOILER INSPECTION ACT IMPOSES UPON THE CARRIER AN ABSOLUTE AND
CONTINUING DUTY TO MAINTAIN ITS LOCOMOTIVES, AND ALL PARTS AND
APPURTENANCES THEREOF, IN PROPER CONDITION, AND SAFE TO OPERATE WITHOUT
UNNECESSARY PERIL TO LIFE OR LIMB.  NEGLIGENCE IS NOT THE BASIS OF
LIABILITY.  P. 485. 

2.  THE BOILER INSPECTION ACT IS TO BE LIBERALLY CONSTRUED IN THE
LIGHT OF ITS PRIME PURPOSE, THE PROTECTION OF EMPLOYEES AND OTHERS BY
REQUIRING THE USE OF SAFE EQUIPMENT.  P. 486. 

3.  THE USE OF A LOCOMOTIVE TENDER UPON WHICH AN EMPLOYEE MUST GO IN
THE COURSE OF HIS DUTIES, THE TOP OF WHICH TENDER IS COVERED WITH ICE,
INVOLVES "UNNECESSARY PERIL TO LIFE OR LIMB" WITHIN THE MEANING OF THE
BOILER INSPECTION ACT, AS CONSTRUED BY RULE 153 OF THE RULES ADOPTED
PURSUANT THERETO BY THE INTERSTATE COMMERCE COMMISSION; WHICH RULE
PROVIDES THAT THE "TOP OF TENDER BEHIND FUEL SPACE SHALL BE KEPT CLEAN,
AND MEANS PROVIDED TO CARRY OFF WASTE WATER."  P. 486. 

4.  A RULE PROMULGATED BY THE INTERSTATE COMMERCE COMMISSION IN THE
EXERCISE OF ITS AUTHORITY UNDER THE BOILER INSPECTION ACT HAS THE FORCE
OF LAW AND BECOMES AN INTEGRAL PART OF THE ACT TO BE JUDICIALLY
NOTICED.  P. 488. 

5.  IN AN ACTION FOR PERSONAL INJURIES, A RAILWAY EMPLOYEE RELIED
UPON INFRACTIONS OF THE BOILER INSPECTION ACT IN THE USE OF A
LOCOMOTIVE WHICH WAS IN IMPROPER CONDITION AND UNSAFE TO OPERATE,
CONSTITUTING UNNECESSARY PERIL TO LIFE AND LIMB (1) IN THAT THE TENDER
ON THE TOP WHERE HE WAS REQUIRED TO WORK WAS SLIPPERY WITH ICE (THIS
COUNT BEING SUPPLEMENTED BY A CHARGE THAT THE TENDER LEAKED THERE); AND
(2) IN THAT THE TENDER AT THE PLACE IN QUESTION WAS CRACKED, SO AS TO
PERMIT LEAKAGE OF WATER, LIABLE TO FREEZE AND CAUSE A DANGEROUS
CONDITION ON TOP OF THE TENDER.  HELD THAT THE EXISTENCE OF A LEAK WAS
NOT ESSENTIAL TO THE FIRST CHARGE, AND THAT A GENERAL VERDICT FOR THE
PLAINTIFF COULD BE SUSTAINED, NOTWITHSTANDING THAT BY ANSWER TO A
SPECIAL INTERROGATORY THE JURY ALSO FOUND THAT THE ALLEGED LEAK IN THE
TENDER DID NOT EXIST.  P. 489. 

6.  IN AN ACTION FOR PERSONAL INJURIES RESULTING FROM VIOLATIONS OF
THE BOILER INSPECTION ACT, THE PARTIAL DEFENSE OF CONTRIBUTORY
NEGLIGENCE AND THE BAR OF ASSUMPTION OF RISK ARE NOT AVAILABLE UNDER
SECS. 3 AND 4 OF THE FEDERAL EMPLOYERS' LIABILITY ACT, AS THOSE

LILLY V. GRAND TRUNK WESTERN RAILROAD CO. 

CERTIORARI TO THE APPELLATE COURT, FIRST DISTRICT, OF ILLINOIS. 

CERTIORARI, POST, P. 612, TO REVIEW A JUDGMENT FOR THE PRESENT
RESPONDENT, ENTERED BY THE COURT BELOW NON OBSTANTE VEREDICTO IN AN
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY AND THE BOILER INSPECTION
ACTS.  THE SUPREME COURT OF ILLINOIS REFUSED LEAVE TO APPEAL. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS ACTION IN AN ILLINOIS STATE COURT, UNDER THE
FEDERAL EMPLOYERS' LIABILITY ACT  FN1  AND THE BOILER INSPECTION ACT,
FN2  FOR PERSONAL INJURIES SUSTAINED ON FEBRUARY 6, 1937, IN THE COURSE
OF HIS EMPLOYMENT AS A BRAKEMAN IN INTERSTATE COMMERCE.  A GENERAL
VERDICT OF $32,500 WAS RETURNED IN HIS FAVOR BY THE JURY, BUT ON APPEAL
THE APPELLATE COURT OF ILLINOIS FOR THE FIRST DISTRICT ENTERED JUDGMENT
FOR RESPONDENT NOTWITHSTANDING THE VERDICT.  FN3 THE SUPREME COURT OF
ILLINOIS REFUSED LEAVE TO APPEAL.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANT QUESTIONS PRESENTED IN THE INTERPRETATION OF THE
ABOVEMENTIONED FEDERAL STATUTES. 

PETITIONER FELL FROM THE TOP OF THE LOCOMOTIVE TENDER WHILE HE WAS
PULLING A WATER SPOUT, WHICH WAS AT THE SIDE OF THE TRACK, OVER THE
TENDER'S MANHOLE BY MEANS OF A ROD AND HOOK, PREPARATORY TO FILLING THE
TENDER'S TANK WITH WATER.  AS TO THE CIRCUMSTANCES OF THE ACCIDENT,
PETITIONER TESTIFIED THAT THE TOP OF THE TENDER BETWEEN THE WATER
MANHOLE AND THE FUEL SPACE, AN AREA OF SOME SIX SQUARE FEET, WAS
COVERED WITH ICE; THAT THERE WAS A SMALL LEAK AT THE COLLAR OF THE
MANHOLE FROM WHICH WATER FLOWED ONTO THE TENDER'S SURFACE; THAT THE
ROD, USED FOR PULLING THE WATER SPOUT OVER THE TENDER, WAS FROZEN IN
THE ICE, AND HE HAD TO KICK IT FREE; THAT HE STOOD ON THE ICE AND
BRACED HIMSELF AS HE REACHED OUT WITH THE ROD TO PULL THE SPOUT; AND
THAT AS HE PULLED, THE ROD'S HOOK SLIPPED ON THE SPOUT, AND HIS FEET
SIMULTANEOUSLY SLIPPED ON THE ICE, CAUSING HIM TO FALL TO THE GROUND. 

PETITIONER'S COMPLAINT CHARGED NEGLIGENCE GENERALLY WITH RESPECT TO
THE PRESENCE OF ICE ON THE TENDER AND ALSO ALLEGED AS SEPARATE
VIOLATIONS OF THE "FEDERAL SAFETY APPLIANCE ACT" (MORE PROPERLY THE
BOILER INSPECTION ACT), FIRST THAT RESPONDENT USED "A LOCOMOTIVE AND
TENDER WHICH WAS IN IMPROPER CONDITION AND UNSAFE TO OPERATE IN THE
SERVICE, AND ITS CONDITION CONSTITUTED UNNECESSARY PERIL TO LIFE AND
LIMB IN THAT  ...  THE TOP WHERE THE PLAINTIFF WAS REQUIRED TO WORK WAS
SLIPPERY AND COVERED WITH ICE AND OTHER SLIPPERY MATERIALS TO ENDANGER
HIS LIFE OR LIMB, AND THE TENDER LEAKED THERE,  ...  ," AND SECONDLY
THAT RESPONDENT USED "A LOCOMOTIVE AND TENDER WHICH WAS IN IMPROPER
CONDITION AND UNSAFE TO OPERATE IN THE SERVICE, AND ITS CONDITION
CONSTITUTED UNNECESSARY PERIL TO LIFE AND LIMB, IN THAT THE  ...
TENDER  ...  AT THE PART WHERE THE WATER IS SUPPLIED  ...  TO BE
CRACKED, WORN AND SPLIT, SO AS TO OCCASION AND PERMIT THE LEAKING OF
WATER FROM AND THROUGH THIS CRACK,  ...  RENDERING IT LIKELY AND LIABLE
FOR THE WATER TO FREEZE AND CAUSE A DANGEROUS CONDITION,  ...  "  FN4 

WHEN THE JURY RENDERED ITS GENERAL VERDICT FOR PETITIONER, IT ALSO
ANSWERED IN THE NEGATIVE THE FOLLOWING SPECIAL INTERROGATORY SUBMITTED
BY RESPONDENT: 

"WAS THERE, AT THE TIME OF THE ACCIDENT IN QUESTION, A LEAK IN OR
NEAR THE MANHOLE COLLAR ON THE TENDER IN QUESTION?" 

RESPONDENT THEN MOVED FOR JUDGMENT NOTWITHSTANDING THE VERDICT, ON
THE GROUND THAT THE ANSWER TO THE SPECIAL INTERROGATORY REMOVED ALL
QUESTION OF VIOLATION OF THE BOILER INSPECTION ACT FROM THE CASE, THAT
THERE WAS NO EVIDENCE OF NEGLIGENCE, AND THAT IN ANY EVENT PETITIONER
ASSUMED THE RISK.  THE TRIAL COURT DENIED THIS MOTION, BUT ON APPEAL IT
WAS HELD WELL TAKEN IN ALL RESPECTS. 

FOR OUR PURPOSES THE CASE RESOLVES INTO TWO QUESTIONS:  (1) GRANTING,
AS THE JURY FOUND, THAT THE TENDER DID NOT LEAK, COULD THE JURY
NEVERTHELESS FIND THAT THE BOILER INSPECTION ACT WAS VIOLATED BY THE
PRESENCE OF ICE ON THE TENDER'S TOP; AND (2) WAS THE JURY PROPERLY
INSTRUCTED THAT IT MIGHT SO FIND?  WE BELIEVE THAT BOTH QUESTIONS
SHOULD BE AFFIRMATIVELY ANSWERED AND THAT THE JUDGMENT BELOW SHOULD BE
REVERSED. 

THE BOILER INSPECTION ACT (SEC. 2) PROVIDES: 

"IT SHALL BE UNLAWFUL FOR ANY CARRIER TO USE OR PERMIT TO BE USED ON
ITS LINE ANY LOCOMOTIVE UNLESS SAID LOCOMOTIVE, ITS BOILER, TENDER, AND
ALL PARTS AND APPURTENANCES THEREOF ARE IN PROPER CONDITION AND SAFE TO
OPERATE IN THE SERVICE TO WHICH THE SAME ARE PUT, THAT THE SAME MAY BE
EMPLOYED IN THE ACTIVE SERVICE OF SUCH CARRIER WITHOUT UNNECESSARY
PERIL TO LIFE OR LIMB, AND UNLESS SAID LOCOMOTIVE, ITS BOILER, TENDER,
AND ALL PARTS AND APPURTENANCES THEREOF HAVE BEEN INSPECTED FROM TIME
TO TIME IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 28, 29, 30, AND
32 AND ARE ABLE TO WITHSTAND SUCH TEST OR TESTS AS MAY BE PRESCRIBED IN
THE RULES AND REGULATIONS HEREINAFTER PROVIDED FOR."  45 U.S.C. SEC.
23. 

NEGLIGENCE IS NOT THE BASIS FOR LIABILITY UNDER THE ACT.  INSTEAD, IT
"IMPOSES UPON THE CARRIER AN ABSOLUTE AND CONTINUING DUTY TO MAINTAIN
THE LOCOMOTIVE, AND ALL PARTS AND APPURTENANCES THEREOF, IN PROPER
CONDITION, AND SAFE TO OPERATE  ...  WITHOUT UNNECESSARY PERIL TO LIFE
OR LIMB."  SOUTHERN RY. CO. V. LUNSFORD, 297 U.S. 398, 401; BALTIMORE &
OHIO R. CO. V. GROEGER, 266 U.S. 521; CF. BRADY V. TERMINAL RAILROAD
ASSN., 303 U.S. 10.  ANY EMPLOYEE ENGAGED IN INTERSTATE COMMERCE WHO IS
INJURED BY REASON OF A VIOLATION OF THE ACT MAY BRING HIS ACTION UNDER
THE FEDERAL EMPLOYERS' LIABILITY ACT, CHARGING THE VIOLATION OF THE
BOILER INSPECTION ACT.  MOORE V. C. & O. RY. CO., 291 U.S. 205, 210
211; GREAT NORTHERN RY. CO. V. DONALDSON, 246 U.S. 121; BALTIMORE &
OHIO R. CO. V. GROEGER, SUPRA.  THE ACT, LIKE THE SAFETY APPLIANCE ACT,
IS TO BE LIBERALLY CONSTRUED IN THE LIGHT OF ITS PRIME PURPOSE, THE
PROTECTION OF EMPLOYEES AND OTHERS BY REQUIRING THE USE OF SAFE
EQUIPMENT.  CF. GREAT NORTHERN RY. CO. V. DONALDSON, SUPRA; ST. LOUIS,
I.M. & S. RY. CO. V. TAYLOR, 210 U.S. 281, 295-96; LOUISVILLE &
NASHVILLE R. CO. V. LAYTON, 243 U.S. 617, 621; SWINSON V. CHICAGO, ST.
P., M. & O. RY. CO., 294 U.S. 529, 531.  AND, THE INTERSTATE COMMERCE
COMMISSION IS BROADLY AUTHORIZED TO SET THE STANDARDS OF COMPLIANCE BY
PRESCRIBING "RULES AND REGULATIONS BY WHICH FITNESS FOR SERVICE (OF
LOCOMOTIVES, TENDERS AND THEIR APPURTENANCES) SHALL BE DETERMINED,"
NAPIER V. ATLANTIC COAST LINE, 272 U.S. 605, 612, PROVIDED THAT, IT HAS
BEEN SAID, THE COMMISSION FINDS SUCH ARE REQUIRED TO REMOVE UNNECESSARY
PERIL TO LIFE OR LIMB.  UNITED STATES V. B. & O.R. CO., 293 U.S. 454;
CF. SOUTHERN RY. CO. V. LUNSFORD, SUPRA.  WITH THESE CONSIDERATIONS IN
MIND, WE TURN TO THE FIRST QUESTION. 

THE USE OF A TENDER, UPON WHOSE TOP AN EMPLOYEE MUST GO IN THE COURSE
OF HIS DUTIES, WHICH IS COVERED WITH ICE SEEMS TO US TO INVOLVE
"UNNECESSARY PERIL TO LIFE OR LIMB" - ENOUGH SO AS TO PERMIT A JURY TO
FIND THAT THE BOILER INSPECTION ACT HAS BEEN VIOLATED.  FORTUNATELY, WE
ARE NOT LEFT WHOLLY TO OUR OWN RESOURCES IN CONSTRUING THE ACT IN THE
LIGHT OF ITS HUMANITARIAN PURPOSE.  THE INTERSTATE COMMERCE COMMISSION
HAS SET THE STANDARD HERE BY PROMULGATING A RULE (NO. 153) THAT THE
"TOP OF TENDER BEHIND FUEL SPACE SHALL BE KEPT CLEAN, AND MEANS
PROVIDED TO CARRY OFF WASTE WATER."  FN5  FROM THE PHRASING OF RULE 153
WE THINK IT AIMED AT REQUIRING THE TOP OF THE TENDER TO BE KEPT FREE OF
FOREIGN MATTER WHICH WOULD RENDER FOOTING INSECURE, FOR EXAMPLE, COAL,
DUST, DEBRIS, GREASE, WASTE WATER, AND ICE.  WHILE THE LOCOMOTIVE
INSPECTION RULES ARE GENERALLY DEVOTED TO DETAILS OF CONSTRUCTION AND
SPECIFICATION OF MATERIALS, AT LEAST ONE OTHER RULE DEALS WITH THE
CONDITION OF SURFACES UPON WHICH EMPLOYEES MUST STAND.  FN6  IN USING
THE WORD "CLEAN," THE COMMISSION MUST HAVE MEANT SOMETHING MORE THAN
MERE MANNER OF CONSTRUCTION OR MECHANICAL OPERATION, BECAUSE "CLEAN"
DOES NOT NATURALLY LEND ITSELF TO SUCH A LIMITED CONNOTATION.  THAT
SOMETHING MORE IS THE CONTINUING DUTY OF PROMOTING THE SAFETY OF
EMPLOYEES BY REMOVING FROM THE TOP OF THE TENDER ALL EXTRANEOUS
SUBSTANCES WHICH MIGHT MAKE STANDING THERE HAZARDOUS. 

FROM VARIOUS CASES DENYING RECOVERY UNDER THE ACT, RESPONDENT
ATTEMPTS TO EXTRACT A GENERAL RULE THAT THE ACT COVERS ONLY DEFECTS IN
CONSTRUCTION OR MECHANICAL OPERATION AND AFFORDS NO PROTECTION AGAINST
THE PRESENCE OF DANGEROUS OBJECTS OR FOREIGN MATTER.  FN7  BUT THERE IS
NO WARRANT IN THE LANGUAGE OF THE ACT FOR CONSTRUING IT SO NARROWLY, OR
FOR DENYING THE COMMISSION POWER TO REMEDY SHORTCOMINGS, OTHER THAN
PURELY MECHANICAL DEFECTS, WHICH MAY MAKE OPERATION UNSAFE.  THE ACT
WITHOUT LIMITATION SPEAKS OF EQUIPMENT "IN PROPER CONDITION AND SAFE TO
OPERATE  ...  WITHOUT UNNECESSARY PERIL TO LIFE OR LIMB."  CONDITIONS
OTHER THAN MECHANICAL IMPERFECTIONS CAN PLAINLY RENDER EQUIPMENT UNSAFE
TO OPERATE WITHOUT UNNECESSARY PERIL TO LIFE OR LIMB.  WHATEVER ELSE
MAY BE SAID ABOUT THE CASES RELIED UPON BY RESPONDENT, THEY ARE
SUFFICIENTLY DISTINGUISHABLE IN THAT THEY EITHER DID NOT INVOLVE OR DID
NOT CONSIDER RULE 153 OR ANY COMPARABLE REGULATION. 

RESPONDENT INSISTS THAT RELIANCE CANNOT BE PLACED ON RULE 153 BECAUSE
IT WAS NOT CALLED TO THE ATTENTION OF THE TRIAL COURT OR THE JURY AND
ITS INJECTION NOW WOULD INVOLVE DECIDING THE CASE ON ISSUES NOT
SUBMITTED TO THE JURY.  WE DO NOT REGARD THIS POINT AS WELL TAKEN.  NO
CLAIM IS ADVANCED THAT THE RULE IS INVALID, AND WE SEE NO REASON FOR
QUESTIONING IT.  ADOPTED IN THE EXERCISE OF THE COMMISSION'S AUTHORITY,
RULE 153 ACQUIRES THE FORCE OF LAW AND BECOMES AN INTEGRAL PART OF THE
ACT (CF. NAPIER V. ATLANTIC COAST LINE, SUPRA; UNITED STATES V. B. &
O.R. CO., SUPRA), TO BE JUDICIALLY NOTICED.  CAHA V. UNITED STATES, 152
U.S. 211, 221-22.  THE FAILURE OF PETITIONER'S COUNSEL TO CALL RULE 153
TO THE ATTENTION OF THE TRIAL COURT SHOULD NO MORE DEPRIVE PETITIONER
OF ITS BENEFITS THAN THE FAILURE TO PLEAD SPECIFICALLY THE FEDERAL
EMPLOYERS' LIABILITY ACT FORECLOSED THE APPLICATION OF THAT ACT ON
APPEAL TO TEST THE CORRECTNESS OF THE TRIAL JUDGE'S REFUSAL TO CHARGE
IN GRAND TRUNK WESTERN RY. CO. V. LINDSAY, 233 U.S. 42, ESPECIALLY
WHEN, AS HERE, THE RULE ONLY FORTIFIES A RESULT WHICH WE THINK THE JURY
COULD PROBABLY HAVE REACHED EVEN IN THE ABSENCE OF SUCH A RULE. 

CONCLUDING THAT THE JURY HAD A RIGHT TO FIND A VIOLATION OF THE
BOILER INSPECTION ACT BY REASON OF THE PRESENCE OF ICE ON THE TOP OF
THE TENDER EVEN THOUGH THERE WAS NO LEAK, WE TURN NOW TO THE SECOND
QUESTION:  WAS THE JURY PROPERLY INSTRUCTED THAT IT MIGHT SO FIND?  THE
COURT BELOW HELD AND RESPONDENT HERE EARNESTLY INSISTS THAT WITH REGARD
TO THE BOILER INSPECTION ACT THE CASE WAS TRIED SOLELY ON THE THEORY
THAT THE ONLY VIOLATION OF THAT ACT CHARGED WAS THAT THE TENDER LEAKED,
AND THE ANSWER TO THE SPECIAL INTERROGATORY THEREFORE REMOVED ALL
QUESTION OF VIOLATION OF THE ACT FROM THE CASE.  THIS WAS NOT THE VIEW
OF THE TRIAL JUDGE, AND, WHILE THE RECORD IS NOT AS SATISFACTORY AS WE
MIGHT WISH, WE AGREE WITH HIM. 

IT IS TRUE THAT BOTH CHARGES OF VIOLATION OF THE ACT DO ALLEGE THE
PRESENCE OF A LEAK, AND PETITIONER'S COUNSEL DID SAY IN HIS CLOSING
ARGUMENT TO THE JURY "SO, AS I SAY, GENTLEMEN, DON'T FIND THAT THERE
WAS NO LEAK, OR YOU PUT HIM (PETITIONER) OUT OF COURT."  BUT THERE IS
NO REASON TO PENALIZE PETITIONER FOR REMARKS OF COUNSEL UTTERED IN AN
EXCESS OF ZEAL, AND THE FULL TEXT OF THE COMPLAINT IS SUCH THAT IT IS
FAIR TO SAY THAT THE PRESENCE OF A LEAK WAS VITAL TO ONLY ONE CHARGE OF
VIOLATION OF THE ACT, BEING MERELY AN INCIDENTAL, NONESSENTIAL
ALLEGATION OF THE OTHER.  FN8 THIS WAS THE UNDERSTANDING OF THE TRIAL
JUDGE, UPON WHOM RESTS PRIMARILY THE FUNCTION OF INTERPRETING THE
PLEADINGS.  FOR, IN OVERRULING RESPONDENT'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT, THE TRIAL JUDGE SAID:  "NOW, WHETHER THERE
WAS A CRACK OR NOT, YET STILL THE QUESTION OF THE SAFETY APPLIANCE
(BOILER INSPECTION ACT) COULD REMAIN IN THERE IF THE COURT DID FEEL
THAT IT WAS THE DUTY OF THE DEFENDANT TO KEEP THE TENDER CLEAR SO THAT
THE MAN MIGHT OPERATE." 

IN HIS INSTRUCTIONS TO THE JURY, THE JUDGE READ THE BOILER INSPECTION
ACT AND STATED: 

"YOU ARE INSTRUCTED THAT UNDER THE LAW THE DEFENDANT WAS BOUND TO
FURNISH TO THE PLAINTIFF A LOCOMOTIVE, AT THE TIME IN QUESTION, WHICH
WAS SAFE TO BE USED, AND TO KEEP AND MAINTAIN THE SAME IN SUCH
CONDITION AT ALL TIMES SO AS NOT TO EXPOSE THE PLAINTIFF TO ANY HAZARD
OR RISK."  RESPONDENT TOOK NO EXCEPTION.  WE THINK THIS CHARGE
SUFFICIENTLY INFORMED THE JURY THAT IT COULD FIND A VIOLATION OF THE
ACT FROM THE PRESENCE OF ICE, EVEN IF THERE WERE NO LEAK.  EVIDENTLY
THIS WAS THE UNDERSTANDING OF THE JURY, BECAUSE IT FOUND NOTHING
INCONGRUOUS IN SIMULTANEOUSLY ANSWERING THE SPECIAL INTERROGATORY
NEGATIVELY AND RETURNING A GENERAL VERDICT FOR PETITIONER DESPITE
COUNSEL'S STATEMENT THAT A FINDING OF NO LEAK WOULD PUT HIS CLIENT OUT
OF COURT. 

SINCE PETITIONER'S INJURIES WERE THE RESULT OF RESPONDENT'S VIOLATION
OF THE BOILER INSPECTION ACT, THE PARTIAL DEFENSE OF CONTRIBUTORY
NEGLIGENCE AND THE BAR OF ASSUMPTION OF RISK ARE NOT AVAILABLE TO
RESPONDENT UNDER SECS. 3 AND 4 OF THE FEDERAL EMPLOYERS' LIABILITY ACT,
45 U.S.C. SECS. 53, 54, AS THOSE SECTIONS EXISTED AT THE DATE OF THE
ACCIDENT.  THIS DISPOSITION OF THE CASE MAKES IT UNNECESSARY TO
CONSIDER EITHER WHETHER RESPONDENT WAS GENERALLY NEGLIGENT, OR THE
MERITS OF PETITIONER'S CONTENTION, BASED ON THE PREMISE THAT RESPONDENT
WAS SO NEGLIGENT, THAT THE 1939 AMENDMENT TO SEC. 4 OF THE FEDERAL
EMPLOYERS' LIABILITY ACT, 53 STAT. 1404, COMPLETELY ABOLISHING THE
DEFENSE OF ASSUMPTION OF RISK IN ACTIONS UNDER THAT ACT, SHOULD BE
GIVEN RETROACTIVE APPLICATION.    UNDER THE FACTS OF THIS CASE AND THE
APPLICABLE LAW, THE JURY COULD RIGHTFULLY FIND FOR PETITIONER.  THE
BENEFITS OF THAT RIGHTFUL DETERMINATION SHOULD NOT HAVE BEEN TAKEN FROM
HIM. 

THE JUDGMENT BELOW IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  45 U.S.C. SECS. 51 ET SEQ. 

FN2  45 U.S.C. SECS. 22 ET SEQ. 

FN3  312 ILL. APP. 73, 37 N.E.2D 888. 

FN4  AT THE CLOSE OF HIS CASE, PETITIONER VOLUNTARILY DISMISSED TWO
ADDITIONAL COUNTS CHARGING GENERAL NEGLIGENCE IN SUPPLYING A DEFECTIVE
ROD AND HOOK, AND GENERAL NEGLIGENCE IN SUPPLYING A DEFECTIVE WATER
SPOUT. 

FN5  THE FULL TEXT OF RULE 153 FOLLOWS: 

"153.  FEED WATER TANKS.  - (A)  TANKS SHALL BE MAINTAINED FREE FROM
LEAKS, AND IN SAFE AND SUITABLE CONDITION FOR SERVICE.  SUITABLE
SCREENS MUST BE PROVIDED FOR TANK WELLS OR TANK HOSE. 

(B)  NOT LESS FREQUENTLY THAN ONCE EACH MONTH THE INTERIOR OF THE
TANK SHALL BE INSPECTED, AND CLEANED IF NECESSARY. 

(C)  TOP OF TENDER BEHIND FUEL SPACE SHALL BE KEPT CLEAN, AND MEANS
PROVIDED TO CARRY OFF WASTE WATER.  SUITABLE COVERS SHALL BE PROVIDED
FOR FILLING HOLES." 

SEE OFFICIAL PAMPHLET OF INTERSTATE COMMERCE COMMISSION, BUREAU OF
LOCOMOTIVE INSPECTION, ORDERS DATED OCTOBER 11, 1915, TO FEBRUARY 21,
1929; ROBERTS, FEDERAL LIABILITIES OF CARRIERS (2D ED.)  VOL. 2, P.
2069. 

FN6  RULE 117 PROVIDES: 

"117.  CAB APRONS.  - CAB APRONS SHALL BE OF PROPER LENGTH AND WIDTH
TO INSURE SAFETY.  APRONS MUST BE SECURELY HINGED, MAINTAINED IN A SAFE
AND SUITABLE CONDITION FOR SERVICE, AND ROUGHENED, OR OTHER PROVISION
MADE, TO AFFORD SECURE FOOTING." 

SEE OFFICIAL PAMPHLET, SUPRA, AND ROBERTS, OP. CIT., P. 2062. 

FN7  FORD V. N.Y., N.H. & H.R. CO., 54 F.2D 342(GREASE ON A
LOCOMOTIVE GRAB-IRON HELD NO VIOLATION OF SAFETY APPLIANCE AND BOILER
INSPECTION ACTS); REEVES V. CHICAGO, ST. P., M. & O. RY. CO., 147 MINN.
114, 179 N.W. 689(PRESENCE OF COAL UPON A STEP LEADING TO THE
LOCOMOTIVE CAB HELD NO VIOLATION OF SAFETY APPLIANCE AND BOILER
INSPECTION ACTS); SLATER V. CHICAGO, ST. P., M. & O. RY. CO., 146 MINN.
390, 178 N.W. 813(HOLDING NO CAUSE OF ACTION UNDER SAFETY APPLIANCE ACT
FOR INJURIES CAUSED BY AN ICE BUNKER DISPLACED BY A TRESPASSER SO IT
PROJECTED UPON THE RUNNING BOARD); CHICAGO, R.I. & P. RY. CO. V.
BENSON, 352 ILL. 195, 185 N.E. 244(SAFETY APPLIANCE ACT HELD NOT
VIOLATED BY WRAPPING WIRE AROUND GRAB-IRONS); HARLAN V. WABASH RY. CO.,
335 MO. 414, 73 S.W.2D 749(FAILURE OF FELLOW EMPLOYEES TO CLOSE A TRAP
DOOR IN THE CAB OVER THE STOKER HELD NO VIOLATION OF THE BOILER
INSPECTION AND SAFETY APPLIANCE ACTS); RILEY V. WABASH RY. CO., 328 MO.
910, 44 S.W.2D 136(HOLDING NO CAUSE OF ACTION EXISTED UNDER BOILER
INSPECTION ACT FOR INJURIES SUSTAINED BECAUSE A CLINKER HOOK WAS
MISPLACED ON A TENDER TOP BY A FELLOW SERVANT). 

FN8  THUS, WHILE A LEAK IS ALLEGED IN PARAGRAPH 4(D) OF THE
COMPLAINT, THE FULL TEXT MAKES IT CLEAR THAT THE GIST OF THE CHARGE IS
SIMPLY THE PRESENCE OF ICE: 

"D.  DEFENDANT DID THEN AND THERE UNLAWFULLY AND CONTRARY TO THE
FEDERAL SAFETY APPLIANCE ACT USE AND PERMIT TO BE USED ON ITS LINE OF
RAILWAY AT FERNDALE YARD A LOCOMOTIVE AND TENDER WHICH WAS IN IMPROPER
CONDITION AND UNSAFE TO OPERATE IN THE SERVICE, AND ITS CONDITION
CONSTITUTED UNNECESSARY PERIL TO LIFE AND LIMB IN THAT THE DEFENDANT
REQUIRED, CAUSED AND PERMITTED PLAINTIFF TO WORK ON THE TENDER OF THE
LOCOMOTIVE OF HIS TRAIN ON THE OCCASION ABOVE CHARGED, IN THE ACT OF
PUTTING WATER IN THE TENDER OF THE LOCOMOTIVE, THIS TENDER WAS UNSAFE
BECAUSE THE TOP WHERE THE PLAINTIFF WAS REQUIRED TO WORK WAS SLIPPERY
AND COVERED WITH ICE AND OTHER SLIPPERY MATERIALS TO ENDANGER HIS LIFE
OR LIMB, AND THE TENDER LEAKED THERE, AND WHILE HE WAS SO AT WORK, AS
ABOVE CHARGED, HE SLIPPED ON THIS SLIPPERY AND UNSAFE CONDITION ON TOP
OF THE TENDER AND WAS THROWN AND CAUSED TO FALL AND BE SERIOUSLY
INJURED." 

ON THE OTHER HAND, THE ESSENCE OF PARAGRAPH 4(E) IS THE PRESENCE OF A
LEAK, AS THE FOLLOWING FULL QUOTATION SHOWS: 

"E.  DEFENDANT DID THEN AND THERE UNLAWFULLY AND CONTRARY TO THE
FEDERAL SAFETY APPLIANCE ACT USE AND PERMIT TO BE USED ON ITS LINE OF
RAILWAY AT FERNDALE YARD, MICHIGAN, A LOCOMOTIVE AND TENDER WHICH WAS
IN IMPROPER CONDITION AND UNSAFE TO OPERATE IN THE SERVICE, AND ITS
CONDITION CONSTITUTED UNNECESSARY PERIL TO LIFE AND LIMB, IN THAT THE
DEFENDANT DID OPERATE THIS LOCOMOTIVE AND TENDER WITH THE TENDER OF
THIS LOCOMOTIVE AT THE PART WHERE THE WATER IS SUPPLIED TO AND POURED
INTO THE LOCOMOTIVE TO BE CRACKED, WORN AND SPLIT, SO AS TO OCCASION
AND PERMIT THE LEAKING OF WATER FROM AND THROUGH THIS CRACK, HOLE AND
APERTURE AND TO FLOOD, SEEP AND COVER THE TOP OF THE TENDER WHERE
PLAINTIFF WAS REQUIRED TO BE IN THE PERFORMANCE OF HIS DUTIES AS
EMPLOYEE, RENDERING IT LIKELY AND LIABLE FOR THE WATER TO FREEZE AND
CAUSE A DANGEROUS CONDITION, AND THEREBY, BY REASON OF THIS VIOLATION
ON THE PART OF THE DEFENDANT OF THIS FEDERAL SAFETY APPLIANCE ACT, THE
WATER IN THIS TENDER DID LEAK THROUGH THIS DEFECTIVE PLACE ONTO THE TOP
OF THE TENDER, AND DID FREEZE, AND IT THEREBY CAUSED PLAINTIFF, WHILE
HE WAS SO AT WORK, AS ABOVE CHARGED, ON THE TOP OF THIS TENDER, TO SLIP
AND BE THROWN AND SERIOUSLY INJURED." 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 
..END :






















SPIES V. UNITED STATES, 317 U.S. 492 


NO. 278.  ARGUED DECEMBER 18, 1942.  - DECIDED JANUARY 11, 1943.  - 128
F.2D 743, REVERSED. 


WILLFULLY TO ATTEMPT TO EVADE OR DEFEAT A TAX, IS NOT VIOLATED BY
WILLFUL OMISSIONS TO MAKE A RETURN AND PAY A TAX, DEFINED IN SEC.
145(A) AS MISDEMEANORS.  P. 497. 

SPIES V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 610, TO REVIEW THE AFFIRMANCE OF A CONVICTION
UPON AN INDICTMENT UNDER 26 U.S.C. SEC. 145(B) FOR ATTEMPTING TO EVADE
AND DEFEAT A FEDERAL INCOME TAX. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

PETITIONER HAS BEEN CONVICTED OF ATTEMPTING TO DEFEAT AND EVADE
INCOME TAX, IN VIOLATION OF SEC. 145(B) OF THE REVENUE ACT OF 1936, 49
STAT. 1648, 1703, NOW SEC. 145(B) OF THE INTERNAL REVENUE CODE.  THE
CIRCUIT COURT OF APPEALS FOUND THE ASSIGNMENT OF ERROR DIRECTED TO THE
CHARGE TO THE JURY THE ONLY ONE OF IMPORTANCE ENOUGH TO NOTICE.  THE
CHARGE FOLLOWED THE INTERPRETATION PUT UPON THIS SECTION OF THE STATUTE
IN O'BRIEN V. UNITED STATES, 51 F.2D 193(C.C.A. 7), AND UNITED STATES
V. MIRO, 60 F.2D 58(C.C.A. 2), WHICH FOLLOWED IT.  THE CIRCUIT COURT OF
APPEALS AFFIRMED, STATING THAT "WE MUST CONTINUE SO TO CONSTRUE THE
JUDGE SAID THAT AS A NEW MATTER HE WOULD DECIDE OTHERWISE AND EXPRESSED
APPROVAL OF THE DISSENT IN THE O'BRIEN CASE.  AS THE CONSTRUCTION OF
THE SECTION RAISES AN IMPORTANT QUESTION OF FEDERAL LAW NOT PASSED ON
BY THIS COURT, WE GRANTED CERTIORARI. 

PETITIONER ADMITTED AT THE OPENING OF THE TRIAL THAT HE HAD
SUFFICIENT INCOME DURING THE YEAR IN QUESTION TO PLACE HIM UNDER A
STATUTORY DUTY TO FILE A RETURN AND TO PAY A TAX, AND THAT HE FAILED TO
DO EITHER.  THE EVIDENCE DURING NEARLY TWO WEEKS OF TRIAL WAS DIRECTED
PRINCIPALLY TOWARD ESTABLISHING THE EXACT AMOUNT OF THE TAX AND THE
MANNER OF RECEIVING AND HANDLING INCOME AND ACCOUNTING, WHICH THE
GOVERNMENT CONTENDS SHOWS AN INTENT TO EVADE OR DEFEAT THE TAX. 
PETITIONER'S TESTIMONY RELATED TO HIS GOOD CHARACTER, HIS PHYSICAL
ILLNESS AT THE TIME THE RETURN BECAME DUE, AND LACK OF WILLFULNESS IN
HIS DEFAULTS, CHIEFLY BECAUSE OF A PSYCHOLOGICAL DISTURBANCE, AMOUNTING
TO SOMETHING MORE THAN WORRY BUT SOMETHING LESS THAN INSANITY. 

TAX OR MAKE A RETURN BY ONE HAVING PETITIONER'S INCOME AT THE TIME OR
TIMES REQUIRED BY LAW A MISDEMEANOR.  FN1  SECTION 145(B) MAKES A
WILLFUL ATTEMPT IN ANY MANNER TO EVADE OR DEFEAT ANY TAX SUCH AS HIS A
FELONY.  FN2 PETITIONER WAS NOT INDICTED FOR EITHER MISDEMEANOR.  THE
INDICTMENT CONTAINED A SINGLE COUNT SETTING FORTH THE FELONY CHARGE OF
WILLFULLY ATTEMPTING TO DEFEAT AND EVADE THE TAX, AND RECITED WILLFUL
FAILURE TO FILE A RETURN AND WILLFUL FAILURE TO PAY THE TAX AS THE
MEANS TO THE FELONIOUS END. 

THE PETITIONER REQUESTED AN INSTRUCTION THAT "YOU MAY NOT FIND THE
DEFENDANT GUILTY OF A WILLFUL ATTEMPT TO DEFEAT AND EVADE THE INCOME
TAX, IF YOU FIND ONLY THAT HE HAD WILLFULLY FAILED TO MAKE A RETURN OF
TAXABLE INCOME AND HAS WILLFULLY FAILED TO PAY THE TAX ON THAT
INCOME."  THIS WAS REFUSED, AND THE COURT CHARGED THAT "IF YOU FIND
THAT THE DEFENDANT HAD A NET INCOME FOR 1936 UPON WHICH SOME INCOME TAX
WAS DUE, AND I BELIEVE THAT IS CONCEDED, IF YOU FIND THAT THE DEFENDANT
WILLFULLY FAILED TO FILE AN INCOME TAX RETURN FOR THAT YEAR, IF YOU
FIND THAT THE DEFENDANT WILLFULLY FAILED TO PAY THE TAX DUE ON HIS
INCOME FOR THAT YEAR, YOU MAY, IF YOU FIND THAT THE FACTS AND
CIRCUMSTANCES WARRANT IT FIND THAT THE DEFENDANT WILLFULLY ATTEMPTED TO
EVADE OR DEFEAT THE TAX."  THE COURT REFUSED A REQUEST TO INSTRUCT THAT
AN AFFIRMATIVE ACT WAS NECESSARY TO CONSTITUTE A WILLFUL ATTEMPT, AND
CHARGED THAT "ATTEMPT MEANS TO TRY TO DO OR ACCOMPLISH.  IN ORDER TO
FIND AN ATTEMPT IT IS NOT NECESSARY TO FIND AFFIRMATIVE STEPS TO
ACCOMPLISH THE PROHIBITED PURPOSE.  AN ATTEMPT MAY BE FOUND ON THE
BASIS OF INACTIVITY OR ON REFRAINING TO ACT, AS WELL." 

IT IS THE GOVERNMENT'S CONTENTION THAT A WILLFUL FAILURE TO FILE A
RETURN, TOGETHER WITH A WILLFUL FAILURE TO PAY THE TAX, MAY, WITHOUT
MORE, CONSTITUTE AN ATTEMPT TO DEFEAT OR EVADE A TAX WITHIN SEC.
145(B).  PETITIONER CLAIMS THAT SUCH PROOF ESTABLISHES ONLY TWO
MISDEMEANORS UNDER SEC. 145(A), AND THAT IT TAKES MORE THAN THE SUM OF
TWO SUCH MISDEMEANORS TO MAKE THE FELONY UNDER SEC. 145(B).  THE
LEGISLATIVE HISTORY OF THE SECTION CONTAINS NOTHING HELPFUL ON THE
QUESTION HERE AT ISSUE, AND WE MUST FIND THE ANSWER FROM THE SECTION
ITSELF AND ITS CONTEXT IN THE REVENUE LAWS. 

THE UNITED STATES HAS RELIED FOR THE COLLECTION OF ITS INCOME TAX
LARGELY UPON THE TAXPAYER'S OWN DISCLOSURES RATHER THAN UPON A SYSTEM
OF WITHHOLDING THE TAX FROM HIM BY THOSE FROM WHOM INCOME MAY BE
RECEIVED.  THIS SYSTEM CAN FUNCTION SUCCESSFULLY ONLY IF THOSE WITHIN
AND NEAR TAXABLE INCOME KEEP AND RENDER TRUE ACCOUNTS.  IN MANY WAYS,
TAXPAYERS' NEGLECT OR DECEIT MAY PREJUDICE THE ORDERLY AND PUNCTUAL
ADMINISTRATION OF THE SYSTEM AS WELL AS THE REVENUES THEMSELVES. 
CONGRESS HAS IMPOSED A VARIETY OF SANCTIONS FOR THE PROTECTION OF THE
SYSTEM AND THE REVENUES.  THE RELATION OF THE OFFENSE OF WHICH THIS
PETITIONER HAS BEEN CONVICTED TO OTHER AND LESSER REVENUE OFFENSES
APPEARS MORE CLEARLY FROM ITS POSITION IN THIS STRUCTURE OF SANCTIONS. 

THE PENALTIES IMPOSED BY CONGRESS TO ENFORCE THE TAX LAWS EMBRACE
BOTH CIVIL AND CRIMINAL SANCTIONS.  THE FORMER CONSIST OF ADDITIONS TO
THE TAX UPON DETERMINATIONS OF FACT MADE BY AN ADMINISTRATIVE AGENCY
AND WITH NO BURDEN ON THE GOVERNMENT TO PROVE ITS CASE BEYOND A
REASONABLE DOUBT.  THE LATTER CONSIST OF PENAL OFFENSES ENFORCED BY THE
CRIMINAL PROCESS IN THE FAMILIAR MANNER.  INVOCATION OF ONE DOES NOT
EXCLUDE RESORT TO THE OTHER.  HELVERING V. MITCHELL, 303 U.S. 391. 

THE FAILURE IN A DUTY TO MAKE A TIMELY RETURN, UNLESS IT IS SHOWN
THAT SUCH FAILURE IS DUE TO REASONABLE CAUSE AND NOT DUE TO WILLFUL
NEGLECT, IS PUNISHABLE BY AN ADDITION TO THE TAX OF 5 TO 25 PER CENT
THEREOF, DEPENDING ON THE DURATION OF THE DEFAULT.  SEC. 291 OF THE
REVENUE ACT OF 1936 AND OF THE INTERNAL REVENUE CODE.  BUT A DUTY MAY
EXIST EVEN WHEN THERE IS NO TAX LIABILITY TO SERVE AS A BASE FOR
APPLICATION OF A PERCENTAGE DELINQUENCY PENALTY; THE DEFAULT MAY RELATE
TO MATTERS NOT IDENTIFIABLE WITH TAX FOR A PARTICULAR PERIOD; AND THE
OFFENSE MAY BE MORE GRIEVOUS THAN A CASE FOR CIVIL PENALTY.  HENCE THE
WILLFUL FAILURE TO MAKE A RETURN, KEEP RECORDS, OR SUPPLY INFORMATION
WHEN REQUIRED, IS MADE A MISDEMEANOR, WITHOUT REGARD TO EXISTENCE OF A
TAX LIABILITY.  SEC. 145(A).  PUNCTUALITY IS IMPORTANT TO THE FISCAL
SYSTEM, AND THESE ARE SANCTIONS TO ASSURE PUNCTUAL AS WELL AS FAITHFUL
PERFORMANCE OF THESE DUTIES. 

SANCTIONS TO INSURE PAYMENT OF THE TAX ARE EVEN MORE VARIED TO MEET
THE VARIETY OF CAUSES OF DEFAULT.  IT IS THE RIGHT AS WELL AS THE
INTEREST OF THE TAXPAYER TO LIMIT HIS ADMISSION OF LIABILITY TO THE
AMOUNT HE ACTUALLY OWES.  BUT THE LAW IS COMPLICATED, ACCOUNTING
TREATMENT OF VARIOUS ITEMS RAISES PROBLEMS OF GREAT COMPLEXITY, AND
INNOCENT ERRORS ARE NUMEROUS, AS APPEARS FROM THE NUMBER WHO MAKE
OVERPAYMENTS.  FN3  IT IS NOT THE PURPOSE OF THE LAW TO PENALIZE FRANK
DIFFERENCE OF OPINION OR INNOCENT ERRORS MADE DESPITE THE EXERCISE OF
REASONABLE CARE.  SUCH ERRORS ARE CORRECTED BY THE ASSESSMENT OF THE
DEFICIENCY OF TAX AND ITS COLLECTION WITH INTEREST FOR THE DELAY. 
SECS. 292 AND 294 OF THE REVENUE ACT OF 1936 AND OF THE INTERNAL
REVENUE CODE.  IF ANY PART OF THE DEFICIENCY IS DUE TO NEGLIGENCE OR
INTENTIONAL DISREGARD OF RULES AND REGULATIONS, BUT WITHOUT INTENT TO
DEFRAUD, FIVE PER CENT OF SUCH DEFICIENCY IS ADDED THERETO; AND IF ANY
PART OF ANY DEFICIENCY IS DUE TO FRAUD WITH INTENT TO EVADE TAX, THE
ADDITION IS 50 PER CENT THEREOF.  SEC. 293 OF THE REVENUE ACT OF 1936
AND OF THE INTERNAL REVENUE CODE.  WILLFUL FAILURE TO PAY THE TAX WHEN
DUE IS PUNISHABLE AS A MISDEMEANOR.  SEC. 145(A).  THE CLIMAX OF THIS
VARIETY OF SANCTIONS IS THE SERIOUS AND INCLUSIVE FELONY DEFINED TO
CONSIST OF WILLFUL ATTEMPT IN ANY MANNER TO EVADE OR DEFEAT THE TAX. 
SEC. 145(B).  THE QUESTION HERE IS WHETHER THERE IS A DISTINCTION
BETWEEN THE ACTS NECESSARY TO MAKE OUT THE FELONY AND THOSE WHICH MAY
MAKE OUT THE MISDEMEANOR. 

A FELONY MAY, AND FREQUENTLY DOES, INCLUDE LESSER OFFENSES IN
COMBINATION EITHER WITH EACH OTHER OR WITH OTHER ELEMENTS.  WE THINK IT
CLEAR THAT THIS FELONY MAY INCLUDE ONE OR SEVERAL OF THE OTHER OFFENSES
AGAINST THE REVENUE LAWS.  BUT IT WOULD BE UNUSUAL AND WE WOULD NOT
READILY ASSUME THAT CONGRESS BY THE FELONY DEFINED IN SEC. 145(B) MEANT
NO MORE THAN THE SAME DERELICTIONS IT HAD JUST DEFINED IN SEC. 145(A)
AS A MISDEMEANOR.  SUCH AN INTERPRETATION BECOMES EVEN MORE DIFFICULT
TO ACCEPT WHEN WE CONSIDER THIS FELONY AS THE CAPSTONE OF A SYSTEM OF
SANCTIONS WHICH SINGLY OR IN COMBINATION WERE CALCULATED TO INDUCE
PROMPT AND FORTHRIGHT FULFILLMENT OF EVERY DUTY UNDER THE INCOME TAX
LAW AND TO PROVIDE A PENALTY SUITABLE TO EVERY DEGREE OF DELINQUENCY. 

THE DIFFERENCE BETWEEN WILLFUL FAILURE TO PAY A TAX WHEN DUE, WHICH
IS MADE A MISDEMEANOR, AND WILLFUL ATTEMPT TO DEFEAT AND EVADE ONE,
WHICH IS MADE A FELONY, IS NOT EASY TO DETECT OR DEFINE.  BOTH MUST BE
WILLFUL, AND WILLFUL, AS WE HAVE SAID, IS A WORD OF MANY MEANINGS, ITS
CONSTRUCTION OFTEN BEING INFLUENCED BY ITS CONTEXT.  UNITED STATES V.
MURDOCK, 290 U.S. 389.  IT MAY WELL MEAN SOMETHING MORE AS APPLIED TO
NONPAYMENT OF A TAX THAN WHEN APPLIED TO FAILURE TO MAKE A RETURN. 
MERE VOLUNTARY AND PURPOSEFUL, AS DISTINGUISHED FROM ACCIDENTAL,
OMISSION TO MAKE A TIMELY RETURN MIGHT MEET THE TEST OF WILLFULNESS. 
BUT IN VIEW OF OUR TRADITIONAL AVERSION TO IMPRISONMENT FOR DEBT, WE
WOULD NOT WITHOUT THE CLEAREST MANIFESTATION OF CONGRESSIONAL INTENT
ASSUME THAT MERE KNOWING AND INTENTIONAL DEFAULT IN PAYMENT OF A TAX,
WHERE THERE HAD BEEN NO WILLFUL FAILURE TO DISCLOSE THE LIABILITY, IS
INTENDED TO CONSTITUTE A CRIMINAL OFFENSE OF ANY DEGREE.  WE WOULD
EXPECT WILLFULNESS IN SUCH A CASE TO INCLUDE SOME ELEMENT OF EVIL
MOTIVE AND WANT OF JUSTIFICATION IN VIEW OF ALL THE FINANCIAL
CIRCUMSTANCES OF THE TAXPAYER. 

HAD SEC. 145(A) NOT INCLUDED WILLFUL FAILURE TO PAY A TAX, IT WOULD
HAVE DEFINED AS MISDEMEANORS GENERALLY A FAILURE TO OBSERVE STATUTORY
DUTIES TO MAKE TIMELY RETURNS, KEEP RECORDS, OR SUPPLY INFORMATION -
DUTIES IMPOSED TO FACILITATE ADMINISTRATION OF THE ACT EVEN IF, BECAUSE
OF INSUFFICIENT NET INCOME, THERE WERE NO DUTY TO PAY A TAX.  IT WOULD
THEN BE A PERMISSIBLE AND PERHAPS AN APPROPRIATE CONSTRUCTION OF SEC.
145(B) THAT IT MADE FELONIES OF THE SAME WILLFUL OMISSIONS WHEN THERE
WAS THE ADDED ELEMENT OF DUTY TO PAY A TAX.  THE DEFINITION OF SUCH
NONPAYMENT AS A MISDEMEANOR, WE THINK, ARGUES STRONGLY AGAINST SUCH AN
INTERPRETATION. 

THE DIFFERENCE BETWEEN THE TWO OFFENSES, IT SEEMS TO US, IS FOUND IN
THE AFFIRMATIVE ACTION IMPLIED FROM THE TERM "ATTEMPT," AS USED IN THE
FELONY SUBSECTION.  IT IS NOT NECESSARY TO INVOLVE THIS SUBJECT WITH
THE COMPLEXITIES OF THE COMMON-LAW "ATTEMPT."  FN4  THE ATTEMPT MADE
CRIMINAL BY THIS STATUTE DOES NOT CONSIST OF CONDUCT THAT WOULD
CULMINATE IN A MORE SERIOUS CRIME BUT FOR SOME INPOSSIBILITY OF
COMPLETION OR INTERRUPTION OR FRUSTRATION.  THIS IS AN INDEPENDENT
CRIME, COMPLETE IN ITS MOST SERIOUS FORM WHEN THE ATTEMPT IS COMPLETE,
AND NOTHING IS ADDED TO ITS CRIMINALITY BY SUCCESS OR CONSUMMATION, AS
WOULD BE THE CASE, SAY, OF ATTEMPTED MURDER.  ALTHOUGH THE ATTEMPT
SUCCEED IN EVADING TAX, THERE IS NO CRIMINAL OFFENSE OF THAT KIND, AND
THE PROSECUTION CAN BE ONLY FOR THE ATTEMPT.  WE THINK THAT IN
EMPLOYING THE TERMINOLOGY OF ATTEMPT TO EMBRACE THE GRAVEST OF OFFENSES
AGAINST THE REVENUES, CONGRESS INTENDED SOME WILLFUL COMMISSION IN
ADDITION TO THE WILLFUL OMISSIONS THAT MAKE UP THE LIST OF
MISDEMEANORS.  WILLFUL BUT PASSIVE NEGLECT OF THE STATUTORY DUTY MAY
CONSTITUTE THE LESSER OFFENSE, BUT TO COMBINE WITH IT A WILLFUL AND
POSITIVE ATTEMPT TO EVADE TAX IN ANY MANNER OR TO DEFEAT IT BY ANY
MEANS LIFTS THE OFFENSE TO THE DEGREE OF FELONY. 

CONGRESS DID NOT DEFINE OR LIMIT THE METHODS BY WHICH A WILLFUL
ATTEMPT TO DEFEAT AND EVADE MIGHT BE ACCOMPLISHED AND PERHAPS DID NOT
DEFINE LEST ITS EFFORT TO DO SO RESULT IN SOME UNEXPECTED LIMITATION. 
NOR WOULD WE BY DEFINITION CONSTRICT THE SCOPE OF THE CONGRESSIONAL
PROVISION THAT IT MAY BE ACCOMPLISHED "IN ANY MANNER."  BY WAY OF
ILLUSTRATION, AND NOT BY WAY OF LIMITATION, WE WOULD THINK AFFIRMATIVE
WILLFUL ATTEMPT MAY BE INFERRED FROM CONDUCT SUCH AS KEEPING A DOUBLE
SET OF BOOKS, MAKING FALSE ENTRIES OR ALTERATIONS, OR FALSE INVOICES OR
DOCUMENTS, DESTRUCTION OF BOOKS OR RECORDS, CONCEALMENT OF ASSETS OR
COVERING UP SOURCES OF INCOME, HANDLING OF ONE'S AFFAIRS TO AVOID
MAKING THE RECORDS USUAL IN TRANSACTIONS OF THE KIND, AND ANY CONDUCT,
THE LIKELY EFFECT OF WHICH WOULD BE TO MISLEAD OR TO CONCEAL.  IF THE
TAX-EVASION MOTIVE PLAYS ANY PART IN SUCH CONDUCT THE OFFENSE MAY BE
MADE OUT EVEN THOUGH THE CONDUCT MAY ALSO SERVE OTHER PURPOSES SUCH AS
CONCEALMENT OF OTHER CRIME. 

IN THIS CASE THERE ARE SEVERAL ITEMS OF EVIDENCE APART FROM THE
DEFAULT IN FILING THE RETURN AND PAYING THE TAX WHICH THE GOVERNMENT
CLAIMS WILL SUPPORT AN INFERENCE OF WILLFUL ATTEMPT TO EVADE OR DEFEAT
THE TAX.  THESE GO TO ESTABLISH THAT PETITIONER INSISTED THAT CERTAIN
INCOME BE PAID TO HIM IN CASH, TRANSFERRED IT TO HIS OWN BANK BY
ARMORED CAR, DEPOSITED IT, NOT IN HIS OWN NAME BUT IN THE NAMES OF
OTHERS OF HIS FAMILY, AND KEPT INADEQUATE AND MISLEADING RECORDS. 
PETITIONER CLAIMS OTHER MOTIVES ANIMATED HIM IN THESE MATTERS.  WE
INTIMATE NO OPINION.  SUCH INFERENCES ARE FOR THE JURY.  IF ON PROPER
SUBMISSION THE JURY FOUND THESE ACTS, TAKEN TOGETHER WITH WILLFUL
FAILURE TO FILE A RETURN AND WILLFUL FAILURE TO PAY THE TAX, TO
CONSTITUTE A WILLFUL ATTEMPT TO EVADE OR DEFEAT THE TAX, WE WOULD
CONSIDER CONVICTION OF A FELONY SUSTAINABLE.  BUT WE THINK A DEFENDANT
IS ENTITLED TO A CHARGE WHICH WILL POINT OUT THE NECESSITY FOR SUCH AN
INFERENCE OF WILLFUL ATTEMPT TO DEFEAT OR EVADE THE TAX FROM SOME PROOF
IN THE CASE OTHER THAN THAT NECESSARY TO MAKE OUT THE MISDEMEANORS; AND
IF THE EVIDENCE FAILS TO AFFORD SUCH AN INFERENCE, THE DEFENDANT SHOULD
BE ACQUITTED. 

THE GOVERNMENT ARGUES AGAINST THIS CONSTRUCTION, CONTENDING THAT THE
MILDER PUNISHMENT OF A MISDEMEANOR AND THE BENEFITS OF A SHORT STATUTE
OF LIMITATION SHOULD NOT BE EXTENDED TO VIOLATORS OF THE INCOME TAX
LAWS SUCH AS POLITICAL GRAFTERS, GAMBLERS, RACKETEERS, AND GANGSTERS. 
WE DOUBT THAT THIS CONSTRUCTION WILL HANDICAP PROSECUTION FOR FELONY OF
SUCH FLAGRANT VIOLATORS.  FEW OF THEM, WE THINK, IN THEIR EFFORTS TO
ESCAPE TAX, STOP WITH MERE OMISSION OF THE DUTIES PUT UPON THEM BY THE
STATUTE, BUT IF SUCH THERE BE, THEY ARE ENTITLED TO BE CONVICTED ONLY
OF THE OFFENSE WHICH THEY HAVE COMMITTED.  REVERSED. 

FN1  "ANY PERSON REQUIRED UNDER THIS TITLE TO PAY ANY TAX, OR
REQUIRED BY LAW OR REGULATIONS MADE UNDER AUTHORITY THEREOF TO MAKE A
RETURN, KEEP ANY RECORDS, OR SUPPLY ANY INFORMATION, FOR THE PURPOSES
OF THE COMPUTATION, ASSESSMENT, OR COLLECTION OF ANY TAX IMPOSED BY
THIS TITLE, WHO WILLFULLY FAILS TO PAY SUCH TAX, MAKE SUCH RETURN, KEEP
SUCH RECORDS, OR SUPPLY SUCH INFORMATION, AT THE TIME OR TIMES REQUIRED
BY LAW OR REGULATIONS, SHALL, IN ADDITION TO OTHER PENALTIES PROVIDED
BY LAW, BE GUILTY OF A MISDEMEANOR AND, UPON CONVICTION THEREOF, BE
FINED NOT MORE THAN $10,000, OR IMPRISONED FOR NOT MORE THAN ONE YEAR,
OR BOTH, TOGETHER WITH THE COSTS OF PROSECUTION." 

FN2 "ANY PERSON REQUIRED UNDER THIS TITLE TO COLLECT, ACCOUNT FOR,
AND PAY OVER ANY TAX IMPOSED BY THIS TITLE, WHO WILLFULLY FAILS TO
COLLECT OR TRUTHFULLY ACCOUNT FOR AND PAY OVER SUCH TAX, AND ANY PERSON
WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR DEFEAT ANY TAX IMPOSED
BY THIS TITLE OR THE PAYMENT THEREOF, SHALL, IN ADDITION TO OTHER
PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY AND, UPON CONVICTION
THEREOF, BE FINED NOT MORE THAN $10,000, OR IMPRISONED FOR NOT MORE
THAN FIVE YEARS, OR BOTH, TOGETHER WITH THE COSTS OF PROSECUTION." 

FN3  THE FOLLOWING STATISTICS ARE GIVEN BY THE COMMISSIONER OF
INTERNAL REVENUE FOR THE FISCAL YEAR 1941:  73,627 CERTIFICATES OF
OVERASSESSMENT OF INCOME TAX ISSUED, FOR 39,730 OF WHICH NO CLAIMS HAD
BEEN FILED; 236,610 ASSESSMENTS OF ADDITIONAL INCOME TAXES MADE; 871
INVESTIGATIONS MADE OF ALLEGED EVASION OF INCOME AND MISCELLANEOUS
TAXES, WITH RECOMMENDATION FOR PROSECUTION IN 239 CASES INVOLVING 446
INDIVIDUALS, OF WHOM 192 WERE TRIED AND 156 CONVICTED.  THE TOTAL
NUMBER OF INCOME TAX RETURNS FILED WAS 16,052,007, OF WHICH NUMBER
7,867,319 REPORTED A TAX.  ANNUAL REPORT OF THE COMMISSIONER OF
INTERNAL REVENUE (1941), PP. 17, 20, 21, 22, 52, 108. 

FN4  HOLMES, THE COMMON LAW, PP. 65-70; HALL, CRIMINAL ATTEMPT - A
STUDY OF FOUNDATIONS OF CRIMINAL LIABILITY, 49 YALE LAW JOURNAL 789;
ARNOLD, CRIMINAL ATTEMPTS - THE RISE AND FALL OF AN ABSTRACTION, 40
YALE LAW JOURNAL 53. 
..END :








ENDICOTT JOHNSON CORP. V. PERKINS, 317 U.S. 501 


NO. 142.  ARGUED NOVEMBER 20, 1942.  - DECIDED JANUARY 11, 1943.  - 128
F.2D 208, AFFIRMED. 


1.  UPON AN APPLICATION BY THE SECRETARY OF LABOR TO A FEDERAL
DISTRICT COURT FOR ENFORCEMENT OF A SUBPOENA DUCES TECUM, ISSUED BY THE
SECRETARY IN PURSUANCE OF AN INVESTIGATION OF ALLEGED VIOLATIONS OF THE
WALSH-HEALEY PUBLIC CONTRACTS ACT AND REQUIRING THE PRODUCTION OF
PAYROLL AND SIMILAR RECORDS RELATING TO PLANTS OF THE CONTRACTOR OTHER
THAN THOSE SPECIFIED IN THE CONTRACT, THE DISTRICT COURT, IN THE
CIRCUMSTANCES OF THIS CASE, WAS WITHOUT AUTHORITY TO PROCEED TO HEAR
AND DETERMINE WHETHER THE ACT AND CONTRACT COVERED SUCH PLANTS, AND IT
WAS ITS DUTY TO ORDER ENFORCEMENT OF THE SUBPOENA.  P. 506. 

2.  THE DELEGATION TO THE SECRETARY OF LABOR OF THE SUBPOENA POWER,
AS HERE EXERCISED, WAS WITHIN THE AUTHORITY OF CONGRESS.  P. 510. 

ENDICOTT JOHNSON CORP. ET AL. V. PERKINS, SECRETARY OF LABOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 607, TO REVIEW THE REVERSAL OF ORDERS OF THE
DISTRICT COURT, 37 F.SUPP.  604 AND 40 F.SUPP.  254, REFUSING
ENFORCEMENT OF SUBPOENAS DUCES TECUM ISSUED BY THE SECRETARY OF LABOR
PURSUANT TO THE WALSH-HEALEY PUBLIC CONTRACTS ACT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS CASE CONCERNS THE VALIDITY OF A SUBPOENA ISSUED BY THE SECRETARY
OF LABOR IN ADMINISTRATIVE PROCEEDINGS AGAINST THE PETITIONER UNDER THE
WALSH-HEALEY PUBLIC CONTRACTS ACT.  FN1  THE PETITIONER SUCCESSFULLY
RESISTED THE SECRETARY'S PETITION FOR ENFORCEMENT IN THE DISTRICT
COURT, FN2  WHOSE JUDGMENT WAS IN TURN REVERSED BY THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT.  FN3  WE GRANTED CERTIORARI BECAUSE OF
THE IMPORTANCE OF THE QUESTIONS IN THE ENFORCEMENT OF THE ACT, AND
BECAUSE OF PROBABLE CONFLICT WITH A HOLDING OF THE CIRCUIT COURT OF
APPEALS FOR THE SIXTH CIRCUIT.  FN4 

THE WALSH-HEALEY ACT REQUIRES THAT CONTRACTS WITH THE GOVERNMENT FOR
THE "MANUFACTURE OR FURNISHING OF MATERIALS, SUPPLIES, ARTICLES, AND
EQUIPMENT IN ANY AMOUNT EXCEEDING $10,000" SHALL REPRESENT AND
STIPULATE, INTER ALIA, FOR THE PAYMENT OF "NOT LESS THAN THE MINIMUM
WAGES AS DETERMINED BY THE SECRETARY OF LABOR" (SEC. 1(B)), AND THAT
"NO PERSON EMPLOYED BY THE CONTRACTOR IN THE MANUFACTURE OR FURNISHING
OF THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT USED IN THE
PERFORMANCE OF THE CONTRACT SHALL BE PERMITTED TO WORK IN EXCESS OF
EIGHT HOURS IN ANY ONE DAY OR IN EXCESS OF FORTY HOURS IN ANY ONE WEEK"
(SEC. 1(C)); BUT PROVIDES THAT THE SECRETARY MAY ALLOW EXEMPTIONS FROM
THE MINIMUM WAGE PROVISIONS, AND PERMIT INCREASES IN THE STIPULATED
MAXIMUM HOURS ON PAYMENT OF WAGES AT "NOT LESS THAN ONE AND ONE-HALF
TIMES THE BASIC HOURLY RATE RECEIVED BY ANY EMPLOYEE AFFECTED."  (SEC.
6.) 

THE ACT PROVIDES FOR LIQUIDATED DAMAGES FOR VIOLATIONS OF REQUIRED
STIPULATIONS IN THE CONTRACT (SEC. 2); AND, FURTHER, THAT "UNLESS THE
SECRETARY OF LABOR OTHERWISE RECOMMENDS" NO GOVERNMENT CONTRACT SHALL
BE AWARDED TO THE FIRM OR SUBSIDIARIES OF THE FIRM WHICH HE FINDS TO
HAVE DEFAULTED IN ITS OBLIGATION UNDER THE ACT "UNTIL THREE YEARS HAVE
ELAPSED FROM THE DATE THE SECRETARY OF LABOR DETERMINES SUCH BREACH TO
HAVE OCCURRED."  (SEC. 3.) 

THE SECRETARY IS DIRECTED "TO ADMINISTER THE PROVISIONS OF THIS ACT"
AND EMPOWERED TO "MAKE INVESTIGATIONS AND FINDINGS AS HEREIN PROVIDED,
AND PROSECUTE ANY INQUIRY NECESSARY TO HIS FUNCTIONS."  (SEC. 4.)  AND
THAT HE MAY THE BETTER AND THE MORE FAIRLY DISCHARGE HIS FUNCTIONS, HE
IS AUTHORIZED TO HOLD HEARINGS "ON COMPLAINT OF A BREACH OR VIOLATION
OF ANY REPRESENTATION OR STIPULATION" AND "TO ISSUE ORDERS REQUIRING
THE ATTENDANCE AND TESTIMONY OF WITNESSES AND THE PRODUCTION OF
EVIDENCE UNDER OATH.  ...  IN CASE OF CONTUMACY, FAILURE, OR REFUSAL OF
ANY PERSON TO OBEY SUCH AN ORDER," THE DISTRICT COURT OF THE UNITED
STATES "SHALL HAVE JURISDICTION TO ISSUE TO SUCH PERSON AN ORDER
REQUIRING SUCH PERSON TO APPEAR BEFORE HIM OR REPRESENTATIVE DESIGNATED
BY HIM, TO PRODUCE EVIDENCE IF, AS, AND WHEN SO ORDERED, AND TO GIVE
TESTIMONY RELATING TO THE MATTER UNDER INVESTIGATION OR IN QUESTION;
AND ANY FAILURE TO OBEY SUCH ORDER OF THE COURT MAY BE PUNISHED BY SAID
COURT AS A CONTEMPT THEREOF."  THE SECRETARY IS DIRECTED TO MAKE
"FINDINGS OF FACT AFTER NOTICE AND HEARING, WHICH FINDINGS SHALL BE
CONCLUSIVE UPON ALL AGENCIES OF THE UNITED STATES, AND IF SUPPORTED BY
THE PREPONDERANCE OF THE EVIDENCE, SHALL BE CONCLUSIVE IN ANY COURT OF
THE UNITED STATES; AND THE SECRETARY OF LABOR  ...  SHALL HAVE THE
POWER, AND IS HEREBY AUTHORIZED, TO MAKE SUCH DECISIONS, BASED UPON
FINDINGS OF FACT, AS ARE DEEMED TO BE NECESSARY TO ENFORCE THE
PROVISIONS OF THIS ACT."  (SEC. 5.) 

PURSUANT TO HER AUTHORITY UNDER THE ACT, THE SECRETARY IN 1937
DEFINED BY RULINGS THE COVERAGE OF THE ACT.  SHE PROVIDED, INTER ALIA,
THAT "EMPLOYEES ENGAGED IN OR CONNECTED WITH THE MANUFACTURE,
FABRICATION, ASSEMBLING, HANDLING, SUPERVISION, OR SHIPMENT OF
MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT USED IN THE PERFORMANCE OF
THE CONTRACT" MIGHT BE EMPLOYED OVERTIME, AT "ONE AND ONE-HALF TIMES
THE BASIC HOURLY RATE OR PIECE RATE RECEIVED BY THE EMPLOYEE."  FN5
STIPULATIONS AS TO MINIMUM WAGES WERE MADE TO "APPLY ONLY TO PURCHASES
OR CONTRACTS RELATING TO SUCH INDUSTRIES AS HAVE BEEN THE SUBJECT OF A
DETERMINATION BY THE SECRETARY OF LABOR."  FN6 THEREAFTER, AND ON
DECEMBER 21, 1937, SHE MADE A DETERMINATION OF MINIMUM WAGES TO BE PAID
EMPLOYEES "ENGAGED IN THE PERFORMANCE OF CONTRACTS  ...  FOR THE
MANUFACTURE OR SUPPLY OF MEN'S WELT SHOES."  ON SEPTEMBER 29, 1939, AND
AFTER THE COMPLETION OF THE CONTRACTS INVOLVED IN THIS CASE, THE
SECRETARY ISSUED RULINGS SPECIFICALLY DEALING WITH "INTEGRATED
ESTABLISHMENTS."  FN7 

FROM THE PLEADINGS IN THE DISTRICT COURT AND ADMITTED STATEMENTS IN
AFFIDAVITS FILED, THERE APPEAR THE FOLLOWING FACTS: 

BETWEEN OCTOBER 26, 1936, AND JUNE 8, 1938, PETITIONER WAS AWARDED
SEVERAL CONTRACTS FOR BOOTS, SHOES, GYMNASIUM SHOES AND ARCTIC
OVERSHOES.  EACH WAS FOR AN AMOUNT IN EXCESS OF $10,000, AND EACH
CONTRACT INCLUDED REPRESENTATIONS AND STIPULATIONS IN ACCORDANCE WITH
THE ACT AND THE SECRETARY'S RULINGS THEREUNDER SET OUT ABOVE.  BIDS FOR
AND AWARDS OF THE CONTRACTS DESIGNATED THE PLACES OF MANUFACTURE, AND
MANUFACTURE ELSEWHERE WAS FORBIDDEN.  FN8  IN THE PLANTS SO SPECIFIED,
NOTICES REQUIRED BY THE CONTRACT WERE POSTED,  FN9  AND THERE THE
PETITIONER ADMITTED AN OBLIGATION AND APPARENTLY INTENDED TO COMPLY
WITH THE ACT AND CONTRACT.  THE VIOLATIONS CLAIMED IN THOSE PLANTS ARE
MINOR, IF ANY; PETITIONER OFFERED TO ADJUST ANY VIOLATION FOUND THERE
AND IT HAS WILLINGLY FURNISHED COMPLETE RECORDS AND INFORMATION AS TO
THOSE PLANTS AND THOSE EMPLOYED IN THEM.  BUT THERE ENDED, THE
PETITIONER CLAIMS, BOTH THE INVESTIGATORY POWER OF THE SECRETARY AND
ITS OBLIGATION TO MAKE ITS RECORDS AVAILABLE. 

THE SECRETARY DID NOT AGREE, AND INSTITUTED AN ADMINISTRATIVE
PROCEEDING AGAINST PETITIONER, CHARGING VIOLATION OF THE STIPULATIONS
IN THE CONTRACT BY VIRTUE OF PAYMENTS BY PETITIONER OF LESS THAN THE
MINIMUM WAGES DETERMINED BY HER ON DECEMBER 21, 1937, FOR THE
"MANUFACTURE OR SUPPLY OF MEN'S WELT SHOES," AND OF FAILURE TO MAKE
REQUIRED ADDITIONAL PAYMENTS FOR OVERTIME WORK, IN OTHER AND PHYSICALLY
SEPARATE PLANTS OWNED AND OPERATED BY THE PETITIONER.  IN THOSE PLANTS,
IT MANUFACTURED PARTS SUCH AS COUNTERS AND RUBBER HEELS, TANNED LEATHER
FOR UPPERS AND SOLES, AND MADE CARTONS FOR PACKAGING SHOES FOR THE
GOVERNMENT, AS WELL AS FOR ITS CIVILIAN CUSTOMERS.  THE SUBPOENA IN
QUESTION ISSUED IN THIS PROCEEDING CALLED FOR RECORDS CHIEFLY RELATING
TO PAYROLLS IN SUCH PLANTS, AND AS TO THEM THE PETITIONER REFUSED TO
COMPLY. 

TO OBTAIN THE COMPLIANCE TO THE SUBPOENA WHICH PETITIONER REFUSED,
THE SECRETARY HAD RESORT TO THE DISTRICT COURT AS PROVIDED BY SEC. 5,
ALLEGING THE FOREGOING FACTS AND THAT "FOLLOWING AN INVESTIGATION BY
REPRESENTATIVES OF THE DEPARTMENT OF LABOR, AND IT HAVING APPEARED TO
THE PLAINTIFF UPON THE BASIS OF SUCH INVESTIGATION THAT DEFENDANT" HAD
VIOLATED THESE STIPULATIONS OF THE CONTRACTS, SHE COMMENCED SUCH
PROCEEDING; AND THAT "PLAINTIFF HAS REASON TO BELIEVE, AND SAID AMENDED
(ADMINISTRATIVE) COMPLAINT ALLEGES, THAT THE PERSONS EMPLOYED" AND
ALLEGED TO HAVE BEEN UNDERPAID "IN ITS CALFSKIN TANNERY, UPPER LEATHER
TANNERY, SOLE LEATHER TANNERY, PARACORD FACTORY, SOLE CUTING DEPARTMENT
(JOHNSON CITY), SOLE CUTTING DEPARTMENT (ENDICOTT), COUNTER DEPARTMENT
(JOHNSON CITY), AND CARTON DEPARTMENT (JOHNSON CITY) WERE EMPLOYED BY
IT IN PERFORMANCE OF THE CONTRACTS SPECIFIED," AND THAT SUCH
ALLEGATIONS WERE DENIED BY THE ANSWER IN THE ADMINISTRATIVE
PROCEEDINGS. 

THE CORPORATION PLEADED TO THE DISTRICT COURT ITS OWNERSHIP AND
MANAGEMENT OF THE PLANTS IN QUESTION AND THAT THE RUBBER HEELS AND
SOLES, THE COUNTERS, CARTONS, AND ALL EXCEPT A PORTION OF THE LEATHER
SOLES "USED IN THE MANUFACTURE" OF THE GOVERNMENT FOOTWEAR, "WERE
MANUFACTURED" IN ITS SEVERAL SEPARATE PLANTS OR DEPARTMENTS.  IT ALSO
SET FORTH IN FULL ITS ANSWER IN THE ADMINISTRATIVE PROCEEDING AND
REASONS WHY IT CONSIDERED "ARBITRARY, ARTIFICIAL, UNREASONABLE,
DISCRIMINATORY, AND CAPRICIOUS" THE RULING OF THE SECRETARY THAT THE
ACT AND CONTRACT APPLIED TO THE PLANTS OTHER THAN THOSE SPECIFICALLY
NAMED IN THE CONTRACTS.  IT DENIED THAT THE PAYROLL AND SIMILAR RECORDS
SOUGHT AS TO SUCH PLANTS WERE RELEVANT TO THE DETERMINATION OF ANY
MATTER CONFIDED TO THE SECRETARY'S DETERMINATION. 

THE DISTRICT COURT DENIED THE SECRETARY'S MOTION ON THE PLEADINGS AND
ACCOMPANYING AFFIDAVITS FOR AN ENFORCEMENT ORDER, OVERRULED HER
CONTENTION THAT IT WAS FOR HER TO DECIDE THIS ISSUE IN THE
ADMINISTRATIVE PROCEEDING, AND SET THE CASE DOWN FOR TRIAL ON THE
QUESTION OF WHETHER THE ACT AND CONTRACTS UNDER THE CIRCUMSTANCES
COVERED THE SEPARATE PLANTS. 

WE THINK THAT THE ADMITTED FACTS LEFT NO DOUBT THAT UNDER THE STATUTE
DETERMINATION OF THAT ISSUE WAS PRIMARILY THE DUTY OF THE SECRETARY. 

THE ACT DIRECTS THE SECRETARY TO ADMINISTER ITS PROVISIONS.  IT IS
NOT AN ACT OF GENERAL APPLICABILITY TO INDUSTRY.  IT APPLIES ONLY TO
CONTRACTORS WHO VOLUNTARILY ENTER INTO COMPETITION TO OBTAIN GOVERNMENT
BUSINESS ON TERMS OF WHICH THEY ARE FAIRLY FOREWARNED BY INCLUSION IN
THE CONTRACT.  ITS PURPOSE IS TO USE THE LEVERAGE OF THE GOVERNMENT'S
IMMENSE PURCHASING POWER TO RAISE LABOR STANDARDS. 

CONGRESS SUBMITTED THE ADMINISTRATION OF THE ACT TO THE JUDGMENT OF
THE SECRETARY OF LABOR, NOT TO THE JUDGMENT OF THE COURTS.  FN10  ONE
OF HER PRINCIPAL FUNCTIONS IS THE CONCLUSIVE DETERMINATION OF QUESTIONS
OF FACT FOR THE GUIDANCE OF PROCUREMENT OFFICERS IN WITHHOLDING AWARDS
OF GOVERNMENT CONTRACTS TO THOSE SHE FINDS TO BE VIOLATORS FOR THREE
YEARS FROM THE DATE OF THE BREACH. 

THE MATTER WHICH THE SECRETARY WAS INVESTIGATING AND WAS AUTHORIZED
TO INVESTIGATE WAS AN ALLEGED VIOLATION OF THIS ACT AND THESE
CONTRACTS.  HER SCOPE WOULD INCLUDE DETERMINING WHAT EMPLOYEES THESE
CONTRACTS AND THE ACT COVERED.  IT WOULD ALSO INCLUDE WHETHER THE
PAYMENTS TO THEM WERE LOWER THAN THE SCALE FIXED PURSUANT TO THE ACT. 
SHE COULD NOT PERFORM HER FULL STATUTORY DUTY UNTIL SHE EXAMINED
UNDERPAYMENTS WHEREVER THE COVERAGE EXTENDED, BECAUSE UNDERPAYMENT IS
AN INDISPENSABLE, ALBEIT NOT THE ONLY, ELEMENT OF PROOF OF VIOLATION. 
IT IS THE ONLY BASIS ON WHICH SHE CAN COMPUTE LIQUIDATED DAMAGE AS SHE
IS REQUIRED TO DO, AND IT IS NECESSARY TO FIND THE DATE OF THE LAST
UNDERPAYMENT TO FIX THE BEGINNING OF THE THREE-YEAR PERIOD OF
DISQUALIFICATION FOR FURTHER CONTRACTS.  THUS THE PAYROLLS ARE CLEARLY
RELATED TO THE VIOLATION.  INDEED, THE UNDERPAYMENT IS ITSELF THE
VIOLATION UNDER INVESTIGATION. 

OF COURSE ANOTHER INDISPENSABLE ELEMENT OF VIOLATION IS THAT THE
UNDERPAID EMPLOYEE BE INCLUDED WITHIN THE BENEFITS OF THE ACT AND
CONTRACTS.  THIS, TOO, WAS A MATTER UNDER INVESTIGATION IN THE
ADMINISTRATIVE PROCEEDING.  BUT BECAUSE SHE SOUGHT EVIDENCE OF
UNDERPAYMENT BEFORE SHE MADE A DECISION ON THE QUESTION OF COVERAGE AND
ALLEGED THAT SHE "HAD REASON TO BELIEVE" THE EMPLOYEES IN QUESTION WERE
COVERED, THE DISTRICT COURT REFUSED TO ORDER ITS PRODUCTION, TRIED THE
ISSUE OF COVERAGE ITSELF, AND DECIDED IT AGAINST THE SECRETARY.  THIS
RULING WOULD REQUIRE THE SECRETARY, IN ORDER TO GET EVIDENCE OF
VIOLATION, EITHER TO ALLEGE SHE HAD DECIDED THE ISSUE OF COVERAGE
BEFORE THE HEARING OR TO SEVER THE ISSUES FOR SEPARATE HEARING AND
DECISION.  THE FORMER WOULD BE OF DUBIOUS PROPRIETY, AND THE LATTER OF
DOUBTFUL PRACTICALITY.  THE SECRETARY IS GIVEN NO POWER TO INVESTIGATE
MERE COVERAGE, AS SUCH, OR TO MAKE FINDINGS THEREON EXCEPT AS INCIDENT
TO TRIAL OF THE ISSUE OF VIOLATION.  NO DOUBT SHE WOULD HAVE DISCRETION
TO TAKE UP THE ISSUES OF COVERAGE FOR SEPARATE AND EARLIER TRIAL IF SHE
SAW FIT.  OR, IN A CASE SUCH AS THE ONE REVEALED BY THE PLEADINGS IN
THIS ONE, SHE MIGHT FIND IT ADVISABLE TO BEGIN BY EXAMINING THE
PAYROLL, FOR IF THERE WERE NO UNDERPAYMENTS FOUND, THE ISSUE OF
COVERAGE WOULD BE ACADEMIC.  ON THE ADMITTED FACTS OF THE CASE, THE
DISTRICT COURT HAD NO AUTHORITY TO CONTROL HER PROCEDURE OR TO
CONDITION ENFORCEMENT OF HER SUBPOENAS UPON HER FIRST REACHING AND
ANNOUNCING A DECISION ON SOME OF THE ISSUES IN HER ADMINISTRATIVE
PROCEEDING. 

NOR WAS THE DISTRICT COURT AUTHORIZED TO DECIDE THE QUESTION OF
COVERAGE ITSELF.  THE EVIDENCE SOUGHT BY THE SUBPOENA WAS NOT PLAINLY
INCOMPETENT OR IRRELEVANT TO ANY LAWFUL PURPOSE OF THE SECRETARY IN THE
DISCHARGE OF HER DUTIES UNDER THE ACT, AND IT WAS THE DUTY OF THE
DISTRICT COURT TO ORDER ITS PRODUCTION FOR THE SECRETARY'S
CONSIDERATION.  THE SECRETARY MAY TAKE THE SAME VIEW OF THE EVIDENCE
THAT THE DISTRICT COURT DID, OR SHE MAY NOT.  THE CONSEQUENCE OF THE
ACTION OF THE DISTRICT COURT WAS TO DISABLE THE SECRETARY FROM
RENDERING A COMPLETE DECISION ON THE ALLEGED VIOLATION AS CONGRESS HAD
DIRECTED HER TO DO, AND THAT DECISION WAS STATED BY THE ACT TO BE
CONCLUSIVE AS TO MATTERS OF FACT FOR PURPOSES OF THE AWARD OF
GOVERNMENT CONTRACTS.  CONGRESS SOUGHT TO HAVE THE PROCUREMENT OFFICERS
ADVISED BY THE EXPERIENCE AND DISCRETION OF THE SECRETARY RATHER THAN
OF THE DISTRICT COURT.  TO PERFORM HER FUNCTION SHE MUST DRAW
INFERENCES AND MAKE FINDINGS FROM THE SAME CONFLICTING MATERIALS THAT
THE DISTRICT COURT CONSIDERED IN ANTICIPATING AND FORECLOSING HER
CONCLUSIONS.    THE PETITIONER HAS ADVANCED MANY MATTERS THAT ARE
ENTITLED TO HEARING AND CONSIDERATION IN ITS DEFENSE AGAINST THE
ADMINISTRATIVE COMPLAINT, BUT THEY ARE NOT OF A KIND THAT CAN BE
ACCEPTED AS A DEFENSE AGAINST THE SUBPOENA.  FN11    THE SUBPOENA POWER
DELEGATED BY THE STATUTE AS HERE EXERCISED IS SO CLEARLY WITHIN THE
LIMITS OF CONGRESSIONAL AUTHORITY THAT IT IS NOT NECESSARY TO DISCUSS
THE CONSTITUTIONAL QUESTIONS URGED BY THE PETITIONER, AND ON THE RECORD
BEFORE US THE CASES ON WHICH IT RELIES FN12  ARE INAPPLICABLE AND DO
NOT REQUIRE CONSIDERATION.  AFFIRMED. 

FN1  49 STAT. 2036; 41 U.S.C. SEC. 35-45. 

THE PROCEEDINGS WERE INSTITUTED AGAINST BOTH PETITIONERS, THE
ENDICOTT JOHNSON CORPORATION AND ITS SECRETARY, AND BOTH PARTICIPATED
IN THE SUBSEQUENT LITIGATION.  FOR CONVENIENCE WE REFER TO BOTH AS "THE
PETITIONER." 

FN2  37 F.SUPP.  604 AND 40 F.SUPP.  254. 

FN3  128 F.2D 208. 

FN4  GENERAL TOBACCO & GROCERY CO. V. FLEMING, 125 F.2D 596. 

FN5  RULINGS AND INTERPRETATIONS UNDER THE WALSH-HEALEY PUBLIC
CONTRACTS ACT, NO. 1, SEC. 4(2)(A). 

FN6  IBID. SEC. 4(1). 

FN7  RULINGS AND INTERPRETATIONS NO. 2, PROVIDING IN SEC. 1(2): 

"WHEN A CONTRACTOR TO WHOM A CONTRACT SUBJECT TO THE ACT IS AWARDED
OPERATES AN INTEGRATED ESTABLISHMENT WHICH MANUFACTURES OR PRODUCES
MATERIALS OR SUPPLIES THAT ARE INCORPORATED INTO OR OTHERWISE USED IN
THE MANUFACTURE OR SUPPLY OF THE MATERIALS, SUPPLIES, ARTICLES, OR
EQUIPMENT CALLED FOR BY THE CONTRACT, THE ACT IS APPLICABLE TO THOSE
DEPARTMENTS WHICH ARE ENGAGED IN THE MANUFACTURE OR PRODUCTION OF THE
MATERIALS OR SUPPLIES TO BE SO INCORPORATED INTO OR USED IN THE
MANUFACTURE OR PROCESSING OF THE ULTIMATE PRODUCT TO BE DELIVERED TO
THE GOVERNMENT AS WELL AS TO THE EMPLOYEES ENGAGED IN THE MANUFACTURE
OR PROCESSING OF THAT ULTIMATE PRODUCT.  FOR EXAMPLE: THE PROCESSING OF
THE LEATHER AND RUBBER FOR THE SHOES SUPPLIED UNDER GOVERNMENT
CONTRACTS SUBJECT TO THE ACT IS WITHIN THE PURVIEW OF THE ACT AND
REGULATIONS, AND COMPLIANCE THEREWITH IS ESSENTIAL." 

FN8  THE BID STATED: 

"BIDDERS MUST STATE IN SPACE PROVIDED BELOW NAMES AND LOCATIONS OF
THE FACTORIES WHERE MANUFACTURE OF THE ITEM BID UPON WILL BE
PERFORMED.  THE PERFORMING OF ANY OF THE WORK CONTRACTED FOR IN ANY
PLACE OTHER THAN THAT NAMED IN THE BID IS PROHIBITED UNLESS THE SAME IS
SPECIFICALLY APPROVED IN ADVANCE BY THE CONTRACTING OFFICER.  IF MORE
THAN ONE PLACE OF MANUFACTURE IS NAMED, THE QUANTITY TO BE MANUFACTURED
IN EACH PLACE MUST BE GIVEN." 

A TYPICAL STATEMENT IN RESPONSE IS: 

NAMES AND LOCATIONS OF FACTORIES:                        QUANTITIES 

"GEORGE F. TABERNACLE" FACTORY (ITEM 1)................  133,524
PAIRS 

EAST SIDE OF WASHINGTON STREET (ITEM 2)................  182,256
PAIRS 

(SOUTH OF CORNER SUSQUEHANNA STREET), BINGHAMTON, 

N.Y., (TOTAL ITEMS 1 AND 2)............................  315,780
PAIRS 

A TYPICAL NOTICE OF AWARD STATED: 

FOR 133,524 PAIRS SHOES, SERVICE; SPECIAL TYPE "B" WITH FULL MIDDLE
SOLE AND RUBBER HEEL; 182,256 PAIRS SHOES, SERVICE, SPECIAL TYPE "B,"
WITH CORDED RUBBER SOLE AND UNCORDED RUBBER HEEL. 

TO BE MANUFACTURED AT OR SUPPLIED FROM GEO. F. TABERNACLE, (NAME AND
LOCATION OF PLANTS) 

BINGHAMTON, N.Y. 

FN9  ARTICLE 18(G). 

FN10  CF. PERKINS V. LUKENS STEEL CO., 310 U.S. 113, AND CASES THERE
CITED. 

FN11  THESE RELATE TO:  THE MEANING OF THE CONTRACT AND THE ACT AS
IMPLEMENTED BY ADMINISTRATIVE RULINGS IN EXISTENCE AT THE TIME OF THE
MAKING AND PERFORMANCE OF THE CONTRACT; THE QUESTION OF POSSIBLE
RETROACTIVE EFFECT OF RULINGS AND REGULATIONS NO. 2, SUPRA, NOTE 7; THE
NATURE OF PETITIONER'S BUSINESS ORGANIZATION; AND PRACTICES OF
PROCUREMENT, MANUFACTURE, STORAGE, CONSUMPTION AND DISTRIBUTION
OBTAINING AT PETITIONER'S PLANTS. 

FN12  BOYD V. UNITED STATES, 116 U.S. 616; INTERSTATE COMMERCE
COMMISSION V. BRIMSON, 154 U.S. 447; HARRIMAN V. INTERSTATE COMMERCE
COMMISSION, 211 U.S. 407; ELLIS V. INTERSTATE COMMERCE COMMISSION, 237
U.S. 434; FEDERAL TRADE COMMISSION V. AMERICAN TOBACCO CO., 264 U.S.
298. 

MR. JUSTICE MURPHY, DISSENTING: 

BECAUSE OF THE VARIED AND IMPORTANT RESPONSIBILITIES OF A QUASI
JUDICIAL NATURE THAT HAVE BEEN ENTRUSTED TO ADMINISTRATIVE AGENCIES IN
THE REGULATION OF OUR POLITICAL AND ECONOMIC LIFE, THEIR ACTIVITIES
SHOULD NOT BE SUBJECTED TO UNWARRANTED AND ILL-ADVISED INTRUSIONS BY
THE JUDICIAL BRANCH OF THE GOVERNMENT.  YET, IF THEY ARE FREED OF ALL
RESTRAINT UPON INQUISITORIAL ACTIVITIES AND ARE ALLOWED UNCONTROLLED
DISCRETION IN THE EXERCISE OF THE SOVEREIGN POWER OF GOVERNMENT TO
INVADE PRIVATE AFFAIRS THROUGH THE USE OF THE SUBPOENA, TO THE EXTENT
REQUIRED OR SOUGHT IN SITUATIONS LIKE THE ONE BEFORE US AND OTHER
INQUIRIES OF MUCH BROADER SCOPE, UNDER THE DIRECTION OF WELL-MEANING
BUT OVER-ZEALOUS OFFICIALS THEY MAY AT TIMES BECOME INSTRUMENTS OF
INTOLERABLE OPPRESSION AND INJUSTICE.  THIS IS NOT TO SAY THAT THE
POWER TO ENFORCE THEIR SUBPOENAS SHOULD NEVER BE ENTRUSTED TO
ADMINISTRATIVE AGENCIES, BUT THUS FAR CONGRESS, FOR UNSTATED REASONS,
HAS NOT SEEN FIT TO CONFER SUCH AUTHORITY UPON ANY AGENCY WHICH IT HAS
CREATED.  FN1  SO HERE, WHILE THE SECRETARY OF LABOR IS EMPOWERED TO
ADMINISTER THE WALSH-HEALEY ACT, TO "PROSECUTE ANY INQUIRY NECESSARY TO
HIS FUNCTIONS," AND "TO ISSUE ORDERS REQUIRING THE ATTENDANCE AND THE
TESTIMONY OF WITNESSES AND THE PRODUCTION OF EVIDENCE UNDER OATH," HE
ALONE CANNOT COMPEL OBEDIENCE OF THOSE ORDERS.  "JURISDICTION" SO TO DO
IS CONFERRED UPON THE DISTRICT COURTS OF THE UNITED STATES AND IT IS
OUR IMMEDIATE TASK TO DELINEATE THE PROPER FUNCTION OF THOSE COURTS IN
THE EXERCISE OF THIS JURISDICTION.  FN2  SPECIFICALLY THE QUESTION IS:
WHAT IS THE DUTY OF THE COURTS WHEN THE WITNESS OR PARTY CLAIMS THE
PROCEEDING IS WITHOUT AUTHORITY OF LAW? 

THIS COURT, IN RECOGNITION OF THE DRASTIC NATURE OF THE SUBPOENA
POWER AND THE POSSIBILITIES OF SEVERE MISCHIEF INHERENT IN ITS USE, HAS
INSISTED THAT IT BE KEPT WITHIN WELLDEFINED CHANNELS.  CF. BOYD V.
UNITED STATES, 116 U.S. 616; HALE V. HENKEL, 201 U.S. 43; FEDERAL TRADE
COMM'N V. AMERICAN TOBACCO CO., 264 U.S. 298; CUDAHY PACKING CO. V.
HOLLAND, 315 U.S. 357, 363.  IN CONDITIONING ENFORCEMENT OF THE
SECRETARY'S ADMINISTRATIVE SUBPOENAS UPON APPLICATION THEREFOR TO A
DISTRICT COURT, CONGRESS EVIDENTLY INTENDED TO KEEP THE INSTANT
SUBPOENA POWER WITHIN LIMITS, AND CLEARLY MUST HAVE MEANT FOR THE
COURTS TO PERFORM MORE THAN A ROUTINE MINISTERIAL FUNCTION IN PASSING
UPON SUCH APPLICATIONS.  IF THIS WERE NOT THE CASE, IT WOULD HAVE BEEN
MUCH SIMPLER TO LODGE THE POWER OF ENFORCEMENT DIRECTLY WITH THE
SECRETARY, OR ELSE TO MAKE DISREGARD OF HIS SUBPOENAS A MISDEMEANOR. 
SO WE HAVE SAID THAT "APPROPRIATE DEFENSE MAY BE MADE" TO SUCH AN
APPLICATION FOR ENFORCEMENT.  MYERS V. BETHLEHEM CORP., 303 U.S. 41,
49. 

THE GOVERNMENT CONCEDES THAT THE DISTRICT COURTS ARE MORE THAN MERE
RUBBER STAMPS OF THE AGENCIES IN ENFORCING ADMINISTRATIVE SUBPOENAS AND
LISTS AS EXAMPLES OF APPROPRIATE DEFENSES, CLAIMS THAT A PRIVILEGE OF
THE WITNESS, LIKE THAT AGAINST SELF-INCRIMINATION, WOULD BE VIOLATED;
FN3  OR THAT THE SUBPOENA IS UNDULY VAGUE OR UNREASONABLY OPPRESSIVE;
FN4  OR THAT THE HEARING IS NOT OF THE KIND AUTHORIZED; FN5  OR THAT
THE SUBPOENA WAS NOT ISSUED BY THE PERSON VESTED WITH THE POWER; FN6
OR THAT IT IS PLAIN ON THE PLEADINGS THAT THE EVIDENCE SOUGHT IS NOT
GERMANE TO ANY LAWFUL SUBJECT OF INQUIRY.  BUT THE GOVERNMENT INSISTS
THAT THE ISSUE OF "COVERAGE," I.E., WHETHER THE ACT EXTENDS TO PLANTS
OF PETITIONER'S ESTABLISHMENT WHICH MANUFACTURED MATERIALS USED IN
MAKING COMPLETE SHOES BUT NOT NAMED IN THE CONTRACTS, IS NOT A PROPER
GROUND FOR ATTACK IN THIS CASE.  I THINK IT IS. 

IF PETITIONER IS NOT SUBJECT TO THE ACT AS TO THE PLANTS IN QUESTION,
THE SECRETARY HAS NO RIGHT TO START PROCEEDINGS OR TO REQUIRE THE
PRODUCTION OF RECORDS WITH REGARD TO THOSE PLANTS.  IN OTHER WORDS,
THERE WOULD BE NO LAWFUL SUBJECT OF INQUIRY, AND UNDER PRESENT STATUTES
GIVING THE COURTS JURISDICTION TO ENFORCE ADMINISTRATIVE SUBPOENAS,
PETITIONER IS ENTITLED TO A JUDICIAL DETERMINATION OF THIS ISSUE BEFORE
ITS PRIVACY IS INVADED.  CF. INTERSTATE COMMERCE COMM'N V. BRIMSON, 154
U.S. 447, 479; HARRIMAN V. INTERSTATE COMMERCE COMM'N, 211 U.S. 407;
ELLIS V. INTERSTATE COMMERCE COMM'N, 237 U.S. 434; GENERAL TOBACCO &
GROCERY CO. V. FLEMING, 125 F.2D 596. 

OF COURSE, THE COURTS SHOULD NOT ARROGATE TO THEMSELVES THE FUNCTIONS
OF ADMINISTRATIVE AGENCIES.  IT IS TRITE BUT TRUTHFUL TO SAY THAT
ADMINISTRATIVE AGENCIES RENDER VALUABLE AND VERY NECESSARY SERVICES IN
THE SOLUTION OF THE COMPLEX GOVERNMENTAL AND ECONOMIC PROBLEMS OF OUR
TIME.  IN THE MAKING OF INVESTIGATIONS, THE DETERMINATION OF POLICY,
THE COLLECTION OF EVIDENCE, AND ITS CURRENT EVALUATION, PREPARATORY OR
INCIDENTAL TO ADMINISTRATIVE ACTION, EXPERIENCE AND SPECIAL TRAINING
ARE VALUABLE AIDS.  BUT AFTER ALL, AS POINTED OUT BY GELLHORN, FEDERAL
ADMINISTRATIVE PROCEEDINGS, PP. 27-29, THE ADMINISTRATOR IS ONLY AN
EXPERT EX-OFFICIO.  FN7  JUST AS THE COURTS SHOULD NOT USURP THE
PREROGATIVES OF THE AGENCIES, NEITHER SHOULD THE WORD "ADMINISTRATIVE"
AND ITS COMPANION "EXPERTNESS" OVERAWE THEM INTO ABDICATING
RESPONSIBILITIES IMPOSED UPON THEM BY CONGRESS. 

THE LEGAL PROPRIETY OF INSTITUTING PROCEEDINGS IS A QUESTION WHICH AN
AGENCY IS AUTHORIZED IF NOT OBLIGED TO DETERMINE, PROVISIONALLY AT
LEAST, BEFORE INSTITUTING THE PROCEEDINGS.  BUT WHILE THE DECISION MAY
BE THE AGENCY'S IN THE FIRST PLACE, IT IS NOT A DECISION WHICH IT IS
ORDINARILY MORE COMPETENT TO MAKE THAN THE COURTS AND JUDGES, WHO (AT
LEAST IN THEORY) SHOULD BE MORE QUALIFIED THAN ADMINISTRATIVE OFFICERS,
MANY OF WHOM ARE LAYMEN, TO DETERMINE WHETHER A STATUTE EXTENDS TO A
CERTAIN SET OF FACTS.  IF THE PRELIMINARY DETERMINATIONS BY AN AGENCY
OF THE SCOPE OF ITS POWER AND JURISDICTION ARE SACROSANCT, WHY DID
CONGRESS SUBJECT THEIR FINAL DETERMINATION TO JUDICIAL SCRUTINY, AS IT
HAS DONE IN THE WALSH-HEALEY ACT WITH REGARD, AT LEAST, TO THE
ENFORCEMENT OF THE WAGE AND HOUR REQUIREMENTS ON BEHALF OF THE
EMPLOYEES?  AND IF THE COURTS ARE QUALIFIED TO PASS FINAL JUDGMENT ON
THE "QUASI-JUDICIAL" FINDINGS AND CONCLUSIONS OF THE ADMINISTRATORS,
WHICH THEY ARE ORDINARILY PERMITTED TO DO TO A GREATER OR LESSER
EXTENT,  FN8 THEY ARE NO LESS QUALIFIED TO DETERMINE WHETHER THE
EVIDENCE WHICH MOVED THE ADMINISTRATOR TO ENTER A FORMAL COMPLAINT IS
SUFFICIENT IN LAW TO SHOW PROBABLE CAUSE THAT THE STATUTE UNDER WHICH
THE ADMINISTRATOR IS PROCEEDING COVERS THE CASE.  WITHOUT SUCH A
SHOWING OF PROBABLE CAUSE, THE DISTRICT COURTS OUGHT NOT TO BE REQUIRED
AS A MATTER OF MERE ROUTINE TO LEND THEIR AID TO THE PROCEEDING BY
COMPELLING OBEDIENCE TO THE SUBPOENA. 

IT IS TO BE UNDERSTOOD, OF COURSE, THAT IF THE MATTER IS IN DOUBT AND
IF THERE IS A REASONABLE LEGAL BASIS FOR THE CHARGE, THE COURT SHOULD
NOT SUBSTITUTE ITS JUDGMENT ON THE LAW OR THE FACTS FOR THAT OF THE
AGENCY.  THE COURT'S DUTY IS TO ASSIST THE AGENCY IN THE PERFORMANCE OF
ITS FUNCTIONS AND THE DISCHARGE OF ITS RESPONSIBILITIES, IN THE ABSENCE
OF A CLEAR AND CONVINCING SHOWING THAT IT IS PROCEEDING WITHOUT LEGAL
WARRANT.  BUT IT IS HARDLY ITS DUTY TO ASSIST IN THE FACE OF SUCH A
SHOWING.  SO, WHEN IT BECOMES NECESSARY FOR THE SECRETARY IN THE COURSE
OF A PROCEEDING UNDER THE WALSH-HEALEY ACT TO APPEAL TO THE DISTRICT
COURT FOR THE EXERCISE OF ITS JURISDICTION OVER SUBPOENA ENFORCEMENT,
IT IS WITHIN THE COMPETENCE AND AUTHORITY OF THE COURT TO INQUIRE AND
SATISFY ITSELF WHETHER THERE IS PROBABLE LEGAL JUSTIFICATION FOR THE
PROCEEDING, BEFORE IT EXERCISES ITS JUDICIAL AUTHORITY TO REQUIRE A
WITNESS OR A PARTY TO REVEAL HIS PRIVATE AFFAIRS OR BE HELD IN
CONTEMPT. 

CONSIDERATIONS OF PRACTICAL ADVANTAGE AND ELEMENTARY JUSTICE SUPPORT
THIS CONCLUSION.  SUCH A RULE CARRIES OUT WHAT MUST HAVE BEEN THE
STATUTORY INTENT, AND WOULD PERMIT A TIMELY AND REASONABLE MEASURE OF
JUDICIAL CONTROL OVER ADMINISTRATIVE USE OF THE DRASTIC SUBPOENA POWER,
SUBJECT TO PROMPT REVIEW IF THE CONTROL WERE ABUSED TO THE DETRIMENT OF
THE AGENCY.  IF ADMINISTRATIVE AGENCIES MAY BE TEMPORARILY HANDICAPPED
IN SOME INSTANCES BY FRIVOLOUS OBJECTIONS, THE PUBLIC WILL BE PROTECTED
IN OTHER INSTANCES AGAINST THE NEEDLESS BURDEN AND VEXATION OF
PROCEEDINGS WHICH MAY BE INSTITUTED WITHOUT LEGAL JUSTIFICATION.  THERE
IS AN OBVIOUS DIFFERENCE BETWEEN THE PRESENT CASE, WHEREIN THE DISTRICT
COURT EXERCISES A JURISDICTION EXPRESSLY GIVEN TO IT BY THE STATUTE,
AND THOSE CASES, SUCH AS MYERS V. BETHLEHEM CORP., 303 U.S. 41, AND
NEWPORT NEWS CO. V. SCHAUFFLER, 303 U.S. 54, IN WHICH WITHOUT EXPRESS
STATUTORY AUTHORITY A COURT IS ASKED TO ENJOIN AN ADMINISTRATIVE
PROCEEDING AS BEING CONTRARY TO LAW.  INDEED, THE VERY DIFFERENCE IS
NOTED IN THE MYERS CASE, WHERE IT IS SAID THAT "APPROPRIATE DEFENSE MAY
BE MADE" TO AN APPLICATION FOR THE ENFORCEMENT OF AN ADMINISTRATIVE
SUBPOENA.  303 U.S. AT 49. 

JUST HOW MUCH OF A SHOWING OF STATUTORY COVERAGE SHOULD BE REQUIRED
TO SATISFY THE DISTRICT COURT, AND JUST HOW FAR IT SHOULD EXPLORE THE
QUESTION, ARE DIFFICULT PROBLEMS, TO BE SOLVED BEST BY A CAREFUL
BALANCING OF INTERESTS AND THE EXERCISE OF A SOUND AND INFORMED
DISCRETION.  IF THE PROPOSED EXAMINATION UNDER THE SUBPOENA OR THE
PROCEEDING ITSELF WOULD BE RELATIVELY BRIEF AND OF A LIMITED SCOPE, ANY
DOUBT SHOULD ORDINARILY BE RESOLVED IN FAVOR OF THE AGENCY'S POWER.  IF
IT PROMISES TO BE PROTRACTED AND BURDENSOME TO THE PARTY, A MORE
SEARCHING INQUIRY IS INDICATED.  A FORMAL FINDING OF COVERAGE BY THE
AGENCY, WHICH THE SECRETARY DID NOT MAKE HERE, SHOULD BE ACCORDED SOME
WEIGHT IN THE COURT'S DELIBERATION, UNLESS WHOLLY WANTING IN EITHER
LEGAL OR FACTUAL SUPPORT, BUT IT SHOULD NOT BE CONCLUSIVE.  IN SHORT,
THE RESPONSIBILITY RESTING UPON THE COURT IN THIS SITUATION IS NOT
UNLIKE THAT OF A COMMITTING MAGISTRATE ON PRELIMINARY EXAMINATION TO
DETERMINE WHETHER AN ACCUSED SHOULD BE HELD FOR TRIAL.    WITH THESE
CONSIDERATIONS IN MIND, LET US TURN TO THE FACTS OF THIS CASE. 
PETITIONER HAS WILLINGLY COMPLIED WITH ALL DEMANDS OF THE SECRETARY
RELATING TO THE PLANTS OF ITS ESTABLISHMENT, NAMED IN THE CONTRACTS, IN
WHICH THE SHOES WERE MANUFACTURED.  IT RESISTS THE APPLICATION FOR
ENFORCEMENT OF THE SUBPOENAS DIRECTING THE PRODUCTION OF RECORDS OF
OTHER PLANTS, NOT NAMED IN THE CONTRACTS, IN WHICH SOME COMPONENT PARTS
FOR THE SHOES WERE MANUFACTURED, ON THE GROUND THAT THE WALSH-HEALEY
ACT DOES NOT EXTEND TO THOSE PLANTS.  IT IS TRUE THAT PETITIONER
VOLUNTARILY ENTERED INTO THE CONTRACTS WITH THE GOVERNMENT, BUT THOSE
REFERRED ONLY TO THE SPECIFIC PLANTS WHERE THE FINISHED PRODUCT WAS
MADE.  AND, IT WAS NOT UNTIL 1939, AFTER ALL THE CONTRACTS WERE
COMPLETED, THAT THE SECRETARY ISSUED RULINGS SPECIFICALLY DEALING WITH
"INTEGRATED ESTABLISHMENTS."  FN9  THE MERE FACT THAT PETITIONER
VOLUNTARILY CONTRACTED WITH REFERENCE TO SOME PLANTS DOES NOT
NECESSARILY MEAN THAT THE SECRETARY IS FREE TO INVESTIGATE PETITIONER'S
ENTIRE BUSINESS WITHOUT LET OR HINDRANCE.  THAT DEPENDS UPON WHETHER OR
NOT THE ACT EXTENDS TO THOSE OTHER PLANTS.  PETITIONER WAS ENTITLED TO
HAVE THIS QUESTION DETERMINED BY THE DISTRICT COURT BEFORE THE SUBPOENA
WAS ENFORCED OVER ITS OBJECTION. 

IN VIEW OF THE OPINION OF THE COURT, THERE IS NO REASON FOR
DISCUSSING WHETHER THE DISTRICT COURT CORRECTLY CONSTRUED THE SCOPE OF
THE WALSH-HEALEY ACT, OR WHETHER IT CONDUCTED ITS EXAMINATION IN
ACCORDANCE WITH THE PRINCIPLES I HAVE ATTEMPTED TO OUTLINE IN THE
COURSE OF THIS OPINION.  IT IS ENOUGH TO SAY THAT I AM OF OPINION THAT
UNDER THE FACTS OF THIS CASE THE DISTRICT COURT SHOULD NOT BE COMPELLED
MECHANICALLY TO ENFORCE THE SECRETARY'S SUBPOENA, IN THE EXERCISE OF
ITS STATUTORY JURISDICTION.  IT SHOULD FIRST SATISFY ITSELF THAT
PROBABLE CAUSE EXISTS FOR THE SECRETARY'S CONTENTION THAT THE ACT
COVERS THE PLANTS IN QUESTION. 

FN1  THE DISREGARD OF SUBPOENAS ISSUED BY SOME AGENCIES IS PUNISHABLE
BY FINE AND IMPRISONMENT IN A CRIMINAL PROCEEDING, BUT APPARENTLY NO
FEDERAL AGENCY HAS EVER BEEN GIVEN THE POWER TO PUNISH DISOBEDIENCE AS
A CONTEMPT OF ITS AUTHORITY.  (SEE FINAL REPORT OF THE ATTORNEY
GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE, APPENDIX K.)  THE
COMMON METHOD OF ENFORCING SUBPOENAS IS TO PUNISH DISREGARD OF THE
SUBPOENA AS CONTEMPT OF THE ISSUING BODY.  IT HAS BEEN HELD IN SOME
STATES THAT THE POWER TO PUNISH FOR CONTEMPT CANNOT BE CONFERRED UPON A
BODY OF A NON-JUDICIAL CHARACTER.  SEE LANGENBERG V. DECKER, 131 IND.
471, 31 N.E. 190; IN RE WHITCOMB, 120 MASS. 118, 21 AM. REP. 502. 
CONTRA, IN RE HAYES, 200 N.C. 133, 156 S.E. 791.  COMPARE STATEMENTS IN
INTERSTATE COMMERCE COMM'N V. BRINSON, 154 U.S. 447, AT 485 AND 489. 

FN2  SECTION 5 OF THE ACT PROVIDES IN PART:  "IN CASE OF CONTUMACY,
FAILURE, OR REFUSAL OF ANY PERSON TO OBEY SUCH AN ORDER, ANY DISTRICT
COURT OF THE UNITED STATES OR OF ANY TERRITORY OR POSSESSION, OR THE
SUPREME COURT OF THE DISTRICT OF COLUMBIA, WITHIN THE JURISDICTION OF
WHICH THE INQUIRY IS CARRIED ON, OR WITHIN THE JURISDICTION OF WHICH
SAID PERSON WHO IS GUILTY OF CONTUMACY, FAILURE, OR REFUSAL IS FOUND,
OR RESIDES OR TRANSACTS BUSINESS, UPON THE APPLICATION BY THE SECRETARY
OF LABOR OR REPRESENTATIVE DESIGNATED BY HIM, SHALL HAVE JURISDICTION
TO ISSUE TO SUCH PERSON AN ORDER REQUIRING SUCH PERSON TO APPEAR BEFORE
HIM OR REPRESENTATIVE DESIGNATED BY HIM, TO PRODUCE EVIDENCE IF, AS,
AND WHEN SO ORDERED, AND TO GIVE TESTIMONY RELATING TO THE MATTER UNDER
INVESTIGATION OR IN QUESTION; AND ANY FAILURE TO OBEY SUCH ORDER OF THE
COURT MAY BE PUNISHED BY SAID COURT AS A CONTEMPT THEREOF; ...  " 

CRIMINAL SANCTIONS ARE NOT PROVIDED. 

FN3  CF. BOYD V. UNITED STATES, 116 U.S. 616. 

FN4  CF. HALE V. HENKEL, 201 U.S. 43; FEDERAL TRADE COMM'N V.
AMERICAN TOBACCO CO., 264 U.S. 298. 

FN5  CF. HARRIMAN V. INTERSTATE COMMERCE COMM'N, 211 U.S. 407; ELLIS
V. INTERSTATE COMMERCE COMM'N, 237 U.S. 434. 

FN6  CF. CUDAHY PACKING CO. V. HOLLAND, 315 U.S. 357. 

FN7  "WHEN REFERENCE IS MADE TO THE 'EXPERT ADMINISTRATIVE AGENCY,'
IT IS SURELY NOT INTENDED TO MEAN THAT THE NECESSARY EXPERTNESS IS
LODGED IN THE HEAD OR HEADS OF THE AGENCY OR THAT THEY, IN THEIR OWN
PERSON, POSSESS EVERY EXPERTISE NEEDED FOR THE INFORMED DISCHARGE OF
THE MANIFOLD DUTIES IMPOSED UPON THE MODERN ADMINISTRATIVE
ORGANIZATION.  ...  MAKE THE AGENCY EXPERT IN ITS ASSIGNED TASKS.  THIS
IS A CENTRAL REALITY.  ...  THE ADMINISTRATIVE AGENCY AS NOW ORGANIZED
IS A VEHICLE FOR BRINGING THE JUDGMENTS OF NUMEROUS SPECIALLY QUALIFIED
OFFICIALS TO BEAR UPON A SINGLE PROBLEM." 

FN8  THE WALSH-HEALEY ACT PROVIDES IN SEC. 5 THAT THE SECRETARY'S
FINDINGS OF FACT SHALL BE CONCLUSIVE IN ANY COURT OF THE UNITED STATES
"IF SUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE." 

FN9  RULINGS AND INTERPRETATIONS UNDER THE WALSH-HEALEY PUBLIC
CONTRACTS ACT, NO. 2. 

MR. JUSTICE ROBERTS JOINS IN THIS DISSENT. 
..END :













WRAGG V. FEDERAL LAND BANK, 317 U.S. 325 


NO. 172.  ARGUED DECEMBER 10, 1942.  - DECIDED JANUARY 4, 1943.  - 125
F.2D 1003, REVERSED. 


1.  A FARMER-DEBTOR, WHOSE PETITION UNDER SEC. 75 OF THE BANKRUPTCY
ACT HAS BEEN DISMISSED AND WHOSE APPLICATION TO REOPEN THE PROCEEDING
HAS BEEN DENIED, MAY INITIATE A NEW PROCEEDING UNDER SEC. 75 WHERE HE
RETAINS A PROPERTY INTEREST WHICH COULD BE ADMINISTERED IN SUCH A
PROCEEDING.  P. 327. 

2.  THE STATUTORY RIGHT OF A FARMER-DEBTOR, IN ALABAMA, TO REDEEM
AFTER FORECLOSURE OF A MORTGAGE, WHETHER IT BE DENOMINATED A PROPERTY
RIGHT OR A PRIVILEGE, IS AN INTEREST WITHIN THE JURISDICTION OF THE
BANKRUPTCY COURT AND CAPABLE OF ADMINISTRATION UNDER SEC. 75 OF THE
BANKRUPTCY ACT.  PP. 328-329. 

3.  SECTION 75 OF THE BANKRUPTCY ACT PRESCRIBES ITS OWN CRITERIA FOR
DETERMINING WHAT PROPERTY INTERESTS MAY BE BROUGHT WITHIN THE
JURISDICTION OF THE COURT.  IN THE INTERPRETATION AND APPLICATION OF
THE BANKRUPTCY ACT AS IN THE CASE OF OTHER FEDERAL STATUTES, FEDERAL
NOT LOCAL LAW APPLIES.  P. 328. 

WRAGG V. FEDERAL LAND BANK OF NEW ORLEANS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 608, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE BANKRUPTCY COURT (34 F.SUPP.  374) WHICH DENIED AN APPLICATION TO
REOPEN A PROCEEDING UNDER SEC. 75 OF THE BANKRUPTCY ACT OR FOR
PERMISSION TO BEGIN A NEW PROCEEDING UNDER THAT SECTION. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

AFTER HER PETITION FOR A COMPOSITION OR EXTENSION OF HER DEBTS IN A
FARMER-DEBTOR PROCEEDING UNDER SEC. 75 OF THE BANKRUPTCY ACT, 11 U.S.C.
SEC. 203, HAD BEEN DISMISSED, PETITIONER APPLIED TO REOPEN THE
PROCEEDING OR, IN THE ALTERNATIVE, TO BE PERMITTED TO INSTITUTE A NEW
PROCEEDING UNDER SEC. 75.  THE QUESTIONS FOR OUR DECISION ARE WHETHER
THE COURTS BELOW ERRED IN DENYING HER APPLICATION AND WHETHER, AT THE
TIME OF HER APPLICATION, HER RIGHT AS MORTGAGOR TO REDEEM ALABAMA REAL
ESTATE AFTER ITS SALE ON FORECLOSURE OF THE MORTGAGE WAS SUCH THAT IT
CAN BE ADMINISTERED BY THE COURT IN A SEC. 75 PROCEEDING. 

IN 1937, AFTER RESPONDENT MORTGAGEE HAD OBTAINED A DECREE OF
FORECLOSURE, BUT BEFORE FORECLOSURE SALE, PETITIONER FILED A PETITION
UNDER SEC. 75 SEEKING A COMPOSITION OR EXTENSION OF HER DEBTS.  THE
BANKRUPTCY COURT REFERRED THE PROCEEDING TO A CONCILIATION
COMMISSIONER; PETITIONER FILED PROPOSED TERMS OF COMPOSITION OR
EXTENSION TO WHICH RESPONDENT FILED OBJECTIONS; THE CONCILIATION
COMMISSIONER THEN RECOMMENDED THAT THE OFFER BE NOT APPROVED, ON THE
GROUND THAT IT DID NOT CONTAIN AN EQUITABLE AND FEASIBLE METHOD OF
LIQUIDATING RESPONDENT'S CLAIM AND OF SECURING PETITIONER'S FINANCIAL
REHABILITATION. 

THE COURT CONFIRMED THE REPORT OF THE CONCILIATION COMMISSIONER,
HOLDING THAT PETITIONER WAS NOT ENTITLED TO AMEND HER PETITION SO AS TO
PROCEED UNDER SEC. 75(S), AND DIRECTED THAT THE PROCEEDING BE DISMISSED
AS OF JANUARY 19, 1938.  PETITIONER'S MOTION FOR LEAVE TO APPEAL TO THE
CIRCUIT COURT OF APPEALS IN FORMA PAUPERIS AND HER PETITION FOR
CERTIORARI TO THIS COURT WERE DENIED.  95 F.2D 252; 305 U.S. 596. 
AFTER THE FARMER-DEBTOR PROCEEDING WAS DISMISSED RESPONDENT PURCHASED
THE MORTGAGED PROPERTY AT A FORECLOSURE SALE, WHICH WAS CONFIRMED IN
APRIL, 1938.  NEARLY A YEAR LATER, RESPONDENT CONTRACTED TO SELL THE
PROPERTY TO A THIRD PARTY, THE CONTRACT STIPULATING THAT IT WAS
"SUBJECT TO THE STATUTORY RIGHT OF REDEMPTION FOLLOWING FORECLOSURE IF
ANY EXISTS." 

ALABAMA LAW ALLOWS TO THE MORTGAGOR A TWO-YEAR REDEMPTION PERIOD
AFTER FORECLOSURE SALE.  TITLE 7, SEC. 727, CODE OF ALABAMA, 1940.  ON
MARCH 11, 1940, ONE DAY BEFORE THE EXPIRATION OF THIS PERIOD,  FN1
PETITIONER FILED HER APPLICATION IN THE BANKRUPTCY COURT.  IT REFERRED
TO HER PRIOR SEC. 75 PROCEEDING, ALLEGING THAT HER PROPERTY HAD NOT
BEEN FULLY ADMINISTERED IN THAT PROCEEDING AND THAT SHE WAS ENTITLED TO
FURTHER RELIEF, ESPECIALLY IN THE LIGHT OF THE CHANGED CONDITIONS AND
INTERPRETATION OF THE ACT (OBVIOUSLY A REFERENCE TO THE DECISION IN
JOHN HANCOCK INS. CO. V. BARTELS, 308 U.S. 180, DECIDED DECEMBER 4,
1939).  SHE ACCORDINGLY PRAYED THAT THE CASE BE REOPENED AND
REINSTATED.  IN THE ALTERNATIVE SHE ASKED THAT, IF SHE WERE ENTITLED
ONLY TO FILE A NEW PETITION, THEN HER FORMER SCHEDULES SHOULD BE DEEMED
A PART OF HER PETITION, AND SHE OFFERED TO PAY SUCH FILING FEES AS THE
STATUTE REQUIRES. 

THE DISTRICT COURT THOUGHT THAT EVEN THOUGH THE DISMISSAL OF THE
ORIGINAL PROCEEDING WAS ERRONEOUS UNDER THE RULE SUBSEQUENTLY ANNOUNCED
IN THE BARTELS CASE, THERE WERE NO CIRCUMSTANCES SUFFICIENT TO PERSUADE
THE COURT, IN THE EXERCISE OF ITS DISCRETION, THAT THE PROCEEDING
SHOULD BE REOPENED UPON AN APPLICATION FILED MORE THAN TWO YEARS AFTER
IT HAD BEEN DISMISSED.  THE COURT ACCORDINGLY DENIED THE APPLICATION. 
34 F.SUPP.  374.  THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT
AFFIRMED.  125 F.2D 1003.  WE GRANTED CERTIORARI, POST, P. 608, THE
QUESTIONS RAISED BEING OF IMPORTANCE IN THE ADMINISTRATION OF THE
BANKRUPTCY ACT. 

WE DO NOT DIFFER WITH THE CONCLUSION OF BOTH COURTS BELOW THAT IT WAS
WITHIN THE SOUND DISCRETION OF THE BANKRUPTCY COURT TO DECLINE TO
REOPEN THE ORIGINAL ORDER OF DISMISSAL.  A MOTION TO REOPEN A
PROCEEDING MAY NOT PROPERLY BE SUBSTITUTED FOR AN APPEAL FROM ITS
DECISION.  SEE WAYNE GAS CO. V. OWENS CO., 300 U.S. 131, 135; PFISTER
V. NORTHERN ILLINOIS FINANCE CORP., ANTE, PP. 153-154.  BUT THE
DISMISSAL OF THE ORIGINAL PROCEEDING AND DENIAL OF THE APPLICATION TO
REOPEN IT WERE NOT BARS TO A NEW PROCEEDING UNDER SEC. 75 TO SECURE
WHATEVER RELIEF THE ACT WOULD AFFORD WITH RESPECT TO PETITIONER'S
REMAINING INTEREST IN THE MORTGAGED PROPERTY.  WE FIND NO INTIMATION IN
THE LANGUAGE AND PURPOSES OF THE ACT THAT AN UNSUCCESSFUL EARLIER
PROCEEDING WOULD PRECLUDE A NEW PETITION SO LONG AS THE FARMER RETAINS
AN INTEREST WHICH COULD BE ADMINISTERED IN A PROCEEDING UNDER SEC. 75. 

RESPONDENT ARGUES THAT UNDER ALABAMA STATUTES AND DECISIONS THE
STATUTORY RIGHT OF REDEMPTION AFTER FORECLOSURE IS DEFINED AS A
"PERSONAL PRIVILEGE" RATHER THAN AS "PROPERTY OR PROPERTY RIGHTS"
(TITLE 7, SEC. 743), AND HENCE IS NOT WITHIN THE JURISDICTION OF THE
BANKRUPTCY COURT IN A FARMER-DEBTOR PROCEEDING.  BUT SEC. 75 PRESCRIBES
ITS OWN CRITERIA FOR DETERMINING WHAT PROPERTY INTERESTS MAY BE BROUGHT
WITHIN THE JURISDICTION OF THE COURT.  IN THE INTERPRETATION AND
APPLICATION OF THE BANKRUPTCY ACT AS IN THE CASE OF OTHER FEDERAL
STATUTES, FEDERAL NOT LOCAL LAW APPLIES.  PRUDENCE CORP. V. GEIST, 316
U.S. 89, 95 AND CASES CITED.  IT IS FOR THE BANKRUPTCY COURT TO
DETERMINE, BY REFERENCE TO THE PROVISIONS OF THE BANKRUPTCY STATUTE,
WHAT RIGHTS CREATED BY STATE LAW - REGARDLESS OF THE CHARACTERIZATION
WHICH MAY BE APPLIED TO THEM BY STATE STATUTES AND DECISIONS - ARE
WITHIN THE JURISDICTION OF THE BANKRUPTCY COURT.  UNITED STATES V.
PELZER, 312 U.S. 399, 402-03. 

UNDER SEC. 168 OF TITLE 47 OF THE ALABAMA CODE OF 1940, THE PURCHASER
AT FORECLOSURE SALE IS ENTITLED TO A DEED IMMEDIATELY UPON MAKING THE
PURCHASE AND THE DEED CONVEYS TO HIM FULL LEGAL TITLE SUBJECT ONLY TO
THE RIGHT OF REDEMPTION.  BY SECS. 727 AND 743 OF TITLE 7, THE
MORTGAGOR RETAINS A RIGHT OF REDEMPTION, WHICH IS "NOT SUBJECT TO
ALIENATION," SAVE AS IT MAY BE TRANSFERRED OR ASSIGNED TO AN ASSIGNEE
WHO MAY REDEEM.  ESTES V. JOHNSON, 234 ALA. 191, 174 SO. 632; CRAWFORD
V. HORTON, 234 ALA. 439, 444, 175 SO. 310.  SECTION 75(N) OF THE
BANKRUPTCY ACT CONFERS JURISDICTION OVER THE DEBTOR'S "RIGHT OR THE
EQUITY OF REDEMPTION WHERE THE PERIOD OF REDEMPTION HAS NOT OR HAD NOT
EXPIRED."  WRIGHT V. LOGAN, 315 U.S. 139, 142; AND SEE STATE BANK OF
HARDINSBURG V. BROWN, ANTE, PP. 138-140.  LOOKING AT THE SCOPE AND
PURPOSE OF SEC. 75, WE THINK PETITIONER'S INTEREST IN THE MORTGAGED
PROPERTY, WHETHER IT BE DENOMINATED A PROPERTY RIGHT OR A PRIVILEGE OF
REDEMPTION, IS AN INTEREST INTENDED TO BE SUBJECT TO THE COURT'S
JURISDICTION AND IS CAPABLE OF ADMINISTRATION IN A FARMER-DEBTOR
PROCEEDING.  SEE MANGUS V. MILLER, ANTE, P. 178. 

IT FOLLOWS THAT PETITIONER'S RIGHT OF REDEMPTION WAS WITHIN THE
JURISDICTION OF THE COURT; THAT SHE WAS ENTITLED TO INITIATE A NEW
PROCEEDING FOR THE ADMINISTRATION OF THE PROPERTY IN FARMER-DEBTOR
PROCEEDINGS, AND TO ASK THAT HER PETITION AND SCHEDULES BE ALLOWED TO
STAND AS THE PETITION AND SCHEDULES IN SUCH A PROCEEDING.  REVERSED. 

FN1  PETITIONER CONTENDS THAT ON MARCH 11, 1940, NEARLY SIX WEEKS OF
THE PERIOD OF REDEMPTION REMAINED.  WE FIND IT UNNECESSARY TO DETERMINE
THE CORRECTNESS OF THIS CONTENTION. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







DETROIT BANK V. UNITED STATES, 317 U.S. 329 


NO. 156.  ARGUED DECEMBER 9, 10, 1942.  - DECIDED JANUARY 4, 1943.  -
127 F.2D 64, AFFIRMED. 


1.  THE TAX LIEN IMPOSED BY SEC. 315(A) OF THE REVENUE ACT OF 1936 FOR
FEDERAL ESTATE TAXES ATTACHES AT THE DATE OF THE DECEDENT'S DEATH
WITHOUT ASSESSMENT OR DEMAND.  P. 332. 

2.  THE LIEN EXTENDS TO AN INTEREST OF THE DECEDENT AS A TENANT BY
THE ENTIRETY.  P. 332. 

3.  THE LIEN NEED NOT BE RECORDED UNDER THE PROVISIONS OF R.S. SEC.
3186, AS AMENDED, IN ORDER TO GIVE IT SUPERIORITY TO THE LIEN OF A
MORTGAGEE WHO ACQUIRED HIS MORTGAGE FOR VALUE IN GOOD FAITH WITHOUT
KNOWLEDGE OF THE TAX LIEN.  P. 333. 

THE DIFFERENCES BETWEEN R.S. SEC. 3186 AND SEC. 315(A), AND THEIR
LEGISLATIVE HISTORY AS SEPARATE ENACTMENTS, INDICATE THAT EACH WAS
INTENDED TO OPERATE INDEPENDENTLY OF THE OTHER.  P. 334. 

4.  IN AUTHORIZING AN UNRECORDED ESTATE TAX LIEN SUPERIOR TO THE LIEN
OF A SUBSEQUENT MORTGAGE, WHILE WITHHOLDING SUCH TAX LIEN AGAINST
INNOCENT PURCHASERS OF PROPERTY WHICH A DECEDENT HAD TRANSFERRED INTER
VIVOS IN CONTEMPLATION OF DEATH, THE STATUTE DOES NOT VIOLATE THE FIFTH
AMENDMENT.  P. 337. 

UNLIKE THE FOURTEENTH AMENDMENT, THE FIFTH CONTAINS NO EQUAL
PROTECTION CLAUSE AND IT PROVIDES NO GUARANTY AGAINST DISCRIMINATORY
LEGISLATION BY CONGRESS.  P. 337. 

DETROIT BANK (FORMERLY DETROIT SAVINGS BANK) V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 607, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT, 41 F.SUPP.  41, ENFORCING AT THE SUIT OF THE
GOVERNMENT AN UNRECORDED TAX LIEN ON REAL PROPERTY ASSESSED AS PART OF
A DECEDENT'S ESTATE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS FOR DECISION ARE: 

(1)  WHETHER THE LIEN FOR FEDERAL ESTATE TAXES AUTHORIZED BY SEC.
315(A) OF THE REVENUE ACT OF 1926, 44 STAT. 9, 80, ATTACHES TO THE
INTEREST OF THE DECEDENT IN AN ESTATE BY THE ENTIRETY. 

(2)  WHETHER THE LIEN IS REQUIRED TO BE RECORDED UNDER THE PROVISIONS
OF R.S. SEC. 3186, AS AMENDED, IN ORDER TO GIVE IT SUPERIORITY TO THE
LIEN OF A MORTGAGEE WHO ACQUIRED HIS MORTGAGE FOR VALUE IN GOOD FAITH
WITHOUT KNOWLEDGE OF THE TAX LIEN. 

(3)  WHETHER SEC. 315(A), SO APPLIED AS TO GIVE THE LIEN SUPERIORITY
OVER SUCH SUBSEQUENT MORTGAGES, OFFENDS THE FIFTH AMENDMENT. 

THE GOVERNMENT BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT
PURSUANT TO R.S. SEC. 3207, TO FORECLOSE AN ASSERTED LIEN FOR ESTATE
TAXES ASSESSED UNDER SEC. 302(E) UPON CERTAIN PARCELS OF REAL ESTATE. 
THE REAL ESTATE HAD BEEN OWNED AT THE TIME OF HIS DEATH BY DECEDENT AND
HIS WIFE AS TENANTS BY THE ENTIRETY.  FOLLOWING HIS DEATH THE REAL
ESTATE WAS NOT INCLUDED AS A PART OF HIS ESTATE IN COMPUTING THE
FEDERAL ESTATE TAX.  PRIOR TO ASSESSMENT OR PAYMENT OF THE TAX, THE
PARCELS OF REAL ESTATE IN QUESTION WERE MORTGAGED, SOME BY DECEDENT'S
WIDOW AND OTHERS BY HIS CHILDREN, TO PETITIONER WHO ACTED WITHOUT
KNOWLEDGE OF THE GOVERNMENT'S ASSERTED LIEN OR CLAIM FOR TAXES. 
DEFAULT IN PAYMENT OF THE MORTGAGE INDEBTEDNESS HAVING OCCURRED,
PETITIONER BOUGHT IN THE MORTGAGED PROPERTY ON FORECLOSURE SALE.  THE
TRIAL COURT FOUND THAT PETITIONER ACQUIRED THE MORTGAGES IN GOOD FAITH
AND FOR VALUE. 

THE COMMISSIONER OF INTERNAL REVENUE ASSESSED AN ESTATE TAX
DEFICIENCY AGAINST DECEDENT'S ESTATE BY REASON OF THE FAILURE TO
INCLUDE THE VALUE OF THE ESTATE BY THE ENTIRETY IN THE COMPUTATION OF
THE TAX, WHICH THE BOARD OF TAX APPEALS SUSTAINED.  THE GOVERNMENT THEN
BROUGHT THE PRESENT PROCEEDING TO ENFORCE THE LIEN.  THE DISTRICT COURT
HELD THAT THE TAX LIEN, ALTHOUGH UNRECORDED, WAS SUPERIOR TO THE
MORTGAGE LIEN AND TO LOCAL, STATE AND COUNTY LIENS FOR TAXES, WHICH HAD
ACCRUED AFTER THE DEATH OF DECEDENT.  THE CIRCUIT COURT OF APPEALS
AFFIRMED, 127 F.2D 64.  WE WERE MOVED TO GRANT CERTIORARI, POST, P.
607, BY THE IMPORTANCE OF THE QUESTIONS PRESENTED TO THE ADMINISTRATION
OF THE REVENUE LAWS. 


"UNLESS THE TAX IS SOONER PAID IN FULL, IT SHALL BE A LIEN FOR TEN
YEARS UPON THE GROSS ESTATE OF THE DECEDENT, EXCEPT THAT SUCH PART OF
THE GROSS ESTATE AS IS USED FOR THE PAYMENT OF CHARGES AGAINST THE
ESTATE AND EXPENSES OF ITS ADMINISTRATION, ALLOWED BY ANY COURT HAVING
JURISDICTION THEREOF, SHALL BE DIVESTED OF SUCH LIEN.  IF THE
COMMISSIONER IS SATISFIED THAT THE TAX LIABILITY OF AN ESTATE HAS BEEN
FULLY DISCHARGED OR PROVIDED FOR, HE MAY, UNDER REGULATIONS PRESCRIBED
BY HIM WITH THE APPROVAL OF THE SECRETARY, ISSUE HIS CERTIFICATE,
RELEASING ANY OR ALL PROPERTY OF SUCH ESTATE FROM THE LIEN HEREIN
IMPOSED." 

THE LIEN ATTACHES AT THE DATE OF THE DECEDENT'S DEATH, SINCE THE
GROSS ESTATE IS DETERMINED AS OF THAT DATE AND THE ESTATE TAX ITSELF
BECOMES AN OBLIGATION OF THE ESTATE AT THAT TIME WITHOUT ASSESSMENT. 
SEE HERTZ V. WOODMAN, 218 U.S. 205, 220; ITHACA TRUST CO. V. UNITED
STATES, 279 U.S. 151, 155; UNITED STATES V. AYER, 12 F.2D 194;
ROSENBERG V. MCLAUGHLIN, 66 F.2D 271.  THAT THE LIEN ATTACHES AT THE
DECEDENT'S DEATH WITHOUT NECESSITY FOR ASSESSMENT OR DEMAND IS IMPLICIT
IN THE PROVISO THAT SUCH PART OF THE ESTATE AS IS USED FOR PAYMENT OF
CHARGES AGAINST THE ESTATE AND EXPENSES OF ADMINISTRATION SHALL BE
"DIVESTED OF THE LIEN." 

PETITIONER URGES THAT SINCE THE LIEN HERE ASSERTED IS "UPON THE GROSS
ESTATE OF DECEDENT" IT DOES NOT ATTACH TO THE LAND HELD BY THE ENTIRETY
WHICH PASSED TO THE DECEDENT'S WIDOW, NOT AS A PART OF HIS ESTATE BUT
BY HER RIGHT TO SURVIVORSHIP.  BUT THIS ARGUMENT DISREGARDS THE FACT
THAT THE LIEN IS FOR THE PARTICULAR TAX IMPOSED BY SEC. 302 OF THE
REVENUE ACT OF 1926 UPON "THE VALUE OF THE GROSS ESTATE OF DECEDENT" AT
THE TIME OF HIS DEATH, INCLUDING "THE VALUE AT THE TIME OF HIS DEATH OF
ALL PROPERTY, REAL OR PERSONAL,  ...  (E) TO THE EXTENT OF THE INTEREST
THEREIN HELD ...  AS TENANTS BY THE ENTIRETY BY THE DECEDENT AND SPOUSE
..." 

SINCE THE LIEN AUTHORIZED BY SEC. 315(A) IS FOR THE TAX WHICH IN ITS
COMPUTATION INCLUDES AS A PART OF THE TAXABLE ESTATE THE VALUE OF THE
ESTATE BY THE ENTIRETY, SEE TYLER V. UNITED STATES, 281 U.S. 497, WE
THINK IT TOO PLAIN FOR ARGUMENT THAT THE LIEN EXTENDS TO THE ESTATE AS
THUS DEFINED AND MADE THE BASE ON WHICH THE TAX IS COMPUTED.  THE GROSS
ESTATE OF DECEDENT WITHIN THE MEANING OF SEC. 315(A) IS THE ESTATE OR
PROPERTY ON WHICH THE TAX CHARGEABLE TO DECEDENT'S ESTATE IS COMPUTED. 
CONGRESS, IN SEC. 314(B), SIMILARLY DENOMINATED THE PROCEEDS OF
INSURANCE ON THE LIFE OF DECEDENT PAYABLE TO BENEFICIARIES AS "A PART
OF THE GROSS ESTATE" IN PROVIDING FOR RECOVERY FROM THE BENEFICIARIES
OF THEIR PRO RATA SHARES OF THE ESTATE TAX.  WE CANNOT IMPUTE TO
CONGRESS AN INTENTION NOT DISCLOSED BY THE STATUTE OR ITS LEGISLATIVE
HISTORY TO EXCLUDE FROM THE TAX LIEN PROPERTY WHICH IT DIRECTS TO BE
INCLUDED IN THE DECEDENT'S GROSS ESTATE FOR THE PURPOSE OF COMPUTING
THE TAX. 

NOR CAN WE CONCLUDE, AS PETITIONER ARGUES, THAT THE LIEN FOR ESTATE
TAX AUTHORIZED BY SEC. 315(A) IS SUBJECT TO THE EARLIER PROVISION FOR
RECORDING TAX LIENS IN R.S. SEC. 3186.  THIS SECTION, SO FAR AS NOW
RELEVANT, PROVIDES, 

"THAT IF ANY PERSON LIABLE TO PAY ANY TAX NEGLECTS OR REFUSES TO PAY
THE SAME AFTER DEMAND, THE AMOUNT SHALL BE A LIEN IN FAVOR OF THE
UNITED STATES FROM THE TIME WHEN THE ASSESSMENT LIST WAS RECEIVED BY
THE COLLECTOR, EXCEPT WHEN OTHERWISE PROVIDED, UNTIL PAID  ...  UPON
ALL PROPERTY AND RIGHTS TO PROPERTY BELONGING TO SUCH PERSON:
PROVIDED, HOWEVER, THAT SUCH LIEN SHALL NOT BE VALID AS AGAINST ANY
MORTGAGEE, PURCHASER, OR JUDGMENT CREDITOR UNTIL NOTICE OF SUCH LIEN
SHALL BE FILED BY THE COLLECTOR IN THE OFFICE OF THE CLERK OF THE
DISTRICT COURT OF THE DISTRICT WITHIN WHICH THE PROPERTY SUBJECT TO
SUCH LIEN IS SITUATED  ..." 

THE SECTION CONTAINS A FURTHER PROVISO THAT WHENEVER ANY STATE, BY
APPROPRIATE LEGISLATION, MAKES PROVISION FOR THE FILING OF SUCH NOTICE
IN THE OFFICE OF A REGISTRAR OR RECORDER OF DEEDS, "THEN SUCH LIENS
SHALL NOT BE VALID IN THAT STATE AGAINST ANY MORTGAGEE, PURCHASER OR
JUDGMENT CREDITOR UNTIL SUCH NOTICE SHALL BE FILED" IN THE APPROPRIATE
OFFICE.  MICHIGAN HAS MADE PROVISION FOR FILING NOTICES OF SUCH TAX
LIENS IN THE OFFICES OF THE REGISTERS OF DEEDS IN THE COUNTIES OF THE
STATE.  SEC. 3746, COMPILED LAWS OF MICHIGAN, 1929. 

THE PART OF R.S. SEC. 3186 IMPOSING THE LIEN WAS ENACTED IN 1866, 14
STAT. 107.  THE PROVISION FOR FILING NOTICE OF GOVERNMENT TAX LIENS WAS
ADDED BY AMENDMENT OF MARCH 4, 1913, 37 STAT. 1016.  BEFORE THE
AMENDMENT THIS COURT HAD HELD IN UNITED STATES V. SNYDER, 149 U.S. 210;
CF. UNITED STATES V. CURRY, 201 F.371, 374, THAT IN THE ABSENCE OF A
FEDERAL STATUTE REQUIRING GOVERNMENT TAX LIENS TO BE RECORDED THEY ARE
SUPERIOR TO SUBSEQUENT MORTGAGES. 

PETITIONER CONTENDS THAT CONGRESS, IN ENACTING SEC. 209 OF THE
REVENUE ACT OF 1916, WHICH, WITH AMENDMENTS, BECAME SEC. 315(A) OF THE
REVENUE ACT OF 1926, DID NOT IMPOSE AN INDEPENDENT LIEN BUT MERELY MADE
EXPRESSLY APPLICABLE TO THE FEDERAL ESTATE TAX THE LIEN CREATED BY R.S.
SEC. 3186, MODIFYING THAT LIEN IN SOME RESPECTS AS WILL BE FURTHER
NOTED.  IT URGES THAT SAVE WHERE INCONSISTENT WITH THE EXPRESS TERMS OF
SEC. 315(A), ALL PROVISIONS OF R.S. SEC. 3186 ARE MADE APPLICABLE TO
THE ESTATE TAX LIEN BY REASON OF SEC. 211 OF THE REVENUE ACT OF 1916,
WHICH PROVIDES: 

"THAT ALL ADMINISTRATIVE, SPECIAL, AND GENERAL PROVISIONS OF LAW,
INCLUDING THE LAWS IN RELATION TO THE ASSESSMENT AND COLLECTION OF
TAXES NOT HERETOFORE SPECIFICALLY REPEALED ARE HEREBY MADE TO APPLY TO
THIS TITLE SO FAR AS APPLICABLE AND NOT INCONSISTENT WITH ITS
PROVISIONS." 

BUT WE THINK THAT THE DIFFERENCES BETWEEN R.S. SEC. 3186 AND SEC.
315(A), AND THEIR LEGISLATIVE HISTORY AS SEPARATE ENACTMENTS, INDICATE
THAT EACH WAS INTENDED TO OPERATE INDEPENDENTLY OF THE OTHER. 

NO REFERENCE TO R.S. SEC. 3186 OR TO ANY REQUIREMENT FOR RECORDING
NOTICE OF THE LIEN.  THE LIEN OF R.S. SEC. 3186 IS UPON ALL THE
PROPERTY OF THE PERSON LIABLE FOR THE TAX, WHILE THE LIEN OF SEC.
315(A) ATTACHES ONLY TO THE PROPERTY INCLUDED IN AND TAXED AS THE GROSS
ESTATE NOT USED TO PAY ADMINISTRATION EXPENSES.  THE LIEN OF R.S. SEC.
3186 CONTINUES UNTIL THE TAX LIABILITY IS PAID WHILE THE LIEN OF SEC.
315(A) CONTINUES FOR TEN YEARS FROM THE DEATH OF THE DECEDENT.  OF
PARTICULAR SIGNIFICANCE IS THE DIFFERENCE IN TIME WHEN THE LIENS ATTACH
UNDER THE TWO SECTIONS.  UNDER R.S. SEC. 3186 THERE IS NO LIEN AND NO
NOTICE CAN BE RECORDED UNTIL THERE HAS BEEN A DEMAND BY THE COLLECTOR
AND A REFUSAL TO PAY IT BY THE TAXPAYER.  UNDER SEC. 315(A), AS HAS
BEEN STATED, THE LIEN ARISES ON THE DEATH OF THE DECEDENT AND BECOMES
EFFECTIVE AGAINST PURCHASERS AND MORTGAGEES WITHOUT ASSESSMENT OR
DEMAND AND OBVIOUSLY BEFORE IT WOULD BE POSSIBLE TO RECORD A NOTICE OF
LIEN UNDER THE PROVISIONS OF R.S. SEC. 3186. 

SINCE THE ENACTMENT OF THE REVENUE ACT OF 1916, R.S. SEC. 3186 HAS
BEEN AMENDED FOUR TIMES,  FN1 AND SEC. 209 OF THE REVENUE ACT OF
1916(WHICH BECAME SEC. 315(A) OF THE 1926 ACT) HAS BEEN AMENDED TWICE
AND TWICE REENACTED WITHOUT AMENDMENT.  FN2  WITH ONE EXCEPTION, IN
NONE OF THE AMENDMENTS OR REENACTMENTS OF THE ONE SECTION WAS ANY
REFERENCE MADE TO THE OTHER.  SECTION 409 OF THE REVENUE ACT OF 1921
ADDED A PROVISION TO THE ESTATE TAX LIEN SECTION AUTHORIZING THE
COMMISSIONER UNDER CERTAIN CIRCUMSTANCES TO RELEASE THE LIEN.  A
SIMILAR PROVISION WAS NOT ADDED TO R.S. SEC. 3186 UNTIL THE REVENUE ACT
OF 1928.  BY SEC. 613 OF THAT ACT, SEC. 3186 WAS AMENDED TO PROVIDE FOR
SUCH RELEASE, THE AMENDMENT, BY SUBSECTION (F), BEING MADE APPLICABLE
TO "A LIEN IN RESPECT OF ANY INTERNAL REVENUE TAX, WHETHER OR NOT THE
LIEN WAS IMPOSED BY THIS SECTION." 

AT THE SAME TIME, THE RELEASE PROVISION OF SEC. 315(A) WAS REPEALED. 
BY SEC. 809 OF THE REVENUE ACT OF 1932, HOWEVER, THE LATTER WAS
REENACTED, IT HAVING BEEN DISCOVERED THAT THERE WAS NEED FOR A
PROVISION AUTHORIZING RELEASE OF THE ESTATE TAX LIEN PRIOR TO
ASSESSMENT.  H. REP. NO. 708, 72D CONG. 1ST SESS. 50.  MOREOVER IT IS
NOT WITHOUT SIGNIFICANCE THAT CONGRESS, IN ENACTING A GIFT TAX IN THE
REVENUE ACT OF 1932, PROVIDED IN SEC. 510 OF THAT ACT THAT THE GIFT TAX
SHOULD BE A LIEN ON THE PROPERTY PASSING TO THE DONEE, USING WORDS
ALMOST IDENTICAL TO THESE OF SEC. 315(A).  THE COMMITTEE REPORTS STATE
THAT "BY THIS PROVISION THERE IS IMPOSED A LIEN ADDITIONAL TO THAT
IMPOSED BY SECTION 3186 OF THE REVISED STATUTES."  H. REP. NO. 708, 72D
CONG. 1ST SESS. 30; SEN. REP. NO. 665, 72D CONG. 1ST SESS. 42.  THIS
HISTORY AND THE DIFFERENCES BETWEEN THE PROVISIONS ALREADY NOTED, WOULD
SEEM TO COMPEL THE CONCLUSION THAT SEC. 315(A) WAS INTENDED TO OPERATE
INDEPENDENTLY OF R.S. SEC. 3186, AND THAT THE ESTATE TAX LIEN CREATED
BY THE FORMER IS NOT SUBJECT TO THE LATTER'S REQUIREMENT OF
RECORDATION. 

(B) SETS UP A PROCEDURE WHEREBY THE COMMISSIONER MAY BE REQUIRED TO
CERTIFY THE AMOUNT OF THE TAX DUE AND IN THAT EVENT SUBSECTION (C)
RELEASES ANY PART OF THE GROSS ESTATE SUBSEQUENTLY ACQUIRED BY A BONA
FIDE PURCHASER, FROM ANY LIEN FOR A DEFICIENCY IN THE TAX WHICH MAY BE
THEREAFTER ASSESSED - A PROCEDURE WHICH WOULD HAVE AFFORDED ADEQUATE
PROTECTION TO PETITIONER FROM ANY DEFICIENCY LIEN IN THIS CASE.  THESE
PROVISIONS NOT ONLY RECOGNIZE THAT THE LIEN COMES INTO EXISTENCE BEFORE
THE TAX IS ASSESSED OR DEMANDED, BUT THEY ARE UNNECESSARY AND
INOPERATIVE IF NOTICE OF THE LIEN IS REQUIRED BY R.S. SEC. 3186 TO BE
RECORDED. 

IT IS EVIDENT FROM A COMPARISON OF THE TWO SECTIONS THAT CONGRESS, IN
PROVIDING FOR THE ESTATE TAX LIEN, HAS PROCEEDED ON THE ASSUMPTION THAT
IN THE CASE OF THE TAX ON PROPERTY PASSING AT DEATH AND WHICH IS
DISTRIBUTED IN CONSEQUENCE OF THE DEATH, THERE IS GREATER NEED OF A
LIEN IN ADVANCE OF ASSESSMENT AND DEMAND FOR PAYMENT OF THE TAX THAN IN
THE CASE OF OTHER TYPES OF TAXES; AND THAT THERE IS LESS NEED FOR
PROTECTION OF THIRD PERSONS BY A RECORDED NOTICE OF THE LIEN WHEN THE
PROPERTY PASSING AT DEATH IS NORMALLY DEALT WITH BY PROBATE AND ESTATE
TAX PROCEEDINGS OF PUBLIC NOTORIETY. 

THIS IS EMPHASIZED BY THE PROVISIONS OF SEC. 315(B) WHICH RELIEVE
BONA FIDE PURCHASERS OF PROPERTY TRANSFERRED INTER VIVOS BY THE
DECEDENT IN CONTEMPLATION OF DEATH, FROM THE LIEN WHICH IN THE CASE OF
PROPERTY TRANSFERRED AT DEATH IS ENFORCIBLE AGAINST SUCH PURCHASERS. 
THIS PROVISION, LIKE SEC. 313(C) WOULD BE UNNECESSARY IF R.S. SEC. 3186
REQUIRED NOTICE OF THE LIEN TO BE RECORDED.  THE CONCLUSION SEEMS
INESCAPABLE THAT THE TWO SECTIONS APPLY INDEPENDENTLY, EACH OF THE
OTHER, AT LEAST TO THE EXTENT THAT NOTICE OF THE LIEN AUTHORIZED BY
SEC. 315(A) IS NOT REQUIRED TO BE RECORDED UNDER R.S. SEC. 3186. 
WHETHER THE LIEN CREATED BY SEC. 315(A) COULD BE RECORDED BY THE
PROCEDURES ESTABLISHED BY SEC. 3186 AND STATE STATUTES ENACTED IN
ACCORDANCE WITH THAT SECTION NEED NOT NOW BE DECIDED.    PETITIONER
ALSO INSISTS THAT THE STATUTE VIOLATES THE FIFTH AMENDMENT BY
AUTHORIZING AN UNRECORDED TAX LIEN AGAINST THE PROPERTY MORTGAGED TO IT
AND WITHHOLDING SUCH A LIEN AGAINST INNOCENT PURCHASERS OF PROPERTY
WHICH A DECEDENT HAD TRANSFERRED INTER VIVOS IN CONTEMPLATION OF
DEATH.  UNLIKE THE FOURTEENTH AMENDMENT, THE FIFTH CONTAINS NO EQUAL
PROTECTION CLAUSE AND IT PROVIDES NO GUARANTY AGAINST DISCRIMINATORY
LEGISLATION BY CONGRESS.  LABELLE IRON WORKS V. UNITED STATES, 256 U.S.
377, 392; STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 584-585; SUNSHINE
COAL CO. V. ADKINS, 310 U.S. 381, 400, 401; HELVERING V. LERNER STORES
CO., 314 U.S. 463, 468.  EVEN IF DISCRIMINATORY LEGISLATION MAY BE SO
ARBITRARY AND INJURIOUS IN CHARACTER AS TO VIOLATE THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT, SEE STEWARD MACHINE CO. V. DAVIS, SUPRA,
585; CURRIN V. WALLACE, 306 U.S. 1, 13, NO SUCH CASE IS PRESENTED
HERE. 

FOR REASONS ALREADY INDICATED WE THINK THERE IS ADEQUATE BASIS FOR
THE DISTINCTION MADE BY THE STATUTE BETWEEN INNOCENT PURCHASERS OF
PROPERTY WHICH PASSES AT THE DECEDENT'S DEATH AND THOSE OF PROPERTY
WHICH HE CONVEYED IN HIS LIFETIME IN ANTICIPATION OF DEATH.  AS WE HAVE
POINTED OUT, THE ESTATE TAX STATUS OF PROPERTY PASSING AT DECEDENT'S
DEATH IS MORE READILY ASCERTAINED THAN THAT OF PROPERTY WHICH HE HAS
CONVEYED AWAY IN HIS LIFETIME AND WHICH SO FAR AS NORMAL PROBATE AND
TAX PROCEEDINGS ARE CONCERNED WOULD NOT APPEAR TO BE RELATED TO HIS
ESTATE OR TAXABLE AS A PART OF IT.  WE DO NOT FIND IN SUCH A
CLASSIFICATION ANY BASIS FOR SAYING THAT THE DISCRIMINATION IN THE
STATUTE IS SO ARBITRARY AS TO VIOLATE DUE PROCESS.  AFFIRMED. 

FN1  ACT OF FEB. 26, 1925, 43 STAT. 994; REVENUE ACT OF 1928, SEC.
613, 45 STAT. 875; REVENUE ACT OF 1934, SEC. 509, 48 STAT. 757; REVENUE
ACT OF 1939, SEC. 401, 53 STAT. 882.  THE SECTION IS NOW SECS. 3670-77
OF THE INTERNAL REVENUE CODE. 

FN2  REVENUE ACT OF 1919, SEC. 409, 40 STAT. 1100; REVENUE ACT OF
1921, SEC. 409, 42 STAT. 283; REVENUE ACT OF 1924, SEC. 315(A), 43
STAT. 312; REVENUE ACT OF 1926, SEC. 315(A), 44 STAT. 80.  THE SECTION
IS NOW SEC. 827 OF THE INTERNAL REVENUE CODE. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





MICHIGAN V. UNITED STATES, 317 U.S. 338 


NO. 214.  ARGUED DECEMBER 9, 10, 1942.  - DECIDED JANUARY 4, 1943 - 127
F.2D 64, AFFIRMED. 


A FEDERAL TAX LIEN ON PRIVATE REAL ESTATE, SECURING A FEDERAL ESTATE
TAX, TAKES PRECEDENCE OVER LATER LIENS SECURING STATE TAXES.  P. 340. 

MICHIGAN ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 607, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
OF THE DISTRICT COURT, 41 F.SUPP.  41, ENFORCING A FEDERAL ESTATE TAX
LIEN. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO DETROIT BANK V. UNITED STATES, ANTE, P.
329.  IT INVOLVES THE LIEN FOR ESTATE TAXES ASSERTED BY THE GOVERNMENT
AND CONSIDERED IN OUR OPINION IN THAT CASE. 

PETITIONERS, THE CITY OF DETROIT, THE COUNTY OF WAYNE, AND THE STATE
OF MICHIGAN, ASSERT LIENS FOR CITY, COUNTY AND STATE TAXES ON THE REAL
ESTATE IN QUESTION, ACCRUING SUBSEQUENT TO THE FEDERAL ESTATE TAX
LIEN.  AS DEFENDANTS IN THE SUIT BROUGHT BY THE GOVERNMENT TO FORECLOSE
THE LIEN, THEY ATTACK IT ON ALL THE GROUNDS CONSIDERED AND REJECTED IN
OUR OPINION IN THE DETROIT BANK CASE.  THEY ALSO CONTEND THAT THE STATE
LIENS ARE GIVEN SUPERIORITY OVER THE FEDERAL LIEN BY VIRTUE OF STATE
STATUTES.  SECTION 3429 OF THE COMPILED LAWS OF MICHIGAN, 1929, AS
AMENDED BY ACT NO. 38 OF THE EXTRA SESSION OF 1934, DECLARES THAT TAXES
"SHALL BECOME A LIEN UPON SUCH REAL PROPERTY" ON SPECIFIED DATES
FOLLOWING THEIR ASSESSMENT AND, AS CONSTRUED BY PETITIONERS, STATES
THAT THEY SHALL BE A "FIRST LIEN, PRIOR, SUPERIOR, AND PARAMOUNT." 
R.S. SEC. 3186, IN THE OFFICES OF REGISTERS OF DEEDS IN THE COUNTIES OF
MICHIGAN.  PETITIONERS CONTEND THAT THESE AND OTHER STATUTORY
PROVISIONS AS CONSTRUED BY MICHIGAN COURTS GIVE SUPERIORITY TO STATE
TAX LIENS OVER OTHER UNRECORDED LIENS, INCLUDING THE PRESENT ESTATE TAX
LIEN OF THE FEDERAL GOVERNMENT. 

WE DO NOT STOP TO INQUIRE WHETHER THIS CONSTRUCTION OF THE STATE
STATUTES IS THE CORRECT ONE, FOR WE THINK THE ARGUMENT IGNORES THE
EFFECT OF A LIEN FOR FEDERAL TAXES UNDER THE SUPREMACY CLAUSE OF THE
CONSTITUTION.  THE ESTABLISHMENT OF A TAX LIEN BY CONGRESS IS AN
EXERCISE OF ITS CONSTITUTIONAL POWER "TO LAY AND COLLECT TAXES." 
ARTICLE I, SEC. 8 OF THE CONSTITUTION.  UNITED STATES V. SNYDER, 149
U.S. 210.  AND LAWS OF CONGRESS ENACTED PURSUANT TO THE CONSTITUTION
ARE BY ARTICLE VI OF THE CONSTITUTION DECLARED TO 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." 

"IT IS OF THE VERY NATURE AND ESSENCE OF A LIEN, THAT NO MATTER INTO
WHOSE HANDS THE PROPERTY GOES, IT PASSES CUM ONERE."  BURTON V. SMITH,
13 PET. 464, 483; RANKIN V. SCOTT, 12 WHEAT.  177, 179; HOWARD V.
RAILWAY CO., 101 U.S. 837, 845.  HENCE IT IS NOT DEBATABLE THAT A TAX
LIEN IMPOSED BY A LAW OF CONGRESS, AS WE HAVE HELD THE PRESENT LIEN IS
IMPOSED, CANNOT, WITHOUT THE CONSENT OF CONGRESS, BE DISPLACED BY LATER
LIENS IMPOSED BY AUTHORITY OF ANY STATE LAW OR JUDICIAL DECISION. 
UNITED STATES V. SNYDER, SUPRA; UNITED STATES V. GREENVILLE, 118 F.2D
963.  SIMILARLY WE HELD THAT THE PRIORITY OF PAYMENT COMMANDED BY R.S.
SEC. 3466 COULD NOT BE SET ASIDE BY STATE LEGISLATION.  UNITED STATES
V. TEXAS, 314 U.S. 480,486; SPOKANE COUNTY V. UNITED STATES, 279 U.S.
80; NEW YORK V. MACLAY, 288 U.S. 290; CF. MISSOURI V. ROSS, 299 U.S.
72. 

AS THE FEDERAL LIEN WITH WHICH WE ARE HERE CONCERNED ATTACHED TO
PRIVATE PROPERTY PRIOR TO THE ACQUISITION OF ANY INTEREST IN THAT
PROPERTY BY THE STATE, WE NEED NOT CONSIDER THE EXTENT TO WHICH
CONGRESS MAY GIVE, OR INTENDED BY SEC. 315(A) TO GIVE, PRIORITY TO A
FEDERAL LIEN OVER A PREVIOUSLY PERFECTED STATE LIEN.  COMPARE NEW YORK
V. MACLAY, SUPRA, 292; SPOKANE COUNTY V. UNITED STATES, SUPRA, 95;
UNITED STATES V. TEXAS, SUPRA, 484-6.  AFFIRMED. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















PARKER V. BROWN, 317 U.S. 341 


NO. 46.  ARGUED MAY 5, 1942(NO. 1040, 1941 TERM).  REARGUED OCTOBER 12,
13, 1942.  - DECIDED JANUARY 4, 1943.  - 39 F.SUPP.  895, REVERSED. 


1.  A SUIT IN A FEDERAL COURT TO ENJOIN ENFORCEMENT OF A STATE
AGRICULTURAL PRORATION PROGRAM, IN WHICH THE VALIDITY OF THE PROGRAM IS
CHALLENGED AS IN CONFLICT WITH FEDERAL ANTITRUST LAWS, IS A SUIT
"ARISING UNDER" A "LAW REGULATING COMMERCE" AND IS MAINTAINABLE WITHOUT
REGARD TO THE AMOUNT IN CONTROVERSY.  28 U.S.C. SEC. 41(1), (8).  P.
349. 

2.  A MAJORITY OF THE COURT ARE OF OPINION THAT THIS SUIT TO ENJOIN
ENFORCEMENT OF A MARKETING PLAN ADOPTED UNDER THE CALIFORNIA
AGRICULTURAL PRORATE ACT IS WITHIN THE EQUITY JURISDICTION OF THE
DISTRICT COURT, SINCE THE COMPLAINT ALLEGES AND THE EVIDENCE SHOWS
THREATENED IRREPARABLE INJURY TO THE COMPLAINANT'S BUSINESS AND
THREATENED PROSECUTIONS BY REASON OF HIS HAVING MARKETED HIS CROP UNDER
THE PROTECTION OF THE DISTRICT COURT'S INJUNCTION.  P. 349. 

3.  A PRORATE MARKETING PROGRAM UNDER THE CALIFORNIA AGRICULTURAL
PRORATE ACT, ADOPTED BY THE STATE FOR REGULATING THE HANDLING,
DISPOSITION, AND PRICES OF RAISINS PRODUCED IN CALIFORNIA, A LARGE PART
OF WHICH GO INTO INTERSTATE AND FOREIGN COMMERCE, HELD NOT WITHIN THE
INTENDED SCOPE OF, AND NOT A VIOLATION OF, THE SHERMAN ACT.  P. 350. 

4.  A PROGRAM PURSUANT TO THE CALIFORNIA AGRICULTURAL PRORATE ACT FOR
MARKETING THE 1940 RAISIN CROP, ADOPTED WITH THE COLLABORATION OF
OFFICIALS OF THE U.S. DEPARTMENT OF AGRICULTURE AND AIDED BY LOANS FROM
THE COMMODITY CREDIT CORPORATION RECOMMENDED BY THE SECRETARY OF
AGRICULTURE, HELD NOT IN CONFLICT WITH THE FEDERAL AGRICULTURAL
MARKETING AGREEMENT ACT OF 1937, WHERE THE SECRETARY HAD NOT PROPOSED
OR PROMULGATED ANY ORDER UNDER THAT ACT APPLICABLE TO THE MARKETING OF
RAISINS.  PP. 352, 358. 

5.  THE MARKETING PROGRAM FOR THE 1940 RAISIN CROP, ADOPTED PURSUANT
TO THE CALIFORNIA AGRICULTURAL PRORATE ACT, THE DECLARED PURPOSE OF
WHICH IS TO "CONSERVE THE AGRICULTURAL WEALTH OF THE STATE" AND TO
"PREVENT ECONOMIC WASTE IN THE MARKETING OF AGRICULTURAL PRODUCTS" OF
THE STATE, AND WHICH OPERATES TO ELIMINATE COMPETITION AMONG PRODUCERS
IN RESPECT OF THE TERMS OF SALE (INCLUDING THE PRICE) OF THE CROP AND
TO IMPOSE RESTRICTIONS ON THE SALE AND DISTRIBUTION TO BUYERS WHO
SUBSEQUENTLY SELL AND SHIP IN INTERSTATE COMMERCE, HELD A REGULATION OF
STATE INDUSTRY OF LOCAL CONCERN WHICH, IN THE CIRCUMSTANCES DETAILED IN
THE OPINION, IS NOT PROHIBITED BY THE COMMERCE CLAUSE IN THE ABSENCE OF
CONGRESSIONAL LEGISLATION PROHIBITING OR REGULATING TRANSACTIONS
AFFECTED BY THE STATE PROGRAM.  PP. 359, 368. 

(1)  THE RESTRICTIONS WHICH THE STATE PROGRAM IMPOSES UPON THE
INTRASTATE SALE OF A COMMODITY BY ITS PRODUCER TO A PROCESSOR WHO
CONTEMPLATES DOING, AND IN FACT DOES, WORK UPON THE COMMODITY BEFORE
PACKING IT AND SHIPPING IT IN INTERSTATE COMMERCE, DO NOT VIOLATE THE
COMMERCE CLAUSE.  P. 359. 

(2)  LEMKE V. FARMERS GRAIN CO., 258 U.S. 50, AND SHAFER V. FARMERS
GRAIN CO., 268 U.S. 189, DISTINGUISHED.  P. 361. 

(3)  WHEN CONGRESS HAS NOT EXERTED ITS POWER UNDER THE COMMERCE
CLAUSE, AND STATE REGULATION OF MATTERS OF LOCAL CONCERN IS SO RELATED
TO INTERSTATE COMMERCE THAT IT ALSO OPERATES AS A REGULATION OF THAT
COMMERCE, THE RECONCILIATION OF SUCH POWER OF CONGRESS WITH THAT
RESERVED TO THE STATE IS TO BE ATTAINED BY THE ACCOMMODATION OF THE
COMPETING DEMANDS OF THE STATE AND NATIONAL INTERESTS INVOLVED.  P.
362. 

(4)  STATE REGULATIONS AFFECTING INTERSTATE COMMERCE ARE TO BE
SUSTAINED, NOT BECAUSE THEY ARE "INDIRECT" RATHER THAN "DIRECT," NOT
BECAUSE THEY AFFECT RATHER THAN COMMAND THE OPERATIONS OF INTERSTATE
COMMERCE, BUT BECAUSE, UPON A CONSIDERATION OF ALL THE RELEVANT FACTS
AND CIRCUMSTANCES, THE MATTER APPEARS AN APPROPRIATE ONE FOR LOCAL
REGULATIONS, FOR WHICH THERE MAY BE WIDE SCOPE WITHOUT MATERIALLY
OBSTRUCTING THE FREE FLOW OF COMMERCE.  P. 362. 

(5)  EXAMINATION OF THE EVIDENCE IN THIS CASE AND OF AVAILABLE DATA
OF THE RAISIN INDUSTRY IN CALIFORNIA, OF WHICH THE COURT MAY TAKE
JUDICIAL NOTICE, LEAVES NO DOUBT THAT THE EVILS ATTENDING THE
PRODUCTION AND MARKETING OF RAISINS IN THAT STATE PRESENT A PROBLEM
LOCAL IN CHARACTER AND URGENTLY DEMANDING STATE ACTION FOR THE ECONOMIC
PROTECTION OF THOSE ENGAGED IN ONE OF ITS IMPORTANT INDUSTRIES.  P.
363. 

(6)  WHERE THE SECRETARY OF AGRICULTURE, WHO COULD HAVE ADOPTED A
MARKETING PROGRAM FOR RAISINS UNDER THE FEDERAL AGRICULTURAL MARKETING
AGREEMENT ACT, HAS INSTEAD, AS THAT ACT AUTHORIZES, COOPERATED IN
PROMOTING THE STATE MARKETING PROGRAM, THE COURT CANNOT SAY THAT THE
EFFECT OF THE STATE PROGRAM ON INTERSTATE COMMERCE IS ONE WHICH THE
COMMERCE CLAUSE FORBIDS.  AND PARTICULARLY SHOULD STATE REGULATION OF
LOCAL MATTERS BE SUSTAINED WHERE ITS EFFECT ON COMMERCE IS ONE WHICH IT
HAS BEEN THE POLICY OF CONGRESS, BY ITS LEGISLATION, TO ENCOURAGE.  P.
368. 

PARKER, DIRECTOR OF AGRICULTURE, ET AL. V. BROWN. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES ENJOINING
THE ENFORCEMENT, AGAINST THE APPELLEE, OF A MARKETING PROGRAM ADOPTED
PURSUANT TO THE CALIFORNIA AGRICULTURAL PRORATE ACT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS FOR OUR CONSIDERATION ARE WHETHER THE MARKETING PROGRAM
ADOPTED FOR THE 1940 RAISIN CROP UNDER THE CALIFORNIA AGRICULTURAL
PRORATE ACT  FN1  IS RENDERED INVALID (1) BY THE SHERMAN ACT, OR (2) BY
THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, AS AMENDED, 7 U.S.C.
SECS. 601, ET SEQ., OR (3) BY THE COMMERCE CLAUSE OF THE CONSTITUTION. 

APPELLEE, A PRODUCER AND PACKER OF RAISINS IN CALIFORNIA, BROUGHT
THIS SUIT IN THE DISTRICT COURT TO ENJOIN APPELLANTS - THE STATE
DIRECTOR OF AGRICULTURE, RAISIN PRORATION ZONE NO. 1, THE MEMBERS OF
THE STATE AGRICULTURAL PRORATE ADVISORY COMMISSION AND OF THE PROGRAM
COMMITTEE FOR ZONE NO. 1, AND OTHERS CHARGED BY THE STATUTE WITH THE
ADMINISTRATION OF THE PRORATE ACT - FROM ENFORCING, AS TO APPELLEE, A
PROGRAM FOR MARKETING THE 1940 CROP OF RAISINS PRODUCED IN "RAISIN
PRORATION ZONE NO. 1."  AFTER A TRIAL UPON ORAL TESTIMONY, A
STIPULATION OF FACTS AND CERTAIN EXHIBITS, THE DISTRICT COURT HELD THAT
THE 1940 RAISIN MARKETING PROGRAM WAS AN ILLEGAL INTERFERENCE WITH AND
UNDUE BURDEN UPON INTERSTATE COMMERCE AND GAVE JUDGMENT FOR APPELLEE
GRANTING THE INJUNCTION PRAYED FOR.  39 F.SUPP.  895.  THE CASE WAS
TRIED BY A DISTRICT COURT OF THREE JUDGES AND COMES HERE ON APPEAL
UNDER SECS. 266 AND 238 OF THE JUDICIAL CODE AS AMENDED, 28 U.S.C.
SECS. 380, 345. 

AS APPEARS FROM THE EVIDENCE AND FROM THE FINDINGS OF THE DISTRICT
COURT, ALMOST ALL THE RAISINS CONSUMED IN THE UNITED STATES, AND NEARLY
ONE-HALF OF THE WORLD CROP, ARE PRODUCED IN RAISIN PRORATION ZONE NO.
1.  BETWEEN 90 AND 95 PER CENT OF THE RAISINS GROWN IN CALIFORNIA ARE
ULTIMATELY SHIPPED IN INTERSTATE OR FOREIGN COMMERCE. 

THE HARVESTING AND MARKETING OF THE CROP IN CALIFORNIA FOLLOWS A
UNIFORM PROCEDURE.  THE GROWER OF RAISINS PICKS THE BUNCHES OF GRAPES
AND PLACES THEM FOR DRYING ON TRAYS LAID BETWEEN THE ROWS OF VINES. 
WHEN THE GRAPES HAVE BEEN SUFFICIENTLY DRIED HE PLACES THEM IN "SWEAT
BOXES" WHERE THEIR MOISTURE CONTENT IS EQUALIZED.  AT THIS POINT THE
CURING PROCESS IS COMPLETE.  THE GROWERS SELL THE RAISINS AND DELIVER
THEM IN THE "SWEAT BOXES" TO HANDLERS OR PACKERS WHOSE PLANTS ARE ALL
LOCATED WITHIN THE ZONE.  THE PACKERS PROCESS THEM AT THEIR PLANTS AND
THEN SHIP THEM IN INTERSTATE COMMERCE.  THOSE RAISINS WHICH ARE TO BE
MARKETED IN CLUSTERS ARE SOMETIMES MERELY PACKED, UNSTEMMED, IN
SUITABLE CONTAINERS, BUT ARE MORE OFTEN CLEANED, FUMIGATED, AND, WHEN
NECESSARY, STEAMED TO MAKE THE STEMS PLIABLE.  MOST OF THE RAISINS ARE
NOT SOLD IN CLUSTERS; SUCH RAISINS ARE STEMMED BEFORE PACKING, AND MOST
PACKERS ALSO CLEAN, GRADE AND SORT THEM.  ONE VARIETY IS ALSO SEEDED
BEFORE PACKING. 

THE PACKERS SELL THEIR RAISINS THROUGH AGENTS, BROKERS, JOBBERS AND
OTHER MIDDLEMEN, PRINCIPALLY LOCATED IN OTHER STATES OR FOREIGN
COUNTRIES.  UNTIL HE IS READY TO SHIP THE RAISINS THE PACKER STORES
THEM IN THE FORM IN WHICH THEY HAVE BEEN RECEIVED FROM PRODUCERS.  THE
LENGTH OF TIME THAT THE RAISINS REMAIN AT THE PACKING PLANTS BEFORE
PROCESSING AND SHIPPING VARIES FROM A FEW DAYS UP TO TWO YEARS,
DEPENDING UPON THE PACKER'S CURRENT SUPPLY OF RAISINS AND THE MARKET
DEMAND.  THE PACKERS FREQUENTLY PLACE ORDERS WITH PRODUCERS FOR FALL
DELIVERY, BEFORE THE CROP IS HARVESTED, AND AT THE SAME TIME ENTER INTO
CONTRACTS FOR THE SALE OF RAISINS TO THEIR CUSTOMERS.  IN RECENT YEARS
MOST PACKERS HAVE HAD A SUBSTANTIAL "CARRY OVER" OF STORED RAISINS AT
THE END OF EACH CROP SEASON, WHICH ARE USUALLY MARKETED BEFORE THE
RAISINS OF THE NEXT YEAR'S CROP ARE MARKETED. 

THE CALIFORNIA AGRICULTURAL PRORATE ACT AUTHORIZES THE ESTABLISHMENT,
THROUGH ACTION OF STATE OFFICIALS, OF PROGRAMS FOR THE MARKETING OF
AGRICULTURAL COMMODITIES PRODUCED IN THE STATE, SO AS TO RESTRICT
COMPETITION AMONG THE GROWERS AND MAINTAIN PRICES IN THE DISTRIBUTION
OF THEIR COMMODITIES TO PACKERS.  THE DECLARED PURPOSE OF THE ACT IS TO
"CONSERVE THE AGRICULTURAL WEALTH OF THE STATE" AND TO "PREVENT
ECONOMIC WASTE IN THE MARKETING OF AGRICULTURAL PRODUCTS" OF THE
STATE.  IT AUTHORIZES (SEC. 3) THE CREATION OF AN AGRICULTURAL PRORATE
ADVISORY COMMISSION OF NINE MEMBERS, OF WHICH A STATE OFFICIAL, THE
DIRECTOR OF AGRICULTURE, IS EX-OFFICIO A MEMBER.  THE OTHER EIGHT
MEMBERS ARE APPOINTED FOR TERMS OF FOUR YEARS BY THE GOVERNOR AND
CONFIRMED BY THE SENATE, AND ARE REQUIRED TO TAKE AN OATH OF OFFICE. 
SEC. 4. 

UPON THE PETITION OF TEN PRODUCERS FOR THE ESTABLISHMENT OF A PRORATE
MARKETING PLAN FOR ANY COMMODITY WITHIN A DEFINED PRODUCTION ZONE (SEC.
8), AND AFTER A PUBLIC HEARING (SEC. 9), AND AFTER MAKING PRESCRIBED
ECONOMIC FINDINGS (SEC. 10) SHOWING THAT THE INSTITUTION OF A PROGRAM
FOR THE PROPOSED ZONE WILL PREVENT AGRICULTURAL WASTE AND CONSERVE
AGRICULTURAL WEALTH OF THE STATE WITHOUT PERMITTING UNREASONABLE
PROFITS TO PRODUCERS, THE COMMISSION IS AUTHORIZED TO GRANT THE
PETITION.  THE DIRECTOR, WITH THE APPROVAL OF THE COMMISSION, IS THEN
REQUIRED TO SELECT A PROGRAM COMMITTEE FROM AMONG NOMINEES CHOSEN BY
THE QUALIFIED PRODUCERS WITHIN THE ZONE, TO WHICH HE MAY ADD NOT MORE
THAN TWO HANDLERS OR PACKERS WHO RECEIVE THE REGULATED COMMODITY FROM
PRODUCERS FOR MARKETING.  SECS. 11, 14, 15. 

THE PROGRAM COMMITTEE IS REQUIRED (SEC. 15) TO FORMULATE A PRORATION
MARKETING PROGRAM FOR THE COMMODITY PRODUCED IN THE ZONE, WHICH THE
COMMISSION IS AUTHORIZED TO APPROVE AFTER A PUBLIC HEARING AND A
"FINDING THAT THE PROGRAM IS REASONABLY CALCULATED TO CARRY OUT THE
OBJECTIVES OF THE ACT."  THE COMMISSION MAY, IF SO ADVISED, MODIFY THE
PROGRAM AND APPROVE IT AS MODIFIED.  IF THE PROPOSED PROGRAM, AS
APPROVED BY THE COMMISSION, IS CONSENTED TO BY 65 PER CENT IN NUMBER OF
PRODUCERS IN THE ZONE OWNING 51 PER CENT OF THE ACREAGE DEVOTED TO
PRODUCTION OF THE REGULATED CROP, THE DIRECTOR IS REQUIRED TO DECLARE
THE PROGRAM INSTITUTED.  SEC. 16. 

AUTHORITY TO ADMINISTER THE PROGRAM, SUBJECT TO THE APPROVAL OF THE
DIRECTOR OF AGRICULTURE, IS CONFERRED ON THE PROGRAM COMMITTEE.  SECS.
6, 18, 22.  SECTION 22.5 DECLARES THAT IT SHALL BE A MISDEMEANOR, WHICH
IS PUNISHABLE BY FINE AND IMPRISONMENT (PENAL CODE SEC. 19), FOR ANY
PRODUCER TO SELL OR ANY HANDLER TO RECEIVE OR POSSESS WITHOUT PROPER
AUTHORITY ANY COMMODITY FOR WHICH A PRORATION PROGRAM HAS BEEN
INSTITUTED.  LIKE PENALTY IS IMPOSED UPON ANY PERSON WHO AIDS OR ABETS
IN THE COMMISSION OF ANY OF THE ACTS SPECIFIED IN THE SECTION, AND IT
IS DECLARED THAT EACH "INFRACTION SHALL CONSTITUTE A SEPARATE AND
DISTINCT OFFENSE."  SECTION 25 IMPOSES A CIVIL LIABILITY OF $500 "FOR
EACH AND EVERY VIOLATION" OF ANY PROVISION OF A PRORATION PROGRAM. 

THE SEASONAL PRORATION MARKETING PROGRAM FOR RAISINS, WITH WHICH WE
ARE NOW CONCERNED, BECAME EFFECTIVE ON SEPTEMBER 7, 1940.  THIS
PROVIDED THAT THE PROGRAM COMMITTEE SHOULD CLASSIFY RAISINS AS
"STANDARD," "SUBSTANDARD," AND "INFERIOR"; "INFERIOR" RAISINS ARE THOSE
WHICH ARE UNFIT FOR HUMAN CONSUMPTION, AS DEFINED IN THE FEDERAL FOOD,
DRUG AND COSMETIC ACT, 21 U.S.C. SECS. 301 ET SEQ.  THE COMMITTEE IS
REQUIRED TO ESTABLISH RECEIVING STATIONS WITHIN THE ZONE TO WHICH EVERY
PRODUCER MUST DELIVER ALL RAISINS WHICH HE DESIRES TO MARKET.  THE
RAISINS ARE GRADED AT THESE STATIONS.  ALL INFERIOR RAISINS ARE TO BE
PLACED IN THE "INFERIOR RAISIN POOL," TO BE DISPOSED OF BY THE
COMMITTEE "ONLY FOR ASSURED BY-PRODUCT AND OTHER DIVERSION PURPOSES." 
ALL SUBSTANDARD RAISINS, AND AT LEAST 20 PER CENT OF THE TOTAL STANDARD
AND SUBSTANDARD RAISINS PRODUCED, MUST BE PLACED IN A "SURPLUS POOL." 
RAISINS IN THIS POOL MAY ALSO BE DISPOSED OF ONLY FOR "ASSURED BY
PRODUCT AND OTHER DIVERSION PURPOSES," EXCEPT THAT UNDER CERTAIN
CIRCUMSTANCES THE PROGRAM COMMITTEE MAY TRANSFER STANDARD RAISINS FROM
THE SURPLUS POOL TO THE STABILIZATION POOL.  FIFTY PER CENT OF THE CROP
MUST BE PLACED IN A "STABILIZATION POOL." 

UNDER THE PROGRAM THE PRODUCER IS PERMITTED TO SELL THE REMAINING 30
PER CENT OF HIS STANDARD RAISINS, DENOMINATED "FREE TONNAGE," THROUGH
ORDINARY COMMERCIAL CHANNELS, SUBJECT TO THE REQUIREMENT THAT HE OBTAIN
A "SECONDARY CERTIFICATE" AUTHORIZING SUCH MARKETING AND PAY A
CERTIFICATE FEE OF $2.50 FOR EACH TON COVERED BY THE CERTIFICATE. 
CERTIFICATION IS STATED TO BE A DEVICE FOR CONTROLLING "THE TIME AND
VOLUME OF MOVEMENT" OF FREE TONNAGE INTO SUCH ORDINARY COMMERCIAL
CHANNELS.  RAISINS IN THE STABILIZATION POOL ARE TO BE DISPOSED OF BY
THE COMMITTEE "IN SUCH MANNER AS TO OBTAIN STABILITY IN THE MARKET AND
TO DISPOSE OF SUCH RAISINS," BUT NO RAISINS (OTHER THAN THOSE SUBJECT
TO SPECIAL LENDING OR POOLING ARRANGEMENTS OF THE FEDERAL GOVERNMENT)
CAN BE SOLD BY THE COMMITTEE AT LESS THAN THE PREVAILING MARKET PRICE
FOR RAISINS OF THE SAME VARIETY AND GRADE ON THE DATE OF SALE.  UNDER
THE PROGRAM THE COMMITTEE IS TO MAKE ADVANCES TO PRODUCERS OF FROM $25
TO $27.50 A TON, DEPENDING UPON THE VARIETY OF RAISINS, FOR DELIVERIES
INTO THE SURPLUS POOL, AND FROM $50 TO $55 A TON FOR DELIVERIES INTO
THE STABILIZATION POOL.  THE COMMITTEE IS AUTHORIZED TO PLEDGE THE
RAISINS HELD IN THOSE POOLS IN ORDER TO SECURE FUNDS TO FINANCE POOL
OPERATIONS AND MAKE ADVANCES TO GROWERS. 

APPELLEE'S BILL OF COMPLAINT CHALLENGES THE VALIDITY OF THE PRORATION
PROGRAM AS IN VIOLATION OF THE COMMERCE CLAUSE AND THE SHERMAN ACT; IN
SUPPORT OF THE DECREE OF THE DISTRICT COURT HE ALSO URGES THAT IT
CONFLICTS WITH AND IS SUPERSEDED BY THE FEDERAL AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937.  THE COMPLAINT ALLEGES THAT HE IS ENGAGED WITHIN
THE MARKETING ZONE BOTH IN PRODUCING AND IN PURCHASING AND PACKING
RAISINS FOR SALE AND SHIPMENT INTERSTATE; THAT BEFORE THE ADOPTION OF
THE PROGRAM HE HAD ENTERED INTO CONTRACTS FOR THE SALE OF 1940 CROP
RAISINS; THAT, UNLESS ENJOINED, APPELLANTS WILL ENFORCE THE PROGRAM
AGAINST APPELLEE BY CRIMINAL PROSECUTIONS AND WILL PREVENT HIM FROM
MARKETING HIS 1940 CROP, FROM FULFILLING HIS SALES CONTRACTS, AND FROM
PURCHASING FOR SALE AND SELLING IN INTERSTATE COMMERCE RAISINS OF THAT
CROP. 

APPELLEE'S ALLEGATIONS OF IRREPARABLE INJURY ARE IN GENERAL TERMS,
BUT IT APPEARS FROM THE EVIDENCE THAT HE HAD PRODUCED 200 TONS OF 1940
CROP RAISINS; THAT HE HAD CONTRACTED TO SELL 762 1/2 TONS OF THE 1940
CROP; THAT HE HAD DEALT IN 2,000 TONS OF RAISINS OF THE 1939 CROP, AND
EXPECTED TO SELL, IF THE CHALLENGED PROGRAM WERE NOT IN FORCE, 3,000
TONS OF THE 1940 CROP AT $60 A TON; THAT THE PRE-SEASON PRICE TO
GROWERS OF RAISINS OF THE 1940 CROP, BEFORE THE PROGRAM BECAME
EFFECTIVE, WAS $45 PER TON, AND THAT IMMEDIATELY AFTERWARD IT ROSE TO
$55 PER TON OR HIGHER.  IT ALSO APPEARS THAT, THE DISTRICT COURT HAVING
AWARDED THE FINAL INJUNCTION PRAYED, APPELLEE HAS PROCEEDED WITH THE
MARKETING OF HIS 1940 CROP AND HAS DISPOSED OF ALL EXCEPT TWELVE TONS,
WHICH REMAIN ON HAND.  ALTHOUGH THE DISTRICT COURT FOUND THAT THE
AMOUNT IN CONTROVERSY EXCEEDS $3,000, WE ARE OF OPINION THAT AS THE
COMPLAINT ASSAILS THE VALIDITY OF THE PROGRAM UNDER THE ANTI-TRUST
LAWS, 15 U.S.C. SECS. 1-33, THE SUIT IS ONE "ARISING UNDER" A "LAW
REGULATING COMMERCE"; AND ALLEGATION AND PROOF OF THE JURISDICTIONAL
AMOUNT ARE NOT REQUIRED.  28 U.S.C. SECS. 41(1), (8); PEYTON V. RAILWAY
EXPRESS AGENCY, 316 U.S. 350.  THE MAJORITY OF THE COURT IS ALSO OF
OPINION THAT THE SUIT IS WITHIN THE EQUITY JURISDICTION OF THE COURT,
SINCE THE COMPLAINT ALLEGES, AND THE EVIDENCE SHOWS, THREATENED
IRREPARABLE INJURY TO RESPONDENT'S BUSINESS AND THREATENED PROSECUTIONS
BY REASON OF HIS HAVING MARKETED HIS CROP UNDER THE PROTECTION OF THE
DISTRICT COURT'S DECREE. 

VALIDITY OF THE PRORATE PROGRAM UNDER THE SHERMAN ACT. 

CONTRACT, COMBINATION ...  OR CONSPIRACY, IN RESTRAINT OF TRADE OR
COMMERCE AMONG THE SEVERAL STATES."  AND SEC. 2, 15 U.S.C. SEC. 2,
MAKES IT UNLAWFUL TO "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."  WE MAY ASSUME FOR
PRESENT PURPOSES THAT THE CALIFORNIA PRORATE PROGRAM WOULD VIOLATE THE
SHERMAN ACT IF IT WERE ORGANIZED AND MADE EFFECTIVE SOLELY BY VIRTUE OF
A CONTRACT, COMBINATION OR CONSPIRACY OF PRIVATE PERSONS, INDIVIDUAL OR
CORPORATE.  WE MAY ASSUME ALSO, WITHOUT DECIDING, THAT CONGRESS COULD,
IN THE EXERCISE OF ITS COMMERCE POWER, PROHIBIT A STATE FROM
MAINTAINING A STABILIZATION PROGRAM LIKE THE PRESENT BECAUSE OF ITS
EFFECT ON INTERSTATE COMMERCE.  OCCUPATION OF A LEGISLATIVE "FIELD" BY
CONGRESS IN THE EXERCISE OF A GRANTED POWER IS A FAMILIAR EXAMPLE OF
ITS CONSTITUTIONAL POWER TO SUSPEND STATE LAWS.  SEE ADAMS EXPRESS CO.
V. CRONINGER, 226 U.S. 491, 505; NAPIER V. ATLANTIC COAST LINE, 272
U.S. 605, 607; MISSOURI PACIFIC R. CO. V. PORTER, 273 U.S. 341;
ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S. 498, 510.    BUT IT IS
PLAIN THAT THE PRORATE PROGRAM HERE WAS NEVER INTENDED TO OPERATE BY
FORCE OF INDIVIDUAL AGREEMENT OR COMBINATION.  IT DERIVED ITS AUTHORITY
AND ITS EFFICACY FROM THE LEGISLATIVE COMMAND OF THE STATE AND WAS NOT
INTENDED TO OPERATE OR BECOME EFFECTIVE WITHOUT THAT COMMAND.  WE FIND
NOTHING IN THE LANGUAGE OF THE SHERMAN ACT OR IN ITS HISTORY WHICH
SUGGESTS THAT ITS PURPOSE WAS TO RESTRAIN A STATE OR ITS OFFICERS OR
AGENTS FROM ACTIVITIES DIRECTED BY ITS LEGISLATURE.  IN A DUAL SYSTEM
OF GOVERNMENT IN WHICH, UNDER THE CONSTITUTION, THE STATES ARE
SOVEREIGN, SAVE ONLY AS CONGRESS MAY CONSTITUTIONALLY SUBTRACT FROM
THEIR AUTHORITY, AN UNEXPRESSED PURPOSE TO NULLIFY A STATE'S CONTROL
OVER ITS OFFICERS AND AGENTS IS NOT LIGHTLY TO BE ATTRIBUTED TO
CONGRESS. 

THE SHERMAN ACT MAKES NO MENTION OF THE STATE AS SUCH, AND GIVES NO
HINT THAT IT WAS INTENDED TO RESTRAIN STATE ACTION OR OFFICIAL ACTION
DIRECTED BY A STATE.  THE ACT IS APPLICABLE TO "PERSONS" INCLUDING
CORPORATIONS (SEC. 7), AND IT AUTHORIZES SUITS UNDER IT BY PERSONS AND
CORPORATIONS (SEC. 15).  A STATE MAY MAINTAIN A SUIT FOR DAMAGES UNDER
IT, GEORGIA V. EVANS, 316 U.S. 159, BUT THE UNITED STATES MAY NOT,
UNITED STATES V. COOPER CORP., 312 U.S. 600 - CONCLUSIONS DERIVED NOT
FROM THE LITERAL MEANING OF THE WORDS "PERSON" AND "CORPORATION" BUT
FROM THE PURPOSE, THE SUBJECT MATTER, THE CONTEXT AND THE LEGISLATIVE
HISTORY OF THE STATUTE. 

THERE IS NO SUGGESTION OF A PURPOSE TO RESTRAIN STATE ACTION IN THE
ACT'S LEGISLATIVE HISTORY.  THE SPONSOR OF THE BILL WHICH WAS
ULTIMATELY ENACTED AS THE SHERMAN ACT DECLARED THAT IT PREVENTED ONLY
"BUSINESS COMBINATIONS."  21 CONG. REC. 2562, 2457; SEE ALSO AT 2459,
2461.  THAT ITS PURPOSE WAS TO SUPPRESS COMBINATIONS TO RESTRAIN
COMPETITION AND ATTEMPTS TO MONOPOLIZE BY INDIVIDUALS AND CORPORATIONS,
ABUNDANTLY APPEARS FROM ITS LEGISLATIVE HISTORY.  SEE APEX HOSIERY CO.
V. LEADER, 310 U.S. 469, 492-93 AND N. 15; UNITED STATES V. ADDYSTON
PIPE & STEEL CO., 85 F. 271, AFFIRMED 175 U.S. 211; STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, 54-58. 

TRUE, A STATE DOES NOT GIVE IMMUNITY TO THOSE WHO VIOLATE THE SHERMAN
ACT BY AUTHORIZING THEM TO VIOLATE IT, OR BY DECLARING THAT THEIR
ACTION IS LAWFUL, NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S.
197, 332, 344-47; AND WE HAVE NO QUESTION OF THE STATE OR ITS
MUNICIPALITY BECOMING A PARTICIPANT IN A PRIVATE AGREEMENT OR
COMBINATION BY OTHERS FOR RESTRAINT OF TRADE, CF. UNION PACIFIC R. CO.
V. UNITED STATES, 313 U.S. 450.  HERE THE STATE COMMAND TO THE
COMMISSION AND TO THE PROGRAM COMMITTEE OF THE CALIFORNIA PRORATE ACT
IS NOT RENDERED UNLAWFUL BY THE SHERMAN ACT SINCE, IN VIEW OF THE
LATTER'S WORDS AND HISTORY, IT MUST BE TAKEN TO BE A PROHIBITION OF
INDIVIDUAL AND NOT STATE ACTION.  IT IS THE STATE WHICH HAS CREATED THE
MACHINERY FOR ESTABLISHING THE PRORATE PROGRAM.  ALTHOUGH THE
ORGANIZATION OF A PRORATE ZONE IS PROPOSED BY PRODUCERS, AND A PRORATE
PROGRAM, APPROVED BY THE COMMISSION, MUST ALSO BE APPROVED BY
REFERENDUM OF PRODUCERS, IT IS THE STATE, ACTING THROUGH THE
COMMISSION, WHICH ADOPTS THE PROGRAM AND WHICH ENFORCES IT WITH PENAL
SANCTIONS, IN THE EXECUTION OF A GOVERNMENTAL POLICY.  THE PREREQUISITE
APPROVAL OF THE PROGRAM UPON REFERENDUM BY A PRESCRIBED NUMBER OF
PRODUCERS IS NOT THE IMPOSITION BY THEM OF THEIR WILL UPON THE MINORITY
BY FORCE OF AGREEMENT OR COMBINATION WHICH THE SHERMAN ACT PROHIBITS. 
THE STATE ITSELF EXERCISES ITS LEGISLATIVE AUTHORITY IN MAKING THE
REGULATION AND IN PRESCRIBING THE CONDITIONS OF ITS APPLICATION.  THE
REQUIRED VOTE ON THE REFERENDUM IS ONE OF THESE CONDITIONS.  COMPARE
CURRIN V. WALLACE, 306 U.S. 1, 16; HAMPTON & CO. V. UNITED STATES, 276
U.S. 394, 407; WICKARD V. FILBURN, ANTE, P. 111. 

THE STATE IN ADOPTING AND ENFORCING THE PRORATE PROGRAM MADE NO
CONTRACT OR AGREEMENT AND ENTERED INTO NO CONSPIRACY IN RESTRAINT OF
TRADE OR TO ESTABLISH MONOPOLY BUT, AS SOVEREIGN, IMPOSED THE RESTRAINT
AS AN ACT OF GOVERNMENT WHICH THE SHERMAN ACT DID NOT UNDERTAKE TO
PROHIBIT.  OLSEN V. SMITH, 195 U.S. 332, 344-45; CF. LOWENSTEIN V.
EVANS, 69 F. 908, 910. 

VALIDITY OF THE PROGRAM UNDER THE AGRICULTURAL MARKETING AGREEMENT
ACT. 

THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, 50 STAT. 246, 7
U.S.C. SECS. 601 ET SEQ., AUTHORIZES THE SECRETARY OF AGRICULTURE TO
ISSUE ORDERS LIMITING THE QUANTITY OF SPECIFIED AGRICULTURAL PRODUCTS,
INCLUDING FRUITS, WHICH MAY BE MARKETED "IN THE CURRENT OF  ...  OR SO
AS DIRECTLY TO BURDEN, OBSTRUCT, OR AFFECT INTERSTATE OR FOREIGN
COMMERCE."  SUCH ORDERS MAY ALLOT THE AMOUNTS WHICH HANDLERS MAY
PURCHASE FROM ANY PRODUCER BY MEANS WHICH EQUALIZE THE AMOUNT MARKETED
AMONG PRODUCERS; MAY PROVIDE FOR THE CONTROL AND ELIMINATION OF
SURPLUSES AND FOR THE ESTABLISHMENT OF RESERVE POOLS OF THE REGULATED
PRODUCE.  SEC. 8C (6).  THE FEDERAL STATUTE DIFFERS FROM THE CALIFORNIA
PRORATE ACT IN THAT ITS SANCTION FALLS UPON HANDLERS ALONE WHILE THE
STATE ACT (SEC. 22.5(3)) APPLIES TO GROWERS AND EXTENDS ALSO TO
HANDLERS SO FAR AS THEY MAY UNLAWFULLY RECEIVE OR HAVE IN THEIR
POSSESSION WITHIN THE STATE ANY COMMODITY SUBJECT TO A PRORATE
PROGRAM. 

WE MAY ASSUME THAT THE POWERS CONFERRED UPON THE SECRETARY WOULD
EXTEND TO THE CONTROL OF SURPLUSES IN THE RAISIN INDUSTRY THROUGH A
POOLING ARRANGEMENT SUCH AS WAS PROMULGATED UNDER THE CALIFORNIA
PRORATE ACT IN THE PRESENT CASE.  SEE UNITED STATES V. ROCK ROYAL CO
OP., 307 U.S. 533; CURRIN V. WALLACE, SUPRA.  WE MAY ASSUME ALSO THAT A
STABILIZATION PROGRAM ADOPTED UNDER THE AGRICULTURAL MARKETING
AGREEMENT ACT WOULD SUPERSEDE THE STATE ACT.  BUT THE FEDERAL ACT
BECOMES EFFECTIVE ONLY IF A PROGRAM IS ORDERED BY THE SECRETARY. 
REASON TO BELIEVE" THAT THE ISSUANCE OF AN ORDER WILL TEND TO
EFFECTUATE THE DECLARED POLICY OF THE ACT WITH RESPECT TO ANY
COMMODITY, HE SHALL GIVE DUE NOTICE OF AN OPPORTUNITY FOR A HEARING
UPON A PROPOSED ORDER, AND SEC. 8C (4) PROVIDES THAT AFTER THE HEARING
HE SHALL ISSUE AN ORDER IF HE FINDS AND SETS FORTH IN THE ORDER THAT
ITS ISSUANCE WILL TEND TO EFFECTUATE THE DECLARED POLICY OF THE ACT
WITH RESPECT TO THE COMMODITY IN QUESTION.  SINCE THE SECRETARY HAS NOT
GIVEN NOTICE OF HEARING AND HAS NOT PROPOSED OR PROMULGATED ANY ORDER
REGULATING RAISINS, IT MUST BE TAKEN THAT HE HAS NO REASON TO BELIEVE
THAT ISSUANCE OF AN ORDER WILL TEND TO EFFECTUATE THE POLICY OF THE
ACT. 

THE SECRETARY, BY SEC. 10(I), IS AUTHORIZED "IN ORDER TO EFFECTUATE
THE DECLARED POLICY" OF THE ACT, AND "IN ORDER TO OBTAIN UNIFORMITY IN
THE FORMULATION, ADMINISTRATION, AND ENFORCEMENT OF FEDERAL AND STATE
PROGRAMS RELATING TO THE REGULATION OF THE HANDLING OF AGRICULTURAL
COMMODITIES," TO CONFER AND COOPERATE WITH DULY CONSTITUTED AUTHORITIES
OF ANY STATE.  FROM THIS AND THE WHOLE STRUCTURE OF THE ACT, IT WOULD
SEEM THAT IT CONTEMPLATES THAT ITS POLICY MAY BE EFFECTUATED BY A STATE
PROGRAM EITHER WITH OR WITHOUT THE PROMULGATION OF A FEDERAL PROGRAM BY
ORDER OF THE SECRETARY.  CF. UNITED STATES V. ROCK ROYAL CO-OP., SUPRA.
IT FOLLOWS THAT THE ADOPTION OF AN ADEQUATE PROGRAM BY THE STATE MAY
BE DEEMED BY THE SECRETARY A SUFFICIENT GROUND FOR BELIEVING THAT THE
POLICIES OF THE FEDERAL ACT WILL BE EFFECTUATED WITHOUT THE
PROMULGATION OF AN ORDER. 

IT IS EVIDENT, THEREFORE, THAT THE MARKETING ACT CONTEMPLATES THE
EXISTENCE OF STATE PROGRAMS AT LEAST UNTIL SUCH TIME AS THE SECRETARY
SHALL ESTABLISH A FEDERAL MARKETING PROGRAM, UNLESS THE STATE PROGRAM
IN SOME WAY CONFLICTS WITH THE POLICY OF THE FEDERAL ACT.  THE ACT
CONTEMPLATES THAT EACH SOVEREIGN SHALL OPERATE "IN ITS OWN SPHERE BUT
CAN EXERT ITS AUTHORITY IN CONFORMITY RATHER THAN IN CONFLICT WITH THAT
OF THE OTHER."  H. REP. NO. 1241, 74TH CONG., 1ST SESS. PP. 22-23; S.
REP. 1011, 74TH CONG., 1ST SESS. P. 15.  FN2  THE ONLY SUGGESTED
POSSIBILITY OF CONFLICT IS BETWEEN THE DECLARED PURPOSES OF THE TWO
ACTS.  THE OBJECT OF THE FEDERAL STATUTE IS STATED TO BE THE
ESTABLISHMENT, BY EXERCISE OF THE POWER CONFERRED ON THE SECRETARY, OF
"ORDERLY MARKETING CONDITIONS FOR AGRICULTURAL COMMODITIES IN
INTERSTATE COMMERCE" SUCH AS WILL TEND TO ESTABLISH "PARITY PRICES" FOR
FARM PRODUCTS,  FN3  BUT WITH THE FURTHER PURPOSE THAT, IN THE INTEREST
OF CONSUMERS, CURRENT CONSUMPTIVE DEMAND IS TO BE CONSIDERED AND THAT
NO ACTION SHALL BE TAKEN FOR THE PURPOSE OF MAINTAINING PRICES ABOVE
THE PARITY LEVEL.  SEC. 2. 

THE DECLARED OBJECTIVE OF THE CALIFORNIA ACT IS TO PREVENT EXCESSIVE
SUPPLIES OF AGRICULTURAL COMMODITIES FROM "ADVERSELY AFFECTING" THE
MARKET, AND ALTHOUGH THE STATUTE SPEAKS IN TERMS OF "ECONOMIC
STABILITY" AND "AGRICULTURAL WASTE" RATHER THAN OF PRICE, THE EVIDENT
PURPOSE AND EFFECT OF THE REGULATION IS TO "CONSERVE AGRICULTURAL
WEALTH OF THE STATE" BY RAISING AND MAINTAINING PRICES, BUT "WITHOUT
PERMITTING UNREASONABLE PROFITS TO PRODUCERS."  SEC. 10.  THE ONLY
POSSIBILITY OF CONFLICT WOULD SEEM TO BE IF A STATE PROGRAM WERE TO
RAISE PRICES BEYOND THE PARITY PRICE PRESCRIBED BY THE FEDERAL ACT, A
CONDITION WHICH HAS NOT OCCURRED.  FN4 

THAT THE SECRETARY HAS REASON TO BELIEVE THAT THE STATE ACT WILL TEND
TO EFFECTUATE THE POLICIES OF THE FEDERAL ACT SO AS NOT TO REQUIRE THE
ISSUANCE OF AN ORDER UNDER THE LATTER IS EVIDENCED BY THE APPROVAL
GIVEN BY THE DEPARTMENT OF AGRICULTURE TO THE STATE PROGRAM BY THE LOAN
AGREEMENT BETWEEN THE STATE AND THE COMMODITY CREDIT CORPORATION.  FN5
BY SEC. 302 OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938, 52 STAT. 43, 7
U.S.C. SEC. 1302(A), THE COMMODITY CREDIT CORPORATION IS AUTHORIZED
"UPON THE RECOMMENDATION OF THE SECRETARY AND WITH THE APPROVAL OF THE
PRESIDENT, TO MAKE AVAILABLE LOANS ON AGRICULTURAL COMMODITIES  ...  "
THE "AMOUNT, TERMS, AND CONDITIONS" OF SUCH LOANS ARE TO BE "FIXED BY
THE SECRETARY, SUBJECT TO THE APPROVAL OF THE CORPORATION AND THE
PRESIDENT."  UNDER THIS AUTHORITY THE COMMODITY CREDIT CORPORATION MADE
LOANS OF $5,146,000 TO ZONE NO. 1, SECURED BY A PLEDGE OF 109,000 TONS
OF 1940 CROP RAISINS IN THE SURPLUS AND STABILIZATION POOLS.  THESE
LOANS WERE ULTIMATELY LIQUIDATED BY SALES OF 76,000 TONS TO PACKERS AND
33,000 TONS TO THE FEDERAL SURPLUS MARKETING ADMINISTRATION, AN AGENCY
OF THE DEPARTMENT OF AGRICULTURE,  FN6  FOR RELIEF DISTRIBUTION AND FOR
EXPORT UNDER THE LEND-LEASE PROGRAM.  FN7  THE LOANS WERE CONDITIONAL
UPON THE ADOPTION BY THE STATE OF THE PRESENT SEASONAL MARKETING
PROGRAM.  WE ARE INFORMED BY THE GOVERNMENT, WHICH AT OUR REQUEST FILED
A BRIEF AMICUS CURIAE, THAT UNDER THE LOAN AGREEMENT PRICES AND SALES
POLICIES AS TO THE PLEDGED RAISINS WERE TO BE CONTROLLED BY A COMMITTEE
APPOINTED BY THE SECRETARY, AND THAT OFFICIALS OF THE DEPARTMENT OF
AGRICULTURE COLLABORATED IN DRAFTING THE 1940 STATE RAISIN PROGRAM. 

COMMODITY CREDIT CORPORATION TO MAKE NONRECOURSE LOANS TO PRODUCERS OF
CERTAIN AGRICULTURAL PRODUCTS AT SPECIFIED PERCENTAGES OF THE PARITY
PRICE, AND AUTHORIZES LOANS ON ANY AGRICULTURAL COMMODITY.  THE
GOVERNMENT INFORMS US THAT IN MAKING LOANS UNDER THE LATTER AUTHORITY,
SEC. 302 HAS BEEN CONSTRUED BY THE DEPARTMENT OF AGRICULTURE AS
REQUIRING THE LOANS TO BE MADE ONLY IN ORDER TO EFFECTUATE THE POLICY
OF FEDERAL AGRICULTURAL LEGISLATION.  FN8  SECTION 2 OF THE
AGRICULTURAL ADJUSTMENT ACT OF 1938 DECLARES IT TO BE THE POLICY OF
CONGRESS TO ACHIEVE THE STATUTORY OBJECTIVES THROUGH LOANS.  THE
AGRICULTURAL ADJUSTMENT ACT OF 1938 AND THE AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937 WERE BOTH DERIVED FROM THE AGRICULTURAL
ADJUSTMENT ACT OF 1933, 48 STAT. 31, AND ARE COORDINATE PARTS OF A
SINGLE PLAN FOR RAISING FARM PRICES TO PARITY LEVELS.  THE CONDITIONS
IMPOSED BY THE SECRETARY OF AGRICULTURE IN THE LOAN AGREEMENT WITH THE
STATE OF CALIFORNIA, AND THE COLLABORATION OF FEDERAL OFFICIALS IN THE
DRAFTING OF THE PROGRAM, MUST BE TAKEN AS AN EXPRESSION OF OPINION BY
THE DEPARTMENT OF AGRICULTURE THAT THE STATE PROGRAM THUS AIDED BY THE
LOAN IS CONSISTENT WITH THE POLICIES OF THE AGRICULTURAL ADJUSTMENT AND
AGRICULTURAL MARKETING AGREEMENT ACTS.  WE FIND NO CONFLICT BETWEEN THE
TWO ACTS AND NO SUCH OCCUPATION OF THE LEGISLATIVE FIELD BY THE MERE
ADOPTION OF THE AGRICULTURAL MARKETING AGREEMENT ACT, WITHOUT THE
ISSUANCE OF ANY ORDER BY THE SECRETARY PUTTING IT INTO EFFECT, AS WOULD
PRECLUDE THE EFFECTIVE OPERATION OF THE STATE ACT. 

WE HAVE NO OCCASION TO DECIDE WHETHER THE SAME CONCLUSION WOULD
FOLLOW IF THE STATE PROGRAM HAD NOT BEEN ADOPTED WITH THE COLLABORATION
OF OFFICIALS OF THE DEPARTMENT OF AGRICULTURE AND AIDED BY LOANS FROM
THE COMMODITY CREDIT CORPORATION RECOMMENDED BY THE SECRETARY OF
AGRICULTURE. 

VALIDITY OF THE PROGRAM UNDER THE COMMERCE CLAUSE. 

THE COURT BELOW FOUND THAT APPROXIMATELY 95 PER CENT OF THE
CALIFORNIA RAISIN CROP FINDS ITS WAY INTO INTERSTATE OR FOREIGN
COMMERCE.  IT IS NOT DENIED THAT THE PRORATION PROGRAM IS SO DEVISED AS
TO COMPEL THE DELIVERY BY EACH PRODUCER, INCLUDING APPELLEE, OF OVER
TWO-THIRDS OF HIS 1940 RAISIN CROP TO THE PROGRAM COMMITTEE, AND TO
SUBJECT IT TO THE MARKETING CONTROL OF THE COMMITTEE.  THE PROGRAM,
ADOPTED THROUGH THE EXERCISE OF THE LEGISLATIVE POWER DELEGATED TO
STATE OFFICIALS, HAS THE FORCE OF LAW.  IT CLOTHES THE COMMITTEE WITH
POWER AND IMPOSES ON IT THE DUTY TO CONTROL MARKETING OF THE CROP SO AS
TO ENHANCE THE PRICE OR AT LEAST TO MAINTAIN PRICES BY RESTRAINTS ON
COMPETITION OF PRODUCERS IN THE SALE OF THEIR CROP.  THE PROGRAM
OPERATES TO ELIMINATE COMPETITION OF THE PRODUCERS IN THE TERMS OF SALE
OF THE CROP, INCLUDING PRICE.  AND SINCE 95 PER CENT OF THE CROP IS
MARKETED IN INTERSTATE COMMERCE, THE PROGRAM MAY BE TAKEN TO HAVE A
SUBSTANTIAL EFFECT ON THE COMMERCE, IN PLACING RESTRICTIONS ON THE SALE
AND MARKETING OF A PRODUCT TO BUYERS WHO EVENTUALLY SELL AND SHIP IT IN
INTERSTATE COMMERCE.    THE QUESTION IS THUS PRESENTED WHETHER IN THE
ABSENCE OF CONGRESSIONAL LEGISLATION PROHIBITING OR REGULATING THE
TRANSACTIONS AFFECTED BY THE STATE PROGRAM, THE RESTRICTIONS WHICH IT
IMPOSES UPON THE SALE WITHIN THE STATE OF A COMMODITY BY ITS PRODUCER
TO A PROCESSOR WHO CONTEMPLATES DOING, AND IN FACT DOES, WORK UPON THE
COMMODITY BEFORE PACKING AND SHIPPING IT IN INTERSTATE COMMERCE,
VIOLATE THE COMMERCE CLAUSE. 

THE GOVERNMENTS OF THE STATES ARE SOVEREIGN WITHIN THEIR TERRITORY
SAVE ONLY AS THEY ARE SUBJECT TO THE PROHIBITIONS OF THE CONSTITUTION
OR AS THEIR ACTION IN SOME MEASURE CONFLICTS WITH POWERS DELEGATED TO
THE NATIONAL GOVERNMENT, OR WITH CONGRESSIONAL LEGISLATION ENACTED IN
THE EXERCISE OF THOSE POWERS.  THIS COURT HAS REPEATEDLY HELD THAT THE
GRANT OF POWER TO CONGRESS BY THE COMMERCE CLAUSE DID NOT WHOLLY
WITHDRAW FROM THE STATES THE AUTHORITY TO REGULATE THE COMMERCE WITH
RESPECT TO MATTERS OF LOCAL CONCERN, ON WHICH CONGRESS HAS NOT SPOKEN. 
MINNESOTA RATE CASES, 230 U.S. 352, 399-400; SOUTH CAROLINA HIGHWAY
DEPT. V. BARNWELL BROS., 303 U.S. 177, 187, ET SEQ.; CALIFORNIA V.
THOMPSON, 313 U.S. 109, 113-14 AND CASES CITED; DUCKWORTH V. ARKANSAS,
314 U.S. 390.  A FORTIORI THERE ARE MANY SUBJECTS AND TRANSACTIONS OF
LOCAL CONCERN NOT THEMSELVES INTERSTATE COMMERCE OR A PART OF ITS
OPERATIONS WHICH ARE WITHIN THE REGULATORY AND TAXING POWER OF THE
STATES, SO LONG AS STATE ACTION SERVES LOCAL ENDS AND DOES NOT
DISCRIMINATE AGAINST THE COMMERCE, EVEN THOUGH THE EXERCISE OF THOSE
POWERS MAY MATERIALLY AFFECT IT.  WHETHER WE RESORT TO THE MECHANICAL
TEST SOMETIMES APPLIED BY THIS COURT IN DETERMINING WHEN INTERSTATE
COMMERCE BEGINS WITH RESPECT TO A COMMODITY GROWN OR MANUFACTURED
WITHIN A STATE AND THEN SOLD AND SHIPPED OUT OF IT - OR WHETHER WE
CONSIDER ONLY THE POWER OF THE STATE IN THE ABSENCE OF CONGRESSIONAL
ACTION TO REGULATE MATTERS OF LOCAL CONCERN, EVEN THOUGH THE REGULATION
AFFECTS OR IN SOME MEASURE RESTRICTS THE COMMERCE - WE THINK THE
PRESENT REGULATION IS WITHIN STATE POWER. 

IN APPLYING THE MECHANICAL TEST TO DETERMINE WHEN INTERSTATE COMMERCE
BEGINS AND ENDS (SEE FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S. 17, 21
AND CASES CITED; MINNESOTA V. BLASIUS, 290 U.S. 1 AND CASES CITED) THIS
COURT HAS FREQUENTLY HELD THAT FOR PURPOSES OF LOCAL TAXATION OR
REGULATION "MANUFACTURE" IS NOT INTERSTATE COMMERCE EVEN THOUGH THE
MANUFACTURING PROCESS IS OF SLIGHT EXTENT.  CRESCENT OIL CO. V.
MISSISSIPPI, 257 U.S. 129; OLIVER IRON CO. V. LORD, 262 U.S. 172; UTAH
POWER & LIGHT CO. V. PFOST, 286 U.S. 165; HOPE GAS CO. V. HALL, 274
U.S. 284; HEISLER V. THOMAS COLLIERY CO., 260 U.S. 245; CHAMPLIN
REFINING CO. V. COMMISSION, 286 U.S. 210; BAYSIDE FISH CO. V. GENTRY,
297 U.S. 422.  AND SUCH REGULATIONS OF MANUFACTURE HAVE BEEN SUSTAINED
WHERE, AIMED AT MATTERS OF LOCAL CONCERN, THEY HAD THE EFFECT OF
PREVENTING COMMERCE IN THE REGULATED ARTICLE.  KIDD V. PEARSON, 128
U.S. 1; CHAMPLIN REFINING CO. V. COMMISSION, SUPRA; SLIGH V. KIRKWOOD,
237 U.S. 52; SEE CAPITAL CITY DAIRY CO. V. OHIO, 183 U.S. 238, 245;
THOMPSON V. CONSOLIDATED GAS CO., 300 U.S. 55, 77; CF. BAYSIDE FISH CO.
V. GENTRY, SUPRA.  A STATE IS ALSO FREE TO LICENSE AND TAX INTRASTATE
BUYING WHERE THE PURCHASER EXPECTS IN THE USUAL COURSE OF BUSINESS TO
RESELL IN INTERSTATE COMMERCE.  CHASSANIOL V. GREENWOOD, 291 U.S. 584. 
AND NO CASE HAS GONE SO FAR AS TO HOLD THAT A STATE COULD NOT LICENSE
OR OTHERWISE REGULATE THE SALE OF ARTICLES WITHIN THE STATE BECAUSE THE
BUYER, AFTER PROCESSING AND PACKING THEM, WILL, IN THE NORMAL COURSE OF
BUSINESS, SELL AND SHIP THEM IN INTERSTATE COMMERCE. 

ALL OF THESE CASES PROCEED ON THE GROUND THAT THE TAXATION OR
REGULATION INVOLVED, HOWEVER DRASTICALLY IT MAY AFFECT INTERSTATE
COMMERCE, IS NEVERTHELESS NOT PROHIBITED BY THE COMMERCE CLAUSE WHERE
THE REGULATION IS IMPOSED BEFORE ANY OPERATION OF INTERSTATE COMMERCE
OCCURS.  APPLYING THAT TEST, THE REGULATION HERE CONTROLS THE
DISPOSITION, INCLUDING THE SALE AND PURCHASE, OF RAISINS BEFORE THEY
ARE PROCESSED AND PACKED PREPARATORY TO INTERSTATE SALE AND SHIPMENT. 
THE REGULATION IS THUS APPLIED TO TRANSACTIONS WHOLLY INTRASTATE BEFORE
THE RAISINS ARE READY FOR SHIPMENT IN INTERSTATE COMMERCE. 

IT IS FOR THIS REASON THAT THE PRESENT CASE IS TO BE DISTINGUISHED
FROM LEMKE V. FARMERS GRAIN CO., 258 U.S. 50, AND SHAFER V. FARMERS
GRAIN CO., 268 U.S. 189, ON WHICH APPELLEE RELIES.  THERE THE STATE
REGULATION HELD INVALID WAS OF THE BUSINESS OF THOSE WHO PURCHASED
GRAIN WITHIN THE STATE FOR IMMEDIATE SHIPMENT OUT OF IT.  THE COURT WAS
OF OPINION THAT THE PURCHASE OF THE WHEAT FOR SHIPMENT OUT OF THE STATE
WITHOUT RESALE OR PROCESSING WAS A PART OF THE INTERSTATE COMMERCE. 
COMPARE CHASSANIOL V. GREENWOOD, SUPRA. 

THIS DISTINCTION BETWEEN LOCAL REGULATION OF THOSE WHO ARE NOT
ENGAGED IN COMMERCE, ALTHOUGH THE COMMODITY WHICH THEY PRODUCE AND SELL
TO LOCAL BUYERS IS ULTIMATELY DESTINED FOR INTERSTATE COMMERCE, AND THE
REGULATION OF THOSE WHO ENGAGE IN THE COMMERCE BY SELLING THE PRODUCT
INTERSTATE, HAS IN GENERAL SERVED, AND SERVES HERE, AS A READY MEANS OF
DISTINGUISHING THOSE LOCAL ACTIVITIES WHICH, UNDER THE COMMERCE CLAUSE,
ARE THE APPROPRIATE SUBJECT OF STATE REGULATION DESPITE THEIR EFFECT ON
INTERSTATE COMMERCE.  BUT COURTS ARE NOT CONFINED TO SO MECHANICAL A
TEST.  WHEN CONGRESS HAS NOT EXERTED ITS POWER UNDER THE COMMERCE
CLAUSE, AND STATE REGULATION OF MATTERS OF LOCAL CONCERN IS SO RELATED
TO INTERSTATE COMMERCE THAT IT ALSO OPERATES AS A REGULATION OF THAT
COMMERCE, THE RECONCILIATION OF THE POWER THUS GRANTED WITH THAT
RESERVED TO THE STATE IS TO BE ATTAINED BY THE ACCOMMODATION OF THE
COMPETING DEMANDS OF THE STATE AND NATIONAL INTERESTS INVOLVED.  SEE DI
SANTO V. PENNSYLVANIA, 273 U.S. 34, 44(WITH WHICH COMPARE CALIFORNIA V.
THOMPSON, SUPRA); SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS.,
SUPRA; MILK CONTROL BOARD V. EISENBERG CO., 306 U.S. 346; ILLINOIS GAS
CO. V. PUBLIC SERVICE CO., 314 U.S. 498, 504-5. 

SUCH REGULATIONS BY THE STATE ARE TO BE SUSTAINED, NOT BECAUSE THEY
ARE "INDIRECT" RATHER THAN "DIRECT," SEE DI SANTO V. PENNSYLVANIA,
SUPRA; CF. WICKARD V. FILBURN, SUPRA, NOT BECAUSE THEY CONTROL
INTERSTATE ACTIVITIES IN SUCH A MANNER AS ONLY TO AFFECT THE COMMERCE
RATHER THAN TO COMMAND ITS OPERATIONS.  BUT THEY ARE TO BE UPHELD
BECAUSE UPON A CONSIDERATION OF ALL THE RELEVANT FACTS AND
CIRCUMSTANCES IT APPEARS THAT THE MATTER IS ONE WHICH MAY APPROPRIATELY
BE REGULATED IN THE INTEREST OF THE SAFETY, HEALTH AND WELL-BEING OF
LOCAL COMMUNITIES, AND WHICH, BECAUSE OF ITS LOCAL CHARACTER, AND THE
PRACTICAL DIFFICULTIES INVOLVED, MAY NEVER BE ADEQUATELY DEALT WITH BY
CONGRESS.  BECAUSE OF ITS LOCAL CHARACTER ALSO THERE MAY BE WIDE SCOPE
FOR LOCAL REGULATION WITHOUT SUBSTANTIALLY IMPAIRING THE NATIONAL
INTEREST IN THE REGULATION OF COMMERCE BY A SINGLE AUTHORITY AND
WITHOUT MATERIALLY OBSTRUCTING THE FREE FLOW OF COMMERCE, WHICH WERE
THE PRINCIPAL OBJECTS SOUGHT TO BE SECURED BY THE COMMERCE CLAUSE.  SEE
MINNESOTA RATE CASES, SUPRA, 398-412; CALIFORNIA V. THOMPSON, SUPRA,
113.  THERE MAY ALSO BE, AS IN THE PRESENT CASE, LOCAL REGULATIONS
WHOSE EFFECT UPON THE NATIONAL COMMERCE IS SUCH AS NOT TO CONFLICT BUT
TO COINCIDE WITH A POLICY WHICH CONGRESS HAS ESTABLISHED WITH RESPECT
TO IT. 

EXAMINATION OF THE EVIDENCE IN THIS CASE AND OF AVAILABLE DATA OF THE
RAISIN INDUSTRY IN CALIFORNIA, OF WHICH WE MAY TAKE JUDICIAL NOTICE,
LEAVES NO DOUBT THAT THE EVILS ATTENDING THE PRODUCTION AND MARKETING
OF RAISINS IN THAT STATE PRESENT A PROBLEM LOCAL IN CHARACTER AND
URGENTLY DEMANDING STATE ACTION FOR THE ECONOMIC PROTECTION OF THOSE
ENGAGED IN ONE OF ITS IMPORTANT INDUSTRIES.  FN9  BETWEEN 1914 AND 1920
THERE WAS A SPECTACULAR RISE IN PRICE OF ALL TYPES OF CALIFORNIA
GRAPES, INCLUDING RAISIN GRAPES.  THE PRICE OF RAISINS REACHED ITS
PEAK, $235 PER TON, IN 1921, AND WAS FOLLOWED BY LARGE INCREASE IN
ACREAGE WITH ACCOMPANYING REDUCTION IN PRICE.  THE PRICE OF RAISINS IN
MOST YEARS SINCE 1922 HAS RANGED FROM $40 TO $60 PER TON BUT ACREAGE
CONTINUED TO INCREASE UNTIL 1926 AND PRODUCTION REACHED ITS PEAK,
1,433,000 TONS OF RAISIN GRAPES AND 290,000 TONS OF RAISINS, IN 1938. 
SINCE 1920 THERE HAS BEEN A SUBSTANTIAL CARRY OVER OF 30 TO 50% OF EACH
YEAR'S CROP.  THE RESULT HAS BEEN THAT AT LEAST SINCE 1934 THE
INDUSTRY, WITH A LARGE INCREASE IN ACREAGE AND THE ATTENDANT FALL IN
PRICE, HAS BEEN UNABLE TO MARKET ITS PRODUCT AND HAS BEEN COMPELLED TO
SELL AT LESS THAN PARITY PRICES AND IN SOME YEARS AT PRICES REGARDED BY
STUDENTS OF THE INDUSTRY AS LESS THAN THE COST OF PRODUCTION.  FN10 

THE HISTORY OF THE INDUSTRY, AT LEAST SINCE 1929, IS A RECORD OF A
CONTINUOUS SEARCH FOR EXPEDIENTS WHICH WOULD STABILIZE THE MARKETING OF
THE RAISIN CROP AND MAINTAIN A PRICE STANDARD WHICH WOULD BRING FAIR
RETURN TO THE PRODUCERS.  FN11  IT IS SIGNIFICANT OF THE RELATION OF
THE LOCAL INTEREST IN MAINTAINING THIS PROGRAM TO THE NATIONAL INTEREST
IN INTERSTATE COMMERCE, THAT THROUGHOUT THE PERIOD FROM 1929 UNTIL THE
ADOPTION OF THE PRORATE PROGRAM FOR THE 1940 RAISIN CROP, THE NATIONAL
GOVERNMENT HAS CONTRIBUTED TO THESE EFFORTS EITHER BY ITS ESTABLISHMENT
OF MARKETING PROGRAMS PURSUANT TO ACT OF CONGRESS OR BY AIDING PROGRAMS
SPONSORED BY THE STATE.  LOCAL COOPERATIVE MARKET STABILIZATION
PROGRAMS FOR RAISINS IN 1929 AND 1930 WERE APPROVED BY THE FEDERAL FARM
BOARD WHICH SUPPORTED THEM WITH LARGE LOANS.  FN12  IN 1934 A MARKETING
AGREEMENT FOR CALIFORNIA RAISINS WAS PUT INTO EFFECT UNDER SEC. 8(2) OF
THE AGRICULTURAL ADJUSTMENT ACT OF 1933, AS AMENDED, 48 STAT. 528,
WHICH AUTHORIZED THE SECRETARY OF AGRICULTURE, IN ORDER TO EFFECTUATE
THE ACT'S DECLARED POLICY OF ACHIEVING PARITY PRICES, TO ENTER INTO
MARKETING AGREEMENTS WITH PROCESSORS, PRODUCERS AND OTHERS ENGAGED IN
HANDLING AGRICULTURAL COMMODITIES "IN THE CURRENT OF OR IN COMPETITION
WITH, OR SO AS TO BURDEN, OBSTRUCT, OR IN ANY WAY AFFECT, INTERSTATE OR
FOREIGN COMMERCE."  FN13 

RAISIN PRORATION ZONE NO. 1 WAS ORGANIZED IN THE LATTER PART OF
1937.  NO PRORATION PROGRAM WAS ADOPTED FOR THE 1937 CROP, BUT LOANS OF
$1,244,000 WERE MADE ON RAISINS OF THAT CROP BY THE COMMODITY CREDIT
CORPORATION.  FN14  IN AID OF A PRORATION PROGRAM ADOPTED UNDER THE
CALIFORNIA ACT FOR THE 1938 CROP, A SUBSTANTIAL PART OF THAT CROP WAS
PLEDGED TO THE COMMODITY CREDIT CORPORATION AS SECURITY FOR A LOAN OF
$2,688,000, AND WAS ULTIMATELY SOLD TO THE FEDERAL SURPLUS COMMODITIES
CORPORATION FOR RELIEF DISTRIBUTION N15.  SUBSTANTIAL PURCHASES OF
RAISINS OF THE 1939 CROP WERE ALSO MADE BY FEDERAL SURPLUS COMMODITIES
CORPORATION, ALTHOUGH NO PRORATION PROGRAM WAS ADOPTED FOR THAT YEAR. 
FN16  IN AID OF THE 1940 PROGRAM, AS WE HAVE ALREADY NOTED, THE
COMMODITY CREDIT CORPORATION MADE LOANS IN EXCESS OF $5,000,000, AND
33,000 TONS OF THE RAISINS PLEDGED TO IT WERE SOLD TO THE FEDERAL
SURPLUS MARKETING ADMINISTRATION.  FN17 

THIS HISTORY SHOWS CLEARLY ENOUGH THAT THE ADOPTION OF LEGISLATIVE
MEASURES TO PREVENT THE DEMORALIZATION OF THE INDUSTRY BY STABILIZING
THE MARKETING OF THE RAISIN CROP IS A MATTER OF STATE AS WELL AS
NATIONAL CONCERN AND, IN THE ABSENCE OF INCONSISTENT CONGRESSIONAL
ACTION, IS A PROBLEM WHOSE SOLUTION IS PECULIARLY WITHIN THE PROVINCE
OF THE STATE.  IN THE EXERCISE OF ITS POWER THE STATE HAS ADOPTED A
MEASURE APPROPRIATE TO THE END SOUGHT.  THE PROGRAM WAS NOT AIMED AT
NOR DID IT DISCRIMINATE AGAINST INTERSTATE COMMERCE, ALTHOUGH IT
UNDOUBTEDLY AFFECTED THE COMMERCE BY INCREASING THE INTERSTATE PRICE OF
RAISINS AND CURTAILING INTERSTATE SHIPMENTS TO SOME UNDETERMINED
EXTENT.  THE EFFECT ON THE COMMERCE IS NOT GREATER, AND IN SOME
INSTANCES WAS FAR LESS, THAN THAT WHICH THIS COURT HAS HELD NOT TO
AFFORD A BASIS FOR DENYING TO THE STATES THE RIGHT TO PURSUE A
LEGITIMATE STATE END.  CF. KIDD V. PEARSON, SUPRA; SLIGH V. KIRKWOOD,
SUPRA; CHAMPLIN REFINING CO. V. COMMISSION, SUPRA; SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, AND CASES CITED AT P. 189 AND
NOTES 4 AND 5; CALIFORNIA V. THOMPSON, SUPRA, 113-15, AND CASES CITED. 

IN COMPARING THE RELATIVE WEIGHTS OF THE CONFLICTING LOCAL AND
NATIONAL INTERESTS INVOLVED, IT IS SIGNIFICANT THAT CONGRESS, BY ITS
AGRICULTURAL LEGISLATION, HAS RECOGNIZED THE DISTRESSED CONDITION OF
MUCH OF THE AGRICULTURAL PRODUCTION OF THE UNITED STATES, AND HAS
AUTHORIZED MARKETING PROCEDURES, SUBSTANTIALLY LIKE THE CALIFORNIA
PRORATE PROGRAM, FOR STABILIZING THE MARKETING OF AGRICULTURAL
PRODUCTS.  ACTING UNDER THIS LEGISLATION THE SECRETARY OF AGRICULTURE
HAS ESTABLISHED A LARGE NUMBER OF MARKET STABILIZATION PROGRAMS FOR
AGRICULTURAL COMMODITIES MOVING IN INTERSTATE COMMERCE IN VARIOUS PARTS
OF THE COUNTRY, INCLUDING SEVEN AFFECTING CALIFORNIA CROPS.  FN18  ALL
INVOLVED ATTEMPTS IN ONE WAY OR ANOTHER TO PREVENT OVER-PRODUCTION OF
AGRICULTURAL PRODUCTS AND EXCESSIVE COMPETITION IN MARKETING THEM, WITH
PRICE STABILIZATION AS THE ULTIMATE OBJECTIVE.  MOST IF NOT ALL HAD A
LIKE EFFECT IN RESTRICTING SHIPMENTS AND RAISING OR MAINTAINING PRICES
OF AGRICULTURAL COMMODITIES MOVING IN INTERSTATE COMMERCE. 

IT THUS APPEARS THAT WHATEVER EFFECT THE OPERATION OF THE CALIFORNIA
PROGRAM MAY HAVE ON INTERSTATE COMMERCE, IT IS ONE WHICH IT HAS BEEN
THE POLICY OF CONGRESS TO AID AND ENCOURAGE THROUGH FEDERAL AGENCIES IN
CONFORMITY TO THE AGRICULTURAL MARKETING AGREEMENT ACT, AND SEC. 302 OF
THE AGRICULTURAL ADJUSTMENT ACT.  NOR IS THE EFFECT ON THE COMMERCE
GREATER THAN OR SUBSTANTIALLY DIFFERENT IN KIND FROM THAT CONTEMPLATED
BY THE STABILIZATION PROGRAMS AUTHORIZED BY FEDERAL STATUTES.  AS WE
HAVE SEEN, THE AGRICULTURAL MARKETING AGREEMENT ACT IS APPLICABLE TO
RAISINS ONLY ON THE DIRECTION OF THE SECRETARY OF AGRICULTURE WHO,
INSTEAD OF ESTABLISHING A FEDERAL PROGRAM HAS, AS THE STATUTE
AUTHORIZES, COOPERATED IN PROMOTING THE STATE PROGRAM AND AIDED IT BY
SUBSTANTIAL FEDERAL LOANS.  HENCE WE CANNOT SAY THAT THE EFFECT OF THE
STATE PROGRAM ON INTERSTATE COMMERCE IS ONE WHICH CONFLICTS WITH
CONGRESSIONAL POLICY OR IS SUCH AS TO PRECLUDE THE STATE FROM THIS
EXERCISE OF ITS RESERVED POWER TO REGULATE DOMESTIC AGRICULTURAL
PRODUCTION.    WE CONCLUDE THAT THE CALIFORNIA PRORATE PROGRAM FOR THE
1940 RAISIN CROP IS A REGULATION OF STATE INDUSTRY OF LOCAL CONCERN
WHICH, IN ALL THE CIRCUMSTANCES OF THIS CASE WHICH WE HAVE DETAILED,
DOES NOT IMPAIR NATIONAL CONTROL OVER THE COMMERCE IN A MANNER OR TO A
DEGREE FORBIDDEN BY THE CONSTITUTION.  REVERSED.    FN1  ACT OF JUNE 5,
1933, CH. 754, STATUTES OF CALIFORNIA OF 1933, AS AMENDED BY CHS.  471
AND 743, STATUTES OF 1935; CH. 6, EXTRA SESSION, 1938; CHS.  363, 548
AND 894, STATUTES OF 1939; AND CHS.  603, 1150 AND 1186, STATUTES OF
1941.  ITS CONSTITUTIONALITY UNDER BOTH FEDERAL AND STATE CONSTITUTIONS
WAS SUSTAINED BY THE CALIFORNIA SUPREME COURT IN AGRICULTURAL PRORATE
COMMISSION V. SUPERIOR COURT, 5 CAL.2D 550, 55 P.2D 495. 

FN2 SEE ALSO 79 CONG. REC. 9470, 11149-50, 11153; HEARINGS BEFORE THE
SENATE COMMITTEE ON AGRICULTURE AND FORESTRY ON S. 1807(MARCH, 1935)
29, 73; HEARINGS BEFORE THE HOUSE COMMITTEE ON AGRICULTURE (FEB.-MARCH,
1935) 53, 178-9.  THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937 WAS
FOR THE MOST PART A REENACTMENT OF CERTAIN PROVISIONS OF THE
AGRICULTURAL ADJUSTMENT ACT OF 1933, 48 STAT. 31, AS AMENDED IN 1935,
49 STAT. 753.  SEC. 10(I) WAS FIRST INTRODUCED IN 1935, AND REENACTED
WITHOUT CHANGE IN 1937. 

FN3  A "PARITY" PRICE IS ONE WHICH WILL "GIVE AGRICULTURAL
COMMODITIES A PURCHASING POWER WITH RESPECT TO ARTICLES THAT FARMERS
BUY, EQUIVALENT TO THE PURCHASING POWER OF AGRICULTURAL COMMODITIES IN
THE BASE PERIOD."  7 U.S.C. SEC. 602(1).  THE PARITY PRICE IS COMPUTED
BY MULTIPLYING AN INDEX OF PRICES PAID BY FARMERS FOR GOODS USED IN
FARM PRODUCTION, AND FOR FAMILY LIVING EXPENSES, TOGETHER WITH REAL
ESTATE TAXES AND INTEREST ON FARM INDEBTEDNESS, BY THE AVERAGE PRICE
DURING THE BASE PERIOD OF THE COMMODITY IN QUESTION.  SEE DEPT. OF
AGRICULTURE, PARITY PRICES, WHAT THEY ARE AND HOW THEY ARE CALCULATED
(1942).  THE BASE PERIOD FOR COMMODITIES OTHER THAN TOBACCO AND
POTATOES IS AUGUST 1909-JULY 1914.  HOWEVER, BY 7 U.S.C. SEC. 608E THE
PERIOD OF AUGUST 1919-JULY 1929 OR A PART THEREOF MAY BE USED FOR ANY
COMMODITY AS TO WHICH THE SECRETARY FINDS AND PROCLAIMS THAT ADEQUATE
STATISTICS FOR THE 1909-14 PERIOD ARE NOT AVAILABLE.  BY PROCLAMATION
DATED JUNE 26, 1942, THE SECRETARY DESIGNATED THE PERIOD 1919-1929 AS
THE BASE PERIOD FOR RAISINS.  7 FED. REG. 4867. 

FN4  THE PARITY PRICE FOR RAISINS ON JUNE 15, 1942, AS PUBLISHED BY
THE DEPARTMENT OF AGRICULTURE WAS $100.51 PER TON.  PRELIMINARY FIGURES
SHOW THE AVERAGE PRICE FOR THE 1941-42 CROP TO BE $80.60.  PARITY
PRICES, WHAT THEY ARE AND HOW THEY ARE COMPUTED, SUPRA, VII.  PARITY
PRICES FOR RAISINS FOR PREVIOUS YEARS ARE NOT PUBLISHED.  HOWEVER THEY
MAY BE COMPUTED FROM THE BASE PERIOD PRICE OF $105.80 AND THE INDICES
OF PRICES PAID BY FARMERS PUBLISHED BY THE DEPARTMENT OF AGRICULTURE IN
THE STATISTICAL PUBLICATIONS CITED INFRA, NOTE 9.  SUCH COMPUTATIONS
FOR 1933 AND SUBSEQUENT YEARS, SUPPLIED BY THE DEPARTMENT OF
AGRICULTURE, INDICATE THAT WHILE THE PRICE RECEIVED BY THE FARMER FOR
THE 1940 CROP WAS $57.60 THE PARITY PRICE FOR 1940 WAS $80.41 AND FOR
1941 WAS $86.76.  THEY FURTHER INDICATE THAT RAISIN PRICES HAVE NOT
SINCE 1933 EQUALLED PARITY AND THAT THE FIELD PRICES FOR ALL CROPS
PRIOR TO THAT OF 1941 HAVE BEEN FROM $15 TO $40 PER TON BELOW PARITY. 

FN5  THE COMMODITY CREDIT CORPORATION WAS CREATED BY EXECUTIVE ORDER
NO. 6340, OCTOBER 16, 1933.  IT HAS BEEN CONTINUED IN EXISTENCE BY ACTS
OF CONGRESS, 49 STAT. 4; 50 STAT. 5; 53 STAT. 510.  BY REORGANIZATION
PLAN NO. I, 53 STAT. 1429, APPROVED BY ACT OF CONGRESS, 53 STAT. 813,
AND EFFECTIVE JULY 1, 1939, THE CORPORATION WAS TRANSFERRED TO THE
DEPARTMENT OF AGRICULTURE, TO BE "ADMINISTERED IN SUCH DEPARTMENT UNDER
THE GENERAL DIRECTION AND SUPERVISION OF THE SECRETARY OF
AGRICULTURE."  BY EXECUTIVE ORDER NO. 8219, AUG. 7, 1939, 4 FED. REG.
3565, EXCLUSIVE VOTING RIGHTS IN ITS CAPITAL STOCK WERE VESTED IN THE
SECRETARY. 

FN6  THE SURPLUS MARKETING ADMINISTRATION WAS CREATED BY
REORGANIZATION PLAN NO. III, 45 STAT. 1232, APPROVED 54 STAT. 231,
EFFECTIVE JUNE 30, 1940, AS A CONSOLIDATION OF THE DIVISION OF
MARKETING AND MARKETING AGREEMENTS OF THE AGRICULTURAL ADJUSTMENT
ADMINISTRATION, AND THE FEDERAL SURPLUS COMMODITIES CORPORATION.  THE
SURPLUS COMMODITIES CORPORATION WAS INCORPORATED ON OCTOBER 4, 1933,
UNDER THE NAME OF THE FEDERAL SURPLUS RELIEF CORPORATION.  ITS
EXISTENCE AS "AN AGENCY OF THE UNITED STATES UNDER THE DIRECTION OF THE
SECRETARY OF AGRICULTURE" WAS CONTINUED BY ACTS OF CONGRESS, 50 STAT.
323; 52 STAT. 38.  THE MEMBERS OF THE CORPORATION ARE THE SECRETARY OF
AGRICULTURE, THE ADMINISTRATOR OF THE AGRICULTURAL ADJUSTMENT
ADMINISTRATION, AND THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION. 

AS SUCCESSOR TO THE CORPORATION THE SURPLUS MARKETING ADMINISTRATION
EXERCISES THE AUTHORITY GIVEN BY SEC. 32 OF THE AGRICULTURAL ADJUSTMENT
ACT OF 1935, 7 U.S.C. SEC. 612C, TO USE 30% OF ANNUAL GROSS CUSTOMS
RECEIPTS TO ENCOURAGE THE EXPORTATION, AND THE DOMESTIC CONSUMPTION BY
PERSONS IN LOW INCOME GROUPS, OF AGRICULTURAL COMMODITIES, AND TO
REESTABLISH FARMERS' PURCHASING POWER.  AS SUCCESSOR TO THE DIVISION OF
MARKETS AND MARKETING AGREEMENTS, THE ADMINISTRATION IS CHARGED WITH
THE ENFORCEMENT OF THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937. 

FN7  REPORT OF THE PRESIDENT OF THE COMMODITY CREDIT CORPORATION
(1941) 14, 21; WM. J. CECIL (ZONE AGENT, RAISIN PRORATION ZONE NO. 1),
THE 1940 RAISIN PROGRAM, 30 CALIF. DEPT. OF AGRICULTURE BULLETIN 46. 

FN8  SEE ALSO REPORT OF THE PRESIDENT OF THE COMMODITY CREDIT
CORPORATION (1940) 4, 6. 

FN9  THE PRINCIPAL STATISTICAL SOURCES ARE U.S. TARIFF COMMISSION,
GRAPES, RAISINS AND WINES, REPORT NO. 134, SECOND SERIES, ISSUED
PURSUANT TO 19 U.S.C. SEC. 1332, AND THE FOLLOWING PUBLICATIONS OF THE
U.S. DEPARTMENT OF AGRICULTURE:  YEARBOOK OF AGRICULTURE (PUBLISHED
ANNUALLY UNTIL 1936); AGRICULTURAL STATISTICS (PUBLISHED ANNUALLY SINCE
1936); CROPS AND MARKETS (PUBLISHED QUARTERLY); SEASON AVERAGE PRICES
AND VALUE OF PRODUCTION, PRINCIPAL CROPS, 1940 AND 1941(DEC.  18,
1941).  FOR GENERAL DISCUSSIONS OF THE ECONOMIC STATUS OF THE RAISIN
INDUSTRY, SEE GRAPES, RAISINS AND WINES, SUPRA; SHEAR AND GOULD,
ECONOMIC STATUS OF THE GRAPE INDUSTRY, UNIVERSITY OF CALIFORNIA,
AGRICULTURAL EXPERIMENT STATION BULLETIN NO. 429(1927); SHEAR AND HOWE,
FACTORS AFFECTING CALIFORNIA RAISIN SALES AND PRICES, 1922-29, GIANNINI
FOUNDATION OF AGRICULTURAL ECONOMICS, PAPER NO. 20(1931). 

FN10  STUDIES MADE UNDER THE AUSPICES OF THE UNIVERSITY OF CALIFORNIA
INDICATE THAT THE COST OF PRODUCTION OF THOMPSON SEEDLESS RAISINS,
INCLUDING THE GROWERS' LABOR, A MANAGEMENT CHARGE, DEPRECIATION, AND
INTEREST ON INVESTMENT, IS $49.58 PER TON ON A FARM YIELDING TWO TONS
PER ACRE, AND $72.07 PER TON ON A FARM YIELDING ONE TON PER ACRE.  A
TWO-TON YIELD IS DESCRIBED AS "GOOD"; A ONE-TON YIELD AS "USUAL." 
ADAMS, FARM MANAGEMENT CROP MANUAL, UNIVERSITY OF CALIFORNIA SYLLABUS
SERIES NO. 278(1941) 142-5.  ANOTHER STUDENT HAS COMPUTED THE COST OF
PRODUCTION AT $53.96 FOR A TWO-TON PER ACRE YIELD, ABOUT $65 FOR A 1.5
TON YIELD, AND $90 FOR A ONE-TON YIELD.  SHULTIS, STANDARDS OF
PRODUCTION, LABOR, MATERIAL AND OTHER COSTS FOR SELECTED CROPS AND
LIVESTOCK ENTERPRISES, UNIVERSITY OF CALIFORNIA EXTENSION SERVICE
(1938) 13.  FIELD PRICES FOR THOMPSON SEEDLESS RAISINS WERE BELOW
$49.50 IN 1923, 1928, 1932, AND 1938; SINCE 1922 THEY HAVE BEEN AT
$65.00 OR HIGHER IN ONLY 5 YEARS, AND HAVE ONLY ONCE BEEN AS HIGH AS
$72.00.  GRAPES, RAISINS AND WINES, SUPRA, 149. 

FOR PARITY PRICES FOR RAISINS, SEE SUPRA, NOTE 4. 

FN11  FOR DISCUSSION OF PRIVATE EFFORTS WITHIN THE INDUSTRY PRIOR TO
1929 TO REGULATE THE MARKETING OF RAISINS, SEE GRAPES, RAISINS AND
WINES, SUPRA, 153-5. 

FN12  SEE ANNUAL REPORT OF THE FEDERAL FARM BOARD (1930) 18, 73; ID.
(1931) 59-61, 91; GRAPES, RAISINS AND WINES, SUPRA, 62-64; S.W. SHEAR,
THE CALIFORNIA GRAPE CONTROL PLAN, GIANNINI FOUNDATION OF AGRICULTURAL
ECONOMICS, PAPER NO. 22(1931); STOKDYK AND WEST, THE FARM BOARD (1930)
135-9.  LOANS OF $4,500,000 IN 1929 AND $6,755,000 IN 1930 WERE MADE BY
THE FEDERAL FARM BOARD.  SHEAR, SUPRA, STATES THAT THE 1930 PROGRAM,
WHICH PROVIDED FOR THE FORMATION OF A SINGLE MARKETING AGENCY, AND THE
DESTRUCTION OR DIVERSION TO BY-PRODUCTS USE OF SURPLUS RAISINS, "WAS
DESIGNED BY THE FEDERAL FARM BOARD." 

THE FEDERAL FARM BOARD WAS CREATED BY SEC. 2 OF THE AGRICULTURAL
MARKETING ACT OF 1929, 46 STAT. 11, WHICH AUTHORIZED THE BOARD TO MAKE
LOANS TO COOPERATIVE ASSOCIATIONS TO AID IN "THE EFFECTIVE
MERCHANDISING OF AGRICULTURAL COMMODITIES  ...  " (SEC. 7) SO AS TO
ACHIEVE THE STATUTORY OBJECTIVE OF PLACING AGRICULTURE ON A "BASIS OF
ECONOMIC EQUALITY WITH OTHER INDUSTRIES" (SEC. 1). 

FN13  SEE U.S. DEPT. OF AGRICULTURE, AGRICULTURAL ADJUSTMENT IN 1934,
202.  THE MARKETING PROGRAM ADOPTED IS PUBLISHED BY THE AGRICULTURAL
ADJUSTMENT ADMINISTRATION, DEPARTMENT OF AGRICULTURE, AS MARKETING
AGREEMENT SERIES - AGREEMENT NO. 44, LICENSE SERIES - LICENSE NO. 55. 
IT WAS IN EFFECT FROM MAY 29, 1934 TO SEPT. 14, 1935.  THE AGREEMENT
PROVIDED FOR THE CREATION OF A CONTROL BOARD ON WHICH REPRESENTATIVES
OF PACKERS AND GROWERS SHOULD HAVE AN EQUAL VOICE.  SUBJECT TO THE
APPROVAL OF THE SECRETARY OF AGRICULTURE THE CONTROL BOARD COULD FIX
MINIMUM PRICES TO BE PAID GROWERS AND REQUIRE A PERCENTAGE OF THE CROP
TO BE DELIVERED TO THE CONTROL BOARD.  15% OF THE 1934 CROP WAS
REQUIRED TO BE DELIVERED TO THE BOARD, AND PRICES FOR THAT CROP WERE
FIXED AT $60, $65 AND $70 PER TON FOR MUSCAT, SULTANA, AND THOMPSON
SEEDLESS RAISINS RESPECTIVELY. 

FN14  REPORT OF THE PRESIDENT OF THE COMMODITY CREDIT CORPORATION
(1940) 16.  THESE RAISINS WERE ULTIMATELY SOLD TO THE FEDERAL SURPLUS
COMMODITIES CORPORATION FOR RELIEF DISTRIBUTION.  IBID.; REPORT OF THE
FEDERAL SURPLUS COMMODITIES CORPORATION (1938) 16. 

FN15  REPORT OF THE PRESIDENT OF THE COMMODITY CREDIT CORPORATION
(1940) 16; REPORT OF THE ASSOCIATE ADMINISTRATOR OF THE AGRICULTURAL
ADJUSTMENT ADMINISTRATION IN CHARGE OF THE DIVISION OF MARKETING AND
MARKETING AGREEMENTS, AND THE PRESIDENT OF THE FEDERAL SURPLUS
COMMODITIES CORPORATION (1939) 52.  THE FEDERAL LOAN WAS CONDITIONED
UPON THE ADOPTION OF A STATE PRORATION PROGRAM BY WHICH 20% OF THE CROP
WAS DELIVERED INTO A STABILIZATION POOL. 

FN16  CECIL, THE 1940 RAISIN PRORATION PROGRAM, SUPRA, 48; REPORT OF
THE FEDERAL SURPLUS COMMODITIES CORPORATION (1940) 6. 

FN17  THE COMMODITY CREDIT CORPORATION SIMILARLY MADE LOANS ON THE
1937, 1938, AND 1940 CROPS OF DRIED PRUNES, THE LOANS ON THE 1938 AND
1940 CROPS BEING IN AID OF PRORATION PROGRAMS WHICH WERE VERY SIMILAR
TO THOSE ADOPTED FOR RAISINS.  REPORT OF THE PRESIDENT OF THE COMMODITY
CREDIT CORPORATION (1940) 15, 21; ID. (1941) 13-14, 21; REPORT OF THE
SURPLUS MARKETING ADMINISTRATION (1941) 33-4. 

FN18  TWENTY-EIGHT SUCH PROGRAMS AFFECTING MILK, AND NINETEEN
AFFECTING OTHER AGRICULTURAL COMMODITIES, WERE IN EFFECT DURING THE
FISCAL YEAR ENDING JUNE 30, 1941.  REPORT OF THE SURPLUS MARKETING
ADMINISTRATION (1941) PP. 7, 12.  FOR DISCUSSIONS OF THE NATURE AND
PURPOSE OF THESE PROGRAMS, SEE THE ANNUAL REPORTS OF THE AGRICULTURAL
ADJUSTMENT ADMINISTRATION; NOURSE, MARKETING AGREEMENTS UNDER THE
A.A.A. (1935). 
..END :









UNITED STATES V. MILLER, 317 U.S. 369 


NO. 78.  ARGUED NOVEMBER 16, 17, 1942.  - DECIDED JANUARY 4, 1943.  -
125 F.2D 75, REVERSED. 


1.  WHERE, FROM THE DATE OF ITS AUTHORIZATION BY ACT OF CONGRESS, A
FEDERAL RECLAMATION PROJECT INCLUDED THE RELOCATION OF A LINE OF
RAILROAD, AND A PROBABLE ROUTE WAS MARKED OUT OVER CERTAIN LANDS
SUBSEQUENTLY TAKEN IN EMINENT DOMAIN PROCEEDINGS, IT IS PROPER, IN
DETERMINING JUST COMPENSATION, TO EXCLUDE FROM VALUE AS OF THE DATE OF
THE TAKING SUCH INCREASE AS OCCURRED SINCE THE DATE OF THE
AUTHORIZATION OF THE PROJECT AND AS A RESULT THEREOF.  P. 377. 

2.  THE EXCLUSION FROM VALUE, AS OF THE DATE OF THE TAKING, OF ANY
INCREASE WHICH OCCURRED SINCE THE DATE OF THE AUTHORIZATION OF THE
PROJECT AND AS A RESULT THEREOF, IS APPLICABLE ALSO IN THE
DETERMINATION OF SEVERANCE DAMAGE.  P. 379. 

3.  ALTHOUGH THE FEDERAL COURT IN EMINENT DOMAIN PROCEEDINGS IS
REQUIRED BY FEDERAL STATUTES TO FOLLOW THE FORMS AND METHODS OF
PROCEDURE PRESCRIBED BY LOCAL LAW, IT IS NOT BOUND BY THE LOCAL LAW ON
QUESTIONS OF SUBSTANTIVE RIGHT - SUCH AS THE MEASURE OF COMPENSATION -
WHICH ARE GOVERNED BY THE FEDERAL CONSTITUTION.  P. 379. 

4.  THE DISTRICT COURT'S ALLEGED DISREGARD OF THE LOCAL PRACTICE IN
RESPECT TO THE ADMISSION OF OPINION EVIDENCE AS TO VALUE, DID NOT IN
THIS CASE INVOLVE SUBSTANTIAL OR PREJUDICIAL ERROR.  P. 380. 

5.  WHERE, PURSUANT TO THE ACT OF FEBRUARY 26, 1931, THE GOVERNMENT,
IN A PROCEEDING IN EMINENT DOMAIN, FILES A DECLARATION OF TAKING AND
DEPOSITS WITH THE COURT THE AMOUNT OF ESTIMATED COMPENSATION, IT IS
ENTITLED TO RECOVER THE EXCESS OF SUCH AMOUNT OVER THE AMOUNT OF THE
AWARD.  P. 380. 

6.  THE INCLUSION IN A GENERAL JUDGMENT IN CONDEMNATION PROCEEDINGS
OF A JUDGMENT OF RESTITUTION FOR THE AMOUNT BY WHICH THE SUM DEPOSITED
BY THE GOVERNMENT AND PAID TO THE LANDOWNERS EXCEEDED THE AMOUNT
SUBSEQUENTLY AWARDED AS JUST COMPENSATION, DID NOT IN THIS CASE DENY
DUE PROCESS IN VIOLATION OF THE FIFTH AMENDMENT; FOR, UPON DEFENDANTS'
MOTIONS TO SET ASIDE THE JUDGMENTS, THERE WAS FULL OPPORTUNITY FOR A
HEARING.  P. 382. 

UNITED STATES V. MILLER ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 316 U.S. 657, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE GOVERNMENT AGAINST CERTAIN LANDOWNERS IN EMINENT DOMAIN
PROCEEDINGS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS IMPORTANT QUESTIONS RESPECTING STANDARDS FOR
VALUING PROPERTY TAKEN FOR PUBLIC USE.  FOR THIS REASON, AND BECAUSE OF
AN APPARENT CONFLICT WITH ONE OF OUR DECISIONS, WE GRANTED CERTIORARI. 

THE UNITED STATES CONDEMNED A STRIP ACROSS THE RESPONDENTS' LANDS FOR
TRACKS OF THE CENTRAL PACIFIC RAILROAD, RELOCATION OF WHICH WAS
NECESSARY ON ACCOUNT OF THE PROSPECTIVE FLOODING OF THE OLD RIGHT-OF
WAY BY WATERS TO BE IMPOUNDED BY THE CENTRAL VALLEY RECLAMATION PROJECT
IN CALIFORNIA.  FOR MANY YEARS A PROPOSAL TO INITIATE STATE RECLAMATION
WORKS IN THIS VICINITY HAD BEEN BEFORE THE PEOPLE OF THE STATE.  IN
1932 THEY VOTED APPROVAL AND AUTHORIZATION OF THE PROJECT.  IT WAS,
HOWEVER, SUBSEQUENTLY ADOPTED BY THE UNITED STATES AS A FEDERAL
PROJECT. 

APRIL 6, 1934, THE CHIEF OF ENGINEERS OF THE ARMY RECOMMENDED THAT
THE GOVERNMENT CONTRIBUTE TWELVE MILLION DOLLARS TOWARDS THE PROJECT. 
FN1  CONGRESS AUTHORIZED THE APPROPRIATION IN THE FOLLOWING YEAR.  FN2
DECEMBER 22, 1935, THE PRESIDENT APPROVED CONSTRUCTION OF THE ENTIRE
IMPROVEMENT.  IN 1936 CONGRESS APPROPRIATED $6,900,000 FOR IT AND IN
1937 $12,500,000.  FN3  IN AUGUST 1937 THE PROJECT WAS AGAIN AUTHORIZED
BY CONGRESS.  FN4 

IN HIS REPORT FOR THE FISCAL YEAR ENDING JUNE 30, 1937, THE SECRETARY
OF THE INTERIOR STATED THAT SHASTA, CALIFORNIA, HAD BEEN SELECTED FOR
THE SITE OF THE SACRAMENTO RIVER DAM.  ITS CONSTRUCTION INVOLVED
RELOCATION OF SOME THIRTY MILES OF THE LINE OF THE RAILROAD. 

PORTIONS OF RESPONDENTS' LANDS WERE REQUIRED FOR THE RELOCATED RIGHT
OF-WAY.  ALTERNATE ROUTES WERE SURVEYED BY MARCH 1936 AND STAKED AT
INTERVALS OF 100 FEET.  PRIOR TO THE AUTHORIZATION OF THE PROJECT, THE
AREA OF WHICH RESPONDENTS' TRACTS FORM A PART WAS LARGELY UNCLEARED
BRUSH LAND.  IN THE YEARS 1936 AND 1937 CERTAIN PARCELS WERE PURCHASED
WITH THE INTENTION OF SUBDIVIDING THEM AND, IN 1937, SUBDIVISIONS WERE
PLOTTED AND THERE GREW UP A SETTLEMENT KNOWN AS BOOMTOWN, IN WHICH THE
RESPONDENTS' LANDS LIE.  TWO OF THE RESPONDENTS WERE REALTORS
INTERESTED IN DEVELOPING THE NEIGHBORHOOD.  BY DECEMBER 1938 THE TOWN
HAD BEEN BUILT UP FOR BUSINESS AND RESIDENTIAL PURPOSES. 

DECEMBER 14, 1938, THE UNITED STATES FILED IN THE DISTRICT COURT FOR
NORTHERN CALIFORNIA A COMPLAINT IN EMINENT DOMAIN AGAINST THE
RESPONDENTS AND OTHERS WHOSE LANDS WERE NEEDED FOR THE RELOCATION OF
THE RAILROAD.  ON THAT DAY THE GOVERNMENT ALSO FILED A DECLARATION OF
TAKING.  FN5 IN THIS DECLARATION THE ESTIMATE OF JUST COMPENSATION TO
BE PAID FOR A TRACT BELONGING TO THREE OF THE RESPONDENTS AS CO-TENANTS
WAS ESTIMATED AT $2,550, AND THAT SUM WAS DEPOSITED IN COURT.  ON THE
APPLICATION OF THESE OWNERS, THE COURT DIRECTED THE CLERK TO PAY EACH
OF THEM ONE-THIRD OF THE DEPOSIT, OR $850, ON ACCOUNT OF THE
COMPENSATION THEY WERE ENTITLED TO RECEIVE. 

THE ACTION IN EMINENT DOMAIN WAS TRIED TO A JURY.  THE RESPONDENTS
OFFERED OPINION EVIDENCE AS TO THE FAIR MARKET VALUE OF THE TRACTS
INVOLVED AND ALSO AS TO SEVERANCE DAMAGE TO LOTS OF WHICH PORTIONS WERE
TAKEN.  EACH WITNESS WAS ASKED TO STATE HIS OPINION AS TO MARKET VALUE
OF THE LAND TAKEN AS AT DECEMBER 14, 1938, THE DATE OF THE FILING OF
THE COMPLAINT.  GOVERNMENT COUNSEL OBJECTED TO THE FORM OF THE QUESTION
ON THE GROUND THAT, AS THE UNITED STATES WAS DEFINITELY COMMITTED TO
THE PROJECT AUGUST 26, 1937, THE RESPONDENTS WERE NOT ENTITLED TO HAVE
INCLUDED IN AN ESTIMATE OF VALUE, AS OF THE DATE THE LANDS WERE TAKEN,
ANY INCREMENT OF VALUE DUE TO THE GOVERNMENT'S AUTHORIZATION OF, AND
COMMITMENT TO, THE PROJECT.  THE TRIAL COURT SUSTAINED THE OBJECTION
AND REQUIRED THE QUESTION TO BE REFRAMED SO AS TO CALL FOR MARKET VALUE
AT THE DATE OF THE TAKING, EXCLUDING THEREFROM ANY INCREMENT OF VALUE
ACCRUING AFTER AUGUST 26, 1937, DUE TO THE AUTHORIZATION OF THE
PROJECT.  UNDER STRESS OF THE RULING, AND OVER OBJECTION AND EXCEPTION,
QUESTIONS CALLING FOR OPINION EVIDENCE WERE PHRASED TO COMPLY WITH THE
COURT'S DECISION.  THE JURY RENDERED VERDICTS IN FAVOR OF VARIOUS
RESPONDENTS. 

THE THREE RESPONDENTS WHO HAD RECEIVED $850 EACH ON ACCOUNT OF
COMPENSATION WERE AWARDED LESS THAN THE TOTAL PAID THEM.  THE COURT
ENTERED JUDGMENT THAT TITLE TO THE LANDS WAS IN THE UNITED STATES AND
JUDGMENT IN FAVOR OF RESPONDENTS RESPECTIVELY FOR THE AMOUNTS AWARDED
THEM.  JUDGMENT WAS ENTERED AGAINST THE THREE RESPONDENTS AND IN FAVOR
OF THE UNITED STATES FOR THE AMOUNTS THEY HAD RECEIVED IN EXCESS OF THE
VERDICTS WITH INTEREST.  THEY MOVED TO SET ASIDE THE MONEY JUDGMENTS
AGAINST THEM ON THE GROUND THAT THE COURT HAD NO JURISDICTION TO ENTER
THEM.  THE MOTIONS WERE OVERRULED.  ALL OF THE RESPONDENTS APPEALED,
ASSIGNING ERROR TO THE TRIAL JUDGE'S RULING WITH RESPECT TO THE
QUESTIONS TO BE ASKED THE WITNESSES, TO HIS CHARGE WHICH HAD INSTRUCTED
THE JURY THAT, IN ARRIVING AT MARKET VALUE AS OF THE DATE OF TAKING,
THEY SHOULD DISREGARD INCREMENT OF VALUE DUE TO THE INITIATION OF THE
PROJECT  FN6  AND ARISING AFTER AUGUST 26, 1937, AND THREE OF THEM TO
HIS ENTRY OF MONEY JUDGMENTS FOR THE UNITED STATES. 

THE CIRCUIT COURT OF APPEALS REVERSED THE JUDGMENT, HOLDING, BY A
DIVIDED COURT, THAT THE TRIAL JUDGE ERRED IN HIS RULINGS AND IN HIS
CHARGE, AND UNANIMOUSLY THAT THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO AWARD THE UNITED STATES A JUDGMENT FOR AMOUNTS
OVERPAID.  FN7  A MAJORITY OF THE COURT WERE OF OPINION THE WITNESSES
SHOULD HAVE BEEN ASKED TO STATE THE FAIR MARKET VALUE OF THE LANDS AS
OF THE DATE OF TAKING, WITHOUT QUALIFICATION, AND THE JUDGE SHOULD HAVE
CHARGED THAT THIS VALUE MEASURED THE COMPENSATION TO WHICH THE
RESPONDENTS WERE ENTITLED. 

1.  THE FIFTH AMENDMENT OF THE CONSTITUTION PROVIDES THAT PRIVATE
PROPERTY SHALL NOT BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION. 
SUCH COMPENSATION MEANS THE FULL AND PERFECT EQUIVALENT IN MONEY OF THE
PROPERTY TAKEN.  FN8  THE OWNER IS TO BE PUT IN AS GOOD POSITION
PECUNIARILY AS HE WOULD HAVE OCCUPIED IF HIS PROPERTY HAD NOT BEEN
TAKEN.  FN9 

IT IS CONCEIVABLE THAT AN OWNER'S INDEMNITY SHOULD BE MEASURED IN
VARIOUS WAYS DEPENDING UPON THE CIRCUMSTANCES OF EACH CASE AND THAT NO
GENERAL FORMULA SHOULD BE USED FOR THE PURPOSE.  IN AN EFFORT, HOWEVER,
TO FIND SOME PRACTICAL STANDARD, THE COURTS EARLY ADOPTED, AND HAVE
RETAINED, THE CONCEPT OF MARKET VALUE.  THE OWNER HAS BEEN SAID TO BE
ENTITLED TO THE "VALUE,"  FN10  THE "MARKET VALUE,"  FN11  AND THE
"FAIR MARKET VALUE"  FN12  OF WHAT IS TAKEN.  THE TERM "FAIR" HARDLY
ADDS ANYTHING TO THE PHRASE "MARKET VALUE," WHICH DENOTES WHAT "IT
FAIRLY MAY BE BELIEVED THAT A PURCHASER IN FAIR MARKET CONDITIONS WOULD
HAVE GIVEN,"  FN13  OR, MORE CONCISELY, "MARKET VALUE FAIRLY
DETERMINED."  FN14 

RESPONDENTS CORRECTLY SAY THAT VALUE IS TO BE ASCERTAINED AS OF THE
DATE OF TAKING.  FN15  BUT THEY INSIST THAT NO ELEMENT WHICH GOES TO
MAKE UP VALUE AS AT THAT MOMENT IS TO BE DISCARDED OR ELIMINATED.  WE
THINK THE PROPOSITION IS TOO BROADLY STATED.  WHERE, FOR ANY REASON,
PROPERTY HAS NO MARKET, RESORT MUST BE HAD TO OTHER DATA TO ASCERTAIN
ITS VALUE; FN16  AND, EVEN IN THE ORDINARY CASE, ASSESSMENT OF MARKET
VALUE INVOLVES THE USE OF ASSUMPTIONS, WHICH MAKE IT UNLIKELY THAT THE
APPRAISAL WILL REFLECT TRUE VALUE WITH NICETY.  IT IS USUALLY SAID THAT
MARKET VALUE IS WHAT A WILLING BUYER WOULD PAY IN CASH TO A WILLING
SELLER.  WHERE THE PROPERTY TAKEN, AND THAT IN ITS VICINITY, HAS NOT IN
FACT BEEN SOLD WITHIN RECENT TIMES, OR IN SIGNIFICANT AMOUNTS, THE
APPLICATION OF THIS CONCEPT INVOLVES, AT BEST, A GUESS BY INFORMED
PERSONS. 

AGAIN, STRICT ADHERENCE TO THE CRITERION OF MARKET VALUE MAY INVOLVE
INCLUSION OF ELEMENTS WHICH, THOUGH THEY AFFECT SUCH VALUE, MUST IN
FAIRNESS BE ELIMINATED IN A CONDEMNATION CASE, AS WHERE THE FORMULA IS
ATTEMPTED TO BE APPLIED AS BETWEEN AN OWNER WHO MAY NOT WANT TO PART
WITH HIS LAND BECAUSE OF ITS SPECIAL ADAPTABILITY TO HIS OWN USE, AND A
TAKER WHO NEEDS THE LAND BECAUSE OF ITS PECULIAR FITNESS FOR THE
TAKER'S PURPOSES.  THESE ELEMENTS MUST BE DISREGARDED BY THE FACT
FINDING BODY IN ARRIVING AT "FAIR" MARKET VALUE. 

SINCE THE OWNER IS TO RECEIVE NO MORE THAN INDEMNITY FOR HIS LOSS,
HIS AWARD CANNOT BE ENHANCED BY ANY GAIN TO THE TAKER.  FN17  THUS,
ALTHOUGH THE MARKET VALUE OF THE PROPERTY IS TO BE FIXED WITH DUE
CONSIDERATION OF ALL ITS AVAILABLE USES,  FN18  ITS SPECIAL VALUE TO
THE CONDEMNOR AS DISTINGUISHED FROM OTHERS WHO MAY OR MAY NOT POSSESS
THE POWER TO CONDEMN, MUST BE EXCLUDED AS AN ELEMENT OF MARKET VALUE. 
FN19  THE DISTRICT JUDGE SO CHARGED THE JURY, AND NO QUESTION IS MADE
AS TO THE CORRECTNESS OF THE INSTRUCTION. 

THERE IS, HOWEVER, ANOTHER POSSIBLE ELEMENT OF MARKET VALUE, WHICH IS
THE BONE OF CONTENTION HERE.  SHOULD THE OWNER HAVE THE BENEFIT OF ANY
INCREMENT OF VALUE ADDED TO THE PROPERTY TAKEN BY THE ACTION OF THE
PUBLIC AUTHORITY IN PREVIOUSLY CONDEMNING ADJACENT LANDS?  IF SO, WERE
THE LANDS IN QUESTION SO SITUATE AS TO ENTITLE RESPONDENTS TO THE
BENEFIT OF THIS INCREMENT? 

COURTS HAVE HAD TO ADOPT WORKING RULES IN ORDER TO DO SUBSTANTIAL
JUSTICE IN EMINENT DOMAIN PROCEEDINGS.  ONE OF THESE IS THAT A PARCEL
OF LAND WHICH HAS BEEN USED AND TREATED AS AN ENTITY SHALL BE SO
CONSIDERED IN ASSESSING COMPENSATION FOR THE TAKING OF PART OR ALL OF
IT. 

THIS HAS BEGOTTEN SUBSIDIARY RULES.  IF ONLY A PORTION OF A SINGLE
TRACT IS TAKEN, THE OWNER'S COMPENSATION FOR THAT TAKING INCLUDES ANY
ELEMENT OF VALUE ARISING OUT OF THE RELATION OF THE PART TAKEN TO THE
ENTIRE TRACT.  FN20  SUCH DAMAGE IS OFTEN, THOUGH SOMEWHAT LOOSELY,
SPOKEN OF AS SEVERANCE DAMAGE.  ON THE OTHER HAND, IF THE TAKING HAS IN
FACT BENEFITED THE REMAINDER, THE BENEFIT MAY BE SET OFF AGAINST THE
VALUE OF THE LAND TAKEN.  FN21 

AS RESPECTS OTHER PROPERTY OF THE OWNER CONSISTING OF SEPARATE TRACTS
ADJOINING THAT AFFECTED BY THE TAKING, THE CONSTITUTION HAS NEVER BEEN
CONSTRUED AS REQUIRING PAYMENT OF CONSEQUENTIAL DAMAGES; FN22  AND
UNLESS THE LEGISLATURE SO PROVIDES, AS IT MAY,  FN23  BENEFITS ARE NOT
ASSESSED AGAINST SUCH NEIGHBORING TRACTS FOR INCREASE IN THEIR VALUE. 

IF A DISTINCT TRACT IS CONDEMNED, IN WHOLE OR IN PART, OTHER LANDS IN
THE NEIGHBORHOOD MAY INCREASE IN MARKET VALUE DUE TO THE PROXIMITY OF
THE PUBLIC IMPROVEMENT ERECTED ON THE LAND TAKEN.  SHOULD THE
GOVERNMENT, AT A LATER DATE, DETERMINE TO TAKE THESE OTHER LANDS, IT
MUST PAY THEIR MARKET VALUE AS ENHANCED BY THIS FACTOR OF PROXIMITY. 
IF, HOWEVER, THE PUBLIC PROJECT FROM THE BEGINNING INCLUDED THE TAKING
OF CERTAIN TRACTS BUT ONLY ONE OF THEM IS TAKEN IN THE FIRST INSTANCE,
THE OWNER OF THE OTHER TRACTS SHOULD NOT BE ALLOWED AN INCREASED VALUE
FOR HIS LANDS WHICH ARE ULTIMATELY TO BE TAKEN ANY MORE THAN THE OWNER
OF THE TRACT FIRST CONDEMNED IS ENTITLED TO BE ALLOWED AN INCREASED
MARKET VALUE BECAUSE ADJACENT LANDS NOT IMMEDIATELY TAKEN INCREASED IN
VALUE DUE TO THE PROJECTED IMPROVEMENT. 

THE QUESTION THEN IS WHETHER THE RESPONDENTS' LANDS WERE PROBABLY
WITHIN THE SCOPE OF THE PROJECT FROM THE TIME THE GOVERNMENT WAS
COMMITTED TO IT.  IF THEY WERE NOT, BUT WERE MERELY ADJACENT LANDS, THE
SUBSEQUENT ENLARGEMENT OF THE PROJECT TO INCLUDE THEM OUGHT NOT TO
DEPRIVE THE RESPONDENTS OF THE VALUE ADDED IN THE MEANTIME BY THE
PROXIMITY OF THE IMPROVEMENT.  IF, ON THE OTHER HAND, THEY WERE, THE
GOVERNMENT OUGHT NOT TO PAY ANY INCREASE IN VALUE ARISING FROM THE
KNOWN FACT THAT THE LANDS PROBABLY WOULD BE CONDEMNED.  THE OWNERS
OUGHT NOT TO GAIN BY SPECULATING ON PROBABLE INCREASE IN VALUE DUE TO
THE GOVERNMENT'S ACTIVITIES. 

IN WHICH CATEGORY DO THE LANDS IN QUESTION FALL?  THE PROJECT, FROM
THE DATE OF ITS FINAL AND DEFINITE AUTHORIZATION IN AUGUST 1937,
INCLUDED THE RELOCATION OF THE RAILROAD RIGHT-OF-WAY, AND ONE PROBABLE
ROUTE WAS MARKED OUT OVER THE RESPONDENTS' LANDS.  THIS BEING SO, IT
WAS PROPER TO TELL THE JURY THAT THE RESPONDENTS WERE ENTITLED TO NO
INCREASE IN VALUE ARISING AFTER AUGUST 1937 BECAUSE OF THE LIKELIHOOD
OF THE TAKING OF THEIR PROPERTY.  IF THEIR LANDS WERE PROBABLY TO BE
TAKEN FOR PUBLIC USE, IN ORDER TO COMPLETE THE PROJECT IN ITS ENTIRETY,
ANY INCREASE IN VALUE DUE TO THAT FACT COULD ONLY ARISE FROM
SPECULATION BY THEM, OR BY POSSIBLE PURCHASERS FROM THEM, AS TO WHAT
THE GOVERNMENT WOULD BE COMPELLED TO PAY AS COMPENSATION. 

SHOEMAKER V. UNITED STATES, 147 U.S. 282, IS DIRECTLY IN POINT AND
SUPPORTS THIS VIEW, NOTWITHSTANDING RESPONDENTS' EFFORTS TO DISTINGUISH
THE CASE.  THERE CONGRESS, IN 1890, AUTHORIZED COMMISSIONERS TO
ESTABLISH A PARK ALONG ROCK CREEK IN THE DISTRICT OF COLUMBIA, AND, FOR
THAT PURPOSE, TO SELECT NOT EXCEEDING TWO THOUSAND ACRES OF LAND.  IN
1891 THE COMMISSIONERS PREPARED A MAP OF THE LANDS TO BE ACQUIRED,
WHICH WAS APPROVED BY THE PRESIDENT AS REQUIRED BY THE STATUTE. 
PROCEEDINGS WERE BROUGHT TO CONDEMN CERTAIN TRACTS LYING WITHIN THE
MAPPED AREA.  THE SUPREME COURT OF THE DISTRICT INSTRUCTED THE
APPRAISERS, WHOM THE ACT MADE THE TRIERS OF FACT, THAT THEY "SHALL
RECEIVE NO EVIDENCE TENDING TO PROVE THE PRICES ACTUALLY PAID ON SALES
OF PROPERTY SIMILAR TO THAT INCLUDED IN SAID PARK, AND SO SITUATED AS
TO ADJOIN IT OR TO BE WITHIN ITS IMMEDIATE VICINITY, WHEN SUCH SALES
HAVE TAKEN PLACE SINCE THE PASSAGE OF THE ACT  ...  AUTHORIZING SAID
PARK  ...  "  THE INSTRUCTION WAS APPROVED BY THIS COURT.    THE
MAJORITY OF THE COURT BELOW THOUGHT THE CASE DISTINGUISHABLE IN THE
VIEW THAT THE BOUNDARIES OF THE PARK WERE FIXED BY THE ACT OF CONGRESS
AUTHORIZING THE PROJECT AND, THEREFORE, IT WAS KNOWN WHAT LAND WOULD
LIE INSIDE, AND WHAT OUTSIDE, THE PARK FROM THE BEGINNING, AND THAT
LAND TAKEN FOR THE PARK SHOULD NOT HAVE THE BENEFIT OF AN INCREASE IN
VALUE WHICH ADJOINING LAND MIGHT ENJOY THROUGH ITS PROXIMITY TO THE
IMPROVEMENT.  THIS, OF COURSE, WOULD BE TRUE IF THE LINES OF THE PARK
HAD, IN THE BEGINNING, BEEN FIXED, BECAUSE PROPERTY LYING OUTSIDE THE
BOUNDARIES OF THE PARK, AND NOT INTENDED TO BE TAKEN, WOULD BE
DISSIMILAR FROM THAT LYING WITHIN IT, THE ONE GAINING VALUE BY
PROXIMITY AND THE OTHER GAINING NOTHING FROM THE FACT THAT IT WAS TO BE
TAKEN FROM ITS OWNER.  SUCH WAS THE RULING OF THE COURT IN KERR V.
SOUTH PARK COMMISSIONERS, 117 U.S. 379, 387.  FROM THE CITATION OF THAT
CASE IN THE SHOEMAKER OPINION, THE MAJORITY BELOW INFERRED THAT THE TWO
PRESENTED LIKE FACTS.  BUT, IN THE KERR CASE, THE LINES OF THE PARK HAD
BEEN DETERMINED, WHEREAS, IN THE SHOEMAKER CASE, THE ACT AUTHORIZED THE
APPROPRIATION OF A FIXED ACREAGE WITHIN A LARGER AREA.  CONSEQUENTLY
ANY LAND LYING WITHIN THAT AREA WAS LIKELY TO BE TAKEN.  IF A TRACT
HAPPENED NOT TO BE TAKEN, BECAUSE NOT WITHIN THE LIMITS FINALLY FIXED,
IT MIGHT SHOW AN INCREASE IN READILY REALIZABLE MARKET VALUE BY REASON
OF PROXIMITY TO THE IMPROVEMENT.  IN THE SHOEMAKER CASE, THE COURT
EXCLUDED ANY INCREMENT OF VALUE ARISING OUT OF THE FACT THAT CONGRESS
HAD AUTHORIZED THE LOCATION AND CONDEMNATION OF LAND FOR THE PARK, FOR
THE VERY REASON THAT SHOEMAKER'S PROPERTY LAY IN THE AREA WITHIN WHICH
THE PARK WAS TO BE LAID OUT.  IF, IN THE INSTANT CASE, THE RESPONDENTS'
LANDS WERE, AT THE DATE OF THE AUTHORIZING ACT, CLEARLY WITHIN THE
CONFINES OF THE PROJECT, THE RESPONDENTS WERE ENTITLED TO NO
ENHANCEMENT IN VALUE DUE TO THE FACT THAT THEIR LANDS WOULD BE TAKEN. 
IF THEY WERE WITHIN THE AREA WHERE THEY WERE LIKELY TO BE TAKEN FOR THE
PROJECT, BUT MIGHT NOT BE, THE OWNERS WERE NOT ENTITLED, IF THEY WERE
ULTIMATELY TAKEN, TO AN INCREMENT OF VALUE CALCULATED ON THE THEORY
THAT IF THEY HAD NOT BEEN TAKEN THEY WOULD HAVE BEEN MORE VALUABLE BY
REASON OF THEIR PROXIMITY TO THE LAND TAKEN.  IN SO CHARGING THE JURY
THE TRIAL COURT WAS CORRECT. 

THE RESPONDENTS ASSERT THAT A DIFFERENT RULE SHOULD HAVE BEEN APPLIED
IN RESPECT OF SEVERANCE DAMAGE, EVEN IF THE COURT'S RULINGS WERE
CORRECT AS TO THE VALUATION OF LAND TAKEN.  IN THE LIGHT OF WHAT HAS
ALREADY BEEN SAID, WE FIND NO MERIT IN THE CONTENTION. 

THE RESPONDENTS ALSO SAY THAT, WHATEVER THE CRITERION OF VALUE
ADOPTED BY THE FEDERAL COURTS, CONGRESS HAS ADOPTED THE LOCAL RULE
FOLLOWED IN THE STATE WHERE THE FEDERAL COURT SITS; AND THEY CLAIM THAT
THE CALIFORNIA RULE IS SETTLED THAT FAIR MARKET VALUE AT THE DATE OF
TAKING IS THE STANDARD OF VALUE, WITHOUT ELIMINATION OF ANY INCREMENT
ATTRIBUTABLE TO THE ACTION OF THE TAKER.  WE NEED NOT DETERMINE WHAT IS
THE LOCAL LAW, FOR THE FEDERAL STATUTES  FN24  UPON WHICH RELIANCE IS
PLACED REQUIRE ONLY THAT, IN CONDEMNATION PROCEEDINGS, A FEDERAL COURT
SHALL ADOPT THE FORMS AND METHODS OF PROCEDURE AFFORDED BY THE LAW OF
THE STATE IN WHICH THE COURT SITS.  THEY DO NOT, AND COULD NOT, AFFECT
QUESTIONS OF SUBSTANTIVE RIGHT - SUCH AS THE MEASURE OF COMPENSATION -
GROUNDED UPON THE CONSTITUTION OF THE UNITED STATES.  FN25 

THE RESPONDENTS URGE, FURTHER, THAT THE REVERSAL BY THE CIRCUIT COURT
OF APPEALS IS JUSTIFIED BY THE DISTRICT COURT'S DISREGARD OF THE
PRACTICE OF THE CALIFORNIA COURTS WITH RESPECT TO THE PRODUCTION OF
OPINION EVIDENCE AS TO MARKET VALUE, EVEN THOUGH IT WAS RIGHT AS TO THE
ELEMENTS WHICH MUST BE EXCLUDED.  THEY ALLEGE THAT, IN CALIFORNIA
COURTS, AN OPINION WITNESS MUST STATE HIS VALUATION AS AT THE DATE OF
TAKING AND THE OPPOSING PARTY IS AT LIBERTY, UPON CROSSEXAMINATION, TO
ELICIT THE FACTS ON WHICH THE WITNESS RELIED IN ARRIVING AT THAT
VALUE.  COUNSEL INSIST THAT IF THE GOVERNMENT WAS ENTITLED TO HAVE THE
WITNESSES DISREGARD ANY INCREMENT OF VALUE DUE TO THE GOVERNMENT'S
INTENTION TO CONSTRUCT THE PROJECT, IT COULD HAVE DEVELOPED, ON
CROSSEXAMINATION, HOW FAR THE INCLUSION OF ANY SUCH ELEMENT HAD
AFFECTED THE VALUE STATED.  WE THINK THAT PROBABLY UNDER CALIFORNIA
PROCEDURE THIS WOULD HAVE BEEN THE BETTER AND MORE APPROPRIATE WAY TO
DEVELOP THE BASIS OF THE WITNESSES' OPINIONS.  WE DO NOT FEEL, HOWEVER,
THAT IF THERE WAS A DISREGARD OF THE LOCAL PRACTICE IN THIS ASPECT THE
ERROR IS SUBSTANTIAL OR WORKED INJURY TO THE RESPONDENTS. 

2.  WE THINK THE COURT BELOW ERRED IN HOLDING THE DISTRICT COURT
WITHOUT POWER TO ENTER A JUDGMENT AGAINST THREE OF THE RESPONDENTS TO
WHOM PAYMENTS IN EXCESS OF THE JURY'S VERDICTS HAD BEEN MADE OUT OF THE
FUNDS DEPOSITED WITH THE COURT. 

EXAMINATION OF THE ACT OF FEBRUARY 26, 1931,  FN26  DISCLOSES THAT
THE DECLARATION OF TAKING IS TO BE FILED IN THE PROCEEDING FOR
CONDEMNATION AT ITS INCEPTION OR AT ANY LATER TIME.  WHEN THE
DECLARATION IS FILED THE AMOUNT OF ESTIMATED COMPENSATION IS TO BE
DEPOSITED WITH THE COURT, TO BE PAID AS THE COURT MAY ORDER "FOR OR ON
ACCOUNT" OF THE JUST COMPENSATION TO BE AWARDED THE OWNERS.  THUS THE
ACQUISITION BY THE GOVERNMENT OF TITLE AND IMMEDIATE RIGHT TO
POSSESSION, AND THE DEPOSIT OF THE ESTIMATED COMPENSATION, OCCUR AS
STEPS IN THE MAIN PROCEEDING. 

THE PURPOSE OF THE STATUTE IS TWO-FOLD.  FIRST, TO GIVE THE
GOVERNMENT IMMEDIATE POSSESSION OF THE PROPERTY AND TO RELIEVE IT OF
THE BURDEN OF INTEREST ACCRUING ON THE SUM DEPOSITED FROM THE DATE OF
TAKING TO THE DATE OF JUDGMENT IN THE EMINENT DOMAIN PROCEEDING. 
SECONDLY, TO GIVE THE FORMER OWNER, IF HIS TITLE IS CLEAR, IMMEDIATE
CASH COMPENSATION TO THE EXTENT OF THE GOVERNMENT'S ESTIMATE OF THE
VALUE OF THE PROPERTY.  THE ACT RECOGNIZES THAT THERE MAY BE AN ERROR
IN THE ESTIMATE, AND APPROPRIATELY PROVIDES THAT, IF THE JUDGMENT
ULTIMATELY AWARDED SHALL BE IN EXCESS OF THE AMOUNT DEPOSITED, THE
OWNER SHALL RECOVER THE EXCESS WITH INTEREST.  BUT THERE IS NO
CORRELATIVE PROVISION FOR REPAYMENT OF ANY EXCESS BY THE OWNER TO THE
UNITED STATES.  THE NECESSARY RESULT IS, SO THE RESPONDENTS SAY, THAT
ANY SUM PAID THEM IN EXCESS OF THE JURY'S AWARD IS THEIR PROPERTY,
WHICH THE UNITED STATES MAY NOT RECOVER. 

ALL THE PROVISIONS OF THE ACT TAKEN TOGETHER REQUIRE A CONTRARY
CONCLUSION.  FN27  THE PAYMENT IS OF ESTIMATED COMPENSATION; IT IS
INTENDED AS A PROVISIONAL AND NOT A FINAL SETTLEMENT WITH THE OWNER; IT
IS A PAYMENT "ON ACCOUNT OF" COMPENSATION AND NOT A FINAL SETTLEMENT OF
THE AMOUNT DUE.  TO HOLD OTHERWISE WOULD DEFEAT THE POLICY OF THE
STATUTE AND WORK INJUSTICE; WOULD BE TO ENCOURAGE FEDERAL OFFICIALS TO
UNDERESTIMATE THE VALUE OF THE PROPERTY WITH THE RESULT THAT THE
GOVERNMENT WOULD BE SADDLED WITH INTEREST ON A LARGER SUM FROM DATE OF
TAKING TO FINAL AWARD, AND WOULD BE TO DENY THE OWNER THE IMMEDIATE USE
OF CASH APPROXIMATING THE VALUE OF HIS LAND. 

RESPONDENTS ASSERT THAT WHATEVER THE SUBSTANTIVE RIGHT OF THE UNITED
STATES TO REPAYMENT OF THE SURPLUS, THE DISTRICT COURT IN RENDERING
JUDGMENT AGAINST THEM DEPRIVED THEM OF PROPERTY WITHOUT DUE PROCESS OF
LAW.  WE THINK THE CONTENTION IS UNSOUND. 

THE DISTRICT COURT WAS DEALING WITH MONEY DEPOSITED IN ITS CHANCERY
TO BE DISBURSED UNDER ITS DIRECTION IN CONNECTION WITH AN ACTION
PENDING BEFORE IT.  THE SITUATION IS LIKE THAT IN WHICH LITIGANTS
DEPOSIT MONEY AS SECURITY OR TO AWAIT THE OUTCOME OF LITIGATION. 
NOTWITHSTANDING THE FACT THAT THE COURT RELEASED THE FUND TO THE
RESPONDENTS, THE PARTIES WERE STILL BEFORE IT AND IT DID NOT LOSE
CONTROL OF THE FUND BUT RETAINED JURISDICTION TO DEAL WITH ITS
RETENTION OR REPAYMENT AS JUSTICE MIGHT REQUIRE. 

DENIAL OF NOTICE AND HEARING IS ASSERTED.  BUT, WHILE IT IS TRUE THAT
THE COURT INCLUDED THE JUDGMENT OF RESTITUTION IN ITS GENERAL JUDGMENT
IN THE CONDEMNATION PROCEEDINGS WITHOUT NOTICE TO THE PARTIES OR
HEARING, THE RESPONDENTS MADE MOTIONS TO SET ASIDE THE JUDGMENT AGAINST
THEM, AND THE COURT HEARD AND ACTED ON THE MOTIONS.  THE RESPONDENTS
HAD FULL OPPORTUNITY TO URGE ANY MERITORIOUS REASONS WHY JUDGMENT OF
RESTITUTION SHOULD NOT BE ENTERED AGAINST THEM.  FN28  WE THINK THEY
WERE ENTITLED TO NO MORE. 

STATE COURTS HAVE PROCEEDED AS DID THE COURT BELOW, UNDER ANALOGOUS
STATUTES,  FN29  AND OUR DECISIONS JUSTIFY THE DISTRICT COURT'S
ACTION.  FN30 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  RIVERS AND HARBORS COMMITTEE DOCUMENT NO. 35, 73D CONG., 2D
SESS., P. 5. 

FN2  ACT AUG. 30, 1935, 49 STAT. 1028, 1038. 

FN3  ACT JUNE 22, 1936, 49 STAT. 1597, 1622; ACT AUG. 9, 1937, 50
STAT. 564, 597.  AN ADDITIONAL APPROPRIATION OF $9,000,000 WAS MADE BY
ACT OF MAY 9, 1938, 52 STAT. 291, 324. 

FN4  ACT AUG. 26, 1937, SEC. 2, 50 STAT. 844, 850. 

FN5  PURSUANT TO ACT OF FEB. 26, 1931, 46 STAT. 1421, 40 U.S.C. SECS.
258A-258E. 

FN6  THE MAJORITY OF THE COURT BELOW WERE IN ERROR IN CHARACTERIZING
THE RULING OF THE TRIAL JUDGE.  THEY SAID:  "TO PUT IT SIMPLY, THE
COURT RULED THAT NO EVIDENCE COULD COME IN AS TO SALES OF SIMILAR
PROPERTIES AFTER AUGUST 26, 1937, AND THAT QUALIFIED WITNESSES
TESTIFYING AS TO THE VALUE OF THE LAND ON THE DATE OF THE TAKING MUST
SUBTRACT FROM THIS VALUATION ANY INCREMENT IN VALUE AFTER AUGUST 26,
1937."  125 F.2D 78. 

FN7  125 F.2D 75. 

FN8  MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312, 326. 

FN9  SEABOARD AIR LINE RY. CO. V. UNITED STATES, 261 U.S. 299, 304;
UNITED STATES V. NEW RIVER COLLIERIES CO., 262 U.S. 341, 343. 

FN10  BAUMAN V. ROSS, 167 U.S. 548, 574. 

FN11  BOOM CO. V. PATTERSON, 98 U.S,. 403, 408; UNITED STATES V. NEW
RIVER COLLIERIES CO., SUPRA, 344. 

FN12  ORGEL, "VALUATION UNDER EMINENT DOMAIN" (P. 56):  "THE OWNER
MUST BE COMPENSATED FOR WHAT IS TAKEN FROM HIM, BUT THAT IS DONE WHEN
HE IS PAID ITS FAIR MARKET VALUE FOR ALL AVAILABLE USES AND PURPOSES." 
UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, 81. 

FN13  NEW YORK V. SAGE, 239 U.S. 57, 61. 

FN14  OLSON V. UNITED STATES, 292 U.S. 246, 255. 

FN15  2 LEWIS, EMINENT DOMAIN, 3D ED., SEC. 705; KERR V. SOUTH PARK
COMMISSIONERS, 117 U.S. 379, 386; SHOEMAKER V. UNITED STATES, 147 U.S.
282, 304. 

FN16  SEE MONONGAHELA NAVIGATION CO. V. UNITED STATES, SUPRA, 312,
328-9, 337-8; HANSON LUMBER CO. V. UNITED STATES, 261 U.S. 581, 589. 

FN17  BAUMAN V. ROSS, 167 U.S. 548, 574; BOSTON CHAMBER OF COMMERCE
V. BOSTON, 217 U.S. 189, 195; OLSON V. UNITED STATES, SUPRA, 256. 

FN18  BOOM CO. V. PATTERSON, 98 U.S. 403, 408; UNITED STATES V.
CHANDLER-DUNBAR CO., 229 U.S. 53, 81. 

FN19  UNITED STATES V. CHANDLER-DUNBAR CO., SUPRA, P. 76. 

FN20  LEWIS, EMINENT DOMAIN, 3D ED. 686; NICHOLS, EMINENT DOMAIN, 2D
ED. SEC. 236; BAUMAN V. ROSS, SUPRA, 574; SHARP V. UNITED STATES, 191
U.S. 341, 351-2, 354; CF. UNITED STATES V. WELCH, 217 U.S. 333; UNITED
STATES V. GRIZZARD, 219 U.S. 180; CAMPBELL V. UNITED STATES, 266 U.S.
368. 

FN21  BAUMAN V. ROSS, LOC.  CIT.  CONGRESS HAS PROVIDED THAT IN
TAKINGS SUCH AS THAT HERE INVOLVED, BENEFITS TO THE REMAINDER OF THE
TRACT SHALL BE CONSIDERED BY WAY OF REDUCING THE COMPENSATION FOR WHAT
IS TAKEN.  ACT JULY 18, 1918, C. 155, SEC. 6, 40 STAT. 911, 33 U.S.C.
SEC. 595. 

FN22  SHARP V. UNITED STATES, SUPRA; CAMPBELL V. UNITED STATES,
SUPRA, 371-372. 

FN23  SHOEMAKER V. UNITED STATES, SUPRA, 302. 

FN24  ACT OF AUG. 1, 1888, C. 728, 25 STAT. 357, SECS. 1 AND 2, 40
U.S.C. SECS. 257, 258; ACT OF APR. 24, 1888, C. 194, 25 STAT. 94, 33
U.S.C. SEC. 591. 

FN25  CHAPPELL V. UNITED STATES, 160 U.S. 499, 512-13; BROWN V.
UNITED STATES, 263 U.S. 78, 86. 

FN26  SUPRA, NOTE 5. 

FN27  SEE GARROW V. UNITED STATES, 131 F.2D 724. 

FN28  IN THE JUDGMENT ORIGINALLY ENTERED, THE COURT ADDED INTEREST
FROM THE DATE OF PAYMENT OF THE MONEYS TO THE RESPONDENTS.  AFTER
HEARING ON THE MOTIONS, THE COURT MODIFIED THE JUDGMENT TO IMPOSE
INTEREST ONLY FROM THE DATE OF THE JUDGMENT IN THE EMINENT DOMAIN
PROCEEDING. 

FN29  LEWIS, EMINENT DOMAIN, 3D ED., SEC. 843; CARISH V. COUNTY
HIGHWAY COMMITTEE, 216 WIS. 375, 257 N.W. 11. 

FN30  COMPARE BALTIMORE & OHIO R. CO. V. UNITED STATES, 279 U.S. 781;
NORTHWESTERN FUEL CO. V. BROCK, 139 U.S. 216. 
..END :





















MARSHALL V. PLETZ, 317 U.S. 383 


NO. 93.  ARGUED NOVEMBER 19, 1942.  - DECIDED JANUARY 4, 1943.  - 127
F.2D 104, REVERSED. 


1.  UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, AN
ORDER OF A DEPUTY COMMISSIONER DISMISSING A CLAIM AS BARRED UNDER SEC.
13(A) BECAUSE NOT FILED WITHIN ONE YEAR AFTER THE INJURY, IS NOT
REVIEWABLE BY THE DISTRICT COURT WHERE THE QUESTION IS FACTUAL AND WHEN
THE ORDER IS SUPPORTED BY FINDINGS OF FACT WHICH, IN TURN, ARE
SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 388. 

2.  A TENDER OF COMPENSATION BY THE INSURANCE CARRIER TO AN INJURED
EMPLOYEE, KEPT GOOD TO WITHIN LESS THAN A YEAR OF THE FILING OF THE
EMPLOYEE'S CLAIM, IS NOT THE EQUIVALENT OF A PAYMENT WITHIN THE MEANING
OF THE EXCEPTION IN SEC. 13(A) OF THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT, WHICH PROVIDES "THAT IF PAYMENT OF
COMPENSATION HAS BEEN MADE WITHOUT AN AWARD ON ACCOUNT OF SUCH INJURY
...  A CLAIM MAY BE FILED WITHIN ONE YEAR AFTER THE DATE OF THE LAST
PAYMENT."  P. 388. 

3.  THE FURNISHING OF MEDICAL CARE TO AN INJURED EMPLOYEE UP TO A
TIME WITHIN ONE YEAR OF THE PRESENTATION OF HIS CLAIM UNDER THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT IS NOT "PAYMENT OF
COMPENSATION" WITHIN THE EXCEPTION IN SEC. 13(A) OF THE ACT.  P. 389. 

4.  THE TERMS "PAYMENT" AND "COMPENSATION" USED IN SEC. 13(A) OF THE
ACT REFER TO THE PERIODIC MONEY PAYMENTS TO BE MADE BY THE EMPLOYER. 
P. 390. 

5.  A GROUND FOR SUPPORTING THE JUDGMENT BELOW MAY BE CONSIDERED BY
THIS COURT THOUGH RAISED HERE FOR THE FIRST TIME.  P. 390. 

MARSHALL, DEPUTY COMMISSIONER, U.S. EMPLOYEES' COMPENSATION
COMMISSION, ET AL. V. PLETZ. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 607, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT WHICH SET ASIDE THE ORDER MADE BY A DEPUTY
COMMISSIONER UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE IMPORTANCE OF QUESTIONS PRESENTED IN THIS CASE IN THE
ADMINISTRATION OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT,  FN1  AS WELL AS A CONFLICT OF DECISIONS,  FN2  IMPELLED US TO
GRANT CERTIORARI. 

THE RESPONDENT, A LONGSHOREMAN AND MARITIME WORKER EMPLOYED BY THE
PETITIONER MCCORMICK STEAMSHIP COMPANY IN LOADING A STEAMSHIP, WAS
INJURED NOVEMBER 12, 1935.  HE FILED A CLAIM BEFORE THE PETITIONER
MARSHALL, A DEPUTY COMMISSIONER, APRIL 20, 1937.  THE PETITIONER
FIREMAN'S FUND INSURANCE COMPANY, WHICH INSURED THE EMPLOYER AGAINST
LIABILITY ARISING UNDER THE ACT, APPEARED AT THE FIRST HEARING SET BY
THE DEPUTY COMMISSIONER AND OBJECTED THAT THE CLAIM WAS UNTIMELY
FILED.  FN3  THE RESPONDENT ASSERTED THAT THE INSURER HAD, BY CONDUCT
AND NEGOTIATIONS WITH HIM, WAIVED THE RIGHT TO OBJECT TO THE CLAIM ON
THE GROUND STATED.  AFTER HEARING WITNESSES THE DEPUTY COMMISSIONER
MADE FINDINGS OF FACT ON WHICH HE BASED ULTIMATE FINDINGS THAT THE
CLAIM WAS NOT FILED WITHIN ONE YEAR AFTER THE INJURY AND THAT THE
RESPONDENT HAD NOT BEEN MISLED OR OVERREACHED BY THE EMPLOYER OR THE
INSURANCE CARRIER, AND DISMISSED THE CLAIM. 

THE RESPONDENT FILED HIS BILL IN THE DISTRICT COURT, PRAYING THAT THE
ORDER BE SET ASIDE AS "NOT IN ACCORDANCE WITH LAW."  FN4  A MOTION TO
DISMISS WAS FILED AND, AFTER HEARING, THE COURT REMANDED THE CASE TO
THE DEPUTY COMMISSIONER WITH INSTRUCTIONS TO MAKE FINDINGS OF FACT UPON
ALL THE ISSUES INVOLVED AND WITH LEAVE TO CONSIDER ALL THE EVIDENCE
ALREADY TAKEN AND ANY OTHER FURTHER EVIDENCE WHICH MIGHT BE OFFERED AS
A BASIS FOR SUCH FINDINGS.  FURTHER EVIDENCE WAS TAKEN, THE DEPUTY
COMMISSIONER MADE DETAILED FINDINGS OF FACT, AND AGAIN CONCLUDED THAT
NEITHER THE EMPLOYER NOR THE INSURANCE CARRIER HAD MISLED THE
RESPONDENT AND THAT NEITHER THE CARRIER NOR THE EMPLOYER HAD WAIVED, OR
ESTOPPED THEMSELVES TO RELY UPON, THE LIMITATION SET BY THE STATUTE. 
THEREUPON THE RESPONDENT SUPPLEMENTED HIS BILL AND THE PETITIONERS
MOVED TO DISMISS.  THE COURT HEARD THE CASE UPON THE RECORD CERTIFIED
BY THE DEPUTY COMMISSIONER, BUT UPON THAT RECORD MADE ITS OWN
INDEPENDENT FINDINGS OF FACT.  ITS CONCLUSIONS, BASED ON ITS FINDINGS,
WERE THAT THE INSURANCE CARRIER WAS ESTOPPED TO ASSERT THAT THE CLAIM
WAS NOT TIMELY FILED AND HAD WAIVED ANY DEFENSE ON THAT GROUND.  THE
COURT SET ASIDE THE ORDERS OF THE DEPUTY COMMISSIONER AND DIRECTED HIM
TO ENTER A FURTHER ORDER REJECTING THE OBJECTIONS TO THE CLAIM AND
HOLDING IT TO BE IN ALL RESPECTS VALID, AND TO PROCEED TO ASCERTAIN THE
AMOUNT OF COMPENSATION DUE THE RESPONDENT. 

THE INSURANCE CARRIER, THE EMPLOYER, AND THE DEPUTY COMMISSIONER
APPEALED TO THE CIRCUIT COURT OF APPEALS.  THAT COURT AFFIRMED THE
DECISION OF THE DISTRICT COURT, ONE JUDGE DISSENTING.  FN5 

ON THE DAY OF HIS INJURY RESPONDENT WAS SENT TO A HOSPITAL BY THE
EMPLOYER.  HE REMAINED THERE UNTIL ABOUT CHRISTMAS 1935.  A
REPRESENTATIVE OF THE INSURER CALLED ON HIM THERE, RECEIVED A STATEMENT
OF HIS INJURY, AND, WITHIN THE TIME REQUIRED BY THE STATUTE, TENDERED
HIM A CHECK FOR THE FIRST INSTALLMENT OF COMPENSATION DUE HIM,
CALCULATED ACCORDING TO HIS WEEKLY EARNINGS AS NEARLY AS THE SAME COULD
BE ASCERTAINED FROM EMPLOYMENT RECORDS.  RESPONDENT REFUSED THE CHECK
ON THE GROUND THAT IT WAS NOT FOR AS MUCH AS HIS EARNINGS JUSTIFIED. 
IT WAS EXPLAINED TO HIM THAT ANY DEFICIENCY COULD BE ADJUSTED AS SOON
AS THE INSURER OR HE COULD ASCERTAIN THE FACTS MORE ACCURATELY.  AFTER
LEAVING THE HOSPITAL, RESPONDENT CALLED ON THE ATTORNEY OF THE INSURER,
WAS AGAIN TENDERED PAYMENT OF COMPENSATION, AND AGAIN REFUSED IT ON THE
GROUND THAT IT WAS INADEQUATE.  AT THAT TIME THE INSURER HAD SOME
SUPPLEMENTARY INFORMATION AND, AS A RESULT, ADVISED RESPONDENT THAT IT
WAS READY TO PAY HIM COMPENSATION AT A RATE SLIGHTLY IN EXCESS OF THAT
ORIGINALLY OFFERED. 

AFTER REFUSING COMPENSATION, THE RESPONDENT CONSULTED AN ATTORNEY WHO
ADVISED HIM THAT HE HAD A CAUSE OF ACTION AGAINST HIS EMPLOYER FOR
DAMAGES, NOTWITHSTANDING THE PROVISIONS OF THE COMPENSATION ACT.  HE
SUBSEQUENTLY TOLD THE INSURER'S ATTORNEY THAT HE HAD BEEN SO ADVISED. 

THE RESPONDENT'S DISABILITY NECESSITATED A RETURN TO THE HOSPITAL IN
FEBRUARY 1936.  WHILE THERE, HIS PRESENT COUNSEL SAW HIM, ADVISED HIM
THAT HE HAD NO VALID CLAIMS AGAINST ANY THIRD PARTY OR HIS EMPLOYER,
AND THAT HE OUGHT TO TAKE COMPENSATION.  ON LEAVING THE HOSPITAL,
RESPONDENT CONTINUED TO RECEIVE MEDICAL AID WHICH WAS FURNISHED BY THE
INSURER, AS WAS ALL MEDICAL CARE THERETOFORE. 

RESPONDENT REPEATEDLY CALLED UPON THE INSURER'S ATTORNEY, WHO
CONSISTENTLY ADVISED HIM THAT HE OUGHT TO ACCEPT COMPENSATION.  THERE
IS DISPUTE AS TO WHO BROACHED THE SUBJECT OF A LUMP SUM SETTLEMENT IN
THESE CONVERSATIONS.  RESPONDENT SAYS THE ATTORNEY DID.  THE LATTER
INSISTS THAT THE RESPONDENT DEMANDED SUCH A SETTLEMENT; THAT HE
EXPLAINED THAT NO SUCH SETTLEMENT COULD BE MADE UNDER THE STATUTE UNTIL
ALL DISABILITY HAD TERMINATED AND THE CONSENT OF THE DEPUTY
COMMISSIONER HAD BEEN SECURED.  IT SEEMS TO BE AGREED THAT THE
RESPONDENT REPEATEDLY SAID HE WANTED A LUMP SUM SETTLEMENT WITH MEDICAL
CARE FOR THE INDEFINITE FUTURE, AND IT APPEARS THAT THE ATTORNEY
INSISTED THAT NO SUCH SETTLEMENT COULD BE MADE. 

SOMETIME IN THE SUMMER OF 1936 THE RESPONDENT AGAIN DISCUSSED HIS
CASE WITH HIS PRESENT COUNSEL AND WAS AGAIN ADVISED THAT HE SHOULD
ACCEPT COMPENSATION.  THERE IS CREDIBLE EVIDENCE THAT THE RESPONDENT
CALLED ON THE DEPUTY COMMISSIONER WITHIN A YEAR OF HIS INJURY, WAS
INFORMED THAT IF THE AMOUNT OF COMPENSATION TENDERED HIM WAS NOT THE
PROPER AMOUNT THIS COULD EASILY BE ADJUSTED BY REFERENCE TO THE ROLLS
AT THE EMPLOYMENT OFFICE, AND THAT HE THEN TOLD THE DEPUTY COMMISSIONER
A LAWYER HAD ADVISED HIM HE COULD DISREGARD THE COMPENSATION ACT AND
BRING AN ACTION TO RECOVER FOR HIS INJURIES.  RESPONDENT INSISTED,
HOWEVER, THAT THIS CONVERSATION TOOK PLACE AFTER THE YEAR HAD EXPIRED. 

THE EMPLOYER, OR THE INSURER, PROMPTLY NOTIFIED THE DEPUTY
COMMISSIONER OF THE INJURY, THAT MEDICAL TREATMENT WAS BEING FURNISHED
AND COMPENSATION WOULD BE PAID.  EARLY IN DECEMBER OF 1935 THE INSURER
WROTE THE DEPUTY COMMISSIONER THAT RESPONDENT HAD REFUSED TO ACCEPT
COMPENSATION.  IN ANSWER TO AN INQUIRY OF THE DEPUTY COMMISSIONER, THE
INSURER REPEATED THIS INFORMATION IN A LETTER DATED JANUARY 10, 1936. 
THERE WAS NO FURTHER CORRESPONDENCE IN THE MATTER UNTIL NOVEMBER 5,
1936, WHEN THE DEPUTY COMMISSIONER INQUIRED REGARDING THE STATUS OF THE
CASE AND WAS ADVISED BY THE INSURER'S ATTORNEY THAT THE RESPONDENT
STILL CLAIMED A DISABILITY, THE EXISTENCE OF WHICH THE ATTORNEY
DOUBTED, BUT THAT RESPONDENT WAS RECEIVING MEDICAL CARE, AND SEEMED
MORE INTERESTED IN A LUMP SUM SETTLEMENT AND PERPETUAL MEDICAL CARE
THAN IN RECEIVING COMPENSATION. 

THERE SEEMS TO BE NO DOUBT THAT RESPONDENT AND INSURER'S ATTORNEY
TALKED REPEATEDLY ABOUT THE RESPONDENT'S PHYSICAL CONDITION AND THE
DISPOSITION OF HIS CASE.  THERE WOULD SEEM TO BE LITTLE DOUBT ON THE
EVIDENCE THAT HE WAS REPEATEDLY TENDERED COMPENSATION AND REFUSED IT. 

THESE ARE THE FACTS IN BROAD OUTLINE.  IT IS UNNECESSARY TO RECITE
THE EVIDENCE IN DETAIL.  WHAT HAS BEEN SAID INDICATES THAT ISSUES OF
FACT WERE PRESENTED AND THAT THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT
THE FINDINGS OF THE DEPUTY COMMISSIONER. 

FIRST.  THE FINDINGS OF THE DEPUTY COMMISSIONER SUPPORTED HIS ORDER. 
THE DISTRICT COURT COULD NOT HAVE SET ASIDE THE ORDER WITHOUT RETRYING
THE ISSUES OF FACT AND MAKING NEW AND INDEPENDENT FINDINGS BASED UPON
ITS OWN APPRAISAL OF THE EVIDENCE.  BUT, UNDER THE OVERWHELMING WEIGHT
OF AUTHORITY IN THIS AND IN THE LOWER FEDERAL COURTS, THE STATUTE
GRANTED NO POWER TO THE DISTRICT COURT TO TRY THESE ISSUES DE NOVO. 
FN6 

SECOND.  THE CIRCUIT COURT OF APPEALS, IN AFFIRMING THE DISTRICT
COURT'S JUDGMENT, DID NOT RELY UPON THAT COURT'S RESOLUTION OF THE
ISSUES OF FACT RAISED BEFORE THE DEPUTY COMMISSIONER.  IT BASED ITS
DECISION ON A MATTER OF LAW.  IN THE LIGHT OF THE UNCONTRADICTED FACT
THAT THE INSURANCE CARRIER HAD TENDERED COMPENSATION AND HAD KEPT ITS
TENDER GOOD DOWN TO WITHIN LESS THAN A YEAR BEFORE THE FILING OF
RESPONDENT'S CLAIM, THE MAJORITY OF THE COURT CONCLUDED THAT A TENDER
OF COMPENSATION WAS THE EQUIVALENT OF PAYMENT OF COMPENSATION WITHOUT
AN AWARD WITHIN THE INTENT AND MEANING OF SEC. 13(A) OF THE STATUTE. 
FN7  IT FOUND SUPPORT FOR ITS VIEW IN THE PROVISIONS OF SEC. 14 OF THE
ACT,  FN8  WHICH REQUIRE AN EMPLOYER OR INSURER WHO DENIES LIABILITY TO
FILE WITH THE DEPUTY COMMISSIONER A NOTICE OF CONTROVERSY SO AS TO
BRING ON THE QUESTION OF LIABILITY FOR DECISION. 

WE THINK THIS CONSTRUCTION OF THE ACT INADMISSIBLE.  TENDER IS NOT
PAYMENT.  THE INSURER AT NO TIME DENIED LIABILITY BUT CONTINUOUSLY
ADMITTED IT AND EXPRESSED ITS DESIRE TO PAY COMPENSATION.  LAYING
ASIDE, AS THE CIRCUIT COURT OF APPEALS PROPERLY DID, QUESTIONS OF
WAIVER AND ESTOPPEL, THERE WAS NOTHING TO PREVENT THE RESPONDENT'S
FILING HIS CLAIM AS THE ACT CONTEMPLATES  FN9  IF THE INSURER NEGLECTED
TO PAY COMPENSATION.  IF HE REFUSED TO ACCEPT PAYMENT AND REFRAINED
FROM FILING A CLAIM, WHETHER BECAUSE HE BELIEVED HE HAD A CAUSE OF
ACTION AGAINST A THIRD PARTY OR AGAINST HIS EMPLOYER, OR FOR ANY OTHER
REASON, HE WAS NONE THE LESS BOUND TO PRESENT HIS CLAIM WITHIN THE TIME
FIXED BY THE STATUTE.  THE FACT THAT THE INSURER WAS WILLING TO PAY
COMPENSATION, WHICH HE REFUSED, DOES NOT BRING HIM WITHIN THE EXCEPTION
STATED IN SEC. 13(A). 

THIRD.  AT THE ARGUMENT AT OUR BAR IT WAS SUGGESTED THAT THE JUDGMENT
BELOW MIGHT BE SUSTAINED ON ANOTHER GROUND, NAMELY, THAT THE FURNISHING
OF MEDICAL CARE TO THE RESPONDENT UP TO A TIME WELL WITHIN A YEAR OF
THE PRESENTATION OF HIS CLAIM WAS PAYMENT OF COMPENSATION WITHIN THE
MEANING OF SEC. 13(A).  ON THIS THEORY IT WAS URGED THAT THE ONE YEAR
PERIOD WITHIN WHICH A CLAIM MUST BE FILED WOULD RUN FROM THE DATE OF
THE LAST RENDITION OF MEDICAL CARE. 

AT THE INSISTENCE OF RESPONDENT'S COUNSEL, THE DEPUTY COMMISSIONER
TOOK AN OPPOSITE VIEW.  WHILE HE DENIED COMPENSATION IN THE FORM OF
MONEY PAYMENTS TO THE RESPONDENT, HE ORDERED THE CONTINUANCE OF MEDICAL
CARE.  THIS WAS UPON THE THEORY THAT THE ACT TREATS THE EMPLOYER'S
OBLIGATIONS TO PAY COMPENSATION AND TO RENDER MEDICAL AID AS
INDEPENDENT. 

ALTHOUGH THE POINT IS RAISED FOR THE FIRST TIME IN THIS COURT, IF WE
FIND IT MERITORIOUS WE MAY CONSIDER IT AS SUPPORTING THE JUDGMENT
BELOW.  FN10  WE HOLD, HOWEVER, THAT THE FURNISHING OF MEDICAL AID IS
NOT THE "PAYMENT OF COMPENSATION" MENTIONED IN SEC. 13(A).  SECTION 2
OF THE ACT FN11  IS DEVOTED TO DEFINITIONS, ONE OF WHICH IS:  "(12)
'COMPENSATION' MEANS THE MONEY ALLOWANCE PAYABLE TO AN EMPLOYEE OR TO
HIS DEPENDENTS AS PROVIDED FOR IN THIS CHAPTER, AND INCLUDES FUNERAL
BENEFITS PROVIDED THEREIN." 

FIRST SEVEN DAYS OF THE DISABILITY, EXCEPT THE BENEFITS PROVIDED FOR IN
SEC. 7 OF THIS CHAPTER."  THE BENEFITS COVERED IN SEC. 7 ARE THE
MEDICAL SERVICES WHICH THE EMPLOYER IS BOUND TO FURNISH, BUT THAT
TO MEDICAL TREATMENT, THE DEPUTY COMMISSIONER MAY, BY ORDER, "SUSPEND
THE PAYMENT OF FURTHER COMPENSATION DURING SUCH TIME AS SUCH REFUSAL
CONTINUES, AND NO COMPENSATION SHALL BE PAID AT ANY TIME DURING THE
PERIOD OF SUCH SUSPENSION, UNLESS THE CIRCUMSTANCES JUSTIFIED THE
REFUSAL."  HERE COMPENSATION IS CONTRASTED WITH MEDICAL AID. 

DEALS SOLELY WITH MONEY COMPENSATION. 

CHAPTER, THE AVERAGE WEEKLY WAGE OF THE INJURED EMPLOYEE AT THE TIME OF
THE INJURY SHALL BE TAKEN AS THE BASIS UPON WHICH TO COMPUTE
COMPENSATION  ...  " 

OF ITS PROVISIONS HAVE TO DO WITH THE PERIODIC MONEY PAYMENTS TO BE
MADE TO THE INJURED EMPLOYE AND MAKE NO REFERENCE TO MEDICAL CARE. 

UNDER SECS. 7, 8, AND 9."  IT MAY BE ARGUED THAT AS 7 IS THE SECTION
DEALING WITH MEDICAL CARE, CONGRESS MEANT TO INCLUDE SUCH CARE WITHIN
THE TERM "COMPENSATION."  IN THE NORMAL CASE, HOWEVER, THE INSURER
DEFRAYS THE EXPENSE OF MEDICAL CARE BUT DOES NOT PAY THE INJURED
EMPLOYE ANYTHING ON ACCOUNT OF SUCH CARE.  ONLY IF THE EMPLOYER AND THE
INSURER OMIT TO FURNISH SUCH CARE CAN THE EMPLOYE PROCURE IT FOR
HIMSELF AND THEN OBTAIN FROM THE DEPUTY COMMISSIONER AN AWARD TO
REIMBURSE HIM FOR WHAT HE HAS SPENT.    IN THE LIGHT OF ALL THE
PROVISIONS OF THE ACT, WE ARE PERSUADED THAT THE TERMS "PAYMENT" AND
"COMPENSATION" USED IN SEC. 13(A) REFER TO THE PERIODIC MONEY PAYMENTS
TO BE MADE TO THE EMPLOYE. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS OPINION. 
REVERSED. 

FN1  MARCH 4, 1927, C. 509, 44 STAT. 1424, 33 U.S.C. C. 18. 

FN2  FULTON V. HOAGE, 77 F.2D 110. 

FN3  SEC. 13 OF THE ACT (33 U.S.C. 913) PROVIDES:  (A) "THE RIGHT TO
COMPENSATION FOR DISABILITY UNDER THIS CHAPTER SHALL BE BARRED UNLESS A
CLAIM THEREFOR IS FILED WITHIN ONE YEAR AFTER THE INJURY,  ...  EXCEPT
THAT IF PAYMENT OF COMPENSATION HAS BEEN MADE WITHOUT AN AWARD ON
ACCOUNT OF SUCH INJURY  ...  A CLAIM MAY BE FILED WITHIN ONE YEAR AFTER
THE DATE OF THE LAST PAYMENT"; AND (B) THAT THE BAR SHALL NOT BE
EFFECTIVE UNLESS OBJECTION TO THE FAILURE TO FILE IS MADE "AT THE FIRST
HEARING OF SUCH CLAIM IN WHICH ALL PARTIES IN INTEREST ARE GIVEN
REASONABLE NOTICE AND OPPORTUNITY TO BE HEARD."  THERE ARE OTHER
EXCEPTIONS IN PARAGRAPHS (C) AND (D) WHICH ARE HERE IRRELEVANT. 

FN4  AS PERMITTED BY SEC. 21(B) OF THE ACT, 33 U.S.C. 921(B). 

FN5  127 F.2D 104. 

FN6  CROWELL V. BENSON, 285 U.S. 22, 46, 66-72; SOUTH CHICAGO COAL &
DOCK CO. V. BASSETT, 309 U.S. 251, 257.  THE CASES IN THE LOWER COURTS
ARE COLLECTED IN 33 U.S.C.A. SEC. 921, NOTE 3, PP. 216-218. 

FN7  SUPRA, NOTE 3. 

FN8  33 U.S.C. SEC. 914. 

FN9  33 U.S.C. 914(H), 919(A)(C). 

FN10  LANGNES V. GREEN, 282 U.S. 531, 536, AND AUTHORITIES CITED. 

FN11  THE SECTIONS REFERRED TO IN THE FOLLOWING DISCUSSION ARE FOUND
IN 33 U.S.C. UNDER THE SAME SECTION NUMBERS AS ARE USED IN THE ORIGINAL
ACT, EXCEPT THAT EACH IS PREFIXED WITH THE FIGURE "9"; E.G., SECTION 2
APPEARS IN THE CODE AS SECTION 902.  IN THE INTEREST OF BREVITY WE
SHALL REFER TO THEM AS THEY APPEAR IN THE ACT AS IT IS PRINTED AT 44
STAT. 1424. 

MR. JUSTICE BLACK DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE MURPHY CONCUR. 

IT HAS BEEN SAID THAT THE ACT UNDER CONSIDERATION "SHOULD BE
CONSTRUED LIBERALLY IN FURTHERANCE OF THE PURPOSE FOR WHICH  ...
ENACTED AND, IF POSSIBLE, SO AS TO AVOID INCONGRUOUS OR HARSH
RESULTS."  BALTIMORE & PHILADELPHIA STEAMBOAT CO. V. NORTON, 284 U.S.
408, 414.  THE CONSTRUCTION GIVEN THE ACT BY THE COURT BELOW, WHICH I
THINK WAS CORRECT, AVOIDS SUCH A RESULT.  THE RESULT OF THE
CONSTRUCTION HERE IS TO DEPRIVE AN INJURED PERSON OF THE COMPENSATION
WHICH THE LAW INTENDED HE SHOULD HAVE AND WHICH THE INSURANCE COMPANY,
DEFENDANT, HAS ADMITTED IT OWES.  THE ONLY DEFENSE IS A ONE-YEAR
STATUTE OF LIMITATIONS, AND THAT DEFENSE WAS NOT SET UP UNDER
CIRCUMSTANCES THAT SQUARE WITH THE ACT'S PURPOSES.  WHAT ARE THOSE
CIRCUMSTANCES? 

THESE FACTS ARE UNDISPUTED:  NOVEMBER 12, 1935, PLETZ WAS INJURED
WHILE WORKING FOR A STEAMSHIP COMPANY WHICH CARRIED LIABILITY INSURANCE
WITH THE FIREMAN'S FUND INSURANCE CO., ONE OF THE PETITIONERS HERE. 
NOVEMBER 26, 1935, THE INSURANCE COMPANY'S ATTORNEYS REPORTED TO THE
DEPUTY COMMISSIONER ADMINISTERING THE ACT THAT PAYMENTS TO PLETZ HAD
BEGUN AND WOULD CONTINUE UNTIL NOTICE WAS GIVEN THE COMMISSIONER.  THE
INSURANCE COMPANY DID TENDER A CHECK TO PLETZ WHILE HE WAS IN THE
HOSPITAL WHICH HE DECLINED BECAUSE HE THOUGHT IT INSUFFICIENT, AND ON
DECEMBER 4, 1935, THE INSURANCE COMPANY ADVISED THE COMMISSIONER OF THE
REFUSAL.  NEGOTIATIONS BETWEEN PLETZ AND THE INSURANCE COMPANY
CONTINUED THROUGH REPEATED CONVERSATIONS FOR A YEAR AND FIVE MONTHS. 
THE COMPANY LAWYER TESTIFIED THAT "I MADE THE DEFINITE OFFER TO HIM
VERY EARLY IN THE CASE THAT I WOULD PAY HIM HIS COMPENSATION ANY TIME
HE WANTED TO TAKE IT  ...  AND I TOLD HIM THAT I MADE THAT OFFER AND
THAT HE COULD TAKE IT ANY TIME HE WANTED TO.  ...  "  IT IS APPARENT
THAT THE CONTROVERSY THROUGHOUT WAS NOT OVER THE EXISTENCE OF A JUST
CLAIM, BUT OVER ITS SIZE. 

NOVEMBER 5, 1936, WHILE NEGOTIATIONS WERE STILL IN PROGRESS, AND ONLY
SEVEN DAYS BEFORE THE EXPIRATION OF THE YEAR, THE COMMISSIONER WROTE
THE ATTORNEY ASKING ABOUT THE STATUS OF THE CLAIM.  THE ATTORNEY
RESPONDED SIX DAYS BEFORE THE STATUTE IS SAID TO HAVE OPERATED.  HE
GAVE NO INFORMATION THAT PLETZ HAD NEVER ACCEPTED COMPENSATION, AND
REPORTED ONLY THAT HE HAD PUT PLETZ UNDER A DOCTOR'S CARE AND THAT NO
REPORT HAD BEEN RECEIVED FROM THE DOCTOR.  IF THE COMMISSIONER HAD
THOUGHT THAT THE CLAIM WAS CONTROVERTED, HE WOULD HAVE BEEN OBLIGATED
UNDER SEC. 14(H) OF THE ACT TO HOLD HEARINGS AND TAKE ACTION "UPON HIS
OWN INITIATIVE" TO PROTECT THE RIGHTS OF THE PARTIES.  UNDER THAT
SUSPENDED.  INSTEAD, THE INSURANCE COMPANY ATTORNEY, ACCORDING TO HIS
OWN TESTIMONY, CONTINUED TO NEGOTIATE WITH PLETZ UNTIL HIS CLAIM WAS
FINALLY FILED ON APRIL 19, 1936.  THE CLAIM ITSELF WAS FILLED OUT IN
THE COMPANY LAWYER'S OFFICE WITHOUT A HINT OF LIMITATIONS.  THEN, FOR
THE FIRST TIME, THE COMPANY "FILED ITS CONTROVERSIAL" WITH THE
COMMISSIONER AND PLEADED IN IT THE STATUTE OF LIMITATIONS. 

THE COMMISSIONER FOUND IN SUBSTANCE THAT THERE HAD BEEN NO OVER
REACHING OF PLETZ BY THE COMPANY AND THAT THEREFORE THE COMPANY WAS NOT
ESTOPPED FROM SETTING UP THE STATUTE.  ACCEPTING HIS FINDING OF FACTS,
I THINK THAT THE COMMISSIONER'S CONCLUSION WAS BASED ON AN ERRONEOUS
CONCLUSION OF THE LAW CONCERNING ESTOPPEL AND LIMITATIONS, AND THAT THE
CONTINUOUS PROCESS OF NEGOTIATION AND COMMUNICATION BETWEEN THE
COMPANY, PLETZ, AND THE COMMISSIONER, BAR THE DEFENSE MADE HERE. 

IN SCHROEDER V. YOUNG, 161 U.S. 334, 344, THIS COURT SAID: 

"DEFENDANT RELIES MAINLY UPON THE FACT THAT THE STATUTORY PERIOD OF
REDEMPTION WAS ALLOWED TO EXPIRE BEFORE THIS BILL WAS FILED, BUT THE
COURT BELOW FOUND IN THIS CONNECTION THAT BEFORE THE TIME HAD EXPIRED
TO REDEEM THE PROPERTY, THE PLAINTIFF WAS TOLD BY THE DEFENDANT
STEPHENS THAT HE WOULD NOT BE PUSHED, THAT THE STATUTORY TIME TO REDEEM
WOULD NOT BE INSISTED UPON, AND THAT THE PLAINTIFF BELIEVED AND RELIED
UPON SUCH ASSURANCE.  UNDER SUCH CIRCUMSTANCES THE COURTS HAVE HELD
WITH GREAT UNANIMITY THAT THE PURCHASER IS ESTOPPED TO INSIST UPON THE
STATUTORY PERIOD, NOTWITHSTANDING THE ASSURANCES WERE NOT IN WRITING
AND WERE MADE WITHOUT CONSIDERATION, UPON THE GROUND THAT THE DEBTOR
WAS LULLED INTO A FALSE SECURITY." 

HERE, THE INSURANCE COMPANY'S REPRESENTATIVE HAS SWORN, AND HIS
EVIDENCE IS UNDISPUTED, THAT HE PROMISED TO PAY PLETZ "HIS COMPENSATION
ANY TIME HE WANTED TO TAKE IT," A STATEMENT WHICH WAS NEVER WITHDRAWN,
AND WHICH IN CONNECTION WITH THE CONTINUED NEGOTIATIONS FOR A LUMP SUM
SETTLEMENT, EVEN AFTER THE STATUTORY PERIOD HAD EXPIRED, WAS MORE THAN
AN EQUIVALENT OF AN EXPRESS PROMISE NOT TO PLEAD THE STATUTE OF
LIMITATIONS.  IT IS PERHAPS AN UNDERSTATEMENT TO SAY THAT THE COMPANY
ATTORNEY'S CONDUCT WAS A TACIT ENCOURAGEMENT TO PLETZ TO ACT ON THE
ASSUMPTION THAT THE COMPANY WOULD NEVER DISPUTE ITS CONSTANTLY ADMITTED
LIABILITY.  SWAIN V. SEAMENS, 9 WALL.  254, 274.  THE STATEMENT OF THE
SUPREME COURT OF ILLINOIS IS IN HARMONY WITH THE GENERAL RULE OF LAW
THROUGHOUT THE COUNTRY:  "WHERE AN INSURANCE COMPANY LEADS A PARTY TO
DELAY THE BRINGING OF SUIT, OR TO DISMISS A SUIT ALREADY PENDING, BY
HOLDING OUT HOPES OF ADJUSTMENT, OR BY MAKING PROMISES TO PAY, IT IS
ESTOPPED FROM TAKING ADVANTAGE OF SUCH DELAY OR DISMISSAL, BY PLEADING
THE STATUTE OF LIMITATIONS."  RAILWAY CONDUCTORS' BENEFIT ASSN. V.
LOOMIS, 142 ILL. 560, 572, 32 N.E. 424, 427; CF. ENNIS V. PULLMAN
PALACE CAR CO., 165 ILL. 161, 178, 46 N.E. 439; O'HARA V. MURPHY, 196
ILL. 599, 63 N.E. 1081.  SEE ALSO HOWARD V. WEST JERSEY & SEASHORE R.
CO., 102 N.J. EQ. 517, 522, 147 A. 755; BAKER-MATTHEWS MANUFACTURING
CO. V. GRAYLING LUMBER CO., 134 ARK. 351, 354, 355, 203 S.W. 1021;
MCLEARN V. HILL, 276 MASS. 519, 177 N.E. 617.  THESE CASES ILLUSTRATE
THE PRINCIPLE ANNOUNCED BY THIS COURT "THAT WHERE ONE PARTY HAS BY HIS
REPRESENTATIONS OR HIS CONDUCT INDUCED THE OTHER PARTY TO A TRANSACTION
TO GIVE HIM AN ADVANTAGE WHICH IT WOULD BE AGAINST EQUITY AND GOOD
CONSCIENCE FOR HIM TO ASSERT, HE WOULD NOT IN A COURT OF JUSTICE BE
PERMITTED TO AVAIL HIMSELF OF THAT ADVANTAGE."  INSURANCE COMPANY V.
WILKINSON, 13 WALL.  222, 233. 
..END :


















CLYDE-MALLORY LINES V. EGLANTINE, 317 U.S. 395 


NO. 265.  ARGUED NOVEMBER 20, 1942.  - DECIDED JANUARY 4, 1943.  - 127
F.2D 569, AFFIRMED. 


1.  WHERE A LIBEL IN REM IS BROUGHT AGAINST A VESSEL, IN PRIVATE
OWNERSHIP AND OPERATION, TO RECOVER UPON A CAUSE OF ACTION ARISING OUT
OF A COLLISION WHICH OCCURRED WHEN THE VESSEL WAS OWNED AND OPERATED BY
THE GOVERNMENT, AND THE GOVERNMENT APPEARS IN THE SUIT AND ASSUMES
LIABILITY UNDER SEC. 4 OF THE SUITS IN ADMIRALTY ACT, THE TWO-YEAR
LIMITATION PERIOD OF SEC. 5 OF THAT ACT IS APPLICABLE.  P. 397. 

2.  SECTION 18 OF THE MERCHANT MARINE ACT OF 1920, WHICH INCORPORATES
SEC. 9 OF THE SHIPPING ACT OF 1916, PROVIDES THAT GOVERNMENT MERCHANT
VESSELS SHOULD BE "SUBJECT TO ALL LAWS, REGULATIONS AND LIABILITIES
GOVERNING MERCHANT VESSELS," LEAVING THE TIME WITHIN WHICH TO BRING
SUITS FOR THE ENFORCEMENT OF LIENS TO BE DECIDED IN ACCORDANCE WITH THE
GENERAL RULES OF LACHES UNDER ADMIRALTY PRACTICE.  IN A CASE SUCH AS
THE ONE HERE PRESENTED, THE TWO-YEAR BAR OF SEC. 5 OF THE SUITS IN
ADMIRALTY ACT IS NOT AFFECTED BY SEC. 9 OF THE SHIPPING ACT OF 1916 AS
REENACTED, EVEN THOUGH THE REENACTMENT WAS SUBSEQUENT TO THE SUITS IN
ADMIRALTY ACT.  P. 398. 

CLYDE-MALLORY LINES V. THE EGLANTINE ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 609, TO REVIEW THE REVERSAL OF A DECREE IN FAVOR
OF THE PETITIONER, 38 F.SUPP.  658, IN A SUIT BEGUN BY A LIBEL IN REM
AGAINST A VESSEL AND IN WHICH THE UNITED STATES INTERVENED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE LIBEL IN REM BROUGHT BY THE
PETITIONER AGAINST THE STEAMSHIP EGLANTINE IS BARRED BY SEC. 5 OF THE
SUITS IN ADMIRALTY ACT, 41 STAT. 525, WHICH PROVIDES THAT "SUITS
HEREUNDER SHALL BE BROUGHT WITHIN TWO YEARS AFTER THE CAUSE OF ACTION
ARISES." 

ON DECEMBER 21, 1932, WHILE THE EGLANTINE WAS BEING OPERATED BY THE
UNITED STATES AS A MERCHANT VESSEL, IT COLLIDED WITH THE STEAMSHIP
BRAZOS, OWNED BY THE PETITIONER.  FOUR AND ONE-HALF YEARS LATER, AFTER
THE GOVERNMENT HAD SOLD THE EGLANTINE TO A PRIVATE OPERATOR, THE
PETITIONER FILED THIS LIBEL IN REM AGAINST THE VESSEL AND THE MARSHAL
TOOK IT FROM THE PRIVATE OWNER UNDER AN ADMIRALTY WARRANT OF
ATTACHMENT.  ADMIRALTY IMPOSES A LIEN UPON PRIVATELY OWNED VESSELS FOR
DAMAGES INFLICTED BY NEGLIGENT OPERATION AND PROVIDES FOR ENFORCEMENT
BY PROCEEDINGS AGAINST THE VESSELS THEMSELVES.  FN1  IN SEC. 9 OF THE
SHIPPING ACT OF 1916, 39 STAT. 728, CONGRESS PERMITTED ENFORCEMENT OF
SUCH LIENS AGAINST GOVERNMENT MERCHANT VESSELS BY PROVIDING THAT THEY
SHOULD BE "SUBJECT TO ALL LAWS, REGULATIONS AND LIABILITIES GOVERNING
MERCHANT VESSELS" GENERALLY.  THE SHIPPING ACT CONTAINED NO LIMITATION
OF TIME WITHIN WHICH SUCH ACTIONS MUST BE COMMENCED, BUT LEFT THAT
QUESTION TO BE DECIDED IN ACCORDANCE WITH THE GENERAL RULES OF LACHES
UNDER ADMIRALTY PRACTICE.  FN2  THIS CLAUSE WAS CARRIED FORWARD AND
BECAME A PART OF SEC. 18 OF THE MERCHANT MARINE ACT OF 1920.  46 U.S.C.
SEC. 808. 

IT IS THE PETITIONER'S CONTENTION THAT THIS ACTION IN REM WAS
AUTHORIZED AND CONTROLLED BY SEC. 9 AS AMENDED.  THE GOVERNMENT
CONTENDS THAT THE SUITS IN ADMIRALTY ACT WITHDREW THE PREVIOUS 1916
CONGRESSIONAL CONSENT TO IMPOSE AND ENFORCE LIENS AGAINST VESSELS FOR
INJURIES INFLICTED BY GOVERNMENT OPERATION WHETHER THE VESSELS ARE IN
ITS POSSESSION OR THAT OF ITS PURCHASERS.  IN ADDITION, THE GOVERNMENT
ASSERTS THAT THIS PROCEEDING IS ONE UNDER AND CONTROLLED BY SEC. 5 OF
THE SUITS IN ADMIRALTY ACT AND THEREFORE BARRED BECAUSE BROUGHT MORE
THAN TWO YEARS AFTER THE COLLISION.  THE DISTRICT COURT RULED AGAINST
THE GOVERNMENT ON BOTH THESE DEFENSES, UNDER AUTHORITY OF THE BASCOBAL,
295 F. 299.  BUT THE CIRCUIT COURT OF APPEALS DECLINED TO FOLLOW ITS
FORMER RULING IN THE BASCOBAL, HELD SEC. 5 APPLICABLE, AND ACCORDINGLY
REVERSED, 127 F.2D 569.  WE GRANTED CERTIORARI BECAUSE THE QUESTIONS
RAISED ARE IMPORTANT IN THE CONSTRUCTION OF THE SUITS IN ADMIRALTY ACT,
AND ARE IN SOME DOUBT.  CF. THE CADDO, 285 F. 643.  WE THINK THE
LIMITATIONS OF SEC. 5 OF THE SUITS IN ADMIRALTY ACT ARE CONTROLLING,
AND FOR THAT REASON WE FIND IT UNNECESSARY TO CONSIDER THE OTHER
DEFENSE SET UP BY THE GOVERNMENT. 

IN THE LAKE MONROE, 250 U.S. 246, THIS COURT DECIDED THAT SEC. 9 OF
THE SHIPPING ACT OF 1916 DID MAKE GOVERNMENT MERCHANT VESSELS SUBJECT
TO SEIZURE UNDER IN REM PROCEEDINGS.  THIS DECISION HOWEVER PROMPTED
CONGRESS SHORTLY THEREAFTER TO REVIEW AND RECONSIDER THE EFFECT OF THE
BROAD POWERS SEC. 9 HAD GRANTED.  FN3  THE RESULT OF THIS REVIEW WAS
PASSAGE OF THE SUITS IN ADMIRALTY ACT IN WHICH CONGRESS EXPRESSLY
WITHDREW ITS PREVIOUS CONSENT TO HAVE GOVERNMENT VESSELS SUBJECT TO THE
LAWS APPLICABLE TO MERCHANT SHIPS GENERALLY.  SECTION 1 PROVIDED FOR
THEIR IMMUNITY FROM ARREST OR SEIZURE BY JUDICIAL PROCESS IN THE UNITED
STATES OR ITS POSSESSIONS; SEC. 2 AUTHORIZED LIBELS IN PERSONAM
DIRECTLY AGAINST THE UNITED STATES FOR INJURIES INFLICTED BY ITS
GOVERNMENTAL SHIP OPERATIONS.  BUT CONGRESS WENT BEYOND THE CASES OF
LIABILITY FOR SHIPS IN THE POSSESSION OF THE UNITED STATES AND MADE
CAREFUL PROVISION IN SEC. 4 FOR A MANNER OF DETERMINING GOVERNMENTAL
LIABILITY FOR MARITIME TORTS OCCURRING DURING THE PERIOD OF GOVERNMENT
OWNERSHIP SHOULD GOVERNMENT VESSELS BE TRANSFERRED TO PRIVATE OWNERS
BEFORE SUIT WAS BROUGHT.  THAT SECTION GAVE THE GOVERNMENT THE
PRIVILEGE, OF WHICH IT AVAILED ITSELF IN THIS CASE, TO APPEAR AS A
PARTY DEFENDANT AND ASSUME LIABILITY, AND EXPRESSLY PRESCRIBED THAT
"THEREAFTER SUCH CAUSE SHALL PROCEED AGAINST THE UNITED STATES IN
ACCORDANCE WITH THE PROVISIONS OF THIS ACT."  IMMEDIATELY SUBSEQUENT IS
THE "PROVISION OF THIS ACT" HERE IN QUESTION:  "SUITS HEREUNDER SHALL
BE BROUGHT WITHIN TWO YEARS."  THIS IS AS SURELY A PROVISION OF THE ACT
IN ACCORDANCE WITH WHICH THE CASES MUST BE GOVERNED AS IS ANY OTHER
CLAUSE.  THE SUITS IN ADMIRALTY ACT THUS PRESCRIBES A COMPREHENSIVE
PROCEDURAL PATTERN DESIGNED FULLY TO CONTROL THE METHOD BY AND THE TIME
WITHIN WHICH OBLIGATIONS FOR DAMAGES INFLICTED BY GOVERNMENT OPERATION
OF SHIPS MUST BE INSTITUTED AND DETERMINED. 

THERE IS NO QUESTION THAT UNDER THE SUITS IN ADMIRALTY ACT SUITS
AGAINST THE GOVERNMENT FOR MARITIME TORTS COMMITTED BY ITS VESSELS,
WHEN BROUGHT WHILE THE VESSELS ARE STILL IN THE POSSESSION OF THE
GOVERNMENT, ARE SUBJECT TO THE TWO-YEAR LIMITATION PROVISION.  SECTION
4 PROVIDES SO CLOSELY RELATED A METHOD OF PERMITTING THE GOVERNMENT TO
MEET ITS OBLIGATIONS ON A MARITIME TORT WITH ECONOMY AND DISPATCH THAT
WE SHOULD BE SLOW TO CONSTRUE ANY AMBIGUITY IN THE STATUTE TO ESTABLISH
A SEPARATE AND DISTINCT PERIOD OF LIMITATION FOR IT.  THE CONCLUSION IS
INESCAPABLE THAT THERE IS NO PRACTICAL DIFFERENCE BETWEEN SUITS AGAINST
THE GOVERNMENT AS OWNER OF THE VESSEL AND AGAINST THE GOVERNMENT AS THE
PARTY IN INTEREST WHEN IT VOLUNTARILY APPEARS TO DEFEND ITS LATELY SOLD
PROPERTY AGAINST TORT LIABILITY. 

AS HAS BEEN NOTED, SEC. 9 OF THE 1916 ACT WAS INCORPORATED IN THE
1920 MERCHANT MARINE ACT, PASSED THREE MONTHS AFTER THE SUITS IN
ADMIRALTY ACT.  IT HAS BEEN SUGGESTED, ALTHOUGH NOT VIGOROUSLY PRESSED,
THAT EVEN IF THE SUITS IN ADMIRALTY ACT WAS INTENDED TO BAR ACTIONS
SUCH AS THIS, IT WAS MODIFIED BY RE-ENACTMENT OF SEC. 9.  CONGRESS DID
NOT, HOWEVER, IN PASSING THE MERCHANT MARINE ACT, AS IT DID IN PASSAGE
OF THE SUITS IN ADMIRALTY ACT, HAVE ITS ATTENTION FOCUSED ON THIS
PARTICULAR PROBLEM.  RUNNING THROUGH THE MERCHANT MARINE ACT THERE
APPEARS REPEATED MANIFESTATION OF A CONGRESSIONAL PURPOSE TO EXPEDITE
TRANSFER OF GOVERNMENT VESSELS INTO PRIVATE HANDS,  FN4  A PURPOSE
CLEARLY COMPATIBLE WITH THE SUITS IN ADMIRALTY ACT WHICH THROUGH ITS
LIMITATION PROVISIONS CUT OFF LINGERING LIENS.  THERE IS NOTHING
WHATEVER IN THE 1920 MERCHANT MARINE ACT, NOR, SO FAR AS HAS BEEN
POINTED OUT TO US, ANYTHING IN ITS LEGISLATIVE HISTORY, INDICATING THAT
CONGRESS INTENDED TO REPEAL, ALTER, OR AMEND THE SUITS IN ADMIRALTY ACT
IN WHOLE OR IN PART.  THE 1920 RE-ENACTMENT IS NOT MEANINGLESS; IT
RETAINS IN THE LAW THAT PORTION OF THE 1916 STATUTE UNAFFECTED BY THE
SUITS IN ADMIRALTY ACT.  IT REMAINS AN EXPRESSION OF THE BASIC POLICY
OF WAIVER OF IMMUNITY BY THE GOVERNMENT FOR MARITIME TORTS OF THE SORT
WITHIN ITS SCOPE. 

WE HOLD THAT WHEN THE GOVERNMENT VOLUNTARILY APPEARS IN AN ACTION
AUTHORIZED BY SEC. 4 OF THE SUITS IN ADMIRALTY ACT, THE PROCEEDINGS ARE
GOVERNED BY SEC. 5 WITH ITS LIMITATION PROVISIONS.  AFFIRMED. 

FN1  THE JOHN G. STEVENS, 170 U.S. 113, 120. 

FN2  THE KEY CITY, 14 WALL.  653. 

FN3  BLAMBERG BROS. V. UNITED STATES, 260 U.S. 452, 458. 

FN4  41 STAT. 988, SECS. 1, 5, 6, 7, 12, 19
..END :










KIESELBACH V. COMMISSIONER, 317 U.S. 399 


NO. 184.  ARGUED DECEMBER 11, 1942.  - DECIDED JANUARY 4, 1943.  - 127
F.2D 359, AFFIRMED. 


TITLE TO REAL PROPERTY IN THE CITY OF NEW YORK WAS TAKEN BY THE CITY,
TOGETHER WITH THE POSSESSION AND THE RIGHT TO ALL AFTER-ACCRUING RENTS,
BY A PROCEEDING IN CONDEMNATION UNDER SEC. 976 OF THE GREATER NEW YORK
CHARTER.  SEVERAL MONTHS LATER, THE FINAL DECREE AWARDED THE FORMER
OWNERS, AS JUST COMPENSATION, THE VALUE OF THE PROPERTY ON THE DAY OF
TAKING, WITH INTEREST THEREON FROM THAT DATE TILL THE DATE OF PAYMENT. 
HELD THAT THE PART OF THE AWARD DESIGNATED AS "INTEREST," ALTHOUGH IT
WAS PART OF THE "JUST COMPENSATION" THAT MUST BE PAID THE OWNER TO
JUSTIFY THE TAKING, WAS NOT A PART OF THE SALE PRICE OF A CAPITAL ASSET
UNDER SEC. 117(A) OF THE REVENUE ACT OF 1936 AND WAS TAXABLE AS INCOME
UNDER SEC. 22 OF THAT ACT.  P. 403. 

KIESELBACH ET UX. V. COMMISSIONER OF INTERNALREVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 612, TO REVIEW A JUDGMENT WHICH REVERSED A
DECISION OF THE BOARD OF TAX APPEALS, 44 B.T.A. 279, OVERRULING A
DEFICIENCY INCOME TAX ASSESSMENT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT OF CERTIORARI WAS GRANTED LIMITED TO A SINGLE NARROW POINT
IN THE LAW OF INCOME TAXES.  THE SUM IN QUESTION WAS RECEIVED AS PART
OF THE COMPENSATION IN A CONDEMNATION PROCEEDING INSTITUTED BY THE CITY
OF NEW YORK.  PAYMENT WAS MADE SEVERAL YEARS AFTER THE ACTUAL TAKING. 
THE ISSUE CONCERNS THE NATURE OF THAT PORTION OF THE PAYMENT WHICH IS
CALLED "INTEREST" BY THE GREATER NEW YORK CHARTER AND WHICH THE OWNER
MUST RECEIVE, IN ADDITION TO THE VALUE OF THE PROPERTY FIXED AS OF THE
TIME OF THE TAKING, TO PRODUCE, WHEN ACTUALLY PAID, THE FULL EQUIVALENT
OF THAT VALUE.  WAS THIS PORTION A CAPITAL GAIN OR ORDINARY INCOME? 

THE WRIT WAS GRANTED BECAUSE OF CONFLICT UPON THE POINT BETWEEN THIS
CASE BELOW, COMMISSIONER V. KIESELBACH, 127 F.2D 359(C.C.A. 3), AND
SEASIDE IMPROVEMENT CO. V. COMMISSIONER, 105 F.2D 990(C.C.A. 2). 

THE TAXPAYERS OWNED A PIECE OF REALTY IN THE CITY OF NEW YORK.  IN
DECEMBER, 1932, THAT CITY'S BOARD OF ESTIMATE PASSED A RESOLUTION WHICH
DIRECTED THAT UPON JANUARY 3, 1933, THE TITLE IN FEE TO A LARGE PART OF
THE PARCEL WOULD VEST IN THE CITY.  THE CONDEMNATION PROCEEDING, OF
WHICH THE RESOLUTION WAS A PART, WAS PURSUANT TO SEC. 976 OF THE
GREATER NEW YORK CHARTER, WHICH PROVIDES IN PART AS FOLLOWS: 

"UPON THE DATE OF THE ENTRY OF THE ORDER GRANTING THE APPLICATION TO
CONDEMN, OR OF THE FILING OF THE DAMAGE MAP IN THE PROCEEDING, AS THE
CASE MAY BE, OR UPON SUCH SUBSEQUENT DATE AS MAY BE SPECIFIED BY
RESOLUTION OF SAID BOARD, THE CITY OF NEW YORK SHALL BECOME AND BE
SEIZED IN FEE OF OR OF THE EASEMENT, IN, OVER, UPON OR UNDER, THE SAID
REAL PROPERTY DESCRIBED IN THE SAID ORDER OR DAMAGE MAP, AS THE BOARD
OF ESTIMATE AND APPORTIONMENT MAY DETERMINE, THE SAME TO BE HELD,
APPROPRIATED, CONVERTED AND USED TO AND FOR SUCH PURPOSE ACCORDINGLY. 
INTEREST AT THE LEGAL RATE UPON THE SUM OR SUMS TO WHICH THE OWNERS ARE
JUSTLY ENTITLED UPON THE DATE OF THE VESTING OF TITLE IN THE CITY OF
NEW YORK, AS AFORESAID, FROM SAID DATE TO THE DATE OF THE FINAL DECREE
SHALL BE AWARDED BY THE COURT AS PART OF THE COMPENSATION TO WHICH SUCH
OWNERS ARE ENTITLED." 

THE CITY TOOK POSSESSION ON THE DATE NAMED IN THE RESOLUTION AND
RECEIVED ALL RENTS THEREAFTER ACCRUING.  THE SUPREME COURT OF NEW YORK
ENTERED ITS FINAL DECREE IN THE PROCEEDINGS ON MARCH 31, 1937.  IT WAS
FOR $73,246.57 AND WAS STATED TO BE THE JUST COMPENSATION WHICH THE
OWNERS WERE ENTITLED TO RECEIVE.  PAYMENT WAS MADE ON MAY 12, 1937.  IT
HAS BEEN STIPULATED THAT: 

"THE AMOUNT OF SAID PAYMENT WAS COMPUTED BY ADDING TO THE PRINCIPAL
AMOUNT OF $58,000.00, INTEREST THEREON AS PROVIDED BY SECTION 976 OF
THE GREATER NEW YORK CHARTER, IN THE SUM OF $15,246.57, COMPUTED AT THE
RATE OF 6% PER ANNUM FROM JANUARY 3, 1933 TO MAY 12, 1937, OR A TOTAL
OF $73,246.57."  FN1 

WE ACCEPT AS A FACT THAT THE $58,000, PRINCIPAL AMOUNT JUST REFERRED
TO, WAS, AS PETITIONERS ALLEGE, AN AWARD TO THEM.  WE ASSUME IT WAS THE
VALUE ON JANUARY 3, 1933, OF THIS PROPERTY THEN TAKEN BY THE CITY. 

CONTAINS THE GENERAL DEFINITION OF GROSS INCOME.  IT READS AS FOLLOWS: 

"(A)  GENERAL DEFINITION.  - 'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICE, OF WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER.  ..." 

THE TAXPAYERS' BASIS ON THE CONDEMNED PROPERTY WAS AROUND $42,000. 
IN THEIR ORIGINAL RETURN THE DIFFERENCE BETWEEN THE BASIS AND THE TOTAL
SUM RECEIVED WAS TREATED AS CAPITAL GAIN AND ONLY A PERCENTAGE WAS
RETURNED AS INCOME PURSUANT TO SEC. 117.  FN2  THE COMMISSIONER
ASSESSED A DEFICIENCY ON THE PORTION OF THE AWARD COMPUTED AS INTEREST,
ON THE GROUND THAT SUCH PORTION WAS ORDINARY INCOME.  THE BOARD OF TAX
APPEALS REVERSED THE COMMISSIONER AND THE CIRCUIT COURT OF APPEALS, IN
TURN, HELD WITH THE COMMISSIONER.  127 F.2D 359. 

WE AGREE WITH THE COURT OF APPEALS.  THE SUM PAID THESE TAXPAYERS
ABOVE THE AWARD OF $58,000 WAS PAID BECAUSE OF THE FAILURE TO PUT THE
AWARD IN THE TAXPAYERS' HANDS ON THE DAY, JANUARY 3, 1933, WHEN THE
PROPERTY WAS TAKEN.  THIS ADDITIONAL PAYMENT WAS NECESSARY TO GIVE THE
OWNER THE FULL EQUIVALENT OF THE VALUE OF THE PROPERTY AT THE TIME IT
WAS TAKEN.  WHETHER ONE CALLS IT INTEREST ON THE VALUE OR PAYMENTS TO
MEET THE CONSTITUTIONAL REQUIREMENT OF JUST COMPENSATION IS
IMMATERIAL.  IT IS INCOME UNDER SEC. 22, PAID TO THE TAXPAYERS IN LIEU
OF WHAT THEY MIGHT HAVE EARNED ON THE SUM FOUND TO BE THE VALUE OF THE
PROPERTY ON THE DAY THE PROPERTY WAS TAKEN.  IT IS NOT A CAPITAL GAIN
UPON AN ASSET SOLD UNDER SEC. 117.  THE SALE PRICE WAS THE $58,000. 
FN3 

THE PROPERTY WAS TURNED OVER IN JANUARY, 1933, BY THE RESOLUTION. 
THIS WAS THE SALE.  TITLE THEN PASSED.  THE SUBSEQUENT EARNINGS OF THE
PROPERTY WENT TO THE CITY.  THE TRANSACTION WAS AS THOUGH A PURCHASE
MONEY LIEN AT LEGAL INTEREST WAS RETAINED UPON THE PROPERTY.  SUCH
INTEREST WHEN PAID WOULD, OF COURSE, BE ORDINARY INCOME. 

FROM THE PREMISES THAT THE VALUE AT TIME OF THE TAKING PLUS
COMPENSATION FOR DELAY IN PAYMENT EQUALS JUST COMPENSATION, UNITED
STATES V. KLAMATH INDIANS, 304 U.S. 119, 123,  FN4  AND THAT A GOOD
MEASURE OF THE NECESSARY ADDITIONAL AMOUNT IS INTEREST "AT A PROPER
RATE."  SEABOARD AIR LINE RY. CO. V. UNITED STATES, 261 U.S. 299, 306,
PETITIONER CONTENDS THAT AS JUST COMPENSATION REQUIRES THE PAYMENT OF
THESE SUMS FOR DELAY IN SETTLEMENT, THEY ARE A PART OF THE DAMAGES
AWARDED FOR THE PROPERTY.  BUT THESE PAYMENTS ARE INDEMNIFICATION FOR
DELAY, NOT A PART OF THE SALE PRICE.  WHILE WITHOUT THEIR PAYMENT JUST
COMPENSATION WOULD NOT BE RECEIVED BY THE VENDOR, IT DOES NOT FOLLOW
THAT THE ADDITIONAL PAYMENTS ARE A PART OF THE SALE PRICE UNDER SEC.
117(A).  THE JUST COMPENSATION CONSTITUTIONALLY REQUIRED IS NOT THE
SAME THING AS THE SALE PRICE OF A CAPITAL ASSET.  FN5 

IN SEASIDE IMPROVEMENT CO. V. COMMISSIONER, 105 F.2D 990, 994, AN
OPPOSITE CONCLUSION APPARENTLY WAS REACHED BY TREATING THE ADDITIONAL
PAYMENTS AS PART OF THE PURCHASE PRICE AS WELL AS PART OF "JUST
COMPENSATION."  FN6 

PETITIONERS URGE THAT THE ADDITIONAL SUM PAID SHOULD BE CONSTRUED AS
A PART OF THE SALE PRICE, IN ANALOGY TO DECISIONS THAT SUCH SUMS, WHEN
PAID IN CONDEMNATION PROCEEDINGS BY A STATE, ARE NOT INTEREST ENTITLED
TO EXEMPTION UNDER SEC. 22(B)(4), INTERNAL REVENUE CODE, AS "INTEREST
UPON THE OBLIGATIONS OF A STATE."  FN7  THE CASES CITED CONSTRUE THE
QUOTED PHRASE AS DESIGNED TO PROTECT THE STATES' BORROWING POWER.  IN
ANY EVENT, THE QUESTION HERE IS NOT WHETHER THESE SUMS ARE INTEREST. 
THEY MAY NOT BE INTEREST AND YET BE OTHER THAN PART OF THE SALE PRICE. 
FN8  IF NOT INTEREST, THEY MAY BE COMPENSATION FOR THE DELAY IN
PAYMENT. 

OTHER CONTENTIONS ARE MADE BY THE PETITIONERS.  IT IS SAID THAT IN
OTHER SITUATIONS INTEREST ON DELAYED PAYMENTS HAS BEEN TREATED AS PART
OF THE PRINCIPAL RECEIVED AND NOT AS NORMAL INCOME.  FN9 BY ANALOGY IT
IS URGED THAT THE SAME PRINCIPLE BE APPLIED HERE.  THE FIRST THREE
CASES IN THE PRECEDING NOTE INVOLVED PAYMENTS OF AWARDS IN LIQUIDATION
OF CLAIMS AGAINST GERMANY ALLOWED BY THE MIXED CLAIMS COMMISSION.  SEE
SETTLEMENT OF WAR CLAIMS ACT OF 1928, 45 STAT. 254.  AS THE AGGREGATE
PAYMENTS DID NOT EQUAL THE TAXPAYERS' BASIS, THE DECISIONS REFUSED TO
CONSIDER AS INCOME THE PORTIONS DESIGNATED AS INTEREST ON THE GROUND
THAT IN LIQUIDATION THE INVESTMENT FIRST MUST BE RESTORED BEFORE INCOME
IS REALIZED.  KONINKLIJKE HOLLANDISCHE LLOYD V. COMMISSIONER AND
CONSORZIO VENEZIANO ETC. V. COMMISSIONER APPLIED THE RULE THAT PAYMENT
FOR DEFERRED COMPENSATION WAS NOT INTEREST UNDER SEC. 119(A)  FN10  OF
THE REVENUE ACT OF 1932 OR 1928.  THESE DECISIONS OBVIOUSLY ARE NOT IN
POINT ON THE QUESTION WHETHER THE ADDITIONAL PAYMENTS IN THE PRESENT
CASE ARE PART OF THE SALE PRICE OR OTHER INCOME UNDER SEC. 22.  NOR DO
WE FIND PERSUASIVE THE CASES REFUSING TO ALLOW AN INSTALLMENT PURCHASER
AN INTEREST DEDUCTION BECAUSE OF HIS DEFERRED PAYMENTS WHERE THE
PURPOSE WAS AN ARRANGEMENT FOR THE PAYMENT OF THE PURCHASE PRICE.  FN11
IN THE PRESENT CASE, THE PURCHASE PRICE WAS SETTLED AS OF JANUARY 3,
1933, WHEN THE PROPERTY WAS TAKEN OVER.  AFFIRMED. 

FN1  NO QUESTION IS RAISED INVOLVING THE ACCURACY OF THIS
COMPUTATION.  WHILE SEC. 976 REQUIRES INTEREST ONLY TO THE DATE OF THE
DECREE, SEC. 981, GREATER NEW YORK CHARTER, AS AMENDED BY LAWS OF 1932,
C. 391, REQUIRES INTEREST ON THE DECREE.  MATTER OF CITY OF NEW YORK
(CHRYSTIE ST.), 264 N.Y. 319, 190 N.E. 654. 

FN2  SECTION 117 READS AS FOLLOWS: 

"(A)  GENERAL RULE.  - IN THE CASE OF A TAXPAYER, OTHER THAN A
CORPORATION, ONLY THE FOLLOWING PERCENTAGES OF THE GAIN OR LOSS
RECOGNIZED UPON THE SALE OR EXCHANGE OF A CAPITAL ASSET SHALL BE TAKEN
INTO ACCOUNT IN COMPUTING NET INCOME: 

     .     .         .         .         . 

"40 PER CENTUM IF THE CAPITAL ASSET HAS BEEN HELD FOR MORE THAN 5
YEARS BUT NOT FOR MORE THAN 10 YEARS; 

"30 PER CENTUM IF THE CAPITAL ASSET HAS BEEN HELD FOR MORE THAN 10
YEARS. 

"(B)  DEFINITION OF CAPITAL ASSETS.  - FOR THE PURPOSES OF THIS
TITLE, 'CAPITAL ASSETS' MEANS PROPERTY HELD BY THE TAXPAYER (WHETHER OR
NOT CONNECTED WITH HIS TRADE OR BUSINESS).  ..."  49 STAT. 1691. 

FN3  THE INVOLUNTARY CHARACTER OF THE TRANSACTION IS NOT
SIGNIFICANT.  HELVERING V. HAMMEL, 311 U.S. 504, 510. 

NO REVIEW IS SOUGHT OF THE HOLDING THAT TRANSFER OF PROPERTY THROUGH
CONDEMNATION PROCEEDINGS IS A SALE WITHIN THE MEANING OF SEC. 117 OF
THE REVENUE ACT OF 1936.  COMMISSIONER V. KIESELBACH, 127 F.2D 359,
360. 

FN4  SEE ALSO SHOSHONE TRIBE V. UNITED STATES, 299 U.S. 476, 496;
PHELPS V. UNITED STATES, 274 U.S. 341; BROOKS-SCANLON CORP. V. UNITED
STATES, 265 U.S. 106; LIGGETT & MYERS CO. V. UNITED STATES, 274 U.S.
215. 

FN5  THE SAME PRINCIPLE IS APPLICABLE TO THE NEW YORK DECISIONS,
HOLDING THAT INTEREST IS A PART OF THE CONDEMNATION AWARD.  JUST
COMPENSATION REQUIRES SATISFACTION FOR THE DELAY BY PAYMENT OF THE
ADDITIONAL SUMS.  MATTER OF CITY OF NEW YORK (WEST 151ST ST.), 222 N.Y.
370, 372, 118 N.E. 807; MATTER OF MINZESHEIMER, 144 APP. DIV. 576, 579,
129 N.Y.S. 779, AFFIRMED 204 N.Y. 272, 97 N.E. 717; MATTER OF CITY OF
N.Y. (BRONX RIVER PARKWAY), 284 N.Y. 48, 54, 29 N.E.2D 465.  THE
OBLIGATION TO PAY ITS VALUE ARISES WHEN THE PROPERTY IS TAKEN.  TITLE
THEN PASSES.  KAHLEN V. STATE OF NEW YORK, 223 N.Y. 383, 389, 119 N.E.
883.  WOODWARD-BROWN REALTY CO. V. CITY OF NEW YORK, 235 N.Y. 278, 139
N.E. 267, IS NOT TO THE CONTRARY.  IT DEALS WITH THE UNITY OF A RIGHT
OF ACTION ON AN AWARD WITH INTEREST, HOLDING ONLY ONE PROCEEDING IS
AUTHORIZED AGAINST THE CONDEMNOR. 

FN6  "SUCH ADDITIONAL SUMS ARE NOT CONSIDERED NORMAL INTEREST BUT
PART OF THE COMPENSATION AWARDED FOR THE PROPERTY TAKEN."  105 F.2D AT
994. 

FN7  HOLLEY V. UNITED STATES, 124 F.2D 909(C.C.A. 6, 1942); POSSELIUS
V. UNITED STATES, 90 CT. CLS. 519, 31 F.SUPP.  161(1940); WILLIAMS LAND
CO. V. UNITED STATES, 90 CT. CLS. 499, 31 F.SUPP.  154(1940); BALTIMORE
& OHIO R. CO. V. COMMISSIONER, 78 F.2D 460(C.C.A. 4, 1935); U.S. TRUST
CO. OF NEW YORK V. ANDERSON, 65 F.2D 575(C.C.A. 2, 1933). 

FN8  "NOR IS IT QUITE ACCURATE TO SAY THAT INTEREST AS SUCH IS ADDED
TO VALUE AT THE TIME OF THE TAKING IN ORDER TO ARRIVE AT JUST
COMPENSATION SUBSEQUENTLY ASCERTAINED AND PAID."  UNITED STATES V.
KLAMATH INDIANS, 304 U.S. 119, 123. 

FN9  HELVERING V. DRIER, 79 F.2D 501(C.C.A. 4, 1935); COMMISSIONER V.
SPEYER, 77 F.2D 824(C.C.A. 2, 1935); DRIER V. HELVERING, 63 APP. D.C.
283, 72 F.2D 76(1934); CONSORZIO VENEZIANO DI ARMAMENTO E NAVIGAZIONE
V. COMMISSIONER, 21 B.T.A. 984(1930); N.V. KONINKLIJKE HOLLANDISCHE
LLOYD (ROYAL HOLLAND LLOYD) V. COMMISSIONER, 34 B.T.A. 830(1936). 

FN10  THIS SECTION SPECIFIES INTEREST ON INTEREST BEARING OBLIGATIONS
OF RESIDENTS AS ONE OF THE ITEMS OF INCOME FROM SOURCES WITHIN THE
UNITED STATES. 

FN11  HUNDAHL V. COMMISSIONER, 118 F.2D 349(C.C.A.5TH, 1941);
HENRIETTA MILLS V. COMMISSIONER, 52 F.2D 931(C.C.A.4TH, 1931); PRATT
MALLORY CO. V. UNITED STATES, 82 CT. CLS. 292, 12 F.SUPP.  1020(1936);
DANIEL BROTHERS CO. V. COMMISSIONER, 28 F.2D 761(C.C.A.5TH, 1928). 
..END :


















CORYELL V. PHIPPS, 317 U.S. 406 


NO. 246.  ARGUED DECEMBER 15, 1942.  - DECIDED JANUARY 4, 1943.  - 128
F.2D 702, AFFIRMED. 


1.  REVISED STATUTES SEC. 4283 - THE LIMITATION OF LIABILITY PROVISION
- SHOULD BE ADMINISTERED LIBERALLY.  P. 411. 

2. AN INDIVIDUAL OWNER OF A VESSEL WHO SELECTS COMPETENT MEN TO STORE
AND INSPECT IT, AND WHO IS NOT ON NOTICE AS TO THE EXISTENCE OF ANY
DEFECT IN IT, CAN NOT, UPON THE THEORY THAT THE "PRIVITY" AND
"KNOWLEDGE" OF HIS NEGLIGENT AGENTS ARE IMPUTABLE TO HIM, BE DENIED THE
BENEFIT OF THE LIMITATION OF LIABILITY UNDER R.S. SEC. 4283, AS
RESPECTS DAMAGE RESULTING FROM FIRE CAUSED BY AN EXPLOSION ON BOARD
DURING THE PERIOD OF STORAGE.  P. 412. 

CORYELL ET AL. V. PHIPPS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 609, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
DISTRICT COURT IN ADMIRALTY, 39 F.SUPP.  142, PERMITTING LIMITATION OF
LIABILITY IN A SUIT TO RECOVER DAMAGES FOR THE DESTRUCTION OF
PETITIONERS' VESSELS RESULTING FROM FIRE ABOARD A VESSEL OWNED BY ONE
OF THE RESPONDENTS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS INSTITUTED A SUIT IN ADMIRALTY IN THE FEDERAL DISTRICT
COURT TO RECOVER DAMAGES FOR THE DESTRUCTION OF VESSELS OWNED BY THEM
AS A RESULT OF A FIRE WHICH OCCURRED IN JUNE, 1935, WHILE THE VESSELS
WERE AFLOAT AT PILKINGTON'S STORAGE BASIN AT FORT LAUDERDALE, FLORIDA. 
THE FIRE WAS CAUSED BY AN EXPLOSION OF GASOLINE FUMES IN THE ENGINE
ROOM OF THE YACHT SEMINOLE, REGISTERED IN THE NAME OF SEMINOLE BOAT CO.
AND OWNED BY IT.  PRIOR TO 1929 THE SEMINOLE WAS OWNED BY RESPONDENT
PHIPPS AND HIS BROTHER.  AT THAT TIME THEY TRANSFERRED THE YACHT TO THE
SEMINOLE BOAT CO., A DELAWARE CORPORATION, ALL OF THE STOCK OF WHICH
WAS ISSUED TO THE TWO BROTHERS.  AT THE TIME OF THE FIRE, RESPONDENT
PHIPPS STILL OWNED HALF OF THE SHARES OF STOCK, THE OTHER HALF HAVING
BEEN ACQUIRED BY HIS SISTER.  NEITHER SHE NOR PHIPPS WAS AN OFFICER OR
DIRECTOR OF THE COMPANY. 

RESPONDENT PHIPPS WAS SUED ON THE THEORY THAT HE WAS THE OWNER OF THE
YACHT AND OPERATED AND CONTROLLED HER AND THAT THE SEMINOLE BOAT CO.
WAS A DUMMY CORPORATION.  IN HIS ANSWER, PHIPPS SET UP, INTER ALIA, THE
DEFENSE OF LIMITATION OF LIABILITY CONTAINED IN R.S. SEC. 4283, 46
U.S.C. SEC. 183.  FN1  THE DISTRICT COURT FOUND NEGLIGENCE ON THE PART
OF THE SEMINOLE BOAT CO. IT HELD THAT THE CORPORATION WAS NOT A SHAM OR
A FRAUD BUT ADEQUATE TO INSULATE PHIPPS AS A STOCKHOLDER FROM LIABILITY
FOR THIS TORT.  IT WENT ON TO HOLD THAT, EVEN IF THE CORPORATION BE
DISREGARDED, PHIPPS WAS WITHOUT "PRIVITY OR KNOWLEDGE" OF THE EVENTS
WHICH CAUSED THE FIRE AND HENCE COULD LIMIT HIS LIABILITY TO THE VALUE
OF HIS INTEREST IN THE YACHT.  39 F.SUPP.  142.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  128 F.2D 702.  THE CASE IS HERE ON A PETITION FOR A
WRIT OF CERTIORARI WHICH WE GRANTED BECAUSE OF AN ASSERTED CONFLICT, ON
THE POINT OF LIMITATION OF LIABILITY UNDER SEC. 4283, BETWEEN THE
DECISION BELOW AND IN RE NEW YORK DOCK CO., 61 F.2D 777, AND IN RE
GREAT LAKES TRANSIT CORP., 81 F.2D 441. 

THE SOLE QUESTIONS RAISED BY THE PETITION RELATE TO THE LIABILITY OF
PHIPPS.  PETITIONERS RENEW HERE THEIR CONTENTION THAT THE CORPORATE
EXISTENCE OF THE SEMINOLE BOAT CO. SHOULD BE DISREGARDED AND THAT IT
SHOULD BE TREATED AS A MERE DUMMY OR SHAM.  WE NEED NOT RECITE THE
FACTS ON WHICH THAT ARGUMENT RESTS NOR EXPRESS AN OPINION ON IT.  FOR
EVEN IF WE ASSUME, WITHOUT DECIDING, THAT THE CONTENTION IS A VALID ONE
AND THAT PHIPPS SHOULD BE TREATED AS OWNER OF THE YACHT FOR THE
PURPOSES OF THIS LITIGATION, WE NEVERTHELESS CONCLUDE THAT THE COURTS
BELOW WERE CORRECT IN ALLOWING THE LIMITATION OF LIABILITY UNDER SEC.
4283. 

THAT SECTION, AS IT READ AT THE TIME OF THE FIRE,  FN2  PROVIDED AS
WE HAVE STATED THAT THE "LIABILITY OF THE OWNER" MIGHT BE LIMITED TO
THE "AMOUNT OR VALUE OF THE INTEREST OF SUCH OWNER" IN THE VESSEL,
WHERE THE LOSS WAS OCCASIONED OR INCURRED WITHOUT HIS "PRIVITY OR
KNOWLEDGE."  THE DISTRICT COURT FOUND THAT THE PROXIMATE CAUSE OF THE
FIRE WAS THE PRESENCE OF GASOLINE FUMES IN THE ENGINE ROOM, CAUSED BY A
LEAK IN SOME PART OF THE MACHINERY OR EQUIPMENT.  THAT LEAK, IT
CONCLUDED, OCCURRED NOT FROM FAULTY ORIGINAL INSTALLATION OF THE
GASOLINE TANKS BUT WITH THE PASSAGE OF TIME.  THE CIRCUIT COURT OF
APPEALS SUSTAINED THOSE FINDINGS.  IT WAS NOT FOUND BY EITHER OF THE
COURTS BELOW, NOR IS IT CLAIMED, THAT PHIPPS HAD KNOWLEDGE OF THAT
CONDITION.  IT IS URGED, HOWEVER, THAT THE AGENTS OF PHIPPS AND THE
SEMINOLE BOAT CO. SELECTED TO MANAGE AND INSPECT THE YACHT WERE
INCOMPETENT AND NEGLIGENT, THAT THEIR NEGLIGENCE IS ATTRIBUTABLE TO
PHIPPS, AND THAT, IN ANY EVENT, HE COULD NOT ESTABLISH HIS CLAIM FOR
LIMITATION OF LIABILITY WITHOUT SHOWING THAT HE HAD APPOINTED COMPETENT
PERSONS TO MAKE THE INSPECTION.  SEE M'GILL V. MICHIGAN S.S. CO., 144
F. 788; IN RE REICHERT TOWING LINE, 251 F. 214; THE SILVER PALM, 94
F.2D 776.  THE CIRCUIT COURT OF APPEALS FOUND THAT THE VESSEL HAD BEEN
EXAMINED AND PRONOUNCED FIT BY AN EXPERIENCED SHIP SURVEYOR IN
FEBRUARY, 1935, THAT SHE DEVELOPED NO FAULTS IN A CRUISE BETWEEN
FEBRUARY AND APRIL OF THAT YEAR WHEN SHE WAS TURNED OVER TO PILKINGTON
FOR STORAGE, THAT "THE CREW LEFT HER GASOLINE VALVES CLOSED, HER
ELECTRIC SWITCHES OPEN, HER GAS TANKS REGISTERING EMPTY, AND HER BILGES
CLEAN AND FREE OF GASOLINE OR GASOLINE VAPOR," AND THAT "SHE WAS
REPEATEDLY EXAMINED BY COMPETENT MEN BETWEEN APRIL 15 AND JUNE 24,
1935, WHO DISCOVERED NOTHING WRONG WITH HER."  THERE IS EVIDENCE TO
SUPPORT THOSE FINDINGS AND WE WILL NOT DISTURB THEM.  THUS RESPONDENT
HAS SATISFIED THE BURDEN OF PROOF, WHICH IS ON THOSE WHO SEEK THE
BENEFIT OF SEC. 4283, OF ESTABLISHING THE LACK OF PRIVITY OR KNOWLEDGE
(M'GILL V. MICHIGAN S.S. CO., SUPRA; IN RE REICHERT TOWING LINE, SUPRA;
THE SILVER PALM, SUPRA) AND IS ENTITLED TO LIMIT HIS LIABILITY, UNLESS
ANY NEGLECT OF THOSE TO WHOM DUTIES WERE DELEGATED MAY BE ATTRIBUTED TO
HIM FOR PURPOSES OF SEC. 4283. 

PETITIONERS PRESS SEVERAL LINES OF CASES ON US.  WE ARE NOT CONCERNED
HERE, HOWEVER, WITH THE QUESTION OF LIMITATION OF LIABILITY WHERE THE
LOSS WAS OCCASIONED BY THE UNSEAWORTHINESS OF THE VESSEL.  THE
LIMITATIONS ACTS HAVE LONG BEEN HELD NOT TO APPLY WHERE THE LIABILITY
OF THE OWNER RESTS ON HIS PERSONAL CONTRACT.  PENDLETON V. BENNER LINE,
246 U.S. 353; LUCKENBACH V. MCCAHAN SUGAR CO., 248 U.S. 139; CAPITOL
TRANSPORTATION CO. V. CAMBRIA STEEL CO., 249 U.S. 334.  AS STATED BY
CHIEF JUSTICE HUGHES IN AMERICAN CAR & FOUNDRY CO. V. BRASSERT, 289
U.S. 261, 264, "FOR HIS OWN FAULT, NEGLECT AND CONTRACTS THE OWNER
REMAINS LIABLE."  AND THAT EXCEPTION EXTENDS TO AN IMPLIED AS WELL AS
TO AN EXPRESS WARRANTY OF SEAWORTHINESS.  CULLEN FUEL CO. V. HEDGER
CO., 290 U.S. 82.  BUT WHATEVER LIMIT THERE MAY BE TO THAT EXCEPTION
(ID., P. 89; CF. EARLE & STODDART V. ELLERMAN'S WILSON LINE, 287 U.S.
420, ARISING UNDER THE FIRE STATUTE) THOSE CASES ARE NO AUTHORITY FOR
IMPUTING TO THE INDIVIDUAL OWNER THE NEGLECT OF ANOTHER SO AS TO
ESTABLISH ON HIS PART PRIVITY WITHIN THE MEANING OF THE STATUTE. 

PETITIONERS ALSO RELY ON CASES INVOLVING CORPORATE SHIPOWNERS.  IN
THOSE CASES IT IS HELD THAT LIABILITY MAY NOT BE LIMITED UNDER THE
STATUTE WHERE THE NEGLIGENCE IS THAT OF AN EXECUTIVE OFFICER, MANAGER
OR SUPERINTENDENT WHOSE SCOPE OF AUTHORITY INCLUDES SUPERVISION OVER
THE PHASE OF THE BUSINESS OUT OF WHICH THE LOSS OR INJURY OCCURRED. 
SPENCER KELLOGG & SONS V. HICKS, 285 U.S. 502, AND CASES CITED; 3
BENEDICT, ADMIRALTY (6TH ED.)  SEC.  490.  BUT THOSE CASES ARE NO
AUTHORITY FOR HOLDING THAT THE NEGLIGENCE OF A SUBORDINATE MAY BE
IMPUTED TO AN INDIVIDUAL OWNER SO AS TO PLACE HIM IN PRIVITY WITHIN THE
MEANING OF THE STATUTE.  A CORPORATION NECESSARILY ACTS THROUGH HUMAN
BEINGS.  THE PRIVITY OF SOME OF THOSE PERSONS MUST BE THE PRIVITY OF
THE CORPORATION ELSE IT COULD ALWAYS LIMIT ITS LIABILITY.  HENCE THE
SEARCH IN THOSE CASES TO SEE WHERE IN THE MANAGERIAL HIERARCHY THE
FAULT LAY. 

IN THE CASE OF INDIVIDUAL OWNERS, IT HAS BEEN COMMONLY HELD OR
DECLARED THAT PRIVITY AS USED IN THE STATUTE MEANS SOME PERSONAL
PARTICIPATION OF THE OWNER IN THE FAULT OR NEGLIGENCE WHICH CAUSED OR
CONTRIBUTED TO THE LOSS OR INJURY.  THE 84-H, 296 F. 427; WARNKEN V.
MOODY, 22 F.2D 960; FLAT-TOP FUEL CO. V. MARTIN, 85 F.2D 39; AND SEE LA
BOURGOGNE, 210 U.S. 95, 122; RICHARDSON V. HARMON, 222 U.S. 96, 103; 3
BENEDICT, ADMIRALTY (6TH ED.)  SEC.  489.  THAT CONSTRUCTION STEMS FROM
THE WELL SETTLED POLICY TO ADMINISTER THE STATUTE NOT "WITH A TIGHT AND
GRUDGING HAND" (MR. JUSTICE BRADLEY IN PROVIDENCE & NEW YORK S.S. CO.
V. HILL MFG. CO., 109 U.S. 578, 589) BUT "BROADLY AND LIBERALLY" SO AS
"TO ACHIEVE ITS PURPOSE TO ENCOURAGE INVESTMENTS IN SHIPBUILDING AND TO
AFFORD AN OPPORTUNITY FOR THE DETERMINATION OF CLAIMS AGAINST THE
VESSEL AND ITS OWNER."  JUST V. CHAMBERS, 312 U.S. 383, 385.  AND SEE
LARSEN V. NORTHLAND TRANSPORTATION CO., 292 U.S. 20, 24; FLINK V.
PALADINI, 279 U.S. 59, 62; RICHARDSON V. HARMON, SUPRA, P. 103.  SOME
CASES, HOWEVER, HAVE BARRED THE INDIVIDUAL OWNER FROM THE BENEFITS OF
THE STATUTE EVEN THOUGH THE ELEMENT OF PERSONAL PARTICIPATION IN THE
FAULT OR NEGLIGENCE WAS NOT PRESENT.  THUS IT HAS BEEN THOUGHT THAT THE
SCOPE OF AUTHORITY DELEGATED BY AN INDIVIDUAL OWNER TO A SUBORDINATE
MAY BE SO BROAD AS TO JUSTIFY IMPUTING PRIVITY (IN RE NEW YORK DOCK
CO., SUPRA, P. 779) AS WELL AS KNOWLEDGE.  IN RE GREAT LAKES TRANSIT
CORP., SUPRA, P. 444.  WE NEED NOT REACH THOSE QUESTIONS IN THIS CASE. 
PRIVITY, LIKE KNOWLEDGE, TURNS ON THE FACTS OF PARTICULAR CASES.  HERE
TWO COURTS HAVE FOUND THE ABSENCE OF BOTH.  WE ACCEPT CONCURRENT
FINDINGS UPON SUCH MATTERS.  JUST V. CHAMBERS, SUPRA, P. 385.  AND EVEN
WERE WE TO ASSUME WITHOUT DECIDING THAT FOR THE PURPOSES OF SEC. 4283
PRIVITY AS WELL AS KNOWLEDGE OF AN INDIVIDUAL OWNER MAY BE CONSTRUCTIVE
RATHER THAN ACTUAL, IT DOES NOT FOLLOW THAT PHIPPS SHOULD BE BARRED
FROM LIMITING HIS LIABILITY.  ONE WHO SELECTS COMPETENT MEN TO STORE
AND INSPECT A VESSEL AND WHO IS NOT ON NOTICE AS TO THE EXISTENCE OF
ANY DEFECT IN IT CANNOT BE DENIED THE BENEFIT OF THE LIMITATION AS
RESPECTS A LOSS INCURRED BY AN EXPLOSION DURING THE PERIOD OF STORAGE,
UNLESS "PRIVITY" OR "KNOWLEDGE" ARE TO BECOME EMPTY WORDS.  IF SEC.
4283 DOES NOT GIVE PROTECTION TO THE INDIVIDUAL OWNER IN THESE
CIRCUMSTANCES, IT IS DIFFICULT TO IMAGINE WHEN IT WOULD.  AFFIRMED. 

FN1  THAT SECTION, AS IT READ AT THE TIME OF THE FIRE, PROVIDED:
"THE LIABILITY OF THE OWNER OF ANY VESSEL, FOR ANY EMBEZZLEMENT, LOSS,
OR DESTRUCTION, BY ANY PERSON, OF ANY PROPERTY, GOODS, OR MERCHANDISE,
SHIPPED OR PUT ON BOARD OF SUCH VESSEL, OR FOR ANY LOSS, DAMAGE, OR
INJURY BY COLLISION, OR FOR ANY ACT, MATTER, OR THING, LOSS, DAMAGE, OR
FORFEITURE, DONE, OCCASIONED, OR INCURRED, WITHOUT THE PRIVITY, OR
KNOWLEDGE OF SUCH OWNER OR OWNERS, SHALL IN NO CASE EXCEED THE AMOUNT
OR VALUE OF THE INTEREST OF SUCH OWNER IN SUCH VESSEL, AND HER FREIGHT
THEN PENDING." 

FN2  NO QUESTION HAS BEEN RAISED HERE AS RESPECTS THE AMENDMENTS TO
THE SECTION MADE BY THE ACT OF AUGUST 29, 1935, 49 STAT. 960, OR BY THE
ACT OF JUNE 5, 1936, 49 STAT. 1479. 
..END :



















PENDERGAST V. UNITED STATES, 317 U.S. 412 


NO. 183.  ARGUED DECEMBER 14, 15, 1942.  - DECIDED JANUARY 4, 1943.  -
128 F.2D 676, REVERSED. 


1.  REVISED STATUTES SEC. 1044, PROVIDING THAT "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,"
APPLIES TO A PROSECUTION FOR CRIMINAL CONTEMPT.  P. 416. 

2.  THE ACT OF INDUCING A FEDERAL COURT THROUGH MISREPRESENTATIONS BY
ATTORNEYS TO ISSUE DECREES EFFECTUATING A CORRUPT SETTLEMENT OF
LITIGATION, INCLUDING A DISTRIBUTION OF IMPOUNDED FUNDS, IF ASSUMED TO
BE "MISBEHAVIOR" IN THE "PRESENCE" OF THE COURT WITHIN THE MEANING OF
JUD.  CODE SEC. 268, IS A CRIMINAL CONTEMPT AND AN "OFFENSE" AGAINST
THE UNITED STATES WITHIN THE MEANING OF R.S. SEC. 1044.  P. 416. 

3.  THE TIME WHEN THE THREE-YEAR LIMITATION OF R.S. SEC. 1044 BEGINS
TO RUN AGAINST A PROSECUTION FOR A CRIMINAL CONTEMPT UNDER JUD.  CODE
SEC. 268 IS THE TIME WHEN THE ACT OF MISBEHAVIOR IN THE PRESENCE OF THE
COURT WAS COMMITTED; AND, IN A CASE OF ALLEGED CONTEMPT COMMITTED BY
INDUCING THE COURT BY FALSE REPRESENTATIONS TO ORDER A DISTRIBUTION OF
IMPOUNDED FUNDS, EFFECTUATING A FRAUDULENT SCHEME, THE OFFENSE WAS
COMPLETE WHEN THE MISREPRESENTATIONS WERE MADE, AND THE THREE YEARS ARE
COUNTED FROM THAT TIME.  THE BAR OF THE STATUTE CAN NOT BE DEFERRED
UPON THE GROUND THAT THE OFFENSE WAS A CONTINUING ONE AND WAS NOT
COMPLETE UNTIL THE LITIGATION ENDED, OR UNTIL FURTHER ACTS DEHORS WERE
COMMITTED IN THE EXECUTION OF THE SCHEME.  P. 419. 

PENDERGAST V. UNITED STATES.* 

*TOGETHER WITH NO. 186, O'MALLEY V. UNITED STATES, AND NO. 187,
MCCORMACK V. UNITED STATES, ALSO ON WRITS OF CERTIORARI, POST, P. 608,
TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 608, TO REVIEW JUDGMENTS AFFIRMING SENTENCES FOR
CONTEMPT.  FOR OPINIONS OF THE TRIAL COURT, SEE 35 F.SUPP.  593, 39
F.SUPP.  189. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, TOGETHER WITH ONE STREET, NOW DECEASED, CONCEIVED AND
EXECUTED A NEFARIOUS SCHEME IN FRAUD OF THE FEDERAL DISTRICT COURT AND
IN CORRUPTION OF THE ADMINISTRATION OF JUSTICE.  THE SHORT OF IT WAS
THAT PETITIONERS BY FRAUD AND DECEIT AND THROUGH MISREPRESENTATIONS BY
ATTORNEYS INDUCED THE COURT TO ISSUE DECREES EFFECTUATING A CORRUPT
SETTLEMENT OF LITIGATION.  IT HAPPENED THIS WAY: 

SEVERAL INSURANCE COMPANIES DOING BUSINESS IN MISSOURI FILED WITH THE
SUPERINTENDENT OF INSURANCE AN INCREASE IN INSURANCE RATES WHICH THE
SUPERINTENDENT DENIED.  THE INSURANCE COMPANIES FILED OVER 130 SEPARATE
INJUNCTION SUITS AGAINST THE SUPERINTENDENT AND THE ATTORNEY GENERAL IN
THE FEDERAL COURT TO RESTRAIN THE ENFORCEMENT OF CERTAIN STATUTES OF
MISSOURI ON THE GROUND OF UNCONSTITUTIONALITY.  A THREE-JUDGE COURT WAS
CONVENED WHICH GRANTED MOTIONS FOR INTERLOCUTORY INJUNCTIONS ON JULY 2,
1930, WHEREBY THE SUPERINTENDENT AND THE ATTORNEY GENERAL WERE
ENJOINED, PENDING FINAL DECISION, FROM ENFORCING THE MISSOURI STATUTES
ON CONDITION, HOWEVER, THAT THE INSURANCE COMPANIES DEPOSIT THE AMOUNT
OF INCREASE IN RATES WHICH WAS COLLECTED WITH A CUSTODIAN OF THE COURT
TO AWAIT THE FINAL OUTCOME OF THE LITIGATION.  IN SEPTEMBER 1930 A
SPECIAL MASTER WAS APPOINTED, WHO HELD HEARINGS.  DURING THIS TIME THE
PREMIUMS IMPOUNDED BY THE COURT ACCUMULATED, UNTIL BY 1936 THEY
AMOUNTED TO ALMOST $10,000,000. 

THE LURE OF THIS SIZEABLE AMOUNT OF OTHER PEOPLE'S MONEY PLAYED AN
IMPORTANT PART IN THE SCHEME WHICH WAS HATCHED. 

STREET WAS IN CHARGE OF THE RATE LITIGATION FOR THE INSURANCE
COMPANIES.  PENDERGAST WAS A "POLITICAL BOSS."  O'MALLEY WAS THE THEN
SUPERINTENDENT OF INSURANCE.  MCCORMACK WAS AN INSURANCE AGENT.  OF
THESE, ONLY O'MALLEY WAS A PARTY TO THE LITIGATION.  STREET AGREED TO
PAY PENDERGAST A "FEE" OF $750,000 TO USE HIS INFLUENCE OVER O'MALLEY
AND OBTAIN A SETTLEMENT OF THE LITIGATION WHICH WOULD BE SATISFACTORY
TO THE INSURANCE COMPANIES.  O'MALLEY WAS AGREEABLE.  MCCORMACK WAS THE
GO-BETWEEN.  STREET MADE AN INITIAL PAYMENT OF $100,000 IN CURRENCY,
WHICH WAS DIVIDED $55,000 TO PENDERGAST, $22,500 TO O'MALLEY, AND
$22,500 TO MCCORMACK.  THEREAFTER AN AGREEMENT WAS REACHED AND REDUCED
TO WRITING IN FORM OF A MEMORANDUM.  O'MALLEY WOULD APPROVE AS OF JUNE
1, 1930, 80% OF THE INCREASE IN RATES WHICH THE COMPANIES HAD SOUGHT;
THE PARTIES WOULD APPEAR BY THEIR ATTORNEYS AND JOIN IN SEEKING
APPROPRIATE ORDERS FOR DISTRIBUTION OF THE IMPOUNDED MONEY; 20% WAS TO
GO TO THE POLICYHOLDERS, 50% DIRECTLY TO THE INSURANCE COMPANIES, AND
30% TO STREET AND ANOTHER AS TRUSTEES FOR THE INSURANCE COMPANIES.  THE
LATTER WERE TO ACCOUNT TO THE COMPANIES BUT NOT TO THE COURT OR THE
SUPERINTENDENT.  THE MEMORANDUM AGREEMENT WAS NOT DISCLOSED TO THE
COURT.  BUT ON JUNE 18, 1935, THE INSURANCE COMPANIES FILED IN EACH
CASE A MOTION RECITING TERMS OF SETTLEMENT AND PRAYING FOR AN ORDER OF
DISTRIBUTION.  ON THE NEXT DAY THE INSURANCE COMPANIES AND O'MALLEY
FILED STIPULATIONS AGREEING THAT THE COURT SHOULD MAKE THE ORDER OF
DISTRIBUTION.  THEREAFTER ON JUNE 22, 1935, OCTOBER 26, 1935 AND
JANUARY 24, 1936, HEARINGS WERE HELD IN OPEN COURT ON THE MOTIONS, AND
BRIEFS WERE FILED.  COUNSEL, WHO WERE WHOLLY INNOCENT AND ACTING IN
GOOD FAITH, ASSURED THE COURT OF THE HONESTY, FAIRNESS, AND
DESIRABILITY OF THE SETTLEMENT.  ON FEBRUARY 1, 1936, THE COURT, ACTING
IN RELIANCE ON THE REPRESENTATIONS AND WITHOUT A HEARING ON THE MERITS,
ENTERED A DECREE ORDERING DISTRIBUTION OF THE IMPOUNDED FUNDS AS PRAYED
IN THE MOTIONS.  IT ALSO DISMISSED THE BILLS, RESERVING JURISDICTION,
HOWEVER, FOR CERTAIN PURPOSES. 

PETITIONERS THEN PROCEEDED FURTHER WITH THEIR CORRUPT PLAN.  ABOUT
APRIL, 1936, STREET PAID $330,000 IN CURRENCY, OF WHICH PENDERGAST
RECEIVED $250,000, O'MALLEY $40,000 AND MCCORMACK $40,000.  IN THE FALL
OF 1936, PENDERGAST RECEIVED ANOTHER $10,000 IN CASH FROM STREET.  THAT
LEFT $310,000 OF THE $750,000 "FEE" UNPAID.  AND, SO FAR AS APPEARS, IT
WAS NEVER PAID, DUE TO THE UNRAVELING OF FACTS WHICH LED TO AN EXPOSURE
OF THE ENTIRE CORRUPT SCHEME.  FOR ABOUT THAT TIME AN INTERNAL REVENUE
INVESTIGATION OF STREET'S INCOME TAX RETURN DISCLOSED THAT OVER
$400,000 OF THE FUNDS FOR WHICH STREET WAS TO ACCOUNT AS TRUSTEE HAD
BEEN PAID TO UNKNOWN PERSONS.  THIS WAS REPORTED TO THE COURT IN
FEBRUARY 1939.  A GRAND JURY INVESTIGATION FOLLOWED, IN WHICH THE REST
OF THE SORDID STORY WAS UNFOLDED.  SEE UNITED STATES V. PENDERGAST, 28
F.SUPP.  601.  THE DEPARTMENT OF JUSTICE CAUSED PENDERGAST AND O'MALLEY
TO BE INDICTED FOR EVASION OF INCOME TAXES ON THE AMOUNTS OF MONEY SO
RECEIVED.  THEY PLEADED GUILTY AND WERE FINED AND IMPRISONED LATE IN
MAY, 1939.  ID.  ON MAY 29, 1939, O'MALLEY'S SUCCESSOR FILED A MOTION
PRAYING THAT THE DECREES OF FEBRUARY 1, 1936, BE SET ASIDE ON THE BASIS
OF THOSE DISCLOSURES AND THAT THE INSURANCE COMPANIES BE ORDERED TO
RESTORE THE FUNDS DISTRIBUTED TO THEM.  THE COURT ORDERED THE INSURANCE
COMPANIES TO MAKE RESTITUTION; AND THEY DID.  AT THE SAME TIME, THE
COURT ASKED THE DISTRICT ATTORNEY WHETHER CONTEMPT PROCEEDINGS SHOULD
BE FILED.  ABOUT A YEAR PASSED, WHEN THE COURT ON MAY 20, 1940,
REQUESTED THE DISTRICT ATTORNEY TO INSTITUTE CONTEMPT PROCEEDINGS
AGAINST PETITIONERS.  AN INFORMATION WAS FILED JULY 13, 1940.  MOTIONS
TO ABATE AND QUASH WERE OVERRULED.  35 F.SUPP.  593.  THEREAFTER
ANSWERS WERE FILED AND A HEARING HAD.  PETITIONERS WERE ADJUDGED GUILTY
OF CONTEMPT - PENDERGAST AND O'MALLEY BEING SENTENCED TO TWO YEARS'
IMPRISONMENT AND MCCORMACK BEING SENTENCED TO PROBATION FOR TWO YEARS. 
39 F.SUPP.  189.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  128 F.2D
676.  WE GRANTED THE PETITION FOR CERTIORARI BECAUSE OF THE IMPORTANCE
IN THE ADMINISTRATION OF JUSTICE OF THE PROBLEMS RAISED. 

PETITIONERS PRESS SEVERAL OBJECTIONS TO THE JUDGMENT BELOW.  THE
CHIEF OF THESE ARE THAT THE OFFENSE WAS NOT A CONTEMPT UNDER SEC. 268
OF THE JUDICIAL CODE (28 U.S.C. 385) AS CONSTRUED BY NYE V. UNITED
STATES, 313 U.S. 33, AND THAT EVEN THOUGH IT WAS, THE PROSECUTION OF IT
WAS BARRED BY THE THREE YEAR STATUTE OF LIMITATIONS CONTAINED IN SEC.
1044 OF THE REVISED STATUTES, 18 U.S.C. SEC. 582.  WE DO NOT REACH THE
FIRST OF THESE QUESTIONS AND NEED NOT EXPRESS AN OPINION ON IT.  FOR
ALTHOUGH WE ASSUME ARGUENDO THAT THE CIRCUIT COURT OF APPEALS WAS
CORRECT IN HOLDING (128 F.2D P. 683) THAT THE CONDUCT OF PETITIONERS
WAS "MISBEHAVIOR" IN THE "PRESENCE" OF THE COURT, WITHIN THE MEANING OF
SEC. 268 OF THE JUDICIAL CODE, AND THEREFORE PUNISHABLE AS A CONTEMPT,
WE ARE OF THE OPINION THAT THIS PROSECUTION WAS BARRED BY SEC. 1044 OF
THE REVISED STATUTES. 

THAT SECTION PROVIDES:  "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  ...  "  IT WOULD SEEM THAT THE
STATUTE FITS THIS CASE LIKE A GLOVE.  IF THE CONDUCT IN QUESTION WAS A
CONTEMPT, THERE CAN BE NO DOUBT THAT IT WAS A CRIMINAL CONTEMPT AS
DEFINED BY OUR DECISIONS.  SEE NYE V. UNITED STATES, SUPRA, PP. 41-43
AND CASES CITED.  AS SUCH, IT WAS AN "OFFENSE" AGAINST THE UNITED
STATES, WITHIN THE MEANING OF SEC. 1044.  IT WAS HELD IN GOMPERS V.
UNITED STATES, 233 U.S. 604, THAT A WILFUL VIOLATION OF AN INJUNCTION,
LIKEWISE PUNISHABLE AS A CONTEMPT UNDER SEC. 268 OF THE JUDICIAL CODE,
WAS SUCH AN "OFFENSE."  AND SEE UNITED STATES V. GOLDMAN, 277 U.S.
229.  CF. EX PARTE GROSSMAN, 267 U.S. 87.  IT WAS SAID IN THE GOMPERS
CASE THAT THOSE CONTEMPTS WERE "INFRACTIONS OF THE LAW, VISITED WITH
PUNISHMENT AS SUCH.  IF SUCH ACTS ARE NOT CRIMINAL, WE ARE IN ERROR AS
TO THE MOST FUNDAMENTAL CHARACTERISTIC OF CRIMES AS THAT WORD HAS BEEN
UNDERSTOOD IN ENGLISH SPEECH."  233 U.S. P. 610.  THAT OBSERVATION IS
EQUALLY PERTINENT HERE.  MOREOVER, WE CAN SEE NO REASON FOR TREATING
ONE TYPE OF CONTEMPT UNDER SEC. 268 OF THE JUDICIAL CODE DIFFERENTLY IN
THIS RESPECT FROM OTHERS UNDER THE SAME SECTION.  NO SUCH DIFFERENCE IS
DISCERNIBLE FROM THE LANGUAGE OF SEC. 1044.  BECAUSE OF THAT AND
BECAUSE OF THE FURTHER CIRCUMSTANCE THAT CONGRESS CLASSIFIED THEM
TOGETHER IN DEFINING THE OFFENSE IN SEC. 268, WE CAN HARDLY CONCLUDE
THAT A DISTINCTION BETWEEN THEM FOR PURPOSES OF SEC. 1044 SHOULD BE
IMPLIED.  FURTHERMORE, THE FACT THAT THIS PROSECUTION WAS BY
INFORMATION, THE ABSENCE OF WHICH HAS BEEN HELD NOT FATAL UNDER SEC.
1044(GOMPERS V. UNITED STATES, SUPRA, PP. 611-612), BRINGS THE CASE
SQUARELY WITHIN THE LANGUAGE OF THE SECTION. 

CERTAINLY THE POWER TO PUNISH CONTEMPTS IN THE "PRESENCE" OF THE
COURT, LIKE THE POWER TO PUNISH CONTEMPTS FOR WILFUL VIOLATIONS OF THE
COURT'S DECREES, "MUST HAVE SOME LIMIT IN TIME."  GOMPERS V. UNITED
STATES, SUPRA, P. 612.  IT IS URGED, HOWEVER, THAT THERE IS NO
LIMITATION ON PROSECUTIONS FOR CONTEMPTS IN THE "PRESENCE" OF THE COURT
EXCEPT AS ONE MAY BE IMPLIED FROM THE CONCLUSION OF THE PROCEEDING IN
WHICH THE CONTEMPT ARISES.  BUT IF WE ARE FREE TO CONSIDER THE MATTER
AS OPEN, NO REASON FOR THAT DIFFERENT TREATMENT OF CONTEMPTS IN THE
"PRESENCE" OF THE COURT IS APPARENT.  ADAMS V. WOODS, 2 CRANCH 336,
HELD THAT THIS STATUTE OF LIMITATIONS WAS APPLICABLE TO AN ACTION OF
DEBT FOR A PENALTY.  CHIEF JUSTICE MARSHALL STATED THAT IT WOULD BE
"UTTERLY REPUGNANT TO THE GENIUS OF OUR LAWS" TO ALLOW SUCH AN ACTION
TO LIE "AT ANY DISTANCE OF TIME."  ID., P. 342.  THAT OBSERVATION IS
EQUALLY APT HERE.  PROCEEDINGS LIKE THE RATE LITIGATION OUT OF WHICH
THIS PROSECUTION AROSE MIGHT WELL CONTINUE FOR YEARS ON END AWAITING
FINAL DISPOSITION OF ALL THE FUNDS.  IF THERE IS A CONTEMPT, IT TAKES
PLACE WHEN THE "MISBEHAVIOR" OCCURS IN THE "PRESENCE" OF THE COURT. 
STATUTES OF LIMITATIONS NORMALLY BEGIN TO RUN WHEN THE CRIME IS
COMPLETE.  SEE UNITED STATES V. IRVINE, 98 U.S. 450.  EVERY STATUTE OF
LIMITATIONS, OF COURSE, MAY PERMIT A ROGUE TO ESCAPE.  YET, AS CHIEF
JUSTICE MARSHALL OBSERVED IN ADAMS V. WOODS, SUPRA, P. 342, "NOT EVEN
TREASON CAN BE PROSECUTED AFTER A LAPSE OF THREE YEARS."  THAT WAS
STILL TRUE AT THE TIME OF THIS OFFENSE.  SEE R.S. SEC. 1043, 18 U.S.C.
SEC. 581.  THERE IS NO REASON WHY THIS LESSER CRIME, PUNISHABLE WITHOUT
SOME OF THE PROTECTIVE FEATURES OF CRIMINAL TRIALS, SHOULD RECEIVE
FAVORED TREATMENT. 

BUT IT IS SAID THAT THE CONTRARY CONCLUSION IS TO BE INFERRED FROM
GOMPERS V. UNITED STATES, SUPRA, BECAUSE THIS COURT TOOK PAINS TO POINT
OUT THAT ITS RULING WAS APPLICABLE ONLY TO PROCEEDINGS FOR CONTEMPT
"NOT COMMITTED IN THE PRESENCE OF THE COURT."  233 U.S. P. 606.  BUT
THAT RESERVATION, MADE OUT OF AN ABUNDANCE OF CAUTION, ALSO EXTENDED TO
"PROCEEDINGS OF THIS SORT ONLY" (ID., P. 606), VIZ. PROCEEDINGS WHERE
NO INFORMATION WAS FILED.  EX PARTE TERRY, 128 U.S. 289, 314,
SANCTIONED SUMMARY PUNISHMENT FOR "DIRECT CONTEMPTS" COMMITTED IN THE
"PRESENCE" OF THE COURT.  THE QUESTION WHETHER THAT PROCEDURE COULD BE
FOLLOWED "AT A SUBSEQUENT TERM, OR AT A SUBSEQUENT DAY OF THE SAME
TERM," WAS SPECIFICALLY RESERVED.  ID., P. 314.  THAT IS A PROCEDURAL
PROBLEM PECULIAR TO DIRECT CONTEMPTS IN THE FACE OF THE COURT (SEE
COOKE V. UNITED STATES, 267 U.S. 517), AND OBVIOUSLY HAS NO RELEVANCY
TO THE PROBLEM OF THE STATUTE OF LIMITATIONS. 

THE PROSECUTION CONTENDS, HOWEVER, THAT THE OFFENSE CONSISTED IN THE
IMPOSITION OF A FRAUDULENT SCHEME UPON THE COURT, THAT SUCCESSFUL
EXECUTION OF THE SCHEME REQUIRED NOT ONLY MISREPRESENTATIONS TO THE
COURT BUT CONTINUOUS COOPERATION IN CONCEALING THE SCHEME UNTIL ITS
COMPLETION, THAT THE FRAUD ON THE COURT WOULD NOT BE FULLY EFFECTED
UNTIL 80% OF THE IMPOUNDED FUNDS WAS DISTRIBUTED TO THE INSURANCE
COMPANIES AND $750,000 PAID BY STREET AND DIVIDED AMONG PETITIONERS. 
ON THAT THEORY THE FRAUDULENT SCHEME, THOUGH COMMENCED BEFORE THE THREE
YEAR PERIOD, CONTINUED THEREAFTER.  ACCORDINGLY, IT IS ARGUED, BY
ANALOGY TO SUCH CASES AS UNITED STATES V. KISSEL, 218 U.S. 601, 607
608; HYDE V. UNITED STATES, 225 U.S. 347, 367-370; BROWN V. ELLIOTT,
225 U.S. 392, 400-401, THAT THE STATUTE OF LIMITATIONS BEGAN TO RUN
ONLY AFTER THE LATEST ACT IN THE EXECUTION OF THE SCHEME.  IT IS TRUE
THAT THE INFORMATION WAS DRAWN ON THE THEORY OF SUCH A CONTINUING
OFFENSE.  BUT THE DIFFICULTY WITH THAT THEORY LIES IN THE NATURE OF THE
OFFENSE DESCRIBED BY SEC. 268 OF THE JUDICIAL CODE. 

THAT SECTION, SO FAR AS MATERIAL HERE, LIMITS THE POWER "TO PUNISH
CONTEMPTS" TO CASES OF "MISBEHAVIOR" IN THE "PRESENCE" OF THE COURT. 
IF THIS WAS AN ORDINARY CRIMINAL PROSECUTION BROUGHT UNDER SEC. 135 OF
THE CRIMINAL CODE (18 U.S.C. SEC. 241) FOR "CORRUPTLY" OBSTRUCTING "THE
DUE ADMINISTRATION OF JUSTICE," QUITE DIFFERENT CONSIDERATIONS WOULD
GOVERN.  THE FACT THAT THE ACTS WERE NOT IN THE "PRESENCE" OF THE COURT
WOULD BE IMMATERIAL.  AND WE MAY ASSUME THAT A FRAUDULENT SCHEME OF THE
CHARACTER OF THE PRESENT ONE WOULD CONSTITUTE A CONTINUOUS OFFENSE
UNDER THAT SECTION.  WE MAY ALSO ASSUME THAT CERTAIN "MISBEHAVIOR" IN
THE "PRESENCE" OF THE COURT MIGHT CONSTITUTE AN OFFENSE UNDER SEC. 135
OF THE CRIMINAL CODE AS WELL AS A CONTEMPT UNDER SEC. 268 OF THE
JUDICIAL CODE, SO AS TO GIVE A CHOICE BETWEEN PROSECUTION BEFORE A JURY
AND PROSECUTION BEFORE A JUDGE.  BUT THE OFFENSE OF "MISBEHAVIOR" IN
THE "PRESENCE" OF THE COURT DOES NOT HAVE THE SWEEP OF "CORRUPTLY"
OBSTRUCTING OR CONSPIRING TO OBSTRUCT "THE DUE ADMINISTRATION OF
JUSTICE."  CONGRESS RESTRICTED THE CLASS OF OFFENSES FOR WHICH ONE MAY
BE TRIED WITHOUT A JURY.  IN THE PRESENT CASE, AS IN PROSECUTIONS FOR
CONTEMPT FOR WILFUL VIOLATIONS OF INJUNCTIONS (GOMPERS V. UNITED
STATES, SUPRA, P. 610), EACH ACT "SO FAR AS IT WAS A CONTEMPT, WAS
PUNISHABLE AS SUCH" AND THEREFORE "MUST BE JUDGED BY ITSELF."  AS WE
HAVE SAID, ONCE THE "MISBEHAVIOR" OCCURS IN THE "PRESENCE" OF THE
COURT, THE CRIME IS COMPLETE.  IT IS CONCEDED THAT BUT FOR THE
MISREPRESENTATIONS MADE TO THE COURT THERE WOULD HAVE BEEN NO
"MISBEHAVIOR" IN ITS "PRESENCE" WITHIN THE MEANING OF SEC. 268 OF THE
JUDICIAL CODE.  AND IT IS NOT CLAIMED THAT THERE WERE ANY
MISREPRESENTATIONS MADE TO THE COURT WITHIN THREE YEARS OF THE FILING
OF THE INFORMATION; OR IF MAY 29, 1939, THE DATE WHEN THE COURT
DIRECTED THE INQUIRY, BE DEEMED THE IMPORTANT ONE (GOMPERS V. UNITED
STATES, SUPRA, P. 608), THERE IS NO CONTENTION THAT ANY SUCH
MISREPRESENTATIONS WERE MADE WITHIN THREE YEARS OF THAT TIME.  IT IS
NOT FRAUD ON THE COURT WHICH SEC. 268 MAKES PUNISHABLE AS A CONTEMPT,
UNLESS THAT FRAUD IS "MISBEHAVIOR" IN THE "PRESENCE" OF THE COURT OR
"SO NEAR THERETO AS TO OBSTRUCT THE ADMINISTRATION OF JUSTICE."  AND,
IF THE LATTER REQUIREMENTS ARE NOT MET, THE FACT THAT THE FRAUD MAY BE
"MISBEHAVIOR" IS NOT SUFFICIENT.  THE MERE CONTINUANCE OF A FRAUDULENT
INTENT AFTER AN ACT OF "MISBEHAVIOR" IN THE "PRESENCE" OF THE COURT
DOES NOT MAKE THAT "MISBEHAVIOR" A CONTINUING OFFENSE UNDER SEC. 268. 
THE MISREPRESENTATIONS TO THE COURT MADE POSSIBLE, OF COURSE, THE
CONSUMMATION OF THIS NEFARIOUS SCHEME.  BUT EACH SUBSEQUENT STEP IN
THAT SCHEME DID NOT CONSTITUTE A CONTEMPT UNLESS, LIKE THE
MISREPRESENTATION ITSELF, IT WAS "MISBEHAVIOR" IN THE "PRESENCE" OF THE
COURT OR "SO NEAR THERETO AS TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE."  NO SUCH SHOWING HAS BEEN MADE HERE AND NONE HAS BEEN
ATTEMPTED.  THE FACT THAT THE SCHEME WAS FRAUDULENT AND CORRUPTLY
OBSTRUCTED THE ADMINISTRATION OF JUSTICE DOES NOT ENLARGE THE LIMITED
POWER TO PUNISH FOR CONTEMPT.  IT MERELY MEANS THAT IF PETITIONERS CAN
BE PUNISHED, IT MUST BE THROUGH THE ORDINARY CHANNELS OF CRIMINAL
PROSECUTIONS UNDER THE CRIMINAL CODE.  WE ARE FORCED TO CONCLUDE THAT
ANY CONTEMPT COMMITTED OCCURRED NOT LATER THAN FEBRUARY 1, 1936, WHEN
THE COURT ORDERED THE DISTRIBUTION OF THE IMPOUNDED FUNDS.  IT WAS
THEREFORE BARRED BY THE STATUTE OF LIMITATIONS.  REVERSED. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 

MR. JUSTICE JACKSON, DISSENTING: 

I DO NOT AGREE THAT WE SHOULD LEAVE UNDECIDED THE QUESTION WHETHER
CONDUCT OF THIS SORT CONSTITUTES PUNISHABLE CONTEMPT.  TO USE BRIBERY
AND FRAUD ON THE COURT TO OBTAIN ITS ORDER FOR DISBURSEMENT OF NEARLY
$10,000,000 IN TRUST IN ITS CUSTODY IS NOT ONLY CONTEMPT BUT CONTEMPT
OF A KIND FAR MORE DAMAGING TO THE COURT'S GOOD NAME AND MORE SUBTLY
OBSTRUCTIVE OF JUSTICE THAN THROWING AN INKWELL AT A JUDGE OR
DISTURBING THE PEACE OF A COURTROOM.  I WOULD HOLD THE CONDUCT OF THESE
PETITIONERS TO BE "MISBEHAVIOR" AND WITHIN THE "PRESENCE" OF THE COURT
AND HENCE A CONTEMPT WITHIN THE MEANING OF THE STATUTE.  I SHOULD NOT
DEFLECT WHAT SEEMS TO BE THE COURSE OF PRACTICAL AND OBVIOUS JUSTICE IN
THIS CASE BY RESORT TO METAPHYSICAL SPECULATIONS AS TO THE EFFECT OF
ABSENCE OF THE SCHEMERS FROM THE COURTROOM WHEN ATTORNEYS WHOM ALSO
THEY HAD DECEIVED OBTAINED THE ORDER FROM THE COURT. 

NEITHER CAN I AGREE WITH THE COURT'S CONCLUSION THAT THIS CONTEMPT
EXPIRED WITH THE SETTING SUN AND THE STATUTE OF LIMITATION THEN BEGAN
ITS WORK OF IMMUNIZING THESE DEFENDANTS.  THE FRAUD HAD AS ITS OBJECT
NOT MERELY TO GET THE COURT ORDER, BUT TO GET THE MONEY FROM THE
COURT'S CUSTODY.  THE CONTEMPT AND THE FRAUD DID NOT CEASE TO OPERATE
SO LONG AS THE MONEY WAS BEING DISBURSED IN RELIANCE UPON IT, AND BY
VIRTUE OF ITS CONCEALMENT. 

HENCE, I FIND NO GOOD REASON FOR INTERFERING WITH THE EFFORT OF THE
LOWER COURT TO BRING THESE MEN TO ACCOUNT FOR THEIR FRAUD ON IT. 

MR. JUSTICE FRANKFURTER: 

I WHOLLY AGREE WITH THE CONCLUSION OF MR. JUSTICE JACKSON THAT THE
PETITIONERS' CONDUCT CONSTITUTED A CONTEMPT WITHIN THE MEANING OF SEC.
268 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 385.  BUT I AM ALSO COMPELLED
TO CONCLUDE, FOR THE REASONS STATED IN THE OPINION OF THE COURT, THAT
PROSECUTION FOR SUCH OFFENSE IS BARRED BY THE APPLICABLE STATUTE OF
LIMITATIONS, R.S. SEC. 1044, 18 U.S.C. SEC. 582. 
..END :











DEPT. OF BANKING V. PINK, 317 U.S. 264 


NO. 466.  DECIDED DECEMBER 21, 1942.  - PETITION DENIED. 


1.  AFTER A FINAL JUDGMENT BY THE NEW YORK COURT OF APPEALS, ENTERED
IN THE LOWER COURT UPON REMITTITUR, AN AMENDMENT MERELY CERTIFYING THAT
A FEDERAL QUESTION WAS PRESENTED AND DECIDED DOES NOT EXTEND THE TIME -
THREE MONTHS FROM THE RENDITION OF THE JUDGMENT OF THE HIGHER COURT -
WITHIN WHICH PETITION FOR CERTIORARI CAN BE FILED IN THIS COURT.  P.
266. 

2.  ALTHOUGH A WRIT OF CERTIORARI TO REVIEW A JUDGMENT OF THE HIGHEST
COURT OF A STATE MAY PROPERLY RUN TO A LOWER COURT WHERE THE RECORD IS
PHYSICALLY LODGED, AND WHERE UNDER NEW YORK PRACTICE A JUDGMENT IS
ENTERED UPON THE REMITTITUR OF THE COURT OF APPEALS, IT IS NEVERTHELESS
IMMATERIAL WHETHER THE RECORD IS PHYSICALLY LODGED IN THE ONE COURT OR
THE OTHER, SINCE THIS COURT HAS AMPLE POWER TO OBTAIN IT FROM EITHER. 
P. 267. 

3.  THE TIME WITHIN WHICH APPLICATION TO REVIEW A FINAL JUDGMENT OF
THE NEW YORK COURT OF APPEALS MAY BE MADE TO THIS COURT RUNS FROM THE
DATE OF THE RENDITION OF THE JUDGMENT IN THAT COURT, AND NOT FROM THE
DATE WHEN, UNDER THE LOCAL PRACTICE, JUDGMENT WAS ENTERED ON REMITTITUR
IN THE LOWER STATE COURT.  P. 267. 

4.  A JUDGMENT OR ORDER OF THE COURT OF APPEALS OF NEW YORK IS FINAL
FOR PURPOSES OF REVIEW BY THIS COURT WHEN THE RECORD REVEALS THAT IT
LEAVES NOTHING TO BE DONE BY THE LOWER COURT EXCEPT THE MINISTERIAL ACT
OF ENTERING JUDGMENT ON THE REMITTITUR.  P. 267. 

5.  THE TEST OF THE FINALITY PREREQUISITE TO A REVIEW IN THIS COURT
IS NOT WHETHER UNDER LOCAL RULES OF PRACTICE THE JUDGMENT IS
DENOMINATED FINAL, BUT IS WHETHER THE RECORD SHOWS THAT THE ORDER OF
THE APPELLATE COURT HAS IN FACT FULLY ADJUDICATED RIGHTS AND THAT THAT
ADJUDICATION IS NOT SUBJECT TO FURTHER REVIEW BY A STATE COURT.  P.
268. 

6.  WHERE THE JUDGMENT IS FINAL IN THIS SENSE, THE TIME FOR APPLYING
TO THIS COURT RUNS FROM THE DATE OF THE JUDGMENT.  P. 268. 

DEPARTMENT OF BANKING OF NEBRASKA, RECEIVER, V. PINK, SUPERINTENDENT
OF INSURANCE OF THE STATE OF NEW YORK. 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

PETITION FOR CERTIORARI TO REVIEW A JUDGMENT ENTERED IN THE SUPREME
COURT OF NEW YORK AS DIRECTED BY REMITTITUR FROM THE COURT OF APPEALS
OF THE STATE.  FOR REPORT BELOW, SEE 288 N.Y. 712, 43 N.E.2D 93; 289
N.Y. 624, 43 N.E.2D 840; 289 N.Y. 841, 47 N.E.2D 441. 

PER CURIAM. 

THIS CASE IS HERE ON A PETITION FOR CERTIORARI TO THE SUPREME COURT
OF NEW YORK.  IT APPEARS FROM THE RECORD THAT A JUDGMENT OF THAT COURT
WAS AFFIRMED BY AN ORDER OF THE APPELLATE DIVISION, WHICH WAS ON JUNE
18, 1942 ORDERED AFFIRMED BY THE COURT OF APPEALS, WHOSE REMITTITUR TO
THE SUPREME COURT WAS ISSUED THE SAME DAY.  ON JUNE 25 THE ORDER AND
JUDGMENT OF THE COURT OF APPEALS WERE MADE THE ORDER AND JUDGMENT OF
THE SUPREME COURT. 

A MOTION WAS AFTERWARDS FILED IN THE COURT OF APPEALS TO AMEND ITS
REMITTITUR BY ADDING TO IT THE STATEMENT THAT A FEDERAL QUESTION, ON
WHICH THE PETITION FOR CERTIORARI RELIES, WAS PRESENTED AND NECESSARILY
PASSED UPON IN THAT COURT.  SO FAR AS APPEARS, THE MOTION DID NOT SEEK
A REARGUMENT OR REHEARING OF ANY PART OF THE CASE; IT WAS NO MORE THAN
A REQUEST THAT THE COURT OF APPEALS DECLARE WHAT HAD IN FACT OCCURRED
UPON ITS PREVIOUS DECISION OF THE CASE.  ON JULY 29 THE COURT OF
APPEALS GRANTED THE MOTION AND AMENDED ITS REMITTITUR ACCORDINGLY.  ON
SEPTEMBER 16, THE SUPREME COURT DIRECTED THAT THE ORDER AMENDING THE
REMITTITUR BE MADE THE ORDER OF THE SUPREME COURT.  THE PETITION FOR
CERTIORARI WAS FILED IN THIS COURT ON OCTOBER 20. 

UNDER THE THREE-MONTHS LIMITATION IMPOSED BY THE STATUTE, 28 U.S.C.
SEC. 350, THE PETITION FOR CERTIORARI IS TIMELY ONLY IF THE AMENDMENT
OF THE REMITTITUR EXTENDED THE TIME WITHIN WHICH TO APPLY FOR
CERTIORARI.  WE ARE UNABLE TO CONCLUDE THAT IT HAD SUCH EFFECT.  UNLIKE
A MOTION FOR REARGUMENT OR REHEARING, IT DID NOT SEEK TO HAVE THE COURT
OF APPEALS RECONSIDER ANY QUESTION DECIDED IN THE CASE.  THE FINAL
JUDGMENT ALREADY RENDERED WAS NOT CHALLENGED; WHAT WAS SOUGHT WAS
MERELY THE COURT'S CERTIFICATION THAT A FEDERAL QUESTION HAD BEEN
PRESENTED TO IT FOR DECISION, AND THIS COULD HAVE NO DIFFERENT EFFECT
ON THE FINALITY OF THE JUDGMENT THAN A LIKE AMENDMENT OF THE COURT'S
OPINION. 

A TIMELY PETITION FOR REHEARING TOLLS THE RUNNING OF THE THREE-MONTHS
PERIOD BECAUSE IT OPERATES TO SUSPEND THE FINALITY OF THE STATE COURT'S
JUDGMENT, PENDING THE COURT'S FURTHER DETERMINATION WHETHER THE
JUDGMENT SHOULD BE MODIFIED SO AS TO ALTER ITS ADJUDICATION OF THE
RIGHTS OF THE PARTIES.  HERE NO SUCH ALTERATION OF THE RIGHTS
ADJUDICATED WAS ASKED, AND THE FINALITY OF THE COURT'S FIRST ORDER WAS
NEVER SUSPENDED.  ACCORDINGLY WE MUST DENY THE PETITION FOR CERTIORARI
ON THE GROUND THAT IT WAS NOT FILED WITHIN THE TIME PROVIDED BY LAW. 

CERTAIN QUESTIONS WITH RESPECT TO THE TIMELINESS OF APPLICATIONS FOR
REVIEW OF STATE COURT JUDGMENTS, WHICH ARE NOW PENDING BEFORE US IN
PETITIONS FOR REHEARING IN TWO CASES, HAVE RECURRED SO FREQUENTLY THAT
WE THINK IT APPROPRIATE TO ADD A WORD FOR THE GUIDANCE OF THE BAR.  IT
IS TRUE THAT OUR WRIT TO REVIEW A JUDGMENT OF THE HIGHEST COURT OF A
STATE MAY PROPERLY RUN TO A LOWER COURT WHERE THE RECORD IS PHYSICALLY
LODGED, AND WHERE UNDER NEW YORK PRACTICE A JUDGMENT IS ENTERED UPON
THE REMITTITUR OF THE COURT OF APPEALS.  IT IS NEVERTHELESS IMMATERIAL
WHETHER THE RECORD IS PHYSICALLY LODGED IN THE ONE COURT OR THE OTHER,
SINCE WE HAVE AMPLE POWER TO OBTAIN IT FROM EITHER.  ATHERTON V.
FOWLER, 91 U.S. 143, 146.  IN RELIANCE UPON THE EARLY DECISION IN GREEN
V. VAN BUSKERK, 3 WALL.  448, THE PERIOD FOR APPEAL OR APPLICATION FOR
CERTIORARI HAS ON OCCASION BEEN COMPUTED NOT FROM THE JUDGMENT OR ORDER
OF THE NEW YORK COURT OF APPEALS, BUT FROM THE JUDGMENT SUBSEQUENTLY
ENTERED BY THE LOWER COURT UPON THE COURT OF APPEALS' REMITTITUR.  THIS
PRACTICE, WHICH IS A DEPARTURE FROM THE RULE APPLIED TO CASES FROM
OTHER STATES, IS INCONSISTENT WITH OUR MANY DECISIONS ON THE NATURE OF
A FINAL JUDGMENT UNDER SEC. 237 OF THE JUDICIAL CODE, 28 U.S.C. SEC.
344, AND CANNOT BE SANCTIONED.  SEE ESPECIALLY CHIEF JUSTICE WAITE'S
OPINION IN MOWER V. FLETCHER, 114 U.S. 127, WHERE A STATE APPELLATE
COURT'S JUDGMENT WAS HELD TO BE FINAL AND REVIEWABLE WHEN IT ENDED THE
LITIGATION BY FULLY DETERMINING THE RIGHTS OF THE PARTIES, SO THAT
NOTHING REMAINED TO BE DONE BY THE LOWER COURT EXCEPT THE MINISTERIAL
ACT OF ENTERING THE JUDGMENT WHICH THE APPELLATE COURT HAD DIRECTED. 
SEE ALSO WURTS V. HOAGLAND, 105 U.S. 701, 702, AND CLARK V. WILLIARD,
292 U.S. 112, 117-118.  THIS RULE APPLIES WITH EQUAL FORCE TO CASES
FROM NEW YORK, IN WHICH THE JUDGMENT OR ORDER OF THE COURT OF APPEALS
IS REVIEWABLE HERE AS A FINAL JUDGMENT WHEN THE RECORD REVEALS THAT IT
LEAVES NOTHING TO BE DONE BY THE LOWER COURT EXCEPT THE MINISTERIAL ACT
OF ENTERING JUDGMENT ON THE REMITTITUR.  SUCH AN ORDER IS, WITHIN THE
MEANING OF SEC. 237 OF THE JUDICIAL CODE, A FINAL JUDGMENT REVIEWABLE
HERE. 

FOR THE PURPOSE OF THE FINALITY WHICH IS PREREQUISITE TO A REVIEW IN
THIS COURT, THE TEST IS NOT WHETHER UNDER LOCAL RULES OF PRACTICE THE
JUDGMENT IS DENOMINATED FINAL (WICK V. SUPERIOR COURT, 278 U.S. 575;
CHELTENHAM & ABINGTON SEWERAGE CO. V. PENNSYLVANIA PUBLIC UTILITY
COMM'N, POST, P. 588), BUT RATHER WHETHER THE RECORD SHOWS THAT THE
ORDER OF THE APPELLATE COURT HAS IN FACT FULLY ADJUDICATED RIGHTS AND
THAT THAT ADJUDICATION IS NOT SUBJECT TO FURTHER REVIEW BY A STATE
COURT (SEE GORMAN V. WASHINGTON UNIVERSITY, 316 U.S. 98).  WHERE THE
ORDER OR JUDGMENT IS FINAL IN THIS SENSE, THE TIME FOR APPLYING TO THIS
COURT RUNS FROM THE DATE OF THE APPELLATE COURT'S ORDER, SINCE THE
OBJECT OF THE STATUTE IS TO LIMIT THE APPLICANT'S TIME TO THREE MONTHS
FROM THE DATE WHEN THE FINALITY OF THE JUDGMENT FOR PURPOSES OF REVIEW
IS ESTABLISHED. 

IT WAS FOR THIS REASON THAT WE RECENTLY HELD THAT THE THREE-MONTHS
REQUIREMENT HAD NOT BEEN COMPLIED WITH IN MONKS V. LEE, POST, P. 590,
AND BUNN V. ATLANTA, POST, P. 666, IN WHICH CASES JUDGMENTS WERE
BROUGHT HERE FOR REVIEW FROM THE COURTS OF CALIFORNIA AND GEORGIA, AND
IN EACH OF WHICH A PETITION FOR REHEARING IS TODAY DENIED, POST, P.
711.  THE PETITION FOR CERTIORARI IN THIS CASE MUST LIKEWISE BE DENIED
FOR WANT OF JURISDICTION.  SO ORDERED. 
..END :














ADAMS V. U.S. EX REL. MCCANN, 317 U.S. 269 


NO. 79.  ARGUED NOVEMBER 17, 18, 1942.  - DECIDED DECEMBER 21, 1942.  -
126 F.2D 774, REVERSED. 


1.  A CIRCUIT COURT OF APPEALS HAS POWER TO ISSUE A WRIT OF HABEAS
CORPUS AS AN INCIDENT TO AN APPEAL PENDING BEFORE IT.  P. 272. 

2.  THE RULE THAT A WRIT OF HABEAS CORPUS WILL NOT SERVE AS AN APPEAL
MUST BE STRICTLY OBSERVED.  P. 274. 

3.  UPON AN APPEAL TO THE CIRCUIT COURT OF APPEALS FROM A CONVICTION
OF FELONY, THE APPELLANT ASSIGNED SEVERAL ERRORS, INCLUDING THE
INSUFFICIENCY OF THE EVIDENCE; BUT THE PREPARATION OF A BILL OF
EXCEPTIONS WAS OBSTRUCTED BY PECULIAR DIFFICULTIES, INCLUDING THE
INDIGENCE OF THE APPELLANT AND HIS INCARCERATION IN JAIL.  THE
APPELLATE COURT HAVING RAISED THE QUESTION WHETHER THE TRIAL WAS VOID
BECAUSE THE DEFENSE HAD BEEN CONDUCTED BY THE ACCUSED, AND A JURY HAD
BEEN WAIVED BY HIM, WITHOUT THE HELP OR ADVICE OF COUNSEL: 

HELD THAT FOR ITS AID IN DECIDING THIS QUESTION THE CIRCUIT COURT OF
APPEALS HAD JURISDICTION UNDER JUDICIAL CODE SEC. 262 TO ISSUE A WRIT
OF HABEAS CORPUS.  P. 274. 

4.  IN A CRIMINAL PROSECUTION IN A FEDERAL COURT, AN ACCUSED, IN THE
EXERCISE OF A FREE AND INTELLIGENT CHOICE AND WITH THE CONSIDERED
APPROVAL OF THE COURT, MAY WAIVE TRIAL BY JURY, AND SO, LIKEWISE, MAY
WAIVE HIS CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF COUNSEL.  P. 275. 

ADAMS, WARDEN, ET AL. V. UNITED STATES EX REL. MCCANN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 316 U.S. 655, TO REVIEW A JUDGMENT REVERSING A CONVICTION
AND SENTENCE IN A PROSECUTION FOR USING THE MAILS TO DEFRAUD IN
VIOLATION OF CRIMINAL CODE, SEC. 215. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A REVIEW OF AN ORDER BY THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT DISCHARGING THE RELATOR MCCANN FROM CUSTODY.  WE ACCEPT
AS FACTS, AS DID THE COURT BELOW, THOSE SET FORTH IN THE UNTRAVERSED
RETURN TO THE WRIT OF HABEAS CORPUS IN THAT COURT. 

MCCANN WAS INDICTED ON SIX COUNTS FOR USING THE MAILS TO DEFRAUD, IN
VIOLATION OF SEC. 215 OF THE CRIMINAL CODE, 18 U.S.C. SEC. 338.  FROM
THE TIME OF HIS ARRAIGNMENT ON FEBRUARY 18, 1941, TO THE PROSECUTION OF
HIS APPEAL IN THE COURT BELOW, MCCANN INSISTED ON CONDUCTING HIS CASE
WITHOUT THE ASSISTANCE OF A LAWYER.  WHEN CALLED UPON TO PLEAD TO THE
INDICTMENT, HE REFUSED TO DO SO; A PLEA OF NOT GUILTY WAS ENTERED ON
HIS BEHALF.  THE DISTRICT COURT AT THAT TIME ADVISED MCCANN TO RETAIN
COUNSEL.  HE REFUSED, HOWEVER, "STATING IN SUBSTANCE THAT HE DESIRED TO
REPRESENT HIMSELF, THAT THE CASE WAS VERY COMPLICATED, AND THAT HE WAS
SO FAMILIAR WITH ITS DETAILS THAT NO ATTORNEY WOULD BE ABLE TO GIVE HIM
AS COMPETENT REPRESENTATION AS HE WOULD BE ABLE TO GIVE HIMSELF." 

WHEN THE CASE CAME ON FOR TRIAL ON JULY 7, 1941, MCCANN REPEATED, IN
REPLY TO THE JUDGE'S INQUIRY WHETHER HE HAD COUNSEL, THAT HE WISHED TO
REPRESENT HIMSELF.  IN RESPONSE TO THE COURT'S FURTHER INQUIRY WHETHER
HE WAS ADMITTED TO THE BAR, MCCANN "REPLIED THAT HE WAS NOT, BUT THAT
HE HAD STUDIED LAW, AND WAS SUFFICIENTLY FAMILIAR THEREWITH ADEQUATELY
TO DEFEND HIMSELF, AND WAS MORE FAMILIAR WITH THE COMPLICATED FACTS OF
HIS CASE THAN ANY ATTORNEY COULD EVER BE."  FN1 MCCANN "THEN MOVED TO
HAVE THE CASE TRIED WITHOUT A JURY BY THE JUDGE ALONE.  THERE WAS A
BRIEF DISCUSSION BETWEEN THE COURT, THE PETITIONER, AND THE ASSISTANT
UNITED STATES ATTORNEY," AFTER WHICH MCCANN SUBMITTED THE FOLLOWING
OVER HIS SIGNATURE:  "I, GENE MCCANN, THE DEFENDANT HEREIN, APPEARING
PERSONALLY, DO HEREBY WAIVE A TRIAL BY JURY IN THE ABOVE ENTITLED CASE,
HAVING BEEN ADVISED BY THE COURT OF MY CONSTITUTIONAL RIGHT."  THE
ASSISTANT UNITED STATES ATTORNEY CONSENTED, AND THE JUDGE (ONE OF LONG
TRIAL EXPERIENCE AND TESTED SOLICITUDE FOR THE CIVILIZED ADMINISTRATION
OF CRIMINAL JUSTICE) ENTERED AN ORDER APPROVING THIS "WAIVER." 

THE TRIAL THEN GOT UNDER WAY.  IT LASTED FOR TWO WEEKS AND A HALF,
AND THROUGHOUT THE ENTIRE PROCEEDINGS MCCANN REPRESENTED HIMSELF.  HE
WAS CONVICTED ON JULY 22, 1941, AND WAS SENTENCED TO IMPRISONMENT FOR
SIX YEARS AND TO PAY A FINE OF $600.  HE TOOK AN APPEAL, AND THE TRIAL
JUDGE FIXED BAIL AT $10,000.  BEING UNABLE TO PROCURE THIS SUM, HE
REMAINED IN CUSTODY.  THEN FOLLOWED APPLICATIONS TO THE CIRCUIT COURT
OF APPEALS, LIKEWISE PRESSED BY MCCANN HIMSELF, FOR EXTENDING THE TIME
FOR FILING A BILL OF EXCEPTIONS.  IN THESE PROCEEDINGS BOTH THE TRIAL
AND APPELLATE COURTS AGAIN SUGGESTED TO MCCANN THE ADVISABILITY OF
BEING REPRESENTED BY COUNSEL.  AFTER HAVING PERSONALLY MADE THESE
NUMEROUS APPLICATIONS, MCCANN FINALLY SECURED THE ASSISTANCE OF AN
ATTORNEY.  THE LATTER APPLIED TO THE CIRCUIT COURT OF APPEALS FOR
REDUCTION OF BAIL.  IT WAS SO REDUCED.  BUT AT THE SAME TIME THE COURT
SUGGESTED THAT MCCANN TAKE OUT A WRIT OF HABEAS CORPUS, RETURNABLE TO
THE COURT, TO RAISE THE QUESTION WHETHER, IN THE CIRCUMSTANCES OF THE
CASE, "THE JUDGE HAD JURISDICTION TO TRY HIM." 

AS IS POINTED OUT IN THE OPINION OF THE CIRCUIT COURT OF APPEALS, "AT
NO TIME DID HE (MCCANN) INDICATE THAT HE WISHED A JURY OR THAT HE
REPENTED OF HIS CONSENT - EITHER WHILE THE CAUSE WAS IN THE DISTRICT
COURT OR IN THIS COURT - UNTIL THE ATTORNEY, WHO NOW REPRESENTS HIM, IN
MARCH, 1942, RAISED THE POINT" AT THE COURT'S INVITATION.  THE "POINT"
THUS PROJECTED INTO THE CASE BY THE CIRCUIT COURT OF APPEALS WAS
PRESENTED, IN ITS OWN WORDS, "IN THE BAREST POSSIBLE FORM:  HAS AN
ACCUSED, WHO IS WITHOUT COUNSEL, THE POWER AT HIS OWN INSTANCE TO
SURRENDER HIS RIGHT OF TRIAL BY JURY WHEN INDICTED FOR FELONY?"  FN2
THE CIRCUIT COURT OF APPEALS, WITH ONE JUDGE DISSENTING, ANSWERED THIS
QUESTION IN THE NEGATIVE.  IT HELD THAT NO PERSON ACCUSED OF A FELONY -
WHO IS HIMSELF NOT A LAWYER - CAN WAIVE TRIAL BY A JURY, NO MATTER HOW
CAPABLE HE IS OF MAKING AN INTELLIGENT, INFORMED CHOICE AND HOW
STRENUOUSLY HE INSISTS UPON SUCH A CHOICE, UNLESS HE DOES SO UPON THE
ADVICE OF AN ATTORNEY.  126 F.2D 774.  THE OBVIOUS IMPORTANCE OF THIS
QUESTION TO THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE FEDERAL
COURTS LED US TO BRING THE CASE HERE.  316 U.S. 655. 

A JURISDICTIONAL OBSTACLE TO A CONSIDERATION OF THIS ISSUE IS PRESSED
BEFORE US.  IT IS URGED THAT THE CIRCUIT COURT OF APPEALS HAD NO
JURISDICTION TO ISSUE THE WRIT OF HABEAS CORPUS IN THIS CASE.  THE
DISCUSSION OF THIS QUESTION TOOK AN EXTENDED RANGE IN THE ARGUMENTS AT
THE BAR, BUT IN THE CIRCUMSTANCES OF THIS CASE THE MATTER LIES WITHIN A
NARROW COMPASS.  UNINTERRUPTEDLY FROM THE FIRST JUDICIARY ACT (SEC. 14
OF THE ACT OF SEPTEMBER 24, 1789, 1 STAT. 73, 81) TO THE PRESENT DAY
(SEC. 262 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 377), THE COURTS OF THE
UNITED STATES HAVE HAD POWERS OF AN AUXILIARY NATURE "TO ISSUE ALL
WRITS NOT SPECIFICALLY PROVIDED FOR BY STATUTE, WHICH MAY BE NECESSARY
FOR THE EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND AGREEABLE TO
THE USAGES AND PRINCIPLES OF LAW."  IN WHITNEY V. DICK, 202 U.S. 132,
THIS COURT HELD THAT WHERE NO PROCEEDING OF AN APPELLATE CHARACTER IS
PENDING IN A CIRCUIT COURT OF APPEALS, THE AUTHORITY TO ISSUE AUXILIARY
WRITS DOES NOT COME INTO OPERATION.  A CIRCUIT COURT OF APPEALS CANNOT
ISSUE THE WRIT OF HABEAS CORPUS AS "AN INDEPENDENT AND ORIGINAL
PROCEEDING CHALLENGING IN TOTO THE VALIDITY OF A JUDGMENT RENDERED IN
ANOTHER COURT."  BUT THE COURT ALSO RECOGNIZED THAT THERE WAS POWER TO
ISSUE THE WRIT "WHERE IT MAY BE NECESSARY FOR THE EXERCISE OF A
JURISDICTION ALREADY EXISTING."  202 U.S. AT 136-37.  IN THE CASE AT
BAR, A PROCEEDING OF AN APPELLATE CHARACTER WAS PENDING IN THE CIRCUIT
COURT OF APPEALS, FOR MCCANN HAD ALREADY FILED AN APPEAL FROM THE
JUDGMENT OF CONVICTION.  THERE WAS, THEREFORE, "A JURISDICTION ALREADY
EXISTING" IN THE CIRCUIT COURT OF APPEALS.  BUT COULD THE ISSUANCE OF
THE WRIT BE DEEMED "NECESSARY FOR THE EXERCISE" OF THAT JURISDICTION? 

PROCEDURAL INSTRUMENTS ARE MEANS FOR ACHIEVING THE RATIONAL ENDS OF
LAW.  A CIRCUIT COURT OF APPEALS IS NOT LIMITED TO ISSUING A WRIT OF
HABEAS CORPUS ONLY WHEN IT FINDS THAT IT IS "NECESSARY" IN THE SENSE
THAT THE COURT COULD NOT OTHERWISE PHYSICALLY DISCHARGE ITS APPELLATE
DUTIES.  UNLESS APPROPRIATELY CONFINED BY CONGRESS, A FEDERAL COURT MAY
AVAIL ITSELF OF ALL AUXILIARY WRITS AS AIDS IN THE PERFORMANCE OF ITS
DUTIES, WHEN THE USE OF SUCH HISTORIC AIDS IS CALCULATED IN ITS SOUND
JUDGMENT TO ACHIEVE THE ENDS OF JUSTICE ENTRUSTED TO IT.  UNDOUBTEDLY,
THEREFORE, THE CIRCUIT COURT OF APPEALS HAD "JURISDICTION," IN THE
SENSE THAT IT HAD THE POWER, TO ISSUE THE WRIT AS AN INCIDENT TO THE
APPEAL THEN PENDING BEFORE IT.  THE REAL QUESTION IS WHETHER THE
CIRCUIT COURT OF APPEALS ABUSED ITS POWER IN EXERCISING THAT
JURISDICTION IN THE SITUATION THAT CONFRONTED IT. 

OF COURSE THE WRIT OF HABEAS CORPUS SHOULD NOT DO SERVICE FOR AN
APPEAL.  GLASGOW V. MOYER, 225 U.S. 420, 428; MATTER OF GREGORY, 219
U.S. 210, 213.  THIS RULE MUST BE STRICTLY OBSERVED IF ORDERLY
APPELLATE PROCEDURE IS TO BE MAINTAINED.  MERE CONVENIENCE CANNOT
JUSTIFY USE OF THE WRIT AS A SUBSTITUTE FOR AN APPEAL.  BUT DRY
FORMALISM SHOULD NOT STERILIZE PROCEDURAL RESOURCES WHICH CONGRESS HAS
MADE AVAILABLE TO THE FEDERAL COURTS.  IN EXCEPTIONAL CASES WHERE,
BECAUSE OF SPECIAL CIRCUMSTANCES, ITS USE AS AN AID TO AN APPEAL OVER
WHICH THE COURT HAS JURISDICTION MAY FAIRLY BE SAID TO BE REASONABLY
NECESSARY IN THE INTEREST OF JUSTICE, THE WRIT OF HABEAS CORPUS IS
AVAILABLE TO A CIRCUIT COURT OF APPEALS. 

THE CIRCUMSTANCES THAT MOVED THE COURT BELOW TO THE EXERCISE OF ITS
JURISDICTION WERE THE PECULIAR DIFFICULTIES INVOLVED IN PREPARING A
BILL OF EXCEPTIONS.  THE STENOGRAPHIC MINUTES HAD NEVER BEEN TYPED. 
THE RELATOR CLAIMED THAT HE WAS WITHOUT FUNDS.  SINCE HE WAS UNABLE TO
RAISE THE BAIL FIXED BY THE TRIAL JUDGE, HE HAD BEEN IN CUSTODY SINCE
SENTENCE AND THEREFORE HAD NO OPPORTUNITY TO PREPARE A BILL OF
EXCEPTIONS.  THE COURT DOUBTED "WHETHER ANY (BILL) CAN EVER BE MADE UP
ON WHICH THE APPEAL CAN BE HEARD  ...  IN THE PARTICULAR CIRCUMSTANCES
OF THE CASE AT BAR, IT SEEMS TO US THAT THE WRIT IS 'NECESSARY TO THE
COMPLETE EXERCISE' OF OUR APPELLATE JURISDICTION BECAUSE  ...  THERE IS
A DANGER THAT IT CANNOT BE OTHERWISE EXERCISED AT ALL AND A CERTAINTY
THAT IT MUST IN ANY EVENT BE A GOOD DEAL HAMPERED." 

THE COURT BELOW RECOGNIZED, HOWEVER, THAT A BILL OF EXCEPTIONS MIGHT
BE PREPARED WHICH WOULD BE CONFINED TO THE SINGLE POINT RAISED BY THE
WRIT OF HABEAS CORPUS.  THIS IS THE BASIS FOR THE CONTENTION THAT THE
WRIT OF HABEAS CORPUS IN THIS CASE PERFORMS THE FUNCTION OF AN APPEAL. 
BUT INASMUCH AS MCCANN WAS URGING A NUMBER OF GROUNDS FOR THE REVERSAL
OF HIS CONVICTION, INCLUDING THE SUFFICIENCY OF THE EVIDENCE, THE
CIRCUIT COURT OF APPEALS WAS JUSTIFIED IN CONCLUDING THAT IT WOULD NOT
BE FAIR TO MAKE HIM STAKE HIS WHOLE APPEAL ON THE SINGLE POINT RAISED
BY THIS WRIT.  WE CANNOT SAY THAT THE COURT WAS UNREASONABLE IN THE
VIEW IT TOOK OF THE SITUATION WITH WHICH IT WAS PRESENTED AND WITH
WHICH IT WAS MORE FAMILIAR THAN THE PRINTED RECORD ALONE CAN REVEAL. 
THE WRIT OF HABEAS CORPUS WAS NOT A SUBSTITUTE FOR THE PENDING APPEAL,
AND WAS THEREFORE NOT IMPROVIDENTLY ENTERTAINED BY THE COURT BELOW. 

THIS BRINGS US TO THE MERITS.  THEY ARE CONTROLLED IN PRINCIPLE BY
PATTON V. UNITED STATES, 281 U.S. 276, AND JOHNSON V. ZERBST, 304 U.S.
458.  THE SHORT OF THE MATTER IS THAT AN ACCUSED, IN THE EXERCISE OF A
FREE AND INTELLIGENT CHOICE, AND WITH THE CONSIDERED APPROVAL OF THE
COURT, MAY WAIVE TRIAL BY JURY, AND SO LIKEWISE MAY HE COMPETENTLY AND
INTELLIGENTLY WAIVE HIS CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL. 
THERE IS NOTHING IN THE CONSTITUTION TO PREVENT AN ACCUSED FROM
CHOOSING TO HAVE HIS FATE TRIED BEFORE A JUDGE WITHOUT A JURY EVEN
THOUGH, IN DECIDING WHAT IS BEST FOR HIMSELF, HE FOLLOWS THE GUIDANCE
OF HIS OWN WISDOM AND NOT THAT OF A LAWYER.  IN TAKING A CONTRARY VIEW,
THE COURT BELOW APPEARS TO HAVE BEEN LARGELY INFLUENCED BY THE
RADIATIONS OF THIS COURT'S OPINION IN GLASSER V. UNITED STATES, 315
U.S. 60.  BUT PATTON V. UNITED STATES, SUPRA, AND JOHNSON V. ZERBST,
SUPRA, WERE LEFT WHOLLY UNIMPAIRED BY THE RULING IN THE GLASSER CASE. 

CERTAIN SAFEGUARDS ARE ESSENTIAL TO CRIMINAL JUSTICE.  THE COURT MUST
BE UNCOERCED, MOORE V. DEMPSEY, 261 U.S. 86, AND IT MUST HAVE NO
INTEREST OTHER THAN THE PURSUIT OF JUSTICE, TUMEY V. OHIO, 273 U.S.
510.  THE ACCUSED MUST HAVE AMPLE OPPORTUNITY TO MEET THE CASE OF THE
PROSECUTION.  TO THAT END, THE SIXTH AMENDMENT OF THE CONSTITUTION
ABOLISHED THE RIGORS OF THE COMMON LAW BY AFFORDING ONE CHARGED WITH
CRIME THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE, JOHNSON V. ZERBST, 304
U.S. 458.  SUCH ASSISTANCE "IN THE PARTICULAR SITUATION" OF "IGNORANT
DEFENDANTS IN A CAPITAL CASE" LED TO RECOGNITION THAT "THE BENEFIT OF
COUNSEL WAS ESSENTIAL TO THE SUBSTANCE OF A HEARING," AS GUARANTEED BY
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, IN CRIMINAL
PROSECUTIONS IN THE STATE COURTS.  PALKO V. CONNECTICUT, 302 U.S. 319,
327.  COMPARE POWELL V. ALABAMA, 287 U.S. 45, AND BETTS V. BRADY, 316
U.S. 455.  THE RELATION OF TRIAL BY JURY TO CIVIL RIGHTS - ESPECIALLY
IN CRIMINAL CASES - IS FULLY REVEALED BY THE HISTORY WHICH GAVE RISE TO
THE PROVISIONS OF THE CONSTITUTION WHICH GUARANTEE THAT RIGHT.  ARTICLE
III, SEC. 2, PARAGRAPH 3; SIXTH AMENDMENT; SEVENTH AMENDMENT.  THAT
HISTORY IS SUCCINCTLY SUMMARIZED IN THE DECLARATION OF INDEPENDENCE, IN
WHICH COMPLAINT WAS MADE THAT THE COLONIES WERE DEPRIVED, "IN MANY
CASES, OF THE BENEFITS OF TRIAL BY JURY."  BUT PROCEDURAL DEVICES
ROOTED IN EXPERIENCE WERE WRITTEN INTO THE BILL OF RIGHTS NOT AS
ABSTRACT RUBRICS IN AN ELEGANT CODE BUT IN ORDER TO ASSURE FAIRNESS AND
JUSTICE BEFORE ANY PERSON COULD BE DEPRIVED OF "LIFE, LIBERTY OR
PROPERTY." 

IT HARDLY OCCURRED TO THE FRAMERS OF THE ORIGINAL CONSTITUTION AND OF
THE BILL OF RIGHTS THAT AN ACCUSED, ACTING IN OBEDIENCE TO THE DICTATES
OF SELF-INTEREST OR THE PROMPTINGS OF CONSCIENCE, SHOULD BE PREVENTED
FROM SURRENDERING HIS LIBERTY BY ADMITTING HIS GUILT.  THE CONSTITUTION
DOES NOT COMPEL AN ACCUSED WHO ADMITS HIS GUILT TO STAND TRIAL AGAINST
HIS OWN WISHES.  LEGISLATION APART, NO SOCIAL POLICY CALLS FOR THE
ADOPTION BY THE COURTS OF AN INEXORABLE RULE THAT GUILT MUST BE
DETERMINED ONLY BY TRIAL AND NOT BY ADMISSION.  A PLEA OF GUILT
EXPRESSES THE DEFENDANT'S BELIEF THAT HIS ACTS WERE PROSCRIBED BY LAW
AND THAT HE CANNOT SUCCESSFULLY BE DEFENDED.  IT IS TRUE, OF COURSE,
THAT GUILT UNDER SEC. 215 OF THE CRIMINAL CODE, WHICH MAKES IT A CRIME
TO USE THE MAILS TO DEFRAUD, DEPENDS UPON ANSWERS TO QUESTIONS OF LAW
RAISED BY APPLICATION OF THE STATUTE TO PARTICULAR FACTS.  IT IS
EQUALLY TRUE THAT PROSECUTIONS UNDER OTHER PROVISIONS OF THE CRIMINAL
CODE MAY RAISE EVEN MORE DIFFICULT AND COMPLEX QUESTIONS OF LAW.  BUT
SUCH QUESTIONS ARE NO LESS ABSENT WHEN A MAN PLEADS GUILTY THAN WHEN HE
RESISTS AN ACCUSATION OF CRIME.  AND NOT EVEN NOW IS IT SUGGESTED THAT
A LAYMAN CANNOT PLEAD GUILTY UNLESS HE HAS THE OPINION OF A LAWYER ON
THE QUESTIONS OF LAW THAT MIGHT ARISE IF HE DID NOT ADMIT HIS GUILT. 
PLAINLY, THE ENGRAFTING OF SUCH A REQUIREMENT UPON THE CONSTITUTION
WOULD BE A GRATUITOUS DISLOCATION OF THE PROCESSES OF JUSTICE.  THE
TASK OF JUDGING THE COMPETENCE OF A PARTICULAR ACCUSED CANNOT BE
ESCAPED BY ANNOUNCING DELUSIVELY SIMPLE RULES OF TRIAL PROCEDURE WHICH
JUDGES MUST MECHANICALLY FOLLOW.  THE QUESTION IN EACH CASE IS WHETHER
THE ACCUSED WAS COMPETENT TO EXERCISE AN INTELLIGENT, INFORMED JUDGMENT
- AND FOR DETERMINATION OF THIS QUESTION IT IS OF COURSE RELEVANT
WHETHER HE HAD THE ADVICE OF COUNSEL.  BUT IT IS QUITE ANOTHER MATTER
TO SUGGEST THAT THE CONSTITUTION UNQUALIFIEDLY DEEMS AN ACCUSED
INCOMPETENT UNLESS HE DOES HAVE THE ADVICE OF COUNSEL.  IF A LAYMAN IS
TO BE PRECLUDED FROM DEFENDING HIMSELF BECAUSE THE CONSTITUTION IS SAID
TO MAKE HIM HELPLESS WITHOUT A LAWYER'S ASSISTANCE ON QUESTIONS OF LAW
WHICH ABSTRACTLY UNDERLIE ALL FEDERAL CRIMINAL PROSECUTIONS, IT OUGHT
NOT TO MATTER WHETHER THE DECISION HE IS CALLED UPON TO MAKE IS THAT OF
PLEADING GUILTY OR OF WAIVING A PARTICULAR MODE OF TRIAL.  EVERY
CONVICTION, INCLUDING THE CONSIDERABLE NUMBER BASED UPON PLEAS OF
GUILTY, PRESUPPOSES AT LEAST A TACIT DISPOSITION OF THE LEGAL QUESTIONS
INVOLVED. 

WE HAVE ALREADY HELD THAT ONE CHARGED WITH A SERIOUS FEDERAL CRIME
MAY DISPENSE WITH HIS CONSTITUTIONAL RIGHT TO JURY TRIAL, WHERE THIS
ACTION IS TAKEN WITH HIS EXPRESS, INTELLIGENT CONSENT, WHERE THE
GOVERNMENT ALSO CONSENTS, AND WHERE SUCH ACTION IS APPROVED BY THE
RESPONSIBLE JUDGMENT OF THE TRIAL COURT.  PATTON V. UNITED STATES, 281
U.S. 276.  FN3  AND WHETHER OR NOT THERE IS AN INTELLIGENT, COMPETENT,
SELF-PROTECTING WAIVER OF JURY TRIAL BY AN ACCUSED MUST DEPEND UPON THE
UNIQUE CIRCUMSTANCES OF EACH CASE.  THE LESS RIGOROUS ENFORCEMENT OF
THE RULES OF EVIDENCE, THE GREATER INFORMALITY IN TRIAL PROCEDURE -
THESE ARE NOT THE ONLY ADVANTAGES THAT THE ABSENCE OF A JURY MAY AFFORD
TO A LAYMAN WHO PREFERS TO MAKE HIS OWN DEFENSE.  IN A VARIETY OF
SUBTLE WAYS TRIAL BY JURY MAY BE RESTRICTIVE OF A LAYMAN'S
OPPORTUNITIES TO PRESENT HIS CASE AS FREELY AS HE WISHES.  AND SINCE
TRIAL BY JURY CONFERS BURDENS AS WELL AS BENEFITS, AN ACCUSED SHOULD BE
PERMITTED TO FOREGO ITS PRIVILEGES WHEN HIS COMPETENT JUDGMENT COUNSELS
HIM THAT HIS INTERESTS ARE SAFER IN THE KEEPING OF THE JUDGE THAN OF
THE JURY. 

BUT WE ARE ASKED HERE TO HOLD THAT AN ACCUSED PERSON CANNOT WAIVE
TRIAL BY JURY, NO MATTER HOW FREELY AND UNDERSTANDINGLY HE SURRENDERS
THAT RIGHT, UNLESS HE ACTS ON A LAWYER'S ADVICE.  IN OTHER WORDS,
ALTHOUGH A SHREWD AND EXPERIENCED LAYMAN MAY, FOR HIS OWN SUFFICIENT
REASONS, CONDUCT HIS OWN DEFENSE IF HE PREFERS TO DO SO, NEVERTHELESS
IF HE DOES DO SO THE CONSTITUTION REQUIRES THAT HE MUST DEFEND HIMSELF
BEFORE A JURY AND NOT BEFORE A JUDGE.  BUT WE FIND NOTHING IN THE
CONSTITUTION, OR IN THE GREAT HISTORIC EVENTS WHICH GAVE RISE TO IT, OR
THE HISTORY TO WHICH IT HAS GIVEN RISE, TO JUSTIFY SUCH INTERPOLATION
INTO THE CONSTITUTION AND SUCH RESTRICTION UPON THE RATIONAL
ADMINISTRATION OF CRIMINAL JUSTICE. 

THE RIGHT TO ASSISTANCE OF COUNSEL AND THE CORRELATIVE RIGHT TO
DISPENSE WITH A LAWYER'S HELP ARE NOT LEGAL FORMALISMS.  THEY REST ON
CONSIDERATIONS THAT GO TO THE SUBSTANCE OF AN ACCUSED'S POSITION BEFORE
THE LAW.  THE PUBLIC CONSCIENCE MUST BE SATISFIED THAT FAIRNESS
DOMINATES THE ADMINISTRATION OF JUSTICE.  AN ACCUSED MUST HAVE THE
MEANS OF PRESENTING HIS BEST DEFENSE.  HE MUST HAVE TIME AND FACILITIES
FOR INVESTIGATION AND FOR THE PRODUCTION OF EVIDENCE.  BUT EVIDENCE AND
TRUTH ARE OF NO AVAIL UNLESS THEY CAN BE ADEQUATELY PRESENTED. 
ESSENTIAL FAIRNESS IS LACKING IF AN ACCUSED CANNOT PUT HIS CASE
EFFECTIVELY IN COURT.  BUT THE CONSTITUTION DOES NOT FORCE A LAWYER
UPON A DEFENDANT.  HE MAY WAIVE HIS CONSTITUTIONAL RIGHT TO ASSISTANCE
OF COUNSEL IF HE KNOWS WHAT HE IS DOING AND HIS CHOICE IS MADE WITH
EYES OPEN.  JOHNSON V. ZERBST, 304 U.S. 458, 468-69. 

REFERRING TO JURY TRIALS, MR. JUSTICE CARDOZO, SPEAKING FOR THE
COURT, HAD OCCASION TO SAY, "FEW WOULD BE SO NARROW OR PROVINCIAL AS TO
MAINTAIN THAT A FAIR AND ENLIGHTENED SYSTEM OF JUSTICE WOULD BE
IMPOSSIBLE WITHOUT THEM."  PALKO V. CONNECTICUT, 302 U.S. AT 325. 
PUTTING THIS THOUGHT IN MORE GENERALIZED FORM, THE PROCEDURAL
SAFEGUARDS OF THE BILL OF RIGHTS ARE NOT TO BE TREATED AS MECHANICAL
RIGIDITIES.  WHAT WERE CONTRIVED AS PROTECTIONS FOR THE ACCUSED SHOULD
NOT BE TURNED INTO FETTERS.  TO ASSERT AS AN ABSOLUTE THAT A LAYMAN, NO
MATTER HOW WISE OR EXPERIENCED HE MAY BE, IS INCOMPETENT TO CHOOSE
BETWEEN JUDGE AND JURY AS THE TRIBUNAL FOR DETERMINING HIS GUILT OR
INNOCENCE, SIMPLY BECAUSE A LAWYER HAS NOT ADVISED HIM ON THE CHOICE,
IS TO DOGMATIZE BEYOND THE BOUNDS OF LEARNING OR EXPERIENCE.  WERE WE
SO TO HOLD, WE WOULD IMPLIEDLY CONDEMN THE ADMINISTRATION OF CRIMINAL
JUSTICE IN STATES DEEMED OTHERWISE ENLIGHTENED, MERELY BECAUSE IN THEIR
COURTS THE VAST MAJORITY OF CRIMINAL CASES ARE TRIED BEFORE A JUDGE
WITHOUT A JURY.  TO DENY AN ACCUSED A CHOICE OF PROCEDURE IN
CIRCUMSTANCES IN WHICH HE, THOUGH A LAYMAN, IS AS CAPABLE AS ANY LAWYER
OF MAKING AN INTELLIGENT CHOICE, IS TO IMPAIR THE WORTH OF GREAT
CONSTITUTIONAL SAFEGUARDS BY TREATING THEM AS EMPTY VERBALISMS. 

UNDERLYING SUCH DOGMATISM IS DISTRUST OF THE ABILITY OF COURTS TO
ACCOMMODATE JUDGMENT TO THE VARYING CIRCUMSTANCES OF INDIVIDUAL CASES. 
BUT THIS IS TO EXPRESS WANT OF FAITH IN THE VERY TRIBUNALS WHICH ARE
CHARGED WITH ENFORCEMENT OF THE CONSTITUTION.  "UNIVERSAL DISTRUST,"
MR. JUSTICE HOLMES ADMONISHED US, "CREATES UNIVERSAL INCOMPETENCE." 
GRAHAM V. UNITED STATES, 231 U.S. 474, 480.  WHEN THE ADMINISTRATION OF
THE CRIMINAL LAW IN THE FEDERAL COURTS IS HEDGED ABOUT AS IT IS BY THE
CONSTITUTIONAL SAFEGUARDS FOR THE PROTECTION OF AN ACCUSED, TO DENY HIM
IN THE EXERCISE OF HIS FREE CHOICE THE RIGHT TO DISPENSE WITH SOME OF
THESE SAFEGUARDS (WHEN SUCH SURRENDERS ARE AS JEALOUSLY GUARDED AS THEY
ARE BY OUR RULINGS IN PATTON V. UNITED STATES, SUPRA, AND JOHNSON V.
ZERBST, SUPRA), AND TO BASE SUCH DENIAL ON AN ARBITRARY RULE THAT A MAN
CANNOT CHOOSE TO CONDUCT HIS DEFENSE BEFORE A JUDGE RATHER THAN A JURY
UNLESS, AGAINST HIS WILL, HE HAS A LAWYER TO ADVISE HIM, ALTHOUGH HE
REASONABLY DEEMS HIMSELF THE BEST ADVISOR FOR HIS OWN NEEDS, IS TO
IMPRISON A MAN IN HIS PRIVILEGES AND CALL IT THE CONSTITUTION.  FOR IT
IS NEITHER OBNOZIOUS TO HUMANE STANDARDS FOR THE ADMINISTRATION OF
JUSTICE AS THESE HAVE BEEN WRITTEN INTO THE CONSTITUTION, NOR VIOLATIVE
OF THE RIGHTS OF ANY PERSON ACCUSED OF CRIME WHO IS CAPABLE OF WEIGHING
HIS OWN BEST INTEREST, TO PERMIT HIM TO CONDUCT HIS OWN DEFENSE IN A
TRIAL BEFORE A JUDGE WITHOUT A JURY, SUBJECT AS SUCH TRIAL IS TO PUBLIC
SCRUTINY AND AMENABLE AS IT IS TO THE CORRECTIVE OVERSIGHT OF AN
APPELLATE TRIBUNAL AND ULTIMATELY OF THE SUPREME COURT OF THE NATION. 

ONCE WE REJECT SUCH A DOCTRINAIRE VIEW OF CRIMINAL JUSTICE AND OF THE
CONSTITUTION, THERE IS AN END TO THIS CASE.  THE PATTON DECISION LEFT
NO ROOM FOR DOUBT THAT A DETERMINATION OF GUILT BY A COURT AFTER WAIVER
OF JURY TRIAL COULD NOT BE SET ASIDE AND A NEW TRIAL ORDERED EXCEPT
UPON A PLAIN SHOWING THAT SUCH WAIVER WAS NOT FREELY AND INTELLIGENTLY
MADE.  IF THE RESULT OF THE ADJUDICATORY PROCESS IS NOT TO BE SET AT
NAUGHT, IT IS NOT ASKING TOO MUCH THAT THE BURDEN OF SHOWING ESSENTIAL
UNFAIRNESS BE SUSTAINED BY HIM WHO CLAIMS SUCH INJUSTICE AND SEEKS TO
HAVE THE RESULT SET ASIDE, AND THAT IT BE SUSTAINED NOT AS A MATTER OF
SPECULATION BUT AS A DEMONSTRABLE REALITY.  SIMPLY BECAUSE A RESULT
THAT WAS INSISTENTLY INVITED, NAMELY, A VERDICT BY A COURT WITHOUT A
JURY, DISAPPOINTED THE HOPES OF THE ACCUSED, OUGHT NOT TO BE SUFFICIENT
FOR REJECTING IT.  AND IF THE RECORD BEFORE US DOES NOT SHOW AN
INTELLIGENT AND COMPETENT WAIVER OF THE RIGHT TO THE ASSISTANCE OF
COUNSEL BY A DEFENDANT WHO DEMANDED AGAIN AND AGAIN THAT THE JUDGE TRY
HIM, AND WHO IN HIS PERSISTENCE OF SUCH A CHOICE KNEW WHAT HE WAS
ABOUT, IT WOULD BE DIFFICULT TO CONCEIVE OF A SET OF CIRCUMSTANCES IN
WHICH THERE WAS SUCH A FREE CHOICE BY A SELF-DETERMINING INDIVIDUAL. 

THE ORDER OF THE CIRCUIT COURT OF APPEALS MUST THEREFORE BE SET ASIDE
AND THE CAUSE REMANDED TO THAT COURT FOR SUCH FURTHER PROCEEDINGS, NOT
INCONSISTENT WITH THIS OPINION, AS MAY BE APPROPRIATE.  SO ORDERED. 

FN1  MCCANN HAD BROUGHT SUIT IN 1933 AGAINST THE NEW YORK STOCK
EXCHANGE, ITS OFFICERS AND MEMBERS, THE BETTER BUSINESS BUREAU OF NEW
YORK, AND A LARGE NUMBER OF OTHER PERSONS, SEEKING THIRTY MILLION
DOLLARS DAMAGES FOR CONSPIRACY IN RESTRAINT OF TRADE.  HE REPRESENTED
HIMSELF IN THIS EXTENSIVE LITIGATION, AND PERSONALLY BROUGHT APPEALS TO
THE CIRCUIT COURT OF APPEALS AND TO THIS COURT.  SEE MCCANN V. NEW YORK
STOCK EXCHANGE, 80 F.2D 211; 107 F.2D 908; 309 U.S. 684. 

FN2  FELONY, IT MAY NOT BE IRRELEVANT TO NOTE, IS A VERBAL SURVIVAL
WHICH HAS BEEN EMPTIED OF ITS HISTORIC CONTENT.  UNDER THE FEDERAL
CRIMINAL CODE ALL OFFENSES PUNISHABLE BY DEATH OR IMPRISONMENT FOR MORE
THAN A YEAR ARE FELONIES.  SEC. 335 OF THE CRIMINAL CODE, 18 U.S.C.
SEC. 541. 

FN3  THE RULING OF THE PATTON CASE, NAMELY, THAT THE PROVISIONS OF
THE CONSTITUTION DEALING WITH TRIAL BY JURY IN THE FEDERAL COURTS WERE
"MEANT TO CONFER A RIGHT UPON THE ACCUSED WHICH HE MAY FOREGO AT HIS
ELECTION," 281 U.S. AT 298, WAS EXPRESSLY RECOGNIZED AND ACTED UPON BY
CONGRESS IN THE ACT OF MARCH 8, 1934, C. 49, 48 STAT. 399, WHICH
EMPOWERED THE SUPREME COURT TO PRESCRIBE RULES OF PRACTICE AND
PROCEDURE WITH RESPECT TO "PROCEEDINGS AFTER VERDICT, OR FINDING OF
GUILT BY THE COURT IF A JURY HAS BEEN WAIVED, OR PLEA OF GUILTY, IN
CRIMINAL CASES IN DISTRICT COURTS OF THE UNITED STATES.  ...  "
(ITALICS ADDED.)  COMPARE H. REP. NO. 858, SEN. REP. NO. 257, 73D
CONG., 2D SESS. 

MR. JUSTICE DOUGLAS, DISSENTING: 

THE PATTON CASE (281 U.S. 276) HELD THAT A DEFENDANT REPRESENTED BY
COUNSEL MIGHT WAIVE UNDER CERTAIN CIRCUMSTANCES TRIAL BY A JURY OF
TWELVE AND SUBMIT TO TRIAL BY A JURY OF ONLY ELEVEN.  IN VIEW OF THE
STRICTNESS OF THE CONSTITUTIONAL MANDATES, I AM BY NO MEANS CONVINCED
THAT IT FOLLOWS THAT AN ENTIRE JURY MAY BE WAIVED.  BUT ASSUMING
ARGUENDO THAT IT MAY BE, I THINK THE RESPONDENT SHOULD HAVE HAD THE
BENEFIT OF LEGAL ADVICE BEFORE HIS WAIVER OF A JURY TRIAL WAS ACCEPTED
BY THE DISTRICT COURT.  FOR I DO NOT BELIEVE THAT WE CAN SAFELY ASSUME
THAT IN ABSENCE OF LEGAL ADVICE A WAIVER BY A LAYMAN OF HIS
CONSTITUTIONAL RIGHT TO A JURY TRIAL WAS INTELLIGENT AND COMPETENT IN
SUCH A CASE AS THIS. 

RESPONDENT WAS INDICTED UNDER THE MAIL FRAUD STATUTE.  35 STAT. 1130,
18 U.S.C. SEC. 338.  IT SUBJECTS TO FINE OR IMPRISONMENT ONE WHO
"HAVING DEVISED OR INTENDING TO DEVISE ANY SCHEME OR ARTIFICE TO
DEFRAUD  ...  SHALL, FOR THE PURPOSE OF EXECUTING SUCH SCHEME OR
ARTIFICE OR ATTEMPTING SO TO DO, PLACE, OR CAUSE TO BE PLACED, ANY
LETTER, POSTAL CARD, PACKAGE, WRITING, CIRCULAR, PAMPHLET, OR
ADVERTISEMENT  ...  IN ANY POST-OFFICE  ...  OR OTHER LETTER BOX OF THE
UNITED STATES."  IT WOULD BE UNLIKELY THAT A LAYMAN WITHOUT THE BENEFIT
OF LEGAL ADVICE WOULD UNDERSTAND THE LIMITED NATURE OF THE DEFENSES
AVAILABLE UNDER THAT STATUTE OR THE SCOPE OF THE ULTIMATE ISSUES ON
WHICH THE QUESTION OF GUILT USUALLY TURNS.  WITHOUT THAT UNDERSTANDING
I DO NOT SEE HOW AN INTELLIGENT CHOICE BETWEEN TRIAL BY JUDGE OR TRIAL
BY JURY COULD BE MADE. 

THE BROAD SWEEP OF THE STATUTE HAS NOT BEEN RESTRICTED BY JUDICIAL
CONSTRUCTION.  WHAT MIGHT APPEAR TO A LAYMAN AS A COMPLETE DEFENSE HAS
COMMONLY BEEN DENIED BY THE COURTS IN KEEPING WITH THE POLICY OF
CONGRESS TO DRAW TIGHT THE NET AROUND THOSE WHO TAX INGENUITY IN
DEVISING FRAUDULENT SCHEMES.  THUS AN INDICTMENT WILL BE UPHELD OR A
CONVICTION SUSTAINED THOUGH THE DEFENDANT DID NOT INTEND TO USE THE
MAILS AT THE TIME THE SCHEME WAS DESIGNED,  FN1  THOUGH NO ONE WAS
DEFRAUDED OR SUFFERED ANY LOSS,  FN2  THOUGH THE DEFENDANT DID NOT
INTEND TO RECEIVE  FN3  OR DID NOT RECEIVE FN4  ANY BENEFIT FROM THE
SCHEME, THOUGH THE DEFENDANT ACTUALLY BELIEVED THAT HIS PLAN WOULD IN
THE END BENEFIT THE PERSONS SOLICITED,  FN5  THOUGH THE MEANS WERE
INEFFECTIVE FOR CARRYING OUT THE SCHEME,  FN6  AND, PERHAPS, EVEN
THOUGH THE MAILS WERE USED NOT FOR SOLICITATION BUT ONLY IN COLLECTION
OF CHECKS RECEIVED PURSUANT TO THE PLAN.  FN7  IN OTHER WORDS, THE
DEFENSES IN LAW ARE FEW AND FAR BETWEEN.  AS A PRACTICAL MATTER, IF THE
MAILS WERE EMPLOYED AT ANY STAGE, THE QUESTION OF GUILT TURNS ON
WHETHER THE DEFENDANT HAD A FRAUDULENT INTENT.  THAT IS THE SIGNIFICANT
FACT.  DURLAND V. UNITED STATES, 161 U.S. 306, 313. 

I THINK A LAYMAN NORMALLY WOULD NEED LEGAL ADVICE TO KNOW THAT MUCH. 
AND IT SEEMS TO ME UNLIKELY THAT HE WOULD BE CAPABLE OF APPRAISING HIS
CHANCES AS BETWEEN JUDGE AND JURY WITHOUT SUCH ADVICE.  WITHOUT IT HE
MIGHT WELL CONCLUDE THAT HE HAD ADEQUATE DEFENSES ON WHICH A JUDGE
COULD BETTER PASS THAN A JURY.  WITH SUCH ADVICE HE MIGHT WELL PAUSE TO
ENTRUST THE QUESTION OF HIS INTENT TO A PARTICULAR JUDGE, RATHER THAN
TO A JURY OF HIS PEERS DRAWN FROM THE COMMUNITY WHERE MOST OF THE
TRANSACTIONS TOOK PLACE AND INSTRUCTED TO ACQUIT IF THEY HAD A
REASONABLE DOUBT.  ON THE OTHER HAND, IF HE HAD A FULL UNDERSTANDING OF
THE ISSUES, HE MIGHT CONCEIVABLY DEEM IT A MATTER OF LARGE IMPORTANCE
THAT HE BE TRIED BY THE JUDGE RATHER THAN A JURY.  THE POINT IS THAT WE
SHOULD NOT LEAVE TO SHEER SPECULATION THE QUESTION WHETHER HIS WAIVER
OF A JURY TRIAL WAS INTELLIGENT AND COMPETENT.  YET, ON THIS RECORD WE
CAN ONLY SPECULATE, SINCE ALL WE KNOW IS THAT RESPONDENT PROFESSED TO
HAVE "STUDIED LAW" AND THAT HE LOST A CIVIL SUIT WHICH HE HAD
PROSECUTED PRO SE.  MCCANN V. NEW YORK STOCK EXCHANGE, 107 F.2D 908. 
FURTHERMORE, THE RIGHT TO TRIAL BY JURY, LIKE THE RIGHT TO HAVE THE
ASSISTANCE OF COUNSEL, IS "TOO FUNDAMENTAL AND ABSOLUTE TO ALLOW COURTS
TO INDULGE IN NICE CALCULATIONS AS TO THE AMOUNT OF PREJUDICE ARISING
FROM ITS DENIAL."  GLASSER V. UNITED STATES, 315 U.S. 60, 76. 
MOREOVER, AS JUDGE LEARNED HAND STATED IN THE COURT BELOW, THE ANSWER
TO THE QUESTION WHETHER THE WAIVER WAS INTELLIGENT SHOULD HARDLY BE
MADE TO DEPEND ON "THE OUTCOME OF A PRELIMINARY INQUIRY AS TO THE
COMPETENCY" OF THE PARTICULAR LAYMAN.  IF THIS CONSTITUTIONAL RIGHT IS
TO BE JEALOUSLY PROTECTED, THERE SHOULD BE A RELIABLE OBJECTIVE
STANDARD BY WHICH THE TRIAL COURT SATISFIES ITSELF THAT THE LAYMAN WHO
WAIVES TRIAL BY JURY IN A CASE LIKE THIS HAS A FULL UNDERSTANDING OF
THE CONSEQUENCES.  DILLINGHAM V. UNITED STATES, 76 F.2D 36, 39.  AT
LEAST, WHERE THE TRIAL JUDGE FAILS TO INFORM HIM, THE ONLY SAFE AND
PRACTICAL ALTERNATIVE IN A CASE LIKE THE PRESENT ONE IS TO REQUIRE THE
APPOINTMENT OF COUNSEL.  ONLY THEN SHOULD WE SAY THAT THE TRIAL JUDGE
HAS EXERCISED THAT "SOUND AND ADVISED DISCRETION" WHICH THE PATTON CASE
REQUIRED EVEN BEFORE A WAIVER OF ONE JUROR WAS ACCEPTED.  281 U.S. P.
312. 

THE QUESTION FOR US IS NOT WHETHER A JUDGE SHOULD BE TRUSTED AS MUCH
AS A JURY TO DETERMINE THE QUESTION OF GUILT.  WE ARE DEALING HERE WITH
ONE OF THE GREAT HISTORIC CIVIL LIBERTIES - THE RIGHT TO TRIAL BY
JURY.  ARTICLE III, SEC. 2 AND THE SIXTH AMENDMENT, WHICH GRANT THAT
RIGHT, CONTAIN NO EXCEPTION, THOUGH A FEW HAVE BEEN IMPLIED.  SEE EX
PARTE QUIRIN, ANTE, P. 1.  WE SHOULD NOT PERMIT THE EXCEPTIONS TO BE
ENLARGED BY WAIVER UNLESS IT IS PLAIN AND BEYOND DOUBT THAT THE WAIVER
WAS FREELY AND INTELLIGENTLY MADE.  THE PATTON CASE SURROUNDS SUCH A
WAIVER WITH NUMEROUS SAFEGUARDS EVEN WHERE, AS IN THAT CASE, THE WAIVER
WAS MADE BY ONE WHO WAS REPRESENTED BY COUNSEL.  WE SHOULD BE EVEN MORE
STRICT AND EXACTING IN CASE THE WAIVER IS MADE BY A LAYMAN ACTING ON
HIS OWN.  THEN THE REASONS FOR INDULGING EVERY REASONABLE PRESUMPTION
AGAINST A WAIVER OF "FUNDAMENTAL CONSTITUTIONAL RIGHTS" (JOHNSON V.
ZERBST, 304 U.S. 458, 464) BECOME EVEN MORE COMPELLING. 

THE FACT THAT A DEFENDANT ORDINARILY MAY DISPENSE WITH A TRIAL BY
ADMITTING HIS GUILT IS NO REASON FOR ACCEPTING THIS LAYMAN'S WAIVER OF
A JURY TRIAL.  WHAT THE CONSTITUTION REQUIRES IS THAT THE "TRIAL" OF A
CRIME "SHALL BE BY JURY."  ART. III, SEC. 2.  AND IT SPECIFIES THE
MACHINERY WHICH SHALL BE EMPLOYED IF A PLEA OF NOT GUILTY IS ENTERED
AND THE PROSECUTION IS PUT TO ITS PROOF.  MOREOVER, WE ARE NOT DEALING
HERE WITH ABSOLUTES.  NORMALLY, ADMISSION OF GUILT COULD PROPERLY BE
ACCEPTED WITHOUT MORE, SINCE ORDINARILY A DEFENDANT WOULD KNOW WHETHER
OR NOT HE WAS GUILTY OF THE CRIME CHARGED.  BUT THERE MIGHT CONCEIVABLY
BE AN EXCEPTION, WHERE, FOR EXAMPLE, THE ISSUE OF GUILT TURNED NOT ONLY
ON THE ADMITTED FACTS BUT UPON THE CONSTRUCTION OF A STATUTE.  EACH
CASE OF NECESSITY TURNS ON ITS OWN FACTS.  NOR IS IT A SUFFICIENT
ANSWER TO SAY THAT IF LEGAL ADVICE IS REQUIRED FOR A WAIVER OF TRIAL BY
JURY, THEN BY THE SAME TOKEN A LAYMAN REPRESENTING HIMSELF COULD NOT
EXERCISE HIS OWN JUDGMENT CONCERNING ANY MATTER DURING THE TRIAL WITH
RESPECT TO WHICH A LAWYER MIGHT HAVE SUPERIOR KNOWLEDGE.  WHETHER THE
WAIVER OF COUNSEL FOR PURPOSES OF THE TRIAL MEETS THE EXACTING
STANDARDS OF JOHNSON V. ZERBST IS ONE THING.  WHETHER THAT DILUTION OF
CONSTITUTIONAL RIGHTS MAY BE COMPOUNDED BY A WAIVER OF TRIAL BY JURY IS
QUITE ANOTHER.  IT IS THE CUMULATIVE EFFECT OF THE SEVERAL WAIVERS OF
CONSTITUTIONAL RIGHTS IN A GIVEN CASE WHICH MUST BE GAUGED.  NOR CAN I
ACCEDE TO THE SUGGESTION OF THE PROSECUTION THAT A LAYMAN'S RIGHT TO
WAIVE TRIAL BY JURY IS SUCH AN IMPORTANT PART OF HIS HIGH PRIVILEGE TO
MANAGE HIS OWN CASE THAT ITS EXERCISE SHOULD BE FREELY ACCORDED.  THAT
ARGUMENT IS FAINTLY REMINISCENT OF THOSE NOTIONS OF FREEDOM OF CHOICE
AND LIBERTY OF CONTRACT WHICH LONG DENIED PROTECTION TO THE INDIVIDUAL
IN OTHER FIELDS. 

MR. JUSTICE BLACK AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 

FN1  UNITED STATES V. YOUNG, 232 U.S. 155. 

FN2  COWL V. UNITED STATES, 35 F.2D 794; UNITED STATES V. ROWE, 56
F.2D 747. 

FN3  KELLOGG V. UNITED STATES, 126 F. 323. 

FN4  CALNAY V. UNITED STATES, 1 F.2D 926; CHEW V. UNITED STATES, 9
F.2D 348. 

FN5  PANDOLFO V. UNITED STATES, 286 F. 8; FOSHAY V. UNITED STATES, 68
F.2D 205. 

FN6  SEE DURLAND V. UNITED STATES, 161 U.S. 306, 315. 

FN7  TINCHER V. UNITED STATES, 11 F.2D 18; BRADFORD V. UNITED STATES,
129 F.2D 274. 

BUT SEE DYHRE V. HUDSPETH, 106 F.2D 286; STAPP V. UNITED STATES, 120
F.2D 898. 

MR. JUSTICE MURPHY: 

I JOIN MY BROTHER DOUGLAS, BUT DESIRE TO ADD THE FOLLOWING VIEWS IN
DISSENT. 

THE CONSTITUTION PROVIDES:  "THE TRIAL OF ALL CRIMES,  ...  SHALL BE
BY JURY; ...  "  (ARTICLE III, SEC. 2), AND:  "IN ALL CRIMINAL
PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC
TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME
SHALL HAVE BEEN COMMITTED,  ...  "  (AMENDMENT VI).  BECAUSE OF THESE
PROVISIONS, THE FUNDAMENTAL NATURE OF JURY TRIAL,  FN1  AND ITS
BENEFICIAL EFFECTS AS A MEANS OF LEAVENING JUSTICE WITH THE SPIRIT OF
THE TIMES,  FN2  I DO NOT CONCEDE THAT THE RIGHT TO A JURY TRIAL CAN BE
WAIVED IN CRIMINAL PROCEEDINGS IN THE FEDERAL COURTS.  WHATEVER MAY BE
THE LOGIC OF THE MATTER, THERE IS A CONSIDERABLE PRACTICAL DIFFERENCE
BETWEEN TRIAL BY ELEVEN JURORS, THE SITUATION IN PATTON V. UNITED
STATES, 281 U.S. 276, AND TRIAL TO THE COURT, AND PRACTICALITY IS A
STURDY GUIDE TO THE PRESERVATION OF CONSTITUTIONAL GUARANTIES. 

BUT IF IT IS ASSUMED THAT JURY TRIAL, THE PRIZED PRODUCT OF THE
TRAVAIL OF THE PAST, CAN BE WAIVED BY AN ACCUSED, THERE SHOULD BE
COMPLIANCE WITH RIGOROUS STANDARDS, ADEQUATELY DESIGNED TO INSURE THAT
AN ACCUSED FULLY UNDERSTANDS HIS RIGHTS AND INTELLIGENTLY APPRECIATES
THE EFFECTS OF HIS STEP, BEFORE A COURT SHOULD ACCEPT SUCH A WAIVER. 
AMONG THOSE REQUIREMENTS IN THE CASE OF A LAYMAN DEFENDANT IN A
CRIMINAL PROCEEDING WHERE THE PUNISHMENT MAY BE SUBSTANTIAL, AS IN THE
INSTANT CASE, SHOULD BE THE RIGHT TO HAVE THE BENEFIT OF THE ADVICE OF
COUNSEL ON THE DESIRABILITY OF WAIVER.  OF COURSE THE CAPACITY OF
INDIVIDUALS TO APPRAISE THEIR INTERESTS VARIES, BUT SUCH A UNIFORM
GENERAL RULE WILL PROTECT THE RIGHTS OF ALL MUCH BETTER THAN A RULE
DEPENDING UPON THE FLUCTUATING FACTUAL VARIABLES OF THE INDIVIDUAL CASE
WHICH ARE OFTEN DIFFICULT TO EVALUATE ON THE BASIS OF THE COLD RECORD. 
IN MY OPINION THE CONSTITUTION REQUIRES THIS GENERAL RULE AS AN
ABSOLUTE RIGHT IF A JURY IS TO BE WAIVED AT ALL. 

FN1  COMPARE GLASSER V. UNITED STATES, 315 U.S. 60, 84-85, AND JACOB
V. NEW YORK CITY, 315 U.S. 752. 

FN2  THIS IS ADMIRABLY STATED BY JUDGE LEARNED HAND BELOW, 126 F.2D
AT 775-776. 
..END :











WILLIAMS V. NORTH CAROLINA, 317 U.S. 287 


NO. 29.  ARGUED OCTOBER 20, 1942.  - DECIDED DECEMBER 21, 1942.  - 220
N.C. 445, 17 S.E.2D 769, REVERSED. 


1.  WHERE A CONVICTION IN A CRIMINAL PROSECUTION IS BASED UPON A
GENERAL VERDICT THAT DOES NOT SPECIFY THE GROUND ON WHICH IT RESTS, AND
ONE OF THE GROUNDS UPON WHICH IT MAY REST IS INVALID UNDER THE FEDERAL
CONSTITUTION, THE JUDGMENT CAN NOT BE SUSTAINED.  STROMBERG V.
CALIFORNIA, 283 U.S. 359.  P. 292. 

2.  A MAN AND A WOMAN WENT FROM NORTH CAROLINA TO NEVADA AND, AFTER
RESIDING THERE FOR A TIME SUFFICIENT TO MEET THE REQUIREMENT OF A
NEVADA STATUTE, SECURED DECREES FROM A NEVADA COURT, DIVORCING THEM
FROM THEIR RESPECTIVE SPOUSES IN NORTH CAROLINA, THE STATE IN WHICH
THEY HAD BEEN MARRIED AND DOMICILED.  THEY THEN MARRIED EACH OTHER IN
NEVADA, RETURNED TO NORTH CAROLINA AND COHABITED THERE AS MAN AND
WIFE.  PROSECUTED UNDER A NORTH CAROLINA STATUTE FOR BIGAMOUS
COHABITATION, THEY SET UP IN DEFENSE THE NEVADA DECREES.  A GENERAL
VERDICT WAS RETURNED, AFTER INSTRUCTIONS PERMITTING THAT THE DECREES BE
DISREGARDED UPON EITHER OF TWO GROUNDS, (1) THAT A NEVADA DIVORCE
DECREE BASED ON SUBSTITUTED SERVICE, WHERE THE DEFENDANT MADE NO
APPEARANCE, COULD NOT BE RECOGNIZED IN NORTH CAROLINA, AND (2) THAT THE
DEFENDANTS WENT TO NEVADA, NOT TO ESTABLISH BONA FIDE RESIDENCE, BUT
SOLELY FOR THE PURPOSE OF TAKING ADVANTAGE OF THE LAWS OF THAT STATE TO
OBTAIN A DIVORCE THROUGH A FRAUD UPON THE NEVADA COURT.  HELD THAT, AS
IT COULD NOT BE DETERMINED ON THE RECORD THAT THE VERDICT WAS NOT BASED
SOLELY UPON THE FIRST GROUND - INVOLVING A CONSTRUCTION AND APPLICATION
OF THE FEDERAL CONSTITUTION,  - THE REVIEW IN THIS COURT MUST BE OF
THAT GROUND, LEAVING THE OTHER OUT OF CONSIDERATION.  PP. 289, 292. 

3.  IT SEEMS CLEAR THAT SEC. 9460, NEVADA COMP. L. 1929, IN REQUIRING
THAT THE PLAINTIFF IN A SUIT FOR DIVORCE SHALL HAVE "RESIDED" IN THE
STATE FOR A DESIGNATED PERIOD, MEANS A DOMICIL AS DISTINGUISHED FROM A
MERE RESIDENCE.  P. 298. 

4.  DECREES OF DIVORCE ARE MORE THAN IN PERSONAM JUDGMENTS,
INVOLVING, AS THEY DO, THE MARITAL STATUS OF THE PARTIES.  P. 298. 

5.  EACH STATE, BY VIRTUE OF ITS COMMAND OVER ITS DOMICILIARIES AND
ITS LARGE INTEREST IN THE INSTITUTION OF MARRIAGE, CAN ALTER WITHIN ITS
OWN BORDERS THE MARRIAGE STATUS OF THE SPOUSE DOMICILED THERE, EVEN
THOUGH THE OTHER SPOUSE BE ABSENT.  THERE IS NO CONSTITUTIONAL BARRIER
IF THE FORM AND NATURE OF THE SUBSTITUTED SERVICE MEET THE REQUIREMENTS
OF DUE PROCESS.  P. 298. 

6.  UNDER THE FULL FAITH AND CREDIT CLAUSE AND THE ACT OF MAY 26,
1790, WHERE A DECREE OF DIVORCE, GRANTED BY A STATE TO ONE WHO IS AT
THE TIME BONA FIDE DOMICILED THEREIN, IS RENDERED IN A PROCEEDING
COMPLYING WITH DUE PROCESS, SUCH DECREE, IF VALID UNDER THE LAWS OF
THAT STATE, IS BINDING UPON THE COURTS OF OTHER STATES, INCLUDING THE
STATE IN WHICH THE MARRIAGE WAS PERFORMED, AND WHERE THE OTHER PARTY TO
THE MARRIAGE WAS STILL DOMICILED WHEN THE DIVORCE WAS DECREED.  HADDOCK
V. HADDOCK, 201 U.S. 562, OVERRULED.  P. 299. 

7.  IN THIS CASE THE COURT MUST ASSUME THAT PETITIONERS EACH HAD A
BONA FIDE DOMICIL IN NEVADA, NOT THAT THEIR NEVADA DOMICIL WAS A SHAM. 
P. 302. 

8.  THE CASE DOES NOT PRESENT THE QUESTION WHETHER NORTH CAROLINA HAS
POWER TO REFUSE FULL FAITH AND CREDIT TO THE NEVADA DIVORCE DECREES
BECAUSE THEY WERE BASED ON RESIDENCE RATHER THAN DOMICIL, OR BECAUSE,
CONTRARY TO THE FINDINGS OF THE NEVADA COURT, NORTH CAROLINA FINDS THAT
NO BONA FIDE DOMICIL WAS ACQUIRED IN NEVADA.  P. 302. 

WILLIAMS ET AL. V. NORTH CAROLINA. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

CERTIORARI, 315 U.S. 795, TO REVIEW JUDGMENTS AFFIRMING SENTENCES FOR
BIGAMOUS COHABITATION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE TRIED AND CONVICTED OF BIGAMOUS COHABITATION UNDER
SEC. 4342 OF THE NORTH CAROLINA CODE,  FN1  1939, AND EACH WAS
SENTENCED FOR A TERM OF YEARS TO A STATE PRISON.  THE JUDGMENT OF
CONVICTION WAS AFFIRMED BY THE SUPREME COURT OF NORTH CAROLINA.  220
N.C. 445, 17 S.E.2D 769.  THE CASE IS HERE ON CERTIORARI. 

PETITIONER WILLIAMS WAS MARRIED TO CARRIE WYKE IN 1916 IN NORTH
CAROLINA AND LIVED WITH HER THERE UNTIL MAY, 1940.  PETITIONER HENDRIX
WAS MARRIED TO THOMAS HENDRIX IN 1920 IN NORTH CAROLINA AND LIVED WITH
HIM THERE UNTIL MAY, 1940.  AT THAT TIME PETITIONERS WENT TO LAS VEGAS,
NEVADA, AND ON JUNE 26, 1940, EACH FILED A DIVORCE ACTION IN THE NEVADA
COURT.  THE DEFENDANTS IN THOSE DIVORCE ACTIONS ENTERED NO APPEARANCE
NOR WERE THEY SERVED WITH PROCESS IN NEVADA.  IN THE CASE OF DEFENDANT
THOMAS HENDRIX, SERVICE BY PUBLICATION WAS HAD BY PUBLICATION OF THE
SUMMONS IN A LAS VEGAS NEWSPAPER AND BY MAILING A COPY OF THE SUMMONS
AND COMPLAINT TO HIS LAST POST-OFFICE ADDRESS.  FN2  IN THE CASE OF
DEFENDANT CARRIE WILLIAMS, A NORTH CAROLINA SHERIFF DELIVERED TO HER IN
NORTH CAROLINA A COPY OF THE SUMMONS AND COMPLAINT.  A DECREE OF
DIVORCE WAS GRANTED PETITIONER WILLIAMS BY THE NEVADA COURT ON AUGUST
26, 1940, ON THE GROUND OF EXTREME CRUELTY, THE COURT FINDING THAT "THE
PLAINTIFF HAS BEEN AND NOW IS A BONA FIDE AND CONTINUOUS RESIDENT OF
THE COUNTY OF CLARK, STATE OF NEVADA, AND HAD BEEN SUCH RESIDENT FOR
MORE THAN SIX WEEKS IMMEDIATELY PRECEDING THE COMMENCEMENT OF THIS
ACTION IN THE MANNER PRESCRIBED BY LAW."  FN3  THE NEVADA COURT GRANTED
PETITIONER HENDRIX A DIVORCE ON OCTOBER 4, 1940, ON THE GROUNDS OF
WILFUL NEGLECT AND EXTREME CRUELTY, AND MADE THE SAME FINDING AS TO
THIS PETITIONER'S BONA FIDE RESIDENCE IN NEVADA AS IT MADE IN THE CASE
OF WILLIAMS.  PETITIONERS WERE MARRIED TO EACH OTHER IN NEVADA ON
OCTOBER 4, 1940.  THEREAFTER THEY RETURNED TO NORTH CAROLINA WHERE THEY
LIVED TOGETHER UNTIL THE INDICTMENT WAS RETURNED.  PETITIONERS PLEADED
NOT GUILTY AND OFFERED IN EVIDENCE EXEMPLIFIED COPIES OF THE NEVADA
PROCEEDINGS, CONTENDING THAT THE DIVORCE DECREES AND THE NEVADA
MARRIAGE WERE VALID IN NORTH CAROLINA AS WELL AS IN NEVADA.  THE STATE
CONTENDED THAT SINCE NEITHER OF THE DEFENDANTS IN THE NEVADA ACTIONS
WAS SERVED IN NEVADA NOR ENTERED AN APPEARANCE THERE, THE NEVADA
DECREES WOULD NOT BE RECOGNIZED AS VALID IN NORTH CAROLINA.  ON THIS
ISSUE THE COURT CHARGED THE JURY IN SUBSTANCE THAT A NEVADA DIVORCE
DECREE BASED ON SUBSTITUTED SERVICE WHERE THE DEFENDANT MADE NO
APPEARANCE WOULD NOT BE RECOGNIZED IN NORTH CAROLINA, UNDER THE RULE OF
PRIDGEN V. PRIDGEN, 203 N.C. 533, 166 S.E. 591.  THE STATE FURTHER
CONTENDED THAT PETITIONERS WENT TO NEVADA NOT TO ESTABLISH A BONA FIDE
RESIDENCE BUT SOLELY FOR THE PURPOSE OF TAKING ADVANTAGE OF THE LAWS OF
THAT STATE TO OBTAIN A DIVORCE THROUGH FRAUD UPON THAT COURT.  ON THAT
ISSUE THE COURT CHARGED THE JURY THAT, UNDER THE RULE OF STATE V.
HERRON, 175 N.C. 754, 94 S.E. 698, THE DEFENDANTS HAD THE BURDEN OF
SATISFYING THE JURY, BUT NOT BEYOND A REASONABLE DOUBT, OF THE BONA
FIDES OF THEIR RESIDENCE IN NEVADA FOR THE REQUIRED TIME.  PETITIONERS
EXCEPTED TO THESE CHARGES.  THE SUPREME COURT OF NORTH CAROLINA IN
AFFIRMING THE JUDGMENT HELD THAT NORTH CAROLINA WAS NOT REQUIRED TO
RECOGNIZE THE NEVADA DECREES UNDER THE FULL FAITH AND CREDIT CLAUSE OF
THE CONSTITUTION (ART. IV, SEC. 1) BY REASON OF HADDOCK V. HADDOCK, 201
U.S. 562.  THE INTIMATION IN THE MAJORITY OPINION (220 N.C. PP. 460
464) THAT THE NEVADA DIVORCES WERE COLLUSIVE SUGGESTS THAT THE SECOND
THEORY ON WHICH THE STATE TRIED THE CASE MAY HAVE BEEN AN ALTERNATIVE
GROUND FOR THE DECISION BELOW, ADEQUATE TO SUSTAIN THE JUDGMENT UNDER
THE RULE OF BELL V. BELL, 181 U.S. 175 - A CASE IN WHICH THIS COURT
HELD THAT A DECREE OF DIVORCE WAS NOT ENTITLED TO FULL FAITH AND CREDIT
WHEN IT HAD BEEN GRANTED ON CONSTRUCTIVE SERVICE BY THE COURTS OF A
STATE IN WHICH NEITHER SPOUSE WAS DOMICILED.  BUT THERE ARE TWO REASONS
WHY WE DO NOT REACH THAT ISSUE IN THIS CASE.  IN THE FIRST PLACE, NORTH
CAROLINA DOES NOT SEEK TO SUSTAIN THE JUDGMENT BELOW ON THAT GROUND. 
MOREOVER IT ADMITS THAT THERE PROBABLY IS ENOUGH EVIDENCE IN THE RECORD
TO REQUIRE THAT PETITIONERS BE CONSIDERED "TO HAVE BEEN ACTUALLY
DOMICILED IN NEVADA."  IN THE SECOND PLACE, THE VERDICT AGAINST
PETITIONERS WAS A GENERAL ONE.  HENCE, EVEN THOUGH THE DOCTRINE OF BELL
V. BELL, SUPRA, WERE TO BE DEEMED APPLICABLE HERE, WE CANNOT DETERMINE
ON THIS RECORD THAT PETITIONERS WERE NOT CONVICTED ON THE OTHER THEORY
ON WHICH THE CASE WAS TRIED AND SUBMITTED, VIZ. THE INVALIDITY OF THE
NEVADA DECREES BECAUSE OF NEVADA'S LACK OF JURISDICTION OVER THE
DEFENDANTS IN THE DIVORCE SUITS.  THAT IS TO SAY, THE VERDICT OF THE
JURY FOR ALL WE KNOW MAY HAVE BEEN RENDERED ON THAT GROUND ALONE, SINCE
IT DID NOT SPECIFY THE BASIS ON WHICH IT RESTED.  IT THEREFORE FOLLOWS
HERE AS IN STROMBERG V. CALIFORNIA, 283 U.S. 359, 368, THAT IF ONE OF
THE GROUNDS FOR CONVICTION IS INVALID UNDER THE FEDERAL CONSTITUTION,
THE JUDGMENT CANNOT BE SUSTAINED.  NO REASON HAS BEEN SUGGESTED WHY THE
RULE OF THE STROMBERG CASE IS INAPPLICABLE HERE.  NOR HAS ANY REASON
BEEN ADVANCED WHY THE RULE OF THE STROMBERG CASE IS NOT BOTH
APPROPRIATE AND NECESSARY FOR THE PROTECTION OF RIGHTS OF THE ACCUSED. 
TO SAY THAT A GENERAL VERDICT OF GUILTY SHOULD BE UPHELD THOUGH WE
CANNOT KNOW THAT IT DID NOT REST ON THE INVALID CONSTITUTIONAL GROUND
ON WHICH THE CASE WAS SUBMITTED TO THE JURY, WOULD BE TO COUNTENANCE A
PROCEDURE WHICH WOULD CAUSE A SERIOUS IMPAIRMENT OF CONSTITUTIONAL
RIGHTS.  ACCORDINGLY, WE CANNOT AVOID MEETING THE HADDOCK V. HADDOCK
ISSUE IN THIS CASE BY SAYING THAT THE PETITIONERS ACQUIRED NO BONA FIDE
DOMICIL IN NEVADA.  IF THE CASE HAD BEEN TRIED AND SUBMITTED ON THAT
ISSUE ONLY, WE WOULD HAVE QUITE A DIFFERENT PROBLEM, AS BELL V. BELL
INDICATES.  WE HAVE NO OCCASION TO MEET THAT ISSUE NOW AND WE INTIMATE
NO OPINION ON IT.  HOWEVER IT MIGHT BE RESOLVED IN ANOTHER PROCEEDING,
WE CANNOT EVADE THE CONSTITUTIONAL ISSUE IN THIS CASE ON THE EASY
ASSUMPTION THAT PETITIONERS' DOMICIL IN NEVADA WAS A SHAM AND A FRAUD. 
RATHER, WE MUST TREAT THE PRESENT CASE FOR THE PURPOSE OF THE LIMITED
ISSUE BEFORE US PRECISELY THE SAME AS IF PETITIONERS HAD RESIDED IN
NEVADA FOR A TERM OF YEARS AND HAD LONG AGO ACQUIRED A PERMANENT ABODE
THERE.  IN OTHER WORDS, WE WOULD REACH THE QUESTION WHETHER NORTH
CAROLINA COULD REFUSE TO RECOGNIZE THE NEVADA DECREES BECAUSE, IN ITS
VIEW AND CONTRARY TO THE FINDINGS OF THE NEVADA COURT, PETITIONERS HAD
NO ACTUAL, BONA FIDE DOMICIL IN NEVADA, IF AND ONLY IF WE CONCLUDED
THAT HADDOCK V. HADDOCK WAS CORRECTLY DECIDED.  BUT WE DO NOT THINK IT
WAS. 

THE HADDOCK CASE INVOLVED A SUIT FOR SEPARATION AND ALIMONY, BROUGHT
IN NEW YORK BY THE WIFE ON PERSONAL SERVICE OF THE HUSBAND.  THE
HUSBAND PLEADED IN DEFENSE A DIVORCE DECREE OBTAINED BY HIM IN
CONNECTICUT WHERE HE HAD ESTABLISHED A SEPARATE DOMICIL.  THIS COURT
HELD THAT NEW YORK, THE MATRIMONIAL DOMICIL WHERE THE WIFE STILL
RESIDED, NEED NOT GIVE FULL FAITH AND CREDIT TO THE CONNECTICUT DECREE,
SINCE IT WAS OBTAINED BY THE HUSBAND WHO WRONGFULLY LEFT HIS WIFE IN
THE MATRIMONIAL DOMICIL, SERVICE ON HER HAVING BEEN OBTAINED BY
PUBLICATION AND SHE NOT HAVING ENTERED AN APPEARANCE IN THE ACTION. 
BUT WE DO NOT AGREE WITH THE THEORY OF THE HADDOCK CASE THAT, SO FAR AS
THE MARITAL STATUS OF THE PARTIES IS CONCERNED,  FN4  A DECREE OF
DIVORCE GRANTED UNDER SUCH CIRCUMSTANCES BY ONE STATE NEED NOT BE GIVEN
FULL FAITH AND CREDIT IN ANOTHER. 

ARTICLE IV, SEC. 1 OF THE CONSTITUTION NOT ONLY DIRECTS THAT "FULL
FAITH AND CREDIT SHALL BE GIVEN IN EACH STATE TO THE PUBLIC ACTS,
RECORDS, AND JUDICIAL PROCEEDINGS OF EVERY OTHER STATE" BUT ALSO
PROVIDES THAT "CONGRESS MAY BY GENERAL LAWS PRESCRIBE THE MANNER IN
WHICH SUCH ACTS, RECORDS AND PROCEEDINGS SHALL BE PROVED, AND THE
EFFECT THEREOF."  CONGRESS HAS EXERCISED THAT POWER.  BY THE ACT OF MAY
26, 1790, C. 11, 28 U.S.C. 687, CONGRESS HAS PROVIDED THAT JUDGMENTS
"SHALL HAVE SUCH FAITH AND CREDIT GIVEN TO THEM IN EVERY COURT WITHIN
THE UNITED STATES AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE
STATE FROM WHICH THEY ARE TAKEN."  CHIEF JUSTICE MARSHALL STATED IN
HAMPTON V. M'CONNEL, 3 WHEAT.  234, 235, THAT "THE JUDGMENT OF A STATE
COURT SHOULD HAVE THE SAME CREDIT, VALIDITY, AND EFFECT, IN EVERY OTHER
COURT IN THE UNITED STATES, WHICH IT HAD IN THE STATE WHERE IT WAS
PRONOUNCED, AND THAT WHATEVER PLEAS WOULD BE GOOD TO A SUIT THEREON IN
SUCH STATE, AND NONE OTHERS, COULD BE PLEADED IN ANY OTHER COURT IN THE
UNITED STATES."  THAT VIEW HAS SURVIVED SUBSTANTIALLY INTACT. 
FAUNTLEROY V. LUM, 210 U.S. 230.  THIS COURT ONLY RECENTLY STATED THAT
ART. IV, SEC. 1 AND THE ACT OF MAY 26, 1790 REQUIRE THAT "NOT SOME, BUT
FULL" FAITH AND CREDIT BE GIVEN JUDGMENTS OF A STATE COURT.  DAVIS V.
DAVIS, 305 U.S. 32, 40.  THUS, EVEN THOUGH THE CAUSE OF ACTION COULD
NOT BE ENTERTAINED IN THE STATE OF THE FORUM, EITHER BECAUSE IT HAD
BEEN BARRED BY THE LOCAL STATUTE OF LIMITATIONS OR CONTRAVENED LOCAL
POLICY, THE JUDGMENT THEREON OBTAINED IN A SISTER STATE IS ENTITLED TO
FULL FAITH AND CREDIT.  SEE CHRISTMAS V. RUSSELL, 5 WALL.  290;
FAUNTLEROY V. LUM, SUPRA; KENNEY V. SUPREME LODGE, 252 U.S. 411; TITUS
V. WALLICK, 306 U.S. 282, 291.  SOME EXCEPTIONS HAVE BEEN ENGRAFTED ON
THE RULE LAID DOWN BY CHIEF JUSTICE MARSHALL.  BUT AS STATED BY MR.
JUSTICE BRANDEIS IN BRODERICK V. ROSNER, 294 U.S. 629, 642, "THE ROOM
LEFT FOR THE PLAY OF CONFLICTING POLICIES IS A NARROW ONE."  SO FAR AS
JUDGMENTS ARE CONCERNED, THE DECISIONS,  FN5  AS DISTINGUISHED FROM
DICTA,  FN6  SHOW THAT THE ACTUAL EXCEPTIONS HAVE BEEN FEW AND FAR
BETWEEN, APART FROM HADDOCK V. HADDOCK.  FOR THIS COURT HAS BEEN
RELUCTANT TO ADMIT EXCEPTIONS IN CASE OF JUDGMENTS RENDERED BY THE
COURTS OF A SISTER STATE, SINCE THE "VERY PURPOSE" OF ART. IV, SEC. 1
WAS "TO ALTER THE STATUS OF THE SEVERAL STATES AS INDEPENDENT FOREIGN
SOVEREIGNTIES, EACH FREE TO IGNORE OBLIGATIONS CREATED UNDER THE LAWS
OR BY THE JUDICIAL PROCEEDINGS OF THE OTHERS, AND TO MAKE THEM INTEGRAL
PARTS OF A SINGLE NATION."  MILWAUKEE COUNTY V. WHITE CO., SUPRA, PP.
276-277. 

THIS COURT, TO BE SURE, HAS RECOGNIZED THAT IN CASE OF STATUTES, "THE
EXTRA-STATE EFFECT OF WHICH CONGRESS HAS NOT PRESCRIBED," SOME
"ACCOMMODATION OF THE CONFLICTING INTERESTS OF THE TWO STATES" IS
NECESSARY.  ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N, 294
U.S. 532, 547.  BUT THAT PRINCIPLE WOULD COME INTO PLAY ONLY IN CASE
THE NEVADA DECREES WERE ASSAILED ON THE GROUND THAT NEVADA MUST GIVE
FULL FAITH AND CREDIT IN ITS DIVORCE PROCEEDINGS TO THE DIVORCE
STATUTES OF NORTH CAROLINA.  EVEN THEN, IT WOULD BE OF NO AVAIL HERE. 
FOR AS STATED IN THE ALASKA PACKERS CASE, "PRIMA FACIE EVERY STATE IS
ENTITLED TO ENFORCE IN ITS OWN COURTS ITS OWN STATUTES, LAWFULLY
ENACTED.  ONE WHO CHALLENGES THAT RIGHT, BECAUSE OF THE FORCE GIVEN TO
A CONFLICTING STATUTE OF ANOTHER STATE BY THE FULL FAITH AND CREDIT
CLAUSE, ASSUMES THE BURDEN OF SHOWING, UPON SOME RATIONAL BASIS, THAT
OF THE CONFLICTING INTERESTS INVOLVED THOSE OF THE FOREIGN STATE ARE
SUPERIOR TO THOSE OF THE FORUM."  ID., PP. 547-548.  IT IS DIFFICULT TO
PERCEIVE HOW NORTH CAROLINA COULD BE SAID TO HAVE AN INTEREST IN
NEVADA'S DOMICILIARIES SUPERIOR TO THE INTEREST OF NEVADA.  NOR IS
THERE ANY AUTHORITY WHICH LENDS SUPPORT TO THE VIEW THAT THE FULL FAITH
AND CREDIT CLAUSE COMPELS THE COURTS OF ONE STATE TO SUBORDINATE THE
LOCAL POLICY OF THAT STATE, AS RESPECTS ITS DOMICILIARIES, TO THE
STATUTES OF ANY OTHER STATE.  CERTAINLY BRADFORD ELECTRIC CO. V.
CLAPPER, 286 U.S. 145, DID NOT SO HOLD.  INDEED, THE RECENT CASE OF
PACIFIC EMPLOYERS INS. CO. V. INDUSTRIAL ACCIDENT COMM'N, 306 U.S. 493,
502, HELD THAT IN THE CASE OF STATUTES "THE FULL FAITH AND CREDIT
CLAUSE DOES NOT REQUIRE ONE STATE TO SUBSTITUTE FOR ITS OWN STATUTE,
APPLICABLE TO PERSONS AND EVENTS WITHIN IT, THE CONFLICTING STATUTE OF
ANOTHER STATE, EVEN THOUGH THAT STATUTE IS OF CONTROLLING FORCE IN THE
COURTS OF THE STATE OF ITS ENACTMENT WITH RESPECT TO THE SAME PERSONS
AND EVENTS." 

MOREOVER, HADDOCK V. HADDOCK IS NOT BASED ON THE CONTRARY THEORY. 
NOR DID IT HOLD THAT A DECREE OF DIVORCE GRANTED BY THE COURTS OF ONE
STATE NEED NOT BE GIVEN FULL FAITH AND CREDIT IN ANOTHER IF THE GROUNDS
FOR THE DIVORCE WOULD NOT BE RECOGNIZED BY THE COURTS OF THE FORUM.  IT
DOES NOT PURPORT TO CHALLENGE OR DISTURB THE RULE, EARLIER ESTABLISHED
BY CHRISTMAS V. RUSSELL, SUPRA, AND SUBSEQUENTLY FORTIFIED BY
FAUNTLEROY V. LUM, SUPRA, THAT, EVEN THOUGH THE CAUSE OF ACTION COULD
NOT HAVE BEEN ENTERTAINED IN THE STATE OF THE FORUM, A JUDGMENT
OBTAINED THEREON IN A SISTER STATE IS ENTITLED TO FULL FAITH AND
CREDIT.  FOR THE MAJORITY OPINION IN THE HADDOCK CASE ACCEPTED BOTH
CHEEVER V. WILSON, 9 WALL.  108, AND ATHERTON V. ATHERTON, 181 U.S.
155.  CHEEVER V. WILSON HELD THAT A DECREE OF DIVORCE GRANTED BY A
STATE IN WHICH ONE SPOUSE WAS DOMICILED AND WHICH HAD PERSONAL
JURISDICTION OVER THE OTHER WAS AS CONCLUSIVE IN OTHER STATES AS IT WAS
IN THE STATE WHERE IT WAS OBTAINED.  ATHERTON V. ATHERTON HELD THAT
FULL FAITH AND CREDIT MUST BE GIVEN A DECREE OF DIVORCE GRANTED BY THE
STATE OF THE MATRIMONIAL DOMICIL ON CONSTRUCTIVE SERVICE AGAINST THE
OTHER SPOUSE WHO WAS A NON-RESIDENT OF THAT STATE.  THE DECISIVE
DIFFERENCE BETWEEN THOSE CASES AND HADDOCK V. HADDOCK WAS SAID TO BE
THAT, IN THE LATTER, THE STATE GRANTING THE DIVORCE HAD NO JURISDICTION
OVER THE ABSENT SPOUSE, SINCE IT WAS NOT THE STATE OF THE MATRIMONIAL
DOMICIL, BUT THE PLACE WHERE THE HUSBAND HAD ACQUIRED A SEPARATE
DOMICIL AFTER HAVING WRONGFULLY LEFT HIS WIFE.  THIS COURT ACCORDINGLY
CLASSIFIED HADDOCK V. HADDOCK WITH THAT GROUP OF CASES WHICH HOLD THAT
WHEN THE COURTS OF ONE STATE DO NOT HAVE JURISDICTION EITHER OF THE
SUBJECT MATTER OR OF THE PERSON OF THE DEFENDANT, THE COURTS OF ANOTHER
STATE ARE NOT REQUIRED BY VIRTUE OF THE FULL FAITH AND CREDIT CLAUSE TO
ENFORCE THE JUDGMENT.  FN7  BUT SUCH DIFFERENCES IN RESULT BETWEEN
HADDOCK V. HADDOCK AND THE CASES WHICH PRECEDED IT REST ON DISTINCTIONS
WHICH IN OUR VIEW ARE IMMATERIAL, SO FAR AS THE FULL FAITH AND CREDIT
CLAUSE AND THE SUPPORTING LEGISLATION ARE CONCERNED. 

THE HISTORICAL VIEW THAT A PROCEEDING FOR A DIVORCE WAS A PROCEEDING
IN REM (2 BISHOP, MARRIAGE & DIVORCE, 4TH ED., SEC. 164) WAS REJECTED
BY THE HADDOCK CASE.  WE LIKEWISE AGREE THAT IT DOES NOT AID IN THE
SOLUTION OF THE PROBLEM PRESENTED BY THIS CASE TO LABEL THESE
PROCEEDINGS AS PROCEEDINGS IN REM.  SUCH A SUIT, HOWEVER, IS NOT A MERE
IN PERSONAM ACTION.  DOMICIL OF THE PLAINTIFF, IMMATERIAL TO
JURISDICTION IN A PERSONAL ACTION, IS RECOGNIZED IN THE HADDOCK CASE
AND ELSEWHERE (BEALE, CONFLICT OF LAWS, SEC. 110.1) AS ESSENTIAL IN
ORDER TO GIVE THE COURT JURISDICTION WHICH WILL ENTITLE THE DIVORCE
DECREE TO EXTRATERRITORIAL EFFECT, AT LEAST WHEN THE DEFENDANT HAS
NEITHER BEEN PERSONALLY SERVED NOR ENTERED AN APPEARANCE.  THE FINDINGS
MADE IN THE DIVORCE DECREES IN THE INSTANT CASE MUST BE TREATED ON THE
ISSUE BEFORE US AS MEETING THOSE REQUIREMENTS.  FOR IT SEEMS CLEAR THAT
THE PROVISION OF THE NEVADA STATUTE THAT A PLAINTIFF IN THIS TYPE OF
CASE MUST "RESIDE" IN THE STATE FOR THE REQUIRED PERIOD  FN8  REQUIRES
HIM TO HAVE A DOMICIL,  FN9  AS DISTINGUISHED FROM A MERE RESIDENCE, IN
THE STATE.  LATTERNER V. LATTERNER, 51 NEV. 285, 274 P. 194; LAMB V.
LAMB, 57 NEV. 421, 65 P.2D 872.  HENCE, THE DECREES IN THIS CASE, LIKE
OTHER DIVORCE DECREES, ARE MORE THAN IN PERSONAM JUDGMENTS.  THEY
INVOLVE THE MARITAL STATUS OF THE PARTIES.  DOMICIL CREATES A
RELATIONSHIP TO THE STATE WHICH IS ADEQUATE FOR NUMEROUS EXERCISES OF
STATE POWER.  SEE LAWRENCE V. STATE TAX COMMISSION, 286 U.S. 276, 279;
NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308, 313; MILLIKEN V. MEYER,
311 U.S. 457, 463-464; SKIRIOTES V. FLORIDA, 313 U.S. 69.  EACH STATE
AS A SOVEREIGN HAS A RIGHTFUL AND LEGITIMATE CONCERN IN THE MARITAL
STATUS OF PERSONS DOMICILED WITHIN ITS BORDERS.  THE MARRIAGE RELATION
CREATES PROBLEMS OF LARGE SOCIAL IMPORTANCE.  PROTECTION OF OFFSPRING,
PROPERTY INTERESTS, AND THE ENFORCEMENT OF MARITAL RESPONSIBILITIES ARE
BUT A FEW OF COMMANDING PROBLEMS IN THE FIELD OF DOMESTIC RELATIONS
WITH WHICH THE STATE MUST DEAL.  THUS IT IS PLAIN THAT EACH STATE, BY
VIRTUE OF ITS COMMAND OVER ITS DOMICILIARIES AND ITS LARGE INTEREST IN
THE INSTITUTION OF MARRIAGE, CAN ALTER WITHIN ITS OWN BORDERS THE
MARRIAGE STATUS OF THE SPOUSE DOMICILED THERE, EVEN THOUGH THE OTHER
SPOUSE IS ABSENT.  THERE IS NO CONSTITUTIONAL BARRIER IF THE FORM AND
NATURE OF THE SUBSTITUTED SERVICE (SEE MILLIKEN V. MEYER, SUPRA, P.
463) MEET THE REQUIREMENTS OF DUE PROCESS.  ATHERTON V. ATHERTON,
SUPRA, P. 172.  ACCORDINGLY, IT WAS ADMITTED IN THE HADDOCK CASE THAT
THE DIVORCE DECREE, THOUGH NOT RECOGNIZED IN NEW YORK, WAS BINDING ON
BOTH SPOUSES IN CONNECTICUT WHERE GRANTED.  201 U.S. 569, 572, 575,
579.  AND THIS COURT IN MAYNARD V. HILL, 125 U.S. 190, UPHELD THE
VALIDITY WITHIN THE TERRITORY OF OREGON OF A DIVORCE DECREE GRANTED BY
THE LEGISLATURE TO A HUSBAND DOMICILED THERE, EVEN THOUGH THE WIFE
RESIDED IN OHIO WHERE THE HUSBAND HAD DESERTED HER.  IT THEREFORE
FOLLOWS THAT, IF THE NEVADA DECREES ARE TAKEN AT THEIR FULL FACE VALUE
(AS THEY MUST BE ON THE PHASE OF THE CASE WITH WHICH WE ARE PRESENTLY
CONCERNED), THEY WERE WHOLLY EFFECTIVE TO CHANGE IN THAT STATE THE
MARITAL STATUS OF THE PETITIONERS AND EACH OF THE OTHER SPOUSES BY THE
NORTH CAROLINA MARRIAGES.  APART FROM THE REQUIREMENTS OF PROCEDURAL
DUE PROCESS (ATHERTON V. ATHERTON, SUPRA, P. 172) NOT CHALLENGED HERE
BY NORTH CAROLINA, NO REASON BASED ON THE FEDERAL CONSTITUTION HAS BEEN
ADVANCED FOR THE CONTRARY CONCLUSION.  BUT THE CONCESSION THAT THE
DECREES WERE EFFECTIVE IN NEVADA MAKES MORE COMPELLING THE REASONS FOR
REJECTION OF THE THEORY AND RESULT OF THE HADDOCK CASE. 

THIS COURT STATED IN ATHERTON V. ATHERTON, SUPRA, P. 162, THAT "A
HUSBAND WITHOUT A WIFE, OR A WIFE WITHOUT A HUSBAND, IS UNKNOWN TO THE
LAW."  BUT IF ONE IS LAWFULLY DIVORCED AND REMARRIED IN NEVADA AND
STILL MARRIED TO THE FIRST SPOUSE IN NORTH CAROLINA, AN EVEN MORE
COMPLICATED AND SERIOUS CONDITION WOULD BE REALIZED.  WE WOULD THEN
HAVE WHAT THE SUPREME COURT OF ILLINOIS DECLARED TO BE THE "MOST
PERPLEXING AND DISTRESSING COMPLICATIONS IN THE DOMESTIC RELATIONS OF
MANY CITIZENS IN THE DIFFERENT STATES."  DUNHAM V. DUNHAM, 162 ILL.
589, 607.  UNDER THE CIRCUMSTANCES OF THIS CASE, A MAN WOULD HAVE TWO
WIVES, A WIFE TWO HUSBANDS.  THE REALITY OF A SENTENCE TO PRISON PROVES
THAT THAT IS NO MERE PLAY ON WORDS.  EACH WOULD BE A BIGAMIST FOR
LIVING IN ONE STATE WITH THE ONLY ONE WITH WHOM THE OTHER STATE WOULD
PERMIT HIM LAWFULLY TO LIVE.  CHILDREN OF THE SECOND MARRIAGE WOULD BE
BASTARDS IN ONE STATE BUT LEGITIMATE IN THE OTHER.  AND ALL THAT WOULD
FLOW FROM THE LEGALISTIC NOTION THAT WHERE ONE SPOUSE IS WRONGFULLY
DESERTED HE RETAINS POWER OVER THE MATRIMONIAL DOMICIL SO THAT THE
DOMICIL OF THE OTHER SPOUSE FOLLOWS HIM WHEREVER HE MAY GO, WHILE, IF
HE IS TO BLAME, HE RETAINS NO SUCH POWER.  BUT SUCH CONSIDERATIONS ARE
INAPPOSITE.  AS STATED BY MR. JUSTICE HOLMES IN HIS DISSENT IN THE
HADDOCK CASE (201 U.S. P. 630), THEY CONSTITUTE A "PURE FICTION, AND
FICTION ALWAYS IS A POOR GROUND FOR CHANGING SUBSTANTIAL RIGHTS." 
FURTHERMORE, THE FAULT OR WRONG OF ONE SPOUSE IN LEAVING THE OTHER
BECOMES UNDER THAT VIEW A JURISDICTIONAL FACT ON WHICH THIS COURT WOULD
ULTIMATELY HAVE TO PASS.  WHATEVER MAY BE SAID AS TO THE PRACTICAL
EFFECT WHICH SUCH A RULE WOULD HAVE IN CLOUDING DIVORCE DECREES, THE
QUESTION AS TO WHERE THE FAULT LIES HAS NO RELEVANCY TO THE EXISTENCE
OF STATE POWER IN SUCH CIRCUMSTANCES.  SEE BINGHAM, IN THE MATTER OF
HADDOCK V. HADDOCK, 21 CORN.  L.Q. 393, 426.  THE EXISTENCE OF THE
POWER OF A STATE TO ALTER THE MARITAL STATUS OF ITS DOMICILIARIES, AS
DISTINGUISHED FROM THE WISDOM OF ITS EXERCISE, IS NOT DEPENDENT ON THE
UNDERLYING CAUSES OF THE DOMESTIC RIFT.  AS WE HAVE SAID, IT IS
DEPENDENT ON THE RELATIONSHIP WHICH DOMICIL CREATES AND THE PERVASIVE
CONTROL WHICH A STATE HAS OVER MARRIAGE AND DIVORCE WITHIN ITS OWN
BORDERS.  ATHERTON V. ATHERTON, WHICH PRECEDED HADDOCK V. HADDOCK, AND
THOMPSON V. THOMPSON, 226 U.S. 551, WHICH FOLLOWED IT, RECOGNIZED THAT
THE POWER OF THE STATE OF THE MATRIMONIAL DOMICIL TO GRANT A DIVORCE
FROM THE ABSENT SPOUSE DID NOT DEPEND ON WHETHER HIS DEPARTURE FROM THE
STATE WAS OR WAS NOT JUSTIFIED.  AS STATED ABOVE, WE SEE NO REASON, AND
NONE HAS HERE BEEN ADVANCED, FOR MAKING THE EXISTENCE OF STATE POWER
DEPEND ON AN INQUIRY AS TO WHERE THE FAULT IN EACH DOMESTIC DISPUTE
LIES.  AND IT IS DIFFICULT TO PRICK OUT ANY SUCH LINE OF DISTINCTION IN
THE GENERALITY OF THE WORDS OF THE FULL FAITH AND CREDIT CLAUSE. 
MOREOVER, SO FAR AS STATE POWER IS CONCERNED, NO DISTINCTION BETWEEN A
MATRIMONIAL DOMICIL AND A DOMICIL LATER ACQUIRED HAS BEEN SUGGESTED OR
IS APPARENT.  SEE MR. JUSTICE HOLMES DISSENTING, HADDOCK V. HADDOCK,
SUPRA, P. 631; GOODRICH, MATRIMONIAL DOMICILE, 27 YALE L. JOURN.  49. 
IT IS ONE THING TO SAY AS A MATTER OF STATE LAW THAT JURISDICTION TO
GRANT A DIVORCE FROM AN ABSENT SPOUSE SHOULD DEPEND ON WHETHER BY
CONSENT OR BY CONDUCT THE LATTER HAS SUBJECTED HIS INTEREST IN THE
MARRIAGE STATUS TO THE LAW OF THE SEPARATE DOMICIL ACQUIRED BY THE
OTHER SPOUSE.  BEALE, CONFLICT OF LAWS, SEC. 113.11; RESTATEMENT,
CONFLICT OF LAWS, SEC. 113.  BUT WHERE A STATE ADOPTS, AS IT HAS THE
POWER TO DO, A LESS STRICT RULE, IT IS QUITE ANOTHER THING TO SAY THAT
ITS DECREES AFFECTING THE MARITAL STATUS OF ITS DOMICILIARIES ARE NOT
ENTITLED TO FULL FAITH AND CREDIT IN SISTER STATES.  CERTAINLY IF
DECREES OF A STATE ALTERING THE MARITAL STATUS OF ITS DOMICILIARIES ARE
NOT VALID THROUGHOUT THE UNION EVEN THOUGH THE REQUIREMENTS OF
PROCEDURAL DUE PROCESS ARE WHOLLY MET, A RULE WOULD BE FOSTERED WHICH
COULD NOT HELP BUT BRING "CONSIDERABLE DISASTER TO INNOCENT PERSONS"
AND "BASTARDIZE CHILDREN HITHERTO SUPPOSED TO BE THE OFFSPRING OF
LAWFUL MARRIAGE" (MR. JUSTICE HOLMES DISSENTING IN HADDOCK V. HADDOCK,
SUPRA, P. 628), OR ELSE ENCOURAGE COLLUSIVE DIVORCES.  BEALE,
CONSTITUTIONAL PROTECTION OF DECREES FOR DIVORCE, 19 HARV. L. REV. 586,
596.  THESE INTENSELY PRACTICAL CONSIDERATIONS EMPHASIZE FOR US THE
ESSENTIAL FUNCTION OF THE FULL FAITH AND CREDIT CLAUSE IN SUBSTITUTING
A COMMAND FOR THE FORMER PRINCIPLES OF COMITY (BRODERICK V. ROSNER,
SUPRA, P. 643) AND IN ALTERING THE "STATUS OF THE SEVERAL STATES AS
INDEPENDENT FOREIGN SOVEREIGNTIES" BY MAKING THEM "INTEGRAL PARTS OF A
SINGLE NATION."  MILWAUKEE COUNTY V. WHITE CO., SUPRA, P. 277. 

IT IS OBJECTED, HOWEVER, THAT IF SUCH DIVORCE DECREES MUST BE GIVEN
FULL FAITH AND CREDIT, A SUBSTANTIAL DILUTION OF THE SOVEREIGNTY OF
OTHER STATES WILL BE EFFECTED.  FOR IT IS POINTED OUT THAT UNDER SUCH A
RULE ONE STATE'S POLICY OF STRICT CONTROL OVER THE INSTITUTION OF
MARRIAGE COULD BE THWARTED BY THE DECREE OF A MORE LAX STATE.  BUT SUCH
AN OBJECTION GOES TO THE APPLICATION OF THE FULL FAITH AND CREDIT
CLAUSE TO MANY SITUATIONS.  IT IS AN OBJECTION IN VARYING DEGREES OF
INTENSITY TO THE ENFORCEMENT OF A JUDGMENT OF A SISTER STATE BASED ON A
CAUSE OF ACTION WHICH COULD NOT BE ENFORCED IN THE STATE OF THE FORUM. 
MISSISSIPPI'S POLICY AGAINST GAMBLING TRANSACTIONS WAS OVERRIDDEN IN
FAUNTLEROY V. LUM, SUPRA, WHEN A MISSOURI JUDGMENT BASED ON SUCH A
MISSISSIPPI CONTRACT WAS ENFORCED BY THIS COURT.  SUCH IS PART OF THE
PRICE OF OUR FEDERAL SYSTEM. 

THIS COURT, OF COURSE, IS THE FINAL ARBITER WHEN THE QUESTION IS
RAISED AS TO WHAT IS A PERMISSIBLE LIMITATION ON THE FULL FAITH AND
CREDIT CLAUSE.  ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N,
SUPRA, P. 547; MILWAUKEE COUNTY V. WHITE CO., SUPRA, P. 274.  BUT THE
QUESTION FOR US IS A LIMITED ONE.  IN THE FIRST PLACE, WE REPEAT THAT
IN THIS CASE WE MUST ASSUME THAT PETITIONERS HAD A BONA FIDE DOMICIL IN
NEVADA, NOT THAT THE NEVADA DOMICIL WAS A SHAM.  WE THUS HAVE NO
QUESTION ON THE PRESENT RECORD WHETHER A DIVORCE DECREE GRANTED BY THE
COURTS OF ONE STATE TO A RESIDENT, AS DISTINGUISHED FROM A DOMICILIARY,
IS ENTITLED TO FULL FAITH AND CREDIT IN ANOTHER STATE.  NOR DO WE REACH
HERE THE QUESTION AS TO THE POWER OF NORTH CAROLINA TO REFUSE FULL
FAITH AND CREDIT TO NEVADA DIVORCE DECREES BECAUSE, CONTRARY TO THE
FINDINGS OF THE NEVADA COURT, NORTH CAROLINA FINDS THAT NO BONA FIDE
DOMICIL WAS ACQUIRED IN NEVADA.  IN THE SECOND PLACE, THE QUESTION AS
TO WHAT IS A PERMISSIBLE LIMITATION ON THE FULL FAITH AND CREDIT CLAUSE
DOES NOT INVOLVE A DECISION ON OUR PART AS TO WHICH STATE POLICY ON
DIVORCE IS THE MOST DESIRABLE ONE.  IT DOES NOT INVOLVE SELECTION OF A
RULE WHICH WILL ENCOURAGE ON THE ONE HAND OR DISCOURAGE ON THE OTHER
THE PRACTICE OF DIVORCE.  THAT CHOICE IN THE REALM OF MORALS AND
RELIGION RESTS WITH THE LEGISLATURES OF THE STATES.  OUR OWN VIEWS AS
TO THE MARRIAGE INSTITUTION AND THE AVENUES OF ESCAPE WHICH SOME STATES
HAVE CREATED ARE IMMATERIAL.  IT IS A CONSTITUTION WHICH WE ARE
EXPOUNDING - A CONSTITUTION WHICH IN NO SMALL MEASURE BRINGS SEPARATE
SOVEREIGN STATES INTO AN INTEGRATED WHOLE THROUGH THE MEDIUM OF THE
FULL FAITH AND CREDIT CLAUSE.  WITHIN THE LIMITS OF HER POLITICAL POWER
NORTH CAROLINA MAY, OF COURSE, ENFORCE HER OWN POLICY REGARDING THE
MARRIAGE RELATION - AN INSTITUTION MORE BASIC IN OUR CIVILIZATION THAN
ANY OTHER.  BUT SOCIETY ALSO HAS AN INTEREST IN THE AVOIDANCE OF
POLYGAMOUS MARRIAGES (LOUGHRAN V. LOUGHRAN, 292 U.S. 216, 223) AND IN
THE PROTECTION OF INNOCENT OFFSPRING OF MARRIAGES DEEMED LEGITIMATE IN
OTHER JURISDICTIONS.  AND OTHER STATES HAVE AN EQUALLY LEGITIMATE
CONCERN IN THE STATUS OF PERSONS DOMICILED THERE AS RESPECTS THE
INSTITUTION OF MARRIAGE.  SO, WHEN A COURT OF ONE STATE ACTING IN
ACCORD WITH THE REQUIREMENTS OF PROCEDURAL DUE PROCESS ALTERS THE
MARITAL STATUS OF ONE DOMICILED IN THAT STATE BY GRANTING HIM A DIVORCE
FROM HIS ABSENT SPOUSE, WE CANNOT SAY ITS DECREE SHOULD BE EXCEPTED
FROM THE FULL FAITH AND CREDIT CLAUSE MERELY BECAUSE ITS ENFORCEMENT OR
RECOGNITION IN ANOTHER STATE WOULD CONFLICT WITH THE POLICY OF THE
LATTER.  WHETHER CONGRESS HAS THE POWER TO CREATE EXCEPTIONS (SEE
YARBOROUGH V. YARBOROUGH, 290 U.S. 202, 215, NT. 2, DISSENTING OPINION)
IS A QUESTION ON WHICH WE EXPRESS NO VIEW.  IT IS SUFFICIENT HERE TO
NOTE THAT CONGRESS, IN ITS SWEEPING REQUIREMENT THAT JUDGMENTS OF THE
COURTS OF ONE STATE BE GIVEN FULL FAITH AND CREDIT IN THE COURTS OF
ANOTHER, HAS NOT DONE SO.  AND THE CONSIDERABLE INTERESTS INVOLVED, AND
THE SUBSTANTIAL AND FAR-REACHING EFFECTS WHICH THE ALLOWANCE OF AN
EXCEPTION WOULD HAVE ON INNOCENT PERSONS, INDICATE THAT THE PURPOSE OF
THE FULL FAITH AND CREDIT CLAUSE AND OF THE SUPPORTING LEGISLATION
WOULD BE THWARTED TO A SUBSTANTIAL DEGREE IF THE RULE OF HADDOCK V.
HADDOCK WERE PERPETUATED.    HADDOCK V. HADDOCK IS OVERRULED.  THE
JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE SUPREME COURT OF
NORTH CAROLINA FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  SEC. 4342 PROVIDES IN PART:  "IF ANY PERSON, BEING MARRIED,
SHALL CONTRACT A MARRIAGE WITH ANY OTHER PERSON OUTSIDE OF THIS STATE,
WHICH MARRIAGE WOULD BE PUNISHABLE AS BIGAMOUS IF CONTRACTED WITHIN
THIS STATE, AND SHALL THEREAFTER COHABIT WITH SUCH PERSON IN THIS
STATE, HE SHALL BE GUILTY OF A FELONY AND SHALL BE PUNISHED AS IN CASES
OF BIGAMY.  NOTHING CONTAINED IN THIS SECTION SHALL EXTEND  ...  TO ANY
PERSON WHO AT THE TIME OF SUCH SECOND MARRIAGE SHALL HAVE BEEN LAWFULLY
DIVORCED FROM THE BOND OF THE FIRST MARRIAGE  ...  "    FN2  DEFENDANT
HENDRIX HAD WRITTEN HIS WIFE'S NEVADA ATTORNEY, "UPON RECEIPT OF THE
ORIGINAL APPEARANCE, I WILL SIGN THE SAME."  BUT NO APPEARANCE WAS
ENTERED AND THE NORTH CAROLINA COURT CHARGED THE JURY THAT A PROMISE TO
MAKE AN APPEARANCE DOES NOT CONSTITUTE ONE. 

FN3  SEC. 9460, NEV. COMP. L. 1929, AS AMENDED L. 1931, P. 161,
PROVIDES IN PART:  "DIVORCE FROM THE BONDS OF MATRIMONY MAY BE OBTAINED
BY COMPLAINT, UNDER OATH, TO THE DISTRICT COURT OF ANY COUNTY IN WHICH
THE CAUSE THEREFOR SHALL HAVE ACCRUED, OR IN WHICH THE DEFENDANT SHALL
RESIDE OR BE FOUND, OR IN WHICH THE PLAINTIFF SHALL RESIDE, OR IN WHICH
THE PARTIES LAST COHABITED, OR IF PLAINTIFF SHALL HAVE RESIDED SIX
WEEKS IN THE STATE BEFORE SUIT BE BROUGHT, FOR THE FOLLOWING CAUSES, OR
ANY OTHER CAUSES PROVIDED BY LAW  ...  "  SEC. 9467.02 PROVIDES THAT
"IN ALL CIVIL CASES WHERE THE JURISDICTION OF THE COURT DEPENDS UPON
THE RESIDENCE OF ONE OF THE PARTIES TO THE ACTION, THE COURT SHALL
REQUIRE CORROBORATION OF THE EVIDENCE OF SUCH RESIDENCE."  L. 1931, P.
277. 

FN4  THUS WE HAVE HERE NO QUESTION AS TO EXTRATERRITORIAL EFFECT OF A
DIVORCE DECREE INSOFAR AS IT AFFECTS PROPERTY IN ANOTHER STATE.  SEE
THE CASES CITED, INFRA, NOTE 5. 

FN5  FALL V. EASTIN, 215 U.S. 1; OLMSTED V. OLMSTED, 216 U.S. 386;
HOOD V. MCGEHEE, 237 U.S. 611.  THESE DECISIONS REFUSE TO REQUIRE
COURTS OF ONE STATE TO ALLOW ACTS OR JUDGMENTS OF ANOTHER TO CONTROL
THE DISPOSITION OR DEVOLUTION OF REALTY IN THE FORMER.  THEY SEEM TO
REST ON THE DOCTRINE THAT THE STATE WHERE THE LAND IS LOCATED IS "SOLE
MISTRESS" OF ITS RULES OF REAL PROPERTY.  SEE HOOD V. MCGEHEE, SUPRA,
P. 615; AND THE CONCURRING OPINION OF MR. JUSTICE HOLMES IN FALL V.
EASTIN, SUPRA, P. 14. 

THAT THE CASE OF ANGLO-AMERICAN PROVISION CO. V. DAVIS PROVISION CO.,
191 U.S. 373, IS NOT AN EXCEPTION BUT ONLY AN APPROPRIATE APPLICATION
OF THE DOCTRINE OF FORUM NON CONVENIENS, SEE BRODERICK V. ROSNER, 294
U.S. 629, 642-643. 

FN6  IT HAS BEEN REPEATEDLY STATED THAT THE FULL FAITH AND CREDIT
CLAUSE DOES NOT REQUIRE ONE STATE TO ENFORCE THE PENAL LAWS OF
ANOTHER.  SEE, FOR EXAMPLE, HUNTINGTON V. ATTRILL, 146 U.S. 657, 666;
CONVERSE V. HAMILTON, 224 U.S. 243, 260; BRADFORD ELECTRIC CO. V.
CLAPPER, 286 U.S. 145, 160. 

BUT THE QUESTION OF WHETHER A JUDGMENT BASED ON A PENALTY IS ENTITLED
TO FULL FAITH AND CREDIT WAS RESERVED IN MILWAUKEE COUNTY V. WHITE CO.,
296 U.S. 268, 279. 

FOR OTHER DICTA THAT THE APPLICATION OF THE FULL FAITH AND CREDIT
CLAUSE MAY BE LIMITED BY THE POLICY OF THE LAW OF THE FORUM, SEE
BRADFORD ELECTRIC CO. V. CLAPPER, SUPRA, P. 160; ALASKA PACKERS ASSN.
V. INDUSTRIAL ACCIDENT COMM'N, 294 U.S. 532, 546; BRODERICK V. ROSNER,
SUPRA, NOTE 5, P. 642. 

FN7  GROVER & BAKER MACHINE CO. V. RADCLIFFE, 137 U.S. 287; NATIONAL
EXCHANGE BANK V. WILEY, 195 U.S. 257; BAKER V. BAKER, ECCLES & CO., 242
U.S. 394; CHICAGO LIFE INS. CO. V. CHERRY, 244 U.S. 25, 29; FLEXNER V.
FARSON, 248 U.S. 289. 

FN8  SEC. 9460, NEV. COMP. L. 1929, AS AMENDED L. 1931, P. 161,
SUPRA, NOTE 3. 

FN9  THE FACT THAT A STAY IN A STATE IS NOT FOR LONG IS NOT
NECESSARILY FATAL TO THE EXISTENCE OF A DOMICIL.  AS STATED IN
WILLIAMSON V. OSENTON, 232 U.S. 619, 624, THE "ESSENTIAL FACT THAT
RAISES A CHANGE OF ABODE TO A CHANGE OF DOMICIL IS THE ABSENCE OF ANY
INTENTION TO LIVE ELSEWHERE."  THE INTENTION TO STAY FOR A TIME TO
WHICH A PERSON "DID NOT THEN CONTEMPLATE AN END" WAS HELD SUFFICIENT. 
ID., P. 625.  AND SEE DISTRICT OF COLUMBIA V. MURPHY, 314 U.S. 441. 
NOR IS THERE ANY DOUBT THAT A MARRIED WOMAN MAY ACQUIRE IN THIS COUNTRY
A DOMICIL SEPARATE FROM HER HUSBAND.  WILLIAMSON V. OSENTON, SUPRA, PP.
625-626, AND CASES CITED. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

I JOIN IN THE OPINION OF THE COURT BUT THINK IT APPROPRIATE TO ADD A
FEW THOUSAND WORDS. 

ARTICLE 91 OF THE BRITISH NORTH AMERICA ACT (1867) GIVES THE
PARLIAMENT OF CANADA EXCLUSIVE LEGISLATIVE AUTHORITY TO DEAL WITH
MARRIAGE AND DIVORCE.  SIMILARLY, ARTICLE 51 OF THE AUSTRALIA
CONSTITUTION ACT (1900) EMPOWERS THE COMMONWEALTH PARLIAMENT TO MAKE
LAWS WITH RESPECT TO MARRIAGE AND DIVORCE.  THE CONSTITUTION OF THE
UNITED STATES, HOWEVER, RESERVES AUTHORITY OVER MARRIAGE AND DIVORCE TO
EACH OF THE FORTY-EIGHT STATES.  THAT IS OUR STARTING-POINT.  IN A
COUNTRY LIKE OURS WHERE EACH STATE HAS THE CONSTITUTIONAL POWER TO
TRANSLATE INTO LAW ITS OWN NOTIONS OF POLICY CONCERNING THE FAMILY
INSTITUTION, AND WHERE CITIZENS PASS FREELY FROM ONE STATE TO ANOTHER,
TANGLED MARITAL SITUATIONS, LIKE THE ONE IMMEDIATELY BEFORE US,
INEVITABLY ARISE.  THEY AROSE BEFORE AND AFTER THE DECISION IN THE
HADDOCK CASE, 201 U.S. 562, AND WILL, I DARESAY, CONTINUE TO ARISE NO
MATTER WHAT WE DO TODAY.  FOR THESE COMPLICATIONS CANNOT BE REMOVED BY
ANY DECISIONS THIS COURT CAN MAKE - NEITHER THE CRUDEST NOR THE
SUBTLEST JUGGLING OF LEGAL CONCEPTS COULD ENABLE US TO BRING FORTH A
UNIFORM NATIONAL LAW OF MARRIAGE AND DIVORCE. 

WE ARE NOT AUTHORIZED NOR ARE WE QUALIFIED TO FORMULATE A NATIONAL
CODE OF DOMESTIC RELATIONS.  WE CANNOT, BY MAKING "JURISDICTION" DEPEND
UPON A DETERMINATION OF WHO IS THE DESERTER AND WHO THE DESERTED, OR
UPON THE SHIFTING NOTIONS OF POLICY CONCEALED BY THE CLOUDY ABSTRACTION
OF "MATRIMONIAL DOMICILE," TURN THIS INTO A DIVORCE AND PROBATE COURT
FOR THE UNITED STATES.  THERE MAY BE SOME WHO THINK OUR MODERN SOCIAL
LIFE IS SUCH THAT THERE IS TODAY A NEED, AS THERE WAS NOT WHEN THE
CONSTITUTION WAS FRAMED, FOR VESTING NATIONAL AUTHORITY OVER MARRIAGE
AND DIVORCE IN CONGRESS, JUST AS THE NATIONAL LEGISLATURES OF CANADA
AND AUSTRALIA HAVE BEEN VESTED WITH SUCH POWERS.  BEGINNING IN 1884,
FN1  NUMEROUS PROPOSALS TO AMEND THE CONSTITUTION TO CONFER SUCH
AUTHORITY HAVE BEEN INTRODUCED IN CONGRESS.  BUT THOSE WHOSE BUSINESS
IT IS TO AMEND THE CONSTITUTION HAVE NOT SEEN FIT TO AMEND IT IN THIS
WAY.  THE NEED FOR SECURING NATIONAL UNIFORMITY IN DEALING WITH
DIVORCE, EITHER THROUGH CONSTITUTIONAL AMENDMENT OR BY SOME OTHER
MEANS, HAS LONG BEEN THE CONCERN OF THE CONFERENCE OF GOVERNORS AND OF
SPECIAL BODIES CONVENED TO CONSIDER THIS PROBLEM.  SEE, E.G.,
PROCEEDINGS OF GOVERNORS' CONFERENCE (1910) 185-98; PROCEEDINGS OF
NATIONAL CONGRESS ON UNIFORM DIVORCE LAWS (1906).  THIS COURT SHOULD
ABSTAIN FROM TRYING TO REACH THE SAME END BY INDIRECTION.  WE SHOULD
NOT FEEL CHALLENGED BY A TASK THAT IS NOT OURS, EVEN THOUGH IT IS
DIFFICULT.  JUDICIAL ATTEMPTS TO SOLVE PROBLEMS THAT ARE INTRINSICALLY
LEGISLATIVE - BECAUSE THEIR ELEMENTS DO NOT LEND THEMSELVES TO JUDICIAL
JUDGMENT OR BECAUSE THE NECESSARY REMEDIES ARE OF A SORT WHICH JUDGES
CANNOT PRESCRIBE - ARE APT TO BE AS FUTILE IN THEIR ACHIEVEMENT AS THEY
ARE PRESUMPTUOUS IN THEIR UNDERTAKING. 

THERE IS BUT ONE RESPECT IN WHICH THIS COURT CAN, WITHIN ITS
TRADITIONAL AUTHORITY AND PROFESSIONAL COMPETENCE, CONTRIBUTE
UNIFORMITY TO THE LAW OF MARRIAGE AND DIVORCE, AND THAT IS TO ENFORCE
RESPECT FOR THE JUDGMENT OF A STATE BY ITS SISTER STATES WHEN THE
JUDGMENT WAS RENDERED IN ACCORDANCE WITH SETTLED PROCEDURAL STANDARDS. 
AS THE COURT'S OPINION SHOWS, IT IS CLEARLY SETTLED THAT IF A JUDGMENT
IS BINDING IN THE STATE WHERE IT WAS RENDERED, IT IS EQUALLY BINDING IN
EVERY OTHER STATE.  THIS RULE OF LAW WAS NOT CREATED BY THE FEDERAL
COURTS.  IT COMES FROM THE CONSTITUTION AND THE ACT OF MAY 26, 1790, C.
11, 1 STAT. 122.  CONGRESS HAS NOT EXERCISED ITS POWER UNDER THE FULL
FAITH AND CREDIT CLAUSE TO MEET THE SPECIAL PROBLEMS RAISED BY DIVORCE
DECREES.  THERE WILL BE TIME ENOUGH TO CONSIDER THE SCOPE OF ITS POWER
IN THIS REGARD WHEN CONGRESS CHOOSES TO EXERCISE IT. 

THE DUTY OF A STATE TO RESPECT THE JUDGMENTS OF A SISTER STATE ARISES
ONLY WHERE SUCH JUDGMENTS MEET THE TESTS OF JUSTICE AND FAIR DEALING
THAT ARE EMBODIED IN THE HISTORIC PHRASE, "DUE PROCESS OF LAW."  BUT IN
THIS CASE ALL TALK ABOUT DUE PROCESS IS BESIDE THE MARK.  IF THE
ACTIONS OF THE NEVADA COURT HAD BEEN TAKEN "WITHOUT DUE PROCESS OF
LAW," THE DIVORCES WHICH IT PURPORTED TO DECREE WOULD HAVE BEEN WITHOUT
LEGAL SANCTION IN EVERY STATE, INCLUDING NEVADA.  THERE WOULD BE NO
OCCASION TO CONSIDER THE APPLICABILITY OF THE FULL FAITH AND CREDIT
CLAUSE.  IT IS PRECISELY BECAUSE THE NEVADA DECREES DO SATISFY THE
REQUIREMENTS OF THE DUE PROCESS CLAUSE AND ARE BINDING IN NEVADA UPON
THE ABSENT SPOUSES THAT WE ARE CALLED UPON TO DECIDE WHETHER THESE
JUDGMENTS, UNASSAILABLE IN THE STATE WHICH RENDERED THEM, ARE, DESPITE
THE COMMANDS OF THE FULL FAITH AND CREDIT CLAUSE, NULL AND VOID
ELSEWHERE. 

NORTH CAROLINA DID NOT BASE ITS DISREGARD OF THE NEVADA DECREES ON
THE CLAIM THAT THEY WERE A FRAUD AND A SHAM, AND NO CLAIM WAS MADE HERE
ON BEHALF OF NORTH CAROLINA THAT THE DECREES WERE NOT VALID IN NEVADA. 
IT IS INDISPUTABLE THAT THE NEVADA DECREES HERE, LIKE THE CONNECTICUT
DECREE IN THE HADDOCK CASE, WERE VALID AND BINDING IN THE STATE WHERE
THEY WERE RENDERED.  HADDOCK V. HADDOCK, 201 U.S. 562, 569-70; MAYNARD
V. HILL, 125 U.S. 190; ATHERTON V. ATHERTON, 181 U.S. 155.  IN DENYING
CONSTITUTIONAL SANCTION TO SUCH A VALID JUDGMENT OUTSIDE THE STATE
WHICH RENDERED IT, THE HADDOCK DECISION MADE AN ARBITRARY BREAK WITH
THE PAST AND CREATED DISTINCTIONS INCOMPATIBLE WITH THE ROLE OF THIS
COURT IN ENFORCING THE FULL FAITH AND CREDIT CLAUSE.  FREED FROM THE
HOPELESS REFINEMENTS INTRODUCED BY THAT CASE, THE QUESTION BEFORE US IS
SIMPLY WHETHER THE NEVADA DECREES WERE RENDERED UNDER CIRCUMSTANCES
THAT WOULD MAKE THEM BINDING AGAINST THE ABSENT SPOUSES IN THE STATE
WHERE THEY WERE RENDERED.  NORTH CAROLINA DID NOT CHALLENGE THE POWER
OF NEVADA TO DECLARE THE MARITAL STATUS OF PERSONS FOUND TO BE NEVADA
RESIDENTS.  NORTH CAROLINA CHOSE INSTEAD TO DISRESPECT THE CONSEQUENCES
OF NEVADA'S EXERTION OF SUCH POWER.  IT IS THEREFORE NO MORE RHETORICAL
TO SAY THAT NEVADA IS SEEKING TO IMPOSE ITS POLICY UPON NORTH CAROLINA
THAN IT IS TO SAY THAT NORTH CAROLINA IS SEEKING TO IMPOSE ITS POLICY
UPON NEVADA. 

FOR ALL BUT A VERY SMALL FRACTION OF THE COMMUNITY THE NICETIES OF
RESOLVING SUCH CONFLICTS AMONG THE LAWS OF THE STATES ARE, IN ALL
LIKELIHOOD, MATTERS OF COMPLETE INDIFFERENCE.  OUR OCCASIONAL
PRONOUNCEMENTS UPON THE REQUIREMENTS OF THE FULL FAITH AND CREDIT
CLAUSE DOUBTLESS HAVE LITTLE EFFECT UPON DIVORCES.  BE THIS AS IT MAY,
A COURT IS LIKELY TO LOSE ITS WAY IF IT STRAYS OUTSIDE THE MODEST
BOUNDS OF ITS OWN SPECIAL COMPETENCE AND TURNS THE DUTY OF ADJUDICATING
ONLY THE LEGAL PHASES OF A BROAD SOCIAL PROBLEM INTO AN OPPORTUNITY FOR
FORMULATING JUDGMENTS OF SOCIAL POLICY QUITE BEYOND ITS COMPETENCE AS
WELL AS ITS AUTHORITY. 

FN1  SEE AMES, PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED
STATES DURING THE FIRST CENTURY OF ITS HISTORY, CONTAINED IN THE ANNUAL
REPORT OF THE AMERICAN HISTORICAL ASSOCIATION, 1896, VOL. II, P. 190;
SEN. DOC. NO. 93, 69TH CONG., 1ST SESS., AND THE SUCCESSIVE
COMPILATIONS PREPARED BY THE LEGISLATIVE REFERENCE SERVICE OF THE
LIBRARY OF CONGRESS. 

MR. JUSTICE MURPHY: 

I DISSENT BECAUSE THE COURT TODAY INTRODUCES AN UNDESIRABLE RIGIDITY
IN THE APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE TO A PROBLEM
WHICH IS OF ACUTE INTEREST TO ALL THE STATES OF THE UNION AND ON WHICH
THEY HOLD VARYING AND SHARPLY DIVERGENT VIEWS, THE PROBLEM OF HOW THEY
SHALL TREAT THE MARRIAGE RELATION. 

THIS CASE CANNOT BE CONSIDERED AS ONE INVOLVING THE CONSTITUTION
ALONE; RATHER THE CASE INVOLVES THE INTERACTION OF PUBLIC POLICY UPON
THE CONSTITUTION.  THIS IS NOT TO SAY THAT OUR FUNCTION IS TO BECOME
CENSORS OF PUBLIC MORALS AND DECIDE THIS CASE IN ACCORDANCE WITH WHAT
WE MAY THINK IS THE WISEST RULE FOR SOCIETY WITH RESPECT TO DIVORCE. 
BUT THE QUESTION OF PUBLIC POLICY ENTERS TO THIS DEGREE - MARRIAGE AND
THE FAMILY HAVE GENERALLY BEEN REGARDED AS BASIC COMPONENTS OF OUR
NATIONAL LIFE, AND THE SOLUTION OF THE PROBLEMS ENGENDERED BY THE
MARITAL RELATION, THE FORMULATION OF STANDARDS OF PUBLIC MORALITY IN
CONNECTION THEREWITH, AND THE SUPERVISION OF DOMESTIC (IN THE SENSE OF
FAMILY) AFFAIRS, HAVE BEEN LEFT TO THE INDIVIDUAL STATES.  EACH STATE
HAS THE DEEPEST CONCERN FOR ITS CITIZENS IN THOSE MATTERS, AND,
CONCOMITANTLY WITH THAT CONCERN, IT EXERCISES THE WIDEST CONTROL OVER
MARRIAGE, DETERMINING HOW IT IS TO BE SOLEMNIZED, THE ATTENDANT
OBLIGATIONS, AND HOW IT MAY BE DISSOLVED.  WHEN A CONFLICT ARISES
BETWEEN THE DIVERGENT POLICIES OF TWO STATES IN THIS AREA OF LEGITIMATE
GOVERNMENTAL CONCERN, AS HERE, THIS COURT SHOULD GIVE APPROPRIATE
CONSIDERATION TO THE INTERESTS OF EACH STATE. 

IN RECOGNITION OF THE PARAMOUNT INTEREST OF THE STATE OF DOMICILE
OVER THE MARITAL STATUS OF ITS CITIZENS, THIS COURT HAS HELD THAT
ACTUAL GOOD FAITH DOMICILE OF AT LEAST ONE PARTY IS ESSENTIAL TO CONFER
AUTHORITY AND JURISDICTION ON THE COURTS OF A STATE TO RENDER A DECREE
OF DIVORCE THAT WILL BE ENTITLED TO EXTRATERRITORIAL EFFECT UNDER THE
FULL FAITH AND CREDIT CLAUSE, BELL V. BELL, 181 U.S. 175, EVEN THOUGH
BOTH PARTIES PERSONALLY APPEAR, ANDREWS V. ANDREWS, 188 U.S. 14.  WHEN
THE DOCTRINE OF THOSE CASES IS APPLIED TO THE FACTS OF THIS ONE, THE
QUESTION BECOMES A SIMPLE ONE:  DID PETITIONERS ACQUIRE A BONA FIDE
DOMICILE IN NEVADA?  I AGREE WITH MY BROTHER JACKSON THAT THE ONLY
PROPER ANSWER ON THE RECORD IS, NO. NORTH CAROLINA IS THE STATE IN
WHICH PETITIONERS HAVE THEIR ROOTS, THE STATE TO WHICH THEY IMMEDIATELY
RETURNED AFTER A BRIEF ABSENCE JUST SUFFICIENT TO ACHIEVE THEIR PURPOSE
UNDER NEVADA'S REQUIREMENTS.  IT FOLLOWS THAT THE NEVADA DECREES ARE
ENTITLED TO NO EXTRATERRITORIAL EFFECT WHEN CHALLENGED IN ANOTHER
STATE.  BELL V. BELL, SUPRA; ANDREWS V. ANDREWS, SUPRA.    THIS IS NOT
TO SAY THAT THE NEVADA DECREES ARE WITHOUT ANY LEGAL EFFECT IN THE
STATE OF NEVADA.  THAT QUESTION IS NOT BEFORE US.  IT MAY BE THAT FOR
THE PURPOSES OF THAT STATE THE PETITIONERS HAVE BEEN RELEASED FROM
THEIR MARITAL VOWS, CONSISTENTLY WITH THE PROCEDURAL REQUIREMENTS OF
THE FOURTEENTH AMENDMENT, ON THE BASIS OF COMPLIANCE WITH ITS
RESIDENTIAL REQUIREMENTS AND CONSTRUCTIVE SERVICE OF PROCESS ON THE NON
RESIDENT SPOUSES.  BUT CONCEDING THE VALIDITY IN NEVADA OF ITS DECREES
DISSOLVING THE MARRIAGES, IT DOES NOT MECHANICALLY FOLLOW THAT THE FULL
FAITH AND CREDIT CLAUSE COMPELS NORTH CAROLINA TO ACCEPT THEM. 

WE HAVE RECOGNIZED AN AREA OF FLEXIBILITY IN THE APPLICATION OF THE
CLAUSE TO PRESERVE AND PROTECT STATE POLICIES IN MATTERS OF VITAL
PUBLIC CONCERN.  WE HAVE SAID THAT CONFLICTS BETWEEN SUCH STATE
POLICIES SHOULD BE RESOLVED, "NOT BY GIVING AUTOMATIC EFFECT TO THE
FULL FAITH AND CREDIT CLAUSE,  ...  BUT BY APPRAISING THE GOVERNMENTAL
INTERESTS OF EACH JURISDICTION, AND TURNING THE SCALE OF DECISION
ACCORDING TO THEIR WEIGHT."  ALASKA PACKERS ASSN. V. COMM'N, 294 U.S.
532, 547.  (SEE ALSO MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268, 273
274, AND COMPARE THE DISSENTING OPINION IN YARBOROUGH V. YARBOROUGH,
290 U.S. 202, 213-227.)  THAT CLAUSE SHOULD NO MORE BE READ "WITH
LITERAL EXACTNESS LIKE A MATHEMATICAL FORMULA" THAN ARE OTHER GREAT AND
GENERAL CLAUSES OF THE CONSTITUTION PLACING LIMITATIONS UPON THE STATES
TO WELD US INTO A NATION.  CF. HOME BLDG. & L. ASSN. V. BLAISDELL, 290
U.S. 398, 428.  RATHER IT SHOULD BE CONSTRUED TO HARMONIZE ITS
DIRECTION "WITH THE NECESSARY RESIDUUM OF STATE POWER."  ID., AT P.
435. 

PROMINENT IN THE RESIDUUM OF STATE POWER, AS POINTED OUT ABOVE, IS
THE RIGHT OF A STATE TO DEAL WITH THE MARRIAGE RELATIONS OF ITS
CITIZENS AND TO PURSUE ITS CHOSEN DOMESTIC POLICY OF PUBLIC MORALITY IN
THAT CONNECTION.  BOTH NEVADA AND NORTH CAROLINA HAVE RIGHTS IN THIS
REGARD WHICH ARE ENTITLED TO RECOGNITION.  THE CONFLICT BETWEEN THOSE
RIGHTS HERE SHOULD NOT BE RESOLVED BY EXTENDING INTO NORTH CAROLINA THE
EFFECTS OF NEVADA'S ACTION THROUGH A PERFUNCTORY APPLICATION OF THE
LITERAL LANGUAGE OF THE FULL FAITH AND CREDIT CLAUSE, WITH THE RESULT
THAT MEASURES WHICH NORTH CAROLINA HAS ADOPTED TO SAFEGUARD THE WELFARE
OF HER CITIZENS IN THIS AREA OF LEGITIMATE GOVERNMENTAL CONCERN ARE
UNDERMINED.  WHEN THE INTERESTS ARE CONSIDERED, THOSE OF NORTH CAROLINA
ARE OF SUFFICIENT VALIDITY THAT THEY SHOULD AS CLEARLY FREE HER OF THE
COMPULSIONS OF THE FULL FAITH AND CREDIT CLAUSE AS DID THE INTEREST OF
THE STATE IN THE DEVOLUTION OF PROPERTY WITHIN ITS BOUNDARIES IN FALL
V. EASTIN, 215 U.S. 1; OLMSTED V. OLMSTED, 216 U.S. 386, AND HOOD V.
MCGEHEE, 237 U.S. 611, OR THE INTERESTS OF A STATE IN THE APPLICATION
OF ITS OWN WORKMEN'S COMPENSATION STATUTE IN ALASKA PACKERS ASSN. V.
COMM'N, SUPRA, OR ITS INTEREST IN DECLINING TO ENFORCE THE PENAL LAWS
OF ANOTHER JURISDICTION, CF. HUNTINGTON V. ATTRILL, 146 U.S. 657, 666,
ALL OF WHICH SEEM TO BE MATTERS OF FAR LESS CONCERN TO A STATE THAN THE
UNTRAMMELED ENFORCEMENT WITHIN ITS BORDERS OF THOSE STANDARDS OF PUBLIC
MORALITY WITH REGARD TO THE MARRIAGE RELATION WHICH IT CONSIDERS TO BE
IN THE BEST INTERESTS OF ITS CITIZENS. 

THERE IS AN ELEMENT OF TRAGIC INCONGRUITY IN THE FACT THAT AN
INDIVIDUAL MAY BE VALIDLY DIVORCED IN ONE STATE BUT NOT IN ANOTHER. 
BUT OUR DUAL SYSTEM OF GOVERNMENT AND THE FACT THAT WE HAVE NO UNIFORM
LAWS ON MANY SUBJECTS GIVE RISE TO OTHER INCONGRUITIES AS WELL - FOR
EXAMPLE, THE COMMON LAW TOOK THE LOGICAL POSITION THAT AN INDIVIDUAL
COULD HAVE BUT ONE DOMICILE AT A TIME, BUT THIS COURT HAS NEVERTHELESS
SAID THAT THE FULL FAITH AND CREDIT CLAUSE DOES NOT PREVENT CONFLICTING
STATE DECISIONS ON THE QUESTION OF AN INDIVIDUAL'S DOMICILE.  CF.
WORCESTER COUNTY CO. V. RILEY, 302 U.S. 292, 299.  IN THE ABSENCE OF A
UNIFORM LAW ON THE SUBJECT OF DIVORCE, THIS COURT IS NOT SO LIMITED IN
ITS APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE THAT IT MUST FORCE
NEVADA'S POLICY UPON NORTH CAROLINA, ANY MORE THAN IT MUST COMPEL
NEVADA TO ACCEPT NORTH CAROLINA'S REQUIREMENTS.  THE FAIR RESULT IS TO
LEAVE EACH FREE TO REGULATE WITHIN ITS OWN AREA THE RIGHTS OF ITS OWN
CITIZENS. 

MR. JUSTICE JACKSON, DISSENTING: 

I CANNOT JOIN IN EXERTING THE JUDICIAL POWER OF THE FEDERAL
GOVERNMENT TO COMPEL THE STATE OF NORTH CAROLINA TO SUBORDINATE ITS OWN
LAW TO THE NEVADA DIVORCE DECREES.  THE COURT'S DECISION TO DO SO
REACHES FAR BEYOND THE IMMEDIATE CASE.  IT SUBJECTS MATRIMONIAL LAWS OF
EACH STATE TO IMPORTANT LIMITATIONS AND EXCEPTIONS THAT IT MUST
RECOGNIZE WITHIN ITS OWN BORDERS AND AS TO ITS OWN PERMANENT
POPULATION.  IT NULLIFIES THE POWER OF EACH STATE TO PROTECT ITS OWN
CITIZENS AGAINST DISSOLUTION OF THEIR MARRIAGES BY THE COURTS OF OTHER
STATES WHICH HAVE AN EASIER SYSTEM OF DIVORCE.  IT SUBJECTS EVERY
MARRIAGE TO A NEW INFIRMITY, IN THAT ONE DISSATISFIED SPOUSE MAY CHOOSE
A STATE OF EASY DIVORCE, IN WHICH NEITHER PARTY HAS EVER LIVED, AND
THERE COMMENCE PROCEEDINGS WITHOUT PERSONAL SERVICE OF PROCESS.  THE
SPOUSE REMAINING WITHIN THE STATE OF DOMICILE NEED NEVER KNOW OF THE
PROCEEDINGS.  OR, IF THEY COME TO ONE'S KNOWLEDGE, THE CHOICE IS
BETWEEN EQUALLY USELESS ALTERNATIVES:  ONE IS TO IGNORE THE FOREIGN
PROCEEDINGS, IN WHICH CASE THE MARRIAGE IS QUITE CERTAIN TO BE
DISSOLVED; THE OTHER IS TO FOLLOW THE COMPLAINING SPOUSE TO THE STATE
OF HIS CHOICE AND THERE DEFEND UNDER THE LAWS WHICH GRANT THE
DISSOLUTION ON RELATIVELY TRIVIAL GROUNDS.  TO DECLARE THAT A STATE IS
POWERLESS TO PROTECT EITHER ITS OWN POLICY OR THE FAMILY RIGHTS OF ITS
PEOPLE AGAINST SUCH CONSEQUENCES HAS SERIOUS CONSTITUTIONAL
IMPLICATIONS.  IT IS NOT AN EXAGGERATION TO SAY THAT THIS DECISION
REPEALS THE DIVORCE LAWS OF ALL THE STATES AND SUBSTITUTES THE LAW OF
NEVADA AS TO ALL MARRIAGES ONE OF THE PARTIES TO WHICH CAN AFFORD A
SHORT TRIP THERE.  THE SIGNIFICANCE OF THIS DECISION IS BEST APPRAISED
BY ORIENTING ITS FACTS WITH REFERENCE TO THE STATES INVOLVED, FOR THE
COURT APPROVES THIS CONCRETE CASE AS A PATTERN WHICH ANYBODY IN ANY
STATE MAY HENCEFORTH FOLLOW UNDER THE PROTECTION OF THE FEDERAL
COURTS. 

FROM THE VIEWPOINT OF NORTH CAROLINA, THIS IS THE SITUATION:  THE
WILLIAMSES, NORTH CAROLINA PEOPLE, WERE MARRIED IN NORTH CAROLINA,
LIVED THERE TWENTY-FIVE YEARS, AND HAVE FOUR CHILDREN.  THE HENDRIXES
WERE ALSO MARRIED IN NORTH CAROLINA AND RESIDED THERE SOME TWENTY
YEARS.  IN MAY OF 1940, MR. WILLIAMS AND MRS. HENDRIX LEFT THEIR HOMES
AND RESPECTIVE SPOUSES, DEPARTED THE STATE, BUT AFTER AN ABSENCE OF A
FEW WEEKS REAPPEARED AND SET UP HOUSEKEEPING AS HUSBAND AND WIFE. 
NORTH CAROLINA THEN HAD ON ITS HANDS THREE MARRIAGES AMONG FOUR PEOPLE
IN THE FORM OF TWO BROKEN FAMILIES, AND ONE GOING CONCERN.  WHAT
PROBLEMS WERE THEREBY CREATED AS TO PROPERTY OR SUPPORT AND
MAINTENANCE, WE DO NOT KNOW.  NORTH CAROLINA, FOR GOOD OR ILL, HAS A
STRICT POLICY AS TO DIVORCE.  THE SITUATION IS CONTRARY TO ITS LAWS,
AND IT HAS ATTEMPTED TO VINDICATE ITS OWN LAW BY CONVICTING THE PARTIES
OF BIGAMY. 

THE PETITIONERS ASSERT THAT NORTH CAROLINA IS MADE POWERLESS IN THE
MATTER, HOWEVER, BECAUSE OF PROCEEDINGS CARRIED ON IN NEVADA DURING
THEIR BRIEF ABSENCE FROM NORTH CAROLINA.  WE TURN TO NEVADA FOR THAT
PART OF THE EPISODE. 

WILLIAMS AND MRS. HENDRIX APPEAR IN THE STATE OF NEVADA ON MAY 15,
1940.  FOR BARELY SIX WEEKS THEY MADE THEIR RESIDENCES AT THE ALAMO
AUTO COURT ON THE LAS VEGAS-LOS ANGELES ROAD.  ON JUNE 26, 1940, BOTH
FILED BILLS OF COMPLAINT FOR DIVORCE THROUGH THE SAME LAWYER, AND
ALLEGING ALMOST IDENTICAL GROUNDS.  NO PERSONAL SERVICE WAS MADE ON THE
HOME-STAYING SPOUSE IN EITHER CASE; AND SERVICE WAS HAD ONLY BY
PUBLICATION AND SUBSTITUTED SERVICE.  BOTH OBTAINED DIVORCE DECREES. 
THE NEVADA POLICY OF DIVORCE IS REFLECTED IN MRS. HENDRIX'S CASE.  HER
GROUNDS WERE "EXTREME MENTAL CRUELTY."  SHE SUSTAINED THEM BY
TESTIFYING THAT HER HUSBAND WAS "MOODY"; DID NOT TALK OR SPEAK TO HER
"OFTEN"; WHEN SHE SPOKE TO HIM HE ANSWERED MOST OF THE TIME BY A NOD OR
SHAKE OF THE HEAD AND "THERE WAS NOTHING CHEERFUL ABOUT HIM AT ALL." 
THE LATTER OF THE TWO DIVORCES WAS GRANTED ON OCTOBER 4, 1940, AND ON
THAT DAY IN NEVADA THEY HAD BENEFIT OF CLERGY AND EMERGED AS MAN AND
WIFE.  NEVADA HAVING SERVED ITS PURPOSE IN THEIR AFFAIRS, THEY AT ONCE
RETURNED TO NORTH CAROLINA TO LIVE. 

THE QUESTION IS WHETHER THIS COURT WILL NOW PROHIBIT NORTH CAROLINA
FROM ENFORCING ITS OWN POLICY WITHIN THAT STATE AGAINST THESE NORTH
CAROLINIANS ON THE GROUND THAT THE LAW OF NEVADA UNDER WHICH THEY LIVED
A FEW WEEKS IS IN SOME WAY PROJECTED INTO NORTH CAROLINA TO GIVE THEM
IMMUNITY. 

I.

                     OUR FUNCTION IN THE MATTER. 

THERE IS CONFIDED TO THE COURT ONLY THE POWER TO RESOLVE
CONSTITUTIONAL QUESTIONS RAISED BY THESE DIVORCE PROCEDURES, AND NOT
MORAL, RELIGIOUS, OR SOCIAL QUESTIONS AS TO DIVORCE ITSELF.  I DO NOT
KNOW WITH ANY CERTAINTY WHETHER IN THE LONG RUN STRICT OR EASY DIVORCE
IS BEST FOR SOCIETY OR WHETHER EITHER HAS MUCH EFFECT ON MORAL
CONDUCT.  IT IS ENOUGH FOR JUDICIAL PURPOSES THAT TO EACH STATE IS
RESERVED CONSTITUTIONAL POWER TO DETERMINE ITS OWN DIVORCE POLICY.  IT
FOLLOWS THAT A FEDERAL COURT SHOULD UPHOLD IMPARTIALLY THE RIGHT OF
NEVADA TO ADOPT EASY DIVORCE LAWS AND THE RIGHT OF NORTH CAROLINA TO
ENACT SEVERE ONES.  NO DIFFICULTIES ARISE SO LONG AS EACH STATE APPLIES
ITS LAWS TO ITS OWN PERMANENT INHABITANTS.  THE COMPLICATIONS BEGIN
WHEN ONE STATE OPENS ITS COURTS AND EXTENDS THE PRIVILEGES OF ITS LAWS
TO PERSONS WHO NEVER WERE DOMICILED THERE AND ATTEMPTS TO VISIT
DISADVANTAGES THEREFROM UPON PERSONS WHO HAVE NEVER LIVED THERE, HAVE
NEVER SUBMITTED TO THE JURISDICTION OF ITS COURTS, AND HAVE NEVER BEEN
LAWFULLY SUMMONED BY PERSONAL SERVICE OF PROCESS.  THIS STRIKES AT THE
ORDERLY FUNCTIONING OF OUR FEDERAL CONSTITUTIONAL SYSTEM, AND RAISES
QUESTIONS FOR US. 

THE PREVAILING OPINION RESTS UPON A LINE OF CASES OF WHICH CHRISTMAS
V. RUSSELL, 5 WALL.  290, IS TYPICAL.  THERE IT WAS SAID THAT "IF A
JUDGMENT IS CONCLUSIVE IN THE STATE WHERE IT WAS PRONOUNCED, IT IS
EQUALLY CONCLUSIVE EVERYWHERE."  ID. AT 302.  THIS RULE WAS UTTERED
LONG AGO IN VERY DIFFERENT CIRCUMSTANCES.  THE JUDGMENT THERE IN
QUESTION WAS ON A PROMISSORY NOTE, AND THE COURT ALSO SAID THAT:
"NOTHING CAN BE PLAINER THAN THE PROPOSITION IS, THAT THE JUDGMENT  ...
WAS A VALID JUDGMENT IN THE STATE WHERE IT WAS RENDERED.  JURISDICTION
OF THE CASE WAS UNDENIABLE, AND THE DEFENDANT BEING FOUND IN THAT
JURISDICTION, WAS DULY SERVED WITH PROCESS, AND APPEARED AND MADE FULL
DEFENSE."  ID. AT 301.  BUT THE SAME DEFENDANT TRIED TO RELITIGATE HIS
LOST CAUSE WHEN IT WAS SOUGHT TO GIVE THAT JUDGMENT EFFECT IN HIS HOME
STATE.  THIS COURT PROPERLY HELD THAT IT WAS NOT COMPETENT FOR THE
COURTS OF ANY OTHER STATE TO REOPEN THE MERITS OF THE CAUSE.  THIS VERY
WISE RULE AGAINST COLLATERAL IMPEACHMENT OF AN ORDINARY JUDGMENT BASED
UPON PERSONAL JURISDICTION IS NOW MADE TO SUPPORT THE THEORY THAT WE
MUST ENFORCE THESE VERY DIFFERENT NEVADA JUDGMENTS WITHOUT MORE THAN
FORMAL INQUIRY INTO THE JURISDICTION OF THE COURT THAT RENDERED THEM. 

THE EFFECT OF THE COURT'S DECISION TODAY - THAT WE MUST GIVE
EXTRATERRITORIAL EFFECT TO ANY JUDGMENT THAT A STATE HONORS FOR ITS OWN
PURPOSES - IS TO DEPRIVE THIS COURT OF CONTROL OVER THE OPERATION OF
THE FULL FAITH AND CREDIT AND THE DUE PROCESS CLAUSES OF THE FEDERAL
CONSTITUTION IN CASES OF CONTESTED JURISDICTION AND TO VEST IT IN THE
FIRST STATE TO PASS ON THE FACTS NECESSARY TO JURISDICTION.  IT IS FOR
THIS COURT, I THINK, NOT FOR STATE COURTS, TO IMPLEMENT THESE GREAT BUT
GENERAL CLAUSES BY DEFINING THOSE JUDGMENTS WHICH ARE TO BE FORCED UPON
OTHER STATES. 

CONFLICT BETWEEN POLICIES, LAWS, AND JUDGMENTS OF CONSTITUENT STATES
OF OUR FEDERAL SYSTEM IS AN OLD, PERSISTENT, AND INCREASINGLY COMPLEX
PROBLEM.  THE RIGHT OF EACH STATE TO EXPERIMENT WITH RULES OF ITS OWN
CHOICE FOR GOVERNING MATRIMONIAL AND SOCIAL LIFE IS GREATLY IMPAIRED IF
ITS OWN AUTHORITY IS OVERLAPPED AND ITS OWN POLICY IS OVERRIDDEN BY
JUDGMENTS OF OTHER STATES FORCED ON IT BY THE POWER OF THIS FEDERAL
COURT.  IF WE ARE TO EXTEND PROTECTION TO THE ORDERLY EXERCISE OF THE
RIGHT OF EACH STATE TO MAKE ITS OWN POLICY, WE MUST FIND SOME WAY OF
CONFINING EACH STATE'S AUTHORITY TO MATTERS AND PERSONS THAT ARE BY
SOME STANDARD ITS OWN. 

THE FRAMERS OF THE CONSTITUTION DID NOT LAY DOWN RULES TO GUIDE US IN
SELECTING WHICH OF TWO CONFLICTING STATE JUDGMENTS OR PUBLIC ACTS WOULD
RECEIVE FEDERAL AID IN ITS EXTRATERRITORIAL ENFORCEMENT.  NOR WAS IT
NECESSARY.  THERE WAS, AND IS, AN ADEQUATE BODY OF LAW, IF WE DO NOT
REJECT IT, BY WHICH TO TEST JURISDICTION OR POWER TO RENDER THE
JUDGMENTS IN QUESTION SO FAR AS FAITH AND CREDIT BY FEDERAL COMMAND IS
CONCERNED.  BY THE APPLICATION OF WELL ESTABLISHED RULES THESE
JUDGMENTS FAIL TO MERIT ENFORCEMENT FOR TWO REASONS. 

II.

                     LACK OF DUE PROCESS OF LAW. 

THIRTY-SEVEN YEARS AGO THIS COURT DECIDED THAT A STATE COURT, EVEN OF
THE PLAINTIFF'S DOMICILE, COULD NOT RENDER A JUDGMENT OF DIVORCE THAT
WOULD BE ENTITLED TO FEDERAL ENFORCEMENT IN OTHER STATES AGAINST A
NONRESIDENT WHO DID NOT APPEAR, AND WAS NOT PERSONALLY SERVED WITH
PROCESS.  HADDOCK V. HADDOCK, 201 U.S. 562(1905 TERM).  THE OPINION WAS
MUCH CRITICIZED, PARTICULARLY IN ACADEMIC CIRCLES.  FN1  UNTIL TODAY,
HOWEVER, IT HAS BEEN REGARDED AS LAW, TO BE ACCEPTED AND APPLIED, FOR
GOOD OR ILL, DEPENDING ON ONE'S VIEW OF THE MATTER.  THE THEORETICAL
REASONS FOR THE CHANGE ARE NOT CONVINCING.    THE OPINION CONCEDES THAT
NEVADA'S JUDGMENT COULD NOT BE FORCED UPON NORTH CAROLINA IN ABSENCE OF
PERSONAL SERVICE IF A DIVORCE PROCEEDING WERE AN ACTION IN PERSONAM. 
IN OTHER WORDS, SETTLED FAMILY RELATIONSHIPS MAY BE DESTROYED BY A
PROCEDURE THAT WE WOULD NOT RECOGNIZE IF THE SUIT WERE ONE TO COLLECT A
GROCERY BILL.  FN2 

WE HAVE BEEN TOLD THAT THIS IS BECAUSE DIVORCE IS A PROCEEDING IN
REM.  THE MARRIAGE RELATION IS TO BE REIFIED AND TREATED AS A RES.
THEN IT SEEMS THAT THIS RES FOLLOWS A FUGITIVE FROM MATRIMONY INTO A
STATE OF EASY DIVORCE, ALTHOUGH THE OTHER PARTY TO IT REMAINS AT HOME
WHERE THE RES WAS CONTRACTED AND WHERE YEARS OF COHABITATION WOULD SEEM
TO GIVE IT LOCAL SITUS.  WOULD IT BE LESS LOGICAL TO HOLD THAT THE
CONTINUED PRESENCE OF ONE PARTY TO A MARRIAGE GIVES NORTH CAROLINA
POWER TO PROTECT THE RES, THE MARRIAGE RELATION, THAN TO HOLD THAT THE
TRANSITORY PRESENCE OF ONE GIVES NEVADA POWER TO DESTROY IT?  COUNSEL
AT THE BAR MET THIS DILEMMA BY SUGGESTING THAT THE RES EXISTS IN
DUPLICATE - ONE FOR EACH PARTY TO THE MARRIAGE.  BUT THIS SEEMS FATAL
TO THE DECREE, FOR IF THAT IS TRUE THE DISSOLUTION OF THE RES IN
TRANSIT WOULD HARDLY OPERATE TO DISSOLVE THE RES THAT STAYED IN NORTH
CAROLINA.  OF COURSE THIS DISCUSSION IS ONLY TO REVEAL THE ARTIFICIAL
AND FICTIONAL CHARACTER OF THE WHOLE DOCTRINE OF A RES AS APPLIED TO A
DIVORCE ACTION. 

I DOUBT THAT IT PROMOTES CLARITY OF THINKING TO DEAL WITH MARRIAGE IN
TERMS OF A RES, LIKE A PIECE OF LAND OR A CHATTEL.  IT MIGHT BE MORE
HELPFUL TO THINK OF MARRIAGE AS JUST MARRIAGE - A RELATIONSHIP OUT OF
WHICH SPRING DUTIES TO BOTH SPOUSE AND SOCIETY AND FROM WHICH ARE
DERIVED RIGHTS,  - SUCH AS THE RIGHT TO SOCIETY AND SERVICES AND TO
CONJUGAL LOVE AND AFFECTION - RIGHTS WHICH GENERALLY PROVE TO BE EITHER
PRICELESS OR WORTHLESS, BUT WHICH NONE THE LESS THE LAW SOMETIMES
ATTEMPTS TO EVALUATE IN TERMS OF MONEY WHEN ONE IS DEPRIVED OF THEM BY
THE NEGLIGENCE OR DESIGN OF A THIRD PARTY. 

IT DOES NOT SEEM CONSISTENT WITH OUR LEGAL SYSTEM THAT ONE WHO HAS
THESE CONTINUING RIGHTS SHOULD BE DEPRIVED OF THEM WITHOUT A HEARING. 
NEITHER DOES IT SEEM THAT HE OR SHE SHOULD BE SUMMONED BY MAIL,
PUBLICATION, OR OTHERWISE TO A REMOTE JURISDICTION CHOSEN BY THE OTHER
PARTY AND THERE BE OBLIGED TO SUBMIT MARITAL RIGHTS TO ADJUDICATION
UNDER A STATE POLICY AT ODDS WITH THAT OF THE STATE UNDER WHICH THE
MARRIAGE WAS CONTRACTED AND THE MATRIMONIAL DOMICILE WAS ESTABLISHED. 

MARRIAGE IS OFTEN DEALT WITH AS A CONTRACT.  OF COURSE A PERSONAL
JUDGMENT COULD NOT BE RENDERED AGAINST AN ABSENT PARTY ON A CAUSE OF
ACTION ARISING OUT OF AN ORDINARY COMMERCIAL CONTRACT, WITHOUT PERSONAL
SERVICE OF PROCESS.  I SEE NO REASON WHY THE MARRIAGE CONTRACT, IF SUCH
IT BE CONSIDERED, SHOULD BE DISCRIMINATED AGAINST, NOR WHY A PARTY TO A
MARRIAGE CONTRACT SHOULD BE MORE VULNERABLE TO A FOREIGN JUDGMENT
WITHOUT PROCESS THAN A PARTY TO ANY OTHER CONTRACT.  I AGREE THAT THE
MARRIAGE CONTRACT IS DIFFERENT, BUT I SHOULD THINK THE DIFFERENCE WOULD
BE IN ITS FAVOR. 

THE COURT THINKS THE DIFFERENCE IS THE OTHER WAY:  WE ARE TOLD THAT
DIVORCE IS NOT A "MERE IN PERSONAM ACTION" SINCE HADDOCK V. HADDOCK,
SUPRA, HELD THAT DOMICILE IS NECESSARY TO JURISDICTION FOR DIVORCE. 
BUT TO HOLD THAT A STATE CANNOT HAVE DIVORCE JURISDICTION UNLESS IT IS
THE DOMICILE IS NOT TO HOLD THAT IT MUST HAVE SUCH JURISDICTION IF IT
IS THE DOMICILE, AS HADDOCK V. HADDOCK ITSELF DEMONSTRATES.  FURTHER
SUPPORT FOR THIS VIEW SEEMS TO BE SEEN IN MAYNARD V. HILL, 125 U.S.
190, AND IN THE COURT'S SUBSEQUENT APPROVAL OF THAT CASE IN HADDOCK V.
HADDOCK, SUPRA, AT 569, 572, 574, 575, 579.  ALL THAT MAYNARD V. HILL
DECIDED WAS THAT THE TERRITORY OF WASHINGTON HAD JURISDICTION TO CUT
OFF ANY INTEREST OF AN ABSENT SPOUSE IN LAND WITHIN ITS BORDERS.  BUT
PROTECTION OF LAND IN THE JURISDICTION AND PROTECTION AGAINST BIGAMY
PROSECUTIONS OUT OF THE JURISDICTION ARE PLAINLY DIFFERENT MATTERS. 
FN3 

ALTHOUGH THE COURT CONCEDES THAT ITS PRESENT DECISION WOULD BE
INSUPPORTABLE IF DIVORCE WERE A "MERE IN PERSONAM ACTION," IT RELIES
FOR SUPPORT ON OPINIONS THAT THE STATE WHERE ONE IS DOMICILED HAS THE
POWER TO ENTER VALID CRIMINAL, TAX, AND SIMPLE MONEY JUDGMENTS AGAINST
NOT FOR - HIM.  FN4  THOSE OPINIONS ARE WHOLLY INAPPOSITE UNLESS THEY
MEAN THAT NEVADA HAS JURISDICTION TO NULLIFY CONTRACT RIGHTS OF A
PERSON NEVER IN THE STATE OR TO DECLARE THAT HE IS NOT LIABLE FOR THE
COMMISSION OF CRIME, PAYMENT OF TAXES, OR THE BREACH OF A CONTRACT, IN
ANOTHER STATE; AND I AM SURE THAT NOBODY HAS EVER SUPPOSED THEY MEANT
THAT. 

TO HOLD THAT THE NEVADA JUDGMENTS WERE NOT BINDING IN NORTH CAROLINA
BECAUSE THEY WERE RENDERED WITHOUT JURISDICTION OVER THE NORTH CAROLINA
SPOUSES, IT IS NOT NECESSARY TO HOLD THAT THEY WERE WITHOUT ANY
CONCEIVABLE VALIDITY.  IT MAY BE, AND PROBABLY IS, TRUE THAT NEVADA HAS
SUFFICIENT INTEREST IN THE LIVES OF THOSE WHO SOJOURN THERE TO FREE
THEM AND THEIR SPOUSES TO TAKE NEW SPOUSES WITHOUT INCURRING CRIMINAL
PENALTIES UNDER NEVADA LAW.  I KNOW OF NOTHING IN OUR CONSTITUTION THAT
REQUIRES NEVADA TO ADHERE TO TRADITIONAL CONCEPTS OF BIGAMOUS UNIONS OR
THE LEGITIMACY OF THE FRUIT THEREOF.  AND THE CONTROL OF A STATE OVER
PROPERTY WITHIN ITS BORDERS IS SO COMPLETE THAT I SUPPOSE THAT NEVADA
COULD EFFECTIVELY DEAL WITH IT IN THE NAME OF DIVORCE AS COMPLETELY AS
IN ANY OTHER.  FN5  BUT IT IS QUITE A DIFFERENT THING TO SAY THAT
NEVADA CAN DISSOLVE THE MARRIAGES OF NORTH CAROLINIANS AND DICTATE THE
INCIDENCE OF THE BIGAMY STATUTES OF NORTH CAROLINA BY WHICH NORTH
CAROLINA HAS SOUGHT TO PROTECT HER OWN INTERESTS AS WELL AS THEIRS.  IN
THIS CASE THERE IS NO CONCEIVABLE BASIS OF JURISDICTION IN THE NEVADA
COURT OVER THE ABSENT SPOUSES,  FN6  AND, A FORTIORI, OVER NORTH
CAROLINA HERSELF.  I CANNOT BUT THINK THAT IN ITS PREOCCUPATION WITH
THE FULL FAITH AND CREDIT CLAUSE THE COURT HAS SLIGHTED THE DUE PROCESS
CLAUSE. 

                              III. 

    LACK OF DOMICILE. 

WE SHOULD, I THINK, REQUIRE THAT DIVORCE JUDGMENTS ASKING OUR
ENFORCEMENT UNDER THE FULL FAITH AND CREDIT CLAUSE, UNLIKE JUDGMENTS
ARISING OUT OF COMMERCIAL TRANSACTIONS AND THE LIKE, MUST ALSO BE
SUPPORTED BY GOOD-FAITH DOMICILE OF ONE OF THE PARTIES WITHIN THE
JUDGMENT STATE.  FN7  SUCH IS CERTAINLY A REASONABLE REQUIREMENT.  A
STATE CAN HAVE NO LEGITIMATE CONCERN WITH THE MATRIMONIAL STATUS OF TWO
PERSONS, NEITHER OF WHOM LIVES WITHIN ITS TERRITORY. 

THE COURT WOULD SEEM, INDEED, TO PAY LIP SERVICE TO THIS PRINCIPLE. 
I UNDERSTAND THE HOLDING TO BE THAT IT IS DOMICILE IN NEVADA THAT GAVE
POWER TO PROCEED WITHOUT PERSONAL SERVICE OF PROCESS.  THAT BEING THE
COURSE OF REASONING, I DO NOT SEE HOW WE AVOID THE ISSUE CONCERNING THE
EXISTENCE OF THE DOMICILE WHICH THE FACTS ON THE FACE OF THIS RECORD
PUT TO US.  CERTAINLY WE CANNOT, AS THE COURT WOULD, BY-PASS THE MATTER
BY SAYING THAT "WE MUST TREAT THE PRESENT CASE FOR THE PURPOSE OF THE
LIMITED ISSUE BEFORE US PRECISELY THE SAME AS IF PETITIONERS HAD
RESIDED IN NEVADA FOR A TERM OF YEARS AND HAD LONG AGO ACQUIRED A
PERMANENT ABODE THERE."  I THINK WE SHOULD TREAT IT AS IF THEY HAD DONE
JUST WHAT THEY HAVE DONE. 

THE ONLY SUGGESTION OF A DOMICILE WITHIN NEVADA WAS A STAY OF ABOUT
SIX WEEKS AT THE ALAMO AUTO COURT, AN ADDRESS HARDLY SUGGESTIVE OF
PERMANENCE.  MRS. HENDRIX TESTIFIED IN HER CASE (THE EVIDENCE IN
WILLIAMS' CASE IS NOT BEFORE US) THAT HER RESIDENCE IN NEVADA WAS
"INDEFINITE PERMANENT" IN CHARACTER.  THE NEVADA COURT MADE NO FINDING
THAT THE PARTIES HAD A "DOMICILE" THERE.  IT ONLY FOUND A RESIDENCE -
SOMETIMES, BUT NOT NECESSARILY, AN EQUIVALENT.  FN8  IT IS THIS COURT
THAT ACCEPTS THESE FACTS AS ENOUGH TO ESTABLISH DOMICILE. 

WHILE A STATE CAN NO DOUBT SET UP ITS OWN STANDARDS OF DOMICILE AS TO
ITS INTERNAL CONCERNS, I DO NOT THINK IT CAN REQUIRE US TO ACCEPT AND
IN THE NAME OF THE CONSTITUTION IMPOSE THEM ON OTHER STATES.  IF NEVADA
MAY PRESCRIBE SIX WEEKS OF INDEFINITE-PERMANENT ABODE IN A MOTOR COURT
AS CONSTITUTING DOMICILE, SHE MAY AS READILY PRESCRIBE SIX DAYS. 
INDEED, IF THE COURT'S OPINION IS CARRIED TO ITS LOGICAL CONCLUSION, A
STATE COULD GRANT A CONSTRUCTIVE DOMICILE FOR DIVORCE PURPOSES UPON THE
FILING OF SOME SORT OF DECLARATION OF INTENTION.  THEN IT WOULD FOLLOW
THAT WE WOULD BE REQUIRED TO ACCEPT IT AS SUFFICIENT AND TO FORCE ALL
STATES TO RECOGNIZE MAIL-ORDER DIVORCES AS WELL AS TOURIST DIVORCES. 
INDEED, THE DIFFERENCE IS IN THE BOTHER AND EXPENSE - NOT IN THE
PRINCIPLE OF THE THING. 

THE CONCEPT OF DOMICILE AS A CONTROLLING FACTOR IN CHOICE OF LAW TO
GOVERN MANY RELATIONS OF THE INDIVIDUAL WAS WELL KNOWN TO THE FRAMERS
OF THE CONSTITUTION.  IT WAS HARDLY CONTEMPLATED THAT A PERSON SHOULD
BE SUBJECT AT ONCE TO TWO CONFLICTING STATE POLICIES, SUCH AS THOSE OF
NEVADA AND NORTH CAROLINA.  IT WAS UNDOUBTEDLY EXPECTED THAT THE COURT
WOULD IN MANY CASES OF CONFLICT USE ONE'S DOMICILE AS AN APPROPRIATE
GUIDE IN SELECTING THE LAW TO GOVERN HIS CONTROVERSIES. 

DOMICILE MEANS A RELATIONSHIP BETWEEN A PERSON AND A LOCALITY.  IT IS
THE PLACE, AND THE ONE PLACE, WHERE HE HAS HIS ROOTS AND HIS REAL,
PERMANENT HOME.  THE FOURTEENTH AMENDMENT, IN PROVIDING THAT ONE BY
RESIDENCE IN A STATE BECOMES A CITIZEN THEREOF, PROBABLY USED
"RESIDENCE" AS SYNONYMOUS WITH DOMICILE.  THUS DOMICILE FIXES THE PLACE
WHERE ONE BELONGS IN OUR FEDERAL SYSTEM.  IN SOME INSTANCES THE
EXISTENCE OF THIS RELATIONSHIP BETWEEN THE STATE AND AN INDIVIDUAL MAY
BE A FEDERAL QUESTION, ALTHOUGH THIS COURT HAS BEEN RELUCTANT TO ACCEPT
THAT VIEW.  FN9 

IF IN TESTING THIS JUDGMENT TO DETERMINE WHETHER IT QUALIFIES FOR
FEDERAL ENFORCEMENT WE SHOULD APPLY THE DOCTRINE OF DOMICILE TO
INTERPRETATION OF THE FULL FAITH AND CREDIT CLAUSE, NEVADA WOULD BE
HELD TO A DUTY TO RESPECT THE STATUTES OF NORTH CAROLINA AND NOT TO
INTERFERE WITH THEIR APPLICATION TO THOSE WHOSE INDIVIDUAL AS WELL AS
MATRIMONIAL DOMICILE IS WITHIN THAT STATE UNLESS AND UNTIL THAT
DOMICILE HAS BEEN TERMINATED.  AND NORTH CAROLINA WOULD NOT BE REQUIRED
TO YIELD ITS POLICY AS TO PERSONS RESIDENT THERE EXCEPT UPON A SHOWING
THAT NEVADA HAD ACQUIRED A DOMICILIARY RIGHT TO REDEFINE THE
MATRIMONIAL STATUS. 

HOWEVER, THE TREND OF RECENT DECISION HAS BEEN TO BREAK DOWN THE
RIGID CONCEPT OF DOMICILE AS A TEST OF THE RIGHT OF A STATE TO DEAL
WITH IMPORTANT RELATIONS OF LIFE.  THIS TREND HAS BEEN PARTICULARLY
APPARENT IN CASES WHERE THE COURT HAS AUTHORIZED, IF NOT INDEED
ENCOURAGED, THE SEVERAL STATES TO SET UP THEIR OWN STANDARDS OF
DOMICILE AND TO MAKE CONFLICTING FINDINGS OF DOMICILE FOR THE PURPOSE
OF TAXING THE RIGHT OF SUCCESSION.  WORCESTER COUNTY TRUST CO. V.
RILEY, 302 U.S. 292.  THE COURT HAS COMPLETELY REPUDIATED DOMICILE AS
THE MEASURE OF A STATE'S RIGHT TO TAX INTANGIBLE PROPERTY.  STATE TAX
COMMISSION V. ALDRICH, 316 U.S. 174, 185.  THE PRESENT DECISION EXTENDS
THE TREND TO THE FIELD OF MATRIMONIAL LEGISLATION.  THIS DIRECTION IS
CONTRARY TO WHAT I BELIEVE TO BE THE PURPOSE OF OUR CONSTITUTION TO
PREVENT OVERLAPPING AND CONFLICT OF AUTHORITY BETWEEN THE STATES. 

IN THE APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE TO THE VARIETY
OF CIRCUMSTANCES THAT ARISE WHEN FAMILIES BREAK UP AND SEPARATE
DOMICILES ARE ESTABLISHED, THERE ARE, I GRANT, MANY AREAS OF GREAT
DIFFICULTY.  BUT I CANNOT BELIEVE THAT WE ARE JUSTIFIED IN MAKING A
DEMORALIZING DECISION IN ORDER TO AVOID MAKING DIFFICULT ONES. 

                                 IV.

                      PRACTICAL CONSIDERATIONS. 

THE COURT SAYS THAT ITS JUDGMENT IS "PART OF THE PRICE OF OUR FEDERAL
SYSTEM."  IT IS A PRICE THAT WE DID NOT HAVE TO PAY YESTERDAY AND THAT
WE WILL HAVE TO PAY TOMORROW, ONLY BECAUSE THIS COURT HAS WILLED IT TO
BE SO TODAY.  THIS COURT MAY FOLLOW PRECEDENTS, IRRESPECTIVE OF THEIR
MERITS, AS A MATTER OF OBEDIENCE TO THE RULE OF STARE DECISIS. 
CONSISTENCY AND STABILITY MAY BE SO SERVED.  THEY ARE ENDS DESIRABLE IN
THEMSELVES, FOR ONLY THEREBY CAN THE LAW BE PREDICTABLE TO THOSE WHO
MUST SHAPE THEIR CONDUCT BY IT AND TO LOWER COURTS WHICH MUST APPLY IT.
BUT WE CAN BREAK WITH ESTABLISHED LAW, OVERRULE PRECEDENTS, AND START
A NEW CLUSTER OF LEADING CASES TO DEFINE WHAT WE MEAN, ONLY AS A MATTER
OF DELIBERATE POLICY.  WE THEREFORE SEARCH A JUDICIAL PRONOUNCEMENT
THAT USHERS IN A NEW ORDER OF MATRIMONIAL CONFUSION AND
IRRESPONSIBILITY FOR SOME HINT OF THE COUNTERVAILING PUBLIC GOOD THAT
IS BELIEVED TO BE SERVED BY THE CHANGE.  LITTLE JUSTIFICATION IS
OFFERED.  AND IT IS DIFFICULT TO BELIEVE THAT WHAT IS OFFERED IS
INTENDED SERIOUSLY. 

THE COURT ADVANCES TWO "INTENSELY PRACTICAL CONSIDERATIONS" IN
SUPPORT OF ITS PRESENT DECISION.  ONE IS THE "COMPLICATED AND SERIOUS
CONDITION" IF "ONE IS LAWFULLY DIVORCED AND REMARRIED IN NEVADA AND
STILL MARRIED TO THE FIRST SPOUSE IN NORTH CAROLINA."  THIS OF COURSE
BEGS THE QUESTION, FOR THE DIVORCES WERE COMPLETELY INEFFECTUAL FOR ANY
PURPOSE RELEVANT TO THIS CASE.  I AGREE THAT IT IS SERIOUS IF A NEVADA
COURT WITHOUT JURISDICTION FOR DIVORCE PURPORTS TO SAY THAT THE SOJOURN
OF TWO SPOUSES GIVES FOUR SPOUSES RIGHTS TO ACQUIRE FOUR MORE, BUT I
THINK IT FAR MORE SERIOUS TO FORCE NORTH CAROLINA TO ACQUIESCE IN ANY
SUCH PROPOSITION.  THE OTHER CONSIDERATION ADVANCED IS THAT IF THE
COURT DOESN'T ENFORCE DIVORCES SUCH AS THESE IT WILL, AS IT PUTS IT,
"BASTARDIZE" CHILDREN OF THE DIVORCEES.  WHEN THIRTY-SEVEN YEARS AGO
MR. JUSTICE HOLMES PERPETRATED THIS QUIP, IT HAD POINT, FOR THE COURT
WAS THEN HOLDING DIVORCES INVALID WHICH MANY, DUE TO THE CONFUSED STATE
OF THE LAW, HAD THOUGHT TO BE GOOD.  IT IS DIFFICULT TO FIND THAT IT
HAS POINT NOW THAT THE SHOE IS ON THE OTHER FOOT.  IN ANY EVENT, I HAD
SUPPOSED THAT OUR JUDICIAL RESPONSIBILITY IS FOR THE REGULARITY OF THE
LAW, NOT FOR THE REGULARITY OF PEDIGREES.    FN1  IT WAS TWENTY YEARS
BEFORE PROFESSOR BEALE COULD JUSTIFY THE DECISION TO HIS SATISFACTION. 
COMPARE HADDOCK REVISITED, 39 HARVARD LAW REVIEW 417, WITH BEALE,
CONSTITUTIONAL PROTECTION OF DECREES FOR DIVORCE, 19 HARVARD LAW REVIEW
586.  OTHERS SEEM TO LACK HIS CAPACITY FOR QUICK ADJUSTMENT. 

FN2  PENNOYER V. NEFF, 95 U.S. 714; RIVERSIDE & DAN RIVER COTTON
MILLS V. MENEFFEE, 237 U.S. 189; CF. MCDONALD V. MABEE, 243 U.S. 90;
FLEXNER V. FARSON, 248 U.S. 289; DOHERTY & CO. V. GOODMAN, 294 U.S.
623; MILLIKEN V. MEYER, 311 U.S. 457. 

FN3  CF. ARNDT V. GRIGGS, 134 U.S. 316; DEWEY V. DES MOINES, 173 U.S.
193; FALL V. EASTIN, 215 U.S. 1; OLMSTED V. OLMSTED, 216 U.S. 386; HOOD
V. MCGEHEE, 237 U.S. 611; GRANNIS V. ORDEAN, 234 U.S. 385; CLARK V.
WILLIARD, 294 U.S. 211; PINK V. A.A.A. HIGHWAY EXPRESS CO., 314 U.S.
201. 

FN4  LAWRENCE V. STATE TAX COMMISSION, 286 U.S. 276, 279; NEW YORK EX
REL. COHN V. GRAVES, 300 U.S. 308, 313; MILLIKEN V. MEYER, 311 U.S.
457, 463-464; SKIRIOTES V. FLORIDA, 313 U.S. 69. 

FN5  CF. ARNDT V. GRIGGS; DEWEY V. DES MOINES; GRANNIS V. ORDEAN;
CLARK V. WILLIARD, SUPRA, NOTE 3. 

FN6 A SPOUSE WHO APPEARS AND CONTESTS THE JURISDICTION OF THE COURT
OF ANOTHER STATE TO GRANT A DIVORCE MAY NOT COLLATERALLY ATTACK ITS
FINDINGS OF DOMICILE AND JURISDICTION MADE AFTER SUCH APPEARANCE. 
DAVIS V. DAVIS, 305 U.S. 32.  SO ALSO, A DESERTER FROM THE MATRIMONIAL
DOMICILE MAY BE BOUND BY A DIVORCE GRANTED BY A COURT OF THE STATE
WHERE THE MATRIMONIAL DOMICILE IS SITUATED.  WHETHER FAULT ON THE PART
OF THE DESERTER IS AN ESSENTIAL SEEMS ON THE BASIS OF OUR CASES ON
JURISDICTION FOR DIVORCE TO BE AN OPEN QUESTION; ATHERTON V. ATHERTON,
181 U.S. 155; HADDOCK V. HADDOCK, SUPRA, AT 570, 572, 583; AND THOMPSON
V. THOMPSON, 226 U.S. 551; BUT OUR DECISIONS ON ANALOGOUS PROBLEMS
MIGHT BE FOUND TO AFFORD ADEQUATE SUPPORT FOR A DECISION THAT IT IS
NOT.  CF. WASHINGTON EX REL. BOND & GOODWIN & TUCKER V. SUPERIOR COURT,
289 U.S. 361; DOHERTY & CO. V. GOODMAN, 294 U.S. 623.  SEE, FURTHER,
RESTATEMENT, CONFLICT OF LAWS, SECS. 112, 113. 

FN7  THIS WAS THE DECISION IN BELL V. BELL, 181 U.S. 175; AND ANDREWS
V. ANDREWS, 188 U.S. 14.  DAVIS V. DAVIS, SUPRA, NOTE 6, IN NO WAY
INDICATES THAT A FINDING OF DOMICILE AFTER APPEARANCE OF THE ABSENT
SPOUSE AND LITIGATION OF THE QUESTION WOULD BE CONCLUSIVE UPON THE
STATE OF HIS DOMICILE IN LITIGATION INVOLVING ITS INTERESTS AND NOT
MERELY THOSE OF THE PARTIES.  CF. STOLL V. GOTTLIEB, 305 U.S. 165, 172,
N. 13. 

FN8  1 BEALE, CONFLICT OF LAWS (1935) SEC. 10.3. 

FN9  COMPARE TEXAS V. FLORIDA, 306 U.S. 398, WITH MASSACHUSETTS V.
MISSOURI, 308 U.S. 1.  AND SEE TWEED AND SARGENT, DEATH AND TAXATION
ARE CERTAIN - BUT WHAT OF DOMICILE?, 53 HARVARD LAW REVIEW 68, 76;
"TEXAS V. FLORIDA DOES NOT HELP THE SITUATION IN THE ORDINARY CASE
BECAUSE AT THE RATES OF TAX PREVAILING IN MOST OF THE STATES A
CONTROVERSY BETWEEN THE STATES OF WHICH THE SUPREME COURT HAS
JURISDICTION CAN ARISE ONLY IF AT LEAST FOUR STATES CLAIM A TAX AND THE
ESTATE CONSISTS OF INTANGIBLE PROPERTY HAVING A VALUE OF AT LEAST
$30,000,000.  ON NO OTHER STATE OF FACTS WILL THE ASSETS BE
INSUFFICIENT TO MEET THE CLAIMS OF ALL OF THE CLAIMANT STATES." 
..END :






















SHARPE V. BUCHANAN, WARDEN, 317 U.S. 238 


NO. 525.  DECIDED DECEMBER 14, 1942.  - 121 F.2D 448, VACATED. 


WHERE A JUDGMENT OF THE CIRCUIT COURT OF APPEALS AFFIRMING THE
DISTRICT COURT'S REFUSAL OF HABEAS CORPUS WAS UPON THE SOLE GROUND THAT
THE APPLICANT, WHO WAS CONFINED IN A STATE PENITENTIARY, HAD NOT
APPLIED FOR HABEAS CORPUS TO THE STATE COURTS, THIS COURT VACATED THE
JUDGMENT BECAUSE, AFTER THE FILING OF THE PETITION FOR CERTIORARI HERE,
HABEAS CORPUS HAD BEEN EXPRESSLY REFUSED BY THE STATE'S HIGHEST COURT. 
P. 238. 

SHARPE V. BUCHANAN, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE SIXTH CIRCUIT. 

PETITION FOR WRIT OF CERTIORARI TO REVIEW THE AFFIRMANCE OF A
JUDGMENT DENYING HABEAS CORPUS, 36 F.SUPP.  386. 

PER CURIAM. 

THE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED AND THE
PETITION FOR CERTIORARI IS ALSO GRANTED.  IT APPEARS FROM THE RECORD
THAT, AFTER HEARING, THE DISTRICT COURT DENIED AN APPLICATION FOR
HABEAS CORPUS FILED BY PETITIONER, WHO IS CONFINED IN A STATE
PENITENTIARY PURSUANT TO A JUDGMENT OF CONVICTION OF A STATE COURT. 
THE CIRCUIT COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S ORDER, 121
F.2D 448, ON THE SOLE GROUND THAT PETITIONER HAD NOT EXHAUSTED HIS
STATE REMEDIES BY APPLYING TO THE STATE COURTS FOR HABEAS CORPUS,
ALTHOUGH AN APPLICATION FOR A WRIT OF ERROR CORAM NOBIS HAD PREVIOUSLY
BEEN DENIED BY THE KENTUCKY COURT OF APPEALS.  SHARPE V. COMMONWEALTH,
284 KY. 88, 143 S.W.2D 857.  THE CIRCUIT COURT OF APPEALS DENIED A
PETITION FOR REHEARING, WHEN IT APPEARED THAT AN APPLICATION FOR HABEAS
CORPUS, FILED IN A STATE COURT AFTER THE CIRCUIT COURT OF APPEALS HAD
RENDERED ITS JUDGMENT, WAS STILL PENDING ON APPEAL IN THE KENTUCKY
COURT OF APPEALS.  AFTER THE PETITION FOR CERTIORARI WAS FILED HERE,
THE KENTUCKY COURT OF APPEALS AFFIRMED THE STATE COURT'S ORDER DENYING
HABEAS CORPUS.  SHARPE V. COMMONWEALTH, 292 KY. 86, 165 S.W.2D 993.  IT
THUS APPEARS THAT THIS OBSTACLE TO A CONSIDERATION OF THE MERITS OF
PETITIONER'S APPLICATION, WHICH THE CIRCUIT COURT OF APPEALS
ENCOUNTERED, HAS NOW BEEN REMOVED.  THE JUDGMENT IS THEREFORE VACATED,
WITHOUT COSTS, AND THE CAUSE REMANDED TO THE CIRCUIT COURT OF APPEALS
FOR SUCH FURTHER PROCEEDINGS AS IT MAY DEEM APPROPRIATE.  SO ORDERED. 
..END :







GARRETT V. MOORE-MCCORMACK CO., 317 U.S. 239 


NO. 67.  ARGUED NOVEMBER 12, 1942.  - DECIDED DECEMBER 14, 1942.  - 344
PA. 69, 23 A.2D 503, REVERSED. 


1.  IN A SUIT BY A SEAMAN IN A STATE COURT FOR DAMAGES UNDER SEC. 33
OF THE MERCHANT MARINE ACT AND FOR MAINTENANCE AND CURE, THE RIGHTS OF
THE PARTIES ARE MEASURED BY THE FEDERAL STATUTE AND ADMIRALTY
PRINCIPLES.  P. 243. 

2.  THE QUESTION WHETHER A STATE COURT, IN AN ACTION FOR DAMAGES
UNDER SEC. 33 OF THE MERCHANT MARINE ACT AND FOR MAINTENANCE AND CURE,
PROTECTED ALL THE SUBSTANTIAL RIGHTS OF THE PARTIES UNDER CONTROLLING
FEDERAL LAW IS A FEDERAL QUESTION REVIEWABLE UNDER SEC. 237(B) OF THE
JUDICIAL CODE.  P. 245. 

3.  A SHIPOWNER, WHO, IN DEFENSE OF AN ACTION BY A SEAMAN FOR
PERSONAL INJURIES, SETS UP THE SEAMAN'S RELEASE, IS UNDER THE BURDEN OF
PROVING THAT IT WAS EXECUTED FREELY, WITHOUT DECEPTION OR COERCION, AND
THAT IT WAS MADE BY THE SEAMAN WITH FULL UNDERSTANDING OF HIS RIGHTS. 
THE ADEQUACY OF THE CONSIDERATION AND THE NATURE OF THE MEDICAL AND
LEGAL ADVICE AVAILABLE TO THE SEAMAN AT THE TIME OF SIGNING THE RELEASE
ARE RELEVANT TO AN APPRAISAL OF THIS UNDERSTANDING.  P. 246. 

4.  THIS GENERAL ADMIRALTY RULE APPLIES NOT ONLY TO ACTIONS FOR
MAINTENANCE AND CURE BUT ALSO TO ACTIONS FOR DAMAGES UNDER SEC. 33 OF
THE MERCHANT MARINE ACT.  P. 248. 

5.  SECTION 33 OF THE MERCHANT MARINE ACT IS TO BE LIBERALLY
CONSTRUED FOR THE SEAMAN'S PROTECTION; IT IS AN INTEGRAL PART OF THE
MARITIME LAW, AND RIGHTS FASHIONED BY IT ARE TO BE IMPLEMENTED BY
ADMIRALTY RULES NOT INCONSISTENT WITH THE ACT.  P. 248. 

6.  THE RIGHT OF A SEAMAN SUING IN A PENNSYLVANIA COURT UNDER SEC. 33
OF THE MERCHANT MARINE ACT TO BE FREE FROM THE BURDEN OF PROOF IMPOSED
BY PENNSYLVANIA LAW UPON ONE ATTACKING THE VALIDITY OF A WRITTEN
RELEASE, IS A SUBSTANTIVE RIGHT INHERENT IN HIS CAUSE OF ACTION.  P.
249. 

GARRETT V. MOORE-MCCORMACK CO., INC. ET AL. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

CERTIORARI, 316 U.S. 656, TO REVIEW THE AFFIRMANCE OF A JUDGMENT NON
OBSTANTE VEREDICTO RENDERED AGAINST THE PRESENT PETITIONER IN A SUIT
FOR DAMAGES AND FOR MAINTENANCE AND CURE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS INJURED WHILE WORKING AS A SEAMAN FOR RESPONDENT
ON A VESSEL TRAVELING BETWEEN THE UNITED STATES AND EUROPEAN PORTS, AND
SPENT A NUMBER OF MONTHS IN HOSPITALS IN GDYNIA, POLAND, AND IN THE
UNITED STATES.  HE BROUGHT THIS SUIT IN A PENNSYLVANIA STATE COURT FOR
DAMAGES PURSUANT TO SEC. 33 OF THE MERCHANT MARINE (JONES) ACT,  FN1
AND FOR MAINTENANCE AND CURE.  FN2 THE PENNSYLVANIA COURTS, AS THIS
LITIGATION EVIDENCES, ARE APPARENTLY QUITE WILLING TO MAKE THEMSELVES
AVAILABLE FOR THE ENFORCEMENT OF THESE RIGHTS. 

PETITIONER ATTRIBUTED HIS CONDITION TO A BLOW BY A HATCH COVER WHICH
ALLEGEDLY FELL ON HIM THROUGH RESPONDENT'S NEGLIGENCE.  RESPONDENT
JOINED ISSUE GENERALLY, CONTESTED THE EXTENT OF ANY INJURIES RECEIVED,
AND FURTHER CONTENDED THAT IF SERIOUS INJURIES DID EXIST THEY WERE
CAUSED BY A FIGHT IN COPENHAGEN OR BY ACCIDENTS PRIOR TO THE VOYAGE. 
AS AN ADDITIONAL DEFENSE THE RESPONDENT ALSO ALLEGED THAT FOR A
CONSIDERATION OF $100 PETITIONER HAD EXECUTED A FULL RELEASE.  DENYING
THAT HE HAD ANY KNOWLEDGE OF HAVING SIGNED SUCH AN INSTRUMENT, THE
PETITIONER ASSERTED THAT, IF HIS NAME APPEARED ON IT, HIS SIGNATURE WAS
OBTAINED THROUGH FRAUD AND MISREPRESENTATION, AND WITHOUT "LEGAL,
BINDING AND VALID CONSIDERATION." 

THE PETITIONER DID EXECUTE A RELEASE FOR $100 SEVERAL DAYS AFTER HIS
RETURN TO THIS COUNTRY.  HIS TESTIMONY WAS THAT HIS DISCUSSION WITH
RESPONDENT'S CLAIM AGENT TOOK PLACE WHILE HE WAS UNDER THE INFLUENCE OF
DRUGS TAKEN TO ALLAY THE PAIN OF HIS INJURY, THAT HE WAS THREATENED
WITH IMPRISONMENT IF HE DID NOT SIGN AS DIRECTED, AND THAT HE
CONSIDERED THE $100 A PAYMENT OF WAGES.  FN3  THE RESPONDENT'S EVIDENCE
WAS THAT THE $100 WAS PAID NOT FOR WAGES BUT TO SETTLE ALL CLAIMS
GROWING OUT OF THE PETITIONER'S INJURIES, THAT THE PETITIONER HAD NOT
APPEARED TO BE UNDER THE INFLUENCE OF DRUGS, AND THAT NO THREATS OF ANY
KIND WERE MADE. 

UPON THIS AND MUCH OTHER EVIDENCE RELATING TO THE CAUSE AND EXTENT OF
THE INJURIES, THE JURY RENDERED A VERDICT FOR THE PETITIONER FOR $3000
UNDER THE JONES ACT, AND $1000 FOR MAINTENANCE AND CURE. 

RESPONDENT MADE A MOTION FOR A NEW TRIAL AND JUDGMENT NON OBSTANTE
VEREDICTO WHICH UNDER THE PENNSYLVANIA PRACTICE WAS SUBMITTED TO THE
TRIAL COURT EN BANC.  FN4  THAT COURT GAVE JUDGMENT TO THE DEFENDANT
NON OBSTANTE VEREDICTO, NOT UPON AN APPRAISAL OF DISPUTED QUESTIONS OF
FACT CONCERNING THE ACCIDENT, BUT BECAUSE OF A CONCLUSION THAT
PETITIONER HAD FAILED TO SUSTAIN THE BURDEN OF PROOF REQUIRED UNDER
PENNSYLVANIA LAW TO INVALIDATE THE RELEASE.  IT CONCEDED THAT, "IN
ADMIRALTY CASES, THE RESPONSIBILITY IS ON THE DEFENDANT TO SUSTAIN A
RELEASE RATHER THAN ON A PLAINTIFF TO OVERCOME IT," BUT CONCLUDED THAT
SINCE PETITIONER HAD CHOSEN TO BRING HIS ACTION IN A STATE, RATHER THAN
IN AN ADMIRALTY, COURT, HIS CASE MUST BE GOVERNED BY LOCAL, RATHER THAN
ADMIRALTY PRINCIPLES.  UNDER THE PENNSYLVANIA RULE, ONE WHO ATTACKS THE
VALIDITY OF A WRITTEN RELEASE HAS THE BURDEN OF SUSTAINING HIS
ALLEGATION BY "CLEAR, PRECISE, AND INDUBITABLE" EVIDENCE, MEANING
EVIDENCE "THAT IS NOT ONLY FOUND TO BE CREDIBLE BUT OF SUCH WEIGHT AND
DIRECTNESS AS TO MAKE OUT THE FACTS ALLEGED BEYOND A REASONABLE
DOUBT."  WITNESSES WHO TESTIFY AGAINST THE RELEASE MUST NOT ONLY BE
CREDIBLE, BUT "DISTINCTLY REMEMBER THE FACTS TO WHICH THEY TESTIFY AND
NARRATE THE DETAILS EXACTLY."  THE COURT HELD THAT, SINCE THE
PETITIONER HAD NOT SUSTAINED THIS BURDEN OF PROOF, THE TRIAL JUDGE
SHOULD HAVE WITHDRAWN THE CASE FROM THE JURY. 

THE SUPREME COURT OF PENNSYLVANIA TOOK A SOMEWHAT DIFFERENT VIEW.  IT
HELD THAT IN AN ACTION OF THIS SORT THE PENNSYLVANIA COURT WAS
OBLIGATED "TO APPLY THE FEDERAL LAW CREATING THE RIGHT OF ACTION IN THE
SAME SENSE IN WHICH IT WOULD HAVE BEEN APPLIED IN THE FEDERAL COURTS." 
HOWEVER, IT AFFIRMED THE JUDGMENT IN THE BELIEF THAT THE RULE AS TO
BURDEN OF PROOF ON RELEASES DOES NOT AFFECT THE SUBSTANTIVE RIGHTS OF
THE PARTIES, BUT IS MERELY PROCEDURAL, AND IS THEREFORE CONTROLLED BY
STATE LAW. 

I. RESPONDENT'S ARGUMENT THAT THE PENNSYLVANIA COURT SHOULD HAVE
APPLIED STATE RATHER THAN ADMIRALTY LAW IN MEASURING THE RIGHTS OF THE
PARTIES CANNOT BE SUSTAINED. 

WE DO NOT HAVE IN THIS CASE AN EFFORT OF THE STATE COURT TO ENFORCE
RIGHTS CLAIMED TO BE ROOTED IN STATE LAW.  THE PETITIONER'S SUIT RESTED
ON ASSERTED RIGHTS GRANTED BY FEDERAL LAW AND THE STATE COURTS SO
TREATED IT.  JURISDICTION OF THE STATE COURT TO TRY THIS CASE RESTS
SOLELY UPON SEC. 33 OF THE JONES ACT AND UPON STATUTES TRACEABLE TO THE
JUDICIARY ACT OF 1789 WHICH "IN ALL CIVIL CAUSES OF ADMIRALTY AND
MARITIME JURISDICTION" SAVES TO SUITORS "THE RIGHT OF A COMMON-LAW
REMEDY WHERE THE COMMON LAW IS COMPETENT TO GIVE IT."  FN5  THESE
STATUTES AUTHORIZE PENNSYLVANIA COURTS TO TRY CASES COMING WITHIN THE
DEFINED CATEGORY.  FN6 WHETHER PENNSYLVANIA WAS REQUIRED BY THE ACTS TO
MAKE ITS COURTS AVAILABLE FOR THOSE FEDERAL REMEDIES, OR WHETHER IT
COULD CREATE ITS OWN REMEDY AS TO MAINTENANCE AND CURE BASED ON LOCAL
LAW, WE NEED NOT DECIDE; FN7  FOR, HAVING VOLUNTARILY OPENED ITS COURTS
TO PETITIONER, THE QUESTIONS ARE WHETHER PENNSYLVANIA WAS THEREUPON
REQUIRED TO GIVE TO PETITIONER THE FULL BENEFIT OF FEDERAL LAW AND, IF
SO, WHETHER IT FAILED TO AFFORD THAT BENEFIT. 

THERE IS NO DEARTH OF EXAMPLE OF THE OBLIGATION ON LAW COURTS WHICH
ATTEMPT TO ENFORCE SUBSTANTIVE RIGHTS ARISING FROM ADMIRALTY LAW TO DO
SO IN A MANNER CONFORMING TO ADMIRALTY PRACTICE.  CONTRIBUTORY
NEGLIGENCE IS NOT A BARRIER TO A PROCEEDING IN ADMIRALTY OR UNDER THE
JONES ACT, AND THE STATE COURTS ARE REQUIRED TO APPLY THIS RULE IN
JONES ACT ACTIONS.  BEADLE V. SPENCER, 298 U.S. 124.  SIMILARLY STATE
COURTS MAY NOT APPLY THEIR DOCTRINES OF ASSUMPTION OF RISK IN ACTIONS
ARISING UNDER THE ACT.  THE ARIZONA V. ANELICH, 298 U.S. 110; SOCONY
VACUUM CO. V. SMITH, 305 U.S. 424.  STATE COURTS, WHETHER OR NOT
APPLYING THE JONES ACT TO ACTIONS ARISING FROM MARITIME TORTS, HAVE
USUALLY ATTEMPTED, ALTHOUGH NOT ALWAYS WITH COMPLETE SUCCESS, TO APPLY
ADMIRALTY PRINCIPLES.  FN8  THE FEDERAL COURTS, WHEN TREATING MARITIME
TORTS IN ACTIONS AT LAW RATHER THAN IN SUITS IN ADMIRALTY, HAVE ALSO
SOUGHT TO PRESERVE ADMIRALTY PRINCIPLES WHENEVER CONSONANT WITH THE
NECESSITIES OF COMMON LAW PROCEDURE.  FN9 

THIS COURT HAS SPECIFICALLY HELD THAT THE JONES ACT IS TO HAVE A
UNIFORM APPLICATION THROUGHOUT THE COUNTRY, UNAFFECTED BY "LOCAL VIEWS
OF COMMON LAW RULES."  PANAMA R. CO. V. JOHNSON, 264 U.S. 375, 392. 
THE ACT IS BASED UPON, AND INCORPORATES BY REFERENCE, THE FEDERAL
EMPLOYERS' LIABILITY ACT, WHICH ALSO REQUIRES UNIFORM INTERPRETATION. 
SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 55 ET SEQ. THIS
UNIFORMITY REQUIREMENT EXTENDS TO THE TYPE OF PROOF NECESSARY FOR
JUDGMENT.  NEW ORLEANS & NORTHEASTERN R. CO. V. HARRIS, 247 U.S. 367. 

IN MANY OTHER CASES THIS COURT HAS DECLARED THE NECESSARY DOMINANCE
OF ADMIRALTY PRINCIPLES IN ACTIONS IN VINDICATION OF RIGHTS ARISING
FROM ADMIRALTY LAW.  FN10  BELDEN V. CHASE, 150 U.S. 674, AN 1893
DECISION WHICH RESPONDENT RELIES UPON AS ESTABLISHING A CONTRARY RULE,
HAS NEVER BEEN THUS CONSIDERED IN ANY OF THE LATER CASES CITED. 

IT MUST BE REMEMBERED THAT THE STATE COURTS HAVE CONCURRENT
JURISDICTION WITH THE FEDERAL COURTS TO TRY ACTIONS EITHER UNDER THE
MERCHANT MARINE ACT OR IN PERSONAM SUCH AS MAINTENANCE AND CURE.  THE
SOURCE OF THE GOVERNING LAW APPLIED IS IN THE NATIONAL, NOT THE STATE,
GOVERNMENT N11.  IF BY ITS PRACTICE THE STATE COURT WERE PERMITTED
SUBSTANTIALLY TO ALTER THE RIGHTS OF EITHER LITIGANT, AS THOSE RIGHTS
WERE ESTABLISHED IN FEDERAL LAW, THE REMEDY AFFORDED BY THE STATE WOULD
NOT ENFORCE, BUT WOULD ACTUALLY DENY, FEDERAL RIGHTS WHICH CONGRESS, BY
PROVIDING ALTERNATIVE REMEDIES, INTENDED TO MAKE NOT LESS BUT MORE
SECURE.  THE CONSTANT OBJECTIVE OF LEGISLATION AND JURISPRUDENCE IS TO
ASSURE LITIGANTS FULL PROTECTION FOR ALL SUBSTANTIVE RIGHTS INTENDED TO
BE AFFORDED THEM BY THE JURISDICTION IN WHICH THE RIGHT ITSELF
ORIGINATES.  NOT SO LONG AGO WE SOUGHT TO ACHIEVE THIS RESULT WITH
RESPECT TO ENFORCEMENT IN THE FEDERAL COURTS OF RIGHTS CREATED OR
GOVERNED BY STATE LAW.  FN12  AND ADMIRALTY COURTS, WHEN INVOKED TO
PROTECT RIGHTS ROOTED IN STATE LAW, ENDEAVOR TO DETERMINE THE ISSUES IN
ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE STATE.  FN13 SO HERE, IN
TRYING THIS CASE THE STATE COURT WAS BOUND TO PROCEED IN SUCH MANNER
THAT ALL THE SUBSTANTIAL RIGHTS OF THE PARTIES UNDER CONTROLLING
FEDERAL LAW WOULD BE PROTECTED.  WHETHER IT DID SO RAISES A FEDERAL
QUESTION REVIEWABLE HERE UNDER SEC. 237(B) OF THE JUDICIAL CODE, 28
U.S.C. SEC. 344(B).  FN14 

II.  A SEAMAN IN ADMIRALTY WHO ATTACKS A RELEASE HAS NO SUCH BURDEN
IMPOSED UPON HIM AS THAT TO WHICH THE PENNSYLVANIA RULE SUBJECTS HIM. 
OUR HISTORIC NATIONAL POLICY, BOTH LEGISLATIVE AND JUDICIAL, POINTS THE
OTHER WAY.  CONGRESS HAS GENERALLY SOUGHT TO SAFEGUARD SEAMEN'S
RIGHTS.  THE FIRST CONGRESS, ON JULY 20, 1790, PASSED A PROTECTIVE ACT
FOR SEAMEN IN THE MERCHANT MARINE SERVICE, SAFEGUARDING WAGE CONTRACTS,
PROVIDING SUMMARY REMEDIES FOR THEIR BREACH, AND REQUIRING SHIPOWNERS
TO KEEP ON BOARD FRESH MEDICINES IN CONDITION FOR USE.  1 STAT. 131. 
THE FIFTH CONGRESS, JULY 16, 1798, 1 STAT. 605, ORIGINATED OUR PRESENT
SYSTEM OF MARINE HOSPITALS FOR DISABLED SEAMEN.  THE LANGUAGE OF
JUSTICE STORY, SITTING ON CIRCUIT IN 1823, DESCRIBED THE SOLICITUDE
WITH WHICH ADMIRALTY HAS TRADITIONALLY VIEWED SEAMEN'S CONTRACTS: 

"THEY ARE EMPHATICALLY THE WARDS OF THE ADMIRALTY; AND THOUGH NOT
TECHNICALLY INCAPABLE OF ENTERING INTO A VALID CONTRACT, THEY ARE
TREATED IN THE SAME MANNER AS COURTS OF EQUITY ARE ACCUSTOMED TO TREAT
YOUNG HEIRS, DEALING WITH THEIR EXPECTANCIES, WARDS WITH THEIR
GUARDIANS, AND CESTUIS QUE TRUSTENT WITH THEIR TRUSTEES.  ...  IF THERE
IS ANY UNDUE INEQUALITY IN THE TERMS, ANY DISPROPORTION IN THE BARGAIN,
ANY SACRIFICE OF RIGHTS ON ONE SIDE, WHICH ARE NOT COMPENSATED BY
EXTRAORDINARY BENEFITS ON THE OTHER, THE JUDICIAL INTERPRETATION OF THE
TRANSACTION IS THAT THE BARGAIN IS UNJUST AND UNREASONABLE, THAT
ADVANTAGE HAS BEEN TAKEN OF THE SITUATION OF THE WEAKER PARTY, AND THAT
PRO TANTO THE BARGAIN OUGHT TO BE SET ASIDE AS INEQUITABLE.  ...  AND
ON EVERY OCCASION THE COURT EXPECTS TO BE SATISFIED, THAT THE
COMPENSATION FOR EVERY MATERIAL ALTERATION IS ENTIRELY ADEQUATE TO THE
DIMINUTION OF RIGHT OR PRIVILEGE ON THE PART OF THE SEAMEN."  HARDEN V.
GORDON, FED. CAS. NO. 6047, AT PP. 480, 485. 

IN KEEPING WITH THIS POLICY, CONGRESS HAS ITSELF ACTED CONCERNING
SEAMEN'S RELEASES IN RESPECT TO WAGES BY PROVIDING THAT A RELEASE FOR
WAGES MUST BE SIGNED BY A SEAMAN IN THE PRESENCE OF A SHIPPING
COMMISSIONER, AND THAT, EVEN THEN, "ANY COURT HAVING JURISDICTION MAY
ON GOOD CAUSE SHOWN SET ASIDE SUCH RELEASE AND TAKE SUCH ACTION AS
JUSTICE SHALL REQUIRE."  FN15  GENERAL CONGRESSIONAL POLICY IS FURTHER
SHOWN IN THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 33
U.S.C. SECS. 915, 916, IN WHICH ALL RELEASES NOT MADE UNDER THE EXPRESS
TERMS OF THE ACT ARE DECLARED INVALID. 

THE ANALOGY SUGGESTED BY JUSTICE STORY, IN THE PARAGRAPH QUOTED ABOVE,
BETWEEN SEAMEN'S CONTRACTS AND THOSE OF FIDUCIARIES AND BENEFICIARIES
REMAINS, UNDER THE PREVAILING RULE TREATING SEAMEN AS WARDS OF
ADMIRALTY, A CLOSE ONE.  WHETHER THE TRANSACTION UNDER CONSIDERATION IS
A CONTRACT, SALE, OR GIFT BETWEEN GUARDIAN AND WARD OR BETWEEN TRUSTEE
AND CESTUI, THE BURDEN OF PROVING ITS VALIDITY IS ON THE FIDUCIARY.  HE
MUST AFFIRMATIVELY SHOW THAT NO ADVANTAGE HAS BEEN TAKEN; AND HIS
BURDEN IS PARTICULARLY HEAVY WHERE THERE HAS BEEN INADEQUACY OF
CONSIDERATION.  FN16 

THE WARDSHIP THEORY HAS, AS WAS RECOGNIZED BY THE COURTS BELOW,
MARKED CONSEQUENCE ON THE TREATMENT GIVEN SEAMEN'S RELEASES.  SUCH
RELEASES ARE SUBJECT TO CAREFUL SCRUTINY.  "ONE WHO CLAIMS THAT A
SEAMAN HAS SIGNED AWAY HIS RIGHTS TO WHAT IN LAW IS DUE HIM MUST BE
PREPARED TO TAKE THE BURDEN OF SUSTAINING THE RELEASE AS FAIRLY MADE
WITH AND FULLY COMPREHENDED BY THE SEAMAN."  HARMON V. UNITED STATES,
59 F.2D 372, 373.  WE HOLD, THEREFORE, THAT THE BURDEN IS UPON ONE WHO
SETS UP A SEAMAN'S RELEASE TO SHOW THAT IT WAS EXECUTED FREELY, WITHOUT
DECEPTION OR COERCION, AND THAT IT WAS MADE BY THE SEAMAN WITH FULL
UNDERSTANDING OF HIS RIGHTS.  THE ADEQUACY OF THE CONSIDERATION AND THE
NATURE OF THE MEDICAL AND LEGAL ADVICE AVAILABLE TO THE SEAMAN AT THE
TIME OF SIGNING THE RELEASE ARE RELEVANT TO AN APPRAISAL OF THIS
UNDERSTANDING N17. 

THIS GENERAL ADMIRALTY RULE APPLIES NOT ONLY TO ACTIONS FOR
MAINTENANCE AND CURE BUT ALSO TO ACTIONS UNDER SEC. 33 OF THE MERCHANT
MARINE ACT.  THAT LAW IS TO BE LIBERALLY CONSTRUED TO CARRY OUT ITS
FULL PURPOSE, WHICH WAS TO ENLARGE ADMIRALTY'S PROTECTION TO ITS
WARDS.  WARNER V. GOLTRA, 293 U.S. 155, 156, 162; THE ARIZONA V.
ANELICH, 298 U.S. 110, 123.  BEING AN INTEGRAL PART OF THE MARITIME
LAW, RIGHTS FASHIONED BY IT ARE TO BE IMPLEMENTED BY ADMIRALTY RULES
NOT INCONSISTENT WITH THE ACT.  SOCONY-VACUUM CO. V. SMITH, 305 U.S.
424, 430.    III.  THE PENNSYLVANIA SUPREME COURT HAS CONCLUDED THAT IN
SOLVING PROBLEMS OF PROCEDURAL, AS DISTINGUISHED FROM SUBSTANTIVE, LAW,
THE LAW COURT MAY APPLY ITS OWN DOCTRINE; AND THAT THE LOCUS OF BURDEN
OF PROOF PRESENTS A PROCEDURAL RATHER THAN A SUBSTANTIVE QUESTION. 

MUCH OF WHAT WE HAVE SAID ABOVE CONCERNING THE NECESSITY OF
PRESERVING ALL OF THE SUBSTANTIAL ADMIRALTY RIGHTS IN AN ACTION AT LAW
IS INCOMPATIBLE WITH THE CONCLUSION OF THE COURT BELOW.  THE RIGHT OF
THE PETITIONER TO BE FREE FROM THE BURDEN OF PROOF IMPOSED BY THE
PENNSYLVANIA LOCAL RULE INHERED IN HIS CAUSE OF ACTION.  DEEPLY ROOTED
IN ADMIRALTY AS THAT RIGHT IS, IT WAS A PART OF THE VERY SUBSTANCE OF
HIS CLAIM AND CANNOT BE CONSIDERED A MERE INCIDENT OF A FORM OF
PROCEDURE.  CENTRAL VERMONT RY. CO. V. WHITE, 238 U.S. 507, 511, 512;
CITIES SERVICE CO. V. DUNLAP, 308 U.S. 208, 212; AND CF. THE IRA M.
HEDGES, 218 U.S. 264, 270.  PENNSYLVANIA HAVING OPENED ITS COURTS TO
PETITIONER TO ENFORCE FEDERALLY CREATED RIGHTS, THE PETITIONER WAS
ENTITLED TO THE BENEFIT OF THE FULL SCOPE OF THESE RIGHTS.  THE CAUSE
IS REVERSED FOR ACTION NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  46 U.S.C. 688. 

FN2  THE RIGHT OF A SEAMAN TO RECOVER DAMAGES FOR NEGLIGENT INJURY
ARISES UNDER THE JONES ACT, AND THE RIGHT TO MAINTENANCE AND CURE,
IRRESPECTIVE OF NEGLIGENCE, ARISES UNDER THE LAW OF ADMIRALTY.  THESE
RIGHTS ARE INDEPENDENT AND CUMULATIVE.  PACIFIC S.S. CO. V. PETERSON,
278 U.S. 130, 138.  FOR A GENERAL DISCUSSION OF MAINTENANCE AND CURE,
SEE THE OSCEOLA, 189 U.S. 158; CORTES V. BALTIMORE INSULAR LINE, 287
U.S. 367, 371; CALMAR S.S. CORP. V. TAYLOR, 303 U.S. 525, 527. 

FN3  THERE WERE TWO ELEMENTS OF THE WAGE DISPUTE:  (A) WHETHER WAGES
SHOULD BE COMPUTED AT $50.00 OR $72.50 A MONTH; (B) WHETHER, SINCE
PETITIONER WAS LEFT IN A HOSPITAL IN POLAND AND COULD NOT RETURN WITH
HIS SHIP, HE SHOULD HAVE BEEN PAID WAGES UNTIL HE ACTUALLY ARRIVED IN
HIS HOME PORT.  HE WAS PAID ONLY UP TO THE TIME HE LEFT THE VESSEL. 
THERE IS CLEAR AUTHORITY TO SUPPORT A CLAIM FOR WAGES TO THE END OF THE
VOYAGE FOR WHICH PETITIONER HAD BEEN SIGNED.  THE OSCEOLA, SUPRA, 175. 

FN4  IN PENNSYLVANIA THE TRIAL JUDGE DOES NOT PASS UPON SUCH MOTIONS
ALONE; INSTEAD, THEY ARE HEARD AND DECIDED BY THREE JUDGES OF THE COURT
SITTING EN BANC.  PURDON, PENN.  STAT.  ANN., VOL. 12, PAR. 680. 

FN5  28 U.S.C. SEC. 371. 

FN6  ENGEL V. DAVENPORT, 271 U.S. 33, 37, 38(JONES ACT); THE BELFAST,
7 WALL.  624, 644; LEON V. GALCERAN, 11 WALL.  185, 187-188; PANAMA R.
CO. V. VASQUEZ, 271 U.S. 557, 560-561.  THE LAST THREE CASES INVOLVE
NON-STATUTORY ACTIONS. 

FN7  THE HAMILTON, 207 U.S. 398, 404; JUST V. CHAMBERS, 312 U.S. 383,
391. 

FN8  COLONNA SHIPYARD V. BLAND, 150 VA. 349, 358, 143 S.E.
729(CONTRIBUTORY NEGLIGENCE); PAULSEN V. MCDUFFIE, 4 CAL.2D 111, 47
P.2D 709(ASSUMPTION OF RISK); LIEFLANDER V. STATES S.S. CO., 149 ORE. 
605, 42 P.2D 156(BURDEN OF PROOF). 

FN9  BERWIND-WHITE COAL MINING CO. V. EASTERN STEAMSHIP CORP., 228 F.
726; PORT OF NEW YORK STEVEDORING CORP. V. CASTAGNA, 280 F. 618. 

FN10  SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205; CHELENTIS V.
LUCKENBACH S.S. CO., 247 U.S. 372; KNICKERBOCKER ICE CO. V. STEWART,
253 U.S. 149, 159; CARLISLE PACKING CO. V. SANDANGER, 259 U.S. 255,
259; MESSEL V. FOUNDATION CO., 274 U.S. 427, 434; AND SEE SCHUEDE V.
ZENITH S.S. CO., 216 F. 566.  DISAGREEMENT OVER THE CONSTITUTIONAL
ISSUES OF THE CASES IN THE JENSEN LINE HAS NOT EXTENDED TO THIS
PRINCIPLE.  CF. THE LOTTAWANNA, 21 WALL.  558, 575; DETROIT TRUST CO.
V. THE THOMAS BARLUM, 293 U.S. 21, 43. 

FN11  THE STEAMER ST. LAWRENCE, 1 BLACK 522, 526-527. 

FN12  ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 

FN13  WESTERN FUEL CO. V. GARCIA, 257 U.S. 233, 242.  CF. THE
HAMILTON, SUPRA. 

FN14  SEE CLAFLIN V. HOUSEMAN, 93 U.S. 130, 136-42; CF. STANDARD OIL
CO. V. JOHNSON, 316 U.S. 481, 483. 

FN15  46 U.S.C. SEC. 597.  SEE PACIFIC MAIL S.S. CO. V. LUCAS, 258
U.S. 266; IBID., 264 F. 938. 

FN16  MICHOUD V. GIROD, 4 HOW.  503, 556; CF. MAGRUDER V. DRURY, 235
U.S. 106, 120; THORN WIRE CO. V. WASHBURN & MOEN CO., 159 U.S. 423,
443; KLAMATH INDIANS V. UNITED STATES, 296 U.S. 244, 254; AND UNITED
STATES V. DUNN, 268 U.S. 121, 131.  THE ADMIRALTY RULE IS WELL WITHIN
THE BOUNDS PUT ON THESE OTHER RELATIONSHIPS, SINCE MANY TRUSTEECESTUI
OR GUARDIAN AND WARD CONTRACTS ARE VOIDABLE ON THE ELECTION OF THE
BENEFICIARY.  SEE WADE V. PULSIFER, 54 VT. 45, 62; HATCH V. HATCH, 9
VES.  291(1804); AND CF. MADDEN, DOMESTIC RELATIONS, CH. 12, AND 3
BOGERT, TRUSTS, SEC. 493. 

FN17  SEE THE HARMON CASE, SUPRA, AND THE STANDARD, 103 F.2D 437;
SITCHON V. AMERICAN EXPORT LINES, 113 F.2D 830; HUME V. MOORE-MCCORMACK
LINES, 121 F.2D 336.  FOR SOMEWHAT COMPARABLE CASES INVOLVING RELEASES
FOR PERSONAL INJURIES ARISING FROM NONMARITIME TORTS, SEE UNION PACIFIC
RY. CO. V. HARRIS, 158 U.S. 326; CHESAPEAKE & OHIO RY. CO. V. HOWARD,
17, U.S. 153, 167; TEXAS & PACIFIC RY. CO. V. DASHIELL, 198 U.S. 521. 
CF. DUNCAN V. THOMPSON, 315 U.S. 1. 
..END :





















DAVIS V. DEPARTMENT OF LABOR, 317 U.S. 249 


NO. 86.  ARGUED NOVEMBER 18, 1942.  - DECIDED DECEMBER 14, 1942.  - 12
WASH.2D 349, 121 P.2D 365, REVERSED. 


AN EMPLOYEE OF A CONSTRUCTION COMPANY, WHICH WAS A CONTRIBUTOR TO THE
WORKMEN'S COMPENSATION FUND OF THE STATE, WAS EMPLOYED IN OR ABOUT THE
DISMANTLING OF AN ABANDONED BRIDGE OVER A NAVIGABLE STREAM, WHICH
INVOLVED CUTTING STEEL FROM THE BRIDGE, LOWERING IT TO A BARGE AND
TOWING OR HAULING THE BARGE, WHEN LOADED, TO A STORAGE PLACE.  HE HAD
HELPED TO CUT SOME STEEL FROM THE BRIDGE AND, AT THE TIME OF THE
ACCIDENT, WAS WORKING ON THE BARGE, EXAMINING STEEL AFTER IT HAD BEEN
LOWERED AND CUTTING THE PIECES TO PROPER LENGTHS, AS NECESSARY.  WHILE
SO EMPLOYED HE FELL, OR WAS KNOCKED, INTO THE STREAM, IN WHICH HIS BODY
WAS FOUND.  HELD: 

1.  THAT THERE IS NO CONSTITUTIONAL OBJECTION TO AN AWARD TO THE
DECEDENT'S WIDOW UNDER THE WASHINGTON ACT, WHICH PROVIDES COMPENSATION
FOR EMPLOYEES, OR DEPENDENTS OF EMPLOYEES, SUCH AS DECEDENT, IF
APPLICATION OF THE ACT CAN BE MADE "WITHIN THE LEGISLATIVE JURISDICTION
OF THE STATE," AND WHICH EXPRESSLY COVERS "ALL EMPLOYERS OR WORKMEN
...  ENGAGED IN MARITIME OCCUPATIONS FOR WHOM NO RIGHT OR OBLIGATION
EXISTS UNDER THE MARITIME LAWS"; AND THAT THE FEDERAL LONGSHOREMEN'S
AND HARBOR WORKERS' ACT, UNDER WHICH NO ADMINISTRATIVE ACTION HAD BEEN
TAKEN, DID NOT EXCLUDE SUCH APPLICATION OF THE STATE LAW.  P. 255. 

2.  CERTAIN EMPLOYEES SUCH AS DECEDENT ARE IN A TWILIGHT ZONE OF
JURISDICTION; AND THE DETERMINATION AS TO WHETHER THEY ARE SUBJECT TO A
STATE ACT OR TO THE FEDERAL LONGSHOREMEN'S AND HARBOR WORKERS' ACT IS
LARGELY A QUESTION OF FACT.  P. 256. 

3.  FACED WITH THIS FACTUAL PROBLEM, COURTS WILL GIVE PRESUMPTIVE
WEIGHT TO THE CONCLUSIONS OF THE APPROPRIATE FEDERAL AUTHORITIES AND TO
STATE STATUTES.  P. 256. 

4.  NOT ONLY DOES THE STATE ACT IN THIS CASE APPEAR TO COVER THE
EMPLOYEE, ASIDE FROM THE CONSTITUTIONAL CONSIDERATION, BUT NO
CONFLICTING PROCESS OF FEDERAL ADMINISTRATION IS APPARENT.  UNDER ALL
THE CIRCUMSTANCES OF THE CASE, THE COURT RELIES ON THE PRESUMPTION OF
CONSTITUTIONALITY IN FAVOR OF THE STATE ENACTMENT.  GIVING FULL WEIGHT
TO THE PRESUMPTION, AND RESOLVING ALL DOUBTS IN FAVOR OF THE ACT, THE
COURT HOLDS THAT THE CONSTITUTION IS NO OBSTACLE TO THE PETITIONER'S
RECOVERY.  P. 258. 

DAVIS V. DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF
WASHINGTON. 

CERTIORARI TO THE SUPREME COURT OF THE STATE OF WASHINGTON. 

CERTIORARI, 316 U.S. 657, TO REVIEW A JUDGMENT REJECTING A CLAIM MADE
UNDER THE STATE WORKMEN'S COMPENSATION LAW. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE WASHINGTON SUPREME COURT HELD THAT THE STATE COULD
NOT, CONSISTENTLY WITH THE FEDERAL CONSTITUTION, MAKE AN AWARD UNDER
ITS STATE COMPENSATION LAW TO THE WIDOW OF A WORKMAN DROWNED IN A
NAVIGABLE RIVER.  THE CIRCUMSTANCES WHICH CAUSED THE COURT TO REACH
THIS CONCLUSION WERE THESE: 

THE PETITIONER'S HUSBAND, A STRUCTURAL STEELWORKER, WAS DROWNED IN
THE SNOHOMISH RIVER WHILE WORKING AS AN EMPLOYEE OF THE MANSON
CONSTRUCTION AND ENGINEERING COMPANY, A CONTRIBUTOR TO THE WORKMEN'S
COMPENSATION FUND OF THE STATE OF WASHINGTON.  CONTRIBUTIONS OF
WASHINGTON EMPLOYERS TO THIS FUND ARE COMPULSORY IN CERTAIN TYPES OF
OCCUPATIONS, INCLUDING THE JOB FOR WHICH THE DECEASED HAD BEEN
EMPLOYED.  REM.  REV. STAT. (1932) SEC. 7674.  THAT JOB WAS TO
DISMANTLE AN ABANDONED DRAWBRIDGE WHICH SPANNED THE RIVER.  A PART OF
THE TASK WAS TO CUT STEEL FROM THE BRIDGE WITH OXYACETYLENE TORCHES AND
MOVE IT ABOUT 250 FEET AWAY FOR STORAGE THERE TO AWAIT DELIVERY TO A
LOCAL PURCHASER.  THE STEEL WHEN CUT FROM THE BRIDGE WAS LOWERED TO A
BARGE BY A DERRICK; AND WHEN LOADED, THE BARGE WAS TO BE TOWED BY A
TUG, HAULED BY CABLE, OR, IF THE THE CURRENT MADE IT NECESSARY, BOTH
TOWED AND HAULED TO THE STORAGE POINT.  THREE VESSELS WHICH HAD BEEN
BROUGHT THERE ALONG THE STREAM, FOR USE BY THE EMPLOYER IN THE WORK - A
TUG, DERRICK BARGE, AND A BARGE,  - WERE ALL LICENSED BY THE U.S.
BUREAU OF NAVIGATION.  THE DERRICK BARGE WAS FASTENED TO THE BRIDGE;
THE BARGE WAS TIED TO THE DERRICK BARGE.  DECEASED HAD HELPED TO CUT
SOME STEEL FROM THE BRIDGE AND, AT THE TIME OF THE ACCIDENT, WAS
WORKING ON THE BARGE, WHICH HAD NOT YET BEEN COMPLETELY LOADED FOR ITS
FIRST CARRIAGE OF STEEL TO THE PLACE OF STORAGE.  HIS DUTY APPEARS TO
HAVE BEEN TO EXAMINE THE STEEL AFTER IT WAS LOWERED TO THE BARGE AND,
WHEN NECESSARY, TO CUT THE PIECES TO PROPER LENGTHS.  FROM THIS BARGE
HE FELL OR WAS KNOCKED INTO THE STREAM IN WHICH HIS BODY WAS FOUND. 

THE WASHINGTON STATUTE PROVIDES COMPENSATION FOR EMPLOYEES AND
DEPENDENTS OF EMPLOYEES, SUCH AS DECEDENT, IF ITS APPLICATION CAN BE
MADE "WITHIN THE LEGISLATIVE JURISDICTION OF THE STATE."  A FURTHER
STATEMENT OF COVERAGE APPLIES THE ACT TO "ALL EMPLOYERS OR WORKMEN  ...
ENGAGED IN MARITIME OCCUPATIONS FOR WHOM NO RIGHT OR OBLIGATION EXISTS
UNDER THE MARITIME LAWS."  REM.  REV. STAT., SECS. 7674, 7693A.  A LINE
OF OPINIONS OF THIS COURT, BEGINNING WITH SOUTHERN PACIFIC CO. V.
JENSEN, 244 U.S. 205, 216, HELD THAT UNDER SOME CIRCUMSTANCES STATES
COULD, BUT UNDER OTHERS COULD NOT, CONSISTENTLY WITH ARTICLE III, PAR.
2 OF THE FEDERAL CONSTITUTION,  FN1 APPLY THEIR COMPENSATION LAWS TO
MARITIME EMPLOYEES.  STATE LEGISLATION WAS DECLARED TO BE INVALID ONLY
WHEN IT "WORKS MATERIAL PREJUDICE TO THE CHARACTERISTIC FEATURES OF THE
GENERAL MARITIME LAW OR INTERFERES WITH THE PROPER HARMONY AND
UNIFORMITY OF THAT LAW IN ITS INTERNATIONAL AND INTERSTATE RELATIONS." 
WHEN A STATE COULD, AND WHEN IT COULD NOT, GRANT PROTECTION UNDER A
COMPENSATION ACT WAS LEFT AS A PERPLEXING PROBLEM, FOR IT WAS HELD
"DIFFICULT, IF NOT IMPOSSIBLE," TO DEFINE THIS BOUNDARY WITH
EXACTNESS. 

WITH THE MANIFEST DESIRE OF REMOVING THIS UNCERTAINTY SO THAT WORKERS
WHOSE DUTIES WERE PARTLY ON LAND AND PARTLY ON NAVIGABLE WATERS MIGHT
BE COMPENSATED FOR INJURIES, CONGRESS ON OCTOBER 6, 1917, FIVE MONTHS
AFTER THE JENSEN DECISION, PASSED AN ACT ATTEMPTING TO GIVE SUCH
INJURED PERSONS "THE RIGHTS AND REMEDIES UNDER THE WORKMEN'S
COMPENSATION LAW OF ANY STATE."  40 STAT. 395.  MAY 17, 1920, THIS
COURT DECLARED THE ACT UNCONSTITUTIONAL.  KNICKERBOCKER ICE CO. V.
STEWART, 253 U.S. 149.  JUNE 10, 1922, 42 STAT. 634, CONGRESS MADE
ANOTHER EFFORT TO PERMIT STATE COMPENSATION LAWS TO PROTECT THESE
WATERFRONT EMPLOYEES, BUT THIS SECOND EFFORT WAS ALSO HELD INVALID. 
STATE OF WASHINGTON V. W.C. DAWSON & CO., 264 U.S. 219.  MARCH 4, 1927,
CAME THE FEDERAL LONGSHOREMEN'S AND HARBOR WORKERS' ACT, 33 U.S.C. SEC.
901 ET SEQ. HERE AGAIN, HOWEVER, CONGRESS MADE CLEAR ITS PURPOSE TO
PERMIT STATE COMPENSATION PROTECTION WHENEVER POSSIBLE, BY MAKING THE
FEDERAL LAW APPLICABLE ONLY "IF RECOVERY FOR THE DISABILITY OR DEATH
THROUGH WORKMEN'S COMPENSATION PROCEEDINGS MAY NOT VALIDLY BE PROVIDED
BY STATE LAW." 

HARBOR WORKERS AND LONGSHOREMEN EMPLOYED "IN WHOLE OR IN PART UPON
THE NAVIGABLE WATERS" ARE CLEARLY PROTECTED BY THIS FEDERAL ACT; BUT
EMPLOYEES SUCH AS DECEDENT HERE, OCCUPY THAT SHADOWY AREA WITHIN WHICH,
AT SOME UNDEFINED AND UNDEFINABLE POINT, STATE LAWS CAN VALIDLY PROVIDE
COMPENSATION.  THIS COURT HAS BEEN UNABLE TO GIVE ANY GUIDING, DEFINITE
RULE TO DETERMINE THE EXTENT OF STATE POWER IN ADVANCE OF LITIGATION,
AND HAS HELD THAT THE MARGINS OF STATE AUTHORITY MUST "BE DETERMINED IN
VIEW OF SURROUNDING CIRCUMSTANCES AS CASES ARISE."  BAIZLEY IRON WORKS
V. SPAN, 281 U.S. 222, 230.  THE DETERMINATION OF PARTICULAR CASES, OF
WHICH THERE HAVE BEEN A GREAT MANY, HAS BECOME EXTREMELY DIFFICULT.  IT
IS FAIR TO SAY THAT A NUMBER OF CASES CAN BE CITED BOTH IN BEHALF OF
AND IN OPPOSITION TO RECOVERY HERE.  FN2 

THE VERY CLOSENESS OF THE CASES CITED ABOVE, AND OTHERS RAISING
RELATED POINTS OF INTERPRETATION, HAS CAUSED MUCH SERIOUS CONFUSION. 
FN3  IT MUST BE REMEMBERED THAT UNDER THE JENSEN HYPOTHESIS, BASIC
CONDITIONS ARE FACTUAL:  DOES THE STATE LAW "INTERFERE WITH THE PROPER
HARMONY AND UNIFORMITY OF" MARITIME LAW?  YET, EMPLOYEES ARE ASKED TO
DETERMINE WITH CERTAINTY BEFORE BRINGING THEIR ACTIONS THAT FACTUAL
QUESTION OVER WHICH COURTS REGULARLY DIVIDE AMONG THEMSELVES AND WITHIN
THEIR OWN MEMBERSHIP.  AS PENALTY FOR ERROR, THE INJURED INDIVIDUAL MAY
NOT ONLY SUFFER SERIOUS FINANCIAL LOSS THROUGH THE DELAY AND EXPENSE OF
LITIGATION, BUT DISCOVER THAT HIS CLAIM HAS BEEN BARRED BY THE STATUTE
OF LIMITATIONS IN THE PROPER FORUM WHILE HE WAS ERRONEOUSLY PURSUING IT
ELSEWHERE.  SEE E.G., AYRES V. PARKER, 15 F.SUPP.  447.  SUCH A RESULT
DEFEATS THE PURPOSE OF THE FEDERAL ACT, WHICH SEEKS TO GIVE "TO THESE
HARDWORKING MEN, ENGAGED IN A SOMEWHAT HAZARDOUS EMPLOYMENT, THE
JUSTICE INVOLVED IN THE MODERN PRINCIPLE OF COMPENSATION," AND THE
STATE ACTS SUCH AS THE ONE BEFORE US, WHICH AIMS AT "SURE AND CERTAIN
RELIEF FOR WORKMEN."  FN4 

THE HORNS OF THE JURISDICTIONAL DILEMMA PRESS AS SHARPLY ON EMPLOYERS
AS ON EMPLOYEES.  IN THE FACE OF THE CASES REFERRED TO ABOVE, THE MOST
COMPETENT COUNSEL MAY BE UNABLE TO PREDICT ON WHICH SIDE OF THE LINE
PARTICULAR EMPLOYMENT WILL FALL.  THE EMPLOYER'S CONTRIBUTION TO A
STATE INSURANCE FUND MAY THEREFORE WHOLLY FAIL TO PROTECT HIM AGAINST
THE LIABILITIES FOR WHICH IT WAS SPECIFICALLY PLANNED.  IF THIS VERY
CASE IS AFFIRMED, FOR EXAMPLE, THE EMPLOYER WILL NOT ONLY LOSE THE
BENEFIT OF THE STATE INSURANCE TO WHICH HE HAS BEEN COMPELLED TO
CONTRIBUTE AND BY WHICH HE HAS THOUGHT HIMSELF SECURED AGAINST LOSS FOR
ACCIDENTS TO HIS EMPLOYEES; HE MUST ALSO, BY VIRTUE OF THE CONCLUSION
THAT THE EMPLOYEE WAS SUBJECT TO THE FEDERAL ACT AT THE TIME OF THE
ACCIDENT, BECOME LIABLE FOR SUBSTANTIAL ADDITIONAL PAYMENTS.  HE WILL
ALSO BE SUBJECT TO FINE AND IMPRISONMENT FOR THE MISDEMEANOR OF HAVING
FAILED, AS IS APPARENTLY THE CASE, TO SECURE PAYMENT FOR THE EMPLOYEE
UNDER THE FEDERAL ACT.  33 U.S.C. SECS. 938, 932. 

WE ARE NOT ASKED HERE TO REVIEW AND RECONSIDER THE CONSTITUTIONAL
IMPLICATIONS OF THE JENSEN LINE OF DECISIONS.  ON THE CONTRARY, EVEN
THE PETITIONER ARGUES THAT SUCH ACTION MIGHT BRING ABOUT STILL WORSE
CONFUSION IN AN ALREADY UNCERTAIN FIELD, AND POINTS OUT THAT STATE AND
FEDERAL AGENCIES HAVE MADE REAL PROGRESS TOWARD CLOSING THE GAP.  THERE
IS MUCH FORCE IN THIS ARGUMENT.  SINCE 1917, CONGRESS AND THE STATES
HAVE SOUGHT TO RESTORE ORDER OUT OF THE CONFUSION WHICH RESULTED FROM
THE JENSEN DECISION.  THAT SUCCESS HAS NOT FINALLY BEEN ACHIEVED IS
ILLUSTRATED BY THE PRESENT CASE.  THE LONGSHOREMEN'S ACT, PASSED WITH
SPECIFIC REFERENCE TO THE JENSEN RULE, PROVIDED A PARTIAL SOLUTION. 
THE WASHINGTON STATUTE REPRESENTS A STATE EFFORT TO CLARIFY THE
SITUATION.  BOTH OF THESE LAWS SHOW CLEARLY THAT NEITHER WAS INTENDED
TO ENCROACH ON THE FIELD OCCUPIED BY THE OTHER.  BUT THE LINE
SEPARATING THE SCOPE OF THE TWO BEING UNDEFINED AND UNDEFINABLE WITH
EXACT PRECISION, MARGINAL EMPLOYMENT MAY, BY REASON OF PARTICULAR
FACTS, FALL ON EITHER SIDE.  OVERRULING THE JENSEN CASE WOULD NOT SOLVE
THIS PROBLEM.  IN OUR DECISION IN PARKER V. MOTOR BOAT SALES, 314 U.S.
244, WE HELD THAT CONGRESS HAS BY THE LONGSHOREMEN'S ACT ACCEPTED THE
JENSEN LINE OF DEMARCATION BETWEEN STATE AND FEDERAL JURISDICTION. 
OBVIOUSLY, THE DETERMINATION OF THE MARGIN BECOMES NO SIMPLER BECAUSE
THE STANDARD APPLIED IS CONSIDERED TO BE EMBEDDED IN A STATUTE RATHER
THAN IN THE CONSTITUTION.  NOR CAN WE GAIN ASSISTANCE IN THIS
CIRCUMSTANCE FROM THE CLAUSE IN THE FEDERAL ACT WHICH MAKES THAT ACT
EXCLUSIVE.  33 U.S.C. SEC. 905.  THAT SECTION GAINS MEANING ONLY AFTER
A LITIGANT HAS BEEN FOUND TO OCCUPY ONE SIDE OR THE OTHER OF THE
DOUBTFUL JURISDICTIONAL LINE, AND IS NO ASSISTANCE IN DISCOVERING ON
WHICH SIDE HE CAN PROPERLY BE PLACED. 

THERE IS, IN THE LIGHT OF THE CASES REFERRED TO, CLEARLY A TWILIGHT
ZONE IN WHICH THE EMPLOYEES MUST HAVE THEIR RIGHTS DETERMINED CASE BY
CASE, AND IN WHICH PARTICULAR FACTS AND CIRCUMSTANCES ARE VITAL
ELEMENTS.  THAT ZONE INCLUDES PERSONS SUCH AS THE DECEDENT WHO ARE, AS
A MATTER OF ACTUAL ADMINISTRATION, IN FACT PROTECTED UNDER THE STATE
COMPENSATION ACT. 

FACED WITH THIS FACTUAL PROBLEM WE MUST GIVE GREAT - INDEED,
PRESUMPTIVE - WEIGHT TO THE CONCLUSIONS OF THE APPROPRIATE FEDERAL
AUTHORITIES AND TO THE STATE STATUTES THEMSELVES.  WHERE THERE HAS BEEN
A HEARING BY THE FEDERAL ADMINISTRATIVE AGENCY ENTRUSTED WITH BROAD
POWERS OF INVESTIGATION, FACT FINDING, DETERMINATION, AND AWARD, OUR
TASK PROVES EASY.  THERE, WE ARE AIDED BY THE PROVISION OF THE FEDERAL
ACT, 33 U.S.C. SEC. 920, WHICH PROVIDES THAT, IN PROCEEDINGS UNDER THAT
ACT, JURISDICTION IS TO BE "PRESUMED, IN THE ABSENCE OF SUBSTANTIAL
EVIDENCE TO THE CONTRARY."  FACT FINDINGS OF THE AGENCY, WHERE
SUPPORTED BY THE EVIDENCE, ARE MADE FINAL.  THEIR CONCLUSION THAT A
CASE FALLS WITHIN THE FEDERAL JURISDICTION IS THEREFORE ENTITLED TO
GREAT WEIGHT AND WILL BE REJECTED ONLY IN CASES OF APPARENT ERROR.  IT
WAS UNDER THESE CIRCUMSTANCES THAT WE SUSTAINED THE COMMISSIONER'S
FINDINGS IN PARKER V. MOTOR BOAT SALES, SUPRA. 

IN THE INSTANT CASE, WE DO NOT ENJOY THE BENEFIT OF FEDERAL
ADMINISTRATIVE FINDINGS AND MUST THEREFORE LOOK SOLELY TO STATE SOURCES
FOR GUIDANCE.  WE FIND HERE A STATE STATUTE WHICH PURPORTS TO COVER
THESE PERSONS, AND WHICH INDEED DOES COVER THEM IF THE DOUBTFUL AND
DIFFICULT FACTUAL QUESTIONS TO WHICH WE HAVE REFERRED ARE DECIDED ON
THE SIDE OF THE CONSTITUTIONAL POWER OF THE STATE.  THE PROBLEM HERE IS
COMPARABLE TO THAT IN ANOTHER FIELD OF CONSTITUTIONAL LAW IN WHICH
COURTS ARE CALLED UPON TO DETERMINE WHETHER PARTICULAR STATE ACTS
UNDULY BURDEN INTERSTATE COMMERCE.  IN MAKING THE FACTUAL JUDGMENT
THERE, WE HAVE RELIED HEAVILY ON THE PRESUMPTION OF CONSTITUTIONALITY
IN FAVOR OF THE STATE STATUTE.  SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177, 188, 191.  FN5 

THE BENEFIT OF A PRESUMPTION IS ALSO GIVEN IN CASES OF CONFLICT OF
STATE OR STATE AND TERRITORIAL WORKMEN'S COMPENSATION ACTS UNDER THE
FULL FAITH AND CREDIT CLAUSE.  THERE, AS HERE, THE ISSUE IS A FACTUAL
ONE ARISING FROM A CLASH OF INTEREST OF TWO JURISDICTIONS.  IN SUCH A
CASE, INVOLVING THE QUESTION OF WHETHER THE CALIFORNIA OR THE ALASKA
WORKMEN'S COMPENSATION ACT SHOULD APPLY TO A RESIDENT OF CALIFORNIA
INJURED IN ALASKA WHO BROUGHT SUIT IN CALIFORNIA, THIS COURT HAS SAID:
"THE ENACTMENT OF THE PRESENT STATUTE OF CALIFORNIA WAS WITHIN STATE
POWER AND INFRINGES NO CONSTITUTIONAL PROVISION.  PRIMA FACIE EVERY
STATE IS ENTITLED TO ENFORCE IN ITS OWN COURTS ITS OWN STATUTES,
LAWFULLY ENACTED."  ALASKA PACKERS ASSN. V. INDUSTRIAL COMMISSION, 294
U.S. 532, 547.  AND SEE PACIFIC INS. CO. V. INDUSTRIAL COMMISSION, 306
U.S. 493, 503. 

NOT ONLY DOES THE STATE ACT IN THE INSTANT CASE APPEAR TO COVER THIS
EMPLOYEE, ASIDE FROM THE CONSTITUTIONAL CONSIDERATION, BUT NO
CONFLICTING PROCESS OF ADMINISTRATION IS APPARENT.  THE FEDERAL
AUTHORITIES HAVE TAKEN NO ACTION UNDER THE LONGSHOREMEN'S ACT, AND IT
DOES NOT APPEAR THAT THE EMPLOYER HAS EITHER MADE THE SPECIAL PAYMENTS
REQUIRED OR CONTROVERTED PAYMENT IN THE MANNER PRESCRIBED IN THE ACT. 
33 U.S.C. SEC. 914(B) AND (D).  UNDER ALL THE CIRCUMSTANCES OF THIS
CASE, WE WILL RELY ON THE PRESUMPTION OF CONSTITUTIONALITY IN FAVOR OF
THIS STATE ENACTMENT; FOR ANY CONTRARY DECISION RESULTS IN OUR HOLDING
THE WASHINGTON ACT UNCONSTITUTIONAL AS APPLIED TO THIS PETITIONER.  A
CONCLUSION OF UNCONSTITUTIONALITY OF A STATE STATUTE CAN NOT BE RESTED
ON SO HAZARDOUS A FACTUAL FOUNDATION HERE, ANY MORE THAN IN THE OTHER
CASES CITED.    GIVING THE FULL WEIGHT TO THE PRESUMPTION, AND
RESOLVING ALL DOUBTS IN FAVOR OF THE ACT, WE HOLD THAT THE CONSTITUTION
IS NO OBSTACLE TO THE PETITIONER'S RECOVERY.  THE CASE IS REMANDED FOR
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  THIS ARTICLE EXTENDS THE JURISDICTION OF FEDERAL COURTS "TO ALL
CASES OF ADMIRALTY AND MARITIME JURISDICTION." 

FN2  CASES WHICH LEND STRENGTH TO PETITIONER'S POSITION ARE:  SULTAN
RAILWAY & TIMBER CO. V. DEPT. OF LABOR, 277 U.S. 135; GRANT SMITH
PORTER CO. V. ROHDE, 257 U.S. 469; MILLERS' UNDERWRITERS V. BRAUD, 270
U.S. 59; EX PARTE ROSENGRANT, 213 ALA. 202, 104 SO. 409, AFFIRMED 273
U.S. 664; STATE INDUSTRIAL BOARD OF N.Y. V. TERRY & TENCH CO., 273 U.S.
639, REPORTED AS LAHTI V. TERRY & TENCH CO., 240 N.Y. 292, 148 N.E.
527; ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMMISSION, 276 U.S.
467.  AND NOTE THE DISSENTING VIEW IN BAIZLEY IRON WORKS V. SPAN,
SUPRA; U.S. CASUALTY CO. V. TAYLOR, 64 F.2D 521, CERT. DEN.  290 U.S.
639; NEW AMSTERDAM CASUALTY CO. V. MCMANIGAL, 87 F.2D 332; IN RE
HERBERT, 283 MASS. 348, 186 N.E. 554.  CASES AIDING RESPONDENT'S VIEW:
BAIZLEY IRON WORKS V. SPAN, 281 U.S. 222; GONSALVES V. MORSE DRY DOCK
CO., 266 U.S. 171; NOGUEIRA V. N.Y., N.H. & H.R. CO., 281 U.S. 128;
NORTHERN COAL CO. V. STRAND, 278 U.S. 142; EMPLOYERS' LIABILITY
ASSURANCE CO. V. COOK, 281 U.S. 233.  FOR A NUMBER OF STATE CASES
SUPPORTING EACH POSITION, SEE THE CIRCUIT COURT OPINION IN MOTOR BOAT
SALES V. PARKER, 116 F.2D 789.  FOR DISCUSSION OF THE PROBLEM, SEE
MORRISON, WORKMEN'S COMPENSATION AND THE MARITIME LAW, 38 YALE L.J.
472. 

FN3  STATE INDUSTRIAL COMMISSIONS HAVE FOUND REAL DIFFICULTY IN
DETERMINING THEIR PROPER FUNCTION IN RESPECT TO MARITIME ACCIDENTS. 
SEE THE DISCUSSION OF THIS PROBLEM AT THE 19TH ANNUAL MEETING OF THE
INTERNATIONAL ASSOCIATION OF INDUSTRIAL ACCIDENT BOARDS AND
COMMISSIONS, BULL.  577 OF THE BUREAU OF LABOR STATISTICS, P.
119(1933).  A QUESTION NOT MENTIONED ABOVE WHICH HAS BEEN CONSIDERED IN
SEVERAL CASES IS THAT OF THE JURISDICTION TO WHICH ARE TO BE ASSIGNED
ACCIDENTS AFFECTING PERSONS LOADING BOATS WHILE ON THE WHARF; ACCIDENTS
AFFECTING PERSONS LOADING VESSELS WHILE ON THE VESSEL; ACCIDENTS
AFFECTING PERSONS STANDING ON EITHER THE VESSEL OR THE WHARF WHO ARE
KNOCKED INTO THE WATER.  SMITH & SON V. TAYLOR, 276 U.S. 179; VANCOUVER
S.S. CO. V. RICE, 288 U.S. 445; MINNIE V. PORT HURON TERMINAL CO., 295
U.S. 647. 

FN4  FOR THIS EXPRESSION OF FEDERAL POLICY, SEE THE REPORT OF THE
SENATE COMMITTEE ON THE JUDICIARY ON THE LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT, S.R. 973, 69TH CONG., 1ST SESS., 16.  FOR
THE EXPRESSION OF PUBLIC POLICY OF THE WASHINGTON ACT, SEE REM.  REV. 
STAT. (1932) SEC. 7673. 

FN5  SEE FOR OTHER EXAMPLES OF OUR APPLICATION OF THIS PRINCIPLE,
SOUTHERN RY. CO. V. KING, 217 U.S. 524(STATUTE REGULATING OPERATION OF
INTERSTATE TRAIN AT CROSSINGS); PURE OIL CO. V. MINNESOTA, 248 U.S.
158(STATUTE REQUIRING THE INSPECTION OF CERTAIN PETROLEUM PRODUCTS
WHILE IN INTERSTATE COMMERCE); INTERSTATE BUSSES CORP. V. HOLYOKE RY.
CO., 273 U.S. 45(REQUIREMENT OF CERTIFICATE OF CONVENIENCE AND
NECESSITY FOR INTERSTATE CARRIER); INTERSTATE BUSSES CORP. V. BLODGETT,
276 U.S. 245(STATE STATUTE TAXING INTERSTATE CARRIER); RAILWAY EXPRESS
AGENCY V. VIRGINIA, 282 U.S. 440(STATUTE REQUIRING CORPORATION TO HOLD
LOCAL CHARTER).  FOR STATE COMMERCE REGULATIONS APPROVED BY THIS COURT,
SEE THE BARNWELL CASE, SUPRA, P. 188, N. 5. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

ANY LEGISLATIVE SCHEME THAT COMPENSATES WORKMEN OR THEIR FAMILIES FOR
INDUSTRIAL MISHAPS SHOULD BE CAPABLE OF SIMPLE AND DEPENDABLE
ENFORCEMENT.  THAT WAS THE AIM OF CONGRESS WHEN, WITH DUE REGARD FOR
THE DIVERSE CONDITIONS IN THE SEVERAL STATES, IT AFFORDED TO HARBOR
WORKERS THE BENEFITS OF STATE WORKMEN'S COMPENSATION LAWS.  ACT OF
OCTOBER 6, 1917, C. 97, 40 STAT. 395, AS AMENDED BY THE ACT OF JUNE 10,
1922, C. 216, 42 STAT. 634.  BUT SOUTHERN PACIFIC CO. V. JENSEN, 244
U.S. 205, AND CASES FOLLOWING, FRUSTRATED THIS PURPOSE. 

SUCH A DESIRABLE END CANNOT NOW BE ACHIEVED MERELY BY JUDICIAL
REPUDIATION OF THE JENSEN DOCTRINE.  TOO MUCH HAS HAPPENED IN THE
TWENTY-FIVE YEARS SINCE THAT ILL-STARRED DECISION.  FEDERAL AND STATE
ENACTMENTS HAVE SO ACCOMMODATED THEMSELVES TO THE COMPLEXITY AND
CONFUSION INTRODUCED BY THE JENSEN RULINGS THAT THE RESOURCES OF
ADJUDICATION CAN NO LONGER BRING RELIEF FROM THE DIFFICULTIES WHICH THE
JUDICIAL PROCESS ITSELF BROUGHT INTO BEING.  THEREFORE, UNTIL CONGRESS
SEES FIT TO ATTEMPT ANOTHER COMPREHENSIVE SOLUTION OF THE PROBLEM, THIS
COURT CAN DO NO MORE THAN BRING SOME ORDER OUT OF THE REMAINING
JUDICIAL CHAOS AS MARGINAL SITUATIONS COME BEFORE US.  BECAUSE IT
CONTRIBUTES TO THAT END, I JOIN IN THE COURT'S OPINION. 

THEORETIC ILLOGIC IS INEVITABLE SO LONG AS THE EMPLOYEE IN A
SITUATION LIKE THE PRESENT IS PERMITTED TO RECOVER EITHER UNDER THE
FEDERAL ACT (CF. PARKER V. MOTOR BOAT SALES, 314 U.S. 244; NORTHERN
COAL CO. V. STRAND, 278 U.S. 142; NOGUEIRA V. N.Y., N.H. & H.R. CO.,
281 U.S. 128; EMPLOYERS' LIABILITY ASSURANCE CO. V. COOK, 281 U.S. 233)
OR UNDER A STATE STATUTE (CF. MILLERS' UNDERWRITERS V. BRAUD, 270 U.S.
59; ALASKA PACKERS ASSN. V. ACCIDENT COMM'N, 276 U.S. 467).  THAT IS
THE PRACTICAL RESULT, WHETHER IT BE REACHED BY THE COURT'S PATH OR THAT
APPARENTLY LEFT OPEN UNDER THE CHIEF JUSTICE'S VIEWS.  IT IS SCANT
COMFORT TO AN EMPLOYER THAT HE MAY FIND HE HAS COMMITTED A MISDEMEANOR
IN NOT POSTING A BOND AS REQUIRED BY THE FEDERAL ACT BECAUSE HE MAY
HAVE BEEN ADVISED, NOT UNNATURALLY, THAT UNDER THE PRIOR RULINGS OF
THIS COURT THE ACTIVITIES OF HIS EMPLOYEES WERE LOCAL IN NATURE AND
HENCE HE COULD BE SUED ONLY UNDER STATE LAW. 

MR. CHIEF JUSTICE STONE: 

ANY EFFORT TO LESSEN THE UNCERTAINTIES AND COMPLEXITIES WHICH HAVE
FOLLOWED IN THE WAKE OF THE JENSEN DECISION AND ITS SUCCESSORS DURING
THE PAST TWENTY-FIVE YEARS DESERVES SYMPATHETIC CONSIDERATION.  BUT IN
THE PRESENT STATE OF THE LAW, THE COURT'S ATTEMPT TO REMOVE THEM BY
CONSTRUING STATE WORKMEN'S COMPENSATION ACTS AND THE LONGSHOREMEN'S AND
HARBOR WORKERS' ACT SO THAT THEIR COVERAGES OVERLAP, CAN HARDLY BE
DEEMED TO BE WITHIN JUDICIAL COMPETENCE. 

PAYMENT OF COMPENSATION "ONLY  ...  IF RECOVERY FOR THE DISABILITY OR
DEATH THROUGH WORKMEN'S COMPENSATION PROCEEDINGS MAY NOT VALIDLY BE
PROVIDED BY STATE LAW."  IN PARKER V. MOTOR BOAT SALES, 314 U.S. 244,
250, WE HELD, AS A MATTER OF CONSTRUCTION OF THIS CLAUSE OF THE
STATUTE, THAT IT HAD ADOPTED THE RATIONALE OF JENSEN AND ITS FOLLOWERS,
REGARDLESS OF THEIR CONSTITUTIONAL VALIDITY, AS "THE MEASURE BY WHICH
CONGRESS INTENDED TO MARK THE SCOPE OF THE ACT THEY BROUGHT INTO
EXISTENCE."  WE THUS DECIDED THAT, IF BY THE APPLICATION OF THE JENSEN
DOCTRINE RECOVERY COULD NOT CONSTITUTIONALLY BE HAD UNDER STATE LAWS,
THE FEDERAL ACT CONFERRED A RIGHT OF RECOVERY WHETHER OR NOT THE JENSEN
DECISION WAS SOUND. 

THE COURT'S OPINION IN THE PRESENT CASE SEEMS TO PROCEED UPON THE
ASSUMPTION THAT, IF PETITIONER HAD FILED A CLAIM UNDER THE FEDERAL ACT,
AND THE FEDERAL COMMISSIONER HAD AWARDED COMPENSATION, WE WOULD SUSTAIN
HIS RULING, ALTHOUGH THE COURT NOW HOLDS THAT THE STATE AUTHORITIES
ERRONEOUSLY CONCLUDED THEY WERE WITHOUT CONSTITUTIONAL POWER TO MAKE
THE AWARD.  INDEED, AFTER OUR DECISION IN PARKER V. MOTOR BOAT SALES,
SUPRA, PETITIONER'S RIGHT OF RECOVERY UNDER THE FEDERAL ACT CAN HARDLY
BE DOUBTED:  NOT ONLY COULD A FEDERAL COMMISSIONER PROPERLY DECIDE IN
FAVOR OF JURISDICTION, BUT ANY CANDID APPLICATION OF THE JENSEN RULE
WOULD SEEM TO COMPEL REVERSAL OF A FEDERAL COMMISSIONER WHO DECLINED
JURISDICTION.  SEE NORTHERN COAL CO. V. STRAND, 278 U.S. 142, AND
EMPLOYERS' LIABILITY ASSURANCE CO. V. COOK, 281 U.S. 233, BOTH CITED TO
JUSTIFY THE FEDERAL AWARD IN THE MOTOR BOAT CASE, 314 U.S. AT 247. 

CONGRESS BY THE ENACTMENT OF THE LONGSHOREMEN'S AND HARBOR WORKERS'
ACT HAS LEFT NO ROOM FOR AN OVERLAPPING DUAL SYSTEM OF THE SORT WHICH
THE COURT NOW ESPOUSES BY PLACING ITS DECISION ON A NEW DOCTRINE THAT
RECOVERY UNDER EITHER THE STATE OR THE FEDERAL ACT IS TO BE SUSTAINED
IF THE CASE IS THOUGHT A CLOSE ONE.  SECTION 5 OF THE ACT, 33 U.S.C.
SEC. 905, PROVIDES THAT THE EMPLOYER'S LIABILITY UNDER IT "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  ...  "  SEE NOGUEIRA V. N.Y., N.H. & H.R. CO., 281
U.S. 128, 137.  I CANNOT SAY THAT THIS SECTION DOES NOT MEAN WHAT IT
SAYS.  IF THERE IS LIABILITY UNDER THE FEDERAL ACT, THAT LIABILITY IS
EXCLUSIVE.  IT FOLLOWS THAT, IN ANY CASE IN WHICH COMPENSATION MIGHT
HAVE BEEN AWARDED UNDER THE FEDERAL ACT, A RECOVERY UNDER STATE LAW IS
IN PLAIN DEROGATION OF THE TERMS OF THE FEDERAL STATUTE, AS CONSTRUED
IN THE MOTOR BOAT CASE, SUPRA.  FN1  CONGRESS HAS MADE IT OUR DUTY,
BEFORE WE SANCTION A RECOVERY UNDER STATE LAW, TO ASCERTAIN THAT AN
AWARD UNDER THE FEDERAL ACT CAN NOT BE HAD. 

THE PROPOSITION THAT AN EMPLOYEE IN A "TWILIGHT ZONE" (WHERE IT IS
DOUBTFUL WHETHER THE FEDERAL OR A STATE ACT APPLIES) CAN RECOVER UNDER
EITHER ACT, NOT ONLY CONTROVERTS THE WORDS OF THE STATUTE BUT ALSO
IMPOSES AN UNAUTHORIZED BURDEN ON THE EMPLOYER.  BESIDES BEING
SUBJECTED TO A LIABILITY WHICH THE STATUTE FORBIDS, HE IS COMPELLED, IN
ORDER TO PROTECT HIMSELF IN THE LARGE NUMBER OF CASES IN WHICH THE
COURT APPARENTLY WOULD ALLOW RECOVERY UNDER EITHER ACT, TO COMPLY WITH
BOTH.  UNDER THE FEDERAL ACT, THE EMPLOYER MUST POST SECURITY FOR
COMPENSATION IN A MANNER SPECIFIED IN SEC. 32, 33 U.S.C. SEC. 932, AND
FAILURE TO DO SO IS A MISDEMEANOR, SEC. 38, 33 U.S.C. SEC. 938,
PUNISHABLE BY FINE AND IMPRISONMENT.  UNDER STATE ACTS, THERE IS AN
OBLIGATION TO CONTRIBUTE INSURANCE PREMIUMS, OR TAKE SOME COMPARABLE
STEP, TO SAY NOTHING OF PENAL SANCTIONS WHICH A STATE MAY IMPOSE. 

CONGRESS HAS DIRECTED THAT IF THE CASE IS WITHIN THE FEDERAL STATUTE,
THE EMPLOYER SHALL BE RELIEVED OF ALL OTHER OBLIGATION.  BUT IN ORDER
TO RELIEVE THE EMPLOYEE IN A DOUBTFUL CASE OF THE NECESSITY OF FILING
TWO CLAIMS, ONE UNDER EACH ACT, A DOUBLE BURDEN IS IMPOSED ON THE
EMPLOYER BY AN INADMISSIBLE CONSTRUCTION OF THE FEDERAL ACT.  THE DUAL
SYSTEM OF PRESUMPTIONS, WHICH ARE TO OPERATE IN FAVOR OF THE EMPLOYEE,
BUT APPARENTLY NEVER AGAINST HIM, WILL SERVE TO SUSTAIN AN EXERCISE OF
EITHER STATE OF FEDERAL JURISDICTION IN EVERY CASE WITHIN THE SO-CALLED
"TWILIGHT ZONE."  BUT THIS IS ACCOMPLISHED ONLY BY DEPRIVING EMPLOYERS
OF THE IMMUNITY WHICH CONGRESS SOUGHT TO CONFER WHEN IT SET UP A SYSTEM
IN WHICH FEDERAL AND STATE ACTS ARE MADE MUTUALLY EXCLUSIVE. 

ALTHOUGH THE BASIC QUESTION IN THESE CASES IS SAID TO BE "FACTUAL,"
THE TWILIGHT ZONE DOCTRINE DOES NOT REVEAL HOW - IN VIEW OF THE GREAT
WEIGHT WHICH IS TO BE GIVEN THE FEDERAL COMMISSIONER'S FINDING, AS IN
THE MOTOR BOAT CASE - WE CAN IN THIS CASE DISREGARD THE FINDINGS OF
FOUR STATE TRIBUNALS,  FN2  OR WHAT THE FUNCTION OF THIS COURT IS TO BE
IN CASES WHERE THE FEDERAL AND THE STATE COMMISSIONERS BOTH FIND
AGAINST JURISDICTION, OR HOW THE LINE WHICH MARKS THE DOUBTFUL CASE IS
TO BE DRAWN MORE READILY THAN THAT WHICH, UNDER THE JENSEN DOCTRINE,
SEPARATES STATE FROM FEDERAL POWER. 

NOTWITHSTANDING THE RULING IN THE MOTOR BOAT CASE THAT CONGRESS HAD
ADOPTED THE JENSEN BOUNDARY OF FEDERAL JURISDICTION, THERE ARE IN THE
PRESENT CASE SPECIAL CIRCUMSTANCES WHICH TAKE IT OUT OF THAT RULING AND
LEAVE US FREE TO RECONSIDER JENSEN'S CONSTITUTIONAL BASIS.  THE
EXCLUSIVE LIABILITY SECTION OF THE FEDERAL STATUTE CONTAINS A PROVISO
THAT IF THE EMPLOYER FAILS TO GIVE SECURITY FOR PAYMENT OF
COMPENSATION, AS REQUIRED, THEN THE EMPLOYEE MAY ELECT TO CLAIM
COMPENSATION UNDER THE FEDERAL STATUTE, "OR TO MAINTAIN AN ACTION AT
LAW OR IN ADMIRALTY."  THE PURPOSE OF THIS PROVISO SEEMS TO BE TO
PRESERVE TO THE EMPLOYEE ALL REMEDIES WHICH HE MIGHT OTHERWISE HAVE
HAD, IN THE EVENT THAT THE EMPLOYER DOES NOT GIVE THE PRESCRIBED
SECURITY.  SINCE THIS RECORD DOES NOT SHOW THAT THE EMPLOYER COMPLIED,
PETITIONER IS FREE TO PURSUE ANY AVAILABLE REMEDY WHICH THE
CONSTITUTION PERMITS AND WHICH THE STATE MAY CHOOSE TO AFFORD. 

ONLY IF THE COURT WERE TO OVERRULE THE JENSEN CASE IN ITS
CONSTITUTIONAL ASPECTS COULD I JOIN IN A REVERSAL OF THE JUDGMENT
HERE.  IF WE ARE TO CONTINUE TO APPLY THE JENSEN DOCTRINE, EVEN WHEN
NOT REQUIRED TO DO SO BY THE FEDERAL ACT, THEN OUR OWN DECISIONS,
INCLUDING THE RECENT MOTOR BOAT CASE, PRECLUDE A REVERSAL OF THE
WASHINGTON COURTS.  ESCAPE FROM JENSEN'S EMBARRASSMENTS BY THE ADOPTION
OF THE TWILIGHT ZONE DOCTRINE, IN DISREGARD OF THE JURISDICTIONAL
COMMAND OF THE FEDERAL STATUTE, IS PLAINLY NOT PERMISSIBLE.  I AM NOT
PERSUADED THAT IT IS PRACTICABLE. 

FN1  THE WASHINGTON STATUTE EXPLICITLY RECOGNIZES THE EXCLUSIVENESS
OF THE FEDERAL STATUTE, FOR IN ITS COVERAGE OF EMPLOYEES ENGAGED IN
MARITIME OCCUPATIONS IT IS MADE APPLICABLE ONLY TO THOSE "FOR WHOM NO
RIGHT OR OBLIGATION EXISTS UNDER THE MARITIME LAWS."  SEC. 7693A. 

FN2  THE STATE SUPERVISOR FOUND THAT "AFTER THOROUGH INVESTIGATION IT
HAS BEEN DETERMINED THAT THE WORK WHICH THE CLAIMANT WAS DOING AT THE
TIME OF THE SAID FATAL ACCIDENT DOES NOT COME UNDER THE JURISDICTION OF
THE WORKMEN'S COMPENSATION ACT, BUT IS MARITIME IN CHARACTER" AND "THAT
THE ALLEGED INJURY WAS SUSTAINED ON BOARD A VESSEL IN NAVIGABLE WATERS
AND WAS THEREFORE UNDER ADMIRALTY JURISDICTION."  HIS FINDING AND
DECISION WERE SUSTAINED BY THE JOINT BOARD OF THE STATE DEPARTMENT OF
LABOR AND INDUSTRIES, THE STATE SUPERIOR COURT, AND THE STATE SUPREME
COURT. 
..END :



SOLA ELECTRIC CO. V. JEFFERSON CO., 317 U.S. 173 


NO. 45.  ARGUED OCTOBER 23, 1942.  - DECIDED DECEMBER 7, 1942.  - 125
F.2D 322, REVERSED. 


1.  WHERE, OWING TO THE INVALIDITY OF A PATENT, A PRICE-FIXING
STIPULATION IN A LICENSE TO MANUFACTURE THE PATENTED ARTICLE AND TO
SELL IT IN INTERSTATE COMMERCE IS IN CONFLICT WITH THE SHERMAN LAW, THE
LICENSEE IS NOT ESTOPPED TO SET UP THE INVALIDITY AGAINST THE LICENSOR
IN A SUIT BY THE LATTER TO RECOVER ROYALTIES AND TO ENJOIN SALES NOT IN
CONFORMITY WITH THE LICENSE AGREEMENT.  P. 175. 

2.  THIS QUESTION OF ESTOPPEL IS A FEDERAL QUESTION.  P. 175. 

LOCAL RULES OF ESTOPPEL WILL NOT BE PERMITTED TO THWART THE PURPOSES
OF STATUTES OF THE UNITED STATES.  ERIE R. CO. V. TOMPKINS, 304 U.S.
64, DISTINGUISHED.  P. 176. 

SOLAELECTRIC CO. V. JEFFERSON ELECTRIC CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 316 U.S. 652, TO REVIEW A JUDGMENT AFFIRMING THE DISTRICT
COURT IN UPHOLDING A PRICE-FIXING PROVISION IN A PATENT LICENSE
AGREEMENT, AND DISMISSING A COUNTERCLAIM. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR OUR DECISION IS WHETHER A PATENT LICENSEE, BY VIRTUE
OF HIS LICENSE AGREEMENT, IS ESTOPPED TO CHALLENGE A PRICE-FIXING
CLAUSE IN THE AGREEMENT BY SHOWING THAT THE PATENT IS INVALID, AND THAT
THE PRICE RESTRICTION IS ACCORDINGLY UNLAWFUL BECAUSE NOT PROTECTED BY
THE PATENT MONOPOLY. 

RESPONDENT BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, ASSERTING DIVERSITY OF CITIZENSHIP, AND
ALLEGING THAT IT WAS THE OWNER OF PATENT NO. 1,777, 256 FOR
IMPROVEMENTS IN AN ELECTRICAL TRANSFORMER; THAT IT HAD ENTERED INTO A
LICENSE CONTRACT GRANTING PETITIONER A NON-EXCLUSIVE LICENSE TO
MANUFACTURE AND SELL THE PATENTED TRANSFORMERS THROUGHOUT THE UNITED
STATES, ITS TERRITORIES, DEPENDENCIES AND POSSESSIONS, ON PAYMENT OF A
STIPULATED ROYALTY UPON EACH TRANSFORMER SO MANUFACTURED AND SOLD.  THE
CONTRACT PROVIDED THAT THE LICENSE WAS GRANTED ON CONDITION THAT THE
"PRICES, TERMS, AND CONDITIONS OF SALE, FOR USE OR SALE" THROUGHOUT THE
LICENSED TERRITORY SHOULD NOT BE MORE FAVORABLE TO PETITIONER'S
CUSTOMERS THAN THOSE PRESCRIBED FROM TIME TO TIME BY RESPONDENT FOR ITS
OWN SALES AND THOSE OF ITS OTHER LICENSEES.  RESPONDENT SOUGHT RECOVERY
OF UNPAID ROYALTIES AND ALSO AN INJUNCTION RESTRAINING FURTHER SALES
EXCEPT IN CONFORMITY TO THE TERMS OF THE LICENSE AGREEMENT. 

PETITIONER BY ITS ANSWER ADMITTED THAT IT HAD MANUFACTURED TWO TYPES
OF TRANSFORMERS, ONE COVERED BY CERTAIN NARROW CLAIMS OF THE PATENT,
CLAIMS 8, 14 AND 19, THE VALIDITY OF WHICH IT DOES NOT CHALLENGE, THE
OTHER ALLEGED TO BE COVERED BY CERTAIN BROADER CLAIMS.  PETITIONER ALSO
FILED A COUNTERCLAIM ALLEGING THAT THE BROAD CLAIMS ARE INVALID FOR
WANT OF NOVELTY, AS IT ASSERTED HAD BEEN RECOGNIZED IN THE SIXTH
CIRCUIT IN FRANCE MFG. CO. V. JEFFERSON ELECTRIC CO., 106 F.2D 605; AND
THAT RESPONDENT, BY REASON OF THE PRICE CONTROL PROVISIONS OF THE
LICENSING CONTRACT AND THE INVALIDITY OF THE BROAD CLAIMS, WAS NOT
ENTITLED TO RECOVER ROYALTIES UPON THOSE TRANSFORMERS COVERED ONLY BY
THE BROAD CLAIMS.  PETITIONER ACCORDINGLY PRAYED A DECLARATORY JUDGMENT
THAT MOST OF THE CLAIMS, EXCEPT 8, 14 AND 19, ARE INVALID, AND FOR
OTHER RELIEF. 

THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED THE
DISTRICT COURT'S ORDER DISMISSING THE COUNTERCLAIM, 125 F.2D 322,
RULING THAT PETITIONER, HAVING ACCEPTED A LICENSE UNDER THE PATENT, WAS
ESTOPPED TO DENY ITS VALIDITY.  AND, TREATING THE PATENT AS VALID, IT
HELD THAT THE STIPULATION FOR CONTROL OF THE SALES PRICE OF THE
PATENTED ARTICLES MANUFACTURED BY THE LICENSEE WAS A LAWFUL EXERCISE OF
THE PATENT MONOPOLY.  WE GRANTED CERTIORARI, 316 U.S. 652, THE QUESTION
BEING OF IMPORTANCE TO THE ADMINISTRATION OF THE PATENT LAWS AND THE
SHERMAN ANTI-TRUST ACT. 

THE CIRCUIT COURT OF APPEALS, IN HOLDING THAT PETITIONER AS A
LICENSEE WAS ESTOPPED TO CHALLENGE THE VALIDITY OF THE PATENT, DID NOT
SAY WHETHER IT CONSIDERED THAT IT WAS APPLYING A RULE OF FEDERAL OR OF
STATE LAW, AND IT CITED NO DECISIONS OF EITHER THE FEDERAL OR THE
ILLINOIS COURTS.  WHERE NO PRICE-FIXING STIPULATION WAS INVOLVED IN THE
LICENSE CONTRACT, THIS RULE OF ESTOPPEL, WHICH WAS NOT QUESTIONED BY
COUNSEL, WAS APPLIED WITHOUT DISCUSSION IN UNITED STATES V. HARVEY
STEEL CO., 196 U.S. 310; CF. KINSMAN V. PARKHURST, 18 HOW.  289.  WE
NEED NOT DECIDE WHETHER IN SUCH A CASE THE RULE IS ONE OF LOCAL LAW,
CF. DALE TILE MFG. CO. V. HYATT, 125 U.S. 46, 53-54, OR WHETHER, IF IT
BE REGARDED AS A RULE OF FEDERAL LAW BECAUSE THE CONSTRUCTION AND
APPLICATION OF THE PATENT LAWS ARE INVOLVED, IT WAS RIGHTLY APPLIED IN
UNITED STATES V. HARVEY STEEL CO., SUPRA. FOR HERE A DIFFERENT QUESTION
IS PRESENTED - WHETHER THE DOCTRINE OF ESTOPPEL AS INVOKED BELOW IS SO
IN CONFLICT WITH THE SHERMAN ACT'S PROHIBITION OF PRICE-FIXING THAT
THIS COURT MAY RESOLVE THE QUESTION EVEN THOUGH ITS CONCLUSION BE
CONTRARY TO THAT OF A STATE COURT. 

THE PRESENT LICENSE CONTRACT CONTEMPLATES AND REQUIRES THAT
PETITIONER, ON SALES OF THE LICENSED TRANSFORMERS THROUGHOUT THE UNITED
STATES, SHALL CONFORM TO THE PRICES FIXED BY RESPONDENT FOR THE SALE OF
COMPETING PATENTED ARTICLES BY OTHER LICENSEES AND BY RESPONDENT.  SUCH
A RESTRICTION ON THE PRICE OF ARTICLES ENTERING INTERSTATE COMMERCE IS
A VIOLATION OF THE SHERMAN ACT SAVE ONLY AS IT IS WITHIN THE PROTECTION
OF A LAWFULLY GRANTED PATENT MONOPOLY.  SEE UNITED STATES V. UNIVIS
LENS CO., 316 U.S. 241, 250, AND CASES CITED; UNITED STATES V. MASONITE
CORP., 316 U.S. 265, 275-77.  AGREEMENTS FIXING THE COMPETITIVE SALES
PRICE OF ARTICLES MOVING INTERSTATE, NOT WITHIN THE PROTECTION OF A
PATENT, ARE UNLAWFUL BECAUSE PROHIBITED BY THE SHERMAN ACT. 

IT IS FAMILIAR DOCTRINE THAT THE PROHIBITION OF A FEDERAL STATUTE MAY
NOT BE SET AT NAUGHT, OR ITS BENEFITS DENIED, BY STATE STATUTES OR
STATE COMMON LAW RULES.  IN SUCH A CASE OUR DECISION IS NOT CONTROLLED
BY ERIE R. CO. V. TOMPKINS, 304 U.S. 64.  THERE WE FOLLOWED STATE LAW
BECAUSE IT WAS THE LAW TO BE APPLIED IN THE FEDERAL COURTS.  BUT THE
DOCTRINE OF THAT CASE IS INAPPLICABLE TO THOSE AREAS OF JUDICIAL
DECISION WITHIN WHICH THE POLICY OF THE LAW IS SO DOMINATED BY THE
SWEEP OF FEDERAL STATUTES THAT LEGAL RELATIONS WHICH THEY AFFECT MUST
BE DEEMED GOVERNED BY FEDERAL LAW HAVING ITS SOURCE IN THOSE STATUTES,
RATHER THAN BY LOCAL LAW.  ROYAL INDEMNITY CO. V. UNITED STATES, 313
U.S. 289, 296; PRUDENCE CORP. V. GEIST, 316 U.S. 89, 95; BOARD OF
COMM'RS V. UNITED STATES, 308 U.S. 343, 349-50; CF. O'BRIEN V. WESTERN
UNION TELEGRAPH CO., 113 F.2D 539, 541.  WHEN A FEDERAL STATUTE
CONDEMNS AN ACT AS UNLAWFUL, THE EXTENT AND NATURE OF THE LEGAL
CONSEQUENCES OF THE CONDEMNATION, THOUGH LEFT BY THE STATUTE TO
JUDICIAL DETERMINATION, ARE NEVERTHELESS FEDERAL QUESTIONS, THE ANSWERS
TO WHICH ARE TO BE DERIVED FROM THE STATUTE AND THE FEDERAL POLICY
WHICH IT HAS ADOPTED.  TO THE FEDERAL STATUTE AND POLICY, CONFLICTING
STATE LAW AND POLICY MUST YIELD.  CONSTITUTION, ART. VI, CL. 2; AWOTIN
V. ATLAS EXCHANGE BANK, 295 U.S. 209; DEITRICK V. GREANEY, 309 U.S.
190, 200-01. 

THE FEDERAL COURTS HAVE BEEN CONSISTENT IN HOLDING THAT LOCAL RULES
OF ESTOPPEL WILL NOT BE PERMITTED TO THWART THE PURPOSES OF STATUTES OF
THE UNITED STATES.  SEE, IN THE CASE OF FEDERAL STATUTES GOVERNING
INTERSTATE FREIGHT RATES, PITTSBURGH, C.C. & ST. L. RY. CO. V. FINK,
250 U.S. 577, 582-83; CHESAPEAKE & OHIO RY. CO. V. MARTIN, 283 U.S.
209, 220-22; CF. ATCHISON, T. & S.F. RY. CO. V. HAROLD, 241 U.S. 371;
AND FEDERAL STATUTES AFFECTING NATIONAL BANKS, AWOTIN V. ATLAS EXCHANGE
BANK, SUPRA; DEITRICK V. GREANEY, SUPRA. 

A STATE BY APPLYING ITS OWN LAW OF SPECIFIC PERFORMANCE MAY NOT
COMPEL THE PERFORMANCE OF A CONTRACT CONTEMPLATING VIOLATION OF THE
FEDERAL LAND LAWS, ANDERSON V. CARKINS, 135 U.S. 483.  SIMILARLY, THIS
COURT HAS DECLARED THAT ANYONE SUED UPON A CONTRACT MAY SET UP AS A
DEFENSE THAT IT IS IN VIOLATION OF THE SHERMAN ACT.  BEMENT V. NATIONAL
HARROW CO., 186 U.S. 70, 88.  AND IT HAS PROCEEDED ON THE ASSUMPTION
THAT WHETHER THE PARTIES TO AN AGREEMENT IN VIOLATION OF THE ACT ARE IN
PARI DELICTO IS A QUESTION OF FEDERAL, NOT STATE, LAW.  HARRIMAN V.
NORTHERN SECURITIES CO., 197 U.S. 244; EASTMAN KODAK CO. V. SOUTHERN
PHOTO CO., 273 U.S. 359, 376-78.  IT DECIDED, IN CONTINENTAL WALL PAPER
CO. V. VOIGHT & SONS CO., 212 U.S. 227, THAT A VENDEE OF GOODS
PURCHASED FROM AN ILLEGAL COMBINATION IN PURSUANCE OF AN ILLEGAL
AGREEMENT, BOTH IN VIOLATION OF THE SHERMAN ACT, CAN PLEAD THE
ILLEGALITY IN DEFENSE TO A SUIT FOR THE PURCHASE PRICE.  THIS DECISION
WENT MUCH FURTHER THAN IT IS NECESSARY TO GO HERE TO CONCLUDE THAT
PETITIONER MAY ASSERT THE ILLEGALITY OF THE PRICE-FIXING AGREEMENT AND
MAY OFFER ANY COMPETENT EVIDENCE TO ESTABLISH ITS ILLEGALITY, INCLUDING
PROOF OF THE INVALIDITY OF THE PATENT. 

LOCAL RULES OF ESTOPPEL WHICH WOULD FASTEN UPON THE PUBLIC AS WELL AS
THE PETITIONER THE BURDEN OF AN AGREEMENT IN VIOLATION OF THE SHERMAN
ACT MUST YIELD TO THE ACT'S DECLARATION THAT SUCH AGREEMENTS ARE
UNLAWFUL, AND TO THE PUBLIC POLICY OF THE ACT WHICH IN THE PUBLIC
INTEREST PRECLUDES THE ENFORCEMENT OF SUCH UNLAWFUL AGREEMENTS.  CF.
MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488, 492-93.  REVERSED. 
..END :























MANGUS V. MILLER, 317 U.S. 178 


NO. 74.  ARGUED NOVEMBER 17, 1942.  - DECIDED DECEMBER 7, 1942.  - 125
F.2D 507, REVERSED. 


1.  THE INTEREST OF ONE OF TWO JOINT TENANTS IN A CONTRACT TO PURCHASE
LAND PAYABLE IN INSTALLMENTS, WHERE UNDER STATE LAW IT IS AN INTEREST
WHICH MAY BE ALIENATED AND SUBJECTED TO EXECUTION AND SEPARATE SALE, IS
PROPERTY WHICH MAY BE ADMINISTERED IN FARMER-DEBTOR PROCEEDINGS UNDER
SEC. 75 OF THE BANKRUPTCY ACT, AS AMENDED, ALTHOUGH SUBSEQUENT TO THE
FILING OF THE PETITION THE INTEREST OF HIS CO-TENANT HAS BEEN FORFEITED
BY DEFAULT IN PAYMENT OF THE INSTALLMENTS OF THE PURCHASE PRICE.  P.
183. 

2.  THE FARMER-DEBTOR IN THIS CASE, WHO WAS A JOINT TENANT OF A
LANDPURCHASE CONTRACT, HIS WIFE BEING THE OTHER JOINT TENANT, BUT, SO
FAR AS APPEARS, NOT A FARMER-DEBTOR, WAS AUTHORIZED TO FILE HIS
PETITION UNDER SEC. 75 OF THE BANKRUPTCY ACT, AND THUS TO SUBJECT HIS
INTEREST TO THE JURISDICTION OF THE BANKRUPTCY COURT; AND HE THEREUPON
BECAME ENTITLED TO THE BENEFIT OF THE MORATORIUM AFFORDED BY SEC. 75(O)
FOR THE PURPOSE OF ENABLING HIM TO EFFECT A COMPOSITION WITH HIS
CREDITORS, FAILING WHICH HE WAS ENTITLED TO PROCEED UNDER SEC. 75(S). 
P. 184. 

IN ADVANCE OF AN AUTHORITATIVE DETERMINATION BY THE STATE COURTS OF
THE RIGHTS OF PURCHASERS OF LAND AS JOINT TENANTS WHEN THE INTEREST OF
ONE OF THEM HAS BEEN FORFEITED FOR NON-PAYMENT OF PURCHASE MONEY, THIS
COURT CAN NOT SAY THAT THE DIFFICULTIES OF ADMINISTERING THE INTERESTS
OF THE PARTIES UNDER SEC. 75(S) OF THE BANKRUPTCY ACT ARE
INSURMOUNTABLE.  P. 185. 

3.  THE COURT OF BANKRUPTCY, HAVING CONTROL UNDER SEC. 75(E) OF THE
BANKRUPTCY ACT OF THE FARMER'S PROPERTY, IS FREE TO PERMIT AND TO
FACILITATE PROCEEDINGS IN THE STATE COURTS TO ADJUDICATE THE INTERESTS
OF THE PARTIES TO THE CONTRACT, SUBJECT TO THE STAY DIRECTED BY SEC.
75(O) OF ANY CANCELLATION OF THE CONTRACT OR FORECLOSURE OF THE FARMER
DEBTOR'S INTEREST IN IT.  P. 185. 

4.  IN THE EVENT THAT NO COMPOSITION IS EFFECTED, THE FARMER-DEBTOR
MAY ASK TO BE ADJUDICATED A BANKRUPT AND AS SUCH TO BE PLACED IN
POSSESSION OF THE PROPERTY UNDER THE PROVISIONS OF SEC. 75(S) UPON
TERMS WHICH WILL ENABLE HIM, BY PAYING A SUITABLE RENTAL, TO REDEEM THE
PROPERTY UNLESS HE IS SOONER ABLE TO FINANCE HIMSELF.  IF HIS INTEREST
IS FOUND TO BE SUCH THAT IT IS IMPRACTICABLE TO PLACE HIM IN POSSESSION
OR OTHERWISE TO ADMINISTER THE PROPERTY AS PROVIDED BY SEC. 7(S), HE IS
ENTITLED TO PETITION THE COURT FOR LEAVE TO REDEEM THE PROPERTY, AND IF
HE IS UNABLE TO REDEEM IT, A SALE OF HIS INTEREST MAY BE ORDERED AS
DIRECTED BY SEC. 75(S)(3).  P. 186. 

5.  IN PROCEEDINGS FOR A STAY UNDER SEC. 75(S)(2) OF THE BANKRUPTCY
ACT AS AN INCIDENT TO WHICH PETITIONERS MADE A DEPOSIT OF RENTAL, THEY
WITHDREW THE DEPOSIT WHEN THE COURT RENDERED A JUDGMENT, DENYING ITS
JURISDICTION TO REVIEW; FOR REVIEW OF WHICH THEY OBTAINED A WRIT OF
CERTIORARI.  HELD: 

(1)  THAT WHETHER THE WITHDRAWAL OF THE AMOUNT DEPOSITED IS SO
INCONSISTENT WITH FURTHER PROCEEDINGS FOR THE THREE-YEAR STAY
AUTHORIZED BY SEC. 75(S) UPON PAYMENT OF A PRESCRIBED RENTAL, COULD NOT
BE DETERMINED ON THE RECORD BROUGHT TO THIS COURT, AND SHOULD, IN ANY
CASE, BE DETERMINED IN THE FIRST INSTANCE BY THE BANKRUPTCY COURT
HAVING JURISDICTION OF THE CAUSE.  P. 187. 

(2)  THE WITHDRAWAL IS NOT INCONSISTENT WITH OTHER REMEDIES WHICH THE
BANKRUPTCY COURT HAS JURISDICTION TO GIVE UNDER SEC. 75, OR WITH
RECOURSE TO MEASURES WHICH THE COURT MAY TAKE TO PERMIT AN ADJUDICATION
OF THE RIGHTS OF THE PARTIES IN THE PROPERTY INVOLVED.  P. 187. 

(3)  SINCE DEPOSIT OF RENTAL IS NOT PREREQUISITE TO JURISDICTION,
RECALL AND RECEIPT OF THE MONEY, WHATEVER EFFECT IT MAY HAVE HAD ON THE
RIGHT TO THE THREE-YEAR STAY AUTHORIZED BY SEC. 75(S), INVOLVED NO
INCONSISTENCY WITH THE ASSERTION IN THIS CASE OF THE COURT'S
JURISDICTION TO MAKE AN ADJUDICATION OF THE RIGHTS OF THE PARTIES AS A
BASIS FOR COMPOSITION AND AFFORD OTHER RELIEF.  P. 187. 

MANGUS ET AL. V. MILLER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 316 U.S. 657, TO REVIEW A JUDGMENT OF THE COURT BELOW
WHICH REVERSED ORDERS OF THE COURT OF BANKRUPTCY DENYING MOTIONS BY THE
PRESENT RESPONDENT TO STRIKE FROM THE DEBTOR'S SCHEDULES OF PROPERTY
CERTAIN LAND WHICH RESPONDENT HAD CONTRACTED TO SELL TO THE FARMER
DEBTOR AND ANOTHER IN JOINT TENANCY. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE INTEREST OF ONE OF TWO JOINT TENANTS OF A
LAND PURCHASE CONTRACT CAN BE ADMINISTERED IN FARMER-DEBTOR PROCEEDINGS
UNDER SEC. 75 OF THE BANKRUPTCY ACT AS AMENDED, 11 U.S.C. SEC. 203,
ALTHOUGH SUBSEQUENT TO THE FILING OF HIS PETITION THE INTEREST OF HIS
CO-TENANT HAD BEEN FORFEITED BY DEFAULT IN PAYMENT OF INSTALLMENTS OF
THE PURCHASE PRICE. 

PETITIONERS, HUSBAND AND WIFE, AS "JOINT TENANTS WITH FULL RIGHT OF
SURVIVORSHIP AND NOT AS TENANTS IN COMMON," ENTERED INTO A CONTRACT
WITH RESPONDENT'S ASSIGNOR FOR THE PURCHASE OF A PLOT OF LAND.  THEY
APPARENTLY ENTERED INTO POSSESSION UNDER THE CONTRACT, ALTHOUGH THE
FACT DOES NOT EXPLICITLY APPEAR IN THE RECORD.  THE CONTRACT STIPULATED
FOR A DOWN PAYMENT OF $500 OF THE PURCHASE PRICE AND FOR PAYMENT OF THE
BALANCE IN EQUAL MONTHLY INSTALLMENTS EXTENDING OVER A PERIOD OF MORE
THAN SEVEN YEARS.  NEARLY TWO YEARS LATER, THE BUYERS BEING IN DEFAULT
IN PAYMENT OF INSTALLMENTS, RESPONDENT GAVE APPROPRIATE NOTICE, IN
CONFORMITY TO STATE LAW, THAT THE CONTRACT WOULD BE FORFEITED UNLESS
ALL PAYMENTS DUE WERE MADE.  FIVE DAYS BEFORE THE DATE ON WHICH THE
FORFEITURE WAS TO BECOME EFFECTIVE, THE HUSBAND ALONE, WITHOUT
REFERENCE TO HIS CO-TENANT, FILED HIS PETITION AS A FARMER-DEBTOR UNDER
SEC. 75.  AFTER THE DATE OF FORFEITURE, RESPONDENT MOVED, ON A SHOWING
OF THE FACTS AS STATED, TO STRIKE THE LAND IN QUESTION FROM THE
SCHEDULES OF THE DEBTOR'S PROPERTY, CHALLENGING THE JURISDICTION OF THE
COURT TO ADMINISTER IT.  THE WIFE THEREUPON FILED IN THE BANKRUPTCY
PROCEEDING A "JOINDER OF ROSE L. MANGUS" IN WHICH SHE ASKED TO BE
PERMITTED TO ADOPT THE PETITION OF HER HUSBAND FOR RELIEF UNDER SEC. 75
AND HIS SCHEDULES OF PROPERTY, REFERRING TO THE LAND IN QUESTION.  IT
DOES NOT APPEAR WHETHER SHE WAS AN INSOLVENT FARMER-DEBTOR WITHIN THE
MEANING OF SEC. 75(R), AND SO ENTITLED TO THE BENEFITS OF THE ACT. 
UPON RESPONDENT'S FILING OF A SUPPLEMENTAL MOTION TO STRIKE THE LAND
FROM THE SCHEDULES OF THE DEBTOR'S PROPERTY, WITH A SHOWING THAT AT THE
TIME OF THE WIFE'S ATTEMPTED JOINDER SHE HAD FORFEITED HER INTEREST IN
THE PROPERTY, THE COURT DENIED BOTH OF RESPONDENT'S MOTIONS. 

THE COURT OF APPEALS FOR THE TENTH CIRCUIT REVERSED, 125 F.2D 507,
HOLDING THAT THE RIGHT OR INTEREST WHICH THE WIFE HAD ACQUIRED IN THE
LAND BY THE CONTRACT OF PURCHASE HAD BEEN FORFEITED BEFORE HER
ATTEMPTED JOINDER IN THE BANKRUPTCY PROCEEDINGS, SEE FEDERAL LAND BANK
V. SORENSON, 121 P.2D 398; LEONE V. ZUNIGA, 84 UTAH 417, 34 P.2D 699,
AND THAT IN CONSEQUENCE SHE HAD NO REMAINING INTEREST IN THE LAND WHICH
SHE COULD ASK THE BANKRUPTCY COURT TO ADMINISTER.  IT THOUGHT THAT BY
THE FORFEITURE RESPONDENT BECAME VESTED AS HER SUCCESSOR WITH THE
INTEREST WHICH SHE HAD ACQUIRED IN THE LAND BY VIRTUE OF THE CONTRACT. 
BUT IT WAS ALSO OF OPINION THAT NOTWITHSTANDING THE FORFEITURE SHE
REMAINED A JOINT TENANT OF THE CONTRACT WITH HER HUSBAND AND SO WAS AN
INDISPENSABLE PARTY TO ANY JUDGMENT OR ORDER OF THE BANKRUPTCY COURT
MAKING DISPOSITION OF THE DEBTOR'S INTEREST IN THE CONTRACT AND THE
PROPERTY.  IT ALSO POINTED OUT THAT ALTHOUGH THE INTEREST OF A BANKRUPT
JOINT TENANT MAY BE SOLD IN A REGULAR BANKRUPTCY PROCEEDING, THE
PROCEEDINGS UNDER SEC. 75(A)-(R) DO NOT LOOK IN THE FIRST INSTANCE TO A
SALE OF THE DEBTOR'S PROPERTY OR OPERATE TO PASS TITLE TO A TRUSTEE OR
THE COURT, BUT CONTEMPLATE MAINTENANCE OF THE STATUS QUO BY A
MORATORIUM PENDING AN ADJUSTMENT OR COMPOSITION OF HIS DEBTS, AND HIS
ULTIMATE EMERGENCE FROM BANKRUPTCY WITH ALL HIS PROPERTY.  SEE JOHN
HANCOCK INS. CO. V. BARTELS, 308 U.S. 180, 184; WRIGHT V. UNION CENTRAL
LIFE INS. CO., 311 U.S. 273. 

FROM ALL THIS THE COURT CONCLUDED THAT THE DIFFICULTIES OF
ADMINISTRATION OF THE BANKRUPT'S INTEREST IN SEC. 75 PROCEEDINGS ARE SO
INSURMOUNTABLE AS TO REQUIRE DISMISSAL OF THE PROCEEDING.  FN1  IN THE
CIRCUMSTANCES OF THIS CASE, IT ATTRIBUTED THESE DIFFICULTIES TO THE
UNCERTAINTY AS TO THE RIGHTS OF THE HUSBAND AS JOINT TENANT OF THE
CONTRACT WITH HIS WIFE AND AS TENANT IN COMMON WITH RESPONDENT OF THE
LAND.  THE UNCERTAINTY AROSE, IT WAS SUGGESTED, FROM THE DOUBT WHETHER
THE HUSBAND, UPON EFFECTING AN ADJUSTMENT AND COMPROMISE WITH
CREDITORS, WOULD BE ENTITLED TO ACQUIRE ALL THE LAND UPON PAYMENT OF
THE BALANCE OF THE PURCHASE PRICE, OR ONLY TO DEMAND HALF OF IT ON
PAYMENT OF ONEHALF OF THE PURCHASE MONEY DUE.  WE GRANTED CERTIORARI,
316 U.S. 657, ON A PETITION WHICH CHALLENGED THE RULINGS OF THE CIRCUIT
COURT OF APPEALS THAT THE WIFE WAS AN INDISPENSABLE PARTY TO THE FARMER
DEBTOR PROCEEDING, AND THAT THE INTEREST OF THE HUSBAND ALONE WAS NOT
SUSCEPTIBLE OF ADMINISTRATION IN THAT PROCEEDING. 

"SHALL IMMEDIATELY SUBJECT THE FARMER AND ALL HIS PROPERTY  ...  FOR
ALL THE PURPOSES OF THIS SECTION, TO THE EXCLUSIVE JURISDICTION OF THE
COURT  ...  INCLUDING  ...  ANY EQUITY OR RIGHT IN ANY SUCH PROPERTY,
INCLUDING, AMONG OTHERS, CONTRACTS FOR PURCHASE, CONTRACTS FOR DEED, OR
CONDITIONAL SALES CONTRACTS."  SECTION 75(O) PROVIDES AN EFFECTIVE
MORATORIUM, PENDING FURTHER PROCEEDINGS, AGAINST THE FORFEITURE OF THE
DEBTOR'S INTEREST IN THE PROPERTY OVER WHICH THE COURT HAS
JURISDICTION.  THIS IT ACCOMPLISHES BY STAYING, UNLESS OTHERWISE
PERMITTED BY THE COURT, PROCEEDINGS FOR FORECLOSURE OF A MORTGAGE, OR
FOR CANCELLATION OR RESCISSION OF AN AGREEMENT FOR THE SALE OF LAND, OR
FOR THE RECOVERY OF POSSESSION OF LAND, OR FOR THE SEIZURE OR SALE OF
THE DEBTOR'S PROPERTY UNDER CONDITIONAL SALES AGREEMENT.  KALB V.
FEUERSTEIN, 308 U.S. 433; JOHN HANCOCK INS. CO. V. BARTELS, 308 U.S.
180. 

WE SEE NO REASON TO DOUBT THAT, UNDER THESE PROVISIONS AND OTHERS
PRESENTLY TO BE NOTED, THE BANKRUPTCY COURT HAD JURISDICTION IN A SEC.
75 PROCEEDING OVER THE HUSBAND'S INTEREST AS JOINT TENANT IN THE
CONTRACT FOR THE PURCHASE OF THE LAND.  SECTION 75(N) EXPRESSLY
SUBJECTS TO THE JURISDICTION OF THE BANKRUPTCY COURT THE VENDEE'S
INTEREST IN SUCH A CONTRACT.  AND, SO FAR AS WE ARE ADVISED, UTAH
ACCEPTS THE GENERAL COMMON LAW RULES RELATING TO JOINT TENANCIES,
INCLUDING THE RULES PERMITTING ALIENATION OF THE INTEREST OF A JOINT
TENANT, AND MAKING IT PROPERTY SUBJECT TO EXECUTION AND SEPARATE SALE. 
CF. SPALDING V. ALLRED, 23 UTAH 354, 64 P. 1100; NEILL V. ROYCE, 120
P.2D 327; SEC. 104-37-9 REVISED STATUTES OF UTAH, 1933; AND SEE 3
TIFFANY, REAL PROPERTY (3RD ED.)  SEC. 425; 2 THOMPSON, REAL PROPERTY,
SECS. 1714-17.  WHEN SO LOCALLY RECOGNIZED, THE INTEREST OF A JOINT
TENANT IS A PROPERTY INTEREST SUBJECT TO THE JURISDICTION OF THE
BANKRUPTCY COURT UNDER SEC. 70 OF THE GENERAL BANKRUPTCY ACT, 11 U.S.C.
SEC. 110.  MATTER OF DEPREE, 30 A.B.R. (N.S.)  629; MATTER OF WILLIAMS,
16 A.B.R. (N.S.)  218; CF. IN RE BROWN, 60 F.2D 269; IN RE WILLIAMS'
ESTATE, 16 F.SUPP.  909. 

WHICH PROVIDES THAT THE FILING OF A PETITION SHALL SUBJECT "THE FARMER
AND ALL HIS PROPERTY" TO THE JURISDICTION OF THE COURT, FURTHER DIRECTS
THAT, "IN PROCEEDINGS UNDER THIS SECTION, EXCEPT AS OTHERWISE PROVIDED
HEREIN, THE JURISDICTION AND POWERS OF THE COURTS, THE TITLE, POWERS,
AND DUTIES OF ITS OFFICERS, THE DUTIES OF THE FARMER, AND THE RIGHTS
AND LIABILITIES OF CREDITORS, AND OF ALL PERSONS WITH RESPECT TO THE
PROPERTY OF THE FARMER  ...  SHALL BE THE SAME AS IF A VOLUNTARY
PETITION FOR ADJUDICATION HAD BEEN FILED AND A DECREE OF ADJUDICATION
HAD BEEN ENTERED.  ...  "  AND SUB-SECTION (S)(4) OF SEC. 75 COMMANDS
THAT "  ...  THE PROVISIONS OF THIS TITLE SHALL BE HELD TO APPLY ALSO
TO PARTNERSHIPS, COMMON, ENTIRETY, JOINT, COMMUNITY OWNERSHIP  ...  AND
ANY SUCH PARTIES MAY JOIN IN ONE PETITION." 

THE FINAL CLAUSE OF THIS PROVISION, PERMITTING BOTH JOINT TENANTS TO
JOIN IN THE PETITION, SUGGESTS THAT EITHER, IF ENTITLED TO THE BENEFITS
OF THE ACT, MAY FILE A PETITION WITHOUT THE OTHER.  SUCH WAS DECLARED
TO BE ITS PURPOSE BY THE HOUSE JUDICIARY COMMITTEE WHICH RECOMMENDED
ITS ADDITION BY WAY OF AMENDMENT TO SEC. 75(S) AS ORIGINALLY ENACTED. 
IN REPORTING THIS AMENDMENT THE COMMITTEE POINTED OUT THE DIVERSITY OF
RULINGS OF THE COURTS UNDER SEC. 75, SAYING, "SOME HAVE HELD THAT IF A
HUSBAND AND WIFE WERE JOINTLY INTERESTED, OR HAD INTERESTS IN COMMON,
OR WERE PARTNERS IN THE FARMING OPERATIONS, THAT THEN NEITHER OF THEM
COULD TAKE ADVANTAGE OF THE ACT, NOR COULD THEY JOIN.  OBVIOUSLY SUCH
WAS NOT THE INTENTION OF CONGRESS."  H.R. REP. NO. 570, 74TH CONG., 1ST
SESS., P. 4.  WE NEED NOT NOW DETERMINE WHETHER THE WIFE, WHO DOES NOT
APPEAR TO BE A FARMER-DEBTOR, COULD BEFORE THE FORFEITURE HAVE JOINED
IN THE PETITION.  IT IS ENOUGH THAT ONE JOINT TENANT IS AUTHORIZED TO
FILE HIS PETITION UNDER SEC. 75 AND SUBJECT HIS INTEREST TO THE
JURISDICTION OF THE BANKRUPTCY COURT JUST AS HE MAY UNDER SEC. 70 OF
THE GENERAL BANKRUPTCY ACT. 

ACCORDINGLY WE CONCLUDE THAT THE HUSBAND'S INTEREST IN THE PROPERTY
HELD BY HIM AS JOINT TENANT WITH HIS WIFE IS PROPERTY WITHIN THE
MEANING OF SEC. 75(N), AND THAT THE COURT ACQUIRED JURISDICTION OVER
THAT INTEREST UPON THE FILING OF HIS PETITION.  THE HUSBAND'S INTEREST
AS JOINT TENANT BEING SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY
COURT, HE WAS ENTITLED TO THE BENEFIT OF THE MORATORIUM AFFORDED BY
SEC. 75(O) FOR THE PURPOSE OF ENABLING HIM TO EFFECT A COMPOSITION WITH
HIS CREDITORS, FAILING WHICH HE WAS ENTITLED TO PROCEED UNDER SEC.
75(S).  JOHN HANCOCK INS. CO. V. BARTELS, SUPRA. 

THE COURT OF APPEALS CITED NO DECISION OF THE UTAH COURTS, AND WE ARE
REFERRED TO NONE, WHICH SUPPORTS ITS CONCLUSION THAT RESPONDENT, AS THE
RESULT OF THE FORFEITURE OF THE WIFE'S INTEREST IN THE LAND, SUCCEEDED
TO THAT INTEREST AND BECAME A CO-TENANT WITH THE HUSBAND.  SO FAR AS
THE LAW OF THAT STATE IS CONCERNED, IT WOULD SEEM TO BE AN EQUALLY
TENABLE POSITION THAT THE FORFEITURE FREED RESPONDENT'S TITLE OF ANY
EQUITABLE INTEREST OF THE WIFE AND LEFT IT SUBJECT ONLY TO SUCH DEMANDS
AS THE HUSBAND MIGHT ASSERT BY VIRTUE OF HIS INTEREST.  IN ADVANCE OF
AN AUTHORITATIVE DETERMINATION BY THE STATE COURTS OF THE RIGHTS OF THE
PARTIES TO THE CONTRACT AFTER THE FORFEITURE OF THE WIFE'S INTEREST, WE
CANNOT SAY THAT THE DIFFICULTIES OF ADMINISTERING THE HUSBAND'S
INTEREST UNDER SEC. 75(S) ARE INSURMOUNTABLE.  INDEED, BEFORE
DISMISSING THE PROCEEDINGS BECAUSE OF DIFFICULTIES IN ASCERTAINING THE
RIGHTS OF THE DEBTOR UNDER STATE LAW AND IN ADMINISTERING THEM IN
BANKRUPTCY, IT WOULD BE AN APPROPRIATE EXERCISE OF THE COURT'S
JURISDICTION TO TAKE SUITABLE MEASURES TO REMOVE THOSE DIFFICULTIES BY
AFFORDING THE INTERESTED PARTIES OPPORTUNITY TO ASSERT THEIR RIGHTS IN
THE STATE COURTS AND, WHEN THEY ARE ASCERTAINED AND DEFINED, BY
ADMINISTERING THE DEBTOR'S INTEREST AS THE ACT PROVIDES, SO FAR AS MAY
BE FOUND TO BE PRACTICABLE. 

PRIOR TO THE CONFIRMATION OR OTHER DISPOSITION OF THE COMPOSITION OR
EXTENSION PROPOSAL BY THE COURT, THE COURT SHALL EXERCISE SUCH CONTROL
OVER THE PROPERTY OF THE FARMER AS THE COURT DEEMS IN THE BEST
INTERESTS OF THE FARMER AND HIS CREDITORS."  DURING SUCH CONTROL THE
COURT IS FREE TO PERMIT AND TO FACILITATE PROCEEDINGS IN THE STATE
COURTS WHICH WOULD ADJUDICATE THE INTERESTS OF THE PARTIES IN THE
CONTRACT, SUBJECT TO THE STAY DIRECTED BY SEC. 75(O) OF ANY
CANCELLATION OF THE CONTRACT OR FORECLOSURE OF PETITIONER'S INTEREST IN
IT.  UTAH, BY SEC. 104-3-18 OF ITS REVISED STATUTES, HAS PROVIDED THAT
"ALL PERSONS HOLDING AS TENANTS IN COMMON OR AS JOINT TENANTS, OR ANY
NUMBER LESS THAN ALL, MAY JOINTLY OR SEVERALLY COMMENCE OR DEFEND ANY
CIVIL ACTION OR PROCEEDING FOR THE ENFORCEMENT OR PROTECTION OF THE
RIGHTS INVOLVED.  IN ALL CASES ONE TENANT IN COMMON OR JOINT TENANT CAN
SUE HIS CO-TENANT."  AND IT HAS ADOPTED THE UNIFORM DECLARATORY
JUDGMENTS ACT, UNDER WHICH RESPONDENT OR PETITIONERS, OR EITHER OF
THEM, ARE FREE TO PROCEED TO AN ADJUDICATION OF THEIR RIGHTS.  SECS.
104-64-1 ET SEQ., REVISED STATUTES OF UTAH, 1933.  WE PERCEIVE NO
INSURMOUNTABLE OBSTACLE, IF THE BANKRUPTCY COURT IS SO ADVISED, TO THE
EXERCISE OF ITS JURISDICTION SO AS TO PERMIT THE PARTIES TO ASCERTAIN
THEIR RESPECTIVE RIGHTS BY AN APPROPRIATE PROCEEDING IN THE STATE
COURTS.  SEE THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478, 483. 
WHILE SUCH PRACTICE IS TO BE REGARDED AS EXCEPTIONAL, THE CIRCUMSTANCES
WHICH HERE SUGGEST IT APPEAR TO BE EXCEPTIONAL.  IT MAY BE SUGGESTED
TOO THAT IF, PENDING THE PROCEEDINGS FOR ADJUSTMENT OR COMPOSITION WITH
CREDITORS, THE WIFE WERE TO RELEASE OR ASSIGN TO HER CO-TENANT HER
INTEREST IN THE CONTRACT, ALL BENEFICIAL INTEREST UNDER WHICH SHE HAS
FORFEITED, THE TECHNICAL DIFFICULTIES THOUGHT TO EXIST BY REASON OF HER
ABSENCE AS A PARTY FROM THE BANKRUPTCY PROCEEDINGS MIGHT BE REMOVED. 
WITH THE COURT'S JURISDICTION OVER THE DEBTOR'S INTEREST IN THE LAND
AND THE DUTY TO ADMINISTER IT ESTABLISHED, WE CANNOT SAY THAT THE
ACCOMMODATION WITH RESPONDENT AND OTHER CREDITORS WHICH THE STATUTE
CONTEMPLATES COULD NOT BE ARRIVED AT.  BUT, IN THE EVENT THAT NO
COMPOSITION IS EFFECTED, THE DEBTOR MAY ASK TO BE ADJUDICATED A
BANKRUPT, AID AS SUCH TO BE PLACED IN POSSESSION OF THE PROPERTY UNDER
THE PROVISIONS OF SEC. 75(S) UPON TERMS WHICH WILL ENABLE HIM, BY
PAYING A SUITABLE RENTAL, TO REDEEM THE PROPERTY UNLESS HE IS SOONER
ABLE TO FINANCE HIMSELF.  SEE JOHN HANCOCK INS. CO. V. BARTELS, SUPRA.
IF HIS INTEREST IS FOUND TO BE SUCH THAT IT IS IMPRACTICABLE TO PLACE
HIM IN POSSESSION OR OTHERWISE TO ADMINISTER THE PROPERTY AS PROVIDED
BY SEC. 75(S), HE IS ENTITLED TO PETITION THE COURT FOR LEAVE TO REDEEM
THE PROPERTY; AND, IF HE IS UNABLE TO REDEEM IT, A SALE OF HIS INTEREST
MAY BE ORDERED AS DIRECTED BY SEC. 75(S)(3).  WRIGHT V. UNION CENTRAL
INS. CO., SUPRA.  THE SALE OF THE INTEREST OF A CO-TENANT MAY BE
SEPARATELY EFFECTED IN A BANKRUPTCY PROCEEDING.  IN RE TOMS, 101 F.2D
617; IN RE BROWN, SUPRA, 273.  AND WE CANNOT SAY THAT A COURT
POSSESSING THE POWERS OF A COURT OF EQUITY COULD NOT IN THIS CASE
DIRECT A SALE ON CONDITIONS WHICH WOULD PROTECT THE RIGHTS OF THE
DEBTOR, RESPONDENT, AND THE PURCHASER. 

RESPONDENT MOVES TO DISMISS THE WRIT OF CERTIORARI BECAUSE, AFTER THE
JUDGMENT BELOW DENYING THE DISTRICT COURT'S JURISDICTION, PETITIONERS
PROCURED A RETURN OF RENTAL DEPOSITED BY THEM IN THE BANKRUPTCY COURT
AS AN INCIDENT TO PROCEEDINGS UNDER SEC. 75(S)(2).  IT IS ARGUED THAT
THIS ACTION IS SO INCONSISTENT WITH PETITIONERS' APPEAL AS TO ESTOP
THEM FROM FURTHER PROSECUTION OF IT.  THE ORDER, IF ANY, DIRECTING THE
DEPOSIT, AND THE ATTENDANT PROCEEDINGS DO NOT APPEAR IN THE RECORD. 
WHETHER THE WITHDRAWAL OF THE AMOUNT DEPOSITED IS SO INCONSISTENT WITH
FURTHER PROCEEDINGS FOR THE THREE-YEAR STAY AUTHORIZED BY SEC. 75(S)
UPON PAYMENT OF A PRESCRIBED RENTAL, OBVIOUSLY CANNOT BE DETERMINED ON
THIS RECORD, AND SHOULD, IN ANY CASE, BE DETERMINED IN THE FIRST
INSTANCE BY THE BANKRUPTCY COURT HAVING JURISDICTION OF THE CAUSE.  BUT
IT PLAINLY IS NOT INCONSISTENT WITH OTHER REMEDIES WHICH THE COURT HAS
JURISDICTION TO GIVE UNDER SEC. 75, OR WITH RECOURSE TO MEASURES WHICH
THE COURT MAY TAKE TO PERMIT AN ADJUDICATION OF THE RIGHTS OF THE
PARTIES, ON THE BASIS OF WHICH A COMPOSITION MAY BE EFFECTED.  IN ANY
CASE, SINCE DEPOSIT OF RENTAL IS NOT PREREQUISITE TO JURISDICTION,
PETITIONERS' RECALL AND RECEIPT OF MONEY, WHATEVER EFFECT IT MAY HAVE
HAD ON THEIR RIGHT TO THE THREE-YEAR STAY AUTHORIZED BY SEC. 75(S),
INVOLVED NO INCONSISTENCY WITH THE ASSERTION ON THIS APPEAL OF THE
COURT'S JURISDICTION TO RESOLVE THAT QUESTION AND TO TAKE OTHER
APPROPRIATE ACTION.  THE COURT'S AUTHORITY TO GIVE RELIEF UPON
COMPLIANCE WITH SUCH TERMS AS IT MAY PROPERLY IMPOSE, INCLUDING THE
PAYMENT OF RENTAL, EITHER BY MORATORIUM PENDING A COMPOSITION WITH
CREDITORS OR BY SALE AS THE STATUTE PROVIDES, REMAINS UNAFFECTED.  AT
LEAST IT HAS AUTHORITY UNDER SEC. 75(S) AND IS REQUIRED TO PERMIT
REDEMPTION OF THE PROPERTY BY THE DEBTOR BEFORE ORDERING A SALE. 
WRIGHT V. UNION CENTRAL INS. CO., SUPRA. 

WE ARE OF OPINION THAT THE BANKRUPTCY COURT HAS JURISDICTION OVER THE
DEBTOR'S INTEREST IN THE PROPERTY IN QUESTION, AND THAT IN ITS SOUND
DISCRETION IT SHOULD, IN EVERY PRACTICABLE WAY, EXERCISE THAT
JURISDICTION FOR THE PROTECTION OF THE INTEREST OF THE DEBTOR AS THE
STATUTE DIRECTS. 

THE JUDGMENT BELOW SHOULD BE REVERSED AND THE CAUSE REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  COMPARE BUSS V. PRUDENTIAL INS. CO., 126 F.2D 960; IN RE HARRIS,
15 F.SUPP.  304. 
..END :












ETTELSON V. METRO. INS. CO., 317 U.S. 188 


NO. 70.  ARGUED NOVEMBER 12, 13, 1942.  - DECIDED DECEMBER 7, 1942. 


1.  IN A CIVIL ACTION IN THE FEDERAL DISTRICT COURT AGAINST AN INSURER
TO RECOVER THE PROCEEDS OF POLICIES OF LIFE INSURANCE, WHEREIN THE
INSURER FILED A COUNTERCLAIM ALLEGING FRAUD BY THE INSURED IN THE
PROCUREMENT OF THE POLICIES AND PRAYING THEIR CANCELLATION AND THAT
FURTHER PROSECUTION OF THE ACTION BE ENJOINED, AN ORDER THAT THE ISSUE
RAISED BY THE COUNTERCLAIM SHALL BE HEARD AND DISPOSED OF BY THE COURT
PRIOR TO THE ISSUE RAISED BY THE COMPLAINT IS AN INTERLOCUTORY ORDER
GRANTING AN INJUNCTION, WITHIN THE MEANING OF JUDICIAL CODE SEC. 129,
AND IS APPEALABLE UNDER THAT SECTION.  P. 190. 

THE PROVISIONS OF RULE 1 OF THE RULES OF CIVIL PROCEDURE, THAT THE
OBJECT OF THE RULES IS "TO SECURE THE JUST, SPEEDY, AND INEXPENSIVE
DETERMINATION OF EVERY ACTION," AND OF RULE 2, THAT "THERE SHALL BE ONE
FORM OF ACTION TO BE KNOWN AS 'CIVIL ACTION,'" DO NOT REQUIRE A
DIFFERENT RESULT. 

2.  LOCAL LAW HAS NO BEARING ON THE QUESTION HERE DETERMINED.  P.
191. 

3.  THE APPLICABILITY OF JUD.  CODE SEC. 129 IS DETERMINED NOT BY THE
TERMINOLOGY OF THE ORDER BUT BY ITS SUBSTANTIAL EFFECT.  P. 192. 

ETTELSON ET AL. V. METROPOLITAN LIFE INSURANCE CO. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS UPON AN APPEAL TO THAT
COURT FROM AN INTERLOCUTORY ORDER OF THE DISTRICT COURT, 42 F.SUPP. 
488.  THE SUIT, TO RECOVER UPON POLICIES OF LIFE INSURANCE, WAS BEGUN
IN A STATE COURT BUT WAS REMOVED BY THE DEFENDANT TO THE FEDERAL
COURT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS HAS CERTIFIED THE FOLLOWING QUESTION: 

"IN A CIVIL ACTION IN A DISTRICT COURT UPON A CLAIM OF A CHARACTER
FORMERLY COGNIZABLE AT LAW IN WHICH THE DEFENDANT HAS FILED A
COUNTERCLAIM OF A CHARACTER FORMERLY COGNIZABLE IN EQUITY (OR IN AN
ACTION AT LAW UNDER THE PROVISIONS OF SECTION 274B  FN1  OF THE
JUDICIAL CODE), IS AN ORDER THAT THE ISSUE RAISED BY THE COUNTERCLAIM
SHALL BE HEARD AND DISPOSED OF BY THE COURT PRIOR TO THE ISSUE RAISED
BY THE COMPLAINT AN ORDER GRANTING AN INJUNCTION WITHIN THE MEANING OF
THAT SECTION?" 

FROM THE CERTIFICATE IT APPEARS THAT THE QUESTION ARISES UPON THESE
FACTS:  THE PLAINTIFFS FILED, IN A NEW JERSEY STATE COURT, A COMPLAINT
IN FIVE COUNTS TO RECOVER AMOUNTS ALLEGED TO BE DUE PLAINTIFFS BY THE
DEFENDANT ON LIFE INSURANCE POLICIES ISSUED BY IT UPON THE LIFE OF
RICHARD ETTELSON, DECEASED.  THE CAUSE WAS REMOVED TO THE UNITED STATES
DISTRICT COURT FOR NEW JERSEY.  PLAINTIFFS DEMANDED A JURY TRIAL.  THE
DEFENDANT FILED AN ANSWER IN THE DISTRICT COURT SETTING UP THAT THE
POLICIES WERE OBTAINED BY THE FRAUD OF THE INSURED AND ARE VOID BECAUSE
OF MATERIAL FALSE STATEMENTS MADE BY THE INSURED IN THE APPLICATION FOR
THE POLICIES.  THE ANSWER DID NOT ALLEGE THAT THE FALSE STATEMENTS WERE
KNOWINGLY AND INTENTIONALLY MADE. 

WITH THE ANSWER, THE DEFENDANT FILED A COUNTERCLAIM ALLEGING THAT THE
POLICIES WERE OBTAINED BY THE FRAUD OF THE INSURED AND ARE VOID BECAUSE
OF THE MATERIAL FALSE STATEMENTS MADE BY HIM IN THE APPLICATION; AND
PRAYED THAT THE POLICIES BE DECREED VOID UPON THE RETURN BY THE
DEFENDANT OF THE PREMIUMS PAID THEREON, AND THAT THE PLAINTIFFS BE
ENJOINED FROM FURTHER PROSECUTING THE ACTION AT LAW.  THE PLAINTIFFS
MOVED FOR DISMISSAL OF THE COUNTERCLAIM ON THE GROUND THAT THE
DEFENDANT HAS AN ADEQUATE REMEDY AT LAW ON THE LAW SIDE OF THE COURT IN
THE PENDING ACTION IN WHICH ISSUE HAS BEEN JOINED; AND FURTHER THAT THE
COUNTERCLAIM FAILS TO STATE A CLAIM UPON WHICH EQUITABLE RELIEF CAN OR
SHOULD BE GRANTED BY THE COURT. 

THE DISTRICT COURT DENIED THE MOTION TO DISMISS AND ORDERED THAT THE
COUNTERCLAIM SHOULD BE HEARD AND DISPOSED OF BY THE COURT SITTING IN
EQUITY PRIOR TO TRIAL OF THE ISSUE MADE BY THE COMPLAINT AND ANSWER IN
THE ACTION AT LAW.  42 F.SUPP.  488.  THE PLAINTIFFS THEREUPON APPEALED
TO THE CIRCUIT COURT OF APPEALS; AND THE DEFENDANT MOVED THAT COURT TO
DISMISS THE APPEAL, IN THE VIEW THAT THE DISTRICT COURT'S ORDER IS NOT
APPEALABLE. 

THE PARTIES AGREE THAT, IF THE QUESTION HAD ARISEN PRIOR TO THE
ADOPTION OF THE RULES OF CIVIL PROCEDURE,  FN3  OUR DECISION IN ENELOW
V. NEW YORK LIFE INS. CO., 293 U.S. 379, WOULD REQUIRE AN AFFIRMATIVE
ANSWER TO THE QUESTION.  THE DEFENDANT ASSERTS, AND THE PLAINTIFFS
DENY, THAT THE RULES REQUIRE A NEGATIVE ANSWER.  THE DEFENDANT POINTS
TO RULE 1, WHICH STATES THAT THE OBJECT OF THE RULES IS "TO SECURE THE
JUST, SPEEDY, AND INEXPENSIVE DETERMINATION OF EVERY ACTION"; AND MORE
PARTICULARLY TO RULE 2, WHICH DECLARES THAT "THERE SHALL BE ONE FORM OF
ACTION TO BE KNOWN AS 'CIVIL ACTION.'" 

THE DEFENDANT'S CONTENTION, IN BRIEF, IS THAT WHEREAS, WHEN THE
ENELOW CASE WAS DECIDED, THE DISTINCTION BETWEEN ACTIONS AT LAW AND
SUITS IN EQUITY IN FEDERAL COURTS STILL PERSISTED, THIS DISTINCTION HAS
NOW BEEN ABOLISHED; THAT EQUITABLE DEFENSES, WHETHER A BAR TO
PLAINTIFFS' RECOVERY AT LAW OR THE BASIS OF AFFIRMATIVE RELIEF AGAINST
THE PLAINTIFFS, ARE PART AND PARCEL OF THE SINGLE ACTION INITIATED BY
THE PLAINTIFFS AND THAT ANY DIRECTION BY THE COURT RESPECTING THE ORDER
IN WHICH THE CLAIM AND THE COUNTERCLAIM ARE TO BE HEARD IS
INTERLOCUTORY, AMOUNTING, AT MOST, TO A STAY OF THE TRIAL OF ONE BRANCH
OF THE LITIGATION, AND IN NO SENSE AN INJUNCTION AGAINST THE
PLAINTIFFS.  WE CANNOT AGREE. 

AT THE ARGUMENT OF THE CAUSE MUCH TIME WAS DEVOTED TO THE APPLICABLE
LAW OF NEW JERSEY, WHERE THE ACTION ORIGINATED.  IT WAS URGED THAT,
UNDER THAT LAW, UPON ALLEGATION AND PROOF OF INNOCENT
MISREPRESENTATIONS INDUCING THE ISSUE OF A POLICY, AN INSURER IS
ENTITLED TO A DECREE CANCELLING THE POLICY AND RESTRAINING ANY ACTION
AT LAW UPON IT.  IT WAS URGED THAT THIS FEATURE OF THE LOCAL LAW MUST
BE CONSIDERED IN DETERMINING THE APPEALABILITY OF THE DISTRICT COURT'S
ORDER.  BUT, WHATEVER EFFECT SHOULD BE GIVEN THE NEW JERSEY LAW IN
DETERMINING THE CORRECTNESS OF THE DISTRICT JUDGE'S ACTION, THE LOCAL
LAW HAS NO BEARING UPON THE DECISION OF THE NARROW QUESTION CERTIFIED. 

AS IN THE ENELOW CASE, SO HERE, THE RESULT OF THE DISTRICT JUDGE'S
ORDER IS THE POSTPONEMENT OF TRIAL OF THE JURY ACTION BASED UPON THE
POLICIES; AND IT MAY, IN PRACTICAL EFFECT, TERMINATE THAT ACTION.  IT
IS AS EFFECTIVE IN THESE RESPECTS AS AN INJUNCTION ISSUED BY A
CHANCELLOR.  IF THE ORDER BE FOUND TO BE ERRONEOUS, IT WILL HAVE TO BE
SET ASIDE AND THE PLAINTIFFS PERMITTED TO PURSUE THEIR ACTION TO
JUDGMENT.  THE PLAINTIFFS ARE, THEREFORE, IN THE PRESENT INSTANCE, IN
NO DIFFERENT POSITION THAN IF A STATE EQUITY COURT HAD RESTRAINED THEM
FROM PROCEEDING IN THE LAW ACTION.  NOR ARE THEY DIFFERENTLY
CIRCUMSTANCED THAN WAS THE PLAINTIFF IN THE ENELOW CASE.  THE RELIEF
AFFORDED BY SEC. 129 IS NOT RESTRICTED BY THE TERMINOLOGY USED.  THE
STATUTE LOOKS TO THE SUBSTANTIAL EFFECT OF THE ORDER MADE.  ENELOW V.
NEW YORK LIFE INS. CO., SUPRA, P. 383.  COMPARE GENERAL ELECTRIC CO. V.
MARVEL RARE METALS CO., 287 U.S. 430, 432; SHANFEROKE COAL & SUPPLY
CORP. V. WESTCHESTER SERVICE CORP., 293 U.S. 449, 451; GRIESA V. MUTUAL
LIFE INS. CO., 165 F. 48, 49. 

QUESTION ANSWERED "YES." 

FN1  28 U.S.C. SEC. 398. 

FN2  28 U.S.C. SEC. 227. 

FN3  308 U.S. 653; 28 U.S.C. 723C. 
..END :






















MILLER V. UNITED STATES, 317 U.S. 192 


NO. 76.  ARGUED NOVEMBER 18, 1942.  - DECIDED DECEMBER 7, 1942.  - 123
F.2D 715, REVERSED. 


1.  THE IN FORMA PAUPERIS STATUTE (ACT OF JULY 20, 1892, AS AMENDED)
DOES NOT ENTITLE AN INDIGENT DEFENDANT IN A CRIMINAL CASE TO BE
FURNISHED A VERBATIM TRANSCRIPT OF THE EVIDENCE AT PUBLIC EXPENSE.  P.
197. 

2.  A VERBATIM TRANSCRIPT OF ALL THE EVIDENCE IS NOT NECESSARY FOR
THE PREPARATION OF A BILL OF EXCEPTIONS; THE BILL MAY BE PREPARED FROM
THE JUDGE'S OR COUNSEL'S NOTES, OR FROM THE RECOLLECTION OF WITNESSES
AS TO WHAT OCCURRED AT THE TRIAL, OR, IN SHORT, FROM ANY AND ALL
SOURCES WHICH WILL CONTRIBUTE TO A VERACIOUS ACCOUNT OF THE TRIAL
JUDGE'S ACTION AND THE BASIS OF HIS RULING.  P. 198. 

3.  UPON A PETITION TO THE CIRCUIT COURT OF APPEALS FOR REHEARING OF
ITS AFFIRMANCE, ON AN APPEAL IN FORMA PAUPERIS, OF A CONVICTION IN A
CRIMINAL CASE, IT APPEARED THAT THE PETITIONER'S CONTENTION THAT THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE VERDICT HAD NOT BEEN PROPERLY
PRESENTED BECAUSE OF HIS COUNSEL'S BELIEF THAT A TRANSCRIPT OF THE
EVIDENCE (WHICH THE PETITIONER WAS WITHOUT FUNDS TO OBTAIN) WAS
NECESSARY FOR THE PREPARATION OF A BILL OF EXCEPTIONS COVERING THE
POINT.  HELD, THAT, IN THE CIRCUMSTANCES, THE CIRCUIT COURT OF APPEALS
HAD POWER, UNDER RULE 4 OF THE CRIMINAL APPEALS RULES, TO REMAND THE
CAUSE TO THE DISTRICT COURT FOR THE SETTLEMENT OF A PROPER BILL OF
EXCEPTIONS.  P. 199. 

4. THE CAUSE IS REMANDED TO THE CIRCUIT COURT OF APPEALS FOR ENTRY OF
AN ORDER PERMITTING SETTLEMENT IN THE DISTRICT COURT OF A BILL OF
EXCEPTIONS PRESENTING THE POINT URGED BY THE PETITIONER.  THEREUPON, IT
WILL BE THE DUTY OF COUNSEL FOR THE PETITIONER TO SUBMIT A BILL OF
EXCEPTIONS MADE UP FROM THE BEST SOURCES AVAILABLE; AND IT WILL THEN BE
THE DUTY OF THE DISTRICT JUDGE TO ASSIST IN AMPLIFYING, CORRECTING AND
PERFECTING THE BILL, AND TO SETTLE THE SAME IN ORDER TO PRESENT THE
EVIDENCE GIVEN AT THE TRIAL.  P. 199. 

MILLER V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 316 U.S. 658, TO REVIEW THE AFFIRMANCE OF A CONVICTION OF
KIDNAPPING IN VIOLATION OF 18 U.S.C. SEC. 408A.  FOR OTHER OPINIONS OF
THE COURT BELOW IN THIS CASE, SEE 124 F.2D 849, 126 F.2D 462. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS IMPORTANT QUESTIONS IN RESPECT OF CRIMINAL
PROCEEDINGS AGAINST POOR PERSONS IN FEDERAL COURTS.  FOR THIS REASON WE
GRANTED CERTIORARI. 

THE PETITIONER WAS INDICTED, TRIED, AND CONVICTED IN THE UNITED
STATES DISTRICT COURT FOR WESTERN ARKANSAS FOR KIDNAPPING IN VIOLATION
OF TITLE 18 U.S.C. SEC. 408A.  AS HE WAS WITHOUT FUNDS TO CONDUCT HIS
DEFENSE, THE COURT APPOINTED COUNSEL FOR HIM.  THE PERSON CHARGED TO
HAVE BEEN KIDNAPPED WAS THE ILLEGITIMATE DAUGHTER OF PETITIONER'S
WIFE. 

TWO DEFENSES WERE PRESENTED.  THE FIRST WAS THAT THE PETITIONER CAME
WITHIN THE EXCEPTION STATED IN THE STATUTE, THAT IT SHALL NOT APPLY TO
A KIDNAPPING "IN THE CASE OF A MINOR, BY A PARENT THEREOF."  TO SUSTAIN
THIS DEFENSE, PETITIONER OFFERED EVIDENCE TO PROVE THAT THE GIRL WAS A
MINOR AND THAT, HAVING MARRIED HER MOTHER, HE STOOD IN THE RELATION OF
A PARENT TO HER.  THE SECOND DEFENSE WAS THAT THE PETITIONER HAD
NEITHER TAKEN NOR DETAINED THE YOUNG WOMAN AGAINST HER WILL.  THE
DISTRICT JUDGE RULED AGAINST THE PETITIONER'S CONTENTION THAT HE WAS A
PARENT WITHIN THE INTENDMENT OF THE STATUTE, BUT SENT THE CASE TO THE
JURY ON THE QUESTION WHETHER HE HAD APPREHENDED OR DETAINED HIS WIFE'S
DAUGHTER AGAINST HER WILL.  THE JURY RENDERED A VERDICT OF GUILTY. 
JUDGMENT OF SENTENCE WAS ENTERED. 

IN DUE TIME, PETITIONERS COUNSEL FILED NOTICE OF APPEAL IN WHICH,
AMONGST OTHERS, REASONS ADVANCED WERE THAT THE COURT ERRED IN REFUSING
PEREMPTORY INSTRUCTIONS FOR ACQUITTAL AT THE CONCLUSION OF THE
GOVERNMENT'S CASE AND AT THE CONCLUSION OF ALL THE EVIDENCE; THAT THE
VERDICT OF THE JURY WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE; AND
THAT THE COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT, IF THEY
FOUND THE COMPLAINING WITNESS WAS UNDER THE AGE OF EIGHTEEN YEARS AT
THE TIME OF THE KIDNAPPING THEY MUST FIND THE PETITIONER NOT GUILTY. 

THE DISTRICT COURT ENTERED AN ORDER PERMITTING THE PETITIONER TO
APPEAL IN FORMA PAUPERIS, AND THE CIRCUIT COURT OF APPEALS ALSO
PERMITTED THE PROSECUTION OF THE PROCEEDINGS IN THAT COURT IN FORMA
PAUPERIS. 

IN CONNECTION WITH THE APPEAL, ERRORS WERE SPECIFICALLY ASSIGNED TO
THE RULING OF THE DISTRICT COURT RESPECTING THE STATUS OF THE
PETITIONER AS A PARENT, BUT NO ERROR WAS SO ASSIGNED TO THE ACTION OF
THE COURT IN SUBMITTING THE FACT QUESTIONS RESPECTING THE ALLEGED
APPREHENSION AND DETENTION OF THE COMPLAINING WITNESS, ALTHOUGH THE
ASSIGNMENTS OF ERROR CONCLUDED WITH A PRAYER FOR A REVERSAL FOR "OTHER
MANIFEST ERRORS IN THE RECORD AND PROCEEDINGS."  THE BILL OF EXCEPTIONS
ALLOWED BY THE DISTRICT COURT SET FORTH ONLY SO MUCH OF THE PROCEEDINGS
AS WENT TO THE QUESTION OF PETITIONER'S ASSERTED PARENTHOOD OF THE
ALLEGED MINOR.  IT ALSO INCLUDED THE PROCEEDINGS ON MOTIONS FOR
DIRECTED VERDICT AND THE ACTION OF THE COURT UPON THOSE MOTIONS, BUT
NONE OF THE EVIDENCE ON WHICH THE MOTIONS WERE BASED. 

THE CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT AND, IN SO DOING,
DEALT ONLY WITH THE QUESTION OF THE PETITIONER'S PARENTHOOD.  FN1  AT
THE CLOSE OF ITS OPINION IT STATED:  "NO OTHER QUESTION HAVING BEEN
RAISED ON THIS APPEAL, IT FOLLOWS THAT THE JUDGMENT MUST BE AND IS
AFFIRMED." 

THE PETITIONER ENTERED UPON SERVICE OF HIS SENTENCE AND, BEING
WITHOUT COUNSEL, PERSONALLY FORWARDED TO THE CIRCUIT COURT OF APPEALS A
PETITION FOR THE APPOINTMENT OF COUNSEL AND A PETITION FOR REHEARING. 
IN THE LATTER, HE URGED THAT THERE WAS NO TESTIMONY IN THE RECORD
INDICATING THAT HE TOOK OR DETAINED HIS WIFE'S DAUGHTER AGAINST HER
WILL, AND PRAYED THAT THE CIRCUIT COURT OF APPEALS ISSUE A WRIT OF
CERTIORARI TO BRING UP A COMPLETE TRANSCRIPT OF THE TESTIMONY TAKEN AT
HIS TRIAL.  IN A PER CURIAM OPINION,  FN2  THE COURT STATED THAT IT HAD
DECIDED THE ONLY QUESTION BEFORE IT, BUT ORDERED THAT THE UNITED STATES
ATTORNEY ANSWER THE PETITION SO THAT IT MIGHT BE ASCERTAINED WHETHER A
BILL OF EXCEPTIONS COULD BE PREPARED TO RAISE THE QUESTIONS WHICH THE
PETITIONER DESIRED TO HAVE DECIDED.  THE PROSECUTING OFFICER ANSWERED
ALLEGING THAT THE ENTIRE TESTIMONY IN THE CASE HAD BEEN TAKEN
STENOGRAPHICALLY BY THE DISTRICT JUDGE'S SECRETARY, WHOSE NOTES WERE
AVAILABLE AND COULD BE TRANSCRIBED.  THE ANSWER FURTHER SET FORTH THAT
THE JUDGE'S SECRETARY HAD IMPORTANT DUTIES TO PERFORM; THAT THE
TESTIMONY WHICH HE TOOK STENOGRAPHICALLY WAS OF LARGE VOLUME; THAT ITS
TRANSCRIPTION WOULD INVOLVE LABOR FOR WHICH HE OUGHT TO BE PAID; AND
THAT THE GOVERNMENT COULD NOT BE REQUIRED TO PAY FOR A TRANSCRIPT OF
THE EVIDENCE OR TO FURNISH SUCH A TRANSCRIPT TO THE DEFENDANT. 

TO THIS ANSWER, THE PETITIONER FILED A RESPONSE IN WHICH, AMONGST
OTHER THINGS, HE ALLEGED THAT HE HAD REPEATEDLY URGED HIS ATTORNEY TO
PRESENT TO THE CIRCUIT COURT OF APPEALS THE QUESTION OF THE SUFFICIENCY
OF THE EVIDENCE TO SUSTAIN HIS CONVICTION, AND THAT HIS ATTORNEY HAD
INVARIABLY REPLIED THAT THIS COULD NOT BE DONE WITHOUT OBTAINING A
TRANSCRIPT OF THE EVIDENCE SO AS TO MAKE A PROPER BILL OF EXCEPTIONS
COVERING THE SUBJECT; THAT THE ATTORNEY FURTHER ADVISED HIM THAT A
TRANSCRIPT OF THE TESTIMONY COULD NOT BE PROCURED BECAUSE THE
PETITIONER HAD NO FUNDS TO PAY FOR ITS PREPARATION.  IT STANDS ADMITTED
ON THE RECORD THAT THESE ARE THE FACTS. 

THE CIRCUIT COURT OF APPEALS, IN A THIRD OPINION,  FN3  STATED THAT
IT HAD REQUESTED A RESPONSE TO THE PETITION FOR REHEARING IN ORDER TO
ASCERTAIN WHETHER THE GOVERNMENT, AS IN HOLMES V. UNITED STATES, 314
U.S. 583, WOULD CONSENT TO THE VACATION OF THE JUDGMENT SO THAT A
PROPER RECORD MIGHT BE MADE AS THE BASIS FOR CONSIDERATION OF THE
QUESTION URGED BY THE PETITIONER.  THE COURT STATED THAT, IN VIEW OF
THE GOVERNMENT'S OPPOSITION TO A VACATION OF THE JUDGMENT OR A
REOPENING OF THE CASE, IT FELT ITSELF WITHOUT POWER TO ACT FURTHER IN
THE MATTER, AND INDICATED THAT IF THE PETITIONER DESIRED TO BRING THE
CAUSE TO THIS COURT SUCH FACILITIES SHOULD BE FURNISHED HIM AS WERE
NECESSARY TO THAT END WITHOUT THE OBLIGATION TO PAY FEES OR COSTS. 

THE PETITIONER PRESENTED TO THIS COURT A PETITION FOR CERTIORARI AND
A PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS.  WE GRANTED THE WRIT
AND GAVE LEAVE TO PROCEED IN FORMA PAUPERIS.  AS HE WAS WITHOUT
COUNSEL, WE APPOINTED COUNSEL TO ACT FOR HIM IN THIS COURT. 

1.  THERE IS NO LAW OF THE UNITED STATES CREATING THE POSITION OF
OFFICIAL COURT STENOGRAPHER AND NONE REQUIRING THE STENOGRAPHIC REPORT
OF ANY CASE, CIVIL OR CRIMINAL, AND THERE IS NONE PROVIDING FOR PAYMENT
FOR THE SERVICES OF A STENOGRAPHER IN REPORTING JUDICIAL PROCEEDINGS. 
THE PRACTICE HAS BEEN FOR THE PARTIES TO AGREE THAT A DESIGNATED PERSON
SHALL SO REPORT.  THE ONE SELECTED MUST BE PAID BY PRIVATE ARRANGEMENT
WITH ONE OR MORE OF THE PARTIES TO THE LITIGATION.  THE AMOUNT PAID TO
HIM IS NOT COSTS IN THE CAUSE NOR TAXABLE AS SUCH AGAINST ANY OF THE
PARTIES. 

2.  AT THE INSTANCE OF THE CONFERENCE OF SENIOR CIRCUIT JUDGES,
LEGISLATION HAS BEEN INTRODUCED IN CONGRESS TO PROVIDE AN OFFICIAL
SYSTEM OF REPORTING AND TO DEFRAY THE COST OF IT.  THAT LEGISLATION, AS
WE UNDERSTAND, WILL, IF ADOPTED, OBVIATE THE DIFFICULTIES PRESENTED IN
THIS CASE.  AS THE MATTER STANDS, HOWEVER, IT IS CLEAR THAT THE JUDGE'S
SECRETARY WHO STENOGRAPHICALLY REPORTED THE TRIAL IS NOT AN OFFICER OF
THE UNITED STATES IN HIS CAPACITY AS REPORTER, IS NOT ENTITLED TO FEES
FROM THE UNITED STATES FOR HIS SERVICES, AND HIS COMPENSATION CANNOT BE
TREATED AS COSTS.  THE ACT OF JULY 20, 1892, AS AMENDED,  FN4  APPLIES
ONLY TO COURT COSTS, PERMITS THE TAKING OF AN APPEAL WITHOUT PREPAYMENT
OF COST OF PRINTING THE RECORD IN THE APPELLATE COURT, AND PROVIDES IN
CERTAIN CASES FOR THE PRINTING OF THAT RECORD AT GOVERNMENT EXPENSE. 
IT DOES NOT AUTHORIZE THE PROCUREMENT OF A TRANSCRIPT OF THE TESTIMONY
NOR THE PAYMENT FOR SERVICES IN REPORTING EVIDENCE TAKEN AT THE TRIAL
NOR FOR THE OBTAINING OF IT BY THE GOVERNMENT IN BEHALF OF AN INDIGENT
DEFENDANT. 

3.  IT IS URGED BY THE PETITIONER THAT THE DISTRICT COURT HAS
INHERENT POWER, IN THE INTERESTS OF JUSTICE, TO ORDER PREPARATION OF A
TRANSCRIPT FOR THE PETITIONER'S USE IN MAKING UP A BILL OF EXCEPTIONS
AND TO IMPOSE THE EXPENSE OF SO DOING UPON THE GOVERNMENT.  THE
RESPONDENT POINTS OUT THAT THE COMPTROLLER GENERAL HAS RULED THAT THERE
IS NO APPROPRIATION FROM WHICH SUCH EXPENSE MAY BE PAID  FN5  AND,
WHETHER HE IS OR IS NOT RIGHT, IT REMAINS THAT NO APPROPRIATION IS
AVAILABLE WITHOUT AUTHORIZATION OF PAYMENT BY THE ATTORNEY GENERAL. 
THAT OFFICER APPEARS UNWILLING TO TEST THE MATTER BY MAKING SUCH
AUTHORIZATION.  WE NEED NOT STOP TO CONSIDER THESE OPPOSING VIEWS
BECAUSE OF THE FACTS DEVELOPED IN THE BRIEFS AND IN ARGUMENT. 

4.  AS WE HAVE SAID, THE TRIAL JUDGE'S SECRETARY TOOK STENOGRAPHIC
NOTES OF THE ENTIRE TESTIMONY AND HIS NOTES ARE AVAILABLE.  IT WAS
STATED AT THE BAR THAT THIS GENTLEMAN STANDS READY TO READ HIS NOTES
INTO A DICTAPHONE WITHOUT CHARGE TO THE PETITIONER.  IN THE LIGHT OF
THESE FACTS IT WOULD SEEM THAT IT IS POSSIBLE TO PREPARE AN ADEQUATE
BILL OF EXCEPTIONS FAIRLY REFLECTING THE PURPORT OF THE TESTIMONY. 

IT HAS BECOME THE USUAL, BECAUSE THE MORE CONVENIENT, METHOD TO
PREPARE A BILL OF EXCEPTIONS BY THE USE OF A STENOGRAPHIC TRANSCRIPT OF
THE EVIDENCE.  EVEN SO, THE BILL OUGHT NOT TO CONTAIN ALL OF THE
EVIDENCE BUT ONLY THAT WHICH IS RELEVANT TO THE ISSUES MADE UPON THE
APPEAL, AND OFTEN IT IS EXPEDIENT AND SATISFACTORY TO SUMMARIZE THE
EVIDENCE AND TRANSMUTE IT INTO NARRATIVE FORM.  HISTORICALLY A BILL OF
EXCEPTIONS DOES NOT EMBODY A VERBATIM TRANSCRIPT OF THE EVIDENCE BUT,
ON THE CONTRARY, A STATEMENT WITH RESPECT TO THE EVIDENCE ADEQUATE TO
PRESENT THE CONTENTIONS MADE IN THE APPELLATE COURT.  SUCH A BILL MAY
BE PREPARED FROM NOTES KEPT BY COUNSEL, FROM THE JUDGE'S NOTES, FROM
THE RECOLLECTION OF WITNESSES AS TO WHAT OCCURRED AT THE TRIAL, AND, IN
SHORT, FROM ANY AND ALL SOURCES WHICH WILL CONTRIBUTE TO A VERACIOUS
ACCOUNT OF THE TRIAL JUDGE'S ACTION AND THE BASIS ON WHICH HIS RULING
WAS INVOKED. 

COUNSEL IN THIS CASE COULD, THEREFORE, HAVE PREPARED AND PRESENTED TO
THE TRIAL JUDGE, AS WAS HIS DUTY, A BILL OF EXCEPTIONS SO PREPARED, AND
IT WOULD THEN HAVE BECOME THE DUTY OF THE TRIAL JUDGE TO APPROVE IT, IF
ACCURATE, OR, IF NOT, TO ASSIST IN MAKING IT ACCURATELY REFLECT THE
TRIAL PROCEEDINGS.  WE ARE UNWILLING TO HOLD THAT THE PETITIONER IS
FORECLOSED FROM OBTAINING A BILL IN THE CIRCUMSTANCES OF THIS CASE. 
PETITIONER REPEATEDLY INSISTED THAT COUNSEL PROCURE A PROPER RECORD ON
APPEAL TO PRESENT THE QUESTION OF THE SUFFICIENCY OF THE EVIDENCE TO
SUSTAIN HIS CONVICTION.  THE PETITIONER DID EVERYTHING THAT LAY WITHIN
HIS POWER TO OBTAIN SUCH A PROPER RECORD, AND WE THINK HE SHOULD NOT BE
PENALIZED FOR THE FAILURE OF HIS APPOINTED COUNSEL TO TAKE THE
NECESSARY MEASURES, IF THE POWER EXISTS TO AFFORD HIM A HEARING ON THE
POINT HE DEEMS MATERIAL. 

5.  WE ARE OF OPINION THAT THE CIRCUIT COURT OF APPEALS HAD POWER IN
THE CIRCUMSTANCES TO REMAND THE CAUSE FOR THE SETTLEMENT OF A PROPER
BILL OF EXCEPTIONS.  RULE 4 OF THE CRIMINAL APPEALS RULES FN6  PROVIDES
THAT, AFTER THE FILING OF THE NOTICE OF APPEAL, THE APPELLATE COURT
SHALL HAVE SUPERVISION OF THE PROCEEDINGS ON APPEAL, INCLUDING THE
PROCEEDINGS RELATING TO THE PREPARATION OF THE RECORD ON APPEAL, AND
THAT IT MAY ENTERTAIN A MOTION FOR DIRECTIONS TO THE TRIAL COURT.  THIS
POWER EXTENDS TO THE PROCUREMENT OF A PROPER BILL OF EXCEPTIONS  FN7
AND OUGHT TO BE LIBERALLY EXERCISED WHERE THE CONTENTION IS THAT THE
EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT.  FN8 

WE THINK THE RIGHT COURSE IN THIS INSTANCE IS TO REMAND THE CAUSE TO
THE CIRCUIT COURT OF APPEALS IN ORDER THAT IT MAY ENTER AN ORDER
PERMITTING THE SETTLEMENT OF A BILL OF EXCEPTIONS IN THE DISTRICT COURT
TO PRESENT THE POINT URGED BY PETITIONER.  UPON THE ENTRY OF SUCH AN
ORDER IT WILL BE THE DUTY OF COUNSEL FOR PETITIONER TO PRESENT A BILL
MADE UP FROM THE BEST SOURCES AVAILABLE.  IT WILL THEN BECOME THE DUTY
OF THE DISTRICT JUDGE TO ASSIST IN AMPLIFYING, CORRECTING, AND
PERFECTING THIS BILL FROM SUCH SOURCES, AND TO SETTLE THE SAME IN ORDER
TO PRESENT THE EVIDENCE GIVEN AT THE TRIAL.  FROM SUCH A BILL THE
CIRCUIT COURT OF APPEALS WILL NO DOUBT BE ABLE TO DECIDE WHETHER THERE
WAS EVIDENCE TO SUSTAIN PETITIONER'S CONVICTION.  SO ORDERED. 

FN1  123 F.2D 715. 

FN2  124 F.2D 849. 

FN3  126 F.2D 462. 

FN4  28 U.S.C. SEC. 832. 

FN5  9 COMP. GEN. 503; CF. 21 COMP. GEN. 347. 

FN6  18 U.S.C.A. SEC. 688FF. 

FN7 RAY V. UNITED STATES, 301 U.S. 158, 164, 167; HOLMES V. UNITED
STATES, 314 U.S. 583. 

FN8  HEMPHILL V. UNITED STATES, 312 U.S. 657. 
..END :



U.S. V. WAYNE PUMP CO., 317 U.S. 200 


NOS. 81 AND 82.  ARGUED NOVEMBER 16, 1942.  - DECIDED DECEMBER 7, 1942. 
- 44 F.SUPP.  949, APPEALS DISMISSED. 


1.  THE DECISION OF THE DISTRICT COURT IN THESE CASES, SUSTAINING
DEMURRERS TO INDICTMENTS FOR VIOLATIONS OF THE SHERMAN ACT, WAS BASED
NOT ONLY ON THE CONSTRUCTION OF THE STATUTE BUT ALSO ON THE INDEPENDENT
GROUND OF THE INSUFFICIENCY OF THE INDICTMENTS AS PLEADINGS, AND
THEREFORE WAS NOT APPEALABLE DIRECTLY TO THIS COURT UNDER THE CRIMINAL
APPEALS ACT.  P. 207. 

2.  THE AMENDMENT BY ACT OF MAY 9, 1942, OF THE CRIMINAL APPEALS ACT,
WHICH FOR THE FIRST TIME PERMITS APPEALS TO THE CIRCUIT COURTS OF
APPEALS FROM ORDERS SUSTAINING DEMURRERS TO INDICTMENTS IN CASES NOT
DIRECTLY APPEALABLE TO THIS COURT, AND WHICH DIRECTS THAT SUCH APPEALS,
WHEN ERRONEOUSLY TAKEN TO THIS COURT, SHALL BE REMANDED TO THE CIRCUIT
COURT OF APPEALS, IS NOT RETROSPECTIVE IN OPERATION AND IS INAPPLICABLE
TO APPEALS FOR WHICH, WHEN TAKEN, THERE WAS NO STATUTORY AUTHORITY.  P.
209. 

UNITED STATES V. WAYNE PUMP CO. ET AL. 

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEALS FROM JUDGMENTS OF THE DISTRICT COURT IN TWO CASES, HEARD
TOGETHER, SUSTAINING DEMURRERS TO INDICTMENTS FOR VIOLATIONS OF THE
SHERMAN ANTITRUST ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION APPEALS FROM ORDERS SUSTAINING DEMURRERS TO
INDICTMENTS FOR VIOLATIONS OF THE SHERMAN ACT.  THE INDICTMENT IN NO.
81 CHARGES THE DEFENDANTS, MANUFACTURERS OF GASOLINE PUMPS, A
MANUFACTURER OF GASOLINE COMPUTING MECHANISMS AND A GASOLINE PUMP
MANUFACTURING ASSOCIATION, AND CERTAIN OF THEIR OFFICERS, WITH
CONSPIRACY, EXTENDING FROM 1932 TO THE DATE OF THE INDICTMENT, JANUARY
31, 1941, TO FIX THE PRICES OF COMPUTER PUMPS IN INTERSTATE TRADE AND
COMMERCE, IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT.  COMPUTER PUMPS
ARE GASOLINE PUMPS EMBODYING A MECHANISM WHICH CALCULATES, MEASURES,
DISPLAYS AND RECORDS THE QUANTITIES AND PRICES OF GASOLINE PASSING
THROUGH THE PUMPS TO THE PURCHASERS.  IN NO. 82 THE DEFENDANTS ARE THE
SAME EXCEPT THAT THE ASSOCIATION AND ITS OFFICER ARE OMITTED.  THIS
LATTER INDICTMENT VARIES FROM THE FORMER IN THAT IN TWO COUNTS IT
CHARGES A CONSPIRACY TO MONOPOLIZE THE MANUFACTURE AND SALE OF COMPUTER
PUMPS AND COMPUTING MECHANISMS IN VIOLATION OF SEC. 2 OF THE SHERMAN
ACT.  FN1 

THE FACTS ALLEGED TO SUPPORT THE CHARGE IN THE COUNT FOR PRICE-FIXING
AND THOSE TO SUPPORT THE COUNT FOR MONOPOLIZING ARE SUBSTANTIALLY THE
SAME.  THE COUNTS VARY ONLY AS TO THE PURPOSES ALLEGED.  THE SAME MEANS
ALLEGEDLY ARE EMPLOYED TO CARRY OUT EACH CONSPIRACY.  AS SIMILAR LEGAL
ISSUES ARISE IN EACH CASE AND AS OUR CONCLUSIONS UPON EACH COUNT ARE
BASED UPON THE SAME REASONING, IT IS NOT NECESSARY TO MAKE FURTHER
DIFFERENTIATIONS BETWEEN THE COUNTS.  ONE OPINION WAS HANDED DOWN BY
THE DISTRICT COURT.  IT SETS OUT THE INDICTMENTS QUITE FULLY.  UNITED
STATES V. WAYNE PUMP CO., 44 F.SUPP.  949. 

AS OUR DECISION DOES NOT AND CANNOT IN OUR VIEW CONSIDER THE
CORRECTNESS OF A TRIAL COURT'S JUDGMENT THAT AN INDICTMENT FAILED
PROPERLY TO ALLEGE THE FACTS ESTABLISHING A CRIME (UNITED STATES V.
SANGES, 144 U.S. 310; UNITED STATES V. BURROUGHS, 289 U.S. 159), WE DO
NOT SET OUT THE ALLEGATIONS OF THESE COUNTS IN EXTENSO.  THIS HAS BEEN
DONE IN UNITED STATES V. WAYNE PUMP CO., SUPRA.  WE SHALL STATE HERE,
FOR CONVENIENCE IN GETTING A FOCUS ON THE PROBLEM ONLY, THAT THE COUNTS
OF THE INDICTMENTS CHARGED CONSPIRACIES AMONG THE DEFENDANTS TO FIX
PRICES ON, AND MONOPOLIZE THE INTERSTATE TRADE IN, COMPUTER PUMPS AND
COMPUTING MECHANISMS BY A SCHEME FOR USING PATENT RIGHTS AND LICENSES
TO MANUFACTURE UNDER THEM. 

THE DEFENDANTS DEMURRED TO THE INDICTMENTS AS INSUFFICIENT IN LAW TO
STATE AN OFFENSE.  IT WAS SAID IN THE DEMURRERS THAT THE INDICTMENTS
FAILED TO DESCRIBE OR PARTICULARIZE THE OFFENSE ATTEMPTED TO BE CHARGED
WITH SUFFICIENT DEFINITENESS, CERTAINTY OR SPECIFICITY TO INFORM THE
DEFENDANTS OF THE NATURE AND CAUSES OF THE ACCUSATIONS OR TO ENABLE
THEM TO PLEAD AN ACQUITTAL OR CONVICTION THEREUNDER IN BAR OF OTHER
PROCEEDINGS. 

THE TRIAL COURT SUSTAINED THE DEMURRERS TO EACH COUNT, FROM WHICH
RULING APPEALS TO THIS COURT WERE PRAYED UNDER THE CRIMINAL APPEALS
ACT, 34 STAT. 1246.  THAT STATUTE AUTHORIZES AN APPEAL TO THIS COURT
"FROM A DECISION OR JUDGMENT QUASHING, SETTING ASIDE, OR SUSTAINING A
DEMURRER TO, ANY INDICTMENT, OR ANY COUNT THEREOF, WHERE SUCH DECISION
OR JUDGMENT IS BASED UPON THE INVALIDITY, OR CONSTRUCTION OF THE
STATUTE UPON WHICH THE INDICTMENT IS FOUNDED."  FN2  WE HAVE NO
JURISDICTION IF THE JUDGMENT BELOW IS NOT SO BASED.  UNITED STATES V.
HASTINGS, 296 U.S. 188; UNITED STATES V. HALSEY, STUART & CO., 296 U.S.
451; UNITED STATES V. BORDEN CO., 308 U.S. 188. 

IN THEIR STATEMENT OPPOSING JURISDICTION, APPELLEES CONTENDED THAT
THE DEMURRERS WERE SUSTAINED BECAUSE OF THE INSUFFICIENCY OF THE
INDICTMENTS AS PLEADINGS, AS DISTINGUISHED FROM A CONSTRUCTION OF THE
STATUTE UPON WHICH THE INDICTMENTS WERE BASED, AND THEREFORE QUESTIONED
OUR JURISDICTION UNDER THE ACT.  WE POSTPONED DECISION OF THIS QUESTION
TO THE ARGUMENT ON THE MERITS AND WE NOW COME TO ITS DECISION. 

THERE IS DISAGREEMENT BETWEEN THE PARTIES AS TO WHETHER THE DISTRICT
COURT SUSTAINED THE DEMURRERS ON THE GROUND OF THE DEFICIENCY OF THE
PLEADINGS AS WELL AS UPON A CONSTRUCTION OF THE STATUTE.  THE LANGUAGE
OF THE OPINION MAKES IT APPARENT TO US THAT THE DISTRICT COURT'S
CONCLUSION WAS AT LEAST IN PART BOTTOMED UPON THE INDEFINITENESS,
UNCERTAINTY AND LACK OF SPECIFICITY OF THE INDICTMENTS.  IN THE OPINION
IT IS SAID, 44 F.SUPP.  949, 956: 

"THERE IS NO CHARGE THAT DEFENDANTS FIXED THE PRICES OF GASOLINE
PUMPS GENERALLY, OR RESTRICTED THEIR MANUFACTURE AND SALE.  THEY ARE
CHARGED ONLY WITH FIXING THE PRICES OF COMPUTER PUMPS, A RIGHT WHICH
THE WAYNE PUMP COMPANY ALREADY HAD UNDER THE STATUTORY MONOPOLY GRANTED
BY THE GOVERNMENT WHEN ITS PATENT WAS ISSUED.  WHAT IS MEANT BY THE
PHRASE 'USED THE JAUCH PATENT' IS NOT QUITE CLEAR.  IF THE DEFENDANTS
DID MORE THAN ENTER INTO ORDINARY PATENT LICENSE AGREEMENTS, UNDER THE
TERMS OF WHICH THE WAYNE PUMP COMPANY, AS OWNER OF THE PATENT, LICENSED
THE OTHERS TO MANUFACTURE COMPUTER PUMPS, AND FIXED THE PRICES AT WHICH
THE PUMPS SHOULD BE SOLD; OR IF THE GOVERNMENT CLAIMS THAT THESE
DEFENDANTS WERE INVOLVED IN SOME OFFENSE UNDER THE SHERMAN ACT OTHER
THAN THE EXERCISE OF A PATENT MONOPOLY, THEN SUCH OFFENSE SHOULD BE SET
OUT CLEARLY IN THE INDICTMENTS." 

THE COURT FURTHER SAID, ID., 956:  "HOW THEY TOOK JOINT ACTION OR
ENTERED INTO JOINT AGREEMENTS TO USE THE JAUCH PATENT TO ACHIEVE THE
ALLEGED ILLEGAL OBJECTIVES, OR HOW THEY WENT OUTSIDE THE MONOPOLY
GRANTED TO THE PATENTEE AND ITS LICENSEES, IS NOWHERE SET OUT IN THE
INDICTMENTS." 

THE LOWER COURT IN UNITED STATES V. COLGATE & CO., 253 F. 522,
AFFIRMED 250 U.S. 300, HAD CRITICIZED AN INDICTMENT BECAUSE OF FAILURE
TO SET OUT FACTS AGAINST ANY SET OF WHOLESALERS OR RETAILERS ALLEGED TO
HAVE ACTED IN COMBINATION WITH THE DEFENDANT.  IN THIS CASE, COMMENTING
UPON WHAT IS SAID TO BE A SIMILAR SITUATION, THE DISTRICT COURT SAID,
ID., 958: 

"SO IN THE CASE AT BAR, IF THESE CONDITIONS EXIST, THE GOVERNMENT
SHOULD HAVE NO DIFFICULTY IN SETTING FORTH AT LEAST ONE SPECIFIC
INSTANCE OF WHERE DEFENDANTS DETERMINED THE RESALE PRICE AT WHICH
JOBBERS MIGHT RESELL COMPUTER PUMPS.  IF THIS CONDITION DOES EXIST,
SURELY THE GOVERNMENT MUST BE IN POSSESSION OF THE FACTS, AND THEY
SHOULD BE SET OUT IN THE INDICTMENTS, SO AS TO REASONABLY INFORM
DEFENDANTS OF THE OFFENSE WITH WHICH THEY ARE CHARGED." 

THE OPINION ADDED, ID., 958: 

"THE GOVERNMENT IN ITS ARGUMENT INSISTS THAT COMPETING PATENTS ARE
HERE INVOLVED, AND THAT A MONOPOLY OF COMPETING PATENTS WAS ACQUIRED BY
SOME OF THE DEFENDANTS IN FURTHERANCE OF THE PLAN TO CARRY OUT THE
CONSPIRACY, BUT THE INDICTMENTS SET OUT NO FACTS WHEREBY TO IDENTIFY
THESE COMPETING PATENTS, NOR IN WHAT MANNER NOR BY WHOM SUCH MONOPOLY
IN THEM WAS ACQUIRED." 

FINALLY THE TRIAL COURT CONCLUDED, ID., 959: 

"IT IS FUNDAMENTAL THAT IN EVERY INDICTMENT THE DEFENDANT IS ENTITLED
TO BE INFORMED WITH SUCH DEFINITENESS AND CERTAINTY OF THE ACCUSATIONS
AGAINST HIM AS WILL ENABLE HIM TO MAKE HIS DEFENSE, AND AVAIL HIMSELF
OF ACQUITTAL OR CONVICTION IN ANY FURTHER PROSECUTION FOR THE SAME
OFFENSE.  HAVING IN MIND THAT THE SUBJECT MATTER OF THE INSTANT
INDICTMENTS IS PROTECTED BY A PATENT, I AM OF THE OPINION THAT THE
DEFENDANTS HERE HAVE NOT BEEN FURNISHED WITH SUCH DEFINITE AND
PARTICULAR ALLEGATIONS OF FACT AS WILL MEET THIS TEST.  THE CHARGES ARE
MUCH TOO GENERAL.  THEY DO NOT ADEQUATELY DESCRIBE THE NATURE OF THE
ALLEGED UNLAWFUL CONSPIRACY AGREEMENTS OR ARRANGEMENTS WHICH DEFENDANTS
ARE ACCUSED OF HAVING MADE, NOR SHOW HOW THE DEFENDANTS BECAME PARTIES
THERETO, NOR HOW THEY COLLABORATED IN DOING THE UNLAWFUL THINGS; NOR
SET OUT ANY UNLAWFUL MEANS WHEREBY THE UNLAWFUL OBJECTIVES WERE
ACCOMPLISHED." 

FURTHER, THE DISTRICT COURT, IN OUR OPINION, MADE IT ALTOGETHER CLEAR
THAT IT WAS NOT DETERMINING SOLELY THE LIMITS OF A PATENT MONOPOLY.  IT
POINTED OUT THAT A PATENTEE MIGHT LICENSE (ID., 954) AS IT CHOSE,
PROVIDED ONLY THAT IN SO DOING IT DID NOT VIOLATE ANY OTHER LAW.  THE
SHERMAN ACT WAS IN MIND.  THE COURT SAID, ID., 956: 

"WHILE OWNERSHIP OF THE PATENT GIVES TO THE PATENTEE A COMPLETE
MONOPOLY WITHIN THE FIELD OF HIS PATENT, IT OF COURSE DOES NOT GIVE HIM
ANY LICENSE TO VIOLATE THE PROVISIONS OF THE SHERMAN ACT OR OF ANY
OTHER LAW.  UNDER HIS MONOPOLY HE MAY NOT USE HIS PATENT AS A PRETEXT
FOR FIXING PRICES ON AN UNPATENTED ARTICLE OF COMMERCE; NOR FIX THE
RESALE PRICE ON HIS PATENTED ARTICLE; NOR MAKE USE OF 'TYING
CLAUSES.'" 

THE GOVERNMENT, OF COURSE, RECOGNIZES THAT THE OPINION MANIFESTS THE
DISTRICT COURT'S VIEW THAT THE INDICTMENT FAILED TO ALLEGE VIOLATIONS
OF THE SHERMAN ACT WITH SUFFICIENT DEFINITENESS AND PARTICULARITY.  BUT
THE GOVERNMENT URGES THAT SUCH A RULING AROSE FROM THE DISTRICT COURT'S
ERROR IN HOLDING, ON THE MERITS, THAT THE FACTS SET OUT IN THE
INDICTMENT DO NOT CHARGE, AS A MATTER OF SUBSTANCE, CRIMES WITHIN THE
MEANING OF THE SHERMAN ACT.  IT IS THE GOVERNMENT'S CONTENTION THAT,
AFTER MAKING THIS FUNDAMENTAL RULING, THE DISTRICT COURT "THEN SIMPLY
WENT ON TO SAY THAT THE INDICTMENTS ARE DEFECTIVE AS PLEADINGS IF THEY
ARE INTENDED TO CHARGE CRIMES WITHIN THE SHERMAN ACT AS THAT ACT IS
CONSTRUED BY THE COURT BELOW." 

WE DO NOT READ THE DISTRICT COURT'S OPINION IN THAT WAY.  WHERE A
COURT INTERPRETS A CRIMINAL STATUTE SO AS TO EXCLUDE CERTAIN ACTS AND
TRANSACTIONS FROM ITS REACH, IT WOULD OF NECESSITY ALSO HOLD, EXPRESSLY
OR IMPLIEDLY, AS THE GOVERNMENT SUGGESTS, THAT THE INDICTMENT,
CONSIDERED MERELY AS A PLEADING, WAS DEFECTIVE.  YET, THE ESSENCE OF
THE RULING WOULD BE BASED UPON A CONSTRUCTION OF THE STATUTE.  WE
ACCEPT AS CORRECT, FOR THE PURPOSES OF THIS DISCUSSION ONLY, THE
GOVERNMENT'S UNDERSTANDING OF THE OPINION AS HOLDING THAT THE
ALLEGATIONS OF THE INDICTMENT, CONSIDERED IN SUBSTANCE AND APART FROM
REQUIRED SPECIFICITY, DID NOT ALLEGE VIOLATIONS OF THE SHERMAN ACT.  IT
WAS A STATUTORY CONSTRUCTION SUCH AS THAT JUST STATED WHICH LED THIS
COURT TO ACCEPT JURISDICTION UNDER THE CRIMINAL APPEALS ACT IN UNITED
STATES V. HASTINGS, 296 U.S. 188, 195. 

IN THE LIGHT OF THE OPINION, HOWEVER, WE CONCLUDE THAT THE JUDGMENT
UPHOLDING THE DEMURRER WAS BASED ALSO ON GROUNDS INDEPENDENT OF THE
CONSTRUCTION OF THE STATUTE INVOLVED.  THE DEMURRERS UPON WHICH THE
RULING BELOW WAS BASED SHOW ON THEIR FACE, AS APPEARS FROM THE TYPICAL
EXAMPLE BELOW, THAT THEY WERE AIMED NOT AT THE COVERAGE OF THE SHERMAN
ACT BUT AT THE FORM OF THE INDICTMENTS.  FN3  THIS WAS THE OBJECTION
DETERMINED BY THE COURT.  THE EXCERPTS FROM THE OPINION QUOTED ABOVE
ARE CONCLUSIVE, WE THINK, THAT THE DISTRICT COURT RESTED ITS RULING ON
THE INSUFFICIENCY OF THE PLEADING AS AN INDEPENDENT GROUND. 

SINCE THE JUDGMENT BELOW WAS NOT PLACED SOLELY UPON THE INVALIDITY OR
CONSTRUCTION OF THE STATUTE BUT HAD AN ADDITIONAL AND INDEPENDENT
GROUND, THE CRIMINAL APPEALS ACT DOES NOT AUTHORIZE REVIEW.  UNITED
STATES V. HASTINGS, 296 U.S. 188, 193; UNITED STATES V. HALSEY, STUART
& CO., 296 U.S. 451; UNITED STATES V. BORDEN CO., 308 U.S. 188, 193. 
FN4  ANY CONTRARY HOLDING WOULD BE TO ASSUME A POWER OF REVIEW NOT
BESTOWED BY CONGRESS.  FN5  FURTHERMORE, AT THE TIME OF THE ENTRY OF
THE DISTRICT COURT JUDGMENT, THERE WAS NO PROVISION FOR REVIEW OF
ORDERS SUSTAINING DEMURRERS UPON GROUNDS OTHER THAN THOSE INVOLVING THE
CONSTRUCTION OF THE BASIC STATUTE. 

THE CRIMINAL APPEALS ACT, FN6  UNDER WHICH THE GOVERNMENT BROUGHT
THESE CASES HERE, NOW CONTAINS A PROVISION FOR A REMAND TO THE CIRCUIT
COURT OF APPEALS IF REVIEW BY THIS COURT ON DIRECT APPEAL IS FOUND TO
BE UNAUTHORIZED.  THE GOVERNMENT DOES NOT DIFFER WITH APPELLEES'
SPECIFIC STATEMENT THAT THE NEW PROVISION IS INAPPLICABLE TO THIS
APPEAL.  WE DO NOT THINK THAT IT IS APPLICABLE.  SIX WEEKS AFTER TIME
TO APPEAL HAD EXPIRED  FN7  THE ACT WAS AMENDED.  FN8  THE AMENDMENT
FOR THE FIRST TIME PERMITS APPEALS TO THE CIRCUIT COURTS OF APPEALS
FROM ORDERS SUSTAINING A DEMURRER TO AN INDICTMENT IN CASES NOT
DIRECTLY APPEALABLE TO THIS COURT.  THE TIME TO APPEAL TO ALL COURTS
REMAINS UNCHANGED.  THE AMENDMENT PROVIDES THAT "IF AN APPEAL SHALL BE
TAKEN PURSUANT TO THIS ACT TO THE SUPREME COURT OF THE UNITED STATES
WHICH, IN THE OPINION OF THAT COURT, SHOULD HAVE BEEN TAKEN TO A
CIRCUIT COURT OF APPEALS  ...  THE SUPREME COURT OF THE UNITED STATES
SHALL REMAND THE CAUSE TO THE CIRCUIT COURT OF APPEALS  ...  WHICH
SHALL THEN HAVE JURISDICTION TO HEAR AND DETERMINE THE SAME AS IF THE
APPEAL HAD BEEN TAKEN TO THAT COURT IN THE FIRST INSTANCE; ...  "  THIS
LANGUAGE DIRECTS THE REMAND OF A CASE IN WHICH THE APPEAL, AT THE TIME
IT WAS TAKEN, SHOULD HAVE BEEN TAKEN TO THE CIRCUIT COURT OF APPEALS
BUT WAS INSTEAD ERRONEOUSLY TAKEN TO THIS COURT.  IT IS INTENDED TO
SAVE TO THE GOVERNMENT THE RIGHT OF APPEAL WHICH MIGHT OTHERWISE BE
LOST BY ITS ERRONEOUS VIEW AS TO THE PROPER APPELLATE TRIBUNAL.  FN9
AT THE TIME THE INSTANT APPEALS WERE TAKEN, THERE WAS NO STATUTORY
AUTHORITY FOR AN APPEAL TO THE CIRCUIT COURT OF APPEALS AND THEREFORE
NO ROOM FOR AN ERRONEOUS CHOICE BETWEEN APPELLATE COURTS. 
CONSEQUENTLY, THE PROVISO HAS NO APPLICATION.  TO HOLD OTHERWISE WOULD
BE TO GIVE A RIGHT OF APPEAL WHERE NONE EXISTED AT THE TIME THE APPEAL
WAS TAKEN.  WHILE THIS MIGHT BE PERMISSIBLE IF THERE WERE SUCH A
LEGISLATIVE INTENTION, THE AMENDMENT IS NOT RETROSPECTIVE IN TERMS. 
STEPHENS V. CHEROKEE NATION, 174 U.S. 445, 478; FREEBORN V. SMITH, 2
WALL.  160.  NOR DOES IT APPEAR THAT CONGRESS HAD THE INSTANT CASE IN
MIND IN ENACTING THE AMENDMENT.  H. ROUW CO. V. CRIVELLA, 310 U.S.
612.  WE THEREFORE VIEW THE RIGHT TO APPEAL AND THE COURT TO WHICH AN
APPEAL LIES AS THEY EXISTED AT THE TIME THE APPEAL WAS TAKEN.  GWIN V.
UNITED STATES, 184 U.S. 669, 674.  DISMISSED. 

FN1  SECTION 1:  "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 HEREBY DECLARED TO BE
ILLEGAL.  ...  EVERY PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN
ANY COMBINATION OR CONSPIRACY HEREBY DECLARED TO BE ILLEGAL SHALL BE
DEEMED GUILTY OF A MISDEMEANOR, AND, ON CONVICTION THEREOF, SHALL BE
PUNISHED BY FINE NOT EXCEEDING $5,000, OR BY IMPRISONMENT NOT EXCEEDING
ONE YEAR, OR BY BOTH SAID PUNISHMENTS, IN THE DISCRETION OF THE
COURT."  50 STAT. 693, 15 U.S.C. SEC. 1. 

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, AND,
ON CONVICTION THEREOF, SHALL BE PUNISHED BY FINE NOT EXCEEDING FIVE
THOUSAND DOLLARS, OR BY IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY BOTH
SAID PUNISHMENTS, IN THE DISCRETION OF THE COURT."  26 STAT. 209, 15
U.S.C. SEC. 2. 

FN2  AS AMENDED ON MAY 9, 1942, THE ACT FURTHER PROVIDES:  "AN APPEAL
MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM THE DISTRICT
COURTS TO A CIRCUIT COURT OF APPEALS OR THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA, AS THE CASE MAY BE, IN ALL
CRIMINAL CASES, IN THE FOLLOWING INSTANCES, TO WIT:  FROM A DECISION OR
JUDGMENT QUASHING, SETTING ASIDE, OR SUSTAINING A DEMURRER OR PLEA IN
ABATEMENT TO ANY INDICTMENT OR INFORMATION, OR ANY COUNT THEREOF EXCEPT
WHERE A DIRECT APPEAL TO THE SUPREME COURT OF THE UNITED STATES IS
PROVIDED BY THIS ACT."  56 STAT. 271, 18 U.S.C. SEC. 682. 

FN3  THE FORMAL PARTS ARE OMITTED: 

"1.  SAID INDICTMENT AND EACH COUNT THEREOF, IN VIOLATION OF THE
RIGHTS GUARANTEED TO SAID DEFENDANTS BY THE FIFTH AND SIXTH AMENDMENTS
TO THE CONSTITUTION OF THE UNITED STATES, FAILS TO DESCRIBE AND
PARTICULARIZE THE OFFENSES ATTEMPTED TO BE CHARGED THEREIN WITH
SUFFICIENT DEFINITENESS, CERTAINTY AND SPECIFICITY TO INFORM THEM OF
THE NATURE AND CAUSE OF THE ACCUSATION, TO ENABLE THEM TO PREPARE AND
MAKE THEIR DEFENSE THERETO, AND TO ENABLE THEM TO PLEAD AN ACQUITTAL OR
A CONVICTION THEREUNDER IN BAR OF ANY OTHER PROCEEDINGS AGAINST THEM
BASED ON THE MATTERS OR THINGS, OR ANY OF THEM, ON WHICH SAID
INDICTMENT IS BASED. 

2.  THE AVERMENTS OF SAID INDICTMENT, AND EACH COUNT THEREOF,
PURPORTING TO CHARGE A COMBINATION AND CONSPIRACY TO MONOPOLIZE THE
MANUFACTURE AND SALE OF COMPUTER PUMPS AND A COMBINATION AND CONSPIRACY
TO MONOPOLIZE THE MANUFACTURE AND SALE OF COMPUTING MECHANISMS ARE MERE
CONCLUSIONS. 

3.  SAID INDICTMENT FAILS TO MAKE AVERMENTS SUFFICIENT TO IDENTIFY
AND DESCRIBE THE SUPPOSED COMBINATION AND CONSPIRACY IN EACH COUNT OF
SAID INDICTMENT ALLEGED IN THAT IT DOES NOT ALLEGE WITH PARTICULARITY
ANY OF THE FOLLOWING: 

(A)  THE FACTUAL BASIS UPON WHICH THE UNITED STATES RELIES FOR ITS
CHARGE THAT SAID COMBINATIONS AND CONSPIRACIES EXIST OR HAVE EXISTED; 

(B)  THE MANNER OF FORMATION OF THE SUPPOSED COMBINATIONS AND
CONSPIRACIES; 

(C)  THE TERMS OF THE SUPPOSED COMBINATIONS AND CONSPIRACIES; OR 

(D)  THE MANNER IN AND BY WHICH IT IS CLAIMED THAT SAID DEFENDANTS
BECAME PARTIES TO THE SUPPOSED COMBINATIONS OR CONSPIRACIES. 

4.  THE AVERMENTS IN SAID INDICTMENT AND EACH COUNT THEREOF WITH
RESPECT TO THE SUPPOSED COMBINATIONS AND CONSPIRACIES TO MONOPOLIZE,
AND THE INTENDED MEANS FOR THE ACCOMPLISHMENT THEREOF, ARE SO VAGUE,
INDEFINITE, UNCERTAIN, AND CONCLUSORY IN CHARACTER AS TO FAIL TO
APPRISE SAID DEFENDANTS OF THE MANNER IN WHICH THE PROSECUTION CLAIMS
THAT THEY HAVE VIOLATED THE LAW PERTAINING TO COMBINATION OR CONSPIRACY
TO MONOPOLIZE THE MANUFACTURE AND SALE OF THE COMPUTER PUMPS OR THE
MANUFACTURE AND SALE OF COMPUTING MECHANISMS." 

FN4  AT ONE TIME, THIS COURT PERMITTED REVIEW UNDER THE CRIMINAL
APPEALS ACT OF QUESTIONS OF STATUTORY CONSTRUCTION EVEN WHERE SUCH
QUESTIONS WERE NOT THE SOLE BASIS OF THE JUDGMENT.  UNITED STATES V.
STEVENSON, 215 U.S. 190, 195.  THIS PRACTICE WAS DISAPPROVED.  SEE
UNITED STATES V. HASTINGS, 296 U.S. 188, 194. 

FN5  UNITED STATES V. HASTINGS, 296 U.S. 188, 192, N. 2. 

FN6  ACT OF MARCH 2, 1907, 34 STAT. 1246, 18 U.S.C. SEC. 682. 

FN7  THE ORDERS APPEALED FROM ARE DATED FEBRUARY 24, 1942.  THE ACT
PROVIDES THAT APPEALS BE TAKEN WITHIN THIRTY DAYS AFTER THE JUDGMENT IS
RENDERED.  PETITIONS FOR APPEAL WERE ALLOWED MARCH 26, 1942, WITHIN THE
THIRTY DAY PERIOD. 

FN8  ACT OF MAY 9, 1942, 56 STAT. 271. 

FN9  IN DESCRIBING THE EFFECT OF THE BILL, IT WAS SAID BY THE HOUSE
CONFERENCE MANAGERS THAT THE ACT "PERMITS APPEALS TO THE CIRCUIT COURTS
OF APPEALS OF THE UNITED STATES WHERE APPEALS HAVE IMPROPERLY BEEN
TAKEN DIRECTLY TO THE SUPREME COURT.  ...  IN OTHER WORDS, IT PERMITS
OF A CORRECTION OF THE APPEAL IN CASES WHERE APPEAL HAS BEEN TAKEN TO
THE WRONG COURT."  H. REP. NO. 2052, 77TH CONG., 2D SESS., P. 2; SEE
ALSO H. REP. NO. 45, 77TH CONG., 1ST SESS., P. 2. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OF THESE
APPEALS. 

MR. JUSTICE DOUGLAS, DISSENTING: 

MR. JUSTICE BLACK, MR. JUSTICE MURPHY AND I ARE OF THE VIEW THAT THE
JUDGMENTS SHOULD BE REVERSED.  IN OUR OPINION THE DISTRICT COURT'S
RULINGS THAT THE INDICTMENTS WERE DEFECTIVE RESULTED FROM
INTERPRETATIONS OF THE SHERMAN ACT AND THE PATENT LAW WHICH ARE
ERRONEOUS IN LIGHT OF UNITED STATES V. MASONITE CORPORATION, 316 U.S.
265, AND RELATED CASES. 
..END :









ALBIN V. COWING JOINT CO., 317 U.S. 211 


NO. 234.  SUBMITTED NOVEMBER 20, 1942.  - DECIDED DECEMBER 7, 1942.  -
REVERSED. 


AN ORDER OF THE BANKRUPTCY COURT VACATING AN EARLIER ORDER RESTRAINING
THE PROSECUTION BY THE ALLEGED BANKRUPT OF A SUIT IN A STATE COURT, IN
WHICH SUIT, IT WAS ALLEGED, COUNTERCLAIMS IN EXCESS OF THE AMOUNT
CLAIMED BY THE ALLEGED BANKRUPT WERE FILED, IS, UNDER SEC. 24(A) OF THE
CHANDLER ACT, APPEALABLE TO THE CIRCUIT COURT OF APPEALS.  P. 212. 

ALBIN V. COWING PRESSURE RELIEVING JOINT CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 608, TO REVIEW A DECREE DISMISSING FOR LACK OF
JURISDICTION AN APPEAL FROM AN INTERLOCUTORY ORDER OF THE BANKRUPTCY
COURT DISSOLVING A RESTRAINING ORDER. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER FILED AN INVOLUNTARY PETITION IN BANKRUPTCY AGAINST
RESPONDENT, WHO ANSWERED DENYING THE ALLEGATIONS OF THE PETITION. 
PRIOR TO ADJUDICATION, THE BANKRUPTCY COURT ENTERED AN EX PARTE ORDER,
ON PETITION OF THE SAME CREDITOR, RESTRAINING THE PROSECUTION BY
RESPONDENT OR ITS AGENTS OF A SUIT IN THE ILLINOIS STATE COURTS ON A
CLAIM AGAINST ONE FISHER, IN WHICH SUIT, IT WAS ALLEGED, FISHER HAD
FILED COUNTERCLAIMS WHICH WOULD EXCEED THE AMOUNT OF THE RESPONDENT'S
CLAIM.  THEREAFTER, ON PETITION OF RESPONDENT AND AFTER NOTICE TO ALL
PARTIES AND A HEARING, THE BANKRUPTCY COURT VACATED THE RESTRAINING
ORDER.  THIS LIKEWISE WAS, SO FAR AS APPEARS, PRIOR TO AN
ADJUDICATION.  PETITIONER APPEALED.  THE CIRCUIT COURT OF APPEALS
DISMISSED THE APPEAL "FOR LACK OF JURISDICTION."  THE CASE IS HERE ON
CERTIORARI. 

SEC. 24(A) OF THE CHANDLER ACT (52 STAT. 854, 11 U.S.C. SEC. 47)
GIVES THE CIRCUIT COURTS OF APPEALS APPELLATE JURISDICTION FROM COURTS
OF BANKRUPTCY "IN PROCEEDINGS IN BANKRUPTCY, EITHER INTERLOCUTORY OR
FINAL."  AN ORDER OF THE BANKRUPTCY COURT VACATING A RESTRAINING ORDER
AGAINST PROSECUTION OF A SUIT IN A STATE COURT IS, LIKE A STAY ORDER
ITSELF, A PROCEEDING IN BANKRUPTCY.  SEE HARRISON SECURITIES CO. V.
SPINKS REALTY CO., 92 F.2D 904; TAYLOR V. VOSS, 271 U.S. 176, 181.  THE
AMENDMENTS TO SEC. 24(A) MADE BY THE CHANDLER ACT PRACTICALLY ABOLISHED
THE DISTINCTION BETWEEN APPEALS AS OF RIGHT AND BY LEAVE.  S. REP. NO.
1916, 75TH CONG., 3D SESS., P. 4.  AND SEE DICKINSON INDUSTRIAL SITE V.
COWAN, 309 U.S. 382, 385-388.  WHATEVER MAY STILL BE THE POSSIBLE
LIMITATIONS ON THE REVIEWABILITY OF INTERLOCUTORY ORDERS (SEE IN RE
HOTEL GOVERNOR CLINTON, 107 F.2D 398; FEDERAL LAND BANK V. HANSEN, 113
F.2D 82, 84-85), NO REASON APPEARS WHY THIS ONE CANNOT OR SHOULD NOT BE
REVIEWED.  NOR DOES IT APPEAR FROM THE RECORD WHICH IS BEFORE US THAT
THE ISSUE IS MOOT.  WE INTIMATE NO OPINION ON THE MERITS.  THE JUDGMENT
IS REVERSED AND THE CAUSE REMANDED TO THE CIRCUIT COURT OF APPEALS FOR
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 
..END :




















PYLE V. KANSAS, 317 U.S. 213 


NO. 50.  ARGUED NOVEMBER 9, 10, 1942.  - DECIDED DECEMBER 7, 1942.  -
REVERSED. 


1.  HABEAS CORPUS IS A REMEDY AVAILABLE IN THE STATE COURTS OF KANSAS
TO PERSONS IMPRISONED IN VIOLATION OF RIGHTS GUARANTEED BY THE FEDERAL
CONSTITUTION.  P. 215. 

2.  A PETITION FOR A WRIT OF HABEAS CORPUS ALLEGING THAT THE
PETITIONER IS IMPRISONED UPON A CONVICTION OBTAINED THROUGH THE USE OF
TESTIMONY KNOWN BY THE PROSECUTING OFFICERS TO HAVE BEEN PERJURED, AND
THROUGH THE SUPPRESSION BY THEM OF EVIDENCE FAVORABLE TO HIM,
SUFFICIENTLY ALLEGES A DEPRIVATION OF RIGHTS GUARANTEED BY THE FEDERAL
CONSTITUTION; AND THE DENIAL OF THE PETITION WITHOUT A DETERMINATION AS
TO THE TRUTH OF THE ALLEGATIONS WAS ERROR.  P. 216. 

3.  IN VIEW OF THE INEXPERT DRAFTING OF THE PETITION FOR THE WRIT OF
HABEAS CORPUS IN THIS CASE, THE REMAND TO THE STATE COURT IS WITHOUT
PREJUDICE TO ANY PROCEDURE THERE DESIGNED TO ACHIEVE GREATER
PARTICULARITY IN THE ALLEGATIONS.  P. 216. 

PYLE V. KANSAS ET AL. 

CERTIORARI TO THE SUPREME COURT OF KANSAS. 

CERTIORARI, 316 U.S. 654, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DENYING AN APPLICATION FOR A WRIT OF HABEAS CORPUS. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONER SEEKS TO REVIEW AN ORDER OF THE SUPREME COURT OF KANSAS
DENYING HIS APPLICATION FOR WRIT OF HABEAS CORPUS.  IN 1935 PETITIONER
WAS CONVICTED BY A JURY IN A KANSAS STATE COURT UPON AN INFORMATION
CHARGING HIM WITH THE CRIMES OF MURDER AND ROBBERY.  A MOTION FOR A NEW
TRIAL WAS OVERRULED, AND HE WAS SENTENCED TO LIFE IMPRISONMENT UNDER
HIS CONVICTION FOR MURDER, AND TO A TERM OF FROM 10 TO 21 YEARS FOR
ROBBERY.  ON APPEAL THE JUDGMENT WAS AFFIRMED BY THE SUPREME COURT OF
KANSAS.  STATE V. PYLE, 143 KAN. 772, 57 P.2D 93. 

ON NOVEMBER 20, 1941, PETITIONER, A LAYMAN ACTING IN HIS OWN BEHALF,
FILED AN ORIGINAL APPLICATION FOR WRIT OF HABEAS CORPUS IN THE SUPREME
COURT OF KANSAS.  THE CRUDE ALLEGATIONS OF THIS APPLICATION CHARGE THAT
HIS IMPRISONMENT WAS THE RESULT OF A DEPRIVATION OF RIGHTS GUARANTEED
HIM BY THE CONSTITUTION OF THE UNITED STATES, IN THAT THE KANSAS
PROSECUTING AUTHORITIES OBTAINED HIS CONVICTION BY THE PRESENTATION OF
TESTIMONY KNOWN TO BE PERJURED, AND BY THE SUPPRESSION OF TESTIMONY
FAVORABLE TO HIM.  FILED WITH THIS APPLICATION WERE A BRIEF AND AN
ABSTRACT, ALSO APPARENTLY PREPARED BY PETITIONER HIMSELF, WHICH ARE
PART OF THE RECORD BEFORE US.  THESE DOCUMENTS ELABORATE THE GENERAL
CHARGES OF THE APPLICATION, AND SPECIFICALLY ALLEGE THAT "ONE TRUMAN
REYNOLDS WAS COERCED AND THREATENED BY THE STATE TO TESTIFY FALSELY
AGAINST THE PETITIONER AND THAT SAID TESTIMONY DID HARM TO THE
PETITIONER'S DEFENSE"; THAT "ONE LACY CUNNINGHAM WHO HAD BEEN
PREVIOUSLY COMMITTED TO A MENTAL INSTITUTION WAS THREATENED WITH
PROSECUTION IF HE DID NOT TESTIFY FOR THE STATE"; THAT THE TESTIMONY OF
ONE ROY RILEY, MATERIAL TO PETITIONER'S DEFENSE, "WAS REPRESSED UNDER
THREAT AND COERCION BY THE STATE"; THAT MRS. ROY RILEY AND MRS. THELMA
RICHARDSON WERE INTIMIDATED AND THEIR TESTIMONY SUPPRESSED; AND, THAT
THE RECORD IN THE TRIAL OF ONE MERL HUDSON FOR COMPLICITY IN THE SAME
MURDER AND ROBBERY FOR WHICH PETITIONER WAS CONVICTED, HELD ABOUT SIX
MONTHS AFTER PETITIONER'S DIRECT APPEAL FROM HIS CONVICTION, REVEALS
THAT THE EVIDENCE THERE PRESENTED IS INCONSISTENT WITH THE EVIDENCE
PRESENTED AT PETITIONER'S TRIAL, AND CLEARLY EXONERATES PETITIONER. 

CERTAIN EXHIBITS ACCOMPANIED THE APPLICATION; AMONG THESE WERE
COPIES, SWORN BY PETITIONER TO BE TRUE AND CORRECT COPIES OF THE
ORIGINALS, OF AN AFFIDAVIT EXECUTED BY TRUMAN REYNOLDS IN 1940, AND A
LETTER DATED FEBRUARY 28, 1941, FROM THE FORMER PROSECUTING ATTORNEY
WHO REPRESENTED THE STATE AT PETITIONER'S TRIAL.  THE AFFIDAVIT
CONTAINED A STATEMENT THAT AFFIANT "WAS FORCED TO GIVE PERJURED
TESTIMONY AGAINST HARRY PYLE UNDER THREAT BY LOCAL AUTHORITIES AT ST.
JOHN, KANSAS AND THE KANSAS STATE POLICE, OF A PENITENTIARY SENTENCE
FOR BURGLARY IF I DID NOT TESTIFY AGAINST MR. PYLE."  THE LETTER
STATED, "YOUR CONVICTION WAS A GRAVE MISTAKE," AND FURTHER THAT, "THE
EVIDENCE AT THE TRIAL OF MERL HUDSON CERTAINLY SHATTERED THE
CONCLUSIONS DRAWN FROM THE EVIDENCE PRODUCED AT YOUR TRIAL." 

IN CONNECTION WITH HIS APPLICATION, PETITIONER MOVED FOR THE
APPOINTMENT OF COUNSEL TO REPRESENT HIM, FOR SUBPOENAS DUCES TECUM TO
BRING UP THE RECORDS IN THE TRIALS OF MERL HUDSON AND ONE BERT (BUD)
RICHARDSON, FOR THE SUBPOENAING OF CERTAIN WITNESSES ALLEGEDLY MATERIAL
TO HIS CASE, AND FOR HIS PRESENCE IN COURT.  THE RECORD DOES NOT SHOW
WHAT DISPOSITION, IF ANY, WAS MADE OF THESE VARIOUS MOTIONS. 

NO RETURN WAS MADE TO THE APPLICATION FOR THE WRIT.  ON DECEMBER 11,
1941, THE COURT BELOW ENTERED AN ORDER "THAT SAID PETITION BE FILED AND
DOCKETED WITHOUT COSTS, AND THEREUPON, AFTER DUE CONSIDERATION BY THE
COURT, IT IS ORDERED THAT SAID PETITION FOR WRIT OF HABEAS CORPUS BE
DENIED."  THERE WAS NO OPINION.  A MOTION TO REHEAR WAS ALSO DENIED
WITHOUT OPINION.  WE BROUGHT THE CASE HERE ON CERTIORARI, 316 U.S. 654,
BECAUSE OF THE CONSTITUTIONAL ISSUES INVOLVED. 

HABEAS CORPUS IS A REMEDY AVAILABLE IN THE COURTS OF KANSAS TO
PERSONS IMPRISONED IN VIOLATION OF RIGHTS GUARANTEED BY THE
CONSTITUTION OF THE UNITED STATES.  COCHRAN V. KANSAS, 316 U.S. 255,
258.  PETITIONER'S PAPERS ARE INEXPERTLY DRAWN, BUT THEY DO SET FORTH
ALLEGATIONS THAT HIS IMPRISONMENT RESULTED FROM PERJURED TESTIMONY,
KNOWINGLY USED BY THE STATE AUTHORITIES TO OBTAIN HIS CONVICTION, AND
FROM THE DELIBERATE SUPPRESSION BY THOSE SAME AUTHORITIES OF EVIDENCE
FAVORABLE TO HIM.  THESE ALLEGATIONS SUFFICIENTLY CHARGE A DEPRIVATION
OF RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION, AND, IF PROVEN, WOULD
ENTITLE PETITIONER TO RELEASE FROM HIS PRESENT CUSTODY.  MOONEY V.
HOLOHAN, 294 U.S. 103.  THEY ARE SUPPORTED BY THE EXHIBITS REFERRED TO
ABOVE, AND NOWHERE ARE THEY REFUTED OR DENIED.  THE RECORD OF
PETITIONER'S CONVICTION, WHILE REGULAR ON ITS FACE, MANIFESTLY DOES NOT
CONTROVERT THE CHARGES THAT PERJURED EVIDENCE WAS USED, AND THAT
FAVORABLE EVIDENCE WAS SUPPRESSED WITH THE KNOWLEDGE OF THE KANSAS
AUTHORITIES.  NO DETERMINATION OF THE VERITY OF THESE ALLEGATIONS
APPEARS TO HAVE BEEN MADE.  FN1  THE CASE IS THEREFORE REMANDED FOR
FURTHER PROCEEDINGS.  COCHRAN V. KANSAS, SUPRA; SMITH V. O'GRADY, 312
U.S. 329; CF. WALEY V. JOHNSTON, 316 U.S. 101, 104.  IN VIEW OF
PETITIONER'S INEXPERT DRAFTSMANSHIP, WE OF COURSE DO NOT FORECLOSE ANY
PROCEDURE DESIGNED TO ACHIEVE MORE PARTICULARITY IN PETITIONER'S
ALLEGATIONS AND ASSERTIONS.  REVERSED. 

FN1  IN RE PYLE, 153 KAN. 568, 112 P.2D 354, IS NOT SUCH A
DETERMINATION.  THAT WAS AN APPEAL BY PETITIONER FROM THE DISMISSAL OF
ANOTHER PETITION FOR WRIT OF HABEAS CORPUS BY THE KANSAS DISTRICT COURT
FOR THE LEAVENWORTH DISTRICT. 
..END :



















FISHER V. WHITON, 317 U.S. 217 


NO. 85.  ARGUED NOVEMBER 16, 1942.  - DECIDED DECEMBER 7, 1942.  - 25
TENN. APP. 230, 155 S.W.2D 882, REVERSED. 


1.  THE QUESTION AS TO WHEN THE PERIOD OF LIMITATIONS BEGINS TO RUN
AGAINST A RECEIVER'S CLAIM UPON AN ASSESSMENT LEVIED BY THE COMPTROLLER
OF THE CURRENCY ON STOCKHOLDERS OF AN INSOLVENT NATIONAL BANK IS A
FEDERAL QUESTION; AND, IN THE PRESENT CASE, THE QUESTION WAS DULY
RAISED AND PRESERVED BY APPROPRIATE EXCEPTIONS AND ASSIGNMENTS OF
ERROR.  P. 220. 

2.  IT IS WITHIN THE AUTHORITY OF THE COMPTROLLER OF THE CURRENCY TO
EXTEND FROM TIME TO TIME THE DATE FIXED FOR PAYMENT OF ASSESSMENTS
AGAINST STOCKHOLDERS OF INSOLVENT NATIONAL BANKS.  NOTHING IN THE
PERTINENT LEGISLATION, 12 U.S.C. SECS. 63, 64, 66, 191, 192, PREVENTS
SUCH EXTENSION.  P. 220. 

3.  THE RECEIVER OF AN INSOLVENT NATIONAL BANK DID NOT HAVE A
COMPLETE AND PRESENT CAUSE OF ACTION TO ENFORCE THE LIABILITY OF A
DECEASED STOCKHOLDER UNTIL THE DATE FINALLY FIXED BY THE COMPTROLLER OF
THE CURRENCY, AFTER EXTENSIONS OF DATES PREVIOUSLY FIXED, FOR PAYMENT;
AND, IN THIS VIEW, THE RECEIVER'S CLAIM AGAINST THE STOCKHOLDER'S
ESTATE WAS NOT BARRED BY SECS. 8225 AND 8604 OF THE TENNESSEE CODE. 
PUFAHL V. ESTATE OF PARKS, 299 U.S. 217, DISTINGUISHED.  P. 220. 

4.  THE DESIRABILITY OF CLOSING DECEDENTS' ESTATES SPEEDILY DOES NOT
WARRANT LIMITING THE POWER OF THE COMPTROLLER OF THE CURRENCY TO EXTEND
THE TIME FOR PAYMENT OF AN ASSESSMENT AGAINST STOCKHOLDERS OF INSOLVENT
NATIONAL BANKS.  P. 221. 

FISHER, RECEIVER, V. WHITON, EXECUTRIX, ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF TENNESSEE. 

UPON A PETITION FOR REHEARING, AN EARLIER ORDER OF THIS COURT DENYING
CERTIORARI, 316 U.S. 691, WAS VACATED AND CERTIORARI WAS GRANTED, 316
U.S. 707, TO REVIEW A DECREE OF AN INTERMEDIATE STATE COURT WHICH
AFFIRMED A DECREE OF THE STATE CHANCERY COURT BARRING ON THE GROUND OF
LIMITATIONS A CLAIM BY THE RECEIVER OF AN INSOLVENT NATIONAL BANK UPON
A STOCKHOLDER'S ASSESSMENT.  THE HIGHEST COURT OF THE STATE DENIED A
PETITION FOR A WRIT OF CERTIORARI. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN RAWLINGS V. RAY, 312 U.S. 96, WE DECIDED THAT STATE STATUTES OF
LIMITATIONS GOVERN THE TIME WITHIN WHICH TO ENFORCE THE LIABILITY
IMPOSED UPON STOCKHOLDERS OF INSOLVENT NATIONAL BANKS BY ASSESSMENTS
LEVIED BY THE COMPTROLLER OF THE CURRENCY; THAT THE QUESTION AS TO THE
TIME WHEN A COMPLETE AND PRESENT CAUSE OF ACTION ARISES IN THE RECEIVER
TO ENFORCE THAT LIABILITY BY SUIT IS A FEDERAL QUESTION; THAT NOTHING
IN THE APPLICABLE STATUTES, 12 U.S.C. SECS. 63, 64, 191, 192, PREVENTS
THE COMPTROLLER IN MAKING AN ASSESSMENT FROM FIXING A LATER DATE FOR
PAYMENT; AND, THAT SUIT CANNOT BE INSTITUTED PRIOR TO THE DATE FIXED
FOR PAYMENT AND A STATE STATUTE OF LIMITATIONS DOES NOT BEGIN TO RUN
UNTIL THAT DATE.  IN THIS CASE THE COMPTROLLER EXTENDED THE TIME FOR
PAYMENT BEYOND THE DATE ORIGINALLY SET, AND WE MUST DECIDE WHETHER TIME
RUNS FROM THE FIRST OR THE FINAL DATE FIXED FOR PAYMENT. 

PETITIONER IS THE SUCCESSOR TO THE ORIGINAL RECEIVER FOR THE
INSOLVENT FIRST NATIONAL BANK OF CHATTANOOGA.  ON APRIL 19, 1934, THE
COMPTROLLER OF THE CURRENCY LEVIED AN ASSESSMENT AGAINST THE BANK'S
STOCKHOLDERS FOR 100% OF THE PAR VALUE OF THEIR SHARES, PAYABLE ON MAY
26, 1934.  FN1  BY SUCCESSIVE ORDERS ENTERED ON MAY 17, 1934, JUNE 19,
1934, JUNE 22, 1934, AND MARCH 11, 1935, THE ORIGINAL MATURITY DATE OF
MAY 26, 1934, WAS EXTENDED TO MAKE THE ASSESSMENT PAYABLE ON APRIL 15,
1935.  NOTICE OF THE ASSESSMENT WAS GIVEN TO ALL STOCKHOLDERS ON MARCH
13, 1935. 

RESPONDENT, AS SUCCESSOR TO THE ORIGINAL EXECUTRIX, REPRESENTS THE
ESTATE OF C.C. NOTTINGHAM, WHICH HELD STOCK OF THE BANK, TO THE EXTENT
OF $138,000 PAR VALUE, AT THE TIME OF THE ASSESSMENT.  NO STEPS WERE
TAKEN TO ENFORCE AGAINST THE ESTATE THE LIABILITY IMPOSED BY THE
ASSESSMENT UNTIL AUGUST 2, 1935, WHEN PETITIONER'S PREDECESSOR FILED AN
ANSWER AND A CROSS-BILL IN AN ACTION COMMENCED ON JULY 24, 1935, IN THE
CHANCERY COURT FOR HAMILTON COUNTY, TENNESSEE, BY THE ORIGINAL
EXECUTRIX TO REQUIRE ALL CREDITORS TO APPEAR AND ESTABLISH THEIR
CLAIMS. 

THE CHANCERY COURT HELD THAT PETITIONER'S ASSESSMENT CLAIM ACCRUED ON
THE DATE FIRST FIXED FOR PAYMENT, MAY 23, 1934,  FN2  AND THAT THE
CLAIM WAS BARRED BY SEC. 8225 OF THE TENNESSEE CODE, FN3 FIXING A
PERIOD OF "SIX MONTHS FROM THE DATE THE CAUSE OF ACTION THEREON
ACCRUED" WITHIN WHICH TO ENFORCE PREVIOUSLY UNMATURED CLAIMS AGAINST
DECEDENTS.  THE COURT OF APPEALS AFFIRMED, RELYING UPON SEC. 8604 OF
THE CODE  FN4  AS WELL AS SEC. 8225.  25 TENN. APP. 230, 155 S.W.2D
882.  THE SUPREME COURT OF THE STATE DENIED A PETITION FOR WRIT OF
CERTIORARI.  THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF
INSOLVENT NATIONAL BANKS FN5  AND A CONFLICT WITH THE DECISION IN
STRASBURGER V. SCHRAM, 68 APP. D.C. 87, 93 F.2D 246, CAUSED US TO GRANT
CERTIORARI. 

OUR STARTING POINT, OF COURSE, IS RAWLINGS V. RAY, SUPRA.  THAT CASE
ADEQUATELY DISPOSES OF RESPONDENT'S CONTENTION THAT NO FEDERAL QUESTION
IS PRESENTED BY THIS CASE; WHETHER PETITIONER'S CAUSE OF ACTION WAS
COMPLETE ON MAY 26, 1934, OR APRIL 15, 1935, IS A FEDERAL QUESTION, 312
U.S. AT P. 98, WHICH WAS DULY RAISED AND PRESERVED BY APPROPRIATE
EXCEPTIONS AND ASSIGNMENTS OF ERROR.  AND, EVEN AS WE FOUND NOTHING IN
THE APPLICABLE STATUTES TO QUESTION "THE AUTHORITY OF THE COMPTROLLER
IN MAKING AN ASSESSMENT TO FIX A LATER DATE FOR ITS PAYMENT," ID. AT P.
99, WE SEE NOTHING IN THE PERTINENT LEGISLATION, 12 U.S.C. SECS. 63,
64, 66, 191, 192, FORBIDDING THE COMPTROLLER TO EXTEND THE DATE FIXED
FOR PAYMENT WITHIN REASONABLE LIMITS FROM TIME TO TIME.  SUCH
EXTENSIONS SEEM TO BE IN ACCORD WITH A LONG ESTABLISHED PRACTICE
DESIGNED TO ACHIEVE THE DESIRABLE RESULT OF AVOIDING EXCESSIVE AND
UNNECESSARY ASSESSMENTS.  FN6  SEE STRASBURGER V. SCHRAM, 68 APP. D.C.
87, 89; 93 F.2D 246, 248.  COMPARE KORBLY V. SPRINGFIELD INSTITUTION
FOR SAVINGS, 245 U.S. 330, WHERE, IN UPHOLDING THE POWER OF THE
COMPTROLLER TO WITHDRAW ONE ASSESSMENT AND LEVY A LATER ONE, WE
EMPHASIZED THE DESIRABILITY OF A LARGE MEASURE OF ADMINISTRATIVE
DISCRETION AND FLEXIBILITY IN THE ADJUSTMENT OF ASSESSMENTS TO THE
"EXIGENCIES OF EACH CASE."  P. 333. 

SINCE THE COMPTROLLER HAS POWER TO EXTEND THE TIME FOR PAYMENT,
RESPONDENT WAS NOT REQUIRED TO PAY UNTIL APRIL 15, 1935, AND PRIOR TO
THAT TIME SUIT COULD NOT BE INSTITUTED AGAINST HER.  RAWLINGS V. RAY,
SUPRA, P. 98.  WHILE THE RECEIVER ENFORCES THE LIABILITY CREATED BY THE
ASSESSMENT, 12 U.S.C. SECS. 191, 192, HE DOES SO SUBJECT TO THE
DIRECTION OF THE COMPTROLLER, KENNEDY V. GIBSON, 8 WALL.  498, 505.  SO
PETITIONER DID NOT HAVE A COMPLETE AND PRESENT CAUSE OF ACTION UNTIL
APRIL 15, 1935.  SINCE THE WORDS "FROM THE DATE THE CAUSE OF ACTION
ACCRUED THEREON," AS USED IN SEC. 8225 OF THE TENNESSEE CODE, SEEM TO
HAVE THEIR USUAL MEANING AND REFER TO THE TIME WHEN SUIT MAY BE
INSTITUTED,  FN7  IT FOLLOWS THAT PETITIONER'S CLAIM, FILED ON AUGUST
2, 1935, WAS IN TIME. 

RESPONDENT STRESSES SEC. 8604 OF THE CODE.  FN8  BUT, AS POINTED OUT
ABOVE, PETITIONER HAD NO RIGHT TO DEMAND PAYMENT BEFORE APRIL 15, 1935,
SO, EVEN IF SEC. 8604 APPLIES, IT DOES NOT BAR PETITIONER'S CLAIM. 

RESPONDENT MISTAKENLY RELIES UPON PUFAHL V. ESTATE OF PARKS, 299 U.S.
217, WHICH HAS NO APPLICATION, BECAUSE IN THAT CASE "WE WERE NOT
CONSIDERING OR DECIDING THE QUESTION OF THE APPLICATION OF A STATUTE OF
LIMITATIONS TO A SUIT AGAINST A STOCKHOLDER UPON AN ASSESSMENT MADE BY
THE COMPTROLLER WHERE PAYMENT WAS NOT REQUIRED BEFORE A SPECIFIED DATE,
PRIOR TO WHICH NO SUIT COULD BE MAINTAINED."  RAWLINGS V. RAY, SUPRA,
P. 99. 

WE ARE NOT UNMINDFUL THAT IT IS DESIRABLE TO CLOSE DECEDENTS' ESTATE
SPEEDILY, BUT THERE IS NO WARRANT IN THE FEDERAL LEGISLATION FOR
ALLOWING THAT CONSIDERATION TO LIMIT THE POWER OF THE COMPTROLLER TO
EXTEND THE TIME FOR PAYMENT OF AN ASSESSMENT. 

THE JUDGMENT BELOW IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  THIS IS THE DATE GIVEN IN THE PLEADINGS.  HOWEVER, THE OPINIONS
OF THE COURTS BELOW REFER TO MAY 23, 1934, AS THE FIRST DATE FIXED FOR
PAYMENT. 

FN2  SEE NOTE 1, SUPRA. 

FN3  MICHIE'S TENNESSEE CODE OF 1938, ANNOTATED. 

FN4  "SEC.  8604.  TIME RUNS FROM ACCRUAL OF RIGHT, NOT DEMAND.  WHEN
A RIGHT EXISTS, BUT A DEMAND IS NECESSARY TO ENTITLE THE PARTY TO AN
ACTION, THE LIMITATION COMMENCES FROM THE TIME THE PLAINTIFF'S RIGHT TO
MAKE THE DEMAND WAS COMPLETED, AND NOT FROM THE DATE OF THE DEMAND." 

FN5  THE DOUBLE LIABILITY FEATURE OF NATIONAL BANK STOCK HAS BEEN
ELIMINATED WHERE THERE HAS BEEN COMPLIANCE WITH THE PROVISIONS OF THE
STATUTE, BUT THIS DOES NOT APPLY TO BANKS IN DIFFICULTY PRIOR TO JULY
1, 1937, EXCEPT AS TO STOCK ISSUED AFTER JUNE 16, 1933.  12 U.S.C. SEC.
64(A). 

FN6  THE RECORD DOES NOT DISCLOSE THE REASON FOR THE EXTENSIONS OF
TIME HERE, BUT IT APPEARS THAT THEY WERE MADE AT THE REQUEST OF A
STOCKHOLDERS' COMMITTEE WHICH PROTESTED THE NECESSITY OF A 100%
ASSESSMENT AND ASKED FOR A REAPPRAISAL OF THE BANK'S ASSETS.  SEE
COFFEY V. FISHER, 100 F.2D 51, 52, INVOLVING THE SAME ASSESSMENT HERE
CONSIDERED. 

FN7  SEE JONES V. WHITWORTH, 94 TENN. 602, 616, 30 S.W. 736;
GILLESPIE V. BROADWAY NATIONAL BANK, 167 TENN. 245, 249, 68 S.W.2D 479;
KNOXVILLE V. GERVIN, 169 TENN. 532, 544, 89 S.W.2D 348. 

FN8  SEE NOTE 4, SUPRA.
..END :






MOTHER LODE CO. V. COMM'R, 317 U.S. 222 


NO. 94.  ARGUED NOVEMBER 19, 1942.  - DECIDED DECEMBER 7, 1942.  - 125
F.2D 657, AFFIRMED. 


1.  AN INCOME TAX RETURN FOR THE YEAR 1934, IN WHICH THE TAXPAYER HAD
ITEMS OF GROSS INCOME (AND RELATED DEDUCTIONS) FROM A MINING PROPERTY,
WAS THE "FIRST RETURN  ...  IN RESPECT OF" THE PROPERTY WITHIN THE
MEANING OF SEC. 114(B)(4) OF THE REVENUE ACT OF 1934, AND THE
TAXPAYER'S FAILURE IN THAT RETURN TO STATE WHETHER IT ELECTED TO HAVE
THE DEPLETION ALLOWANCE FOR SUCH PROPERTY COMPUTED ON THE PERCENTAGE
BASIS FORECLOSED A CLAIM OF A PERCENTAGE DEPLETION ALLOWANCE IN ITS
RETURN FOR 1934, - NOTWITHSTANDING THAT IN 1934 THE TAXPAYER HAD NO NET
INCOME AND NO BASIS FOR A DEPLETION ALLOWANCE.  P. 223. 

2.  THIS CONSTRUCTION OF SEC. 114(B)(4) IS IN ACCORD WITH THE
ADMINISTRATIVE INTERPRETATION EVIDENCED BY ARTICLE 23(M)-5 OF TREASURY
REGULATIONS 86, WHICH IS CONSISTENT WITH THE STATUTE AND SUPPORTED ALSO
BY PRACTICAL CONSIDERATIONS.  P. 224. 

MOTHER LODE COALITION MINES CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 316 U.S. 660, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 42 B.T.A. 596, SUSTAINING THE COMMISSIONER'S
DISALLOWANCE OF A DEDUCTION FOR DEPLETION IN THE COMPUTATION OF
PETITIONER'S INCOME TAX. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE QUESTION PRESENTED BY THIS CASE IS WHETHER PETITIONER IS
ENTITLED TO A DEDUCTION IN ITS 1935 INCOME TAX RETURN FOR PERCENTAGE
DEPLETION UNDER SEC. 114(B)(4) OF THE REVENUE ACT OF 1934, 48 STAT.
680, WHICH ALLOWED THE DEDUCTION FROM GROSS INCOME IN THE CASE OF
MINES, ETC., OF SPECIFIED PERCENTAGES OF GROSS INCOME, BUT NOT TO
EXCEED 50% OF THE NET INCOME COMPUTED WITHOUT REGARD TO DEPLETION
ALLOWANCE, AND REQUIRED THAT: 

"A TAXPAYER MAKING HIS FIRST RETURN UNDER THIS TITLE IN RESPECT OF A
PROPERTY SHALL STATE WHETHER HE ELECTS TO HAVE THE DEPLETION ALLOWANCE
FOR SUCH PROPERTY FOR THE TAXABLE YEAR FOR WHICH THE RETURN IS MADE
COMPUTED WITH OR WITHOUT REGARD TO PERCENTAGE DEPLETION, AND THE
DEPLETION ALLOWANCE IN RESPECT OF SUCH PROPERTY FOR SUCH YEAR SHALL BE
COMPUTED ACCORDING TO THE ELECTION THUS MADE.  IF THE TAXPAYER FAILS TO
MAKE SUCH STATEMENT IN THE RETURN, THE DEPLETION ALLOWANCE FOR SUCH
PROPERTY FOR SUCH YEAR SHALL BE COMPUTED WITHOUT REFERENCE TO
PERCENTAGE DEPLETION.  THE METHOD, DETERMINED AS ABOVE, OF COMPUTING
THE DEPLETION ALLOWANCE SHALL BE APPLIED IN THE CASE OF THE PROPERTY
FOR ALL TAXABLE YEARS IN WHICH IT IS IN THE HANDS OF SUCH TAXPAYER,
..." 

THE PIVOTAL QUESTION IS WHETHER PETITIONER'S INCOME TAX RETURN FOR
1934 OR FOR 1935 WAS THE FIRST RETURN IN RESPECT OF ITS MINING PROPERTY
WITHIN THE MEANING OF SEC. 114(B)(4).  DURING THE TAX YEAR 1934,
PETITIONER'S COPPER MINE WAS CLOSED.  IN ITS 1934 INCOME TAX RETURN,
PETITIONER REPORTED GROSS INCOME FROM THE SALE OF ORE MINED THE
PREVIOUS YEAR, BUT THE DEDUCTIONS, MOST OF WHICH WERE ATTRIBUTED TO
"SHUTDOWN EXPENSE," WERE SUCH THAT THERE WAS NO NET INCOME.  PETITIONER
CLAIMED NO DEPLETION ALLOWANCE IN THAT RETURN - DEPLETION ALLOWANCES
PRIOR TO 1933 HAD EXHAUSTED PETITIONER'S COST BASIS - AND MADE NO
STATEMENT WITH REGARD TO PERCENTAGE DEPLETION.  IN 1935, PETITIONER
DERIVED A NET PROFIT FROM THE OPERATION OF ITS MINE AND CLAIMED A
DEDUCTION FOR PERCENTAGE DEPLETION, STATING THAT IT HAD ELECTED
PERCENTAGE DEPLETION FOR THE FUTURE IN ITS 1933 RETURN, FILED UNDER
SEC. 114(B)(4) OF THE REVENUE ACT OF 1932, 47 STAT. 169.  THE
COMMISSIONER DISALLOWED THE PERCENTAGE DEPLETION DEDUCTION FOR 1935,
RULING THAT, UNDER SEC. 114(B)(4) OF THE 1934 ACT, PETITIONER'S 1934
RETURN WAS ITS FIRST RETURN IN RESPECT OF ITS MINING PROPERTY AND THAT
ITS FAILURE TO MAKE AN AFFIRMATIVE ELECTION IN THAT RETURN CONSTITUTED
AN ELECTION TO COMPUTE DEPLETION THEREAFTER WITHOUT REFERENCE TO
PERCENTAGE DEPLETION.  ACCORDINGLY, THE COMMISSIONER MADE A DEFICIENCY
DETERMINATION WHICH THE BOARD OF TAX APPEALS SUSTAINED.  THE COURT
BELOW AFFIRMED.  125 F.2D 657.  WE GRANTED CERTIORARI BECAUSE OF AN
ASSERTED CONFLICT WITH THE DECISION IN PITTSTON-DURYEA COAL CO. V.
COMMISSIONER, 117 F.2D 436.  FN2 

UNDER THIS TITLE (INCOME TAX) IN RESPECT OF A PROPERTY" WHETHER ITS
DEPLETION ALLOWANCE WAS TO BE COMPUTED WITH OR WITHOUT REGARD TO
PERCENTAGE DEPLETION, AND THE METHOD THUS CHOSEN BECAME BINDING FOR THE
SUBSEQUENT TAXABLE YEARS.  PETITIONER'S 1934 RETURN FALLS WITHIN THE
EXACT STATUTORY DEFINITION OF "FIRST RETURN."  IT WAS THE FIRST RETURN
FILED UNDER THE 1934 ACT, AND IT WAS "IN RESPECT OF" THE MINING
PROPERTY SINCE IT LISTED ITEMS OF GROSS INCOME AND DEDUCTIONS ARISING
OUT OF THAT PROPERTY.  PETITIONER'S FAILURE THERE TO STATE ITS ELECTION
FORECLOSED ANY SUBSEQUENT CLAIM TO PERCENTAGE DEPLETION.  THIS HAS BEEN
THE ADMINISTRATIVE INTERPRETATION.  ARTICLE 23(M)-5 OF REGULATIONS 86. 
FN3  WE THINK THIS REGULATION IS BINDING BECAUSE NOT ONLY IS IT
PRACTICALLY COMPELLED BY THE WORDS OF SEC. 114(B)(4), BUT ALSO IT IS A
REASONABLE INTERPRETATION WHICH, AS WILL BE SHORTLY POINTED OUT, IS
FAIR AND WORKABLE IN ITS OPERATION. 

PETITIONER ASSERTS THAT THIS INTERPRETATION FAILS TO GIVE EFFECT TO
THE MEANING OF SEC. 114(B)(4) AS A WHOLE, AND CONTENDS THAT, WHEN SUCH
EFFECT IS GIVEN, "FIRST RETURN" MUST MEAN THE FIRST RETURN IN WHICH A
DEPLETION ALLOWANCE COULD BE CLAIMED.  THE ARGUMENT FOR THIS RESULT
RUNS AS FOLLOWS:  SECTION 114(B)(4) REQUIRES THE TAXPAYER TO STATE IN
ITS FIRST RETURN WHETHER IT ELECTS TO HAVE "THE DEPLETION ALLOWANCE FOR
SUCH PROPERTY FOR THE TAXABLE YEAR FOR WHICH THE RETURN IS MADE
COMPUTED WITH OR WITHOUT REGARD TO PERCENTAGE DEPLETION," AND THEN
PROVIDES THAT "THE DEPLETION ALLOWANCE IN RESPECT OF SUCH PROPERTY FOR
SUCH YEAR SHALL BE COMPUTED ACCORDING TO THE ELECTION THUS MADE";
THEREFORE, THE "FIRST RETURN" MUST BE ONE IN WHICH PETITIONER COULD
ELECT TO HAVE THE "DEPLETION ALLOWANCE  ...  FOR THE TAXABLE YEAR"
COMPUTED WITH OR WITHOUT REFERENCE TO PERCENTAGE DEPLETION; AND, IN ITS
1934 RETURN, PETITIONER COULD NOT SO ELECT BECAUSE A PERCENTAGE
DEPLETION ALLOWANCE IS LIMITED IN ANY CASE TO 50% OF NET INCOME AND IT
HAD NO NET INCOME. 

THE FALLACY OF THIS ARGUMENT IS APPARENT, AND THE FAULT LIES IN THE
FINAL STEP.  THE STATUTE PROVIDES FOR THE ELECTION OF A METHOD OF
COMPUTATION FOR THE PRESENT AND THE FUTURE; IT DOES NOT, CONTRARY TO
PETITIONER'S ASSERTIONS, MAKE THE NECESSITY FOR ELECTION DEPEND UPON
WHETHER AN ALLOWANCE ACTUALLY RESULTS FROM THE METHOD OF COMPUTATION
CHOSEN.  PETITIONER COULD HAVE ELECTED IN 1934 TO HAVE THE DEPLETION
ALLOWANCE FO 1934 "COMPUTED WITH OR WITHOUT REGARD TO PERCENTAGE
DEPLETION," AND THE COMPUTATION COULD THEN HAVE BEEN MADE ACCORDING TO
THE METHOD CHOSEN.  IT SO HAPPENED THAT PETITIONER WAS NOT ENTITLED TO
ANY ALLOWANCE IN 1934; ITS DEPLETABLE COST HAD BEEN EXHAUSTED, AND
COMPUTATION ON THE PERCENTAGE BASIS WOULD HAVE RESULTED IN NOTHING.  SO
THE CHOICE HAD NO SIGNIFICANCE FOR THAT YEAR, BUT, THAT COULD BE
ASCERTAINED ONLY AFTER THE COMPUTATION WAS MADE.  THE IDEA THAT IT
WOULD BE ABSURD TO COMPEL AN ELECTION UNTIL A DEDUCTION ACTUALLY
RESULTED, SEE PITTSTON-DURYEA COAL CO. V. COMMISSIONER, 117 F.2D 436,
438, IS BEST ANSWERED BY THE FACT THAT THE STATUTE GAVE TAXPAYERS AN
OPPORTUNITY TO ELECT A DEPLETION PROGRAM FOR THE PRESENT AND FUTURE
YEARS; NOTHING IN IT INDICATES THAT CONGRESS WAS CONCERNED WITH WHETHER
A DEPLETION ALLOWANCE ACTUALLY RESULTED IN EACH YEAR FROM THE PROGRAM
SELECTED. 

PETITIONER'S CONTENTIONS REALLY RESOLVE INTO THE PROPOSITION THAT
"FIRST RETURN" MEANS "FIRST RETURN MADE BY A TAXPAYER HAVING NET INCOME
DERIVED FROM A PROPERTY."  BUT THE STATUTE DOES NOT SPEAK OF FIRST
RETURN SHOWING NET INCOME, AND THERE IS NOTHING TO INDICATE THAT SUCH
WAS CONGRESS' INTENTION.  FN4  FURTHERMORE, AS THE COURT BELOW POINTED
OUT, 125 F.2D 657 AT P. 659, IF PETITIONER HAD A BASIS FOR COST
DEPLETION IN 1934, IT WOULD HAVE BEEN PUT TO AN ELECTION IN THAT YEAR
EVEN THOUGH IT HAD NO NET INCOME, BECAUSE COST DEPLETION ALLOWANCE IS
IN NO MANNER DEPENDENT UPON THE EXISTENCE OF NET INCOME.  THE FACT THAT
PETITIONER'S DEPLETABLE COST WAS EXHAUSTED IS NO REASON FOR EXPANDING
THE STATUTORY DEFINITION.  SECTION 114(B)(4) IS A LIBERAL OFFER LIMITED
TO THOSE WHO MEET THE EXACT STATUTORY TERMS.  RILEY INVESTMENT CO. V.
COMMISSIONER, 311 U.S. 55. 

STRONG PRACTICAL CONSIDERATIONS ALSO SUPPORT THE COMMISSIONER'S
CONSTRUCTION OF THE STATUTE AND WARRANT REJECTION OF PETITIONER'S
"FIRST RETURN WITH NET INCOME" THEORY.  ALL TAXPAYERS ARE PUT ON AN
EQUAL BASIS IF THEY MUST ELECT THEIR DEPLETION PROGRAM IN THE FIRST
RETURN FILED "IN RESPECT OF A PROPERTY"; A TAXPAYER, SITUATED AS
PETITIONER, IS NOT THEN FREE TO DEFER ELECTION UNTIL IT HAS NET INCOME
AT SOME FUTURE DATE WHEN CONDITIONS MAY BE SUCH THAT ITS ELECTION CAN
BE MADE MORE ADVISEDLY THAN THAT OF ITS COMPETITORS.  SECONDLY,
ADMINISTRATIVE SIMPLICITY AND CERTAINTY ARE BEST ACHIEVED BY THE
COMMISSIONER'S INTERPRETATION.  IF, BY "FIRST RETURN MADE BY A TAXPAYER
HAVING NET INCOME DERIVED FROM A PROPERTY," PETITIONER MEANS FIRST
RETURN FOR A YEAR IN WHICH THERE ACTUALLY WAS NET INCOME, CF. KEHOE
BERGE COAL CO. V. COMMISSIONER, 117 F.2D 439, IT COULD NOT BE KNOWN IN
SOME CASES WHETHER A TAXPAYER WAS PUT TO ITS ELECTION IN 1934 OR A
LATER YEAR UNTIL AFTER FINALLY DETERMINING, PERHAPS AFTER PROTRACTED
LITIGATION, WHETHER OR NOT THE TAXPAYER HAD ACTUAL NET INCOME IN 1934. 
THE UNCERTAINTY AND CONFUSION THEREBY CREATED WOULD BE MOST
UNDESIRABLE; A TAXPAYER COULD NOT INTELLIGENTLY PLAN ITS OPERATIONS,
AND THE BUREAU OF INTERNAL REVENUE WOULD BE COMPELLED TO KEEP OPEN ALL
THE RETURNS FOR SUBSEQUENT YEARS IN ORDER TO CHECK THE LATER DEPLETION
DEDUCTIONS.  IF IT IS PETITIONER'S CONTENTION THAT THE CRITICAL FACT OF
NET INCOME IS DISCLOSED BY THE FACE OF THE RETURN, THE OBLIGATION TO
STATE AN ELECTION WOULD DEPEND TO SOME EXTENT UPON THE ERRORS OF THE
TAXPAYER, A CONSEQUENCE WHICH IT IS NOT TO BE PRESUMED THAT CONGRESS
INTENDED. 

THE JUDGMENT BELOW IS AFFIRMED. 

FN2  IN GRANTING THE WRIT, WE EXCLUDED ARGUMENT ON THE POINT, DECIDED
ADVERSELY TO PETITIONER BELOW, THAT ITS ELECTION TO TAKE PERCENTAGE
DEPLETION IN ITS 1933 RETURN UNDER THE REVENUE ACT OF 1932 MADE
UNNECESSARY A NEW ELECTION UNDER THE REVENUE ACT OF 1934. 

FN3  THIS ARTICLE PROVIDES IN PART AS FOLLOWS:  "IN HIS FIRST RETURN
MADE UNDER TITLE I OF THE ACT (FOR A TAXABLE YEAR BEGINNING AFTER
DECEMBER 31, 1933) THE TAXPAYER MUST STATE AS TO EACH PROPERTY WITH
RESPECT TO WHICH THE TAXPAYER HAS ANY ITEM OF INCOME OR DEDUCTION
WHETHER HE ELECTS TO HAVE THE DEPLETION ALLOWANCE FOR EACH SUCH
PROPERTY FOR THE TAXABLE YEAR COMPUTED WITHOUT REFERENCE TO PRECENTAGE
DEPLETION.  ...  IF THE TAXPAYER FAILS TO MAKE SUCH STATEMENT IN THE
RETURN IN WHICH THE ELECTION SHOULD BE SO INDICATED, THE DEPLETION
ALLOWANCE FOR THE YEAR FOR WHICH AN ELECTION MUST BE FIRST EXERCISED
AND FOR ALL SUCCEEDING TAXABLE YEARS WILL BE COMPUTED WITHOUT REFERENCE
TO PERCENTAGE DEPLETION." 

FN4  PETITIONER RELIES UPON THE REMARKS OF REPRESENTATIVE DISNEY, WHO
OFFERED AN AMENDMENT TO SEC. 114(B)(4) OF THE INTERNAL REVENUE CODE, AS
PART OF THE REVENUE ACT OF 1942, WHICH WOULD HAVE WRITTEN THE
PETITIONER'S INTERPRETATION INTO THE STATUTE WITH THE EXPLANATION THAT
THE AMENDEMENT CLARIFIED THE ORIGINAL CONGRESSIONAL INTENT.  HEARINGS
BEFORE HOUSE COMMITTEE ON WAYS AND MEANS ON REVENUE REVISION OF 1942,
77TH CONG., 2D SESS., P. 3489.  HOWEVER, THIS AMENDMENT WAS REJECTED IN
COMMITTEE.  SECTION 145(A) OF THE REVENUE ACT OF 1942, APPROVED OCTOBER
21, 1942, ELIMINATES THE NECESSITY OF ELECTION, BUT NOTHING IN ITS
LEGISLATIVE HISTORY CASTS ANY LIGHT UPON OUR PROBLEM. 
..END :





UNITED CARBON CO. V. BINNEY CO., 317 U.S. 228 


NO. 71.  ARGUED NOVEMBER 13, 1942.  - DECIDED DECEMBER 7, 1942.  - 125
F.2D 255, 126 F.2D 3, REVERSED. 


1.  PRODUCT CLAIMS OF PATENT NO. 1,889,429, TO WEIGAND AND VENUTO,
"1.  SUBSTANTIALLY PURE CARBON BLACK IN THE FORM OF COMMERCIALLY
UNIFORM, COMPARATIVELY SMALL, ROUNDED, SMOOTH AGGREGATES HAVING A
SPONGY OR POROUS INTERIOR.  2.  AS AN ARTICLE OF MANUFACTURE, A PELLET
OF APPROXIMATELY ONE-SIXTEENTH OF AN INCH IN DIAMETER AND FORMED OF A
POROUS MASS OF SUBSTANTIALLY PURE CARBON BLACK," HELD, BAD FOR
INDEFINITENESS.  P. 232. 

2.  A PATENTEE MAY NOT BROADEN HIS CLAIMS BY DESCRIBING THE PRODUCT
IN TERMS OF FUNCTION.  P. 234. 

3.  AN INVENTION MUST BE CAPABLE OF ACCURATE DEFINITION, AND IT MUST
BE ACCURATELY DEFINED, TO BE PATENTABLE.  P. 237. 

UNITED CARBON CO. ET AL. V. BINNEY & SMITH CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 316 U.S. 657, TO REVIEW THE REVERSAL OF A JUDGMENT, 37
F.SUPP.  779, DISMISSING A SUIT FOR INFRINGEMENT OF A PATENT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

RESPONDENT SUED FOR INFRINGEMENT OF PATENT NO. 1,889,429, ISSUED TO
WEIGAND AND VENUTO, RELATING TO CARBON BLACK IN AGGREGATED FORM AND A
PROCESS FOR ITS CONVERSION TO THAT FORM.  ITS COMPLAINT WAS
PARTICULARIZED TO APPLY ONLY TO CLAIMS 1 AND 2 OF THE PATENT, WHICH ARE
PRODUCT CLAIMS AND NOT PROCESS CLAIMS.  THE DISTRICT COURT FOUND THESE
CLAIMS INVALID AS LACKING NOVELTY AND INVENTION AND BECAUSE THEY FAILED
TO DEFINE THE PRODUCT ASSERTED TO HAVE BEEN INVENTED IN SUCH CLEAR,
DEFINITE, AND EXACT TERMS AS REQUIRED BY PATENT LAW.  IT ALSO FOUND NO
INFRINGEMENT.  37 F.SUPP.  779.  THE CIRCUIT COURT OF APPEALS HELD TO
THE CONTRARY ON EACH OF THESE PROPOSITIONS AND REVERSED.  125 F.2D
255.  THE IMPORTANCE OF THE QUESTIONS IN THE CASE PROMPTED US TO GRANT
CERTIORARI.  316 U.S. 657. 

CARBON BLACK HAS BEEN MANUFACTURED FROM NATURAL GAS SINCE THE 1870'S.
AT PRESENT THE MOST EXTENSIVE OF ITS MANY USES IS AS A BINDER IN
AUTOMOBILE TIRES.  FN1  THE PARTICLES OF CARBON BLACK IN ITS ORIGINAL
FORM ARE EXTREMELY FINE AND DISPERSIBLE.  THEY ARE SMALLER THAN THE
LENGTH OF A LIGHT WAVE, HAVING A DIAMETER OF ABOUT ONE-MILLIONTH OF AN
INCH.  ONE POUND OF THEM IS SAID TO PRESENT SURFACES SUFFICIENT TO
COVER 12 OR 13 ACRES.  UNPROCESSED CARBON BLACK WEIGHS BUT TEN POUNDS
OR LESS PER CUBIC FOOT. 

THE FINENESS AND DISPERSIBILITY OF THE SUBSTANCE CAUSES IT TO RAISE
IN CLOUDS OF DUST WHEN HANDLED, WITH CONSEQUENT LOSSES, DISCOMFORT TO
WORKMEN, AND DIFFICULTIES IN MANUFACTURING PROCESSES.  SINCE 1915, WHEN
CARBON BLACK FIRST CAME TO BE WIDELY USED IN THE MANUFACTURE OF RUBBER,
MANY ATTEMPTS HAVE BEEN MADE TO COPE WITH THE DUST PROBLEM.  IN MANY
CASES, MIXING ROOMS WERE SEGREGATED AT GREAT EXPENSE FROM OTHER PARTS
OF RUBBER FACTORIES, AND THE MILLS WHERE THE CARBON BLACK WAS MIXED
INTO THE RUBBER WERE ENCLOSED TO CONFINE THE CLOUDS OF DUST. 

EFFORTS WERE MADE TO PREVENT AS WELL AS TO CONTROL THE DUST. 
COMPRESSING THE CARBON BLACK TO FORCE OUT THE AIR AND INCREASE ITS
DENSITY MET WITH SOME, BUT ONLY INDIFFERENT, SUCCESS.  ATTEMPTS WERE
MADE TO PREVENT DUST BY THE USE OF BINDERS IN THE CARBON BLACK TO MAKE
THE PARTICLES ADHERE.  THESE WERE NOT SATISFACTORY, SINCE THE BINDERS
WERE UNWANTED AND SOMETIMES INJURIOUS SUBSTANCES AND, AT BEST, FOREIGN
MATTER TO RUBBER FORMULAS.  WETTING AND DRYING THE CARBON BLACK ALSO
PROVED UNSATISFACTORY, SINCE THIS CAUSED THE PARTICLES TO ADHERE IN
SUCH MANNER THAT THE AGGREGATE PRODUCT WAS NOT SUFFICIENTLY FRIABLE
(I.E., BREAKABLE) AND DISPERSIBLE WHEN MIXED WITH OTHER SUBSTANCES. 

WEIGAND AND VENUTO EXPERIMENTED EXTENSIVELY, AND THE PATENT IN
LITIGATION IS THE OUTCOME.  THEY MIXED CARBON BLACK WITH A LIQUID SUCH
AS WATER; DISPLACED THE WATER WITH ANOTHER LIQUID, SUCH AS GASOLINE,
WHICH WAS SUBSTANTIALLY IMMISCIBLE WITH THE FIRST AND HAD A GREATER
ABILITY TO WET THE CARBON PARTICLES; AGITATED THE MIXTURE UNTIL THE
WATER WAS SUBSTANTIALLY FREE FROM CARBON; AND FINALLY REMOVED THE
GASOLINE BY EVAPORATION.  AS IT APPARENTLY MUST IN ORDER TO ASSERT
INVENTION AND INFRINGEMENT, RESPONDENT ARGUES THAT WEIGAND AND VENUTO
SOLVED THE PROBLEM OF CARBON BLACK DUST BY A PRODUCT CONSISTING OF
CARBON BLACK AGGREGATES FORMED WITHOUT THE USE OF ANY BINDER,
SUFFICIENTLY HARD AND FLOWABLE TO PREVENT THE FORMATION OF DUST, YET
SUFFICIENTLY FRIABLE AND DISPERSIBLE FOR USE AS A COMPONENT IN THE
MANUFACTURE OF RUBBER AND OTHER PRODUCTS. 

MANUFACTURE WAS UNDERTAKEN, ONE GLAXNER BEING EMPLOYED TO PUT INTO
USE THE PROCESS TAUGHT BY THIS PATENT.  HE SOON BETTERED HIS
INSTRUCTION BY DEVISING A SIMPLER AND MUCH LESS EXPENSIVE PROCESS
EMPLOYING BUT ONE LIQUID.  HIS PROCESS WAS THE SUBJECT OF ANOTHER
PATENT,  FN2  AND AT ONCE SUPERSEDED THAT OF THE PATENT IN SUIT, WHICH
THEREUPON BECAME OBSOLETE.  SEVERAL OTHER PROCESSES TO ACHIEVE VERY
SIMILAR RESULTS, INCLUDING THOSE USED BY THE PETITIONER, HAVE ALSO BEEN
DEVELOPED AND PATENTED.  FN3  COMMERCIAL SUCCESS OF RESPONDENT'S
PROCESS WAS SHORT-LIVED, AND THE REALLY IMPRESSIVE COMMERCIAL SUCCESS
HAS BEEN ACHIEVED SINCE THE DEVELOPMENT OF THE GLAXNER PROCESS.  FN4 

THE PRODUCT CLAIMS WHICH RESPONDENT SAYS THE PETITIONER'S PRODUCT
INFRINGED, REGARDLESS OF THE PROCESS BY WHICH IT WAS MADE, READ AS
FOLLOWS:  "1.  SUBSTANTIALLY PURE CARBON BLACK IN THE FORM OF
COMMERCIALLY UNIFORM, COMPARATIVELY SMALL, ROUNDED, SMOOTH AGGREGATES
HAVING A SPONGY OR POROUS INTERIOR.  2.  AS AN ARTICLE OF MANUFACTURE,
A PELLET OF APPROXIMATELY ONE-SIXTEENTH OF AN INCH IN DIAMETER AND
FORMED OF A POROUS MASS OF SUBSTANTIALLY PURE CARBON BLACK." 

THAT THE APPLICANT FOR A PATENT "SHALL PARTICULARLY POINT OUT AND
DISTINCTLY CLAIM THE PART, IMPROVEMENT, OR COMBINATION WHICH HE CLAIMS
AS HIS INVENTION OR DISCOVERY."  AS THE COURT RECENTLY STATED IN
GENERAL ELECTRIC CO. V. WABASH CORP., 304 U.S. 364, 369: 

"PATENTS, WHETHER BASIC OR FOR IMPROVEMENTS, MUST COMPLY ACCURATELY
AND PRECISELY WITH THE STATUTORY REQUIREMENTS AS TO CLAIMS OF INVENTION
OR DISCOVERY.  THE LIMITS OF A PATENT MUST BE KNOWN FOR THE PROTECTION
OF THE PATENTEE, THE ENCOURAGEMENT OF THE INVENTIVE GENIUS OF OTHERS
AND THE ASSURANCE THAT THE SUBJECT OF THE PATENT WILL BE DEDICATED
ULTIMATELY TO THE PUBLIC.  THE STATUTE SEEKS TO GUARD AGAINST
UNREASONABLE ADVANTAGES TO THE PATENTEE AND DISADVANTAGES TO OTHERS
ARISING FROM UNCERTAINTY AS TO THEIR RIGHTS.  THE INVENTOR MUST 'INFORM
THE PUBLIC DURING THE LIFE OF THE PATENT OF THE LIMITS OF THE MONOPOLY
ASSERTED, SO THAT IT MAY BE KNOWN WHICH FEATURES MAY BE SAFELY USED OR
MANUFACTURED WITHOUT A LICENSE AND WHICH MAY NOT.'  THE CLAIMS 'MEASURE
THE INVENTION.'  ...  IN A LIMITED FIELD THE VARIANT MUST BE CLEARLY
DEFINED." 

THE DISTRICT COURT FOUND THAT THE CLAIMS DID NOT MEET THESE
REQUIREMENTS, AND THE CIRCUIT COURT OF APPEALS HELD THAT THEY DID. 
MUCH TESTIMONY WAS DIRECTED TO THIS QUESTION AT THE TRIAL, AND IT HAS
BEEN DISCUSSED IN THE BRIEFS AND ARGUMENT IN THIS COURT.  PETITIONER
SEEKS REVERSAL ON THE GROUNDS OF ANTICIPATION AND NON-INFRINGEMENT. 
THE SCOPE AND SUFFICIENCY OF THE CLAIMS IN SUIT NECESSARILY PRESENT
THEMSELVES AS PRELIMINARY PROBLEMS IN THE RESOLUTION OF THESE ULTIMATE
ISSUES.  THE COURTS IN DETERMINING THE QUESTIONS OF INVENTION AND
INFRINGEMENT BROUGHT TO THEM BY RESPONDENT, NO LESS THAN THE PARTIES
LITIGANT, NEED AND MAY INSIST UPON THE PRECISION ENJOINED BY THE
STATUTE.  TO SUSTAIN CLAIMS SO INDEFINITE AS NOT TO GIVE THE NOTICE
REQUIRED BY THE STATUTE WOULD BE IN DIRECT CONTRAVENTION OF THE PUBLIC
INTEREST WHICH CONGRESS THEREIN RECOGNIZED AND SOUGHT TO PROTECT.  CF.
MUNCIE GEAR WORKS V. OUTBOARD, MARINE & MFG. CO., 315 U.S. 759. 

HERE, AS IN MANY OTHER CASES, IT IS DIFFICULT FOR PERSONS NOT SKILLED
IN THE ART TO MEASURE THE INCLUSIONS OR TO APPRECIATE THE DISTINCTIONS
WHICH MAY EXIST IN THE WORDS OF A CLAIM WHEN READ IN THE CONTEXT OF THE
ART ITSELF.  THE CLEAREST EXPOSITION OF THE SIGNIFICANCE WHICH THE
TERMS EMPLOYED IN THE CLAIMS HAD FOR THOSE SKILLED IN THE ART WAS GIVEN
BY THE TESTIMONY OF WEIGAND, ONE OF THE PATENTEES, WHOM RESPONDENT
CALLED AS ITS WITNESS.  WEIGAND WAS EMPLOYED AS DIRECTOR OF RESEARCH OF
THE COLUMBIAN CARBON COMPANY, WHOSE STOCK RESPONDENT OWNED, AND FOR
WHOM RESPONDENT ACTED AS SOLE SELLING AGENT.  HIS TESTIMONY IN THIS
RESPECT WAS GIVEN PRINCIPALLY UPON CROSSEXAMINATION, BUT IT WAS IN NO
WISE IMPEACHED OR CONTRADICTED, AND IS BORNE OUT BY THAT OF OTHER
WITNESSES.  FROM IT WE LEARN THAT "SUBSTANTIALLY PURE" REFERS, NOT TO
FREEDOM FROM ASH AND OTHER IMPURITIES, BUT RATHER TO FREEDOM FROM
BINDERS; "COMMERCIALLY UNIFORM" MEANS ONLY THE DEGREE OF UNIFORMITY
DEMANDED BY BUYERS; "COMPARATIVELY SMALL" IS NOT SHOWN TO ADD ANYTHING
TO THE CLAIMS, FOR NOWHERE ARE WE ADVISED WHAT STANDARD IS INTENDED FOR
COMPARISONS; "SPONGY" AND "POROUS" ARE SYNONYMOUS, AND RELATE TO THE
DENSITY AND GAS CONTENT OF AGGREGATES OF CARBON BLACK.  ALTHOUGH
SPONGINESS OR POROSITY IS NOT A NECESSARY ATTRIBUTE OF A FRIABLE
SUBSTANCE, IT DOES CONTRIBUTE TO THE FRIABILITY OF AGGREGATES OF CARBON
BLACK.  IT IS OF VALUE ONLY IN THAT REGARD.  A SPONGY OR POROUS
AGGREGATE OF CARBON BLACK MAY BE SO FRIABLE AS TO PERMIT OF THE
FORMATION OF DUST; AND, ON THE OTHER HAND, IT IS CONCEIVABLE THAT IT
MIGHT NOT BE SUFFICIENTLY FRIABLE TO MIX SATISFACTORILY WITH OTHER
SUBSTANCES SUCH AS THOSE USED IN THE MANUFACTURE OF RUBBER PRODUCTS. 
THE CORRECT DEGREE OF FRIABILITY CAN BE ASCERTAINED ONLY BY TESTING THE
PERFORMANCE OF THE PRODUCT IN ACTUAL PROCESSES OF MANUFACTURE OF
PRODUCTS OF WHICH CARBON BLACK IS A COMPONENT.  A "PELLET" OF CARBON
BLACK IS "A SPHEROIDAL SHAPED AGGREGATE THAT HAS SUBSTANCE AND STRENGTH
TO IT."  FOR "STRENGTH" "WE HAVE THIS ROUGH AND READY TEST:  DOES IT
SURVIVE UNDER GENTLE RUBBING OF THE FINGERS.  I WOULD NOT SAY THAT IS
AN ADEQUATE TEST TO PREDICATE RUBBER BEHAVIOR ON, BUT IT IS A ROUGH AND
READY TEST"; AND IF IT RESPONDS TO THAT TEST IT IS A PELLET WITHIN THE
MEANING OF THE CLAIM.  FINALLY, WHAT ON FIRST IMPRESSION APPEARS TO BE
REASONABLE CERTAINTY OF DIMENSION DISAPPEARS WHEN WE LEARN THAT
"APPROXIMATELY ONE-SIXTEENTH OF AN INCH IN DIAMETER" INCLUDES A
VARIATION FROM APPROXIMATELY 1/4TH TO 1/100TH OF AN INCH. 

SO READ, THE CLAIMS ARE BUT INACCURATE SUGGESTIONS OF THE FUNCTIONS
OF THE PRODUCT, AND FALL AFOUL OF THE RULE THAT A PATENTEE MAY NOT
BROADEN HIS CLAIMS BY DESCRIBING THE PRODUCT IN TERMS OF FUNCTION. 
HOLLAND FURNITURE CO. V. PERKINS GLUE CO., 277 U.S. 245, 256-258;
GENERAL ELECTRIC CO. V. WABASH CORP., SUPRA, AT 371-372. 

RESPONDENT URGES THAT THE CLAIMS MUST BE READ IN THE LIGHT OF THE
PATENT SPECIFICATION,  FN5 AND THAT AS SO READ THEY ARE SUFFICIENTLY
DEFINITE.  ASSUMING THE PROPRIETY OF THIS METHOD OF CONSTRUCTION, CF.
GENERAL ELECTRIC CO. V. WABASH CORP., SUPRA, AT 373-375, IT DOES NOT
HAVE THE EFFECT CLAIMED, FOR THE DESCRIPTION IN THE SPECIFICATION IS
ITSELF ALMOST ENTIRELY IN TERMS OF FUNCTION.  IT IS THEREFORE
UNNECESSARY TO CONSIDER WHETHER THE REJECTION OF CERTAIN CLAIMS  FN6 BY
THE PATENT OFFICE MIGHT IN TURN DEPRIVE THE SPECIFICATION OF ANY
CURATIVE EFFECT IN THIS REGARD.  CF. SCHRIBER-SCHROTH CO. V. CLEVELAND
TRUST CO., 311 U.S. 211; EXHIBIT SUPPLY CO. V. ACE PATENTS CORP., 315
U.S. 126. 

THE STATUTORY REQUIREMENT OF PARTICULARITY AND DISTINCTNESS IN CLAIMS
IS MET ONLY WHEN THEY CLEARLY DISTINGUISH WHAT IS CLAIMED FROM WHAT
WENT BEFORE IN THE ART AND CLEARLY CIRCUMSCRIBE WHAT IS FORECLOSED FROM
FUTURE ENTERPRISE.  A ZONE OF UNCERTAINTY WHICH ENTERPRISE AND
EXPERIMENTATION MAY ENTER ONLY AT THE RISK OF INFRINGEMENT CLAIMS WOULD
DISCOURAGE INVENTION ONLY A LITTLE LESS THAN UNEQUIVOCAL FORECLOSURE OF
THE FIELD.  MOREOVER, THE CLAIMS MUST BE REASONABLY CLEAR-CUT TO ENABLE
COURTS TO DETERMINE WHETHER NOVELTY AND INVENTION ARE GENUINE. 
CONGRESS HAS PROVIDED THAT A PATENT MAY BE AWARDED ONLY FOR A NEW AND
USEFUL MANUFACTURE "NOT PATENTED OR DESCRIBED IN ANY PRINTED
PUBLICATION IN THIS OR ANY FOREIGN COUNTRY, BEFORE HIS INVENTION OR
DISCOVERY THEREOF."  R.S. SEC. 4886, 35 U.S.C. SEC. 31.  WHILE WE DO
NOT FIND IT NECESSARY TO CONSIDER QUESTIONS OF NOVELTY AND INVENTION,
IN THE VIEW WE TAKE OF THE CLAIMS IN SUIT, A MERE READING OF PRIOR ART
PATENTS SHOWS HOW, IF THEY ARE READ WITH THE LIBERALITY AND
INCLUSIVENESS CLAIMED FOR THOSE IN SUIT, THEY DESCRIBE PRODUCTS, IF NOT
IDENTICAL, AT LEAST OF CONFUSING SIMILARITY.  FN7  WHETHER THE
VAGUENESS OF THE CLAIM HAS ITS SOURCE IN THE LANGUAGE EMPLOYED OR IN
THE SOMEWHAT INDETERMINATE CHARACTER OF THE ADVANCE CLAIMED TO HAVE
BEEN MADE IN THE ART IS NOT MATERIAL.  AN INVENTION MUST BE CAPABLE OF
ACCURATE DEFINITION, AND IT MUST BE ACCURATELY DEFINED, TO BE
PATENTABLE.  CF. GENERAL ELECTRIC CO. V. WABASH CORP., SUPRA, AT 372
373. 

WE ARE OF OPINION THAT THE CLAIMS IN LITIGATION ARE BAD FOR
INDEFINITENESS, AND HAVE NO OCCASION TO CONSIDER QUESTIONS OF NOVELTY,
INVENTION, AND INFRINGEMENT.  THE JUDGMENT BELOW IS REVERSED. 

FN1  CARBON BLACK IS ALSO USED AS AN INGREDIENT IN VARIOUS RUBBER,
WAX AND RESIN COMPOSITIONS, PHONOGRAPH RECORDS, PAINTS AND LACQUERS,
PRINTER'S INK, AND CARBON PAPER. 

FN2  GLAXNER, RE. NO. 21,379. 

FN3  BILLINGS & OFFUTT, RE. NO. 19,750; NOS. 2,039,766, 2,120,540,
2,120,541; PRICE, NO. 2,127,137; HELLER & SNOW, NO. 2,131,686; OFFUTT,
NO. 2,134,950; GROTE, RE. NO. 21,390. 

FN4  COMMERCIAL SUCCESS MAY BE GAUGED BY REFERENCE TO THE FOLLOWING
STATISTICS ON THE SALES OF POUNDS OF CARBON BLACK AGGREGATES:

               SALES BY PETITIONER

                                        SALES BY

      SALES BY                                       CABOT CO.

  YEAR       RESPONDENT    "EXTRUSION"  "SAYRE"      "CABOT"
"CABOT"

                           PROCESS* PROCESS  $*    PROCESS  $*
PROCESS    1929---------      20,000 

1930---------     164,000 

1931---------     194,000        (TOTAL GROSS SALES PRICE, ABOUT
$2,000.) 

1932---------     281,000    (IN THIS YEAR THE WEIGAND AND VENUTO
PROCESS

                           WAS SUPERSEDED BY THE GLAXNER PROCESS,
WHICH

         MADE POSSIBLE THE ELIMINATION OF A PRICE

                                                      PREMIUM.) 

1933---------     800,000 ------------------------------------
8,000,000    1934---------   3,300,000       2,000 --------------------
--- 23,000,000 

1935---------  15,000,000      84,875 ------------  3,656,294
39,000,000 

1936---------  30,000,000   7,031,000 ------------ 18,135,756
62,000,000 

1937---------  44,000,000  26,205,000     680,363  11,928,742
58,000,000 

1938---------  53,000,000  29,858,000   3,747,538  11,298,887
45,000,000 

1939---------  97,000,000  48,578,000  17,752,439  11,533,200
73,000,000 

*IN THIS PROCESS, CARBON BLACK MIXED WITH WATER IS FORCED THROUGH
SMALL APERBTURES, DRIED, AND BROKEN INTO SHORT CYLINDERS. 

$*  THIS PROCESS, LIKE THE GLAXNER PROCESS, EMPLOYS BUT ONE LIQUID,
WATER, AND AGITATION. 

$*  THIS IS A "DRY" PROCESS, EMPLOYING ONLY AGITATION TO CAUSE THE
PARTICLES OF CARBON BLACK TO ADHERE.  IT IS THE SUBJECT OF A NUMBER OF
PATENTS, THE FIRST OF WHICH WAS APPLIED FOR BY BILLINGS AND OFFUTT ON
JULY 18, 1932 AND ISSUED AS NO. 2,120,540.  MANUFACTURE IS UNDER
LICENSE OF THE CABOT COMPANY, PATENT OWNER. 

FN5  THIS STATES IN PERTINENT PART THAT: 

"THE MAIN OBJECT OF OUR INVENTION IS TO SECURE CARBON BLACK HAVING
THE DESIRED DISPERSIVE PROPERTIES, GREATER DENSITY, FREEDOM FROM DUST,
FREEDOM FROM GRITTY PARTICLES, LESS ABSORBED OR OCCLUDED GASES, REDUCED
OIL ABSORPTION THAN THE ORDINARY POWDER FORM, AND CAPABLE OF
CONSIDERABLE HANDLING WITHOUT CRUSHING OR DUSTING. 

     .         .         .         .   . 

"THIS PROCESS, IF CARRIED OUT UNDER CERTAIN CONDITIONS, CAUSES THE
CARBON BLACK TO FORM INTO PELLETS WHICH ARE HARD ENOUGH TO STAND ANY
ORDINARY SHIPMENT OR HANDLING WITHOUT DUSTING, FLYING OR BREAKING DOWN,
AND WHICH AT THE SAME TIME ARE EASILY CRUSHED BY MODERATE PRESSURE, AS
BETWEEN THE FINGERS OR BY THE PRESSURES COMMONLY EMPLOYED IN THE ROLLS
OF RUBBER COMPOUNDING MACHINERY, PRINTER'S INK MIXERS AND THE LIKE. 
THE CRUSHED PARTICLES HAVE SUBSTANTIALLY THEIR ORIGINAL SOFTNESS AND
THE MATERIAL DISPERSES FREELY WITHOUT LEAVING ANY PARTICLES OF
UNDISPERSED CARBON IN THE MATERIAL. 

"WHILE THE PELLET FORM IS A VERY CONVENIENT FORM OF THE CARBON BLACK,
THE SHAPE OF THE PARTICLES IS NOT THE MOST IMPORTANT CHARACTERISTIC OF
THIS NOVEL CARBON BLACK. 

     .         .         .         .         . 

"THE PELLETS ARE VERY POROUS, OF SUBSTANTIALLY SPHERICAL OR GLOBULAR
FORM, HAVE A SMOOTH SOMEWHAT LUSTROUS OUTER SURFACE WHICH IS NOT EASILY
BROKEN BY HANDLING, ARE MORE COMPACT THAN UNTREATED CARBON, ARE FRAGILE
UNDER LIGHT PRESSURE, AND MAY BE EASILY REDUCED TO SOFT MINUTE
PARTICLES WHICH CANNOT BE TOLD FROM THE ORIGINAL PARTICLES EXCEPT THAT
POSSIBLY THEY HAVE A MORE UNCTUOUS FEEL.  THEY SOMEWHAT RESEMBLE LEAD
SHOT AND MAY BE ROLLED IN THE HAND WITHOUT DIRTYING OR DUSTING. 
APPARENTLY THE OUTER SURFACE PORTION OR SHELL OF EACH PELLET IS
SLIGHTLY MORE COMPACT THAN THE INNER PART, BUT STILL POROUS. 

"IN SHIPPING OR STORING, WE FIND THAT APPROXIMATELY TWICE THE NUMBER
OF POUNDS OF THESE PELLETS CAN BE PLACED IN A CONTAINER OF A GIVEN SIZE
THAN IS THE CASE WITH THE UNTREATED CARBON BLACK.  THUS, EXPENSE IS
REDUCED FOR SHIPMENT OR STORAGE. 

     .         .      .         .         . 

"THERE ARE VARIOUS FACTORS WHICH ENTER INTO THE PROCESS AND THESE MAY
BE VARIED TO GET THE PELLETS HARDER OR SOFTER OR LARGER OR SMALLER. 
AMONG THESE FACTORS ARE THE THICKNESS OF THE PASTE, THE AMOUNT OF
GASOLINE USED, THE ADDING OF THE GASOLINE IN BULK OR A LITTLE AT A
TIME, SPEED OF AGITATION, TEMPERATURE, TYPE OF GASOLINE USED, AND
CHARACTER OF THE CARBON BLACK. 

     .         .         . .         . 

"IF SMALL PELLETS ARE DESIRED, A LESSER AMOUNT OF GASOLINE OR OTHER
LIQUID SHOULD BE USED IN RESPECT TO THE AMOUNT OF WATER AND CARBON, AND
GREATER AGITATION SHOULD BE EMPLOYED.  TO SECURE LARGE PELLETS, WE USE
A LARGER AMOUNT OF GASOLINE AND SLOWER AGITATION.  IN PRACTICE, WE DO
NOT CONSIDER A SIZE LARGER THAN ONE-QUARTER OF AN INCH DESIRABLE. 
THERE ARE MANY KINDS, GRADES OR VARIETIES OF CARBON BLACK AND OFTEN
IDENTIFICATION OF THE PARTICULAR KIND OR GRADE IS DIFFICULT.  WITH OUR
IMPROVED PROCESS THE DIFFERENT KINDS OR GRADES MAY BE MADE INTO PELLETS
OF DIFFERENT SIZES SO THAT IDENTIFICATION IS FACILITATED, FOR INSTANCE,
VERY SMALL PELLETS MAY BE MADE FOR PRINTER'S INK AND LARGER ONES FOR
RUBBER, ETC." 

FN6  TO MEET OBJECTIONS OF THE EXAMINER, THE FOLLOWING PRODUCT CLAIMS
WERE WITHDRAWN IN COURSE OF PROSECUTION OF THE APPLICATION: 

"4. A PELLET FORMED OF (SUBSTANTIALLY PURE)*  SOFT CARBON BLACK
PARTICLES, THE PELLET BEING SUFFICIENTLY HARD TO WITHSTAND ORDINARY
SHIPMENT OR HANDLING, BUT READILY BREAKING DOWN TO A FINE STATE OF
SUBDIVISION UPON THE APPLICATION OF SLIGHT PRESSURE. 

*ADDED BY AMENDMENT. 

"8.  SOFT CARBON BLACK PARTICLES COHERING IN SMALL MASSES OF
SUBSTANTIALLY UNIFORM SIZE AND HAVING SMOOTH OUTER SURFACES. 

"2.  CARBON BLACK IN THE FORM OF PELLETS OF SPONGE-LIKE OR POROUS
STRUCTURE. 

"7.  A CARBON BLACK PELLET FORMED OF SOFT CARBON BLACK, THE PELLET
HAVING SUFFICIENT HARDNESS TO WITHSTAND ORDINARY SHIPMENT OR HANDLING
WITHOUT DUSTING, BUT SUFFICIENTLY FRAGILE TO PERMIT REDUCTION TO THE
ORIGINAL FINE STATE OF SUBDIVISION UPON THE APPLICATION OF LIGHT
PRESSURE." 

FN7  THE PRIOR KNOWLTON AND HOFFMAN PATENT, NO. 1,286,024, STATED IN
THE SPECIFICATION THAT "INSTEAD OF USING THE LAMPBLACK IN ITS NATURAL
CONDITION, WE PREPARE AND TREAT THE FINE POWDER SO AS TO CAUSE ITS
CONCRETION INTO FRIABLE GRAINS OR SMALL LUMPS, DRY AND SUBSTANTIALLY
FREE FROM DUST, AND IN THIS FORM INCORPORATE IT WITH THE RUBBER ON THE
ROLLER MILL  ...  THE FRIABILITY OF THE LUMPS OR GRAINS PERMITTING A
UNIFORM DISTRIBUTION OF THE FILLER THROUGHOUT THE RUBBER."  CLAIM NO. 7
OF THIS PATENT IS:  "THE METHOD OF COMPOUNDING RUBBER WITH LAMPBLACK
WHICH CONSISTS IN MIXING THE LAMPBLACK WITH WATER AND A BINDER,
PRODUCING A GRANULAR CONDITION, EVAPORATING THE WATER, AND
INCORPORATING THE DRY, GRANULAR LAMPBLACK WITH RUBBER ON A HEATED
MIXING MILL." 

CLAIM NO. 10 OF THE PRIOR COFFIN AND KEEN PATENT, NO. 1,561,971, IS:
"AS A NEW ARTICLE OF MANUFACTURE, DRIED PULVERULENT MATERIAL IN THE
FORM OF VERY SMALL INDIVIDUALLY DRIED FRIABLE GLOBULAR MASSES COMPOSED
OF LIGHTLY COHERING PARTICLES OF THE MATERIAL." 
..END :







HUGHES V. WENDEL, 317 U.S. 134 


NO. 176.  DECIDED NOVEMBER 16, 1942.  - 139 OHIO ST. 632, 41 N.E.2D 702,
APPEAL DISMISSED. 


SINCE THE RECORD DOES NOT CONTAIN THE CONTRACT NOR AN ADEQUATE SUMMARY
THEREOF, APPELLANT'S CLAIM OF UNCONSTITUTIONAL IMPAIRMENT OF THE
OBLIGATION OF THE CONTRACT CAN NOT BE DETERMINED, AND THE APPEAL IS
DISMISSED.  P. 134. 

HUGHES V. WENDEL, COUNTY TREASURER, ET AL. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

PER CURIAM. 

APPELLANT IS THE OWNER OF A 99-YEAR PERPETUALLY RENEWABLE LEASE OF
WHICH THE UNIVERSITY OF MIAMI, IN OHIO, IS LESSOR, AND WHICH HAS BEEN
SUBJECTED TO ASSESSMENT OF COUNTY TAXES PURSUANT TO SEC. 5330 OF THE
OHIO GENERAL CODE.  APPELLANT CONTENDS THAT THIS STATUTE AS APPLIED
VIOLATES AN EXEMPTION FROM TAXATION GRANTED BY SEC. 13 OF AN OHIO
STATUTE OF FEBRUARY 17, 1809(7 OHIO LAWS, P. 188), WHICH ALLEGEDLY
BECAME A PART OF HER CONTRACT THROUGH EXECUTION OF THE LEASE, AND
IMPAIRS THE OBLIGATION OF HER CONTRACT CONTRARY TO ARTICLE I, SEC. 10
OF THE CONSTITUTION.  THE RECORD, HOWEVER, DOES NOT SET FORTH
APPELLANT'S LEASE, AND THE INCOMPLETE SUMMARY OF IT CONTAINED IN HER
PLEADING IS NOT ADEQUATE TO ENABLE US TO DETERMINE WHAT HER RIGHTS MAY
BE.  ACCORDINGLY, WE MUST DISMISS THE APPEAL.  DISMISSED. 
..END :























STATE BANK V. BROWN, 317 U.S. 135 


NO. 23.  ARGUED OCTOBER 16, 1942.  - DECIDED NOVEMBER 16, 1942.  - 124
F.2D 701, REVERSED. 


1.  UNDER SEC. 75(N) OF THE BANKRUPTCY ACT, THE FILING OF A FARMER
DEBTOR'S PETITION CAN NOT BRING INTO THE JURISDICTION OF THE BANKRUPTCY
COURT PROPERTY WHICH HAS BEEN SOLD IN MORTGAGE FORECLOSURE PROCEEDINGS,
AND AS TO WHICH, UNDER THE STATE LAW, EVERY EQUITY OR RIGHT OF THE
DEBTOR HAS BEEN EXTINGUISHED.  P. 138. 

2.  THE LAW OF INDIANA GIVES THE DEBTOR A YEAR FROM THE INSTITUTION
OF FORECLOSURE SUIT WITHIN WHICH TO REDEEM AND TERMINATES HIS RIGHT AND
INTEREST IN THE PROPERTY AT THE SALE.  THE DELIVERY OF A DEED BY THE
SHERIFF BECOMES A MINISTERIAL ACT CONSTITUTING MERELY A RECORD EVIDENCE
OF THE PURCHASER'S TITLE WHICH IS PERFECT FROM THE DATE OF SALE.  P.
141. 

STATE BANK OF HARDINSBURG V. BROWN ET UX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 315 U.S. 794, TO REVIEW A JUDGMENT WHICH REVERSED AN
ORDER OF THE BANKRUPTCY COURT, STRIKING A FARM FROM THE BANKRUPT'S
SCHEDULES. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE COURT BELOW HAS CONSTRUED SEC. 75(N) OF THE BANKRUPTCY ACT  FN1
AS BRINGING WITHIN THE COURT'S JURISDICTION PROPERTY MORTGAGED BY THE
DEBTOR AS TO WHICH, AFTER FORECLOSURE, THE DEBTOR'S EQUITY OF
REDEMPTION HAD EXPIRED.  FN2  BECAUSE OF CONFLICT OF DECISION  FN3  WE
GRANTED CERTIORARI. 

SUBSEQUENT TO THE ADOPTION OF SEC. 75 THE RESPONDENTS BORROWED $2,500
FROM THE PETITIONER AND GAVE A PROMISSORY NOTE SECURED BY MORTGAGE ON
THEIR FARM IN INDIANA.  IN A FORECLOSURE PROCEEDING IN AN INDIANA STATE
COURT PETITIONER OBTAINED JUDGMENT NOVEMBER 20, 1939, ORDERING THAT THE
PROPERTY BE SOLD TO SATISFY THE DEBT.  MAY 25, 1940, THE SHERIFF SOLD
THE FARM TO THE PETITIONER.  THE RESPONDENTS, WHO HAD NOT REDEEMED,
FILED THEIR PETITION UNDER SEC. 75 ON MAY 28, 1940, LISTING THE FARM IN
THEIR SCHEDULES. 

JUNE 1, 1940, THE SHERIFF EXECUTED AND DELIVERED HIS DEED TO THE
PETITIONER; AND, JUNE 30, 1940, PETITIONER FILED, IN THE DISTRICT
COURT, A MOTION TO STRIKE THE FARM FROM THE SCHEDULES ON THE GROUND
THAT, AT THE DATE OF THE PETITION, THE RESPONDENTS HAD NO RIGHT OR
EQUITY IN THE PROPERTY AS THE PERIOD OF REDEMPTION PROVIDED BY STATE
LAW EXPIRED AT THE TIME OF THE SHERIFF'S SALE.  THE COURT GRANTED THE
MOTION AND STRUCK THE PROPERTY FROM THE SCHEDULES.  THE CIRCUIT COURT
OF APPEALS, BY A DIVIDED COURT, REVERSED THE JUDGMENT. 


"THE FILING OF A PETITION  ...  PRAYING FOR RELIEF UNDER  ...  (THIS
WHEREVER LOCATED, FOR ALL THE PURPOSES OF THIS SECTION, TO THE
EXCLUSIVE JURISDICTION OF THE COURT, INCLUDING ALL REAL OR PERSONAL
PROPERTY, OR ANY EQUITY OR RIGHT IN ANY SUCH PROPERTY, INCLUDING, AMONG
OTHERS  ...  THE RIGHT OR THE EQUITY OF REDEMPTION WHERE THE PERIOD OF
REDEMPTION HAS NOT OR HAD NOT EXPIRED, OR WHERE A DEED OF TRUST HAS
BEEN GIVEN AS SECURITY, OR WHERE THE SALE HAS NOT OR HAD NOT BEEN
CONFIRMED, OR WHERE DEED HAD NOT BEEN DELIVERED, AT THE TIME OF FILING
THE PETITION. 

"IN ALL CASES WHERE, AT THE TIME OF FILING THE PETITION, THE PERIOD
OF REDEMPTION HAS NOT OR HAD NOT EXPIRED, OR WHERE THE RIGHT UNDER A
DEED OF TRUST HAS NOT OR HAD NOT BECOME ABSOLUTE, OR WHERE THE SALE HAS
NOT OR HAD NOT BEEN CONFIRMED, OR WHERE DEED HAD NOT BEEN DELIVERED,
THE PERIOD OF REDEMPTION SHALL BE EXTENDED OR THE CONFIRMATION OF SALE
WITHHELD FOR THE PERIOD NECESSARY FOR THE PURPOSE OF CARRYING OUT THE
PROVISIONS OF THIS SECTION." 

THE APPLICABLE STATUTE OF INDIANA IS CHAPTER 90 OF THE ACTS OF 1931. 
FN4  ALTHOUGH THIS STATUTE APPEARS NOT TO HAVE BEEN CONSTRUED BY THE
STATE COURTS, IT SEEMS PLAIN THAT UNDER ITS PROVISIONS A SALE IN
FORECLOSURE CAN NOT BE HAD UNTIL ONE YEAR AFTER THE INSTITUTION OF THE
PROCEEDINGS AND THAT A SALE, THEN MADE, CUTS OFF ALL EQUITY OF
REDEMPTION.  THE COURT BELOW SO CONCEDED. 

THE QUESTION THEN IS, SHOULD SEC. 75(N) BE SO READ THAT, ALTHOUGH THE
DEBTOR HAS NO INTEREST OR EQUITY IN THE LAND WHICH HAS BEEN SOLD, AND
IS AT MOST A TRUSTEE OF THE BARE LEGAL TITLE, THE LAND IS TO BE DRAWN
INTO THE BANKRUPTCY IF THE SHERIFF HAS NOT DELIVERED HIS DEED AT THE
DATE OF THE INITIATION OF THE PROCEEDINGS.  THE RESPONDENTS INSIST THAT
THE SECTION LITERALLY SO PROVIDES AND SHOULD BE GIVEN EFFECT
ACCORDINGLY.  THE PETITIONER REPLIES THAT THE FAIR MEANING OF THE
OF REDEMPTION DOES THE LAND COME UNDER THE BANKRUPTCY JURISDICTION.  IT
ADDS THAT IF THE LANGUAGE BE OF DOUBTFUL IMPORT THE LEGISLATIVE HISTORY
FULLY SUPPORTS THE CONSTRUCTION FOR WHICH IT CONTENDS.  WE HOLD WITH
THE PETITIONER. 

COME UNDER THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT, ADDS
THAT ANY EQUITY OR RIGHT IN SUCH PROPERTY SHALL BE WITHIN THE COURT'S
JURISDICTION.  IT THEN ATTEMPTS TO DETAIL SUCH RIGHTS, BY A CLAUSE
OPENING WITH THE PHRASE "INCLUDING, AMONG OTHERS,  ...  THE RIGHT OR
THE EQUITY OF REDEMPTION WHERE THE PERIOD OF REDEMPTION HAS NOT OR HAD
NOT EXPIRED,  ...  "  THIS LANGUAGE WOULD SEEM ADEQUATE TO VEST IN THE
TRUSTEE ANY UNEXPIRED EQUITY OF REDEMPTION AND FURNISH THE BASIS FOR
DEALING WITH THE PROPERTY SUBJECT TO SUCH EQUITY OF REDEMPTION. 
APPARENTLY OUT OF AN EXCESS OF CAUTION THE SENTENCE THEN PROCEEDS TO
CATALOG CERTAIN INSTANCES WHERE, UNDER STATE LAW, SOME ACT OR THING HAS
NOT OCCURRED WHOSE OCCURRENCE IS ESSENTIAL TO THE TERMINATION OF THE
EQUITY OF REDEMPTION.  THUS THE SECTION PROCEEDS "OR WHERE A DEED OF
TRUST HAS BEEN GIVEN AS SECURITY, OR WHERE THE SALE HAS NOT OR HAD NOT
BEEN CONFIRMED, OR WHERE DEED HAD NOT BEEN DELIVERED, AT THE TIME OF
FILING THE PETITION."  IT IS, OF COURSE, COMMON KNOWLEDGE THAT, IN
VARIOUS STATES, ONE OR OTHER OF THE EVENTS MENTIONED IS NECESSARY
FINALLY TO CUT OFF THE EQUITY OF REDEMPTION. 

THE SECOND PARAGRAPH OF THE SECTION MERELY EXTENDS THE PERIOD OF
REDEMPTION IN CASES WHERE, AT THE TIME OF FILING THE PETITION, THE
PERIOD OF REDEMPTION HAS NOT OR HAD NOT EXPIRED.  HERE AGAIN, HOWEVER,
IN AN EXCESS OF CAUTION, THE STATUTE PROVIDES, AFTER MENTIONING THE
EXPIRATION OF THE PERIOD OF REDEMPTION, "OR WHERE THE RIGHT UNDER A
DEED OF TRUST HAS NOT OR HAD NOT BECOME ABSOLUTE, OR WHERE THE SALE HAS
NOT OR HAD NOT BEEN CONFIRMED, OR WHERE DEED HAD NOT BEEN DELIVERED,
THE PERIOD OF REDEMPTION SHALL BE EXTENDED  ...  "  IT SEEMS CLEAR THAT
IF NO RIGHT OF REDEMPTION EXISTS THERE CAN BE NO PERIOD OF REDEMPTION
TO EXTEND. 

A FAIR READING OF THE ENTIRE SECTION INDICATES A CLEAR INTENT TO
EXTEND THE BANKRUPTCY JURISDICTION OVER ALL PROPERTY WHICH STILL
REMAINS SUBJECT TO REDEMPTION UNDER STATE LAW AT THE TIME OF FILING THE
PETITION.  THE SECTION DOES NOT EVIDENCE ANY INTENT ON THE PART OF
CONGRESS TO BRING BACK INTO THE BANKRUPTCY PROCEEDING PROPERTY WHICH
WAS ONCE OWNED BY THE BANKRUPT AND AS TO WHICH HIS OWNERSHIP AND
INTEREST HAS BEEN EXTINGUISHED, UNLESS SUCH INTENT CAN BE DRAWN FROM
THE PROVISIONS QUALIFYING THE GENERAL WORDS OF THE SECTION.  WE THINK
THAT IF CONGRESS INTENDED THAT A BANKRUPTCY MIGHT REACH BACK INTO THE
PAST AND BRING UNDER THE COURT'S JURISDICTION A FORMER INTEREST IN
PROPERTY, WHICH, UNDER STATE LAW, HAD IRREVOCABLY PASSED TO A THIRD
PERSON, IT WOULD HAVE SO STATED IN TERMS TOO CLEAR TO LEAVE ANY DOUBT. 

IF IT BE CONCEDED THAT THE CONSTRUCTION OF THE SECTION IS DOUBTFUL,
THE LEGISLATIVE HISTORY IS OVERWHELMINGLY IN SUPPORT OF THE VIEW WE
HAVE STATED. 

SUBSECTION (N) AS ORIGINALLY ENACTED  FN5  PROVIDED THAT THE FILING OF
A PETITION UNDER SEC. 75 "SHALL SUBJECT THE FARMER AND HIS PROPERTY,
WHEREVER LOCATED, TO THE EXCLUSIVE JURISDICTION OF THE COURT."  IN
ADMINISTERING THIS SECTION THE FEDERAL COURTS HELD DIVERSE VIEWS AS TO
THEIR POWER TO DEAL WITH THE EQUITY OF REDEMPTION OF A MORTGAGOR AFTER
FORECLOSURE.  FN6  WHEN CONGRESS CAME TO AMEND THE ACT TO MEET THE
DECISION OF THIS COURT IN LOUISVILLE JOINT STOCK LAND BANK V. RADFORD,
295 U.S. 555, IT HAD IN MIND THE FACT THAT IN MANY STATES A DEED OF
TRUST IS USED AS A METHOD OF GIVING REAL ESTATE SECURITY FOR LOANS
WHEREUNDER THE TRUSTEE MAY MAKE A SALE; THAT IN SOME STATES THE EQUITY
OF REDEMPTION EXISTS UNTIL A DEED HAS BEEN DELIVERED; THAT IN OTHERS IT
EXPIRES WITH THE ACTUAL SALE UNDER FORECLOSURE; THAT IN OTHERS IT
EXPIRES WHEN THE SALE HAS BEEN CONFIRMED BY THE COURT AND THAT IN SOME,
ALTHOUGH ALL OF THESE ACTS HAVE BEEN PERFORMED, THE DEBTOR HAS A RIGHT
TO RELIEF DURING A SPECIFIED PERIOD AFTER CONFIRMATION OF SALE,
DELIVERY OF DEED AND ENTRY INTO POSSESSION BY THE PURCHASER.  FN7  THE
COMMITTEE REPORTS IN THE HOUSE AND SENATE  FN8  WITH RESPECT TO THE
PROPOSED AMENDMENT EVINCE A PURPOSE TO AMEND THE EXISTING LAW SO AS TO
RENDER IT CLEAR THAT, WHATEVER THE RIGHT OF REDEMPTION UNDER STATE LAW,
THE BANKRUPT AND HIS ESTATE WERE TO HAVE THE BENEFIT OF THAT RIGHT. 
REFERRING, INTER ALIA, TO THE AMENDMENTS TO SUBSECTION (N), THE HOUSE
REPORT STATES: 

"THESE OTHER AMENDMENTS ARE LARGELY CLARIFICATION, AND HAVE BECOME
NECESSARY BECAUSE OF THE DIVERSE RULINGS AND HOLDINGS OF THE VARIOUS
UNITED STATES DISTRICT COURTS IN THE CONSTRUCTION OF SECTION 75.  SOME
OF THESE COURTS HAVE HELD THAT THE FARMER-DEBTOR COULD NOT TAKE
ADVANTAGE OF THE ACT AFTER FORECLOSURE SALE, AND DURING THE PERIOD OF
REDEMPTION.  SOME OF THESE COURTS HAVE REFUSED TO PERMIT THE FARMER IN
THAT POSITION TO FILE HIS PETITION, ALTHOUGH UNDER THE LAW OF HIS STATE
HE WAS IN POSSESSION, ENTITLED TO RENTS AND PROFITS, AND IN FULL
CONTROL OF THE PROPERTY, AND COULD REDEEM IT WITHIN THE PERIOD
ALLOWED. 

"AGAIN, OTHER COURTS HAVE HELD THAT THE FARMER COULD NOT TAKE
ADVANTAGE OF THE ACT DURING THE PERIOD OF MORATORIUM ESTABLISHED BY A
STATE, WHILE OTHERS HAVE HELD THAT THE DEBTOR COULD NOT TAKE ADVANTAGE
OF THE ACT AFTER SALE, BUT PRIOR TO CONFIRMATION, ALTHOUGH IN ALL OF
THESE CASES IF THE DEBTOR HAD THE MONEY, AND WERE IN A POSITION TO PAY,
HE COULD REDEEM, AND SAVE THE PROPERTY. 

"IT IS CLEAR THAT THESE COURTS ARE REASONING TOO TECHNICALLY, AND
HAVE FAILED TO CARRY OUT THE INTENTION OF CONGRESS, WHICH WAS TO
PROTECT THE FARMER'S HOME AND PROPERTY, AND AT THE SAME TIME TO PROTECT
THE CREDITOR.  ON THE OTHER HAND, OTHER COURTS HAVE HELD JUST THE
OPPOSITE, AND HAVE GIVEN FULL PROTECTION, AND CARRIED OUT THE INTENT OF
CONGRESS.  UNDER THIS CONDITION, WE THINK IT IS ADMITTED BY ALL THAT
THERE SHOULD BE UNIFORMITY." 

THE LANGUAGE OF THE SENATE REPORT GOES INTO SOMEWHAT MORE DETAIL BUT
IS OF THE SAME PURPORT.  WHEN THE AMENDMENTS WERE BEFORE THE SENATE,
SENATOR BORAH, A MEMBER OF THE COMMITTEE, EXPLAINED THEM TO THE SENATE
IN THE FOLLOWING LANGUAGE:  FN9 

"IN THE FIRST PLACE, HOWEVER, IT OUGHT TO BE SAID THAT WE UNDERTOOK
TO MAKE SOME AMENDMENTS IN SECTION 75 BEFORE WE GOT TO SUBSECTION (S). 
THESE AMENDMENTS ARE FOR THE PURPOSE OF CLARIFYING SECTION 75.  SOME OF
THE COURTS HAVE HELD THAT THE FARMER DEBTOR COULD NOT TAKE ADVANTAGE OF
THE ACT AFTER FORECLOSURE SALE AND DURING THE PERIOD OF REDEMPTION. 
THE BILL UNDERTAKES TO CLARIFY IT SO AS TO PERMIT THE FARMER TO TAKE
ADVANTAGE OF SECTION 75 AFTER FORECLOSURE AND DURING THE PERIOD OF
REDEMPTION. 

"SOME OF THE COURTS ALSO REFUSED TO PERMIT THE FARMER WHO WAS IN THAT
POSITION TO FILE HIS PETITION, ALTHOUGH UNDER THE LAW OF THE STATE HE
WAS IN POSSESSION AND FULL CONTROL OF THE PROPERTY AND COULD REDEEM IT
DURING THE PERIOD OF MORATORIUM ESTABLISHED BY THE STATES.  ONE OF THE
AMENDMENTS TO SECTION 75 TAKES CARE OF THAT OBJECTION WHICH WAS RAISED
BY THE COURT. 

"AMENDED SUBSECTION (S) CONSTRUES, INTERPRETS, AND CLARIFIES BOTH
SUBSECTIONS (N) AND (O) OF SECTION 75.  BY READING SUBSECTIONS (N) AND
(O) AS NOW ENACTED, IT BECOMES CLEAR THAT IT WAS THE INTENTION OF
CONGRESS, WHEN IT PASSED SECTION 75, THAT THE DEBTOR AND ALL OF HIS
PROPERTY SHOULD COME UNDER THE JURISDICTION OF THE COURT OF BANKRUPTCY,
AND THAT THE BENEFITS OF THE ACT SHOULD EXTEND TO THE FARMER PRIOR TO
CONFIRMATION OF SALE AND DURING THE PERIOD OF REDEMPTION.  IN OTHER
WORDS, THE AMENDMENTS PROVIDE THAT THE FARMER MAY AVAIL HIMSELF OF THE
ACT AFTER FORECLOSURE AND DURING THE PERIOD OF REDEMPTION, AND MAY ALSO
AVAIL HIMSELF OF THE ACT DURING THE PERIOD OF THE MORATORIUM PROVIDED
FOR HIM WITHIN THE STATE." 

THE LAW OF INDIANA GIVES THE DEBTOR A YEAR FROM THE INSTITUTION OF
FORECLOSURE SUIT WITHIN WHICH TO REDEEM AND TERMINATES HIS RIGHT AND
INTEREST IN THE PROPERTY AT THE SALE.  THE DELIVERY OF A DEED BY THE
SHERIFF, THEREFORE, BECOMES A MINISTERIAL ACT WHICH HE CAN BE COMPELLED
TO PERFORM.  FN10  SUCH DELIVERY CONSTITUTES MERE RECORD EVIDENCE OF
THE PURCHASER'S TITLE WHICH IS PERFECT FROM THE DATE OF SALE.  AS THE
SALE CUT OFF ALL RIGHTS OF THE DEBTOR, SEC. 75(N) DOES NOT BRING THE
PROPERTY WITHIN THE JURISDICTION OF THE BANKRUPTCY COURT. 

THE PETITIONER URGES THAT THE CONSTRUCTION GIVEN THE SECTION BY THE
COURT BELOW WOULD RENDER IT UNCONSTITUTIONAL.  THE VIEW WE TAKE OF THE
MEANING OF THE STATUTE MAKES IT UNNECESSARY TO CONSIDER THIS
CONTENTION. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  11 U.S.C. SEC. 203. 

FN2  124 F.2D 701. 

FN3  GLENN V. HOLLUMS, 80 F.2D 555; SHREINER V. FARMERS TRUST CO., 91
F.2D 606.  COMPARE IN RE RANDALL, 20 F.SUPP.  470; BUTTARS V. UTAH
MORTGAGE LOAN CORP., 116 F.2D 622. 

FN4  BURNS INDIANA STATUTES 1933, SECS. 3-1801 TO 3-1809, INCLUSIVE. 

FN5  47 STAT. 1473. 

FN6  SEE 99 A.L.R. 1390-1393. 

FN7  SEE JONES, MORTGAGES (8TH ED.)  SECS.  1695-1746; WILTSIE,
MORTGAGE FORECLOSURE (5TH ED.)  SEC. 1199. 

FN8  H.R. REPORT NO. 1808, 74TH CONG., 1ST SESS.; S.R. 985, 74TH
CONG., 1ST SESS. 

FN9  CONG. REC. VOL. 79, PT. 13, P. 13632.    FN10  JESSUP V. CAREY,
61 IND. 584, 592; HUBBLE V. BERRY, 180 IND. 513, 519, 103 N.E. 328;
STATE EX REL. MILLER V. BENDER, 102 IND. APP. 185, 1 N.E.2D 662. 

MR. JUSTICE MURPHY, DISSENTING: 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND I CANNOT AGREE WITH THE
OPINION OF THE COURT.  SECTION 75(N) SUBJECTS TO THE EXCLUSIVE
JURISDICTION OF THE BANKRUPTCY COURT ALL PROPERTY IN WHICH THE
PETITIONING FARMER-DEBTOR HAS ANY EQUITY OR RIGHT, "INCLUDING, AMONG
OTHERS  ...  THE RIGHT OR THE EQUITY OF REDEMPTION WHERE THE PERIOD OF
REDEMPTION HAS NOT OR HAD NOT EXPIRED,  ...  OR WHERE DEED HAD NOT BEEN
DELIVERED, AT THE TIME OF FILING THE PETITION."  CONCEDING THAT
RESPONDENTS' EQUITY OF REDEMPTION WAS CUT OFF UNDER INDIANA LAW PRIOR
TO THE FILING OF THEIR PETITION, THE DEED HAD NOT BEEN DELIVERED AT THE
TIME OF FILING.  RESPONDENTS THUS COME WITHIN THE EXACT TERMS OF SEC.
75(N), AND THE PROPERTY SHOULD NOT HAVE BEEN STRUCK FROM THEIR
SCHEDULES. 

WE HAVE SAID THAT DOUBTS IN SEC. 75 ARE TO BE SETTLED IN THE DEBTOR'S
FAVOR, AND THAT IT "MUST BE LIBERALLY CONSTRUED TO GIVE THE DEBTOR THE
FULL MEASURE OF THE RELIEF AFFORDED BY CONGRESS, LEST ITS BENEFITS BE
FRITTERED AWAY BY NARROW FORMALISTIC INTERPRETATIONS WHICH DISREGARD
THE SPIRIT AND THE LETTER OF THE ACT."  WRIGHT V. UNION CENTRAL INS.
CO., 311 U.S. 273, 279.  BUT WE ARE NOW TOLD THAT THE SPIRIT AND THE
LETTER OF SEC. 75(N), ESPECIALLY THE PHRASE "OR WHERE DEED HAD NOT BEEN
DELIVERED," MAY BE DISREGARDED UPON A "FAIR READING OF THE ENTIRE
IT IS CLAIMED, DISCLOSE THAT CONGRESS DID NOT INTEND THE BENEFITS OF
SEC. 75 TO EXTEND BEYOND THE EXPIRATION OF THE EQUITY OF REDEMPTION BY
FORCE OF STATE LAW, THE ABOVE-QUOTED PHRASE BEING ADDED, "APPARENTLY
OUT OF AN EXCESS OF CAUTION," TO PROVIDE FOR THOSE STATES IN WHICH THE
EQUITY OF REDEMPTION SURVIVES UNTIL THE DELIVERY OF A DEED.  IF
CONGRESS SO INTENDED, ITS WORDS WERE POORLY CHOSEN.  CONGRESS COULD
EASILY HAVE DECLARED THAT BANKRUPTCY JURISDICTION DOES NOT SURVIVE THE
EXTINGUISHMENT OF THE EQUITY OF REDEMPTION UNDER STATE LAW, WHETHER
THAT EXTINGUISHMENT IS ACCOMPLISHED BY SALE, CONFIRMATION, OR THE
DELIVERY OF A DEED.  INSTEAD CONGRESS USED THE DISJUNCTIVE "OR".  THAT
CONGRESS DID NOT SO INTEND IS CLEAR FROM THE LEGISLATIVE HISTORY OF THE
ACT.  THE TRUE CONGRESSIONAL PURPOSE WAS "TO PROTECT THE FARMER'S HOME
AND PROPERTY, AND AT THE SAME TIME TO PROTECT THE CREDITOR."  FN1  THIS
PURPOSE IS BEST ACHIEVED BY GIVING EFFECT TO THE PRECISE WORDS OF SEC.
75(N).  THE FARMER IS GIVEN A CHANCE TO REHABILITATE HIMSELF SO LONG AS
HE HAS ANY VESTIGE OF A RIGHT IN THE PROPERTY, CALL IT "BARE LEGAL
TITLE" OR WHAT YOU WILL.  THE CREDITOR IS PROTECTED BECAUSE THE VALUE
OF THE PROPERTY REMAINS, UNDER ADEQUATE SAFEGUARDS PROVIDED BY THE ACT,
AS SECURITY FOR THE DEBT.  "THERE IS NO CONSTITUTIONAL CLAIM OF THE
CREDITOR TO MORE THAN THAT."  WRIGHT V. UNION CENTRAL INS. CO., 311
U.S. 273, 278. 

FN1  H. REP. NO. 1808, 74TH CONG., 1ST SESS., P. 2.  SEE ALSO S. REP.
NO. 985, 74TH CONG., 1ST SESS., P. 2. 
..END :




PFISTER V. FINANCE CORP., 317 U.S. 144 


NOS. 26 AND 27.  ARGUED OCTOBER 19, 1942.  - DECIDED NOVEMBER 16, 1942. 
- 123 F.2D 543, AFFIRMED. 


1.  THE TIME WITHIN WHICH A PETITION MAY BE FILED TO REVIEW AN ORDER
OF A CONCILIATION COMMISSIONER, FIXING RENTAL OR GRANTING STAY OR
DIRECTING SALE, IS GOVERNED BY SEC. 39(C) OF THE BANKRUPTCY ACT AND IS
FIXED AT TEN DAYS AFTER THE ENTRY OF THE ORDER "OR WITHIN SUCH EXTENDED
TIME AS THE COURT MAY FOR CAUSE SHOWN ALLOW."  P. 147. 

2.  THE TEN-DAY PERIOD FOR FILING A PETITION TO REVIEW A
COMMISSIONER'S ORDER UNDER SEC. 39(C) IS NOT EXTENDED BY A PETITION FOR
REHEARING WHICH IS DENIED BY THE COMMISSIONER WITHOUT REEXAMINATION OF
THE BASIS OF THE ORIGINAL ORDER.  P. 150. 

3.  THE TEN-DAY PERIOD PRESCRIBED BY SEC. 39(C) IS A LIMITATION ON
THE RIGHT OF THE AGGRIEVED PARTY TO APPEAL, BUT NOT A LIMITATION ON THE
JURISDICTION OF THE REVIEWING COURT TO ACT.  THE DISTRICT COURT IN THE
EXERCISE OF SOUND DISCRETION CAN REVIEW ORDERS ON PETITIONS TO REVIEW
FILED AFTER THE TEN-DAY PERIOD HAS RUN.  P. 152. 

4.  IN THIS CASE, THE COMMISSIONER ENTERTAINED OUT-OF-TIME PETITIONS
TO REHEAR ORDERS FIXING RENTAL, GRANTING STAY AND DIRECTING SALE AND
DENIED THE PETITIONS UPON THE GROUND THAT THEY WERE INADEQUATE TO
INDUCE A REEXAMINATION OF THE MERITS OF THE ORDERS THEY SOUGHT TO RE
OPEN.  HELD, ON THE FACTS OF THIS CASE, THAT THE DISTRICT COURT DID NOT
ERR IN REFUSING AN OUT-OF-TIME REVIEW OF THE MERITS OF THE ORIGINAL
ORDERS.  P. 153. 

PFISTER V. NORTHERN ILLINOIS FINANCE CORP. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 315 U.S. 795, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS WHICH AFFIRMED ORDERS OF THE DISTRICT COURT EN BANC
DISMISSING, FOR WANT OF JURISDICTION, PETITIONS TO REVIEW ORDERS OF A
CONCILIATION COMMISSIONER. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI, 315 U.S. 795, BRINGS HERE CERTAIN RULINGS ON THE
RIGHT OF PETITIONER, A FARMER-DEBTOR, TO HAVE REVIEWED THE ORDERS OF A
CONCILIATION COMMISSIONER  FN1  UNDER SEC. 75 OF THE BANKRUPTCY ACT. 
THIS SECTION DEALS WITH AGRICULTURAL COMPOSITIONS AND EXTENSIONS.  A
CONFLICT OF CIRCUITS AS TO WHETHER THE TEN-DAY PERIOD FOR FILING A
PETITION FOR REVIEW OF A COMMISSIONER'S ORDER WAS A LIMITATION ON THE
POWER OF THE REVIEWING COURT TO ACT OR ON THE RIGHT OF AN AGGRIEVED
PARTY TO APPEAL,  FN2  IMPELLED US TO GRANT OUR WRIT.  IN RE PFISTER,
123 F.2D 543, 548; THUMMESS V. VON HOFFMAN, 109 F.2D 291, AND IN RE
ALBERT, 122 F.2D 393. 

IN ADDITION TO THIS POINT, NUMEROUS OTHER QUESTIONS AS TO THE RIGHT
TO REVIEW ARE PRESENTED WHICH MAY BE FAIRLY SUBSUMED UNDER PETITIONER'S
ALLEGATIONS OF ERROR BELOW:  (1) BECAUSE THE COURTS DID NOT APPLY THE
LIMITATION IN THE PROVISO OF 75(S)  FN3  INSTEAD OF THAT IN 39(C); (2)
BECAUSE PETITIONS FOR REHEARING OF A CONCILIATION COMMISSIONER'S
ORDERS, WHICH PETITIONS WERE ENTERTAINED AND DENIED, WERE NOT HELD TO
EXTEND THE PERIOD FOR REVIEW; AND (3) BECAUSE THE ORDER OF STAY
APPROVED BY THE COMMISSIONER UNDER 75(S)(2) WAS FOR LESS THAN THE
STATUTORY PERIOD OF THREE YEARS FROM THE ENTRY OF THE STAY ORDER. 

AFTER FAILING TO OBTAIN A COMPOSITION OR EXTENSION UNDER SEC. 75(A)
TO (R) OF THE BANKRUPTCY ACT, THE PETITIONER, A FARMER, SOUGHT RELIEF
UNDER SEC. 75(S).  IN DUE COURSE ON AUGUST 10, 1940, HE PETITIONED THE
COMMISSIONER TO FIX HIS RENT, PERMIT HIM TO RETAIN HIS PROPERTY AND
ESTABLISH A STAY OR MORATORIUM.  IN THE PETITION HE STATED THAT HIS
MORATORIUM BEGAN TO RUN ON APRIL 26, 1940.  ON AUGUST 13, 1940, THE
COMMISSIONER, AFTER HEARING EVIDENCE UPON ITS AMOUNT, ORDERED THAT THE
RENTAL BE FIXED AT A SUM NAMED, AND DIRECTED A STAY FROM APRIL 26,
1940, AS THE PETITIONER SUGGESTED.  AN APPRAISAL WAS APPROVED BY A
SEPARATE ORDER ON THE SAME DAY, AUGUST 13.  ON SEPTEMBER 7, 1940,
ORDERS WERE ENTERED FOR THE SALE OF CERTAIN PROPERTY, CHIEFLY
LIVESTOCK, STIPULATED BY THE DEBTOR TO BE PERISHABLE UNDER SEC.
75(S)(2).  AFTER THE TEN DAYS FIXED FOR REVIEW UNDER 39(C), PETITIONS
FOR REHEARING ON THE ORDERS FIXING RENTAL, GRANTING STAY AND DIRECTING
SALE WERE FILED WITH THE COMMISSIONER.  THE BASIS OF THESE PETITIONS
AND THE REASONS FOR THEIR DENIAL BY THE COMMISSIONER ARE DETAILED IN
DIVISION II OF THIS OPINION. 

PETITIONS FOR REVIEW WERE FILED WHICH WERE TIMELY IF PETITIONER WAS
RIGHT IN HIS CONTENTION THAT THE COMMISSIONER'S ACTION ON THE PETITIONS
FOR REHEARING EXTENDED THE TIME FOR APPEAL FOR TEN DAYS FROM THE ENTRY
OF THE COMMISSIONER'S ORDER DENYING REHEARING.  THE TWO NUMBERS, 26 AND
27, OF OUR DOCKET, REFER TO THESE TWO PETITIONS FOR REVIEW CONSOLIDATED
FOR HEARING.  THE DISTRICT COURT DENIED EACH OF THE PETITIONS FOR
REVIEW ON THE GROUND THAT THERE WAS NO JURISDICTION IN IT TO REVIEW,
SINCE THE PETITIONS FOR REVIEW WERE FILED AFTER THE TEN DAYS PROVIDED
BY 39(C) AND THE RULES OF THE DISTRICT COURT, AND SINCE THE DENIAL OF
THE PETITIONS FOR REHEARING DID NOT EXTEND THE TIME.  THE COURT OF
APPEALS AFFIRMED THE JUDGMENT ON THE GROUNDS THAT 39(C) GOVERNED, THAT
THE TIME FOR REVIEW WAS NOT EXTENDED BY THE PETITIONS FOR REHEARING,
THAT THERE WAS NO BASIS FOR REVERSING THE COMMISSIONER'S ACTION ON THE
PETITIONS FOR REVIEW, AND THAT THE "PETITIONS FOR REVIEW WERE NOT FILED
IN TIME."  WE DISAGREE WITH THE COURT OF APPEALS UPON THE LAST GROUND
ON THE ASSUMPTION THAT THE LANGUAGE MEANT THAT THE DISTRICT COURT WAS
WITHOUT "POWER" TO REVIEW THE ORDERS.  WE AGREE WITH THE COURT OF
APPEALS UPON THE FIRST THREE GROUNDS AND THEREFORE AFFIRM THE
JUDGMENT. 

I. THE PROVISO OF SUBSECTION 75(S), NOTE 3 SUPRA, IS, WE THINK,
LIMITED IN ITS EFFECT TO STEPS BEFORE COMMISSIONERS AUTHORIZED BY THE
PROVISIONS OF SEC. 75(S) WHICH PRECEDE THE PROVISO.  CONGRESS EVIDENTLY
INTENDED TO ALLOW ADEQUATE TIME FOR REFLECTION AND PREPARATION BEFORE
APPEAL BY PARTIES AGGRIEVED BY THE BASIC AND DIFFICULT FINDING OF
VALUE.  THE PROVISIONS OF SEC. 75(S) FOLLOWING THE PROVISO AUTHORIZE
ORDERS SETTING ASIDE EXEMPTIONS, LEAVING THE APPRAISED PROPERTY IN THE
HANDS OF THE DEBTOR AND FIXING RENTALS THEREFOR, STAYING JUDICIAL
PROCEEDINGS, SELLING PERISHABLE PROPERTY, DIRECTING REAPPRAISALS AND
FINAL SALE OF THE ESTATE.  IT IS OBVIOUS THAT THIS PROVISO, COUCHED IN
TERMS OF APPEAL, COULD NOT HAVE BEEN INTENDED TO CONTROL THE REVIEW OF
THE MANIFOLD ACTIVITIES OF A COMMISSIONER ENGAGED IN HANDLING AN ESTATE
THROUGH THREE OR MORE YEARS OF BANKRUPTCY.  TO HOLD THE PROVISO
GENERALLY APPLICABLE WOULD LEAVE UNREGULATED REVIEWS OF ORDERS ENTERED
MORE THAN FOUR MONTHS AFTER THE COMMISSIONER APPROVES THE APPRAISAL. 
THE SECTION APPLICABLE TO THESE REVIEWS IS SEC. 39(C).  FN4 

II.  THE PETITIONS FOR REVIEW OF THE COMMISSIONER'S ORDERS OF AUGUST
13, 1940, AND SEPTEMBER 7, 1940, WHICH WERE FILED NOVEMBER 28, 1940,
AND OCTOBER 9, 1940, NO EXTENSION HAVING BEEN GRANTED, WERE OUT OF TIME
UNDER SEC. 39(C)  FN5  UNLESS, IN ACCORDANCE WITH THE PETITIONER'S
CONTENTIONS, THE TIME FOR REVIEW WAS TO RUN FROM THE ENTRY OF THE
ORDERS OF THE COMMISSIONER DENYING THE PETITIONS FOR REHEARING OF THE
ORDER OF AUGUST 13, WHICH PETITION WAS FILED SEPTEMBER 16, 1940, AND OF
THE ORDERS OF SEPTEMBER 7, WHICH PETITION WAS FILED SEPTEMBER 20,
1940.  THESE ORDERS OF THE COMMISSIONER DENYING THE PETITIONS FOR
REHEARING WERE ENTERED NOVEMBER 28, 1940, AND SEPTEMBER 30, 1940. 

WHERE A PETITION FOR REHEARING OF A REFEREE'S ORDER IS PERMITTED TO
BE FILED, AFTER THE EXPIRATION OF THE TIME FOR A PETITION FOR REVIEW,
AND DURING THE PENDENCY OF THE BANKRUPTCY PROCEEDINGS, AS HERE, THEY
MAY BE ACTED ON,  FN6  THAT IS, THEY MAY BE GRANTED "BEFORE RIGHTS HAVE
VESTED ON THE FAITH OF THE ACTION," AND THE FOUNDATIONS OF THE ORIGINAL
ORDER MAY BE REEXAMINED.  WAYNE GAS CO. V. OWENS-ILLINOIS CO., 300 U.S.
131, 137.  FN7  WHEN SUCH A PETITION FOR REHEARING IS GRANTED AND THE
ISSUES OF THE ORIGINAL ORDER ARE REEXAMINED AND AN ORDER IS ENTERED,
EITHER DENYING OR ALLOWING A CHANGE IN THE ORIGINAL ORDER, THE TIME FOR
REVIEW UNDER 39(C) BEGINS TO RUN FROM THAT ENTRY.  BOWMAN V. LOPERENA,
311 U.S. 262, 266; WAYNE GAS CO. V. OWENS-ILLINOIS CO., 300 U.S. 131,
137-8.  THE REASON FOR TAKING THE LATER DATE FOR BEGINNING THE RUNNING
OF THE TIME FOR REVIEW IS THAT THE OPENING OF THE EARLIER ORDER BY THE
COURT PUTS THE BASIS OF THAT EARLIER ORDER AGAIN IN ISSUE.  A REFUSAL
TO MODIFY THE ORIGINAL ORDER, HOWEVER, REQUIRES THE APPEAL TO BE FROM
THE ORIGINAL ORDER, EVEN THOUGH THE TIME IS COUNTED FROM THE LATER
ORDER REFUSING TO MODIFY THE ORIGINAL.  AN APPEAL DOES NOT LIE FROM THE
DENIAL OF A PETITION FOR REHEARING.  CONBOY V. FIRST NATIONAL BANK, 203
U.S. 141, 145; BOWMAN V. LOPERENA, 311 U.S. 262, 266; BROCKETT V.
BROCKETT, 2 HOW.  238; ROEMER V. BERNHEIM, 132 U.S. 103; JONES V.
THOMPSON, 128 F.2D 888; MISSOURI V. TODD, 122 F.2D 804. 

ON THE OTHER HAND, WHERE OUT OF TIME PETITIONS FOR REHEARING ARE
FILED AND THE REFEREE OR COURT MERELY CONSIDERS WHETHER THE PETITION
SETS OUT, AND THE FACTS - IF ANY ARE OFFERED - SUPPORT, GROUNDS FOR
OPENING THE ORIGINAL ORDER AND DETERMINES THAT NO GROUNDS FOR A
REEXAMINATION OF THE ORIGINAL ORDER ARE SHOWN, THE HEARING UPON OR
EXAMINATION OF THE GROUNDS FOR ALLOWING A REHEARING DOES NOT ENLARGE
THE TIME FOR REVIEW OF THE ORIGINAL ORDER.  THIS RESULT FOLLOWS FROM
THE WELL-ESTABLISHED RULE THAT WHERE AN UNTIMELY PETITION FOR REHEARING
IS FILED WHICH IS NOT ENTERTAINED OR CONSIDERED ON ITS MERITS THE TIME
TO APPEAL FROM THE ORIGINAL ORDER IS NOT EXTENDED.  FN8 

IF A CONSIDERATION OF THE REASONS FOR ALLOWING A REHEARING OUT OF
TIME WHICH ARE BROUGHT FORWARD BY THE PETITION FOR REHEARING WERE
SUFFICIENT TO RESURRECT THE ORIGINAL ORDER, THE MERE FILING OF AN OUT
OF TIME PETITION WOULD BE ENOUGH.  OF COURSE, THE COURT MUST EXAMINE
THE PETITION TO SEE WHETHER IT SHOULD BE GRANTED.  INDEED THE
EXAMINATION GIVEN A MOTION TO FILE SUCH A PETITION MIGHT JUST AS WELL
BE SAID TO JUSTIFY THE ADVANCEMENT OF THE TIME FOR REVIEW.  IT IS QUITE
TRUE THAT IN A PETITION FOR REVIEW UPON THE GROUND OF ERROR IN LAW IN
THE ORIGINAL ORDER, THE EXAMINATION OF THE GROUNDS OF THE PETITION FOR
REHEARING IS EQUIVALENT TO A REEXAMINATION OF THIS BASIS OF THE
ORIGINAL DECREE.  BUT IN SUCH A CASE THE ORDER ON THE PETITION FOR
REVIEW WOULD CONTROL.  IT WOULD SHOW EITHER A REFUSAL TO ALLOW THE
PETITION FOR REHEARING OR A REFUSAL TO MODIFY THE ORIGINAL ORDER.  CF.
WAYNE GAS CO. V. OWENS-ILLINOIS CO., 300 U.S. 131, 137-38.  WHETHER
TIME FOR APPEAL WOULD BE ENLARGED OR NOT WOULD DEPEND UPON WHAT THE
ORDER SHOWED THE COURT DID. 

IN THE PRESENT CASE IT IS QUITE PLAIN THE DENIAL WAS GROUNDED UPON A
FAILURE OF THE PETITIONS FOR REHEARING TO ESTABLISH ADEQUATE GROUNDS
FOR THE REEXAMINATION OF THE ORIGINAL ORDERS.  THE PETITION FOR
REHEARING OF THE ORDER OF AUGUST 13, RELATING TO RENT, SOUGHT TO
PRODUCE EVIDENCE THAT THE RENTAL FIXED WAS TOO HIGH, RAISED A QUESTION
OF LAW THAT A FULL THREE YEARS STAY WAS NOT ALLOWED AND ALLEGED A LACK
OF REPRESENTATION BY COUNSEL.  A MOTION TO DISMISS THE PETITION FOR
REHEARING AS OUT OF TIME WAS DENIED.  THE COMMISSIONER EXAMINED THE
PETITION FOR REHEARING AND DETERMINED THAT THE DEBTOR HAD HAD FULL
OPPORTUNITY TO PRESENT HIS EVIDENCE AT THE HEARING AND THAT THE STAY
WAS IN ACCORDANCE WITH THE DEBTOR'S MOTION AND THAT COUNSEL FOR THE
DEBTOR APPEARED AT EACH HEARING AND KNEW OF EACH ORDER.  HE THEREFORE
CONCLUDED "THAT THERE IS NO EQUITY OR MERIT IN THE PETITION FOR
REHEARING" AND DENIED THE PETITION.  THE PETITION FOR REHEARING OF THE
ORDERS OF SEPTEMBER 7 WAS SIMILARLY HANDLED.  THEY WERE ORDERS FOR
SALES OF PERISHABLE PROPERTY, SEC. 75(S)(2), STIPULATED TO BE
PERISHABLE BY COUNSEL FOR THE DEBTOR.  REHEARING WAS SOUGHT BECAUSE OF
LACK OF REPRESENTATION BY COUNSEL AND LACK OF NOTICE OF THE ORDERS. 
THE COMMISSIONER'S DECISION ON THE PETITION FOR REHEARING SETS OUT THE
RECORD FACTS SHOWING REPRESENTATION AND NOTICE.  WE THEREFORE CONCLUDE
THAT THE COMMISSIONER DID NOT REEXAMINE THE BASIS OF ANY OF THE
ORIGINAL ORDERS AND THAT TIME FOR FILING THE PETITIONS FOR REVIEW WAS
NOT EXTENDED. 

III.  SINCE THE PETITIONS FOR REHEARING, IN OUR OPINION, DID NOT
EXTEND THE TIME FOR REVIEW, WE ARE BROUGHT TO EXAMINE THE QUESTION AS
TO WHETHER SEC. 39(C), SUPRA NOTE 2, IS A LIMITATION ON THE POWER OF
THE DISTRICT COURT TO ACT OR ON THE RIGHT OF A PARTY TO SEEK REVIEW. 
COURTS OF BANKRUPTCY ARE COURTS OF EQUITY WITHOUT TERMS. 
COMMISSIONERS, LIKE REFEREES, MASTERS AND RECEIVERS, SUPERVISE ESTATES
UNDER THE EYES OF THE COURT WITH THEIR ORDERS SUBJECT TO ITS REVIEW. 
THE ENTIRE PROCESS OF REHABILITATION, REORGANIZATION OR LIQUIDATION IS
OPEN TO REEXAMINATION OUT OF TIME BY THE DISTRICT COURT, IN ITS
DISCRETION, AND SUBJECT TO INTERVENING RIGHTS.  CF. WAYNE GAS CO. V.
OWENS-ILLINOIS CO., 300 U.S. 131, 137; BOWMAN V. LOPERENA, 311 U.S.
262, 266. 

PRIOR TO THE ADOPTION OF 39(C), GENERAL ORDER IN BANKRUPTCY NO.
XXVII,  FN9  NOW ABROGATED, FN10  GOVERNED REVIEW OF REFEREES' ORDERS
BUT IT PRESCRIBED NO TIME LIMITATIONS.  IT WAS HELD THAT PETITIONS
SHOULD BE FILED WITHIN A REASONABLE TIME.  FN11  SOME LOCAL COURT RULES
THEREFORE SPECIFIED TIME LIMITATIONS.  WHERE SUCH RULES IMPOSED
DEFINITE LIMITS ON THE TIME WITHIN WHICH A PETITION FOR REVIEW COULD BE
FILED, WITH EXTENSIONS TO BE GRANTED ON CAUSE SHOWN, OUT OF TIME
PETITIONS NEVERTHELESS WERE ENTERTAINED AND CONSIDERED IF CAUSE WAS
SHOWN.  FN12 

PROCEEDING FOR REVIEW OF A REFEREE'S ORDER IN THE INTEREST OF CERTAINTY
AND UNIFORMITY BUT THE LEGISLATIVE HISTORY REVEALS NO INTENTION TO
CHANGE THE PREEXISTING RULE AS TO POWER.  FN13  INDEED, THE CHANDLER
ACT BY THE AMENDMENT TO SEC. 2(10)  FN14  SOUGHT TO CONFORM THE ACT TO
THE PREVAILING PRACTICE AS TO THE BANKRUPTCY COURT'S EXERCISE OF ITS
APPELLATE JURISDICTION OVER REFEREES' ORDERS.  FN15  WE DO NOT THINK
SEC. 39(C) WAS INTENDED TO BE A LIMITATION ON THE SOUND DISCRETION OF
THE BANKRUPTCY COURT TO PERMIT THE FILING OF PETITIONS FOR REVIEW AFTER
THE EXPIRATION OF THE PERIOD.  THE POWER IN THE BANKRUPTCY COURT TO
REVIEW ORDERS OF THE REFEREE IS UNQUALIFIEDLY GIVEN IN SEC. 2(10).  THE
LANGUAGE QUOTED FROM SEC. 39(C) IS RATHER A LIMITATION ON THE "PERSON
AGGRIEVED" TO FILE SUCH A PETITION AS A MATTER OF RIGHT.  FN16 

THE REVIEW OUT OF TIME OF THE COMMISSIONER'S ORDERS IS THEN A MATTER
FOR THE DISCRETION OF THE DISTRICT COURT.  AS THAT COURT WAS OF THE
OPINION IT WAS "WITHOUT JURISDICTION" BY VIRTUE OF SEC. 39(C), ITS
DISCRETION WAS NOT EXERCISED.  HOWEVER, AS WE ARE OF THE VIEW THAT THE
PETITIONS FOR REHEARING WERE NOT SUPPORTED BY ADEQUATE FACTS JUSTIFYING
A REEXAMINATION OF THE BASES FOR THE ORDERS OF AUGUST 13 AND SEPTEMBER
7, 1940, AND NO OTHERS ARE ALLEGED, AND THAT THEREFORE THE DISTRICT
COURT SHOULD NOT HAVE ENTERED INTO AN OUT OF TIME REVIEW OF THESE
ORIGINAL ORDERS, THERE IS NO REASON FOR A REVERSAL OF THE JUDGMENTS. 
THE COMMISSIONER UPHELD THE PETITIONS FOR REHEARING AGAINST A MOTION TO
DISMISS BECAUSE THEY WERE OUT OF TIME.  HE THEREUPON HEARD AND PASSED
UPON THE PETITION'S MERITS AS BASES FOR REHEARINGS.  HIS REASONS FOR
REFUSING TO OPEN THE ORIGINAL ORDERS COMPLAINED OF ARE ADEQUATE AND
AMPLY SUPPORTED BY THE RECORD.  THE APPRAISAL WAS MADE AND THE TIME OF
STAY FIXED PURSUANT TO THE DEBTOR'S MOTION, HE WAS REPRESENTED BY ONE
OR MORE COUNSEL AT EACH MEETING, HAD OPPORTUNITY TO PRESENT EVIDENCE,
AND STIPULATED TO THE PERISHABLE CHARACTER OF THE PROPERTY ORDERED
SOLD.  SEE THE LAST PARAGRAPH OF DIVISION II. 

IV.  ON ACCOUNT OF DEBTOR'S MOTION, REQUESTING THE RUNNING OF THE
MORATORIUM OF THREE YEARS FROM APRIL 26, 1940, THE DAY OF HIS
ADJUDICATION IN BANKRUPTCY UNDER 75(S), WE DO NOT CONSIDER THE
CORRECTNESS OF A STAY OF LESS THAN THREE YEARS UNDER OTHER
CIRCUMSTANCES.  IN THIS INSTANCE IT WAS CORRECT.  AFFIRMED. 

FN1  THE REFEREE APPOINTED BY THE DISTRICT COURT FOR HANDLING
AGRICULTURAL COMPOSITIONS IS KNOWN AS A CONCILIATION COMMISSIONER. 
SEC. 75(A)-(R).  WHEN THE FARMER SEEKS BANKRUPTCY UNDER (S) THE
CONCILIATION COMMISSIONER ACTS AS REFEREE.  SEC. 75(S)(4).  49 STAT.
942. 

FN2  52 STAT. 840, 858. 

WITHIN TEN DAYS AFTER THE ENTRY THEREOF OR WITHIN SUCH EXTENDED TIME AS
THE COURT MAY FOR CAUSE SHOWN ALLOW, FILE WITH THE REFEREE A PETITION
FOR REVIEW OF SUCH ORDER BY A JUDGE AND SERVE A COPY OF SUCH PETITION
UPON THE ADVERSE PARTIES WHO WERE REPRESENTED AT THE HEARING.  ...  " 

FN3  49 STAT. 942, 943. 

MAJORITY IN NUMBER AND AMOUNT OF ALL CREDITORS WHOSE CLAIMS ARE
AFFECTED BY A COMPOSITION AND/OR EXTENSION PROPOSAL, OR IF HE FEELS
AGGRIEVED BY THE COMPOSITION AND/OR EXTENSION, MAY AMEND HIS PETITION
OR ANSWER, ASKING TO BE ADJUDGED A BANKRUPT.  SUCH FARMER MAY, AT THE
SAME TIME, OR AT THE TIME OF THE FIRST HEARING, PETITION THE COURT THAT
ALL OF HIS PROPERTY, WHEREVER LOCATED, WHETHER PLEDGED, ENCUMBERED, OR
UNENCUMBERED, BE APPRAISED, AND THAT HIS UNENCUMBERED EXEMPTIONS, AND
UNENCUMBERED INTEREST OR EQUITY IN HIS EXEMPTIONS, AS PRESCRIBED BY
STATE LAW, BE SET ASIDE TO HIM, AND THAT HE BE ALLOWED TO RETAIN
POSSESSION, UNDER THE SUPERVISION AND CONTROL OF THE COURT, OF ANY PART
OR PARCEL OR ALL OF THE REMAINDER OF HIS PROPERTY, INCLUDING HIS
ENCUMBERED EXEMPTIONS, UNDER THE TERMS AND CONDITIONS SET FORTH IN THIS
JURISDICTION OF THE COURT, SHALL DESIGNATE AND APPOINT APPRAISERS, AS
PROVIDED FOR IN THIS ACT.  SUCH APPRAISERS SHALL APPRAISE ALL OF THE
PROPERTY OF THE DEBTOR, WHEREVER LOCATED, AT ITS THEN FAIR AND
REASONABLE MARKET VALUE.  THE APPRAISALS SHALL BE MADE IN ALL OTHER
RESPECTS WITH RIGHTS OF OBJECTIONS, EXCEPTIONS, AND APPEALS, IN
ACCORDANCE WITH THIS ACT:  PROVIDED, THAT IN PROCEEDINGS UNDER THIS
WITHIN FOUR MONTHS FROM THE DATE THAT THE REFEREE APPROVES THE
APPRAISAL." 

SIX OTHER SUBDIVISIONS OF SUBSECTION (S) FOLLOW, NUMBERED (1) TO (6)
INCLUSIVE, AND RELATE CHIEFLY TO PROCEEDINGS AFTER APPRAISAL. 

FN4  THE LEGISLATIVE HISTORY OF THE PROVISO INDICATES THE SOUNDNESS
OF THIS CONCLUSION.  IT APPEARS FIRST IN THE EARLIER SUBSECTION (S), 48
STAT. 1289, WHICH WAS HELD UNCONSTITUTIONAL IN LOUISVILLE JOINT STOCK
LAND BANK V. RADFORD, 295 U.S. 555.  THE PRECEDING PROVISIONS WERE
SUBSTANTIALLY THE SAME AS THE PRESENT ONES BUT THE PROVISO READ "THAT
IN CASE OF REAL ESTATE EITHER PARTY MAY FILE OBJECTIONS, EXCEPTIONS,
AND APPEALS WITHIN ONE YEAR FROM DATE OF ORDER APPROVING APPRAISAL." 
THE SPECIFICATION OF REAL ESTATE, OF COURSE, EXCLUDED THE PROVISO FROM
ANY GENERALITY OF SCOPE.  WHEN THE SECTION WAS AMENDED AFTER THE
RADFORD CASE, THE COMMITTEE REPORTS TREATED THE PARAGRAPH OF (S), AS
QUOTED IN NOTE 3, SEPARATELY FROM THE SUCCEEDING NUMBERED PARAGRAPHS
AND THE LANGUAGE CONNOTES THE IDEA THAT THE PROVISO RELATES ONLY TO
APPEALS FROM THE APPRAISAL.  THE COMMENT IS AS FOLLOWS:  "IT PROVIDES
THAT THE REFEREE, UNDER THE JURISDICTION OF THE COURT, SHALL DESIGNATE
AND APPOINT APPRAISERS, TO APPRAISE ALL OF THE PROPERTY OF THE DEBTOR,
AT ITS THEN FAIR AND REASONABLE MARKET VALUE.  THE APPRAISAL IS MADE IN
ALL OTHER RESPECTS, WITH RIGHTS OF OBJECTIONS, EXCEPTIONS, AND APPEALS,
IN ACCORDANCE WITH THE BANKRUPTCY ACT; AND EITHER PARTY MAY FILE
OBJECTIONS, EXCEPTIONS, OR TAKE SUCH APPEALS WITHIN 4 MONTHS.  SURELY
THERE IS NO QUESTION OF CONSTITUTIONALITY UP TO THIS POINT."  S. REP.
NO. 985, 74TH CONG., 1ST SESS., P. 3; H. REP. NO. 1808, 74TH CONG., 1ST
SESS., PP. 3-4. 

FN5  SEE NOTE 2, SUPRA. 

FN6  SEE THE DISCUSSION IN DIVISION III OF THIS OPINION. 

FN7  WHERE A PETITION FOR REHEARING IS FILED BEFORE THE TIME FOR A
PETITION FOR REVIEW HAS EXPIRED, IT TOLLS THE RUNNING OF THE TIME, AND
LIMITATION UPON PROCEEDINGS FOR REVIEW BEGINS FROM THE DATE OF DENIAL
OF THE PETITION FOR REHEARING.  MORSE V. UNITED STATES, 270 U.S. 151,
153-4; UNITED STATES V. SEMINOLE NATION, 299 U.S. 417, 421; GYPSY OIL
CO. V. ESCOE, 275 U.S. 498. 

FN8  BERNARDS V. JOHNSON, 314 U.S. 19, 31; BOWMAN V. LOPERENA, 311
U.S. 262, AND CASES CITED; CHAPMAN V. FEDERAL LAND BANK, 117 F.2D 321,
324. 

FN9  172 U.S. 662. 

FN10  ABROGATED JANUARY 16, 1939, EFFECTIVE FEBRUARY 13, 1939.  305
U.S. 681. 

FN11  AMERICAN TRUST CO. V. W.S. DOIG, INC., 23 F.2D 398; CRIM V.
WOODFORD, 136 F. 34; BACON V. ROBERTS, 146 F. 729; IN RE GRANT, 143 F.
661; IN RE FOSS, 147 F. 790.  8 REMINGTON ON BANKRUPTCY (5TH ED. 1942)
SEC. 3704. 

FN12  IN RE OAKLAND & BELGRADE SILVER FOX RANCH CO., 26 F.2D 748; IN
RE T.M. LESHER & SON, 176 F. 650; AMICK V. HOTZ, 101 F.2D 311; IN RE
WISTER, 232 F. 898, AFFIRMED 237 F. 793; SEE ROBERTS AUTO & RADIO
SUPPLY CO. V. DATTLE, 44 F.2D 159. 

FN13  H. REP. NO. 1409, 75TH CONG., 1ST SESS., P. 11; COMMITTEE
PRINT, H.R. 12889, 74TH CONG., 2D SESS., 149-50. 

FN14  SECTION 2(10) GIVES THE BANKRUPTCY COURT JURISDICTION TO
"CONSIDER RECORDS, FINDINGS, AND ORDERS CERTIFIED TO THE JUDGES BY
REFEREES, AND CONFIRM, MODIFY, OR REVERSE SUCH FINDINGS AND ORDERS, OR
RETURN SUCH RECORDS WITH INSTRUCTIONS FOR FURTHER PROCEEDINGS.  52
STAT. 842.  WHEREAS THE SUBSECTION FORMERLY READ "CONSIDER AND CONFIRM,
MODIFY OR OVERRULE, OR RETURN, WITH INSTRUCTIONS FOR FURTHER
PROCEEDINGS, RECORDS AND FINDINGS CERTIFIED TO THEM BY REFEREES."  30
STAT. 545. 

FN15  H. REP. NO. 1409, SUPRA, P. 19; S. REP. NO. 1916, 75TH CONG.,
3D SESS., P. 11, COMPARE COMMITTEE PRINT, H.R. 12889, SUPRA, P. 11. 

FN16  THUMMESS V. VON HOFFMAN, 109 F.2D 291; IN RE ALBERT, 122 F.2D
393; BOYUM V. JOHNSON, 127 F.2D 491, 497, SEE BIGGS V. MAYS, 125 F.2D
693, 696; IN RE LORING, 30 F.SUPP.  758, 759.  CONTRA, IN RE PFISTER,
123 F.2D 543, 548; IN RE PARENT, 30 F.SUPP.  943.  COMPARE 2 COLLIER ON
BANKRUPTCY (14TH ED. 1940) SECS. 39.16, 39.20; 8 REMINGTON ON
BANKRUPTCY, SUPRA, SEC. 3705. 
..END :






















HELVERING V. STUART, 317 U.S. 154 


NO. 49.  ARGUED OCTOBER 23, 1942.  - DECIDED NOVEMBER 16, 1942.  - 124
F.2D 772, REVERSED IN PART - AFFIRMED IN PART. 


1.  IN RESISTING A TAXPAYER'S PETITION FOR REDETERMINATION OF
DEFICIENCIES, THE COMMISSIONER OF INTERNAL REVENUE MAY INVOKE BEFORE
THE CIRCUIT COURT OF APPEALS ON REVIEW, AND IN THIS COURT BY
CERTIORARI, PROVISIONS OF THE REVENUE LAW WHICH WERE NOT RELIED ON OR
ADDUCED IN HIS ANSWER TO THE TAXPAYER'S PETITION.  P. 159. 

2.  SECTION 166 OF THE REVENUE ACT OF 1934, IN PROVIDING THAT THE
INCOME FROM A TRUST SHALL BE TAXABLE AS INCOME OF THE GRANTOR "WHERE AT
ANY TIME THE POWER TO REVEST IN THE GRANTOR TITLE TO ANY PART OF THE
CORPUS OF THE TRUST IS VESTED IN ANY PERSON NOT HAVING A SUBSTANTIAL
ADVERSE INTEREST IN THE DISPOSITION OF SUCH PART OF THE CORPUS OR THE
INCOME THEREFROM," INTENDS THAT THE QUESTION WHETHER SUCH POWER IS SO
VESTED BY THE TRUST INSTRUMENT SHALL BE DETERMINED BY THE CONSTRUCTION
AND LEGAL EFFECT OF THE INSTRUMENT UNDER THE STATE LAW.  P. 161. 

3.  SECTION 167 OF THE REVENUE LAW OF 1934, IN PROVIDING THAT "WHERE
ANY PART OF THE INCOME OF A TRUST MAY, IN THE DISCRETION OF THE GRANTOR
OR OF ANY PERSON NOT HAVING A SUBSTANTIAL ADVERSE INTEREST IN THE
DISPOSITION OF SUCH PART OF THE INCOME, BE DISTRIBUTED TO THE GRANTOR;
...  SUCH PART OF THE INCOME OF THE TRUST SHALL BE INCLUDED IN
COMPUTING THE NET INCOME OF THE GRANTOR," INTENDS THAT WHETHER SUCH A
DISTRIBUTION IS PERMISSIBLE UNDER THE TRUST INSTRUMENT SHALL BE
DETERMINED BY THE STATE LAW.  UPON THE QUESTION WHETHER, UNDER THE LAW
OF ILLINOIS, IN A TRUST DEED FOR THE BENEFIT OF THE DONOR'S CHILDREN, A
PROVISION PURPORTING TO EMPOWER A MAJORITY OF THREE TRUSTEES (THE
DONOR'S WIFE, AND BROTHER) TO AMEND THE DEED, BY CHANGING THE
BENEFICIARIES AND IN OTHER RESPECTS, COULD BE APPLIED TO REVEST THE
PROPERTY IN THE DONOR, THIS COURT ACCEPTS THE REASONED JUDGMENT TO THE
CONTRARY OF THE COURT OF APPEALS WHOSE CIRCUIT EMBRACES THAT STATE.  P.
161. 

4.  IF REASONABLY AVOIDABLE THIS COURT SHOULD NOT UNDERTAKE FIRST
INSTANCE DETERMINATIONS OF RULES OF LOCAL LAW.  P. 164. 

5.  IT WOULD NOT BE AN ARBITRARY OR UNREASONABLE OR EVEN AN UNLIKELY
HOLDING ON THE PART OF THE COURTS OF ILLINOIS TO CONCLUDE THAT UNDER
THE TERMS OF THE TRUSTS INVOLVED HERE, EQUITY OUGHT TO AND WOULD
PREVENT THE WIFE AND BROTHER OF THE DONOR, CLAIMING, AS TRUSTEES,
AUTHORITY TO CHANGE THE BENEFICIARIES UNDER THE PROVISIONS OF THE
INDENTURE, FROM VESTING THE PROPERTY IN THEMSELVES OR IN THE DONOR OR
IN OTHERS FOR THE BENEFIT OF THEMSELVES OR THE DONOR, TO THE DETRIMENT
OF THE PRESENT BENEFICIARIES.  P. 164. 

6.  ON THE ASSUMPTION THAT UNDER SUCH A TRUST DEED THE ILLINOIS LAW
FORBIDS THE VESTING OF THE RES IN THE DONOR BY ACT OF THE TRUSTEES,
WITHIN THE INTENDMENT OF SEC. 166 OF THE REVENUE ACT OF 1934, SO ALSO
IT WOULD BE IMPOSSIBLE FOR THE TRUSTEES TO ACCUMULATE THE INCOME FOR
THE DONOR OR TO DISTRIBUTE IT TO HIM DIRECTLY, WITHIN THE INTENDMENT OF
SEC. 167.  P. 166. 

7.  UNDER THE ILLINOIS LAW, THE POWER TO AMEND WHICH COULD NOT BE
EXERCISED BY THE TRUSTEES IN FAVOR OF THE DONOR COULD NOT BE EXERCISED
IN FAVOR OF HIS CREDITORS.  P. 166. 

8.  UNDER SECS. 22(A) AND 167 OF THE REVENUE ACT OF 1934, WHERE THERE
IS A TRUST DIRECTING AND EMPOWERING THE TRUSTEES TO DEVOTE SO MUCH OF
THE NET INCOME, AS TO THEM SHALL SEEM ADVISABLE, TO THE EDUCATION,
SUPPORT AND MAINTENANCE OF THE DONOR'S MINOR CHILDREN, THE POSSIBILITY
OF THE USE OF THE INCOME TO RELIEVE THE DONOR, PRO TANTO, OF HIS
PARENTAL OBLIGATION, CAUSES THE ENTIRE NET INCOME TO BE TAXABLE AS
INCOME OF THE DONOR.  DOUGLAS V. WILLCUTS, 296 U.S. 1.  P. 167. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. R. DOUGLAS STUART.* 

*TOGETHER WITH NO. 48, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. JOHN STUART, ALSO ON WRIT OF CERTIORARI, 316 U.S. 654, TO THE
CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.  ARGUED OCTOBER 22
AND 23, 1942. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 316 U.S. 654, TO REVIEW TWO JUDGMENTS OF THE COURT BELOW,
REVERSING DECISIONS OF THE BOARD OF TAX APPEALS, 42 B.T.A. 1421,
SUSTAINING DEFICIENCY INCOME TAX ASSESSMENTS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE PETITIONS FOR CERTIORARI BRING HERE THE LIABILITY OF EACH
RESPONDENT FOR INCREASED INCOME TAXES FOR THE YEARS 1934 AND 1935.  A
DEFICIENCY WAS DETERMINED BY THE COMMISSIONER FOR EACH YEAR BECAUSE OF
THE TAXPAYERS' FAILURE TO INCLUDE IN THEIR RETURN INCOME FROM VARIOUS
TRUSTS PREVIOUSLY CREATED BY THEM FOR THE BENEFIT OF THEIR CHILDREN. 

THE TAXPAYERS ARE BROTHERS, RESIDENTS OF ILLINOIS.  IN 1930 JOHN
STUART, THE RESPONDENT IN NO. 48, CREATED ONE TRUST FOR EACH OF HIS
THREE CHILDREN:  JOAN, ELLEN AND JOHN.  LATER, IN 1932, R. DOUGLAS
STUART, THE RESPONDENT IN NO. 49, CREATED SUCH TRUSTS FOR EACH OF HIS
FOUR CHILDREN: ROBERT, ANNE, MARGARET AND HARRIET.  THE TRUSTS WERE
MUCH ALIKE.  THEY WERE MADE IN ILLINOIS AND SPECIFICALLY PROVIDED THAT
THEY WERE TO BE GOVERNED BY THE LAWS OF THAT STATE.  THE THREE CHILDREN
OF JOHN WERE ALL OF AGE BY JANUARY 1, 1934.  NONE OF THE CHILDREN OF
DOUGLAS WERE OF AGE DURING EITHER OF THE TAXABLE YEARS. 

BY THE CREATION OF THE TRUSTS, EACH TAXPAYER TRANSFERRED TO THREE
TRUSTEES CERTAIN SHARES OF THE COMMON STOCK OF THE QUAKER OATS COMPANY,
OF WHICH RESPONDENTS WERE RESPECTIVELY PRESIDENT AND FIRST VICE
PRESIDENT.  THE TRUSTEES NAMED IN EACH INSTRUMENT WERE THE TAXPAYER
SETTLOR, HIS WIFE AND HIS BROTHER.  THE TRUSTS CREATED BY JOHN THUS HAD
JOHN, HIS WIFE AND DOUGLAS AS TRUSTEES, AND THOSE CREATED BY DOUGLAS
HAD DOUGLAS, HIS WIFE AND JOHN AS TRUSTEES. 

THE TRUSTEES WERE GIVEN THE POWER AND AUTHORITY OF "ABSOLUTE OWNERS"
OVER THE HANDLING OF THE FINANCIAL DETAILS OF THE RESPECTIVE TRUSTS. 
THEY WERE FREED FROM LIABILITY OR RESPONSIBILITY EXCEPT SUCH AS WERE
DUE TO ACTUAL FRAUD OR WILLFUL MISMANAGEMENT. 

IN THE TRUSTS CREATED BY R. DOUGLAS STUART FOR HIS MINOR CHILDREN,
THE TRUSTEES WERE DIRECTED TO "PAY OVER TO (THE BENEFICIARY) SO MUCH OF
THE NET INCOME FROM THE TRUST FUND, OR SHALL APPLY SO MUCH OF SAID
INCOME FOR HIS EDUCATION, SUPPORT AND MAINTENANCE, AS TO THEM SHALL
SEEM ADVISABLE, AND IN SUCH MANNER AS TO THEM SHALL SEEM BEST, AND FREE
FROM CONTROL OF ANY GUARDIAN, THE UNEXPENDED PORTION, IF ANY, OF SUCH
INCOME TO BE ADDED TO THE PRINCIPAL OF THE TRUST FUND.  WHEN THE SAID
(BENEFICIARY) SHALL ATTAIN THE AGE OF TWENTY-FIVE YEARS, THE TRUSTEES
SHALL PAY OVER AND DELIVER TO HIM ONE-HALF OF THE TRUST FUND; AND THEY
SHALL PAY OVER TO HIM IN REASONABLE INSTALLMENTS THE INCOME FROM THE
REMAINING ONE-HALF OF THE TRUST FUND UNTIL HE SHALL ATTAIN THE AGE OF
THIRTY YEARS, WHEN THEY SHALL PAY OVER AND DELIVER TO HIM THE REMAINDER
OF THE TRUST FUND." 

IN THE TRUSTS CREATED BY JOHN STUART FOR HIS ADULT CHILDREN, THE
DIRECTIONS WERE THAT THE TRUSTEES SHOULD FOR FIFTEEN YEARS "PAY OVER
AND DISTRIBUTE, IN REASONABLE INSTALLMENTS," TO THE BENEFICIARIES SO
MUCH OF THE NET INCOME "AS THEY IN THEIR SOLE DISCRETION SHALL DEEM
ADVISABLE, THE UNDISTRIBUTED PORTION OF SUCH INCOME TO BE ADDED TO AND
BECOME A PART OF THE PRINCIPAL OF THE TRUST FUND."  AFTER THE FIFTEEN
YEARS, THE ENTIRE NET INCOME WAS TO BE PAID TO THE BENEFICIARY FOR AND
DURING HER LIFE. 

EACH TRUST PROVIDED FOR THE DEVOLUTION OF THE CORPUS TO THE ISSUE OF
THE BENEFICIARY NAMED IN THE INSTRUMENT, AND IN DEFAULT OF SUCH ISSUE
TO THE ISSUE OF THE DONOR, AND IN DEFAULT OF ISSUE OF EITHER TO NAMED
EDUCATIONAL OR CHARITABLE INSTITUTIONS. 

TWO PARAGRAPHS RELATING TO CHANGES AND AMENDMENTS ARE IMPORTANT. 
THEY WERE THE SAME IN ALL THE INSTRUMENTS AND READ AS FOLLOWS: 

"EIGHTH.  THE DONOR RESERVES AND SHALL HAVE THE RIGHT AT ANY TIME AND
FROM TIME TO TIME TO DIRECT THE TRUSTEES TO SELL THE WHOLE OF THE TRUST
FUND, OR ANY PART THEREOF, AND TO REINVEST THE PROCEEDS IN SUCH OTHER
PROPERTY AS THE DONOR SHALL DIRECT.  THE DONOR FURTHER RESERVES AND
SHALL HAVE THE RIGHT AT ANY TIME AND FROM TIME TO TIME TO WITHDRAW AND
TAKE OVER TO HIMSELF THE WHOLE OR ANY PART OF THE TRUST FUND UPON FIRST
TRANSFERRING AND DELIVERING TO THE TRUSTEES OTHER PROPERTY SATISFACTORY
TO THEM OF A MARKET VALUE AT LEAST EQUAL TO THAT OF THE PROPERTY SO
WITHDRAWN. 

"NINTH.  DURING THE LIFE OF THE DONOR, THE SAID (WIFE AND BROTHER OF
THE DONOR), OR THE SURVIVOR OF THEM, SHALL HAVE FULL POWER AND
AUTHORITY, BY AN INSTRUMENT IN WRITING SIGNED AND DELIVERED BY THEM OR
BY THE SURVIVOR OF THEM TO THE TRUSTEES, TO ALTER, CHANGE OR AMEND THIS
INDENTURE AT ANY TIME AND FROM TIME TO TIME BY CHANGING THE BENEFICIARY
HEREUNDER, OR BY CHANGING THE TIME WHEN THE TRUST FUND, OR ANY PART
THEREOF, OR THE INCOME, IS TO BE DISTRIBUTED, OR BY CHANGING THE
TRUSTEES, OR IN ANY OTHER RESPECT." 

PURSUANT TO THE AUTHORITY OF PARAGRAPH NINTH, THE TWO TRUSTEES
AUTHORIZED IN THE TRUSTS TO MAKE CHANGES DID PROVIDE ON THE 2D AND 3D
OF AUGUST, 1935, RESPECTIVELY, FOR THE CANCELLATION AND EXPUNCTION OF
BOTH THE EIGHTH AND NINTH PARAGRAPHS, SET OUT ABOVE, AND FOR THE
SUBSTITUTION OF THE FOLLOWING IN LIEU OF THE EXPUNGED NINTH PARAGRAPH: 

"NINTH.  THIS INDENTURE AND ALL OF THE PROVISIONS THEREOF ARE
IRREVOCABLE AND NOT SUBJECT TO ALTERATION, CHANGE OR AMENDMENT." 

THE COMMISSIONER DOES NOT CLAIM THAT ANY TRUST INCOME RECEIVED AFTER
THESE AMENDMENTS IS ATTRIBUTABLE TO THE TAXPAYERS. 

IN ANSWER TO THE TAXPAYER'S PETITION IN NO. 49 FOR THE
REDETERMINATION OF THE DEFICIENCIES, THE COMMISSIONER ASSERTED THE
INCREASE WAS REQUIRED BY THE PROVISIONS OF SECS. 22, 166, AND 167 OF
THE REVENUE ACT OF 1934, 48 STAT. 680.  SECTION 22 WAS NOT RAISED BY
THE COMMISSIONER IN HIS ANSWER TO THE PETITION IN NO. 48.  BUT THE
APPLICABILITY OF THAT SECTION WAS RAISED BY THE COMMISSIONER AS
APPELLEE BEFORE THE CIRCUIT COURT OF APPEALS (HELVERING V. GOWRAN, 302
U.S. 238, 245).  THE CONTENTION IN THE COURT OF APPEALS RESTED ON THE
FACTS STIPULATED IN THE BOARD OF TAX APPEALS.  ON THE REJECTION OF THAT
GROUND IN THE COURT BELOW, THE COMMISSIONER WAS ENTITLED TO RAISE THE
QUESTION, AS HE DID, IN HIS PETITION FOR CERTIORARI AND RELY ON SEC. 22
IN THIS COURT.  HELVERING V. GOWRAN, IBID, 246; CF. HORMEL V.
HELVERING, 312 U.S. 552.  SO FAR AS PERTINENT THE SECTIONS ARE SET OUT
IN THE FOOTNOTE BELOW.* 

*TEXT OF STATUTES, ID., 686, 729. 

"SEC. 22.  GROSS INCOME. 

(A)  GENERAL DEFINITION.  - 'GROSS INCOME' INCLUDES GAINS, PROFITS,
AND INCOME DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL
SERVICE, OF WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER.  ... 

     .         .         .       .         . 

"SEC. 166.  REVOCABLE TRUSTS. 

WHERE AT ANY TIME THE POWER TO REVEST IN THE GRANTOR TITLE TO ANY
PART OF THE CORPUS OF THE TRUST IS VESTED - 

     .         .         .         .         . 

(2)  IN ANY PERSON NOT HAVING A SUBSTANTIAL ADVERSE INTEREST IN THE
DISPOSITION OF SUCH PART OF THE CORPUS OR THE INCOME THEREFROM, THEN
THE INCOME OF SUCH PART OF THE TRUST SHALL BE INCLUDED IN COMPUTING THE
NET INCOME OF THE GRANTOR. 

"SEC. 167.  INCOME FOR BENEFIT OF GRANTOR. 

(A)  WHERE ANY PART OF THE INCOME OF A TRUST - 

.         .         .         .         . 

(2)  MAY, IN THE DISCRETION OF THE GRANTOR OR OF ANY PERSON NOT
HAVING A SUBSTANTIAL ADVERSE INTEREST IN THE DISPOSITION OF SUCH PART
OF THE INCOME, BE DISTRIBUTED TO THE GRANTOR; 

     .         .       .         .         . THEN SUCH PART OF THE
INCOME OF THE TRUST SHALL BE INCLUDED IN COMPUTING THE NET INCOME OF
THE GRANTOR." 

THE BOARD OF TAX APPEALS UPHELD THE COMMISSIONER'S DETERMINATIONS
THAT SEC. 166 GOVERNED THE TRUSTS' INCOMES BECAUSE THE POWERS OF THE
WIFE AND BROTHER, AS TRUSTEES, UNDER THE NINTH PARAGRAPH WERE
SUFFICIENT TO REVEST THE FUNDS IN THE GRANTORS AND BECAUSE THE TRUSTEES
WERE WITHOUT SUBSTANTIAL ADVERSE INTERESTS.  THE CIRCUIT COURT OF
APPEALS REVERSED THIS DETERMINATION, STUART V. COMMISSIONER, 124 F.2D
772, ON ITS CONCLUSION THAT UNDER THE LAW OF ILLINOIS "THE WIFE AND
BROTHER AS TRUSTEES HAD NO AUTHORITY  ...  TO REVEST THE PROPERTY IN
THE GRANTOR."  THE SAME REASONING LED THE APPELLATE COURT TO SAY THAT
NEITHER SEC. 167 NOR SEC. 22 WAS APPLICABLE, EXCEPT AS TO THE INCOME OF
THE DOUGLAS STUART TRUSTS ACTUALLY USED FOR THE SUPPORT OF A MINOR
CHILD. 

THE APPLICATIONS FOR CERTIORARI WERE GRANTED BECAUSE OF DIFFERING
VIEWS IN THE COURTS OF APPEALS AS TO THE INCLUSION OF THE INCOMES OF
TRUSTS WITH SIMILAR PROVISIONS IN THE GROSS INCOMES OF THE DONORS BY
VIRTUE OF THE SECTIONS OF THE ACT RELIED UPON BY THE COMMISSIONER. 
ALTMAIER V. COMMISSIONER, 116 F.2D 162; FULHAM V. COMMISSIONER, 110
F.2D 916; WHITELEY V. COMMISSIONER, 120 F.2D 782; COMMISSIONER V. BUCK,
120 F.2D 775. 

TO REACH A DECISION AS TO THE APPLICABILITY OF SECS. 166 AND 167 OF
THE REVENUE ACT OF 1934(SEE FOOTNOTE, P. 159, SUPRA) TO THESE TRUSTS,
THE INSTRUMENTS MUST BE CONSTRUED TO DETERMINE WHETHER THE POWER TO
REVEST TITLE TO ANY PART OF THE CORPORA IN THE GRANTORS, OR TO
DISTRIBUTE TO THEM ANY OF THE INCOME, LIES WITH ANY PERSONS NOT HAVING
A SUBSTANTIAL ADVERSE INTEREST TO THE GRANTORS.  THAT CONSTRUCTION MUST
BE MADE IN THE LIGHT OF RULES OF LAW FOR THE INTERPRETATION OF SUCH
DOCUMENTS.  THE INTENTION OF CONGRESS CONTROLS WHAT LAW, FEDERAL OR
STATE, IS TO BE APPLIED.  BURNET V. HARMEL, 287 U.S. 103, 110; LYETH V.
HOEY, 305 U.S. 188, 194.  SINCE THE FEDERAL REVENUE LAWS ARE DESIGNED
FOR A NATIONAL SCHEME OF TAXATION, THEIR PROVISIONS ARE NOT TO BE
DEEMED SUBJECT TO STATE LAW "UNLESS THE LANGUAGE OR NECESSARY
IMPLICATION OF THE SECTION INVOLVED" SO REQUIRES.  UNITED STATES V.
PELZER, 312 U.S. 399, 402-3.  THIS DECISION APPLIED FEDERAL DEFINITION
TO DETERMINE WHETHER AN INTEREST IN PROPERTY WAS CALLED A "FUTURE
INTEREST."  WHEN CONGRESS FIXES A TAX ON THE POSSIBILITY OF THE
REVESTING OF PROPERTY OR THE DISTRIBUTION OF INCOME, THE "NECESSARY
IMPLICATION," WE THINK, IS THAT THE POSSIBILITY IS TO BE DETERMINED BY
THE STATE LAW.  GRANTEES UNDER DEEDS, WILLS AND TRUSTS, ALIKE, TAKE
ACCORDING TO THE RULE OF THE STATE LAW.  THE POWER TO TRANSFER OR
DISTRIBUTE ASSETS OF A TRUST IS ESSENTIALLY A MATTER OF LOCAL LAW. 
BLAIR V. COMMISSIONER, 300 U.S. 5, 9; FREULER V. HELVERING, 291 U.S.
35, 43-45.  FN1  CONGRESS HAS SELECTED AN EVENT, THAT IS THE RECEIPT OR
DISTRIBUTIONS OF TRUST FUNDS BY OR TO A GRANTOR, NORMALLY BROUGHT ABOUT
BY LOCAL LAW, AND HAS DIRECTED A TAX TO BE LEVIED IF THAT EVENT MAY
OCCUR.  WHETHER THAT EVENT MAY OR MAY NOT OCCUR DEPENDS UPON THE
INTERPRETATION PLACED UPON THE TERMS OF THE INSTRUMENT BY STATE LAW. 
ONCE RIGHTS ARE OBTAINED BY LOCAL LAW, WHATEVER THEY MAY BE CALLED,
THESE RIGHTS ARE SUBJECT TO THE FEDERAL DEFINITION OF TAXABILITY. 
RECENTLY IN DEALING WITH THE ESTATE TAX LEVIED UPON THE VALUE OF
PROPERTY PASSING UNDER A GENERAL POWER, WE SAID THAT "STATE LAW CREATES
LEGAL INTERESTS AND RIGHTS.  THE FEDERAL REVENUE ACTS DESIGNATE WHAT
INTERESTS OR RIGHTS, SO CREATED, SHALL BE TAXED."  MORGAN V.
COMMISSIONER, 309 U.S. 78, 80(A CASE DEALING WITH THE TAXABILITY AT
DEATH OF PROPERTY PASSING UNDER A GENERAL POWER OF APPOINTMENT).  IN
THIS CASE, AS IN LYETH V. HOEY,  FN2  WE WERE DETERMINING WHAT
INTERESTS OR RIGHTS SHOULD BE TAXED, NOT WHAT INTERESTS OR RIGHTS HAD
BEEN CREATED, AND THEREFORE APPLIED THE FEDERAL RULE.  CF. BURNET V.
HARMEL, 287 U.S. 103, 110; PALMER V. BENDER, 287 U.S. 551, 555; HEINER
V. MELLON, 304 U.S. 271, 279; HELVERING V. FULLER, 310 U.S. 69, 74.  IN
THIS VIEW THE RULES OF LAW TO BE APPLIED ARE THOSE OF ILLINOIS.  THAT
STATE IS THE RESIDENCE OF THE PARTIES, THE PLACE OF EXECUTION OF THE
INSTRUMENT, AS WELL AS THE JURISDICTION CHOSEN BY THE PARTIES TO GOVERN
THE INSTRUMENT. 

THIS WAS THE VIEW OF THE CIRCUIT COURT OF APPEALS.  124 F.2D 772,
778.  THEIR EXAMINATION OF THE ILLINOIS LAW LED THEM TO CONCLUDE THAT
"THE WIFE AND BROTHER AS TRUSTEES HAD NO AUTHORITY UNDER THE ILLINOIS
LAW TO REVEST THE PROPERTY IN THE GRANTOR," A REQUIREMENT FOR LIABILITY
UNDER SEC. 166.  THIS CONCLUSION DOES NOT SPRING FROM A STATUTE OF THAT
STATE NOR EVEN FROM A CLEAR OR SATISFYING LINE OF DECISIONS.  IT IS,
HOWEVER, THE REASONED JUDGMENT OF THE CIRCUIT WHICH INCLUDES ILLINOIS
IN WHICH A JUDGE OF LONG EXPERIENCE IN THE JURISPRUDENCE OF THAT STATE
PARTICIPATED.  WITHOUT A DEFINITE CONVICTION OF ERROR IN THE
CONCLUSION, THIS COURT WILL NOT REVERSE THAT JUDGMENT.  MACGREGOR V.
STATE MUTUAL LIFE ASSURANCE CO., 315 U.S. 280.  CF. REITZ V. MEALEY,
314 U.S. 33, P. 39; RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496, 499. 
THE GOVERNMENT DOES NOT CHALLENGE THE CONCLUSION OF THE COURT OF
APPEALS THAT ILLINOIS LAW CONTROLS.  IT SHARPLY DIFFERS AS TO THE
MEANING OF PARAGRAPH NINTH, CONSTRUED GENERALLY, AND AS TO THE ILLINOIS
RULE, BUT DOES NOT URGE THAT A FEDERAL RULE OF INTERPRETATION APPLIES. 

THE SUGGESTION IS MADE THAT HELVERING V. FITCH, 309 U.S. 149, 156;
HELVERING V. FULLER, 310 U.S. 69; HELVERING V. LEONARD, ID. 80; AND
PEARCE V. COMMISSIONER, 315 U.S. 543, REQUIRE DETERMINATION BY THIS
COURT OF THE ILLINOIS LAW.  IN EACH OF THESE CASES, AFTER COURTS OF
APPEALS HAD GIVEN THEIR OPINION OF THE LAW OF THE RESPECTIVE STATES ON
THE POWER OF THE STATE COURTS TO ALTER OR REVISE PROPERTY SETTLEMENTS
IN JUDGMENTS OF DIVORCE, WE REVIEWED THE STATE DECISIONS TO DETERMINE
WHETHER THE HUSBAND OR WIFE WAS TAXABLE UNDER THE FEDERAL TAX SYSTEM
UPON THE INCOME FROM THE SETTLEMENTS.  THIS DEPENDED UPON WHETHER THE
HUSBAND COULD SHOW CLEARLY AND CONVINCINGLY UNDER THE STATE LAW THAT
THE SETTLEMENT INCOME WAS NOT RECEIVED BY THE WIFE PURSUANT TO HIS
CONTINUING OBLIGATION TO SUPPORT OR WHETHER THE WIFE COULD RAISE DOUBTS
AND UNCERTAINTIES AS TO THE PROPER CONCLUSION.  PEARCE V. COMMISSIONER,
SUPRA, 547. 

IT IS TRUE WE EXAMINED THE STATE CASES TO DETERMINE THE APPLICABLE
STATE LAW, BUT WE DID IT FOR THE PURPOSE OF DETERMINING WHETHER THE
TAXPAYERS HAD MET THEIR BURDEN OF PROVING THE COMMISSIONER OF INTERNAL
REVENUE WRONG IN ASSESSING DEFICIENCIES AGAINST THEM.  WE COULD DO THE
SAME HERE BUT WE ARE SATISFIED THAT THE FINDING OF THE COURT OF APPEALS
ON ILLINOIS LAW IS A DETERMINATION THAT MEETS THAT BURDEN.  A
REQUIREMENT OF A DEMONSTRATION OF STATE LAW, "CLEARLY AND
CONVINCINGLY," MAY WELL NECESSITATE A REVIEW OF THE CONCLUSION OF THE
COURT OF APPEALS, WHILE A REQUIREMENT OF A FINDING, AS HERE, OF THE
ULTIMATE FACT AS TO THE LAW WOULD NOT.  IF REASONABLE AVOIDABLE WE
SHOULD CERTAINLY AVOID BECOMING A COURT OF FIRST INSTANCE FOR THE
DETERMINATION OF THE VARIED RULES OF LOCAL LAW PREVAILING IN THE FORTY
EIGHT STATES.  NOR DO WE SEE ANY REASON WHY WE SHOULD PREFER THE VIEW
OF THE BOARD OF TAX APPEALS CONCERNING ILLINOIS LAW TO THAT OF THE
CIRCUIT COURT OF APPEALS WITHIN WHICH ILLINOIS IS EMBRACED. 

ONE CANNOT SAY THAT IT WOULD BE AN ARBITRARY OR UNREASONABLE OR EVEN
AN UNLIKELY HOLDING ON THE PART OF THE COURTS OF ILLINOIS TO CONCLUDE
THAT, UNDER THE TERMS OF THESE TRUSTS, EQUITY OUGHT TO AND WOULD
PREVENT THE WIFE AND BROTHER OF THE DONOR, CLAIMING AUTHORITY UNDER THE
PROVISIONS OF PARAGRAPH NINE OF THE INDENTURE, FROM VESTING THE
PROPERTY IN THEMSELVES OR IN THE DONOR OR IN OTHERS FOR THE BENEFIT OF
THEMSELVES OR THE DONOR, TO THE DETRIMENT OF THE PRESENT
BENEFICIARIES.  TO SUPPORT THIS CONSTRUCTION, THE COURT OF APPEALS
CITES FRANK V. FRANK, 305 ILL. 181, 187, 137 N.E. 151, 152.  IN THAT
CASE THERE WAS A DEED FOR A LIFE ESTATE IN REALTY WITH VESTED REMAINDER
TO OTHERS, WITH "FULL POWER AND AUTHORITY" TO THE LIFE TENANT TO SELL
THE PREMISES BY HER SOLE DEED.  THE LIFE TENANT SOLD THE FEE FOR LIFE
SUPPORT, A CONSIDERATION NECESSARILY USABLE BY THE LIFE TENANT ALONE. 
THE POWER WAS CONSTRUED AS APPLICABLE TO THE LIFE ESTATE ALONE AND ITS
USE UNAUTHORIZED FOR THE FEE.  IN ROCK ISLAND BANK V. RHOADS, 353 ILL.
131, 142, 187 N.E. 139, 141, THE SUPREME COURT OF THAT STATE CONSTRUED
THE AUTHORITY OF A LIFE TENANT TO USE AND DISPOSE OF THE PROPERTY AS
MAY "IN HER JUDGMENT BE NECESSARY FOR HER COMFORT AND SATISFACTION IN
LIFE" TO STOP SHORT OF PERMITTING HER TO ADD ANY OF THE LIFE ESTATE
PROPERTY TO BUILD UP HER OWN SEPARATE ESTATE.  FOR THE AUTHORITY OF
COURTS OF EQUITY IN ILLINOIS OVER TRUSTEES, THERE ARE CITED CASES
ESTABLISHING THEIR GENERAL POWER TO REQUIRE ACTION IN ACCORDANCE WITH
THE INTENT OF THE DONOR.  MAGUIRE V. CITY OF MACOMB, 293 ILL. 441, 453,
127 N.E. 682; JONES V. JONES, 124 ILL. 254, 262, 264, 15 N.E. 751;
WELCH V. CALDWELL, 226 ILL. 488, 495, 498, 80 N.E. 1014. 

THE COMMISSIONER CITES NO ILLINOIS CASES WHICH BRING US TO A
CONVICTION OF ERROR ON THE PART OF THE COURT OF APPEALS.  PEOPLE V.
KAISER, 306 ILL. 313, 137 N.E. 826, GOES NO FURTHER THAN TO SAY A
RESIDUARY ESTATE BEQUEATHED TO A TRUSTEE FOR GIFTS TO SUCH CHARITABLE
INSTITUTIONS OR NEEDY PERSONS AS THE TRUSTEE DEEMS DESERVING WILL BE
ENFORCED BY THE COURTS.  IT ALSO SEEMS THAT IN ILLINOIS A GENERAL POWER
OF APPOINTMENT IS EXERCISABLE IN FAVOR OF THE DONEE OR HIS CREDITORS. 
ID., 317; GILMAN V. BELL, 99 ILL. 144, 149; BOTZUM V. HAVANA NATIONAL
BANK, 367 ILL. 539, 543, 12 N.E.2D 203.  BUT EVIDENTLY THE COURT OF
APPEALS DOES NOT CONSIDER THAT THESE TRUSTEES UNDER ILLINOIS LAW HAVE
THE POWER TO VEST THIS PROPERTY IN THEMSELVES.  SUCH A RESULT FOLLOWS
FROM THEIR VIEW THAT THE PROPERTY COULD NOT BE VESTED IN THE GRANTORS. 
CONSEQUENTLY, THIS POWER OF THE TRUSTEES IS NOT A GENERAL POWER BUT A
POWER IN TRUST EXERCISABLE AS FIDUCIARIES TO CARRY OUT THE PURPOSES OF
THE TRUST.  WE THEREFORE DO NOT NEED TO DECIDE WHETHER IF THEY COULD
VEST THE PROPERTY IN THEMSELVES THEY WOULD HAVE AN INTEREST ADVERSE TO
THE GRANTOR.  WITHOUT THAT POWER THEIR INTEREST CERTAINLY IS NOT
ADVERSE.  CF. REINECKE V. SMITH, 289 U.S. 172, 174. 

THE REAL ISSUE IS WHETHER, UNDER ILLINOIS LAW, THE TRUSTEES'
AUTHORITY UNDER PARAGRAPH NINE OF THE TRUST INSTRUMENTS "TO ALTER,
CHANGE OR AMEND THIS INDENTURE AT ANY TIME AND FROM TIME TO TIME BY
CHANGING THE BENEFICIARY HEREUNDER  ...  OR IN ANY OTHER RESPECT," GOES
SO FAR AS TO PERMIT THE SUBSTITUTION OF THE DONOR FOR THE
BENEFICIARIES.  WOULD THE TRUSTEES WITH AUTHORITY TO CHANGE THE TERMS
AND "THE TIME WHEN THE TRUST FUND  ...  IS TO BE DISTRIBUTED" BE
PERMITTED TO REVOKE THE TRUST AND THUS VEST THE CORPUS IN THE DONOR. 
THESE QUESTIONS ARE ANSWERED IN THE NEGATIVE BY THE COURT OF APPEALS
AND WE ACCEPT THAT CONCLUSION.  THESE TRUSTS, THEREFORE, STAND AS
THOUGH AN ILLINOIS STATUTE OR A PROVISION OF THE INSTRUMENTS FORBADE
ASSIGNMENTS OF ANY OF THE CORPORA OR OF THE INCOME TO THE GRANTORS
EXCEPT AS MAY BE SPECIFICALLY PROVIDED BY THEIR TERMS.  THE EXCEPTION
IS OF IMPORTANCE IN EXAMINING THE TRUSTS' PROVISIONS FOR THE MINOR
CHILDREN OF DOUGLAS STUART. 

ON THE ASSUMPTION THAT THE ILLINOIS LAW FORBIDS THE VESTING OF THE
TRUST RES IN THE TAXPAYERS UNDER SEC. 166, IT WOULD ALSO BE IMPOSSIBLE
FOR THE TRUSTEES TO ACCUMULATE THE INCOME FOR OR TO DISTRIBUTE IT TO
THE GRANTOR DIRECTLY SO AS TO COME WITHIN SEC. 167.  124 F.2D 772,
778.  CONSEQUENTLY, THE CONTENTION THAT THE DONORS ARE TAXABLE, AS
DIRECT BENEFICIARIES, BECAUSE OF THE PROVISIONS OF SEC. 167 ALONE, MUST
FAIL.  COULD IT BE, HOWEVER, THAT THE DONORS WERE TAXABLE UNDER SEC.
167 BECAUSE THE TRUSTEES COULD CHANGE THE BENEFICIARIES OF THE TRUSTS
TO THE CREDITORS OF THE DONORS OR TO ANY OTHER PERSON AND THEREBY
RELIEVE THE DONOR OF A LEGAL OBLIGATION?  ASSUMING THAT SUCH A CHANGE
WOULD RESULT IN A DISTRIBUTION TO THE GRANTOR UNDER SEC. 167 AND
DOUGLAS V. WILLCUTS, 296 U.S. 1, THE RULING OF THE COURT OF APPEALS ON
ILLINOIS LAW FORBIDS SUCH A DISTRIBUTION FROM THESE TRUSTS.  A DECISION
THAT A DONOR CANNOT TAKE FROM A TRUST UNDER STATE LAW CERTAINLY
PROHIBITS A CHANGE OF THE INSTRUMENT SO AS TO RELIEVE THE DONOR OF
LEGAL OBLIGATIONS. 

THE COMMISSIONER, HOWEVER, RAISED IN THE COURT OF APPEALS AND HAS
PRESSED HERE THE LIABILITY OF THE DONORS FOR TAXATION UNDER 22(A), SEE
FOOTNOTE, P. 159, ON THE GROUND THAT THE TRUST INCOMES ARE CHARGEABLE
TO THE DONORS UNDER THE RULE OF HELVERING V. CLIFFORD, 309 U.S. 331. 
THAT IS, WHETHER AFTER THE ESTABLISHMENT OF THE TRUST THE GRANTOR MAY
STILL BE TREATED AS THE OWNER OF THE CORPUS AND THEREFORE TAXABLE ON
ITS INCOME.  IT IS OBVIOUS THAT IF EACH OF THE TRUST INCOMES IS
ATTRIBUTABLE TO THE DONORS UNDER THIS RULE, THEY BECOME A PART OF THE
PRESENT TAXPAYERS' INCOME UNDER SEC. 167(A)(1) AND (2) ALSO.  THIS
LEADS US TO CONSIDER BOTH SEC. 22(A) AND SEC. 167, AND THEIR INTERPLAY
ON ONE ANOTHER, TOGETHER. 

ENACTED ESPECIALLY TO PREVENT AVOIDANCE OF SURTAX BY THE TRUST DEVICE,
WHEN THE INCOME REALLY REMAINED IN SUBSTANCE AT THE DISPOSAL OF THE
SETTLOR.  S.REP.  NO. 665, 72D CONG., 1ST SESS., PP. 34-35.  IT IS TO
BE INTERPRETED IN THE LIGHT OF ITS PURPOSE FOR THE PROTECTION OF THE
FEDERAL REVENUE.  UNITED STATES V. HODSON, 10 WALL.  395, 406; UNITED
STATES V. PELZER, 312 U.S. 399, 403.  OF COURSE, WHERE THE SETTLOR OR
DONOR IS NOT ACTUALLY OR IN SUBSTANCE A PRESENT OR POSSIBLE BENEFICIARY
OF THE TRUST, HE ESCAPES THE SURTAX BY A GIFT IN TRUST.  REVENUE ACT OF
1934, SECS. 161 TO 168, SUPPLEMENT E, 48 STAT. 727.  CF. HELVERING V.
FULLER, 310 U.S. 69, 74.  IN THE ABSENCE OF A LEGISLATIVE RULE, WE HAVE
LEFT TO THE PROCESS OF REPEATED ADJUDICATIONS THE LINE BETWEEN "GIFTS
OF INCOME-PRODUCING PROPERTY AND GIFTS OF INCOME FROM PROPERTY OF WHICH
THE DONOR REMAINS THE OWNER, FOR ALL SUBSTANTIAL AND PRACTICAL
PURPOSES."  HARRISON V. SCHAFFNER, 312 U.S. 579, 583. 

IN THE JOHN STUART TRUSTS, THE TRUSTEES, IN THEIR DISCRETION, WERE TO
DISTRIBUTE INCOME TO THE NAMED BENEFICIARIES FOR FIFTEEN YEARS AND
THEREAFTER TO DISTRIBUTE THE ENTIRE NET INCOME.  IN THE DOUGLAS STUART
TRUSTS, THE DIRECTIONS AUTHORIZED DISCRETIONARY DISTRIBUTION TO THE
BENEFICIARIES OR ITS APPLICATION TO THEIR EDUCATION, SUPPORT AND
MAINTENANCE UNTIL THE CHILDREN REACHED THE AGE OF TWENTY-FIVE YEARS. 
UNDISTRIBUTED PORTIONS OF THE INCOME WERE TO BE ADDED TO THE CORPUS. 
PLAINLY, THESE DISTRIBUTIONS OR ACCUMULATIONS WERE TO BE USED FOR THE
ECONOMIC ADVANTAGE OF THE CHILDREN OF THE SETTLORS AND TO THE AMOUNT OF
THESE DISTRIBUTIONS AND ACCUMULATIONS WOULD SATISFY THE NORMAL DESIRE
OF A PARENT TO MAKE GIFTS TO HIS CHILDREN.  IS THIS ALONE SUFFICIENT TO
MAKE THE INCOME OF THE TRUSTS TAXABLE TO THE SETTLORS? 

DISREGARDING FOR THE MOMENT THE MINORITY OF SOME OF THE
BENEFICIARIES, WE THINK NOT.  SO BROAD A BASIS WOULD TAX TO A FATHER
THE INCOME OF A SIMPLE TRUST WITH A DISINTERESTED TRUSTEE FOR THE
BENEFIT OF HIS ADULT CHILD.  NO ACT OF CONGRESS MANIFESTS SUCH AN
INTENTION.  ECONOMIC GAIN REALIZED OR REALIZABLE BY THE TAXPAYER IS
NECESSARY TO PRODUCE A TAXABLE INCOME UNDER OUR STATUTORY SCHEME.  THAT
GAIN NEED NOT BE COLLECTED BY THE TAXPAYER.  HE MAY GIVE AWAY THE RIGHT
TO RECEIVE IT, AS WAS DONE IN HELVERING V. HORST, 311 U.S. 112,
HELVERING V. EUBANK, 311 U.S. 122, 125, AND HARRISON V. SCHAFFNER, 312
U.S. 579.  BUT THE DONOR NEVERTHELESS HAD THE "USE (REALIZATION) OF HIS
ECONOMIC GAIN."  311 U.S. AT 117.  IN NONE OF THE CASES HAD THE
TAXPAYER REALLY DISPOSED OF THE RES WHICH PRODUCED THE INCOME.  IN
CORLISS V. BOWERS, 281 U.S. 376, HE HAD DISPOSED OF THE RES BUT WITH A
POWER TO REVOKE AT ANY MOMENT.  THIS RIGHT TO REALIZE INCOME BY
REVOCATION AT THE SETTLOR'S OPTION OVERCAME THE TECHNICAL DISPOSITION. 
THE "NON-MATERIAL SATISFACTIONS" (GIFTS-CONTRIBUTIONS) OF A DONOR ARE
NOT TAXABLE AS INCOME.  HELVERING V. HORST.  SUPRA. 

THAT ECONOMIC GAIN FOR THE TAXABLE YEAR, AS DISTINGUISHED FROM THE
NON-MATERIAL SATISFACTIONS, MAY BE OBTAINED THROUGH A CONTROL OF A
TRUST SO COMPLETE THAT IT MUST BE SAID THE TAXPAYER IS THE OWNER OF ITS
INCOME.  SO IT WAS IN HELVERING V. CLIFFORD, 309 U.S. 331, 335, 336. 
CF. HELVERING V. FULLER, 310 U.S. 69, 72 NOTE 1, 76.  SECTION 22(A), WE
HAVE SAID, INDICATED THE INTENTION OF CONGRESS TO USE ITS
CONSTITUTIONAL POWERS OF INCOME TAXATION TO THEIR "FULL MEASURE." 
HELVERING V. CLIFFORD, 309 U.S. 331, 334; HELVERING V. MIDLAND LIFE
INS. CO., 300 U.S. 216, 223; DOUGLAS V. WILLCUTS, 296 U.S. 1, 9; IRWIN
V. GAVIT, 268 U.S. 161, 166.  CONTROL OF THE STOCKS OF THE COMPANY OF
WHICH THE GRANTORS WERE EXECUTIVES MAY HAVE DETERMINED THE MANNER OF
CREATING THE TRUSTS.  PARAGRAPH EIGHT PERMITS RECAPTURE OF THE STOCKS
FROM THE TRUST BY PAYMENT OF THEIR VALUE.  (SEE P. 158, ANTE.)  FAMILY
RELATIONSHIP EVIDENTLY PLAYED A PART IN THE SELECTION OF THE TRUSTEES. 
ON THE OTHER HAND, BROAD POWERS OF MANAGEMENTS IN TRUSTEES, EVEN THOUGH
WITHOUT ADVERSE INTEREST, POINT TO COMPLETE DIVESTMENT OF CONTROL, AS
DOES THE IMPOSSIBILITY OF REVERSION TO THE GRANTORS.  FN3  THE
INTERLOCKING TRUSTEES WERE NOT APPOINTED SIMULTANEOUSLY.  THE TRIERS OF
FACT HAVE MADE NO FINDING UPON THIS POINT.  CF. HELVERING V. CLIFFORD,
SUPRA, 336, 338.  WHEN THE BOARD OF TAX APPEALS DECIDED THESE CASES
UNDER SEC. 166 IT WAS NOT NECESSARY FOR IT TO REACH A CONCLUSION ON
22(A) OR ITS EFFECT UPON SEC. 167.  THAT SHOULD BE DONE IN NO. 48, THE
JOHN STUART TRUSTS. 

IN NO. 49, THE R. DOUGLAS STUART TRUSTS, THE MINORITY OF EACH OF THE
BENEFICIARIES BRINGS THE INCOME FROM THE TRUSTS UNDER THE PROVISIONS OF
167(A)(1) AND (2).  THE GRANTOR OWES TO EACH THE PARENTAL OBLIGATION OF
SUPPORT.  THE COURT OF APPEALS ASSUMED THAT ALL INCOME EXPENDED WAS
USED FOR SUCH A PURPOSE UNLESS THE TAXPAYER SHOWED TO THE CONTRARY.  SO
FAR AS THE INCOME WAS USED TO DISCHARGE THIS OBLIGATION, THE SUMS
EXPENDED WERE PROPERLY ADDED TO THE TAXPAYER'S INCOME.  FN4 

AS INDICATED IN THE CASES OF THE BOARD OF TAX APPEALS CITED IN THE
IMMEDIATELY PRECEDING NOTE, THE BOARD HAS RESTRICTED THE TAX LIABILITY
OF A GRANTOR OF A TRUST FOR THE SUPPORT AND MAINTENANCE OF AN INFANT
AND OTHER PURPOSES TO SUCH SUMS AS, ACTUALLY OR BY PRESUMPTION, HAVE
BEEN EXPENDED TO RELIEVE THE SETTLOR OF HIS OBLIGATIONS.  THE BOARD HAS
NOT TAXED THE WHOLE OF SUCH INCOME TO THE TAXPAYER MERELY BECAUSE A
PART COULD HAVE BEEN BUT WAS NOT USED FOR THE SUPPORT OF AN INFANT.  WE
TAKE A CONTRARY VIEW.  AMONG THESE INVOLVED PROBLEMS OF STATUTORY
CONSTRUCTION, WE OBSERVE THE TIME-TRIED ADMONITION OF RESTRICTING THE
SCOPE OF OUR DECISION TO THE CIRCUMSTANCES BEFORE US.  WE ARE NOT HERE
APPRAISING THE APPLICATION OF SEC. 167 TO CASES WHERE A WIFE IS THE
TRUSTEE OR BENEFICIARY OF THE FUNDS WHICH MAY BE USED FOR THE FAMILY
BENEFIT.  CF. SUHR V. COMMISSIONER, 126 F.2D 283, 285, WITH ALTMAIER V.
COMMISSIONER, 116 F.2D 162, AND FULHAM V. COMMISSIONER, 110 F.2D 916. 
WE ARE DEALING WITH A TRUST FOR MINORS WHERE THE TRUSTEES, WITHOUT ANY
INTEREST ADVERSE TO THE GRANTOR, HAVE AUTHORITY TO DEVOTE SO MUCH OF
THE NET INCOME AS "TO THEM SHALL SEEM ADVISABLE" TO THE "EDUCATION,
SUPPORT AND MAINTENANCE" OF THE MINOR.  THE APPLICABLE STATUTE SAYS,
"WHERE ANY PART OF THE INCOME ...  MAY  ...  BE DISTRIBUTED TO THE
GRANTOR  ...  THEN SUCH PART  ...  SHALL BE INCLUDED IN COMPUTING THE
NET INCOME OF THE GRANTOR."  UNDER SUCH A PROVISION THE POSSIBILITY OF
THE USE OF THE INCOME TO RELIEVE THE GRANTOR, PRO TANTO, OF HIS
PARENTAL OBLIGATION IS SUFFICIENT TO BRING THE ENTIRE INCOME OF THESE
TRUSTS FOR MINORS WITHIN THE RULE OF ATTRIBUTION LAID DOWN IN DOUGLAS
V. WILLCUTS. 

NO. 48 IS REVERSED AND REMANDED TO THE CIRCUIT COURT OF APPEALS FOR
REMAND TO THE BOARD OF TAX APPEALS. 

NO. 49 IS REVERSED AND, FOR THE REASONS HEREIN STATED, THE DECISION
OF THE BOARD OF TAX APPEALS IS AFFIRMED.  NO. 48 REVERSED.  NO. 49
REVERSED. 

FN1  THE INCORPORATION OF LOCAL LAW IN FEDERAL TAX ACTS HAS BEEN
REPEATEDLY RECOGNIZED.  CF. CROOKS V. HARRELSON, 282 U.S. 55(MISSOURI
REAL PROPERTY EXCLUDED FROM FEDERAL ESTATE TAX BECAUSE OF STATE RULE OF
LAW); POE V. SEABORN, 282 U.S. 101(COMMUNITY PROPERTY LAWS); UTERHART
V. UNITED STATES, 240 U.S. 598, 603(LOCAL LAW OF WILLS). 

FN2  305 U.S. 188, 193, 194(EXEMPTION FROM INCOME TAX OF FUNDS
RECEIVED BY AN HEIR IN COMPROMISE OF LITIGATION OVER A WILL AS AN
INHERITANCE, A RESULT CONTRARY TO THE LAW OF THE STATE OF PROBATE). 

FN3  CF. HELVERING V. CLIFFORD, SUPRA; SUHR V. COMMISSIONER, 126 F.2D
283; WHITELEY V. COMMISSIONER, 120 F.2D 782; COMMISSIONER V. BUCK, 120
F.2D 775; FULHAM V. COMMISSIONER, 110 F.2D 916. 

FN4  DOUGLAS V. WILLCUTS, 296 U.S. 1; COMMISSIONER V. GROSVENOR, 85
F.2D 2; BLACK V. COMMISSIONER, 36 B.T.A. 346; TIERNAN V. COMMISSIONER,
37 B.T.A. 1048, 1054; PYEATT V. COMMISSIONER, 39 B.T.A. 774, 780;
CHANDLER V. COMMISSIONER, 41 B.T.A. 165, 178; WOLCOTT V. COMMISSIONER,
42 B.T.A. 1151, 1157. 

SEE ALSO GENERAL COUNSEL'S MEMORANDUM 18972, 1937-2 CUM. BULL.  231,
233. 

MR. CHIEF JUSTICE STONE: 

I THINK JUDGMENT SHOULD GO FOR THE GOVERNMENT IN EACH CASE. 

ASSUMING, AS THE OPINION OF THE COURT DECLARES, THAT WE MUST LOOK TO
ILLINOIS LAW TO DETERMINE WHETHER THE TRUSTEES WERE FREE TO DISTRIBUTE
TO RESPONDENTS THE TRUST INCOME WHICH THE COMMISSIONER HAS TAXED UNDER
SEC. 167 OF THE REVENUE ACT OF 1934, STILL I THINK RESPONDENTS HAVE
FAILED TO CARRY THE BURDEN WHICH RESTS ON THEM TO SHOW THAT THE
ILLINOIS LAW PREVENTS SUCH DISTRIBUTION.  THE POWER CONFERRED ON THE
TRUSTEES TO DISPOSE OF FUTURE INCOME WAS WITHOUT RESTRICTION.  THEY
WERE IN TERMS AUTHORIZED AT ANY TIME TO ALTER THE TRUST INSTRUMENT SO
AS TO CHANGE THE BENEFICIARY, TO CHANGE THE TIME WHEN THE TRUST FUND OR
ANY PART OF IT OR THE INCOME WAS TO BE DISTRIBUTED, OR TO CHANGE IT "IN
ANY OTHER RESPECT."  ON ITS FACE EACH TRUST GAVE TO THE TRUSTEES OTHER
THAN THE SETTLOR PLENARY POWER TO BESTOW UNDISTRIBUTED INCOME ON ANY
PERSON THEY MIGHT CHOOSE AS BENEFICIARIES, INCLUDING THE SETTLOR. 

WE ARE CITED TO NO DECISION IN THE ILLINOIS COURTS WHICH EITHER HOLDS
OR SUGGESTS THAT A POWER IN TRUST SO BROADLY PHRASED MAY NOT BE
EXERCISED FOR THE BENEFIT OF ITS DONOR.  EVEN THE GENERALLY ACCEPTED
RULE THAT THE DONEE OF A POWER IN TRUST MAY NOT USE IT FOR HIS OWN
BENEFIT, WHICH ILLINOIS DOES NOT APPEAR TO FOLLOW, WOULD HARDLY SUPPORT
THE CONCLUSION THAT HE COULD NOT EXERCISE IT FOR THE BENEFIT OF THE
DONOR.  REINECKE V. SMITH, 289 U.S. 172, 176.  WE ARE WITHOUT EVEN A
SPECULATIVE BASIS IN JUDICIAL AUTHORITY OR IN REASON FOR PREDICTING
THAT THE SUPREME COURT OF ILLINOIS WOULD FORBID SUCH AN EXERCISE OF THE
POWER. 

WHEN STATE LAW HAS NOT BEEN AUTHORITATIVELY DECLARED WE PAY GREAT
DEFERENCE TO THE REASONED OPINION OF CIRCUIT COURTS OF APPEALS, WHOSE
DUTY IT IS TO ASCERTAIN FROM ALL AVAILABLE DATA WHAT THE HIGHEST COURT
OF THE STATE WILL PROBABLY HOLD THE STATE LAW TO BE.  WICHITA ROYALTY
CO. V. CITY BANK, 306 U.S. 103; WEST V. A.T. & T. CO., 311 U.S. 223. 
BUT WE HAVE NOT WHOLLY ABDICATED OUR FUNCTION OF REVIEWING SUCH
DETERMINATIONS OF STATE LAW, MERELY BECAUSE COURTS OF APPEALS HAVE MADE
THEM. 

HERE OUR TASK IS THE EASIER BECAUSE OF THE SALUTARY RULE THAT HE WHO
ASSAILS A DEFICIENCY ASSESSMENT BEFORE THE BOARD OF TAX APPEALS ASSUMES
THE BURDEN OF SHOWING, IN POINT OF LAW AS WELL AS OF FACT, THAT THE TAX
IS UNLAWFULLY ASSESSED.  HELVERING V. FITCH, 309 U.S. 149.  THE TERMS
OF THE TRUST INSTRUMENTS BRING THEM SO PLAINLY WITHIN THE PROVISIONS OF
THE TAXING STATUTE AS CONCEDEDLY TO SUBJECT RESPONDENTS TO THE TAX
UNLESS WE ARE ABLE TO CONCLUDE THAT SOME LAW OF ILLINOIS DENIES EFFECT
TO THEIR WORDS.  RESPONDENTS SUGGEST NO REASON FOR SUCH A RULE OF LAW
WHICH HAS EVER BEEN ADVANCED IN JUDICIAL OPINION, TREATISE OR
ELSEWHERE, AND THEY POINT TO NO DECISION OF THE ILLINOIS COURTS
RECOGNIZING ITS EXISTENCE.  I AM UNABLE TO CONCLUDE THAT IT DOES EXIST
AND CONSEQUENTLY THAT THE TAX WAS NOT PROPERLY LAID. 

THE BOARD OF TAX APPEALS FOUND THAT THE TRUST INSTRUMENTS MEANT WHAT
THEY SAID AND THAT IN THE FAMILY CIRCLE INVOLVED THEY WOULD BE CARRIED
OUT ACCORDING TO THEIR MEANING.  IT WAS HARDLY EXCESSIVE SKEPTICISM ON
THE BOARD'S PART TO CONCLUDE THAT ILLINOIS LAW WOULD NOT PREVENT
COMPLIANCE WITH THE EXPRESSED INTENTION.  ITS JUDGMENT OUGHT NOT
LIGHTLY TO BE DISREGARDED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS JOIN IN THIS OPINION. 
..END :

















BRAVERMAN V. UNITED STATES, 317 U.S. 49 


NO. 43.  ARGUED OCTOBER 21, 1942.  - DECIDED NOVEMBER 9, 1942.  - 125
F.2D 283, REVERSED. 


1.  A CONVICTION UPON SEVERAL COUNTS OF AN INDICTMENT, EACH CHARGING
CONSPIRACY TO VIOLATE A DIFFERENT PENAL PROVISION OF THE INTERNAL
REVENUE LAWS, WHERE THE JURY'S VERDICT IS SUPPORTED BY EVIDENCE OF BUT
A SINGLE CONSPIRACY TO COMMIT THOSE OFFENSES, WILL NOT SUSTAIN A
SENTENCE OF MORE THAN TWO YEARS' IMPRISONMENT, THE MAXIMUM PENALTY FOR
A SINGLE VIOLATION OF THE CONSPIRACY STATUTE.  P. 52. 

2.  THE LIMITATION APPLICABLE TO A PROSECUTION FOR VIOLATION OF SEC.
37 OF THE CRIMINAL CODE, WHERE THE OBJECT OF THE CONSPIRACY IS TO EVADE
OR DEFEAT THE PAYMENT OF A FEDERAL TAX, IS NOT THE THREE-YEAR PERIOD
APPLICABLE GENERALLY TO CRIMINAL OFFENSES, BUT THE SIX-YEAR PERIOD
SPECIFICALLY PRESCRIBED BY SEC. 3748(A) OF THE INTERNAL REVENUE CODE. 
P. 54. 

3.  A CONTENTION OF THE PETITIONER THAT HIS PLEA OF FORMER JEOPARDY
SHOULD HAVE BEEN SUSTAINED IS NOT PASSED UPON HERE, SINCE THE EARLIER
INDICTMENT TO WHICH HE PLEADED GUILTY, AND WHICH HE ARGUES CHARGED THE
SAME OFFENSE AS THAT OF WHICH HE WAS CONVICTED IN THIS CASE, IS NOT A
PART OF THE RECORD.  P. 55. 

BRAVERMAN V. UNITED STATES.* 

*TOGETHER WITH NO. 44, WAINER V. UNITED STATES, ALSO ON WRIT OF
CERTIORARI, 316 U.S. 653, TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 316 U.S. 653, TO REVIEW THE AFFIRMANCE OF SENTENCES UPON
CONVICTIONS OF CONSPIRACY. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS FOR DECISION ARE:  (1)  WHETHER A CONVICTION UPON THE
SEVERAL COUNTS OF AN INDICTMENT, EACH CHARGING CONSPIRACY TO VIOLATE A
DIFFERENT PROVISION OF THE INTERNAL REVENUE LAWS, WHERE THE JURY'S
VERDICT IS SUPPORTED BY EVIDENCE OF BUT A SINGLE CONSPIRACY, WILL
SUSTAIN A SENTENCE OF MORE THAN TWO YEARS' IMPRISONMENT, THE MAXIMUM
PENALTY FOR A SINGLE VIOLATION OF THE CONSPIRACY STATUTE, AND (2)
WHETHER THE SIX-YEAR PERIOD OF LIMITATION PRESCRIBED BY SEC. 3748(A) OF
THE INTERNAL REVENUE CODE IS APPLICABLE TO OFFENSES ARISING UNDER SEC.
37 OF THE CRIMINAL CODE, 18 U.S.C. 88(THE CONSPIRACY STATUTE), WHERE
THE OBJECT OF THE CONSPIRACY IS TO EVADE OR DEFEAT THE PAYMENT OF A
FEDERAL TAX. 

PETITIONERS WERE INDICTED, WITH OTHERS, ON SEVEN COUNTS, EACH
CHARGING A CONSPIRACY TO VIOLATE A SEPARATE AND DISTINCT INTERNAL
REVENUE LAW OF THE UNITED STATES.  FN1  ON THE TRIAL THERE WAS EVIDENCE
FROM WHICH THE JURY COULD HAVE FOUND THAT, FOR A CONSIDERABLE PERIOD OF
TIME, PETITIONERS, WITH OTHERS, COLLABORATED IN THE ILLICIT
MANUFACTURE, TRANSPORTATION, AND DISTRIBUTION OF DISTILLED SPIRITS,
INVOLVING THE VIOLATIONS OF STATUTE MENTIONED IN THE SEVERAL COUNTS OF
THE INDICTMENT.  AT THE CLOSE OF THE TRIAL, PETITIONERS RENEWED A
MOTION WHICH THEY HAD MADE AT ITS BEGINNING TO REQUIRE THE GOVERNMENT
TO ELECT ONE OF THE SEVEN COUNTS OF THE INDICTMENT UPON WHICH TO
PROCEED, CONTENDING THAT THE PROOF COULD NOT AND DID NOT ESTABLISH MORE
THAN ONE AGREEMENT.  IN RESPONSE THE GOVERNMENT'S ATTORNEY TOOK THE
POSITION THAT THE SEVEN COUNTS OF THE INDICTMENT CHARGED AS DISTINCT
OFFENSES THE SEVERAL ILLEGAL OBJECTS OF ONE CONTINUING CONSPIRACY, THAT
IF THE JURY FOUND SUCH A CONSPIRACY IT MIGHT FIND THE DEFENDANTS GUILTY
OF AS MANY OFFENSES AS IT HAD ILLEGAL OBJECTS, AND THAT FOR EACH SUCH
OFFENSE THE TWO-YEAR STATUTORY PENALTY COULD BE IMPOSED. 

THE TRIAL JUDGE SUBMITTED THE CASE TO THE JURY ON THAT THEORY.  THE
JURY RETURNED A GENERAL VERDICT FINDING PETITIONERS "GUILTY AS
CHARGED," AND THE COURT SENTENCED EACH TO EIGHT YEARS' IMPRISONMENT. 
ON APPEAL THE COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED, 125 F.2D
283, ON THE AUTHORITY OF ITS EARLIER DECISIONS IN FLEISHER V. UNITED
STATES, 91 F.2D 404 AND MEYERS V. UNITED STATES, 94 F.2D 433.  IT FOUND
THAT "FROM THE EVIDENCE MAY BE READILY DEDUCED A COMMON DESIGN OF
APPELLANTS AND OTHERS, FOLLOWED BY CONCERTED ACTION," TO COMMIT THE
SEVERAL UNLAWFUL ACTS SPECIFIED IN THE SEVERAL COUNTS OF THE
INDICTMENT.  IT CONCLUDED THAT THE FACT THAT THE CONSPIRACY WAS "A
GENERAL ONE TO VIOLATE ALL LAWS REPRESSIVE OF ITS CONSUMMATION DOES NOT
GAINSAY THE SEPARATE IDENTITY OF EACH OF THE SEVERAL CONSPIRACIES."  WE
GRANTED CERTIORARI, 316 U.S. 653, TO RESOLVE AN ASSERTED CONFLICT OF
DECISIONS.  FN2  THE GOVERNMENT, IN ITS ARGUMENT HERE, SUBMITTED THE
CASE FOR OUR DECISION WITH THE SUGGESTION THAT THE DECISION BELOW IS
ERRONEOUS. 

BOTH COURTS BELOW RECOGNIZED THAT A SINGLE AGREEMENT TO COMMIT AN
OFFENSE DOES NOT BECOME SEVERAL CONSPIRACIES BECAUSE IT CONTINUES OVER
A PERIOD OF TIME, SEE UNITED STATES V. KISSEL, 218 U.S. 601, 607; CF.
IN RE SNOW, 120 U.S. 274, 281-3, AND THAT THERE MAY BE SUCH A SINGLE
CONTINUING AGREEMENT TO COMMIT SEVERAL OFFENSES.  BUT THEY THOUGHT
THAT, IN THE LATTER CASE, EACH CONTEMPLATED OFFENSE RENDERS THE
AGREEMENT PUNISHABLE AS A SEPARATE CONSPIRACY. 

THE QUESTION WHETHER A SINGLE AGREEMENT TO COMMIT ACTS IN VIOLATION
OF SEVERAL PENAL STATUTES IS TO BE PUNISHED AS ONE OR SEVERAL
CONSPIRACIES IS RAISED ON THE PRESENT RECORD, NOT BY THE CONSTRUCTION
OF THE INDICTMENT, BUT BY THE GOVERNMENT'S CONCESSION AT THE TRIAL AND
HERE, REFLECTED IN THE CHARGE TO THE JURY, THAT ONLY A SINGLE AGREEMENT
TO COMMIT THE OFFENSES ALLEGED WAS PROVEN.  WHERE EACH OF THE COUNTS OF
AN INDICTMENT ALLEGES A CONSPIRACY TO VIOLATE A DIFFERENT PENAL
STATUTE, IT MAY BE PROPER TO CONCLUDE, IN THE ABSENCE OF A BILL OF
EXCEPTIONS BRINGING UP THE EVIDENCE, THAT SEVERAL CONSPIRACIES ARE
CHARGED RATHER THAN ONE, AND THAT THE CONVICTION IS FOR EACH.  SEE
FLEISHER V. UNITED STATES, SUPRA; SHULTZ V. HUDSPETH, 123 F.2D 729,
730.  BUT IT IS A DIFFERENT MATTER TO HOLD, AS THE COURT BELOW APPEARS
TO HAVE DONE IN THIS CASE AND IN MEYERS V. UNITED STATES, SUPRA, THAT
EVEN THOUGH A SINGLE AGREEMENT IS ENTERED INTO, THE CONSPIRATORS ARE
GUILTY OF AS MANY OFFENSES AS THE AGREEMENT HAS CRIMINAL OBJECTS. 

THE GIST OF THE CRIME OF CONSPIRACY AS DEFINED BY THE STATUTE IS THE
AGREEMENT OR CONFEDERATION OF THE CONSPIRATORS TO COMMIT ONE OR MORE
UNLAWFUL ACTS "WHERE ONE OR MORE OF SUCH PARTIES DO ANY ACT TO EFFECT
THE OBJECT OF THE CONSPIRACY."  THE OVERT ACT, WITHOUT PROOF OF WHICH A
CHARGE OF CONSPIRACY CANNOT BE SUBMITTED TO THE JURY, MAY BE THAT OF
ONLY A SINGLE ONE OF THE CONSPIRATORS AND NEED NOT BE ITSELF A CRIME. 
BANNON V. UNITED STATES, 156 U.S. 464, 468-9; JOPLIN MERCANTILE CO. V.
UNITED STATES, 236 U.S. 531, 535, 536; UNITED STATES V. RABINOWICH, 238
U.S. 78, 86; PIERCE V. UNITED STATES, 252 U.S. 239, 244.  BUT IT IS
UNIMPORTANT, FOR PRESENT PURPOSES, WHETHER WE REGARD THE OVERT ACT AS A
PART OF THE CRIME WHICH THE STATUTE DEFINES AND MAKES PUNISHABLE, SEE
HYDE V. UNITED STATES, 225 U.S. 347, 357-9, OR AS SOMETHING APART FROM
IT, EITHER AN INDISPENSABLE MODE OF CORROBORATING THE EXISTENCE OF THE
CONSPIRACY OR A DEVICE FOR AFFORDING A LOCUS POENITENTIAE, SEE UNITED
STATES V. BRITTON, 108 U.S. 193, 204, 205; DEALY V. UNITED STATES, 152
U.S. 539, 543, 547; BANNON V. UNITED STATES, SUPRA, 469; HYDE V. SHINE,
199 U.S. 62, 76; HYDE V. UNITED STATES, SUPRA, 388; JOPLIN MERCANTILE
CO. V. UNITED STATES, SUPRA. 

FOR WHEN A SINGLE AGREEMENT TO COMMIT ONE OR MORE SUBSTANTIVE CRIMES
IS EVIDENCED BY AN OVERT ACT, AS THE STATUTE REQUIRES, THE PRECISE
NATURE AND EXTENT OF THE CONSPIRACY MUST BE DETERMINED BY REFERENCE TO
THE AGREEMENT WHICH EMBRACES AND DEFINES ITS OBJECTS.  WHETHER THE
OBJECT OF A SINGLE AGREEMENT IS TO COMMIT ONE OR MANY CRIMES, IT IS IN
EITHER CASE THAT AGREEMENT WHICH CONSTITUTES THE CONSPIRACY WHICH THE
STATUTE PUNISHES.  THE ONE AGREEMENT CANNOT BE TAKEN TO BE SEVERAL
AGREEMENTS AND HENCE SEVERAL CONSPIRACIES BECAUSE IT ENVISAGES THE
VIOLATION OF SEVERAL STATUTES RATHER THAN ONE. 

THE ALLEGATION IN A SINGLE COUNT OF A CONSPIRACY TO COMMIT SEVERAL
CRIMES IS NOT DUPLICITOUS, FOR "THE CONSPIRACY IS THE CRIME, AND THAT
IS ONE, HOWEVER DIVERSE ITS OBJECTS."  FROHWERK V. UNITED STATES, 249
U.S. 204, 210; FORD V. UNITED STATES, 273 U.S. 593, 602; UNITED STATES
V. MANTON, 107 F.2D 834, 838.  A CONSPIRACY IS NOT THE COMMISSION OF
THE CRIME WHICH IT CONTEMPLATES, AND NEITHER VIOLATES NOR "ARISES
UNDER" THE STATUTE WHOSE VIOLATION IS ITS OBJECT.  UNITED STATES V.
RABINOWICH, SUPRA, 87-9; UNITED STATES V. MCELVAIN, 272 U.S. 633, 638;
SEE UNITED STATES V. HIRSCH, 100 U.S. 33, 34, 35.  SINCE THE SINGLE
CONTINUING AGREEMENT, WHICH IS THE CONSPIRACY HERE, THUS EMBRACES ITS
CRIMINAL OBJECTS, IT DIFFERS FROM SUCCESSIVE ACTS WHICH VIOLATE A
SINGLE PENAL STATUTE AND FROM A SINGLE ACT WHICH VIOLATES TWO
STATUTES.  SEE BLOCKBURGER V. UNITED STATES, 284 U.S. 299, 301-4;
ALBRECHT V. UNITED STATES, 273 U.S. 1, 11-12.  THE SINGLE AGREEMENT IS
THE PROHIBITED CONSPIRACY, AND HOWEVER DIVERSE ITS OBJECTS IT VIOLATES
BUT A SINGLE STATUTE, SEC. 37 OF THE CRIMINAL CODE.  FOR SUCH A
VIOLATION, ONLY THE SINGLE PENALTY PRESCRIBED BY THE STATUTE CAN BE
IMPOSED. 

PETITIONER WAINER CONTENDS THAT HIS PROSECUTION WAS BARRED BY THE
THREE-YEAR STATUTE OF LIMITATIONS, 18 U.S.C. SEC. 582, SINCE HE
WITHDREW FROM THE CONSPIRACY MORE THAN THREE, ALTHOUGH NOT MORE THAN
SIX, YEARS BEFORE HIS INDICTMENT.  THIS COURT, IN UNITED STATES V.
MCELVAIN, 272 U.S. 633, 638, AND UNITED STATES V. SCHARTON, 285 U.S.
518, HELD THAT THE THREE-YEAR STATUTE OF LIMITATIONS APPLICABLE
GENERALLY TO CRIMINAL OFFENSES BARRED PROSECUTION FOR A CONSPIRACY TO
VIOLATE THE REVENUE ACTS, SINCE IT WAS NOT WITHIN THE EXCEPTION CREATED
BY THE ACT OF NOVEMBER 17, 1921, 42 STAT. 220, NOW SEC. 3748(A)(1) OF
THE INTERNAL REVENUE CODE, WHICH PROVIDED A SIX-YEAR STATUTE OF
LIMITATIONS "FOR OFFENSES INVOLVING THE DEFRAUDING OR ATTEMPTING TO
DEFRAUD THE UNITED STATES OR ANY AGENCY THEREOF, WHETHER BY CONSPIRACY
OR NOT."  TO OVERCOME THE EFFECT OF THESE DECISIONS, THAT ACT WAS
AMENDED, REVENUE ACT OF 1932, 47 STAT. 169, 288, BY THE ADDITION OF A
SECOND EXCEPTION, WHICH PROVIDED A SIX-YEAR STATUTE OF LIMITATIONS "FOR
THE OFFENSE OF WILLFULLY ATTEMPTING IN ANY MANNER TO EVADE OR DEFEAT
ANY TAX OR THE PAYMENT THEREOF," AND BY THE ADDITION OF A NEW
PARAGRAPH, READING AS FOLLOWS: 

"FOR OFFENSES ARISING UNDER SECTION 37 OF THE CRIMINAL CODE, WHERE
THE OBJECT OF THE CONSPIRACY IS TO ATTEMPT IN ANY MANNER TO EVADE OR
DEFEAT ANY TAX OR THE PAYMENT THEREOF, THE PERIOD OF LIMITATION SHALL
ALSO BE SIX YEARS." 

TO BE WITHIN THIS LAST PARAGRAPH IT IS NOT NECESSARY THAT THE
CONSPIRACY HAVE AS ITS OBJECT THE COMMISSION OF AN OFFENSE IN WHICH
DEFRAUDING OR ATTEMPTING TO DEFRAUD THE UNITED STATES IS AN ELEMENT. 
IT IS ENOUGH THAT THE CONSPIRACY INVOLVES AN ATTEMPT TO EVADE OR DEFEAT
THE PAYMENT OF FEDERAL TAXES, WHICH WAS AMONG THE OBJECTS OF THE
CONSPIRACY OF WHICH PETITIONER WAS CONVICTED.  ENLARGEMENT, TO SIX
YEARS, OF THE TIME FOR PROSECUTION OF SUCH CONSPIRACIES WAS THE
EXPRESSED PURPOSE OF THE AMENDMENT.  SEE H.R. REP. NO. 1492, 72D CONG.,
1ST SESS., 29. 

WE DO NOT PASS UPON PETITIONER WAINER'S ARGUMENT THAT HIS PLEA OF
FORMER JEOPARDY SHOULD HAVE BEEN SUSTAINED, SINCE THE EARLIER
INDICTMENT TO WHICH HE PLEADED GUILTY AND WHICH HE INSISTS CHARGED THE
SAME OFFENSE AS THAT OF WHICH HE HAS NOW BEEN CONVICTED, IS NOT A PART
OF THE RECORD. 

THE JUDGMENT OF CONVICTION WILL BE REVERSED AND THE CAUSE REMANDED TO
THE DISTRICT COURT, WHERE THE PETITIONERS WILL BE RESENTENCED IN
CONFORMITY TO THIS OPINION.  REVERSED. 

FN1  THE SEVEN COUNTS RESPECTIVELY CHARGED THEM WITH CONSPIRACY, IN
VIOLATION OF SEC. 37 OF THE CRIMINAL CODE, UNLAWFULLY (1) TO CARRY ON
THE BUSINESS OF WHOLESALE AND RETAIL LIQUOR DEALERS WITHOUT HAVING THE
SPECIAL OCCUPATIONAL TAX STAMPS REQUIRED BY STATUTE, 26 U.S.C. SEC.
3253; (2) TO POSSESS DISTILLED SPIRITS, THE IMMEDIATE CONTAINERS OF
WHICH DID NOT HAVE STAMPS AFFIXED DENOTING THE QUANTITY OF THE
DISTILLED SPIRITS WHICH THEY CONTAINED AND EVIDENCING PAYMENT OF ALL
INTERNAL REVENUE TAXES IMPOSED ON SUCH SPIRITS, 26 U.S.C. SEC. 2803;
(3) TO TRANSPORT QUANTITIES OF DISTILLED SPIRITS, THE IMMEDIATE
CONTAINERS OF WHICH DID NOT HAVE AFFIXED THE REQUIRED STAMPS, 26 U.S.C.
SEC. 2803; (4) TO CARRY ON THE BUSINESS OF DISTILLERS WITHOUT HAVING
GIVEN BOND AS REQUIRED BY LAW, 26 U.S.C. SEC. 2833; (5) TO REMOVE,
DEPOSIT AND CONCEAL DISTILLED SPIRITS IN RESPECT WHEREOF A TAX IS
IMPOSED BY LAW, WITH INTENT TO DEFRAUD THE UNITED STATES OF SUCH TAX,
26 U.S.C. SEC. 3321; (6) TO POSSESS UNREGISTERED STILLS AND DISTILLING
APPARATUS, 26 U.S.C. SEC. 2810; AND (7) TO MAKE AND FERMENT MASH, FIT
FOR DISTILLATION, ON UNAUTHORIZED PREMISES, 26 U.S.C. SEC. 2834. 

FN2  COMPARE THE DECISION BELOW AND THOSE IN BEDDOW V. UNITED STATES,
70 F.2D 674, 676(C.C.A.8TH); YENKICHI ITO V. UNITED STATES, 64 F.2D 73,
77(C.C.A.9TH); AND OLMSTEAD V. UNITED STATES, 19 F.2D 842,
847(C.C.A.9TH), WITH THOSE IN UNITED STATES V. MAZZOCHI, 75 F.2D 497,
498(C.C.A. 2ND); SHORT V. UNITED STATES, 91 F.2D 614, 622(C.C.A.4TH);
POWE V. UNITED STATES, 11 F.2D 598, 599(C.C.A.5TH); AND UNITED STATES
V. ANDERSON, 101 F.2D 325, 333(C.C.A.7TH). 
..END :























U.S. V. CALLAHAN WALKER CO., 317 U.S. 56 


NO. 65.  ARGUED OCTOBER 23, 1942.  - DECIDED NOVEMBER 9, 1942.  - 95
CT.CLS.  314, REVERSED. 


UNDER THE GOVERNMENT CONSTRUCTION CONTRACT HERE INVOLVED, AN
"EQUITABLE ADJUSTMENT" FOR THE EXTRA WORK PERFORMED BY THE CONTRACTOR
REQUIRED MERELY THE ASCERTAINMENT OF THE COST OF DIGGING, MOVING, AND
PLACING EARTH, AND OF A REASONABLE ALLOWANCE FOR PROFIT.  THESE WERE
QUESTIONS OF FACT; AND, IF THEY WERE ERRONEOUSLY DETERMINED BY THE
CONTRACTING OFFICER, THE CONTRACTOR'S REMEDY WAS BY APPEAL TO THE HEAD
OF THE DEPARTMENT CONCERNED, AS PROVIDED BY ARTICLE 15 OF THE
CONTRACT.  P. 61. 

UNITED STATES V. CALLAHAN WALKER CONSTRUCTION CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 316 U.S. 656, TO REVIEW A JUDGMENT AGAINST THE UNITED
STATES IN A SUIT BY A CONTRACTOR UPON A CONSTRUCTION CONTRACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE MEANING AND APPLICATION OF THE TERMS OF A
STANDARD FORM OF GOVERNMENT CONSTRUCTION CONTRACT. 

THE FINDINGS OF THE COURT OF CLAIMS MAY BE SUMMARIZED.  IN 1931 THE
WAR DEPARTMENT ASKED BIDS FOR THE CONSTRUCTION OF A LEVEE ON THE EAST
SIDE OF THE MISSISSIPPI RIVER.  THE RESPONDENT BID 14.43[ A CUBIC YARD
ON A SECTION OF THE WORK INVOLVING APPROXIMATELY 3,881,600 CUBIC YARDS
OF EARTHWORK.  A PARAGRAPH OF THE SPECIFICATIONS RESERVED THE RIGHT TO
MAKE SUCH CHANGES IN THE WORK CONTEMPLATED AS MIGHT BE NECESSARY OR
EXPEDIENT TO CARRY OUT THE INTENT OF THE CONTRACT OR TO MEET
UNANTICIPATED CONDITIONS, BUT ADDED THAT NO SUCH MODIFICATION WOULD BE
THE BASIS FOR A CLAIM FOR EXTRA COMPENSATION EXCEPT AS PROVIDED IN THE
REGULAR FORM OF CONTRACT TO BE ENTERED INTO BETWEEN THE PARTIES. 

THE RESPONDENT BEGAN CONSTRUCTION AT THE SOUTH END OF THE PROJECT AND
PROCEEDED NORTHWARD.  THE LENGTH OF THE PROPOSED LEVEE WAS DIVIDED BY
STATIONS ONE HUNDRED FEET APART AND NUMBERED FROM NORTH TO SOUTH. 
SIXTY-EIGHT PER CENT. OF THE CONSTRUCTION BETWEEN STATION 5123 AND
STATION 5113 HAD BEEN COMPLETED WHEN PORTIONS OF THE LEVEE ALREADY
CONSTRUCTED SOUTH OF STATION 5123 WERE FOUND TO HAVE A TENDENCY TO
SUBSIDE.  FOR THIS REASON THE GOVERNMENT CONTRACTING OFFICER, ON
OCTOBER 7, 1932, ORDERED THE WORK STOPPED BETWEEN THE TWO STATIONS
WHILE HE SOUGHT TO DETERMINE THE CAUSE OF THE SUBSIDENCE.  HE CONCLUDED
THAT THE PLACING OF AN ENLARGED FALSE BERM, NOT CALLED FOR IN THE
ORIGINAL SPECIFICATIONS, WOULD PREVENT SUBSIDENCE IN THE SECTOR BETWEEN
THE TWO STATIONS.  ON OCTOBER 18TH HE GAVE RESPONDENT A WRITTEN ORDER
TO CONSTRUCT SUCH A BERM; THE ORDER STATED THAT RESPONDENT WOULD BE
GIVEN ONE HUNDRED PER CENT. CREDIT FOR THE EARTH PLACED SOUTH OF
STATION 5123 WHERE THE SUBSIDENCE HAD OCCURRED, AND THAT PAYMENT FOR
ADDITIONAL YARDAGE REQUIRED BY THE FALSE BERM WOULD BE MADE AT THE
CONTRACT PRICE PER CUBIC YARD.  THE ADDITIONAL YARDAGE INVOLVED WAS
ABOUT 64,000 CUBIC YARDS.  THE WORK COVERED BY THE CHANGE ORDER WAS
NECESSARY FOR THE COMPLETION OF THE PROJECT.  THE ORDER WAS ISSUED
AGAINST THE RESPONDENT'S PROTEST THAT AN EXTRA PRICE SHOULD BE ALLOWED
AS THE ADDITIONAL WORK WOULD COST THE RESPONDENT MORE THAN 14.43[ PER
CUBIC YARD, AND THAT THE ORDER WAS NOT WITHIN THE TERMS OF THE
CONTRACT.  THE RESPONDENT ASSERTED IT WOULD LATER PRESENT A CLAIM FOR
EXTRA COST OCCASIONED IT BY THE ADDITIONAL WORK. 

ARTICLE 3 OF THE STANDARD FORM OF CONSTRUCTION CONTRACT SIGNED BY THE
PARTIES PROVIDES: 

"ARTICLE 3.  CHANGES.  - THE CONTRACTING OFFICER MAY AT ANY TIME, BY
A WRITTEN ORDER, AND WITHOUT NOTICE TO THE SURETIES, MAKE CHANGES IN
THE DRAWINGS AND (OR) SPECIFICATIONS OF THIS CONTRACT AND WITHIN THE
GENERAL SCOPE THEREOF.  IF SUCH CHANGES CAUSE AN INCREASE OR DECREASE
IN THE AMOUNT DUE UNDER THIS CONTRACT, OR IN THE TIME REQUIRED FOR ITS
PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE AND THE CONTRACT
SHALL BE MODIFIED IN WRITING ACCORDINGLY.  ...  ANY CLAIM FOR
ADJUSTMENT UNDER THIS ARTICLE MUST BE ASSERTED WITHIN TEN DAYS FROM THE
DATE THE CHANGE IS ORDERED, UNLESS THE CONTRACTING OFFICER SHALL FOR
PROPER CAUSE EXTEND SUCH TIME, AND IF THE PARTIES CAN NOT AGREE UPON
THE ADJUSTMENT THE DISPUTE SHALL BE DETERMINED AS PROVIDED IN ARTICLE
15 HEREOF.  BUT NOTHING PROVIDED IN THIS ARTICLE SHALL EXCUSE THE
CONTRACTOR FROM PROCEEDING WITH THE PROSECUTION OF THE WORK SO
CHANGED." 

ARTICLE 15 PROVIDES: 

"ARTICLE 15.  DISPUTES.  - EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
IN THIS CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING
UNDER THIS CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER OR HIS
DULY AUTHORIZED REPRESENTATIVE, SUBJECT TO WRITTEN APPEAL BY THE
CONTRACTOR WITHIN THIRTY DAYS TO THE HEAD OF THE DEPARTMENT CONCERNED,
WHOSE DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO
AS TO SUCH QUESTIONS OF FACT.  IN THE MEANTIME THE CONTRACTOR SHALL
DILIGENTLY PROCEED WITH THE WORK AS DIRECTED." 

THE RESPONDENT DID NOT APPEAL FROM THE ORDER OF THE CONTRACTING
OFFICER TO THE HEAD OF THE DEPARTMENT CONCERNED.  AFTER COMPLETION OF
THE WORK, THE ACCEPTANCE OF THE GOVERNMENT'S FINAL PAYMENT WAS UNDER
PROTEST.  THEREAFTER RESPONDENT BROUGHT THIS ACTION FOR ITS ADDITIONAL
COSTS OVER THE PRICE OF 14.43[ PAID IT FOR THE EXTRA WORK, AND WAS
AWARDED A RECOVERY BY THE COURT BELOW. 

THE GOVERNMENT'S DEFENSE WAS THAT, UNDER THE TERMS OF THE CONTRACT,
THE CONTRACTING OFFICER'S DECISION AS TO WHAT WAS AN EQUITABLE
ADJUSTMENT INVOLVED ONLY A QUESTION OF FACT, AND THAT, IF THE
RESPONDENT WAS DISSATISFIED WITH THE OFFICER'S JUDGMENT, THE CONTRACT
LIMITED FURTHER RECOURSE TO AN APPEAL TO THE DEPARTMENT HEAD.  THE
COURT BELOW OVERRULED THE CONTENTION BY A VOTE OF 3 TO 2, ONE OF THE
JUDGES IN THE MAJORITY WRITING A SEPARATE OPINION.  FN1  TWO OF THE
JUDGES WERE OF OPINION THAT THE CONTRACTING OFFICER PAID NO ATTENTION
TO ART. 3 OF THE CONTRACT, MADE NO ADJUSTMENT, AND, WITHOUT CONSIDERING
THE POSSIBILITY OF EXTRA COSTS INVOLVED IN THE EXTRA WORK, SIMPLY RULED
THAT THE CONTRACT PRICE APPLIED TO IT. 

WE CANNOT ACCEPT THIS VIEW FOR SEVERAL REASONS.  IN THE FIRST PLACE,
THERE ARE NO FINDINGS TO SUPPORT IT.  THE FINDINGS SHOW THAT THE
OFFICER GAVE THE MATTER CONSIDERATION, REACHED A DECISION ABOUT IT, AND
ISSUED THE ORDER WHICH GAVE RESPONDENT A CREDIT TO WHICH IT MIGHT NOT
HAVE BEEN ENTITLED UNDER THE CONTRACT, AND FIXED THE RATE OF 14.43[ PER
CUBIC YARD FOR THE EXTRA YARDAGE REQUIRED BY THE CHANGE IN THE
SPECIFICATIONS.  THERE ARE NO FINDINGS THAT THE CONTRACTING OFFICER
FAILED TO ASCERTAIN THE PROBABLE COST OF THE NEW WORK OR THAT HE DID
NOT HONESTLY DECIDE THAT THE CONTRACT PRICE WOULD BE A FAIR ALLOWANCE
FOR THE EXTRA WORK.  IF THE CONFLICT BETWEEN THE OPINION AND THE
FINDINGS WERE SUFFICIENT TO REQUIRE A REMAND FOR CLARIFICATION, THIS IS
OBVIATED IN THE PRESENT INSTANCE BY CERTIFICATION OF THE EVIDENCE,
WHICH SUPPORTS THE FOLLOWING CONCLUSIONS.  BETWEEN OCTOBER 7TH, THE
DATE OF THE STOP ORDER, AND OCTOBER 18TH, THE DATE OF THE CHANGE ORDER,
THE RESPONDENT'S OFFICIALS WERE IN TOUCH WITH THE AREA ENGINEER AND THE
CONTRACTING OFFICER, REPRESENTED THAT THERE WAS NOT SUFFICIENT EARTH IN
THE BORROW PIT OPPOSITE THE SECTOR IN QUESTION BUT THAT THE EARTH WOULD
HAVE TO BE BROUGHT FROM OTHER POINTS, AND THAT THE CONTRACT PRICE OF
14.43[ WOULD BE INSUFFICIENT TO COMPENSATE FOR THE ADDITIONAL EXPENSE
INVOLVED.  THE GOVERNMENT'S REPRESENTATIVES DISAGREED WITH THE
CONTENTIONS.  PRIOR TO OCTOBER 18TH, HOWEVER, AFTER TALKING WITH THE
CONTRACTING OFFICER, RESPONDENT'S OFFICIALS SIGNIFIED THAT THEY WOULD
PROCEED WITH THE WORK AS ORDERED, KEEP A CAREFUL RECORD OF THE WORK
DONE AND ITS COST, AND WOULD LATER INSIST ON PAYMENT OF ANY COST
GREATER THAN THAT SPECIFIED BY THE CHANGE ORDER. 

ALL THREE JUDGES WHO WERE IN THE MAJORITY BELOW AGREED, AS AN
ALTERNATIVE GROUND OF DECISION, THAT IF WHAT THE CONTRACTING OFFICER
DID CONSTITUTED HIS NOTION OF AN EQUITABLE ADJUSTMENT, HE WAS WRONG;
AND THE RESPONDENT WAS RIGHT IN ITS CLAIM THAT THE ADJUSTMENT MADE WAS
UNFAIR AND INEQUITABLE.  TO THE GOVERNMENT'S INSISTENCE THAT THE
QUESTION WAS ONE OF FACT AND, THEREFORE, TO BE SETTLED FINALLY BY
APPEAL TO THE DEPARTMENT HEAD, IN ACCORDANCE WITH ART. 15 OF THE
CONTRACT, THE COURT BELOW REPLIED THAT THIS COURT, IN CASE V. LOS
ANGELES LUMBER CO., 308 U.S. 106, AND SECURITIES COMMISSION V. UNITED
STATES REALTY CO., 310 U.S. 434, HELD THAT WHAT CONSTITUTES AN
EQUITABLE ADJUSTMENT IS NOT A QUESTION OF FACT BUT A QUESTION OF LAW. 
IN THIS VIEW THEY HELD THAT ART. 15 WAS INAPPLICABLE; THAT THE
CONTRACTING OFFICER HAVING ERRED IN HIS CONSTRUCTION OF THE CONTRACT
HAD THEREBY BREACHED ITS TERMS, AND THE RESPONDENTS WERE ENTITLED TO
SUE FOR THE AMOUNT OF DAMAGE INCURRED BY THAT BREACH. 

THE DECISIONS CITED ARE NOT AUTHORITY FOR THE PRINCIPLE THAT WHAT IS
FAIR AND EQUITABLE IS ALWAYS A QUESTION OF LAW.  QUITE THE CONTRARY. 
IN SEC. 77B OF THE BANKRUPTCY ACT IT WAS PROVIDED THAT THE COURT SHOULD
CONFIRM A PLAN OF REORGANIZATION IF SATISFIED "IT IS FAIR AND
EQUITABLE" AND DOES NOT DISCRIMINATE UNFAIRLY IN FAVOR OF ANY CLASS OF
CREDITORS OR STOCKHOLDERS.  WE HELD THAT, IN THIS CONNECTION, THE
PHRASE "FAIR AND EQUITABLE" HAD BECOME A TERM OF ART, THAT CONGRESS
USED IT IN THE SENSE IN WHICH IT HAD BEEN USED BY THE COURTS IN
REORGANIZATION CASES, AND THAT WHETHER A PLAN MET THE TEST OF FAIRNESS
AND EQUITY LONG ESTABLISHED BY JUDICIAL DECISION WAS NOT A QUESTION TO
BE ANSWERED BY THE CREDITORS AND STOCKHOLDERS BUT BY THE COURT AS A
MATTER OF LAW. 

AN "EQUITABLE ADJUSTMENT" OF THE RESPONDENT'S ADDITIONAL PAYMENT FOR
EXTRA WORK INVOLVED MERELY THE ASCERTAINMENT OF THE COST OF DIGGING,
MOVING, AND PLACING EARTH, AND THE ADDITION TO THAT COST OF A
REASONABLE AND CUSTOMARY ALLOWANCE FOR PROFIT.  THESE WERE INQUIRIES OF
FACT.  IF THE CONTRACTING OFFICER ERRONEOUSLY ANSWERED THEM, ARTICLE 15
OF THE CONTRACT PROVIDED THE ONLY AVENUE FOR RELIEF. 

THE JUDGMENT IS REVERSED. 

FN1  95 CT. CLS. 314. 
..END :








UNITED STATES V. RICE, 317 U.S. 61 


NO. 31.  ARGUED OCTOBER 22, 1942.  - DECIDED NOVEMBER 9, 1942.  - 95
CT.CLS.  84, REVERSED. 


UNDER A GOVERNMENT CONTRACT FOR THE INSTALLATION OF EQUIPMENT IN A
BUILDING, THE CONTRACTOR AGREED TO COMPLETE THE WORK WITHIN THE TIME
ALLOWED UNDER ANOTHER CONTRACT, WITH ANOTHER CONTRACTOR, FOR THE
CONSTRUCTION OF THE BUILDING.  THE BUILDING CONTRACT PROVIDED FOR
COMPLETION WITHIN 250 DAYS AFTER NOTICE, BUT PERMITTED CHANGES IN THE
SPECIFICATIONS TO BE MADE IN THE EVENT OF DISCOVERY OF SUBSURFACE
CONDITIONS MATERIALLY DIFFERENT FROM THOSE SHOWN IN THE DRAWINGS OR
INDICATED IN THE SPECIFICATIONS.  SHORTLY AFTER NOTICE TO BEGIN HAD
BEEN GIVEN, WORK UNDER THE BUILDING CONTRACT WAS SUSPENDED PENDING THE
MAKING OF SUCH A PERMITTED CHANGE.  HELD: 

1.  A DELAY RESULTING FROM SUCH A PERMITTED CHANGE DID NOT CONSTITUTE
A BREACH BY THE GOVERNMENT OF THE EQUIPMENT CONTRACT.  P. 64. 

THE GOVERNMENT WAS NOT BOUND TO HAVE THE BUILDING READY FOR THE WORK
OF THE EQUIPMENT CONTRACTOR AT A PARTICULAR TIME. 

2.  THE EQUIPMENT CONTRACTOR WAS NOT ENTITLED TO RECOVER
CONSEQUENTIAL DAMAGES FOR DELAY THUS RESULTING; FOR SUCH A DELAY,
EXTENSION OF THE TIME FOR COMPLETION WAS AN "EQUITABLE ADJUSTMENT"
UNDER THE CONTRACT.  P. 66. 

UNITED STATES V. RICE ET AL., RECEIVERS FOR D.C. ENGINEERING COMPANY,
INC. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 316 U.S. 653, TO REVIEW A JUDGMENT AGAINST THE UNITED
STATES IN A SUIT UPON A CONTRACT.  THE ENGINEERING COMPANY, IN CHARGE
OF THE RECEIVERS, IS REFERRED TO IN THE FOLLOWING OPINION AS THE
RESPONDENT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI TO REVIEW A JUDGMENT AGAINST THE UNITED STATES
BY THE COURT OF CLAIMS, 95 CT. CLS. 84, INTERPRETING A WIDELY USED
STANDARD FORM CONSTRUCTION CONTRACT IN A MANNER ALLEGED TO BE IN
CONFLICT WITH THIS COURT'S INTERPRETATION OF AN ANALOGOUS CONTRACT IN
CROOK CO. V. UNITED STATES, 270 U.S. 4. 

RESPONDENT AGREED TO INSTALL PLUMBING, HEATING, AND ELECTRICAL
EQUIPMENT IN A VETERANS' HOME TO BE ERECTED AT TOGUS, MAINE, WHILE
ANOTHER CONTRACTOR WAS TO DO THE GENERAL WORK OF PREPARING THE SITE AND
CONSTRUCTING THE BUILDING.  RESPONDENT AGREED, FOR A STIPULATED PRICE,
TO BEGIN WORK UPON NOTICE TO PROCEED AND TO FINISH BY THE TIME THE WORK
HAD BEEN COMPLETED BY THE PRINCIPAL CONTRACTOR.  IF RESPONDENT FAILED
TO COMPLETE THE WORK WITHIN THE TIME THUS SET, THE GOVERNMENT WAS
ENTITLED TO TERMINATE THE CONTRACT OR TO REQUIRE THE PAYMENT OF
LIQUIDATED DAMAGES.  THE LENGTH OF TIME ALLOWED THE PRINCIPAL
CONTRACTOR UNDER HIS CONTRACT, SUBJECT TO CERTAIN QUALIFICATIONS
DISCUSSED BELOW, WAS 250 DAYS, AND IT WAS INTO THIS SCHEDULE THAT
RESPONDENT WAS TO COORDINATE ITS OWN ACTIVITY. 

THE GOVERNMENT GAVE NOTICE TO THE GENERAL CONTRACTOR TO BEGIN WORK ON
MAY 9, 1932.  ON MAY 12, RESPONDENT WAS NOTIFIED TO BEGIN; AND EARLY IN
JUNE ITS SUPERINTENDENT ARRIVED IN MAINE WITH TOOLS AND EQUIPMENT. 
UPON HIS ARRIVAL HE FOUND THAT THE GENERAL CONTRACTOR HAD BEEN STOPPED
BY THE GOVERNMENT BECAUSE OF THE UNEXPECTED DISCOVERY OF AN UNSUITABLE
SOIL CONDITION.  IT BECAME NECESSARY TO CHANGE THE SITE OF THE BUILDING
AND TO ALTER THE SPECIFICATIONS, AND, BECAUSE OF THE DELAY ATTENDANT
UPON PREPARING A NEW FOUNDATION, RESPONDENT WAS UNABLE TO BEGIN WORK
UNTIL OCTOBER.  AS A CONSEQUENCE, OVERHEAD EXPENSES ACCUMULATED DURING
THE PERIOD OF DELAY, AND MUCH OF THE WORK WHICH RESPONDENT'S EMPLOYEES
OTHERWISE WOULD HAVE DONE EITHER DURING WARM WEATHER OR AFTER THE
BUILDING WAS ENCLOSED, WAS DONE OUTSIDE IN COLD WEATHER. 

BECAUSE OF THE DELAY AND PURSUANT TO THE ADJUSTMENT CLAUSES OF THE
CONTRACT, THE GOVERNMENT EXTENDED THE TIME OF PERFORMANCE BY
RESPONDENT; AND, BECAUSE OF STRUCTURAL CHANGES, IT RE-ADJUSTED THE
AMOUNT DUE.  IT INCREASED PAYMENTS TO THE PRINCIPAL CONTRACTOR, REDUCED
THE PAYMENT TO RESPONDENT BY ABOUT $1,000 BECAUSE OF CONSTRUCTION
ECONOMIES UNDER THE NEW PLANS, AND WAIVED ANY CLAIM TO LIQUIDATED
DAMAGES FOR THE PERIOD OF THE EXTENSION.  THE HOSPITAL WAS COMPLETED
SOME MONTHS AFTER IT WOULD HAVE BEEN FINISHED HAD IT NOT BEEN FOR THE
CHANGE OF PLAN. 

THE RESPONDENT WAS PAID THE FULL AMOUNT AGREED ON FOR THE WORK IT
DID.  IT THEN SUED FOR ABOUT $26,000 FOR DAMAGES ALLEGED TO HAVE BEEN
SUFFERED DUE TO DELAY FOR WHICH THE GOVERNMENT WAS RESPONSIBLE.  THE
COURT OF CLAIMS HELD THE GOVERNMENT WAS LIABLE FOR DAMAGES RESULTING
SOLELY FROM DELAY, BUT FOUND THAT $13,600 OF THE ALLEGED LOSS WAS DUE
TO RESPONDENT'S OWN FAULTY ESTIMATE AND FINANCIAL CONDITIONS, AND THAT
$3,000 OF IT WAS CAUSED BY RESPONDENT'S AND THE PRINCIPAL CONTRACTOR'S
DELAYS.  RESPONDENT SOUGHT NO REVIEW OF DENIAL OF THIS PART OF ITS
CLAIM.  HOWEVER, THE COURT CONCLUDED THAT THE BALANCE CLAIMED, $9,349,
AROSE FROM OVERHEAD COSTS DURING THE SUMMER OF 1932 WHEN THE NEW
FOUNDATION WAS BEING PREPARED, AND FROM A DECREASE IN LABOR
EFFECTIVENESS RESULTING BECAUSE MUCH OF THE WORK HAD TO BE DONE OUTSIDE
IN COLD WEATHER.  THE JUDGMENT RENDERED UNDER THIS CONCLUSION IS WHAT
WE HAVE BEFORE US. 

THE CHIEF ISSUES OF THE CASE ARE WHETHER THE DELAY IN COMMENCING THE
CONSTRUCTION WAS A BREACH OF CONTRACT BY THE GOVERNMENT; WHETHER,
REGARDLESS OF THE ANSWER TO THAT QUESTION, RESPONDENT WAS ENTITLED TO
AN EQUITABLE ADJUSTMENT FOR DAMAGES RESULTING FROM THE DELAY, IN
ADDITION TO THE EXTENSION OF TIME ALREADY GRANTED; AND WHETHER
RESPONDENT IS BARRED FROM ANY RECOVERY BECAUSE IT FAILED TO APPEAL
CERTAIN DECISIONS AFFECTING ITS CONTRACT TO THE CHIEF OFFICER OF THE
DEPARTMENT.  UNDER THE VIEW WE TAKE OF THE FIRST TWO OF THESE
QUESTIONS, IT IS UNNECESSARY TO ANSWER THE THIRD. 

I. THE GOVERNMENT CONTENDS, AS IT DID IN THE CROOK CASE, SUPRA, THAT
THE CHANGE IN SPECIFICATIONS RESULTING IN DELAY WAS NOT A BREACH OF THE
CONTRACT, BUT IN ACCORDANCE WITH ITS TERMS; THAT THE EXTENT OF ITS
OBLIGATION FOR PERMITTED CHANGES WAS FIXED BY THE CONTRACT; AND THAT
FOR DELAY THE GOVERNMENT WAS REQUIRED TO DO NO MORE THAN GRANT AN
EXTENSION OF TIME.  PUT ANOTHER WAY, THE GOVERNMENT CONCEDES THAT, IF
AN ALTERATION OF PLAN REQUIRED RESPONDENT TO USE AN EXTRA 50 TONS OF
STEEL, THE GOVERNMENT WOULD BE LIABLE FOR THE VALUE OF THE STEEL AND
THE COST OF INSTALLATION; BUT IT ARGUES THAT UNDER THE TERMS OF THIS
CONTRACT AN EXTENSION OF TIME SHOULD BE ACCEPTED AS FULL EQUITABLE
ADJUSTMENT FOR ALL DAMAGES CAUSED BY THE FACT THAT THE WORK WAS DONE AT
THE LATER PERIOD MADE NECESSARY BY THE PERMITTED CHANGE.  ESSENTIALLY
IT REPEATS THE DOCTRINE OF CHOUTEAU V. UNITED STATES, 95 U.S. 61, 68:
"FOR THE REASONABLE COST AND EXPENSES OF THE CHANGES MADE IN THE
CONSTRUCTION, PAYMENT WAS TO BE MADE; BUT FOR ANY INCREASE IN THE COST
OF THE WORK NOT CHANGED, NO PROVISION WAS MADE." 

WE AGREE WITH THIS VIEW.  WE DO NOT THINK THE TERMS OF THE CONTRACT
BOUND THE GOVERNMENT TO HAVE THE CONTEMPLATED STRUCTURE READY FOR
RESPONDENT AT A FIXED TIME.  PROVISIONS OF THE CONTRACT SHOWED THAT THE
DATES WERE TENTATIVE AND SUBJECT TO MODIFICATION BY THE GOVERNMENT. 
THE CONTRACTOR WAS ABSOLVED FROM PAYMENT OF PRESCRIBED LIQUIDATED
DAMAGES FOR DELAY, IF IT RESULTED FROM A NUMBER OF CAUSES, INCLUDING
"ACTS OF GOVERNMENT" AND "UNUSUALLY SEVERE WEATHER."  THE GOVERNMENT
RESERVED THE RIGHT TO MAKE CHANGES WHICH MIGHT INTERRUPT THE WORK, AND
EVEN TO SUSPEND ANY PORTION OF THE CONSTRUCTION IF IT WERE DEEMED
NECESSARY.  RESPONDENT WAS REQUIRED TO ADJUST ITS WORK TO THAT OF THE
GENERAL CONTRACTOR, SO THAT DELAY BY THE GENERAL CONTRACTOR WOULD
NECESSARILY DELAY RESPONDENT'S WORK.  UNDER THESE CIRCUMSTANCES IT
SEEMS APPROPRIATE TO REPEAT WHAT WAS SAID IN THE CROOK CASE, THAT "WHEN
SUCH A SITUATION WAS DISPLAYED BY THE CONTRACT IT WAS NOT TO BE
EXPECTED THAT THE GOVERNMENT SHOULD BIND ITSELF TO A FIXED TIME FOR THE
WORK TO COME TO AN END, AND THERE IS NOT A WORD IN THE INSTRUMENT BY
WHICH IT DID SO, UNLESS AN UNDERTAKING CONTRARY TO WHAT SEEMS TO US THE
IMPLICATION IS IMPLIED."  CROOK CO. V. UNITED STATES, SUPRA, 6. 
DECISIONS OF THIS COURT PRIOR TO THE CROOK CASE ALSO MAKE IT CLEAR THAT
CONTRACTS SUCH AS THIS DO NOT BIND THE GOVERNMENT TO HAVE THE PROPERTY
READY FOR WORK BY A CONTRACTOR AT A PARTICULAR TIME.  WELLS BROS. CO.
V. UNITED STATES, 254 U.S. 83, 86; CHOUTEAU V. UNITED STATES, SUPRA;
CF. UNITED STATES V. SMITH, 94 U.S. 214, 217. 

AS POINTED OUT, THE DELAY HERE RESULTED FROM A CHANGE IN
SPECIFICATIONS MADE NECESSARY BY DISCOVERY OF SOIL UNSUITABLE FOR
FOUNDATION PURPOSES.  THE GOVERNMENT HAVING RESERVED THE RIGHT TO MAKE
SUCH CHANGES UPON DISCOVERY OF "SUBSURFACE AND (OR) LATENT CONDITIONS
AT THE SITE MATERIALLY DIFFERING FROM THOSE SHOWN ON THE DRAWINGS OR
INDICATED IN THE SPECIFICATIONS," DELAYS INCIDENT TO THE PERMITTED
CHANGES CANNOT AMOUNT TO A BREACH OF CONTRACT.  IF THERE ARE RIGHTS TO
RECOVER DAMAGES WHERE THE GOVERNMENT EXERCISES ITS RESERVED POWER TO
DELAY, THEY MUST BE FOUND IN THE PARTICULAR PROVISIONS FIXING THE
RIGHTS OF THE PARTIES. 

II.  TWO OF THE JUDGES OF THE COURT OF CLAIMS THOUGHT CONSEQUENTIAL
DAMAGES RESULTING FROM DELAY WERE RECOVERABLE UNDER PARAGRAPHS 4 AND 3
OF THE CONTRACT.  THESE PARAGRAPHS  FN1  DEAL WITH CLOSELY RELATED
PROBLEMS.  ARTICLE 3, ENTITLED "CHANGES," GOVERNS THE PROCEDURE UNDER
WHICH THE GOVERNMENT MAY ALTER THE SPECIFICATIONS OF THE CONTRACT FOR
GENERAL CAUSES.  ARTICLE 4, ENTITLED "CHANGED CONDITIONS," GOVERNS THE
PROCEDURE UNDER WHICH THE GOVERNMENT MAY ALTER THE CONTRACT TO MEET
UNANTICIPATED PHYSICAL CONDITIONS.  ARTICLE 4 INCORPORATES BY REFERENCE
THE SAME MACHINERY OF ADJUSTMENT AS THAT SPECIFIED IN ARTICLE 3.  BOTH
CLAUSES ESSENTIALLY PROVIDE THAT, IF CHANGES ARE MADE AFFECTING AN
INCREASE OR DECREASE OF COST OR AFFECTING THE LENGTH OF TIME OF
PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE. 

CLEARLY, QUESTIONS OF INTERPRETATION IN CLAUSES SO SIMILAR SHOULD, IF
POSSIBLE, BE RESOLVED IN THE SAME FASHION IN EACH OF THEM.  CLAUSE 4
WAS ADDED TO THE STANDARD FORM CONTRACT SINCE CLAUSE 3, AND WE
THEREFORE TURN FIRST TO DECISIONS INTERPRETING THE LATTER CLAUSE.  THE
COURT OF CLAIMS, RELYING ON PRINCIPLES ANNOUNCED IN THE CHOUTEAU,
WELLS, AND CROOK CASES, SUPRA, HAS UNIFORMLY HELD THAT THE "INCREASE OR
DECREASE OF COST" LANGUAGE IN ART. 3, AND IN SIMILAR CLAUSES, IS NOT
BROAD ENOUGH TO INCLUDE DAMAGES FOR DELAY; THAT "IT WAS NEVER
CONTEMPLATED  ...  THAT DELAYS INCIDENT TO CHANGES WOULD SUBJECT THE
GOVERNMENT TO DAMAGE BEYOND THAT INVOLVED IN THE CHANGES THEMSELVES." 
MORAN BROS. CO. V. UNITED STATES, 61 CT. CLS. 73, 102; AND FOR THE SAME
VIEW, SEE MCCORD V. UNITED STATES, 9 CT. CLS. 155, 169; SWIFT V. UNITED
STATES, 14 CT. CLS. 208, 231; GRIFFITHS V. UNITED STATES, 74 CT. CLS.
245, 255. 

WERE THIS A MATTER OF FIRST IMPRESSION, WE WOULD AGAIN COME TO THE
SAME CONCLUSION REGARDING THIS CLAUSE.  IT SEEMS WHOLLY REASONABLE THAT
"AN INCREASE OR DECREASE IN THE AMOUNT DUE" SHOULD BE MET WITH AN
ALTERATION OF PRICE, AND THAT "AN INCREASE OR DECREASE  ...  IN THE
TIME REQUIRED" SHOULD BE MET WITH ALTERATION OF THE TIME ALLOWED; FOR
"INCREASE OR DECREASE OF COST" PLAINLY APPLIES TO THE CHANGES IN COST
DUE TO THE STRUCTURAL CHANGES REQUIRED BY THE ALTERED SPECIFICATION AND
NOT TO CONSEQUENTIAL DAMAGES WHICH MIGHT FLOW FROM DELAY TAKEN CARE OF
IN THE "DIFFERENCE IN TIME" PROVISION.  THE PROVISION AS TO TIME SERVES
THE LARGE PURPOSE OF REMOVING FROM PERSONS IN THE POSITION OF
RESPONDENT LIABILITY FOR "DELAY" BEYOND THE STIPULATED DATE FOR WHICH
THEY MIGHT OTHERWISE HAVE THEIR CONTRACT TERMINATED OR MIGHT BE
REQUIRED TO PAY LIQUIDATED DAMAGES WITHOUT FAULT. 

DESPITE THE SIMILARITY OF THE TWO CLAUSES, A MINORITY OF THE COURT
BELOW HAS IN THIS INSTANCE CONCLUDED THAT THEY MAY BE DISTINGUISHED AND
THAT RESPONDENT IS ENTITLED TO DAMAGES FOR DELAY UNDER CLAUSE 4.  IN
SUPPORTING THIS VIEW, RESPONDENTS HERE RELY PRIMARILY ON RUST
ENGINEERING CO. V. UNITED STATES, 86 CT. CLS. 461, 475, WHERE THE COURT
BELOW DISTINGUISHES THE TWO CLAUSES BY SAYING THAT THE TYPE OF CHANGE
CONTEMPLATED IN CLAUSE 4 IS MORE BASIC THAN THAT UNDER CLAUSE 3, AND
THAT THEREFORE DIFFERENT LIABILITIES SHOULD ATTACH: 

"THE CHANGES MADE NECESSARY BY REASON OF THE CONDITIONS ENCOUNTERED
IN EXCAVATING FOR THE FOUNDATION OF THE BUILDING WERE NOT REASONABLE
CHANGES WITHIN THE SCOPE OF THE DRAWINGS AND SPECIFICATIONS AS
CONTEMPLATED IN ART. 3 OF THE CONTRACT, BUT REPRESENTED IMPORTANT
CHANGES BASED UPON CHANGED CONDITIONS WHICH WERE UNKNOWN AND MATERIALLY
DIFFERENT FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN THE
SPECIFICATIONS.  SUCH CHANGES WERE, THEREFORE, CLEARLY NOT WITHIN THE
CONTEMPLATION OF EITHER PARTY TO THE CONTRACT AT THE TIME IT WAS MADE. 
...  " 

AND SEE SOBEL V. UNITED STATES, 88 CT. CLS. 149, 165. 

NO SUCH STRAINED DISTINCTION BETWEEN PARAGRAPHS 3 AND 4 CAN STAND. 
IT DOES NOT HELP TO ARGUE THAT THE CHANGES MADE UNDER CLAUSE 4 "ARE NOT
WITHIN THE CONTEMPLATION OF EITHER PARTY," SINCE THE CHANGES MADE UNDER
CLAUSE 3 ARE ALSO NOT CONTEMPLATED IN ADVANCE.  BOTH CLAUSES DEAL WITH
CHANGES MADE NECESSARY BY NEW PLANS OR NEW DISCOVERIES MADE SUBSEQUENT
TO THE SIGNING OF THE CONTRACT.  FOR DELAYS INCIDENT TO SUCH
UNANTICIPATED CHANGES, THE CONTRACTOR WAS, UNDER EITHER SECTION, TO BE
GRANTED A "COMPENSATING EXTENSION OF TIME."  WELLS BROS. CO. V. UNITED
STATES, SUPRA, 86. 

IN THIS CASE THERE WERE TWO CONSEQUENCES OF THE DISCOVERY THAT THE
HOME COULD NOT BE BUILT AS ORIGINALLY PLANNED.  ONE WAS AN ALTERATION
OF SPECIFICATIONS, WHICH RESULTED IN A SLIGHT CUT IN RESPONDENT'S
OUTLAY AND IN ITS COMPENSATION.  THE OTHER WAS THE DELAY ITSELF, AND
FOR THIS THE TIME NECESSARY TO PERFORM THE CONTRACT WAS EQUITABLY
ADJUSTED BY EXTENSION, THEREBY RELIEVING RESPONDENT OF LIQUIDATED
DAMAGES WHICH COULD OTHERWISE HAVE BEEN IMPOSED.  UNDER THE TERMS OF
THE CONTRACT, IT IS ENTITLED TO NO MORE.  REVERSED. 

FN1  "ARTICLE 3.  CHANGES.  - THE CONTRACTING OFFICER MAY AT ANY
TIME, BY A WRITTEN ORDER, AND WITHOUT NOTICE TO THE SURETIES, MAKE
CHANGES IN THE DRAWINGS AND (OR) SPECIFICATIONS OF THIS CONTRACT AND
WITHIN THE GENERAL SCOPE THEREOF.  IF SUCH CHANGES CAUSE AN INCREASE OR
DECREASE IN THE AMOUNT DUE UNDER THIS CONTRACT, OR IN THE TIME REQUIRED
FOR ITS PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE AND THE
CONTRACT SHALL BE MODIFIED IN WRITING ACCORDINGLY.  ... 

"ARTICLE 4.  CHANGED CONDITIONS.  - SHOULD THE CONTRACTOR ENCOUNTER,
OR THE GOVERNMENT DISCOVER, DURING THE PROGRESS OF THE WORK, SUBSURFACE
AND (OR) LATENT CONDITIONS AT THE SITE MATERIALLY DIFFERING FROM THOSE
SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS, THE ATTENTION
OF THE CONTRACTING OFFICER SHALL BE CALLED IMMEDIATELY TO SUCH
CONDITIONS BEFORE THEY ARE DISTURBED.  THE CONTRACTING OFFICER SHALL
THEREUPON PROMPTLY INVESTIGATE THE CONDITIONS, AND IF HE FINDS THAT
THEY MATERIALLY DIFFER FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN
THE SPECIFICATIONS, HE SHALL AT ONCE, WITH THE WRITTEN APPROVAL OF THE
HEAD OF THE DEPARTMENT OR HIS REPRESENTATIVE, MAKE SUCH CHANGES IN THE
DRAWINGS AND (OR) SPECIFICATIONS AS HE MAY FIND NECESSARY, AND ANY
INCREASE OR DECREASE OF COST AND (OR) DIFFERENCE IN TIME RESULTING FROM
SUCH CHANGES SHALL BE ADJUSTED AS PROVIDED IN ARTICLE 3 OF THIS
CONTRACT." 
..END :









EX PARTE KAWATO, 317 U.S. 69 


NO. 10, ORIGINAL.  ARGUED OCTOBER 12, 1942.  - DECIDED NOVEMBER 9,
1942.  - WRIT ISSUED. 


1.  IN AN ORIGINAL PROCEEDING IN THIS COURT UPON A PETITION FOR A WRIT
OF MANDAMUS TO COMPEL THE DISTRICT COURT TO PROCEED WITH THE TRIAL OF A
SUIT IN ADMIRALTY, A CONTENTION THAT THE WRIT SHOULD BE DENIED BECAUSE
THE DISTRICT COURT, ALTHOUGH IT HAD ORDERED THE ABATEMENT OF THE SUIT
FOR THE DURATION OF THE WAR SOLELY ON THE GROUND OF THE LIBELANT'S
STATUS AS AN ALIEN ENEMY, COULD HAVE DISMISSED THE LIBEL ON OTHER
GROUNDS, PARTICULARLY FOR CLAIMED DEFECTS IN THE ALLEGATIONS OF THE
LIBEL, IS IRRELEVANT; SINCE, IF THE SUIT WAS ERRONEOUSLY ABATED ON THE
GROUND ASSIGNED, THE LIBELANT IS ENTITLED TO HAVE THE DISTRICT COURT
PROCEED WITH THE ACTION AND PASS UPON THE SUFFICIENCY OF HIS
ALLEGATIONS IN AN ORDERLY WAY.  P. 71. 

2.  MANDAMUS IS THE APPROPRIATE REMEDY WHERE THE DISTRICT COURT HAS
ERRONEOUSLY ORDERED THE ABATEMENT, FOR THE DURATION OF THE WAR, OF A
SUIT IN ADMIRALTY BY A RESIDENT ALIEN ENEMY.  P. 71. 

3.  THE ANCIENT RULE OF THE COMMON LAW BARRING SUITS BY RESIDENT
ALIEN ENEMIES HAS SURVIVED ONLY SO FAR AS NECESSARY TO PREVENT USE OF
THE COURTS TO ACCOMPLISH A PURPOSE WHICH MIGHT HAMPER THE WAR EFFORT OR
GIVE AID TO THE ENEMY.  P. 72. 

4.  THE PRESIDENT NOT HAVING MADE, UNDER THE TRADING WITH THE ENEMY
ACT, ANY DECLARATION AS TO "ALIEN ENEMIES," A RESIDENT ALIEN ENEMY -
CLAIMING WAGES AND AN ALLOWANCE FOR MAINTENANCE AND CURE, ARISING OUT
OF HIS LAWFUL EMPLOYMENT AS A SEAMAN - IS NOT BARRED FROM THE COURTS BY
SEC. 7 OF THAT ACT.  P. 75. 

THIS CONCLUSION IS IN ACCORD WITH THE LEGISLATIVE AND ADMINISTRATIVE
POLICY.  P. 77. 

5.  THE TRADING WITH THE ENEMY ACT WAS NOT INTENDED, WITHOUT
PRESIDENTIAL PROCLAMATION, TO AFFECT RESIDENT ALIENS.  P. 76. 

EX PARTE KUMEZO KAWATO. 

ON PETITION FOR WRIT OF MANDAMUS. 

ON PETITION FOR A WRIT OF MANDAMUS (LEAVE TO FILE GRANTED, 316 U.S.
650) TO COMPEL THE DISTRICT COURT TO PROCEED WITH THE TRIAL OF A SUIT
IN ADMIRALTY BY A RESIDENT ALIEN ENEMY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, BORN IN JAPAN, BECAME A RESIDENT OF THE UNITED STATES
IN 1905.  APRIL 15, 1941, HE FILED A LIBEL IN ADMIRALTY AGAINST THE
VESSEL RALLY IN THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CALIFORNIA.  HE CLAIMED WAGES WERE DUE HIM FOR SERVICES AS A SEAMAN AND
FISHERMAN ON THE RALLY, AND SOUGHT AN ALLOWANCE FOR MAINTENANCE AND
CURE ON ALLEGATIONS THAT HE HAD SUSTAINED SEVERE INJURIES WHILE ENGAGED
IN THE PERFORMANCE OF HIS DUTIES.  CLAIMANTS OF THE VESSEL APPEARED AND
FILED AN ANSWER ON GROUNDS NOT HERE MATERIAL, BUT LATER, ON JANUARY 20,
1942, MOVED TO ABATE THE ACTION ON THE GROUND THAT PETITIONER, BY
REASON OF THE STATE OF WAR THEN EXISTING BETWEEN JAPAN AND THE UNITED
STATES, HAD BECOME AN ENEMY ALIEN AND THEREFORE HAD NO "RIGHT TO
PROSECUTE ANY ACTION IN ANY COURT OF THE UNITED STATES DURING THE
PENDENCY OF SAID WAR."  THE DISTRICT JUDGE GRANTED THE MOTION. 
PETITIONER SOUGHT MANDAMUS IN THE CIRCUIT COURT OF APPEALS FOR THE
NINTH CIRCUIT TO COMPEL THE DISTRICT COURT TO VACATE ITS JUDGMENT AND
PROCEED TO TRIAL OF HIS ACTION, BUT HIS MOTION FOR LEAVE TO FILE WAS
DENIED WITHOUT OPINION.  WE GRANTED LEAVE TO FILE IN THIS COURT, 316
U.S. 650, AND THE CAUSE WAS SUBMITTED ON ANSWER, BRIEFS AND ORAL
ARGUMENT. 

ALTHOUGH THE COURT'S ORDER OF ABATEMENT FOR THE DURATION OF THE WAR
RESTED SOLELY ON THE GROUND OF PETITIONER'S STATUS AS AN ALIEN ENEMY,
IT HAS BEEN ARGUED HERE THAT THE WRIT SHOULD BE DENIED BECAUSE THE
COURT COULD HAVE DISMISSED THE BILL ON OTHER GROUNDS, PARTICULARLY
CLAIMED DEFECTS IN THE ALLEGATIONS OF THE LIBEL.  THESE CONTENTIONS ARE
IRRELEVANT HERE.  UNLESS THE ACTION WAS PROPERLY ABATED FOR THE REASONS
SET OUT IN THE MOTION AND THE COURT'S ORDER, THE PETITIONER IS ENTITLED
TO HAVE THE DISTRICT COURT PROCEED WITH HIS ACTION AND PASS UPON THE
SUFFICIENCY OF HIS ALLEGATIONS.  THIS IS AN ESSENTIAL STEP IN AN
ORDERLY TRIAL LEADING TO A FINAL JUDGMENT FROM WHICH AN APPEAL WILL LIE
TO CORRECT ERRORS.  IF THE COURT'S ORDER OF ABATEMENT WAS ERRONEOUS,
MANDAMUS IS THE APPROPRIATE REMEDY.  28 U.S.C. 377; MCCLELLAN V.
CARLAND, 217 U.S. 268, 279-282; EX PARTE METROPOLITAN WATER CO., 220
U.S. 539, 546. 

"ALIEN ENEMY" AS APPLIED TO PETITIONER IS AT PRESENT BUT THE LEGAL
DEFINITION OF HIS STATUS BECAUSE HE WAS BORN IN JAPAN, WITH WHICH WE
ARE AT WAR.  NOTHING IN THIS RECORD INDICATES, AND WE CANNOT ASSUME,
THAT HE CAME TO AMERICA FOR ANY PURPOSE DIFFERENT FROM THAT WHICH
PROMPTED MILLIONS OF OTHERS TO SEEK OUR SHORES - A CHANCE TO MAKE HIS
HOME AND WORK IN A FREE COUNTRY, GOVERNED BY JUST LAWS, WHICH PROMISE
EQUAL PROTECTION TO ALL WHO ABIDE BY THEM.  HIS SUIT INVOKES THE
PROTECTION OF THOSE LAWS THROUGH OUR COURTS BOTH TO OBTAIN PAYMENT OF
WAGES ALLEGED TO HAVE BEEN PROMISED HIM BY AMERICAN CITIZENS FOR LAWFUL
WORK AND REIMBURSEMENT ON ACCOUNT OF DAMAGES SUFFERED WHILE WORKING FOR
THOSE CITIZENS. 

PETITIONER CONTENDS THAT HE HAS THE RIGHT UNDER THE COMMON LAW AND
TREATIES TO PROCEED WITH HIS ACTION, AND THAT THIS RIGHT IS NOT LIMITED
BY THE STATUTES.  IN OUR VIEW THE POSSIBILITY OF TREATY RIGHTS, WHICH
HAS NOT BEEN ARGUED EXTENSIVELY, NEED NOT BE CONSIDERED.  APPLICABLE
TREATIES ARE AMBIGUOUS AND SHOULD NOT BE INTERPRETED WITHOUT MORE CARE
THAN IS NECESSARY IN THIS CASE.  FN1 

THERE DOUBTLESS WAS A TIME WHEN THE COMMON LAW OF ENGLAND WOULD HAVE
SUPPORTED DISMISSAL OF PETITIONER'S ACTION, BUT THAT TIME HAS LONG
SINCE PASSED.  A NUMBER OF EARLY ENGLISH DECISIONS, BASED ON A GROUP
CONCEPT WHICH MADE LITTLE DIFFERENCE BETWEEN FRIENDS AND ENEMIES BARRED
ALL ALIENS FROM THE COURTS.  THIS RULE WAS GRADUALLY RELAXED AS TO
FRIENDLY ALIENS  FN2  UNTIL FINALLY, IN WELLS V. WILLIAMS, 1 LD. RAYM. 
282(1698), THE COURT PUT THE NECESSITIES OF TRADE AHEAD OF WHATEVER
ADVANTAGES HAD BEEN IMAGINED TO EXIST IN THE OLD RULE, AND HELD THAT
ENEMY ALIENS IN ENGLAND UNDER LICENSE FROM THE CROWN MIGHT PROCEED IN
THE COURTS.  AS APPLIED EVER SINCE, ALIEN ENEMIES RESIDING IN ENGLAND
HAVE BEEN PERMITTED TO MAINTAIN ACTIONS, WHILE THOSE IN THE LAND OF THE
ENEMY WERE NOT; AND THIS MODERN, HUMANE PRINCIPLE HAS BEEN APPLIED EVEN
WHEN THE ALIEN WAS INTERNED, AS IS PETITIONER HERE.  FN3  SCHAFFENIUS
V. GOLDBERG, (1916) 1 K.B. 284. 

THE ORIGINAL ENGLISH COMMON LAW RULE, LONG AGO ABANDONED THERE, WAS,
FROM THE BEGINNING, OBJECTIONABLE HERE.  THE POLICY OF SEVERITY TOWARD
ALIEN ENEMIES WAS CLEARLY IMPOSSIBLE FOR A COUNTRY WHOSE LIFEBLOOD CAME
FROM AN IMMIGRANT STREAM.  IN THE WAR OF 1812, FOR EXAMPLE, MANY
PERSONS BORN IN ENGLAND FOUGHT ON THE AMERICAN SIDE.  FN4  HARSHNESS
TOWARD IMMIGRANTS WAS INCONSISTENT WITH THAT NATIONAL KNOWLEDGE,
PRESENT THEN AS NOW, OF THE CONTRIBUTIONS MADE IN PEACE AND WAR BY THE
MILLIONS OF IMMIGRANTS WHO HAVE LEARNED TO LOVE THE COUNTRY OF THEIR
ADOPTION MORE THAN THE COUNTRY OF THEIR BIRTH.  HENCE IN 1813 CHIEF
JUSTICE KENT, IN CLARKE V. MOREY, 10 JOHNS.  69, 72, SET THE LEGAL
PATTERN WHICH, WITH SPORADIC EXCEPTIONS, HAS SINCE BEEN FOLLOWED.  FN5
THE CORE OF THAT DECISION HE PUT IN THESE WORDS:  "A LAWFUL RESIDENCE
IMPLIES PROTECTION, AND A CAPACITY TO SUE AND BE SUED.  A CONTRARY
DOCTRINE WOULD BE REPUGNANT TO SOUND POLICY, NO LESS THAN TO JUSTICE
AND HUMANITY."  FN6  THUS THE COURTS ALIGNED THEIR POLICY WITH THAT
ENJOINED UPON THE PRESIDENT BY CONGRESS IN 1812, WHEN IT DIRECTED HIM
TO ADMINISTER THE LAWS CONTROLLING ALIENS IN A MANNER THAT WOULD BE
"CONSISTENT WITH THE PUBLIC SAFETY, AND ACCORDING TO THE DICTATES OF
HUMANITY AND NATIONAL HOSPITALITY."  50 U.S.C. SEC. 22. 

IN ASKING THAT THE RIGHTS OF RESIDENT ALIENS BE ABROGATED IN THEIR
BEHALF, PRIVATE LITIGANTS IN EFFECT SEEK TO STAND IN THE POSITION OF
GOVERNMENT.  BUT ONLY THE GOVERNMENT, AND NOT THE PRIVATE INDIVIDUAL,
IS VESTED WITH THE POWER TO PROTECT ALL THE PEOPLE, INCLUDING LOYAL
ALIENS, FROM POSSIBLE INJURY BY DISLOYAL ALIENS.  IF THE PUBLIC WELFARE
DEMANDS THAT THIS ALIEN SHALL NOT RECEIVE COMPENSATION FOR HIS WORK OR
PAYMENT FOR HIS INJURIES RECEIVED IN THE COURSE OF HIS EMPLOYMENT, THE
GOVERNMENT CAN MAKE THE DECISION WITHOUT ALLOWING A WINDFALL TO THESE
CLAIMANTS.  EVEN IF PETITIONER WERE A NON-RESIDENT ENEMY ALIEN, IT
MIGHT BE MORE APPROPRIATE TO RELEASE THE AMOUNT OF HIS CLAIM TO THE
ALIEN PROPERTY CUSTODIAN RATHER THAN TO THE CLAIMANTS; AND THIS IS
PRECISELY WHAT WAS DONE IN BIRGE-FORBES CO. V. HEYE, 251 U.S. 317, 323,
IN WHICH THIS COURT SAID THAT THE SOLE OBJECTION TO GIVING JUDGMENT FOR
AN ALIEN ENEMY "GOES ONLY SO FAR AS IT WOULD GIVE AID AND COMFORT TO
THE OTHER SIDE."  THE ANCIENT RULE AGAINST SUITS BY RESIDENT ALIEN
ENEMIES HAS SURVIVED ONLY SO FAR AS NECESSARY TO PREVENT USE OF THE
COURTS TO ACCOMPLISH A PURPOSE WHICH MIGHT HAMPER OUR OWN WAR EFFORTS
OR GIVE AID TO THE ENEMY.  THIS MAY BE TAKEN AS THE SOUND PRINCIPLE OF
THE COMMON LAW TODAY. 

IT IS ARGUED THAT THE PETITIONER IS BARRED FROM THE COURTS BY THE
TRADING WITH THE ENEMY ACT, 50 U.S.C. APPENDIX.  THE PARTICULAR CLAUSE
RELIED ON IS SEC. 7:  "NOTHING IN THIS ACT SHALL BE DEEMED TO AUTHORIZE
THE PROSECUTION OF ANY SUIT OR ACTION AT LAW OR IN EQUITY IN ANY COURT
WITHIN THE UNITED STATES BY AN ENEMY OR ALLY OF ENEMY PRIOR TO THE END
OF THE WAR, EXCEPT AS PROVIDED IN SECTION 10 HEREOF (WHICH RELATES TO
PATENTS); ...  "  ANALYSIS OF ITS TERMS MAKES CLEAR THAT THIS SECTION
WAS NOT MEANT TO APPLY TO PETITIONER, AND AN EXAMINATION OF ITS
LEGISLATIVE HISTORY MAKES THIS DOUBLY CERTAIN.  SECTION 7 BARS FROM THE
COURTS ONLY AN "ENEMY OR ALLY OF ENEMY."  SECTION 2 OF THE ACT DEFINES
THE "ALIEN ENEMY" TO WHICH THE ACT APPLIES AS THOSE RESIDING WITHIN THE
TERRITORY OWNED OR OCCUPIED BY THE ENEMY; THE ENEMY GOVERNMENT OR ITS
OFFICERS; FN7  OR CITIZENS OF AN ENEMY NATION, WHEREVER RESIDING, AS
THE PRESIDENT BY PROCLAMATION MAY INCLUDE WITHIN THE DEFINITION.  SINCE
THE PRESIDENT HAS NOT UNDER THIS ACT  FN8  MADE ANY DECLARATION AS TO
ENEMY ALIENS, THE ACT DOES NOT BAR PETITIONER FROM MAINTAINING HIS
SUIT. 

THIS INTERPRETATION, COMPELLED BY THE WORDS OF THE ACT, IS WHOLLY IN
ACCORD WITH ITS GENERAL SCOPE, FOR THE TRADING WITH THE ENEMY ACT WAS
NEVER INTENDED, WITHOUT PRESIDENTIAL PROCLAMATION, TO AFFECT RESIDENT
ALIENS AT ALL.  PRIOR TO THE PASSAGE OF THE ACT, THE COURTS HAD
CONSISTENTLY HELD THAT, DURING A STATE OF WAR, COMMERCIAL INTERCOURSE
BETWEEN OUR NATIONALS AND NON-RESIDENT ALIEN ENEMIES, UNLESS
SPECIFICALLY AUTHORIZED BY CONGRESS AND THE EXECUTIVE, WAS ABSOLUTELY
PROHIBITED, AND THAT CONTRACTS MADE IN SUCH INTERCOURSE WERE VOID AND
UNENFORCEABLE.  FN9  THIS STRICT BARRIER COULD BE RELAXED ONLY BY
CONGRESSIONAL DIRECTION, AND THEREFORE THE ACT WAS PASSED WITH ITS
DECLARED PURPOSE "TO MITIGATE THE RULES OF LAW WHICH PROHIBIT ALL
INTERCOURSE BETWEEN THE CITIZENS OF WARRING NATIONS, AND TO PERMIT,
UNDER CAREFUL SAFEGUARDS AND RESTRICTIONS, CERTAIN KINDS OF BUSINESS TO
BE CARRIED ON."  FN10  THUS CONGRESS EXPRESSLY RECOGNIZED BY THE
PASSAGE OF THE ACT THAT "THE MORE ENLIGHTENED VIEWS OF THE PRESENT DAY
AS TO TREATMENT OF ENEMIES MAKES POSSIBLE CERTAIN RELAXATIONS IN THE
OLD LAW."  FN11 

SINCE THE PURPOSE OF THE BILL WAS TO PERMIT CERTAIN RELATIONS WITH
NON-RESIDENT ALIEN ENEMIES, THERE IS NO FRUSTRATION OF ITS PURPOSE IN
PERMITTING RESIDENT ALIENS TO SUE IN OUR COURTS.  STATEMENTS MADE ON
THE FLOOR OF THE HOUSE OF REPRESENTATIVES BY THE SPONSOR OF THE BILL
MAKE THIS INTERPRETATION CONCLUSIVE.  FN12 

NOT ONLY HAS THE PRESIDENT NOT SEEN FIT TO USE THE AUTHORITY
POSSESSED BY HIM UNDER THE TRADING WITH THE ENEMY ACT TO EXCLUDE
RESIDENT ALIENS FROM THE COURTS, BUT HIS ADMINISTRATION HAS ADOPTED
PRECISELY THE OPPOSITE PROGRAM.  THE ATTORNEY GENERAL IS PRIMARILY
RESPONSIBLE FOR THE ADMINISTRATION OF ALIEN AFFAIRS.  HE HAS CONSTRUED
THE EXISTING STATUTES AND PROCLAMATIONS AS NOT BARRING THIS PETITIONER
FROM OUR COURTS,  FN13  AND THIS STAND IS EMPHASIZED BY THE
GOVERNMENT'S APPEARANCE IN BEHALF OF PETITIONER IN THIS CASE.  FN14 

THE CONSEQUENCE OF THIS LEGISLATIVE AND ADMINISTRATIVE POLICY IS A
CLEAR AUTHORIZATION TO RESIDENT ENEMY ALIENS TO PROCEED IN ALL COURTS
UNTIL ADMINISTRATIVE OR LEGISLATIVE ACTION IS TAKEN TO EXCLUDE THEM. 
WERE THIS NOT TRUE, CONTRACTUAL PROMISES MADE TO THEM BY INDIVIDUALS,
AS WELL AS PROMISES HELD OUT TO THEM UNDER OUR LAWS, WOULD BECOME NO
MORE THAN TEASING ILLUSIONS.  THE DOORS OF OUR COURTS HAVE NOT BEEN
SHUT TO PEACEABLE LAW-ABIDING ALIENS SEEKING TO ENFORCE RIGHTS GROWING
OUT OF LEGAL OCCUPATIONS.  LET THE WRIT ISSUE. 

FN1  PETITIONER ARGUES THAT HIS CASE IS COVERED BY ARTICLE 23 H OF
THE ANNEX TO THE IVTH HAGUE CONVENTION OF 1907:  "IT IS ESPECIALLY
PROHIBITED  ...  TO DECLARE ABOLISHED, SUSPENDED, OR INADMISSIBLE IN A
COURT OF LAW THE RIGHTS AND ACTION OF THE NATIONALS OF THE HOSTILE
PARTY."  THIS CLAUSE, WHICH WAS ADDED TO THE CONVENTION OF 1899 WITHOUT
SUBSTANTIAL DISCUSSION EITHER BY THE DELEGATES IN GENERAL ASSEMBLY OR
BY THE COMMITTEE AND SUB-COMMITTEE WHICH DEALT WITH IT, III PROCEEDINGS
OF THE HAGUE CONVENTION OF 1907, 12, 107, 136, 240; AND I IBID. 83, WAS
CONSTRUED BY AN ENGLISH COURT TO APPLY SOLELY IN ENEMY AREAS OCCUPIED
BY A BELLIGERENT.  PORTER V. FREUDENBERG, (1915) 1 K.B. 857.  THE
QUESTION HAS NOT BEEN RAISED IN THE COURTS IN THIS COUNTRY, BUT THE
ENGLISH INTERPRETATION WAS REPEATED WITH APPROVAL BY REPRESENTATIVE
MONTAGUE OF THE INTERSTATE COMMERCE COMMITTEE IN HIS ADDRESS TO THE
HOUSE WHEN HE PRESENTED TO IT THE TRADING WITH THE ENEMY ACT.  55 CONG.
REC. 4842(1917). 

FN2  ACCORDING TO LITTLETON, AN ALIEN MIGHT NOT SUE IN EITHER A REAL
OR PERSONAL ACTION; BUT THIS RULE WAS MODIFIED BY COKE TO BAR SUCH
ACTIONS ONLY BY ALIEN ENEMIES AND TO PERMIT PERSONAL ACTIONS BY ALIEN
FRIENDS.  SEE COKE ON LITTLETON 129 B. POLLOCK AND MAITLAND SUGGEST
THAT THIS MODIFICATION BY COKE WAS "A BOLD TREATMENT OF A CAREFULLY
WORDED TEXT."  1 HISTORY OF ENGLISH LAW, 2D ED., 459.  THE EARLY LAW
TREATED ALL ALIENS AS A GROUP.  SEE THE SUB-TITLES OF POLLOCK AND
MAITLAND'S CHAPTER, "THE SORTS AND CONDITIONS OF MEN," SOME OF WHICH
ARE:  THE KNIGHTS, THE UNFREE, THE CLERGY, ALIENS, THE JEWS, WOMEN,
ETC.  IBID., CHAP. II.  FOR A SUMMARY OF ENGLISH VIEWS NOW LARGELY
OBSOLETE ON ALIEN STANDING IN COURT, SEE HANSARD, LAW RELATING TO
ALIENS, CHAP. 7(1844).  FOR A SURVEY OF THE COMMON LAW ON INHERITANCE
OF LAND BY ALIENS, SEE TECHT V. HUGHES, 229 N.Y. 222, 128 N.E.
185(CARDOZO, J.). 

FN3  PETITIONER WAS INTERNED SOME MONTHS AFTER THE COURT HAD ABATED
HIS ACTION.  THE GOVERNMENT HAS FILED A SUPPLEMENTAL BRIEF STATING THAT
IT DOES NOT CONSIDER THAT THIS CIRCUMSTANCE ALTERS THE POSITION OF
PETITIONER IN RESPECT TO HIS PRIVILEGE OF ACCESS TO THE COURTS. 

FN4  ONE WRITER ESTIMATES THAT HALF OF THE 400 MEN ON BOARD THE
CONSTITUTION WHEN IT CAPTURED THE GUERRIERE WERE SEAMEN WHO HAD
DESERTED THE BRITISH, AND THE SHIP UNITED STATES WAS REPORTED BY ITS
CAPTAIN TO HAVE NO MEN ON BOARD WHO HAD NOT SERVED WITH BRITISH
WARSHIPS.  BRADLEY, THE UNITED EMPIRE LOYALISTS, 192; AND SEE 3
MCMASTER, HISTORY OF THE UNITED STATES, 242.    FN5  FOR COLLECTION OF
CASES, SEE 30 GEORGETOWN L.J. 421; 28 VIRGINIA L.R. 429; 27 YALE L.J.
105; HUBERICH, TRADING WITH THE ENEMY, 188 ET SEQ.; DAIMLER CO. V.
CONTINENTAL TYRE CO., ANNO.  CAS.  1917 C, 170, 204; PETITION OF
BERNHEIMER, 130 F.2D 396; AND FOR ENGLISH CASES, MCNAIR, LEGAL EFFECTS
OF WAR. 

FN6 STORY WAS ONE OF THE FEW COMMENTATORS TO APPROVE ANY PART OF THE
EARLY COMMON LAW RULE.  HE ACCEPTED SO MUCH OF THAT DOCTRINE AS
REQUIRED ENEMY ALIENS ENTITLED TO RELIEF IN THE COURTS TO HAVE ENTERED
THE COUNTRY UNDER SAFE CONDUCT OR LICENSE.  STORY ON CIVIL PLEADINGS,
P. 10; STORY'S EQUITY PLEADINGS, SEC. 51-54, AND PARTICULARLY SEC.
724.  THIS REQUIREMENT WAS REDUCED TO LEGAL FICTION IN CLARKE V. MOREY,
SUPRA, AT 72, WHEN CHIEF JUSTICE KENT HELD THAT "THE LICENSE IS IMPLIED
BY LAW AND THE USAGE OF NATIONS." 

FN7  SOME POSSIBLE CONFUSION ON THE PART OF THE COURT BELOW AND OF
OTHER COURTS MAY HAVE DEVELOPED FROM OUR PER CURIAM OPINION IN EX PARTE
COLONNA, 314 U.S. 510, IN WHICH LEAVE TO FILE A PETITION FOR WRITS OF
PROHIBITION AND MANDAMUS IN CONNECTION WITH A PROCEEDING BROUGHT IN
BEHALF OF THE ITALIAN GOVERNMENT WAS DENIED ON THE BASIS OF THE TRADING
WITH THE ENEMY ACT.  THAT OPINION EMPHASIZED THAT AN ENEMY GOVERNMENT
WAS INCLUDED WITHIN THE DEFINITION OF THE CLASSIFICATION "ENEMY" AS
USED IN THAT ACT, AND THAT SUCH ENEMY PLAINTIFFS HAD NO RIGHT TO
PROSECUTE ACTIONS IN OUR COURTS.  THE DECISION HAS NO BEARING ON THE
RIGHTS OF RESIDENT ENEMY ALIENS.  THE COLONNA DECISION WAS MOMENTARILY
MISAPPLIED IN KAUFMAN V. EISENBERG, 177 N.Y. MISC. 939, 32 N.Y.S.2D
450, BUT THE TRIAL JUDGE CORRECTED A STAY IN PROCEEDINGS HE HAD
PREVIOUSLY ALLOWED, UPON HIS FURTHER CONSIDERATION OF THE FACT THAT THE
PLAINTIFF WAS A RESIDENT ALIEN. 

FN8  THE PRESIDENT HAS ISSUED A PROCLAMATION TAKING CERTAIN STEPS
WITH REFERENCE TO ALIEN ENEMIES UNDER THE ALIEN ENEMY ACT OF 1798 AS
AMENDED, 50 U.S.C. SEC. 21, BUT THIS PROCLAMATION HAS NO BEARING ON THE
POWER OF THE PRESIDENT UNDER THE TRADING WITH THE ENEMY ACT. 

FN9  REPORT OF THE SENATE COMMITTEE ON COMMERCE, REPORT NO. 111, 65TH
CONG., 1ST SESS., PAGES 15-22.  COPPELL V. HALL, 7 WALL.  542, 554,
557, 558. 

FN10  REPORT OF THE SENATE COMMITTEE ON COMMERCE, REPORT NO. 111,
65TH CONG., 1ST SESS., 1. 

FN11  REPORT OF THE SENATE COMMITTEE ON COMMERCE, REPORT NO. 111,
65TH CONG., 1ST SESS., 2. 

FN12  "MR. MONTAGUE:  A GERMAN RESIDENT IN THE UNITED STATES IS NOT
AN ENEMY UNDER THE TERMS OF THE BILL, UNLESS HE SHOULD BE SO DECLARED
SUBSEQUENTLY BY THE PROCLAMATION OF THE PRESIDENT, IN WHICH CASE HE
WOULD HAVE NO STANDING IN COURT."  ... 

"MR. STAFFORD:  DO I UNDERSTAND THAT THIS BILL CONFERS UPON THE
PRESIDENT ANY AUTHORITY TO GRANT TO AN ALIEN SUBJECT DOING BUSINESS IN
THIS COUNTRY THE RIGHT TO SUE IN THE COURTS TO ENFORCE HIS CONTRACT? 

"MR. MONTAGUE:  IF HE IS A RESIDENT OF THIS COUNTRY, HE HAS THAT
RIGHT UNDER THIS BILL WITHOUT THE PROCLAMATION OF THE PRESIDENT. 

"MR. STAFFORD:  IF SO, WHERE IS THAT AUTHORITY? 

"MR. MONTAGUE:  IN THE VERY TERMS OF THE BILL DEFINING AN ENEMY,
WHEREBY GERMAN RESIDENTS IN THE UNITED STATES HAVE ALL RIGHTS IN THIS
RESPECT OF NATIVE-BORN CITIZENS, UNLESS THESE RIGHTS BE RECALLED BY THE
PROCLAMATION OF THE PRESIDENT FOR HOSTILE CONDUCT ON THE PART OF THE
GERMANS RESIDENT IN THE UNITED STATES."  55 CONG. REC. 4842,
4843(1917). 

FN13  "NO NATIVE, CITIZEN, OR SUBJECT OF ANY NATION WITH WHICH THE
UNITED STATES IS AT WAR AND WHO IS RESIDENT IN THE UNITED STATES IS
PREVENTED BY FEDERAL STATUTE OR REGULATION FROM SUING IN FEDERAL OR
STATE COURTS."  DEPT. OF JUSTICE PRESS RELEASE, JAN. 31, 1942. 

FN14 THE DETERMINATION BY CONGRESS AND THE EXECUTIVE NOT TO INTERFERE
WITH THE RIGHTS OF RESIDENT ENEMY ALIENS TO PROCEED IN THE COURTS MARKS
A CHOICE OF REMEDIES RATHER THAN A WAIVER OF PROTECTION.  THE
GOVERNMENT HAS AN ELABORATE PROTECTIVE PROGRAM.  UNDER THE ALIEN ENEMY
ACT, 50 U.S.C. SEC. 21, THE PRESIDENT HAS ORDERED THE INTERNMENT OF
ALIENS, HAS INSTITUTED A SYSTEM OF IDENTIFICATION, AND HAS REGULATED
TRAVEL.  UNDER THE FIRST WAR POWERS ACT, 50 U.S.C. SUPP. I, 1940 ED.
APPENDIX, SEC. 5(B), AND VARIOUS EXECUTIVE ORDERS HE HAS CONTROLLED THE
FUNDS OF RESIDENT ENEMY ALIENS.  MANY OTHER STATUTES MAKE A COMPOSITE
PATTERN WHICH CONGRESS HAS APPARENTLY THOUGHT ADEQUATE FOR THE CONTROL
OF THIS PROBLEM.  SEE, E.G., THE CONTROLS ON ALIEN OWNERSHIP OF LAND IN
THE TERRITORIES, 8 U.S.C. CHAP. 5. 
..END :

















MARINE PROPERTIES V. TRUST CO., 317 U.S. 78 


NO. 24.  ARGUED OCTOBER 16, 19, 1942.  - DECIDED NOVEMBER 9, 1942.  -
125 F.2D 296, AFFIRMED. 


1.  IN EXERCISE OF THE FEDERAL BANKRUPTCY POWER, CONGRESS MAY EXCLUDE
EVERY COMPETING OR CONFLICTING PROCEEDING IN STATE OR FEDERAL
TRIBUNALS.  P. 83. 

2.  ALTHOUGH THE PENDENCY OF A PRIOR PROCEEDING IN A STATE OR FEDERAL
COURT DOES NOT BAR THE FILING OF A PETITION UNDER CHAPTER X OF THE
BANKRUPTCY ACT, THE BANKRUPTCY COURT MAY NOT IN SUCH CASE APPROVE THE
PETITION UNLESS IT APPEARS THAT THE INTERESTS OF CREDITORS AND
STOCKHOLDERS WOULD NOT BE BEST SUBSERVED IN THE PRIOR PROCEEDING.  P.
83. 

3.  THE PARTY FILING A PETITION UNDER CH. X WHILE A PRIOR PROCEEDING
IS PENDING IN A STATE OR FEDERAL COURT HAS THE BURDEN OF SHOWING THAT
THE INTERESTS OF CREDITORS AND STOCKHOLDERS WOULD NOT BE BEST SUBSERVED
IN THE PRIOR PROCEEDING.  P. 83. 

4.  WHEN A PRIOR PROCEEDING IS PENDING, A PETITIONER'S SHOWING OF
"NEED FOR RELIEF" UNDER CH. X, WHICH SEC. 130(7) REQUIRES THAT EVERY
PETITION CONTAIN, MUST DEMONSTRATE THAT AT LEAST IN SOME SUBSTANTIAL
PARTICULAR THE BENEFITS, ADVANTAGES, OR PROTECTION WHICH CH. X AFFORDS
TO CREDITORS OR STOCKHOLDERS ARE UNAVAILABLE IN THE PRIOR PROCEEDING. 
P. 84. 

5.  THAT A DEBTOR WAS SEEKING TO ESCAPE THE JURISDICTION OF A STATE
COURT TO WHICH IT HAD THERETOFORE VOLUNTARILY SUBMITTED, IS IMMATERIAL
IN THE DETERMINATION OF WHETHER ITS PETITION UNDER CH. X WAS FILED IN
"GOOD FAITH" WITHIN THE MEANING OF SEC. 146(4).  P. 84. 

6.  THE ISSUE AS TO THE ADEQUACY OF THE PRIOR PROCEEDINGS AS COMPARED
WITH CH. X IS THE SAME WHETHER THE PETITION IS FILED BY THE DEBTOR OR
BY CREDITORS.  P. 85. 

7.  WHETHER FILED BY THE DEBTOR OR BY OTHERS, ALL PETITIONS UNDER CH.
X MUST SHOW THE "NEED FOR RELIEF" (SECS. 130-131); AND THE BANKRUPTCY
COURT MUST BE SATISFIED IN EVERY CASE THAT THE PETITION HAS BEEN FILED
IN "GOOD FAITH" (SECS. 141-144).  P. 85. 

8.  IN THIS CASE, WHEREIN PRIOR PROCEEDINGS WERE PENDING IN A STATE
COURT, AND THE VALUE OF THE PROPERTY OF THE DEBTOR WAS LESS THAN THE
AMOUNT OF A FIRST MORTGAGE INDEBTEDNESS THEREON, HELD THAT THE DEBTOR,
PETITIONING UNDER CH. X, HAD NOT SUSTAINED THE BURDEN WHICH WAS UPON IT
OF SHOWING THAT THE INTERESTS OF CREDITORS AND STOCKHOLDERS WOULD NOT
BE BEST SUBSERVED IN THE PRIOR PROCEEDINGS IN THE STATE COURT.  P. 85. 

(A)  THE RULE OF FULL PRIORITY OF CREDITORS OVER STOCKHOLDERS,
APPLIED IN SEC. 77B PROCEEDINGS, OBTAINS ALSO IN PROCEEDINGS UNDER CH.
X. P. 85. 

(B)  IT DID NOT SUFFICIENTLY APPEAR IN THIS CASE THAT THE
STOCKHOLDERS WERE WILLING TO MAKE A FRESH CONTRIBUTION IN MONEY OR IN
MONEY'S WORTH IN RETURN FOR A PARTICIPATION REASONABLY EQUIVALENT TO
THEIR CONTRIBUTION.  P. 85. 

(C)  IT DID NOT APPEAR THAT CONTINUATION OF THE STATE PROCEEDINGS
WOULD DENY JUNIOR CREDITORS ANY BENEFITS WHICH CH. X WOULD AFFORD
THEM.  THE FULL PRIORITY RULE WHICH OBTAINS UNDER CH. X PROTECTS THE
RIGHTS OF SENIOR CREDITORS AGAINST DILUTION EITHER BY JUNIOR CREDITORS
OR BY EQUITY INTERESTS.  P. 86. 

(D)  IT DID NOT SUFFICIENTLY APPEAR IN THIS CASE THAT A STATE
FORECLOSURE PROCEEDING, INSTITUTED FOR AND ON BEHALF OF FIRST MORTGAGE
CREDITORS EXCLUSIVELY, WAS INADEQUATE, MEASURED BY CH. X STANDARDS, TO
PROTECT THEIR INTERESTS.  P. 87. 

MARINE HARBOR PROPERTIES, INC. V. MANUFACTURERS TRUST CO., TRUSTEE, ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 315 U.S. 794, TO REVIEW THE REVERSAL OF AN ORDER OF THE
DISTRICT COURT, 41 F.SUPP.  814, APPROVING A PETITION UNDER CHAPTER X
OF THE BANKRUPTCY ACT FILED BY A DEBTOR CORPORATION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE IS WHETHER THE CIRCUIT COURT OF APPEALS WAS
IN ERROR IN HOLDING THAT A DEBTOR'S PETITION FILED BY PETITIONER UNDER
CH. X OF THE BANKRUPTCY ACT (52 STAT. 883, 11 U.S.C. SEC. 501) WAS NOT
FILED IN "GOOD FAITH." 

THE DEBTOR'S SOLE ASSET IS AN APARTMENT BUILDING IN NEW YORK CITY
WHICH IS SUBJECT TO A FIRST MORTGAGE OF $370,000.  THIS MORTGAGE IS
HELD BY THE RESPONDENT, MANUFACTURERS TRUST CO. (SUCCESSOR TO THE
MORTGAGE CORPORATION OF NEW YORK), AS TRUSTEE FOR CERTIFICATE HOLDERS. 
THERE ARE ALSO JUNIOR MORTGAGES AND OTHER CLAIMS, INCLUDING AN
UNSPECIFIED AMOUNT OF UNSECURED INDEBTEDNESS.  CONCEDEDLY THE PROPERTY
OF THE DEBTOR IS WORTH LESS THAN THE AMOUNT OF THE FIRST MORTGAGE
DEBT.  THE FIRST MORTGAGE WAS ORIGINALLY CREATED IN 1931 AND WAS HELD
BY TITLE GUARANTEE AND TRUST CO., WHICH ISSUED AND SOLD TO THE PUBLIC
CERTIFICATES OF PARTICIPATION, GUARANTEED AS TO PRINCIPAL AND INTEREST
BY BOND AND MORTGAGE GUARANTEE CO. THE LATTER COMPANY BECAME INVOLVED
IN FINANCIAL DIFFICULTIES IN 1933 AND WAS TAKEN OVER BY THE
SUPERINTENDENT OF INSURANCE OF NEW YORK FOR REHABILITATION.  FN1
PURSUANT TO PROVISIONS OF THE SCHACKNO ACT (N.Y. LAWS 1933, C. 745),
THE SUPERINTENDENT OF INSURANCE PROMULGATED, IN 1934, A PLAN FOR THE
READJUSTMENT OF THE RIGHTS OF THE CERTIFICATE HOLDERS IN THE MORTGAGE,
BY WHICH THE MORTGAGE WAS EXTENDED TO DECEMBER 1, 1937 AND THE INTEREST
REDUCED.  OVER TWO-THIRDS OF THE CERTIFICATE HOLDERS CONSENTED TO THE
PLAN, AND THE DEBTOR JOINED IN THE EXTENSION AGREEMENT.  THE NEW YORK
COURT APPROVED IT.  IN 1935 THE NEW YORK MORTGAGE COMMISSION SUCCEEDED
THE SUPERINTENDENT OF INSURANCE AS ADMINISTRATOR OF CERTIFICATED BONDS
AND MORTGAGES.  N.Y. LAWS 1935, C. 19, C. 290.  THAT COMMISSION,  FN2
IN 1938, PROPOSED THE DESIGNATION OF THE MORTGAGE CORPORATION OF NEW
YORK AS TRUSTEE OF THE BOND AND MORTGAGE IN THE INSTANT CASE, UNDER A
DECLARATION OF TRUST GRANTING THE TRUSTEE BROAD AND COMPREHENSIVE
POWERS.  THIS PROPOSAL WAS CONSENTED TO BY OVER TWO-THIRDS OF THE
CERTIFICATE HOLDERS AND APPROVED BY THE NEW YORK COURT.  THE ORDER OF
THE COURT PROVIDED "THAT THIS COURT, HAVING ASSUMED JURISDICTION OF
THIS PROCEEDING, SHALL RETAIN JURISDICTION HEREOF UNTIL THE COMPLETE
LIQUIDATION OF THE TRUST ESTATE AND THE TERMINATION OF THE TRUST; AND
THE TRUSTEE, OR ANY OTHER INTERESTED PARTY HEREIN, MAY APPLY AT THE
FOOT OF THIS FINAL ORDER UPON SUCH NOTICE AS THE COURT MAY DIRECT FOR
SUCH OTHER AND FURTHER RELIEF AS TO THE COURT MAY SEEM JUST AND
PROPER." 

THE PRINCIPAL OF THE FIRST MORTGAGE WAS NOT PAID AT ITS EXTENDED
MATURITY IN 1937.  BUT UNTIL APRIL 1, 1941, THE DEBTOR MADE ALL OTHER
PAYMENTS DUE UNDER THE 1934 EXTENSION AGREEMENT.  AT THAT TIME THE
DEBTOR DEFAULTED IN PAYMENT OF INTEREST AND TAXES.  BOTH BEFORE AND
AFTER THAT DEFAULT THE DEBTOR AND THE TRUSTEE NEGOTIATED FOR AN
AGREEMENT OF FURTHER EXTENSION AND MODIFICATION.  BUT NO AGREEMENT
BETWEEN THEM COULD BE REACHED AND NO FURTHER PROPOSAL FOR A
MODIFICATION OR EXTENSION OF THE MORTGAGE WAS PRESENTED TO THE STATE
COURT OR TO THE CERTIFICATE HOLDERS.  ON MAY 1, 1941, THE TRUSTEE
INSTITUTED FORECLOSURE PROCEEDINGS IN THE STATE COURT.  A RECEIVER WAS
APPOINTED, WHO TOOK POSSESSION.  IN SEPTEMBER 1941 THE DEBTOR FILED ITS
VOLUNTARY PETITION UNDER CH. X OF THE BANKRUPTCY ACT.  AN EX PARTE
ORDER APPROVING THE PETITION AND APPOINTING TRUSTEES WAS OBTAINED. 
SHORTLY THEREAFTER THE MORTGAGE TRUSTEE MOVED TO VACATE THAT ORDER AND
TO DISMISS THE DEBTOR'S PETITION ON THE GROUND THAT IT WAS NOT FILED IN
"GOOD FAITH."  THAT MOTION WAS DENIED.  41 F.SUPP.  814.  THE CIRCUIT
COURT OF APPEALS REVERSED, ONE JUDGE DISSENTING, 125 F.2D 296.  WE
GRANTED THE PETITION FOR CERTIORARI BECAUSE OF THE IMPORTANCE IN THE
ADMINISTRATION OF THE BANKRUPTCY ACT OF THE PROBLEMS INVOLVED. 

EVERY PETITION UNDER CH. X MUST STATE, INTER ALIA, "THE SPECIFIC
FACTS SHOWING THE NEED FOR RELIEF UNDER THIS CHAPTER."  SEC. 130(7). 
SEC. 141 PROVIDES THAT THE JUDGE SHALL ENTER AN ORDER APPROVING A
DEBTOR'S PETITION "IF SATISFIED THAT IT COMPLIES WITH THE REQUIREMENTS
OF THIS CHAPTER AND HAS BEEN FILED IN GOOD FAITH, OR DISMISSING IT IF
NOT SO SATISFIED."  SEC. 146 DEFINES "GOOD FAITH" AND PROVIDES IN
PART: 

"WITHOUT LIMITING THE GENERALITY OF THE MEANING OF THE TERM 'GOOD
FAITH', A PETITION SHALL BE DEEMED NOT TO BE FILED IN GOOD FAITH IF - 

     .         .         .         .         . 

"(4)  A PRIOR PROCEEDING IS PENDING IN ANY COURT AND IT APPEARS THAT
THE INTERESTS OF CREDITORS AND STOCKHOLDERS WOULD BE BEST SUBSERVED IN
SUCH PRIOR PROCEEDING." 

THE FEDERAL BANKRUPTCY POWER IS, OF COURSE, PARAMOUNT AND SUPREME AND
MAY BE SO EXERCISED BY CONGRESS AS TO EXCLUDE EVERY COMPETING OR
CONFLICTING PROCEEDING IN STATE OR FEDERAL TRIBUNALS.  KALB V.
FEUERSTEIN, 308 U.S. 433.  IN FASHIONING CH. X CONGRESS, HOWEVER, DID
NOT GO SO FAR.  WHILE THE PENDENCY OF PRIOR PROCEEDINGS IN STATE OR
FEDERAL COURTS DOES NOT BAR THE FILING OF A PETITION UNDER CH. X (SEC.
256), CONGRESS IN EFFECT DIRECTED THE BANKRUPTCY COURTS NOT TO APPROVE
PETITIONS UNDER CH. X IN SUCH CASES UNLESS IT APPEARED THAT THE
INTERESTS OF CREDITORS AND STOCKHOLDERS WOULD NOT BE BEST SUBSERVED IN
THE PRIOR PROCEEDINGS.  AND IT PUT THE BURDEN ON THE PETITIONER TO MAKE
THAT SHOWING.  THE REPORT OF THE HOUSE JUDICIARY COMMITTEE STATES THAT
THE PURPOSE OF SEC. 146(4) WAS TO "STOP THE REMOVAL OF PRIOR PENDING
CASES FROM OTHER COURTS WHERE THE INTERESTS OF CREDITORS AND
STOCKHOLDERS WOULD BE BETTER SERVED BY RETAINING AND CONTINUING THE
PRIOR PROCEEDINGS."  H. REP. NO. 1409, 75TH CONG., 1ST SESS., P. 42. 
SEC. 146 REPRESENTS A CODIFICATION OF SOME OF THE INTERPRETATIONS WHICH
THE COURTS HAD GIVEN THE WORDS "GOOD FAITH" IN PROCEEDINGS UNDER SEC.
77B.  S. REP. NO. 1916, 75TH CONG., 3D SESS., P. 27.  THUS THE
NECESSITY OF SHOWING "A NEED FOR THE MACHINERY OF 77B AS AN ESSENTIAL
IN ACCOMPLISHING A REORGANIZATION BECAUSE OTHER PROCEDURES WERE EITHER
UNAVAILABLE OR MORE CUMBERSOME AND EXPENSIVE" LED COURTS TO FIND AN
ABSENCE OF "GOOD FAITH," IN THE SENSE THAT NO "NEED FOR RELIEF" HAD
BEEN ESTABLISHED, WHERE 77B WAS SOUGHT TO BE EMPLOYED BY A DEBTOR AS "A
MECHANISM FOR PRESERVING EQUITIES AT THE EXPENSE OF CREDITORS."  SEE
REPORT ON THE STUDY AND INVESTIGATION OF THE WORK, ACTIVITIES,
PERSONNEL AND FUNCTIONS OF PROTECTIVE AND REORGANIZATION COMMITTEES,
SECURITIES AND EXCHANGE COMMISSION, PT. VIII, P. 94(1940). 

IN VIEW OF THAT HISTORY, IT SEEMS CLEAR THAT, WHEN A PRIOR PROCEEDING
IS PENDING, A PETITIONER'S SHOWING OF "NEED FOR RELIEF" UNDER CH. X,
REQUIRED TO BE CONTAINED IN EVERY PETITION BY THE EXPRESS PROVISIONS OF
SEC. 130(7), MUST DEMONSTRATE THAT AT LEAST IN SOME SUBSTANTIAL
PARTICULAR THE PRIOR PROCEEDINGS WITHHOLD OR DENY CREDITORS OR
STOCKHOLDERS BENEFITS, ADVANTAGES, OR PROTECTION WHICH CH. X AFFORDS. 
IN ABSENCE OF SUCH A SHOWING, THE "NEED FOR RELIEF" HAS NOT BEEN
ESTABLISHED AND THE DISTRICT COURT IS NOT ENABLED TO MAKE AN INFORMED
JUDGMENT ON THE "GOOD FAITH" ISSUE. 

THE CIRCUIT COURT OF APPEALS IN THIS CASE, AS IN BROOKLYN TRUST CO.
V. REMBAUGH, 110 F.2D 838, HELD THAT THE DEBTOR'S PETITION WAS NOT
FILED IN "GOOD FAITH," SINCE IT WAS SEEKING TO ESCAPE THE JURISDICTION
OF THE STATE COURT TO WHICH IT HAD VOLUNTARILY SUBMITTED ITSELF.  BUT
THAT IS NOT THE TEST WHICH CONGRESS HAS PROVIDED IN SEC. 146(4).  THAT
PROVISION REQUIRES THE BANKRUPTCY COURT TO INQUIRE WHETHER "THE
INTERESTS OF CREDITORS AND STOCKHOLDERS" WOULD BE BETTER SUBSERVED IN
THE PRIOR PROCEEDINGS OR UNDER CH. X. THAT THE DESIRE OF THE PETITIONER
TO ESCAPE THE PRIOR PROCEEDINGS IS IMMATERIAL TO THAT INQUIRY IS
SUPPORTED NOT ONLY BY THE LANGUAGE OF SEC. 146(4) BUT ALSO BY THE FACT
THAT SEC. 256 EXPRESSLY SANCTIONS THE FILING OF PETITIONS UNDER CH. X
ALTHOUGH PRIOR PROCEEDINGS ARE PENDING.  TO DISQUALIFY A PETITIONER
UNDER CH. X MERELY BECAUSE HE HAD IN SOME WAY PARTICIPATED IN THE PRIOR
PROCEEDING WOULD EFFECT A SUBSTANTIAL IMPAIRMENT OF SEC. 146(4), SINCE
IT WOULD BE THE EXCEPTION RATHER THAN THE RULE WHERE BOTH THE DEBTOR
AND THE CREDITORS HAD NOT TAKEN SOME PART IN THE PRIOR PROCEEDINGS. 
FURTHERMORE, THE ISSUE AS TO THE ADEQUACY OF THE PRIOR PROCEEDINGS AS
COMPARED WITH CH. X IS THE SAME WHETHER THE PETITION IS FILED BY
CREDITORS OR BY THE DEBTOR.  ALL PETITIONS, WHETHER FILED BY THE DEBTOR
OR BY OTHERS, MUST SHOW THE "NEED FOR RELIEF" (SECS. 130-131); AND IN
EVERY CASE THE BANKRUPTCY COURT MUST BE SATISFIED THAT THE PETITION HAS
BEEN FILED IN "GOOD FAITH."  SECS. 141-144. 

WE ARE OF THE OPINION, HOWEVER, THAT THE DEBTOR DID NOT SUSTAIN THE
BURDEN WHICH THE FEDERAL STATUTE PLACES ON A PETITIONER.  SO FAR AS THE
"INTERESTS" OF STOCKHOLDERS ARE CONCERNED, IT IS NOT APPARENT THAT THE
EQUITY OWNERS WOULD BE DENIED IN THE STATE FORECLOSURE PROCEEDINGS
BENEFITS, ADVANTAGES, OR PROTECTION WHICH CH. X WOULD AFFORD THEM. 
ADMITTEDLY THE PROPERTY IS WORTH LESS THAN THE AMOUNT OF THE FIRST
MORTGAGE INDEBTEDNESS.  UNDER THE RULE OF NORTHERN PACIFIC RY. CO. V.
BOYD, 228 U.S. 482, AND CASE V. LOS ANGELES LUMBER PRODUCTS CO., 308
U.S. 106, A PLAN OF REORGANIZATION WOULD NOT BE FAIR AND EQUITABLE
WHICH IN SUCH CIRCUMSTANCES ADMITTED THE STOCKHOLDERS TO PARTICIPATION,
UNLESS THE STOCKHOLDERS MADE A FRESH CONTRIBUTION IN MONEY OR IN
MONEY'S WORTH, IN RETURN FOR "A PARTICIPATION REASONABLY EQUIVALENT TO
THEIR CONTRIBUTION."  CASE V. LOS ANGELES LUMBER PRODUCTS CO., SUPRA,
P. 121.  THAT RULE OBTAINS UNDER CH. X AS WELL AS UNDER ITS
PREDECESSOR, SEC. 77B.  THERE IS NO SUGGESTION IN THE RECORD THAT THE
EQUITY OWNERS DESIRE TO MAKE A CONTRIBUTION ON THAT BASIS, AND THAT,
UNLESS THEY ARE ALLOWED TO DO IT UNDER CH. X, THEY WILL BE BARRED.  ALL
THAT THE RECORD SHOWS IS AN AFFIDAVIT BY ONE SILVERMAN THAT, "IF THE
CREDITORS DESIRE LIQUIDATION OF THEIR CLAIMS ON THE BASIS OF PRESENT
ACTUAL VALUES RATHER THAN ON THE FACE AMOUNT OF THEIR CLAIMS," $50,000
IN CASH COULD BE RAISED.  CH. X WOULD NOT PERMIT SUCH A DILUTION OF
CREDITORS' INTERESTS.  HENCE, SUCH A SHOWING DOES NOT ESTABLISH ON
BEHALF OF THE STOCKHOLDERS THAT "NEED FOR RELIEF" WHICH SEC. 130(7),
READ IN LIGHT OF SEC. 146(4), REQUIRES.  IN FACT, THE APPROVAL OF THE
PETITION ON THAT GROUND WOULD BE GIVING THE EQUITY OWNERS A NUISANCE
VALUE WHOLLY UNJUSTIFIED BY THE REORGANIZATION STANDARDS WHICH ARE
INCORPORATED INTO CH. X. 

THE DISTRICT COURT, HOWEVER, CONCLUDED THAT IT WAS IN THE INTERESTS
OF ALL THE CREDITORS THAT THE CH. X PETITION BE APPROVED.  IT NOTED
THAT THE MARKET VALUE OF THE CERTIFICATES WAS FAR UNDER PAR AND THAT
THERE WERE LIENORS AND CREDITORS, OTHER THAN THE FIRST MORTGAGE
CERTIFICATE HOLDERS, WITH WHICH THE BANKRUPTCY COURT, BUT NOT THE STATE
COURT, COULD DEAL.  IF THERE WERE A SHOWING, FOR EXAMPLE, THAT THE
PROPERTY WAS WORTH MORE THAN THE AMOUNT OF FIRST MORTGAGE INDEBTEDNESS
AND IT APPEARED THAT THAT EXCESS VALUE WOULD BE LOST TO THE JUNIOR
INTERESTS IN THE STATE PROCEEDINGS, OR THAT THE STATE PROCEEDINGS WERE
LESS ADEQUATE BY REORGANIZATION STANDARDS THAN THE BANKRUPTCY COURT TO
PROTECT SUCH INTERESTS, APPROVAL OF THE PETITION CLEARLY WOULD BE
JUSTIFIED WHETHER FILED BY THE DEBTOR OR BY CREDITORS.  BUT NO SUCH
SHOWING WAS MADE.  HENCE IT WAS NOT ESTABLISHED THAT CONTINUATION OF
THE STATE PROCEEDINGS WOULD DENY THE JUNIOR CREDITORS ANY BENEFITS
WHICH CH. X WOULD AFFORD THEM.  APPROVAL OF THE PETITION ON THE GROUNDS
ADVANCED BY THE DISTRICT COURT COULD BE MADE ONLY UNDER THE COMPOSITION
THEORY OF REORGANIZATION, WHICH CH. X, LIKE SEC. 77B, REJECTED IN FAVOR
OF THE FULL PRIORITY RULE OF THE BOYD CASE.  SEE CASE V. LOS ANGELES
LUMBER PRODUCTS CO., SUPRA, P. 119, N. 14.  THAT RULE PROTECTS THE
RIGHTS OF SENIOR CREDITORS AGAINST DILUTION EITHER BY JUNIOR CREDITORS
OR BY EQUITY INTERESTS.  SEE ID., P. 123; CONSOLIDATED ROCK PRODUCTS
CO. V. DU BOIS, 312 U.S. 510, 525-526, 529-530. 

THERE REMAINS THE CONTENTION THAT IT WAS IN THE "INTERESTS" OF THE
CERTIFICATE HOLDERS TO HAVE THE PROCEEDINGS TRANSFERRED TO CH. X. IN
THIS CONNECTION, MUCH EMPHASIS IS PLACED ON NUMEROUS SAFEGUARDS
CONTAINED IN CH. X, WHICH THIS COURT REVIEWED IN SECURITIES & EXCHANGE
COMMISSION V. UNITED STATES REALTY & IMP.  CO., 310 U.S. 434, 448-450. 
AND IT IS ASSERTED THAT COMPARABLE SAFEGUARDS ARE WHOLLY OR LARGELY
LACKING IN PROCEEDINGS UNDER THE SCHACKNO ACT.  THOSE CONSIDERATIONS
WOULD BE HIGHLY RELEVANT AND PERSUASIVE IF THIS WERE A CASE OF THE
USUAL REORGANIZATION PROCEEDING DEALING WITH MORE THAN ONE CLASS OF
SECURITIES UNDER THE OLDER PROCEDURES WHICH CH. X WAS DESIGNED TO
IMPROVE AND SUPPLANT.  SEE SECURITIES & EXCHANGE COMMISSION V. UNITED
STATES REALTY & IMP.  CO., SUPRA, P. 448; H. REP. NO. 1409, 75TH CONG.,
1ST SESS., PP. 37 ET SEQ.  THEN THE SAFEGUARDS AFFORDED BY CH. X WOULD
HAVE SPECIAL SIGNIFICANCE IN PROTECTING THE RESPECTIVE CLASSES OF
INVESTORS AGAINST IMPROVIDENT, UNFAIR OR INEQUITABLE ADJUSTMENTS,
COMPROMISES, AND SETTLEMENTS - STEPS WHICH ARE BASIC TO THE
REORGANIZATION PROCESS BUT WHICH IN SELFISH HANDS LED TO MUCH ABUSE. 
H. REP. NO. 1409, 75TH CONG., 1ST SESS., PP. 37 ET SEQ. BUT HERE THE
MACHINERY OF THE STATE WHICH IS BEING USED IS THE FORECLOSURE
PROCEEDING, WHICH, SO FAR AS APPEARS, HAS BEEN INVOKED ON BEHALF OF THE
CERTIFICATE HOLDERS ALONE.  PRESUMPTIVELY, THE RESULT OF THE
FORECLOSURE WILL BE AN APPROPRIATION OF THE ASSETS OF THE DEBTOR FOR
THE BENEFIT OF THE CERTIFICATE HOLDERS EXCLUSIVELY.  THERE IS NO
SHOWING THAT THE FORECLOSURE PROCEEDINGS HAVE BEEN CONDUCTED IN SUCH A
WAY AS TO JEOPARDIZE THE INTERESTS OF THE CERTIFICATE HOLDERS CONTRARY
TO THE DESIGN OF CH. X. THERE IS NO SHOWING THAT ASSETS SUBJECT TO THE
PAYMENT OF THE CERTIFICATES ARE BEING NEGLECTED.  THUS IT IS NOT SHOWN
THAT THE CLAIM AGAINST THE GUARANTEE COMPANY IS NOT BEING PURSUED OR
THAT ITS COLLECTION COULD BETTER BE HANDLED IN PROCEEDINGS UNDER CH. X.
THERE IS NO SHOWING THAT THE MACHINERY EMPLOYED OR AVAILABLE IN THE
STATE FORECLOSURE PROCEEDING TO SAFEGUARD AND PROTECT THE INTERESTS OF
THOSE CREDITORS AFTER THE SALE IS NOT COMPARABLE TO THAT CONTAINED IN
CH. X FOR THE CONSUMMATION OF PLANS WHICH ARE NOT ONLY FAIR BUT
FEASIBLE.  SEC. 221(2).  IN VIEW OF THE BURDEN ON A PETITIONER TO MAKE
THE SHOWING REQUIRED BY SEC. 130(7) AND SEC. 146(4), THE BANKRUPTCY
COURT IS NOT WARRANTED IN ASSUMING, WITHOUT MORE, THAT A STATE
FORECLOSURE PROCEEDING, INSTITUTED FOR AND ON BEHALF OF THE FIRST
MORTGAGE CREDITORS EXCLUSIVELY, IS INADEQUATE, MEASURED BY CH. X
STANDARDS, TO PROTECT THEIR INTERESTS.  THE CONTRARY COURSE WOULD
RESULT IN CH. X MAKING GREATER INROADS ON PRIOR PROCEEDINGS THAN SEC.
130(7) AND SEC. 146(4) INDICATE WAS THE PURPOSE.  AFFIRMED. 

FN1  SEE GENERALLY, REPORT OF COMMISSIONER GEORGE W. ALGER TO THE
GOVERNOR OF THE STATE OF NEW YORK, OCT. 5, 1934. 

FN2  ON THE ACTIVITIES OF THE COMMISSION, SEE ANNUAL REPORT 1939,
N.Y. LEG.  DOC., NO. 94. 
..END :





















WARREN-BRADSHAW CO. V. HALL, 317 U.S. 88 


NO. 21.  ARGUED OCTOBER 16, 1942.  - DECIDED NOVEMBER 9, 1942.  - 124
F.2D 42, AFFIRMED. 


1.  THE APPLICATION OF THE FAIR LABOR STANDARDS ACT DEPENDS UPON THE
CHARACTER OF THE ACTIVITIES OF THE EMPLOYEE.  P. 90. 

2.  EMPLOYEES SEEKING TO RECOVER OVERTIME COMPENSATION AND LIQUIDATED
DAMAGES UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT, HELD TO HAVE
SUSTAINED THE BURDEN OF PROVING THAT THEY WERE ENGAGED IN THE
PRODUCTION OF GOODS FOR INTERSTATE COMMERCE WITHIN THE MEANING OF THE
ACT.  P. 90. 

3.  MEMBERS OF A ROTARY DRILLING CREW, ENGAGED WITHIN A STATE, AS
EMPLOYEES OF AN INDEPENDENT CONTRACTOR, IN PARTIALLY DRILLING OIL WELLS
(TO A DEPTH SHORT OF THE OIL SAND STRATUM) - WHICH WELLS WERE LATER
"BROUGHT IN" BY OTHER WORKMEN; AND SOME OF THE OIL AND GAS FROM WHICH,
IN CRUDE FORM OR AS REFINED PRODUCTS, MOVED IN INTERSTATE COMMERCE -
WERE ENGAGED IN A "PROCESS OR OCCUPATION NECESSARY TO THE PRODUCTION"
OF OIL FOR INTERSTATE COMMERCE, AND WERE COVERED BY THE FAIR LABOR
STANDARDS ACT.  P. 91. 

4.  ASSUMING THAT THIS IS PREREQUISITE TO THE APPLICATION OF THE ACT
IN THIS CASE, THERE WERE REASONABLE GROUNDS FOR THE EMPLOYER TO
ANTICIPATE, AT THE TIME OF DRILLING, THAT OIL WHEN PRODUCED BY THE
WELLS WOULD MOVE INTO OTHER STATES.  P. 92. 

5.  IN THE CASE OF AN EMPLOYEE WHO IS EMPLOYED ON THE BASIS OF AN
EIGHT HOUR DAY AT A FIXED DAILY WAGE, AND REGULARLY WORKS SEVEN DAYS A
WEEK, THE FACT THAT HE IS PAID, AND ACCEPTS, WAGES WHICH ARE IN EXCESS
OF THE STATUTORY MINIMUM, INCLUDING THE MINIMUM FOR OVERTIME, DOES NOT
CONSTITUTE COMPLIANCE WITH THE OVERTIME COMPENSATION REQUIREMENTS OF
THE FAIR LABOR STANDARDS ACT.  OVERNIGHT TRANSPORTATION CO. V. MISSEL,
316 U.S. 572.  P. 93. 

WARREN-BRADSHAW DRILLING CO. V. HALL, AGENT, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 316 U.S. 660, TO REVIEW THE AFFIRMANCE OF A JUDGMENT, 40
F.SUPP.  272, AGAINST AN EMPLOYER IN AN ACTION ON BEHALF OF CERTAIN OF
ITS EMPLOYEES FOR UNPAID OVERTIME COMPENSATION AND LIQUIDATED DAMAGES
UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE CONCERNED HERE, AS IN KIRSCHBAUM CO. V. WALLING, 316 U.S. 517,
WITH A PROBLEM OF STATUTORY DELINEATION, NOT CONSTITUTIONAL POWER, IN
THE APPLICATION OF THE FAIR LABOR STANDARDS ACT  FN1  TO A PARTICULAR
SITUATION.  THIS IS AN ACTION TO RECOVER UNPAID OVERTIME COMPENSATION
AND AN EQUAL AMOUNT AS LIQUIDATED DAMAGES, BROUGHT BY RESPONDENT
EMPLOYEES UNDER SEC. 16(B).  WE MUST DECIDE WHETHER RESPONDENTS ARE
ENGAGED "IN THE PRODUCTION OF GOODS FOR COMMERCE," WITHIN THE MEANING
OF SEC. 7(A) OF THE ACT.  THE DISTRICT COURT HELD THAT THEY WERE SO
ENGAGED, AND, SINCE PETITIONER HAD FAILED TO COMPENSATE THEM FOR
OVERTIME HOURS AS REQUIRED BY SEC. 7(A), ACCORDINGLY RENDERED JUDGMENT
FOR EACH RESPONDENT IN THE APPROPRIATE AMOUNT.  FN2  THE CIRCUIT COURT
OF APPEALS AFFIRMED WITH AN IMMATERIAL MODIFICATION,  FN3  AND THE CASE
COMES HERE ON CERTIORARI. 

THE APPLICATION OF THE ACT DEPENDS UPON THE CHARACTER OF THE
EMPLOYEES' ACTIVITIES.  KIRSCHBAUM CO. V. WALLING, SUPRA, P. 524.  THE
BURDEN WAS THEREFORE UPON RESPONDENTS TO PROVE THAT, IN THE COURSE OF
PERFORMING THEIR SERVICES FOR PETITIONER AND WITHOUT REGARD TO THE
NATURE OF ITS BUSINESS, THEY WERE, AS ITS EMPLOYEES, ENGAGED IN THE
PRODUCTION OF GOODS, WITHIN THE MEANING OF THE ACT, AND THAT SUCH
PRODUCTION WAS FOR INTERSTATE COMMERCE.  WE AGREE WITH BOTH COURTS
BELOW THAT RESPONDENTS HAVE SUSTAINED THAT BURDEN. 

PETITIONER IS THE OWNER AND OPERATOR OF ROTARY DRILLING EQUIPMENT AND
MACHINERY, WHO CONTRACTS WITH THE OWNERS OR LESSEES OF OIL LANDS TO
DRILL HOLES TO AN AGREED-UPON DEPTH SHORT OF THE OIL SAND STRATUM. 
WHEN THAT DEPTH IS REACHED, THE ROTARY RIG IS REMOVED, AND THE
MACHINERY AND CREW MOVE ON TO OTHER LOCATIONS.  FOR REASONS PECULIAR TO
THE OIL INDUSTRY, A CABLE DRILLING CREW THEN UNDERTAKES WITH CABLE
TOOLS TO "BRING IN" THE WELL, OR ELSE DEMONSTRATE THAT IT IS A DRY
HOLE.  RESPONDENTS WERE EMPLOYED BY PETITIONER AS MEMBERS OF ITS ROTARY
DRILLING CREW AND WORKED ON APPROXIMATELY THIRTY-TWO WELLS IN THE
PANHANDLE OIL FIELD OF TEXAS; THIRTY-ONE OF THOSE WELLS PRODUCED OIL,
AND THE OTHER ONE PRODUCED GAS.  PETITIONER WAS NOT THE OWNER OR LESSEE
OF ANY OF THE LANDS ON WHICH RESPONDENTS DRILLED, AND WAS NOT SHOWN TO
HAVE ANY INTEREST THEREIN OR IN THE OIL PRODUCED. 

IN SEC. 3(J) CONGRESS HAS BROADLY DEFINED THE TERM "PRODUCED," N4 AND
HAS PROVIDED THAT "AN EMPLOYEE SHALL BE DEEMED TO HAVE BEEN ENGAGED IN
THE PRODUCTION OF GOODS IF SUCH EMPLOYEE WAS EMPLOYED IN PRODUCING,
MANUFACTURING, MINING, HANDLING, TRANSPORTING, OR IN ANY OTHER MANNER
WORKING ON SUCH GOODS, OR IN ANY PROCESS OR OCCUPATION NECESSARY TO THE
PRODUCTION THEREOF, IN ANY STATE."  WHETHER OR NOT RESPONDENTS, IN
DRILLING TO A SPECIFIED DEPTH SHORT OF OIL, MAY BE REGARDED AS ENGAGED
IN PRODUCING OR MINING - AND WE CERTAINLY ARE NOT TO BE UNDERSTOOD AS
INTIMATING THAT THEY MAY NOT - RECOGNITION OF THE OBVIOUS REQUIRES US
TO HOLD THAT, AT THE VERY LEAST, THEY WERE ENGAGED IN A "PROCESS OR
OCCUPATION NECESSARY TO THE PRODUCTION" OF OIL.  OIL IS OBTAINED ONLY
BY PIERCING THE EARTH'S SURFACE; DRILLING A WELL IS A NECESSARY PART OF
THE PRODUCTIVE PROCESS TO WHICH IT IS INTIMATELY RELATED.  THE
CONNECTION BETWEEN RESPONDENTS' ACTIVITIES IN PARTIALLY DRILLING WELLS
AND THE CAPTURE OF OIL IS QUITE SUBSTANTIAL, AND THOSE ACTIVITIES
CERTAINLY BEAR AS "CLOSE AND IMMEDIATE TIE" TO PRODUCTION AS DID THE
SERVICES OF THE BUILDING MAINTENANCE WORKERS HELD WITHIN THE ACT IN
KIRSCHBAUM CO. V. WALLING, SUPRA, PP. 525-526. 

THE EVIDENCE SUPPORTS THE FINDING THAT SOME OF THE OIL PRODUCED
ULTIMATELY FOUND ITS WAY INTO INTERSTATE COMMERCE.  ALL THE WELLS HAD
PIPELINE CONNECTIONS, SOME OF THEM BEING WITH PETROLEUM COMPANIES
OPERATING ON A NATIONAL SCALE, WHEREIN THE OIL WAS COMMINGLED WITH THE
PRODUCTION OF OTHER WELLS.  OFFICIALS OF THE STATE OF TEXAS TESTIFIED
THAT SOME CRUDE OIL IS SHIPPED OUT OF THE STATE BY THESE PIPELINES, AND
THAT A LARGE PERCENTAGE OF CRUDE OIL SENT TO REFINERIES IN TEXAS
THEREAFTER PASSES OUT OF THE STATE IN THE FORM OF REFINED PRODUCTS. 

PETITIONER CONTESTS THE APPLICABILITY OF THE ACT ON THE GROUND THAT
IT, AS AN INDEPENDENT CONTRACTOR NOT FINANCIALLY INTERESTED IN THE
WELLS, HAD NO INTENTION, EXPECTATION OR BELIEF THAT ANY OIL PRODUCED
WOULD BE SHIPPED IN INTERSTATE COMMERCE, AND CITES AS SUPPORT UNITED
STATES V. DARBY, 312 U.S. 100, 118, WHERE IT WAS SAID THAT THE
"PRODUCTION FOR COMMERCE" INTENDED BY CONGRESS INCLUDES "AT LEAST
PRODUCTION OF GOODS, WHICH, AT THE TIME OF PRODUCTION, THE EMPLOYER,
ACCORDING TO THE NORMAL COURSE OF HIS BUSINESS, INTENDS OR EXPECTS TO
MOVE IN INTERSTATE COMMERCE ALTHOUGH, THROUGH THE EXIGENCIES OF THE
BUSINESS, ALL OF THE GOODS MAY NOT THEREAFTER ACTUALLY ENTER INTERSTATE
COMMERCE."  RESPONDENTS COUNTER WITH THE PROPOSITION THAT IT IS ENOUGH
THAT THE OWNERS OF THE OIL WELLS EXPECTED THE OIL PRODUCED TO MOVE
ACROSS STATE LINES, BUT THE GOVERNMENT DOES NOT ASK,  FN5  AND THERE IS
NO NEED FOR, US TO PASS UPON THAT PROPOSITION.  THE ACT EXTENDS AT
LEAST TO THE EMPLOYER WHO EXPECTS GOODS TO MOVE IN INTERSTATE
COMMERCE.  UNITED STATES V. DARBY, SUPRA.  ASSUMING THAT SUCH
EXPECTATION, OR A REASONABLE BASIS THEREFOR, WAS NECESSARY ON
PETITIONER'S PART BEFORE THE APPLICATION OF THE ACT TO PETITIONER, IT
IS HERE PRESENT.  THE RECORD CONTAINS AMPLE INDICATION THAT THERE WERE
REASONABLE GROUNDS FOR PETITIONER TO ANTICIPATE, AT THE TIME OF
DRILLING, THAT OIL PRODUCED BY THE WELLS DRILLED, WOULD MOVE INTO OTHER
STATES.  PETITIONER, CLOSELY IDENTIFIED AS IT IS WITH THE BUSINESS OF
OIL PRODUCTION, CANNOT ESCAPE THE IMPACT OF THE ACT BY A TRANSPARENT
CLAIM OF IGNORANCE OF THE INTERSTATE CHARACTER OF THE TEXAS OIL
INDUSTRY.  ST. JOHN V. BROWN, 38 F.SUPP.  385, 388; CF. FLEMING V.
ENTERPRISE BOX CO., 37 F.SUPP.  331, 334-335, AFFIRMED, 125 F.2D 897. 

ONE FINAL CONTENTION MERITS BUT SLIGHT CONSIDERATION.  RESPONDENTS
WERE EMPLOYED ON THE BASIS OF AN EIGHT HOUR DAY AND REGULARLY WORKED
SEVEN DAYS A WEEK, RECEIVING FIXED WAGES RANGING FROM $6.50 TO $11 PER
DAY.  THERE WAS NO AGREEMENT PROVIDING FOR AN HOURLY RATE OF PAY OR
THAT THE WEEKLY SALARY INCLUDED ADDITIONAL COMPENSATION FOR OVERTIME
HOURS.  PETITIONER URGES THAT IT COMPLIED WITH THE OVERTIME
COMPENSATION REQUIREMENTS OF THE ACT BECAUSE RESPONDENTS RECEIVED WAGES
IN EXCESS OF THE STATUTORY MINIMUM WAGE, INCLUDING TIME AND ONE-HALF OF
THAT MINIMUM WAGE FOR ALL OVERTIME HOURS, WHICH WAGES RESPONDENTS
IMPLIEDLY AGREED INCLUDED OVERTIME COMPENSATION BY ACCEPTING THEM.  A
SIMILAR ARGUMENT WAS SQUARELY REJECTED IN OVERNIGHT MOTOR CO. V.
MISSEL, 316 U.S. 572.  AFFIRMED. 

FN1  52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ. 

FN2  40 F.SUPP.  272. 

FN3  124 F.2D 42. 

FN4  "'PRODUCED' MEANS PRODUCED, MANUFACTURED, MINED, HANDLED, OR IN
ANY OTHER MANNER WORKED ON IN ANY STATE; ...  " 

FN5  THE SOLICITOR GENERAL SUBMITTED A BRIEF ON BEHALF OF THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT
OF LABOR, AS AMICUS CURIAE. 

MR. JUSTICE ROBERTS: 

I DISSENT, AS I DID IN KIRSCHBAUM CO. V. WALLING, 316 U.S. 517, AND
FOR THE SAME REASON.  BUT I THINK THE PRESENT A MORE EXTRAVAGANT
APPLICATION OF THE STATUTE THAN THAT THERE APPROVED.  WE MAY ASSUME
THAT CONGRESS, IN DRAFTING THE ACT, HAD IN MIND THE PRACTICAL, AS
DISTINGUISHED FROM A THEORETICAL, DISTINCTION BETWEEN WHAT IS NATIONAL
AND WHAT IS LOCAL,  - BETWEEN WHAT, IN FACT, TOUCHES INTERSTATE
COMMERCE AND WHAT, IN TRUTH, IS INTRASTATE. 

THE PHRASES ON WHICH RESPONDENTS RELY ARE THESE:  AN EMPLOYEE "WHO IS
ENGAGED IN (INTERSTATE) COMMERCE OR IN THE PRODUCTION OF GOODS FOR
(INTERSTATE) COMMERCE," SEC. 7(A); AND "'PRODUCED' MEANS PRODUCED,
MANUFACTURED, MINED, HANDLED, OR IN ANY OTHER MANNER WORKED ON IN ANY
STATE; AND FOR THE PURPOSES OF THIS ACT AN EMPLOYEE SHALL BE DEEMED TO
HAVE BEEN ENGAGED IN THE PRODUCTION OF GOODS IF SUCH EMPLOYEE WAS
EMPLOYED IN PRODUCING, MANUFACTURING, MINING, HANDLING, TRANSPORTING,
OR IN ANY OTHER MANNER WORKING ON SUCH GOODS, OR IN ANY PROCESS OR
OCCUPATION NECESSARY TO THE PRODUCTION THEREOF, IN ANY STATE," SEC.
3(J). 

THE OPINION DISAVOWS ANY THOUGHT THAT THE RESPONDENTS MAY BE CLASSED
AS THOSE WHO MINE THE OIL WHICH PASSES INTO COMMERCE; BUT THIS SEEMS TO
BE A RESERVATION INTENDED NOT TO PRECLUDE SUCH A HOLDING.  THE COURT
RELIES, RATHER, ON THE ACT'S INCLUSION OF ANYONE EMPLOYED "IN ANY
PROCESS OR OCCUPATION NECESSARY TO THE PRODUCTION" OF GOODS FOR
COMMERCE. 

THE REASONING SEEMS TO BE AS FOLLOWS:  THE OIL WILL PASS INTO COMMERCE
IF IT IS MINED.  BUT IT CANNOT BE MINED UNLESS SOMEBODY DRILLS A WELL. 
AN INDEPENDENT CONTRACTOR'S MEN DO PART OF THE DRILLING.  THEIR WORK IS
"NECESSARY" TO THE MINING AND THE TRANSPORTATION OF THE OIL.  SO THEY
FALL WITHIN THE ACT. 

THIS IS TO IGNORE ALL PRACTICAL DISTINCTION BETWEEN WHAT IS PAROCHIAL
AND WHAT IS NATIONAL.  IT IS BUT THE APPLICATION TO THE PRACTICAL
AFFAIRS OF LIFE OF A PHILOSOPHIC AND IMPRACTICAL TEST.  IT IS BUT TO
REPEAT, IN ANOTHER FORM, THE OLD STORY OF THE PEBBLE THROWN INTO THE
POOL, AND THE THEORETICALLY INFINITE EXTENT OF THE RESULTING WAVES,
ALBEIT TOO TINY TO BE SEEN OR FELT BY THE EXERCISE OF ONE'S SENSES. 

THE LABOR OF THE MAN WHO MADE THE TOOLS WHICH DRILLED THE WELL, THAT
OF THE SAWYER WHO CUT THE WOOD INCIDENTALLY USED, THAT OF HIM WHO MINED
THE IRON OF WHICH THE TOOLS WERE MADE, ARE ALL JUST AS NECESSARY TO THE
ULTIMATE EXTRACTION OF OIL AS THE LABOR OF RESPONDENTS.  EACH IS AN
ANTECEDENT OF THE CONSEQUENT,  - THE PRODUCTION OF THE GOODS FOR
COMMERCE.  INDEED, IF RESPONDENTS WERE NOT FED, THEY COULD NOT HAVE
DRILLED THE WELL, AND THE OIL WOULD NOT HAVE GONE INTO COMMERCE.  IS
THE COOK'S WORK "NECESSARY" TO THE PRODUCTION OF THE OIL, AND WITHIN
THE ACT? 

I THINK CONGRESS COULD NOT AND DID NOT INTEND TO EXERT ITS GRANTED
POWER OVER INTERSTATE COMMERCE UPON WHAT IN PRACTICE AND COMMON
UNDERSTANDING IS PURELY LOCAL ACTIVITY, ON THE PRETEXT THAT EVERYTHING
EVERYBODY DOES IS A CONTRIBUTING CAUSE TO THE EXISTENCE OF COMMERCE
BETWEEN THE STATES, AND IN THAT SENSE NECESSARY TO ITS EXISTENCE. 
..END :






RIGGS V. DEL DRAGO, 317 U.S. 95 


NO. 30.  ARGUED OCTOBER 20, 1942.  - DECIDED NOVEMBER 9, 1942.  - 287
N.Y. 61, 38 N.E.2D 131, REVERSED. 


1.  SECTION 124 OF THE NEW YORK DECEDENT ESTATE LAW, REQUIRING THAT,
UNLESS OTHERWISE DIRECTED BY THE DECEDENT'S WILL, THE BURDEN OF ANY
FEDERAL ESTATE TAX PAID BY THE EXECUTOR OR ADMINISTRATOR BE APPORTIONED
AMONG THE BENEFICIARIES OF THE ESTATE, IS NOT IN CONFLICT WITH THE
FEDERAL ESTATE TAX LAW (INTERNAL REVENUE CODE, SEC. 800 ET SEQ.), AND
DOES NOT CONTRAVENE THE SUPREMACY CLAUSE OF THE FEDERAL CONSTITUTION. 
PP. 97, 102. 

THE INTENT OF CONGRESS WAS THAT THE FEDERAL ESTATE TAX SHOULD BE PAID
OUT OF THE ESTATE AS A WHOLE, AND THAT THE DISTRIBUTION OF THE
REMAINING ESTATE AND THE ULTIMATE IMPACT OF THE FEDERAL TAX SHOULD BE
DETERMINED UNDER THE STATE LAW.  THE PROVISIONS OF THE REVENUE ACT OF
1916 AND SUBSEQUENT ACTS, THEIR LEGISLATIVE HISTORY AND ADMINISTRATIVE
INTERPRETATION SUPPORT THIS CONCLUSION; AND SECS. 826(B), 826(C), AND
826(D) OF THE INTERNAL REVENUE CODE DO NOT REQUIRE A DIFFERENT RESULT. 

2.  NOR DOES THE FACT THAT THE ULTIMATE INCIDENCE OF THE FEDERAL
ESTATE TAX IS THUS GOVERNED BY STATE LAW VIOLATE THE CONSTITUTIONAL
REQUIREMENT OF GEOGRAPHICAL UNIFORMITY IN FEDERAL TAXATION.  P. 102. 

RIGGS, SPECIAL GUARDIAN, V. DEL DRAGO ET AL. 

CERTIORARI TO THE SURROGATE'S COURT OF NEW YORK COUNTY, NEW YORK. 

CERTIORARI, 315 U.S. 795, TO REVIEW A DECISION OF THE COURT OF
APPEALS OF NEW YORK, HOLDING UNCONSTITUTIONAL SECTION 124 OF THE NEW
YORK DECEDENT ESTATE LAW.  THE SURROGATE'S COURT ENTERED ITS ORDER UPON
THE REMITTITUR OF THE COURT OF APPEALS. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER SEC. 124 OF THE NEW YORK
DECEDENT ESTATE LAW,  FN1  WHICH PROVIDES IN EFFECT THAT, EXCEPT AS
OTHERWISE DIRECTED BY THE DECEDENT'S WILL, THE BURDEN OF ANY FEDERAL
DEATH TAXES PAID BY THE EXECUTOR OR ADMINISTRATOR SHALL BE SPREAD
PROPORTIONATELY AMONG THE DISTRIBUTEES OR BENEFICIARIES OF THE ESTATE,
IS UNCONSTITUTIONAL BECAUSE IN CONFLICT WITH THE FEDERAL ESTATE TAX
LAW, INTERNAL REVENUE CODE, SEC. 800 ET SEQ. 

TESTATRIX, A RESIDENT OF NEW YORK, DIED ON OCTOBER 8, 1937, LEAVING A
WILL DATED MARCH 27, 1934, WHICH, AFTER CERTAIN GIFTS OF PERSONAL
EFFECTS AND SMALL SUMS OF CASH, BEQUEATHED $300,000 OUTRIGHT TO
RESPONDENT GIOVANNI DEL DRAGO, AND CREATED A TRUST OF $200,000 FOR THE
BENEFIT OF RESPONDENT MARCEL DEL DRAGO DURING HIS LIFE, WITH REMAINDER
OVER UPON HIS DEATH.  THE RESIDUE OF TESTATRIX'S ESTATE WAS LEFT IN
TRUST FOR THE BENEFIT OF GIOVANNI DURING HIS LIFE, WITH REMAINDER OVER
UPON HIS DEATH.  THE WILL CONTAINED NO REFERENCE TO THE PAYMENT OF
ESTATE OR INHERITANCE TAXES. 

THE EXECUTORS PAID APPROXIMATELY $230,000 ON ACCOUNT OF THE FEDERAL
ESTATE TAX, AND THEN ASKED THE SURROGATE, IN A PETITION FOR THE
SETTLEMENT OF THEIR ACCOUNT, TO DETERMINE WHETHER THAT PAYMENT SHOULD
BE EQUITABLY APPORTIONED AMONG ALL THE PERSONS BENEFICIALLY INTERESTED
IN THE ESTATE, PURSUANT TO SEC. 124 OF THE DECEDENT ESTATE LAW. 
GIOVANNI AND MARCEL DEL DRAGO ANSWERED, RAISING OBJECTIONS TO THE
CONSTITUTIONALITY OF SEC. 124.  PETITIONER, WHO WAS APPOINTED SPECIAL
GUARDIAN TO REPRESENT THE INTERESTS OF THE INFANT REMAINDERMEN UNDER
THE RESIDUARY TRUST, URGED THAT THE TAX BE APPORTIONED.  THE SURROGATE
OVERRULED THE CONSTITUTIONAL OBJECTIONS, AND DIRECTED APPORTIONMENT. 
FN2  THE NEW YORK COURT OF APPEALS, BY A DIVIDED COURT, REVERSED,
HOLDING SEC. 124 REPUGNANT TO THE FEDERAL ESTATE TAX LAW - PARTICULARLY
TO SEC. 826(B) OF THE INTERNAL REVENUE CODE - AND IN VIOLATION OF THE
SUPREMACY (ART. VI, CL. 2) AND THE UNIFORMITY (ART. I, SEC. 8, CL. 1)
CLAUSES OF THE CONSTITUTION.  FN3  THE IMPORTANCE OF THE QUESTION MOVED
US TO GRANT CERTIORARI. 

WE ARE OF OPINION THAT CONGRESS INTENDED THAT THE FEDERAL ESTATE TAX
SHOULD BE PAID OUT OF THE ESTATE AS A WHOLE, AND THAT THE APPLICABLE
STATE LAW AS TO THE DEVOLUTION OF PROPERTY AT DEATH SHOULD GOVERN THE
DISTRIBUTION OF THE REMAINDER AND THE ULTIMATE IMPACT OF THE FEDERAL
TAX; ACCORDINGLY, SEC. 124 IS NOT IN CONFLICT WITH THE FEDERAL ESTATE
TAX LAW.  THIS CONCLUSION IS BASED UPON THE PROVISIONS OF THE REVENUE
ACT OF 1916, 39 STAT. 756, AND SUBSEQUENT ACTS, THEIR LEGISLATIVE
HISTORY AND THEIR ADMINISTRATIVE INTERPRETATION. 

IN THE ACT OF 1916 CONGRESS TURNED FROM THE PREVIOUS CENTURY'S
INHERITANCE TAX UPON THE RECEIPT OF PROPERTY BY SURVIVORS (SEE KNOWLTON
V. MOORE, 178 U.S. 41; SCHOLEY V. REW, 23 WALL.  331) TO AN ESTATE TAX
UPON THE TRANSMISSION OF A STATUTORY "NET ESTATE" BY A DECEDENT.  THAT
ACT DIRECTED PAYMENT BY THE EXECUTOR IN THE FIRST INSTANCE, SEC. 207,
BUT PROVIDED ALSO FOR PAYMENT IN THE EVENT THAT HE FAILED TO PAY, SEC.
208.  IT DID NOT UNDERTAKE IN ANY MANNER TO SPECIFY WHO WAS TO BEAR THE
BURDEN OF THE TAX.  ITS LEGISLATIVE HISTORY INDICATES CLEARLY THAT
CONGRESS DID NOT CONTEMPLATE THAT THE GOVERNMENT WOULD BE INTERESTED IN
THE DISTRIBUTION OF THE ESTATE AFTER THE TAX WAS PAID, AND THAT
CONGRESS INTENDED THAT STATE LAW SHOULD DETERMINE THE ULTIMATE THRUST
OF THE TAX.  FN4  THAT CONGRESS, FROM 1916 ONWARD, HAS UNDERSTOOD LOCAL
LAW AS GOVERNING THE DISTRIBUTION OF THE ESTATE AFTER PAYMENT OF THE
TAX (WITH THE LIMITED EXCEPTIONS CREATED BY SEC. 826(C) AND (D) OF THE
INTERNAL REVENUE CODE, TO BE DISCUSSED PRESENTLY) IS CONFIRMED BY SEC.
812(D) OF THE CODE, DEALING WITH CHARITABLE DEDUCTIONS, WHICH
RECOGNIZES THAT ESTATE TAXES MAY BE PAYABLE IN WHOLE OR IN PART OUT OF
CERTAIN BEQUESTS, ETC., "BY THE LAW OF THE JURISDICTION UNDER WHICH THE
ESTATE IS ADMINISTERED."  FN5  THE ADMINISTRATIVE INTERPRETATION HAS
BEEN IN ACCORD,  FN6  AND THAT HAS BEEN THE UNDERSTANDING OF THE
FEDERAL COURTS,  FN7  AND OF SOME STATE COURTS.  FN8 

IN REACHING A CONTRARY RESULT, THE COURT BELOW RELIED PRIMARILY UPON
SEC. 826(B).  FN9  BUT THAT SECTION DOES NOT DIRECT HOW THE ESTATE IS
TO BE DISTRIBUTED, NOR DOES IT DETERMINE WHO SHALL BEAR THE ULTIMATE
BURDEN OF THE TAX.  AS POINTED OUT BEFORE, WHILE THE FEDERAL STATUTE
NORMALLY CONTEMPLATES PAYMENT OF THE TAX BEFORE THE ESTATE IS
DISTRIBUTED, SEC. 822(B) OF THE CODE, PROVISION IS MADE FOR COLLECTION
OF THE TAX IF DISTRIBUTION SHOULD PRECEDE PAYMENT, SEC. 826(A).  IF ANY
DISTRIBUTEE IS THUS CALLED UPON TO PAY THE TAX, SEC. 826(B) PROVIDES
THAT SUCH PERSON "SHALL BE ENTITLED TO REIMBURSEMENT OUT OF ANY PART OF
THE ESTATE STILL UNDISTRIBUTED OR BY A JUST AND EQUITABLE CONTRIBUTION
BY THE PERSONS WHOSE INTEREST IN THE ESTATE OF THE DECEDENT WOULD HAVE
BEEN REDUCED IF THE TAX HAD BEEN PAID BEFORE THE DISTRIBUTION OF THE
ESTATE."  BY THAT SECTION CONGRESS INTENDED TO PROTECT A DISTRIBUTEE
AGAINST BEARING A GREATER BURDEN OF THE TAX THAN HE WOULD HAVE
SUSTAINED HAD THE TAX BEEN CARVED OUT OF THE ESTATE PRIOR TO
DISTRIBUTION; ANY DOUBT THAT THIS IS THE PROPER CONSTRUCTION IS REMOVED
BY THE CONCLUDING CLAUSE OF THE SECTION, SPECIFICALLY STATING THAT IT
IS "THE PURPOSE AND INTENT OF THIS SUBCHAPTER THAT SO FAR AS IS
PRACTICABLE AND UNLESS OTHERWISE DIRECTED BY THE WILL OF THE DECEDENT
THE TAX SHALL BE PAID OUT OF THE ESTATE BEFORE ITS DISTRIBUTION." 
CHARGE ON THE RESIDUARY ESTATE; TO READ THE PHRASE "THE TAX SHALL BE
PAID OUT OF THE ESTATE" AS MEANING "THE TAX SHALL BE PAID OUT OF THE
RESIDUARY ESTATE" IS TO DISTORT THE PLAIN LANGUAGE OF THE SECTION AND
TO CREATE AN OBVIOUS FALLACY.  FOR IN SOME ESTATES THERE MAY BE NO
RESIDUE, OR ELSE ONE TOO SMALL TO SATISFY THE TAX; RESORT MUST THEN BE
HAD TO STATE LAW TO DETERMINE WHETHER PERSONALTY OR REALTY, OR GENERAL,
DEMONSTRATIVE OR SPECIAL LEGACIES ABATE FIRST.  IN SHORT, SEC. 826(B),
ESPECIALLY WHEN CAST IN THE BACKGROUND OF CONGRESSIONAL INTENT,
DISCUSSED BEFORE, SIMPLY PROVIDES THAT, IF THE TAX MUST BE COLLECTED
AFTER DISTRIBUTION, THE FINAL IMPACT OF THE TAX SHALL BE THE SAME AS
THOUGH IT HAD FIRST BEEN TAKEN OUT OF THE ESTATE BEFORE DISTRIBUTION,
THUS LEAVING TO STATE LAW THE DETERMINATION OF WHERE THAT FINAL IMPACT
SHALL BE. 

RESPONDENTS ALSO RELY ON SEC. 826(C),  FN10  AUTHORIZING THE EXECUTOR
TO COLLECT THE PROPORTIONATE SHARE OF THE TAX FROM THE BENEFICIARY OF
LIFE INSURANCE INCLUDABLE IN THE GROSS ESTATE BY REASON OF SEC. 811(G),
AND SEC. 826(D),  FN11  AUTHORIZING SIMILAR ACTION AGAINST A PERSON
RECEIVING PROPERTY SUBJECT TO A POWER WHICH IS TAXABLE UNDER SEC.
811(F), AS FORBIDDING FURTHER APPORTIONMENT BY FORCE OF STATE LAW
AGAINST OTHER DISTRIBUTEES.  FN12  BUT THESE SECTIONS DEAL WITH
PROPERTY WHICH DOES NOT PASS THROUGH THE EXECUTOR'S HANDS, AND THE
CONGRESSIONAL DIRECTION WITH REGARD TO SUCH PROPERTY IS WHOLLY
COMPATIBLE WITH THE INTENT TO LEAVE THE DETERMINATION OF THE BURDEN OF
THE ESTATE TAX TO STATE LAW AS TO PROPERTIES ACTUALLY HANDLED AS PART
OF THE ESTATE BY THE EXECUTOR. 

SINCE SEC. 124 OF THE NEW YORK DECEDENT ESTATE LAW IS NOT IN CONFLICT
WITH THE FEDERAL ESTATE TAX STATUTE, IT DOES NOT CONTRAVENE THE
SUPREMACY CLAUSE OF THE CONSTITUTION.  NOR DOES THE FACT THAT THE
ULTIMATE INCIDENCE OF THE FEDERAL ESTATE TAX IS GOVERNED BY STATE LAW
VIOLATE THE REQUIREMENT OF GEOGRAPHICAL UNIFORMITY.  CF. PHILLIPS V.
COMMISSIONER, 283 U.S. 589, 602. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  CHAPTER 709, LAWS OF 1930. 

FN2  175 MISC. (N.Y.)  489, 23 N.Y.S.2D 943. 

FN3  287 N.Y. 61, 38 N.E.2D 131. 

FN4  CONGRESSMAN CORDELL HULL, ONE OF THE SUPPORTERS OF THE 1916 ACT
AND ITS REPUTED DRAFTSMAN, DECLARED:  "UNDER THE GENERAL LAWS OF
DESCENT THE PROPOSED ESTATE TAX WOULD BE FIRST TAKEN OUT OF THE NET
ESTATE BEFORE DISTRIBUTION, AND DISTRIBUTION MADE UNDER THE SAME RULE
THAT WOULD OTHERWISE GOVERN IT.  WHERE THE DECEDENT MAKES A WILL HE CAN
ALLOW THE ESTATE TAX TO FASTEN ON HIS NET ESTATE IN THE SAME MANNER, OR
IF HE OBJECTS TO THIS EQUITABLE METHOD OF IMPOSING IT UPON THE ENTIRE
NET ESTATE BEFORE DISTRIBUTION HE CAN INSERT A RESIDUARY CLAUSE OR
OTHER PROVISION IN HIS WILL, THE EFFECT OF WHICH WOULD MORE OR LESS
CHANGE THE INCIDENCE OF THE TAX."  53 CONG. REC. 10657. 

CONGRESSMAN KITCHIN, CHAIRMAN OF THE HOUSE WAYS AND MEANS COMMITTEE,
STATED:  "WE LEVY AN ENTIRELY DIFFERENT SYSTEM OF INHERITANCE TAXES. 
WE LEVY THE TAX ON THE TRANSFER OF THE FLAT OR WHOLE NET ESTATE.  WE DO
NOT FOLLOW THE BENEFICIARIES AND SEE HOW MUCH THIS ONE GETS AND THAT
ONE GETS, AND WHAT RATE SHOULD BE LEVIED ON LINEAL AND WHAT ON
COLLATERAL RELATIONS, BUT WE SIMPLY LEVY ON THE NET ESTATE.  THIS ALSO
PREVENTS THE FEDERAL GOVERNMENT, THROUGH THE TREASURY DEPARTMENT, GOING
INTO THE COURTS CONTESTING AND CONSTRUING WILLS AND STATUTES OF
DISTRIBUTION."  53 CONG. REC. APP. P. 1942. 

FN5  SECTION 812(D) WAS FIRST ENACTED AS SEC. 303(A) OF THE 1924 ACT,
43 STAT. 253.  IT WAS REPEALED BY SEC. 323(A) OF THE 1926 ACT, 44 STAT.
9, AND REENACTED BY SEC. 807 OF THE 1932 ACT, 47 STAT. 169.  THE
COMMITTEE REPORTS ACCOMPANYING THE 1932 ACT RECOGNIZE THAT LOCAL LAW
DETERMINES THE ULTIMATE INCIDENCE OF THE FEDERAL ESTATE TAX.  H. REP.
NO. 708, 72D CONG., 1ST SESS., P. 49; S. REP. NO. 665, 72D CONG., 1ST
SESS., P. 52.  SEE ALSO ARTICLE 44 OF REGULATIONS 68 AND REGULATIONS
80; SEC. 81.84 OF REGULATIONS 105. 

FN6  THE TREASURY HAS TAKEN THE POSITION, AT LEAST SINCE 1922, THAT
IT HAS NO INTEREST IN THE DISTRIBUTION OF THE BURDEN OF THE ESTATE
TAX.  SEE ARTICLE 85 OF REGULATIONS 63; ARTICLE 87 OF REGULATIONS 68,
REGULATIONS 70(1926 AND 1929 EDS.), AND REGULATIONS 80(1934 AND 1937
EDS.); AND SEC. 81.84 OF REGULATIONS 105. 

FN7  EDWARDS V. SLOCUM, 287 F. 651, 653, AFFIRMED, 264 U.S. 61, 63;
Y.M.C.A. V. DAVIS, 264 U.S. 47, 51; NEW YORK TRUST CO. V. EISNER, 256
U.S. 345, 349; HEPBURN V. WINTHROP, 65 APP. D.C. 309, 83 F.2D 566,
572. 

FN8  AMOSKEAG TRUST CO. V. TRUSTEES OF DARTMOUTH COLLEGE, 89 N.H.
471, 200 A. 786; THOMPSON V. UNION MERCANTILE TRUST CO., 164 ARK. 411,
262 S.W. 324; HENDERSON V. USHER, 125 FLA. 709, 170 SO. 846.  AND SEE
IN RE NEWTON'S ESTATE, 74 PA. SUPER.  CT. 361; PLUNKETT V. OLD COLONY
TRUST CO., 233 MASS. 471, 124 N.E. 265; CORBIN V. TOWNSHEND, 92 CONN.
501, 103 A. 647; GAEDE V. CARROLL, 114 N.J. EQ. 524, 169 A. 172. 

BUT COMPARE MATTER OF HAMLIN, 226 N.Y. 407, 124 N.E. 4; FARMERS' LOAN
& TRUST CO. V. WINTHROP, 238 N.Y. 488, 144 N.E. 769; MATTER OF OAKES,
248 N.Y. 280, 162 N.E. 79; BEMIS V. CONVERSE, 246 MASS. 131, 140 N.E.
686. 

FN9  THIS SECTION WAS ORIGINALLY ENACTED AS PART OF SEC. 208 OF THE
ACT OF 1916.  ITS FULL TEXT IS AS FOLLOWS: 

SEC. 826.  COLLECTION OF UNPAID TAX. 

     .         .    .         .         . 

(B)  REIMBURSEMENT OUT OF ESTATE.  IF THE TAX OR ANY PART THEREOF IS
PAID BY, OR COLLECTED OUT OF THAT PART OF THE ESTATE PASSING TO OR IN
THE POSSESSION OF, ANY PERSON OTHER THAN THE EXECUTOR IN HIS CAPACITY
AS SUCH, SUCH PERSON SHALL BE ENTITLED TO REIMBURSEMENT OUT OF ANY PART
OF THE ESTATE STILL UNDISTRIBUTED OR BY A JUST AND EQUITABLE
CONTRIBUTION BY THE PERSONS WHOSE INTEREST IN THE ESTATE OF THE
DECEDENT WOULD HAVE BEEN REDUCED IF THE TAX HAD BEEN PAID BEFORE THE
DISTRIBUTION OF THE ESTATE OR WHOSE INTEREST IS SUBJECT TO EQUAL OR
PRIOR LIABILITY FOR THE PAYMENT OF TAXES, DEBTS, OR OTHER CHARGES
AGAINST THE ESTATE, IT BEING THE PURPOSE AND INTENT OF THIS SUBCHAPTER
THAT SO FAR AS IS PRACTICABLE AND UNLESS OTHERWISE DIRECTED BY THE WILL
OF THE DECEDENT THE TAX SHALL BE PAID OUT OF THE ESTATE BEFORE ITS
DISTRIBUTION. 

FN10  THIS SECTION WAS FIRST ADOPTED IN SEC. 408 OF THE 1918 ACT, 40
STAT. 1057.  SEE H. REP. NO. 767, 65TH CONG., 2D SESS. 

FN11  THIS SECTION WAS ADDED BY SEC. 403(C) OF THE REVENUE ACT OF
1942, APPROVED OCTOBER 21, 1942.  SEE H. REP. NO. 2333, 77TH CONG., 2D
SESS., P. 161. 

FN12  THIS ARGUMENT WAS ACCEPTED IN BEMIS V. CONVERSE, 246 MASS. 131,
140 N.E. 686, AND FARMERS' LOAN & TRUST CO. V. WINTHROP, 238 N.Y. 488,
144 N.E. 769. 
..END :





















HELVERING V. OHIO LEATHER CO., 317 U.S. 102 


NO. 40.  ARGUED OCTOBER 21, 1942.  - DECIDED NOVEMBER 9, 1942.  - 124
F.2D 360, 397, REVERSED. 


1.  A CORPORATION CLAIMING A CREDIT UNDER SEC. 26(C)(2) OF THE REVENUE
ACT OF 1936, IN THE COMPUTATION OF THE TAX IMPOSED BY THAT ACT ON
UNDISTRIBUTED PROFITS, HAS THE BURDEN OF SHOWING COMPLIANCE WITH THE
EXACT TERMS OF THE SECTION.  P. 106. 

2.  THE OBLIGATION OF THE TAXPAYER'S CONTRACT IN EACH OF THESE CASES,
TO PAY A SPECIFIED PORTION OF THE EARNINGS OF THE TAXABLE YEAR UPON
INDEBTEDNESS, WAS ONLY THAT PAYMENT SHOULD BE MADE ON OR BEFORE A
CERTAIN DATE SUBSEQUENT TO THE CLOSE OF THE TAXABLE YEAR; AND A CREDIT
IN COMPUTING THE TAX ON UNDISTRIBUTED PROFITS WAS NOT ALLOWABLE UNDER
SEC. 26(C)(2) OF THE REVENUE ACT OF 1936, SINCE THE CONTRACT DID NOT
REQUIRE THE SPECIFIED PORTION OF EARNINGS "TO BE PAID WITHIN THE
TAXABLE YEAR" OR "TO BE IRREVOCABLY SET ASIDE WITHIN THE TAXABLE YEAR,"
WITHIN THE MEANING OF THE SECTION.  P. 107. 

3.  THAT A TAXPAYER WITH SUCH A CONTRACT MIGHT BE CONSTRAINED BY
PRUDENT BUSINESS JUDGMENT OR BY THE POSSIBILITY OF FIDUCIARY LIABILITY
TO REFRAIN FROM USING THE PORTION OF EARNINGS INVOLVED OR ACTUALLY TO
SET IT ASIDE, IS IMMATERIAL.  NOR IS IT MATERIAL THAT ANTICIPATORY
PAYMENTS WERE IN FACT MADE WITHIN THE TAXABLE YEAR.  P. 107. 

4.  SECTION 43 OF THE REVENUE ACT OF 1936 IS INAPPLICABLE HERE, SINCE
THE QUESTION IS NOT WHETHER THE TAXPAYERS MADE PAYMENT, EITHER ON A
CASH OR ON AN ACCRUAL BASIS, WITHIN THE TAXABLE YEAR, BUT WHETHER THEIR
CONTRACTS REQUIRED THEM TO PAY OR TO "IRREVOCABLY SET ASIDE" WITHIN THE
TAXABLE YEAR.  P. 108. 

5.  THAT THE INTERPRETATION OF A TAX DEDUCTION STATUTE IN ACCORDANCE
WITH ITS PLAIN MEANING PRODUCES HARSH RESULTS IS A MATTER FOR CONGRESS
AND NOT THE COURTS.  P. 110. 

6.  THE LEGISLATIVE HISTORY OF SEC. 26(C)(2) DOES NOT SUPPORT THE
CONTENTION THAT THE SECTION EMBRACES THE CONTRACTS INVOLVED HERE.  P.
110. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. OHIO LEATHER CO.* 

*TOGETHER WITH NO. 41, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. STRONG MFG. CO., AND NO. 42, HELVERING, COMMISSIONER OF INTERNAL
REVENUE, V. WARREN TOOL CORP., ALSO ON WRITS OF CERTIORARI, 316 U.S.
651, TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 316 U.S. 651, TO REVIEW THE AFFIRMANCE OF DECISIONS OF
THE BOARD OF TAX APPEALS (NO. 41, 41 B.T.A. 1273) REDETERMINING TAX
DEFICIENCIES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IS WHETHER RESPONDENTS ARE ENTITLED TO CERTAIN CLAIMED
CREDITS AGAINST THEIR UNDISTRIBUTED PROFITS TAX FOR THE 1936 TAXABLE
YEAR  FN1  BY VIRTUE OF SEC. 26(C)(2) OF THE REVENUE ACT OF 1936, 49
STAT. 1648.  FN2 

IN EACH OF THESE CASES THE TAXPAYER CORPORATION CONTRACTED PRIOR TO
MAY 1, 1936, BY A WRITTEN AGREEMENT, TO APPLY A PERCENTAGE OF ITS NET
EARNINGS OF A PARTICULAR CALENDAR YEAR TO AN INDEBTEDNESS OF THE
CORPORATION; IN EACH CASE THE AGREEMENT EXPRESSLY PROVIDED ONLY THAT
THE PAYMENT OF THE SPECIFIED PERCENTAGE WAS TO BE MADE ON OR BEFORE A
CERTAIN DATE - APRIL 1 IN THE CASE OF THE OHIO LEATHER COMPANY AND
WARREN TOOL CORPORATION, AND APRIL 15 IN THE CASE OF THE STRONG
MANUFACTURING COMPANY - IN THE YEAR FOLLOWING THE CALENDAR YEAR DURING
WHICH THE NET EARNINGS AROSE.  FN3  HOWEVER, THE SPECIFIED PERCENTAGE
WAS ACTUALLY PAID DURING THE TAXABLE YEAR IN EACH CASE.  BY REASON OF
THESE CONTRACTS AND PAYMENTS, TAXPAYERS HAVE SOUGHT TO AVAIL THEMSELVES
OF THE CREDIT AUTHORIZED BY SEC. 26(C)(2), WHICH RELIEVES FROM THE TAX
ON UNDISTRIBUTED PROFITS, IMPOSED BY SEC. 14 OF THE 1936 ACT, ANY
PROFITS WHICH MAY NOT BE DISTRIBUTED BECAUSE OF A CONTRACT REQUIRING
THAT A PORTION OF EARNINGS OF THE TAXABLE YEAR BE PAID OR IRREVOCABLY
SET ASIDE WITHIN THE TAXABLE YEAR FOR THE DISCHARGE OF A DEBT.  THE
COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THE CREDITS CLAIMED
SHOULD NOT BE ALLOWED, AND ASSESSED DEFICIENCIES IN EACH CASE.  THE
BOARD OF TAX APPEALS OVERRULED THE COMMISSIONER, AND THE CIRCUIT COURT
OF APPEALS AFFIRMED.  FN4  WE GRANTED CERTIORARI BECAUSE OF AN ASSERTED
CONFLICT WITH ANTIETAM HOTEL CORP. V. COMMISSIONER, 123 F.2D 274.  FN5 

SINCE SEC. 26(C)(2) GRANTS A SPECIAL CREDIT IN THE NATURE OF A
DEDUCTION, THE TAXPAYER MUST SUSTAIN THE BURDEN OF SHOWING COMPLIANCE
WITH ITS EXACT TERMS.  HELVERING V. NORTHWEST STEEL MILLS, 311 U.S. 46,
49; WHITE V. UNITED STATES, 305 U.S. 281, 292; NEW COLONIAL ICE CO. V.
HELVERING, 292 U.S. 435, 440.  WE AGREE WITH THE COMMISSIONER THAT
TAXPAYERS HAVE NOT CARRIED THAT BURDEN. 

PRECEDENT WITH WHICH A CORPORATION DEVOTING PART OF ITS EARNINGS TO THE
PAYMENT OF DEBTS RATHER THAN THE PAYMENT OF DIVIDENDS MUST COMPLY
BEFORE IT IS ENTITLED TO RELIEF FROM THE TAX ON UNDISTRIBUTED PROFITS -
(1) THERE MUST BE A WRITTEN CONTRACT EXECUTED BY THE CORPORATION PRIOR
TO MAY 1, 1936; (2) THIS CONTRACT MUST CONTAIN A PROVISION EXPRESSLY
DEALING WITH THE DISPOSITION OF EARNINGS AND PROFITS OF THE TAXABLE
YEAR; AND (3) THIS CONTRACT MUST CONTAIN A PROVISION REQUIRING THAT A
PORTION OF SUCH EARNINGS AND PROFITS EITHER (A) "BE PAID WITHIN THE
TAXABLE YEAR IN DISCHARGE OF A DEBT," OR (B) "BE IRREVOCABLY SET ASIDE
WITHIN THE TAXABLE YEAR FOR THE DISCHARGE OF A DEBT."  A TAXPAYER WHOSE
CONTRACT SATISFIES EACH OF THESE THREE REQUIREMENTS IS ENTITLED TO A
CREDIT TO THE EXTENT OF THE AMOUNT WHICH HAS BEEN SO PAID OR
IRREVOCABLY SET ASIDE. 

WHILE TAXPAYERS HAVE MET THE FIRST TWO STATUTORY REQUIREMENTS - THE
WRITTEN CONTRACTS ANTEDATE MAY 1, 1936, AND CONTAIN PROVISIONS
EXPRESSLY DEALING WITH THE DISPOSITION OF EARNINGS FOR THE TAXABLE YEAR
-, THEY HAVE NOT MET THE THIRD ONE.  FN6  THE CONTRACTS CLEARLY CONTAIN
NO PROVISION REQUIRING THE PAYMENT OF EARNINGS "WITHIN THE TAXABLE YEAR
IN DISCHARGE OF A DEBT."  NOR DO THEY, CONTRARY TO TAXPAYERS'
ASSERTION, REQUIRE THE IRREVOCABLE SETTING ASIDE OF EARNINGS "WITHIN
THE TAXABLE YEAR FOR THE DISCHARGE OF A DEBT," WITHIN THE MEANING OF
SEC. 26(C)(2).  THE CONTRACTS ARE WHOLLY SILENT IN RESPECT OF ANY
SETTING ASIDE; THEY DO NOT IN TERMS REQUIRE TAXPAYERS TO SET ASIDE THE
AMOUNT DUE, NOR DO THEY DIRECT ANY SEGREGATION OR PHYSICAL RETENTION
WHATSOEVER.  THE ONLY REQUIREMENT IS THAT TAXPAYERS PAY ON OR BEFORE A
DATE AFTER THE CLOSE OF THE TAXABLE YEAR.  THIS IS NOT ENOUGH.  UNTIL
THAT DATE TAXPAYERS WERE FREE TO USE THE SPECIFIED PERCENTAGES AS THEY
PLEASED, SO FAR AS THE AGREEMENTS WERE CONCERNED.  THAT PRUDENT
BUSINESS JUDGMENT, OR THE POSSIBILITY OF FIDUCIARY LIABILITY IMPOSED BY
OPERATION OF LAW MIGHT HAVE CONSTRAINED TAXPAYERS TO REFRAIN FROM USING
THESE PERCENTAGES AND ACTUALLY TO SET THEM ASIDE IS IMMATERIAL; SUCH
SETTING ASIDE WAS NOT REQUIRED BY THE TERMS OF THE WRITTEN CONTRACTS,
AND THEREFORE DID NOT SATISFY SEC. 26(C)(2).  CF. HELVERING V.
NORTHWEST STEEL MILLS, 311 U.S. 46, 52.  LIKEWISE, THE FACT THAT
TAXPAYERS ACTUALLY IRREVOCABLY SET THE FUNDS ASIDE BY ANTICIPATORY
PAYMENTS WITHIN THE TAXABLE YEAR IS OF NO MOMENT, BECAUSE THESE
PAYMENTS WERE VOLUNTARY AND NOT PURSUANT TO THE COMMAND OF THE
AGREEMENTS. 

THAT CONGRESS DID NOT INTEND THAT THE STATUTORY CONDITION OF AN
IRREVOCABLE SETTING ASIDE WOULD BE SATISFIED BY A CONTRACT WHICH,
WITHOUT MORE, MERELY REQUIRES THAT A PERCENTAGE OF EARNINGS OF THE
TAXABLE YEAR BE PAID IN SOME FUTURE YEAR FOR THE DISCHARGE OF A DEBT,
IS EVIDENT, BECAUSE SUCH A CONSTRUCTION REDUCES THE ALTERNATIVE
CONDITION OF SEC. 26(C)(2), RELATING TO ACTUAL PAYMENT WITHIN THE
TAXABLE YEAR, TO A MEANINGLESS SUPERFLUITY.  THE DATE SPECIFIED FOR
PAYMENT WOULD BECOME IMMATERIAL FOR ALL PURPOSES IF THE MERE
REQUIREMENT BY CONTRACT OF FUTURE PAYMENT OUT OF EARNINGS IN A GIVEN
YEAR AUTOMATICALLY ENTAILS AN "IRREVOCABLE SETTING ASIDE" WITHIN THAT
YEAR. 

TAXPAYERS HERE PLACE GREAT EMPHASIS UPON THE DIFFERENT PREPOSITIONS
USED IN THE ALTERNATIVE PHRASES - "TO BE PAID WITHIN THE TAXABLE YEAR
IN DISCHARGE OF A DEBT, OR TO BE IRREVOCABLY SET ASIDE WITHIN THE
TAXABLE YEAR FOR THE DISCHARGE OF A DEBT" - TO SHOW THAT PAYMENT MAY BE
MADE AFTER THE TAXABLE YEAR COMPATIBLY WITH SEC. 26(C)(2).  TRUE
ENOUGH, PAYMENT CAN BE POSTPONED TO A FUTURE YEAR AND A CREDIT ALLOWED
IF, BUT ONLY IF, THE CONTRACT DIRECTING SUCH FUTURE PAYMENTS REQUIRES,
IN TERMS, THE IRREVOCABLE SETTING ASIDE WITHIN THE TAXABLE YEAR OF
THOSE FUTURE PAYMENTS.  THE INSTANT CONTRACTS DO NOT SO PROVIDE. 

RESPONDENTS, THE OHIO LEATHER COMPANY AND WARREN TOOL CORPORATION,
CONTEND THAT BECAUSE THEY WERE ON AN ACCRUAL BASIS OF ACCOUNTING, THEY
WERE ENTITLED TO THE CREDIT BY VIRTUE OF SEC. 43, FN7  WHICH STATES
THAT IT IS TO BE DISREGARDED IN COMPUTING THE CREDIT PROVIDED BY SEC.
27 AND MAKES NO STATEMENT WITH REGARD TO SEC. 26.  THE CONTENTION IS
WITHOUT MERIT BECAUSE PRINCIPLES OF ACCRUAL ACCOUNTING HAVE NO BEARING
ON THE QUESTION OF WHETHER A CONTRACT IN TERMS REQUIRES A PAYMENT OR AN
IRREVOCABLE SETTING ASIDE WITHIN THE TAXABLE YEAR.  THE QUESTION HERE
IS NOT WHETHER TAXPAYERS MADE PAYMENT, EITHER ON A CASH OR AN ACCRUAL
BASIS, WITHIN THE TAXABLE YEAR, BUT WHETHER THEIR CONTRACTS REQUIRED
THEM TO PAY OR IRREVOCABLY SET ASIDE WITHIN THE TAXABLE YEAR. 

TAXPAYERS INSIST THAT IT WOULD BE UNREASONABLE TO HOLD THAT ONLY
CONTRACTS EXPRESSLY REQUIRING PAYMENT OR AN IRREVOCABLE SETTING ASIDE
OF A PERCENTAGE OF EARNINGS WITHIN THE TAXABLE YEAR SATISFY SEC.
26(C)(2), BECAUSE MANY CORPORATIONS ARE UNABLE TO DETERMINE THEIR
EARNINGS UNTIL AFTER THE CLOSE OF THEIR FISCAL YEAR, AND CONSEQUENTLY
THEIR CONTRACTS DISPOSING OF A PERCENTAGE OF EARNINGS IN SATISFACTION
OF DEBT CUSTOMARILY ALLOW SOME SHORT PERIOD AFTER THE CLOSE OF THE
YEAR, BEFORE PAYMENT IS REQUIRED.  THE LEGISLATIVE HISTORY OF THE 1936
ACT REVEALS THAT CONGRESS WAS CONVERSANT WITH THE PROBLEM OF COMPUTING
EARNINGS BEFORE THE END OF THE TAXABLE YEAR, IN CONNECTION WITH
DIVIDEND PAYMENTS, BUT DECLINED TO ACT.  FN8  CORPORATIONS WITH ORAL
CONTRACTS, OR WRITTEN CONTRACTS EXECUTED AFTER MAY 1, 1936, DEALING
WITH THE DISPOSITION OF PROFITS IN SATISFACTION OF DEBTS, ALSO PROBABLY
THINK SEC. 26(C)(2) IS A MOST UNREASONABLE STATUTE.  BUT ARGUMENTS
URGING THE BROADENING OF A TAX DEDUCTION STATUTE BEYOND ITS PLAIN
MEANING TO AVOID HARSH RESULTS ARE MORE PROPERLY ADDRESSED TO CONGRESS
THAN TO THE COURTS.  WHITE V. UNITED STATES, 305 U.S. 281, 292.  FN9 

FINALLY, TAXPAYERS CONTEND THAT THE LEGISLATIVE HISTORY OF SEC.
26(C)(2) SUPPORTS THE VIEW THAT THEIR CONTRACTS ARE COVERED BY THAT
UNDISTRIBUTED PROFITS TAX DEMONSTRATES, CONTRARY TO TAXPAYERS'
CONTENTIONS, THAT CONGRESS INTENDED THE TAX TO BE IMPOSED PRIMARILY
UPON INCOME NOT DISTRIBUTED IN THE FORM OF DIVIDENDS, RATHER THAN ONLY
UPON CORPORATE INCOME WHICH WAS NOT DISTRIBUTED AT ALL, AND ACCORDINGLY
MEANT TO LIMIT SEVERELY CREDITS FOR A CORPORATION'S PAYMENT OF DEBTS
AND PRECISELY TO DEFINE THE AREA IN WHICH TAXPAYERS WERE TO BE ENTITLED
TO THE CREDIT.  THUS, WHILE THE ORIGINAL HOUSE BILL CONTAINED
COMPLICATED PROVISIONS AFFORDING SOME RELIEF TO CORPORATIONS WITH
DEFICITS, OR CONTRACTUALLY OBLIGATED EITHER TO PAY DEBTS OR NOT TO PAY
DIVIDENDS, THE SENATE FINANCE COMMITTEE STRUCK THEM ALL OUT,
SUBSTITUTING ONLY A PROVISION DEALING WITH A CREDIT FOR CONTRACTUAL
PROHIBITIONS AGAINST THE PAYMENT OF DIVIDENDS.  FN10  AN AMENDMENT
OFFERED FROM THE SENATE FLOOR, GIVING A BROAD CREDIT FOR ALL PORTIONS
OF ADJUSTED NET INCOME USED TO PURCHASE OR REPLACE MACHINERY,
EQUIPMENT, ETC., OR "EXPENDED OR APPLIED DURING THE TAXABLE YEAR FOR
THE LIQUIDATION, PAYMENT, OR REDUCTION OF THE PRINCIPAL OF ANY BONA
FIDE INDEBTEDNESS OUTSTANDING AT THE DATE OF ENACTMENT OF THIS ACT,"
WAS REJECTED.  FN11  THE MUCH NARROWER AMENDMENT WHICH BECAME SEC.
26(C)(2) WAS THEN OFFERED, WITH LITTLE EXPLANATION OTHER THAN THAT IT
WAS INTENDED TO SUPPLEMENT THE CREDIT FOR CONTRACTUAL PROHIBITION
AGAINST DIVIDEND PAYMENTS, THE PROVISION WHICH BECAME SEC. 26(C)(1). 
FN12 

WE CONCLUDE THAT THE JUDGMENTS BELOW WERE ERRONEOUS.  ACCORDINGLY
THEY ARE REVERSED, AND THE CAUSES REMANDED WITH DIRECTIONS TO UPHOLD
THE DETERMINATION OF THE COMMISSIONER.  REVERSED. 

FN1  TAXPAYER IN NO. 42 IS ALSO CLAIMING A CREDIT FOR THE 1937
TAXABLE YEAR. 

FN2  SEC. 26.  CREDITS OF CORPORATIONS. 

IN THE CASE OF A CORPORATION THE FOLLOWING CREDITS SHALL BE ALLOWED
TO THE EXTENT PROVIDED IN THE VARIOUS SECTIONS IMPOSING TAX - 

     .         . .         .         . 

(C)  CONTRACTS RESTRICTING PAYMENT OF DIVIDENDS.  - 

     .         .         .         .    . 

(2)  DISPOSITION OF PROFITS OF TAXABLE YEAR.  - AN AMOUNT EQUAL TO
THE PORTION OF THE EARNINGS AND PROFITS OF THE TAXABLE YEAR WHICH IS
REQUIRED (BY A PROVISION OF A WRITTEN CONTRACT EXECUTED BY THE
CORPORATION PRIOR TO MAY 1, 1936, WHICH PROVISION EXPRESSLY DEALS WITH
THE DISPOSITION OF EARNINGS AND PROFITS OF THE TAXABLE YEAR) TO BE PAID
WITHIN THE TAXABLE YEAR IN DISCHARGE OF A DEBT, OR TO BE IRREVOCABLY
SET ASIDE WITHIN THE TAXABLE YEAR FOR THE DISCHARGE OF A DEBT; TO THE
EXTENT THAT SUCH AMOUNT HAS BEEN SO PAID OR SET ASIDE.  FOR THE
PURPOSES OF THIS PARAGRAPH, A REQUIREMENT TO PAY OR SET ASIDE AN AMOUNT
EQUAL TO A PERCENTAGE OF EARNINGS AND PROFITS SHALL BE CONSIDERED A
REQUIREMENT TO PAY OR SET ASIDE SUCH PERCENTAGE OF EARNINGS AND
PROFITS.  AS USED IN THIS PARAGRAPH, THE WORD "DEBT" DOES NOT INCLUDE A
DEBT INCURRED AFTER APRIL 30, 1936. 

FN3  THE RELEVANT CONTRACTUAL PROVISIONS IN EACH CASE ARE AS FOLLOWS:

                             NO. 40 

BY AN INDENTURE ENTERED INTO ON APRIL 17, 1936, THE OHIO LEATHER
COMPANY COVENANTED TO PAY $25,000 ANNUALLY TO A TRUSTEE TO CREATE A
SINKING FUND FOR THE SECURITY OF ITS DEBENTURES, AND FURTHER COVENANTED
THAT IT WOULD "ON OR BEFORE THE NEXT SUCCEEDING FIRST DAY OF APRIL, PAY
AN AMOUNT EQUAL TO TEN PERCENT (10%) OF THE NET EARNINGS EARNED BY THE
COMPANY DURING THE FISCAL YEAR ENDING ON THE THIRTY-FIRST DAY OF THE
NEXT PRECEDING DECEMBER, AS SUCH NET EARNINGS ARE DEFINED HEREINAFTER
IN THE ARTICLE, WHICH SUMS AND AMOUNTS SHALL BE HELD BY THE TRUSTEE FOR
THE SECURITY OF ALL OUTSTANDING DEBENTURES UNTIL PAID OUT AS
HEREINAFTER PROVIDED." 

                            NO. 41 

BY A NOTE AND MORTGAGE AGREEMENT EXECUTED APRIL 15, 1932, THE STRONG
MANUFACTURING COMPANY BOUND ITSELF TO APPLY FORTY PER CENTUM OF ITS NET
EARNINGS UPON ITS UNPAID OBLIGATION.  THE MORTGAGE PROVIDED: 

"THE COMPANY COVENANTS AND AGREES THAT UNTIL THE PRINCIPAL AND
INTEREST OF THE NOTE HEREBY SECURED SHALL HAVE BEEN FULLY PAID AND
BEGINNING ON JANUARY 1ST, ONE THOUSAND NINE HUNDRED THIRTY-FOUR, THE
COMPANY WILL APPLY FORTY PER CENTUM (40%) PER ANNUM OF ITS NET EARNINGS
FOR ANY CALENDAR YEAR IN PAYMENT OF THE INTEREST ACCRUING AND BECOMING
PAYABLE UPON SUCH NOTE IN SUCH YEAR, AND THE BALANCE OF THE PRINCIPAL
AMOUNT OF SUCH NOTE UNPAID PRIOR TO APRIL 15TH IN SUCH YEAR; PROVIDED,
HOWEVER, THAT THE COVENANT HEREIN MADE SHALL NOT BE CONSTRUED TO
RELIEVE THE COMPANY FROM THE PAYMENT ON APRIL 15TH IN SUCH YEAR OF THE
INSTALLMENT SPECIFIED FOR PAYMENT BY THE TERMS OF SAID NOTE NOR OF THE
REGULAR INTEREST PAYMENTS IN SUCH YEAR, LIKEWISE AS SPECIFIED IN SAID
NOTE.           .         .         .         .         . 

"SETTLEMENT FOR ALL AMOUNTS BECOMING PAYABLE UNDER THIS PROVISION IN
EXCESS OF THE PRINCIPAL AND INTEREST PAYMENTS ABSOLUTELY REQUIRED IN
THE CALENDAR YEAR AS OF WHICH SUCH NET EARNINGS ARE DETERMINED SHALL BE
MADE BY THE COMPANY TO THE BANK NOT LATER THAN APRIL 15TH OF THE
SUCCEEDING YEAR."         NO. 42 

ON NOVEMBER 1, 1932, THE WARREN TOOL CORPORATION EXECUTED A FIRST
MORTGAGE AND DEED OF TRUST TO SECURE A BOND ISSUE.  THE MORTGAGE
CONTAINED A SINKING FUND PROVISION WHICH REQUIRED THE CORPORATION, ON
AND AFTER APRIL 1, 1935, TO PAY TO THE TRUSTEE "ON OR BEFORE THE 1ST
DAY OF APRIL OF EACH YEAR THEREAFTER TO AND INCLUDING APRIL 1, 1942, A
SUM OF MONEY EQUAL TO TWENTY-FIVE PER CENT (25%) OF ITS NET EARNINGS
FOR THE CALENDAR YEAR NEXT PRECEDING." 

FN4  AN OPINION WAS WRITTEN ONLY IN COMMISSIONER V. STRONG MFG. CO.,
124 F.2D 360.  THE OTHER TWO CASES WERE PER CURIAM AFFIRMANCES ON THE
AUTHORITY OF THAT OPINION.  124 F.2D 397. 

FN5  COMPARE HELVERING V. MOLONEY ELECTRIC CO., 120 F.2D 617, 621. 

FN6  THIS HOLDING MAKES IT UNNECESSARY TO CONSIDER THE COMMISSIONER'S
CONTENTION THAT THE STRONG MANUFACTURING COMPANY DID NOT MEET THE
SECOND REQUIREMENT AS TO $5,000 OF THE $46,500 PAID IN 1936, BECAUSE IT
WAS OBLIGATED TO PAY THAT SUM BY APRIL 15, 1937, EVEN IN THE EVENT THAT
THERE WERE NO EARNINGS IN 1936. 

FN7  "SEC.  43.  PERIOD FOR WHICH DEDUCTIONS AND CREDITS TAKEN. 

"THE DEDUCTIONS AND CREDITS (OTHER THAN THE DIVIDENDS PAID CREDIT
PROVIDED IN SECTION 27) PROVIDED FOR IN THIS TITLE SHALL BE TAKEN FOR
THE TAXABLE YEAR IN WHICH 'PAID OR ACCRUED' OR 'PAID OR INCURRED,'
DEPENDENT UPON THE METHOD OF ACCOUNTING UPON THE BASIS OF WHICH THE NET
INCOME IS COMPUTED,  ..." 

FN8  THE ORIGINAL HOUSE BILL (H.R. 12395, 74TH CONG., 2D SESS.,
INTRODUCED AT 80 CONG. REC. 5978) PROVIDED FOR THE USE OF THE "DIVIDEND
YEAR" IN COMPUTING UNDISTRIBUTED NET INCOME UNDER SEC. 13 AND DIVIDEND
CREDIT UNDER SEC. 15.  SECTION 27 DEFINED "DIVIDEND YEAR" AS THE PERIOD
BEGINNING ON THE 15TH DAY OF THE THIRD MONTH AFTER THE DAY BEFORE THE
BEGINNING OF THE TAXABLE YEAR, AND ENDING ON THE 14TH DAY OF THE THIRD
MONTH AFTER THE CLOSE OF THE TAXABLE YEAR.  THUS, WHERE THE CALENDAR
YEAR AND THE TAXABLE YEAR COINCIDED, THE "DIVIDEND YEAR" WOULD COVER
THE PERIOD FROM MARCH 15 OF THE TAXABLE YEAR TO MARCH 14 OF THE
FOLLOWING YEAR.  CONGRESSMAN HILL, CHAIRMAN OF THE SUBCOMMITTEE OF THE
HOUSE WAYS AND MEANS COMMITTEE, EXPLAINED THAT THE "DIVIDEND YEAR" WAS
DESIGNED TO ALLOW CORPORATIONS TIME TO CAST UP THEIR ACCOUNTS AFTER THE
CLOSE OF THE TAXABLE YEAR AND THEN DETERMINE WHAT DIVIDENDS SHOULD BE
DISTRIBUTED.  80 CONG. REC. 6005.  NEVERTHELESS, CONGRESSMAN HILL LATER
OFFERED, AND THE HOUSE ADOPTED, A COMMITTEE AMENDMENT SUBSTITUTING THE
"TAXABLE YEAR" FOR THE "DIVIDEND YEAR."  80 CONG. REC. 6308.  SEE ALSO
80 CONG. REC. 10265. 

FN9  APPEALS TO CONGRESS BECAUSE OF THE LIMITED SCOPE OF SEC.
26(C)(2) WERE SUCCESSFUL IN 1938.  SECTION 27(A)(4) OF THE REVENUE ACT
OF 1938 ALLOWS A CREDIT WITHOUT REFERENCE TO THE PARTICULAR TERMS OR
REQUIREMENTS OF THE INDEBTEDNESS.  SEE H. REP. NO. 1860, 75TH CONG., 3D
SESS., P. 4. 

FN10  THIS LEGISLATIVE HISTORY IS DISCUSSED IN HELVERING V. NORTHWEST
STEEL MILLS, 311 U.S. 46, 50. 

FN11  80 CONG. REC. 9055, 9070, 74TH CONG., 2D SESS. 

FN12  80 CONG. REC. 9071, 74TH CONG., 2D SESS.
..END :





















WICKARD V. FILBURN, 317 U.S. 111 


NO. 59.  ARGUED MAY 4, 1942.  REARGUED OCTOBER 13, 1942.  - DECIDED
NOVEMBER 9, 1942.  - 43 F.SUPP.  1017, REVERSED. 


1.  PENDING A REFERENDUM VOTE OF FARMERS UPON WHEAT QUOTAS PROCLAIMED
BY THE SECRETARY OF AGRICULTURE UNDER THE AGRICULTURAL ADJUSTMENT ACT
OF 1938, THE SECRETARY MADE A RADIO ADDRESS IN WHICH HE ADVOCATED
APPROVAL OF THE QUOTAS AND CALLED ATTENTION TO THE RECENT ENACTMENT BY
CONGRESS OF THE AMENDATORY ACT, LATER APPROVED MAY 26, 1941.  THE
SPEECH MENTIONED THE PROVISIONS OF THE AMENDMENT FOR INCREASE OF LOANS
ON WHEAT BUT NOT THE FACT THAT IT ALSO INCREASED THE PENALTY ON EXCESS
PRODUCTION, AND ADDED THAT BECAUSE OF THE UNCERTAIN WORLD SITUATION
EXTRA ACREAGES OF WHEAT HAD BEEN DELIBERATELY PLANTED AND "FARMERS
SHOULD NOT BE PENALIZED BECAUSE THEY HAVE PROVIDED INSURANCE AGAINST
SHORTAGES OF FOOD."  THERE WAS NO EVIDENCE THAT THE SUBSEQUENT
REFERENDUM VOTE APPROVING THE QUOTAS WAS INFLUENCED BY THE SPEECH. 
HELD, THAT, IN ANY EVENT AND EVEN ASSUMING THAT THE PENALTIES REFERRED
TO IN THE SPEECH WERE THOSE PRESCRIBED BY THE ACT, THE VALIDITY OF THE
VOTE WAS NOT THEREBY AFFECTED.  P. 117. 

2.  THE WHEAT MARKETING QUOTA AND ATTENDANT PENALTY PROVISIONS OF THE
AGRICULTURAL ADJUSTMENT ACT OF 1938, AS AMENDED BY THE ACT OF MAY 26,
1941, WHEN APPLIED TO WHEAT NOT INTENDED IN ANY PART FOR COMMERCE BUT
WHOLLY FOR CONSUMPTION ON THE FARM ARE WITHIN THE COMMERCE POWER OF
CONGRESS.  P. 118. 

3.  THE EFFECT OF THE ACT IS TO RESTRICT THE AMOUNT OF WHEAT WHICH
MAY BE PRODUCED FOR MARKET AND THE EXTENT AS WELL TO WHICH ONE MAY
FORESTALL RESORT TO THE MARKET BY PRODUCING FOR HIS OWN NEEDS.  P.
127. 

4.  THAT THE PRODUCTION OF WHEAT FOR CONSUMPTION ON THE FARM MAY BE
TRIVIAL IN THE PARTICULAR CASE IS NOT ENOUGH TO REMOVE THE GROWER FROM
THE SCOPE OF FEDERAL REGULATION, WHERE HIS CONTRIBUTION, TAKEN WITH
THAT OF MANY OTHERS SIMILARLY SITUATED, IS FAR FROM TRIVIAL.  P. 127. 

5.  THE POWER TO REGULATE INTERSTATE COMMERCE INCLUDES THE POWER TO
REGULATE THE PRICES AT WHICH COMMODITIES IN THAT COMMERCE ARE DEALT IN
AND PRACTICES AFFECTING SUCH PRICES.  P. 128. 

6.  A FACTOR OF SUCH VOLUME AND VARIABILITY AS WHEAT GROWN FOR HOME
CONSUMPTION WOULD HAVE A SUBSTANTIAL INFLUENCE ON PRICE CONDITIONS ON
THE WHEAT MARKET, BOTH BECAUSE SUCH WHEAT, WITH RISING PRICES, MAY FLOW
INTO THE MARKET AND CHECK PRICE INCREASES AND, BECAUSE, THOUGH NEVER
MARKETED, IT SUPPLIES THE NEED OF THE GROWER WHICH WOULD OTHERWISE BE
SATISFIED BY HIS PURCHASES IN THE OPEN MARKET.  P. 128. 

7.  THE AMENDATORY ACT OF MAY 26, 1941, WHICH INCREASED THE PENALTY
UPON "FARM MARKETING EXCESS" AND INCLUDED IN THAT CATEGORY WHEAT WHICH
PREVIOUSLY HAD NOT BEEN SUBJECT TO PENALTY, HELD NOT INVALID AS
RETROACTIVE LEGISLATION REPUGNANT TO THE FIFTH AMENDMENT WHEN APPLIED
TO WHEAT PLANTED AND GROWING BEFORE IT WAS ENACTED BUT HARVESTED AND
THRESHED THEREAFTER.  P. 131. 

WICKARD, SECRETARY OF AGRICULTURE, ET AL. V. FILBURN. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF OHIO. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH
PERMANENTLY ENJOINED THE SECRETARY OF AGRICULTURE AND OTHER APPELLANTS
FROM ENFORCING CERTAIN PENALTIES AGAINST THE APPELLEE, A FARMER, UNDER
THE AGRICULTURAL ADJUSTMENT ACT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE APPELLEE FILED HIS COMPLAINT AGAINST THE SECRETARY OF AGRICULTURE
OF THE UNITED STATES, THREE MEMBERS OF THE COUNTY AGRICULTURAL
CONSERVATION COMMITTEE FOR MONTGOMERY COUNTY, OHIO, AND A MEMBER OF THE
STATE AGRICULTURAL CONSERVATION COMMITTEE FOR OHIO.  HE SOUGHT TO
ENJOIN ENFORCEMENT AGAINST HIMSELF OF THE MARKETING PENALTY IMPOSED BY
THE AMENDMENT OF MAY 26, 1941,  FN1  TO THE AGRICULTURAL ADJUSTMENT ACT
OF 1938,  FN2  UPON THAT PART OF HIS 1941 WHEAT CROP WHICH WAS
AVAILABLE FOR MARKETING IN EXCESS OF THE MARKETING QUOTA ESTABLISHED
FOR HIS FARM.  HE ALSO SOUGHT A DECLARATORY JUDGMENT THAT THE WHEAT
MARKETING QUOTA PROVISIONS OF THE ACT AS AMENDED AND APPLICABLE TO HIM
WERE UNCONSTITUTIONAL BECAUSE NOT SUSTAINABLE UNDER THE COMMERCE CLAUSE
OR CONSISTENT WITH THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

THE SECRETARY MOVED TO DISMISS THE ACTION AGAINST HIM FOR IMPROPER
VENUE, BUT LATER WAIVED HIS OBJECTION AND FILED AN ANSWER.  THE OTHER
APPELLANTS MOVED TO DISMISS ON THE GROUND THAT THEY HAD NO POWER OR
AUTHORITY TO ENFORCE THE WHEAT MARKETING QUOTA PROVISIONS OF THE ACT,
AND AFTER THEIR MOTION WAS DENIED THEY ANSWERED, RESERVING EXCEPTIONS
TO THE RULING ON THEIR MOTION TO DISMISS N3.  THE CASE WAS SUBMITTED
FOR DECISION ON THE PLEADINGS AND UPON A STIPULATION OF FACTS. 

THE APPELLEE FOR MANY YEARS PAST HAS OWNED AND OPERATED A SMALL FARM
IN MONTGOMERY COUNTY, OHIO, MAINTAINING A HERD OF DAIRY CATTLE, SELLING
MILK, RAISING POULTRY, AND SELLING POULTRY AND EGGS.  IT HAS BEEN HIS
PRACTICE TO RAISE A SMALL ACREAGE OF WINTER WHEAT, SOWN IN THE FALL AND
HARVESTED IN THE FOLLOWING JULY; TO SELL A PORTION OF THE CROP; TO FEED
PART TO POULTRY AND LIVESTOCK ON THE FARM, SOME OF WHICH IS SOLD; TO
USE SOME IN MAKING FLOUR FOR HOME CONSUMPTION; AND TO KEEP THE REST FOR
THE FOLLOWING SEEDING.  THE INTENDED DISPOSITION OF THE CROP HERE
INVOLVED HAS NOT BEEN EXPRESSLY STATED. 

IN JULY OF 1940, PURSUANT TO THE AGRICULTURAL ADJUSTMENT ACT OF 1938,
AS THEN AMENDED, THERE WERE ESTABLISHED FOR THE APPELLEE'S 1941 CROP A
WHEAT ACREAGE ALLOTMENT OF 11.1 ACRES AND A NORMAL YIELD OF 20.1
BUSHELS OF WHEAT AN ACRE.  HE WAS GIVEN NOTICE OF SUCH ALLOTMENT IN
JULY OF 1940, BEFORE THE FALL PLANTING OF HIS 1941 CROP OF WHEAT, AND
AGAIN IN JULY OF 1941, BEFORE IT WAS HARVESTED.  HE SOWED, HOWEVER, 23
ACRES, AND HARVESTED FROM HIS 11.9 ACRES OF EXCESS ACREAGE 239 BUSHELS,
WHICH UNDER THE TERMS OF THE ACT AS AMENDED ON MAY 26, 1941,
CONSTITUTED FARM MARKETING EXCESS, SUBJECT TO A PENALTY OF 49 CENTS A
BUSHEL, OR $117.11 IN ALL.  THE APPELLEE HAS NOT PAID THE PENALTY AND
HE HAS NOT POSTPONED OR AVOIDED IT BY STORING THE EXCESS UNDER
REGULATIONS OF THE SECRETARY OF AGRICULTURE, OR BY DELIVERING IT UP TO
THE SECRETARY.  THE COMMITTEE, THEREFORE, REFUSED HIM A MARKETING CARD,
WHICH WAS, UNDER THE TERMS OF REGULATIONS PROMULGATED BY THE SECRETARY,
NECESSARY TO PROTECT A BUYER FROM LIABILITY TO THE PENALTY AND UPON ITS
PROTECTING LIEN.  FN4 

THE GENERAL SCHEME OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938 AS
RELATED TO WHEAT IS TO CONTROL THE VOLUME MOVING IN INTERSTATE AND
FOREIGN COMMERCE IN ORDER TO AVOID SURPLUSES AND SHORTAGES AND THE
CONSEQUENT ABNORMALLY LOW OR HIGH WHEAT PRICES AND OBSTRUCTIONS TO
COMMERCE.  FN5  WITHIN PRESCRIBED LIMITS AND BY PRESCRIBED STANDARDS
THE SECRETARY OF AGRICULTURE IS DIRECTED TO ASCERTAIN AND PROCLAIM EACH
YEAR A NATIONAL ACREAGE ALLOTMENT FOR THE NEXT CROP OF WHEAT, WHICH IS
THEN APPORTIONED TO THE STATES AND THEIR COUNTIES, AND IS EVENTUALLY
BROKEN UP INTO ALLOTMENTS FOR INDIVIDUAL FARMS.  FN6  LOANS AND
PAYMENTS TO WHEAT FARMERS ARE AUTHORIZED IN STATED CIRCUMSTANCES.  FN7 

THE ACT FURTHER PROVIDES THAT WHENEVER IT APPEARS THAT THE TOTAL
SUPPLY OF WHEAT AS OF THE BEGINNING OF ANY MARKETING YEAR, BEGINNING
JULY 1, WILL EXCEED A NORMAL YEAR'S DOMESTIC CONSUMPTION AND EXPORT BY
MORE THAN 35 PER CENT, THE SECRETARY SHALL SO PROCLAIM NOT LATER THAN
MAY 15 PRIOR TO THE BEGINNING OF SUCH MARKETING YEAR; AND THAT DURING
THE MARKETING YEAR A COMPULSORY NATIONAL MARKETING QUOTA SHALL BE IN
EFFECT WITH RESPECT TO THE MARKETING OF WHEAT.  FN8  BETWEEN THE
ISSUANCE OF THE PROCLAMATION AND JUNE 10, THE SECRETARY MUST, HOWEVER,
CONDUCT A REFERENDUM OF FARMERS WHO WILL BE SUBJECT TO THE QUOTA, TO
DETERMINE WHETHER THEY FAVOR OR OPPOSE IT; AND, IF MORE THAN ONE-THIRD
OF THE FARMERS VOTING IN THE REFERENDUM DO OPPOSE, THE SECRETARY MUST,
PRIOR TO THE EFFECTIVE DATE OF THE QUOTA, BY PROCLAMATION SUSPEND ITS
OPERATION.  FN9 

ON MAY 19, 1941, THE SECRETARY OF AGRICULTURE MADE A RADIO ADDRESS TO
THE WHEAT FARMERS OF THE UNITED STATES IN WHICH HE ADVOCATED APPROVAL
OF THE QUOTAS AND CALLED ATTENTION TO THE PENDENCY OF THE AMENDMENT OF
MAY 26, 1941, WHICH HAD AT THE TIME BEEN SENT BY CONGRESS TO THE WHITE
HOUSE, AND POINTED OUT ITS PROVISION FOR AN INCREASE IN THE LOANS ON
WHEAT TO 85 PER CENT OF PARITY.  HE MADE NO MENTION OF THE FACT THAT IT
ALSO INCREASED THE PENALTY FROM 15 CENTS A BUSHEL TO ONE-HALF OF THE
PARITY LOAN RATE OF ABOUT 98 CENTS, BUT STATED THAT "BECAUSE OF THE
UNCERTAIN WORLD SITUATION, WE DELIBERATELY PLANTED SEVERAL MILLION
EXTRA ACRES OF WHEAT.  ...  FARMERS SHOULD NOT BE PENALIZED BECAUSE
THEY HAVE PROVIDED INSURANCE AGAINST SHORTAGES OF FOOD." 

PURSUANT TO THE ACT, THE REFERENDUM OF WHEAT GROWERS WAS HELD ON MAY
31, 1941.  ACCORDING TO THE REQUIRED PUBLISHED STATEMENT OF THE
SECRETARY OF AGRICULTURE, 81 PER CENT OF THOSE VOTING FAVORED THE
MARKETING QUOTA, WITH 19 PER CENT OPPOSED. 

THE COURT BELOW HELD, WITH ONE JUDGE DISSENTING, THAT THE SPEECH OF
THE SECRETARY INVALIDATED THE REFERENDUM; AND THAT THE AMENDMENT OF MAY
26, 1941, "IN SO FAR AS IT INCREASED THE PENALTY FOR THE FARM MARKETING
EXCESS OVER THE FIFTEEN CENTS PER BUSHEL PREVAILING AT THE TIME OF
PLANTING AND SUBJECTED THE ENTIRE CROP TO A LIEN FOR THE PAYMENT
THEREOF," SHOULD NOT BE APPLIED TO THE APPELLEE BECAUSE AS SO APPLIED
IT WAS RETROACTIVE AND IN VIOLATION OF THE FIFTH AMENDMENT; AND,
ALTERNATIVELY, BECAUSE THE EQUITIES OF THE CASE SO REQUIRED.  43
F.SUPP.  1017.  ITS JUDGMENT PERMANENTLY ENJOINED APPELLANTS FROM
COLLECTING A MARKETING PENALTY OF MORE THAN 15 CENTS A BUSHEL ON THE
FARM MARKETING EXCESS OF APPELLEE'S 1941 WHEAT CROP, FROM SUBJECTING
APPELLEE'S ENTIRE 1941 CROP TO A LIEN FOR THE PAYMENT OF THE PENALTY,
AND FROM COLLECTING A 15-CENT PENALTY EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SEC. 339 OF THE ACT AS THAT SECTION STOOD PRIOR TO THE
AMENDMENT OF MAY 26, 1941.  FN10  THE SECRETARY AND HIS CO-DEFENDANTS
HAVE APPEALED.  FN11

I 

THE HOLDING OF THE COURT BELOW THAT THE SECRETARY'S SPEECH
INVALIDATED THE REFERENDUM IS MANIFEST ERROR.  READ AS A WHOLE AND IN
THE CONTEXT OF WORLD EVENTS THAT CONSTITUTED HIS PRINCIPAL THEME, THE
PENALTIES OF WHICH HE SPOKE WERE MORE LIKELY THOSE IN THE FORM OF
RUINOUSLY LOW PRICES RESULTING FROM THE EXCESS SUPPLY RATHER THAN THE
PENALTIES PRESCRIBED IN THE ACT.  BUT UNDER ANY INTERPRETATION THE
SPEECH CANNOT BE GIVEN THE EFFECT OF INVALIDATING THE REFERENDUM. 
THERE IS NO EVIDENCE THAT ANY VOTER PUT UPON THE SECRETARY'S WORDS THE
INTERPRETATION THAT IMPRESSED THE COURT BELOW OR WAS IN ANY WAY
MISLED.  THERE IS NO SHOWING THAT THE SPEECH INFLUENCED THE OUTCOME OF
THE REFERENDUM.  THE RECORD IN FACT DOES NOT SHOW THAT ANY, AND DOES
NOT SUGGEST A BASIS FOR EVEN A GUESS AS TO HOW MANY, OF THE VOTING
FARMERS DROPPED WORK TO LISTEN TO "WHEAT FARMERS AND THE BATTLE FOR
DEMOCRACY" AT 11:30 IN THE MORNING OF MAY 19TH, WHICH WAS A BUSY HOUR
IN ONE OF THE BUSIEST OF SEASONS.  IF THIS DISCOURSE INTENDED REFERENCE
TO THIS LEGISLATION AT ALL, IT WAS OF COURSE A PUBLIC ACT, WHOSE TERMS
WERE READILY AVAILABLE, AND THE SPEECH DID NOT PURPORT TO BE AN
EXPOSITION OF ITS PROVISIONS. 

TO HOLD THAT A SPEECH BY A CABINET OFFICER, WHICH FAILED TO MEET
JUDICIAL IDEALS OF CLARITY, PRECISION, AND EXHAUSTIVENESS, MAY DEFEAT A
POLICY EMBODIED IN AN ACT OF CONGRESS, WOULD INVEST COMMUNICATION
BETWEEN ADMINISTRATORS AND THE PEOPLE WITH PERILS HERETOFORE
UNSUSPECTED.  MOREOVER, WE SHOULD HAVE TO CONCLUDE THAT SUCH AN OFFICER
IS ABLE TO DO BY ACCIDENT WHAT HE HAS NO POWER TO DO BY DESIGN. 
APPELLEE'S COMPLAINT, IN SO FAR AS IT IS BASED ON THIS SPEECH, IS
FRIVOLOUS, AND THE INJUNCTION, IN SO FAR AS IT RESTS ON THIS GROUND, IS
UNWARRANTED.  UNITED STATES V. ROCK ROYAL CO-OPERATIVE, 307 U.S. 533. 

                 II 

IT IS URGED THAT UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION,
ARTICLE I, SEC. 8, CLAUSE 3, CONGRESS DOES NOT POSSESS THE POWER IT HAS
IN THIS INSTANCE SOUGHT TO EXERCISE.  THE QUESTION WOULD MERIT LITTLE
CONSIDERATION SINCE OUR DECISION IN UNITED STATES V. DARBY, 312 U.S.
100,  FN12 SUSTAINING THE FEDERAL POWER TO REGULATE PRODUCTION OF GOODS
FOR COMMERCE, EXCEPT FOR THE FACT THAT THIS ACT EXTENDS FEDERAL
REGULATION TO PRODUCTION NOT INTENDED IN ANY PART FOR COMMERCE BUT
WHOLLY FOR CONSUMPTION ON THE FARM.  THE ACT INCLUDES A DEFINITION OF
"MARKET" AND ITS DERIVATIVES, SO THAT AS RELATED TO WHEAT, IN ADDITION
TO ITS CONVENTIONAL MEANING, IT ALSO MEANS TO DISPOSE OF "BY FEEDING
(IN ANY FORM) TO POULTRY OR LIVESTOCK WHICH, OR THE PRODUCTS OF WHICH,
ARE SOLD, BARTERED, OR EXCHANGED, OR TO BE SO DISPOSED OF."  FN13
HENCE, MARKETING QUOTAS NOT ONLY EMBRACE ALL THAT MAY BE SOLD WITHOUT
PENALTY BUT ALSO WHAT MAY BE CONSUMED ON THE PREMISES.  WHEAT PRODUCED
ON EXCESS ACREAGE IS DESIGNATED AS "AVAILABLE FOR MARKETING" AS SO
DEFINED, AND THE PENALTY IS IMPOSED THEREON.  FN14  PENALTIES DO NOT
DEPEND UPON WHETHER ANY PART OF THE WHEAT, EITHER WITHIN OR WITHOUT THE
QUOTA, IS SOLD OR INTENDED TO BE SOLD.  THE SUM OF THIS IS THAT THE
FEDERAL GOVERNMENT FIXES A QUOTA INCLUDING ALL THAT THE FARMER MAY
HARVEST FOR SALE OR FOR HIS OWN FARM NEEDS, AND DECLARES THAT WHEAT
PRODUCED ON EXCESS ACREAGE MAY NEITHER BE DISPOSED OF NOR USED EXCEPT
UPON PAYMENT OF THE PENALTY, OR EXCEPT IT IS STORED AS REQUIRED BY THE
ACT OR DELIVERED TO THE SECRETARY OF AGRICULTURE. 

APPELLEE SAYS THAT THIS IS A REGULATION OF PRODUCTION AND CONSUMPTION
OF WHEAT.  SUCH ACTIVITIES ARE, HE URGES, BEYOND THE REACH OF
CONGRESSIONAL POWER UNDER THE COMMERCE CLAUSE, SINCE THEY ARE LOCAL IN
CHARACTER, AND THEIR EFFECTS UPON INTERSTATE COMMERCE ARE AT MOST
"INDIRECT."  IN ANSWER THE GOVERNMENT ARGUES THAT THE STATUTE REGULATES
NEITHER PRODUCTION NOR CONSUMPTION, BUT ONLY MARKETING; AND, IN THE
ALTERNATIVE, THAT IF THE ACT DOES GO BEYOND THE REGULATION OF MARKETING
IT IS SUSTAINABLE AS A "NECESSARY AND PROPER"  FN15  IMPLEMENTATION OF
THE POWER OF CONGRESS OVER INTERSTATE COMMERCE. 

THE GOVERNMENT'S CONCERN LEST THE ACT BE HELD TO BE A REGULATION OF
PRODUCTION OR CONSUMPTION, RATHER THAN OF MARKETING, IS ATTRIBUTABLE TO
A FEW DICTA AND DECISIONS OF THIS COURT WHICH MIGHT BE UNDERSTOOD TO
LAY IT DOWN THAT ACTIVITIES SUCH AS "PRODUCTION," "MANUFACTURING," AND
"MINING" ARE STRICTLY "LOCAL" AND, EXCEPT IN SPECIAL CIRCUMSTANCES
WHICH ARE NOT PRESENT HERE, CANNOT BE REGULATED UNDER THE COMMERCE
POWER BECAUSE THEIR EFFECTS UPON INTERSTATE COMMERCE ARE, AS MATTER OF
LAW, ONLY "INDIRECT."  FN16  EVEN TODAY, WHEN THIS POWER HAS BEEN HELD
TO HAVE GREAT LATITUDE, THERE IS NO DECISION OF THIS COURT THAT SUCH
ACTIVITIES MAY BE REGULATED WHERE NO PART OF THE PRODUCT IS INTENDED
FOR INTERSTATE COMMERCE OR INTERMINGLED WITH THE SUBJECTS THEREOF.  WE
BELIEVE THAT A REVIEW OF THE COURSE OF DECISION UNDER THE COMMERCE
CLAUSE WILL MAKE PLAIN, HOWEVER, THAT QUESTIONS OF THE POWER OF
CONGRESS ARE NOT TO BE DECIDED BY REFERENCE TO ANY FORMULA WHICH WOULD
GIVE CONTROLLING FORCE TO NOMENCLATURE SUCH AS "PRODUCTION" AND
"INDIRECT" AND FORECLOSE CONSIDERATION OF THE ACTUAL EFFECTS OF THE
ACTIVITY IN QUESTION UPON INTERSTATE COMMERCE. 

AT THE BEGINNING CHIEF JUSTICE MARSHALL DESCRIBED THE FEDERAL
COMMERCE POWER WITH A BREADTH NEVER YET EXCEEDED.  GIBBONS V. OGDEN, 9
WHEAT.  1, 194-195.  HE MADE EMPHATIC THE EMBRACING AND PENETRATING
NATURE OF THIS POWER BY WARNING THAT EFFECTIVE RESTRAINTS ON ITS
EXERCISE MUST PROCEED FROM POLITICAL RATHER THAN FROM JUDICIAL
PROCESSES.  ID. AT 197. 

FOR NEARLY A CENTURY, HOWEVER, DECISIONS OF THIS COURT UNDER THE
COMMERCE CLAUSE DEALT RARELY WITH QUESTIONS OF WHAT CONGRESS MIGHT DO
IN THE EXERCISE OF ITS GRANTED POWER UNDER THE CLAUSE, AND ALMOST
ENTIRELY WITH THE PERMISSIBILITY OF STATE ACTIVITY WHICH IT WAS CLAIMED
DISCRIMINATED AGAINST OR BURDENED INTERSTATE COMMERCE.  DURING THIS
PERIOD THERE WAS PERHAPS LITTLE OCCASION FOR THE AFFIRMATIVE EXERCISE
OF THE COMMERCE POWER, AND THE INFLUENCE OF THE CLAUSE ON AMERICAN LIFE
AND LAW WAS A NEGATIVE ONE, RESULTING ALMOST WHOLLY FROM ITS OPERATION
AS A RESTRAINT UPON THE POWERS OF THE STATES.  IN DISCUSSION AND
DECISION THE POINT OF REFERENCE, INSTEAD OF BEING WHAT WAS "NECESSARY
AND PROPER" TO THE EXERCISE BY CONGRESS OF ITS GRANTED POWER, WAS OFTEN
SOME CONCEPT OF SOVEREIGNTY THOUGHT TO BE IMPLICIT IN THE STATUS OF
STATEHOOD.  CERTAIN ACTIVITIES SUCH AS "PRODUCTION," "MANUFACTURING,"
AND "MINING" WERE OCCASIONALLY SAID TO BE WITHIN THE PROVINCE OF STATE
GOVERNMENTS AND BEYOND THE POWER OF CONGRESS UNDER THE COMMERCE
CLAUSE.  FN17    IT WAS NOT UNTIL 1887, WITH THE ENACTMENT OF THE
INTERSTATE COMMERCE ACT,  FN18  THAT THE INTERSTATE COMMERCE POWER
BEGAN TO EXERT POSITIVE INFLUENCE IN AMERICAN LAW AND LIFE.  THIS FIRST
IMPORTANT FEDERAL RESORT TO THE COMMERCE POWER WAS FOLLOWED IN 1890 BY
THE SHERMAN ANTI-TRUST ACT FN19  AND, THEREAFTER, MAINLY AFTER 1903, BY
MANY OTHERS.  THESE STATUTES USHERED IN NEW PHASES OF ADJUDICATION,
WHICH REQUIRED THE COURT TO APPROACH THE INTERPRETATION OF THE COMMERCE
CLAUSE IN THE LIGHT OF AN ACTUAL EXERCISE BY CONGRESS OF ITS POWER
THEREUNDER. 

WHEN IT FIRST DEALT WITH THIS NEW LEGISLATION, THE COURT ADHERED TO
ITS EARLIER PRONOUNCEMENTS, AND ALLOWED BUT LITTLE SCOPE TO THE POWER
OF CONGRESS.  UNITED STATES V. KNIGHT CO., 156 U.S. 1.  FN20 THESE
EARLIER PRONOUNCEMENTS ALSO PLAYED AN IMPORTANT PART IN SEVERAL OF THE
FIVE CASES IN WHICH THIS COURT LATER HELD THAT ACTS OF CONGRESS UNDER
THE COMMERCE CLAUSE WERE IN EXCESS OF ITS POWER.  FN21 

EVEN WHILE IMPORTANT OPINIONS IN THIS LINE OF RESTRICTIVE AUTHORITY
WERE BEING WRITTEN, HOWEVER, OTHER CASES CALLED FORTH BROADER
INTERPRETATIONS OF THE COMMERCE CLAUSE DESTINED TO SUPERSEDE THE
EARLIER ONES, AND TO BRING ABOUT A RETURN TO THE PRINCIPLES FIRST
ENUNCIATED BY CHIEF JUSTICE MARSHALL IN GIBBONS V. OGDEN, SUPRA. 

NOT LONG AFTER THE DECISION OF UNITED STATES V. KNIGHT CO., SUPRA,
MR. JUSTICE HOLMES, IN SUSTAINING THE EXERCISE OF NATIONAL POWER OVER
INTRASTATE ACTIVITY, STATED FOR THE COURT THAT "COMMERCE AMONG THE
STATES IS NOT A TECHNICAL LEGAL CONCEPTION, BUT A PRACTICAL ONE, DRAWN
FROM THE COURSE OF BUSINESS."  SWIFT & CO. V. UNITED STATES, 196 U.S.
375, 398.  IT WAS SOON DEMONSTRATED THAT THE EFFECTS OF MANY KINDS OF
INTRASTATE ACTIVITY UPON INTERSTATE COMMERCE WERE SUCH AS TO MAKE THEM
A PROPER SUBJECT OF FEDERAL REGULATION.  FN22  IN SOME CASES SUSTAINING
THE EXERCISE OF FEDERAL POWER OVER INTRASTATE MATTERS THE TERM "DIRECT"
WAS USED FOR THE PURPOSE OF STATING, RATHER THAN OF REACHING, A RESULT;
FN23  IN OTHERS IT WAS TREATED AS SYNONYMOUS WITH "SUBSTANTIAL" OR
"MATERIAL"; FN24 AND IN OTHERS IT WAS NOT USED AT ALL.  FN25  OF LATE
ITS USE HAS BEEN ABANDONED IN CASES DEALING WITH QUESTIONS OF FEDERAL
POWER UNDER THE COMMERCE CLAUSE. 

IN THE SHREVEPORT RATE CASES, 234 U.S. 342, THE COURT HELD THAT
RAILROAD RATES OF AN ADMITTEDLY INTRASTATE CHARACTER AND FIXED BY
AUTHORITY OF THE STATE MIGHT, NEVERTHELESS, BE REVISED BY THE FEDERAL
GOVERNMENT BECAUSE OF THE ECONOMIC EFFECTS WHICH THEY HAD UPON
INTERSTATE COMMERCE.  THE OPINION OF MR. JUSTICE HUGHES FOUND FEDERAL
INTERVENTION CONSTITUTIONALLY AUTHORIZED BECAUSE OF "MATTERS HAVING
SUCH A CLOSE AND SUBSTANTIAL RELATION TO INTERSTATE TRAFFIC THAT THE
CONTROL IS ESSENTIAL OR APPROPRIATE TO THE SECURITY OF THAT TRAFFIC, TO
THE EFFICIENCY OF THE INTERSTATE SERVICE, AND TO THE MAINTENANCE OF
CONDITIONS UNDER WHICH INTERSTATE COMMERCE MAY BE CONDUCTED UPON FAIR
TERMS AND WITHOUT MOLESTATION OR HINDRANCE."  ID. AT 351. 

THE COURT'S RECOGNITION OF THE RELEVANCE OF THE ECONOMIC EFFECTS IN
THE APPLICATION OF THE COMMERCE CLAUSE, EXEMPLIFIED BY THIS STATEMENT,
HAS MADE THE MECHANICAL APPLICATION OF LEGAL FORMULAS NO LONGER
FEASIBLE.  ONCE AN ECONOMIC MEASURE OF THE REACH OF THE POWER GRANTED
TO CONGRESS IN THE COMMERCE CLAUSE IS ACCEPTED, QUESTIONS OF FEDERAL
POWER CANNOT BE DECIDED SIMPLY BY FINDING THE ACTIVITY IN QUESTION TO
BE "PRODUCTION," NOR CAN CONSIDERATION OF ITS ECONOMIC EFFECTS BE
FORECLOSED BY CALLING THEM "INDIRECT."  THE PRESENT CHIEF JUSTICE HAS
SAID IN SUMMARY OF THE PRESENT STATE OF THE LAW:  "THE COMMERCE POWER
IS NOT CONFINED IN ITS EXERCISE TO THE REGULATION OF COMMERCE AMONG THE
STATES.  IT EXTENDS TO THOSE ACTIVITIES INTRASTATE WHICH SO AFFECT
INTERSTATE COMMERCE, OR THE EXERTION OF THE POWER OF CONGRESS OVER IT,
AS TO MAKE REGULATION OF THEM APPROPRIATE MEANS TO THE ATTAINMENT OF A
LEGITIMATE END, THE EFFECTIVE EXECUTION OF THE GRANTED POWER TO
REGULATE INTERSTATE COMMERCE.  ...  THE POWER OF CONGRESS OVER
INTERSTATE COMMERCE IS PLENARY AND COMPLETE IN ITSELF, MAY BE EXERCISED
TO ITS UTMOST EXTENT, AND ACKNOWLEDGES NO LIMITATIONS OTHER THAN ARE
PRESCRIBED IN THE CONSTITUTION.  ...  IT FOLLOWS THAT NO FORM OF STATE
ACTIVITY CAN CONSTITUTIONALLY THWART THE REGULATORY POWER GRANTED BY
THE COMMERCE CLAUSE TO CONGRESS.  HENCE THE REACH OF THAT POWER EXTENDS
TO THOSE INTRASTATE ACTIVITIES WHICH IN A SUBSTANTIAL WAY INTERFERE
WITH OR OBSTRUCT THE EXERCISE OF THE GRANTED POWER."  UNITED STATES V.
WRIGHTWOOD DAIRY CO., 315 U.S. 110, 119. 

WHETHER THE SUBJECT OF THE REGULATION IN QUESTION WAS "PRODUCTION,"
"CONSUMPTION," OR "MARKETING" IS, THEREFORE, NOT MATERIAL FOR PURPOSES
OF DECIDING THE QUESTION OF FEDERAL POWER BEFORE US.  THAT AN ACTIVITY
IS OF LOCAL CHARACTER MAY HELP IN A DOUBTFUL CASE TO DETERMINE WHETHER
CONGRESS INTENDED TO REACH IT.  FN26  THE SAME CONSIDERATION MIGHT HELP
IN DETERMINING WHETHER IN THE ABSENCE OF CONGRESSIONAL ACTION IT WOULD
BE PERMISSIBLE FOR THE STATE TO EXERT ITS POWER ON THE SUBJECT MATTER,
EVEN THOUGH IN SO DOING IT TO SOME DEGREE AFFECTED INTERSTATE
COMMERCE.  BUT EVEN IF APPELLEE'S ACTIVITY BE LOCAL AND THOUGH IT MAY
NOT BE REGARDED AS COMMERCE, IT MAY STILL, WHATEVER ITS NATURE, BE
REACHED BY CONGRESS IF IT EXERTS A SUBSTANTIAL ECONOMIC EFFECT ON
INTERSTATE COMMERCE, AND THIS IRRESPECTIVE OF WHETHER SUCH EFFECT IS
WHAT MIGHT AT SOME EARLIER TIME HAVE BEEN DEFINED AS "DIRECT" OR
"INDIRECT." 

THE PARTIES HAVE STIPULATED A SUMMARY OF THE ECONOMICS OF THE WHEAT
INDUSTRY.  COMMERCE AMONG THE STATES IN WHEAT IS LARGE AND IMPORTANT. 
ALTHOUGH WHEAT IS RAISED IN EVERY STATE BUT ONE, PRODUCTION IN MOST
STATES IS NOT EQUAL TO CONSUMPTION.  SIXTEEN STATES ON AVERAGE HAVE HAD
A SURPLUS OF WHEAT ABOVE THEIR OWN REQUIREMENTS FOR FEED, SEED, AND
FOOD.  THIRTY-TWO STATES AND THE DISTRICT OF COLUMBIA, WHERE PRODUCTION
HAS BEEN BELOW CONSUMPTION, HAVE LOOKED TO THESE SURPLUS-PRODUCING
STATES FOR THEIR SUPPLY AS WELL AS FOR WHEAT FOR EXPORT AND CARRY
OVER. 

THE WHEAT INDUSTRY HAS BEEN A PROBLEM INDUSTRY FOR SOME YEARS. 
LARGELY AS A RESULT OF INCREASED FOREIGN PRODUCTION AND IMPORT
RESTRICTIONS, ANNUAL EXPORTS OF WHEAT AND FLOUR FROM THE UNITED STATES
DURING THE TEN-YEAR PERIOD ENDING IN 1940 AVERAGED LESS THAN 10 PER
CENT OF TOTAL PRODUCTION, WHILE DURING THE 1920'S THEY AVERAGED MORE
THAN 25 PER CENT.  THE DECLINE IN THE EXPORT TRADE HAS LEFT A LARGE
SURPLUS IN PRODUCTION WHICH, IN CONNECTION WITH AN ABNORMALLY LARGE
SUPPLY OF WHEAT AND OTHER GRAINS IN RECENT YEARS, CAUSED CONGESTION IN
A NUMBER OF MARKETS; TIED UP RAILROAD CARS; AND CAUSED ELEVATORS IN
SOME INSTANCES TO TURN AWAY GRAINS, AND RAILROADS TO INSTITUTE
EMBARGOES TO PREVENT FURTHER CONGESTION. 

MANY COUNTRIES, BOTH IMPORTING AND EXPORTING, HAVE SOUGHT TO MODIFY
THE IMPACT OF THE WORLD MARKET CONDITIONS ON THEIR OWN ECONOMY. 
IMPORTING COUNTRIES HAVE TAKEN MEASURES TO STIMULATE PRODUCTION AND
SELF-SUFFICIENCY.  THE FOUR LARGE EXPORTING COUNTRIES OF ARGENTINA,
AUSTRALIA, CANADA, AND THE UNITED STATES HAVE ALL UNDERTAKEN VARIOUS
PROGRAMS FOR THE RELIEF OF GROWERS.  SUCH MEASURES HAVE BEEN DESIGNED,
IN PART AT LEAST, TO PROTECT THE DOMESTIC PRICE RECEIVED BY PRODUCERS. 
SUCH PLANS HAVE GENERALLY EVOLVED TOWARDS CONTROL BY THE CENTRAL
GOVERNMENT.  FN27 

IN THE ABSENCE OF REGULATION, THE PRICE OF WHEAT IN THE UNITED STATES
WOULD BE MUCH AFFECTED BY WORLD CONDITIONS.  DURING 1941, PRODUCERS WHO
COOPERATED WITH THE AGRICULTURAL ADJUSTMENT PROGRAM RECEIVED AN AVERAGE
PRICE ON THE FARM OF ABOUT $1.16 A BUSHEL, AS COMPARED WITH THE WORLD
MARKET PRICE OF 40 CENTS A BUSHEL. 

DIFFERENCES IN FARMING CONDITIONS, HOWEVER, MAKE THESE BENEFITS MEAN
DIFFERENT THINGS TO DIFFERENT WHEAT GROWERS.  THERE ARE SEVERAL LARGE
AREAS OF SPECIALIZATION IN WHEAT, AND THE CONCENTRATION ON THIS CROP
REACHES 27 PER CENT OF THE CROP LAND, AND THE AVERAGE HARVEST RUNS AS
HIGH AS 155 ACRES.  EXCEPT FOR SOME USE OF WHEAT AS STOCK FEED AND FOR
SEED, THE PRACTICE IS TO SELL THE CROP FOR CASH.  WHEAT FROM SUCH AREAS
CONSTITUTES THE BULK OF THE INTERSTATE COMMERCE THEREIN. 

ON THE OTHER HAND, IN SOME NEW ENGLAND STATES LESS THAN ONE PER CENT
OF THE CROP LAND IS DEVOTED TO WHEAT, AND THE AVERAGE HARVEST IS LESS
THAN FIVE ACRES PER FARM.  IN 1940 THE AVERAGE PERCENTAGE OF THE TOTAL
WHEAT PRODUCTION THAT WAS SOLD IN EACH STATE, AS MEASURED BY VALUE,
RANGED FROM 29 PER CENT THEREOF IN WISCONSIN TO 90 PER CENT IN
WASHINGTON.  EXCEPT IN REGIONS OF LARGE-SCALE PRODUCTION, WHEAT IS
USUALLY GROWN IN ROTATION WITH OTHER CROPS; FOR A NURSE CROP FOR GRASS
SEEDING; AND AS A COVER CROP TO PREVENT SOIL EROSION AND LEACHING. 
SOME IS SOLD, SOME KEPT FOR SEED, AND A PERCENTAGE OF THE TOTAL
PRODUCTION MUCH LARGER THAN IN AREAS OF SPECIALIZATION IS CONSUMED ON
THE FARM AND GROWN FOR SUCH PURPOSE.  SUCH FARMERS, WHILE GROWING SOME
WHEAT, MAY EVEN FIND THE BALANCE OF THEIR INTEREST ON THE CONSUMER'S
SIDE. 

THE EFFECT OF CONSUMPTION OF HOME-GROWN WHEAT ON INTERSTATE COMMERCE
IS DUE TO THE FACT THAT IT CONSTITUTES THE MOST VARIABLE FACTOR IN THE
DISAPPEARANCE OF THE WHEAT CROP.  CONSUMPTION ON THE FARM WHERE GROWN
APPEARS TO VARY IN AN AMOUNT GREATER THAN 20 PER CENT OF AVERAGE
PRODUCTION.  THE TOTAL AMOUNT OF WHEAT CONSUMED AS FOOD VARIES BUT
RELATIVELY LITTLE, AND USE AS SEED IS RELATIVELY CONSTANT. 

THE MAINTENANCE BY GOVERNMENT REGULATION OF A PRICE FOR WHEAT
UNDOUBTEDLY CAN BE ACCOMPLISHED AS EFFECTIVELY BY SUSTAINING OR
INCREASING THE DEMAND AS BY LIMITING THE SUPPLY.  THE EFFECT OF THE
STATUTE BEFORE US IS TO RESTRICT THE AMOUNT WHICH MAY BE PRODUCED FOR
MARKET AND THE EXTENT AS WELL TO WHICH ONE MAY FORESTALL RESORT TO THE
MARKET BY PRODUCING TO MEET HIS OWN NEEDS.  THAT APPELLEE'S OWN
CONTRIBUTION TO THE DEMAND FOR WHEAT MAY BE TRIVIAL BY ITSELF IS NOT
ENOUGH TO REMOVE HIM FROM THE SCOPE OF FEDERAL REGULATION WHERE, AS
HERE, HIS CONTRIBUTION, TAKEN TOGETHER WITH THAT OF MANY OTHERS
SIMILARLY SITUATED, IS FAR FROM TRIVIAL.  LABOR BOARD V. FAINBLATT, 306
U.S. 601, 606 ET SEQ.; UNITED STATES V. DARBY, SUPRA, AT 123. 

IT IS WELL ESTABLISHED BY DECISIONS OF THIS COURT THAT THE POWER TO
REGULATE COMMERCE INCLUDES THE POWER TO REGULATE THE PRICES AT WHICH
COMMODITIES IN THAT COMMERCE ARE DEALT IN AND PRACTICES AFFECTING SUCH
PRICES.  FN28  ONE OF THE PRIMARY PURPOSES OF THE ACT IN QUESTION WAS
TO INCREASE THE MARKET PRICE OF WHEAT, AND TO THAT END TO LIMIT THE
VOLUME THEREOF THAT COULD AFFECT THE MARKET.  IT CAN HARDLY BE DENIED
THAT A FACTOR OF SUCH VOLUME AND VARIABILITY AS HOME-CONSUMED WHEAT
WOULD HAVE A SUBSTANTIAL INFLUENCE ON PRICE AND MARKET CONDITIONS. 
THIS MAY ARISE BECAUSE BEING IN MARKETABLE CONDITION SUCH WHEAT
OVERHANGS THE MARKET AND, IF INDUCED BY RISING PRICES, TENDS TO FLOW
INTO THE MARKET AND CHECK PRICE INCREASES.  BUT IF WE ASSUME THAT IT IS
NEVER MARKETED, IT SUPPLIES A NEED OF THE MAN WHO GREW IT WHICH WOULD
OTHERWISE BE REFLECTED BY PURCHASES IN THE OPEN MARKET.  HOME-GROWN
WHEAT IN THIS SENSE COMPETES WITH WHEAT IN COMMERCE.  THE STIMULATION
OF COMMERCE IS A USE OF THE REGULATORY FUNCTION QUITE AS DEFINITELY AS
PROHIBITIONS OR RESTRICTIONS THEREON.  THIS RECORD LEAVES US IN NO
DOUBT THAT CONGRESS MAY PROPERLY HAVE CONSIDERED THAT WHEAT CONSUMED ON
THE FARM WHERE GROWN, IF WHOLLY OUTSIDE THE SCHEME OF REGULATION, WOULD
HAVE A SUBSTANTIAL EFFECT IN DEFEATING AND OBSTRUCTING ITS PURPOSE TO
STIMULATE TRADE THEREIN AT INCREASED PRICES. 

IT IS SAID, HOWEVER, THAT THIS ACT, FORCING SOME FARMERS INTO THE
MARKET TO BUY WHAT THEY COULD PROVIDE FOR THEMSELVES, IS AN UNFAIR
PROMOTION OF THE MARKETS AND PRICES OF SPECIALIZING WHEAT GROWERS.  IT
IS OF THE ESSENCE OF REGULATION THAT IT LAYS A RESTRAINING HAND ON THE
SELFINTEREST OF THE REGULATED AND THAT ADVANTAGES FROM THE REGULATION
COMMONLY FALL TO OTHERS.  THE CONFLICTS OF ECONOMIC INTEREST BETWEEN
THE REGULATED AND THOSE WHO ADVANTAGE BY IT ARE WISELY LEFT UNDER OUR
SYSTEM TO RESOLUTION BY THE CONGRESS UNDER ITS MORE FLEXIBLE AND
RESPONSIBLE LEGISLATIVE PROCESS.  FN29  SUCH CONFLICTS RARELY LEND
THEMSELVES TO JUDICIAL DETERMINATION.  AND WITH THE WISDOM,
WORKABILITY, OR FAIRNESS, OF THE PLAN OF REGULATION WE HAVE NOTHING TO
DO.

            III 

THE STATUTE IS ALSO CHALLENGED AS A DEPRIVATION OF PROPERTY WITHOUT
DUE PROCESS OF LAW CONTRARY TO THE FIFTH AMENDMENT, BOTH BECAUSE OF ITS
REGULATORY EFFECT ON THE APPELLEE AND BECAUSE OF ITS ALLEGED
RETROACTIVE EFFECT.  THE COURT BELOW SUSTAINED THE PLEA ON THE GROUND
OF FORBIDDEN RETROACTIVITY, "OR IN THE ALTERNATIVE, THAT THE EQUITIES
OF THE CASE AS SHOWN BY THE RECORD FAVOR THE PLAINTIFF."  43 F.SUPP. 
1017, 1019.  AN ACT OF CONGRESS IS NOT TO BE REFUSED APPLICATION BY THE
COURTS AS ARBITRARY AND CAPRICIOUS AND FORBIDDEN BY THE DUE PROCESS
CLAUSE MERELY BECAUSE IT IS DEEMED IN A PARTICULAR CASE TO WORK AN
INEQUITABLE RESULT. 

APPELLEE'S CLAIM THAT THE ACT WORKS A DEPRIVATION OF DUE PROCESS EVEN
APART FROM ITS ALLEGEDLY RETROACTIVE EFFECT IS NOT PERSUASIVE.  CONTROL
OF TOTAL SUPPLY, UPON WHICH THE WHOLE STATUTORY PLAN IS BASED, DEPENDS
UPON CONTROL OF INDIVIDUAL SUPPLY.  APPELLEE'S CLAIM IS NOT THAT HIS
QUOTA REPRESENTED LESS THAN A FAIR SHARE OF THE NATIONAL QUOTA, BUT
THAT THE FIFTH AMENDMENT REQUIRES THAT HE BE FREE FROM PENALTY FOR
PLANTING WHEAT AND DISPOSING OF HIS CROP AS HE SEES FIT. 

WE DO NOT AGREE.  IN ITS EFFORT TO CONTROL TOTAL SUPPLY, THE
GOVERNMENT GAVE THE FARMER A CHOICE WHICH WAS, OF COURSE, DESIGNED TO
ENCOURAGE COOPERATION AND DISCOURAGE NON-COOPERATION.  THE FARMER WHO
PLANTED WITHIN HIS ALLOTMENT WAS IN EFFECT GUARANTEED A MINIMUM RETURN
MUCH ABOVE WHAT HIS WHEAT WOULD HAVE BROUGHT IF SOLD ON A WORLD MARKET
BASIS.  EXEMPTION FROM THE APPLICABILITY OF QUOTAS WAS MADE IN FAVOR OF
SMALL PRODUCERS.  FN30  THE FARMER WHO PRODUCED IN EXCESS OF HIS QUOTA
MIGHT ESCAPE PENALTY BY DELIVERING HIS WHEAT TO THE SECRETARY, OR BY
STORING IT WITH THE PRIVILEGE OF SALE WITHOUT PENALTY IN A LATER YEAR
TO FILL OUT HIS QUOTA, OR IRRESPECTIVE OF QUOTAS IF THEY ARE NO LONGER
IN EFFECT, AND HE COULD OBTAIN A LOAN OF 60 PER CENT OF THE RATE FOR
COOPERATORS, OR ABOUT 59 CENTS A BUSHEL, ON SO MUCH OF HIS WHEAT AS
WOULD BE SUBJECT TO PENALTY IF MARKETED.  FN31 FINALLY, HE MIGHT MAKE
OTHER DISPOSITION OF HIS WHEAT, SUBJECT TO THE PENALTY.  IT IS AGREED
THAT AS THE RESULT OF THE WHEAT PROGRAMS HE IS ABLE TO MARKET HIS WHEAT
AT A PRICE "FAR ABOVE ANY WORLD PRICE BASED ON THE NATURAL REACTION OF
SUPPLY AND DEMAND."  WE CAN HARDLY FIND A DENIAL OF DUE PROCESS IN
THESE CIRCUMSTANCES, PARTICULARLY SINCE IT IS EVEN DOUBTFUL THAT
APPELLEE'S BURDENS UNDER THE PROGRAM OUTWEIGH HIS BENEFITS.  IT IS
HARDLY LACK OF DUE PROCESS FOR THE GOVERNMENT TO REGULATE THAT WHICH IT
SUBSIDIZES. 

THE AMENDMENT OF MAY 26, 1941 IS SAID TO BE INVALIDLY RETROACTIVE IN
TWO RESPECTS:  FIRST, IN THAT IT INCREASED THE PENALTY FROM 15 CENTS TO
49 CENTS A BUSHEL; SECONDLY, IN THAT, BY THE NEW DEFINITION OF "FARM
MARKETING EXCESS," IT SUBJECTED TO THE PENALTY WHEAT WHICH HAD
THERETOFORE BEEN SUBJECT TO NO PENALTY AT ALL, I.E., WHEAT NOT
"MARKETED" AS DEFINED IN THE ACT. 

IT IS NOT TO BE DENIED THAT BETWEEN SEED TIME AND HARVEST IMPORTANT
CHANGES WERE MADE IN THE ACT WHICH AFFECTED THE DESIRABILITY AND
ADVANTAGE OF PLANTING THE EXCESS ACREAGE.  THE LAW AS IT STOOD WHEN THE
APPELLEE PLANTED HIS CROP MADE THE QUOTA FOR HIS FARM THE NORMAL OR THE
ACTUAL PRODUCTION OF THE ACREAGE ALLOTMENT, WHICHEVER WAS GREATER, PLUS
ANY CARRY-OVER WHEAT THAT HE COULD HAVE MARKETED WITHOUT PENALTY IN THE
PRECEDING MARKETING YEAR.  FN32  THE ACT ALSO PROVIDED THAT THE FARMER
WHO, WHILE QUOTAS WERE IN EFFECT, MARKETED WHEAT IN EXCESS OF THE QUOTA
FOR THE FARM ON WHICH IT WAS PRODUCED SHOULD BE SUBJECT TO A PENALTY OF
15 CENTS A BUSHEL ON THE EXCESS SO MARKETED.  FN33  MARKETING OF WHEAT
WAS DEFINED AS INCLUDING DISPOSITION "BY FEEDING (IN ANY FORM) TO
POULTRY OR LIVESTOCK WHICH, OR THE PRODUCTS OF WHICH, ARE SOLD,
BARTERED, OR EXCHANGED,  ...  " FN34  THE AMENDMENT OF MAY 26, 1941,
MADE BEFORE THE APPELLEE HAD HARVESTED THE GROWING CROP, CHANGED THE
QUOTA AND PENALTY PROVISIONS.  THE QUOTA FOR EACH FARM BECAME THE
ACTUAL PRODUCTION OF ACREAGE PLANTED TO WHEAT, LESS THE NORMAL OR THE
ACTUAL PRODUCTION, WHICHEVER WAS SMALLER, OF ANY EXCESS ACREAGE N35. 
WHEAT IN EXCESS OF THIS QUOTA, KNOWN AS THE "FARMMARKETING EXCESS" AND
DECLARED BY THE AMENDMENT TO BE "REGARDED AS AVAILABLE FOR MARKETING,"
WAS SUBJECTED TO A PENALTY FIXED AT 50 PER CENT OF THE BASIC LOAN RATE
FOR COOPERATORS,  FN36  OR 49 CENTS, INSTEAD OF THE PENALTY OF 15 CENTS
WHICH OBTAINED AT THE TIME OF PLANTING.  AT THE SAME TIME, THERE WAS
AUTHORIZED AN INCREASE IN THE AMOUNT OF THE LOAN WHICH MIGHT BE MADE TO
NON-COOPERATORS SUCH AS THE APPELLEE UPON WHEAT WHICH "WOULD BE SUBJECT
TO PENALTY IF MARKETED" FROM ABOUT 34 CENTS PER BUSHEL TO ABOUT 59
CENTS.  FN37  THE ENTIRE CROP WAS SUBJECTED BY THE AMENDMENT TO A LIEN
FOR THE PAYMENT OF THE PENALTY. 

THE PENALTY PROVIDED BY THE AMENDMENT CAN BE POSTPONED OR AVOIDED
ONLY BY STORING THE FARM MARKETING EXCESS ACCORDING TO REGULATIONS
PROMULGATED BY THE SECRETARY OR BY DELIVERING IT TO HIM WITHOUT
COMPENSATION; AND THE PENALTY IS INCURRED AND BECOMES DUE ON THRESHING
N38.  THUS THE PENALTY WAS CONTINGENT UPON AN ACT WHICH APPELLEE
COMMITTED NOT BEFORE BUT AFTER THE ENACTMENT OF THE STATUTE, AND HAD HE
CHOSEN TO CUT HIS EXCESS AND CURE IT OR FEED IT AS HAY, OR TO REAP AND
FEED IT WITH THE HEAD AND STRAW TOGETHER, NO PENALTY WOULD HAVE BEEN
DEMANDED.  SUCH MANNER OF CONSUMPTION IS NOT UNCOMMON.  ONLY WHEN HE
THRESHED AND THEREBY MADE IT A PART OF THE BULK OF WHEAT OVERHANGING
THE MARKET DID HE BECOME SUBJECT TO PENALTY.  HE HAS MADE NO EFFORT TO
SHOW THAT THE VALUE OF HIS EXCESS WHEAT CONSUMED WITHOUT THRESHING WAS
LESS THAN IT WOULD HAVE BEEN HAD IT BEEN THRESHED WHILE SUBJECT TO THE
STATUTORY PROVISIONS IN FORCE AT THE TIME OF PLANTING.  CONCURRENTLY
WITH THE INCREASE IN THE AMOUNT OF THE PENALTY, CONGRESS AUTHORIZED A
SUBSTANTIAL INCREASE IN THE AMOUNT OF THE LOAN WHICH MIGHT BE MADE TO
COOPERATORS UPON STORED FARM MARKETING EXCESS WHEAT.  THAT APPELLEE IS
THE WORSE OFF FOR THE AGGREGATE OF THIS LEGISLATION DOES NOT APPEAR; IT
ONLY APPEARS THAT, IF HE COULD GET ALL THAT THE GOVERNMENT GIVES AND DO
NOTHING THAT THE GOVERNMENT ASKS, HE WOULD BE BETTER OFF THAN THIS LAW
ALLOWS.  TO DENY HIM THIS IS NOT TO DENY HIM DUE PROCESS OF LAW.  CF.
MULFORD V. SMITH, 307 U.S. 38.  REVERSED. 

FN1  55 STAT. 203, 7 U.S.C. (SUPP. NO. I) SEC. 1340. 

FN2  52 STAT. 31, AS AMENDED, 7 U.S.C. SEC. 1281 ET SEQ. 

FN3  BECAUSE OF THE CONCLUSION REACHED AS TO THE MERITS, WE NEED NOT
CONSIDER THE QUESTION WHETHER THESE APPELLANTS WOULD BE PROPER IF OUR
DECISION WERE OTHERWISE. 

FN4  WHEAT - 507, SECS. 728.240, 728.248, 6 FEDERAL REGISTER 2695,
2699-2701. 

FN5  SEC. 331, 7 U.S.C. SEC. 1331. 

FN6  SEC. 335, 7 U.S.C. SEC. 1335. 

FN7  SECS. 302(B)(H), 303, 7 U.S.C. SECS. 1302(B)(H), 1303; SEC. 10
OF THE AMENDMENT OF MAY 26, 1941, 7 U.S.C. (SUPP. I), SEC. 1340(10). 

FN8  SEC. 335(A), 7 U.S.C. SEC. 1335(A). 

FN9  SEC. 336, 7 U.S.C. SEC. 1336. 

FN10 7 U.S.C. SEC. 1339.  THIS IMPOSED A PENALTY OF 15[ PER BUSHEL
UPON WHEAT MARKETED IN EXCESS OF THE FARM MARKETING QUOTA WHILE SUCH
QUOTA WAS IN EFFECT.  SEE ALSO, AMENDMENTS OF JULY 26, 1939, 53 STAT.
1126, 7 U.S.C. SEC. 1335(C), AND OF JULY 2, 1940, 54 STAT. 727, 7
U.S.C. SEC. 1301(B)(6)(A), (B). 

FN11  50 STAT. 752-753, SEC. 3, 28 U.S.C. SEC. 380A. 

FN12  SEE ALSO, GRAY V. POWELL, 314 U.S. 402; UNITED STATES V.
WRIGHTWOOD DAIRY CO., 315 U.S. 110; CLOVERLEAF CO. V. PATTERSON, 315
U.S. 148; KIRSCHBAUM CO. V. WALLING, 316 U.S. 517; OVERNIGHT
TRANSPORTATION CO. V. MISSEL, 316 U.S. 572. 

FN13  54 STAT. 727, 7 U.S.C. SEC. 1301(B)(6)(A), (B). 

FN14  SECS. 1, 2, OF THE AMENDMENT OF MAY 26, 1941; WHEAT - 507, SEC.
728.251, 6 FEDERAL REGISTER 2695, 2701. 

FN15  CONSTITUTION, ARTICLE I, SEC. 8, CL. 18. 

FN16  AFTER DISCUSSING AND AFFIRMING THE CASES STATING THAT SUCH
ACTIVITIES WERE "LOCAL," AND COULD BE REGULATED UNDER THE COMMERCE
CLAUSE ONLY IF BY VIRTUE OF SPECIAL CIRCUMSTANCES THEIR EFFECTS UPON
INTERSTATE COMMERCE WERE "DIRECT," THE OPINION OF THE COURT IN CARTER
V. CARTER COAL CO., 298 U.S. 238, 308, STATED THAT:  "THE DISTINCTION
BETWEEN A DIRECT AND AN INDIRECT EFFECT TURNS, NOT UPON THE MAGNITUDE
OF EITHER THE CAUSE OR THE EFFECT, BUT ENTIRELY UPON THE MANNER IN
WHICH THE EFFECT HAS BEEN BROUGHT ABOUT.  ...  THE MATTER OF DEGREE HAS
NO BEARING UPON THE QUESTION HERE, SINCE THAT QUESTION IS NOT - WHAT IS
THE EXTENT OF THE LOCAL ACTIVITY OR CONDITION, OR THE EXTENT OF THE
EFFECT PRODUCED UPON INTERSTATE COMMERCE?  BUT - WHAT IS THE RELATION
BETWEEN THE ACTIVITY OR CONDITION AND THE EFFECT?"  SEE ALSO, CASES
CITED INFRA, NOTES 17 AND 21. 

FN17  VEAZIE V. MOOR, 14 HOW.  568, 573-574; KIDD V. PEARSON, 128
U.S. 1, 20-22. 

FN18  24 STAT. 379, 49 U.S.C. SEC. 1, ET SEQ. 

FN19 26 STAT. 209, 15 U.S.C. SEC. 1, ET SEQ. 

FN20  SEE ALSO, HOPKINS V. UNITED STATES, 171 U.S. 578; ANDERSON V.
UNITED STATES, 171 U.S. 604. 

FN21  EMPLOYERS' LIABILITY CASES, 207 U.S. 463; HAMMER V. DAGENHART,
247 U.S. 251; RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330;
SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495; CARTER V. CARTER COAL
CO., 298 U.S. 238; CF. UNITED STATES V. DEWITT, 9 WALL.  41; TRADEMARK
CASES, 100 U.S. 82; HILL V. WALLACE, 259 U.S. 44; HEISLER V. THOMAS
COLLIERY CO., 260 U.S. 245, 259-260; OLIVER IRON CO. V. LORD, 262 U.S.
172, 178-179; UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165. 

FN22  NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197; SWIFT &
CO. V. UNITED STATES, SUPRA; LOEWE V. LAWLOR, 208 U.S. 274; BALTIMORE &
OHIO R. CO. V. INTERSTATE COMMERCE COMMISSION, 221 U.S. 612; SOUTHERN
RY. CO. V. UNITED STATES, 222 U.S. 20; SECOND EMPLOYERS' LIABILITY
CASES, 223 U.S. 1; UNITED STATES V. PATTEN, 226 U.S. 525. 

FN23  UNITED LEATHER WORKERS V. HERKERT CO., 265 U.S. 457, 471; CF.
APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 511; DI SANTO V.
PENNSYLVANIA, 273 U.S. 34, 44(DISSENT); NORTHERN SECURITIES CO. V.
UNITED STATES, 193 U.S. 197, 395; STANDARD OIL CO. V. UNITED STATES,
221 U.S. 1, 66-69. 

FN24  IN SANTA CRUZ CO. V. LABOR BOARD, 303 U.S. 453, 466-467, CHIEF
JUSTICE HUGHES SAID: "'DIRECT' HAS BEEN CONTRASTED WITH 'INDIRECT,' AND
WHAT IS 'REMOTE' OR 'DISTANT' WITH WHAT IS 'CLOSE AND SUBSTANTIAL.' 
WHATEVER TERMINOLOGY IS USED, THE CRITERION IS NECESSARILY ONE OF
DEGREE AND MUST BE SO DEFINED.  THIS DOES NOT SATISFY THOSE WHO SEEK
FOR MATHEMATICAL OR RIGID FORMULAS.  BUT SUCH FORMULAS ARE NOT PROVIDED
BY THE GREAT CONCEPTS OF THE CONSTITUTION SUCH AS 'INTERSTATE
COMMERCE,' 'DUE PROCESS,' 'EQUAL PROTECTION.'" 

FN25  BALTIMORE & OHIO R. CO. V. INTERSTATE COMMERCE COMMISSION, 221
U.S. 612; SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1; INTERSTATE
COMMERCE COMMISSION V. GOODRICH TRANSIT CO., 224 U.S. 194. 

FN26  CF. FEDERAL TRADE COMMISSION V. BUNTE BROS., 312 U.S. 349. 

FN27  IT IS INTERESTING TO NOTE THAT ALL OF THESE HAVE FEDERATED
SYSTEMS OF GOVERNMENT, NOT OF COURSE WITHOUT IMPORTANT DIFFERENCES.  IN
ALL OF THEM, WHEAT REGULATION IS BY THE NATIONAL GOVERNMENT.  IN
ARGENTINA, WHEAT MAY BE PURCHASED ONLY FROM THE NATIONAL GRAIN BOARD. 
A CONDITION OF SALE TO THE BOARD, WHICH BUYS AT PEGGED PRICES, IS THE
PRODUCER'S AGREEMENT TO BECOME SUBJECT TO RESTRICTIONS ON PLANTING. 
SEE NOLAN, ARGENTINE GRAIN PRICE GUARANTY, FOREIGN AGRICULTURE (OFFICE
OF FOREIGN AGRICULTURAL RELATIONS, DEPARTMENT OF AGRICULTURE) MAY,
1942, PP. 185, 202.  THE AUSTRALIAN SYSTEM OF REGULATION INCLUDES THE
LICENSING OF GROWERS, WHO MAY NOT SOW MORE THAN THE AMOUNT LICENSED,
AND WHO MAY BE COMPELLED TO CUT PART OF THEIR CROPS FOR HAY IF A HEAVY
CROP IS IN PROSPECT.  SEE WRIGHT, AUSTRALIAN WHEAT STABILIZATION,
FOREIGN AGRICULTURE (OFFICE OF FOREIGN AGRICULTURAL RELATIONS,
DEPARTMENT OF AGRICULTURE) SEPTEMBER, 1942, PP. 329, 336.  THE CANADIAN
WHEAT BOARD HAS WIDE CONTROL OVER THE MARKETING OF WHEAT BY THE
INDIVIDUAL PRODUCER.  4 GEO. VI, C. 25, SEC. 5.  CANADIAN WHEAT HAS
ALSO BEEN THE SUBJECT OF NUMEROUS ORDERS IN COUNCIL.  E.G., 6
PROCLAMATIONS AND ORDERS IN COUNCIL (1942) 183, WHICH GIVES THE WHEAT
BOARD FULL CONTROL OF SALE, DELIVERY, MILLING AND DISPOSITION BY ANY
PERSON OR INDIVIDUAL.  SEE, ALSO, WHEAT ACREAGE REDUCTION ACT, 1942, 6
GEO. VI, C. 10. 

FN28  SWIFT & CO. V. UNITED STATES, 196 U.S. 375; STAFFORD V.
WALLACE, 258 U.S. 495; CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1;
CORONADO COAL CO. V. UNITED MINE WORKERS, 268 U.S. 295; UNITED STATES
V. TRENTON POTTERIES CO., 273 U.S. 392; TAGG BROS. & MOORHEAD V. UNITED
STATES, 280 U.S. 420; STANDARD OIL CO. OF INDIANA V. UNITED STATES, 283
U.S. 163; CURRIN V. WALLACE, 306 U.S. 1; MULFORD V. SMITH, 307 U.S. 38;
UNITED STATES V. ROCK ROYAL CO-OPERATIVE, SUPRA; UNITED STATES V.
SOCONY-VACUUM OIL CO., 310 U.S. 150; SUNSHINE ANTHRACITE COAL CO. V.
ADKINS, 310 U.S. 381; UNITED STATES V. DARBY, SUPRA; UNITED STATES V.
WRIGHTWOOD DAIRY CO., SUPRA; FEDERAL POWER COMMISSION V. PIPELINE CO.,
315 U.S. 575. 

FN29  CF. M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 413-415, 435-436;
GIBBONS V. OGDEN, SUPRA, AT 197; STAFFORD V. WALLACE, 258 U.S. 495,
521; CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1, 37; HELVERING V.
GERHARDT, 304 U.S. 405, 412. 

FN30  SECTION 7 OF THE AMENDMENT OF MAY 26, 1941 PROVIDED THAT A FARM
MARKETING QUOTA SHOULD NOT BE APPLICABLE TO ANY FARM ON WHICH THE
ACREAGE PLANTED TO WHEAT IS NOT IN EXCESS OF FIFTEEN ACRES.  WHEN THE
APPELLEE PLANTED HIS WHEAT THE QUOTA WAS INAPPLICABLE TO ANY FARM ON
WHICH THE NORMAL PRODUCTION OF THE ACREAGE PLANTED TO WHEAT WAS LESS
THAN 200 BUSHELS.  SEC. 335(D) OF THE AGRICULTURAL ADJUSTMENT ACT OF
1938, AS AMENDED BY 54 STAT. 232. 

FN31  SECS. 6, 10(C) OF THE AMENDMENT OF MAY 26, 1941. 

FN32  SEC. 335(C) AS AMENDED JULY 26, 1939, 53 STAT. 1126, 7 U.S.C.
SEC. 1335(C). 

FN33  SEC. 339, 7 U.S.C. SEC. 1339. 

FN34  SEC. 301(B)(6)(A), (B), AS AMENDED JULY 2, 1940, 54 STAT. 727,
7 U.S.C. SEC. 1301(B)(6)(A), (B). 

FN35  BY AN AMENDMENT OF DECEMBER 26, 1941, 55 STAT. 872, EFFECTIVE
AS OF MAY 26, 1941, IT WAS PROVIDED THAT THE FARM MARKETING EXCESS
SHOULD NOT BE LARGER THAN THE AMOUNT BY WHICH THE ACTUAL PRODUCTION
EXCEEDS THE NORMAL PRODUCTION OF THE FARM WHEAT-ACREAGE ALLOTMENT, IF
THE PRODUCER ESTABLISHES SUCH ACTUAL PRODUCTION TO THE SATISFACTION OF
THE SECRETARY, PROVISION BEING MADE FOR ADJUSTMENT OF THE PENALTY IN
THE EVENT OF A DOWNWARD ADJUSTMENT IN THE AMOUNT OF THE FARM MARKETING
EXCESS. 

FN36  SECS. 1, 2, 3 OF THE AMENDMENT OF MAY 26, 1941. 

FN37  SECTION 302(B) HAD PROVIDED FOR A LOAN TO NON-COOPERATORS OF
60% OF THE BASIC LOAN RATE FOR COOPERATORS, WHICH IN 1940 WAS 64[.  SEE
UNITED STATES DEPARTMENT OF AGRICULTURE PRESS RELEASE, MAY 20, 1940. 
THE SAME PERCENTAGE WAS EMPLOYED IN SEC. 10(C) OF THE AMENDMENT OF MAY
26, 1941, AND THE INCREASE IN THE AMOUNT OF THE LOAN IS THE RESULT OF
AN INCREASE IN THE BASIC LOAN RATE EFFECTED BY SEC. 10(A) OF THE
AMENDMENT. 

FN38  WHEAT - 507, SEC. 728.251(B), 6 FEDERAL REGISTER 2695, 2701. 
..END :















EX PARTE QUIRIN, 317 U.S. 1 


ARGUED JULY 29-30, 1942.  - DECIDED JULY 31, 1942.  - PER CURIAM
DECISION FILED, JULY 31, 1942.  FN3 FULL OPINION FILED, OCTOBER 29,
1942.  FN4  - LEAVE TO FILE PETITIONS FOR HABEAS CORPUS IN THIS COURT
DENIED.  - ORDERS OF DISTRICT COURT (47 F.SUPP.  431), AFFIRMED. 

FN3  SEE FOOTNOTE, POST, P. 18. 

FN4  POST, P. 18. 


1.  A FEDERAL COURT MAY REFUSE TO ISSUE A WRIT OF HABEAS CORPUS WHERE
THE FACTS ALLEGED IN THE PETITION, IF PROVED, WOULD NOT WARRANT
DISCHARGE OF THE PRISONER.  P. 24. 

2.  PRESENTATION TO THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT OF COLUMBIA OF A PETITION FOR HABEAS CORPUS WAS THE
INSTITUTION OF A SUIT; AND DENIAL BY THAT COURT OF LEAVE TO FILE THE
PETITION WAS A JUDICIAL DETERMINATION OF A CASE OR CONTROVERSY
REVIEWABLE BY APPEAL TO THE U.S. COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA AND IN THIS COURT BY CERTIORARI.  P. 24. 

3.  THE PRESIDENT'S PROCLAMATION OF JULY 2, 1942, DECLARING THAT ALL
PERSONS WHO ARE CITIZENS OR SUBJECTS OF, OR WHO ACT UNDER THE DIRECTION
OF, ANY NATION AT WAR WITH THE UNITED STATES, AND WHO DURING TIME OF
WAR ENTER THE UNITED STATES THROUGH COASTAL OR BOUNDARY DEFENSES, AND
ARE CHARGED WITH COMMITTING OR ATTEMPTING TO COMMIT SABOTAGE,
ESPIONAGE, HOSTILE ACTS, OR VIOLATIONS OF THE LAW OF WAR, "SHALL BE
SUBJECT TO THE LAW OF WAR AND TO THE JURISDICTION OF MILITARY
TRIBUNALS," DOES NOT BAR ACCUSED PERSONS FROM ACCESS TO THE CIVIL
COURTS FOR THE PURPOSE OF DETERMINING THE APPLICABILITY OF THE
PROCLAMATION TO THE PARTICULAR CASE; NOR DOES THE PROCLAMATION, WHICH
IN TERMS DENIED TO SUCH PERSONS ACCESS TO THE COURTS, NOR THE ENEMY
ALIENAGE OF THE ACCUSED, FORECLOSE CONSIDERATION BY THE CIVIL COURTS OF
THE CONTENTION THAT THE CONSTITUTION AND LAWS OF THE UNITED STATES
FORBID THEIR TRIAL BY MILITARY COMMISSION.  P. 24. 

4.  IN TIME OF WAR BETWEEN THE UNITED STATES AND GERMANY,
PETITIONERS, WEARING GERMAN MILITARY UNIFORMS AND CARRYING EXPLOSIVES,
FUSES, AND INCENDIARY AND TIME DEVICES, WERE LANDED FROM GERMAN
SUBMARINES IN THE HOURS OF DARKNESS, AT PLACES ON THE EASTERN SEABOARD
OF THE UNITED STATES.  THEREUPON THEY BURIED THE UNIFORMS AND SUPPLIES,
AND PROCEEDED, IN CIVILIAN DRESS, TO VARIOUS PLACES IN THE UNITED
STATES.  ALL HAD RECEIVED INSTRUCTIONS IN GERMANY FROM AN OFFICER OF
THE GERMAN HIGH COMMAND TO DESTROY WAR INDUSTRIES AND WAR FACILITIES IN
THE UNITED STATES, FOR WHICH THEY OR THEIR RELATIVES IN GERMANY WERE TO
RECEIVE SALARY PAYMENTS FROM THE GERMAN GOVERNMENT.  THEY ALSO HAD BEEN
PAID BY THE GERMAN GOVERNMENT DURING THEIR COURSE OF TRAINING AT A
SABOTAGE SCHOOL, AND HAD WITH THEM, WHEN ARRESTED, SUBSTANTIAL AMOUNTS
OF UNITED STATES CURRENCY, WHICH HAD BEEN HANDED TO THEM BY AN OFFICER
OF THE GERMAN HIGH COMMAND, WHO HAD INSTRUCTED THEM TO WEAR THEIR
GERMAN UNIFORMS WHILE LANDING IN THE UNITED STATES.  SPECIFICATION 1 OF
THE CHARGES ON WHICH THEY WERE PLACED ON TRIAL BEFORE A MILITARY
COMMISSION CHARGED THAT THEY, "BEING ENEMIES OF THE UNITED STATES AND
ACTING FOR  ...  THE GERMAN REICH, A BELLIGERENT ENEMY NATION, SECRETLY
AND COVERTLY PASSED, IN CIVILIAN DRESS, CONTRARY TO THE LAW OF WAR,
THROUGH THE MILITARY AND NAVAL LINES AND DEFENSES OF THE UNITED STATES
...  AND WENT BEHIND SUCH LINES, CONTRARY TO THE LAW OF WAR, IN
CIVILIAN DRESS  ...  FOR THE PURPOSE OF COMMITTING  ...  HOSTILE ACTS,
AND, IN PARTICULAR, TO DESTROY CERTAIN WAR INDUSTRIES, WAR UTILITIES
AND WAR MATERIALS WITHIN THE UNITED STATES."  HELD: 

(1)  THAT THE SPECIFICATION SUFFICIENTLY CHARGED AN OFFENSE AGAINST
THE LAW OF WAR WHICH THE PRESIDENT WAS AUTHORIZED TO ORDER TRIED BY A
MILITARY COMMISSION; NOTWITHSTANDING THE FACT THAT, EVER SINCE THEIR
ARREST, THE COURTS IN THE JURISDICTIONS WHERE THEY ENTERED THE COUNTRY
AND WHERE THEY WERE ARRESTED AND HELD FOR TRIAL WERE OPEN AND
FUNCTIONING NORMALLY.  EX PARTE MILLIGAN, 4 WALL.  2, DISTINGUISHED. 
PP. 21, 23, 36, 48. 

(2)  THE PRESIDENT'S ORDER OF JULY 2, 1942, SO FAR AS IT LAYS DOWN
THE PROCEDURE TO BE FOLLOWED ON THE TRIAL BEFORE THE COMMISSION AND ON
THE REVIEW OF ITS FINDINGS AND SENTENCE, AND THE PROCEDURE IN FACT
FOLLOWED BY THE COMMISSION, WERE NOT IN CONFLICT WITH ARTICLES OF WAR
38, 43, 46, 50 1/2 AND 70.  P. 46. 

(3)  THE PETITIONERS WERE IN LAWFUL CUSTODY FOR TRIAL BY A MILITARY
COMMISSION; AND, UPON PETITIONS FOR WRITS OF HABEAS CORPUS, DID NOT
SHOW CAUSE FOR THEIR DISCHARGE.  P. 47. 

5.  ARTICLES 15, 38 AND 46 OF THE ARTICLES OF WAR, ENACTED BY
CONGRESS, RECOGNIZE THE "MILITARY COMMISSION" AS AN APPROPRIATE
TRIBUNAL FOR THE TRIAL AND PUNISHMENT OF OFFENSES AGAINST THE LAW OF
WAR NOT ORDINARILY TRIED BY COURTS-MARTIAL.  AND BY THE ARTICLES OF
WAR, ESPECIALLY ARTICLE 15, CONGRESS HAS EXPLICITLY PROVIDED, SO FAR AS
IT MAY CONSTITUTIONALLY DO SO, THAT MILITARY TRIBUNALS SHALL HAVE
JURISDICTION TO TRY OFFENSES AGAINST THE LAW OF WAR IN APPROPRIATE
CASES.  PP. 26-28. 

6.  CONGRESS, IN ADDITION TO MAKING RULES FOR THE GOVERNMENT OF OUR
ARMED FORCES, BY THE ARTICLES OF WAR HAS EXERCISED ITS AUTHORITY UNDER
ART. I, SEC. 8, CL. 10 OF THE CONSTITUTION TO DEFINE AND PUNISH
OFFENSES AGAINST THE LAW OF NATIONS, OF WHICH THE LAW OF WAR IS A PART,
BY SANCTIONING, WITHIN CONSTITUTIONAL LIMITATIONS, THE JURISDICTION OF
MILITARY COMMISSIONS TO TRY PERSONS FOR OFFENSES WHICH, ACCORDING TO
THE RULES AND PRECEPTS OF THE LAW OF NATIONS, AND MORE PARTICULARLY THE
LAW OF WAR, ARE COGNIZABLE BY SUCH TRIBUNALS.  AND BY ARTICLE OF WAR
15, CONGRESS HAS INCORPORATED BY REFERENCE, AS WITHIN THE JURISDICTION
OF MILITARY COMMISSIONS, ALL OFFENSES WHICH ARE DEFINED AS SUCH BY THE
LAW OF WAR AND WHICH MAY CONSTITUTIONALLY BE INCLUDED WITHIN THAT
JURISDICTION.  PP. 28, 30. 

7.  THIS COURT HAS ALWAYS RECOGNIZED AND APPLIED THE LAW OF WAR AS
INCLUDING THAT PART OF THE LAW OF NATIONS WHICH PRESCRIBES, FOR THE
CONDUCT OF WAR, THE STATUS, RIGHTS AND DUTIES OF ENEMY NATIONS AS WELL
AS OF ENEMY INDIVIDUALS.  P. 27. 

8.  THE OFFENSE CHARGED IN THIS CASE WAS AN OFFENSE AGAINST THE LAW
OF WAR, THE TRIAL OF WHICH BY MILITARY COMMISSION HAD BEEN AUTHORIZED
BY CONGRESS, AND WHICH THE CONSTITUTION DOES NOT REQUIRE TO BE TRIED BY
JURY.  EX PARTE MILLIGAN, 4 WALL.  2, DISTINGUISHED.  P. 45. 

9.  BY THE LAW OF WAR, LAWFUL COMBATANTS ARE SUBJECT TO CAPTURE AND
DETENTION AS PRISONERS OF WAR; UNLAWFUL COMBATANTS, IN ADDITION, ARE
SUBJECT TO TRIAL AND PUNISHMENT BY MILITARY TRIBUNALS FOR ACTS WHICH
RENDER THEIR BELLIGERENCY UNLAWFUL.  P. 30. 

10.  IT HAS LONG BEEN ACCEPTED PRACTICE BY OUR MILITARY AUTHORITIES
TO TREAT THOSE WHO, DURING TIME OF WAR, PASS SURREPTITIOUSLY FROM ENEMY
TERRITORY INTO OUR OWN, DISCARDING THEIR UNIFORMS UPON ENTRY, FOR THE
COMMISSION OF HOSTILE ACTS INVOLVING DESTRUCTION OF LIFE OR PROPERTY,
AS UNLAWFUL COMBATANTS PUNISHABLE AS SUCH BY MILITARY COMMISSION.  THIS
PRACTICE, ACCEPTED AND FOLLOWED BY OTHER GOVERNMENTS, MUST BE REGARDED
AS A RULE OR PRINCIPLE OF THE LAW OF WAR RECOGNIZED BY THIS GOVERNMENT
BY ITS ENACTMENT OF THE FIFTEENTH ARTICLE OF WAR.  P. 35. 

11.  CITIZENS OF THE UNITED STATES WHO ASSOCIATE THEMSELVES WITH THE
MILITARY ARM OF AN ENEMY GOVERNMENT, AND WITH ITS AID, GUIDANCE AND
DIRECTION ENTER THIS COUNTRY BENT ON HOSTILE ACTS, ARE ENEMY
BELLIGERENTS WITHIN THE MEANING OF THE HAGUE CONVENTION AND THE LAW OF
WAR.  P. 37. 

12.  EVEN WHEN COMMITTED BY A CITIZEN, THE OFFENSE HERE CHARGED IS
DISTINCT FROM THE CRIME OF TREASON DEFINED IN ARTICLE III, SEC. 3 OF
THE CONSTITUTION, SINCE THE ABSENCE OF UNIFORM ESSENTIAL TO ONE IS
IRRELEVANT TO THE OTHER.  P. 38. 

13.  ARTICLE III, SEC. 2, AND THE FIFTH AND SIXTH AMENDMENTS OF THE
CONSTITUTION DID NOT EXTEND THE RIGHT TO DEMAND A JURY TO TRIALS BY
MILITARY COMMISSION OR REQUIRE THAT OFFENSES AGAINST THE LAW OF WAR,
NOT TRIABLE BY JURY AT COMMON LAW, BE TRIED ONLY IN CIVIL COURTS.  P.
38. 

14.  SECTION 2 OF THE ACT OF CONGRESS OF APRIL 10, 1806, DERIVED FROM
THE RESOLUTION OF THE CONTINENTAL CONGRESS OF AUGUST 21, 1776, AND
WHICH IMPOSED THE DEATH PENALTY ON ALIEN SPIES "ACCORDING TO THE LAW
AND USAGE OF NATIONS, BY SENTENCE OF A GENERAL COURT MARTIAL," WAS A
CONTEMPORARY CONSTRUCTION OF ARTICLE III, SEC. 2 OF THE CONSTITUTION
AND OF THE FIFTH AND SIXTH AMENDMENTS, AS NOT FORECLOSING TRIAL BY
MILITARY TRIBUNALS, WITHOUT A JURY, FOR OFFENSES AGAINST THE LAW OF WAR
COMMITTED BY ENEMIES NOT IN OR ASSOCIATED WITH OUR ARMED FORCES.  IT IS
A CONSTRUCTION WHICH HAS BEEN FOLLOWED SINCE THE FOUNDING OF OUR
GOVERNMENT, AND IS NOW CONTINUED IN THE 82ND ARTICLE OF WAR.  SUCH A
CONSTRUCTION IS ENTITLED TO GREAT RESPECT.  P. 41. 

15.  SINCE VIOLATION OF THE LAW OF WAR IS ADEQUATELY ALLEGED IN THIS
CASE, THE COURT FINDS NO OCCASION TO CONSIDER THE VALIDITY OF OTHER
SPECIFICATIONS BASED ON THE 81ST AND 82ND ARTICLES OF WAR, OR TO
CONSTRUE THOSE ARTICLES OR DECIDE UPON THEIR CONSTITUTIONALITY AS SO
CONSTRUED.  P. 46. 

EX PARTE QUIRIN ET AL. FN1  AND UNITED STATES EX REL. QUIRIN ET AL. V.
COX, PROVOST MARSHAL.  FN2 

NOS. - , ORIGINAL.  MOTIONS FOR LEAVE TO FILE PETITIONS FOR WRITS OF
HABEAS CORPUS 

NOS. 1-7.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA. 

FN1  NO. - , ORIGINAL, EX PARTE RICHARD QUIRIN; NO. - , ORIGINAL, EX
PARTE HERBERT HANS HAUPT; NO. - , ORIGINAL, EX PARTE EDWARD JOHN
KERLING; NO. - , ORIGINAL, EX PARTE ERNEST PETER BURGER; NO. - ,
ORIGINAL, EX PARTE HEINRICH HARM HEINCK; NO. - , ORIGINAL, EX PARTE
WERNER THIEL; AND NO. - , ORIGINAL, EX PARTE HERMANN OTTO NEUBAUER. 

FN2  NO. 1, UNITED STATES EX REL. QUIRIN V. COX, PROVOST MARSHALL;
NO. 2, UNITED STATES EX REL. HAUPT V. COX, PROVOST MARSHALL; NO. 3,
UNITED STATES EX REL. KERLING V. COX, PROVOST MARSHALL; NO. 4, UNITED
STATES EX REL. BURGER V. COX, PROVOST MARSHALL; NO. 5, UNITED STATES EX
REL. HEINCK V. COX, PROVOST MARSHALL; NO. 6, UNITED STATES EX REL.
THIEL V. COX, PROVOST MARSHALL; AND NO. 7 UNITED STATES EX REL.
NEUBAUER V. COX, PROVOST MARSHAL. 

THE COURT MET IN SPECIAL TERM, ON WEDNESDAY, JULY 29, 1942, PURSUANT
TO A CALL BY THE CHIEF JUSTICE HAVING THE APPROVAL OF ALL THE ASSOCIATE
JUSTICES. 

THE CHIEF JUSTICE ANNOUNCED THAT THE COURT HAD CONVENED IN SPECIAL
TERM IN ORDER THAT CERTAIN APPLICATIONS MIGHT BE PRESENTED TO IT AND
ARGUMENT BE HEARD IN RESPECT THERETO. 

IN RESPONSE TO AN INQUIRY BY THE CHIEF JUSTICE, THE ATTORNEY GENERAL
STATED THAT THE CHIEF JUSTICE'S SON, MAJOR LAUSON H. STONE, U.S.A.,
HAD, UNDER ORDERS, ASSISTED DEFENSE COUNSEL BEFORE THE MILITARY
COMMISSION, IN THE CASE RELATIVE TO WHICH THE SPECIAL TERM OF THE COURT
WAS CALLED; BUT THAT MAJOR STONE HAD HAD NO CONNECTION WITH THIS
PROCEEDING BEFORE THIS COURT.  THEREFORE, SAID THE ATTORNEY GENERAL,
COUNSEL FOR ALL THE RESPECTIVE PARTIES IN THIS PROCEEDING JOINED IN
URGING THE CHIEF JUSTICE TO PARTICIPATE IN THE CONSIDERATION AND
DECISION OF THE MATTERS TO BE PRESENTED.  COLONEL KENNETH C. ROYALL, OF
COUNSEL FOR THE PETITIONERS, CONCURRED IN THE STATEMENT AND REQUEST OF
THE ATTORNEY GENERAL. 

THE APPLICATIONS, SEVEN IN NUMBER (ANTE, P. 1, N. 1), FIRST TOOK THE
FORM OF PETITIONS TO THIS COURT FOR LEAVE TO FILE PETITIONS FOR WRITS
OF HABEAS CORPUS TO SECURE THE RELEASE OF THE PETITIONERS FROM THE
CUSTODY OF BRIGADIER GENERAL ALBERT L. COX, U.S.A., PROVOST MARSHAL OF
THE MILITARY DISTRICT OF WASHINGTON, WHO, PURSUANT TO ORDERS, WAS
HOLDING THEM IN THAT DISTRICT FOR AND DURING A TRIAL BEFORE A MILITARY
COMMISSION CONSTITUTED BY AN ORDER OF THE PRESIDENT OF THE UNITED
STATES.  DURING THE COURSE OF THE ARGUMENT, THE PETITIONERS WERE
PERMITTED TO FILE PETITIONS FOR WRITS OF CERTIORARI, DIRECTED TO THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, TO REVIEW,
BEFORE JUDGMENT BY THAT COURT, ORDERS THEN BEFORE IT BY APPEAL BY WHICH
THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HAD DENIED APPLICATIONS
FOR LEAVE TO FILE PETITIONS FOR WRITS OF HABEAS CORPUS. 

AFTER THE ARGUMENT, THIS COURT DELIVERED A PER CURIAM OPINION,
DISPOSING OF THE CASES (FOOTNOTE, P. 18).  A FULL OPINION, WHICH IS THE
BASIS OF THIS REPORT, WAS FILED WITH THE CLERK OF THE COURT ON OCTOBER
29, 1942, POST, P. 18. 

ENEMY ALIENS MAY RESORT TO HABEAS CORPUS.  EX PARTE MILLIGAN, 4
WALL.  2, AT PP. 115-121; KAUFMAN V. EISENBERG, 32 N.Y.S.2D 450; EX
PARTE OROZCO, 201 F. 106; EX PARTE RISSE, 257 F. 102; 55 HARVARD L.
REV. 1058; 31 OPS.  ATTY.  GEN. 361. 

50 U.S.C. SEC. 21 RELATES ONLY TO INTERNMENT AND DOES NOT AUTHORIZE A
PROCLAMATION DENYING TO ALIEN ENEMIES THE RIGHT TO APPLY FOR WRIT OF
HABEAS CORPUS. 

THE 82ND ARTICLE OF WAR, WHICH PROVIDES FOR TRIAL AND PUNISHMENT OF
SPIES BY COURTS-MARTIAL OR BY MILITARY COMMISSION, MUST BE CONSTRUED AS
APPLYING ONLY TO OFFENSES COMMITTED IN CONNECTION WITH ACTUAL MILITARY
OPERATIONS, OR ON OR NEAR MILITARY FORTIFICATIONS, ENCAMPMENTS, OR
INSTALLATIONS. 

MERE PROOF THAT PERSONS IN UNIFORM LANDED ON THE AMERICAN COAST FROM
A SUBMARINE, OR OTHERWISE, DOES NOT SUPPLY ANY OF THE ELEMENTS OF
SPYING.  NONE OF THE PETITIONERS COMMITTED ANY ACTS ON, NEAR, OR IN
CONNECTION WITH ANY FORTIFICATIONS, POSTS, QUARTERS, OR ENCAMPMENTS OF
THE ARMY; OR ON, NEAR, OR IN CONNECTION WITH ANY OTHER MILITARY
INSTALLATIONS; OR AT ANY LOCATION WITHIN THE ZONE OF OPERATIONS.  2
WHEATON, INT. L., 6TH ED., 766; 2 OPPENHEIM, INT. L., 1905 ED., 161;
HALLECK, INT. L., 3D ED., 573.  IN THE ABSENCE OF EVIDENCE OF ANY ACTS
WITHIN THIS ZONE, THERE IS NO AUTHORITY FOR A MILITARY COMMISSION UNDER
ARTICLE OF WAR 82. 

THAT THE ACTS ALLEGED TO HAVE BEEN COMMITTED BY THE PETITIONERS IN
VIOLATION OF THE 81ST ARTICLE WERE NOT IN THE ZONE OF MILITARY
OPERATIONS WOULD ALSO PRECLUDE THE JURISDICTION OF A MILITARY
COMMISSION TO TRY THIS OFFENSE.  SEE 18 U.S.C. SEC. 1; 50 U.S.C. SECS.
31-42, 101-106.  THE PETITIONERS WERE ARRESTED BY THE CIVIL
AUTHORITIES, WAIVED ARRAIGNMENT BEFORE A CIVIL COURT, AND ALSO WAIVED
REMOVAL TO ANOTHER FEDERAL JUDICIAL DISTRICT.  THE CIVIL COURTS THEREBY
ACQUIRED JURISDICTION; AND THERE WAS NO AUTHORITY FOR THE MILITARY
AUTHORITIES TO OUST THESE COURTS OF THIS JURISDICTION. 

THE RULES OF LAND WARFARE DESCRIBE NO SUCH OFFENSE AS THAT SET FORTH
IN THE SPECIFICATIONS OF THE FIRST CHARGE.  THESE RULES WERE PREPARED
IN 1940 UNDER THE DIRECTION OF THE JUDGE ADVOCATE GENERAL, AND PURPORT
TO INCLUDE ALL OFFENSES AGAINST THE LAW OF WAR. 

THE SO-CALLED LAW OF WAR IS A SPECIES OF INTERNATIONAL LAW ANALOGOUS
TO COMMON LAW.  THERE IS NO COMMON LAW CRIME AGAINST THE UNITED
STATES. 

THE FIRST CHARGE SETS OUT NO MORE THAN THE OFFENSES OF SABOTAGE AND
ESPIONAGE, WHICH ARE SPECIFICALLY COVERED BY 50 U.S.C., SECS. 31-42,
101-106, AND WHICH ARE TRIABLE BY THE CIVIL COURTS. 

THE CHARGE OF CONSPIRACY CAN NOT STAND IF THE OTHER CHARGES FALL. 
FURTHERMORE, 18 U.S.C. 88 DEALS EXPRESSLY WITH THE OFFENSE OF
CONSPIRACY, AND THIS CHARGE IS NOT TRIABLE BY A MILITARY COMMISSION. 

THE CONDUCT OF THE PETITIONERS WAS NOTHING MORE THAN PREPARATION TO
COMMIT THE CRIME OF SABOTAGE.  THE OBJECTS OF SABOTAGE HAD NEVER BEEN
SPECIFICALLY SELECTED AND THE PLAN DID NOT CONTEMPLATE ANY ACT OF
SABOTAGE WITHIN A PERIOD OF THREE MONTHS.  THESE FACTS ARE NOT EVEN
SUFFICIENT TO CONSTITUTE AN ATTEMPT TO COMMIT SABOTAGE. 

THE CIVIL COURTS WERE FUNCTIONING BOTH IN THE LOCALITIES IN WHICH THE
OFFENSES WERE CHARGED TO HAVE BEEN COMMITTED AND IN THE DISTRICT OF
COLUMBIA WHERE THE ALLEGED OFFENSES WERE BEING TRIED.  IN THESE
LOCALITIES THERE WAS NO MARTIAL LAW AND NO OTHER CIRCUMSTANCES WHICH
WOULD JUSTIFY ACTION BY A MILITARY TRIBUNAL. 

THE ONLY WAY IN WHICH THE PETITIONERS AS A PRACTICAL MATTER COULD
RAISE THE JURISDICTIONAL QUESTION WAS BY PETITION FOR WRIT OF HABEAS
CORPUS. 

THE MILITARY COMMISSION HAD NO JURISDICTION OVER PETITIONERS. 
ARTICLE OF WAR 2 DEFINES THE PERSONS WHO ARE SUBJECT TO MILITARY LAW,
AND INCLUDES MEMBERS OF THE ARMED FORCES AND OTHER DESIGNATED PERSONS. 
MILITARY COURTSMARTIAL AND OTHER MILITARY TRIBUNALS HAVE NO
JURISDICTION TO TRY ANY OTHER PERSON FOR OFFENSES IN VIOLATION OF THE
ARTICLES OF WAR, EXCEPT IN THE CASES OF ARTICLES 81 AND 82.  THE SAME
IS TRUE OF ANY ALLEGED VIOLATIONS OF THE LAW OF WAR.  EX PARTE
MILLIGAN, SUPRA; 31 OPS.  ATTY.  GEN. 356. 

CIVIL PERSONS WHO COMMIT ACTS IN OTHER LOCALITIES THAN THE ZONE OF
ACTIVE MILITARY OPERATIONS ARE TRIABLE ONLY IN THE CIVIL COURTS AND
UNDER THE CRIMINAL STATUTES.  WHILE IT IS TRUE THAT THE TERRITORY ALONG
THE COAST WAS PATROLLED BY THE COAST GUARD, THE PATROL WAS UNARMED.  IT
WOULD BE A STRAINED USE OF LANGUAGE TO SAY THAT THIS PATROL MADE THE
BEACH A MILITARY LINE OR PART OF THE ZONE OF ACTIVE OPERATIONS. 

NOR IS THE SITUATION CHANGED BY THE FACT THAT ON THE LONG ISLAND
BEACH, SOME DISTANCE AWAY, WAS LOCATED A SIGNAL CORPS PLATOON ENGAGED
IN OPERATING A RADIO LOCATOR STATION.  THE EVIDENCE SHOWS THAT THIS
PLATOON DID NOT PATROL THE BEACH AND WAS NOT ENGAGED IN ANY MILITARY
OFFENSIVE OR DEFENSIVE OPERATION AT THE TIME THE PETITIONERS LANDED. 
THE WHOLE UNITED STATES IS DIVIDED INTO DEFENSE AREAS OR SECTORS AND
THE ORDERS THEREFOR ARE SUBSTANTIALLY SIMILAR TO THOSE PROVIDING FOR
THE SOUTHERN AND EASTERN DEFENSE SECTORS.  IF THE PROSECUTION WERE
CORRECT IN ITS CONTENTION THAT THE ISSUANCE OF ORDERS FOR THESE SECTORS
CREATES A ZONE OF ACTIVE MILITARY OPERATIONS, THEN THE ENTIRE UNITED
STATES IS A ZONE OF ACTIVE MILITARY OPERATIONS, AND PERSONS LOCATED
THEREIN ARE SUBJECT TO THE JURISDICTION OF MILITARY TRIBUNALS.  THE
FLORIDA AND LONG ISLAND SEACOASTS WERE NOT AND ARE NOT IN ANY TRUE
SENSE ZONES OF ACTIVE MILITARY OPERATIONS, BUT ARE INSTEAD PARTS OF THE
ZONE OF THE INTERIOR AS DEFINED IN THE FIELD SERVICE REGULATIONS. 

MARTIAL LAW IS A MATTER OF FACT AND NOT A MATTER OF PROCLAMATION; AND
A PROCLAMATION ASSUMING TO DECLARE MARTIAL LAW IS INVALID UNLESS THE
FACTS THEMSELVES SUPPORT IT.  SEE STERLING V. CONSTANTIN, 287 U.S.
378. 

THE PRESIDENT'S ORDER AND PROCLAMATION DID NOT CREATE A STATE OF
MARTIAL LAW IN THE ENTIRE EASTERN PART OF THE UNITED STATES.  IN VIEW
OF THE FACTS, THERE WAS NO ADEQUATE REASON, EITHER OF MILITARY
NECESSITY OR OTHERWISE, FOR DEPRIVING ANY PERSONS IN THAT AREA OF THE
BENEFIT OF CONSTITUTIONAL PROVISIONS GUARANTEEING AN ORDINARY AND
PROPER TRIAL BEFORE A CIVIL COURT.  EX PARTE MILLIGAN, SUPRA. 

THE PRESIDENT HAD NO AUTHORITY, IN ABSENCE OF STATUTE, TO ISSUE THE
PROCLAMATION.  IN ENGLAND, THE PRACTICE HAS BEEN TO OBTAIN AUTHORITY OF
PARLIAMENT FOR SIMILAR ACTION.  4 AND 5 GEO. V, C. 29; 5 AND 6 GEO. V,
C. 8; 10 AND 11 GEO. V, C. 55; 2 AND 3 GEO. VI, (1939) C. 62.  CONGRESS
ALONE CAN SUSPEND THE WRIT OF HABEAS CORPUS, AND THEN ONLY IN CASES OF
REBELLION OR INVASION.  CONST., ART. I, SEC. 9, CL. 2; EX PARTE
MERRYMAN, 17 FED. CAS. 114; EX PARTE BOLLMAN, 4 CRANCH 101; MCCALL V.
MCDOWELL, FED. CAS. NO. 8673; EX PARTE BENEDICT, 3 FED. CAS. NO. 1292;
WILLOUGHBY, CONST. L., SEC. 1057. 

THE PROCLAMATION WAS ISSUED AFTER THE COMMISSION OF THE ACTS WHICH
ARE CHARGED AS CRIMES AND IS EX POST FACTO.  CONGRESS ITSELF COULD NOT
HAVE PASSED VALID LEGISLATION INCREASING THE PENALTY FOR ACTS ALREADY
COMMITTED.  CONST., ART. I, SEC. 9, CL. 3; THOMPSON V. UTAH, 170 U.S.
343; BURGESS V. SALMON, 97 U.S. 384. 

THE PROCLAMATION IS VIOLATIVE OF THE FIFTH AND SIXTH AMENDMENTS, OF
ART. III, SEC. 2, CL. 3, AND OF ART. I, SEC. 9, CL. 2, OF THE
CONSTITUTION. 

THE ORDER IS INVALID BECAUSE IT VIOLATES EXPRESS PROVISIONS OF
ARTICLE OF WAR 38 RESPECTING RULES OF EVIDENCE; AND IS INCONSISTENT
WITH PROVISIONS OF ARTICLE 43 REQUIRING CONCURRENCE OF THREE-FOURTHS OF
THE COMMISSION'S MEMBERS FOR CONVICTION OR SENTENCE. 

ARTICLE 70 REQUIRES A PRELIMINARY HEARING LIKE ONE BEFORE A
COMMITTING MAGISTRATE, WITH LIBERTY OF THE ACCUSED TO CROSS-EXAMINE. 
THIS IS IGNORED BY THE ORDER. 

WHEREAS ARTICLE 50 1/2 REQUIRES ACTION BY THE BOARD OF REVIEW AND THE
RECOMMENDATION OF THE JUDGE ADVOCATE GENERAL BEFORE THE CASE IS
SUBMITTED TO THE PRESIDENT, THE ORDER REQUIRES THAT THE COMMISSION
TRANSMIT THE RECORD OF THE TRIAL, INCLUDING ANY JUDGMENT OR SENTENCE,
DIRECTLY TO THE PRESIDENT FOR HIS ACTION THEREON. 

THE ORDER HAS MADE IT IMPOSSIBLE TO COMPLY WITH THE STATUTORY
PROVISIONS, BY DIRECTING THE JUDGE ADVOCATE GENERAL (AND THE ATTORNEY
GENERAL) TO CONDUCT THE PROSECUTION, THEREBY DISQUALIFYING THE JUDGE
ADVOCATE GENERAL AND HIS SUBORDINATES FROM ACTING AS A REVIEWING
AUTHORITY.  THE PROCEEDINGS DISCLOSE THAT THE JUDGE ADVOCATE GENERAL
HAS IN FACT ASSISTED IN THE CONDUCT OF THE PROSECUTION. 

THIS IS A MATERIAL VIOLATION OF THE STATUTORY RIGHTS AFFORDED ACCUSED
PERSONS BY THE ARTICLES OF WAR.  THE PROVISIONS OF ARTICLES 46 AND 50
1/2 ARE THE METHODS OF APPEAL BY A PERSON TRIED BEFORE A MILITARY
COMMISSION.  THE ORDER DEPRIVES THEM OF THIS METHOD OF APPEAL. 

A CARDINAL PURPOSE OF ARTICLE 38 WAS TO PROVIDE A PROCEDURE FOR
MILITARY COMMISSIONS, WITH THE PROVISO THAT NOTHING IN THE PROCEDURE
SHALL BE "CONTRARY TO OR INCONSISTENT WITH" THE ARTICLES OF WAR. 

THE PRESIDENT HAD NO AUTHORITY TO DELEGATE THE RULEMAKING POWER UNDER
ART. 38 TO THE COMMISSION.  IN VIOLATION OF ARTICLES 38 AND 18 THE
PETITIONERS WERE DENIED THE RIGHT TO CHALLENGE A MEMBER OF THE
COMMISSION PEREMPTORILY.  CONFESSIONS OF THE DEFENDANTS WERE IMPROPERLY
ADMITTED AGAINST EACH OTHER. 

IF IT BE SUGGESTED THAT THESE ARE MATTERS WHICH DO NOT AFFECT THE
JURISDICTION OF THE COMMISSION OR THE VALIDITY OF THE PROCEEDINGS, BUT
ARE MERELY QUESTIONS WHICH MAY BE RAISED ON APPEAL OR REVIEW, THE
ANSWER IS THAT THE ORDER DEPRIVED THE PETITIONERS OF SUCH APPEAL OR
REVIEW. 

CITING EX PARTE MILLIGAN, 4 WALL.  2; STERLING V. CONSTANTIN, 287
U.S. 378; CALDWELL V. PARKER, 252 U.S. 376; KAHN V. ANDERSON, 255 U.S.
1; HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398; CARTER V.
CARTER COAL CO., 298 U.S. 330; 55 HARVARD L. REV. 1295; 31 OPS.  A.G.
363. 

ENEMIES WHO INVADE THE COUNTRY IN TIME OF WAR HAVE NO PRIVILEGE TO
QUESTION THEIR DETENTION BY HABEAS CORPUS.  HALSBURY'S LAWS OF ENGLAND,
2D ED., VOL. IX, P. 701, PAR. 1200; P. 710, PAR. 1212; BLACKSTONE, 21
ED., VOL. 1, C. 10, P. 372; SYLVESTER'S CASE, 7 MOD. 150(1703); REX V.
KNOCKALOE CAMP COMMANDANT, 87 L.J.K.B.N.S. 43(1917); REX V. SCHIEVER, 2
BURR.  765(1759); FURLY V. NEWNHAM, 2 DOUG.  K.B. 419(1780); THREE
SPANISH SAILORS, 2 W.B. 1324(1779); REX V. SUPERINTENDENT OF VINE
STREET POLICE STATION, (1916) 1 K.B. 268; SCHAFFENIUS V. GOLDBERG,
(1916) 1 K.B. 284; RULES OF LAND WARFARE, PARS. 9, 70, 351, 352, 356. 
IF PRISONERS OF WAR ARE DENIED THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS, IT IS INESCAPABLE THAT PETITIONERS ARE NOT ENTITLED TO IT.  BY
REMOVAL OF THEIR UNIFORMS BEFORE THEIR CAPTURE, THEY LOST THE POSSIBLE
ADVANTAGES OF BEING PRISONERS OF WAR.  SURELY, THEY DID NOT THUS
ACQUIRE A PRIVILEGE EVEN PRISONERS OF WAR DO NOT HAVE.    WHATEVER
PRIVILEGE MAY BE ACCORDED TO SUCH ENEMIES IS ACCORDED BY SUFFERANCE,
AND MAY BE TAKEN AWAY BY THE PRESIDENT.  ALIEN ENEMIES - EVEN THOSE
LAWFULLY RESIDENT WITHIN THE COUNTRY - HAVE NO PRIVILEGE OF HABEAS
CORPUS TO INQUIRE INTO THE CAUSE OF THEIR DETENTION AS DANGEROUS
PERSONS.  EX PARTE GRABER, 247 F. 882; MINOTTO V. BRADLEY, 252 F. 600. 
SEE ALSO EX PARTE WEBER, (1916) 1 K.B. 280, AFFIRMED (1916) 1 A.C. 421;
REX V. SUPERINTENDENT OF VINE STREET POLICE STATION, (1916) 1 K.B. 268;
REX V. KNOCKALOE CAMP COMMANDANT, 87 L.J.K.B.N.S. 43; RE CHAMRYK, 25
MAN.  L. REP. 50; RE BERANEK, 33 ONT.  L. REP. 139; RE GOTTESMAN, 41
ONT.  L. REP. 547; GUSETU V. DATE, 17 QUEBEC PR. 95; ACT OF JULY 6,
1798, 50 U.S.C. SEC. 21; DE LACEY V. UNITED STATES, 249 F. 625. 

THE FACT IS THAT ORDINARY CONSTITUTIONAL DOCTRINES DO NOT IMPEDE THE
FEDERAL GOVERNMENT IN ITS DEALINGS WITH ENEMIES.  BROWN V. UNITED
STATES, 8 CRANCH 110, 121-123; MILLER V. UNITED STATES, 11 WALL.  268;
JURAGUA IRON CO. V. UNITED STATES, 212 U.S. 297; DE LACEY V. UNITED
STATES, 249 F. 625. 

THE PRESIDENT'S POWER OVER ENEMIES WHO ENTER THIS COUNTRY IN TIME OF
WAR, AS ARMED INVADERS INTENDING TO COMMIT HOSTILE ACTS, MUST BE
ABSOLUTE. 

IN HIS PROCLAMATION, THE PRESIDENT TOOK THE ACTION HE DEEMED
NECESSARY TO DEAL WITH PERSONS HE AND THE ARMED FORCES UNDER HIS
COMMAND REASONABLY BELIEVED TO BE ENEMY INVADERS.  HE DECLARED THAT ALL
SUCH PERSONS SHOULD BE SUBJECT TO THE LAW OF WAR AND TRIABLE BY
MILITARY TRIBUNALS.  HE REMOVED WHATEVER PRIVILEGE SUCH PERSONS MIGHT
OTHERWISE HAVE HAD TO SEEK ANY REMEDY OR MAINTAIN ANY PROCEEDING IN THE
COURTS OF THE UNITED STATES. 

THESE ACTS WERE CLEARLY WITHIN HIS POWER AS COMMANDER IN CHIEF AND
CHIEF EXECUTIVE, AND WERE LAWFUL ACTS OF THE SOVEREIGN - THE GOVERNMENT
OF THE UNITED STATES - IN TIME OF WAR. 

THE PRISONERS ARE ENEMIES WHO FALL SQUARELY WITHIN THE TERMS OF THE
PRESIDENT'S PROCLAMATION.  CF. TRADING WITH THE ENEMY ACT OF 1917,
SECS. 2, 7(B). 

TO WHATEVER EXTENT THE PRESIDENT HAS POWER TO BAR ENEMIES FROM
SEEKING WRITS OF HABEAS CORPUS, HE CLEARLY HAS POWER TO DEFINE "ENEMY"
AS INCLUDING A CLASS AS BROAD AS THAT DESCRIBED IN THE TRADING WITH THE
ENEMY ACT. 

EVEN IF IT BE ASSUMED THAT BURGER AND HAUPT ARE CITIZENS OF THE
UNITED STATES, THIS DOES NOT CHANGE THEIR STATUS AS "ENEMIES" OF THE
UNITED STATES.  HALL, INT. L. (1909) 490-497; 2 OPPENHEIM, INT. L.
(1940) 216-218.  THIS RULE APPLIES TO ALL PERSONS LIVING IN ENEMY
TERRITORY, EVEN IF THEY ARE TECHNICALLY UNITED STATES CITIZENS.  MILLER
V. UNITED STATES, 11 WALL.  268; JURAGUA IRON CO. V. UNITED STATES, 212
U.S. 297, 308.  THE RETURN OF BURGER AND HAUPT TO THE UNITED STATES CAN
NOT BY ANY POSSIBILITY BE CONSTRUED AS AN ATTEMPT TO DIVEST THEMSELVES
OF THEIR ENEMY CHARACTER BY REASSUMING THEIR DUTIES AS CITIZENS. 

THE OFFENSES CHARGED AGAINST THESE PRISONERS ARE WITHIN THE
JURISDICTION OF THIS MILITARY COMMISSION.  ARTICLES OF WAR 81 AND 82(10
U.S.C., SECS. 1553-4). 

THE LAW OF WAR, LIKE CIVIL LAW, HAS A GREAT LEX NON SCRIPTA, ITS OWN
COMMON LAW.  THIS "COMMON LAW OF WAR" (EX PARTE VALLANDIGHAM, 1 WALL. 
243, 249) IS A CENTURIESOLD BODY OF LARGELY UNWRITTEN RULES AND
PRINCIPLES OF INTERNATIONAL LAW WHICH GOVERNS THE BEHAVIOR OF BOTH
SOLDIERS AND CIVILIANS DURING TIME OF WAR.  WINTHROP, MILITARY LAW AND
PRECEDENTS (1920), 17, 41, 42, 773 FF. 

THE LAW OF WAR HAS ALWAYS BEEN APPLIED IN THIS COUNTRY.  THE OFFENSE
FOR WHICH MAJOR ANDRE WAS CONVICTED - PASSING THROUGH OUR LINES IN
CIVILIAN DRESS, WITH HOSTILE PURPOSE - IS ONE OF THE MOST DANGEROUS
OFFENSES KNOWN TO THE LAW OF WAR.  THE OTHER OFFENSES HERE CHARGED -
APPEARING BEHIND THE LINES IN CIVILIAN GUISE, SPYING, RELIEVING THE
ENEMY, AND CONSPIRACY - ARE EQUALLY SERIOUS AND ALSO DEMAND SEVERE
PUNISHMENT.  SEE DIGEST OF OPINIONS OF JUDGE ADVOCATE GENERAL, HOWLAND
(1912), PP. 1070-1071.  CF. INSTRUCTION FOR THE GOVERNMENT OF ARMIES OF
THE UNITED STATES IN THE FIELD (G.O. 100, A.G.O. 1863) SEC. I, PAR. 13;
DAVIS, MILITARY LAW OF THE UNITED STATES (1913), P. 310; RULES OF LAND
WARFARE, SECS. 348, 351, 352; ARTICLE OF WAR 15. 

THE DEFINITION OF LAWFUL BELLIGERENTS APPEARING IN THE RULES OF LAND
WARFARE (RULE 9) WAS ADOPTED BY THE SIGNATORIES TO THE HAGUE CONVENTION
IN ARTICLE I, ANNEX TO HAGUE CONVENTION NO. IV OF OCT. 18, 1907, TREATY
SERIES NO. 539, AND WAS RATIFIED BY THE SENATE OF THE UNITED STATES. 
36 STAT. 2295.  OUR GOVERNMENT HAS THUS RECOGNIZED THE EXISTENCE OF A
CLASS OF UNLAWFUL BELLIGERENTS.  THESE UNLAWFUL BELLIGERENTS, UNDER
ARTICLE OF WAR 15, ARE PUNISHABLE UNDER THE COMMON LAW OF WAR.  SEE
TEXT WRITERS, SUPRA; EX PARTE VALLANDIGHAM, 1 WALL.  243, 249. 

MILITARY COMMISSIONS IN THE UNITED STATES DERIVE THEIR AUTHORITY FROM
THE CONSTITUTION AS WELL AS STATUTES, MILITARY USAGE, AND THE COMMON
LAW OF WAR.  CONST., ART. I; ART. II, SEC. 2(1).  IN CONGRESS AND THE
PRESIDENT TOGETHER IS LODGED THE POWER TO WAGE WAR SUCCESSFULLY.  HOME
BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 426. 

MILITARY COMMISSIONS HAVE BEEN ACKNOWLEDGED BY CONGRESSIONAL STATUTES
WHICH HAVE RECOGNIZED THEM AS COURTS OF MILITARY LAW.  ARTICLES OF WAR
15, 38, 81, 82; 10 U.S.C. SECS. 1486, 1509, 1553, 1554.  THEIR
AUTHORITY HAS ALSO BEEN RECOGNIZED IN PRESIDENTIAL PROCLAMATIONS AND
ORDERS, RULINGS OF THE COURTS, AND OPINIONS OF THE ATTORNEYS GENERAL. 

THE OFFENSES CHARGED HERE ARE UNQUESTIONABLY WITHIN THE JURISDICTION
OF MILITARY COMMISSIONS.  THE PRISONERS ARE CHARGED WITH VIOLATING
ARTICLES OF WAR 81 AND 82(10 U.S.C., SECS. 1553-4) WHICH SPECIFICALLY
PROVIDE FOR TRIAL BY MILITARY COMMISSION.  THEY ARE ALSO CHARGED WITH
VIOLATING THE COMMON LAW OF WAR IN CROSSING OUR MILITARY LINES AND
APPEARING BEHIND OUR LINES IN CIVILIAN DRESS, WITH HOSTILE PURPOSE, AND
WITH CONSPIRING TO COMMIT ALL THE ABOVE VIOLATIONS, WHICH IN ITSELF
CONSTITUTES AN ADDITIONAL VIOLATION OF THE LAW OF WAR.  THE
JURISDICTION OF MILITARY COMMISSIONS OVER THESE OFFENSES UNDER THE LAW
OF WAR (IN ADDITION TO THE SPECIFIC OFFENSES CODIFIED IN THE ARTICLES
OF WAR) IS EXPRESSLY RECOGNIZED BY ARTICLE OF WAR 15(10 U.S.C. SEC.
1486). 

THE MILITARY COMMISSION HAS JURISDICTION OVER THE PERSONS OF THESE
PRISONERS.  EX PARTE MILLIGAN, 4 WALL.  2, 123, 138-139.  THE OFFENSES
CHARGED HERE ARISE IN THE LAND OR NAVAL FORCES.  THE LAW OF WAR
EMBRACES CITIZENS AS WELL AS ALIENS (ENEMY OR NOT); AND CIVILIANS AS
WELL AS SOLDIERS ARE ALL WITHIN THEIR SCOPE.  INDEED IT WAS FOR THE
VERY PURPOSE OF TRYING CIVILIANS FOR WAR CRIMES THAT MILITARY
COMMISSIONS FIRST CAME INTO USE.  WINTHROP, MILITARY LAW AND PRECEDENTS
(1920) 831-841. 

THIS BROAD COMPREHENSION OF PERSONS IS WELL WITHIN THE LIMITS OF THE
EXCEPTING CLAUSE OF THE FIFTH AMENDMENT.  THAT CLAUSE HAS BEEN ALMOST
UNIVERSALLY CONSTRUED TO INCLUDE CIVILIANS.  WIENER, MANUAL OF MARTIAL
LAW (1940), 137; MORGAN, COURT-MARTIAL JURISDICTION OVER NONMILITARY
PERSONS UNDER THE ARTICLES OF WAR, 4 MINN. L. REV. 79, 107; WINTHROP,
MILITARY LAW AND PRECEDENTS (1920 ED.)  48, 767; FLETCHER, THE CIVILIAN
AND THE WAR POWER, 2 MINN. L. REV. 110, 126; 16 OP. ATTY. GEN. 292; EX
PARTE WILDMAN, 29 FED. CAS. 1232.  SUCH CONSTRUCTION IS FOUNDED IN
COMMON SENSE:  OF ALL HOSTILE ACTS, THOSE BY CIVILIANS ARE MOST
DANGEROUS AND SHOULD BE PUNISHED MOST SEVERELY. 

BY THE LAW OF WAR, WAR CRIMES CAN BE COMMITTED ANYWHERE "WITHIN THE
LINES OF A BELLIGERENT."  OPPENHEIM'S INT. L. (LAUTERPACHT'S 6TH ED.
1940) 457.  HAVING VIOLATED THE LAW OF WAR IN AN AREA WHERE IT
OBVIOUSLY APPLIES, OFFENDERS ARE SUBJECT TO TRIAL BY MILITARY TRIBUNALS
WHEREVER THEY MAY BE APPREHENDED.  CONGRESS MAY GRANT JURISDICTION TO
TRY CIVILIANS FOR OFFENSES WHICH "OCCUR IN THE THEATRE OF WAR, IN THE
THEATRE OF OPERATIONS, OR IN ANY PLACE OVER WHICH THE MILITARY FORCES
HAVE ACTUAL CONTROL AND JURISDICTION."  CF. MORGAN, SUPRA, AT 107;
WIENER, SUPRA, AT 137.  NEITHER THE BILL OF RIGHTS NOR EX PARTE
MILLIGAN GRANTS TO SUCH PERSONS CONSTITUTIONAL GUARANTEES WHICH THE
FIFTH AMENDMENT EXPRESSLY DENIES TO OUR OWN SOLDIERS.  CF. 2 WARREN,
THE SUPREME COURT IN UNITED STATES HISTORY (1937) 418; CORWIN, THE
PRESIDENT:  OFFICE AND POWERS (2D ED. 1741) 165; UNITED STATES V.
MCDONALD, 265 F. 754.  THE TEST OF WHETHER OR NOT THE CIVIL COURTS ARE
OPEN TO PUNISH CIVIL CRIMES IS TOO UNREALISTIC A TEST TO BE APPLIED
BLINDLY TO ALL EXERCISES OF MILITARY JURISDICTION. 

THE JUDGMENT OF THE PRESIDENT AS TO WHAT CONSTITUTES NECESSITY FOR
TRIAL BY MILITARY TRIBUNAL SHOULD NOT LIGHTLY BE DISREGARDED.  PRIZE
CASES, 2 BLACK 635.  THE ENGLISH COURTS HAVE NOT ONLY LONG SINCE
REJECTED THE DOCTRINE OF EX PARTE MILLIGAN, WHICH THEY ONCE ACCEPTED,
BUT ALSO HAVE RECENTLY SUSTAINED A WIDE DISCRETION GRANTED TO THE
EXECUTIVE FOR THE DETENTION OF PERSONS SUSPECTED OF HOSTILE
ASSOCIATIONS.  LIVERSIDGE V. ANDERSON, (1942) 1 A.C. 206; GREENE V.
SECRETARY OF STATE FOR HOME AFFAIRS, (1942) 1 A.C. 284. 

COURTS DO NOT INQUIRE INTO THE EXECUTIVE'S DETERMINATION ON MATTERS
OF THE TYPE HERE INVOLVED.  MARTIN V. MOTT, 12 WHEAT.  19.  CF. UNITED
STATES V. GEORGE S. BUSH & CO., 310 U.S. 371; UNITED STATES V. CURTISS
WRIGHT EXPORT CORP., 299 U.S. 304, 320; DAKOTA CENTRAL TEL. CO. V.
SOUTH DAKOTA, 250 U.S. 163.  EVEN IF IT BE ASSUMED THAT THE PRESIDENT'S
NOMINATION OF A MILITARY COMMISSION TO TRY WAR CRIMINALS, AS SPECIFIED
BY CONGRESS, MUST BE TESTED BY THE "ACTUAL AND PRESENT NECESSITY"
CRITERION OF THE MAJORITY OPINION IN THE MILLIGAN CASE, THIS COURT WILL
NOT REVIEW THE PRESIDENT'S JUDGMENT SAVE IN A CASE OF GRAVE AND OBVIOUS
ABUSE.  MOYER V. PEABODY, 212 U.S. 78; STERLING V. CONSTANTIN, 287 U.S.
378. 

THE COMMISSION WAS LEGALLY CONVENED AND CONSTITUTED.  KURTZ V.
MOFFITT, 115 U.S. 487, 500; KEYES V. UNITED STATES, 109 U.S. 336. 

THE PROCEDURE AND REGULATIONS PRESCRIBED BY THE PRESIDENT ARE
PROPER.  ARTICLE OF WAR 43, REQUIRING UNANIMITY FOR A DEATH SENTENCE,
REFERS TO COURTS-MARTIAL.  IT HAS NO APPLICATION TO CHARGES REFERRED TO
A MILITARY COMMISSION.  THE PRESIDENT'S ORDER DID NOT MAKE IMPROPER
PROVISION FOR REVIEW, ARTICLES OF WAR 46, 48, 50 1/2 AND 51
CONSIDERED.  THERE WAS NO IMPROPER DELEGATION OF RULE-MAKING POWER. 

THE DOCTRINE OF UNCONSTITUTIONAL DELEGATION OF POWERS RELATES ONLY TO
THE IMPROPER TRANSFER OF POWERS FROM ONE OF THE THREE BRANCHES OF THE
GOVERNMENT TO ANOTHER.  IT HAS NOTHING TO DO WITH DELEGATIONS BY THE
CHIEF EXECUTIVE TO HIS MILITARY SUBORDINATES WITHIN THE EXECUTIVE
BRANCH.  MILITARY COURTS "FORM NO PART OF THE JUDICIAL SYSTEM OF THE
UNITED STATES."  KURTZ V. MOFFITT, 115 U.S. 487, 500. 

OBJECTIONS TO THE ACTIONS OF THE COMMISSION ON A VARIETY OF GROUNDS,
RANGING FROM ITS REFUSAL TO PERMIT PEREMPTORY CHALLENGES TO ITS RULINGS
ON THE ADMISSIBILITY AND SUFFICIENCY OF EVIDENCE, ARE NOT COGNIZABLE BY
THIS COURT.  THE WRIT OF HABEAS CORPUS CAN ONLY BE USED TO QUESTION THE
JURISDICTION OF A MILITARY TRIBUNAL.  IT CANNOT BE CONVERTED INTO A
DEVICE FOR CIVIL COURT REVIEW. 

THE FOLLOWING IS THE PER CURIAM OPINION FILED JULY 31, 1942: 

PER CURIAM. 

IN THESE CAUSES MOTIONS FOR LEAVE TO FILE PETITIONS FOR HABEAS CORPUS
WERE PRESENTED TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA, WHICH ENTERED ORDERS DENYING THE MOTIONS.  MOTIONS FOR LEAVE
TO FILE PETITIONS FOR HABEAS CORPUS WERE THEN PRESENTED TO THIS COURT,
AND THE MERITS OF THE APPLICATIONS WERE FULLY ARGUED AT THE SPECIAL
TERM OF COURT CONVENED ON JULY 29, 1942.  COUNSEL FOR PETITIONERS
SUBSEQUENTLY FILED A NOTICE OF APPEAL FROM THE ORDER OF THE DISTRICT
COURT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA, AND THEY HAVE PERFECTED THEIR APPEALS TO THAT COURT.  THEY
HAVE PRESENTED TO THIS COURT PETITIONS FOR WRITS OF CERTIORARI BEFORE
JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA, PURSUANT TO 28 U.S.C. SEC. 347(A).  THE PETITIONS ARE
GRANTED.  IN ACCORDANCE WITH THE STIPULATION BETWEEN COUNSEL FOR
PETITIONERS AND FOR THE RESPONDENT, THE PAPERS FILED AND ARGUMENT HAD
IN CONNECTION WITH THE APPLICATIONS FOR LEAVE TO FILE PETITIONS FOR
HABEAS CORPUS ARE MADE APPLICABLE TO THE CERTIORARI PROCEEDINGS. 

THE COURT HAS FULLY CONSIDERED THE QUESTIONS RAISED IN THESE CASES
AND THOROUGHLY ARGUED AT THE BAR, AND HAS REACHED ITS CONCLUSION UPON
THEM.  IT NOW ANNOUNCES ITS DECISION AND ENTERS ITS JUDGMENT IN EACH
CASE, IN ADVANCE OF THE PREPARATION OF A FULL OPINION WHICH NECESSARILY
WILL REQUIRE A CONSIDERABLE PERIOD OF TIME FOR ITS PREPARATION AND
WHICH, WHEN PREPARED, WILL BE FILED WITH THE CLERK. 

THE COURT HOLDS: 

(1)  THAT THE CHARGES PREFERRED AGAINST PETITIONERS ON WHICH THEY ARE
BEING TRIED BY MILITARY COMMISSION APPOINTED BY THE ORDER OF THE
PRESIDENT OF JULY 2, 1942, ALLEGE AN OFFENSE OR OFFENSES WHICH THE
PRESIDENT IS AUTHORIZED TO ORDER TRIED BEFORE A MILITARY COMMISSION. 

(2)  THAT THE MILITARY COMMISSION WAS LAWFULLY CONSTITUTED. 

(3)  THAT PETITIONERS ARE HELD IN LAWFUL CUSTODY FOR TRIAL BEFORE THE
MILITARY COMMISSION, AND HAVE NOT SHOWN CAUSE FOR BEING DISCHARGED BY
WRIT OF HABEAS CORPUS. 

THE MOTIONS FOR LEAVE TO FILE PETITIONS FOR WRITS OF HABEAS CORPUS
ARE DENIED.    THE ORDERS OF THE DISTRICT COURT ARE AFFIRMED.  THE
MANDATES ARE DIRECTED TO ISSUE FORTHWITH. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARE BROUGHT HERE BY PETITIONERS' SEVERAL APPLICATIONS FOR
LEAVE TO FILE PETITIONS FOR HABEAS CORPUS IN THIS COURT, AND BY THEIR
PETITIONS FOR CERTIORARI TO REVIEW ORDERS OF THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA, WHICH DENIED THEIR APPLICATIONS FOR LEAVE TO FILE
PETITIONS FOR HABEAS CORPUS IN THAT COURT. 

THE QUESTION FOR DECISION IS WHETHER THE DETENTION OF PETITIONERS BY
RESPONDENT FOR TRIAL BY MILITARY COMMISSION, APPOINTED BY ORDER OF THE
PRESIDENT OF JULY 2, 1942, ON CHARGES PREFERRED AGAINST THEM PURPORTING
TO SET OUT THEIR VIOLATIONS OF THE LAW OF WAR AND OF THE ARTICLES OF
WAR, IS IN CONFORMITY TO THE LAWS AND CONSTITUTION OF THE UNITED
STATES. 

AFTER DENIAL OF THEIR APPLICATIONS BY THE DISTRICT COURT, 47 F.SUPP. 
431, PETITIONERS ASKED LEAVE TO FILE PETITIONS FOR HABEAS CORPUS IN
THIS COURT.  IN VIEW OF THE PUBLIC IMPORTANCE OF THE QUESTIONS RAISED
BY THEIR PETITIONS AND OF THE DUTY WHICH RESTS ON THE COURTS, IN TIME
OF WAR AS WELL AS IN TIME OF PEACE, TO PRESERVE UNIMPAIRED THE
CONSTITUTIONAL SAFEGUARDS OF CIVIL LIBERTY, AND BECAUSE IN OUR OPINION
THE PUBLIC INTEREST REQUIRED THAT WE CONSIDER AND DECIDE THOSE
QUESTIONS WITHOUT ANY AVOIDABLE DELAY, WE DIRECTED THAT PETITIONERS'
APPLICATIONS BE SET DOWN FOR FULL ORAL ARGUMENT AT A SPECIAL TERM OF
THIS COURT, CONVENED ON JULY 29, 1942.  THE APPLICATIONS FOR LEAVE TO
FILE THE PETITIONS WERE PRESENTED IN OPEN COURT ON THAT DAY AND WERE
HEARD ON THE PETITIONS, THE ANSWERS TO THEM OF RESPONDENT, A
STIPULATION OF FACTS BY COUNSEL, AND THE RECORD OF THE TESTIMONY GIVEN
BEFORE THE COMMISSION. 

WHILE THE ARGUMENT WAS PROCEEDING BEFORE US, PETITIONERS PERFECTED
THEIR APPEALS FROM THE ORDERS OF THE DISTRICT COURT TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA AND THEREUPON
FILED WITH THIS COURT PETITIONS FOR CERTIORARI TO THE COURT OF APPEALS
BEFORE JUDGMENT, PURSUANT TO SEC. 240(A) OF THE JUDICIAL CODE, 28
U.S.C. SEC. 347(A).  WE GRANTED CERTIORARI BEFORE JUDGMENT FOR THE
REASONS WHICH MOVED US TO CONVENE THE SPECIAL TERM OF COURT.  IN
ACCORDANCE WITH THE STIPULATION OF COUNSEL WE TREAT THE RECORD, BRIEFS
AND ARGUMENTS IN THE HABEAS CORPUS PROCEEDINGS IN THIS COURT AS THE
RECORD, BRIEFS AND ARGUMENTS UPON THE WRITS OF CERTIORARI. 

ON JULY 31, 1942, AFTER HEARING ARGUMENT OF COUNSEL AND AFTER FULL
CONSIDERATION OF ALL QUESTIONS RAISED, THIS COURT AFFIRMED THE ORDERS
OF THE DISTRICT COURT AND DENIED PETITIONERS' APPLICATIONS FOR LEAVE TO
FILE PETITIONS FOR HABEAS CORPUS.  BY PER CURIAM OPINION WE ANNOUNCED
THE DECISION OF THE COURT, AND THAT THE FULL OPINION IN THE CAUSES
WOULD BE PREPARED AND FILED WITH THE CLERK. 

THE FOLLOWING FACTS APPEAR FROM THE PETITIONS OR ARE STIPULATED. 
EXCEPT AS NOTED THEY ARE UNDISPUTED. 

ALL THE PETITIONERS WERE BORN IN GERMANY; ALL HAVE LIVED IN THE
UNITED STATES.  ALL RETURNED TO GERMANY BETWEEN 1933 AND 1941.  ALL
EXCEPT PETITIONER HAUPT ARE ADMITTEDLY CITIZENS OF THE GERMAN REICH,
WITH WHICH THE UNITED STATES IS AT WAR.  HAUPT CAME TO THIS COUNTRY
WITH HIS PARENTS WHEN HE WAS FIVE YEARS OLD; IT IS CONTENDED THAT HE
BECAME A CITIZEN OF THE UNITED STATES BY VIRTUE OF THE NATURALIZATION
OF HIS PARENTS DURING HIS MINORITY AND THAT HE HAS NOT SINCE LOST HIS
CITIZENSHIP.  THE GOVERNMENT, HOWEVER, TAKES THE POSITION THAT ON
ATTAINING HIS MAJORITY HE ELECTED TO MAINTAIN GERMAN ALLEGIANCE AND
CITIZENSHIP, OR IN ANY CASE THAT HE HAS BY HIS CONDUCT RENOUNCED OR
ABANDONED HIS UNITED STATES CITIZENSHIP.  SEE PERKINS V. ELG, 307 U.S.
325, 334; UNITED STATES EX REL. ROJAK V. MARSHALL, 34 F.2D 219; UNITED
STATES EX REL. SCIMECA V. HUSBAND, 6 F.2D 957, 958; 8 U.S.C. SEC. 801,
AND COMPARE 8 U.S.C. SEC. 808.  FOR REASONS PRESENTLY TO BE STATED WE
DO NOT FIND IT NECESSARY TO RESOLVE THESE CONTENTIONS. 

AFTER THE DECLARATION OF WAR BETWEEN THE UNITED STATES AND THE GERMAN
REICH, PETITIONERS RECEIVED TRAINING AT A SABOTAGE SCHOOL NEAR BERLIN,
GERMANY, WHERE THEY WERE INSTRUCTED IN THE USE OF EXPLOSIVES AND IN
METHODS OF SECRET WRITING.  THEREAFTER PETITIONERS, WITH A GERMAN
CITIZEN, DASCH, PROCEEDED FROM GERMANY TO A SEAPORT IN OCCUPIED FRANCE,
WHERE PETITIONERS BURGER, HEINCK AND QUIRIN, TOGETHER WITH DASCH,
BOARDED A GERMAN SUBMARINE WHICH PROCEEDED ACROSS THE ATLANTIC TO
AMAGANSETT BEACH ON LONG ISLAND, NEW YORK.  THE FOUR WERE THERE LANDED
FROM THE SUBMARINE IN THE HOURS OF DARKNESS, ON OR ABOUT JUNE 13, 1942,
CARRYING WITH THEM A SUPPLY OF EXPLOSIVES, FUSES, AND INCENDIARY AND
TIMING DEVICES.  WHILE LANDING THEY WORE GERMAN MARINE INFANTRY
UNIFORMS OR PARTS OF UNIFORMS.  IMMEDIATELY AFTER LANDING THEY BURIED
THEIR UNIFORMS AND THE OTHER ARTICLES MENTIONED, AND PROCEEDED IN
CIVILIAN DRESS TO NEW YORK CITY. 

THE REMAINING FOUR PETITIONERS AT THE SAME FRENCH PORT BOARDED
ANOTHER GERMAN SUBMARINE, WHICH CARRIED THEM ACROSS THE ATLANTIC TO
PONTE VEDRA BEACH, FLORIDA.  ON OR ABOUT JUNE 17, 1942, THEY CAME
ASHORE DURING THE HOURS OF DARKNESS, WEARING CAPS OF THE GERMAN MARINE
INFANTRY AND CARRYING WITH THEM A SUPPLY OF EXPLOSIVES, FUSES, AND
INCENDIARY AND TIMING DEVICES.  THEY IMMEDIATELY BURIED THEIR CAPS AND
THE OTHER ARTICLES MENTIONED, AND PROCEEDED IN CIVILIAN DRESS TO
JACKSONVILLE, FLORIDA, AND THENCE TO VARIOUS POINTS IN THE UNITED
STATES.  ALL WERE TAKEN INTO CUSTODY IN NEW YORK OR CHICAGO BY AGENTS
OF THE FEDERAL BUREAU OF INVESTIGATION.  ALL HAD RECEIVED INSTRUCTIONS
IN GERMANY FROM AN OFFICER OF THE GERMAN HIGH COMMAND TO DESTROY WAR
INDUSTRIES AND WAR FACILITIES IN THE UNITED STATES, FOR WHICH THEY OR
THEIR RELATIVES IN GERMANY WERE TO RECEIVE SALARY PAYMENTS FROM THE
GERMAN GOVERNMENT.  THEY ALSO HAD BEEN PAID BY THE GERMAN GOVERNMENT
DURING THEIR COURSE OF TRAINING AT THE SABOTAGE SCHOOL AND HAD RECEIVED
SUBSTANTIAL SUMS IN UNITED STATES CURRENCY, WHICH WERE IN THEIR
POSSESSION WHEN ARRESTED.  THE CURRENCY HAD BEEN HANDED TO THEM BY AN
OFFICER OF THE GERMAN HIGH COMMAND, WHO HAD INSTRUCTED THEM TO WEAR
THEIR GERMAN UNIFORMS WHILE LANDING IN THE UNITED STATES.  FN1 

THE PRESIDENT, AS PRESIDENT AND COMMANDER IN CHIEF OF THE ARMY AND
NAVY, BY ORDER OF JULY 2, 1942,  FN2  APPOINTED A MILITARY COMMISSION
AND DIRECTED IT TO TRY PETITIONERS FOR OFFENSES AGAINST THE LAW OF WAR
AND THE ARTICLES OF WAR, AND PRESCRIBED REGULATIONS FOR THE PROCEDURE
ON THE TRIAL AND FOR REVIEW OF THE RECORD OF THE TRIAL AND OF ANY
JUDGMENT OR SENTENCE OF THE COMMISSION.  ON THE SAME DAY, BY
PROCLAMATION,  FN3  THE PRESIDENT DECLARED THAT "ALL PERSONS WHO ARE
SUBJECTS, CITIZENS OR RESIDENTS OF ANY NATION AT WAR WITH THE UNITED
STATES OR WHO GIVE OBEDIENCE TO OR ACT UNDER THE DIRECTION OF ANY SUCH
NATION, AND WHO DURING TIME OF WAR ENTER OR ATTEMPT TO ENTER THE UNITED
STATES  ...  THROUGH COASTAL OR BOUNDARY DEFENSES, AND ARE CHARGED WITH
COMMITTING OR ATTEMPTING OR PREPARING TO COMMIT SABOTAGE, ESPIONAGE,
HOSTILE OR WARLIKE ACTS, OR VIOLATIONS OF THE LAW OF WAR, SHALL BE
SUBJECT TO THE LAW OF WAR AND TO THE JURISDICTION OF MILITARY
TRIBUNALS." 

THE PROCLAMATION ALSO STATED IN TERMS THAT ALL SUCH PERSONS WERE
DENIED ACCESS TO THE COURTS. 

PURSUANT TO DIRECTION OF THE ATTORNEY GENERAL, THE FEDERAL BUREAU OF
INVESTIGATION SURRENDERED CUSTODY OF PETITIONERS TO RESPONDENT, PROVOST
MARSHAL OF THE MILITARY DISTRICT OF WASHINGTON, WHO WAS DIRECTED BY THE
SECRETARY OF WAR TO RECEIVE AND KEEP THEM IN CUSTODY, AND WHO
THEREAFTER HELD PETITIONERS FOR TRIAL BEFORE THE COMMISSION. 

ON JULY 3, 1942, THE JUDGE ADVOCATE GENERAL'S DEPARTMENT OF THE ARMY
PREPARED AND LODGED WITH THE COMMISSION THE FOLLOWING CHARGES AGAINST
PETITIONERS, SUPPORTED BY SPECIFICATIONS: 

1.  VIOLATION OF THE LAW OF WAR. 

2.  VIOLATION OF ARTICLE 81 OF THE ARTICLES OF WAR, DEFINING THE
OFFENSE OF RELIEVING OR ATTEMPTING TO RELIEVE, OR CORRESPONDING WITH OR
GIVING INTELLIGENCE TO, THE ENEMY. 

3.  VIOLATION OF ARTICLE 82, DEFINING THE OFFENSE OF SPYING. 

4.  CONSPIRACY TO COMMIT THE OFFENSES ALLEGED IN CHARGES 1, 2 AND 3. 

THE COMMISSION MET ON JULY 8, 1942, AND PROCEEDED WITH THE TRIAL,
WHICH CONTINUED IN PROGRESS WHILE THE CAUSES WERE PENDING IN THIS
COURT.  ON JULY 27TH, BEFORE PETITIONERS' APPLICATIONS TO THE DISTRICT
COURT, ALL THE EVIDENCE FOR THE PROSECUTION AND THE DEFENSE HAD BEEN
TAKEN BY THE COMMISSION AND THE CASE HAD BEEN CLOSED EXCEPT FOR
ARGUMENTS OF COUNSEL.  IT IS CONCEDED THAT EVER SINCE PETITIONERS'
ARREST THE STATE AND FEDERAL COURTS IN FLORIDA, NEW YORK, AND THE
DISTRICT OF COLUMBIA, AND IN THE STATES IN WHICH EACH OF THE
PETITIONERS WAS ARRESTED OR DETAINED, HAVE BEEN OPEN AND FUNCTIONING
NORMALLY. 

WHILE IT IS THE USUAL PROCEDURE ON AN APPLICATION FOR A WRIT OF
HABEAS CORPUS IN THE FEDERAL COURTS FOR THE COURT TO ISSUE THE WRIT AND
ON THE RETURN TO HEAR AND DISPOSE OF THE CASE, IT MAY WITHOUT ISSUING
THE WRIT CONSIDER AND DETERMINE WHETHER THE FACTS ALLEGED BY THE
PETITION, IF PROVED, WOULD WARRANT DISCHARGE OF THE PRISONER.  WALKER
V. JOHNSTON, 312 U.S. 275, 284.  PRESENTATION OF THE PETITION FOR
JUDICIAL ACTION IS THE INSTITUTION OF A SUIT.  HENCE DENIAL BY THE
DISTRICT COURT OF LEAVE TO FILE THE PETITIONS IN THESE CAUSES WAS THE
JUDICIAL DETERMINATION OF A CASE OR CONTROVERSY, REVIEWABLE ON APPEAL
TO THE COURT OF APPEALS AND REVIEWABLE HERE BY CERTIORARI.  SEE EX
PARTE MILLIGAN, 4 WALL.  2, 110-13; BETTS V. BRADY, 316 U.S. 455, 458
461. 

PETITIONERS' MAIN CONTENTION IS THAT THE PRESIDENT IS WITHOUT ANY
STATUTORY OR CONSTITUTIONAL AUTHORITY TO ORDER THE PETITIONERS TO BE
TRIED BY MILITARY TRIBUNAL FOR OFFENSES WITH WHICH THEY ARE CHARGED;
THAT IN CONSEQUENCE THEY ARE ENTITLED TO BE TRIED IN THE CIVIL COURTS
WITH THE SAFEGUARDS, INCLUDING TRIAL BY JURY, WHICH THE FIFTH AND SIXTH
AMENDMENTS GUARANTEE TO ALL PERSONS CHARGED IN SUCH COURTS WITH
CRIMINAL OFFENSES.  IN ANY CASE IT IS URGED THAT THE PRESIDENT'S ORDER,
IN PRESCRIBING THE PROCEDURE OF THE COMMISSION AND THE METHOD FOR
REVIEW OF ITS FINDINGS AND SENTENCE, AND THE PROCEEDINGS OF THE
COMMISSION UNDER THE ORDER, CONFLICT WITH ARTICLES OF WAR ADOPTED BY
CONGRESS - PARTICULARLY ARTICLES 38, 43, 46, 50 1/2 AND 70 - AND ARE
ILLEGAL AND VOID. 

THE GOVERNMENT CHALLENGES EACH OF THESE PROPOSITIONS.  BUT REGARDLESS
OF THEIR MERITS, IT ALSO INSISTS THAT PETITIONERS MUST BE DENIED ACCESS
TO THE COURTS, BOTH BECAUSE THEY ARE ENEMY ALIENS OR HAVE ENTERED OUR
TERRITORY AS ENEMY BELLIGERENTS, AND BECAUSE THE PRESIDENT'S
PROCLAMATION UNDERTAKES IN TERMS TO DENY SUCH ACCESS TO THE CLASS OF
PERSONS DEFINED BY THE PROCLAMATION, WHICH APTLY DESCRIBES THE
CHARACTER AND CONDUCT OF PETITIONERS.  IT IS URGED THAT IF THEY ARE
ENEMY ALIENS OR IF THE PROCLAMATION HAS FORCE, NO COURT MAY AFFORD THE
PETITIONERS A HEARING.  BUT THERE IS CERTAINLY NOTHING IN THE
PROCLAMATION TO PRECLUDE ACCESS TO THE COURTS FOR DETERMINING ITS
APPLICABILITY TO THE PARTICULAR CASE.  AND NEITHER THE PROCLAMATION NOR
THE FACT THAT THEY ARE ENEMY ALIENS FORECLOSES CONSIDERATION BY THE
COURTS OF PETITIONERS' CONTENTIONS THAT THE CONSTITUTION AND LAWS OF
THE UNITED STATES CONSTITUTIONALLY ENACTED FORBID THEIR TRIAL BY
MILITARY COMMISSION.  AS ANNOUNCED IN OUR PER CURIAM OPINION, WE HAVE
RESOLVED THOSE QUESTIONS BY OUR CONCLUSION THAT THE COMMISSION HAS
JURISDICTION TO TRY THE CHARGE PREFERRED AGAINST PETITIONERS.  THERE IS
THEREFORE NO OCCASION TO DECIDE CONTENTIONS OF THE PARTIES UNRELATED TO
THIS ISSUE.  WE PASS AT ONCE TO THE CONSIDERATION OF THE BASIS OF THE
COMMISSION'S AUTHORITY. 

WE ARE NOT HERE CONCERNED WITH ANY QUESTION OF THE GUILT OR INNOCENCE
OF PETITIONERS.  FN4 CONSTITUTIONAL SAFEGUARDS FOR THE PROTECTION OF
ALL WHO ARE CHARGED WITH OFFENSES ARE NOT TO BE DISREGARDED IN ORDER TO
INFLICT MERITED PUNISHMENT ON SOME WHO ARE GUILTY.  EX PARTE MILLIGAN,
SUPRA, 119, 132; TUMEY V. OHIO, 273 U.S. 510, 535; HILL V. TEXAS, 316
U.S. 400, 406.  BUT THE DETENTION AND TRIAL OF PETITIONERS - ORDERED BY
THE PRESIDENT IN THE DECLARED EXERCISE OF HIS POWERS AS COMMANDER IN
CHIEF OF THE ARMY IN TIME OF WAR AND OF GRAVE PUBLIC DANGER - ARE NOT
TO BE SET ASIDE BY THE COURTS WITHOUT THE CLEAR CONVICTION THAT THEY
ARE IN CONFLICT WITH THE CONSTITUTION OR LAWS OF CONGRESS
CONSTITUTIONALLY ENACTED. 

CONGRESS AND THE PRESIDENT, LIKE THE COURTS, POSSESS NO POWER NOT
DERIVED FROM THE CONSTITUTION.  BUT ONE OF THE OBJECTS OF THE
CONSTITUTION, AS DECLARED BY ITS PREAMBLE, IS TO "PROVIDE FOR THE
COMMON DEFENCE."  AS A MEANS TO THAT END, THE CONSTITUTION GIVES TO
CONGRESS THE POWER TO "PROVIDE FOR THE COMMON DEFENCE," ART. I, SEC. 8,
CL. 1; "TO RAISE AND SUPPORT ARMIES," "TO PROVIDE AND MAINTAIN A NAVY,"
ART. I, SEC. 8, CL. 12, 13; AND "TO MAKE RULES FOR THE GOVERNMENT AND
REGULATION OF THE LAND AND NAVAL FORCES," ART. I, SEC. 8, CL. 14. 
CONGRESS IS GIVEN AUTHORITY "TO DECLARE WAR, GRANT LETTERS OF MARQUE
AND REPRISAL, AND MAKE RULES CONCERNING CAPTURES ON LAND AND WATER,"
ART. I, SEC. 8, CL. 11; AND "TO DEFINE AND PUNISH PIRACIES AND FELONIES
COMMITTED ON THE HIGH SEAS, AND OFFENCES AGAINST THE LAW OF NATIONS,"
ART. I, SEC. 8, CL. 10.  AND FINALLY, THE CONSTITUTION AUTHORIZES
CONGRESS "TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR
CARRYING INTO EXECUTION THE FOREGOING POWERS, AND ALL OTHER POWERS
VESTED BY THIS CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES, OR
IN ANY DEPARTMENT OR OFFICER THEREOF."  ART. I, SEC. 8, CL. 18. 

THE CONSTITUTION CONFERS ON THE PRESIDENT THE "EXECUTIVE POWER," ART.
II, SEC. 1, CL. 1, AND IMPOSES ON HIM THE DUTY TO "TAKE CARE THAT THE
LAWS BE FAITHFULLY EXECUTED."  ART. II, SEC. 3.  IT MAKES HIM THE
COMMANDER IN CHIEF OF THE ARMY AND NAVY, ART. II, SEC. 2, CL. 1, AND
EMPOWERS HIM TO APPOINT AND COMMISSION OFFICERS OF THE UNITED STATES. 
ART. II, SEC. 3, CL. 1.    THE CONSTITUTION THUS INVESTS THE PRESIDENT,
AS COMMANDER IN CHIEF, WITH THE POWER TO WAGE WAR WHICH CONGRESS HAS
DECLARED, AND TO CARRY INTO EFFECT ALL LAWS PASSED BY CONGRESS FOR THE
CONDUCT OF WAR AND FOR THE GOVERNMENT AND REGULATION OF THE ARMED
FORCES, AND ALL LAWS DEFINING AND PUNISHING OFFENSES AGAINST THE LAW OF
NATIONS, INCLUDING THOSE WHICH PERTAIN TO THE CONDUCT OF WAR. 

BY THE ARTICLES OF WAR, 10 U.S.C. SECS. 1471-1593, CONGRESS HAS
PROVIDED RULES FOR THE GOVERNMENT OF THE ARMY.  IT HAS PROVIDED FOR THE
TRIAL AND PUNISHMENT, BY COURTS MARTIAL, OF VIOLATIONS OF THE ARTICLES
BY MEMBERS OF THE ARMED FORCES AND BY SPECIFIED CLASSES OF PERSONS
ASSOCIATED OR SERVING WITH THE ARMY.  ARTS. 1, 2.  BUT THE ARTICLES
ALSO RECOGNIZE THE "MILITARY COMMISSION" APPOINTED BY MILITARY COMMAND
AS AN APPROPRIATE TRIBUNAL FOR THE TRIAL AND PUNISHMENT OF OFFENSES
AGAINST THE LAW OF WAR NOT ORDINARILY TRIED BY COURT MARTIAL.  SEE
ARTS. 12, 15.  ARTICLES 38 AND 46 AUTHORIZE THE PRESIDENT, WITH CERTAIN
LIMITATIONS, TO PRESCRIBE THE PROCEDURE FOR MILITARY COMMISSIONS. 
ARTICLES 81 AND 82 AUTHORIZE TRIAL, EITHER BY COURT MARTIAL OR MILITARY
COMMISSION, OF THOSE CHARGED WITH RELIEVING, HARBORING OR CORRESPONDING
WITH THE ENEMY AND THOSE CHARGED WITH SPYING.  AND ARTICLE 15 DECLARES
THAT "THE PROVISIONS OF THESE ARTICLES CONFERRING JURISDICTION UPON
COURTS MARTIAL SHALL NOT BE CONSTRUED AS DEPRIVING MILITARY COMMISSIONS
...  OR OTHER MILITARY TRIBUNALS OF CONCURRENT JURISDICTION IN RESPECT
OF OFFENDERS OR OFFENSES THAT BY STATUTE OR BY THE LAW OF WAR MAY BE
TRIABLE BY SUCH MILITARY COMMISSIONS  ...  OR OTHER MILITARY
TRIBUNALS."  ARTICLE 2 INCLUDES AMONG THOSE PERSONS SUBJECT TO MILITARY
LAW THE PERSONNEL OF OUR OWN MILITARY ESTABLISHMENT.  BUT THIS, AS
ARTICLE 12 PROVIDES, DOES NOT EXCLUDE FROM THAT CLASS "ANY OTHER PERSON
WHO BY THE LAW OF WAR IS SUBJECT TO TRIAL BY MILITARY TRIBUNALS" AND
WHO UNDER ARTICLE 12 MAY BE TRIED BY COURT MARTIAL OR UNDER ARTICLE 15
BY MILITARY COMMISSION. 

SIMILARLY THE ESPIONAGE ACT OF 1917, WHICH AUTHORIZES TRIAL IN THE
DISTRICT COURTS OF CERTAIN OFFENSES THAT TEND TO INTERFERE WITH THE
PROSECUTION OF WAR, PROVIDES THAT NOTHING CONTAINED IN THE ACT "SHALL
BE DEEMED TO LIMIT THE JURISDICTION OF THE GENERAL COURTS-MARTIAL,
MILITARY COMMISSIONS, OR NAVAL COURTS-MARTIAL."  50 U.S.C. SEC. 38. 

FROM THE VERY BEGINNING OF ITS HISTORY THIS COURT HAS RECOGNIZED AND
APPLIED THE LAW OF WAR AS INCLUDING THAT PART OF THE LAW OF NATIONS
WHICH PRESCRIBES, FOR THE CONDUCT OF WAR, THE STATUS, RIGHTS AND DUTIES
OF ENEMY NATIONS AS WELL AS OF ENEMY INDIVIDUALS.  FN5  BY THE ARTICLES
OF WAR, AND ESPECIALLY ARTICLE 15, CONGRESS HAS EXPLICITLY PROVIDED, SO
FAR AS IT MAY CONSTITUTIONALLY DO SO, THAT MILITARY TRIBUNALS SHALL
HAVE JURISDICTION TO TRY OFFENDERS OR OFFENSES AGAINST THE LAW OF WAR
IN APPROPRIATE CASES.  CONGRESS, IN ADDITION TO MAKING RULES FOR THE
GOVERNMENT OF OUR ARMED FORCES, HAS THUS EXERCISED ITS AUTHORITY TO
DEFINE AND PUNISH OFFENSES AGAINST THE LAW OF NATIONS BY SANCTIONING,
WITHIN CONSTITUTIONAL LIMITATIONS, THE JURISDICTION OF MILITARY
COMMISSIONS TO TRY PERSONS FOR OFFENSES WHICH, ACCORDING TO THE RULES
AND PRECEPTS OF THE LAW OF NATIONS, AND MORE PARTICULARLY THE LAW OF
WAR, ARE COGNIZABLE BY SUCH TRIBUNALS.  AND THE PRESIDENT, AS COMMANDER
IN CHIEF, BY HIS PROCLAMATION IN TIME OF WAR HAS INVOKED THAT LAW.  BY
HIS ORDER CREATING THE PRESENT COMMISSION HE HAS UNDERTAKEN TO EXERCISE
THE AUTHORITY CONFERRED UPON HIM BY CONGRESS, AND ALSO SUCH AUTHORITY
AS THE CONSTITUTION ITSELF GIVES THE COMMANDER IN CHIEF, TO DIRECT THE
PERFORMANCE OF THOSE FUNCTIONS WHICH MAY CONSTITUTIONALLY BE PERFORMED
BY THE MILITARY ARM OF THE NATION IN TIME OF WAR. 

AN IMPORTANT INCIDENT TO THE CONDUCT OF WAR IS THE ADOPTION OF
MEASURES BY THE MILITARY COMMAND NOT ONLY TO REPEL AND DEFEAT THE
ENEMY, BUT TO SEIZE AND SUBJECT TO DISCIPLINARY MEASURES THOSE ENEMIES
WHO IN THEIR ATTEMPT TO THWART OR IMPEDE OUR MILITARY EFFORT HAVE
VIOLATED THE LAW OF WAR.  IT IS UNNECESSARY FOR PRESENT PURPOSES TO
DETERMINE TO WHAT EXTENT THE PRESIDENT AS COMMANDER IN CHIEF HAS
CONSTITUTIONAL POWER TO CREATE MILITARY COMMISSIONS WITHOUT THE SUPPORT
OF CONGRESSIONAL LEGISLATION.  FOR HERE CONGRESS HAS AUTHORIZED TRIAL
OF OFFENSES AGAINST THE LAW OF WAR BEFORE SUCH COMMISSIONS.  WE ARE
CONCERNED ONLY WITH THE QUESTION WHETHER IT IS WITHIN THE
CONSTITUTIONAL POWER OF THE NATIONAL GOVERNMENT TO PLACE PETITIONERS
UPON TRIAL BEFORE A MILITARY COMMISSION FOR THE OFFENSES WITH WHICH
THEY ARE CHARGED.  WE MUST THEREFORE FIRST INQUIRE WHETHER ANY OF THE
ACTS CHARGED IS AN OFFENSE AGAINST THE LAW OF WAR COGNIZABLE BEFORE A
MILITARY TRIBUNAL, AND IF SO WHETHER THE CONSTITUTION PROHIBITS THE
TRIAL.  WE MAY ASSUME THAT THERE ARE ACTS REGARDED IN OTHER COUNTRIES,
OR BY SOME WRITERS ON INTERNATIONAL LAW, AS OFFENSES AGAINST THE LAW OF
WAR WHICH WOULD NOT BE TRIABLE BY MILITARY TRIBUNAL HERE, EITHER
BECAUSE THEY ARE NOT RECOGNIZED BY OUR COURTS AS VIOLATIONS OF THE LAW
OF WAR OR BECAUSE THEY ARE OF THAT CLASS OF OFFENSES CONSTITUTIONALLY
TRIABLE ONLY BY A JURY.  IT WAS UPON SUCH GROUNDS THAT THE COURT DENIED
THE RIGHT TO PROCEED BY MILITARY TRIBUNAL IN EX PARTE MILLIGAN, SUPRA.
BUT AS WE SHALL SHOW, THESE PETITIONERS WERE CHARGED WITH AN OFFENSE
AGAINST THE LAW OF WAR WHICH THE CONSTITUTION DOES NOT REQUIRE TO BE
TRIED BY JURY. 

IT IS NO OBJECTION THAT CONGRESS IN PROVIDING FOR THE TRIAL OF SUCH
OFFENSES HAS NOT ITSELF UNDERTAKEN TO CODIFY THAT BRANCH OF
INTERNATIONAL LAW OR TO MARK ITS PRECISE BOUNDARIES, OR TO ENUMERATE OR
DEFINE BY STATUTE ALL THE ACTS WHICH THAT LAW CONDEMNS.  AN ACT OF
CONGRESS PUNISHING "THE CRIME OF PIRACY, AS DEFINED BY THE LAW OF
NATIONS" IS AN APPROPRIATE EXERCISE OF ITS CONSTITUTIONAL AUTHORITY,
ART. I, SEC. 8, CL. 10, "TO DEFINE AND PUNISH" THE OFFENSE, SINCE IT
HAS ADOPTED BY REFERENCE THE SUFFICIENTLY PRECISE DEFINITION OF
INTERNATIONAL LAW.  UNITED STATES V. SMITH, 5 WHEAT.  153; SEE THE
MARIANNA FLORA, 11 WHEAT.  1, 40-41; UNITED STATES V. BRIG MALEK ADHEL,
2 HOW.  210, 232; THE AMBROSE LIGHT, 25 F. 408, 423-28; 18 U.S.C. SEC.
481.  FN6  SIMILARLY, BY THE REFERENCE IN THE 15TH ARTICLE OF WAR TO
"OFFENDERS OR OFFENSES THAT  ...  BY THE LAW OF WAR MAY BE TRIABLE BY
SUCH MILITARY COMMISSIONS," CONGRESS HAS INCORPORATED BY REFERENCE, AS
WITHIN THE JURISDICTION OF MILITARY COMMISSIONS, ALL OFFENSES WHICH ARE
DEFINED AS SUCH BY THE LAW OF WAR (COMPARE DYNES V. HOOVER, 20 HOW. 
65, 82), AND WHICH MAY CONSTITUTIONALLY BE INCLUDED WITHIN THAT
JURISDICTION.  CONGRESS HAD THE CHOICE OF CRYSTALLIZING IN PERMANENT
FORM AND IN MINUTE DETAIL EVERY OFFENSE AGAINST THE LAW OF WAR, OR OF
ADOPTING THE SYSTEM OF COMMON LAW APPLIED BY MILITARY TRIBUNALS SO FAR
AS IT SHOULD BE RECOGNIZED AND DEEMED APPLICABLE BY THE COURTS.  IT
CHOSE THE LATTER COURSE. 

BY UNIVERSAL AGREEMENT AND PRACTICE, THE LAW OF WAR DRAWS A
DISTINCTION BETWEEN THE ARMED FORCES AND THE PEACEFUL POPULATIONS OF
BELLIGERENT NATIONS  FN7  AND ALSO BETWEEN THOSE WHO ARE LAWFUL AND
UNLAWFUL COMBATANTS.  LAWFUL COMBATANTS ARE SUBJECT TO CAPTURE AND
DETENTION AS PRISONERS OF WAR BY OPPOSING MILITARY FORCES.  UNLAWFUL
COMBATANTS ARE LIKEWISE SUBJECT TO CAPTURE AND DETENTION, BUT IN
ADDITION THEY ARE SUBJECT TO TRIAL AND PUNISHMENT BY MILITARY TRIBUNALS
FOR ACTS WHICH RENDER THEIR BELLIGERENCY UNLAWFUL.  FN8  THE SPY WHO
SECRETLY AND WITHOUT UNIFORM PASSES THE MILITARY LINES OF A BELLIGERENT
IN TIME OF WAR, SEEKING TO GATHER MILITARY INFORMATION AND COMMUNICATE
IT TO THE ENEMY, OR AN ENEMY COMBATANT WHO WITHOUT UNIFORM COMES
SECRETLY THROUGH THE LINES FOR THE PURPOSE OF WAGING WAR BY DESTRUCTION
OF LIFE OR PROPERTY, ARE FAMILIAR EXAMPLES OF BELLIGERENTS WHO ARE
GENERALLY DEEMED NOT TO BE ENTITLED TO THE STATUS OF PRISONERS OF WAR,
BUT TO BE OFFENDERS AGAINST THE LAW OF WAR SUBJECT TO TRIAL AND
PUNISHMENT BY MILITARY TRIBUNALS.  SEE WINTHROP, MILITARY LAW, 2D ED.,
PP. 1196-97, 1219-21; INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE
UNITED STATES IN THE FIELD, APPROVED BY THE PRESIDENT, GENERAL ORDER
NO. 100, APRIL 24, 1863, SECS. IV AND V. 

SUCH WAS THE PRACTICE OF OUR OWN MILITARY AUTHORITIES BEFORE THE
ADOPTION OF THE CONSTITUTION, FN9  AND DURING THE MEXICAN AND CIVIL
WARS.  FN10 

PARAGRAPH 83 OF GENERAL ORDER NO. 100 OF APRIL 24, 1863, DIRECTED
THAT:  "SCOUTS OR SINGLE SOLDIERS, IF DISGUISED IN THE DRESS OF THE
COUNTRY, OR IN THE UNIFORM OF THE ARMY HOSTILE TO THEIR OWN, EMPLOYED
IN OBTAINING INFORMATION, IF FOUND WITHIN OR LURKING ABOUT THE LINES OF
THE CAPTOR, ARE TREATED AS SPIES, AND SUFFER DEATH."  AND PARAGRAPH 84,
THAT "ARMED PROWLERS, BY WHATEVER NAMES THEY MAY BE CALLED, OR PERSONS
OF THE ENEMY'S TERRITORY, WHO STEAL WITHIN THE LINES OF THE HOSTILE
ARMY, FOR THE PURPOSE OF ROBBING, KILLING, OR OF DESTROYING BRIDGES,
ROADS, OR CANALS, OR OF ROBBING OR DESTROYING THE MAIL, OR OF CUTTING
THE TELEGRAPH WIRES, ARE NOT ENTITLED TO THE PRIVILEGES OF THE PRISONER
OF WAR."  FN11 THESE AND RELATED PROVISIONS HAVE BEEN CONTINUED IN
SUBSTANCE BY THE RULES OF LAND WARFARE PROMULGATED BY THE WAR
DEPARTMENT FOR THE GUIDANCE OF THE ARMY.  RULES OF 1914, PAR. 369-77;
RULES OF 1940, PAR. 345-57.  PARAGRAPH 357 OF THE 1940 RULES PROVIDES
THAT "ALL WAR CRIMES ARE SUBJECT TO THE DEATH PENALTY, ALTHOUGH A
LESSER PENALTY MAY BE IMPOSED."  PARAGRAPH 8(1940) DIVIDES THE ENEMY
POPULATION INTO "ARMED FORCES" AND "PEACEFUL POPULATION," AND PARAGRAPH
9 NAMES AS DISTINGUISHING CHARACTERISTICS OF LAWFUL BELLIGERENTS THAT
THEY "CARRY ARMS OPENLY" AND "HAVE A FIXED DISTINCTIVE EMBLEM." 
PARAGRAPH 348 DECLARES THAT "PERSONS WHO TAKE UP ARMS AND COMMIT
HOSTILITIES" WITHOUT HAVING THE MEANS OF IDENTIFICATION PRESCRIBED FOR
BELLIGERENTS ARE PUNISHABLE AS "WAR CRIMINALS."  PARAGRAPH 351 PROVIDES
THAT "MEN AND BODIES OF MEN, WHO, WITHOUT BEING LAWFUL BELLIGERENTS"
"NEVERTHELESS COMMIT HOSTILE ACTS OF ANY KIND" ARE NOT ENTITLED TO THE
PRIVILEGES OF PRISONERS OF WAR IF CAPTURED AND MAY BE TRIED BY MILITARY
COMMISSION AND PUNISHED BY DEATH OR LESSER PUNISHMENT.  AND PARAGRAPH
352 PROVIDES THAT "ARMED PROWLERS  ...  OR PERSONS OF THE ENEMY
TERRITORY WHO STEAL WITHIN THE LINES OF THE HOSTILE ARMY FOR THE
PURPOSE OF ROBBING, KILLING, OR OF DESTROYING BRIDGES, ROADS, OR
CANALS, OF ROBBING OR DESTROYING THE MAIL, OR OF CUTTING THE TELEGRAPH
WIRES, ARE NOT ENTITLED TO BE TREATED AS PRISONERS OF WAR."  AS IS
EVIDENT FROM READING THESE AND RELATED PARAGRAPHS 345-347, THE
SPECIFIED VIOLATIONS ARE INTENDED TO BE ONLY ILLUSTRATIVE OF THE
APPLICABLE PRINCIPLES OF THE COMMON LAW OF WAR, AND NOT AN EXCLUSIVE
ENUMERATION OF THE PUNISHABLE ACTS RECOGNIZED AS SUCH BY THAT LAW.  THE
DEFINITION OF LAWFUL BELLIGERENTS BY PARAGRAPH 9 IS THAT ADOPTED BY
ARTICLE 1, ANNEX TO HAGUE CONVENTION NO. IV OF OCTOBER 18, 1907, TO
WHICH THE UNITED STATES WAS A SIGNATORY AND WHICH WAS RATIFIED BY THE
SENATE IN 1909.  36 STAT. 2295.  THE PREAMBLE TO THE CONVENTION
DECLARES: 

"UNTIL A MORE COMPLETE CODE OF THE LAWS OF WAR HAS BEEN ISSUED, THE
HIGH CONTRACTING PARTIES DEEM IT EXPEDIENT TO DECLARE THAT, IN CASES
NOT INCLUDED IN THE REGULATIONS ADOPTED BY THEM, THE INHABITANTS AND
THE BELLIGERENTS REMAIN UNDER THE PROTECTION AND THE RULE OF THE
PRINCIPLES OF THE LAW OF NATIONS, AS THEY RESULT FROM THE USAGES
ESTABLISHED AMONG CIVILIZED PEOPLES, FROM THE LAWS OF HUMANITY, AND THE
DICTATES OF THE PUBLIC CONSCIENCE." 

OUR GOVERNMENT, BY THUS DEFINING LAWFUL BELLIGERENTS ENTITLED TO BE
TREATED AS PRISONERS OF WAR, HAS RECOGNIZED THAT THERE IS A CLASS OF
UNLAWFUL BELLIGERENTS NOT ENTITLED TO THAT PRIVILEGE, INCLUDING THOSE
WHO, THOUGH COMBATANTS, DO NOT WEAR "FIXED AND DISTINCTIVE EMBLEMS." 
AND BY ARTICLE 15 OF THE ARTICLES OF WAR CONGRESS HAS MADE PROVISION
FOR THEIR TRIAL AND PUNISHMENT BY MILITARY COMMISSION, ACCORDING TO
"THE LAW OF WAR." 

BY A LONG COURSE OF PRACTICAL ADMINISTRATIVE CONSTRUCTION BY ITS
MILITARY AUTHORITIES, OUR GOVERNMENT HAS LIKEWISE RECOGNIZED THAT THOSE
WHO DURING TIME OF WAR PASS SURREPTITIOUSLY FROM ENEMY TERRITORY INTO
OUR OWN, DISCARDING THEIR UNIFORMS UPON ENTRY, FOR THE COMMISSION OF
HOSTILE ACTS INVOLVING DESTRUCTION OF LIFE OR PROPERTY, HAVE THE STATUS
OF UNLAWFUL COMBATANTS PUNISHABLE AS SUCH BY MILITARY COMMISSION.  THIS
PRECEPT OF THE LAW OF WAR HAS BEEN SO RECOGNIZED IN PRACTICE BOTH HERE
AND ABROAD, AND HAS SO GENERALLY BEEN ACCEPTED AS VALID BY AUTHORITIES
ON INTERNATIONAL LAW  FN12  THAT WE THINK IT MUST BE REGARDED AS A RULE
OR PRINCIPLE OF THE LAW OF WAR RECOGNIZED BY THIS GOVERNMENT BY ITS
ENACTMENT OF THE FIFTEENTH ARTICLE OF WAR. 

SPECIFICATION 1 OF THE FIRST CHARGE IS SUFFICIENT TO CHARGE ALL THE
PETITIONERS WITH THE OFFENSE OF UNLAWFUL BELLIGERENCY, TRIAL OF WHICH
IS WITHIN THE JURISDICTION OF THE COMMISSION, AND THE ADMITTED FACTS
AFFIRMATIVELY SHOW THAT THE CHARGE IS NOT MERELY COLORABLE OR WITHOUT
FOUNDATION. 

SPECIFICATION 1 STATES THAT PETITIONERS, "BEING ENEMIES OF THE UNITED
STATES AND ACTING FOR ...  THE GERMAN REICH, A BELLIGERENT ENEMY
NATION, SECRETLY AND COVERTLY PASSED, IN CIVILIAN DRESS, CONTRARY TO
THE LAW OF WAR, THROUGH THE MILITARY AND NAVAL LINES AND DEFENSES OF
THE UNITED STATES  ...  AND WENT BEHIND SUCH LINES, CONTRARY TO THE LAW
OF WAR, IN CIVILIAN DRESS  ...  FOR THE PURPOSE OF COMMITTING  ...
HOSTILE ACTS, AND, IN PARTICULAR, TO DESTROY CERTAIN WAR INDUSTRIES,
WAR UTILITIES AND WAR MATERIALS WITHIN THE UNITED STATES." 

THIS SPECIFICATION SO PLAINLY ALLEGES VIOLATION OF THE LAW OF WAR AS
TO REQUIRE BUT BRIEF DISCUSSION OF PETITIONERS' CONTENTIONS.  AS WE
HAVE SEEN, ENTRY UPON OUR TERRITORY IN TIME OF WAR BY ENEMY
BELLIGERENTS, INCLUDING THOSE ACTING UNDER THE DIRECTION OF THE ARMED
FORCES OF THE ENEMY, FOR THE PURPOSE OF DESTROYING PROPERTY USED OR
USEFUL IN PROSECUTING THE WAR, IS A HOSTILE AND WARLIKE ACT.  IT
SUBJECTS THOSE WHO PARTICIPATE IN IT WITHOUT UNIFORM TO THE PUNISHMENT
PRESCRIBED BY THE LAW OF WAR FOR UNLAWFUL BELLIGERENTS.  IT IS WITHOUT
SIGNIFICANCE THAT PETITIONERS WERE NOT ALLEGED TO HAVE BORNE
CONVENTIONAL WEAPONS OR THAT THEIR PROPOSED HOSTILE ACTS DID NOT
NECESSARILY CONTEMPLATE COLLISION WITH THE ARMED FORCES OF THE UNITED
STATES.  PARAGRAPHS 351 AND 352 OF THE RULES OF LAND WARFARE, ALREADY
REFERRED TO, PLAINLY CONTEMPLATE THAT THE HOSTILE ACTS AND PURPOSES FOR
WHICH UNLAWFUL BELLIGERENTS MAY BE PUNISHED ARE NOT LIMITED TO ASSAULTS
ON THE ARMED FORCES OF THE UNITED STATES.  MODERN WARFARE IS DIRECTED
AT THE DESTRUCTION OF ENEMY WAR SUPPLIES AND THE IMPLEMENTS OF THEIR
PRODUCTION AND TRANSPORTATION, QUITE AS MUCH AS AT THE ARMED FORCES. 
EVERY CONSIDERATION WHICH MAKES THE UNLAWFUL BELLIGERENT PUNISHABLE IS
EQUALLY APPLICABLE WHETHER HIS OBJECTIVE IS THE ONE OR THE OTHER.  THE
LAW OF WAR CANNOT RIGHTLY TREAT THOSE AGENTS OF ENEMY ARMIES WHO ENTER
OUR TERRITORY, ARMED WITH EXPLOSIVES INTENDED FOR THE DESTRUCTION OF
WAR INDUSTRIES AND SUPPLIES, AS ANY THE LESS BELLIGERENT ENEMIES THAN
ARE AGENTS SIMILARLY ENTERING FOR THE PURPOSE OF DESTROYING FORTIFIED
PLACES OR OUR ARMED FORCES.  BY PASSING OUR BOUNDARIES FOR SUCH
PURPOSES WITHOUT UNIFORM OR OTHER EMBLEM SIGNIFYING THEIR BELLIGERENT
STATUS, OR BY DISCARDING THAT MEANS OF IDENTIFICATION AFTER ENTRY, SUCH
ENEMIES BECOME UNLAWFUL BELLIGERENTS SUBJECT TO TRIAL AND PUNISHMENT. 

CITIZENSHIP IN THE UNITED STATES OF AN ENEMY BELLIGERENT DOES NOT
RELIEVE HIM FROM THE CONSEQUENCES OF A BELLIGERENCY WHICH IS UNLAWFUL
BECAUSE IN VIOLATION OF THE LAW OF WAR.  CITIZENS WHO ASSOCIATE
THEMSELVES WITH THE MILITARY ARM OF THE ENEMY GOVERNMENT, AND WITH ITS
AID, GUIDANCE AND DIRECTION ENTER THIS COUNTRY BENT ON HOSTILE ACTS,
ARE ENEMY BELLIGERENTS WITHIN THE MEANING OF THE HAGUE CONVENTION AND
THE LAW OF WAR.  CF. GATES V. GOODLOE, 101 U.S. 612, 615, 617-18.  IT
IS AS AN ENEMY BELLIGERENT THAT PETITIONER HAUPT IS CHARGED WITH
ENTERING THE UNITED STATES, AND UNLAWFUL BELLIGERENCY IS THE GRAVAMEN
OF THE OFFENSE OF WHICH HE IS ACCUSED. 

NOR ARE PETITIONERS ANY THE LESS BELLIGERENTS IF, AS THEY ARGUE, THEY
HAVE NOT ACTUALLY COMMITTED OR ATTEMPTED TO COMMIT ANY ACT OF
DEPREDATION OR ENTERED THE THEATRE OR ZONE OF ACTIVE MILITARY
OPERATIONS.  THE ARGUMENT LEAVES OUT OF ACCOUNT THE NATURE OF THE
OFFENSE WHICH THE GOVERNMENT CHARGES AND WHICH THE ACT OF CONGRESS, BY
INCORPORATING THE LAW OF WAR, PUNISHES.  IT IS THAT EACH PETITIONER, IN
CIRCUMSTANCES WHICH GAVE HIM THE STATUS OF AN ENEMY BELLIGERENT, PASSED
OUR MILITARY AND NAVAL LINES AND DEFENSES OR WENT BEHIND THOSE LINES,
IN CIVILIAN DRESS AND WITH HOSTILE PURPOSE.  THE OFFENSE WAS COMPLETE
WHEN WITH THAT PURPOSE THEY ENTERED - OR, HAVING SO ENTERED, THEY
REMAINED UPON - OUR TERRITORY IN TIME OF WAR WITHOUT UNIFORM OR OTHER
APPROPRIATE MEANS OF IDENTIFICATION.  FOR THAT REASON, EVEN WHEN
COMMITTED BY A CITIZEN, THE OFFENSE IS DISTINCT FROM THE CRIME OF
TREASON DEFINED IN ARTICLE III, SEC. 3 OF THE CONSTITUTION, SINCE THE
ABSENCE OF UNIFORM ESSENTIAL TO ONE IS IRRELEVANT TO THE OTHER.  CF.
MORGAN V. DEVINE, 237 U.S. 632; ALBRECHT V. UNITED STATES, 273 U.S. 1,
11-12. 

BUT PETITIONERS INSIST THAT, EVEN IF THE OFFENSES WITH WHICH THEY ARE
CHARGED ARE OFFENSES AGAINST THE LAW OF WAR, THEIR TRIAL IS SUBJECT TO
THE REQUIREMENT OF THE FIFTH AMENDMENT THAT NO PERSON SHALL BE HELD TO
ANSWER FOR A CAPITAL OR OTHERWISE INFAMOUS CRIME UNLESS ON A
PRESENTMENT OR INDICTMENT OF A GRAND JURY, AND THAT SUCH TRIALS BY
ARTICLE III, SEC. 2, AND THE SIXTH AMENDMENT MUST BE BY JURY IN A CIVIL
COURT.  BEFORE THE AMENDMENTS, SEC. 2 OF ARTICLE III, THE JUDICIARY
ARTICLE, HAD PROVIDED, "THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF
IMPEACHMENT, SHALL BE BY JURY," AND HAD DIRECTED THAT "SUCH TRIAL SHALL
BE HELD IN THE STATE WHERE THE SAID CRIMES SHALL HAVE BEEN COMMITTED." 

PRESENTMENT BY A GRAND JURY AND TRIAL BY A JURY OF THE VICINAGE WHERE
THE CRIME WAS COMMITTED WERE AT THE TIME OF THE ADOPTION OF THE
CONSTITUTION FAMILIAR PARTS OF THE MACHINERY FOR CRIMINAL TRIALS IN THE
CIVIL COURTS.  BUT THEY WERE PROCEDURES UNKNOWN TO MILITARY TRIBUNALS,
WHICH ARE NOT COURTS IN THE SENSE OF THE JUDICIARY ARTICLE, EX PARTE
VALLANDIGHAM, 1 WALL.  243; IN RE VIDAL, 179 U.S. 126; CF. WILLIAMS V.
UNITED STATES, 289 U.S. 553, AND WHICH IN THE NATURAL COURSE OF EVENTS
ARE USUALLY CALLED UPON TO FUNCTION UNDER CONDITIONS PRECLUDING RESORT
TO SUCH PROCEDURES.  AS THIS COURT HAS OFTEN RECOGNIZED, IT WAS NOT THE
PURPOSE OR EFFECT OF SEC. 2 OF ARTICLE III, READ IN THE LIGHT OF THE
COMMON LAW, TO ENLARGE THE THEN EXISTING RIGHT TO A JURY TRIAL.  THE
OBJECT WAS TO PRESERVE UNIMPAIRED TRIAL BY JURY IN ALL THOSE CASES IN
WHICH IT HAD BEEN RECOGNIZED BY THE COMMON LAW AND IN ALL CASES OF A
LIKE NATURE AS THEY MIGHT ARISE IN THE FUTURE, DISTRICT OF COLUMBIA V.
COLTS, 282 U.S. 63, BUT NOT TO BRING WITHIN THE SWEEP OF THE GUARANTY
THOSE CASES IN WHICH IT WAS THEN WELL UNDERSTOOD THAT A JURY TRIAL
COULD NOT BE DEMANDED AS OF RIGHT. 

THE FIFTH AND SIXTH AMENDMENTS, WHILE GUARANTEEING THE CONTINUANCE OF
CERTAIN INCIDENTS OF TRIAL BY JURY WHICH ARTICLE III, SEC. 2 HAD LEFT
UNMENTIONED, DID NOT ENLARGE THE RIGHT TO JURY TRIAL AS IT HAD BEEN
ESTABLISHED BY THAT ARTICLE.  CALLAN V. WILSON, 127 U.S. 540, 549. 
HENCE PETTY OFFENSES TRIABLE AT COMMON LAW WITHOUT A JURY MAY BE TRIED
WITHOUT A JURY IN THE FEDERAL COURTS, NOTWITHSTANDING ARTICLE III, SEC.
2, AND THE FIFTH AND SIXTH AMENDMENTS.  SCHICK V. UNITED STATES, 195
U.S. 65; DISTRICT OF COLUMBIA V. CLAWANS, 300 U.S. 617.  TRIAL BY JURY
OF CRIMINAL CONTEMPTS MAY CONSTITUTIONALLY BE DISPENSED WITH IN THE
FEDERAL COURTS IN THOSE CASES IN WHICH THEY COULD BE TRIED WITHOUT A
JURY AT COMMON LAW.  EX PARTE TERRY, 128 U.S. 289, 302-04; SAVIN,
PETITIONER, 131 U.S. 267, 277; IN RE DEBS, 158 U.S. 564, 594-96; UNITED
STATES V. SHIPP, 203 U.S. 563, 572; BLACKMER V. UNITED STATES, 284 U.S.
421, 440; NYE V. UNITED STATES, 313 U.S. 33, 48; SEE UNITED STATES V.
HUDSON AND GOODWIN, 7 CRANCH 32, 34.  SIMILARLY, AN ACTION FOR DEBT TO
ENFORCE A PENALTY INFLICTED BY CONGRESS IS NOT SUBJECT TO THE
CONSTITUTIONAL RESTRICTIONS UPON CRIMINAL PROSECUTIONS.  UNITED STATES
V. ZUCKER, 161 U.S. 475; UNITED STATES V. REGAN, 232 U.S. 37, AND CASES
CITED. 

ALL THESE ARE INSTANCES OF OFFENSES COMMITTED AGAINST THE UNITED
STATES, FOR WHICH A PENALTY IS IMPOSED, BUT THEY ARE NOT DEEMED TO BE
WITHIN ARTICLE III, SEC. 2, OR THE PROVISIONS OF THE FIFTH AND SIXTH
AMENDMENTS RELATING TO "CRIMES" AND "CRIMINAL PROSECUTIONS."  IN THE
LIGHT OF THIS LONGCONTINUED AND CONSISTENT INTERPRETATION WE MUST
CONCLUDE THAT SEC. 2 OF ARTICLE III AND THE FIFTH AND SIXTH AMENDMENTS
CANNOT BE TAKEN TO HAVE EXTENDED THE RIGHT TO DEMAND A JURY TO TRIALS
BY MILITARY COMMISSION, OR TO HAVE REQUIRED THAT OFFENSES AGAINST THE
LAW OF WAR NOT TRIABLE BY JURY AT COMMON LAW BE TRIED ONLY IN THE CIVIL
COURTS. 

THE FACT THAT "CASES ARISING IN THE LAND OR NAVAL FORCES" ARE
EXCEPTED FROM THE OPERATION OF THE AMENDMENTS DOES NOT MILITATE AGAINST
THIS CONCLUSION.  SUCH CASES ARE EXPRESSLY EXCEPTED FROM THE FIFTH
AMENDMENT, AND ARE DEEMED EXCEPTED BY IMPLICATION FROM THE SIXTH.  EX
PARTE MILLIGAN, SUPRA, 123, 138-39.  IT IS ARGUED THAT THE EXCEPTION,
WHICH EXCLUDES FROM THE AMENDMENT CASES ARISING IN THE ARMED FORCES,
HAS ALSO BY IMPLICATION EXTENDED ITS GUARANTY TO ALL OTHER CASES; THAT
SINCE PETITIONERS, NOT BEING MEMBERS OF THE ARMED FORCES OF THE UNITED
STATES, ARE NOT WITHIN THE EXCEPTION, THE AMENDMENT OPERATES TO GIVE TO
THEM THE RIGHT TO A JURY TRIAL.  BUT WE THINK THIS ARGUMENT
MISCONCEIVES BOTH THE SCOPE OF THE AMENDMENT AND THE PURPOSE OF THE
EXCEPTION. 

WE MAY ASSUME, WITHOUT DECIDING, THAT A TRIAL PROSECUTED BEFORE A
MILITARY COMMISSION CREATED BY MILITARY AUTHORITY IS NOT ONE "ARISING
IN THE LAND  ...  FORCES," WHEN THE ACCUSED IS NOT A MEMBER OF OR
ASSOCIATED WITH THOSE FORCES.  BUT EVEN SO, THE EXCEPTION CANNOT BE
TAKEN TO AFFECT THOSE TRIALS BEFORE MILITARY COMMISSIONS WHICH ARE
NEITHER WITHIN THE EXCEPTION NOR WITHIN THE PROVISIONS OF ARTICLE III,
SEC. 2, WHOSE GUARANTY THE AMENDMENTS DID NOT ENLARGE.  NO EXCEPTION IS
NECESSARY TO EXCLUDE FROM THE OPERATION OF THESE PROVISIONS CASES NEVER
DEEMED TO BE WITHIN THEIR TERMS.  AN EXPRESS EXCEPTION FROM ARTICLE
III, SEC. 2, AND FROM THE FIFTH AND SIXTH AMENDMENTS, OF TRIALS OF
PETTY OFFENSES AND OF CRIMINAL CONTEMPTS HAS NOT BEEN FOUND NECESSARY
IN ORDER TO PRESERVE THE TRADITIONAL PRACTICE OF TRYING THOSE OFFENSES
WITHOUT A JURY.  IT IS NO MORE SO IN ORDER TO CONTINUE THE PRACTICE OF
TRYING, BEFORE MILITARY TRIBUNALS WITHOUT A JURY, OFFENSES COMMITTED BY
ENEMY BELLIGERENTS AGAINST THE LAW OF WAR. 

DERIVED FROM THE RESOLUTION OF THE CONTINENTAL CONGRESS OF AUGUST 21,
1776,  FN13  IMPOSED THE DEATH PENALTY ON ALIEN SPIES "ACCORDING TO THE
LAW AND USAGE OF NATIONS, BY SENTENCE OF A GENERAL COURT MARTIAL." 
THIS ENACTMENT MUST BE REGARDED AS A CONTEMPORARY CONSTRUCTION OF BOTH
ARTICLE III, SEC. 2, AND THE AMENDMENTS AS NOT FORECLOSING TRIAL BY
MILITARY TRIBUNALS, WITHOUT A JURY, OF OFFENSES AGAINST THE LAW OF WAR
COMMITTED BY ENEMIES NOT IN OR ASSOCIATED WITH OUR ARMED FORCES.  IT IS
A CONSTRUCTION OF THE CONSTITUTION WHICH HAS BEEN FOLLOWED SINCE THE
FOUNDING OF OUR GOVERNMENT, AND IS NOW CONTINUED IN THE 82ND ARTICLE OF
WAR.  SUCH A CONSTRUCTION IS ENTITLED TO THE GREATEST RESPECT.  STUART
V. LAIRD, 1 CRANCH 299, 309; FIELD V. CLARK, 143 U.S. 649, 691; UNITED
STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304, 328.  IT HAS NOT HITHERTO
BEEN CHALLENGED, AND, SO FAR AS WE ARE ADVISED, IT HAS NEVER BEEN
SUGGESTED IN THE VERY EXTENSIVE LITERATURE OF THE SUBJECT THAT AN ALIEN
SPY, IN TIME OF WAR, COULD NOT BE TRIED BY MILITARY TRIBUNAL WITHOUT A
JURY.  FN14 

THE EXCEPTION FROM THE AMENDMENTS OF "CASES ARISING IN THE LAND OR
NAVAL FORCES" WAS NOT AIMED AT TRIALS BY MILITARY TRIBUNALS, WITHOUT A
JURY, OF SUCH OFFENSES AGAINST THE LAW OF WAR.  ITS OBJECTIVE WAS QUITE
DIFFERENT - TO AUTHORIZE THE TRIAL BY COURT MARTIAL OF THE MEMBERS OF
OUR ARMED FORCES FOR ALL THAT CLASS OF CRIMES WHICH UNDER THE FIFTH AND
SIXTH AMENDMENTS MIGHT OTHERWISE HAVE BEEN DEEMED TRIABLE IN THE CIVIL
COURTS.  THE CASES MENTIONED IN THE EXCEPTION ARE NOT RESTRICTED TO
THOSE INVOLVING OFFENSES AGAINST THE LAW OF WAR ALONE, BUT EXTEND TO
TRIAL OF ALL OFFENSES, INCLUDING CRIMES WHICH WERE OF THE CLASS
TRADITIONALLY TRIABLE BY JURY AT COMMON LAW.  EX PARTE MASON, 105 U.S.
696; KAHN V. ANDERSON, 255 U.S. 1, 8-9; CF. CALDWELL V. PARKER, 252
U.S. 376. 

SINCE THE AMENDMENTS, LIKE SEC. 2 OF ARTICLE III, DO NOT PRECLUDE ALL
TRIALS OF OFFENSES AGAINST THE LAW OF WAR BY MILITARY COMMISSION
WITHOUT A JURY WHEN THE OFFENDERS ARE ALIENS NOT MEMBERS OF OUR ARMED
FORCES, IT IS PLAIN THAT THEY PRESENT NO GREATER OBSTACLE TO THE TRIAL
IN LIKE MANNER OF CITIZEN ENEMIES WHO HAVE VIOLATED THE LAW OF WAR
APPLICABLE TO ENEMIES.  UNDER THE ORIGINAL STATUTE AUTHORIZING TRIAL OF
ALIEN SPIES BY MILITARY TRIBUNALS, THE OFFENDERS WERE OUTSIDE THE
CONSTITUTIONAL GUARANTY OF TRIAL BY JURY, NOT BECAUSE THEY WERE ALIENS
BUT ONLY BECAUSE THEY HAD VIOLATED THE LAW OF WAR BY COMMITTING
OFFENSES CONSTITUTIONALLY TRIABLE BY MILITARY TRIBUNAL. 

WE CANNOT SAY THAT CONGRESS IN PREPARING THE FIFTH AND SIXTH
AMENDMENTS INTENDED TO EXTEND TRIAL BY JURY TO THE CASES OF ALIEN OR
CITIZEN OFFENDERS AGAINST THE LAW OF WAR OTHERWISE TRIABLE BY MILITARY
COMMISSION, WHILE WITHHOLDING IT FROM MEMBERS OF OUR OWN ARMED FORCES
CHARGED WITH INFRACTIONS OF THE ARTICLES OF WAR PUNISHABLE BY DEATH. 
IT IS EQUALLY INADMISSIBLE TO CONSTRUE THE AMENDMENTS - WHOSE PRIMARY
PURPOSE WAS TO CONTINUE UNIMPAIRED PRESENTMENT BY GRAND JURY AND TRIAL
BY PETIT JURY IN ALL THOSE CASES IN WHICH THEY HAD BEEN CUSTOMARY - AS
EITHER ABOLISHING ALL TRIALS BY MILITARY TRIBUNALS, SAVE THOSE OF THE
PERSONNEL OF OUR OWN ARMED FORCES, OR, WHAT IN EFFECT COMES TO THE SAME
THING, AS IMPOSING ON ALL SUCH TRIBUNALS THE NECESSITY OF PROCEEDING
AGAINST UNLAWFUL ENEMY BELLIGERENTS ONLY ON PRESENTMENT AND TRIAL BY
JURY.  WE CONCLUDE THAT THE FIFTH AND SIXTH AMENDMENTS DID NOT RESTRICT
WHATEVER AUTHORITY WAS CONFERRED BY THE CONSTITUTION TO TRY OFFENSES
AGAINST THE LAW OF WAR BY MILITARY COMMISSION, AND THAT PETITIONERS,
CHARGED WITH SUCH AN OFFENSE NOT REQUIRED TO BE TRIED BY JURY AT COMMON
LAW, WERE LAWFULLY PLACED ON TRIAL BY THE COMMISSION WITHOUT A JURY. 

PETITIONERS, AND ESPECIALLY PETITIONER HAUPT, STRESS THE PRONOUNCEMENT
OF THIS COURT IN THE MILLIGAN CASE, SUPRA, P. 121, THAT THE LAW OF WAR
"CAN NEVER BE APPLIED TO CITIZENS IN STATES WHICH HAVE UPHELD THE
AUTHORITY OF THE GOVERNMENT, AND WHERE THE COURTS ARE OPEN AND THEIR
PROCESS UNOBSTRUCTED."  ELSEWHERE IN ITS OPINION, AT PP. 118, 121-22
AND 131, THE COURT WAS AT PAINS TO POINT OUT THAT MILLIGAN, A CITIZEN
TWENTY YEARS RESIDENT IN INDIANA, WHO HAD NEVER BEEN A RESIDENT OF ANY
OF THE STATES IN REBELLION, WAS NOT AN ENEMY BELLIGERENT EITHER
ENTITLED TO THE STATUS OF A PRISONER OF WAR OR SUBJECT TO THE PENALTIES
IMPOSED UPON UNLAWFUL BELLIGERENTS.  WE CONSTRUE THE COURT'S STATEMENT
AS TO THE INAPPLICABILITY OF THE LAW OF WAR TO MILLIGAN'S CASE AS
HAVING PARTICULAR REFERENCE TO THE FACTS BEFORE IT.  FROM THEM THE
COURT CONCLUDED THAT MILLIGAN, NOT BEING A PART OF OR ASSOCIATED WITH
THE ARMED FORCES OF THE ENEMY, WAS A NON-BELLIGERENT, NOT SUBJECT TO
THE LAW OF WAR SAVE AS - IN CIRCUMSTANCES FOUND NOT THERE TO BE
PRESENT, AND NOT INVOLVED HERE - MARTIAL LAW MIGHT BE CONSTITUTIONALLY
ESTABLISHED. 

THE COURT'S OPINION IS INAPPLICABLE TO THE CASE PRESENTED BY THE
PRESENT RECORD.  WE HAVE NO OCCASION NOW TO DEFINE WITH METICULOUS CARE
THE ULTIMATE BOUNDARIES OF THE JURISDICTION OF MILITARY TRIBUNALS TO
TRY PERSONS ACCORDING TO THE LAW OF WAR.  IT IS ENOUGH THAT PETITIONERS
HERE, UPON THE CONCEDED FACTS, WERE PLAINLY WITHIN THOSE BOUNDARIES,
AND WERE HELD IN GOOD FAITH FOR TRIAL BY MILITARY COMMISSION, CHARGED
WITH BEING ENEMIES WHO, WITH THE PURPOSE OF DESTROYING WAR MATERIALS
AND UTILITIES, ENTERED, OR AFTER ENTRY REMAINED IN, OUR TERRITORY
WITHOUT UNIFORM - AN OFFENSE AGAINST THE LAW OF WAR.  WE HOLD ONLY THAT
THOSE PARTICULAR ACTS CONSTITUTE AN OFFENSE AGAINST THE LAW OF WAR
WHICH THE CONSTITUTION AUTHORIZES TO BE TRIED BY MILITARY COMMISSION. 
SINCE THE FIRST SPECIFICATION OF CHARGE I SETS FORTH A VIOLATION OF
THE LAW OF WAR, WE HAVE NO OCCASION TO PASS ON THE ADEQUACY OF THE
SECOND SPECIFICATION OF CHARGE I, OR TO CONSTRUE THE 81ST AND 82ND
ARTICLES OF WAR FOR THE PURPOSE OF ASCERTAINING WHETHER THE
SPECIFICATIONS UNDER CHARGES II AND III ALLEGE VIOLATIONS OF THOSE
ARTICLES OR WHETHER IF SO CONSTRUED THEY ARE CONSTITUTIONAL.  MCNALLY
V. HILL, 293 U.S. 131. 

THERE REMAINS THE CONTENTION THAT THE PRESIDENT'S ORDER OF JULY 2,
1942, SO FAR AS IT LAYS DOWN THE PROCEDURE TO BE FOLLOWED ON THE TRIAL
BEFORE THE COMMISSION AND ON THE REVIEW OF ITS FINDINGS AND SENTENCE,
AND THE PROCEDURE IN FACT FOLLOWED BY THE COMMISSION, ARE IN CONFLICT
WITH ARTICLES OF WAR 38, 43, 46, 50 1/2 AND 70.  PETITIONERS ARGUE THAT
THEIR TRIAL BY THE COMMISSION, FOR OFFENSES AGAINST THE LAW OF WAR AND
THE 81ST AND 82ND ARTICLES OF WAR, BY A PROCEDURE WHICH CONGRESS HAS
PROHIBITED WOULD INVALIDATE ANY CONVICTION WHICH COULD BE OBTAINED
AGAINST THEM AND RENDERS THEIR DETENTION FOR TRIAL LIKEWISE UNLAWFUL
(SEE MCCLAUGHRY V. DEMING, 186 U.S. 49; UNITED STATES V. BROWN, 206
U.S. 240, 244; RUNKLE V. UNITED STATES, 122 U.S. 543, 555-56; DYNES V.
HOOVER, 20 HOW.  65, 80-81); THAT THE PRESIDENT'S ORDER PRESCRIBES SUCH
AN UNLAWFUL PROCEDURE; AND THAT THE SECRECY SURROUNDING THE TRIAL AND
ALL PROCEEDINGS BEFORE THE COMMISSION, AS WELL AS ANY REVIEW OF ITS
DECISION, WILL PRECLUDE A LATER OPPORTUNITY TO TEST THE LAWFULNESS OF
THE DETENTION. 

PETITIONERS DO NOT ARGUE AND WE DO NOT CONSIDER THE QUESTION WHETHER
THE PRESIDENT IS COMPELLED BY THE ARTICLES OF WAR TO AFFORD UNLAWFUL
ENEMY BELLIGERENTS A TRIAL BEFORE SUBJECTING THEM TO DISCIPLINARY
MEASURES.  THEIR CONTENTION IS THAT, IF CONGRESS HAS AUTHORIZED THEIR
TRIAL BY MILITARY COMMISSION UPON THE CHARGES PREFERRED - VIOLATIONS OF
THE LAW OF WAR AND THE 81ST AND 82ND ARTICLES OF WAR - IT HAS BY THE
ARTICLES OF WAR PRESCRIBED THE PROCEDURE BY WHICH THE TRIAL IS TO BE
CONDUCTED; AND THAT, SINCE THE PRESIDENT HAS ORDERED THEIR TRIAL FOR
SUCH OFFENSES BY MILITARY COMMISSION, THEY ARE ENTITLED TO CLAIM THE
PROTECTION OF THE PROCEDURE WHICH CONGRESS HAS COMMANDED SHALL BE
CONTROLLING. 

WE NEED NOT INQUIRE WHETHER CONGRESS MAY RESTRICT THE POWER OF THE
COMMANDER IN CHIEF TO DEAL WITH ENEMY BELLIGERENTS.  FOR THE COURT IS
UNANIMOUS IN ITS CONCLUSION THAT THE ARTICLES IN QUESTION COULD NOT AT
ANY STAGE OF THE PROCEEDINGS AFFORD ANY BASIS FOR ISSUING THE WRIT. 
BUT A MAJORITY OF THE FULL COURT ARE NOT AGREED ON THE APPROPRIATE
GROUNDS FOR DECISION.  SOME MEMBERS OF THE COURT ARE OF OPINION THAT
CONGRESS DID NOT INTEND THE ARTICLES OF WAR TO GOVERN A PRESIDENTIAL
MILITARY COMMISSION CONVENED FOR THE DETERMINATION OF QUESTIONS
RELATING TO ADMITTED ENEMY INVADERS, AND THAT THE CONTEXT OF THE
ARTICLES MAKES CLEAR THAT THEY SHOULD NOT BE CONSTRUED TO APPLY IN THAT
CLASS OF CASES.  OTHERS ARE OF THE VIEW THAT - EVEN THOUGH THIS TRIAL
IS SUBJECT TO WHATEVER PROVISIONS OF THE ARTICLES OF WAR CONGRESS HAS
IN TERMS MADE APPLICABLE TO "COMMISSIONS" - THE PARTICULAR ARTICLES IN
QUESTION, RIGHTLY CONSTRUED, DO NOT FORECLOSE THE PROCEDURE PRESCRIBED
BY THE PRESIDENT OR THAT SHOWN TO HAVE BEEN EMPLOYED BY THE COMMISSION,
IN A TRIAL OF OFFENSES AGAINST THE LAW OF WAR AND THE 81ST AND 82ND
ARTICLES OF WAR, BY A MILITARY COMMISSION APPOINTED BY THE PRESIDENT. 

ACCORDINGLY, WE CONCLUDE THAT CHARGE I, ON WHICH PETITIONERS WERE
DETAINED FOR TRIAL BY THE MILITARY COMMISSION, ALLEGED AN OFFENSE WHICH
THE PRESIDENT IS AUTHORIZED TO ORDER TRIED BY MILITARY COMMISSION; THAT
HIS ORDER CONVENING THE COMMISSION WAS A LAWFUL ORDER AND THAT THE
COMMISSION WAS LAWFULLY CONSTITUTED; THAT THE PETITIONERS WERE HELD IN
LAWFUL CUSTODY AND DID NOT SHOW CAUSE FOR THEIR DISCHARGE.  IT FOLLOWS
THAT THE ORDERS OF THE DISTRICT COURT SHOULD BE AFFIRMED, AND THAT
LEAVE TO FILE PETITIONS FOR HABEAS CORPUS IN THIS COURT SHOULD BE
DENIED. 

FN1  FROM JUNE 12 TO JUNE 18, 1942, AMAGANSETT BEACH, NEW YORK, AND
PONTE VEDRA BEACH, FLORIDA, WERE WITHIN THE AREA DESIGNATED AS THE
EASTERN DEFENSE COMMAND OF THE UNITED STATES ARMY, AND SUBJECT TO THE
PROVISIONS OF A PROCLAMATION DATED MAY 16, 1942, ISSUED BY LIEUTENANT
GENERAL HUGH A. DRUM, UNITED STATES ARMY, COMMANDING GENERAL, EASTERN
DEFENSE COMMAND (SEE 7 FEDERAL REGISTER 3830).  ON THE NIGHT OF JUNE 12
13, 1942, THE WATERS AROUND AMAGANSETT BEACH, LONG ISLAND, WERE WITHIN
THE AREA COMPRISING THE EASTERN SEA FRONTIER, PURSUANT TO THE ORDERS
ISSUED BY ADMIRAL ERNEST J. KING, COMMANDER IN CHIEF OF THE UNITED
STATES FLEET AND CHIEF OF NAVAL OPERATIONS.  ON THE NIGHT OF JUNE 16
17, 1942, THE WATERS AROUND PONTE VEDRA BEACH, FLORIDA, WERE WITHIN THE
AREA COMPRISING THE GULF SEA FRONTIER, PURSUANT TO SIMILAR ORDERS. 

ON THE NIGHT OF JUNE 12-13, 1942, MEMBERS OF THE UNITED STATES COAST
GUARD, UNARMED, MAINTAINED A BEACH PATROL ALONG THE BEACHES SURROUNDING
AMAGANSETT, LONG ISLAND, UNDER WRITTEN ORDERS MENTIONING THE PURPOSE OF
DETECTING LANDINGS.  ON THE NIGHT OF JUNE 17-18, 1942, THE UNITED
STATES ARMY MAINTAINED A PATROL OF THE BEACHES SURROUNDING AND
INCLUDING PONTE VEDRA BEACH, FLORIDA, UNDER WRITTEN ORDERS MENTIONING
THE PURPOSE OF DETECTING THE LANDING OF ENEMY AGENTS FROM SUBMARINES. 

FN2  7 FEDERAL REGISTER 5103. 

FN3  7 FEDERAL REGISTER 5101. 

FN4  AS APPEARS FROM THE STIPULATION, A DEFENSE OFFERED BEFORE THE
MILITARY COMMISSION WAS THAT PETITIONERS HAD HAD NO INTENTION TO OBEY
THE ORDERS GIVEN THEM BY THE OFFICER OF THE GERMAN HIGH COMMAND. 

FN5  TALBOT V. JANSON, 3 DALL.  133, 153, 159-61; TALBOT V. SEEMAN, 1
CRANCH 1, 40-41; MALEY V. SHATTUCK, 3 CRANCH 458, 488; FITZSIMMONS V.
NEWPORT INS. CO., 4 CRANCH 185, 199; THE RAPID, 8 CRANCH 155, 159-64;
THE ST. LAWRENCE, 9 CRANCH 120, 122; THIRTY HOGSHEADS OF SUGAR V.
BOYLE, 9 CRANCH 191, 197-98; THE ANNE, 3 WHEAT.  435, 447-48; UNITED
STATES V. READING, 18 HOW.  1, 10; PRIZE CASES, 2 BLACK 635, 666-67,
687; THE VENICE, 2 WALL.  258, 274; THE WILLIAM BAGALEY, 5 WALL.  377;
MILLER V. UNITED STATES, 11 WALL.  268; COLEMAN V. TENNESSEE, 97 U.S.
509, 517; UNITED STATES V. PACIFIC RAILROAD, 120 U.S. 227, 233; JURAGUA
IRON CO. V. UNITED STATES, 212 U.S. 297. 

FN6  COMPARE 28 U.S.C. SEC. 41(17), CONFERRING ON THE FEDERAL COURTS
JURISDICTION OVER SUITS BROUGHT BY AN ALIEN FOR A TORT "IN VIOLATION OF
THE LAWS OF NATIONS"; 28 U.S.C. SEC. 341, CONFERRING UPON THE SUPREME
COURT SUCH JURISDICTION OF SUITS AGAINST AMBASSADORS AS A COURT OF LAW
CAN HAVE "CONSISTENTLY WITH THE LAW OF NATIONS"; 28 U.S.C. SEC. 462,
REGULATING THE ISSUANCE OF HABEAS CORPUS WHERE THE PRISONER CLAIMS SOME
RIGHT, PRIVILEGE OR EXEMPTION UNDER THE ORDER OF A FOREIGN STATE, "THE
VALIDITY AND EFFECT WHEREOF DEPEND UPON THE LAW OF NATIONS"; 15 U.S.C.
SECS. 606(B) AND 713(B), AUTHORIZING CERTAIN LOANS TO FOREIGN
GOVERNMENTS, PROVIDED THAT "NO SUCH LOANS SHALL BE MADE IN VIOLATION OF
INTERNATIONAL LAW AS INTERPRETED BY THE DEPARTMENT OF STATE." 

FN7  HAGUE CONVENTION NO. IV OF OCTOBER 18, 1907, 36 STAT. 2295,
ARTICLE I OF THE ANNEX TO WHICH DEFINES THE PERSONS TO WHOM BELLIGERENT
RIGHTS AND DUTIES ATTACH, WAS SIGNED BY 44 NATIONS.  SEE ALSO GREAT
BRITAIN, WAR OFFICE, MANUAL OF MILITARY LAW (1929) CH. XIV, SECS. 17
19; GERMAN GENERAL STAFF, KRIEGSBRAUCH IM LANDKRIEGE (1902) CH. 1; 7
MOORE, DIGEST OF INTERNATIONAL LAW, SEC. 1109; 2 HYDE, INTERNATIONAL
LAW (1922) SEC. 653-54; 2 OPPENHEIM, INTERNATIONAL LAW (6TH ED. 1940)
SEC. 107; BLUNTSCHLI, DROIT INTERNATIONAL (5TH ED. TR. LARDY) SECS. 531
32; 4 CALVO, LE DROIT INTERNATIONAL THEORIQUE ET PRATIQUE (5TH ED.
1896) SECS. 2034-35. 

FN8  GREAT BRITAIN, WAR OFFICE, MANUAL OF MILITARY LAW, CH. XIV,
SECS. 445-451; REGOLAMENTO DI SERVIZIO IN GUERRA, SEC. 133, 3 LEGGI E
DECRETI DEL REGNO D'ITALIA (1896) 3184; 7 MOORE, DIGEST OF
INTERNATIONAL LAW, SEC. 1109; 2 HYDE, INTERNATIONAL LAW, SECS. 654,
652; 2 HALLECK, INTERNATIONAL LAW (4TH ED. 1908) SEC. 4; 2 OPPENHEIM,
INTERNATIONAL LAW, SEC. 254; HALL, INTERNATIONAL LAW, SECS. 127, 135;
BATY & MORGAN, WAR, ITS CONDUCT AND LEGAL RESULTS (1915) 172;
BLUNTSCHLI, DROIT INTERNATIONAL, SECS. 570 BIS. 

FN9  ON SEPTEMBER 29, 1780, MAJOR JOHN ANDRE, ADJUTANT-GENERAL TO THE
BRITISH ARMY, WAS TRIED BY A "BOARD OF GENERAL OFFICERS" APPOINTED BY
GENERAL WASHINGTON, ON A CHARGE THAT HE HAD COME WITHIN THE LINES FOR
AN INTERVIEW WITH GENERAL BENEDICT ARNOLD AND HAD BEEN CAPTURED WHILE
IN DISGUISE AND TRAVELLING UNDER AN ASSUMED NAME.  THE BOARD FOUND THAT
THE FACTS CHARGED WERE TRUE, AND THAT WHEN CAPTURED MAJOR ANDRE HAD IN
HIS POSSESSION PAPERS CONTAINING INTELLIGENCE FOR THE ENEMY, AND
REPORTED THEIR CONCLUSION THAT "MAJOR ANDRE  ...  OUGHT TO BE
CONSIDERED AS A SPY FROM THE ENEMY, AND THAT AGREEABLY TO THE LAW AND
USAGE OF NATIONS  ...  HE OUGHT TO SUFFER DEATH."  MAJOR ANDRE WAS
HANGED ON OCTOBER 2, 1780.  PROCEEDINGS OF A BOARD OF GENERAL OFFICERS
RESPECTING MAJOR JOHN ANDRE, SEPT. 29, 1780, PRINTED AT PHILADELPHIA IN
1780. 

FN10  DURING THE MEXICAN WAR MILITARY COMMISSIONS WERE CREATED IN A
LARGE NUMBER OF INSTANCES FOR THE TRIAL OF VARIOUS OFFENSES.  SEE
GENERAL ORDERS CITED IN 2 WINTHROP, MILITARY LAW (2D ED. 1896) P. 1298,
NOTE 1. 

DURING THE CIVIL WAR THE MILITARY COMMISSION WAS EXTENSIVELY USED FOR
THE TRIAL OF OFFENSES AGAINST THE LAW OF WAR.  AMONG THE MORE
SIGNIFICANT CASES FOR PRESENT PURPOSES ARE THE FOLLOWING: 

ON MAY 22, 1865, T.E. HOGG AND OTHERS WERE TRIED BY A MILITARY
COMMISSION, FOR "VIOLATIONS OF THE LAWS AND USAGES OF CIVILIZED WAR,"
THE SPECIFICATIONS CHARGING THAT THE ACCUSED "BEING COMMISSIONED,
ENROLLED, ENLISTED OR ENGAGED" BY THE CONFEDERATE GOVERNMENT, CAME ON
BOARD A UNITED STATES MERCHANT STEAMER IN THE PORT OF PANAMA "IN THE
GUISE OF PEACEFUL PASSENGERS" WITH THE PURPOSE OF CAPTURING THE VESSEL
AND CONVERTING HER INTO A CONFEDERATE CRUISER.  THE COMMISSION FOUND
THE ACCUSED GUILTY AND SENTENCED THEM TO BE HANGED.  THE REVIEWING
AUTHORITY AFFIRMED THE JUDGMENTS, WRITING AN EXTENSIVE OPINION ON THE
QUESTION WHETHER VIOLATIONS OF THE LAW OF WAR WERE ALLEGED, BUT
MODIFIED THE SENTENCES TO IMPRISONMENT FOR LIFE AND FOR VARIOUS PERIODS
OF YEARS.  DEPT. OF THE PACIFIC, G.O. NO. 52, JUNE 27, 1865. 

ON JANUARY 17, 1865, JOHN Y. BEALL WAS TRIED BY A MILITARY COMMISSION
FOR "VIOLATION OF THE LAWS OF WAR."  THE OPINION BY THE REVIEWING
AUTHORITY REVEALS THAT BEALL, HOLDING A COMMISSION IN THE CONFEDERATE
NAVY, CAME ON BOARD A MERCHANT VESSEL AT A CANADIAN PORT IN CIVILIAN
DRESS AND, WITH ASSOCIATES, TOOK POSSESSION OF THE VESSEL IN LAKE ERIE;
THAT, ALSO IN DISGUISE, HE UNSUCCESSFULLY ATTEMPTED TO DERAIL A TRAIN
IN NEW YORK STATE, AND TO OBTAIN MILITARY INFORMATION.  HIS CONVICTION
BY THE COMMISSION WAS AFFIRMED ON THE GROUND THAT HE WAS BOTH A SPY AND
A "GUERRILLA," AND HE WAS SENTENCED TO BE HANGED.  DEPT. OF THE EAST,
G.O. NO. 14, FEB. 14, 1865. 

ON JANUARY 17, 1865, ROBERT C. KENNEDY, A CAPTAIN OF THE CONFEDERATE
ARMY, WHO WAS SHOWN TO HAVE ATTEMPTED, WHILE IN DISGUISE, TO SET FIRE
TO THE CITY OF NEW YORK, AND TO HAVE BEEN SEEN IN DISGUISE IN VARIOUS
PARTS OF NEW YORK STATE, WAS CONVICTED ON CHARGES OF ACTING AS A SPY
AND VIOLATION OF THE LAW OF WAR "IN UNDERTAKING TO CARRY ON IRREGULAR
AND UNLAWFUL WARFARE."  HE WAS SENTENCED TO BE HANGED, AND THE SENTENCE
WAS CONFIRMED BY THE REVIEWING AUTHORITY.  DEPT. OF THE EAST, G.O. NO.
24, MARCH 20, 1865. 

ON SEPTEMBER 19, 1865, WILLIAM MURPHY, "A REBEL EMISSARY IN THE
EMPLOY OF AND COLLEAGUED WITH REBEL ENEMIES," WAS CONVICTED BY A
MILITARY COMMISSION OF "VIOLATION OF THE LAWS AND CUSTOMS OF WAR" FOR
COMING WITHIN THE LINES AND BURNING A UNITED STATES STEAMBOAT AND OTHER
PROPERTY.  G.C.M.O. NO. 107, APRIL 18, 1866. 

SOLDIERS AND OFFICERS "NOW OR LATE OF THE CONFEDERATE ARMY," WERE
TRIED AND CONVICTED BY MILITARY COMMISSION FOR "BEING SECRETLY WITHIN
THE LINES OF THE UNITED STATES FORCES," JAMES HAMILTON, DEPT. OF THE
OHIO, G.O. NO. 153, SEPT. 18, 1863; FOR "RECRUITING MEN WITHIN THE
LINES," DANIEL DAVIS, G.O. NO. 397, DEC. 18, 1863, AND WILLIAM F.
CORBIN AND T. G. MCGRAW, G.O. NO. 114, MAY 4, 1863; AND FOR "LURKING
ABOUT THE POSTS, QUARTERS, FORTIFICATIONS AND ENCAMPMENTS OF THE ARMIES
OF THE UNITED STATES," ALTHOUGH NOT "AS A SPY," AUGUSTUS A. WILLIAMS,
MIDDLE DEPT., G.O. NO. 34, MAY 5, 1864.  FOR OTHER CASES OF VIOLATIONS
OF THE LAW OF WAR PUNISHED BY MILITARY COMMISSIONS DURING THE CIVIL
WAR, SEE 2 WINTHROP, MILITARY LAWS AND PRECEDENTS (2D ED. 1896) 1310
11. 

FN11  SEE ALSO PARAGRAPH 100:  "A MESSENGER OR AGENT WHO ATTEMPTS TO
STEAL THROUGH THE TERRITORY OCCUPIED BY THE ENEMY, TO FURTHER, IN ANY
MANNER, THE INTERESTS OF THE ENEMY, IF CAPTURED, IS NOT ENTITLED TO THE
PRIVILEGES OF THE PRISONER OF WAR, AND MAY BE DEALT WITH ACCORDING TO
THE CIRCUMSTANCES OF THE CASE." 

COMPARE PARAGRAPH 101. 

FN12  GREAT BRITAIN, WAR OFFICE, MANUAL OF MILITARY LAW (1929) SEC.
445, LISTS A LARGE NUMBER OF ACTS WHICH, WHEN COMMITTED WITHIN ENEMY
LINES BY PERSONS IN CIVILIAN DRESS ASSOCIATED WITH OR ACTING UNDER THE
DIRECTION OF ENEMY ARMED FORCES, ARE "WAR CRIMES."  THE LIST INCLUDES:
"DAMAGE TO RAILWAYS, WAR MATERIAL, TELEGRAPH, OR OTHER MEANS OF
COMMUNICATION, IN THE INTEREST OF THE ENEMY.  ...  "  SECTION 449
STATES THAT ALL "WAR CRIMES" ARE PUNISHABLE BY DEATH. 

AUTHORITIES ON INTERNATIONAL LAW HAVE REGARDED AS WAR CRIMINALS SUCH
PERSONS WHO PASS THROUGH THE LINES FOR THE PURPOSE OF (A) DESTROYING
BRIDGES, WAR MATERIALS, COMMUNICATION FACILITIES, ETC.:  2 OPPENHEIM,
INTERNATIONAL LAW (6TH ED. 1940) SEC. 255; SPAIGHT, AIR POWER AND WAR
RIGHTS (1924) 283; SPAIGHT, WAR RIGHTS ON LAND (1911) 110; PHILLIPSON,
INTERNATIONAL LAW AND THE GREAT WAR (1915) 208; LISZT, DAS VOLKERRECHT
(12 ED. 1925), SEC. 58(B) 4; (B) CARRYING MESSAGES SECRETLY:  HALL,
INTERNATIONAL LAW (8TH ED. 1924) SEC. 188; SPAIGHT, WAR RIGHTS ON LAND
215; 3 MERIGNHAC, DROIT PUBLIC INTERNATIONAL (1912) 296-97; BLUNTSCHLI,
DROIT INTERNATIONAL CODIFIE (5TH ED. TR. LARDY) SEC. 639; 4 CALVO, LE
DROIT INTERNATIONAL THEORIQUE ET PRATIQUE (5TH ED. 1896) SEC. 2119; (C)
ANY HOSTILE ACT:  2 WINTHROP, MILITARY LAW AND PRECEDENTS, (2ND ED.
1896) 1224.  CF. LIEBER, GUERRILLA PARTIES (1862), 2 MISCELLANEOUS
WRITINGS (1881) 288. 

THESE AUTHORITIES ARE UNANIMOUS IN STATING THAT A SOLDIER IN UNIFORM
WHO COMMITS THE ACTS MENTIONED WOULD BE ENTITLED TO TREATMENT AS A
PRISONER OF WAR; IT IS THE ABSENCE OF UNIFORM THAT RENDERS THE OFFENDER
LIABLE TO TRIAL FOR VIOLATION OF THE LAWS OF WAR. 

FN13  SEE MORGAN, COURT-MARTIAL JURISDICTION OVER NON-MILITARY
PERSONS UNDER THE ARTICLES OF WAR, 4 MINNESOTA L. REV. 79, 107-09. 

FN14  IN A NUMBER OF CASES DURING THE REVOLUTIONARY WAR ENEMY SPIES
WERE TRIED AND CONVICTED BY MILITARY TRIBUNALS:  (1) MAJOR JOHN ANDRE,
SEPT. 29, 1780, SEE NOTE 9 SUPRA.  (2) THOMAS SHANKS WAS CONVICTED BY A
"BOARD OF GENERAL OFFICERS" AT VALLEY FORGE ON JUNE 3, 1778, FOR "BEING
A SPY IN THE SERVICE OF THE ENEMY," AND SENTENCED TO BE HANGED.  12
WRITINGS OF WASHINGTON (BICENTENNIAL COMM'N ED.)  14.  (3) MATTHIAS
COLBHART WAS CONVICTED OF "HOLDING A CORRESPONDENCE WITH THE ENEMY" AND
"LIVING AS A SPY AMONG THE CONTINENTAL TROOPS" BY A GENERAL COURT
MARTIAL CONVENED BY ORDER OF MAJOR GENERAL PUTNAM ON JAN. 13, 1778;
GENERAL WASHINGTON, THE COMMANDER IN CHIEF, ORDERED THE SENTENCE OF
DEATH TO BE EXECUTED, 12 ID. 449-50.  (4) JOHN CLAWSON, LUDWICK LASICK,
AND WILLIAM HUTCHINSON WERE CONVICTED OF "LURKING AS SPIES IN THE
VICINITY OF THE ARMY OF THE UNITED STATES" BY A GENERAL COURT MARTIAL
HELD ON JUNE 18, 1780.  THE DEATH SENTENCE WAS CONFIRMED BY THE
COMMANDER IN CHIEF.  19 ID. 23.  (5) DAVID FARNSWORTH AND JOHN BLAIR
WERE CONVICTED OF "BEING FOUND ABOUT THE ENCAMPMENT OF THE UNITED
STATES AS SPIES" BY A DIVISION GENERAL COURT MARTIAL HELD ON OCT. 8,
1778 BY ORDER OF MAJOR GENERAL GATES.  THE DEATH SENTENCE WAS CONFIRMED
BY THE COMMANDER IN CHIEF.  13 ID. 139-40.  (6) JOSEPH BETTYS WAS
CONVICTED OF BEING "A SPY FOR GENERAL BURGOYNE" BY COMING SECRETLY
WITHIN THE AMERICAN LINES, BY A GENERAL COURT MARTIAL HELD ON APRIL 6,
1778 BY ORDER OF MAJOR GENERAL MCDOUGALL.  THE DEATH SENTENCE WAS
CONFIRMED BY THE COMMANDER IN CHIEF.  15 ID. 364.  (7) STEPHEN SMITH
WAS CONVICTED OF "BEING A SPY" BY A GENERAL COURT MARTIAL HELD ON JAN.
6, 1778.  THE DEATH SENTENCE WAS CONFIRMED BY MAJOR GENERAL MCDOUGALL. 
IBID. (8) NATHANIEL AHERLY AND REUBEN WEEKS, LOYALIST SOLDIERS, WERE
SENTENCED TO BE HANGED AS SPIES.  PROCEEDINGS OF A GENERAL COURT
MARTIAL CONVENED AT WEST POINT ACCORDING TO A GENERAL ORDER OF MAJOR
GENERAL ARNOLD, AUG. 20-21, 1780(NATIONAL ARCHIVES, WAR DEPT.,
REVOLUTIONARY WAR RECORDS, MS NO. 31521).  (9) JONATHAN LOVEBERRY, A
LOYALIST SOLDIER, WAS SENTENCED TO BE HANGED AS A SPY.  PROCEEDINGS OF
A GENERAL COURT MARTIAL CONVENED AT THE REQUEST OF MAJOR GENERAL ARNOLD
AT THE TOWNSHIP OF BEDFORD, AUG. 30-31, 1780(ID. MS NO. 31523).  HE
LATER ESCAPED, 20 WRITINGS OF WASHINGTON 253N.  (10) DANIEL TAYLOR, A
LIEUTENANT IN THE BRITISH ARMY, WAS CONVICTED AS A SPY BY A GENERAL
COURT MARTIAL CONVENED ON OCT. 14, 1777, BY ORDER OF BRIGADIER GENERAL
GEORGE CLINTON, AND WAS HANGED.  2 PUBLIC PAPERS OF GEORGE CLINTON
(1900) 443.  (11) JAMES MOLESWORTH WAS CONVICTED AS A SPY AND SENTENCED
TO DEATH BY A GENERAL COURT MARTIAL HELD AT PHILADELPHIA, MARCH 29,
1777; CONGRESS CONFIRMED THE ORDER OF MAJOR GENERAL GATES FOR THE
EXECUTION OF THE SENTENCE.  7 JOURNALS OF THE CONTINENTAL CONGRESS
210.  SEE ALSO CASES OF "M.A."  AND "D.C.," G.O. HEADQUARTERS OF
GENERAL SULLIVAN, PROVIDENCE, R.I., JULY 24, 1778, REPRINTED IN NILES,
PRINCIPLES AND ACTS OF THE REVOLUTION (1822) 369; OF LIEUTENANT PALMER,
9 WRITINGS OF WASHINGTON, 56N; OF DANIEL STRANG, 6 ID. 497N; OF EDWARD
HICKS, 14 ID. 357; OF JOHN MASON AND JAMES OGDEN, EXECUTED AS SPIES
NEAR TRENTON, N.J., ON JAN. 10, 1781, MENTIONED IN HATCH,
ADMINISTRATION OF THE AMERICAN REVOLUTIONARY ARMY (1904) 135 AND VAN
DOREN, SECRET HISTORY OF THE AMERICAN REVOLUTION (1941) 410. 

DURING THE WAR OF 1812, WILLIAM BAKER WAS CONVICTED AS A SPY AND
SENTENCED TO BE HANGED, BY A GENERAL COURT MARTIAL PRESIDED OVER BY
BRIGADIER GENERAL THOMAS A. SMITH AT PLATTSBURG, N.Y., ON MARCH 25,
1814.  NATIONAL ARCHIVES, WAR DEPT., JUDGE ADVOCATE GENERAL'S OFFICE,
RECORDS OF COURTS MARTIAL, MS NO. O-13.  WILLIAM UTLEY, TRIED AS A SPY
BY A COURT MARTIAL HELD AT PLATTSBURG, MARCH 3-5, 1814, WAS ACQUITTED. 
ID., MS NO. X-161.  ELIJAH CLARK WAS CONVICTED AS A SPY, AND SENTENCED
TO BE HANGED, BY A GENERAL COURT MARTIAL HELD AT BUFFALO, N.Y., AUG. 5
8, 1812.  HE WAS ORDERED RELEASED BY PRESIDENT MADISON ON THE GROUND
THAT HE WAS AN AMERICAN CITIZEN.  MILITARY MONITOR, VOL. I, NO. 23,
FEB. 1, 1813, PP. 121-122; MALTBY, TREATISE ON COURTS MARTIAL AND
MILITARY LAW (1813) 35-36. 

IN 1862 CONGRESS AMENDED THE SPY STATUTE TO INCLUDE "ALL PERSONS"
INSTEAD OF ONLY ALIENS.  12 STAT. 339, 340; SEE ALSO 12 STAT. 731,
737.  FOR THE LEGISLATIVE HISTORY, SEE MORGAN, COURT-MARTIAL
JURISDICTION OVER NON-MILITARY PERSONS UNDER THE ARTICLES OF WAR, 4
MINNESOTA L. REV. 79, 109-11.  DURING THE CIVIL WAR A NUMBER OF
CONFEDERATE OFFICERS AND SOLDIERS, FOUND WITHIN THE UNION LINES IN
DISGUISE, WERE TRIED AND CONVICTED BY MILITARY COMMISSION FOR BEING
SPIES.  CHARLES H. CLIFFORD, G.O. NO. 135, MAY 18, 1863; WILLIAM S.
WALLER, G.O. NO. 269, AUG. 4, 1863; ALFRED YATES AND GEORGE W. CASEY,
G.O. NO. 382, NOV. 28, 1863; JAMES R. HOLTON AND JAMES TAYLOR, G.C.M.O.
NO. 93, MAY 13, 1864; JAMES MCGREGORY, G.C.M.O. NO. 152, JUNE 4, 1864;
E.S. DODD, DEPT. OF OHIO, G.O. NO. 3, JAN. 5, 1864.  FOR OTHER CASES OF
SPIES TRIED BY MILITARY COMMISSION, SEE 2 WINTHROP, MILITARY LAW AND
PRECEDENTS, 1193 ET SEQ. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :







OVERNIGHT MOTOR CO. V. MISSEL, 316 U.S. 572 


NO. 939.  ARGUED APRIL 6, 7, 1942.  - DECIDED JUNE 8, 1942.  - 126 F.2D
98, AFFIRMED. 


1.  AN EMPLOYEE OF AN INTERSTATE MOTOR TRANSPORTATION COMPANY, WHO
ACTED AS RATE CLERK AND PERFORMED OTHER INCIDENTAL DUTIES, HELD
"ENGAGED IN COMMERCE" WITHIN THE MEANING OF SEC. 7 OF THE FAIR LABOR
STANDARDS ACT OF 1938, AND ENTITLED TO THE BENEFIT OF ITS OVERTIME
PROVISIONS.  P. 574. 

2.  IN THE EXERCISE OF ITS POWER TO REGULATE WAGES AND HOURS OF
EMPLOYMENT IN INTERSTATE COMMERCE, CONGRESS MAY INCREASE WAGES FOR
OVERTIME, NOT MERELY TO SAFEGUARD THE HEALTH OF EMPLOYEES, BUT ALSO TO
DISCOURAGE OVERTIME WORK, WITH A VIEW TO SPREADING EMPLOYMENT AND FOR
OTHER PURPOSES.  P. 576. 

3.  IT IS A PURPOSE OF THE FAIR LABOR STANDARDS ACT NOT MERELY TO
INCREASE SUBSTANDARD PAY, BUT TO DISCOURAGE OVERTIME WORK BY REQUIRING
EXTRA PAY FOR IT EVEN THOUGH THE WAGES, AS CONTRACTED FOR AND PAID BY
THE EMPLOYER, FOR BOTH REGULAR HOURS AND OVERTIME, EXCEED THE STATUTORY
MINIMUM.  P. 577. 

4.  SECTION 7(A) OF THE ACT REQUIRES PAYMENT TO THE EMPLOYEE, FOR
OVERTIME, OF NOT LESS THAN ONE AND ONE-HALF TIMES THE "REGULAR RATE AT
WHICH HE IS EMPLOYED," MEANING THE RATE ACTUALLY AGREED ON AND PAID BY
THE EMPLOYER IF GREATER THAN THE STATUTORY MINIMUM.  P. 577. 

5.  WHERE THE EMPLOYMENT CONTRACT IS FOR A FIXED WEEKLY WAGE AND
VARIABLE OR FLUCTUATING HOURS OF WORK, THE "REGULAR RATE" IN THE
STATUTORY SENSE, FOR ANY PARTICULAR WEEK, IS THE QUOTIENT OF THE AMOUNT
PAID PER WEEK DIVIDED BY THE NUMBER OF HOURS WORKED IN THAT WEEK. 
WALLING V. BELO CORP., POST, P. 624, DIST'D.  P. 580. 

6.  THE PROVISION OF SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT
MAKING AN EMPLOYER WHO VIOLATES SEC. 6 OR SEC. 7 LIABLE TO THE
EMPLOYEES AFFECTED, NOT ONLY IN THE AMOUNT OF HIS UNPAID MINIMUM WAGES
OR UNPAID OVERTIME COMPENSATION, BUT IN AN ADDITIONAL EQUAL AMOUNT AS
LIQUIDATED DAMAGES,  - HELD CONSTITUTIONAL AS APPLIED TO AN EMPLOYER
WHOSE FAILURE TO COMPLY RESULTED FROM INABILITY TO DETERMINE WHETHER
THE EMPLOYEE WAS COVERED BY THE ACT.  P. 581. 

OVERNIGHT MOTOR TRANSPORTATION CO., INC. V. MISSEL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 315 U.S. 791, TO REVIEW A JUDGMENT WHICH REVERSED A
JUDGMENT OF THE DISTRICT COURT, 40 F.SUPP.  174, IN AN ACTION BROUGHT
AGAINST AN EMPLOYER BY ITS EMPLOYEE TO RECOVER ALLEGED UNPAID OVERTIME
COMPENSATION AND AN EQUAL AMOUNT IN ADDITION AS LIQUIDATED DAMAGES, AND
COUNSEL FEE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE APPLICATION OF THE OVERTIME SECTION OF THE
FAIR LABOR STANDARDS ACT OF 1938  FN1  TO AN EMPLOYEE WORKING IRREGULAR
HOURS FOR A FIXED WEEKLY WAGE. 

RESPONDENT, MISSEL, WAS AN EMPLOYEE OF THE PETITIONER, OVERNIGHT
MOTOR TRANSPORTATION COMPANY, A CORPORATION ENGAGED IN INTERSTATE MOTOR
TRANSPORTATION AS A COMMON CARRIER.  HE ACTED AS RATE CLERK AND
PERFORMED OTHER INCIDENTAL DUTIES, NONE OF WHICH WERE CONNECTED WITH
SAFETY OF OPERATION.  THE WORK FOR WHICH HE WAS EMPLOYED INVOLVED WIDE
FLUCTUATIONS IN THE TIME REQUIRED TO COMPLETE HIS DUTIES.  THE
EMPLOYMENT OF RESPONDENT BEGAN BEFORE THE EFFECTIVE DATE OF THE FAIR
LABOR STANDARDS ACT, OCTOBER 24, 1938, AND TERMINATED OCTOBER 19,
1940.  UNTIL NOVEMBER 1, 1938, HIS SALARY WAS $25.50 PER WEEK AND
THEREAFTER $27.50.  TIME RECORDS ARE AVAILABLE FOR ONLY A THIRD OF THE
CRITICAL PERIOD, AND THESE SHOW AN AVERAGE WORKWEEK OF 65 HOURS, WITH A
MAXIMUM OF 80 FOR EACH OF TWO WEEKS IN THE FIRST YEAR OF THE ACT'S
OPERATION AND A MAXIMUM OF 75 HOURS IN EACH OF THREE WEEKS IN THE
SECOND YEAR.  NOTHING ABOVE THE WEEKLY WAGE WAS PAID, BECAUSE THESE
MAXIMUM WORKWEEKS, COMPUTED AT THE STATUTORY MINIMUM RATES WITH TIME
AND A HALF FOR OVERTIME FOR THE YEARS IN QUESTION, WOULD NOT REQUIRE AN
ADDITION TO THE WEEKLY WAGE. 

RESPONDENT BROUGHT A STATUTORY ACTION TO RECOVER ALLEGED UNPAID
OVERTIME COMPENSATION IN SUCH SUM AS MIGHT BE FOUND DUE HIM, AN
ADDITIONAL EQUAL AMOUNT AS LIQUIDATED DAMAGES, AND COUNSEL FEE.  FN2
THE TRIAL COURT, REFUSING TO HEAR EVIDENCE ON THE PRECISE AMOUNT
CLAIMED, DECIDED IN FAVOR OF THE PETITIONER ON THE GROUND THAT AN
AGREEMENT FOR A FIXED WEEKLY WAGE FOR IRREGULAR HOURS SATISFIED THE
REQUIREMENTS OF THE ACT.  UNDER SUCH CIRCUMSTANCES THE COURT WAS OF THE
VIEW THAT PAY WOULD BE ADEQUATE WHICH AMOUNTED TO THE REQUIRED MINIMUM
FOR THE REGULAR HOURS AND TIME AND A HALF THE MINIMUM FOR OVERTIME.  40
F.SUPP.  174.  THE CIRCUIT COURT OF APPEALS REVERSED WITH DIRECTIONS TO
ENTER JUDGMENT FOR THE PLAINTIFF IN ACCORDANCE WITH ITS OPINION, AN
ORDER WHICH WE INTERPRET AS AUTHORIZING A HEARING IN THE TRIAL COURT AS
TO THE AMOUNTS DUE.  126 F.2D 98.  AS THE QUESTIONS INVOLVED WERE
IMPORTANT IN THE ADMINISTRATION OF THE FAIR LABOR STANDARDS ACT, WE
GRANTED CERTIORARI. 

PETITIONER RENEWS HERE ITS CONTENTIONS THAT THE PRIVATE RIGHT TO
CONTRACT FOR A FIXED WEEKLY WAGE WITH EMPLOYEES IN COMMERCE IS
RESTRICTED ONLY BY THE REQUIREMENT THAT THE WAGES PAID SHOULD COMPLY
WITH THE MINIMUM WAGE SCHEDULE OF THE FAIR LABOR STANDARDS ACT, SEC. 6,
WITH OVERTIME PAY AT TIME AND A HALF THAT MINIMUM, THAT IN ANY EVENT
THE ACT DOES NOT PRECLUDE LUMP SUM SALARIES IN EXCESS OF THE MINIMUM,
AND THAT A CONTRARY INTERPRETATION OF THE STATUTE WOULD RENDER IT
UNCONSTITUTIONAL. 

IT IS PLAIN THAT THE RESPONDENT AS A TRANSPORTATION WORKER WAS
ENGAGED IN COMMERCE WITHIN THE MEANING OF THE ACT,  FN3  AND UNLESS
SPECIFICALLY EXEMPTED WAS ENTITLED TO WHATEVER BENEFITS THE OVERTIME
PROVISIONS CONFERRED. 

WHILE NOW CONCEDING THAT UNITED STATES V. DARBY, 312 U.S. 100,
SETTLES THE CONSTITUTIONAL POWER OF CONGRESS TO LEGISLATE AGAINST LABOR
CONDITIONS DETRIMENTAL TO A MINIMUM STANDARD OF LIVING REQUIRED FOR THE
GENERAL WELL-BEING OF WORKERS, PETITIONER ARGUES THAT THERE IS NO POWER
UNDER THE CONSTITUTION TO REGULATE THE HOURS OR WAGES OF WORKERS WHOSE
PAY, IN EVERY INSTANCE, AT LEAST EQUALS THE MINIMUM AND WHOSE HOURS ARE
NOT INJURIOUS TO HEALTH.  FREEDOM OF CONTRACT BETWEEN EMPLOYER AND
EMPLOYEE, IT IS URGED, IS DESTROYED BY SUCH AN INTERPRETATION.  FN4
BUT HOURS OR WAGES NOT PATENTLY BURDENSOME TO HEALTH MAY YET BE SUBJECT
TO REGULATION TO ACHIEVE OTHER PURPOSES.  WE ASSUME HERE THE STATUTORY
OBJECTIVES DISCUSSED LATER, I.E., THAT THE ACT IS AIMED AT HOURS AS
WELL AS WAGES.  THE COMMERCE POWER IS PLENARY,  FN5  MAY DEAL WITH
ACTIVITIES IN CONNECTION WITH PRODUCTION FOR COMMERCE,  FN6  AND, AS
SAID IN THE DARBY CASE, MAY EXTEND "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."  P. 118.  LONG HOURS MAY
IMPEDE THE FREE INTERSTATE FLOW OF COMMODITIES BY CREATING FRICTION
BETWEEN PRODUCTION AREAS WITH DIFFERENT LENGTH WORK WEEKS, BY OFFERING
OPPORTUNITIES FOR UNFAIR COMPETITION, THROUGH UNDUE EXTENSION OF HOURS,
AND BY INDUCING LABOR DISCONTENT APT TO LEAD TO INTERFERENCE WITH
COMMERCE THROUGH INTERRUPTION OF WORK.  OVERTIME PAY PROBABLY WILL NOT
SOLVE ALL PROBLEMS OF OVERTIME WORK, BUT CONGRESS MAY PROPERLY USE IT
TO LESSEN THE IRRITATIONS.  SUBSTANDARD LABOR CONDITIONS WERE DEEMED BY
CONGRESS TO BE "INJURIOUS TO THE COMMERCE AND TO THE STATES FROM AND TO
WHICH THE COMMERCE FLOWS."  UNITED STATES V. DARBY, 312 U.S. 100, 115. 
TO PROTECT THAT COMMERCE FROM THE CONSEQUENCES OF PRODUCTION OF GOODS
UNDER SUBSTANDARD CONDITIONS, IT MAY CHOOSE MEANS REASONABLY ADAPTED TO
THOSE ENDS, INCLUDING REGULATION OF INTRASTATE ACTIVITIES, P. 121, BY
MINIMUM WAGE AND MAXIMUM HOUR REQUIREMENTS, P. 123.  COMPARE SANTA CRUZ
CO. V. LABOR BOARD, 303 U.S. 453, 466.  IF OVERTIME PAY MAY HAVE THIS
EFFECT UPON COMMERCE, PRIVATE CONTRACTS MADE BEFORE OR AFTER THE
PASSAGE OF LEGISLATION REGULATING OVERTIME CANNOT TAKE THE OVERTIME
TRANSACTIONS "FROM THE REACH OF DOMINANT CONSTITUTIONAL POWER."  NORMAN
V. B. & O.R. CO., 294 U.S. 240, 306-311.  IF, IN THE JUDGMENT OF
CONGRESS, TIME AND A HALF FOR OVERTIME HAS A SUBSTANTIAL EFFECT ON
THESE CONDITIONS, IT LIES WITH CONGRESS' POWER TO USE IT TO PROMOTE THE
EMPLOYEES' WELL-BEING. 

STATUTORY CONSTRUCTION.  THE PETITIONER ATTACKS THE BASIC CONCEPTIONS
UPON WHICH THE CIRCUIT COURT OF APPEALS DETERMINED THAT THE
COMPENSATION PAID BY THE RESPONDENT VIOLATED SEC. 7(A) OF THE ACT.  FN7
THAT COURT FELT THAT "ONE OF THE FUNDAMENTAL PURPOSES OF THE ACT WAS
TO INDUCE WORKSHARING AND RELIEVE UNEMPLOYMENT BY REDUCING HOURS OF
WORK."  WE AGREE THAT THE PURPOSE OF THE ACT WAS NOT LIMITED TO A
SCHEME TO RAISE SUBSTANDARD WAGES FIRST BY A MINIMUM WAGE AND THEN BY
INCREASED PAY FOR OVERTIME WORK.  OF COURSE, THIS WAS ONE EFFECT OF THE
TIME AND A HALF PROVISION, BUT ANOTHER AND AN INTENDED EFFECT WAS TO
REQUIRE EXTRA PAY FOR OVERTIME WORK BY THOSE COVERED BY THE ACT EVEN
THOUGH THEIR HOURLY WAGES EXCEEDED THE STATUTORY MINIMUM.  THE
PROVISION OF SEC. 7(A) REQUIRING THIS EXTRA PAY FOR OVERTIME IS CLEAR
AND UNAMBIGUOUS.  IT CALLS FOR 150% OF THE REGULAR, NOT THE MINIMUM,
WAGE.  BY THIS REQUIREMENT, ALTHOUGH OVERTIME WAS NOT FLATLY
PROHIBITED, FINANCIAL PRESSURE WAS APPLIED TO SPREAD EMPLOYMENT TO
AVOID THE EXTRA WAGE AND WORKERS WERE ASSURED ADDITIONAL PAY TO
COMPENSATE THEM FOR THE BURDEN OF A WORKWEEK BEYOND THE HOURS FIXED IN
THE ACT.  IN A PERIOD OF WIDESPREAD UNEMPLOYMENT AND SMALL PROFITS, THE
ECONOMY INHERENT IN AVOIDING EXTRA PAY WAS EXPECTED TO HAVE AN
APPRECIABLE EFFECT IN THE DISTRIBUTION OF AVAILABLE WORK.  REDUCTION OF
HOURS WAS A PART OF THE PLAN FROM THE BEGINNING.  "A FAIR DAY'S PAY FOR
A FAIR DAY'S WORK" WAS THE OBJECTIVE STATED IN THE PRESIDENTIAL MESSAGE
WHICH INITIATED THE LEGISLATION N8.  THAT MESSAGE REFERRED TO A
"GENERAL MAXIMUM WORKING WEEK," "LONGER HOURS ON THE PAYMENT OF TIME
AND A HALF FOR OVERTIME" AND THE EVIL OF "OVERWORK" AS WELL AS
"UNDERPAY."  THE MESSAGE OF NOVEMBER 15, 1937, CALLING FOR THE
ENACTMENT OF THIS TYPE OF LEGISLATION REFERRED AGAIN TO PROTECTION FROM
EXCESSIVE HOURS.  FN9  SENATE REPORT NO. 884, JUST CITED, PAGE 4, THE
COMPANION HOUSE REPORT  FN10  AND THE CONFERENCE REPORT  FN11  ALL
SPOKE OF MAXIMUM HOURS AS A SEPARATELY DESIRABLE OBJECT.  INDEED, THE
FORM OF THE ACT ITSELF IN SETTING UP TWO SECTIONS OF STANDARDS, SEC. 6
FOR WAGES AND SEC. 7 FOR HOURS, EMPHASIZES THE DUALITY OF THE
CONGRESSIONAL PURPOSE.  THE EXISTENCE OF SUCH A PURPOSE IS NO LESS
CERTAIN BECAUSE CONGRESS CHOSE TO USE A LESS DRASTIC FORM OF LIMITATION
THAN OUTRIGHT PROHIBITION OF OVERTIME.  WE CONCLUDE THAT THE ACT WAS
DESIGNED TO REQUIRE PAYMENT FOR OVERTIME AT TIME AND A HALF THE REGULAR
PAY, WHERE THAT PAY IS ABOVE THE MINIMUM, AS WELL AS WHERE THE REGULAR
PAY IS AT THE MINIMUM.  FN12 

WE NOW COME TO THE DETERMINATION OF THE MEANING OF THE WORDS "THE
REGULAR RATE AT WHICH HE IS EMPLOYED."  SINCE WE HAVE PREVIOUSLY
DETERMINED IN THIS OPINION, IN THE DISCUSSION OF PETITIONER'S OBJECTION
TO THE APPLICATION OF THE ACT ON THE GROUND OF UNCONSTITUTIONALITY,
THAT THE SCOPE OF THE COMMERCE POWER IS BROAD ENOUGH TO SUPPORT FEDERAL
REGULATION OF HOURS, WE ARE CONCERNED AT THIS POINT ONLY WITH THE
METHOD OF FINDING THE REGULAR RATE UNDER THE CONTRACT WITH RESPONDENT. 
CONGRESS MIGHT HAVE SOUGHT ITS OBJECTIVE OF CLEARING THE CHANNEL OF
COMMERCE OF THE OBSTACLES OF BURDENSOME LABOR DISPUTES BY MINIMUM WAGE
LEGISLATION ONLY.  WE HAVE SEEN THAT IT ADDED OVERTIME PAY.  THE WAGES
FOR MINIMUM PAY ARE EXPRESSED IN TERMS OF SO MUCH AN HOUR.  SEC.
6(A)(1) - "NOT LESS THAN 25 CENTS AN HOUR" WITH RAISES FOR SUCCEEDING
YEARS OR BY ORDER OF THE ADMINISTRATOR UNDER SEC. 8.  CF. OPP COTTON
MILLS V. ADMININSTRATOR, 312 U.S. 126.  NEITHER THE WAGE, THE HOUR NOR
THE OVERTIME PROVISIONS OF SECS. 6 AND 7 ON THEIR PASSAGE SPOKE
SPECIFICALLY OF ANY OTHER METHOD OF PAYING WAGES EXCEPT BY HOURLY
RATE.  FN13  BUT WE HAVE NO DOUBT THAT PAY BY THE WEEK, TO BE REDUCED
BY SOME METHOD OF COMPUTATION TO HOURLY RATES, WAS ALSO COVERED BY THE
ACT.  FN14  IT IS LIKEWISE ABUNDANTLY CLEAR FROM THE WORDS OF SEC. 7
THAT THE UNIT OF TIME UNDER THAT SECTION WITHIN WHICH TO DISTINGUISH
REGULAR FROM OVERTIME IS THE WEEK.  "NO EMPLOYER SHALL  ...  EMPLOY ANY
OF HIS EMPLOYEES  ...  (1) FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS
...  "  SEC. 7(A)(1).  FN15 

NO PROBLEM IS PRESENTED IN ASSIMILATING THE COMPUTATION OF OVERTIME
FOR EMPLOYEES UNDER CONTRACT FOR A FIXED WEEKLY WAGE FOR REGULAR
CONTRACT HOURS WHICH ARE THE ACTUAL HOURS WORKED,  FN16  TO SIMILAR
COMPUTATIONS FOR EMPLOYEES ON HOURLY RATES.  WHERE THE EMPLOYMENT
CONTRACT IS FOR A WEEKLY WAGE WITH VARIABLE OR FLUCTUATING HOURS THE
SAME METHOD OF COMPUTATION PRODUCES THE REGULAR RATE FOR EACH WEEK.  AS
THAT RATE IS ON AN HOURLY BASIS, IT IS REGULAR IN THE STATUTORY SENSE,
INASMUCH AS THE RATE PER HOUR DOES NOT VARY FOR THE ENTIRE WEEK, THOUGH
WEEK BY WEEK THE REGULAR RATE VARIES WITH THE NUMBER OF HOURS WORKED. 
IT IS TRUE THAT THE LONGER THE HOURS, THE LESS THE RATE AND THE PAY PER
HOUR.  THIS IS NOT AN ARGUMENT, HOWEVER, AGAINST THIS METHOD OF
DETERMINING THE REGULAR RATE OF EMPLOYMENT FOR THE WEEK IN QUESTION. 
APART FROM THE ACT, IF THERE IS A FIXED WEEKLY WAGE REGARDLESS OF THE
LENGTH OF THE WORKWEEK, THE LONGER THE HOURS THE LESS ARE THE EARNINGS
PER HOUR.  THIS METHOD OF COMPUTATION HAS BEEN APPROVED BY EACH CIRCUIT
COURT OF APPEALS WHICH HAS CONSIDERED SUCH PROBLEMS.  SEE WARREN
BRADSHAW DRILLING CO. V. HALL, 124 F.2D 42, 44; BUMPUS V. CONTINENTAL
BAKING CO., 124 F.2D 549, 552, CF. CARLETON SCREW PRODUCTS CO. V.
FLEMING, 126 F.2D 537, 541.  IT IS THIS QUOTIENT WHICH IS THE "REGULAR
RATE AT WHICH AN EMPLOYEE IS EMPLOYED" UNDER CONTRACTS OF THE TYPES
DESCRIBED AND APPLIED IN THIS PARAGRAPH FOR FIXED WEEKLY COMPENSATION
FOR HOURS, CERTAIN OR VARIABLE.  FN17 

PETITIONER INVOKES THE PRESUMPTION THAT CONTRACTING PARTIES
CONTEMPLATE COMPLIANCE WITH LAW AND CONTENDS THAT ACCORDINGLY THERE IS
NO WARRANT FOR CONSTRUING THE CONTRACT AS PAYING THE EMPLOYEE ONLY HIS
BASE PAY OR "REGULAR RATE," REGARDLESS OF HOURS WORKED.  IT IS TRUE
THAT THE WAGE PAID WAS SUFFICIENTLY LARGE TO COVER BOTH BASE PAY AND
FIFTY PER CENT ADDITIONAL FOR THE HOURS ACTUALLY WORKED OVER THE
STATUTORY MAXIMUM WITHOUT VIOLATING SECTION SIX.  BUT THERE WAS NO
CONTRACTUAL LIMIT UPON THE HOURS WHICH PETITIONER COULD HAVE REQUIRED
RESPONDENT TO WORK FOR THE AGREED WAGE, HAD HE SEEN FIT TO DO SO, AND
NO PROVISION FOR ADDITIONAL PAY IN THE EVENT THE HOURS WORKED REQUIRED
MINIMUM COMPENSATION GREATER THAN THE FIXED WAGE.  IMPLICATION CANNOT
MEND A CONTRACT SO DEFICIENT IN COMPLYING WITH THE LAW.  THIS CONTRACT
DIFFERS FROM THE ONE IN WALLING V. BELO CORP., POST, P. 624, WHERE THE
CONTRACT SPECIFIED AN HOURLY RATE AND NOT LESS THAN TIME AND A HALF FOR
OVERTIME, WITH A GUARANTY OF A FIXED WEEKLY SUM, AND REQUIRED THE
EMPLOYER TO PAY MORE THAN THE WEEKLY GUARANTY WHERE THE HOURS WORKED AT
THE CONTRACT RATE EXCEEDED THAT SUM. 

IN THE CIRCUIT COURT OF APPEALS  FN18  IT WAS HELD THAT THE
LIQUIDATED DAMAGES PROVISION, SEC. 16(B) OF THE ACT, 52 STAT. 1069, WAS
MANDATORY ON THE COURTS, REGARDLESS OF THE GOOD FAITH OF THE EMPLOYER
OR THE REASONABLENESS OF HIS ATTITUDE.  PETITIONER ATTACKS THIS
CONCLUSION AS A DENIAL OF DUE PROCESS BECAUSE, IF THE DAMAGE PROVISION
IS MANDATORY, THE EMPLOYER IS "WITHOUT OPPORTUNITY TO TEST THE ISSUES
BEFORE THE COURTS," CITING EX PARTE YOUNG, 209 U.S. 123, WADLEY
SOUTHERN RY. CO. V. GEORGIA, 235 U.S. 651, AND OTHER SIMILAR CASES. 
PETITIONER POINTS OUT THAT, IF THERE WAS A FAILURE TO PAY THE STATUTORY
OVERTIME, IT RESULTED FROM AN INABILITY TO DETERMINE WHETHER THE
EMPLOYEE WAS COVERED BY THE ACT.    SECTION 13(B)(1)  FN19  EXEMPTS
FROM SEC. 7 EMPLOYEES FOR WHOM THE INTERSTATE COMMERCE COMMISSION HAS
POWER TO ESTABLISH MAXIMUM HOURS OF SERVICE.  THIS EXEMPTION WAS
DERIVED FROM THE MOTOR CARRIER ACT OF 1935, 49 STAT. 543, WHICH
AUTHORIZED THE COMMISSION TO REGULATE "MAXIMUM HOURS OF SERVICE OF
EMPLOYEES."  A DEFINITIVE ORDER LEAVING EMPLOYEES WITH THE DUTIES OF
RESPONDENT SUBJECT TO THE FAIR LABOR STANDARDS ACT WAS NOT PASSED BY
THE COMMISSION UNTIL MARCH 4, 1941,  FN20  AFTER RESPONDENT'S
EMPLOYMENT ENDED.  THIS CONCLUSION, HOWEVER, WAS FORESHADOWED BY THE
RULING OF THE COMMISSION, DECEMBER 29, 1937  FN21  THAT IT WOULD LIMIT
REGULATIONS CONCERNING MAXIMUM HOURS TO EMPLOYEES WHOSE FUNCTIONS
AFFECTED THE SAFETY OF OPERATIONS.  OTHER ORDERS, BULLETINS AND
OPINIONS POINTING TO THE FINAL CONCLUSION INTERVENED.  FN22  THESE
VARIOUS DETERMINATIONS NOW MAKE IT CLEAR THAT RESPONDENT WAS SUBJECT AT
ALL TIMES SINCE THE EFFECTIVE DATE OF THE FAIR LABOR STANDARDS ACT TO
ITS PROVISIONS.  THE INTERSTATE COMMERCE COMMISSION NEVER HAD THE POWER
TO REGULATE HIS HOURS. 

PERPLEXING AS PETITIONER'S PROBLEM MAY HAVE BEEN, THE DIFFICULTY DOES
NOT WARRANT SHIFTING THE BURDEN TO THE EMPLOYEE.  THE WAGES WERE
SPECIFIED FOR HIM BY THE STATUTE,  FN23  AND HE WAS NO MORE AT FAULT
THAN THE EMPLOYER.  THE LIQUIDATED DAMAGES FOR FAILURE TO PAY THE
MINIMUM WAGES UNDER SECS. 6(A) AND 7(A) ARE COMPENSATION, NOT A PENALTY
OR PUNISHMENT BY THE GOVERNMENT.  FN24 CF. HUNTINGTON V. ATTRILL, 146
U.S. 657, 667, 668, 674, 681; COX V. LYKES BROTHERS, 237 N.Y. 376, 143
N.E. 226.  THE RETENTION OF A WORKMAN'S PAY MAY WELL RESULT IN DAMAGES
TOO OBSCURE AND DIFFICULT OF PROOF FOR ESTIMATE OTHER THAN BY
LIQUIDATED DAMAGES.  ATCHISON, T. & S.F. RY. CO. V. NICHOLS, 264 U.S.
348, 351; JAMES-DICKINSON CO. V. HARRY, 273 U.S. 119.  NOR CAN IT BE
SAID THAT THE EXACTION IS VIOLATIVE OF DUE PROCESS.  IT IS NOT A THREAT
OF CRIMINAL PROCEEDINGS OR PROHIBITIVE FINES, SUCH AS HAVE BEEN HELD
BEYOND LEGISLATIVE POWER BY THE AUTHORITIES CITED BY PETITIONER.  EVEN
DOUBLE DAMAGES TREATED AS PENALTIES HAVE BEEN UPHELD AS WITHIN
CONSTITUTIONAL POWER.  FN25  AFFIRMED. 

FN1  "SEC.  7.  (A)  NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED
IN THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE
OR IN THE PRODUCTION OF GOODS FOR COMMERCE - 

(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION. 

(2)  FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND YEAR
FROM SUCH DATE, OR 

(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED
AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT
WHICH HE IS EMPLOYED."  52 STAT. 1063; 29 U.S.C. SEC. 207. 

FN2  "SEC.  16.  ... 

"(B)  ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 6 OR
AFFECTED IN THE AMOUNT OF THEIR UNPAID MINIMUM WAGES, OR THEIR UNPAID
OVERTIME COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL EQUAL
AMOUNT AS LIQUIDATED DAMAGES.  ACTION TO RECOVER SUCH LIABILITY MAY BE
MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE OR MORE
EMPLOYEES FOR AND IN BEHALF OF HIMSELF OR THEMSELVES AND OTHER
EMPLOYEES SIMILIARLY SITUATED, OR SUCH EMPLOYEE OR EMPLOYEES MAY
DESIGNATE AN AGENT OR REPRESENTATIVE TO MAINTAIN SUCH ACTION FOR AND IN
BEHALF OF ALL EMPLOYEES SIMILARLY SITUATED.  THE COURT IN SUCH ACTION
SHALL, IN ADDITION TO ANY JUDGMENT AWARDED TO THE PLAINTIFF OR
PLAINTIFFS, ALLOW A REASONABLE ATTORNEY'S FEE TO BE PAID BY THE
DEFENDANT, AND COSTS OF THE ACTION."  52 STAT. 1069, 29 U.S.C. SEC.
216. 

FN3  "SEC.  3.  AS USED IN THIS ACT - 

     .        .         .         .         . 

(B)  'COMMERCE' MEANS TRADE, COMMERCE, TRANSPORTATION, TRANSMISSION,
OR COMMUNICATION AMONG THE SEVERAL STATES OR FROM ANY STATE TO ANY
PLACE OUTSIDE THEREOF."  52 STAT. 1060, 29 U.S.C. SEC. 203. 

FN4  "IT IS PETITIONER'S CONTENTION THAT THOUGH THE CONSTITUTIONALITY
IS CLEARLY SETTLED AS TO THE QUESTION OF CORRECTING 'SUB-STANDARD LABOR
CONDITIONS,' A CONSTRUCTION OF THE ACT WHICH HAS NO RELATIONSHIP
WHATSOEVER TO 'SUB-STANDARD LABOR CONDITIONS' WOULD NONETHELESS BE
UNCONSTITUTIONAL, FOR THE POTENTIALITY OF SUCH A CONSTRUCTION IS TO
DESTROY FREEDOM OF CONTRACT BETWEEN EMPLOYER AND EMPLOYEE." 

FN5  LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 37. 

FN6  SANTA CRUZ CO. V. LABOR BOARD, 303 U.S. 453, 464. 

FN7  NOTE 1 SUPRA. 

FN8  MAY 24, 1937, 81 CONG. REC. 4983, 75TH CONG., 1ST SESS., SEN.
REP. NO. 884 ON S. 2475, JULY 6, 1937, P. 2. 

FN9  82 CONG. REC. 11, 75TH CONG., 2D SESS. 

FN10  HOUSE REP. 1452, 75TH CONG., 1ST SESS., PP. 14, 15. 

FN11  83 CONG. REC. 9246, 9254. 

FN12  CF. BUMPUS V. CONTINENTAL BAKING CO., 124 F.2D 549, 551;
CARLETON SCREW PRODUCTS CO. V. FLEMING, 126 F.2D 537, 539; TIDEWATER
OPTICAL CO. V. WITTKAMP, 179 VA. 545, 551, 19 S.E.2D 897, 899; MCMILLAN
V. WILSON & CO., 212 MINN. 142, 2 N.W.2D 838, 839; SEE UNITED STATES V.
DARBY, 312 U.S. 100, 125. 

FN13  SEC. 3(M) DEFINED WAGE TO INCLUDE BOARD, LODGING OR OTHER
FACILITY CUSTOMARILY FURNISHED EMPLOYEES.  THE JOINT RESOLUTION OF JUNE
26, 1940, FOR WORK RELIEF AND RELIEF FOR THE FISCAL YEAR 1941, SEC.
3(F) DEALS WITH PIECE WORK IN PUERTO RICO OR THE VIRGIN ISLANDS.  54
STAT. 611, 616. 

FN14  ANY OTHER INTERPRETATION WOULD RENDER ALMOST USELESS THE
EXEMPTIONS FROM THE ACT OF EMPLOYEES IN "EXECUTIVE, ADMINISTRATIVE,
PROFESSIONAL, OR LOCAL RETAILING CAPACITY, OR IN THE CAPACITY OF
OUTSIDE SALESMAN."  SEC. 13(A)(1).  SUCH EMPLOYEES ARE RARELY PAID BY
THE HOUR. 

FN15  THE LEGISLATIVE HISTORY OF THE FAIR LABOR STANDARDS ACT IS
INCONCLUSIVE AS TO THE INTENDED MEANING OF THE WORDS "THE REGULAR RATE
AT WHICH HE IS EMPLOYED."  THE COMMITTEE REPORTS DO NOT DISCUSS THEM. 
THE BILL WHICH CAME OUT OF THE CONFERENCE AND WAS ADOPTED CHANGED
"REGULAR HOURLY RATE" OF PREVIOUS BILLS (S. 2475, INTRODUCED MAY 24,
1937; H.R. 7200, INTRODUCED MAY 24, 1937; AND S. 2475 IN THE SENATE,
APRIL 20, CALENDAR DAY MAY 25, 1938) TO "REGULAR RATE."  CONFERENCE
REPORT, 83 CONG. REC. 9247, 75TH CONG., 3RD SESS.  "HOURLY" MAY HAVE
BEEN OMITTED AS NOT DESCRIPTIVE OF PIECEWORK OR SALARY PAYMENTS. 

FN16  WAGE DIVIDED BY HOURS EQUALS REGULAR RATE.  TIME AND A HALF
REGULAR RATE FOR HOURS EMPLOYED BEYOND STATUTORY MAXIMUM EQUALS
COMPENSATION FOR OVERTIME HOURS. 

FN17  THIS HAS BEEN THE ADMINISTRATOR'S INTERPRETATION OF THE ACT. 
INTERPRETATIVE BULLETIN NO. 4 ISSUED OCTOBER 21, 1938, REVISED
NOVEMBER, 1940.  WHILE THE INTERPRETATIVE BULLETINS ARE NOT ISSUED AS
REGULATIONS UNDER STATUTORY AUTHORITY, THEY DO CARRY PERSUASIVENESS AS
AN EXPRESSION OF THE VIEW OF THOSE EXPERIENCED IN THE ADMINISTRATION OF
THE ACT AND ACTING WITH THE ADVICE OF A STAFF SPECIALIZING IN ITS
INTERPRETATION AND APPLICATION.  CF. UNITED STATES V. AMERICAN TRUCKING
ASSNS., 310 U.S. 534, 549; UNITED STATES V. DARBY, 312 U.S. 100, 118,
N. 2; GRAVES V. ARMSTRONG CREAMERY CO., 154 KAN. 365, 370, 118 P.2D
613, 616.  EVEN NEGATIVE CONSTRUCTION MAY BE SIGNIFICANT.  TRADE COMM'N
V. BUNTE BROS., 312 U.S. 349, 351, 352. 

REGULATIONS ON RECORDS ISSUED PURSUANT TO SEC. 11(A) HAVE SINCE
SEPTEMBER 15, 1941, REFERRED TO INTERPRETATIVE BULLETIN 4 FOR THE
METHOD OF COMPUTATION.  6 FED. REG. 4695, N. 9. 

FN18  126 F.2D 98, 111, AND CASES CITED WHICH SO CONSTRUED THE ACT. 

FN19  "SEC.  13.  ...  (B)  THE PROVISIONS OF SECTION 7 SHALL NOT
APPLY WITH RESPECT TO (1) ANY EMPLOYEE WITH RESPECT TO WHOM THE
INTERSTATE COMMERCE COMMISSION HAS POWER TO ESTABLISH QUALIFICATIONS
AND MAXIMUM HOURS OF SERVICE PURSUANT TO THE PROVISIONS OF SECTION 204
OF THE MOTOR CARRIER ACT, 1935; ...  " 52 STAT. 1068; 29 U.S.C. SEC.
213(B). 

FN20  EX PARTE MC-2, 28 M.C.C. 125. 

FN21  EX PARTE MC-2, 3 M.C.C. 665, 667. 

FN22  MARCH 25, 1939, INTERPRETATIVE BULLETIN, WAGE & HOUR DIVISION
NO. 9; MAY 9, 1939, EX PARTE MC-28, 13 M.C.C. 481, 488; JUNE 15, 1939,
EX PARTE MC-C-139, 16 M.C.C. 497; MAY 27, 1940, UNITED STATES V.
AMERICAN TRUCKING ASSNS., 310 U.S. 534. 

FN23  CF. LABOR BOARD V. ELECTRIC VACUUM CLEANER CO., 315 U.S. 685,
697-698. 

FN24  THE GOVERNMENT HAS COLLECTED THE CASES UNDER THE ACT UPON THE
POINT:  "ONE LINE OF CASES HOLDS THAT THE 'DOUBLE DAMAGES' DO NOT
CONSTITUTE A PENALTY INCURRED UNDER THE LAWS OF THE UNITED STATES
WITHIN THE MEANING OF SECS. 24(9) AND 256 OF THE JUDICIAL CODE (28
U.S.C. SECS. 41(9) AND 371).  ROBERTSON V. ARGUS HOSIERY MILLS, 121
F.2D 285, 286(C.C.A.6TH), CERTIORARI DENIED, 314 U.S. 681; STEWART V.
HICKMAN, 36 F.SUPP.  861(W.D. MO.); KULIGOWSKI V. HART, 43 F.SUPP. 
207, 4 WAGE HOUR REPT. 203(N.D. OHIO); WINGATE V. GENERAL AUTO PARTS
CO., 40 F.SUPP.  364(W.D. MO.); BARRON V. F.H.E. OIL CO., 4 WAGE HOUR
REPT. 551(W.D. TEX.); HART V. GREGORY, 218 N.C. 184, 10 S.E.2D 644;
FORSYTH V. CENTRAL FOUNDRY CO., 240 ALA. 277, 198 SO. 706; GRAVES V.
ARMSTRONG CREAMERY CO., 154 KAN. 365, 118 P.2D 613; EMERSON V. MARY
LINCOLN CANDIES, 173 MISC. 531, 17 N.Y.S.2D 851; AFFIRMED 261 APP. DIV.
879, 26 N.Y.S.2D 489; AFFIRMED, 287 N.Y. 33, 38 N.E.2D 234; ABROE V.
LINDSAY BROS. CO., 300 N.W. 456(S. CT. MINN.); TAPP V. PRICE-BASS CO.,
147 S.W.2D 107(S. CT. TENN.); DUKE V. HELENA-GLENDALE FERRY CO., 159
S.W.2D 74, 5 WAGE HOUR REPT. 206(S. CT. ARK.); DENNIS V. EQUITABLE
EQUIPMENT CO., 7 SO.2D 397(CT. APP. LA.); ADAIR V. TRACO DIVISION, 192
GA. 59, 14 S.E.2D 466.  ...  THE OTHER LINE OF CASES HOLDING SEC. 16(B)
TO BE REMEDIAL RATHER THAN PENAL INVOLVES DETERMINATION OF THE
APPLICABLE STATUTE OF LIMITATIONS.  COLLINS V. HANCOCK, 4 WAGE HOUR
REPT. 522(D. LA. CADDO PARISH); TUCKER V. HITCHCOCK, NO. 370, S.D.
FLA., OCT. 2, 1941; KLOTZ V. IPPOLITO, 40 F.SUPP.  422(S.D. TEXAS)." 

FN25  CF. MISSOURI PACIFIC RY. CO. V. HUMES, 115 U.S. 512;
MINNEAPOLIS & ST. LOUIS RY. CO. V. BECKWITH, 129 U.S. 26; KANSAS CITY
SOUTHERN RY. CO. V. ANDERSON, 233 U.S. 325. 

THE CHIEF JUSTICE CONCURS IN THE RESULT.  MR. JUSTICE ROBERTS
DISSENTS. 
..END :












JONES V. OPELIKA, 316 U.S. 584 


ARGUED (NO. 280) FEBRUARY 5, 1942 AND (NOS. 314 AND 966) APRIL 30,
1942.  - DECIDED JUNE 8, 1942.  - 7 SO.2D 503, AFFIRMED.  - 202 ARK.
614, 151 S.W.2D 1000, AFFIRMED.  - 118 P.2D 97, AFFIRMED. 


1.  A CITY ORDINANCE WHICH REQUIRES THAT LICENSES BE PROCURED AND THAT
TAXES REASONABLE IN AMOUNT BE PAID, FOR THE CONDUCT OF VARIOUS
BUSINESSES WITHIN THE MUNICIPALITY, INCLUDING THE BUSINESS OF SELLING
BOOKS AND PAMPHLETS ON THE STREETS OR FROM HOUSE TO HOUSE, AND WHICH IS
GENERAL AND NON-DISCRIMINATORY IN ITS INCIDENCES, DOES NOT INFRINGE THE
LIBERTIES OF FREE SPEECH, FREE PRESS OR FREE EXERCISE OF RELIGION WHEN
APPLIED TO A MEMBER OF A RELIGIOUS ORGANIZATION WHO IS ENGAGED IN
SELLING THE PRINTED PROPAGANDA OF HIS SECT.  PP. 593, 598. 

2.  ONE WHO SELLS RELIGIOUS LITERATURE ON CITY STREETS, WITHOUT
HAVING COMPLIED WITH PROVISIONS OF AN ORDINANCE VALIDLY REQUIRING THAT
HE FIRST APPLY FOR AND OBTAIN A LICENSE AND PAY A LICENSE TAX, CAN NOT
DEFEND UPON THE GROUND THAT THE ORDINANCE IS RENDERED UNCONSTITUTIONAL
AS TO HIM BY A PROVISION PURPORTING TO EMPOWER THE LICENSING AUTHORITY
TO REVOKE LICENSES WITHOUT NOTICE.  LOVELL V. GRIFFIN, 304 U.S. 444,
DISTINGUISHED.  P. 599. 

JONES V. OPELIKA. 

NO. 280.  CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

BOWDEN ET AL. V. FORT SMITH. 

NO. 314.  CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

JOBIN V. ARIZONA. 

NO. 966.  APPEAL FROM THE SUPREME COURT OF ARIZONA. 

THE FIRST TWO OF THESE CASES WERE BROUGHT HERE BY WRITS OF CERTIORARI,
314 U.S. 593, 315 U.S. 793.  THE THIRD CAME UP BY APPEAL.  IN EACH CASE
THE REVIEW WAS OF A JUDGMENT AFFIRMING A CONVICTION AND FINE FOR
VIOLATION OF A CITY ORDINANCE DECLARING IT UNLAWFUL TO SELL BOOKS OR
PAMPHLETS WITHIN THE MUNICIPAL LIMITS WITHOUT HAVING OBTAINED A LICENSE
AND PAID A LICENSE TAX. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

BY WRIT OF CERTIORARI IN NOS. 280 AND 314 AND BY APPEAL IN NO. 966 WE
HAVE BEFORE US THE QUESTION OF THE CONSTITUTIONALITY OF VARIOUS CITY
ORDINANCES IMPOSING THE LICENSE TAXES UPON THE SALE OF PRINTED MATTER
FOR NONPAYMENT OF WHICH THE APPELLANT, JOBIN, AND THE PETITIONERS,
JONES, BOWDEN AND SANDERS, ALL MEMBERS OF THE ORGANIZATION KNOWN AS
JEHOVAH'S WITNESSES, WERE CONVICTED. 

                              NO. 280 

THE CITY OF OPELIKA, ALABAMA, FILED A COMPLAINT IN THE CIRCUIT COURT
OF LEE COUNTY, CHARGING PETITIONER JONES WITH VIOLATION OF ITS
LICENSING ORDINANCE BY SELLING BOOKS WITHOUT A LICENSE, BY OPERATING AS
A BOOK AGENT WITHOUT A LICENSE, AND BY OPERATING AS A TRANSIENT AGENT,
DEALER OR DISTRIBUTOR OF BOOKS WITHOUT A LICENSE.  FN1  THE LICENSE FEE
FOR BOOK AGENTS (BIBLES EXCEPTED) WAS $10 PER ANNUM, THAT FOR TRANSIENT
AGENTS, DEALERS OR DISTRIBUTORS OF BOOKS $5.  FN2  UNDER SEC. 1 OF THE
ORDINANCE, ALL LICENSES WERE SUBJECT TO REVOCATION IN THE DISCRETION OF
THE CITY COMMISSION, WITH OR WITHOUT NOTICE.  FN3  THERE IS A CLAUSE
PROVIDING FOR SEVERANCE IN CASE OF INVALIDITY OF ANY SECTION, CONDITION
OR PROVISION.  FN4  PETITIONER DEMURRED, ALLEGING THAT THE ORDINANCE,
BECAUSE OF UNLIMITED DISCRETION IN REVOCATION AND REQUIREMENT OF A
LICENSE, WAS AN UNCONSTITUTIONAL ENCROACHMENT UPON FREEDOM OF THE
PRESS.  DURING THE TRIAL, WITHOUT A JURY, THESE CONTENTIONS, WITH THE
ADDED CLAIM OF INTERFERENCE WITH FREEDOM OF RELIGION, WERE RENEWED AT
THE END OF THE CITY'S CASE, AND AT THE CLOSE OF ALL THE EVIDENCE.  THE
COURT OVERRULED THESE MOTIONS, AND FOUND PETITIONER GUILTY ON EVIDENCE
THAT, WITHOUT A LICENSE, HE HAD BEEN DISPLAYING PAMPHLETS IN HIS
UPRAISED HAND AND WALKING ON A CITY STREET SELLING THEM TWO FOR FIVE
CENTS.  FN5  THE COURT EXCLUDED, AS IRRELEVANT, TESTIMONY DESIGNED TO
SHOW THAT THE PETITIONER WAS AN ORDAINED MINISTER, AND THAT HIS
ACTIVITIES WERE IN FURTHERANCE OF HIS BELIEFS AND THE TEACHINGS OF
JEHOVAH'S WITNESSES.  ONCE AGAIN, BY AN UNSUCCESSFUL MOTION FOR NEW
TRIAL, THE CONSTITUTIONAL ISSUES WERE RAISED.  THE COURT OF APPEALS OF
ALABAMA REVERSED THE CONVICTION ON APPEAL, BECAUSE IT THOUGHT THE
UNLIMITED DISCRETION OF THE CITY COMMISSION TO REVOKE THE LICENSES
INVALIDATED THE ORDINANCE.  WITHOUT DISCUSSION OF THIS POINT, THE
SUPREME COURT OF ALABAMA DECIDED THAT NONDISCRIMINATORY LICENSING OF
THE SALE OF BOOKS OR TRACTS WAS CONSTITUTIONAL, REVERSED THE COURT OF
APPEALS, AND STAYED EXECUTION PENDING CERTIORARI.  241 ALA. 279, 3
SO.2D 76.  THIS COURT, HAVING GRANTED CERTIORARI, 314 U.S. 593,
DISMISSED THE WRIT FOR LACK OF A FINAL JUDGMENT.  315 U.S. 782.  THE
COURT OF APPEALS THEREUPON ENTERED A JUDGMENT SUSTAINING THE
CONVICTION, WHICH WAS AFFIRMED BY THE ALABAMA SUPREME COURT AND IS
FINAL.  242 ALA. 549, 7 SO.2D 503.  WE THEREFORE GRANT THE PETITION FOR
REHEARING OF THE DISMISSAL OF THE WRIT, AND PROCEED WITH THE
CONSIDERATION OF THE CASE. 

                               NO. 314 

PETITIONERS BOWDEN AND SANDERS WERE ARRESTED BY POLICE OFFICERS OF
FORT SMITH, ARKANSAS, BROUGHT BEFORE THE MUNICIPAL COURT ON CHARGES OF
VIOLATION OF CITY ORDINANCE NO. 1172, AND CONVICTED.  THEY APPEALED TO
THE SEBASTIAN CIRCUIT COURT, AND THERE MOVED TO DISMISS ON THE GROUND
THAT THE ORDINANCE WAS AN UNCONSTITUTIONAL RESTRICTION OF FREEDOM OF
RELIGION AND OF THE PRESS, CONTRARY TO THE FOURTEENTH AMENDMENT.  THE
CIRCUIT JUDGE HEARD THE CASE DE NOVO WITHOUT A JURY, ON STIPULATED
FACTS.  THE ORDINANCE REQUIRED A LICENSE "FOR EACH PERSON PEDDLING DRY
GOODS, NOTIONS, WEARING APPAREL, HOUSEHOLD GOODS OR OTHER ARTICLES NOT
HEREIN OR OTHERWISE SPECIFICALLY MENTIONED $25 PER MONTH, $10 PER WEEK,
$2.50 PER DAY."  FN6  THE PETITIONERS, IN THE EXERCISE OF THEIR BELIEFS
CONCERNING THEIR DUTY TO PREACH THE GOSPEL, ADMITTED GOING FROM HOUSE
TO HOUSE WITHOUT A LICENSE, PLAYING PHONOGRAPHIC TRANSCRIPTIONS OF
BIBLE LECTURES, AND DISTRIBUTING BOOKS SETTING FORTH THEIR VIEWS TO THE
RESIDENTS IN RETURN FOR A CONTRIBUTION OF TWENTY-FIVE CENTS PER BOOK. 
WHEN PERSONS DESIRING BOOKS WERE UNABLE TO CONTRIBUTE, THE BOOKS WERE
IN SOME INSTANCES GIVEN AWAY FREE.  THE CIRCUIT JUDGE CONCLUDED AS A
MATTER OF LAW THAT THE BOOKS WERE "OTHER ARTICLES" AND THAT PETITIONERS
WERE GUILTY OF PEDDLING WITHOUT A LICENSE.  A MOTION FOR NEW TRIAL WAS
DENIED.  ON APPEAL THE SUPREME COURT OF ARKANSAS HELD THE ORDINANCE
CONSTITUTIONAL ON THE AUTHORITY OF ITS PREVIOUS DECISION IN COOK V.
HARRISON, 180 ARK. 546, 21 S.W.2D 966, AND AFFIRMED THE CONVICTIONS. 
202 ARK. 614, 151 S.W.2D 1000.  THIS COURT DENIED CERTIORARI, 314 U.S.
651, BUT LATER, BECAUSE OF THE SIMILARITY OF THE ISSUES PRESENTED TO
THOSE IN THE JOBIN CASE, NO. 966, VACATED THE DENIAL OF CERTIORARI AND
ISSUED A WRIT.  315 U.S. 793. 

                               NO. 966 

THE CITY OF CASA GRANDE, ARIZONA, BY ORDINANCE MADE IT A MISDEMEANOR
FOR ANY PERSON TO CARRY ON ANY OCCUPATION OR BUSINESS SPECIFIED WITHOUT
FIRST PROCURING A LICENSE.  FN7  TRANSIENT MERCHANTS, PEDDLERS AND
STREET VENDORS WERE LISTED AS SUBJECT TO A QUARTERLY LICENSE FEE OF
$25.00, PAYABLE IN ADVANCE.  FN8  IN THE SUPERIOR COURT OF PINAL
COUNTY, JOBIN WAS TRIED AND CONVICTED BY A JURY ON A COMPLAINT CHARGING
THAT, NOT HAVING "A PERMANENT PLACE OF BUSINESS IN THE CITY," HE THERE
CARRIED ON THE "BUSINESS OF PEDDLING, VENDING, SELLING, OFFERING FOR
SALE AND SOLICITING THE SALE OF GOODS, WARES AND MERCHANDISE, TO WIT:
PAMPHLETS, BOOKS AND PUBLICATIONS WITHOUT FIRST HAVING PROCURED A
LICENSE," CONTRARY TO THE ORDINANCE.  THE EVIDENCE FOR THE STATE SHOWED
THAT, WITHOUT A LICENSE, THE APPELLANT CALLED AT TWO HOMES AND A
LAUNDRY, AND OFFERED FOR SALE AND SOLD BOOKS AND PAMPHLETS OF A
RELIGIOUS NATURE.  AT ONE HOME, ACCOMPANIED BY HIS WIFE, HE WAS REFUSED
ADMISSION, BUT WAS ALLOWED BY THE GIRL WHO CAME TO THE DOOR TO PLAY A
PORTABLE PHONOGRAPH ON THE PORCH.  THE GIRL PURCHASED ONE OF HIS STOCK
OF BOOKS, "RELIGION," FOR A QUARTER, AND RECEIVED A PAMPHLET FREE. 
DURING THE CONVERSATION, HE STATED THAT HE WAS AN ORDAINED MINISTER
PREACHING THE GOSPEL, AND QUOTED PASSAGES FROM THE BIBLE.  AT THE
SECOND HOME, THE LADY OF THE HOUSE ALLOWED HIM AND HIS WIFE TO ENTER
AND PLAY THE PHONOGRAPH, BUT SHE REFUSED TO BUY EITHER BOOKS OR
PAMPHLETS.  WHEN DEPARTING THE APPELLANT LEFT SOME LITERATURE ON THE
TABLE, ALTHOUGH INFORMED BY THE LADY THAT IT WOULD NOT BE READ AND HAD
BETTER BE GIVEN TO SOMEONE ELSE.  AT THE LAUNDRY, THE APPELLANT
INTRODUCED HIMSELF AS ONE OF THE JEHOVAH'S WITNESSES AND DISCUSSED WITH
THE PROPRIETOR THEIR WORK AND RELIGION GENERALLY.  THE PROPRIETOR
BOUGHT THE BOOK "RELIGION" FOR A QUARTER, BUT DECLINED TO BUY OTHERS AT
THE SAME PRICE.  HE WAS GIVEN A PAMPHLET FREE.  WHEN ARRESTED, THE
APPELLANT STATED THAT HE WAS "SELLING RELIGIOUS BOOKS AND PREACHING THE
GOSPEL OF THE KINGDOM," AND THAT BECAUSE OF HIS RELIGIOUS BELIEFS HE
WOULD NOT TAKE OUT A LICENSE.  A MOTION AT THE CLOSE OF THE EVIDENCE
FOR A DIRECTED VERDICT OF ACQUITTAL, ON THE GROUND THAT THE ORDINANCE
VIOLATED THE FOURTEENTH AMENDMENT, WAS DENIED.  THE JURY WAS INSTRUCTED
TO ACQUIT UNLESS IT FOUND THE DEFENDANT WAS SELLING BOOKS OR
PAMPHLETS.  IT RETURNED A VERDICT OF GUILTY.  ON APPEAL, THE SUPREME
COURT OF ARIZONA HELD THAT THE ORDINANCE, AN "ORDINARY OCCUPATIONAL
LICENSE TAX ORDINANCE," DID NOT DENY FREEDOM OF RELIGION AND OF THE
PRESS, AND AFFIRMED THE CONVICTION.  118 P.2D 97.  AN APPEAL TO THIS
COURT WAS ALLOWED UNDER SEC. 237 OF THE JUDICIAL CODE, 28 U.S.C. SEC.
344. 

THE OPELIKA ORDINANCE REQUIRED BOOK AGENTS TO PAY $10.00 PER ANNUM,
TRANSIENT DISTRIBUTORS OF BOOKS (ANNUAL ONLY) $5.00.  THE LICENSE FEE
IN CASA GRANDE WAS $25 PER QUARTER, THAT IN FORT SMITH RANGED FROM
$2.50 PER DAY TO $25 PER MONTH.  ALL THE FEES WERE SMALL, YET
SUBSTANTIAL.  BUT THE APPELLANT AND THE PETITIONERS, SO FAR AS THE
RECORDS DISCLOSE, ADVANCED NO CLAIM AND PRESENTED NO PROOF IN THE
COURTS BELOW THAT THESE FEES WERE INVALID BECAUSE SO HIGH AS TO MAKE
THE COST OF COMPLIANCE A DETERRENT TO THE FURTHER DISTRIBUTION OF THEIR
LITERATURE IN THOSE CITIES.  ALTHOUGH PETITIONERS IN NO. 314 CONTENDED
THAT THEIR ENTERPRISE WAS OPERATED AT A LOSS, THERE WAS NO SUGGESTION
THAT THEY COULD NOT OBTAIN FROM THE SAME SOURCES WHICH NOW SUPPLY THE
FUNDS TO MEET WHATEVER DEFICIT THERE MAY BE, SUMS SUFFICIENT TO DEFRAY
LICENSE FEES ALSO.  THE AMOUNT OF THE FEES WAS NOT CONSIDERED IN THE
OPINIONS BELOW, EXCEPT FOR A BARE STATEMENT BY THE ALABAMA COURT THAT
THE EXACTION WAS "REASONABLE," AND NEITHER THE BRIEFS NOR THE
ASSIGNMENTS OF ERROR IN THIS COURT HAVE DIRECTED THEIR ATTACK
SPECIFICALLY TO THAT ISSUE.  CONSEQUENTLY THERE IS NOT BEFORE US THE
QUESTION OF THE POWER TO LAY FEES, OBJECTIONABLE IN THEIR EFFECT
BECAUSE OF THEIR SIZE, UPON THE CONSTITUTIONALLY PROTECTED RIGHTS OF
FREE SPEECH, PRESS OR THE EXERCISE OF RELIGION.  IF THE SIZE OF THE
FEES WERE TO BE CONSIDERED, TO REACH A CONCLUSION ONE WOULD DESIRE TO
KNOW THE ESTIMATED VOLUME, THE MARGIN OF PROFIT, THE SOLICITOR'S
COMMISSION, THE EXPENSE OF POLICING AND OTHER PERTINENT FACTS OF INCOME
AND EXPENSE.  IN THE CIRCUMSTANCES, WE VENTURE NO OPINION CONCERNING
THE VALIDITY OF LICENSE TAXES IF IT WERE PROVED, OR AT LEAST DISTINCTLY
CLAIMED, THAT THE BURDEN OF THE TAX WAS A SUBSTANTIAL CLOG UPON
ACTIVITIES OF THE SORT HERE INVOLVED.  FN9  THE SOLE CONSTITUTIONAL
QUESTION CONSIDERED IS WHETHER A NONDISCRIMINATORY LICENSE FEE,
PRESUMABLY APPROPRIATE IN AMOUNT, MAY BE IMPOSED UPON THESE
ACTIVITIES. 

WE TURN TO THE CONSTITUTIONAL PROBLEM SQUARELY PRESENTED BY THESE
ORDINANCES.  THERE ARE ETHICAL PRINCIPLES OF GREATER VALUE TO MANKIND
THAN THE GUARANTEES OF THE CONSTITUTION, PERSONAL LIBERTIES WHICH ARE
BEYOND THE POWER OF GOVERNMENT TO IMPAIR.  THESE PRINCIPLES AND
LIBERTIES BELONG TO THE MENTAL AND SPIRITUAL REALM, WHERE THE JUDGMENTS
AND DECREES OF MUNDANE COURTS ARE INEFFECTIVE TO DIRECT THE COURSE OF
MAN.  THE RIGHTS OF WHICH OUR CONSTITUTION SPEAKS HAVE A MORE EARTHY
QUALITY.  THEY ARE NOT ABSOLUTES  FN10  TO BE EXERCISED INDEPENDENTLY
OF OTHER CHERISHED PRIVILEGES, PROTECTED BY THE SAME ORGANIC
INSTRUMENT.  CONFLICTS IN THE EXERCISE OF RIGHTS ARISE, AND THE
CONFLICTING FORCES SEEK ADJUSTMENTS IN THE COURTS, AS DO THESE PARTIES,
CLAIMING ON THE ONE SIDE THE FREEDOM OF RELIGION, SPEECH AND THE PRESS,
GUARANTEED BY THE FOURTEENTH AMENDMENT, FN11  AND ON THE OTHER THE
RIGHT TO EMPLOY THE SOVEREIGN POWER EXPLICITLY RESERVED TO THE STATE BY
THE TENTH AMENDMENT TO ENSURE ORDERLY LIVING, WITHOUT WHICH
CONSTITUTIONAL GUARANTEES OF CIVIL LIBERTIES WOULD BE A MOCKERY.  FN12
COURTS, NO MORE THAN CONSTITUTIONS, CAN INTRUDE INTO THE CONSCIENCES OF
MEN OR COMPEL THEM TO BELIEVE CONTRARY TO THEIR FAITH OR THINK CONTRARY
TO THEIR CONVICTIONS; BUT COURTS ARE COMPETENT TO ADJUDGE THE ACTS MEN
DO UNDER COLOR OF A CONSTITUTIONAL RIGHT, SUCH AS THAT OF FREEDOM OF
SPEECH OR OF THE PRESS OR THE FREE EXERCISE OF RELIGION, AND TO
DETERMINE WHETHER THE CLAIMED RIGHT IS LIMITED BY OTHER RECOGNIZED
POWERS, EQUALLY PRECIOUS TO MANKIND.  FN13  SO THE MIND AND SPIRIT OF
MAN REMAIN FOREVER FREE, WHILE HIS ACTIONS REST SUBJECT TO NECESSARY
ACCOMMODATION TO THE COMPETING NEEDS OF HIS FELLOWS. 

IF ALL EXPRESSION OF RELIGION OR OPINION, HOWEVER, WERE SUBJECT TO
THE DISCRETION OF AUTHORITY, OUR UNFETTERED DYNAMIC THOUGHTS OR MORAL
IMPULSES MIGHT BE MADE ONLY COLORLESS AND STERILE IDEAS.  TO GIVE THEM
LIFE AND FORCE, THE CONSTITUTION PROTECTS THEIR USE.  NO DIFFERENCE OF
VIEW AS TO THE IMPORTANCE OF THE FREEDOMS OF PRESS OR RELIGION EXISTS. 
THEY ARE "FUNDAMENTAL PERSONAL RIGHTS AND LIBERTIES."  SCHNEIDER V.
STATE, 308 U.S. 147, 161.  TO PROSCRIBE THE DISSEMINATION OF DOCTRINES
OR ARGUMENTS WHICH DO NOT TRANSGRESS MILITARY OR MORAL LIMITS IS TO
DESTROY THE PRINCIPAL BASES OF DEMOCRACY,  - KNOWLEDGE AND DISCUSSION. 
ONE MAN, WITH VIEWS CONTRARY TO THE REST OF HIS COMPATRIOTS, IS
ENTITLED TO THE PRIVILEGE OF EXPRESSING HIS IDEAS BY SPEECH OR
BROADSIDE TO ANYONE WILLING TO LISTEN OR TO READ.  TOO MANY SETTLED
BELIEFS HAVE IN TIME BEEN REJECTED TO JUSTIFY THIS GENERATION IN
REFUSING A HEARING TO ITS OWN DISSENTIENTS.  BUT THAT HEARING MAY BE
LIMITED BY ACTION OF THE PROPER LEGISLATIVE BODY TO TIMES, PLACES AND
METHODS FOR THE ENLIGHTENMENT OF THE COMMUNITY WHICH, IN VIEW OF
EXISTING SOCIAL AND ECONOMIC CONDITIONS, ARE NOT AT ODDS WITH THE
PRESERVATION OF PEACE AND GOOD ORDER.    THIS MEANS THAT THE PROPONENTS
OF IDEAS CANNOT DETERMINE ENTIRELY FOR THEMSELVES THE TIME AND PLACE
AND MANNER FOR THE DIFFUSION OF KNOWLEDGE OR FOR THEIR EVANGELISM, ANY
MORE THAN THE CIVIL AUTHORITIES MAY HAMPER OR SUPPRESS THE PUBLIC
DISSEMINATION OF FACTS AND PRINCIPLES BY THE PEOPLE.  FN14  THE
ORDINARY REQUIREMENTS OF CIVILIZED LIFE COMPEL THIS ADJUSTMENT OF
INTERESTS.  THE TASK OF RECONCILEMENT IS MADE HARDER BY THE TENDENCY TO
ACCEPT AS DOMINANT ANY CONTENTION SUPPORTED BY A CLAIM OF INTERFERENCE
WITH THE PRACTICE OF RELIGION OR THE SPREAD OF IDEAS.  BELIEVING, AS
THIS NATION HAS FROM THE FIRST, THAT THE FREEDOMS OF WORSHIP AND
EXPRESSION ARE CLOSELY AKIN TO THE ILLIMITABLE PRIVILEGES OF THOUGHT
ITSELF, ANY LEGISLATION AFFECTING THOSE FREEDOMS IS SCRUTINIZED TO SEE
THAT THE INTERFERENCES ALLOWED ARE ONLY THOSE APPROPRIATE TO THE
MAINTENANCE OF A CIVILIZED SOCIETY.  THE DETERMINATION OF WHAT
LIMITATIONS MAY BE PERMITTED UNDER SUCH AN ABSTRACT TEST RESTS WITH THE
LEGISLATIVE BODIES, THE COURTS, THE EXECUTIVE, AND THE PEOPLE
THEMSELVES, GUIDED BY THE EXPERIENCE OF THE PAST, THE NEEDS OF REVENUE
FOR LAW ENFORCEMENT, THE REQUIREMENTS AND CAPACITIES OF POLICE
PROTECTION, THE DANGERS OF DISORDER, AND OTHER PERTINENT FACTORS. 

UPON THE COURTS FALLS THE DUTY OF DETERMINING THE VALIDITY OF SUCH
ENACTMENTS AS MAY BE CHALLENGED AS UNCONSTITUTIONAL BY LITIGANTS.  FN15
IN DEALING WITH THESE DELICATE ADJUSTMENTS, THIS COURT DENIES ANY
PLACE TO ADMINISTRATIVE CENSORSHIP OF IDEAS OR CAPRICIOUS APPROVAL OF
DISTRIBUTORS.  IN LOVELL V. GRIFFIN, 303 U.S. 444, THE REQUIREMENT OF
PERMISSION FROM THE CITY MANAGER INVALIDATED THE ORDINANCE, PP. 447 AND
451; IN SCHNEIDER V. STATE, THAT OF A POLICE OFFICER, PP. 157 AND 163. 
IN THE CANTWELL CASE, THE SECRETARY OF THE PUBLIC WELFARE COUNCIL WAS
TO DETERMINE WHETHER THE OBJECT OF CHARITABLE SOLICITATION WAS WORTHY,
P. 302.  WE HELD THE REQUIREMENT BAD.  FN16  ORDINANCES ABSOLUTELY
PROHIBITING THE EXERCISE OF THE RIGHT TO DISSEMINATE INFORMATION ARE, A
FORTIORI, INVALID.  FN17 

THE DIFFERENCES BETWEEN CENSORSHIP AND COMPLETE PROHIBITION, EITHER
OF SUBJECT MATTER OR THE INDIVIDUALS PARTICIPATING, UPON THE ONE HAND,
AND REGULATION OF THE CONDUCT OF INDIVIDUALS IN THE TIME, MANNER AND
PLACE OF THEIR ACTIVITIES UPON THE OTHER, ARE DECISIVE.  "ONE WHO IS A
MARTYR TO A PRINCIPLE  ...  DOES NOT PROVE BY HIS MARTYRDOM THAT HE HAS
KEPT WITHIN THE LAW," SAID MR. JUSTICE CARDOZO, CONCURRING IN HAMILTON
V. REGENTS, 293 U.S. 245, 268, WHICH HELD THAT CONSCIENTIOUS OBJECTION
TO MILITARY TRAINING WOULD NOT EXCUSE A STUDENT, DURING HIS ENROLLMENT,
FROM ATTENDING REQUIRED COURSES IN THAT SCIENCE.  FN18  THERE IS TO BE
NOTED, TOO, A DISTINCTION BETWEEN NONDISCRIMINATORY REGULATION OF
OPERATIONS WHICH ARE INCIDENTAL TO THE EXERCISE OF RELIGION OR THE
FREEDOM OF SPEECH OR THE PRESS AND THOSE WHICH ARE IMPOSED UPON THE
RELIGIOUS RITE ITSELF OR THE UNMIXED DISSEMINATION OF INFORMATION. 
CASUAL REFLECTION VERIFIES THE SUGGESTION THAT BOTH TEACHERS AND
PREACHERS NEED TO RECEIVE SUPPORT FOR THEMSELVES AS WELL AS ALMS AND
BENEFACTIONS FOR CHARITY AND THE SPREAD OF KNOWLEDGE.  BUT WHEN, AS IN
THESE CASES, THE PRACTITIONERS OF THESE NOBLE CALLINGS CHOOSE TO
UTILIZE THE VENDING OF THEIR RELIGIOUS BOOKS AND TRACTS AS A SOURCE OF
FUNDS, THE FINANCIAL ASPECTS OF THEIR TRANSACTIONS NEED NOT BE WHOLLY
DISREGARDED.  TO SUBJECT ANY RELIGIOUS OR DIDACTIC GROUP TO A
REASONABLE FEE FOR THEIR MONEY-MAKING ACTIVITIES DOES NOT REQUIRE A
FINDING THAT THE LICENSED ACTS ARE PURELY COMMERCIAL.  IT IS ENOUGH
THAT MONEY IS EARNED BY THE SALE OF ARTICLES.  A BOOK AGENT CANNOT
ESCAPE A LICENSE REQUIREMENT BY A PLEA THAT IT IS A TAX ON KNOWLEDGE. 
IT WOULD HARDLY BE CONTENDED THAT THE PUBLICATION OF NEWSPAPERS IS NOT
SUBJECT TO THE USUAL GOVERNMENTAL FISCAL EXACTIONS, GIRAGI V. MOORE,
301 U.S. 670; 48 ARIZ. 33, 58 P.2D 1249; 49 ARIZ. 74, 64 P.2D 819, OR
THE OBLIGATIONS PLACED BY STATUTES ON OTHER BUSINESS.  ASSOCIATED PRESS
V. LABOR BOARD, 301 U.S. 103, 130.  THE CONSTITUTION DRAWS NO LINE
BETWEEN A PAYMENT FROM GROSS RECEIPTS OR A NET INCOME TAX AND A
SUITABLY CALCULATED OCCUPATIONAL LICENSE.  COMMERCIAL ADVERTISING
CANNOT ESCAPE CONTROL BY THE SIMPLE EXPEDIENT OF PRINTING MATTER OF
PUBLIC INTEREST ON THE SAME SHEET OR HANDBILL.  VALENTINE V.
CHRESTENSEN, ANTE, P. 52.  NOR DOES THE FACT THAT TO THE PARTICIPANTS A
FORMATION IN THE STREETS IS AN "INFORMATION MARCH," AND "ONE OF THEIR
WAYS OF WORSHIP," SUFFICE TO EXEMPT SUCH A PROCESSION FROM A CITY
ORDINANCE WHICH, NARROWLY CONSTRUED, REQUIRED A LICENSE FOR SUCH A
PARADE.  FN19 

WHEN PROPONENTS OF RELIGIOUS OR SOCIAL THEORIES USE THE ORDINARY
COMMERCIAL METHODS OF SALES OF ARTICLES TO RAISE PROPAGANDA FUNDS, IT
IS A NATURAL AND PROPER EXERCISE OF THE POWER OF THE STATE TO CHARGE
REASONABLE FEES FOR THE PRIVILEGE OF CANVASSING.  CAREFUL AS WE MAY AND
SHOULD BE TO PROTECT THE FREEDOMS SAFEGUARDED BY THE BILL OF RIGHTS, IT
IS DIFFICULT TO SEE IN SUCH ENACTMENTS A SHADOW OF PROHIBITION OF THE
EXERCISE OF RELIGION OR OF ABRIDGEMENT OF THE FREEDOM OF SPEECH OR THE
PRESS.  IT IS PROHIBITION AND UNJUSTIFIABLE ABRIDGEMENT WHICH ARE
INTERDICTED, NOT TAXATION.  NOR DO WE BELIEVE IT CAN BE FAIRLY SAID
THAT BECAUSE SUCH PROPER CHARGES MAY BE EXPANDED INTO UNJUSTIFIABLE
ABRIDGEMENTS THEY ARE THEREFORE INVALID ON THEIR FACE.  THE FREEDOMS
CLAIMED BY THOSE SEEKING RELIEF HERE ARE GUARANTEED AGAINST ABRIDGEMENT
BY THE FOURTEENTH AMENDMENT.  ITS COMMANDS PROTECT THEIR RIGHTS.  THE
LEGISLATIVE POWER OF MUNICIPALITIES MUST YIELD WHEN ABRIDGEMENT IS
SHOWN.  COMPARE GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, WITH
GIRAGI V. MOORE, 301 U.S. 670.  IF WE WERE TO ASSUME, AS IS HERE
ARGUED, THAT THE LICENSED ACTIVITIES INVOLVE RELIGIOUS RITES, A
DIFFERENT QUESTION WOULD BE PRESENTED.  THESE ARE NOT TAXES ON FREE
WILL OFFERINGS.  BUT IT IS BECAUSE WE VIEW THESE SALES AS PARTAKING
MORE OF COMMERCIAL THAN RELIGIOUS OR EDUCATIONAL TRANSACTIONS THAT WE
FIND THE ORDINANCES, AS HERE PRESENTED, VALID.  A TAX ON RELIGION OR A
TAX ON INTERSTATE COMMERCE MAY ALIKE BE FORBIDDEN BY THE CONSTITUTION. 
IT DOES NOT FOLLOW THAT LICENSES FOR SELLING BIBLES OR FOR MANUFACTURE
OF ARTICLES OF GENERAL USE, MEASURED BY EXTRASTATE SALES, MUST FALL. 
IT MAY WELL BE THAT THE WISDOM OF AMERICAN COMMUNITIES WILL PERSUADE
THEM TO PERMIT THE POOR AND WEAK TO DRAW SUPPORT FROM THE PETTY SALES
OF RELIGIOUS BOOKS WITHOUT CONTRIBUTING ANYTHING FOR THE PRIVILEGE OF
USING THE STREETS AND CONVENIENCES OF THE MUNICIPALITY.  SUCH AN
EXEMPTION, HOWEVER, WOULD BE A VOLUNTARY, NOT A CONSTITUTIONALLY
ENFORCED, CONTRIBUTION. 

IN THE ORDINANCES OF CASA GRANDE AND FORT SMITH, WE HAVE NO
DISCRETIONARY POWER IN THE PUBLIC AUTHORITIES TO REFUSE A LICENSE TO
ANY ONE DESIROUS OF SELLING RELIGIOUS LITERATURE.  NO CENSORSHIP OF THE
MATERIAL WHICH ENTERS INTO THE BOOKS OR PAPERS IS AUTHORIZED.  NO
RELIGIOUS SYMBOLISM IS INVOLVED, SUCH AS WAS URGED AGAINST THE FLAG
SALUTE IN MINERSVILLE SCHOOL DISTRICT V. GOBITIS, 310 U.S. 586.  FOR US
THERE IS NO OCCASION TO APPLY HERE THE PRINCIPLES TAUGHT BY THAT
OPINION.  NOTHING MORE IS ASKED FROM ONE GROUP THAN FROM ANOTHER WHICH
USES SIMILAR METHODS OF PROPAGATION.  WE SEE NOTHING IN THE COLLECTION
OF A NONDISCRIMINATORY LICENSE FEE, UNCONTESTED IN AMOUNT, FROM THOSE
SELLING BOOKS OR PAPERS, WHICH ABRIDGES THE FREEDOMS OF WORSHIP, SPEECH
OR PRESS.  CF. GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 250.  AS
TO THE CLAIM THAT EVEN SMALL LICENSE CHARGES, IF VALID, WILL IMPOSE
UPON THE ITINERANT COLPORTEUR A CRUSHING AGGREGATE, IT IS PLAIN THAT IF
EACH SINGLE FEE IS, AS WE ASSUME, COMMENSURATE WITH THE ACTIVITIES
LICENSED, THEN THOUGH THE ACCUMULATION OF FEES FROM CITY TO CITY MAY IN
TIME BULK LARGE, HE WILL HAVE ENJOYED A CORRELATIVELY ENLARGED FIELD OF
DISTRIBUTION.  CF. COVERDALE V. PIPE LINE CO., 303 U.S. 604, 612-613. 
THE FIRST AMENDMENT DOES NOT REQUIRE A SUBSIDY IN THE FORM OF FISCAL
EXEMPTION.  GIRAGI V. MOORE, SUPRA.  ACCORDINGLY, THE CHALLENGE TO THE
FORT SMITH AND CASA GRANDE ORDINANCES FAILS. 

THERE IS AN ADDITIONAL CONTENTION BY PETITIONER AS TO THE OPELIKA
ORDINANCE.  IT IS URGED THAT, SINCE THE LICENSES WERE REVOCABLE,
ARBITRARILY, BY THE LOCAL AUTHORITIES, NOTE 3, SUPRA, THERE CAN BE NO
TRUE FREEDOM FOR PETITIONERS IN THE DISSEMINATION OF INFORMATION,
BECAUSE OF THE CENSORSHIP UPON THEIR ACTIONS AFTER THE ISSUANCE OF THE
LICENSE.  BUT THERE HAS BEEN NEITHER APPLICATION FOR, NOR REVOCATION
OF, A LICENSE.  THE COMPLAINT WAS BOTTOMED ON SALES WITHOUT A LICENSE. 
IT WAS THAT CHARGE AGAINST WHICH PETITIONER CLAIMED THE PROTECTION OF
THE CONSTITUTION.  THIS ISSUE HE HAD STANDING TO RAISE.  SMITH V.
CAHOON, 283 U.S. 553, 562.  FROM WHAT HAS BEEN SAID PREVIOUSLY, IT
FOLLOWS THAT THE OBJECTION TO THE UNCONSTITUTIONALITY OF REQUIRING A
LICENSE FAILS.  THERE IS NO OCCASION, AT THIS TIME, TO PASS ON THE
VALIDITY OF THE REVOCATION SECTION, AS IT DOES NOT AFFECT HIS PRESENT
DEFENSE.  HIGHLAND FARMS DAIRY V. AGNEW, 300 U.S. 608, 616; LEHON V.
CITY OF ATLANTA, 242 U.S. 53, 56. 

IN LOVELL V. GRIFFIN, 303 U.S. 444, WE HELD INVALID A STATUTE WHICH
PLACED THE GRANT OF A LICENSE WITHIN THE DISCRETION OF THE LICENSING
AUTHORITY.  BY THIS DISCRETION, THE RIGHT TO OBTAIN A LICENSE WAS MADE
AN EMPTY RIGHT.  THEREFORE THE FORMALITY OF GOING THROUGH AN
APPLICATION WAS NATURALLY NOT DEEMED A PREREQUISITE TO INSISTENCE ON A
CONSTITUTIONAL RIGHT.  HERE WE HAVE A VERY DIFFERENT SITUATION.  A
LICENSE IS REQUIRED THAT MAY PROPERLY BE REQUIRED.  THE FACT THAT SUCH
A LICENSE, IF IT WERE GRANTED, MAY SUBSEQUENTLY BE REVOKED DOES NOT
NECESSARILY DESTROY THE LICENSING ORDINANCE.  THE HAZARD OF SUCH
REVOCATION IS MUCH TOO CONTINGENT FOR US NOW TO DECLARE THE LICENSING
PROVISIONS TO BE INVALID.  LOVELL V. GRIFFIN HAS, IN EFFECT, HELD THAT
DISCRETIONARY CONTROL IN THE GENERAL AREA OF FREE SPEECH IS
UNCONSTITUTIONAL.  THEREFORE, THE HAZARD THAT THE LICENSE PROPERLY
GRANTED WOULD BE IMPROPERLY REVOKED IS FAR TOO SLIGHT TO JUSTIFY
DECLARING THE VALID PART OF THE ORDINANCE, WHICH IS ALONE NOW AT ISSUE,
ALSO UNCONSTITUTIONAL. 

THE JUDGMENTS IN NOS. 280, 314 AND 966 ARE AFFIRMED. 

FN1  "4.  PENALTIES.  IT SHALL BE UNLAWFUL FOR ANY PERSON  ...  TO
ENGAGE IN ANY OF THE BUSINESSES OR VOCATIONS FOR WHICH A LICENSE MAY BE
REQUIRED WITHOUT FIRST HAVING PROCURED A LICENSE THEREFOR, AND ANY
VIOLATION HEREOF SHALL CONSTITUTE A CRIMINAL OFFENSE, AND SHALL BE
PUNISHABLE BY FINE  ...  AND BY IMPRISONMENT. 

     .         .         .         .        . 

"9.  PERSONS ENGAGED IN TWO OR MORE VOCATIONS.  ALL TRADES OR
VOCATIONS DEALING IN TWO OR MORE OF THE ARTICLES OR ENGAGED IN TWO OR
MORE OF THE TRADES OR VOCATIONS FOR WHICH LICENSES ARE REQUIRED BY THE
CITY, SHALL PAY FOR AND TAKE OUT LICENSES FOR EACH LINE OF BUSINESS,
CALLING OR VOCATION. 

.         .         .         .         . 

"12.  VOCATIONS NOT SPECIFIED HEREIN.  ANY APPLICANT DESIRING TO
CONDUCT ANY BUSINESS OR VOCATION OTHER THAN THOSE SPECIFIED IN THIS
LICENSE ORDINANCE SHALL MAKE APPLICATION TO THE PRESIDENT OF THE
COMMISSION, WHO SHALL THEREON FIX A REASONABLE LICENSE FOR SUCH
BUSINESS OR VOCATION AND INSTRUCT THE CLERK AS TO THE AMOUNT SO
FIXED." 

FN2  "AGENTS (ANNUAL ONLY) 

BOOK AGENTS (BIBLES EXCEPTED)  ...  10.00 

     .         .         .         .       . 

TRANSIENT OR ITINERANT AGENTS SELLING RUGS, ANTIQUES, GOODS, WARES,
MERCHANDISE OR TAKING ORDERS FOR SAME  ...  25.00 

     .         .         .         .         . 

"PEDDLERS, OR ITINERANT DEALERS, DISTRIBUTORS OR SALESMEN NOT
OTHERWISE INCLUDED IN THIS SCHEDULE (ANNUAL ONLY)  ...  75.00 

    .         .         .         .         . 

"TRANSIENT AGENTS OR DEALERS OR DISTRIBUTORS OF BOOKS (ANNUAL ONLY)
...  5.00 

"TRANSIENT DEALERS  ...  25.00 

(NOT  COVERED HERETOFORE IN THIS SCHEDULE, DEFINITION SAME AS
TRANSIENT DEALER.) 

     .         .         .         .         . 

"THERE WILL BE AN ISSUANCE FEE OF $0.50 ADDED TO AND COLLECTED ON
EACH LICENSE." 

FN3  "1.  RIGHT OF CITY TO REVOKE.  ALL LICENSES, PERMITS OR OTHER
GRANTS TO CARRY ON ANY BUSINESS, TRADE, VOCATION, OR PROFESSIONS FOR
WHICH A CHARGE IS MADE BY THE CITY SHALL BE SUBJECT TO REVOCATION IN
THE DISCRETION OF THE CITY COMMISSION, WITH OR WITHOUT NOTICE TO THE
LICENSEE." 

FN4  "SHOULD ANY SECTION, CONDITION, OR PROVISION OR ANY RATE OR
AMOUNT SCHEDULED AS AGAINST ANY PARTICULAR OCCUPATION EXHIBITED IN THE
FOREGOING SCHEDULE BE HELD VOID OR INVALID, SUCH INVALIDITY SHALL NOT
AFFECT ANY OTHER SECTION, RATE OR PROVISION OF THIS LICENSE SCHEDULE." 

FN5  HIS WIFE WAS SELLING PAMPHLETS FROM A PORTABLE STAND ON THE
SIDEWALK NEARBY. 

FN6  "BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF THE CITY OF
FORT SMITH, ARKANSAS: 

"SECTION 1.  THAT THE LICENSE HEREINAFTER NAMED SHALL BE FIXED AND
IMPOSED AND COLLECTED AT THE FOLLOWING RATES AND SUMS AND IT SHALL BE
UNLAWFUL FOR ANY PERSON OR PERSONS TO EXERCISE OR PURSUE ANY OF THE
FOLLOWING VOCATIONS OF BUSINESS IN THE CITY OF FORT SMITH, ARKANSAS,
WITHOUT FIRST HAVING OBTAINED A LICENSE THEREFOR FROM THE CITY CLERK
AND HAVING PAID FOR THE SAME.  ... 

"SECTION 40.  FOR EACH PERSON PEDDLING DRY GOODS, NOTIONS, WEARING
APPAREL, HOUSEHOLD GOODS OR OTHER ARTICLES NOT HEREIN OR OTHERWISE
SPECIFICALLY MENTIONED $25 PER MONTH, $10 PER WEEK, $2.50 PER DAY.  A
PERSON, FIRM OR CORPORATION USING TWO OR MORE MEN IN THEIR PEDDLING
BUSINESS $50 PER ANNUM." 

FN7  "SECTION 1.  IT SHALL BE UNLAWFUL FOR ANY PERSON  ...  TO CARRY
ON ANY TRADE, CALLING, PROFESSION, OCCUPATION OR BUSINESS, IN THIS
ORDINANCE SPECIFIED, WITHOUT FIRST HAVING PROCURED A LICENSE FROM THE
CITY OF CASA GRANDE, SO TO DO,  ...  AND EACH AND EVERY DAY OR
FRACTIONAL PART OF A DAY THAT ANY TRADE, CALLING, PROFESSION, BUSINESS
OR OCCUPATION IN THIS ORDINANCE SPECIFIED IS CONDUCTED OR CARRIED ON
WITHOUT SUCH LICENSE SHALL BE A MISDEMEANOR,  ...    "SECTION 2.  IT
SHALL BE THE DUTY OF THE CITY CLERK  ...  TO PREPARE AND TO ISSUE A
LICENSE UNDER THIS ORDINANCE FOR EVERY PERSON  ...  LIABLE TO PAY A
LICENSE HEREUNDER.  ... 

"SECTION 4.  ...  EVERY PERSON HAVING SUCH A LICENSE, AND NOT HAVING
A FIXED PLACE OF BUSINESS SHALL CARRY SUCH LICENSE WITH HIM AT ALL
TIMES WHILE CARRYING ON THE TRADE  ...  OR BUSINESS FOR WHICH THE SAME
WAS GRANTED.  EVERY PERSON  ...  HAVING A LICENSE  ...  SHALL PRODUCE
AND EXHIBIT THE SAME,  ...  WHENEVER REQUESTED TO DO SO BY ANY POLICE
OFFICER OR BY ANY OTHER OFFICER AUTHORIZED TO ISSUE, INSPECT OR COLLECT
LICENSES."    FN8  "SECTION 12.  PEDDLERS, TRANSIENT MERCHANTS,
VENDORS, DEFINED: 

(A)  'TRANSIENT MERCHANT' WITHIN THE MEANING OF THIS ORDINANCE SHALL
INCLUDE EVERY PERSON WHO, NOT FOR OR IN CONNECTION WITH A BUSINESS AT A
FIXED PLACE WITHIN THE CITY OF CASA GRANDE, SOLICITS ORDERS FROM HOUSE
TO HOUSE FOR THE FUTURE DELIVERY OF GOODS, OR WHO SHALL DELIVER GOODS
PREVIOUSLY SOLICITED BY A SOLICITOR AT RETAIL, OR AN ORDER FOR FUTURE
DELIVERY. 

(B)  AS USED IN THIS ORDINANCE, THE TERM 'PEDDLERS' SHALL INCLUDE
SOLICITORS AND OTHER VENDORS NOT HAVING A PERMANENT PLACE OF BUSINESS
IN THE CITY OF CASA GRANDE, AND WHO ARE NOT SPECIFICALLY LICENSED OR
PERMITTED TO SELL ANY CLASS OF GOODS WHATSOEVER. 

(C)  AS USED IN THIS ORDINANCE, THE TERM 'STREET VENDORS' INCLUDES
ALL PERSONS ENGAGED IN SELLING IN OR UPON THE STREETS, ALLEYS OR VACANT
GROUNDS WITHIN THE CITY, ANY GOODS, WARES, MERCHANDISE OR ARTICLES,
INCLUDING PHOTOGRAPHS, AND ALSO INCLUDES ALL PERSONS ENGAGED IN
CONDUCTING UPON THE STREETS, ALLEYS, OR VACANT GROUNDS OF THE CITY ANY
RING, KNIFE OR SIMILAR GAME, OR ANY 'FAKER' BUSINESS, GAME OR DEVICE. 

ALL PERSONS COMING WITHIN THE DEFINITION OF THE OCCUPATIONS DEFINED
HEREIN SHALL PAY A QUARTERLY LICENSE FEE OF TWENTY FIVE DOLLARS
($25.00), IN ADVANCE." 

FN9  CF. SEABOARD AIR LINE RY. CO. V. WATSON, 287 U.S. 86; NEW YORK
V. KLEINERT, 268 U.S. 646; DEWEY V. DES MOINES, 173 U.S. 193; AND CLARK
V. PAUL GRAY, INC., 306 U.S. 583; STANDARD STOCK FOOD CO. V. WRIGHT,
225 U.S. 540. 

FN10  VALENTINE V. CHRESTENSEN, ANTE, 52, 54-55; CHAPLINSKY V. NEW
HAMPSHIRE, 315 U.S. 568, 571, AND CASES CITED; MINERSVILLE SCHOOL
DISTRICT V. GOBITIS, 310 U.S. 586, 594; CANTWELL V. CONNECTICUT, 310
U.S. 296, 304, 310; SCHNEIDER V. STATE, 308 U.S. 147, 165; HAGUE V.
C.I.O., 307 U.S. 496, 515-516; DE JONGE V. OREGON, 299 U.S. 353, 364. 

FN11  CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568, 570-571; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303; SCHNEIDER V. STATE, 308 U.S. 147, 160;
LOVELL V. GRIFFIN, 303 U.S. 444, 450; GITLOW V. NEW YORK, 268 U.S.
652. 

FN12  COX V. NEW HAMPSHIRE, 312 U.S. 569, 574; HOME BLDG. & L. ASSN.
V. BLAISDELL, 290 U.S. 398, 435. 

FN13  CANTWELL V. CONNECTICUT, 310 U.S. 296, 303; REYNOLDS V. UNITED
STATES, 98 U.S. 145, 166. 

FN14  COX V. NEW HAMPSHIRE, 312 U.S. 569, 573, 576; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 306; SCHNEIDER V. STATE, 308 U.S. 147, 160. 

FN15 CF. SCHNEIDER V. STATE, SUPRA, 161. 

FN16  CF. HAGUE V. C.I.O., 307 U.S. 496, 516. 

FN17  HAGUE V. C.I.O., 307 U.S. 496, 501, 518, INVALIDATES AN
ORDINANCE FORBIDDING ANY PERSON TO "DISTRIBUTE OR CAUSE TO BE
DISTRIBUTED OR STREWN ABOUT ANY STREET OR PUBLIC PLACE ANY NEWSPAPERS,
PAPER, PERIODICAL, BOOK, MAGAZINE, CIRCULAR, CARD, OR PAMPHLET," P.
501; SCHNEIDER V. STATE, 308 U.S. 147, 162, HOLDS SIMILAR PROHIBITORY
ORDINANCES UNCONSTITUTIONAL. 

FN18  CF. CITY OF MANCHESTER V. LEIBY, 117 F.2D 661, REQUIREMENT OF
BADGE FOR STREET SELLING OF BOOKS, PAPERS OR PAMPHLETS. 

FN19  COX V. NEW HAMPSHIRE, 312 U.S. 569, 572, 573, 576. 

MR. CHIEF JUSTICE STONE: 

THE FIRST AMENDMENT, WHICH THE FOURTEENTH MAKES APPLICABLE TO THE
STATES, DECLARES:  "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."  I THINK THAT THE
ORDINANCE IN EACH OF THESE CASES IS ON ITS FACE A PROHIBITED INVASION
OF THE FREEDOMS THUS GUARANTEED, AND THAT THE JUDGMENT IN EACH SHOULD
BE REVERSED. 

THE ORDINANCE IN THE OPELIKA CASE SHOULD BE HELD INVALID ON TWO
INDEPENDENT GROUNDS.  ONE IS THAT THE ANNUAL TAX IN ADDITION TO THE 50
CENT "ISSUANCE FEE" WHICH THE ORDINANCE IMPOSES IS AN UNCONSTITUTIONAL
RESTRICTION ON THOSE FREEDOMS, FOR REASONS WHICH WILL PRESENTLY
APPEAR.  THE OTHER IS THAT THE REQUIREMENT OF A LICENSE FOR
DISSEMINATION OF IDEAS, WHEN, AS HERE, THE LICENSE IS REVOCABLE AT WILL
WITHOUT CAUSE AND IN THE UNRESTRAINED DISCRETION OF ADMINISTRATIVE
OFFICERS, IS LIKEWISE AN UNCONSTITUTIONAL RESTRAINT ON THOSE FREEDOMS. 

THE SOLE CONDITION WHICH THE OPELIKA ORDINANCE PRESCRIBES FOR GRANT
OF THE LICENSE IS PAYMENT OF THE DESIGNATED ANNUAL TAX AND ISSUANCE
FEE.  THE PRIVILEGE THUS PURCHASED, FOR THE PERIOD OF A YEAR, IS
FORTHWITH REVOCABLE IN THE UNRESTRAINED AND UNREVIEWABLE DISCRETION OF
THE LICENSING COMMISSION, WITHOUT CAUSE AND WITHOUT NOTICE OR
OPPORTUNITY FOR A HEARING.  THE CASE PRESENTS IN ITS BALDEST FORM THE
QUESTION WHETHER THE FREEDOMS WHICH THE CONSTITUTION PURPORTS TO
SAFEGUARD CAN BE COMPLETELY SUBJECTED TO UNCONTROLLED ADMINISTRATIVE
ACTION.  ONLY RECENTLY THIS COURT WAS UNANIMOUS IN HOLDING VOID ON ITS
FACE THE REQUIREMENT OF A LICENSE FOR THE DISTRIBUTION OF PAMPHLETS
WHICH WAS TO BE ISSUED IN THE SOLE DISCRETION OF A MUNICIPAL OFFICER. 
LOVELL V. GRIFFIN, 303 U.S. 444, 451.  THE PRECISE GROUND OF OUR
DECISION WAS THAT THE ORDINANCE MADE ENJOYMENT OF THE FREEDOM WHICH THE
CONSTITUTION GUARANTEES CONTINGENT UPON THE UNCONTROLLED WILL OF
ADMINISTRATIVE OFFICERS.  WE DECLARED: 

"WE THINK THAT THE ORDINANCE IS INVALID ON ITS FACE.  WHATEVER THE
MOTIVE WHICH INDUCED ITS ADOPTION, ITS CHARACTER IS SUCH THAT IT
STRIKES AT THE VERY FOUNDATION OF THE FREEDOM OF THE PRESS BY
SUBJECTING IT TO LICENSE AND CENSORSHIP.  THE STRUGGLE FOR THE FREEDOM
OF THE PRESS WAS PRIMARILY DIRECTED AGAINST THE POWER OF THE LICENSOR. 
IT WAS AGAINST THAT POWER THAT JOHN MILTON DIRECTED HIS ASSAULT BY HIS
'APPEAL FOR THE LIBERTY OF UNLICENSED PRINTING.'  AND THE LIBERTY OF
THE PRESS BECAME INITIALLY A RIGHT TO PUBLISH 'WITHOUT A LICENSE WHAT
FORMERLY COULD BE PUBLISHED ONLY WITH ONE.'  WHILE THIS FREEDOM FROM
PREVIOUS RESTRAINT UPON PUBLICATION CANNOT BE REGARDED AS EXHAUSTING
THE GUARANTY OF LIBERTY, THE PREVENTION OF THAT RESTRAINT WAS A LEADING
PURPOSE IN THE ADOPTION OF THE CONSTITUTIONAL PROVISION." 

THAT PURPOSE CANNOT RIGHTLY BE DEFEATED BY SO TRANSPARENT A
SUBTERFUGE AS THE PRONOUNCEMENT THAT, WHILE A LICENSE MAY NOT BE
REQUIRED IF ITS AWARD IS CONTINGENT UPON THE WHIM OF AN ADMINISTRATIVE
OFFICER, IT MAY BE IF ITS RETENTION AND THE ENJOYMENT OF THE PRIVILEGE
WHICH IT PURPORTS TO GIVE ARE WHOLLY CONTINGENT UPON HIS WHIM.  IN
EITHER CASE, ENJOYMENT OF THE FREEDOM IS DEPENDENT UPON THE SAME
CONTINGENCY, AND THE CENSORSHIP IS AS EFFECTIVE IN ONE AS IN THE
OTHER.  NOR IS ANY PALLIATIVE AFFORDED BY THE ASSERTION THAT THE
DEFENDANT'S FAILURE TO APPLY FOR A LICENSE DEPRIVES HIM OF STANDING TO
CHALLENGE THE ORDINANCE BECAUSE OF ITS REVOCATION PROVISION, BY THE
TERMS OF WHICH RETENTION OF THE LICENSE AND EXERCISE OF THE PRIVILEGE
MAY BE CUT OFF AT ANY TIME WITHOUT CAUSE. 

INDEED, THE PRESENT ORDINANCE IS A MORE CALLOUS DISREGARD OF THE
CONSTITUTIONAL RIGHT THAN THAT EXHIBITED IN LOVELL V. GRIFFIN, SUPRA.
THERE AT LEAST THE DEFENDANT MIGHT HAVE BEEN GIVEN A LICENSE IF HE HAD
APPLIED FOR IT.  IN ANY EVENT HE WOULD NOT HAVE BEEN COMPELLED TO PAY A
MONEY EXACTION FOR A LICENSE TO EXERCISE THE PRIVILEGE OF FREE SPEECH -
A LICENSE WHICH IF GRANTED IN THIS CASE WOULD HAVE BEEN WHOLLY
ILLUSORY.  HERE THE DEFENDANT JONES WAS PROHIBITED FROM DISTRIBUTING
HIS PAMPHLETS AT ALL, UNLESS HE PAID IN ADVANCE A YEAR'S TAX FOR THE
EXERCISE OF THE PRIVILEGE AND SUBJECTED HIMSELF TO TERMINATION OF THE
LICENSE WITHOUT CAUSE, NOTICE OR HEARING, AT THE WILL OF CITY
OFFICIALS.  TO SAY THAT HE WHO IS FREE TO WITHHOLD AT WILL THE
PRIVILEGE OF PUBLICATION EXERCISES A POWER OF CENSORSHIP PROHIBITED BY
THE CONSTITUTION, BUT THAT HE WHO HAS UNRESTRICTED POWER TO WITHDRAW
THE PRIVILEGE DOES NOT, WOULD BE TO IGNORE HISTORY AND DENY THE
TEACHINGS OF EXPERIENCE, AS WELL AS TO PERPETUATE THE EVILS AT WHICH
THE FIRST AMENDMENT WAS AIMED. 

IT IS OF NO SIGNIFICANCE THAT THE DEFENDANT DID NOT APPLY FOR A
LICENSE.  AS THIS COURT HAS OFTEN POINTED OUT, WHEN A LICENSING STATUTE
IS ON ITS FACE A LAWFUL EXERCISE OF REGULATORY POWER, IT WILL NOT BE
ASSUMED THAT IT WILL BE UNLAWFULLY ADMINISTERED IN ADVANCE OF AN ACTUAL
DENIAL OF APPLICATION FOR THE LICENSE.  BUT HERE IT IS THE PROHIBITION
OF PUBLICATION, SAVE AT THE UNCONTROLLED WILL OF PUBLIC OFFICIALS,
WHICH TRANSGRESSES CONSTITUTIONAL LIMITATIONS AND MAKES THE ORDINANCE
VOID ON ITS FACE.  THE CONSTITUTION CAN HARDLY BE THOUGHT TO DENY TO
ONE SUBJECTED TO THE RESTRAINTS OF SUCH AN ORDINANCE THE RIGHT TO
ATTACK ITS CONSTITUTIONALITY, BECAUSE HE HAS NOT YIELDED TO ITS
DEMANDS.  LOVELL V. GRIFFIN, SUPRA, 452-53; SMITH V. CAHOON, 283 U.S.
553, 562.  THE QUESTION OF STANDING TO RAISE THE ISSUE IN THIS CASE IS
INDISTINGUISHABLE FROM THAT IN THE LOVELL CASE, WHERE IT WAS RESOLVED
IN THE ONLY MANNER CONSISTENT WITH THE FIRST AMENDMENT. 

THE SEPARABILITY PROVISION OF THE OPELIKA ORDINANCE  FN1  CANNOT
SERVE, IN ADVANCE OF JUDICIAL DECISION BY THE STATE COURT, TO SEPARATE
THOSE PARTS WHICH ARE CONSTITUTIONALLY APPLICABLE FROM THOSE WHICH ARE
NOT.  WE HAVE NO MEANS OF KNOWING THAT THE CITY WOULD GRANT ANY LICENSE
IF THE LICENSE COULD NOT BE MADE REVOCABLE AT WILL.  THE STATE COURT
APPLIED THE ORDINANCE AS WRITTEN.  IT DID NOT RELY OR PASS UPON THE
EFFECT TO BE GIVEN TO THE SEPARABILITY CLAUSE, OR DETERMINE WHETHER ANY
EFFECT WAS TO BE GIVEN TO IT.  UNTIL IT HAS DONE SO, THIS COURT - AS WE
DECIDED ONLY LAST MONDAY - MUST DETERMINE THE CONSTITUTIONAL VALIDITY
OF THE ORDINANCE AS IT STANDS AND AS IT STOOD WHEN OBEDIENCE TO IT WAS
DEMANDED AND PUNISHMENT FOR ITS VIOLATION INFLICTED.  SKINNER V.
OKLAHOMA, ANTE, P. 535; SMITH V. CAHOON, SUPRA, 563-64. 

IN ALL THREE CASES THE QUESTION PRESENTED BY THE RECORD AND FULLY
ARGUED HERE AND BELOW IS WHETHER THE ORDINANCES - WHICH AS APPLIED
PENALIZE THE DEFENDANTS FOR NOT HAVING PAID THE FLAT FEE TAXES LEVIED -
VIOLATE THE FREEDOM OF SPEECH, PRESS, AND RELIGION GUARANTEED BY THE
FIRST AND FOURTEENTH AMENDMENTS.  DEFENDANTS' CHALLENGE TO THE
ORDINANCES, NAMING THEM, IS A CHALLENGE TO THE SUBSTANTIAL TAXES WHICH
THEY IMPOSE, IN SPECIFIED AMOUNTS, AND NOT TO SOME TAX OF A DIFFERENT
OR LESSER AMOUNT WHICH SOME OTHER ORDINANCE MIGHT LEVY.  IN THEIR
BRIEFS HERE THEY ARGUE, AS UPON THE RECORDS THEY ARE ENTITLED TO DO,
THAT THE TAXES ARE AN UNCONSTITUTIONAL BURDEN ON THE RIGHT OF FREE
SPEECH AND FREE RELIGION, COMPARABLE TO LICENSE TAXES WHICH THIS COURT
HAS OFTEN HELD TO BE AN INADMISSIBLE BURDEN ON INTERSTATE COMMERCE. 
THEY ARGUE ALSO THAT THE CUMULATIVE EFFECT OF SUCH TAXES, IN TOWN AFTER
TOWN THROUGHOUT THE COUNTRY, WOULD BE DESTRUCTIVE OF FREEDOM OF THE
PRESS FOR ALL PERSONS EXCEPT THOSE FINANCIALLY ABLE TO DISTRIBUTE THEIR
LITERATURE WITHOUT SOLICITING FUNDS FOR THE SUPPORT OF THEIR CAUSE. 

WHILE THESE ARE QUESTIONS WHICH HAVE BEEN STUDIOUSLY LEFT UNANSWERED
BY THE OPINION OF THE COURT, IT SEEMS INESCAPABLE THAT AN ANSWER MUST
BE GIVEN BEFORE THE CONVICTIONS CAN BE SUSTAINED.  DECISION OF THEM
CANNOT RIGHTLY BE AVOIDED NOW BY ASSERTING THAT THE AMOUNT OF THE TAX
HAS NOT BEEN PUT IN ISSUE; THAT THE TAX IS "UNCONTESTED IN AMOUNT" BY
THE DEFENDANTS, AND CAN THEREFORE BE ASSUMED BY US TO BE "PRESUMABLY
APPROPRIATE," "REASONABLE," OR "SUITABLY CALCULATED"; THAT IT HAS NOT
BEEN PROVED THAT THE BURDEN OF THE TAX IS A SUBSTANTIAL CLOG ON THE
ACTIVITIES OF THE DEFENDANTS, OR THAT THOSE WHO HAVE DEFRAYED THE
EXPENSE OF THEIR RELIGIOUS ACTIVITIES WILL NOT WILLINGLY DEFRAY THE
LICENSE TAXES ALSO.  ALL THESE ARE CONSIDERATIONS WHICH WOULD SEEM TO
BE IRRELEVANT TO THE QUESTION NOW BEFORE US - WHETHER A FLAT TAX, MORE
THAN A NOMINAL FEE TO DEFRAY THE EXPENSES OF A REGULATORY LICENSE, CAN
CONSTITUTIONALLY BE LAID ON A NON-COMMERCIAL, NON-PROFIT ACTIVITY
DEVOTED EXCLUSIVELY TO THE DISSEMINATION OF IDEAS, EDUCATIONAL AND
RELIGIOUS IN CHARACTER, TO THOSE PERSONS WHO CONSENT TO RECEIVE THEM. 

NOR IS THE ESSENTIAL ISSUE HERE DISGUISED BY THE REITERATED
CHARACTERIZATION OF THESE EXACTIONS, NOT AS TAXES BUT AS "FEES" - A
CHARACTERIZATION TO WHICH THE RECORDS LEND NO SUPPORT.  ALL THESE
ORDINANCES ON THEIR FACE PURPORT TO BE AN EXERCISE OF THE
MUNICIPALITY'S TAXING POWER.  IN NONE IS THERE THE SLIGHTEST PRETENSE
BY THE TAXING AUTHORITY, OR THE SLIGHTEST SUGGESTION BY THE STATE
COURT, THAT THE "FEE" IS TO DEFRAY EXPENSES OF THE LICENSING SYSTEM. 
THE AMOUNTS OF THE "FEES," WITHOUT MORE, DEMONSTRATE THAT SUCH A
CONTENTION IS GROUNDLESS.  IN NO. 280, OPELIKA ITSELF CONTENDS THAT THE
ISSUE RELATES SOLELY TO ITS POWER TO RAISE MONEY FOR GENERAL REVENUE
PURPOSES, AND THE SUPREME COURT OF ALABAMA REFERRED TO THE LEVY AS A
"REASONABLE" "TAX."  THE TAX EXACTED BY OPELIKA, ON THE FACE OF THE
ORDINANCE, IS IN ADDITION TO A 50 CENT "ISSUANCE FEE," WHICH ALONE IS
PRESUMABLY WHAT THE CITY DEEMS ADEQUATE TO DEFRAY THE COST OF
ADMINISTERING THE LICENSING SYSTEM.  SIMILARLY IN THE FORT SMITH AND
CASA GRANDE CASES, THE STATE COURTS SUSTAINED THE ORDINANCES AS A TAX,
AND NOTHING ELSE.  IF THIS LITIGATION HAS INVOLVED ANY CONTROVERSY -
AND THE STATE COURTS ALL SEEMED TO THINK THAT IT DID - THE CONTROVERSY
HAS BEEN ONE SOLELY RELATING TO THE POWER TO TAX, AND NOT THE POWER TO
COLLECT A "FEE" TO SUPPORT A LICENSING SYSTEM WHICH, AS HAS ALREADY
BEEN INDICATED, HAS NO REGULATORY PURPOSE OTHER THAN THAT INVOLVED IN
THE RAISING OF REVENUE.    THIS COURT HAS OFTEN HAD OCCASION TO POINT
OUT THAT WHERE THE STATE MAY, AS A REGULATORY MEASURE, LICENSE
ACTIVITIES WHICH IT IS WITHOUT CONSTITUTIONAL AUTHORITY TO TAX, IT MAY
CHARGE A SMALL OR NOMINAL FEE SUFFICIENT TO DEFRAY THE EXPENSE OF
LICENSING, AND SIMILARLY IT MAY CHARGE A REASONABLE FEE FOR THE USE OF
ITS HIGHWAYS BY INTERSTATE MOTOR TRAFFIC WHICH IT CANNOT TAX.  COMPARE
CLARK V. PAUL GRAY, INC., 306 U.S. 583, 598-600, WITH INGELS V. MORF,
300 U.S. 290, AND CASES CITED; SEE COX V. NEW HAMPSHIRE, 312 U.S. 569,
576-77.  BUT WE ARE NOT CONCERNED IN THESE CASES WITH A NOMINAL FEE FOR
A REGULATORY LICENSE, WHICH MAY BE ASSUMED, FOR ARGUMENT'S SAKE, TO BE
VALID.  HERE THE LICENSES ARE NOT REGULATORY, SAVE AS THE LICENSES
CONDITIONED UPON PAYMENT OF THE TAX MAY SERVE TO RESTRAIN OR SUPPRESS
PUBLICATION.  NONE OF THE ORDINANCES, IF COMPLIED WITH, PURPORTS TO, OR
COULD, CONTROL THE TIME, PLACE OR MANNER OF THE DISTRIBUTION OF THE
BOOKS AND PAMPHLETS CONCERNED.  NONE HAS ANY DISCERNIBLE RELATIONSHIP
TO THE POLICE PROTECTION OR THE GOOD ORDER OF THE COMMUNITY.  THE ONLY
CONDITION AND PURPOSE OF THE LICENSES UNDER ALL THREE ORDINANCES IS
SUPPRESSION OF THE SPECIFIED DISTRIBUTIONS OF LITERATURE IN DEFAULT OF
THE PAYMENT OF A SUBSTANTIAL TAX FIXED IN AMOUNT AND MEASURED NEITHER
BY THE EXTENT OF THE DEFENDANTS' ACTIVITIES UNDER THE LICENSE NOR THE
AMOUNTS WHICH THEY RECEIVE FOR AND DEVOTE TO RELIGIOUS PURPOSES IN THE
EXERCISE OF THE LICENSED PRIVILEGE.  OPELIKA EXACTS A LICENSE FEE FOR
BOOK AGENTS OF $10 PER ANNUM, AND OF $5 PER ANNUM FOR TRANSIENT
DISTRIBUTORS OF BOOKS, IN ADDITION TO A 50 CENT "ISSUANCE FEE" ON EACH
LICENSE.  THE SUPREME COURT OF ALABAMA FOUND IT UNNECESSARY TO
DETERMINE WHETHER BOTH OR ONLY ONE OF THESE TAXES WAS PAYABLE BY
DEFENDANT JONES.  THE FORT SMITH TAX OF $25 A MONTH, OR $10 A WEEK, OR
$2.50 A DAY IS SUBSTANTIAL IN AMOUNT FOR TRANSIENT DISTRIBUTORS OF
LITERATURE OF THE CHARACTER HERE INVOLVED; THE OPELIKA EXACTION IS EVEN
MORE ONEROUS WHEN APPLIED AGAINST ONE WHO MAY BE IN THE CITY FOR ONLY A
DAY OR TWO; AND THE TAX OF $25 PER QUARTER EXACTED BY THE CASA GRANDE
ORDINANCE, ADOPTED IN A COMMUNITY HAVING AN ADULT POPULATION OF LESS
THAN 1,000 AND APPLIED TO DISTRIBUTIONS OF LITERATURE LIKE THE PRESENT,
IS PROHIBITIVE IN EFFECT. 

IN CONSIDERING THE EFFECT OF SUCH A TAX ON THE DEFENDANTS'
ACTIVITIES, IT IS IMPORTANT TO NOTE THAT THE STATE COURTS HAVE APPLIED
LEVIES OBVIOUSLY DEVISED FOR THE TAXATION OF BUSINESS EMPLOYMENTS - IN
THE FIRST CASE THE "BUSINESS OR VOCATION" OF "BOOK AGENT"; IN THE
SECOND THE BUSINESS OF PEDDLING SPECIFIED TYPES OF MERCHANDISE OR
"OTHER ARTICLES"; IN THE THIRD, THE PRACTICE OF THE CALLINGS OF
"PEDDLERS, TRANSIENT MERCHANTS AND VENDORS" - TO ACTIVITIES WHICH
CONCEDEDLY ARE NOT ORDINARY BUSINESS OR COMMERCIAL TRANSACTIONS.  AS
APPEARS BY STIPULATION OR UNDISPUTED TESTIMONY, THE DEFENDANTS ARE
JEHOVAH'S WITNESSES, ENGAGED IN SPREADING THEIR RELIGIOUS DOCTRINES IN
CONFORMITY TO THE TEACHINGS OF ST. MATTHEW, MATT.  10:11-14 AND 24:14,
BY GOING FROM CITY TO CITY, FROM VILLAGE TO VILLAGE, AND HOUSE TO
HOUSE, TO PROCLAIM THEM.  AFTER ASKING AND RECEIVING PERMISSION FROM
THE HOUSEHOLDER, THEY PLAY TO HIM PHONOGRAPH RECORDS AND TENDER TO HIM
BOOKS OR PAMPHLETS ADVOCATING THEIR RELIGIOUS VIEWS.  FOR THE LATTER
THEY ASK PAYMENT OF A NOMINAL AMOUNT, TWO TO FIVE CENTS FOR THE
PAMPHLETS AND TWENTY-FIVE CENTS FOR BOOKS, AS A CONTRIBUTION TO THE
RELIGIOUS CAUSE WHICH THEY SEEK TO ADVANCE.  BUT THEY DISTRIBUTE THE
PAMPHLETS, AND SOMETIMES THE BOOKS, GRATIS WHEN THE HOUSEHOLDER IS
UNWILLING OR UNABLE TO PAY FOR THEM.  THE LITERATURE IS PUBLISHED FOR
SUCH DISTRIBUTION BY NON-PROFIT CHARITABLE CORPORATIONS ORGANIZED BY
JEHOVAH'S WITNESSES.  THE FUNDS COLLECTED ARE USED FOR THE SUPPORT OF
THE RELIGIOUS MOVEMENT, AND NO ONE DERIVES A PROFIT FROM THE
PUBLICATION AND DISTRIBUTION OF THE LITERATURE.  IN THE OPELIKA CASE,
THE DEFENDANT'S ACTIVITIES WERE CONFINED TO DISTRIBUTION OF LITERATURE
AND SOLICITATION OF FUNDS IN THE PUBLIC STREETS. 

NO ONE COULD DOUBT THAT TAXATION WHICH MAY BE FREELY LAID UPON
ACTIVITIES NOT WITHIN THE PROTECTION OF THE BILL OF RIGHTS COULD, WHEN
APPLIED TO THE DISSEMINATION OF IDEAS, BE MADE THE READY INSTRUMENT FOR
DESTRUCTION OF THAT RIGHT.  FEW WOULD DENY THAT A LICENSE TAX LAID
SPECIFICALLY ON THE PRIVILEGE OF DISSEMINATING IDEAS WOULD INFRINGE THE
RIGHT OF FREE SPEECH.  FOR ONE REASON AMONG OTHERS, IF THE STATE MAY
TAX THE PRIVILEGE IT MAY FIX THE RATE OF TAX AND, THROUGH THE TAX,
CONTROL OR SUPPRESS THE ACTIVITY WHICH IT TAXES.  MAGNANO CO. V.
HAMILTON, 292 U.S. 40, 45; GROSJEAN V. AMERICAN PRESS CO., 297 U.S.
233, 244-45.  IF THE DISTRIBUTION OF THE LITERATURE HAD BEEN CARRIED ON
BY THE DEFENDANTS WITHOUT SOLICITATION OF FUNDS, THERE PLAINLY WOULD
HAVE BEEN NO BASIS, EITHER STATUTORY OR CONSTITUTIONAL, FOR LEVYING THE
TAX.  IT IS THE COLLECTION OF FUNDS WHICH HAVE BEEN SEIZED UPON TO
JUSTIFY THE EXTENSION, TO THE DEFENDANTS' ACTIVITIES, OF THE TAX LAID
UPON BUSINESS CALLINGS.  BUT IF WE ASSUME, DESPITE OUR RECENT DECISION
IN SCHNEIDER V. STATE, 308 U.S. 147, 163, THAT THE ESSENTIAL CHARACTER
OF THESE ACTIVITIES IS IN SOME MEASURE ALTERED BY THE COLLECTION OF
FUNDS FOR THE SUPPORT OF A RELIGIOUS UNDERTAKING, STILL IT SEEMS PLAIN
THAT THE OPERATION OF THE PRESENT FLAT TAX IS SUCH AS TO ABRIDGE THE
PRIVILEGES WHICH THE DEFENDANTS HERE INVOKE. 

IT LENDS NO SUPPORT TO THE PRESENT TAX TO INSIST THAT ITS RESTRAINT
ON FREE SPEECH AND RELIGION IS NON-DISCRIMINATORY BECAUSE THE SAME LEVY
IS MADE UPON BUSINESS CALLINGS CARRIED ON FOR PROFIT, MANY OF WHICH
INVOLVE NO QUESTION OF FREEDOM OF SPEECH AND RELIGION AND ALL OF WHICH
INVOLVE COMMERCIAL ELEMENTS - LACKING HERE - WHICH FOR PRESENT PURPOSES
MAY BE ASSUMED TO AFFORD A BASIS FOR TAXATION APART FROM THE EXERCISE
OF FREEDOM OF SPEECH AND RELIGION.  THE CONSTITUTIONAL PROTECTION OF
THE BILL OF RIGHTS IS NOT TO BE EVADED BY CLASSIFYING WITH BUSINESS
CALLINGS AN ACTIVITY WHOSE SOLE PURPOSE IS THE DISSEMINATION OF IDEAS,
AND TAXING IT AS BUSINESS CALLINGS ARE TAXED.  THE IMMUNITY WHICH PRESS
AND RELIGION ENJOY MAY SOMETIMES BE LOST WHEN THEY ARE UNITED WITH
OTHER ACTIVITIES NOT IMMUNE.  VALENTINE V. CHRESTENSEN, ANTE, P. 52. 
BUT, HERE, THE ONLY ACTIVITIES INVOLVED ARE THE DISSEMINATION OF IDEAS,
EDUCATIONAL AND RELIGIOUS, AND THE COLLECTION OF FUNDS FOR THE
PROPAGATION OF THOSE IDEAS, WHICH WE HAVE SAID IS LIKEWISE THE SUBJECT
OF CONSTITUTIONAL PROTECTION.  SCHNEIDER V. STATE, SUPRA; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 304-07. 

THE FIRST AMENDMENT IS NOT CONFINED TO SAFEGUARDING FREEDOM OF SPEECH
AND FREEDOM OF RELIGION AGAINST DISCRIMINATORY ATTEMPTS TO WIPE THEM
OUT.  ON THE CONTRARY, THE CONSTITUTION, BY VIRTUE OF THE FIRST AND THE
FOURTEENTH AMENDMENTS, HAS PUT THOSE FREEDOMS IN A PREFERRED POSITION. 
THEIR COMMANDS ARE NOT RESTRICTED TO CASES WHERE THE PROTECTED
PRIVILEGE IS SOUGHT OUT FOR ATTACK.  THEY EXTEND AT LEAST TO EVERY FORM
OF TAXATION WHICH, BECAUSE IT IS A CONDITION OF THE EXERCISE OF THE
PRIVILEGE, IS CAPABLE OF BEING USED TO CONTROL OR SUPPRESS IT. 

EVEN WERE WE TO ASSUME - WHAT I DO NOT CONCEDE - THAT THERE COULD BE
A LAWFUL NON-DISCRIMINATORY LICENSE TAX OF A PERCENTAGE OF THE GROSS
RECEIPTS COLLECTED BY CHURCHES AND OTHER RELIGIOUS ORDERS IN SUPPORT OF
THEIR RELIGIOUS WORK, CF. GIRAGI V. MOORE, 301 U.S. 670, WE HAVE NO
SUCH TAX HERE.  THE TAX IMPOSED BY THE ORDINANCES IN THESE CASES IS
MORE BURDENSOME AND DESTRUCTIVE OF THE ACTIVITY TAXED THAN ANY GROSS
RECEIPTS TAX.  THE TAX IS FOR A FIXED AMOUNT, UNRELATED TO THE EXTENT
OF THE DEFENDANTS' ACTIVITIES OR THE RECEIPTS DERIVED FROM THEM.  IT IS
THUS THE TYPE OF FLAT TAX WHICH, WHEN APPLIED TO INTERSTATE COMMERCE,
HAS REPEATEDLY BEEN DEEMED BY THIS COURT TO BE PROHIBITED BY THE
COMMERCE CLAUSE.  SEE MCGOLDRICK V. BERWINDWHITE CO., 309 U.S. 33, 55
57, AND CASES CITED; CF. BEST & CO. V. MAXWELL, 311 U.S. 454, 456. 
WHEN APPLIED, AS IT IS HERE, TO ACTIVITIES INVOLVING THE EXERCISE OF
RELIGIOUS FREEDOM, ITS VICE IS EMPHASIZED IN THAT IT IS LEVIED AND PAID
IN ADVANCE OF THE ACTVITIES TAXED, AND APPLIED AT RATES WELL CALCULATED
TO SUPPRESS THOSE ACTIVITIES, SAVE ONLY AS OTHERS MAY VOLUNTEER TO PAY
THE TAX.  IT REQUIRES A SIZABLE OUT-OF-POCKET EXPENSE BY SOMEONE WHO
MAY NEVER SUCCEED IN RAISING A PENNY IN HIS EXERCISE OF THE PRIVILEGE
WHICH IS TAXED. 

THE DEFENDANTS' ACTIVITIES, IF TAXABLE AT ALL, ARE TAXABLE ONLY
BECAUSE OF THE FUNDS WHICH THEY SOLICIT.  BUT THAT SOLICITATION IS FOR
FUNDS FOR RELIGIOUS PURPOSES, AND THE PRESENT TAXES ARE IN NO WAY
GAUGED TO THE RECEIPTS.  THE TAXES ARE INSUPPORTABLE EITHER AS A TAX ON
THE DISSEMINATION OF IDEAS OR AS A TAX ON THE COLLECTION OF FUNDS FOR
RELIGIOUS PURPOSES.  FOR ON ITS FACE A FLAT LICENSE TAX RESTRAINS IN
ADVANCE THE FREEDOM TAXED AND TENDS INEVITABLY TO SUPPRESS ITS
EXERCISE.  THE FIRST AMENDMENT PROHIBITS ALL LAWS ABRIDGING FREEDOM OF
PRESS AND RELIGION, NOT MERELY SOME LAWS OR ALL EXCEPT TAX LAWS.  IT IS
TRUE THAT THE CONSTITUTIONAL GUARANTIES OF FREEDOM OF PRESS AND
RELIGION, LIKE THE COMMERCE CLAUSE, MAKE NO DISTINCTION BETWEEN FIXED
SUM TAXES AND OTHER KINDS.  BUT THAT FACT AFFORDS NO EXCUSE FOR COURTS,
WHOSE DUTY IT IS TO ENFORCE THOSE GUARANTIES, TO CLOSE THEIR EYES TO
THE CHARACTERISTICS OF A TAX WHICH RENDER IT DESTRUCTIVE OF FREEDOM OF
PRESS AND RELIGION. 

WE MAY LAY TO ONE SIDE THE COURT'S SUGGESTION THAT A TAX OTHERWISE
UNCONSTITUTIONAL IS TO BE DEEMED VALID UNLESS IT IS SHOWN THAT THERE
ARE NONE WHO, FOR RELIGION'S SAKE, WILL COME FORWARD TO PAY THE
UNLAWFUL EXACTION.  THE DEFENDANTS TO WHOM THE ORDINANCES HAVE BEEN
APPLIED HAVE NOT PAID IT AND THERE IS NOTHING IN THE CONSTITUTION TO
COMPEL THEM TO SEEK THE CHARITY OF OTHERS TO PAY IT BEFORE PROTESTING
THE TAX.  IT SEEMS FAIRLY OBVIOUS THAT IF THE PRESENT TAXES, LAID IN
SMALL COMMUNITIES UPON PERIPATETIC RELIGIOUS PROPAGANDISTS, ARE TO BE
SUSTAINED, A WAY HAS BEEN FOUND FOR THE EFFECTIVE SUPPRESSION OF SPEECH
AND PRESS AND RELIGION DESPITE CONSTITUTIONAL GUARANTIES.  THE VERY
TAXES NOW BEFORE US ARE BETTER ADAPTED TO THAT END THAN WERE THE STAMP
TAXES WHICH SO SUCCESSFULLY CURTAILED THE DISSEMINATION OF IDEAS BY
EIGHTEENTH CENTURY NEWSPAPERS AND PAMPHLETEERS, AND WHICH WERE A MOVING
CAUSE OF THE AMERICAN REVOLUTION.  SEE COLLETT, HISTORY OF THE TAXES ON
KNOWLEDGE, VOL. 1, C. 1; MAY, CONSTITUTIONAL HISTORY OF ENGLAND, 7TH
ED., VOL. 2, P. 245; HANSON, GOVERNMENT AND THE PRESS, 1695-1763, PP. 7
14; MORISON, THE ENGLISH NEWSPAPER, 1622-1932, PP. 83-88; GROSJEAN V.
AMERICAN PRESS CO., SUPRA, 245-49.  VIVID RECOLLECTIONS OF THE EFFECT
OF THOSE TAXES ON THE FREEDOM OF PRESS SURVIVED TO INSPIRE THE ADOPTION
OF THE FIRST AMENDMENT. 

FREEDOM OF PRESS AND RELIGION, EXPLICITLY GUARANTEED BY THE
CONSTITUTION, MUST AT LEAST BE ENTITLED TO THE SAME FREEDOM FROM
BURDENSOME TAXATION WHICH IT HAS BEEN THOUGHT THAT THE MORE GENERAL
PHRASEOLOGY OF THE COMMERCE CLAUSE HAS EXTENDED TO INTERSTATE
COMMERCE.  WHATEVER DOUBTS MAY BE ENTERTAINED AS TO THIS COURT'S
FUNCTION TO RELIEVE, UNAIDED BY CONGRESSIONAL LEGISLATION, FROM
BURDENSOME TAXATION UNDER THE COMMERCE CLAUSE, SEE GWIN, WHITE &
PRINCE, INC. V. HENNEFORD, 305 U.S. 434, 441, 446-55; MCCARROLL V.
DIXIE LINES, 309 U.S. 176, 184-85, IT CANNOT BE THOUGHT THAT THAT
FUNCTION IS WANTING UNDER THE EXPLICIT GUARANTIES OF FREEDOM OF SPEECH,
PRESS AND RELIGION.  IN ANY CASE, THE FLAT LICENSE TAX CAN HARDLY
BECOME ANY THE LESS BURDENSOME OR MORE PERMISSIBLE, WHEN LEVIED ON
ACTIVITIES WITHIN THE PROTECTION EXTENDED BY THE FIRST AND FOURTEENTH
AMENDMENTS BOTH TO THE ORDERLY COMMUNICATION OF IDEAS, EDUCATIONAL AND
RELIGIOUS, TO PERSONS WILLING TO RECEIVE THEM, SEE CANTWELL V.
CONNECTICUT, SUPRA, AND TO THE PRACTICE OF RELIGION AND THE
SOLICITATION OF FUNDS IN ITS SUPPORT.  SCHNEIDER V. STATE, SUPRA. 

IN ITS POTENCY AS A PRIOR RESTRAINT ON PUBLICATION, THE FLAT LICENSE
TAX FALLS SHORT ONLY OF OUTRIGHT CENSORSHIP OR SUPPRESSION.  THE MORE
HUMBLE AND NEEDY THE CAUSE, THE MORE EFFECTIVE IS THE SUPPRESSION. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN IN
THIS OPINION. 

FN1  "SHOULD ANY SECTION, CONDITION, OR PROVISION OR ANY RATE OR
AMOUNT SCHEDULED AS AGAINST ANY PARTICULAR OCCUPATION EXHIBITED IN THE
FOREGOING SCHEDULE BE HELD VOID OR INVALID, SUCH INVALIDITY SHALL NOT
EFFECT ANY OTHER SECTION, RATE OR PROVISION OF THIS LICENSE SCHEDULE." 

MR. JUSTICE MURPHY, WITH WHOM THE CHIEF JUSTICE, MR. JUSTICE BLACK,
AND MR. JUSTICE DOUGLAS CONCUR, DISSENTING. 

WHEN A STATUTE IS CHALLENGED AS IMPINGING ON FREEDOM OF SPEECH,
FREEDOM OF THE PRESS, OR FREEDOM OF WORSHIP, THOSE HISTORIC PRIVILEGES
WHICH ARE SO ESSENTIAL TO OUR POLITICAL WELFARE AND SPIRITUAL PROGRESS,
IT IS THE DUTY OF THIS COURT TO SUBJECT SUCH LEGISLATION TO
EXAMINATION, IN THE LIGHT OF THE EVIDENCE ADDUCED, TO DETERMINE WHETHER
IT IS SO DRAWN AS NOT TO IMPAIR THE SUBSTANCE OF THOSE CHERISHED
FREEDOMS IN REACHING ITS OBJECTIVE.  ORDINANCES THAT MAY OPERATE TO
RESTRICT THE CIRCULATION OR DISSEMINATION OF IDEAS ON RELIGIOUS OR
OTHER SUBJECTS SHOULD BE FRAMED WITH FASTIDIOUS CARE AND PRECISE
LANGUAGE TO AVOID UNDUE ENCROACHMENT ON THESE FUNDAMENTAL LIBERTIES. 
AND THE PROTECTION OF THE CONSTITUTION MUST BE EXTENDED TO ALL, NOT
ONLY TO THOSE WHOSE VIEWS ACCORD WITH PREVAILING THOUGHT BUT ALSO TO
DISSIDENT MINORITIES WHO ENERGETICALLY SPREAD THEIR BELIEFS.  BEING
SATISFIED BY THE EVIDENCE THAT THE ORDINANCES IN THE CASES NOW BEFORE
US, AS CONSTRUED AND APPLIED IN THE STATE COURTS, IMPOSE A BURDEN ON
THE CIRCULATION AND DISCUSSION OF OPINION AND INFORMATION IN MATTERS OF
RELIGION, AND THEREFORE VIOLATE THE PETITIONERS'  FN1  RIGHTS TO
FREEDOM OF SPEECH, FREEDOM OF THE PRESS, AND FREEDOM OF WORSHIP IN
CONTRAVENTION OF THE FOURTEENTH AMENDMENT, I AM OBLIGED TO DISSENT FROM
THE OPINION OF THE COURT. 

IT IS NOT DISPUTED THAT PETITIONERS, JEHOVAH'S WITNESSES, WERE
ORDAINED MINISTERS PREACHING THE GOSPEL, AS THEY UNDERSTOOD IT, THROUGH
THE STREETS AND FROM HOUSE TO HOUSE, ORALLY AND BY PLAYING RELIGIOUS
RECORDS WITH THE CONSENT OF THE HOUSEHOLDER, AND BY DISTRIBUTING BOOKS
AND PAMPHLETS SETTING FORTH THE TENETS OF THEIR FAITH.  IT DOES NOT
APPEAR THAT THEIR MOTIVES WERE COMMERCIAL, BUT ONLY THAT THEY WERE
EVANGELIZING THEIR FAITH AS THEY SAW IT.    IN NO. 280 THE TRIAL COURT
EXCLUDED AS IRRELEVANT PETITIONER'S TESTIMONY THAT HE WAS AN ORDAINED
MINISTER AND THAT HIS ACTIVITIES ON THE STREETS OF OPELIKA WERE IN
FURTHERANCE OF HIS MINISTERIAL DUTIES.  THE TESTIMONY OF TEN CLERGYMEN
OF OPELIKA THAT THEY DISTRIBUTED FREE RELIGIOUS LITERATURE IN THEIR
CHURCHES, THE COST OF WHICH WAS DEFRAYED BY VOLUNTARY CONTRIBUTION, AND
THAT THEY HAD NEVER BEEN FORCED TO PAY ANY LICENSE FEE, WAS ALSO
EXCLUDED.  IT IS ADMITTED HERE THAT PETITIONER WAS A JEHOVAH'S WITNESS
AND CONSIDERED HIMSELF AN ORDAINED MINISTER. 

THE SUPREME COURT OF ARIZONA STATED IN NO. 966 THAT APPELLANT WAS "A
REGULARLY ORDAINED MINISTER OF THE DENOMINATION COMMONLY KNOWN AS
JEHOVAH'S WITNESSES  ...  GOING FROM HOUSE TO HOUSE IN THE CITY OF CASA
GRANDE PREACHING THE GOSPEL, AS HE UNDERSTOOD IT, BY MEANS OF HIS
SPOKEN WORD, BY PLAYING VARIOUS RELIGIOUS RECORDS ON A PHONOGRAPH, WITH
THE APPROVAL OF THE HOUSEHOLDER, AND BY DISTRIBUTING PRINTED BOOKS,
PAMPHLETS AND TRACTS WHICH SET FORTH HIS VIEWS AS TO THE MEANING OF THE
BIBLE.  THE METHOD OF DISTRIBUTION OF THESE PRINTED BOOKS, PAMPHLETS
AND TRACTS WAS AS FOLLOWS:  HE FIRST OFFERED THEM FOR SALE AT VARIOUS
PRICES RANGING FROM FIVE TO TWENTY-FIVE CENTS EACH.  IF THE HOUSEHOLDER
DID NOT DESIRE TO PURCHASE ANY OF THEM HE THEN LEFT A SMALL LEAFLET
SUMMARIZING SOME OF THE DOCTRINES WHICH HE PREACHED."  118 P.2D 97,
98. 

THE FACTS WERE STIPULATED IN NO. 314.  EACH PETITIONER "CLAIMS TO BE
AN ORDAINED MINISTER OF THE GOSPEL  ... THEY DO NOT ENGAGE IN THIS WORK
FOR ANY SELFISH REASON BUT BECAUSE THEY FEEL CALLED TO PUBLISH THE NEWS
AND PREACH THE GOSPEL OF THE KINGDOM TO ALL THE WORLD AS A WITNESS
BEFORE THE END COMES.  ...  THEY BELIEVE THAT THE ONLY EFFECTIVE WAY TO
PREACH IS TO GO FROM HOUSE TO HOUSE AND MAKE PERSONAL CONTACT WITH THE
PEOPLE AND DISTRIBUTE TO THEM BOOKS AND PAMPHLETS SETTING FORTH THEIR
VIEWS ON CHRISTIANITY."  PETITIONERS "WERE GOING FROM HOUSE TO HOUSE IN
THE RESIDENTIAL SECTION WITHIN THE CITY OF FORT SMITH  ...  PRESENTED
TO THE RESIDENTS OF THESE HOUSES VARIOUS BOOKLETS, LEAFLETS AND
PERIODICALS SETTING FORTH THEIR VIEWS OF CHRISTIANITY HELD BY JEHOVAH'S
WITNESSES."  THEY SOLICITED "A CONTRIBUTION OF TWENTY-FIVE CENTS FOR
EACH BOOK," BUT "THESE BOOKS IN SOME INSTANCES ARE DISTRIBUTED FREE
WHEN THE PEOPLE WISHING THEM ARE UNABLE TO CONTRIBUTE."  151 S.W.2D
1000, 1001. 

THERE IS NO SUGGESTION IN ANY OF THESE THREE CASES THAT PETITIONERS
WERE PERPETRATING A FRAUD, THAT THEY WERE DEMEANING THEMSELVES IN AN
OBNOXIOUS MANNER, THAT THEIR ACTIVITIES CREATED ANY PUBLIC DISTURBANCE
OR INCONVENIENCE, THAT PRIVATE RIGHTS WERE CONTRAVENED, OR THAT THE
LITERATURE DISTRIBUTED WAS OFFENSIVE TO MORALS OR CREATED ANY "CLEAR
AND PRESENT DANGER" TO ORGANIZED SOCIETY. 

THE ORDINANCE IN EACH CASE IS SOUGHT TO BE SUSTAINED AS A SYSTEM OF
NON-DISCRIMINATORY TAXATION OF VARIOUS BUSINESSES, PROFESSIONS, AND
VOCATIONS, INCLUDING THE DISTRIBUTION OF BOOKS FOR WHICH CONTRIBUTIONS
ARE ASKED, FOR THE SOLE PURPOSE OF RAISING REVENUE.  FN2  ANY
INCLINATION TO TAKE THE POSITION THAT PETITIONERS, WHO WERE
PROSELYTIZING BY DISTRIBUTING INFORMATIVE LITERATURE SETTING FORTH
THEIR RELIGIOUS TENETS, AND WHOSE ACTIVITIES WERE WHOLLY UNRELATED TO
ANY COMMERCIAL PURPOSES, WERE NOT WITHIN THE PURVIEW OF THESE
OCCUPATIONAL TAX ORDINANCES,  FN3  IS FORECLOSED BY THE DECISIONS OF
THE STATE COURTS BELOW TO THE CONTRARY.  AS SO CONSTRUED, THE
ORDINANCES, IN EFFECT, IMPOSE DIRECT TAXES ON THE DISSEMINATION OF
IDEAS AND THE DISTRIBUTION OF LITERATURE, RELATING TO AND DEALING WITH
RELIGIOUS MATTERS, FOR WHICH A CONTRIBUTION IS ASKED IN AN ATTEMPT TO
GAIN CONVERTS, BECAUSE THOSE WERE PETITIONERS' ACTIVITIES.  SUCH TAXES
HAVE BEEN HELD TO VIOLATE THE FOURTEENTH AMENDMENT, MCCONKEY V.
FREDERICKSBURG, 179 VA. 556, 19 S.E.2D 682; STATE V. GREAVES, 112 VT.
222, 22 A.2D 497; BLUE ISLAND V. KOZUL, 379 ILL. 511, 41 N.E.2D 515;
AND THAT SHOULD BE THE HOLDING HERE.  FN4 

FREEDOM OF SPEECH AND FREEDOM OF THE PRESS. 

IN VIEW OF THE RECENT DECISIONS OF THIS COURT STRIKING DOWN ACTS
WHICH IMPAIR FREEDOM OF SPEECH AND FREEDOM OF THE PRESS NO ELABORATION
ON THAT SUBJECT IS NOW NECESSARY.  WE HAVE "UNEQUIVOCALLY HELD THAT THE
STREETS ARE PROPER PLACES FOR THE EXERCISE OF THE FREEDOM OF
COMMUNICATING INFORMATION AND DISSEMINATING OPINION AND THAT, THOUGH
THE STATES AND MUNICIPALITIES MAY APPROPRIATELY REGULATE THE PRIVILEGE
IN THE PUBLIC INTEREST, THEY MAY NOT UNDULY BURDEN OR PROSCRIBE ITS
EMPLOYMENT IN THESE PUBLIC THOROUGHFARES."  VALENTINE V. CHRESTENSEN,
ANTE, 52, 54.  AND AS THE DISTRIBUTION OF PAMPHLETS TO SPREAD
INFORMATION AND OPINION ON THE STREETS AND FROM HOUSE TO HOUSE FOR NON
COMMERCIAL PURPOSES IS PROTECTED FROM THE PRIOR RESTRAINT OF
CENSORSHIP, LOVELL V. GRIFFIN, 303 U.S. 444; SCHNEIDER V. IRVINGTON,
308 U.S. 147, SO SHOULD IT BE PROTECTED FROM THE BURDEN OF TAXATION. 

THE OPINION OF THE COURT HOLDS THAT THE AMOUNT OF THE TAX IS NOT
BEFORE US AND THAT A "NONDISCRIMINATORY LICENSE FEE, PRESUMABLY
APPROPRIATE IN AMOUNT, MAY BE IMPOSED UPON THESE ACTIVITIES."  BOTH OF
THESE HOLDINGS MUST BE REJECTED. 

WHERE REGULATION OR INFRINGEMENT OF THE LIBERTY OF DISCUSSION AND THE
DISSEMINATION OF INFORMATION AND OPINION ARE INVOLVED, THERE ARE
SPECIAL REASONS FOR TESTING THE CHALLENGED STATUTE ON ITS FACE. 
THORNHILL V. ALABAMA, 310 U.S. 88, 96-98, AND SEE LOVELL V. GRIFFIN,
303 U.S. 444, 452; DRIVERS UNION V. MEADOWMOOR CO., 312 U.S. 287, 297. 
THAT SHOULD BE DONE HERE.  FN5 

CONSIDERATION OF THE TAXES LEADS TO BUT ONE CONCLUSION - THAT THEY
PROHIBIT OR SERIOUSLY HINDER THE DISTRIBUTION OF PETITIONERS' RELIGIOUS
LITERATURE.  THE OPINION OF THE COURT ADMITS THAT ALL THE TAXES ARE
"SUBSTANTIAL."  THE $25 QUARTERLY TAX OF CASA GRANDE APPROACHES
PROHIBITION.  THE 1940 POPULATION OF THAT TOWN WAS 1,545.  WITH SO FEW
POTENTIAL PURCHASERS IT WOULD TAKE A GIFTED EVANGELIST, INDEED, IN VIEW
OF THE ANTAGONISM GENERALLY ENCOUNTERED BY JEHOVAH'S WITNESSES, TO SELL
ENOUGH TRACTS AT PRICES RANGING FROM FIVE TO TWENTY-FIVE CENTS TO GROSS
ENOUGH TO PAY THE TAX.  CF. MCCONKEY V. FREDERICKSBURG, 179 VA. 556, 19
S.E.2D 682.  WHILE THE AMOUNT IS ACTUALLY LOWER IN OPELIKA,  FN6  AND
MAY BE LOWER IN FORT SMITH IN THAT IT IS POSSIBLE TO GET A LICENSE FOR
A SHORT PERIOD,  FN7  AND WHILE THE CIRCLE OF PURCHASERS IS WIDER IN
THOSE TOWNS,  FN8  THESE EXACTIONS ALSO PLACE A HEAVY HAND ON
PETITIONERS' ACTIVITIES.  THE PETITIONERS SHOULD NOT BE SUBJECTED TO
SUCH TRIBUTE. 

BUT WHATEVER THE AMOUNT, THE TAXES ARE IN REALITY TAXES UPON THE
DISSEMINATION OF RELIGIOUS IDEAS, A DISSEMINATION CARRIED ON BY THE
DISTRIBUTION OF RELIGIOUS LITERATURE FOR RELIGIOUS REASONS ALONE AND
NOT FOR PERSONAL PROFIT.  AS SUCH THEY PLACE A BURDEN ON FREEDOM OF
SPEECH, FREEDOM OF THE PRESS, AND THE EXERCISE OF RELIGION EVEN IF THE
QUESTION OF AMOUNT IS LAID ASIDE.  LIBERTY OF CIRCULATION IS THE VERY
LIFE BLOOD OF A FREE PRESS, CF. LOVELL V. GRIFFIN, 303 U.S. 444, 452,
AND TAXES ON THE CIRCULATION OF IDEAS HAVE A LONG HISTORY OF MISUSE
AGAINST FREEDOM OF THOUGHT.  FN9  SEE GROSJEAN V. AMERICAN PRESS CO.,
297 U.S. 233, 245-249.  AND TAXES ON CIRCULATION SOLELY FOR THE PURPOSE
OF REVENUE WERE SUCCESSFULLY RESISTED, PRIOR TO THE ADOPTION OF THE
FIRST AMENDMENT, AS INTERFERENCES WITH FREEDOM OF THE PRESS.  FN10
SURELY ALL THIS WAS FAMILIAR KNOWLEDGE TO THE FRAMERS OF THE BILL OF
RIGHTS.  WE NEED NOT SHUT OUR EYES TO THE POSSIBILITY THAT USE MAY
AGAIN BE MADE OF SUCH TAXES, EITHER BY DISCRIMINATION IN ENFORCEMENT OR
OTHERWISE, TO SUPPRESS THE UNPALATABLE VIEWS OF MILITANT MINORITIES
SUCH AS JEHOVAH'S WITNESSES.  SEE MCCONKEY V. FREDERICKSBURG, 179 VA.
556, 19 S.E.2D 682.  AS THE EVIDENCE EXCLUDED IN NO. 280 TENDED TO
SHOW, NO ATTEMPT WAS THERE MADE TO APPLY THE ORDINANCE TO MINISTERS
FUNCTIONING IN A MORE ORTHODOX MANNER THAN PETITIONER. 

OTHER OBJECTIONABLE FEATURES IN ADDITION TO THE FACTOR OF HISTORICAL
MISUSE EXIST.  THERE IS THE UNFAIRNESS PRESENT IN ANY SYSTEM OF FLAT
FEE TAXATION, BEARING NO RELATION TO THE ABILITY TO PAY.  AND THERE IS
THE CUMULATIVE BURDEN OF MANY SUCH TAXES THROUGHOUT THE MUNICIPALITIES
OF THE LAND, AS THE NUMBER OF RECENT CASES INVOLVING SUCH ORDINANCES
ABUNDANTLY DEMONSTRATES.  FN11  THE ACTIVITIES OF JEHOVAH'S WITNESSES
ARE WIDESPREAD, AND THE AGGREGATE EFFECT OF NUMEROUS EXACTIONS, NO
MATTER HOW SMALL, CAN CONCEIVABLY FORCE THEM TO CHOOSE BETWEEN
REFRAINING FROM ATTEMPTING TO RECOUP PART OF THE COST OF THEIR
LITERATURE, OR ELSE PAYING OUT LARGE SUMS IN TAXES.  EITHER CHOICE
HINDERS AND MAY EVEN POSSIBLY PUT AN END TO THEIR ACTIVITIES.  THERE IS
NO BASIS, OTHER THAN A REFUSAL TO CONSIDER THE CHARACTERISTICS OF TAXES
SUCH AS THESE, FOR ANY ASSUMPTION THAT SUCH TAXES ARE "COMMENSURATE
WITH THE ACTIVITIES LICENSED."  NOR IS THERE ANY ASSURANCE THAT "A
CORRELATIVELY ENLARGED FIELD OF DISTRIBUTION" WILL INSURE SUFFICIENT
PROCEEDS EVEN TO MEET SUCH EXACTIONS, LET ALONE LEAVING ANY RESIDUE FOR
THE CONTINUATION OF PETITIONERS' EVANGELIZATION. 

FREEDOM OF SPEECH, FREEDOM OF THE PRESS, AND FREEDOM OF RELIGION ALL
HAVE A DOUBLE ASPECT - FREEDOM OF THOUGHT AND FREEDOM OF ACTION. 
FREEDOM TO THINK IS ABSOLUTE OF ITS OWN NATURE; THE MOST TYRANNICAL
GOVERNMENT IS POWERLESS TO CONTROL THE INWARD WORKINGS OF THE MIND. 
BUT EVEN AN AGGRESSIVE MIND IS OF NO MISSIONARY VALUE UNLESS THERE IS
FREEDOM OF ACTION, FREEDOM TO COMMUNICATE ITS MESSAGE TO OTHERS BY
SPEECH AND WRITING.  SINCE IN ANY FORM OF ACTION THERE IS A POSSIBILITY
OF COLLISION WITH THE RIGHTS OF OTHERS, THERE CAN BE NO DOUBT THAT THIS
FREEDOM TO ACT IS NOT ABSOLUTE BUT QUALIFIED, BEING SUBJECT TO
REGULATION IN THE PUBLIC INTEREST WHICH DOES NOT UNDULY INFRINGE THE
RIGHT.  HOWEVER, THERE IS NO ASSERTION HERE THAT THE ORDINANCES WERE
REGULATORY, BUT IF THERE WERE SUCH A CLAIM, THEY STILL SHOULD NOT BE
SUSTAINED.  NO ABUSES JUSTIFYING REGULATION ARE ADVANCED AND THE
ORDINANCES ARE NOT NARROWLY AND PRECISELY DRAWN TO DEAL WITH ACTUAL, OR
EVEN HYPOTHETICAL, EVILS, WHILE AT THE SAME TIME PRESERVING THE
SUBSTANCE OF THE RIGHT.  CF. THORNHILL V. ALABAMA, 310 U.S. 88, 105;
CANTWELL V. CONNECTICUT, 310 U.S. 296, 311.  THEY IMPOSE A TAX ON THE
DISSEMINATION OF INFORMATION AND OPINION ANYWHERE WITHIN THE CITY
LIMITS, WHETHER ON THE STREETS OR FROM HOUSE TO HOUSE.  "AS WE HAVE
SAID, THE STREETS ARE NATURAL AND PROPER PLACES FOR THE DISSEMINATION
OF INFORMATION AND OPINION; AND ONE IS NOT TO HAVE THE EXERCISE OF HIS
LIBERTY OF EXPRESSION IN APPROPRIATE PLACES ABRIDGED ON THE PLEA THAT
IT MAY BE EXERCISED ELSEWHERE."  SCHNEIDER V. IRVINGTON, 308 U.S. 147,
163.  THESE TAXES ABRIDGE THAT LIBERTY. 

IT MATTERS NOT THAT PETITIONERS ASKED CONTRIBUTIONS FOR THEIR
LITERATURE.  FREEDOM OF SPEECH AND FREEDOM OF THE PRESS CANNOT AND MUST
NOT MEAN FREEDOM ONLY FOR THOSE WHO CAN DISTRIBUTE THEIR BROADSIDES
WITHOUT CHARGE.  THERE MAY BE OTHERS WITH MESSAGES MORE VITAL BUT
PURSES LESS FULL, WHO MUST SEEK SOME REIMBURSEMENT FOR THEIR OUTLAY OR
ELSE FOREGO PASSING ON THEIR IDEAS.  THE PAMPHLET, AN HISTORIC WEAPON
AGAINST OPPRESSION,  FN12  LOVELL V. GRIFFIN, 303 U.S. 444, 452, IS
TODAY THE CONVENIENT VEHICLE OF THOSE WITH LIMITED RESOURCES BECAUSE
NEWSPAPER SPACE AND RADIO TIME ARE EXPENSIVE AND THE COST OF
ESTABLISHING SUCH ENTERPRISES GREAT.  IF FREEDOM OF SPEECH AND FREEDOM
OF THE PRESS ARE TO HAVE ANY CONCRETE MEANING, PEOPLE SEEKING TO
DISTRIBUTE INFORMATION AND OPINION, TO THE END ONLY THAT OTHERS SHALL
HAVE THE BENEFIT THEREOF, SHOULD NOT BE TAXED FOR CIRCULATING SUCH
MATTER.  IT IS UNNECESSARY TO CONSIDER NOW THE VALIDITY OF SUCH TAXES
ON COMMERCIAL ENTERPRISES ENGAGED IN THE DISSEMINATION OF IDEAS.  CF.
VALENTINE V. CHRESTENSEN, ANTE, P. 52; GIRAGI V. MOORE, 301 U.S. 670. 
PETITIONERS WERE NOT ENGAGED IN A TRAFFIC FOR PROFIT.  WHILE THE COURTS
BELOW HELD THEIR ACTIVITIES WERE COVERED BY THE ORDINANCES, IT IS CLEAR
THAT THEY WERE SEEKING ONLY TO FURTHER THEIR RELIGIOUS CONVICTIONS BY
PREACHING THE GOSPEL TO OTHERS. 

THE EXERCISE, WITHOUT COMMERCIAL MOTIVES, OF FREEDOM OF SPEECH,
FREEDOM OF THE PRESS, OR FREEDOM OF WORSHIP ARE NOT PROPER SOURCES OF
TAXATION FOR GENERAL REVENUE PURPOSES.  IN DEALING WITH A PERMISSIBLE
REGULATION OF THESE FREEDOMS AND THE FEE CHARGED IN CONNECTION
THEREWITH, WE EMPHASIZED THE FACT THAT THE FEE "WAS NOT A REVENUE TAX,
BUT ONE TO MEET THE EXPENSE INCIDENT TO THE ADMINISTRATION OF THE ACT
AND TO THE MAINTENANCE OF PUBLIC ORDER," AND STATED ONLY THAT, "THERE
IS NOTHING CONTRARY TO THE CONSTITUTION IN THE CHARGE OF A FEE LIMITED
TO THE PURPOSE STATED."  COX V. NEW HAMPSHIRE, 312 U.S. 569, 577.  THE
TAXES HERE INVOLVED ARE OSTENSIBLY FOR REVENUE PURPOSES; THEY ARE NOT
REGULATORY FEES.  RESPONDENTS DO NOT SHOW THAT THE INSTANT ACTIVITIES
OF JEHOVAH'S WITNESSES CREATE SPECIAL PROBLEMS CAUSING A DRAIN ON THE
MUNICIPAL COFFERS, OR THAT THESE TAXES ARE COMMENSURATE WITH ANY
EXPENSES ENTAILED BY THE PRESENCE OF THE WITNESSES.  IN THE ABSENCE OF
SUCH A SHOWING, I THINK NO TAX WHATEVER CAN BE LEVIED ON PETITIONERS'
ACTIVITIES IN DISTRIBUTING THEIR LITERATURE OR DISSEMINATING THEIR
IDEAS.  IF THE GUARANTIES OF FREEDOM OF SPEECH AND FREEDOM OF THE PRESS
ARE TO BE PRESERVED, MUNICIPALITIES SHOULD NOT BE FREE TO RAISE GENERAL
REVENUE BY TAXES ON THE CIRCULATION OF INFORMATION AND OPINION IN NON
COMMERCIAL CAUSES; OTHER SOURCES CAN BE FOUND, THE TAXATION OF WHICH
WILL NOT CHOKE OFF IDEAS.  TAXES SUCH AS THE INSTANT ONES VIOLATE
PETITIONERS' RIGHT TO FREEDOM OF SPEECH AND FREEDOM OF THE PRESS,
PROTECTED AGAINST STATE INVASION BY THE FOURTEENTH AMENDMENT. 
FREEDOM OF RELIGION. 

UNDER THE FOREGOING DISCUSSION OF FREEDOM OF SPEECH AND FREEDOM OF
THE PRESS, ANY PERSON WOULD BE EXEMPT FROM TAXATION UPON THE ACT OF
DISTRIBUTING INFORMATION OR OPINION OF ANY KIND, WHETHER POLITICAL,
SCIENTIFIC, OR RELIGIOUS IN CHARACTER, WHEN DONE SOLELY IN AN EFFORT TO
SPREAD KNOWLEDGE AND IDEAS, WITH NO THOUGHT OF COMMERCIAL GAIN.  BUT
THERE IS ANOTHER, AND PERHAPS MORE PRECIOUS, REASON WHY THESE
ORDINANCES CANNOT CONSTITUTIONALLY APPLY TO PETITIONERS.  IMPORTANT AS
FREE SPEECH AND A FREE PRESS ARE TO A FREE GOVERNMENT AND A FREE
CITIZENRY, THERE IS A RIGHT EVEN MORE DEAR TO MANY INDIVIDUALS - THE
RIGHT TO WORSHIP THEIR MAKER ACCORDING TO THEIR NEEDS AND THE DICTATES
OF THEIR SOULS AND TO CARRY THEIR MESSAGE OR THEIR GOSPEL TO EVERY
LIVING CREATURE.  THESE ORDINANCES INFRINGE THAT RIGHT, WHICH IS ALSO
PROTECTED BY THE FOURTEENTH AMENDMENT.  CANTWELL V. CONNECTICUT, 310
U.S. 296. 

PETITIONERS WERE ITINERANT MINISTERS GOING THROUGH THE STREETS AND
FROM HOUSE TO HOUSE IN DIFFERENT COMMUNITIES, PREACHING THE GOSPEL BY
DISTRIBUTING BOOKLETS AND PAMPHLETS SETTING FORTH THEIR VIEWS OF THE
BIBLE AND THE TENETS OF THEIR FAITH.  WHILE PERHAPS NOT SO ORTHODOX AS
THE ORAL SERMON, THE USE OF RELIGIOUS BOOKS IS AN OLD, RECOGNIZED AND
EFFECTIVE MODE OF WORSHIP AND MEANS OF PROSELYTIZING.  FN13  FOR THIS,
PETITIONERS WERE TAXED.  THE MIND REBELS AT THE THOUGHT THAT A MINISTER
OF ANY OF THE OLD ESTABLISHED CHURCHES COULD BE MADE TO PAY FEES TO THE
COMMUNITY BEFORE ENTERING THE PULPIT.  THESE TAXES ON PETITIONERS'
EFFORTS TO PREACH THE "NEWS OF THE KINGDOM" SHOULD BE STRUCK DOWN
BECAUSE THEY BURDEN PETITIONERS' RIGHT TO WORSHIP THE DEITY IN THEIR
OWN FASHION AND TO SPREAD THE GOSPEL AS THEY UNDERSTAND IT.  THERE IS
HERE NO CONTENTION THAT THEIR MANNER OF WORSHIP GIVES RISE TO CONDUCT
WHICH CALLS FOR REGULATION, AND THESE ORDINANCES ARE NOT AIMED AT ANY
SUCH PRACTICES. 

ONE NEED ONLY READ THE DECISIONS OF THIS AND OTHER COURTS IN THE PAST
FEW YEARS TO SEE THE UNPOPULARITY OF JEHOVAH'S WITNESSES AND THE
DIFFICULTIES PUT IN THEIR PATH BECAUSE OF THEIR RELIGIOUS BELIEFS.  AN
ARRESTING PARALLEL EXISTS BETWEEN THE TROUBLES OF JEHOVAH'S WITNESSES
AND THE STRUGGLES OF VARIOUS DISSENTIENT GROUPS IN THE AMERICAN
COLONIES FOR RELIGIOUS LIBERTY WHICH CULMINATED IN THE VIRGINIA STATUTE
FOR RELIGIOUS FREEDOM,  FN14  THE NORTHWEST ORDINANCE OF 1787, FN15
AND THE FIRST AMENDMENT.  IN MOST OF THE COLONIES THERE WAS AN
ESTABLISHED CHURCH, AND THE WAY OF THE DISSENTER WAS HARD.  ALL SECTS,
INCLUDING QUAKER, METHODIST, BAPTIST, EPISCOPALIAN, SEPARATIST,
ROGERINE, AND CATHOLIC, SUFFERED.  FN16  MANY OF THE NON-CONFORMING
MINISTERS WERE ITINERANTS, AND MEASURES WERE ADOPTED TO CURB THEIR
UNWANTED ACTIVITIES.  THE BOOKS OF CERTAIN DENOMINATIONS WERE BANNED. 
FN17  VIRGINIA AND CONNECTICUT HAD BURDENSOME LICENSING REQUIREMENTS. 
FN18  CF. LOVELL V. GRIFFIN, 303 U.S. 444; SCHNEIDER V. IRVINGTON, 308
U.S. 147; CANTWELL V. CONNECTICUT, 310 U.S. 296.  OTHER STATES REQUIRED
OATHS BEFORE ONE COULD PREACH WHICH MANY MINISTERS COULD NOT
CONSCIENTIOUSLY TAKE.  FN19  CF. REID V. BROOKVILLE, 39 F.SUPP.  30;
KENNEDY V. MOSCOW, 39 F.SUPP.  26.  RESEARCH REVEALS NO ATTEMPT TO
CONTROL OR PERSECUTE BY THE MORE SUBTLE MEANS OF TAXING THE FUNCTION OF
PREACHING, OR EVEN ANY ATTEMPT TO TAP IT AS A SOURCE OF REVENUE.  FN20 

BY APPLYING THESE OCCUPATIONAL TAXES TO PETITIONERS' NON-COMMERCIAL
ACTIVITIES, RESPONDENTS NOW TAX SINCERE EFFORTS TO SPREAD RELIGIOUS
BELIEFS, AND A HEAVY BURDEN FALLS UPON A NEW SET OF ITINERANT ZEALOTS,
THE WITNESSES.  THAT BURDEN SHOULD NOT BE ALLOWED TO STAND, ESPECIALLY
IF, AS THE EXCLUDED TESTIMONY IN NO. 280 INDICATES, THE ACCEPTED
CLERGYMEN OF THE TOWN CAN TAKE TO THEIR PULPITS AND DISTRIBUTE THEIR
LITERATURE WITHOUT THE IMPACT OF TAXATION.  LIBERTY OF CONSCIENCE IS
TOO FULL OF MEANING FOR THE INDIVIDUALS IN THIS NATION TO PERMIT
TAXATION TO PROHIBIT OR SUBSTANTIALLY IMPAIR THE SPREAD OF RELIGIOUS
IDEAS, EVEN THOUGH THEY ARE CONTROVERSIAL AND RUN COUNTER TO THE
ESTABLISHED NOTIONS OF A COMMUNITY.  IF THIS COURT IS TO ERR IN
EVALUATING CLAIMS THAT FREEDOM OF SPEECH, FREEDOM OF THE PRESS, AND
FREEDOM OF RELIGION HAVE BEEN INVADED, FAR BETTER THAT IT ERR IN BEING
OVERPROTECTIVE OF THESE PRECIOUS RIGHTS. 

FN1  FOR CONVENIENCE, APPELLANT IN NO. 966, PETITIONERS IN NO. 314,
AND PETITIONER IN NO. 280 ARE HEREIN COLLECTIVELY REFERRED TO AS
"PETITIONERS." 

FN2  RESPONDENT IN NO. 280 CONTENDS THAT THE QUESTION PRESENTED "IN
NO RESPECT RELATES TO REGULATORY OR POLICE POWER ACTION OF A MUNICIPAL
GOVERNMENT, BUT IS CONCERNED ONLY WITH THE MUNICIPALITY'S RIGHT TO LEVY
TAXES." 

THE SUPREME COURT OF ARIZONA STATED IN NO. 966 THAT "THE ORDINANCE ON
ITS FACE IS THE ORDINARY OCCUPATIONAL LICENSE TAX ORDINANCE." 

FN3  SEVERAL COURTS HAVE TAKEN THIS POSITION.  STATE EX REL. SEMANSKY
V. STARK, 196 LA. 307, 199 SO. 129; PEOPLE V. FINKELSTEIN, 170 N.Y.
MISC. 188, 9 N.Y.S.2D 941; THOMAS V. ATLANTA, 59 GA. APP. 520, 1 S.E.2D
598; STATE V. MEREDITH, 197 S.C. 351, 15 S.E.2D 678; STATE EX REL.
HOUGH V. WOODRUFF, 147 FLA. 299, 2 SO.2D 577; CINCINNATI V. MOSIER, 61
OHIO APP. 81, 22 N.E.2D 418.  COMPARE, GREGG V. SMITH, 8 L.R.Q.B. (1872
3), P. 302; DUNCAN V. GAIRNS, 27 CANADIAN CR. CASES 440; BUT SEE REX V.
STEWART, 53 CANADIAN CR. CASES 24. 

FN4  AND SEE RUTLEDGE, J., DISSENTING IN BUSEY V. DISTRICT OF
COLUMBIA, 129 F.2D 24, DECIDED APRIL 15, 1942. 

FN5  WHEN THE OPELIKA ORDINANCE IS CONSIDERED ON ITS FACE, THERE IS
AN ADDITIONAL REASON FOR ITS INVALIDITY.  THE UNCONTROLLED POWER OF
REVOCATION LODGED WITH THE LOCAL AUTHORITIES IS BUT THE CONVERSE OF THE
SYSTEM OF PRIOR LICENSING STRUCK DOWN IN LOVELL V. GRIFFIN, 303 U.S.
444.  HERE, AS THERE, THE PERVASIVE THREAT OF CENSORSHIP INHERENT IN
SUCH A POWER VITIATES THE ORDINANCE. 

FN6  $5 OR $10, DEPENDING UPON WHICH SECTION OF THE ORDINANCE IS HELD
TO APPLY. 

FN7  $2.50 PER DAY, $10 PER WEEK, AND $25 PER MONTH. 

FN8  THE 1940 POPULATION OF FORT SMITH WAS 36,584 AND THAT OF
OPELIKA, 8,487. 

FN9  THE ENGLISH STAMP ACT OF 1712, 10 ANNE, C. 19, PUT A TAX ON
NEWSPAPERS AND PAMPHLETS TO CHECK WHAT SEEMED TO THE GOVERNMENT TO BE
"FALSE AND SCANDALOUS LIBELS" AND "THE MOST HORRID BLASPHEMIES AGAINST
GOD AND RELIGION."  THIS AND SUBSEQUENT ENACTMENTS LED TO A LONG
STRUGGLE IN ENGLAND FOR THE REPEAL OF THESE "TAXES ON KNOWLEDGE" AND
THE RECOGNITION OF THE FREEDOM OF THE PRESS.  SEE COLLETT, HISTORY OF
THE TAXES ON KNOWLEDGE (1899); PLACE, TAXES ON KNOWLEDGE (1831). 

FN10  STAMP TAXES FOR PURELY REVENUE PURPOSES WERE SUCCESSFULLY
RESISTED IN MASSACHUSETTS IN 1757 AND AGAIN IN 1785 ON THE GROUND THAT
THEY INTERFERED WITH FREEDOM OF THE PRESS.  SEE DUNIWAY, FREEDOM OF THE
PRESS IN MASSACHUSETTS (1906), PP. 119-120, 136-137; THOMAS, HISTORY OF
PRINTING IN AMERICA (1810), VOL. 2, PP. 267-268.  THE PRESS ALSO
VIGOROUSLY OPPOSED THE STAMP ACT OF 1765, 5 GEO. III, C. 12, WHICH WAS
ALSO A REVENUE MEASURE.  SEE DUNIWAY, OP. CIT., P. 124; THOMAS, OP.
CIT., PP. 189, 297, 322, 329, 350; VAN TYNE, CAUSES OF THE WAR OF
INDEPENDENCE (1922), P. 160; 15 SCOTTISH HISTORICAL REVIEW 322, 326. 

FN11  IN ADDITION TO THE INSTANT CASES, SEE CINCINNATI V. MOSIER, 61
OHIO APP. 81, 22 N.E.2D 418; STATE V. MEREDITH, 197 S.C. 351, 15 S.E.2D
678; THOMAS V. ATLANTA, 59 GA. APP. 520, 1 S.E.2D 598; COMMONWEALTH V.
REID, 144 PA. SUPER.  569, 20 A.2D 841; PEOPLE V. BANKS, 168 N.Y. MISC.
515, 6 N.Y.S.2D 41; COOK V. HARRISON, 180 ARK. 546, 21 S.W.2D 966;
STATE V. GREAVES, 112 VT. 222, 22 A.2D 497; BUSEY V. DISTRICT OF
COLUMBIA, 129 F.2D 24; MCCONKEY V. FREDERICKSBURG, 179 VA. 556, 19
S.E.2D 682; BLUE ISLAND V. KOZUL, 379 ILL. 511, 41 N.E.2D 515; STATE EX
REL. SEMANSKY V. STARK, 196 LA. 307, 199 SO. 129; PEOPLE V.
FINKELSTEIN, 170 N.Y. MISC. 188, 9 N.Y.S.2D 941; STATE EX REL. HOUGH V.
WOODRUFF, 147 FLA. 299, 2 SO.2D 577; BORCHERT V. RANGER, 42 F.SUPP. 
577. 

FN12  THE PAMPHLETS OF PAINE WERE NOT DISTRIBUTED GRATUITOUSLY.  SEE
INTRODUCTION TO PAINE'S POLITICAL WRITINGS (LONDON, 1909) PP. 3, 5. 

PAMPHLETS WERE EXTENSIVELY USED IN THE STRUGGLE FOR RELIGIOUS
FREEDOM.  SEE GREENE, THE DEVELOPMENT OF RELIGIOUS LIBERTY IN
CONNECTICUT (1905), PP. 282-283, 299-301. 

FN13  SEE, THE VOLUMES OF THE AMERICAN TRACT SOCIETY (1848), PP. 15
16, 24; HOME EVANGELIZATION (1850), PP. 70-74; LEE, HISTORY OF THE
METHODISTS (1810), P. 48. 

FN14  ADOPTED IN 1785 THROUGH THE EFFORTS OF JEFFERSON AND MADISON. 
VIRGINIA CODE OF 1930, SEC. 34. 

FN15  ARTICLE I. NO PERSON DEMEANING HIMSELF IN A PEACEABLE AND
ORDERLY MANNER SHALL EVER BE MOLESTED ON ACCOUNT OF HIS MODE OF WORSHIP
OR RELIGIOUS SENTIMENTS IN THE SAID TERRITORY. 

FN16  SEE WORKS OF THOMAS JEFFERSON (1861), VOL. VIII, PP. 398
402(NOTES ON VIRGINIA, QUERY XVII); COBB, RISE OF RELIGIOUS LIBERTY IN
AMERICA (1902); LITTLE, IMPRISONED PREACHERS AND RELIGIOUS LIBERTY IN
VIRGINIA (1938); LEE, HISTORY OF THE METHODISTS (1810), PP. 62-74;
GREENE, THE DEVELOPMENT OF RELIGIOUS LIBERTY IN CONNECTICUT (1905), PP.
158-180; GUILDAY, LIFE AND TIMES OF JOHN CARROLL (1922), VOL. 1,
CHAPTERS V AND VIII. 

FN17  JEFFERSON, OP. CIT.; GREENE, OP. CIT., P. 165. 

FN18  LITTLE, OP. CIT., PP. 11-13, 67-69; GREENE, OP. CIT., PP. 243,
262-263, 358; COBB, OP. CIT., PP. 98, 104, 358; WRIGHT, HAWKERS AND
WALKERS IN EARLY AMERICA (1927), CHAPTER X; BALDWIN, THE NEW ENGLAND
CLERGY AND THE REVOLUTION (1928), P. 59. 

FN19  THE JOURNAL OF THE REV. FRANCIS ASBURY (1821), VOL. 1, PP. 208,
253; LEE, OP. CIT., PP. 62-74. 

FN20  THE STAMP ACT OF 1765 EXEMPTED "ANY BOOKS CONTAINING ONLY
MATTERS OF DEVOTION OR PIETY."  MACDONALD, DOCUMENTARY SOURCE BOOK OF
AMERICAN HISTORY (3D ED., 1934), P. 128. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY: 

THE OPINION OF THE COURT SANCTIONS A DEVICE WHICH IN OUR OPINION
SUPPRESSES OR TENDS TO SUPPRESS THE FREE EXERCISE OF A RELIGION
PRACTICED BY A MINORITY GROUP.  THIS IS BUT ANOTHER STEP IN THE
DIRECTION WHICH MINERSVILLE SCHOOL DISTRICT V. GOBITIS, 310 U.S. 586,
TOOK AGAINST THE SAME RELIGIOUS MINORITY, AND IS A LOGICAL EXTENSION OF
THE PRINCIPLES UPON WHICH THAT DECISION RESTED.  SINCE WE JOINED IN THE
OPINION IN THE GOBITIS CASE, WE THINK THIS IS AN APPROPRIATE OCCASION
TO STATE THAT WE NOW BELIEVE THAT IT ALSO WAS WRONGLY DECIDED. 
CERTAINLY OUR DEMOCRATIC FORM OF GOVERNMENT, FUNCTIONING UNDER THE
HISTORIC BILL OF RIGHTS, HAS A HIGH RESPONSIBILITY TO ACCOMMODATE
ITSELF TO THE RELIGIOUS VIEWS OF MINORITIES, HOWEVER UNPOPULAR AND
UNORTHODOX THOSE VIEWS MAY BE.  THE FIRST AMENDMENT DOES NOT PUT THE
RIGHT FREELY TO EXERCISE RELIGION IN A SUBORDINATE POSITION.  WE FEAR,
HOWEVER, THAT THE OPINIONS IN THESE AND IN THE GOBITIS CASE DO EXACTLY
THAT. 
..END :





WALLING V. BELO CORP., 316 U.S. 624 


NO. 622.  ARGUED APRIL 6, 1942.  - DECIDED JUNE 8, 1942.  - 121 F.2D
207, AFFIRMED. 


1.  NOTHING IN THE FAIR LABOR STANDARDS ACT BARS AN EMPLOYER FROM
CONTRACTING WITH HIS EMPLOYEES TO PAY THEM THE SAME WAGES THAT THEY
RECEIVED PREVIOUSLY, SO LONG AS THE NEW RATE EQUALS OR EXCEEDS THE
MINIMUM REQUIRED BY THE ACT.  P. 630. 

2.  AN EMPLOYER WHOSE EMPLOYEES WORKED IRREGULAR HOURS AND WERE PAID
FIXED WEEKLY SALARIES, ENTERED INTO CONTRACTS WITH THEM, INDIVIDUALLY,
WHICH IN EACH CASE SPECIFIED A BASIC RATE OF PAY PER HOUR, FOR THE
MAXIMUM HOURS FIXED BY THE ACT, AND NOT LESS THAN ONE AND ONE-HALF
TIMES THAT RATE PER HOUR FOR OVERTIME, WITH A GUARANTY THAT THE
EMPLOYEE SHOULD RECEIVE EACH WEEK FOR REGULAR TIME AND OVERTIME NOT
LESS THAN AN AMOUNT SPECIFIED.  UNDER THIS PLAN, THE EMPLOYEE WORKED
MORE THAN THE STATUTORY MAXIMUM REGULAR HOURS BEFORE HE BECAME ENTITLED
TO ANY PAY IN ADDITION TO THE WEEKLY GUARANTY, BUT WHEN HE WORKED
ENOUGH HOURS TO EARN MORE THAN THE GUARANTY, THE SURPLUS TIME WAS PAID
FOR AT 150% OF THE "BASIC," OR CONTRACT, RATE.  HIS COMPENSATION
EQUALLED OR APPROXIMATED THAT WHICH HE WAS RECEIVING WHEN THE ACT WENT
INTO EFFECT, AND EXCEEDED THE MINIMA WHICH THE ACT PRESCRIBES.  HELD: 

(1)  THAT THE RATE PER HOUR SO AGREED ON WAS THE "REGULAR RATE"
WITHIN THE MEANING OF SEC. 7(A)(3) OF THE ACT WHERE IT PROVIDES THAT
FOR OVERTIME THE EMPLOYEE SHALL RECEIVE COMPENSATION "AT A RATE NOT
LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE FOR WHICH HE IS
EMPLOYED."  P. 630. 

(2)  THE INTENTION OF THE PARTIES TO FIX THE AMOUNT PER HOUR
SPECIFIED IN THE CONTRACT WAS CONSISTENT WITH THEIR INTENTION TO
GUARANTY THE SPECIFIED WEEKLY INCOME.  P. 631. 

(3)  THE ACT DOES NOT PROHIBIT PAYING MORE FOR OVERTIME THAN 150% OF
THE BASIC RATE.  P. 632. 

(4)  THE CONTRACT CONFORMS TO THE INTENTION OF THE ACT.  OVERNIGHT
MOTOR TRANSPORTATION CO. V. MISSEL, ANTE, P. 572, DISTINGUISHED.  P.
634. 

WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U.S. DEPARTMENT
OF LABOR, V. A.H. BELO CORPORATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 314 U.S. 601, TO REVEW THE AFFIRMANCE OF A DECREE OF THE
CIRCUIT COURT OF APPEALS WHICH DISMISSED A BILL BROUGHT BY THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, LABOR DEPARTMENT, TO
ENJOIN THE RESPONDENT FROM ADHERING TO A WAGE SYSTEM, BASED UPON
CONTRACTS WITH ITS EMPLOYEES, WHICH PLAINTIFF ATTACKED AS CONTRARY TO
WAGE AND HOUR PROVISIONS OF THE FAIR LABOR STANDARDS ACT.  IN THE
DISTRICT COURT THIS CASE WAS TRIED WITH ANOTHER IN WHICH THE PRESENT
RESPONDENT OBTAINED A DECLARATORY JUDGMENT AGAINST CERTAIN OF ITS
EMPLOYEES.  SEE 35 F.SUPP.  430, 36 F.SUPP.  907. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING BY THE ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION OF THE DEPARTMENT OF LABOR TO RESTRAIN THE RESPONDENT
CORPORATION FROM ALLEGED VIOLATION OF THE FAIR LABOR STANDARDS ACT. 
FN1  THE ADMINISTRATOR SOUGHT TO PREVENT THE USE BY RESPONDENT, UNDER
CERTAIN CONTRACTS WITH ITS EMPLOYEES, OF WAGE AGREEMENTS DEEMED BY THE
ADMINISTRATOR VIOLATIVE OF THE TIME AND A HALF FOR OVERTIME PROVISIONS
OF SEC. 7(A)  FN2  AS IMPLEMENTED BY SECS. 15(A)(1) AND (2).  FN3 

THE RESPONDENT, A TEXAS CORPORATION, IS THE PUBLISHER OF THE DALLAS
MORNING NEWS AND OTHER PERIODICALS, AND THE OWNER AND OPERATOR OF RADIO
STATION WFAA.  IT HAS SOME 600 EMPLOYEES.  THOSE IN THE MECHANICAL
DEPARTMENTS WORK UNDER A COLLECTIVE BARGAINING AGREEMENT AND ARE NOT
INVOLVED IN THE PRESENT DISPUTE.  THE OTHERS, AND PARTICULARLY THOSE IN
THE NEWSPAPER BUSINESS, WORK IRREGULAR HOURS.  PRIOR TO THE EFFECTIVE
DATE OF THE ACT, OCTOBER 24, 1938, RESPONDENT HAD BEEN PAYING ALL BUT
TWO OR THREE OF THESE EMPLOYEES MORE THAN THE MINIMUM WAGE REQUIRED BY
THE ACT.  THEY RECEIVED VACATIONS OF APPROXIMATELY TWO WEEKS EACH YEAR
AT FULL PAY; SPECIAL BONUSES AT THE END OF THE YEAR AMOUNTING TO
APPROXIMATELY ONE WEEK'S EARNINGS; AND FULL PAY DURING PERIODS OF
ILLNESS, SOMETIMES CONTINUING FOR WEEKS AND SOMETIMES FOR MONTHS.  AT
THE TIME OF THE TRIAL, 28 SUPERANNUATED EMPLOYEES WERE CARRIED ON THE
PAYROLL AT FULL RATES OF PAY.  EMPLOYEES WERE PERMITTED ABSENCES TO
ATTEND TO PERSONAL AFFAIRS WITHOUT DEDUCTIONS FROM PAY.  WHEN THEY WERE
REQUIRED TO WORK LONG HOURS IN ANY WEEK, THEY WERE GIVEN COMPENSATING
TIME OFF IN SUCCEEDING WEEKS.  LIFE INSURANCE WAS CARRIED FOR THEM AT
RESPONDENT'S EXPENSE. 

AFTER THE ENACTMENT OF THE FAIR LABOR STANDARDS ACT BUT BEFORE ITS
EFFECTIVE DATE, RESPONDENT ENDEAVORED TO ADJUST ITS COMPENSATION SYSTEM
TO MEET THE REQUIREMENTS OF THE ACT BY NEGOTIATING A CONTRACT WITH EACH
OF ITS EMPLOYEES EXCEPT THOSE IN THE MECHANICAL DEPARTMENTS.  THESE
CONTRACTS WERE IN THE FORM OF LETTERS STATING TERMS WHICH WERE AGREED
TO BY THE EMPLOYEES.  THE FOLLOWING IS A TYPICAL LETTER: 

"THE FAIR LABOR STANDARDS ACT WHICH GOES INTO EFFECT ON OCTOBER 24,
1938, PROVIDES FOR THE FOLLOWING MINIMUM WAGES AND MAXIMUM HOURS OF
EMPLOYMENT:

    "FIRST YEAR - 25[ PER HOUR MINIMUM

    44 HOURS MAXIMUM PER WEEK

                  "SECOND YEAR - 30[ PER HOUR MINIMUM

                       42 HOURS MAXIMUM PER WEEK

               "THIRD YEAR - 40[ PER HOUR MINIMUM  FN4

                       40 HOURS MAXIMUM PER WEEK 

EXCEPT THAT EMPLOYEES MAY WORK MORE THAN THE NUMBER OF HOURS
SPECIFIED ABOVE, PROVIDED THAT OVERTIME RATES SHALL BE A MINIMUM OF ONE
AND ONE-HALF TIMES THE BASIC RATE. 

"IN ORDER TO CONFORM OUR EMPLOYMENT ARRANGEMENTS TO THE SCHEME OF THE
ACT WITHOUT REDUCING THE AMOUNT OF MONEY WHICH YOU RECEIVE EACH WEEK,
WE ADVISE THAT FROM AND AFTER OCTOBER 24, 1938, YOUR BASIC RATE OF PAY
WILL BE  ...  67  ...  CENTS PER HOUR FOR THE FIRST FORTY-FOUR HOURS
EACH WEEK, AND THAT FOR TIME OVER FORTY-FOUR HOURS EACH WEEK YOU WILL
RECEIVE FOR EACH HOUR OF WORK NOT LESS THAN ONE AND ONE-HALF TIME SUCH
BASIC RATE ABOVE MENTIONED, WITH A GUARANTY ON OUR PART THAT YOU SHALL
RECEIVE WEEKLY, FOR REGULAR TIME AND FOR SUCH OVERTIME AS THE
NECESSITIES OF THE BUSINESS MAY DEMAND, A SUM NOT LESS THAN $40.  ...
" 

IN MOST CASES, AS IN THIS EXAMPLE, THE SPECIFIED HOURLY RATE WAS
FIXED AT 1/60TH OF THE GUARANTEED WEEKLY WAGE.  THE RESULT WAS THAT
DURING THE FIRST YEAR UNDER THE ACT, WHEN THE STATUTORY MAXIMUM OF
REGULAR HOURS WAS 44, THE EMPLOYEE WAS REQUIRED TO WORK 54 1/2 HOURS
BEFORE HE BECAME ENTITLED TO ANY PAY IN ADDITION TO THE WEEKLY
GUARANTY.  FN5  WHEN THE EMPLOYEE WORKED ENOUGH HOURS AT THE CONTRACT
RATE TO EARN MORE THAN THE GUARANTY, THE SURPLUS TIME WAS PAID FOR AT
THE RATE OF 150% OF THE HOURLY CONTRACT WAGE.  IF THE EMPLOYEE RECEIVED
AN INCREASE IN PAY, THE HOURLY RATE AND WEEKLY RATE WERE READJUSTED. 

FOR EIGHTEEN MONTHS THE SYSTEM EMBODIED IN THESE CONTRACTS WAS
FOLLOWED TO THE APPARENT SATISFACTION OF EMPLOYER AND EMPLOYEES. 
RESPONDENT WAS THEN ADVISED THAT THE ARRANGEMENT WAS IN VIOLATION OF
THE ACT AND THAT IT WAS LIABLE TO ITS EMPLOYEES IN AN AMOUNT OF FROM 30
TO 60 THOUSAND DOLLARS.  IT WAS INFORMED BY THE REGIONAL DIRECTOR IN
DALLAS AND BY AN OFFICIAL IN THE ADMINISTRATOR'S OFFICE IN WASHINGTON
THAT AN EMPLOYEE'S COMPLAINT HAD PRECIPITATED THE INVESTIGATION.  THESE
OFFICIALS DECLINED TO GIVE THE NAME OF THE EMPLOYEE. 

RESPONDENT THEREUPON BROUGHT SUIT FOR A DECLARATORY JUDGMENT IN THE
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, JOINING THE REGIONAL
DIRECTOR AND THREE OF ITS EMPLOYEES AS DEFENDANTS.  THE DEFENDANT
EMPLOYEES ANSWERED THAT THEY AND ALL THE OTHER EMPLOYEES AFFECTED BY
THE SYSTEM APPROVED OF IT.  THE REGIONAL DIRECTOR MOVED TO DISMISS ON
TWO GROUNDS, ONE OF WHICH WAS THAT HE REPRESENTED NONE OF THE
EMPLOYEES.  THE MOTION TO DISMISS WAS DENIED.  35 F.SUPP.  430.  IN THE
MEANTIME, PETITIONER INSTITUTED THIS SUIT TO ENJOIN RESPONDENT FROM
CONTINUING TO OPERATE THE WAGE SYSTEM BASED UPON ITS CONTRACTS WITH ITS
EMPLOYEES.  THE TWO SUITS WERE CONSOLIDATED AND TRIED TOGETHER.  THE
DISTRICT COURT ENTERED A DECLARATORY JUDGMENT FOR THE RESPONDENT AND
DISMISSED THE BILL FOR AN INJUNCTION.  36 F.SUPP.  907. 

PETITIONER APPEALED TO THE CIRCUIT COURT OF APPEALS FROM THE
DISMISSAL OF ITS COMPLAINT.  THAT COURT AFFIRMED THE JUDGMENT OF THE
DISTRICT COURT.  121 F.2D 207.  IT FOUND THAT THE CONTRACTS WERE
"ACTUAL BONA FIDE CONTRACTS OF EMPLOYMENT" AND THAT "THEY WERE INTENDED
TO, AND DID, REALLY FIX THE REGULAR RATES AT WHICH EACH EMPLOYEE WAS
EMPLOYED."  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE
QUESTION IN THE ADMINISTRATION OF THE ACT. 

IT IS NO DOUBT TRUE, AS PETITIONER CONTENDS, THAT THE PURPOSE OF
RESPONDENT'S ARRANGEMENT WITH ITS EMPLOYEES WAS TO PERMIT, AS FAR AS
POSSIBLE, THE PAYMENT OF THE SAME TOTAL WEEKLY WAGE AFTER THE ACT AS
BEFORE.  BUT NOTHING IN THE ACT BARS AN EMPLOYER FROM CONTRACTING WITH
HIS EMPLOYEES TO PAY THEM THE SAME WAGES THAT THEY RECEIVED PREVIOUSLY,
SO LONG AS THE NEW RATE EQUALS OR EXCEEDS THE MINIMUM REQUIRED BY THE
ACT.  FN6 

THE ACT REQUIRES THAT FOR EACH HOUR OF WORK BEYOND THE STATUTORY
MAXIMUM, THE EMPLOYEES MUST BE PAID "NOT LESS THAN ONE AND ONE-HALF
TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED."  THIS CASE TURNS UPON
THE MEANING OF THE WORDS "THE REGULAR RATE AT WHICH HE IS EMPLOYED." 
RESPONDENT CONTENDS THAT THE REGULAR RATE UNDER THE ILLUSTRATIVE
CONTRACT, WHICH IS SET OUT ABOVE AND TO WHICH WE SHALL REFER
THROUGHOUT, IS 67 CENTS AN HOUR.  PETITIONER ARGUES, HOWEVER, THAT THE
67 CENTS HOURLY RATE MENTIONED IN THE CONTRACT IS MEANINGLESS AND THAT
THE AGREEMENT IS, IN EFFECT, FOR A WEEKLY SALARY OF $40 WITHOUT REGARD
TO FLUCTUATIONS IN THE NUMBER OF HOURS WORKED EACH WEEK.  TREATING THE
CONTRACT AS ONE FOR A FIXED WEEKLY SALARY, HE URGES THAT THE REGULAR
HOURLY RATE FOR ANY SINGLE WEEK IS THE QUOTIENT OF THE $40 GUARANTY
DIVIDED BY THE NUMBER OF HOURS ACTUALLY WORKED IN THAT WEEK.  FN7
UNDER THIS FORMULA THE EMPLOYEE IS ENTITLED TO THE REGULAR HOURLY RATE
THUS DETERMINED FOR THE FIRST 44 HOURS  FN8  EACH WEEK AND TO NOT LESS
THAN ONE AND ONE-HALF TIMES THAT RATE FOR EACH HOUR THEREAFTER. 

IN ITS INITIAL STAGE THE QUESTION TO WHICH THIS DISPUTE GIVES RISE IS
A QUESTION OF LAW, A QUESTION OF INTERPRETATION OF THE STATUTORY TERM
"REGULAR RATE."  BUT IT IS AGREED THAT AS A MATTER OF LAW EMPLOYER AND
EMPLOYEE MAY ESTABLISH THE "REGULAR RATE" BY CONTRACT.  IN THE CASE
BEFORE US, SUCH AN EFFORT HAS BEEN MADE, AND IN THE EXAMPLE GIVEN THE
REGULAR RATE HAS BEEN SPECIFIED AS 67 CENTS AN HOUR.  THE DIFFICULTY
ARISES FROM THE INCLUSION OF THE $40 GUARANTY.  THE PROBLEM IS WHETHER
THE INTENTION OF THE PARTIES TO SET 67 CENTS AN HOUR AS THE REGULAR
RATE SQUARES WITH THEIR INTENTION TO GUARANTEE A WEEKLY INCOME OF $40. 
THE ADMINISTRATOR'S POSITION IS THAT THESE TWO OBJECTIVES ARE
INHERENTLY INCONSISTENT AND THAT THE INTENTION TO FIX THE REGULAR
HOURLY RATE AT 67 CENTS IS OVERRIDDEN BY THE INTENTION TO GUARANTEE THE
$40 PER WEEK. 

WE CANNOT AGREE.  IN THE FIRST PLACE, WHEN AN EMPLOYEE WORKS MORE
THAN 54 1/2 HOURS IN A SINGLE WEEK, HE IS ADMITTEDLY ENTITLED TO MORE
THAN THE $40 GUARANTEE.  THE RECORD SHOWS THAT IN SUCH A CASE, THE
EMPLOYEE IS PAID AT THE RATE OF $1.00 AN HOUR (150% X $.67) FOR EACH
HOUR OF OVERTIME.  IN THIS SITUATION, THEN, IT IS CLEARLY THE GUARANTY
THAT BECOMES INOPERATIVE AND THE 67 CENT HOURLY RATE FIXED BY THE
CONTRACT THAT IS CONTROLLING. 

IN THE SECOND PLACE, ALTHOUGH IT IS PERFECTLY TRUE THAT WHEN THE
EMPLOYEE WORKS LESS THAN 54 1/2 HOURS DURING THE WEEK HIS PAY IS
DETERMINED BY THE $40 GUARANTY, IT DOES NOT DISPOSE OF THE PROBLEM
SIMPLY TO SAY THIS.  THE QUESTION REMAINS WHETHER THE $40 CONTEMPLATES
COMPENSATION FOR OVERTIME AS WELL AS BASIC PAY.  THE CONTRACT SAYS THAT
THE EMPLOYEE IS TO RECEIVE 67 CENTS AN HOUR FOR THE FIRST 44 HOURS AND
"NOT LESS THAN ONE AND ONE-HALF TIME SUCH BASIC RATE" FOR EACH HOUR
OVER 44.  CONSEQUENTLY, IF AN EMPLOYEE WORKS 50 HOURS IN A GIVEN WEEK,
IT MIGHT REASONABLY BE SAID THAT HIS $40 WAGE CONSISTS OF $29.48 FOR
THE FIRST 44 HOURS (44 X $.67) PLUS $10.52 FOR THE REMAINING SIX HOURS
(6 X $1.753).  TO BE SURE, $1.753 IS MORE THAN 150% OF $.67.  BUT THE
ACT DOES NOT PROHIBIT PAYING MORE; IT REQUIRES ONLY THAT THE OVERTIME
RATE BE "NOT LESS THAN" 150% OF THE BASIC RATE.  IT IS ALSO TRUE THAT
UNDER THIS FORMULA THE OVERTIME RATE PER HOUR MAY VARY FROM WEEK TO
WEEK.  BUT NOTHING IN THE ACT FORBIDS SUCH FLUCTUATION. 

THE GIST OF THE ADMINISTRATOR'S OBJECTION TO THIS INTERPRETATION IS
THAT BOTH THE BASIC RATE AND THE OVERTIME RATE ARE SO "ARTIFICIAL" THAT
THE PARTIES TO THE CONTRACT CANNOT FAIRLY BE SUPPOSED TO HAVE INTENDED
THAT IT BE SO CONSTRUED.  IT CANNOT BE DENIED THAT THE FLEXIBILITY OF
THE OVERTIME RATE IS CONSIDERABLE, BUT THIS FLEXIBILITY MAY WELL HAVE
BEEN INTENDED IF IT WAS THE ONLY MEANS OF SECURING UNIFORMITY IN WEEKLY
INCOME.  MOREOVER, UNDER THE ADMINISTRATOR'S INTERPRETATION, THE
REGULAR RATE IN THE EXAMPLE GIVEN IS $40 DIVIDED BY THE NUMBER OF HOURS
WORKED EACH WEEK.  SINCE THE NUMBER OF HOURS WORKED FLUCTUATES SO
DRASTICALLY FROM WEEK TO WEEK, THIS "REGULAR" RATE IS CERTAINLY
"IRREGULAR" IN A MATHEMATICAL SENSE.  AND INASMUCH AS IT CANNOT BE
CALCULATED UNTIL AFTER THE WORKWEEK HAS BEEN COMPLETED, IT IS DIFFICULT
TO SAY THAT IT IS "REGULAR" IN THE SENSE THAT EITHER EMPLOYER OR
EMPLOYEE KNOWS WHAT IT IS OR CAN PLAN ON THE BASIS OF IT. 

THE ARTIFICIALITY OF THE METHOD URGED BY THE ADMINISTRATOR IS
ACCENTUATED BY THE NATURE OF HIS COUNTER-PROPOSAL OF TWO PLANS BY WHICH
THE WEEKLY WAGE OF AN EMPLOYEE WHOSE HOURS VARY FROM WEEK TO WEEK MAY
BE STABILIZED.  ONE OF THESE OFFICIALLY APPROVED PLANS IS KNOWN AS THE
"TIME-OFF PLAN" AND IS EXPLAINED IN INTERPRETATIVE BULLETIN NO. 4. 
UNDER THIS PLAN THE EMPLOYMENT MUST BE PLACED UPON AN HOURLY RATE BASIS
WITH NO MENTION OF A GUARANTY.  THE PAY DAYS MUST BE SPACED AT
INTERVALS OF TWO WEEKS OR LONGER.  IF THE PAY PERIOD IS SET AT TWO
WEEKS AND THE EMPLOYEE IS REQUIRED TO WORK OVERTIME DURING THE FIRST
WEEK, HE IS GIVEN SUFFICIENT TIME OFF DURING THE SECOND WEEK TO KEEP
HIS PAYCHECK AT A CONSTANT LEVEL.  IN OUR VIEW, THIS COUNTER-PROPOSAL
FAR EXCEEDS IN TECHNICALITY THE PLAN ADOPTED BY RESPONDENT.  MOREOVER,
ITS OPERATION IS TO PROVIDE A CEILING BUT NOT A FLOOR FOR THE WAGE. 
SINCE THE PAY IS BY THE HOUR AND THERE IS NO GUARANTY, IN A PAY PERIOD
IN WHICH AN EMPLOYEE WORKS FEW HOURS, HIS WAGE MAY FALL FAR BELOW THE
LEVEL AIMED AT. 

THE OTHER OFFICIALLY APPROVED ARRANGEMENT IS KNOWN AS THE "PRE
PAYMENT PLAN," AND IS ALSO EXPLAINED IN BULLETIN NO. 4.  UNDER THIS
PLAN, VIRTUALLY THE SAME ARRANGEMENT AS THAT WHICH WE HAVE BEEN USING
AS AN EXAMPLE CAN STAND.  THAT IS TO SAY, AN EMPLOYEE MAY BE PROMISED
67 CENTS AN HOUR FOR THE FIRST 44 HOURS, $1.00 FOR EACH HOUR OVER 44,
FN9  WITH A GUARANTY OF $40 A WEEK.  HOWEVER, IN ANY WEEK IN WHICH THE
EMPLOYEE'S EARNINGS AT THE STATED HOURLY RATES DO NOT EQUAL THE $40
GUARANTY, THE BALANCE NECESSARY TO FULFILL THE GUARANTY MUST BE TREATED
AS A LOAN TO HIM.  IF IN ANY SUCCEEDING WEEK HIS EARNINGS AT THE STATED
HOURLY RATES EXCEED THE GUARANTY, THE EXCESS IS WITHHELD BY THE
EMPLOYER AS A REPAYMENT OF THE LOAN.  BUT IF HIS EARNINGS DO NOT EXCEED
THE GUARANTY IN ANY SUCCEEDING WEEK, AND AFTER RECEIVING HIS PAY CHECK
HE DOES NOT RETURN TO WORK, THE EMPLOYER IS PRESUMED TO MAKE AN EFFORT
TO COLLECT THE EXCESS AMOUNT PAID TO THE EMPLOYEE IN A PREVIOUS WEEK. 
IF THE EMPLOYER DOES NOT RECOVER THIS EXCESS AMOUNT, THEN FOR ALL
PRACTICAL PURPOSES THE PLAN OPERATES JUST AS DOES THE PLAN FOLLOWED BY
THE RESPONDENT IN THIS CASE.  ABOUT THE ONLY DIFFERENCE IS THAT ONE IS
CALLED A "GUARANTY PLAN," WHILE THE OTHER IS CALLED A "PRE-PAYMENT
PLAN."  IN THE OPINION OF THE ADMINISTRATOR, THE "PRE-PAYMENT PLAN" IS
LAWFUL; THE "GUARANTY PLAN" IS UNLAWFUL.    BUT THE GUARANTY CONTRACT
IN THIS CASE CARRIES OUT THE INTENTION OF THE CONGRESS.  IT SPECIFIES A
BASIC HOURLY RATE OF PAY AND NOT LESS THAN TIME AND A HALF THAT RATE
FOR EVERY HOUR OF OVERTIME WORK BEYOND THE MAXIMUM HOURS FIXED BY THE
ACT.  IT IS ENTIRELY UNLIKE THE MISSEL CASE, ANTE, P. 572.  IN THE
CONTRACT IN THAT CASE, THERE IS NO STATED HOURLY WAGE AND NO PROVISION
FOR OVERTIME.  UNDER THE DECISION IN THAT CASE, AN EMPLOYER WHO ENGAGES
A WORKER FOR A FIXED WEEKLY WAGE OF $40 FOR IRREGULAR HOURS AND WORKS
HIM 65 HOURS (IN A YEAR WHEN THE MAXIMUM WORKWEEK IS 44 HOURS), OWES
THE EMPLOYEE $46.38.  SEE MISSEL CASE.  FOR THE SAME HOURS UNDER THE
BELO CONTRACT, AT THE HOURLY CONTRACT RATE OF 67 CENTS, THE WORKER
WOULD RECEIVE $50.48.  THERE IS A DIFFERENCE IN COMPENSATION, BUT THAT
IS THE AGREEMENT OF THE PARTIES AND IT IS WITHIN THE LETTER AND THE
INTENTION OF THE LAW. 

THE PROBLEM PRESENTED BY THIS CASE IS DIFFICULT - DIFFICULT BECAUSE
WE ARE ASKED TO PROVIDE A RIGID DEFINITION OF "REGULAR RATE" WHEN
CONGRESS HAS FAILED TO PROVIDE ONE.  PRESUMABLY, CONGRESS REFRAINED
FROM ATTEMPTING SUCH A DEFINITION BECAUSE THE EMPLOYMENT RELATIONSHIPS
TO WHICH THE ACT WOULD APPLY WERE SO VARIOUS AND UNPREDICTABLE.  AND
THAT WHICH IT WAS UNWISE FOR CONGRESS TO DO, THIS COURT SHOULD NOT DO.
WHEN EMPLOYER AND EMPLOYEES HAVE AGREED UPON AN ARRANGEMENT WHICH HAS
PROVEN MUTUALLY SATISFACTORY, WE SHOULD NOT UPSET IT AND APPROVE AN
INFLEXIBLE AND ARTIFICIAL INTERPRETATION OF THE ACT WHICH FINDS NO
SUPPORT IN ITS TEXT AND WHICH AS A PRACTICAL MATTER ELIMINATES THE
POSSIBILITY OF STEADY INCOME TO EMPLOYEES WITH IRREGULAR HOURS.  WHERE
THE QUESTION IS AS CLOSE AS THIS ONE, IT IS WELL TO FOLLOW THE
CONGRESSIONAL LEAD AND TO AFFORD THE FULLEST POSSIBLE SCOPE TO
AGREEMENTS AMONG THE INDIVIDUALS WHO ARE ACTUALLY AFFECTED.  THIS
POLICY IS BASED UPON A COMMON SENSE RECOGNITION OF THE SPECIAL PROBLEMS
CONFRONTING EMPLOYER AND EMPLOYEE IN BUSINESSES WHERE THE WORK HOURS
FLUCTUATE FROM WEEK TO WEEK AND FROM DAY TO DAY.  MANY SUCH EMPLOYEES
VALUE THE SECURITY OF A REGULAR WEEKLY INCOME.  THEY WANT TO OPERATE ON
A FAMILY BUDGET, TO MAKE COMMITMENTS FOR PAYMENTS ON HOMES AND
AUTOMOBILES AND INSURANCE.  CONGRESS HAS SAID NOTHING TO PREVENT THIS
DESIRABLE OBJECTIVE.  THIS COURT SHOULD NOT.  AFFIRMED. 

FN1  ENFORCEMENT OF THE REQUIREMENTS OF THE ACT BY INJUNCTION IS
AUTHORIZED BY SEC. 17.  "THE DISTRICT COURTS OF THE UNITED STATES AND
THE UNITED STATES COURTS OF THE TERRITORIES AND POSSESSIONS SHALL HAVE
JURISDICTION, FOR CAUSE SHOWN, AND SUBJECT TO THE PROVISIONS OF SECTION
20(RELATING TO NOTICE TO OPPOSITE PARTY) OF THE ACT ENTITLED 'AN ACT TO
SUPPLEMENT EXISTING LAWS AGAINST UNLAWFUL RESTRAINTS AND MONOPOLIES,
AND FOR OTHER PURPOSES,' APPROVED OCTOBER 15, 1914, AS AMENDED (U.S.C.,
1934 EDITION, TITLE 28, SEC. 381), TO RESTRAIN VIOLATIONS OF SECTION
15."  52 STAT. 1069; 29 U.S.C. SEC. 217. 

FN2  "SEC.  7.  (A)  NO EMPLOYER SHALL, EXCEPT AS OTHERWISE PROVIDED
IN THIS SECTION, EMPLOY ANY OF HIS EMPLOYEES WHO IS ENGAGED IN COMMERCE
OR IN THE PRODUCTION OF GOODS FOR COMMERCE - 

(1)  FOR A WORKWEEK LONGER THAN FORTY-FOUR HOURS DURING THE FIRST
YEAR FROM THE EFFECTIVE DATE OF THIS SECTION, 

(2)  FOR A WORKWEEK LONGER THAN FORTY-TWO HOURS DURING THE SECOND
YEAR FROM SUCH DATE, OR 

(3)  FOR A WORKWEEK LONGER THAN FORTY HOURS AFTER THE EXPIRATION OF
THE SECOND YEAR FROM SUCH DATE, UNLESS SUCH EMPLOYEE RECEIVES
COMPENSATION FOR HIS EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED
AT A RATE NOT LESS THAN ONE AND ONEHALF TIMES THE REGULAR RATE AT WHICH
HE IS EMPLOYED."  52 STAT. 1063; 29 U.S.C. SEC. 207. 

FN3  "SEC.  15.  (A)  AFTER THE EXPIRATION OF ONE HUNDRED AND TWENTY
DAYS FROM THE DATE OF ENACTMENT OF THIS ACT, IT SHALL BE UNLAWFUL FOR
ANY PERSON - 

(1)  TO TRANSPORT, OFFER FOR TRANSPORTATION, SHIP, DELIVER, OR SELL
IN COMMERCE, OR TO SHIP, DELIVER, OR SELL WITH KNOWLEDGE THAT SHIPMENT
OR DELIVERY OR SALE THEREOF IN COMMERCE IS INTENDED, ANY GOODS IN THE
PRODUCTION OF WHICH ANY EMPLOYEE WAS EMPLOYED IN VIOLATION OF SECTION 6
OR SECTION 7, OR IN VIOLATION OF ANY REGULATION OR ORDER OF THE
ADMINISTRATOR ISSUED UNDER SECTION 14; EXCEPT THAT NO PROVISION OF THIS
ACT SHALL IMPOSE ANY LIABILITY UPON ANY COMMON CARRIER FOR THE
TRANSPORTATION IN COMMERCE IN THE REGULAR COURSE OF ITS BUSINESS OF ANY
GOODS NOT PRODUCED BY SUCH COMMON CARRIER, AND NO PROVISION OF THIS ACT
SHALL EXCUSE ANY COMMON CARRIER FROM ITS OBLIGATION TO ACCEPT ANY GOODS
FOR TRANSPORTATION; 

(2)  TO VIOLATE ANY OF THE PROVISIONS OF SECTION 6 OR SECTION 7, OR
ANY OF THE PROVISIONS OF ANY REGULATION OR ORDER OF THE ADMINISTRATOR
ISSUED UNDER SECTION 14; ...  " 52 STAT. 1068; 29 U.S.C. SEC. 215. 

FN4  IN LATER LETTERS THIS MISSTATEMENT, IMMATERIAL HERE, WAS
CORRECTED.  THE MINIMUM WAGE FOR THE FIRST 40 HOURS REMAINS 30 CENTS
UNTIL OCTOBER 24, 1945.  SEE SEC. 6 OF THE ACT. 

FN5  44 HOURS AT 67 CENTS EQUALS $29.48; 10 1/2 HOURS AT THE
STATUTORY MINIMUM OVERTIME RATE OF $1.00(150% X $.67) EQUALS $10.50;
$29.48 PLUS $10.50 EQUALS $39.98. 

FN6  SECTION 18 PROVIDES:  "NO PROVISION OF THIS ACT SHALL JUSTIFY
ANY EMPLOYER IN REDUCING A WAGE PAID BY HIM WHICH IS IN EXCESS OF THE
APPLICABLE MINIMUM WAGE UNDER THIS ACT, OR JUSTIFY ANY EMPLOYER IN
INCREASING HOURS OF EMPLOYMENT MAINTAINED BY HIM WHICH ARE SHORTER THAN
THE MAXIMUM HOURS APPLICABLE UNDER THIS ACT."  WHATEVER THE LEGAL
EFFECT OF THIS LANGUAGE, IT IS CERTAINLY NOT A PROHIBITION AND THE
ADMINISTRATOR DOES NOT RELY UPON IT.  THE FINDING OF THE CIRCUIT COURT
OF APPEALS THAT RESPONDENT'S EFFORT TO MAINTAIN THE WEEKLY INCOMES OF
ITS EMPLOYEES AT THEIR PRE-ACT LEVEL WAS IN GOOD FAITH GAINS SUPPORT
FROM THE CIRCUMSTANCE THAT AT THE VERY TIME WHEN RESPONDENT WAS
FORMULATING ITS NEW WAGE POLICY THE WAGE AND HOUR ADMINISTRATOR
DECLARED: 

"CLERICAL FORCES, WE ALL FEEL, ARE INCLUDED IN THE ACT.  BUT I CANNOT
SEE WHERE THERE IS GOING TO BE ANY PRACTICAL DIFFICULTY THERE BECAUSE
YOUR CLERICAL FORCE IN ANY PLANT OF ANY CONSEQUENCE CERTAINLY IS
EARNING ON A BASIS OF MORE THAN 25 CENTS AN HOUR WEEKLY WAGES DIVIDED
BY THE HOURS THEY WORK.  IF THEY ARE WELL ABOVE 25 CENTS AN HOUR, IT
SEEMS TO ME THAT THERE WOULD NOT BE MUCH QUESTION ABOUT TIME AND A HALF
FOR OVERTIME, BECAUSE YOU COULD FIGURE IN THAT WEEKLY WAGE THAT TIME
AND A HALF OVER THE 44 HOURS HAD BEEN GIVEN CONSIDERATION AS
REMUNERATION FOR THEIR FULL WEEK'S PAY." 

SPEECH BEFORE THE SOUTHERN STATES INDUSTRIAL COUNCIL AT BIRMINGHAM,
ALABAMA, ON SEPTEMBER 29, 1938.  3 WAGE AND HOUR REPORTER 228. 

FN7  THIS HAS BEEN THE ADMINISTRATOR'S INTERPRETATION OF THE ACT, AS
SET FORTH IN INTERPRETATIVE BULLETIN NO. 4, ISSUED OCTOBER 21, 1938 AND
REVISED IN NOVEMBER, 1940. 

FN8  FOR THE FIRST YEAR AFTER PASSAGE OF THE ACT; NOW 40 HOURS. 

FN9  IT SHOULD BE NOTED THAT RESPONDENT'S CONTRACT, SET OUT ABOVE,
DOES NOT FIX $1.00 AS THE HOURLY RATE FOR OVERTIME.  INSTEAD IT
PROVIDES THAT THE OVERTIME RATE SHALL BE "NOT LESS THAN ONE AND ONE
HALF" TIMES 67 CENTS. 

MR. JUSTICE REED, DISSENTING: 

THE COURT HOLDS, "WHEN EMPLOYER AND EMPLOYEES HAVE AGREED UPON AN
ARRANGEMENT WHICH HAS PROVEN MUTUALLY SATISFACTORY, WE SHOULD NOT UPSET
IT AND APPROVE AN INFLEXIBLE AND ARTIFICIAL INTERPRETATION OF THE ACT
WHICH FINDS NO SUPPORT IN ITS TEXT AND WHICH AS A PRACTICAL MATTER
ELIMINATES THE POSSIBILITY OF STEADY INCOME TO EMPLOYEES WITH IRREGULAR
HOURS."  YET IT IS RECOGNIZED BY THE COURT THAT THE VALIDITY OF THE
CONTRACT "TURNS UPON THE MEANING OF THE WORDS 'THE REGULAR RATE AT
WHICH HE IS EMPLOYED,'" THE PHRASE LEFT UNDEFINED BY CONGRESS, WHICH IT
IS SAID THE COURTS ALSO SHOULD LEAVE UNDEFINED AND FLEXIBLE.  NOT ONLY
DOES THE COURT'S CONCLUSION ASSUME THAT THE TYPICAL BELO CONTRACT
CONFORMS TO THE FAIR LABOR STANDARDS ACT BY THE PROVISION FOR HOURLY
WAGES AND TIME AND A HALF FOR OVERTIME, BUT, IN THE OPINION JUST
ANNOUNCED, THE COURT APPROVES THIS TYPE CONTRACT FOR HIRING, "SO LONG
AS THE NEW RATE EQUALS OR EXCEEDS THE MINIMUM REQUIRED BY THE ACT."  IN
SO DECIDING, THE COURT GIVES THE PHRASE "REGULAR RATE" AN
INTERPRETATION AS INFLEXIBLE AND ARTIFICIAL AS THAT WHICH IT CONDEMNS. 

THE COURT'S INTERPRETATION THAT, IN THE ABSENCE OF BAD FAITH, ANY
FORM OF CONTRACT WHICH ASSURES THE PAYMENT OF THE MINIMUM WAGE AND THE
REQUIRED OVERTIME COMPLIES WITH THE ACT MAY BE ASSUMED TO BE CORRECT. 
BUT SINCE THE OVERTIME HOURS MUST BE COMPENSATED "AT A RATE NOT LESS
THAN ONE AND ONE-HALF TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED,"
SEC. 7(A)(3), THE REGULAR RATE CANNOT BE LEFT WITHOUT "DEFINITION,"
"FLEXIBLE" OR UNFOUND FOR THIS CASE.  AND ONCE SO FOUND, IT MUST BE
APPLIED TO THE CIRCUMSTANCES OF THIS LITIGATION.  NO ALL-INCLUSIVE
DEFINITION WILL BE ATTEMPTED.  THE POSSIBILITIES OF VARIATION IN
CONTRACTS ARE TOO GREAT.  CERTAINLY, HOWEVER, THE COURT DOES NOT MEAN
TO SAY THAT THE EMPLOYER AND EMPLOYEE MAY CAPRICIOUSLY SELECT A CERTAIN
FIGURE, UNRELATED TO THE WAGES PAID, AND SAY "THAT IS THE REGULAR RATE
OF EMPLOYMENT."  EVERY CONTRACT OF EMPLOYMENT IS ASSUMED, BY THE
STATUTE, TO CONTAIN A "REGULAR RATE," AND FOR EACH CONTRACT IT IS A
LEGAL, NOT A FACTUAL, CONCLUSION.  WHAT THAT RATE IS HERE IS THE OBJECT
OF OUR INQUIRY.  ONCE DETERMINED FOR THIS CASE, THAT CONCLUSION BECOMES
A PRECEDENT FOR OTHER SIMILAR CONTRACTS AND SO, IN ONE SENSE, WHETHER
WE WISH IT OR NOT, A DEFINITION TO BE APPLIED IN THE ADMINISTRATION OF
THE ACT. 

THIS COURT ACCEPTS THE VIEW THAT THE FAIR LABOR STANDARDS ACT WAS
INTENDED NOT ONLY TO PUT A FLOOR UNDER WAGES BUT ALSO A CEILING OVER
HOURS.  THE LIMITATION OF HOURS IN TURN HAD TWO PURPOSES - THE
SPREADING OF WORK AND EXTRA COMPENSATION FOR OVERTIME, NO MATTER HOW
HIGH THE REGULAR WAGE MAY BE.  OVERNIGHT MOTOR TRANSPORTATION CO. V.
MISSEL, ANTE, PP. 572, 577.  SINCE OVERTIME PAY MUST AT LEAST EQUAL
TIME AND A HALF THE REGULAR RATE, AS SEC. 7(A) SPECIFIES, EMPLOYERS AND
EMPLOYEES MAY NOT BE PERMITTED TO CONTRACT IN AVOIDANCE OF THE
STATUTORY REQUIREMENT.  CONTRACTS FOR A REGULAR RATE PER HOUR CONFORM
EASILY TO THE REQUIREMENTS, BUT CONTRACTS FOR COMPENSATION IN OTHER
FORMS COMPEL AN ANALYSIS OF THEIR TERMS TO FIND THE REGULAR RATE. 
FIXED SALARIES, AS THIS COURT AGREES TODAY IN MISSEL'S CASE, ARE TO BE
REDUCED TO HOURLY RATES ON THE BASIS OF A WEEK AS THE UNIT OF TIME. 
BELO'S CONTRACT CONTAINS ELEMENTS BOTH OF HOURLY WAGE AND FIXED WEEKLY
WAGE CONTRACTS.  WE COME THEN TO THIS POINT.  ARE THE CONTRACTS HERE
INVOLVED FOR WEEKLY WAGES WITH VARIABLE HOURS, OR FOR HOURLY RATES WITH
TIME AND A HALF OF SUCH RATES FOR OVERTIME?  IF THE LATTER, RESPONDENT
CONTENDS THE ACT HAS LEFT HIM FREE TO CONTRACT WITH HIS EMPLOYEES AT
SUCH HOURLY REGULAR RATES AS MAY BE AGREED UPON, LIMITED ONLY BY THE
MINIMUM WAGE REQUIREMENTS.  AS A COURT, WE MUST APPRAISE THE NATURE OF
THESE CONTRACTS AND, IN MY JUDGMENT, THEY ARE AGREEMENTS FOR WEEKLY
WAGES FOR VARIABLE HOURS, WITH A PROVISION FOR ADDITIONAL COMPENSATION
PER HOUR CONTINGENT UPON WORK IN EXCESS OF AN ASCERTAINABLE NUMBER OF
HOURS - THE NUMBER OF HOURS OF WORK REQUIRED FOR THE WAGES EARNED UNDER
THE HOURLY WAGE TERMS OF THE CONTRACT TO EQUAL THE GUARANTY.  FN1
UNTIL THESE HOURS ARE EXCEEDED, THE STIPULATED WAGE PER HOUR HAS NO
DEMONSTRABLE EFFECT. 

THE CONTRACTS STATED THEY WERE DRAWN TO COMPLY WITH THE "SCHEME OF
THE ACT WITHOUT REDUCING" WEEKLY WAGES.  THE HOURLY RATE WAS
CUSTOMARILY WRITTEN AS ONE-SIXTIETH OF THE WEEKLY WAGES.  THE OVERTIME
ABOVE THE MAXIMUM HOURS WAS SET AT 150% OF THE HOURLY WAGE OR ONE
FORTIETH OF THE WEEKLY.  THIS WAS THEN FOLLOWED BY A GUARANTY THAT THE
EMPLOYEE SHOULD "RECEIVE WEEKLY," FOR REGULAR AND OVERTIME, THE FORMER
WEEKLY WAGE.  THIS GUARANTY WAS THE DOMINATING FEATURE OF THE
CONTRACT.  WITHOUT THE GUARANTY, THE ADOPTION OF A LOW HOURLY RATE
WOULD ENCOUNTER THE FULL WEIGHT OF EMPLOYEE BARGAINING POWER.  THE
GUARANTY AVOIDS THIS CONFLICT BY FIXING THE MINIMUM WEEKLY WAGE.  THIS
GUARANTY CONTROLS THE WEEKLY WAGE UP TO 54 1/2 HOURS OF WORK, THE
NUMBER OF HOURS CONTRACTED FOR BY BELO WITHOUT PAYING MORE THAN THE
FIXED WEEKLY WAGE.  IN A 54 1/2 HOUR WEEK OR LESS, THE REGULAR RATE
SHOULD BE THE GUARANTY DIVIDED BY THE HOURS ACTUALLY WORKED. 

IT SEEMS OBVIOUS THAT THE GUARANTY WAS THE HEART OF THE ARRANGEMENT. 
THE EFFECT OF THE CONTRACT IN THE ILLUSTRATIVE CASE IS TO PAY 73 CENTS
AN HOUR FOR WORK UP TO 54 1/2 HOURS AND $1.00(EXPRESSED IN THE
CIRCUMLOCUTION OF TIME AND A HALF 67 CENTS) FOR OVERTIME BEYOND THOSE
HOURS, WITH A GUARANTY THAT THERE WILL BE $40 WORTH OF WORK EACH WEEK. 
THE "BASIC" HOURLY RATE, THE HOURS CONTRACTED FOR AT THE BASIC RATE AND
THE STATED PERCENTAGE PAID FOR OVERTIME MAY BE VARIED WITHOUT EFFECT ON
EARNINGS PROVIDED THE GUARANTY AND REAL OVERTIME RATE ARE KEPT FIXED. 
FN2 

THE EMPLOYEE WILLING, THE NUMBER OF HOURS WHICH MUST BE WORKED TO
EARN THE GUARANTY CAN BE INCREASED BY SUITABLE ADJUSTMENT OF THE
CONTRACT FIGURES OF HOURLY RATE, HOURS CONTRACTED AND OVERTIME
PERCENTAGES.  BY SUCH A VERBAL DEVICE, ASTUTE MANAGEMENT MAY AVOID MANY
OF THE DISADVANTAGES OF ORDINARY OVERTIME, CHIEF OF WHICH IS A DEFINITE
INCREASE IN THE COST OF LABOR AS SOON AS THE HOURS WORKED EXCEED THE
STATUTORY WORKWEEK.  IF THE INTENTION OF CONGRESS IS TO REQUIRE AT
LEAST TIME AND A HALF FOR OVERTIME WORK BEYOND A FIXED MAXIMUM NUMBER
OF HOURS (40, 42 OR 44 HOURS), THAT INTENTION IS FRUSTRATED BY TODAY'S
HOLDING.  UNDER MISSEL'S CASE, AN EMPLOYER WHO ENGAGES A WORKER FOR A
FIXED WEEKLY WAGE OF $40 FOR IRREGULAR HOURS AND WORKS HIM 54 1/2 HOURS
A WEEK IN A YEAR WITH A 44 HOUR MAXIMUM, OWES $43.86.  UNDER THE BELO
CONTRACT, THE WORKER WOULD RECEIVE $40.  BECAUSE THERE IS NO INCREASE
OF LABOR COST BETWEEN THE STATUTORY MAXIMUM AND THE HOURS CONTRACTED
FOR (54 1/2), THE EMPLOYER HAS A FINANCIAL INDUCEMENT TO REQUIRE HOURS
BEYOND THE STATUTORY MAXIMUM.    AS POINTED OUT ABOVE, THIS CONTRACT IS
NOT ONLY AN AGREEMENT TO PAY A FIXED WAGE, $40.00, FOR VARIABLE HOURS
UP TO 54 1/2, BUT THERE IS A PROVISION FOR ADDITIONAL COMPENSATION FOR
THE HOURS OVER THE CONTRACT MAXIMUM.  WHERE THE HOURS WORKED EXCEED THE
NUMBER NECESSARY TO ENTITLE THE EMPLOYEE TO HOURLY PAY UNDER THE
CONTRACT, EQUAL IN THE AGGREGATE TO THE GUARANTY, THE EMPLOYEE IS
ENTITLED TO RECEIVE HIS REGULAR RATE FOR THE STATUTORY MAXIMUM HOURS
AND 150% OF THAT RATE FOR ALL OVERTIME.  THE CONTRACTS IN MOST
INSTANCES FIXED THE BASIC RATE AT ONE-SIXTIETH OF THE GUARANTY, BUT THE
EFFECT OF THE GUARANTY, IN OUR VIEW, IS TO MAKE THE REGULAR RATE OF
EMPLOYMENT FOR THE PRECISE NUMBER OF HOURS NECESSARY UNDER THE CONTRACT
TO EARN THE GUARANTY, THE QUOTIENT OF THE GUARANTY DIVIDED BY THE
HOURS.  FN3  FOR THE SURPLUS HOURS OVER 54 1/2 THE SAME REGULAR RATE
CONTINUES TO BE APPLICABLE.  FN4 

IT IS THE GUARANTY WHICH GIVES CHARACTER TO THESE CONTRACTS, WHICH
DETERMINES THE AMOUNT TO BE RECEIVED BY THE EMPLOYEE UNDER ITS TERMS,
EXCEPT IN THE INSTANCES OF WORK BEYOND 54 1/2 HOURS.  IT IS ONLY WORK
BEYOND THE 54 1/2 HOURS WHICH CALLS FOR EXTRA PAY FROM THE EMPLOYER. 
CONSEQUENTLY IT SEEMS PROPER TO FIND THE REGULAR RATE OF EMPLOYMENT BY
USING THE GUARANTEE AS THE DIVIDEND AND THE MAXIMUM HOURS POSSIBLE
WITHOUT INCREASED CONTRACT PAY AS THE DIVISOR.  THE OBJECTION THAT THIS
PERMITS STATUTORY OVERTIME PAY TO BE COMPUTED ON CONTRACT OVERTIME PAY
SPRINGS FROM THE WORDING OF THE CONTRACT MAKING THE GUARANTEE COVER
OVERTIME UP TO THE 54 1/2 HOURS.  THIS OBJECTION LOSES ITS FORCE WITH
THE DETERMINATION THAT THE GUARANTY FIXES THE QUALITY OF THE CONTRACT,
RATHER THAN THE SO-CALLED BASIC OR HOURLY RATE OF PAY. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD BE REVERSED AND
THIS ACTION REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS. 

FN1  CF. CARLETON SCREW PRODUCTS CO. V. FLEMING, 126 F.2D 537. 

FN2  AN EXAMPLE WILL ILLUSTRATE THE LACK OF SIGNIFICANCE OF THE OTHER
NUMBERS IN THE CONTRACT.  VARYING RATES, HOURS AND OVERTIME PERCENTAGES
ARE SUBSTITUTED FOR THOSE IN THE BELO CONTRACT QUOTED IN THE COURT'S
OPINION.  "IN ORDER TO CONFORM OUR EMPLOYMENT ARRANGEMENTS TO THE
SCHEME OF THE ACT WITHOUT REDUCING THE AMOUNT OF MONEY WHICH YOU
RECEIVE EACH WEEK, WE ADVISE THAT FROM AND AFTER OCTOBER 24, 1938, YOUR
BASIC RATE OF PAY WILL BE (50) CENTS PER HOUR FOR THE FIRST (29) HOURS
EACH WEEK, AND THAT FOR TIME OVER (29) HOURS EACH WEEK YOU WILL RECEIVE
FOR EACH HOUR OF WORK NOT LESS THAN (DOUBLE) TIME SUCH BASIC RATE ABOVE
MENTIONED, WITH A GUARANTY ON OUR PART THAT YOU SHALL RECEIVE WEEKLY,
FOR REGULAR TIME AND FOR SUCH OVERTIME AS THE NECESSITIES OF THE
BUSINESS MAY DEMAND, A SUM NOT LESS THAN $40.00." 

29 HOURS X $.50 $14.50.  54.5 HOURS - 29 HOURS 25.5 HOURS AT 

$1.00 PER HOUR   $25.50.  TIME PLUS OVERTIME   $40.00.  THEREAFTER
THE EMPLOYEE RECEIVES $1.00 PER HOUR. 

THE SAME IS TRUE OF A BASIC RATE OF $.60 FOR 36 1/4 HOURS AND TIME
AND TWO-THIRDS THEREAFTER, WITH A GUARANTY OF $40. 

FN3  WEEKLY GUARANTY - $40.  HOURS WORKED - 54 2/3.  STRAIGHT HOURLY
CONTRACT WAGE - $40/60 $.66 2/3.  STRAIGHT CONTRACT HOURS - 44.  44 X
$.66 2/3   $29.33 1/3.  OVERTIME HOURLY CONTRACT WAGE - $1.00. 
OVERTIME CONTRACT HOURS - 10 2/3.  10 2/3 X $1   $10.66 2/3.  TOTAL
CONTRACT WAGE PAID - $40.  STATUTORY REGULAR RATE - 40/54 2/3   $.732
PER HOUR.  STATUTORY MAXIMUM HOURS - 44.  44 X $.732   $32.20. 
STATUTORY OVERTIME RATE - $1.098.  STATUTORY OVERTIME HOURS   10 2/3. 
10 2/3 X $1.098   $11.71.  TOTAL REQUIRED COMPENSATION - $43.91. 

FN4  HOURS WORKED - 60.  STATUTORY MAXIMUM HOURS - 44.  REGULAR RATE
$.732.  44 X $.732 $32.20.  STATUTORY OVERTIME HOURS - 16.  OVERTIME
RATE - $1.098.  16 X $1.098   $17.57.  TOTAL REQUIRED COMPENSATION -
$49.77. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN IN
THIS DISSENT. 
..END :



















HILL V. TEXAS, 316 U.S. 400 


NO. 1119.  ARGUED MAY 11, 1942.  - DECIDED JUNE 1, 1942.  - 157 S.W.2D
369, REVERSED. 


1.  EVIDENCE HELD SUFFICIENT TO MAKE OUT A PRIMA FACIE CASE OF
SYSTEMATIC DISCRIMINATION AGAINST NEGROES IN THE SELECTION OF GRAND
JURORS,  - VIOLATIVE OF THE FOURTEENTH AMENDMENT.  P. 404. 

2.  STATE GRAND JURY COMMISSIONERS WHO CONSCIOUSLY OMIT TO PLACE ANY
NEGRO ON THE GRAND JURY LIST, MAKING NO EFFORTS TO ASCERTAIN WHETHER
THERE ARE IN THE COUNTY NEGROES QUALIFIED UNDER THE STATE LAW TO SERVE
AS JURORS, FAIL TO PERFORM THEIR CONSTITUTIONAL DUTY, RECOGNIZED BY
SEC. 4 OF THE CIVIL RIGHTS ACT OF MARCH 1, 1875.  P. 404. 

3.  WHERE THE EVIDENCE SHOWS, WITHOUT CONTRADICTION, THAT A LARGE
NUMBER OF NEGROES WHO ARE LITERATE RESIDE IN THE COUNTY FROM WHICH
GRAND JURORS ARE DRAWN, THERE IS NO ROOM TO INFER THAT THERE ARE NOT
AMONG THEM LITERATE HOUSEHOLDERS OF GOOD MORAL CHARACTER, QUALIFIED AND
AVAILABLE FOR GRAND JURY SERVICE UNDER THE STATE LAW.  P. 404. 

HILL V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

CERTIORARI, POST, P. 655, TO REVIEW A JUDGMENT SUSTAINING A
CONVICTION FOR RAPE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A NEGRO, WAS INDICTED FOR THE CRIME OF RAPE BY THE GRAND
JURY FOR DALLAS COUNTY, TEXAS.  WHEN THE CASE WAS CALLED FOR TRIAL HE
SUBMITTED TO THE COURT HIS VERIFIED WRITTEN MOTION TO QUASH THE
INDICTMENT BECAUSE HE HAD BEEN DENIED THE EQUAL PROTECTION OF THE LAWS
GUARANTEED BY THE FOURTEENTH AMENDENT.  THE GROUNDS OF HIS MOTION WERE
THAT NEGROES HAD BEEN EXCLUDED FROM THE GRAND JURY WHICH RETURNED THE
INDICTMENT, AND THAT THE JURY COMMISSIONERS AND OTHER STATE OFFICERS
CHARGED WITH THE DUTY OF ORGANIZING AND IMPANELLING GRAND JURIES IN
DALLAS COUNTY HAVE FOR MANY YEARS SYSTEMATICALLY EXCLUDED, AND IN THIS
CASE DID EXCLUDE, NEGROES FROM THE GRAND JURY BECAUSE OF THEIR RACE. 

AFTER HEARING EVIDENCE THE COURT DENIED THE MOTION AND PROCEEDED WITH
THE TRIAL, WHICH RESULTED IN A VERDICT AND JUDGMENT OF CONVICTION.  THE
TEXAS COURT OF CRIMINAL APPEALS UPHELD THE TRIAL COURT'S RULING ON THE
MOTION AND AFFIRMED THE JUDGMENT.   - TEX. CR. -; 157 S.W.2D 369.  IT
HELD THAT PETITIONER HAD NOT SUSTAINED THE BURDEN OF PROOF RESTING ON
HIM TO SHOW THAT THE FAILURE TO SELECT NEGROES FOR SERVICE ON THE GRAND
JURIES IN DALLAS COUNTY WAS BECAUSE OF THEIR RACE RATHER THAN THEIR
LACK OF STATUTORY QUALIFICATIONS FOR GRAND JURY SERVICE.  WE GRANTED
CERTIORARI, POST, P. 655, TO INQUIRE WHETHER THE COURT'S RULING IS
CONSONANT WITH OUR DECISIONS IN NEAL V. DELAWARE, 103 U.S. 370; PIERRE
V. LOUISIANA, 306 U.S. 354; AND SMITH V. TEXAS, 311 U.S. 128. 

ARTICLE 339 OF THE TEXAS CODE OF CRIMINAL PROCEDURE PROVIDES THAT A
GRAND JUROR MUST BE A CITIZEN OF THE STATE AND COUNTY, QUALIFIED TO
VOTE THERE, A FREEHOLDER WITHIN THE STATE OR A HOUSEHOLDER WITHIN THE
COUNTY, OF SOUND MIND AND GOOD MORAL CHARACTER, ABLE TO READ AND
WRITE.  HE MUST NOT HAVE BEEN CONVICTED OF A FELONY OR BE UNDER
INDICTMENT OR OTHER LEGAL ACCUSATION OF ANY FELONY.  THE SECTION
DIRECTS THAT "WHENEVER IT SHALL BE MADE TO APPEAR TO THE COURT THAT THE
REQUISITE NUMBER OF JURORS WHO HAVE PAID THEIR POLL TAXES CANNOT BE
FOUND WITHIN THE COUNTY, THE COURT SHALL NOT REGARD THE PAYMENT OF POLL
TAXES AS A QUALIFICATION FOR SERVICE AS A JUROR." 

IN REJECTING THE PROOF OF DISCRIMINATION ON WHICH PETITIONER RELIED,
THE TEXAS COURT OF CRIMINAL APPEALS SAID "APPELLANT ASSUMED THE BURDEN
OF SUSTAINING HIS ALLEGATIONS BY PROOF.  HE ATTEMPTED TO DO SO BY
SHOWING CERTAIN FACTS FROM WHICH, AS HE CLAIMS, SUCH A CONCLUSION COULD
BE REASONABLY DRAWN.  HE SHOWED THAT 58,000 WHITE PERSONS AND 8,000
NEGROES PAID POLL TAXES IN DALLAS COUNTY, BUT THE RECORD IS SILENT AS
TO HOW MANY OF THEM WERE MALE AND HOW MANY WERE FEMALE PERSONS; NOR IS
IT SHOWN HOW MANY OF THESE MALE PERSONS COULD READ AND WRITE; NOR HOW
MANY OF THEM WERE FREEHOLDERS IN THE STATE OR HOUSEHOLDERS IN THE
COUNTY."  AND THE STATE ARGUES HERE THAT IN THESE CIRCUMSTANCES THERE
CAN BE NO INFERENCE THAT LONG-CONTINUED FAILURE OF THE COUNTY OFFICIALS
TO SELECT MEMBERS OF THE COLORED RACE TO SERVE ON GRAND JURIES IS
DISCRIMINATORY, WITHOUT PROOF THAT THERE ARE MEMBERS OF THAT RACE
LIVING IN THE COUNTY WHO ARE QUALIFIED TO SERVE AS GRAND JURORS. 

THE STATE FILED A GENERAL DENIAL OF PETITIONER'S MOTION, BUT
SUBMITTED NO ANSWERING AFFIDAVITS, AND CALLED NO WITNESSES, AND SO THE
ONLY QUESTION BEFORE US IS WHETHER PETITIONER MADE OUT A PRIMA FACIE
CASE OF THE DISCRIMINATORY EXCLUSION OF NEGROES FROM THE GRAND JURY. 
PETITIONER CALLED AS WITNESSES TWO OF THE THREE GRAND JURY
COMMISSIONERS, WHOSE DUTY IT IS TO SUMMON SIXTEEN MEN, OF WHOM TWELVE
ARE SELECTED FOR SERVICE ON EACH GRAND JURY IN DALLAS COUNTY (ARTICLES
338, 357).  THEY TESTIFIED THAT THE COMMISSION HAD SUMMONED, FOR
SERVICE ON THE GRAND JURY WHICH RETURNED THE INDICTMENT, MEMBERS OF THE
WHITE RACE WITH WHOM THEY WERE ACQUAINTED AND WHOM THEY KNEW TO BE
QUALIFIED TO SERVE.  THEY TESTIFIED THAT MEMBERS OF THE COMMISSION HAD
NO PREJUDICE AGAINST THE COLORED RACE; THAT THEY DISCUSSED THE
POSSIBILITY OF SELECTING NEGROES TO SERVE, AND THAT THEY KNEW NEGROES
IN THE COUNTY.  ONE TESTIFIED:  "I PERSONALLY DID NOT KNOW OF A
QUALIFIED NEGRO THAT I THOUGHT WOULD MAKE A GOOD GRAND JUROR."  THE
OTHER TESTIFIED HE DID NOT KNOW WHICH OF THE NEGROES OF HIS
ACQUAINTANCE COULD READ AND WRITE.  BOTH TESTIFIED THAT THEY MADE NO
INVESTIGATION OR INQUIRY TO ASCERTAIN WHETHER THERE WERE NEGROES IN THE
COUNTY QUALIFIED FOR GRAND JURY SERVICE. 

AN ASSISTANT DISTRICT ATTORNEY FOR THE COUNTY, WHO HAD LIVED IN
DALLAS COUNTY FOR TWENTY-SEVEN OR TWENTY-EIGHT YEARS AND HAD SERVED FOR
SIXTEEN YEARS AS A JUDGE OF THE CRIMINAL COURT IN WHICH PETITIONER WAS
TRIED AND CONVICTED, TESTIFIED THAT HE NEVER KNEW OF A NEGRO BEING
CALLED TO SERVE ON A GRAND JURY IN THE COUNTY.  THE DISTRICT CLERK OF
THE COUNTY, WHOSE DUTY IT IS TO CERTIFY THE GRAND JURY LIST TO THE
SHERIFF (ARTICLE 344), KNEW OF NO CITATIONS ISSUED FOR NEGROES TO SERVE
UPON THE GRAND JURY.  A COLORED WITNESS, A PROPERTY OWNER AND POLL TAX
PAYER IN DALLAS COUNTY, ENGAGED IN THE INSURANCE AND BONDING BUSINESS,
AND RESIDENT IN THE COUNTY FOR FIFTY-FOUR YEARS, TESTIFIED THAT HE HAD
OFTEN BEEN CALLED TO SERVE AS A PETIT JUROR BUT HAD NEVER KNOWN OF ANY
COLORED MAN TO BE CALLED AS A GRAND JUROR.  TWO OTHER COLORED
WITNESSES, PROPERTY OWNERS AND POLL TAX PAYERS, WHO HAD LIVED IN THE
COUNTY FOR TWENTY-FIVE YEARS, HAD NEVER KNOWN OF A NEGRO TO BE CALLED
ON A GRAND JURY.  THERE WAS ALSO EVIDENCE ALREADY MENTIONED WHICH THE
TEXAS COURT OF CRIMINAL APPEALS FOUND SUFFICIENT TO SHOW THAT OF THE
66,000 POLL TAX PAYERS IN THE COUNTY 8,000 WERE NEGROES. 

ANOTHER WITNESS ESTIMATED THE TOTAL NEGRO POPULATION OF THE COUNTY AS
55,000.  ACTUALLY THIS WAS AN UNDERESTIMATE, FOR THE 1940 CENSUS SHOWS
THE TOTAL POPULATION OF THE COUNTY TO BE 398,564, OF WHOM 61,605 ARE
NEGROES, AND, OF THESE, 19,133 ARE MALES TWENTY-ONE YEARS OLD OR MORE. 
THE CENSUS OF 1930 SHOWED ONLY 7.5 PERCENT OF THE NEGRO POPULATION OF
THE COUNTY TO BE ILLITERATE.  THE CENSUS DATA OF 1940 SHOW THAT OF THE
17,263 MALE NEGROES IN THE COUNTY WHO WERE TWENTY-FIVE YEARS OF AGE OR
MORE, 16,107 HAD ATTENDED GRADE SCHOOL OR HIGHER INSTITUTIONS OF
LEARNING.  OF THESE, 7,979 HAD ATTENDED GRADE SCHOOL FROM FIVE TO EIGHT
YEARS; 1,970 HAD ATTENDED HIGH SCHOOL FROM ONE TO THREE YEARS, AND
1,124 FOR FOUR YEARS; 466 HAD ATTENDED COLLEGE FROM ONE TO THREE YEARS,
AND 284 FOR FOUR YEARS OR MORE. 

WE THINK PETITIONER MADE OUT A PRIMA FACIE CASE, WHICH THE STATE
FAILED TO MEET, OF RACIAL DISCRIMINATION IN THE SELECTION OF GRAND
JURORS WHICH THE EQUAL PROTECTION CLAUSE FORBIDS.  AS WE POINTED OUT IN
SMITH V. TEXAS, SUPRA, 131, CHANCE OR ACCIDENT COULD HARDLY HAVE
ACCOUNTED FOR THE CONTINUOUS OMISSION OF NEGROES FROM THE GRAND JURY
LISTS FOR SO LONG A PERIOD AS SIXTEEN YEARS OR MORE.  THE JURY
COMMISSIONERS, ALTHOUGH THE MATTER WAS DISCUSSED BY THEM, CONSCIOUSLY
OMITTED TO PLACE THE NAME OF ANY NEGRO ON THE JURY LIST.  THEY MADE NO
EFFORT TO ASCERTAIN WHETHER THERE WERE WITHIN THE COUNTY MEMBERS OF THE
COLORED RACE QUALIFIED TO SERVE AS JURORS, AND IF SO WHO THEY WERE. 
THEY THUS FAILED TO PERFORM THEIR CONSTITUTIONAL DUTY - RECOGNIZED BY
SEC. 4 OF THE CIVIL RIGHTS ACT OF MARCH 1, 1875, 8 U.S.C. SEC. 44, AND
FULLY ESTABLISHED SINCE THE DECISION IN 1881 OF NEAL V. DELAWARE, SUPRA
- NOT TO PURSUE A COURSE OF CONDUCT IN THE ADMINISTRATION OF THEIR
OFFICE WHICH WOULD OPERATE TO DISCRIMINATE IN THE SELECTION OF JURORS
ON RACIAL GROUNDS.  DISCRIMINATION CAN ARISE FROM THE ACTION OF
COMMISSIONERS WHO EXCLUDE ALL NEGROES WHOM THEY DO NOT KNOW TO BE
QUALIFIED AND WHO NEITHER KNOW NOR SEEK TO LEARN WHETHER THERE ARE IN
FACT ANY QUALIFIED TO SERVE.  IN SUCH A CASE, DISCRIMINATION
NECESSARILY RESULTS WHERE THERE ARE QUALIFIED NEGROES AVAILABLE FOR
JURY SERVICE.  WITH THE LARGE NUMBER OF COLORED MALE RESIDENTS OF THE
COUNTY WHO ARE LITERATE, AND IN THE ABSENCE OF ANY COUNTERVAILING
TESTIMONY, THERE IS NO ROOM FOR INFERENCE THAT THERE ARE NOT AMONG THEM
HOUSEHOLDERS OF GOOD MORAL CHARACTER, WHO CAN READ AND WRITE, QUALIFIED
AND AVAILABLE FOR GRAND JURY SERVICE. 

MORE THAN SIXTY YEARS AGO, IN NEAL V. DELAWARE, SUPRA, 397, A CASE
SUBSTANTIALLY LIKE THE PRESENT, THIS COURT LAID DOWN THE RULE WHICH WE
THINK CONTROLLING HERE: 

"THE SHOWING THUS MADE, INCLUDING, AS IT DID, THE FACT (SO GENERALLY
KNOWN THAT THE COURT FELT OBLIGED TO TAKE JUDICIAL NOTICE OF IT) THAT
NO COLORED CITIZEN HAD EVER BEEN SUMMONED AS A JUROR IN THE COURTS OF
THE STATE,  - ALTHOUGH ITS COLORED POPULATION EXCEEDED TWENTY THOUSAND
IN 1870, AND IN 1880 EXCEEDED TWENTY-SIX THOUSAND, IN A TOTAL
POPULATION OF LESS THAN ONE HUNDRED AND FIFTY THOUSAND,  - PRESENTED A
PRIMA FACIE CASE OF DENIAL, BY THE OFFICERS CHARGED WITH THE SELECTION
OF GRAND AND PETIT JURORS, OF THAT EQUALITY OF PROTECTION WHICH HAS
BEEN SECURED BY THE CONSTITUTION AND LAWS OF THE UNITED STATES.  IT
WAS, WE THINK, UNDER ALL THE CIRCUMSTANCES, A VIOLENT PRESUMPTION WHICH
THE STATE COURT INDULGED, THAT SUCH UNIFORM EXCLUSION OF THAT RACE FROM
JURIES, DURING A PERIOD OF MANY YEARS, WAS SOLELY BECAUSE, IN THE
JUDGMENT OF THOSE OFFICERS, FAIRLY EXERCISED, THE BLACK RACE IN
DELAWARE WERE UTTERLY DISQUALIFIED, BY WANT OF INTELLIGENCE,
EXPERIENCE, OR MORAL INTEGRITY, TO SIT ON JURIES." 

AND RECENTLY WE HELD IN PIERRE V. LOUISIANA, SUPRA, THAT A PRIMA
FACIE CASE OF RACE DISCRIMINATION HAD BEEN ESTABLISHED WHERE THERE HAD
BEEN A LONG-CONTINUED FAILURE TO SELECT COLORED CITIZENS FOR SERVICE ON
GRAND JURIES IN A COUNTY, 50 PER CENT OF WHOSE POPULATION, OR
APPROXIMATELY 7,000, WERE COLORED, OF WHOM FROM 70 TO 80 PER CENT WERE
SHOWN TO BE LITERATE.  WE THOUGHT, AS WE THINK HERE, THAT HAD THERE
BEEN EVIDENCE OBTAINABLE TO CONTRADICT THE INFERENCE TO BE DRAWN FROM
THIS TESTIMONY, THE STATE WOULD NOT HAVE REFRAINED FROM INTRODUCING IT,
AND THAT THE EVIDENCE WHICH WAS INTRODUCED SUFFICIENTLY SHOWED THAT
THERE WERE COLORED CITIZENS OF THE COUNTY QUALIFIED AND AVAILABLE FOR
SERVICE ON THE GRAND JURY. 

A PRISONER WHOSE CONVICTION IS REVERSED BY THIS COURT NEED NOT GO
FREE IF HE IS IN FACT GUILTY, FOR TEXAS MAY INDICT AND TRY HIM AGAIN BY
THE PROCEDURE WHICH CONFORMS TO CONSTITUTIONAL REQUIREMENTS.  BUT NO
STATE IS AT LIBERTY TO IMPOSE UPON ONE CHARGED WITH CRIME A
DISCRIMINATION IN ITS TRIAL PROCEDURE WHICH THE CONSTITUTION, AND AN
ACT OF CONGRESS PASSED PURSUANT TO THE CONSTITUTION, ALIKE FORBID.  NOR
IS THIS COURT AT LIBERTY TO GRANT OR WITHHOLD THE BENEFITS OF EQUAL
PROTECTION, WHICH THE CONSTITUTION COMMANDS FOR ALL, MERELY AS WE MAY
DEEM THE DEFENDANT INNOCENT OR GUILTY.  TUMEY V. OHIO, 273 U.S. 510,
535.  IT IS THE STATE'S FUNCTION, NOT OURS, TO ASSESS THE EVIDENCE
AGAINST A DEFENDANT.  BUT IT IS OUR DUTY AS WELL AS THE STATE'S TO SEE
TO IT THAT THROUGHOUT THE PROCEDURE FOR BRINGING HIM TO JUSTICE HE
SHALL ENJOY THE PROTECTION WHICH THE CONSTITUTION GUARANTEES.  WHERE,
AS IN THIS CASE, TIMELY OBJECTION HAS LAID BARE A DISCRIMINATION IN THE
SELECTION OF GRAND JURORS, THE CONVICTION CANNOT STAND, BECAUSE THE
CONSTITUTION PROHIBITS THE PROCEDURE BY WHICH IT WAS OBTAINED.  EQUAL
PROTECTION OF THE LAWS IS SOMETHING MORE THAN AN ABSTRACT RIGHT.  IT IS
A COMMAND WHICH THE STATE MUST RESPECT, THE BENEFITS OF WHICH EVERY
PERSON MAY DEMAND.  NOT THE LEAST MERIT OF OUR CONSTITUTIONAL SYSTEM IS
THAT ITS SAFEGUARDS EXTEND TO ALL - THE LEAST DESERVING AS WELL AS THE
MOST VIRTUOUS.  REVERSED. 
..END :


















COLUMBIA SYSTEM V. U.S., 316 U.S. 407 


NO. 1026.  ARGUED MAY 1, 1942.  - DECIDED JUNE 1, 1942.  - 44 F.SUPP. 
688, REVERSED. 


1.  TO MAINTAIN A SUIT UNDER SEC. 402(A) OF THE FEDERAL COMMUNICATIONS
ACT OF 1934, AND THE URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, 38
STAT. 219, 220, THE ACTION OF THE COMMISSION SOUGHT TO BE SET ASIDE
MUST BE AN "ORDER," AND THE BILL MUST STATE A CAUSE OF ACTION IN
EQUITY.  P. 415. 

2.  WHERE REGULATIONS PROMULGATED BY ORDER OF THE FEDERAL
COMMUNICATIONS COMMISSION IN THE EXERCISE OF ITS RULE-MAKING POWER, TO
GOVERN ITS POLICY AND ACTION IN THE LICENSING OF BROADCASTING STATIONS,
PROVIDE THAT THERE SHALL BE NO RENEWAL OF THE LICENSES OF STATIONS
WHOSE CONTRACTS WITH A BROADCASTING NETWORK CONTAIN CERTAIN PROVISIONS
PROSCRIBED BY THE COMMISSION AND THAT SUCH LICENSES MAY BE REVOKED,
WHICH REGULATIONS IF VALID ALTER THE CONTRACTUAL RIGHTS OF THE
NETWORKS, A NETWORK ORGANIZATION WHOSE BUSINESS IS SO DEPENDENT UPON
THE MAINTENANCE AND RENEWAL OF SUCH CONTRACTS THAT THEIR CANCELLATION,
OR THE THREAT OF IT, WILL CAUSE IRREPARABLE INJURY TO ITS ENTERPRISE
AND PROPERTY, IS ENTITLED TO A JUDICIAL REVIEW OF THE ORDER AND
REGULATIONS WHOSE VALIDITY IS CHALLENGED, BY A SUIT BROUGHT UNDER SEC.
402(A) OF THE FEDERAL COMMUNICATIONS ACT OF 1934, WITHOUT AWAITING
ACTION BY THE COMMISSION FOR ENFORCEMENT OF THE REGULATIONS AGAINST A
STATION LICENSEE.  PP. 416, 425. 

COLUMBIA BROADCASTING SYSTEM, INC. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF THE DISTRICT COURT DISMISSING FOR WANT OF
JURISDICTION A BILL TO SET ASIDE AN ORDER OF THE FEDERAL COMMUNICATIONS
COMMISSION. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL COMMUNICATIONS COMMISSION, BY ITS ORDER OF MAY 2, 1941, AS
AMENDED BY ITS ORDER OF OCTOBER 11, 1941, PROMULGATED REGULATIONS WHICH
PURPORT TO REQUIRE THE COMMISSION TO REFUSE TO GRANT A LICENSE TO ANY
BROADCASTING STATION WHICH ENTERS INTO CERTAIN DEFINED TYPES OF
CONTRACT WITH ANY BROADCASTING NETWORK ORGANIZATION.  THESE
REGULATIONS, IT IS ALLEGED, AFFECT ADVERSELY APPELLANT'S CONTRACTUAL
RELATIONS WITH BROADCASTING STATIONS AND IMPAIR ITS ABILITY TO CARRY ON
ITS BUSINESS IN MAINTAINING AND OPERATING ITS NATIONWIDE BROADCASTING
NETWORK.  THE REGULATIONS AS AMENDED ON OCTOBER 11, 1941, TOGETHER WITH
A SUPPLEMENTAL "MINUTE" PROMULGATED BY THE COMMISSION ON OCTOBER 31,
1941, ARE SET FORTH AT THE END OF THIS OPINION, POST, P. 425.  THE
QUESTION FOR OUR DECISION IS WHETHER APPELLANT IS ENTITLED TO SECURE A
JUDICIAL REVIEW OF THE ORDER BY A SUIT BROUGHT UNDER SEC. 402(A) OF THE
COMMUNICATIONS ACT OF 1934, 48 STAT. 1093, 47 U.S.C. SEC. 402(A), AND
THE URGENT DEFICIENCIES ACT, 38 STAT. 219, 28 U.S.C. SEC. 47. 

PURSUANT TO SEC. 402(A) APPELLANT BROUGHT THE PRESENT SUIT AGAINST
THE UNITED STATES IN THE SOUTHERN DISTRICT OF NEW YORK, TO ENJOIN
ENFORCEMENT OF THE COMMISSION'S ORDER AS CONTRARY TO THE PUBLIC
INTEREST AND BEYOND THE COMMISSION'S STATUTORY AUTHORITY, AND ON THE
FURTHER GROUND, IF THE ORDER BE DEEMED WITHIN THAT AUTHORITY, THAT THE
STATUTE IS AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER BY
CONGRESS IN VIOLATION OF ARTICLE I, SEC. 1 OF THE CONSTITUTION, AND
OPERATES TO DEPRIVE APPELLANT OF PROPERTY WITHOUT DUE PROCESS OF LAW IN
VIOLATION OF THE FIFTH AMENDMENT.  THE CASE WAS HEARD BY A COURT OF
THREE JUDGES, WHICH PERMITTED THE COMMISSION AND THE MUTUAL
BROADCASTING COMPANY TO INTERVENE AS DEFENDANTS.  IT GRANTED APPELLEES'
MOTION TO DISMISS THE COMPLAINT FOR WANT OF JURISDICTION, 44 F.SUPP. 
688, AND STAYED THE OPERATION OF THE COMMISSION'S ORDER PENDING DIRECT
APPEAL TO THIS COURT. 

IN 1938 THE COMMUNICATIONS COMMISSION AUTHORIZED AN INVESTIGATION "TO
DETERMINE WHAT SPECIAL REGULATIONS APPLICABLE TO RADIO STATIONS ENGAGED
IN CHAIN OR OTHER BROADCASTING ARE REQUIRED IN THE PUBLIC INTEREST,
CONVENIENCE, OR NECESSITY."  EXTENSIVE HEARINGS WERE HELD BY A
COMMITTEE CONSISTING OF THREE MEMBERS OF THE COMMISSION, AT WHOSE
REQUEST THE NATIONAL NETWORKS, INCLUDING APPELLANT, INTERVENED.  IN
JUNE, 1940, THE COMMITTEE MADE A REPORT, ON THE BASIS OF WHICH BRIEFS
WERE FILED AND ORAL ARGUMENT WAS PRESENTED BEFORE THE FULL COMMISSION
BY THE THREE NATIONAL NETWORKS AND OTHER INTERESTED PARTIES.  IN MAY,
1941, THE COMMISSION ISSUED ITS "REPORT ON CHAIN BROADCASTING" AND
ORDERED THE ADOPTION OF THE REGULATIONS WHICH, IN THEIR AMENDED FORM,
ARE THE SUBJECT OF THE PRESENT CONTROVERSY. 

THE RELEVANT FACTS STATED IN THE BILL OF COMPLAINT ARE AS FOLLOWS:
APPELLANT OR ITS PREDECESSOR HAS BEEN ENGAGED IN THE BUSINESS OF
NATIONWIDE NETWORK OR CHAIN BROADCASTING SINCE 1927.  IT HAS A LARGE
AMOUNT OF PHYSICAL PROPERTY USED IN THE BUSINESS AND HAS BUILT UP A
VALUABLE GOODWILL.  FOR ITS BROADCASTS IT MAINTAINS A STAFF OF
EMPLOYEES AND EXPENDS LARGE AMOUNTS FOR MUSICIANS AND BROADCASTING
PERFORMERS.  IT HAS COMMITMENTS BY LONG-TERM CONTRACTS AGGREGATING MORE
THAN $4,000,000 FOR BROADCASTING EXPENDITURES, INCLUDING THOSE FOR THE
USE OF LAND AND BUILDINGS AND FOR THE FURNISHING OF NEWS AND
BROADCASTING PROGRAMS IN THE NEXT FEW YEARS.  APPELLANT'S TOTAL
PROPERTY DEVOTED TO ITS BROADCASTING BUSINESS EXCEEDS $18,000,000 IN
VALUE; ITS EARNINGS FROM THE NETWORK EXCEEDED $3,000,000 IN BOTH 1939
AND 1940. 

CHAIN BROADCASTING IS THE MEANS BY WHICH RADIO PROGRAMS ARE MADE
AVAILABLE TO ALL OR A LARGE PART OF THE NATIONWIDE RADIO AUDIENCE.  IT
IS DEFINED BY THE COMMUNICATIONS ACT, 47 U.S.C. SEC. 153(P), AS THE
"SIMULTANEOUS BROADCASTING OF AN IDENTICAL PROGRAM BY TWO OR MORE
CONNECTED STATIONS."  THE CHAIN BROADCASTER PREPARES RADIO PROGRAMS,
FOR WHICH IT ENGAGES PERFORMERS IN ADVANCE, AND SIMULTANEOUSLY
BROADCASTS THEM OVER A LARGE NUMBER OF RADIO STATIONS TO WHICH THE
PROGRAMS ARE TRANSMITTED FROM SOME CENTRAL POINT OF ORIGINATION BY WIRE
TELEPHONE LINES LEASED BY THE BROADCASTER, HERE THE APPELLANT.  THE
PROGRAMS, WHICH ARE PREPARED WELL IN ADVANCE OF THE BROADCAST AND GIVEN
BY PERSONS EMPLOYED FOR THE PURPOSE BY APPELLANT, ARE OF TWO CLASSES -
COMMERCIAL PROGRAMS SPONSORED AND PAID FOR BY ADVERTISERS, AND
SUSTAINING PROGRAMS FURNISHED BY APPELLANT AND NOT PAID FOR BY ANY
ADVERTISER. 

APPELLANT'S NETWORK COMPRISES 123 STATIONS IN 122 CITIES IN THE
UNITED STATES.  IT IS SO OPERATED AS TO ENABLE NINETY PER CENT OF THE
RADIO AUDIENCE OF THE UNITED STATES TO LISTEN SIMULTANEOUSLY TO
PROGRAMS PROVIDED BY APPELLANT AND BROADCASTED OVER THESE STATIONS. 
APPELLANT OWNS AND OPERATES SEVEN OF THE STATIONS AND LEASES AN EIGHTH,
ALL LICENSED BY THE COMMISSION.  WITH THE REMAINING 115 STATIONS IT
ENTERS INTO INDIVIDUAL CONTRACTS, USUALLY FOR PERIODS OF FIVE YEARS,
TERMINABLE IN SOME INSTANCES BY APPELLANT ON TWELVE MONTHS' NOTICE.  BY
THESE CONTRACTS, APPELLANT UNDERTAKES TO FURNISH EACH STATION WITH AN
AVERAGE OF AT LEAST SIXTY HOURS PER WEEK OF NETWORK SUSTAINING AND
SPONSORED PROGRAMS.  THE SUSTAINING PROGRAMS ARE FURNISHED WITHOUT
CHARGE, THE STATION BEING FREE TO USE THEM OR NOT AS IT CHOOSES. 
APPELLANT UNDERTAKES TO FURNISH THE STATION WITH ALL COMMERCIAL
PROGRAMS WHICH THE SPONSOR REQUESTS THE STATION TO BROADCAST AND TO PAY
THE STATION A SPECIFIED HOURLY RATE FOR THE USE OF ITS FACILITIES IN
BROADCASTING SUCH PROGRAMS.  APPELLANT AGREES NOT TO FURNISH ITS
PROGRAMS TO OTHER STATIONS IN THE SAME CITY; THE AFFILIATED STATION,
WITH EXCEPTIONS NOT NOW MATERIAL, AGREES NOT TO BROADCAST THE PROGRAM
OF ANY OTHER NETWORK.  OF CRITICAL IMPORTANCE IN THE PRESENT LITIGATION
IS THE STIPULATION OF THE AFFILIATED STATION THAT IT WILL, UPON NOT
LESS THAN TWENTY-EIGHT DAYS' NOTICE FROM APPELLANT, BROADCAST THE
SPONSORED OR COMMERCIAL PROGRAM FURNISHED TO IT BY APPELLANT FOR AT
LEAST FIFTY "CONVERTED" HOURS (AVERAGING SEVENTY-NINE REGULAR CLOCK
HOURS) PER WEEK. 

THESE PROVISIONS OF APPELLANT'S CONTRACTS ARE ALLEGED TO BE
INDISPENSABLE TO THE MAINTENANCE AND EFFICIENT OPERATION OF ITS NETWORK
AND TO THE EXISTENCE OF A STRONG AND EFFICIENT NETWORK BROADCASTING
SYSTEM, AND NECESSARY TO ENABLE APPELLANT TO COMPETE WITH OTHER
ADVERTISING MEDIA.  ON MAY 2, 1941, THE COMMISSION ISSUED ITS ORDER
WHICH, AS AMENDED BY ITS ORDER OF OCTOBER 11, 1941, PROMULGATED THE
"CHAIN BROADCASTING REGULATIONS" OF WHICH APPELLANT COMPLAINS, AND
WHICH THE COMMISSION CHARACTERIZED IN ITS REPORT AS "THE EXPRESSION OF
THE GENERAL POLICY WE WILL FOLLOW IN EXERCISING OUR LICENSING POWER." 
FN1  THE REGULATIONS PROVIDE THAT NO LICENSE SHALL BE GRANTED TO A
BROADCAST STATION HAVING CONTRACTS WITH A NETWORK ORGANIZATION,
CONTAINING ANY OF SEVERAL PROVISIONS WHICH ARE CHARACTERISTIC OF
APPELLANT'S CONTRACTS WITH ITS AFFILIATES.  THESE INCLUDE PROVISIONS BY
WHICH THE STATION IS PREVENTED FROM BROADCASTING THE PROGRAMS OF ANY
OTHER NETWORK ORGANIZATION (3.101); OR WHICH PREVENT ANOTHER STATION
SERVING SUBSTANTIALLY THE SAME AREA FROM BROADCASTING THE NETWORK
PROGRAMS NOT TAKEN BY THE STATION APPLYING FOR LICENSE, OR PREVENT
ANOTHER STATION SERVING A SUBSTANTIALLY DIFFERENT AREA FROM
BROADCASTING ANY PROGRAM OF THE NETWORK ORGANIZATION (3.102); OR BY
WHICH THE STATION CONTRACTS FOR AFFILIATION WITH THE NETWORK FOR A
PERIOD LONGER THAN TWO YEARS (3.103); OR BY WHICH THE STATION "OPTIONS
FOR NETWORK PROGRAMS ANY TIME SUBJECT TO CALL ON LESS THAN 56 DAYS'
NOTICE OR MORE TIME THAN A TOTAL OF THREE HOURS" WITHIN EACH OF FOUR
SPECIFIED SEGMENTS OF THE BROADCAST DAY, THE REGULATION DECLARING "SUCH
OPTIONS MAY NOT BE EXCLUSIVE AS AGAINST OTHER NETWORK ORGANIZATIONS AND
MAY NOT PREVENT OR HINDER THE STATION FROM OPTIONING OR SELLING ANY OR
ALL OF THE TIME COVERED BY THE OPTION, OR OTHER TIME, TO OTHER NETWORK
ORGANIZATIONS" (3.104); OR WHICH PREVENT THE STATION (A) FROM REJECTING
NETWORK PROGRAMS WHICH THE STATION REASONABLY BELIEVES TO BE
UNSATISFACTORY OR UNSUITABLE OR (B) FROM SUBSTITUTING FOR THE NETWORK
PROGRAM A PROGRAM OF OUTSTANDING LOCAL OR NATIONAL IMPORTANCE (3.105). 

AFTER MAKING ITS ORDER OF MAY 2, 1941, THE COMMISSION DEFERRED ITS
EFFECTIVE DATE UNTIL FURTHER ORDER.  BY ITS ORDER OF OCTOBER 11, 1941,
THE COMMISSION FIXED THE EFFECTIVE DATE AS NOVEMBER 15, 1941, AND
DIRECTED "THAT THE EFFECTIVE DATE OF REGULATION 3.106 WITH RESPECT TO
ANY STATION MAY BE EXTENDED FROM TIME TO TIME IN ORDER TO PERMIT THE
ORDERLY DISPOSITION OF PROPERTIES," AND "THAT THE EFFECTIVE DATE OF
REGULATION 3.107 SHALL BE SUSPENDED INDEFINITELY AND ANY FURTHER ORDER
OF THE COMMISSION PLACING SAID REGULATION 3.107 IN EFFECT SHALL PROVIDE
FOR NOT LESS THAN SIX MONTHS' NOTICE AND FOR FURTHER EXTENSION OF THE
EFFECTIVE DATE FROM TIME TO TIME IN ORDER TO PERMIT THE ORDERLY
DISPOSITION OF PROPERTIES." 

THE BILL OF COMPLAINT ALSO ALLEGES THAT THE PURPOSE AND EFFECT OF THE
REGULATIONS ARE TO PROHIBIT STATION LICENSEES FROM HAVING AGREEMENTS OF
THE KIND WHICH APPELLANT HAS WITH ITS AFFILIATES; THAT PRIOR TO THE
ORDER OF MAY 2, 1941, IT WAS THE PRACTICE OF THE COMMISSION TO RENEW
THE LICENSES OF STATIONS ANNUALLY AND THAT THE LICENSED STATIONS HAVE
HAD A REASONABLE EXPECTANCY OF THE ANNUAL RENEWAL OF THEIR LICENSES;
THAT 115 LICENSED STATIONS HAVE SUCH CONTRACTS WITH APPELLANT, EXPIRING
AT VARIOUS TIMES BETWEEN THE ORIGINAL EFFECTIVE DATE OF THE REGULATIONS
AND DECEMBER 31, 1947.  IT IS ALLEGED THAT WHEN THEIR CURRENT LICENSES
EXPIRE, AT THE LATEST, AND PERHAPS EARLIER THROUGH THE REVOCATION OF
EXISTING LICENSES, SUCH STATIONS FACE THE LOSS OF THEIR LICENSES IF
THEY PERFORM OR CONTINUE IN FORCE OR RENEW ANY EXISTING CONTRACTS
CONTAINING THE DESCRIBED PROVISIONS. 

THE BILL ALLEGES THAT SINCE THE STATIONS FEAR THE LOSS OF THEIR
LICENSES, AS A RESULT OF THE REGULATIONS, THEY WILL NOT NEGOTIATE FOR
OR RENEW AFFILIATION CONTRACTS CONTAINING SUCH PROVISIONS.  AND BECAUSE
THEY FEAR THE LOSS OF THEIR LICENSES, THE STATIONS HAVE THREATENED TO
CANCEL AND REPUDIATE THEIR AFFILIATION CONTRACTS, AND MANY HAVE
NOTIFIED APPELLANT THAT THEY WILL NOT BE BOUND BY THEIR CONTRACTS AFTER
THE REGULATIONS BECOME EFFECTIVE.  AS A CONSEQUENCE, APPELLANT'S
ABILITY TO CONDUCT ITS BUSINESS AND MAINTAIN ITS PUBLIC BROADCASTING
SERVICE IS SERIOUSLY IMPAIRED AND THE REGULATIONS WILL MAKE THE
OPERATION OF APPELLANT'S BUSINESS MORE COSTLY, REDUCE ITS EARNINGS AND
RENDER ITS PROPERTY AND BUSINESS LESS VALUABLE. 

THE BILL OF COMPLAINT WAS FILED OCTOBER 30, 1941.  THE FOLLOWING DAY
THE COMMISSION PROMULGATED A SUPPLEMENTAL "MINUTE" SETTING UP A
PROCEDURE BY WHICH THE VALIDITY OF THE REGULATIONS MIGHT BE TESTED UPON
APPLICATION FOR A LICENSE BY AN INDIVIDUAL LICENSEE.  THE MINUTE
DECLARED THAT IF A STATION WISHED TO CHALLENGE THE REGULATIONS THE
COMMISSION WOULD GRANT A TEMPORARY EXTENSION OF ITS LICENSE UNTIL THERE
HAD BEEN A FINAL COURT DETERMINATION OF THE ISSUES.  IN THE EVENT OF
SUCH LITIGATION, AND IF THE VALIDITY OF THE REGULATIONS WERE SUSTAINED,
"THE COMMISSION WILL NEVERTHELESS GRANT A REGULAR LICENSE TO THE
LICENSEE, OTHERWISE ENTITLED THERETO, WHO HAS UNSUCCESSFULLY LITIGATED
THAT ISSUE, IF THE LICENSEE THEREUPON CONFORMS TO THE DECISION." 

AN AFFIDAVIT SUBSEQUENTLY SUBMITTED BY APPELLANT IN SUPPORT OF ITS
MOTION FOR A TEMPORARY INJUNCTION STATES THAT SINCE THE COMMISSION'S
MINUTE OF OCTOBER 31ST, APPELLANT HAS CONTINUED TO RECEIVE INDICATIONS
THAT ITS AFFILIATES WILL CANCEL AND REPUDIATE THEIR CONTRACTS AND
REFUSE TO RENEW THEM, AND HAS RECEIVED NO INDICATION THAT THE MINUTE
HAS OR WILL HAVE THE EFFECT OF INDUCING STATIONS TO ASSUME THE BURDEN
OF TESTING THE VALIDITY OF THE REGULATIONS.  ATTACHED TO THE AFFIDAVIT
ARE LETTERS FROM FIVE AFFILIATES, WRITTEN AFTER OCTOBER 31ST,
INDICATING THEIR INTENTION NOT TO BE BOUND BY THE CONTRACTS.  THE
AFFIDAVIT ALSO STATES APPELLANT'S BELIEF THAT IT WOULD HAVE RECEIVED
MORE SUCH LETTERS HAD IT NOT BEEN FOR ITS CIRCULATION OF INFORMATION
CONCERNING THE PENDENCY OF THIS SUIT. 

ACCEPTING THE ALLEGATIONS OF THE COMPLAINT AS TRUE, AS FOR PRESENT
PURPOSES WE MUST, IT IS EVIDENT THAT APPLICATION BY THE COMMISSION OF
ITS REGULATIONS IN ACCORDANCE WITH THEIR TERMS WOULD DISRUPT
APPELLANT'S BROADCASTING SYSTEM AND SERIOUSLY DISORGANIZE ITS
BUSINESS.  AS THE BILL ALLEGES, STATION LICENSES HAVE BEEN RENEWABLE BY
THE COMMISSION ANNUALLY,  FN2  WHEREAS APPELLANT'S CONTRACTS ARE FOR
FIVE YEAR PERIODS AND MANY OF THEM WILL SURVIVE THE EXPIRATION OF THE
EXISTING LICENSES TO THE AFFILIATED STATIONS.  UNDER REGULATIONS 3.101,
3.102, 3.103 AND 3.104, EACH AFFILIATE MUST REPUDIATE HIS CONTRACT OR
BE DENIED THE RENEWAL OF HIS LICENSE.  IN EITHER CASE, THIS WOULD
DEPRIVE APPELLANT OF THE STATION'S PARTICIPATION IN ITS NETWORK, FOR
WHICH ITS CONTRACTS CALL.    REGULATION 3.104 NOT ONLY REQUIRES ALL
OPTIONS BY APPELLANT TO BE EXERCISED ON 56 DAYS' RATHER THAN 28 DAYS'
NOTICE AS AT PRESENT, BUT PROVIDES THAT NO OPTION TIME IS EXCLUSIVE OF
OTHER NETWORKS, AND THUS ALLOWS TO APPELLANT NO OPTION TIME WITHIN
WHICH IT CAN COMMAND THE USE OF AFFILIATED STATIONS FOR ANY PROGRAM FOR
BROADCASTING ON A NATIONAL SCALE.  THESE SECTIONS TOGETHER THUS OPERATE
TO BREAK DOWN THE NETWORK ENTERPRISE IN WHICH APPELLANT AND ITS
AFFILIATES ARE BY THEIR CONTRACTS COOPERATING, AND TO SUBSTITUTE A
SYSTEM IN WHICH EVERY STATION IS AVAILABLE TO EVERY NETWORK ON A "FIRST
COME FIRST SERVED BASIS."    THE COMMISSION CONCEDES BY ITS BRIEF THAT,
AS PROVIDED BY SEC. 312(A), "ANY STATION LICENSE MAY BE REVOKED  ...
BECAUSE OF CONDITIONS REVEALED BY SUCH STATEMENTS OF FACT AS MAY BE
REQUIRED (OF A LICENSEE) FROM TIME TO TIME WHICH WOULD WARRANT THE
COMMISSION IN REFUSING TO GRANT A LICENSE ON AN ORIGINAL APPLICATION." 
CONSEQUENTLY THE REGULATIONS BY THEIR TERMS, READ IN CONJUNCTION WITH
SEC. 312(A), EXPOSE LICENSEES, WHO RENEW THEIR AFFILIATION CONTRACTS,
TO REVOCATION PROCEEDINGS BY THE COMMISSION WHENEVER, UPON A STATEMENT
WHICH THE COMMISSION MAY REQUIRE, IT APPEARS THAT THE LICENSEE HAS
ENTERED INTO AN AFFILIATION CONTRACT WHICH THE REGULATIONS PROSCRIBE. 

A PROCEEDING TO SET ASIDE AN ORDER OF THE COMMISSION UNDER SEC.
402(A) AND THE URGENT DEFICIENCIES ACT IS A PLENARY SUIT IN EQUITY. 
HENCE THE QUESTIONS RAISED BY THE MOTION TO DISMISS ARE WHETHER THE
COMMISSION'S ORDER IS AN "ORDER," REVIEW OF WHICH IS AUTHORIZED BY SEC.
402(A) OF THE ACT, AND IF SO WHETHER THE BILL STATES A CAUSE OF ACTION
IN EQUITY.  THE SUIT CANNOT BE MAINTAINED UNLESS BOTH QUESTIONS ARE
ANSWERED IN THE AFFIRMATIVE. 

DEFICIENCIES ACT TO "SUITS TO ENFORCE, ENJOIN, SET ASIDE, ANNUL, OR
SUSPEND ANY ORDER OF THE COMMISSION" EXCEPT ORDERS "GRANTING OR
REFUSING AN APPLICATION FOR A CONSTRUCTION PERMIT FOR A RADIO STATION,
OR FOR A RADIO STATION LICENSE, OR FOR RENEWAL OF AN EXISTING RADIO
STATION LICENSE, OR FOR MODIFICATION OF AN EXISTING RADIO STATION
LICENSE, OR SUSPENDING A RADIO OPERATOR'S LICENSE."  REVIEW OF THE
ORDERS EXCEPTED FROM SEC. 402(A) IS BY APPEAL TO THE COURT OF APPEALS
OF THE DISTRICT OF COLUMBIA UNDER THE PROVISIONS OF SEC. 402(B).  SEE
SCRIPPS-HOWARD RADIO V. FEDERAL COMMUNICATIONS COMM'N, ANTE, P. 4. 
SINCE THE COMMISSION'S ORDER NEITHER GRANTS, DENIES NOR MODIFIES ANY
LICENSE, ANY REVIEW IN ADVANCE OR INDEPENDENTLY OF AN APPLICATION FOR A
STATION LICENSE MUST BE UNDER SEC. 402(A), AND THEN ONLY IF THE
COMMISSION'S ORDER PROMULGATING THE REGULATIONS IS AN "ORDER" WITHIN
THE MEANING OF THIS SECTION.  THE PARTICULAR LABEL PLACED UPON IT BY
THE COMMISSION IS NOT NECESSARILY CONCLUSIVE, FOR IT IS THE SUBSTANCE
OF WHAT THE COMMISSION HAS PURPORTED TO DO AND HAS DONE WHICH IS
DECISIVE.  POWELL V. UNITED STATES, 300 U.S. 276, 284-85; A.F. OF L. V.
LABOR BOARD, 308 U.S. 401, 408. 

THE COMMISSION'S INVESTIGATION OF THE CONTRACTUAL RELATIONS BETWEEN
THE NETWORKS AND THE STATIONS, WHICH RESULTED IN THE ORDER NOW UNDER
ATTACK, WAS FOR THE STATED PURPOSE OF PRESCRIBING REGULATIONS OF SUCH
RELATIONSHIPS.  THE ORDER AUTHORIZING THE INVESTIGATION RECITED THAT
THE PROCEEDING WAS TAKEN UNDER SEC. 303(I) OF THE ACT, WHICH GIVES THE
COMMISSION "AUTHORITY TO MAKE SPECIAL REGULATIONS APPLICABLE TO RADIO
STATIONS ENGAGED IN CHAIN BROADCASTING."  SINCE THE COMMISSION IS NOT
IN TERMS GIVEN AUTHORITY TO REGULATE CONTRACTUAL RELATIONS BETWEEN THE
STATIONS AND THE NETWORKS, REGULATION OF THEM COULD BE ACCOMPLISHED
ONLY BY REGULATING LICENSED RADIO STATIONS WHICH PARTICIPATE IN CHAIN
BROADCASTING.  IT WAS BY REGULATIONS IN TERMS APPLICABLE TO SUCH
STATIONS THAT THE COMMISSION SOUGHT TO CONTROL THEIR CONTRACTUAL
RELATIONSHIPS WITH THE NETWORKS. 

THE ORDER IS THUS IN ITS GENESIS AND ON ITS FACE, AND IN ITS
PRACTICAL OPERATION, AN ORDER PROMULGATING REGULATIONS WHICH OPERATE TO
CONTROL SUCH CONTRACTUAL RELATIONSHIPS, AND IT WAS ADOPTED BY THE
COMMISSION IN THE AVOWED EXERCISE OF ITS RULE-MAKING POWER.  SUCH
REGULATIONS WHICH AFFECT OR DETERMINE RIGHTS GENERALLY, EVEN THOUGH NOT
DIRECTED TO ANY PARTICULAR PERSON OR CORPORATION, WHEN LAWFULLY
PROMULGATED BY THE INTERSTATE COMMERCE COMMISSION, HAVE THE FORCE OF
LAW AND ARE ORDERS REVIEWABLE UNDER THE URGENT DEFICIENCIES ACT. 
ASSIGNED CAR CASES, 274 U.S. 564; UNITED STATES V. B. & O.R. CO., 293
U.S. 454.  AND REGULATIONS OF LIKE CHARACTER, BY WHICH THE
COMMUNICATIONS COMMISSION HAS PRESCRIBED GENERALLY THE RECORDS AND
ACCOUNTS TO BE KEPT BY TELEPHONE COMPANIES SUBJECT TO ITS JURISDICTION,
ARE SIMILARLY REVIEWABLE UNDER SEC. 402(A).  A.T. & T. CO. V. UNITED
STATES, 299 U.S. 232. 

THE REGULATIONS HERE PRESCRIBE RULES WHICH GOVERN THE CONTRACTUAL
RELATIONSHIPS BETWEEN THE STATIONS AND THE NETWORKS.  IF THE APPLICANT
FOR A LICENSE HAS ENTERED INTO AN AFFILIATION CONTRACT, THE REGULATIONS
REQUIRE THE COMMISSION TO REJECT HIS APPLICATION.  IF A LICENSEE RENEWS
HIS CONTRACT, THE REGULATIONS, WITH THE SANCTION OF SEC. 312(A),
AUTHORIZE THE COMMISSION TO CANCEL HIS LICENSE.  IN A PROCEEDING FOR
REVOCATION OR CANCELLATION OF A LICENSE, THE DECISIVE QUESTION IS
WHETHER THE STATION, BY ENTERING INTO A CONTRACT, HAS FORFEITED ITS
RIGHT TO A LICENSE AS THE REGULATIONS PRESCRIBE.  IT IS THE SIGNING OF
THE CONTRACT WHICH, BY VIRTUE OF THE REGULATIONS ALONE, HAS LEGAL
CONSEQUENCES TO THE STATIONS AND TO APPELLANT.  THE REGULATIONS ARE NOT
ANY THE LESS REVIEWABLE BECAUSE THEIR PROMULGATION DID NOT OPERATE OF
THEIR OWN FORCE TO DENY OR CANCEL A LICENSE.  IT IS ENOUGH THAT FAILURE
TO COMPLY WITH THEM PENALIZES LICENSEES, AND APPELLANT, WITH WHOM THEY
CONTRACT.  IF AN ADMINISTRATIVE ORDER HAS THAT EFFECT IT IS REVIEWABLE
AND IT DOES NOT CEASE TO BE SO MERELY BECAUSE IT IS NOT CERTAIN WHETHER
THE COMMISSION WILL INSTITUTE PROCEEDINGS TO ENFORCE THE PENALTY
INCURRED UNDER ITS REGULATIONS FOR NONCOMPLIANCE.  ASSIGNED CAR CASES,
SUPRA; A.T. & T. CO. V. UNITED STATES, SUPRA. 

THE REGULATIONS ARE RULES WHICH IN PROCEEDINGS BEFORE THE COMMISSION
REQUIRE IT TO REJECT AND AUTHORIZE IT TO CANCEL LICENSES ON THE GROUNDS
SPECIFIED IN THE REGULATIONS WITHOUT MORE.  IF THE REGULATIONS ARE
VALID THEY ALTER THE STATUS OF APPELLANT'S CONTRACTS AND THUS DETERMINE
THEIR VALIDITY IN ADVANCE OF SUCH PROCEEDINGS.  BY STRIKING THEM DOWN
BY A DETERMINATION PROCLAIMED IN ADVANCE THAT LICENSES SHALL BE
CANCELLED OR REFUSED BECAUSE OF A PREVIOUS FAILURE TO COMPLY WITH THE
REGULATIONS, THEY IMPOSE A PENALTY AND SANCTION FOR NONCOMPLIANCE FAR
MORE DRASTIC THAN THE FINES CUSTOMARILY INFLICTED FOR BREACH OF
REVIEWABLE ADMINISTRATIVE ORDERS. 

MOST RULES OF CONDUCT HAVING THE FORCE OF LAW ARE NOT SELF-EXECUTING
BUT REQUIRE JUDICIAL OR ADMINISTRATIVE ACTION TO IMPOSE THEIR SANCTIONS
WITH RESPECT TO PARTICULAR INDIVIDUALS.  UNLIKE AN ADMINISTRATIVE ORDER
OR A COURT JUDGMENT ADJUDICATING THE RIGHTS OF INDIVIDUALS, WHICH IS
BINDING ONLY ON THE PARTIES TO THE PARTICULAR PROCEEDING, A VALID
EXERCISE OF THE RULE-MAKING POWER IS ADDRESSED TO AND SETS A STANDARD
OF CONDUCT FOR ALL TO WHOM ITS TERMS APPLY.  IT OPERATES AS SUCH IN
ADVANCE OF THE IMPOSITION OF SANCTIONS UPON ANY PARTICULAR INDIVIDUAL. 
IT IS COMMON EXPERIENCE THAT MEN CONFORM THEIR CONDUCT TO REGULATIONS
BY GOVERNMENTAL AUTHORITY SO AS TO AVOID THE UNPLEASANT LEGAL
CONSEQUENCES WHICH FAILURE TO CONFORM ENTAILS.  AND IN THIS CASE IT IS
ALLEGED WITHOUT CONTRADICTION THAT NUMEROUS AFFILIATED STATIONS HAVE
CONFORMED TO THE REGULATIONS TO AVOID LOSS OF THEIR LICENSES WITH
CONSEQUENT INJURY TO APPELLANT. 

SUCH REGULATIONS HAVE THE FORCE OF LAW BEFORE THEIR SANCTIONS ARE
INVOKED AS WELL AS AFTER.  WHEN, AS HERE, THEY ARE PROMULGATED BY ORDER
OF THE COMMISSION AND THE EXPECTED CONFORMITY TO THEM CAUSES INJURY
COGNIZABLE BY A COURT OF EQUITY, THEY ARE APPROPRIATELY THE SUBJECT OF
ATTACK UNDER THE PROVISIONS OF SEC. 402(A) AND THE URGENT DEFICIENCIES
ACT.  A.T. & T. CO. V. UNITED STATES, SUPRA; ROCHESTER TELEPHONE CORP.
V. UNITED STATES, 307 U.S. 125; INTERSTATE COMMERCE COMM'N V. GOODRICH
TRANSIT CO., 224 U.S. 194; KANSAS CITY SO. RY. CO. V. UNITED STATES,
231 U.S. 423; ASSIGNED CAR CASES, SUPRA; CHICAGO, R.I. & P. RY. CO. V.
UNITED STATES, 284 U.S. 80; UNITED STATES V. B. & O.R. CO., SUPRA. 

IT IS NO ANSWER TO SAY THAT THE REGULATIONS ARE ADDRESSED ONLY TO THE
COMMISSION AND MERELY PROHIBIT IT FROM GRANTING - AND AUTHORIZE IT TO
CANCEL - LICENSES IN THE CASE OF ALL STATIONS ENTERING INTO SUCH
CONTRACTS, AND THAT ACCORDINGLY ALL STATIONS ARE LEFT FREE TO ENTER
INTO CONTRACTS OR NOT, AS THEY CHOOSE.  THEY ARE FREE ONLY IN THE SENSE
THAT ALL THOSE WHO DO NOT CHOOSE TO CONFORM TO REGULATIONS WHICH MAY BE
DETERMINED TO BE LAWFUL ARE FREE BY THEIR CHOICE TO ACCEPT THE LEGAL
CONSEQUENCES OF THEIR ACTS.  FAILURE TO COMPLY WITH THE REGULATIONS
ENTAILS SUCH CONSEQUENCES TO THE STATION OWNER AND TO APPELLANT.  THESE
ARE THE LOSS OF THE AFFILIATED STATIONS' LICENSES IF THEY ADHERE TO
THEIR CONTRACTS, AND DISRUPTION OF APPELLANT'S NETWORK THROUGH THE
DECLARED UNLAWFULNESS OF THE CONTRACTS, IF THE REGULATIONS ARE VALID. 

THE PURPOSES SOUGHT TO BE ACCOMPLISHED BY SEC. 402(A) AND THE URGENT
DEFICIENCIES ACT WOULD BE DEFEATED IF A SUITOR WERE UNABLE TO RESORT TO
THEM TO AVOID REASONABLY ANTICIPATED IRREPARABLE INJURY RESULTING FROM
SUCH LEGAL CONSEQUENCES OF THE COMMISSION'S ORDER, MERELY BECAUSE THE
COMMISSION AS YET HAS NEITHER REFUSED TO RENEW A LICENSE, AS THE
REGULATIONS REQUIRE, NOR CANCELLED A LICENSE, AS THE REGULATIONS
PERMIT.  SUCH AN ARGUMENT ADDRESSED TO THE FORM RATHER THAN THE
SUBSTANCE OF THE ORDER WAS REJECTED IN POWELL V. UNITED STATES, SUPRA
(300 U.S. 276); CF. A.F. OF L. V. LABOR BOARD, SUPRA, 308 U.S. 408. 
THE POWELL CASE LIKEWISE REPUDIATES THE SUGGESTION THAT, MERELY BECAUSE
THE ORDER IS NOT IN TERMS ADDRESSED TO THOSE WHOSE RIGHTS ARE AFFECTED,
THEY CANNOT SEEK ITS REVIEW.  SEE ALSO WESTERN PACIFIC R. CO. V.
SOUTHERN PACIFIC CO., 284 U.S. 47; CLAIBORNE-ANNAPOLIS FERRY CO. V.
UNITED STATES, 285 U.S. 382. 

THE ORDER HERE IS NOT ONE, AS THE GOVERNMENT ARGUES AND AS THE COURT
BELOW SEEMED TO THINK, WHERE THE COMPLAINANT'S RIGHTS ARE AFFECTED ONLY
ON THE CONTINGENCY OF FUTURE ADMINISTRATIVE ACTION, AS IN UNITED STATES
V. LOS ANGELES & S.L.R. CO., 273 U.S. 299; CF. ROCHESTER TELEPHONE
CORP. V. UNITED STATES, SUPRA, 307 U.S. 130.  AS THE COURT DECLARED IN
THE LOS ANGELES CASE, 309, 310, REVIEWABLE ORDERS ARE "AN EXERCISE
EITHER OF THE QUASI-JUDICIAL FUNCTION OF DETERMINING CONTROVERSIES OR
OF THE DELEGATED LEGISLATIVE FUNCTION OF RATE MAKING AND RULE MAKING." 
AND THE COURT POINTED OUT THAT THE "SO-CALLED ORDER" IN THAT CASE DID
NOT "DETERMINE ANY RIGHT OR OBLIGATION" OR CHANGE THE PLAINTIFF'S
"EXISTING OR FUTURE STATUS OR CONDITION," AND THAT IT WAS "MERELY THE
FORMAL RECORD OF CONCLUSIONS REACHED AFTER A STUDY OF DATA COLLECTED IN
THE COURSE OF EXTENSIVE RESEARCH CONDUCTED BY THE COMMISSION" AND "IS
THE EXERCISE SOLELY OF THE FUNCTION OF INVESTIGATION." 

HERE THE COMMISSION EXERCISED ITS RULE-MAKING POWER BY ADOPTING
REGULATIONS WHOSE OPERATION IS NOT MADE SUBJECT TO FUTURE
ADMINISTRATIVE DETERMINATIONS, SAVE ONLY AS THE COMMISSION MAY BE
CALLED ON TO DECIDE IN ANY GIVEN CASE WHETHER A STATION'S CONTRACT WITH
A NETWORK IS WITHIN THE REGULATIONS.  THE REGULATIONS' APPLICABILITY TO
ALL WHO ARE WITHIN THEIR TERMS DOES NOT DEPEND UPON FUTURE
ADMINISTRATIVE ACTION.  INSTEAD, THEY OPERATE TO CONTROL SUCH ACTION
AND TO DETERMINE IN ADVANCE THE RIGHTS OF OTHERS AFFECTED BY IT.  THE
COMMISSION GAVE ITS OWN RECOGNITION THAT SUCH IS THEIR OPERATION BY ITS
SUCCESSIVE POSTPONEMENTS OF THE EFFECTIVE DATE OF THE ORDER FOR A
PERIOD NOW EXPIRED, AND BY ITS SUSPENSION OF REGULATIONS 3.106 AND
3.107, IN ORDER TO ENABLE THE NETWORKS TO DISPOSE OF THEIR PROPERTIES. 

OF COURSE, THE COMMISSION WAS AT LIBERTY TO FOLLOW A WHOLLY DIFFERENT
PROCEDURE.  INSTEAD OF PROCLAIMING GENERAL REGULATIONS APPLICABLE TO
ALL LICENSES, IN ADVANCE OF ANY SPECIFIC CONTEST OVER A LICENSE, IT
MIGHT HAVE AWAITED SUCH A CONTEST TO DECLARE THAT THE POLICY WHICH
THESE REGULATIONS EMBODY REPRESENTS ITS CONCEPT OF THE PUBLIC
INTEREST.  AS A MATTER OF SOUND ADMINISTRATIVE PRACTICE, BOTH THE RULE
MAKING PROCEEDING AND THE SPECIFIC LICENSE PROCEEDING UNDOUBTEDLY HAVE
MUCH TO COMMEND THEM.  BUT THEY ARE BY NO MEANS THE SAME, NOR DO THEY
NECESSARILY GIVE RISE TO THE SAME KIND OF JUDICIAL REVIEW.  HAVING
ADOPTED THIS ORDER UNDER ITS RULE-MAKING POWER, THE COMMISSION CANNOT
INSIST THAT THE APPELLANT BE RELEGATED TO THAT JUDICIAL REVIEW WHICH
WOULD BE EXCLUSIVE IF THE RULE-MAKING POWER HAD NEVER BEEN EXERCISED
AND CONSEQUENTLY HAD NEVER SUBJECTED APPELLANT TO THE THREATENED
IRREPARABLE INJURY. 

THE COURT BELOW ASSUMED THAT IF APPELLANT HAD ANY EQUITABLE CAUSE OF
ACTION, IT MUST BE PROSECUTED IN AN ORDINARY SUIT AND NOT UNDER THE
PROVISIONS OF THE URGENT DEFICIENCIES ACT.  BUT WE THINK THIS MISTAKES
BOTH THE NATURE OF THE REGULATIONS AND THE PURPOSE OF SUITS UNDER THAT
ACT, AS INCORPORATED IN SEC. 402(A).  SUCH A CAUSE OF ACTION OBVIOUSLY
CAN ARISE ONLY BECAUSE OF THE OPERATION OF THE REGULATIONS.  THE
REGULATIONS ARE THE EFFECTIVE IMPLEMENT BY WHICH THE INJURY COMPLAINED
OF IS WROUGHT, AND HENCE MUST BE THE OBJECT OF THE ATTACK.  IT IS
BECAUSE THEY ARE AN EXERCISE OF THE RULE-MAKING POWER, AND BECAUSE THEY
PRESENTLY DETERMINE RIGHTS ON THE BASIS OF WHICH THE COMMISSION IS
REQUIRED TO WITHHOLD LICENSES AND AUTHORIZED TO CANCEL THEM, THAT THERE
IS AN ORDER WITHIN THE MEANING OF SEC. 402(A) AND THE URGENT
DEFICIENCIES ACT. 

THE COMMISSION ARGUES THAT, SINCE ITS REPORT CHARACTERIZED THE
REGULATIONS AS ANNOUNCEMENTS OF POLICY, THE ORDER PROMULGATING THEM IS
NO MORE SUBJECT TO REVIEW THAN A PRESS RELEASE SIMILARLY ANNOUNCING ITS
POLICY.  UNDOUBTEDLY, REGULATIONS ADOPTED IN THE EXERCISE OF THE
ADMINISTRATIVE RULE-MAKING POWER, LIKE LAWS ENACTED BY LEGISLATURES,
EMBODY ANNOUNCEMENTS OF POLICY.  BUT THEY MAY BE SOMETHING MORE.  WHEN,
AS HERE, THE REGULATIONS ARE AVOWEDLY ADOPTED IN THE EXERCISE OF THAT
POWER, COUCHED IN TERMS OF COMMAND AND ACCOMPANIED BY AN ANNOUNCEMENT
OF THE COMMISSION THAT THE POLICY IS ONE "WHICH WE WILL FOLLOW IN
EXERCISING OUR LICENSING POWER," THEY MUST BE TAKEN BY THOSE ENTITLED
TO RELY UPON THEM AS WHAT THEY PURPORT TO BE - AN EXERCISE OF THE
DELEGATED LEGISLATIVE POWER - WHICH, UNTIL AMENDED, ARE CONTROLLING
ALIKE UPON THE COMMISSION AND ALL OTHERS WHOSE RIGHTS MAY BE AFFECTED
BY THE COMMISSION'S EXECUTION OF THEM.  THE COMMISSION'S CONTENTION
THAT THE REGULATIONS ARE NO MORE REVIEWABLE THAN A PRESS RELEASE IS
HARDLY RECONCILABLE WITH ITS OWN RECOGNITION THAT THE REGULATIONS
AFFORD LEGAL BASIS FOR CANCELLATION OF THE LICENSE OF A STATION IF IT
RENEWS ITS CONTRACT WITH APPELLANT. 

APPELLANT'S STANDING TO MAINTAIN THE PRESENT SUIT IN EQUITY IS
UNAFFECTED BY THE FACT THAT THE REGULATIONS ARE NOT DIRECTED TO
APPELLANT AND DO NOT IN TERMS COMPEL ACTION BY IT OR IMPOSE PENALTIES
UPON IT BECAUSE OF ITS ACTION OR FAILURE TO ACT.  IT IS ENOUGH THAT, BY
SETTING THE CONTROLLING STANDARDS FOR THE COMMISSION'S ACTION, THE
REGULATIONS PURPORT TO OPERATE TO ALTER AND AFFECT ADVERSELY
APPELLANT'S CONTRACTUAL RIGHTS AND BUSINESS RELATIONS WITH STATION
OWNERS WHOSE APPLICATIONS FOR LICENSES THE REGULATIONS WILL CAUSE TO BE
REJECTED AND WHOSE LICENSES THE REGULATIONS MAY CAUSE TO BE REVOKED. 
CHICAGO JUNCTION CASE, 264 U.S. 258, 266-68; WESTERN PACIFIC R. CO. V.
SOUTHERN PACIFIC CO., SUPRA; CLAIBORNE-ANNAPOLIS FERRY CO. V. UNITED
STATES, SUPRA; COMPARE, IN THE CASE OF AN ATTACK UPON THE VALIDITY OF A
STATUTE, TRUAX V. RAICH, 239 U.S. 33, 38-39; PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510. 

WHAT WE HAVE SAID OF THE ALLEGATIONS OF THE COMPLAINT, AND OF THE
EFFECT OF THE COMMISSION'S ORDER IF THOSE ALLEGATIONS ARE SUSTAINED
UPON THE TRIAL, IS ENOUGH TO ESTABLISH THE THREAT OF IRREPARABLE INJURY
TO APPELLANT'S BUSINESS AND TO SHOW ALSO THAT THE INJURY CAN NOT BE
AVOIDED, AS THE COMMISSION SUGGESTS, BY APPELLANT'S INTERVENTION IN
PROCEEDINGS UPON APPLICATIONS FOR RENEWAL OF LICENSES BY ITS AFFILIATES
OR IN PROCEEDINGS TO CANCEL THEIR LICENSES, IF AND WHEN SUCH
PROCEEDINGS ARE INSTITUTED.  APPELLANT HAS SUFFICIENTLY ALLEGED THAT
THE AFFILIATES ARE CANCELLING OR THREATENING TO CANCEL THEIR CONTRACTS
IN ORDER TO CONFORM TO THE REGULATIONS.  IT IS TO AVOID THE IRREPARABLE
INJURY WHICH WOULD RESULT FROM SUCH WHOLESALE CANCELLATIONS OF ITS
CONTRACTS, INDUCED BY THE FORCE OF THE REGULATIONS, THAT APPELLANT
MAKES ITS ATTACK ON THEM NOW RATHER THAN IN LATER PROCEEDINGS ON THE
INDIVIDUAL APPLICATIONS FOR LICENSES IN THOSE CASES, IF ANY, IN WHICH
THE STATIONS ARE WILLING TO SEEK LICENSES WITHOUT COMPLYING WITH THE
PREREQUISITES LAID DOWN BY THE REGULATIONS. 

THE ISSUES IN SUCH A PROCEEDING ARE NOT NECESSARILY THE SAME AS THE
ISSUES HERE.  INTERVENTION IN IT WOULD AFFORD APPELLANT NO ASSURANCE
EITHER OF AN ADJUDICATION OF APPELLANT'S CONTENTIONS OR THAT THE ACTION
OF OTHER STATIONS WOULD BE GOVERNED BY IT.  MOREOVER, IF THE
COMMISSION'S ORDER IS, AS WE HOLD, A REVIEWABLE ORDER, APPELLANT IS
FREE TO SEEK REVIEW UNDER SEC. 402(A).  IT IS NOT THEREBY, AS THE COURT
BELOW SEEMED TO THINK, IMPROPERLY SUBSTITUTING A DIFFERENT PROCEDURE
AND COURT FOR THAT WHICH CONGRESS HAS PRESCRIBED FOR THE TRIAL OF LIKE
ISSUES SO FAR AS THEY MAY BE RAISED ON REVIEW OF AN ORDER DENYING A
LICENSE.  SUCH ISSUES MAY LIKEWISE BE INVOLVED IN A PROCEEDING, UPON
THE COMMISSION'S OWN MOTION, FOR MODIFICATION OR CANCELLATION OF A
LICENSE, WHICH CONCEDEDLY IS REVIEWABLE UNDER SEC. 402(A).  SEE SCRIPPS
HOWARD RADIO V. FEDERAL COMMUNICATIONS COMM'N, ANTE, P. 4.  BUT REVIEW
OF THE ORDER BY A LICENSEE IN SUCH A PROCEEDING AFFORDS NO ADEQUATE
REMEDY.  IF EVER INSTITUTED, WHICH IS UNCERTAIN, IT WOULD COME TOO LATE
TO SAVE APPELLANT FROM THE INJURY WROUGHT BY THE OUTLAWRY OF ITS
CONTRACTS. 

NOR DOES THE COMMISSION'S MINUTE, FILED AFTER THE PRESENT SUIT WAS
BROUGHT, AFFORD AN ADEQUATE BASIS FOR REQUIRING APPELLANT TO SEEK
RELIEF BY INTERVENTION IN A PROCEEDING ON APPLICATION FOR A LICENSE
REVIEWABLE UNDER SEC. 402(B).  IN THAT EVENT THE MINUTE WOULD NOT
OPERATE TO BROADEN THE ISSUES INVOLVED IN THE RENEWAL APPLICATION.  NOR
WOULD IT AFFORD A BASIS FOR RESTRAINING ENFORCEMENT OF THE REGULATIONS
AS TO OTHER AFFILIATED STATIONS, PENDING ADJUDICATION OF THE VALIDITY
OF THE REGULATIONS.  WITHOUT FULL EXPLORATION OF THE SUBJECT, SUCH AS
CAN BE HAD ONLY AT THE TRIAL, WE CANNOT SAY THAT THE MINUTE WILL AFFORD
A SUFFICIENT INDUCEMENT TO PERSUADE THE AFFILIATED STATIONS TO CEASE
CANCELLATIONS AND ASSUME THE INITIATIVE IN LITIGATING THE VALIDITY OF
THE REGULATIONS AND OF THE CONTRACTS WHICH THEY UNDERTAKE TO CONDEMN. 
THE AFFIDAVIT FILED IN THE COURT BELOW ON THE APPLICATION FOR A STAY IS
TO THE CONTRARY.  AND IN ANY CASE, WE ARE OF THE OPINION THAT THERE ARE
NO EQUITABLE PRINCIPLES BY WHICH THE RIGHT OF APPELLANT, UPON THE
SHOWING MADE BY ITS COMPLAINT AND AFFIDAVIT, TO TEST THE ORDER UNDER
SEC. 402(A) CAN JUSTLY BE SUSPENDED TO AWAIT ACTION WHICH THE STATION
OWNERS MAY OR MAY NOT TAKE IN ASSUMING THE BURDEN OF CHALLENGING THE
REGULATIONS. 

WE NEED NOT STOP TO DISCUSS HERE THE GREAT VARIETY OF ADMINISTRATIVE
RULINGS WHICH, UNLIKE THIS ONE, ARE NOT REVIEWABLE - EITHER BECAUSE
THEY DO NOT ADJUDICATE RIGHTS OR DECLARE THEM LEGISLATIVELY, OR BECAUSE
THERE ARE ADEQUATE ADMINISTRATIVE REMEDIES WHICH MUST BE PURSUED BEFORE
RESORTING TO JUDICIAL REMEDIES, OR BECAUSE THERE IS NO OCCASION TO
RESORT TO EQUITABLE REMEDIES.  BUT WE SHOULD NOT FOR THAT REASON FAIL
TO DISCRIMINATE BETWEEN THEM AND THIS CASE IN WHICH, BECAUSE OF ITS
PECULIAR CIRCUMSTANCES, ALL THE ELEMENTS PREREQUISITE TO JUDICIAL
REVIEW ARE PRESENT.  THE ULTIMATE TEST OF REVIEWABILITY IS NOT TO BE
FOUND IN AN OVERREFINED TECHNIQUE, BUT IN THE NEED OF THE REVIEW TO
PROTECT FROM THE IRREPARABLE INJURY THREATENED IN THE EXCEPTIONAL CASE
BY ADMINISTRATIVE RULINGS WHICH ATTACH LEGAL CONSEQUENCES TO ACTION
TAKEN IN ADVANCE OF OTHER HEARINGS AND ADJUDICATIONS THAT MAY FOLLOW,
THE RESULTS OF WHICH THE REGULATIONS PURPORT TO CONTROL. 

WE CONCLUDE THAT THE COMMISSION'S PROMULGATION OF THE REGULATIONS IS
AN ORDER REVIEWABLE UNDER SEC. 402(A) OF THE ACT, AND THAT THE BILL OF
COMPLAINT STATES A CAUSE OF ACTION IN EQUITY.  THE STAY NOW IN EFFECT
WILL BE CONTINUED, ON TERMS TO BE SETTLED BY THE COURT BELOW. 
REVERSED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

ORDERS AND REGULATIONS OF THE FEDERAL COMMUNICATIONS COMMISSION,
CONSIDERED IN THE FOREGOING OPINION OF THE COURT:

           ORDER OF MAY 2, 1941, AS AMENDED OCTOBER 11, 1941 

NOW, THEREFORE, IT IS HEREBY ORDERED, THAT THE FOLLOWING REGULATIONS
BE AND THEY ARE HEREBY ADOPTED: 

SEC. 3.101.  EXCLUSIVE AFFILIATION OF STATION.  - NO LICENSE SHALL BE
GRANTED TO A STANDARD BROADCAST STATION HAVING ANY CONTRACT,
ARRANGEMENT, OR UNDERSTANDING, EXPRESS OR IMPLIED, WITH A NETWORK
ORGANIZATION UNDER WHICH THE STATION IS PREVENTED OR HINDERED FROM, OR
PENALIZED FOR, BROADCASTING THE PROGRAMS OF ANY OTHER NETWORK
ORGANIZATION. 

SEC. 3.102.  TERRITORIAL EXCLUSIVITY.  - NO LICENSE SHALL BE GRANTED
TO A STANDARD BROADCAST STATION HAVING ANY CONTRACT, ARRANGEMENT, OR
UNDERSTANDING, EXPRESS OR IMPLIED, WITH A NETWORK ORGANIZATION WHICH
PREVENTS OR HINDERS ANOTHER STATION SERVING SUBSTANTIALLY THE SAME AREA
FROM BROADCASTING THE NETWORK'S PROGRAMS NOT TAKEN BY THE FORMER
STATION, OR WHICH PREVENTS OR HINDERS ANOTHER STATION SERVING A
SUBSTANTIALLY DIFFERENT AREA FROM BROADCASTING ANY PROGRAM OF THE
NETWORK ORGANIZATION.  THIS REGULATION SHALL NOT BE CONSTRUED TO
PROHIBIT ANY CONTRACT, ARRANGEMENT, OR UNDERSTANDING BETWEEN A STATION
AND A NETWORK ORGANIZATION PURSUANT TO WHICH THE STATION IS GRANTED THE
FIRST CALL IN ITS PRIMARY SERVICE AREA UPON THE PROGRAMS OF THE NETWORK
ORGANIZATION. 

SEC. 3.103.  TERM OF AFFILIATION.  - NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION HAVING ANY CONTRACT, ARRANGEMENT, OR
UNDERSTANDING, EXPRESSED OR IMPLIED, WITH A NETWORK ORGANIZATION WHICH
PROVIDES, BY ORIGINAL TERM, PROVISIONS FOR RENEWAL, OR OTHERWISE FOR
THE AFFILIATION OF THE STATION WITH THE NETWORK ORGANIZATION FOR A
PERIOD LONGER THAN TWO YEARS: PROVIDED, THAT A CONTRACT, ARRANGEMENT,
OR UNDERSTANDING FOR A PERIOD UP TO TWO YEARS, MAY BE ENTERED INTO
WITHIN 120 DAYS PRIOR TO THE COMMENCEMENT OF SUCH PERIOD. 

SEC. 3.104.  OPTION TIME.  - NO LICENSE SHALL BE GRANTED TO A
STANDARD BROADCAST STATION WHICH OPTIONS FOR NETWORK PROGRAMS ANY TIME
SUBJECT TO CALL ON LESS THAN 56 DAYS' NOTICE, OR MORE TIME THAN A TOTAL
OF THREE HOURS WITHIN EACH OF FOUR SEGMENTS OF THE BROADCAST DAY, AS
HEREIN DESCRIBED.  THE BROADCAST DAY IS DIVIDED INTO 4 SEGMENTS, AS
FOLLOWS:  8:00 A.M. TO 1.00 P.M.; 1:00 P.M. TO 6:00 P.M.; 6:00 P.M. TO
11:00 P.M.; 11:00 P.M. TO 8:00 A.M.  SUCH OPTIONS MAY NOT BE EXCLUSIVE
AS AGAINST OTHER NETWORK ORGANIZATIONS AND MAY NOT PREVENT OR HINDER
THE STATION FROM OPTIONING OR SELLING ANY OR ALL OF THE TIME COVERED BY
THE OPTION, OR OTHER TIME, TO OTHER NETWORK ORGANIZATIONS. 

SEC. 3.105.  RIGHT TO REJECT PROGRAMS.  - NO LICENSE SHALL BE GRANTED
TO A STANDARD BROADCAST STATION HAVING ANY CONTRACT, ARRANGEMENT, OR
UNDERSTANDING, EXPRESS OR IMPLIED, WITH A NETWORK ORGANIZATION WHICH
(A), WITH RESPECT TO PROGRAMS OFFERED PURSUANT TO AN AFFILIATION
CONTRACT, PREVENTS OR HINDERS THE STATION FROM REJECTING OR REFUSING
NETWORK PROGRAMS WHICH THE STATION REASONABLY BELIEVES TO BE
UNSATISFACTORY OR UNSUITABLE; OR WHICH (B), WITH RESPECT TO NETWORK
PROGRAMS SO OFFERED OR ALREADY CONTRACTED FOR, PREVENTS THE STATION
FROM REJECTING OR REFUSING ANY PROGRAM WHICH, IN ITS OPINION, IS
CONTRARY TO THE PUBLIC INTEREST, OR FROM SUBSTITUTING A PROGRAM OF
OUTSTANDING LOCAL OR NATIONAL IMPORTANCE. 

SEC. 3.106.  NETWORK OWNERSHIP OF STATIONS.  - NO LICENSE SHALL BE
GRANTED TO A NETWORK ORGANIZATION, OR TO ANY PERSON DIRECTLY OR
INDIRECTLY CONTROLLED BY OR UNDER COMMON CONTROL WITH A NETWORK
ORGANIZATION, FOR MORE THAN ONE STANDARD BROADCAST STATION WHERE ONE OF
THE STATIONS COVERS SUBSTANTIALLY THE SERVICE AREA OF THE OTHER
STATION, OR FOR ANY STANDARD BROADCAST STATION IN ANY LOCALITY WHERE
THE EXISTING STANDARD BROADCAST STATIONS ARE SO FEW OR OF SUCH UNEQUAL
DESIRABILITY (IN TERMS OF COVERAGE, POWER, FREQUENCY, OR OTHER RELATED
MATTERS) THAT COMPETITION WOULD BE SUBSTANTIALLY RESTRAINED BY SUCH
LICENSING. 

SEC. 3.107.  DUAL NETWORK OPERATION.  - NO LICENSE SHALL BE ISSUED TO
A STANDARD BROADCAST STATION AFFILIATED WITH A NETWORK ORGANIZATION
WHICH MAINTAINS MORE THAN ONE NETWORK:  PROVIDED, THAT THIS REGULATION
SHALL NOT BE APPLICABLE IF SUCH NETWORKS ARE NOT OPERATED
SIMULTANEOUSLY, OR IF THERE IS NO SUBSTANTIAL OVERLAP IN THE TERRITORY
SERVED BY THE GROUP OF STATIONS COMPRISING EACH SUCH NETWORK. 

SEC. 3.108.  CONTROL BY NETWORKS OF STATION RATES.  - NO LICENSE
SHALL BE GRANTED TO A STANDARD BROADCAST STATION HAVING ANY CONTRACT,
ARRANGEMENT, OR UNDERSTANDING, EXPRESS OR IMPLIED, WITH A NETWORK
ORGANIZATION UNDER WHICH THE STATION IS PREVENTED OR HINDERED FROM, OR
PENALIZED FOR, FIXING OR ALTERING ITS RATES FOR THE SALE OF BROADCAST
TIME FOR OTHER THAN THE NETWORK'S PROGRAMS. 

(EFFECTIVE DATE.)  THESE REGULATIONS SHALL BECOME EFFECTIVE
IMMEDIATELY:  PROVIDED, THAT, WITH RESPECT TO EXISTING CONTRACTS,
ARRANGEMENTS OR UNDERSTANDINGS, OR NETWORK ORGANIZATION STATION
LICENSES, THE EFFECTIVE DATE SHALL BE DEFERRED UNTIL NOVEMBER 15, 1941:
PROVIDED FURTHER, THAT THE EFFECTIVE DATE OF REGULATION 3.106 WITH
RESPECT TO ANY STATION MAY BE EXTENDED FROM TIME TO TIME IN ORDER TO
PERMIT THE ORDERLY DISPOSITION OF PROPERTIES; AND PROVIDED FURTHER,
THAT THE EFFECTIVE DATE OF REGULATION 3.107 SHALL BE SUSPENDED
INDEFINITELY AND ANY FURTHER ORDER OF THE COMMISSION PLACING SAID
REGULATION 3.107 IN EFFECT SHALL PROVIDE FOR NOT LESS THAN SIX MONTHS'
NOTICE AND FOR FURTHER EXTENSION OF THE EFFECTIVE DATE FROM TIME TO
TIME IN ORDER TO PERMIT THE ORDERLY DISPOSITION OF PROPERTIES. 

THE MINUTE OF OCTOBER 31, 1941 

THE COMMISSION TODAY ADOPTED THE FOLLOWING MINUTE SETTING FORTH THE
PROCEDURE THAT IT WILL FOLLOW IN APPLYING THE POLICIES ANNOUNCED IN THE
CHAIN BROADCASTING REGULATIONS: 

IF A STATION WISHES TO CONTEST THE VALIDITY OF THE CHAIN BROADCASTING
REGULATIONS ADOPTED IN DOCKET NO. 5060, OR THE REASONABLENESS OF THEIR
APPLICATION TO THE PARTICULAR STATION, ITS LICENSE WILL BE SET FOR
HEARING.  IN ORDER TO INSURE THAT THE STATION MAY REMAIN ON THE AIR AND
BE IN NO WAY INJURED BY ANY SUCH COMMISSION PROCEEDING AND APPEAL TO
COURT FROM A DECISION IN SUCH PROCEEDING, THE COMMISSION WILL GRANT
SUCH LICENSEE A TEMPORARY EXTENSION OF ITS LICENSE, WITH RENEWALS FROM
TIME TO TIME UNTIL THERE HAS BEEN A FINAL DETERMINATION OF THE ISSUES
RAISED AT SUCH HEARING.  IN THE EVENT OF SUCH LITIGATION, AND IF THE
VALIDITY OF THE APPLICATION OF THE CHAIN BROADCASTING REGULATIONS TO
SUCH LICENSEE IS SUSTAINED BY THE COURTS, THE COMMISSION WILL
NEVERTHELESS GRANT A REGULAR LICENSE TO THE LICENSEE, OTHERWISE
ENTITLED THERETO, WHO HAS UNSUCCESSFULLY LITIGATED THAT ISSUE, IF THE
LICENSEE THEREUPON CONFORMS TO THE DECISION. 

THE SUPPLEMENTARY DECISION AND ORDER IN DOCKET NO. 5060 INDEFINITELY
SUSPENDED REGULATION 3.107, RELATING TO THE OPERATION OF MORE THAN ONE
NETWORK BY A SINGLE NETWORK ORGANIZATION.  NO SIMILAR SUSPENSION WAS
MADE OF THAT PORTION OF REGULATION 3.106, RELATING TO NETWORK OPERATION
OF MORE THAN ONE STANDARD BROADCAST STATION WITH SUBSTANTIALLY
OVERLAPPING SERVICE AREAS.  THE COMMISSION WILL POSTPONE INDEFINITELY
ANY ACTION TO PREVENT SUCH DUAL STATION OPERATION IF IT IS SHOWN THAT
THE OPERATION OF TWO STATIONS IN ANY CITY IS INDISPENSABLE TO THE
CONTINUED OPERATION OF TWO NETWORKS BY A SINGLE NETWORK ORGANIZATION. 
THE ADOPTION OF THE FOREGOING PROCEDURE IS WITHOUT PREJUDICE TO THE
RIGHTS OF ANY PERSON WHO MAY PETITION THE COMMISSION FOR MODIFICATION
OR STAY OF THE CHAIN BROADCASTING REGULATIONS. 

FN1  THE COMMISSION IN ITS REPORT SAYS, P. 85: 

"WE BELIEVE THAT THE ANNOUNCEMENT OF THE PRINCIPLES WE INTEND TO
APPLY IN EXERCISING OUR LICENSING POWER WILL EXPEDITE BUSINESS AND
FURTHER THE ENDS OF JUSTICE.    "ANNOUNCEMENTS OF POLICY MAY TAKE THE
FORM OF REGULATIONS OR OF GENERAL PUBLIC STATEMENTS.  IN EITHER CASE,
THE APPLICANT'S RIGHT TO A HEARING ON THE QUESTION WHETHER HE DOES IN
FACT PROPOSE TO OPERATE IN THE PUBLIC INTEREST IS FULLY PRESERVED.  THE
REGULATIONS WE ARE ADOPTING ARE NOTHING MORE THAN THE EXPRESSION OF THE
GENERAL POLICY WE WILL FOLLOW IN EXERCISING OUR LICENSING POWER.  THE
FORMULATION OF A REGULATION IN GENERAL TERMS IS AN IMPORTANT AID TO
CONSISTENCY AND PREDICTABILITY AND DOES NOT PREJUDICE ANY RIGHTS OF THE
APPLICANT.  GOOD ADMINISTRATIVE PRACTICE WOULD SEEM TO DEMAND THAT SUCH
A STATEMENT OF POLICY OR RULES AND REGULATIONS BE PROMULGATED WHEREVER
SUFFICIENT INFORMATION IS AVAILABLE UPON WHICH THEY MAY BE BASED." 

FN2  ON OCTOBER 11, 1941, THE COMMISSION AMENDED REGULATION 3.34 TO
MAKE THE NORMAL LICENSE PERIOD TWO YEARS. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

THE CRITERIA GOVERNING JUDICIAL REVIEW OF "ORDERS" UNDER THE URGENT
DEFICIENCIES ACT WERE DEFINED BY A UNANIMOUS COURT IN UNITED STATES V.
LOS ANGELES & S.L.R. CO., 273 U.S. 299, 309-10: "THE SO-CALLED ORDER
HERE COMPLAINED OF IS ONE WHICH DOES NOT COMMAND THE CARRIER TO DO, OR
TO REFRAIN FROM DOING, ANY THING; WHICH DOES NOT GRANT OR WITHHOLD ANY
AUTHORITY, PRIVILEGE OR LICENSE; WHICH DOES NOT EXTEND OR ABRIDGE ANY
POWER OR FACILITY; WHICH DOES NOT SUBJECT THE CARRIER TO ANY LIABILITY,
CIVIL OR CRIMINAL; WHICH DOES NOT CHANGE THE CARRIER'S EXISTING OR
FUTURE STATUS OR CONDITION; WHICH DOES NOT DETERMINE ANY RIGHT OR
OBLIGATION."  IF "BROADCASTING COMPANY" WERE SUBSTITUTED FOR "CARRIER,"
THIS ANALYSIS OF THE LEGAL CONSEQUENCES OF THE ACTION OF THE INTERSTATE
COMMERCE COMMISSION IN THE LOS ANGELES CASE WOULD FIT PERFECTLY THE
LEGAL CONSEQUENCES OF THE ACTION OF THE FEDERAL COMMUNICATIONS
COMMISSION IN MAKING PUBLIC THE CHALLENGED REGULATIONS. 

THE FACT THAT AN ACTION OF AN ADMINISTRATIVE AGENCY OCCASIONS EVEN
IRREPARABLE LOSS DOES NOT IN ITSELF AFFORD SUFFICIENT GROUNDS FOR
JUDICIAL REVIEW.  EVEN IF THE COMMISSION COMMITTED A WRONG, THE
QUESTION OF JUDICIAL REVIEWABILITY STILL REMAINS THAT PUT IN THE LOS
ANGELES CASE, 273 U.S. AT 313, TO WIT, IS IT "A WRONG FOR WHICH
CONGRESS PROVIDES A REMEDY UNDER THE URGENT DEFICIENCIES ACT" OF
OCTOBER 22, 1913, 38 STAT. 208, 219, AS INCORPORATED IN SEC. 402(A) OF
THE COMMUNICATIONS ACT OF 1934? 

FOR CONGRESS HAS NOT AUTHORIZED RESORT TO THE FEDERAL COURTS MERELY
BECAUSE SOMEONE FEELS AGGRIEVED, HOWEVER DEEPLY, BY AN ACTION OF THE
FEDERAL COMMUNICATIONS COMMISSION.  A DISTRICT COURT OF THE UNITED
STATES CAN TAKE A CASE ONLY WHEN CONGRESS HAS AUTHORIZED THAT TYPE OF
CASE TO BE TAKEN.  CONGRESS DID NOT LEAVE OPPORTUNITY FOR REVIEWING
DAMAGING ACTION BY THE FEDERAL COMMUNICATIONS COMMISSION TO THE GENERAL
EQUITY POWERS OF THE DISTRICT COURTS.  IT CIRCUMSCRIBED THE POWER OF
THE COURTS IN RELATION TO THE COMMISSION IN THE MOST DETAILED WAY.  ITS
INCORPORATION BY REFERENCE, IN THE COMMUNICATIONS ACT OF 1934, OF THE
SCOPE OF REVIEW ALLOWED IN REVIEWING AN "ORDER" OF THE INTERSTATE
COMMERCE COMMISSION GAVE ALL THE PRECISE, DEFINITE, AND TECHNICAL
BOUNDARIES WHICH THE CONCEPT OF A REVIEWABLE "ORDER" HAD ACQUIRED
THROUGH THE DECISIONS OF THIS COURT PRIOR TO THE ENACTMENT OF THE
COMMUNICATIONS ACT.  THE PRECISE REQUIREMENTS OF AN "ORDER" OF THE
COMMISSION FOR PURPOSES OF JUDICIAL REVIEW ARE THEREFORE AS INFLEXIBLE
AS THOUGH THEY WERE WRITTEN INTO THE ACT ITSELF. 

OUR PROBLEM, THEN, IS THIS:  DOES THE ISSUANCE OF THE CHAIN
BROADCASTING REGULATIONS CONSTITUTE AN "ORDER" REVIEWABLE IN A
PROCEEDING BROUGHT UNDER SEC. 402(A) OF THE COMMUNICATIONS ACT, IN THE
LIGHT OF THE SETTLED RULES FOR DETERMINING WHAT SUCH AN "ORDER" IS WHEN
A DETERMINATION OF THE INTERSTATE COMMERCE COMMISSION IS MADE THE BASIS
OF JUDICIAL REVIEW.  IT IS THEREFORE NECESSARY TO PUT OUT OF MIND WHAT
THIS CASE IS NOT.  IT IS NOT THE INVOCATION OF EQUITY JURISDICTION IN
ORDER TO AVOID THREATENED IRREPARABLE HARM RESULTING FROM THE CRIMINAL
ENFORCEMENT OF AN UNCONSTITUTIONAL STATUTE, AS IN PIERCE V. SOCIETY OF
SISTERS, 268 U.S. 510.  NOR DO WE HAVE HERE A RESORT TO EQUITY BECAUSE
IT IS ESSENTIAL FOR THE PROTECTION OF ASSERTED RIGHTS THAT CRIMINAL
PROSECUTIONS UNAUTHORIZED BY LAW BE RESTRAINED, AS IN SHIELDS V. UTAH
IDAHO R. CO., 305 U.S. 177, 183. 

IN PROMULGATING THESE REGULATIONS THE COMMUNICATIONS COMMISSION
MERELY ANNOUNCED ITS CONCEPTION OF ONE ASPECT OF THE PUBLIC INTEREST,
NAMELY, THE RELATIONSHIP OF CERTAIN PROVISIONS IN NETWORK-AFFILIATION
CONTRACTS TO THE OBLIGATION OF A STATION LICENSEE TO RENDER THE MOST
EFFECTIVE SERVICE TO THE LISTENING PUBLIC.  THE REGULATIONS THEMSELVES
DETERMINE NO RIGHTS.  THEY ALTER THE STATUS OF NEITHER THE NETWORKS NOR
LICENSEES.  AS SUCH THEY REQUIRE NOBODY - NEITHER THE NETWORKS, THE
LICENSEES, NOR THE COMMISSION - TO DO ANYTHING.  THEY ARE MERELY AN
ANNOUNCEMENT TO THE PUBLIC OF WHAT THE COMMISSION INTENDS TO DO IN
PASSING UPON FUTURE APPLICATIONS FOR STATION LICENSES.  NO ACTION OF
THE STATIONS OR THE NETWORKS CAN VIOLATE THE REGULATIONS, FOR THERE IS
NOTHING THE REGULATIONS REQUIRE THEM TO DO OR REFRAIN FROM DOING. 

ANNOUNCEMENTS OF GENERAL POLICIES INTENDED TO BE FOLLOWED BY
ADMINISTRATIVE AGENCIES CUSTOMARILY TAKE ANY ONE OF VARIOUS FORMS. 
SOMETIMES THEY ARE NOTED IN THE AGENCY'S ANNUAL REPORT TO CONGRESS,
SOMETIMES IN A PUBLIC ANNOUNCEMENT OR PRESS RELEASE, AND SOMETIMES, AS
WAS THE CASE HERE, THEY ARE PUBLISHED AS "RULES" OR "REGULATIONS."  SEE
FINAL REPORT OF THE ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE
PROCEDURE (1941), PP. 26-27.  BUT WHATEVER FORM SUCH ANNOUNCEMENTS MAY
TAKE, THEIR NATURE AND EFFECT IS THE SAME.  THE REASON WHY THE
COMMISSION FORMULATED ITS CHAIN BROADCASTING POLICY IN THE FORM OF A
"REGULATION" IS GIVEN IN ITS REPORT:  "WE BELIEVE THAT THE ANNOUNCEMENT
OF THE PRINCIPLES WE INTEND TO APPLY IN EXERCISING OUR LICENSING POWER
WILL EXPEDITE BUSINESS AND FURTHER THE ENDS OF JUSTICE.  ...  GOOD
ADMINISTRATIVE PRACTICE WOULD SEEM TO DEMAND THAT SUCH A STATEMENT OF
POLICY OR RULES AND REGULATIONS BE PROMULGATED WHEREVER SUFFICIENT
INFORMATION IS AVAILABLE UPON WHICH THEY MAY BE BASED."  REPORT ON
CHAIN BROADCASTING, FEDERAL COMMUNICATIONS COMMISSION, ORDER NO. 37,
DOCKET NO. 5060, P. 85. 

WITH RESPECT TO ITS JURISDICTION OVER MATTERS RELATING TO RADIO
BROADCASTING, THE COMMUNICATIONS COMMISSION IS ESSENTIALLY A LICENSING
AGENCY.  ITS REGULATORY POWER OVER THE INDUSTRY IS DERIVED, FOR THE
MOST PART, FROM ITS AUTHORITY TO GRANT AND WITHHOLD STATION LICENSES. 
UNDER SEC. 309 OF THE COMMUNICATIONS ACT OF 1934 THE COMMISSION IS
REQUIRED TO EXAMINE EACH APPLICATION FOR A STATION LICENSE AND TO
DETERMINE IN EACH CASE WHETHER A GRANT WOULD SERVE PUBLIC INTEREST,
CONVENIENCE, OR NECESSITY.  AS WAS NOTED IN FEDERAL COMMUNICATIONS
COMMISSION V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 138, THE ACT
"EXPRESSES A DESIRE ON THE PART OF CONGRESS TO MAINTAIN, THROUGH
APPROPRIATE ADMINISTRATIVE CONTROL, A GRIP ON THE DYNAMIC ASPECTS OF
RADIO TRANSMISSION."  TO THAT END, CONGRESS ESTABLISHED AN
ADMINISTRATIVE PROCEDURE UNDER WHICH THE COMMISSION MUST MAKE A
SPECIFIC DETERMINATION IN EACH CASE WHETHER THE PUBLIC INTEREST WOULD
BE SERVED BY GRANTING THE PARTICULAR APPLICATION BEFORE IT.  NO
ANNOUNCEMENT OF GENERAL LICENSING POLICY CAN RELIEVE THE COMMISSION OF
ITS STATUTORY OBLIGATION TO EXAMINE EACH APPLICATION FOR A LICENSE AND
DETERMINE WHETHER A GRANT OR DENIAL IS REQUIRED BY THE PUBLIC
INTEREST. 

THE COMMISSION RECOGNIZED THIS FACT IN ISSUING THESE REGULATIONS.  IT
EXPLICITLY STATED THAT A DETERMINATION OF THE REQUIREMENTS OF THE
PUBLIC INTEREST WILL, IN SPITE OF THE REGULATIONS, STILL HAVE TO BE
MADE IN PASSING UPON PARTICULAR APPLICATIONS:  "ANNOUNCEMENTS OF POLICY
MAY TAKE THE FORM OF REGULATIONS OR OF GENERAL PUBLIC STATEMENTS.  IN
EITHER CASE, THE APPLICANT'S RIGHT TO A HEARING ON THE QUESTION WHETHER
HE DOES IN FACT PROPOSE TO OPERATE IN THE PUBLIC INTEREST IS FULLY
PRESERVED.  THE REGULATIONS WE ARE ADOPTING ARE NOTHING MORE THAN THE
EXPRESSION OF THE GENERAL POLICY WE WILL FOLLOW IN EXERCISING OUR
LICENSING POWER.  THE FORMULATION OF A REGULATION IN GENERAL TERMS IS
AN IMPORTANT AID TO CONSISTENCY AND PREDICTABILITY AND DOES NOT
PREJUDICE ANY RIGHTS OF THE APPLICANT."  REPORT ON CHAIN BROADCASTING,
SUPRA, P. 85. 

SUBSEQUENT TO THE PROMULGATION OF THE REGULATIONS, THE COMMISSION
FOUND THAT SUBSTANTIAL MODIFICATIONS WERE NECESSARY.  IN ITS
SUPPLEMENTAL REPORT ON THESE AMENDMENTS, THE COMMISSION GAVE FURTHER
EVIDENCE OF THE FLEXIBLE NATURE OF THE REGULATIONS:  "THE COMMISSION
STANDS READY AT ALL TIMES TO AMEND AND MODIFY ITS REGULATIONS UPON THE
PETITION OF ANY NETWORK, NATIONAL OR REGIONAL, OR ANY STATION OR GROUP
OF STATIONS IF IT CAN BE SHOWN THAT THOSE REGULATIONS PREVENT
PROFITABLE NETWORK OPERATIONS, OR UNDULY DISTURB ANY ASPECT OF
BROADCASTING, OR THAT BECAUSE OF SPECIAL OR CHANGED CIRCUMSTANCES THE
CHAIN BROADCASTING REGULATIONS SHOULD NOT BE APPLICABLE TO ANY
PARTICULAR SITUATION."  MOREOVER, IN ITS MINUTE OF OCTOBER 31, 1941,
DESIGNED PRIMARILY TO PROTECT THE INTERESTS OF STATION LICENSEES WHO
CONTEST THE VALIDITY OF THE REGULATIONS, THE COMMISSION AGAIN MADE IT
ABUNDANTLY CLEAR THAT THE REGULATIONS WERE NOT FINAL:  "IF A STATION
WISHES TO CONTEST THE VALIDITY OF THE CHAIN BROADCASTING REGULATIONS
...  , OR THE REASONABLENESS OF THEIR APPLICATION TO THE PARTICULAR
STATION, ITS LICENSE WILL BE SET FOR HEARING." 

THE REGULATIONS DO NOT, THEREFORE, COMMIT THE COMMISSION TO ANY
DEFINITIVE COURSE OF ACTION IN PASSING UPON APPLICATIONS FOR LICENSES. 
CONSISTENTLY WITH THE REGULATIONS (AND, PARENTHETICALLY, CONSISTENTLY
WITH THE AUTHORITY OF THE COMMISSION TO DEPART FROM GENERAL REGULATIONS
WHERE SUCH DEPARTURE IS IN THE PUBLIC INTEREST, SEE RADIO COMMISSION V.
NELSON BROS. CO., 289 U.S. 266, 285), THE COMMISSION IS FREE TO DILUTE
THEM WITH AMENDMENTS AND EXCEPTIONS.  THE CONSTRUCTION OF THE
REGULATIONS AND THEIR APPLICATION TO PARTICULAR SITUATIONS IS STILL IN
THE HANDS OF THE COMMISSION.  ADMINISTRATIVE ADJUDICATION IS STILL
OPEN.  BEFORE ITS COMPLETION IT IS NOT RIPE FOR JUDICIAL REVIEW. 

THE CHARACTERISTICS OF THE ADMINISTRATIVE DETERMINATIONS IN ALL THE
CASES ON WHICH THE COURT'S OPINION RELIES WERE WHOLLY DIFFERENT.  IN
EACH ONE THE FORCE OF THE LAW, EITHER THROUGH CRIMINAL PROSECUTION OR
INJUNCTION OR FINE OR SOME OTHER JUDICIAL REMEDY, COULD IMMEDIATELY BE
BROUGHT TO BEAR TO ENFORCE THE COMMAND OF THE ADMINISTRATIVE AGENCY. 
IN NONE OF THE CASES WAS AN ADMINISTRATIVE ACTION HELD REVIEWABLE WHICH
IN ITSELF ENTAILED NO IMMEDIATE LEGAL CONSEQUENCES. 

THUS, IN THE ASSIGNED CAR CASES, 274 U.S. 564, SUIT WAS BROUGHT UNDER
THE URGENT DEFICIENCIES ACT TO ANNUL AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION PRESCRIBING FOR ALL RAILROADS WITHIN ITS
JURISDICTION A RULE GOVERNING DISTRIBUTION OF CARS FOR THE
TRANSPORTATION OF BITUMINOUS COAL.  UNDER SEC. 402 OF THE
TRANSPORTATION ACT OF 1920, 41 STAT. 456, 476, 49 U.S.C. SEC.
1(12)(14), THE CARRIERS WERE REQUIRED "TO MAKE JUST AND REASONABLE
DISTRIBUTION OF CARS," AND THE COMMISSION WAS AUTHORIZED TO "ESTABLISH
REASONABLE RULES, REGULATIONS, AND PRACTICES WITH RESPECT TO CAR
SERVICE BY CARRIERS BY RAILROAD."  FAILURE OF A CARRIER TO COMPLY WITH
SUCH REGULATIONS ISSUED BY THE COMMISSION WAS DECLARED UNLAWFUL,
SUBJECTING THE CARRIER TO A FINE OF $100 FOR EACH OFFENSE.  SINCE THE
ORDER OF THE COMMISSION COMMANDED CARRIERS TO TAKE SPECIFIED ACTIONS,
AND SINCE THE FAILURE TO COMPLY WITH THE ORDER WOULD BRING IMMEDIATE
LEGAL SANCTIONS, THE ORDER WAS HELD REVIEWABLE. 

SIMILARLY, IN UNITED STATES V. B. & O.R. CO., 293 U.S. 454, THE
INTERSTATE COMMERCE COMMISSION REQUIRED RAILROADS SUBJECT TO ITS
JURISDICTION TO EQUIP LOCOMOTIVES WITH A SUITABLE TYPE OF POWER
OPERATED REVERSE GEAR.  THE BOILER INSPECTION ACT, 36 STAT. 913, 916,
EXPRESSLY PROVIDED THAT VIOLATION BY A CARRIER OF ANY RULE OR
REGULATION ISSUED BY THE COMMISSION UNDER THE ACT WAS PUNISHABLE BY A
FINE RECOVERABLE IN A CIVIL ACTION.  A SUIT UNDER THE URGENT
DEFICIENCIES ACT TO SET ASIDE THE COMMISSION'S ORDER WAS THEREFORE
ENTERTAINED. 

A.T. & T. CO. V. UNITED STATES, 299 U.S. 232, WAS A SUIT UNDER SEC.
402(A) OF THE COMMUNICATIONS ACT OF 1934, THE SAME PROVISION UPON WHICH
JURISDICTION OF THE PRESENT LITIGATION IS BASED, TO SET ASIDE AN ORDER
OF THE FEDERAL COMMUNICATIONS COMMISSION PRESCRIBING A UNIFORM SYSTEM
OF ACCOUNTS FOR TELEPHONE COMPANIES WITHIN THE ACT.  SECTION 220(A)
AUTHORIZED THE COMMISSION TO PRESCRIBE SUCH FORMS OF ACCOUNTS, AND SEC.
220(D) MADE THE FAILURE OR REFUSAL OF A COMPANY TO KEEP ACCOUNTS IN THE
MANNER PRESCRIBED BY THE COMMISSION UNLAWFUL, PUNISHABLE BY A $500
FORFEITURE FOR EACH DAY OF THE CONTINUANCE OF THE OFFENSE.  BECAUSE OF
THE LEGAL SANCTIONS IMMEDIATELY ATTACHING UPON ITS VIOLATION, THE ORDER
WAS HELD REVIEWABLE. 

IN INTERSTATE COMMERCE COMM'N V. GOODRICH TRANSIT CO., 224 U.S. 194,
THE COMMISSION, UNDER THE AUTHORITY VESTED IN IT BY SEC. 20 OF THE
INTERSTATE COMMERCE ACT, ISSUED ORDERS PRESCRIBING FORMS OF ACCOUNTS,
RECORDS, AND MEMORANDA AND CALLING FOR ANNUAL REPORTS OF CARRIERS BY
WATER.  SECTION 20(7) MADE IT UNLAWFUL FOR SUCH CARRIERS TO KEEP ANY
ACCOUNTS OTHER THAN THOSE PRESCRIBED BY THE COMMISSION.  A SUIT TO SET
ASIDE THE ORDERS WAS THEREFORE ENTERTAINED.  SIMILARLY, IN KANSAS CITY
SO. RY. V. UNITED STATES, 231 U.S. 423, SUIT WAS BROUGHT TO ANNUL
REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION PRESCRIBING A UNIFORM
BOOKKEEPING AND ACCOUNTING SYSTEM FOR INTERSTATE RAILWAY CARRIERS. 
SINCE CARRIERS WHO FAILED TO KEEP ACCOUNTS AS ORDERED BY THE
REGULATIONS WERE SUBJECT TO PENALTIES UNDER SEC. 20(7) OF THE ACT,
JURISDICTION WAS TAKEN.  AND IN CHICAGO, R.I. & P. RY. CO. V. UNITED
STATES, 284 U.S. 80, THE INTERSTATE COMMERCE COMMISSION PRESCRIBED CAR
HIRE SETTLEMENT RULES GOVERNING USE BY COMMON CARRIERS OF EACH OTHER'S
CARS.  VIOLATION OF SUCH RULES BY CARRIERS WAS DECLARED UNLAWFUL AND
SUBJECT TO FINES.  CONSEQUENTLY, A SUIT TO SET ASIDE THE RULES WAS
ENTERTAINED. 

OF COURSE, THE MERE FACT THAT AN ADMINISTRATIVE ORDER DETERMINES A
STATUS DOES NOT MEAN THAT IT IS NOT REVIEWABLE.  IF AN ADMINISTRATIVE
DETERMINATION OF STATUS HAS THE EFFECT OF SUBJECTING A PERSON TO LEGAL
OBLIGATIONS, WHETHER EMBODIED IN STATUTE OR PREVIOUSLY FORMULATED
ADMINISTRATIVE COMMANDS, OR OTHERWISE AFFECTING LEGAL RIGHTS, SUCH A
DETERMINATION POSSESSES THE ELEMENTS OF A REVIEWABLE ORDER.  THUS, IN
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, THE FEDERAL
COMMUNICATIONS COMMISSION HAD ISSUED ORDERS REQUIRING ALL TELEPHONE
CARRIERS SUBJECT TO THE COMMUNICATIONS ACT OF 1934 TO FILE SCHEDULES OF
THEIR CHARGES, COPIES OF CONTRACTS WITH OTHER CARRIERS, ETC.  SECTION
203(E) OF THE ACT PROVIDES THAT A CARRIER WHICH FAILS OR REFUSES TO
COMPLY WITH SUCH RULES OF THE COMMISSION SHALL FORFEIT $500 FOR EACH
OFFENSE, AND $25 FOR EACH DAY OF ITS CONTINUANCE.  AFTER INVESTIGATION
AND HEARING, THE COMMISSION DETERMINED THAT THE ROCHESTER TELEPHONE
CORPORATION WAS A TELEPHONE CARRIER SUBJECT TO THE ACT AND THEREFORE
SUBJECT TO THE PREVIOUSLY PROMULGATED GENERAL ORDERS DIRECTED TO
CARRIERS WITHIN THE COMMISSION'S JURISDICTION.  "THE ORDER OF THE
COMMUNICATIONS COMMISSION IN THIS CASE WAS THEREFORE REVIEWABLE.  IT
WAS NOT A MERE ABSTRACT DECLARATION REGARDING THE STATUS OF THE
ROCHESTER UNDER THE COMMUNICATIONS ACT, NOR WAS IT A STAGE IN AN
INCOMPLETE PROCESS OF ADMINISTRATIVE ADJUDICATION.  THE CONTESTED ORDER
DETERMINING THE STATUS OF THE ROCHESTER NECESSARILY AND IMMEDIATELY
CARRIED DIRECTION OF OBEDIENCE TO PREVIOUSLY FORMULATED MANDATORY
ORDERS ADDRESSED GENERALLY TO ALL CARRIERS AMENABLE TO THE COMMISSION'S
AUTHORITY.  INTO THIS CLASS OF CARRIERS THE ORDER UNDER DISPUTE COVERED
THE ROCHESTER, AND BY THAT FACT, IN CONJUNCTION WITH THE OTHER ORDERS,
MADE DETERMINATION OF THE STATUS OF THE ROCHESTER A REVIEWABLE ORDER OF
THE COMMISSION."  ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S.
AT 143-44.  COMPARE A.F. OF L. V. LABOR BOARD, 308 U.S. 401, 408. 
UNLIKE THE ACTION TAKEN BY THE FEDERAL COMMUNICATIONS COMMISSION IN THE
ROCHESTER CASE, ITS ACTION HERE CARRIED NO DIRECTIONS OF OBEDIENCE OF
ANY KIND TO ANYONE. 

IT IS SAID THAT THE REGULATIONS DERIVE LEGAL EFFECT THROUGH SEC.
312(A) GIVING THE COMMISSION AUTHORITY TO REVOKE LICENSES, AND THAT "BY
VIRTUE OF THE REGULATIONS ALONE," THE NETWORKS AND THEIR AFFILIATES ARE
NOW SUBJECTED TO LEGAL DETRIMENT.  BUT THIS IS MERELY ANOTHER WAY OF
PHRASING THE MAIN CONTENTION THAT THE REGULATIONS AT ONCE AND WITHOUT
OUT FURTHER ACTION BY THE COMMISSION RELEASE LEGAL SANCTIONS.  BUT THE
REGULATIONS HAVE NO SUCH EFFECT.  TO BE SURE, THE COMMISSION CAN REVOKE
A STATION LICENSE "BECAUSE OF CONDITIONS REVEALED BY SUCH STATEMENTS OF
FACT AS MAY BE REQUIRED FROM TIME TO TIME WHICH WOULD WARRANT THE
COMMISSION IN REFUSING TO GRANT A LICENSE ON AN ORIGINAL APPLICATION." 
BUT THE COMMISSION MAY NEVER REQUIRE A LICENSEE TO FILE A STATEMENT OF
FACT UNDER SEC. 312(A); ITS PROVISIONS MAY THEREFORE NEVER COME INTO
OPERATION.  IN ANY EVENT, THE REGULATIONS AS SUCH DO NOT SUBJECT
LICENSEES TO ANY SANCTIONS.  A LICENSE CAN BE REVOKED UNDER SEC. 312(A)
BECAUSE OF THE LICENSEE'S FAILURE TO OPERATE ITS STATION IN THE PUBLIC
INTEREST, AS REQUIRED BY THE STATUTE.  THE REGULATIONS ADOPTED BY THE
COMMISSION CANNOT OPERATE TO REVOKE ANY LICENSES.  IT IS ONLY AFTER A
PROCEEDING HAS BEEN STARTED (IN WHICH THE LICENSEE IS ENTITLED TO A
HEARING DURING WHICH THE REVOCATION ORDER IS SUSPENDED) AND ADVERSELY
CONCLUDED AGAINST A PARTY THAT LEGAL SANCTIONS COME INTO PLAY - THE
COMMISSION CAN BRING PROCEEDINGS TO ENFORCE ITS ORDER OF REVOCATION
AND, CORRESPONDINGLY, THE LICENSEE CAN BRING SUIT UNDER SEC. 402(A)
CHALLENGING THE VALIDITY OF THE COMMISSION'S TERMINATION OF THE
LICENSE. 

"ANY RULE, REGULATION, RESTRICTION, OR CONDITION MADE OR IMPOSED BY THE
COMMISSION UNDER AUTHORITY OF THIS ACT" SHALL BE A CRIMINAL OFFENSE. 
WOULD THE RENEWAL BY A LICENSEE OF ITS NETWORK-AFFILIATION CONTRACT
SUBJECT IT TO THE CRIMINAL PENALTIES IMPOSED BY SEC. 502?  OBVIOUSLY
NOT, FOR THE REGULATIONS DO NOT FORBID A LICENSEE FROM TAKING THAT OR
ANY OTHER ACTION.  AND, FOR THE SAME REASON, A LICENSE COULD NOT BE
REVOKED UNDER THE PROVISION OF SEC. 312(A) WHICH AUTHORIZES REVOCATION
"FOR VIOLATION OF OR FAILURE TO OBSERVE  ...  ANY REGULATION OF THE
COMMISSION AUTHORIZED BY THIS ACT.  ...  "  IF THE COMMISSION HAD
ISSUED REGULATIONS WHICH ORDERED LICENSEES TO DO OR REFRAIN FROM DOING
SOMETHING, THE PROBLEM WOULD BE ENTIRELY DIFFERENT.  VIOLATION BY A
LICENSEE OF SUCH A REGULATION WOULD BE GROUNDS FOR REVOCATION OF ITS
LICENSE, UNDER SEC. 312(A), AND FOR THE IMPOSITION OF CRIMINAL
PENALTIES, UNDER SEC. 502.  AND, THE OTHER REQUISITES BEING PRESENT,
SUCH A REGULATION COULD BE REVIEWED AS A FINAL ADMINISTRATIVE
DETERMINATION. 

THIS LEAVES ONLY THE SUGGESTION THAT SINCE THE ACTION TAKEN BY THE
COMMISSION, ALTHOUGH NOT THE COMPLETION OF ITS ADJUDICATORY PROCESS,
NEVERTHELESS DRASTICALLY AFFECTS SUBSTANTIAL BUSINESS INTERESTS, IT IS
PROPER FOR THE COURTS TO INTERCEDE AT THIS STAGE.  EVEN IF THIS
ARGUMENT WERE TO BE CONSIDERED AS IF IT HAD NEVER BEFORE BEEN MADE TO
AND REJECTED BY THIS COURT, ITS INFIRMITIES ARE OBVIOUS.  AS A
PRACTICAL MATTER, THE IMPACT UPON THE BUSINESS OPERATIONS OF THE
NETWORKS AND THEIR AFFILIATED STATIONS WOULD PROBABLY BE AS DISTURBING
AS IF THE POLICIES FORMULATED IN THE REGULATIONS HAD BEEN EXPRESSED
THROUGH A PRESS RELEASE, OR IF ONLY THE REPORT, WHICH IS NOT ONLY THE
FOUNDATION OF THE REGULATIONS BUT ALSO EMBODIES THEM, HAD BEEN
PUBLISHED WITHOUT THE REGULATIONS WHICH ARE ONLY THE SUMMARY OF THE
REPORT, OR IF CONGRESS ITSELF HAD INCORPORATED THESE REGULATIONS INTO
THE TEXT OF THE COMMUNICATIONS ACT.  IT WILL HARDLY BE ARGUED THAT ANY
OF THESE STEPS COULD BE THE SUBJECT OF JUDICIAL REVIEW BEFORE THE
COMMISSION ACTED UPON PARTICULAR APPLICATIONS.  BUT ASSUME THAT THE
GREATER FORMALITY GIVEN TO THE ANNOUNCEMENT OF THE COMMISSION'S
STATEMENT OF POLICY THROUGH THE REGULATIONS INTENSIFIED THE PRACTICAL
BUSINESS CONSEQUENCES.  CONGRESS HAS NOT CONFERRED UPON THE DISTRICT
COURTS JURISDICTION OVER "PRACTICAL BUSINESS CONSEQUENCES."  THEY CAN
REVIEW ACTION OF ADMINISTRATIVE AGENCIES ONLY WHEN THERE IS AN "ORDER,"
AND WHEN CONGRESS IN SEC. 402(A) MADE ONLY AN "ORDER" OF THE
COMMUNICATIONS COMMISSION REVIEWABLE, IT INCORPORATED THE SETTLED
DOCTRINE ESTABLISHED BY AN UNBROKEN SERIES OF DECISIONS IN THIS COURT
THAT THE COURTS COULD REVIEW ONLY A FINAL DETERMINATION BY AN AGENCY
WHEREBY ITS ADMINISTRATIVE PROCESS HAS BEEN CONCLUDED. 

THIS IS NOT THE FIRST TIME THAT THE FEDERAL COURTS HAVE BEEN URGED TO
SIT IN JUDGMENT UPON "PRACTICAL BUSINESS CONSEQUENCES" WHERE THE ACTION
TO BE REVIEWED DID NOT REPRESENT THE FINAL STAGE OF ADMINISTRATIVE
ADJUDICATION.  THE ARGUMENTS MADE IN THIS CASE HAVE BEEN MADE IN THE
PAST BUT HERETOFORE HAVE ALWAYS BEEN REJECTED BY THIS COURT.  THE
CLASSIC FORMULATION AND APPLICATION OF THE DOCTRINE OF FINALITY AS TO
ORDERS UNDER THE URGENT DEFICIENCIES ACT WAS CONTAINED IN UNITED STATES
V. LOS ANGELES & S.L.R. CO., 273 U.S. 299.  IN VIEW OF THE THOROUGHNESS
OF THE ARGUMENT AT THE BAR, AND THE WEIGHTINESS OF THE OPINION, THAT
CASE HAS EVER SINCE BEEN REGARDED AS FURNISHING THE GUIDEPOSTS IN THIS
FIELD OF LAW.  IT SHOULD GOVERN HERE. 

SUIT WAS BROUGHT THERE TO ANNUL AND ENJOIN AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION DETERMINING THE FINAL VALUATION FOR RATE-MAKING
PURPOSES OF THE LOS ANGELES & SALT LAKE RAILROAD COMPANY, WHICH
OPERATED A THOUSAND MILES OF RAILROAD LINES.  THE VALUATION FIXED BY
THE COMMISSION WAS $45,200,000; THE CARRIER CLAIMED THAT, IF THE
COMMISSION HAD EMPLOYED PROPER STANDARDS OF VALUATION, THE FIGURE WOULD
BE $70,000,000, A DIFFERENCE OF $24,800,000.  AT THE TIME SUIT WAS
BROUGHT, APPROXIMATELY 250,000 MILES OF RAILROAD LINES THROUGHOUT THE
COUNTRY WERE UNDERGOING VALUATION.  THE VALIDITY OF THE CRITERIA
EMPLOYED BY THE COMMISSION IN THE CASE OF THE LOS ANGELES & SALT LAKE
RAILROAD COMPANY WAS THEREFORE OF ENORMOUS NATIONAL SIGNIFICANCE.  IN
THE WORDS OF COMMISSIONER EASTMAN, "THIS CASE DEALS WITH AN ISSUE OF
GREATER MOMENT TO THE COUNTRY THAN ANY THAT WE HAVE EVER DETERMINED." 
75 I.C.C. 523.  THESE ISSUES, INVOLVING PRACTICALLY EVERY PHASE OF
VALUATION LAW, WERE CANVASSED IN AN ADVERSARY PROCEEDING BEFORE THE
COMMISSION LASTING NEARLY A YEAR AND A HALF, RESULTING IN A REPORT OF
ONE HUNDRED AND FORTY PAGES, AND EXPRESSED IN A FORMAL "ORDER" OF TEN
PAGES.  COUNSEL FOR THE RAILROAD COMPANY THERE, AS DO COUNSEL FOR THE
BROADCASTING COMPANY HERE, RELIED UPON THE PRACTICAL FINALITY OF THE
ORDER AS A BASIS FOR REVIEW:  "AS A PRACTICAL MATTER, THE COMMISSION IN
ANY AND ALL PROCEEDINGS IN WHICH IT HAS OCCASION TO USE THIS VALUATION
WILL GIVE IT NOT PRIMA FACIE BUT CONCLUSIVE EFFECT.  IN THE VALUATION
PROCEEDING BEFORE THE COMMISSION WHICH RESULTED IN THIS ORDER
PETITIONER INTRODUCED ITS EVIDENCE OF THE VALUE OF THE PROPERTIES AND
THE PROCEEDING RESULTED IN A VALUATION GREATLY AT VARIANCE WITH THE
EVIDENCE AND CONTENTIONS OF PETITIONER.  NO GREATER EFFECT WILL BE
GIVEN TO EVIDENCE WHICH PETITIONER MAY INTRODUCE IN SOME FUTURE
PROCEEDING BEFORE THE COMMISSION IN AN ATTEMPT TO OVERCOME THE PRIMA
FACIE EFFECT ACCORDED BY THE ACT TO THIS VALUATION ORDER.  THEREFORE,
UNLESS AND UNTIL SET ASIDE AND ANNULLED, THIS VALUATION WILL STAND AS A
CONTINUING MENACE AGAINST PETITIONER, AND MAY BE REPEATEDLY USED TO
PETITIONER'S PREJUDICE IN RATE, DIVISION, CONSOLIDATION, SECURITY-ISSUE
AND RECAPTURE PROCEEDINGS."  BRIEF FOR APPELLEE, PP. 64-65. 

THE COURT SPECIFICALLY REFERRED TO THIS ARGUMENT OF COUNSEL:  "ONE
(ARGUMENT IN SUPPORT OF JURISDICTION) IS THAT SINCE THE COMMISSION HAS
BY REASON OF ERRORS OF LAW AND OF JUDGMENT GROSSLY UNDERVALUED THE
PROPERTY, ITS REPORT WILL, UNLESS SUPPRESSED, INJURE THE CREDIT OF THE
CARRIER WITH THE PUBLIC."  FINDING, HOWEVER, THAT THE ORDER DID NOT
FINALLY DETERMINE ANY LEGAL RIGHTS, THE COURT REFUSED REVIEW:  "ITS
(THE COMMISSION'S) CONCLUSIONS, IF ERRONEOUS IN LAW, MAY BE
DISREGARDED.  BUT NEITHER ITS UTTERANCES, NOR ITS PROCESSES OF
REASONING, AS DISTINGUISHED FROM ITS ACTS, ARE A SUBJECT FOR
INJUNCTION."  273 U.S. AT 314-15.  FN1 

TO ARGUE THAT IRREPARABLE INJURY IMPLIES REVIEWABILITY IS, IN EFFECT,
TO CONTEND THAT THERE MUST BE A REMEDY BECAUSE THE PLAINTIFF CLAIMS
SERIOUS DAMAGE.  BUT IN THESE SITUATIONS - IN REVIEWING "ORDERS" UNDER
THE URGENT DEFICIENCIES ACT - FEDERAL COURTS CAN GIVE A REMEDY ONLY TO
ENFORCE A LEGAL RIGHT, AND A LEGAL RIGHT CANNOT BE DERIVED MERELY BY
CONCLUDING THAT A PARTICULAR CLAIM OF HARDSHIP SHOULD AFFORD A REMEDY. 
WHILE FORMALLY WE MAY APPEAR TO BE DEALING WITH TECHNICALITIES, BEHIND
THESE CONSIDERATIONS LIE DEEP ISSUES OF POLICY IN THE DIVISION OF
AUTHORITY AS BETWEEN ADMINISTRATIVE AGENCIES AND COURTS IN CARRYING OUT
THE CONSTITUTIONAL WILL OF CONGRESS.  THE SOURCE OF THE MISCONCEPTION
UNDERLYING THE CLAIM FOR EQUITABLE RELIEF IN THIS CASE IS THE
ASSUMPTION THAT THIS IS MERELY AN ORDINARY INVOCATION OF EQUITY, AS
THOUGH IT WERE A CONTROVERSY BETWEEN TWO LITIGANTS OF WHICH ONLY THE
COURTS ARE OR CAN BE SEIZED.  WHAT WE ARE HERE CONCERNED WITH IS DUE
REGARD FOR THE PROPER DISTRIBUTION MADE BY CONGRESS OF LEGAL AUTHORITY
AS BETWEEN TWO LAW-ENFORCING AGENCIES OF GOVERNMENT, THE ADMINISTRATIVE
AND THE JUDICIAL.  SEE UNITED STATES V. MORGAN, 307 U.S. 183, 190-91;
FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S.
134. 

THIS CASE ILLUSTRATES ANEW THE INFLUENCE OF A PARTICULAR INSTANCE OF
FELT HARDSHIP IN DERAILING LEGAL PRINCIPLES FROM CUSTOMARY TRACKS.  BUT
THIS IS NOT AN ISOLATED CASE.  IF THREATENED DAMAGE THROUGH GENERAL
PRONOUNCEMENT OF POLICY FOR FUTURE ADMINISTRATIVE ACTION, EVEN IF CAST
IN THE FORMAL LANGUAGE OF A REGULATION, IS TO GIVE RISE TO EQUITABLE
REVIEW APART FROM THE RULE THAT JUDICIAL REVIEW IS PREMATURE BECAUSE OF
WANT OF ADMINISTRATIVE FINALITY, THE SAME BASIS OF IRREPARABLE HARM
WHICH IS HERE EQUATED TO JURISDICTION WILL BEAR RICH LITIGIOUS FRUIT IN
THE CASE OF "REGULATIONS" ISSUED BY THE SECURITIES AND EXCHANGE
COMMISSION WHICH ARE DAMAGING IN THEIR IMMEDIATE REPERCUSSIONS TO STOCK
EXCHANGE AND HOLDING COMPANIES, OR REGULATIONS ANNOUNCED BY THE
TREASURY FOR THE GUIDANCE OF TAXPAYERS BUT WHICH ADVERSELY AFFECT
BUSINESS INTERESTS, OR REGULATIONS BY THE FEDERAL POWER COMMISSION,
ETC.  SUPPOSE, FOR EXAMPLE, THAT THE COMMISSIONER OF INTERNAL REVENUE
ISSUES A RULING THAT PROFITS DERIVED BY RADIO STATIONS FROM THEIR
NETWORK OPERATIONS ARE SUBJECT TO A TAX DEEMED BY THEM ONEROUS AND
ILLEGAL.  COULD A NETWORK SUCCESSFULLY BRING A SUIT IN EQUITY PRIOR TO
THE IMPOSITION OF SUCH TAXES TO INVALIDATE THE RULING ON THE GROUND
THAT ITS PRACTICAL CONSEQUENCE WAS THE CANCELLATION OF OR REFUSAL TO
RENEW NETWORK AFFILIATIONS?  ONE HAD SUPPOSED THAT THE ANSWER WAS
CLEARLY NO. BUT SURELY IN PRINCIPLE THE PROBLEM IS ESSENTIALLY THAT OF
THE CASES BEFORE US.    A FINAL CONSIDERATION REMAINS.  WE ARE NOT
DEALING WITH THE REVIEWABILITY OF ADMINISTRATIVE ORDERS IN VACUO.  THE
REVIEWABILITY OF AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION
DEPENDS UPON THE STATUTORY SCHEME OF JUDICIAL REVIEW EMBODIED IN SEC.
402 OF THE COMMUNICATIONS ACT OF 1934.  THEREFORE, EVEN IF THE
REGULATIONS COULD BE DEEMED TO POSSESS THE ESSENTIAL ATTRIBUTES OF A
REVIEWABLE ORDER, IT WOULD NOT INEVITABLY FOLLOW THAT THE ORDER IS
REVIEWABLE IN THE MANNER PROVIDED FOR BY SEC. 402(A) OF THE ACT.  THE
SCOPE AND HISTORICAL BACKGROUND OF THE PROVISIONS FOR JUDICIAL REVIEW
CONTAINED IN THE COMMUNICATIONS ACT OF 1934 HAVE TOO RECENTLY BEEN
CANVASSED, SEE SCRIPPS-HOWARD RADIO V. FEDERAL COMMUNICATIONS COMM'N,
ANTE, P. 4; FEDERAL COMMUNICATIONS COMM'N V. COLUMBIA BROADCASTING
SYSTEM, 311 U.S. 132; FEDERAL COMMUNICATIONS COMM'N V. POTTSVILLE
BROADCASTING CO., 309 U.S. 134, TO REQUIRE DETAILED CONSIDERATION
HERE.  BRIEFLY, THE ACT CREATED TWO AVENUES BY WHICH ORDERS OF THE
FEDERAL COMMUNICATIONS COMMISSION WERE OPEN TO REVIEW BY THE FEDERAL
COURTS.  UNDER SEC. 402(A), INCORPORATING THE PROVISIONS OF THE URGENT
DEFICIENCIES ACT OF OCTOBER 22, 1913, 38 STAT. 208, 219, RELATING TO
JUDICIAL REVIEW OF ORDERS OF THE INTERSTATE COMMERCE COMMISSION, A SUIT
TO ENFORCE, SET ASIDE, ANNUL, OR SUSPEND AN ORDER OF THE FEDERAL
COMMUNICATIONS COMMISSION MAY BE BROUGHT IN A SPECIALLY CONSTITUTED
DISTRICT COURT, WITH A RIGHT OF DIRECT APPEAL TO THIS COURT, ONLY IF
THE ORDER DOES NOT FALL WITHIN THE EXCEPTIONS ENUMERATED BY SEC.
402(B), NAMELY, ORDERS GRANTING OR DENYING APPLICATIONS FOR STATION
LICENSES OR CONSTRUCTION PERMITS AND FOR RENEWAL OR MODIFICATION OF
LICENSES.  REVIEW OF THE ORDERS COMPREHENDED WITHIN SEC. 402(B) IS
AVAILABLE ONLY THROUGH AN APPEAL TO THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA, WITH NO RIGHT OF DIRECT APPEAL TO THIS COURT. 

IF THE REGULATIONS DO CONSTITUTE AN ORDER, WHAT KIND OF AN ORDER CAN
IT BE?  IT MUST BE IN THE NATURE OF A BLANKET DENIAL, OPERATING IN
FUTURO, TO BE SURE, OF APPLICATIONS FOR RENEWAL OF STATION LICENSES. 
BUT THE ACT EXPRESSLY PRECLUDES JUDICIAL REVIEW OF ORDERS DENYING
RENEWAL APPLICATIONS OF LICENSEES IN ANY MANNER OTHER THAN THAT
PRESCRIBED BY SEC. 402(B), TO WIT, BY AN APPEAL TO THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA.  AS THE COURT BELOW HELD, THE EFFECT OF
TAKING JURISDICTION IN THESE CASES IS TO SUBSTITUTE A DIFFERENT COURT
AND A DIFFERENT PROCEDURE FOR THOSE SPECIFIED BY CONGRESS.  THIS COURT
HAS NOT IN THE PAST DISPLAYED SUCH AN INDIFFERENCE TO THE
PARTICULARITIES OF LEGISLATION DEFINING THE JURISDICTION OF THE LOWER
FEDERAL COURTS.  ON THE CONTRARY, ONLY LAST TERM DID THE COURT INSIST
UPON STRICT COMPLIANCE WITH THE STATUTORY SCHEME FOR JUDICIAL REVIEW
ESTABLISHED BY THE COMMUNICATIONS ACT OF 1934.  SEE FEDERAL
COMMUNICATIONS COMM'N V. COLUMBIA BROADCASTING SYSTEM, 311 U.S. 132. 

EVEN IF WE WERE FREE TO DISREGARD THE SCHEME FOR JUDICIAL REVIEW
WHICH CONGRESS HAS ESTABLISHED, I COULD NOT AGREE THAT AN APPEAL UNDER
SEC. 402(B) WOULD NOT BE AN ADEQUATE MEANS FOR TESTING THE CLAIMS MADE
IN THE PRESENT LITIGATION.  THERE IS ESSENTIALLY ONLY ONE ISSUE ON THE
MERITS IN THIS PROCEEDING, NAMELY, WHETHER THE ADOPTION BY THE
COMMISSION OF THE POLICIES EXPRESSED IN THE REGULATIONS TRANSGRESSES
ITS STATUTORY AND CONSTITUTIONAL AUTHORITY.  BUT THIS ISSUE COULD BE
RAISED AND FULLY DETERMINED IN AN APPEAL UNDER SEC. 402(B) FROM AN
ORDER DENYING A RENEWAL APPLICATION.  INDEED, IN ITS MINUTE OF OCTOBER
31, 1941, THE COMMISSION EXPLICITLY STATED THAT THE VALIDITY OF THE
REGULATIONS COULD BE PUT IN ISSUE IN A RENEWAL PROCEEDING.  IF
ANYTHING, THEREFORE, THE ISSUES IN AN APPEAL UNDER SEC. 402(B) WOULD BE
BROADER AND NOT NARROWER THAN THE ISSUES HERE.  MOREOVER, SINCE THE
REASONABLENESS OF THE APPLICATION OF THE REGULATIONS TO THE PARTICULAR
SITUATION WOULD ALSO BE IN ISSUE IN THE RENEWAL PROCEEDING, THE
REVIEWING COURT WOULD HAVE BEFORE IT A RECORD CONTAINING ELEMENTS OF
CONCRETENESS AND PARTICULARITY NOT PRESENT IN THE RECORD NOW BEFORE
US. 

THE COMMISSION'S MINUTE ENABLES A LICENSEE TO CONTEST THE VALIDITY OF
THE REGULATIONS, OR THE REASONABLENESS OF APPLYING THEM TO THE
PARTICULAR CASE, WITHOUT FEAR OF LOSING ITS LICENSE.  "IN ORDER TO
INSURE THAT THE STATION MAY REMAIN ON THE AIR AND BE IN NO WAY INJURED
BY ANY SUCH COMMISSION PROCEEDING (CONTESTING THE VALIDITY OF THE
REGULATIONS) AND APPEAL TO COURT FROM A DECISION IN SUCH PROCEEDING,
THE COMMISSION WILL GRANT SUCH LICENSEE A TEMPORARY EXTENSION OF ITS
LICENSE, WITH RENEWALS FROM TIME TO TIME UNTIL THERE HAS BEEN A FINAL
DETERMINATION OF THE ISSUES RAISED AT SUCH HEARING.  IN THE EVENT OF
SUCH LITIGATION, AND IF THE VALIDITY OF THE APPLICATION OF THE CHAIN
BROADCASTING REGULATIONS TO SUCH LICENSEE IS SUSTAINED BY THE COURTS,
THE COMMISSION WILL NEVERTHELESS GRANT A REGULAR LICENSE TO THE
LICENSEE, OTHERWISE ENTITLED THERETO, WHO HAS UNSUCCESSFULLY LITIGATED
THAT ISSUE, IF THE LICENSEE THEREUPON CONFORMS TO THE DECISION." 

PLAINLY, THEREFORE, A LICENSEE IS UNDER NO COMPULSION TO CANCEL OR
MODIFY ITS AFFILIATION CONTRACT.  LICENSEES WHO REGARD THE REGULATIONS
AS INVALID ARE FREE TO CONTINUE THEIR EXISTING CONTRACTS AND AT THE
SAME TIME CHALLENGE THE REGULATIONS IN THE ORDERLY MANNER PROVIDED BY
THE ACT - AND WITHOUT ANY DANGER OF LOSING THEIR RIGHT TO CONTINUE
BROADCASTING.  SIMILARLY, THE INTERESTS OF THE NETWORKS MAY BE
PROTECTED THROUGH INTERVENTION IN RENEWAL PROCEEDINGS.  UNDER THE
COMMISSION'S PROCEDURE, RULE 1.102 OF THE RULES OF PRACTICE AND
PROCEDURE, WHERE A RENEWAL APPLICATION IS DESIGNATED FOR HEARING
BECAUSE OF THE LICENSEE'S CONTRACTUAL ARRANGEMENTS WITH OTHERS, THE
LATTER ARE CUSTOMARILY PERMITTED TO INTERVENE.  SEE, FOR EXAMPLE,
APPLICATION OF E. J. REGAN AND F. ARTHUR BOSTWICK, DOCKET NO. 5788;
APPLICATION OF JOHN H. STENGER, JR., DOCKET NO. 5430. 

WE NEED GO NO FARTHER THAN THIS LITIGATION TO PERCEIVE THE
UNFORTUNATE EFFECTS OF PREMATURE JUDICIAL REVIEW.  THE CHAIN
BROADCASTING REGULATIONS WERE ISSUED ON MAY 2, 1941, MORE THAN A YEAR
AGO.  THEY WERE ADOPTED BY THE COMMISSION AS A CONSEQUENCE OF ITS
FINDING, AFTER AN INVESTIGATION LASTING MORE THAN THREE YEARS, THAT
CERTAIN FEATURES OF NETWORK-AFFILIATION CONTRACTS PREVENTED LICENSEES
FROM EFFECTIVELY DISCHARGING THEIR OBLIGATION TO RENDER THE FULLEST
SERVICE TO THE LISTENING PUBLIC.  THE POLICY FORMULATED BY THE
COMMISSION MAY OR MAY NOT BE WISE - THAT IS NOT OUR CONCERN.  BUT WE
CANNOT BLINK THE FACT THAT THIS LITIGATION HAS FOR MORE THAN A YEAR
PREVENTED THE COMMISSION FROM TESTING BY EXPERIENCE THE PRACTICAL
WISDOM OF A POLICY FOUND BY IT TO BE REQUIRED BY THE PUBLIC INTEREST. 
THE COMMENCEMENT OF A PROCEEDING UNDER SEC. 402(B) WOULD NOT HAVE
PRESENTED THE JURISDICTIONAL PROBLEMS PRESENT IN THIS PROCEEDING. 
SURELY THOSE DESIROUS OF A SPEEDY ADJUDICATION OF THE ISSUE OF THE
VALIDITY OF THE REGULATIONS WERE AWARE THAT THE COMMENCEMENT OF A
PROCEEDING UNDER SEC. 402(A) WOULD NOT PRODUCE A PROMPT ADJUDICATION ON
THE MERITS, BUT THAT IT WOULD INSTEAD RESULT IN POSTPONING FOR A
CONSIDERABLE PERIOD THE EFFECTIVE DATE OF THE REGULATIONS, WITH ALL THE
CONTINGENT ADVANTAGES AFFORDED BY SUCH POSTPONEMENT. 

HARDSHIP THERE MAY WELL COME THROUGH ACTION OF AN ADMINISTRATIVE
AGENCY.  BUT TO SLIDE FROM RECOGNITION OF A HARDSHIP TO ASSERTION OF
JURISDICTION IS ONCE MORE TO ASSUME THAT ONLY THE COURTS ARE THE
GUARDIANS OF THE RIGHTS AND LIBERTIES OF THE PEOPLE.  IN DENYING THAT
IT HAD POWER TO REVIEW THE ACTION OF THE FEDERAL COMMUNICATIONS
COMMISSION BECAUSE THAT BODY HAD NOT YET DETERMINED A LEGAL RIGHT, THE
COURT BELOW, AS JUDGE LEARNED HAND'S OPINION ABUNDANTLY PROVES, WAS NOT
RESPECTING A RULE OF ETIQUETTE.  ON THE CONTRARY, IT MERELY RECOGNIZED
THAT THE FEDERAL COURTS ARE ENTRUSTED WITH THE CORRECTION OF
ADMINISTRATIVE ERRORS OR WRONG-DOING ONLY TO THE EXTENT OF
CONGRESSIONAL AUTHORIZATION.  TO SAY THAT THE COURTS SHOULD REJECT THE
DOCTRINE OF ADMINISTRATIVE FINALITY AND TAKE JURISDICTION WHENEVER
ACTION OF AN ADMINISTRATIVE AGENCY MAY SERIOUSLY AFFECT SUBSTANTIAL
BUSINESS INTERESTS, REGARDLESS OF HOW INTERMEDIATE OR INCOMPLETE THE
ACTION MAY BE, IS, IN EFFECT, TO IMPLY THAT THE PROTECTION OF LEGAL
INTERESTS IS ENTRUSTED SOLELY TO THE COURTS.  THE UNBROKEN CURRENT OF
THIS COURT'S DECISIONS IN CONSTRUING THE SCOPE OF JUDICIAL REVIEW UNDER
THE URGENT DEFICIENCIES ACT, AND WHICH IS THE ONLY WARRANT FOR
JURISDICTION IN THIS CASE, REPELS SUCH A CONTENTION.  THE DECISION
SHOULD THEREFORE BE AFFIRMED. 

FN1  TO THE SAME EFFECT IS UNITED STATES V. ILLINOIS CENTRAL R. CO.,
244 U.S. 82.  THERE THE INTERSTATE COMMERCE COMMISSION ISSUED AN ORDER
FIXING THE TIME AND PLACE FOR HEARING COMPLAINTS MADE BY VARIOUS COAL
COMPANIES SEEKING DAMAGES AGAINST RAILROADS FOR FAILING TO SUPPLY A
SUFFICIENT NUMBER OF COAL CARS FOR THEIR SHIPPING NEEDS.  THE RAILROADS
BROUGHT SUIT UNDER THE URGENT DEFICIENCIES ACT TO ANNUL THIS ORDER,
ALLEGING THAT UNLESS THE HEARING WERE RESTRAINED, THE RAILROADS WOULD
BE PUT TO ENORMOUS EXPENSE AND INCONVENIENCE.  THE COURT HELD THAT THE
NOTICE OF HEARING "HAD NO CHARACTERISTIC OF AN ORDER, AFFIRMATIVE OR
NEGATIVE," AND SINCE IT "WAS A MERE INCIDENT IN THE PROCEEDING," THE
SUIT COULD NOT BE ENTERTAINED.  244 U.S. AT 89. 

MR. JUSTICE REED AND MR. JUSTICE DOUGLAS JOIN IN THIS DISSENT. 
..END :















NAT. BROADCASTING CO. V. U.S., 316 U.S. 447 


NO. 1025.  ARGUED APRIL 30, MAY 1, 1942.  - DECIDED JUNE 1, 1942.  - 44
F.SUPP.  688, REVERSED. 


DECIDED IN ACCORDANCE WITH NO. 1026, COLUMBIA BROADCASTING SYSTEM V.
UNITED STATES, ANTE, P. 407.  P. 449. 

NATIONAL BROADCASTING CO., INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF THE DISTRICT COURT DISMISSING FOR WANT OF
JURISDICTION A BILL TO SET ASIDE AN ORDER OF THE FEDERAL COMMUNICATIONS
COMMISSION. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO COLUMBIA BROADCASTING SYSTEM V. UNITED
STATES, ANTE, P. 407.  BOTH PRESENT SUBSTANTIALLY SIMILAR FACTS AND THE
SAME ISSUES OF LAW. 

APPELLANT, NATIONAL BROADCASTING COMPANY, MAINTAINS TWO RADIO
BROADCASTING SYSTEMS, THE "BLUE NETWORK" AND THE "RED NETWORK."  THE
TWO OTHER APPELLANTS OPERATE RADIO BROADCASTING STATIONS LICENSED BY
THE COMMUNICATIONS COMMISSION, AND HAVE ENTERED INTO CONTRACTS WITH
NATIONAL SIMILAR TO THOSE INVOLVED IN THE COLUMBIA CASE AND TO THOSE OF
OTHER STATIONS WHICH PARTICIPATE IN NATIONAL'S NETWORKS. 

APPELLANTS BROUGHT THE PRESENT SUIT IN THE SOUTHERN DISTRICT OF NEW
YORK TO SET ASIDE THE ORDER OF THE COMMISSION OF MAY 2, 1941, AS
AMENDED BY ITS ORDER OF OCTOBER 11, 1941, PROMULGATING THE CHAIN
BROADCASTING REGULATIONS WHICH WE CONSIDERED IN THE COLUMBIA CASE, ON
THE GROUNDS THAT THE ORDER IS BEYOND THE COMMISSION'S STATUTORY
AUTHORITY OR, IF WITHIN IT, THAT THE STATUTE IS AN UNCONSTITUTIONAL
DELEGATION OF THE LEGISLATIVE POWER OF CONGRESS IN VIOLATION OF ARTICLE
I, SEC. 1 OF THE CONSTITUTION, AND OPERATES TO DEPRIVE APPELLANTS OF
PROPERTY WITHOUT THE DUE PROCESS OF LAW GUARANTEED BY THE FIFTH
AMENDMENT. 

THE DISTRICT COURT OF THREE JUDGES DISMISSED THE COMPLAINT, 44
F.SUPP.  688, HOLDING THAT THE COMMISSION'S ORDER IS NOT REVIEWABLE
UNDER THE PROVISIONS OF SEC. 402(A) OF THE COMMUNICATIONS ACT OF 1934,
48 STAT. 1093, 47 U.S.C. SEC. 402(A), AND THE URGENT DEFICIENCIES ACT,
38 STAT. 219, 28 U.S.C. SEC. 47, BUT STAYED THE OPERATION OF THE ORDER
PENDING DIRECT APPEAL TO THIS COURT. 

ACCORDING TO THE ALLEGATIONS OF THE BILL OF COMPLAINT, NATIONAL
CONDUCTS ITS BROADCASTING BUSINESS IN SUBSTANTIALLY THE SAME MANNER AS
COLUMBIA.  IT ESTABLISHES TELEPHONE WIRE CONNECTIONS WITH LICENSED
BROADCASTING STATIONS WITH WHICH IT ENTERS INTO CONTRACTS FOR LIMITED
PERIODS FOR CHAIN BROADCASTING OF ITS RADIO PROGRAMS.  THESE CONTRACTS
DO NOT REQUIRE THAT THE STATION SHALL BROADCAST THE PROGRAMS OF NO
OTHER CHAIN THAN NATIONAL.  BUT A FEATURE OF THEM IS THE OPTION GIVEN
TO NATIONAL FOR USE OF THE STATION ON 28 DAYS' NOTICE FOR CERTAIN
SPECIFIED PERIODS OF RADIO TIME IN BROADCASTING COMMERCIAL NETWORK
PROGRAMS PROVIDED BY NATIONAL.  IT IS ALLEGED THAT, BECAUSE OF THE
CONTRACT PROVISIONS, THE REGULATIONS WILL REQUIRE THE STATIONS
AFFILIATED WITH NATIONAL TO ABANDON THEIR CONTRACTS OR LOSE THEIR
LICENSES EITHER BY THE COMMISSION'S CANCELLATION OF OR REFUSAL TO RENEW
THEM.  THE BILL OF COMPLAINT MAKES A SUFFICIENT SHOWING OF IRREPARABLE
INJURY TO NATIONAL, INCLUDING AN ALLEGATION THAT FORTY-EIGHT AFFILIATED
STATIONS HAVE SERVED NOTICE OF ABROGATION OF THE CONTRACTS. 

FOR THE REASONS STATED AT LENGTH IN THE OPINION IN THE COLUMBIA CASE,
WE HOLD THAT THE ORDER OF THE COMMISSION IS REVIEWABLE IN THE PRESENT
SUIT BY THE DISTRICT COURT OF THREE JUDGES.  THE BILL OF COMPLAINT
STATES A CAUSE OF ACTION IN EQUITY.  THE JUDGMENT WILL ACCORDINGLY BE
REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS. 

UNLIKE THE COLUMBIA CASE, THE RECORD DISCLOSES NO FACTS SHOWING WHAT
EFFECT THE COMMISSION'S MINUTE ADOPTED AFTER THE PRESENT SUIT WAS
BROUGHT HAS HAD OR WILL HAVE UPON THE CANCELLATION OF APPELLANTS'
CONTRACTS BY THE AFFILIATED STATIONS.  SO FAR AS RELEVANT THAT WILL BE
A MATTER FOR CONSIDERATION BY THE COURT BELOW, AS WILL BE THE QUESTION,
NOT CONSIDERED HERE, WHETHER THE APPELLANTS OTHER THAN NATIONAL ARE
PROPER PARTIES PLAINTIFF. 

AS IN THE COLUMBIA CASE THE STAY NOW IN EFFECT WILL BE CONTINUED, ON
TERMS TO BE SETTLED BY THE COURT BELOW.  REVERSED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE REED, MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS
DISSENT FOR THE REASONS SET FORTH IN THE DISSENTING OPINION IN COLUMBIA
BROADCASTING SYSTEM V. UNITED STATES, ANTE, P. 407. 
..END :







AMERICAN CHICLE CO. V. U.S., 316 U.S. 450 


NO. 913.  ARGUED APRIL 29, 1942.  - DECIDED JUNE 1, 1942.  - 94 CT.CLS. 
699, 41 F.SUPP.  537, AFFIRMED. 


1.  UNDER SEC. 131(F) OF THE REVENUE ACTS OF 1936 AND 1938, ALLOWING
TO A DOMESTIC CORPORATION IN RESPECT OF DIVIDENDS RECEIVED FROM A
FOREIGN SUBSIDIARY, A TAX CREDIT OF THAT PROPORTION OF "TAXES PAID" BY
THE SUBSIDIARY WHICH THE AMOUNT OF THE DIVIDEND BEARS TO THE AMOUNT OF
THE SUBSIDIARY'S "ACCUMULATED PROFITS" (I.E., ITS INCOME LESS TAXES
THEREON), THE WORDS "TAXES PAID" ARE PROPERLY CONSTRUED AS MEANING SO
MUCH OF THE SUBSIDIARY'S TAXES AS ARE ATTRIBUTABLE TO ITS "ACCUMULATED
PROFITS," OR THE SAME PROPORTION OF THE TOTAL TAXES WHICH THE
ACCUMULATED PROFITS BEAR TO THE TOTAL PROFITS.  P. 452. 

2.  A CHANGE BY THE COMMISSIONER OF INTERNAL REVENUE IN THE
ADMINISTRATIVE PRACTICE, TO CONFORM TO THE PLAIN MEANING OF THE REVENUE
ACT, AND OPERATING PROSPECTIVELY, IS NOT PRECLUDED BY AN ANTECEDENT
ADMINISTRATIVE INTERPRETATION THOUGH OF LONG STANDING.  P. 454. 

AMERICAN CHICLE CO. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 315 U.S. 793, TO REVIEW THE DISMISSAL OF A SUIT TO
RECOVER AN ALLEGED OVERPAYMENT OF INCOME TAXES. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE APPLICATION OF SEC. 131(F) OF THE REVENUE ACTS
OF 1936 AND 1938,  FN1 WHICH ALLOWS A TAX CREDIT TO DOMESTIC
CORPORATIONS IN RESPECT OF INCOME RECEIVED FROM FOREIGN SUBSIDIARIES. 

DURING THE TAXABLE YEARS 1936, 1937, AND 1938, THE PETITIONER, A
DOMESTIC CORPORATION, RECEIVED DIVIDENDS FROM FOREIGN SUBSIDIARIES OF
WHICH IT WAS SOLE STOCKHOLDER.  THE SUBSIDIARIES PAID TAXES UPON THEIR
EARNINGS TO THE COUNTRIES OF THEIR DOMICILE.  IN ITS INCOME TAX
RETURNS, THE PETITIONER CLAIMED THE CREDIT ALLOWED BY SEC. 131 FOR THE
FOREIGN TAXES SO PAID.  THE COMMISSIONER OF INTERNAL REVENUE COMPUTED
THE CREDIT AT A LESS SUM THAN THAT THE PETITIONER CLAIMED.  THE
PETITIONER PAID THE RESULTANT TAXES, AND PRESENTED CLAIMS FOR REFUND,
WHICH WERE REJECTED.  THIS ACTION WAS BROUGHT IN THE COURT OF CLAIMS
FOR ASSERTED OVERPAYMENTS. 

THE SOLE MATTER IN CONTROVERSY IS THE PROPER METHOD OF ARRIVING AT
THE CREDIT GRANTED BY SEC. 131.  THAT SECTION PERMITS A DOMESTIC
CORPORATION TO CREDIT AGAINST ITS TAX THE AMOUNT OF INCOME, WAR
PROFITS, AND EXCESS-PROFITS TAXES PAID OR ACCRUED DURING THE TAXABLE
YEAR TO ANY FOREIGN COUNTRY, WITH CERTAIN LIMITS SET BY SUBSECTIONS
(B)(1) AND (2).  THE PURPOSE OF THE PROVISION, LIKE THAT OF ITS
PREDECESSOR, SEC. 238 OF THE REVENUE ACT OF 1921,  FN2  IS TO OBVIATE
DOUBLE TAXATION.  FN3 

PROVIDES THAT, FOR THE PURPOSE OF THE SECTION, A DOMESTIC CORPORATION
RECEIVING DIVIDENDS FROM SUCH A SUBSIDIARY "IN ANY TAXABLE YEAR SHALL
BE DEEMED TO HAVE PAID THE SAME PROPORTION OF ANY INCOME, WAR-PROFITS,
OR EXCESSPROFITS TAXES PAID" BY THE SUBSIDIARY TO A FOREIGN COUNTRY,
"UPON OR WITH RESPECT TO THE ACCUMULATED PROFITS" OF THE SUBSIDIARY
"FROM WHICH SUCH DIVIDENDS WERE PAID, WHICH THE AMOUNT OF SUCH
DIVIDENDS BEARS TO THE AMOUNT OF SUCH ACCUMULATED PROFITS." 
"ACCUMULATED PROFITS" OF THE SUBSIDIARY ARE DEFINED AS "THE AMOUNT OF
ITS GAINS, PROFITS, OR INCOME IN EXCESS OF THE INCOME, WAR-PROFITS, AND
EXCESSPROFITS TAXES IMPOSED UPON OR WITH RESPECT TO SUCH PROFITS OR
INCOME." 

THE PARTIES ARE IN AGREEMENT AS TO THE FRACTION TO BE USED IN
CALCULATING THE PROPORTION.  THE NUMERATOR IS THE DIVIDENDS RECEIVED BY
THE PARENT.  THE DENOMINATOR IS THE "ACCUMULATED PROFITS" OF THE
SUBSIDIARY.  THE DISPUTE RELATES TO THE MULTIPLICAND TO WHICH THE
FRACTION IS TO BE APPLIED.  THE PETITIONER SAYS IT IS THE TOTAL FOREIGN
TAXES PAID BY THE SUBSIDIARY.  THE RESPONDENT SAYS IT IS THE TAXES PAID
UPON OR WITH RESPECT TO THE ACCUMULATED PROFITS OF THE SUBSIDIARY;
I.E., SO MUCH OF THE TAXES AS IS PROPERLY ATTRIBUTED TO THE ACCUMULATED
PROFITS, OR THE SAME PROPORTION OF THE TOTAL TAXES WHICH THE
ACCUMULATED PROFITS BEAR TO THE TOTAL PROFITS.  THE COURT OF CLAIMS SO
HELD.  FN5  SINCE SEVERAL DECISIONS HAVE GONE THE OTHER WAY,  FN6  WE
GRANTED CERTIORARI. 

IF THE LANGUAGE OF THE REVENUE ACT IS TO BE GIVEN EFFECT, THE
GOVERNMENT'S VIEW SEEMS CORRECT.  THE STATUTE DOES NOT PURPORT TO ALLOW
A CREDIT FOR A STATED PROPORTION OF THE TOTAL FOREIGN TAXES PAID OR THE
FOREIGN TAXES PAID "UPON OR WITH RESPECT TO" TOTAL FOREIGN PROFITS, BUT
FOR TAXES PAID "UPON OR WITH RESPECT TO" THE SUBSIDIARY'S "ACCUMULATED
PROFITS," WHICH, BY DEFINITION, ARE ITS TOTAL TAXABLE PROFITS LESS
TAXES PAID. 

IF, AS IS ADMITTED, THE PURPOSE IS TO AVOID DOUBLE TAXATION, THE
STATUTE, AS WRITTEN, ACCOMPLISHES THAT RESULT THE PARENT RECEIVES
DIVIDENDS.  SUCH DIVIDENDS, NOT ITS SUBSIDIARY'S PROFITS, CONSTITUTE
ITS INCOME TO BE RETURNED FOR TAXATION.  THE SUBSIDIARY PAYS TAX ON, OR
IN RESPECT OF, ITS ENTIRE PROFITS; BUT, SINCE THE PARENT RECEIVES
DISTRIBUTIONS OUT OF WHAT IS LEFT AFTER PAYMENT OF THE FOREIGN TAX,  -
THAT IS, OUT OF WHAT THE STATUTE CALLS "ACCUMULATED PROFITS," IT SHOULD
RECEIVE A CREDIT ONLY FOR SO MUCH OF THE FOREIGN TAX PAID AS RELATES TO
OR, AS THE ACT SAYS, IS PAID UPON, OR WITH RESPECT TO, THE ACCUMULATED
PROFITS. 

HENCE WE THINK THAT, UNDER THE PLAIN TERMS OF THE ACT, THE
COMMISSIONER AND THE COURT BELOW WERE RIGHT IN LIMITING THE CREDIT BY
THE USE AS MULTIPLICAND OF A PROPORTION OF THE TAX PAID ABROAD
APPROPRIATELY REFLECTING THE RELATION OF ACCUMULATED PROFITS TO TOTAL
PROFITS OF THE SUBSIDIARY.  BUT THE PETITIONER INSISTS THAT THE
LEGISLATIVE HISTORY AND A LONG INDULGED ADMINISTRATIVE CONSTRUCTION
REQUIRE US, IN EFFECT, TO ELIDE THE PHRASE "UPON OR WITH RESPECT TO THE
ACCUMULATED PROFITS" OF THE FOREIGN SUBSIDIARY. 

PARENT RECEIVING DIVIDENDS FROM A FOREIGN SUBSIDIARY A CREDIT FOR THE
SAME PROPORTION OF THE TAXES PAID BY THE FOREIGN CORPORATION DURING THE
TAXABLE YEAR TO ANY FOREIGN COUNTRY WHICH THE AMOUNT OF THE DIVIDENDS
RECEIVED BY THE PARENT DURING THE TAXABLE YEAR BORE TO THE TOTAL
TAXABLE INCOME OF THE SUBSIDIARY UPON OR WITH RESPECT TO WHICH SUCH
TAXES WERE PAID. 

THIS PROVISION HAD THE SAME OBJECT AS SEC. 131 OF THE REVENUE ACTS OF
1936 AND 1938; THAT IS, TO AVOID DOUBLE TAXATION.  THE DIFFICULTY WITH
IT WAS THAT IT DID NOT RELATE THE CREDIT TO THE ACCUMULATED PROFITS OR
SURPLUS OF THE SUBSIDIARY OUT OF WHICH THE DIVIDENDS WERE PAID.  THUS,
IF DIVIDENDS WERE PAID OUT OF SURPLUS EARNED IN PRIOR YEARS, AND IT
HAPPENED THAT THE SUBSIDIARY PAID NO TAX TO THE FOREIGN COUNTRY IN THE
TAXABLE YEAR IN QUESTION, THE PARENT COULD CLAIM NO CREDIT WHATEVER. 
THERE WERE OTHER ECCENTRIC RESULTS FLOWING FROM THE PROVISION OF THE
ACT OF 1918. 

IN THE REVENUE ACT OF 1921, SEC. 238(E)  FN8  WAS THE ANALOGOUS
IN CHARGE OF THE MEASURE:  "I REWROTE THE OLD PROVISION, SAFEGUARDING
IT FROM SOME ABUSES WHICH IT WAS OPEN TO AND CLOSING UP SOME OF THE
GAPS THAT WERE IN THE OLD PROVISION."  SECTION 238(E) IS SUBSTANTIALLY
THE SAME AS SEC. 131(F).  THE ALTERATIONS OF SEC. 240(C) OF THE ACT OF
1918 WERE MADE TO PERMIT IDENTIFICATION OF THE ACCUMULATED PROFITS OF
EACH TAXABLE YEAR OUT OF WHICH THE DIVIDENDS MIGHT HAVE BEEN PAID AND
TO GIVE CREDIT FOR A PROPORTION OF THE SUBSIDIARY'S TAXES ATTRIBUTABLE
TO SUCH ACCUMULATED PROFITS. 

THE CHAIRMAN OF THE SENATE FINANCE COMMITTEE INDICATED THAT THE
CALCULATION OF THE PROPORTION OF FOREIGN TAX PAID WOULD BE EXACTLY THE
SAME AS IT HAD BEEN UNDER THE 1918 ACT.  BUT THIS WOULD BE TRUE ONLY IF
THE DIVIDENDS WERE PAID IN A GIVEN YEAR OUT OF THE PRIOR YEAR'S
EARNINGS AND TAXES WERE PAID IN THE SAME YEAR IN RESPECT OF THE SAME
PRIOR YEAR'S EARNINGS.  THE PETITIONER SEEKS IN THIS CASE TO APPLY THE
PROPORTION PROVIDED BY THE 1918 ACT; BUT THIS IS TO IGNORE THE
ALTERATIONS MADE IN THAT ACT IN 1921 WHICH HAVE EVER SINCE BEEN
RETAINED.  IN COMMITTEE HEARINGS AND IN CONGRESSIONAL REPORTS WITH
RESPECT TO THE PURPOSE AND EFFECT OF THE CHANGES WROUGHT BY THE 1921
ACT, THERE WERE STATEMENTS INDICATING AN UNDERSTANDING THAT THE CREDIT
WAS TO BE PROPORTIONED TO THE DIVIDENDS MADE AVAILABLE TO THE PARENT IN
THIS COUNTRY. 

THE TREASURY MADE NO REGULATION APPLICABLE TO SEC. 238(E) OF THE
REVENUE ACT OF 1921.  IT PROVIDED A FORM FOR REPORTING THE TAX, WHICH
SANCTIONED THE PETITIONER'S METHOD OF COMPUTING THE CREDIT; AND, FROM
1921 TO 1930, THE COMMISSIONER CALCULATED CREDITS FOR FOREIGN
SUBSIDIARIES' TAXES BY THAT METHOD.  IN 1930, HOWEVER, THE TREASURY
PROMULGATED A NEW FORM WHICH REQUIRED THE CREDIT TO BE COMPUTED IN THE
WAY THE COMMISSIONER DID IN THE PRESENT CASE; AND PROMULGATED
REGULATIONS 77 UNDER THE REVENUE ACT OF 1932, WHICH, IN ARTICLE 698,
REQUIRED THE COMPUTATION OF THE CREDIT IN THE SAME MANNER.  THE
REGULATIONS HAVE SINCE REMAINED UNCHANGED:  SEE REGULATIONS 103 SECS.
19.131-3 AND 19.131-8.  ALTHOUGH THE REGULATIONS DEFINITELY GOVERN THIS
CASE, AND WERE MADE PRIOR TO THE YEARS IN CONTROVERSY, THE PETITIONER
INSISTS THAT THE ANTECEDENT ADMINISTRATIVE INTERPRETATION LONG IN FORCE
RENDERS IT IMPOSSIBLE FOR THE COMMISSIONER TO PROMULGATE A REGULATION
CHANGING FOR THE FUTURE THE EARLIER PRACTICE, EVEN THOUGH THE NEW
REGULATION COMPORTS WITH THE PLAIN MEANING OF THE STATUTE.  WE THINK
THE CONTENTION CANNOT BE SUSTAINED.  FN9 

THE JUDGMENT IS AFFIRMED. 

FN1  49 STAT. 1648, 1696; 52 STAT. 447, 506; 26 U.S.C. SEC. 131. 

FN2  42 STAT. 227, 258. 

FN3  BURNET V. CHICAGO PORTRAIT CO., 285 U.S. 1. 

FN4  A FOREIGN CORPORATION OF WHOSE VOTING STOCK THE TAXPAYER OWNS A
MAJORITY. 

FN5  94 CT. CLS. 699, 41 F.SUPP.  537. 

FN6  F.W. WOOLWORTH CO. V. UNITED STATES, 91 F.2D 973; INTERNATIONAL
MILLING CO. V. UNITED STATES, 89 CT. CLS. 128, 27 F.SUPP.  592;
ALUMINUM CO. OF AMERICA V. UNITED STATES, 123 F.2D 615. 

FN7  C. 18, 40 STAT. 1057, 1082. 

FN8  C. 136, 42 STAT. 227, 259. 

FN9  HELVERING V. WILSHIRE OIL CO., 308 U.S. 90; HELVERING V.
REYNOLDS, 313 U.S. 428; WHITE V. WINCHESTER COUNTRY CLUB, 315 U.S. 32. 

..END :













BETTS V. BRADY, 316 U.S. 455 


NO. 837.  ARGUED APRIL 13, 14, 1942.  - DECIDED JUNE 1, 1942.  -
AFFIRMED. 


1.  IN THE LIGHT OF THE APPLICABLE LAW OF MARYLAND, AN ORDER OF THE
CHIEF JUDGE OF THE COURT OF APPEALS, HE BEING ALSO THE JUDGE OF THAT
COURT FROM THE CITY OF BALTIMORE, DENYING PETITIONER'S RELEASE UPON A
WRIT OF HABEAS CORPUS, HELD REVIEWABLE HERE BY CERTIORARI UNDER JUD. 
CODE SEC. 237, AS A "FINAL JUDGMENT" OF THE "HIGHEST COURT" IN WHICH A
DECISION OF THE FEDERAL QUESTION INVOLVED COULD BE HAD.  P. 458. 

2.  A JUDGMENT OF A STATE TRIBUNAL DENYING RELEASE ON HABEAS CORPUS,
WHICH IS NOT REVIEWABLE IN ANY OTHER STATE COURT AND ENDS THE
PARTICULAR PROCEEDING, IS A FINAL JUDGMENT WITHIN THE MEANING OF JUD. 
CODE SEC. 237, NOTWITHSTANDING THAT UNDER THE STATE LAW THE PRISONER
RETAINS THE RIGHT TO SEEK DISCHARGE BY APPLICATIONS TO OTHER COURTS AND
JUDGES SUCCESSIVELY.  P. 460. 

3.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT
INCORPORATE, AS SUCH, THE SPECIFIC GUARANTEES FOUND IN THE SIXTH
AMENDMENT, ALTHOUGH A DENIAL BY A STATE OF RIGHTS OR PRIVILEGES
SPECIFICALLY EMBODIED IN THAT AND OTHERS OF THE FIRST EIGHT AMENDMENTS
MAY, IN CERTAIN CIRCUMSTANCES, OR IN CONNECTION WITH OTHER ELEMENTS,
OPERATE, IN A GIVEN CASE, TO DEPRIVE A LITIGANT OF DUE PROCESS OF LAW
IN VIOLATION OF THE FOURTEENTH.  P. 461. 

4.  THE APPLICATION OF THE DUE PROCESS CLAUSE TO STATE CRIMINAL
PROCEEDINGS IS NOT GOVERNED BY HARD AND FAST RULES.  ASSERTED DENIAL OF
DUE PROCESS IS TO BE TESTED BY APPRAISAL OF ALL FACTS IN THE CASE; AND
THAT WHICH, IN ONE SETTING, MAY CONSTITUTE A DENIAL OF DUE PROCESS,
BECAUSE IT IS A DENIAL OF FUNDAMENTAL FAIRNESS SHOCKING TO THE
UNIVERSAL SENSE OF JUSTICE, MAY, IN OTHER CIRCUMSTANCES, AND IN THE
LIGHT OF OTHER CONSIDERATIONS, FALL SHORT OF SUCH A DENIAL.  P. 462. 

5.  DECISIONS OF THIS COURT DO NOT LAY DOWN A RULE THAT IN EVERY
CASE, WHATEVER THE CIRCUMSTANCES, ONE CHARGED WITH CRIME, WHO IS UNABLE
TO OBTAIN COUNSEL, MUST BE FURNISHED COUNSEL BY THE STATE.  P. 462. 

6.  A REVIEW OF STATE CONSTITUTIONAL AND STATUTORY PROVISIONS ON THE
SUBJECT, IN CONNECTION WITH THE COMMON LAW, DEMONSTRATES THAT, IN THE
GREAT MAJORITY OF THE STATES, IT HAS BEEN THE CONSIDERED JUDGMENT OF
THE PEOPLE, THEIR REPRESENTATIVES AND THEIR COURTS THAT AN APPOINTMENT
OF COUNSEL FOR INDIGENT DEFENDANTS IN CRIMINAL CASES IS NOT A
FUNDAMENTAL RIGHT, ESSENTIAL TO A FAIR TRIAL, AND THAT THE MATTER HAS
GENERALLY BEEN DEEMED ONE OF LEGISLATIVE POLICY.  IN THE LIGHT OF THIS
EVIDENCE IT CAN NOT BE SAID THAT THE CONCEPT OF DUE PROCESS
INCORPORATED IN THE FOURTEENTH AMENDMENT OBLIGES THE STATES, WHATEVER
MAY BE THEIR OWN VIEWS, TO FURNISH COUNSEL IN EVERY SUCH CASE.  P.
471. 

7.  UPON THE FACTS OF THIS CASE, THE REFUSAL OF A STATE COURT TO
APPOINT COUNSEL TO REPRESENT AN INDIGENT DEFENDANT AT A TRIAL IN WHICH
HE WAS CONVICTED OF ROBBERY, DID NOT DENY HIM DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  P. 472. 

BETTS V. BRADY, WARDEN. 

CERTIORARI TO HON. CARROLL T. BOND, A JUDGE OF THE STATE OF MARYLAND,
BEING A JUDGE OF THE COURT OF APPEALS OF MARYLAND FROM THE CITY OF
BALTIMORE. 

CRETIONARI, 315 U.S. 791, TO REVIEW AN ORDER OF A JUDGE OF THE COURT
OF APPEALS OF MARYLAND FROM THE CITY OF BALTIMORE, DENYING PETITIONER'S
RELEASE UPON A WRIT OF HABEAS CORPUS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS INDICTED FOR ROBBERY IN THE CIRCUIT COURT OF
CARROLL COUNTY, MARYLAND.  DUE TO LACK OF FUNDS, HE WAS UNABLE TO
EMPLOY COUNSEL, AND SO INFORMED THE JUDGE AT HIS ARRAIGNMENT.  HE
REQUESTED THAT COUNSEL BE APPOINTED FOR HIM.  THE JUDGE ADVISED HIM
THAT THIS WOULD NOT BE DONE, AS IT WAS NOT THE PRACTICE IN CARROLL
COUNTY TO APPOINT COUNSEL FOR INDIGENT DEFENDANTS, SAVE IN PROSECUTIONS
FOR MURDER AND RAPE. 

WITHOUT WAIVING HIS ASSERTED RIGHT TO COUNSEL, THE PETITIONER PLEADED
NOT GUILTY AND ELECTED TO BE TRIED WITHOUT A JURY.  AT HIS REQUEST
WITNESSES WERE SUMMONED IN HIS BEHALF.  HE CROSS-EXAMINED THE STATE'S
WITNESSES AND EXAMINED HIS OWN.  THE LATTER GAVE TESTIMONY TENDING TO
ESTABLISH AN ALIBI.  ALTHOUGH AFFORDED THE OPPORTUNITY, HE DID NOT TAKE
THE WITNESS STAND.  THE JUDGE FOUND HIM GUILTY AND IMPOSED A SENTENCE
OF EIGHT YEARS. 

WHILE SERVING HIS SENTENCE, THE PETITIONER FILED WITH A JUDGE OF THE
CIRCUIT COURT FOR WASHINGTON COUNTY, MARYLAND, A PETITION FOR A WRIT OF
HABEAS CORPUS ALLEGING THAT HE HAD BEEN DEPRIVED OF THE RIGHT TO
ASSISTANCE OF COUNSEL GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE
FEDERAL CONSTITUTION.  THE WRIT ISSUED, THE CAUSE WAS HEARD, HIS
CONTENTION WAS REJECTED, AND HE WAS REMANDED TO THE CUSTODY OF THE
PRISON WARDEN. 

SOME MONTHS LATER, A PETITION FOR A WRIT OF HABEAS CORPUS WAS
PRESENTED TO HON. CARROLL T. BOND, CHIEF JUDGE OF THE COURT OF APPEALS
OF MARYLAND, SETTING UP THE SAME GROUNDS FOR THE PRISONER'S RELEASE AS
THE FORMER PETITION.  THE RESPONDENT ANSWERED, A HEARING WAS AFFORDED,
AT WHICH AN AGREED STATEMENT OF FACTS WAS OFFERED BY COUNSEL FOR THE
PARTIES, THE EVIDENCE TAKEN AT THE PETITIONER'S TRIAL WAS INCORPORATED
IN THE RECORD, AND THE CAUSE WAS ARGUED.  JUDGE BOND GRANTED THE WRIT
BUT, FOR REASONS SET FORTH IN AN OPINION, DENIED THE RELIEF PRAYED AND
REMANDED THE PETITIONER TO THE RESPONDENT'S CUSTODY. 

THE PETITIONER APPLIED TO THIS COURT FOR CERTIORARI DIRECTED TO JUDGE
BOND.  THE WRIT WAS ISSUED ON ACCOUNT OF THE IMPORTANCE OF THE
JURISDICTIONAL QUESTIONS INVOLVED AND CONFLICTING DECISIONS FN1  UPON
THE CONSTITUTIONAL QUESTION PRESENTED.  IN AWARDING THE WRIT, WE
REQUESTED COUNSEL TO DISCUSS THE JURISDICTION OF THIS COURT,
"PARTICULARLY (1) WHETHER THE DECISION BELOW IS THAT OF A COURT WITHIN
THE MEANING OF SEC. 237  FN2  OF THE JUDICIAL CODE, AND (2) WHETHER
STATE REMEDIES, EITHER BY APPEAL OR BY APPLICATION TO OTHER JUDGES OR
ANY OTHER STATE COURT, HAVE BEEN EXHAUSTED." 

1.  SEC. 237 OF THE JUDICIAL CODE DECLARES THIS COURT COMPETENT TO
REVIEW, UPON CERTIORARI, "ANY CAUSE WHEREIN A FINAL JUDGMENT  ...  HAS
BEEN RENDERED  ...  BY THE HIGHEST COURT" OF A STATE "IN WHICH A
DECISION COULD BE HAD" ON A FEDERAL QUESTION.  WAS JUDGE BOND'S
JUDGMENT THAT OF A COURT WITHIN THE MEANING OF THE STATUTE?  ANSWER
MUST BE MADE IN THE LIGHT OF THE APPLICABLE LAW OF MARYLAND. 

ART. 4, SEC. 6 OF THE STATE CONSTITUTION PROVIDES:  "ALL JUDGES SHALL
BY VIRTUE OF THEIR OFFICES BE CONSERVATORS OF THE PEACE THROUGHOUT THE
STATE; ...  "  SEC. 1 OF ART. 42 OF THE PUBLIC GENERAL LAWS OF MARYLAND
(FLACK'S 1939 EDITION) INVESTS THE COURT OF APPEALS AND THE CHIEF JUDGE
THEREOF, THE CIRCUIT COURTS FOR THE RESPECTIVE COUNTIES, AND THE
SEVERAL JUDGES THEREOF, THE SUPERIOR COURT OF BALTIMORE CITY, THE COURT
OF COMMON PLEAS OF THAT CITY, THE CIRCUIT COURT AND CIRCUIT COURT NO. 2
OF BALTIMORE CITY, THE BALTIMORE CITY COURT, AND THE JUDGES OF THE SAID
COURTS, OUT OF COURT, AND THE JUDGE OF THE COURT OF APPEALS FROM THE
CITY OF BALTIMORE, WITH POWER TO GRANT WRITS OF HABEAS CORPUS AND TO
EXERCISE JURISDICTION IN ALL MATTERS PERTAINING THERETO. 

ALTHOUGH IT IS SETTLED THAT THE GRANT TO THE COURT OF APPEALS OF THE
POWER TO ISSUE THE WRIT IS UNCONSTITUTIONAL AND VOID,  FN3  AND
ALTHOUGH THE STATUTE DOES NOT CONFER ON INDIVIDUAL JUDGES OF THE COURT
OF APPEALS THE POWER TO ISSUE A WRIT AND PROCEED THEREON, NEVERTHELESS,
THOSE JUDGES, AS CONSERVATORS OF THE PEACE, HAVE THE POWER UNDER THE
QUOTED SECTION OF THE CONSTITUTION.  FN4  IN ANY EVENT, JUDGE BOND IS
THE CHIEF JUDGE OF THE COURT OF APPEALS AND THE JUDGE OF THAT COURT
FROM THE CITY OF BALTIMORE AND, AS SUCH, IS EMPOWERED TO ACT. 

PRESCRIBE THE PROCEDURE GOVERNING THE ISSUE OF THE WRIT, ITS SERVICE,
THE RETURN, AND THE HEARING.  NO QUESTION IS MADE BUT THAT JUDGE BOND
COMPLIED WITH THESE PROVISIONS.  IT IS, THEREFORE, APPARENT THAT IN ALL
RESPECTS HE ACTED IN A JUDICIAL CAPACITY AND THAT, IN HIS PROPER
PERSON, HE WAS A JUDICIAL TRIBUNAL HAVING JURISDICTION, UPON PLEADINGS
AND PROOFS, TO HEAR AND TO ADJUDICATE THE ISSUE OF THE LEGALITY OF THE
PETITIONER'S DETENTION.  IF JUDGE BOND HAD BEEN SITTING IN TERM TIME AS
A MEMBER OF A COURT, CLOTHED WITH POWER TO ACT AS ONE OF THE MEMBERS OF
THAT COURT, HIS JUDGMENT WOULD BE THAT OF A COURT WITHIN THE SCOPE OF
SEC. 237.  DOUBT THAT HIS JUDGMENT IN THE PRESENT INSTANCE IS SUCH
ARISES OUT OF OUR DECISION IN MCKNIGHT V. JAMES, 155 U.S. 685, WHERE WE
REFUSED TO REVIEW THE DENIAL OF A DISCHARGE BY A JUDGE OF AN INFERIOR
COURT OF OHIO WHO ISSUED THE WRIT AND HEARD THE CASE AT CHAMBERS.  IT
APPEARED THAT THE PETITIONER HAD ADDRESSED HIS PETITION TO A JUDGE OF
THE CIRCUIT COURT INSTEAD OF THE COURT ITSELF; AND THAT, FOR THIS
REASON, THE ORDER OF THE JUDGE WAS NOT REVIEWABLE BY THE SUPREME COURT
OF OHIO AS IT WOULD HAVE BEEN HAD THE WRIT BEEN ADDRESSED TO THE
CIRCUIT COURT THOUGH HEARD BY A SINGLE JUDGE.  THE PETITIONER HAD NOT
EXHAUSTED HIS STATE REMEDY SINCE, THOUGH HE COULD HAVE OBTAINED A
DECISION BY THE HIGHEST COURT OF THE STATE, HE HAD AVOIDED DOING SO,
AND THEN SOUGHT TO COME TO THIS COURT DIRECTLY FROM THE ORDER OF THE
CIRCUIT JUDGE ON THE THEORY THAT THAT JUDGE'S ORDER WAS THE FINAL ORDER
OF THE HIGHEST COURT OF THE STATE WHICH COULD DECIDE HIS CASE.  IN A
LATER DECISION, WE REFERRED TO THIS AND OTHER COGNATE CASES AS DECIDING
THAT APPEALS DO NOT LIE TO THIS COURT FROM ORDERS BY JUDGES AT CHAMBERS
N5, BUT THE FUNDAMENTAL REASON FOR DENYING OUR JURISDICTION WAS THAT
THE APPELLANT HAD NOT EXHAUSTED STATE REMEDIES. 

SINCE JUDGE BOND'S ORDER WAS A FINAL DISPOSITION BY THE HIGHEST COURT
OF MARYLAND IN WHICH A JUDGMENT COULD BE HAD OF THE ISSUE JOINED ON THE
INSTANT PETITION WE HAVE JURISDICTION TO REVIEW IT. 

3.  WAS THE PETITIONER'S CONVICTION AND SENTENCE A DEPRIVATION OF HIS
LIBERTY WITHOUT DUE PROCESS OF LAW, IN VIOLATION OF THE FOURTEENTH
AMENDMENT, BECAUSE OF THE COURT'S REFUSAL TO APPOINT COUNSEL AT HIS
REQUEST? 

THE SIXTH AMENDMENT OF THE NATIONAL CONSTITUTION APPLIES ONLY TO
TRIALS IN FEDERAL COURTS.  FN9 THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT DOES NOT INCORPORATE, AS SUCH, THE SPECIFIC GUARANTEES FOUND
IN THE SIXTH AMENDMENT N10, ALTHOUGH A DENIAL BY A STATE OF RIGHTS OR
PRIVILEGES SPECIFICALLY EMBODIED IN THAT AND OTHERS OF THE FIRST EIGHT
AMENDMENTS MAY, IN CERTAIN CIRCUMSTANCES, OR IN CONNECTION WITH OTHER
ELEMENTS, OPERATE, IN A GIVEN CASE, TO DEPRIVE A LITIGANT OF DUE
PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH.  FN11  DUE PROCESS OF
LAW IS SECURED AGAINST INVASION BY THE FEDERAL GOVERNMENT BY THE FIFTH
AMENDMENT, AND IS SAFEGUARDED AGAINST STATE ACTION IN IDENTICAL WORDS
BY THE FOURTEENTH.  THE PHRASE FORMULATES A CONCEPT LESS RIGID AND MORE
FLUID THAN THOSE ENVISAGED IN OTHER SPECIFIC AND PARTICULAR PROVISIONS
OF THE BILL OF RIGHTS.  ITS APPLICATION IS LESS A MATTER OF RULE. 
ASSERTED DENIAL IS TO BE TESTED BY AN APPRAISAL OF THE TOTALITY OF
FACTS IN A GIVEN CASE.  THAT WHICH MAY, IN ONE SETTING, CONSTITUTE A
DENIAL OF FUNDAMENTAL FAIRNESS, SHOCKING TO THE UNIVERSAL SENSE OF
JUSTICE, MAY, IN OTHER CIRCUMSTANCES, AND IN THE LIGHT OF OTHER
CONSIDERATIONS, FALL SHORT OF SUCH DENIAL.  FN12  IN THE APPLICATION OF
SUCH A CONCEPT, THERE IS ALWAYS THE DANGER OF FALLING INTO THE HABIT OF
FORMULATING THE GUARANTEE INTO A SET OF HARD AND FAST RULES, THE
APPLICATION OF WHICH IN A GIVEN CASE MAY BE TO IGNORE THE QUALIFYING
FACTORS THEREIN DISCLOSED. 

THE PETITIONER, IN THIS INSTANCE, ASKS US, IN EFFECT, TO APPLY A RULE
IN THE ENFORCEMENT OF THE DUE PROCESS CLAUSE.  HE SAYS THE RULE TO BE
DEDUCED FROM OUR FORMER DECISIONS IS THAT, IN EVERY CASE, WHATEVER THE
CIRCUMSTANCES, ONE CHARGED WITH CRIME, WHO IS UNABLE TO OBTAIN COUNSEL,
MUST BE FURNISHED COUNSEL BY THE STATE.  EXPRESSIONS IN THE OPINIONS OF
THIS COURT LEND COLOR TO THE ARGUMENT,  FN13  BUT, AS THE PETITIONER
ADMITS, NONE OF OUR DECISIONS SQUARELY ADJUDICATES THE QUESTION NOW
PRESENTED. 

IN POWELL V. ALABAMA, 287 U.S. 45, IGNORANT AND FRIENDLESS NEGRO
YOUTHS, STRANGERS IN THE COMMUNITY, WITHOUT FRIENDS OR MEANS TO OBTAIN
COUNSEL, WERE HURRIED TO TRIAL FOR A CAPITAL OFFENSE WITHOUT EFFECTIVE
APPOINTMENT OF COUNSEL ON WHOM THE BURDEN OF PREPARATION AND TRIAL
WOULD REST, AND WITHOUT ADEQUATE OPPORTUNITY TO CONSULT EVEN THE
COUNSEL CASUALLY APPOINTED TO REPRESENT THEM.  THIS OCCURRED IN A STATE
WHOSE STATUTE LAW REQUIRED THE APPOINTMENT OF COUNSEL FOR INDIGENT
DEFENDANTS PROSECUTED FOR THE OFFENSE CHARGED.  THUS THE TRIAL WAS
CONDUCTED IN DISREGARD OF EVERY PRINCIPLE OF FAIRNESS AND IN DISREGARD
OF THAT WHICH WAS DECLARED BY THE LAW OF THE STATE A REQUISITE OF A
FAIR TRIAL.  THIS COURT HELD THE RESULTING CONVICTIONS WERE WITHOUT DUE
PROCESS OF LAW.  IT SAID THAT, IN THE LIGHT OF ALL THE FACTS, THE
FAILURE OF THE TRIAL COURT TO AFFORD THE DEFENDANTS REASONABLE TIME AND
OPPORTUNITY TO SECURE COUNSEL WAS A CLEAR DENIAL OF DUE PROCESS.  THE
COURT STATED FURTHER THAT "UNDER THE CIRCUMSTANCES  ...  THE NECESSITY
OF COUNSEL WAS SO VITAL AND IMPERATIVE THAT THE FAILURE OF THE TRIAL
COURT TO MAKE AN EFFECTIVE APPOINTMENT OF COUNSEL WAS LIKEWISE A DENIAL
OF DUE PROCESS," BUT ADDED:  "WHETHER THIS WOULD BE SO IN OTHER
CRIMINAL PROSECUTIONS, OR UNDER OTHER CIRCUMSTANCES, WE NEED NOT
DETERMINE.  ALL THAT IT IS NECESSARY NOW TO DECIDE, AS WE DO DECIDE, IS
THAT, IN A CAPITAL CASE, WHERE THE DEFENDANT IS UNABLE TO EMPLOY
COUNSEL, AND IS INCAPABLE ADEQUATELY OF MAKING HIS OWN DEFENSE BECAUSE
OF IGNORANCE, FEEBLE-MINDEDNESS, ILLITERACY, OR THE LIKE, IT IS THE
DUTY OF THE COURT, WHETHER REQUESTED OR NOT, TO ASSIGN COUNSEL FOR HIM
AS A NECESSARY REQUISITE OF DUE PROCESS OF LAW,  ...  " 

LIKEWISE, IN AVERY V. ALABAMA, 308 U.S. 444, THE STATE LAW REQUIRED
THE APPOINTMENT OF COUNSEL.  THE CLAIM WHICH WE FELT REQUIRED
EXAMINATION, AS IN THE POWELL CASE, WAS THAT THE PURPORTED COMPLIANCE
WITH THIS REQUIREMENT AMOUNTED TO MERE LIP SERVICE.  SCRUTINY OF THE
RECORD DISCLOSED THAT COUNSEL HAD BEEN APPOINTED AND THE DEFENDANT HAD
BEEN AFFORDED ADEQUATE OPPORTUNITY TO PREPARE HIS DEFENSE WITH THE AID
OF COUNSEL.  WE, THEREFORE, OVERRULED THE CONTENTION THAT DUE PROCESS
HAD BEEN DENIED. 

IN SMITH V. O'GRADY, 312 U.S. 329, THE PETITION FOR HABEAS CORPUS
ALLEGED A FAILURE TO APPOINT COUNSEL BUT AVERRED OTHER FACTS WHICH, IF
ESTABLISHED, WOULD PROVE THAT THE TRIAL WAS A MERE SHAM AND PRETENSE,
OFFENSIVE TO THE CONCEPT OF DUE PROCESS.  THERE ALSO, STATE LAW
REQUIRED THE APPOINTMENT OF COUNSEL FOR ONE ON TRIAL FOR THE OFFENSE
INVOLVED. 

THOSE CASES, WHICH ARE THE PETITIONER'S CHIEF RELIANCE, DO NOT RULE
THIS.  THE QUESTION WE ARE NOW TO DECIDE IS WHETHER DUE PROCESS OF LAW
DEMANDS THAT IN EVERY CRIMINAL CASE, WHATEVER THE CIRCUMSTANCES, A
STATE MUST FURNISH COUNSEL TO AN INDIGENT DEFENDANT.  IS THE FURNISHING
OF COUNSEL IN ALL CASES WHATEVER DICTATED BY NATURAL, INHERENT, AND
FUNDAMENTAL PRINCIPLES OF FAIRNESS?  THE ANSWER TO THE QUESTION MAY BE
FOUND IN THE COMMON UNDERSTANDING OF THOSE WHO HAVE LIVED UNDER THE
ANGLO-AMERICAN SYSTEM OF LAW.  BY THE SIXTH AMENDMENT THE PEOPLE
ORDAINED THAT, IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHOULD "ENJOY
THE RIGHT  ...  TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE."  WE
HAVE CONSTRUED THE PROVISION TO REQUIRE APPOINTMENT OF COUNSEL IN ALL
CASES WHERE A DEFENDANT IS UNABLE TO PROCURE THE SERVICES OF AN
ATTORNEY, AND WHERE THE RIGHT HAS NOT BEEN INTENTIONALLY AND
COMPETENTLY WAIVED.  FN14  THOUGH, AS WE HAVE NOTED, THE AMENDMENT LAYS
DOWN NO RULE FOR THE CONDUCT OF THE STATES, THE QUESTION RECURS WHETHER
THE CONSTRAINT LAID BY THE AMENDMENT UPON THE NATIONAL COURTS EXPRESSES
A RULE SO FUNDAMENTAL AND ESSENTIAL TO A FAIR TRIAL, AND SO, TO DUE
PROCESS OF LAW, THAT IT IS MADE OBLIGATORY UPON THE STATES BY THE
FOURTEENTH AMENDMENT.  RELEVANT DATA ON THE SUBJECT ARE AFFORDED BY
CONSTITUTIONAL AND STATUTORY PROVISIONS SUBSISTING IN THE COLONIES AND
THE STATES PRIOR TO THE INCLUSION OF THE BILL OF RIGHTS IN THE NATIONAL
CONSTITUTION, AND IN THE CONSTITUTIONAL, LEGISLATIVE, AND JUDICIAL
HISTORY OF THE STATES TO THE PRESENT DATE.  THESE CONSTITUTE THE MOST
AUTHORITATIVE SOURCES FOR ASCERTAINING THE CONSIDERED JUDGMENT OF THE
CITIZENS OF THE STATES UPON THE QUESTION.    THE CONSTITUTIONS OF THE
THIRTEEN ORIGINAL STATES, AS THEY WERE AT THE TIME OF FEDERAL UNION,
EXHIBIT GREAT DIVERSITY IN RESPECT OF THE RIGHT TO HAVE COUNSEL IN
CRIMINAL CASES.  RHODE ISLAND HAD NO CONSTITUTIONAL PROVISION ON THE
SUBJECT UNTIL 1843, NORTH CAROLINA AND SOUTH CAROLINA HAD NONE UNTIL
1868.  VIRGINIA HAS NEVER HAD ANY.  MARYLAND, IN 1776, AND NEW YORK, IN
1777, ADOPTED PROVISIONS TO THE EFFECT THAT A DEFENDANT ACCUSED OF
CRIME SHOULD BE "ALLOWED" COUNSEL.  A CONSTITUTIONAL MANDATE THAT THE
ACCUSED SHOULD HAVE A RIGHT TO BE HEARD BY HIMSELF AND BY HIS COUNSEL
WAS ADOPTED BY PENNSYLVANIA IN 1776, NEW HAMPSHIRE IN 1774, BY DELAWARE
IN 1782, AND BY CONNECTICUT IN 1818.  IN 1780 MASSACHUSETTS ORDAINED
THAT THE DEFENDANT SHOULD HAVE THE RIGHT TO BE HEARD BY HIMSELF OR HIS
COUNSEL AT HIS ELECTION.  IN 1798 GEORGIA PROVIDED THAT THE ACCUSED
MIGHT BE HEARD BY HIMSELF OR COUNSEL, OR BOTH.  IN 1776 NEW JERSEY
GUARANTEED THE ACCUSED THE SAME PRIVILEGES OF WITNESSES AND COUNSEL AS
THEIR PROSECUTORS "ARE OR SHALL BE ENTITLED TO." 

THE SUBSTANCE OF THESE PROVISIONS OF COLONIAL AND EARLY STATE
CONSTITUTIONS IS EXPLAINED BY THE CONTEMPORARY COMMON LAW.  ORIGINALLY,
IN ENGLAND, A PRISONER WAS NOT PERMITTED TO BE HEARD BY COUNSEL UPON
THE GENERAL ISSUE OF NOT GUILTY ON ANY INDICTMENT FOR TREASON OR
FELONY.  FN15  THE PRACTICE OF ENGLISH JUDGES, HOWEVER, WAS TO PERMIT
COUNSEL TO ADVISE WITH A DEFENDANT AS TO THE CONDUCT OF HIS CASE AND TO
REPRESENT HIM IN COLLATERAL MATTERS AND AS RESPECTS QUESTIONS OF LAW
ARISING UPON THE TRIAL.  FN16  IN 1695 THE RULE WAS RELAXED BY STATUTE
FN17  TO THE EXTENT OF PERMITTING ONE ACCUSED OF TREASON THE PRIVILEGE
OF BEING HEARD BY COUNSEL.  THE RULE FORBIDDING THE PARTICIPATION OF
COUNSEL STOOD, HOWEVER, AS TO INDICTMENTS FOR FELONY, UNTIL 1836, WHEN
A STATUTE ACCORDED THE RIGHT TO DEFEND BY COUNSEL AGAINST SUMMARY
CONVICTIONS AND CHARGES OF FELONY.  FN18  IN MISDEMEANOR CASES AND,
AFTER 1695, IN PROSECUTIONS FOR TREASON, THE RULE WAS THAT THE DEFENSE
MUST BE CONDUCTED EITHER BY THE DEFENDANT IN PERSON OR BY COUNSEL, BUT
THAT BOTH MIGHT NOT PARTICIPATE IN THE TRIAL.  FN19 

IN THE LIGHT OF THIS COMMON LAW PRACTICE, IT IS EVIDENT THAT THE
CONSTITUTIONAL PROVISIONS TO THE EFFECT THAT A DEFENDANT SHOULD BE
"ALLOWED" COUNSEL OR SHOULD HAVE A RIGHT "TO BE HEARD BY HIMSELF AND
HIS COUNSEL," OR THAT HE MIGHT BE HEARD BY "EITHER OR BOTH," AT HIS
ELECTION, WERE INTENDED TO DO AWAY WITH THE RULES WHICH DENIED
REPRESENTATION, IN WHOLE OR IN PART, BY COUNSEL IN CRIMINAL
PROSECUTIONS, BUT WERE NOT AIMED TO COMPEL THE STATE TO PROVIDE COUNSEL
FOR A DEFENDANT.  AT THE LEAST, SUCH A CONSTRUCTION BY STATE COURTS AND
LEGISLATORS CAN NOT BE SAID TO LACK REASONABLE BASIS. 

THE STATUTES IN FORCE IN THE THIRTEEN ORIGINAL STATES AT THE TIME OF
THE ADOPTION OF THE BILL OF RIGHTS ARE ALSO ILLUMINATING.  IT IS OF
INTEREST THAT THE MATTER OF APPOINTMENT OF COUNSEL FOR DEFENDANTS, IF
DEALT WITH AT ALL, WAS DEALT WITH BY STATUTE RATHER THAN BY
CONSTITUTIONAL PROVISION.  THE CONTEMPORARY LEGISLATION EXHIBITS GREAT
DIVERSITY OF POLICY.  FN20 

THE CONSTITUTIONS OF ALL THE STATES, PRESENTLY IN FORCE, SAVE THAT OF
VIRGINIA, CONTAIN PROVISIONS WITH RESPECT TO THE ASSISTANCE OF COUNSEL
IN CRIMINAL TRIALS.  THOSE OF NINE STATES FN21  MAY BE SAID TO EMBODY A
GUARANTEE TEXTUALLY THE SAME AS THAT OF THE SIXTH AMENDMENT, OR OF LIKE
IMPORT.  IN THE FUNDAMENTAL LAW OF MOST STATES, HOWEVER, THE LANGUAGE
USED INDICATES ONLY THAT A DEFENDANT IS NOT TO BE DENIED THE PRIVILEGE
OF REPRESENTATION BY COUNSEL OF HIS CHOICE.  FN22 

IN THREE STATES, THE GUARANTEE, WHETHER OR NOT IN THE EXACT
PHRASEOLOGY OF THE SIXTH AMENDMENT, HAS BEEN HELD TO REQUIRE
APPOINTMENT IN ALL CASES WHERE THE DEFENDANT IS UNABLE TO PROCURE
COUNSEL.  FN23  IN SIX, THE PROVISIONS (ONE OF WHICH IS LIKE THE SIXTH
AMENDMENT) HAVE BEEN HELD NOT TO REQUIRE THE APPOINTMENT OF COUNSEL FOR
INDIGENT DEFENDANTS N24.  IN EIGHT, PROVISIONS, ONE OF WHICH IS THE
SAME AS THAT OF THE SIXTH AMENDMENT, HAVE EVIDENTLY NOT BEEN VIEWED AS
REQUIRING SUCH APPOINTMENT, SINCE THE COURTS HAVE ENFORCED STATUTES
MAKING APPOINTMENT DISCRETIONARY, OR OBLIGATORY ONLY IN PROSECUTIONS
FOR CAPITAL OFFENSES OR FELONIES.  FN25 

IN TWELVE STATES, IT SEEMS TO BE UNDERSTOOD THAT THE CONSTITUTIONAL
PROVISION DOES NOT REQUIRE APPOINTMENT OF COUNSEL, SINCE STATUTES OF
GREATER OR LESS ANTIQUITY CALL FOR SUCH APPOINTMENT ONLY IN CAPITAL
CASES OR CASES OF FELONY OR OTHER GRAVE CRIME,  FN26  OR REFER THE
MATTER TO THE DISCRETION OF THE COURT.  FN27  IN EIGHTEEN STATES THE
STATUTES NOW REQUIRE THE COURT TO APPOINT IN ALL CASES WHERE DEFENDANTS
ARE UNABLE TO PROCURE COUNSEL.  FN28  BUT THIS HAS NOT ALWAYS BEEN THE
STATUTORY REQUIREMENT IN SOME OF THOSE STATES.  FN29  AND IT SEEMS TO
HAVE BEEN ASSUMED BY MANY LEGISLATURES THAT THE MATTER WAS ONE FOR
REGULATION FROM TIME TO TIME AS DEEMED NECESSARY, SINCE LAWS REQUIRING
APPOINTMENT IN ALL CASES HAVE BEEN MODIFIED TO REQUIRE IT ONLY IN THE
CASE OF CERTAIN OFFENSES.  FN30 

THIS MATERIAL DEMONSTRATES THAT, IN THE GREAT MAJORITY OF THE STATES,
IT HAS BEEN THE CONSIDERED JUDGMENT OF THE PEOPLE, THEIR
REPRESENTATIVES AND THEIR COURTS THAT APPOINTMENT OF COUNSEL IS NOT A
FUNDAMENTAL RIGHT, ESSENTIAL TO A FAIR TRIAL.  ON THE CONTRARY, THE
MATTER HAS GENERALLY BEEN DEEMED ONE OF LEGISLATIVE POLICY.  IN THE
LIGHT OF THIS EVIDENCE, WE ARE UNABLE TO SAY THAT THE CONCEPT OF DUE
PROCESS INCORPORATED IN THE FOURTEENTH AMENDMENT OBLIGATES THE STATES,
WHATEVER MAY BE THEIR OWN VIEWS, TO FURNISH COUNSEL IN EVERY SUCH
CASE.  EVERY COURT HAS POWER, IF IT DEEMS PROPER, TO APPOINT COUNSEL
WHERE THAT COURSE SEEMS TO BE REQUIRED IN THE INTEREST OF FAIRNESS. 

THE PRACTICE OF THE COURTS OF MARYLAND GIVES POINT TO THE PRINCIPLE
THAT THE STATES SHOULD NOT BE STRAIGHT-JACKETED IN THIS RESPECT, BY A
CONSTRUCTION OF THE FOURTEENTH AMENDMENT.  JUDGE BOND'S OPINION STATES,
AND COUNSEL AT THE BAR CONFIRMED THE FACT, THAT IN MARYLAND THE USUAL
PRACTICE IS FOR THE DEFENDANT TO WAIVE A TRIAL BY JURY.  THIS THE
PETITIONER DID IN THE PRESENT CASE.  SUCH TRIALS, AS JUDGE BOND
REMARKS, ARE MUCH MORE INFORMAL THAN JURY TRIALS AND IT IS OBVIOUS THAT
THE JUDGE CAN MUCH BETTER CONTROL THE COURSE OF THE TRIAL AND IS IN A
BETTER POSITION TO SEE IMPARTIAL JUSTICE DONE THAN WHEN THE FORMALITIES
OF A JURY TRIAL ARE INVOLVED.  FN31 

IN THIS CASE THERE WAS NO QUESTION OF THE COMMISSION OF A ROBBERY. 
THE STATE'S CASE CONSISTED OF EVIDENCE IDENTIFYING THE PETITIONER AS
THE PERPETRATOR.  THE DEFENSE WAS AN ALIBI.  PETITIONER CALLED AND
EXAMINED WITNESSES TO PROVE THAT HE WAS AT ANOTHER PLACE AT THE TIME OF
THE COMMISSION OF THE OFFENSE.  THE SIMPLE ISSUE WAS THE VERACITY OF
THE TESTIMONY FOR THE STATE AND THAT FOR THE DEFENDANT.  AS JUDGE BOND
SAYS, THE ACCUSED WAS NOT HELPLESS, BUT WAS A MAN FORTY-THREE YEARS
OLD, OF ORDINARY INTELLIGENCE, AND ABILITY TO TAKE CARE OF HIS OWN
INTERESTS ON THE TRIAL OF THAT NARROW ISSUE.  HE HAD ONCE BEFORE BEEN
IN A CRIMINAL COURT, PLEADED GUILTY TO LARCENY AND SERVED A SENTENCE
AND WAS NOT WHOLLY UNFAMILIAR WITH CRIMINAL PROCEDURE.  IT IS QUITE
CLEAR THAT IN MARYLAND, IF THE SITUATION HAD BEEN OTHERWISE AND IT HAD
APPEARED THAT THE PETITIONER WAS, FOR ANY REASON, AT A SERIOUS
DISADVANTAGE BY REASON OF THE LACK OF COUNSEL, A REFUSAL TO APPOINT
WOULD HAVE RESULTED IN THE REVERSAL OF A JUDGMENT OF CONVICTION.  ONLY
RECENTLY THE COURT OF APPEALS HAS REVERSED A CONVICTION BECAUSE IT WAS
CONVINCED ON THE WHOLE RECORD THAT AN ACCUSED, TRIED WITHOUT COUNSEL,
HAD BEEN HANDICAPPED BY THE LACK OF REPRESENTATION.  FN32 

TO DEDUCE FROM THE DUE PROCESS CLAUSE A RULE BINDING UPON THE STATES
IN THIS MATTER WOULD BE TO IMPOSE UPON THEM, AS JUDGE BOND POINTS OUT,
A REQUIREMENT WITHOUT DISTINCTION BETWEEN CRIMINAL CHARGES OF DIFFERENT
MAGNITUDE OR IN RESPECT OF COURTS OF VARYING JURISDICTION.  AS HE SAYS:
"CHARGES OF SMALL CRIMES TRIED BEFORE JUSTICES OF THE PEACE AND CAPITAL
CHARGES TRIED IN THE HIGHER COURTS WOULD EQUALLY REQUIRE THE
APPOINTMENT OF COUNSEL.  PRESUMABLY IT WOULD BE ARGUED THAT TRIALS IN
THE TRAFFIC COURT WOULD REQUIRE IT."  AND, INDEED, IT WAS SAID BY
PETITIONER'S COUNSEL BOTH BELOW AND IN THIS COURT, THAT AS THE
FOURTEENTH AMENDMENT EXTENDS THE PROTECTION OF DUE PROCESS TO PROPERTY
AS WELL AS TO LIFE AND LIBERTY, IF WE HOLD WITH THE PETITIONER, LOGIC
WOULD REQUIRE THE FURNISHING OF COUNSEL IN CIVIL CASES INVOLVING
PROPERTY. 

AS WE HAVE SAID, THE FOURTEENTH AMENDMENT PROHIBITS THE CONVICTION
AND INCARCERATION OF ONE WHOSE TRIAL IS OFFENSIVE TO THE COMMON AND
FUNDAMENTAL IDEAS OF FAIRNESS AND RIGHT, AND WHILE WANT OF COUNSEL IN A
PARTICULAR CASE MAY RESULT IN A CONVICTION LACKING IN SUCH FUNDAMENTAL
FAIRNESS, WE CANNOT SAY THAT THE AMENDMENT EMBODIES AN INEXORABLE
COMMAND THAT NO TRIAL FOR ANY OFFENSE, OR IN ANY COURT, CAN BE FAIRLY
CONDUCTED AND JUSTICE ACCORDED A DEFENDANT WHO IS NOT REPRESENTED BY
COUNSEL. 

THE JUDGMENT IS AFFIRMED. 

FN1  IN RE MCKNIGHT, 52 F. 799; WILSON V. LANAGAN, 99 F.2D 544; BOYD
V. O'GRADY, 121 F.2D 146; CAREY V. BRADY, 125 F.2D 253; COMMONWEALTH EX
REL. SCHULTZ V. SMITH, 139 PA. SUPER.  CT. 357, 11 A.2D 656;
COMMONWEALTH EX REL. MCGLINN V. SMITH, 344 PA. 41, 24 A.2D 1. 

FN2  28 U.S.C. SEC. 344(B). 

FN3  STATE V. GLENN, 54 MD. 572, 596; SEVINSKEY V. WAGUS, 76 MD. 335,
25 A. 468. 

FN4  EX PARTE O'NEILL, 8 MD. 227; EX PARTE MAULSBY, 13 MD. 625. 

FN5  CRAIG V. HECHT, 263 U.S. 255, 276. 

IN VIEW OF WHAT HAS BEEN SAID OF THE POWER OF JUDGE BOND AS A
JUDICIAL TRIBUNAL TO HEAR AND FINALLY DECIDE THE CAUSE, AND OF THE
JUDICIAL QUALITY OF HIS ACTION WE ARE OF OPINION THAT HIS JUDGMENT WAS
THAT OF A COURT WITHIN THE INTENDMENT OF SEC. 237. 

2.  DID THE JUDGMENT ENTERED COMPLY WITH THE REQUIREMENT OF SEC. 237
THAT IT MUST BE A FINAL JUDGMENT RENDERED BY THE HIGHEST COURT IN WHICH
A DECISION COULD BE HAD?  AGAIN ANSWER MUST BE MADE IN THE LIGHT OF THE
APPLICABLE LAW OF MARYLAND.  THE JUDGMENT WAS FINAL IN THE SENSE THAT
AN ORDER OF A MARYLAND JUDGE IN A HABEAS CORPUS CASE, WHATEVER THE
COURT TO WHICH HE BELONGS, IS NOT REVIEWABLE BY ANY OTHER COURT OF
MARYLAND EXCEPT IN SPECIFIC INSTANCES NAMED IN STATUTES WHICH ARE HERE
INAPPLICABLE N6.  IT IS TRUE THAT THE ORDER WAS NOT FINAL, AND THE
PETITIONER HAS NOT EXHAUSTED STATE REMEDIES IN THE SENSE THAT IN
MARYLAND, AS IN ENGLAND, IN MANY OF THE STATES, AND IN THE FEDERAL
COURTS, A PRISONER MAY APPLY SUCCESSIVELY TO ONE JUDGE AFTER ANOTHER
AND TO ONE COURT AFTER ANOTHER WITHOUT EXHAUSTING HIS RIGHT.  FN7  WE
THINK THIS CIRCUMSTANCE DOES NOT DENY TO THE JUDGMENT IN A GIVEN CASE
THE QUALITY OF FINALITY REQUISITE TO THIS COURT'S JURISDICTION. 
ALTHOUGH THE JUDGMENT IS FINAL IN THE SENSE THAT IT IS NOT SUBJECT TO
REVIEW BY ANY OTHER COURT OF THE STATE, WE MAY, IN OUR DISCRETION,
REFUSE THE WRIT WHEN THERE IS A HIGHER COURT OF THE STATE TO WHICH
ANOTHER PETITION FOR THE RELIEF SOUGHT COULD BE ADDRESSED,  FN8  BUT
THIS IS NOT SUCH A CASE.  TO HOLD THAT, SINCE SUCCESSIVE APPLICATIONS
TO COURTS AND JUDGES OF MARYLAND MAY BE MADE AS OF RIGHT, THE JUDGMENT
IN ANY CASE IS NOT FINAL, WOULD BE TO DENY ALL RECOURSE TO THIS COURT
IN SUCH CASES. 

FN6  BELL V. STATE, 4 GILL.  301; EX PARTE O'NEILL, 8 MD. 227; IN RE
COSTON, 23 MD. 271; COSTON V. COSTON, 25 MD. 500; STATE V. GLENN, 54
MD. 572; ANNAPOLIS V. HOWARD, 80 MD. 244, 30 A. 910; PETITION OF OTHO
JONES, 179 MD. 240, 16 A.2D 901. 

FN7  JUDGE BOND INTIMATES THAT SEC. 3 OF ART. 42, AS AMENDED BY LAWS
1941, C. 484 PERMITS THE USE OF A RULE TO SHOW CAUSE (CF. HOLIDAY V.
JOHNSTON, 313 U.S. 342) OR OTHER FORM OF PRELIMINARY INQUIRY TO AVOID
THE NECESSITY OF THE ISSUE OF A WRIT AND A HEARING WHERE A REDUNDANT
PETITION IS FILED DISCLOSING NO NEW MATTER.  SEE, SALINGER V. LOISEL,
265 U.S. 224, 231-232.  HE DETERMINED, HOWEVER, IN THIS CASE TO ISSUE
THE WRIT AND AFFORD A HEARING. 

FN8  TENNER V. DULLEA, 314 U.S. 692. 

FN9  UNITED STATES V. DAWSON, 15 HOW.  467, 487; TWITCHELL V.
PENNSYLVANIA, 7 WALL.  321, 325; SPIES V. ILLINOIS, 123 U.S. 131, 166;
IN RE SAWYER, 124 U.S. 200, 219; BROOKS V. MISSOURI, 124 U.S. 394, 397;
EILENBECKER V. DISTRICT COURT, 134 U.S. 31, 34, 35; WEST V. LOUISIANA,
194 U.S. 258, 263; HOWARD V. KENTUCKY, 200 U.S. 164, 172. 

FN10  HURTADO V. CALIFORNIA, 110 U.S. 516; MAXWELL V. DOW, 176 U.S.
581; WEST V. LOUISIANA, 194 U.S. 258; TWINING V. NEW JERSEY, 211 U.S.
78; FRANK V. MANGUM, 237 U.S. 309; SNYDER V. MASSACHUSETTS, 291 U.S.
97; PALKO V. CONNECTICUT, 302 U.S. 319. 

FN11  COMPARE TWINING V. NEW JERSEY, 211 U.S. 78, 98; POWELL V.
ALABAMA, 287 U.S. 45; PALKO V. CONNECTICUT, 302 U.S. 319, 323 FF. 

FN12  COMPARE LISENBA V. CALIFORNIA, 314 U.S. 219, 236-237. 

FN13  POWELL V. ALABAMA, 287 U.S. 45, 73; GROSJEAN V. AMERICAN PRESS
CO., 297 U.S. 233, 243, 244; JOHNSON V. ZERBST, 304 U.S. 458, 462;
AVERY V. ALABAMA, 308 U.S. 444, 447. 

FN14  JOHNSON V. ZERBST, 304 U.S. 458. 

FN15  CHITTY CRIMINAL LAW (5TH AM. ED.)  VOL.  1, P. 406. 

FN16  CHITTY, SUPRA, VOL. I, P. 407; REX V. PARKINS, 1 C. & P. 314. 

FN17  7 WILL.  3, C. 3, SEC. 1. 

FN18  6 & 7 WILL.  4, C. 114, SECS. I AND II. 

FN19  REX V. WHITE, 3 CAMP.  N.P. 97; REGINA V. BOUCHER, 8 C. & P.
655. 

FN20  CONNECTICUT HAD NO STATUTE, ALTHOUGH IT WAS THE CUSTOM OF THE
COURTS TO ASSIGN COUNSEL IN ALL CRIMINAL CASES.  SWIFT, "SYSTEM OF
LAWS, CONNECTICUT," 1796, VOL. II, P. 392.  IN DELAWARE PENN'S LAWS OF
1719, C. XXII, AND IN PENNSYLVANIA THE ACT OF MAY 31, 1718, SEC. III
(MITCHELL AND FLANDERS' STATUTES AT LARGE OF PENNA., 1682-1801, VOL.
III, P. 201) PROVIDED FOR APPOINTMENT ONLY IN CASE OF "FELONIES OF
DEATH."  GEORGIA HAS NEVER HAD ANY LAW ON THE SUBJECT.  MARYLAND HAD NO
SUCH LAW AT THE TIME OF THE ADOPTION OF THE BILL OF RIGHTS.  AN ACT OF
1777 IN MASSACHUSETTS GAVE THE RIGHT TO HAVE COUNSEL APPOINTED IN CASES
OF TREASON OR MISPRISION OF TREASON.  LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS FROM NOV. 28, 1780 TO FEB. 28, 1807, C. LXXI, VOL. II,
APPENDIX, P. 1049.  BY AN ACT OF FEB. 8, 1791, NEW HAMPSHIRE REQUIRED
APPOINTMENT IN ALL CASES WHERE THE PUNISHMENT WAS DEATH.  METCALF'S
LAWS OF NEW HAMPSHIRE, 1916, VOL. 5, PP. 596, 599.  AN ACT OF NEW
JERSEY OF MARCH 6, 1795, SEC. 2, REQUIRED APPOINTMENT IN THE CASE OF
ANY PERSON TRIED UPON AN INDICTMENT.  ACTS OF THE GENERAL ASSEMBLY OF
THE SESSION OF 1794, C. DXXXII, P. 1012.  NEW YORK APPARENTLY HAD NO
STATUTE ON THE SUBJECT.  SEE ACT.  FEB.  20, 1787, LAWS OF NEW YORK,
SESSIONS 1ST TO 20TH (1798), VOL. I, PP. 356-7.  AN ACT OF 1777 OF
NORTH CAROLINA MADE NO PROVISION FOR APPOINTMENT, BUT ACCORDED
DEFENDANTS THE RIGHT TO HAVE COUNSEL.  LAWS OF NORTH CAROLINA, 1789,
PP. 40, 56.  RHODE ISLAND HAD NO STATUTE UNTIL 1798, WHEN ONE WAS
PASSED IN THE WORDS OF THE SIXTH AMENDMENT.  LAWS 1798, P. 80.  SOUTH
CAROLINA, BY ACT OF AUGUST 20, 1731, LIMITED APPOINTMENT TO CAPITAL
CASES.  GRIMKE'S SO. CAR.  PUB.  LAWS, 1682-1790, P. 130.  VIRGINIA, BY
ACT OF OCT. 1786, ENACTED WITH RESPECT TO ONE CHARGED WITH TREASON OR
FELONY THAT "THE COURT SHALL ALLOW HIM COUNSEL ...  IF HE DESIRE IT." 
HENING'S STATUTES OF VIRGINIA, 1785-1788, VOL. 12, P. 343. 

FN21  GEORGIA (ART. I, PAR. V); IOWA (ART. I, SEC. 10); LOUISIANA
(ART. I, SEC. 9); MICHIGAN (DEC. OF RIGHTS, ART. II, SEC. 19);
MINNESOTA (ART. I, SEC. 6); NEW JERSEY (ART. I, SEC. 8); NORTH CAROLINA
(ART. I, SEC. 11); RHODE ISLAND (ART. I, SEC. 10); WEST VIRGINIA (ART.
III, SEC. 14). 

FN22  SOME ASSERT THE RIGHT OF A DEFENDANT "TO APPEAR AND DEFEND IN
PERSON AND BY COUNSEL."  ARIZONA (ART. II, SEC. 24); COLORADO (ART. II,
SEC. 16); ILLINOIS (ART. II, SEC. 9); MISSOURI (ART. II, SEC. 22);
MONTANA (ART. III, SEC. 16); NEW MEXICO (ART. II, SEC. 14); SOUTH
DAKOTA (ART. VI, SEC. 7); UTAH (ART. I, SEC. 12); WYOMING (ART. I, SEC.
10).  OTHERS PHRASE THE RIGHT AS THAT "TO BE HEARD BY HIMSELF AND (HIS)
COUNSEL":  ARKANSAS (ART. II, SEC. 10); DELAWARE (ART. I, SEC. 7);
INDIANA (ART. I, SEC. 13); KENTUCKY (BILL OF RIGHTS, SEC. 11);
PENNSYLVANIA (ART. I, SEC. 9); TENNESSEE (ART. I, SEC. 9); VERMONT (CH.
I, ART. 10TH); OR "BY HIMSELF AND BY COUNSEL": CONNECTICUT (ART. I,
SEC. 9); OR "BY HIMSELF AND COUNSEL": NEW HAMPSHIRE (BILL OF RIGHTS,
15TH); OKLAHOMA (ART. II, SEC. 20); OREGON (ART. I, SEC. 11); WISCONSIN
(ART. I, SEC. 7); OR "BY HIMSELF AND COUNSEL OR EITHER":  ALABAMA (ART.
I, SEC. 6); "BY HIMSELF OR COUNSEL OR (BY) BOTH":  FLORIDA (DEC. OF
RIGHTS, SEC. 11); MISSISSIPPI (ART. III, SEC. 26); SOUTH CAROLINA (ART.
I, SEC. 18); TEXAS (ART. I, SEC. 10).  THE VERBIAGE SOMETIMES EMPLOYED
IS:  "TO APPEAR AND DEFEND IN PERSON AND WITH COUNSEL":  CALIFORNIA
(ART. I, SEC. 13), IDAHO, (ART. I, SEC. 13); NORTH DAKOTA (ART. I, SEC.
13); OHIO (ART. I, SEC. 10); OR "IN PERSON OR BY COUNSEL"; KANSAS (BILL
OF RIGHTS, SEC. 10); NEBRASKA (ART. I, SEC. 11); WASHINGTON (ART. I,
SEC. 22).  NEVADA (ART. I, SEC. 8) AND NEW YORK (ART. I, SEC. 6) ADD:
"AS IN CIVIL ACTIONS."  SOME CONSTITUTIONS FORMULATE THE RIGHT AS ONE
"TO BE HEARD BY HIMSELF AND HIS COUNSEL AT HIS ELECTION" OR "HIMSELF
AND HIS COUNSEL OR EITHER AT HIS ELECTION":  MASSACHUSETTS (PART I,
SEC. 12), MAINE (ART. I, SEC. 6).  MARYLAND (DEC. OF RIGHTS, ART. 21)
STATES THE RIGHT AS THAT "TO BE ALLOWED COUNSEL." 

FN23  ELAM V. JOHNSON, 48 GA. 348; DELK V. STATE, 99 GA. 667, 26 S.E.
752; FUGATE V. COMMONWEALTH, 254 KY. 663, 72 S.W.2D 47; CARPENTER V.
DANE COUNTY, 9 WIS. 274. 

FN24  CUTTS V. STATE, 54 FLA. 21, 45 SO. 491; MCDONALD V.
COMMONWEALTH, 173 MASS. 322, 53 N.E. 874; PEOPLE V. DUDLEY, 173 MICH.
389, 138 N. W. 1044; PEOPLE V. WILLIAMS, 225 MICH. 133, 195 N.W. 818;
PEOPLE V. HARRIS, 266 MICH. 317, 253 N.W. 312; PEOPLE V. CRANDELL, 270
MICH. 124, 258 N.W. 224; COMMONWEALTH V. SMITH, 344 PA. 41, 24 A.2D 1;
STATE V. SWEENEY, 48 S.D. 248, 203 N.W. 460; STATE V. YOES, 67 W. VA.
546, 68 S.E. 181; CF. PARDEE V. SALT LAKE COUNTY, 39 UTAH 482, 118 P.
122. 

FN25  ALABAMA:  CODE (1940) TIT. 15, SEC. 318; CAMPBELL V. STATE, 182
ALA. 18, 62 SO. 57; GILCHRIST V. STATE, 234 ALA. 73, 173 SO. 651; CLARK
V. STATE, 239 ALA. 380, 195 SO. 260.  LOUISIANA:  CODE CRIM. PROC.
(DART, 1932) TIT. XIII, ART. 143; STATE V. DAVIS, 171 LA. 449, 131 SO.
295.  MARYLAND:  ANNOTATED CODE (FLACK, 1939), ART. 26, PAR. 7, P.
1060; CF. THE DECISION BELOW AND COATES V. MARYLAND, 180 MD. 502, 25
A.2D 676.  MISSISSIPPI:  ANNOTATED CODE (1930) CRIM. PROC., C. 21, SEC.
1262; LAWS 1934, C. 303; REED V. STATE, 143 MISS.  686, 109 SO. 715;
ROBINSON V. STATE, 178 MISS.  568, 173 SO. 451.  RHODE ISLAND:  GENERAL
LAWS 1938, C. 625, SEC. 62; ACTS & RESOLVES, 1891, C. 921, P. 165;
STATE V. HUDSON, 55 R.I. 141, 179 A. 130.  SOUTH CAROLINA: CODE 1932,
VOL. 1, SEC. 979; STATE V. JONES, 172 S.C. 129, 173 S.E. 77.  TEXAS:
LOPEZ V. STATE, 46 TEX. CR. 473, 80 S.W. 1016; FAGGETT V. STATE, 122
TEX. CR. 399, 55 S.W.2D 842; THOMAS V. STATE, 132 TEX. CR. 549, 106
S.W.2D 289; AUSTIN V. STATE, 51 S.W. 249.  VERMONT:  PUBLIC LAWS (1933)
C. 57, SEC. 1424; C. 101, SEC. 2327; C. 102, SEC. 2370; STATE V. GOMEZ,
89 VT. 490, 96 A. 190. 

FN26  ARKANSAS:  STEEL & MCCAMPBELL'S COMPILED LAWS OF ARKANSAS
TERRITORY, 1835, "CRIMES AND MISDEMEANORS," SEC. 37, P. 194; GANTT'S
DIGEST OF ARK. STATS. 1874, CRIM. PROC. C. 43, ART. XII, SEC. 1824, P.
410; POPE'S DIGEST (1937), VOL. 1, C. 43, SEC. 3877, P. 1180. 
DELAWARE:  PENN'S LAWS, C. XXII (1719); REV. CODE (1935) C. 114, 4305
6.  KANSAS:  GEN. STATS. 1868, C. 82, SEC. 160, P. 845; GEN. STATS.
1935, C. 62, SEC. 1304, P. 1449.  MAINE:  ACT OF MARCH 8, 1826, SEC. 6,
P. 146; R.S. APR. 17, 1857, C. 134, SEC. 12, P. 713; R.S. 1930, C. 146,
SEC. 14, P. 1655.  MINNESOTA:  ACT OF MARCH 5, 1869, G.L. 1869, C.
LXXII, SEC. 1; MASON'S MINN. STATS. (1927) VOL. 2, C. 94, SEC. 9957. 
MISSOURI:  CASSELBERRY'S REV. STATS. 1845, PP. 434, 443-4, 458; REV.
STATS. (1939) CRIM. PROC. SEC. 4003.  NEBRASKA:  GEN. STATS. 1873, C.
58, SEC. 437, P. 821; COMP. STAT. (1929) CRIM. PROC. ART. 18, SEC. 29
1803.  NEW HAMPSHIRE:  R.S. 1843, TIT. XXVII, C. 225, P. 457; PUB. LAWS
(1926), C. 368, LAWS 1937, C. 22.  WASHINGTON:  TERRITORIAL STATS.
1881, C. LXXXV, SEC. 1063; REM.  REV.  STATS. VOL. 4, C. 2, SEC. 2305. 

FN27  ARIZONA:  CODE (1939) ART. 9, SECS. 44-904, 44-905.  COLORADO:
COLO. STATS. ANNOTATED (1935), VOL. 2, C. 48, SEC. 502, P. 1148. 
MARYLAND:  LAWS 1886, C. 46, P. 66; ANNO.  CODE (FLACK, 1939), ART. 26,
PAR. 7. 

FN28  CALIFORNIA, PENAL CODE, DEERING (1937), PT. 2, TIT. 6, C. 1,
SEC. 987; IDAHO, CODE ANNO.  (1932) SEC. 19-1412; ILLINOIS, R.S. 1935,
C. 38, $* 754; IOWA, CODE 1939, C. 640, SEC. 13773; KANSAS, LAWS 1941,
C. 291; MICHIGAN, STATUTES ANN. SEC. 28.1253; MONTANA, REV. CODES ANN.
(1935) C. 73, SEC. 11886; NEVADA, COMP. LAWS (1929) CR. L. & PROC. SEC.
10883; NEW JERSEY, N.J. STAT. ANN. SEC. 2:  190-3; NEW YORK, THOMPSON'S
LAWS (1939) PT. II, CODE OF CRIM. PROC. SEC. 308; NORTH DAKOTA, COMP.
LAWS (1913) VOL. II, SEC. 8965; OHIO, THROCKMORTON'S CODE ANN. (1940)
SEC. 13439-2; OKLAHOMA, STATS. ANN. TIT. 22, SEC. 1271; OREGON, COMP.
LAWS ANN. VOL. 3, SEC. 26-804; SOUTH DAKOTA, CODE (1939) SEC. 34.1901;
TENNESSEE, MICHIE'S CODE (1938) SEC. 11734; UTAH, R.S. (1938) CODE CR.
PROC. SEC. 105-22-12; WYOMING, R.S. (1931) SEC. 33-501.  CONNECTICUT
PROVIDES OFFICIAL PUBLIC DEFENDERS AVAILABLE TO ALL PERSONS UNABLE TO
RETAIN COUNSEL.  G.S. (REVISION OF 1930), C. 335, SEC. 6476. 

AT LEAST AS EARLY AS 1903(3 EDW.  7, C. 38) ENGLAND ADOPTED A POOR
PRISONERS' DEFENCE ACT, UNDER WHICH A RULE WAS ADOPTED WHEREBY AN
ACCUSED MIGHT DEFEND BY COUNSEL ASSIGNED BY THE COURT.  BOWEN-ROWLANDS,
CRIMINAL PROCEEDINGS, LONDON (1904) PP. 46-47.  THE EXISTING STATUTE IS
THE POOR PRISONERS' DEFENCE ACT (1930) 20 & 21 GEO. 5, C. 32.  SEE
ARCHBOLD'S CRIMINAL PLEADING, EVIDENCE AND PRACTICE, 30TH ED. (1938) P.
167.  UNDER THIS ACT A POOR DEFENDANT IS ENTITLED AS OF RIGHT TO
COUNSEL ON A CHARGE OF MURDER, BUT ASSIGNMENT OF COUNSEL IS
DISCRETIONARY IN OTHER CASES. 

FN29  SEE E.G. EARLIER AND MORE RESTRICTED STATUTES:  IDAHO, TERR. 
LAWS, 2D SESS., 1864, C. II, P. 246; IOWA, ACT OF JANUARY 4, 1839, SEC.
64; KORF V. JASPER COUNTY, 132 IA. 682, 108 N.W. 1031; MICHIGAN, LAWS
1857, ACT NO. 109, P. 239; MONTANA, ACT JANUARY 12, 1872, C. IX, SEC.
196; NEVADA, COMP. L. 1861-73, C. LIII.  CHANGES IN THE STATUTES OF
OTHER STATES MIGHT BE CITED.  COMPARE NOTES 20 AND 28. 

FN30  LOUISIANA.  COMPARE LAWS, 1855, ACT NO. 121; STATE V. FERRIS,
16 LA. ANN. 424; STATE V. BRIDGES, 109 LA. 530, 33 SO. 589, WITH LA.
CODE CRIM. PROC. (DART) 1932, TIT. XIII, ART. 143.  NEBRASKA.  COMPARE
LAWS OF 1869, P. 163, WITH COMP. STATS. (1929) SEC. 29-1803. 
WASHINGTON.  COMPARE CODE OF WASHINGTON TERR.  (1881) C. LXXXV, SEC.
1063 WITH REM.  REV.  STATS. VOL. 4, C. 2, SEC. 2305.  AND COMPARE
TEXAS CODE CRIM. PROC. (1856), PT. III, ARTS. 466-7 WITH VERNON'S
STATS. (1936), ART. 1917, AND LOPEZ V. STATE, 46 TEX. CR. 473, 80 S.W.
1016, AND THOMAS V. STATE, 132 TEX. CR. 549, 106 S.W.2D 289. 

FN31  JUDGE BOND ADDS:  "CERTAINLY MY OWN EXPERIENCE IN CRIMINAL
TRIALS OVER WHICH I HAVE PRESIDED (OVER 2000, AS I ESTIMATE IT), HAS
DEMONSTRATED TO ME THAT THERE ARE FAIR TRIALS WITHOUT COUNSEL EMPLOYED
FOR THE PRISONERS." 

FN32  COATES V. STATE, 180 MD. 502, 25 A.2D 676. 

MR. JUSTICE BLACK, DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE MURPHY CONCUR. 

TO HOLD THAT THE PETITIONER HAD A CONSTITUTIONAL RIGHT TO COUNSEL IN
THIS CASE DOES NOT REQUIRE US TO SAY THAT "NO TRIAL FOR ANY OFFENSE, OR
IN ANY COURT, CAN BE FAIRLY CONDUCTED AND JUSTICE ACCORDED A DEFENDANT
WHO IS NOT REPRESENTED BY COUNSEL."  THIS CASE CAN BE DETERMINED BY A
RESOLUTION OF A NARROWER QUESTION:  WHETHER IN VIEW OF THE NATURE OF
THE OFFENSE AND THE CIRCUMSTANCES OF HIS TRIAL AND CONVICTION, THIS
PETITIONER WAS DENIED THE PROCEDURAL PROTECTION WHICH IS HIS RIGHT
UNDER THE FEDERAL CONSTITUTION.  I THINK HE WAS. 

THE PETITIONER, A FARM HAND, OUT OF A JOB AND ON RELIEF, WAS INDICTED
IN A MARYLAND STATE COURT ON A CHARGE OF ROBBERY.  HE WAS TOO POOR TO
HIRE A LAWYER.  HE SO INFORMED THE COURT AND REQUESTED THAT COUNSEL BE
APPOINTED TO DEFEND HIM.  HIS REQUEST WAS DENIED.  PUT TO TRIAL WITHOUT
A LAWYER, HE CONDUCTED HIS OWN DEFENSE, WAS FOUND GUILTY, AND WAS
SENTENCED TO EIGHT YEARS' IMPRISONMENT.  THE COURT BELOW FOUND THAT THE
PETITIONER HAD "AT LEAST AN ORDINARY AMOUNT OF INTELLIGENCE."  IT IS
CLEAR FROM HIS EXAMINATION OF WITNESSES THAT HE WAS A MAN OF LITTLE
EDUCATION. 

IF THIS CASE HAD COME TO US FROM A FEDERAL COURT, IT IS CLEAR WE
SHOULD HAVE TO REVERSE IT, BECAUSE THE SIXTH AMENDMENT MAKES THE RIGHT
TO COUNSEL IN CRIMINAL CASES INVIOLABLE BY THE FEDERAL GOVERNMENT.  I
BELIEVE THAT THE FOURTEENTH AMENDMENT MADE THE SIXTH APPLICABLE TO THE
STATES.  FN1 BUT THIS VIEW, ALTHOUGH OFTEN URGED IN DISSENTS, HAS NEVER
BEEN ACCEPTED BY A MAJORITY OF THIS COURT AND IS NOT ACCEPTED TODAY.  A
STATEMENT OF THE GROUNDS SUPPORTING IT IS, THEREFORE, UNNECESSARY AT
THIS TIME.  I BELIEVE, HOWEVER, THAT, UNDER THE PREVAILING VIEW OF DUE
PROCESS, AS REFLECTED IN THE OPINION JUST ANNOUNCED, A VIEW WHICH GIVES
THIS COURT SUCH VAST SUPERVISORY POWERS THAT I AM NOT PREPARED TO
ACCEPT IT WITHOUT GRAVE DOUBTS, THE JUDGMENT BELOW SHOULD BE REVERSED. 

THIS COURT HAS JUST DECLARED THAT DUE PROCESS OF LAW IS DENIED IF A
TRIAL IS CONDUCTED IN SUCH MANNER THAT IT IS "SHOCKING TO THE UNIVERSAL
SENSE OF JUSTICE" OR "OFFENSIVE TO THE COMMON AND FUNDAMENTAL IDEAS OF
FAIRNESS AND RIGHT."  ON ANOTHER OCCASION, THIS COURT HAS RECOGNIZED
THAT WHATEVER IS "IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY" AND
"ESSENTIAL TO THE SUBSTANCE OF A HEARING" IS WITHIN THE PROCEDURAL
PROTECTION AFFORDED BY THE CONSTITUTIONAL GUARANTY OF DUE PROCESS. 
PALKO V. CONNECTICUT, 302 U.S. 319, 325, 327. 

THE RIGHT TO COUNSEL IN A CRIMINAL PROCEEDING IS "FUNDAMENTAL." 
POWELL V. ALABAMA, 287 U.S. 45, 70; GROSJEAN V. AMERICAN PRESS CO., 297
U.S. 233, 243-244.  IT IS GUARDED FROM INVASION BY THE SIXTH AMENDMENT,
ADOPTED TO RAISE AN EFFECTIVE BARRIER AGAINST ARBITRARY OR UNJUST
DEPRIVATION OF LIBERTY BY THE FEDERAL GOVERNMENT.  JOHNSON V. ZERBST,
304 U.S. 458, 462. 

AN HISTORICAL EVALUATION OF THE RIGHT TO A FULL HEARING IN CRIMINAL
CASES, AND THE DANGERS OF DENYING IT, WERE SET OUT IN THE POWELL CASE,
WHERE THIS COURT SAID:  "WHAT  ...  DOES A HEARING INCLUDE? 
HISTORICALLY AND IN PRACTICE, IN OUR OWN COUNTRY AT LEAST, IT HAS
ALWAYS INCLUDED THE RIGHT TO THE AID OF COUNSEL WHEN DESIRED AND
PROVIDED BY THE PERSON ASSERTING THE RIGHT  ...  EVEN THE INTELLIGENT
AND EDUCATED LAYMAN  ...  LACKS BOTH THE SKILL AND KNOWLEDGE ADEQUATELY
TO PREPARE HIS DEFENSE, EVEN THOUGH HE HAVE A PERFECT ONE.  HE REQUIRES
THE GUIDING HAND OF COUNSEL IN EVERY STEP IN THE PROCEEDINGS AGAINST
HIM.  WITHOUT IT, THOUGH HE BE NOT GUILTY, HE FACES THE DANGER OF
CONVICTION BECAUSE HE DOES NOT KNOW HOW TO ESTABLISH HIS INNOCENCE." 
POWELL V. ALABAMA, SUPRA, 68-69.  CF. JOHNSON V. ZERBST, SUPRA, 462
463. 

A PRACTICE CANNOT BE RECONCILED WITH "COMMON AND FUNDAMENTAL IDEAS OF
FAIRNESS AND RIGHT," WHICH SUBJECTS INNOCENT MEN TO INCREASED DANGERS
OF CONVICTION MERELY BECAUSE OF THEIR POVERTY.  WHETHER A MAN IS
INNOCENT CANNOT BE DETERMINED FROM A TRIAL IN WHICH, AS HERE, DENIAL OF
COUNSEL HAS MADE IT IMPOSSIBLE TO CONCLUDE, WITH ANY SATISFACTORY
DEGREE OF CERTAINTY, THAT THE DEFENDANT'S CASE WAS ADEQUATELY
PRESENTED.  NO ONE QUESTIONS THAT DUE PROCESS REQUIRES A HEARING BEFORE
CONVICTION AND SENTENCE FOR THE SERIOUS CRIME OF ROBBERY.  AS THE
SUPREME COURT OF WISCONSIN SAID, IN 1859, " ...  WOULD IT NOT BE A
LITTLE LIKE MOCKERY TO SECURE TO A PAUPER THESE SOLEMN CONSTITUTIONAL
GUARANTIES FOR A FAIR AND FULL TRIAL OF THE MATTERS WITH WHICH HE WAS
CHARGED, AND YET SAY TO HIM WHEN ON TRIAL, THAT HE MUST EMPLOY HIS OWN
COUNSEL, WHO COULD ALONE RENDER THESE GUARANTIES OF ANY REAL PERMANENT
VALUE TO HIM.  ...  WHY THIS GREAT SOLICITUDE TO SECURE HIM A FAIR
TRIAL IF HE CANNOT HAVE THE BENEFIT OF COUNSEL?"  CARPENTER V. DANE
COUNTY, 9 WIS. 274, 276-277.    DENIAL TO THE POOR OF THE REQUEST FOR
COUNSEL IN PROCEEDINGS BASED ON CHARGES OF SERIOUS CRIME HAS LONG BEEN
REGARDED AS SHOCKING TO THE "UNIVERSAL SENSE OF JUSTICE" THROUGHOUT
THIS COUNTRY.  IN 1854, FOR EXAMPLE, THE SUPREME COURT OF INDIANA SAID:
"IT IS NOT TO BE THOUGHT OF, IN A CIVILIZED COMMUNITY, FOR A MOMENT,
THAT ANY CITIZEN PUT IN JEOPARDY OF LIFE OR LIBERTY, SHOULD BE DEBARRED
OF COUNSEL BECAUSE HE WAS TOO POOR TO EMPLOY SUCH AID.  NO COURT COULD
BE RESPECTED, OR RESPECT ITSELF, TO SIT AND HEAR SUCH A TRIAL.  THE
DEFENCE OF THE POOR, IN SUCH CASES, IS A DUTY RESTING SOMEWHERE, WHICH
WILL BE AT ONCE CONCEDED AS ESSENTIAL TO THE ACCUSED, TO THE COURT, AND
TO THE PUBLIC."  WEBB V. BAIRD, 6 IND. 13, 18.  AND MOST OF THE OTHER
STATES HAVE SHOWN THEIR AGREEMENT BY CONSTITUTIONAL PROVISIONS,
STATUTES, OR ESTABLISHED PRACTICE JUDICIALLY APPROVED, WHICH ASSURE
THAT NO MAN SHALL BE DEPRIVED OF COUNSEL MERELY BECAUSE OF HIS
POVERTY.  FN2  ANY OTHER PRACTICE SEEMS TO ME TO DEFEAT THE PROMISE OF
OUR DEMOCRATIC SOCIETY TO PROVIDE EQUAL JUSTICE UNDER THE LAW. 

                               APPENDIX 

I. STATES WHICH REQUIRE THAT INDIGENT DEFENDANTS IN NONCAPITAL AS
WELL AS CAPITAL CRIMINAL CASES BE PROVIDED WITH COUNSEL ON REQUEST: 

A. BY STATUTE.  ARIZONA:  REVISED STATUTES OF ARIZONA TERRITORY,
1901, PENAL CODE, PT. II, TITLE VII, SEC. 858; ARIZONA CODE ANN. 1939,
VOL. III, SEC. 44-904.  ARKANSAS:  COMPILED LAWS, ARKANSAS TERRITORY,
1835, CRIMES AND MISDEMEANORS, SEC. 37; POPE'S DIGEST, 1937, VOL. I, C.
43, SEC. 3877.  CALIFORNIA:  CALIFORNIA PENAL CODE OF 1872, SEC. 987;
DEERING'S PENAL CODE, 1937, SEC. 987.  IDAHO:  TERRITORIAL CRIMINAL
PRACTICE ACT, 1864, SEC. 267; IDAHO CODE, 1932, SECS. 19-1412, 19
1413.  ILLINOIS:  REV. STAT. 1874, CRIMINAL CODE, SEC. 422; JONES'S
ILL. STAT. ANN. 1936, SEC. 37.707.  CF. LAWS, 1933, 430-431.  SEE ALSO,
VISE V. COUNTY OF HAMILTON, 19 ILL. 78, 79(1857).  IOWA:  TERRITORIAL
LAWS, 1839, COURTS, SEC. 64; IOWA CODE, 1939, SEC. 13773.  KANSAS:  SEE
COMPILATION PUBLISHED IN 1856 AS S. DOC. NO. 23, 34TH CONG., 1ST SESS.,
520(C. 129, ART. V, SEC. 4).  LAWS, 1941, C. 291.  LOUISIANA:  ACT OF
MAY 4, 1805, OF THE TERRITORY OF ORLEANS, SEC. 35; DART'S LOUISIANA
CODE OF CRIMINAL PROCEDURE, 1932, TITLE XIII, ART. 143.  MINNESOTA:
MINNESOTA GENERAL LAWS, 1869, C. LXXII, SEC. 1; MASON'S MINNESOTA
STATUTES, 1927, SECS. 9957, 10667.  MISSOURI:  DIGEST OF LAWS OF
MISSOURI TERRITORY, 1818, CRIMES AND MISDEMEANOURS, SEC. 35; REV. STAT.
1939, SEC. 4003.  MONTANA:  MONTANA TERRITORY CRIMINAL PRACTICE ACT OF
1872, SEC. 196(LAWS OF MONTANA, CODIFIED STAT. 1871-1872, 220); REVISED
CODE, 1935, SEC. 11886.  NEBRASKA:  GENERAL STATUTES, 1873, C. 58, SEC.
437; COMPILED STAT. 1929, SEC. 29-1803.  NEVADA:  ACT OF NOVEMBER 26,
1861(COMPILED LAWS, 1861-1873, VOL. I, 477, 493); COMPILED LAWS, 1929,
VOL. 5, SEC. 10883.  NEW HAMPSHIRE:  LAWS, 1907, C. 136; LAWS, 1937, C.
22.  NEW JERSEY:  ACT OF MARCH 6, 1795, SEC. 2; NEW JERSEY STAT. SEC.
2.190-3.  NEW YORK:  CODE OF CRIMINAL PROCEDURE, SEC. 308(ENACTED IN
1881, STILL IN FORCE).  SEE PEOPLE V. SUPERVISORS OF ALBANY COUNTY, 28
HOW.  PR. 22, 24(1864).  NORTH DAKOTA:  DAKOTA TERRITORY CODE OF
PROCEDURE, 1863, SEC. 249(REV.  CODES, 1877, CRIMINAL PROCEDURE, 875);
COMPILED LAWS, 1913, VOL. II, SECS. 8965, 10721.  OHIO: ACT OF FEBRUARY
26, 1816, SEC. 14(CHASE, STATUTES OF OHIO, 1788-1833, VOL. II, 982);
THROCKMORTON'S OHIO CODE ANN. 1940, VOL. II, SEC. 13439-2.  OKLAHOMA:
OKLAHOMA TERRITORIAL STAT. 1890, C. 70, SEC. 10; STAT. ANN. 1941 SUPP.,
TITLE 22, SEC. 464.  OREGON:  ACT OF OCTOBER 19, 1864(GENERAL LAWS,
1845-1864, C. 37, SEC. 381; LAWS 1937, C. 406(COMPILED LAWS ANN., VOL.
III, SEC. 26-804).  SOUTH DAKOTA:  DAKOTA TERRITORY CODE OF PROCEDURE,
1863, SEC. 249(REV.  CODES, 1877, CRIMINAL PROCEDURE 875); CODE OF
1939, VOL. II, SEC. 34.1901.  TENNESSEE:  CODE OF 1857-1858, SECS.
5205, 5206; CODE OF 1938, SECS. 11733, 11734.  UTAH:  LAWS OF TERRITORY
OF UTAH, 1878, CRIMINAL PROCEDURE, SEC. 181; REV. STAT. 1933, SEC. 105
22-12.  WASHINGTON:  STATUTES OF TERRITORY OF WASHINGTON, 1854,
CRIMINAL PRACTICE ACT, SEC. 89; REMINGTON'S REVISED STATUTES, 1932,
VOL. IV, SECS. 2095, 2305.  WYOMING:  LAWS OF WYOMING TERRITORY, 1869,
CRIMINAL PROCEDURE, SEC. 98; REV. STAT. 1931, SEC. 33-501. 

B. BY JUDICIAL DECISION OR ESTABLISHED PRACTICE JUDICIALLY APPROVED. 
CONNECTICUT:  FOR AN ACCOUNT OF EARLY PRACTICE IN CONNECTICUT, SEE
ZEPHANIAH SWIFT "A SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT,"
VOL. II, 392:  "THE CHIEF JUSTICE THEN, BEFORE THE PRISONER IS CALLED
UPON TO PLEAD, ASKS THE PRISONER IF HE DESIRES COUNSEL, WHICH IF
REQUESTED, IS ALWAYS GRANTED, AS A MATTER OF COURSE.  ON HIS NAMING
COUNSEL, THE COURT WILL APPOINT OR ASSIGN THEM.  IF FROM ANY CAUSE, THE
PRISONER DECLINE TO REQUEST OR NAME COUNSEL, AND A TRIAL IS HAD,
ESPECIALLY IN THE CASE OF MINORS, THE COURT WILL ASSIGN PROPER
COUNSEL.  WHEN COUNSEL ARE ASSIGNED, THE COURT WILL ENQUIRE OF THEM,
WHETHER THEY HAVE ADVISED WITH THE PRISONER, SO THAT HE IS READY TO
PLEAD, AND IF NOT, WILL ALLOW THEM PROPER TIME FOR THAT PURPOSE.  BUT
IT IS USUALLY THE CASE THAT THE PRISONER HAS PREVIOUSLY EMPLOYED AND
CONSULTED COUNSEL, AND OF COURSE IS PREPARED TO PLEAD."  SEE POWELL V.
ALABAMA, 287 U.S. 45, FOOTNOTE, 63-64.  SEE ALSO, CONNECTICUT GENERAL
STATUTES, REVISION OF 1930, SECS. 2267, 6476.  FLORIDA:  CUTTS V.
STATE, 54 FLA. 21, 23, 45 SO. 491(1907).  SEE COMPILED GENERAL LAWS,
1927, SEC. 8375(CAPITAL CRIMES).  INDIANA:  WEBB V. BAIRD, 6 IND. 13,
18(1854).  SEE ALSO KNOX COUNTY COUNCIL V. STATE EX REL. MCCORMICK, 217
IND. 493, 497-498, 29 N.E.2D 405(1940); STATE V. HILGEMANN, 218 IND.
572, 34 N.E.2D 129, 131(1941).  MICHIGAN:  PEOPLE V. CRANDELL, 270
MICH. 124, 127, 258 N.W. 224(1935).  PENNSYLVANIA:  COMMONWEALTH V.
RICHARDS, 111 PA. SUPER.  124, 169 A. 464(1933).  SEE COMMONWEALTH EX
REL. MCGLINN V. SMITH, 344 PA. 41, 49, 59, 24 A.2D 1.  VIRGINIA:
WATKINS V. COMMONWEALTH, 174 VA. 518, 521-525, 6 S.E.2D 670(1940). 
WEST VIRGINIA: STATE V. KELLISON, 56 W. VA. 690, 692-693, 47 S.E.
166(1904).  WISCONSIN:  CARPENTER V. DANE COUNTY, 9 WIS. 274(1859). 
SEE STAT. 1941, SEC. 357.26. 

C. BY CONSTITUTIONAL PROVISION.  GEORGIA:  CONSTITUTION OF 1865, ART.
1, PAR. 8.  SEE MARTIN V. GEORGIA, 51 GA. 567, 568(1874).  KENTUCKY:
KENTUCKY CONSTITUTION, SEC. 11.  SEE FUGATE V. COMMONWEALTH, 254 KY.
663, 665, 72 S.W.2D 47(1934).  II.  STATES WHICH ARE WITHOUT
CONSTITUTIONAL PROVISION, STATUTES, OR JUDICIAL DECISIONS CLEARLY
ESTABLISHING THIS REQUIREMENT: 

COLORADO:  GENERAL LAWS, 1877, SECS. 913-916; COLORADO STAT. ANN.
1935, VOL. 2, C. 48, SECS. 502, 505, AS AMENDED BY LAWS OF 1937, 498,
SEC. 1.  SEE ABSHIER V. PEOPLE, 87 COLO. 507, 517, 289 P. 1081. 
DELAWARE:  SEE 6 LAWS OF DELAWARE 741; 7 ID. 410; REV. CODE, 1935,
SECS. 4306, 4310.  MAINE:  SEE REV. STAT. 1857, 713; REV. STAT. 1930,
C. 146, SEC. 14.  MASSACHUSETTS:  SEE MCDONALD V. COMMONWEALTH, 173
MASS. 322, 327, 53 N.E. 874(1899).  NEW MEXICO.  NORTH CAROLINA.  RHODE
ISLAND:  SEE STATE V. HUDSON, 55 R.I. 141, 179 A. 130(1935); GENERAL
LAWS, 1938, C. 625, SEC. 62.  SOUTH CAROLINA:  SEE STATE V. JONES, 172
S.C. 129, 130, 173 S.E. 77(1934); CODE, 1932, VOL. I, SEC. 980. 
VERMONT.  III.  STATES IN WHICH DICTA OF JUDICIAL OPINIONS ARE IN
HARMONY WITH THE DECISION BY THE COURT BELOW IN THIS CASE: 

ALABAMA:  GILCHRIST V. STATE, 234 ALA. 73, 74, 173 SO. 651. 
MISSISSIPPI:  REED V. STATE, 143 MISS.  686, 689, 109 SO. 715. 

IV.  STATES IN WHICH THE REQUIREMENT OF COUNSEL FOR INDIGENT
DEFENDANTS IN NON-CAPITAL CASES HAS BEEN AFFIRMATIVELY REJECTED: 

MARYLAND:  SEE, HOWEVER, COATES V. STATE, 180 MD. 502, 25 A.2D 676. 
TEXAS:  GILLEY V. STATE, 114 TEX. CR. 548, 26 S.W.2D 1070.  BUT CF.
BRADY V. STATE, 122 TEX. CR. 275, 278, 54 S.W.2D 513. 

FN1  DISCUSSION OF THE FOURTEENTH AMENDMENT BY ITS SPONSORS IN THE
SENATE AND HOUSE SHOWS THEIR PURPOSE TO MAKE SECURE AGAINST INVASION BY
THE STATES THE FUNDAMENTAL LIBERTIES AND SAFEGUARDS SET OUT IN THE BILL
OF RIGHTS.  THE LEGISLATIVE HISTORY AND SUBSEQUENT COURSE OF THE
AMENDMENT TO ITS FINAL ADOPTION HAVE BEEN DISCUSSED IN FLACK, "THE
ADOPTION OF THE FOURTEENTH AMENDMENT."  FLACK CITES THE CONGRESSIONAL
DEBATES, COMMITTEE REPORTS, AND OTHER DATA ON THE SUBJECT.  WHETHER THE
AMENDMENT ACCOMPLISHED THE PURPOSE ITS SPONSORS INTENDED HAS BEEN
CONSIDERED BY THIS COURT IN THE FOLLOWING DECISIONS, AMONG OTHERS:
O'NEIL V. VERMONT, 144 U.S. 323, DISSENT, 337; MAXWELL V. DOW, 176 U.S.
581, DISSENT, 605; TWINING V. NEW JERSEY, 211 U.S. 78, 98-99, DISSENT,
114. 

FN2  IN THIRTY-FIVE STATES, THERE IS SOME CLEAR LEGAL REQUIREMENT OR
AN ESTABLISHED PRACTICE THAT INDIGENT DEFENDANTS IN SERIOUS NON-CAPITAL
AS WELL AS CAPITAL CRIMINAL CASES (E.G., WHERE THE CRIME CHARGED IS A
FELONY, A "PENITENTIARY OFFENSE," AN OFFENSE PUNISHABLE BY IMPRISONMENT
FOR SEVERAL YEARS) BE PROVIDED WITH COUNSEL ON REQUEST.  IN NINE
STATES, THERE ARE NO CLEARLY CONTROLLING STATUTORY OR CONSTITUTIONAL
PROVISIONS AND NO DECISIVE REPORTED CASES ON THE SUBJECT.  IN TWO
STATES, THERE ARE DICTA IN JUDICIAL DECISIONS INDICATING A PROBABILITY
THAT THE HOLDING OF THE COURT BELOW IN THIS CASE WOULD BE FOLLOWED
UNDER SIMILAR CIRCUMSTANCES.  IN ONLY TWO STATES (INCLUDING THE ONE IN
WHICH THIS CASE AROSE) HAS THE PRACTICE HERE UPHELD BY THIS COURT BEEN
AFFIRMATIVELY SUSTAINED.  APPENDED TO THIS OPINION IS A LIST OF THE
SEVERAL STATES DIVIDED INTO THESE FOUR CATEGORIES. 
..END :





















STANDARD OIL CO. V. JOHNSON, 316 U.S. 481 


NO. 1125.  ARGUED MAY 5, 1942.  - DECIDED JUNE 1, 1942.  - 19 CAL.2D
104, 119 P.2D 329, REVERSED. 


1.  WHERE THE VALIDITY OF A STATE STATUTE, AS CONSTRUED, WAS DRAWN IN
QUESTION IN THE STATE COURT ON THE GROUND OF ITS BEING REPUGNANT TO THE
CONSTITUTION OF THE UNITED STATES, AN APPEAL LIES UNDER JUD.  CODE SEC.
237(A) FROM A JUDGMENT OF THE STATE COURT SUSTAINING THE STATUTE.  P.
482. 

2.  IN UPHOLDING A STATE TAX ON SALES OF MOTOR FUEL, AS APPLIED TO
SALES TO UNITED STATES ARMY POST EXCHANGES, UNDER A STATE STATUTE
CONTAINING AN EXPRESS EXCEPTION OF FUEL SOLD TO THE GOVERNMENT OF THE
UNITED STATES OR ANY DEPARTMENT THEREOF, THE STATE COURT CONSTRUED THE
EXCEPTION AS INAPPLICABLE BECAUSE, AS IT CONCLUDED UPON A CONSIDERATION
OF THE RELATION OF SUCH EXCHANGES TO THE UNITED STATES, THEY WERE NOT
INSTRUMENTALITIES OR AGENCIES OF THE UNITED STATES.  HELD, A DECISION
OF A FEDERAL QUESTION BY WHICH THIS COURT IS NOT BOUND UPON APPEAL.  P.
483. 

3.  ARMY POST EXCHANGES ARE ESTABLISHED AND OPERATED UNDER
REGULATIONS OF THE SECRETARY OF WAR, AUTHORIZED BY ACTS OF CONGRESS,
AND HAVING THE FORCE OF LAW.  P. 483. 

4.  ARMY POST EXCHANGES ARE ARMS OF THE FEDERAL GOVERNMENT -
INTERGRAL PARTS OF THE WAR DEPARTMENT PARTAKING OF ITS IMMUNITY UNDER
THE FEDERAL CONSTITUTION AND STATUTES.  P. 485. 

5.  SINCE THERE IS NO WAY OF KNOWING WHETHER THE CALIFORNIA SUPERME
COURT WOULD HAVE CONSTRUED THE ACT IN QUESTION AS APPLICABLE TO POST
EXCHANGES IF IT HAD CORRECTLY UNDERSTOOD THEIR FEDERAL STATUS, A
DETERMINATION OF THE CONSTITUTIONALITY OF SUCH APPLICATION IS NOT
CALLED FOR BY THE PRESENT RECORD; AND THE CASE IS THEREFORE REMANDED TO
THAT COURT FOR FURTHER PROCEEDINGS.  P. 485. 

STANDARD OIL COMPANY OF CALIFORNIA V. JOHNSON, TREASURER OF
CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT AGAINST THE OIL COMPANY IN
AN ACTION TO RECOVER A TAX PAYMENT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE CALIFORNIA MOTOR VEHICLE FUEL LICENSE TAX ACT  FN1  IMPOSES A
LICENSE TAX, MEASURED BY GALLONAGE, ON THE PRIVILEGE OF DISTRIBUTING
ANY MOTOR VEHICLE FUEL.  SECTION 10 STATES THAT THE ACT IS INAPPLICABLE
"TO ANY MOTOR VEHICLE FUEL SOLD TO THE GOVERNMENT OF THE UNITED STATES
OR ANY DEPARTMENT THEREOF FOR OFFICIAL USE OF SAID GOVERNMENT."  THE
APPELLANT, A "DISTRIBUTOR"  FN2 WITHIN THE MEANING OF THE ACT, SOLD
GASOLINE TO THE UNITED STATES ARMY POST EXCHANGES IN CALIFORNIA.  THE
STATE LEVIED A TAX, AND THE APPELLANT PAID IT UNDER PROTEST.  THE
APPELLANT THEN FILED THIS SUIT IN THE SUPERIOR COURT OF SACRAMENTO
COUNTY SEEKING TO RECOVER THE PAYMENT ON TWO GROUNDS:  (1) THAT SALES
TO THE EXCHANGES WERE EXEMPT FROM TAX UNDER SEC. 10; (2) THAT, IF
CONSTRUED AND APPLIED TO REQUIRE PAYMENT OF THE TAX ON SUCH SALES, THE
ACT WOULD IMPOSE A BURDEN UPON INSTRUMENTALITIES OR AGENCIES OF THE
UNITED STATES CONTRARY TO THE FEDERAL CONSTITUTION.  HOLDING AGAINST
THE APPELLANT ON BOTH GROUNDS, THE TRIAL COURT RENDERED JUDGMENT FOR
THE STATE.  THE SUPREME COURT OF CALIFORNIA AFFIRMED.  19 CAL.2D 104,
119 P.2D 329.  SINCE VALIDITY OF THE STATE STATUTE AS CONSTRUED WAS
DRAWN IN QUESTION ON THE GROUND OF ITS BEING REPUGNANT TO THE
CONSTITUTION, WE THINK THE CASE IS PROPERLY HERE ON APPEAL UNDER SEC.
237(A) OF THE JUDICIAL CODE. 

SINCE SEC. 10 OF THE CALIFORNIA ACT MADE THE TAX INAPPLICABLE "TO ANY
MOTOR VEHICLE FUEL SOLD TO THE GOVERNMENT OF THE UNITED STATES OR ANY
DEPARTMENT THEREOF," IT WAS NECESSARY FOR THE SUPREME COURT OF
CALIFORNIA TO DETERMINE WHETHER THE LANGUAGE OF THIS EXEMPTION INCLUDED
SALES TO POST EXCHANGES.  IF THE COURT'S CONSTRUCTION OF SEC. 10 OF THE
ACT HAD BEEN BASED PURELY ON LOCAL LAW, THIS CONSTRUCTION WOULD HAVE
BEEN CONCLUSIVE, AND WE SHOULD HAVE TO DETERMINE WHETHER THE STATUTE SO
CONSTRUED AND APPLIED IS REPUGNANT TO THE FEDERAL CONSTITUTION.  BUT IN
DECIDING THAT POST EXCHANGES WERE NOT "THE GOVERNMENT OF THE UNITED
STATES OR ANY DEPARTMENT THEREOF," THE COURT DID NOT RELY UPON THE LAW
OF CALIFORNIA.  ON THE CONTRARY, IT RELIED UPON ITS DETERMINATION
CONCERNING THE RELATIONSHIP BETWEEN POST EXCHANGES AND THE GOVERNMENT
OF THE UNITED STATES, A RELATIONSHIP WHICH IS CONTROLLED BY FEDERAL
LAW.  FOR POST EXCHANGES OPERATE UNDER REGULATIONS OF THE SECRETARY OF
WAR PURSUANT TO FEDERAL AUTHORITY.  THESE REGULATIONS AND THE PRACTICES
UNDER THEM ESTABLISH THE RELATIONSHIP BETWEEN THE POST EXCHANGE AND THE
UNITED STATES GOVERNMENT, AND TOGETHER WITH THE RELEVANT STATUTORY AND
CONSTITUTIONAL PROVISIONS FROM WHICH THEY DERIVE, AFFORD THE DATA UPON
WHICH THE LEGAL STATUS OF THE POST EXCHANGE MAY BE DETERMINED.  IT WAS
UPON A DETERMINATION OF A FEDERAL QUESTION, THEREFORE, THAT THE SUPREME
COURT OF CALIFORNIA RESTED ITS CONCLUSION THAT, BY SEC. 10, SALES TO
POST EXCHANGES WERE NOT EXEMPTED FROM THE TAX.  SINCE THIS
DETERMINATION OF A FEDERAL QUESTION WAS BY A STATE COURT, WE ARE NOT
BOUND BY IT.  WE PROCEED TO CONSIDER WHETHER IT IS CORRECT. 

ON JULY 25, 1895, THE SECRETARY OF WAR, UNDER AUTHORITY OF
CONGRESSIONAL ENACTMENTS  FN3 PROMULGATED REGULATIONS PROVIDING FOR THE
ESTABLISHMENT OF POST EXCHANGES.  FN4  THESE REGULATIONS HAVE SINCE
BEEN AMENDED FROM TIME TO TIME AND THE EXCHANGE HAS BECOME A REGULAR
FEATURE OF ARMY POSTS.  THAT THE ESTABLISHMENT AND CONTROL OF POST
EXCHANGES HAVE BEEN IN ACCORDANCE WITH REGULATIONS RATHER THAN SPECIFIC
STATUTORY DIRECTIONS DOES NOT ALTER THEIR STATUS, FOR AUTHORIZED WAR
DEPARTMENT REGULATIONS HAVE THE FORCE OF LAW.  FN5 

CONGRESSIONAL RECOGNITION THAT THE ACTIVITIES OF POST EXCHANGES ARE
GOVERNMENTAL HAS BEEN FREQUENT.  SINCE 1903,  FN6  CONGRESS HAS
REPEATEDLY MADE SUBTANTIAL APPROPRIATIONS TO BE EXPENDED UNDER THE
DIRECTION OF THE SECRETARY OF WAR FOR CONSTRUCTION, EQUIPMENT, AND
MAINTENANCE OF SUITABLE BUILDINGS FOR POST EXCHANGES.  IN 1933 AND
1934, CONGRESS ORDERED CERTAIN MONEYS DERIVED FROM DISBANDED EXCHANGES
TO BE HANDED OVER TO THE FEDERAL TREASURY.  FN7  AND IN 1936, CONGRESS
GAVE CONSENT TO STATE TAXATION OF GASOLINE SOLD BY OR THROUGH POST
EXCHANGES, WHEN THE GASOLINE WAS NOT FOR THE EXCLUSIVE USE OF THE
UNITED STATES.  FN8 

THE COMMANDING OFFICER OF AN ARMY POST, SUBJECT TO THE REGULATIONS
AND THE COMMANDS OF HIS OWN SUPERIOR OFFICERS, HAS COMPLETE AUTHORITY
TO ESTABLISH AND MAINTAIN AN EXCHANGE.  HE DETAILS A POST EXCHANGE
OFFICER TO MANAGE ITS AFFAIRS.  THIS OFFICER AND THE COMMANDING
OFFICERS OF THE VARIOUS COMPANY UNITS MAKE UP A COUNCIL WHICH
SUPERVISES EXCHANGE ACTIVITIES.  NONE OF THESE OFFICERS RECEIVES ANY
COMPENSATION OTHER THAN HIS REGULAR SALARY.  THE OBJECT OF THE
EXCHANGES IS TO PROVIDE CONVENIENT AND RELIABLE SOURCES WHERE SOLDIERS
CAN OBTAIN THEIR ORDINARY NEEDS AT THE LOWEST POSSIBLE PRICES. 
SOLDIERS, THEIR FAMILIES, AND CIVILIANS EMPLOYED ON MILITARY POSTS HERE
AND ABROAD CAN BUY AT EXCHANGES.  THE GOVERNMENT ASSUMES NONE OF THE
FINANCIAL OBLIGATIONS OF THE EXCHANGE.  BUT GOVERNMENT OFFICERS, UNDER
GOVERNMENT REGULATIONS, HANDLE AND ARE RESPONSIBLE FOR ALL FUNDS OF THE
EXCHANGE WHICH ARE OBTAINED FROM THE COMPANIES OR DETACHMENTS COMPOSING
ITS MEMBERSHIP.  PROFITS, IF ANY, DO NOT GO TO INDIVIDUALS.  THEY ARE
USED TO IMPROVE THE SOLDIERS' MESS, TO PROVIDE VARIOUS TYPES OF
RECREATION, AND IN GENERAL TO ADD TO THE PLEASURE AND COMFORT OF THE
TROOPS. 

FROM ALL OF THIS, WE CONCLUDE THAT POST EXCHANGES AS NOW OPERATED ARE
ARMS OF THE GOVERNMENT DEEMED BY IT ESSENTIAL FOR THE PERFORMANCE OF
GOVERNMENTAL FUNCTIONS.  THEY ARE INTEGRAL PARTS OF THE WAR DEPARTMENT,
SHARE IN FULFILLING THE DUTIES ENTRUSTED TO IT, AND PARTAKE OF WHATEVER
IMMUNITIES IT MAY HAVE UNDER THE CONSTITUTION AND FEDERAL STATUTES.  IN
CONCLUDING OTHERWISE, THE SUPREME COURT OF CALIFORNIA WAS IN ERROR. 

WHETHER THE CALIFORNIA SUPREME COURT WOULD HAVE CONSTRUED THE MOTOR
VEHICLE FUEL LICENSE ACT AS APPLICABLE TO POST EXCHANGES IF IT HAD
DECIDED THE ISSUE OF LEGAL STATUS OF POST EXCHANGES IN ACCORDANCE WITH
THIS OPINION, WE HAVE NO WAY OF KNOWING.  HENCE, A DETERMINATION HERE
OF THE CONSTITUTIONALITY OF SUCH AN APPLICATION OF THE ACT IS NOT
CALLED FOR BY THE STATE OF THE RECORD.  CF. MINNESOTA V. NATIONAL TEA
CO., 309 U.S. 551, 557.  ACCORDINGLY, WE REVERSE THE JUDGMENT AND
REMAND THE CAUSE TO THE COURT BELOW FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  CAL. STATS. 1923, PP. 572, 573, 574; 1927, P. 1309; 1933, PP.
1636, 1637; 1937, P. 2219. 

FN2 SECTION 7 OF THE ACT PROVIDES:  "FOR THE PURPOSES OF THIS ACT ALL
MOTOR VEHICLE FUEL SOLD, DONATED, CONSIGNED FOR SALE, BARTERED OR USED
SHALL BE DEEMED TO BE DISTRIBUTED.  ..." 

FN3  16 STAT. 315, 319; 18 STAT. 337. 

FN4  G.O. 46, HDQRS.  OF THE ARMY. 

FN5  UNITED STATES V. ELIASON, 16 PET. 291, 302; GRATIOT V. UNITED
STATES, 4 HOW.  80, 117-118. 

FN6  32 STAT. 927, 938. 

FN7  47 STAT. 1571, 1573; 48 STAT. 1224, 1229.  SEE HEARINGS, HOUSE,
WAR DEPARTMENT APPROPRIATION BILL, 1934, 72D CONG., 2D SESS,, 648. 

FN8  49 STAT. 1519, 1521, AMENDED BY 54 STAT. 1059, 1060-1061. 
..END :















QUERY V. UNITED STATES, 316 U.S. 486 


NO. 619.  ARGUED MAY 5, 1942.  - DECIDED JUNE 1, 1942.  - 121 F.2D 631,
VACATED. 


1.  A SUIT TO RESTRAIN THE ENFORCEMENT OF A STATE TAX ON THE PURCHASE
AND SALE OF GOODS AT ARMY POST EXCHANGES, UPON THE GROUND THAT SUCH
EXCHANGES ARE FEDERAL INSTRUMENTALITIES AND THAT THEREFORE THE STATE
STATUTE IMPOSING THE TAX IS, AS APPLIED TO THEM, UNCONSTITUTIONAL, IS A
SUIT COGNIZABLE BY A THREE-JUDGE DISTRICT COURT, UNDER JUD.  CODE SEC.
266.  PP. 487, 490. 

2.  AN APPEAL FROM A DECREE OF INJUNCTION GRANTED BY A THREE-JUDGE
DISTRICT COURT UNDER JUD.  CODE SEC. 266, LIES DIRECTLY TO THIS COURT,
NOT TO THE CIRCUIT COURT OF APPEALS.  P. 490. 

3.  WHERE APPEALS IN SUCH A CASE WERE TAKEN ERRONEOUSLY TO THE
CIRCUIT COURT OF APPEALS AND FROM THE COURT TO THIS, AND THE TIME
WITHIN WHICH A DIRECT APPEAL FROM THE THREE-JUDGE DISTRICT COURT TO
THIS COURT, UNDER JUD.  CODE SEC. 266, HAD ELAPSED, THE DECREE OF THE
CIRCUIT COURT OF APPEALS WAS VACATED AND THE CAUSE REMANDED TO THE
DISTRICT COURT FOR THE ENTRY OF A FRESH DECREE FROM WHICH A TIMELY
APPEAL MIGHT BE TAKEN.  P. 491. 

QUERY ET AL., CONSTITUTING THE SOUTH CAROLINA TAX COMMISSION, V.
UNITED STATES ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, POST, P. 653, TO REVIEW A DECREE SUSTAINING AN INJUNCTION
AGAINST ENFORCEMENT OF A STATE SALES TAX AS APPLIED TO THE PURCHASE AND
SALE OF GOODS AT ARMY POST EXCHANGES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A STATUTE OF SOUTH CAROLINA IMPOSES A LICENSE TAX FOR THE PRIVILEGE
OF SELLING TOBACCO PRODUCTS, PLAYING CARDS, SOFT DRINKS, AND OTHER
ENUMERATED ARTICLES.  FN1 THE UNITED STATES AND TWO ARMY OFFICERS
BROUGHT THIS SUIT AGAINST THE MEMBERS OF THE SOUTH CAROLINA TAX
COMMISSION TO ENJOIN ENFORCEMENT OF THIS STATUTE WITH RESPECT TO
ACTIVITIES OF UNITED STATES ARMY POST EXCHANGES LOCATED WITHIN THE
STATE.  THE BILL ALLEGED THAT POST EXCHANGES ARE INSTRUMENTALITIES OF
THE UNITED STATES, OPERATING AS VOLUNTARY UNINCORPORATED ORGANIZATIONS
UNDER THE DIRECTION AND SUPERVISION OF THE UNITED STATES ARMY AND IN
ACCORDANCE WITH RULES AND REGULATIONS PROMULGATED BY THE SECRETARY OF
WAR; THAT THE RESPONDENTS HAD ORDERED THAT THE TAX BE APPLIED TO THE
PURCHASE AND SALE OF COMMODITIES BY THE EXCHANGES; THAT ENFORCEMENT
WOULD INFLICT IMMEDIATE AND IRREPARABLE DAMAGE FOR WHICH THE
COMPLAINANTS WERE WITHOUT ANY PLAIN, SPEEDY, AND EFFICIENT REMEDY IN
THE COURTS OF SOUTH CAROLINA; THAT THE CONGRESSIONAL CONSENT GIVEN BY A
RECENT FEDERAL STATUTE (54 STAT. 1059) FOR THE IMPOSITION OF CERTAIN
KINDS OF STATE TAXES WITHIN "FEDERAL AREAS" DID NOT EXTEND TO THE
IMPOSITION OF TAXES ON THE PURCHASES AND SALES OF COMMODITIES BY POST
EXCHANGES; AND THAT THE THREATENED APPLICATION OF THE SOUTH CAROLINA
STATUTE WOULD INTERFERE WITH THE ACTIVITIES OF THE UNITED STATES
GOVERNMENT AND WOULD BE REPUGNANT TO THE CONSTITUTION OF THE UNITED
STATES.  THE RESPONDENTS' ANSWER ADMITTED THE THREATENED ENFORCEMENT
AND THE ABSENCE OF REMEDY IN THE SOUTH CAROLINA COURTS, BUT DENIED THAT
POST EXCHANGES ARE INSTRUMENTALITIES OF THE UNITED STATES AND THAT
APPLICATION OF THE STATUTE TO THEM WOULD BE REPUGNANT TO THE UNITED
STATES CONSTITUTION.  WITH RESPECT TO THE FEDERAL STATUTE REFERRED TO
IN THE COMPLAINT, THE ANSWER STATED:  "  ...  NO CONSENT OF CONGRESS IS
NECESSARY TO PERMIT THE STATE TO LEVY ITS LAWFUL TAX  ...  , THE
TERRITORIAL IMMUNITY HAVING BEEN REMOVED BY PUBLIC ACT NO. 819, 76TH
CONGRESS." 

A FEDERAL DISTRICT COURT OF THREE JUDGES, SATISFYING THE REQUIREMENTS
OF SEC. 266 OF THE JUDICIAL CODE,  FN2  HEARD THE CASE AND GRANTED THE
INJUNCTION SOUGHT BY THE COMPLAINANTS.  37 F.SUPP.  972.  THE OPINION
ACCOMPANYING THE DECREE STATED, HOWEVER, THAT THE THREE JUDGES WERE OF
THE VIEW THAT A DISTRICT JUDGE ALONE HAD EXCLUSIVE JURISDICTION TO PASS
UPON THE CASE; AND THAT THE DECREE SHOULD THEREFORE BE CONSIDERED "NOT
AS THE DECREE OF A THREE-JUDGE COURT, BUT AS HIS DECREE, FROM WHICH
APPEAL LIES TO THE CIRCUIT COURT OF APPEALS AND NOT TO THE SUPREME
COURT."  NEVERTHELESS, ALL THREE JUDGES SIGNED THE DECREE "SO THAT IN
THE EVENT IT SHOULD HEREAFTER BE DETERMINED THAT THE CASE WAS ONE FOR
THREE JUDGES UNDER THE STATUTE, AN APPROPRIATE DECREE WILL HAVE BEEN
ENTERED."  37 F.SUPP.  972, 977.  THE CIRCUIT COURT OF APPEALS, OF THE
SAME VIEW ON THE QUESTION OF JURISDICTION, GRANTED AN APPEAL AND
AFFIRMED.  121 F.2D 631. 

IF NO MORE THAN A QUESTION OF CONSTRUCTION OF A FEDERAL STATUTE HAD
BEEN INVOLVED, THERE WOULD HAVE BEEN NO NECESSITY FOR A THREE-JUDGE
COURT PURSUANT TO SEC. 266.  EX PARTE BUDER, 271 U.S. 461, 466-467.  AS
A BASIS FOR ITS CONCLUSION THAT A COURT OF ONE DISTRICT JUDGE WAS THE
APPROPRIATE FORUM HERE, THE DISTRICT COURT STATED THAT THE "QUESTION
INVOLVED IS WHETHER UNDER THE PROVISIONS OF PUBLIC ACT NO. 819, 76TH
CONG., 3D SESS.,  ...  THE TAXES IMPOSED BY  ...  THE STATE STATUTE,
ARE APPLICABLE TO AND COLLECTIBLE FROM THE UNITED STATES ARMY POST
EXCHANGE AT FORT JACKSON, RICHLAND COUNTY, SOUTH CAROLINA."  FN3  AND
BOTH COURTS BELOW THOUGHT THAT DISPOSITION OF THE CASE REQUIRED ONLY A
DETERMINATION OF THE STATUS OF POST EXCHANGES CHANGES WITHIN THE
MEANING OF THE FEDERAL STATUTE.  37 F.SUPP.  972, 973, 977; 121 F.2D
631, 632.  BUT THE COMPLAINANTS SOUGHT TO RESTRAIN THE STATE OFFICERS
FROM ENFORCING THE STATE STATUTE UPON THE GROUND OF THE
UNCONSTITUTIONALITY OF THE THREATENED APPLICATION.  NOT ONLY WAS
UNCONSTITUTIONALITY THE GROUND ASSERTED BY THE COMPLAINTS FOR THE
RELIEF SOUGHT, BUT IT APPEARS THAT THE RELIEF AWARDED WAS PREDICATED ON
THE SAME GROUND.  CF. WILENTZ V. SOVEREIGN CAMP, 306 U.S. 573, 576. 

FOR THE FEDERAL ACT, SO FAR AS HERE RELEVANT, MERELY DECLARES THAT
"NO PERSON SHALL BE RELIEVED FROM LIABILITY" FOR CERTAIN STATE TAXES
"ON THE GROUND THAT THE SALE OR USE, WITH RESPECT TO WHICH SUCH TAX IS
LEVIED, OCCURRED IN WHOLE OR IN PART WITHIN A FEDERAL AREA."  A PROVISO
ADDS THAT THE "ACT SHALL NOT BE DEEMED TO AUTHORIZE THE LEVY OR
COLLECTION OF ANY TAX ON OR FROM THE UNITED STATES OR ANY
INSTRUMENTALITY THEREOF."  THE COMPLAINANTS, ASSERTING THAT THE POST
EXCHANGE IS A FEDERAL INSTRUMENTALITY TO WHICH THE STATUTORY CONSENT
DOES NOT APPLY, REST THEIR ENTIRE CASE UPON A NON-STATUTORY GROUND: THE
IMMUNITY FROM STATE TAXATION WHICH THEY CONTEND MUST BE GIVEN, UNDER
THE CONSTITUTION, TO THE POST EXCHANGE AS AN INSTRUMENTALITY OF THE
UNITED STATES.  AND NOTWITHSTANDING ITS ASSERTION THAT ONLY THE MEANING
OF THE FEDERAL STATUTE WAS INVOLVED, THE DISTRICT COURT NEVERTHELESS
FOUND IT NECESSARY TO INCLUDE IN THE OPINION ACCOMPANYING THE DECREE A
STATEMENT THAT THE THREATS AND ATTEMPTS TO ENFORCE THE STATE STATUTE
"CONSTITUTE AN INTERFERENCE WITH THE ACTIVITIES OF THE UNITED STATES,
AND ARE UNCONSTITUTIONAL." 

HERE A SUBSTANTIAL CHARGE HAS BEEN MADE THAT A STATE STATUTE, AS
APPLIED TO THE COMPLAINANTS, VIOLATES THE CONSTITUTION.  UNDER SUCH
CIRCUMSTANCES, WE HAVE HELD THAT RELIEF IN THE FORM OF AN INJUNCTION
CAN BE AFFORDED ONLY BY A THREE-JUDGE COURT PURSUANT TO SEC. 266. 
STRATTON V. ST. LOUIS S.W. RY. CO., 282 U.S. 10; EX PARTE BRANSFORD,
310 U.S. 354, 361.  AND THIS IS NOT, LIKE PHILLIPS V. UNITED STATES,
312 U.S. 246, A CASE IN WHICH THE STATE OFFICIALS THREATENED TO ENGAGE
IN CONDUCT WHICH STATE LAW COULD NOT REASONABLY BE CONSTRUED TO
AUTHORIZE.  THE COMPLAINANTS IN THIS CASE SOUGHT INTERLOCUTORY AND
PERMANENT INJUNCTIONS AGAINST "THE ENFORCEMENT, OPERATION, OR
EXECUTION" OF A "STATUTE OF A STATE"; THEY SOUGHT TO RESTRAIN THE
ACTION OF OFFICERS "OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION OF
SUCH STATUTE"; AND THEIR ATTACK WAS BASED ENTIRELY "UPON THE GROUND OF
THE UNCONSTITUTIONALITY OF SUCH STATUTE." 

SINCE THERE WAS SUCH COMPLETE SATISFACTION OF THE CONDITIONS WHICH
MAKE SEC. 266 APPLICABLE, THE CAUSE WAS A PROPER ONE FOR A THREE-JUDGE
COURT AND APPEAL DID NOT LIE TO THE CIRCUIT COURT OF APPEALS.  BUT A
DIRECTION BY US TO THE CIRCUIT COURT OF APPEALS TO DISMISS THE APPEAL
WHICH THE PETITIONERS BROUGHT TO IT WOULD, WITHOUT MORE, TERMINATE THE
LITIGATION.  FOR THE TIME WITHIN WHICH A DIRECT APPEAL MIGHT HAVE BEEN
BROUGHT TO THIS COURT UNDER SEC. 266 HAS ELAPSED.  IN THE PRESENT
CIRCUMSTANCES, HOWEVER, WE THINK THE PETITIONERS' RIGHT TO SUCH AN
APPEAL SHOULD BE PRESERVED.  CF. PHILLIPS V. UNITED STATES, SUPRA,
254.  THE JUDGMENT BELOW IS THEREFORE VACATED AND THE CAUSE REMANDED TO
THE DISTRICT COURT FOR THE ENTRY OF A FRESH DECREE, FROM WHICH A TIMELY
APPEAL MAY BE TAKEN IF THE PETITIONERS SO DESIRE.  IT IS SO ORDERED. 

FN1  CODE OF LAWS OF SOUTH CAROLINA (1932) VOL. II, SECS. 2527-2557. 

FN2  28 U.S.C. SEC. 380.  THIS SECTION PROVIDES IN PART:  "NO
INTERLOCUTORY INJUNCTION SUSPENDING OR RESTRAINING THE ENFORCEMENT,
OPERATION, OR EXECUTION OF ANY STATUTE OF A STATE BY RESTRAINING THE
ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT OR EXECUTION OF
SUCH STATUTE  ...  SHALL BE ISSUED OR GRANTED  ...  UNLESS THE
APPLICATION FOR THE SAME SHALL BE PRESENTED TO  ...  AND SHALL BE HEARD
AND DETERMINED BY THREE JUDGES, OF WHOM AT LEAST ONE SHALL BE A JUSTICE
OF THE SUPREME COURT OR A CIRCUIT JUDGE, AND THE OTHER TWO MAY BE
EITHER CIRCUIT OR DISTRICT JUDGES, AND UNLESS A MAJORITY OF SAID THREE
JUDGES SHALL CONCUR IN GRANTING SUCH APPLICATION.  ...  AN APPEAL MAY
BE TAKEN DIRECT TO THE SUPREME COURT OF THE UNITED STATES FROM THE
ORDER GRANTING OR DENYING  ...  AN INTERLOCUTORY INJUNCTION IN SUCH
CASE." 

FN3  THERE WAS A STIPULATION BETWEEN THE PARTIES THAT IF THE
COMPLAINANTS SHOULD PREVAIL WITH RESPECT TO THE POST EXCHANGES AT FORT
JACKSON, THE RELIEF GRANTED SHOULD BE APPLICABLE TO CERTAIN OTHER POST
EXCHANGES, SHIPS' STORES, AND OFFICERS' CLUBS.  BOTH COURTS BELOW
PROCEEDED ON THE ASSUMPTION, WHICH WE ACCEPT HERE, THAT ALL OF THESE
ORGANIZATIONS WERE LOCATED IN "FEDERAL AREAS."  TO THIS EXTENT, IF ANY,
THAT THIS ASSUMPTION IS INCORRECT, PUBLIC ACT NO. 819(54 STAT. 1059)
HAS NO RELEVANCE WHATSOEVER. 
..END :













BRILLHART V. EXCESS INS. CO., 316 U.S. 491 


NO. 772.  ARGUED APRIL 8, 1942.  - DECIDED JUNE 1, 1942.  - 121 F.2D
776, REVERSED. 


BEFORE DISMISSING A SUIT BROUGHT UNDER THE FEDERAL DECLARATORY
JUDGMENTS ACT AND PRESENTING ONLY LOCAL QUESTIONS, UPON THE GROUND THAT
ANOTHER SUIT INVOLVING THE SAME SUBJECT MATTER AND BETWEEN THE SAME
PARTIES IS PENDING IN A STATE COURT, THE FEDERAL COURT MUST DETERMINE
IN THE FIRST INSTANCE WHETHER THE CLAIMS SET UP BY THE PLAINTIFF HAVE
BEEN FORECLOSED BY LOCAL LAW, OR CAN ADEQUATELY BE TESTED IN THE SUIT
IN THE STATE COURT.  P. 495. 

BRILLHART, ADMINISTRATOR, V. EXCESS INSURANCE COMPANY OF AMERICA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 314 U.S. 606, TO REVIEW A DECREE WHICH REVERSED A DECREE
OF THE DISTRICT COURT DISMISSING A BILL FILED UNDER THE FEDERAL
DECLARATORY JUDGMENTS ACT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE EXCESS INSURANCE COMPANY OF AMERICA, THE RESPONDENT HERE, BROUGHT
THIS SUIT FOR A DECLARATORY JUDGMENT TO DETERMINE ITS RIGHTS UNDER A
REINSURANCE AGREEMENT MADE IN 1932 WITH THE CENTRAL MUTUAL INSURANCE
COMPANY OF CHICAGO, ILLINOIS.  BY THAT CONTRACT THE RESPONDENT AGREED
TO REIMBURSE CENTRAL, WITHIN SPECIFIED LIMITS, FOR ANY "ULTIMATE NET
LOSS" (DEFINED AS "THE SUM ACTUALLY PAID IN CASH IN SETTLEMENT OF
LOSSES") SUSTAINED BY CENTRAL UNDER AUTOMOBILE PUBLIC LIABILITY
POLICIES THEREAFTER TO BE ISSUED.  CENTRAL UNDERTOOK TO NOTIFY THE
RESPONDENT OF ANY ACCIDENT THAT MIGHT BE COVERED BY THE REINSURANCE
AGREEMENT.  IN 1934, CENTRAL ISSUED A PUBLIC LIABILITY POLICY TO COOPER
JARRETT, INC. LATER IN THAT YEAR, THE PETITIONER'S DECEDENT WAS KILLED
BY A TRUCK LEASED BY COOPER-JARRETT, INC., AND SUIT WAS BROUGHT AGAINST
THE LATTER IN A MISSOURI STATE COURT.  CENTRAL REFUSED TO DEFEND THE
SUIT, HOWEVER, CLAIMING THAT THE POLICY DID NOT COVER THE ACCIDENT. 

WHILE THE SUIT WAS PENDING, BOTH CENTRAL AND COOPER-JARRETT, INC.,
ENCOUNTERED FINANCIAL DIFFICULTIES.  BY ORDER OF AN ILLINOIS STATE
COURT, CENTRAL WAS LIQUIDATED AND ALL CLAIMS AGAINST IT BARRED.  COOPER
JARRETT, INC., FILED A PETITION FOR REORGANIZATION UNDER SEC. 77B IN
THE MISSOURI FEDERAL DISTRICT COURT, AND THE FINAL DECREE IN THAT
PROCEEDING DISCHARGED IT FROM ANY JUDGMENT THAT HAD BEEN OR MIGHT BE
OBTAINED BY THE PETITIONER.  COOPER-JARRETT, INC., HAVING ABANDONED
DEFENSE OF THE SUIT, THE PETITIONER OBTAINED A DEFAULT JUDGMENT OF
$20,000 AGAINST IT ON APRIL 22, 1939, AND SUBSEQUENTLY INSTITUTED
GARNISHMENT PROCEEDINGS AGAINST CENTRAL IN A MISSOURI STATE COURT. 
BEING UNABLE TO RECOVER ANY PART OF THE JUDGMENT FROM EITHER COOPER
JARRETT, INC., OR CENTRAL, THE PETITIONER ON MAY 29, 1940, MADE THE
RESPONDENT A PARTY TO THE GARNISHMENT PROCEEDING THROUGH SERVICE ON THE
MISSOURI SUPERINTENDENT OF INSURANCE. 

BUT, IN THE MEANTIME, THE RESPONDENT HAD FILED THIS SUIT FOR A
DECLARATORY JUDGMENT IN THE FEDERAL DISTRICT COURT FOR KANSAS.  ITS
BILL SHOWED DIVERSITY OF THE PARTIES' CITIZENSHIP AND THE REQUISITE
JURISDICTIONAL AMOUNT.  IT ALLEGED, INTER ALIA, THAT, WHEN THE BILL IN
THE FEDERAL SUIT WAS FILED, THE RESPONDENT WAS NOT A PARTY TO THE
GARNISHMENT PROCEEDING IN THE STATE COURT; THAT, IN VIOLATION OF THE
TERMS OF THE REINSURANCE AGREEMENT, CENTRAL HAD NEVER NOTIFIED THE
RESPONDENT EITHER OF THE ACCIDENT RESULTING IN THE DEATH OF THE
PETITIONER'S DECEDENT OR OF THE SUIT BROUGHT AGAINST COOPER-JARRETT,
INC.; THAT THE RESPONDENT'S ONLY OBLIGATION UNDER THE REINSURANCE
AGREEMENT WAS TO INDEMNIFY CENTRAL AGAINST LOSS FOR SUMS ACTUALLY PAID
IN CASH IN SETTLEMENT OF LOSSES FOR WHICH CENTRAL WAS LIABLE, AND,
SINCE CENTRAL HAD NEVER SATISFIED THE CLAIM AGAINST COOPER-JARRETT,
INC., THE RESPONDENT COULD NOT BE OBLIGATED IN ANY WAY UNDER THE
REINSURANCE AGREEMENT; THAT COOPER-JARRETT, INC., WAS NOT LIABLE TO THE
PETITIONER FOR THE DEATH OF HIS DECEDENT; THAT, EVEN IF IT WERE,
CENTRAL WAS OBLIGATED TO DEFEND THE SUIT, AND ITS FAILURE TO DO SO
DISCHARGED THE RESPONDENT OF ANY LIABILITY UNDER THE REINSURANCE
AGREEMENT; THAT, EVEN IF IT WERE ORIGINALLY LIABLE, THE DISCHARGE OF
CENTRAL AND COOPER-JARRETT, INC., HAD THE EFFECT OF RELEASING THE
RESPONDENT; AND THAT, IN ANY EVENT, THE DEFAULT JUDGMENT AGAINST COOPER
JARRETT, INC., HAD BEEN FRAUDULENTLY OBTAINED. 

THE PETITIONER MOVED TO DISMISS THE SUIT, PRINCIPALLY ON THE GROUND
THAT THE ISSUES INVOLVED IN THE SUIT COULD NOW BE DECIDED IN THE
GARNISHMENT PROCEEDING PENDING IN THE MISSOURI STATE COURT.  THE
DISTRICT COURT DISMISSED THE BILL, APPARENTLY BECAUSE OF A RELUCTANCE
TO PROLONG THE LITIGATION, FN1  WITHOUT CONSIDERING WHETHER THE CLAIMS
ASSERTED BY THE RESPONDENT COULD, UNDER MISSOURI LAW, BE RAISED IN THE
PENDING GARNISHMENT PROCEEDING.  THE CIRCUIT COURT OF APPEALS HELD THAT
DISMISSAL OF THE SUIT WAS AN ABUSE OF DISCRETION, BUT, INSTEAD OF
REMITTING THE CAUSE FOR A PROPER EXERCISE OF THE DISTRICT COURT'S
DISCRETION, REVERSED THE JUDGMENT WITH DIRECTIONS THAT THE DISTRICT
COURT PROCEED TO A DETERMINATION ON THE MERITS.  121 F.2D 776.  IN VIEW
OF THE IMPORTANT QUESTION AFFECTING THE INTER-RELATIONSHIP OF THE STATE
AND FEDERAL COURTS IN THE ADMINISTRATION OF THE FEDERAL DECLARATORY
JUDGMENTS ACT, 28 U.S.C. SEC. 400, WE BROUGHT THE CASE HERE.  314 U.S.
606. 

ALTHOUGH THE DISTRICT COURT HAD JURISDICTION OF THE SUIT UNDER THE
FEDERAL DECLARATORY JUDGMENTS ACT, IT WAS UNDER NO COMPULSION TO
EXERCISE THAT JURISDICTION.  THE PETITIONER'S MOTION TO DISMISS THE
BILL WAS ADDRESSED TO THE DISCRETION OF THE COURT.  AETNA CASUALTY CO.
V. QUARLES, 92 F.2D 321; MARYLAND CASUALTY CO. V. CONSUMERS FINANCE
SERVICE, 101 F.2D 514; AMERICAN AUTOMOBILE INS. CO. V. FREUNDT, 103
F.2D 613; SEE NOTE, 51 YALE L.J. 511.  COMPARE CANADA MALTING CO. V.
PATERSON CO., 285 U.S. 413, 422-23; DOUGLAS V. NEW YORK, N.H. & H.R.
CO., 279 U.S. 377.  THE MOTION RESTED UPON THE CLAIM THAT, SINCE
ANOTHER PROCEEDING WAS PENDING IN A STATE COURT IN WHICH ALL THE
MATTERS IN CONTROVERSY BETWEEN THE PARTIES COULD BE FULLY ADJUDICATED,
A DECLARATORY JUDGMENT IN THE FEDERAL COURT WAS UNWARRANTED.  THE
CORRECTNESS OF THIS CLAIM WAS CERTAINLY RELEVANT IN DETERMINING WHETHER
THE DISTRICT COURT SHOULD ASSUME JURISDICTION AND PROCEED TO DETERMINE
THE RIGHTS OF THE PARTIES.  ORDINARILY IT WOULD BE UNECONOMICAL AS WELL
AS VEXATIOUS FOR A FEDERAL COURT TO PROCEED IN A DECLARATORY JUDGMENT
SUIT WHERE ANOTHER SUIT IS PENDING IN A STATE COURT PRESENTING THE SAME
ISSUES, NOT GOVERNED BY FEDERAL LAW, BETWEEN THE SAME PARTIES. 
GRATUITOUS INTERFERENCE WITH THE ORDERLY AND COMPREHENSIVE DISPOSITION
OF A STATE COURT LITIGATION SHOULD BE AVOIDED. 

WHERE A DISTRICT COURT IS PRESENTED WITH A CLAIM SUCH AS WAS MADE
HERE, IT SHOULD ASCERTAIN WHETHER THE QUESTIONS IN CONTROVERSY BETWEEN
THE PARTIES TO THE FEDERAL SUIT, AND WHICH ARE NOT FORECLOSED UNDER THE
APPLICABLE SUBSTANTIVE LAW, CAN BETTER BE SETTLED IN THE PROCEEDING
PENDING IN THE STATE COURT.  THIS MAY ENTAIL INQUIRY INTO THE SCOPE OF
THE PENDING STATE COURT PROCEEDING AND THE NATURE OF DEFENSES OPEN
THERE.  THE FEDERAL COURT MAY HAVE TO CONSIDER WHETHER THE CLAIMS OF
ALL PARTIES IN INTEREST CAN SATISFACTORILY BE ADJUDICATED IN THAT
PROCEEDING, WHETHER NECESSARY PARTIES HAVE BEEN JOINED, WHETHER SUCH
PARTIES ARE AMENABLE TO PROCESS IN THAT PROCEEDING, ETC. 

WE DO NOT NOW ATTEMPT A COMPREHENSIVE ENUMERATION OF WHAT IN OTHER
CASES MAY BE REVEALED AS RELEVANT FACTORS GOVERNING THE EXERCISE OF A
DISTRICT COURT'S DISCRETION.  IT IS ENOUGH THAT IT APPEARS FROM THE
RECORD BEFORE US THAT THE DISTRICT COURT DID NOT CONSIDER WHETHER,
UNDER APPLICABLE LOCAL LAW, THE CLAIMS SOUGHT TO BE ADJUDICATED BY THE
RESPONDENT IN THIS SUIT FOR A DECLARATORY JUDGMENT HAD EITHER BEEN
FORECLOSED BY MISSOURI LAW OR COULD ADEQUATELY BE TESTED IN THE
GARNISHMENT PROCEEDING PENDING IN THE MISSOURI STATE COURT.  THIS WAS A
MATTER FOR DETERMINATION, CERTAINLY IN THE FIRST INSTANCE, BY THE
DISTRICT COURT.  NOR DID THE CIRCUIT COURT OF APPEALS, IN REVERSING THE
JUDGMENT OF THE DISTRICT COURT, PURPORT TO FIND THAT UNDER CONTROLLING
MISSOURI LAW THE ISSUES SET UP BY THE RESPONDENT IN THIS SUIT COULD NOT
BE CONTESTED IN THE PENDING MISSOURI PROCEEDING.  FN2 

WHETHER AND UNDER WHAT CIRCUMSTANCES A REINSURER CAN BE REACHED
THROUGH A JUDGMENT AGAINST THE INSURED ARE QUESTIONS OF LOCAL LAW. 
WHETHER THE JUDGMENT AGAINST COOPER-JARRETT, INC., COULD SERVE AS A
BASIS FOR GARNISHMENT PROCEEDINGS AGAINST THE RESPONDENT WAS THEREFORE
A MATTER OF MISSOURI LAW.  BUT THAT ISSUE WAS NEVER TENDERED BEFORE THE
KANSAS DISTRICT COURT; THAT COURT DID NOT PROFESS TO PASS UPON IT, AND
THE CIRCUIT COURT OF APPEALS, IN REVERSING THE DECREE OF DISMISSAL,
SHED NO LIGHT UPON IT. 

IF THE LOWER COURTS HAD FOUND THAT UNDER MISSOURI LAW THE
RESPONDENT'S CLAIMS COULD NOT ADEQUATELY BE TESTED IN THE PENDING
GARNISHMENT PROCEEDING, OR THAT MISSOURI LAW ON THE SUBJECT WAS
DOUBTFUL, AND UPON THE BASIS OF SUCH A FINDING HAD TAKEN JURISDICTION
OF THIS SUIT FOR A DECLARATORY JUDGMENT, WE WOULD NOT DISTURB SUCH A
FINDING.  BUT NO SUCH FINDING CAN BE EXTRACTED FROM THIS RECORD.  AND
IT IS NOT FOR US TO ATTEMPT TO PRONOUNCE INDEPENDENTLY UPON MISSOURI
LAW.  TO DO SO WOULD BE TO DISREGARD THE LIMITATIONS INHERENT IN OUR
APPELLATE JURISDICTION.  IT IS NOT OUR FUNCTION TO FIND OUR WAY THROUGH
A MAZE OF LOCAL STATUTES AND DECISIONS ON SO TECHNICAL AND SPECIALIZED
A SUBJECT AS THE SCOPE OF A GARNISHMENT PROCEEDING IN A PARTICULAR
JURISDICTION.  FOR ONE THING, IT IS TOO EASY TO LOSE OUR WAY.  FOR
EXAMPLE, THERE ARE NUMEROUS DECISIONS OF THE SUPREME COURT OF MISSOURI
WHICH DECLARE A GENERAL PRINCIPLE THAT THE GARNISHEE CAN ASSERT ANY
DEFENSES IN A GARNISHMENT PROCEEDING THAT WOULD BE OPEN IN A SUIT
BROUGHT AGAINST HIM BY THE JUDGMENT DEBTOR.  E.G., WEIL V. TYLER, 38
MO. 545, 547; MCDERMOTT V. DONEGAN, 44 MO. 85, 89; SHEEDY V. SECOND
NATIONAL BANK, 62 MO. 17, 24.  WE DO NOT CITE THESE DECISIONS TO SHOW
THAT THE RESPONDENT'S CLAIMS IN THIS CASE COULD ADEQUATELY BE TESTED IN
THE GARNISHMENT PROCEEDING PENDING IN THE MISSOURI STATE COURT.  FOR
THE CRUX OF OUR RULING IS THAT WE SHOULD NOT BE CALLED UPON TO MAKE
SUCH A DETERMINATION IN THE FIRST INSTANCE.  BUT THESE UTTERANCES OF
THE MISSOURI SUPREME COURT DO SERVE AS A WARNING THAT SCATTERED
OPINIONS OF AN INTERMEDIATE APPELLATE COURT OF A STATE MAY CONVEY ONLY
DOUBTS AND CONFUSION TO ONE INEXPERT IN THE LAW OF THAT STATE AND YET
BE ENTIRELY CLEAR AND CONSISTENT WHEN PLACED IN THE MOSAIC OF THE WHOLE
LAW OF THAT STATE.  COMPARE MR. JUSTICE BRANDEIS DISSENTING IN RAILROAD
COMMISSION V. LOS ANGELES RY. CORP., 280 U.S. 145, 164.  WE ARE NOT
CONCERNED HERE WITH THE BURDEN OF PROOF IN ESTABLISHING FACTS AS TO
WHICH ONLY THE PARTIES TO A PRIVATE LITIGATION ARE INTERESTED.  WE ARE
CONCERNED RATHER WITH THE DUTY OF THE FEDERAL COURTS TO DETERMINE LEGAL
ISSUES GOVERNING THE PROPER EXERCISE OF THEIR JURISDICTION. 

THE CAUSE SHOULD BE REMANDED TO THE DISTRICT COURT IN ORDER THAT IT
MAY PROPERLY EXERCISE ITS DISCRETION IN PASSING UPON THE PETITIONER'S
MOTION TO DISMISS THIS SUIT.  REVERSED. 

FN1 IT IS DIFFICULT TO ASCERTAIN FROM THE RECORD THE PRECISE GROUNDS
FOR THE DISTRICT COURT'S ACTION.  SOME LIGHT IS SHED BY THE FOLLOWING
COLLOQUY, WHICH OCCURRED AT THE CONCLUSION OF THE ARGUMENT UPON THE
MOTION TO DISMISS THE BILL: 

"THE COURT:  AS I UNDERSTAND, THE MERITS OF THE CASE WITH REFERENCE
TO THE DEATH OF THIS DECEDENT HAVE NEVER BEEN TRIED? 

"MR. WOODS (COUNSEL FOR THE RESPONDENT):  THAT IS CORRECT, AND IT IS
ALMOST SIX YEARS NOW. 

"THE COURT:  WELL, I DON'T THINK THAT THIS COURT WILL INTERFERE WITH
THAT.  THE CASE WILL BE DISMISSED.  YOU MAY DRAW A JOURNAL SHOWING THAT
AFTER THIS LONG LAPSE OF TIME, AFTER YOUR LITIGATION IN MISSOURI, THAT
THIS COURT FEELS IN ITS DISCRETION THAT IT OUGHT NOT TO INTERFERE WITH
THAT LITIGATION IN ANY WAY." 

FN2  THE OPINION OF THE CIRCUIT COURT OF APPEALS CONTAINS A SINGLE
SENTENCE WHICH, IF READ WITHOUT REFERENCE TO ITS CONTEXT, MIGHT APPEAR
TO BE SUCH A FINDING:  "THE ISSUES IN THE GARNISHMENT ACTION COULD NOT
DETERMINE THE LIABILITY OF APPELLANT (THE RESPONDENT HERE) UNDER ITS
REINSURANCE CONTRACT."  121 F.2D AT 778.  BUT, AS WE READ ITS OPINION,
THE COURT BELOW CLEARLY WAS REFERRING ONLY TO THE GARNISHMENT ACTION
AGAINST CENTRAL BEFORE THE RESPONDENT WAS JOINED AS A PARTY.  OF
COURSE, AT THAT TIME THE RESPONDENT WOULD HAVE NO OPPORTUNITY TO RAISE
IN THE GARNISHMENT PROCEEDING THE CLAIMS WHICH IT ASSERTED IN THE
FEDERAL SUIT FOR A DECLARATORY JUDGMENT.  BUT WHEN THE PETITIONER'S
MOTION TO DISMISS THE FEDERAL SUIT WAS FILED, THE RESPONDENT HAD BEEN
MADE A PARTY TO THE GARNISHMENT PROCEEDING.  AND, AS ITS OPINION SHOWS,
THE CIRCUIT COURT OF APPEALS DID NOT FIND THAT UNDER MISSOURI LAW THE
CLAIMS RAISED BY THE RESPONDENT IN THE FEDERAL SUIT, WHICH WERE
GOVERNED BY MISSOURI LAW AND WERE NOT PREVIOUSLY FORECLOSED BY IT,
COULD NOT BE ADJUDICATED IN THE GARNISHMENT PROCEEDING AFTER THE
RESPONDENT HAD BEEN JOINED AS A PARTY. 

MR. JUSTICE DOUGLAS, CONCURRING: 

IF WE HAD HERE ONLY THE QUESTION AS TO WHETHER THE ISSUES FRAMED BY
RESPONDENT IN THIS SUIT COULD BE LITIGATED IN THE STATUTORY GARNISHMENT
PROCEEDING IN MISSOURI, I WOULD AGREE WITH THE VIEWS EXPRESSED BY THE
CHIEF JUSTICE.  BUT THERE IS THE FURTHER, AND FOR ME THE CONTROLLING,
QUESTION WHETHER, AS STATED BY THE MAJORITY, THE CLAIMS RAISED BY
RESPONDENT HAD BEEN "PREVIOUSLY FORECLOSED" UNDER MISSOURI LAW.  IT IS
A FAIR INFERENCE FROM THIS RECORD THAT RESPONDENT, LIKE CENTRAL,
RECEIVED NOTICE AND HAD AN OPPORTUNITY TO DEFEND THE SUIT BROUGHT
AGAINST COOPER-JARRETT, ALTHOUGH ALL OF THE ATTENDANT CIRCUMSTANCES DO
NOT CLEARLY APPEAR.  UNDER MISSOURI LAW THE GENERAL RULE SEEMS TO BE
THAT NOTICE AND OPPORTUNITY TO DEFEND BINDS THE REINSURER ON JUDGMENTS
AGAINST THE REASSURED.  SEE E.G. STRONG V. PHOENIX INS. CO., 62 MO.
289; GANTT V. AMERICAN CENTRAL INS. CO., 68 MO. 503; CITY OF ST. JOSEPH
V. UNION RY. CO., 116 MO. 636, 643, 22 S.W. 794; FINKLE V. WESTERN
AUTO.  INS.  CO., 224 MO. APP. 285, 300, 26 S.W.2D 843.  BY STATUTE (6
MO. STAT. ANN. SECS. 5898, 5899) THE LIABILITY OF THE INSURANCE COMPANY
BECOMES ABSOLUTE WHEN LOSS OCCURS; AND JUDGMENT AGAINST THE INSURED
ESTABLISHES PRIVITY BETWEEN THE INJURED PARTY AND THE INSURER.  SEE
SCHOTT V. AUTO INS. UNDERWRITERS, 326 MO. 92, 31 S.W.2D 7; LAJOIE V.
CENTRAL WEST CASUALTY CO., 228 MO. APP. 701, 71 S.W.2D 803; TAVERNO V.
AMERICAN AUTO INS. CO., 232 MO. APP. 820, 112 S.W.2D 941.  THE PROBLEM
IS WHETHER BY REASON OF THE INSURER'S LIABILITY UNDER THE POLICY AND
THE STATUTE, AND RESPONDENT'S LIABILITY UNDER ITS REINSURANCE CONTRACT
(SEE E.G. HOMAN V. EMPLOYERS REINSURANCE CORP., 345 MO. 650, 136 S.W.2D
289), NOTICE AND OPPORTUNITY TO DEFEND THE EARLIER SUIT WERE SUFFICIENT
(SCHOTT V. AUTO INS. UNDERWRITERS, SUPRA) TO BIND RESPONDENT AS
REINSURER.  RESPONDENT'S CHARGES OF FRAUD CENTER ON THE ADEQUACY OF THE
NOTICE WHICH IT RECEIVED AND THE FAILURE OF THE INSURED AND THE INSURER
TO DEFEND.  THAT SEEMS TO BE BUT ONE PHASE OF THE QUESTION WHETHER
UNDER MISSOURI LAW RESPONDENT WAS BOUND BY THE JUDGMENT IN THE EARLIER
SUIT. 

THE EXERCISE OF JURISDICTION UNDER THE FEDERAL DECLARATORY JUDGMENTS
ACT IS CERTAINLY NOT COMPULSORY; IT IS DISCRETIONARY.  BORCHARD,
DECLARATORY JUDGMENTS (2D ED.), P. 312.  IF IT MAY FAIRLY BE SAID UNDER
MISSOURI LAW THAT RESPONDENT WAS BOUND BY ITS FAILURE OR REFUSAL TO
DEFEND THE EARLIER SUIT AFTER NOTICE, THEN IT WOULD CLEARLY BE AN ABUSE
OF DISCRETION FOR THE DISTRICT COURT TO TAKE OR AT LEAST TO RETAIN
JURISDICTION OF THE CAUSE IN CASE IT APPEARED AFTER A HEARING ON THAT
ISSUE THAT RESPONDENT WAS SO BOUND. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

I THINK THE DECISION OF THE CIRCUIT COURT OF APPEALS WAS RIGHT AND
SHOULD BE AFFIRMED. 

RESPONDENT, REINSURER OF AN AUTOMOBILE PUBLIC LIABILITY INSURANCE
POLICY, HAS BEEN MADE A PARTY TO A GARNISHMENT PROCEEDING INSTITUTED
UNDER THE MISSOURI STATUTES BY PETITIONER, WHO HAS SECURED A MISSOURI
DEFAULT JUDGMENT UPON A LIABILITY OF THE INSURED SAID TO BE COVERED BY
THE POLICY.  BY THIS SUIT BROUGHT IN THE FEDERAL DISTRICT COURT FOR
KANSAS, RESPONDENT NOW SEEKS AMONG OTHER THINGS TO SET ASIDE THE
JUDGMENT, SO FAR AS IT ESTABLISHES LIABILITY AGAINST THE INSURER, AS
FRAUDULENTLY OBTAINED. 

RESPONDENT'S BILL OF COMPLAINT STATES A CAUSE OF ACTION WHICH IT IS
ENTITLED TO HAVE ADJUDICATED IN SOME COURT.  THE CONSIDERATIONS
SUGGESTED BY MR. JUSTICE DOUGLAS ARE OF COURSE RELEVANT TO THE MERITS
OF RESPONDENT'S CASE, AND SHOULD BE TRIED WITH OTHER ISSUES WHEREVER
AND WHENEVER THEY ARE TO BE TRIED.  AS THE DISTRICT COURT BELOW HAD
JURISDICTION - AND AS NO OTHER REASON IS ADVANCED FOR DECLINING
JURISDICTION - IT WAS PLAINLY ITS DUTY TO HEAR AND DECIDE ALL THE
ISSUES NECESSARY FOR DISPOSITION OF THE CASE UNLESS IT WAS MADE TO
APPEAR WITH REASONABLE CERTAINTY THAT THE ISSUES COULD BE ADJUDICATED
IN THE MISSOURI COURTS.  PETITIONER ASSUMED THAT BURDEN BY HIS MOTION
IN THE DISTRICT COURT FOR AN ORDER DISMISSING THE SUIT AND REMITTING
RESPONDENT TO THE STATE COURTS.  THE DATA, INCLUDING STATEMENTS OF THE
FACTS SPREAD UPON THE RECORD, WHICH HE SUBMITTED IN SUPPORT OF THE
MOTION HAVE NOW RECEIVED THE CONSIDERATION OF THREE COURTS.  NONE OF
THEM HAS SAID, AND IN THE CIRCUMSTANCES OF THIS CASE NO FEDERAL COURT
COULD SAY, EITHER WITH BINDING AUTHORITY OR WITH REASONABLE CERTAINTY,
THAT RESPONDENT CAN LITIGATE IN THE MISSOURI COURTS ITS ASSERTED RIGHT
TO SET ASIDE PETITIONER'S JUDGMENT FOR FRAUD.  PETITIONER, WHO IS NOT A
CITIZEN OR RESIDENT OF MISSOURI AND NOT SUBJECT TO THE JURISDICTION OF
ITS COURTS UNLESS HE VOLUNTARILY APPEARS IN AN ACTION THERE, HAS NOT
SAID, AND IN THIS COURT HAS CAREFULLY AVOIDED SAYING, THAT HE WOULD
APPEAR IN ANY INDEPENDENT SUIT BROUGHT IN THE MISSOURI COURTS TO ATTACK
THE JUDGMENT. 

FURTHER, IT AFFIRMATIVELY APPEARS THAT THE QUESTION WHETHER
RESPONDENT CAN LITIGATE ITS PRESENT CAUSE OF ACTION IN THE STATUTORY
GARNISHMENT PROCEEDING IN MISSOURI IS AT BEST NOT FREE FROM DOUBT.  THE
MISSOURI GARNISHMENT STATUTES DO NOT DEAL EXPRESSLY WITH THE NATURE OF
THE ISSUES THAT CAN BE RAISED IN A GARNISHMENT PROCEEDING.  MISSOURI
REVISED STATUTES, 1939, SECS. 1560-1589.  BUT THE MISSOURI INTERMEDIATE
APPELLATE COURTS SEEM TO AGREE THAT IN SUCH A PROCEEDING THE GARNISHEE
CANNOT CHALLENGE THE VALIDITY AND EFFECTIVENESS OF THE JUDGMENT SAVE
FOR WANT OF JURISDICTION OF THE COURT WHICH RENDERED IT.  POTTER V.
WHITTEN, 161 MO. APP. 118, 131-32, 142 S.W. 453; NEVATT V. SPRINGFIELD
NORMAL SCHOOL, 79 MO. APP. 198, 201; REID, MURDOCK & CO. V. MERCURIO,
91 MO. APP. 673, 678.  THE MISSOURI SUPREME COURT HAS NEVER DISAPPROVED
THESE DECISIONS. 

THE COURT OF APPEALS BELOW IN DECIDING THAT THE CAUSE SHOULD BE
LITIGATED IN THE PRESENT SUIT DECLARED, 121 F.2D AT 778: 

"A FEDERAL COURT MAY NOT REFUSE TO ASSUME JURISDICTION MERELY ON THE
GROUND THAT ANOTHER REMEDY IS AVAILABLE OR BECAUSE ANOTHER SUIT IS
PENDING, IF THE CONTROVERSY BETWEEN THE PARTIES WILL NOT NECESSARILY BE
DETERMINED THEREIN.  MARYLAND CASUALTY CO. V. CONSUMERS FINANCE
SERVICE, INC., 101 F.2D 514." 

HERE IT IS EVIDENT, DESPITE THE DILIGENCE OF COUNSEL, THAT THE
ABILITY OF RESPONDENT TO ASSERT ITS CAUSE OF ACTION IN THE MISSOURI
GARNISHMENT PROCEEDING IS UNCERTAIN AND MUST REMAIN SO UNTIL THE
SUPREME COURT OF MISSOURI HAS SPOKEN.  JUST HOW RESPONDENT'S ABILITY TO
MAINTAIN ITS SUIT IN MISSOURI CAN BE MADE MORE CERTAIN OR EVEN
REASONABLY PROBABLE, OR HOW THE CAUSE OF JUSTICE WILL BE ADVANCED BY
COMPELLING RESPONDENT TO BEGIN OVER AGAIN THE NEARLY THREE YEARS'
COURSE OF LITIGATION WHICH IT HAS NOW TRAVELED, IS NOT REVEALED.  THE
CONCEDEDLY ERRONEOUS DECISION OF THE DISTRICT COURT HAS BEEN REVERSED
BY THE CIRCUIT COURT OF APPEALS.  UNLESS THIS COURT IS NOW PREPARED TO
SAY THAT RESPONDENT'S ABILITY TO MAINTAIN THE SUIT IN THE STATE COURT
IS FREE FROM DOUBT, WE SHOULD LEAVE THE JUDGMENT UNDISTURBED AND NOT
DENY TO RESPONDENT THE BENEFIT OF THE FEDERAL JURISDICTION WHICH
CONGRESS HAS SANCTIONED.  ONE OF THE CHIEF PURPOSES OF CREATING THE
DIVERSITY OF CITIZENSHIP JURISDICTION WAS TO AFFORD TO SUITORS AN
UNCLOUDED OPPORTUNITY TO ASSERT THEIR RIGHTS IN THE FEDERAL COURTS WHEN
THE EXIGENCIES OF STATE COURT JURISDICTION OF SUBJECT MATTER OR
PARTIES, OR BOTH TOGETHER, AS IN THIS CASE, RENDER DOUBTFUL THEIR
ABILITY TO PROCEED IN THE STATE COURTS.  IN SUCH A CASE A SUITOR OUGHT
NOT TO BE PENALIZED, AS RESPONDENT PLAINLY IS, FOR INVOKING THE FEDERAL
JURISDICTION. 

THE MISSOURI LAW, IF NOT CONCLUSIVELY AGAINST THE ASSERTION OF THE
PRESENT CAUSE IN THE MISSOURI GARNISHMENT PROCEEDING, IS AT LEAST SO
DOUBTFUL THAT RESPONDENT OUGHT NOT TO BE COMPELLED TO SEEK THE FUTILE
PROPHECY OF THE DISTRICT COURT IN KANSAS AS TO HOW THE MISSOURI COURTS
WILL RESOLVE AN UNSETTLED POINT OF MISSOURI PRACTICE.  SINCE PETITIONER
HAS FAILED TO SUSTAIN HIS BURDEN OF SHOWING THAT THE CASE IS A PROPER
ONE FOR DISMISSAL, THE DISTRICT COURT SHOULD EXERCISE ITS JURISDICTION
BY PROCEEDING TO DETERMINE THE MERITS WITHOUT FURTHER DELAY.  IF THIS
LITIGATION IS EVER TO END, IT IS IMPORTANT FOR IT TO GET STARTED. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON JOIN IN THIS DISSENT. 
..END :



FAITOUTE CO. V. ASBURY PARK, 316 U.S. 502 


NO. 896.  ARGUED APRIL 28, 1942.  - DECIDED JUNE 1, 1942.  - 127 N.J.L.
239, 21 A.2D 796, AFFIRMED. 


UNDER THE NEW JERSEY MUNICIPAL FINANCE ACT, A PLAN FOR THE ADJUSTMENT
OR COMPOSITION OF THE CLAIMS OF CREDITORS OF AN INSOLVENT MUNICIPALITY
MAY BE MADE BINDING ON ALL CREDITORS, IF APPROVED BY THE MUNICIPALITY,
BY THE MUNICIPAL FINANCE COMMISSION, AND BY CREDITORS REPRESENTING 85
PER CENT OF THE INDEBTEDNESS AFFECTED, AND IF ADOPTED, UNDER PRESCRIBED
CONDITIONS, BY THE STATE SUPREME COURT.  AS APPLIED TO HOLDERS OF
DEFAULTED BONDS AND INTEREST COUPONS OF A MUNICIPALITY, WHO, UNDER AN
ADJUSTMENT DECREED BY THE STATE COURT, WERE OBLIGED TO CONVERT THEIR
BONDS INTO OTHERS BEARING A LOWER RATE OF INTEREST, HELD: 

1.  THE ACT IS NOT INOPERATIVE AS INCONSISTENT WITH THE BANKRUPTCY
POWER EXERCISED BY CONGRESS.  P. 507. 

2.  THE ACT DOES NOT EFFECT AN UNCONSTITUTIONAL IMPAIRMENT OF THE
OBLIGATION OF CONTRACTS.  P. 509. 

3.  THE QUESTION OF THE VALIDITY OF THE ACT AS APPLIED TO SECURED
CLAIMS, IS NOT INVOLVED AND NOT DECIDED.  P. 516. 

FAITOUTE IRON & STEEL CO. ET AL. V. CITY OF ASBURY PARK. 

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

APPEAL FROM A JUDGMENT AFFIRMING THE DISMISSAL, BY THE SUPREME COURT
OF NEW JERSEY, 19 N.J. MISC. 322, 19 A.2D 445, OF A SUIT TO RECOVER
UPON BONDS AND INTEREST COUPONS ISSUED BY THE MUNICIPALITY. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

A NEW JERSEY STATUTE, ADOPTED IN 1931, AUTHORIZED STATE CONTROL OVER
INSOLVENT MUNICIPALITIES.  BY A SUPPLEMENTARY LAW, ENACTED IN 1933, A
PLAN FOR ADJUSTMENT OF THE CLAIMS OF CREDITORS OF SUCH AN INSOLVENT
MUNICIPALITY COULD BE MADE BINDING UPON ALL CREDITORS.  THE QUESTION IS
WHETHER AN ADJUSTMENT SO AUTHORIZED BY A STATE IMPAIRS RIGHTS IN
VIOLATION OF THE CONSTITUTION OF THE UNITED STATES. 

THE CITY OF ASBURY PARK IS A SEASHORE RESORT WITH A RESIDENT
POPULATION OF 15,000.  IT PRESENTS A FAMILIAR PICTURE OF OPTIMISTIC AND
EXTRAVAGANT MUNICIPAL EXPANSION CAUGHT IN THE DESTRUCTIVE GRIP OF
GENERAL ECONOMIC DEPRESSION:  ELABORATE BEACHFRONT IMPROVEMENTS, COSTS
IN EXCESS OF ESTIMATES, DEFICITS NOT ANNUALLY MET BY TAXATION,
DECLINING REAL-ESTATE VALUES, INABILITY TO REFINANCE A
DISPROPORTIONATELY HEAVY LOAD OF SHORT-TERM OBLIGATIONS, AND,
INEVITABLY, DEFAULT.  ACCORDINGLY, IN JANUARY, 1935, AVAILING
THEMSELVES OF THE NEW JERSEY MUNICIPAL FINANCE ACT, CREDITORS APPLIED
TO THE SUPREME COURT OF NEW JERSEY TO PLACE THE STATE MUNICIPAL FINANCE
COMMISSION IN CONTROL OF THE CITY'S FINANCES. 

THE LEGISLATION WAS ENACTED "TO MEET THE PUBLIC EMERGENCY ARISING
FROM A DEFAULT IN THE PAYMENT OF MUNICIPAL OBLIGATIONS, AND THE
RESULTING IMPAIRMENT OF PUBLIC CREDIT," LAWS OF NEW JERSEY (1931), C.
340, SEC. 405.  IN BROAD TERMS, THE LEGISLATION, THROUGH COMBINED
ADMINISTRATIVE AND JUDICIAL ACTION, ADAPTED THE UNDERLYING PRINCIPLES
OF AN EQUITY RECEIVERSHIP TO THE SOLUTION OF THE PROBLEM OF INSOLVENT
MUNICIPALITIES.  BY A SUPPLEMENTING ACT, LAWS OF NEW JERSEY (1933), C.
331, A "PLAN OF ADJUSTMENT OR COMPOSITION OF THE CLAIMS OF ALL
CREDITORS" MAY BE SUBMITTED ON THEIR BEHALF TO THE SUPREME COURT OF THE
STATE.  IF APPROVED BY 85 PER CENT IN AMOUNT OF THE CREDITORS AND BY
THE MUNICIPALITY AND THE COMMISSION, SUCH PLAN OF ADJUSTMENT MAY BE
ADOPTED "IF THE COURT BY ITS JUSTICE DETERMINES (1) THAT THE
MUNICIPALITY IS UNABLE TO PAY IN FULL ACCORDING TO THEIR TERMS THE
CLAIMS PROPOSED TO BE ADJUSTED OR COMPOSED, AND PERFORM ITS PUBLIC
FUNCTIONS AND PRESERVE THE VALUE OF PROPERTY SUBJECT TO TAXATION, (2)
THAT THE ADJUSTMENT OR COMPOSITION IS SUBSTANTIALLY MEASURED BY THE
CAPACITY OF A MUNICIPALITY TO PAY, (3) THAT IT IS IN THE INTEREST OF
ALL THE CREDITORS AFFECTED THEREBY, AND (4) THAT IT IS NOT DETRIMENTAL
TO OTHER CREDITORS OF THE MUNICIPALITY."  THE PLAN CANNOT BE
AUTHORIZED, HOWEVER, IF IT INVOLVES ANY REDUCTION OF THE PRINCIPAL
AMOUNT OF ANY OUTSTANDING OBLIGATION.  ANY CREDITOR IS ENTITLED TO
APPEAR AND TO BE HEARD, BUT A PLAN WHICH IS SO AUTHORIZED BY THE COURT
IS BINDING UPON ALL CREDITORS WHETHER OR NOT THEY APPEAR, AND THE
SUBSTITUTION OF NEW OBLIGATIONS FOR OLD IN CARRYING OUT THE PLAN IS
MADE EFFECTIVE FROM THE DAY FIXED BY JUDICIAL ORDER.  TO EFFECTUATE
SUCH A PLAN, THE ACT PROVIDES FURTHER THAT THE COURT SHALL RETAIN
JURISDICTION AND "THEREAFTER NO CREDITOR WHOSE CLAIM IS INCLUDED IN
SUCH ADJUSTMENT OR COMPOSITION SHALL BE AUTHORIZED TO BRING ANY ACTION
OR PROCEEDING OF ANY KIND OR CHARACTER FOR THE ENFORCEMENT OF HIS CLAIM
EXCEPT WITH THE PERMISSION OF THE SUPREME COURT AND THEN ONLY TO
RECOVER AND ENFORCE THE RIGHTS GIVEN HIM BY THE ADJUSTMENT OR
COMPOSITION."  FN1 

PURSUANT TO THIS LEGISLATIVE SCHEME, THE CITY OF ASBURY PARK WAS ON
MARCH 7, 1935, PLACED UNDER THE CONTROL OF THE MUNICIPAL FINANCE
COMMISSION; ON FEBRUARY 1, 1936, A PLAN FOR THE REFUNDING OF ITS BONDED
DEBT WAS FILED IN THE STATE SUPREME COURT, AND THAT COURT TOOK
JURISDICTION OF THE PROCEEDINGS; THE PLAN, AS AMENDED, WAS APPROVED BY
THE COURT ON JULY 21, 1937; ON SEPTEMBER 28, 1937, IT WAS DULY APPROVED
BY THE MUNICIPAL FINANCE COMMISSION; ON APRIL 29, 1938, IT WAS
CONSENTED TO BY CREDITORS REPRESENTING "85 PER CENT IN AMOUNT OF THE
INDEBTEDNESS AFFECTED" BY THE PLAN; AND, ON JUNE 15, 1938, IT WAS PUT
INTO OPERATION.  THE PLAN PROVIDED FOR THE REFUNDING OF $10,750,000 OF
OUTSTANDING BONDS; THESE WERE TO BE EXCHANGED BY THE CONSENTING
CREDITORS FOR NEW BONDS TO BE ISSUED IN ACCORDANCE WITH THE TERMS OF
THE PLAN APPROVED BY THE COURT. 

THE APPELLANTS WERE HOLDERS OF DEFAULTED BONDS AND INTEREST COUPONS
ISSUED BY THE CITY OF ASBURY PARK IN 1929 AND 1930 - PRIOR, THEREFORE,
TO THE LEGISLATION WHICH AUTHORIZED THE PROCEEDINGS RESULTING IN THE
CHALLENGED REFUNDING SCHEME.  THE BONDS OF THE APPELLANTS WERE PART OF
THE $10,750,000 OF REFUNDED BONDS WHICH, UNDER THE ADJUSTMENT DECREED
BY THE COURT, COULD ONLY BE CONVERTED INTO NEW BONDS MATURING IN 1966
AND BEARING A LOWER RATE OF INTEREST THAN THE ORIGINAL BONDS.  DEEMING
THE ARRANGEMENT AUTHORIZED UNDER THE NEW JERSEY STATUTE TO BE VIOLATIVE
OF THE CONSTITUTION OF THE UNITED STATES, THE APPELLANTS BROUGHT THIS
SUIT FOR THE FACE VALUE OF THE OLD BONDS AND COUPONS.  THE SUPREME
COURT OF NEW JERSEY DISMISSED THE SUIT, 19 N.J. MISC. 322, 19 A.2D 445;
THE COURT OF ERRORS AND APPEALS AFFIRMED THE DISMISSAL, 127 N.J.L. 239,
21 A.2D 796; AND THE CASE IS HERE ON APPEAL UNDER SEC. 237(A) OF THE
JUDICIAL CODE, AS AMENDED, 28 U.S.C. SEC. 344. 

IF THE NEW JERSEY LEGISLATION WHICH IS THE FOUNDATION OF THE
REFUNDING PLAN FOR THE CITY OF ASBURY PARK IS VALID, APPELLANTS' CLAIM
ON THE OLD BONDS WAS BARRED BY LAW, AND THE JUDGMENT BELOW MUST STAND. 
THE VALIDITY OF THAT LEGISLATION IS ASSAILED ON TWO GROUNDS.  IT IS
CONTENDED, FIRST, THAT THE NEW JERSEY LAWS CONSTITUTE MUNICIPAL
BANKRUPTCY LEGISLATION, THAT THAT FIELD OF LAW-MAKING HAS BEEN
PREEMPTED BY CONGRESS, AND THAT THE NEW JERSEY LEGISLATION IS THEREFORE
INOPERATIVE.  TO THIS ARGUMENT A FEW DATES FURNISH A SHORT ANSWER.  THE
PRESENT COURT PROCEEDINGS BEGAN ON FEBRUARY 1, 1936.  THE FIRST FEDERAL
MUNICIPAL BANKRUPTCY ACT WAS DECLARED UNCONSTITUTIONAL ON MAY 25,
1936.  ASHTON V. CAMERON COUNTY DIST., 298 U.S. 513.  THE REFUNDING
PLAN NOW ASSAILED WAS APPROVED, AS WE HAVE SEEN, ON JULY 21, 1937.  IT
WAS THUS AUTHORIZED MORE THAN A YEAR BEFORE THE ENACTMENT OF THE ONLY
RELEVANT FEDERAL STATUTE, THE ACT OF AUGUST 16, 1937, 50 STAT. 653,
AMENDING THE BANKRUPTCY ACT TO PROVIDE FOR THE COMPOSITION OF
INDEBTEDNESS OF TAXING AGENCIES.  ASSUMING CONGRESS HAD POWER TO DO SO,
THIS ACT DID NOT PROFESS TO TERMINATE A PENDING STATE COURT PROCEEDING
LIKE THAT NOW IN QUESTION.  IT WOULD OFFEND THE MOST SETTLED HABITS IN
THE RELATIONSHIP BETWEEN THE STATES AND THE NATION TO IMPLY SUCH A
RETROACTIVE NULLIFICATION OF STATE AUTHORITY OVER ITS SUBORDINATE
ORGANS OF GOVERNMENT. 

WE PREFER, HOWEVER, TO DISPOSE OF THIS OBJECTION ON A BROADER
GROUND.  NOT UNTIL APRIL 25, 1938, WAS THE POWER OF CONGRESS TO AFFORD
RELIEF SIMILAR TO THAT GIVEN BY NEW JERSEY FOR ITS MUNICIPALITIES
CLEARLY ESTABLISHED, UNITED STATES V. BEKINS, 304 U.S. 27, AND THEN
ONLY BECAUSE CONGRESS HAD BEEN "ESPECIALLY SOLICITOUS TO AFFORD NO
GROUND" FOR THE "OBJECTION" THAT AN EXERCISE OF FEDERAL BANKRUPTCY OVER
POLITICAL SUBDIVISIONS OF THE STATE "MIGHT MATERIALLY RESTRICT ITS
CONTROL OVER ITS FISCAL AFFAIRS" WHEREBY STATES WOULD NO LONGER BE
"FREE TO MANAGE THEIR OWN AFFAIRS."  THE STATUTE WAS "CAREFULLY DRAWN
SO AS NOT TO IMPINGE UPON THE SOVEREIGNTY OF THE STATE.  THE STATE
RETAINS CONTROL OF ITS FISCAL AFFAIRS.  THE BANKRUPTCY POWER IS
EXERCISED  ... ONLY IN A CASE WHERE THE ACTION OF THE TAXING AGENCY IN
CARRYING OUT A PLAN OF COMPOSITION APPROVED BY THE BANKRUPTCY COURT IS
AUTHORIZED BY STATE LAW."  304 U.S. AT 50, 51.  NEW JERSEY EXPRESSLY
PROHIBITS ANY MUNICIPALITY TO AVAIL ITSELF OF A FEDERAL BANKRUPTCY ACT
"UNLESS THE APPROVAL OF THE MUNICIPAL FINANCE COMMISSION  ...  BE FIRST
HAD AND OBTAINED."  REVISED STATUTES OF NEW JERSEY (1937), 52:  27-40. 
THE CITY OF ASBURY PARK HAS NEVER ATTEMPTED TO RESORT TO A FEDERAL
BANKRUPTCY COURT, AND THE NEW JERSEY MUNICIPAL FINANCE COMMISSION HAS
NOT AUTHORIZED IT TO DO SO.  CAN IT BE THAT A POWER THAT WAS NOT
RECOGNIZED UNTIL 1938, AND WHEN SO RECOGNIZED, WAS CAREFULLY
CIRCUMSCRIBED TO RESERVE FULL FREEDOM TO THE STATES, HAS NOW BEEN
COMPLETELY ABSORBED BY THE FEDERAL GOVERNMENT - THAT A STATE WHICH, AS
IN THE CASE OF NEW JERSEY, HAS AFTER LONG STUDY DEVISED ELABORATE
MACHINERY FOR THE AUTONOMOUS REGULATION OF PROBLEMS SO PECULIARLY LOCAL
AS THE FISCAL MANAGEMENT OF ITS OWN HOUSEHOLD, IS POWERLESS IN THIS
FIELD?  WE THINK NOT. 

THIS BRINGS US TO THE SECOND AND MAIN CONTENTION, NAMELY, THAT THE
APPELLANTS' CLAIMS IN THE FORM OF THE BONDS AND COUPONS ISSUED BY THE
CITY OF ASBURY PARK, CONSTITUTED CONTRACTS, THE OBLIGATION OF WHICH IS
IMPAIRED BY THE DENIAL OF THEIR RIGHT TO RECOVER THEREON AND BY THEIR
TRANSMUTATION, WITHOUT THEIR CONSENT, INTO THE SECURITIES AUTHORIZED BY
THE PLAN OF ADJUSTMENT. 

THE PRINCIPAL ASSET OF A MUNICIPALITY IS ITS TAXING POWER AND THAT,
UNLIKE AN ASSET OF A PRIVATE CORPORATION, CAN NOT BE AVAILABLE FOR
DISTRIBUTION.  AN UNSECURED MUNICIPAL SECURITY IS THEREFORE MERELY A
DRAFT ON THE GOOD FAITH OF A MUNICIPALITY IN EXERCISING ITS TAXING
POWER.  THE NOTION THAT A CITY HAS UNLIMITED TAXING POWER IS, OF
COURSE, AN ILLUSION.  A CITY CANNOT BE TAKEN OVER AND OPERATED FOR THE
BENEFIT OF ITS CREDITORS, NOR CAN ITS CREDITORS TAKE OVER THE TAXING
POWER.  INDEED, SO FAR AS THE FEDERAL CONSTITUTION IS CONCERNED, THE
TAXING POWER OF A MUNICIPALITY IS NOT EVEN WITHIN ITS OWN CONTROL - IT
IS WHOLLY SUBORDINATE TO THE UNRESTRAINED POWER OF THE STATE OVER
POLITICAL SUBDIVISIONS OF ITS OWN CREATION.  "A MUNICIPAL CORPORATION
...  IS A REPRESENTATIVE NOT ONLY OF THE STATE, BUT IS A PORTION OF ITS
GOVERNMENTAL POWER  ...  THE STATE MAY WITHDRAW THESE LOCAL POWERS OF
GOVERNMENT AT PLEASURE, AND MAY, THROUGH ITS LEGISLATURE OR OTHER
APPOINTED CHANNELS, GOVERN THE LOCAL TERRITORY AS IT GOVERNS THE STATE
AT LARGE.  IT MAY ENLARGE OR CONTRACT ITS POWERS OR DESTROY ITS
EXISTENCE."  UNITED STATES V. RAILROAD COMPANY, 17 WALL.  322, 329. 
AND SEE HUNTER V. PITTSBURGH, 207 U.S. 161. 

IN EFFECT, THEREFORE, THE PRACTICAL VALUE OF AN UNSECURED CLAIM
AGAINST THE CITY IS INSEPARABLE FROM RELIANCE UPON THE EFFECTIVENESS OF
THE CITY'S TAXING POWER.  THE ONLY REMEDY FOR THE ENFORCEMENT OF SUCH A
CLAIM IS A MANDAMUS TO COMPEL THE LEVYING OF AUTHORIZED TAXES.  THE
EXPERIENCE OF THE TWO MODERN PERIODS OF MUNICIPAL DEFAULTS, AFTER THE
DEPRESSIONS OF '73 AND '93, SHOWS THAT THE RIGHT TO ENFORCE CLAIMS
AGAINST THE CITY THROUGH MANDAMUS IS THE EMPTY RIGHT TO LITIGATE.  SEE
HILLHOUSE, LESSONS FROM PREVIOUS ERAS OF DEFAULT (CHAP. IV IN CHATTERS,
MUNICIPAL DEBT DEFAULTS); REPORT OF THE SECURITIES AND EXCHANGE
COMMISSION ON THE STUDY AND INVESTIGATION OF THE WORK, ACTIVITIES,
PERSONNEL AND FUNCTIONS OF PROTECTIVE AND REORGANIZATION COMMITTEES
(1936), PT. IV:  COMMITTEES FOR THE HOLDERS OF MUNICIPAL AND QUASI
MUNICIPAL OBLIGATIONS, PASSIM; DIMOCK, LEGAL PROBLEMS OF FINANCIALLY
EMBARRASSED MUNICIPALITIES, CONTAINED IN SUMMARY OF PROCEEDINGS,
AMERICAN BAR ASSN., 1ST ANNUAL MEETING (1935), SECTION OF MUNICIPAL
LAW, P. 12(SEE ALSO XXII VIRGINIA L. REV. 39). 

HOW, THEN, CAN CLAIMS AGAINST A FINANCIALLY EMBARRASSED CITY BE
ENFORCED?  EXPERIENCE SHOWS THAT THREE CONDITIONS ARE ESSENTIAL IF THE
MUNICIPALITY IS TO BE KEPT GOING AS A POLITICAL COMMUNITY AND, AT THE
SAME TIME, THE UTMOST FOR THE BENEFIT OF THE CREDITORS IS TO BE
REALIZED:  IMPARTIAL, OUTSIDE CONTROL OVER THE FINANCES OF THE CITY;
CONCERTED ACTION BY ALL THE CREDITORS TO AVOID DESTRUCTIVE ACTION BY
INDIVIDUALS; AND RATEABLE DISTRIBUTION.  IN SHORT, WHAT IS NEEDED IS A
TEMPORARY SCHEME OF PUBLIC RECEIVERSHIP OVER A SUBDIVISION OF THE
STATE.  A POLICY OF EVERY MAN FOR HIMSELF IS DESTRUCTIVE OF THE
POTENTIAL RESOURCES UPON WHICH RESTS THE TAXING POWER WHICH IN ACTUAL
FACT CONSTITUTES THE SECURITY FOR UNSECURED OBLIGATIONS OUTSTANDING
AGAINST A CITY. 

TO DENY A STATE THE MEANS OF GIVING SUBSTANCE TO THE TAXING POWER
WHICH ALONE GIVES MEANING TO UNSECURED MUNICIPAL OBLIGATIONS, IS TO
HOLD, IN EFFECT, THAT THE RIGHT TO PURSUE A STERILE LITIGATION IS AN
"OBLIGATION" PROTECTED BY THE CONSTITUTION OF THE UNITED STATES.  FOR
THERE IS NO REMEDY WHEN RESORT IS HAD TO "DEVICES AND CONTRIVANCES" TO
NULLIFY THE TAXING POWER WHICH CAN BE CARRIED OUT ONLY THROUGH
AUTHORIZED OFFICIALS.  SEE REES V. CITY OF WATERTOWN, 19 WALL.  107,
124.  AND SO WE HAVE HAD THE SPECTACLE OF TAXING OFFICIALS RESIGNING
FROM OFFICE IN ORDER TO FRUSTRATE TAX LEVIES THROUGH MANDAMUS, AND
OFFICIALS RUNNING ON A PLATFORM OF WILLINGNESS TO GO TO JAIL RATHER
THAN TO ENFORCE A TAX LEVY (SEE RAYMOND, STATE AND MUNICIPAL BONDS, 342
43), AND EVASION OF SERVICE BY TAX COLLECTORS, THUS MAKING IMPOTENT A
COURT'S MANDATE.  YOST V. DALLAS COUNTY, 236 U.S. 50, 57.  BUT IF TAXES
CAN ONLY BE PROTECTED BY THE AUTHORITY OF THE STATE AND THE STATE CAN
WITHDRAW THAT AUTHORITY, THE AUTHORITY TO LEVY A TAX IS IMPORTED INTO
AN OBLIGATION TO PAY AN UNSECURED MUNICIPAL CLAIM, AND THERE IS ALSO
IMPORTED THE POWER OF THE STATE TO MODIFY THE MEANS FOR EXERCISING THE
TAXING POWER EFFECTIVELY IN ORDER TO DISCHARGE SUCH OBLIGATION, IN VIEW
OF CONDITIONS NOT CONTEMPLATED WHEN THE CLAIMS AROSE.  IMPAIRMENT OF AN
OBLIGATION MEANS REFUSAL TO PAY AN HONEST DEBT; IT DOES NOT MEAN
CONTRIVING WAYS AND MEANS FOR PAYING IT.  THE NECESSITY COMPELLED BY
UNEXPECTED FINANCIAL CONDITIONS TO MODIFY AN ORIGINAL ARRANGEMENT FOR
DISCHARGING A CITY'S DEBT IS IMPLIED IN EVERY SUCH OBLIGATION FOR THE
VERY REASON THAT THEREBY THE OBLIGATION IS DISCHARGED, NOT IMPAIRED. 
MORE THAN FIFTY YEARS AGO, LORD BRYCE POINTED OUT THAT THE DEBT AND
TAXATION OF AMERICAN CITIES HAD REACHED "AN ALARMING FIGURE."  BRYCE,
THE AMERICAN COMMONWEALTH, P. 607.  BEGINNING WITH 1915, THE EVIL
CONSEQUENCES OF THE UNHEALTHY FINANCIAL CONDITIONS OF NEW JERSEY
MUNICIPALITIES BEGAN TO OCCUPY THE ATTENTION OF ITS LEGISLATURE. 
INVESTIGATIONS BY EXPERT BODIES LED TO A SERIES OF ENACTMENTS
TIGHTENING STATE CONTROL OVER MUNICIPAL FINANCES.  SEE REPORTS OF NEW
JERSEY LEGISLATIVE COMMISSION FOR THE SURVEY OF MUNICIPAL FINANCING,
1915, 1916, 1917; REPORTS OF NEW JERSEY COMMISSION ON MUNICIPAL
TAXATION AND FINANCE, PARTICULARLY REPORT NO. 2(MUNICIPAL AND COUNTY
DEBT, 1931).  THE DEPRESSION INTENSIFIED THE NEED FOR STATE CONTROL,
AND THE ESTABLISHMENT OF THE MUNICIPAL FINANCE COMMISSION WITH THE
POWERS OUTLINED ABOVE WAS DESIGNED, AS STATED BY THE LEGISLATURE, TO
MEET "THE PUBLIC EMERGENCY ARISING FROM A DEFAULT IN THE PAYMENT OF
MUNICIPAL OBLIGATIONS, AND THE RESULTING IMPAIRMENT OF PUBLIC CREDIT." 
BUT THIS EMERGENCY, AS THE DECISIONS IN THIS COURT DURING THE LAST TEN
YEARS AMPLY TESTIFY, DID NOT EVAPORATE.  STUDENTS OF THE SUBJECT HAVE
POINTED OUT THAT, IN THE DEPRESSION OF 1893 AS IN THAT OF 1873, "THE
WORST FINANCIAL DIFFICULTIES FOR MUNICIPALITIES CAME IN THE FOURTH YEAR
OF THE DEPRESSION."  SEE HILLHOUSE, SUPRA, AT 14.  HISTORY REPEATED
ITSELF, CERTAINLY AS TO NEW JERSEY MUNICIPALITIES.  SEE REPORT OF NEW
JERSEY MUNICIPAL FINANCE COMMISSION, 1937, AND SECOND ANNUAL REPORT OF
THE LOCAL GOVERNMENT BOARD (TO WHICH THE FUNCTIONS OF THE MUNICIPAL
FINANCE COMMISSION WERE TRANSFERRED IN 1939), 1940, P. 11.  THE WHOLE
HISTORY OF NEW JERSEY LEGISLATION LEAVES NO DOUBT THAT THE STATE WAS
BENT ON HOLDING THE MUNICIPALITIES TO THEIR OBLIGATIONS BY UTILIZING
THE MOST WIDELY APPROVED MEANS FOR MAKING THEM EFFECTIVE.  THE
INTERVENTION OF THE STATE IN THE FISCAL AFFAIRS OF ITS CITIES IS
PLAINLY AN EXERCISE OF ITS ESSENTIAL RESERVE POWER TO PROTECT THE VITAL
INTERESTS OF ITS PEOPLE BY SUSTAINING THE PUBLIC CREDIT AND MAINTAINING
LOCAL GOVERNMENT.  THE PAYMENT OF THE CREDITORS WAS THE END TO BE
OBTAINED, BUT IT COULD BE MAINTAINED ONLY BY SAVING THE RESOURCES OF
THE MUNICIPALITY - THE GOOSE WHICH LAYS ITS GOLDEN EGGS, NAMELY, THE
TAXES WHICH ALONE CAN MEET THE OUTSTANDING CLAIMS. 

THE REAL CONSTITUTIONAL QUESTION IS WHETHER THE CONTRACT CLAUSE OF
THE CONSTITUTION BARS THE ONLY PROVEN WAY FOR ASSURING PAYMENT OF
UNSECURED MUNICIPAL OBLIGATIONS.  FOR, IN THE LIGHT OF HISTORY, AND
MORE PARTICULARLY ON THE BASIS OF THE RECOMMENDATIONS OF ITS EXPERT
ADVISERS, THE NEW JERSEY LEGISLATURE WAS ENTITLED TO FIND THAT IN ORDER
TO KEEP ITS INSOLVENT MUNICIPALITIES GOING, AND AT THE SAME TIME
FRUCTIFY THEIR LANGUISHING SOURCES OF REVENUE AND THUS AVOID
REPUDIATION, FAIR AND JUST ARRANGEMENTS BY WAY OF COMPOSITIONS,
SCRUTINIZED AND AUTHORIZED BY A COURT, MIGHT BE NECESSARY, AND THAT TO
BE EFFICACIOUS SUCH A COMPOSITION MUST BIND ALL, AFTER 85 PER CENT OF
THE CREDITORS ASSENT, IN ORDER TO PREVENT UNREASONABLE MINORITY
OBSTRUCTION.  AS THE COURT BELOW POINTED OUT, IN VIEW OF THE SLUMP OF
THE CREDIT OF THE CITY OF ASBURY PARK BEFORE THE ADOPTION OF THE PLAN
NOW ASSAILED, APPELLANTS' BONDS HAD LITTLE VALUE; THE NEW BONDS ISSUED
UNDER THE PLAN, HOWEVER, ARE NOT IN DEFAULT AND THERE IS A VERY
SUBSTANTIAL MARKET FOR THEM.  THE REFUNDING SCHEME, AS PART OF A
COMPREHENSIVE PLAN FOR SALVAGING ASBURY PARK, BOTH GOVERNMENTALLY AND
FINANCIALLY, WAS SO SUCCESSFUL THAT THE REFUNDING BONDS WERE SELLING AT
AROUND 69 AT THE TIME OF REFUNDING, WHILE AT ABOUT THE TIME THE PRESENT
SUIT WAS BROUGHT COMMANDED A MARKET AT BETTER THAN 90.  SEE SECOND
ANNUAL REPORT OF THE NEW JERSEY LOCAL GOVERNMENT BOARD, 1940, P. 39. 

FROM TIME TO TIME, EVER SINCE STURGES V. CROWNINSHIELD, 4 WHEAT. 
122, 199, IT HAS BEEN STATED THAT A STATE INSOLVENCY ACT IS LIMITED BY
THE CONTRACT CLAUSE OF THE CONSTITUTION IN AUTHORIZING COMPOSITION OF
PREEXISTING DEBTS.  SO IT IS, BUT IT ALL DEPENDS ON WHAT IS AFFECTED BY
SUCH A COMPOSITION AND WHAT STATE POWER IT BRINGS INTO PLAY.  THE
DICTUM FROM STURGES V. CROWNINSHIELD IS ONE OF THOSE INACCURATE
GENERALIZATIONS THAT HAVE GAINED MOMENTUM FROM UNCRITICAL REPETITION. 

IF A STATE RETAINS POLICE POWER WITH RESPECT TO BUILDING AND LOAN
ASSOCIATIONS, VEIX V. SIXTH WARD ASSN., 310 U.S. 32, 38, BECAUSE OF
THEIR RELATION TO THE FINANCIAL WELL-BEING OF THE STATE, AND IF IT MAY
AUTHORIZE THE REORGANIZATION OF AN INSOLVENT BANK UPON THE APPROVAL OF
A STATE SUPERINTENDENT OF BANKS AND A COURT, BUT OVER THE DISSENT OF
ONEFOURTH OF THE DEPOSITORS (EXCEPT PREFERRED OR SECURED CLAIMANTS),
DOTY V. LOVE, 295 U.S. 64, A STATE SHOULD CERTAINLY NOT BE DENIED A
LIKE POWER FOR THE MAINTENANCE OF ITS POLITICAL SUBDIVISIONS AND FOR
THE PROTECTION NOT ONLY OF THEIR CREDIT BUT OF ALL THE CREDITORS BY AN
ADJUSTMENT ASSENTED TO BY AT LEAST 85 PER CENT OF THE CREDITORS,
APPROVED BY THE COMMISSION OF THE STATE HAVING OVERSIGHT OF ITS
MUNICIPALITIES, AND FOUND WISE AND JUST AFTER DUE HEARING BY A COURT. 

THE CONSTITUTION IS "INTENDED TO PRESERVE PRACTICAL AND SUBSTANTIAL
RIGHTS, NOT TO MAINTAIN THEORIES."  DAVIS V. MILLS, 194 U.S. 451, 457. 
PARTICULARLY IN A CASE LIKE THIS ARE WE IN THE REALM OF ACTUALITIES AND
NOT OF ABSTRACTIONS AND PAPER RIGHTS, OF WHAT THINGS ARE WORTH IN
DOLLARS AND CENTS, AND IN WHAT IS PROPOSED TO REALIZE PAPER VALUES. 
"THE QUESTION WHETHER THE REMEDY ON THIS CONTRACT WAS IMPAIRED
MATERIALLY IS AFFECTED NOT ONLY BY THE PRECARIOUS CHARACTER OF THE
PLAINTIFF'S RIGHT, BUT BY CONSIDERATIONS OF FACT - OF WHAT THE REMEDY
AMOUNTED TO IN PRACTICE."  PITTSBURGH STEEL CO. V. BALTIMORE EQUITABLE
SOC., 226 U.S. 455, 459.  THIS WAS SAID OF THE CLAIM OF A CREDITOR OF A
PRIVATE CORPORATION.  HOW MUCH MORE PERTINENT IS IT TO CLAIMS OF THESE
APPELLANTS AGAINST THE MUNICIPALITY OF ASBURY PARK IN THE CIRCUMSTANCES
BEFORE US.  FN2  TO SAY THAT THE RIGHT OF THE ASBURY PARK BONDHOLDERS
IN 1935 WAS OF PRECARIOUS CHARACTER IS PURE UNDERSTATEMENT.  AND WE
HAVE ALREADY SEEN HOW EMPTY WAS THE REMEDY WITH WHICH TO ENFORCE THAT
RIGHT. 

"IN THE BOOKS THERE IS MUCH TALK ABOUT DISTINCTIONS BETWEEN CHANGES
OF THE SUBSTANCE OF THE CONTRACT AND CHANGES OF THE REMEDY  ... THE
DIVIDING LINE IS AT TIMES OBSCURE."  WORTHEN CO. V. KAVANAUGH, 295 U.S.
56, 60.  THE DIVIDING LINE WILL REMAIN OBSCURE IF WE DEAL WITH EMPTY
ABSTRACT RIGHTS INSTEAD OF WORLDLY GAINS AND LOSSES, IF WE INDULGE IN
DOCTRINAIRE TALK ABOUT "RIGHTS" AND "REMEDIES," INSTEAD OF GIVING THESE
CONCEPTS A CONTENT THAT CARRIES MEANING TO THE UNDERSTANDING OF MEN. 
HERE WE HAVE NO SUCH ACTION AS THAT DISCLOSED IN WORTHEN CO. V.
KAVANAUGH, SUPRA, WHERE WITH "STUDIED INDIFFERENCE TO THE INTERESTS OF
THE MORTGAGEE OR TO HIS APPROPRIATE PROTECTION," LEGISLATION WAS FOUND
"TO HAVE TAKEN FROM THE MORTGAGE THE QUALITY OF AN ACCEPTABLE
INVESTMENT FOR A RATIONAL INVESTOR," AND THE CHALLENGED CHANGES OF
REMEDY WERE FOUND TO BE "AN OPPRESSIVE AND UNNECESSARY DESTRUCTION OF
NEARLY ALL THE INCIDENTS THAT GIVE ATTRACTIVENESS AND VALUE TO
COLLATERAL SECURITY."  HERE WE HAVE JUST THE OPPOSITE - NO SECURITY
WHATEVER EXCEPT THE EFFECTIVE TAXING POWER OF THE MUNICIPALITY; THE
EFFECTIVE TAXING POWER OF THE MUNICIPALITY PROSTRATE WITHOUT STATE
INTERVENTION TO REVIVE THE FAMISHED FINANCES OF THE CITY; STATE
INTERVENTION, CAREFULLY DEVISED, WORKED OUT WITH SCRUPULOUS DETAIL AND
WITH DUE REGARD TO THE INTERESTS OF ALL THE CREDITORS, AND SCRUTINIZED
TO THAT END BY THE STATE JUDICIARY WITH THE RESULT THAT THAT WHICH WAS
A MOST DEPRECIATED CLAIM OF LITTLE VALUE HAS, BY THE VERY SCHEME
COMPLAINED OF, BEEN SAVED AND TRANSMUTED INTO SUBSTANTIAL VALUE.  TO
CALL A LAW SO BENEFICENT IN ITS CONSEQUENCES ON BEHALF OF THE CREDITOR
WHO, HAVING HAD SO MUCH RESTORED TO HIM, NOW INSISTS ON STANDING ON THE
PAPER RIGHTS THAT WERE MERELY PAPER BEFORE THIS RESUSCITATING SCHEME,
AN IMPAIRMENT OF THE OBLIGATION OF CONTRACT IS INDEED TO MAKE OF THE
CONSTITUTION A CODE OF LIFELESS FORMS INSTEAD OF AN ENDURING FRAMEWORK
OF GOVERNMENT FOR A DYNAMIC SOCIETY. 

WE DO NOT GO BEYOND THE CASE BEFORE US.  DIFFERENT CONSIDERATIONS MAY
COME INTO PLAY IN DIFFERENT SITUATIONS.  THUS WE ARE NOT HERE CONCERNED
WITH LEGISLATIVE CHANGES TOUCHING SECURED CLAIMS.  THE NEW JERSEY
COURTS HAVE HELD THAT UNDER THIS VERY STATUTE TAX ANTICIPATIONS AND
REVENUE NOTES STAND ON AN ENTIRELY DIFFERENT FOOTING FROM OTHER
MUNICIPAL OBLIGATIONS, AND IN RELATION TO THEM NO CLAIM IS AFFECTED BY
THE MUNICIPAL FINANCE COMMISSION ACT OF 1931.  STATE V. FORT LEE, 14
N.J. MISC. 895, 188 A. 689; AFFIRMED 118 N.J.L. 181, 191 A. 836.  THE
DIFFERENTIATION THUS MADE BY NEW JERSEY REGARDING VARIOUS OBLIGATIONS
IN ITSELF INDICATES THE DETAILED CARE WITH WHICH THE LEGISLATION OF THE
STATE PROCEEDED IN READJUSTING OUTSTANDING MUNICIPAL OBLIGATIONS. 
AFFIRMED. 

FN1  THE TEXT OF THE LEGISLATION AS INCORPORATED IN N.J. REVISED
STATUTES (1937), TIT. 52, C. 27, INDICATES THE CAREFUL CHARACTER OF THE
LEGISLATION: 

"52:  27-34.  PETITION BY CREDITORS; PLAN OF ADJUSTMENT OR
COMPOSITION; PARTIES; NOTICE.  UPON THE VERIFIED PETITION OF ANY
CREDITORS OF A MUNICIPALITY IN WHICH THE COMMISSION SHALL FUNCTION,
MADE ON BEHALF OF THEMSELVES AND ALL OTHER CREDITORS OF THE
MUNICIPALITY, FOR THE APPROVAL OF A PLAN OF ADJUSTMENT OR COMPOSITION
OF THE CLAIMS OF ALL CREDITORS OR OF A CLASS OR CLASSES OF THEM
SIMILARLY SITUATED, WHICH PLAN SHALL BE SUBMITTED WITH AND MADE A PART
OF THE PETITION, THE SUPREME COURT BY A JUSTICE THEREOF MAY TAKE
JURISDICTION OF THE SUBJECT MATTER AND ORDER THE FILING OF THE PETITION
IN THE OFFICE OF THE CLERK OF THE SUPREME COURT. 

"THE MUNICIPALITY AND THE COMMISSION SHALL BE MADE PARTIES TO SUCH
PROCEEDING.  ALL CREDITORS OF THE MUNICIPALITY SHALL BE MADE PARTIES
THERETO BY NOTICE TO BE PUBLISHED AND GIVEN IN SUCH MANNER AS THE
SUPREME COURT BY ITS JUSTICE MAY DIRECT.  ANY CREDITOR OF THE
MUNICIPALITY MAY APPEAR AND ASSERT HIS RIGHTS. 

"52:  27-35.  ALLEGATIONS IN PETITION.  IN THE PETITION THE CREDITORS
SHALL ALLEGE THAT THE MUNICIPALITY IS OR WILL BE UNABLE TO PAY IN FULL
ACCORDING TO THEIR TERMS THE CLAIMS PROPOSED TO BE ADJUSTED OR COMPOSED
AND PERFORM ITS PUBLIC FUNCTIONS AND PRESERVE THE VALUE OF PROPERTY
SUBJECT TO TAXATION, THAT THE ADJUSTMENT OR COMPOSITION PROPOSED IN THE
PLAN IS SUBSTANTIALLY MEASURED BY THE CAPACITY OF THE MUNICIPALITY TO
PAY, IS IN THE INTERESTS OF ALL THE CREDITORS AFFECTED THEREBY, AND IS
NOT DETRIMENTAL TO OTHER CREDITORS OF THE MUNICIPALITY. 

"52:  27-36.  APPROVAL BY SUPREME COURT JUSTICE OF PLAN OF ADJUSTMENT
OR COMPOSITION; FINDINGS.  IN ANY SUCH PROCEEDING, AFTER HEARING ON THE
PLAN PROPOSED OR ON THE PLAN AS MODIFIED BY ORDER AND IF SUCH PLAN AS
PROPOSED OR MODIFIED IS APPROVED IN WRITING BY CREDITORS REPRESENTING
EIGHTY-FIVE PER CENT IN AMOUNT OF THE INDEBTEDNESS AFFECTED THEREBY AND
BY THE MUNICIPALITY AND THE COMMISSION, THE SUPREME COURT BY A JUSTICE
THEREOF MAY BY ORDER AUTHORIZE AND APPROVE SUCH ADJUSTMENT OR
COMPOSITION IF THE COURT BY ITS JUSTICE DETERMINES (1) THAT THE
MUNICIPALITY IS UNABLE TO PAY IN FULL ACCORDING TO THEIR TERMS THE
CLAIMS PROPOSED TO BE ADJUSTED OR COMPOSED, AND PERFORM ITS PUBLIC
FUNCTIONS AND PRESERVE THE VALUE OF PROPERTY SUBJECT TO TAXATION, (2)
THAT THE ADJUSTMENT OR COMPOSITION IS SUBSTANTIALLY MEASURED BY THE
CAPACITY OF THE MUNICIPALITY TO PAY, (3) THAT IT IS IN THE INTEREST OF
ALL THE CREDITORS AFFECTED THEREBY, AND (4) THAT IT IS NOT DETRIMENTAL
TO OTHER CREDITORS OF THE MUNICIPALITY. 

"52:  27-37.  APPROVED PLAN BINDING ON ALL CREDITORS; SUBSTITUTED
OBLIGATIONS.  THE PLAN OF ADJUSTMENT SO AUTHORIZED AND APPROVED SHALL
FORTHWITH AND WITHOUT ANY FURTHER ACTION OF ANY KIND BE BINDING UPON
ALL THE CREDITORS INCLUDED IN THE PLAN, WHETHER OR NOT THEY APPEAR IN
THE PROCEEDING.  IN SO FAR AS SAID PLAN PROVIDES FOR THE SUBSTITUTION
OF ANY NEW BONDS, NOTES OR OTHER OBLIGATIONS OF THE MUNICIPALITY IN
PLACE OF ANY OUTSTANDING BONDS, NOTES OR OTHER OBLIGATIONS, OR CLAIMS
THEN OUTSTANDING, SUCH SUBSTITUTION SHALL BE EFFECTUAL FROM AND AFTER
SUCH DATE AS MAY BE FIXED IN SUCH ORDER. 

"52:  27-38.  CONTINUANCE OF STAY OF PROCEEDINGS AGAINST
MUNICIPALITY; ACTION BY CREDITOR TO ENFORCE CLAIM RESTRICTED.  AFTER
THE INSTITUTION OF ANY PROCEEDING PROVIDED FOR BY THIS ARTICLE AND
PENDING THE DETERMINATION THEREOF, THE SUPREME COURT BY A JUSTICE
THEREOF MAY BY ORDER CONTINUE THE STAY PROVIDED BY SECTIONS 52:  27
32.1 AND 52:  27-33 OF THIS TITLE. 

"IN THE EVENT THAT A PLAN SHALL BE AUTHORIZED AND APPROVED PURSUANT
TO THIS ARTICLE THE COURT SHALL RETAIN JURISDICTION OF SUCH PROCEEDING
AND THEREAFTER NO CREDITOR WHOSE CLAIM IS INCLUDED IN SUCH ADJUSTMENT
OR COMPOSITION SHALL BE AUTHORIZED TO BRING ANY ACTION OR PROCEEDING OF
ANY KIND OR CHARACTER FOR THE ENFORCEMENT OF HIS CLAIM EXCEPT WITH THE
PERMISSION OF THE SUPREME COURT AND THEN ONLY TO RECOVER AND ENFORCE
THE RIGHTS GIVEN HIM BY THE ADJUSTMENT OR COMPOSITION. 

"52:  27-39.  REDUCTION IN PRINCIPAL OF OUTSTANDING NOTES OR BONDS
PROHIBITED.  NOTWITHSTANDING ANY PROVISIONS OF THIS ARTICLE THE
COMMISSION SHALL NOT APPROVE ANY ADJUSTMENT OR COMPOSITION, OR PLAN
PRESENTED PURSUANT TO THIS ARTICLE, WHICH PROVIDES FOR THE REDUCTION IN
THE PRINCIPAL AMOUNT OF ANY OUTSTANDING NOTES OR BONDS OF THE
MUNICIPALITY."    FN2  COMPARE CHICAGO, B. & Q.R. CO. V. NEBRASKA, 170
U.S. 57, 72.  "USUALLY, WHERE A CONTRACT, NOT CONTRARY TO PUBLIC
POLICY, HAS BEEN ENTERED INTO BETWEEN PARTIES COMPETENT TO CONTRACT, IT
IS NOT WITHIN THE POWER OF EITHER PARTY TO WITHDRAW FROM ITS TERMS
WITHOUT THE CONSENT OF THE OTHER; AND THE OBLIGATION OF SUCH A CONTRACT
IS CONSTITUTIONALLY PROTECTED FROM HOSTILE LEGISLATION.  WHERE,
HOWEVER, THE RESPECTIVE PARTIES ARE NOT PRIVATE PERSONS, DEALING WITH
MATTERS AND THINGS IN WHICH THE PUBLIC HAS NO CONCERN, BUT ARE PERSONS
OR CORPORATIONS WHOSE RIGHTS AND POWERS WERE CREATED FOR PUBLIC
PURPOSES, BY LEGISLATIVE ACTS, AND WHERE THE SUBJECT-MATTER OF THE
CONTRACT IS ONE WHICH AFFECTS THE SAFETY AND WELFARE OF THE PUBLIC,
OTHER PRINCIPLES APPLY.  CONTRACTS OF THE LATTER DESCRIPTION ARE HELD
TO BE WITHIN THE SUPERVISING POWER AND CONTROL OF THE LEGISLATURE WHEN
EXERCISED TO PROTECT THE PUBLIC SAFETY, HEALTH AND MORALS, AND THAT
CLAUSE OF THE FEDERAL CONSTITUTION WHICH PROTECTS CONTRACTS FROM
LEGISLATIVE ACTION CANNOT IN EVERY CASE BE SUCCESSFULLY INVOKED.  THE
PRESUMPTION IS THAT WHEN SUCH CONTRACTS ARE ENTERED INTO IT IS WITH THE
KNOWLEDGE THAT PARTIES CANNOT, BY MAKING AGREEMENTS ON SUBJECTS
INVOLVING THE RIGHTS OF THE PUBLIC, WITHDRAW SUCH SUBJECTS FROM THE
POLICE POWER OF THE LEGISLATURE." 

MR. JUSTICE REED CONCURS IN THE RESULT. 
..END :










KIRSCHBAUM CO. V. WALLING, 316 U.S. 517 


NO. 910.  ARGUED APRIL 28, 29, 1942.  - DECIDED JUNE 1, 1942.  - 124
F.2D 567 AND 125 F.2D 278, AFFIRMED. 


1.  THE FAIR LABOR STANDARDS ACT OF 1938 HELD APPLICABLE TO EMPLOYEES
ENGAGED IN THE MAINTENANCE AND OPERATION OF A BUILDING WHOSE TENANTS
ARE ENGAGED PRINCIPALLY IN THE PRODUCTION OF GOODS FOR INTERSTATE
COMMERCE.  P. 524. 

2.  SUCH EMPLOYEES ARE ENGAGED IN AN "OCCUPATION NECESSARY TO THE
PRODUCTION" OF GOODS IN INTERSTATE COMMERCE, WITHIN THE MEANING OF SEC.
3(J) OF THE ACT.  P. 524. 

3.  THE EMPLOYEES HERE INVOLVED CAN NOT BE REGARDED AS ENGAGED IN
"SERVICE ESTABLISHMENTS" WITHIN THE EXEMPTION OF SEC. 13(A)(2) OF THE
ACT.  P. 526. 

A.B. KIRSCHBAUM CO. V. WALLING, ADMINISTRATOR OF THE WAGE & HOUR
DIVISION, U.S. DEPARTMENT OF LABOR.* 

*TOGETHER WITH NO. 924, ARSENAL BUILDING CORP. ET AL. V. WALLING,
ADMINISTRATOR OF THE WAGE & HOUR DIVISION, U.S. DEPARTMENT OF LABOR, ON
WRIT OF CERTIORARI, 315 U.S. 792, TO THE CIRCUIT COURT OF APPEALS FOR
THE SECOND CIRCUIT.   - ARGUED APRIL 29, 1942. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 315 U.S. 792, TO REVIEW, IN NO. 910, THE AFFIRMANCE OF A
DECREE ENJOINING THE PETITIONERS FROM AN ALLEGED VIOLATION OF THE FAIR
LABOR STANDARDS ACT, 38 F.SUPP.  204; AND, IN NO. 924, THE REVERSAL OF
A DECREE DENYING SUCH AN INJUNCTION, 38 F.SUPP.  207. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN UNITED STATES V. DARBY, 312 U.S. 100, AND OPP COTTON MILLS V.
ADMINISTRATOR, 312 U.S. 126, THE CONSTITUTIONALITY OF THE FAIR LABOR
STANDARDS ACT OF 1938, 52 STAT. 1060, 29 U.S.C. SEC. 201 ET SEQ., WAS
SUSTAINED.  IN THE CASES NOW BEFORE US WE ARE REQUIRED TO CONSIDER THE
SCOPE OF THE ACT IN RELATION TO A PARTICULAR PHASE OF INDUSTRIAL
ACTIVITY.  SPECIFICALLY, THE PROBLEM IS THIS: UNDER SEC. 6 OF THE ACT
AN EMPLOYER MUST PAY PRESCRIBED MINIMUM WAGES "TO EACH OF HIS EMPLOYEES
WHO IS ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE,"
AND UNDER SEC. 7 OVERTIME COMPENSATION MUST BE GIVEN "ANY OF HIS
EMPLOYEES WHO IS ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE."  SECTION 3(J) PROVIDES THAT "FOR THE PURPOSES OF THIS ACT AN
EMPLOYEE SHALL BE DEEMED TO HAVE BEEN ENGAGED IN THE PRODUCTION OF
GOODS IF SUCH EMPLOYEE WAS EMPLOYED ...  IN ANY PROCESS OR OCCUPATION
NECESSARY TO THE PRODUCTION THEREOF, IN ANY STATE."  THE EMPLOYEES HERE
ARE ENGAGED IN THE OPERATION AND MAINTENANCE OF A LOFT BUILDING IN
WHICH LARGE QUANTITIES OF GOODS FOR INTERSTATE COMMERCE ARE PRODUCED. 
DOES THE FAIR LABOR STANDARDS ACT EXTEND TO SUCH EMPLOYEES? 

THE FACTS IN THE TWO CASES DIFFER ONLY IN MINOR DETAIL.  IN NO. 910,
THE PETITIONER OWNS AND OPERATES A SIX-STORY LOFT BUILDING IN
PHILADELPHIA.  THE TENANTS ARE, FOR THE MOST PART, MANUFACTURERS OF
MEN'S AND BOYS' CLOTHING.  IN NO. 924, THE PETITIONERS OWN AND OPERATE
A TWENTY-TWO STORY BUILDING LOCATED IN THE HEART OF THE NEW YORK CITY
CLOTHING MANUFACTURING DISTRICT.  PRACTICALLY ALL OF THE TENANTS
MANUFACTURE OR BUY AND SELL LADIES' GARMENTS.  CONCEDEDLY, IN BOTH
CASES THE TENANTS OF THE BUILDINGS ARE PRINCIPALLY ENGAGED IN THE
PRODUCTION OF GOODS FOR INTERSTATE COMMERCE.  IN NO. 910, THE
PETITIONER EMPLOYS AN ENGINEER, THREE FIREMEN, THREE ELEVATOR
OPERATORS, TWO WATCHMEN, A PORTER, A CARPENTER, AND A CARPENTER'S
HELPER.  IN NO. 924, THE CONTROVERSY INVOLVES TWO FIREMEN, AN
ELECTRICIAN, FOURTEEN ELEVATOR OPERATORS, TWO WATCHMEN, AND SIX
PORTERS.  THESE EMPLOYEES PERFORM THE CUSTOMARY DUTIES OF PERSONS
CHARGED WITH THE EFFECTIVE MAINTENANCE OF A LOFT BUILDING.  THE
ENGINEER AND THE FIREMEN PRODUCE HEAT, HOT WATER, AND STEAM NECESSARY
TO THE MANUFACTURING OPERATIONS.  THEY KEEP ELEVATORS, RADIATORS, AND
FIRE SPRINKLER SYSTEMS IN REPAIR.  THE ELECTRICIAN MAINTAINS THE SYSTEM
WHICH FURNISHES THE TENANTS WITH LIGHT AND POWER.  THE ELEVATOR
OPERATORS RUN BOTH THE FREIGHT ELEVATORS WHICH START AND FINISH THE
INTERSTATE JOURNEYS OF GOODS GOING FROM AND COMING TO THE TENANTS, AND
THE PASSENGER ELEVATORS WHICH CARRY EMPLOYEES, CUSTOMERS, SALESMEN, AND
VISITORS.  THE WATCHMEN PROTECT THE BUILDINGS FROM FIRE AND THEFT.  THE
CARPENTERS REPAIR THE HALLS AND STAIRWAYS AND OTHER PARTS OF THE
BUILDINGS COMMONLY USED BY THE TENANTS.  THE PORTERS KEEP THE BUILDINGS
CLEAN AND HABITABLE. 

DEEMING THESE EMPLOYEES WITHIN THE ACT BECAUSE OF THEIR RELATIONSHIP
TO THE ACTIVITIES OF THE TENANTS, THE ADMINISTRATOR BROUGHT SUITS TO
ENJOIN THE PETITIONERS FROM VIOLATING THE ACT BY PAYING WAGES AT LOWER
RATES THAN THOSE FIXED BY THE ACT.  IN NO. 910, THE DISTRICT COURT
GRANTED AN INJUNCTION, 38 F.SUPP.  204, AND THE CIRCUIT COURT OF
APPEALS FOR THE THIRD CIRCUIT AFFIRMED.  124 F.2D 567.  IN NO. 924, THE
DISTRICT COURT DENIED AN INJUNCTION, 38 F.SUPP.  207, BUT THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED.  125 F.2D 278. 
DESPITE THIS CONCURRENCE OF VIEWS OF THE TWO CIRCUIT COURTS OF APPEALS,
FN1  WE BROUGHT THE CASES HERE BECAUSE OF THE IMPORTANT QUESTIONS
PRESENTED AS TO THE SCOPE OF THE FAIR LABOR STANDARDS ACT.  315 U.S.
792. 

TO SEARCH FOR A DEPENDABLE TOUCHSTONE BY WHICH TO DETERMINE WHETHER
EMPLOYEES ARE "ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE" IS AS REWARDING AS AN ATTEMPT TO SQUARE THE CIRCLE.  THE
JUDICIAL TASK IN MARKING OUT THE EXTENT TO WHICH CONGRESS HAS EXERCISED
ITS CONSTITUTIONAL POWER OVER COMMERCE IS NOT THAT OF DEVISING AN
ABSTRACT FORMULA.  PERHAPS IN NO DOMAIN OF PUBLIC LAW ARE GENERAL
PROPOSITIONS LESS HELPFUL AND INDEED MORE MISCHIEVOUS THAN WHERE
BOUNDARIES MUST BE DRAWN, UNDER A FEDERAL ENACTMENT, BETWEEN WHAT IT
HAS TAKEN OVER FOR ADMINISTRATION BY THE CENTRAL GOVERNMENT AND WHAT IT
HAS LEFT TO THE STATES.  TO A CONSIDERABLE EXTENT THE TASK IS ONE OF
ACCOMMODATION AS BETWEEN ASSERTIONS OF NEW FEDERAL AUTHORITY AND
HISTORIC FUNCTIONS OF THE INDIVIDUAL STATES.  THE EXPANSION OF OUR
INDUSTRIAL ECONOMY HAS INEVITABLY BEEN REFLECTED IN THE EXTENSION OF
FEDERAL AUTHORITY OVER ECONOMIC ENTERPRISE AND ITS ABSORPTION OF
AUTHORITY PREVIOUSLY POSSESSED BY THE STATES.  FEDERAL LEGISLATION OF
THIS CHARACTER CANNOT THEREFORE BE CONSTRUED WITHOUT REGARD TO THE
IMPLICATIONS OF OUR DUAL SYSTEM OF GOVERNMENT. 

THE BODY OF CONGRESSIONAL ENACTMENTS REGULATING COMMERCE REVEALS A
PROCESS OF LEGISLATION WHICH IS STRIKINGLY EMPIRIC.  THE DEGREE OF
ACCOMMODATION MADE BY CONGRESS FROM TIME TO TIME IN THE RELATIONS
BETWEEN FEDERAL AND STATE GOVERNMENTS HAS VARIED WITH THE SUBJECT
MATTER OF THE LEGISLATION, THE HISTORY BEHIND THE PARTICULAR FIELD OF
REGULATION, THE SPECIFIC TERMS IN WHICH THE NEW REGULATORY LEGISLATION
HAS BEEN CAST, AND THE PROCEDURES ESTABLISHED FOR ITS ADMINISTRATION. 
SEE, E.G., VIRGINIAN RY. CO. V. FEDERATION, 300 U.S. 515.  THUS, WHILE
A PHASE OF INDUSTRIAL ENTERPRISE MAY BE SUBJECT TO CONTROL UNDER THE
NATIONAL LABOR RELATIONS ACT, A DIFFERENT PHASE OF THE SAME ENTERPRISE
MAY NOT COME WITHIN THE "COMMERCE" PROTECTED BY THE SHERMAN LAW. 
COMPARE, FOR EXAMPLE, UNITED LEATHER WORKERS V. HERKERT, 265 U.S. 457,
AND LEVERING & GARRIGUES CO. V. MORRIN, 289 U.S. 103, WITH LABOR BOARD
V. FRIEDMAN-HARRY MARKS CLOTHING CO., 301 U.S. 58, AND LABOR BOARD V.
FAINBLATT, 306 U.S. 601.  SIMILARLY, ENTERPRISES SUBJECT TO FEDERAL
INDUSTRIAL REGULATION MAY NEVERTHELESS BE TAXED BY THE STATES WITHOUT
PUTTING AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE.  COMPARE
HEISLER V. THOMAS COLLIERY CO., 260 U.S. 245, AND OLIVER IRON CO. V.
LORD, 262 U.S. 172, WITH SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381. 

WE CANNOT, THEREFORE, INDULGE IN THE LOOSE ASSUMPTION THAT, WHEN
CONGRESS ADOPTS A NEW SCHEME FOR FEDERAL INDUSTRIAL REGULATION, IT
THEREBY DEALS WITH ALL SITUATIONS FALLING WITHIN THE GENERAL MISCHIEF
WHICH GAVE RISE TO THE LEGISLATION.  SUCH AN ASSUMPTION MIGHT BE VALID
WHERE REMEDY OF THE MISCHIEF IS THE CONCERN OF ONLY A SINGLE UNITARY
GOVERNMENT.  IT CANNOT BE ACCEPTED WHERE THE PRACTICALITIES OF
FEDERALISM - OR, MORE PRECISELY, THE UNDERLYING ASSUMPTIONS OF OUR DUAL
FORM OF GOVERNMENT AND THE CONSEQUENT PRESUPPOSITIONS OF LEGISLATIVE
DRAFTSMANSHIP WHICH ARE EXPRESSIVE OF OUR HISTORY AND HABITS - CUT
ACROSS WHAT MIGHT OTHERWISE BE THE IMPLIED RANGE OF THE LEGISLATION. 
CONGRESS MAY CHOOSE, AS IT HAS CHOSEN FREQUENTLY IN THE PAST, TO
REGULATE ONLY PART OF WHAT IT CONSTITUTIONALLY CAN REGULATE, LEAVING TO
THE STATES ACTIVITIES WHICH, IF ISOLATED, ARE ONLY LOCAL.  ONE NEED
REFER ONLY TO THE HISTORY OF CONGRESSIONAL CONTROL OVER THE RATES OF
INTRASTATE CARRIERS WHICH AFFECT INTERSTATE COMMERCE,  FN2  AND THE
AMENDMENT OF AUGUST 11, 1939, TO THE FEDERAL EMPLOYERS' LIABILITY ACT,
EXTENDING THE SCOPE OF THAT ACT TO EMPLOYEES WHO "SHALL, IN ANY WAY
DIRECTLY OR CLOSELY AND SUBSTANTIALLY, AFFECT" INTERSTATE COMMERCE, 53
STAT. 1404.  COMPARE FEDERAL TRADE COMMISSION V. BUNTE BROS., 312 U.S.
349.  THE HISTORY OF CONGRESSIONAL LEGISLATION REGULATING NOT ONLY
INTERSTATE COMMERCE AS SUCH BUT ALSO ACTIVITIES INTERTWINED WITH IT,
JUSTIFIES THE GENERALIZATION THAT, WHEN THE FEDERAL GOVERNMENT TAKES
OVER SUCH LOCAL RADIATIONS IN THE VAST NETWORK OF OUR NATIONAL ECONOMIC
ENTERPRISE AND THEREBY RADICALLY READJUSTS THE BALANCE OF STATE AND
NATIONAL AUTHORITY, THOSE CHARGED WITH THE DUTY OF LEGISLATING ARE
REASONABLY EXPLICIT AND DO NOT ENTRUST ITS ATTAINMENT TO THAT
RETROSPECTIVE EXPANSION OF MEANING WHICH PROPERLY DESERVES THE STIGMA
OF JUDICIAL LEGISLATION. 

THE ADMINISTRATOR DOES NOT CONTEND THAT THE EMPLOYEES IN THE CASES
BEFORE US ARE WITHIN THE ACT BECAUSE CONGRESS COULD HAVE PLACED THEM
THERE.  THE HISTORY OF THE LEGISLATION LEAVES NO DOUBT THAT CONGRESS
CHOSE NOT TO ENTER AREAS WHICH IT MIGHT HAVE OCCUPIED.  AS PASSED BY
THE HOUSE, THE BILL APPLIED TO EMPLOYERS "ENGAGED IN COMMERCE IN ANY
INDUSTRY AFFECTING COMMERCE."  SEE H. REP. NO. 2182, 75TH CONG., 3RD
SESS., P. 2; 83 CONG. REC. 7749-50.  BUT THE BILL RECOMMENDED BY THE
CONFERENCE APPLIED ONLY TO EMPLOYEES "ENGAGED IN COMMERCE OR IN THE
PRODUCTION OF GOODS FOR COMMERCE."  H. REP. NO. 2738, 75TH CONG., 3RD
SESS., PP. 29-30; 83 CONG. REC. 9158, 9266-67.  MOREOVER, IN ONE OF ITS
INTERMEDIATE STAGES, THE MEASURE INCORPORATED THE SHREVEPORT DOCTRINE,
HOUSTON, E. & W.T. RY. CO. V. UNITED STATES, SUPRA, IN THAT IT WAS
SPECIFICALLY MADE APPLICABLE TO INTRASTATE PRODUCTION WHICH COMPETED
WITH GOODS PRODUCED IN ANOTHER STATE.  S. 2475, 75TH CONG. 3RD SESS.,
AS RECOMMITTED DECEMBER 17, 1937, SEC. 8(A).  BUT, AS REPORTED BY THE
HOUSE COMMITTEE ON LABOR, THIS PROVISION WAS DELETED.  S. 2475, SUPRA,
AS REPORTED APRIL 21, 1938; SEE H. REP. 2182, SUPRA. 

SINCE THE SCOPE OF THE ACT IS NOT COEXTENSIVE WITH THE LIMITS OF THE
POWER OF CONGRESS OVER COMMERCE, THE QUESTION REMAINS WHETHER THESE
EMPLOYEES FALL WITHIN THE STATUTORY DEFINITION OF EMPLOYEES "ENGAGED IN
COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE," CONSTRUED AS THE
PROVISION MUST BE IN THE CONTEXT OF THE HISTORY OF FEDERAL ABSORPTION
OF GOVERNMENTAL AUTHORITY OVER INDUSTRIAL ENTERPRISE.  IN THIS TASK OF
CONSTRUCTION, WE ARE WITHOUT THE AID AFFORDED BY A PRELIMINARY
ADMINISTRATIVE PROCESS FOR DETERMINING WHETHER THE PARTICULAR SITUATION
IS WITHIN THE REGULATED AREA.  UNLIKE THE INTERSTATE COMMERCE ACT AND
THE NATIONAL LABOR RELATIONS ACT AND OTHER LEGISLATION, THE FAIR LABOR
STANDARDS ACT PUTS UPON THE COURTS THE INDEPENDENT RESPONSIBILITY OF
APPLYING AD HOC THE GENERAL TERMS OF THE STATUTE TO AN INFINITE VARIETY
OF COMPLICATED INDUSTRIAL SITUATIONS.  OUR PROBLEM IS, OF COURSE, ONE
OF DRAWING LINES.  BUT IT IS NOT AT ALL A PROBLEM IN MENSURATION. 
THERE ARE NO FIXED POINTS, THOUGH LINES ARE TO BE DRAWN.  THE REAL
QUESTION IS HOW THE LINES ARE TO BE DRAWN - WHAT ARE THE RELEVANT
CONSIDERATIONS IN PLACING THE LINE HERE RATHER THAN THERE.  TO THAT END
WE HAVE TRIED TO STATE WITH CANDOR THE LARGER CONSIDERATIONS OF
NATIONAL POLICY, LEGISLATIVE HISTORY, AND ADMINISTRATIVE PRACTICALITIES
THAT UNDERLIE THE VARIATIONS IN THE TERMS OF CONGRESSIONAL COMMERCIAL
REGULATORY MEASURES AND WHICH THEREFORE SHOULD GOVERN THEIR JUDICIAL
CONSTRUCTION. 

WE START WITH THE WEIGHTY OPINIONS OF THE TWO CIRCUIT COURTS OF
APPEALS THAT THE EMPLOYEES HERE ARE WITHIN THE ACT BECAUSE THEY WERE
ENGAGED IN OCCUPATIONS "NECESSARY TO THE PRODUCTION" OF GOODS FOR
COMMERCE BY THE TENANTS.  WITHOUT LIGHT AND HEAT AND POWER THE TENANTS
COULD NOT ENGAGE, AS THEY DO, IN THE PRODUCTION OF GOODS FOR INTERSTATE
COMMERCE.  THE MAINTENANCE OF A SAFE, HABITABLE BUILDING IS
INDISPENSABLE TO THAT ACTIVITY.  THE NORMAL AND SPONTANEOUS MEANING OF
THE LANGUAGE BY WHICH CONGRESS DEFINED IN SEC. 3(J) THE CLASS OF
PERSONS WITHIN THE BENEFITS OF THE ACT, TO WIT, EMPLOYEES ENGAGED "IN
PRODUCING, MANUFACTURING, MINING, HANDLING, TRANSPORTING, OR IN ANY
OTHER MANNER WORKING ON SUCH GOODS, OR IN ANY PROCESS OR OCCUPATION
NECESSARY TO THE PRODUCTION THEREOF," ENCOMPASSES THESE EMPLOYEES, IN
VIEW OF THEIR RELATION TO THE CONCEDED PRODUCTION OF GOODS FOR COMMERCE
BY THE TENANTS.  THE PETITIONERS ASSERT, HOWEVER, THAT THE BUILDING
INDUSTRY OF WHICH THEY ARE PART IS PURELY LOCAL IN NATURE AND THAT THE
ACT DOES NOT APPLY WHERE THE EMPLOYER IS NOT HIMSELF ENGAGED IN AN
INDUSTRY PARTAKING OF INTERSTATE COMMERCE.  BUT THE PROVISIONS OF THE
ACT EXPRESSLY MAKE ITS APPLICATION DEPENDENT UPON THE CHARACTER OF THE
EMPLOYEES' ACTIVITIES.  AND, IN ANY EVENT, TO THE EXTENT THAT HIS
EMPLOYEES ARE "ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE," THE EMPLOYER IS HIMSELF SO ENGAGED.  FN3  NOR CAN WE FIND IN
THE ACT, AS DO THE PETITIONERS, ANY REQUIREMENT THAT EMPLOYEES MUST
THEMSELVES PARTICIPATE IN THE PHYSICAL PROCESS OF THE MAKING OF THE
GOODS BEFORE THEY CAN BE REGARDED AS ENGAGED IN THEIR PRODUCTION.  SUCH
A CONSTRUCTION ERASES THE FINAL CLAUSE OF SEC. 3(J) WHICH INCLUDES
EMPLOYEES ENGAGED "IN ANY PROCESS OR OCCUPATION NECESSARY TO THE
PRODUCTION" AND THEREBY DOES NOT LIMIT THE SCOPE OF THE STATUTE TO THE
PRECEDING CLAUSE WHICH DEALS WITH EMPLOYEES "IN ANY OTHER MANNER
WORKING ON SUCH GOODS."    BUT THE PETITIONERS URGE THAT SEC. 3(J)
CANNOT BE CONSTRUED LITERALLY, THAT CONGRESS SURELY DID NOT DESIGN THE
ACT TO APPLY TO EVERY EMPLOYEE WHO HAPPENS TO PERFORM SERVICES THAT ARE
ESSENTIAL TO THE PRODUCTION OF GOODS FOR COMMERCE.  BUT BECAUSE SOME
EMPLOYEES MAY NOT BE WITHIN THE ACT EVEN THOUGH THEIR ACTIVITIES ARE IN
AN ULTIMATE SENSE "NECESSARY" TO THE PRODUCTION OF GOODS FOR COMMERCE,
IT DOES NOT FOLLOW THAT NO EMPLOYEES WHOSE ACTIVITIES ARE "NECESSARY"
ARE ENTITLED TO THE BENEFITS OF THE ACT.  SECTION 3(J) CANNOT THUS BE
READ OUT OF THE ACT.  THE LOWER COURT IN NO. 924 MET THE PETITIONERS'
ARGUMENT BY FINDING THE ACT APPLICABLE TO THESE EMPLOYEES BECAUSE THEIR
WORK WAS "IN KIND SUBSTANTIALLY THE SAME AS IT WOULD BE IF THE
MANUFACTURERS EMPLOYED THEM DIRECTLY."  IN THE IMMEDIATE SITUATION, THE
ANSWER MAY BE ADEQUATE; BUT AS A GUIDING CRITERION IT MAY PROVE TOO
MUCH.  "NECESSARY" IS COLORED BY THE CONTEXT NOT ONLY OF THE TERMS OF
THIS LEGISLATION BUT OF ITS IMPLICATIONS IN THE RELATION BETWEEN STATE
AND NATIONAL AUTHORITY.  WE CANNOT, IN CONSTRUING THE WORD "NECESSARY,"
ESCAPE AN INQUIRY INTO THE RELATIONSHIP OF THE PARTICULAR EMPLOYEES TO
THE PRODUCTION OF GOODS FOR COMMERCE.  IF THE WORK OF THE EMPLOYEES HAS
ONLY THE MOST TENUOUS RELATION TO, AND IS NOT IN ANY FITTING SENSE
"NECESSARY" TO, THE PRODUCTION, IT IS IMMATERIAL THAT THEIR ACTIVITIES
WOULD BE SUBSTANTIALLY THE SAME IF THE EMPLOYEES WORKED DIRECTLY FOR
THE PRODUCERS OF GOODS FOR COMMERCE. 

WE AGREE, HOWEVER, WITH THE CONCLUSION OF THE COURTS BELOW.  IN OUR
JUDGMENT, THE WORK OF THE EMPLOYEES IN THESE CASES HAD SUCH A CLOSE AND
IMMEDIATE TIE WITH THE PROCESS OF PRODUCTION FOR COMMERCE, AND WAS
THEREFORE SO MUCH AN ESSENTIAL PART OF IT, THAT THE EMPLOYEES ARE TO BE
REGARDED AS ENGAGED IN AN OCCUPATION "NECESSARY TO THE PRODUCTION OF
GOODS FOR COMMERCE."  WHAT WAS SAID ABOUT A RELATED PROBLEM IS NOT
INAPPOSITE HERE:  "WHATEVER TERMINOLOGY IS USED, THE CRITERION IS
NECESSARILY ONE OF DEGREE AND MUST BE SO DEFINED.  THIS DOES NOT
SATISFY THOSE WHO SEEK FOR MATHEMATICAL OR RIGID FORMULAS.  BUT SUCH
FORMULAS ARE NOT PROVIDED BY THE GREAT CONCEPTS OF THE CONSTITUTION
SUCH AS 'INTERSTATE COMMERCE,' 'DUE PROCESS,' 'EQUAL PROTECTION.'  IN
MAINTAINING THE BALANCE OF THE CONSTITUTIONAL GRANTS AND LIMITATIONS,
IT IS INEVITABLE THAT WE SHOULD DEFINE THEIR APPLICATIONS IN THE
GRADUAL PROCESS OF INCLUSION AND EXCLUSION.  THERE IS THUS NO POINT IN
THE INSTANT CASE IN A DEMAND FOR THE DRAWING OF A MATHEMATICAL LINE. 
AND WHAT IS REASONABLY CLEAR IN A PARTICULAR APPLICATION IS NOT TO BE
OVERBORNE BY THE SIMPLE AND FAMILIAR DIALECTIC OF SUGGESTING DOUBTFUL
AND EXTREME CASES."  SANTA CRUZ CO. V. LABOR BOARD, 303 U.S. 453, 467. 
"WHAT IS NEEDED IS SOMETHING OF THAT COMMON-SENSE ACCOMMODATION OF
JUDGMENT TO KALEIDOSCOPIC SITUATIONS WHICH CHARACTERIZES THE LAW IN ITS
TREATMENT OF PROBLEMS OF CAUSATION."  GULLY V. FIRST NATIONAL BANK, 299
U.S. 109, 117. 

A FINAL OBJECTION TO THE DECISIONS BELOW NEED NOT DETAIN US LONG. 
THE PETITIONERS' BUILDINGS CANNOT BE REGARDED AS "SERVICE
ESTABLISHMENTS" WITHIN THE EXEMPTION OF SEC. 13(A)(2).  SELLING SPACE
IN A LOFT BUILDING IS NOT THE EQUIVALENT OF SELLING SERVICES TO
CONSUMERS, AND, IN ANY EVENT, THE "GREATER PART" OF THE "SERVICING"
DONE BY THE PETITIONERS HERE IS NOT IN INTRASTATE COMMERCE.  THE
SUGGESTION THAT THE ACT, IF APPLIED TO THESE EMPLOYEES, GOES BEYOND THE
BOUNDS OF THE COMMERCE POWER IS WITHOUT MERIT.  LABOR BOARD CASES, 301
U.S. 1; UNITED STATES V. DARBY, SUPRA; OPP COTTON MILLS V.
ADMINISTRATOR, SUPRA. 

IN BOTH CASES THE JUDGMENT IS AFFIRMED. 

FN1  COMPARE WARREN-BRADSHAW DRILLING CO. V. HALL, 124 F.2D 42;
KILLINGBECK V. GARMENT CENTER CAPITOL, INC., 259 APP. DIV. (N.Y.)  691,
20 N.Y.S.2D 521; ROBINSON V. MASSACHUSETTS MUT. LIFE INS. CO., 158
S.W.2D 441(TENN.); CECIL V. GRADISON, 40 N.E.2D 958(OHIO APP.);
PEDERSEN V. FITZGERALD CONSTRUCTION CO., 262 APP. DIV. (N.Y.)  665, 30
N.Y.S.2D 989. 

FN2  FOR THE GRADUAL DEVELOPMENT OF THIS EXTENSION OF FEDERAL
AUTHORITY, SEE SHEPARD V. NORTHERN PACIFIC RY. CO., 184 F. 765,
REVERSED SUB NOM. MINNESOTA RATE CASES, 230 U.S. 352; HOUSTON, E. &
W.T. RY. CO. V. UNITED STATES, 234 U.S. 342, AS APPLIED IN ILLINOIS
CENTRAL R. CO. V. PUBLIC UTILITIES COMM'N, 245 U.S. 493, AND AS
CONFIRMED BY SEC. 416 OF THE TRANSPORTATION ACT OF 1920, 41 STAT. 456,
484, AND AS EXTENDED BY SEC. 13(4) OF THE INTERSTATE COMMERCE ACT,
WISCONSIN RAILROAD COMM'N V. CHICAGO, B. & Q.R. CO., 257 U.S. 563. 

FN3  THE EXACT SCOPE OF THE PROVISIONS OF THE ACT DEALING WITH THE
COMPOSITION, AUTHORITY, AND PROCEDURE OF ADVISORY COMMITTEES IS NOT NOW
BEFORE US.  BUT, IN ANY EVENT, WE DO NOT FIND IN THEM ANY LIMITATION
UPON THE AREA OF REGULATION OUTLINED BY SECS. 6 AND 7. 

MR. JUSTICE ROBERTS: 

I DISSENT.  I THINK THE POWER OF CONGRESS DOES NOT REACH THE PURELY
LOCAL ACTIVITIES IN QUESTION.  IF IT DID, THE COMMERCE POWER ALONE
WOULD SUPPORT REGULATION OF ANY LOCAL ACTION, SINCE IT IS CONCEIVABLE
THAT SUCH ACTIVITY, HOWEVER REMOTELY, "AFFECTS" COMMERCE OR IS
"NECESSARY" TO THE PRODUCTION OF GOODS FOR COMMERCE. 

BUT I AM CONVINCED THAT CONGRESS NEVER INTENDED BY THE STATUTE TO
REACH THE EMPLOYEES OF THE PETITIONERS.  NEITHER THE WORDS OF THE ACT,
NOR ITS LEGISLATIVE HISTORY, NOR THE PURPOSE TO BE SERVED, REQUIRES THE
APPLICATION OF THE STATUTE IN THESE CASES. 
..END :
















HELVERING V. CEMENT INVESTORS, 316 U.S. 527 


NO. 644.  ARGUED APRIL 27, 1942.  - DECIDED JUNE 1, 1942.  - 122 F.2D
380, 416, AFFIRMED. 


A PLAN FOR THE REORGANIZATION OF A CORPORATION AND ITS WHOLLY-OWNED
SUBSIDIARY IN A PROCEEDING UNDER SEC. 77B OF THE BANKRUPTCY ACT,
PROVIDED FOR THE CREATION OF A NEW COMPANY WHICH WOULD ASSUME THE
OBLIGATIONS OF THE BONDS OF THE PARENT COMPANY AND WOULD ISSUE INCOME
BONDS AND COMMON STOCK IN EXCHANGE FOR THE FIRST MORTGAGE BONDS OF THE
SUBSIDIARY COMPANY, THE LATTER HAVING BEEN GUARANTEED AS TO PRINCIPAL
AND INTEREST BY THE PARENT COMPANY.  STOCKHOLDERS OF THE DEBTOR
COMPANIES WERE TO RECEIVE IN EXCHANGE FOR THEIR STOCK ONLY WARRANTS FOR
THE PURCHASE OF SHARES OF THE NEW COMPANY.  THE PLAN WAS CONFIRMED BY
THE BANKRUPTCY COURT AND WAS CONSUMMATED BY A CONVEYANCE OF THE ASSETS
OF THE OLD COMPANIES TO THE NEW BY THE DEBTOR COMPANIES, THE BANKRUPTCY
TRUSTEE, AND THE TRUSTEE UNDER THE INDENTURE SECURING THE BONDS OF THE
SUBSIDIARY COMPANY.  THE NEW SECURITIES WERE ISSUABLE TO, OR ON THE
ORDER OF, THE REORGANIZATION MANAGERS, ACTING AS "AGENTS" OF THE
SECURITY HOLDERS.  IMMEDIATELY AFTER THE CONSUMMATION OF THE PLAN, ALL
OF THE ISSUED SHARES OF THE NEW COMPANY (552,660 COMMON SHARES OF AN
AUTHORIZED 1,000,000) BELONGED TO THE FORMER HOLDERS OF THE BONDS OF
THE OLD SUBSIDIARY COMPANY.  NEARLY TWO YEARS LATER, ONLY 465 SHARES
HAD BEEN ISSUED TO HOLDERS OF WARRANTS.  HELD: 

1.  THE TRANSACTION WAS NOT A "REORGANIZATION" WITHIN SEC.
112(G)(1)(B) OF THE REVENUE ACT OF 1936(HELVERING V. SOUTHWEST
CONSOLIDATED CORP., 315 U.S. 194), NOR WITHIN SEC. 112(G)(1)(C) OF THAT
ACT.  P. 530. 

2.  THE TRANSACTION SATISFIES THE REQUIREMENTS OF SEC. 112(B)(5) OF
THE REVENUE ACT OF 1936, AND NO GAIN RESULTING THEREFROM TO HOLDERS OF
BONDS OF THE SUBSIDIARY COMPANY IS TO BE RECOGNIZED.  P. 531. 

THE LEGISLATIVE HISTORY OF SEC. 112(B)(5) SUPPORTS THIS CONCLUSION. 

3.  THE "REORGANIZATION" PROVISIONS OF THE REVENUE ACTS DO NOT
FURNISH THE EXCLUSIVE METHODS FOR SECURING A DEFERMENT OF GAINS OR
LOSSES ARISING OUT OF TRANSACTIONS POPULARLY KNOWN AS CORPORATE
READJUSTMENTS OR REORGANIZATIONS.  P. 533. 

4.  WHETHER A TAX LIABILITY IN THIS CASE MAY HAVE BEEN INCURRED UNDER
SEC. 112(A) - A QUESTION NOT FAIRLY WITHIN THE ISSUES AS FRAMED BY THE
COMMISSIONER, AND NOT DECIDED BELOW - IS NOT HERE DETERMINED.  P. 535. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. CEMENT INVESTORS,
INC.* 

*TOGETHER WITH NO. 645, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. JAMES Q. NEWTON TRUST, AND NO. 646, HELVERING, COMMISSIONER OF
INTERNAL REVENUE, V. NEWTON, ALSO ON WRITS OF CERTIORARI, 315 U.S. 825,
TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 315 U.S. 825, TO REVIEW AFFIRMANCES OF DECISIONS OF THE
BOARD OF TAX APPEALS, 42 B.T.A. 473, IN FAVOR OF THE TAXPAYERS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE ISSUE PRESENTED BY THESE CASES IS WHETHER, UNDER SEC. 112(B)(5)
OF THE REVENUE ACT OF 1936(49 STAT. 1648, 1678, 26 U.S.C. SEC.
112(B)(5)), THE GAIN OF THE TAXPAYERS FROM THE TRANSACTIONS IN QUESTION
SHOULD BE RECOGNIZED. 

THE TAXPAYERS OWNED FIRST MORTGAGE BONDS OF COLORADO INDUSTRIAL CO.,
WHICH WAS A WHOLLY-OWNED SUBSIDIARY OF THE COLORADO FUEL AND IRON CO.
THE BONDS WERE GUARANTEED BOTH AS TO PRINCIPAL AND INTEREST BY THE
PARENT COMPANY.  AFTER DEFAULTS ON THESE BONDS, AND ON OTHER BONDS
ISSUED BY THE PARENT COMPANY, EACH COMPANY FILED A PETITION UNDER SEC.
77B OF THE BANKRUPTCY ACT.  A PLAN OF REORGANIZATION WAS FORMULATED BY
COMMITTEES OF THE SECURITY HOLDERS.  IT PROVIDED FOR THE FORMATION OF A
NEW COMPANY, TO WHICH ALL THE ASSETS OF THE TWO DEBTOR COMPANIES WOULD
BE TRANSFERRED.  THE NEW COMPANY WOULD ASSUME THE OBLIGATIONS OF THE
BONDS OF THE OLD PARENT COMPANY, COLORADO FUEL AND IRON CO., AND ISSUE
INCOME BONDS AND COMMON STOCK IN EXCHANGE FOR THE BONDS OF THE OLD
SUBSIDIARY COMPANY, COLORADO INDUSTRIAL CO. THE STOCKHOLDERS OF THE
DEBTOR COMPANIES WOULD RECEIVE NO INTEREST IN THE NEW COMPANY; BUT IN
EXCHANGE FOR THEIR STOCK THEY WOULD RECEIVE WARRANTS FOR THE PURCHASE
OF SHARES OF THE NEW COMPANY.  APPROVAL OF THE PLAN BY THE REQUISITE
PERCENTAGE OF SECURITY HOLDERS WAS OBTAINED.  THE PLAN WAS CONFIRMED BY
THE COURT IN APRIL, 1936, AND WAS DULY CONSUMMATED AS FOLLOWS:  THE
DEBTOR COMPANIES, THE BANKRUPTCY TRUSTEE, AND THE TRUSTEE UNDER THE
INDENTURE SECURING THE BONDS OF THE OLD SUBSIDIARY COMPANY, CONVEYED
THE ASSETS OF THE DEBTORS TO THE NEW COMPANY.  THE NEW SECURITIES WERE
ISSUABLE TO, OR ON THE ORDER OF, THE REORGANIZATION MANAGERS, WHO WERE
ACTING, AS STATED IN THE PLAN, AS "AGENTS" OF THE SECURITY HOLDERS. 
THE REORGANIZATION MANAGERS EFFECTED AN EXCHANGE OF THE OLD SECURITIES
FOR THE NEW ON OR ABOUT SEPTEMBER 1, 1936.  IMMEDIATELY AFTER THE
CONSUMMATION OF THE PLAN, ALL OF THE ISSUED SHARES OF THE NEW COMPANY
(552,660 SHARES OF COMMON, OUT OF AN AUTHORIZED ISSUE OF 1,000,000
SHARES) BELONGED TO THE FORMER HOLDERS OF THE BONDS OF THE OLD
SUBSIDIARY COMPANY.  NO STOCK WAS ISSUED BY THE NEW COMPANY TO OTHER
PARTIES UNTIL OCTOBER, 1936, WHEN 37 SHARES WERE ISSUED ON EXERCISE OF
THE WARRANTS.  BY JUNE, 1938, ONLY 465 SHARES HAD BEEN ISSUED TO
HOLDERS OF THE WARRANTS. 

EACH OF THE TAXPAYERS IN THESE CASES EXCHANGED HIS COLORADO
INDUSTRIAL CO. BONDS FOR INCOME BONDS AND COMMON STOCK OF THE NEW
COMPANY IN EACH CASE, THE FAIR MARKET VALUE OF THE NEW SECURITIES
EXCEEDED THE BASIS OF THE OLD.  THE COMMISSIONER DETERMINED
DEFICIENCIES ON THE GROUND THAT THE PROFIT FROM THE EXCHANGE WAS A
TAXABLE GAIN.  THE BOARD OF TAX APPEALS HELD FOR THE TAXPAYERS.  SEE 42
B.T.A. 473.  THE CIRCUIT COURT OF APPEALS AFFIRMED (122 F.2D 380, 416),
HOLDING, INTER ALIA, THAT THE EXCHANGE MET THE REQUIREMENTS OF SEC.
112(B)(5).  WE GRANTED THE PETITIONS FOR CERTIORARI BECAUSE THE
APPLICATION OF SEC. 112(B)(5) TO RECEIVERSHIP OR BANKRUPTCY
REORGANIZATIONS RAISED IMPORTANT PROBLEMS IN THE ADMINISTRATION OF THE
INCOME TAX LAW. 

IT IS PLAIN FROM HELVERING V. SOUTHWEST CONSOLIDATED CORP., 315 U.S.
194, WHICH INVOLVED IDENTICAL DEFINITIONS OF THE TERM "REORGANIZATION"
AS ARE INVOLVED HERE, THAT THIS TRANSACTION DOES NOT MEET THE
REQUIREMENTS OF SEC. 112(G)(1)(B) OF THE 1936 ACT.  FN1  THE ASSETS OF
THE OLD COMPANIES WERE NOT ACQUIRED IN EXCHANGE "SOLELY" FOR VOTING
STOCK OF THE NEW COMPANY, SINCE INCOME BONDS AND WARRANTS WERE ALSO
ISSUED.  IT IS ALSO CLEAR THAT THE REQUIREMENTS OF SEC. 112(G)(1)(C)
WERE NOT SATISFIED, SINCE CLAUSE C "CONTEMPLATES THAT THE OLD
CORPORATION OR ITS STOCKHOLDERS, RATHER THAN ITS CREDITORS, SHALL BE IN
THE DOMINANT POSITION OF 'CONTROL' IMMEDIATELY AFTER THE TRANSFER AND
NOT EXCLUDED OR RELEGATED TO A MINORITY POSITION."  ID., P. 202.  BUT
IT DOES NOT NECESSARILY FOLLOW THAT SEC. 112(B)(5) IS INAPPLICABLE. 
SEC. 112(B)(5) PROVIDES: 

"NO GAIN OR LOSS SHALL BE RECOGNIZED IF PROPERTY IS TRANSFERRED TO A
CORPORATION BY ONE OR MORE PERSONS SOLELY IN EXCHANGE FOR STOCK OR
SECURITIES IN SUCH CORPORATION, AND IMMEDIATELY AFTER THE EXCHANGE SUCH
PERSON OR PERSONS ARE IN CONTROL OF THE CORPORATION; BUT IN THE CASE OF
AN EXCHANGE BY TWO OR MORE PERSONS THIS PARAGRAPH SHALL APPLY ONLY IF
THE AMOUNT OF THE STOCK AND SECURITIES RECEIVED BY EACH IS
SUBSTANTIALLY IN PROPORTION TO HIS INTEREST IN THE PROPERTY PRIOR TO
THE EXCHANGE." 

"CONTROL" IS DEFINED IN SEC. 112(H) TO MEAN 

"THE OWNERSHIP OF STOCK POSSESSING AT LEAST 80 PER CENTUM OF THE
TOTAL COMBINED VOTING POWER OF ALL CLASSES OF STOCK ENTITLED TO VOTE
AND AT LEAST 80 PER CENTUM OF THE TOTAL NUMBER OF SHARES OF ALL OTHER
CLASSES OF STOCK OF THE CORPORATION." 

IF IT MAY BE SAID THAT PROPERTY WAS TRANSFERRED BY THE BONDHOLDERS TO
THE NEW CORPORATION, THEN THE OTHER REQUIREMENTS OF SEC. 112(B)(5) WERE
SATISFIED.  FOR THE BONDHOLDERS, AS OWNERS OF ALL OF THE OUTSTANDING
SHARES OF THE NEW CORPORATION, WERE IN "CONTROL" OF IT "IMMEDIATELY
AFTER THE EXCHANGE."  AND IT HAS NOT BEEN DISPUTED THAT THE STOCK AND
INCOME BONDS ACQUIRED BY EACH BONDHOLDER WERE SUBSTANTIALLY IN
PROPORTION TO HIS INTEREST IN THE ASSETS OF THE DEBTOR COMPANIES PRIOR
TO THE EXCHANGE.  PETITIONER, HOWEVER, MAINTAINS THAT THE ONLY TRANSFER
WITHIN THE MEANING OF SEC. 112(B)(5) WAS EFFECTED BY THE DEBTOR
COMPANIES, THE BANKRUPTCY TRUSTEE, AND THE INDENTURE TRUSTEE; AND THAT
THE EXCHANGE OF THE BONDS FOR THE NEW SECURITIES WAS MERELY PART OF THE
MECHANICS FOR CONSUMMATION OF THE PLAN, AND NOT AN EXCHANGE BY WHICH
"PROPERTY" WAS TRANSFERRED TO THE NEW CORPORATION.  THOUGH WE AGREED
WITH THE LATTER PROPOSITION, IT WOULD NOT NECESSARILY FOLLOW THAT THE
REQUIREMENTS OF SEC. 112(B)(5) WERE NOT MET. 

IN CASE OF REORGANIZATIONS OF INSOLVENT CORPORATIONS, THE CREDITORS
HAVE THE RIGHT TO EXCLUDE THE STOCKHOLDERS ENTIRELY FROM THE
REORGANIZATION PLAN.  WHEN THE STOCKHOLDERS ARE EXCLUDED AND THE
CREDITORS OF THE OLD COMPANY BECOME THE STOCKHOLDERS OF THE NEW, "IT
CONFORMS TO REALITIES TO DATE THEIR EQUITY OWNERSHIP" FROM THE TIME
WHEN THE PROCESSES OF THE LAW WERE INVOKED "TO ENFORCE THEIR RIGHTS OF
FULL PRIORITY."  HELVERING V. ALABAMA ASPHALTIC LIMESTONE CO., 315 U.S.
179.  UNDER THAT APPROACH, THE OWNERSHIP OF THE EQUITY IN THESE DEBTOR
COMPANIES EFFECTIVELY PASSED TO THESE CREDITORS AT LEAST WHEN SEC. 77B
PROCEEDINGS WERE INSTITUTED.  BUT HOWEVER THEIR INTEREST IN THE
PROPERTY MAY BE DESCRIBED, IT CLEARLY WAS AN EQUITABLE CLAIM IN OR TO
IT.  IT WAS THAT EQUITABLE INTEREST WITH WHICH THE PLAN DEALT.  THE
TRANSFER OF THE PROPERTIES OF THE DEBTOR COMPANIES TO THE NEW
CORPORATION WAS MADE PURSUANT TO THAT PLAN.  THE PLAN WAS APPROVED BY
THE REQUISITE PERCENTAGE OF THESE CREDITORS, AS REQUIRED BY SEC.
77BE)(1) OF THE BANKRUPTCY ACT.  THUS IT IS FAIR TO SAY THAT THE
PROPERTY TRANSFERRED WAS PROPERTY IN WHICH THE CREDITORS HAD AN
EQUITABLE INTEREST, AND THAT THE TRANSFER WAS MADE WITH THEIR AUTHORITY
AND ON THEIR BEHALF.  CERTAINLY, "PROPERTY," AS USED IN SEC. 112(B)(5),
INCLUDES SUCH AN INTEREST IN PROPERTY.  AND WE SEE NO REASON TO
CONCLUDE THAT A BENEFICIAL OWNER OF, OR EQUITABLE CLAIMANT TO, PROPERTY
IS PRECLUDED FROM CONSUMMATING AN EXCHANGE WHICH QUALIFIES UNDER SEC.
112(B)(5) MERELY BECAUSE THE ACTUAL CONVEYANCE IS MADE BY HIS TRUSTEE
OR TITLE HOLDER.  IN SITUATIONS COMPARABLE TO THIS ONE, THE BOARD OF
TAX APPEALS HAS HELD THAT SEC. 112(B)(5) IS APPLICABLE.  LECKIE V.
COMMISSIONER, 37 B.T.A. 252; MILLER & PAINE V. COMMISSIONER, 42 B.T.A.
586.  CF. ROCKFORD BRICK & TILE CO. V. COMMISSIONER, 31 B.T.A. 537.  WE
ACCEPT ITS VIEW. 

THE LEGISLATIVE HISTORY OF SEC. 112(B)(5) SUPPORTS THAT CONCLUSION. 
SEC. 112(B)(5) AND THE "REORGANIZATION" PROVISIONS ARE RATHER CLOSELY
RELATED.  SEE MILLER, HENDRICKS, AND EVERETT, REORGANIZATIONS AND OTHER
EXCHANGES IN INCOME TAXATION (1931), CH. 6.  WHILE THE "REORGANIZATION"
PROVISIONS ARE RESTRICTED TO INTER-CORPORATE TRANSACTIONS, SEC.
112(B)(5) IS NOT SO CONFINED, SINCE THE PHRASE "ONE OR MORE PERSONS"
INCLUDES "INDIVIDUALS, TRUSTS OR ESTATES, PARTNERSHIPS AND
CORPORATIONS."  TREASURY REG. 94, ART. 112(B)(5)-1.  BUT THERE IS NO
INDICATION THAT THE "REORGANIZATION" PROVISIONS WERE DESIGNED AS THE
EXCLUSIVE METHOD OF DEFERRING RECOGNITION OF GAIN OR LOSS IN ALL CASES
OF CORPORATE READJUSTMENTS OR REORGANIZATIONS.  THE HISTORY OF SEC.
112(B)(5) MAKES CLEAR THAT IT TOO WAS DESIGNED TO FUNCTION IN THAT
FIELD (AMERICAN COMPRESS & WAREHOUSE CO. V. BENDER, 70 F.2D 655, 657
658) AND TO PERMIT DEFERMENT OF GAINS OR LOSSES WHERE "THERE HAS BEEN A
MERE CHANGE IN THE FORM OF OWNERSHIP" OR WHERE THE TAXPAYER HAS NOT
"CLOSED OUT A LOSING VENTURE."  PORTLAND OIL CO. V. COMMISSIONER, 109
F.2D 479, 488.  SEC. 112(B)(5) DERIVES FROM SEC. 202(C)(3) OF THE 1921
ACT.  42 STAT. 229, 230.  ITS LEGISLATIVE HISTORY SHOWS THAT IT WAS
DESIGNED TO PERMIT "READJUSTMENTS"  FN2  WITHOUT PRESENT RECOGNITION OF
GAIN OR LOSS BY ALLOWING PROPERTY TO BE TRANSFERRED TO A CONTROLLED
CORPORATION BY AN INDIVIDUAL, A PARTNERSHIP, A CORPORATION, OR OTHERS. 
FN3  SEE HEARINGS, SENATE COMMITTEE ON FINANCE, PROPOSED REVENUE ACT OF
1921, 67TH CONG., 1ST SESS., MAY 9-27, 1921, PP. 536-537, 546, 557-558;
MAGILL, TAXABLE INCOME (1936), PP. 123-131.  IF A TRANSACTION MEETS THE
REQUIREMENTS OF SEC. 112(B)(5), THE BASIS OF THE PROPERTY IN THE HANDS
OF THE ACQUIRING CORPORATION IS THE SAME AS IT WOULD BE IN THE HANDS OF
THE TRANSFEROR.  SEC. 113(A)(8).  SEE P. A. BIRREN & SON, INC. V.
COMMISSIONER, 116 F.2D 718.  A SIMILAR RESULT OBTAINS IN CASE OF A
TRANSACTION WHICH QUALIFIES AS A "REORGANIZATION."  SEE SEC.
113(A)(7)(B).  AND THE THEORY UNDERLYING THE TWO BASIS PROVISIONS IS
THE SAME.  MILLER, HENDRICKS, AND EVERETT, OP. CIT., PP. 304, 404; S.
REP. NO. 398, 68TH CONG., 1ST SESS., COMMITTEE REPORTS ON THE REVENUE
ACTS, 1913-1938, INT. REV. BULL., PP. 278-279.  THE CLOSE RELATIONSHIP
BETWEEN SEC. 112(B)(5) AND THE "REORGANIZATION" PROVISIONS IS FURTHER
EVIDENCED BY THE FACT THAT THEY OVERLAP TO A DEGREE.  THUS, A
TRANSACTION WHICH MEETS THE REQUIREMENTS OF CLAUSE B OR CLAUSE C OF
SEC. 112(G)(1) MAY ALSO QUALIFY UNDER SEC. 112(B)(5).  IN SHORT, THE
"REORGANIZATION" PROVISIONS DO NOT FURNISH THE EXCLUSIVE METHODS FOR
SECURING A DEFERMENT OF GAINS OR LOSSES ARISING OUT OF TRANSACTIONS
POPULARLY KNOWN AS CORPORATE READJUSTMENTS OR REORGANIZATIONS.  THE
INSTANT TRANSACTION COMES FAIRLY WITHIN THE FAMILY OF BUSINESS
READJUSTMENTS FOR WHICH SEC. 112(B)(5) WAS DESIGNED.  HENCE THE FACT
THAT IT CANNOT MEET THE STATUTORY STANDARDS OF A "REORGANIZATION" DOES
NOT NECESSARILY MEAN THAT IT CANNOT QUALIFY AS AN "EXCHANGE," ANY MORE
THAN THE FAILURE TO SATISFY ONE CLAUSE OF THE "REORGANIZATION"
PROVISIONS MEANS THAT NONE CAN BE SATISFIED. 

BUT THE ARGUMENT SEEMS TO BE THAT, EVEN THOUGH THERE WAS AN
"EXCHANGE" WHICH MET THE REQUIREMENTS OF SEC. 112(B)(5), THERE WAS
NEVERTHELESS A GAIN WHICH IS TAXABLE.  THAT GAIN, IT IS SUGGESTED,
AROSE FROM THE ACQUISITION BY THE TAXPAYERS OF THEIR EQUITABLE INTEREST
IN THE PROPERTIES IN SUBSTITUTION FOR THEIR OLD BONDS.  AND IT IS
ARGUED THAT, UNLIKE THE SITUATION WHICH OBTAINS UNDER THE
"REORGANIZATION" PROVISIONS (HELVERING V. ALABAMA ASPHALTIC LIMESTONE
CO., SUPRA), SEC. 112(B)(5) COVERS ONLY THE EXCHANGE ITSELF AND NOT THE
ANTECEDENT STEPS IN CONNECTION WITH A PLAN OF REORGANIZATION.  THUS THE
CONTENTION SEEMS TO BE THAT, SINCE A GAIN AROSE FROM A TRANSACTION
WHICH WAS SEPARATE AND DISTINCT FROM AND ANTERIOR TO THE EXCHANGE OF
PROPERTY FOR THE NEW SECURITIES, IT MUST BE RECOGNIZED UNDER THE
GENERAL RULE OF SEC. 112(A).  WE EXPRESS NO VIEW ON THAT CONTENTION. 
THE DEFICIENCIES WERE NOT ASSESSED ON THAT TRANSACTION BUT ONLY UPON
THE EXCHANGE OF STOCK AND SECURITIES IN THE NEW CORPORATION FOR BONDS
OF THE OLD.  WE WILL NOT CONSIDER HERE FOR THE FIRST TIME THE QUESTION
WHETHER A TAX LIABILITY MAY HAVE BEEN INCURRED UNDER SEC. 112(A) BY
REASON OF THE EARLIER TRANSACTION, A QUESTION NOT FAIRLY WITHIN THE
ISSUES AS FRAMED BY THE COMMISSIONER AND HENCE NOT DECIDED BELOW.  CF.
HELVERING V. WOOD, 309 U.S. 344, 349.  AFFIRMED. 

FN1  IN HELVERING V. SOUTHWEST CONSOLIDATED CORP., SUPRA, NO QUESTION
AS TO THE APPLICABILITY OF SEC. 112(B)(5) WAS INVOLVED.  THE ONLY
QUESTION RAISED OR CONSIDERED BY THE BOARD OR THE CIRCUIT COURT OF
APPEALS, OR PASSED ON BY THIS COURT, WAS WHETHER OR NOT THE TRANSACTION
IN QUESTION QUALIFIED AS A "REORGANIZATION" UNDER SEC. 112(G)(1) OF THE
1934 ACT. 

FN2  H. REP. NO. 350, 67TH CONG., 1ST SESS.; S. REP. NO. 275, 67TH
CONG., 1ST SESS., COMMITTEE REPORTS ON THE REVENUE ACTS, 1913-1938,
INT. REV. BULL., PP. 175-176, 188-189.    FN3  FOR THE RESULT WHICH
WOULD OTHERWISE OBTAIN IN SUCH SITUATIONS, SEE INSURANCE & TITLE
GUARANTEE CO. V. COMMISSIONER, 36 F.2D 842, AND CASES CITED. 
..END :






SKINNER V. OKLAHOMA, 316 U.S. 535 


NO. 782.  ARGUED MAY 6, 1942.  - DECIDED JUNE 1, 1942.  - 189 OKLA. 235,
115 P.2D 123, REVERSED. 


1.  A STATUTE OF OKLAHOMA PROVIDES FOR THE STERILIZATION, BY VASECTOMY
OR SALPINGECTOMY, OF "HABITUAL CRIMINALS" - AN HABITUAL CRIMINAL BEING
DEFINED THEREIN AS ANY PERSON WHO, HAVING BEEN CONVICTED TWO OR MORE
TIMES, IN OKLAHOMA OR IN ANY OTHER STATE, OF "FELONIES INVOLVING MORAL
TURPITUDE," IS THEREAFTER CONVICTED AND SENTENCED TO IMPRISONMENT IN
OKLAHOMA FOR SUCH A CRIME.  EXPRESSLY EXCEPTED FROM THE TERMS OF THE
STATUTE ARE CERTAIN OFFENSES, INCLUDING EMBEZZLEMENT.  AS APPLIED TO
ONE WHO WAS CONVICTED ONCE OF STEALING CHICKENS AND TWICE OF ROBBERY,
HELD THAT THE STATUTE VIOLATED THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  P. 537. 

2.  THE STATE SUPREME COURT HAVING SUSTAINED THE ACT, AS APPLIED TO
THE PETITIONER HERE, WITHOUT REFERENCE TO A SEVERABILITY CLAUSE, THE
QUESTION WHETHER THAT CLAUSE WOULD BE SO APPLIED AS TO REMOVE THE
PARTICULAR CONSTITUTIONAL OBJECTION IS ONE WHICH MAY APPROPRIATELY BE
LEFT FOR ADJUDICATION BY THE STATE COURT.  P. 542. 

SKINNER V. OKLAHOMA EX REL. WILLIAMSON, ATTORNEY GENERAL. 

CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. 

CERTIORARI, 315 U.S. 789, TO REVIEW THE AFFIRMANCE OF A JUDGMENT IN A
PROCEEDING UNDER THE OKLAHOMA HABITUAL CRIMINAL STERILIZATION ACT,
WHEREIN IT WAS ORDERED THAT THE DEFENDANT (PETITIONER HERE) BE MADE
STERILE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE TOUCHES A SENSITIVE AND IMPORTANT AREA OF HUMAN RIGHTS. 
OKLAHOMA DEPRIVES CERTAIN INDIVIDUALS OF A RIGHT WHICH IS BASIC TO THE
PERPETUATION OF A RACE - THE RIGHT TO HAVE OFFSPRING.  OKLAHOMA HAS
DECREED THE ENFORCEMENT OF ITS LAW AGAINST PETITIONER, OVERRULING HIS
CLAIM THAT IT VIOLATED THE FOURTEENTH AMENDMENT.  BECAUSE THAT DECISION
RAISED GRAVE AND SUBSTANTIAL CONSTITUTIONAL QUESTIONS, WE GRANTED THE
PETITION FOR CERTIORARI. 

THE STATUTE INVOLVED IS OKLAHOMA'S HABITUAL CRIMINAL STERILIZATION
ACT.  OKLA. STAT. ANN. TIT. 57, SECS. 171, ET SEQ.; L. 1935, PP. 94 ET
SEQ. THAT ACT DEFINES AN "HABITUAL CRIMINAL" AS A PERSON WHO, HAVING
BEEN CONVICTED TWO OR MORE TIMES FOR CRIMES "AMOUNTING TO FELONIES
INVOLVING MORAL TURPITUDE," EITHER IN AN OKLAHOMA COURT OR IN A COURT
OF ANY OTHER STATE, IS THEREAFTER CONVICTED OF SUCH A FELONY IN
OKLAHOMA AND IS SENTENCED TO A TERM OF IMPRISONMENT IN AN OKLAHOMA
PENAL INSTITUTION.  SEC. 173.  MACHINERY IS PROVIDED FOR THE
INSTITUTION BY THE ATTORNEY GENERAL OF A PROCEEDING AGAINST SUCH A
PERSON IN THE OKLAHOMA COURTS FOR A JUDGMENT THAT SUCH PERSON SHALL BE
RENDERED SEXUALLY STERILE.  SECS. 176, 177.  NOTICE, AN OPPORTUNITY TO
BE HEARD, AND THE RIGHT TO A JURY TRIAL ARE PROVIDED.  SECS. 177-181. 
THE ISSUES TRIABLE IN SUCH A PROCEEDING ARE NARROW AND CONFINED.  IF
THE COURT OR JURY FINDS THAT THE DEFENDANT IS AN "HABITUAL CRIMINAL"
AND THAT HE "MAY BE RENDERED SEXUALLY STERILE WITHOUT DETERIMENT TO HIS
OR HER GENERAL HEALTH," THEN THE COURT "SHALL RENDER JUDGMENT TO THE
EFFECT THAT SAID DEFENDANT BE RENDERED SEXUALLY STERILE" (SEC. 182) BY
THE OPERATION OF VASECTOMY IN CASE OF A MALE, AND OF SALPINGECTOMY IN
CASE OF A FEMALE.  SEC. 174.  ONLY ONE OTHER PROVISION OF THE ACT IS
MATERIAL HERE, AND THAT IS SEC. 195, WHICH PROVIDES THAT "OFFENSES
ARISING OUT OF THE VIOLATION OF THE PROHIBITORY LAWS, REVENUE ACTS,
EMBEZZLEMENT, OR POLITICAL OFFENSES, SHALL NOT COME OR BE CONSIDERED
WITHIN THE TERMS OF THIS ACT." 

PETITIONER WAS CONVICTED IN 1926 OF THE CRIME OF STEALING CHICKENS,
AND WAS SENTENCED TO THE OKLAHOMA STATE REFORMATORY.  IN 1929 HE WAS
CONVICTED OF THE CRIME OF ROBBERY WITH FIREARMS, AND WAS SENTENCED TO
THE REFORMATORY.  IN 1934 HE WAS CONVICTED AGAIN OF ROBBERY WITH
FIREARMS, AND WAS SENTENCED TO THE PENITENTIARY.  HE WAS CONFINED THERE
IN 1935 WHEN THE ACT WAS PASSED.  IN 1936 THE ATTORNEY GENERAL
INSTITUTED PROCEEDINGS AGAINST HIM.  PETITIONER IN HIS ANSWER
CHALLENGED THE ACT AS UNCONSTITUTIONAL BY REASON OF THE FOURTEENTH
AMENDMENT.  A JURY TRIAL WAS HAD.  THE COURT INSTRUCTED THE JURY THAT
THE CRIMES OF WHICH PETITIONER HAD BEEN CONVICTED WERE FELONIES
INVOLVING MORAL TURPITUDE, AND THAT THE ONLY QUESTION FOR THE JURY WAS
WHETHER THE OPERATION OF VASECTOMY COULD BE PERFORMED ON PETITIONER
WITHOUT DETRIMENT TO HIS GENERAL HEALTH.  THE JURY FOUND THAT IT COULD
BE.  A JUDGMENT DIRECTING THAT THE OPERATION OF VASECTOMY BE PERFORMED
ON PETITIONER WAS AFFIRMED BY THE SUPREME COURT OF OKLAHOMA BY A FIVE
TO FOUR DECISION.  189 OKLA. 235, 115 P.2D 123. 

SEVERAL OBJECTIONS TO THE CONSTITUTIONALITY OF THE ACT HAVE BEEN
PRESSED UPON US.  IT IS URGED THAT THE ACT CANNOT BE SUSTAINED AS AN
EXERCISE OF THE POLICE POWER, IN VIEW OF THE STATE OF SCIENTIFIC
AUTHORITIES RESPECTING INHERITABILITY OF CRIMINAL TRAITS.  FN1  IT IS
ARGUED THAT DUE PROCESS IS LACKING BECAUSE, UNDER THIS ACT, UNLIKE THE
ACT  FN2  UPHELD IN BUCK V. BELL, 274 U.S. 200, THE DEFENDANT IS GIVEN
NO OPPORTUNITY TO BE HEARD ON THE ISSUE AS TO WHETHER HE IS THE
PROBABLE POTENTIAL PARENT OF SOCIALLY UNDESIRABLE OFFSPRING.  SEE DAVIS
V. BERRY, 216 F. 413; WILLIAMS V. SMITH, 190 IND. 526, 131 N.E. 2.  IT
IS ALSO SUGGESTED THAT THE ACT IS PENAL IN CHARACTER AND THAT THE
STERILIZATION PROVIDED FOR IS CRUEL AND UNUSUAL PUNISHMENT AND
VIOLATIVE OF THE FOURTEENTH AMENDMENT.  SEE DAVIS V. BERRY, SUPRA.  CF.
STATE V. FEILEN, 70 WASH. 65, 126 P. 75; MICKLE V. HENRICHS, 262 F.
687.  WE PASS THOSE POINTS WITHOUT INTIMATING AN OPINION ON THEM, FOR
THERE IS A FEATURE OF THE ACT WHICH CLEARLY CONDEMNS IT.  THAT IS, ITS
FAILURE TO MEET THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT. 

WE DO NOT STOP TO POINT OUT ALL OF THE INEQUALITIES IN THIS ACT.  A
FEW EXAMPLES WILL SUFFICE.  IN OKLAHOMA, GRAND LARCENY IS A FELONY. 
OKLA. STATS. ANN. TIT. 21, SECS. 1705, 5.  LARCENY IS GRAND LARCENY
WHEN THE PROPERTY TAKEN EXCEEDS $20 IN VALUE.  ID. SEC. 1704. 
EMBEZZLEMENT IS PUNISHABLE "IN THE MANNER PRESCRIBED FOR FELONIOUSLY
STEALING PROPERTY OF THE VALUE OF THAT EMBEZZLED."  ID. SEC. 1462. 
HENCE, HE WHO EMBEZZLES PROPERTY WORTH MORE THAN $20 IS GUILTY OF A
FELONY.  A CLERK WHO APPROPRIATES OVER $20 FROM HIS EMPLOYER'S TILL
(ID. SEC. 1456) AND A STRANGER WHO STEALS THE SAME AMOUNT ARE THUS BOTH
GUILTY OF FELONIES.  IF THE LATTER REPEATS HIS ACT AND IS CONVICTED
THREE TIMES, HE MAY BE STERILIZED.  BUT THE CLERK IS NOT SUBJECT TO THE
PAINS AND PENALTIES OF THE ACT NO MATTER HOW LARGE HIS EMBEZZLEMENTS
NOR HOW FREQUENT HIS CONVICTIONS.  A PERSON WHO ENTERS A CHICKEN COOP
AND STEALS CHICKENS COMMITS A FELONY (ID. SEC. 1719); AND HE MAY BE
STERILIZED IF HE IS THRICE CONVICTED.  IF, HOWEVER, HE IS A BAILEE OF
THE PROPERTY AND FRAUDULENTLY APPROPRIATES IT, HE IS AN EMBEZZLER.  ID.
SEC. 1455.  HENCE, NO MATTER HOW HABITUAL HIS PROCLIVITIES FOR
EMBEZZLEMENT ARE AND NO MATTER HOW OFTEN HIS CONVICTION, HE MAY NOT BE
STERILIZED.  THUS, THE NATURE OF THE TWO CRIMES IS INTRINSICALLY THE
SAME AND THEY ARE PUNISHABLE IN THE SAME MANNER.  FURTHERMORE, THE LINE
BETWEEN THEM FOLLOWS CLOSE DISTINCTIONS - DISTINCTIONS COMPARABLE TO
THOSE HIGHLY TECHNICAL ONES WHICH SHAPED THE COMMON LAW AS TO
"TRESPASS" OR "TAKING."  BISHOP, CRIMINAL LAW (9TH ED.)  VOL.  2, SECS.
760, 799, ET SEQ. THERE MAY BE LARCENY BY FRAUD RATHER THAN
EMBEZZLEMENT EVEN WHERE THE OWNER OF THE PERSONAL PROPERTY DELIVERS IT
TO THE DEFENDANT, IF THE LATTER HAS AT THAT TIME "A FRAUDULENT
INTENTION TO MAKE USE OF THE POSSESSION AS A MEANS OF CONVERTING SUCH
PROPERTY TO HIS OWN USE, AND DOES SO CONVERT IT."  BIVENS V. STATE, 6
OKLA. CR. 521, 529, 120 P. 1033, 1036.  IF THE FRAUDULENT INTENT OCCURS
LATER AND THE DEFENDANT CONVERTS THE PROPERTY, HE IS GUILTY OF
EMBEZZLEMENT.  BIVENS V. STATE, SUPRA; FLOHR V. TERRITORY, 14 OKLA.
477, 78 P. 565.  WHETHER A PARTICULAR ACT IS LARCENY BY FRAUD OR
EMBEZZLEMENT THUS TURNS NOT ON THE INTRINSIC QUALITY OF THE ACT BUT ON
WHEN THE FELONIOUS INTENT AROSE - A QUESTION FOR THE JURY UNDER
APPROPRIATE INSTRUCTIONS.  BIVENS V. STATE, SUPRA; RILEY V. STATE, 64
OKLA. CR. 183, 78 P.2D 712. 

IT WAS STATED IN BUCK V. BELL, SUPRA, THAT THE CLAIM THAT STATE
LEGISLATION VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT IS "THE USUAL LAST RESORT OF CONSTITUTIONAL ARGUMENTS."  274
U.S. P. 208.  UNDER OUR CONSTITUTIONAL SYSTEM THE STATES IN DETERMINING
THE REACH AND SCOPE OF PARTICULAR LEGISLATION NEED NOT PROVIDE
"ABSTRACT SYMMETRY."  PATSONE V. PENNSYLVANIA, 232 U.S. 138, 144.  THEY
MAY MARK AND SET APART THE CLASSES AND TYPES OF PROBLEMS ACCORDING TO
THE NEEDS AND AS DICTATED OR SUGGESTED BY EXPERIENCE.  SEE BRYANT V.
ZIMMERMAN, 278 U.S. 63, AND CASES CITED.  IT WAS IN THAT CONNECTION
THAT MR. JUSTICE HOLMES, SPEAKING FOR THE COURT IN BAIN PEANUT CO. V.
PINSON, 282 U.S. 499, 501, STATED, "WE MUST REMEMBER THAT THE MACHINERY
OF GOVERNMENT WOULD NOT WORK IF IT WERE NOT ALLOWED A LITTLE PLAY IN
ITS JOINTS."  ONLY RECENTLY WE REAFFIRMED THE VIEW THAT THE EQUAL
PROTECTION CLAUSE DOES NOT PREVENT THE LEGISLATURE FROM RECOGNIZING
"DEGREES OF EVIL" (TRUAX V. RAICH, 239 U.S. 33, 43) BY OUR RULING IN
TIGNER V. TEXAS, 310 U.S. 141, 147, THAT "THE CONSTITUTION DOES NOT
REQUIRE THINGS WHICH ARE DIFFERENT IN FACT OR OPINION TO BE TREATED IN
LAW AS THOUGH THEY WERE THE SAME."  AND SEE NASHVILLE, C. & ST. L. RY.
V. BROWNING, 310 U.S. 362.  THUS, IF WE HAD HERE ONLY A QUESTION AS TO
A STATE'S CLASSIFICATION OF CRIMES, SUCH AS EMBEZZLEMENT OR LARCENY, NO
SUBSTANTIAL FEDERAL QUESTION WOULD BE RAISED.  SEE MOORE V. MISSOURI,
159 U.S. 673; HAWKER V. NEW YORK, 170 U.S. 189; FINLEY V. CALIFORNIA,
222 U.S. 28; PATSONE V. PENNSYLVANIA, SUPRA. FOR A STATE IS NOT
CONSTRAINED IN THE EXERCISE OF ITS POLICE POWER TO IGNORE EXPERIENCE
WHICH MARKS A CLASS OF OFFENDERS OR A FAMILY OF OFFENSES FOR SPECIAL
TREATMENT.  NOR IS IT PREVENTED BY THE EQUAL PROTECTION CLAUSE FROM
CONFINING "ITS RESTRICTIONS TO THOSE CLASSES OF CASES WHERE THE NEED IS
DEEMED TO BE CLEAREST."  MILLER V. WILSON, 236 U.S. 373, 384.  AND SEE
MCLEAN V. ARKANSAS, 211 U.S. 539.  AS STATED IN BUCK V. BELL, SUPRA, P.
208, "  ...  THE LAW DOES ALL THAT IS NEEDED WHEN IT DOES ALL THAT IT
CAN, INDICATES A POLICY, APPLIES IT TO ALL WITHIN THE LINES, AND SEEKS
TO BRING WITHIN THE LINES ALL SIMILARLY SITUATED SO FAR AND SO FAST AS
ITS MEANS ALLOW." 

BUT THE INSTANT LEGISLATION RUNS AFOUL OF THE EQUAL PROTECTION
CLAUSE, THOUGH WE GIVE OKLAHOMA THAT LARGE DEFERENCE WHICH THE RULE OF
THE FOREGOING CASES REQUIRES.  WE ARE DEALING HERE WITH LEGISLATION
WHICH INVOLVES ONE OF THE BASIC CIVIL RIGHTS OF MAN.  MARRIAGE AND
PROCREATION ARE FUNDAMENTAL TO THE VERY EXISTENCE AND SURVIVAL OF THE
RACE.  THE POWER TO STERILIZE, IF EXERCISED, MAY HAVE SUBTLE, FAR
REACHING AND DEVASTATING EFFECTS.  IN EVIL OR RECKLESS HANDS IT CAN
CAUSE RACES OR TYPES WHICH ARE INIMICAL TO THE DOMINANT GROUP TO WITHER
AND DISAPPEAR.  THERE IS NO REDEMPTION FOR THE INDIVIDUAL WHOM THE LAW
TOUCHES.  ANY EXPERIMENT WHICH THE STATE CONDUCTS IS TO HIS IRREPARABLE
INJURY.  HE IS FOREVER DEPRIVED OF A BASIC LIBERTY.  WE MENTION THESE
MATTERS NOT TO REEXAMINE THE SCOPE OF THE POLICE POWER OF THE STATES. 
WE ADVERT TO THEM MERELY IN EMPHASIS OF OUR VIEW THAT STRICT SCRUTINY
OF THE CLASSIFICATION WHICH A STATE MAKES IN A STERILIZATION LAW IS
ESSENTIAL, LEST UNWITTINGLY, OR OTHERWISE, INVIDIOUS DISCRIMINATIONS
ARE MADE AGAINST GROUPS OR TYPES OF INDIVIDUALS IN VIOLATION OF THE
CONSTITUTIONAL GUARANTY OF JUST AND EQUAL LAWS.  THE GUARANTY OF "EQUAL
PROTECTION OF THE LAWS IS A PLEDGE OF THE PROTECTION OF EQUAL LAWS." 
YICK WO V. HOPKINS, 118 U.S. 356, 369.  WHEN THE LAW LAYS AN UNEQUAL
HAND ON THOSE WHO HAVE COMMITTED INTRINSICALLY THE SAME QUALITY OF
OFFENSE AND STERILIZES ONE AND NOT THE OTHER, IT HAS MADE AS INVIDIOUS
A DISCRIMINATION AS IF IT HAD SELECTED A PARTICULAR RACE OR NATIONALITY
FOR OPPRESSIVE TREATMENT.  YICK WO V. HOPKINS, SUPRA; GAINES V. CANADA,
305 U.S. 337.  STERILIZATION OF THOSE WHO HAVE THRICE COMMITTED GRAND
LARCENY, WITH IMMUNITY FOR THOSE WHO ARE EMBEZZLERS, IS A CLEAR,
POINTED, UNMISTAKABLE DISCRIMINATION.  OKLAHOMA MAKES NO ATTEMPT TO SAY
THAT HE WHO COMMITS LARCENY BY TRESPASS OR TRICK OR FRAUD HAS
BIOLOGICALLY INHERITABLE TRAITS WHICH HE WHO COMMITS EMBEZZLEMENT
LACKS.  OKLAHOMA'S LINE BETWEEN LARCENY BY FRAUD AND EMBEZZLEMENT IS
DETERMINED, AS WE HAVE NOTED, "WITH REFERENCE TO THE TIME WHEN THE
FRAUDULENT INTENT TO CONVERT THE PROPERTY TO THE TAKER'S OWN USE"
ARISES.  RILEY V. STATE, SUPRA, 64 OKLA. CR. AT P. 189, 78 P.2D P.
715.  WE HAVE NOT THE SLIGHTEST BASIS FOR INFERRING THAT THAT LINE HAS
ANY SIGNIFICANCE IN EUGENICS, NOR THAT THE INHERITABILITY OF CRIMINAL
TRAITS FOLLOWS THE NEAT LEGAL DISTINCTIONS WHICH THE LAW HAS MARKED
BETWEEN THOSE TWO OFFENSES.  IN TERMS OF FINES AND IMPRISONMENT, THE
CRIMES OF LARCENY AND EMBEZZLEMENT RATE THE SAME UNDER THE OKLAHOMA
CODE.  ONLY WHEN IT COMES TO STERILIZATION ARE THE PAINS AND PENALTIES
OF THE LAW DIFFERENT.  THE EQUAL PROTECTION CLAUSE WOULD INDEED BE A
FORMULA OF EMPTY WORDS IF SUCH CONSPICUOUSLY ARTIFICIAL LINES COULD BE
DRAWN.  SEE SMITH V. WAYNE PROBATE JUDGE, 231 MICH. 409, 420-421, 204
N.W. 40.  IN BUCK V. BELL, SUPRA, THE VIRGINIA STATUTE WAS UPHELD
THOUGH IT APPLIED ONLY TO FEEBLE-MINDED PERSONS IN INSTITUTIONS OF THE
STATE.  BUT IT WAS POINTED OUT THAT "SO FAR AS THE OPERATIONS ENABLE
THOSE WHO OTHERWISE MUST BE KEPT CONFINED TO BE RETURNED TO THE WORLD,
AND THUS OPEN THE ASYLUM TO OTHERS, THE EQUALITY AIMED AT WILL BE MORE
NEARLY REACHED."  274 U.S. P. 208.  HERE THERE IS NO SUCH SAVING
FEATURE.  EMBEZZLERS ARE FOREVER FREE.  THOSE WHO STEAL OR TAKE IN
OTHER WAYS ARE NOT.  IF SUCH A CLASSIFICATION WERE PERMITTED, THE
TECHNICAL COMMON LAW CONCEPT OF A "TRESPASS" (BISHOP, CRIMINAL LAW, 9TH
ED., VOL. 1, SECS. 566, 567) BASED ON DISTINCTIONS WHICH ARE "VERY
LARGELY DEPENDENT UPON HISTORY FOR EXPLANATION" (HOLMES, THE COMMON
LAW, P. 73) COULD READILY BECOME A RULE OF HUMAN GENETICS. 

IT IS TRUE THAT THE ACT HAS A BROAD SEVERABILITY CLAUSE.  FN3  BUT WE
WILL NOT ENDEAVOR TO DETERMINE WHETHER ITS APPLICATION WOULD SOLVE THE
EQUAL PROTECTION DIFFICULTY.  THE SUPREME COURT OF OKLAHOMA SUSTAINED
THE ACT WITHOUT REFERENCE TO THE SEVERABILITY CLAUSE.  WE HAVE
THEREFORE A SITUATION WHERE THE ACT AS CONSTRUED AND APPLIED TO
PETITIONER IS ALLOWED TO PERPETUATE THE DISCRIMINATION WHICH WE HAVE
FOUND TO BE FATAL.  WHETHER THE SEVERABILITY CLAUSE WOULD BE SO APPLIED
AS TO REMOVE THIS PARTICULAR CONSTITUTIONAL OBJECTION IS A QUESTION
WHICH MAY BE MORE APPROPRIATELY LEFT FOR ADJUDICATION BY THE OKLAHOMA
COURT.  DORCHY V. KANSAS, 264 U.S. 286.  THAT IS REEMPHASIZED HERE BY
OUR UNCERTAINTY AS TO WHAT EXCISION, IF ANY, WOULD BE MADE AS A MATTER
OF OKLAHOMA LAW.  CF. SMITH V. CAHOON, 283 U.S. 553.  IT IS BY NO MEANS
CLEAR WHETHER, IF AN EXCISION WERE MADE, THIS PARTICULAR CONSTITUTIONAL
DIFFICULTY MIGHT BE SOLVED BY ENLARGING ON THE ONE HAND OR CONTRACTING
ON THE OTHER (CF. MR. JUSTICE BRANDEIS DISSENTING, NATIONAL LIFE INS.
CO. V. UNITED STATES, 277 U.S. 508, 534-535) THE CLASS OF CRIMINALS WHO
MIGHT BE STERILIZED.  REVERSED. 

FN1  HEALY, THE INDIVIDUAL DELINQUENT (1915), PP. 188-200;
SUTHERLAND, CRIMINOLOGY (1924), PP. 112-118, 621-622; GILLIN,
CRIMINOLOGY AND PENOLOGY (1926), C. IX; POPENOE, STERILIZATION AND
CRIMINALITY, 53 REP. AM. BAR.  ASSOC.  575; MYERSON ET AL., EUGENICAL
STERILIZATION (1936), C. VIII; LANDMAN, HUMAN STERILIZATION (1932), C.
IX; SUMMARY OF THE REPORT OF THE AMERICAN NEUROLOGICAL ASSOCIATION
COMMITTEE FOR THE INVESTIGATION OF STERILIZATION, 1 AM. JOURN.  MED. 
JUR. 253(1938). 

FN2  AND SEE STATE V. TROUTMAN, 50 IDA.  673, 299 P. 668;
CHAMBERLAIN, EUGENICS IN LEGISLATURES AND COURTS, 15 AM. BAR ASSN.
JOURN.  165; CASTLE, THE LAW AND HUMAN STERILIZATION, 53 REP. AM. BAR
ASSOC., 556, 572; 2 BILL OF RIGHTS REVIEW 54. 

FN3  SEC. 194 PROVIDES: 

"IF ANY SECTION, SUB-SECTION, PARAGRAPH, SENTENCE, CLAUSE OR PHRASE
OF THIS ACT SHALL BE DECLARED UNCONSTITUTIONAL, OR VOID FOR ANY OTHER
REASON BY ANY COURT OF FINAL JURISDICTION, SUCH FACT SHALL NOT IN ANY
MANNER INVALIDATE OR AFFECT ANY OTHER OR THE REMAINING PORTIONS OF THIS
ACT, BUT THE SAME SHALL CONTINUE IN FULL FORCE AND EFFECT.  THE
LEGISLATURE HEREBY DECLARES THAT IT WOULD HAVE PASSED THIS ACT, AND
EACH SECTION, SUBSECTION, PARAGRAPH, SENTENCE, CLAUSE OR PHRASE
THEREOF, IRRESPECTIVE OF THE FACT THAT ANY ONE OR MORE OTHER SECTIONS,
SUB-SECTIONS, PARAGRAPHS, SENTENCES, CLAUSES OR PHRASES BE DECLARED
UNCONSTITUTIONAL." 

MR. CHIEF JUSTICE STONE, CONCURRING: 

I CONCUR IN THE RESULT, BUT I AM NOT PERSUADED THAT WE ARE AIDED IN
REACHING IT BY RECOURSE TO THE EQUAL PROTECTION CLAUSE. 

IF OKLAHOMA MAY RESORT GENERALLY TO THE STERILIZATION OF CRIMINALS ON
THE ASSUMPTION THAT THEIR PROPENSITIES ARE TRANSMISSIBLE TO FUTURE
GENERATIONS BY INHERITANCE, I SERIOUSLY DOUBT THAT THE EQUAL PROTECTION
CLAUSE REQUIRES IT TO APPLY THE MEASURE TO ALL CRIMINALS IN THE FIRST
INSTANCE, OR TO NONE.  SEE ROSENTHAL V. NEW YORK, 226 U.S. 260, 271;
KEOKEE COKE CO. V. TAYLOR, 234 U.S. 224, 227; PATSONE V. PENNSYLVANIA,
232 U.S. 138, 144. 

MOREOVER, IF WE MUST PRESUME THAT THE LEGISLATURE KNOWS - WHAT
SCIENCE HAS BEEN UNABLE TO ASCERTAIN - THAT THE CRIMINAL TENDENCIES OF
ANY CLASS OF HABITUAL OFFENDERS ARE TRANSMISSIBLE REGARDLESS OF THE
VARYING MENTAL CHARACTERISTICS OF ITS INDIVIDUALS, I SHOULD SUPPOSE
THAT WE MUST LIKEWISE PRESUME THAT THE LEGISLATURE, IN ITS WISDOM,
KNOWS THAT THE CRIMINAL TENDENCIES OF SOME CLASSES OF OFFENDERS ARE
MORE LIKELY TO BE TRANSMITTED THAN THOSE OF OTHERS.  AND SO I THINK THE
REAL QUESTION WE HAVE TO CONSIDER IS NOT ONE OF EQUAL PROTECTION, BUT
WHETHER THE WHOLESALE CONDEMNATION OF A CLASS TO SUCH AN INVASION OF
PERSONAL LIBERTY, WITHOUT OPPORTUNITY TO ANY INDIVIDUAL TO SHOW THAT
HIS IS NOT THE TYPE OF CASE WHICH WOULD JUSTIFY RESORT TO IT, SATISFIES
THE DEMANDS OF DUE PROCESS. 

THERE ARE LIMITS TO THE EXTENT TO WHICH THE PRESUMPTION OF
CONSTITUTIONALITY CAN BE PRESSED, ESPECIALLY WHERE THE LIBERTY OF THE
PERSON IS CONCERNED (SEE UNITED STATES V. CAROLENE PRODUCTS CO., 304
U.S. 144, 152, N. 4) AND WHERE THE PRESUMPTION IS RESORTED TO ONLY TO
DISPENSE WITH A PROCEDURE WHICH THE ORDINARY DICTATES OF PRUDENCE WOULD
SEEM TO DEMAND FOR THE PROTECTION OF THE INDIVIDUAL FROM ARBITRARY
ACTION.  ALTHOUGH PETITIONER HERE WAS GIVEN A HEARING TO ASCERTAIN
WHETHER STERILIZATION WOULD BE DETRIMENTAL TO HIS HEALTH, HE WAS GIVEN
NONE TO DISCOVER WHETHER HIS CRIMINAL TENDENCIES ARE OF AN INHERITABLE
TYPE.  UNDOUBTEDLY A STATE MAY, AFTER APPROPRIATE INQUIRY,
CONSTITUTIONALLY INTERFERE WITH THE PERSONAL LIBERTY OF THE INDIVIDUAL
TO PREVENT THE TRANSMISSION BY INHERITANCE OF HIS SOCIALLY INJURIOUS
TENDENCIES.  BUCK V. BELL, 274 U.S. 200.  BUT UNTIL NOW WE HAVE NOT
BEEN CALLED UPON TO SAY THAT IT MAY DO SO WITHOUT GIVING HIM A HEARING
AND OPPORTUNITY TO CHALLENGE THE EXISTENCE AS TO HIM OF THE ONLY FACTS
WHICH COULD JUSTIFY SO DRASTIC A MEASURE. 

SCIENCE HAS FOUND AND THE LAW HAS RECOGNIZED THAT THERE ARE CERTAIN
TYPES OF MENTAL DEFICIENCY ASSOCIATED WITH DELINQUENCY WHICH ARE
INHERITABLE.  BUT THE STATE DOES NOT CONTEND - NOR CAN THERE BE ANY
PRETENSE - THAT EITHER COMMON KNOWLEDGE OR EXPERIENCE, OR SCIENTIFIC
INVESTIGATION,  FN1 HAS GIVEN ASSURANCE THAT THE CRIMINAL TENDENCIES OF
ANY CLASS OF HABITUAL OFFENDERS ARE UNIVERSALLY OR EVEN GENERALLY
INHERITABLE.  IN SUCH CIRCUMSTANCES, INQUIRY WHETHER SUCH IS THE FACT
IN THE CASE OF ANY PARTICULAR INDIVIDUAL CANNOT RIGHTLY BE DISPENSED
WITH.  WHETHER THE PROCEDURE BY WHICH A STATUTE CARRIES ITS MANDATE
INTO EXECUTION SATISFIES DUE PROCESS IS A MATTER OF JUDICIAL
COGNIZANCE.  A LAW WHICH CONDEMNS, WITHOUT HEARING, ALL THE INDIVIDUALS
OF A CLASS TO SO HARSH A MEASURE AS THE PRESENT BECAUSE SOME OR EVEN
MANY MERIT CONDEMNATION, IS LACKING IN THE FIRST PRINCIPLES OF DUE
PROCESS.  MORRISON V. CALIFORNIA, 291 U.S. 82, 90, AND CASES CITED;
TAYLOR V. GEORGIA, 315 U.S. 25.  AND SO, WHILE THE STATE MAY PROTECT
ITSELF FROM THE DEMONSTRABLY INHERITABLE TENDENCIES OF THE INDIVIDUAL
WHICH ARE INJURIOUS TO SOCIETY, THE MOST ELEMENTARY NOTIONS OF DUE
PROCESS WOULD SEEM TO REQUIRE IT TO TAKE APPROPRIATE STEPS TO SAFEGUARD
THE LIBERTY OF THE INDIVIDUAL BY AFFORDING HIM, BEFORE HE IS CONDEMNED
TO AN IRREPARABLE INJURY IN HIS PERSON, SOME OPPORTUNITY TO SHOW THAT
HE IS WITHOUT SUCH INHERITABLE TENDENCIES.  THE STATE IS CALLED ON TO
SACRIFICE NO PERMISSIBLE END WHEN IT IS REQUIRED TO REACH ITS OBJECTIVE
BY A REASONABLE AND JUST PROCEDURE ADEQUATE TO SAFEGUARD RIGHTS OF THE
INDIVIDUAL WHICH CONCEDEDLY THE CONSTITUTION PROTECTS. 

FN1  SEE EUGENICAL STERILIZATION, A REPORT OF THE COMMITTEE OF THE
AMERICAN NEUROLOGICAL ASSOCIATION (1936), PP. 150-52; MYERSON, SUMMARY
OF THE REPORT, 1 AMERICAN JOURNAL OF MEDICAL JURISPRUDENCE 253;
POPENOE, STERILIZATION AND CRIMINALITY, 53 AMERICAN BAR ASSN. REPORTS
575; JENNINGS, EUGENICS, 5 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 617, 620
21; MONTAGU, THE BIOLOGIST LOOKS AT CRIME, 217 ANNALS OF AMERICAN
ACADEMY OF POLITICAL AND SOCIAL SCIENCE 46. 

MR. JUSTICE JACKSON CONCURRING: 

I JOIN THE CHIEF JUSTICE IN HOLDING THAT THE HEARINGS PROVIDED ARE
TOO LIMITED IN THE CONTEXT OF THE PRESENT ACT TO AFFORD DUE PROCESS OF
LAW.  I ALSO AGREE WITH THE OPINION OF MR. JUSTICE DOUGLAS THAT THE
SCHEME OF CLASSIFICATION SET FORTH IN THE ACT DENIES EQUAL PROTECTION
OF THE LAW.  I DISAGREE WITH THE OPINION OF EACH IN SO FAR AS IT
REJECTS OR MINIMIZES THE GROUNDS TAKEN BY THE OTHER. 

PERHAPS TO EMPLOY A BROAD AND LOOSE SCHEME OF CLASSIFICATION WOULD BE
PERMISSIBLE IF ACCOMPANIED BY THE INDIVIDUAL HEARINGS INDICATED BY THE
CHIEF JUSTICE.  ON THE OTHER HAND, NARROW CLASSIFICATION WITH REFERENCE
TO THE END TO BE ACCOMPLISHED BY THE ACT MIGHT JUSTIFY LIMITING
INDIVIDUAL HEARINGS TO THE ISSUE WHETHER THE INDIVIDUAL BELONGED TO A
CLASS SO DEFINED.  SINCE THIS ACT DOES NOT PRESENT THESE QUESTIONS, I
RESERVE JUDGMENT ON THEM. 

I ALSO THINK THE PRESENT PLAN TO STERILIZE THE INDIVIDUAL IN PURSUIT
OF A EUGENIC PLAN TO ELIMINATE FROM THE RACE CHARACTERISTICS THAT ARE
ONLY VAGUELY IDENTIFIED AND WHICH IN OUR PRESENT STATE OF KNOWLEDGE ARE
UNCERTAIN AS TO TRANSMISSIBILITY PRESENTS OTHER CONSTITUTIONAL
QUESTIONS OF GRAVITY.  THIS COURT HAS SUSTAINED SUCH AN EXPERIMENT WITH
RESPECT TO AN IMBECILE, A PERSON WITH DEFINITE AND OBSERVABLE
CHARACTERISTICS, WHERE THE CONDITION HAD PERSISTED THROUGH THREE
GENERATIONS AND AFFORDED GROUNDS FOR THE BELIEF THAT IT WAS
TRANSMISSIBLE AND WOULD CONTINUE TO MANIFEST ITSELF IN GENERATIONS TO
COME.  BUCK V. BELL, 274 U.S. 200. 

THERE ARE LIMITS TO THE EXTENT TO WHICH A LEGISLATIVELY REPRESENTED
MAJORITY MAY CONDUCT BIOLOGICAL EXPERIMENTS AT THE EXPENSE OF THE
DIGNITY AND PERSONALITY AND NATURAL POWERS OF A MINORITY - EVEN THOSE
WHO HAVE BEEN GUILTY OF WHAT THE MAJORITY DEFINE AS CRIMES.  BUT THIS
ACT FALLS DOWN BEFORE REACHING THIS PROBLEM, WHICH I MENTION ONLY TO
AVOID THE IMPLICATION THAT SUCH A QUESTION MAY NOT EXIST BECAUSE NOT
DISCUSSED.  ON IT I WOULD ALSO RESERVE JUDGMENT. 
..END :






















WARD V. TEXAS, 316 U.S. 547 


NO. 974.  ARGUED MAY 6, 1942.  - DECIDED JUNE 1, 1942.  - 158 S.W.2D
516, REVERSED. 


1.  THE USE IN A PROSECUTION FOR MURDER OF A CONFESSION OBTAINED BY
OFFICERS OF THE LAW BY COERCING THE ACCUSED, IS FORBIDDEN BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 555. 

2.  THE EVIDENCE SHOWS THAT LAW ENFORCEMENT OFFICERS, ACTING BEYOND
THEIR AUTHORITY AND IN VIOLATION OF STATE LAW, ARRESTED WITHOUT A
WARRANT AN IGNORANT NEGRO, ACCUSED OF MURDER, AND TOOK HIM BY NIGHT AND
DAY TO STRANGE TOWNS IN SEVERAL COUNTIES; INCARCERATED HIM IN SEVERAL
JAILS; AND BY THESE MEANS AND BY PERSISTENT QUESTIONING, COERCED HIM TO
CONFESS.  THE USE OF THE CONFESION AT THE TRIAL VOIDS THE CONVICTION. 
PP. 550, 555. 

WARD V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

CERTIORARI, POST, P. 653, TO REVIEW A JUDGMENT AFFIRMING A SENTENCE. 
THE CONVICTION WAS OF MURDER WITHOUT MALICE, AND THE PUNISHMENT
ASSESSED WAS CONFINEMENT FOR THREE YEARS IN THE STATE PENITENTIARY. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

PETITIONER WILLIAM WARD, A NEGRO, WAS INDICTED AT THE SEPTEMBER 1939
TERM OF THE DISTRICT COURT OF TITUS COUNTY, TEXAS, FOR THE MURDER OF
LEVI BROWN, A WHITE MAN.  HE WAS PLACED ON TRIAL AT THAT TERM BUT THE
JURY WAS UNABLE TO AGREE UPON A VERDICT.  AT THE JANUARY 1941 TERM HE
WAS AGAIN TRIED AND FOUND GUILTY OF MURDER WITHOUT MALICE, THE JURY
ASSESSING HIS PUNISHMENT AT CONFINEMENT IN THE STATE PENITENTIARY FOR
THREE YEARS.  UPON APPEAL THE COURT OF CRIMINAL APPEALS REVERSED THE
JUDGMENT OF THE DISTRICT COURT.  ON THE STATE'S MOTION FOR REHEARING,
THE COURT REVERSED ITSELF AND AFFIRMED THE JUDGMENT.  PETITIONER'S
MOTION FOR REHEARING WAS DENIED, ONE JUDGE DISSENTING.  158 S.W.2D
516.  A PETITION FOR A WRIT OF CERTIORARI WAS GRANTED IN FORMA
PAUPERIS. 

THE EVIDENCE INTRODUCED AT THE TRIAL WAS SUCH THAT THE JURY COULD
HAVE DRAWN THE FOLLOWING CONCLUSIONS:  THE DECEASED, WHO WAS SEVENTY
TWO YEARS OLD, LIVED IN OMAHA, IN MORRIS COUNTY.  HE HAD PREVIOUSLY
RESIDED AT MOUNT PLEASANT, IN THE ADJOINING COUNTY OF TITUS.  HE WENT
TO MOUNT PLEASANT ON SATURDAY, JUNE 24, 1939.  ON SATURDAY EVENING HE
WAS SEEN FOR THE LAST TIME, TALKING TO PETITIONER AND A NEGRO WOMAN ON
A STREET CORNER TWO AND A HALF BLOCKS SOUTH OF WHERE HIS BODY WAS
FOUND.  HE THEN MOVED OFF NORTHWARD ALONG THE STREET FOLLOWED AT A
LITTLE DISTANCE BY PETITIONER AND THE WOMAN.  A SHORT TIME LATER
PETITIONER AND THE WOMAN RETURNED TO THE CORNER.  THEY SEPARATED THERE
AND SHE WALKED OFF TO THE SOUTH WHILE HE RETURNED IN THE DIRECTION IN
WHICH THE DECEASED HAD GONE.  THE BODY WAS DISCOVERED ON SUNDAY MORNING
LYING IN A FIELD IN GRASS ABOUT KNEE HIGH.  THERE WERE NO SIGNS OF A
STRUGGLE AND NO EVIDENCE OF ROBBERY.  THE SKIN ON THE NECK WAS BRUISED
AND DISCOLORED, THE FACE WAS SWOLLEN AND THE EYES DISTENDED.  THE FRONT
OF THE TROUSERS WAS OPEN AND THERE WAS BLOOD ON THE TAIL OF THE SHIRT. 
FOR SOME TIME THE DECEASED HAD BEEN AFFLICTED WITH A HEART AILMENT, AND
UNDER ADVICE OF HIS PHYSICIAN REGULARLY TOOK DIGITALIS.  HE HAD TAKEN A
DOSE ON SATURDAY BEFORE LEAVING HIS HOME.  THE EXAMING PHYSICIAN,
HOWEVER, FOUND THAT DEATH WAS DUE TO STRANGULATION. 

THE COURT OF CRIMINAL APPEALS IN ITS FINAL OPINION DENYING
PETITIONER'S MOTION FOR A REHEARING CONCLUDED:  "IT MAY BE STATED
BLUNTLY THAT NO CONVICTION COULD BE SUSTAINED IN THE PRESENT CASE
WITHOUT THE CONFESSION OF APPELLANT."  THE DETAILS OF THE CONFESSION
NEED NOT BE RECITED.  IT IS SUFFICIENT TO SAY THAT IN IT PETITIONER
STATED THAT UNDER HIS AGREEMENT WITH DECEASED HE WAS TO RECEIVE ONE
DOLLAR; THAT THE DECEASED REFUSED TO PAY HIM AND CURSED HIM AND HIT
HIM; THAT HE GRABBED THE DECEASED, CHOKED HIM FOR NEARLY FIVE MINUTES,
AND NOT KNOWING WHETHER HE WAS DEAD OR ALIVE LEFT HIM ON THE GROUND. 

PETITIONER CONTENDS THAT THIS CONFESSION WAS SIGNED BY HIM ONLY AFTER
HE HAD BEEN ARRESTED WITHOUT A WARRANT, TAKEN FROM HIS HOME TOWN,
DRIVEN FOR THREE DAYS FROM COUNTY TO COUNTY, PLACED IN A JAIL MORE THAN
100 MILES FROM HIS HOME, QUESTIONED CONTINUOUSLY, AND BEATEN, WHIPPED
AND BURNED BY THE OFFICER TO WHOM THE CONFESSION WAS FINALLY MADE.  WE
GRANTED CERTIORARI IN ORDER TO DETERMINE WHETHER THE CONFESSION WAS THE
RESULT OF SUCH COERCION AND DURESS THAT ITS USE BY THE STATE AT THE
TRIAL CONSTITUTED A DENIAL OF THE DUE PROCESS OF LAW GUARANTEED BY THE
FOURTEENTH AMENDMENT. 

IN ITS FIRST OPINION REVERSING THE JUDGMENT OF CONVICTION, THE TEXAS
COURT OF CRIMINAL APPEALS CONCLUDED THAT THE METHODS EMPLOYED IN
OBTAINING THE CONFESSION VIOLATED APPLICABLE TEXAS STATUTES.  IT ADDED
THAT THE REVERSAL OF THE CONVICTION WAS "IN KEEPING WITH THE RECENT
DECISION OF THE SUPREME COURT OF THE UNITED STATES IN WHITE V. STATE OF
TEXAS, 310 U.S. 530," IN WHICH WE SET ASIDE A CONVICTION BECAUSE IT WAS
BASED UPON A CONFESSION OBTAINED BY MEANS REPUGNANT TO THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  BUT IN ITS SECOND OPINION
REINSTATING THE JUDGMENT OF CONVICTION, THE COURT OF CRIMINAL APPEALS
DECIDED THAT THERE WAS A CONFLICT OF EVIDENCE WITH RESPECT TO THE
ISSUES UPON WHICH THE ADMISSIBILITY OF THE CONFESSION DEPENDED AND THAT
THE QUESTION OF ADMISSIBILITY WAS SOLELY FOR THE JURY AND HAD BEEN
SUBMITTED WITH PROPER INSTRUCTIONS.  IT CONCLUDED THAT "NO MATTER WHAT
OUR PERSONAL BELIEF MIGHT BE, WE DO NOT FEEL THAT WE HAVE, NOR DO WE
USURP THE POWER TO SET ASIDE THE FINDING OF THIS JURY IN THE CASE AT
BAR." 

EACH STATE HAS THE RIGHT TO PRESCRIBE THE TESTS GOVERNING THE
ADMISSIBILITY OF A CONFESSION.  IN VARIOUS STATES THERE MAY BE VARIOUS
TESTS.  BUT WHEN, AS IN THIS CASE, THE QUESTION IS PROPERLY RAISED AS
TO WHETHER A DEFENDANT HAS BEEN DENIED THE DUE PROCESS OF LAW
GUARANTEED BY THE FEDERAL CONSTITUTION, WE CANNOT BE PRECLUDED BY THE
VERDICT OF A JURY FROM DETERMINING WHETHER THE CIRCUMSTANCES UNDER
WHICH THE CONFESSION WAS MADE WERE SUCH THAT ITS ADMISSION IN EVIDENCE
AMOUNTS TO A DENIAL OF DUE PROCESS. 

THE UNDISPUTED EVIDENCE SHOWS THAT THE SIGNING OF THE CONFESSION WAS
PRECEDED BY THE FOLLOWING EVENTS.  PETITIONER WAS EMPLOYED AS A HOUSE
SERVANT IN MOUNT PLEASANT BY JUDGE S. B. CALDWELL, A MEMBER OF THE BAR
OF TITUS COUNTY.  WHEN THE BODY OF THE DECEASED WAS DISCOVERED ON
SUNDAY, JUNE 25, PETITIONER WAS TAKEN TO THE COURT HOUSE FOR
QUESTIONING ALONG WITH SEVERAL OTHER NEGROES.  HE PLEADED HIS
INNOCENCE.  DURING THE EXAMINATION HE WAS SLAPPED BY A CONSTABLE NAMED
REDFEARN, WHO GAVE AS HIS REASON THAT PETITIONER TOLD HIM HE "DIDN'T
KNOW WHAT HE WAS TALKING ABOUT AND QUILLA GADDIS WAS A LIAR."  HAVING
NO JUSTIFICATION FOR HOLDING HIM IN CUSTODY, THE COUNTY ATTORNEY, AT
THE REQUEST OF JUDGE CALDWELL, LET PETITIONER RETURN TO HIS HOME. 
THEREAFTER, ON SUNDAY AND MONDAY, HE WAS QUESTIONED BY OFFICERS SEVERAL
TIMES AND REITERATED HIS ASSERTIONS OF INNOCENCE.  ON TUESDAY, THE
OFFICERS WERE STILL QUESTIONING SEVERAL NEGROES IN CONNECTION WITH
THEIR INVESTIGATION OF THE CRIME.  ACCORDING TO THE COUNTY ATTORNEY,
THEY HAD NO EVIDENCE BY TUESDAY NIGHT TO JUSTIFY THE ARREST OF
PETITIONER.  ON THAT NIGHT, WHILE PETITIONER WAS ATTENDING A PARTY AT
HIS CHURCH IN MOUNT PLEASANT, HE WAS CALLED OUT, HANDCUFFED, AND TAKEN
INTO CUSTODY BY THE SHERIFF OF MORRIS COUNTY, WHICH ADJOINS TITUS
COUNTY.  THE SHERIFF WAS NOT ACCOMPANIED BY ANY OFFICER OF TITUS
COUNTY.  HE TOOK PETITIONER AND ANOTHER NEGRO IN HIS CAR AND DROVE THEM
OUT OF THE CITY TO HART'S CREEK, WHERE HE HAD ARRANGED TO MEET
CONSTABLE REDFEARN OF TITUS COUNTY, THE MAN WHO HAD SLAPPED PETITIONER
ON SUNDAY.  THE OFFICERS THEN CARRIED PETITIONER AND TWO OTHER NEGROES
TO DAINGERFIELD IN MORRIS COUNTY, WHERE THE DECEASED HAD RESIDED, THEN
TO PITTSBURG IN CAMP COUNTY, AND THEN TO GILMER IN UPSHUR COUNTY, WHERE
HE SPENT THE NIGHT IN JAIL.  ON WEDNESDAY NIGHT HE WAS TAKEN BACK TO
JAIL IN PITTSBURG.  CONSTABLE REDFEARN VISITED HIM FROM TIME TO TIME,
AND ON THURSDAY MORNING TOOK HIM TO TYLER IN SMITH COUNTY, WHERE
REDFEARN PLACED HIM IN THE CUSTODY OF TWO HIGHWAY PATROLMEN, ADVISING
THEM OF THE DETAILS OF THE CRIME.  ABOUT THIRTY MINUTES LATER, THE
PATROLMEN CARRIED PETITIONER TO ATHENS, IN HENDERSON COUNTY, AND TURNED
HIM OVER TO SHERIFF SWEETEN.  ATHENS IS 110 MILES FROM MOUNT PLEASANT. 
DURING THIS TIME HE HAD BEEN QUESTIONED CONTINUOUSLY.  ACCORDING TO THE
COUNTY ATTORNEY OF TITUS COUNTY, WHO QUESTIONED PETITIONER IN THREE
DIFFERENT JAILS ON THREE DIFFERENT DAYS, PETITIONER STATED, ONCE IN
GILMER AND AGAIN IN PITTSBURG, THAT HE WOULD BE GLAD TO MAKE ANY
STATEMENT THAT "I WANTED HIM TO MAKE BUT THAT HE DIDN'T DO IT."  AFTER
SHERIFF SWEETEN HAD TALKED TO PETITIONER, THE LATTER SIGNED THE
CONFESSION BEFORE A COUNTY ATTORNEY.  WITHIN SIX HOURS AFTER HIS
ARRIVAL IN ATHENS HE WAS RETURNED TO TYLER.  EVENTUALLY HE WAS TAKEN
BACK TO GILMER, WHERE HE WAS KEPT UNTIL THE TRIAL. 

THESE FACTS ARE NOT DISPUTED.  PETITIONER'S CONTENTION THAT HE WAS
BEATEN, WHIPPED AND BURNED BY SHERIFF SWEETEN JUST BEFORE THE
CONFESSION WAS MADE, HOWEVER, WAS SQUARELY DENIED.  ALL OF THE OFFICERS
INVOLVED ASSERTED THAT HE HAD NOT BEEN MISTREATED, WITH THE EXCEPTION
OF THE SLAP BY REDFEARN.  SWEETEN'S EXPLANATION OF HOW THE CONFESSION
WAS OBTAINED WAS:  "WE JUST TALKED THAT CONFESSION OUT OF HIM.  IT TOOK
US 20 TO 30 MINUTES TO GET THAT CONFESSION."  AND ONE OF THE PATROLMEN
WHO TOOK PETITIONER TO THE JAIL IN ATHENS STATED:  "WE JUST TALKED TO
HIM TO GET THAT STATEMENT.  YES SIR, WE JUST SWEET TALKED HIM OUT OF
IT."  SEVERAL WITNESSES WHO WERE NOT OFFICERS TESTIFIED THAT THEY HAD
EXAMINED PETITIONER'S BODY AND FOUND NO BRUISES OR BURNS.  ONLY THE
SHERIFF OF TITUS COUNTY CORROBORATED PETITIONER'S CHARGES.  HE
TESTIFIED THAT WHEN PETITIONER WAS BACK IN THE GILMER JAIL SEVERAL DAYS
AFTER THE CONFESSION, "I SAW SOME MARKS ON HIS NECK AND SHOULDERS AND
ARMS THAT APPEARED TO BE CIGARETTE STUB BURNS.  YES SIR, THEY WERE
FRESH.  THERE WERE SEVERAL OF THEM ON HIS BODY." 

CONCEDING THAT THE QUESTION OF PHYSICAL MISTREATMENT WAS CONCLUSIVELY
RESOLVED BY THE JURY'S VERDICT, WE RETURN TO THE ADMITTED FACTS.  THERE
CAN BE NO DOUBT THAT FROM FIRST TO LAST THE OFFICERS ACTED WITHOUT
AUTHORITY OF LAW.  THE SHERIFF OF MORRIS COUNTY HAD NO POWER TO ARREST
PETITIONER IN TITUS COUNTY.  WITHOUT THE BOUNDARIES OF MORRIS COUNTY HE
HAD NO MORE AUTHORITY THAN ANY PRIVATE CITIZEN.  LEDBETTER V. STATE, 23
TEX. APP. 247, 5 S.W. 226; HOOPER V. DIESHER, 113 S.W.2D 966, 967.  NOR
DID CONSTABLE REDFEARN OF TITUS COUNTY HAVE THE RIGHT TO TAKE
PETITIONER INTO CUSTODY.  UNDER ARTICLE 215 OF THE TEXAS CODE OF
CRIMINAL PROCEDURE, THE SHERIFF MUST PROCURE A WARRANT BEFORE MAKING AN
ARREST UNLESS HE HAS BEEN ADVISED BY A CREDIBLE PERSON THAT A FELONY
HAS BEEN COMMITTED AND THAT THE OFFENDER IS ABOUT TO ESCAPE.  SEE
RUTHERFORD V. STATE, 104 TEX. CR. 127, 283 S.W. 512.  AND ARTICLE 217
PROVIDES THAT THE PERSON MAKING THE ARREST MUST IMMEDIATELY TAKE THE
PERSON ARRESTED BEFORE THE MAGISTRATE IF THE ARREST IS MADE WITHOUT A
WARRANT.  NEITHER THE SHERIFF OF MORRIS COUNTY NOR CONSTABLE REDFEARN
MADE ANY EFFORT TO SECURE A WARRANT.  INSTEAD OF TAKING PETITIONER TO
THE NEAREST MAGISTRATE, THEY TOOK HIM AWAY FROM THE NEAREST
MAGISTRATE.  THERE WAS NO PRETENSE THAT THE ARREST WAS MADE BECAUSE OF
INFORMATION THAT HE WAS ABOUT TO ESCAPE.  HE HAD BEEN RELEASED ON
SUNDAY AFTER HIS FIRST DETENTION, AND ON TUESDAY EVENING HE WAS
ATTENDING A PARTY AT HIS CHURCH, WHEN THE SHERIFF OF MORRIS COUNTY
ARRESTED HIM. 

PETITIONER CONTENDS THAT HE WAS MOVED FROM TITUS COUNTY BECAUSE THE
OFFICERS FEARED THAT IF HE WERE PLACED IN JAIL THERE JUDGE CALDWELL
WOULD APPLY FOR A WRIT OF HABEAS CORPUS TO SECURE HIS RELEASE, AND
BECAUSE THEY WOULD BE ABLE TO OBTAIN THE CONFESSION FROM HIM MORE
EASILY IN A STRANGE PLACE.  THE STATE'S ANSWER IS THAT THE OFFICERS'
PURPOSE WAS TO PROTECT HIM FROM THREATENED MOB VIOLENCE. 

IN THE FIRST PLACE, THE PROCEDURE REQUIRED BY LAW WAS NOT OBSERVED IN
MAKING THE REMOVAL.  ARTICLE 262 OF THE CODE OF CRIMINAL PROCEDURE
PROVIDES THAT, IF THERE IS NO SAFE JAIL IN THE COUNTY IN WHICH THE
PROSECUTION IS CARRIED ON, THE MAGISTRATE MAY COMMIT THE PRISONER TO
THE NEAREST SAFE JAIL IN ANY OTHER COUNTY.  HERE NO APPLICATION WAS
MADE TO A MAGISTRATE FOR A COMMITTAL TO A JAIL IN ANOTHER COUNTY. 

IN THE SECOND PLACE, THE EVIDENCE OF THREATENED MOB VIOLENCE IS
EXTREMELY VAGUE AND BY NO MEANS ADEQUATELY EXPLAINS THE COURSE OF THE
OFFICERS' ACTIVITIES.  THE ONLY TESTIMONY ON THIS SUBJECT IS THAT, IN
MORRIS COUNTY WHERE DECEASED LIVED, ONE OR TWO PERSONS HAD EXPRESSED
THE OPINION THAT THE MAN WHO KILLED HIM SHOULD BE GIVEN A "NECK-TIE
PARTY," AND THAT SOME PEOPLE IN TITUS COUNTY HAD TALKED ABOUT THE
"POSSIBILITY OF THREATENING MOB VIOLENCE."  YET, IMMEDIATELY AFTER THE
ARREST, PETITIONER WAS TAKEN INTO MORRIS COUNTY, WHERE THE FEELING WAS
SUPPOSEDLY RUNNING HIGHEST.  IN CONVERSATION WITH TWO ATTORNEYS IN
MOUNT PLEASANT PRIOR TO THE TUESDAY NIGHT ARREST, CONSTABLE REDFEARN
COMPLAINED ABOUT "THE TROUBLE WE WERE HAVING IN QUESTIONING WILLIAM
WARD" BECAUSE OF JUDGE CALDWELL'S INTERFERENCE.  AT THE TRIAL HE
STATED:  "IN MOVING THE DEFENDANT, AS I HAVE TESTIFIED, THE SOLE AND
ONLY CONSIDERATION IN DOING SO WAS TO GET A STATEMENT FROM THE NEGRO IN
TALKING TO HIM ALONE OR IN CONNECTION WITH OTHERS WHO POSSIBLY KNEW
SOMETHING ABOUT THE CRIME AND I WAS PROTECTING HIM AGAINST RUMORS OF
POSSIBLE MOB VIOLENCE."  ROLSTON, COUNTY ATTORNEY OF TITUS COUNTY, WAS
ASKED AT THE TRIAL WHETHER THE REASON FOR TAKING PETITIONER OUT OF
TITUS COUNTY WAS TO PREVENT JUDGE CALDWELL "FROM GETTING OUT A WRIT OF
HABEAS CORPUS."  HE REPLIED:  "I DO NOT KNOW WHETHER THAT IS ALL THE
REASON OR NOT.  I DIDN'T ADVISE THE OFFICERS TO TAKE HIM OUT.  ...  I
KNOW THERE WAS SOME PLAN ON FOOT TO TAKE HIM OUT."  AND HE TESTIFIED
FURTHER:  "IT IS A FACT THAT MR. REDFEARN AND SOME OF THE OTHER
OFFICERS TOLD ME ABOUT THE EDWARDS NEGRO, THAT THEY WERE GOING TO TRY
TO GET THEM OUT OF MOUNT PLEASANT AND QUESTION HER AND THEN QUESTION
WILLIAM AND TRY TO CONFRONT THE TWO WITH THE STATEMENT OF EACH OTHER
AND TRY TO GET THEM TO BREAK DOWN AND TELL THE TRUTH ABOUT IT." 
SPEAKING OF THE CONDUCT OF THE OFFICERS, THE COURT OF CRIMINAL APPEALS
IN ITS FIRST OPINION SAID:  "WE GIVE EFFECT TO THE GOOD FAITH AND
INTENT OF THE OFFICERS IN MOVING APPELLANT OUT OF TITUS COUNTY IN ORDER
TO SECURE HIS SAFETY.  YET WE CANNOT SUBSCRIBE TO THE IDEA THAT IT WAS
NECESSARY TO CARRY HIM 110 MILES, TO ATHENS, TEXAS, FOR THAT PURPOSE. 
THAT SUCH WAS NOT THE REASON APPELLANT WAS CARRIED TO ATHENS IS
DEMONSTRATED BY THE FACT THAT HE WAS KEPT THERE ONLY TWENTY OR THIRTY
MINUTES,  FN1  AND WAS CARRIED BACK TO TYLER IMMEDIATELY AFTER HE HAD
MADE THE CONFESSION.  THE CONCLUSION IS INESCAPABLE THAT HE WAS CARRIED
TO ATHENS AS PART OF THE PLAN TO 'GET A STATEMENT FROM THE NEGRO,' AND
WHICH HAD FAILED UP TO THAT TIME."  WE ARE NOT PERSUADED THAT THE
INITIAL REMOVAL OF PETITIONER FROM TITUS COUNTY WAS PROMPTED BY FEAR
FOR HIS SAFETY, BUT WE CONCUR IN THE TEXAS COURT'S OPINION AS TO THE
MOTIVE THAT PROMPTED THE OFFICERS TO TRANSPORT HIM AS FAR AS ATHENS. 

THE EFFECT OF MOVING AN IGNORANT NEGRO BY NIGHT AND DAY TO STRANGE
TOWNS, TELLING HIM OF THREATS OF MOB VIOLENCE, AND QUESTIONING HIM
CONTINUOUSLY IS EVIDENT FROM PETITIONER'S STATEMENT TO COUNTY ATTORNEY
ROLSTON THAT HE WOULD BE GLAD TO MAKE ANY STATEMENT THAT ROLSTON
DESIRED.  DISREGARDING PETITIONER'S CLAIMS THAT HE WAS WHIPPED AND
BURNED, WE MUST CONCLUDE THAT THIS CONFESSION WAS NOT FREE AND
VOLUNTARY BUT WAS THE PRODUCT OF COERCION AND DURESS, THAT PETITIONER
WAS NO LONGER ABLE FREELY TO ADMIT OR TO DENY OR TO REFUSE TO ANSWER,
AND THAT HE WAS WILLING TO MAKE ANY STATEMENT THAT THE OFFICERS WANTED
HIM TO MAKE. 

THIS COURT HAS SET ASIDE CONVICTIONS BASED UPON CONFESSIONS EXTORTED
FROM IGNORANT PERSONS WHO HAVE BEEN SUBJECTED TO PERSISTENT AND
PROTRACTED QUESTIONING, OR WHO HAVE BEEN THREATENED WITH MOB VIOLENCE,
OR WHO HAVE BEEN UNLAWFULLY HELD INCOMMUNICADO WITHOUT ADVICE OF
FRIENDS OR COUNSEL, OR WHO HAVE BEEN TAKEN AT NIGHT TO LONELY AND
ISOLATED PLACES FOR QUESTIONING.  FN2  ANY ONE OF THESE GROUNDS WOULD
BE SUFFICIENT CAUSE FOR REVERSAL.  ALL OF THEM ARE TO BE FOUND IN THIS
CASE. 

THE USE OF A CONFESSION OBTAINED UNDER SUCH CIRCUMSTANCES IS A DENIAL
OF DUE PROCESS, AND THE JUDGMENT OF CONVICTION MUST BE REVERSED. 
REVERSED. 

FN1  IT APPEARS FROM THE RECORD THAT PETITIONER WAS ACTUALLY IN
ATHENS FOR SEVERAL HOURS.  HOWEVER, THE SIGNIFICANT FACT THAT HE WAS
RETURNED TO TYLER IMMEDIATELY AFTER SIGNING THE CONFESSION IS NOT
CONTROVERTED.  IT IS DIFFICULT TO IMAGINE THAT THE OBJECT IN CARRYING
HIM FROM TYLER TO ATHENS WAS TO SECURE HIM FROM HARM. 

FN2  WAN V. UNITED STATES, 266 U.S. 1, 14; BROWN V. MISSISSIPPI, 297
U.S. 278; CHAMBERS V. FLORIDA, 309 U.S. 227, 241; CANTY V.ALABAMA, 309
U.S. 629; WHITE V. TEXAS, 310 U.S. 530; LOMAX V. TEXAS, 313 U. S. 544;
VERNON V. ALABAMA, 313 U.S. 547. 
..END :












CHRYSLER CORPORATION V. U.S., 316 U.S. 556 


NO. 1036.  ARGUED MAY 1, 4, 1942.  - DECIDED JUNE 1, 1942.  - AFFIRMED. 


A CORPORATION, SUED BY THE GOVERNMENT UNDER THE ANTI-TRUST LAW,
CONSENTED TO A RESTRAINING DECREE WHICH CONTAINED AN EXPRESS CONDITION
THAT THE DEFENDANT WOULD BE FREED FROM A PROVISION FORBIDDING FINANCIAL
DEALINGS WITH ANY FINANCE COMPANY IF, ON OR BEFORE A FUTURE DAY NAMED,
NO FINAL DECREE IMPOSING A SIMILAR RESTRAINT HAD BEEN ENTERED IN A LIKE
SUIT THEN PENDING IN ANOTHER DISTRICT COURT AGAINST ITS COMPETITOR. 
THE DECREE EXPRESSLY RESERVED IN THE COURT POWER TO MODIFY ITS
PROVISIONS.  HELD, THAT THE POWER WAS NOT ABUSED BY ORDERS POSTPONING
THE TIME FOR COMPLIANCE WITH THE CONDITION BECAUSE OF DELAYS IN THE
OTHER SUIT, SINCE THE BASIC PURPOSE OF THE CONSENT DECREE WAS TO HAVE
THE ULTIMATE RIGHTS OF THE PARTIES DETERMINED BY THE OTHER LITIGATION,
AND SINCE THE FUNCTION OF THE TIME LIMITATION WAS TO PROTECT THE
DEFENDANT FROM BEING PLACED AT A COMPETITIVE DISADVANTAGE THROUGH UNDUE
DELAY OF THAT LITIGATION ON THE PART OF THE GOVERNMENT, WHEREAS IT DID
NOT APPEAR THAT THE TIME EXTENSION HAD HAD THAT EFFECT, AND THERE WAS
EVIDENCE TO SUPPORT A FINDING THAT THE OTHER SUIT HAD BEEN PROSECUTED
DILIGENTLY.  P. 562. 

CHRYSLER CORPORATION ET AL. V. UNITED STATES. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF INDIANA. 

APPEAL FROM AN ORDER OF THE DISTRICT COURT MODIFYING A DECREE WHICH
HAD BEEN ENTERED BY CONSENT IN A PROSECUTION UNDER THE ANTI-TRUST LAW. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

ON MAY 27, 1938, AN INDICTMENT WAS RETURNED AGAINST APPELLANTS
(REFERRED TO HEREAFTER AS CHRYSLER) AND COMMERCIAL CREDIT COMPANY AND
CERTAIN SUBSIDIARIES OF THE LATTER IN THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF INDIANA.  TWO SIMILAR INDICTMENTS WERE RETURNED ON
THE SAME DAY, ONE AGAINST FORD MOTOR COMPANY AND CERTAIN FINANCE
COMPANIES AFFILIATED WITH IT, AND THE OTHER AGAINST GENERAL MOTORS
CORPORATION AND GENERAL MOTORS ACCEPTANCE CORPORATION, ITS SUBSIDIARY. 
THE GIST OF EACH OF THESE INDICTMENTS WAS THAT THE AUTOMOBILE
MANUFACTURER HAD COMBINED AND CONSPIRED WITH ITS AFFILIATED FINANCE
COMPANY OR COMPANIES TO RESTRAIN TRADE AND COMMERCE IN THE WHOLESALE
AND RETAIL SALE AND FINANCING OF ITS AUTOMOBILES, IN VIOLATION OF THE
SHERMAN ACT.  FN1 

DURING THE ENSUING MONTHS, CHRYSLER AND FORD REACHED AN AGREEMENT
WITH THE GOVERNMENT THAT THE INDICTMENTS AGAINST THEM WOULD BE QUASHED
AND CONSENT DECREES ENTERED.  CONSEQUENTLY, ON NOVEMBER 7, 1938, BILLS
OF EQUITY WERE FILED AGAINST CHRYSLER AND FORD, PRAYING FOR INJUNCTIONS
AGAINST THE ACTS COMPLAINED OF.  ANSWERS WERE FILED,  FN2  AND ON
NOVEMBER 15, 1938, THE CONSENT DECREES WERE ENTERED. 

THE LENGTHY DECREE AGAINST CHRYSLER NEED NOT BE DESCRIBED IN DETAIL. 
FN3  PARAGRAPH 6 IMPOSED NUMEROUS SPECIFIC RESTRAINTS UPON
DISCRIMINATORY PRACTICES BY CHRYSLER IN FAVOR OF COMMERCIAL CREDIT
COMPANY.  PARAGRAPH 7 IMPOSED CORRELATIVE RESTRAINTS UPON COMMERCIAL
CREDIT COMPANY IN ITS DEALINGS WITH CHRYSLER.  PARAGRAPH 12A CONTAINED
ALTERNATIVE PROVISIONS DEPENDING UPON THE OUTCOME OF THE THEN STILL
PENDING CRIMINAL PROCEEDINGS AGAINST GENERAL MOTORS.  IT PROVIDED:  (1)
THAT IF THOSE PROCEEDINGS SHOULD NOT RESULT IN CONVICTION, EVERY
PROVISION OF THIS CONSENT DECREE AGAINST CHRYSLER SHOULD BE SUSPENDED
UNTIL SUCH TIME AS A SUBSTANTIALLY IDENTICAL DECREE SHOULD BE OBTAINED
AGAINST GENERAL MOTORS; OR (2) THAT UPON CONVICTION OF GENERAL MOTORS
IN THE CRIMINAL PROCEEDINGS, OR UPON THE ENTRY OF A DECREE IN A CIVIL
ACTION AGAINST GENERAL MOTORS, OR UPON JANUARY 1, 1940 - WHICHEVER
SHOULD OCCUR FIRST - CHRYSLER SHOULD BE FREE OF ALL RESTRAINTS IMPOSED
BY PARAGRAPH 6, TO THE EXTENT THAT SUBSTANTIALLY IDENTICAL RESTRAINTS
HAD NOT BEEN IMPOSED UPON GENERAL MOTORS BY THE VERDICT OF GUILTY, OR
BY THE CIVIL DECREE, AND UNTIL SUCH RESTRAINTS WERE IMPOSED. 

THE QUESTION BEFORE US CONCERNS PARAGRAPH 12, WHICH IS SEPARATE AND
DISTINCT FROM PARAGRAPH 12A.  PARAGRAPH 12 FORBADE CHRYSLER TO "MAKE
ANY LOAN TO OR PURCHASE THE SECURITIES OF" COMMERCIAL CREDIT COMPANY OR
ANY OTHER CREDIT COMPANY.  IT THEN PROVIDED: 

"IT IS AN EXPRESS CONDITION OF THIS DECREE THAT NOTWITHSTANDING THE
PROVISIONS OF THE PRECEDING PARAGRAPH OF THIS PARAGRAPH 12 AND OF ANY
OTHER PROVISIONS OF THIS DECREE, IF AN EFFECTIVE FINAL ORDER OR DECREE
NOT SUBJECT TO FURTHER REVIEW SHALL NOT HAVE BEEN ENTERED ON OR BEFORE
JANUARY 1, 1941, REQUIRING GENERAL MOTORS CORPORATION PERMANENTLY TO
DIVEST ITSELF OF ALL OWNERSHIP AND CONTROL OF GENERAL MOTORS ACCEPTANCE
CORPORATION AND OF ALL INTEREST THEREIN, THEN AND IN THAT EVENT,
NOTHING IN THIS DECREE SHALL PRECLUDE THE MANUFACTURER (CHRYSLER) FROM
ACQUIRING AND RETAINING OWNERSHIP OF AND/OR CONTROL OVER OR INTEREST IN
ANY FINANCE COMPANY, OR FROM DEALING WITH SUCH FINANCE COMPANY AND WITH
THE DEALERS IN THE MANNER PROVIDED IN THIS DECREE OR IN ANY ORDER OR
MODIFICATION OR SUSPENSION THEREOF ENTERED PURSUANT TO PARAGRAPH 12A
...  "  ITALICS ADDED.  AFFILIATION BETWEEN CHRYSLER AND COMMERCIAL
CREDIT COMPANY, OR ANOTHER FINANCE COMPANY, WAS THUS SINGLED OUT FOR
SPECIAL TREATMENT IN PARAGRAPH 12.  THE VARIOUS RESTRAINTS IMPOSED BY
PARAGRAPHS 6 AND 7 WERE SUBJECT TO TERMINATION UPON THE CONTINGENCIES
DESCRIBED IN PARAGRAPH 12A, BUT THE PROHIBITION AGAINST AFFILIATION WAS
SUBJECT TO EXPIRATION UPON THE DISTINCT AND DIFFERENT CONTINGENCY
DESCRIBED IN PARAGRAPH 12, VIZ., THE ENTRY OF "AN EFFECTIVE FINAL ORDER
OR DECREE NOT SUBJECT TO FURTHER REVIEW  ...  ON OR BEFORE JANUARY 1,
1941, REQUIRING GENERAL MOTORS CORPORATION PERMANENTLY TO DIVEST ITSELF
OF ALL OWNERSHIP AND CONTROL OF GENERAL MOTORS ACCEPTANCE CORPORATION
AND OF ALL INTEREST THEREIN  ...  " 

JURISDICTION OF THE CAUSE WAS RETAINED BY THE DISTRICT COURT, IN
PARAGRAPH 14, FOR THE PURPOSE OF ENABLING THE PARTIES TO APPLY AT ANY
TIME "FOR SUCH FURTHER ORDERS AND DIRECTIONS AS MAY BE NECESSARY OR
APPROPRIATE IN RELATION TO THE CONSTRUCTION OF OR CARRYING OUT OF THIS
DECREE" OR "FOR THE MODIFICATION THEREOF." 

THE CRIMINAL PROCEEDINGS AGAINST GENERAL MOTORS RESULTED IN
CONVICTION OF THE CORPORATION ON NOVEMBER 17, 1939.  GENERAL MOTORS
APPEALED TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.  ON
MAY 1, 1941, THAT COURT AFFIRMED THE CONVICTION AND ON JULY 2, 1941,
DENIED REHEARING.  121 F.2D 376.  A PETITION FOR CERTIORARI WAS DENIED
ON OCTOBER 13, 1941, 314 U.S. 618.  A PETITION FOR REHEARING WAS DENIED
ON NOVEMBER 10, 1941, 314 U.S. 710. 

MEANTIME, A CIVIL SUIT FOR AN INJUNCTION HAD BEEN INSTITUTED BY THE
GOVERNMENT AGAINST GENERAL MOTORS ON OCTOBER 4, 1940 IN THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF ILLINOIS.  ON OCTOBER 26, 1940, THE
GOVERNMENT AGREED TO AN EXTENSION OF TIME TO ANSWER TO JANUARY 20,
1941.  THIS EXTENSION OF TIME RENDERED IT IMPOSSIBLE FOR THE GOVERNMENT
TO OBTAIN "AN EFFECTIVE FINAL ORDER OR DECREE" AGAINST GENERAL MOTORS
BEFORE JANUARY 1, 1941, AS REQUIRED BY PARAGRAPH 12 OF THE CONSENT
DECREE AGAINST CHRYSLER.  ACCORDINGLY, ON DECEMBER 17, 1940, THE
GOVERNMENT FILED A MOTION IN THE DISTRICT COURT IN INDIANA ASKING THAT
PARAGRAPH 12 OF THE CONSENT DECREE AGAINST CHRYSLER BE MODIFIED BY
SUBSTITUTING "JANUARY 1, 1942" FOR "JANUARY 1, 1941."  CHRYSLER OPPOSED
THIS MOTION, BUT ON DECEMBER 21, 1940 AN ORDER WAS ENTERED CHANGING THE
DATE AS REQUESTED.  CHRYSLER APPEALED TO THIS COURT FROM THE ORDER OF
MODIFICATION, BUT THE APPEAL WAS DISMISSED ON DECEMBER 8, 1941 FOR WANT
OF A QUORUM OF JUSTICES QUALIFIED TO SIT, 314 U.S. 583, AND ON JANUARY
5, 1942 REHEARING WAS DENIED, 314 U.S. 716. 

PURSUANT TO ADDITIONAL STIPULATIONS BETWEEN THE GOVERNMENT AND
GENERAL MOTORS, THE TIME TO ANSWER THE GOVERNMENT'S COMPLAINT IN THE
CIVIL SUIT IN THE ILLINOIS DISTRICT COURT WAS SUCCESSIVELY EXTENDED TO
JANUARY 27, 1941, TO MAY 1, 1941, TO JUNE 15, 1941, AND TO JUNE 21,
1941.  ON THE LATTER DATE, THE GOVERNMENT FILED AN AMENDED COMPLAINT. 
BY AGREEMENT, THE TIME IN WHICH TO ANSWER THIS AMENDED COMPLAINT WAS
EXTENDED TO JULY 15, 1941.  GENERAL MOTORS THEN SOUGHT A FURTHER
EXTENSION OF TIME TO ANSWER THE AMENDED COMPLAINT, URGING THAT THE
CIVIL SUIT SHOULD BE POSTPONED PENDING A FINAL DETERMINATION OF THE
CRIMINAL CASE AND THAT IT WAS ABOUT TO PETITION FOR A WRIT OF
CERTIORARI IN THE CRIMINAL CASE.  THE GOVERNMENT REFUSED TO AGREE TO AN
EXTENSION, STATING THAT ANY FURTHER DELAY MIGHT PREJUDICE THE
GOVERNMENT IN CONNECTION WITH ITS CONSENT DECREE AGAINST CHRYSLER.  THE
DISTRICT COURT NEVERTHELESS ENTERED AN ORDER FOR AN INDEFINITE
EXTENSION OF THE TIME IN WHICH GENERAL MOTORS MIGHT ANSWER THE AMENDED
COMPLAINT.  ON DECEMBER 1, 1941, THE GOVERNMENT MOVED THE DISTRICT
COURT TO SET A DAY CERTAIN BY WHICH GENERAL MOTORS WOULD BE REQUIRED TO
ANSWER AND OTHERWISE PLEAD.  IN THE MOTION AND IN AN ACCOMPANYING
AFFIDAVIT, THE GOVERNMENT EXPLAINED THE CONNECTION BETWEEN THE CONSENT
DECREE AGAINST CHRYSLER AND THE CIVIL SUIT AGAINST GENERAL MOTORS. 
AFTER A HEARING ON THE MOTION, THE DISTRICT COURT SET JANUARY 15, 1942,
AS THE DATE BY WHICH GENERAL MOTORS WOULD BE REQUIRED TO ANSWER. 

THE DATE FIXED BY THE LAST MENTIONED ORDER OF THE DISTRICT COURT IN
ILLINOIS IN THE SUIT AGAINST GENERAL MOTORS CREATED FURTHER DIFFICULTY
WITH RESPECT TO THE CONSENT DECREE IN THE CHRYSLER CASE IN THE DISTRICT
COURT OF INDIANA.  IT HAD NOW BECOME IMPOSSIBLE FOR THE GOVERNMENT TO
OBTAIN "AN EFFECTIVE FINAL ORDER OR DECREE" AGAINST GENERAL MOTORS,
WITHIN THE MEANING OF PARAGRAPH 12 OF THE CHRYSLER CONSENT DECREE,
PRIOR TO JANUARY 1, 1942.  ON DECEMBER 22, 1941, THEREFORE, THE
GOVERNMENT MOVED THE DISTRICT COURT IN INDIANA FOR A SECOND
MODIFICATION OF PARAGRAPH 12 OF THE CHRYSLER CONSENT DECREE BY
SUBSTITUTING "JANUARY 1, 1943" FOR "JANUARY 1, 1942."  IN ITS ANSWER
CHRYSLER OPPOSED THE MODIFICATION.  THE GOVERNMENT OFFERED IN EVIDENCE
A TRANSCRIPT OF THE PROCEEDINGS IN THE CIVIL SUIT AGAINST GENERAL
MOTORS.  HEARING ON THE MOTION WAS CONTINUED TO FEBRUARY 16, 1942.  ON
THAT DATE NO ADDITIONAL EVIDENCE WAS INTRODUCED, BUT ARGUMENT OF
COUNSEL WAS HEARD. 

THE DISTRICT COURT THEREUPON MADE THE FOLLOWING FINDINGS OF FACT:
(A) THAT THE DISTRICT COURT HAD SPECIFICALLY RETAINED JURISDICTION TO
MODIFY THE CONSENT DECREE; (B) THAT PARAGRAPH 12 WAS "FRAMED UPON THE
BASIS THAT THE ULTIMATE RIGHTS OF THE PARTIES THEREUNDER SHOULD BE
DETERMINED BY THE GOVERNMENT'S CIVIL ANTITRUST PROCEEDINGS AGAINST
GENERAL MOTORS CORPORATION AND AFFILIATED COMPANIES"; (C) THAT "TIME
WAS NOT OF THE ESSENCE WITH RESPECT TO LAPSE OF THE BAR AGAINST
AFFILIATION (BETWEEN CHRYSLER AND COMMERCIAL CREDIT COMPANY OR ANY
OTHER FINANCE COMPANY)"; (D) "THAT TO SAFEGUARD DEFENDANTS AGAINST
UNDUE DELAY IN SUCH PROCEEDINGS THE DECREE PROVIDED FOR SUSPENSION OF
CERTAIN OF ITS PROHIBITIONS IN THE EVENT CONVICTIONS WERE NOT OBTAINED
IN THE CRIMINAL CASE AGAINST GENERAL MOTORS CORPORATION BY JANUARY 1,
1940"; (E) "THAT THE DECREE PROVIDED FOR A TERMINATION OF THE BAR
AGAINST AFFILIATION, IF THE CIVIL PROCEEDINGS AGAINST GENERAL MOTORS
CORPORATION WERE NOT SUCCESSFULLY CONCLUDED BY A COURT OF LAST RESORT
BY JANUARY 1, 1941"; (F) THAT A CONVICTION HAD BEEN OBTAINED IN THE
CRIMINAL PROCEEDINGS AGAINST GENERAL MOTORS ON NOVEMBER 17, 1939; (G)
"THAT THE GOVERNMENT HAS PROCEEDED DILIGENTLY AND EXPEDITIOUSLY IN ITS
SUIT TO DIVORCE GENERAL MOTORS ACCEPTANCE CORPORATION FROM GENERAL
MOTORS CORPORATION"; AND (H) "THAT FURTHER EXTENSION OF THE BAR AGAINST
AFFILIATION WILL NOT IMPOSE A SERIOUS BURDEN UPON DEFENDANTS."  IT THEN
CONCLUDED AS A MATTER OF LAW "THAT THE PURPOSE AND INTENT OF THE DECREE
WILL BE CARRIED OUT IF CHRYSLER IS GIVEN THE OPPORTUNITY AT ANY FUTURE
TIME TO PROPOSE A PLAN FOR THE ACQUISITION OF A FINANCE COMPANY, AND TO
MAKE A SHOWING THAT SUCH PLAN IS NECESSARY TO PREVENT CHRYSLER
CORPORATION FROM BEING PUT AT A COMPETITIVE DISADVANTAGE DURING THE
PENDENCY OF COMPLAINANT'S CIVIL LITIGATION AGAINST GENERAL MOTORS
CORPORATION, ET AL." 

UPON THE BASIS OF THESE FINDINGS AND CONCLUSIONS, THE DISTRICT COURT
ENTERED AN ORDER MODIFYING PARAGRAPH 12 BY CHANGING THE DATE TO JANUARY
1, 1943, IN COMPLIANCE WITH THE GOVERNMENT'S MOTION.  THE CASE IS
BEFORE US ON DIRECT APPEAL FROM THIS ORDER.  15 U.S.C. SEC. 29, 28
U.S.C. SEC. 345. 

IT IS CLEAR THAT UNDER PARAGRAPH 14 OF THE ORIGINAL DECREE THE
DISTRICT COURT HAD JURISDICTION TO MODIFY IT.  THE QUESTION IS WHETHER
THE CHANGE IN DATE IN PARAGRAPH 12 AMOUNTED TO AN ABUSE OF THIS POWER
TO MODIFY.  WE THINK THAT THE TEST TO BE APPLIED IN ANSWERING THIS
QUESTION IS WHETHER THE CHANGE SERVED TO EFFECTUATE OR TO THWART THE
BASIC PURPOSE OF THE ORIGINAL CONSENT DECREE.  UNITED STATES V. SWIFT &
CO., 286 U.S. 106. 

THE TEXT OF THE DECREE ITSELF PLAINLY REVEALS THE NATURE OF THAT
PURPOSE.  IT WAS, AS STATED IN THE DISTRICT COURT'S FINDINGS, "THAT THE
ULTIMATE RIGHTS OF THE PARTIES THEREUNDER SHOULD BE DETERMINED BY THE
GOVERNMENT'S CIVIL ANTITRUST PROCEEDINGS AGAINST GENERAL MOTORS
CORPORATION AND AFFILIATED COMPANIES."  THE TIME LIMITATION WAS
INSERTED TO PROTECT CHRYSLER FROM BEING PLACED AT A COMPETITIVE
DISADVANTAGE IN THE EVENT THAT THE GOVERNMENT UNDULY DELAYED THE
INITIATION AND PROSECUTION OF THE GENERAL MOTORS INJUNCTIVE
PROCEEDINGS.  THE DISTRICT COURT FOUND "THAT THE GOVERNMENT HAS
PROCEEDED DILIGENTLY AND EXPEDITIOUSLY IN ITS SUIT TO DIVORCE GENERAL
MOTORS ACCEPTANCE CORPORATION FROM GENERAL MOTORS CORPORATION."  THERE
IS ROOM FOR ARGUMENT THAT THIS STATEMENT IS MARKEDLY GENEROUS TO THE
GOVERNMENT, INASMUCH AS THE CIVIL SUIT AGAINST GENERAL MOTORS WAS NOT
INSTITUTED UNTIL ALMOST TWO YEARS AFTER THE ENTRY OF THE CONSENT DECREE
AND ONLY THREE MONTHS PRIOR TO THE LIMITING DATE IN PARAGRAPH 12.  BUT
THE FINDING IS SUPPORTED BY SEVERAL CIRCUMSTANCES:  THE EXTENDED COURSE
OF THE APPEALS IN THE CRIMINAL PROCEEDINGS AGAINST GENERAL MOTORS, FOR
WHICH THE GOVERNMENT WAS NOT RESPONSIBLE; THE OBVIOUS BEARING OF THE
RESULTS IN THAT LITIGATION UPON THE METHOD OF HANDLING THE CIVIL
LITIGATION WITH GENERAL MOTORS; AND THE RULING OF THE DISTRICT COURT IN
ILLINOIS IN JULY, 1941, IN THE GENERAL MOTORS CIVIL ACTION,
INDEFINITELY EXTENDING THE TIME TO ANSWER DESPITE THE GOVERNMENT'S
OBJECTION, PRESUMABLY TO AWAIT THE FINAL DISPOSITION OF THE CRIMINAL
CASE.  IN VIEW OF THESE CONSIDERATIONS, THE FINDING OF THE COURT BELOW
WAS NOT UNREASONABLE, AND WE DO NOT THINK THAT THE GOVERNMENT LOST ITS
RIGHT TO SEEK A MODIFICATION OF THE DECREE.    THE CONTROLLING FACTOR
THUS BECOMES WHETHER THE EXTENSION OF THE BAN ON AFFILIATION CONTAINED
IN PARAGRAPH 12 PLACES CHRYSLER AT A COMPETITIVE DISADVANTAGE. 
CHRYSLER MADE NO SHOWING TO THAT EFFECT IN THE DISTRICT COURT.  THE
ORDER OF DECEMBER 21, 1941 SET THE HEARING FOR FEBRUARY 16, 1942, WITH
THE EXPLANATION THAT CHRYSLER HAD "REQUESTED A CONTINUANCE IN ORDER TO
PRODUCE FURTHER EVIDENCE."  BUT ON FEBRUARY 16 NO EVIDENCE WAS
FORTHCOMING.  THE RECORD THEREFORE REVEALS THAT CHRYSLER TERMINATED ITS
AFFILIATION WITH COMMERCIAL CREDIT IN 1938 BEFORE THE CONSENT DECREE
WAS ENTERED, AND DOES NOT REVEAL THAT IT HAS SINCE ASSERTED ANY DESIRE
OR INTENTION TO AFFILIATE WITH COMMERCIAL CREDIT OR WITH ANY OTHER
FINANCE COMPANY.  MOREOVER, WE CANNOT BE BLIND TO THE FACT THAT THE
COMPLETE CESSATION OF THE MANUFACTURE OF NEW AUTOMOBILES AND LIGHT
TRUCKS HAS DRASTICALLY MINIMIZED THE SIGNIFICANCE OF THE COMPETITIVE
FACTOR.  FN4  CONSEQUENTLY THERE IS NO WARRANT FOR DISTURBING THE
FINDING OF THE COURT BELOW "THAT FURTHER EXTENSION OF THE BAR AGAINST
AFFILIATION WILL NOT IMPOSE A SERIOUS BURDEN UPON DEFENDANTS."  IF
CHRYSLER DESIRES TO AFFILIATE WITH A FINANCE COMPANY AND FEELS THAT ITS
INABILITY TO DO SO PLACES IT AT A DISADVANTAGE WITH ITS COMPETITORS, IT
SHOULD MAKE SUCH A SHOWING TO THE DISTRICT COURT.  THAT COURT EXPRESSLY
DECLARED THAT CHRYSLER WAS FREE AT ANY TIME TO PROPOSE A PLAN FOR
AFFILIATION AND TO DEMONSTRATE THAT SUCH A PLAN IS NECESSARY TO AVOID
UNFAIRNESS.  AFFIRMED. 

FN1  26 STAT. 209, 15 U.S.C. SEC. 1. 

FN2  CHRYSLER'S ANSWER INCLUDED AN ALLEGATION THAT IT HAD COMPLETELY
TERMINATED ITS AFFILIATION WITH COMMERCIAL CREDIT COMPANY BY FEBRUARY,
1938. 

FN3  THE CONSENT DECREE AGAINST FORD IS SUBSTANTIALLY THE SAME. 

FN4  SEE THE ORDER OF JANUARY 21, 1942, OF THE DIRECTOR OF PRIORITIES
OF THE OFFICE OF PRODUCTION MANAGEMENT.  F.R. DOCS.  41-636, 42-637, 7
F.R. 473. 

MR. JUSTICE ROBERTS, MR. JUSTICE MURPHY AND MR. JUSTICE JACKSON TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

IN THE SPRING OF 1938 THE GOVERNMENT INSTITUTED CRIMINAL PROCEEDINGS
AGAINST THE THREE LEADING AUTOMOBILE MANUFACTURERS, CHRYSLER, FORD, AND
GENERAL MOTORS.  FOR PRESENT PURPOSES, FORD MAY BE DISREGARDED.  EACH
INDICTMENT CHARGED VIOLATION OF THE SHERMAN LAW ARISING OUT OF THE
MANUFACTURER'S AFFILIATION WITH A FINANCE COMPANY AND ITS EMPLOYMENT OF
CERTAIN TRADE PRACTICES.  CHRYSLER WAS PREPARED TO CONSENT TO A DECREE
PROHIBITING IT FROM AFFILIATION WITH ANY FINANCE COMPANY, IN ADDITION
TO ITS ACCEPTANCE OF RESTRAINTS AGAINST ALLEGED ILLEGAL TRADE
PRACTICES, PROVIDED, HOWEVER, THAT THE GOVERNMENT SUCCEEDED IN
OBTAINING SIMILAR RELIEF AGAINST GENERAL MOTORS.  THE PROBLEM BEFORE
THE NEGOTIATORS OF THE CONSENT DECREE WAS, THEREFORE, THAT OF
DETERMINING HOW LONG CHRYSLER SHOULD REMAIN SUBJECT TO THE RESTRAINTS
IMPOSED BY THE DECREE WHILE GENERAL MOTORS, CONTESTING THE CLAIMS OF
THE GOVERNMENT, REFUSED TO COME TO TERMS WITH IT AND PUT IT TO ITS
LAW.  AS THE GOVERNMENT RECOGNIZES IN ITS BRIEF HERE, CHRYSLER WAS
"ENTITLED TO PROTECTION AGAINST UNDUE DELAY IN THE PROSECUTION OF THE
PROCEEDINGS AGAINST GENERAL MOTORS."  WITH RESPECT TO THE PROHIBITION
AGAINST AFFILIATION, THE PROBLEM WAS SOLVED BY PROVIDING IN PARAGRAPH
12 THAT IF THE GOVERNMENT SHOULD NOT HAVE OBTAINED A FINAL DECREE
AGAINST GENERAL MOTORS BY JANUARY 1, 1941, REQUIRING GENERAL MOTORS TO
DIVEST ITSELF OF ALL INTEREST IN ITS AFFILIATED FINANCE COMPANY, THE
PROHIBITION AGAINST CHRYSLER WOULD CEASE.  THIS WAS MADE AN "EXPRESS
CONDITION" NOTWITHSTANDING ANY OTHER PROVISIONS IN THE DECREE.  FN1
OBVIOUSLY, IT WAS AN ESSENTIAL FEATURE OF THE CONSENT DECREE AGAINST
CHRYSLER THAT THE PROHIBITION OF AFFILIATION WITH THE FINANCE COMPANY
SHOULD RESULT IN THIS GREAT COMPETITIVE DISADVANTAGE ONLY LONG ENOUGH
TO ENABLE THE GOVERNMENT TO PRESS ITS CLAIM AGAINST GENERAL MOTORS TO
SUCCESSFUL CONCLUSION WITH ALL REASONABLE SPEED.  THE PARTIES MIGHT
HAVE REFRAINED FROM FIXING ANY DEFINITE PERIOD, LEAVING THE MATTER
WHOLLY FOR DETERMINATION IN THE FUTURE AND BY UNDEFINED STANDARDS OF
REASONABLENESS.  INSTEAD, THE GOVERNMENT CHOSE TO SPECIFY WITH
PARTICULARITY THE LENGTH OF THE PERIOD - MORE THAN TWO YEARS - IN WHICH
CHRYSLER WOULD BE REQUIRED TO BEAR COMPETITIVE HARDSHIPS RESULTING FROM
THE LACK OF THE SAME RESTRAINTS UPON GENERAL MOTORS. 

CONSIDERING THE SCOPE AND NATURE OF THE DECREE, THE INTERESTS, BOTH
PUBLIC AND PRIVATE, WITH WHICH IT WAS DEALING, AND ITS TECHNICAL
DRAFTSMANSHIP, THERE CAN BE NO DOUBT THAT THE PRECISE LIMITS OF
PARAGRAPH 12 WERE NOT CASUALLY OR CARELESSLY DEFINED.  OF COURSE, THE
DISTRICT COURT HAD THE POWER TO MODIFY THE CONSENT DECREE IN ORDER TO
EFFECTUATE ITS BASIC PURPOSES.  THE FACT THAT THE DECREE EMBODIED THE
AGREEMENT OF THE PARTIES NO MORE LIMITED THE POWER OF THE COURT THAN IF
IT HAD BEEN A CONTESTED DECREE.  SWIFT & CO. V. UNITED STATES, 276 U.S.
311; UNITED STATES V. SWIFT & CO., 286 U.S. 106, 114; UNITED STATES V.
INTERNATIONAL HARVESTER CO., 274 U.S. 693.  THE DECREE ITSELF CONTAINS
AN EXPRESS RECOGNITION OF THE COURT'S POWER OF MODIFICATION, BUT SUCH A
RESERVATION PLAINLY ADDED NOTHING TO THE DECREE AND SUBTRACTED NOTHING
FROM THE SIGNIFICANCE OF TERMS MADE AN EXPRESS CONDITION OF THE IMPOSED
RESTRAINT.  THE BURDEN WAS STILL, AS IT ALWAYS IS, ON THE MOVING PARTY
AND HERE IT WAS THE GOVERNMENT - TO SHOW THAT CIRCUMSTANCES JUSTIFIED
A CHANGE IN SUCH TERMS.  IN FACT, ON DECEMBER 17, 1940, WITHIN THREE
WEEKS OF THE EXPIRATION OF THE RESTRAINT AGAINST CHRYSLER, THE
GOVERNMENT SOUGHT FOR AN EXTENSION OF THAT RESTRAINT FOR ANOTHER YEAR
UPON THE GROUNDS THAT THE TIME "WAS BY MISTAKE OF THE PARTIES
UNDERESTIMATED."  THE EXTENSION WAS OPPOSED, BUT GRANTED BY THE
DISTRICT COURT.  AN APPEAL WAS BROUGHT HERE BUT WAS DISMISSED ON
DECEMBER 8, 1941, "FOR WANT OF A QUORUM OF JUSTICES QUALIFIED TO SIT." 
CHRYSLER CORPORATION V. UNITED STATES, 314 U.S. 583.  A WEEK LATER, THE
PRESENT PROCEEDINGS WERE BEGUN FOR A FURTHER EXTENSION.  THE EFFECT OF
THE MODIFICATION SOUGHT BY THE GOVERNMENT AND GRANTED BY THE COURT
BELOW WAS TO EXTEND UNTIL JANUARY 1, 1943, THE RESTRICTIONS UPON
CHRYSLER'S FREEDOM OF ACTION WHICH WERE NOT IMPOSED UPON ITS PRINCIPAL
RIVAL. 

IN ORDER TO JUSTIFY A MODIFICATION HAVING SUCH DRASTIC BUSINESS
CONSEQUENCES, IT WAS SURELY INCUMBENT UPON THE GOVERNMENT TO SHOW THAT
IT HAD PROCEEDED WITH ALL DELIBERATE SPEED AGAINST GENERAL MOTORS.  THE
RECORD REVEALS THAT NO SUCH SHOWING WAS MADE.  THE HISTORY OF THE
LITIGATION AGAINST GENERAL MOTORS PROVES THAT IT COULD NOT HAVE BEEN
MADE.  ALTHOUGH THE CONSENT DECREE AGAINST CHRYSLER WAS ENTERED ON
NOVEMBER 15, 1938, THE TRIAL IN THE CRIMINAL ACTION AGAINST GENERAL
MOTORS WAS NOT BEGUN UNTIL OCTOBER 9, 1939.  THIS TRIAL RESULTED IN A
CONVICTION AGAINST GENERAL MOTORS ON NOVEMBER 17, 1939.  SINCE THE
TRIAL JUDGE DID NOT INSTRUCT THE JURY THAT AFFILIATION AS SUCH WAS
UNLAWFUL, AND INDEED THE CONTRARY, THE CRIMINAL PROCEEDING COULD NO
LONGER BE CLAIMED TO CONTROL THE VALIDITY OF THE AFFILIATION PROHIBITED
BY PARAGRAPH 12 OF THE CHRYSLER DECREE.  CONSEQUENTLY, IT IS IRRELEVANT
THAT THE CRIMINAL PROCEEDINGS AGAINST GENERAL MOTORS WERE NOT FINALLY
CONCLUDED UNTIL THIS COURT DENIED CERTIORARI ON OCTOBER 13, 1941.  BUT,
IN ANY EVENT, THE CONTINGENCIES OF REVIEW OF A CRIMINAL CONVICTION DO
NOT JUSTIFY HOLDING IN ABEYANCE AN EQUITY SUIT, EVEN THOUGH IT CONCERNS
A RELATED ISSUE, WHEN THE DETERMINATION OF THAT EQUITY SUIT WITHIN A
TIME CERTAIN, TO WIT, JANUARY 1, 1941, EXPLICITLY DEFINED THE DURATION
OF THE RESTRAINT IMPOSED UPON CHRYSLER.  THE APPEAL OF THE CRIMINAL
CONVICTION AGAINST GENERAL MOTORS WAS AT LAST DISPOSED OF IN THE
CIRCUIT COURT OF APPEALS ON MAY 1, 1941.  121 F.2D 376.  BUT EVEN THEN
THE GOVERNMENT DID NOTHING TO PRESS THE EQUITY SUIT, INDEED IT PROMOTED
ITS FURTHER DELAY. 

IT WAS NOT UNTIL OCTOBER 4, 1940, THAT THE GOVERNMENT BROUGHT A CIVIL
SUIT IN EQUITY AGAINST GENERAL MOTORS.  THIS WAS ALMOST TWO YEARS AFTER
THE ENTRY OF THE DECREE AGAINST CHRYSLER, AND, PERHAPS MORE IMPORTANT,
LESS THAN THREE MONTHS BEFORE THE DATE UPON WHICH THE BAR AGAINST
CHRYSLER WAS TO BE LIFTED.  HERE AGAIN THE RECORD CONTAINS NOTHING TO
EXPLAIN THIS PERIOD OF INACTION, WHEN, BY THE EXPRESS TERMS OF THE
DECREE, THE DUTY OF ACTION WAS LAID UPON THE GOVERNMENT AND THE RESULT
OF SUCH ACTION WAS OF OBVIOUS BUSINESS IMPORTANCE TO THE STATUS OF
CHRYSLER UNDER ITS DECREE.  NOR DOES THE RECORD SHOW THAT THE
GOVERNMENT UNDERTOOK TO PREVENT ANY UNTOWARD DELAYS IN THE
DETERMINATION OF THE GENERAL MOTORS CIVIL SUIT.  ON THE CONTRARY, NO
LESS THAN SIX TIMES DID THE GOVERNMENT AGREE TO EXTENSIONS OF THE TIME
WITHIN WHICH GENERAL MOTORS SHOULD PLEAD.  ON OCTOBER 26, 1940, THE
GOVERNMENT ACQUIESCED IN AN EXTENSION TO JANUARY 20, 1941; ON JANUARY
16, 1941, IN AN EXTENSION TO JANUARY 27, 1941; ON JANUARY 24, 1941, IN
AN EXTENSION OF MORE THAN THREE MONTHS, TO MAY 1, 1941; ON APRIL 21,
1941, IN A FURTHER EXTENSION TO JUNE 15, 1941; AND ON JUNE 13, 1941, IN
AN ADDITIONAL EXTENSION TO JUNE 21, 1941.  ON THAT DATE, THE GOVERNMENT
FILED AN AMENDED COMPLAINT, AND ON JUNE 28, 1941, IT AGREED TO A
FURTHER EXTENSION TO JULY 15, 1941.  ON THE LATTER DATE, GENERAL MOTORS
REQUESTED THE COURT THAT IT BE GIVEN A FURTHER EXTENSION; THE REQUEST
RECITED THE GOVERNMENT'S OPPOSITION TO THE MOTION BECAUSE OF ITS EFFECT
UPON THE CHRYSLER DECREE.  THE COURT NEVERTHELESS GRANTED GENERAL
MOTORS AN INDEFINITE EXTENSION.  ON NOVEMBER 29, 1941, THE GOVERNMENT
FOR THE FIRST TIME MOVED THAT GENERAL MOTORS BE REQUIRED TO FILE AN
ANSWER OR OTHER PLEADING.  IN RESPONSE TO THIS MOTION, THE COURT
ORDERED THAT GENERAL MOTORS FILE A PLEADING BY JANUARY 15, 1942. 

THIS IS THE BACKGROUND OF FACT IN THE LIGHT OF WHICH THE DISTRICT
COURT WAS REQUIRED TO JUDGE WHETHER THE GOVERNMENT WAS EQUITABLY
ENTITLED TO IMPOSE UPON CHRYSLER FOR A FURTHER PERIOD THE CURTAILMENT
OF ITS FREEDOM OF ACTION EMBODIED IN THE CONSENT DECREE.  RELEVANT TO
ITS DETERMINATION, ALSO, WAS THE FACT THAT PARAGRAPH 12 PROVIDED ONLY
THAT, IF THE GOVERNMENT DID NOT OBTAIN A FINAL ORDER OF DIVORCEMENT
AGAINST GENERAL MOTORS BY JANUARY 1, 1941, THEN NOTHING IN THE DECREE
AGAINST CHRYSLER WOULD PROHIBIT THE LATTER FROM AFFILIATING WITH A
FINANCE COMPANY.  NOTHING IN PARAGRAPH 12 GAVE, OR EVEN PURPORTED TO
GIVE, CHRYSLER ANY IMMUNITY FROM THE ANTITRUST LAWS AFTER JANUARY 1,
1941.  THEREFORE, IF THE DECREE WERE NOT MODIFIED, IT WOULD NOT MEAN
THAT THE GOVERNMENT WOULD BE POWERLESS TO PROCEED AGAINST CHRYSLER IF
THE LATTER RESUMED THE ACTIVITIES FORBIDDEN BY THE DECREE.  THE
GOVERNMENT WOULD STILL BE FREE TO TAKE ANY ACTION IT MIGHT HAVE TAKEN
BEFORE CHRYSLER CONSENTED TO THE DECREE AGAINST IT. 

A COURT OF EQUITY IS NOT JUST AN UMPIRE BETWEEN TWO LITIGANTS.  IN A
VERY SPECIAL SENSE, THE PUBLIC INTEREST IS IN ITS KEEPING AS THE
CONSCIENCE OF THE LAW.  THE CIRCUMSTANCE THAT ONE OF THE PARTIES IS THE
GOVERNMENT DOES NOT IN ITSELF MEAN THAT THE INTEREST WHICH IT ASSERTS
DEFINES AND COMPREHENDS THE PUBLIC INTEREST WHICH THE COURT MUST
VINDICATE.  A MODIFICATION OF A DECREE REQUESTED BY THE GOVERNMENT IS
NOT IPSO FACTO A MODIFICATION WARRANTED BY CONSIDERATIONS WHICH CONTROL
EQUITY.  REGARD FOR THE PROPER ADMINISTRATION OF JUSTICE, WHICH MAKES
DETERMINATIONS DEPEND UPON PROOF AND NOT UPON UNSUPPORTED ASSERTIONS OF
ONE OF THE LITIGANTS, IS A VITAL ASPECT OF THE PUBLIC INTEREST.  THE
BURDEN OBVIOUSLY RESTED UPON THE GOVERNMENT TO SHOW GOOD CAUSE FOR
DISREGARDING AN EXPRESS PROVISION IN A CAREFULLY FRAMED DECREE, AND
EXTENDING TO TWICE ITS ORIGINAL DURATION THE PERIOD OF RESTRAINT
AGAINST CHRYSLER.  SO TO ENLARGE THE BURDEN OF THE DECREE WITHOUT ANY
SUCH SHOWING BY THE GOVERNMENT IS A ONE-SIDED RESTRICTION OF CHRYSLER'S
FREEDOM OF ACTION, AT LEAST OF ITS RIGHT TO PROVE THAT THE RESTRICTED
ACTION IS INNOCENT.  INSTEAD OF EXACTING SUCH PROOF FROM THE
GOVERNMENT, THE DISTRICT COURT CAST UPON CHRYSLER THE DUTY OF SHOWING
THAT IT WOULD NOT BE PREJUDICED IF THE FETTERS REMAINED AFTER THE
PERIOD FIXED BY THE DECREE.  HE WHO SEEKS RELIEF FROM EQUITY HAS THE
BURDEN OF SHOWING THAT HE IS ENTITLED TO IT.  IT IS UNFAIR TO CAST UPON
CHRYSLER THE BURDEN OF PROVING THAT IT WOULD NOT BE HARMED IF THE
GOVERNMENT GOT WHAT IT WANTED.  AS A PRACTICAL BUSINESS MATTER,
CHRYSLER IS NOT STANDING ON AN ABSTRACT RIGHT TO DEVISE MEANS OF
FINANCING ITS SALES SIMPLY BECAUSE IT IS NOT READY TODAY WITH
ARRANGEMENTS FOR A FINANCIAL CORPORATION, AND THE WAR PRECLUDES THEM. 
SUCH ARRANGEMENTS CANNOT BE DEVISED OVERNIGHT.  IT MAY WELL TAKE A YEAR
TO GET THEM UNDER WAY. 

CONSIDERING, ON THE ONE HAND, THE DRASTIC ECONOMIC DISADVANTAGE TO
WHICH CHRYSLER IS PUT, IN BEING SUBJECTED TO THE HAZARD OF CONTEMPT
PROCEEDINGS IF IT TAKES ANY STEPS TOWARD PREPARING FOR AFFILIATION IN
THE FUTURE, AND, ON THE OTHER HAND, THE FAILURE OF THE GOVERNMENT TO
EXPLAIN THE APPARENT LACK OF DILIGENCE IN PROSECUTING THE PROCEEDINGS
AGAINST GENERAL MOTORS AND TO SHOW THAT THE MODIFICATION WAS NECESSARY
TO ACHIEVE THE PURPOSES OF THE CONSENT DECREE, I AM BOUND TO CONCLUDE
THAT THE ORDER OF THE DISTRICT COURT, UNEXPLAINED BY ANY OPINION, WAS
NOT WITHIN THE PROPER LIMITS OF ITS DISCRETION. 

FN1  THE FULL TEXT OF PARAGRAPH 12 IS AS FOLLOWS: 

"THE RESPONDENT FINANCE COMPANY SHALL NOT PAY TO ANY AUTOMOBILE
MANUFACTURING COMPANY AND THE MANUFACTURER SHALL NOT OBTAIN FROM ANY
FINANCE COMPANY ANY MONEY OR OTHER THING OF VALUE AS A BONUS OR
COMMISSION ON ACCOUNT OF RETAIL TIME SALES PAPER ACQUIRED BY THE
FINANCE COMPANY FROM DEALERS OF THE MANUFACTURER.  THE MANUFACTURER
SHALL NOT MAKE ANY LOAN TO OR PURCHASE THE SECURITIES OF RESPONDENT
FINANCE COMPANY OR ANY OTHER FINANCE COMPANY, AND IF IT SHALL PAY ANY
MONEY TO RESPONDENT FINANCE COMPANY OR ANY OTHER FINANCE COMPANY WITH
THE PURPOSE OR EFFECT OF INDUCING OR ENABLING SUCH FINANCE COMPANY TO
OFFER TO THE DEALERS OF THE MANUFACTURER A LOWER FINANCE CHARGE THAN IT
WOULD OFFER IN THE ABSENCE OF SUCH PAYMENT, IT SHALL OFFER IN WRITING
TO MAKE, AND IF SUCH OFFER IS ACCEPTED IT SHALL MAKE, PAYMENT UPON
SUBSTANTIALLY SIMILAR BASES, TERMS AND CONDITIONS TO EVERY OTHER
FINANCE COMPANY OFFERING SUCH LOWER FINANCE CHARGE; PROVIDED, HOWEVER,
THAT NOTHING IN THIS PARAGRAPH CONTAINED SHALL BE CONSTRUED TO PROHIBIT
THE MANUFACTURER FROM ACQUIRING NOTES, BONDS, COMMERCIAL PAPER, OR
OTHER EVIDENCE OF INDEBTEDNESS OF RESPONDENT FINANCE COMPANY OR ANY
OTHER FINANCE COMPANY IN THE OPEN MARKET.    "IT IS AN EXPRESS
CONDITION OF THIS DECREE THAT NOTWITHSTANDING THE PROVISIONS OF THE
PRECEDING PARAGRAPH OF THIS PARAGRAPH 12 AND OF ANY OTHER PROVISIONS OF
THIS DECREE, IF AN EFFECTIVE FINAL ORDER OR DECREE NOT SUBJECT TO
FURTHER REVIEW SHALL NOT HAVE BEEN ENTERED ON OR BEFORE JANUARY 1,
1941, REQUIRING GENERAL MOTORS CORPORATION PERMANENTLY TO DIVEST ITSELF
OF ALL OWNERSHIP AND CONTROL OF GENERAL MOTORS ACCEPTANCE CORPORATION
AND OF ALL INTEREST THEREIN, THEN AND IN THAT EVENT, NOTHING IN THIS
DECREE SHALL PRECLUDE THE MANUFACTURER FROM ACQUIRING AND RETAINING
OWNERSHIP OF AND/OR CONTROL OVER OR INTEREST IN ANY FINANCE COMPANY, OR
FROM DEALING WITH SUCH FINANCE COMPANY AND WITH THE DEALERS IN THE
MANNER PROVIDED IN THIS DECREE OR IN ANY ORDER OF MODIFICATION OR
SUSPENSION THEREOF ENTERED PURSUANT TO PARAGRAPH 12A.  THE COURT, UPON
APPLICATION OF THE RESPONDENTS OR ANY OF THEM, WILL ENTER AN ORDER OR
DECREE TO THAT EFFECT AT THE FOOT OF THIS DECREE, AND THE RIGHT OF ANY
RESPONDENT HEREIN TO MAKE THE APPLICATION AND TO OBTAIN SUCH ORDER OR
DECREE IS EXPRESSLY CONCEDED AND GRANTED." 

MR. JUSTICE REED JOINS IN THIS DISSENT. 
..END :



U.S. EX REL. COY V. UNITED STATES, 316 U.S. 342 


NO. 973.  ARGUED MAY 4, 5, 1942.  - DECIDED MAY 25, 1942.  - 124 F.2D
1019, DISMISSED. 


1.  WHERE A JUDGMENT OF THE CIRCUIT COURT OF APPEALS AFFIRMS AN ORDER
OF THE DISTRICT COURT DENYING FOR WANT OF JURISDICTION A MOTION TO
CORRECT A SENTENCE MADE BY THE CONVICT AFTER EXPIRATION OF THE TERM IN
WHICH THE SENTENCE WAS IMPOSED, THE TIME ALLOWED FOR PETITION TO THIS
COURT FOR A WRIT OF CERTIORARI IS GOVERNED BY RULE XI OF THE RULES IN
CRIMINAL CASES, AND IS 30 DAYS AFTER THE ENTRY OF THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS.  P. 344. 

2.  THE FAILURE OF THE RULES IN CRIMINAL CASES TO FIX THE TIME
ALLOWED FOR APPEALING SUCH AN ORDER OF THE DISTRICT COURT TO THE
CIRCUIT COURT OF APPEALS IS A CASUS OMISSUS WHICH LEFT IN FULL FORCE
SEC. 8(C) OF THE JUDICIARY ACT OF FEBRUARY 13, 1925, REQUIRING
APPLICATION FOR THE ALLOWANCE OF APPEALS TO THE CIRCUIT COURT OF
APPEALS TO BE MADE WITHIN THREE MONTHS AFTER THE ENTRY OF THE ORDER
APPEALED FROM.  P. 345. 

UNITED STATES EX REL. COY V. UNITED STATES ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 652, TO REVIEW A JUDGMENT AFFIRMING AN ORDER OF
THE DISTRICT COURT, 38 F.SUPP.  610, DISMISSING A MOTION TO CORRECT A
SENTENCE OUT OF TERM FOR WANT OF JURISDICTION. 

PER CURIAM. 

IN 1937, PETITIONER WAS TRIED AND CONVICTED ON AN INDICTMENT CHARGING
HIM WITH VIOLATION OF SECS. 2(A) AND (B) OF THE ACT OF MAY 18, 1934, 12
U.S.C. SEC. 588(B), WHICH RESPECTIVELY DEFINE THE OFFENSES (A) OF
TAKING OR ATTEMPTING TO TAKE BY FORCE FROM ANY PERSON MONEY OR PROPERTY
BELONGING TO A BANK INSURED WITH THE FEDERAL DEPOSIT INSURANCE
CORPORATION, AND (B), IN THE COMMISSION OF SUCH OFFENSE, ASSAULTING ANY
PERSON, OR PUTTING IN JEOPARDY THE LIFE OF ANY PERSON BY USE OF A
DANGEROUS WEAPON. 

THE FIRST COUNT OF THE INDICTMENT CHARGED THE FORCIBLE TAKING OF
MONEY OF THE BANK FROM THE PERSON OF ANOTHER.  THE SECOND COUNT CHARGED
THE SAME TAKING BY USE OF A DANGEROUS WEAPON, AND THE THIRD ALLEGED A
CONSPIRACY OF PETITIONER WITH OTHERS TO COMMIT THE OFFENSES SET OUT IN
THE FIRST TWO COUNTS.  PETITIONER WAS SENTENCED TO TWENTY YEARS
IMPRISONMENT ON COUNT ONE, AND A YEAR AND A DAY ON EACH OF COUNTS TWO
AND THREE, THE THREE SENTENCES TO RUN CONSECUTIVELY.  HE TOOK NO
APPEAL, BUT TWO YEARS LATER MOVED IN THE TRIAL COURT TO SET ASIDE THE
SENTENCE ON THE FIRST COUNT ON THE GROUND THAT THE OFFENSE CHARGED IN
THE FIRST WAS INCLUDED IN THAT CHARGED IN THE SECOND.  THE DISTRICT
COURT DENIED THE MOTION, HOLDING THAT ITS JURISDICTION OF THE CAUSE
ENDED WITH THE TERM OF COURT IN WHICH PETITIONER WAS SENTENCED.  38
F.SUPP.  610. 

AFTER THE LAPSE OF MORE THAN THE FIVE DAYS PRESCRIBED BY RULE III OF
THE RULES IN CRIMINAL CASES, BUT LESS THAN THE THREE MONTHS PRESCRIBED
BY SEC. 8(C) OF THE ACT OF FEBRUARY 13, 1925, 28 U.S.C. SEC. 230,
PETITIONER FILED A NOTICE OF APPEAL AND ASKED LEAVE TO APPEAL IN FORMA
PAUPERIS, WHICH THE DISTRICT COURT ALLOWED.  THE CIRCUIT COURT OF
APPEALS AFFIRMED THE ORDER DENYING PETITIONER'S APPLICATION "UPON THE
GROUNDS AND FOR THE REASONS SET FORTH IN THE OPINION OF THE DISTRICT
JUDGE."  124 F.2D 1019.  WE GRANTED CERTIORARI ON A PETITION FILED MORE
THAN THIRTY DAYS AFTER THE ENTRY OF JUDGMENT BY THE COURT BELOW, AND
REQUESTED COUNSEL, IN PRESENTING THE CASE HERE, TO DISCUSS THE
QUESTIONS WHETHER THE TIME FOR APPEAL TO THE CIRCUIT COURT OF APPEALS
AND FOR PETITION FOR CERTIORARI TO THIS COURT ARE GOVERNED BY THE RULES
IN CRIMINAL CASES, AND IF NOT WHAT STATUTE APPLIES. 

RULE XI OF THE CRIMINAL RULES PROVIDES THAT "PETITION TO THE SUPREME
COURT OF THE UNITED STATES FOR WRIT OF CERTIORARI TO REVIEW A JUDGMENT
OF THE APPELLATE COURT SHALL BE MADE WITHIN THIRTY (30) DAYS AFTER THE
ENTRY OF THE JUDGMENT OF THAT COURT."  IF THE JUDGMENT OF THE COURT OF
APPEALS IS ONE TO WHICH RULE XI APPLIES, THE PETITION FOR CERTIORARI
WAS FILED TOO LATE AND WE ARE WITHOUT JURISDICTION.  PETITIONER INSISTS
THAT THE PRESENT PROCEEDING IS ONE NOT EMBRACED IN THE CRIMINAL RULES
SINCE THEY MAKE NO PROVISION GOVERNING THE APPEAL FROM THE ORDER OF THE
DISTRICT COURT; THAT, CONSEQUENTLY, CERTIORARI TO REVIEW THE JUDGMENT
OF THE CIRCUIT COURT OF APPEALS, AS IN OTHER PROCEEDINGS NOT WITHIN THE
CRIMINAL RULES, IS GOVERNED BY SEC. 8(A) OF THE ACT OF FEBRUARY 13,
1925, AS AMENDED, 28 U.S.C. SEC. 350, WHICH ALLOWS THREE MONTHS FOR
FILING THE PETITION.  CF. NYE V. UNITED STATES, 313 U.S. 33, 43-44. 

THE CRIMINAL RULES WERE PROMULGATED BY THIS COURT, 292 U.S. 661,
PURSUANT TO THE ACT OF MARCH 8, 1934, 18 U.S.C. SEC. 688, WHICH
AUTHORIZED THE COURT TO ADOPT "RULES OF PRACTICE AND PROCEDURE WITH
RESPECT TO ANY OR ALL PROCEEDINGS AFTER VERDICT, OR FINDING OF GUILT BY
THE COURT IF A JURY HAS BEEN WAIVED, OR PLEA OF GUILTY, IN CRIMINAL
CASES IN DISTRICT COURTS OF THE UNITED STATES."  THE STATUTE EXPRESSLY
AUTHORIZED THE COURT TO "PRESCRIBE THE TIMES FOR AND MANNER OF TAKING
APPEALS AND APPLYING FOR WRITS OF CERTIORARI."  IN ADOPTING THE RULES
IT WAS THE PURPOSE OF THIS COURT TO EXPEDITE APPEALS IN CRIMINAL
PROCEEDINGS; AND, AS DECLARED IN ITS ORDER PROMULGATING THEM, THEY WERE
TO APPLY "IN ALL PROCEEDINGS" AFTER PLEAS OR VERDICT OR FINDING OF
GUILT AND "IN ALL SUBSEQUENT PROCEEDINGS IN SUCH CASES IN THE UNITED
STATES CIRCUIT COURTS OF APPEALS  ...  AND IN THE SUPREME COURT OF THE
UNITED STATES." 

THE FAILURE TO PROVIDE IN RULE III OR ELSEWHERE FOR APPEALING AN
ORDER LIKE THE PRESENT FROM THE DISTRICT COURT TO THE CIRCUIT COURT OF
APPEALS IS A CASUS OMISSUS WHICH LEFT IN FULL FORCE SEC. 8(C) OF THE
JUDICIARY ACT OF FEBRUARY 13, 1925, 28 U.S.C. SEC. 230, WHICH REQUIRES
APPLICATION FOR THE ALLOWANCE OF APPEALS TO THE CIRCUIT COURT OF
APPEALS TO BE MADE WITHIN THREE MONTHS AFTER THE ENTRY OF THE ORDER
APPEALED FROM.  BUT THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IN
THIS CASE IS A JUDGMENT IN A CRIMINAL PROCEEDING AFTER VERDICT AND
JUDGMENT OF CONVICTION, AND THE PETITION FOR CERTIORARI TO REVIEW THE
JUDGMENT IS A "SUBSEQUENT PROCEEDING" IN SUCH A CASE TO WHICH RULE XI
SPECIFICALLY APPLIES. 

WE SEE NO REASON FOR EXCEPTING THE PETITION FOR CERTIORARI FROM THE
THIRTY-DAY LIMITATION OF RULE XI MERELY BECAUSE THE DRAFTSMEN OMITTED
TO PROVIDE IN RULE III FOR AN APPEAL FROM THE ORDER OF THE DISTRICT
COURT IN CASES LIKE THE PRESENT.  ON THE CONTRARY, SINCE THE PURPOSE IN
ADOPTING THE RULES WAS TO EXPEDITE CRIMINAL APPEALS, AND THE RULES IN
TERMS APPLY TO PETITIONS FOR CERTIORARI IN CRIMINAL CASES, THE EXPRESS
REQUIREMENTS OF RULE XI CANNOT RIGHTLY BE DISREGARDED EVEN THOUGH THE
GENERAL PURPOSE WAS NOT MADE COMPLETELY EFFECTIVE BECAUSE OF THE
FAILURE TO PROVIDE A SHORT PERIOD FOR APPEAL FROM THE ORDER OF THE
DISTRICT COURT.  DESPITE THIS OMISSION, RULE XI HAS MADE THE PURPOSE
EFFECTIVE IN THE CASE OF REVIEW BY CERTIORARI IN THIS COURT. 

THE WRIT WILL ACCORDINGLY BE DISMISSED FOR FAILURE TO COMPLY WITH
RULE XI.  WE HAVE NO OCCASION TO PASS ON THE QUESTION WHETHER THE
DISTRICT COURT'S DENIAL OF THE APPLICATION, ON A GROUND WHICH THE
GOVERNMENT SUGGESTS WAS ERRONEOUS, WILL BAR A SUBSEQUENT APPLICATION TO
THE DISTRICT COURT FOR SIMILAR RELIEF.  DISMISSED. 
..END :













NORTHERN PACIFIC RY. CO. V. U.S., 316 U.S. 346 


NO. 927.  ARGUED APRIL 29, 30, 1942.  - DECIDED MAY 25, 1942.  - 41
F.SUPP.  439, AFFIRMED. 


THE INTERSTATE COMMERCE COMMISSION FOUND THAT, AT CERTAIN COMPLAINING
MARKETS, THE RAILROADS ABSORBED SWITCHING CHARGES ON COMPETITIVE GRAIN
SHIPMENTS (I.E., TRAFFIC ORIGINATING AT POINTS SERVED BY MORE THAN ONE
RAILROAD), BUT NOT ON NON-COMPETITIVE OR LOCAL TRAFFIC (ORIGINATING AT
POINTS SERVED BY ONLY ONE RAILROAD), WHILE AT ALL OTHER MARKETS IN
CENTRAL-WESTERN TERRITORY THE CARRIERS ABSORBED THE SWITCHING CHARGES
ON BOTH COMPETITIVE AND NON-COMPETITIVE SHIPMENTS.  THIS PRACTICE, IT
FOUND, WAS AT VARIANCE WITH THE GENERAL PURPOSE OF THE GRAIN-RATE
STRUCTURE TO BRING ABOUT "AN ADJUSTMENT UNDER WHICH THE RATES TO AND
FROM ALL WESTERN MARKETS WOULD BE ON RELATIVELY THE SAME LEVEL, OR AN
ADJUSTMENT UNDER WHICH THE RATES TO AND FROM THE MARKETS WOULD
APPROXIMATE A MILEAGE PARITY," AND WAS SUPPORTED NEITHER BY REVENUE
CONSIDERATIONS NOR SOUND TRANSPORTATION FACTORS, AND WAS UNREASONABLE. 
HELD, THAT A CEASE-AND-DESIST ORDER BASED UPON THESE FINDINGS WAS
WITHIN THE STATUTORY AND CONSTITUTIONAL POWERS OF THE COMMISSION.  P.
348. 

NORTHERN PACIFIC RAILWAY CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MINNESOTA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT DISMISSING A SUIT TO SET
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.  SEE 245 I.C.C.
11. 

PER CURIAM. 

THIS IS AN APPEAL FROM A DECREE OF THE DISTRICT COURT, 41 F.SUPP. 
439, DISMISSING A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION, 245 I.C.C. 11, REQUIRING THE APPELLANT RAILROADS TO CEASE
AND DESIST FROM MAINTAINING CERTAIN ABSORPTION RULES AND PRACTICES
FOUND TO BE UNDULY DISCRIMINATORY AND UNREASONABLE, AND THEREFORE
OFFENSIVE TO THE INTERSTATE COMMERCE ACT, 49 U.S.C. SECS. 1(6), 3(1),
15(1). 

UPON COMPLAINT OF THE MINNEAPOLIS TRAFFIC ASSOCIATION, REPRESENTING
GRAIN INTERESTS IN MINNEAPOLIS, ST. PAUL, AND DULUTH, MINNESOTA, AND
SUPERIOR, WISCONSIN, THE COMMISSION INSTITUTED AN INQUIRY INTO THE
PRACTICES OF THE RAIL CARRIERS AT THE COMPLAINING MARKETS, WITH RESPECT
TO ABSORPTION OF CONNECTING-LINE SWITCHING CHARGES ON SO-CALLED
NONCOMPETITIVE OR LOCAL SHIPMENTS (I.E., ORIGINATING AT POINTS SERVED
BY ONLY ONE RAILROAD) OF GRAIN, GRAIN PRODUCTS, AND SEEDS.  AFTER
EXTENSIVE HEARINGS, THE COMMISSION FOUND THAT AT THE COMPLAINING
MARKETS THE RAILROADS GENERALLY ABSORBED THE SWITCHING CHARGES ON
COMPETITIVE TRAFFIC (I.E., ORIGINATING AT POINTS SERVED BY MORE THAN
ONE RAILROAD) BUT NOT ON NONCOMPETITIVE OR LOCAL TRAFFIC, WHILE AT ALL
OTHER MARKETS IN CENTRAL-WESTERN TERRITORY THE CARRIERS ABSORBED THE
SWITCHING CHARGES ON BOTH COMPETITIVE AND NONCOMPETITIVE SHIPMENTS. 
THIS PRACTICE, THE COMMISSION CONCLUDED, WAS WHOLLY AT VARIANCE WITH
THE GENERAL PURPOSE OF THE GRAIN-RATE STRUCTURE TO BRING ABOUT "AN
ADJUSTMENT UNDER WHICH THE RATES TO AND FROM ALL WESTERN MARKETS WOULD
BE ON RELATIVELY THE SAME LEVEL, OR AN ADJUSTMENT UNDER WHICH THE RATES
TO AND FROM THE MARKETS WOULD APPROXIMATE A MILEAGE PARITY."  245
I.C.C. 11, 13.  IT WAS FURTHER FOUND THAT THE CARRIERS' ABSORPTION
PRACTICES AT THE COMPLAINING MARKETS WERE SUPPORTED NEITHER BY REVENUE
CONSIDERATIONS NOR SOUND TRANSPORTATION FACTORS, AND THAT THE
WIDESPREAD ABSORPTION OF SWITCHING CHARGES ON NON-COMPETITIVE TRAFFIC
AT OTHER IMPORTANT MARKETS WAS STRONG EVIDENCE OF THE REASONABLENESS OF
SUCH PRACTICE AND OF THE UNREASONABLENESS OF THE CARRIERS' REFUSAL TO
ABSORB SUCH CHARGES AT THE COMPLAINING MARKETS.  UPON THE BASIS OF
THESE FINDINGS, THE COMMISSION ENTERED THE ORDER CHALLENGED ON THIS
APPEAL. 

NEITHER THE VALIDITY OF THE COMMISSION'S FINDINGS NOR ITS COMPLIANCE
WITH PROCEDURAL SAFEGUARDS IS ASSAILED HERE.  THE ORDER IS ATTACKED ON
THE GROUND THAT THE COMMISSION HAS EXCEEDED ITS CONSTITUTIONAL AND
STATUTORY POWERS. 

SUBJECT TO THE ACT "TO ESTABLISH, OBSERVE AND ENFORCE  ...  JUST AND
REASONABLE REGULATIONS AND PRACTICES AFFECTING CLASSIFICATIONS, RATES,
OR TARIFFS,  ...  AND ALL OTHER MATTERS RELATING TO OR CONNECTED WITH
THE RECEIVING, HANDLING, TRANSPORTING, STORING, AND DELIVERY OF
PROPERTY  ...  WHICH MAY BE NECESSARY OR PROPER TO SECURE THE SAFE AND
PROMPT RECEIPT, HANDLING, TRANSPORTATION, AND DELIVERY OF PROPERTY  ...
UPON JUST AND REASONABLE TERMS, AND EVERY UNJUST AND UNREASONABLE
CLASSIFICATION, REGULATION, AND PRACTICE IS PROHIBITED AND DECLARED TO
BE UNLAWFUL."  SECTION 3(1) MAKES IT UNLAWFUL FOR COMMON CARRIERS TO
GIVE "ANY UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY
PARTICULAR PERSON,  ...  LOCALITY,  ...  REGION, DISTRICT, TERRITORY,
OR ANY PARTICULAR DESCRIPTION OF TRAFFIC, IN ANY RESPECT WHATSOEVER; OR
TO SUBJECT ANY PARTICULAR PERSON,  ... LOCALITY,  ...  REGION,
DISTRICT, TERRITORY, OR ANY PARTICULAR DESCRIPTION OF TRAFFIC TO ANY
UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT
WHATSOEVER  ...  "  SECTION 15(1) AUTHORIZES AND EMPOWERS THE
COMMISSION, UPON FINDING THAT A PRACTICE OF CARRIERS IS "UNJUST OR
UNREASONABLE OR UNJUSTLY DISCRIMINATORY," TO MAKE AN APPROPRIATE CEASE
AND-DESIST ORDER. 

WE ARE OF OPINION THAT THESE STATUTORY PROVISIONS FURNISH AMPLE
AUTHORITY FOR THE ORDER MADE HERE BY THE COMMISSION.  THE FINDINGS
SUFFICIENTLY SUPPORT THE COMMISSION IN UNDERTAKING TO REMOVE A
DISCRIMINATION AS BETWEEN GRAIN SHIPPERS AND MARKETS.  AS WAS NOTED
ONLY THE OTHER DAY IN BOARD OF TRADE V. UNITED STATES, 314 U.S. 534,
548, INVOLVING ANOTHER PHASE OF THE ELABORATE AND DELICATELY BALANCED
GRAIN RATE STRUCTURE, "WE CERTAINLY HAVE NEITHER TECHNICAL COMPETENCE
NOR LEGAL AUTHORITY TO PRONOUNCE UPON THE WISDOM OF THE COURSE TAKEN BY
THE COMMISSION."  SINCE THE ACTION OF THE COMMISSION WAS BASED UPON
RELEVANT TRANSPORTATION CONSIDERATIONS AND THE CONSTITUTIONAL
CONTENTIONS ARE PLAINLY WITHOUT MERIT, THE ORDER WILL NOT BE SET
ASIDE.  LOS ANGELES SWITCHING CASE, 234 U.S. 294; BOARD OF TRADE V.
UNITED STATES, SUPRA.  AFFIRMED. 
..END :









PEYTON V. RY. EXPRESS AGENCY, 316 U.S. 350 


NO. 903.  SUBMITTED MAY 1, 1942.  - DECIDED MAY 25, 1942.  - 124 F.2D
430, REVERSED. 


1.  A SUIT AGAINST A SINGLE INTERSTATE CARRIER TO RECOVER DAMAGES
RESULTING FROM A NEGLIGENT FAILURE TO DELIVER A PACKAGE SHIPPED
INTERSTATE BY EXPRESS IS A SUIT ARISING UNDER A LAW REGULATING
COMMERCE, VIZ., UNDER THE CARMACK AMENDMENT, AS AMENDED, - OF WHICH THE
DISTRICT COURT HAS JURISDICTION IRRESPECTIVE OF THE AMOUNT INVOLVED. 
JUD.  CODE SEC. 24(8).  P. 352. 

2.  WHETHER A SUIT ARISES UNDER A LAW OF THE UNITED STATES MUST
APPEAR FROM THE PLAINTIFF'S PLEADING, NOT THE DEFENSES WHICH MAY BE
INTERPOSED TO, OR BE ANTICIPATED BY IT.  A PLEADING THAT ADEQUATELY
DISCLOSES A PRESENT CONTROVERSY DEPENDENT FOR ITS OUTCOME UPON THE
CONSTRUCTION OF A FEDERAL STATUTE SATISFIES THIS REQUIREMENT.  P. 353. 

PEYTON V. RAILWAY EXPRESS AGENCY, INC. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 315 U.S. 793, TO REVIEW A JUDGMENT SUSTAINING A DISMISSAL
BY THE DISTRICT COURT FOR WANT OF JURISDICTION OF AN ACTION AGAINST THE
EXPRESS COMPANY FOR NON-DELIVERY. 

PER CURIAM. 

PETITIONER BROUGHT THIS SUIT IN THE DISTRICT COURT FOR THE WESTERN
DISTRICT OF TEXAS, ALLEGING THAT RESPONDENT, KNOWN TO BE AN INTERSTATE
CARRIER, HAD NEGLIGENTLY FAILED TO DELIVER TO THE ADDRESSEE IN
CALIFORNIA A PACKAGE SHIPPED FROM WACO, TEXAS, AND CLAIMING DAMAGES IN
THE SUM OF $750,000.  THE TRIAL COURT ORDERED PETITIONER TO ATTACH TO
HIS COMPLAINT A COPY OF THE EXPRESS RECEIPT WHICH HE RECEIVED UPON
DELIVERING THE PACKAGE TO RESPONDENT.  THIS RECEIPT CONTAINED A $50
VALUATION.  THEREUPON THE COURT GRANTED RESPONDENT'S MOTION TO DISMISS
THE COMPLAINT ON THE GROUND THAT THE AMOUNT IN CONTROVERSY WAS LESS
THAN THE $3,000 NECESSARY TO SUSTAIN JURISDICTION UNDER 28 U.S.C. SEC.
41(1), JUD.  CODE SEC. 24(1).  THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT AFFIRMED.  WE GRANTED CERTIORARI TO INQUIRE WHETHER THE SUIT
COULD BE MAINTAINED UNDER 28 U.S.C. SEC. 41(8), JUD.  CODE SEC. 24(8),
GRANTING THE DISTRICT COURTS JURISDICTION "OF ALL SUITS AND PROCEEDINGS
ARISING UNDER ANY LAW REGULATING COMMERCE," IRRESPECTIVE OF THE AMOUNT
INVOLVED. 

THE PERTINENT ACT OF CONGRESS IS 49 U.S.C. SEC. 20(11), ORIGINALLY
THE CARMACK AMENDMENT OF 1906, 34 STAT. 593, SINCE AMENDED SEVERAL
TIMES TO ITS PRESENT FORM.  THE SECTION REQUIRES AN INTERSTATE COMMON
CARRIER RECEIVING PROPERTY FOR SHIPMENT TO ISSUE A RECEIPT OR BILL OF
LADING.  THE CARRIER IS MADE LIABLE TO THE HOLDER "FOR ANY LOSS,
DAMAGE, OR INJURY TO SUCH PROPERTY CAUSED BY IT" OR CONNECTING
CARRIERS.  IF THE INJURY DOES NOT OCCUR ON THE INITIAL CARRIER'S LINE,
BUT IT RESPONDS IN DAMAGES, IT IS ENTITLED TO RECOVER OVER FROM THE
RESPONSIBLE CARRIER.  FURTHER, THE INITIAL CARRIER IS MADE LIABLE TO
THE SHIPPER FOR FULL DAMAGES SUSTAINED, NOTWITHSTANDING ANY LIMITATION
OF LIABILITY IN THE RECEIPT OR BILL OF LADING, WITH THE EXCEPTION,
IMPORTANT HERE, THAT WHERE A CARRIER BY AUTHORITY OR DIRECTION OF THE
INTERSTATE COMMERCE COMMISSION MAINTAINS RATES DEPENDENT UPON THE VALUE
OF THE PROPERTY DECLARED IN WRITING BY THE SHIPPER, SUCH DECLARATION
ALSO LIMITS LIABILITY OF THE CARRIER FOR LOSS OR DAMAGE TO AN AMOUNT
NOT IN EXCESS OF THE DECLARED VALUE. 

FOLLOWING THE CARMACK AMENDMENT, THIS COURT IN SEVERAL CASES UPHELD
THE POWER OF THE RECEIVING CARRIER TO LIMIT ITS LIABILITY TO AN AGREED
VALUATION, MADE TO OBTAIN THE LOWER OF TWO OR MORE RATES.  SEE ADAMS
EXPRESS CO. V. CRONINGER, 226 U.S. 491; MISSOURI, K. & T. RY. CO. V.
HARRIMAN, 227 U.S. 657; PIERCE CO. V. WELLS, FARGO & CO., 236 U.S.
278.  THE SO-CALLED FIRST CUMMINS AMENDMENT OF MARCH 4, 1915, 38 STAT.
1196, PROHIBITED IN GENERAL ANY SUCH LIMITATION OF LIABILITY.  BY THE
SECOND CUMMINS AMENDMENT OF AUGUST 9, 1916, 39 STAT. 441, CONGRESS
ADOPTED THE PRESENT PROVISIONS AUTHORIZING LIMITATION OF LIABILITY IN
THE MANNER ALREADY NOTED, AND SUBSTANTIALLY RESTORED THE RULE OF ADAMS
EXPRESS CO. V. CRONINGER, SUPRA. 

RESPONDENT, CONFESSING ERROR, ASSERTS THAT UNDER SEC. 20(11) AS IT
NOW STANDS, A SUIT BROUGHT AGAINST A SINGLE INTERSTATE CARRIER FOR ITS
NEGLIGENT NON-DELIVERY, IS ONE NOT MERELY TO ENFORCE A COMMON LAW
LIABILITY LIMITED BY AN ACT OF CONGRESS; BUT THAT PETITIONER'S CAUSE OF
ACTION HAS ITS ORIGIN IN AND IS CONTROLLED BY SUCH ACT, AND SO "ARISES
UNDER" IT.  ANY DOUBTS AS TO THE CORRECTNESS OF THIS POSITION N1 ARE
RESOLVED BY THE ACT OF JANUARY 20, 1914, C. 11, 38 STAT. 278, 28 U.S.C.
SEC. 71, REGULATING REMOVAL TO THE FEDERAL COURTS OF SUITS BROUGHT
UNDER THE CARMACK AMENDMENT IN THE STATE COURTS. 

AFTER THE CARMACK AMENDMENT A CONFLICT OF DECISIONS HAD DEVELOPED IN
THE LOWER FEDERAL COURTS ON THE QUESTION WHETHER SUITS FOR DAMAGES
BROUGHT AGAINST INTERSTATE CARRIERS UNDER THE AMENDMENT WERE SUITS
"ARISING UNDER" AN ACT REGULATING COMMERCE, SO THAT THEIR REMOVAL FROM
STATE TO FEDERAL DISTRICT COURTS WOULD BE PERMITTED.  MCGOON V.
NORTHERN PACIFIC RY. CO., 204 F. 998; STORM LAKE TUB & TANK FACTORY V.
MINNEAPOLIS & ST. L.R. CO., 209 F. 895; ADAMS V. CHICAGO G.W. RY. CO.,
210 F. 362.  THE DECISION IN THE MCGOON CASE, SUSTAINING REMOVAL
JURISDICTION IRRESPECTIVE OF THE AMOUNT IN CONTROVERSY, WAS FOLLOWED BY
THE REMOVAL OF MANY SMALL SUITS AGAINST CARRIERS TO THE FEDERAL
DISTRICT COURTS.  CONGRESS ENDED THIS PRACTICE BY THE ACT OF JANUARY
20, 1914, WHICH FORBADE REMOVAL OF SUITS UNDER THE CARMACK AMENDMENT
INVOLVING LESS THAN $3,000. 

THE REPORT OF THE HOUSE JUDICIARY COMMITTEE ON H.R. 9994, 63D CONG.,
2D SESS. (WHICH WAS THE SAME IN SUBSTANCE AS S. 3484, WHICH BECAME THE
1914 LAW), EXPRESSLY RECOGNIZED THE EFFECT AND AUTHORITY OF THE
DECISION IN THE MCGOON CASE.  IN PROHIBITING REMOVALS WHERE LESS THAN
$3,000 IS IN CONTROVERSY, INSTEAD OF IMPOSING THE $3,000 LIMITATION
DIRECTLY ON ALL SUITS BROUGHT IN THE FEDERAL COURTS UNDER THE CARMACK
AMENDMENT, CONGRESS RECOGNIZED THAT SUCH SUITS ARISE UNDER A LAW
REGULATING COMMERCE WITHIN THE MEANING OF 28 U.S.C. SEC. 41(8), AND
SANCTIONED THE EXERCISE OF ORIGINAL JURISDICTION BY THE DISTRICT COURTS
IN SUCH CASES.  SEE H. REP. NO. 120, 63D CONG., 2D SESS.; ALSO 51 CONG.
REC. 1327, 1544-1548. 

WHETHER A SUIT ARISES UNDER A LAW OF THE UNITED STATES MUST APPEAR
FROM THE PLAINTIFF'S PLEADING, NOT THE DEFENSES WHICH MAY BE INTERPOSED
TO, OR BE ANTICIPATED BY IT.  PETITIONER'S PLEADING, WHICH WE HAVE
SUMMARIZED, SATISFIES THIS REQUIREMENT, SINCE IT ADEQUATELY DISCLOSES A
PRESENT CONTROVERSY DEPENDENT FOR ITS OUTCOME UPON THE CONSTRUCTION OF
A FEDERAL STATUTE.  SEE TENNESSEE V. UNION & PLANTERS' BANK, 152 U.S.
454; LOUISVILLE & NASHVILLE RY. CO. V. MOTTLEY, 211 U.S. 149; THE FAIR
V. KOHLER DIE & SPECIALTY CO., 228 U.S. 22, 25; TAYLOR V. ANDERSON, 234
U.S. 74; GULLY V. FIRST NATIONAL BANK, 299 U.S. 109, 113.  REVERSED. 

FN1  COMPARE CINCINNATI, N.O. & T.P. RY. CO. V. RANKIN, 241 U.S. 319,
326; CHICAGO & E.I.R. CO. V. COLLINS CO., 249 U.S. 186, 191, WITH ADAMS
EXPRESS CO. V. CRONINGER, 226 U.S. 491, 505; MISSOURI, K. & T. RY. CO.
V. HARRIMAN, 227 U.S. 657, 672; SOUTHERN RY. CO. V. PRESCOTT, 240 U.S.
632, 639-40. 
..END :














STEWART V. UNITED STATES, 316 U.S. 354 


NO. 848.  ARGUED APRIL 27, 28, 1942.  - DECIDED MAY 25, 1942.  - 121
F.2D 705, REVERSED.  - 29 F.SUPP.  59, AFFIRMED. 


1.  THE FINDINGS IN THIS CASE, SUPPORTED BY SUBSTANTIAL EVIDENCE,
ESTABLISH THAT THE MEXICAN GRANT TO CASTRO, AS CONFIRMED BY THE BOARD
OF LAND COMMISSIONERS, AND CONVEYING MARE ISLAND, IN SAN PABLO BAY,
CALIFORNIA, DOES NOT INCLUDE THE LARGE AREA OF TULE MARSH CLAIMED BY
THE PETITIONERS IN THIS CASE.  P. 358. 

2.  UNDER MEXICAN LAW THE OWNERSHIP OF LAND BORDERING ON NAVIGABLE
WATER EXTENDS TO THE LINE OF THE HIGHEST HIGH TIDE.  P. 359. 

3.  THE DECREE OF THE BOARD OF LAND COMMISSIONERS CONFIRMING THE
GRANT TO CASTRO AND FIXING THE BOUNDARY IS TO BE INTERPRETED ACCORDING
TO THE COMMON LAW IN FORCE IN CALIFORNIA AT THE TIME IT WAS ENTERED. 
UNDER THAT LAW, THE BOUNDARY WOULD BE THE LINE OF ORDINARY HIGH WATER
MARK.  P. 359. 

4.  WHERE A DECREE CONFIRMING A MEXICAN GRANT DESCRIBED THE LAND
CONFIRMED AS "A PLACE  ... CALLED  ...  MARE ISLAND  ...  ," ADDING
THAT BEING AN ISLAND IT WAS BOUNDED BY THE WATER'S EDGE, EVIDENCE OF
WHAT WAS COMMONLY KNOWN AS MARE ISLAND IS ADMISSIBLE, NOT TO ATTACK THE
DECREE BUT TO INTERPRET AND APPLY IT IN IDENTIFYING THE BOUNDARIES
INTENDED.  P. 362. 

STEWART ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 315 U.S. 791, TO REVIEW A DECREE REVERSING A DECREE OF
THE DISTRICT COURT WHICH DISMISSED A BILL BY THE UNITED STATES SEEKING
TO QUIET TITLE TO AN AREA OF MARSH LAND LYING IN THE VICINITY OF THE
MARE ISLAND NAVY YARD. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BY THE UNITED STATES TO QUIET ITS TITLE TO A LARGE
AREA OF TULE MARSH LANDS LYING NORTHWEST OF THE MARE ISLAND NAVY YARD
IN SAN PABLO BAY IN CALIFORNIA.  UNITED STATES V. O'DONNELL, 303 U.S.
501, WAS A SIMILAR SUIT TO QUIET THE GOVERNMENT'S TITLE TO MARSH LANDS
LYING BETWEEN THE HIGH LAND ON WHICH THE NAVY YARD IS LOCATED AND THE
LANDS IN CONTROVERSY, WHICH TERMINATED FAVORABLY TO THE GOVERNMENT.  IN
BOTH CASES, THE GOVERNMENT DERAIGNED TITLE THROUGH A GRANT BY THE
MEXICAN GOVERNOR OF CALIFORNIA TO ONE CASTRO, AND CERTAIN MESNE
CONVEYANCES BY CASTRO AND HIS GRANTEES.  IN BOTH CASES, THE DEFENDANTS
CLAIMED TITLE UNDER THE STATE OF CALIFORNIA, ON THE THEORY THAT THE
STATE ACQUIRED THE LANDS UNDER THE SWAMP LANDS ACT OF SEPTEMBER 28,
1850.  FN1 THE O'DONNELL CASE INVOLVED THE VALIDITY OF THE GRANT TO
CASTRO, THE VALIDITY OF THE DECREE OF THE BOARD OF LAND COMMISSIONERS
CONFIRMING THAT GRANT, THE QUESTION OF PRIORITY OF RIGHT AS BETWEEN THE
UNITED STATES AS PURCHASER OF THE LAND GRANTED TO CASTRO AND THE STATE
OF CALIFORNIA AND ITS GRANTEES UNDER THE SWAMP LANDS ACT.  THE DECISION
IN THAT CASE SETTLED THESE QUESTIONS IN FAVOR OF THE GOVERNMENT. 

IN THE O'DONNELL CASE, IT WAS CONTENDED THAT THE LANDS THERE IN
CONTROVERSY WERE NOT EMBRACED WITHIN THE GRANT TO CASTRO.  THE DISTRICT
COURT FOUND AGAINST THE CONTENTION AND THE CIRCUIT COURT OF APPEALS
APPROVED THE FINDING.  WE REFUSED TO REVIEW THE CONCURRENT FINDINGS OF
THE LOWER COURTS. 

IN THE PRESENT CASE, THE PETITIONERS DO NOT CONTEST THE RULINGS IN
THE O'DONNELL CASE.  THEIR DEFENCES ARE THAT THEIR LANDS, WHICH THEY
HOLD UNDER PATENTS ISSUED FOR SWAMP AND OVERFLOWED LANDS, UNDER THE
SWAMP LANDS ACT, WERE NEVER PART OF THE LAND GRANTED TO CASTRO BY THE
MEXICAN GOVERNOR; AND FURTHER THAT, IF THEY WERE, THE DECISION IN SAN
FRANCISCO SAVINGS UNION V. IRWIN, 28 F. 708, AFFIRMED 136 U.S. 578,
CONSTITUTES A RULING AS TO THEIR TITLE WHICH OUGHT NOW TO BE FOLLOWED. 
IN ADDITION, THEY CLAIM THAT THE ACTION OF THE UNITED STATES IS BARRED
BY THE ACT OF MARCH 3, 1891,  FN2  WHICH PROHIBITS SUIT BY THE UNITED
STATES TO ANNUL ANY PATENT AFTER SIX YEARS FROM THE DATE OF ISSUE. 
THEY ALSO CONTEND THAT LACHES, ESTOPPEL, AND FAILURE TO UNDERTAKE TO DO
EQUITY AS A CONDITION OF OBTAINING THE DESIRED RELIEF REQUIRE A DECREE
DISMISSING THE BILL. 

THE CASE WAS TRIED BEFORE THE SAME DISTRICT JUDGE WHO PRESIDED AT THE
TRIAL OF THE O'DONNELL CASE.  UPON THE BASIS OF THE PLEADINGS AND
PROOFS, HE MADE, INTER ALIA, THE FOLLOWING FINDINGS OF FACT BEARING
UPON THE DEFENCE THAT THE LANDS IN CONTROVERSY WERE NOT INCLUDED IN THE
GRANT TO CASTRO OR THE CONFIRMATION THEREOF, AND HENCE NEVER PASSED TO
THE UNITED STATES AS ULTIMATE TRANSFEREE OF CASTRO'S TITLE: 

THAT NONE OF THE LANDS INVOLVED WAS EVER A PART OF MARE ISLAND. 

THAT NONE OF THESE LANDS WAS, EITHER AT THE TIME OF THE GRANT TO
CASTRO OR AT THE TIME OF THE PROCEEDINGS FOR CONFIRMATION OF THE GRANT,
A PART OF THE LANDS KNOWN AS, OR REFERRED TO AS, OR BY THE NAME OF,
MARE ISLAND. 

THAT NONE OF THE LANDS WAS EMBRACED IN OR COVERED BY THE GRANT OF
MARE ISLAND TO CASTRO. 

THAT NONE OF THE LANDS WAS EVER OCCUPIED BY, OR IN POSSESSION OF,
CASTRO. 

THAT NONE OF THE LANDS WAS CLAIMED AS A PART OF, OR TO BE A PART OF,
MARE ISLAND. 

THAT NONE OF THE LANDS WAS COVERED BY, OR EMBRACED WITHIN, THE
CONFIRMATION PROCEEDINGS OR THE ORDER OF CONFIRMATION OF THE BOARD OR
THE DECREE OF THE DISTRICT COURT CONFIRMING THE ORDER OF CONFIRMATION
OF THE BOARD. 

THAT NONE OF THE LANDS WAS PURCHASED OR ACQUIRED BY THE UNITED STATES
AS PART OF ITS PURCHASE OF MARE ISLAND. 

THE JUDGE ALSO FURTHER MADE FINDINGS THAT THE PETITIONERS' TITLE WAS
DERIVED FROM THE UNITED STATES THROUGH THE STATE OF CALIFORNIA UNDER
THE SWAMP LANDS ACT.  HE CONCLUDED THAT THE ACTION WAS BARRED BY THE
STATUTE OF LIMITATIONS AND THAT THE UNITED STATES WAS NOT THE OWNER OF
THE LANDS IN SUIT.  FN3 

THE CIRCUIT COURT OF APPEALS REVERSED THE DECREE BY A VOTE OF 2 TO
1.  FN4  THE DISSENTING JUDGE SAID:  "THE DISTRICT COURT FOUND, IN
EFFECT, THAT THE 'PLACE' WHICH AT THE TIME OF THE GRANT TO CASTRO AND
AT THE TIME OF THE CONFIRMATION TO BISSELL AND ASPINWALL WAS CALLED
ISLA DE LA YEGUA OR MARE ISLAND, DID NOT INCLUDE ANY OF THE LAND HERE
IN CONTROVERSY.  THE FINDING IS AMPLY SUPPORTED BY EVIDENCE." 

THE MAJORITY OF THE COURT DID NOT OVERRULE THE FINDINGS OF THE
DISTRICT JUDGE ABOVE OUTLINED.  AFTER MAKING A REFERENCE TO THE
EVIDENCE, THEY SAID:  "BUT WHATEVER MAY BE THE FACT THERE IS NO
OCCASION TO INQUIRE INTO THE EXTENT OF CASTRO'S OCCUPANCY, OR INTO THE
MATTER OF EARLY REPUTE."  THEY HELD THAT, WHATEVER THE EXTENT OF THE
MEXICAN GRANT TO CASTRO, THE DECREE OF THE BOARD OF LAND COMMISSIONERS,
MADE PURSUANT TO THE ACT OF MARCH 3, 1851,  FN5  ESTABLISHED A DEFINITE
BOUNDARY - THE LINE OF ORDINARY HIGH WATER MARK - WHICH WAS
CONTROLLING.  IT IS CONCEDED THAT A PORTION OF THE MARSH LANDS EMBRACED
IN SURVEY NO. 34, WHICH ARE THE LANDS INVOLVED IN THE O'DONNELL CASE,
IS, AND HAS BEEN, ABOVE ORDINARY HIGH WATER MARK.  THE COURT HELD THAT
THERE WAS SOME LAND ABOVE THAT MARK IN THE NARROW NECK OF LAND CONVEYED
BY SURVEY NO. 34 AND CONNECTING THE HIGH LAND ON WHICH THE NAVY YARD IS
CONSTRUCTED WITH THE LARGE TRACT OF ABOUT 7500 ACRES COVERED BY SURVEY
NO. 569, WHICH CONSTITUTES THE LAND IN THIS SUIT.  CONSTRUING THE
DECREE OF THE COMMISSIONERS IN ACCORDANCE WITH THE COMMON LAW OF
CALIFORNIA IN FORCE AT THE TIME OF THE CONFIRMATION OF THE CASTRO
GRANT, THE COURT HELD THAT THE TRACT CONFIRMED TO CASTRO'S GRANTEES
COMPRISED NOT ONLY THE HIGH LAND ON WHICH THE NAVY YARD STANDS BUT THE
NARROW STRIP TO THE NORTHWESTWARD EMBRACED IN SURVEY NO. 34, AND THE
LARGE TRACT OF TULE MARSH LYING STILL FARTHER TO THE NORTHWESTWARD
EMBRACED IN SURVEY NO. 569.  ON ACCOUNT OF THE IMPORTANCE OF THE
QUESTIONS INVOLVED, WE GRANTED CERTIORARI. 

WE ARE OF OPINION THAT, IN THE LIGHT OF THE DISTRICT COURT'S
FINDINGS, WHICH ARE UNDISTRUBED, THE CIRCUIT COURT OF APPEALS ERRED IN
REVERSING THE DISTRICT COURT'S JUDGMENT.  IT IS EVIDENT THAT THE
CIRCUIT COURT OF APPEALS ACCEPTED, OR AT LEAST DID NOT OVERRULE, THE
FINDINGS OF THE DISTRICT JUDGE.  IF, AS WE THINK, THESE FINDINGS WERE
SUPPORTED BY SUBSTANTIAL EVIDENCE, THERE IS NO PRINCIPLE OF LAW WHICH
REQUIRES A DECISION THAT THE DECREE OF CONFIRMATION EXTENDED THE TRACT
ACTUALLY GRANTED TO CASTRO SO AS TO EMBRACE THE MARSH LANDS, TITLE TO
WHICH IS IN CONTROVERSY. 

THE RECORD BEFORE THE COMMISSIONERS SHOWS THAT, ON OCTOBER 30, 1840,
CASTRO PETITIONED THAT HE BE GRANTED AN ISLAND CALLED "MARE ISLAND,"
THAT THE GOVERNOR AD INTERIM GRANTED HIS PETITION ON OCTOBER 31, 1840,
AND THAT ON MAY 2, 1841, THE GOVERNOR OF THE CALIFORNIAS, ONE ALVARADO,
CONFIRMED CASTRO'S OWNERSHIP IN FEE OF THE SAME ISLAND "IN ALL ITS
EXTENT," WHICH HE DESIGNATED AS "THE ISLAND NAMED LA YEGUA."  THERE WAS
NO EVIDENCE BEFORE THE COMMISSIONERS, AND NONE IN THE TRIAL OF THIS
CASE, TO THE EFFECT THAT CASTRO OCCUPIED ANY PORTION OF THE TULE MARSH
IN CONTROVERSY.  THE TESTIMONY BEFORE THE COMMISSIONERS WAS DEVOTED
ALMOST ENTIRELY TO THE QUESTION OF THE AUTHENTICITY AND GOOD FAITH OF
THE GRANT TO CASTRO.  THE ONLY EVIDENCE WITH RESPECT TO THE SIZE OR
EXTENT OF THE ISLAND WAS THAT GIVEN BY A WITNESS, VALLEJO, WHO RESIDED
NEAR IT.  HE TESTIFIED THAT THE ISLAND WAS TWO AND ONE-HALF MILES IN
LENGTH AND CONTAINED ABOUT HALF A LEAGUE OF LAND.  THIS DESCRIPTION
DOES NOT INCLUDE THE MARSH LAND INVOLVED IN THE PRESENT CASE BUT COVERS
ONLY THE HIGH LAND WHERE THE NAVY YARD IS LOCATED. 

THE PETITION OF BISSELL AND ASPINWALL FOR A CONFIRMATION TO THEM OF
TITLE TO THE LANDS GRANTED TO CASTRO BY THE COMMISSIONERS WAS FILED
AUGUST 31, 1852.  IT STATED THAT THE SUBJECT OF THE GRANT WAS "THE
ISLAND CALLED 'ISLA DE LA YEGUA'" AND ASKED THAT THE COMMISSIONERS
CONFIRM TO THEM THE SAID "TRACT OF LAND."  THE DECREE OF THE
COMMISSIONERS, AFTER STATING THAT THE CLAIM WAS VALID AND THE
APPLICATION FOR CONFIRMATION SHOULD BE ALLOWED, CONTINUED:  "THE PLACE
OF WHICH CONFIRMATION IS HEREBY GIVEN IS SITUATE IN THE BAY OF SAN
FRANCISCO AND IS CALLED 'ISLA DE LA YEGUA' OR MARE ISLAND AND BEING AN
ISLAND IS BOUNDED BY THE WATER'S EDGE." 

IT IS UNDISPUTED THAT THE ORIGINAL GRANT TO CASTRO WAS GOVERNED BY
THE MEXICAN LAW AND THAT, UNDER THAT LAW, THE TITLE OF AN OWNER OF LAND
BORDERING ON NAVIGABLE WATERS RAN TO THE LINE OF THE HIGHEST HIGH
TIDE.  THE RECORD CONTAINS EVIDENCE INDICATING THAT, AT SUCH HIGHEST
TIDE, THE NECK OF LAND TO THE NORTHWESTWARD OF THE HIGH LAND ON WHICH
THE NAVY YARD IS LOCATED WAS COVERED, AT LEAST AT CERTAIN POINTS, BY
WATER.  THIS FACT COULD NOT ALTER BOUNDARIES DEFINITELY FIXED BY THE
COMMISSION'S DECREE, WHICH IS TO BE INTERPRETED ACCORDING TO THE COMMON
LAW IN FORCE IN CALIFORNIA AT THE TIME IT WAS ENTERED.  UNDER THE
COMMON LAW, THE BOUNDARY WOULD BE THE LINE OF ORDINARY HIGH WATER.  BUT
THE BOUNDARY OF THE MEXICAN GRANT IS OF SOME SIGNIFICANCE IN
DETERMINING WHAT THE MEXICAN GOVERNOR INTENDED TO, AND DID IN FACT,
GRANT TO CASTRO, ESPECIALLY AS BOTH GRANT AND CONFIRMATION REFERRED TO
THE TRACT AS WHAT IS NAMED OR CALLED MARE ISLAND. 

IT IS TO BE OBSERVED THAT THE DECREE OF CONFIRMATION REFERS NOT TO A
TRACT OF LAND BUT TO A "PLACE" AND TO THE PLACE WHICH "IS CALLED" MARE
ISLAND. 

AT THE TIME THE DECREE OF CONFIRMATION WAS ENTERED, SEVERAL EARLY
MAPS OF THE AREA EXISTED WHICH, ALTHOUGH THEY DID NOT DESIGNATE MARE
ISLAND BY ANY NAME, SHOWED THE HIGH LAND AS ENTIRELY SURROUNDED BY
WATER.  THEY INDICATE A CHANNEL ACROSS THE LOW NECK OF MARSH LAND TO
THE WESTWARD OF THE HIGH PROMONTORY ON WHICH THE NAVY YARD IS
CONSTRUCTED. 

COMING TO ABOUT THE DATE OF THE GRANT AND CONFIRMATION, WE FIND
SEVERAL SIGNIFICANT MAPS.  ONE OF THESE, MADE BY AN ARMY LIEUTENANT IN
1848, SHOWS AN ACTUAL BREAK AT THE NORTHERLY END OF THE HIGH LAND AND
INDICATES THAT, AT THIS POINT, WATER COVERED THE LAND, AT LEAST AT HIGH
TIDE.  THE ISLAND THUS DELIMITED IS MARKED ON THE MAP "MARE ISLAND" AND
THE LOW TULE MARSH TO THE NORTHWESTWARD IS NOT COMPREHENDED IN THE AREA
SO DESIGNATED.  ANOTHER, MADE BY ONE ELLIS IN 1852, MARKS THE HIGH LAND
"MARES ISLAND."  ALL THE AREA TO THE NORTHWEST OF THE HIGH LAND,
INCLUDING THE LAND IN CONTROVERSY, IS SHOWN AS WATER.  A THIRD, MADE BY
ONE RINGGOLD, A COMMANDER OF THE NAVY IN 1850, SHOWS THE SWAMP LAND TO
THE NORTHWEST OF WHAT IS NOW THE NAVY YARD TRACT BUT DESIGNATES ONLY
THE LATTER AS MARE ISLAND. 

SEVEN UNITED STATES COAST AND GEODETIC SURVEY CHARTS, DATED
RESPECTIVELY 1851, 1851, 1856, 1859, 1861, 1863, AND 1915, DESIGNATE
ONLY THE HIGH LAND BY THE NAME OF "MARE ISLAND."  THE UNITED STATES
GEOLOGICAL SURVEY PREPARED MAPS OF THE NAPA QUADRANGLE AND THE MARE
ISLAND QUADRANGLE IN 1902 AND 1916.  IN EACH, THE HIGH LAND IS MARKED
MARE ISLAND AND THE LAND IN CONTROVERSY IS MARKED "ISLAND NO. 1."  THE
STATE GEOLOGICAL SURVEY OF CALIFORNIA PREPARED A MAP IN 1873 WHICH
APPLIES THE NAME "MARE ISLAND" TO THE HIGH LAND. 

SAN FRANCISCO SAVINGS UNION V. IRWIN, SUPRA, WAS TRIED ABOUT 1885. 
THE COAST AND GEODETIC SURVEY PREPARED A MAP FOR USE IN THAT CASE WHICH
SHOWS ONLY THE HIGH LAND AS CONSTITUTING MARE ISLAND.  IN THE TRIAL OF
THE INSTANT CASE, IT WAS TESTIFIED THAT THE LAND IN CONTROVERSY HAS
BEEN FOR SOME YEARS KNOWN AS "CROSS ISLAND." 

SHORTLY BEFORE THE GOVERNMENT PURCHASED MARE ISLAND, AND AS A BASIS OF
THE PURCHASE, A BOARD OF OFFICERS KNOWN AS THE SLOAT BOARD REPORTED ON
THE ISLAND AS A SITE FOR A NAVY YARD.  THIS REPORT WAS MADE BEFORE THE
CONFIRMATION PROCEEDINGS WERE CONCLUDED.  ONE OF THE PLANS ATTACHED TO
THE REPORT PURPORTS TO BE A PLAN OF MARE ISLAND, SHOWING ITS
TOPOGRAPHY.  THE PLAN COVERS ONLY THE HIGH LAND.  THE REPORT STATES
THAT MARE ISLAND IS "BOUNDED ON THE EAST BY MARE ISLAND STRAITS WHICH
SEPARATES IT FROM THE CITY OF VALLEJO ON THE WEST BY THE BAY OF SAN
PABLO, AND ON THE NORTH BY A LARGE TRACT OF TULE LAND, EXTENDING
SEVERAL MILES IN THE DIRECTION OF SONOMA."  THE REPORT SPEAKS OF THE
"NORTH END" OF THE ISLAND AS MORE UNIFORM THAN THE SOUTHERLY END, SO
THAT IT MAY EASILY BE REDUCED TO A CONVENIENT GRADE.  THESE REMARKS
CANNOT WELL APPLY TO THE TULE MARSH IN QUESTION.  THE REPORT STATES
THAT THE ISLAND CONTAINS, "INCLUDING THE TULE OPPOSITE VALLEJO, ABOUT
900 ACRES."  THERE IS A FURTHER STATEMENT THAT THE WHOLE LENGTH OF THE
ISLAND IS ABOUT TWO MILES.  THIS DESCRIBES ONLY THE HIGH LAND, AS THE
LENGTH WOULD BE ABOUT TEN MILES IF THE TULE MARSH IN CONTROVERSY WERE
INCLUDED. 

THE FOREGOING FACTS SEEM TO US TO FURNISH ADEQUATE SUPPORT FOR A
FINDING THAT WHAT WAS GRANTED TO CASTRO WAS THE HIGH LAND KNOWN AT THE
TIME AS MARE ISLAND, AND NOT THE GREAT EXTENT OF TULE MARSH LYING TO
THE NORTHWESTWARD OF THE FORMER WHICH WAS APPARENTLY NOT OCCUPIED OR
CLAIMED BY CASTRO OR COMMONLY UNDERSTOOD TO BE A PART OF THE LAND
CALLED MARE ISLAND.  ALL THAT THE DECREE PURPORTED TO CONFIRM WAS THE
TITLE TO A "PLACE  ...  CALLED  ...  MARE ISLAND."  EVEN IF THE HIGH
LAND WAS CONNECTED BY A NARROW NECK WITH THE TULE MARSH TO THE
NORTHWESTWARD, THAT HIGH LAND MIGHT STILL BE CALLED AN ISLAND EITHER
BECAUSE THE NARROW NECK OF LOW MARSH LAND TO ITS WESTWARD WAS SOMETIMES
FLOODED OR BECAUSE THE NAME "ISLAND" WAS COLLOQUIALLY APPLIED TO A
PIECE OF LAND WHICH A GEOGRAPHER WOULD MORE ACCURATELY CALL A
PENINSULA.  FN6    THE COURT OF APPEALS, HOWEVER, HELD, AND THE
GOVERNMENT HERE URGES, THAT THE FACTS RECITED ARE IMMATERIAL IN VIEW OF
THE TERMS OF THE DECREE OF CONFIRMATION.  THE UNDOUBTED PRINCIPLE THAT,
WHEN SUCH A DECREE DEFINES THE BOUNDARIES OF A TRACT WITH PRECISION,
THE DECREE CANNOT BE ATTACKED ON THE GROUND THAT THE BOUNDARIES NAMED
WERE ERRONEOUS,  FN7  IS INVOKED.  BUT THE QUESTION REMAINS, WHETHER
THE PETITIONERS' CONTENTION IN THIS CASE AMOUNTS TO SUCH AN ATTACK. 
THE DESCRIPTION IN THE DECREE OF CONFIRMATION IS AT BEST BUT A VAGUE
ONE.  IT IS OF A "PLACE  ... CALLED  ...  MARE ISLAND."  IF THERE WERE
NOTHING MORE, IT WOULD BE COMPETENT TO SHOW WHAT WAS IN FACT THE PLACE
SO KNOWN OR CALLED.  THE GOVERNMENT'S CONTENTION IS, HOWEVER, THAT,
BECAUSE THE COMMISSION ADDED THAT, BEING AN ISLAND, IT WAS BOUNDED BY
THE WATER'S EDGE, THIS SUPEREROGATORY STATEMENT GIVES A FIXED AND
DEFINITE BOUNDARY WHICH OVERCOMES ANY VAGUENESS INHERENT IN THE
DESIGNATION OF THE PLACE GRANTED.  WE THINK NO SUCH STRICT RULE HAS
BEEN APPLIED IN THE INTERPRETATION OF DEEDS OR, INDEED, OF DECREES OF
CONFIRMATION OF MEXICAN GRANTS IN LIKE CIRCUMSTANCES.  ON THE CONTRARY,
COURTS HAVE REPEATEDLY RESORTED TO EVIDENCE OF WHAT WAS COMMONLY KNOWN
AND CALLED A RANCH, OR LOT, OR OTHER PLACE, IN ORDER TO CORRECT
ERRONEOUS BOUNDARIES STATED IN A DEED DESCRIPTION OR A DECREE OF
CONFIRMATION.  FN8  THUS TO EXPLAIN THE MEANING AND EXTENT OF A DECREE
IS NOT TO ATTACK IT FOR ERROR, BUT TO RECONCILE ALL OF THE DESCRIPTIVE
LANGUAGE USED TO DESIGNATE THE TRACT TITLE TO WHICH IS CONFIRMED. 

WE ARE OF OPINION THAT THE EVIDENCE IN QUESTION WAS OF PROBATIVE
VALUE; THAT ITS RECEPTION AND CONSIDERATION DID NOT RUN COUNTER TO THE
RULE THAT THE DECREE OF CONFIRMATION WAS NOT OPEN TO ATTACK BY REASON
OF ERRONEOUS DESCRIPTION OF THE LAND CONFIRMED, AND THAT THE PROOFS
FURNISHED A BASIS FOR A FINDING OF FACT THAT THE LAND IN CONTROVERSY
WAS NOT A PART OF THAT GRANTED TO CASTRO AND CONFIRMED TO HIS VENDEES. 
THIS VIEW RENDERS IT UNNECESSARY TO DISCUSS THE OTHER QUESTIONS
PRESENTED BY THE PETITIONERS.  THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS IS REVERSED AND THAT OF THE DISTRICT COURT IS AFFIRMED. 
REVERSED. 

FN1  C. 84, 9 STAT. 519, 43 U.S.C. SEC. 982. 

FN2  C. 561, SEC. 8, 26 STAT. 1095, 1099. 

FN3  29 F.SUPP.  59. 

FN4  121 F.2D 705. 

FN5  C. 41, 9 STAT. 631. 

FN6  IT IS COMMON KNOWLEDGE THAT LANDS NOT IN FACT SURROUNDED BY
WATER ARE SOMETIMES CALLED ISLANDS.  SEE, CENTURY DICTIONARY; WEBSTER'S
NEW INTERNATIONAL DICTIONARY; ENCYCLOPEDIA BRITTANICA, 14TH ED., VOL.
XII, P. 715; VOL. III, P. 381.  AND COMPARE CALIFORNIA STATE GEOLOGICAL
SURVEY MAP OF 1873, SHOWING LANDS CALLED DEER ISLAND, SIMMS ISLAND, AND
GREEN ISLAND. 

FN7  UNITED STATES V. HALLECK, 1 WALL.  439; HIGUERAS V. UNITED
STATES, 5 WALL.  827; UNITED STATES V. HANCOCK, 133 U.S. 193. 

FN8  PARKER V. KANE, 22 HOW.  1; UNITED STATES V. DE HARO, 25 FED.
CAS. 803; PIPER V. TRUE, 36 CAL. 606; HALEY V. AMESTOY, 44 CAL. 132;
WISE V. WATTS, 239 F. 207. 
..END :












WILLIAMS CO. V. SHOE MACH. CORP., 316 U.S. 364 


NO. 332.  ARGUED FEBRUARY 13, 1942.  - DECIDED MAY 25, 1942.  - 121 F.2D
273, AFFIRMED. 


1.  IN A PATENT INFRINGEMENT SUIT, CONCURRENT FINDINGS OF THE TWO
LOWER FEDERAL COURTS TO THE EFFECT THAT COMBINATIONS CLAIMED, THOUGH
INVOLVING OLD MECHANICAL CONSTRUCTIONS, COMBINE THESE IN THE MACHINE IN
A NEW WAY, SO AS TO PRODUCE A NEW RESULT, ARE FINDINGS OF FACT WHICH
WILL NOT BE DISTURBED BY THIS COURT WHERE THERE IS EVIDENCE TO SUPPORT
THEM.  P. 367. 

2.  A CLAIM IN A PATENT FOR A NEW COMBINATION OF SPECIFIED MEANS,
APPLICABLE TO A PORTION OF AN OLD MACHINE, WHICH DESCRIBES OR REFERS TO
THE OLDER MECHANISM IN ORDER TO SHOW THE APPLICATION AND OPERATION OF
THE IMPROVEMENT, IS NOT TO BE CONSTRUED AS EMBRACING THE OLD AS WELL AS
THE NEW.  P. 368. 

3.  CERTAIN CLAIMS OF A PATENT TO MCFEELY FOR IMPROVEMENTS IN
AUTOMATIC HEEL-LASTING MACHINES, SUSTAINED.  PP. 364, 370. 

WILLIAMS MANUFACTURING CO. V. UNITED SHOE MACHINERY CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH DISTRICT. 

CERTIORARI, 314 U.S. 600, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
DISTRICT COURT, 29 F.SUPP.  1015, SUSTAINING CERTAIN CLAIMS OF A
PATENT, IN A SUIT FOR INFRINGEMENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE SUIT WAS FOR THE INFRINGEMENT OF CLAIMS 6, 23, 42, 85, AND 91 OF
THE MCFEELY PATENT NO. 1,558,737 FOR IMPROVEMENTS IN AUTOMATIC HEEL
LASTING MACHINES.  THE DISTRICT COURT HELD THE CLAIMS VALID AND
INFRINGED.  FN1  THE CIRCUIT COURT OF APPEALS AFFIRMED.  FN2 

THE DEFENDANT SOUGHT CERTIORARI ON THE GROUND THAT THE CLAIMS WERE
INVALID UNDER RECENT DECISIONS OF THIS COURT BECAUSE THEY CONSTITUTED
ATTEMPTS TO REPATENT A BROAD COMBINATION OF OLD DEVICES - BED LASTERS
AND AUTOMATIC TACKERS - AND EMBODIED ONLY AGGREGATIONS OF NEW
UNPATENTABLE MECHANISMS WITH OLD MECHANICAL COMBINATIONS.  IN PRESSING
US TO GRANT THE WRIT, THE PETITIONER INSISTED THAT IT DESIRED NO
RETRIAL OF THE FACTS BUT MERELY A PROPER APPLICATION OF THE LAW TO THE
FACTS FOUND BY THE COURTS BELOW.  WE GRANTED THE WRIT. 

IN THE MANUFACTURE OF SHOES, AFTER THE UPPER, THE LINING, AND THE
COUNTER HAVE BEEN PLACED ON A WOODEN LAST, AND AN INSOLE HAS BEEN
TACKED TO THE LAST, THE PROTRUDING EDGES OF THE MATERIALS ARE FLATTENED
OVER THE INSOLE AND TACKED DOWN AT THE TOE AND SHANK OF THE SHOE.  THE
NEXT OPERATION IS "HEEL SEAT LASTING," WHICH CONSISTS OF CONFORMING THE
UPPER MATERIALS AND INSOLE SNUGLY TO THE CONTOUR OF THE HEEL OF THE
LAST AND FASTENING THEM DOWN WITH TACKS.  ORIGINALLY THIS WAS DONE BY
HAND.  LATER SO-CALLED "BED" MACHINES WERE USED WHICH EMPLOYED
HORIZONTALLY MOVING PLATES, CALLED "WIPERS," TO FLATTEN THE PROJECTING
MATERIALS OVER THE HEEL SEAT, WHERE THEY WERE TACKED BY HAND.  HEEL
LASTING ON A BED MACHINE INVOLVES THE REPEATED USE OF LEVERS AND A FOOT
TREADLE, AND THE RESULT IS NOT UNIFORM. 

MARCH 2, 1915, MCFEELY OBTAINED A PATENT FOR A MACHINE WHICH WOULD
AUTOMATICALLY PERFORM, IN ONE POWER STROKE, THE WIPING AND TACKING
NECESSARY TO COMPLETE THE PROCESS OF HEEL SEAT LASTING.  IN THIS PATENT
HE CLAIMED NUMEROUS COMBINATIONS OF MEANS TO ACCOMPLISH SPECIFIC STEPS
IN THE PROCESS, AMONGST OTHERS COMBINATIONS TO EFFECT THE CLAMPING OF
THE LAST, AND POSITIONING IT DURING THE PROCESS, AND TO OPERATE THE
WIPERS AND THE TACKERS IN PROPER RELATION TO THE LAST.  A DECLARED
PURPOSE WAS THAT THE MACHINE SHOULD BE ABLE TO LAST THE HEELS OF SHOES
OF DIFFERENT SIZES.  ONE MACHINE WAS BUILT IN ACCORDANCE WITH THE
PATENT AND USED FOR SOME TIME.  IT WAS FOUND TO WORK SATISFACTORILY ON
SHOES OF A SMALL RANGE OF SIZES, BUT NOT TO WORK ON SHOES OF A WIDE
RANGE OF SIZES AS WOULD BE REQUIRED IN THE OPERATIONS OF THE ORDINARY
FACTORY. 

OCTOBER 27, 1925, MCFEELY OBTAINED THE PATENT INVOLVED IN THIS CASE
FOR IMPROVEMENTS  FN3  OF THE LASTING MACHINE DESCRIBED IN HIS EARLIER
PATENT.  THE IMPROVEMENTS EMBODIED IN THE CLAIMS IN SUIT HAD TO DO WITH
A NEW COMBINATION OF ELEMENTS FOR CLAMPING THE LAST IN THE MACHINE, A
NEW COMBINATION OF ELEMENTS FOR THE OPERATION OF WIPERS AND TACKERS IN
FIXED RELATION TO EACH OTHER AND TO THE HEEL OF THE LAST, AND A NEW
COMBINATION OF MEANS FOR POSITIONING THE LAST VERTICALLY AND
AUTOMATICALLY ALTERING THE POSITION DURING THE OPERATION.  A MANUAL
ADJUSTMENT WAS A PART OF EACH OF THESE COMBINATIONS BY WHICH THE HEEL
CLAMPING, THE WIPING AND TACKING, AND THE VERTICAL POSITIONING
MECHANISMS COULD BE ADJUSTED IN ADVANCE FOR DIFFERENT SIZES OF SHOES. 
THE RESPONDENT IS THE ASSIGNEE OF BOTH MCFEELY PATENTS. 

THE PETITIONER PURCHASED FROM A GERMAN MAKER, AND USED, FOUR MACHINES
WHICH WERE FOUND BY THE COURTS BELOW TO BE EXACT COPIES OF THE
RESPONDENT'S COMMERCIAL MACHINES MADE UNDER THE PATENT IN SUIT.  SO
THOROUGH WAS THE IMITATION THAT EVEN MINOR FEATURES NOT COVERED BY THE
PATENT WERE COPIED.  AT THE TIME OF THE TRIAL, ALTERATIONS HAD BEEN
MADE IN THE PETITIONER'S MACHINES, BUT THE COURTS BELOW FOUND THAT
THESE WERE FOR THE PURPOSE OF AVOIDING INFRINGEMENT AND THAT THEY WERE
NOT EFFECTIVE TO THAT END. 

IF THE PETITIONER'S STATEMENTS IN SUPPORT OF THE APPLICATION FOR
CERTIORARI ARE TAKEN AT FACE VALUE, THE POINT FOR DECISION IS EXTREMELY
NARROW.  IN ARGUMENT, HOWEVER, THE PETITIONER SOUGHT TO OVERTURN THE
CONCURRENT FINDINGS BELOW AND TO HAVE US REDETERMINE THE QUESTION OF
THE NOVELTY AND USEFULNESS OF THE IMPROVEMENTS DESCRIBED IN THE
COMBINATION CLAIMS HELD VALID AND INFRINGED. 

THE COURTS BELOW HAVE CONCURRENTLY FOUND THAT NONE OF THE EARLIER
PATENTS CITED, INCLUDING THAT OF MCFEELY, EMBODIED THE COMBINATIONS OF
THE CHALLENGED CLAIMS COVERING MEANS FOR CLAMPING AND HOLDING THE LAST,
MEANS FOR THE MOVEMENT OF WIPERS AND TACKERS IN FIXED RELATION TO EACH
OTHER, AND MEANS FOR THE TIMED VERTICAL POSITIONING OF THE LAST DURING
THE POWER STROKE OF THE MACHINE, EACH COMBINATION INCLUDING MEANS FOR
MANUALLY ADJUSTING THE MECHANISM IN ADVANCE FOR DIFFERENT SIZES OF
SHOES.  THESE FINDINGS ARE TO THE EFFECT THAT THE NEW COMBINATIONS,
WHILE THEY INVOLVE OLD MECHANICAL CONSTRUCTIONS, COMBINE THESE IN A NEW
WAY SO AS TO PRODUCE AN IMPROVED RESULT.  THESE ARE FINDINGS OF FACT,
FN4 DESPITE THE PETITIONER'S APPARENT CONTENTION TO THE CONTRARY, AND
WE WILL NOT DISTURB SUCH CONCURRENT FINDINGS WHERE, AS HERE, THERE IS
EVIDENCE TO SUPPORT THEM.  FN5  THE CLAIM THAT THE COMBINATIONS ARE
MERELY OF OLD ELEMENTS, WHICH PERFORM NO NEW FUNCTION AND PRODUCE NO
NEW RESULT, MUST BE OVERRULED. 

WE COME TO THE PETITIONER'S CONTENTION THAT THE COURTS BELOW HAVE
HELD THE PATENT VALID AND INFRINGED ON THE THEORY THAT THE IMPROVEMENTS
AND ADJUSTMENTS DISCLOSED IN THE CLAIMS ENTITLE MCFEELY TO REPATENT THE
ENTIRE COMBINATION OF THE OLD DEVICES, KNOWN AS BED LASTERS AND
AUTOMATIC TACKERS.  PETITIONER ARGUES THAT THEY HAVE SO HELD ONLY
BECAUSE THE MECHANISM OF THE PATENTED MACHINE PERMITS OF ITS OPERATION
UPON A WIDER RANGE OF SIZES OF SHOES THAN THE MACHINE EARLIER PATENTED,
AND THAT IT DOES SO OPERATE MERELY BECAUSE OF THREE TRIFLING MECHANICAL
ADJUSTMENTS WHICH IT EMBODIES. 

THE CONTENTION IS NOT IN ACCORD WITH THE HOLDINGS BELOW.  IT IS TRUE
THAT BOTH COURTS FOUND THAT MANUAL ADJUSTMENTS ARE PROVIDED WHICH ARE
NOT FOUND IN THE EARLIER MCFEELY PATENT OR IN THE PRIOR ART AS APPLIED
TO THE THREE COMBINATIONS EMBODIED IN THE CLAIMS IN SUIT.  BUT THE
FINDINGS DO NOT STOP THERE.  IN RESPECT OF EACH CLAIMED COMBINATION,
BOTH COURTS HAVE FOUND THAT THEY EMBODY OTHER IMPROVEMENTS, IN ADDITION
TO MERE MANUAL PRELIMINARY ADJUSTMENTS, AND THAT EACH COMBINATION
EXHIBITS INVENTION IN THAT ITS ELEMENTS COOPERATE IN A NEW AND USEFUL
WAY TO ACCOMPLISH AN IMPROVED RESULT. 

THE PETITIONER, HOWEVER, CONTENDS THAT THE BREADTH OF THE CLAIMS IN
SUIT IS SUCH THAT, INSTEAD OF PATENTING THE COMBINATIONS CLAIMED AS
IMPROVEMENTS OVER THE PRIOR ART, AND RESTRICTING THE CLAIMS TO THE
IMPROVEMENTS, THE PATENTEE SOUGHT TO BLANKET EVERY MACHINE WHICH
COMBINES THE OLD BED LASTER WITH THE EQUALLY OLD AUTOMATIC TACKING
DEVICE.  IT IS SAID THAT OUR DECISIONS IN BASSICK MFG. CO. V.
HOLLINGSHEAD, 298 U.S. 415, AND LINCOLN ENGINEERING CO. V. STEWART
WARNER CORP., 303 U.S. 545, FORBID ANY SUCH EXTENSION OF THE PATENT
MONOPOLY. 

WE THINK, HOWEVER, THAT EACH OF THE CLAIMS IS CONFINED TO A
COMBINATION OF SPECIFIED MEANS APPLICABLE ONLY TO A RESTRICTED PORTION
AND FUNCTION OF THE WHOLE MACHINE.  IN STATING HIS CLAIMS, THE PATENTEE
SOMETIMES SAYS "A MACHINE OF THE CLASS DESCRIBED HAVING, IN
COMBINATION,  ...  " OBVIOUSLY, NO MACHINE WILL INFRINGE WHICH DOES NOT
HAVE IN COMBINATION THE MEANS SPECIFIED IN EACH OF THE CLAIMS FOR
ACCOMPLISHING THE PARTICULAR PORTION OF THE TOTAL OPERATION COVERED BY
THE CLAIM.  OTHER CLAIMS REFER TO "A LASTING MECHANISM OF THE CLASS
DESCRIBED HAVING, IN COMBINATION, ...  "  THE SAME COMMENT IS
APPLICABLE.  OTHER CLAIMS READ:  "IN A MACHINE OF THE CLASS DESCRIBED,
THE COMBINATION  ..."  SUCH PRELIMINARY STATEMENT IS COMMONLY AND
PROPERLY USED TO SPECIFY THE TYPE OF MACHINE IN WHICH THE CLAIMED
SUBSIDIARY COMBINATION OF ELEMENTS WORKS AN IMPROVEMENT OVER THE PRIOR
ART. FN6  IN DESCRIBING THE NOVEL COMBINATIONS EMBODIED IN THE CLAIMS,
IT WAS NECESSARY TO MAKE REFERENCE TO CERTAIN PORTIONS OF THE MACHINE
IN CONNECTION WITH WHICH THE NEW COMBINATIONS WERE TO OPERATE AND WITH
WHICH THEY WERE TO DOVETAIL,  FN7  BUT, IN MENTIONING THESE OTHER
MECHANICAL PARTS, THE CLAIM DOES NOT PURPORT TO EMBODY THEM AS ELEMENTS
OF THE CLAIMED COMBINATION.  TO CONSTRUE SUCH A CLAIM FOR A COMBINATION
OF NEW ELEMENTS INTENDED TO BE EMBODIED IN SOME WELL RECOGNIZED
MECHANICAL AGGREGATION, SUCH AS A SEWING MACHINE OR A WASHING MACHINE,
AS A CLAIM COVERING ALL THE MECHANICAL DETAILS, OR ALL THE WELL KNOWN
PARTS OF THE MACHINE, WOULD BE TO NULLIFY EVERY PATENT FOR AN
IMPROVEMENT IN A TYPE OF MACHINE LONG IN USE AND WOULD INVALIDATE
THOUSANDS OF PATENTS FOR IMPROVEMENTS IN STANDARD MACHINES.  IT WOULD
BE DIFFICULT TO DESCRIBE AN IMPROVEMENT IN A WASHING MACHINE WITHOUT
NAMING SUCH A MACHINE AS THE THING TO WHICH THE PATENT IS ADDRESSED,
AND EQUALLY DIFFICULT TO REFRAIN FROM REFERRING TO VARIOUS PARTS OF THE
MACHINE, SUCH AS THE TUB OR THE MOTOR WHICH ACTUATES THE WASHER.  BUT
IT HAS NEVER BEEN THOUGHT THAT A CLAIM LIMITED TO AN IMPROVEMENT IN
SOME ELEMENT OF THE MACHINE IS, BY SUCH REFERENCE, RENDERED BAD AS
CLAIMING A MONOPOLY OF TUBS OR MOTORS USED IN WASHING MACHINES. 

BASSICK MFG. CO. V. HOLLINGSHEAD, SUPRA, AND LINCOLN ENGINEERING CO.
V. STEWART-WARNER CORP., SUPRA, LEND NO SUPPORT TO THE PETITIONER'S
ARGUMENT.  THOSE WERE SUITS FOR CONTRIBUTORY INFRINGEMENT.  IN THE
BASSICK CASE, THE INVENTION WAS OF AN IMPROVED PIN FITTING FOR
RECEIVING GREASE.  THE COMBINATION CLAIMED WAS STATED AS A COMBINATION
OF A GREASE GUN, A COUPLER, AND A PIN FITTING OF THE IMPROVED TYPE.  IT
WAS SOUGHT TO CONVICT ONE WHO SOLD GREASE GUNS, COMMON IN THE PRIOR
ART, OF CONTRIBUTORY INFRINGEMENT BECAUSE THE SELLER KNEW, AND
INTENDED, THAT THE GUNS SHOULD BE USED WITH THE IMPROVED PIN FITTING. 
THE EFFORT WAS TO EXTEND THE MONOPOLY EMBODIED IN THE IMPROVED PIN
FITTING SO AS TO PREVENT SALE OR USE OF WELL KNOWN GREASE GUNS OF THE
PRIOR ART, ALTHOUGH WHATEVER WAS NOVEL IN THE IMPROVED PIN FITTING WAS
PECULIAR TO ITSELF AND HAD NOTHING TO DO WITH THE GREASE GUN COMMONLY
USED IN CONNECTION WITH ALL PIN FITTINGS.  HAD THE CLAIM MERELY RECITED
THAT IT APPLIED TO AN IMPROVED TYPE OF PIN FITTING TO BE USED IN
CONNECTION WITH GREASE GUNS AND COUPLERS, THE CLAIM FOR THE PIN FITTING
WOULD HAVE BEEN GOOD, AND WOULD NOT HAVE BEEN RENDERED BAD BY THE
STATEMENT THAT THE FITTING WAS INTENDED FOR USE IN CONNECTION WITH
THOSE OTHER INSTRUMENTALITIES. 

THE LINCOLN ENGINEERING CASE WENT ON THE SAME PRINCIPLE. 

THE PRESENT SUIT FOR INFRINGEMENT IS NOT FOR THE USE OF AN AUTOMATIC
BED LASTING AND TACKING MACHINE AS SUCH.  IT IS FOR THE USE IN SUCH A
MACHINE OF IMPROVEMENTS OF CERTAIN FEATURES OF THE MACHINE.  THE
RESPONDENT DOES NOT PRETEND TO FIX LIABILITY ON THE PETITIONER FOR
CONTRIBUTORY INFRINGEMENT BY REASON OF THE USE OF AN AUTOMATIC POWER
DRIVEN LASTING AND TACKING MACHINE WHICH DOES NOT EMPLOY THE NOVEL
IMPROVEMENTS OF THE COMBINATIONS CLAIMED, AND COULD NOT DO SO.  IT IS
ADMITTED, AS IT MUST BE, THAT THE PETITIONER IS FREE TO USE THE MACHINE
SHOWN IN THE FIRST MCFEELY PATENT, WHICH HAS EXPIRED, OR ANY OTHER
AUTOMATIC LASTING AND TACKING MACHINE WHICH DOES NOT EMBODY THE THREE
IMPROVEMENTS COVERED BY THE CLAIMS IN SUIT.  FN8  IT IS NOT FREE,
HOWEVER, TO USE SUCH A MACHINE IF IT EMBODIES ANY ONE OF THE THREE
COMBINATIONS EMBRACED IN THOSE CLAIMS RESPECTIVELY.  THE USE OF THESE
COMBINATIONS IS THE BASIS OF ITS LIABILITY FOR INFRINGEMENT. 

THE DECREE IS AFFIRMED. 

FN1  29 F.SUPP.  1015. 

FN2  121 F.2D 273. 

FN3  "ANY PERSON WHO HAS INVENTED OR DISCOVERED ANY NEW AND USEFUL
...  MACHINE  ...  OR ANY NEW AND USEFUL IMPROVEMENTS THEREOF  ...  MAY
...  OBTAIN A PATENT THEREFOR."  R.S. 4886, AS AMENDED, 35 U.S.C. SEC.
31. 

FN4  BATTIN V. TAGGERT, 17 HOW.  74, 85; BISCHOFF V. WETHERED, 9
WALL.  812, 814; THOMSON SPOT WELDER CO. V. FORD MOTOR CO., 265 U.S.
445, 446; STILZ V. UNITED STATES, 269 U.S. 144, 147. 

FN5  CONTINENTAL PAPER BAG CO. V. EASTERN PAPER BAG CO., 210 U.S.
405, 416, 422; ADAMSON V. GILLILAND, 242 U.S. 350. 

FN6  COMPARE E.G. GRIER V. WILT, 120 U.S. 412, 420, 421; MORLEY
MACHINE CO. V. LANCASTER, 129 U.S. 263, 266; KEYSTONE MANUFACTURING CO.
V. ADAMS, 151 U.S. 139, 142; DEERING V. WINONA HARVESTER WORKS, 155
U.S. 286, 289, 290; BOYD V. JANESVILLE HAY TOOL CO., 158 U.S. 260, 264;
KOKOMO FENCE MACHINE CO. V. KITSELMAN, 189 U.S. 8, 10, 14; ALTOONA
PUBLIX THEATRES V. AMERICAN TRI-ERGON CORP., 294 U.S. 477, 482. 

FN7  COMPARE MCCORMICK V. TALCOTT, 20 HOW.  402, 404; LOOM COMPANY V.
HIGGINS, 105 U.S. 580, 586. 

FN8  SEYMOUR V. OSBORNE, 11 WALL.  516, 541, 548. 

MR. JUSTICE BLACK, DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE MURPHY CONCUR. 

 I    IN 1873, MR. JUSTICE BRADLEY, SPEAKING FOR THIS COURT IN
CARLTON V. BOKEE, SAID:  "WE THINK IT PROPER TO REITERATE OUR
DISAPPROBATION OF THESE INGENIOUS ATTEMPTS TO EXPAND A SIMPLE INVENTION
OF A DISTINCT DEVICE INTO AN ALLEMBRACING CLAIM, CALCULATED BY ITS WIDE
GENERALIZATIONS AND AMBIGUOUS LANGUAGE TO DISCOURAGE FURTHER INVENTION
IN THE SAME DEPARTMENT OF INDUSTRY AND TO COVER ANTECEDENT INVENTIONS. 
WITHOUT DECIDING THAT A REPETITION OF SUBSTANTIALLY THE SAME CLAIM IN
DIFFERENT WORDS WILL VITIATE A PATENT, WE HOLD THAT WHERE A
SPECIFICATION BY AMBIGUITY AND A NEEDLESS MULTIPLICATION OF NEBULOUS
CLAIMS IS CALCULATED TO DECEIVE AND MISLEAD THE PUBLIC, THE PATENT IS
VOID."  17 WALL.  463, 471-472.  I BELIEVE THAT THE PATENT OF WHICH THE
FIVE CLAIMS NOW HELD VALID ARE A PART EMBODIES EVERY ONE OF THE VICES
REFERRED TO BY MR. JUSTICE BRADLEY, AND MANY MORE BESIDES. 

I RECOGNIZE THAT THE AUTOMATIC POWER-DRIVEN HEEL SEAT LASTER, THE
MACHINE TO WHICH THESE FIVE CLAIMS RELATE, IS A GREAT TECHNOLOGICAL
ACHIEVEMENT.  BUT IT IS NOT THE WORK OF A SINGLE PERSON, NOR CAN IT BE
ATTRIBUTED TO ANY ONE GENERATION.  ON THE CONTRARY, IT REPRESENTS THE
SUM OF GRADUAL DEVELOPMENTS WROUGHT BY THE SKILL, PERSEVERANCE, AND
CREATIVE GENIUS OF COUNTLESS PERSONS THROUGHOUT MANY CENTURIES.  TO
THIS FINISHED MACHINE, CONTRIBUTIONS HAVE BEEN MADE BY THOSE WHO FIRST
HARNESSED STEAM, GAS, AND ELECTRICITY TO MACHINERY, AS WELL AS THOSE
WHO DISCOVERED AND USED IN COMBINATION CAMS, PIVOTS, PULLEYS, BELTS,
LATCHES, TRIGGERS, SPRINGS AND SPRING LATCHES, BRAKES AND BRAKE
BLOCKS. 

THE EXACT DATE OF THE FIRST USE OF MACHINES IN THE MANUFACTURE OF
SHOES IS NOT KNOWN.  BUT WE KNOW THAT, IN 1790, THOMAS SAINT SECURED A
PATENT IN ENGLAND ON A MACHINE FOR THE FASTENING OF SOLES TO UPPERS;
AND THAT, IN 1810, M. I. BRUNEL SECURED A PATENT IN THIS COUNTRY ON A
MACHINE TO PERFORM THE SAME FUNCTION.  THE PROGRESS OF THE ART FOR THE
NEXT FIFTY YEARS CULMINATED IN THE STITCHING MACHINE JOINTLY PATENTED
BY BLAKE AND MCKAY IN 1860.  BY 1876, THIS AND SUBSEQUENT MCKAY SHOE
MACHINES WERE EARNING MORE THAN A HALF MILLION DOLLARS IN ANNUAL PATENT
ROYALTIES FOR HIM, AND HAD GIVEN HIM THE DOMINANT POSITION IN THE
INDUSTRY.  DURING THIS PERIOD ANOTHER CURRENT OF INVENTION PRODUCED THE
CABLE NAILING MACHINE WHICH CUT NAILS AND DROVE THEM AUTOMATICALLY. 
AND IN 1883, JAN ERNST MATZELIGER INVENTED AND PATENTED A MACHINE WHICH
"COULD SIMULTANEOUSLY AND IN A MINUTE'S TIME HOLD THE LAST IN PLACE TO
RECEIVE THE LEATHER; MOVE IT FORWARD STEP BY STEP SO THAT THE OTHER
COACHING PARTS MIGHT DRAW THE LEATHER OVER THE HEEL; PROPERLY PUNCH AND
GRIP THE UPPER AND DRAW IT DOWN OVER THE LAST; LAY THE LEATHER PROPERLY
AT THE HEEL AND TOE; FEED THE NAILS AND HOLD THEM IN POSITION FOR
DRIVING; AND THEN DISCHARGE THE COMPLETED SHOE FROM THE MACHINE."  FN1
THE FOREGOING INVENTIONS AND NUMEROUS OTHERS PATENTED AND PUT INTO USE
BY THE CLOSE OF THE CENTURY COMPLETELY TRANSFORMED THE NATURE OF SHOE
MANUFACTURING.  REVIEWING THESE AND OTHER DEVELOPMENTS, THE UNITED
STATES CENSUS REPORT OF 1900 CONCLUDED THAT "THE GENIUS OF THE AMERICAN
INVENTOR HAS PROVIDED FOR EVERY DETAIL OF SHOEMAKING, EVEN THE SMALLEST
PROCESSES BEING PERFORMED BY MECHANICAL DEVICES OF SOME KIND."  FN2 

THE UNITED SHOE MACHINERY COMPANY WAS FORMED IN 1899.  IT COMBINED IN
ONE ENTERPRISE THE MORE IMPORTANT COMPANIES IN THE SHOE MACHINERY
INDUSTRY AT THE TIME, AND BROUGHT UNDER UNIFIED CONTROL THE MULTITUDE
OF PATENTS WHICH THOSE COMPANIES OWNED.  SINCE THAT TIME, THE UNITED
SHOE MACHINERY COMPANY OR ITS PARENT, THE UNITED SHOE MACHINERY
CORPORATION, WHICH IS THE RESPONDENT IN THIS CASE, HAS CONTINUOUSLY AND
OVERWHELMINGLY DOMINATED THE INDUSTRY.  THE SHOE MACHINERY PATENTS
WHICH THE RESPONDENT HAD ACQUIRED BY 1918 WERE RECOGNIZED BY THIS COURT
TO BE "TOO GREAT IN NUMBER FOR EXPLANATION OR ENUMERATION."  UNITED
STATES V. UNITED SHOE MACH. CO., 247 U.S. 32, 40.  IN 1920, THE FEDERAL
DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI FOUND THAT THE
RESPONDENT CONTROLLED, THROUGH ITS SYSTEM OF LEASING, AT LEAST 95% OF
ALL THE SHOE MACHINERY USED IN THE UNITED STATES.  SEE UNITED SHOE
MACH. CO. V. UNITED STATES, 258 U.S. 451, 455. 

THE NARROW FIELD INTO WHICH THE PATENT IN CONTROVERSY WAS PROJECTED
HAD ALREADY BEEN SO CROWDED BY PRIOR PATENTS, A MULTITUDE OF WHICH WERE
OWNED BY THE RESPONDENT, THAT THE AREA LEFT FOR PATENTABLE INVENTION
WAS VERY SMALL.  AS THE BRIEF TREATMENT IN THE COURT'S OPINION
INDICATES, THE INVENTIONS SET OUT IN THE CLAIMS NOW HELD VALID, IF
INVENTIONS AT ALL, ARE COMPARATIVELY SIMPLE IMPROVEMENTS OF AN
AUTOMATIC POWER-DRIVEN HEEL SEAT LASTING MACHINE. 

THE WORK OF A HEEL SEAT LASTING MACHINE IS TO BEND AND FLATTEN OUT
THE OVERLAPPING PART OF THE SHOE UPPER OVER THE INSOLE AND THEN TACK IT
DOWN SO THAT IT WILL BE READY FOR ATTACHING THE HEEL.  IN THE
PERFORMANCE OF THESE OPERATIONS THE INCOMPLETED SHOE IS FIRMLY HELD BY
A CLASPING DEVICE IN A PROPER POSITION TO PERMIT THE LEATHER TO BE BENT
AND FLATTENED BY "WIPERS" AND FASTENED TO THE INSOLE BY "TACKERS." 

IT IS TO THE CLASPING DEVICE, THE WIPERS, AND THE TACKERS THAT THE
ASSERTED IMPROVEMENTS RELATE.  THE OPERATION OF THESE PARTS MUST BE
CAREFULLY COORDINATED, AND THE COORDINATION MUST BE MAINTAINED WHEN THE
MACHINE IS ADJUSTED FOR DIFFERENT SIZES OF SHOES.  MEANS TO ACCOMPLISH
THE NECESSARY COORDINATION OVER A RANGE OF DIFFERENT SIZES HAD BEEN
CLAIMED IN A PRIOR PATENT  FN3 WHICH, LIKE THE PATENT IN SUIT, WAS
ISSUED TO RONALD F. MCFEELY AND ASSIGNED TO THE RESPONDENT.  THE COURTS
BELOW FOUND AND THE RESPONDENT HERE ARGUES THAT, ALTHOUGH THE MACHINE
MADE IN ACCORDANCE WITH THE FIRST MCFEELY PATENT "SUCCESSFULLY LASTED
SHOES OF SPECIFIC SIZES, IT PROVED INCAPABLE OF OPERATING
SATISFACTORILY UPON A RANGE OF SIZES LARGE ENOUGH TO ADAPT IT FOR
COMMERCIAL OPERATION IN THE ORDINARY SHOE FACTORY."  121 F.2D 273,
278. 

THE IMPROVEMENTS SAID TO CURE THE DEFICIENCIES IN THE EARLIER MACHINE
ARE COVERED IN THE FIVE CLAIMS HERE HELD VALID.  INSOFAR AS THESE
CLAIMS SET OUT ANYTHING NOT CONTAINED IN THE FIRST MCFEELY PATENT, THE
MODIFICATIONS ARE NOT AT ALL COMPLEX.  THE TACKERS AND WIPERS, FORMERLY
CONNECTED IN A MANNER WHICH PERMITTED SOME SLIGHT INDEPENDENCE OF
MOVEMENT, WERE NOW RIGIDLY INTERCONNECTED SO THAT ONE COULD NOT MOVE
WITHOUT THE OTHER; AND A HANDLE WAS SUBSTITUTED FOR A SCREW NUT AS A
MEANS OF MAKING A PRELIMINARY MANUAL ADJUSTMENT FOR SHOES OF DIFFERENT
SIZES.  CHANGES OF EQUAL SIMPLICITY WERE MADE IN THE "HOLD-DOWN" AND
THE "HEEL BAND," TWO OF THE PARTS WHICH CLASP THE SHOE AND HOLD IT IN
PLACE DURING THE ACTUAL LASTING PROCESS. 

THERE IS NO DOUBT THAT THE UNITED SHOE MACHINERY CORPORATION,
PARTICULARLY SINCE IT MAINTAINS A PATENT DEPARTMENT IN WHICH PATENT
LAWYERS ARE REGULARLY EMPLOYED, COULD HAVE CAUSED THESE SIMPLE
IMPROVEMENTS TO BE PATENTED SEPARATELY AND WITHOUT AMBIGUITY OR
PROLIXITY.  NO POSSIBLE JUSTIFICATION CAN BE OFFERED FOR INEXTRICABLY
COMBINING THE DESCRIPTION OF THE ALLEGED IMPROVEMENTS WITH A
DESCRIPTION OF A COMPLETE LASTING MACHINE.  LET US NOW TURN TO THE
PATENT IN SUIT TO SEE HOW FAR IT MEETS THE REQUIREMENT OF R.S. SEC.
4888, 35 U.S.C. SEC. 33, THAT A PATENTEE "SHALL PARTICULARLY POINT OUT
AND DISTINCTLY CLAIM THE PART, IMPROVEMENT, OR COMBINATION WHICH HE
CLAIMS AS HIS INVENTION OR DISCOVERY." 

THE PATENT AS A WHOLE SETS OUT 137 CLAIMS COVERING 16 LARGE CLOSELY
PRINTED PAGES; IT INCLUDES 11 1/2 MORE PAGES OF SPECIFICATIONS AND
NUMEROUS DRAWINGS; IT HAS A TEXT OF MORE THAN 25,000 WORDS, ABOUT
14,000 OF WHICH ARE DEVOTED TO THE CLAIMS.  REMARKS OF JUDGE LEARNED
HAND, MADE WITH RESPECT TO A PATENT MUCH SHORTER THAN THE ONE BEFORE
US, ARE PERTINENT HERE:  "SUCH CLAIMS VIOLATE THE VERY PURPOSE OF ANY
CLAIMS AT ALL, WHICH IS TO DEFINE THE FORBIDDEN FIELD.  IN SUCH A WASTE
OF ABSTRACT VERBIAGE  ...  IT TAKES THE SCHOLASTIC INGENUITY OF A ST.
THOMAS WITH THE PATIENCE OF A YOGI TO DECIPHER THEIR MEANING, AS THEY
STAND."  VICTOR TALKING MACH. CO. V. THOMAS A. EDISON, INC., 229 F.
999, 1001.  ALEXANDER GRAHAM BELL'S BASIC PATENT ON THE TELEPHONE, A
PIONEER INVENTION,  FN4  AFFORDS AN ILLUMINATING CONTRAST.  ALL OF
BELL'S CLAIMS - HE FOUND FIVE AMPLE - CONTAIN IN THE AGGREGATE 229
WORDS, LESS THAN MANY SINGLE CLAIMS OF THIS PATENT; AND THE ENTIRE TEXT
OF HIS PATENT IS ABOUT ONE-TENTH THE LENGTH OF THIS ONE.  FN5  THE
SECOND MCFEELY PATENT, UNLIKE BELL'S, DISCLOSES NO PIONEER INVENTION. 
ON THE CONTRARY, MCFEELY STATED IN HIS APPLICATION THAT HE WAS SEEKING
TO PATENT IMPROVEMENTS.  YET, THE FEATURES OF A HEEL SEAT LASTER ARE
SET OUT SO COMPREHENSIVELY AND IN SUCH DETAIL THAT A TRAINED PERSON
WOULD BE ABLE TO BUILD A COMPLETE MACHINE WITH ONLY THIS IMPROVEMENT
PATENT AS HIS PRIMARY SOURCE OF INFORMATION. 

IF THE MACHINE AS A WHOLE WERE BEING CLAIMED IN THE SECOND MCFEELY,
ARGUMENTS OF SOME PLAUSIBILITY COULD PERHAPS BE MADE TO JUSTIFY THE
LENGTH OF THE PATENT.  FOR THE AUTOMATIC HEEL SEAT LASTER IN ITS
ENTIRETY IS A HIGHLY COMPLEX MACHINE COMBINING A NUMBER OF INTERRELATED
MECHANISMS IN A MANNER WHICH, AS THE COURT BELOW POINTED OUT, ENABLES
IT TO PERFORM ITS INTRICATE FUNCTION "IN THE FRACTION OF A SECOND AND
TOO SWIFTLY FOR THE EYE TO FOLLOW."  121 F.2D 273, 274.  BUT WE MUST
NOT ALLOW OURSELVES TO CONFUSE THE OLD AND THE NEW.  THE IMPRESSIVE
SPEED OF THE MACHINE IS NOT THE RESULT OF THE IMPROVEMENTS.  LIKE MOST
OF THE OTHER ADMIRABLE QUALITIES OF THE MACHINE AS A WHOLE, IT WAS
ATTAINABLE BEFORE THE IMPROVEMENTS WERE PATENTED AND TO IT THE
IMPROVEMENTS MADE NO CONTRIBUTION. 

EVEN IF THERE IS SOME CONCEIVABLE BASIS FOR CREDITING THE MACHINE AS
A WHOLE TO MCFEELY'S GENIUS, HE WAS NOT ENTITLED TO CLAIM IT IN THIS
PATENT.  FOR HIS EARLIER PATENT, EVEN LENGTHIER THAN THIS ONE, HAD
DESCRIBED AND CLAIMED AS PATENTABLE INVENTION EVERY FEATURE OF THE
MACHINE EXCEPT THE MINOR IMPROVEMENTS TO WHICH WE HAVE REFERRED. 

ONE WHO INVENTS IMPROVEMENTS ON A PRIOR INVENTION, WHETHER HIS OWN OR
SOMEONE ELSE'S, MAY PATENT THE IMPROVEMENTS SEPARATELY.  BUT I DO NOT
BELIEVE THAT OUR PATENT SYSTEM WAS INTENDED TO ALLOW THE INDISCRIMINATE
JUMBLING OF THE NEW AND THE OLD WHICH WOULD PERMIT THE INVENTOR OF
IMPROVEMENTS TO EXTEND HIS DOMAIN OF MONOPOLY BY PERPETUATING RIGHTS IN
OLD INVENTIONS BEYOND THE 17 YEARS PERIOD CONGRESS HAS PROVIDED. 

IF WE TURN FROM THE PATENT AS A WHOLE TO THE INDIVIDUAL CLAIMS, WE
FIND IN MANY OF THEM THE SAME GROUND FOR CRITICISM:  THE INTRODUCTION
OF SOMETHING NEW IS TAKEN AS AN OCCASION FOR RECLAIMING THE OLD.  CLAIM
42, ONE OF THE FIVE CLAIMS HELD VALID AND INFRINGED, IS ILLUSTRATIVE. 
IN THESE PROCEEDINGS, THE RESPONDENT MAKES THIS CLAIM THE BASIS OF HIS
ASSERTION THAT THE SECOND MCFEELY EMBODIES A PATENTABLE IMPROVEMENT IN
THE HOLD-DOWN MECHANISM, THE PART OF THE MACHINE WHICH HOLDS THE SHOE
IN THE APPROPRIATE VERTICAL POSITION DURING THE LASTING OPERATION.  BUT
THERE IS NO CLEAR AND DISTINCT STATEMENT IN CLAIM 42 SO LIMITING ITS
SCOPE.  ON THE CONTRARY, THE TRIAL COURT REFERRED TO THIS CLAIM AS "A
GENERAL CLAIM COVERING THE MACHINE BASED ON THE MCFEELY PATENT IN
SUIT," AND THE LANGUAGE OF THE CLAIM ITSELF PURPORTS TO COVER A
"MACHINE OF THE CLASS DESCRIBED."  FN6 

NOT ONLY DOES 42 CLAIM MANY OLD ELEMENTS, BUT THEY ARE CLAIMED IN THE
SAME MANNER AND WITH THE SAME EMPHASIS AS THE HOLD-DOWN MECHANISM. 
INCLUDED AMONG THESE OLD ELEMENTS ARE:  "CLAMPING MEANS TO EMBRACE ONE
END OF A LAST AND SHOE"; "END WIPERS POSITIONED TO OPERATE ON THE EDGES
OF THE UPPER AT THE SAID END OF THE SHOE"; "A SUPPORT FOR A LAST AND
SHOE CONSTRUCTED AND ARRANGED FOR MANUALLY EFFECTED MOVEMENT TO ENGAGE
THE LAST AND SHOE WITH (THE) CLAMPING MEANS AND HOLD-DOWN"; AND
"MECHANISM OPERATIVE TO ACTUATE THE WIPERS TO BREAK DOWN THE EDGE OF
THE UPPER OVER THE BOTTOM OF THE POSITIONED LAST AND SHOE."  ALL OF
THESE OLD ELEMENTS WERE TO OPERATE IN EXACTLY THE SAME MANNER
PRESCRIBED EITHER IN THE FIRST MCFEELY OR OTHER PRIOR PATENTS, AND THEY
WERE TO PERFORM THE SAME FUNCTIONS THEY HAD ALWAYS PERFORMED. 

WE HAVE HELD THAT IF A CLAIM DOES NOT CONTAIN A DISTINCT AND SPECIFIC
STATEMENT OF WHAT THE PATENTEE CLAIMS TO BE NEW, IT IS VOID.  GENERAL
ELECTRIC CO. V. WABASH CO., 304 U.S. 364.  AND WE HAVE ALSO HELD VOID A
CLAIM WHICH SETS OUT AN IMPROVEMENT OF ONE PART OF AN OLD COMBINATION
BUT AT THE SAME TIME PURPORTS TO COVER THE IMPROVEMENT IN COMBINATION
WITH OLD PARTS WHICH PERFORM NO NEW FUNCTION.  LINCOLN CO. V. STEWART
WARNER CORP., 303 U.S. 545.  CLAIM 42, TODAY HELD VALID, CLEARLY
VIOLATES BOTH OF THESE STANDARDS. 

I BELIEVE IT COULD BE CONCLUSIVELY SHOWN THAT ALMOST ALL OF THE 137
CLAIMS ARE OBJECTIONABLE FOR ONE OR BOTH OF THE SAME REASONS AS CLAIM
42.  BUT THE UNNECESSARY LENGTH OF THIS PATENT MAKES IT IMPRACTICABLE
TO PRESENT A COMPLETE EXPOSITION OF THE VICES OF EACH SEPARATE CLAIM IN
A JUDICIAL OPINION.  IT MAY BE POSSIBLE, HOWEVER, TO SUGGEST IN A FEW
BRIEF STATEMENTS THE EXTENT OF THE DEFICIENCIES AND THEIR CUMULATIVE
TENDENCY "TO DECEIVE AND MISLEAD THE PUBLIC" WITH RESPECT TO THE SCOPE
OF THE PATENT.  CARLTON V. BOKEE, SUPRA, 472. 

OF THE 137 CLAIMS, 68 PURPORT TO COVER IN UNAMBIGUOUS LANGUAGE EITHER
"A MACHINE OF THE CLASS DESCRIBED" OR "A LASTING MACHINE" OR "A HEEL
SEAT LASTING MECHANISM" WITHOUT ANY HINT OF LIMITATION TO A CLAIMED
IMPROVEMENT.  THE USE OF SUCH BROAD LANGUAGE CANNOT BE DISMISSED AS AN
INCONSEQUENTIAL MATTER OF FORM, SINCE IN SUBSTANCE THESE CLAIMS
EMBRACE, WITH VARYING DEGREES OF COMPREHENSIVENESS, ALL THE FUNDAMENTAL
FEATURES OF AN AUTOMATIC POWER DRIVEN HEEL SEAT LASTER.  FN7 

ALL BUT ONE  FN8  OF THE REMAINING 79 CLAIMS ARE INTRODUCED BY THE
SOMEWHAT LIMITING PHRASE "IN A MACHINE OF THE CLASS DESCRIBED."  BUT IN
ALMOST ALL OF THESE THE INTRODUCTION IS FOLLOWED BY A RECITAL OF OLD
ELEMENTS CLAIMED IN THE SAME MANNER AS THEY WERE IN THE EARLIER
MCFEELY,  FN9  AND HERE AGAIN THE AGGREGATE EFFECT IS TO RECLAIM A HEEL
SEAT LASTING MACHINE IN ITS ENTIRETY.    RECENT STUDIES CONDUCTED BY
THE TEMPORARY NATIONAL ECONOMIC COMMITTEE SHOW THAT THE TECHNIQUE
EMPLOYED IN THE SECOND MCFEELY PATENT IS NOT UNUSUAL.  FN10  IN
ESSENCE, IT IS AN ATTEMPT TO UTILIZE MINOR IMPROVEMENTS TO PERPETUATE
EXCLUSIVE ENJOYMENT OF A MAJOR INSTRUMENT OF PRODUCTION WHICH
RIGHTFULLY BELONGS TO THE PUBLIC.  DISTINCT SEPARATION OF THE NEW WOULD
AFFORD GUIDANCE TO THOSE WHO WISHED TO USE THE OLD WHEN THE EXCLUSIVE
RIGHTS TO IT EXPIRED.  ON THE OTHER HAND, BLURRING THE LINES OF
SEPARATION PLACES ANYONE WHO ATTEMPTS TO USE ANY PART OF THE AMALGAM IN
JEOPARDY OF BURDENSOME INFRINGEMENT SUITS.  WHERE THE PATENT OWNER HAS
AMPLE RESOURCES TO BEAR THE COSTS OF REPEATED LITIGATION, THE POWER OF
THE INFRINGEMENT SUIT TO STIFLE COMPETITION IS INCREASED.  AND WHERE
POTENTIAL COMPETITORS ARE WEAK AND FEW, IT MAY AFFORD A PRACTICALLY
COMPLETE PROTECTION FOR THE PRESERVATION OF UNDERSERVED MONOPOLY. 

THE CIRCUMSTANCES HERE ARE MOST FAVORABLE FOR THE USE OF PATENT
PRIVILEGES AS A DETERRENT TO ALL COMPETITION.  BY ITS VAGUENESS AND
GENERALITY, THE PATENT IN SUIT CREATES AN OVERHANGING THREAT TO ANYONE
WHO MIGHT WANT TO PRODUCE ANY KIND OF HEEL SEAT LASTING MACHINERY.  AND
THIS THREAT IS INTENSIFIED BY THE UNIVERSAL RECOGNITION OF THE PATENT
OWNER'S LONG ESTABLISHED RULE OVER THE ENTIRE SHOE MACHINERY INDUSTRY. 

MOREOVER, IT IS ENTIRELY UNREALISTIC TO JUDGE THIS PATENT IN
ISOLATION.  IT IS A STAGE OF A PROCESS WHICH THE RECORD SHOWS BEGAN
YEARS BEFORE AND IS STILL CONTINUING, A PROCESS BY WHICH IT APPEARS
POSSIBLE FOR THE RESPONDENT TO MAKE THE MONOPOLY ENDLESS.  THE FIRST
MCFEELY PATENT, ASSIGNED TO THE RESPONDENT, EMBRACED THE WHOLE UNIVERSE
OF PRIOR DEVELOPMENT IN HEEL SEAT LASTING MACHINES.  ABOUT A YEAR AFTER
IT WAS ISSUED, THE UNITED SHOE MACHINERY COMPANY BECAME THE OWNER OF
ANOTHER PATENT ON A LASTING MACHINE, BROCK NO. 1,188,616.  THE 77
CLAIMS OF THIS PATENT REEMBODY TOO MANY OF THE FEATURES PREVIOUSLY
COVERED BY THE FIRST MCFEELY TO ALLOW ENUMERATION HERE.  FOUR YEARS
LATER, PYM NO. 1,368,968, ALSO ON A LASTING MACHINE, WAS ISSUED AND
ASSIGNED TO THE RESPONDENT.  OF THE 172 CLAIMS OF THIS PATENT, THERE IS
ANOTHER MULTITUDE EMBODYING IDENTICAL FEATURES OF THE FIRST MCFEELY. 
ALTHOUGH APPLIED FOR ABOUT A YEAR AFTER THE FIRST MCFEELY, THE PATENT
IN SUIT WAS NOT ISSUED UNTIL 1925, FOUR YEARS AFTER THE PYM PATENT. 
THE SECOND MCFEELY APPEARS TO BE ONLY THE CURRENTLY USED WEAPON; THE
RECORD REVEALS ANOTHER IN THE RESPONDENT'S ARSENAL, AWAITING SERVICE
WHEN THIS ONE IS NO LONGER USEFUL.  FN11  TO DATE, THE SERIES OF
OVERLAPPING PATENTS HAS BEEN CONTINUOUS.  THERE IS NO REASON TO SUPPOSE
THAT ABANDONMENT OF SO SUCCESSFUL A PRACTICE IS CONTEMPLATED FOR THE
FUTURE. 

THE DISCOURAGEMENT TO FUTURE INVENTION AND THE POTENTIALITIES OF
DECEIVING AND MISLEADING THE PUBLIC, WHICH THIS COURT CONDEMNED 70
YEARS AGO, ARE HERE PRESENT IN FULLEST MEASURE.  CARLTON V. BOKEE,
SUPRA.  OPPOSED TO DEPARTURE FROM THE SALUTARY RULE ANNOUNCED BY MR.
JUSTICE BRADLEY, I BELIEVE THE PATENT BEFORE US SHOULD BE DECLARED
VOID. 

               II 

IN ADDITION TO THE FOREGOING REASONS FOR DECLARING THE ENTIRE PATENT
VOID, THERE IS AN INDEPENDENT NARROWER GROUND FOR REVERSING THE
DECISION BELOW.  THE FIVE CLAIMS HERE RELIED UPON SET OUT ONLY AN
AGGREGATION OF OLD ELEMENTS NOT CONSTITUTING PATENTABLE INVENTION. 
FN12  AND WHERE, AS HERE, AN APPELLATE COURT CAN DETERMINE FROM A MERE
CONSTRUCTION AND COMPARISON OF PATENTS THAT AN ALLEGED NEW INVENTION IS
IN REALITY IDENTICAL WITH INVENTIONS CLAIMED IN PRIOR PATENTS, THE
QUESTION OF PATENTABILITY SHOULD BE REVIEWED.  HEALD V. RICE, 104 U.S.
737, 749.  CF. SINGER CO. V. CRAMER, 192 U.S. 265, 275. 

IT WAS THE VIEW OF BOTH COURTS BELOW THAT, ALTHOUGH A MACHINE
MANUFACTURED UNDER MCFEELY'S EARLIER PATENT HAD "SUCCESSFULLY LASTED
SHOES OF SPECIFIC SIZES, IT PROVED INCAPABLE OF OPERATING
SATISFACTORILY UPON A RANGE OF SIZES LARGE ENOUGH TO ADAPT IT FOR
COMMERCIAL OPERATION IN THE ORDINARY SHOE FACTORY."  THE FIVE CLAIMS IN
SUIT RELATE TO THREE SMALL ADJUSTMENTS OF THE FIRST MCFEELY MACHINE,
INTENDED TO CURE THIS ALLEGED DEFICIENCY.  THE RESPONDENT NOWHERE
ASSERTS THAT THE ADJUSTMENTS WERE INTENDED TO ACCOMPLISH ANY OTHER
PURPOSE OR THAT IN FACT THEY DID.  NOR DID THE COURTS BELOW REST THEIR
CONCLUSIONS UPON FINDINGS THAT ANY OTHER PURPOSE WAS ACCOMPLISHED. 
THEY FOUND NOVELTY AND USEFULNESS IN THE INCREASED ADAPTABILITY OF THE
LATER MACHINES OVER A WIDER RANGE OF SIZES; AND IN THE MINOR MECHANICAL
CHANGES MADE TO CURE THE SHORTCOMINGS OF THE EARLIER MACHINE, THEY
FOUND PATENTABLE INVENTION. 

BUT NOVELTY AND USEFULNESS ARE NOT ENOUGH, FOR, TO BE PATENTABLE,
IMPROVEMENTS "MUST, UNDER THE CONSTITUTION AND THE STATUTE, AMOUNT TO
AN INVENTION OR DISCOVERY."  THOMPSON V. BOISSELIER, 114 U.S. 1, 11. 
AND EVEN THOUGH IMPROVEMENTS PRODUCE "A MORE CONVENIENT AND ECONOMICAL
MECHANISM," OR A "MORE CONVENIENT AND MORE SALABLE" PRODUCT, OR A
MACHINE OF "GREATER PRECISION," THEY ARE NOT PATENTABLE IF THEY "SPRANG
NATURALLY FROM THE EXPECTED SKILL OF THE MAKER'S CALLING."  FN13  AS
THIS COURT SAID IN 1875, "PERFECTION OF WORKMANSHIP, HOWEVER MUCH IT
MAY INCREASE THE CONVENIENCE, EXTEND THE USE, OR DIMINISH EXPENSE, IS
NOT PATENTABLE."  RECKENDORFER V. FABER, 92 U.S. 347, 356-357.  CF.
CUNO ENGINEERING CORP. V. AUTOMATIC DEVICES CORP., 314 U.S. 84, 90-92. 

A COMPARISON OF THE PATENT IN SUIT WITH PATENTS OF THE PAST SHOWS
THAT THE IMPROVEMENTS HERE WERE BUT DUPLICATIONS OF OLD ELEMENTS TO
OBTAIN AN OLD RESULT AND THEIR APPLICATION TO THE FIRST MCFEELY MACHINE
WAS NO MORE THAN A COMMON MECHANICAL EXPEDIENT.  THE OBJECTIVE,
ADAPTING THE MACHINE TO SHOES OF DIFFERENT SIZES, SUGGESTS ITS OWN
MEANS OF ACCOMPLISHMENT. 

EVEN BEFORE 1900, AUTOMATIC TACKING MACHINES AND AUTOMATIC WIPING
MACHINES, ADAPTABLE TO SHOES OF DIFFERENT SIZES, HAD BEEN IN USE
COMMERCIALLY.  IN CONNECTION WITH THE ISSUANCE OF HIS EARLIER PATENT,
MCFEELY REPRESENTED THAT HE HAD SUCCEEDED IN COMBINING TACKERS AND
WIPERS IN A SINGLE MACHINE AND THAT HIS PATENT THEREFORE SET OUT A
PIONEER INVENTION, DISCLOSING THE FIRST MACHINE ORGANIZED FOR THE
ENTIRE PROCESS OF HEEL SEAT LASTING.  THE UNITED SHOE MACHINERY COMPANY
BUILT A MACHINE IN ACCORDANCE WITH THE PATENT AND PLACED IT IN A
FACTORY FOR TESTING PURPOSES.  SHOES LASTED ON IT WERE SOLD TO THE
FACTORY OWNER'S REGULAR SHOE TRADE.  MCFEELY HAD DESCRIBED IN DETAIL
MEANS TO SET THE PARTS BEFORE THE LASTING OPERATION BEGAN SO THAT THE
MACHINE WOULD PROPERLY DO ITS WORK WHATEVER THE SIZE OF THE SHOE.  FN14
IT IS SAID THE TESTS REVEALED THAT THESE PRELIMINARY ADJUSTMENT
DEVICES WERE NOT ADEQUATE TO ACCOMMODATE ALL SIZES, ALTHOUGH THEY DID
PERMIT THE MACHINE TO FUNCTION SATISFACTORILY ON SOME. 

THE PROBLEM WAS TO ENABLE THE OPERATOR IN ADVANCE TO ENLARGE OR
DIMINISH THE AREA WITHIN WHICH THE TACKERS, WIPERS, AND SHOE CLASPING
DEVICES WOULD DO THEIR WORK AS THE SHOE TO BE LASTED MIGHT BE LARGER OR
SMALLER.  THE MOST OBVIOUS ANSWER WAS ADJUSTMENTS TO PERMIT APPROPRIATE
POSITIONING OF THE PARTS.  THREE SEPARATE HAND ADJUSTMENTS WERE
THEREFORE PROVIDED TO SET THE TACKER-WIPER COMBINATION, THE HEEL
CLASPING DEVICE, AND THE HOLD-DOWN MECHANISM.  THE ADJUSTMENTS WERE SO
ARRANGED THAT THE OPERATOR OF THE MACHINE COULD EITHER BY USE OF A SET
SCREW OR HANDLE PLACE THESE SEPARATE PARTS IN APPROPRIATE POSITIONS FOR
THE PARTICULAR SIZE OF SHOE TO BE LASTED.  THE POSITIONS SET BY THE
OPERATOR ARE MAINTAINED UNTIL RESET FOR SHOES OF ANOTHER SIZE. 

TECHNOLOGICAL KNOWLEDGE AND DEVELOPMENT HAD ADVANCED TOO FAR BY 1916
TO WARRANT ELEVATION OF SUCH HAND ADJUSTMENTS TO THE PRIVILEGED
POSITION RESERVED FOR INVENTIONS.  EITHER IN OR OUT OF THE COMBINATION
THESE ADJUSTMENTS PERFORMED NO MORE THAN THE OLD FUNCTIONS THAT
ADJUSTMENTS BY HAND LEVERS AND SET SCREWS HAD ALWAYS PERFORMED.  YET
WITHOUT THESE HAND ADJUSTMENTS THE PROBLEM ALLEGED TO HAVE BEEN
REVEALED BY OPERATION OF THE FIRST MCFEELY MACHINE WOULD NOT HAVE BEEN
MET.  FOR HAND ADJUSTMENTS WERE THE INDISPENSABLE ELEMENTS OF THE
CLAIMED IMPROVEMENTS.  SINCE I BELIEVE THAT SUCH ADJUSTMENTS SHOULD NOT
BE RAISED TO THE DIGNITY OF PATENTABLE INVENTION I THINK THE FIVE
CLAIMS SHOULD BE HELD INVALID. 

NO ARGUMENT IS MADE THAT THE REMAINING ELEMENTS STANDING ALONE WOULD
HAVE CAUSED THE MACHINE TO FUNCTION SATISFACTORILY ON SHOES OF ALL
SIZES.  NEVERTHELESS, I SHALL GIVE THE REASONS FOR MY BELIEF THAT THERE
IS NOT PATENTABLE INVENTION IN THE REMAINING ELEMENTS OF THE FIVE
CLAIMS. 

TACKER-WIPER CONNECTION.  IN THE FIRST MACHINE, THE TACKERS AND
WIPERS WERE LOOSELY CONNECTED IN A MANNER ALLOWING A SLIGHT
INDEPENDENCE OF MOVEMENT.  DEMONSTRATION OF THE MACHINE INDICATED THAT
MORE SATISFACTORY RESULTS WOULD BE OBTAINED IF TACKERS AND WIPERS
MAINTAINED A FIXED RELATIONSHIP TO EACH OTHER THROUGHOUT ALL THE
MOVEMENTS OF THE LASTING OPERATION.  HERE AGAIN THE PROBLEM SUGGESTED
ITS OWN ANSWER.  IT IS DIFFICULT TO IMAGINE THAT ANY MECHANIC WOULD BE
IGNORANT OF THE PRINCIPLE THAT IF TWO PARTS ARE FASTENED TOGETHER, THEY
WILL MOVE SIMULTANEOUSLY.  THE CHANGE IN THE TACKER-WIPER MECHANISM WAS
NO MORE THAN THE APPLICATION OF THIS PRINCIPLE.  TACKERS AND WIPERS
WERE MORE RIGIDLY INTERCONNECTED.  EVEN IF SUCH AN EXPEDIENT COULD EVER
HAVE BEEN INVENTION, IT HAD BEEN ANTICIPATED IN THE FIELD OF SHOE
MACHINERY AS FAR BACK AS 1881, WHEN GEOGE W. COPELAND, MATTHIAS BROCK,
AND JOSEPH E. CRISP OBTAINED PATENT NO. 244,714 ON AN AUTOMATIC POWER
DRIVEN LASTING MACHINE WHICH CLAIMED A COMBINATION OF WIPER PLATES AND
FASTENERS TO BE MOVED SIMULTANEOUSLY TO THE PROPER POSITION FOR WIPING
AND FASTENING THE SOLE.  I CAN SEE NO EVIDENCE WHATEVER OF AN EXERCISE
OF THE INVENTIVE FACULTY IN THE FASTENING OF TACKERS AND WIPERS RIGIDLY
TOGETHER SO AS TO CAUSE THEM TO MOVE SIMULTANEOUSLY AND MAINTAIN A
FIXED RELATIONSHIP WITH EACH OTHER. 

HEEL BAND AND HOLD-DOWN.  THE FIRST MCFEELY, AS HAD MANY PRIOR
PATENTS, DESCRIBED A U-SHAPED LEATHER HEEL BAND ADAPTED TO GRIP AND
HOLD THE SHOE WHILE IT WAS WIPED AND TACKED.  IT IS ASSERTED THAT THE
PATENT IN SUIT ADDED ATTACHMENTS WHICH PERMIT THE HEEL BAND TO SLIDE
RELATIVE TO ITS SUPPORTS.  THE FIRST MCFEELY ALSO DESCRIBED A HOLD-DOWN
DEVICE FOR MAINTAINING THE SHOE IN APPROPRIATE VERTICAL POSITION FOR
THE LASTING OPERATIONS.  IT IS ASSERTED THAT THE CLAIM OF THE SECOND
MCFEELY WHICH PROVIDES FOR THE HOLD-DOWN MECHANISM MODIFIES THE FIRST
BY INTRODUCING A NEW "SEQUENCE OF OPERATIONS."  THE ASSERTED
MODIFICATIONS OF BOTH HEEL BAND AND HOLD-DOWN ARE CLAIMED IN
CONJUNCTION WITH THE HAND ADJUSTMENTS PREVIOUSLY DISCUSSED. 

SINCE THE BEGINNING OF SHOE LASTING, IT HAS BEEN RECOGNIZED THAT THE
SHOE MUST BE HELD FIRMLY IN THE PROPER POSITION FOR WIPING AND
TACKING.  HEEL BANDS AND HOLD-DOWNS SIMILAR TO THOSE CLAIMED HERE
APPEAR IN THE RECORD IN NUMEROUS DRAWINGS, SPECIFICATIONS, AND CLAIMS
OF A LONG SERIES OF PATENTS PRIOR TO THE ONE BEFORE US.  THE GREAT
NUMBER OF PATENTS, EMBODYING APPARENTLY LIMITLESS VARIATIONS OF THE
SAME BASIC PRINCIPLES, SUGGESTS THAT THE PUBLIC HAD BEFORE MCFEELY'S
SECOND PATENT ALREADY PAID IN FULLEST MEASURE FOR HEEL BANDS AND HOLD
DOWNS. 

EXAMINATION OF ONLY THREE OF THESE PATENTS - PLANT NO. 958,280(1910),
KEYES NO. 1,023,854(1912), AND BROCK NO. 1,188,616(1916) - IS ENOUGH TO
SHOW COMPLETE ANTICIPATION OF THE ENTIRE PRINCIPLE OF THE SLIDING HEEL
BAND CAPABLE OF FORWARD AND BACKWARD MOVEMENT IF NOT EVERY ESSENTIAL
MECHANICAL DETAIL. 

THE GENERAL CLAIM OF THE SECOND MCFEELY WHICH SETS OUT THE HOLD-DOWN
MECHANISM IS SAID TO PROVIDE FOR A "PARTICULAR SEQUENCE" OF
OPERATIONS.  INSOFAR AS THE AMBIGUITIES OF THIS CLAIM  FN15 PERMIT SUCH
A DEDUCTION, THERE IS NEVERTHELESS A FAILURE TO DISCLOSE ANY PATENTABLE
INVENTION.  OF COURSE, THE SEQUENCE OF OPERATIONS IN WHICH THE HOLD
DOWN PLAYS A CRUCIAL PART IS IMPORTANT.  FOR THE SHOE MUST BE
MAINTAINED IN SUCH A VERTICAL POSITION THAT THE SUCCESSIVE STROKES OF
THE WIPERS WILL PERFORM THEIR PROPER FUNCTION.  IF THE SHOE IS TOO LOW
WITH RESPECT TO THE WIPERS, THE LEATHER WILL NOT BE BENT DOWN
SUFFICIENTLY FAR; IF THE SHOE IS TOO HIGH WITH RESPECT TO THE WIPERS,
THE WIPERS WILL HIT THE SHOE BELOW THE INSOLE AND THEREFORE WILL NOT
PRODUCE ANY BENDING OF THE LEATHER AT ALL.  BUT IN SETTING OUT A
MECHANISM TO INSURE THE PROPER RELATIONSHIP BETWEEN THE LEVEL OF THE
SHOE AND THE LEVEL OF THE WIPERS DURING SUCCESSIVE STROKES OF THE
MACHINE, THE SECOND MCFEELY PATENT IS BY NO MEANS NEW.  CLAIM 49 OF THE
FIRST MCFEELY PATENT INCLUDES A "PROVISION FOR CHANGING RELATIVELY THE
PLANE OF ACTION OF THE WIPERS AND THE POSITION OF THE SHOE BETWEEN
SUCCESSIVE ACTUATIONS OF THE WIPERS."  AND IN CLAIM 164 OF THE FIRST
MCFEELY IT APPEARS THAT THE HOLD-DOWN MECHANISM WAS RECOGNIZED AS
HAVING A MAJOR ROLE IN ACCOMPLISHING THIS PURPOSE.  FOR CLAIM 164
SPECIFICALLY PROVIDES "MEANS FOR AUTOMATICALLY ACTUATING THE HOLD DOWN
UPWARDLY AND THEN DOWNWARDLY AGAIN BETWEEN THE INITIAL ADVANCE OF THE
WIPER AND A FINAL RETRACTION OF THE WIPER."  IF THE "SEQUENCE" OF THE
SECOND MCFEELY IS ANY DIFFERENT, THE DIFFERENCE CANNOT BE SEEN IN THE
PROVISIONS OF THE CLAIM RELIED UPON, NOR IS IT EXPLAINED IN THE RECORD;
IF, AS I BELIEVE, THE "SEQUENCE" IN BOTH PATENTS IS THE SAME, THE
SECOND IS INVALID BECAUSE ANTICIPATED. 

IN SHORT, THIS RECORD SHOWS THAT THE OLD ELEMENTS COMPOSING THE
ASSERTED IMPROVEMENTS HERE HAD BEEN DESCRIBED AND REDESCRIBED, CLAIMED
AND RECLAIMED AS PATENTABLE INVENTIONS.  THE RESPONDENT HAS USED EVERY
ONE OF THEM IN PREVIOUS PATENTS NOW EXPIRED.  IT SHOULD NOT BE ALLOWED
TO CONTINUE ITS EXCLUSIVE CONTROL OVER THEIR USE AND ENJOYMENT. 

THERE IS PERHAPS ANOTHER POSSIBLE GROUND FOR CONCLUDING THAT THE FIVE
CLAIMS SET OUT PATENTABLE INVENTION.  CONCEIVABLY THE THREE ASSERTED
IMPROVEMENTS, ALTHOUGH EACH SEPARATELY IS NO MORE THAN A MECHANICAL
EXPEDIENT OR A SIMPLE ADAPTATION OF PRIOR INVENTION, COULD BE ACCEPTED
IN COMBINATION AS AN EXERCISE OF THE INVENTIVE FACULTY.  THE COURT
BELOW APPARENTLY DID EVALUATE THE IMPROVEMENTS IN COMBINATION, FOR IT
FOUND THAT, TAKEN TOGETHER, THEY RESULTED IN A "NEW UNITARY MODE OF
OPERATION OF THE ENTIRE MACHINE."  121 F.2D 273, 278.  BUT THE
STATEMENT IS UNEXPLAINED, AND I CANNOT FIND SUPPORT FOR IT IN THE
RECORD.  ON THE CONTRARY, COMPARISON OF THE FIRST AND SECOND MCFEELY
PATENTS SHOWS THAT THE BASIC MODE OF OPERATION OF THE ENTIRE MACHINE IN
BOTH WAS IDENTICAL.  IN THE EARLIER MACHINE, THE SHOE WAS PLACED ON A
LAST AT THE END OF A JACK, FIRMLY HELD IN POSITION WHILE THE WIPING AND
TACKING TOOK PLACE, AND THEN RELEASED.  IN THESE FUNDAMENTAL RESPECTS,
THE MODE OF OPERATION PROVIDED FOR IN THE SECOND MCFEELY PATENT IS THE
SAME, WHATEVER MODIFICATIONS MCFEELY MAY HAVE ADDED FOR THE PURPOSE OF
INCREASING ADAPTABILITY TO DIFFERENT SIZES OF SHOES NOT HAVING AFFECTED
IT IN THE SLIGHTEST. 

IN ANY EVENT, "EACH CLAIM MUST STAND OR FALL, AS ITSELF SUFFICIENTLY
DEFINING INVENTION, INDEPENDENTLY OF THE OTHERS."  ALTOONA THEATRES V.
TRI-ERGON CORP., 294 U.S. 477, 487.  NONE OF THE FIVE CLAIMS HERE IN
SUIT DISCLOSES A "NEW UNITARY MODE OF OPERATION OF THE ENTIRE
MACHINE."  EVEN IF IT WERE POSSIBLE TO DEDUCE FROM THE FIVE CLAIMS
TAKEN TOGETHER THAT MCFEELY HAD MADE SUCH A DISCLOSURE, NEVERTHELESS
THE PATENT OUGHT NOT TO BE TREATED AS IF THE DISCLOSURE HAD ACTUALLY
BEEN MADE IN APPROPRIATE FORM.  FOR THE CREATION OF A SIXTH CLAIM, A
COMBINATION OF THE OTHER FIVE, WHICH MCFEELY HIMSELF FAILED TO INCLUDE
IN HIS PATENT WOULD ENTAIL A KIND OF CONSTRUCTIVE PATENTING PROCEDURE
FOR WHICH THERE IS NO JUDICIAL OR STATUTORY PRECEDENT. 

THE COURTS BELOW CONCLUDED THAT THE FIVE CLAIMS IN SUIT EMBODIED
PATENTABLE INVENTION.  IN REACHING THIS CONCLUSION, WHICH I BELIEVE IS
OVERWHELMINGLY REFUTED BY EXAMINATION OF THE CLAIMS THEMSELVES AGAINST
THE BACKGROUND OF PRIOR DEVELOPMENTS IN THE ART, HEAVY RELIANCE WAS
PLACED ON TWO EXTRINSIC CONSIDERATIONS:  COMMERCIAL SUCCESS AND THE
PRESUMPTION OF VALIDITY ARISING FROM THE FACT OF ISSUANCE OF A PATENT
BY THE PATENT OFFICE. 

COMMERCIAL SUCCESS.  WHEN IT IS A CLOSE QUESTION WHETHER THE CHANGES
EMBODIED IN A LATER PATENT ARE A SUFFICIENT ADVANCE OVER EARLIER
PATENTS TO CONSTITUTE PATENTABLE INVENTION, THE MEASURE OF COMMERCIAL
SUCCESS OF THE LATER PATENT HAS BEEN RECOGNIZED BY COURTS AS AFFORDING
SOME AID IN REACHING A CONCLUSION.  BUT WHILE COMMERCIAL SUCCESS HAS
BEEN SAID TO HAVE RELEVANCE IN RESOLVING DOUBTS, SMITH V. HALL, 301
U.S. 216, 233, IT CANNOT TRANSFORM AN EXERCISE OF THE COMMON SKILL OF A
CALLING, OR AN ADAPTATION READILY SUGGESTED BY EXPERIENCE WITH PRIOR
INVENTIONS, OR AN AGGREGATION OF FAMILIAR MECHANICAL EXPEDIENTS INTO
PATENTABLE INVENTION.  CF. HILDRETH V. MASTORAS, 257 U.S. 27, 34.  AND
WHERE THE PATENT IN QUESTION REEMBODIES A PRIOR PATENT NOT YET EXPIRED,
ITS COMMERCIAL SUCCESS DOES QUITE THE REVERSE OF ESTABLISHING
PATENTABILITY; IT ESTABLISHES THE SERIOUSNESS OF THE INFRINGEMENT.  IF
THE REEMBODIED PRIOR PATENT HAS EXPIRED, OR IF IT IS OWNED BY THE OWNER
OF THE LATER PATENT, COMMERCIAL SUCCESS IS ONE INDEX OF SUCCESS IN
APPROPRIATING WHAT SHOULD HAVE BEEN AVAILABLE TO THE PUBLIC OR IN
EXTENDING SPECIAL PRIVILEGES BEYOND THE LEGALLY PERMITTED TERM. 

I HAVE ALREADY GIVEN THE REASONS WHICH CONVINCE ME THAT NO PATENTABLE
INVENTION IS SET OUT IN THE FIVE CLAIMS IN SUIT.  THE FORCE OF NONE OF
THOSE REASONS IS AFFECTED BY THE COMMERCIAL SUCCESS WHICH THE
RESPONDENT HAS REALIZED.  AFTER EXAMINING THE RECORD, I CAN FIND NO
SERIOUS DOUBTS TO BE RESOLVED.  ALL I CAN DEDUCE FROM THE COMMERCIAL
SUCCESS OF THE RESPONDENT WITH THESE MACHINES IS THE MAGNITUDE OF THE
CONSEQUENCES TO THE PUBLIC WHO HAVE HAD TO PAY FOR THE RESPONDENT'S
EXTENSION OF AN UNDESERVED MONOPOLY THROUGH THE USE OF AN INVALID
PATENT. 

EVEN IF THE ISSUE OF PATENTABLE INVENTION WERE A DOUBTFUL ONE, THE
FORCE OF DEDUCTIONS THAT MIGHT NORMALLY BE DRAWN FROM COMMERCIAL
SUCCESS IS GREATLY REDUCED IN THE CIRCUMSTANCES OF THIS CASE.  FOR, BY
VIRTUE OF ITS DOMINANT POSITION IN THE SHOE MACHINERY INDUSTRY, THE
UNITED SHOE MACHINERY CORPORATION WAS NOT SERIOUSLY THREATENED BY LOSS
OF BUSINESS TO COMPETITORS WHEN IT WITHDREW THE FIRST MCFEELY MACHINE
FROM COMMERCIAL USE.  BECAUSE THERE WAS NO COMPELLING ECONOMIC
INCENTIVE TO HASTEN THE COMMERCIAL ADAPTATION OF THE FIRST MCFEELY
MACHINE, THE INFERENCES TO BE MADE FROM ITS WITHDRAWAL ARE EXTREMELY
WEAK.  CONTROLLING THE SHOE MACHINERY BUSINESS TO THE EXTENT THAT IT
DID, THE RESPONDENT WAS ABLE TO ACCELERATE OR DELAY THE COMMERCIAL
EXPLOITATION OF ITS HEEL SEAT LASTING MACHINE AT ITS PLEASURE. 

MOREOVER, THE RECORD INDICATES THAT THE COMMERCIAL SUCCESS RELIED
UPON BY THE COURTS BELOW WOULD BE INCONCLUSIVE WITH RESPECT TO THE
SECOND MCFEELY PATENT UNDER ANY CIRCUMSTANCES.  FOR THERE IS
UNCONTROVERTED TESTIMONY THAT OF THE 1250 LATER MACHINES IN COMMERCIAL
USE ONLY 12 WERE BUILT IN ACCORDANCE WITH THE DISCLOSURES OF THE SECOND
MCFEELY PATENT.  THE REMAINDER EMBODY FEATURES SET OUT IN A SUBSEQUENT
PATENT, JORGENSEN NO. 1,852,015, OR A PRIOR PATENT, HOYT NO. 1,508,394,
(DECLARED INVALID BY THE COURT BELOW) OR BOTH.  SINCE I BELIEVE THAT
THE COMMERCIAL SUCCESS OF THE RESPONDENT'S MACHINE COULD IN NO EVENT
ESTABLISH THE VALIDITY OF THE FIVE CLAIMS IN SUIT, I DO NOT FIND IT
NECESSARY TO DETERMINE HOW MUCH OF THE COMMERCIAL SUCCESS OF THE
RESPONDENT'S MACHINES IS TO BE ATTRIBUTED TO FEATURES NOT SET OUT IN
THE SECOND MCFEELY PATENT.  SUCH A DETERMINATION DOES NOT APPEAR TO
HAVE BEEN MADE IN THE ENTIRE COURSE OF PROCEEDINGS IN THIS CASE. 

PRESUMPTION OF VALIDITY ARISING FROM ISSUANCE.  QUOTING FROM THE
OPINION OF THIS COURT IN RADIO CORP. V. RADIO LABORATORIES, 293 U.S. 1,
8, THE COURT BELOW STATED THAT THE PRESENT CASE OBLIGED IT "TO GIVE
CONSIDERATION TO THE RULE THAT 'ONE OTHERWISE AN INFRINGER WHO ASSAILS
THE VALIDITY OF A PATENT FAIR UPON ITS FACE BEARS A HEAVY BURDEN OF
PERSUASION, AND FAILS UNLESS HIS EVIDENCE HAS MORE THAN A DUBIOUS
PREPONDERANCE.'"  121 F.2D 273, 277.  FOR REASONS I HAVE ALREADY SET
OUT I CAN AGREE NEITHER THAT THE SECOND MCFEELEY IS "A PATENT FAIR UPON
ITS FACE" NOR THAT THE EVIDENCE OF NON-PATENTABILITY HAS NO MORE THAN A
"DUBIOUS PREPONDERANCE."  HENCE, THE PREREQUISITES FOR ESTABLISHING A
PRESUMPTION OF VALIDITY ARE NOT HERE PRESENT.  IN THE ABSENCE OF A
STATUTORY PRESCRIPTION TO THE CONTRARY, I SEE NO REASON FOR EXTENDING
THE PRESUMPTION OF VALIDITY ARISING FROM THE MERE ISSUANCE OF A PATENT
BEYOND THE NARROW COMPASS INDICATED BY THE PASSAGE QUOTED FROM THE
RADIO CORPORATION CASE. 

ON THE OTHER HAND, THERE ARE MANY POSITIVE REASONS FOR NOT DOING SO.
A PATENT IS A GRANT OF EXCLUSIVE PRIVILEGE.  YET IT IS NORMALLY ISSUED
IN A NON-ADVERSARY PROCEEDING.  INDEED, IT IS THE PRACTICE OF THE
PATENT OFFICE TO KEEP PATENT APPLICATIONS ON FILE IN SECRECY UNTIL THE
TIME OF ISSUANCE.  FN16  THE PUBLIC, WHO WILL BE EXCLUDED FOR 17 YEARS
FROM THE FIELD GRANTED TO THE APPLICANT, ARE REPRESENTED ONLY INSOFAR
AS THE ENORMOUS VOLUME OF BUSINESS PERMITS THE EXAMINING STAFF OF THE
PATENT OFFICE TO WATCH OUT FOR THE PUBLIC INTEREST N17.  MOREOVER, THE
PATENT EXAMINER, UNLIKE THE COURT IN AN INFRINGEMENT SUIT, DOES NOT
HAVE THE BENEFIT OF THE RESEARCHES OF OPPOSING COUNSEL UPON THE STATE
OF THE PRIOR ART. EVEN WHERE THE PATENT OFFICE CONDUCTS INTERFERENCE
PROCEEDINGS FOR THE PURPOSE OF DETERMINING PRIORITY OF INVENTION, A
CONTESTANT IS NOT PERMITTED TO PROVE THAT A STRANGER TO THE PROCEEDINGS
WAS THE FIRST INVENTOR.  HE CAN OPPOSE ONLY HIS OWN CLAIM OF PRIORITY
AGAINST THAT OF THE OTHER PARTY.  SEE LOFTIN V. SMITH, 126 F.2D 514,
515. 

WHATEVER THE SMALL WEIGHT TO BE GIVEN TO THE PRESUMPTION ARISING FROM
ISSUANCE OF A PATENT, IT IS HERE OVERCOME BY THE SPECIAL CIRCUMSTANCE
OF THIS CASE.  FOR THE PATENT IN SUIT, LIKE THE PRIOR ONE ON WHICH IT
IS ASSERTED TO HAVE MADE IMPROVEMENTS, WAS ISSUED TO THE SAME PATENTEE
AND ASSIGNED TO THE SAME OWNER.  IN THIS KIND OF SITUATION, THE BURDEN
OF ESTABLISHING THE VALIDITY OF THE SECOND PATENT IS INCREASED, THIS
COURT HAVING SAID THAT IN THIS "CLASS OF CASES IT MUST DISTINCTLY
APPEAR THAT THE INVENTION COVERED BY THE LATER PATENT WAS A SEPARATE
INVENTION, DISTINCTLY DIFFERENT AND INDEPENDENT FROM THAT COVERED BY
THE FIRST PATENT."  MILLER V. EAGLE MANUFACTURING CO., 151 U.S. 186,
198.  AT VERY BEST, THE PRESUMPTION OF VALIDITY ARISING FROM THE MERE
ISSUANCE OF A PATENT MIGHT BE PERMITTED TO TIP THE SCALE WHEN OTHER
CONSIDERATIONS LEAVE THE ISSUE OF PATENTABILITY IN EQUILIBRIUM.  IN THE
PRESENT CASE, I BELIEVE THAT THE EMPHASIS OF THE COURT BELOW ON THIS
PRESUMPTION WAS ENTIRELY MISPLACED. 

AS I VIEW THIS PATENT ITS TOTAL IMPACT IS APPALLING.  OUT OF ITS
GREAT BULK, THE RESPONDENT IS ABLE TO ASSERT ONLY THREE SIMPLE
IMPROVEMENTS EMBRACED IN FIVE CLAIMS.  AND ON EXAMINATION, IT APPEARS
THAT THESE IMPROVEMENTS FALL FAR BELOW THE ESTABLISHED REQUIREMENTS OF
PATENTABLE INVENTION.  YET BY ITS TERMS THE PATENT AS A WHOLE PURPORTS
TO APPROPRIATE FOR EXCLUSIVE USE, NOT MERELY THESE IMPROVEMENTS, BUT A
MAJOR INSTRUMENT OF PRODUCTION IN ITS ENTIRETY.  FURTHERMORE, THIS
PATENT IS ONE OF A GROUP WHICH SEEMS TO HAVE AN INTERMINABLE CAPACITY
FOR SELF-PERPETUATION.  IF JUDICIAL APPROVAL IS TO BE GIVEN TO PATENTS
OF THIS KIND, THE PUBLIC BENEFITS WHICH MIGHT REASONABLY BE HOPED FOR
UNDER THE CONSTITUTIONAL PROVISIONS AND THE FEDERAL STATUTES RELATING
TO PATENTS CAN NEVER BE ATTAINED. 

FN1  DICTIONARY OF AMERICAN BIOGRAPHY, "MATZELIGER, JAN ERNST." 

FN2  CENSUS REPORTS (12TH CENSUS, 1900), VOL. IX, PART III, 756.  ON
THE DEVELOPMENT OF THE SHOE MACHINERY INDUSTRY, SEE GANNON, SHOE
MAKING, PASSIM, AND HIS ARTICLE "SHOE INDUSTRY IN THE UNITED STATES" IN
ENCYCLOPEDIA AMERICANA; HAZARD, ORGANIZATION OF BOOT AND SHOE INDUSTRY
IN MASSACHUSETTS BEFORE 1875, PASSIM; KAEMPFFERT, A POPULAR HISTORY OF
AMERICAN INVENTION, VOL. II, 404-434; DICTIONARY OF AMERICAN BIOGRAPHY,
"GOODYEAR, CHARLES (JR.)," "MCKAY, GORDON," "MATZELIGER, JAN ERNST,"
"WINSLOW, SIDNEY WILMOT"; ENCYCLOPAEDIA OF THE SOCIAL SCIENCES,
"LEATHER INDUSTRIES," E.G., 307-309. 

FN3 CLAIM NO. 167, FOR EXAMPLE, OF THE EARLIER MCFEELY PATENT (NO.
1,129,881) SETS OUT "MEANS TO ADJUST THE BACK STOP FOR SHOES OF
DIFFERENT SIZES INCLUDING PROVISION FOR INDICATING THE CORRECT
ADJUSTMENT FOR PARTICULAR SIZES." 

FN4  SEE WESTINGHOUSE V. BOYDEN POWER BRAKE CO., 170 U.S. 537, 561
562. 

FN5  TELEPHONE CASES, 126 U.S. 1, 4-14. 

FN6  CLAIM 42 PROVIDES:  "A MACHINE OF THE CLASS DESCRIBED HAVING, IN
COMBINATION, CLAMPING MEANS TO EMBRACE ONE END OF A LAST AND SHOE, END
WIPERS POSITIONED TO OPERATE ON THE EDGES OF THE UPPER AT SAID END OF
THE SHOE, A HOLD-DOWN MOUNTED FOR VERTICAL MOVEMENT AND POSITIONED TO
ENGAGE THE BOTTOM OF THE LAST AND SHOE, A SUPPORT FOR A LAST AND SHOE
CONSTRUCTED AND ARRANGED FOR MANUALLY EFFECTED MOVEMENT TO ENGAGE THE
LAST AND SHOE WITH SAID CLAMPING MEANS AND HOLD-DOWN, POWER OPERATED
MECHANISM EFFECTIVE TO MOVE SAID SUPPORT FORCIBLY TO PRESS THE LAST AND
SHOE AGAINST SAID CLAMPING MEANS AND HOLD-DOWN AND TO ACTUATE THE
CLAMPING MEANS, MECHANISM EFFECTIVE IN TIMED RELATION TO THE CLAMPING
MEANS TO DEPRESS THE HOLD-DOWN AND SUPPORT TO POSITION THE SHOE BOTTOM
DETERMINATELY BELOW THE PLANE OF THE WIPERS, MECHANISM OPERATIVE TO
ACTUATE THE WIPERS TO BREAK DOWN THE EDGE OF THE UPPER OVER THE BOTTOM
OF THE POSITIONED LAST AND SHOE, THE SAID HOLD-DOWN MECHANISM BEING
AUTOMATICALLY OPERATIVE SUBSEQUENTLY DETERMINATELY TO RAISE THE HOLD
DOWN, THE SAID POWER OPERATED MECHANISM BEING OPERATIVE SUBSTANTIALLY
COINCIDENTLY CORRESPONDINGLY TO RAISE THE SAID SUPPORT TO ENGAGE THE
BOTTOM OF THE LAST AND SHOE WITH SAID HOLD-DOWN WITH THE SHOE BOTTOM
POSITIONED SUBSTANTIALLY IN THE PLANE OF THE WIPERS, AND THE END WIPER
MECHANISM BEING SUBSEQUENTLY OPERATIVE IN TIMED RELATION TO WIPE OVER
AND COMPACT THE BROKEN DOWN EDGE OF THE UPPER OVER THE BOTTOM OF THE
LAST AND SHOE, AND MANUALLY ADJUSTABLE MEANS FOR DETERMINATELY VARYING
THE AMOUNT OF VERTICAL MOVEMENT OF THE HOLD-DOWN." 

FN7  CLAIM 55 IS ILLUSTRATIVE.  IT PROVIDES:  "A HEEL SEAT LASTING
MACHINE HAVING, IN COMBINATION, CLAMPING MEANS TO EMBRACE THE HEEL END
OF A SHOE, WIPERS TO OPERATE UPON THE UPSTANDING EDGES OF THE UPPER AT
THE CLAMPED END OF THE SHOE, MEANS TO SUPPORT A LAST AND SHOE IN
INVERTED POSITION, MEANS TO RAISE SAID SUPPORT TO POSITION THE LAST AND
SHOE FOR CO-OPERATION WITH THE CLAMPING MEANS WITH THE BOTTOM OF THE
SHOE ABOVE THE OPERATING PLANE OF THE WIPERS, MEANS TO OPERATE THE
CLAMPING MEANS TO EMBRACE THE HEEL END OF THE POSITIONED SHOE,
MECHANISM OPERATIVE DETERMINATELY TO DEPRESS SAID LAST AND SHOE SUPPORT
RELATIVELY TO THE CLAMPING MEANS TO UPWIPE THE UPPER OVER THE SIDES OF
THE LAST AND TO POSITION THE SHOE WITH ITS BOTTOM IN A PLANE
DETERMINATELY BELOW THE OPERATING PLANE OF THE WIPERS WITH THE UPPER
EDGES IN SAID OPERATING PLANE, AND MEANS SUBSEQUENTLY TO OPERATE SAID
WIPERS IN TIMED RELATION TO THE SHOE SUPPORT TO BREAK DOWN THE
UPSTANDING EDGES OF THE UPPER OVER THE HEEL SEAT, SAID SUPPORT
OPERATING MECHANISM BEING SUBSEQUENTLY EFFECTIVE IN TIMED RELATION
DETERMINATELY TO RAISE SAID SUPPORT AND SHOE TO POSITION THE SHOE
BOTTOM IN THE OPERATING PLANE OF THE WIPERS, AND SAID WIPER OPERATING
MEANS BEING SUBSEQUENTLY EFFECTIVE IN TIMED RELATION TO OPERATE THE
WIPERS TO WIPE DOWN AND COMPACT OVER THE HEEL SEAT THE BROKEN DOWN
EDGES OF THE UPPER." 

FN8  CLAIM 39 PURPORTS TO COVER "AN END LASTING MECHANISM," BUT IT,
TOO, ATTEMPTS TO RECLAIM VARIOUS OLD ELEMENTS. 

FN9  CLAIM 84 IS ILLUSTRATIVE.  IT PROVIDES:  "IN A MACHINE OF THE
CLASS DESCRIBED, THE COMBINATION WITH LAST AND SHOE POSITIONING MEANS,
OF END EMBRACING WIPERS, OPERATING MEANS FOR SAID WIPERS INCLUDING
PARTS MOVABLE TO EFFECT A PRELIMINARY ADJUSTMENT OF THE WIPERS TO THE
CONTOUR OF THE SHOE WHILE OTHER PORTIONS OF SAID OPERATING MEANS ARE
STATIONARY, AND TACKERS MOVABLE INWARDLY OVER THE SHOE AND CONNECTED TO
SAID WIPERS FOR PRELIMINARY ADJUSTMENT WITH THEM."    FN10  E.G., A
"MEMORANDUM OF POLICY" FROM THE FILES OF AN INDUSTRIAL CORPORATION, SET
OUT IN THE TNEC HEARINGS, CONTAINS THE FOLLOWING GUIDANCE FOR THE
CORPORATION'S PATENT DIVISION: 

"CONTINUING THE MONOPOLY BY US OR OTHERS 

"IT OFTEN HAPPENS THAT IF MINOR IMPROVEMENTS ARE PROTECTED BY
PATENTS, MACHINES AND PROCESSES LICENSED UNDER THE ORIGINAL BASIC
PATENTS ARE GIVEN A MUCH LONGER EARNING LIFE BY THE FACT THAT THE MINOR
IMPROVEMENTS CONTINUE THE PROTECTION ON THE MACHINES, AND EVEN WHEN THE
BASIC PATENTS EXPIRE, OTHERS ARE PREVENTED FROM USING THE LATEST
COMMERCIAL FORM OF THE MACHINE.    "EXAMPLE:  THE  ...  BASIC PATENTS
EXPIRED SEVERAL YEARS AGO.  NOBODY, HOWEVER, DARE USE THE PRESENT TYPE
OF  ...  MACHINE BECAUSE OF IMPROVEMENTS COVERED BY MINOR PATENTS. 
LIKEWISE, IF THE ORIGINAL PATENT PROTECTION OBTAINED ON PARTICULAR
MACHINES SHOULD NOT BE SUSTAINED BY THE COURTS, YET A SECOND LINE OF
DEFENSE PATENTS COVERING DETAILS AND IMPROVEMENTS MAY BECOME A MOST
VALUABLE ASSET. 

"IT HAS ALWAYS BEEN OUR AMBITION TO OBTAIN PATENTS WHICH WILL BE
RELATED TO FURNACE, MELTING AND REFINING, FEEDING, DELIVERY, FORMING,
AUTOMATIC HANDLING, CARRYING, STACKING AND ANNEALING.  CONCEIVABLY WE
MIGHT LOSE PATENT DOMINATION OF ONE OR MORE IMPORTANT LINKS, BUT STILL
RETAIN PRACTICAL CONTROL OF THE WHOLE CHAIN BY MEANS OF CONTROLLING THE
MOST EFFICIENT FORM OF THE OTHER LINKS."  TNEC HEARINGS, PART 2, 777
778. 

CF. TNEC MONOGRAPH NO. 31, 160:  "A PATENT PROVIDES A SANCTION BUT IT
IS ABOUT TO EXPIRE - BY SOME MEANS OR OTHER ITS LIFE MUST BE
PROLONGED.  AN IMPROVEMENT ALONE IS HARDLY ENOUGH; ITS IMPORTANCE MUST
BE MAGNIFIED UNTIL THE LINE BETWEEN INVENTION AND IMPROVEMENT IS
COMPLETELY BLURRED.  A MULTIPLICATION OF IMPROVEMENTS IS FAR BETTER; IT
CREATES AT LEAST AN APPEARANCE THAT AN INDUSTRIAL ART IS BEING
TRANSFORMED." 

FN11  JORGENSEN NO. 1,852,015, ISSUED IN 1932 AND ASSIGNED TO THE
RESPONDENT, PURPORTS TO COVER IMPROVEMENTS ON A MACHINE FOR SHAPING
SHOE UPPERS "OVER LASTS OR OTHER FORMS."  IT STATES THAT THE INVENTION
"IS HEREIN ILLUSTRATED AS EMBODIED IN A MACHINE FOR LASTING THE HEEL
ENDS OF SHOES, BUT IT IS TO BE UNDERSTOOD THAT IN ITS MORE GENERAL
ASPECTS IT IS NOT LIMITED TO HEEL-END-LASTING MACHINES." 

FN12  THE PETITIONER'S APPLICATION FOR CERTIORARI CLEARLY RAISES THIS
ISSUE.  ONE OF THE REASONS WE BROUGHT THE CASE HERE WAS THE OPPORTUNITY
IT WOULD AFFORD TO CONSIDER THE PETITIONER'S CONTENTION THAT THE SECOND
MCFEELY "MERELY AGGREGATES OLD ADJUSTING FEATURES WITH AN OLD
COMBINATION  ...  IN CONFLICT WITH THE PRINCIPLES APPLIED IN SUCH CASES
AS GRINNELL V. JOHNSON CO., 247 U.S. 426." 

FN13  GRINNELL WASHING MACH. CO. V. JOHNSON CO., 247 U.S. 426, 434;
OFFICE SPECIALTY MFG. CO. V. FENTON MFG. CO., 174 U.S. 492, 498;
ALTOONA THEATRES V. TRI-ERGON CORP., 294 U.S. 477, 486; AMERICAN ROAD
MACH. CO. V. PENNOCK & SHARP CO., 164 U.S. 26, 41. 

FN14  THE FOLLOWING EXCERPT FROM THE SPECIFICATIONS OF THE EARLIER
MCFEELY IS ILLUSTRATIVE:  "IN FIG. 18 THE BACK STOP IS SHOWN AS FORMED
ON A RACK BAR ADJUSTABLE BY A SHAFT 690 HAVING A HANDLE AT THE SIDE OF
THE MACHINE WITH A PAWL IN IT TO ENGAGE A LOCKING RATCHET 691 HAVING
MARKED ON IT GRADUATIONS INDICATING THE PROPER ADJUSTMENT FOR DIFFERENT
SIZES.  THE RATCHET CAN BE ADJUSTED TO POSITION THE GRADUATIONS FOR
DIFFERENT GROUPS OF SIZES SUCH AS MEN'S, WOMEN'S OR CHILDREN'S SIZES." 
AND THE FIRST CLAIM SETS OUT "MEANS FOR FIXING THE GRIPPER IN DIFFERENT
POSITIONS OF ADJUSTMENT BOTH VERTICALLY AND HORIZONTALLY RELATIVELY TO
THE LAST SPINDLE FOR LASTS OF DIFFERENT HEIGHTS AND LENGTHS." 

FN15  SEE DISCUSSION OF THE INVALIDITY OF THIS CLAIM (NO. 42) AT PP.
377-378, SUPRA. 

FN16  RULE NO. 15, RULES OF PRACTICE, UNITED STATES PATENT OFFICE. 

FN17  SEE REPORT OF SCIENCE ADVISORY BOARD, SET OUT IN TNEC HEARINGS,
PART 3, 1139, 1140. 
..END :











MAGRUDER V. SUPPLEE, 316 U.S. 394 


NO. 947.  ARGUED APRIL 30, 1942.  - DECIDED MAY 25, 1942.  - 123 F.2D
399, REVERSED. 


WHERE, IN A SALE OF REAL ESTATE, CURRENT TAXES, WHICH ARE A LIEN ON
THE PROPERTY AND FOR WHICH THE VENDOR IS PERSONALLY LIABLE UNDER THE
STATE LAW, ARE APPORTIONED, SO THAT THE VENDEE PAYS THE PART
PROPORTIONAL TO THE FRACTION OF THE TAX YEAR ENSUING AFTER THE
PURCHASE, THE PAYMENT IS NOT DEDUCTIBLE BY THE VENDEE IN HIS INCOME TAX
RETURN AS "TAXES PAID" WITHIN THE MEANING OF SEC. 23(C) OF THE REVENUE
ACT OF 1936, BUT IS PART OF THE PURCHASE PRICE.  P. 397. 

MAGRUDER, COLLECTOR OF INTERNAL REVENUE, V. SUPPLEE ET UX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH DISTRICT. 

CERTIORARI, 315 U.S. 794, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
A REFUND OF INCOME TAXES, 36 F.SUPP.  722. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

DURING THE YEARS 1936 AND 1937, RESPONDENTS PURCHASED VARIOUS PARCELS
OF REAL ESTATE IN BALTIMORE, MARYLAND.  IN EACH INSTANCE, THE STATE AND
CITY TAXES ON THE REAL ESTATE FOR THE CURRENT YEAR HAD NOT BEEN PAID AT
THE TIME OF PURCHASE.  THE VARIOUS CONTRACTS PROVIDED FOR THE
APPORTIONMENT OF THESE CURRENT REAL ESTATE TAXES, RESPONDENTS AGREEING
TO PAY THE AMOUNT OF THE TAXES, AND THE VENDORS UNDERTAKING TO BEAR THE
BURDEN OF THAT PORTION OF THE TAXES ARITHMETICALLY ALLOCABLE TO THE
FRACTION OF THE YEAR THAT HAD EXPIRED PRIOR TO THE DATE OF PURCHASE. 
ADJUSTMENTS WERE ACCORDINGLY MADE IN THE PURCHASE PRICES TO REFLECT
THIS ARRANGEMENT. 

RESPONDENTS PAID THE LOCAL AUTHORITIES THE FULL AMOUNTS NECESSARY TO
DISCHARGE THE TAX LIABILITY.  IN THEIR 1936 AND 1937 INCOME TAX
RETURNS, WHICH WERE ON THE CASH BASIS, THEY DEDUCTED THAT PORTION OF
THOSE TAXES "ALLOCABLE" TO THE PERIODS AFTER PURCHASE.  THE
COMMISSIONER OF INTERNAL REVENUE RULED THAT THE AMOUNTS IN QUESTION
WERE NOT DEDUCTIBLE UNDER SEC. 23(C) OF THE REVENUE ACT OF 1936, 49
STAT. 1648, 1659,  FN1  BUT INSTEAD WERE MERELY PART OF THE COST OF THE
PROPERTIES.  ACCORDINGLY, HE MADE A DEFICIENCY ASSESSMENT WHICH WAS
PAID UNDER PROTEST.  THIS SUIT FOR REFUND FOLLOWED.  THE DISTRICT COURT
HELD THE AMOUNTS WERE DEDUCTIBLE,  FN2  AND THE CIRCUIT COURT OF
APPEALS AFFIRMED  FN3  ON THE AUTHORITY OF ITS PREVIOUS DECISION IN
COMMISSIONER V. RUST'S ESTATE, 116 F.2D 636.  WE GRANTED CERTIORARI
BECAUSE OF AN ASSERTED CONFLICT WITH LIFSON V. COMMISSIONER, 98 F.2D
508. 

THE QUESTION FOR DECISION IS WHETHER THE AMOUNTS APPORTIONED BY
RESPONDENTS ON THE BASIS OF THE FRACTIONS OF THE TAXABLE YEARS
REMAINING AFTER THE SEVERAL PURCHASES CONSTITUTE "TAXES PAID WITHIN THE
TAXABLE YEAR" WITHIN THE MEANING OF SEC. 23(C) OF THE REVENUE ACT OF
1936, 49 STAT. 1648, 1659, AND HENCE ARE DEDUCTIBLE. 

THE GUIDING PRINCIPLE FOR DETERMINING WHETHER A PAYMENT SATISFYING A
TAX LIABILITY IS A "TAX PAID" WITHIN THE MEANING OF SEC. 23(C) IS
FURNISHED BY THE APPLICABLE TREASURY REGULATION, WHICH STATES THAT "IN
GENERAL TAXES ARE DEDUCTIBLE ONLY BY THE PERSON UPON WHOM THEY ARE
IMPOSED."  FN4 SEE COLSTON V. BURNET, 61 APP. D.C. 192, 59 F.2D 867;
SMALL V. COMMISSIONER, 27 B.T.A. 1219; PAUL, SELECTED STUDIES IN
FEDERAL TAXATION, SECOND SERIES, P. 24.  RESORT MUST BE HAD HERE TO THE
LAWS OF MARYLAND AND OF THE CITY OF BALTIMORE TO DETERMINE UPON WHOM
THE STATE AND CITY REAL ESTATE TAXES WERE IMPOSED.  WALSH-MCGUIRE CO.
V. COMMISSIONER, 97 F.2D 983, 984; CF. HELVERING V. FULLER, 310 U.S.
69, 74-75; AND SEE PAUL, OP. CIT. SUPRA, PP. 23-24. 

TO ILLUSTRATE CONCRETELY THE WORKINGS OF THE MARYLAND TAX SYSTEM WITH
RESPECT TO RESPONDENTS' PURCHASES, THE PROPERTY BOUGHT ON MAY 10, 1936,
MAY BE TAKEN AS TYPICAL OF ALL THE OTHER TRANSACTIONS.  THE ASSESSMENT
DATE, OR "DATE OF FINALITY," FOR BOTH STATE AND CITY TAXES WAS OCTOBER
1, 1935.  FN5  THESE TAXES WERE FOR THE CALENDAR YEAR 1936  FN6  AND
BECAME DUE AND PAYABLE ON JANUARY 1, 1936,  FN7  ALTHOUGH THE DEFAULT
DATE FOR CITY TAXES WAS NOT UNTIL JULY 1, 1936, AND FOR STATE TAXES
JANUARY 1, 1937.  FN8  BOTH THE STATE AND THE CITY HAD LIENS AGAINST
THE PROPERTY FROM THE DUE DATE, JANUARY 1, 1936.  FN9  AND,
RESPONDENTS' VENDOR BECAME PERSONALLY LIABLE FOR THESE TAXES BEFORE THE
SALE.  AN ACTION OF ASSUMPSIT COULD HAVE BEEN BROUGHT AGAINST HIM FOR
THE TAXES AT ANY TIME AFTER THE DUE DATE.  FN10  HAD HE SOLD THE
PROPERTY BETWEEN OCTOBER 1, 1935 AND JANUARY 1, 1936, HE APPARENTLY
WOULD STILL HAVE REMAINED PERSONALLY LIABLE, AND IF HE HAD GONE INTO
BANKRUPTCY AFTER SUCH SALE THE TAXING AUTHORITIES WOULD HAVE HAD A
PROVABLE CLAIM AGAINST HIM.  IN RE WELLS, 4 F.SUPP.  329; CF. BALTIMORE
V. PERRIN, 178 MD. 101, 107, 12 A.2D 261. 

IT IS THUS APPARENT THAT TAX LIENS HAD ATTACHED AGAINST THE
PROPERTIES AND THAT RESPONDENTS' PREDECESSORS IN TITLE HAD BECOME
PERSONALLY LIABLE FOR THE TAXES PRIOR TO ANY OF THE PURCHASES.  THE
ATTACHMENT OF A LIEN FOR TAXES AGAINST PROPERTY BEFORE ITS SALE HAS
BEEN HELD TO PROHIBIT THE VENDEE FROM DEDUCTING, AS "TAXES PAID,"
AMOUNTS PAID BY HIM TO DISCHARGE THIS LIABILITY.  LIFSON V.
COMMISSIONER, 98 F.2D 508; WALSH-MCGUIRE CO. V. COMMISSIONER, 97 F.2D
983; MERCHANTS BANK BLDG. CO. V. HELVERING, 84 F.2D 478; HELVERING V.
MISSOURI STATE LIFE INS. CO., 78 F.2D 778, 781.  A TAX LIEN IS AN
ENCUMBRANCE UPON THE LAND, AND PAYMENT, SUBSEQUENT TO PURCHASE, TO
DISCHARGE A PREEXISTING LIEN IS NO MORE THE PAYMENT OF A TAX IN ANY
PROPER SENSE OF THE WORD THAN IS A PAYMENT TO DISCHARGE ANY OTHER
ENCUMBRANCE, FOR INSTANCE A MORTGAGE.  IT IS TRUE THAT RESPONDENTS HERE
COULD NOT HAVE RETAINED THE PROPERTIES UNLESS THE TAXES WERE PAID, BUT
IT IS ALSO TRUE THAT THEY COULD NOT RETAIN THEM WITHOUT PAYING THE
PURCHASE PRICE.  IT IS NO ANSWER THEREFORE TO SAY THAT THE PROPERTY WAS
BURDENED WITH THE TAXES AND THAT RESPONDENTS BECAME OBLIGATED TO PAY
THEM.  THERE WAS A BURDEN, BUT IT WAS CONTRACTUALLY ASSUMED.  IN
DISCHARGING THIS ASSUMED OBLIGATION RESPONDENTS WERE NOT PAYING TAXES
IMPOSED UPON THEM WITHIN THE MEANING OF SEC. 23(C).  FOR "ONLY THE
PERSON OWNING THE PROPERTY AT THAT TIME (I.E., WHEN THE TAX LIEN
ATTACHES) IS SUBJECTED TO THE BURDEN WHICH THE LAW IMPOSES; AND ONLY
THE PERSON WHO HAS BEEN THUS SUBJECTED TO THE BURDEN OF THE TAX IS
ENTITLED TO A DEDUCTION FOR PAYING IT.  PAYMENT BY A SUBSEQUENT
PURCHASER IS NOT THE DISCHARGE OF A BURDEN WHICH THE LAW HAS PLACED
UPON HIM, BUT IS ACTUALLY AS WELL AS THEORETICALLY A PAYMENT OF
PURCHASE PRICE; FOR, AFTER THE LIEN ATTACHES AND THE TAXING AUTHORITY
BECOMES PRO TANTO AN OWNER OF AN INTEREST IN THE PROPERTY, PAYMENT OF
THE TAX BY A PURCHASER IS NOTHING BUT A PART OF THE PAYMENT FOR
UNENCUMBERED TITLE."  JUDGE PARKER, DISSENTING IN COMMISSIONER V.
RUST'S ESTATE, 116 F.2D 636, 641. 

FURTHERMORE, RESPONDENTS PAID TAXES FOR WHICH THEIR VENDORS WERE
PERSONALLY LIABLE.  THIS WAS CLEARLY THE PAYMENT OF A TAX IMPOSED UPON
ANOTHER AND THEREFORE NOT DEDUCTIBLE BY RESPONDENTS.  CF. WALSH-MCGUIRE
CO. V. COMMISSIONER, 97 F.2D 983; GATENS INVESTMENT CO. V.
COMMISSIONER, 36 B.T.A. 309; KOHLSAAT V. COMMISSIONER, 40 B.T.A. 528. 
AND SEE COMMISSIONER V. COWARD, 110 F.2D 725, 727. 

THUS EITHER A PRE-EXISTING TAX LIEN OR PERSONAL LIABILITY FOR THE
TAXES ON THE PART OF A VENDOR IS SUFFICIENT TO FORECLOSE A SUBSEQUENT
PURCHASER, WHO PAYS THE AMOUNT NECESSARY TO DISCHARGE THE TAX
LIABILITY, FROM DEDUCTING SUCH PAYMENT AS A "TAX PAID."  WHERE BOTH
LIEN AND PERSONAL LIABILITY COINCIDE, AS HERE, THERE CAN BE NO OTHER
CONCLUSION THAN THAT THE TAXES WERE IMPOSED ON THE VENDORS. 
RESPONDENTS SIMPLY PAID THEIR VENDORS' TAXES; THEY CANNOT DEDUCT THE
AMOUNTS, OR ANY PORTION THEREOF, PAID TO DISCHARGE LIABILITIES SO
FIRMLY FIXED AGAINST THEIR PREDECESSORS IN TITLE BY THE LAWS OF
MARYLAND. 

THE VIEW OF THE COURT BELOW THAT THE PARTIES' CONTRACTUAL ARRANGEMENT
FOR APPORTIONMENT OF THE TAX BURDEN WAS CONTROLLING IS UNTENABLE.  FN11
PARTIES CANNOT CHANGE THE INCIDENCE OF LOCAL TAXES BY THEIR
AGREEMENT.  AND IT IS MISLEADING TO SPEAK OF REAL ESTATE TAXES AS
"APPLICABLE" TO THE FRACTIONAL PART OF A TAX PERIOD FOLLOWING
PURCHASE.  SUCH TAXES ARE SIMPLY ONE FORM OF RAISING REVENUE FOR THE
SUPPORT OF GOVERNMENT.  THEY ARE NOT LIKE RENT, NOR ARE THEY PAID FOR
THE PRIVILEGE OF OCCUPYING PROPERTY FOR ANY GIVEN PERIOD OF TIME. 

THE JUDGMENT BELOW IS REVERSED. 

FN1  "SEC.  23.  DEDUCTIONS FROM GROSS INCOME. 

IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     .         .         .         .         . 

(C)  TAXES GENERALLY.  - TAXES PAID OR ACCRUED WITHIN THE TAXABLE
YEAR,  ..." 

FN2  36 F.SUPP.  722. 

FN3  123 F.2D 399. 

FN4  ARTICLE 23(C)-1 OF TREASURY REGULATIONS 94, PROMULGATED UNDER
THE REVENUE ACT OF 1936.  THIS IS A REGULATION OF LONG STANDING.  SEE
TREASURY REGULATIONS 86, PROMULGATED UNDER THE REVENUE ACT OF 1934,
ARTICLE 23(C)-1; TREASURY REGULATIONS 77, PROMULGATED UNDER THE REVENUE
ACT OF 1932, ARTICLE 151; TREASURY REGULATIONS 74, PROMULGATED UNDER
THE REVENUE ACT OF 1928, ARTICLE 151; TREASURY REGULATIONS 69,
PROMULGATED UNDER THE REVENUE ACT OF 1926, ARTICLE 131; TREASURY
REGULATIONS 65, PROMULGATED UNDER THE REVENUE ACT OF 1924, ARTICLE
131. 

FN5  ANN. CODE OF MARYLAND (FLACK, 1939), VOL. 2, ART. 81, SEC.
26(B), PROVIDES THAT STATE AND LOCAL TAXES SHALL HAVE THE SAME DATE OF
FINALITY AS IS PROVIDED BY LOCAL LAW, AND THE DATE OF FINALITY FOR
BALTIMORE WITH RESPECT TO ANY TAX YEAR IS OCTOBER 1 OF THE PRECEDING
YEAR.  SEE CODE, PUBLIC LOCAL LAWS OF MARYLAND (FLACK, 1930), ART. 4,
SEC. 40. 

FN6  TAXES ARE IMPOSED ANNUALLY ON A CALENDAR YEAR BASIS.  SEE ANN.
CODE OF MARYLAND (FLACK, 1939), VOL. 2, ART. 81, SEC. 26(A) AND (B);
CODE, PUBLIC LOCAL LAWS OF MARYLAND (FLACK, 1930), ART. 4, SEC. 40. 

FN7  SEE ANN. CODE OF MARYLAND (FLACK, 1939), VOL. 2, ART. 81, SEC.
46(B), WHICH PROVIDES THAT STATE TAXES ARE PAYABLE ON JANUARY 1.  SEC.
46(A) PROVIDES THAT LOCAL TAXES SHALL BE PAYABLE IN ACCORDANCE WITH
LOCAL LAW, AND UNDER LOCAL LAW BALTIMORE TAXES ARE DUE ON JANUARY 1. 
CODE, PUBLIC LOCAL LAWS OF MARYLAND (FLACK, 1930), ART. 4, SEC. 40. 

FN8  CODE, PUBLIC LOCAL LAWS OF MARYLAND (FLACK, 1930), NO. 4, SEC.
40; ANN. CODE OF MARYLAND (FLACK, 1939), VOL. 2, ART. 81, SEC. 74. 

FN9  ANN. CODE OF MARYLAND (FLACK, 1939), VOL. 2, ART. 81, SEC. 72. 

FN10  ANN. CODE OF MARYLAND (FLACK, 1939), VOL. 2, ART. 81, SEC.
154.  SEE COUNTY COMMISSIONERS V. CLAGETT, 31 MD. 210; BASSETT V. OCEAN
CITY, 118 MD. 114, 119, 84 A. 262; FREE V. GREENE, 175 MD. 36, 41, 199
A. 857. 

FN11  THE OPINION BELOW WAS A PER CURIAM AFFIRMANCE ON THE AUTHORITY
OF COMMISSIONER V. RUST'S ESTATE, 116 F.2D 636.  THE COURT THERE RELIED
ON THE FACT THAT THE PARTIES HAD AGREED TO APPORTION THE TAX
OBLIGATION.  P. 640. 
..END :






U.S. V. UNIVIS LENS CO., 316 U.S. 241 


NO. 855.  ARGUED APRIL 9, 10, 1942.  - DECIDED MAY 11, 1942.  - NO. 855,
REVERSED.  - NO. 856, AFFIRMED. 


1.  THE FACTS ESTABLISH VENUE FOR THIS SUIT IN THE DISTRICT COURT IN
WHICH IT WAS BROUGHT.  P. 246. 

2.  SALE BY A PATENT-OWNER OF AN ARTICLE WHICH IS CAPABLE OF USE ONLY
IN PRACTICING THE PATENT IS A RELINQUISHMENT OF THE PATENT MONOPOLY
WITH RESPECT TO THAT ARTICLE.  P. 249. 

3.  A PATENT DOES NOT CONFER THE RIGHT TO CONTROL THE RESALE PRICES
OF THE PATENTED ARTICLES AFTER THEIR SALE BY THE PATENTEE.  P. 250. 

4.  THE OWNER OF A PATENT COVERING LENS BLANKS (CAPABLE OF USE ONLY
IN MANUFACTURING EYE GLASS LENSES) AND ALSO (AS WAS ASSUMED IN THIS
CASE) COVERING THE PROCESS OF GRINDING AND POLISHING THEM, BY WHICH THE
BLANKS ARE CONVERTED INTO FINISHED LENSES FOR USE AS EYE GLASSES,
DEVISED A LICENSING AND PRICE-FIXING SYSTEM, PURSUANT TO WHICH, FOR A
STIPULATED ROYALTY, ONE LICENSEE WAS AUTHORIZED TO MAKE THE BLANKS AND
SELL THEM TO OTHER LICENSEES, WHO IN TURN WERE AUTHORIZED TO BUY THEM
FROM THE MAKER AT PRICES FIXED AND TO FINISH THEM AS LENSES ACCORDING
TO THE PATENT AND TO SELL THE LENSES TO OTHER LICENSEES, WHO WERE
AUTHORIZED TO SELL THEM TO THE PUBLIC - THE PRICES IN ALL CASES BEING
THOSE FIXED BY THE PATENT OWNER.  THE REWARDS OF THE PATENT OWNER AND
THE MANUFACTURER OF THE BLANKS FOR THE EXPLOITATION OF THE PATENT AND
THE PATENTED LENSES WERE DERIVED WHOLLY FROM THE PROCEEDS OF SALES OF
THE BLANKS BY THE MANUFACTURER, FROM WHICH PROCEEDS THE ROYALTY WAS
PAID.  HELD: 

(1)  THAT, WITH THE SALE OF THE LENS BLANKS FOR USE IN MANUFACTURING
LENSES, THE PATENT-OWNER CONFERRED ON THE BUYER THE RIGHT TO PRACTICE
THE PATENT WITH RESPECT TO THE BLANKS AND PARTED WITH THE RIGHT TO
ASSERT ITS PATENT MONOPOLY WITH RESPECT TO THEM, AND COULD NO LONGER
CONTROL THE PRICE AT WHICH THEY MIGHT BE SOLD IN THEIR UNFINISHED, OR
THEIR FINISHED, FORMS.  P. 250. 

(2)  THE STIPULATIONS FOR MAINTENANCE OF PRICES DERIVED NO SUPPORT
FROM THE PATENT AND MUST STAND ON THE SAME FOOTING UNDER THE SHERMAN
ACT AS LIKE STIPULATIONS WITH RESPECT TO UNPATENTED COMMODITIES.  P.
251. 

5.  AGREEMENTS FOR MAINTAINING PRICES OF GOODS IN INTERSTATE
COMMERCE, INCLUDING RESTRICTIONS IMPOSED BY THE SELLER UPON RESALE
PRICES, HELD UNREASONABLE RESTRAINTS WITHIN THE MEANING OF THE SHERMAN
ACT.  P. 252. 

6.  THE MILLER-TYDINGS ACT CAN NOT BE SO APPLIED TO PRODUCTS
MANUFACTURED IN SUCCESSIVE STAGES BY DIFFERENT PROCESSORS THAT THE
FIRST PROCESSOR MAY CONTROL THE PRICES OF HIS SUCCESSORS.  P. 253. 

7.  FEATURES OF A LICENSING SYSTEM, WHICH, BY THEMSELVES, MIGHT BE
LAWFUL, BUT WHICH ARE CLOSELY IDENTIFIED AND INTERWOVEN WITH A SCHEME
OF PRICE RESTRICTIONS VIOLATIVE OF THE SHERMAN ACT, WILL BE SUPPRESSED
WITH THE SCHEME AS A WHOLE.  P. 254. 

UNITED STATES V. UNIVIS LENS CO., INC. ET AL.* 

*TOGETHER WITH NO. 856, UNIVIS LENS CO., INC. ET AL. V. UNITED
STATES, ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL AND CROSS-APPEAL FROM A DECREE OF THE DISTRICT COURT WHICH
GRANTED IN PART, AND IN PART REFUSED, RELIEF SOUGHT BY THE GOVERNMENT
IN A SUIT UNDER THE SHERMAN ACT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THESE CASES COME HERE ON DIRECT APPEAL AND CROSS APPEAL FROM A
JUDGMENT OF THE DISTRICT COURT GRANTING IN PART AND DENYING IN PART THE
GOVERNMENT'S PRAYER FOR AN INJUNCTION RESTRAINING VIOLATIONS OF SECS. 1
AND 3 OF THE SHERMAN ACT, 15 U.S.C. SECS. 1, 3, WHICH MAKE UNLAWFUL ANY
CONTRACT, COMBINATION OR CONSPIRACY IN RESTRAINT OF TRADE OR COMMERCE
AMONG THE STATES.  THE PRINCIPAL QUESTIONS FOR DECISION ARE: 

FIRST:  WHETHER THE SYSTEM ESTABLISHED AND MAINTAINED BY THE UNIVIS
CORPORATION, APPELLEE AND CROSS APPELLANT, FOR LICENSING THE
MANUFACTURE AND SALE OF PATENTED MULTIFOCAL EYEGLASS LENSES IS EXCLUDED
BY THE PATENT MONOPOLY FROM THE OPERATION OF THE SHERMAN ACT. 

SECOND:  WHETHER IF NOT SO EXCLUDED THE RESALE PRICE PROVISIONS OF
THE LICENSING SYSTEM ARE WITHIN THE PROHIBITION OF THE SHERMAN ACT AND
NOT EXEMPTED FROM IT BY THE PROVISIONS OF THE MILLER-TYDINGS ACT
AMENDMENT OF SEC. 1 OF THE SHERMAN ACT, 50 STAT. 693. 

APPELLEE, UNIVIS LENS COMPANY, WAS THE OWNER OF A NUMBER OF PATENTS
AND TWO TRADEMARKS RELATING TO MULTIFOCAL LENSES.  IN 1931 IT ORGANIZED
APPELLEE, UNIVIS CORPORATION.  THE LENS COMPANY THEN ACQUIRED AND NOW
HOLDS A MAJORITY OF THE STOCK OF THE CORPORATION.  THE INDIVIDUAL
APPELLEES ARE THE PRINCIPAL STOCKHOLDERS OF THE LENS COMPANY.  THEY ARE
STOCKHOLDERS IN THE CORPORATION AND ARE THE PRINCIPAL OFFICERS OF BOTH
CORPORATIONS, WHICH MAY FOR THE PURPOSES OF THIS SUIT BE TREATED AS
THOUGH THEY WERE A SINGLE CORPORATION.  UPON THE ORGANIZATION OF THE
CORPORATION, THE LENS COMPANY TRANSFERRED TO IT ALL ITS INTEREST IN THE
PATENTS AND TRADEMARKS PRESENTLY INVOLVED, AND THE CORPORATION THEN
PROCEEDED TO SET UP AND HAS SINCE MAINTAINED THE LICENSING SYSTEM WHICH
THE GOVERNMENT NOW ASSAILS. 

THE RELEVANT FEATURES OF THE SYSTEM ARE AS FOLLOWS:  THE CORPORATION
LICENSES THE LENS COMPANY TO MANUFACTURE LENS BLANKS AND TO SELL THEM
TO DESIGNATED LICENSEES OF THE CORPORATION, UPON THE LENS COMPANY'S
PAYMENT TO THE CORPORATION OF AN AGREED ROYALTY OF 50 CENTS A PAIR. 
THE LENS BLANKS ARE ROUGH OPAQUE PIECES OF GLASS OF SUITABLE SIZE,
DESIGN AND COMPOSITION FOR USE, WHEN GROUND AND POLISHED, AS MULTIFOCAL
LENSES IN EYEGLASSES.  EACH BLANK IS COMPOSED OF TWO OR MORE PIECES OF
GLASS OF DIFFERENT REFRACTIVE POWER, OF SUCH SIZE, SHAPE, AND
COMPOSITION AND SO DISPOSED THAT WHEN FUSED TOGETHER IN THE BLANK IT IS
SAID TO CONFORM TO THE SPECIFICATIONS AND CLAIMS OF SOME ONE OF THE
CORPORATION'S PATENTS. 

THE CORPORATION ALSO ISSUES THREE CLASSES OF LICENSES - LICENSES TO
WHOLESALERS, TO FINISHING RETAILERS AND TO PRESCRIPTION RETAILERS.  THE
LICENSES TO WHOLESALERS AUTHORIZE THE LICENSEES TO PURCHASE THE BLANKS
FROM THE LENS COMPANY, TO FINISH THEM BY GRINDING AND POLISHING, AND TO
SELL THEM TO PRESCRIPTION LICENSEES ONLY AT PRICES FIXED BY THE
CORPORATION LICENSOR.  IN FINISHING THE LENSES SO AS TO MAKE THEM AN
EFFECTIVE AID TO VISION OF THE PROSPECTIVE WEARER, TO WHOM THE
PRESCRIPTION RETAILER SELLS, IT IS NECESSARY FOR THE WHOLESALER, BY
GRINDING THE BLANKS, TO CONFORM THEIR CURVATURES TO THE PRESCRIPTION
SUPPLIED BY THE RETAILER WITH HIS ORDER.  BY THE TERMS OF THE LICENSE
THE WHOLESALERS ARE REQUIRED TO KEEP FULL ACCOUNTS OF ALL SALES,
SHOWING THE SALES PRICES OF LENSES AND THE NAMES OF THE PURCHASERS, AND
TO MAKE THEM AVAILABLE TO REPRESENTATIVES OF THE CORPORATION. 

THE LICENSES TO FINISHING RETAILERS - WHO PURCHASE THE BLANKS FROM
THE LENS COMPANY, GRIND AND POLISH THEM AND ADJUST THE LENSES, IN
FRAMES OR SUPPORTS, TO THE EYES OF THE CONSUMERS - CONTAIN SIMILAR
PROVISIONS.  THE RETAILERS ARE LICENSED TO PURCHASE THE BLANKS OF THE
LENS COMPANY AND TO SELL THEM TO THEIR CUSTOMERS AT PRICES PRESCRIBED
BY THE CORPORATION LICENSOR. 

BOTH THE LICENSES TO WHOLESALERS AND TO FINISHING RETAILERS REQUIRE
THE LICENSEE TO NOTIFY THE CORPORATION "OF ANY VIOLATION ON THE PART OF
ANY JOBBERS OR OTHER LICENSEES OF THE AGREEMENTS RESPECTIVELY MADE BY
THEM WITH THE CORPORATION, AND TO ASSIST THE CORPORATION IN ALL
POSSIBLE WAYS IN SECURING EVIDENCE AGAINST, AND ENFORCING ITS
AGREEMENTS WITH SUCH JOBBERS AND LICENSEES." 

THE LICENSES TO PRESCRIPTION RETAILERS, WHO ARE WITHOUT FACILITIES
FOR GRINDING AND FINISHING THE LENSES, BUT WHO PRESCRIBE AND ADJUST
GLASSES FOR THEIR CUSTOMERS, ARE SIGNED BOTH BY THE CORPORATION AND A
LICENSOR WHOLESALER, AND GRANT TO THE RETAILER A "FRANCHISE TO
PRESCRIBE AND FIT UNIVIS LENSES," IN RETURN FOR WHICH THE PRESCRIPTION
RETAILER AGREES TO SELL FINISHED LENSES ONLY TO CONSUMERS AND ONLY AT
PRICES PRESCRIBED BY THE CORPORATION. 

ALL THE LICENSES TO WHOLESALERS AND RETAILERS RECITE THE
CORPORATION'S OWNERSHIP OF THE LENS PATENTS AND PURPORT TO CONFER ON
THE LICENSEE THE PRIVILEGE OF SELLING THE PATENTED INVENTION IN THE
MANNER AND TO THE EXTENT STATED.  NO ROYALTIES ARE EXACTED OF ANY OF
THE LICENSEES OTHER THAN THE 50 CENTS COLLECTED BY THE CORPORATION FOR
EACH PAIR OF BLANKS SOLD BY THE LENS COMPANY.  THE REWARDS OF THE
CORPORATE APPELLEES FOR THE EXPLOITATION OF THE PATENTS AND THE
PATENTED LENSES ARE DERIVED WHOLLY FROM THE SALES BY THE LENS COMPANY
OF THE BLANKS, FROM THE PROCEEDS OF WHICH THE 50 CENT ROYALTY IS PAID. 

THE PRICES PRESCRIBED AND MAINTAINED UNDER THE LICENSING SYSTEM ARE:
$3.25 A PAIR FOR THE BLANKS SOLD BY THE LENS COMPANY TO WHOLESALERS,
AND $4 A PAIR FOR THOSE SOLD TO FINISHING RETAILERS; $7 A PAIR FOR
FINISHED LENSES SOLD BY WHOLESALERS; $16 A PAIR FOR WHITE, AND $20 FOR
TINTED, LENSES SOLD TO CONSUMERS BY PRESCRIPTION AND FINISHING
RETAILERS. 

THE CORPORATION PURSUES THE POLICY OF ISSUING LICENSES TO "QUALIFIED
LICENSEES" WHO, IT IS SAID, ARE REQUIRED TO MAINTAIN "HIGH STANDARDS OF
PRACTICE" AND TO BE SKILLED IN THE PERFORMANCE OF THE SERVICES WHICH
THEY UNDERTAKE TO RENDER.  ACCORDING TO THE CORPORATION'S INSTRUCTIONS
TO ITS FIELD REPRESENTATIVES, "PRICE CUTTERS" ARE NOT ELIGIBLE AS
PRESCRIPTION RETAILER LICENSEES.  INQUIRY IS MADE TO ASCERTAIN WHETHER
PROSPECTIVE LICENSEES ADVERTISE PRICES, AND WHETHER THEY ARE CONSIDERED
IN THEIR COMMUNITIES TO BE PRICE CUTTERS.  THE CORPORATION CANCELS
LICENSES PRINCIPALLY BECAUSE OF THE FAILURE OF LICENSEES TO ADHERE TO
THE PRICE FIXING PROVISIONS BUT ALSO BECAUSE THEY ADVERTISE PRICES OR
THE ACCEPTANCE OF INSTALLMENT PAYMENTS, OR FOR OTHER FORMS OF
ADVERTISING OBJECTIONABLE TO IT; FOR SELLING UNIVIS LENSES TO CUSTOMERS
OTHER THAN THOSE DESIGNATED BY THE CORPORATION; FOR NOT GIVING A
CERTAIN PERCENTAGE OF THE LICENSEES' MULTIFOCAL LENS BUSINESS TO
UNIVIS; BECAUSE THE LICENSEE IS LOCATED IN A DRUG, DEPARTMENT OR
JEWELRY STORE, OR BECAUSE THE LICENSEE ENGAGED IN PRICE CUTTING IN THE
SALE OF THE PRODUCTS OF OTHER MANUFACTURERS. 

FOR A TIME THE CORPORATION LICENSED APPROXIMATELY 20 PER CENT OF THE
RETAILERS IN A LOCALITY.  IT NOW LICENSES A LARGER PERCENTAGE BUT NOT
MORE THAN 50 PER CENT.  THERE ARE APPROXIMATELY 330 WHOLESALER
LICENSEES, 325 FINISHING RETAILER LICENSEES AND 6,500 PRESCRIPTION
RETAILER LICENSEES LOCATED IN VARIOUS STATES OF THE UNION, INCLUDING
NEW YORK AND THE DISTRICT OF COLUMBIA.  THE CORPORATION, BY ITS
REPRESENTATIVES, SOLICITS LICENSES AND NEGOTIATES WITH LICENSEES IN THE
TOWNS AND CITIES WHERE THEY CONDUCT THEIR BUSINESS, INCLUDING THE
SOUTHERN DISTRICT OF NEW YORK.  THE LENS COMPANY, WHOSE ANNUAL SALES
VOLUME IS APPROXIMATELY $1,000,000, SHIPS BLANKS IN INTERSTATE COMMERCE
FROM ITS FACTORY IN OHIO TO WHOLESALERS AND FINISHING LICENSEES IN THE
VARIOUS PLACES WHERE THEY ARE LOCATED, INCLUDING THE SOUTHERN DISTRICT,
WHERE ITS REPRESENTATIVES VISIT LICENSEES FOR THE PURPOSE OF
INSTRUCTING THEM IN FINISHING LENS BLANKS AND FOR PROMOTING SALES OF
UNIVIS LENSES.  THE FACTS AMPLY ESTABLISHED THE VENUE OF THE COURT
BELOW.  EASTMAN KODAK CO. V. SOUTHERN PHOTO CO., 273 U.S. 359, 373. 

OF THE SIXTEEN PATENTS OWNED BY THE CORPORATION, THREE ARE UNRELATED
TO THE ISSUES OF THE PRESENT CASE; FIVE ARE FOR METHODS OF PRODUCING
LENSES UTILIZED BY THE LENS COMPANY IN MANUFACTURING BLANKS AND DO NOT
CONCERN ANY METHOD OR PROCESS EMPLOYED BY THE LICENSEES WHO FINISH THE
LENS BLANKS.  EACH OF THE REMAINING EIGHT PATENTS RELATES TO THE SHAPE,
SIZE, COMPOSITION AND DISPOSITION OF THE PIECES OF GLASS OF DIFFERENT
REFRACTIVE POWER IN THE BLANKS INTO WHICH THEY ARE FUSED. 

THE DISTRICT COURT FOUND, 41 F.SUPP.  258, THAT THE CLAIMS OF EACH OF
THESE EIGHT PATENTS ARE FOR A FINISHED LENS AND THAT CONSEQUENTLY THE
WHOLESALERS AND FINISHING RETAILERS, IN GRINDING AND POLISHING EACH
LENS, PRACTICE IN PART THE PATENT, IN CONFORMITY TO WHICH THE LENS
COMPANY HAS MANUFACTURED THE BLANKS WHICH IT SUPPLIES.  THE COURT
THOUGHT THAT WITHOUT THE GRANTED LICENSE THE FINAL STEP IN FINISHING
THE LENS WOULD INFRINGE THE PATENT AND CONCLUDED THAT FOR THIS REASON
THE CORPORATION COULD CONDITION ITS LICENSES UPON THE MAINTENANCE BY
THE LICENSEE OF THE PRESCRIBED RETAIL PRICE.  SEE UNITED STATES V.
GENERAL ELECTRIC CO., 272 U.S. 476.  BUT IT HELD THAT THE PRESCRIPTION
RETAILER LICENSES ARE UNLAWFUL BECAUSE THEIR RESTRICTIONS UPON THE
RESALE OF THE FINISHED PRODUCT ARE NOT WITHIN THE PATENT MONOPOLY AND
ARE PROSCRIBED BY THE SHERMAN ACT. 

IT ALSO HELD THAT CERTAIN "FAIR TRADE AGREEMENTS" ENTERED INTO BY THE
LENS COMPANY WITH THE LICENSEES FOR THE CONTROL OF RESALE PRICES OF THE
FINISHED LENSES, WERE NOT WITHIN THE EXCEPTION TO THE SHERMAN ACT
CREATED BY THE MILLER-TYDINGS ACT.  THIS WAS BECAUSE THE LENS COMPANY
HAD UNDERTAKEN TO FIX THE RESALE PRICE OF THE FINISHED LENSES, WHICH
ARE A DIFFERENT PRODUCT FROM THE LENS BLANKS WHICH IT MANUFACTURES AND
SELLS.  THE COURT ACCORDINGLY LIMITED THE RELIEF WHICH IT GRANTED TO AN
INJUNCTION RESTRAINING RESPONDENTS FROM CARRYING OUT OR ENFORCING THE
RESTRICTIVE PROVISIONS OF THE PRESCRIPTION RETAILER LICENSES AND THE
FAIR TRADE AGREEMENTS, AND FROM USING ITS LICENSING SYSTEM - AS HAS
BEEN DONE IN ONE INSTANCE - AS THE MEANS OF PREVENTING A PARTICULAR
COMPETITIOR FROM MANUFACTURING AND DISTRIBUTING MULTIFOCAL LENS BLANKS
SIMILAR IN APPEARANCE TO THOSE PRODUCED BY THE LENS COMPANY. 

THE GOVERNMENT HAS NOT PUT IN ISSUE THE VALIDITY OF THE LENS PATENTS,
BUT ARGUES THAT THEIR SCOPE DOES NOT EXTEND BEYOND THE STRUCTURE OF THE
LENS BLANKS AND CONSEQUENTLY AFFORDS NO BASIS FOR THE CORPORATION'S
RESTRICTIONS ON THE SALE OF THE FINISHED LENSES WHICH THE WHOLESALERS
AND FINISHING RETAILERS FASHION FROM BLANKS PURCHASED FROM THE LENS
COMPANY.  IT INSISTS THAT THE NOVEL FEATURES OF THE INVENTION DO NOT
INCLUDE MORE THAN THE COMBINATION OF SHAPE, SIZE AND ARRANGEMENT OF THE
DESCRIBED PIECES OF GLASS WHEN THEY ARE FUSED INTO THE BLANK; THAT THE
GRINDING AND POLISHING OF THE BLANK INVOLVE NO PRACTICE AND ADD NO
FEATURE NOT COMMON TO THE FINISHING AND "FITTING" OF OTHER TYPES OF
MULTIFOCAL LENSES WHICH ARE NOT COVERED BY THE PATENTS; AND THAT THEIR
SCOPE CANNOT BE LAWFULLY EXTENDED TO A PROCEDURE NOT IN ITSELF NOVEL
MERELY BECAUSE IT IS APPLIED TO AN ARTICLE WHICH EMBODIES THE ONLY
NOVEL FEATURES OF THE ALLEGED INVENTION, AND HAS BY THE SALE BECOME A
LAWFUL SUBJECT OF COMMERCE. 

THE RECORD GIVES NO ACCOUNT OF THE PRIOR ART AND DOES NOT PROVIDE US
WITH OTHER MATERIAL TO WHICH, IF AVAILABLE, RESORT MIGHT APPROPRIATELY
BE HAD IN DETERMINING THE NATURE OF AN ALLEGED INVENTION AND THE
VALIDITY AND SCOPE OF THE PATENT CLAIMS FOUNDED UPON IT.  IN ANY EVENT,
WE FIND IT UNNECESSARY, IN THE CIRCUMSTANCES OF THIS CASE, TO DECIDE
WHETHER, AS THE COURT BELOW HELD, THE PATENT CLAIMS CAN RIGHTLY BE SAID
TO INCLUDE THE FINISHING OF THE BLANKS. 

AS APPELLEES CONCEDE, THE INVENTION OF ONLY A SINGLE LENS PATENT IS
UTILIZED IN MAKING EACH BLANK AND FINISHING IT AS A LENS.  WE THEREFORE
PUT TO ONE SIDE QUESTIONS WHICH MIGHT ARISE IF THE FINISHER OF A
PARTICULAR LENS BLANK UTILIZED THE INVENTION OF SOME PATENT OTHER THAN
THE PATENT WHICH WAS PRACTICED IN PART BY THE MANUFACTURE OF THE
BLANK.  AND WE ASSUME FOR PRESENT PURPOSES, WITHOUT DECIDING, THAT THE
PATENT IS NOT FULLY PRACTICED UNTIL THE FINISHING LICENSEE HAS GROUND
AND POLISHED THE BLANK SO THAT IT WILL SERVE ITS PURPOSE AS A LENS. 
BUT MERELY BECAUSE THE LICENSEE TAKES THE FINAL STEP IN THE MANUFACTURE
OF THE PATENTED PRODUCT, BY DOING WORK ON THE BLANK WHICH HE HAS
PURCHASED FROM THE PATENTEE'S LICENSEE, IT DOES NOT FOLLOW THAT THE
PATENTEE CAN CONTROL THE PRICE AT WHICH THE FINISHED LENS IS SOLD. 

NOTWITHSTANDING THE ASSUMPTION WHICH WE HAVE MADE AS TO THE SCOPE OF
THE PATENT, EACH BLANK, AS APPELLEES INSIST, EMBODIES ESSENTIAL
FEATURES OF THE PATENTED DEVICE AND IS WITHOUT UTILITY UNTIL IT IS
GROUND AND POLISHED AS THE FINISHED LENS OF THE PATENT.  WE MAY ASSUME
ALSO, AS APPELLEES CONTEND, THAT SALE OF THE BLANKS BY AN UNLICENSED
MANUFACTURER TO AN UNLICENSED FINISHER FOR THEIR COMPLETION WOULD
CONSTITUTE CONTRIBUTORY INFRINGEMENT BY THE SELLER.  LEEDS & CATLIN CO.
V. VICTOR TALKING MACHINE CO., 213 U.S. 325, 332-33; CF. CARBICE CORP.
V. AMERICAN PATENTS CORP., 283 U.S. 27, 34.    BUT IN ANY CASE IT IS
PLAIN THAT WHERE THE SALE OF THE BLANK IS BY THE PATENTEE OR HIS
LICENSEE - HERE THE LENS COMPANY - TO A FINISHER, THE ONLY USE TO WHICH
IT COULD BE PUT AND THE ONLY OBJECT OF THE SALE IS TO ENABLE THE LATTER
TO GRIND AND POLISH IT FOR USE AS A LENS BY THE PROSPECTIVE WEARER.  AN
INCIDENT TO THE PURCHASE OF ANY ARTICLE, WHETHER PATENTED OR
UNPATENTED, IS THE RIGHT TO USE AND SELL IT, AND UPON FAMILIAR
PRINCIPLES THE AUTHORIZED SALE OF AN ARTICLE WHICH IS CAPABLE OF USE
ONLY IN PRACTICING THE PATENT IS A RELINQUISHMENT OF THE PATENT
MONOPOLY WITH RESPECT TO THE ARTICLE SOLD.  LEITCH MFG. CO. V. BARBER
CO., 302 U.S. 458, 460-61; B.B. CHEMICAL CO. V. ELLIS, 314 U.S. 495. 
SALE OF A LENS BLANK BY THE PATENTEE OR BY HIS LICENSEE IS THUS IN
ITSELF BOTH A COMPLETE TRANSFER OF OWNERSHIP OF THE BLANK, WHICH IS
WITHIN THE PROTECTION OF THE PATENT LAW, AND A LICENSE TO PRACTICE THE
FINAL STAGE OF THE PATENT PROCEDURE.  IN THE PRESENT CASE THE ENTIRE
CONSIDERATION AND COMPENSATION FOR BOTH IS THE PURCHASE PRICE PAID BY
THE FINISHING LICENSEE TO THE LENS COMPANY.  WE HAVE NO QUESTION HERE
OF WHAT OTHER STIPULATIONS, FOR ROYALTIES OR OTHERWISE, MIGHT HAVE BEEN
EXACTED AS A PART OF THE ENTIRE TRANSACTION, WHICH DO NOT SEEK TO
CONTROL THE DISPOSITION OF THE PATENTED ARTICLE AFTER THE SALE.  THE
QUESTION IS WHETHER THE PATENTEE OR HIS LICENSEE, NO LONGER AIDED BY
THE PATENT, MAY LAWFULLY EXERCISE SUCH CONTROL. 

THE DECLARED PURPOSE OF THE PATENT LAW IS TO PROMOTE THE PROGRESS OF
SCIENCE AND THE USEFUL ARTS BY GRANTING TO THE INVENTOR A LIMITED
MONOPOLY, THE EXERCISE OF WHICH WILL ENABLE HIM TO SECURE THE FINANCIAL
REWARDS FOR HIS INVENTION.  CONSTITUTION OF THE UNITED STATES, ART. I,
SEC. 8, CL. 8; 35 U.S.C. SECS. 31, 40.  THE FULL EXTENT OF THE MONOPOLY
IS THE PATENTEE'S "EXCLUSIVE RIGHT TO MAKE, USE, AND VEND THE INVENTION
OR DISCOVERY."  THE PATENTEE MAY SURRENDER HIS MONOPOLY IN WHOLE BY THE
SALE OF HIS PATENT OR IN PART BY THE SALE OF AN ARTICLE EMBODYING THE
INVENTION.  HIS MONOPOLY REMAINS SO LONG AS HE RETAINS THE OWNERSHIP OF
THE PATENTED ARTICLE.  BUT SALE OF IT EXHAUSTS THE MONOPOLY IN THAT
ARTICLE AND THE PATENTEE MAY NOT THEREAFTER, BY VIRTUE OF HIS PATENT,
CONTROL THE USE OR DISPOSITION OF THE ARTICLE.  BLOOMER V. MCQUEWAN, 14
HOW.  539, 549-50; ADAMS V. BURKE, 17 WALL.  453; HOBBIE V. JENNISON,
149 U.S. 355.  HENCE THE PATENTEE CANNOT CONTROL THE RESALE PRICE OF
PATENTED ARTICLES WHICH HE HAS SOLD, EITHER BY RESORT TO AN
INFRINGEMENT SUIT, OR, CONSISTENTLY WITH THE SHERMAN ACT (UNLESS THE
MILLER-TYDINGS ACT APPLIES), BY STIPULATING FOR PRICE MAINTENANCE BY
HIS VENDEES.  BAUER & CIE V. O'DONNELL, 229 U.S. 1; BOSTON STORE V.
AMERICAN GRAPHOPHONE CO., 246 U.S. 8; STRAUS V. VICTOR TALKING MACHINE
CO., 243 U.S. 490; ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436,
456-57, AND CASES CITED. 

WE THINK THAT ALL THE CONSIDERATIONS WHICH SUPPORT THESE RESULTS LEAD
TO THE CONCLUSION THAT WHERE ONE HAS SOLD AN UNCOMPLETED ARTICLE WHICH,
BECAUSE IT EMBODIES ESSENTIAL FEATURES OF HIS PATENTED INVENTION, IS
WITHIN THE PROTECTION OF HIS PATENT, AND HAS DESTINED THE ARTICLE TO BE
FINISHED BY THE PURCHASER IN CONFORMITY TO THE PATENT, HE HAS SOLD HIS
INVENTION SO FAR AS IT IS OR MAY BE EMBODIED IN THAT PARTICULAR
ARTICLE.  THE REWARD HE HAS DEMANDED AND RECEIVED IS FOR THE ARTICLE
AND THE INVENTION WHICH IT EMBODIES AND WHICH HIS VENDEE IS TO PRACTICE
UPON IT.  HE HAS THUS PARTED WITH HIS RIGHT TO ASSERT THE PATENT
MONOPOLY WITH RESPECT TO IT AND IS NO LONGER FREE TO CONTROL THE PRICE
AT WHICH IT MAY BE SOLD EITHER IN ITS UNFINISHED OR FINISHED FORM.  NO
ONE WOULD DOUBT THAT IF THE PATENTEE'S LICENSEE HAD SOLD THE BLANKS TO
A WHOLESALER OR FINISHING RETAILER, WITHOUT MORE, THE PURCHASER WOULD
NOT INFRINGE BY GRINDING AND SELLING THEM.  THE ADDED STIPULATION BY
THE PATENTEE FIXING RESALE PRICES DERIVES NO SUPPORT FROM THE PATENT
AND MUST STAND ON THE SAME FOOTING UNDER THE SHERMAN ACT AS LIKE
STIPULATIONS WITH RESPECT TO UNPATENTED COMMODITIES.  ETHYL GASOLINE
CORP. V. UNITED STATES, SUPRA. 

OUR DECISIONS HAVE UNIFORMLY RECOGNIZED THAT THE PURPOSE OF THE
PATENT LAW IS FULFILLED WITH RESPECT TO ANY PARTICULAR ARTICLE WHEN THE
PATENTEE HAS RECEIVED HIS REWARD FOR THE USE OF HIS INVENTION BY THE
SALE OF THE ARTICLE, AND THAT ONCE THAT PURPOSE IS REALIZED THE PATENT
LAW AFFORDS NO BASIS FOR RESTRAINING THE USE AND ENJOYMENT OF THE THING
SOLD.  ADAMS V. BURKE, SUPRA, 456; KEELER V. STANDARD FOLDING BED CO.,
157 U.S. 659; MOTION PICTURE CO. V. UNIVERSAL FILM CO., 243 U.S. 502;
AND SEE CASES COLLECTED IN GENERAL PICTURES CO. V. ELECTRIC CO., 305
U.S. 124, 128, N. 1.  IN CONSTRUING AND APPLYING THE PATENT LAW SO AS
TO GIVE EFFECT TO THE PUBLIC POLICY WHICH LIMITS THE GRANTED MONOPOLY
STRICTLY TO THE TERMS OF THE STATUTORY GRANT, MORTON SALT CO. V.
SUPPIGER CO., 314 U.S. 488, THE PARTICULAR FORM OR METHOD BY WHICH THE
MONOPOLY IS SOUGHT TO BE EXTENDED IS IMMATERIAL.  THE FIRST VENDING OF
ANY ARTICLE MANUFACTURED UNDER A PATENT PUTS THE ARTICLE BEYOND THE
REACH OF THE MONOPOLY WHICH THAT PATENT CONFERS.  WHETHER THE LICENSEE
SELLS THE PATENTED ARTICLE IN ITS COMPLETED FORM OR SELLS IT BEFORE
COMPLETION FOR THE PURPOSE OF ENABLING THE BUYER TO FINISH AND SELL IT,
HE HAS EQUALLY PARTED WITH THE ARTICLE, AND MADE IT THE VEHICLE FOR
TRANSFERRING TO THE BUYER OWNERSHIP OF THE INVENTION WITH RESPECT TO
THAT ARTICLE.  TO THAT EXTENT HE HAS PARTED WITH HIS PATENT MONOPOLY IN
EITHER CASE, AND HAS RECEIVED IN THE PURCHASE PRICE EVERY BENEFIT OF
THAT MONOPOLY WHICH THE PATENT LAW SECURES TO HIM.  IF HE WERE
PERMITTED TO CONTROL THE PRICE AT WHICH IT COULD BE SOLD BY OTHERS HE
WOULD EXTEND HIS MONOPOLY QUITE AS MUCH IN THE ONE CASE AS IN THE
OTHER, AND HE WOULD EXTEND IT BEYOND THE FAIR MEANING OF THE PATENT
STATUTES AND THE CONSTRUCTION WHICH HAS HITHERTO BEEN GIVEN TO THEM. 

THERE IS THUS NO OCCASION FOR OUR RECONSIDERATION, AS THE GOVERNMENT
ASKS, OF UNITED STATES V. GENERAL ELECTRIC CO., SUPRA, ON WHICH
APPELLEES RELY.  THE COURT IN THAT CASE WAS AT PAINS TO POINT OUT THAT
A PATENTEE WHO MANUFACTURES THE PRODUCT PROTECTED BY THE PATENT AND
FAILS TO RETAIN HIS OWNERSHIP IN IT CAN NOT CONTROL THE PRICE AT WHICH
IT IS SOLD BY HIS DISTRIBUTORS (272 U.S. AT 489).  ACCORDINGLY, NEITHER
THE LENS COMPANY NOR THE CORPORATION, BY VIRTUE OF THE PATENTS, COULD
AFTER THE SALE OF THE LENS BLANK EXERCISE ANY FURTHER CONTROL OVER THE
ARTICLE SOLD. 

THE PRICE FIXING FEATURES OF APPELLEES' LICENSING SYSTEM, WHICH ARE
NOT WITHIN THE PROTECTION OF THE PATENT LAW, VIOLATE THE SHERMAN ACT
SAVE ONLY AS THE FAIR TRADE AGREEMENTS MAY BRING THEM WITHIN THE MILLER
TYDINGS ACT.  AGREEMENTS FOR PRICE MAINTENANCE OF ARTICLES MOVING IN
INTERSTATE COMMERCE ARE, WITHOUT MORE, UNREASONABLE RESTRAINTS WITHIN
THE MEANING OF THE SHERMAN ACT BECAUSE THEY ELIMINATE COMPETITION,
UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392; UNITED STATES V.
SOCONY-VACUUM CO., 310 U.S. 150, AND RESTRICTIONS IMPOSED BY THE SELLER
UPON RESALE PRICES OF ARTICLES MOVING IN INTERSTATE COMMERCE WERE,
UNTIL THE ENACTMENT OF THE MILLER-TYDINGS ACT, 50 STAT. 693,
CONSISTENTLY HELD TO BE VIOLATIONS OF THE SHERMAN ACT.  ETHYL GASOLINE
CO. V. UNITED STATES, SUPRA, 457, AND CASES CITED. 

THE MILLER-TYDINGS ACT PROVIDES THAT NOTHING IN THE SHERMAN ACT
"SHALL RENDER ILLEGAL, CONTRACTS OR AGREEMENTS PRESCRIBING MINIMUM
PRICES FOR THE RESALE OF A COMMODITY WHICH BEARS, OR THE LABEL OR
CONTAINER OF WHICH BEARS, THE TRADE MARK, BRAND, OR NAME OF THE
PRODUCER OR DISTRIBUTOR OF SUCH COMMODITY AND WHICH IS IN FREE AND OPEN
COMPETITION WITH COMMODITIES OF THE SAME GENERAL CLASS PRODUCED OR
DISTRIBUTED BY OTHERS  ...  " WHENEVER SUCH AGREEMENTS ARE LAWFUL WHERE
THE RESALE IS MADE. 

THE CONTRACTS ENTERED INTO BY THE LENS COMPANY WITH THE LICENSEES OF
THE CORPORATION STIPULATE FOR THE MAINTENANCE OF THE PRICES WHICH ARE
PRESCRIBED BY THE LICENSING SYSTEM.  APPELLEES ASSERT, AND WE ASSUME
FOR PRESENT PURPOSES, THAT THE BLANKS WHICH THE LENS COMPANY SELLS AND
THE FINISHED LENSES ARE MARKED BY APPELLEES' TRADEMARK AS REQUIRED BY
THE STATUTE.  IN THE CONTRACTS THE LENS COMPANY IS DESIGNATED AS THE
MANUFACTURER OF "EYE GLASS LENSES" WHICH ARE DISTRIBUTED AND SOLD UNDER
THE TRADEMARK OF THE MANUFACTURER.  BUT THE LENS COMPANY MANUFACTURES
THE BLANKS AND NOT THE FINISHED LENSES TO WHICH THE RESALE PRICES
APPLY.  IT IS THEREFORE NOT THE MANUFACTURER OF THE "COMMODITY" WHICH
THE LICENSEES SELL, AND THE LICENSEES ARE NOT ENGAGED IN THE "RESALE"
OF THE SAME COMMODITY THEY BUY.  WE FIND NOTHING IN THE LANGUAGE OF THE
MILLER-TYDINGS ACT, OR IN ITS LEGISLATIVE HISTORY, TO INDICATE THAT ITS
PROVISIONS WERE TO BE SO APPLIED TO PRODUCTS MANUFACTURED IN SUCCESSIVE
STAGES BY DIFFERENT PROCESSORS THAT THE FIRST WOULD BE FREE TO CONTROL
THE PRICE OF HIS SUCCESSORS.  THE PRESCRIBED PRICES ARE THUS NOT WITHIN
THE MILLER-TYDINGS EXCEPTION TO THE SHERMAN ACT. 

APPELLEES STRESS THE FEATURES OF THEIR LICENSING SYSTEM BY WHICH IT
IS SAID THEY PROTECT THE PUBLIC INTEREST AND THEIR OWN GOOD WILL BY THE
SELECTION AS LICENSEES OF THOSE WHO ARE SPECIALLY SKILLED AND COMPETENT
TO RENDER THE SERVICE WHICH THEY UNDERTAKE.  BUT IF WE ASSUME THAT SUCH
RESTRICTIONS MIGHT OTHERWISE BE VALID, CF. FASHION GUILD V. TRADE
COMMISSION, 312 U.S. 457, 467, THESE FEATURES ARE SO INTERWOVEN WITH
AND IDENTIFIED WITH THE PRICE RESTRICTIONS WHICH ARE THE CORE OF THE
LICENSING SYSTEM THAT THE CASE IS AN APPROPRIATE ONE FOR THE
SUPPRESSION OF THE ENTIRE LICENSING SCHEME EVEN THOUGH SOME OF ITS
FEATURES, INDEPENDENTLY ESTABLISHED, MIGHT HAVE BEEN USED FOR LAWFUL
PURPOSES.  ETHYL GASOLINE CORP. V. UNITED STATES, SUPRA, 461.  THE
INJUNCTION OF THE DISTRICT COURT WILL THEREFORE BE CONTINUED, AND
EXTENDED SO AS TO SUPPRESS ALL THE LICENSE CONTRACTS AND THE
MAINTENANCE OF THE LICENSING SYSTEM WHICH APPELLEES HAVE ESTABLISHED,
OTHER THAN THE CORPORATION'S LICENSE TO THE LENS COMPANY.  THE JUDGMENT
IN NO. 856 IS AFFIRMED.  THE JUDGMENT IN NO. 855 IS REVERSED, AND BOTH
CASES ARE REMANDED TO THE DISTRICT COURT FOR THE ENTRY OF AN
APPROPRIATE DECREE IN CONFORMITY TO THIS OPINION.  NO. 855 REVERSED. 
NO. 856 AFFIRMED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :























COCHRAN V. KANSAS, 316 U.S. 255 


NO. 510.  ARGUED APRIL 7, 8, 1942.  - DECIDED MAY 11, 1942.  - 153 KAN.
777, 113 P.2D 1048, REVERSED. 


1.  THE CONCLUSION OF THE SUPREME COURT OF KANSAS - THAT THE RECORD OF
CRIMINAL PROCEEDINGS IN A STATE COURT SHOWING THAT THE DEFENDANT WAS
REPRESENTED THROUGHOUT BY COUNSEL AND REVEALING ON ITS FACE NO
IRREGULARITY IN THE TRIAL IS SUFFICIENT REFUTATION OF HIS UNSUPPORTED
CHARGE IN A PETITION FOR HABEAS CORPUS THAT HE WAS DENIED THE RIGHT TO
SUMMON WITNESSES AND TO TESTIFY FOR HIMSELF - IS ACCEPTED IN THIS
CASE.  P. 256. 

2.  UPON REVIEW OF A JUDGMENT OF A STATE SUPREME COURT DENYING A
PETITION FOR A WRIT OF HABEAS CORPUS WHICH ALLEGED THAT THE PETITIONER,
HAVING BEEN CONVICTED OF CRIME AND INCARCERATED IN A PENITENTIARY, HAD
ENDEAVORED TO APPEAL FROM HIS CONVICTION WITHIN THE TIME ALLOWED BY
STATE LAW, BUT WITHOUT SUCCESS BECAUSE THE PRISON OFFICIALS, FOLLOWING
PRISON RULES, HAD SUPPRESSED HIS APPEAL DOCUMENTS; BUT WHERE IT DID NOT
APPEAR THAT THE TRUTH OF THESE ALLEGATIONS HAD BEEN INQUIRED INTO
BEFORE DISMISSAL OF THE PETITION - HELD THAT THE CASE SHOULD BE SENT
BACK TO THE STATE COURT FOR FURTHER PROCEEDINGS.  P. 256. 

COCHRAN V. KANSAS ET AL. 

CERTIORARI TO THE SUPREME COURT OF KANSAS. 

CERTIORARI, 314 U.S. 588, TO REVIEW A JUDGMENT OF THE SUPREME COURT
OF KANSAS DISMISSING A PETITION FOR A WRIT OF HABEAS CORPUS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN 1933, THE PETITIONER COCHRAN WAS CONVICTED BY A JURY IN A KANSAS
STATE COURT UPON A CHARGE OF PASSING A $12.60 CHECK WITH KNOWLEDGE THAT
IT WAS FORGED.  HIS MOTION FOR A NEW TRIAL WAS OVERRULED.  UPON A
FINDING THAT COCHRAN HAD PREVIOUSLY BEEN CONVICTED OF TWO OTHER
FELONIES, THE COURT SENTENCED HIM TO LIFE IMPRISONMENT AS AN HABITUAL
CRIMINAL PURSUANT TO A KANSAS STATUTE.  KAN. GEN. STAT. (CORRICK, 1935)
SEC. 21-107A.  TWO DAYS LATER, HE WAS SENT TO THE STATE PENITENTIARY,
WHERE HE HAS SINCE BEEN CONFINED. 

IN JANUARY, 1941, COCHRAN, ACTING IN HIS OWN BEHALF, FILED AN
ORIGINAL APPLICATION FOR HABEAS CORPUS IN THE SUPREME COURT OF KANSAS. 
HIS APPLICATION SETS OUT THE ALLEGATIONS, AMONG OTHERS, THAT THE TRIAL
JUDGE HAD DENIED HIM THE RIGHT TO SUMMON WITNESSES AND TO TESTIFY ON
HIS OWN BEHALF; AND THAT OFFICIALS OF THE STATE PENITENTIARY ENFORCING
PRISON RULES THERE IN EFFECT HAD SUPPRESSED APPEAL DOCUMENTS HE HAD
PREPARED, THEREBY MAKING IT IMPOSSIBLE FOR HIM TO PERFECT AN APPEAL
DURING THE TWO YEAR PERIOD ALLOWED BY KANSAS STATUTE.  THE STATE FILED
A RETURN CONTAINING A CERTIFIED COPY OF THE INFORMATION ON WHICH
COCHRAN WAS TRIED, JOURNAL ENTRIES OF THE TRIAL, AN ORDER OVERRULING
COCHRAN'S MOTION FOR A NEW TRIAL, AND THE JUDGMENT AND SENTENCE. 

THE KANSAS SUPREME COURT DENIED THE WRIT, STATING THAT "THE RECORDS
OF COURTS ARE NOT SET ASIDE UPON THE UNSUPPORTED STATEMENTS OF A
DEFEATED LITIGANT."  153 KAN. 777, 113 P.2D 1048, 1049.  WE ACCEPT THE
COURT'S CONCLUSION THAT THE RECORD, SHOWING THAT COCHRAN WAS
REPRESENTED BY COUNSEL THROUGHOUT, AND REVEALING ON ITS FACE NO
IRREGULARITIES IN THE TRIAL, IS SUFFICIENT REFUTATION OF HIS
UNSUPPORTED CHARGE THAT HE WAS DENIED THE RIGHT TO SUMMON WITNESSES AND
TESTIFY FOR HIMSELF. 

BUT THE ALLEGATIONS THAT PRISON OFFICIALS FRUSTRATED COCHRAN'S
EFFORTS TO PERFECT AN APPEAL ARE A DIFFERENT MATTER.  SINCE THESE
ALLEGATIONS RELATE TO A PERIOD SUBSEQUENT TO COCHRAN'S COMMITMENT, AND
SINCE THAT IS THE LATEST EVENT REFERRED TO IN THE RECORD, THE RECORD
ITSELF AFFORDS NO REFUTATION.  NOR ARE THESE ALLEGATIONS DENIED IN ANY
OTHER PART OF THE STATE'S ANSWER.  MOREOVER, THE OPINION OF THE COURT
ITSELF RECOGNIZES THAT THESE ALLEGATIONS HAD "SOME BASIS," POINTING OUT
THAT, "UNDER RULES  ...  PREVAILING AT THE PENITENTIARY" FOR SOME TIME
FOLLOWING COCHRAN'S COMMITMENT, HE WAS PREVENTED FROM SENDING OUT A
PETITION FOR HABEAS CORPUS, AND THAT IT WAS NOT UNTIL OCTOBER,
1935(AFTER THE TIME FOR APPEAL HAD EXPIRED) THAT SUCH A PETITION WAS
ACTUALLY FILED.  ON THE OTHER HAND, NOTHING IN THE OPINION INDICATES
THAT THE COURT DENIED THE APPLICATION ON THE GROUND THAT IT HAD
CANVASSED THE ALLEGATIONS AND SUPPORTING AFFIDAVITS OF COCHRAN AND
THREE OTHERS PERTAINING TO SUPPRESSION OF APPEAL AND HAD CONCLUDED THAT
THEY WERE UNTRUE. 

COCHRAN'S APPLICATION FOR HABEAS CORPUS DOES NOT BEAR THE NAME OF
COUNSEL.  NOT A LAWYER, HE APPARENTLY PREPARED IT HIMSELF.  ON THE
ISSUE OF DENIAL OF OPPORTUNITY TO PERFECT AN APPEAL, HE ALLEGED THAT
THE "RECORD SHOWS THAT THE DULY AUTHORIZED OFFICERS AND PRISON
OFFICIALS EXERCISED UNLAWFUL AUTHORITY BY SURPRESSING YOUR PETITIONERS
APPEAL DOCUMENTS," ETC.  IN ITS BRIEF AND ARGUMENT BEFORE US, THE STATE
HAS CONTENDED THAT THE WORD "RECORD" CAN REFER ONLY TO THE TRIAL RECORD
SET OUT IN ITS RETURN TO COCHRAN'S APPLICATION.  SINCE THAT RECORD DOES
NOT SHOW THE ALLEGED SUPPRESSION, IT IS URGED THAT COCHRAN'S
APPLICATION WAS PROPERLY DENIED BECAUSE WHOLLY UNSUPPORTED.  AS WE HAVE
POINTED OUT, THE RECORD OF THE TRIAL COURT PROCEEDINGS, RELATING AS IT
DID TO A PERIOD ENDING WITH COCHRAN'S COMMITMENT, COULD PROVE NOTHING
WITH RESPECT TO INDEPENDENT SUBSEQUENT EVENTS.  HENCE, TO PLACE THE
CONSTRUCTION URGED BY THE STATE ON THE WORD "RECORD" AS USED BY COCHRAN
WOULD NOT MERELY IMPUTE TO HIM A TECHNICAL PRECISION WHICH HIS
APPLICATION AS A WHOLE CONTRADICTS; IT WOULD RENDER THE APPLICATION
ENTIRELY MEANINGLESS. 

THE STATE PROPERLY CONCEDES THAT IF THE ALLEGED FACTS PERTAINING TO
SUPPRESSION OF COCHRAN'S APPEAL "WERE DISCLOSED AS BEING TRUE BEFORE
THE SUPREME COURT OF KANSAS, THERE WOULD BE NO QUESTION BUT THAT THERE
WAS A VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT."  AND IN KANSAS, HABEAS CORPUS IS RECOGNIZED AS AFFORDING A
REMEDY FOR A PERSON HELD IN PRISON IN VIOLATION OF A RIGHT GUARANTEED
BY THE FEDERAL CONSTITUTION.  FN1  HOWEVER INEPT COCHRAN'S CHOICE OF
WORDS, HE HAS SET OUT ALLEGATIONS SUPPORTED BY AFFIDAVITS, AND NOWHERE
DENIED, THAT KANSAS REFUSED HIM PRIVILEGES OF APPEAL WHICH IT AFFORDED
TO OTHERS.  SINCE NO DETERMINATION OF THE VERITY OF THESE ALLEGATIONS
APPEARS TO HAVE BEEN MADE, THE CAUSE MUST BE REMANDED FOR FURTHER
PROCEEDINGS.  REVERSED. 

FN1  SEE E.G. IN RE JARVIS, 66 KAN. 329, 31 P.2D 576.  CF. SMITH V.
O'GRADY, 312 U.S. 329. 
..END :





U.S. V. NUNNALLY INVESTMENT CO., 316 U.S. 258 


NO. 990, OCTOBER TERM, 1940.  ARGUED MARCH 10, 11, 1942.  - DECIDED MAY
11, 1942.  - 92 CT.CLS.  358, 36 F.SUPP.  332, AFFIRMED. 


1.  A JUDGMENT FOR A REFUND OF INCOME TAXES IN A SUIT AGAINST THE
COLLECTOR IS NOT A BAR TO A LATER SUIT AGAINST THE UNITED STATES FOR AN
ADDITIONAL REFUND OF INCOME TAXES FOR THE SAME YEAR, PAID TO THE SAME
COLLECTOR.  SAGE V. UNITED STATES, 250 U.S. 33.  P. 260. 

2.  THE TAXPAYER SOLD ALL ITS ASSETS FOR A CONSIDERATION CONSISTING
OF CASH AND THE ASSUMPTION BY THE PURCHASER OF CERTAIN OBLIGATIONS
INCLUDING FEDERAL TAXES FOR PREVIOUS YEARS.  THE PURCHASER PAID PART OF
THESE TAXES IN 1920, AND THE REMAINDER IN 1921 AND 1922.  IN
DETERMINING A DEFICIENCY FOR 1920, THE COMMISSIONER USED A LOWER BASIS
OF THE ASSETS SOLD THAN WAS USED BY THE TAXPAYER AND INCLUDED IN THE
SELLING PRICE THE FULL AMOUNT OF THE TAXES WHICH THE PURCHASER HAD
ASSUMED.  THE TAXPAYER, HAVING PAID, SUED THE COLLECTOR AND RECOVERED A
REFUND BASED UPON THE COMMISSIONER'S UNDERSTATEMENT OF THE BASIS OF THE
ASSETS SOLD.  HELD, THAT THE JUDGMENT AGAINST THE COLLECTOR DID NOT BAR
A SUIT AGAINST THE UNITED STATES CLAIMING FURTHER REFUND ON THE GROUND
THAT THE TAXES ASSUMED BY THE PURCHASER WHICH WERE NOT PAID IN 1920
WERE NOT TAXABLE AS INCOME OF THAT YEAR.  PP. 259, 264. 

UNITED STATES V. NUNNALLY INVESTMENT CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 313 U.S. 584, TO REVIEW A JUDGMENT GRANTING A REFUND OF
MONEY ERRONEOUSLY COLLECTED AS INCOME TAX. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT AGAINST THE UNITED STATES TO RECOVER TAXES FOR THE
YEAR 1920.  IN THAT YEAR THE TAXPAYER, THE RESPONDENT HERE, SOLD ITS
BUSINESS AND ALL ITS ASSETS TO ANOTHER CORPORATION.  THE CONSIDERATION
CONSISTED OF CASH AND THE ASSUMPTION OF CERTAIN OF THE RESPONDENT'S
OBLIGATIONS, INCLUDING FEDERAL TAXES FOR PREVIOUS YEARS.  THE PURCHASER
PAID PART OF THESE TAXES IN 1920, THE REMAINDER IN 1921 AND 1922.  IN
DETERMINING A DEFICIENCY FOR THE YEAR 1920, THE COMMISSIONER EMPLOYED A
LOWER BASIS OF THE ASSETS SOLD THAN WAS USED BY THE RESPONDENT.  THE
COMMISSIONER COMPUTED THE SELLING PRICE BY INCLUDING THE FULL AMOUNT OF
THE TAXES WHICH THE PURCHASER AGREED TO ASSUME.  AFTER PAYING THE
ASSESSED TAX, THE RESPONDENT FILED A CLAIM FOR REFUND, ALLEGING ONLY
THAT THE COMMISSIONER HAD UNDERSTATED THE BASIS OF THE ASSETS SOLD.  IN
DUE COURSE A SUIT WAS BROUGHT AGAINST THE COLLECTOR IN THE DISTRICT
COURT.  A SETTLEMENT WAS REACHED, UNDER WHICH JUDGMENT FOR THE TAXPAYER
WAS ENTERED.  IN ACCORDANCE WITH THEIR AGREEMENT, NEITHER PARTY
APPEALED. 

THEREAFTER, THE RESPONDENT FILED A SECOND REFUND CLAIM, ASSERTING
THAT THE TAXES ASSUMED BY THE PURCHASER WHICH WERE NOT PAID IN 1920
WERE NOT TAXABLE TO THE RESPONDENT IN THAT YEAR.  THIS CLAIM WAS
REJECTED, AND A SUIT AGAINST THE UNITED STATES WAS BEGUN IN THE COURT
OF CLAIMS.  HOLDING THAT THE JUDGMENT AGAINST THE COLLECTOR IN THE
DISTRICT COURT WAS NOT RES JUDICATA OF THE TAXPAYERS' CLAIM IN THIS
SUIT AGAINST THE UNITED STATES, THE COURT OF CLAIMS (WITH ONE JUDGE
DISSENTING) GAVE JUDGMENT FOR THE RESPONDENT.  36 F.SUPP.  332.  IN
VIEW OF THE IMPORTANCE OF THIS QUESTION IN THE ADMINISTRATION OF THE
FEDERAL INCOME TAX LAW AND ITS RELATION TO THE DECISION IN MOORE ICE
CREAM CO. V. ROSE, 289 U.S. 373, WE BROUGHT THE CASE HERE.  314 U.S.
702. 

NEARLY A QUARTER-CENTURY AGO IN SAGE V. UNITED STATES, 250 U.S. 33,
THIS COURT UPON FULL CONSIDERATION ANNOUNCED THE DOCTRINE THAT THE
UNITED STATES IS A "STRANGER" TO A JUDGMENT RESULTING FROM A SUIT
BROUGHT AGAINST A COLLECTOR, AND THAT SUCH A JUDGMENT IS, THEREFORE,
NOT A BAR IN A SUBSEQUENT ACTION UPON THE SAME CLAIM AGAINST THE UNITED
STATES.  THIS WAS NOT A NOVEL DOCTRINE.  THE RESULT WAS DRAWN FROM THE
CONCEPTION OF A SUIT AGAINST A COLLECTOR AS "PERSONAL," SINCE HE WAS
PERSONALLY RESPONSIBLE FOR ILLEGALLY EXACTING MONIES UNDER THE CLAIM
THAT THEY WERE DUE AS TAXES.  SUCH A "PERSONAL" REMEDY AGAINST THE
COLLECTOR, DERIVED FROM THE COMMON-LAW ACTION OF INDEBITATUS ASSUMPSIT,
HAS ALWAYS BEEN PART OF OUR FISCAL ADMINISTRATION.  UNLESS THE
APPLICATION GIVEN TO THIS REMEDY BY THE DOCTRINE OF THE SAGE CASE HAS
BEEN DISPLACED BY CONGRESS OR RENOUNCED BY LATER DECISIONS OF THIS
COURT, THE JUDGMENT MUST STAND.  CONCEDEDLY, CONGRESS HAS NOT DONE SO.
AND ALTHOUGH RECOGNITION HAS BEEN MADE OF THE TECHNICAL NATURE OF A
SUIT AGAINST A COLLECTOR, NO SUPPORT CAN BE FOUND FOR THE CONTENTION
THAT THE SAGE DOCTRINE HAS BEEN DISCARDED AS AN ANACHRONISM.  ON THE
CONTRARY, THE RULE HAS BEEN REAFFIRMED IN AN UNBROKEN LINE OF
AUTHORITY. 

SOON AFTER THE DECISION IN THE SAGE CASE, THE QUESTION WAS PRESENTED
WHETHER AN ACTION AGAINST A COLLECTOR COULD BE CONTINUED AGAINST HIS
SUCCESSOR.  THIS COURT HELD THAT IT COULD NOT, BECAUSE THE SAGE CASE
HAD SETTLED THAT SUCH A SUIT WAS "PERSONAL."  SEE SMIETANKA V. INDIANA
STEEL CO., 257 U.S. 1; UNION TRUST CO. V. WARDELL, 258 U.S. 537.  IN
BANKERS COAL CO. V. BURNET, 287 U.S. 308, A SUIT AGAINST A COLLECTOR
WITH RESPECT TO TAXES FOR THE YEARS 1914-1919 HAD RESULTED IN A
DETERMINATION THAT THE TAXPAYER WAS ENTITLED TO A DEPLETION ALLOWANCE
OF FIVE CENTS PER TON ON COAL MINE ROYALTIES.  IT WAS CONTENDED THAT
THIS DETERMINATION WAS RES JUDICATA OF THAT ISSUE IN A SUBSEQUENT
ACTION AGAINST THE COMMISSIONER RELATING TO TAXES FOR LATER YEARS.  THE
COURT, AGAIN RELYING ON THE SAGE CASE, REJECTED THE ARGUMENT IN THESE
WORDS:  "WITH RESPECT TO THIS CONTENTION IT IS SUFFICIENT TO SAY THAT
THE SUIT IN THE DISTRICT COURT WAS NOT AGAINST THE COMMISSIONER OF
INTERNAL REVENUE, THE RESPONDENT HERE, BUT AGAINST THE COLLECTOR,
JUDGMENT AGAINST WHOM IS NOT RES ADJUDICATA AGAINST THE COMMISSIONER OR
THE UNITED STATES."  287 U.S. AT 311-312. 

THE GOVERNMENT LEANS HEAVILY UPON MOORE ICE CREAM CO. V. ROSE, 289
U.S. 373.  IN THAT CASE THE CONSTITUTIONALITY OF SEC. 1014 OF THE
REVENUE ACT OF 1924, 43 STAT. 253, 343, PROVIDING THAT A TAXPAYER MAY
RECOVER AN UNLAWFUL FEDERAL TAX EVEN THOUGH HE PAID THE TAX WITHOUT
PROTEST, WAS UPHELD AS APPLIED TO A PAYMENT WITHOUT PROTEST MADE PRIOR
TO THE ENACTMENT OF THE PROVISION.  IN REACHING THIS CONCLUSION, THE
COURT NOTED THAT, UNDER R.S. SEC. 989, 28 U.S.C. SEC. 842, A COLLECTOR
WHO ACTS UNDER THE DIRECTIONS OF THE SECRETARY OF THE TREASURY, OR
OTHER PROPER OFFICER OF THE GOVERNMENT, "IS ENTITLED AS OF RIGHT TO A
CERTIFICATE CONVERTING THE SUIT AGAINST HIM INTO ONE AGAINST THE
GOVERNMENT  ...  A SUIT AGAINST A COLLECTOR WHO HAS COLLECTED A TAX IN
THE FULFILLMENT OF A MINISTERIAL DUTY IS TODAY AN ANOMALOUS RELIC OF
BYGONE MODES OF THOUGHT.  HE IS NOT SUABLE AS A TRESPASSER, NOR IS HE
TO PAY OUT OF HIS OWN PURSE.  HE IS MADE A DEFENDANT BECAUSE THE
STATUTE HAS SAID FOR MANY YEARS THAT SUCH A REMEDY SHALL EXIST, THOUGH
HE HAS BEEN GUILTY OF NO WRONG, AND THOUGH ANOTHER IS TO PAY.  ...
THERE MAY HAVE BEEN UTILITY IN SUCH PROCEDURAL DEVICES IN DAYS WHEN THE
GOVERNMENT WAS NOT SUABLE AS FREELY AS NOW.  ...  THEY HAVE LITTLE
UTILITY TODAY, AT ALL EVENTS WHERE THE COMPLAINT AGAINST THE OFFICER
SHOWS UPON ITS FACE THAT IN THE PROCESS OF COLLECTING HE WAS ACTING IN
THE LINE OF DUTY, AND THAT IN THE LINE OF DUTY HE HAS TURNED THE MONEY
OVER.  IN SUCH CIRCUMSTANCES HIS PRESENCE AS A DEFENDANT IS MERELY A
REMEDIAL EXPEDIENT FOR BRINGING THE GOVERNMENT INTO COURT."  289 U.S.
AT 381-83. 

THE GOVERNMENT URGES THAT, EVEN THOUGH THE MOORE ICE CREAM CASE WAS
NOT CONCERNED WITH THE CONCLUSIVENESS OF A JUDGMENT IN A SUIT AGAINST
THE COLLECTOR, ITS RATIONALE UNDERMINED THE SAGE DOCTRINE.  BUT SUCH
HAS NOT BEEN THE INFLUENCE OF THE MOORE ICE CREAM CASE ON THE
SUBSEQUENT COURSE OF DECISIONS RELEVANT TO OUR PURPOSE.  TAIT V.
WESTERN MARYLAND RY. CO., 289 U.S. 620, DECIDED BY A UNANIMOUS COURT
THREE WEEKS AFTER THE DECISION IN THE MOORE ICE CREAM CASE, IS
INCONTROVERTIBLE PROOF THAT THE SAGE DOCTRINE WAS LEFT UNIMPAIRED.  THE
COURT THERE HELD THAT A JUDGMENT IN A SUIT AGAINST THE COMMISSIONER WAS
BINDING IN A SUBSEQUENT ACTION AGAINST THE UNITED STATES AND THE
COLLECTOR.  THE DOCTRINE IN THE SAGE CASE WAS EXPLICITLY REAFFIRMED:
"IN A SUIT FOR UNLAWFUL EXACTION THE LIABILITY OF A COLLECTOR IS NOT
OFFICIAL BUT PERSONAL.  SAGE V. UNITED STATES, 250 U.S. 33; SMIETANKA
V. INDIANA STEEL CO., 257 U.S. 1; GRAHAM & FOSTER V. GOODCELL, 282 U.S.
409, 430.  AND FOR THIS REASON A JUDGMENT IN A SUIT TO WHICH HE WAS A
PARTY DOES NOT CONCLUDE THE COMMISSIONER OR THE UNITED STATES.  BANKERS
POCAHONTAS COAL CO. V. BURNET, 287 U.S. 308, 311.  WE THINK, HOWEVER,
THAT WHERE A QUESTION HAS BEEN ADJUDGED AS BETWEEN A TAXPAYER AND THE
GOVERNMENT OR ITS OFFICIAL AGENT, THE COMMISSIONER, THE COLLECTOR,
BEING AN OFFICIAL INFERIOR IN AUTHORITY, AND ACTING UNDER THEM, IS IN
SUCH PRIVITY WITH THEM THAT HE IS ESTOPPED BY THE JUDGMENT."  289 U.S.
AT 627. 

MORE RECENTLY, IN SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381, WHERE
THE PRINCIPLE OF RES JUDICATA WAS APPLIED TO SUITS TO WHICH AN
ADMINISTRATIVE AGENCY WAS A PARTY, THE COURT AGAIN EXPRESSLY ADHERED TO
THE DOCTRINE OF THE SAGE CASE:  "CASES HOLDING THAT A JUDGMENT IN A
SUIT AGAINST A COLLECTOR FOR UNLAWFUL EXACTION IS NOT A BAR TO A
SUBSEQUENT SUIT BY OR AGAINST THE COMMISSIONER OR THE UNITED STATES
(SAGE V. UNITED STATES, 250 U.S. 33; BANKERS POCAHONTAS COAL CO. V.
BURNET, 287 U.S. 308) ARE NOT IN POINT, SINCE THE SUIT AGAINST THE
COLLECTOR IS 'PERSONAL AND ITS INCIDENTS, SUCH AS THE NATURE OF THE
DEFENSES OPEN AND THE ALLOWANCE OF INTEREST, ARE DIFFERENT.'"  310 U.S.
AT 403.  AND EARLIER IN THIS TERM IN UNITED STATES V. KALES, 314 U.S.
186, IN SPEAKING OF THE RIGHT OF A TAXPAYER TO MAINTAIN SEPARATE SUITS
AGAINST A COLLECTOR AND THE GOVERNMENT FOR TAX PAYMENTS MADE TO TWO
COLLECTORS ON INCOME DERIVED FROM A SINGLE TRANSACTION IN A SINGLE TAX
YEAR, THE COURT SAID:  "THE JUDGMENT AGAINST THE COLLECTOR IS A
PERSONAL JUDGMENT, TO WHICH THE UNITED STATES IS A STRANGER EXCEPT AS
IT HAS OBLIGATED ITSELF TO PAY IT.  SEE SAGE V. UNITED STATES, SUPRA;
SMIETANKA V. INDIANA STEEL CO., SUPRA, 4, 5.  WHILE THE STATUTES HAVE
FOR MOST PRACTICAL PURPOSES REDUCED THE PERSONAL LIABILITY OF THE
COLLECTOR TO A FICTION, THE COURSE OF THE LEGISLATION INDICATES CLEARLY
ENOUGH THAT IT IS A FICTION INTENDED TO BE ACTED UPON TO THE EXTENT
THAT THE RIGHT TO MAINTAIN THE SUIT AND ITS INCIDENTS, UNTIL JUDGMENT
RENDERED, ARE TO BE LEFT UNDISTURBED.  ...  THE RIGHT TO PURSUE THE
COMMON LAW ACTION AGAINST THE COLLECTOR IS TOO DEEPLY IMBEDDED IN THE
STATUTES AND JUDICIAL DECISIONS OF THE UNITED STATES TO ADMIT OF SO
RADICAL A DEPARTURE FROM ITS TRADITIONAL USE AND CONSEQUENCES AS THE
GOVERNMENT NOW URGES, WITHOUT FURTHER CONGRESSIONAL ACTION."  314 U.S.
AT 199-200. 

IN SUMMARY, THEREFORE, AN IMPOSING SERIES OF OPINIONS HAS FORTIFIED
THE ORIGINAL AUTHORITY OF THE SAGE DOCTRINE.  NO DOUBT THE PRECISE
QUESTION RAISED IN EACH OF THESE CASES WAS DIFFERENT FROM THE ONE NOW
BEFORE US, AND EACH CASE MIGHT HAVE BEEN DECIDED WITHOUT REFERENCE TO
THE PRINCIPLES UNDERLYING THE RULE IN THE SAGE CASE.  BUT THIS ONLY
SERVES TO EMPHASIZE THE OBDURACY OF THE DOCTRINE AS PART OF THE
HISTORICAL SCHEME OF REVENUE ADMINISTRATION.  IT WOULD HAVE BEEN EASY
IN ALL OF THESE CASES TO DISSIPATE THE FORCE OF THE DOCTRINE WHICH THE
SAGE CASE REPRESENTS BY REJECTING IT AND RESTING THE DECISION IN THAT
CASE UPON THE ALTERNATIVE GROUND AFFORDED BY THE ACT OF JULY 27, 1912,
C. 256, 37 STAT. 240.  THAT THIS LONG LINE OF CASES SHOULD HAVE
REFERRED TO AND RELIED UPON THE SAGE CASE WITHOUT REJECTING THE
DOCTRINE FOR WHICH IT WAS CITED ONLY UNDERLINES STILL FURTHER ITS
PERSISTENCE. 

EVEN WHEN THIS COURT FOUND THAT THE COMMON-LAW RIGHT TO SUE THE
COLLECTOR HAD ARGUMENTATIVELY BEEN WITHDRAWN, SEE CARY V. CURTIS, 3
HOW.  236, CONGRESS PROMPTLY RESTORED THAT RIGHT.  ACT OF FEBRUARY 26,
1845, C. 22, 5 STAT. 727.  THE PROBLEM OF LEGAL REMEDIES APPROPRIATE
FOR FISCAL ADMINISTRATION RESTS WITHIN EASY CONGRESSIONAL CONTROL. 
CONGRESS CAN DEAL WITH THE MATTER COMPREHENSIVELY, UNEMBARRASSED BY THE
LIMITATIONS OF A LITIGATION INVOLVING ONLY ONE PHASE OF A COMPLEX
PROBLEM.  THE GOVERNMENT ITSELF DOES NOT NOW ASK US TO JETTISON THE
WHOLE NOTION OF SUING A COLLECTOR PERSONALLY.  IT MERELY ASKS US TO
ELIMINATE ONE CONSEQUENCE OF THAT CONCEPTION.  IN THE FIELD OF CUSTOM
DUTIES CONGRESS HAS DEVISED A COMPREHENSIVE AND INTERRELATED SCHEME OF
ADMINISTRATIVE AND JUDICIAL REMEDIES.  SEE ACT OF JUNE 17, 1930, 46
STAT. 590, 734, 19 U.S.C. SECS. 1514-15; FREUND, ADMINISTRATIVE POWERS
OVER PERSONS AND PROPERTY, PP. 553-60.  IF THE DOCTRINE OF THE SAGE
CASE IS NOW TO BE ABANDONED, SUCH A DETERMINATION OF POLICY IN THE
ADMINISTRATION OF THE INCOME TAX LAW SHOULD BE MADE BY CONGRESS, WHICH
MAINTAINS A JOINT COMMITTEE ON INTERNAL REVENUE TAXATION CHARGED WITH
THE DUTY OF INVESTIGATING THE OPERATION OF THE FEDERAL REVENUE LAWS AND
RECOMMENDING SUCH LEGISLATION AS MAY BE DEEMED DESIRABLE.  AFFIRMED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE BYRNES
DISSENT FOR THE REASONS (1) THAT HERE, UNLIKE THE SITUATION IN UNITED
STATES V. KALES, 314 U.S. 186, THE TAXPAYER HAD BUT A SINGLE CAUSE OF
ACTION AND COULD HAVE RAISED EVERY ISSUE WITH RESPECT TO THE VALIDITY
OF THE TAXES IN THE EARLIER SUIT; (2) THAT HERE, UNLIKE THE SITUATION
IN SAGE V. UNITED STATES, 250 U.S. 33, 38-39, THERE HAD BEEN NO
INTERVENING LEGISLATION WHICH CREATED RIGHTS AND LIFTED THE BAR OF THE
JUDGMENT IN THE EARLIER SUIT; AND (3) THAT IN THE EARLIER SUIT THE
UNITED STATES BECAME "A PARTY TO THE JUDGMENT AS A MATTER OF LAW"
(GRISWOLD, RES JUDICATA IN FEDERAL TAX CASES, 46 YALE L. JOURN.  1320,
1342), SINCE IN THESE DAYS THE PRESENCE OF THE COLLECTOR AS A DEFENDANT
WHO ACTS "IN THE LINE OF DUTY" IS "MERELY A REMEDIAL EXPEDIENT FOR
BRINGING THE GOVERNMENT INTO COURT."  MOORE ICE CREAM CO. V. ROSE, 289
U.S. 373, 383. 
..END :



















U.S. V. MASONITE CORP., 316 U.S. 265 


NO. 723.  ARGUED APRIL 9, 10, 1942.  - DECIDED MAY 11, 1942.  - 40
F.SUPP.  852, REVERSED. 


1.  A PRICE-FIXING COMBINATION OF COMPETITORS IN INTERSTATE TRADE
VIOLATES THE SHERMAN ACT.  P. 274. 

2.  ACCEPTANCE BY COMPETITORS, WITHOUT PREVIOUS AGREEMENT, OF AN
INVITATION TO PARTICIPATE IN A PLAN, THE NECESSARY CONSEQUENCE OF
WHICH, IF CARRIED OUT, WILL BE RESTRAINT OF INTERSTATE COMMERCE,
RENDERS THEM LIABLE AS CONSPIRATORS UNDER THE SHERMAN ACT.  P. 275. 

3.  THE FIXING OF PRICES BY ONE MEMBER OF A GROUP PURSUANT TO EXPRESS
DELEGATION, ACQUIESCENCE, OR UNDERSTANDING OF THE OTHERS, IS NO LESS
ILLEGAL THAN IF DONE BY THEIR DIRECT, JOINT ACTION.  P. 276. 

4.  A COMBINATION FIXING PRICES IN INTERSTATE COMMERCE CAN NOT BE
JUSTIFIED BY BUSINESS REASONS OR BY ITS TENDENCY TO INCREASE
DISTRIBUTION OF THE COMMODITY WITHOUT INCREASE OF PRICE TO CONSUMERS,
OR BY ITS TENDENCY TO PROMOTE COMPETITION BETWEEN DEALERS.  P. 276. 

5.  A PATENT AFFORDS NO IMMUNITY FOR A MONOPOLY NOT PLAINLY WITHIN
THE GRANT; AND THE GRANT CAN NOT BE EXTENDED BY CONTRACT.  P. 277. 

6.  WHEN A PATENTED ARTICLE IS DISPOSED OF TO A PURCHASER, IT PASSES
BEYOND THE MONOPOLY PROTECTED BY THE PATENT LAW.  P. 277. 

7.  A DETERMINATION AS TO WHETHER A PARTICULAR DISPOSITION OF A
PATENTED ARTICLE EXHAUSTS THE PATENT MONOPOLY IS NOT GOVERNED BY THE
FORM OF THE TRANSACTION BUT DEPENDS UPON WHETHER THERE HAS BEEN SUCH A
DISPOSITION THAT IT MAY FAIRLY BE SAID THE PATENTEE HAS RECEIVED HIS
REWARD FOR THE USE OF THE ARTICLE.  P. 278. 

8.  IN MAKING SUCH A DETERMINATION, REGARD MUST BE HAD FOR THE
DOMINANT CONCERN OF THE PATENT SYSTEM, VIZ., PROMOTION OF THE PROGRESS
OF SCIENCE AND THE USEFUL ARTS; THE REWARD TO THE INVENTOR IS SECONDARY
AND MERELY A MEANS TO AN END.  P. 278. 

9.  THE SCOPE OF THE PATENTEE'S STATUTORY RIGHT TO "VEND" CANNOT BE
DETERMINED BY THE PRIVATE LAW OF SALES ALONE.  SUCH RIGHTS MUST BE
STRICTLY CONSTRUED SINCE PATENTS ARE PRIVILEGES RESTRICTIVE OF A FREE
ECONOMY.  P. 280. 

10.  NUMEROUS CORPORATIONS WHICH WERE IN ACTIVE COMPETITION WITH EACH
OTHER AS DEALERS IN BUILDING MATERIALS ENTERED INTO A COMBINATION
WHEREBY ONE OF THEM, WHICH MANUFACTURED AND SOLD MATERIAL CALLED
"HARDBOARD" FOR WHICH IT HELD A PATENT, UNDERTOOK TO CONSTITUTE THE
OTHERS ITS DEL CREDERE AGENTS FOR THE SALE OF THAT PRODUCT THROUGH
THEIR RESPECTIVE SALES ORGANIZATIONS AT PRICES FIXED BY THE PATENT
OWNER.  HELD, THAT THIS ARRANGEMENT WENT BEYOND THE PATENT PRIVILEGE
AND VIOLATED THE SHERMAN ACT.  UNITED STATES V. GENERAL ELECTRIC CO.,
272 U.S. 476, DISTINGUISHED.  PP. 280, 282. 

UNITED STATES V. MASONITE CORPORATION ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF THE DISTRICT COURT WHICH DISMISSED A BILL
BROUGHT BY THE UNITED STATES UNDER THE SHERMAN ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER APPELLEES HAVE
COMBINED TO RESTRAIN TRADE OR COMMERCE IN VIOLATION OF SECS. 1 AND 2 OF
THE SHERMAN ACT.  15 U.S.C. SECS. 1, 2, 26 STAT. 209.  THE BILL TO
ENJOIN THE ALLEGED VIOLATIONS OF THE ACT WAS DISMISSED BY THE DISTRICT
COURT (40 F.SUPP.  852) ON THE AUTHORITY OF UNITED STATES V. GENERAL
ELECTRIC CO., 272 U.S. 476.  THE CASE IS HERE ON APPEAL.  15 U.S.C.
SEC. 29, 32 STAT. 823, 36 STAT. 1167; 28 U.S.C. SEC. 345, JUDICIAL
CODE, SEC. 238. 

THE APPELLEES ARE MASONITE CORPORATION, CELOTEX CORPORATION, CERTAIN
TEED PRODUCTS CORPORATION, JOHNS-MANVILLE SALES CORPORATION, INSULITE
COMPANY, FLINTKOTE COMPANY, NATIONAL GYPSUM COMPANY, WOOD CONVERSION
COMPANY, ARMSTRONG CORK COMPANY, AND DANT & RUSSELL, INC. EACH IS
ENGAGED EITHER IN MANUFACTURING AND SELLING BUILDING MATERIALS, OR IN
SELLING BUILDING MATERIALS MANUFACTURED BY OTHERS.  ALL MAINTAIN
SELLING ORGANIZATIONS AND TO A LARGE EXTENT COMPETE IN THE SAME
MARKETS.  AS WE SHALL SEE, SOME HAVE COMPETING PATENTS, THOUGH OTHERS
DO NOT.  MASONITE IS A MANUFACTURER AND DISTRIBUTOR OF HARDBOARD. 
HARDBOARD - A HOMOGENEOUS, HARD, DENSE, GRAINLESS, SYNTHETIC BOARD - IS
MADE FROM WOOD CHIPS.  IT HAS A HIGH TENSILE STRENGTH, LOW WATER
ABSORPTION AND A DENSITY THAT RANGES FROM 30 TO 60 LBS. PER CUBIC
FOOT.  IT IS USED IN THE BUILDING INDUSTRY AS WALLBOARD, PANELLING,
FLOORING, CEILINGS AND FORMS INTO WHICH CONCRETE IS POURED.  IT ALSO
HAS NUMEROUS INDUSTRIAL USES.  MASONITE BEGAN ITS PRODUCTION OF
HARDBOARD IN 1926 AND DISTRIBUTED IT THROUGH ITS OWN SELLING
ORGANIZATION.  BETWEEN MARCH 30, 1926 AND MARCH 20, 1928, FOUR PATENTS
WERE ISSUED TO IT, THE CLAIMS OF WHICH COVERED BOTH HARDBOARD AND THE
PROCESSES FOR MAKING IT.  CELOTEX FOR SOME PERIOD PRIOR TO 1928 HAD
BEEN MANUFACTURING AND SELLING INSULATION BOARD - A FIBRE BOARD WHICH
HAS A DENSITY OF LESS THAN 30 LBS. PER CUBIC FOOT AND WHICH IS SOFTER
AND LIGHTER, HAS A LOWER TENSILE STRENGTH, AND IS LESS RESISTANT TO
WATER THAN HARDBOARD.  IN 1928, CELOTEX ANNOUNCED THAT IT INTENDED TO
BEGIN THE MANUFACTURE OF HARDBOARD FROM BAGASSE, A WASTE PRODUCT FROM
THE GRINDING OF SUGAR CANE.  IT BEGAN PRODUCTION IN 1929.  SEVERAL
PATENTS WERE ISSUED TO IT.  LATE IN 1928, MASONITE NOTIFIED CELOTEX
THAT ITS HARDBOARD INFRINGED MASONITE'S PATENTS.  VARIOUS DISCUSSIONS
WERE HAD WITH A VIEW OF AVOIDING PATENT LITIGATION BY ENTERING INTO A
CROSS-LICENSING AGREEMENT.  MASONITE REFUSED.  CELOTEX CONTINUED TO
MANUFACTURE AND SELL HARDBOARD.  ITS PRODUCTION INCREASED FROM ABOUT
800,000 SQUARE FEET IN 1929 TO ABOUT 12,000,000 SQUARE FEET IN 1933. 
IT SOLD ITS PRODUCT IN COMPETITION WITH MASONITE'S HARDBOARD AND
MARKETED IT AT PRICES LOWER THAN MASONITE SOLD ITS HARDBOARD.  IN 1931,
MASONITE INSTITUTED SUIT AGAINST CELOTEX FOR INFRINGEMENT OF ONE OF ITS
PATENTS.  THE DISTRICT COURT HELD MASONITE'S PATENT VALID BUT NOT
INFRINGED.  1 F.SUPP.  494.  MASONITE APPEALED.  THE CIRCUIT COURT OF
APPEALS HELD THAT MASONITE'S PATENT WAS BOTH VALID AND INFRINGED.  66
F.2D 451.  A PETITION FOR A WRIT OF CERTIORARI WAS FILED IN THIS COURT
IN SEPTEMBER, 1933.  ABOUT THAT TIME MASONITE RENEWED NEGOTIATIONS WITH
CELOTEX.  THOSE NEGOTIATIONS RESULTED IN A SETTLEMENT OF THE PATENT
LITIGATION AND IN THE EXECUTION OF THE SO-CALLED "AGENCY" AGREEMENT OF
OCTOBER 10, 1933  FN1  - ONE OF THE AGREEMENTS WHICH IS HERE ATTACKED
AND WHICH WE DISCUSS LATER. 

SHORTLY AFTER THE DECISION OF THE CIRCUIT COURT OF APPEALS IN THE
PATENT LITIGATION BETWEEN CELOTEX AND MASONITE, THE LATTER COMPANY SENT
THE SAME PROPOSED "AGENCY" AGREEMENT WHICH IT HAD WORKED OUT WITH
CELOTEX TO VARIOUS OF THE APPELLEES.  JOHNS-MANVILLE SALES CORPORATION,
NATIONAL GYPSUM COMPANY, ARMSTRONG NEWPORT COMPANY (PREDECESSOR OF
ARMSTRONG CORK COMPANY), HAWAIIAN CANE PRODUCTS LTD. (ASSIGNOR OF
CERTAIN-TEED PRODUCTS CORPORATION), AND WOOD CONVERSION COMPANY EACH
EXECUTED IDENTICAL AGREEMENTS WITH MASONITE ON VARIOUS DATES BETWEEN
OCTOBER 31, 1933 AND JUNE 25, 1934.  AS EACH AGREEMENT WAS MADE,
MASONITE INFORMED THE OTHER PARTY OF THE EXISTENCE AND TERMS OF EACH OF
THE AGREEMENTS WHICH MASONITE HAD PREVIOUSLY MADE WITH THE OTHERS.  AND
AS EACH CONTRACT WAS EXECUTED, MASONITE SENT COPIES TO THE COMPANIES
WHICH HAD PREVIOUSLY EXECUTED SIMILAR CONTRACTS. 

INSULITE, A MANUFACTURER OF INSULATION BOARD, BEGAN PRODUCING
HARDBOARD IN 1930.  ITS PRODUCTION ROSE FROM ABOUT 4,500,000 SQUARE
FEET IN 1932 TO ABOUT 9,000,000 SQUARE FEET IN 1933, AND AMOUNTED TO
OVER 7,000,000 SQUARE FEET ANNUALLY IN 1934 AND 1935.  THERE WAS SOME
EVIDENCE THAT IT WAS SELLING HARDBOARD AT PRICES LOWER THAN THOSE OF
MASONITE.  IT WAS ADVISED BY MASONITE IN JULY, 1933, OF POSSIBLE LEGAL
ACTION IF IT CONTINUED TO MANUFACTURE AND SELL HARDBOARD.  IT RECEIVED
FROM MASONITE A COPY OF THE PROPOSED "AGENCY" AGREEMENT.  IT FORMALLY
ADVISED MASONITE OF ITS REFUSAL TO ENTER INTO ANY SUCH AGREEMENT IN
DECEMBER, 1933.  IN MARCH, 1934, MASONITE FILED SUIT AGAINST A DEALER
WHO HANDLED INSULITE'S HARDBOARD CHARGING INFRINGEMENT OF ONE OF
MASONITE'S PATENTS.  INSULITE UNDERTOOK THE DEFENSE; BUT, BEFORE ISSUE
WAS JOINED, NEGOTIATIONS BETWEEN INSULITE AND MASONITE RESULTED IN THE
EXECUTION IN FEBRUARY, 1935 OF A SO-CALLED "AGENCY" AGREEMENT
SUBSTANTIALLY IDENTICAL WITH THE AGREEMENT BETWEEN MASONITE AND
CELOTEX.  FN2  AT THAT TIME, INSULITE KNEW THAT MASONITE AND THE OTHER
COMPANIES HAD PREVIOUSLY EXECUTED THE OTHER AGREEMENTS. 

DISPUTES AROSE BETWEEN MASONITE AND THE SO-CALLED "AGENTS" CONCERNING
THE OPERATION AND CONSTRUCTION OF THE "AGENCY" AGREEMENTS.  AS A
RESULT, THE AGREEMENTS WERE MODIFIED IN 1936.  EACH AGREEMENT WHEN
EXECUTED IN 1936 WAS PLACED IN ESCROW.  THE ESCROW AGREEMENT WAS SIGNED
BY EACH OF THE COMPANIES AND INCLUDED THE NAME OF EACH OF THE OTHER
"AGENTS."  EACH "AGENT" KNEW AT THAT TIME THAT MASONITE PROPOSED TO
MAKE SUBSTANTIALLY IDENTICAL AGREEMENTS WITH THE OTHERS.  THE ESCROW
AGREEMENT PROVIDED THAT IT SHOULD BECOME EFFECTIVE ONLY WHEN ALL THE
"AGENTS" HAD AGREED TO IT. THE NEW AGREEMENTS BECAME EFFECTIVE OCTOBER
29, 1936.  IN 1937, FLINTKOTE COMPANY AND DANT & RUSSELL, INC. ENTERED
INTO IDENTICAL AGREEMENTS WITH MASONITE.  THOUGH THEIR AGREEMENTS
DIFFERED SOMEWHAT FROM THE 1936 AGREEMENTS, THEY WERE SUBSTANTIALLY
SIMILAR FOR PRESENT PURPOSES.  BOTH COMPANIES KNEW, WHEN THEY SIGNED
THE CONTRACTS, THAT SIMILAR "AGENCY" AGREEMENTS EXISTED BETWEEN
MASONITE AND THE OTHER APPELLEES. 

BY EACH OF THE 1933 AGREEMENTS, MASONITE DESIGNATED THE OTHER PARTY
AS AN "AGENT" AND APPOINTED IT AS A "DEL CREDERE FACTOR" TO SELL
MASONITE'S HARDBOARD PRODUCTS.  THE "AGENT" EXPRESSLY ACKNOWLEDGED THE
VALIDITY OF MASONITE'S HARDBOARD PATENTS SO LONG AS THE AGREEMENT
REMAINED IN FORCE.  THE "AGENT" AGREED TO PROMOTE THE SALE OF MASONITE
HARDBOARDS.  MASONITE AGREED TO MANUFACTURE DESIGNATED HARDBOARD
PRODUCTS IN SPECIFIED SIZES AND TO SHIP ON ORDERS AND SPECIFICATIONS
FROM THE "AGENT" TO ANY PLACE WITHIN THE CONTINENTAL UNITED STATES OR
HAWAII.  MASONITE AGREED TO DESIGNATE FROM TIME TO TIME THE MINIMUM
SELLING PRICE AND THE MAXIMUM TERMS AND CONDITIONS OF SALE AT WHICH THE
"AGENT" MIGHT SELL MASONITE'S PRODUCTS.  THE LIST PRICES AND TERMS OF
SALE WERE TO BE THE MINIMUM PRICES AND MAXIMUM TERMS OF SALE AT WHICH
MASONITE WAS EITHER OFFERING OR MAKING SALES TO ITS CUSTOMERS.  THE
RIGHT TO CHANGE THE LIST PRICES AND TERMS OF SALE WAS VESTED SOLELY IN
MASONITE AND MIGHT BE EXERCISED ON 10 DAYS' NOTICE.  IT WAS AGREED THAT
MASONITE WAS BOUND TO ADHERE TO THE PRICES, AND TERMS AND CONDITIONS OF
SALE WHICH IT FIXED FOR ITS "AGENTS."  IN CASE THE "AGENT" SOLD FOR
LESS THAN THE MINIMUM PRICE, IT WAS OBLIGATED TO PAY LIQUIDATED DAMAGES
AT A SPECIFIED RATE.  ON DIRECT SHIPMENTS TO THE "AGENT," THE
HARDBOARDS "SHALL BE RECEIVED AND HELD ON CONSIGNMENT" AND "TITLE
THERETO SHALL REMAIN" IN MASONITE UNTIL SOLD BY THE "AGENT."  THE
MINIMUM PRICES WERE F.O.B. MASONITE'S FACTORY, THE "AGENT" PAYING
FREIGHT AND TRANSPORTATION COSTS, AND SALES AND OTHER TAXES.  THE
"AGENT" ALSO AGREED AT ITS EXPENSE TO CARRY INSURANCE ON ALL PRODUCTS
CONSIGNED TO IT.  THE "AGENT'S" COMPENSATION WAS FIXED BY WAY OF
SPECIFIED COMMISSIONS ON EACH SALE.  THE "AGENT" WAS PROHIBITED FROM
MAKING SALES (EXCEPT FOR OFF-SIZED BOARDS) TO ANY PERSON OTHER THAN
SPECIFIED CLASSES.  THOSE PROVISIONS PERMITTED THE "AGENT" TO SELL ONLY
TO THE CONSTRUCTION INDUSTRY, THE INDUSTRIAL MARKET BEING RESERVED FOR
MASONITE.  THE "AGENT" AGREED TO COMPENSATE MASONITE BY ADVANCING ONE
HALF OF THE DIFFERENCE BETWEEN THE LIST PRICE AND THE AGENT'S DISCOUNT
WITHIN 20 DAYS AFTER THE CLOSE OF THE MONTH IN WHICH THE ORDER WAS
SHIPPED, AND THE BALANCE WITHIN 20 DAYS AFTER THE CLOSE OF THE MONTH IN
WHICH THE PRODUCTS WERE SOLD BY THE "AGENT" TO ITS CUSTOMERS.  IN CASE
OF DIRECT SHIPMENTS BY MASONITE TO THE CUSTOMERS OF THE "AGENT," THE
LATTER AGREED TO PAY THE ENTIRE AMOUNT DUE MASONITE WITHIN 20 DAYS
AFTER THE CLOSE OF THE MONTH IN WHICH THE SHIPMENT WAS MADE.  THE
"AGENT" AGREED NOT TO USE THE TRADE NAME OR THE TRADE MARKS OF
MASONITE.  BUT THE LATTER AGREED TO MARK, WITHOUT EXTRA COST, ALL
HARDBOARD WITH THE "AGENT'S" OR ITS CUSTOMER'S NAME OR TRADE MARK, IF
THE "AGENT" OR CUSTOMERS SO DESIRED.  AND MASONITE RESERVED THE RIGHT
TO MARK ALL PRODUCTS SOLD BY THE "AGENT" WITH MASONITE'S PATENT
NOTICE.  MASONITE WARRANTED THAT THE PRODUCTS WERE TO BE "GOOD,
WORKMANLIKE PRODUCTS OF A CHARACTER AND QUALITY EQUAL TO THAT CURRENTLY
MANUFACTURED BY IT AND SOLD TO ITS CUSTOMERS."  ITS LIABILITY WAS TO BE
LIMITED TO REPLACING, WITHOUT COST TO THE "AGENT," ANY "DEFECTIVE
MATERIAL WHEN THE DEFECT IS ONE OF MANUFACTURE."  THE "AGENT" AGREED TO
MAKE MONTHLY REPORTS ON INVENTORY CONSIGNED AND ON HAND.  FOR ANY
DEFAULT OF THE "AGENT," MASONITE COULD TERMINATE THE ARRANGEMENT ON 30
DAYS' NOTICE.  MASONITE COULD ALSO TERMINATE IN CASE OF THE BANKRUPTCY,
RECEIVERSHIP, OR INSOLVENCY OF THE "AGENT," OR IN CASE THE "AGENT"
FAILED TO ORDER FROM MASONITE AT LEAST 1,500,000 SQUARE FEET OF
HARDBOARD PRODUCTS FOR ANY SIX MONTHS' PERIOD.  THE "AGENT" COULD
TERMINATE THE AGREEMENT ON SIX MONTHS' WRITTEN NOTICE.  ON TERMINATION
OF THE AGREEMENT, THE "AGENT" AGREED TO "PURCHASE AND PAY FOR ALL
PRODUCTS CONSIGNED TO IT AND UNSOLD"; OR, AT THE OPTION OF MASONITE,
THE LATTER MIGHT HAVE THE PRODUCTS RETURNED TO IT AND REFUND TO THE
"AGENT" ALL ADVANCES MADE BY THE "AGENT" TO OR FOR MASONITE'S ACCOUNT. 
MASONITE AGREED TO ISSUE TO THE "AGENT" AT ITS REQUEST "A LICENSE TO
MANUFACTURE AND SELL HARD BOARDS" UNDER ITS PATENTS ON SPECIFIED TERMS
AND CONDITIONS AND ON PAYMENT OF DESIGNATED SUMS - $200,000 IF THE
LICENSE WAS ISSUED BEFORE DECEMBER 31, 1934, AND DECREASING AMOUNTS IF
THE LICENSE WAS ISSUED AT SUBSEQUENT DATES.  MASONITE RESERVED THE
RIGHT TO INSPECT AND EXAMINE, THROUGH CERTIFIED PUBLIC ACCOUNTANTS, THE
PHYSICAL INVENTORY AND THE BOOKS AND RECORDS OF THE "AGENT" RELATING TO
THE TRANSACTIONS COVERED BY THE AGREEMENT.  MASONITE AGREED TO SAVE
HARMLESS AND PROTECT THE "AGENT" AND ITS CUSTOMERS AGAINST ANY CLAIM
THAT THE HARDBOARDS INFRINGED ANY PATENT OWNED BY OTHERS THAN THE
PARTIES TO THE AGREEMENT.  PROVISIONS FOR ARBITRATION AND FOR
ASSIGNMENT OF THE AGREEMENT WERE INCLUDED.  AND IT WAS PROVIDED THAT
THE AGREEMENT SHOULD CONTINUE "DURING THE LIFE OF THAT ONE" OF
SPECIFIED PATENTS OF MASONITE "HAVING THE LONGEST TERM TO RUN,
INCLUDING ANY REISSUES, EXTENSIONS OR IMPROVEMENTS THEREOF," UNLESS THE
AGREEMENT WAS SOONER TERMINATED BY EITHER PARTY.  EACH AGREEMENT HAD
ATTACHED A FORM OF "LICENSE" TO MANUFACTURE AND SELL, TO BE USED IN
CASE THE OPTION LICENSE WAS EXERCISED.  FN3 

WE NEED NOT STOP TO ANALYZE THE 1936 AGREEMENTS.  THEY CONTAINED
NUMEROUS CHANGES AND ELABORATIONS.  BUT THEY ARE NOT IMPORTANT FOR THE
PURPOSES OF THIS CASE, SINCE THE PATTERN OF THE RELATIONSHIP BETWEEN
APPELLEES WAS FIXED IN 1933 AND ITS FUNDAMENTAL CHARACTERISTICS WERE
MAINTAINED, NOT BASICALLY ALTERED, IN 1936.  NOR NEED WE STOP TO
EXPLORE ALL OF THE CONTENTIONS MADE BY THE UNITED STATES.  THEY INCLUDE
ARGUMENTS THAT THERE HAS BEEN AN ILLEGAL DIVISION OF MARKETS (ADDYSTON
PIPE & STEEL CO. V. UNITED STATES, 175 U.S. 211); THAT THE "AGENCY"
AGREEMENTS HAVE BEEN USED TO CONTROL UNLAWFULLY OTHER MATERIALS SOLD IN
COMBINATION WITH HARDBOARD, THE SUBJECT MATTER OF MASONITE'S PATENTS
(CARBICE CORP. V. AMERICAN PATENTS DEV.  CORP., 283 U.S. 27); THAT, IN
SOME INSTANCES, THE COMBINATION UNLAWFULLY CONTROLLED THE PRICE OF
HARDBOARD "OWNED" BY THE "AGENTS" (ETHYL GASOLINE CORP. V. UNITED
STATES, 309 U.S. 436); AND THAT THE ARRANGEMENT INCLUDED AGREEMENTS TO
SUPPRESS THE USE OF PATENTS, CONTRARY TO THE RULE OF STANDARD SANITARY
MFG. CO. V. UNITED STATES, 226 U.S. 20, AND STANDARD OIL CO. V. UNITED
STATES, 283 U.S. 163, 174.  BUT WE CAN PUT THESE CONTENTIONS TO ONE
SIDE WITHOUT EXPRESSING AN OPINION ON THEM.  FOR THERE IS ONE PHASE OF
THE CASE WHICH IS DECISIVE.  THAT IS THE AGREEMENT FOR PRICE-FIXING. 
BUT FOR MASONITE'S PATENTS AND THE DEL CREDERE AGENCY AGREEMENTS, THERE
CAN BE NO DOUBT THAT THIS IS A PRICE-FIXING COMBINATION WHICH IS
ILLEGAL PER SE UNDER THE SHERMAN ACT.  UNITED STATES V. TRENTON
POTTERIES CO., 273 U.S. 392; ETHYL GASOLINE CORP. V. UNITED STATES, 309
U.S. 436; UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150.  THAT
IS TRUE THOUGH THE DISTRICT COURT FOUND THAT, IN NEGOTIATING AND
ENTERING INTO THE FIRST AGREEMENTS, EACH APPELLEE, OTHER THAN MASONITE,
ACTED INDEPENDENTLY OF THE OTHERS, NEGOTIATED ONLY WITH MASONITE,
DESIRED THE AGREEMENT REGARDLESS OF THE ACTION THAT MIGHT BE TAKEN BY
ANY OF THE OTHERS, DID NOT REQUIRE AS A CONDITION OF ITS ACCEPTANCE
THAT MASONITE MAKE SUCH AN AGREEMENT WITH ANY OF THE OTHERS, AND HAD NO
DISCUSSIONS WITH ANY OF THE OTHERS.  IT IS NOT CLEAR AT WHAT PRECISE
POINT OF TIME EACH APPELLEE BECAME AWARD OF THE FACT THAT ITS CONTRACT
WAS NOT AN ISOLATED TRANSACTION BUT PART OF A LARGER ARRANGEMENT.  BUT
IT IS CLEAR THAT, AS THE ARRANGEMENT CONTINUED, EACH BECAME FAMILIAR
WITH ITS PURPOSE AND SCOPE.  HERE, AS IN INTERSTATE CIRCUIT, INC. V.
UNITED STATES, 306 U.S. 208, 226, "IT WAS ENOUGH THAT, KNOWING THAT
CONCERTED ACTION WAS CONTEMPLATED AND INVITED, THE DISTRIBUTORS GAVE
THEIR ADHERENCE TO THE SCHEME AND PARTICIPATED IN IT."  THE
CIRCUMSTANCES SURROUNDING THE MAKING OF THE 1936 AGREEMENTS AND THE
JOINDER IN 1937 OF THE TWO OTHER COMPANIES LEAVE NO ROOM FOR DOUBT THAT
ALL HAD AN AWARENESS OF THE GENERAL SCOPE AND PURPOSE OF THE
UNDERTAKING.  AS THIS COURT STATED IN THE INTERSTATE CIRCUIT CASE (P.
227):  "IT IS ELEMENTARY THAT AN UNLAWFUL CONSPIRACY MAY BE AND OFTEN
IS FORMED WITHOUT SIMULTANEOUS ACTION OR AGREEMENT ON THE PART OF THE
CONSPIRATORS.  ...  ACCEPTANCE BY COMPETITORS, WITHOUT PREVIOUS
AGREEMENT, OF AN INVITATION TO PARTICIPATE IN A PLAN, THE NECESSARY
CONSEQUENCE OF WHICH, IF CARRIED OUT, IS RESTRAINT OF INTERSTATE
COMMERCE, IS SUFFICIENT TO ESTABLISH AN UNLAWFUL CONSPIRACY UNDER THE
SHERMAN ACT."  AND AS RESPECTS STATEMENTS OF VARIOUS APPELLEES THAT
THEY DID NOT INTEND TO JOIN A COMBINATION OR TO FIX PRICES, WE NEED
ONLY SAY THAT THEY "MUST BE HELD TO HAVE INTENDED THE NECESSARY AND
DIRECT CONSEQUENCES OF THEIR ACTS AND CANNOT BE HEARD TO SAY THE
CONTRARY."  UNITED STATES V. PATTEN, 226 U.S. 525, 543.  NOR CAN THE
FACT THAT MASONITE ALONE FIXED THE PRICES, AND THAT THE OTHER APPELLEES
NEVER CONSULTED WITH MASONITE CONCERNING THEM, MAKE THE COMBINATION ANY
THE LESS ILLEGAL.  PRICES ARE FIXED WHEN THEY ARE AGREED UPON.  UNITED
STATES V. SOCONY-VACUUM OIL CO., SUPRA, P. 222.  THE FIXING OF PRICES
BY ONE MEMBER OF A GROUP, PURSUANT TO EXPRESS DELEGATION, ACQUIESCENCE,
OR UNDERSTANDING, IS JUST AS ILLEGAL AS THE FIXING OF PRICES BY DIRECT,
JOINT ACTION.  ID.  SINCE THERE WAS PRICE-FIXING, THE FACT THAT THERE
WERE BUSINESS REASONS WHICH MADE THE ARRANGEMENTS DESIRABLE TO THE
APPELLEES, THE FACT THAT THE EFFECT OF THE COMBINATION MAY HAVE BEEN TO
INCREASE THE DISTRIBUTION OF HARDBOARD, WITHOUT INCREASE OF PRICE TO
THE CONSUMER, OR EVEN TO PROMOTE COMPETITION BETWEEN DEALERS, OR THE
FACT THAT FROM OTHER POINTS OF VIEW THE ARRANGEMENTS MIGHT BE DEEMED TO
HAVE DESIRABLE CONSEQUENCES WOULD BE NO MORE A LEGAL JUSTIFICATION FOR
PRICE-FIXING THAN WERE THE "COMPETITIVE EVILS" IN THE SOCONY-VACUUM
CASE. 

BUT IT IS URGED THAT THE ARRANGEMENT IS SAVED FROM THE SHERMAN ACT BY
THE GENERAL ELECTRIC CASE.  THE DISTRICT COURT SO HELD, AS WE HAVE
NOTED.  IN THAT CONNECTION, THE DISTRICT COURT FOUND THAT MASONITE'S
PATENTS ON HARDBOARD WERE "FUNDAMENTAL AND BASIC," THAT THERE WAS NO
MONOPOLY OR RESTRAINT OTHER THAN THE MONOPOLY OR RESTRAINT GRANTED BY
THE PATENTS, THAT THE PARTIES HAD AN HONEST AND SINCERE INTENT TO
RECOGNIZE AND EXERCISE THE RIGHTS BELONGING TO MASONITE UNDER ITS
PATENTS, AND THAT THE AGREEMENTS CONSTITUTED A "TRUE AGENCY" TO CARRY
OUT THAT PURPOSE.  WE ASSUME ARGUENDO THAT THE PATENTS IN QUESTION,
OWNED BY MASONITE, ARE VALID.  BUT WE DO NOT AGREE THAT THE "AGENCY"
DEVICE SAVED THE ARRANGEMENT FROM THE SHERMAN ACT. 

DEL CREDERE AGENCY HAS AN ANCIENT LINEAGE AND HAS BEEN PUT TO
NUMEROUS BUSINESS AND MERCANTILE USES.  CHORLEY, DEL CREDERE, 45 LAW
QUARTERLY REV. 221; MECHEM, AGENCY (2D ED.)  CH. IV.  BUT, HOWEVER
USEFUL IT MAY BE IN ALLOCATING RISKS BETWEEN THE PARTIES AND
DETERMINING THEIR RIGHTS INTER SE, ITS TERMS DO NOT NECESSARILY CONTROL
WHEN THE RIGHTS OF OTHERS INTERVENE, WHETHER THEY BE CREDITORS OR THE
SOVEREIGN.  SEE KLAUS, SALE, AGENCY AND PRICE MAINTENANCE, 28 COL. L.
REV. 441, 443-450.  WE ASSUME IN THIS CASE THAT THE AGREEMENTS
CONSTITUTED THE APPELLEES AS DEL CREDERE AGENTS OF MASONITE.  BUT THAT
CIRCUMSTANCE DOES NOT PREVENT THE ARRANGEMENT FROM RUNNING AFOUL OF THE
SHERMAN ACT.  THE OWNER OF A PATENT CANNOT EXTEND HIS STATUTORY GRANT
BY CONTRACT OR AGREEMENT.  A PATENT AFFORDS NO IMMUNITY FOR A MONOPOLY
NOT FAIRLY OR PLAINLY WITHIN THE GRANT.  WE HAVE RECENTLY STATED IN
MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488, 492, THAT "THE PUBLIC
POLICY WHICH INCLUDES INVENTIONS WITHIN THE GRANTED MONOPOLY EXCLUDES
FROM IT ALL THAT IS NOT EMBRACED IN THE INVENTION.  IT EQUALLY FORBIDS
THE USE OF THE PATENT TO SECURE AN EXCLUSIVE RIGHT OR LIMITED MONOPOLY
NOT GRANTED BY THE PATENT OFFICE AND WHICH IT IS CONTRARY TO PUBLIC
POLICY TO GRANT."  BEYOND THE LIMITED MONOPOLY WHICH IS GRANTED, THE
ARRANGEMENTS BY WHICH THE PATENT IS UTILIZED ARE SUBJECT TO THE GENERAL
LAW.  STANDARD SANITARY MFG. CO. V. UNITED STATES, SUPRA; BOSTON STORE
V. AMERICAN GRAPHOPHONE CO., 246 U.S. 8, 25; ETHYL GASOLINE CORP. V.
UNITED STATES, SUPRA. 

WE DO NOT HAVE HERE ANY QUESTION AS TO THE VALIDITY OF A LICENSE TO
MANUFACTURE AND SELL, SINCE NONE OF THE "AGENTS" EXERCISED ITS OPTION
TO ACQUIRE SUCH A LICENSE FROM MASONITE.  HENCE WE NEED NOT REACH THE
PROBLEMS PRESENTED BY BEMENT V. NATIONAL HARROW CO., 186 U.S. 70, AND
THAT PART OF THE GENERAL ELECTRIC CASE WHICH DEALT WITH THE LICENSE TO
WESTINGHOUSE COMPANY.  RATHER, WE ARE CONCERNED HERE ONLY WITH A
LICENSE TO VEND.  BUT IT WILL NOT DO TO SAY THAT, SINCE THE PATENTEE
HAS THE POWER TO REFUSE A LICENSE, HE HAS THE LESSER POWER TO LICENSE
ON HIS OWN CONDITIONS.  THERE ARE STRICT LIMITATIONS ON THE POWER OF
THE PATENTEE TO ATTACH CONDITIONS TO THE USE OF THE PATENTED ARTICLE. 
AS CHIEF JUSTICE TANEY SAID IN BLOOMER V. MCQUEWAN, 14 HOW.  539, 549,
WHEN THE PATENTED PRODUCT "PASSES TO THE HANDS OF THE PURCHASER, IT IS
NO LONGER WITHIN THE LIMITS OF THE MONOPOLY.  IT PASSES OUTSIDE OF IT,
AND IS NO LONGER UNDER THE PROTECTION OF THE ACT OF CONGRESS."  AND SEE
ADAMS V. BURKE, 17 WALL.  453; HOBBIE V. JENNISON, 149 U.S. 355.  IN
APPLYING THAT RULE, THIS COURT HAS QUITE CONSISTENTLY REFUSED TO ALLOW
THE FORM INTO WHICH THE PARTIES CHOSE TO CAST THE TRANSACTION TO
GOVERN.  THE TEST HAS BEEN WHETHER OR NOT THERE HAS BEEN SUCH A
DISPOSITION OF THE ARTICLE THAT IT MAY FAIRLY BE SAID THAT THE PATENTEE
HAS RECEIVED HIS REWARD FOR THE USE OF THE ARTICLE.  STRAUS V. VICTOR
TALKING MACHINE CO., 243 U.S. 490; BOSTON STORE V. AMERICAN GRAPHOPHONE
CO., SUPRA.  AND SEE UNITED STATES V. UNIVIS LENS CO., ANTE, P. 241. 
IN DETERMINING WHETHER OR NOT A PARTICULAR TRANSACTION COMES WITHIN THE
RULE OF THE BLOOMER CASE, REGARD MUST BE HAD FOR THE DOMINANT CONCERN
OF THE PATENT SYSTEM.  AS STATED BY MR. JUSTICE STORY IN PENNOCK V.
DIALOGUE, 2 PET. 1, 19, THE PROMOTION OF THE PROGRESS OF SCIENCE AND
THE USEFUL ARTS IS THE "MAIN OBJECT"; REWARD OF INVENTORS IS SECONDARY
AND MERELY A MEANS TO THAT END.  OR, IN THE WORDS OF MR. JUSTICE DANIEL
IN KENDALL V. WINSOR, 21 HOW.  322, 329, "WHILST THE REMUNERATION OF
GENIUS AND USEFUL INGENUITY IS A DUTY INCUMBENT UPON THE PUBLIC, THE
RIGHTS AND WELFARE OF THE COMMUNITY MUST BE FAIRLY DEALT WITH AND
EFFECTUALLY GUARDED.  CONSIDERATIONS OF INDIVIDUAL EMOLUMENT CAN NEVER
BE PERMITTED TO OPERATE TO THE INJURY OF THESE."  AND SEE BLOUNT MFG.
CO. V. YALE & TOWNE MFG. CO., 166 F. 555. 

THAT MUST BE THE POINT OF DEPARTURE FOR DECISION ON THE FACTS OF
CASES SUCH AS THE PRESENT ONE LEST THE LIMITED PATENT PRIVILEGE BE
ENLARGED BY PRIVATE AGREEMENTS SO AS TO BY-PASS THE SHERMAN ACT.  ETHYL
GASOLINE CORP. V. UNITED STATES, SUPRA, PP. 456-459.  CERTAINLY IF THE
DEL CREDERE AGENCY DEVICE WERE GIVEN BROAD APPROVAL, WHOLE INDUSTRIES
COULD BE KNIT TOGETHER SO AS TO REGULATE PRICES AND SUPPRESS
COMPETITION.  THAT WOULD ALLOW THE PATENT OWNER, UNDER THE GUISE OF HIS
PATENT MONOPOLY, NOT MERELY TO SECURE A REWARD FOR HIS INVENTION BUT TO
SECURE PROTECTION FROM COMPETITION WHICH THE PATENT LAW, UNAIDED BY
RESTRICTIVE AGREEMENTS, DOES NOT AFFORD.  DOUBTLESS THERE IS A PROPER
AREA FOR UTILIZATION BY A PATENTEE OF A DEL CREDERE AGENT IN THE SALE
OR DISPOSITION OF THE PATENTED ARTICLE.  A PATENTEE WHO EMPLOYS SUCH AN
AGENT TO DISTRIBUTE HIS PRODUCT CERTAINLY IS NOT ENLARGING THE SCOPE OF
HIS PATENT PRIVILEGE IF IT MAY FAIRLY BE SAID THAT THAT DISTRIBUTION IS
PART OF THE PATENTEE'S OWN BUSINESS AND OPERATES ONLY TO SECURE TO HIM
THE REWARD FOR HIS INVENTION WHICH CONGRESS HAS PROVIDED.  BUT WHERE HE
UTILIZES THE SALES ORGANIZATION OF ANOTHER BUSINESS - A BUSINESS WITH
WHICH HE HAS NO INTIMATE RELATIONSHIP - QUITE DIFFERENT PROBLEMS ARE
POSED SINCE SUCH A REGIMENTATION OF A MARKETING SYSTEM IS PECULIARLY
SUSCEPTIBLE TO THE RESTRAINTS OF TRADE WHICH THE SHERMAN ACT CONDEMNS. 
AND WHEN IT IS CLEAR, AS IT IS IN THIS CASE, THAT THE MARKETING SYSTEMS
UTILIZED BY MEANS OF THE DEL CREDERE AGENCY AGREEMENTS ARE THOSE OF
COMPETITORS OF THE PATENTEE, AND THAT THE PURPOSE IS TO FIX PRICES AT
WHICH THE COMPETITORS MAY MARKET THE PRODUCT, THE DEVICE IS, WITHOUT
MORE, AN ENLARGEMENT OF THE LIMITED PATENT PRIVILEGE AND A VIOLATION OF
THE SHERMAN ACT.  IN SUCH A CASE THE PATENTEE EXHAUSTS HIS LIMITED
PRIVILEGE WHEN HE DISPOSES OF THE PRODUCT TO THE DEL CREDERE AGENT.  HE
THEN HAS, SO FAR AS THE SHERMAN ACT IS CONCERNED, NO GREATER RIGHTS TO
PRICE MAINTENANCE  FN4  THAN THE OWNER OF AN UNPATENTED COMMODITY WOULD
HAVE.  DR. MILES MEDICAL CO. V. JOHN D. PARKS & SONS CO., 220 U.S.
373.  OUR REASONS FOR THAT CONCLUSION ARE AS FOLLOWS: 

CONGRESS HAS PROVIDED THAT A PATENTEE SHALL HAVE THE "EXCLUSIVE RIGHT
TO MAKE, USE, AND VEND THE INVENTION OR DISCOVERY" FOR A LIMITED
PERIOD.  46 STAT. 376, 35 U.S.C. SEC. 40.  BUT THE SCOPE OF THE RIGHT
TO "VEND" CANNOT BE DETERMINED BY REFERENCE TO THE PRIVATE LAW OF SALES
ALONE.  SINCE PATENTS ARE PRIVILEGES RESTRICTIVE OF A FREE ECONOMY, THE
RIGHTS WHICH CONGRESS HAS ATTACHED TO THEM MUST BE STRICTLY CONSTRUED
SO AS NOT TO DEROGATE FROM THE GENERAL LAW BEYOND THE NECESSARY
REQUIREMENTS OF THE PATENT STATUTE.  UNITED STATES V. UNIVIS LENS CO.,
INC., SUPRA.  SO FAR AS THE SHERMAN ACT IS CONCERNED, THE RESULT MUST
TURN NOT ON THE SKILL WITH WHICH COUNSEL HAS MANIPULATED THE CONCEPTS
OF "SALE" AND "AGENCY" BUT ON THE SIGNIFICANCE OF THE BUSINESS
PRACTICES IN TERMS OF RESTRAINT OF TRADE. 

IN THIS CASE, SOME OF THE APPELLEES HAD PATENTS ON HARDBOARD, SOME
DID NOT.  BUT EACH WAS TIED TO MASONITE BY AN AGREEMENT WHICH EXPRESSLY
RECOGNIZED THE VALIDITY OF MASONITE'S PATENTS DURING THE LIFE OF THE
AGREEMENT AND WHICH REQUIRED THE DISTRIBUTION OF THE PATENTED PRODUCT
AT FIXED PRICES.  IN THE GENERAL ELECTRIC CASE, THE COURT THOUGHT THAT
THE PURPOSE AND EFFECT OF THE MARKETING PLAN WAS TO SECURE TO THE
PATENTEE ONLY A REWARD FOR HIS INVENTION.  WE CANNOT AGREE THAT THAT IS
TRUE HERE.  IN THIS CASE, THE PRICE REGULATION WAS BASED ON MUTUAL
AGREEMENT AMONG DISTRIBUTORS OF COMPETING PRODUCTS, SOME OF WHOM HAD
COMPETING PATENTS, AS WE HAVE NOTED.  NONE OF THESE PATENTS, EXCEPT
POSSIBLY SOME HELD BY CELOTEX, HAD BEEN HELD TO CONFLICT WITH OR
INFRINGE THE MASONITE PATENTS.  NOR ARE WE WARRANTED IN ASSUMING, IN
ABSENCE OF A DEFINITE ADJUDICATION, THAT ONE GRANT BY THE PATENT OFFICE
IS MORE VALID THAN ANOTHER.  IT IS TRUE THAT THE DISTRICT COURT FOUND
THAT, BOTH BEFORE AND AFTER THE AGREEMENTS IN QUESTION, THE VARIOUS
APPELLEES HAD BEEN ACTIVE IN ATTEMPTING TO FIND A SUBSTITUTE FOR THE
PATENTED HARDBOARD WHICH WOULD NOT INFRINGE MASONITE'S SO-CALLED
"BASIC" PATENTS; THAT THEY WERE NOT SUCCESSFUL IN THAT SEARCH; THAT THE
AGREEMENTS DID NOT DISCOURAGE OR DISSUADE THEM FROM THEIR EFFORTS TO
DISCOVER OR DEVELOP NON-INFRINGING PRODUCTS; THAT THEY WERE WILLING AND
INTENDED TO TERMINATE THEIR RESPECTIVE AGENCY AGREEMENTS WHENEVER IT
SHOULD BECOME COMMERCIALLY POSSIBLE TO OFFER A COMPETITIVE NON
INFRINGING PRODUCT; AND THAT MANY OF THE APPELLEES HAVE IN FACT
DISTRIBUTED PRODUCTS WHICH WERE IN MANY RESPECTS COMPETITIVE WITH
HARDBOARD.  BUT THOSE CIRCUMSTANCES ARE NOT CONTROLLING. 

THE POWER OF MASONITE TO FIX THE PRICE OF THE PRODUCT WHICH IT
MANUFACTURES, AND WHICH THE ENTIRE GROUP SELLS AND WITH RESPECT TO
WHICH ALL HAVE BEEN AND ARE NOW ACTUAL OR POTENTIAL COMPETITORS, IS A
POWERFUL INDUCEMENT TO ABANDON COMPETITION.  THE EXTENT TO WHICH THAT
INDUCEMENT IN A GIVEN CASE WILL HAVE OR HAS HAD THE DESIRED EFFECT IS
DIFFICULT, IF NOT IMPOSSIBLE, OF MEASUREMENT.  THE FORCES WHICH THAT
INFLUENCE PUTS TO WORK ARE SUBTLE AND INCALCULABLE.  ACTIVE AND
VIGOROUS COMPETITION THEN TENDS TO BE IMPAIRED, NOT FROM ANY PREFERENCE
OF THE PUBLIC FOR THE PATENTED PRODUCT, BUT FROM THE PREFERENCE OF THE
COMPETITORS FOR A MUTUAL ARRANGEMENT FOR PRICE-FIXING WHICH PROMISES
MORE PROFIT IF THE PARTIES ABANDON RATHER THAN MAINTAIN COMPETITION. 
THE PRESENCE OF COMPETING PATENTS SERVES MERELY TO ACCENTUATE THAT
TENDENCY AND TO UNDERLINE THE POTENCY OF THE FORCES AT WORK.  CONTROL
OVER PRICES THUS BECOMES AN ACTUAL OR POTENTIAL BRAKE ON COMPETITION. 
THIS KIND OF MARKETING DEVICE THUS, ACTUALLY OR POTENTIALLY, THROTTLES
OR SUPPRESSES COMPETING AND NON-INFRINGING PRODUCTS AND TENDS TO PLACE
A PREMIUM ON THE ABANDONMENT OF COMPETITION.  IT IS OUTSIDE OUR
COMPETENCE TO INQUIRE WHETHER THE RESULT WAS OR WAS NOT BENEFICENT, OR
WHETHER THE EVIL WAS OR WAS NOT REALIZED.  AS IN CASE OF AN APPRAISAL
OF THE REASONABLENESS OF PRICES WHICH ARE FIXED, SUCH A DETERMINATION
COULD SATISFACTORILY BE MADE "ONLY AFTER A COMPLETE SURVEY OF OUR
ECONOMIC ORGANIZATION AND A CHOICE BETWEEN RIVAL PHILOSOPHIES" (UNITED
STATES V. TRENTON POTTERIES CO., SUPRA, 273 U.S. AT P. 398) AND ONLY
AFTER WEIGHING A HOST OF INTANGIBLES.  UNITED STATES V. SOCONY-VACUUM
OIL CO., SUPRA.  THE POWER OF THIS TYPE OF COMBINATION TO INFLICT THE
KIND OF PUBLIC INJURY WHICH THE SHERMAN ACT CONDEMNS RENDERS IT ILLEGAL
PER SE.  IF IT WERE SANCTIONED IN THIS SITUATION, IT WOULD PERMIT THE
PATENTEE TO ADD TO HIS DOMAIN AT PUBLIC EXPENSE BY OBTAINING COMMAND
OVER A COMPETITOR.  HE WOULD THEN NOT ONLY SECURE A REWARD FOR HIS
INVENTION; HE WOULD ENHANCE THE VALUE OF HIS OWN TRADE POSITION BY
ELIMINATING OR IMPAIRING COMPETITION.  THAT WOULD BE NO MORE
PERMISSIBLE THAN A CONTRACT BETWEEN A COPYRIGHT OWNER AND ONE WHO HAS
NO COPYRIGHT, OR A CONTRACT BETWEEN TWO COPYRIGHT OWNERS OR PATENTEES,
TO RESTRAIN THE COMPETITIVE DISTRIBUTION OF THE COPYRIGHTED OR PATENTED
ARTICLES IN THE OPEN MARKET.  INTERSTATE CIRCUIT, INC. V. UNITED
STATES, SUPRA, P. 230.  AS STATED IN STANDARD SANITARY MFG. CO. V.
UNITED STATES, SUPRA, 226 U.S. AT P. 49, RIGHTS CONFERRED BY PATENTS
"DO NOT GIVE ANY MORE THAN OTHER RIGHTS AN UNIVERSAL LICENSE AGAINST
POSITIVE PROHIBITIONS.  THE SHERMAN LAW IS A LIMITATION OF RIGHTS,
RIGHTS WHICH MAY BE PUSHED TO EVIL CONSEQUENCES AND THEREFORE
RESTRAINED." 

SINCE THE TRANSACTIONS HERE CHALLENGED WERE IN INTERSTATE COMMERCE,
NO QUESTION AS TO THE VIOLATION OF THE SHERMAN ACT REMAINS. 

BUT IT IS URGED THAT THE AGREEMENTS MADE BY THE APPELLEES IN 1941,
AFTER THE PRESENT SUIT WAS INSTITUTED, MARK AN ABANDONMENT OF THE
FORMER COMBINATION; AND THAT, SINCE THE NEW ARRANGEMENT IS
UNOBJECTIONABLE, THERE IS NOTHING TO ENJOIN.  THE DIFFICULTY WITH THAT
CONTENTION IS THAT THE 1941 AGREEMENTS, THOUGH IMPROVED MODELS OF AN
AGENCY ARRANGEMENT, REMOVED NONE OF THE FEATURES WHICH WE HAVE FOUND TO
BE FATAL.  THEY STILL ARE UNMISTAKABLE PRICE-FIXING AGREEMENTS WITH
COMPETITORS.  AND IF THERE WERE ANY LINGERING DOUBT AS TO WHETHER THE
APPELLEES WERE PARTIES TO A CONSPIRACY, IT IS DISPELLED AT THIS POINT. 
A COMMITTEE OF THE APPELLEES WAS APPOINTED TO DRAFT THE NEW AGREEMENT. 
THE AGREEMENT WAS COMPLETED AFTER MEETINGS AT WHICH REPRESENTATIVES OF
ALL OF THE APPELLEES ATTENDED.  THE 1941 AGREEMENTS WERE THE PRODUCT OF
JOINT AND CONCERTED ACTION.  REVERSED. 

FN1  IN 1932, RECEIVERS FOR CELOTEX WERE APPOINTED BY THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND AN ANCILLARY
RECEIVER WAS APPOINTED BY THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS.  THE AGREEMENT WITH MASONITE WAS
AUTHORIZED BY THOSE COURTS. 

FN2  AT THE TIME INSULITE ENTERED INTO THIS AGREEMENT WITH MASONITE,
ITS PARENT COMPANY WAS IN RECEIVERSHIP IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MINNESOTA.  THE RECEIVERSHIP COURT AUTHORIZED
INSULITE TO EXECUTE THE AGREEMENT WITH MASONITE. 

FN3  THERE WERE IN SOME CASES SUPPLEMENTAL AGREEMENTS.  THUS, CELOTEX
AGREED TO WITHDRAW ITS PETITION FOR A WRIT OF CERTIORARI IN THIS COURT,
MASONITE WAIVED AN ACCOUNTING IN CONNECTION WITH THAT INFRINGEMENT
SUIT, AND EACH OF THE PARTIES AGREED TO PAY ITS OWN COSTS AND EXPENSES
INCURRED IN THAT LITIGATION.  IN THE CASE OF INSULITE, MASONITE AGREED
TO DISMISS THE PATENT SUIT WHICH IT HAD INSTITUTED AGAINST ONE OF
INSULITE'S DEALERS, WITHOUT PREJUDICE TO THE PATENT CLAIMS OF EITHER
PARTY.  MASONITE ALSO AGREED TO PURCHASE A PRESS FROM INSULITE, AND TO
LEASE THAT PRESS TO INSULITE ON CONDITION THAT ANY HARDBOARD MADE WITH
IT SHOULD BE OF THE TYPE THERETOFORE MANUFACTURED BY INSULITE AND
SHOULD NOT BE MARKETED EXCEPT "BY SALE FOR EXPORT ONLY."  MASONITE
COULD TERMINATE INSULITE'S RIGHT TO MANUFACTURE FOR EXPORT BY OFFERING
TO SELL INSULITE HARDBOARD FOR THAT PURPOSE.  THIS AGREEMENT WAS
WITHOUT PREJUDICE TO MASONITE'S RIGHTS OR THE RIGHTS OF ITS FOREIGN
LICENSEES UNDER MASONITE'S FOREIGN PATENTS. 

IN 1937, BOTH INSULITE AND MASONITE HAD APPLICATIONS FOR PATENTS
RELATING TO HARDBOARD PENDING IN THE PATENT OFFICE.  CERTAIN CLAIMS OF
THESE APPLICATIONS WERE INVOLVED IN INTERFERENCE PROCEEDINGS.  MASONITE
WAS CONTENDING THAT INSULITE WAS INFRINGING ITS PATENTS IN FINLAND.  BY
CONTRACT, THE INTERFERENCE PROCEEDINGS WERE SETTLED, IN 1938, BY
MASONITE CONCEDING PRIORITY TO CERTAIN PATENT CLAIMS OF INSULITE AND BY
INSULITE GIVING MASONITE AN EXCLUSIVE ROYALTY-FREE LICENSE UNDER ALL OF
INSULITE'S PATENTS AND PATENT APPLICATIONS RELATING TO HARDBOARD.  THE
LICENSE EXCLUDED INSULITE FROM USING THE PATENTS.  THE ALLEGED
INFRINGEMENT OF THE FINNISH PATENTS WAS SETTLED BY MASONITE ASSIGNING
ITS FINNISH PATENTS TO INSULITE. 

FN4  IT SHOULD BE NOTED IN THIS CONNECTION THAT THE MILLER-TYDINGS
ACT (50 STAT. 693) WHICH AMENDED SEC. 1 OF THE SHERMAN ACT SO AS TO
LEGALIZE CERTAIN TYPES OF RESALE PRICE AGREEMENTS EXPRESSLY EXCLUDED
"ANY CONTRACT OR AGREEMENT, PROVIDING FOR THE ESTABLISHMENT OR
MAINTENANCE OF MINIMUM RESALE PRICES ON ANY COMMODITY HEREIN INVOLVED,
BETWEEN MANUFACTURERS, OR BETWEEN PRODUCERS, OR BETWEEN WHOLESALERS, OR
BETWEEN BROKERS, OR BETWEEN FACTORS, OR BETWEEN RETAILERS, OR BETWEEN
PERSONS, FIRMS, OR CORPORATIONS IN COMPETITION WITH EACH OTHER." 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON DID NOT PARTICIPATE IN
THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :

















REEVES V. BEARDALL, 316 U.S. 283 


NO. 841.  SUBMITTED APRIL 8, 1942.  - DECIDED MAY 11, 1942.  -
REVERSED. 


UNDER RULE 54(B) OF THE RULES OF CIVIL PROCEDURE A JUDGMENT WHICH
TERMINATES THE ACTION WITH RESPECT TO ONE OF SEVERAL CLAIMS JOINED IN A
COMPLAINT IS FINAL FOR PURPOSES OF APPEAL UNDER JUD.  CODE SEC. 128,
THOUGH THE OTHER CLAIMS REMAIN UNDISPOSED OF, WHERE THE SEVERAL CLAIMS
AROSE OUT OF WHOLLY SEPARATE AND DISTINCT TRANSACTIONS OR ENGAGEMENTS. 
P. 285. 

REEVES V. BEARDALL, EXECUTOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 315 U.S. 790, TO REVIEW A DECISION OF THE CIRCUIT COURT
OF APPEALS WHICH DISMISSED AN APPEAL UNDER JUD.  CODE SEC. 128 UPON THE
GROUND THAT THE JUDGMENT APPEALED FROM WAS NOT A FINAL JUDGMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION PRESENTED BY THIS CASE IS WHETHER THE CIRCUIT COURT
OF APPEALS COMMITTED ERROR IN DISMISSING THE APPEAL FROM THE DISTRICT
COURT ON THE GROUND THAT THE JUDGMENT IN QUESTION WAS "NOT FINAL." 

THE JURISDICTION OF THE DISTRICT COURT WAS INVOKED ON THE BASIS OF
DIVERSITY OF CITIZENSHIP.  THE COMPLAINT CONTAINED THREE COUNTS.  COUNT
I CONTAINED A CLAIM ON A PROMISSORY NOTE EXECUTED BY RESPONDENT'S
DECEDENT.  COUNT II CONTAINED A CLAIM ON AN ALLEGED CONTRACT BETWEEN
PETITIONER AND RESPONDENT'S DECEDENT, WHEREBY THE LATTER AGREED NOT TO
CHANGE HER WILL, IN CONSIDERATION OF PETITIONER'S RETURN OF CERTAIN
SECURITIES AND PETITIONER'S AGREEMENT NOT TO PRESS FOR PAYMENT OF THE
NOTE.  SPECIFIC PERFORMANCE, OR, IN THE ALTERNATIVE, DAMAGES EQUAL TO
THE NET VALUE OF THE ESTATE, WAS SOUGHT.  COUNT III CONTAINED A CLAIM
AGAINST ONE HAMER, WHO WAS ALLEGED TO HOLD CERTAIN ASSETS OF DECEDENT
TO WHICH PETITIONER WAS ENTITLED BY REASON OF THE CONTRACT ON WHICH
COUNT II WAS BASED.  THE PRAYER WAS FOR AN ACCOUNTING AGAINST HAMER. 
RESPONDENT MOVED TO DISMISS COUNTS II AND III.  THE MOTION WAS GRANTED,
WITH PERMISSION TO THE PETITIONER TO AMEND. COUNTS II AND III WERE
AMENDED IN RESPECTS NOT MATERIAL HERE.  RESPONDENT THEN MOVED TO
DISMISS COUNT II. PETITIONER HAVING ANNOUNCED THAT SHE DID NOT DESIRE
TO AMEND, THE COURT GRANTED THE MOTION AND ORDERED THAT "FINAL
JUDGMENT" BE ENTERED ON COUNT II IN FAVOR OF RESPONDENT.  AN APPEAL TO
THE CIRCUIT COURT OF APPEALS WAS DISMISSED WITHOUT OPINION, ON THE
GROUND THAT IT "WAS TAKEN FROM A JUDGMENT THAT IS NOT FINAL."  WE
GRANTED THE PETITION FOR CERTIORARI BECAUSE OF AN APPARENT CONFLICT
BETWEEN THAT DECISION AND SUCH CASES FROM OTHER CIRCUITS AS COLLINS V.
METRO-GOLDWYN PICTURES CORP., 106 F.2D 83. 

IN THIS TYPE OF CASE THE CIRCUIT COURT OF APPEALS HAS APPELLATE
JURISDICTION TO REVIEW BY APPEAL ONLY "FINAL DECISIONS."  JUDICIAL CODE
SEC. 128, 28 U.S.C. SEC. 225.  THE RULES OF CIVIL PROCEDURE PROVIDE:
"WHEN MORE THAN ONE CLAIM FOR RELIEF IS PRESENTED IN AN ACTION, THE
COURT AT ANY STAGE, UPON A DETERMINATION OF THE ISSUES MATERIAL TO A
PARTICULAR CLAIM AND ALL COUNTERCLAIMS ARISING OUT OF THE TRANSACTION
OR OCCURRENCE WHICH IS THE SUBJECT MATTER OF THE CLAIM, MAY ENTER A
JUDGMENT DISPOSING OF SUCH CLAIM.  THE JUDGMENT SHALL TERMINATE THE
ACTION WITH RESPECT TO THE CLAIM SO DISPOSED OF AND THE ACTION SHALL
PROCEED AS TO THE REMAINING CLAIMS.  IN CASE A SEPARATE JUDGMENT IS SO
ENTERED, THE COURT BY ORDER MAY STAY ITS ENFORCEMENT UNTIL THE ENTERING
OF A SUBSEQUENT JUDGMENT OR JUDGMENTS AND MAY PRESCRIBE SUCH CONDITIONS
AS ARE NECESSARY TO SECURE THE BENEFIT THEREOF TO THE PARTY IN WHOSE
FAVOR THE JUDGMENT IS ENTERED."  RULE 54(B).  THAT RULE, THE JOINDER
PROVISIONS (SEE RULES 13, 14, 18, 20), AND THE PROVISION OF RULE 42
WHICH PERMITS THE COURT TO ORDER A SEPARATE TRIAL OF ANY SEPARATE CLAIM
OR ISSUE, INDICATE A "DEFINITE POLICY" (COLLINS V. METRO-GOLDWYN
PICTURES CORP., SUPRA, P. 85) TO PERMIT THE ENTRY OF SEPARATE JUDGMENTS
WHERE THE CLAIMS ARE "ENTIRELY DISTINCT."  3 MOORE, FEDERAL PRACTICE,
CUM. SUPP. 1941, P. 96.  SUCH A SEPARATE JUDGMENT WILL FREQUENTLY BE A
FINAL JUDGMENT AND APPEALABLE, THOUGH NO DISPOSITION HAS BEEN MADE OF
THE OTHER CLAIMS IN THE ACTION.  BOWLES V. COMMERCIAL CASUALTY INS.
CO., 107 F.2D 169, 170.  THAT RESULT PROMOTES THE POLICY OF THE RULES
IN EXPEDITING APPEALS FROM JUDGMENTS WHICH "TERMINATE THE ACTION WITH
RESPECT TO THE CLAIM SO DISPOSED OF," THOUGH THE TRIAL COURT HAS NOT
FINISHED WITH THE REST OF THE LITIGATION.  SEE FEDERAL RULES OF CIVIL
PROCEDURE, PROCEEDINGS OF INSTITUTES, WASHINGTON & NEW YORK (1938), P.
329. 

THE RULES MAKE IT CLEAR THAT IT IS "DIFFERING OCCURRENCES OR
TRANSACTIONS, WHICH FORM THE BASIS OF SEPARATE UNITS OF JUDICIAL
ACTION."  ATWATER V. NORTH AMERICAN COAL CORP., 111 F.2D 125, 126.  AND
SEE MOORE, OP. CIT., 92-101; 49 YALE L. JOURN.  1476.  IF A JUDGMENT
HAS BEEN ENTERED WHICH TERMINATES THE ACTION WITH RESPECT TO SUCH A
CLAIM, IT IS FINAL FOR PURPOSES OF APPEAL UNDER SEC. 128 OF THE
JUDICIAL CODE.  THE JUDGMENT HERE IN QUESTION MEETS THAT TEST.  THE
CLAIM AGAINST RESPONDENT ON THE PROMISSORY NOTE WAS UNRELATED TO THE
CLAIM ON THE CONTRACT NOT TO CHANGE THE WILL.  THOSE TWO CLAIMS AROSE
OUT OF WHOLLY SEPARATE AND DISTINCT TRANSACTIONS OR ENGAGEMENTS.  AND
THE QUESTION AS TO HAMER'S LIABILITY TO ACCOUNT TO PETITIONER WOULD
ARISE ONLY IN THE EVENT THAT THE CLAIM ON THE CONTRACT NOT TO CHANGE
THE WILL WAS SUSTAINED.  HENCE NO QUESTION IS PRESENTED HERE AS
RESPECTS THE APPEALABILITY OF A JUDGMENT DISMISSING A COMPLAINT AS TO
ONE OF SEVERAL DEFENDANTS ALLEGED TO BE JOINTLY LIABLE ON THE SAME
CLAIM.  SEE HUNTEMAN V. NEW ORLEANS PUBLIC SERVICE, INC., 119 F.2D
465.  AFTER THE ENTRY OF THE JUDGMENT ON COUNT II, THE CLAIM BASED ON
THE CONTRACT NOT TO CHANGE THE WILL WAS TERMINATED AND COULD NOT BE
AFFECTED BY ANY ACTION WHICH THE COURT MIGHT TAKE AS RESPECTS THE
REMAINING CLAIMS.  NOTHING REMAINED TO BE DONE EXCEPT APPEAL. 

THE JUDGMENT THEREFORE WAS FINAL.  REVERSED. 
..END :
















SEMINOLE NATION V. UNITED STATES, 316 U.S. 286 


NO. 348.  ARGUED APRIL 1, 2, 1942.  - DECIDED MAY 11, 1942.  - 93
CT.CLS.  500, REVERSED IN PART. 


1.  A CLAIM AGAINST THE GOVERNMENT BY THE SEMINOLE NATION, BASED ON
ARTICLE VIII OF THE TREATY OF AUGUST 7, 1856, WHEREBY THE GOVERNMENT
UNDERTOOK TO PROVIDE A CERTAIN SUM ANNUALLY FOR TEN YEARS, TO BE USED
FOR SPECIFIED PURPOSES, BUT WHICH, IN THE AMOUNT CLAIMED, WAS DIVERTED
TO THE CLOTHING AND FEEDING OF REFUGEE INDIANS, HELD TO HAVE BEEN
RELEASED BY ARTICLE VIII OF THE TREATY OF MARCH 21, 1866, AND PROPERLY
DISALLOWED BY THE COURT OF CLAIMS.  P. 290. 

2.  PAYMENT BY THE GOVERNMENT TO THE TRIBAL TREASURER OF THE SEMINOLE
NATION, OF CERTAIN AMOUNTS WHICH, BY ARTICLE III OF THE TREATY OF 1866,
THE GOVERNMENT AGREED TO PAY FOR THE SUPPORT OF SCHOOLS, SATISFIED THE
OBLIGATION OF THE TREATY AND DEFEATS RECOVERY, WHETHER PAYMENT TO THE
TRIBAL TREASURER WAS AUTHORIZED OR NOT, SINCE THE SCHOOLS ACTUALLY
RECEIVED THE BENEFIT OF THE PAYMENTS.  P. 292. 

3.  UNDER SEC. 11 OF THE ACT OF APRIL 26, 1906, A SUM DUE UNDER
ARTICLE III OF THE TREATY OF 1866, WAS IN 1907 PROPERLY PAID BY THE
GOVERNMENT TO THE UNITED STATES INDIAN AGENT FOR THE SEMINOLES.  P.
292. 

4.  A PROVISION IN ARTICLE VI OF THE TREATY OF 1866, WHEREBY THE
GOVERNMENT UNDERTOOK TO CONSTRUCT AT A COST NOT EXCEEDING $10,000
"SUITABLE AGENCY BUILDINGS" ON THE SEMINOLE RESERVATION, HELD NOT
BREACHED.  P. 293. 

5.  IN RESPECT OF A CLAIM OF THE SEMINOLE NATION BASED ON THE
GOVERNMENT'S OBLIGATION, UNDER A PROVISION OF ARTICLE VIII OF THE
TREATY OF 1856, TO ESTABLISH A TRUST FUND IN A SPECIFIED AMOUNT AND TO
PAY THE INTEREST THEREFROM TO THE MEMBERS OF THE SEMINOLE NATION PER
CAPITA AS AN ANNUITY, HELD: 

(A)  THE COURT OF CLAIMS PROPERLY DEDUCTED THE AMOUNT OF OVERPAYMENTS
FOUND TO HAVE BEEN MADE BY THE GOVERNMENT IN CERTAIN YEARS.  P. 294. 

(B)  UNDER THE ACT OF 1906, WHICH WAS NOT REPEALED BY THE
JURISDICTIONAL ACT, PAYMENTS IN 1907, 1908, AND 1909 WERE PROPERLY MADE
TO THE UNITED STATES INDIAN AGENT FOR THE SEMINOLES.  P. 294. 

(C)  AS TO PAYMENTS MADE FROM 1870 TO 1874 DIRECTLY TO THE TRIBAL
TREASURER AND TO DESIGNATED CREDITORS, PURSUANT TO REQUESTS OF THE
SEMINOLE GENERAL COUNCIL, THE COURT OF CLAIMS SHOULD HAVE MADE
FINDINGS, SINCE THE ISSUE WAS MATERIAL, AS TO WHETHER THE GENERAL
COUNCIL, DURING THE YEARS IN QUESTION, WAS CORRUPT, VENAL, AND FALSE TO
ITS TRUST; WHETHER, IF SUCH WERE THE FACT, IT WAS KNOWN TO THE
ADMINISTRATIVE OFFICERS OF THE GOVERNMENT CHARGED WITH THE DISBURSEMENT
OF INDIAN MONEYS; AND WHETHER THE SEMINOLE NATION RECEIVED THE BENEFIT
OF ANY OF THE PAYMENTS.  THIS BRANCH OF THE CASE IS REMANDED TO THE
COURT OF CLAIMS IN ORDER THAT THE ESSENTIAL FINDINGS OF FACT MAY BE
MADE.  PP. 294, 300. 

6.  CERTAIN PAYMENTS MADE BY THE GOVERNMENT TO THE TRIBAL TREASURER
OF THE SEMINOLE NATION, AFTER THE PASSAGE OF THE CURTIS ACT OF JUNE 28,
1898, HELD NOT TO HAVE CONTRAVENED SEC. 19 OF THAT ACT, SINCE THAT
DISTRIBUTED BY THEM TO INDIVIDUAL MEMBERS OF THE TRIBE.  HOWEVER, THIS
BRANCH OF THE CASE ALSO IS REMANDED TO THE COURT OF CLAIMS FOR FURTHER
FINDINGS AS TO WHETHER FROM 1899 TO 1907 TRIBAL OFFICERS WERE MULCTING
THE SEMINOLE NATION; IF SO, WHETHER ADMINISTRATIVE OFFICERS OF THE
GOVERNMENT DISBURSING MONEYS TO THE SEMINOLES HAD KNOWLEDGE THEREOF;
AND WHETHER THE SEMINOLE NATION RECEIVED THE BENEFIT OF PAYMENTS MADE
TO THE TRIBAL TREASURER.  PP. 301, 307. 

7.  IN RESPECT TO AMOUNTS WHICH WERE EXPENDED GRATUITOUSLY BY THE
GOVERNMENT FOR THE BENEFIT OF THE SEMINOLE NATION, AND WHICH, UNDER ACT
OF AUGUST 12, 1935, MAY BE OFFSET AGAINST THE GOVERNMENT'S LIABILITY,
HELD THAT THE COURT OF CLAIMS SHOULD FIND AND DESIGNATE THE PRECISE
EXPENDITURES TO BE USED AS OFFSETS, INSTEAD OF FINDING GENERALLY ALL
THE ITEMS WHICH THE GOVERNMENT MAY EVER BE ENTITLED TO USE.  P. 308. 

SEMINOLE NATION V. UNITED STATES.* 

*OPINION REPORTED HEREIN AS AMENDED BY ORDER OF JUNE 8, 1942, POST,
P. 651. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 314 U.S. 597, TO REVIEW A JUDGMENT OF THE COURT OF
CLAIMS, AS MODIFIED ON MOTION FOR A NEW TRIAL, IN A SUIT BY THE
SEMINOLE NATION AGAINST THE GOVERNMENT, BROUGHT UNDER A SPECIAL
JURISDICTIONAL ACT OF AUGUST 16, 1937. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS SUIT TO ADJUDICATE CERTAIN CLAIMS OF THE SEMINOLE NATION AGAINST
THE UNITED STATES GROWING OUT OF VARIOUS TREATIES, AGREEMENTS, AND ACTS
OF CONGRESS IS NOW BEFORE US FOR THE SECOND TIME.  AFTER WE REVERSED,
299 U.S. 417, FOR WANT OF JURISDICTION IN THE COURT OF CLAIMS, A
PREVIOUS JUDGMENT OF THAT COURT AWARDING THE SEMINOLE NATION
$1,317,087.27,  FN1  THE JURISDICTIONAL BARRIER WAS REMOVED BY STATUTE,
FN2  AND THE SEMINOLE NATION THEN FILED A SECOND AMENDED PETITION IN
THE COURT OF CLAIMS, REASSERTING THE SIX ITEMS OF CLAIM PREVIOUSLY
DENIED BY THIS COURT ON JURISDICTIONAL GROUNDS.  FN3  THE COURT OF
CLAIMS THEREUPON DISALLOWED THREE ITEMS IN THEIR ENTIRETY, ALLOWED ONE
IN FULL, AND ALLOWED THE REMAINING TWO IN PART, DECIDING THAT THE
SEMINOLE NATION WAS ENTITLED TO $18,388.30, AGAINST WHICH THE UNITED
STATES WAS ENTITLED TO GRATUITY OFFSETS IN THE AMOUNT OF $705,337.33. 
FN4  ACCORDINGLY, THE SECOND AMENDED PETITION WAS ORDERED DISMISSED. 
FN5  WE GRANTED CERTIORARI ON A PETITION CHALLENGING THE CORRECTNESS OF
THE DECISION BELOW ON EACH OF THE FIVE ITEMS DISALLOWED IN WHOLE OR IN
PART, AND AS TO NUMEROUS ITEMS WHICH THE COURT INCLUDED IN ITS LIST OF
GRATUITY OFFSETS. 

                                  I 

WE ARE OF OPINION THAT PETITIONER, THE SEMINOLE NATION, IS ENTITLED
TO NO ADDITIONAL ALLOWANCE ON ITEMS ONE, THREE, AND FOUR OF ITS CLAIM. 

ITEM ONE. 

THIS ITEM IS A CLAIM FOR $61,563.42, BASED ON ARTICLE VIII OF THE
TREATY OF AUGUST 7, 1856, 11 STAT. 699, 702, WHEREBY THE GOVERNMENT
PROMISED THE SEMINOLE NATION: 

"TO PROVIDE ANNUALLY FOR TEN YEARS THE SUM OF THREE THOUSAND DOLLARS
FOR THE SUPPORT OF SCHOOLS; TWO THOUSAND DOLLARS FOR AGRICULTURAL
ASSISTANCE; AND TWO THOUSAND TWO HUNDRED DOLLARS FOR THE SUPPORT OF
SMITHS AND SMITH SHOPS  ...  " 

THE COURT OF CLAIMS FOUND THAT CONGRESS ANNUALLY MADE THE NECESSARY
APPROPRIATION OF $7,200 TO DISCHARGE THIS OBLIGATION DURING THE FISCAL
YEARS FROM 1858 TO 1867, INCLUSIVE; THAT ONLY $10,436.58 WAS ACTUALLY
EXPENDED FOR THE PURPOSES SPECIFIED IN THE TREATY; AND THAT THE BALANCE
($61,563.42) WAS DIVERTED AND DISBURSED BY THE GOVERNMENT PRIOR TO JUNE
30, 1866, FOR THE PURPOSE OF CLOTHING AND FEEDING REFUGEE AND DESTITUTE
INDIANS DRIVEN FROM THEIR HOMES DURING THE CIVIL WAR BECAUSE OF THEIR
LOYALTY TO THE UNION. 

PETITIONER'S CLAIM TO THE DIVERTED BALANCE WAS PROPERLY DISALLOWED
BECAUSE PETITIONER RELEASED ITS CLAIM BY ARTICLE VIII OF THE TREATY OF
MARCH 21, 1866, 14 STAT. 755, 759, WHICH PROVIDES: 

"THE STIPULATIONS OF THIS TREATY ARE TO BE A FULL SETTLEMENT OF ALL
CLAIMS OF SAID SEMINOLE NATION FOR DAMAGES AND LOSSES OF EVERY KIND
GROWING OUT OF THE LATE REBELLION, AND ALL EXPENDITURES BY THE UNITED
STATES OF ANNUITIES IN CLOTHING AND FEEDING REFUGEE AND DESTITUTE
INDIANS SINCE THE DIVERSION OF ANNUITIES FOR THAT PURPOSE, CONSEQUENT
UPON THE LATE WAR WITH THE SO-CALLED CONFEDERATE STATES.  AND THE
SEMINOLES HEREBY RATIFY AND CONFIRM ALL SUCH DIVERSIONS OF ANNUITIES
HERETOFORE MADE FROM THE FUNDS OF THE SEMINOLE NATION BY THE UNITED
STATES.  AND THE UNITED STATES AGREE THAT NO ANNUITIES SHALL BE
DIVERTED FROM THE OBJECTS FOR WHICH THEY WERE ORIGINALLY DEVOTED BY
TREATY STIPULATIONS WITH THE SEMINOLES, TO THE USE OF REFUGEE AND
DESTITUTE INDIANS, OTHER THAN THE SEMINOLES OR MEMBERS OF THE SEMINOLE
NATION, AFTER THE CLOSE OF THE PRESENT FISCAL YEAR, JUNE THIRTIETH,
EIGHTEEN HUNDRED AND SIXTY-SIX." 

IT IS UNNECESSARY TO CONSIDER PETITIONER'S CONTENTION THAT BY THIS
ARTICLE IT DID NOT RATIFY THE DIVERSIONS IN QUESTION BECAUSE THEY WERE
MADE FROM THE FUNDS OF THE UNITED STATES AND NOT FROM FUNDS OF THE
SEMINOLE NATION.  THE FIRST SENTENCE OF ARTICLE VIII OF TREATY OF 1866,
QUOTED ABOVE, CONSTITUTES A RELEASE TO THE UNITED STATES OF ALL
EXPENDITURES OF ANNUITIES DIVERTED FOR THE PURPOSE OF CLOTHING AND
FEEDING REFUGEE INDIANS.  THERE IS NO REQUIREMENT THAT THE ANNUITIES
THERE REFERRED TO MUST BE DERIVED "FROM THE FUNDS OF THE SEMINOLE
NATION," AND THERE IS NO INDICATION THAT THE RELEASES CONTAINED IN THE
FIRST SENTENCE OF ARTICLE VIII ARE DEPENDENT UPON THE RATIFICATION
CONTAINED IN THE SECOND SENTENCE.  THE PAYMENTS DUE THE SEMINOLE NATION
UNDER ARTICLE VIII OF THE TREATY OF 1856 CLEARLY COME WITHIN THE SCOPE
OF THE RELEASE - BEING ANNUAL PAYMENTS, THEY WERE ANNUITIES, AND THEY
WERE DIVERTED FOR THE PURPOSE OF CLOTHING AND FEEDING REFUGEE INDIANS. 

ITEM THREE. 

THIS CLAIM FOR $61,347.20 GROWS OUT OF ARTICLE III OF THE TREATY OF
1866, IN WHICH THE GOVERNMENT AGREED TO ESTABLISH A $50,000 TRUST FUND
FOR THE SEMINOLE NATION AND TO PAY THEREON ANNUAL INTEREST OF 5%
($2,500) FOR THE SUPPORT OF SCHOOLS. 

DURING THE PERIOD FROM 1867 TO 1874, THE GOVERNMENT ONLY PARTIALLY
DISCHARGED THIS ANNUAL OBLIGATION, DISBURSING ONLY $16,902.80 OF THE
$20,000 APPROPRIATED FOR THAT PURPOSE.  IT IS HERE UNDISPUTED THAT, AS
THE COURT OF CLAIMS HELD, PETITIONER IS ENTITLED TO THE DEFICIENCY OF
$3,097.20. 

THE COURT OF CLAIMS CORRECTLY DISALLOWED THE BALANCE OF THIS ITEM. 
DURING THE TWENTY-THREE YEARS FROM 1875 TO 1898, THE ANNUAL PAYMENTS,
AMOUNTING IN ALL TO $57,500, WERE PAID DIRECTLY TO THE TRIBAL
TREASURER.  SINCE THAT OFFICIAL DISBURSED ANNUALLY NOT LESS THAN $2,500
IN EXCESS OF AMOUNTS HE WAS OTHERWISE OBLIGATED TO EXPEND FOR THE
MAINTENANCE OF SCHOOLS,  FN6  THERE IS NO NEED TO INQUIRE WHETHER
PAYMENT TO THAT OFFICIAL WAS AUTHORIZED.  THE SCHOOLS ACTUALLY RECEIVED
THE BENEFIT OF THE MONEY.  THAT SATISFIED THE OBLIGATION OF THE TREATY
AND DEFEATS RECOVERY. 

THE REMAINDER OF THIS ITEM, $750, WAS PAID TO THE UNITED STATES
INDIAN AGENT FOR THE SEMINOLES IN 1907.  SUCH PAYMENT WAS PROPER UNDER
SEC. 11 OF THE ACT OF APRIL 26, 1906, C. 1876, 34 STAT. 137, 141,  FN7
AND NOTHING IN THE APPLICABLE JURISDICTIONAL ACT  FN8  INDICATES ANY
INTENTION ON THE PART OF CONGRESS TO OVERRIDE OR REPEAL THE ACT OF
1906. 

ITEM FOUR. 

THE GOVERNMENT AGREED IN ARTICLE VI OF THE TREATY OF 1866 TO
CONSTRUCT, "AT AN EXPENSE NOT EXCEEDING TEN THOUSAND ($10,000) DOLLARS,
SUITABLE AGENCY BUILDINGS" ON THE SEMINOLE RESERVATION.  IN 1870 AND
1872, $931.76 WAS EXPENDED FOR AGENCY BUILDINGS AND REPAIRS. 
PETITIONER'S CLAIMS FOR THE DIFFERENCE OF $9,068.24 BETWEEN THIS SUM
AND $10,000 IS WITHOUT MERIT.  IN 1872, CONGRESS APPROPRIATED $10,000
TO FULFILL THIS TREATY OBLIGATION; FN9  $9,030.15 OF THIS APPROPRIATION
WAS EXPENDED FOR SOME UNDISCLOSED PURPOSE, AS ONLY $969.85 WAS RETURNED
TO SURPLUS.  THE COURT OF CLAIMS FOUND THAT AN AGENCY BUILDING WAS
ERECTED ON THE SEMINOLE RESERVATION IN 1873.  FN10 PETITIONER MAKES NO
CLAIM THAT THE BUILDING ERECTED WAS UNSUITABLE.  SINCE THE GOVERNMENT'S
PROMISE WAS NOT TO EXPEND $10,000, BUT TO ERECT SUITABLE BUILDINGS AT A
COST NOT IN EXCESS OF $10,000, IT FOLLOWS THAT THERE WAS NO VIOLATION
OF THE TREATY PROVISION, AND HENCE NO RIGHT OF RECOVERY. 

                                  II 

WITH RESPECT TO ITEMS TWO AND FIVE WE ARE OF OPINION THAT THE CAUSE
MUST BE REMANDED TO THE COURT OF CLAIMS FOR FURTHER MATERIAL FINDINGS
OF FACT. 

ITEM TWO. 

THIS IS A CLAIM FOR $154,551.28 BASED ON ONE OF THE PROVISIONS OF
ARTICLE VIII OF THE TREATY OF 1856, NAMELY, THE GOVERNMENT'S PROMISE TO
ESTABLISH A $500,000 TRUST FUND (ORIGINALLY TWO FUNDS OF $250,000
EACH), THE ANNUAL INTEREST THEREFROM ($25,000) TO BE PAID OVER TO THE
MEMBERS OF THE SEMINOLE NATION PER CAPITA AS AN ANNUITY.  THE FINDINGS
OF THE COURT OF CLAIMS SHOW THAT, ALTHOUGH CONGRESS APPROPRIATED
$25,000 ANNUALLY FOR EACH OF THE FISCAL YEARS IN CONTROVERSY (1867
1898, 1907-1909), THE GOVERNMENT DID IN FACT FAIL TO MAKE DIRECT PER
CAPITA DISBURSEMENTS OF A PORTION OF THE FUNDS APPROPRIATED IN 1867
1874, 1876, AND 1879, THE UNDERPAYMENTS FOR THOSE YEARS TOTALLING
$92,051.28, AND THAT ONE-HALF THE APPROPRIATION IN 1907 AND THE ENTIRE
APPROPRIATION IN 1908 AND 1909($62,500 IN ALL), INSTEAD OF BEING PAID
DIRECTLY TO THE INDIVIDUAL SEMINOLES, WAS PAID TO THE UNITED STATES
INDIAN AGENT FOR THE SEMINOLE NATION. 

THE COURT OF CLAIMS REDUCED PETITIONER'S CLAIM FOR $154,551.28, BASED
ON THESE UNDERPAYMENTS AND ALLEGED MISPAYMENTS, TO $13,501.10, ALLOWING
THE GOVERNMENT THREE SETOFFS, CONSISTING OF (A) OVERPAYMENTS OF
$12,127.54 MADE IN 1875, 1877, 1880, 1882, AND 1883; (B) PAYMENT OF
$62,500 MADE TO THE UNITED STATES INDIAN AGENT FOR THE SEMINOLES IN
1907, 1908, AND 1909; AND (C) PAYMENTS OF $66,422.64 MADE PURSUANT TO
REQUESTS OF THE SEMINOLE GENERAL COUNCIL DURING THE PERIOD FROM 1870 TO
1874. 

THE OVERPAYMENTS WERE RIGHTLY DEDUCTED, CF. WISCONSIN CENTRAL R. CO.
V. UNITED STATES, 164 U.S. 190, AND PETITIONER DOES NOT CONTEND
OTHERWISE.  NOR IS PETITIONER ENTITLED TO ANY PART OF THE $62,500 PAID
DIRECTLY TO THE INDIAN AGENT, FOR SUCH PAYMENTS WERE PROPER UNDER THE
ACT OF 1906, 34 STAT. 137, 141, WHICH, AS POINTED OUT IN THE DISCUSSION
OF ITEM THREE, ANTE, WAS NOT REPEALED BY THE JURISDICTIONAL ACT, 43
STAT. 133.  THERE IS THUS LEFT FOR CONSIDERATION ONLY THE PAYMENTS FROM
1870 TO 1874 MADE PURSUANT TO REQUESTS OF THE SEMINOLE GENERAL COUNCIL
AND TOTALLING $66,422.64; OF THIS AMOUNT, $37,500 WAS PAID DIRECTLY TO
THE TRIBAL TREASURER, AND THE REMAINING $28,922.64 TO DESIGNATED
CREDITORS. 

THE GOVERNMENT CONTENDS THAT, SINCE THOSE PAYMENTS WERE MADE AT THE
REQUEST OF THE TRIBAL COUNCIL, THE GOVERNING BODY OF A SEMIAUTONOMOUS
POLITICAL ENTITY, POSSESSING THE POWER TO ENTER INTO TREATIES AND
AGREEMENTS WITH THE UNITED STATES, THE TRIBE IS NOT NOW ENTITLED TO
RECEIVE PAYMENT A SECOND TIME; AND THAT, DESPITE THE FACT THAT THE
TREATY OF 1856 PROVIDED THAT THE PAYMENTS WERE TO BE MADE PER CAPITA
FOR THE BENEFIT OF EACH INDIVIDUAL INDIAN, THESE PAYMENTS AT THE
REQUEST OF THE GENERAL COUNCIL DISCHARGED THE TREATY OBLIGATION,
BECAUSE THE AGREEMENT WAS ONE BETWEEN THE UNITED STATES AND THE
SEMINOLE NATION AND NOT ONE BETWEEN THE UNITED STATES AND THE
INDIVIDUAL MEMBERS OF THE TRIBE. 

THE ARGUMENT FOR THE GOVERNMENT, HOWEVER SOUND IT MIGHT OTHERWISE BE,
FAILS TO RECOGNIZE THE IMPACT OF CERTAIN EQUITABLE CONSIDERATIONS AND
THE EFFECT OF THE FIDUCIARY DUTY OF THE GOVERNMENT TO ITS INDIAN
WARDS.  THE JURISDICTIONAL ACT, 43 STAT. 133, EXPRESSLY CONFERS
JURISDICTION ON THE COURT OF CLAIMS TO ADJUDICATE "ALL LEGAL AND
EQUITABLE CLAIMS," ARISING UNDER TREATY OR STATUTE, WHICH THE SEMINOLE
NATION MAY HAVE AGAINST THE UNITED STATES, AND THE SECOND AMENDED
PETITION AVERS: 

"THAT SINCE THE PASSAGE OF SAID ACT OF APRIL 15, 1874, IT WAS
REPORTED BY THE OFFICERS OF DEFENDANT (THE UNITED STATES) THAT THE
SEMINOLE TRIBAL OFFICIALS WERE MISAPPROPRIATING THE SEMINOLE TRIBAL
FUNDS ENTRUSTED TO THEM, AND ROBBING THE MEMBERS OF THE TRIBE OF AN
EQUAL SHARE OF THE TRIBAL INCOME.  THAT THE REPORTS OF THE DAWES
COMMISSION SHOW CONCLUSIVELY THAT THE GOVERNMENTS OF THE FIVE CIVILIZED
TRIBES WERE NOTORIOUSLY AND INCURABLY CORRUPT, THAT EVERY BRANCH OF THE
SERVICE WAS INFESTED WITH FAVORITISM, GRAFT AND CROOKEDNESS, AND THAT
BY SUCH METHODS THE TRIBAL OFFICERS ACQUIRED LARGE FORTUNES, WHILE THE
OTHER MEMBERS ENTITLED TO SHARE IN THE TRIBAL INCOME RECEIVED LITTLE
BENEFIT THEREFROM." 

IT IS A WELL ESTABLISHED PRINCIPLE OF EQUITY THAT A THIRD PARTY WHO
PAYS MONEY TO A FIDUCIARY FOR THE BENEFIT OF THE BENEFICIARY, WITH
KNOWLEDGE THAT THE FIDUCIARY INTENDS TO MISAPPROPRIATE THE MONEY OR
OTHERWISE BE FALSE TO HIS TRUST, IS A PARTICIPANT IN THE BREACH OF
TRUST AND LIABLE THEREFOR TO THE BENEFICIARY.  CF. DUNCAN V. JAUDON, 15
WALL.  165; MANHATTAN BANK V. WALKER, 130 U.S. 267.  SEE BOGERT, TRUSTS
AND TRUSTEES (1935), VOL. 4, SECS. 901, 955; SCOTT, TRUSTS (1939), VOL.
3, SEC. 321.1; AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW OF TRUSTS
(1935), SEC. 321.  THE SEMINOLE GENERAL COUNCIL, REQUESTING THE
ANNUITIES ORIGINALLY INTENDED FOR THE BENEFIT OF THE INDIVIDUAL MEMBERS
OF THE TRIBE, STOOD IN A FIDUCIARY CAPACITY TO THEM.  CONSEQUENTLY, THE
PAYMENTS AT THE REQUEST OF THE COUNCIL DID NOT DISCHARGE THE TREATY
OBLIGATION IF THE GOVERNMENT, FOR THIS PURPOSE THE OFFICIALS
ADMINISTERING INDIAN AFFAIRS AND DISBURSING INDIAN MONEYS, ACTUALLY
KNEW THAT THE COUNCIL WAS DEFRAUDING THE MEMBERS OF THE SEMINOLE
NATION. 

FURTHERMORE, THIS COURT HAS RECOGNIZED THE DISTINCTIVE OBLIGATION OF
TRUST INCUMBENT UPON THE GOVERNMENT IN ITS DEALINGS WITH THESE
DEPENDENT AND SOMETIMES EXPLOITED PEOPLE.  E.G., CHEROKEE NATION V.
GEORGIA, 5 PET. 1; UNITED STATES V. KAGAMA, 118 U.S. 375; CHOCTAW
NATION V. UNITED STATES, 119 U.S. 1; UNITED STATES V. PELICAN, 232 U.S.
442; UNITED STATES V. CREEK NATION, 295 U.S. 103; TULEE V. WASHINGTON,
315 U.S. 681.  IN CARRYING OUT ITS TREATY OBLIGATIONS WITH THE INDIAN
TRIBES, THE GOVERNMENT IS SOMETHING MORE THAN A MERE CONTRACTING
PARTY.  UNDER A HUMANE AND SELF IMPOSED POLICY WHICH HAS FOUND
EXPRESSION IN MANY ACTS OF CONGRESS  FN11  AND NUMEROUS DECISIONS OF
THIS COURT, IT HAS CHARGED ITSELF WITH MORAL OBLIGATIONS OF THE HIGHEST
RESPONSIBILITY AND TRUST.  ITS CONDUCT, AS DISCLOSED IN THE ACTS OF
THOSE WHO REPRESENT IT IN DEALINGS WITH THE INDIANS, SHOULD THEREFORE
BE JUDGED BY THE MOST EXACTING FIDUCIARY STANDARDS.  PAYMENT OF FUNDS
AT THE REQUEST OF A TRIBAL COUNCIL WHICH, TO THE KNOWLEDGE OF THE
GOVERNMENT OFFICERS CHARGED WITH THE ADMINISTRATION OF INDIAN AFFAIRS
AND THE DISBURSEMENT OF FUNDS TO SATISFY TREATY OBLIGATIONS, WAS
COMPOSED OF REPRESENTATIVES FAITHLESS TO THEIR OWN PEOPLE AND WITHOUT
INTEGRITY WOULD BE A CLEAR BREACH OF THE GOVERNMENT'S FIDUCIARY
OBLIGATION.  FN12  IF THOSE WERE THE CIRCUMSTANCES, EITHER HISTORICALLY
NOTORIOUS SO AS TO BE JUDICIALLY NOTICED OR OTHERWISE OPEN TO PROOF,
WHEN THE $66,422.64 WAS PAID OVER AT THE REQUEST OF THE SEMINOLE
GENERAL COUNCIL DURING THE PERIOD FROM 1870 TO 1874, THE SEMINOLE
NATION IS ENTITLED TO RECOVER THAT SUM, MINUS SUCH AMOUNTS AS WERE
ACTUALLY EXPENDED FOR THE BENEFIT OF THE NATION BY THE COUNCIL. 

HAVING FORMULATED THE PROPER RULE OF LAW, WE MUST EXAMINE THE FACTS
OF THIS CASE.  ALTHOUGH THE COURT OF CLAIMS HAD JURISDICTION OF THIS
ISSUE, FOR SUCH AN ACTION FOR BREACH OF FIDUCIARY DUTY GROWING OUT OF
TREATY OBLIGATIONS IS CLEARLY AN EQUITABLE CLAIM WITHIN THE MEANING OF
THE JURISDICTIONAL ACT, 43 STAT. 133, THE COURT DID NOT CONSIDER, AND
HENCE MADE NO FINDINGS ON THIS ISSUE.  WE THINK THE ISSUE MATERIAL. 
DURING THE PERIOD IN QUESTION, 1870-1874, THE ADMINISTRATION OF INDIAN
AFFAIRS AND THE DISBURSEMENT OF INDIAN MONEYS WERE LODGED WITH THE
DEPARTMENT OF THE INTERIOR.  THE COMMISSIONER OF INDIAN AFFAIRS, UNDER
THE GENERAL SUPERVISION OF THE SECRETARY OF THE INTERIOR, ACTIVELY
SUPERVISED THESE MATTERS.  FN13  THERE ARE AMPLE INDICATIONS IN THE
RECORD BEFORE US THAT THE SEMINOLE GENERAL COUNCIL WAS MULCTING THE
NATION AND THAT THE PROPER GOVERNMENT OFFICIALS MAY WELL HAVE HAD
KNOWLEDGE THEREOF AT THE TIME SOME, AT LEAST, OF THE PAYMENTS WERE
MADE.  FOR ABOUT THIS TIME THE COMMISSIONER OF INDIAN AFFAIRS RECEIVED
SEVERAL WARNINGS FROM HIS SUBORDINATES THAT "INJUSTICE TO THE MAJORITY"
OF THE SEMINOLES EXISTED,  FN14  THAT THE CHIEFS WERE IN THE HABIT "OF
TAKING OUT WHAT AMOUNT THEY CHOSE" FROM THE ANNUITIES,  FN15  THAT THE
SEMINOLES WERE "IN BAD HANDS,"  FN16  AND THAT THE CHIEFS INTENDED "TO
'GOBBLE' THE NEXT MONEY FOR THE PURPOSE OF KEEPING UP THEIR
GOVERNMENT."  N17  AND THE ACTING COMMISSIONER OF INDIAN AFFAIRS WAS
EVIDENTLY AWARE, IN 1872, OF THE POSSIBILITY THAT THE COUNCIL WAS
FAITHLESS, FOR HE DECLINED TO CHANGE THE METHOD OF PAYMENT AT THE
REQUEST OF THE SEMINOLE CHIEFS "UNTIL THE DEPARTMENT SHALL BE FULLY
SATISFIED THAT A PROPER DISPOSITION WILL BE MADE OF THE FUNDS IF PAID
IN THE MANNER PROPOSED BY THE CHIEFS."  FN18 

WE DO NOT SAY THAT ALL THIS ESTABLISHES LIABILITY ON THE PART OF THE
GOVERNMENT, FOR IT IS NOT OUR FUNCTION, IN REVIEWING JUDGMENTS OF THE
COURT OF CLAIMS, TO MAKE BASIC FINDINGS OF FACT.  WHEN THE COURT OF
CLAIMS FAILS TO MAKE FINDINGS ON A MATERIAL ISSUE, IT IS PROPER TO
REMAND THE CASE FOR SUCH FINDINGS.  CF. UNIVERSAL BATTERY CO. V. UNITED
STATES, 281 U.S. 580, 584-585.  WE DO THINK, HOWEVER, THAT THE MATTER
OUTLINED ABOVE WAS SUFFICIENT TO REQUIRE THE COURT OF CLAIMS TO MAKE
FINDINGS ON THIS MATERIAL ISSUE, THAT IS, FINDINGS AS TO WHETHER THE
SEMINOLE GENERAL COUNCIL, DURING THE YEARS 1870 TO 1874, WAS CORRUPT,
VENAL, AND FALSE TO ITS TRUST; WHETHER THE APPROPRIATE GOVERNMENT
OFFICIALS, CHARGED WITH THE DUTY OF ADMINISTERING INDIAN AFFAIRS AND
DISBURSING FUNDS TO THE SEMINOLES, KNEW OF THAT CORRUPTION, VENALITY,
AND FAITHLESSNESS, IF SUCH IN FACT EXISTED, WHEN ANY OF THE PAYMENTS IN
QUESTION WERE MADE AT THE REQUEST OF THE COUNCIL; AND, IF SO, WHETHER
THE NATION RECEIVED THE BENEFIT OF ANY OF THOSE PAYMENTS.  ACCORDINGLY,
THIS PHASE OF THE CASE MUST BE REMANDED SO THAT THE COURT OF CLAIMS CAN
CONSIDER SUCH RELEVANT EVIDENCE AND OTHER DATA AS MAY BE BROUGHT TO ITS
ATTENTION, MAKE THE NECESSARY FINDINGS OF FACT, AND THUS DETERMINE
WHETHER THIS CASE FITS INTO THE RULE WHICH WE HAVE ENUNCIATED. 

ITEM FIVE. 

THIS IS A CLAIM FOR THE MONEYS, $864,702.58 IN ALL, PAID TO THE
SEMINOLE TRIBAL TREASURER AFTER THE PASSAGE OF THE CURTIS ACT OF JUNE
28, 1898, C. 517, 30 STAT. 495, 502.  THE PAYMENTS WERE MADE DURING THE
FISCAL YEARS 1899 TO 1907 AND CONSISTED OF THE FOLLOWING ITEMS:  (A)
$212,500 PAID TO DISCHARGE THE PER CAPITA OBLIGATION UNDER ARTICLE VIII
OF THE TREATY OF 1856(SEE ITEM TWO, ANTE); (B) $29,750 PAID TO
DISCHARGE THE OBLIGATION OF ARTICLE III OF THE TREATY OF 1866 PROVIDING
FOR THE SUPPORT OF SCHOOLS (SEE ITEM THREE, ANTE) AND FOR THE SUPPORT
OF THE SEMINOLE GOVERNMENT; (C) $622,156.87 PAID PURSUANT TO SEC. 12 OF
THE ACT OF MARCH 2, 1889, C. 412, 25 STAT. 980, 1004, PROVIDING FOR THE
PAYMENT OF INTEREST AT FIVE PER CENTUM PER ANNUM ON $1,500,000 "TO BE
PAID SEMI-ANNUALLY TO THE TREASURER OF SAID NATION"; AND, (D) $295.71,
THE "PROCEEDS OF LABOR." 


"THAT NO PAYMENT OF ANY MONEYS ON ANY ACCOUNT WHATEVER SHALL
HEREAFTER BE MADE BY THE UNITED STATES TO ANY OF THE TRIBAL GOVERNMENTS
OR TO ANY OFFICER THEREOF FOR DISBURSEMENT, BUT PAYMENTS OF ALL SUMS TO
MEMBERS OF SAID TRIBES SHALL BE MADE UNDER DIRECTION OF THE SECRETARY
OF THE INTERIOR BY AN OFFICER APPOINTED BY HIM; AND PER CAPITA PAYMENTS
SHALL BE MADE DIRECT TO EACH INDIVIDUAL IN LAWFUL MONEY OF THE UNITED
STATES, AND THE SAME SHALL NOT BE LIABLE TO THE PAYMENT OF ANY
PREVIOUSLY CONTRACTED OBLIGATION." 

PETITIONER INSISTS THAT THIS SECTION PROHIBITED THE GOVERNMENT FROM
MAKING THE PAYMENTS IN QUESTION TO THE SEMINOLE TREASURER, AND THAT IT
IS ENTITLED TO RECOVER THE SUMS ILLEGALLY SO PAID. 

ASSUMING, WITHOUT DECIDING, THAT SEC. 19 IS APPLICABLE TO THE
SEMINOLE NATION AND THAT AN ACTION COULD BE BROUGHT BY THE NATION FOR
PAYMENTS MADE IN VIOLATION THEREOF, THERE CAN BE NO RECOVERY HERE
BECAUSE NONE OF THE PAYMENTS CONTRAVENED SEC. 19.  THE TEXT OF THAT
PAYMENTS TO TRIBAL OFFICERS WHICH ARE "FOR DISBURSEMENT" - I.E.,
PAYMENTS TO BE DISTRIBUTED BY THEM TO MEMBERS OF THE TRIBE.  IF THE
FIRST CLAUSE OF SEC. 19 IS CONSTRUED AS PROHIBITING ALL PAYMENTS TO THE
TRIBE OR ITS OFFICERS, THEN THE LATER CLAUSES, PROVIDING ONLY FOR
PAYMENTS TO MEMBERS AND PER CAPITA PAYMENTS, ARE INADEQUATE TO DISPOSE
OF THE PROBLEMS RAISED BY THE FIRST CLAUSE.  FOR THEN NO PROVISION IS
MADE FOR THE EXPENSES OF MAINTAINING AND CONDUCTING THE TRIBAL
GOVERNMENT, DESPITE THE FACT THAT THE SEMINOLE TRIBAL GOVERNMENT WAS
NOT ONLY TO CONTINUE AFTER THE CURTIS ACT BUT WAS IN FACT RELIEVED OF
THE NECESSITY OF SECURING PRESIDENTIAL APPROVAL OF ITS LEGISLATION
FN19  BY AN AGREEMENT RATIFIED THREE DAYS AFTER THE PASSAGE OF THAT
STATUTE.  SEE 30 STAT. 567, 569.  SECTION 19, AS ORIGINALLY INTRODUCED
IN THE HOUSE, PROVIDED THAT PAYMENTS OF "ALL EXPENSES INCURRED IN
TRANSACTING THEIR BUSINESS" WERE TO BE MADE UNDER THE DIRECTION OF THE
SECRETARY OF THE INTERIOR.  FN20  THE DELETION OF THIS CLAUSE IS
PERSUASIVE THAT CONGRESS INTENDED THAT TRIBAL OFFICERS SHOULD RETAIN
THE RIGHT TO DISBURSE THEIR FUNDS FOR THE EXPENSES OF THEIR RESPECTIVE
TRIBAL GOVERNMENTS.  FOR THESE REASONS WE THINK SEC. 19 PROHIBITS
PAYMENT BY THE GOVERNMENT TO THE TRIBAL TREASURER ONLY WHEN SUCH
PAYMENTS ARE TO BE DISTRIBUTED BY HIM TO MEMBERS OF THE TRIBE.  IT HAS
NO APPLICATION TO MONEY EARMARKED FOR EDUCATIONAL OR TRIBAL PURPOSES,
AND MONEY INTENDED FOR ANY PURPOSE THE TRIBE MAY DESIGNATE. 

NONE OF THE PAYMENTS IN QUESTION WERE FOR DISBURSEMENT TO THE
INDIVIDUAL MEMBERS OF THE SEMINOLE NATION.  WHILE THE SUM OF $212,500
WAS PAID PURSUANT TO ARTICLE VIII OF THE TREATY OF 1856, AND WHILE THAT
OBLIGATION WAS ORIGINALLY AN ANNUITY PAYABLE PER CAPITA TO THE
INDIVIDUAL SEMINOLES, THE CHARACTER AND PURPOSE OF THIS INTEREST
PAYMENT WERE BY AGREEMENT CHANGED INTO A PAYMENT FOR THE BENEFIT OF THE
SEMINOLE NATION ITSELF, AND THIS BEFORE THE PAYMENT OF THE $212,500
FROM 1899 TO 1907.  THE ACT OF APRIL 15, 1874, C. 97, 18 STAT. 29,
AUTHORIZED THE COMMISSIONER OF INDIAN AFFAIRS, WITH THE SANCTION OF THE
SECRETARY OF THE INTERIOR AND THE PRESIDENT, TO PAY THIS ANNUITY INTO
THE TREASURY OF THE SEMINOLE NATION, PROVIDED $5,000 WAS ANNUALLY
APPROPRIATED OUT OF THE ANNUITY BY THE GENERAL COUNCIL FOR THE SCHOOL
FUND, AND PROVIDED "THAT THE CONSENT OF SAID TRIBE TO SUCH EXPENDITURES
AND PAYMENT SHALL BE FIRST OBTAINED."  BY ACT OF THE SEMINOLE GENERAL
COUNCIL ON APRIL 2, 1879, THE SEMINOLE NATION ACCEPTED THE PROVISIONS
OF THE ACT OF 1874, AND CONSENTED THAT ALL ANNUITIES DUE OR TO BECOME
DUE UNDER ARTICLE VIII OF THE TREATY OF 1856 SHOULD BE PAID INTO THE
SEMINOLE TREASURY, TO BE USED AS THE TRIBAL COUNCIL SHOULD PROVIDE. 
THIS WAS A CONSENSUAL CONVERSION OF THE GOVERNMENT'S OBLIGATION FROM
PAYMENTS TO INDIVIDUALS TO PAYMENTS TO THE TRIBE, AND SEC. 19 OF THE
CURTIS ACT IS INAPPLICABLE TO THE $212,500 PAID PURSUANT TO THIS
CONVERTED AGREEMENT. 

WHILE NONE OF THE PAYMENTS WERE IN VIOLATION OF SEC. 19 OF THE CURTIS
ACT AND THERE CAN THEREFORE BE NO RECOVERY ON THAT SCORE, THE
GOVERNMENT IS NOT NECESSARILY RELIEVED OF ALL LIABILITY FOR THIS
$864,702.58 CLAIM.  THERE REMAINS FOR CONSIDERATION THE FIDUCIARY DUTY
OF THE GOVERNMENT, AS DISCUSSED IN ITEM TWO, ANTE.  DURING THIS PERIOD,
1899 TO 1907, AS FROM 1870 TO 1874, THE SECRETARY OF THE INTERIOR AND
THE COMMISSIONER OF INDIAN AFFAIRS SUPERVISED INDIAN MATTERS AND THE
DISBURSEMENT OF INDIAN MONEYS.  APPARENTLY, IT WAS THE PRACTICE OF THE
DEPARTMENT OF THE INTERIOR TO DEPOSIT THE SEMINOLE FUNDS WITH THE
ASSISTANT TREASURER OF THE UNITED STATES AT ST. LOUIS TO THE CREDIT OF
THE TRIBAL TREASURER; THE INDIAN AGENT FOR THE FIVE CIVILIZED TRIBES
DID NOT DISBURSE THE SEMINOLE PAYMENTS ALTHOUGH HE DID DISTRIBUTE
MONEYS TO THE OTHER TRIBES.  FN21  SHORTLY BEFORE THE PAYMENTS IN
QUESTION WERE MADE, THE COMMISSION TO THE FIVE CIVILIZED TRIBES  FN22
POINTEDLY DESCRIBED IN ITS ANNUAL REPORTS TO THE SECRETARY OF THE
INTERIOR AND CONGRESS THE UNBRIDLED CORRUPTION OF THE VARIOUS TRIBAL
GOVERNMENTS, WITHOUT SINGLING OUT ANY PARTICULAR GOVERNMENT FOR
UNENVIABLE DISTINCTION.  THUS: 

"CORRUPTION OF THE GROSSEST KIND, OPENLY AND UNBLUSHINGLY PRACTICED,
HAS FOUND ITS WAY INTO EVERY BRANCH OF THE SERVICE OF THE TRIBAL
GOVERNMENTS.  ALL BRANCHES OF THE GOVERNMENTS ARE REEKING WITH IT, AND
SO COMMON HAS IT BECOME THAT NO ATTEMPT AT CONCEALMENT IS THOUGHT
NECESSARY.  THE GOVERNMENTS HAVE FALLEN INTO THE HANDS OF A FEW ABLE
AND ENERGETIC INDIAN CITIZENS, NEARLY ALL MIXED BLOOD AND ADOPTED
WHITES, WHO HAVE SO ADMINISTERED THEIR AFFAIRS AND HAVE ENACTED SUCH
LAWS THAT THEY ARE ENABLED TO APPROPRIATE TO THEIR OWN EXCLUSIVE USE
ALMOST THE ENTIRE PROPERTY OF THE TERRITORY OF ANY KIND THAT CAN BE
RENDERED PROFITABLE AND AVAILABLE."  FN23 

AND AGAIN: 

"THE COMMISSION IS COMPELLED BY THE EVIDENCE FORCED UPON THEM DURING
THEIR EXAMINATION INTO THE ADMINISTRATION OF THE SO-CALLED GOVERNMENTS
IN THIS TERRITORY TO REPORT THAT THESE GOVERNMENTS IN ALL THEIR
BRANCHES ARE WHOLLY CORRUPT, IRRESPONSIBLE, AND UNWORTHY TO BE LONGER
TRUSTED WITH THE CARE AND CONTROL OF THE MONEY AND OTHER PROPERTY OF
INDIAN CITIZENS, MUCH LESS THEIR LIVES, WHICH THEY SCARCELY PRETEND TO
PROTECT."  FN24  WHILE THESE WARNINGS WERE OF A GENERAL NATURE,
SPECIFIC COMPLAINTS OF MISGOVERNMENT, VENALITY, AND FRAUDULENT CONDUCT
ON THE PART OF THE SEMINOLE LEADERS WERE BROUGHT TO THE ATTENTION OF
THE SECRETARY OF THE INTERIOR AND THE COMMISSIONER OF INDIAN AFFAIRS. 
BY A LETTER TO THE SECRETARY OF THE INTERIOR, DATED JANUARY 24, 1898,
CERTAIN SEMINOLES REMONSTRATED AGAINST THE RATIFICATION OF THE
AGREEMENT CONCLUDED WITH THE SEMINOLE LEADERS ON DECEMBER 16, 1897. 
THE REMONSTRANCE ALLEGED MISGOVERNMENT AND THE PARTICIPATION BY THESE
LEADERS IN A LAND SWINDLE AT THE EXPENSE OF THE TRIBE.  THE SECRETARY
LAID THIS PROTEST BEFORE CONGRESS.  FN25  DURING MUCH OF THE PERIOD IN
QUESTION, 1899-1907, AND FOR SOME TIME PRIOR THERETO, TWO HALF-BREED
BROTHERS WERE PRINCIPAL CHIEF AND TREASURER, RESPECTIVELY, OF THE
SEMINOLE NATION.  TOGETHER THEY RAN A TRADING STORE IN THE SEMINOLE
COUNTRY AND EXTENDED CREDIT BY GIVING DUE BILLS, GOOD ONLY IN TRADE AT
THEIR STORE, TO INDIVIDUAL SEMINOLES IN THE AMOUNT OF ANNUITIES OR
OTHER PAYMENTS OWING THOSE INDIVIDUALS.  THE ACTIVITIES OF THESE
BROTHERS, AND THEIR SYSTEM OF CREDIT IN PARTICULAR, WERE ATTACKED ON
THE FLOOR OF CONGRESS IN 1896 AND 1897,  FN26  AND SEVERELY CRITICIZED
BY AN INVESTIGATOR FOR THE DEPARTMENT OF JUSTICE IN 1905, PART OF WHOSE
REPORT WAS SET FORTH IN A LETTER FROM THE ACTING COMMISSIONER OF INDIAN
AFFAIRS TO THE SECRETARY OF THE INTERIOR, DATED NOVEMBER 11, 1905. 
FN27 

ALL THIS TENDS TO SHOW THAT THE SEMINOLE TRIBAL OFFICERS MIGHT HAVE
BEEN FAITHLESS TO THEIR TRUST DURING THE PERIOD IN QUESTION, AND THAT
THE GOVERNMENT OFFICIALS ADMINISTERING INDIAN AFFAIRS AND DISBURSING
SEMINOLE FUNDS MIGHT HAVE BEEN AWARE OF THAT FAITHLESSNESS AT THE TIME
PAYMENTS WERE MADE TO THE SEMINOLE TREASURER.  HERE AGAIN THE COURT OF
CLAIMS DID NOT ADDRESS ITSELF TO, AND MADE NO FINDINGS ON, THIS
MATERIAL ISSUE.  AS WE SAID IN THE DISCUSSION OF ITEM TWO, ANTE, IT IS
NOT OUR FUNCTION TO MAKE BASIC FINDINGS OF FACT.  AGAIN, WE DO NOT SAY
THAT THE SHOWING WITH RESPECT TO THIS ITEM ESTABLISHES BREACH OF THE
GOVERNMENT'S FIDUCIARY OBLIGATION, BUT WE ARE OF OPINION THAT IT IS
SUFFICIENT TO JUSTIFY REMANDING THIS BRANCH OF THE CASE TO THE COURT OF
CLAIMS FOR FURTHER FINDINGS, IN THE LIGHT OF SUCH EVIDENCE AS MAY BE
BROUGHT TO ITS ATTENTION, AS TO WHETHER THE SEMINOLE TRIBAL OFFICERS
WERE MULCTING THE NATION FROM 1899 TO 1907; WHETHER, IF SUCH WERE THE
CASE, THE APPROPRIATE GOVERNMENT OFFICIALS ADMINISTERING INDIAN AFFAIRS
AND DISBURSING MONEYS TO THE SEMINOLES HAD KNOWLEDGE THEREOF AT THE
TIME ANY OF THE PAYMENTS TO THE TRIBAL TREASURER WERE MADE; AND, IF SO,
WHETHER THE SEMINOLE NATION RECEIVED THE BENEFIT OF ANY SUMS EXPENDED
BY THE TRIBAL TREASURER.  ON THE BASIS OF THESE FINDINGS, THE COURT OF
CLAIMS CAN THEN DETERMINE WHETHER THERE WAS A BREACH OF THE
GOVERNMENT'S FIDUCIARY OBLIGATION, AS DEFINED IN THE DISCUSSION OF ITEM
TWO, ANTE, AND IF THERE WAS A BREACH, THE RESULTANT LIABILITY. 
                        III 

PETITIONER ASSERTS THAT THE COURT OF CLAIMS COMMITTED NUMEROUS ERRORS
WITH RESPECT TO THE ITEMS WHICH IT INCLUDED IN THE LIST OF GRATUITOUS
OFFSETS, AND THE GOVERNMENT ADMITS THAT THE COURT ERRED IN A FEW
INSTANCES.  HOWEVER, SINCE THE CASE MUST BE REMANDED TO DETERMINE
WHETHER THE GOVERNMENT HAS ANY FURTHER OBLIGATION ON ITEMS TWO AND
FIVE, WE DEEM IT UNNECESSARY TO CONSIDER IN DETAIL THE CHALLENGED
OFFSETS. 

ONE PHASE OF THIS QUESTION DOES REQUIRE ATTENTION.  IN SEMINOLE
NATION V. UNITED STATES, NO. 830, POST, P. 310, PETITIONER ASSERTED
THAT THE COURT OF CLAIMS GAVE THE GOVERNMENT CREDIT THERE FOR AN OFFSET
WHICH IT HAD EMPLOYED IN THE INSTANT CASE, THUS ALLOWING A DOUBLE
CREDIT.  TO AVOID THIS CONFUSION THE COURT OF CLAIMS SHOULD FIND AND
DESIGNATE THE PRECISE GRATUITOUS EXPENDITURES TO BE OFFSET AGAINST THE
GOVERNMENT'S LIABILITY, INSTEAD OF FINDING GENERALLY ALL THE ITEMS
WHICH THE GOVERNMENT MAY EVER BE ENTITLED TO USE.  GRATUITY OFFSETS
RESEMBLE A FUND IN A BANK, TO BE DRAWN UPON BY THE GOVERNMENT IN
SUCCESSIVE INDIAN CLAIMS CASES UNTIL EXHAUSTED.  SINCE THEY MAY BE
NEEDED IN FUTURE CASES, IT BECOMES IMPORTANT TO KNOW PRECISELY WHAT
ITEMS HAVE BEEN EMPLOYED TO EXTINGUISH LIABILITY IN A PARTICULAR CASE,
AS THE INSTANT CASE AND NO. 830 DEMONSTRATE.  THE DISADVANTAGE OF THE
ALTERNATIVE, TO TREAT AS BINDING IN SUBSEQUENT SUITS INVOLVING THE SAME
PARTIES THE FINDINGS OF THE COURT OF CLAIMS THAT THE GOVERNMENT HAS
TOTAL OFFSETS IN A CERTAIN AMOUNT, IS EVIDENT BECAUSE IT MAY REQUIRE
THIS COURT TO DO A VAIN THING, THAT IS, TO EXAMINE OFFSETS WHICH MIGHT
NEVER BE NEEDED AND WHICH, EVEN IF DISAPPROVED, WOULD NOT CHANGE THE
RESULT REACHED BY THE COURT OF CLAIMS. 

THE JUDGMENT BELOW IS REVERSED, WITH THE EXCEPTION OF THE DISPOSITION
OF ITEMS ONE, THREE AND FOUR WHICH IS IN ALL RESPECTS AFFIRMED, AND THE
ENTIRE CAUSE IS REMANDED TO THE COURT OF CLAIMS WITH DIRECTIONS TO MAKE
FURTHER FINDINGS WITH RESPECT TO ITEMS TWO AND FIVE; TO DETERMINE THE
ADDITIONAL LIABILITY OF THE GOVERNMENT, IF ANY, THEREON; AND, TO FIND
AND DESIGNATE THE PARTICULAR GRATUITOUS EXPENDITURES TO BE OFFSET
AGAINST THE GOVERNMENT'S TOTAL LIABILITY. 

UPON THE REMAND THE COURT OF CLAIMS WILL BE FREE TO CONSIDER ANY
LEGAL OR EQUITABLE DEFENSES WHICH THE GOVERNMENT MAY INTERPOSE TO THE
CLAIMS ASSERTED THERE BY PETITIONER.  SO ORDERED. 

FN1  82 CT. CLS. 135. 

FN2  THE ACT OF AUGUST 16, 1937, C. 651, 50 STAT. 650, CONFERRED
JURISDICTION ON THE COURT OF CLAIMS TO REINSTATE AND RETRY, ON THE
MERITS, CLAIMS OF THE FIVE CIVILIZED TRIBES PREVIOUSLY DISMISSED
BECAUSE SET UP BY AMENDED PETITION AFTER THE EXPIRATION OF THE TIME
LIMIT FIXED IN THE RESPECTIVE JURISDICTIONAL ACTS. 

FN3  SEVEN ITEMS, AMOUNTING TO $1,307,478.02, WERE CONSIDERED BY THIS
COURT IN 299 U.S. 417.  AS TO SIX OF THOSE ITEMS IT WAS CONCLUDED THAT
NO JURISDICTION EXISTED IN THE COURT OF CLAIMS, AND NO DECISION ON THE
MERITS OF THOSE CLAIMS WAS EXPRESSED.  THE SEVENTH ITEM WAS EXAMINED ON
ITS MERITS AND DISALLOWED IN LARGE PART.  299 U.S. 417, 431. 

FN4  THE ACT OF AUGUST 12, 1935, C. 596, 49 STAT. 571, 596, 25 U.S.C.
SEC. 475A, PROVIDES IN PART: 

"IN ALL SUITS NOW PENDING IN THE COURT OF CLAIMS BY AN INDIAN TRIBE
OR BAND WHICH HAVE NOT BEEN TRIED OR SUBMITTED, AND IN ANY SUIT
HEREAFTER FILED IN THE COURT OF CLAIMS BY ANY SUCH TRIBE OR BAND, THE
COURT OF CLAIMS IS HEREBY DIRECTED TO CONSIDER AND TO OFFSET AGAINST
ANY AMOUNT FOUND DUE THE SAID TRIBE OR BAND ALL SUMS EXPENDED
GRATUITOUSLY BY THE UNITED STATES FOR THE BENEFIT OF THE SAID TRIBE OR
BAND; ...  " 

FN5  93 CT. CLS. 500. 

FN6  PETITIONER DOES NOT QUESTION THIS FINDING OF THE COURT OF
CLAIMS.  SEE ANNUAL REPORTS OF THE COMMISSIONER OF INDIAN AFFAIRS:
1876, PP. 212-213; 1877, PP. 690-691; 1878, PP. 286-287; 1879, PP. 341
342; 1881, PP. 280-281; 1883, PP. 90, 250-251; 1884, PP. 270-271; 1886,
PP. 146, 154; 1887, PP. 98, 110; 1888, PP. 113, 122; 1890, PP. 89, 94;
1891, PP. 240, 250; 1892, PP. 247, 256; 1893, PP. 143, 147; 1894, P.
140; 1895, PP. 155, 161; 1896, PP. 151-158. 

FN7  "THAT ALL REVENUES OF WHATEVER CHARACTER ACCRUING TO THE
CHOCTAW, CHICKASAW, CHEROKEE, CREEK, AND SEMINOLE TRIBES, WHETHER
BEFORE OR AFTER DISSOLUTION OF THE TRIBAL GOVERNMENTS, SHALL, AFTER THE
APPROVAL HEREOF, BE COLLECTED BY AN OFFICER APPOINTED BY THE SECRETARY
OF THE INTERIOR UNDER RULES AND REGULATIONS TO BE PRESCRIBED BY HIM;
AND HE SHALL CAUSE TO BE PAID ALL LAWFUL CLAIMS AGAINST SAID TRIBES
WHICH MAY HAVE BEEN CONTRACTED AFTER JULY FIRST, NINETEEN HUNDRED AND
TWO, OR FOR WHICH WARRANTS HAVE BEEN REGULARLY ISSUED, SUCH PAYMENTS TO
BE MADE FROM ANY FUNDS IN THE UNITED STATES TREASURY BELONGING TO SAID
TRIBES.  ...  " 

FN8  ACT OF MAY 20, 1924, C. 162, 43 STAT. 133, AS AMENDED BY 44
STAT. 568, 45 STAT. 1229, AND 50 STAT. 650. 

FN9  ACT OF MAY 18, 1872, C. 172, 17 STAT. 122, 132. 

FN10  SEE REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS FOR 1873, PP.
211-212. 

FN11  THERE IS NO BETTER EXAMPLE OF THIS THAN THE FACTS OF THE
INSTANT CASE.  DESPITE THE LAPSE OF TIME AND THE BAR OF THE STATUTE OF
LIMITATIONS, CONGRESS AUTHORIZED THE COURT OF CLAIMS TO ADJUDICATE ALL
LEGAL AND EQUITABLE CLAIMS, ARISING UNDER STATUTE OR TREATY, WHICH THE
SEMINOLE NATION MAY HAVE AGAINST THE UNITED STATES.  AND AFTER AN
ADVERSE DECISION BY THIS COURT ON JURISDICTIONAL GROUNDS, 299 U.S. 417,
CONGRESS AGAIN REMOVED THE BAR.  50 STAT. 650. 

FN12  AS WAS WELL SAID BY CHIEF JUDGE (LATER MR. JUSTICE) CARDOZO IN
MEINHARD V. SALMON, 249 N.Y. 458, 464, 164 N.E. 545, 546: 

"MANY FORMS OF CONDUCT PERMISSIBLE IN A WORKADAY WORLD FOR THOSE
ACTING AT ARM'S LENGTH, ARE FORBIDDEN TO THOSE BOUND BY FIDUCIARY
TIES.  A TRUSTEE IS HELD TO SOMETHING STRICTER THAN THE MORALS OF THE
MARKET PLACE.  NOT HONESTY ALONE, BUT THE PUNCTILIO OF AN HONOR THE
MOST SENSITIVE, IS THEN THE STANDARD OF BEHAVIOR.  AS TO THIS THERE HAS
DEVELOPED A TRADITION THAT IS UNBENDING AND INVETERATE.  UNCOMPROMISING
RIGIDITY HAS BEEN THE ATTITUDE OF COURTS OF EQUITY WHEN PETITIONED TO
UNDERMINE THE RULE OF UNDIVIDED LOYALTY BY THE 'DISINTEGRATING EROSION'
OF PARTICULAR EXCEPTIONS.  ...  ONLY THUS HAS THE LEVEL OF CONDUCT FOR
FIDUCIARIES BEEN KEPT AT A LEVEL HIGHER THAN THAT TRODDEN BY THE
CROWD." 

FN13 SEE R.S. SECS. 441, 444, 445, 463, 464, 2089.  CF. ACT OF APRIL
15, 1874, C. 97, 18 STAT. 29. 

FN14  ON DECEMBER 6, 1869, THE UNITED STATES INDIAN AGENT FOR THE
SEMINOLES WROTE TO THE COMMISSIONER OF INDIAN AFFAIRS AS FOLLOWS: 

"I WOULD STATE THAT THEY ARE IN THE HABIT OF CALLING COUNCILS, FOR
ANY LITTLE THING THAT MAY ARISE, AND SPENDING FROM 2 TO 15 DAYS WITHOUT
EFFECTING ANYTHING WHATEVER, WHICH WOULD BE OF THE LEAST SERVICE TO THE
NATION (SEMINOLE), EXCEPT IN EXPENDING THE FUNDS; WHICH ARE TAKEN OUT
OF THOSE ORDERED PAID PER 'CAPITA' TO THE NATION. 

"I FIND THAT IT HAS BEEN THE CUSTOM HERETOFORE FOR THE CHIEFS TO
ORDER HOW THE PAYMENT SHOULD BE MADE, BUT AT THE SAME TIME MAKING
RETURN TO THE DEPARTMENT, UPON ROLLS AS IF IT HAD BEEN PAID PER
'CAPITA'. 

"I THINK THAT IT IS AN INJUSTICE TO THE MAJORITY OF THE PEOPLE,
COMPRISING THIS NATION AND THE ONLY WAY TO AVOID UNNECESSARY
EXPENDITURE OF MONEY FOR COUNCILS, ETC. WHICH ARE OF BUT LITTLE BENEFIT
TO THE NATION (FOR EXAMPLE THE LAST COUNCIL HELD COST THE NATION
$700.00 FOR EDIBLES ALONE AND DID NO BUSINESS) IS FOR THE DEPARTMENT TO
GIVE SPECIAL ORDERS IN REFERENCE AS TO WHAT AMOUNT SHALL BE TURNED OVER
TO THE CHIEFS AND THE BALANCE PAID TO HEADS OF FAMILIES IN PERSON." 

FN15  IN HIS ANNUAL REPORT TO THE COMMISSIONER OF INDIAN AFFAIRS,
DATED SEPTEMBER 1, 1870, THE UNITED STATES INDIAN AGENT FOR THE
SEMINOLES SAID: 

"PER CAPITA PAYMENTS ARE, IN SOME INSTANCES, I THINK, A GREAT EVIL;
BUT AS THE SYSTEM CANNOT BE ABOLISHED, THIS NATION (SEMINOLE) HAVING NO
CONSTITUTIONAL GOVERNMENT, AND UNTIL SUCH A FORM OF GOVERNMENT BE
ADOPTED, I WOULD RECOMMEND THAT THE PROVISIONS OF THE TREATY BE RIGIDLY
ENFORCED, AND NO MONEYS ALLOWED TO BE PAID EXCEPT TO THE HEADS OF
FAMILIES.  HERETOFORE, AS I HAVE REPORTED, THE CHIEFS HAVE BEEN IN THE
HABIT OF TAKING OUT WHAT AMOUNT THEY CHOSE, ALLOWING THE BALANCE TO BE
PAID PER CAPITA.  THIS IS AN INJUSTICE, AS FEW RECEIVE THE BULK OF
THEIR ANNUITIES."  REPORT OF THE SECRETARY OF THE INTERIOR, 41ST CONG.,
3D SESS. (1870-71), VOL. 1, PP. 766-767. 

FN16  THE REPORT OF JOHN P. C. SHANKS, SPECIAL COMMISSIONER, TO THE
COMMISSIONER OF INDIAN AFFAIRS, DATED AUGUST 9, 1875, STATES: 

"THESE CLAIMS ARE ENORMOUS IN AMOUNT, AND SHOW TOO CLEARLY THAT THE
SEMINOLES ARE IN BAD HANDS.  THESE PARTIES WHO HAD THESE CLAIMS (EXCEPT
HARJO, WHO IS AN ASSIGNEE) ARE OR HAVE BEEN OFFICIALS IN THE NATION. 
ROBERT JOHNSON IS A NEGRO, AND IS INTERPRETER TO THE CHIEF; CHUPCO IS
PRESENT CHIEF; JOHN JUMPER WAS FORMER CHIEF; JAMES FACTOR, A HALF
BREED, IS TREASURER; E. J. BROWN IS A WHITE MAN, FORMERLY U.S. INDIAN
AGENT OF THE SEMINOLE NATION, SINCE HAS HAD THE ADDRESS TO PROCURE HIS
ADMISSION AS A MEMBER OF THE TRIBE. 

"THESE MEN HAVE EVIDENTLY STOOD TOGETHER IN THE WRONG, OF PROCURING
SUCH ALLOWANCES, AND DID STAND TOGETHER IN REFUSING TO RELINQUISH THE
CLAIMS, OR A PART OF THEM, EXCEPT A DEDUCTION FOR PRESENT PAYMENT UPON
CLAIMS WHICH DID NOT BEAR INTEREST." 

FN17  ON NOVEMBER 20, 1878, SPECIAL AGENT MEACHAM WROTE THE
COMMISSIONER OF INDIAN AFFAIRS THAT "SOME OF THE BAND CHIEFS ARE
TYRANTS AND DESPOTS, HOLDING THEIR PEOPLE UNDER ABJECT FEAR AND IN SOME
INSTANCES OF ACTUAL SERVITUDE."  THE LETTER ALSO REFERRED TO THE
INTENTION OF THE CHIEFS "TO 'GOBBLE' THE NEXT MONEY FOR THE PURPOSE OF
KEEPING UP THEIR GOVERNMENT." 

FN18  ON JANUARY 5, 1872, THE ACTING COMMISSIONER OF INDIAN AFFAIRS
WROTE THE UNITED STATES INDIAN AGENT FOR THE SEMINOLES: 

"IN REPLY TO YOUR LETTER OF THE 20 DEC. LAST, AND TO THE REQUEST OF
THE SEMINOLE CHIEFS THAT THEIR NATIONAL FUNDS BE HEREAFTER PAID TO THE
TREASURER OF THE NATION INSTEAD OF PER CAPITA, I HAVE TO SAY THAT IT IS
NOT DEEMED ADVISABLE TO CHANGE THE MANNER IN WHICH PAYMENT OF ANNUITIES
TO THESE INDIANS HAS HERETOFORE BEEN MADE UNTIL THE DEPARTMENT SHALL BE
FULLY SATISFIED THAT A PROPER DISPOSITION WILL BE MADE OF THE FUNDS IF
PAID IN THE MANNER PROPOSED BY THE CHIEFS." 

FN19  ACT OF JUNE 7, 1897, C. 3, 30 STAT. 62, 84. 

FN20  SECTION 19, AS ORIGINALLY INTRODUCED, WAS AS FOLLOWS: 

"  ...  THAT NO PAYMENT OF ANY MONEYS ON ANY ACCOUNT WHATEVER SHALL
HEREAFTER BE MADE TO ANY OF THE TRIBAL GOVERNMENTS OR TO ANY OFFICER
THEREOF FOR DISBURSEMENT, BUT PAYMENTS OF ALL EXPENSES INCURRED IN
TRANSACTING THEIR BUSINESS AND OF ALL SUMS TO MEMBERS OF SAID TRIBES
SHALL BE MADE UNDER DIRECTION OF THE SECRETARY OF THE INTERIOR BY AN
OFFICER APPOINTED BY HIM; AND PER CAPITA PAYMENTS SHALL BE MADE DIRECT
TO EACH INDIVIDUAL IN LAWFUL MONEY OF THE UNITED STATES, AND THE SAME
SHALL NOT BE LIABLE TO THE PAYMENT OF ANY PREVIOUSLY CONTRACTED
OBLIGATION."  H.R. 8581, 55TH CONG., 2D SESS., 31 CONG. REC. 3869. 

FN21  LETTER OF ASSISTANT ATTORNEY GENERAL VAN DEVANTER TO THE
SECRETARY OF THE INTERIOR, DATED JULY 12, 1898; H. DOC. VOL. 23, 57TH
CONG., 1ST SESS.  (1901-1902), P. 231. 

FN22  COMMONLY KNOWN AS THE DAWES COMMISSION.  IT WAS CREATED BY THE
ACT OF MARCH 3, 1893, C. 209, 27 STAT. 612, 645, TO NEGOTIATE WITH THE
CREEKS, CHEROKEES, CHOCTAWS, CHICKASAWS, AND SEMINOLES FOR THE
EXTINGUISHMENT OF TRIBAL TITLES TO LAND, THE ALLOTMENT OF THEIR LANDS
IN SEVERALTY, AND THE DIVISION OF THEIR FUNDS EQUALLY AMONG THE MEMBERS
OF THOSE TRIBES. 

FN23  REPORT DATED NOVEMBER 20, 1934, APPENDIX B.H. EX. DOC., VOL.
14, 53D CONG., 3D SESS. (1894-95), P. LXVIII.  SEE ALSO PP. LXIX-LXX. 

FN24  REPORT DATED NOVEMBER 18, 1895, EXHIBIT A, H. DOC., VOL. 14,
54TH CONG., 1ST SESS. (1895-96), P. XCV.  SEE ALSO PP. LXXXVII, XCIII
XCIV. 

AND SEE REPORT DATED OCTOBER 11, 1897, EXHIBIT B, H. DOC., VOL. 12,
55TH CONG., 2D SESS. (1897-98), PP. CXIX, CXXI. 

FN25  SEE S. DOC. 105, 55TH CONG., 2D SESS., (1898), PP. 2-4.  THIS
REMONSTRANCE STATED IN PART: 

"THERE WAS THE SUM OF $191,294.20 WHICH NEVER ENTERED THE TREASURIES
OF THE UNITED STATES OR THE SEMINOLES.  THE REPLY GIVEN TO US ABOUT THE
DISPOSITION OF THIS MONEY BY OUR AUTHORITIES WAS THAT DURING THE
TRANSFER OF THESE LANDS TO THE UNITED STATES THERE WAS A LAWYER WHO
NEGOTIATED THE AGREEMENT AND TOOK THAT AMOUNT FOR HIS PAY.  THE NAME OF
THE LAWYER WAS NEVER MENTIONED AND NO RECEIPT OF THE ALLEGED DEAL WAS
EVER SHOWN.  WE CALL YOUR ATTENTION TO THIS.  WE ASK THAT YOU TAKE NOTE
OF THE TOWN-SITE LAWS OF WEWOKA AND SEE TO WHOM ONLY THESE LAWS ARE
BENEFICIAL AND WHOM THEY OPPRESS.  ... 

"WE BEG LEAVE TO STATE FURTHER THAT WE HAVE NO LAW REGULATING THE
BOND OF OUR TREASURER OR CHIEF, AND ACCORDING TO THE SEMINOLE LAW NO
ACTION OR BILL CAN BE PLACED BEFORE THE COUNCIL WITHOUT THE CONSENT OF
THE CHIEF.  OUR LAWS DO NOT ADMIT OF AN AUDITOR, AND OUR PEOPLE ARE
ENTIRELY IGNORANT OF THE CONDITION OF OUR FINANCES.  ...  WE ASK THAT
ANY DISPOSITION OF MONEYS BELONGING TO THE SEMINOLES AND THE MANAGEMENT
OF THEIR SCHOOLS BE MADE WITH THE APPROVAL OF THE SECRETARY OF THE
INTERIOR.  ...  "    FN26  SEE 28 CONG. REC. 2070; 29 CONG. REC. 1261. 

FN27  THIS REPORT STATED IN PART: 

"IT IS NOT TOO MUCH TO SAY THAT, IN VIEW OF THE IGNORANCE OF THESE
INDIANS, THIS SYSTEM OF CREDIT IS DISHONEST.  IT SHOULD BE CONDEMNED
BECAUSE IT KEEPS THESE INDIANS IN A CONSTANT STATE OF POVERTY.  THEY DO
NOT REALIZE THAT THESE DUE BILLS ARE IN FACT MONEY, AND THE RESULT IS
THAT THEY ARE SQUANDERED WITHOUT CARE.  I AM NOT INFORMED AS TO WHETHER
THE DEPARTMENT OF THE INTERIOR HAS KNOWLEDGE OF THIS STATE OF AFFAIRS. 
IT SHOULD BE BROUGHT TO ITS ATTENTION, SO THAT, IF POSSIBLE, IT MAY
TAKE STEPS LOOKING TO THE BREAKING UP OF THE SYSTEM, WHICH CAN BE DONE
BY HAVING THE APPROPRIATIONS DISTRIBUTED IN SOME OTHER MANNER." 

WM. L. BOWIE, SPECIAL INVESTIGATOR FOR THE INTERIOR DEPARTMENT,
REPORTED TO THE SUPERINTENDENT FOR THE FIVE CIVILIZED TRIBES IN 1916
THAT: 

"GOVERNOR BROWN AND HIS BROTHER HAVE BEEN IN THE MERCANTILE BUSINESS
IN THE SEMINOLE NATION FOR MANY YEARS.  IT IS A FACT MUCH COMMENTED
UPON BY THOSE ACQUAINTED WITH SEMINOLE TRIBAL AFFAIRS, THAT FOR A
NUMBER OF YEARS GOVERNOR BROWN HELD THE DUAL RELATIONSHIP TO THE
MEMBERS OF THE SEMINOLE TRIBE OF GOVERNOR AND PAYMASTER ON THE ONE
HAND, AND INDIAN TRADER ON THE OTHER HAND." 

"  ...  IN MY OPINION, GOVERNOR BROWN HAS SHOWN IN HIS TRANSACTIONS
WITH JOHN SMITH AND LIZZIE YAHOLA, THAT HE HAS LITTLE REGARD FOR THE
WELFARE AND PROTECTION OF THE INDIANS IN GENERAL, AND IT IS UNFORTUNATE
THAT HE OCCUPIES A POSITION WHICH ENABLES HIM BY REASON OF THE
CONFIDENCE PLACED IN HIM AS SUCH OFFICIAL TO IMPOSE UPON THEM." 

ON THE BASIS OF REPORTS FROM SUBORDINATES ASSISTANT COMMISSIONER OF
INDIAN AFFAIRS MERRIT RECOMMENDED TO THE COMMISSIONER OF INDIAN
AFFAIRS, BY A LETTER DATED JULY 20, 1916, THAT THE SEMINOLE TRIBAL
GOVERNMENT BE ABOLISHED AS "THE ONLY WAY TO PREVENT BROWN AND CRAIN
FROM CONTINUING TO USE THEIR OFFICIAL POSITIONS TO ADVANCE THEIR
PERSONAL INTERESTS AT THE EXPENSE OF THE INDIANS UNDER THEIR
AUTHORITY." 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON DISSENTS. 
..END :






SEMINOLE NATION V. U.S., 316 U.S. 310 


NO. 830.  ARGUED APRIL 2, 1942.  - DECIDED MAY 11, 1942.  - 94 CT.CLS. 
240, REVERSED. 


1.  THE ACQUISITION FROM THE CREEK NATION AND THE TRANSFER TO THE
SEMINOLE NATION, BY THE UNITED STATES IN 1882, OF A 175,000 ACRE TRACT,
HELD UNRELATED TO AN ALLEGED DEFICIENCY IN A TRACT PREVIOUSLY
TRANSFERRED TO THE SEMINOLES PURSUANT TO ARTICLE III OF THE TREATY OF
MARCH 21, 1866, SINCE AT THE TIME OF THE 1882 TRANSFER NO SUGGESTION OF
A DEFICIENCY IN THE TREATY GRANT HAD BEEN ADVANCED.  P. 315. 

2.  UNDER THE ACT OF AUGUST 12, 1935, WHICH, IN THE SETTLEMENT OF
CLAIMS AGAINST THE UNITED STATES BY AN INDIAN TRIBE, AUTHORIZED OFFSETS
OF SUMS EXPENDED GRATUITOUSLY BY THE UNITED STATES FOR THE BENEFIT OF
THE TRIBE, THE COURT OF CLAIMS IS REQUIRED TO FIND THE AMOUNT OF THE
LIABILITY, IF ANY, OF THE UNITED STATES ON THE CLAIM OF THE TRIBE, AND
TO DESIGNATE AND FIND THE EXACT AMOUNT OF THE GRATUITOUS EXPENDITURES
WHICH MAY BE UTILIZED TO EXTINGUISH, IN WHOLE OR IN PART, THAT
LIABILITY.  P. 315. 

SEMINOLE NATION V. UNITED STATES* . 

*OPINION REPORTED HEREIN AS AMENDED BY ORDER OF MAY 25, 1942, POST,
P. 647. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 315 U.S. 791, TO REVIEW A JUDGMENT DISMISSING THE
PETITION OF THE SEMINOLE NATION IN A SUIT AGAINST THE UNITED STATES
UNDER A SPECIAL JURISDICTIONAL ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED FOR DECISION IS WHETHER THE UNITED STATES
REMAINS UNDER ANY OBLIGATION TO THE SEMINOLE NATION WITH RESPECT TO
ARTICLE III OF THE TREATY OF MARCH 21, 1866, 14 STAT. 755, 756, WHICH
PROVIDES IN PART: 

"  ...  THE UNITED STATES HAVING OBTAINED BY GRANT OF THE CREEK
NATION THE WESTERLY HALF OF THEIR LANDS, HEREBY GRANT TO THE SEMINOLE
NATION THE PORTION THEREOF HEREAFTER DESCRIBED, WHICH SHALL CONSTITUTE
THE NATIONAL DOMAIN OF THE SEMINOLE INDIANS.  SAID LANDS SO GRANTED BY
THE UNITED STATES TO THE SEMINOLE NATION ARE BOUNDED AND DESCRIBED AS
FOLLOWS, TO WIT:  BEGINNING ON THE CANADIAN RIVER WHERE THE LINE
DIVIDING THE CREEK LANDS ACCORDING TO THE TERMS OF THEIR SALE TO THE
UNITED STATES BY THEIR TREATY OF FEBRUARY 6, 1866, FOLLOWING SAID LINE
DUE NORTH TO WHERE SAID LINE CROSSES THE NORTH FORK OF THE CANADIAN
RIVER; THENCE UP SAID NORTH FORK OF THE CANADIAN RIVER A DISTANCE
SUFFICIENT TO MAKE TWO HUNDRED THOUSAND ACRES BY RUNNING DUE SOUTH TO
THE CANADIAN RIVER; THENCE DOWN SAID CANADIAN RIVER TO THE PLACE OF
BEGINNING.  IN CONSIDERATION OF SAID CESSION OF TWO HUNDRED THOUSAND
ACRES OF LAND DESCRIBED ABOVE, THE SEMINOLE NATION AGREES TO PAY
THEREFOR THE PRICE OF FIFTY CENTS PER ACRE, AMOUNTING TO THE SUM OF ONE
HUNDRED THOUSAND DOLLARS, ...  " 

PETITIONER'S CLAIM IS FOR JUST COMPENSATION FOR THE ALLEGED TAKING BY
THE UNITED STATES OF AN ASSERTED DEFICIENCY IN THE TRACT GRANTED BY
THIS ARTICLE. 

LATE IN 1866, BEFORE THE BOUNDARIES OF THE SEMINOLE DOMAIN HAD BEEN
LOCATED, THE SEMINOLES MOVED TO WHAT WAS ASSUMED TO BE THEIR TREATY
LAND.  FN1  THE FIRST SURVEY OF THE LINE DIVIDING THE CREEK AND THE
SEMINOLE TERRITORIES, MADE BY ONE RANKIN, IN 1868, UNDER A CONTRACT
WITH THE SUPERINTENDENT OF INDIAN AFFAIRS, WAS NOT APPROVED BY THE
DEPARTMENT OF THE INTERIOR.  IN 1871 ONE BARDWELL RE-SURVEYED THE
DIVIDING LINE AND PLACED IT SEVEN MILES WEST OF THE RANKIN LINE.  TWO
MONTHS LATER, AT THE DIRECTION OF THE GOVERNMENT, ONE ROBBINS RAN THE
WESTERN BOUNDARY OF THE SEMINOLE LANDS SO AS TO INCLUDE 200,000 ACRES
FROM THE BARDWELL LINE.  ACCORDING TO ROBBINS' CALCULATIONS, 200,000.03
ACRES WERE INCLUDED BETWEEN THE CANADIAN RIVER ON THE SOUTH, THE NORTH
FORK OF THE CANADIAN RIVER ON THE NORTH, THE BARDWELL LINE ON THE EAST
AND THE ROBBINS LINE ON THE WEST.  THE BARDWELL AND ROBBINS SURVEYS
WERE BOTH APPROVED BY THE SECRETARY OF THE INTERIOR ON FEBRUARY 5,
1872. 

MEANWHILE, PURSUANT TO ARTICLE I OF THE TREATY OF FEBRUARY 27, 1867,
15 STAT. 531,  FN2  THE POTTAWATOMIE TRIBE SELECTED A TRACT BOUNDED "BY
THE WEST LINE OF THE SEMINOLE LANDS," AND ON NOVEMBER 9, 1870, THE
SECRETARY OF THE INTERIOR APPROVED THAT SELECTION.  IN 1872, AFTER THE
LOCATION OF THE ROBBINS LINE, THE POTTAWATOMIES OCCUPIED THE TERRITORY
IMMEDIATELY WEST OF THAT LINE.  SUBSEQUENTLY, THE GOVERNMENT ALLOTTED
AND PATENTED THE LANDS WEST OF THE ROBBINS LINE TO THE POTTAWATOMIES IN
SEVERALTY, OR SOLD AND PATENTED THEM TO SETTLERS AND TURNED THE
PURCHASE PRICE INTO THE TREASURY AS PUBLIC MONEY.  FN3 

THE BARDWELL SURVEY DISCLOSED THAT A CONSIDERABLE AREA EAST OF THE
SEMINOLE-CREEK DIVIDING LINE HAD BEEN OCCUPIED BY THE SEMINOLES, WHO
HAD MADE SUBSTANTIAL IMPROVEMENTS ON THIS LAND.  IN ORDER THAT THE
SEMINOLES MIGHT RETAIN THE LANDS WHICH THEY HAD IMPROVED, CONGRESS
AUTHORIZED NEGOTIATIONS FOR THE PURCHASE OF THESE LANDS EAST OF THE
BARDWELL LINE.  ACT OF MARCH 3, 1873, 17 STAT. 626.  AN AGREEMENT WAS
ENTERED INTO ON FEBRUARY 14, 1881, WITH THE CREEK NATION WHEREBY THAT
NATION CEDED LAND EAST OF THE BARDWELL LINE TO THE UNITED STATES, THE
AGREEMENT PROVIDING THAT THE EASTERN BOUNDARY OF THE LAND CEDED WAS TO
BE DRAWN SO THAT THE TRACT WOULD AGGREGATE 175,000 ACRES.  CREEK NATION
V. UNITED STATES, 93 CT. CLS. 561, 566.  THE CREEKS RECEIVED $175,000
FOR THIS TRACT.  ACT OF AUGUST 5, 1882, 22 STAT. 257, 265.  THIS LAND
BECAME A PART OF THE SEMINOLE DOMAIN AND WAS DISPOSED OF EITHER BY
ALLOTMENT TO MEMBERS OF THE TRIBE OR BY SALE FOR THE ACCOUNT OF THE
TRIBE. 

THE POSSIBILITY OF A DEFICIENCY IN THE ORIGINAL 200,000 ACRE TRACT
WAS FIRST SUSPECTED IN 1900.  FN4  BY AN AMENDED PETITION FILED IN THE
COURT OF CLAIMS IN 1937,  FN5  THE SEMINOLE NATION ALLEGED THAT, OWING
TO AN ERROR IN THE LOCATION OF THE ROBBINS LINE, THE TERRITORY ENCLOSED
BETWEEN THE ROBBINS AND BARDWELL LINES WAS 11,550.54 ACRES SHORT OF
200,000 ACRES, AND THAT THE UNITED STATES TOOK FROM THE SEMINOLES
11,550.54 ACRES WEST OF THE ROBBINS LINE WHEN THE GOVERNMENT PATENTED
THAT LAND TO INDIVIDUALS IN 1892 AND SUBSEQUENT YEARS.  JUDGMENT WAS
PRAYED AGAINST THE UNITED STATES FOR VALUE AT THE TIME OF TAKING OF THE
11,550.54 ACRES, WITH INTEREST AT THE RATE OF FIVE PERCENT PER ANNUM. 
THE COURT OF CLAIMS MADE NO FINDING AS TO WHETHER A SHORTAGE IN FACT
EXISTED IN THE TRACT BETWEEN THE BARDWELL AND ROBBINS LINES, BUT HELD
THAT, IN ANY EVENT, THE SEMINOLE NATION WAS MORE THAN COMPENSATED FOR
THE ALLEGED SHORTAGE BY THE GOVERNMENT'S PURCHASE FOR THE SEMINOLES OF
175,000 ACRES OF LAND FROM THE CREEK NATION.  THE COURT ALSO STATED
THAT, EVEN IF PETITIONER WERE ENTITLED TO RECOVER FOR ANY DEFICIT IN
THE 200,000 ACRE TRACT, THE GOVERNMENT WOULD BE ENTITLED TO OFFSET THE
VALUE OF THE 175,000 ACRE TRACT AS A GRATUITOUS EXPENDITURE UNDER THE
ACT OF AUGUST 12, 1935, 49 STAT. 571, 596, A VALUE ASSUMED TO BE FAR IN
EXCESS OF THE VALUE OF WHATEVER DEFICIT THERE MAY HAVE BEEN.  WE
GRANTED CERTIORARI BECAUSE OF THE CLOSE CONNECTION BETWEEN THIS CASE
AND SEMINOLE NATION V. UNITED STATES, NO. 348, ANTE, P. 286.  FN6 

THE JUDGMENT OF THE COURT OF CLAIMS CANNOT BE SUSTAINED ON EITHER OF
THE GROUNDS ADVANCED.  THE GOVERNMENT IN THIS COURT AGREES TO THIS
PROPOSITION AND SUGGESTS THAT THE CAUSE BE REMANDED TO THE COURT OF
CLAIMS. 

         I 

UNDERLYING THE DENIAL OF RECOVERY FOR ANY DEFICIT IN THE 200,000 ACRE
TRACT BECAUSE PETITIONER WAS COMPENSATED THEREFOR "FIFTEEN-FOLD" BY THE
RECEIPT OF AN ADDITIONAL 175,000 ACRES, IS THE THEORY THAT THE
ACQUISITION OF LAND BY THE SEMINOLES UNDER THE TREATY OF 1866 AND THE
ACQUISITION OF ADDITIONAL LAND TO THE EAST BY TRANSFER FROM THE CREEKS
IN 1882 WERE BUT TWO PARTS OF AN INTEGRAL TRANSACTION, INTENDED TO GIVE
THE SEMINOLES 200,000 ACRES OF LAND AND THUS DISCHARGE THE OBLIGATION
OF THE TREATY OF 1866.  HOWEVER, THE FACTS DO NOT SUPPORT THAT THEORY,
FOR IN 1882 THE SUGGESTION THAT A SHORTAGE EXISTED IN THE SUPPOSED
200,000 ACRE TRACT BETWEEN THE BARDWELL AND ROBBINS LINES HAD NOT YET
BEEN ADVANCED.  THERE WAS THEREFORE NO THOUGHT AT THE TIME THE TRANSFER
OF THE 175,000 ACRE TRACT WAS MADE THAT THE GOVERNMENT THEREBY
FULFILLED ITS TREATY OBLIGATION BY COMPENSATING THE SEMINOLES FOR A
DEFICIENCY IN THE ORIGINAL TRACT. 

                                  II 

THE ACT OF AUGUST 12, 1935, 49 STAT. 571, 596, DIRECTS THE COURT OF
CLAIMS, IN SUITS BY AN INDIAN TRIBE OR BAND, "TO CONSIDER AND TO OFFSET
AGAINST ANY AMOUNT FOUND DUE THE SAID TRIBE OR BAND ALL SUMS EXPENDED
GRATUITOUSLY BY THE UNITED STATES FOR THE BENEFIT OF THE SAID TRIBE OR
BAND."  THIS LANGUAGE PLAINLY REQUIRES THE COURT OF CLAIMS TO FIND,
FIRST, THAT MONEY IS DUE FROM THE UNITED STATES, TO CONSIDER THEN
WHETHER THE UNITED STATES HAS GRATUITOUSLY SPENT SUMS FOR THE BENEFIT
OF THE TRIBE AND, IF IT FINDS SUCH GRATUITOUS EXPENDITURES, TO OFFSET
THEM AGAINST THE AMOUNT FOUND DUE. 

IN ALLOWING THE GRATUITY OFFSET HERE, THE COURT OF CLAIMS FELL SHORT
OF COMPLYING WITH THE REQUIREMENTS OF THE OFFSET STATUTE.  THERE WAS NO
FINDING THAT THE UNITED STATES WAS UNDER ANY LIABILITY TO THE SEMINOLE
NATION; THE COURT STATED ONLY THAT THE VALUE OF THE 175,000 ACRE TRACT
WAS "FAR IN EXCESS OF THE VALUE OF WHATEVER DEFICIT THERE MAY HAVE
BEEN."  THE SHORTCOMINGS OF THIS APPROACH ARE EVIDENT.  AS WE SAID IN
SEMINOLE NATION V. UNITED STATES, NO. 348, ANTE, P. 286, GRATUITY
OFFSETS RESEMBLE A FUND IN A BANK, TO BE DRAWN ON BY THE GOVERNMENT AS
NEEDED.  IF THE GOVERNMENT OWES NOTHING, IT IS ENTITLED TO A DISMISSAL
ON THAT GROUND, AND SHOULD NOT BE COMPELLED TO USE ITS GRATUITY
OFFSETS.  IF LIABILITY EXISTS ON THE GOVERNMENT'S PART, THE EXACT
AMOUNT OF GRATUITOUS EXPENDITURES UTILIZED TO EXTINGUISH THAT
LIABILITY, IN WHOLE OR IN PART, SHOULD BE PRECISELY FOUND AND
DESIGNATED.  THE GOVERNMENT SHOULD NOT BE HELD TO SATISFY ITS LIABILITY
BY THE USE OF GRATUITY EXPENDITURES IN EXCESS OF THE LIABILITY. 
CONVERSELY, THE INDIAN TRIBE IS ENTITLED TO HAVE AN EXACT DETERMINATION
OF THE AMOUNT OWED IT BY THE UNITED STATES IN ORDER THAT AN AMOUNT OF
GRATUITY EXPENDITURES EQUAL TO THE LIABILITY MAY BE EXHAUSTED, OR THAT,
IF THE AVAILABLE OFFSETS ARE INSUFFICIENT, IT RECEIVE A MONEY JUDGMENT
FOR THE DIFFERENCE.  OTHERWISE, CONFUSION AND THE POSSIBILITY OF A
DOUBLE CREDIT FOR A SINGLE OFFSET ARISE, AS THIS CASE AND NO. 348
ABUNDANTLY DEMONSTRATE.  IN THE LATTER CASE, A GRATUITY OFFSET IN THE
AMOUNT OF $165,847.17 ON ACCOUNT OF THE PURCHASE OF THE 175,000 ACRE
TRACT FROM THE CREEKS WAS ALLOWED, AND HERE THE ASSUMED VALUE OF THAT
TRACT IS THE OFFSET EMPLOYED BY THE COURT OF CLAIMS. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE COURT OF
CLAIMS WITH DIRECTIONS TO CONSOLIDATE IT WITH NO. 348; TO DETERMINE
WHETHER A SHORTAGE EXISTS IN THE 200,000 ACRE TRACT; TO DETERMINE
WHETHER THE GOVERNMENT IS LIABLE THEREFOR, AND THE AMOUNT OF SUCH
LIABILITY, IF A SHORTAGE EXISTS; AND, TO FIND AND DESIGNATE THE PRECISE
GRATUITOUS EXPENDITURES USED TO OFFSET THE TOTAL LIABILITY, IF ANY,
ARISING FROM THIS CLAIM AND FROM ITEMS TWO AND FIVE OF NO. 348. 
REVERSED. 

FN1  ALTHOUGH NEGOTIATIONS WERE IN PROGRESS WITH THE CREEKS AT THE
TIME THE SEMINOLE TREATY WAS MADE AND A TREATY WAS SIGNED WITH THEM ON
FEBRUARY 6, 1866, THE CREEK TREATY WAS NOT CONCLUDED UNTIL JUNE 14,
1866.  SEE 14 STAT. 785.  THE DIVIDING LINE BETWEEN THE TWO HALVES OF
THE CREEK COUNTRY WAS NOT SETTLED UNTIL THE BARDWELL SURVEY WAS
APPROVED IN 1872. 

FN2  BY THAT ARTICLE THE UNITED STATES AGREED THAT A DELEGATION FROM
THE POTTAWATOMIES SHOULD ACCOMPANY A GOVERNMENT COMMISSION TO THE
INDIAN COUNTRY "  ...  IN ORDER TO SELECT, IF POSSIBLE, A SUITABLE
LOCATION FOR THEIR PEOPLE WITHOUT INTERFERING WITH THE LOCATIONS MADE
FOR OTHER INDIANS; AND IF SUCH LOCATION SHALL BE FOUND SATISFACTORY TO
THE POTTAWATOMIES, AND APPROVED BY THE SECRETARY OF THE INTERIOR, SUCH
TRACT OF LAND, NOT EXCEEDING THIRTY MILES SQUARE, SHALL BE SET APART AS
A RESERVATION FOR THE EXCLUSIVE USE AND OCCUPANCY OF THAT TRIBE; AND
UPON THE SURVEY OF ITS LINES AND BOUNDARIES, AND ASCERTAINING OF ITS
AREA, AND PAYMENT TO THE UNITED STATES FOR THE SAME, AS HEREINAFTER
MENTIONED AND SET FORTH, THE SAID TRACT SHALL BE PATENTED TO THE
POTTAWATOMIE NATION." 

FN3  PROVISION WAS MADE FOR ALLOTTING THE LANDS TO THE POTTAWATOMIES
IN SEVERALTY BY ACT OF MAY 23, 1872, 17 STAT. 159, AND ACT OF FEBRUARY
8, 1887, 24 STAT. 388.  BY AN AGREEMENT RATIFIED BY ACT OF MARCH 3,
1891, 26 STAT. 989, 1016-1017, THE POTTAWATOMIES CEDED TO THE GOVENMENT
THE TRACT ASSIGNED TO THEM.  IT WAS STIPULATED IN THE AGREEMENT THAT
ALL ALLOTMENTS IN SEVERALTY, MADE OR TO BE MADE, SHOULD BE COMPLETED
AND CONFIRMED, AND THAT OTHER ALLOTMENTS IN SEVERALTY COULD BE MADE
UNTIL FEBRUARY 8, 1891.  THE RATIFYING ACT PROVIDED THAT THE REMAINING
LANDS WERE TO BE OPENED TO SETTLEMENT AS PUBLIC LANDS.  26 STAT. 1026. 

FN4  LETTER FROM THE COMMISSIONER OF INDIAN AFFAIRS TO THE SECRETARY
OF THE INTERIOR, DATED FEBRUARY 5, 1900. 

LETTER FROM THE ACTING SECRETARY OF THE INTERIOR TO THE COMMISSION TO
THE FIVE CIVILIZED TRIBES, DATED OCTOBER 16, 1900. 

FN5  THE ORIGINAL PETITION WAS FILED IN 1930.  THE AMENDED PETITION
WAS FILED AFTER THE AMENDMENT TO THE JURISDICTIONAL ACT.  43 STAT. 133,
AS AMENDED BY 50 STAT. 650. 

FN6  PETITIONER HAS HERE LIMITED ITS CLAIM TO 10,351.82 ACRES,
ADOPTING THE SHORTAGE GIVEN IN THE REPORT, DATED MARCH 18, 1941, OF
ARTHUR D. KIDDER, DISTRICT CADASTRAL ENGINEER OF THE GENERAL LAND
OFFICE, WHO SURVEYED THE AREA AFTER THE ORIGINAL PETITION WAS FILED. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE JACKSON DISSENTS. 
..END :






SIOUX TRIBE V. U.S., 316 U.S. 317 


NO. 798.  ARGUED APRIL 10, 1942.  - DECIDED MAY 11, 1942.  - 94 CT.CLS. 
450, AFFIRMED. 


1.  ORDERS OF THE PRESIDENT, IN 1875 AND 1876, WITHDRAWING AREAS OF
PUBLIC LANDS FROM SALE AND SETTLEMENT AND SETTING THEM APART FOR THE
USE OF THE SIOUX INDIANS AS ADDITIONS TO THEIR PERMANENT TREATY
RESERVATION, CONVEYED NO INTEREST TO THE TRIBE FOR WHICH IT WAS
ENTITLED TO COMPENSATION FROM THE UNITED STATES WHEN, BY SUBSEQUENT
EXECUTIVE ORDERS, THE LANDS WERE RESTORED TO THE PUBLIC DOMAIN.  PP.
325, 330. 

2.  SINCE THE CONSTITUTION PLACES THE AUTHORITY TO DISPOSE OF PUBLIC
LANDS EXCLUSIVELY IN CONGRESS, THE EXECUTIVE'S POWER TO CONVEY ANY
INTEREST IN THESE LANDS MUST BE TRACED TO CONGRESSIONAL DELEGATION OF
ITS AUTHORITY.  P. 326. 

3.  THE BASIS OF DECISION IN UNITED STATES V. MIDWEST OIL CO., 236
U.S. 459, WAS THAT, SO FAR AS THE POWER TO WITHDRAW PUBLIC LANDS FROM
SALE IS CONCERNED, SUCH A DELEGATION COULD BE SPELLED OUT FROM LONG
CONTINUED CONGRESSIONAL ACQUIESCENCE IN THE EXECUTIVE PRACTICE.  P.
326. 

4.  THE ANSWER TO WHETHER A SIMILAR DELEGATION OCCURRED WITH RESPECT
TO THE POWER TO CONVEY A COMPENSABLE INTEREST IN THESE LANDS TO THE
INDIANS MUST BE FOUND IN THE AVAILABLE EVIDENCE OF WHAT CONSEQUENCES
WERE THOUGHT BY THE EXECUTIVE AND CONGRESS TO FLOW FROM THE
ESTABLISHMENT OF EXECUTIVE ORDER RESERVATIONS.  P. 326. 

5.  THERE WAS NO EXPRESS CONSTITUTIONAL OR STATUTORY AUTHORIZATION FOR
THE CONVEYANCE OF A COMPENSABLE INTEREST TO THE TRIBE BY THE EXECUTIVE
ORDERS OF 1875 AND 1876, AND NO IMPLIED CONGRESSIONAL DELEGATION OF THE
POWER TO DO SO CAN BE INFERRED FROM THE EVIDENCE OF CONGRESSIONAL AND
EXECUTIVE UNDERSTANDING.  P. 331. 

6.  THE INCLUSION OF EXECUTIVE ORDER RESERVATIONS IN THE PROVISIONS
OF THE GENERAL ALLOTMENT ACT FOR ALLOTTING RESERVATION LAND TO INDIANS
IN SEVERALTY, DID NOT AMOUNT TO A RECOGNITION OF TRIBAL OWNERSHIP OF
THE LAND PRIOR TO ALLOTMENT.  P. 330. 

SIOUX TRIBE OF INDIANS V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 315 U.S. 790, TO REVIEW A JUDGMENT, IN A SUIT AGAINST THE
UNITED STATES UNDER A SPECIAL JURISDICTIONAL ACT.  THE JUDGMENT DENIED
RECOVERY OF COMPENSATION FOR LAND ALLEGED TO HAVE BEEN TAKEN BY THE
UNITED STATES FROM THE PETITIONING TRIBE OF INDIANS. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION TO RECOVER COMPENSATION FOR SOME 5 1/2 MILLION
ACRES OF LAND ALLEGEDLY TAKEN FROM THE PETITIONER TRIBE IN 1879 AND
1884.  THE SUIT WAS INITIATED UNDER THE ACT OF JUNE 3, 1920, 41 STAT.
738, PERMITTING PETITIONER TO SUBMIT TO THE COURT OF CLAIMS ANY CLAIMS
ARISING FROM THE ASSERTED FAILURE OF THE UNITED STATES TO PAY MONEY OR
PROPERTY DUE, WITHOUT REGARD TO LAPSE OF TIME OR STATUTES OF
LIMITATION.  THE COURT OF CLAIMS DENIED RECOVERY, 94 CT. CLS. 150, AND
WE BROUGHT THE CASE HERE ON CERTIORARI. 

THE FACTS AS FOUND BY THE COURT OF CLAIMS ARE AS FOLLOWS: 

IN 1868 THE UNITED STATES AND THE SIOUX TRIBE ENTERED INTO THE FORT
LARAMIE TREATY (15 STAT. 635).  BY ARTICLE II OF THIS TREATY, A CERTAIN
DESCRIBED TERRITORY, KNOWN AS THE GREAT SIOUX RESERVATION AND LOCATED
IN WHAT IS NOW SOUTH DAKOTA AND NEBRASKA, WAS "SET APART FOR THE
ABSOLUTE AND UNDISTURBED USE AND OCCUPATION" OF THE TRIBE.  THE UNITED
STATES PROMISED THAT NO PERSONS, OTHER THAN GOVERNMENT OFFICERS AND
AGENTS DISCHARGING THEIR OFFICIAL DUTIES, WOULD BE PERMITTED "TO PASS
OVER, SETTLE UPON, OR RESIDE IN THE TERRITORY DESCRIBED IN THIS
ARTICLE, OR IN SUCH TERRITORY AS MAY BE ADDED TO THIS RESERVATION FOR
THE USE OF SAID INDIANS."  FOR THEIR PART, THE INDIANS RELINQUISHED
"ALL CLAIMS OR RIGHT IN AND TO ANY PORTION OF THE UNITED STATES OR
TERRITORIES, EXCEPT SUCH AS IS EMBRACED WITHIN THE LIMITS AFORESAID." 
NO QUESTION ARISES IN THIS CASE WITH RESPECT TO THE LANDS SPECIFICALLY
INCLUDED WITHIN THE RESERVATION BY THIS TREATY. 

THE EASTERN BOUNDARY OF THE GREAT SIOUX RESERVATION, AS CONSTITUTED
BY THE FT. LARAMIE TREATY, WAS THE LOW WATER MARK ON THE EAST BANK OF
THE MISSOURI RIVER.  FN1  THE LARGE TRACT BORDERING UPON AND EXTENDING
EASTWARD FROM THE EAST BANK OF THE RIVER REMAINED A PART OF THE PUBLIC
DOMAIN OPEN TO SETTLEMENT AND AFFORDED EASY ACCESS TO THE RESERVATION. 
AS A RESULT, GREAT NUMBERS OF WHITE MEN "INFESTED" THE REGION FOR THE
PURPOSE OF ENGAGING IN THE LIQUOR TRAFFIC.  ANXIETY OVER THIS
DEVELOPMENT LED THE COMMISSIONER OF INDIAN AFFAIRS, ON JANUARY 8, 1875,
TO SUGGEST TO THE SECRETARY OF THE INTERIOR THAT HE REQUEST THE
PRESIDENT TO ISSUE AN EXECUTIVE ORDER WITHDRAWING FROM SALE AND SETTING
APART FOR INDIAN PURPOSES A CERTAIN LARGE TRACT OF THE LAND ALONG THE
EASTERN BANK OF THE MISSOURI RIVER.  IN THE COMMISSIONER'S LETTER TO
THE SECRETARY OF THE INTERIOR, AND IN THE LATTER'S LETTER OF JANUARY
9TH TO THE PRESIDENT, THE REASON ADVANCED FOR THE PROPOSED EXECUTIVE
ORDER WAS THAT IT WAS "DEEMED NECESSARY FOR THE SUPPRESSION OF THE
LIQUOR TRAFFIC WITH THE INDIANS UPON THE MISSOURI RIVER."  ON JANUARY
11, 1875, THE PRESIDENT SIGNED THE SUGGESTED ORDER.  IT DESCRIBED THE
TERRITORY AFFECTED AND PROVIDED THAT IT "BE, AND THE SAME HEREBY IS,
WITHDRAWN FROM SALE AND SET APART FOR THE USE OF THE SEVERAL TRIBES OF
SIOUX INDIANS AS AN ADDITION TO THEIR PRESENT RESERVATION."  ON TWO
OCCASIONS THEREAFTER, ONCE IN FEBRUARY AND AGAIN IN MAY, WHITE PERSONS
WHO HAD SETTLED ON THE LAND IN QUESTION PRIOR TO THE ISSUANCE OF THE
EXECUTIVE ORDER AND WHO FEARED THAT ITS EFFECT WAS TO DEPRIVE THEM OF
THEIR HOLDINGS, WERE INFORMED BY THE COMMISSIONER OF INDIAN AFFAIRS
THAT THE OBJECT OF THE EXECUTIVE ORDER WAS "TO ENABLE THE SUPPRESSION
OF THE LIQUOR TRAFFIC WITH THE INDIANS ON THE MISSOURI RIVER," THAT IT
DID NOT AFFECT THE EXISTING RIGHTS OF ANY PERSONS IN THE AREA, THAT IT
WAS NOT "SUPPOSED THAT THE WITHDRAWAL WILL BE MADE PERMANENT," AND THAT
NO INTERFERENCE WITH THE PEACEFUL OCCUPANCY OF THE TERRITORY HAD BEEN
INTENDED. 

ON MARCH 13, 1875, THE COMMISSIONER OF INDIAN AFFAIRS ADDRESSED
ANOTHER LETTER TO THE SECRETARY OF THE INTERIOR.  IN IT HE RECOMMENDED
THAT THE SECRETARY REQUEST THE PRESIDENT TO WITHDRAW FROM SALE AND SET
APART FOR INDIAN PURPOSES ANOTHER TRACT OF LAND BORDERING THE GREAT
SIOUX RESERVATION, THIS TIME TO THE NORTH AND NORTHEAST.  THE REASON
GIVEN WAS SIMILAR TO THAT FOR WHICH THE FIRST ORDER HAD BEEN SOUGHT:
"VIZ:  THE SUPPRESSION OF THE LIQUOR TRAFFIC WITH INDIANS AT THE
STANDING ROCK AGENCY."  AS A "FURTHER REASON FOR SAID REQUEST" THE
COMMISSIONER STATED THAT "THE AGENCY BUILDINGS, AS NOW LOCATED AT
STANDING ROCK, ARE OUTSIDE THE RESERVATION AS DEFINED BY (THE FORT
LARAMIE) TREATY  ...  BUT ARE INCLUDED IN THE TRACT PROPOSED TO BE
WITHDRAWN."  THE SECRETARY FORWARDED THE COMMISSIONER'S REPORT TO THE
PRESIDENT WITH HIS CONCURRENCE, REPEATING THAT THE "ENLARGEMENT OF THE
SIOUX RESERVATION IN DAKOTA" WAS "DEEMED NECESSARY FOR THE SUPPRESSION
OF THE LIQUOR TRAFFIC WITH THE INDIANS AT THE STANDING ROCK AGENCY." 
ON MARCH 16, 1875, THE PRESIDENT ISSUED A SECOND EXECUTIVE ORDER
DESCRIBING THE TRACT OF LAND INVOLVED AND DECLARING THAT IT "BE, AND
THE SAME HEREBY IS, WITHDRAWN FROM SALE AND SET APART FOR THE USE OF
THE SEVERAL TRIBES OF THE SIOUX INDIANS AS AN ADDITION TO THEIR PRESENT
RESERVATION IN SAID TERRITORY." 

IN MID-MAY OF 1875 THE SECRETARY OF WAR TRANSMITTED TO THE SECRETARY
OF THE INTERIOR A LETTER FROM THE OFFICER IN COMMAND OF THE SOUTHERN
DISTRICT OF THE MILITARY DEPARTMENT OF DAKOTA IN WHICH IT WAS POINTED
OUT THAT A SMALL TRACT OF LAND ALONG THE EASTERN BANK OF THE MISSOURI
RIVER OPPOSITE THE SOUTHERN CORNER OF THE SIOUX RESERVATION WAS STILL
OPEN TO SETTLEMENT AND AFFORDED "A VERY NICE POINT FOR WHISKEY SELLERS
AND HORSE THIEVES."  UPON THE BASIS OF THIS LETTER, THE COMMISSIONER
RECOMMENDED TO THE SECRETARY OF THE INTERIOR AND THE SECRETARY
RECOMMENDED TO THE PRESIDENT THE ISSUANCE OF STILL A THIRD EXECUTIVE
ORDER WITHDRAWING THE DESCRIBED TRACT FROM SETTLEMENT.  ON MAY 20,
1875, THE EXECUTIVE ORDER WAS ISSUED IN THE SAME FORM AS ITS TWO
PREDECESSORS. 

FINALLY, UPON A SIMILAR COMPLAINT FROM THE ACTING AGENT OF THE
STANDING ROCK AGENCY THAT A SMALL PIECE OF LAND TO THE NORTH OF THE
RESERVATION WAS BEING USED AS A BASE OF OPERATIONS BY PERSONS SELLING
LIQUOR AND AMMUNITION TO THE SIOUX INDIANS, THE COMMISSIONER OF INDIAN
AFFAIRS AND THE SECRETARY OF THE INTERIOR RECOMMENDED A FURTHER ORDER
TO "EFFECTUALLY CUT OFF THESE WHISKEY DEALERS."  IN HIS LETTER TO THE
SECRETARY DATED NOVEMBER 24, 1876, THE COMMISSIONER STATED: "IT IS NOT
PROPOSED TO INTERFERE WITH THE VESTED RIGHTS, OR THE LEGITIMATE
BUSINESS OF ANY SETTLER WHO MAY BE UPON THIS TRACT."  THE PRESIDENT
ISSUED A FOURTH EXECUTIVE ORDER IN THE USUAL FORM ON NOVEMBER 28,
1876.  ON DECEMBER 13, 1876, THE COMMISSIONER NOTIFIED THE AGENT AT
STANDING ROCK THAT THE ORDER HAD BEEN ISSUED, AND ADDED THAT IT WAS
"NOT INTENDED TO INTERFERE WITH THE VESTED RIGHTS OF ANY SETTLERS UPON
THIS TRACT OR WITH THE LEGITIMATE BUSINESS PURSUITS OF ANY PERSON
LAWFULLY RESIDING WITHIN ITS LIMITS." 

ABOUT TWO AND A HALF YEARS AFTER THE LAST OF THESE FOUR EXECUTIVE
ORDERS WITHDRAWING LANDS FROM SALE AND SETTING THEM APART FOR THE USE
OF THE SIOUX, THE COMMISSIONER OF INDIAN AFFAIRS SUBMITTED TO THE
SECRETARY OF THE INTERIOR A REPORT UPON A SUGGESTION THAT THE ORDERS BE
MODIFIED SO AS TO PERMIT THE RETURN OF THE LANDS TO THE PUBLIC DOMAIN. 
THE REPORT, DATED JUNE 6, 1879, REVIEWED THE PROBLEMS ARISING FROM THE
LIQUOR TRADE DURING THE YEARS FOLLOWING THE FORT LARAMIE TREATY,
RECALLED THAT THE PURPOSE OF THE FOUR EXECUTIVE ORDERS OF 1875 AND 1876
HAD BEEN TO ELIMINATE THIS TRAFFIC, OBSERVED THAT THEY HAD "TO A GREAT
EXTENT ACCOMPLISHED THE OBJECT DESIRED, VIZ:  THE PREVENTION OF THE
SALE OF WHISKEY TO THE INDIANS," AND CONCLUDED THAT ANY CHANGE IN THE
BOUNDARIES ESTABLISHED BY THE EXECUTIVE ORDERS WOULD "GIVE RENEWED LIFE
TO THIS UNLAWFUL TRAFFIC, AND BE DETRIMENTAL TO THE BEST INTERESTS OF
THE INDIANS." 

THREE WEEKS LATER, HOWEVER, UPON RECONSIDERATION, THE COMMISSIONER
INFORMED THE SECRETARY THAT, IN HIS OPINION, THE LANDS INCLUDED IN THE
EXECUTIVE ORDERS OF 1875 AND 1876 MIGHT BE "RESTORED TO THE PUBLIC
DOMAIN, AND THE INTERESTS OF THE INDIANS STILL BE PROTECTED."  IN
EXPLANATION HE STATED: 

"THESE LANDS WERE SET APART FOR THE PURPOSE, AS ALLEGED, OF
PREVENTING ILLEGAL LIQUOR TRAFFIC WITH THE INDIANS.  AT THE TIME SAID
LANDS WERE SET APART THERE WAS NO LAW PROVIDING A PUNISHMENT FOR THE
SALE OF LIQUOR TO INDIANS, 'EXCEPT TO INDIANS IN THE INDIAN COUNTRY,'
BUT, BY THE ACT OF FEBRUARY 27, 1877, (19 STAT. 244) PERSONS WHO NOW
ENGAGE IN LIQUOR TRAFFIC WITH INDIANS, NO MATTER IN WHAT LOCALITY, ARE
LIABLE TO A PENALTY OF $300, AND TWO YEARS IMPRISONMENT, AND,
THEREFORE, THE NECESSITY FOR SO LARGE A RESERVATION FOR THE PROTECTION
OF THESE INDIANS IN THIS RESPECT DOES NOT NOW EXIST."  FN2 

ACCORDINGLY, HE RECOMMENDED THAT THE LANDS WITHDRAWN FROM SALE BY THE
PRESIDENT IN 1875 AND 1876 BE RETURNED TO THE PUBLIC DOMAIN, WITH THE
EXCEPTION OF THREE SMALL TRACTS DIRECTLY OPPOSITE THE CHEYENNE, GRAND
RIVER, AND STANDING ROCK AGENCIES.  ON AUGUST 9, 1879, AN EXECUTIVE
ORDER TO THIS EFFECT WAS PROMULGATED AND THE LAND, WITH THE EXCEPTIONS
INDICATED, WAS "RESTORED TO THE PUBLIC DOMAIN."  FIVE YEARS LATER, THE
COMMISSIONER INFORMED THE SECRETARY THAT THE GRAND RIVER AGENCY HAD
CEASED TO EXIST AND THAT THE AGENTS AT CHEYENNE AND STANDING ROCK
CONSIDERED IT NO LONGER NECESSARY TO WITHHOLD THE TRACTS OPPOSITE THEIR
AGENCIES FROM THE PUBLIC DOMAIN "FOR THE PURPOSE FOR WHICH THEY HAVE
THUS FAR BEEN RETAINED."  CONSEQUENTLY, AN EXECUTIVE ORDER WAS PREPARED
AND SIGNED BY THE PRESIDENT ON MARCH 20, 1884, RESTORING THESE THREE
SMALL PIECES OF LAND TO THE PUBLIC DOMAIN, "THE SAME BEING NO LONGER
NEEDED FOR THE PURPOSE FOR WHICH THEY WERE WITHDRAWN FROM SALE AND
SETTLEMENT." 

ONE ADDITIONAL EVENT REMAINS TO BE NOTED.  IN THE INDIAN APPROPRIATION
ACT FOR 1877, APPROVED AUGUST 15, 1876(19 STAT. 176, 192), CONGRESS
PROVIDED: 

"  ...  HEREAFTER THERE SHALL BE NO APPROPRIATION MADE FOR THE
SUBSISTENCE OF SAID INDIANS (I.E., THE SIOUX), UNLESS THEY SHALL FIRST
AGREE TO RELINQUISH ALL RIGHT AND CLAIM TO ANY COUNTRY OUTSIDE THE
BOUNDARIES OF THE PERMANENT RESERVATION ESTABLISHED BY THE TREATY OF
EIGHTEEN HUNDRED AND SIXTY-EIGHT (THE FORT LARAMIE TREATY) FOR SAID
INDIANS; AND ALSO SO MUCH OF THEIR SAID PERMANENT RESERVATION AS LIES
WEST OF THE ONE HUNDRED AND THIRD MERIDIAN OF LONGITUDE (THE WESTERN
BOUNDARY SET BY THE FORT LARAMIE TREATY HAD BEEN THE 104TH MERIDIAN),
AND SHALL ALSO GRANT RIGHT OF WAY OVER SAID RESERVATION TO THE COUNTRY
THUS CEDED FOR WAGON OR OTHER ROADS, FROM CONVENIENT AND ACCESSIBLE
POINTS ON THE MISSOURI RIVER  ...  " 

ON SEPTEMBER 26, 1876 - A DATE SUBSEQUENT TO THE FIRST THREE OF THE
FOUR EXECUTIVE ORDERS SETTING APART ADDITIONAL LANDS FOR THE USE OF THE
SIOUX, BUT ABOUT TWO MONTHS PRIOR TO THE LAST OF THOSE ORDERS - THE
SIOUX TRIBE SIGNED AN AGREEMENT CONFORMING TO THE CONDITIONS IMPOSED BY
CONGRESS IN THE INDIAN APPROPRIATION ACT AND PROMISED TO "RELINQUISH
AND CEDE TO THE UNITED STATES ALL THE TERRITORY LYING OUTSIDE THE SAID
RESERVATION, AS HEREIN MODIFIED AND DESCRIBED  ...  " FN3 

PETITIONER'S POSITION IS THAT THE EXECUTIVE ORDERS OF 1875 AND 1876
WERE EFFECTIVE TO CONVEY TO THE TRIBE THE SAME KIND OF INTEREST IN THE
LANDS AFFECTED AS IT HAD ACQUIRED IN THE LANDS COVERED BY THE FORT
LARAMIE TREATY, THAT THE EXECUTIVE ORDERS OF 1879 AND 1884 RESTORING
THE LANDS TO THE PUBLIC DOMAIN DEPRIVED PETITIONER OF THIS INTEREST,
AND THAT IT IS ENTITLED TO BE COMPENSATED FOR THE FAIR VALUE OF THE
LANDS AS OF 1879 AND 1884.  THE GOVERNMENT DEFENDS ON SEVERAL GROUNDS:
FIRST, THAT, IN GENERAL, THE PRESIDENT LACKED AUTHORITY TO CONFER UPON
ANY INDIVIDUAL OR GROUP A COMPENSABLE INTEREST IN ANY PART OF THE
PUBLIC DOMAIN; SECOND, THAT, EVEN IF HE HAD THE POWER TO CONVEY SUCH A
COMPENSABLE INTEREST, THE PRESIDENT DID NOT PURPORT TO DO SO IN THIS
CASE; AND THIRD, THAT, IN ANY EVENT, BY THE TREATY OF 1876 THE SIOUX
RELINQUISHED WHATEVER RIGHTS THEY MAY HAVE HAD IN THE LANDS COVERED BY
THE FIRST THREE OF THE FOUR EXECUTIVE ORDERS. 

EXCLUSIVELY "THE POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND
REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE
UNITED STATES."  NEVERTHELESS, "FROM AN EARLY PERIOD IN THE HISTORY OF
THE GOVERNMENT IT HAS BEEN THE PRACTICE OF THE PRESIDENT TO ORDER, FROM
TIME TO TIME, AS THE EXIGENCIES OF THE PUBLIC SERVICE REQUIRED, PARCELS
OF LAND BELONGING TO THE UNITED STATES TO BE RESERVED FROM SALE AND SET
APART FOR PUBLIC USES."  GRISAR V. MCDOWELL, 6 WALL.  363, 381.  AS
LONG AGO AS 1830, CONGRESS REVEALED ITS AWARENESS OF THIS PRACTICE AND
ACQUIESCED IN IT.  FN4  BY 1855 THE PRESIDENT HAD BEGUN TO WITHDRAW
PUBLIC LANDS FROM SALE BY EXECUTIVE ORDER FOR THE SPECIFIC PURPOSE OF
ESTABLISHING INDIAN RESERVATIONS.  FN5  FROM THAT DATE UNTIL 1919, FN6
HUNDREDS OF RESERVATIONS FOR INDIAN OCCUPANCY AND FOR OTHER PURPOSES
WERE CREATED BY EXECUTIVE ORDER.  DEPARTMENT OF THE INTERIOR, EXECUTIVE
ORDERS RELATING TO INDIAN RESERVATIONS, PASSIM; UNITED STATES V.
MIDWEST OIL CO., 236 U.S. 459, 469-470.  ALTHOUGH THE VALIDITY OF THESE
ORDERS WAS OCCASIONALLY QUESTIONED,  FN7  DOUBTS WERE QUIETED IN UNITED
STATES V. MIDWEST OIL CO., SUPRA.  IN THAT CASE, IT WAS SQUARELY HELD
THAT, EVEN IN THE ABSENCE OF EXPRESS STATUTORY AUTHORIZATION, IT LAY
WITHIN THE POWER OF THE PRESIDENT TO WITHDRAW LANDS FROM THE PUBLIC
DOMAIN.  CF. MASON V. UNITED STATES, 260 U.S. 545.    THE GOVERNMENT
THEREFORE DOES NOT DENY THAT THE EXECUTIVE ORDERS OF 1875 AND 1876
INVOLVED HERE WERE EFFECTIVE TO WITHDRAW THE LANDS IN QUESTION FROM THE
PUBLIC DOMAIN.  IT CONTENDS, HOWEVER, THAT THIS IS NOT THE ISSUE
PRESENTED BY THIS CASE.  IT URGES THAT, INSTEAD, WE ARE CALLED UPON TO
DETERMINE WHETHER THE PRESIDENT HAD THE POWER TO BESTOW UPON THE SIOUX
TRIBE AN INTEREST IN THESE LANDS OF SUCH A CHARACTER AS TO REQUIRE
COMPENSATION WHEN THE INTEREST WAS EXTINGUISHED BY THE EXECUTIVE ORDERS
OF 1879 AND 1884.  CONCEDEDLY, WHERE LANDS HAVE BEEN RESERVED FOR THE
USE AND OCCUPATION OF AN INDIAN TRIBE BY THE TERMS OF A TREATY OR
STATUTE, THE TRIBE MUST BE COMPENSATED IF THE LANDS ARE SUBSEQUENTLY
TAKEN FROM THEM.  SHOSHONE TRIBE V. UNITED STATES, 299 U.S. 476; UNITED
STATES V. SHOSHONE TRIBE, 304 U.S. 111; UNITED STATES V. KLAMATH
INDIANS, 304 U.S. 119.  SINCE THE CONSTITUTION PLACES THE AUTHORITY TO
DISPOSE OF PUBLIC LANDS EXCLUSIVELY IN CONGRESS, THE EXECUTIVE'S POWER
TO CONVEY ANY INTEREST IN THESE LANDS MUST BE TRACED TO CONGRESSIONAL
DELEGATION OF ITS AUTHORITY.  THE BASIS OF DECISION IN UNITED STATES V.
MIDWEST OIL CO. WAS THAT, SO FAR AS THE POWER TO WITHDRAW PUBLIC LANDS
FROM SALE IS CONCERNED, SUCH A DELEGATION COULD BE SPELLED OUT FROM
LONG CONTINUED CONGRESSIONAL ACQUIESCENCE IN THE EXECUTIVE PRACTICE. 
THE ANSWER TO WHETHER A SIMILAR DELEGATION OCCURRED WITH RESPECT TO THE
POWER TO CONVEY A COMPENSABLE INTEREST IN THESE LANDS TO THE INDIANS
MUST BE FOUND IN THE AVAILABLE EVIDENCE OF WHAT CONSEQUENCES WERE
THOUGHT BY THE EXECUTIVE AND CONGRESS TO FLOW FROM THE ESTABLISHMENT OF
EXECUTIVE ORDER RESERVATIONS.  FN8 

IT IS SIGNIFICANT THAT THE EXECUTIVE DEPARTMENT CONSISTENTLY
INDICATED ITS UNDERSTANDING THAT THE RIGHTS AND INTERESTS WHICH THE
INDIANS ENJOYED IN EXECUTIVE ORDER RESERVATIONS WERE DIFFERENT FROM AND
LESS THAN THEIR RIGHTS AND INTERESTS IN TREATY OR STATUTE
RESERVATIONS.  THE ANNUAL REPORTS OF THE COMMISSIONER OF INDIAN AFFAIRS
DURING THE YEARS WHEN RESERVATIONS WERE FREQUENTLY BEING ESTABLISHED BY
EXECUTIVE ORDER CONTAIN STATEMENTS THAT THE INDIANS HAD "NO ASSURANCE
FOR THEIR OCCUPATION OF THESE LANDS BEYOND THE PLEASURE OF THE
EXECUTIVE,"  FN9  THAT THEY "ARE MERE TENANTS AT WILL, AND POSSESS NO
PERMANENT RIGHTS TO THE LANDS UPON WHICH THEY ARE TEMPORARILY PERMITTED
TO REMAIN,"  FN10  AND THAT THOSE OCCUPYING LAND IN EXECUTIVE ORDER
RESERVATIONS "DO NOT HOLD IT BY THE SAME TENURE WITH WHICH INDIANS IN
OTHER PARTS OF THE INDIAN TERRITORY POSSESS THEIR RESERVES."  FN11 

ALTHOUGH THERE ARE ABUNDANT SIGNS THAT CONGRESS WAS AWARE OF THE
PRACTICE OF ESTABLISHING INDIAN RESERVATIONS BY EXECUTIVE ORDER, THERE
IS LITTLE TO INDICATE WHAT IT UNDERSTOOD TO BE THE KIND OF INTEREST
THAT THE INDIANS OBTAINED IN THESE LANDS.  HOWEVER, IN ITS REPORT IN
1892 UPON A BILL TO RESTORE TO THE PUBLIC DOMAIN A PORTION OF THE
COLVILLE EXECUTIVE ORDER RESERVATION, THE SENATE COMMITTEE ON INDIAN
AFFAIRS EXPRESSED THE OPINION THAT UNDER THE EXECUTIVE ORDER "THE
INDIANS WERE GIVEN A LICENSE TO OCCUPY THE LANDS DESCRIBED IN IT SO
LONG AS IT WAS THE PLEASURE OF THE GOVERNMENT THEY SHOULD DO SO, AND NO
RIGHT, TITLE, OR CLAIM TO SUCH LANDS HAS VESTED IN THE INDIANS BY
VIRTUE OF THIS OCCUPANCY."  FN12 

PETITIONER ARGUES THAT ITS POSITION FINDS SUPPORT IN SEC. 1 OF THE
GENERAL ALLOTMENT ACT OF FEBRUARY 8, 1887,  FN13  WHICH PROVIDES: 

"THAT IN ALL CASES WHERE ANY TRIBE OR BAND OF INDIANS HAS BEEN, OR
SHALL HEREAFTER BE, LOCATED UPON ANY RESERVATION CREATED FOR THEIR USE,
EITHER BY TREATY STIPULATION OR BY VIRTUE OF AN ACT OF CONGRESS OR
EXECUTIVE ORDER SETTING APART THE SAME FOR THEIR USE, THE PRESIDENT OF
THE UNITED STATES BE, AND, HE HEREBY IS, AUTHORIZED  ...  TO CAUSE SAID
RESERVATION  ...  TO BE SURVEYED ...  AND TO ALLOT THE LANDS IN SAID
RESERVATION IN SEVERALTY TO ANY INDIAN LOCATED THEREON  ...  " 

BY SEC. 5, PROVISION WAS MADE FOR ISSUANCE OF PATENTS TO THE
ALLOTTEES, BY WHICH THE UNITED STATES PROMISED TO HOLD THE LANDS IN
TRUST FOR THE ALLOTTEES AND THEIR HEIRS FOR 25 YEARS, AND THEREAFTER TO
CONVEY TO THEM FULL TITLE.  PETITIONER URGES THAT, BY INCLUDING
EXECUTIVE ORDER RESERVATIONS WITHIN THE PROVISIONS OF THIS ACT,
CONGRESS REVEALED ITS BELIEF THAT THE DEGREE OF OWNERSHIP ENJOYED BY
INDIAN TRIBES IS IDENTICAL WHETHER THE RESERVATION IS CREATED BY
TREATY, STATUTE, OR EXECUTIVE ORDER.  BUT THERE IS MUCH TO CONTRADICT
THIS INTERPRETATION.  FOR EXAMPLE, DURING THE COURSE OF THE DEBATE ON
THE MEASURE, SENATOR DAWES, A MEMBER OF THE COMMITTEE REPORTING THE
BILL, FREQUENTLY DISTINGUISHED BETWEEN THE CHARACTER OF TITLE ENJOYED
BY THE INDIANS ON STATUTE AND TREATY RESERVATIONS AND THAT ENJOYED BY
THOSE ON EXECUTIVE ORDER RESERVATIONS, AND NO EXCEPTION WAS TAKEN TO
HIS REMARKS.  17 CONG. REC. 1559, 1630, 1631, 1763.  MOREOVER, IN ITS
1892 REPORT ON THE BILL TO ABOLISH A PORTION OF THE COLVILLE
RESERVATION, TO WHICH WE HAVE REFERRED, THE SENATE COMMITTEE ON INDIAN
AFFAIRS EXPLAINED: 

"AN ERRONEOUS IDEA SEEMS TO HAVE GROWN UP, THAT THE INDIAN ALLOTMENT
ACT (OF 1887) AND ITS AMENDMENTS HAVE GIVEN ADDITIONAL SANCTIONS TO
EXECUTIVE RESERVATIONS, AND OPERATED TO CONFER TITLES UPON THE INDIANS
OCCUPYING THEM THEY DID NOT BEFORE POSSESS  ...  AT THE TIME OF THE
ENACTMENT OF THIS STATUTE, THERE WERE FIFTY-SIX EXECUTIVE RESERVATIONS,
EMBRACING PERHAPS FROM 75,000,000 TO 100,000,000 ACRES OF THE PUBLIC
LANDS, IN WHICH THE INDIANS HAD NO RIGHT OR CLAIM OF TITLE AND WHICH
COULD BE EXTINGUISHED BY ACT OF THE PRESIDENT.  IT WOULD BE
PREPOSTEROUS TO PLACE SUCH A CONSTRUCTION UPON THE LANGUAGE OF THIS ACT
AS WOULD DIVEST THE UNITED STATES OF ITS TITLE TO THESE LANDS."  FN14 

THIS STATEMENT BY THE COMMITTEE WHICH REPORTED THE GENERAL ALLOTMENT
ACT OF 1887, MADE WITHIN FIVE YEARS OF ITS PASSAGE, IS VIRTUALLY
CONCLUSIVE AS TO THE SIGNIFICANCE OF THAT ACT.  WE THINK THAT THE
INCLUSION OF EXECUTIVE ORDER RESERVATIONS MEANT NO MORE THAN THAT
CONGRESS WAS WILLING THAT THE LANDS WITHIN THEM SHOULD BE ALLOTTED TO
INDIVIDUAL INDIANS ACCORDING TO THE PROCEDURE OUTLINED.  IT DID NOT
AMOUNT TO A RECOGNITION OF TRIBAL OWNERSHIP OF THE LANDS PRIOR TO
ALLOTMENT.  SINCE THE LANDS INVOLVED IN THE CASE BEFORE US WERE NEVER
ALLOTTED - INDEED, THE EXECUTIVE ORDERS OF 1879 AND 1884 TERMINATED THE
RESERVATION EVEN BEFORE THE ALLOTMENT ACT WAS PASSED,  - WE THINK THE
ACT HAS NO BEARING UPON THE ISSUE PRESENTED. 

PERHAPS THE MOST STRIKING PROOF OF THE BELIEF SHARED BY CONGRESS AND
THE EXECUTIVE THAT THE INDIANS WERE NOT ENTITLED TO COMPENSATION UPON
THE ABOLITION OF AN EXECUTIVE ORDER RESERVATION IS THE VERY ABSENCE OF
COMPENSATORY PAYMENTS IN SUCH SITUATIONS.  IT WAS A COMMON PRACTICE,
DURING THE PERIOD IN WHICH RESERVATIONS WERE CREATED BY EXECUTIVE
ORDER, FOR THE PRESIDENT SIMPLY TO TERMINATE THE EXISTENCE OF A
RESERVATION BY CANCELLING OR REVOKING THE ORDER ESTABLISHING IT. THAT
IS TO SAY, THE PROCEDURE FOLLOWED IN THE CASE BEFORE US WAS TYPICAL. 
NO COMPENSATION WAS MADE, AND NEITHER THE GOVERNMENT NOR THE INDIANS
SUGGESTED THAT IT WAS DUE.  FN15  IT IS TRUE THAT ON SEVERAL OF THE
MANY OCCASIONS WHEN CONGRESS ITSELF ABOLISHED EXECUTIVE ORDER
RESERVATIONS, IT PROVIDED FOR A MEASURE OF COMPENSATION TO THE
INDIANS.  IN THE ACT OF JULY 1, 1892, RESTORING TO THE PUBLIC DOMAIN A
LARGE PORTION OF THE COLVILLE RESERVATION,  FN16  AND IN THE ACT OF
FEBRUARY 20, 1893, RESTORING A PORTION OF THE WHITE MOUNTAIN APACHE
INDIAN RESERVATION,  FN17  CONGRESS DIRECTED THAT THE PROCEEDS FROM THE
SALE OF THE LANDS BE USED FOR THE BENEFIT OF THE INDIANS.  BUT BOTH
ACTS CONTAINED AN EXPLICIT PROVISO:  "THAT NOTHING HEREIN CONTAINED
SHALL BE CONSTRUED AS RECOGNIZING TITLE OR OWNERSHIP OF SAID INDIANS TO
ANY PART OF SAID  ...  RESERVATION, WHETHER THAT HEREBY RESTORED TO THE
PUBLIC DOMAIN OR THAT STILL RESERVED BY THE GOVERNMENT FOR THEIR USE
AND OCCUPANCY."  CONSEQUENTLY, THE GRANTING OF COMPENSATION MUST BE
REGARDED AS AN ACT OF GRACE RATHER THAN A RECOGNITION OF AN
OBLIGATION. 

WE CONCLUDE THEREFORE THAT THERE WAS NO EXPRESS CONSTITUTIONAL OR
STATUTORY AUTHORIZATION FOR THE CONVEYANCE OF A COMPENSABLE INTEREST TO
PETITIONER BY THE FOUR EXECUTIVE ORDERS OF 1875 AND 1876, AND THAT NO
IMPLIED CONGRESSIONAL DELEGATION OF THE POWER TO DO SO CAN BE SPELLED
OUT FROM THE EVIDENCE OF CONGRESSIONAL AND EXECUTIVE UNDERSTANDING. 
THE ORDERS WERE EFFECTIVE TO WITHDRAW FROM SALE THE LANDS AFFECTED AND
TO GRANT THE USE OF THE LANDS TO THE PETITIONER.  BUT THE INTEREST
WHICH THE INDIANS RECEIVED WAS SUBJECT TO TERMINATION AT THE WILL OF
EITHER THE EXECUTIVE OR CONGRESS AND WITHOUT OBLIGATION TO THE UNITED
STATES.  THE EXECUTIVE ORDERS OF 1879 AND 1884 WERE SIMPLY AN EXERCISE
OF THIS POWER OF TERMINATION, AND THE PAYMENT OF COMPENSATION WAS NOT
REQUIRED.  AFFIRMED. 

FN1  THE GREAT SIOUX RESERVATION ALSO INCLUDED TWO SMALL THERETOFORE
EXISTING RESERVATIONS LOCATED ON THE EAST BANK OF THE RIVER.  THEY ARE
OF NO CONSEQUENCE SO FAR AS THE PRESENT DISPUTE IS CONCERNED. 

FN2  LETTER FROM COMMISSIONER TO SECRETARY OF THE INTERIOR, DATED
JUNE 27, 1879. 

FN3  THIS TREATY WAS RATIFIED BY THE ACT OF FEBRUARY 28, 1877(19
STAT. 254). 

FN4  THE PRE-EMPTION ACT OF MAY 29, 1830, EXCLUDED FROM ITS
PROVISIONS "ANY LAND, WHICH IS RESERVED FROM SALE BY ACT OF CONGRESS,
OR BY ORDER OF THE PRESIDENT."  4 STAT. 420, 421.  "LANDS INCLUDED IN
ANY RESERVATION, BY ANY TREATY, LAW, OR PROCLAMATION OF THE PRESIDENT"
WERE EXCLUDED FROM THE OPERATION OF THE PRE-EMPTION ACT OF SEPTEMBER 4,
1841.  5 STAT. 453, 456. 

FN5  COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1941) 299; DEPARTMENT OF
THE INTERIOR, EXECUTIVE ORDERS RELATING TO INDIAN RESERVATIONS, VOL. I,
P. 79. 

FN6  BY SEC. 27 OF THE ACT OF JUNE 30, 1919, CONGRESS DECLARED THAT
THEREAFTER "NO PUBLIC LANDS OF THE UNITED STATES SHALL BE WITHDRAWN BY
EXECUTIVE ORDER, PROCLAMATION, OR OTHERWISE, FOR OR AS AN INDIAN
RESERVATION EXCEPT BY ACT OF CONGRESS."  41 STAT. 3, 34.  IN 1927,
CONGRESS ADDED A PROVISION THAT ANY FUTURE CHANGES IN THE BOUNDARIES OF
EXECUTIVE ORDER RESERVATIONS SHOULD BE MADE BY CONGRESS ALONE.  SEC. 4,
44 STAT. 1347. 

FN7  SEE 14 OP. A.G. 181(1873).  BUT CF. 17 OP. A.G. 258(1882). 

FN8  THIS QUESTION IS AN OPEN ONE.  IT IS TRUE THAT LANGUAGE
APPEARING IN TWO DECISIONS OF THIS COURT SUGGESTS THAT THE TRIBAL TITLE
TO A RESERVATION IS THE SAME WHETHER THE RESERVATION HAS BEEN CREATED
BY STATUTE OR TREATY OR BY EXECUTIVE ORDER.  RE WILSON, 140 U.S. 575,
577; SPALDING V. CHANDLER, 160 U.S. 394, 403.  CF. C.N. COTTON, 12 L.D.
205(1890); WILLIAM F. TUCKER ET AL., 13 L.D. 628(1891).  IN RE WILSON,
HOWEVER, IT WAS CONCEDED BY ALL CONCERNED THAT AN EXECUTIVE ORDER
RESERVATION WAS "INDIAN COUNTRY" WITHIN THE MEANING OF THAT TERM AS IT
APPEARED IN CERTAIN STATUTES DEFINING THE CRIMINAL JURISDICTION OF
UNITED STATES COURTS AND TERRITORIAL COURTS.  NO QUESTION WAS RAISED BY
THE CASE WITH RESPECT TO THE CHARACTER OF THE TRIBE'S INTEREST IN THE
RESERVATION.  MOREOVER, THE DICTUM REFERRED TO WAS BASED UPON THE
ASSUMPTION THAT THE ALLOTMENT ACT OF 1887(24 STAT. 388) AMOUNTED TO A
CONGRESSIONAL RECOGNITION OF TRIBAL TITLE TO EXECUTIVE ORDER
RESERVATIONS.  THE INVALIDITY OF THIS ASSUMPTION IS DEMONSTRATED IN A
LATER PORTION OF OUR OPINION.  THE ISSUE IN SPALDING V. CHANDLER
CONCERNED THE EFFECT OF THE PRE-EMPTION ACT OF SEPTEMBER 4, 1841(5
STAT. 453) UPON AN INDIAN RESERVATION CREATED BY TREATY AND PRESERVED
BY EXECUTIVE ORDER AND DID NOT INVOLVE A DETERMINATION OF WHETHER THE
INDIANS ENJOYED A COMPENSABLE INTEREST IN AN EXECUTIVE ORDER
RESERVATION.  AND TWENTY-EIGHT YEARS THEREAFTER WHEN THE ATTORNRY
GENERAL RULED, ON THE AUTHORITY OF UNITED STATES V. MIDWEST OIL CO.,
THAT EXECUTIVE ORDER RESERVATIONS WERE NOT A PART OF THE PUBLIC DOMAIN
FOR PURPOSES OF THE GENERAL LEASING ACT OF 1920(41 STAT. 437), HE TOOK
OCCASION TO REMARK:  "WHETHER THE PRESIDENT MIGHT LEGALLY ABOLISH, IN
WHOLE OR IN PART, INDIAN RESERVATIONS ONCE CREATED BY HIM, HAS BEEN
SERIOUSLY QUESTIONED (12 L.D. 205; 13 L.D. 628) AND NOT WITHOUT STRONG
REASONS; FOR THE INDIAN RIGHTS ATTACH WHEN THE LANDS ARE THUS SET
ASIDE; AND MOREOVER, THE LANDS THEN AT ONCE BECOME SUBJECT TO ALLOTMENT
UNDER THE GENERAL ALLOTMENT ACT.  NEVERTHELESS, THE PRESIDENT HAS IN
FACT, AND IN A NUMBER OF INSTANCES, CHANGED THE BOUNDARIES OF EXECUTIVE
ORDER INDIAN RESERVATIONS BY EXCLUDING LANDS THEREFROM, AND THE
QUESTION OF HIS AUTHORITY TO DO SO HAS NOT APPARENTLY COME BEFORE THE
COURTS."  34 OP. A.G. 171, 176. 

FN9  ANNUAL REPORT OF COMMISSIONER OF INDIAN AFFAIRS (1872), H.R.
EXEC. DOC., 42D CONG., 3D SESS., VOL. III, NO. 1, PART 5, P. 472. 

FN10  ID. (1878), H.R. EXEC. DOC., 46TH CONG., 3D SESS., VOL. IX, NO.
1, PART 5, P. 486; ID. (1880), H.R. EXEC. DOC., 46TH CONG., 3D SESS.,
VOL. IX, NO. 1, PART 5, P. 96. 

FN11  ID. (1886), H.R. EXEC. DOC., 49TH CONG., 2D SESS., VOL. 8, NO.
1, PART 5, P. 88. 

FN12  S. REP. NO. 664, 52D CONG., 1ST SESS., P. 2. 

FN13  24 STAT. 388. 

FN14  S. REP. NO. 664, 52D CONG., 1ST SESS., P. 2. 

FN15  SEE, E.G., DEPARTMENT OF THE INTERIOR, EXECUTIVE ORDERS
RELATING TO INDIAN RESERVATIONS, VOL. I, PP. 5, 6, 21, 30, 37, 43, 44,
48-50; HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON INDIAN
AFFAIRS ON S. 1722 AND S. 3159, 69TH CONG., 1ST SESS., PP. 104-105. 
FN16  27 STAT. 62, 63. 

FN17  27 STAT. 469, 470. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














PENCE V. UNITED STATES, 316 U.S. 332 


NO. 665.  ARGUED MARCH 11, 12, 1942.  - DECIDED MAY 11, 1942.  - 121
F.2D 804, AFFIRMED. 


1.  IN AN ACTION ON A GOVERNMENT LIFE INSURANCE POLICY THE GOVERNMENT
IS ENTITLED TO A DIRECTED VERDICT ON THE GROUND OF FRAUD WHERE MATERIAL
REPRESENTATIONS RELATING TO HIS HEALTH MADE BY THE INSURED IN HIS
APPLICATION FOR THE INSURANCE, AND RELIED UPON BY THE GOVERNMENT IN
ISSUING THE POLICY, ARE CLEARLY CONTRADICTED BY STATEMENTS MADE BY HIM
AFTER ISSUANCE OF THE POLICY IN SUPPORT OF CLAIMS FOR DISABILITY
BENEFITS; WHERE THE LATER REPRESENTATIONS LEAVE NO DOUBT OF THE FALSITY
OF THE EARLIER ONES NOR OF THE APPLICANT'S KNOWLEDGE OF THEIR FALSITY,
AND ARE NEITHER CONTRADICTED, QUALIFIED NOR EXPLAINED BY OTHER EVIDENCE
IN THE CASE.  P. 338. 

2.  THE REPRESENTATIONS IN THE SWORN APPLICATION FOR GOVERNMENT LIFE
INSURANCE WERE NOT EVIDENCE OF THEIR OWN VERACITY WHEN CHALLENGED AS
FALSE AND FRAUDULENT.  P. 339. 

3.  UPON THE FACTS ABOVE STATED THE REQUISITE INTENT TO DEFRAUD IS
PRESUMED.  P. 339. 

PENCE V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 314 U.S. 602, TO REVIEW A JUDGMENT ENTERED BY THE
DISTRICT COURT ON A VERDICT FOR THE PRESENT PETITIONER IN AN ACTION ON
A GOVERNMENT LIFE INSURANCE POLICY.  THE DISTRICT COURT DENIED THE
GOVERNMENT'S MOTION, UNDER RULE 50(B), FOR JUDGMENT NOTWITHSTANDING THE
VERDICT OR FOR A NEW TRIAL. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BEGUN IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN BY THE PETITIONER, A WIDOW, AS SOLE
BENEFICIARY OF A POLICY OF UNITED STATES GOVERNMENT LIFE INSURANCE
ISSUED TO HER DECEASED HUSBAND, DOCTOR LAWRENCE W. PENCE.  THE ONLY
CONTESTED ISSUE WAS RAISED BY THE GOVERNMENT'S AFFIRMATIVE DEFENSE THAT
THE POLICY HAD BEEN REINSTATED AS THE RESULT OF FRAUDULENT
REPRESENTATIONS IN DOCTOR PENCE'S APPLICATION FOR REINSTATEMENT OF THE
POLICY AFTER IT HAD LAPSED FOR NONPAYMENT OF PREMIUM. 

AT THE CLOSE OF THE EVIDENCE IN THE TRIAL COURT, THE GOVERNMENT MOVED
FOR A DIRECTED VERDICT IN ITS FAVOR.  THE TRIAL JUDGE WITHHELD A RULING
ON THE MOTION UNDER RULE 50(B) OF THE RULES OF CIVIL PROCEDURE AND
SUBMITTED THE CASE TO THE JURY, WHICH RETURNED A GENERAL VERDICT FOR
THE PETITIONER.  THE GOVERNMENT THEN MOVED UNDER RULE 50(B) FOR
JUDGMENT NOTWITHSTANDING THE VERDICT, AND, IN THE ALTERNATIVE, FOR A
NEW TRIAL.  THE TRIAL JUDGE DENIED BOTH MOTIONS AND ENTERED JUDGMENT ON
THE VERDICT FOR THE PETITIONER.  THE GOVERNMENT APPEALED TO THE CIRCUIT
COURT OF APPEALS FOR THE SEVENTH CIRCUIT, WHICH HELD, WITH ONE JUDGE
DISSENTING, THAT THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH A CASE FOR
THE CONSIDERATION OF THE JURY AND THAT THERE WAS NO INDEPENDENT GROUND
REQUIRING THAT A NEW TRIAL BE GRANTED.  IT REVERSED THE JUDGMENT OF THE
DISTRICT COURT AND REMANDED THE CAUSE FOR FURTHER PROCEEDINGS IN
HARMONY WITH ITS OPINION.  121 F.2D 804.  WE GRANTED CERTIORARI.  314
U.S. 602. 

PETITIONER CONTENDS THAT THE EVIDENCE RAISED A QUESTION OF FACT FOR
THE CONSIDERATION OF THE JURY, AND THAT THE DECISION OF THE CIRCUIT
COURT OF APPEALS THEREFORE DENIES HER THE RIGHT TO TRIAL BY JURY.  FN1 

DOCTOR PENCE HAD BEEN A PHYSICIAN AND MEDICAL OFFICER IN THE MILITARY
SERVICE OF THE UNITED STATES FROM AUGUST 7, 1918, TO JANUARY 9, 1919. 
WHILE IN THE SERVICE HE OBTAINED A $10,000 POLICY OF YEARLY RENEWABLE
WAR RISK TERM INSURANCE, WHICH HE ALLOWED TO LAPSE ON MARCH 2, 1920,
FOR NONPAYMENT OF THE PREMIUM DUE ON FEBRUARY 1, 1920.  IN 1925 HE GAVE
UP A PRIVATE MEDICAL PRACTICE TO ACCEPT EMPLOYMENT AS A PHYSICIAN WITH
THE GOVERNMENT, ACTING THEREAFTER AS A SPECIALIST IN EYE, EAR, NOSE,
AND THROAT DISEASES AT VARIOUS VETERANS' HOSPITALS AND HOMES MAINTAINED
BY THE GOVERNMENT.  ON JUNE 21, 1927, PENCE APPLIED FOR REINSTATEMENT
AND CONVERSION OF THE LAPSED TERM POLICY.  THE POLICY WAS ACCORDINGLY
REINSTATED AND CONVERTED EFFECTIVE JULY 1, 1927; AND, EXCEPT FOR THE
QUESTION OF FRAUD,  FN2  WAS IN FORCE AT THE TIME OF HIS DEATH ON
SEPTEMBER 21, 1934. 

IN HIS APPLICATION FOR REINSTATEMENT, PENCE CATEGORICALLY DENIED,
AMONG OTHER THINGS, THAT HE HAD EVER BEEN TREATED FOR ANY DISEASE OF
THE THROAT, HEART OR STOMACH.  SO ALSO DID HE DENY THAT SINCE THE LAPSE
OF THE POLICY HE HAD CONSULTED ANY PHYSICIAN IN REGARD TO HIS HEALTH,
OR HAD BEEN ILL OR PREVENTED BY ILL HEALTH FROM ATTENDING TO HIS USUAL
OCCUPATION. 

AT THE TRIAL THERE WAS SUBMITTED IN EVIDENCE A COMMUNICATION FROM THE
REGIONAL MEDICAL OFFICER AT SIOUX FALLS, SOUTH DAKOTA, TO THE MANAGER
OF THE VETERANS' ADMINISTRATION IN MILWAUKEE, WISCONSIN, AND DATED
DECEMBER 9, 1931.  THIS REPORTED THAT A GASTRO-INTESTINAL X-RAY
EXAMINATION HAD BEEN MADE OF PENCE AT THE SIOUX FALLS VETERANS'
HOSPITAL ON APRIL 6, 1925, AND HAD RESULTED IN A DIAGNOSIS OF
"SUSPECTED DUODENAL PATHOLOGY."  PENCE MADE SEVERAL STATEMENTS,
SUBSEQUENT TO THE REINSTATEMENT OF HIS INSURANCE AND IN SUPPORT OF
CLAIMS FOR DISABILITY BENEFITS FROM THE GOVERNMENT, THAT THIS
EXAMINATION HAD BEEN MADE AT HIS REQUEST.  MRS. PENCE ADMITTED THAT SHE
KNEW THAT SUCH AN EXAMINATION HAD BEEN MADE. 

ABOUT FIFTEEN MONTHS AFTER HIS APPLICATION FOR REINSTATEMENT, AND ON
AUGUST 27, 1928, PENCE APPLIED TO THE GOVERNMENT FOR DISABILITY
COMPENSATION, CLAIMING THAT HE WAS DISABLED BY CHRONIC SINUSITIS,
ETHMOIDITIS, ATROPHIC RHINITIS, AND BY MYOCARDITIS.  ON SEPTEMBER 7,
1928, HE EXECUTED AND SUBMITTED A SWORN STATEMENT IN SUPPORT OF HIS
APPLICATION FOR DISABILITY COMPENSATION THAT HE SUFFERED FROM THE
FOLLOWING DISABILITIES:  "SINUSITIS, FRONTAL, ETHMOIDITIS, CHRONIC,
ATROPHIC RHINITIS, CHRONIC, WITH LOSS OF SENSE OF SMELL, MYOCARDITIS,
CHRONIC  ...  INCURRED  ...  ON OR ABOUT OCTOBER 1918."  HE ALSO STATED
"THAT A PHYSICIAN WAS CALLED IN TO TREAT ME ON JAN. 1927, WHEN HE
PRONOUNCED MY DISABILITY SINUSITIS, FRONTAL, ACUTE EXACERBATION AND
PRESCRIBED SERUM AND LOCAL TREATMENT TENDING TO INDUCE DRAINAGE. 
TREATMENT WAS CARRIED OUT BY MYSELF.  WAS CONFINED TO BED FOR 8 DAYS." 
TOGETHER WITH THIS HE SUBMITTED A SUPPORTING "PHYSICIAN'S AFFIDAVIT,"
BY DOCTOR L. GRANT GLICKMAN, A PRACTICING PHYSICIAN STATIONED AT THE
TIME OF THE ASSERTED EXAMINATION AT THE NATIONAL HOME AT LEAVENWORTH,
KANSAS, WHERE PENCE WAS STATIONED; AND EMPLOYED AT THE TIME OF THE
TRIAL BY THE VETERANS' ADMINISTRATION AT FORT SNELLING, MINNESOTA. 
FN3 

IN 1931 AND 1933 PENCE MADE STATEMENTS IN SUPPORT OF OTHER CLAIMS FOR
BENEFITS, SIMILAR TO THOSE SET FORTH ABOVE IN THAT THEY CONTRADICTED
THE REPRESENTATIONS MADE IN HIS APPLICATION FOR REINSTATEMENT INVOLVED
IN THIS CASE.  ON NOVEMBER 28, 1931, HE SUBMITTED A STATEMENT IN
SUPPORT OF AN APPLICATION FOR RETIREMENT, TO THE EFFECT THAT IN 1918 A
CAMP PHYSICIAN, BY WHOSE AUTHORITY HE REMAINED IN BARRACKS UNDER
SPECIAL CARE WHILE IN SERVICE, EXAMINED HIS HEART AND TOLD HIM IT WAS
"SHOT"; THAT HE HAD ACUTE MYOCARDITIS AND A SEVERE GASTRIC UPSET WHICH
"TURNED OUT TO BE A FORERUNNER OF DUODENAL ULCER WHICH PERFORATED IN
1920 AND AGAIN IN 1925"; AND THAT BECAUSE OF DISTRESS AND CERTAIN
SYMPTOMS HE LATER REQUESTED A GASTRO-INTESTINAL EXAMINATION AT THE
VETERANS' BUREAU OFFICE AT SIOUX FALLS, SOUTH DAKOTA.  HE CONCLUDED HIS
STATEMENT:  "I NEVER HAD A DAY OF SICKNESS IN MY LIFE BEFORE THIS AND I
DO NOT BELIEVE I HAVE HAD AN ENTIRELY WELL ONE SINCE."  ON DECEMBER 8,
1933, HE SUBMITTED A SWORN APPLICATION FOR PENSION FOR DISABILITY
RESULTING FROM ACTIVE MILITARY SERVICE, STATING THAT SINCE THE
BEGINNING OF SERVICE ONE CIVILIAN PHYSICIAN HAD TREATED HIM FOR
SINUSITIS AND MYOCARDITIS; AND FOUR OTHERS FOR SINUSITIS ALONE.  ONE OF
THE LATTER EXAMINATIONS WAS STATED TO HAVE BEEN MADE BY DOCTOR GLICKMAN
IN 1926, AND ANOTHER WAS STATED TO HAVE BEEN MADE AT A TIME AFTER THE
LAPSE OF THE POLICY IN SUIT. 

DOCTOR GLICKMAN WAS PRODUCED AT THE TRIAL AS A WITNESS FOR THE
GOVERNMENT, IN WHOSE EMPLOY HE STILL WAS AT THE TIME.  THE TRIAL JUDGE
RULED OUT, AS IMPROPER, QUESTIONS BY PETITIONER'S COUNSEL BEARING UPON
THE QUESTION WHETHER DISCIPLINARY ACTION HAD BEEN TAKEN AGAINST
GLICKMAN AND OTHERS BECAUSE OF THE EXECUTION OF AFFIDAVITS IN SUPPORT
OF PENCE'S CLAIM FOR DISABILITY COMPENSATION AND OTHER OF HIS CLAIMS. 
UPON BEING ASKED WHETHER HE HAD AN INDEPENDENT RECOLLECTION OF THE
EXAMINATION REFERRED TO, HE STATED THAT HE HAD COPIES OF "RECORDS," BUT
NOT THE "ORIGINALS."  THE GOVERNMENT'S ATTORNEY THEN ASKED:  "WELL,
DOCTOR, DO YOU HAVE A RECOLLECTION OF YOUR EXAMINATION - REFRESH YOUR
RECOLLECTION OF YOUR EXAMINATION OF DR. LAWRENCE PENCE IN JANUARY,
1927?"  GLICKMAN ANSWERED "I DO."  THE GOVERNMENT COULD NOT LOCATE THE
RECORD OF THE TREATMENT MADE ON GLICKMAN'S REPORT AS OFFICER OF THE DAY
- APPARENTLY THE ONLY RECORD MADE OF THE TREATMENT - AND IT WAS NOT
PRODUCED AT THE TRIAL. 

GLICKMAN TESTIFIED FURTHER AS FOLLOWS:  PENCE CALLED UPON HIM FOR
TREATMENT ON JANUARY 16, 1927, WHILE HE WAS ACTING AS OFFICER OF THE
DAY.  HE CONCLUDED THAT PENCE WAS SUFFERING FROM SINUSITIS AND
ETHMOIDITIS.  PENCE KNEW WHAT HIS FINDINGS WERE, AND STATED THAT HE WAS
SUFFERING FROM A RECURRENCE OF A CHRONIC CONDITION.  GLICKMAN TREATED
PENCE AT PENCE'S HOME ON TWO OR THREE OCCASIONS BETWEEN JANUARY 16 AND
JANUARY 25.  MRS. PENCE WAS AT HOME THEN, ALTHOUGH PERHAPS NOT ON ALL
OCCASIONS.  PENCE HAD NO COLD, BUT GLICKMAN PRESCRIBED A COLD SERUM FOR
HIM, AND ALSO SOME ARGYROL PACKS. 

MRS. PENCE TESTIFIED, HOWEVER, THAT:  SHE HAD NO KNOWLEDGE THAT HER
HUSBAND HAD CONSULTED A PHYSICIAN.  SHE WAS CLOSE TO HIM, AND
CONSTANTLY WITH HIM, AND BELIEVED THAT HE WOULD HAVE TOLD HER OF
ANYTHING SERIOUSLY THE MATTER WITH HIM.  HE NEVER TOLD HER, HOWEVER, OF
CONSULTING A PHYSICIAN, OR THAT HE SUFFERED FROM SINUSITIS,
ETHMOIDITIS, OR MYOCARDITIS.  HER HUSBAND LED AN ACTIVE, VIGOROUS LIFE,
AND WAS NEVER CONFINED TO BED, EXCEPT BY OCCASIONAL COLDS, AND SUFFERED
FROM NO OTHER SICKNESS.  IT APPEARED FROM HER TESTIMONY, HOWEVER, THAT
SHE WAS UNABLE TO DIFFERENTIATE BETWEEN A "COLD" AND A SINUS
INFECTION. 

PENCE'S TWO SONS AND TWO FRIENDS ALSO TESTIFIED TO HIS ACTIVE LIFE
AND APPARENT GOOD HEALTH. 

WITH THE EVIDENCE IN THIS CONDITION, THE CIRCUIT COURT OF APPEALS HELD
THAT THE DISTRICT COURT ERRED IN REFUSING TO WITHDRAW THE CASE FROM THE
JURY. 

THE GOVERNMENT, WHICH THE CIRCUIT COURT OF APPEALS HELD WAS ENTITLED
TO A DIRECTED VERDICT, HAD THE BURDEN OF PROOF ON THE ISSUE OF FRAUD. 
UNDER THE CIRCUMSTANCES WE HAVE RECITED, THE CREDIBILITY OF DOCTOR
GLICKMAN, ITS WITNESS, WAS CLEARLY FOR THE JURY.  THE EVIDENCE OF THE
GASTRO-INTESTINAL EXAMINATION WAS LIKEWISE INSUFFICIENT TO SUSTAIN THE
DIRECTION OF A VERDICT.  WE ASSUME, WITHOUT DECIDING, THAT THE JURY
COULD NOT HAVE REFUSED TO BELIEVE THAT SUCH AN EXAMINATION HAD BEEN
MADE.  YET THE JURY COULD HAVE PROPERLY REFUSED TO DEDUCE FROM THIS ALL
THE NECESSARY ELEMENTS OF THE DEFENSE OF FRAUD, ESTABLISHED BY OUR
DECISIONS TO BE:  (1) A FALSE REPRESENTATION (2) IN REFERENCE TO A
MATERIAL FACT (3) MADE WITH KNOWLEDGE OF ITS FALSITY (4) AND WITH THE
INTENT TO DECEIVE (5) WITH ACTION TAKEN IN RELIANCE UPON THE
REPRESENTATION.  FN4 

THE CASE OF THE GOVERNMENT FOR A DIRECTED VERDICT RESTS, THEREFORE,
UPON THE STATEMENTS OF PENCE MADE AFTER THE REINSTATEMENT OF HIS
INSURANCE AND CONTRADICTING THE REPRESENTATIONS IN HIS APPLICATION FOR
REINSTATEMENT.  THEIR ADMISSIBILITY AS AGAINST THE BENEFICIARY
PLAINTIFF, MRS. PENCE, IS NOT IN ISSUE ON THIS RECORD, FOR THEY WERE
INTRODUCED BY THE GOVERNMENT AND RECEIVED IN EVIDENCE WITHOUT
OBJECTION.  FN5 

PENCE'S REPRESENTATIONS IN THE APPLICATION WERE NOT EVIDENCE OF THEIR
OWN VERACITY.  FN6  HIS LATER CONTRARY STATEMENTS WERE REPEATED, AND
USUALLY UNDER OATH; THEY ARE IN NO WAY IMPROBABLE, AND ARE THE
STATEMENTS OF ONE WHO, BEING HIMSELF A DOCTOR, SPOKE WITH KNOWLEDGE OF
THE SUBJECT AND BEARING OF HIS STATEMENTS.  HIS ADMISSIONS LEFT NO ROOM
FOR CONJECTURE AS TO THE FALSITY OF THE PREVIOUS STATEMENTS IN THE
APPLICATION, AND OF HIS KNOWLEDGE OF SUCH FALSITY.  FROM THESE FACTS
THE REQUISITE INTENT TO DEFRAUD IS PRESUMED,  FN7  AND THEREFORE NEED
NOT BE PROVEN IN THE ABSENCE OF COUNTERVAILING EVIDENCE.  MATERIALITY
AND RELIANCE WERE CONCLUSIVELY ESTABLISHED BY EVIDENCE INTRODUCED AT
THE TRIAL, IF INDEED SUCH PROOF WERE NEEDED. 

NO EVIDENCE IN THE CASE SERVED IN ANY WAY TO CONTRADICT, QUALIFY, OR
EXPLAIN PENCE'S ADMISSIONS.  FN8  WE ARE OF OPINION THAT, IN THE
ABSENCE OF ANY SUCH EVIDENCE, HIS ADMISSIONS ESTABLISHED SO
OVERWHELMING A CASE IN FAVOR OF THE GOVERNMENT AS TO REQUIRE THE
DIRECTION OF A VERDICT IN ITS FAVOR,  FN9  AND THE DECISION OF THE
CIRCUIT COURT OF APPEALS IS, THEREFORE, AFFIRMED. 

FN1  THIS RIGHT WAS CONFERRED BY AMENDMENT TO SEC. 19 OF THE WORLD
WAR VETERANS ACT, 43 STAT. 1302, 38 U.S.C. SEC. 445.  WHITNEY V. UNITED
STATES, 8 F.2D 476; HACKER V. UNITED STATES, 16 F.2D 702; UNITED STATES
V. SALMON, 42 F.2D 353; UNITED STATES V. GREEN, 107 F.2D 19; H.R. REP.
NO. 1518, 68TH CONG., 2D SESS., P. 2. 

FN2  A DEFENSE ON THIS GROUND IS AUTHORIZED BY SEC. 307 OF THE WORLD
WAR VETERANS ACT, 38 U.S.C. SEC. 518. 

FN3  THIS AFFIDAVIT CONTAINED THE FOLLOWING:  "I FIRST EXAMINED THE
CLAIMANT ON JAN. 16, 1927.  HIS COMPLAINT AT THAT TIME WAS:  FRONTAL
SINUSITIS & ETHMOIDITIS, CHRONIC.  UPON PHYSICAL EXAMINATION I FOUND
THE FOLLOWING SYMPTOMS PRESENT:  HEADACHE, SEVERE; BLOODY PURULENT
DISCHARGE FROM NOSE.  I DIAGNOSED THE INJURY OR DISEASE AS CHRONIC
ETHMOIDITIS & FRONTAL SINUSITIS WITH AN AUTO EXACERBATION.  THE
PROGNOSIS WAS FAIR BUT INCURABLE.  I DO BELIEVE THE CLAIMANT'S
DISABILITY IS ATTRIBUTABLE TO HIS MILITARY SERVICE, FOR THE FOLLOWING
REASONS:  STATEMENT OF CLAIMANT THAT ABOVE TROUBLE FOLLOWED INFLUENZA
IN SERVICE.  NEVER TROUBLED BEFORE THAT TIME WITH ABOVE DISABILITIES. 
CLAIMANT CONTINUED UNDER MY CARE UNTIL JAN. 25, 1927, DURING WHICH TIME
I TREATED HIM AS FOLLOWS:  ARGYROL INSTILLATIONS & PACKS.  SERUM
THERAPY." 

FN4  CLAFLIN V. COMMONWEALTH INS. CO., 110 U.S. 81; LEHIGH ZINC &
IRON CO. V. BAMFORD, 150 U.S. 665, 673; MUTUAL LIFE INS. CO. V. HILTON
GREEN, 241 U.S. 613; CF. DERRY V. PEEK, 14 APP. CAS. 337, 374.    FN5
COMPARE TRUELSCH V. MILLER, 186 WIS. 239, 250, 202 N.W. 352;
CONNECTICUT MUTUAL LIFE INS. CO. V. HILLMON, 188 U.S. 208.  IT DOES NOT
APPEAR FROM THE REPORT OF THE HILLMON CASE WHETHER THE INSURED HAD THE
POWER TO CHANGE THE BENEFICIARY, AS PENCE DID IN THE PRESENT CASE. 
SEC. 301 OF THE WORLD WAR VETERANS ACT, 38 U.S.C. SEC. 512.  THE EFFECT
OF SUCH A POWER TO MAKE THE INSURED'S STATEMENTS ADMISSIBLE AGAINST THE
BENEFICIARY HAS FREQUENTLY BEEN DEALT WITH BY THE COURTS AND
COMMENTATORS.  4 WIGMORE, EVIDENCE (2D ED.)  146, NOTE 6; KALES,
ADMISSIBILITY OF DECLARATIONS OF THE INSURED AGAINST THE BENEFICIARY, 6
COLUMBIA LAW REVIEW 509; MORGAN, THE RATIONALE OF VICARIOUS ADMISSIONS,
42 HARVARD LAW REVIEW 461, 477-78; FINALE, THE ADMISSIBILITY OF
DECLARATIONS OF THE ASSURED IN LIFE INSURANCE LITIGATION, 8 ST. JOHN'S
LAW REVIEW 258; 4 MINNESOTA LAW REVIEW 359. 

THE CASH, LOAN, AND OTHER VALUES OF THE POLICY IN SUIT TO PENCE AT
THE TIME OF HIS VARIOUS STATEMENTS CONTRADICTING THE REPRESENTATIONS IN
HIS APPLICATION FOR REINSTATEMENT AND CONVERSION OF THE POLICY IN SUIT
DO NOT APPEAR IN THE RECORD.  COMPARE SEC. 301 OF THE WORLD WAR
VETERANS ACT, 38 U.S.C. SEC. 512. 

FN6  IF THE LAW WERE OTHERWISE, IT WOULD FOLLOW THAT A VERDICT COULD
NEVER BE DIRECTED IN FAVOR OF A PARTY ALLEGING FRAUD IN ANY CASE IN
WHICH THE FALSITY OF A REPRESENTATION WAS IN ISSUE.  YET, VERDICTS HAVE
FREQUENTLY BEEN DIRECTED IN SUCH CIRCUMSTANCES.  CF. BELLA S.S. CO. V.
INSURANCE CO. OF NORTH AMERICA, 5 F.2D 570; AETNA LIFE INS. CO. V.
BOLDING, 57 F.2D 626; AETNA LIFE INS. CO. V. PERRON, 69 F.2D 401,
CERTIORARI DENIED, 293 U.S. 570; COLUMBIAN NATIONAL LIFE INS. CO. V.
RODGERS, 93 F.2D 740. 

FN7 CLAFLIN V. COMMONWEALTH INS. CO., 110 U.S. 81, 95; MUTUAL LIFE
INS. CO. V. HILTON-GREEN, 241 U.S. 613, 622; CF. AGNEW V. UNITED
STATES, 165 U.S. 36, 53; STIPCICH V. METROPOLITAN LIFE INS. CO., 277
U.S. 311, 316-317. 

FN8  THE DENIAL OF PENCE'S VARIOUS CLAIMS IS IN NO WAY INCONSISTENT
WITH THE TRUTH OF HIS ADMISSIONS HERE INVOLVED, SINCE HIS CLAIMS WERE
ALLOWABLE ONLY IN THE EVENT OF ACTUAL PHYSICAL DISABILITY AT THE TIME. 
THAT A MAN IS NOT PRESENTLY DISABLED IN NO WAY MILITATES AGAINST THE
TRUTH OF STATEMENTS THAT HE HAD PREVIOUSLY CONSULTED A PHYSICIAN, ETC. 

FN9  WILKINSON V. KITCHIN, 1 LORD RAYMOND 89; DECKER V. POPER, 1
SELWYN, NISI PRIUS (13TH ED.)  91; HENDRICK V. LINDSAY, 93 U.S. 143;
ARTHUR V. MORGAN, 112 U.S. 495; ANDERSON COUNTY COMMISSIONERS V. BEAL,
113 U.S. 227, 241-242; CHESAPEAKE & OHIO RY. CO. V. MARTIN, 283 U.S.
209, 216. 

MR. JUSTICE MURPHY, DISSENTING: 

IN VIEW OF THE HIGH VALUE AND IMPORTANCE ATTACHED BY CUSTOM AND
TRADITION TO THE RIGHT OF JURY TRIAL AS A FEATURE OF OUR FEDERAL
JURISPRUDENCE, AND THE SIGNIFICANT EMPHASIS PROVIDED BY THE FEDERAL AND
STATE CONSTITUTIONS, SCRUPULOUS CARE SHOULD BE EXERCISED BY COURTS AND
JUDGES TO AVOID RULINGS, ON MOTIONS FOR THE DIRECTION OF A VERDICT,
WHICH IN EFFECT WRONGFULLY DEPRIVE A LITIGANT OF THE CHERISHED RIGHT. 
ON SUCH A MOTION OUR FUNCTION IS NOT TO EVALUATE THE EVIDENCE FOR THE
PURPOSE OF DETERMINING WHETHER FRAUD HAS BEEN COMMITTED.  I AM UNABLE
TO AGREE WITH THE OPINION OF THE COURT, BECAUSE I THINK THERE WAS
SUFFICIENT EVIDENCE TO JUSTIFY SUBMITTING THE ISSUE OF FRAUD TO THE
JURY. 

THE OPINION OF THE COURT RECOGNIZES THAT THE TESTIMONY OF GLICKMAN
AND THE EVIDENCE OF THE GASTRO-INTESTINAL EXAMINATION WERE INSUFFICIENT
TO SUSTAIN THE DIRECTION OF A VERDICT, AND CORRECTLY STATES THE ISSUE
THUS:  "THE CASE OF THE GOVERNMENT FOR A DIRECTED VERDICT RESTS,
THEREFORE, UPON THE STATEMENTS OF PENCE MADE AFTER THE REINSTATEMENT OF
HIS INSURANCE AND CONTRADICTING THE REPRESENTATIONS IN HIS APPLICATION
FOR REINSTATEMENT."  SO STATED, THE CASE PRESENTS A CONTROVERTED
QUESTION OF FACT, AND, IN VIEW OF THE EVIDENCE IN THIS CASE, IT WAS FOR
THE JURY TO FIND THE ANSWER BY RESOLVING THE CONFLICT BETWEEN THE TWO
CONTRARY SETS OF SELF-SERVING STATEMENTS MADE BY PENCE. 

IT IS ADMITTED THAT "PENCE'S REPRESENTATIONS IN THE APPLICATION WERE
NOT EVIDENCE OF THEIR OWN VERACITY."  AS AN ABSTRACT MATTER ONE WOULD
SUPPOSE THAT PENCE'S LATER CONFLICTING STATEMENTS WERE LIKEWISE "NOT
EVIDENCE OF THEIR OWN VERACITY."  HOWEVER, IT IS SAID THAT REASONABLE
MEN HAVE NO CHOICE BUT TO ADMIT THE TRUTH OF THOSE LATER STATEMENTS,
BECAUSE THEY "WERE REPEATED, AND USUALLY UNDER OATH; THEY ARE IN NO WAY
IMPROBABLE, AND ARE THE STATEMENTS OF ONE WHO, HIMSELF A DOCTOR, SPOKE
WITH KNOWLEDGE OF THE SUBJECT AND BEARING OF HIS STATEMENTS."  THESE
FACTORS MIGHT BE PERSUASIVE TO A JURY THAT THE LATER STATEMENTS WERE
TRUE, BUT IT IS QUITE A DIFFERENT THING TO HOLD THAT THEY ABSOLUTELY
COMPEL BELIEF.  ON THE BASIS OF THE RECORD, AN EQUALLY PLAUSIBLE
PREMISE IS THAT THE STATEMENTS IN THE APPLICATION WERE THE TRUE ONES. 
PENCE WAS NEVER ABSENT FROM WORK FOR ANY APPRECIABLE PERIOD OF TIME. 
THE REPORTS OF HIS PHYSICAL EXAMINATIONS FROM 1928 TO HIS DEATH WERE
NOT ALTOGETHER CONSISTENT, AND ANY DEFECT DISCLOSED WAS EVIDENTLY
THOUGHT INSUFFICIENT TO WARRANT ALLOWING ANY OF HIS VARIOUS CLAIMS FOR
DISABILITY BENEFITS, ETC.  HIS WIDOW TESTIFIED THAT THEY WERE "PRETTY
CLOSE TO ONE ANOTHER," THAT SHE BELIEVED HE WOULD HAVE TOLD HER IF
ANYTHING WAS SERIOUSLY WRONG WITH HIM, AND THAT SHE HAD NO KNOWLEDGE OF
ANY SERIOUS AILMENT OR CONSULTATION WITH A PHYSICIAN ON HIS PART.  ALL
THIS CASTS DOUBT ON THE TRUTH OF PENCE'S STATEMENTS MADE AFTER HIS
APPLICATION FOR THE REINSTATEMENT OF HIS INSURANCE AND ENTITLED THE
JURY TO PASS JUDGMENT ON THEM. 

WHETHER PENCE WAS A MALINGERER OR NOT, DISAVOWING AND THEN ASSERTING
INJURY AND DISEASE AS A MEANS OF COLLECTING DIFFERENT BENEFITS FROM THE
GOVERNMENT, IS NOT FOR US TO DECIDE.  SUSPICION THAT SUCH WAS THE CASE
DOES NOT JUSTIFY USURPING THE JURY'S FUNCTION OF DETERMINING, IN THE
LIGHT OF ALL THE EVIDENCE, WHICH OF PENCE'S STATEMENTS WERE TRUE AND
WHICH WERE FALSE.  THE CASE WAS PROPERLY SUBMITTED TO THE JURY.  ITS
VERDICT, RENDERED ON SUBSTANTIAL EVIDENCE, SHOULD NOT HAVE BEEN SET
ASIDE. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS JOIN IN THIS DISSENT. 
..END :




MISHAWAKA MFG. CO. V. KRESGE CO., 316 U.S. 203 


NO. 649.  ARGUED APRIL 1, 1942.  - DECIDED MAY 4, 1942.  - 119 F.2D 316,
REVERSED. 


IN ORDER THAT HE MAY RECOVER PROFITS UNDER SEC. 19 OF THE TRADEMARK
ACT, THE TRADEMARK OWNER IS NOT REQUIRED TO PROVE THAT THE PURCHASERS
OF GOODS BEARING THE INFRINGING MARK WERE INDUCED BY IT TO BELIEVE THAT
THE GOODS WERE THE GOODS OF THE TRADEMARK OWNER AND PURCHASED FOR THAT
REASON, AND THAT THEY WOULD OTHERWISE HAVE BOUGHT OF HIM.  P. 206. 

MISHAWAKA RUBBER & WOOLEN MANUFACTURING CO. V. S.S. KRESGE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 314 U.S. 603, TO REVIEW THE AFFIRMANCE OF A DECREE IN A
SUIT TO ENJOIN INFRINGEMENTS OF A TRADEMARK AND FOR AN ACCOUNTING OF
PROFITS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, WHICH MANUFACTURES AND SELLS SHOES AND RUBBER HEELS,
EMPLOYS A TRADE-MARK, REGISTERED UNDER THE TRADE-MARK ACT OF 1905, 33
STAT. 724, 15 U.S.C. SEC. 81 ET SEQ., CONSISTING OF A RED CIRCULAR PLUG
EMBEDDED IN THE CENTER OF A HEEL.  THE HEELS WERE NOT SOLD SEPARATELY,
BUT WERE ATTACHED TO SHOES MADE BY THE PETITIONER.  IT HAS SPENT
CONSIDERABLE SUMS OF MONEY IN SEEKING TO GAIN THE FAVOR OF THE
CONSUMING PUBLIC BY PROMOTING THE MARK AS ASSURANCE OF A DESIRABLE
PRODUCT.  THE RESPONDENT SOLD HEELS NOT MADE BY THE PETITIONER BUT
BEARING A MARK DESCRIBED BY THE DISTRICT COURT AS "A CIRCULAR PLUG OF
RED OR REDDISH COLOR SO CLOSELY RESEMBLING THAT OF THE PLAINTIFF
(PETITIONER) THAT IT IS DIFFICULT TO DISTINGUISH THE PRODUCTS SOLD BY
THE DEFENDANT FROM THE PLAINTIFF'S PRODUCTS."  THE HEELS SOLD BY THE
RESPONDENT WERE INFERIOR IN QUALITY TO THOSE MADE BY THE PETITIONER,
AND "THIS TENDED TO DESTROY THE GOOD WILL CREATED BY THE PLAINTIFF IN
THE MANUFACTURE OF ITS SUPERIOR PRODUCT."  ALTHOUGH THERE WAS NO
EVIDENCE THAT PARTICULAR PURCHASERS WERE ACTUALLY DECEIVED INTO
BELIEVING THAT THE HEELS SOLD BY THE RESPONDENT WERE MANUFACTURED BY
THE PETITIONER, THE DISTRICT COURT FOUND THAT THERE WAS A "REASONABLE
LIKELIHOOD" THAT SOME PURCHASES MIGHT HAVE BEEN INDUCED BY THE
PURCHASER'S BELIEF THAT HE WAS OBTAINING THE PETITIONER'S PRODUCT. 
"THE ORDINARY PURCHASER, HAVING BECOME FAMILIAR WITH THE PLAINTIFF'S
TRADE-MARK, WOULD NATURALLY BE LED TO BELIEVE THAT THE HEELS MARKETED
BY THE DEFENDANT WERE THE PRODUCT OF THE PLAINTIFF COMPANY." 
CONCLUDING THAT THE PETITIONER'S MARK HAD THUS BEEN INFRINGED, THE
COURT ENJOINED FUTURE INFRINGEMENT AND ALSO ORDERED THAT THE RESPONDENT
ACCOUNT TO THE PETITIONER FOR PROFITS MADE FROM SALES "TO PURCHASERS
WHO WERE INDUCED TO BUY BECAUSE THEY BELIEVED THE HEELS TO BE THOSE OF
PLAINTIFF AND WHICH SALES PLAINTIFF WOULD OTHERWISE HAVE MADE." 

COMPLAINING OF THIS CRITERION FOR DETERMINING THE PROFITS THAT
IMPROPERLY ACCRUED TO THE RESPONDENT BY REASON OF THE INFRINGEMENT, THE
PETITIONER APPEALED TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT, WHICH AFFIRMED THE DECREE.  119 F.2D 316.  DEEMING THE MATTER
TO PRESENT AN IMPORTANT QUESTION UNDER THE TRADE-MARK ACT, WE BROUGHT
THE CASE HERE SOLELY TO REVIEW THE PROVISIONS OF THE DECREE DEALING
WITH THE MEASURE OF PROFITS AND DAMAGES FOR THE INFRINGEMENT FOUND BY
THE TWO LOWER COURTS.  WHETHER THERE WAS SUCH AN INFRINGEMENT AS TO
ENTITLE THE PETITIONER TO THE REMEDIES PROVIDED BY THE FEDERAL TRADE
MARK LAWS IS THEREFORE NOT OPEN HERE. 

THE PROTECTION OF TRADE-MARKS IS THE LAW'S RECOGNITION OF THE
PSYCHOLOGICAL FUNCTION OF SYMBOLS.  IF IT IS TRUE THAT WE LIVE BY
SYMBOLS, IT IS NO LESS TRUE THAT WE PURCHASE GOODS BY THEM.  A TRADE
MARK IS A MERCHANDISING SHORT-CUT WHICH INDUCES A PURCHASER TO SELECT
WHAT HE WANTS, OR WHAT HE HAS BEEN LED TO BELIEVE HE WANTS.  THE OWNER
OF A MARK EXPLOITS THIS HUMAN PROPENSITY BY MAKING EVERY EFFORT TO
IMPREGNATE THE ATMOSPHERE OF THE MARKET WITH THE DRAWING POWER OF A
CONGENIAL SYMBOL.  WHATEVER THE MEANS EMPLOYED, THE AIM IS THE SAME -
TO CONVEY THROUGH THE MARK, IN THE MINDS OF POTENTIAL CUSTOMERS, THE
DESIRABILITY OF THE COMMODITY UPON WHICH IT APPEARS.  ONCE THIS IS
ATTAINED, THE TRADE-MARK OWNER HAS SOMETHING OF VALUE.  IF ANOTHER
POACHES UPON THE COMMERCIAL MAGNETISM OF THE SYMBOL HE HAS CREATED, THE
OWNER CAN OBTAIN LEGAL REDRESS.  AND IN THIS CASE WE ARE CALLED UPON TO
ASCERTAIN THE EXTENT OF THE REDRESS AFFORDED FOR INFRINGEMENT OF A MARK
REGISTERED UNDER THE TRADE-MARK ACT OF 1905. 

THE "RIGHT TO BE PROTECTED AGAINST AN UNWARRANTED USE OF THE
REGISTERED MARK HAS BEEN MADE A STATUTORY RIGHT" BY THAT ACT.  THADDEUS
DAVIDS CO. V. DAVIDS MFG. CO., 233 U.S. 461, 471.  SECTION 19 OF THE
ACT PROVIDES THAT "UPON A DECREE BEING RENDERED IN ANY SUCH CASE FOR
WRONGFUL USE OF A TRADE-MARK THE COMPLAINANT SHALL BE ENTITLED TO
RECOVER, IN ADDITION TO THE PROFITS TO BE ACCOUNTED FOR BY THE
DEFENDANT, THE DAMAGES THE COMPLAINANT HAS SUSTAINED THEREBY, AND THE
COURT SHALL ASSESS THE SAME OR CAUSE THE SAME TO BE ASSESSED UNDER ITS
DIRECTION  ...  ; AND IN ASSESSING PROFITS THE PLAINTIFF SHALL BE
REQUIRED TO PROVE DEFENDANT'S SALES ONLY; DEFENDANT MUST PROVE ALL
ELEMENTS OF COST WHICH ARE CLAIMED."  FN1  33 STAT. 724, 729; 15 U.S.C.
SEC. 99.  INFRINGEMENT AND DAMAGE HAVING BEEN FOUND, THE ACT REQUIRES
THE TRADE-MARK OWNER TO PROVE ONLY THE SALES OF ARTICLES BEARING THE
INFRINGING MARK.  ALTHOUGH THE AWARD OF PROFITS IS DESIGNED TO MAKE THE
PLAINTIFF WHOLE FOR LOSSES WHICH THE INFRINGER HAS CAUSED BY TAKING
WHAT DID NOT BELONG TO HIM, CONGRESS DID NOT PUT UPON THE DESPOILED THE
BURDEN - AS OFTEN AS NOT IMPOSSIBLE TO SUSTAIN - OF SHOWING THAT BUT
FOR THE DEFENDANT'S UNLAWFUL USE OF THE MARK, PARTICULAR CUSTOMERS
WOULD HAVE PURCHASED THE PLAINTIFF'S GOODS. 

IF IT CAN BE SHOWN THAT THE INFRINGEMENT HAD NO RELATION TO PROFITS
MADE BY THE DEFENDANT, THAT SOME PURCHASERS BOUGHT GOODS BEARING THE
INFRINGING MARK BECAUSE OF THE DEFENDANT'S RECOMMENDATION OR HIS
REPUTATION OR FOR ANY REASON OTHER THAN A RESPONSE TO THE DIFFUSED
APPEAL OF THE PLAINTIFF'S SYMBOL, THE BURDEN OF SHOWING THIS IS UPON
THE POACHER.  THE PLAINTIFF OF COURSE IS NOT ENTITLED TO PROFITS
DEMONSTRABLY NOT ATTRIBUTABLE TO THE UNLAWFUL USE OF HIS MARK.  CF.
STRAUS V. NOTASEME CO., 240 U.S. 179, 183; COMPARE SHELDON V. METRO
GOLDWYN CORP., 309 U.S. 390; WESTINGHOUSE ELECTRIC CO. V. WAGNER MFG.
CO., 225 U.S. 604.  THE BURDEN IS THE INFRINGER'S TO PROVE THAT HIS
INFRINGEMENT HAD NO CASH VALUE IN SALES MADE BY HIM.  IF HE DOES NOT DO
SO, THE PROFITS MADE ON SALES OF GOODS BEARING THE INFRINGING MARK
PROPERLY BELONG TO THE OWNER OF THE MARK.  HAMILTON-BROWN SHOE CO. V.
WOLF BROS., 240 U.S. 251.  THERE MAY WELL BE A WINDFALL TO THE TRADE
MARK OWNER WHERE IT IS IMPOSSIBLE TO ISOLATE THE PROFITS WHICH ARE
ATTRIBUTABLE TO THE USE OF THE INFRINGING MARK.  BUT TO HOLD OTHERWISE
WOULD GIVE THE WINDFALL TO THE WRONGDOER.  IN THE ABSENCE OF HIS
PROVING THE CONTRARY, IT PROMOTES HONESTY AND COMPORTS WITH EXPERIENCE
TO ASSUME THAT THE WRONGDOER WHO MAKES PROFITS FROM THE SALES OF GOODS
BEARING A MARK BELONGING TO ANOTHER WAS ENABLED TO DO SO BECAUSE HE WAS
DRAWING UPON THE GOOD WILL GENERATED BY THAT MARK.  AND ONE WHO MAKES
PROFITS DERIVED FROM THE UNLAWFUL APPROPRIATION OF A MARK BELONGING TO
ANOTHER CANNOT RELIEVE HIMSELF OF HIS OBLIGATION TO RESTORE THE PROFITS
TO THEIR RIGHTFUL OWNER MERELY BY SHOWING THAT THE LATTER DID NOT
CHOOSE TO USE THE MARK IN THE PARTICULAR MANNER EMPLOYED BY THE
WRONGDOER. 

THE STARTING POINT OF THE CASE BEFORE US IS RESPONDENT'S INFRINGEMENT
OF THE PETITIONER'S TRADE-MARK IN VIOLATION OF THE FEDERAL ACT.  THE
DECREE IS ASSAILED BY THE PETITIONER BECAUSE, UPON ITS READING OF THE
DECREE, IT IS AWARDED ONLY THOSE PROFITS WHICH IT CAN AFFIRMATIVELY
PROVE TO HAVE RESULTED FROM SALES "TO PURCHASERS WHO WERE INDUCED TO
BUY BECAUSE THEY BELIEVED THE HEELS TO BE THOSE OF PLAINTIFF, AND WHICH
SALES PLAINTIFF WOULD OTHERWISE HAVE MADE."  WE ARE NOT PREPARED TO SAY
THAT SUCH IS NOT A SENSIBLE READING OF THE LANGUAGE IN WHICH THE DECREE
WAS CAST, THE PURPOSE OF WHICH WAS TO RECOVER PROFITS THAT CAME TO THE
RESPONDENT THROUGH ITS INFRINGEMENT AND THAT IN GOOD CONSCIENCE BELONG
TO THE PETITIONER.  THE DECREE IN EFFECT REQUIRES THE PETITIONER TO
PROVE BY A PROCESSION OF WITNESSES, THAT WHEN THEY BOUGHT HEELS FROM
THE INFRINGER THEY HAD A CLEAR, WELL-FOCUSSED CONSCIOUSNESS THAT THEY
WERE BUYING THE PETITIONER'S HEELS AND THAT OTHERWISE THEY WOULD NOT
HAVE BOUGHT THEM.  BUT THE SHOE IS ON THE OTHER FOOT.  THE CREATION OF
A MARKET THROUGH AN ESTABLISHED SYMBOL IMPLIES THAT PEOPLE FLOAT ON A
PSYCHOLOGICAL CURRENT ENGENDERED BY THE VARIOUS ADVERTISING DEVICES
WHICH GIVE A TRADE-MARK ITS POTENCY.  IT IS THAT WHICH THE TRADE-MARK
ACT OF 1905 PROTECTS.  WE THEREFORE VACATE THE DECREE IN ORDER THAT THE
CAUSE BE REMANDED TO THE DISTRICT COURT FOR THE ENTRY OF A DECREE IN
CONFORMITY WITH THIS OPINION.  IF THE PETITIONER SUFFERED DAMAGES
BEYOND THE LOSS OF PROFITS THE DECREE SHOULD PROVIDE FOR THE ASSESSMENT
OF SUCH DAMAGES.  REVERSED. 

FN1  THE COMMITTEE REPORTS UPON THE BILL WHICH BECAME THE 1905 ACT
MAKE THESE OBSERVATIONS ON SEC. 19:  "BY SECTION 19 PROVISION IS MADE
FOR PROCEEDINGS IN EQUITY AGAINST THE INFRINGER OF A REGISTERED TRADE
MARK.  THIS SECTION CORRESPONDS IN TERMS WITH SECTION 4921 OF THE
REVISED STATUTES RELATING TO PATENT CASES, EXCEPT THAT IT SPECIALLY
PROVIDES THE MANNER IN WHICH PROFITS SHALL BE ASCERTAINED.  UNDER
EXISTING RULES IT IS NECESSARY FOR THE COMPLAINANT TO PROVE SALES AND
COSTS WITH ENTIRE AND ABSOLUTE ACCURACY.  THE ONLY PERSONS HAVING
KNOWLEDGE OF THE COST OF MAKING THE SALES ARE THE DEFENDANT OR SOME ONE
IN HIS EMPLOY.  IT HAS SEEMED, THEREFORE, ONLY FAIR AND JUST THAT IF
THE COMPLAINANT PROVES THE SALES, THE DEFENDANT SHOULD BE REQUIRED TO
PRODUCE EVIDENCE OF THE EXPENSES HE WAS PUT TO IN MAKING SUCH SALES AS
AN OFFSET AGAINST THE SALES PROVEN BY THE COMPLAINANT."  SEN. REP. NO.
3278, 58TH CONG., 3D SESS., P. 10; H. REP. NO. 3147, 58TH CONG., 3D
SESS., P. 9. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE MURPHY CONCUR: 

MISHAWAKA DOES NOT SELL DETACHED RUBBER HEELS.  THE HEELS BEARING ITS
MARK ARE ATTACHED TO THE RUBBER BOOTS AND SHOES IT MANUFACTURES, AND
REACH THE MARKET ONLY AS PARTS OF THESE LARGER PRODUCTS.  KRESGE, ON
THE OTHER HAND, SELLS IN ITS RETAIL STORES DETACHED RUBBER HEELS
MANUFACTURED BY OTHERS.  HENCE, LIKE THE COURTS BELOW, I FIND IT
DIFFICULT TO CONCLUDE THAT THERE WERE SUBSTANTIAL PROBABILITIES OF
DECEPTION AND THAT KRESGE'S SALES TOOK AWAY BUSINESS THAT MIGHT
OTHERWISE HAVE GONE TO MISHAWAKA.  IN ANY EVENT, THE ECONOMIC RIVALRY,
IF IT EXISTED AT ALL, WAS SO REMOTE AND INDIRECT THAT AN INJUNCTION
ALONE WOULD SEEM TO HAVE AFFORDED AMPLE RELIEF AGAINST THE
INFRINGEMENT, FOUND BY BOTH COURTS BELOW TO HAVE BEEN WITHOUT
FRAUDULENT INTENT. 

MOREOVER, UPON THE EXTENSIVE EVIDENCE INTRODUCED BY BOTH PARTIES, THE
TRIAL COURT CONCLUDED THAT THERE WAS "NO DIRECT PROOF OF ANY ORDINARY
PURCHASER BEING MISLED INTO BELIEVING THAT HEELS MARKETED BY THE
DEFENDANT WERE PRODUCTS OF THE PLAINTIFF COMPANY."  THE CIRCUIT COURT
OF APPEALS REACHED A SIMILAR CONCLUSION:  "NO JUSTIFICATION IS FOUND IN
THE RECORD FOR AN INFERENCE THAT ANY ONE APPEARS TO HAVE BEEN DECEIVED
BY APPELLEE'S TRADE-MARK INTO PURCHASING ITS SHOE HEELS AND LIFTS IN
THE BELIEF THAT HE WAS PURCHASING SHOE HEELS PRODUCED BY APPELLANT." 
119 F.2D 316, 324. 

IF THE RESPONDENT HAD WILFULLY PALMED OFF THE HEELS IT SOLD AS
PRODUCTS OF THE PETITIONER, AND IF IT HAD BEEN SHOWN THAT THE
PETITIONER HAD SUFFERED ANY INJURY, I SHOULD AGREE TO A DECISION
RESOLVING DOUBTS ABOUT THE MEASURE OF DAMAGES IN FAVOR OF THE
PETITIONER.  BUT UNDER THE CIRCUMSTANCES OF THIS CASE, I BELIEVE THE
EFFECT OF THE DECISION HANDED DOWN IS TO GRANT A WINDFALL TO THE
PETITIONER AND TO IMPOSE A PENALTY UPON THE RESPONDENT, NEITHER OF
WHICH IS DESERVED.  FINDING NOTHING IN THE TRADE-MARK ACT OF 1905 WHICH
COMPELS SUCH A RESULT, I CAN SEE NO ABUSE OF DISCRETION IN THE DECREE
OF THE TRIAL COURT WHICH THE CIRCUIT COURT OF APPEALS AFFIRMED. 
SAXLEHNER V. SIEGEL-COOPER CO., 179 U.S. 42.  CF. STRAUS V. NOTASEME
CO., 240 U.S. 179, 182-183. 
..END :






















U.S. V. CITIZENS LOAN CO., 316 U.S. 209 


NO. 738.  ARGUED APRIL 6, 1942.  - DECIDED MAY 4, 1942.  - 74 APP. D.C.
244, 122 F.2D 638, REVERSED. 


1.  UNDER SEC. 303 OF THE WORLD WAR VETERANS ACT OF 1924, AS AMENDED
BY ACT OF 1925, WHERE THE BENEFICIARY OF A YEARLY RENEWABLE TERM
INSURANCE POLICY DIES, AFTER HAVING RECEIVED PART OF THE 240 MONTHLY
INSTALLMENTS PROVIDED FOR IN THE CONTRACT, AND THE ESTATE OF THE
INSURED BECOMES ENTITLED, THE AMOUNT PAYABLE TO THE ESTATE IS THE
PRESENT VALUE OF REMAINING UNPAID INSTALLMENTS, COMPUTED AS OF THE DATE
OF THE BENEFICIARY'S DEATH, EXCLUDING INTEREST.  P. 214. 

2.  THE FACT THAT, BECAUSE OF THE REFUSAL OF THE GOVERNMENT TO
RECOGNIZE THE CLAIM, ITS PAYMENT WAS DELAYED UNTIL AFTER THE PERIOD FOR
MONTHLY PAYMENTS PROVIDED IN THE POLICY HAD EXPIRED, DID NOT ENTITLE
THE ESTATE IN THIS CASE TO HAVE THE INTEREST INCLUDED IN COMPUTING THE
PRESENT VALUE OF SUCH INSTALLMENTS.  P. 214. 

3.  THE PROVISION OF THE AMENDATORY ACT OF 1925 THAT PRESENT VALUE
SHALL BE COMPUTED "AS OF THE DATE OF THE LAST PAYMENT MADE UNDER ANY
EXISTING AWARD," IS CONFINED TO CASES WHERE, PRIOR TO 1924, PART
PAYMENT TO SUCH ESTATES HAD BEEN MADE IN MONTHLY INSTALLMENTS,
INCLUDING INTEREST; AND THE PURPOSE OF THE AMENDMENT WAS TO AVOID THE
RETRACTION OF INTEREST ALREADY SO PAID, WHICH WOULD OTHERWISE RESULT
FROM THE RETROACTIVE LUMP SUM PROVISION OF THE 1924 ACT.  P. 213. 

UNITED STATES V. CITIZENS LOAN & TRUST CO., ADMINISTRATOR. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 314 U.S. 605, TO REVIEW A JUDGMENT RECOVERED IN A SUIT ON
A VETERAN'S INSURANCE POLICY IN THE DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA.  THE COURT BELOW, ON THE PLAINTIFF'S APPEAL, DIRECTED THAT
THE RECOVERY BE INCREASED. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

JOSEPH KELLY KERR, WHILE IN THE UNITED STATES ARMY DURING THE LAST
WAR, TOOK OUT A YEARLY RENEWABLE TERM INSURANCE POLICY IN THE AMOUNT OF
$10,000, NAMING AS BENEFICIARY HIS FATHER, EUGENE KERR.  THE INSURED
DIED NOVEMBER 8, 1919.  ON MARCH 6, 1920, THE WAR RISK BUREAU DENIED
ANY LIABILITY UNDER THE CONTRACT.  EUGENE KERR, THE DESIGNATED
BENEFICIARY, DIED JUNE 24, 1924.  THIS SUIT WAS FILED NOVEMBER 6,
1925. 

IN THE DISTRICT COURT, JUDGMENT WAS RENDERED DENYING ANY RECOVERY ON
THE POLICY.  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, ON
DECEMBER 4, 1939, REVERSED THE JUDGMENT OF THE DISTRICT COURT.  71 APP.
D.C. 222, 108 F.2D 585.  THE DISTRICT COURT, ON APRIL 5, 1940, ENTERED
JUDGMENT FOR $3,220.00 IN FAVOR OF THE ESTATE OF EUGENE KERR, THE
BENEFICIARY UNDER THE POLICY, AND A JUDGMENT FOR $10,580.00 IN FAVOR OF
THE ESTATE OF THE INSURED, JOSEPH KELLY KERR.  UPON REHEARING, THE
DISTRICT COURT, BY ITS ORDER OF JANUARY 9, 1941, REDUCED THE LATTER
JUDGMENT TO $8,227.50.  ON APPEAL, THE COURT OF APPEALS AGAIN REVERSED
THE DISTRICT COURT AND ORDERED THE PAYMENT OF $10,580.00.  74 APP. D.C.
244, 122 F.2D 638.  WE GRANTED CERTIORARI, 314 U.S. 605. 

THE INSURANCE CONTRACT PROVIDED FOR THE PAYMENT OF 240 MONTHLY
INSTALLMENTS OF $57.50 EACH.  IT IS NOT DISPUTED THAT EUGENE KERR, AS
BENEFICIARY, WAS ENTITLED TO RECEIVE THE 56 MONTHLY INSTALLMENTS THAT
ACCRUED DURING HIS LIFETIME.  FN1  THEY AGGREGATED $3,220.00.  THE
PORTION OF THE DISTRICT COURT'S JUDGMENT WHICH AWARDED THAT SUM TO
EUGENE KERR'S ESTATE IS NOT IN CONTROVERSY. 

THE ISSUE HERE INVOLVES ONLY THE AMOUNT DUE THE ESTATE OF JOSEPH
KELLY KERR, THE INSURED, ON THE 184 INSTALLMENTS REMAINING AFTER THE
DEATH OF THE BENEFICIARY.  THE GOVERNMENT CONTENDS THAT THE AMOUNT DUE
THE ESTATE IS $8,234, WHICH REPRESENTS THE PRESENT VALUE OF THE 184
INSTALLMENTS COMPUTED AS OF THE DEATH OF THE BENEFICIARY ON JUNE 24,
1924.  RESPONDENT ARGUES THAT THE AMOUNT DUE IS $10,580, WHICH IS THE
AGGREGATE OF 184 INSTALLMENTS OF $57.50 EACH.  FN2 

PRIOR TO 1924, THE STATUTES OF THE UNITED STATES DIRECTED THAT, WHEN
THE ESTATE OF AN INSURED BECAME ELIGIBLE TO PROCEEDS UNDER THE
CONTRACT,  FN3  THEY SHOULD BE PAID IN REGULAR MONTHLY INSTALLMENTS. 
THE MOST RECENT ENACTMENT PRIOR TO THAT YEAR WAS THE ACT OF AUGUST 9,
1921, WHICH PROVIDED: 

"IF NO PERSON WITHIN THE PERMITTED CLASS OF BENEFICIARIES SURVIVE THE
INSURED, THEN THERE SHALL BE PAID TO THE ESTATE OF THE INSURED THE
MONTHLY INSTALLMENTS PAYABLE AND APPLICABLE UNDER THE PROVISIONS OF
ARTICLE IV OF THE WAR RISK INSURANCE ACT (ACT OF OCTOBER 6, 1917, C.
105, 40 STAT. 398, 409)  ...  "  FN4 

THE WORLD WAR VETERANS ACT OF 1924  FN5  SUPERSEDED THE WAR RISK
INSURANCE ACT OF 1917 AND ITS AMENDMENTS.  IT PROVIDED, IN SEC. 303: 

"IF NO PERSON WITHIN THE PERMITTED CLASS OF BENEFICIARIES SURVIVE THE
INSURED, OR IF BEFORE THE COMPLETION OF PAYMENTS THE BENEFICIARY OR
BENEFICIARIES SHALL DIE AND THERE BE NO SURVIVING PERSON WITHIN SAID
PERMITTED CLASS, THEN THERE SHALL BE PAID TO THE ESTATE OF THE INSURED
THE PRESENT VALUE OF THE MONTHLY INSTALLMENTS THEREAFTER PAYABLE UNDER
THE PROVISIONS OF THIS TITLE  ...  " 

THIS SECTION ALTERED THE METHOD OF PAYMENT ONLY WITH RESPECT TO
BENEFITS PAYABLE TO THE ESTATES OF INSURED.  IT DID NOT CHANGE THE
METHOD OF PAYMENT TO BENEFICIARIES.  ITS OBVIOUS PURPOSE WAS TO HAVE
THE OBLIGATION TO THE ESTATE PAID IN ONE LUMP SUM RATHER THAN IN
MONTHLY INSTALLMENTS.  SINCE THESE INSTALLMENTS INCLUDED INTEREST AS
WELL AS PRINCIPAL, CONGRESS DESIRED TO ELIMINATE THE INTEREST WHEN IT
PROVIDED FOR THE LUMP SUM PAYMENT.  ACCORDINGLY, IT DECLARED THAT THE
LUMP SUM SHOULD BE EQUAL TO "THE PRESENT VALUE OF THE MONTHLY
INSTALLMENTS THEREAFTER PAYABLE."  THE WORD "THEREAFTER" PLAINLY
RELATES TO THE DEATH OF THE BENEFICIARY, IN A CASE LIKE THE ONE BEFORE
US. AND THIS HAS BEEN THE INTERPRETATION PLACED UPON THE SECTION BY THE
VETERANS ADMINISTRATION EVER SINCE, THE REQUIREMENT BEING THAT THE
PRESENT VALUE IS TO BE COMPUTED AS OF THE DATE OF THE DEATH OF THE
BENEFICIARY. 

IN 1925, SEC. 303 WAS AMENDED IN SEVERAL RESPECTS.  FN6  THE ONLY ONE
OF THESE WHICH IS IMPORTANT HERE IS THE ADDITION OF THE FOLLOWING
WORDS:  "SAID VALUE TO BE COMPUTED AS OF THE DATE OF LAST PAYMENT MADE
UNDER ANY EXISTING AWARD."  AND THIS IS IMPORTANT ONLY BECAUSE OF THE
CONFUSION WHICH IT HAS GENERATED IN THE DISPOSITION OF THIS CASE. 
ACCORDING TO A LETTER ADDRESSED TO THE SOLICITOR GENERAL BY THE
ADMINISTRATOR OF THE VETERANS ADMINISTRATION ON JULY 14, 1941, THE
LANGUAGE QUOTED WAS ADDED TO SEC. 303 TO CORRECT A SPECIFIC INEQUITY
WHICH HAD ARISEN IN A NUMBER OF CASES FOLLOWING THE 1924 ACT BUT WHICH
IS NOT ENCOUNTERED HERE.  THAT INEQUITY AROSE IN THIS WAY:  IN SEVERAL
CASES THE ESTATE OF THE INSURED HAD BECOME ENTITLED TO THE PROCEEDS OF
THE POLICY PRIOR TO 1924 AND A NUMBER OF THE $57.50 MONTHLY
INSTALLMENTS HAD ALREADY BEEN PAID TO THE ESTATE OF THE INSURED AT THE
TIME CONGRESS ENACTED SEC. 303 WITH ITS PROVISION FOR A LUMP SUM
PAYMENT TO THE ESTATE.  SINCE SEC. 303 WAS MADE RETROACTIVE TO OCTOBER
6, 1917, THE AMOUNT DUE THE ESTATE IN THESE CASES, AS IN THE OTHERS,
WAS HELD TO BE THE PRESENT VALUE OF THE INSTALLMENTS REMAINING DUE
AFTER THE DEATH OF THE BENEFICIARY, COMPUTED AS OF THE DATE OF DEATH OF
THE BENEFICIARY.  BUT IN THESE CASES, UNLIKE THE OTHERS, THAT PORTION
OF THE INSTALLMENTS ALREADY PAID TO THE ESTATE WHICH REPRESENTED
INTEREST HAD TO BE DEDUCTED FROM THE LUMP SUM AWARD.  TO AVOID THIS
PARTIAL WITHDRAWAL OF FUNDS WHICH HAD ACTUALLY BEEN RELEASED IN THESE
PARTICULAR CASES, CONGRESS PROVIDED IN THE 1925 AMENDMENT THAT THE
"PRESENT VALUE OF THE MONTHLY INSTALLMENTS THEREAFTER PAYABLE" SHOULD
BE COMPUTED "AS OF DATE OF LAST PAYMENT MADE UNDER ANY EXISTING
AWARD."  UNDER THIS FORMULA, THE INSTALLMENTS WHICH HAD BEEN PAID TO
THE ESTATE OF AN INSURED PRIOR TO 1924 WERE NOT DISTURBED.  THE
VETERANS ADMINISTRATION HAS CONSISTENTLY TREATED THE 1925 AMENDMENT AS
APPLICABLE ONLY TO THIS LIMITED NUMBER OF CASES.  IN THE OTHERS, IT HAS
INVARIABLY COMPUTED THE "PRESENT VALUE" AS OF THE DATE OF DEATH OF THE
BENEFICIARY.  THIS ADMINISTRATIVE INTERPRETATION OVER A PERIOD OF 17
YEARS, CONTROLLING THE SETTLEMENT OF THOUSANDS OF CASES, IS ENTITLED TO
GREAT WEIGHT, "AND SUCH CONSTRUCTION IS NOT TO BE OVERTURNED UNLESS
CLEARLY WRONG, OR UNLESS A DIFFERENT CONSTRUCTION IS PLAINLY
REQUIRED."  UNITED STATES V. JACKSON, 280 U.S. 183, 193. 

IN THIS CASE, NO AWARD HAD BEEN MADE PRIOR TO 1924, AND HENCE THE
AMOUNT DUE TO THE INSURED'S ESTATE COULD NOT BE COMPUTED "AS OF DATE OF
LAST PAYMENT MADE UNDER ANY EXISTING AWARD."  THIS LANGUAGE OF THE 1925
AMENDMENT THEREFORE CANNOT BE APPLIED TO THE FACTS HERE.  BUT IT DOES
NOT FOLLOW THAT THE BALANCE OF SEC. 303 DOES NOT APPLY.  INDEED, SEC.
303 IS THE ONLY PRESENT AUTHORITY FOR THE MAKING OF ANY PAYMENTS TO THE
ESTATE OF THE INSURED.  FN7  DISREGARDING THE WORDS ADDED BY THE 1925
AMENDMENT, THE SECTION SIMPLY REQUIRES THE PAYMENT TO THE ESTATE OF A
LUMP SUM EQUAL TO "THE PRESENT VALUE OF THE MONTHLY INSTALLMENTS
THEREAFTER PAYABLE."  AND THE LATTER LANGUAGE, AS WE HAVE SAID, HAS
BEEN CONSISTENTLY INTERPRETED TO MEAN "PRESENT VALUE" AS OF THE DATE OF
DEATH OF THE BENEFICIARY. 

THE COURT OF APPEALS WAS OF THE OPINION THAT, BECAUSE RECOGNITION OF
THE CLAIM HAD BEEN DELAYED UNTIL AFTER THE PASSAGE OF THE 240 MONTHS,
THE PRINCIPLES OF COMPUTATION EMBODIED IN THE 1924 ACT AND THE 1925
AMENDMENT REQUIRED A SETTLEMENT AS IF THERE HAD BEEN AN AWARD OF
MONTHLY INSTALLMENTS.  THAT IS, IT TOOK THE VIEW THAT THE 184 MONTHLY
INSTALLMENTS CONCEDEDLY DUE TO THE ESTATE SHOULD BE MULTIPLIED BY
$57.50, WHICH REPRESENTS A PAYMENT OF INTEREST AS WELL AS PRINCIPAL,
AND THE RESULTING TOTAL OF $10,580 AWARDED TO RESPONDENT.  BUT ONE OF
THE PURPOSES OF THE 1924 AND 1925 ENACTMENTS WAS TO ABOLISH THE MONTHLY
INSTALLMENT METHOD OF SETTLING THE CLAIMS OF VETERANS' ESTATES. 
CONGRESS COULD NOT HAVE MADE CLEARER ITS INTENTION THAT THE VALUE OF
THE REMAINING INSTALLMENTS, PURGED OF INTEREST, SHOULD BE PAID IN A
LUMP SUM TO THE ESTATE.  BOTH THE VETERANS ADMINISTRATION AND THIS
COURT HAVE RECOGNIZED A LEGISLATIVE POLICY AGAINST THE ALLOWANCE OF
INTEREST ON PAST DUE PAYMENTS ON THESE POLICIES.  UNITED STATES V.
WORLEY, 281 U.S. 339.  THE ERROR WHICH UNDERMINES RESPONDENT'S
CONTENTION AND THE DECISION OF THE COURT OF APPEALS IS THE FAILURE TO
GIVE FULL EFFECT TO THIS CONGRESSIONAL PURPOSE TO ELIMINATE INTEREST
FROM THE LUMP SUM SETTLEMENT. 

THE COURT OF APPEALS WAS EVIDENTLY IMPRESSED BY THE DELAY IN THE
SETTLEMENT OF RESPONDENT'S CLAIM.  WE SHARE THAT CONCERN.  THE INSURED
DIED ALMOST 23 YEARS AGO AND FINAL DISPOSITION OF THE CASE IS ONLY NOW
IN VIEW.  BUT RESPONSIBILITY FOR THE DELAY IS NOT EASILY APPORTIONED. 
FN8  AND IN ANY EVENT, IT COULD NOT INFLUENCE OUR CONSTRUCTION OF THE
LANGUAGE OF THE STATUTE.  CONGRESS HAS AUTHORIZED NEITHER THE PAYMENT
OF DAMAGES FOR THE DELAY NOR AN AWARD OF INTEREST ON PAST DUE
OBLIGATIONS INCURRED UNDER THESE INSURANCE CERTIFICATES, AND IT IS NOT
WITHIN OUR POWER TO DO SO. 

THE CASE IS REMANDED FOR REINSTATEMENT OF THE JUDGMENT OF THE
DISTRICT COURT.  REVERSED. 

FN1  I.E. FROM NOV. 8, 1919, THE DATE OF THE DEATH OF THE INSURED,
THROUGH JUNE 8, 1924, THE LAST DUE DATE FOR A MONTHLY INSTALLMENT PRIOR
TO THE BENEFICIARY'S DEATH. 

FN2  IT IS AGREED THAT, HOWEVER THIS ISSUE IS RESOLVED, RESPONDENT'S
RECOVERY IS SUBJECT TO A DEDUCTION OF $6.50, THE AMOUNT OF A PREMIUM
DUE ON THE POLICY FOR NOVEMBER 1919, THE MONTH DURING WHICH THE INSURED
DIED. 

FN3  THE CLAIM TO THE PROCEEDS MIGHT FALL TO THE ESTATE IN SEVERAL
WAYS, SUCH AS BY THE DEATH OF THE NAMED BENEFICIARY OR BY THE DEATH OF
AN INSURED WHO HAS DESIGNATED NO BENEFICIARY.  SINCE THE RESPONDENT IN
THIS CASE BECAME ENTITLED AS OF THE DEATH OF EUGENE KERR, THE
BENEFICIARY, THE LATTER WILL BE SPOKEN OF AS THE CRITICAL EVENT IN OUR
DISCUSSION. 

FN4  SEC. 407, 42 STAT. 148. 

FN5  C. 320, 43 STAT. 607. 

FN6  43 STAT. 1310. 

FN7  THE INSURANCE CONTRACT IS EXPRESSLY MADE SUBJECT TO THE WAR RISK
INSURANCE ACT OF 1917, AND ALL AMENDMENTS THERETO.  SEE WHITE V. UNITED
STATES, 270 U.S. 175, 180. 

FN8  ALTHOUGH THE VETERANS BUREAU DENIED RECOVERY ON THE POLICY IN
1920, IT WAS NOT UNTIL 1925 THAT THIS SUIT WAS INSTITUTED. 
..END :







SWIFT & CO. V. UNITED STATES, 316 U.S. 216 


NO. 595.  ARGUED MARCH 6, 9, 1942.  - DECIDED MAY 4, 1942.  - AFFIRMED. 


1.  TRANSPORTATION BY RAILROAD OF LIVESTOCK IN CARLOAD LOTS TO PUBLIC
STOCKYARDS INCLUDES UNLOADING INTO SUITABLE PENS.  SEC. 15, INTERSTATE
COMMERCE ACT.  P. 223. 

2.  WHETHER THE USE OF STOCKYARDS FACILITIES FOR EGRESS OF LIVESTOCK
TO THE PUBLIC STREET AFTER UNLOADING IS A PART OF THE TRANSPORTATION
SERVICE FOR WHICH CHARGES MAY REASONABLY BE MADE, IS A QUESTION TO BE
DECIDED BY THE INTERSTATE COMMERCE COMMISSION IN THE EXERCISE OF ITS
JUDGMENT UPON THE FACTS OF EACH PARTICULAR CASE, AND NOT FOR DECISION
ACCORDING TO ANY FIXED RULE OF LAW.  P. 225. 

3.  PURSUANT TO LONG AND UNIFORM PRACTICE, DIRECT SHIPMENTS OF
LIVESTOCK MADE BY CHICAGO MEAT PACKERS TO THEMSELVES AT THE CHICAGO
STOCKYARDS ARE THERE UNLOADED IN PENS FURNISHED BY THE STOCKYARDS
COMPANY - A SERVICE FOR WHICH THE CARRIER PAYS THE STOCKYARDS,
ABSORBING THE CHARGE IN ITS TRANSPORTATION RATES; AND FURTHER "YARDAGE"
CHARGES ARE COLLECTED BY THE STOCKYARDS COMPANY FROM THE PACKERS FOR
SUBSEQUENT STOCKYARDS SERVICES, INCLUDING THE USE OF THE STOCKYARDS
PROPERTY FOR EGRESS OF THE LIVESTOCK TO THE PUBLIC STREET.  THE PACKING
COMPANIES ASKED THE INTERSTATE COMMERCE COMMISSION TO ESTABLISH RULES
AND PRACTICES UNDER WHICH THEY MIGHT OBTAIN DELIVERY OF THE LIVESTOCK
IN THE PENS, WITH EGRESS FOR ITS IMMEDIATE REMOVAL TO THE NEAREST
PUBLIC STREET BY A WAY TO BE DESIGNATED BY THE CARRIERS, WITHOUT
PAYMENT OF YARDAGE CHARGES TO THE STOCKYARDS COMPANY OR OF ANY CHARGES
OTHER THAN THE LINE-HAUL RATES.  HELD: 

(1)  IN DETERMINING THE REASONABLENESS OF THE PRACTICE, THE
COMMISSION PROPERLY CONSIDERED ITS EVOLUTION, INCLUDING THE HISTORY OF
DEALINGS BETWEEN THE PACKERS AND THE STOCKYARDS COMPANY, AND CONSIDERED
THE EFFECT OF THE EXISTING AND PROPOSED PRACTICES ON THE INTERESTS OF
THE CARRIERS, THE PUBLIC AND OTHER SHIPPERS.  P. 225. 

(2)  A FINDING BY THE COMMISSION THAT THE PRACTICE IS REASONABLE IS
SUPPORTED BY EVIDENCE AND IS THEREFORE CONCLUSIVE ON THIS COURT.  P.
231. 

(3)  THE COMMISSION, HAVING DECIDED THAT TRANSPORTATION ENDED WITH
THE UNLOADING OF THE LIVESTOCK INTO THE UNLOADING PENS, RIGHTLY
CONCLUDED THAT IT HAD NO JURISDICTION TO INQUIRE INTO THE
REASONABLENESS OF PRACTICES OR CHARGES OF THE STOCKYARDS COMPANY BEYOND
THAT POINT.  P. 231. 

(4)  IN SO FAR AS THE STOCKYARDS COMPANY IS AN AGENCY IN
TRANSPORTATION, IT IS SUBJECT TO THE INTERSTATE COMMERCE ACT AND TO THE
CONTROL OF THE INTERSTATE COMMERCE COMMISSION.  IN SO FAR AS IT
PERFORMS STOCKYARDS SERVICES, IT IS SUBJECT TO THE PACKERS AND
STOCKYARDS ACT AND TO REGULATION BY THE SECRETARY OF AGRICULTURE.  P.
232. 

SWIFT & CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, THREE JUDGES SITTING,
WHICH DISMISSED A BILL TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

SWIFT & COMPANY AND OMAHA PACKING COMPANY, ITS WHOLLY-OWNED
SUBSIDIARY, FILED WITH THE INTERSTATE COMMERCE COMMISSION A COMPLAINT
AGAINST THE COMMON CARRIERS BY RAILROAD WHICH SERVED THE CHICAGO UNION
STOCK YARDS, OPERATED BY THE UNION STOCK YARD & TRANSIT COMPANY.  FN1
THEY WERE LATER JOINED BY ARMOUR & COMPANY, AS INTERVENOR, TO
CONSTITUTE THE INTEREST REFERRED TO HEREIN AS THE PACKERS.  ALTHOUGH
ARMOUR SOUGHT NO RELIEF, IT WAS ALLOWED TO INTERVENE BECAUSE IT WAS AT
THE TIME LITIGATING IN THE COURTS A SIMILAR COMPLAINT, WHICH WAS LATER
PASSED ON BY THIS COURT IN ARMOUR & CO. V. ALTON R. CO., 312 U.S. 195. 
THE COMPLAINT IN THIS CASE CONCERNED PRACTICES OF THE UNION STOCK YARD
& TRANSIT COMPANY AND CHARGES COLLECTED BY IT FROM THE PACKERS, BUT THE
YARD COMPANY WAS NOT A PARTY TO THE PROCEEDINGS.  THE PACKERS SOUGHT A
REVISION OF THE YARD COMPANY'S PRACTICES, WHICH THEY SAID WERE PART OF
THE CARRIER-SHIPPER RELATION, THROUGH THE EXERCISE OF THE INTERSTATE
COMMERCE COMMISSION'S JURISDICTION OVER THE RAILROADS AND OVER
TRANSPORTATION. 

THE COMPLAINT CHARGED THAT THE PACKERS SHIPPED OVER LINES OF
DEFENDANT CARRIERS FROM VARIOUS POINTS OF ORIGIN THROUGHOUT THE UNITED
STATES TO CHICAGO, ILLINOIS, WHAT ARE KNOWN AS "DIRECT SHIPMENTS" OF
LIVESTOCK.  "DIRECT SHIPMENTS" REFERS TO LIVESTOCK CONSIGNED DIRECTLY
TO A PACKER AT THE UNION STOCK YARDS, AS DISTINGUISHED FROM A SHIPMENT
CONSIGNED TO A COMMISSION MERCHANT AT THE STOCK YARDS FOR SALE.  FN2
DIRECT SHIPMENTS ARE GENERALLY OF LIVESTOCK WHICH HAS BEEN PURCHASED BY
THE PACKER OR ITS BUYERS AT COUNTRY POINTS OR AT MARKETS OTHER THAN
CHICAGO.  ON ARRIVAL, THE CARS CONTAINING THE LIVESTOCK ARE PLACED AT
UNLOADING OR CHUTE PENS OF THE YARD COMPANY BY THE RAILROAD EMPLOYEES,
AND THE STOCK IS THEN UNLOADED AND PLACED IN THE PENS BY EMPLOYEES OF
THE YARD COMPANY.  FOR THIS UNLOADING SERVICE, THE YARD COMPANY IS PAID
AT PUBLISHED TARIFF RATES  FN3  BY THE RAILROADS, WHICH ABSORB THE
CHARGE OUT OF THEIR LINE-HAUL RATES. 

THE PACKERS DESIRE IMMEDIATELY TO TAKE THEIR CONSIGNMENTS FROM THESE
UNLOADING PENS AND INSIST THAT THEY DESIRE NO FURTHER SERVICES, AND, OF
COURSE, DESIRE TO INCUR NO FURTHER CHARGES. 

THE YARD COMPANY, HOWEVER, UNDER TARIFFS FILED WITH THE SECRETARY OF
AGRICULTURE PURSUANT TO THE PACKERS AND STOCKYARDS ACT,  FN4  IMPOSES
UPON THE PACKERS A SCHEDULE OF CHARGES KNOWN AS YARDAGE CHARGES, WHICH
VARY FROM TEN CENTS TO FORTY-FIVE CENTS PER HEAD OF STOCK.  THE PACKERS
SAY THAT THEY DESIRE NONE OF THE SERVICES, SUCH AS WEIGHING, WATERING,
FEEDING, OR HOLDING, WHICH YARDAGE CHARGES COMPENSATE, AND DESIRE ONLY
TO MOVE THEIR STOCK IMMEDIATELY FROM THE UNLOADING PENS TO THE PUBLIC
STREETS, WITHOUT PAYMENT OF THE YARDAGE CHARGES.  CONTENDING THAT IT IS
THEIR LEGAL RIGHT SO TO OBTAIN DELIVERY, THE PACKERS MADE SUFFICIENT
DEMAND UPON THE YARD COMPANY AND UPON THE RAILROAD COMPANIES FOR
IMMEDIATE AND FREE DELIVERY OF THEIR STOCK FROM THE UNLOADING PENS. 
THIS WAS REFUSED, AND YARDAGE CHARGES HAVE BEEN PAID TO THE YARD
COMPANY UNDER PROTEST.  THE PACKERS DEMANDED FROM THE COMMISSION RELIEF
BY WAY OF REPARATION, AND ASKED THE COMMISSION TO ESTABLISH RULES AND
PRACTICES UNDER WHICH THEY MAY OBTAIN DELIVERY TO THEMSELVES BY THE
RAILROADS OF DIRECT SHIPMENTS AT THE UNION STOCK YARDS IN CONVENIENT,
SAFE, AND SUITABLE PENS, WITH EGRESS FOR THE IMMEDIATE REMOVAL OF THE
LIVESTOCK TO THE NEAREST PUBLIC STREET, BY A WAY TO BE DESIGNATED BY
THE RAILROADS, WITHOUT THE PAYMENT OF ANY YARDAGE CHARGES TO THE UNION
STOCK YARDS & TRANSIT COMPANY, AND WITHOUT THE PAYMENT OF ANY CHARGES
OTHER THAN THE LINE-HAUL TRANSPORTATION CHARGES OF THE RAILROADS. 

THE COMMISSION, AFTER HEARINGS, DENIED THE PACKERS RELIEF, FOR
REASONS LATER TO BE CONSIDERED.  IT FOUND THAT THE DELIVERY OF STOCK
CONSIGNED BY THE PACKERS TO THEMSELVES AT THE STOCK YARDS, INTO THE
YARD COMPANY'S PENS WITHOUT AFFORDING FREE EGRESS FOR THE SHIPMENTS, IS
NOT AN UNREASONABLE PRACTICE ON THE PART OF THE CARRIERS, AND THAT THE
YARDAGE CHARGES THEREAFTER ASSESSED BY THE UNION STOCKYARDS & TRANSIT
COMPANY ARE NOT SUBJECT TO THE COMMISSION'S JURISDICTION.  238 I.C.C.
179. 

APPELLANTS SWIFT AND OMAHA THEN BROUGHT SUIT IN A DISTRICT COURT OF
THREE JUDGES FOR A DECREE PERMANENTLY SUSPENDING AND ANNULLING THE
ORDER OF THE COMMISSION AND FOR A REMAND OF THE COMPLAINT FOR DECISION
IN ACCORDANCE WITH PRINCIPLES OF LAW TO BE DETERMINED BY THE COURT. 
APPELLANT ARMOUR INTERVENED, AND PARTICIPATED IN THE TRIAL.  THE
RAILROADS WHICH HAD BEEN NAMED AS DEFENDANTS BEFORE THE COMMISSION ALSO
INTERVENED, AS DEFENDANTS IN THE DISTRICT COURT.  AFTER HEARING, THE
DISTRICT COURT HELD, WITHOUT OPINION, THAT THE COMMISSION'S FINDINGS
WERE PROPERLY SUPPORTED BY EVIDENCE; THAT THE FINDINGS MADE BY THE
COMMISSION WERE ADEQUATE TO SUPPORT ITS CONCLUSION; THAT THE PRACTICES
COMPLAINED OF WERE NOT UNREASONABLE; AND THAT THE COMMISSION DID NOT
HAVE JURISDICTION OF THE YARDAGE CHARGES.  IT DISMISSED THE PACKERS'
COMPLAINT, AND APPEAL WAS TAKEN TO THIS COURT.  FN5 

THE MANY ASSIGNMENTS OF ERROR MAY BE GROUPED UNDER THREE INQUIRIES:
(1) DO THE PACKERS HAVE AN ABSOLUTE RIGHT, AS A MATTER OF LAW, TO TAKE
THEIR DIRECT SHIPMENTS OF LIVESTOCK FROM THE UNLOADING PENS FREE FROM
YARDAGE CHARGES?  (2) IF THERE IS NO SUCH ABSOLUTE RIGHT, WAS THE
COMMISSION IN ERROR IN CONSIDERING THE HISTORY OF DEALINGS BETWEEN
PACKERS AND THE YARD COMPANY, TOGETHER WITH OTHER FACTS BEARING ON THE
REASONABLENESS OF THE CARRIERS' METHOD OF DELIVERY AT THE STOCK YARDS? 
(3) IF THE PRACTICE AS TO DELIVERY WAS CORRECTLY HELD A REASONABLE
METHOD OF TERMINATING THE CARRIERS' OBLIGATION TO FURNISH
TRANSPORTATION, DID THE COMMISSION HAVE JURISDICTION IN A PROCEEDING
AGAINST THE RAILROAD COMPANIES TO INQUIRE INTO OR PRESCRIBE THE YARDAGE
CHARGES COMPLAINED OF?

                   I 

THE PACKERS' CONTENTION THAT THEY ARE ENTITLED AS A MATTER OF
ABSOLUTE RIGHT TO DELIVERY OF THEIR LIVESTOCK FROM THE UNLOADING PENS
WITHOUT PAYMENT OF YARDAGE CHARGES, IS BASED UPON THE DECISION OF THIS
COURT IN COVINGTON STOCK-YARDS CO. V. KEITH, 139 U.S. 128, AND THE
SUBSEQUENTLY ENACTED SEC. 1(3) OF THE INTERSTATE COMMERCE ACT. 

IN THE COVINGTON CASE, DECIDED ON FACTS ANTEDATING THE INTERSTATE
COMMERCE ACT, THIS COURT SAID THAT "A CARRIER OF LIVE STOCK HAS NO MORE
RIGHT TO MAKE A SPECIAL CHARGE FOR MERELY RECEIVING OR MERELY
DELIVERING SUCH STOCK, IN AND THROUGH STOCK YARDS PROVIDED BY ITSELF,
IN ORDER THAT IT MAY PROPERLY RECEIVE AND LOAD, OR UNLOAD AND DELIVER,
SUCH STOCK, THAN A CARRIER OF PASSENGERS MAY MAKE A SPECIAL CHARGE FOR
THE USE OF ITS PASSENGER DEPOT BY PASSENGERS WHEN PROCEEDING TO OR
COMING FROM ITS TRAINS, OR THAN A CARRIER MAY CHARGE THE SHIPPER FOR
THE USE OF ITS GENERAL FREIGHT DEPOT IN MERELY DELIVERING HIS GOODS FOR
SHIPMENT, OR THE CONSIGNEE OF SUCH GOODS FOR ITS USE IN MERELY
RECEIVING THEM THERE WITHIN A REASONABLE TIME AFTER THEY ARE UNLOADED
FROM THE CARS.  IF THE CARRIER MAY NOT MAKE SUCH SPECIAL CHARGES IN
RESPECT TO STOCK YARDS WHICH ITSELF OWNS, MAINTAINS OR CONTROLS, IT
CANNOT INVEST ANOTHER CORPORATION OR COMPANY WITH AUTHORITY TO IMPOSE
BURDENS OF THAT KIND UPON SHIPPERS AND CONSIGNEES.  THE TRANSPORTATION
OF LIVE STOCK BEGINS WITH THEIR DELIVERY TO THE CARRIER TO BE LOADED
UPON ITS CARS, AND ENDS ONLY AFTER THE STOCK IS UNLOADED AND DELIVERED,
OR OFFERED TO BE DELIVERED, TO THE CONSIGNEE, IF TO BE FOUND, AT SUCH
PLACE AS ADMITS OF THEIR BEING SAFELY TAKEN INTO POSSESSION."  139 U.S.
AT 135-136. 

AFTER THE DECISION IN THIS CASE, THERE WAS ENACTED SEC. 1(3) OF THE
INTERSTATE COMMERCE ACT, PROVIDING THAT "THE TERM 'TRANSPORTATION' AS
USED IN THIS CHAPTER SHALL INCLUDE  ...  ALL INSTRUMENTALITIES AND
FACILITIES OF SHIPMENT OR CARRIAGE, IRRESPECTIVE OF OWNERSHIP OR OF ANY
CONTRACT, EXPRESS OR IMPLIED, FOR THE USE THEREOF AND ALL SERVICES IN
CONNECTION WITH THE RECEIPT, DELIVERY, ELEVATION, AND TRANSFER IN
TRANSIT,  ...  STORAGE, AND HANDLING OF PROPERTY TRANSPORTED ...  "  36
STAT. 539, 545, 49 U.S.C. SEC. 1(3)(A). 

AFTER THE ENACTMENT OF SEC. 1(3), THIS COURT DECIDED ADAMS V. MILLS,
286 U.S. 397, WHICH AROSE BEFORE THE ENACTMENT OF SEC. 15(5), SET FORTH
BELOW.  THE PROPRIETY OF AN ADDITIONAL CHARGE FOR THE UNLOADING OF
LIVESTOCK AT THE CHICAGO UNION STOCK YARDS WAS IN ISSUE, AND IT WAS
SAID:  "THAT THE YARDS ARE, IN EFFECT, TERMINALS OF THE RAILROADS IS
CLEAR.  THEY ARE IN FACT USED AS TERMINALS; AND NECESSARILY SO.
WHETHER THE UNLOADING IN THE YARDS WAS A PART OF TRANSPORTATION WAS NOT
A PURE QUESTION OF LAW TO BE DETERMINED BY MERELY READING THE TARIFFS. 
COMPARE GREAT NORTHERN RY. CO. V. MERCHANTS ELEVATOR CO., 259 U.S. 285,
294.  THE DECISION OF THE QUESTION WAS DEPENDENT UPON THE DETERMINATION
OF CERTAIN FACTS, INCLUDING THE HISTORY OF THE STOCK YARDS AND THEIR
RELATION TO THE LINE-HAUL CARRIERS; THE HISTORY OF THE UNLOADING CHARGE
AT THESE YARDS; AND THE ACTION OF THE PARTIES IN RELATION THERETO.  IF
THERE WAS EVIDENCE TO SUSTAIN THE COMMISSION'S FINDINGS ON THESE
MATTERS, ITS CONCLUSION THAT THE COLLECTION OF THE EXTRA CHARGE FROM
THE SHIPPERS WAS AN UNREASONABLE AND UNLAWFUL PRACTICE MUST BE
SUSTAINED.  ATCHISON, T. & S. F. RY. CO. V. UNITED STATES, 232 U.S.
199, 221; LOS ANGELES SWITCHING CASE, 234 U.S. 294, 310, 311."  ID. AT
409-410. 

ON FEBRUARY 28, 1920, PRIOR TO THIS DECISION AND DURING THE PENDENCY
OF THE CONTROVERSY WHICH LED TO IT, THERE WAS ENACTED SEC. 15(5) OF THE
INTERSTATE COMMERCE ACT, WHICH PROVIDED THAT: "TRANSPORTATION WHOLLY BY
RAILROAD OF ORDINARY LIVESTOCK IN CAR-LOAD LOTS DESTINED TO OR RECEIVED
AT PUBLIC STOCKYARDS SHALL INCLUDE ALL NECESSARY SERVICE OF UNLOADING
AND RELOADING EN ROUTE, DELIVERY AT PUBLIC STOCKYARDS OF INBOUND
SHIPMENTS INTO SUITABLE PENS, AND RECEIPT AND LOADING AT SUCH YARDS OF
OUTBOUND SHIPMENTS, WITHOUT EXTRA CHARGE THEREFOR TO THE SHIPPER,
CONSIGNEE OR OWNER, EXCEPT IN CASES WHERE THE UNLOADING OR RELOADING EN
ROUTE IS AT THE REQUEST OF THE SHIPPER, CONSIGNEE OR OWNER, OR TO TRY
AN INTERMEDIATE MARKET, OR TO COMPLY WITH QUARANTINE REGULATIONS.  THE
COMMISSION MAY PRESCRIBE OR APPROVE JUST AND REASONABLE RULES GOVERNING
EACH OF SUCH EXCEPTED SERVICES.  NOTHING IN THIS PARAGRAPH SHALL BE
CONSTRUED TO AFFECT THE DUTIES AND LIABILITIES OF THE CARRIERS NOW
EXISTING ON FEBRUARY 28, 1920, BY VIRTUE OF LAW RESPECTING THE
TRANSPORTATION OF OTHER THAN ORDINARY LIVESTOCK, OR THE DUTY OF
PERFORMING SERVICE AS TO SHIPMENTS OTHER THAN THOSE TO OR FROM PUBLIC
STOCKYARDS."  41 STAT. 456, 486, 49 U.S.C. SEC. 15(5). 

IN THE SUBSEQUENT CASE OF ATCHISON, T. & S.F. RY. CO. V. UNITED
STATES, 295 U.S. 193, IT WAS POINTED OUT THAT, IN APPROPRIATE
CIRCUMSTANCES, THE COMMISSION MIGHT PROPERLY FIND THAT THE CARRIERS'
DUTY TO DELIVER LIVESTOCK ENDED WITH DELIVERY INTO SUITABLE PENS AT THE
CHICAGO UNION STOCK YARDS, AND IT WAS RECOGNIZED THAT THE QUESTION OF
WHERE THE CARRIER'S OBLIGATION ENDS IS FOR THE ADMINISTRATIVE JUDGMENT
OF THE INTERSTATE COMMERCE COMMISSION. 

OUR MOST RECENT DECISION BEARING ON THE COMMISSION'S POWER TO
DETERMINE WHEN TRANSPORTATION ENDS, WITH REFERENCE TO SHIPMENTS OF
LIVESTOCK TO THE CHICAGO UNION STOCK YARDS, IS ARMOUR & CO. V. ALTON R.
CO., 312 U.S. 195, RENDERED IN THE CONTROVERSY OVER THE PROPRIETY OF
YARDAGE CHARGES MADE IN CIRCUMSTANCES PRECISELY SIMILAR TO THOSE OF THE
PRESENT CASE, BY VIRTUE OF WHICH ARMOUR & CO. INTERVENED IN THE PRESENT
LITIGATION.  THERE IT WAS HELD BY A UNANIMOUS COURT THAT ARMOUR'S
COMPLAINT IN THE FEDERAL DISTRICT COURT SHOULD BE DISMISSED, SINCE
PRIMARY JURISDICTION WAS LODGED IN THE INTERSTATE COMMERCE COMMISSION;
AND IT WAS SAID THAT THE FACTS ALLEGED IN THE COMPLAINT REVEALED THAT
"THERE ARE MANY QUESTIONS RELATING TO COMPLEX TRANSPORTATION PROBLEMS
THAT MUST BE SOLVED AS A PREREQUISITE TO A DETERMINATION OF WHETHER THE
RAILROADS, IN VIOLATION OF CONTRACTS OR GOVERNING LAWS, HAVE FAILED
PROPERLY TO DELIVER PETITIONER'S LIVESTOCK."  ID. AT 200.  BY WAY OF
ILLUSTRATION, THE OPINION DETAILED SEVERAL QUESTIONS WHICH WOULD ARISE,
AND AMONG THEM WAS THE FOLLOWING:  "AT WHAT POINT DID THE COMMON
CARRIERS' DUTY TO TRANSPORT COME TO AN END?  NEITHER THE STATUTE NOR
ANY APPLICABLE PRINCIPLE OF GOVERNING LAW CAN BE SAID TO MARK THIS
BOUNDARY, UNDER ALL CIRCUMSTANCES AND CONDITIONS AND IN ALL CASES." 
IBID.  THE DECISION AGREED WITH THE VIEW OF THE RAILROADS AND COURTS
BELOW THAT "ADJUDICATION OF THE ISSUES PRESENTED RELATES TO SUCH
COMPLEX TRANSPORTATION PROBLEMS THAT DETERMINATION OF THE LEGAL
QUESTIONS MUST NECESSARILY BE PRECEDED BY THE CONSIDERATION OF
EXTENSIVE EVIDENCE IN A SPECIALIZED FIELD, AND THAT DECISION OF SUCH
QUESTIONS IS BY STATUTE VESTED EXCLUSIVELY IN THE INTERSTATE COMMERCE
COMMISSION."  ID. AT 197.  FINALLY, IT WAS SAID THAT "IF USE OF THE
TERMINAL FACILITIES FOR EGRESS TO THE STREET AFTER UNLOADING OF
LIVESTOCK IS A PART OF TRANSPORTATION, AS PETITIONER ALLEGES, AND IF
THIS USE IS A SERVICE FOR WHICH REASONABLE COMPENSATION IS JUSTIFIED,
IT CANNOT BE DOUBTED THAT THIS CHARGE, LIKE THE UNLOADING CHARGE, IS A
PART OF THAT REASONABLE TRANSPORTATION RATE DETERMINATION OF WHICH IS
COMMITTED TO THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION. 
AND BEFORE SUCH LONG-STANDING TRANSPORTATION CUSTOMS CAN BE HELD
ILLEGAL, IT IS OF COURSE NECESSARY THAT EVIDENCE BE HEARD."  ID. AT 200
201.    THUS IT IS SEEN THAT, BEFORE THE ENACTMENT OF SEC. 15(5),
WHETHER TRANSPORTATION INCLUDED UNLOADING WAS A QUESTION OF FACT FOR
THE DETERMINATION OF THE COMMISSION.  ADAMS V. MILLS, SUPRA. SECTION
15(5) CHANGED THIS, BUT IT DID NOT ALTER THE SITUATION WITH RESPECT TO
YARDAGE SERVICES, ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 295
U.S. 193; AND WHETHER THEY ARE INCLUDED IN TRANSPORTATION IS THEREFORE
A QUESTION TO BE DECIDED BY THE COMMISSION UPON THE FACTS OF EACH
PARTICULAR CASE, AND NOT BY MECHANICAL APPLICATION OF A FIXED RULE OF
LAW AS CONTENDED BY THE APPELLANTS.  ATCHISON, T. & S.F. RY. CO. V.
UNITED STATES, 295 U.S. 193; ARMOUR & CO. V. ALTON R. CO., SUPRA.
OTHERWISE, WE ERRED IN REQUIRING "PRIMARY RESORT" TO THE COMMISSION IN
THE ARMOUR CASE WITH RESPECT TO THE QUESTION WHERE TRANSPORTATION
ENDED.  GREAT NORTHERN RY. CO. V. MERCHANTS ELEVATOR CO., 259 U.S.
285.  THE PROPRIETY OF THE YARDAGE CHARGES IN THE PRESENT CASE WAS A
QUESTION FOR DECISION BY THE COMMISSION IN THE EXERCISE OF ITS
JUDGMENT, AND NOT FOR DECISION ACCORDING TO ANY FIXED RULE OF LAW. 

                                  II 

IN DETERMINING WHETHER THE YARD COMPANY'S UNLOADING PENS WERE
SUITABLE POINTS AT WHICH TO TERMINATE THE DUTIES OF CARRIERS TO
CONSIGNEES, AND POINTS WHERE THE CONSIGNEES ENTERED INTO A RELATIONSHIP
WITH SOMEONE OTHER THAN THE CARRIERS, THE COMMISSION WAS JUSTIFIED IN
CONSIDERING, AS IT DID, ALL THAT WOULD ACCOUNT FOR THE EVOLUTION OF THE
PRACTICE COMPLAINED OF, AS WELL AS THE EFFECT OF EXISTING AND PROPOSED
PRACTICES ON THE INTEREST OF THE CARRIERS, THE PUBLIC, AND OTHER
SHIPPERS.  ADAMS V. MILLS, SUPRA, AT 409 ET SEQ.; ATCHISON, T. & S.F.
RY. CO. V. UNITED STATES, 295 U.S. AT 198 ET SEQ.; ARMOUR & CO. V.
ALTON R. CO., SUPRA, AT 201.  NEITHER THE RAILROADS NOR THE STOCK YARDS
EXIST FOR THE BENEFIT OF THE PACKERS ALONE.  THEIR PATRONAGE IS LARGE
AND IMPORTANT, BUT NEITHER IN THE REGULATION OF THE CARRIERS NOR IN THE
REGULATION OF THE STOCK YARDS ARE THEY ENTITLED TO FACILITIES OR
TREATMENT THAT WILL IGNORE THE EXISTENCE OF OTHER INTERESTS.  THE STOCK
YARDS ARE NOT ONLY A FACILITY FOR THE TRANSPORTATION OF DIRECT
SHIPMENTS FROM POINTS OF COUNTRY ORIGIN TO THE PACKERS; THEY ALSO ARE
AN IMPORTANT FACTOR IN THE ENTIRE ANIMAL INDUSTRY OF THE UNITED
STATES.  THE COMMISSION FOUND THAT THE DIRECT SHIPMENTS OF LIVESTOCK
TRANSPORTED BY RAIL TO THE PACKERS AT CHICAGO HAVE EXCEEDED 30,000
CARLOADS ANNUALLY FOR SEVERAL YEARS, BUT THAT THE TOTAL ANNUAL AVERAGE
RAIL MOVEMENT TO THE STOCK YARDS WAS 94,629 CARLOADS. 

THE BULK OF THE MOVEMENT OF STOCK IS RECEIVED IN THE YARDS DURING THE
FIRST DAYS OF THE WEEK, AND APPROXIMATELY THREE-FOURTHS OF THE DAILY
MOVEMENT IS UNLOADED BETWEEN THREE AND EIGHT IN THE MORNING.  IN SOME
INSTANCES, IMMEDIATE REMOVAL OF THE ANIMALS FROM THE UNLOADING PENS IS
NECESSARY TO PRESERVE AN EVEN FLOW OF LIVESTOCK FROM THE CARS INTO THE
YARDS.  APART FROM THE DIRECT SHIPMENTS, MUCH OF THIS STOCK MUST BE
WATERED, FED, AND WEIGHED IN THE YARDS.  IT IS REMOVED TO HOLDING PENS,
AND ONE OF THE IMPORTANT FUNCTIONS OF THE STOCK YARDS IS TO FURNISH THE
FACILITIES FOR MARKETING.  COMMISSION BROKERS OR MARKET AGENCIES
RECEIVE CONSIGNMENTS OF LIVESTOCK AND SELL THEM FOR THE ACCOUNT OF THE
PRODUCER, SOMETIMES TO THE PACKERS AND SOMETIMES TO PURCHASERS WHO
REQUIRE RE-SHIPMENT. 

SHIPMENTS MUST BE MOVED WITH GREAT RAPIDITY AND ORDER, AND IT MAY BE
THAT THIS CAN BEST BE DONE BY EMPLOYEES UNDER A SINGLE MANAGEMENT AND
DISCIPLINE.  THE CUSTOMARY HANDLING OVER MANY YEARS LED TO THE BUILDING
UP OF A PHYSICAL PLANT WHICH THE COMMISSION FINDS MAKES IT PHYSICALLY
IMPOSSIBLE TO REMOVE THIS STOCK FROM THE UNLOADING PENS EXCEPT BY USE
OF THE PROPERTY OF THE YARD COMPANY. 

THE INTERESTS OF THE PUBLIC AND OF THE COMMUNITY ARE ENTITLED TO
CONSIDERATION.  THIS TRANSPORTATION IS OF A SPECIAL KIND OF PROPERTY ON
THE HOOF, WHICH CALLS FOR SPECIAL HANDLING IN THE INTERESTS OF ECONOMY,
SAFETY, SANITATION, AND HEALTH.  THE COMMISSION HAS FOUND THAT "THE
EVIDENCE FAILS TO DISCLOSE HOW, AS A PRACTICAL MATTER, AN ANNUAL VOLUME
OF 30,000 CARLOADS OF LIVESTOCK COULD BE DISCHARGED INTO AND HANDLED
THROUGH THE PUBLIC STREETS OF CHICAGO."  FN6 

THE EXISTENCE AND SUITABILITY OF ALTERNATIVE FACILITIES FOR DELIVERY
OF LIVESTOCK WERE CONSIDERED BY THE COMMISSION.  SOME STOCK IS AND CAN
BE DELIVERED AT TEAM TRACKS AND SOME AT INDUSTRIAL SIDINGS.  THESE
FACILITIES ARE INADEQUATE FOR HANDLING THE ENTIRE VOLUME OF DIRECT
SHIPMENTS.  IT DOES NOT APPEAR, HOWEVER, THAT THE EXISTENCE OR ADEQUACY
OF ALTERNATIVE FACILITIES FOR DELIVERY AT OTHER POINTS IS PARTICULARLY
IMPORTANT IN THE CASE, BECAUSE THE SHIPMENTS INVOLVED ARE CONSIGNED TO
THE PACKERS AT THE UNION STOCK YARDS BY THEIR OWN CHOICE.  IT DOES NOT
APPEAR THAT THEY ARE DEMANDING AN INCREASE OF OTHER FACILITIES, AND THE
CASE HAS NOT BEEN CONSIDERED IN THAT LIGHT. 

THE PACKERS OBJECT TO CONSIDERATION OF THEIR OWN PART IN EVOLVING THE
SITUATION OF WHICH THEY COMPLAIN.  THE COMMISSION, HOWEVER, CONSIDERED
IT AND MADE FINDINGS AS TO THE HISTORY OF THE RELATION BETWEEN THE YARD
COMPANY AND THE PACKERS. 

THE COMMISSION FOUND THAT, SINCE THE YARD COMPANY BEGAN OPERATION IN
1865, THERE HAS BEEN A LINE OF DEMARKATION BETWEEN THE SERVICES WHICH
SHIPPERS WERE ENTITLED TO RECEIVE FOR THE TRANSPORTATION CHARGES AND
THE SERVICES RECEIVED FROM THE YARD COMPANY.  THE LINE-HAUL CARRIERS
HAVE PAID THE YARD COMPANY FOR THE UNLOADING SERVICE AND ABSORBED THE
CHARGE MADE FOR SUCH SERVICE OUT OF THEIR LINE-HAUL RATES.  FROM THE
BEGINNING, HOWEVER, ALL SHIPPERS WERE REQUIRED TO PAY TO THE YARD
COMPANY A YARDAGE CHARGE ON EVERY ANIMAL UNLOADED.  DEALINGS WITH
RESPECT TO THOSE CHARGES WERE BETWEEN THE YARD COMPANY AND THE
SHIPPERS, WITH NO INTERVENTION BY THE CARRIERS.  AFTER THESE PRACTICES
HAD BEEN IN EFFECT FOR ABOUT TWENTY-FIVE YEARS, THE YARD COMPANY
ENTERED INTO CERTAIN ARRANGEMENTS UNDER WHICH THESE PACKERS
PARTICIPATED IN THE PROFITS FROM ITS OPERATIONS.  SOME TIME BEFORE
1890, THE PACKERS THREATENED TO MOVE THEIR PLANTS FROM CHICAGO AND TO
ESTABLISH FACILITIES OF THEIR OWN FOR THE RECEIPT OF THEIR LIVESTOCK. 
THE PACKERS HAD ACQUIRED A LARGE TRACT OF LAND IN INDIANA AS A SITE FOR
THEIR PROPOSED PLANTS.  THEY HAD ALSO PURCHASED PROPERTY KNOWN AS THE
"CENTRAL STOCK YARDS" NEAR THE UNION STOCK YARDS AND HAD ERECTED
THEREON PLATFORMS, PENS, SHEDS, AND SIDINGS FOR THE PURPOSE OF
RECEIVING ALL CATTLE AND LIVESTOCK CONSIGNED TO THEM.  THEY HAD ALSO
FILED A COMPLAINT IN AN ILLINOIS COURT DEMANDING THAT THE YARD COMPANY
BE REQUIRED TO PERMIT THE LINE-HAUL CARRIERS TO USE ITS TRACKS IN
MAKING DELIVERIES TO THE PACKERS' CENTRAL STOCK YARDS. 

HAVING PUT THEMSELVES IN THIS INDEPENDENT POSITION AND THREATENED TO
REDUCE THE REVENUES OF THE YARD COMPANY, THE PACKERS NEGOTIATED A
CONTRACT WHICH, IN SUBSTANCE, INVOLVED THE ABANDONMENT BY THE PACKING
COMPANIES OF THIS THREATENED MOVE TO INDIANA AND SURRENDER OF THEIR OWN
FACILITIES FOR RECEIVING DIRECT SHIPMENTS IN RETURN FOR A PARTICIPATION
IN THE PROFITS AND CAPITAL OF THE YARD COMPANY.  IN 1892, THE PACKERS
CONVEYED TO STOCK YARD INTERESTS THE INDIANA SITE AND THE CENTRAL STOCK
YARDS, AND AGREED BY CONTRACT TO DISMISS THE SUIT FILED IN THE ILLINOIS
COURT AND TO REFRAIN FROM FILING ANY SIMILAR SUIT FOR A PERIOD OF
FIFTEEN YEARS; TO CONTINUE THEIR BUSINESS AT PACKINGTOWN, ADJACENT TO
THE UNION STOCK YARDS, FOR FIFTEEN YEARS FROM JULY 1, 1891; TO HAVE ALL
LIVESTOCK SLAUGHTERED BY THEM ON THEIR PREMISES OR WITHIN TWO HUNDRED
MILES OF THE CITY OF CHICAGO, DURING SUCH PERIOD, PASS THROUGH AND USE
THE UNION STOCK YARDS, AND TO PAY THE USUAL YARDAGE CHARGE THEREFOR;
AND THEY GUARANTEED THAT THE YARD COMPANY WOULD RECEIVE AND COLLECT
FROM ITS YARDAGE CHARGES ON PACKERS' LIVESTOCK THE AGGREGATE SUM OF
$2,000,000 WITHIN SIX YEARS, AND AGREED TO MAKE UP ANY DEFICIENCY IN
THAT AMOUNT.  THE PACKERS ALSO AGREED THAT, AS LONG AS THE YARD COMPANY
CONDUCTED ITS BUSINESS IN CHICAGO, THEY WOULD NOT INTEREST THEMSELVES
IN ANY OTHER STOCKYARDS IN CHICAGO FOR THE RECEIPT AND USE OF THEIR OWN
LIVESTOCK. 

THE PACKERS RECEIVED INCOME BONDS OF A NEW CORPORATION, THE SECURITY
OF WHICH WAS THE REVENUES OF THE STOCK YARDS, IN THE AMOUNT OF
$3,000,000.  SWIFT RECEIVED APPROXIMATELY ONE-THIRD.  THESE BONDS WERE
SUBSEQUENTLY REDEEMED BY THE ISSUING CORPORATION. 

THE RAILROAD COMPANIES WERE NOT PARTIES TO THIS AGREEMENT, AND THE
COMMISSION FOUND THAT THE PACKERS, AT THE TIME THE AGREEMENT WAS
ENTERED INTO, DID NOT CONSIDER THE ASSESSMENT OF THE YARDAGE CHARGES TO
BE A MATTER OF ANY CONCERN TO THE RAILROADS.  DURING THE EXISTENCE OF
THE AGREEMENT DESCRIBED, THE PACKERS PAID THE YARDAGE CHARGES, AND
PARTICIPATED IN THE RECEIPTS FROM SUCH CHARGES.  THIS AGREEMENT EXPIRED
IN 1907, EXCEPT FOR THE COVENANT BY THE PACKERS NOT TO ESTABLISH OR
BECOME INTERESTED IN ANY OTHER STOCKYARDS FOR THE RECEIPT OF THEIR
LIVESTOCK SO LONG AS THE YARD COMPANY MAINTAINED ITS BUSINESS IN
CHICAGO.  IT APPEARS, HOWEVER, THAT AFTER THE EXPIRATION OF THE
CONTRACT THE YARD INTERESTS WERE INFORMED THAT THE PACKERS WERE STILL
THREATENING TO MOVE THEIR PLANT FROM CHICAGO, AND IT APPEARS THAT SWIFT
EXPECTED TO RECEIVE A SHARE OF THE YARD'S EARNINGS AS LATE AS 1918, BUT
THERE IS NO PROOF THAT IT DID RECEIVE ANYTHING IN ADDITION TO THE BONDS
RECEIVED UNDER THE CONTRACT OF 1892.  J.O. ARMOUR, OF ARMOUR & COMPANY,
HOWEVER, RECEIVED SUBSTANTIAL BENEFITS AFTER 1907. 

THUS, FOR MORE THAN SEVENTY YEARS THE RESPONSIBILITY OF THE RAILROADS
IN RESPECT OF DIRECT SHIPMENTS CONSIGNED TO THE PACKERS HAS ENDED WITH
THE UNLOADING SERVICE.  THE PACKERS, FROM THAT POINT ON, HAVE
NEGOTIATED THEIR OWN ARRANGEMENT WITH THE YARD COMPANY.  MORE RECENTLY,
OF COURSE, THE STOCK YARDS HAVE PASSED UNDER PUBLIC REGULATION, AND
DISCRIMINATION OR REBATING OF THE KIND ONCE PRACTICED IS NO LONGER
POSSIBLE.  THE COMMISSION FINDS THAT IT WAS THE ATTITUDE OF THE PACKERS
THAT THEIR PATRONAGE WAS A THING OF VALUE TO THE STOCK YARDS, AND THEY
PROPOSED TO SELL THAT PATRONAGE TO THE YARD COMPANY.  THE PACKERS AND
STOCKYARDS ACT HAVING MADE PRIVATE ARRANGEMENTS OF THIS KIND UNLAWFUL,
FN7  THE PACKERS NOW CONTEND THAT THE CARRIERS MUST PROTECT THEM
AGAINST YARDAGE CHARGES ON THEIR DIRECT SHIPMENTS. 

IT WAS THE PACKERS THEMSELVES WHO SUPPRESSED THE COMPETITIVE YARDS
AND ALTERNATIVE FACILITIES FOR UNLOADING THEIR STOCK.  THE COMMISSION,
HOWEVER, HAS NOT HELD THE PACKERS TO BE ESTOPPED BY THEIR CONDUCT.  IT
HAS ONLY CONSIDERED THE PRACTICE AND USAGE OF THE PACKERS AS BEARING ON
THE SUITABILITY OF THE YARD COMPANY'S UNLOADING PENS AS A POINT OF
TERMINATION OF THE CARRIERS' RESPONSIBILITY.  THE COMMISSION HAS HELD
IT TO BE A REASONABLE PRACTICE THAT THE RAILROADS' RESPONSIBILITY FOR
TRANSPORTATION OF SUCH DIRECT SHIPMENT CONSIGNED BY THE PACKERS TO
THEMSELVES AT THE UNION STOCK YARDS ENDS WITH UNLOADING INTO THE
UNLOADING PENS, WHICH IT FOUND TO BE SUITABLE, AND THAT THE CARRIERS'
FAILURE TO NEGOTIATE OR PURCHASE FREE EGRESS FOR SUCH SHIPMENTS FROM
THE UNLOADING PENS HAS NOT RESULTED AND DOES NOT RESULT IN AN
UNREASONABLE PRACTICE.  THERE IS EVIDENCE TO SUPPORT THE DETERMINATION,
AND THE DECISION OF THE ADMINISTRATIVE BODY CHARGED WITH MAKING IT IS
THEREFORE CONCLUSIVE ON THIS COURT.  FN8

               III 

HAVING PROPERLY DECIDED THAT TRANSPORTATION ENDED WHEN THE LIVESTOCK
REACHED THE UNLOADING PENS, WAS THE COMMISSION IN ERROR IN CONCLUDING
THAT IT HAD NO JURISDICTION TO INQUIRE INTO THE REASONABLENESS OF
PRACTICES OR CHARGES OF THE YARD COMPANY BEYOND THAT POINT? 

THE APPELLANTS CONTEND THAT THE FACT THAT PROPERTY OF THE YARD
COMPANY WAS INVOLVED IN FURNISHING EGRESS TO THE APPELLANTS' SHIPMENTS
DID NOT PREVENT THE COMMISSION FROM EXERCISING SUCH JURISDICTION.  THE
YARD COMPANY, THEY SAY, WAS THE AGENT OF THE RAILROADS AND ACTED IN A
DUAL CAPACITY, AS PUBLIC STOCKYARDS SUBJECT TO THE PACKERS AND
STOCKYARDS ACT AND ALSO AS A COMMON CARRIER BY RAILROAD SUBJECT TO THE
INTERSTATE COMMERCE ACT.  IN THE LATTER CAPACITY, IT IS SAID, THE YARD
COMPANY, AS THE RAILROADS' AGENT, PROVIDES TERMINAL FACILITIES FOR
LIVESTOCK DELIVERY, WHICH IS A PART OF THE RAILROADS' OBLIGATION. 

THE STOCK YARDS ARE NAMED IN THE RAILROADS' TARIFFS AS A SPECIFIC
STATION TO WHICH THE RAILROAD RATES TO CHICAGO ARE APPLICABLE.  THE
LINE-HAUL RAILROADS PUBLISH AN ALLOWANCE TO THE YARD COMPANY OF $1.25
PER SINGLE-DECK CAR, AND $1.50 PER DOUBLE-DECK CAR, FOR UNLOADING
LIVESTOCK.  THE YARD COMPANY ALSO FILES WITH THE INTERSTATE COMMERCE
COMMISSION ITS TARIFF WHICH PUBLISHES THE SAME AMOUNTS AS CHARGES FOR
UNLOADING THE LIVESTOCK "AS CARRIER'S AGENT."  SINCE UNLOADING IS
REQUIRED BY STATUTE AS A PART OF THE TRANSPORTATION SERVICE, THE FILING
OF THE TERMS ON WHICH IT IS PERFORMED IS MANIFESTLY PROPER, ALTHOUGH
SHIPPERS ARE NOT CONCERNED WITH THE CHARGE BECAUSE THE RAILROADS ABSORB
IT IN THE LINE-HAUL RATE.  BECAUSE THE YARD COMPANY IN THIS SPECIFIC
AND LIMITED MATTER ACTS AS AGENT FOR THE RAILROADS, AND IN THE
PERFORMANCE OF THAT TRANSPORTATION SERVICE IS SUBJECT TO THE
JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION, IT DOES NOT FOLLOW
THAT THE COMMISSION MAY REGULATE, EITHER DIRECTLY OR SOMEHOW, THROUGH
THE RAILROADS, THE OTHER PRACTICES AND CHARGES OF THE YARD COMPANY. 
IF THE YARD COMPANY IS IN THE DUAL POSITION OF BEING AT ONCE THE AGENT
OF THE CARRIERS FOR THE UNLOADING OF THE STOCK AND THE PRINCIPAL IN
RENDERING ANY SUBSEQUENT SERVICES, SO IS IT UNDER DUAL REGULATORY
SCHEMES AND AUTHORITIES.  IN SO FAR AS IT IS AN AGENCY IN
TRANSPORTATION, IT IS SUBJECT TO THE INTERSTATE COMMERCE ACT AND TO THE
CONTROL OF THE INTERSTATE COMMERCE COMMISSION.  IN SO FAR AS IT
PERFORMS STOCKYARD SERVICES, IT IS SUBJECT TO THE PACKERS AND
STOCKYARDS ACT AND TO THE REGULATION OF THE SECRETARY OF AGRICULTURE. 
THE STATUTES CLEARLY DISCLOSE AN INTENTION THAT JURISDICTION OF THE
SECRETARY OF AGRICULTURE OVER STOCKYARD SERVICES SHALL NOT OVERLAP THAT
OF THE COMMISSION OVER TRANSPORTATION.  FN9  THE BOUNDARY BETWEEN THE
TWO IS THE PLACE WHERE TRANSPORTATION ENDS, AND IN THIS CASE THAT IS
ESTABLISHED TO BE THE UNLOADING PENS. 

THE UNION STOCK YARDS ARE A PUBLIC UTILITY.  THE DECISION OF THE
COMMISSION THAT THE TRANSPORTATION ENDS WITH UNLOADING LEAVES THE STOCK
IN THE HANDS OF A PUBLIC UTILITY - THE UNION STOCK YARDS - FOR DELIVERY
TO THE CONSIGNEE.  NEITHER THE INTERSTATE COMMERCE COMMISSION NOR THIS
COURT CAN ASSUME THAT THE CHARGES OR PRACTICES OF THAT UTILITY ARE
UNFAIR OR UNREASONABLE, THAT IT IS CHARGING FOR SERVICES THAT ARE NOT
PERFORMED OR FACILITIES NOT USED, OR THAT IT IS IMPOSING ON CONSIGNEES
UNNECESSARY SERVICES.  NOR CAN THE COMMISSION OR THIS COURT ASSUME
THAT, IF UNREASONABLE PRACTICES OR CHARGES ARE IMPOSED BY THIS UTILITY,
THE SECRETARY OF AGRICULTURE WOULD FAIL TO CORRECT THEM UPON AN
APPROPRIATE COMPLAINT IN A PROCEEDING IN WHICH THE YARD COMPANY IS A
PARTY AND MAY DEFEND ITS PRACTICES FOR ITSELF.  IN ANY EVENT, CONGRESS
HAS PROVIDED THAT THE SECRETARY OF AGRICULTURE IS THE FORUM IN WHICH
SUCH CHARGES AND PRACTICES MAY BE QUESTIONED AND MAY BE WEIGHED IN THE
INTEREST, NOT ONLY OF THE PACKERS, BUT OF OTHERS WHO USE THE YARDS AND
MARKETS AND WHO MIGHT BE AFFECTED COMPETITIVELY BY GRANTING THE
PACKERS' PRESENT DEMANDS.  CONGRESS HAS ESTABLISHED AN APPROPRIATE
FORUM IN WHICH ANY COMPLAINT OF THE PACKERS AGAINST THE REAL PARTY IN
INTEREST MAY BE HEARD AND ANY LAWFUL GRIEVANCES ADJUSTED, AND THE
COMMISSION WAS QUITE RIGHT IN REFUSING TO TRESPASS UPON ITS
JURISDICTION. 

IT FOLLOWS THAT THE DECREE BELOW SHOULD BE AND HEREBY IS AFFIRMED. 

FN1  OTHER PHASES OF THE GENERAL PROBLEM OF THE PRESENT CASE HAVE
BEEN CONSIDERED IN ADAMS V. MILLS, 286 U.S. 397; ATCHISON, T. & S.F.
RY. CO. V. UNITED STATES, 295 U.S. 193; UNION STOCK YARD CO. V. UNITED
STATES, 308 U.S. 213; ARMOUR & CO. V. ALTON R. CO., 312 U.S. 195. 

FN2  THE COMMISSION FOUND, FROM AN ANALYSIS OF THE BILLING OF 3,061
CARS UNLOADED AT THE UNION STOCK YARDS FROM JANUARY 1935 TO MARCH 1938,
THAT 84.4% WERE CONSIGNED TO THE STOCK YARDS, AND THE REMAINING 15.6%
WERE DELIVERED TO THE STOCK YARDS ALTHOUGH DELIVERY AT THAT POINT WAS
NOT SPECIFIED IN THE LIVESTOCK CONTRACTS.  "UNDER THE TERMS OF THE
CONTRACT, COMPLAINANT COULD HAVE REQUIRED DELIVERY OF THE 15.6 PERCENT
OF SHIPMENTS EITHER AT THE STOCKYARDS OR ON DEFENDANTS' TEAM TRACKS,
BUT COMPLAINANT NEVER REQUESTED DELIVERY OF THOSE SHIPMENTS TO ANY
POINT OTHER THAN THE UNION STOCK YARDS."  238 I.C.C. 179, 189.  THEY
WERE THEREFORE INCLUDED IN "DIRECT SHIPMENTS." 

FN3  UNDER TARIFFS FILED WITH THE INTERSTATE COMMERCE COMMISSION BY
THE YARD COMPANY, THE RAILROADS PAY TO THE YARD COMPANY $1.25 PER
SINGLE-DECK CAR AND $1.50 PER DOUBLE-DECK CAR, FOR SERVICES RENDERED AS
THEIR AGENT IN UNLOADING THE STOCK. 

FN4  ACT OF AUGUST 15, 1921, 42 STAT. 159, 7 U.S.C. SEC. 181 ET SEQ. 

FN5  SECS. 210 AND 238(4) OF THE JUDICIAL CODE AS AMENDED BY THE ACT
OF FEBRUARY 13, 1925, 43 STAT. 936, 938, 28 U.S.C. SECS. 47A, 345. 

FN6  238 I.C.C. 179, 194. 

FN7  42 STAT. 161, 7 U.S.C. SEC. 192. 

FN8  ADAMS V. MILLS, SUPRA; ATCHISON, T. & S.F. RY. CO. V. UNITED
STATES, 295 U.S. 193; ARMOUR & CO. V. ALTON R. CO., SUPRA. 

FN9  SECTION 406 OF THE PACKERS AND STOCKYARDS ACT PROVIDES IN PART:
"NOTHING IN THIS ACT SHALL AFFECT THE POWER OR JURISDICTION OF THE
INTERSTATE COMMERCE COMMISSION, NOR CONFER UPON THE SECRETARY
CONCURRENT POWER OR JURISDICTION OVER ANY MATTER WITHIN THE POWER OR
JURISDICTION OF SUCH COMMISSION."  42 STAT. 169, 7 U.S.C. SEC. 226. 

MR. JUSTICE DOUGLAS, DISSENTING: 

THE QUESTION IN THIS CASE IS NOT WHERE THE TRANSPORTATION ENDS BUT
WHAT THE PARTICULAR TRANSPORTATION SERVICE INCLUDES.  I DO NOT SUPPOSE
THAT IT WOULD BE CONTENDED THAT A RAILROAD COULD LAWFULLY EXACT FROM A
PASSENGER WHO HAD ALIGHTED ON THE STATION PLATFORM AN EXTRA CHARGE FOR
PASSING THROUGH THE STATION TO THE STREET.  THE REASON WHY IT COULD NOT
MAKE THAT EXACTION IS THAT, ALTHOUGH THE TRANSPORTATION ENDED AT THE
PLATFORM, THE TRANSPORTATION SERVICE INCLUDED FREE EGRESS FROM THE
STATION.  I THINK THAT THAT PRINCIPLE IS APPLICABLE AND CONTROLLING
HERE. 

COVINGTON STOCK-YARDS CO. V. KEITH, 139 U.S. 128, WHICH AROSE PRIOR
TO THE INTERSTATE COMMERCE ACT, APPLIED THAT PRINCIPLE TO THE DELIVERY
OF LIVESTOCK AT STOCKYARDS.  THIS COURT, AFTER STATING THAT A CARRIER
OF LIVESTOCK HAS NO RIGHT "TO MAKE A SPECIAL CHARGE FOR MERELY
RECEIVING OR MERELY DELIVERING SUCH STOCK, IN AND THROUGH STOCK YARDS
PROVIDED BY ITSELF," ADDED (PP. 135-136):  "IF THE CARRIER MAY NOT MAKE
SUCH SPECIAL CHARGES IN RESPECT TO STOCK YARDS WHICH ITSELF OWNS,
MAINTAINS OR CONTROLS, IT CANNOT INVEST ANOTHER CORPORATION OR COMPANY
WITH AUTHORITY TO IMPOSE BURDENS OF THAT KIND UPON SHIPPERS AND
CONSIGNEES.  THE TRANSPORTATION OF LIVESTOCK BEGINS WITH THEIR DELIVERY
TO THE CARRIER TO BE LOADED UPON ITS CARS, AND ENDS ONLY AFTER THE
STOCK IS UNLOADED AND DELIVERED, OR OFFERED TO BE DELIVERED, TO THE
CONSIGNEE, IF TO BE FOUND, AT SUCH PLACE AS ADMITS OF THEIR BEING
SAFELY TAKEN INTO POSSESSION." 

SO FAR AS I AM AWARE, THE COVINGTON CASE HAS NEVER BEEN OVERRULED. 
AS RECENTLY AS 1939 WE APPROVED IT.  FOR WE STATED IN UNION STOCK YARD
CO. V. UNITED STATES, 308 U.S. 213, 219, AFTER REVIEWING SECS. 1(3) AND
15(5) OF THE INTERSTATE COMMERCE ACT:  "WITHOUT THE AID OF THESE
STATUTES THE TRANSPORTATION OF LIVESTOCK BY RAIL WAS HELD TO BEGIN WITH
ITS DELIVERY TO THE CARRIER FOR LOADING ONTO ITS CARS, AND TO END ONLY
AFTER UNLOADING FOR DELIVERY OR TENDER TO THE CONSIGNEE AT THE PLACE OF
DESTINATION.  COVINGTON STOCK-YARDS CO. V. KEITH, 139 U.S. 128, 136. 
THE SAME RULE HAS BEEN REPEATEDLY APPLIED SINCE THE STATUTE WAS
ADOPTED.  ERIE R. CO. V. SHUART, 250 U.S. 465, 468; ATCHISON, T. & S.F.
RY. CO. V. UNITED STATES, 295 U.S. 193, 198, AND CASES CITED; DENVER
UNION STOCK YARD CO. V. UNITED STATES, 304 U.S. 470; 2 HUTCHISON,
CARRIERS, 3D ED. SEC. 510." 

ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 295 U.S. 193, DID NOT
ALTER THAT RULE.  AS STATED BY THE MAJORITY IN THAT CASE (295 U.S. P.
200):  "THE HYGRADE COMPANY DID NOT SEEK AND THE COMMISSION DID NOT
GRANT RELIEF UPON THE GROUND THAT THE CARRIERS FAILED TO PROVIDE EGRESS
FROM THE UNLOADING PENS IN THE PUBLIC STOCKYARDS TO THE CITY STREETS BY
MEANS OF WHICH CONSIGNEE'S ANIMALS MIGHT BE REMOVED TO ITS PLANT. 
CONSIGNEE SOUGHT FREE DELIVERY IN CARS SWITCHED INTO ITS PLANT, BUT THE
COMMISSION FOUND THE SWITCHING CHARGE NOT UNREASONABLE.  CONSIGNEE ALSO
SOUGHT FREE USE OF THE YARDS COMPANY'S PROPERTIES, INCLUDING THE
OVERHEAD RUNWAY TO TAKE ITS ANIMALS FROM HOLDING PENS AS WELL AS FROM
UNLOADING PENS TO ITS PLANT."  AND THE MAJORITY ADDED (P. 201):
"PLAINLY THERE IS AN ESSENTIAL DIFFERENCE BETWEEN THE ROUTE FROM
UNLOADING PENS TO CONSIGNEE'S PLANT AND A MERE WAY OUT TO THE PUBLIC
HIGHWAYS.  TRANSPORTATION DOES NOT INCLUDE DELIVERY WITHIN THE HYGRADE
PLANT OR THE FURNISHING OF THE PROPERTIES, OVERHEAD RUNWAY AND ALL,
THAT ARE USED FOR THAT PURPOSE."  ALTHOUGH CERTAIN GENERAL STATEMENTS
IN THE OPINION ARE NOT CONSISTENT WITH THE RULE OF THE COVINGTON CASE,
A UNANIMOUS COURT RECENTLY EXPLAINED ATCHISON, T. & S.F. RY. CO. V.
UNITED STATES AS FOLLOWS:  "THERE THE COMMISSION'S ORDER DIRECTING THE
DISCONTINUANCE OF APPELLANT'S YARDAGE CHARGE TO CONSIGNEES WAS SET
ASIDE ON THE SOLE GROUND THAT THE COMMISSION'S FINDINGS FAILED TO SHOW
THAT THE SERVICE FOR WHICH THE CHARGE WAS MADE WAS ANY PART OF THE
LOADING OR UNLOADING SERVICES, OR OTHERWISE A SERVICE WHICH THE RAIL
CARRIER WAS BOUND TO FURNISH."  UNION STOCK YARD CO. V. UNITED STATES,
SUPRA, P. 219.  THAT IS AMPLY SUPPORTED BY THE REASONS GIVEN BY THE
MAJORITY ITSELF FOR SETTING ASIDE THE COMMISSION'S ORDER IN THE
ATCHISON CASE:  "BUT THE COMMISSION, IN RESPECT OF THE SHIPMENTS
COVERED BY ITS ORDER, MADE NO DEFINITE FINDING AS TO WHAT CONSTITUTES
COMPLETE DELIVERY OR WHERE TRANSPORTATION ENDS.  ITS REPORT DOES NOT
DISCLOSE THE BASIC FACTS ON WHICH IT MADE THE CHALLENGED ORDER.  THIS
COURT WILL NOT SEARCH THE RECORD TO ASCERTAIN WHETHER, BY USE OF WHAT
THERE MAY BE FOUND, GENERAL AND AMBIGUOUS STATEMENTS IN THE REPORT
INTENDED TO SERVE AS FINDINGS MAY BY CONSTRUCTION BE GIVEN A MEANING
SUFFICIENTLY DEFINITE AND CERTAIN TO CONSTITUTE A VALID BASIS FOR THE
ORDER."  295 U.S. PP. 201-202.  AND ARMOUR & CO. V. ALTON R. CO., 312
U.S. 195, DID NOT WEAKEN THE RULE OF THE COVINGTON CASE.  WE MERELY
HELD IN THAT CASE THAT THE COMPLAINT OF A PACKER WHO SOUGHT TO BE RID
OF "YARDAGE CHARGES" RAISED CERTAIN ADMINISTRATIVE PROBLEMS
NECESSITATING PRIMARY RESORT TO THE INTERSTATE COMMERCE COMMISSION.  WE
DID NOT REACH IN THAT CASE THE MERITS OF THAT CONTROVERSY NOR THE
QUESTIONS OF LAW INVOLVED HERE.  FN1 

HENCE, I THINK WE REACH THE QUESTION OF THE APPLICATION OF THE RULE
OF THE COVINGTON CASE TO THIS SITUATION UNEMBARRASSED BY A PRIOR
HOLDING. 

I DO NOT AGREE THAT CONGRESS HAS LEFT TO THE COMMISSION THE POWER TO
ELIMINATE FREE EGRESS FROM THIS PARTICULAR TRANSPORTATION SERVICE. 
WHATEVER MAY HAVE BEEN THE SCOPE OF THE AUTHORITY OF THE COMMISSION
PRIOR TO THE TRANSPORTATION ACT OF 1920(ADAMS V. MILLS, 286 U.S. 397),
IT SHOULD BE NOTED THAT MR. JUSTICE BRANDEIS, THE AUTHOR OF ADAMS V.
MILLS, JOINED IN THE DISSENTING OPINION IN THE ATCHISON CASE, WHICH
REPUDIATED THE NOTION THAT THE TRANSPORTATION SERVICE IN THIS TYPE OF
SHIPMENT WAS COMPLETED AT THE UNLOADING PENS.  FURTHERMORE, AS STATED
IN THE DISSENTING OPINION IN THE ATCHISON CASE, IT IS CLEAR THAT
CONGRESS ITSELF PROVIDED A RULE, IN SEC. 15(5) OF THAT ACT, WHICH
PLACED ON THE COMMISSION THE DUTY AND THE AUTHORITY TO SEE TO IT THAT
TRIBUTE WAS NOT EXACTED FROM A SHIPPER BY EXACTION OF A SEPARATE CHARGE
FOR EGRESS FROM THE STATION TO THE STREET OR OTHER PUBLIC PLACE.  41
STAT. 456, 486, 49 U.S.C. SEC. 15(5).  THAT SECTION, SO FAR AS MATERIAL
HERE, PROVIDES THAT TRANSPORTATION WHOLLY BY RAILROAD OF ORDINARY
LIVESTOCK IN CARLOAD LOTS RECEIVED AT PUBLIC STOCKYARDS "SHALL INCLUDE
ALL NECESSARY SERVICE OF UNLOADING AND  ...  DELIVERY AT PUBLIC
STOCKYARDS OF INBOUND SHIPMENTS INTO SUITABLE PENS  ...  WITHOUT EXTRA
CHARGE THEREFOR TO THE SHIPPER, CONSIGNEE, OR OWNER  ...  "  TO SAY
THAT CARRIERS NEED NOT FURNISH FACILITIES FOR DELIVERY AND IMMEDIATE
REMOVAL OF LIVESTOCK BY THE CONSIGNEE, WITHOUT EXTRA CHARGE, IS TO GIVE
SEC. 15(5) AN INTERPRETATION WHICH IS NOT ONLY "INGENIOUS" (ATCHISON,
T. & S.F. RY. CO. V. UNITED STATES, SUPRA, P. 205, DISSENTING OPINION)
BUT WHICH IS ALSO QUITE OBLIVIOUS OF THE CRYING ABUSES WHICH SEC. 15(5)
WAS DESIGNED TO CORRECT.  THE WORDS "ALL NECESSARY SERVICE OF UNLOADING
AND  ... DELIVERY" OF LIVESTOCK AT PUBLIC STOCKYARDS MUST BE TAKEN TO
INCLUDE ALL SERVICES AT A TERMINAL INCIDENTAL TO OBTAINING DELIVERY OF
THE LIVESTOCK.  ANY DELIVERY "INTO SUITABLE PENS" MUST BE TAKEN "TO
MEAN PENS TO WHICH THE CONSIGNEES MAY GAIN UNIMPEDED ACCESS FOR THE
PURPOSE OF REMOVING THEIR STOCK."  ID., P. 206.  AS STATED BY
COMMISSIONER EASTMAN IN HYGRADE FOOD PRODUCTS CORP. V. ATCHISON, T. &
S.F. RY. CO., 195 I.C.C. 553, 559, PENS ARE NOT "SUITABLE," WITHIN THE
MEANING OF SEC. 15(5), WHERE THEY DO NOT "PERMIT OF REASONABLE
OPPORTUNITY TO ACCEPT DELIVERY AND REMOVE THE LIVESTOCK FROM THE
PREMISES AFTER NOTICE OF ARRIVAL."  OTHERWISE, THE PURPOSE OF SEC.
15(5) IN REMOVING "AN OLD EVIL" IS DEFEATED AND "A CROP OF NEW ONES" IS
SANCTIONED "BY GIVING STOCK YARDS AND RAIL CARRIERS OF LIVESTOCK CARTE
BLANCHE TO IMPOSE VEXATIOUS CHARGES WHICH FOR MORE THAN THIRTY YEARS
HAD BEEN CONDEMNED BY THIS COURT."  ATCHISON, T. & S.F. RY. CO. V.
UNITED STATES, SUPRA, 295 U.S. AT P. 206, DISSENTING OPINION. 

THE LEGISLATIVE HISTORY OF SEC. 15(5) WAS REVIEWED IN THE DISSENTING
OPINION IN THE ATCHISON CASE.  295 U.S. AT PP. 207-208.  THE MANDATE
CONTAINED IN SEC. 15(5) ORIGINATED WITH THE AMERICAN NATIONAL LIVE
STOCK ASSOCIATION (59 CONG. REC. 674) AND THE NATIONAL LIVE STOCK
SHIPPERS' LEAGUE.  HEARINGS, COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, H.R. 4378, 66TH CONG., 1ST SESS., VOL. I, PP. 139-141.  THE
PROPOSAL WAS NOT VAGUE.  IT WAS THAT THERE BE "ONE THROUGH RATE ON LIVE
STOCK FOR THE WHOLE SERVICES FROM POINT OF ORIGIN TO THE DESTINATION AT
PUBLIC STOCKYARDS USED AT MARKET PLACE WHICH SHALL INCLUDE UNLOADING
INTO SUITABLE PENS AND DELIVERY THEREIN AT SUCH STOCKYARDS, WHERE THE
ANIMALS MAY BE COUNTED AND CHECKED, INCLUDING SUCH FACILITIES AS ARE
NECESSARY OR IN USE FOR MAKING SUCH DELIVERY."  ID., P. 141.  IT WAS
THE ENACTMENT OF THE RULE OF THE COVINGTON CASE WHICH WAS SPECIFICALLY
ASKED.  ID., P. 874.  THE ARGUMENT WAS THAT A RAILROAD WOULD NOT "MAKE
TWO RATES TO ITS OWN PENS IF IT OWNED AND OPERATED THEM, AND NEITHER
SHOULD IT DO SO WITH RESPECT TO PENS WHICH IT USES IN THE SAME MANNER. 
THERE SHOULD BE ONE FARE, THE SAME AS A PASSENGER RATE, TO SUCH DEPOT
AS THEY USE IN A GIVEN CITY."  ID., P. 881.  THE RECORD SHOWS THAT
CONGRESS WAS ALIVE TO THE EVILS OF WHICH THE SHIPPERS COMPLAINED AND
THAT IT ENDEAVORED TO CORRECT THEM.  AS STATED BY THE HOUSE MANAGERS,
THE AIM OF THE AMENDMENT INTRODUCED IN THE SENATE AND AMPLIFIED IN
CONFERENCE WAS TO PROVIDE THAT THE "THROUGH RATES ON LIVE STOCK SHOULD
INCLUDE UNLOADING AND OTHER INCIDENTAL CHARGES."  59 CONG. REC. 3264. 
INDEED, THE SOLE PURPOSE OF THE AMENDMENT WAS TO IMPOSE ON THE
COMMISSION THE DUTY AND AUTHORITY TO ELIMINATE THE PRACTICES CONDEMNED
BY THE COVINGTON CASE.  IN VIEW OF THAT EXPLICIT HISTORY, IT COMES AS A
SURPRISE THAT THE COMMISSION CAN NOW ABDICATE AND SAY THAT A CONSIGNEE
OR OWNER WHO HAS PAID A THROUGH RATE MAY NOT HAVE FREE RECEIPT OF HIS
STOCK AT THE STATION.  TO HOLD THAT THE SEPARATE CHARGE FOR UNLOADING
LIVESTOCK INTO PENS, WHICH SEC. 15(5) OUTLAWED, MAY NOW BE EXACTED FOR
TAKING THE LIVESTOCK OUT, IS TO MAKE THE RELIEF AFFORDED BY THAT
TO THE PACKERS AND STOCKYARDS ACT OF 1921 AND THAT, IF RELIEF IS TO BE
HAD, THE SECRETARY OF AGRICULTURE MUST GIVE IT.  THE DIFFICULTY WITH
THAT VIEW IS THAT THAT ACT PROVIDES, "NOTHING IN THIS ACT SHALL AFFECT
THE POWER OR JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION, NOR
CONFER UPON THE SECRETARY CONCURRENT POWER OR JURISDICTION OVER ANY
MATTER WITHIN THE POWER OR JURISDICTION OF SUCH COMMISSION."  42 STAT.
169, 7 U.S.C. SEC. 226.  THE BOUNDARY BETWEEN THE COMMISSION AND THE
SECRETARY OF AGRICULTURE IS NOT THE PLACE WHERE THE TRANSPORTATION ENDS
BUT THE TIME WHEN THE TRANSPORTATION SERVICE IS COMPLETED.  IT IS NOT
COMPLETED UNTIL THE CONSIGNEE HAS UNIMPEDED ACCESS TO THE STATION FOR
THE PURPOSE OF REMOVING THE LIVESTOCK.  THAT VIEW IS SUPPORTED BY UNION
STOCK YARD CO. V. UNITED STATES, SUPRA, WHERE THE STOCKYARDS ARGUED
THAT THEIR LOADING AND UNLOADING SERVICES WERE SUBJECT TO REGULATION BY
THE SECRETARY OF AGRICULTURE AND NOT BY THE COMMISSION.  WE HELD THAT
LOADING AND UNLOADING SERVICES WERE "COMMON CARRIER SERVICES PLACED
UNDER THE AUTHORITY OF THE COMMISSION BY THE INTERSTATE COMMERCE ACT." 
308 U.S. P. 221.  AND WE DEFINED THE SCOPE OF THOSE SERVICES IN TERMS
OF THE RULE OF THE COVINGTON CASE.  ID., P. 219.  TO CALL THE
WITHHOLDING OF THE STOCK UNTIL AN ADDITIONAL FEE IS PAID A STOCKYARD
"SERVICE," IS INDEED INCONGRUOUS.  IT IS TO FORGET OVER HALF A CENTURY
OF HISTORY.  IT IS TO TAKE AWAY PART OF THE PROTECTION WHICH CONGRESS
AFFORDED SHIPPERS BY SEC. 15(5).  IT IS TO INTERPRET SEC. 15(5) NOT
LIBERALLY, AS A REMEDIAL PROVISION, BUT STRICTLY AGAINST THE STOCK
RAISERS FOR WHOSE ULTIMATE BENEFIT IT WAS PASSED.  FOR YEARS THE
CARRIERS AND STOCKYARDS PERSISTENTLY SOUGHT TO DIGNIFY THIS TYPE OF
TRIBUTE AND EXPLOITATION AS A "STOCK YARD SERVICE."  UNTIL THE PRESENT,
THEY WERE UNSUCCESSFUL.  THEY SHOULD FAIL AGAIN.  THE COVINGTON CASE
STATES THE CORRECT RULE.  IT IS THAT RULE WHICH CONGRESS ENACTED INTO
SEC. 15(5) FOR THE PROTECTION OF THE STOCK RAISERS, WHO ULTIMATELY PAY
THE TRIBUTE AND VEXATIOUS CHARGES WHICH THE MIDDLEMAN EXACTS.  IT IS
THAT RULE WHICH WE SHOULD ENFORCE, UNTIL CONGRESS CHANGES IT. 

THE INTERSTATE COMMERCE COMMISSION FOLLOWED THAT RULE IN HYGRADE FOOD
PRODUCTS CORP. V. ATCHISON, T. & S.F. RY CO., 195 I.C.C. 553.  THAT
CASE MET WITH REVERSAL HERE.  ATCHISON, T. & S.F. RY. CO. V. UNITED
STATES, SUPRA.  AND THE OPINION OF THE COURT CONTAINED A DICTUM THAT
"USAGE AND PHYSICAL CONDITIONS COMBINED DEFINITELY TO END
TRANSPORTATION, AT LEAST IN RESPECT OF THESE SHIPMENTS, WITH UNLOADING
INTO SUITABLE PENS AS IS NOW REQUIRED BY SEC. 15(5)."  295 U.S. P.
201.  IT IS THAT DICTUM WHICH HAS HAUNTED THIS LITIGATION AND WHICH
LARGELY SHAPED THE RULING OF THE COMMISSION IN THE INSTANT CASE.  FOR
THE COMMISSION PROCEEDED FROM THE PREMISE THAT THERE WAS "NO DIFFERENCE
IN PRINCIPLE" BETWEEN THE ATCHISON CASE AND THIS ONE, AND THAT THIS
COURT HAD STATED IN THE EARLIER CASE "THAT THE OBLIGATION OF THE LINE
HAUL CARRIERS CEASED WHEN THE ANIMALS WERE PLACED IN THE UNLOADING
PENS."  238 I.C.C. 179, 189-190, 196.  BUT THE COMMISSION WAS UNDER NO
SUCH COMPULSION.  COMMISSIONER ALLDREDGE WAS QUITE RIGHT WHEN HE
POINTED OUT IN HIS DISSENTING OPINION THAT THE COMMISSION MISCONSTRUED
THE OPINION OF THIS COURT IN THE ATCHISON CASE.  238 I.C.C. PP. 197
198.  HENCE THE CONCLUSION OF THE COMMISSION, REACHED IN LARGE MEASURE
UNDER THE COMPULSION OF THAT ERRONEOUS ASSUMPTION, SHOULD NOT BE GIVEN
THE WEIGHT NORMALLY DUE FINDINGS AND CONCLUSIONS OF SUCH AN EXPERT
BODY. 

WE SHOULD REAFFIRM ONCE MORE THE RULE OF THE COVINGTON CASE AND
REJECT THE DICTUM IN THE ATCHISON CASE.  WE SHOULD HOLD THAT SEC. 15(5)
IS REMEDIAL AND SHOULD BE LIBERALLY CONSTRUED AND, AS THE COMMISSION
ITSELF HELD IN THE ATCHISON CASE, THAT THIS PARTICULAR TRANSPORTATION
SERVICE INCLUDES THE TIME-HONORED OPPORTUNITY OF THE CONSIGNEE OR OWNER
TO GO TO THE STATION AND TAKE AWAY HIS LIVESTOCK WITHOUT PAYMENT OF AN
ADDITIONAL TOLL. 

FN1  IT WILL NOT DO TO SAY THAT, IF THE RULE OF THE COVINGTON CASE
APPLIED, WE ERRED IN REQUIRING PRIMARY RESORT TO THE COMMISSION IN THE
ARMOUR CASE.  THERE WERE SEVERAL QUESTIONS RELATING TO COMPLEX
TRANSPORTATIONS INVOLVED IN THAT CASE WHICH REQUIRED PRIMARY
DETERMINATION BY THE COMMISSION.  THEY INCLUDED POSSIBLE READJUSTMENTS
OF RATE SCHEDULES, POSSIBLE REFUNDS TO SHIPPERS, AND DEFINITION OF THE
BOUNDARIES OF THE STATION NAMED IN THE TARIFF.  THE STATEMENT IN THE
ARMOUR CASE THAT THE STATUTE DID NOT MARK THE POINT WHERE THE
TRANSPORTATION SERVICE WAS COMPLETED "UNDER ALL CIRCUMSTANCES AND
CONDITIONS AND IN ALL CASES" (312 U.S. P. 200) IS BORNE OUT BY THE
ATCHISON CASE, WHERE THE CONSIGNEE, AS WE HAVE NOTED, SOUGHT FREE
DELIVERY IN CARS SWITCHED INTO ITS PLANT AND THE USE OF AN OVERHEAD
RUNWAY FROM HOLDING PENS TO ITS PLANT.  CLEARLY, A DETERMINATION OF THE
PRECISE FACTS CONCERNING THE CHARACTERISTICS AND USE OF A PARTICULAR
STATION WAS NECESSARY BEFORE A CORRECT APPLICATION OF THE APPLICABLE
RULE OF LAW COULD BE MADE. 

THE CHIEF JUSTICE AND MR. JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :












PRUDENCE CORP. V. GEIST, 316 U.S. 89 


NO. 757.  ARGUED APRIL 1, 1942.  - DECIDED APRIL 27, 1942.  - 122 F.2D
503, REVERSED. 


1.  UNDER SECS. 77B (F)(1) AND 65(A) OF THE BANKRUPTCY ACT, AND THE
EQUITABLE PRINCIPLES GOVERNING BANKRUPTCY PROCEEDINGS, AN INSOLVENT
DEFAULTING GUARANTOR OF CERTIFICATES OF PARTICIPATION IN A MORTGAGE,
WHO IS ALSO THE OWNER OF A PART OF THE MORTGAGE INDEBTEDNESS, IS
ENTITLED TO SHARE PRO RATA IN THE DISTRIBUTION OF THE PROCEEDS OF THE
MORTGAGE, IN A SEC. 77B REORGANIZATION.  P. 93. 

2.  A RULE ASSERTED TO HAVE BEEN ESTABLISHED BY DECISIONS OF THE NEW
YORK COURT OF APPEALS, TO THE EFFECT THAT ONE WHO GUARANTEES PAYMENT OF
CERTIFICATES REPRESENTING UNDIVIDED INTERESTS IN A MORTGAGE, WHICH ARE
SOLD TO INVESTORS, THEREBY IMPLIEDLY AGREES THAT ANY CLAIM OF HIS OWN
IN THE MORTGAGE INDEBTEDNESS SHALL BE SUBORDINATED TO THOSE OF OTHER
CERTIFICATE HOLDERS, IS TO BE TAKEN AS A RULE OF STATE LAW GOVERNING
RELATIVE RIGHTS OF CLAIMANTS IN A STATE LIQUIDATION, BUT IS
INAPPLICABLE IN FEDERAL BANKRUPTCY PROCEEDINGS.  P. 93. 

NOTHING DECIDED IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, REQUIRES A
COURT OF BANKRUPTCY TO APPLY SUCH A LOCAL RULE GOVERNING THE
LIQUIDATION OF INSOLVENT ESTATES.  THE BANKRUTCY ACT PRESCRIBES ITS OWN
CRITERIA FOR DISTRIBUTION TO CREDITORS.  P. 95. 

PRUDENCE REALIZATION CORP. V. GEIST, TRUSTEE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 314 U.S. 606, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
DISTRICT COURT DIRECTING THAT THE PETITIONER SHOULD NOT SHARE IN THE
PROCEEDS OF THE MORTGAGE UNTIL OTHER OWNERS OF UNDIVIDED INTERESTS IN
THE MORTGAGE INDEBTEDNESS WERE PAID IN FULL. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR OUR DECISION IS WHETHER AN INSOLVENT DEFAULTING
GUARANTOR OF CERTIFICATES OF PARTICIPATION IN A MORTGAGE, WHO IS ALSO
THE OWNER OF A PART OF THE MORTGAGE INDEBTEDNESS, IS ENTITLED TO SHARE
PRO RATA IN A DISTRIBUTION OF THE PROCEEDS OF THE MORTGAGE IN A SEC.
77B BANKRUPTCY REORGANIZATION. 

PRUDENCE COMPANY, PETITIONER'S PREDECESSOR, AND A WHOLLY OWNED
SUBSIDIARY OF NEW YORK INVESTORS, INC., LOANED TO ZO-GALE REALTY
COMPANY $480,000 ON ITS BOND SECURED BY A FIRST MORTGAGE ON REAL
ESTATE.  IN 1925, PRUDENCE COMPANY PUT INTO EXECUTION A PLAN FOR
SELLING PARTICIPATION CERTIFICATES IN THE MORTGAGE.  IT ASSIGNED THE
BOND AND MORTGAGE WITHOUT CONSIDERATION TO PRUDENCE BONDS CORPORATION,
ALSO A WHOLLY OWNED SUBSIDIARY OF NEW YORK INVESTORS, INC. PRUDENCE
BONDS IN TURN LODGED THE BOND AND MORTGAGE WITH A TRUST COMPANY
DEPOSITARY.  PRUDENCE COMPANY THEN EXECUTED A GUARANTY OF PAYMENT OF
THE BOND AND MORTGAGE, WHEREUPON PRUDENCE BONDS ISSUED CERTIFICATES OF
PARTICIPATION AUTHENTICATED BY THE TRUST COMPANY, AND TOTALING
$382,800.  IT DELIVERED THEM, WITHOUT PAYMENT OF ANY CONSIDERATION, TO
THE PRUDENCE COMPANY WHICH THEN SOLD THEM TO INVESTORS.  THE GUARANTY
OF PRUDENCE COMPANY, WHICH WAS REFERRED TO IN THE PARTICIPATION
CERTIFICATES, WAS OF PAYMENT OF THE BOND INTEREST WHEN DUE AND OF THE
PRINCIPAL WHEN DUE OR WITHIN EIGHTEEN MONTHS THEREAFTER. 

EACH CERTIFICATE DECLARES THAT THE PURCHASER IS ENTITLED TO AN
UNDIVIDED SHARE IN THE MORTGAGE OF A SPECIFIED AMOUNT EQUAL TO THE SUM
PAID FOR IT BY THE ORIGINAL PURCHASER.  EACH PROVIDES THAT THE SHARE IN
THE BOND AND MORTGAGE REPRESENTED BY IT IS NOT SUBORDINATE TO ANY OTHER
SHARES OR SUBJECT TO ANY PRIOR INTEREST, AND EACH RESERVES TO PRUDENCE
BONDS THE RIGHT "TO BE THE HOLDER OR PLEDGEE OF SIMILAR SHARES" IN THE
BOND AND MORTGAGE.  THE MORTGAGE INDEBTEDNESS WAS LATER REDUCED TO
$390,000, LEAVING AN UNDIVIDED SHARE OF $7,200 OF WHICH PRUDENCE
COMPANY WAS THE EQUITABLE OWNER, FOR WHICH NO PARTICIPATION CERTIFICATE
HAD BEEN ISSUED. 

IN 1938, AN ORDER OF THE BANKRUPTCY COURT, IN WHICH PRUDENCE COMPANY
AND PRUDENCE BONDS WERE THEN BEING REORGANIZED, DIRECTED A TRANSFER TO
PRUDENCE COMPANY OF THE $7,200 INTEREST, AS PART OF A SETTLEMENT AND
ADJUSTMENT OF MUTUAL CLAIMS BETWEEN THE TWO COMPANIES, AND PRUDENCE
COMPANY HAS CONTINUED TO BE THE OWNER OF THIS SHARE OF THE MORTGAGE
INDEBTEDNESS.  IT HAS ALSO ACQUIRED, BY PURCHASE FROM CERTIFICATE
HOLDERS, $816.67 IN CERTIFICATES OF PARTICIPATION IN THE MORTGAGE. 

ON FORECLOSURE OF A SECOND MORTGAGE ON THE ZO-GALE PROPERTY,
AMALGAMATED PROPERTIES, INC., A WHOLLY OWNED SUBSIDIARY OF PRUDENCE
COMPANY, ACQUIRED TITLE TO THE PROPERTY FROM THE MORTGAGOR, AND LATER
WENT INTO A BANKRUPTCY REORGANIZATION.  UPON APPROVAL BY THE COURT OF A
PLAN OF REORGANIZATION OF THE ZO-GALE CERTIFICATE ISSUE, THE TITLE TO
THE MORTGAGED PROPERTY WAS TRANSFERRED TO RESPONDENT GEIST, AS TRUSTEE
FOR THE BENEFIT OF THE CERTIFICATE HOLDERS.  IN CONFIRMING THE PLAN FOR
REORGANIZATION OF AMALGAMATED, THE COURT RESERVED FOR FUTURE DECISION
THE QUESTION WHETHER THE PRUDENCE COMPANY WAS ENTITLED TO PAYMENT OF
ITS TWO CLAIMS IN THE MORTGAGE PRO RATA WITH THE OTHER CERTIFICATE
HOLDERS. 

AS PROVIDED BY THE REORGANIZATION PLAN OF PRUDENCE COMPANY, PETITIONER
PRUDENCE REALIZATION CORPORATION WAS ORGANIZED TO TAKE OVER THE ASSETS
FROM THE TRUSTEES OF PRUDENCE COMPANY AND TO LIQUIDATE THEM FOR THE
BENEFIT OF CREDITORS UNDER THE DIRECTION OF THE BANKRUPTCY COURT. 
PETITIONER HAS THUS ACQUIRED CERTIFICATES ISSUED IN THE AMALGAMATED
REORGANIZATION PROCEEDING, REPRESENTING THE INTEREST OF PRUDENCE
COMPANY IN THE ZO-GALE BOND AND MORTGAGE.  THE CLAIMS AGAINST PRUDENCE
COMPANY RECOGNIZED BY ITS PLAN OF REORGANIZATION AMOUNTED TO
$133,723,000, INCLUDING ITS GUARANTIES OF MORTGAGES AMOUNTING TO
$12,523,000; GUARANTIES OF BONDS ISSUED BY PRUDENCE BONDS FOR
$58,833,000; AND GUARANTIES OF MORTGAGE PARTICIPATION CERTIFICATES
ISSUED BY PRUDENCE BONDS (INCLUDING THE ZO-GALE MORTGAGE CERTIFICATES)
FOR $50,858,000. 

THE PRESENT PROCEEDING WAS BEGUN BY RESPONDENT'S PETITION IN THE
CONSOLIDATED REORGANIZATION OF PRUDENCE COMPANY AND AMALGAMATED
PROPERTIES IN THE EASTERN DISTRICT OF NEW YORK FOR AN ORDER DIRECTING
THAT PETITIONER WAS NOT ENTITLED TO ANY DISTRIBUTION ON ACCOUNT OF THE
PRUDENCE COMPANY'S INTEREST IN THE ZO-GALE MORTGAGE UNTIL THE OTHER
CERTIFICATE HOLDERS WERE PAID IN FULL.  THE DISTRICT COURT GRANTED THE
ORDER, WHICH THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMED.  122 F.2D 503.  BOTH COURTS APPLIED THE RULE OF THE NEW YORK
COURT OF APPEALS, SEE MATTER OF TITLE & MORTGAGE GUARANTY CO., 275 N.Y.
347, 9 N.E.2D 957; PINK V. THOMAS, 282 N.Y. 10, 24 N.E.2D 724; MATTER
OF PEOPLE (UNION GUARANTEE & MORTGAGE CO.), 285 N.Y. 337, 34 N.E.2D
345, THAT A GUARANTOR OF MORTGAGE CERTIFICATES, WHO ALSO HAS AN
INTEREST IN THE MORTGAGE, CANNOT SHARE IN THE PROCEEDS OF ITS
COLLECTION UNTIL THE CERTIFICATE HOLDERS ARE PAID, UNLESS THERE IS A
CLEAR RESERVATION IN THE CERTIFICATE OF THE RIGHT OF THE GUARANTOR TO
SHARE ON A PARITY WITH OTHER CERTIFICATE HOLDERS.  THE CIRCUIT COURT OF
APPEALS BY A DIVIDED COURT HELD THAT IT WAS BOUND TO APPLY THE RULE
ANNOUNCED IN THE NEW YORK CASES CITED, WHICH IT DEEMED TO BE A RULE OF
CONSTRUCTION OF THE GUARANTY OF THE CERTIFICATES.  WE GRANTED
CERTIORARI, 314 U.S. 606, BECAUSE OF THE IMPORTANCE IN BANKRUPTCY
ADMINISTRATION OF THE QUESTIONS RAISED. 

THE COURT BELOW RECOGNIZED THE IMPLICATION OF THE REQUIREMENT THAT A
PLAN OF REORGANIZATION UNDER FORMER SEC. 77B (F)(1) OF THE BANKRUPTCY
ACT (SEE 11 U.S.C. SEC. 621(2)) BE ONE WHICH "IS FAIR AND EQUITABLE AND
DOES NOT DISCRIMINATE UNFAIRLY IN THE CASE OF ANY CLASS OF CREDITORS,"
SEE SOUTHERN PACIFIC CO. V. BOGERT, 250 U.S. 483, 492; CASE V. LOS
ANGELES LUMBER CO., 308 U.S. 106, AND THAT SEC. 65(A) REQUIRES THAT IN
LIQUIDATIONS A DISTRIBUTION OF "DIVIDENDS OF AN EQUAL PER CENTUM" SHALL
BE MADE "ON ALL ALLOWED CLAIMS, EXCEPT SUCH AS HAVE PRIORITY OR ARE
SECURED," SEE GLOBE BANK & TRUST CO. V. MARTIN, 236 U.S. 288, 305;
MOORE V. BAY, 284 U.S. 4.  IT RECOGNIZED ALSO THAT THE EQUITY POWERS OF
THE BANKRUPTCY COURT MAY BE EXERTED TO SUBORDINATE THE CLAIMS OF ONE
CLAIMANT TO THOSE OF OTHERS OF THE SAME CLASS WHERE HIS CONDUCT IN
ACQUIRING OR ASSERTING HIS CLAIM IS CONTRARY TO ESTABLISHED EQUITABLE
PRINCIPLES.  SEE TAYLOR V. STANDARD GAS CO., 306 U.S. 307; PEPPER V.
LITTON, 308 U.S. 295; IN RE BOWMAN HARDWARE & ELECTRIC CO., 67 F.2D
792. 

BUT THE COURT FOUND IT UNNECESSARY TO CHOOSE BETWEEN SUCH COMPETING
CONSIDERATIONS, AND RESTED ITS DECISION ON THE GROUND THAT PRUDENCE
COMPANY'S GUARANTY OF THE CERTIFICATES WAS UNDER STATE LAW TO BE
INTERPRETED AS IMPLIEDLY AGREEING THAT ANY CLAIM OF ITS OWN TO THE
MORTGAGE INDEBTEDNESS WAS TO BE SUBORDINATED TO THOSE OF OTHER
CERTIFICATE HOLDERS.  AFTER REFERRING TO CASES IN WHICH THE NEW YORK
COURT OF APPEALS HAD DIRECTED SUCH A SUBORDINATION, THE COURT SAID (122
F.2D 505): 

"AN IMPORTANT ISSUE HEREIN IS WHETHER THIS IS PRIMARILY A RULE OF
CONSTRUCTION OF THE GUARANTY IN THE CERTIFICATES OR IS A RULE OF
ADMINISTRATION OF INSOLVENT ESTATES WHICH VIOLATES BANKRUPTCY
PRINCIPLES OF EQUAL DISTRIBUTION OF A BANKRUPT ESTATE AMONG CREDITORS. 
IF IT IS A RULE OF CONSTRUCTION WE WOULD FOLLOW IT  ...  ," CITING ERIE
R. CO. V. TOMPKINS, 304 U.S. 64.  "AND IF WE THUS FOUND THE GUARANTEE
TO AMOUNT TO AN ACTUAL AGREEMENT BETWEEN TWO CREDITORS THAT THE CLAIM
OF ONE AGAINST THE DEBTOR SHOULD BE SUBORDINATED TO THAT OF THE OTHER,
WE SHOULD GIVE THAT EFFECT TO IT  ...  " 

THE ONLY EVIDENCE OF THE ACTUAL INTENT OF THE PARTIES TO WHICH THE
COURT REFERRED WAS THE FACT THAT PRUDENCE COMPANY, UNLIKE PRUDENCE
BONDS, HAD NOT RESERVED THE RIGHT IN THE CERTIFICATES TO BE THE HOLDER
OF "SIMILAR SHARES" IN THE BOND AND MORTGAGE.  BUT THERE IS NO
CONTENTION THAT IN THE ABSENCE OF SUCH A PROVISION IN THE CERTIFICATES,
PRUDENCE COMPANY WAS NOT FREE TO ACQUIRE CERTIFICATES OR HOLD AN
INTEREST IN THE GUARANTEED MORTGAGE IN ITS OWN RIGHT.  CONSEQUENTLY,
ITS OWNERSHIP OF THE $816.67 IN CERTIFICATES AND $7,200 OF THE
UNCERTIFICATED INDEBTEDNESS EVIDENCES NO ACTUAL INTENTION TO
SUBORDINATE THOSE INTERESTS IN A LIQUIDATION.  AND NEITHER THE TERMS OF
THE GUARANTY NOR OF THE CERTIFICATES GIVE ANY INDICATION OF SUCH AN
INTENT OF THE PARTIES. 

THE COURT ARRIVED AT ITS CONCLUSION THAT THE PRUDENCE COMPANY HAD
AGREED TO SUBORDINATE ITS CLAIMS, NOT FROM AN EXAMINATION OF THE
RELEVANT DOCUMENTS READ IN THE LIGHT OF THE SURROUNDING CIRCUMSTANCES,
EXCEPT AS WE HAVE NOTED, BUT FROM ITS READING AND APPLICATION OF THE
OPINIONS OF THE NEW YORK COURT OF APPEALS.  THESE RECOGNIZE THAT THE
GUARANTOR OF A MORTGAGE, WHO IS ALSO A PART OWNER OF IT, IS FREE TO
STIPULATE THAT HE MAY SHARE IN A LIQUIDATION ON AN EQUAL FOOTING WITH
OTHER OWNERS OF THE MORTGAGE DESPITE HIS DEFAULT ON HIS GUARANTY, AND
THAT EFFECT WILL BE GIVEN TO SUCH A STIPULATION.  SEE MATTER OF TITLE &
MORTGAGE GUARANTY CO., SUPRA, 352; PINK V. THOMAS, SUPRA, 12; MATTER OF
PEOPLE (UNION GUARANTEE & MORTGAGE CO.), SUPRA, 343.  ON THE OTHER
HAND, SOME OF THEM HAVE FOUND VISIBLE EVIDENCE, IN THE TERMS OF THE
CERTIFICATES, OF AN ACTUAL INTENTION OF THE PARTIES TO SUBORDINATE THE
GUARANTOR'S INTEREST.  TO THAT EXTENT THEY ARE INAPPLICABLE TO THE
CERTIFICATES IN THIS CASE, WHICH AFFORD NO SUCH EVIDENCE.  SEE MATTER
OF TITLE & MORTGAGE GUARANTY CO., SUPRA, 355; MATTER OF PEOPLE (UNION
GUARANTEE & MORTGAGE CO.), SUPRA, 345. 

BUT SO FAR AS THE NEW YORK CASES, WITHOUT EVIDENCE OF THE ACTUAL
INTENT OF THE PARTIES, SUBORDINATE THE GUARANTOR ON GROUNDS OF
"PRESUMED INTENTION," OR "THE EXISTENCE OF SPECIAL EQUITIES," OR THE
"NATURAL EQUITIES" INVOLVED, TITLE GUARANTEE & TRUST CO. V. MORTGAGE
COMMISSION, 273 N.Y. 415, 426, 7 N.E.2D 841; MATTER OF TITLE & MORTGAGE
GUARANTY CO., SUPRA, 355; PINK V. THOMAS, SUPRA, 12; MATTER OF PEOPLE
(UNION GUARANTEE & MORTGAGE CO.), SUPRA, 343; MATTER OF LAWYERS' TITLE
& GUARANTY CO., 287 N.Y. 264, 272, 39 N.E.2D 233, WE ARE UNABLE TO SAY
THAT THE RULE LAID DOWN IS OTHER THAN ONE OF STATE LAW GOVERNING THE
RELATIVE RIGHTS OF CLAIMANTS IN A STATE LIQUIDATION.  NOTHING DECIDED
IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, REQUIRES A COURT OF BANKRUPTCY
TO APPLY SUCH A LOCAL RULE GOVERNING THE LIQUIDATION OF INSOLVENT
ESTATES.  THE BANKRUPTCY ACT PRESCRIBES ITS OWN CRITERIA FOR
DISTRIBUTION TO CREDITORS.  IN THE INTERPRETATION AND APPLICATION OF
FEDERAL STATUTES, FEDERAL NOT LOCAL LAW APPLIES.  SEE AWOTIN V. ATLAS
EXCHANGE BANK, 295 U.S. 209; CHESAPEAKE & OHIO RY. V. MARTIN, 283 U.S.
209, 212-213; BOARD OF COMM'RS V. UNITED STATES, 308 U.S. 343, 349-350;
DEITRICK V. GREANEY, 309 U.S. 190, 200; ROYAL INDEMNITY CO. V. UNITED
STATES, 313 U.S. 289, 296.  THE COURT OF BANKRUPTCY IS A COURT OF
EQUITY TO WHICH THE JUDICIAL ADMINISTRATION OF THE BANKRUPT'S ESTATE IS
COMMITTED, SECURITIES & EXCHANGE COMMISSION V. U.S. REALTY CO., 310
U.S. 434, 455-457, AND IT IS FOR THAT COURT - NOT WITHOUT APPROPRIATE
REGARD FOR RIGHTS ACQUIRED UNDER RULES OF STATE LAW - TO DEFINE AND
APPLY FEDERAL LAW IN DETERMINING THE EXTENT TO WHICH THE INEQUITABLE
CONDUCT OF A CLAIMANT IN ACQUIRING OR ASSERTING HIS CLAIM IN BANKRUPTCY
REQUIRES ITS SUBORDINATION TO OTHER CLAIMS WHICH, IN OTHER RESPECTS,
ARE OF THE SAME CLASS.  CF TAYLOR V. STANDARD GAS CO., SUPRA; PEPPER V.
LITTON, SUPRA. 

BUT THE QUESTION REMAINS WHETHER THERE IS ANY EQUITY ARISING FROM THE
PRUDENCE COMPANY'S FAILURE TO PERFORM ITS CONTRACT OF GUARANTY WHICH A
BANKRUPTCY COURT SHOULD RECOGNIZE AS REQUIRING THE SUBORDINATION OF THE
COMPANY'S INTEREST IN THE MORTGAGE TO THE CLAIMS OF THE OTHER MORTGAGE
CREDITORS.  IT IS A FAMILIAR EQUITY RULE, APPLIED BY THE FEDERAL COURTS
IN LIQUIDATION PROCEEDINGS UNDER FEDERAL STATUTES, THAT A SOLVENT
GUARANTOR OR SURETY OF AN INSOLVENT'S OBLIGATION WILL NOT BE PERMITTED,
EITHER BY TAKING INDEMNITY FROM HIS PRINCIPAL OR BY VIRTUE OF HIS RIGHT
OF SUBROGATION, TO COMPETE WITH OTHER CREDITORS PAYMENT OF WHOSE CLAIMS
HE HAS UNDERTAKEN TO ASSURE, UNTIL THEY ARE PAID IN FULL.  IF THE
SURETY WERE ALLOWED TO PROVE HIS OWN CLAIM BEFORE THE CREDITOR IS PAID,
HE WOULD TO THAT EXTENT DIMINISH THE CREDITOR'S DIVIDENDS UPON HIS
CLAIM, AND THUS DEFEAT THE PURPOSE FOR WHICH HE HAD GIVEN THE
INDEMNITY.  UNITED STATES V. NATIONAL SURETY CO., 254 U.S. 73, 76;
JENKINS V. NATIONAL SURETY CO., 277 U.S. 258; AMERICAN SURETY CO. V.
ELECTRIC CO., 296 U.S. 133; PEOPLES V. PEOPLES BROS., 254 F. 489; U.S.
FIDELITY & GUARANTY CO. V. UNION BANK & TRUST CO., 228 F. 448, 455. 
FOR LIKE REASONS EQUITY REQUIRES THE SURETY WHO HOLDS SECURITY OF THE
INSOLVENT PRINCIPAL TO GIVE THE BENEFIT OF IT TO THE CREDITOR FOR WHOM
HE IS SURETY UNTIL THE DEBT IS PAID.  KELLER V. ASHFORD, 133 U.S. 610;
SEE CHAMBERLAIN V. ST. PAUL & SIOUX CITY R. CO., 92 U.S. 299, 306;
HAMPTON V. PHIPPS, 108 U.S. 260, 263; 4 POMEROY, EQUITY JURISPRUDENCE
(5TH ED.)  SEC.  1419.    BUT WE THINK THE EQUITABLE BASIS FOR
REQUIRING THE SURETY OR GUARANTOR TO POSTPONE THE ASSERTION OF RIGHTS
WHICH HE DERIVES FROM OR ARE INCIDENTAL TO HIS SURETYSHIP, TO THE
RIGHTS OF CREDITORS WHOM HE HAS UNDERTAKEN TO SECURE, IS WANTING HERE. 
THE RIGHTS ASSERTED BY PRUDENCE COMPANY IN THE MORTGAGE ARE NOT THOSE
OF A SUBROGEE; THEY WERE ACQUIRED INDEPENDENTLY OF ITS GUARANTY.  THEY
ARE NOT DERIVED FROM OR AN INCIDENT TO IT.  THEIR ASSERTION IS IN NO
WAY INCONSISTENT WITH ANY DUTY OR OBLIGATION IT ASSUMED BY ITS CONTRACT
OF GUARANTY.  BY THAT CONTRACT THE GUARANTOR PLEDGED ONLY ITS PERSONAL
OBLIGATION FOR THE PAYMENT OF THE CERTIFICATES.  IT GAVE TO THE
CERTIFICATE HOLDERS NO LIEN UPON, OR OTHER PRIORITY RIGHT IN, ITS
INTEREST IN THE MORTGAGE MORE THAN TO ITS OTHER ASSETS. 

POSTPONEMENT OF ITS RIGHTS IN THE MORTGAGE TO THOSE OF THE OTHER
CERTIFICATE HOLDERS IS NOT JUSTIFIABLE AS OPERATING TO AVOID CIRCUITY
OF ACTION.  THE PRUDENCE COMPANY IS NOT SOLVENT.  ITS PROPERTY IS BEING
LIQUIDATED IN BANKRUPTCY, WHERE ALL THE CLAIMANTS ON ITS PRESENT AND
OTHER GUARANTY OBLIGATIONS ARE ENTITLED TO SHARE EQUALLY IN ITS
UNPLEDGED ASSETS.  DENIAL OF THE RIGHT TO PROVE ITS CLAIM, WHICH IS AN
ASSET IN WHICH ALL OF PRUDENCE'S CREDITORS ARE OTHERWISE ENTITLED TO
SHARE, WILL SERVE ONLY TO DIVERT THIS ASSET FROM ALL CREDITORS TO ONE
CLASS OF CREDITORS, THE ZO-GALE CERTIFICATE HOLDERS, AND THUS GIVE TO
THEM THE EXCLUSIVE BENEFIT OF A SECURITY FOR WHICH THEY HAVE NOT
BARGAINED.  ALLOWANCE OF THE PRUDENCE COMPANY'S CLAIM DOES NOT INVOLVE
ANY BREACH OF ITS DUTY AS GUARANTOR.  NOR DOES IT DEPRIVE CERTIFICATE
HOLDERS OF THEIR RIGHT TO SHARE IN THIS ASSET PARI PASSU WITH THE OTHER
CREDITORS, OR OF ANY RIGHT, LEGAL OR EQUITABLE, TO WHICH THEY ARE
ENTITLED BY VIRTUE OF THEIR POSITION AS GUARANTEED CREDITORS.  SEE
HAMPTON V. PHIPPS, SUPRA; PRAIRIE STATE BANK V. UNITED STATES, 164 U.S.
227; HENNINGSEN V. U.S. FIDELITY & GUARANTY CO., 208 U.S. 404. 

SINCE THE NEW YORK RULE, IN THE ABSENCE OF AN ACTUAL AGREEMENT TO
SUBORDINATE THE GUARANTOR, IS MERELY A GENERAL RULE OF LAW GOVERNING
INSOLVENCY PROCEEDINGS, IT IS NOT CONTROLLING IN BANKRUPTCY.  AND SINCE
IN THE CIRCUMSTANCES OF THE PRESENT CASE WE FIND NO AGREEMENT AND NO
EQUITABLE BASIS FOR DEPRIVING THE PRUDENCE COMPANY AND ITS CREDITORS OF
THE BENEFITS OF THE USUAL BANKRUPTCY RULE OF EQUALITY, THE JUDGMENT
BELOW MUST BE REVERSED. 
..END :










GORMAN V. WASHINGTON UNIV., 316 U.S. 98 


NO. 711.  ARGUED APRIL 2, 1942.  - DECIDED APRIL 27, 1942.  - 348 MO.
310, 153 S.W.2D 35, WRIT DISMISSED. 


1.  THIS COURT IS WITHOUT JURISDICTION TO REVIEW A DECISION BY A STATE
COURT WHICH IS NOT THE HIGHEST COURT OF THE STATE IN WHICH A DECISION
COULD BE HAD.  JUD.  CODE SEC. 237(B).  P. 99. 

2.  UNDER THE CONSTITUTION OF MISSOURI AND THE RULES OF THE STATE
SUPREME COURT, A JUDGMENT OF A DIVISION OF THAT COURT IN A CASE
INVOLVING A FEDERAL QUESTION IS SUSCEPTIBLE OF REVIEW BY THE FULL COURT
SITTING EN BANC.  P. 99. 

THIS COURT IS WITHOUT JURISDICTION TO REVIEW SUCH A JUDGMENT UNLESS
THE PETITIONER HAS FIRST APPLIED FOR REVIEW OF THE JUDGMENT BY THE FULL
COURT SITTING EN BANC. 

3.  UPON APPLICATION TO THIS COURT FOR REVIEW OF THE JUDGMENT OF A
STATE COURT IT IS THE PETITIONER'S BURDEN TO SHOW AFFIRMATIVELY THAT
THIS COURT HAS JURISDICTION.  P. 101. 

GORMAN, CITY TREASURER OF KANSAS CITY, ET AL. V. WASHINGTON
UNIVERSITY. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

CERTIORARI, 314 U.S. 604, TO REVIEW A JUDGMENT WHICH AFFIRMED A
JUDGMENT ENJOINING THE COLLECTION OF A TAX. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BROUGHT THIS SUIT IN THE CIRCUIT COURT OF JACKSON COUNTY,
MISSOURI, TO RESTRAIN THE ASSESSMENT AND COLLECTION OF A TAX UPON ITS
REAL ESTATE.  THE VALIDITY OF THE PROVISIONS OF THE STATE CONSTITUTION
AND STATUTES UNDER WHICH THE TAX WAS LAID WAS ASSAILED ON THE GROUND
THAT THEY VIOLATE THE TAX-EXEMPTION PROVISION OF RESPONDENT'S CHARTER
AND THEREFORE CONFLICT WITH THE CONTRACT CLAUSE OF THE CONSTITUTION,
ARTICLE I, SEC. 10.  THE SUPREME COURT OF MISSOURI AFFIRMED THE
JUDGMENT OF THE TRIAL COURT ENJOINING COLLECTION OF THE TAX.  348 MO.
310, 153 S.W.2D 35.  BOTH COURTS HELD THAT THE MISSOURI CONSTITUTION
AND STATUTES AS APPLIED VIOLATE RESPONDENT'S CHARTER PROVISIONS FOR TAX
EXEMPTION, AND INFRINGE THE CONTRACT CLAUSE OF THE CONSTITUTION.  CF.
WASHINGTON UNIVERSITY V. ROUSE, 8 WALL.  439; WASHINGTON UNIVERSITY V.
BAUMANN, 341 MO. 708, 108 S.W.2D 403.  WE GRANTED A WRIT OF CERTIORARI,
314 U.S. 604, TO REVIEW THE CONSTITUTIONAL QUESTION DECIDED BY THE
STATE COURT. 

UPON EXAMINATION OF THE RECORD IT APPEARS THAT THE DECISION AND
JUDGMENT BROUGHT HERE FOR REVIEW WERE RENDERED BY DIVISION ONE OF THE
SUPREME COURT OF MISSOURI, WHICH CONSISTS OF FOUR OF THE SEVEN JUDGES
OF THE COURT.  IT DOES NOT APPEAR THAT THE JUDGMENT THUS RENDERED HAS
BEEN REVIEWED BY THE SUPREME COURT SITTING EN BANC, OR THAT PETITIONERS
HAVE MADE APPLICATION, AS THEY COULD HAVE DONE UNDER SEC. 4 OF THE 1890
AMENDMENTS TO ARTICLE VI OF THE STATE CONSTITUTION, TO TRANSFER THE
CAUSE TO THE FULL COURT FOR REVIEW.  THE QUESTION THUS ARISES WHETHER
WE HAVE JURISDICTION UNDER SEC. 237(B) OF THE JUDICIAL CODE, WHICH
RESTRICTS OUR AUTHORITY TO REVIEW DECISIONS OF STATE COURTS TO THOSE
CAUSES WHEREIN A JUDGMENT HAS BEEN RENDERED "BY THE HIGHEST COURT OF A
STATE IN WHICH A DECISION COULD BE HAD." 

CONSTITUTION PROVIDES THAT THE SUPREME COURT SHALL CONSIST OF SEVEN
JUDGES AND "SHALL BE DIVIDED INTO TWO DIVISIONS," ONE OF FOUR AND THE
OTHER OF THREE JUDGES.  IT DIRECTS THAT A DIVISION SHALL SIT SEPARATELY
FOR THE HEARING AND DISPOSITION OF CAUSES, AND SHALL HAVE CONCURRENT
JURISDICTION OF ALL MATTERS AND CAUSES IN THE SUPREME COURT, EXCEPT
THAT DIVISION TWO SHALL HAVE EXCLUSIVE COGNIZANCE OF CRIMINAL CAUSES,
AND THAT THE "JUDGMENTS AND DECREES OF EITHER DIVISION, AS TO CAUSES
AND MATTERS PENDING BEFORE IT, SHALL HAVE THE FORCE AND EFFECT OF THOSE
OF THE COURT." 

BUT SEC. 1 ALSO CONTAINS A PROVISO THAT A CAUSE PENDING IN A DIVISION
MAY BE TRANSFERRED TO THE COURT AS PROVIDED IN SEC. 4.  SECTION 4 READS
AS FOLLOWS:  "WHEN THE JUDGES OF A DIVISION ARE EQUALLY DIVIDED IN
OPINION IN A CAUSE, OR WHEN A JUDGE OF A DIVISION DISSENTS FROM THE
OPINION THEREIN, OR WHEN A FEDERAL QUESTION IS INVOLVED, THE CAUSE, ON
THE APPLICATION OF THE LOSING PARTY, SHALL BE TRANSFERRED TO THE COURT
FOR ITS DECISION; ...  "  AND RULE 24 OF THE RULES OF THE SUPREME COURT
OF MISSOURI AUTHORIZES THE TRANSFER BY MOTION OF A CAUSE PURSUANT TO
THE PROVISIONS OF THE CONSTITUTION, "FROM EITHER DIVISION TO COURT EN
BANC" "AFTER FINAL DISPOSITION OF THE CAUSE BY THE DIVISION." 

UNDER THESE PROVISIONS, DIVISION ONE OF THE SUPREME COURT OF
MISSOURI, SITTING IN THE PRESENT CAUSE, IN WHICH "A FEDERAL QUESTION IS
INVOLVED," WAS NOT THE LAST STATE COURT IN WHICH A DECISION OF THAT
QUESTION COULD BE HAD.  SUCH A CASE IS ONE WHICH "AFTER FINAL
DISPOSITION OF THE CAUSE BY THE DIVISION" COULD ON PETITIONERS'
APPLICATION BE TRANSFERRED TO THE FULL COURT FOR REVIEW, AND THE
DECISION AND JUDGMENT RENDERED BY DIVISION ONE COULD BE SET ASIDE BY
THE COURT SITTING EN BANC.  SINCE THE CONSTITUTION OF MISSOURI HAS THUS
PROVIDED IN THIS CLASS OF CASES FOR REVIEW OF THE JUDGMENT OF A
DIVISION, THE JUDGMENT HERE OF DIVISION ONE IS NOT THAT OF THE "HIGHEST
COURT OF THE STATE IN WHICH A DECISION COULD BE HAD" WITHIN THE MEANING
OF SEC. 237(B) OF THE JUDICIAL CODE. 

IT WAS THE PURPOSE OF THE JUDICIARY ACT OF FEBRUARY 13, 1925, AS WELL
AS THAT OF ALL ITS PREDECESSORS, THAT NO DECISION OF A STATE COURT
SHOULD BE BROUGHT HERE FOR REVIEW EITHER BY APPEAL OR CERTIORARI UNTIL
THE POSSIBILITIES AFFORDED BY STATE PROCEDURE FOR ITS REVIEW BY ALL
STATE TRIBUNALS HAVE BEEN EXHAUSTED.  FISHER V. PERKINS, 122 U.S. 522;
MCCOMB V. COMMISSIONERS, 91 U.S. 1, 2; MCMASTER V. GOULD, 276 U.S. 284;
SOUTHERN ELECTRIC CO. V. STODDARD, 269 U.S. 186; STRATTON V. STRATTON,
239 U.S. 55; MULLEN V. WESTERN UNION BEEF CO., 173 U.S. 116; GREAT
WESTERN TELEGRAPH CO. V. BURNHAM, 162 U.S. 339.  HENCE IT IS THE LAST
STATE TRIBUNAL - HERE THE COURT EN BANC - TO WHICH THE CAUSE COULD BE
BROUGHT FOR REVIEW WHICH IS THE "HIGHEST COURT OF A STATE IN WHICH A
DECISION COULD BE HAD" WITHIN THE MEANING OF THE JURISDICTIONAL
STATUTE, REGARDLESS OF THE PARTICULAR DESCRIPTION OR DESIGNATION WHICH
MAY BE APPLIED TO IT BY STATE STATUTES. 

UPON APPLICATION TO THIS COURT FOR REVIEW OF THE JUDGMENT OF A STATE
COURT, IT IS THE PETITIONER'S BURDEN TO SHOW AFFIRMATIVELY THAT WE HAVE
JURISDICTION.  MEMPHIS NATURAL GAS CO. V. BEELER, 315 U.S. 649.  AS THE
RECORD FAILS TO DISCLOSE THAT THE JUDGMENT, REVIEW OF WHICH IS NOW
SOUGHT, IS THAT OF THE HIGHEST COURT OF THE STATE IN WHICH A DECISION
COULD BE HAD, WE ARE WITHOUT JURISDICTION AND THE WRIT MUST BE
DISMISSED. 
..END :





















WALEY V. JOHNSTON, 316 U.S. 101 


NO. 1006.  DECIDED APRIL 27, 1942.  - 124 F.2D 587, REVERSED. 


1.  A CONVICTION ON A PLEA OF GUILTY COERCED BY A FEDERAL LAW
ENFORCEMENT OFFICER IS WANTING IN DUE PROCESS OF LAW.  P. 103. 

2.  A PLEA OF GUILTY WHICH BECAUSE OF COERCION WILL NOT SUPPORT A
CONVICTION HAS NO VALIDITY AS A WAIVER OF THE RIGHT TO ASSAIL A
CONVICTION BASED ON THE PLEA.  P. 104. 

3.  THE ISSUE OF WHETHER A CONVICTION WAS VOID BECAUSE BASED ON A
COERCED PLEA OF GUILTY, WHEN DEPENDENT ON FACTS DEHORS THE RECORD OF
THE CRIMINAL CASE, AND NOT OPEN TO CONSIDERATION OR REVIEW ON APPEAL,
IS DETERMINABLE IN HABEAS CORPUS.  P. 104. 

4.  A DECISION DENYING A WRIT OF ERROR CORAM NOBIS IN A CRIMINAL
CASE, RENDERED ON THE FACE OF THE PETITION AND WITHOUT A HEARING, AND
NOT SHOWN TO HAVE INVOLVED THE ISSUE RAISED LATER BY A PETITION FOR
HABEAS CORPUS, HELD NOT RES JUDICATA AS APPLIED TO THE LATTER.  P.
105. 

5.  WHEN A MATERIAL ISSUE OF FACT IS RAISED IN HABEAS CORPUS THE
PRISONER MUST BE PRODUCED AND THE MATTER HEARD BY THE COURT OR JUDGE. 
P. 104. 

WALEY V. JOHNSTON, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT. 

CERTIORARI (HEREIN GRANTED) TO REVIEW A JUDGMENT WHICH AFFIRMED A
JUDGMENT DENYING AN APPLICATION FOR A WRIT OF HABEAS CORPUS, 38
F.SUPP.  408. 

PER CURIAM. 

PETITIONER FILED HIS PETITION FOR HABEAS CORPUS IN THE DISTRICT
COURT, ALLEGING UPON OATH THAT HE HAD BEEN COERCED, BY INTIMIDATION AND
THREATS BY AN AGENT OF THE FEDERAL BUREAU OF INVESTIGATION, TO PLEAD
GUILTY TO AN INDICTMENT FOR KIDNAPING, AND THAT HE IS HELD IN CUSTODY
BY RESPONDENT UNDER THE CONSEQUENT JUDGMENT OF CONVICTION AND
COMMITMENT. 

THE PETITION STATED GENERALLY THAT THREATS OF FEDERAL BUREAU OF
INVESTIGATION AGENTS TO THROW PETITIONER OUT OF A WINDOW AND "BEAT ME
UP" "DIDN'T BOTHER ME."  BUT IT SPECIFICALLY ALLEGED THAT PETITIONER'S
PLEA OF GUILTY HAD BEEN INDUCED BY THE THREATS OF A NAMED FEDERAL
BUREAU OF INVESTIGATION AGENT TO PUBLISH FALSE STATEMENTS AND
MANUFACTURE FALSE EVIDENCE THAT THE KIDNAPED PERSON HAD BEEN INJURED,
AND BY SUCH PUBLICATIONS AND FALSE EVIDENCE TO INCITE THE PUBLIC AND TO
CAUSE THE STATE OF WASHINGTON TO HANG THE PETITIONER AND THE OTHER
DEFENDANTS. 

THE DISTRICT COURT ORDERED RESPONDENT TO SHOW CAUSE WHY A WRIT SHOULD
NOT ISSUE, AND APPOINTED COUNSEL TO REPRESENT PETITIONER.  RESPONDENT'S
RETURN TO THE ORDER INCLUDED CERTIFIED COPIES OF THE DOCKET ENTRIES,
INDICTMENT, TRANSCRIPT OF PROCEEDINGS ON ARRAIGNMENT, ENTRY OF PLEA,
JUDGMENT AND SENTENCE, AND COMMITMENT PAPERS.  THE TRANSCRIPT DISCLOSES
THAT THE TRIAL COURT HAD EXPLAINED TO PETITIONER HIS RIGHT TO BE
ASSISTED BY COUNSEL AND HAD APPOINTED COUNSEL WHO REPRESENTED HIM AT
THE TRIAL.  THE RETURN ALSO INCLUDED AN AFFIDAVIT OF A SPECIAL AGENT OF
THE BUREAU OF INVESTIGATION, NOT THE ONE MENTIONED IN THE PETITION,
STATING THAT PETITIONER, IN AFFIANT'S PRESENCE, VOLUNTARILY SIGNED TWO
STATEMENTS CONFESSING HIS GUILT, AND THAT NO THREAT OR PROMISE TO
PETITIONER OF ANY KIND WAS MADE IN AFFIANT'S PRESENCE.  THE RETURN MADE
NO DENIAL OF THE ALLEGATIONS OF COERCION SPECIFICALLY SET FORTH AND
RELIED ON IN THE PETITION. 

THE DISTRICT COURT DENIED THE APPLICATION FOR THE WRIT WITHOUT
HEARING EVIDENCE AND WITHOUT DIRECTING THE PRODUCTION OF THE PRISONER
IN COURT.  IT CONCLUDED THAT THE ALLEGATIONS OF COERCION BY THREATENING
TO PUBLISH FALSE STATEMENTS AND MANUFACTURE FALSE EVIDENCE WERE
INCONSISTENT WITH PETITIONER'S STATEMENT THAT THREATS BY GOVERNMENT
AGENTS TO THROW HIM OUT OF THE WINDOW AND BEAT HIM UP "DIDN'T BOTHER"
HIM; THAT THE TRANSCRIPT FILED WITH THE RETURN SHOWED THAT PETITIONER
WAS NEITHER "ACTUATED NOR INDUCED BY FEAR"; AND THAT AN EARLIER
DECISION OF THE SENTENCING JUDGE DENYING PETITIONER'S APPLICATION FOR A
WRIT OF CORAM NOBIS WAS RES JUDICATA. 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT AFFIRMED THE ORDER OF THE
DISTRICT COURT, 124 F.2D 587.  IN VIEW OF THE FACT THAT PETITIONER WHEN
HE PLEADED GUILTY HAD BEEN REPRESENTED BY COUNSEL, A MAJORITY OF THE
COURT THOUGHT HE COULD NOT BY HABEAS CORPUS ATTACK HIS SENTENCE ON THE
GROUND THAT HIS PLEA WAS COERCED.  THE OPINION STATES THAT PETITIONER
"WAIVED THE DEFENSE AND THE CONSTITUTIONAL RIGHT, IF ANY HE HAD, AND
CANNOT ASSERT IT NOW ON HABEAS CORPUS PROCEEDINGS."  THE CASE IS BEFORE
US ON A MOTION OF PETITIONER TO PROCEED IN FORMA PAUPERIS ON HIS
PETITION FOR CERTIORARI AND THE GOVERNMENT'S CONFESSION OF ERROR.  WE
GRANT THE MOTION AND THE PETITION FOR CERTIORARI. 

THE GOVERNMENT CONFESSES ERROR FOR THE REASON THAT THE HABEAS CORPUS
PETITION RAISES THE MATERIAL ISSUE WHETHER THE PLEA WAS IN FACT COERCED
BY THE PARTICULAR THREATS ALLEGED WHICH STAND UNDENIED ON THE RECORD,
AND THAT UPON THAT ISSUE PETITIONER IS ENTITLED TO A HEARING IN
ACCORDANCE WITH WALKER V. JOHNSTON, 312 U.S. 275. 

TRUE, PETITIONER'S ALLEGATIONS IN THE CIRCUMSTANCES OF THIS CASE MAY
TAX CREDULITY.  BUT IN VIEW OF THEIR SPECIFIC NATURE, THEIR LACK OF ANY
NECESSARY RELATION TO THE OTHER THREATS ALLEGED, AND THE FAILURE OF
RESPONDENT TO DENY OR TO ACCOUNT FOR HIS FAILURE TO DENY THEM
SPECIFICALLY, WE CANNOT SAY THAT THE ISSUE WAS NOT ONE CALLING FOR A
HEARING WITHIN THE PRINCIPLES LAID DOWN IN WALKER V. JOHNSTON, SUPRA.
IF THE ALLEGATIONS ARE FOUND TO BE TRUE, PETITIONER'S CONSTITUTIONAL
RIGHTS WERE INFRINGED.  FOR A CONVICTION ON A PLEA OF GUILTY COERCED BY
A FEDERAL LAW ENFORCEMENT OFFICER IS NO MORE CONSISTENT WITH DUE
PROCESS THAN A CONVICTION SUPPORTED BY A COERCED CONFESSION.  BRAM V.
UNITED STATES, 168 U.S. 532, 543; CHAMBERS V. FLORIDA, 309 U.S. 227. 
AND IF HIS PLEA WAS SO COERCED AS TO DEPRIVE IT OF VALIDITY TO SUPPORT
THE CONVICTION, THE COERCION LIKEWISE DEPRIVED IT OF VALIDITY AS A
WAIVER OF HIS RIGHT TO ASSAIL THE CONVICTION.  JOHNSON V. ZERBST, 304
U.S. 458, 467. 

THE ISSUE HERE WAS APPROPRIATELY RAISED BY THE HABEAS CORPUS
PETITION.  THE FACTS RELIED ON ARE DEHORS THE RECORD AND THEIR EFFECT
ON THE JUDGMENT WAS NOT OPEN TO CONSIDERATION AND REVIEW ON APPEAL.  IN
SUCH CIRCUMSTANCES THE USE OF THE WRIT IN THE FEDERAL COURTS TO TEST
THE CONSTITUTIONAL VALIDITY OF A CONVICTION FOR CRIME IS NOT RESTRICTED
TO THOSE CASES WHERE THE JUDGMENT OF CONVICTION IS VOID FOR WANT OF
JURISDICTION OF THE TRIAL COURT TO RENDER IT.  IT EXTENDS ALSO TO THOSE
EXCEPTIONAL CASES WHERE THE CONVICTION HAS BEEN IN DISREGARD OF THE
CONSTITUTIONAL RIGHTS OF THE ACCUSED, AND WHERE THE WRIT IS THE ONLY
EFFECTIVE MEANS OF PRESERVING HIS RIGHTS.  MOORE V. DEMPSEY, 261 U.S.
86; MOONEY V. HOLOHAN, 294 U.S. 103; BOWEN V. JOHNSTON, 306 U.S. 19,
24. 

THE PRINCIPLE OF RES JUDICATA DOES NOT APPLY TO A DECISION ON HABEAS
CORPUS REFUSING TO DISCHARGE A PRISONER, SALINGER V. LOISEL, 265 U.S.
224.  IT DOES NOT APPEAR THAT ON PETITIONER'S EARLIER APPLICATION FOR A
WRIT OF CORAM NOBIS THE SAME ISSUE WAS RAISED AS THAT NOW PRESENTED. 
THE EARLIER APPLICATION WAS DENIED FOR INSUFFICIENCY UPON ITS FACE AND
WITHOUT A HEARING.  THERE IS THUS NO BASIS FOR THE HOLDING OF THE
DISTRICT COURT THAT THE DENIAL IS RES JUDICATA OF THE PRESENT
PETITION. 

THE JUDGMENT BELOW WILL BE VACATED AND THE CAUSE REMANDED FOR A
HEARING IN CONFORMITY TO WALKER V. JOHNSTON, SUPRA.  SO ORDERED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















LABOR BOARD V. NEVADA COPPER CO., 316 U.S. 105 


NO. 774.  ARGUED APRIL 8, 1942.  - DECIDED APRIL 27, 1942.  - 122 F.2D
587, REVERSED. 


FINDINGS OF FACT BY THE NATIONAL LABOR RELATIONS BOARD SUPPORTED BY
EVIDENCE ARE CONCLUSIVE.  P. 106. 

NATIONAL LABOR RELATIONS BOARD V. NEVADA CONSOLIDATED COPPER CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 315 U.S. 789, TO REVIEW A JUDGMENT REFUSING TO ENFORCE AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 

PER CURIAM. 

IN THIS CASE THE NATIONAL LABOR RELATIONS BOARD FOUND THAT
RESPONDENT, IN REFUSING TO REEMPLOY A NUMBER OF ITS FORMER EMPLOYEES
AND TO EMPLOY TWO NEW APPLICANTS, HAD DISCRIMINATED AGAINST THEM IN
ORDER TO DISCOURAGE MEMBERSHIP IN A LABOR UNION IN VIOLATION OF SEC.
8(1) AND (3) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 29
U.S.C. SEC. 151.  THE BOARD MADE ITS ORDER DIRECTING EMPLOYMENT OF
THESE INDIVIDUALS WITH BACK PAY.  THE CIRCUIT COURT OF APPEALS REFUSED
TO ENFORCE THE BOARD'S ORDER ON THE GROUND THAT ITS FINDINGS WERE
WITHOUT SUBSTANTIAL SUPPORT IN THE EVIDENCE.  122 F.2D 587. 

EXAMINATION OF THE RECORD DISCLOSES THAT THERE WAS SUBSTANTIAL
EVIDENCE FROM WHICH THE BOARD COULD HAVE CONCLUDED THAT RESPONDENT'S
REFUSAL TO EMPLOY THE MEN WAS MOTIVATED BY ITS BELIEF THAT THEY HAD
ENGAGED OR THREATENED TO ENGAGE IN DESTRUCTION OF RESPONDENT'S PROPERTY
AND HAD THREATENED TO INJURE SOME OF RESPONDENT'S MANAGERIAL EMPLOYEES
AND MEMBERS OF THEIR FAMILIES.  THERE WAS ALSO SUBSTANTIAL EVIDENCE
FROM WHICH THE BOARD COULD HAVE CONCLUDED, AS IT DID, THAT RESPONDENT'S
MOTIVE FOR REFUSING THE EMPLOYMENT WAS DISCOURAGEMENT OF MEMBERSHIP IN
A LABOR UNION.  THE POSSIBILITY OF DRAWING EITHER OF TWO INCONSISTENT
INFERENCES FROM THE EVIDENCE DID NOT PREVENT THE BOARD FROM DRAWING ONE
OF THEM, AS THE COURT BELOW SEEMS TO HAVE THOUGHT. 

WE HAVE REPEATEDLY HELD THAT CONGRESS, BY PROVIDING, SEC. 10(C), (E)
AND (F), OF THE NATIONAL LABOR RELATIONS ACT, THAT THE BOARD'S FINDINGS
"AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE,"
PRECLUDES THE COURTS FROM WEIGHING EVIDENCE IN REVIEWING THE BOARD'S
ORDERS, AND IF THE FINDINGS OF THE BOARD ARE SUPPORTED BY EVIDENCE THE
COURTS ARE NOT FREE TO SET THEM ASIDE, EVEN THOUGH THE BOARD COULD HAVE
DRAWN DIFFERENT INFERENCES.  LABOR BOARD V. LINK-BELT CO., 311 U.S.
584, AND CASES CITED; LABOR BOARD V. AUTOMOTIVE MAINTENANCE CO., 315
U.S. 282; CF. SWAYNE & HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 307;
FEDERAL TRADE COMM'N V. PACIFIC PAPER ASSN., 273 U.S. 52, 63; FEDERAL
TRADE COMM'N V. ALGOMA CO., 291 U.S. 67, 73.  SINCE UPON AN EXAMINATION
OF THE RECORD WE CANNOT SAY THAT THE FINDINGS OF FACT OF THE BOARD ARE
WITHOUT SUPPORT IN THE EVIDENCE, THE JUDGMENT BELOW MUST BE REVERSED
WITH DIRECTIONS TO ENFORCE THE BOARD'S ORDER, BUT WITH THE MODIFICATION
PROPOSED BY THE BOARD TO CONFORM TO OUR DECISION IN REPUBLIC STEEL
CORP. V. LABOR BOARD, 311 U.S. 7.  REVERSED. 
..END :


















HELVERING V. CREDIT ALLIANCE CO., 316 U.S. 107 


NO. 708.  ARGUED APRIL 7, 1942.  - DECIDED APRIL 27, 1942.  - 122 F.2D
361, AFFIRMED. 


1.  UNDER SEC. 27(F) OF THE REVENUE ACT OF 1936, A DISTRIBUTION IN
LIQUIDATION OF SURPLUS ACCUMULATED SINCE FEBRUARY 28, 1913, IS TO BE
TREATED, IN COMPUTING THE DIVIDENDS-PAID CREDIT FOR THE PURPOSE OF THE
TAX IMPOSED BY SEC. 14 ON UNDISTRIBUTED NET INCOME, AS A TAXABLE
DIVIDEND PAID.  P. 110. 

SO HELD ALTHOUGH, UNDER SEC. 112(B)(6), THE DISTRIBUTION RESULTED IN
NO GAIN OR LOSS TO THE DISTRIBUTEE FOR TAX PURPOSES; AND ALTHOUGH THE
DISTRIBUTEE DID NOT, IN THE TAX YEAR OF SUCH DISTRIBUTION, DISTRIBUTE
TO ITS STOCKHOLDERS ANY PART OF THE DISTRIBUTION, AND DID NOT APPORTION
OR ALLOCATE TO THE DISTRIBUTOR ANY PART THEREOF. 

2.  THE CLAUSE "PROPERLY CHARGEABLE TO THE EARNINGS OR PROFITS
ACCUMULATED AFTER FEBRUARY 28, 1913" IN SUBSECTION 27(F) REFERS TO THE
EARNINGS OR PROFITS OF THE DISTRIBUTOR, NOT TO THOSE OF THE
DISTRIBUTEE.  P. 111. 

3.  SUBSECTION (H) OF SEC. 27 OF THE REVENUE ACT OF 1936, DEALING
WITH "NONTAXABLE DISTRIBUTIONS," IS INAPPLICABLE TO THE FACTS OF THIS
CASE, AND DOES NOT PRECLUDE THE APPLICATION HERE OF SUBSECTION (F).  P.
112. 

4.  BECAUSE THE DISTRIBUTION IN THIS CASE WAS OF PROPERTY AND MONEY,
AND NOT OF STOCK OR SECURITIES, SEC. 115(H) AS IT EXISTED AT THE TIME
OF THIS TRANSACTION IS INAPPLICABLE; AND (CONSIDERING THE UNAMBIGUOUS
LANGUAGE OF SEC. 27(F)) THE POLICY DISCLOSED BY ITS SUBSEQUENT
AMENDMENT MAY NOT BE READ INTO IT.  P. 112. 

5.  TREASURY REGULATIONS 94, ART. 27(F), HELD CONTRARY TO SUBSECTION
(F) OF SEC. 27 OF THE REVENUE ACT OF 1936 AND AN ATTEMPT TO ADD A
SUPPLEMENTARY LEGISLATIVE PROVISION, AND THEREFORE INEFFECTIVE.  P.
113. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. CREDIT ALLIANCE CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 314 U.S. 604, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 42 B.T.A. 1020, SETTING ASIDE A DETERMINATION
OF A DEFICIENCY IN UNDISTRIBUTED PROFITS TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE COMMERCIAL CREDIT COMPANY, A DELAWARE CORPORATION, ACQUIRED AND
OWNED OVER 99% OF THE CAPITAL STOCK OF THE RESPONDENT, A NEW YORK
CORPORATION ACTIVELY ENGAGED IN BUSINESS.  IN 1936 THE RESPONDENT'S
STOCKHOLDERS AND DIRECTORS RESOLVED TO LIQUIDATE THE CORPORATION AND TO
MAKE DISTRIBUTION TO ITS STOCKHOLDERS IN LIQUIDATION.  PART OF THE
DISTRIBUTION SO MADE IN 1936 WAS OF CASH AND PROPERTY CONSTITUTING
SURPLUS EARNED AFTER FEBRUARY 28, 1913, OF THE VALUE OF $950,734.  OF
THIS, COMMERCIAL CREDIT COMPANY'S SHARE WAS $947,228.  FURTHER
DISTRIBUTIONS WERE MADE IN 1937, AND FINAL DISTRIBUTION IN 1938, AND
THE CORPORATION WAS LEGALLY DISSOLVED.  THE LIQUIDATION COMPLIED WITH
THE PROVISIONS OF SEC. 112(B)(6) OF THE REVENUE ACT OF 1936,  FN1
UNDER WHICH NO GAIN OR LOSS FOR TAX PURPOSES WAS ATTRIBUTABLE TO
COMMERCIAL CREDIT COMPANY AS A RESULT OF THE DISTRIBUTION.  THAT
CORPORATION DID NOT, IN 1936, DISTRIBUTE TO ITS STOCKHOLDERS ANY OF THE
DISTRIBUTION RECEIVED BY IT FROM THE RESPONDENT AND DID NOT APPORTION
OR ALLOCATE ANY PART THEREOF TO THE RESPONDENT. 

THE QUESTION IS, TO WHAT DIVIDENDS-PAID CREDIT IS THE RESPONDENT
ENTITLED UNDER THE APPLICABLE SECTIONS OF THE REVENUE ACT OF 1936. 
FN2 

BY SEC. 14 THERE WAS IMPOSED FOR THE FIRST TIME A TAX UPON
"UNDISTRIBUTED NET INCOME."  IN ORDER TO COMPUTE THE BASE FOR THIS LEVY
THE DIVIDENDS-PAID CREDIT IS TO BE DEDUCTED FROM ADJUSTED NET INCOME. 

PROVIDES THAT, FOR THE PURPOSES OF TITLE I OF THE ACT, THE DIVIDENDS
PAID CREDIT SHALL BE THE AMOUNT OF DIVIDENDS PAID DURING THE TAXABLE
YEAR.  EACH OF THE ADDITIONAL SUBSECTIONS DEALS WITH A SEPARATE TOPIC
RELATING TO THE COMPUTATION AND ALLOWANCE OF THE CREDIT.  THE ONLY ONES
HERE OF IMPORTANCE ARE (F) AND (H). 

"(F)  DISTRIBUTIONS IN LIQUIDATION.  - IN THE CASE OF AMOUNTS
DISTRIBUTED IN LIQUIDATION THE PART OF SUCH DISTRIBUTION WHICH IS
PROPERLY CHARGEABLE TO THE EARNINGS OR PROFITS ACCUMULATED AFTER
FEBRUARY 28, 1913, SHALL, FOR THE PURPOSES OF COMPUTING THE DIVIDENDS
PAID CREDIT UNDER THIS SECTION, BE TREATED AS A TAXABLE DIVIDEND
PAID." 

"(H)  NONTAXABLE DISTRIBUTIONS.  - IF ANY PART OF A DISTRIBUTION
(INCLUDING STOCK DIVIDENDS AND STOCK RIGHTS) IS NOT A TAXABLE DIVIDEND
IN THE HANDS OF SUCH OF THE SHAREHOLDERS AS ARE SUBJECT TO TAXATION
UNDER THIS TITLE FOR THE PERIOD IN WHICH THE DISTRIBUTION IS MADE, NO
DIVIDENDS PAID CREDIT SHALL BE ALLOWED WITH RESPECT TO SUCH PART." 

THE TAXPAYER INSISTS THAT THE DISTRIBUTION IN QUESTION IS GOVERNED BY
THE PROVISIONS OF (F).  THE GOVERNMENT ASSERTS THAT IT IS NOT, FOR
THESE REASONS:  THAT THE PHRASE "WHICH IS PROPERLY CHARGEABLE TO THE
EARNINGS OR PROFITS ACCUMULATED AFTER FEBRUARY 28, 1913" TAKES THE
DISTRIBUTION OUT OF THE PURVIEW OF THE SECTION; THAT (H) DENIES THE
BENEFIT OF (F) TO THE TAXPAYER IF THE MONEY OR PROPERTY TRANSFERRED IS
NOT TAXABLE TO THE DISTRIBUTEE; THAT THE POLICY OF THE ACT, AND THE
PURPOSE UNDERLYING PROVISIONS OTHER THAN SEC. 27, REQUIRE THAT (F) BE
NOT CONSTRUED AS PERMITTING THE CREDIT WHERE THE DISTRIBUTION GIVES
RISE TO NO TAX UPON THE DISTRIBUTEE, AND THAT AN APPLICABLE REGULATION
PRECLUDES THE CREDIT. 

THE GOVERNMENT'S SECOND CONTENTION HAS BEEN SUSTAINED BY THE CIRCUIT
COURT OF APPEALS FOR THE FIFTH CIRCUIT,  FN3 BUT BOTH THE FIRST AND THE
SECOND HAVE BEEN OVERRULED BY THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT,  FN4  AND BY THE BOARD OF TAX APPEALS AND THE COURT
BELOW IN THE INSTANT CASE.  FN5  IN VIEW OF THE CONFLICT, WE GRANTED
CERTIORARI. 

1.  ALTHOUGH A DISTRIBUTION IN LIQUIDATION OF EARNINGS WHICH ACCRUED
SUBSEQUENTLY TO FEBRUARY 28, 1913, DOES NOT CONSTITUTE A DIVIDEND IN
THE PROPER SENSE OF THE TERM,  FN6  SUBSECTION (F) CATEGORICALLY
DECLARES THAT A LIQUIDATING DISTRIBUTION, TO THE EXTENT IT IS COMPOSED
OF SUCH EARNINGS, SHALL, FOR THE PURPOSES OF COMPUTING THE
DIVIDENDSPAID CREDIT "BE TREATED AS A TAXABLE DIVIDEND PAID."  PLAINLY
THE SECTION INTENDS THAT A DISTRIBUTION OF SUCH EARNINGS SHALL BE
CONSIDERED A DIVIDEND.  FURTHER IT PROVIDES THAT THE DISTRIBUTING
CORPORATION MAY USE THE AMOUNT IN COMPUTING ITS CREDIT FOR DIVIDENDS
PAID.  AND, TO PUT THE MATTER BEYOND CAVIL, THE SECTION ALSO SAYS THAT
THE DISTRIBUTION SHALL BE TREATED AS THE PAYMENT TO THE DISTRIBUTEE OF
A TAXABLE DIVIDEND. 

THE GOVERNMENT, HOWEVER, CONTENDS THAT THE CLAUSE "PROPERLY
CHARGEABLE TO THE EARNINGS OR PROFITS ACCUMULATED AFTER FEBRUARY 28,
1913," MEANS PROPERLY CHARGEABLE TO THE DISTRIBUTEE AS SUCH EARNINGS OR
PROFITS.  THE ARGUMENT HAS, WE THINK, RIGHTLY BEEN REJECTED BY ALL THE
COURTS WHICH HAVE CONSIDERED IT.  THE LINE DRAWN IN ALL OF THE REVENUE
ACTS BETWEEN PROFITS ACCUMULATED BEFORE THE ENACTMENT OF THE FIRST
INCOME TAX ACT AND AFTER THAT DATE, FOR DISTINGUISHING CAPITAL AND
INCOME, FURNISHES THE REASON FOR THE INSERTION OF THE CLAUSE IN
SUBSECTION (F).  SECTION 27 DEALS WITH A CREDIT TO THE DISTRIBUTING
CORPORATION AND THE PHRASE FINDS ITS PROPER OFFICE IN LIMITING THE
AMOUNT OF THE DISTRIBUTION IN LIQUIDATION WHICH MAY BE CONSIDERED A
DIVIDEND FROM EARNINGS OR PROFITS AS DISTINGUISHED FROM ONE COMPOSED OF
CAPITAL.  WE, THEREFORE, CONCLUDE THAT (F), STANDING ALONE, JUSTIFIES
THE DEDUCTION CLAIMED BY THE RESPONDENT. 

2. IT IS URGED THAT THE SWEEPING PROVISION OF (H) PRECLUDES THE
APPLICATION OF (F) IN THE CIRCUMSTANCES DISCLOSED, BECAUSE (H) DENIES
THE CREDIT UNLESS THE AMOUNT DISTRIBUTED IS TAXABLE TO THE
DISTRIBUTEE.  BY CONCESSION, THE DISTRIBUTION HERE DOES NOT RESULT IN
GAIN OR LOSS TO THE PARENT COMPANY.  THE ARGUMENT IS, IN EFFECT, THAT
(H) CREATES AN EXCEPTION TO THE RULE FORMULATED BY (F). 

AS ABOVE SAID, EACH OF THE SUBSECTIONS OF SEC. 27 DEALS WITH A
SPECIFIC AND PARTICULAR TOPIC.  SUBSECTION (F) DEALS WITH
"DISTRIBUTIONS IN LIQUIDATION" WHILE SUBSECTION (H) DEALS WITH
"NONTAXABLE DISTRIBUTIONS."  IF (F) APPLIES IN THIS CASE, (H) IS LEFT
TO COVER A SUBSTANTIAL FIELD OF OTHER SORTS OF DISTRIBUTIONS.  WE
SHOULD, OF COURSE, READ THE TWO SECTIONS AS CONSISTENT RATHER THAN
CONFLICTING, IF THAT BE POSSIBLE.  HERE, IT IS NOT ONLY POSSIBLE BUT
BEGETS NO ABSURD OR IMPRACTICAL RESULT.  WE HOLD THAT (H) IS NOT
APPLICABLE TO THE FACTS OF THIS CASE AND THAT (F) IS. 

3.  THE PETITIONER POINTS OUT THAT THE REVENUE ACT OF 1936 INTRODUCED
A NEW POLICY, - TO TAX UNDISTRIBUTED EARNINGS IN ORDER TO PREVENT A
TAXPAYER FROM ACCUMULATING UNTAXED SURPLUS, BY FORCING THE PAYMENT OF
DIVIDENDS WHICH BECOME TAXABLE IN THE HANDS OF THE DISTRIBUTEE.  THIS
IS TRUE, BUT IT IS ALSO TRUE THAT THE ACT MADE DISTRIBUTIONS TO PARENT
CORPORATIONS NONTAXABLE IN ORDER TO ENCOURAGE THE SIMPLIFICATION OF
CORPORATE STRUCTURES; IT WAS AVOWEDLY FOR THIS REASON THAT SEC.
112(B)(6) PROVIDED THAT NO GAIN OR LOSS TO THE PARENT COMPANY SHOULD IN
SUCH CASE BE RECOGNIZED, AND IT MAY WELL BE THAT SUBSECTION (F) OF SEC.
27 WAS INSERTED WITH THE SAME PURPOSE.  THE GOVERNMENT THAT, AS SEC.
115(H)  FN7  PROVIDES THAT A DISTRIBUTION OF THE TAXPAYER'S STOCK OR
SECURITIES, OR THOSE OF ANOTHER CORPORATION, SHALL NOT BE CONSIDERED A
DISTRIBUTION OF EARNINGS OR PROFITS OF THE TAXPAYER IF NO GAIN TO THE
DISTRIBUTEE FROM THE RECEIPT OF SUCH STOCK OR SECURITIES IS RECOGNIZED
BY THE LAW, SUBSECTION (F) MUST BE READ IN THE LIGHT OF THE POLICY THUS
DECLARED BY SEC. 115(H).  THE LATTER SECTION IS IRRELEVANT TO THIS
CONTROVERSY, BECAUSE THE DISTRIBUTION HERE WAS IN PROPERTY AND MONEY,
AND NOT IN STOCK OR SECURITIES.  SECTION 115(H) WAS AMENDED IN 1938,
SUBSEQUENT TO THE CONSUMMATION OF THE TRANSACTION HERE IN QUESTION, TO
INCLUDE MONEY OR PROPERTY, BUT WE CANNOT, AS THE GOVERNMENT SUGGESTS,
READ INTO THE SECTION, AS IT STOOD WHEN THE TRANSACTION TOOK PLACE, AN
INTENT DERIVED FROM THE POLICY DISCLOSED BY THE SUBSEQUENT AMENDMENT. 

WE SHALL NOT BURDEN THIS OPINION BY EXTENDED REFERENCE TO THE
LEGISLATIVE HISTORY OF THE ACT OF 1936.  IT IS ENOUGH TO SAY THAT IT IS
INCONCLUSIVE AND, TO SOME EXTENT, SUPPORTS THE ARGUMENTS OF BOTH
PARTIES.  BUT WHATEVER MAY BE SAID OF THE POLICY BEHIND THE STATUTE'S
PROVISIONS, WE ARE NOT AT LIBERTY TO DISREGARD THE DIRECT AND
UNAMBIGUOUS LANGUAGE OF SUBSECTION (F). 

4.  TREASURY REGULATIONS 94, ART. 27(F), DECLARE THAT ONE MAKING A
LIQUIDATING DISTRIBUTION OF EARNINGS ACCUMULATED SINCE FEBRUARY 28,
1913, MUST BE DENIED THE DIVIDENDS CREDIT IN RESPECT OF SUCH
DISTRIBUTION UNLESS THE AMOUNT DISTRIBUTED IS TAXABLE IN THE SAME YEAR
TO THE DISTRIBUTEE, BUT FURTHER PROVIDES THAT IF THE DISTRIBUTEE, IN
THAT YEAR, MAKES A DISTRIBUTION WHICH ENTITLES IT TO A DIVIDENDS CREDIT
IT MAY ALLOCATE A PROPER PROPORTION THEREOF TO THE DISTRIBUTOR OF THE
LIQUIDATING DIVIDEND.  IT IS INSISTED THAT THE SITUATION PRESENTED TO
THE TREASURY BY THE VARIOUS PROVISIONS OF THE REVENUE ACT OF 1936 WAS
CONFUSED AND COMPLEX, AND THE ADOPTION OF THE REGULATION WAS PROPER IN
THE CIRCUMSTANCES AND SHOULD CONTROL. 

IN VIEW OF WHAT WE HAVE SAID AS TO THE PLAIN MEANING OF SUBSECTION
(F), WE THINK THAT NO COMPLEXITY OR CONFUSION IS DISCOVERABLE AND THAT
THE REGULATION NOT ONLY WAS CONTRADICTORY OF THE PLAIN TERMS OF THE
SUBSECTION BUT ATTEMPTED TO ADD A SUPPLEMENTARY LEGISLATIVE PROVISION,
WHICH COULD ONLY HAVE BEEN ENACTED BY CONGRESS.  WE HOLD, THEREFORE,
THAT THE COURT BELOW WAS RIGHT IN REFUSING TO GIVE EFFECT TO THE
REGULATION. 

THE JUDGMENT IS AFFIRMED. 

FN1  49 STAT. 1648, 1679. 

FN2  SECS. 14, 27, AND 112, 49 STAT. 1648, 1655, 1665, 1678. 

FN3  CENTENNIAL OIL CO. V. THOMAS, 109 F.2D 359, HUTCHESON, J.,
DISSENTING. 

FN4  COMMISSIONER V. KAY MFG. CORP., 122 F.2D 443. 

FN5  42 B.T.A. 1020; 122 F.2D 361. 

FN6  HELLMICH V. HELLMAN, 276 U.S. 233. 

FN7  49 STAT. 1688. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, MR. JUSTICE REED, AND MR. JUSTICE DOUGLAS
DISSENT.  THEY ARE OF THE OPINION THAT SINCE ART. 27(F) OF TREASURY
REGULATIONS 94 RESOLVES THE AMBIGUITIES BETWEEN SEC. 27(F) AND SEC.
27(H) OF THE REVENUE ACT OF 1936, IT IS A VALID INTERPRETATIVE
REGULATION AND A PROPER EXERCISE OF THE RULE-MAKING AUTHORITY. 
..END :

















GOLDSTEIN V. UNITED STATES, 316 U.S. 114 


NO. 256.  ARGUED FEBRUARY 6, 1942.  - DECIDED APRIL 27, 1942.  - 120
F.2D 485, AFFIRMED. 


INADMISSIBLE IN A CRIMINAL TRIAL IN A FEDERAL COURT, TESTIMONY
(OTHERWISE ADMISSIBLE) OF WITNESSES WHO WERE INDUCED TO TESTIFY BY THE
USE, IN ADVANCE OF THE TRIAL, OF COMMUNICATIONS INTERCEPTED IN
VIOLATION OF THE ACT, BUT TO WHICH COMMUNICATIONS THE DEFENDANTS WERE
NOT PARTIES.  P. 117. 

GOLDSTEIN ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 314 U.S. 588, TO REVIEW THE AFFIRMANCE OF CONVICTIONS OF
USING THE MAILS TO DEFRAUD AND OF CONSPIRACY TO DO SO. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE ALLEGED VIOLATION OF SEC. 605 OF THE FEDERAL
COMMUNICATIONS ACT  FN1  BY THE ADMISSION OF TESTIMONY IN A FEDERAL
CRIMINAL TRIAL.  THE IMPORTANCE OF THE QUESTIONS PRESENTED, AND A
CLAIMED CONFLICT WITH OUR DECISIONS, MOVED US TO GRANT CERTIORARI. 

THE PETITIONERS AND OTHERS WERE INDICTED UNDER THE MAIL FRAUD  FN2
AND CONSPIRACY  FN3 STATUTES.  THE ALLEGED SCHEME WAS TO DEFRAUD
INSURANCE COMPANIES BY PRESENTING FALSE CLAIMS FOR DISABILITY
BENEFITS. 

AT THE OPENING OF THE TRIAL, THE PETITIONERS MOVED THAT THE COURT
SUPPRESS ALL RECORDS AND TRANSCRIPTS OF INTERCEPTED TELEPHONE MESSAGES;
SUPPRESS ALL EVIDENCE THE GOVERNMENT OBTAINED BY THE USE OF SUCH
MESSAGES; SUPPRESS THE TESTIMONY OF ANY WITNESS OBTAINED IN THE FIRST
INSTANCE BY THE USE OF SUCH MESSAGES, AND THAT OF ANY WITNESS WHOSE
RECOLLECTION HAD BEEN REFRESHED OR AIDED BY SUCH MESSAGES. 

A PRELIMINARY HEARING WAS CONDUCTED BY THE TRIAL JUDGE IN ACCORDANCE
WITH THE PRACTICE ESTABLISHED IN NARDONE V. UNITED STATES, 308 U.S.
338.  THE PRINCIPAL SUBJECT OF CONTENTION WAS THE PROSPECTIVE TESTIMONY
OF MESSMAN AND GARROW, ALLEGED CO-CONSPIRATORS WHO, THE PETITIONERS
ASSERTED, HAD CONFESSED AND TURNED STATE'S EVIDENCE BECAUSE THEY HAD
BEEN CONFRONTED WITH INTERCEPTED TELEPHONE MESSAGES.  MESSMAN AND
GARROW WERE PARTIES TO THESE MESSAGES, OR SOME OF THEM, BUT THE
PETITIONERS WERE NOT.  FN4  THE JUDGE ORDERED ALL RECORDS AND
TRANSCRIPTS OF INTERCEPTED MESSAGES SUPPRESSED AS WELL AS ALL EVIDENCE
OBTAINED AS A RESULT OF SUCH MESSAGES, BUT HE REFUSED TO ORDER
SUPPRESSION OF THE TESTIMONY OF WITNESSES WHOSE MEMORIES HAD BEEN
REFRESHED OR AIDED THEREBY.  HE RESERVED TO THE TRIAL FINAL DECISION ON
SO MUCH OF THE MOTION AS REQUESTED THE SUPPRESSION OF TESTIMONY ALLEGED
TO BE THE RESULT OF INFORMATION DERIVED FROM THE MESSAGES. 

AT THE TRIAL, GOVERNMENT WITNESSES TESTIFIED THAT WIRE TAPPING HAD
NOT FURNISHED CLUES USED IN PREPARING THE CASE.  MESSMAN AND GARROW
WERE PERMITTED TO TESTIFY TO THE FACTS OF WHICH THEY CLAIMED TO HAVE
KNOWLEDGE, OVER THE OBJECTION OF PETITIONERS.  THEY DID NOT REFER TO
ANY INTERCEPTED MESSAGES OR TO THEIR CONTENTS. 

THE PETITIONERS WERE CONVICTED AND THE JUDGMENTS WERE AFFIRMED ON
APPEAL.  FN5  THE CIRCUIT COURT OF APPEALS HELD THAT THE CONVICTIONS
OUGHT NOT TO STAND IF EITHER MESSMAN OR GARROW SHOULD NOT HAVE BEEN
ALLOWED TO TESTIFY.  IT THOUGHT THAT THE PETITIONERS HAVING PROVED
DIVULGENCE BY FEDERAL OFFICERS OF THE MESSAGES TO THE WITNESSES, THE
BURDEN WAS UPON THE GOVERNMENT TO PROVE THAT THEIR TESTIMONY WAS NOT
INDUCED THEREBY; THAT THE TRIAL JUDGE FAILED TO FIND THE WIRE TAPPING
HAD NOT BEEN A MEANS OF INDUCING THEM TO TESTIFY, BUT FOUND ONLY THAT
THE PETITIONERS HAD FAILED TO PROVE IT HAD BEEN THE MEANS.  IN THIS
SITUATION THE COURT WAS OF OPINION THAT IF THE ADMISSION OF TESTIMONY
INDUCED BY USE OF THE MESSAGES WAS PROHIBITED BY THE COMMUNICATIONS
ACT, THE JUDGMENTS SHOULD BE REVERSED.  THE COURT RULED, HOWEVER, THAT,
AS THE PETITIONERS WERE NOT PARTIES TO ANY OF THE INTERCEPTED
COMMUNICATIONS, THEY HAD NO STANDING TO OBJECT TO THEIR DIVULGENCE.  IN
THE ALTERNATIVE, IT RULED THAT THE TESTIMONY WAS NOT A DIVULGENCE
WITHIN THE MEANING OF SEC. 605, BUT, AT MOST, THE PRESENTATION IN COURT
OF EVIDENCE PROCURED THROUGH PAST DIVULGENCES.  THE COURT ALSO
OVERRULED PETITIONERS' CONTENTIONS THAT THEY HAD BEEN DENIED THEIR FULL
RIGHT OF CROSS-EXAMINATION AT THE PRELIMINARY HEARING AND THAT THE
CHARGE TO THE JURY WAS IMPROPER. 

WE HAVE CONSIDERED ALL THE ASSIGNMENTS OF ERROR BUT FIND NO SUBSTANCE
IN ANY OF THEM SAVE THOSE WHICH GO TO THE ADMISSION OF MESSMAN'S AND
GARROW'S TESTIMONY.  IN BRIEFS AND ORAL ARGUMENT, THE PARTIES HAVE
LABORED THE SUBJECT OF THE BURDEN OF PROOF AT THE PRELIMINARY HEARING. 
THE PETITIONERS SAY IT LAY WITH THE GOVERNMENT AFTER A SHOWING OF WIRE
TAPPING AND DIVULGENCE; THE RESPONDENT SAYS IT LAY WITH THE PETITIONERS
THROUGHOUT.  EACH ASSERTS THE OTHER FAILED TO CARRY IT.  IN OUR VIEW, A
DECISION UPON THE POINT IS UNNECESSARY. 

WE COME TO THE CAPITAL AND PIVOTAL QUESTION:  ASSUMING THE WITNESSES'
TESTIMONY WAS INDUCED BY DIVULGING TO THEM THE CONTENTS OF INTERCEPTED
TELEPHONE MESSAGES, WAS THE ADMISSION OF THIS TESTIMONY ERRONEOUS?  WE
HOLD THAT IT WAS NOT. 

THE PETITIONERS ASSERT THAT SEC. 605 OF THE FEDERAL COMMUNICATIONS
ACT FORBIDS THE ADMISSION OF EVIDENCE OBTAINED BY THE USE IN ADVANCE OF
THE TRIAL OF UNLAWFULLY INTERCEPTED TELEPHONE CONVERSATIONS, AND THAT
ONE WHO WAS NOT A PARTY TO SUCH COMMUNICATIONS HAS STANDING TO OBJECT
TO THE ADMISSION OF SUCH EVIDENCE.  THEY INSIST THAT THE DECISIONS OF
THIS COURT IN WEISS V. UNITED STATES, 308 U.S. 321, AND NARDONE V.
UNITED STATES, 308 U.S. 338, REQUIRE US SO TO HOLD AND THAT THE COURT
BELOW, IN RULING TO THE CONTRARY, FAILED TO FOLLOW THOSE DECISIONS. 

IT MAY BE HELPFUL IN THE CONSIDERATION OF THESE CONTENTIONS TO QUOTE
THE RELEVANT PORTIONS OF THE STATUTE AND TO RECAPITULATE THIS COURT'S
DECISIONS IN CASES INVOLVING THE ADMISSION OF EVIDENCE IN ALLEGED
VIOLATION OF ITS TERMS.  THE RELEVANT PROVISIONS OF THE SECTION DECLARE
THAT " ...  NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL
INTERCEPT ANY COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE,
CONTENTS, SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED
COMMUNICATION TO ANY PERSON," AND THAT "NO PERSON HAVING RECEIVED SUCH
INTERCEPTED COMMUNICATION OR HAVING BECOME ACQUAINTED WITH THE
CONTENTS, SUBSTANCE, PURPORT, EFFECT, OR MEANING OF THE SAME OR ANY
PART THEREOF, KNOWING THAT SUCH INFORMATION WAS SO OBTAINED, SHALL
DIVULGE OR PUBLISH THE EXISTENCE, CONTENTS, SUBSTANCE, PURPORT, EFFECT,
OR MEANING OF THE SAME OR ANY PART THEREOF, OR USE THE SAME OR ANY
INFORMATION THEREIN CONTAINED FOR HIS OWN BENEFIT OR FOR THE BENEFIT OF
ANOTHER NOT ENTITLED THERETO.  ...  " 

IN NARDONE V. UNITED STATES, 302 U.S. 379, WE HELD THAT THE
GOVERNMENT'S INTRODUCTION OF TRANSCRIPTS AND RECORDINGS OF INTERCEPTED
INTERSTATE MESSAGES IN THE TRIAL OF A CRIMINAL CASE CONSTITUTED A
DIVULGENCE OF SUCH MESSAGES CONTRARY TO THE EXPRESS TERMS OF THE
STATUTE. 

IN WEISS V. UNITED STATES, 308 U.S. 321, INTRASTATE TELEPHONE
COMMUNICATIONS WERE INTERCEPTED BY FEDERAL AGENTS, THEIR CONTENTS WERE
DIVULGED TO CERTAIN OF THE DEFENDANTS, AND, AS A RESULT, THESE
DEFENDANTS CONFESSED AND AGREED TO TURN STATE'S EVIDENCE.  THEY WERE
PERMITTED TO TESTIFY TO THE CONTENTS OF THE MESSAGES.  WE HELD THAT THE
INTERDICTION OF THE STATUTE EXTENDED TO THE INTERCEPTION AND DIVULGENCE
OF INTRASTATE AS WELL AS INTERSTATE MESSAGES.  IN THE LIGHT OF THE
FACTS WE DENIED THE GOVERNMENT'S CLAIM THAT THE WITNESSES' TESTIFYING
TO THE CONTENTS OF THE MESSAGES AMOUNTED TO AN AUTHORIZATION BY THEM,
AS SENDERS, OF THE DIVULGENCE OF THE COMMUNICATIONS WITHIN THE MEANING
OF THE STATUTE. 

IN NARDONE V. UNITED STATES, 308 U.S. 338, IT WAS CLAIMED THAT
UNLAWFULLY INTERCEPTED MESSAGES HAD BEEN USED TO OBTAIN EVIDENCE
AGAINST THE SENDERS, AND THAT SUCH USE, AND THE INTRODUCTION OF THE
EVIDENCE SO OBTAINED, OVER THE OBJECTION OF THE SENDERS, WHO WERE
DEFENDANTS, CONSTITUTED A VIOLATION OF THE PURPOSE AND POLICY OF THE
STATUTE.  WE HELD THAT, IF THE FACTS SUSTAINED THE CLAIM, THE EVIDENCE
SHOULD HAVE BEEN EXCLUDED, AND WE FORMULATED A PROCEDURE FOR
ASCERTAINING THE FACTS. 

IN NONE OF THESE CASES DID THIS COURT PASS UPON THE QUESTION NOW
PRESENTED.  IN THE INSTANT CASE, THE WITNESSES WHO CONFESSED AND TURNED
STATE'S EVIDENCE DID NOT TESTIFY EITHER TO THE EXISTENCE OF THE
COMMUNICATIONS OR TO THEIR CONTENTS.  THE CONTENTS OF MESSAGES TO SOME
OF WHICH THEY WERE PARTIES, BUT TO WHICH THE PETITIONERS WERE NOT
PARTIES, WERE USED BY THE GOVERNMENT, AS WE ASSUME, TO PERSUADE THE
WITNESSES TO TESTIFY.  WE FURTHER ASSUME THAT THE INTERCEPTION AND
DIVULGENCE OF THE MESSAGES TO THESE WITNESSES WAS UNLAWFUL BECAUSE NOT
AUTHORIZED BY THE SENDER. 

THE PETITIONERS URGE THAT OUR DECISION IN WEISS V. UNITED STATES,
SUPRA, NECESSARILY INVOLVED THE RULING THAT ONE WHO WAS NOT A PARTY TO
THE INTERCEPTED MESSAGES HAS STANDING TO OBJECT TO THEIR DIVULGENCE AT
THE TRIAL, AND, IN VIEW OF OUR APPLICATION OF THE STATUTE IN NARDONE V.
UNITED STATES, 308 U.S. 338, HE HAS STANDING TO OBJECT TO TESTIMONY
INDUCED AS A RESULT OF UNLAWFUL INTERCEPTION AND USE OF THE MESSAGES. 

THE QUESTION NOW PRESENTED WAS NOT DECIDED IN WEISS V. UNITED STATES,
SUPRA.  THE CHARGE WAS CONSPIRACY.  GOLDSTEIN, WHO WAS NOT A
PARTICIPANT, AND OTHER DEFENDANTS, WHO WERE PARTICIPANTS, IN THE
INTERCEPTED CONVERSATIONS, WERE TRIED TOGETHER.  ALL OBJECTED TO
TESTIMONY RESPECTING THE CONVERSATIONS.  WE HELD THE EVIDENCE
INADMISSIBLE.  THE FACT THAT GOLDSTEIN WAS NOT A PARTY TO THE
COMMUNICATIONS WAS NOT OVERLOOKED.  IN THE OPINION RENDERED BY THE
CIRCUIT COURT OF APPEALS IT WAS HELD THAT THE FACT COULD NOT SUSTAIN
HIS CONVICTION IF THE MESSAGES WERE ERRONEOUSLY INTRODUCED.  FN6  THIS
COURT ASSUMED, IN DECIDING THE CASE, THAT THE CIRCUIT COURT OF APPEALS
WAS RIGHT IN HOLDING THAT, IF THE ADMISSION OF THE EVIDENCE WAS WRONG
AS TO THE OTHER DEFENDANTS, THE JUDGMENT OUGHT TO BE REVERSED AS TO
ALL.  AND THE CIRCUIT COURT OF APPEALS WAS OF OPINION IN THE PRESENT
CASE THAT, IN THE CIRCUMSTANCES, THE MESSAGES COULD NOT HAVE BEEN USED
IN THE WEISS CASE AGAINST ONE OF THE DEFENDANTS AND EXCLUDED AS TO THE
OTHERS, WITH ANY REASONABLE EXPECTATION THAT PREJUDICE WOULD NOT HAVE
RESULTED TO THE DEFENDANTS AS TO WHOM THE ADMISSION OF THE MESSAGES
WOULD HAVE BEEN ERROR.  FN7  IN THIS VIEW WE CONCUR. 

NONE OF THE PETITIONERS WAS A PARTY TO THE COMMUNICATIONS USED IN
OBTAINING THE EVIDENCE IN THIS CASE.  NO PREJUDICE, THEREFORE, COULD
RESULT BY REASON OF THE DIFFICULTY OF NULLIFYING THE EFFECT UPON SOME
DEFENDANTS OF EVIDENCE INCOMPETENT AS TO THEM BUT COMPETENT AS AGAINST
OTHER DEFENDANTS. 

IT HAS LONG BEEN SETTLED THAT EVIDENCE OBTAINED IN VIOLATION OF THE
PROHIBITION OF THE FOURTH AMENDMENT CANNOT BE USED IN A PROSECUTION
AGAINST THE VICTIM OF THE UNLAWFUL SEARCH AND SEIZURE IF HE MAKES
TIMELY OBJECTION.  FN8  THIS, FOR THE REASON THAT OTHERWISE THE POLICY
AND PURPOSE OF THE AMENDMENT MIGHT BE THWARTED.  AND WE HAVE FURTHER
HELD THAT THE POLICY UNDERLYING THE AMENDMENT CANNOT BE CIRCUMVENTED BY
THE INDIRECT USE AGAINST THE VICTIM OF EVIDENCE SO OBTAINED.  FN9 

ALTHOUGH THE UNLAWFUL INTERCEPTION OF A TELEPHONE COMMUNICATION DOES
NOT AMOUNT TO A SEARCH OR SEIZURE PROHIBITED BY THE FOURTH AMENDMENT,
FN10  WE HAVE APPLIED THE SAME POLICY IN RESPECT OF THE PROHIBITIONS OF
THE FEDERAL COMMUNICATIONS ACT AT THE INSTANCE OF THE SENDER OF THE
MESSAGE AGAINST WHOM EVIDENCE DERIVED FROM ITS UNLAWFUL INTERCEPTION IS
SOUGHT TO BE INTRODUCED.  NARDONE V. UNITED STATES, 308 U.S. 338. 

THE QUESTION NOW TO BE DECIDED IS WHETHER WE SHALL EXTEND THE
SANCTION FOR VIOLATION OF THE COMMUNICATIONS ACT SO AS TO MAKE
AVAILABLE TO ONE NOT A PARTY TO THE INTERCEPTED COMMUNICATION THE
OBJECTION THAT ITS USE OUTSIDE THE COURTROOM, AND PRIOR TO THE TRIAL,
INDUCED EVIDENCE WHICH, EXCEPT FOR THAT USE, WOULD BE ADMISSIBLE. 

NO COURT HAS EVER GONE SO FAR IN APPLYING THE IMPLIED SANCTION FOR
VIOLATION OF THE FOURTH AMENDMENT.  WHILE THIS COURT HAS NEVER BEEN
CALLED UPON TO DECIDE THE POINT,  FN11  THE FEDERAL COURTS IN NUMEROUS
CASES, AND WITH UNANIMITY, HAVE DENIED STANDING TO ONE NOT THE VICTIM
OF AN UNCONSTITUTIONAL SEARCH AND SEIZURE TO OBJECT TO THE INTRODUCTION
IN EVIDENCE OF THAT WHICH WAS SEIZED.  FN12  A FORTIORI THE SAME RULE
SHOULD APPLY TO THE INTRODUCTION OF EVIDENCE INDUCED BY THE USE OR
DISCLOSURE THEREOF TO A WITNESS OTHER THAN THE VICTIM OF THE SEIZURE. 
WE THINK NO BROADER SANCTION SHOULD BE IMPOSED UPON THE GOVERNMENT IN
RESPECT OF VIOLATIONS OF THE COMMUNICATIONS ACT.  THE COURT BELOW WAS
OF THE VIEW THAT A DIVULGENCE OF THE INTERCEPTED MESSAGES MIGHT
LAWFULLY BE MADE WITH THE CONSENT OF THE SENDER, AND WE AGREE.  THE
COURT FURTHER THOUGHT THAT, AS THE SENDER MIGHT MAKE SUCH DIVULGENCE
LAWFUL BY HIS CONSENT, NONE BUT HE WAS INTENDED TO BE PROTECTED AGAINST
DIVULGENCE BY THE STATUTE.  FN13  AGAIN WE AGREE. 

THE PETITIONERS, HOWEVER, POINT OUT THAT THE STATUTE ALSO FORBIDS THE
USE OF AN UNLAWFULLY INTERCEPTED MESSAGE, OR ANY INFORMATION THEREIN
CONTAINED, BY ANY PERSON FOR HIS OWN BENEFIT OR THE BENEFIT OF ANOTHER
NOT ENTITLED THERETO; AND THEY SAY THAT THE GOVERNMENT OFFICIALS
VIOLATED THE ACT BY USING THE MESSAGES, AND THE INFORMATION THEY
CONTAINED, TO INDUCE THE SENDERS' CONFESSIONS AND TESTIMONY.  THEY URGE
THAT SUCH USE IS FORBIDDEN BY THE ACT AND THAT THEY HAVE STANDING TO
OBJECT TO THE INTRODUCTION OF THE EVIDENCE THUS OBTAINED.  THE
GOVERNMENT ANSWERS THAT THIS PROVISION OF THE ACT WAS NOT INTENDED TO
REACH THE USE OF THE CONTENTS OF THE MESSAGES BY FEDERAL OFFICERS FOR
OBTAINING EVIDENCE, BUT WAS MEANT TO PREVENT USE FOR THE PERSONAL
ADVANTAGE OR BENEFIT OF THE USER.  WE HAVE NO OCCASION TO DETERMINE THE
SOUNDNESS OF THE GOVERNMENT'S ARGUMENT.    WE ARE OF OPINION THAT, EVEN
THOUGH THE USE MADE OF THE COMMUNICATIONS BY THE PROSECUTING OFFICERS
TO INDUCE THE PARTIES TO THEM TO TESTIFY WERE HELD A VIOLATION OF THE
STATUTE, THIS WOULD NOT RENDER THE TESTIMONY SO PROCURED INADMISSIBLE
AGAINST A PERSON NOT A PARTY TO THE MESSAGE.  THIS IS THE SETTLED
COMMON LAW RULE.  FN14  THERE WAS NO USE AT THE TRIAL OF THE
INTERCEPTED COMMUNICATIONS, OR OF ANY INFORMATION THEY CONTAINED AS
SUCH.  IF SUCH USE AS OCCURRED HERE IS A VIOLATION OF THE ACT, THE
STATUTE ITSELF IMPOSES A SANCTION.  FN15    THE JUDGMENTS ARE
AFFIRMED. 

FN1  ACT OF JUNE 19, 1934, C. 652, 48 STAT. 1064, 1103; 47 U.S.C.
SEC. 605. 

FN2  CRIMINAL CODE SEC. 215; 18 U.S.C. SEC. 338. 

FN3  CRIMINAL CODE SEC. 37; 18 U.S.C. SEC. 88. 

FN4  IT IS SAID THAT PETITIONERS HAVE NOW DISCOVERED THAT GOLDSTEIN
WAS A PARTICIPANT IN TWELVE OF THE INTERCEPTED TELEPHONE CONVERSATIONS,
BUT IT IS ADMITTED THAT THE RECORD DOES NOT DISCLOSE THIS FACT, AND
THERE IS NO ALLEGATION THAT ANY OF THE TWELVE COMMUNICATIONS WERE USED
IN OBTAINING THE CONFESSIONS. 

FN5  120 F.2D 485. 

FN6  "IT MAY BE SAID WITH SOME PLAUSIBILITY THAT THE DEFENDANT
GOLDSTEIN WAS NOT PREJUDICED SINCE HE WAS NEITHER A PARTY TO, NOR
MENTIONED IN, THE CONVERSATIONS OBTAINED THROUGH WIRE TAPPING.  THESE
CONVERSATIONS, HOWEVER, SHOWED THAT GOLDSTEIN'S CODEFENDANTS WERE
ENGAGED IN A CONSPIRACY WHICH OTHER PROOF INDICATED THAT HE JOINED. 
THEY ALSO GAVE CREDENCE TO THE TESTIMONY OF MESSMAN.  SUCH EVIDENCE
WEIGHED AGAINST GOLDSTEIN AND HIS CONVICTION OUGHT NOT TO STAND IF THE
COMMUNICATIONS IMPLICATING THE OTHERS WERE IMPROPERLY RECEIVED."  103
F.2D 352.  SEE ALSO UNITED STATES V. THOMSON, 113 F.2D 643. 

FN7  120 F.2D 489. 

FN8  WEEKS V. UNITED STATES, 232 U.S. 383. 

FN9  SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385. 

FN10  OLMSTEAD V. UNITED STATES, 277 U.S. 438; GOLDMAN V. UNITED
STATES, POST, P. 129. 

FN11  THE PRIVILEGE AGAINST SELF-INCRIMINATION AFFORDED BY THE FIFTH
AMENDMENT IS PERSONAL TO THE WITNESS.  HALE V. HENKEL, 201 U.S. 43;
WILSON V. UNITED STATES, 221 U.S. 361. 

FN12  THE PRINCIPLE HAS BEEN APPLIED IN AT LEAST FIFTY CASES BY THE
CIRCUIT COURTS OF APPEALS IN NINE CIRCUITS, AND IN THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA, NOT TO MENTION MANY DECISIONS BY DISTRICT
COURTS.  MANY OF THE CASES ARE COLLECTED IN NOTE 168 TO THE TEXT OF THE
FOURTH AMENDMENT IN THE U.S.C. ANNOTATED. 

FN13  IT HAS BEEN HELD THAT BOTH PARTIES TO A TELEPHONE CONVERSATION
ARE SENDERS, AS THE STATUTE USES THE TERM.  UNITED STATES V. POLAKOFF,
112 F.2D 888. 

FN14  OLMSTEAD V. UNITED STATES, 277 U.S. 438, 466, 467. 

FN15  SEC. 501, 47 U.S.C. SEC. 501. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MURPHY, DISSENTING: 

THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER, AND I CANNOT AGREE WITH
THE OPINION OF THE COURT. 

MESSMAN AND GARROW WERE THE CHIEF WITNESSES FOR THE GOVERNMENT, AND
THE TESTIMONY OF EACH WAS VITAL.  IT IS NOT DISPUTED THAT MESSMAN
TURNED STATE'S EVIDENCE AFTER HE WAS CONFRONTED WITH THE CONTENTS OF
TELEPHONE MESSAGES WHICH IMPLICATED HIM IN THE OFFENSE, BUT WHICH HAD
BEEN OBTAINED BY WIRE-TAPPING IN VIOLATION OF SEC. 605 OF THE FEDERAL
COMMUNICATIONS ACT.  THE EXTENT OF THE UNLAWFUL "TAPPING" AND THE KEEN
DESIRE OF THE GOVERNMENT OFFICIALS TO USE THE "TAPS" TO SECURE OTHER
TESTIMONY ARE GRAPHICALLY ILLUSTRATED BY THE FOLLOWING STATEMENT MADE
BY AN ASSISTANT UNITED STATES ATTORNEY TO MESSMAN AFTER HIS ARREST: 

"I AM TELLING YOU BEFORE WE GO ANY FURTHER THAT THERE IS NO USE OF US
KIDDING EACH OTHER.  WE HAVE WATCHED YOUR TELEPHONE; WE HAVE WATCHED
ALL THESE LAWYERS' TELEPHONES; WE HAVE HAD ROOMS TAPPED.  WE KNOW WHAT
IS GOING ON.  WE ARE NOT STABBING IN THE DARK.  IF YOU WANT TO HEAR
YOUR VOICE ON A RECORD WE WILL BE GLAD TO PLAY IT.  IN YOUR INSTANCE,
DOCTOR, THERE IS SO MUCH TO COVER.  YOU HAVE BEEN IN THIS FOR SO MANY
YEARS THAT WE FEEL THAT IN ORDER FOR YOU TO HELP YOURSELF, SINCE YOU
ARE CONSIDERED ONE OF THE PRINCIPALS HERE, IT WOULD BE WISE FOR YOU TO
INDICATE TO US WHETHER YOU INTEND TO TELL US EVERYTHING AND COME CLEAN,
OR WHETHER YOU INTEND TO PLAY BALL WITH THE GARROWS AND THE REST OF THE
CROWD.  WE FEEL THAT YOU CAN BE OF GREAT VALUE AND YOU WANT TO HELP
YOURSELF.  THAT IS STRAIGHT TALK." 

AND GARROW KNEW OF THE EXISTENCE OF RECORDS OF DAMAGING CONVERSATIONS
MADE BY ILLEGAL "TAPS" ON HIS LINES BEFORE HIS DECISION TO TESTIFY FOR
THE GOVERNMENT. 

NEITHER THE INTERCEPTED MESSAGES NOR THEIR PURPORT WERE PLACED IN
EVIDENCE, AND, SO FAR AS THE RECORD SHOWS, PETITIONERS WERE NOT PARTIES
TO THEM.  IT IS EVIDENT, NEVERTHELESS, THAT THE EVIDENCE ADDUCED BY THE
GOVERNMENT AGAINST PETITIONERS THROUGH THE TESTIMONY OF MESSMAN AND
GARROW WAS OBTAINED BY THE USE OF INFORMATION GATHERED BY WIRE-TAPPING
IN VIOLATION OF LAW.  FN1 

THE MAIN QUESTION PRESENTED FOR DECISION IS WHETHER EVIDENCE SO
OBTAINED IS VITIATED AND RENDERED INADMISSIBLE BY SEC. 605, THE
RELEVANT PART OF WHICH READS:  "  ...  AND NO PERSON NOT BEING
AUTHORIZED BY THE SENDER SHALL INTERCEPT ANY COMMUNICATION AND DIVULGE
OR PUBLISH THE EXISTENCE, CONTENTS, SUBSTANCE, PURPORT, EFFECT, OR
MEANING OF SUCH INTERCEPTED COMMUNICATION TO ANY PERSON; ...  AND NO
PERSON HAVING RECEIVED SUCH INTERCEPTED COMMUNICATION OR HAVING BECOME
ACQUAINTED WITH THE CONTENTS, SUBSTANCE, PURPORT, EFFECT, OR MEANING OF
THE SAME OR ANY PART THEREOF, KNOWING THAT SUCH INFORMATION WAS SO
OBTAINED, SHALL DIVULGE OR PUBLISH THE EXISTENCE, CONTENTS, SUBSTANCE,
PURPORT, EFFECT, OR MEANING OF THE SAME OR ANY PART THEREOF, OR USE THE
SAME OR ANY INFORMATION THEREIN CONTAINED FOR HIS OWN BENEFIT OR FOR
THE BENEFIT OF ANOTHER NOT ENTITLED THERETO  ..." 

THE STATUTE EXPRESSES A RULE OF PUBLIC POLICY.  IN ENACTING SEC. 605,
CONGRESS SOUGHT TO PROTECT SOCIETY AT LARGE AGAINST THE EVILS OF WIRE
TAPPING AND KINDRED UNAUTHORIZED INTRUSIONS INTO PRIVATE INTERCOURSE
CONDUCTED BY MEANS OF THE MODERN MEDIA OF COMMUNICATION, TELEPHONE,
TELEGRAPH, AND RADIO.  TO THAT END THE STATUTE PROHIBITS NOT ONLY THE
INTERCEPTION AND THE DIVULGENCE OF PRIVATE MESSAGES WITHOUT THE CONSENT
OF THE SENDER, BUT ALSO THE USE OF INFORMATION SO ACQUIRED BY ANY
PERSON NOT ENTITLED TO IT.  THE PROTECTION OF THE STATUTE WOULD HAVE
BEEN ILLUSORY INDEED IF, WHILE INTERCEPTION AND DIVULGENCE WERE
PENALIZED, ONE WAS FREE, NEVERTHELESS, TO USE INFORMATION SO OBTAINED. 
UNLESS THE LANGUAGE OF THE "USE FOR BENEFIT" PROHIBITION DOES NOT MEAN
WHAT IT SAYS, THE ACTIONS OF THE GOVERNMENT AGENTS IN SECURING THE
BENEFIT OF THE CRUCIAL TESTIMONY OF MESSMAN AND GARROW BY THE USE OF
ILLEGAL "TAPS" WERE CLEAR VIOLATIONS OF THAT PROHIBITION.  THERE IS NO
MERIT IN THE GOVERNMENT'S CONTENTION THAT THE UNEQUIVOCAL LANGUAGE OF
THE "USE FOR BENEFIT" CLAUSE SHOULD BE CONSTRUED AS CONDEMNING ONLY
SUCH USES AS ARE DESIGNED TO RESULT IN SOME MONETARY OR OTHER SIMILAR
BENEFIT OF A PRIVATE NATURE, FOR THE PROHIBITIONS OF SEC. 605 ARE
APPLICABLE TO THE GOVERNMENT AND ITS OFFICERS, AS WELL AS TO PRIVATE
PERSONS.  NARDONE V. UNITED STATES, 302 U.S. 379.  THE PROHIBITION IN
THIS LAST CLAUSE OF SEC. 605 BY CONGRESS OF THE "USE" OF OUTLAWED
EVIDENCE IS SO UNEQUIVOCAL AND CONTROLLING THAT THE FAILURE OF THE
COURT BELOW EVEN TO REFER TO THIS CLAUSE CAN ONLY BE EXPLAINED ON THE
ASSUMPTION THAT IT WAS OVERLOOKED. 

ON THE ISSUE OF ADMISSIBILITY, THE SECOND NARDONE CASE, 308 U.S. 338,
THE LOGICAL EXTENSION OF THE PRINCIPLES OF NARDONE V. UNITED STATES,
302 U.S. 379, AND WEISS V. UNITED STATES, 308 U.S. 321, SHOULD CONTROL
OUR DECISION.  IN THAT CASE, AS IN THIS, THE EVIDENCE IN DISPUTE WAS
NOT THE MESSAGES THEMSELVES OR THEIR PURPORT, BUT THE CLAIM WAS MADE
THAT OTHER EVIDENCE AGAINST THE DEFENDANTS WAS OBTAINED BY THE USE OF
INFORMATION GAINED BY UNLAWFUL WIRE-TAPPING.  WE HELD THAT THE POLICY
OF SEC. 605 REQUIRED THE EXCLUSION NOT MERELY OF THE INTERCEPTED
MESSAGES BUT ALSO OF THE OTHER EVIDENCE ACQUIRED THROUGH THEIR UNLAWFUL
USE.  OTHERWISE THE BROAD PURPOSE OF THE STATUTE TO OUTLAW PRACTICES
"INCONSISTENT WITH ETHICAL STANDARDS AND DESTRUCTIVE OF PERSONAL
LIBERTY"  FN3  WOULD HAVE BEEN LARGELY DEFEATED.  WE ALSO SUGGESTED THE
PRELIMINARY HEARING AS A PROCEDURE FOR DETERMINING WHAT EVIDENCE WAS
THE "FRUIT OF THE POISONOUS TREE" AND HENCE INADMISSIBLE.  SINCE THE
PRELIMINARY HEARING IN THIS CASE LEAVES NO DOUBT THAT THE TESTIMONY OF
MESSMAN AND GARROW WAS THE FORBIDDEN FRUIT, IT SHOULD NOT HAVE BEEN
ADMITTED. 

THE ONLY POSSIBLE DIFFERENTIATION BETWEEN THIS CASE AND THE SECOND
NARDONE CASE IS THAT, HERE, PETITIONERS WERE NOT PARTIES TO THE
ILLEGALLY INTERCEPTED MESSAGES, BUT THAT CALLS FOR NO DIFFERENCE IN
LEGAL RESULT.  WHILE THE SENDER CAN RENDER INTERCEPTION, DIVULGENCE, OR
USE LAWFUL BY HIS CONSENT, IT IS A COMPLETE NON SEQUITUR TO CONCLUDE
THAT HE ALONE HAS STANDING TO OBJECT TO THE ADMISSION OF EVIDENCE
OBTAINED IN VIOLATION OF SEC. 605.  TO SAY THAT PETITIONERS HAVE NO
STANDING TO OBJECT TO THE TESTIMONY OF MESSMAN AND GARROW BECAUSE THEY
WERE NOT PARTIES TO THE INTERCEPTED MESSAGES USED TO SECURE THAT
TESTIMONY, IS TO IGNORE THE GOVERNING FACTOR THAT CONTROLLED OUR
DECISION IN THE SECOND NARDONE CASE, NAMELY, THAT TO PERMIT THE USE OF
EVIDENCE SO OBTAINED WOULD DEFEAT OR SUBSTANTIALLY IMPAIR THE
UNDERLYING POLICY AND PURPOSE OF SEC. 605.  IT IS IMMATERIAL, FOR THE
OBJECT TO BE SERVED BY THAT SECTION, WHETHER OBJECTION IS MADE BY THE
ONE SENDING THE COMMUNICATION OR BY ANOTHER WHO IS PREJUDICED BY ITS
USE.  THE RULE THAT EVIDENCE OBTAINED BY A VIOLATION OF SEC. 605 IS
INADMISSIBLE IS NOT A REMEDY FOR THE SENDER; IT IS THE OBEDIENT ANSWER
TO THE CONGRESSIONAL COMMAND THAT SOCIETY SHALL NOT BE PLAGUED WITH
SUCH PRACTICES AS WIRE-TAPPING. 

LOWER FEDERAL COURT CASES TO THE EFFECT THAT ONLY THE VICTIM OF A
SEARCH AND SEIZURE CONTRAVENING THE FOURTH AMENDMENT CAN OBJECT TO THE
EVIDENCE THEREBY OBTAINED DO NOT OFFER A PROPER ANALOGY.  NOT ONLY ARE
THOSE DECISIONS HARD TO SQUARE WITH STATEMENTS BY MR. JUSTICE HOLMES IN
SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385, 392,  FN4  BUT,
EVEN ASSUMING THEIR SOUNDNESS, SUFFICIENT DIFFERENCE IN SCOPE EXISTS
BETWEEN SEC. 605 AND THE FOURTH AMENDMENT TO RENDER ANALOGY UNSAFE. 
THUS SEC. 605 FORBIDS ALL INTERCEPTION, DIVULGENCE, OR USE BY ANY
PERSON WITHOUT THE CONSENT OF THE SENDER, WHILE THE FOURTH AMENDMENT
BANS ONLY UNREASONABLE SEARCHES AND SEIZURES. 

THE HOLDING IN THE OPINION OF THE COURT THAT EVIDENCE OBTAINED IN
VIOLATION OF SEC. 605 IS NOT RENDERED INADMISSIBLE BECAUSE SEC. 501 OF
THE ACT PROVIDES SPECIFIC SANCTIONS FOR VIOLATIONS OF SEC. 605, IS A
DIRECT REPUDIATION OF BOTH NARDONE CASES AND THE WEISS CASE.  IN EACH
OF THOSE CASES, EVIDENCE SECURED BY VIOLATION OF SEC. 605 WAS DECLARED
TO BE INADMISSIBLE, DESPITE THE EXISTENCE OF SEC. 501.  THIS IS SO
BECAUSE, AS WE HELD IN THE FIRST NARDONE CASE, "THE ACT FORBIDS SUCH
TESTIMONY."  302 U.S. 379, 382.  THAT EVIDENCE PROCURED IN VIOLATION OF
FEDERAL LAW BY AGENTS OF THE GOVERNMENT IS INADMISSIBLE IN FEDERAL
PROSECUTIONS HAS BEEN ESTABLISHED AND ENFORCED BY AN UNBROKEN SERIES OF
DECISIONS IN THIS COURT BEGINNING WITH WEEKS V. UNITED STATES, 232 U.S.
383.  BY THESE DECISIONS THIS COURT HAS REFUSED TO MAKE ITSELF A
PARTICIPANT IN LAWLESS CONDUCT BY SANCTIONING THE USE IN OPEN COURT OF
EVIDENCE ILLEGALLY SECURED.  THAT PRINCIPLE WAS FORCIBLY PUT IN A
SEPARATE OPINION IN SORRELLS V. UNITED STATES, 287 U.S. 435, 453. 
AFTER REFERRING TO "THE INHERENT RIGHT OF THE COURT NOT TO BE MADE THE
INSTRUMENT OF WRONG," THE OPINION CONTINUES:  "THE DOCTRINE (THE
DEFENSE OF ENTRAPMENT) RESTS, RATHER, ON A FUNDAMENTAL RULE OF PUBLIC
POLICY.  THE PROTECTION OF ITS OWN FUNCTIONS AND THE PRESERVATION OF
THE PURITY OF ITS OWN TEMPLE BELONGS ONLY TO THE COURT.  IT IS THE
PROVINCE OF THE COURT AND OF THE COURT ALONE TO PROTECT ITSELF AND THE
GOVERNMENT FROM SUCH PROSTITUTION OF THE CRIMINAL LAW."  287 U.S. 435,
456, 457.  WHEN CONGRESS CONDEMNED THE "USE" OF LAWLESSLY INTERCEPTED
COMMUNICATIONS, THE LAST THING IT INTENDED TO SANCTION WAS THE USE OF
SUCH INTERCEPTIONS IN A COURT OF JUSTICE.  THERE CAN BE NO REASON TO
IGNORE OR SILENTLY OVERRULE OUR CONSIDERED DECISIONS IN BOTH NARDONE
CASES AND THE WEISS CASE, ESPECIALLY IN VIEW OF THE FACT THAT CONGRESS
HAS HAD SEVERAL OPPORTUNITIES SINCE THE FIRST NARDONE CASE TO AMEND
SEC. 605 TO OBVIATE THE RESULT OF THAT CASE IF IT WERE NOT A TRUE
INTERPRETATION OF CONGRESSIONAL POLICY AND INTENT.  FN5 

FN1  BOTH MESSMAN AND GARROW TESTIFIED AT THE PRELIMINARY HEARING
THAT THE "TAPS" DID NOT INFLUENCE THEIR DECISIONS TO TESTIFY FOR THE
GOVERNMENT, BUT EACH WAS AN ACCOMPLISHED PERJURER.  WE DO NOT
UNDERSTAND THAT THE TRIAL JUDGE, IN RULING THAT THE TESTIMONY OF
MESSMAN AND GARROW WAS ADMISSIBLE, MEANT TO FIND THAT THE GOVERNMENT
PROVED THAT THE "TAPS" DID NOT CONTRIBUTE TO THEIR BREAKDOWN.  ON THE
CONTRARY, IT IS CLEAR THAT HE MEANT TO FIND ONLY THAT PETITIONERS
FAILED TO CARRY THE BURDEN OF PROVING THAT THE GOVERNMENT SECURED THE
TESTIMONY OF MESSMAN AND GARROW BY USE OF THE "TAPS," A BURDEN WHICH HE
ERRONEOUSLY PUT UPON PETITIONERS.  FOR AFTER AN ACCUSED SUSTAINS THE
INITIAL BURDEN, IMPOSED BY NARDONE V. UNITED STATES, 308 U.S. 338, OF
PROVING TO THE SATISFACTION OF THE TRIAL JUDGE IN THE PRELIMINARY
HEARING THAT WIRE-TAPPING WAS UNLAWFULLY EMPLOYED, AS PETITIONERS DID
HERE, IT IS ONLY FAIR THAT THE BURDEN SHOULD THEN SHIFT TO THE
GOVERNMENT TO CONVINCE THE TRIAL JUDGE THAT ITS PROOF HAD AN
INDEPENDENT ORIGIN.  AS THE COURT BELOW SAID:    "  ...  THIS SHOULD BE
THE RULE IN ANALOGY TO THE WELL SETTLED DOCTRINE IN CIVIL CASES THAT A
WRONGDOER WHO HAS MINGLED THE CONSEQUENCES OF LAWFUL AND UNLAWFUL
CONDUCT, HAS THE BURDEN OF DISENTANGLING THEM AND MUST BEAR THE
PREJUDICE OF HIS FAILURE TO DO SO; THAT IS, THAT IT IS UNFAIR TO THROW
UPON THE INNOCENT PARTY THE DUTY OF UNRAVELLING THE SKEIN WHICH THE
GUILTY PARTY HAS SNARLED.  TO IMPOSE THE DUTY UPON THE PROSECUTION IS
PARTICULARLY APPROPRIATE HERE, FOR IT NECESSARILY HAS FULL KNOWLEDGE OF
JUST HOW ITS CASE HAS BEEN PREPARED; GIVEN A PRIMA FACIE CASE AGAINST
IT, I.E., 'TAPS' AND SOME USE OF THEM, IT SHOULD DO THE REST."  120
F.2D 485, 488.  SINCE THE TRIAL JUDGE DID NOT SHIFT THE BURDEN TO THE
GOVERNMENT AFTER PETITIONERS' INITIAL SHOWING AS HE SHOULD HAVE DONE,
THERE CAN BE NO CONTENTION ON THIS RECORD THAT THE TESTIMONY OF MESSMAN
AND GARROW WAS UNTAINTED BY "TAPS." 

FN2  NARDONE V. UNITED STATES, 302 U.S. 379, 383. 

FN4  "THE ESSENCE OF A PROVISION FORBIDDING THE ACQUISITION OF
EVIDENCE IN A CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL
NOT BE USED BEFORE THE COURT BUT THAT IT SHALL NOT BE USED AT ALL.  ...
THE KNOWLEDGE GAINED BY THE GOVERNMENT'S OWN WRONG CANNOT BE USED BY
IT IN THE WAY PROPOSED." 

THE GUARANTIES OF THE FOURTH AMENDMENT "ARE TO BE LIBERALLY CONSTRUED
TO PREVENT IMPAIRMENT OF THE PROTECTION EXTENDED."  GRAU V. UNITED
STATES, 287 U.S. 124, 128, AND CASES CITED. 

IT IS EVIDENT THAT TO ALLOW THE GOVERNMENT TO USE EVIDENCE OBTAINED
IN VIOLATION OF THE FOURTH AMENDMENT AGAINST PARTIES NOT VICTIMS OF THE
UNCONSTITUTIONAL SEARCH AND SEIZURE IS TO ALLOW THE GOVERNMENT TO
PROFIT BY ITS WRONG AND TO REDUCE IN LARGE MEASURE THE PROTECTION OF
THE AMENDMENT. 

FN5  SEVERAL ATTEMPTS TO AMEND SEC. 605 SINCE THE FIRST NARDONE CASE
HAVE FAILED OF ENACTMENT.  SEE S. 3756, 75TH CONG., 3D SESS. (1938) AND
S. REP. NO. 1790, 75TH CONG., 3D SESS. (1938) P. 3.  SEE ALSO H.J. RES.
571, 76TH CONG., 3D SESS. (1940); H.R. 2266, 77TH CONG., 1ST SESS.
(1941); H.R. 3099, 77TH CONG., 1ST SESS. (1941); H.R. 4228, 77TH CONG.,
1ST SESS. (1941). 
..END :




















GOLDMAN V. UNITED STATES, 316 U.S. 129 


NO. 962, OCTOBER TERM, 1940.  ARGUED FEBRUARY 5, 6, 1942.  - DECIDED
APRIL 27, 1942.  - 118 F.2D 310, AFFIRMED. 


1.  REFUSAL OF THE JUDGE IN THE TRIAL OF A CRIMINAL CASE IN THE
FEDERAL COURT, TO ALLOW THE DEFENDANT TO INSPECT THE MEMORANDA OF
GOVERNMENT WITNESSES - WHERE THE MEMORANDA WERE NOT USED BY THE
WITNESSES IN COURT, BUT ONLY TO REFRESH THEIR RECOLLECTION PRIOR TO
TESTIFYING, AND WERE ALSO PART OF THE GOVERNMENT'S FILES - HELD NOT AN
ABUSE OF DISCRETION.  P. 132. 

2.  DIVULGENCE OF A PERSON'S TELEPHONE CONVERSATION, OVERHEARD AS IT
WAS SPOKEN INTO THE TELEPHONE RECEIVER, DOES NOT VIOLATE SEC. 605 OF
THE FEDERAL COMMUNICATIONS ACT, AS IN SUCH CASE THERE IS NEITHER A
"COMMUNICATION" NOR AN "INTERCEPTION" WITHIN THE MEANING OF THE ACT. 
P. 133. 

3.  EVIDENCE OBTAINED BY FEDERAL AGENTS BY USE OF A DETECTAPHONE,
APPLIED TO THE WALL OF A ROOM ADJOINING THE OFFICE OF THE DEFENDANT,
HELD NOT UNLAWFULLY OBTAINED AS A CONSEQUENCE OF A PRIOR TRESPASS
COMMITTED BY THE AGENTS IN THE DEFENDANT'S OFFICE, WHERE SUCH TRESPASS,
AS FOUND BY THE COURTS BELOW, DID NOT AID MATERIALLY IN THE USE OF THE
DETECTAPHONE.  P. 134. 

4.  THE USE BY FEDERAL AGENTS OF A DETECTAPHONE, WHEREBY
CONVERSATIONS IN THE OFFICE OF A DEFENDANT WERE OVERHEARD THROUGH
CONTACT ON THE WALL OF AN ADJOINING ROOM, DID NOT VIOLATE THE FOURTH
AMENDMENT, AND EVIDENCE THUS OBTAINED WAS ADMISSIBLE IN A FEDERAL
COURT.  P. 135. 

GOLDMAN V. UNITED STATES.* 

*TOGETHER WITH NO. 963, OCTOBER TERM, 1940, SHULMAN V. UNITED STATES,
AND NO. 980, OCTOBER TERM, 1940, THEODORE GOLDMAN V. UNITED STATES,
ALSO ON WRITS OF CERTIORARI, 314 U.S. 701, TO THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 314 U.S. 701, TO REVIEW THE AFFIRMANCE OF CONVICTIONS OF
CONSPIRACY TO VIOLATE THE BANKRUPTCY ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS AND ANOTHER WERE INDICTED FOR CONSPIRACY N1 TO
VIOLATE SEC. 29(B)(5) OF THE BANKRUPTCY ACT  FN2  BY RECEIVING, OR
ATTEMPTING TO OBTAIN, MONEY FOR ACTING, OR FORBEARING TO ACT, IN A
BANKRUPTCY PROCEEDING.  THEY WERE CONVICTED AND SENTENCED, AND THE
JUDGMENTS WERE AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  FN3  THE
FACTS ARE FULLY STATED IN THE OPINION BELOW AND WE SHALL ADVERT ONLY TO
THOSE ESSENTIAL TO AN UNDERSTANDING OF THE QUESTIONS OPEN IN THIS
COURT. 

THE PETITIONERS WERE LAWYERS.  ONE OF THEM, MARTIN GOLDMAN,
APPROACHED HOFFMAN, THE ATTORNEY REPRESENTING AN ASSIGNEE FOR THE
BENEFIT OF CREDITORS, WITH THE PROPOSITION THAT THE ASSIGNEE SELL THE
ASSETS IN BULK FOR AN OSTENSIBLE PRICE WHICH WOULD NET THE CREDITORS A
CERTAIN DIVIDEND, BUT IN FACT AT A SECRET GREATER PRICE, AND THAT
HOFFMAN AND THE PETITIONERS SHOULD DIVIDE THE DIFFERENCE BETWEEN THEM. 
HOFFMAN REFUSED.  SHULMAN, ONE OF THE PETITIONERS, THEN FILED AN
INVOLUNTARY PETITION IN BANKRUPTCY AGAINST THE ASSIGNOR, IN SUCH FORM
THAT IT COULD BE DISMISSED ON MOTION AND WITHOUT NOTICE, AND OBTAINED A
STAY OF THE ASSIGNEE'S SALE.  THE BANKRUPTCY COURT REFUSED TO REVOKE
THE STAY, AND SHULMAN AGAIN APPROACHED HOFFMAN STATING THAT, IF HE
AGREED TO THE PROPOSED ARRANGEMENT, THE BANKRUPTCY PETITION COULD BE
DISMISSED AND THE PLAN CONSUMMATED.  HOFFMAN SAID HE WOULD AGREE, BUT
HE WENT AT ONCE TO THE REFEREE AND DISCLOSED THE SCHEME.  A FEDERAL
INVESTIGATOR WAS CONSULTED AND IT WAS ARRANGED THAT HOFFMAN SHOULD
CONTINUE TO NEGOTIATE WITH THE PETITIONERS.  HE DID SO. NUMEROUS
CONFERENCES WERE HAD AND THE NECESSARY PAPERS DRAWN AND STEPS TAKEN. 
SUCCESS WAS FRUSTRATED ONLY BY THE REFUSAL OF A CREDITOR TO RELEASE FOR
THE OFFERED PERCENTAGE OF HIS CLAIM. 

MEANTIME, TWO FEDERAL AGENTS, WITH THE ASSISTANCE OF THE BUILDING
SUPERINTENDENT, OBTAINED ACCESS AT NIGHT TO SHULMAN'S OFFICE AND TO THE
ADJOINING ONE AND INSTALLED A LISTENING APPARATUS IN A SMALL APERTURE
IN THE PARTITION WALL, WITH A WIRE TO BE ATTACHED TO EARPHONES
EXTENDING INTO THE ADJOINING OFFICE.  THIS WAS FOR THE PURPOSE OF
OVERHEARING A CONFERENCE WITH HOFFMAN, SET FOR THE FOLLOWING
AFTERNOON.  THE NEXT AFTERNOON, ONE OF THE AGENTS RETURNED TO THE
ADJOINING ROOM WITH TWO OTHERS AND A STENOGRAPHER.  THEY CONNECTED THE
EARPHONES TO THE APPARATUS BUT IT WOULD NOT WORK.  THEY HAD WITH THEM
ANOTHER DEVICE, A DETECTAPHONE, HAVING A RECEIVER SO DELICATE AS, WHEN
PLACED AGAINST THE PARTITION WALL, TO PICK UP SOUND WAVES ORIGINATING
IN SHULMAN'S OFFICE, AND MEANS FOR AMPLIFYING AND HEARING THEM.  WITH
THIS THE AGENTS OVERHEARD, AND THE STENOGRAPHER TRANSCRIBED, PORTIONS
OF CONVERSATIONS BETWEEN HOFFMAN, SHULMAN, AND MARTIN GOLDMAN ON
SEVERAL OCCASIONS, AND ALSO HEARD WHAT SHULMAN SAID WHEN TALKING OVER
THE TELEPHONE FROM HIS OFFICE. 

BEFORE THE TRIAL, SHULMAN LEARNED THE FACTS AND MADE A MOTION, IN
WHICH THE OTHER PETITIONERS JOINED, TO SUPPRESS THE EVIDENCE THUS
OBTAINED.  A PRELIMINARY HEARING WAS HAD AND THE MOTION WAS DENIED.  AT
THE TRIAL, THE EVIDENCE WAS ADMITTED OVER OBJECTION THAT ITS RECEIPT
VIOLATED THE FOURTH AMENDMENT OF THE CONSTITUTION AND, AS RESPECTS
SHULMAN'S TALK INTO THE TELEPHONE RECEIVER, VIOLATED ALSO SEC. 605 OF
THE FEDERAL COMMUNICATIONS ACT.  FN4 

AT THE PRELIMINARY HEARING, AND AT THE TRIAL, COUNSEL FOR PETITIONERS
DEMANDED THAT THEY BE PERMITTED TO INSPECT THE NOTES AND MEMORANDA MADE
BY THE AGENTS DURING THE INVESTIGATION, THE AGENTS HAVING ADMITTED THEY
HAD REFRESHED THEIR RECOLLECTION FROM THESE PAPERS PRIOR TO
TESTIFYING.  THE TRIAL JUDGE RULED THAT THE PAPERS NEED NOT BE
EXHIBITED BY THE WITNESSES. 

1.  WE HOLD THERE WAS NO ERROR IN DENYING THE INSPECTION OF THE
WITNESSES' MEMORANDA.  THE JUDGE WAS CLEARLY RIGHT IN HIS RULING AT THE
PRELIMINARY HEARING, AS THE PETITIONERS SHOULD NOT HAVE HAD ACCESS,
PRIOR TO TRIAL, TO MATERIAL CONSTITUTING A SUBSTANTIAL PORTION OF THE
GOVERNMENT'S CASE. 

WE THINK IT THE BETTER RULE THAT WHERE A WITNESS DOES NOT USE HIS
NOTES OR MEMORANDA IN COURT, A PARTY HAS NO ABSOLUTE RIGHT TO HAVE THEM
PRODUCED AND TO INSPECT THEM.  WHERE, AS HERE, THEY ARE NOT ONLY THE
WITNESS' NOTES BUT ARE ALSO PART OF THE GOVERNMENT'S FILES, A LARGE
DISCRETION MUST BE ALLOWED THE TRIAL JUDGE.  WE ARE UNWILLING TO HOLD
THAT THE DISCRETION WAS ABUSED IN THIS CASE. 

2.  WE HOLD THAT THE OVERHEARING AND DIVULGENCE OF WHAT SHULMAN SAID
INTO A TELEPHONE RECEIVER WAS NOT A VIOLATION OF SEC. 605. 

THE PETITIONERS CONTEND THAT A COMMUNICATION FALLS WITHIN THE
PROTECTION OF THE STATUTE ONCE A SPEAKER HAS UTTERED WORDS WITH THE
INTENT THAT THEY CONSTITUTE A TRANSMISSION OF A TELEPHONE
CONVERSATION.  THE VALIDITY OF THE CONTENTION MUST BE TESTED BY THE
TERMS OF THE ACT FAIRLY CONSTRUED.  SO CONSIDERED, THERE WAS NEITHER A
"COMMUNICATION" NOR AN "INTERCEPTION" WITHIN THE MEANING OF THE ACT. 
THE PROTECTION INTENDED AND AFFORDED BY THE STATUTE IS OF THE MEANS OF
COMMUNICATION AND NOT OF THE SECRECY OF THE CONVERSATION.  SECTION 3
EMBODIES THE FOLLOWING DEFINITION:  FN5 

"(A)  'WIRE COMMUNICATION' OR 'COMMUNICATION BY WIRE' MEANS THE
TRANSMISSION OF WRITING, SIGNS, SIGNALS, PICTURES, AND SOUNDS OF ALL
KINDS BY AID OF WIRE, CABLE, OR OTHER LIKE CONNECTION BETWEEN THE
POINTS OF ORIGIN AND RECEPTION OF SUCH TRANSMISSION, INCLUDING ALL
INSTRUMENTALITIES, FACILITIES, APPARATUS, AND SERVICES (AMONG OTHER
THINGS, THE RECEIPT, FORWARDING, AND DELIVERY OF COMMUNICATIONS)
INCIDENTAL TO SUCH TRANSMISSION." 

WHAT IS PROTECTED IS THE MESSAGE ITSELF THROUGHOUT THE COURSE OF ITS
TRANSMISSION BY THE INSTRUMENTALITY OR AGENCY OF TRANSMISSION.  FN6
WORDS WRITTEN BY A PERSON AND INTENDED ULTIMATELY TO BE CARRIED AS SO
WRITTEN TO A TELEGRAPH OFFICE DO NOT CONSTITUTE A COMMUNICATION WITHIN
THE TERMS OF THE ACT UNTIL THEY ARE HANDED TO AN AGENT OF THE TELEGRAPH
COMPANY.  WORDS SPOKEN IN A ROOM IN THE PRESENCE OF ANOTHER INTO A
TELEPHONE RECEIVER DO NOT CONSTITUTE A COMMUNICATION BY WIRE WITHIN THE
MEANING OF THE SECTION.  LETTERS DEPOSITED IN THE POST OFFICE ARE
PROTECTED FROM EXAMINATION BY FEDERAL STATUTE,  FN7  BUT IT COULD NOT
RIGHTLY BE CLAIMED THAT THE OFFICE CARBON OF SUCH LETTER, OR INDEED THE
LETTER ITSELF BEFORE IT HAS LEFT THE OFFICE OF THE SENDER, COMES WITHIN
THE PROTECTION OF THE STATUTE.  THE SAME VIEW OF THE SCOPE OF THE
COMMUNICATIONS ACT FOLLOWS FROM THE NATURAL MEANING OF THE TERM
"INTERCEPT."  AS HAS RIGHTLY BEEN HELD, THIS WORD INDICATES THE TAKING
OR SEIZURE BY THE WAY OR BEFORE ARRIVAL AT THE DESTINED PLACE.  IT DOES
NOT ORDINARILY CONNOTE THE OBTAINING OF WHAT IS TO BE SENT BEFORE, OR
AT THE MOMENT, IT LEAVES THE POSSESSION OF THE PROPOSED SENDER, OR
AFTER, OR AT THE MOMENT, IT COMES INTO THE POSSESSION OF THE INTENDED
RECEIVER.  FN8  THE LISTENING IN THE NEXT ROOM TO THE WORDS OF SHULMAN
AS HE TALKED INTO THE TELEPHONE RECEIVER WAS NO MORE THE INTERCEPTION
OF A WIRE COMMUNICATION, WITHIN THE MEANING OF THE ACT, THAN WOULD HAVE
BEEN THE OVERHEARING OF THE CONVERSATION BY ONE SITTING IN THE SAME
ROOM. 

3.  WE HOLD THAT WHAT WAS HEARD BY THE USE OF THE DETECTAPHONE WAS
NOT MADE ILLEGAL BY TRESPASS OR UNLAWFUL ENTRY. 

THE PETITIONERS' CONTEND THAT THE TRESPASS COMMITTED IN SHULMAN'S
OFFICE WHEN THE LISTENING APPARATUS WAS THERE INSTALLED, AND WHAT WAS
LEARNED AS THE RESULT OF THAT TRESPASS, WAS OF SOME ASSISTANCE ON THE
FOLLOWING DAY IN LOCATING THE RECEIVER OF THE DETECTAPHONE IN THE
ADJOINING OFFICE, AND THIS CONNECTION BETWEEN THE TRESPASS AND THE
LISTENING RESULTED IN A VIOLATION OF THE FOURTH AMENDMENT.  WHATEVER
TRESPASS WAS COMMITTED WAS CONNECTED WITH THE INSTALLATION OF THE
LISTENING APPARATUS.  AS RESPECTS IT, THE TRESPASS MIGHT BE SAID TO BE
CONTINUING AND, IF THE APPARATUS HAD BEEN USED IT MIGHT, WITH REASON,
BE CLAIMED THAT THE CONTINUING TRESPASS WAS THE CONCOMITANT OF ITS
USE.  ON THE OTHER HAND, THE RELATION BETWEEN THE TRESPASS AND THE USE
OF THE DETECTAPHONE WAS THAT OF ANTECEDENT AND CONSEQUENT.  BOTH COURTS
BELOW HAVE FOUND THAT THE TRESPASS DID NOT AID MATERIALLY IN THE USE OF
THE DETECTAPHONE.  SINCE WE ACCEPT THESE CONCURRENT FINDINGS, WE NEED
NOT CONSIDER A CONTENTION BASED ON A DENIAL OF THEIR VERITY. 

4.  WE HOLD THAT THE USE OF THE DETECTAPHONE BY GOVERNMENT AGENTS WAS
NOT A VIOLATION OF THE FOURTH AMENDMENT. 

IN ASKING US TO HOLD THAT THE INFORMATION OBTAINED WAS OBTAINED IN
VIOLATION OF THE FOURTH AMENDMENT, AND THAT ITS USE AT THE TRIAL WAS,
THEREFORE, BANNED BY THE AMENDMENT, THE PETITIONERS RECOGNIZE THAT THEY
MUST RECKON WITH OUR DECISION IN OLMSTEAD V. UNITED STATES, 277 U.S.
438.  THEY ARGUE THAT THE CASE MAY BE DISTINGUISHED.  THE SUGGESTED
GROUND OF DISTINCTION IS THAT THE OLMSTEAD CASE DEALT WITH THE TAPPING
OF TELEPHONE WIRES, AND THE COURT ADVERTED TO THE FACT THAT, IN USING A
TELEPHONE, THE SPEAKER PROJECTS HIS VOICE BEYOND THE CONFINES OF HIS
HOME OR OFFICE AND, THEREFORE, ASSUMES THE RISK THAT HIS MESSAGE MAY BE
INTERCEPTED.  IT IS URGED THAT WHERE, AS IN THE PRESENT CASE, ONE TALKS
IN HIS OWN OFFICE, AND INTENDS HIS CONVERSATION TO BE CONFINED WITHIN
THE FOUR WALLS OF THE ROOM, HE DOES NOT INTEND HIS VOICE SHALL GO
BEYOND THOSE WALLS AND IT IS NOT TO BE ASSUMED HE TAKES THE RISK OF
SOMEONE'S USE OF A DELICATE DETECTOR IN THE NEXT ROOM.  WE THINK,
HOWEVER, THE DISTINCTION IS TOO NICE FOR PRACTICAL APPLICATION OF THE
CONSTITUTIONAL GUARANTEE, AND NO REASONABLE OR LOGICAL DISTINCTION CAN
BE DRAWN BETWEEN WHAT FEDERAL AGENTS DID IN THE PRESENT CASE AND STATE
OFFICERS DID IN THE OLMSTEAD CASE. 

THE PETITIONERS ASK US, IF WE ARE UNABLE TO DISTINGUISH OLMSTEAD V.
UNITED STATES, TO OVERRULE IT.  THIS WE ARE UNWILLING TO DO.  THAT CASE
WAS THE SUBJECT OF PROLONGED CONSIDERATION BY THIS COURT.  THE VIEWS OF
THE COURT, AND OF THE DISSENTING JUSTICES, WERE EXPRESSED CLEARLY AND
AT LENGTH.  TO REHEARSE AND REAPPRAISE THE ARGUMENTS PRO AND CON, AND
THE CONFLICTING VIEWS EXHIBITED IN THE OPINIONS, WOULD SERVE NO GOOD
PURPOSE.  NOTHING NOW CAN BE PROFITABLY ADDED TO WHAT WAS THERE SAID. 
IT SUFFICES TO SAY THAT WE ADHERE TO THE OPINION THERE EXPRESSED. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  CRIMINAL CODE SEC. 37; 18 U.S.C. SEC. 88. 

FN2  11 U.S.C. SEC. 52(B)(5). 

FN3  118 F.2D 310. 

FN4  ACT OF JUNE 19, 1934, 48 STAT. 1064, 1103; 47 U.S.C. SEC. 605. 

FN5  47 U.S.C. SEC. 153. 

FN6  COMPARE DIAMOND V. UNITED STATES, 108 F.2D 859, 860; UNITED
STATES V. POLAKOFF, 112 F.2D 888, 890. 

FN7  EX PARTE JACKSON, 96 U.S. 727. 

FN8  UNITED STATES V. YEE PING JONG, 26 F.SUPP.  69, 70. 

MR. CHIEF JUSTICE STONE AND MR. JUSTICE FRANKFURTER: 

HAD A MAJORITY OF THE COURT BEEN WILLING AT THIS TIME TO OVERRULE THE
OLMSTEAD CASE, WE SHOULD HAVE BEEN HAPPY TO JOIN THEM.  BUT AS THEY
HAVE DECLINED TO DO SO, AND AS WE THINK THIS CASE IS INDISTINGUISHABLE
IN PRINCIPLE FROM OLMSTEAD'S, WE HAVE NO OCCASION TO REPEAT HERE THE
DISSENTING VIEWS IN THAT CASE WITH WHICH WE AGREE. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE MURPHY, DISSENTING: 

I CANNOT AGREE, FOR TO ME IT IS CLEAR THAT THE USE OF THE
DETECTAPHONE UNDER THE CIRCUMSTANCES REVEALED BY THIS RECORD WAS AN
UNREASONABLE SEARCH AND SEIZURE WITHIN THE CLEAR INTENDMENT OF THE
FOURTH AMENDMENT. 

ONE OF THE GREAT BOONS SECURED TO THE INHABITANTS OF THIS COUNTRY BY
THE BILL OF RIGHTS IS THE RIGHT OF PERSONAL PRIVACY GUARANTEED BY THE
FOURTH AMENDMENT.  IN NUMEROUS WAYS THE LAW PROTECTS THE INDIVIDUAL
AGAINST UNWARRANTED INTRUSIONS BY OTHERS INTO HIS PRIVATE AFFAIRS.  FN1
IT COMPENSATES HIM FOR TRESPASS ON HIS PROPERTY OR AGAINST HIS
PERSON.  IT PROHIBITS THE PUBLICATION AGAINST HIS WILL OF HIS THOUGHTS,
SENTIMENTS, AND EMOTIONS, REGARDLESS OF WHETHER THOSE ARE EXPRESSED IN
WORDS, PAINTING, SCULPTURE, MUSIC, OR IN OTHER MODES.  FN2  IT MAY
PROHIBIT THE USE OF HIS PHOTOGRAPH FOR COMMERCIAL PURPOSES WITHOUT HIS
CONSENT N3.  THESE ARE RESTRICTIONS ON THE ACTIVITIES OF PRIVATE
PERSONS.  BUT THE FOURTH AMENDMENT PUTS A RESTRAINT ON THE ARM OF THE
GOVERNMENT ITSELF, AND PREVENTS IT FROM INVADING THE SANCTITY OF A
MAN'S HOME OR HIS PRIVATE QUARTERS IN A CHASE FOR A SUSPECT, EXCEPT
UNDER SAFEGUARDS CALCULATED TO PREVENT OPPRESSION AND ABUSE OF
AUTHORITY. 

ON THE VALUE OF THE RIGHT TO PRIVACY, AS DEAR AS ANY TO FREE MEN,
LITTLE CAN OR NEED BE ADDED TO WHAT WAS SAID IN ENTICK V. CARRINGTON,
19 HOW.  ST. TR. 1030, BOYD V. UNITED STATES, 116 U.S. 616, AND MR.
JUSTICE BRANDEIS' MEMORABLE DISSENT IN OLMSTEAD V. UNITED STATES, 277
U.S. 438, 471.  SUFFICE IT TO SAY THAT THE SPIRITUAL FREEDOM OF THE
INDIVIDUAL DEPENDS IN NO SMALL MEASURE UPON THE PRESERVATION OF THAT
RIGHT.  INSISTENCE ON ITS RETENTION DOES NOT MEAN THAT A PERSON HAS
ANYTHING TO CONCEAL, BUT MEANS RATHER THAT THE CHOICE SHOULD BE HIS AS
TO WHAT HE WISHES TO REVEAL, SAVING ONLY TO THE GOVERNMENT THE RIGHT TO
SEEK OUT CRIME UNDER A PROCEDURE WITH SUITABLE SAFEGUARDS FOR THE
PROTECTION OF INDIVIDUAL RIGHTS, SUCH AS THE WARRANT WHOSE REQUISITES
ARE SET FORTH IN THE FOURTH AMENDMENT.    IT WILL BE CONCEDED THAT IF
THE LANGUAGE OF THE AMENDMENT WERE GIVEN ONLY A LITERAL CONSTRUCTION,
IT MIGHT NOT FIT THE CASE NOW PRESENTED FOR REVIEW.  THE PETITIONERS
WERE NOT PHYSICALLY SEARCHED.  THEIR HOMES WERE NOT ENTERED.  THEIR
FILES WERE NOT RANSACKED.  THEIR PAPERS AND EFFECTS WERE NOT
DISTURBED.  BUT IT HAS NOT BEEN THE RULE OR PRACTICE OF THIS COURT TO
PERMIT THE SCOPE AND OPERATION OF BROAD PRINCIPLES ORDAINED BY THE
CONSTITUTION TO BE RESTRICTED, BY A LITERAL READING OF ITS PROVISIONS,
TO THOSE EVILS AND PHENOMENA THAT WERE CONTEMPORARY WITH ITS FRAMING. 
CF. WEEMS V. UNITED STATES, 217 U.S. 349, 373; UNITED STATES V.
CLASSIC, 313 U.S. 299, 316. 

THE CONDITIONS OF MODERN LIFE HAVE GREATLY EXPANDED THE RANGE AND
CHARACTER OF THOSE ACTIVITIES WHICH REQUIRE PROTECTION FROM INTRUSIVE
ACTION BY GOVERNMENT OFFICIALS IF MEN AND WOMEN ARE TO ENJOY THE FULL
BENEFIT OF THAT PRIVACY WHICH THE FOURTH AMENDMENT WAS INTENDED TO
PROVIDE.  IT IS OUR DUTY TO SEE THAT THIS HISTORIC PROVISION RECEIVES A
CONSTRUCTION SUFFICIENTLY LIBERAL AND ELASTIC TO MAKE IT SERVE THE
NEEDS AND MANNERS OF EACH SUCCEEDING GENERATION.  CF. GRAU V. UNITED
STATES, 287 U.S. 124, 128, AND CASES CITED.  OTHERWISE, IT MAY BECOME
OBSOLETE, INCAPABLE OF PROVIDING THE PEOPLE OF THIS LAND ADEQUATE
PROTECTION.  TO THIS END WE MUST GIVE MIND NOT MERELY TO THE EXACT
WORDS OF THE AMENDMENT, BUT ALSO TO ITS HISTORIC PURPOSE, ITS HIGH
POLITICAL CHARACTER, AND ITS MODERN SOCIAL AND LEGAL IMPLICATIONS. 

WITH THE PASSING OF THE YEARS SINCE 1787, MARKED CHANGES HAVE ENSUED
IN THE WAYS OF CONDUCTING BUSINESS AND PERSONAL AFFAIRS.  MANY
TRANSACTIONS OF A BUSINESS OR PERSONAL CHARACTER THAT IN THE EIGHTEENTH
CENTURY WERE CONDUCTED AT HOME ARE NOW CARRIED ON IN BUSINESS OFFICES
AWAY FROM THE HOME.  IF THE METHOD AND HABITS OF THE PEOPLE IN 1787
WITH RESPECT TO THE CONDUCT OF THEIR PRIVATE BUSINESS HAD BEEN WHAT
THEY ARE TODAY, IS IT POSSIBLE TO THINK THAT THE FRAMERS OF THE BILL OF
RIGHTS WOULD HAVE BEEN ANY LESS SOLICITOUS OF THE PRIVACY OF
TRANSACTIONS CONDUCTED IN THE OFFICE OF A LAWYER, A DOCTOR, OR A MAN OF
BUSINESS, THAN THEY WERE OF A PERSON'S PAPERS AND EFFECTS?  FN4 

THERE WAS NO PHYSICAL ENTRY IN THIS CASE.  BUT THE SEARCH OF ONE'S
HOME OR OFFICE NO LONGER REQUIRES PHYSICAL ENTRY, FOR SCIENCE HAS
BROUGHT FORTH FAR MORE EFFECTIVE DEVICES FOR THE INVASION OF A PERSON'S
PRIVACY THAN THE DIRECT AND OBVIOUS METHODS OF OPPRESSION WHICH WERE
DETESTED BY OUR FOREBEARS AND WHICH INSPIRED THE FOURTH AMENDMENT N5. 
SURELY THE SPIRIT MOTIVATING THE FRAMERS OF THAT AMENDMENT WOULD ABHOR
THESE NEW DEVICES NO LESS.  PHYSICAL ENTRY MAY BE WHOLLY IMMATERIAL. 
FN6  WHETHER THE SEARCH OF PRIVATE QUARTERS IS ACCOMPLISHED BY PLACING
ON THE OUTER WALLS OF THE SANCTUM A DETECTAPHONE THAT TRANSMITS TO THE
OUTSIDE LISTENER THE INTIMATE DETAILS OF A PRIVATE CONVERSATION, OR BY
NEW METHODS OF PHOTOGRAPHY THAT PENETRATE WALLS OR OVERCOME DISTANCES,
THE PRIVACY OF THE CITIZEN IS EQUALLY INVADED BY AGENTS OF THE
GOVERNMENT AND INTIMATE PERSONAL MATTERS ARE LAID BARE TO VIEW.  SUCH
INVASIONS OF PRIVACY, UNLESS THEY ARE AUTHORIZED BY A WARRANT ISSUED IN
THE MANNER AND FORM PRESCRIBED BY THE AMENDMENT, OR OTHERWISE CONDUCTED
UNDER ADEQUATE SAFEGUARDS DEFINED BY STATUTE, ARE AT ONE WITH THE EVILS
WHICH HAVE HERETOFORE BEEN HELD TO BE WITHIN THE FOURTH AMENDMENT, AND
EQUALLY CALL FOR REMEDIAL ACTION.  FN7 

ON THE BASIS OF THE NARROW, LITERAL CONSTRUCTION OF THE SEARCH AND
SEIZURE CLAUSE OF THE FOURTH AMENDMENT ADOPTED IN OLMSTEAD V. UNITED
STATES, 277 U.S. 438,  FN8  GOVERNMENT OFFICIALS COULD WELL BELIEVE
THAT ACTIVITIES OF THE CHARACTER HERE INVOLVED DID NOT CONTRAVENE THE
CONSTITUTIONAL MANDATE.  BUT FOR MY PART, I THINK THAT THE OLMSTEAD
CASE WAS WRONG.  THE ERROR OF THE STULTIFYING CONSTRUCTION THERE
ADOPTED IS BEST SHOWN BY THE RESULTS TO WHICH IT LEADS.  IT IS STRANGE
DOCTRINE THAT KEEPS INVIOLATE THE MOST MUNDANE OBSERVATIONS ENTRUSTED
TO THE PERMANENCE OF PAPER BUT ALLOWS THE REVELATION OF THOUGHTS
UTTERED WITHIN THE SANCTITY OF PRIVATE QUARTERS, THOUGHTS PERHAPS TOO
INTIMATE TO BE SET DOWN EVEN IN A SECRET DIARY, OR INDEED, UTTERANCES
ABOUT WHICH THE COMMON LAW DREW THE CLOAK OF PRIVILEGE - THE MOST
CONFIDENTIAL REVELATIONS BETWEEN HUSBAND AND WIFE, CLIENT AND LAWYER,
PATIENT AND PHYSICIAN, AND PENITENT AND SPIRITUAL ADVISER.  NOR CAN I
SEE ANY RATIONAL BASIS FOR DENYING TO THE MODERN MEANS OF COMMUNICATION
THE SAME PROTECTION THAT IS EXTENDED BY THE AMENDMENT TO THE SEALED
LETTER IN THE MAILS.  SEE EX PARTE JACKSON, 96 U.S. 727.  OFFICERS
CONDUCTING AN UNREASONABLE SEARCH ARE SEEKING EVIDENCE AS SUCH; THE
FORM IT TAKES IS OF NO CONCERN TO THEM. 

BUT EVEN IF OLMSTEAD'S CASE IS TO STAND, IT DOES NOT GOVERN THE
PRESENT CASE.  IT WAS NOT THE INTENTION OF PETITIONERS TO PROJECT THEIR
CONVERSATIONS BEYOND THE WALLS OF PETITIONER SHULMAN'S PRIVATE OFFICE. 
FN9  WHATEVER MAY BE SAID OF A WIRE-TAPPING DEVICE THAT PERMITS AN
OUTSIDE TELEPHONE CONVERSATION TO BE OVERHEARD, IT CAN HARDLY BE
DOUBTED THAT THE APPLICATION OF A DETECTAPHONE TO THE WALLS OF A HOME
OR A PRIVATE OFFICE CONSTITUTES A DIRECT INVASION OF THE PRIVACY OF THE
OCCUPANT, AND A SEARCH OF HIS PRIVATE QUARTERS. 

THE CIRCUMSTANCE THAT PETITIONERS WERE OBVIOUSLY GUILTY OF GROSS
FRAUD IS IMMATERIAL.  THE AMENDMENT PROVIDES NO EXCEPTION IN ITS
GUARANTY OF PROTECTION.  ITS GREAT PURPOSE WAS TO PROTECT THE CITIZEN
AGAINST OPPRESSIVE TACTICS.  ITS BENEFITS ARE ILLUSORY INDEED IF THEY
ARE DENIED TO PERSONS WHO MAY HAVE BEEN CONVICTED WITH EVIDENCE
GATHERED BY THE VERY MEANS WHICH THE AMENDMENT FORBIDS.  CF. WEEKS V.
UNITED STATES, 232 U.S. 383.  ITS PROTECTING ARM EXTENDS TO ALL ALIKE,
WORTHY AND UNWORTHY, WITHOUT DISTINCTION.  RIGHTS INTENDED TO PROTECT
ALL MUST BE EXTENDED TO ALL, LEST THEY SO FALL INTO DESUETUDE IN THE
COURSE OF DENYING THEM TO THE WORST OF MEN AS TO AFFORD NO AID TO THE
BEST OF MEN IN TIME OF NEED. 

THE BENEFITS THAT ACCRUE FROM THIS AND OTHER ARTICLES OF THE BILL OF
RIGHTS ARE CHARACTERISTIC OF DEMOCRATIC RULE.  THEY ARE AMONG THE
AMENITIES THAT DISTINGUISH A FREE SOCIETY FROM ONE IN WHICH THE RIGHTS
AND COMFORTS OF THE INDIVIDUAL ARE WHOLLY SUBORDINATED TO THE INTERESTS
OF THE STATE.  WE CHERISH AND UPHOLD THEM AS NECESSARY AND SALUTARY
CHECKS ON THE AUTHORITY OF GOVERNMENT.  THEY PROVIDE A STANDARD OF
OFFICIAL CONDUCT WHICH THE COURTS MUST ENFORCE.  AT A TIME WHEN THE
NATION IS CALLED UPON TO GIVE FREELY OF LIFE AND TREASURE TO DEFEND AND
PRESERVE THE INSTITUTIONS OF DEMOCRACY AND FREEDOM, WE SHOULD NOT
PERMIT ANY OF THE ESSENTIALS OF FREEDOM TO LOSE VITALITY THROUGH LEGAL
INTERPRETATIONS THAT ARE RESTRICTIVE AND INADEQUATE FOR THE PERIOD IN
WHICH WE LIVE. 

FN1  SEE GENERALLY, BRANDEIS AND WARREN, "THE RIGHT TO PRIVACY," 4
HARV. L. REV. 193(1890). 

FN2  IBID., PP. 198-199. 

FN3  SEE PAVESICH V. NEW ENGLAND LIFE INS. CO., 122 GA. 190, 50 S.E.
68; BAZEMORE V. SAVANNAH HOSPITAL, 171 GA. 257, 155 S.E. 194; KUNZ V.
ALLEN, 102 KAN. 883, 172 P. 532; FOSTER-MILBURN V. CHINN, 134 KY. 424,
120 S.W. 364; MUNDEN V. HARRIS, 153 MO. APP. 652, 134 S.W. 1076; FLAKE
V. GREENSBORO NEWS CO., 212 N.C. 780, 195 S.E. 55; HOLLOMAN V. LIFE
INS. CO. OF VIRGINIA, 192 S.C. 454, 7 S.E.2D 169.  CF. HENRY V. CHERRY
& WEBB, 30 R.I. 13, 73 A. 97; HILLMAN V. STAR PUBLISHING CO., 64 WASH.
691, 117 P. 594; ATKINSON V. JOHN E. DOHERTY & CO., 121 MICH. 372; 80
N.W. 285; JONES V. HERALD POST CO., 230 KY. 227, 18 S.W.2D 972; O'BRIEN
V. PABST SALES CO. 124 F.2D 167.  SEE ALSO SEC. 51 OF THE NEW YORK
CIVIL RIGHTS LAW. 

FN4  PAPERS TAKEN FROM AN OFFICE IN THE COURSE OF AN UNREASONABLE
SEARCH ARE TAKEN IN VIOLATION OF THE FOURTH AMENDMENT.  SILVERTHORNE
LUMBER CO. V. UNITED STATES, 251 U.S. 385; GOULED V. UNITED STATES, 255
U.S. 298; GO-BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344; UNITED
STATES V. LEFKOWITZ, 285 U.S. 452. 

FN5  THOSE DEVICES WERE THE GENERAL WARRANTS, THE WRITS OF ASSISTANCE
AND THE LETTRES DE CACHET. 

ON THE SUBJECT OF THE GENERAL WARRANT, SEE ENTICK V. CARRINGTON, 19
HOW.  ST. TR. 1030, AND MAY, CONSTITUTIONAL HISTORY OF ENGLAND (2D
ED.), VOL. III, PP. 1-10. 

FOR AN ACCOUNT OF THE WRITS OF ASSISTANCE, SEE QUINCY (MASS.)
51(1761) AND GRAY'S APPENDIX TO QUINCY'S REPORTS.  SEE ALSO TUDOR,
JAMES OTIS, P. 66, AND JOHN ADAMS, WORKS, VOL. II, P. 524. 

THE LETTRES DE CACHET ARE DISCUSSED IN CHASSAIGNE, LES LETTRES DE
CACHET SOUS L'ANCIEN REGIME (PARIS, 1903). 

FN6  "IT IS NOT THE BREAKING OF HIS (MAN'S) DOORS, AND THE RUMMAGING
OF HIS DRAWERS, THAT CONSTITUTES THE ESSENCE OF THE OFFENCE" - THOSE
ARE BUT "CIRCUMSTANCES OF AGGRAVATION."  BOYD V. UNITED STATES, 116
U.S. 616, 630. 

FN7  A WARRANT CAN BE DEVISED WHICH WOULD PERMIT THE USE OF A
DETECTAPHONE.  CF. ARTICLE 1, SEC. 12 OF THE NEW YORK CONSTITUTION
(1938).  AND, WHILE A SEARCH WARRANT, WITH ITS PROCEDURAL SAFEGUARDS
HAS GENERALLY BEEN REGARDED AS PREREQUISITE TO THE REASONABLENESS OF A
SEARCH IN THOSE AREAS OF ESSENTIAL PRIVACY, SUCH AS THE HOME, TO WHICH
THE FOURTH AMENDMENT APPLIES (SEE AGNELLO V. UNITED STATES, 269 U.S.
20, 32), SOME METHOD OF RESPONSIBLE ADMINISTRATIVE SUPERVISION COULD BE
EVOLVED FOR THE USE OF THE DETECTAPHONE WHICH, LIKE THE VALID SEARCH
WARRANT, WOULD ADEQUATELY PROTECT THE PRIVACY OF THE INDIVIDUAL AGAINST
IRRESPONSIBLE AND INDISCRIMINATE INTRUSIONS BY GOVERNMENT OFFICERS. 
SEE WIGMORE, EVIDENCE (3D ED.), VOL. 8, SEC. 2184B, PP. 51-2. 

WHILE THE DETECTAPHONE IS PRIMARILY USED TO OBTAIN EVIDENCE, AND
WHILE SUCH USE APPEARS TO BE CONDEMNED BY THE RULINGS OF THIS COURT IN
GOULED V. UNITED STATES, 255 U.S. 298, AND UNITED STATES V. LEFKOWITZ,
285 U.S. 452, I AM NOT PREPARED TO SAY THAT THIS PURPOSE NECESSARILY
MAKES ALL DETECTAPHONE "SEARCHES" UNREASONABLE, NO MATTER WHAT THE
CIRCUMSTANCES, OR THE PROCEDURAL SAFEGUARDS EMPLOYED.  CF. MARRON V.
UNITED STATES, 275 U.S. 192.  SEE WIGMORE, EVIDENCE (3D ED.), VOL. 8,
SECS. 2251, 2264; 31 YALE L.J. 518, 522; CHAFEE, PROGRESS OF THE LAW,
1919-1922, 35 HARV. L. REV. 673, 699; 32 COL. L. REV. 386; COOLEY,
CONSTITUTIONAL LIMITATIONS (8TH ED.), VOL. 1, P. 625. 

FN8  THE OLMSTEAD CASE LIMITS THE SEARCH AND SEIZURE CLAUSE TO "AN
OFFICIAL SEARCH AND SEIZURE OF HIS (DEFENDANT'S) PERSON OR SUCH A
SEIZURE OF HIS PAPERS OR HIS TANGIBLE MATERIAL EFFECTS, OR AN ACTUAL
PHYSICAL INVASION OF HIS HOUSE 'OR CURTILAGE' FOR THE PURPOSE OF MAKING
A SEIZURE."  277 U.S. 438, 466. 

THE DECISIONS OF THIS COURT PRIOR TO THE OLMSTEAD CASE INSISTED ON A
LIBERAL CONSTRUCTION OF THE FOURTH AMENDMENT AND PLACED WITHIN ITS
COMPASS ACTIVITIES BEARING SLIGHT, IF ANY, RESEMBLANCE TO THE MISCHIEFS
KNOWN AT THE TIME OF ITS ADOPTION.  SEE BOYD V. UNITED STATES, 116 U.S.
616; SILVERTHORNE LUMBER CO. V. UNITED STATES, 251 U.S. 385; GOULED V.
UNITED STATES, 255 U.S. 298. 

FN9  IT ALSO APPEARS THAT THE GOVERNMENT AGENTS OVERHEARD SHULMAN'S
END OF SOME OUTSIDE TELEPHONE CONVERSATIONS. 
..END :
























MILCOR STEEL CO. V. FULLER CO., 316 U.S. 143 


NO. 720.  ARGUED MARCH 30, 1942.  - DECIDED APRIL 27, 1942.  - 122 F.2D
292, AFFIRMED. 


1.  IT IS THE CLAIMS, NOT THE SPECIFICATIONS, THAT MEASURE THE GRANT
OF A PATENT.  P. 145. 

2.  A DISCLAIMER UNDER THE PATENT LAW, R.S. SEC. 4917, WHICH ATTEMPTS
TO ADD NEW ELEMENTS TO A CLAIM AND THEREBY CHANGES THE CHARACTER OF THE
CLAIM, IS INVALID, EVEN THOUGH IN OTHER RESPECTS IT NARROWS THE CLAIM. 
P. 147. 

MILCOR STEEL CO. V. GEORGE A. FULLER CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 314 U.S. 604, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A SUIT FOR INFRINGEMENT OF A PATENT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT IN THE DISTRICT COURT FOR INFRINGEMENT OF TWO
CLAIMS OF A PATENT ISSUED TO ONE HOLDSWORTH AND ASSIGNED TO THE
PETITIONER.  ONE DEFENSE PLEADED BY THE RESPONDENTS WAS THAT HOLDSWORTH
WAS NOT THE ORIGINAL INVENTOR.  WHEN A PATENTEE, "THROUGH INADVERTENCE,
ACCIDENT, OR MISTAKE, AND WITHOUT ANY FRAUDULENT OR DECEPTIVE INTENTION
...  HAS CLAIMED MORE THAN THAT OF WHICH HE WAS THE ORIGINAL OR FIRST
INVENTOR  ...  ," REV. STAT. SEC. 4917, 35 U.S.C. SEC. 65, PRESERVES
FOR HIM OR HIS ASSIGNEE "ALL THAT PART WHICH IS TRULY AND JUSTLY HIS
OWN, PROVIDED THE SAME IS A MATERIAL OR SUBSTANTIAL PART OF THE THING
PATENTED."  THE METHOD PRESCRIBED FOR SAVING THE PATENT IN PART IS
"DISCLAIMER OF SUCH PARTS OF THE THING PATENTED" AS THE PATENTEE OR HIS
ASSIGNEE "SHALL NOT CHOOSE TO CLAIM."  AFTER THE RESPONDENTS ANSWERED,
THE PETITIONER FILED DISCLAIMERS IN THE PATENT OFFICE WITH RESPECT TO
THE TWO CLAIMS IN SUIT, PURPORTING TO NARROW THEIR SCOPE IN ACCORDANCE
WITH THE STATUTORY AUTHORIZATION.  THE DEFENDANTS THEN MOVED FOR
SUMMARY JUDGMENT ON THE PLEADINGS PURSUANT TO RULES 12(C) AND 56(B) OF
THE FEDERAL RULES OF CIVIL PROCEDURE.  THEIR GROUNDS, AMONG OTHERS,
WERE THAT THE REVISED CLAIMS ADDED NEW ELEMENTS NOT RECITED IN THE
ORIGINAL ONES; AND REPRESENTED AN EFFORT TO GIVE THE OLD PATENT A NEW
SCOPE NOT PREVIOUSLY CONTEMPLATED AND NEVER PASSED UPON IN THE LIGHT OF
THE PRIOR ART BY THE PATENT OFFICE.  THE DISTRICT COURT FOUND THAT THE
DISCLAIMERS DID IMPORT NEW ELEMENTS NOT INCLUDED IN THE ORIGINAL CLAIMS
AND HELD THAT THEY RENDERED THE CLAIMS INVALID, RELYING UPON OUR
DECISION IN ALTOONA THEATRES V. TRI-ERGON CORP., 294 U.S. 477. 
ACCORDINGLY, IT ENTERED SUMMARY JUDGMENT FOR THE DEFENDANTS.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  122 F.2D 292. 

AS WE READ THE OPINION OF THE COURT BELOW, IT AFFIRMS THE PROPOSITION
THAT, WHERE A DISCLAIMER ATTEMPTS TO ADD A NEW ELEMENT TO A CLAIM, THE
DISCLAIMER IS INVALID EVEN THOUGH IT MAY ALSO MAKE THE REVISED CLAIM
NARROWER THAN THE ORIGINAL.  WE GRANTED CERTIORARI BECAUSE OF ALLEGED
CONFLICT WITH DECISIONS ON THE QUESTION IN OTHER CIRCUITS.  FN1 

THE PATENT IN SUIT HERE IS FOR A WALL, TO BE USED AS A PARTITION
BETWEEN ROOMS OR ON THE INNER SIDE OF THE WALLS OF THE BUILDING
ITSELF.  THE NECESSARY PARTS ARE A PIECE OF METAL TO BE FASTENED TO THE
CEILING; ANOTHER TO BE FASTENED TO THE FLOOR; UPSTANDING CHANNEL IRON
SUPPORTS RUNNING BETWEEN THE TOP AND BOTTOM MEMBERS; METAL LATHING TO
BE FASTENED BY WIRES TO THE SKELETON WALL IN ORDER THAT PLASTERING MAY
BE SUPPORTED. 

THE SPECIFICATIONS DESCRIBE AND DRAWINGS ILLUSTRATE (1) A TOP ANGLE
IRON MEMBER WITH A PERFORATED SURFACE OR FLANGE HANGING DOWNWARD SO AS
TO FIT INTO SLOTS AT THE TOP OF THE UPSTANDING IRONS; (2) RECESSES IN
THE BASE MEMBER PROVIDING A SNUG FIT FOR THE BOTTOM PART OF THE
UPSTANDING CHANNEL IRONS.  THE TWO CLAIMS IN CONTROVERSY ARE PRINTED IN
THE MARGIN.  FN2  AS THE COURTS BELOW POINTED OUT, IT IS THESE CLAIMS,
NOT THE SPECIFICATIONS, THAT AFFORD THE MEASURE OF THE GRANT TO THE
PATENTEE.  FN3  "OUT OF ALL THE POSSIBLE PERMUTATIONS OF ELEMENTS WHICH
CAN BE MADE FROM THE SPECIFICATIONS, HE RESERVES FOR HIMSELF ONLY THOSE
CONTAINED IN THE CLAIMS."  122 F.2D 292, 294.  THE FOREGOING FEATURES
APPEARING IN THE SPECIFICATIONS ARE NOT SET OUT IN THE CLAIMS
THEMSELVES; THE CLAIMS DO NOT INDICATE IN ANY WAY THAT THESE FEATURES
WERE ESSENTIAL PARTS OF THE COMBINATION FOR WHICH THE PATENT WAS
ISSUED.  ON THE CONTRARY, HOLDSWORTH ASSERTED THAT HIS SPECIFICATIONS
IN GENERAL SHOWED ONLY A "PREFERRED EMBODIMENT" OF HIS INVENTION, AND
WITH RESPECT TO THE CEILING MEMBER IN PARTICULAR, STATED:  "I DO NOT
WISH TO BE LIMITED TO AN ANGLE IRON FOR COMPLETING THE TOP OF THE METAL
CONSTRUCTION." 

THE DISCLAIMERS, HOWEVER, PURPORTED TO MAKE THESE TWO FEATURES
ESSENTIAL PARTS OF THE CLAIMED COMBINATION.  ONE DISCLAIMER SUBSTITUTED
FOR PART OF ONE OF THE ORIGINAL GENERAL CLAIMS A DESCRIPTION OF A
"CEILING MEMBER (WHICH) COMPRISES A VERTICAL DEPENDING PERFORATED
FLANGE, ONE SIDE OF WHICH IS OVERLAPPED BY METAL LATHING"; AND THE
OTHER DISCLAIMER SUBSTITUTED FOR PART OF ANOTHER ORIGINAL GENERAL CLAIM
A DESCRIPTION OF A "BASE MEMBER  ...  COMPOSED OF A LONGITUDINAL STRIP
HAVING RECESSES TO RECEIVE THE LOWER ENDS OF THE WEBS OF CHANNEL WALL
SUPPORTS, THE FLANGES OF THE CHANNEL WALL SUPPORTS OVERLAPPING THE BASE
MEMBER ADJACENT THE RECESSES."  LIMITING OURSELVES, AS WE MUST, TO THE
ORIGINAL CLAIMS TO DETERMINE THE NATURE OF THE COMBINATION COVERED BY
THE PATENT WHEN IT WAS GRANTED, AND COMPARING THAT COMBINATION WITH THE
ONE PURPORTEDLY EMBODIED BY THE CLAIMS AFTER THE DISCLAIMER, WE CAN
ONLY CONCLUDE THAT THE REVISED PATENT INCLUDES NEW ELEMENTS WHICH WERE
NOT PRESENT IN THE ORIGINAL. 

THE PETITIONER'S ARGUMENT IS THAT THE STATUTE AUTHORIZES ANY
DISCLAIMER WHICH ACTUALLY NARROWS THE CLAIM, AND THAT ITS DISCLAIMER
WOULD HAVE THE REQUISITE NARROWING EFFECT BECAUSE IT WOULD RESTRICT THE
CLAIMS TO COVER THE COMBINATION ONLY WHEN THE FEATURES DESCRIBED IN THE
DISCLAIMERS WERE PRESENT. 

BUT IN ALTOONA THEATRES V. TRI-ERGON CORP., SUPRA, 489-490, THE TEST
WHICH THE PETITIONER ARGUES FOR HERE WAS REJECTED.  ALTHOUGH THIS COURT
RECOGNIZED THAT AN EFFECT OF THE DISCLAIMER IN CONTROVERSY IN THE
ALTOONA CASE WAS "IN ONE SENSE TO NARROW THE CLAIMS," IT CONCLUDED THAT
THE DISCLAIMER STATUTE "DOES NOT PERMIT THE ADDITION OF A NEW ELEMENT
TO THE COMBINATION PREVIOUSLY CLAIMED, WHEREBY THE PATENT ORIGINALLY
FOR ONE COMBINATION IS TRANSFORMED INTO A NEW AND DIFFERENT ONE FOR THE
NEW COMBINATION." 

THE HOLDSWORTH PATENT WAS FOR A STRUCTURE COMPOSED OF A COMBINATION
OF FAMILIAR ELEMENTS.  IF THERE WAS NOVELTY, IT CONSISTED IN THE
COMBINATION.  "A COMBINATION IS ALWAYS AN ENTIRETY.  IN SUCH CASES, THE
PATENTEE CANNOT ABANDON A PART AND CLAIM THE REST, NOR CAN HE BE
PERMITTED TO PROVE THAT A PART IS USELESS, AND, THEREFORE, IMMATERIAL. 
HE MUST STAND BY HIS CLAIM AS HE HAS MADE IT.  IF MORE OR LESS THAN THE
WHOLE OF HIS INGREDIENTS ARE USED BY ANOTHER, SUCH PARTY  ... HAS NOT
USED THE INVENTION OR DISCOVERY PATENTED.  WITH THE CHANGE OF THE
ELEMENTS THE IDENTITY OF THE PRODUCT DISAPPEARS."  SCHUMACHER V.
CORNELL, 96 U.S. 549, 554.  THIS COURT HAS EXPLICITLY RECOGNIZED THAT
THE DISCLAIMER STATUTE CANNOT BE INVOKED TO JUSTIFY SUCH A CHANGE. 
VANCE V. CAMPBELL, 1 BLACK 427, 429.  AND HERE, AS IN THE ALTOONA CASE,
THE REVISED CLAIMS CHANGE THE COMBINATION SET OUT IN THE ORIGINAL
CLAIMS.  THE DISCLAIMERS DO MORE THAN DELETE A "DISTINCT AND SEPARABLE
MATTER  ...  WITHOUT MUTILATING OR CHANGING WHAT IS LEFT STANDING";
THEY CHANGE THE CHARACTER OF THE CLAIMED INVENTION AND ARE THEREFORE
UNAUTHORIZED BY THE DISCLAIMER STATUTE.  HAILES V. ALBANY STOVE CO.,
123 U.S. 582, 587. 

IF AN ALTERATION OF ONE OF THE ESSENTIAL ELEMENTS OF A CLAIMED
COMBINATION WERE PERMISSIBLE AT ALL, IT WOULD BE UNDER THE REISSUE
STATUTE, REV. STAT. SEC. 4916, 35 U.S.C. SEC. 64, WHICH GRANTS RIGHTS
ONLY FROM THE DATE OF REISSUE AND AFTER CONSIDERATION BY THE PATENT
OFFICE.  ALTOONA THEATRES V. TRI-ERGON CORP., SUPRA, 491.  TO PERMIT
SUCH SUBSTANTIAL ALTERATIONS UNDER THE DISCLAIMER STATUTE, WHICH, WHERE
APPLICABLE, GIVES EFFECT TO THE REVISED CLAIMS FROM THE DATE OF THE
ORIGINAL ISSUE WITHOUT ANY CONSIDERATION BY THE PATENT OFFICE, WOULD BE
CONTRARY TO THE POLICY OF THE PATENT LAWS.  IN THE WORDS OF MR. JUSTICE
BRADLEY, IT WOULD PERMIT "A MAN  ...  BY MERELY FILING A PAPER DRAWN UP
BY HIS SOLICITOR, (TO) MAKE TO HIMSELF A NEW PATENT."  HAILES V. ALBANY
STOVE CO., SUPRA, 587.  CF. BROOKS V. FISKE, 15 HOW.  212, 219.  IT
WOULD ALSO RETROACTIVELY CREATE POSSIBILITIES OF INNOCENT INFRINGEMENT
WHERE NO ONE WOULD REASONABLY HAVE SUSPECTED THEM TO EXIST. 

THE COURTS BELOW PROPERLY DECIDED THAT THE ATTEMPTED DISCLAIMERS HERE
INVALIDATED THE CLAIMS IN CONTROVERSY.  ACCORDINGLY, THE JUDGMENT IS
AFFIRMED. 

FN1  SEE E.G., PAYNE FURNACE & SUPPLY CO. V. WILLIAMS-WALLACE CO.,
117 F.2D 823; CINCINNATI RUBBER MFG. CO. V. STOWE-WOODWARD, INC., 111
F.2D 239. 

FN2  "6.  A WALL CONSTRUCTION FOR A ROOM HAVING A FLOOR AND A
CEILING, SAID WALL CONSTRUCTION INCLUDING A BASE MEMBER AND A CEILING
MEMBER, SAID WALL CONSTRUCTION ALSO INCLUDING UPSTANDING WALL-SUPPORTS
WHOSE HEIGHT IS LESS THAN THE MAXIMUM VERTICAL DISTANCE BETWEEN SAID
BASE MEMBER AND SAID CEILING MEMBER, SAID UPSTANDING WALL SUPPORTS
BEING LOCATED BETWEEN SAID BASE MEMBER AND SAID CEILING MEMBER, SAID
WALL SUPPORTS BEING VERTICALLY MOVABLE RELATIVE TO SAID BASE MEMBER AND
TO SAID CEILING MEMBER WHEN SAID WALL SUPPORTS ARE ASSEMBLED WITH SAID
BASE MEMBER AND SAID CEILING MEMBER, AND MEANS OPERATIVE TO PREVENT ANY
SUBSTANTIAL TILTING MOVEMENT OF SAID WALL SUPPORTS FROM THEIR
PREDETERMINED UPSTANDING POSITION. 

"7.  A WALL CONSTRUCTION FOR A ROOM HAVING A FLOOR AND A CEILING,
SAID WALL CONSTRUCTION INCLUDING A BASE MEMBER AND A CEILING MEMBER,
SAID WALL CONSTRUCTION ALSO INCLUDING UPSTANDING WALL-SUPPORTS WHOSE
HEIGHT IS LESS THAN THE MAXIMUM VERTICAL DISTANCE BETWEEN SAID BASE
MEMBER AND SAID CEILING MEMBER, SAID UPSTANDING WALL SUPPORTS BEING
LOCATED BETWEEN SAID BASE MEMBER AND SAID CEILING MEMBER, SAID WALL
SUPPORTS BEING VERTICALLY MOVABLE RELATIVE TO SAID BASE MEMBER AND TO
SAID CEILING MEMBER WHEN SAID WALL SUPPORTS ARE ASSEMBLED WITH SAID
BASE MEMBER AND SAID CEILING MEMBER, SAID BASE MEMBER AND SAID CEILING
MEMBER BEING SHAPED TO PROVIDE MEANS WHICH ARE OPERATIVE TO PREVENT ANY
SUBSTANTIAL TILTING OF SAID WALL SUPPORTS FROM THEIR PREDETERMINED
UPSTANDING POSITION." 

ITALICS HAVE BEEN ADDED TO MARK THOSE PORTIONS IN WHICH THE TWO
CLAIMS DIFFER FROM EACH OTHER. 

FN3  REV. STAT. SEC. 4888, 35 U.S.C. SEC. 33, REQUIRES THAT THE
APPLICANT FOR A PATENT "SHALL PARTICULARLY POINT OUT AND DISTINCTLY
CLAIM THE PART, IMPROVEMENT, OR COMBINATION WHICH HE CLAIMS AS HIS
INVENTION OR DISCOVERY."  SEE PAPER BAG PATENT CASE, 210 U.S. 405, 419;
MAHN V. HARWOOD, 112 U.S. 354, 360-361. 
..END :

















TRADE COMM'N V. RALADAM CO., 316 U.S. 149 


NO. 826.  ARGUED APRIL 13, 1942.  - DECIDED APRIL 27, 1942.  - 123 F.2D
34, REVERSED. 


1.  A JUDGMENT REFUSING TO ENFORCE A CEASE-AND-DESIST ORDER OF THE
FEDERAL TRADE COMMISSION BECAUSE OF THE INADEQUACY OF THE FINDINGS AND
PROOF AS REVEALED BY THE PARTICULAR RECORD IS NOT CONTROLLING IN LATER
PROCEEDINGS PRESENTING DIFFERENT FACTS AND A DIFFERENT RECORD.  P.
150. 

2.  ONE OF THE OBJECTS OF THE FEDERAL TRADE COMMISSION ACT WAS TO
PREVENT POTENTIAL INJURY BY STOPPING UNFAIR METHODS OF COMPETITION IN
THEIR INCIPIENCY.  P. 152. 

3.  WHEN THE FEDERAL TRADE COMMISSION FINDS THAT DECEPTIVE STATEMENTS
ARE BEING MADE EXTOLLING THE QUALITY OF MERCHANDISE IN ACTIVE
COMPETITION WITH OTHER MERCHANDISE, IT IS AUTHORIZED TO INFER THAT
TRADE WILL BE DIVERTED FROM COMPETITORS WHO DO NOT ENGAGE IN SUCH
UNFAIR METHODS.  P. 152. 

FEDERAL TRADE COMMISSION V. RALADAM COMPANY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 315 U.S. 790, TO REVIEW A JUDGMENT SETTING ASIDE A CEASE
AND-DESIST ORDER OF THE FEDERAL TRADE COMMISSION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS SET ASIDE A CEASE AND DESIST ORDER OF
THE FEDERAL TRADE COMMISSION UPON THE GROUND THAT CERTAIN FINDINGS WERE
NOT SUPPORTED BY EVIDENCE.  123 F.2D 34.  THE REFUSAL OF THE COURT TO
ENFORCE THE COMMISSION'S ORDER RESTED IN PART UPON AN INTERPRETATION OF
THIS COURT'S DECISION IN A PRIOR CONTROVERSY BETWEEN THE SAME PARTIES. 
FEDERAL TRADE COMM'N V. RALADAM CO., 283 U.S. 643.  BECAUSE OF THE
IMPORTANCE OF QUESTIONS RAISED, WE GRANTED CERTIORARI. 

U.S.C. SEC. 45, DECLARES UNFAIR METHODS OF COMPETITION IN COMMERCE TO
BE UNLAWFUL; EMPOWERS THE COMMISSION TO PREVENT SUCH METHODS; AND
AUTHORIZES THE COMMISSION AFTER HEARINGS AND FINDINGS OF FACT TO ISSUE
ORDERS REQUIRING VIOLATORS "TO CEASE AND DESIST FROM USING SUCH METHOD
OF COMPETITION."  IN 1929, THE COMMISSION, AFTER HEARINGS, FOUND THAT
THE RALADAM COMPANY HAD USED UNFAIR METHODS OF COMPETITION IN SELLING A
PREPARATION CALLED MARMOLA BY MAKING MISLEADING AND DECEPTIVE
STATEMENTS CONCERNING ITS QUALITIES AS A REMEDY FOR OVERWEIGHT.  THE
COMMISSION ISSUED A CEASE AND DESIST ORDER, WHICH THE CIRCUIT COURT OF
APPEALS VACATED.  42 F.2D 430.  THIS COURT AFFIRMED THE COURT OF
APPEALS' JUDGMENT, SAYING THAT THERE WAS "NEITHER FINDING NOR EVIDENCE
FROM WHICH THE CONCLUSION LEGITIMATELY CAN BE DRAWN THAT THESE
ADVERTISEMENTS SUBSTANTIALLY INJURED OR TENDED  ...  TO INJURE THE
BUSINESS OF ANY COMPETITOR OR OF COMPETITORS GENERALLY, WHETHER
LEGITIMATE OR NOT.  ...  IT IS IMPOSSIBLE TO SAY WHETHER, AS A RESULT
OF RESPONDENT'S ADVERTISEMENTS, ANY BUSINESS WAS DIVERTED, OR WAS
LIKELY TO BE DIVERTED, FROM OTHERS ENGAGED IN LIKE TRADE, OR WHETHER
COMPETITORS, IDENTIFIED OR UNIDENTIFIED, WERE INJURED IN THEIR
BUSINESS, OR WERE LIKELY TO BE INJURED, OR, INDEED, WHETHER ANY OTHER
ANTI-OBESITY REMEDIES WERE SOLD OR OFFERED FOR SALE IN COMPETITION, OR
WERE OF SUCH A CHARACTER AS NATURALLY TO COME INTO ANY REAL
COMPETITION, WITH RESPONDENT'S PREPARATION IN THE INTERSTATE MARKET." 
FEDERAL TRADE COMM'N V. RALADAM CO., SUPRA, 652-653.  IT IS CLEAR THAT
THE REASONS FOR REFUSING TO ENFORCE THE COMMISSION'S ORDER ARE GROUNDED
UPON THE INADEQUACY OF THE FINDINGS AND PROOF, AS REVEALED IN THE
PARTICULAR RECORD THEN BEFORE THIS COURT.  HENCE, THESE REASONS ARE NOT
CONTROLLING IN THIS CASE, ARISING, AS IT DOES, OUT OF DIFFERENT
PROCEEDINGS AND PRESENTING DIFFERENT FACTS AND A DIFFERENT RECORD FOR
OUR CONSIDERATION. 

IN 1935, THE COMMISSION INSTITUTED THE PRESENT PROCEEDINGS AGAINST
RALADAM, CHARGING UNFAIR METHODS OF COMPETITION IN VIOLATION OF SEC. 5
OF THE FEDERAL TRADE COMMISSION ACT.  HEARINGS WERE HELD AND MUCH
EVIDENCE WAS HEARD CONCERNING RALADAM'S TRADE METHODS SINCE THE DATE OF
THE EARLIER CEASE AND DESIST ORDER.  THIS TIME THE COMMISSION FOUND
WITH METICULOUS PARTICULARITY THAT RALADAM HAD MADE MANY MISLEADING AND
DECEPTIVE STATEMENTS TO FURTHER SALES OF MARMOLA; THAT MARMOLA HAD MANY
ACTIVE RIVALS FOR THE TRADE OF THOSE WHO WERE INTERESTED IN FATREDUCING
REMEDIES; THAT RALADAM'S MISLEADING STATEMENTS HAD THE "TENDENCY AND
CAPACITY" TO INDUCE PEOPLE "TO PURCHASE AND USE RESPONDENT'S  ...
PREPARATION OR MEDICINE FOR REDUCING PURPOSES  ...  IN PREFERENCE TO
AND TO THE EXCLUSION OF THE PRODUCTS OF COMPETITORS,  ...  AND TO
DIVERT TRADE TO RESPONDENT FROM SUCH COMPETITORS ENGAGED IN THE SALE IN
INTERSTATE COMMERCE OF MEDICINES, PREPARATIONS, SYSTEMS, METHODS, BOOKS
OF INSTRUCTION, AND OTHER ARTICLES AND MEANS DESIGNED, INTENDED AND
USED FOR THE PURPOSE OF REDUCING WEIGHT." 

THESE FINDINGS WERE AN ADEQUATE BASIS FOR THE COMMISSION'S ORDER. 
THE COURT BELOW, HOWEVER, WAS OF THE OPINION THAT THERE WAS NO
SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDING THAT THE ALLEGED UNFAIR
METHODS "SUBSTANTIALLY INJURED OR TENDED TO INJURE THE BUSINESS OF ANY
COMPETITOR."  THE EVIDENCE SHOWS THAT SALES OF MARMOLA TO THE CONSUMING
PUBLIC ARE MADE AT RETAIL DRUG STORES THROUGHOUT THE COUNTRY; THAT
RALADAM DISTRIBUTES MARMOLA BOTH TO WHOLESALERS AND RETAILERS; THAT THE
WHOLESALERS AND RETAILERS WHO SELL MARMOLA ALSO SELL NUMEROUS OTHER
REMEDIES FOR TAKING OFF FAT; THAT THE ESSENTIAL FAT-REDUCING ELEMENT IN
MARMOLA IS DESICCATED THYROID, WHICH IS ALSO AN ELEMENT IN SOME OF THE
OTHER REMEDIES SOLD TO THE PUBLIC WITH OR WITHOUT DOCTORS'
PRESCRIPTIONS; THAT MANY BOOKS OF INSTRUCTION ON METHODS OF REDUCING
WEIGHT ARE SOLD IN INTERSTATE COMMERCE; AND THAT THE GROSS SALES OF
MARMOLA WERE FROM $350,000 TO $400,000 A YEAR.  FROM THIS AND OTHER
EVIDENCE, THE COMMISSION CONCLUDED THAT NUMEROUS ANTIFAT REMEDIES WERE
OFFERED FOR SALE IN THE SAME MARKET AS MARMOLA, AND THAT MARMOLA WAS IN
ACTIVE COMPETITION WITH THEM FOR THE FAVOR OF THE REMEDY-PURCHASING
PUBLIC. 

IT IS NOT NECESSARY THAT THE EVIDENCE SHOW SPECIFICALLY THAT LOSSES
TO ANY PARTICULAR TRADER OR TRADERS ARISE FROM RALADAM'S SUCCESS IN
CAPTURING PART OF THE MARKET.  ONE OF THE OBJECTS OF THE ACT CREATING
THE FEDERAL TRADE COMMISSION WAS TO PREVENT POTENTIAL INJURY BY
STOPPING UNFAIR METHODS OF COMPETITION IN THEIR INCIPIENCY.  FASHION
GUILD V. TRADE COMM'N, 312 U.S. 457, 466.  AND WHEN THE COMMISSION
FINDS, AS IT DID HERE, THAT MISLEADING AND DECEPTIVE STATEMENTS WERE
MADE WITH REFERENCE TO THE QUALITY OF MERCHANDISE IN ACTIVE COMPETITION
WITH OTHER MERCHANDISE, IT IS ALSO AUTHORIZED TO INFER THAT TRADE WILL
BE DIVERTED FROM COMPETITORS WHO DO NOT ENGAGE IN SUCH "UNFAIR
METHODS."  FEDERAL TRADE COMM'N V. WINSTED CO., 258 U.S. 483, 493.  THE
FINDINGS OF THE COMMISSION IN THIS CASE SHOULD HAVE BEEN SUSTAINED
AGAINST THE ATTACK MADE UPON THEM. 

RALADAM CONTENDS HERE, AS IT DID BEFORE THE COMMISSION AND THE
CIRCUIT COURT OF APPEALS, THAT THE JUDGMENT OF THIS COURT IN THE FIRST
CASE MAKES THE ISSUES HERE IN CONTROVERSY RES JUDICATA, AND THEREFORE
BARS THESE PROCEEDINGS.  IT ALSO CONTENDS THAT THE DENIAL BY THIS COURT
AND THE CIRCUIT COURT OF APPEALS IN THE EARLIER PROCEEDINGS, OF THE
COMMISSION'S MOTION TO OFFER ADDITIONAL EVIDENCE WITH RESPECT TO
COMPETITORS AND INJURY TO COMPETITION, SHOULD HAVE A LIKE EFFECT.  WE
THINK THESE CONTENTIONS ARE WITHOUT MERIT, AND THEREFORE AGREE WITH THE
COURT BELOW IN ITS DETERMINATION THAT A DECISION ON THE MERITS WAS
APPROPRIATE. 

THE RESPONDENT HAS NOT SOUGHT IN THIS COURT TO SUSTAIN THE JUDGMENT
OF THE COURT BELOW ON ANY OTHER GROUND.  ACCORDINGLY, THE JUDGMENT IS
REVERSED WITH DIRECTIONS THAT THE ORDER OF THE FEDERAL TRADE COMMISSION
BE AFFIRMED.  REVERSED. 
..END :





MUNICIPAL INVESTORS V. BIRMINGHAM, 316 U.S. 153 


NO. 755.  ARGUED APRIL 1, 1942.  - DECIDED APRIL 27, 1942.  - 298 MICH.
314, 299 N.W. 90, AFFIRMED. 


1.  WHEN ASKED TO DECIDE WHETHER A CONTRACT HAS BEEN IMPAIRED BY STATE
LEGISLATION, IN VIOLATION OF THE CONTRACT CLAUSE OF THE CONSTITUTION,
THIS COURT FIRST ASCERTAINS WHETHER THE ALLEGED CONTRACT EXISTS, EVEN
THOUGH, IN SO DOING, IT MUST DETERMINE QUESTIONS OF STATE LAW WHICH
HAVE NOT BEEN DECIDED BY THE STATE COURT.  P. 157. 

2.  PROVISIONS IN A MUNICIPAL CHARTER FOR MAKING "AN ADDITIONAL PRO
RATA ASSESSMENT" TO SUPPLY THE DEFICIENCY WHEN ANY SPECIAL ASSESSMENT
SHALL "PROVE INSUFFICIENT" TO PAY FOR THE IMPROVEMENT FOR WHICH IT WAS
LEVIED, AND DECLARING THAT THE SPECIAL ASSESSMENT DISTRICT BONDS ISSUED
TO PAY FOR AN IMPROVEMENT SHALL "BE PAYABLE OUT OF THE SPECIAL
ASSESSMENT DISTRICT FUND WHEN THE ASSESSMENT IS COLLECTED"; TOGETHER
WITH PROVISIONS IN THE BONDS WHEREBY THE MUNICIPALITY PROMISES TO PAY
THE PRINCIPAL AND INTEREST "FROM THE SPECIAL ASSESSMENT FUND CREATED
FOR THE PURPOSE," AND PLEDGES ITS FULL FAITH AND CREDIT FOR THE PAYMENT
OF EACH BOND "FROM THE SPECIAL ASSESSMENT FUND CREATED FOR THE PURPOSE
WHEN THE SAME SHALL HAVE BEEN COLLECTED," DO NOT ESTABLISH A
CONTRACTUAL RIGHT IN THE BONDHOLDERS TO REQUIRE THAT THE MUNICIPALITY,
IN ORDER TO MEET DEFICIENCIES IN THE COLLECTION OF ASSESSMENTS, SHALL
RE-ASSESS LOTS IN THE IMPROVEMENT DISTRICT WHICH HAVE BEEN SOLD FOR NON
PAYMENT OF THE ORIGINAL ASSESSMENTS.  P. 158. 

MUNICIPAL INVESTORS ASSOCIATION V. BIRMINGHAM ET AL. 

APPEAL FROM THE SUPREME COURT OF MICHIGAN. 

APPEAL FROM A JUDGMENT REFUSING A WRIT OF MANDAMUS TO COMPEL THE CITY
OF BIRMINGHAM TO LEVY AN ADDITIONAL SPECIAL ASSESSMENT ON LAND IN A
SPECIAL IMPROVEMENT DISTRICT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL CHALLENGES A DECISION OF THE SUPREME COURT OF MICHIGAN,
WHICH UPHELD THE CONSTITUTIONALITY OF MICHIGAN STATUTES  FN1
EXTINGUISHING UNMATURED SPECIAL ASSESSMENTS, TAX LIENS OR OTHER
ENCUMBRANCES ON LAND SOLD FOR TAX DELINQUENCY, AND WHICH THEREFORE
REFUSED A WRIT OF MANDAMUS TO COMPEL THE CITY OF BIRMINGHAM TO LEVY AN
ADDITIONAL SPECIAL ASSESSMENT ON LAND SO SOLD, TO PAY DEFAULTED PAVING
BONDS ISSUED IN 1928 BY ITS PREDECESSOR, THE VILLAGE OF BIRMINGHAM. 
298 MICH. 314, 299 N.W. 90.  THE APPELLANT, MUNICIPAL INVESTORS
ASSOCIATION, AS HOLDER OF THESE BONDS, CLAIMS TO HAVE A CONTRACT RIGHT
UNDER THE LAW OF MICHIGAN IN 1928 TO REQUIRE SUCH AN ADDITIONAL
ASSESSMENT, AND ASSERTS THAT THE SUBSEQUENT MICHIGAN STATUTES CONSTRUED
TO PREVENT THE LEVY IMPAIR THE OBLIGATION OF ITS CONTRACT CONTRARY TO
ARTICLE I, SEC. 10 OF THE UNITED STATES CONSTITUTION. 

DETERMINATION OF THIS COURT'S JURISDICTION OF THE APPEAL WAS
POSTPONED TO THE HEARING OF THE CASE UPON THE MERITS.  WE THINK THAT
THE CONSTITUTIONALITY OF THE TWO 1937 STATUTES UPHELD BY THE MICHIGAN
SUPREME COURT WAS SUFFICIENTLY AND SEASONABLY DRAWN IN QUESTION IN
APPELLANT'S REPLY, AND THAT THE JURISDICTIONAL REQUIREMENTS OF SEC. 237
OF THE JUDICIAL CODE (28 U.S.C. SEC. 344) ARE SATISFIED.  APPELLANT
CHALLENGED THE ACTS AS VIOLATIVE OF THE CONTRACT CLAUSE.  BUT WE FIND
IT UNNECESSARY TO CONSIDER THE EFFECT OR VALIDITY OF THESE STATUTES,
FOR WE THINK THE APPELLANT HAS FAILED TO ESTABLISH ANY CONTRACT RIGHT
TO AN ADDITIONAL ASSESSMENT AFTER A SALE TO ENFORCE AN ASSESSMENT LIEN
UNDER THE PREEXISTING MICHIGAN LAW, IN FORCE WHEN THE BONDS WERE
ISSUED. 

THE DECISION REFUSING MANDAMUS FOR AN ADDITIONAL ASSESSMENT WAS
ENTERED ON THE PLEADINGS.  THESE DISCLOSE THAT THE VILLAGE OF
BIRMINGHAM, IN ORDER TO PAY THE COST OF PAVING CERTAIN STREETS, TOOK
PROCEEDINGS IN 1928 TO ASSESS 23.4% OF THE COST TO THE VILLAGE AT
LARGE, AND 76.6% TO THE PROPERTY ABUTTING THE IMPROVEMENT, SPECIAL
ASSESSMENT DISTRICT NO. 146.  THE PROPERTY ASSESSMENT WAS PAYABLE IN
FIVE EQUAL ANNUAL INSTALLMENTS COMMENCING WITH 1928.  OF ONE HUNDRED
AND TEN PARCELS IN DISTRICT NO. 146, ABOUT ONE HUNDRED NEVER PAID THEIR
SHARES OF THE ASSESSMENT, WERE OFFERED FOR SALE FOR THESE AND OTHER
UNPAID TAXES AT THE ANNUAL TAX SALE OF 1938, AND WERE BID IN BY THE
STATE OF MICHIGAN.  THEY WERE NOT REDEEMED, AND WERE LATER SOLD BY THE
STATE.  ABOUT TEN PARCELS IN THE DISTRICT PAID THEIR SHARES OF THE
PAVING ASSESSMENT AND HAVE NEVER BEEN SOLD FOR TAXES. 

IN ANTICIPATION OF THE COLLECTION OF THIS SPECIAL ASSESSMENT THE
VILLAGE HAD ISSUED IN 1928 SEVENTEEN ANNUALLY MATURING SERIAL 5 1/4%
BONDS.  OF THESE, NO. 1 TO NO. 7 APPEAR TO HAVE BEEN PAID, NO. 8 TO NO.
11 WERE REFUNDED, AND NO. 12 TO NO. 17, WHICH ARE HELD BY APPELLANT,
HAVE ALL BEEN IN DEFAULT BOTH AS TO INTEREST AND PRINCIPAL AT LEAST
SINCE OCTOBER 1, 1933.  A NEGLIGIBLE AMOUNT IS ON HAND IN THE SPECIAL
ASSESSMENT FUND, AND NOT OVER 20% OF THE AMOUNT STILL OWING WILL BE
REALIZED FROM THE DISTRICT'S SHARE IN THE PROCEEDS OF THE TAX SALES. 
IN ORDER TO REPLENISH THE FUND, THE APPELLANT SEEKS TO COMPEL THE
DEFENDANTS BY THE LAWS IN FORCE WHEN THE BONDS WERE ISSUED TO LEVY UPON
ALL THE LAND IN THE DISTRICT, INCLUDING THE LOTS PREVIOUSLY SOLD FOR
TAXES AND THE ORIGINAL ASSESSMENT, AN ADDITIONAL ASSESSMENT EQUAL TO
THE UNPAID PRINCIPAL AND INTEREST. 

THE GENERAL ACT UNDER WHICH THE VILLAGE WAS INCORPORATED LISTED AMONG
THE PERMISSIBLE CHARTER POWERS A PROVISION "FOR ASSESSING AND
REASSESSING THE COST, OR ANY PORTION THEREOF, OF ANY PUBLIC IMPROVEMENT
TO A SPECIAL DISTRICT," ACT NO. 278, PUBLIC ACTS OF 1909, SEC. 24(E);
MICH. COMP. LAWS (1929) SEC. 1786(E).  FN2  PURSUANT TO THIS
AUTHORIZATION, SEC. 15 OF CHAPTER XXI OF THE VILLAGE CHARTER PROVIDED:
"SHOULD ANY SPECIAL ASSESSMENT PROVE INSUFFICIENT TO PAY FOR THE
IMPROVEMENT OR WORK FOR WHICH IT WAS LEVIED, AND THE EXPENSES INCIDENT
THERETO, THE COMMISSION MAY MAKE AN ADDITIONAL PRO RATA ASSESSMENT TO
SUPPLY THE DEFICIENCY; AND IN CASE A LARGER AMOUNT SHALL HAVE BEEN
COLLECTED THAN WAS NECESSARY, THE EXCESS SHALL BE REFUNDED RATABLY TO
THOSE BY WHOM IT WAS PAID."  FN3  SECTION 22 OF CHAPTER XX OF THE
CHARTER STATED THAT SPECIAL ASSESSMENT BONDS SHOULD "BE PAYABLE OUT OF
THE SPECIAL ASSESSMENT DISTRICT FUND WHEN THE ASSESSMENT IS
COLLECTED."  IN THE BONDS THEMSELVES THE VILLAGE PROMISED TO PAY THE
PRINCIPAL AND INTEREST, "SAID PRINCIPAL AND INTEREST HOWEVER, BEING
PAYABLE FROM THE SPECIAL ASSESSMENT FUND CREATED FOR THE PURPOSE  ...
THE FULL FAITH AND CREDIT OF THE VILLAGE OF BIRMINGHAM ARE HEREBY
PLEDGED FOR THE PUNCTUAL PAYMENT OF THE PRINCIPAL AND INTEREST OF THIS
BOND FROM THE SPECIAL ASSESSMENT FUND CREATED FOR THE PURPOSE, WHEN THE
SAME SHALL HAVE BEEN COLLECTED." 

THE MICHIGAN SUPREME COURT ASSUMED, WITHOUT DECIDING, THAT THESE
VARIOUS PROVISIONS DID INCLUDE IN THE BONDHOLDERS' CONTRACT A RIGHT TO
ADDITIONAL ASSESSMENTS AFTER A TAX SALE FOR THE PAYMENT OF DEFICIENCIES
ATTRIBUTABLE TO NON-PAYMENT OF VALID PRIOR ASSESSMENTS.  298 MICH. 314,
319, 299 N.W. 90, 92.  AS A CONTRACT MUST EXIST BEFORE IT CAN BE
IMPAIRED, AND AS OUR CONCLUSION AGAINST EXISTENCE OF THE CONTRACT RIGHT
SETTLES THIS CASE, WE FEEL IT PROPER TO CONSIDER ONLY WHETHER THERE WAS
A CONTRACT BETWEEN THE BONDHOLDERS AND THE VILLAGE FOR AN ADDITIONAL
ASSESSMENT ON THE DISTRICT PROPERTY TO MEET DEFICIENCIES, INSTEAD OF
UNDERTAKING THE RESOLUTION OF THE CONSTITUTIONAL ISSUE PRESENTED BY THE
CHALLENGED STATUTES OF MICHIGAN.  WHILE THIS APPROACH FORCES US TO
DECIDE THE MEANING OF MICHIGAN LEGISLATION WITHOUT THE ASSISTANCE OF
THE COURTS OF THAT STATE, IT IS NECESSARY TO DO SO BECAUSE OF THE
OBLIGATION OF THIS COURT TO DETERMINE FOR ITSELF THE BASIC ASSUMPTIONS
UPON WHICH INTERPRETATIONS OF THE FEDERAL CONSTITUTION REST.  FN4 

THE COMPLETE CHARTER OF THE VILLAGE IS NOT BEFORE US.  FROM THE
AUTHORIZED POWER GRANTED BY THE PUBLIC ACT OF 1909 UNDER WHICH IT WAS
ORGANIZED, HOWEVER, FROM THE LANGUAGE IN SEC. 15 OF CHAPTER XXI OF THE
CHARTER PROVIDING FOR "AN ADDITIONAL PRO RATA ASSESSMENT" AND FROM THE
TERMS OF THE BOND, LIMITING ITS PAYMENT TO "THE SPECIAL ASSESSMENT FUND
CREATED FOR THE PURPOSE, WHEN THE SAME SHALL HAVE BEEN COLLECTED," WE
ARE SATISFIED THERE WAS NO CONTRACT TO REASSESS LOTS ONCE SOLD FOR THE
ORIGINAL ASSESSMENT.  IF THE STATED POWERS OF THE VILLAGE TO LEVY AN
ASSESSMENT ON IMPROVEMENT DISTRICT PROPERTY REQUIRED THAT THE LOTS
ASSESSED, AFTER SALE FOR DEFAULT IN THEIR INSTALLMENTS, SHOULD BE
SUBJECT TO AN ADDITIONAL ASSESSMENT TO COVER SUCH DEFICIENCIES, THE
BURDEN MIGHT DEPRESS THEIR VALUE TO A POINT WHERE LITTLE IF ANYTHING
COULD BE REALIZED FOR THE BONDHOLDERS, AND SUCCESSFUL SALE FOR NON
PAYMENT WOULD BE FRUSTRATED.  THIS WOULD CLEARLY BE TRUE WHERE, AS
HERE, A VERY LARGE PROPORTION OF THE ASSESSMENTS WERE DEFAULTED.  A
PROSPECTIVE INVESTOR IN THE BONDS MUST LOOK ULTIMATELY TO THE SALE OF
EACH LOT FOR THE PAYMENT OF THE AMOUNT ASSESSED AGAINST THAT PARTICULAR
PARCEL.  FN5 

WHEN THE ORIGINAL ASSESSMENT PROVES INSUFFICIENT TO PAY FOR THE
IMPROVEMENT.  ASSESSMENT BONDS MAY BE BASED ON UNDERTAKINGS WHEREBY
BENEFITED LANDS MAY BE LIABLE EVEN AFTER THEY WERE SOLD TO PAY THE
ASSESSMENT LIENS UPON THEM TO RECOVER FOR DEFAULTS IN SALES OF OTHER
ASSESSED PROPERTIES.  SEE KADOW V. PAUL, 274 U.S. 175.  BUT IN THE
ABSENCE OF CONTROLLING MICHIGAN LAW, SEC. 15 REPELS SUCH A
CONSTRUCTION.  THE LANGUAGE FALLS FAR SHORT OF SUBJECTING LOTS WHICH
HAVE BEEN SOLD TO PAY TAX OR ASSESSMENT LIENS TO AN ADDITIONAL
ASSESSMENT FOR THE DEFICIT.  SUCH A CONSTRUCTION WOULD DEFEAT THE
REMEDY OF TAX SALES AS A MEANS OF REALIZING THE ASSESSMENT LIEN.  FN6 

THE OPINION OF THE SUPREME COURT OF MICHIGAN DOES NOT DEAL
SPECIFICALLY WITH THE STATUS OF THE LOTS WHICH HAVE NOT BEEN SOLD TO
SATISFY THE ASSESSMENTS.  IN THE ABSENCE OF AN ASSIGNMENT OF ERROR UPON
THAT GROUND, WE EXPRESS NO OPINION THEREON.  AFFIRMED. 

FN1  ACTS NOS. 114, 155, MICH. PUB. ACTS OF 1937. 

FN2  THE SAME ACT STATED THAT "NO VILLAGE SHALL HAVE POWER:  ...  TO
ISSUE ANY BONDS WITHOUT CREATING A SINKING FUND FOR THE PAYMENT OF THE
SAME, EXCEPT SPECIAL ASSESSMENT BONDS WHICH ARE A CHARGE UPON A SPECIAL
DISTRICT CREATED FOR THE PAYMENT THEREOF, AND SERIAL BONDS PAYABLE
ANNUALLY."  ACT NO. 278, PUBLIC ACTS OF 1909, SEC. 26(K); MICH.  COMP.
LAWS (1929) SEC. 1788(K). 

FN3  SECTION 18 OF CHAPTER X OF THE CHARTER OF THE CITY OF
BIRMINGHAM, ADOPTED IN 1933, MAKES PROVISION FOR AN ADDITIONAL
ASSESSMENT TO MEET INSUFFICIENCIES IN SPECIAL ASSESSMENTS "FOR ANY
CAUSE, MISTAKE OR INADVERTENCE."  SECTION 12 OF CHAPTER XVIII MAKES
THESE PROVISIONS EFFECTIVE FOR THE VILLAGE DEBTS WHERE LEGALLY
APPLICABLE.  OBVIOUSLY, UNLESS THE VILLAGE CHARTER PROVISION IN EFFECT
WHEN THE BONDS WERE ISSUED AUTHORIZED ADDITIONAL ASSESSMENTS TO MEET
DEFICIENCIES, THE CITY CLAUSE COULD NOT ADD THAT BURDEN TO THE LOTS. 
IT WOULD BE APPLICABLE ONLY IF IT WERE A MEANS OF ENFORCING AN EXISTING
RIGHT.  CF. IN RE FARM DRAINAGE DIST. NO. 1, WAUPACA COUNTY, 232 WIS.
455, 460, 461, 287 N.W. 806, 809 

FN4  APPLEBY V. NEW YORK, 271 U.S. 364, 379; KERSH LAKE DIST. V.
JOHNSON, 309 U.S. 485, 489-490; HALE V. STATE BOARD, 302 U.S. 95, 101. 

FN5  A GENERAL LIEN UPON LANDS IN A DISTRICT HAS BEEN HELD TO BE
CREATED BY SUITABLE STATUTORY PROVISIONS.  AMERICAN SECURITIES CO. V.
FORWARD, 220 CAL. 566, 32 P.2D 343. 

IN DRAINAGE AND IRRIGATION DISTRICTS THE CASES DIFFER AS TO WHETHER
BONDS WITH THE DISTRICT AS OBLIGOR ARE THE GENERAL OBLIGATIONS OF THE
DISTRICT OR PAYABLE ONLY FROM THE SPECIAL ASSESSMENTS AGAINST EACH
PARCEL. 

SEPARATE OBLIGATIONS:  INTERSTATE TRUST CO. V. MONTEZUMA DISTRICT, 66
COLO. 219, 181 P. 123; STATE V. BOARD OF COMMISSIONERS, 89 MONT. 37,
95, 296 P. 1, 18; NELSON V. BOARD OF COMM'RS, 62 UTAH 218, 218 P. 952. 

GENERAL OBLIGATIONS:  AMERICAN FALLS RESERVOIR DIST. V. THRALL, 39
IDAHO 105, 124, 228 P. 236, 241; NOBLE V. YANCEY, 116 ORE.  356, 241 P.
335; STATE EX REL. CLANCY V. COLUMBIA IRRIGATION DIST., 121 WASH. 79,
87, 208 P. 27, 30. 

FN6 COURTS OF OTHER STATES HAVE CONSIDERED SIMILAR QUESTIONS.  HENRY
WILCOX & SON V. RIVERVIEW DIST., 93 COLO. 115, 25 P.2D 172; REYNARD V.
CALDWELL, 55 IDAHO 342, 42 P.2D 292; HARTZ V. TRUCKENMILLER, 228 IOWA
819, 293 N.W. 568; STATE EX REL. JOHNSON V. DAYTON, 200 WASH. 91, 93
P.2D 909.  BUT CF. STATE EX REL. FRAZER V. HOLT COUNTY COURT, 135 MO.
533, 37 S.W. 521; IN RE FARM DRAINAGE DIST. NO. 1, WAUPACA COUNTY, 232
WIS. 455, 287 N.W. 806(DISTRICT WAS PROMISOR). 
..END :












GEORGIA V. EVANS, 316 U.S. 159 


NO. 872.  ARGUED APRIL 14, 1942.  - DECIDED APRIL 27, 1942.  - 123 F.2D
57, REVERSED. 


A STATE IS A "PERSON" WITHIN THE MEANING OF SEC. 7 OF THE SHERMAN ACT
AND ENTITLED THEREBY TO SUE FOR TREBLE DAMAGES WHEN, AS A PURCHASER OF
ASPHALT, IT IS INJURED BY A COMBINATION SUPPRESSING COMPETITION AND
FIXING PRICES OF THAT COMMODITY IN INTERSTATE COMMERCE.  UNITED STATES
V. COOPER CORP., 312 U.S. 600, DISTINGUISHED.  P. 162. 

GEORGIA V. EVANS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 315 U.S. 792, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING AN ACTION FOR TREBLE DAMAGES UNDER SEC. ( OF THE SHERMAN
ACT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

COMPLAINING THAT THE RESPONDENTS HAD COMBINED TO FIX PRICES AND
SUPPRESS COMPETITION IN THE SALE OF ASPHALT IN VIOLATION OF THE SHERMAN
LAW, THE STATE OF GEORGIA, WHICH EACH YEAR PURCHASES LARGE QUANTITIES
OF ASPHALT FOR USE IN THE CONSTRUCTION OF PUBLIC ROADS, BROUGHT THIS
SUIT TO RECOVER TREBLE DAMAGES UNDER SEC. 7 OF THAT ACT, 26 STAT. 209,
210; 15 U.S.C. SEC. 15.  ACCORDING TO THAT SECTION, "ANY PERSON WHO
SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY ANY OTHER PERSON OR
CORPORATION BY REASON OF ANYTHING FORBIDDEN OR DECLARED TO BE UNLAWFUL
BY THIS ACT, MAY SUE THEREFOR IN ANY DISTRICT COURT OF THE UNITED
STATES  ...  , AND SHALL RECOVER THREEFOLD THE DAMAGES BY HIM SUSTAINED
...  "  SECTION 8 PROVIDES THAT "THE WORD 'PERSON,' OR 'PERSONS,'
WHEREVER USED IN THIS ACT SHALL BE DEEMED TO INCLUDE CORPORATIONS AND
ASSOCIATIONS EXISTING UNDER OR AUTHORIZED BY THE LAWS OF EITHER THE
UNITED STATES, THE LAWS OF ANY OF THE TERRITORIES, THE LAWS OF ANY
STATE, OR THE LAWS OF ANY FOREIGN COUNTRY."  26 STAT. 209, 210; 15
U.S.C. SEC. 7. 

THE DISTRICT COURT DISMISSED THE SUIT ON THE GROUND THAT THE STATE OF
GEORGIA IS NOT A "PERSON" UNDER SEC. 7 OF THE ACT.  DEEMING THE
QUESTION CONTROLLED BY UNITED STATES V. COOPER CORP., 312 U.S. 600, THE
CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED THE JUDGMENT. 
123 F.2D 57.  THE IMPORTANCE OF THE QUESTION IN THE ENFORCEMENT OF THE
SHERMAN LAW IS ATTESTED BY THE FACT THAT THIRTY-FOUR STATES, AS FRIENDS
OF THE COURT, SUPPORTED GEORGIA'S REQUEST THAT THE DECISION BE REVIEWED
ON CERTIORARI.  AND SO WE BROUGHT THE CASE HERE. 

THE ONLY QUESTION IN THE COOPER CASE WAS "WHETHER, BY THE USE OF THE
PHRASE 'ANY PERSON,' CONGRESS INTENDED TO CONFER UPON THE UNITED STATES
THE RIGHT TO MAINTAIN AN ACTION FOR TREBLE DAMAGES AGAINST A VIOLATOR
OF THE ACT."  312 U.S. AT 604.  EMPHASIZING THAT THE UNITED STATES HAD
CHOSEN FOR ITSELF THREE POTENT WEAPONS FOR ENFORCING THE ACT - NAMELY,
CRIMINAL PROSECUTION UNDER SECS. 1, 2, AND 3, INJUNCTION UNDER SEC. 4,
AND SEIZURE OF PROPERTY UNDER SEC. 6 - , THE COURT CONCLUDED THAT
CONGRESS DID NOT ALSO GIVE THE UNITED STATES THE REMEDY OF A CIVIL
ACTION FOR DAMAGES.  THIS INTERPRETATION WAS DRAWN FROM THE STRUCTURE
OF THE ACT, ITS LEGISLATIVE HISTORY, THE PRACTICE UNDER IT, AND PAST
JUDICIAL EXPRESSIONS.  IT WAS NOT HELD THAT THE WORD "PERSON,"
ABSTRACTLY CONSIDERED, COULD NOT INCLUDE A GOVERNMENTAL BODY.  WHETHER
THE WORD "PERSON" OR "CORPORATION" INCLUDES A STATE OR THE UNITED
STATES DEPENDS UPON ITS LEGISLATIVE ENVIRONMENT.  OHIO V. HELVERING,
292 U.S. 360, 370.  THE COOPER CASE RECOGNIZED THAT "THERE IS NO HARD
AND FAST RULE OF EXCLUSION.  THE PURPOSE, THE SUBJECT MATTER, THE
CONTEXT, THE LEGISLATIVE HISTORY, AND THE EXECUTIVE INTERPRETATION OF
THE STATUTE ARE AIDS TO CONSTRUCTION WHICH MAY INDICATE AN INTENT, BY
THE USE OF THE TERM, TO BRING STATE OR NATION WITHIN THE SCOPE OF THE
LAW."  312 U.S. AT 604-605.  CONSIDERING ALL THESE FACTORS, THE COURT
FOUND THAT CONGRESS DID NOT GIVE TO THE GOVERNMENT, IN ADDITION TO THE
OTHER REMEDIES EXCLUSIVELY PROVIDED FOR IT, THE REMEDY OF TREBLE
DAMAGES - THE ONLY REMEDY ORIGINALLY GIVEN TO VICTIMS, OTHER THAN THE
GOVERNMENT, OF PRACTICES PROSCRIBED BY THE ACT. 

THE CONSIDERATIONS WHICH LED TO THIS CONSTRUCTION ARE ENTIRELY
LACKING HERE.  THE STATE OF GEORGIA, UNLIKE THE UNITED STATES, CANNOT
PROSECUTE VIOLATIONS OF THE SHERMAN LAW.  FN1  NOR CAN IT SEIZE
PROPERTY TRANSPORTED IN DEFIANCE OF IT.  AND AN AMENDMENT WAS NECESSARY
TO PERMIT SUIT FOR AN INJUNCTION BY OTHERS THAN THE UNITED STATES.  SEE
MINNESOTA V. NORTHERN SECURITIES CO., 194 U.S. 48, 70-71, AND ACT OF
OCTOBER 15, 1914, C. 323, SEC. 16, 38 STAT. 730, 737.  IF THE STATE IS
NOT A "PERSON" WITHIN SEC. 8, THE SHERMAN LAW LEAVES IT WITHOUT ANY
REDRESS FOR INJURIES RESULTING FROM PRACTICES OUTLAWED BY THAT ACT. 

THE QUESTION NOW BEFORE US, THEREFORE, IS WHETHER NO REMEDY WHATEVER
IS OPEN TO A STATE WHEN IT IS THE IMMEDIATE VICTIM OF A VIOLATION OF
THE SHERMAN LAW.  WE CAN PERCEIVE NO REASON FOR BELIEVING THAT CONGRESS
WANTED TO DEPRIVE A STATE, AS PURCHASER OF COMMODITIES SHIPPED IN
INTERSTATE COMMERCE, OF THE CIVIL REMEDY OF TREBLE DAMAGES WHICH IS
AVAILABLE TO OTHER PURCHASERS WHO SUFFER THROUGH VIOLATION OF THE ACT. 
WE HAVE ALREADY HELD THAT SUCH A REMEDY IS AFFORDED TO A SUBDIVISION OF
THE STATE, A MUNICIPALITY, WHICH PURCHASES PIPES FOR USE IN
CONSTRUCTING A WATERWORKS SYSTEM.  CHATTANOOGA FOUNDRY V. ATLANTA, 203
U.S. 390.  REASON BALKS AGAINST IMPLYING DENIAL OF SUCH A REMEDY TO A
STATE WHICH PURCHASES MATERIALS FOR USE IN BUILDING PUBLIC HIGHWAYS. 
NOTHING IN THE ACT, ITS HISTORY, OR ITS POLICY, COULD JUSTIFY SO
RESTRICTIVE A CONSTRUCTION OF THE WORD "PERSON" IN SEC. 7 AS TO EXCLUDE
A STATE.  SUCH A CONSTRUCTION WOULD DENY ALL REDRESS TO A STATE, WHEN
MULCTED BY A VIOLATOR OF THE SHERMAN LAW, MERELY BECAUSE IT IS A
STATE.  FN2 REVERSED. 

FN1  IN 1914 CONGRESS REJECTED AN AMENDMENT TO AUTHORIZE THE ATTORNEY
GENERAL OF ANY STATE TO INSTITUTE A CRIMINAL PROCEEDING, IN THE NAME OF
THE UNITED STATES, TO ENFORCE THE ANTI-TRUST LAWS.  51 CONG. REC.
14519, 14527. 

FN2  WE PUT TO ONE SIDE THE SUGGESTION THAT IF THE SHERMAN LAW GIVES
A STATE A RIGHT OF ACTION, ARTICLE III OF THE CONSTITUTION WOULD GIVE
THIS COURT ORIGINAL JURISDICTION OF SUCH A SUIT IF A STATE SAW FIT TO
PURSUE ITS REMEDY HERE.  IF THE DISTRICT COURTS ARE GIVEN JURISDICTION,
A STATE MAY BRING SUIT THERE EVEN THOUGH UNDER ARTICLE III SUIT MIGHT
BE BROUGHT HERE.  UNITED STATES V. CALIFORNIA, 297 U.S. 175, 187. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE ROBERTS: 

I AGREE THAT THIS CASE IS NOT RULED BY OUR DECISION IN UNITED STATES
V. COOPER CORP., 312 U.S. 600.  CERTAIN OF THE REASONS ADDUCED IN
SUPPORT OF THAT DECISION ARE INAPPLICABLE HERE.  I AM, NEVERTHELESS, OF
OPINION THAT THE JUDGMENT SHOULD BE AFFIRMED.  I BASE THIS CONCLUSION
UPON THE PLAIN WORDS OF THE SHERMAN ACT.  SECTION 7 PROVIDES THAT "ANY
PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY ANY OTHER
PERSON," BY ANY ACTION FORBIDDEN BY THE STATUTE, MAY SUE AND RECOVER
DAMAGES THEREFOR.  SECTION 8 PROVIDES THAT THE WORD "PERSON" OR
"PERSONS," WHEREVER USED IN THE ACT, "SHALL BE DEEMED TO INCLUDE
CORPORATIONS AND ASSOCIATIONS EXISTING UNDER OR AUTHORIZED BY THE LAWS
OF EITHER THE UNITED STATES, THE LAWS OF ANY OF THE TERRITORIES, THE
LAWS OF ANY STATE, OR THE LAWS OF ANY FOREIGN COUNTRY." 

IF THE WORD "PERSON" IS TO INCLUDE A STATE AS PLAINTIFF, IT MUST
EQUALLY INCLUDE A STATE AS A DEFENDANT OR THE LANGUAGE USED IS
MEANINGLESS.  MOREOVER, WHEN IN SEC. 8 CONGRESS TOOK THE TROUBLE TO
INCLUDE AS "PERSONS" CORPORATIONS ORGANIZED UNDER THE LAWS OF A STATE,
THE INFERENCE IS PLAIN THAT THE STATE ITSELF WAS NOT TO BE DEEMED A
CORPORATION ORGANIZED UNDER ITS OWN LAWS, ANY MORE THAN THE UNITED
STATES IS TO BE DEEMED A CORPORATION ORGANIZED UNDER ITS OWN LAWS. 

IT IS NOT OUR FUNCTION TO SPECULATE AS TO WHAT CONGRESS PROBABLY
INTENDED BY THE WORDS IT USED, OR TO ENFORCE THE SUPPOSED POLICY OF THE
ACT BY ADDING A PROVISION WHICH CONGRESS MIGHT HAVE INCORPORATED BUT
OMITTED. 
..END :





















WILMINGTON CO. V. HELVERING, 316 U.S. 164 


NO. 775.  ARGUED APRIL 10, 1942.  - DECIDED APRIL 27, 1942.  - 124 F.2D
156, REVERSED. 


1.  A FINDING OF THE BOARD OF TAX APPEALS THAT CERTAIN SALES OF STOCK
BY THE TAXPAYER IN THIS CASE WERE ORDINARY SALES AND NOT "SHORT" SALES,
WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS THEREFORE CONCLUSIVE.  P.
167. 

2.  THE CRITERIA WHICH THE BOARD EMPLOYED IN DETERMINING WHETHER THE
SALES OF STOCK IN THIS CASE WERE "SHORT" SALES COMPLIED WITH THE LEGAL
PRINCIPLES ANNOUNCED IN PROVOST V. UNITED STATES, 269 U.S. 443.  P.
168. 

3.  THE CIRCUIT COURT OF APPEALS IS AUTHORIZED BY STATUTE TO MODIFY
OR REVERSE A DECISION OF THE BOARD OF TAX APPEALS ONLY IF IT IS "NOT IN
ACCORDANCE WITH LAW."  P. 168. 

WILMINGTON TRUST CO., EXECUTOR, V. HELVERING, COMMISSIONER OF INTERNAL
REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 315 U.S. 789, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 42 B.T.A. 173, REDETERMINING A DEFICIENCY IN
INCOME TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION PRESENTED BY THIS CASE IS WHETHER CERTAIN SALES OF
SHARES OF STOCK MADE BY THE TAXPAYER, PETITIONER'S DECEDENT, WERE
"SHORT" SALES OR SALES OF "LONG" STOCK.  IF THEY WERE NOT "SHORT"
SALES, THEN THE TAXPAYER WAS JUSTIFIED IN DEDUCTING FROM DIVIDENDS
CREDITED TO THE "LONG" SHARES THE AMOUNT OF DIVIDENDS CHARGED TO THE
SHARES SOLD. 

THE TAXPAYER MAINTAINED SEVERAL ACCOUNTS WITH A BROKERAGE HOUSE -
"REGULAR," "SPECIAL," AND "SHORT."  THE "REGULAR" AND "SPECIAL"
ACCOUNTS WERE "LONG" ACCOUNTS.  DURING THE YEARS 1934 AND 1935 THE
TAXPAYER'S "LONG" ACCOUNTS WERE CREDITED WITH DIVIDENDS ON CERTAIN
SHARES.  DURING THE SAME YEARS, HER "SHORT" ACCOUNT WAS CHARGED WITH
DIVIDENDS ON SHARES OF THE SAME STOCK ISSUES.  THE TAXPAYER DID NOT
INCLUDE IN HER INCOME TAX RETURNS FOR 1934 AND 1935 THE DIVIDENDS
CREDITED TO HER "LONG" ACCOUNTS - ON THE THEORY THAT THE AMOUNT OF
STOCK WHICH SHE OWNED WAS NOT THE NUMBER OF SHARES CREDITED TO HER IN
THE "LONG" ACCOUNTS, BUT ONLY THE NUMBER OF SHARES BY WHICH HER "LONG"
POSITION EXCEEDED HER "SHORT" POSITION IN EACH OF THE STOCK ISSUES HELD
IN THE SEVERAL ACCOUNTS.  THE COMMISSIONER ASSESSED DEFICIENCIES ON THE
THEORY THAT THE SALES MADE THROUGH THE "SHORT" ACCOUNT WERE IN FACT
"SHORT" SALES, AND THAT THE DIVIDENDS CHARGED TO THE "SHORT" ACCOUNT
REPRESENTED ADDITIONAL COST OF THE SHARES AND COULD NOT BE OFFSET
AGAINST THE DIVIDENDS CREDITED TO THE "LONG" ACCOUNTS.  ACCORDINGLY, HE
RULED THAT THE TAXPAYER WAS TAXABLE ON ALL OF THE DIVIDENDS CREDITED TO
HER "LONG" ACCOUNTS.  ON A PETITION FOR REVIEW, THE BOARD OF TAX
APPEALS FOUND THAT THE SALES MADE THROUGH THE "SHORT" ACCOUNT WERE
SALES OF SHARES HELD IN THE TAXPAYER'S "LONG" ACCOUNTS.  IT THEREFORE
HELD THAT THE DIVIDENDS CHARGED TO THE "SHORT" ACCOUNT SHOULD BE OFFSET
AGAINST THE DIVIDEND CREDITS.  42 B.T.A. 173.  THE CIRCUIT COURT OF
APPEALS REVERSED 124 F.2D 156.  WE GRANTED THE PETITION FOR CERTIORARI,
LIMITED TO THE QUESTION WHETHER THE SALES IN THE "SHORT" ACCOUNT WERE
IN FACT "SHORT" SALES, BECAUSE THE ACTION OF THE CIRCUIT COURT OF
APPEALS IN SETTING ASIDE THE FINDINGS OF THE BOARD ON THAT ISSUE WAS
SEEMINGLY ERRONEOUS UNDER THE RULE OF SUCH CASES AS HELVERING V.
LAZARUS & CO., 308 U.S. 252. 

THE FINDINGS OF THE BOARD WERE SUBSTANTIALLY AS FOLLOWS:  THE SALES
IN QUESTION WERE SALES OF SHARES OF WHICH THE TAXPAYER HELD AN EQUAL OR
GREATER NUMBER OF THE SAME KIND IN HER "LONG" ACCOUNTS.  IN EVERY SUCH
INSTANCE THE BROKER, ACTING UNDER AUTHORITY FROM THE TAXPAYER TO
CONSIDER ALL HER ACCOUNTS AS A UNIT, TREATED THE SALES THROUGH THE
"SHORT" ACCOUNT AS SALES OF THE TAXPAYER'S "LONG" SHARES.  NONE OF
THESE SALES WAS LABELED AS A "SHORT" SALE.  THE BROKER REQUIRED NO
MARGIN AND CHARGED NO "SHORT" SALE TAX.  HE CREDITED THE "SHORT"
ACCOUNT WITH THE PROCEEDS AND MADE AN ENTRY THEREIN SHOWING DELIVERY OF
THE SHARES AT THE TIME OF THE EXECUTION OF THE SALES TO THE PURCHASER. 
IN NO SUCH CASE DID THE BROKER BORROW ANY STOCK FROM OTHER BROKERS OR
CUSTOMERS.  ORDERS WERE EXECUTED ON THE STOCK EXCHANGE IN THE REGULAR
WAY, AND DELIVERY WAS MADE ON THE NEXT FULL BUSINESS DAY FROM
CERTIFICATES IN "STREET" NAMES HELD BY THE BROKER'S NEW YORK
CORRESPONDENTS.  THOSE "STREET" CERTIFICATES INCLUDED SHARES HELD BY
THE BROKER FOR THE TAXPAYER, THOUGH NONE OF THEM WAS SPECIFICALLY
DESIGNATED AS BELONGING TO THE TAXPAYER.  THE TAXPAYER WAS ALLOWED
INTEREST ON THE PROCEEDS OF SALE.  DIVIDENDS WERE COLLECTED FOR THE
TAXPAYER ONLY ON THE NUMBER OF SHARES BY WHICH HER "LONG" POSITION
EXCEEDED HER "SHORT" POSITION.  ON THE OTHER HAND, WHENEVER THE
TAXPAYER'S "LONG" ACCOUNTS CONTAINED NO SHARES OF THE KIND SOLD, THE
BROKER EXECUTED THE SALE AS A "SHORT" SALE, REQUIRED THE CUSTOMARY
MARGIN, CHARGED THE "SHORT" SALE TAX, AND MADE DELIVERY FROM BORROWED
STOCK.  ON THE BASIS OF SUCH FACTS, THE BOARD FOUND THAT "THE SALES IN
QUESTION WERE INTENDED TO BE AND WERE ACTUALLY EXECUTED AS ORDINARY
SALES, OR SALES OF SHARES HELD" IN THE TAXPAYER'S "LONG ACCOUNTS." 

IN OVERTURNING THAT FINDING OF FACT, THE CIRCUIT COURT OF APPEALS
LAID GREAT EMPHASIS ON THE MANNER IN WHICH THE TRANSACTIONS WERE
ENTERED ON THE TAXPAYER'S BOOKS.  IT ALSO NOTED THAT GAINS OR LOSSES
WERE NOT REPORTED AT THE MOMENT OF THE SALES, BUT ONLY WHEN THE
COVERING TRANSACTION WAS COMPLETED, AND THAT THE CERTIFICATES USED IN
COMPLETING THE SALES WERE IN NO WAY DESIGNATED AS BELONGING TO THE
TAXPAYER.  AND IT ALSO STATED THAT IT COULD NOT BE SAID THAT THE BROKER
DID NOT USE BORROWED STOCK TO MAKE DELIVERIES ON THE "SHORT" SALES.  ON
THAT ASPECT OF THE CASE, RESPONDENT LAYS PRIMARY EMPHASIS.  THE
CONTENTION IS THAT THE TAXPAYER'S "LONG" STOCK WAS NOT "DELIVERED" IN
CONSUMMATION OF THE SALES IN THE "SHORT" ACCOUNT, SINCE THE BROKER
MERELY MADE DELIVERY OUT OF CERTIFICATES IN "STREET" NAMES HELD BY IT
OR FOR ITS ACCOUNT, INSTEAD OF BORROWING FROM OTHER BROKERS, AND SINCE
NONE OF THOSE "STREET" CERTIFICATES WAS IN ANY WAY DESIGNATED AS THE
TAXPAYER'S.  IT IS URGED THAT, THE FACTS BEING UNDISPUTED, THE QUESTION
OF WHETHER STOCK WAS BORROWED TO COMPLETE THE SALES WAS A QUESTION OF
LAW AS RESPECTS WHICH THE BOARD DID NOT HAVE THE FINAL SAY. 

THE TRUE CHARACTER OF THE "SHORT" ACCOUNT IS A QUESTION OF FACT TO BE
DETERMINED IN THE LIGHT OF THE OUTWARD OR MANIFESTED INTENTION OF THE
TAXPAYER AND THE WAY IN WHICH THE ACCOUNT WAS ACTUALLY MANAGED.  THE
DESIGNATION OF THE ACCOUNTS, THE FACT THAT, AS A MATTER OF BOOKKEEPING,
SALES MADE THROUGH THE "SHORT" ACCOUNT APPARENTLY WERE NOT REFLECTED IN
THE "LONG" ACCOUNTS, THE METHOD OF REPORTING GAINS OR LOSSES ARE SOME
EVIDENCE TO SUPPORT THE CONCLUSION OF THE COURT BELOW.  BUT THERE ARE
NUMEROUS OTHER CIRCUMSTANCES WHICH LOOK THE OTHER WAY.  THEY ARE
EMBRACED IN THE SEVERAL SUBSIDIARY FINDINGS WHICH THE BOARD MADE AND
WHICH WE HAVE ENUMERATED.  THOSE FINDINGS ARE SUPPORTED BY SUBSTANTIAL
EVIDENCE AND ARE ABUNDANT JUSTIFICATION FOR THE BOARD'S ULTIMATE
FINDING THAT THE SALES MADE THROUGH THE "SHORT" ACCOUNT WERE ORDINARY
SALES.  IT IS THE FUNCTION OF THE BOARD, NOT THE CIRCUIT COURT OF
APPEALS, TO WEIGH THE EVIDENCE, TO DRAW INFERENCES FROM THE FACTS, AND
TO CHOOSE BETWEEN CONFLICTING INFERENCES.  THE COURT MAY NOT SUBSTITUTE
ITS VIEW OF THE FACTS FOR THAT OF THE BOARD.  WHERE THE FINDINGS OF THE
BOARD ARE SUPPORTED BY SUBSTANTIAL EVIDENCE THEY ARE CONCLUSIVE. 
HELVERING V. LAZARUS & CO., SUPRA; HELVERING V. KEHOE, 309 U.S. 277,
AND CASES CITED.  UNDER THE STATUTE, THE COURT MAY MODIFY OR REVERSE
THE DECISION OF THE BOARD ONLY IF IT IS "NOT IN ACCORDANCE WITH LAW." 
44 STAT. 110, 26 U.S.C. SEC. 1141(C)(1).  IN THIS CASE THE CRITERIA
WHICH THE BOARD EMPLOYED IN DETERMINING WHETHER THE SALES WERE "SHORT"
SALES COMPLIED WITH THE LEGAL PRINCIPLES ANNOUNCED IN PROVOST V. UNITED
STATES, 269 U.S. 443.  REVERSED. 
..END :




CHICAGO V. FIELDCREST DAIRIES, 316 U.S. 168 


NO. 706.  ARGUED MARCH 30, 31, 1942.  - DECIDED APRIL 27, 1942.  - 122
F.2D 132, REVERSED. 


THE ISSUES INVOLVED IN A SUIT IN THE DISTRICT COURT BY A MICHIGAN
DAIRY CORPORATION AGAINST AN ILLINOIS CITY AND ITS OFFICIALS WERE:
FIRST, WHETHER A CITY ORDINANCE REQUIRING THAT MILK BE DELIVERED IN
"STANDARD MILK BOTTLES" SHOULD BE INTERPRETED AS FORBIDDING DELIVERY IN
PAPER CONTAINERS; SECOND, WHETHER, IF THE ORDINANCE WERE DEEMED
APPLICABLE, IT WAS IN CONFLICT WITH AN ILLINOIS STATUTE ENACTED WHILE
THE SUIT WAS PENDING; AND THIRD, WHETHER, IF APPLICABLE AND VALID UNDER
THE STATE LAW, IT WAS INVALID UNDER THE FEDERAL CONSTITUTION.  HELD
THAT THE CASE SHOULD BE HELD BY THE FEDERAL COURTS TO AWAIT THE OUTCOME
OF A LATER SUIT IN THE STATE COURT IN WHICH ANOTHER CORPORATION, PARENT
OF THE MICHIGAN COMPANY, RAISED SUBSTANTIALLY THE SAME ISSUES. 
RAILROAD COMMISSION V. PULLMAN CO., 312 U.S. 49L, FOLLOWED.  P. 171. 

CHICAGO ET AL. V. FIELDCREST DAIRIES, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 314 U.S. 604, TO REVIEW A DECREE WHICH, ON APPEAL FROM A
DECREE OF THE DISTRICT COURT, 35 F.SUPP.  451, RESTRAINED THE CITY AND
ITS OFFICIALS FROM PROHIBITING THE USE BY RESPONDENT OF PAPER
CONTAINERS FOR THE DISTRIBUTION OF MILK. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, A MICHIGAN CORPORATION AUTHORIZED TO DO BUSINESS IN
ILLINOIS, SELLS MILK TO WHOLESALERS AND RETAILERS IN VARIOUS CITIES IN
THE VICINITY OF CHICAGO.  BY AN ORDINANCE PASSED ON JANUARY 4, 1935,
THE CITY OF CHICAGO REQUIRED THAT MILK OR MILK PRODUCTS "SOLD IN
QUANTITIES OF LESS THAN ONE GALLON SHALL BE DELIVERED IN STANDARD MILK
BOTTLES."  SEC. 3094.  RESPONDENT SOUGHT A PERMIT FROM PETITIONER BOARD
OF HEALTH TO SELL MILK IN "PURE-PAK" PAPER CONTAINERS IN THAT CITY. 
THAT PERMIT WAS NOT GRANTED.  THEREAFTER, RESPONDENT FILED SUIT AGAINST
PETITIONERS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, ALLEGING, INTER ALIA, THAT ITS "SINGLE SERVICE,
STERILE, SANITARY AND NON-ABSORBENT" CONTAINERS ARE "STANDARD MILK
BOTTLES" WITHIN THE MEANING OF THE CHICAGO ORDINANCE; THAT, IF THE
ORDINANCE IS CONSTRUED AS PROHIBITING RESPONDENT FROM USING ITS PAPER
CONTAINERS, THE ORDINANCE IS UNCONSTITUTIONAL AND INVALID UNDER THE
FEDERAL AND STATE CONSTITUTIONS; AND THAT THE REFUSAL OF THE PERMIT HAS
CAUSED AND WILL CAUSE RESPONDENT IRREPARABLE DAMAGE.  THE COMPLAINT
PRAYED FOR A DECLARATORY JUDGMENT THAT THE ORDINANCE BE CONSTRUED SO AS
NOT TO PROHIBIT RESPONDENT FROM USING ITS CONTAINERS; OR, IN THE
ALTERNATIVE, THAT THE ORDINANCE, INSOFAR AS IT DOES PREVENT SUCH USE,
IS UNCONSTITUTIONAL AND INVALID.  ISSUE WAS JOINED.  IN MAY, 1939, THE
DISTRICT COURT REFERRED THE CAUSE TO A MASTER, WHO HELD EXTENDED
HEARINGS.  IN JULY, 1939, THE SO-CALLED ILLINOIS MILK PASTEURIZATION
PLANT LAW (L. 1939, PP. 660-666; REV. STAT. 1941, C. 56 1/2, SECS. 115
134) WAS ENACTED, CONTAINING CERTAIN PROVISIONS REGULATING THE USE OF
SINGLE SERVICE AND PAPER CONTAINERS (SEC. 15), AND RESERVING TO CITIES,
VILLAGES AND INCORPORATED TOWNS THE POWER TO REGULATE THE DISTRIBUTION,
ETC., "OF PASTEURIZED MILK AND PASTEURIZED MILK PRODUCTS, PROVIDED THAT
SUCH REGULATION NOT PERMIT ANY PERSON TO VIOLATE ANY PROVISIONS OF THIS
ACT."  SEC. 19.  ON APRIL 27, 1940, THE MASTER SUBMITTED HIS REPORT,
FINDING THAT RESPONDENT'S PAPER CONTAINERS WERE NOT "STANDARD MILK
BOTTLES" WITHIN THE MEANING OF THE ORDINANCE, AND THAT THE ORDINANCE AS
CONSTRUED WAS VALID AND CONSTITUTIONAL.  IN OCTOBER, 1940, THE DISTRICT
COURT, ON EXCEPTIONS TO THE MASTER'S REPORT, HELD THAT RESPONDENT'S
CONTAINERS WERE "STANDARD MILK BOTTLES" WITHIN THE MEANING OF THE
ORDINANCE.  AND IT WENT ON TO HOLD THAT, UNDER THE MILK PASTEURIZATION
PLANT LAW, THE CITY WAS WITHOUT POWER TO PROHIBIT THE USE OF SUCH
CONTAINERS.  IT ENTERED A DECREE IN ACCORDANCE WITH THAT FINDING, AND
ENJOINED PETITIONERS FROM INTERFERING WITH RESPONDENT IN THE SALE AND
DELIVERY OF MILK AND MILK PRODUCTS IN THOSE CONTAINERS.  35 F.SUPP. 
451.  ON APPEAL TO THE CIRCUIT COURT OF APPEALS, THAT COURT HELD THAT
THE DISTRICT COURT ERRED IN HOLDING THAT RESPONDENT'S CONTAINERS WERE
"STANDARD MILK BOTTLES" WITHIN THE MEANING OF THE ORDINANCE.  BUT IT
CONCLUDED THAT THE ORDINANCE, INSOFAR AS IT PROHIBITED, RATHER THAN
REGULATED, THE USE OF PAPER CONTAINERS, WAS INVALID BY REASON OF THE
STATE ACT.  AND IT WENT ON TO INTIMATE BY WAY OF OBITER DICTUM THAT, IF
THE ORDINANCE WERE CONSTRUED TO PROHIBIT THE USE OF RESPONDENT'S
CONTAINERS, IT WOULD NOT SURVIVE AS A CONSTITUTIONAL EXERCISE OF THE
POLICE POWER.  122 F.2D 132. 

ON MAY 15, 1940, WHILE THE CAUSE WAS PENDING BEFORE THE DISTRICT
COURT, DEAN MILK COMPANY, OF WHICH RESPONDENT IS A WHOLLY-OWNED
SUBSIDIARY, INSTITUTED AN ACTION IN THE ILLINOIS STATE COURT AGAINST
PETITIONERS AND OTHER CITY OFFICIALS, RAISING SUBSTANTIALLY THE SAME
ISSUES AND SEEKING SUBSTANTIALLY THE SAME RELIEF AS RESPONDENT RAISED
AND SOUGHT IN THE FEDERAL COURT.  AFTER JUDGMENT HAD BEEN RENDERED BY
THE DISTRICT COURT IN THIS CASE, AND WHILE THE APPEAL WAS PENDING, DEAN
MILK COMPANY MOVED IN THE STATE COURT FOR A DECREE GRANTING THE RELIEF
PRAYED FOR AND RETAINING JURISDICTION BY THE STATE COURT PENDING FINAL
DETERMINATION OF THE APPEAL IN THIS CASE.  SUCH A DECREE WAS ENTERED BY
THE STATE COURT IN DECEMBER 1940. 

WE GRANTED THE PETITION FOR CERTIORARI BECAUSE OF THE DOUBTFUL
PROPRIETY OF THE DISTRICT COURT AND OF THE CIRCUIT COURT OF APPEALS
UNDERTAKING TO DECIDE SUCH AN IMPORTANT QUESTION OF ILLINOIS LAW
INSTEAD OF REMITTING THE PARTIES TO THE STATE COURTS FOR LITIGATION OF
THE STATE QUESTIONS INVOLVED IN THE CASE.  RAILROAD COMMISSION V.
PULLMAN CO., 312 U.S. 496. 

WE ARE OF THE OPINION THAT THE PROCEDURE WHICH WE FOLLOWED IN THE
PULLMAN CASE SHOULD BE FOLLOWED HERE.  ILLINOIS HAS THE FINAL SAY AS TO
THE MEANING OF THE ORDINANCE IN QUESTION.  IT ALSO HAS THE FINAL WORD
ON THE ALLEGED CONFLICT BETWEEN THE ORDINANCE AND THE STATE ACT.  THE
DETERMINATION WHICH THE DISTRICT COURT, THE CIRCUIT COURT OF APPEALS,
OR WE, MIGHT MAKE COULD NOT BE ANYTHING MORE THAN A FORECAST - A
PREDICTION AS TO THE ULTIMATE DECISION OF THE SUPREME COURT OF
ILLINOIS.  HERE, AS IN THE PULLMAN CASE, "A FEDERAL COURT OF EQUITY IS
ASKED TO DECIDE AN ISSUE BY MAKING A TENTATIVE ANSWER WHICH MAY BE
DISPLACED TOMORROW BY A STATE ADJUDICATION."  312 U.S. P. 500. 
FURTHERMORE, THE DISPUTE IN ITS BROAD REACH INVOLVES A QUESTION AS TO
WHETHER A CITY HAS TRESPASSED ON THE DOMAIN OF A STATE.  THOUGH THAT
ISSUE WAS NOT IN THE CASE WHEN THE COMPLAINT WAS FILED, IT EMERGED, DUE
TO THE PASSAGE OF THE MILK PASTEURIZATION PLANT LAW, LONG BEFORE THE
DISTRICT COURT ENTERED ITS DECREE.  THE DELICACY OF THAT ISSUE AND AN
APPROPRIATE REGARD "FOR THE RIGHTFUL INDEPENDENCE OF STATE GOVERNMENTS"
(BEAL V. MISSOURI PACIFIC R. CO., 312 U.S. 45, 50) REEMPHASIZE THAT IT
IS A WISE AND PERMISSIBLE POLICY FOR THE FEDERAL CHANCELLOR TO STAY HIS
HAND IN ABSENCE OF AN AUTHORITATIVE AND CONTROLLING DETERMINATION BY
THE STATE TRIBUNALS.  AS WE SAID IN THE PULLMAN CASE, "THE RESOURCES OF
EQUITY ARE EQUAL TO AN ADJUSTMENT THAT WILL AVOID THE WASTE OF A
TENTATIVE DECISION" AND ANY "NEEDLESS FRICTION WITH STATE POLICIES." 
SEE P. 500 AND CASES CITED; THOMPSON V. MAGNOLIA PETROLEUM CO., 309
U.S. 478, 483-484.  IT IS AN EXERCISE OF A "SOUND DISCRETION, WHICH
GUIDES THE DETERMINATION OF COURTS OF EQUITY."  BEAL V. MISSOURI
PACIFIC R. CO., SUPRA, P. 50.  IN THIS CASE, THAT DISCRETION CALLS FOR
A REMISSION OF THE PARTIES TO THE STATE COURTS, WHICH ALONE CAN GIVE A
DEFINITIVE ANSWER TO THE MAJOR QUESTIONS POSED.  PLAINLY, THEY
CONSTITUTE THE MORE APPROPRIATE FORUM FOR THE TRIAL OF THOSE ISSUES. 
SEE 54 HARV. L. REV. 1379.  CONSIDERATIONS OF DELAY, INCONVENIENCE, AND
COST TO THE PARTIES, WHICH HAVE BEEN URGED UPON US, DO NOT CALL FOR A
DIFFERENT RESULT.  FOR WE ARE HERE CONCERNED WITH THE MUCH LARGER ISSUE
AS TO THE APPROPRIATE RELATIONSHIP BETWEEN FEDERAL AND STATE
AUTHORITIES FUNCTIONING AS A HARMONIOUS WHOLE. 

THE DESIRABILITY OF THE COURSE WHICH WE HAVE SUGGESTED IS NOT
EMBARRASSED BY ANY QUESTION AS TO WHETHER READY RECOURSE MAY BE HAD TO
THE STATE COURTS.  THE AVAILABILITY OF THE STATE TRIBUNAL IS OBVIOUS,
SINCE A CASE INVOLVING SUBSTANTIALLY IDENTICAL ISSUES AND BROUGHT BY
RESPONDENT'S PARENT CORPORATION IS PENDING IN THE STATE COURT.  CF.
GILCHRIST V. INTERBOROUGH RAPID TRANSIT CO., 279 U.S. 159. 

IT IS OF COURSE TRUE THAT RESPONDENT SOUGHT TO RAISE IN ITS COMPLAINT
A CONSTITUTIONAL ISSUE - AN ISSUE WHICH LURKS IN THE CASE EVEN THOUGH
IT NOT BE DEEMED SUBSTANTIAL.  BUT HERE, AS IN THE PULLMAN CASE, THAT
ISSUE MAY NOT SURVIVE THE LITIGATION IN THE STATE COURTS.  IF IT DOES
NOT, THE LITIGATION IS AT AN END.  THAT AGAIN INDICATES THE WISDOM OF
ALLOWING THE LOCAL LAW ISSUES FIRST TO BE RESOLVED BY THOSE WHO HAVE
THE FINAL SAY.  AVOIDANCE OF CONSTITUTIONAL ADJUDICATIONS WHERE NOT
ABSOLUTELY NECESSARY IS PART OF THE WISDOM OF THE DOCTRINE OF THE
PULLMAN CASE. 

WE THEREFORE VACATE THE JUDGMENT AND REMAND THE CAUSE TO THE DISTRICT
COURT WITH DIRECTIONS TO RETAIN THE BILL PENDING A DETERMINATION OF
PROCEEDINGS IN THE STATE COURT IN CONFORMITY WITH THIS OPINION.  IT IS
SO ORDERED. 

MR. JUSTICE ROBERTS CONCURS IN THE RESULT. 
..END :






STATE TAX COMM'N V. ALDRICH, 316 U.S. 174 


NO. 814.  ARGUED MARCH 12, 1942.  - DECIDED APRIL 27, 1942.  - 116 P.2D
923, REVERSED. 


A STATE MAY, CONSISTENTLY WITH THE FOURTEENTH AMENDMENT, IMPOSE A TAX
UPON A TRANSFER BY DEATH OF SHARES OF STOCK IN A CORPORATION WHICH IS
INCORPORATED UNDER ITS LAWS, EVEN THOUGH THE DECEDENT, OF WHOSE ESTATE
THE SHARES WERE A PART, WAS DOMICILED AT THE TIME OF DEATH IN ANOTHER
STATE, WHERE THE CERTIFICATES REPRESENTING THE SHARES WERE HELD; THOUGH
THE CERTIFICATES WERE NEVER WITHIN THE STATE OF INCORPORATION; AND
THOUGH FOR MANY YEARS THE CORPORATION HAD KEPT ITS STOCK BOOKS, RECORDS
AND TRANSFER AGENTS IN THE STATE WHERE DECEDENT WAS DOMICILED, AND HAD
MAINTAINED NONE OF THESE IN THE STATE OF INCORPORATION.  FIRST NATIONAL
BANK V. MAINE, 284 U.S. 312, OVERRULED.  P. 180. 

STATE TAX COMMISSION OF UTAH V. ALDRICH ET AL., ADMINISTRATORS. 

CERTIORARI TO THE SUPREME COURT OF UTAH. 

CERTIORARI, 315 U.S. 789, TO REVIEW THE AFFIRMANCE OF A DECLARATORY
JUDGMENT THAT THE TRANSFER OF STOCK BY DEATH, HERE INVOLVED, WAS NOT
SUBJECT TO TAX UNDER THE UTAH INHERITANCE TAX LAW. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION PRESENTED BY THIS CASE IS WHETHER THE STATE OF UTAH
IS PRECLUDED BY THE FOURTEENTH AMENDMENT FROM IMPOSING A TAX UPON A
TRANSFER BY DEATH OF SHARES OF STOCK IN A UTAH CORPORATION, FORMING
PART OF THE ESTATE OF A DECEDENT WHO, AT THE TIME OF HIS DEATH, WAS
DOMICILED IN THE STATE OF NEW YORK AND HELD THERE THE CERTIFICATES
REPRESENTING THOSE SHARES. 

IN 1940, EDWARD S. HARKNESS DIED TESTATE, BEING AT THAT TIME
DOMICILED IN NEW YORK.  HIS ESTATE WAS PROBATED IN NEW YORK, WHERE
RESPONDENTS WERE APPOINTED EXECUTORS.  RESPONDENTS WERE ALSO APPOINTED
ADMINISTRATORS WITH THE WILL ANNEXED, IN UTAH.  AT THE TIME OF HIS
DEATH, HARKNESS WAS THE OWNER OF 10,000 SHARES OF COMMON STOCK AND 400
SHARES OF PREFERRED STOCK OF THE UNION PACIFIC RAILROAD CO., A UTAH
CORPORATION.  THE CERTIFICATES REPRESENTING THOSE SHARES WERE NEVER
WITHIN UTAH.  THEY WERE IN THE POSSESSION OF HARKNESS IN NEW YORK AT
THE TIME OF HIS DEATH, AND ARE NOW HELD BY RESPONDENTS.  FOR MANY
YEARS, THE UNION PACIFIC RAILROAD CO. HAS KEPT ITS STOCK BOOKS AND
RECORDS AND TRANSFER AGENTS IN NEW YORK, AND HAS NOT MAINTAINED ANY IN
UTAH.  THESE SHARES ARE THE ONLY PROPERTY OWNED BY DECEDENT WHICH IS
CLAIMED TO BE WITHIN THE JURISDICTION OF UTAH.  AT THE DATE OF
DECEDENT'S DEATH, A NEW YORK STATUTE ALLOWED AS A CREDIT AGAINST THE
ESTATE TAX IMPOSED BY NEW YORK THE AMOUNT OF ANY CONSTITUTIONALLY VALID
ESTATE OR INHERITANCE TAX PAID TO ANY OTHER STATE WITHIN THREE YEARS
AFTER THE DECEDENT'S DEATH.  FN1 

RESPONDENTS SOUGHT A DECLARATORY JUDGMENT IN THE UTAH COURT HOLDING
THAT THE TRANSFER OF THE SHARES WAS NOT SUBJECT TO TAX BY UTAH UNDER
THE PROVISIONS OF ITS INHERITANCE TAX LAW.  FN2  THE TRIAL COURT
ENTERED JUDGMENT FOR RESPONDENTS.  THE SUPREME COURT OF UTAH, UNDER THE
COMPULSION OF FIRST NATIONAL BANK V. MAINE, 284 U.S. 312, AFFIRMED. 
116 P.2D 923.  WE GRANTED THE PETITION FOR CERTIORARI SO THAT THE
CONSTITUTIONAL BASIS OF FIRST NATIONAL BANK V. MAINE COULD BE
REEXAMINED IN THE LIGHT OF SUCH RECENT DECISIONS AS CURRY V. MCCANLESS,
307 U.S. 357, AND GRAVES V. ELLIOTT, 307 U.S. 383.  AND SEE
COMMONWEALTH V. STEWART, 338 PA. 9, 12 A.2D 444, AFF'D 312 U.S. 649. 

THERE CAN BE NO DOUBT BUT THAT THE JUDGMENT BELOW SHOULD BE AFFIRMED
IF FIRST NATIONAL BANK V. MAINE IS TO SURVIVE, AS THE JUDGMENT IN THAT
CASE PROHIBITED THE STATE OF MAINE FROM DOING WHAT THE STATE OF UTAH IS
HERE ATTEMPTING.  BUT WE DO NOT THINK IT SHOULD SURVIVE.  AND CERTAINLY
IT CANNOT IF THE PRINCIPLES WHICH GOVERN THE CURRY AND GRAVES CASES
REST ON FIRM CONSTITUTIONAL GROUNDS. 

FIRST NATIONAL BANK V. MAINE, LIKE ITS FORERUNNERS FARMERS LOAN &
TRUST CO. V. MINNESOTA, 280 U.S. 204, AND BALDWIN V. MISSOURI, 281 U.S.
586, READ INTO THE FOURTEENTH AMENDMENT A "RULE OF IMMUNITY FROM
TAXATION BY MORE THAN ONE STATE."  284 U.S. P. 326.  AS WE SAID IN THE
CURRY CASE, THAT DOCTRINE IS OF RECENT ORIGIN.  PRIOR TO 1930, WHEN
BLACKSTONE V. MILLER, 188 U.S. 189, WAS OVERRULED BY FARMERS LOAN &
TRUST CO. V. MINNESOTA, THE ADJUDICATIONS OF THIS COURT CLEARLY
DEMANDED A RESULT OPPOSITE FROM THAT WHICH OBTAINED IN FIRST NATIONAL
BANK V. MAINE.  THAT WAS RECOGNIZED BY THE MAJORITY IN THE LATTER CASE
(284 U.S. P. 321) - AND PROPERLY SO, BECAUSE BLACKSTONE V. MILLER
REJECTED THE NOTION THAT THERE WERE CONSTITUTIONAL OBJECTIONS TO DOUBLE
TAXATION OF INTANGIBLES BY STATES WHICH HAD COMMAND OVER THEM OR THEIR
OWNER.  AND SEE KIDD V. ALABAMA, 188 U.S. 730, 732.  BLACKSTONE V.
MILLER PERMITTED NEW YORK TO TAX THE TRANSFER OF DEBTS OWED BY NEW YORK
CITIZENS TO A DECEDENT WHO DIED DOMICILED IN ILLINOIS, ALTHOUGH
ILLINOIS HAD TAXED THE ENTIRE SUCCESSION.  MR. JUSTICE HOLMES, SPEAKING
FOR THE COURT, UPHELD THE POWER OF NEW YORK TO COLLECT THE TAX BECAUSE
THE TRANSFER OF THE DEBTS "NECESSARILY DEPENDS UPON AND INVOLVES THE
LAW OF NEW YORK FOR ITS EXERCISE."  188 U.S. P. 205.  IT WAS THAT VIEW
WHICH THE MINORITY IN FIRST NATIONAL BANK V. MAINE CHAMPIONED.  THEY
MAINTAINED THAT THERE WAS NO CONSTITUTIONAL BARRIER TO TAXATION BY
MAINE OF THE TRANSFER OF THE SHARES OF STOCK OF THE MAINE CORPORATION,
SINCE THE NATURE AND EXTENT OF THE DECEDENT'S INTEREST IN THE SHARES
WERE "DEFINED BY THE LAWS OF MAINE, AND HIS POWER TO SECURE THE
COMPLETE TRANSFER" WAS "DEPENDENT UPON THEM."  284 U.S. P. 332.  THAT
VIEW HAD BEEN REPEATEDLY EXPRESSED IN OTHER EARLIER CASES TOUCHING ON
THE RIGHTS OF A STATE TO TAX INTANGIBLES OVER WHICH IT HAD COMMAND
THOUGH THE OWNER WAS A NON-RESIDENT.  TAPPAN V. MERCHANTS' NAT. BANK,
19 WALL.  490, 503-504; HAWLEY V. MALDEN, 232 U.S. 1, 12; BAKER V.
BAKER, ECCLES & CO., 242 U.S. 394, 401; FRICK V. PENNSYLVANIA, 268 U.S.
473, 497; RHODE ISLAND HOSPITAL TRUST CO. V. DOUGHTON, 270 U.S. 69,
81.  AS STATED BY CHIEF JUSTICE MARSHALL IN MCCULLOCH V. MARYLAND, 4
WHEAT.  316, 429, THE POWER TO TAX "IS AN INCIDENT OF SOVEREIGNTY, AND
IS CO-EXTENSIVE WITH THAT TO WHICH IT IS AN INCIDENT.  ALL SUBJECTS
OVER WHICH THE SOVEREIGN POWER OF A STATE EXTENDS, ARE OBJECTS OF
TAXATION.  ..." 

IT WAS THAT VIEW WHICH WE FOLLOWED IN THE CURRY CASE.  WE HELD THERE
THAT THE FOURTEENTH AMENDMENT DID NOT PREVENT BOTH ALABAMA AND
TENNESSEE FROM IMPOSING DEATH TAXES UPON THE TRANSFER OF AN INTEREST IN
INTANGIBLES HELD IN TRUST BY AN ALABAMA TRUSTEE BUT PASSING UNDER THE
WILL OF A BENEFICIARY DECEDENT DOMICILED IN TENNESSEE.  WE STATED THAT
RIGHTS TO INTANGIBLES "ARE BUT RELATIONSHIPS BETWEEN PERSONS, NATURAL
OR CORPORATE, WHICH THE LAW RECOGNIZES BY ATTACHING TO THEM CERTAIN
SANCTIONS ENFORCEABLE IN COURTS.  THE POWER OF GOVERNMENT OVER THEM AND
THE PROTECTION WHICH IT GIVES THEM CANNOT BE EXERTED THROUGH CONTROL OF
A PHYSICAL THING.  THEY CAN BE MADE EFFECTIVE ONLY THROUGH CONTROL OVER
AND PROTECTION AFFORDED TO THOSE PERSONS WHOSE RELATIONSHIPS ARE THE
ORIGIN OF THE RIGHTS.  ...  OBVIOUSLY, AS SOURCES OF ACTUAL OR
POTENTIAL WEALTH - WHICH IS AN APPROPRIATE MEASURE OF ANY TAX IMPOSED
ON OWNERSHIP OR ITS EXERCISE - THEY CANNOT BE DISSOCIATED FROM THE
PERSONS FROM WHOSE RELATIONSHIPS THEY ARE DERIVED.  THESE ARE NOT IN
ANY SENSE FICTIONS.  THEY ARE INDISPUTABLE REALITIES."  307 U.S. P.
366.  WE HELD THAT THE POWER TO TAX INTANGIBLES WAS NOT RESTRICTED TO
ONE STATE, WHETHER "WE REGARD THE RIGHT OF A STATE TO TAX AS FOUNDED ON
POWER OVER THE OBJECT TAXED, AS DECLARED BY CHIEF JUSTICE MARSHALL IN
MCCULLOCH V. MARYLAND, SUPRA, THROUGH DOMINION OVER TANGIBLES OR OVER
PERSONS WHOSE RELATIONSHIPS ARE THE SOURCE OF INTANGIBLE RIGHTS; OR ON
THE BENEFIT AND PROTECTION CONFERRED BY THE TAXING SOVEREIGNTY, OR
BOTH."  ID. PP. 367-368.  AND WE ADDED:  "SHARES OF CORPORATE STOCK MAY
BE TAXED AT THE DOMICILE OF THE SHAREHOLDER AND ALSO AT THAT OF THE
CORPORATION WHICH THE TAXING STATE HAS CREATED AND CONTROLS; AND INCOME
MAY BE TAXED BOTH BY THE STATE WHERE IT IS EARNED AND BY THE STATE OF
THE RECIPIENT'S DOMICILE.  PROTECTION, BENEFIT, AND POWER OVER THE
SUBJECT MATTER ARE NOT CONFINED TO EITHER STATE."  ID., P. 368.  IN THE
RECENT CASE OF WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435, 444, WE GAVE
RENEWED EXPRESSION TO THE SAME VIEW:  "A STATE IS FREE TO PURSUE ITS
OWN FISCAL POLICIES, UNEMBARRASSED BY THE CONSTITUTION, IF BY THE
PRACTICAL OPERATION OF A TAX THE STATE HAS EXERTED ITS POWER IN
RELATION TO OPPORTUNITIES WHICH IT HAS GIVEN, TO PROTECTION WHICH IT
HAS AFFORDED, TO BENEFITS WHICH IT HAS CONFERRED BY THE FACT OF BEING
AN ORDERLY, CIVILIZED SOCIETY."  AND SEE GRAVES V. SCHMIDLAPP, 315 U.S.
657. 

FURTHERMORE, THE RULE OF IMMUNITY AGAINST DOUBLE TAXATION ESPOUSED BY
FIRST NATIONAL BANK V. MAINE, HAD LONG BEEN REJECTED IN OTHER CASES. 
KIDD V. ALABAMA, SUPRA; FORT SMITH LUMBER CO. V. ARKANSAS, 251 U.S.
532; CREAM OF WHEAT CO. V. GRAND FORKS, 253 U.S. 325.  WE REJECTED IT
AGAIN ONLY RECENTLY.  ILLINOIS CENTRAL R. CO. V. MINNESOTA, 309 U.S.
157.  AND AS WE POINTED OUT IN THE CURRY CASE, THE REASONS WHY THE
FIFTH AMENDMENT "DOES NOT REQUIRE US TO FIX A SINGLE EXCLUSIVE PLACE OF
TAXATION OF INTANGIBLES FOR THE BENEFIT OF THEIR FOREIGN OWNER" (BURNET
V. BROOKS, 288 U.S. 378) ARE NO LESS COGENT IN CASE OF THE FOURTEENTH. 
307 U.S. PP. 369, 370. 

THE RECENT CASES TO WHICH WE HAVE ALLUDED ARE ALL DISTINGUISHABLE ON
THEIR FACTS.  BUT THEIR GUIDING PRINCIPLES ARE IRRECONCILABLE WITH THE
VIEWS EXPRESSED IN FIRST NATIONAL BANK V. MAINE.  IF WE RAISED A
CONSTITUTIONAL BARRIER IN THIS CASE AFTER HAVING LET IT DOWN IN THE
CURRY CASE, WE WOULD INDEED BE DRAWING NEAT LEGAL DISTINCTIONS AND
REFINEMENTS WHICH CERTAINLY CANNOT BE DIVINED FROM THE LANGUAGE OF THE
CONSTITUTION.  CERTAINLY ANY DIFFERENCES BETWEEN THE SHARES OF STOCK IN
THIS CASE AND THE INTANGIBLES IN THE CURRY CASE DO NOT WARRANT
DIFFERENCES IN CONSTITUTIONAL TREATMENT SO AS TO FORBID TAXATION BY TWO
STATES IN THE ONE CASE AND TO PERMIT IT IN THE OTHER.  IF WE
PERPETUATED ANY SUCH DIFFERENCES, WE WOULD BE DOING VIOLENCE TO THE
WORDS "DUE PROCESS" BY DRAWING LINES WHERE THE FOURTEENTH AMENDMENT
FAILS TO DRAW THEM.  FURTHERMORE, THE LEGAL INTERESTS IN THE
INTANGIBLES HERE INVOLVED ARE AS DIVERSE AS THEY WERE IN THE
INTANGIBLES IN THE CURRY CASE.  AND TO SAY THAT THESE SHARES OF STOCK
WERE LOCALIZED OR HAD AN EXCLUSIVE SITUS IN NEW YORK WOULD BE TO
INDULGE IN THE FICTION WHICH WE REJECTED IN THE CURRY CASE.  ANY SUCH
ATTEMPT TO FIX THEIR WHEREABOUTS IN NEW YORK WOULD DISREGARD THE
INTIMATE RELATIONSHIP WHICH UTAH HAS TO THIS CORPORATION AND ITS
SHARES. 

MORE SPECIFICALLY, IF THE QUESTION IS "WHETHER THE STATE HAS GIVEN
ANYTHING FOR WHICH IT CAN ASK RETURN" (WISCONSIN V. J.C. PENNEY CO.,
SUPRA, P. 444), OR WHETHER THE TRANSFER DEPENDS UPON AND INVOLVES THE
LAW OF UTAH FOR ITS EXERCISE (BLACKSTONE V. MILLER), THERE CAN BE NO
DOUBT THAT UTAH IS NOT RESTRAINED BY THE FOURTEENTH AMENDMENT FROM
TAXING THIS TRANSFER.  THE CORPORATION OWES ITS EXISTENCE TO UTAH. 
UTAH LAW DEFINES THE NATURE AND EXTENT OF THE INTEREST OF THE
SHAREHOLDERS IN THE CORPORATION.  UTAH LAW AFFORDS PROTECTION FOR THOSE
RIGHTS.  UTAH HAS POWER OVER THE TRANSFER BY THE CORPORATION OF ITS
SHARES OF STOCK.  CERTAINLY THAT PROTECTION, BENEFIT, AND POWER OVER
THE SHARES WOULD HAVE SATISFIED THE TEST OF BLACKSTONE V. MILLER AND
CURRY V. MCCANLESS.  BUT IT IS SAID THAT WE ARE HERE INTERESTED ONLY IN
THE FACTUM OF THE TRANSFER, AND THAT THE STOCKHOLDER IN THE CASE AT BAR
HAD NO NEED TO INVOKE THE LAW OF UTAH TO EFFECT A COMPLETE TRANSFER OF
HIS INTEREST.  THE ARGUMENT IS BASED ON THE FACT THAT THE TRANSFER
OFFICE IS LOCATED OUTSIDE UTAH, AND THAT, UNDER THE UNIFORM STOCK
TRANSFER ACT WHICH UTAH HAS ADOPTED (REV. STAT. 1933 SECS. 18-3-1 ET
SEQ.), THE TREND IS TO TREAT THE SHARES AS MERGED INTO THE CERTIFICATES
IN SITUATIONS INVOLVING THE OWNERSHIP AND TRANSFER OF THE SHARES.  WE
DO NOT STOP TO ANALYZE THE MANY CASES WHICH HAVE BEEN CITED, NOR TO
SPECULATE AS TO HOW UTAH WOULD INTERPRET ITS LAW IN THIS REGARD. 
SUFFICE IT TO SAY, THAT IF THAT FREEDOM OF TRANSFER EXISTS AS
RESPONDENTS CLAIM, IT STEMS FROM UTAH LAW.  IT FINDS ITS ULTIMATE
SOURCE IN THE AUTHORITY WHICH UTAH HAS GRANTED.  IT IS INDEED A BENEFIT
WHICH UTAH HAS BESTOWED.  FOR IT ALONE UTAH MAY CONSTITUTIONALLY ASK A
RETURN.  IN VIEW OF THESE REALITIES, WE CANNOT SAY WITH THE MAJORITY IN
FIRST NATIONAL BANK V. MAINE, P. 327, THAT A "TRANSFER FROM THE DEAD TO
THE LIVING OF ANY SPECIFIC PROPERTY IS AN EVENT SINGLE IN CHARACTER AND
IS EFFECTED UNDER THE LAWS, AND OCCURS WITHIN THE LIMITS, OF A
PARTICULAR STATE," SO AS TO PRECLUDE UTAH FROM IMPOSING A TAX ON THIS
TRANSFER. 

WE ARE OF COURSE NOT UNMINDFUL OF THE NOTIONS EXPRESSED IN FARMERS
LOAN & TRUST CO. V. MINNESOTA, AND REPEATED IN FIRST NATIONAL BANK V.
MAINE, THAT THE VIEW CHAMPIONED BY BLACKSTONE V. MILLER DISTURBED THE
"GOOD RELATIONS AMONG THE STATES" AND HAD A "BAD" PRACTICAL EFFECT
WHICH LED MANY STATES "TO AVOID THE EVIL BY RESORT TO RECIPROCAL
EXEMPTION LAWS."  280 U.S. P. 209.  BUT, AS STATED BY THE MINORITY IN
FIRST NATIONAL BANK V. MAINE, "WE CAN HAVE NO ASSURANCE THAT RESORT TO
THE FOURTEENTH AMENDMENT, AS THE ILL-ADAPTED INSTRUMENT OF SUCH A
REFORM, WILL NOT CREATE MORE DIFFICULTIES AND INJUSTICES THAN IT WILL
REMOVE."  284 U.S. P. 334.  MORE BASICALLY, EVEN THOUGH WE BELIEVED
THAT A DIFFERENT SYSTEM SHOULD BE DESIGNED TO PROTECT AGAINST MULTIPLE
TAXATION, IT IS NOT OUR PROVINCE TO PROVIDE IT.  SEE CURRY V.
MCCANLESS, SUPRA, PP. 373-374.  TO DO SO WOULD BE TO INDULGE IN THE
DANGEROUS ASSUMPTION THAT THE FOURTEENTH AMENDMENT "WAS INTENDED TO
GIVE US CARTE BLANCHE TO EMBODY OUR ECONOMIC OR MORAL BELIEFS IN ITS
PROHIBITIONS."  MR. JUSTICE HOLMES, DISSENTING, BALDWIN V. MISSOURI,
SUPRA, P. 595.  IT WOULD VIOLATE THE FIRST PRINCIPLES OF CONSTITUTIONAL
ADJUDICATION TO STRIKE DOWN STATE LEGISLATION ON THE BASIS OF OUR
INDIVIDUAL VIEWS OR PREFERENCES AS TO POLICY, WHETHER THE STATE LAWS
DEAL WITH TAXES OR OTHER SUBJECTS OF SOCIAL OR ECONOMIC LEGISLATION. 
FOR THE REASONS STATED, WE DO NOT THINK THAT FIRST NATIONAL BANK V.
MAINE SHOULD SURVIVE.  WE OVERRULE IT.  IN LINE WITH OUR RECENT
DECISIONS IN CURRY V. MCCANLESS, GRAVES V. ELLIOTT AND GRAVES V.
SCHMIDLAPP, WE REPEAT THAT THERE IS NO CONSTITUTIONAL RULE OF IMMUNITY
FROM TAXATION OF INTANGIBLES BY MORE THAN ONE STATE.  IN CASE OF SHARES
OF STOCK, "JURISDICTION TO TAX" IS NOT RESTRICTED TO THE DOMICILIARY
STATE.  ANOTHER STATE WHICH HAS EXTENDED BENEFITS OR PROTECTION, OR
WHICH CAN DEMONSTRATE "THE PRACTICAL FACT OF ITS POWER" OR SOVEREIGNTY
AS RESPECTS THE SHARES (BLACKSTONE V. MILLER, P. 205), MAY LIKEWISE
CONSTITUTIONALLY MAKE ITS EXACTION.  IN OTHER WORDS, WE RESTORE THESE
INTANGIBLES TO THE CONSTITUTIONAL STATUS WHICH THEY OCCUPIED UP TO A
FEW YEARS AGO.  SEE GREVES V. SHAW, 173 MASS. 205, 53 N.E. 372; LARSON
V. MACMILLER, 56 UTAH 84, 189 P. 579, AND CASES COLLECTED IN 42 A.L.R.
PP. 365 ET SEQ. 

WE REVERSE THE JUDGMENT BELOW AND REMAND THE CAUSE TO THE SUPREME
COURT OF UTAH FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1 N.Y.L. 1930, C. 710, SEC. 1, AMENDED L. 1934, C. 639, SEC. 1;
MCKINNEY'S CONS.  L., BK. 59, TAX LAW, SEC. 249-O.  THIS SECTION WAS
REPEALED BY L. 1940, C. 138.  FOR THE PRESENT PROVISION, SEE MCKINNEY,
OP. CIT., CUM. ANN. PT. (1941) SEC. 249-O. 

FN2  REV. STAT. UTAH, 1933, SEC. 80-12-2 PROVIDES: 

"A TAX EQUAL TO THE SUM OF THE FOLLOWING PERCENTAGES OF THE MARKET
VALUE OF THE NET ESTATE SHALL BE IMPOSED UPON THE TRANSFER OF THE NET
ESTATE OF EVERY DECEDENT, WHETHER A RESIDENT OR NONRESIDENT OF THIS
STATE: 

"THREE PER CENT OF THE AMOUNT BY WHICH THE NET ESTATE EXCEEDS $10,000
AND DOES NOT EXCEED $25,000; 

"FIVE PER CENT OF THE AMOUNT BY WHICH THE NET ESTATE EXCEEDS
$25,000." 

SEC. 80-12-3 PROVIDES: 

"THE VALUE OF THE GROSS ESTATE OF A DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR
PERSONAL, WITHIN THE JURISDICTION OF THIS STATE, AND ANY INTEREST
THEREIN, WHETHER TANGIBLE OR INTANGIBLE, WHICH SHALL PASS TO ANY
PERSON, IN TRUST OR OTHERWISE, BY TESTAMENTARY DISPOSITION OR BY LAW OF
INHERINTANCE OR SUCCESSION OF THIS OR ANY OTHER STATE OR COUNTRY, OR BY
DEED, GRANT, BARGAIN, SALE OR GIFT MADE IN CONTEMPLATION OF THE DEATH
OF THE GRANTOR, VENDOR OR DONOR, OR INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT OR AFTER HIS DEATH." 

MR. JUSTICE FRANKFURTER, CONCURRING: 

A CASE OF THIS KIND RECALLS US TO FIRST PRINCIPLES. 

THE TAXING POWER IS AN INCIDENT OF GOVERNMENT.  IT DOES NOT DERIVE
FROM TECHNICAL LEGAL CONCEPTS.  THE POWER TO TAX IS COEXTENSIVE WITH
THE FUNDAMENTAL POWER OF SOCIETY OVER THE PERSONS AND THINGS MADE
SUBJECT TO TAX.  EACH STATE OF THE UNION HAS THE SAME TAXING POWER AS
AN INDEPENDENT GOVERNMENT, EXCEPT INSOFAR AS THAT POWER HAS BEEN
CURTAILED BY THE FEDERAL CONSTITUTION. 

THE TAXING POWER OF THE STATES WAS LIMITED BY THE CONSTITUTION AND
THE ORIGINAL TEN AMENDMENTS IN ONLY THREE RESPECTS:  (1) NO STATE CAN,
WITHOUT THE CONSENT OF CONGRESS, LAY ANY IMPOSTS OR DUTIES ON IMPORTS
OR EXPORTS, EXCEPT AS NECESSARY FOR EXECUTING ITS INSPECTION LAWS, ART.
I, SEC. 10(2); (2) NO STATE CAN, WITHOUT THE CONSENT OF CONGRESS, LAY
ANY TONNAGE DUTIES, ART. I, SEC. 10(3); AND (3) BY VIRTUE OF THE
COMMERCE CLAUSE, ART. I, SEC. 8(3), NO STATE CAN TAX SO AS TO
DISCRIMINATE AGAINST INTERSTATE COMMERCE.  (FOR PRESENT PURPOSES, I PUT
THE CONTRACT CLAUSE TO ONE SIDE).  NONE OF THESE LIMITATIONS TOUCHES
THE POWER OF A STATE TO CREATE CORPORATIONS AND THE INCIDENTAL POWER TO
TAX OPPORTUNITIES WHICH SUCH STATE-CREATED CORPORATIONS AFFORD. 

THIS PHASE OF THE TAXING POWER, ROOTED IN THE ESTABLISHED PRACTICES
OF THE STATES IN COMMON WITH OTHER GOVERNMENTS, WAS NOT SUDDENLY
ABROGATED ON JULY 28, 1868, WHEN THE FOURTEENTH AMENDMENT BECAME THE
LAW OF THE LAND.  ON THE CONTRARY, TAXES BASED ON THE STATES' POWER
OVER CORPORATIONS OF THEIR OWN CREATION THEREAFTER BECAME AN
INCREASINGLY FAMILIAR SOURCE OF REVENUE.  OF COURSE, THE DUE PROCESS
CLAUSE HAS ITS APPLICATION TO THE TAXING POWERS OF THE STATES - A STATE
CANNOT TAX A STRANGER FOR SOMETHING THAT IT HAS NOT GIVEN HIM.  WHEN A
STATE GIVES NOTHING IN RETURN FOR EXACTING A TAX, IT MAY BE SAID THAT
THERE IS NO "JURISDICTION TO TAX."  BUT THAT PHRASE OBSCURES RATHER
THAN ENLIGHTENS, FOR IT ONLY STATES A RESULT AND DOES NOT ANALYZE THE
CONSTITUTIONAL PROBLEM.  THE RIGHT OF A STATE TO TAX THE EFFECTIVE
ACQUISITION OF MEMBERSHIP IN A DOMESTIC CORPORATION, WHEREVER THE PIECE
OF PAPER REPRESENTING SUCH A TAXABLE INTEREST MAY BE PHYSICALLY
LOCATED, - THE IMMEDIATE QUESTION BEFORE US - WAS NOT DOUBTED UNTIL THE
DECISION OF THIS COURT ONLY TEN YEARS AGO IN FIRST NATIONAL BANK V.
MAINE, 284 U.S. 312.  THAT DECISION, AS WAS MADE CLEAR IN ITS DISSENT,
WAS AN UNWARRANTED DEVIATION FROM UNBROKEN LEGAL HISTORY AND FISCAL
PRACTICE.  DRAWN AS THE DECISION WAS "FROM THE VOID OF 'DUE PROCESS OF
LAW', WHEN LOGIC, TRADITION AND AUTHORITY HAVE UNITED TO DECLARE THE
RIGHT OF THE STATE TO LAY" SUCH A TAX (HOLMES, J., DISSENTING IN
BALDWIN V. MISSOURI, 281 U.S. 586, 596), DUE REGARD FOR THE
CONSTITUTION DEMANDS THAT THE DEVIATION BE NOT PERPETUATED AND THAT THE
POWER ERRONEOUSLY WITHDRAWN FROM THE STATES BE AGAIN RECOGNIZED. 

MODERN ENTERPRISE OFTEN BRINGS DIFFERENT PARTS OF AN ORGANIC
COMMERCIAL TRANSACTION WITHIN THE TAXING POWER OF MORE THAN ONE STATE,
AS WELL AS OF THE NATION.  IT DOES SO BECAUSE THE TRANSACTION IN ITS
ENTIRETY MAY RECEIVE THE BENEFITS OF MORE THAN ONE GOVERNMENT.  AND THE
EXERCISE BY THE STATES OF THEIR CONSTITUTIONAL POWER TO TAX MAY
UNDOUBTEDLY PRODUCE DIFFICULT POLITICAL AND FISCAL PROBLEMS.  BUT THEY
ARE INHERENT IN THE NATURE OF OUR FEDERALISM AND ARE PART OF ITS
PRICE.  THESE DIFFICULTIES ARE NOT PECULIAR TO US.  KINDRED PROBLEMS
HAVE TROUBLED OTHER CONSTITUTIONAL FEDERALISMS.  FOR AUSTRALIA, SEE
REPORT OF THE ROYAL COMMISSION ON THE CONSTITUTION, PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA (1929), P. 187 ET SEQ.; FOR CANADA, SEE 1
REPORT OF THE ROYAL COMMISSION ON DOMINION-PROVINCIAL RELATIONS (1940),
P. 202 ET SEQ. 

"A GOOD DEAL HAS TO BE READ INTO THE FOURTEENTH AMENDMENT TO GIVE IT
ANY BEARING UPON THIS CASE."  HOLMES, J., DISSENTING IN FARMERS LOAN
CO. V. MINNESOTA, 280 U.S. 204, 218.  WE WOULD HAVE TO READ INTO THAT
AMENDMENT PRIVATE NOTIONS AS TO TAX POLICY.  BUT WHETHER A TAX IS WISE
OR EXPEDIENT IS THE BUSINESS OF THE POLITICAL BRANCHES OF GOVERNMENT,
NOT OURS.  CONSIDERATIONS RELEVANT TO INVALIDATION OF A TAX MEASURE ARE
WHOLLY DIFFERENT FROM THOSE THAT COME INTO PLAY IN JUSTIFYING
DISAPPROVAL OF A TAX ON THE SCORE OF POLITICAL OR FINANCIAL UNWISDOM. 

IT MAY WELL BE THAT THE LAST WORD HAS NOT BEEN SAID BY THE VARIOUS
DEVICES NOW AVAILABLE - THROUGH UNIFORM AND RECIPROCAL LEGISLATION,
THROUGH ACTION BY THE STATES UNDER THE COMPACT CLAUSE, ART. I, SEC.
10(3), OR THROUGH WHATEVER OTHER MEANS STATESMEN MAY DEVISE - FOR
DISTRIBUTING WISELY THE TOTAL NATIONAL INCOME FOR GOVERNMENTAL PURPOSES
AS BETWEEN THE STATES AND THE NATION.  BUT EVEN IF IT WERE POSSIBLE TO
MAKE THE NEEDED ADJUSTMENTS IN THE FISCAL RELATIONS OF THE STATES TO
ONE ANOTHER AND TO THE FEDERAL GOVERNMENT THROUGH THE PROCESS OF
EPISODIC LITIGATION - WHICH TO ME SEEMS MOST ILL-ADAPTED FOR DEVISING
FISCAL POLICIES - IT IS ENOUGH THAT OUR CONSTITUTIONAL SYSTEM DENIES
SUCH A FUNCTION TO THIS COURT. 

I AGREE, THEREFORE, THAT FIRST NATIONAL BANK V. MAINE SHOULD BE
OVERRULED AND THAT THE TAX IMPOSED BY UTAH IN THIS CASE IS VALID.  TO
REFUSE TO NULLIFY LEGISLATION THE FRAILTIES OF WHICH WE THINK WE SEE,
IS TO RESPECT THE BOUNDS OF OUR CONSTITUTIONAL AUTHORITY AND NOT TO
INDULGE IN A FICTION.  SEE JAMES BRADLEY THAYER, THE ORIGIN AND SCOPE
OF THE AMERICAN DOCTRINE OF CONSTITUTIONAL LAW, 7 HARV. L. REV. 129. 
TO ALLOW LAWS TO STAND IS TO ALLOW LAWS TO BE MADE BY THOSE WHOSE TASK
IT IS TO LEGISLATE.  THE NULLIFICATION OF LEGISLATION ON CONSTITUTIONAL
GROUNDS HAS BEEN RECOGNIZED FROM THE BEGINNING AS A MOST "DELICATE"
FUNCTION, NOT TO BE INDULGED IN BY THIS COURT SIMPLY BECAUSE IT HAS
FORMAL POWER TO DO SO, BUT ONLY WHEN COMPELLING CONSIDERATIONS LEAVE NO
OTHER CHOICE.  TO SUGGEST THAT WHEN THIS COURT FINDS THAT A LAW IS NOT
OFFENSIVE TO THE CONSTITUTION AND THAT IT MUST THEREFORE STAND, WE MAKE
THE SAME KIND OF JUDGMENT AS WHEN ON RARE OCCASIONS WE FIND THAT A LAW
IS OFFENSIVE TO THE CONSTITUTION AND MUST THEREFORE FALL, IS TO
DISREGARD THE ROLE OF THIS COURT IN OUR CONSTITUTIONAL SYSTEM SINCE ITS
ESTABLISHMENT IN 1789. 

MR. JUSTICE JACKSON, DISSENTING: 

STATE TAXATION OF TRANSFER BY DEATH OF INTANGIBLE PROPERTY IS IN
SOMETHING OF A JURISDICTIONAL SNARL, TO THE SOLUTION OF WHICH THIS
COURT OWES ALL THAT IT HAS OF WISDOM AND POWER.  THE THEORETICAL BASIS
OF SOME DECISIONS IN THE VERY PRACTICAL MATTER OF TAXATION IS NOT
PARTICULARLY SATISFYING.  FN1  BUT A SWITCH OF ABSTRACT CONCEPTS IS
HARDLY TO BE EXPECTED WITHOUT AT LEAST CAREFUL CONSIDERATION OF ITS
IMPACT ON THE VERY PRACTICAL AND CONCRETE PROBLEMS OF STATES AND
TAXPAYERS.  WEIGHING THE HIGHLY DOCTRINAIRE REASONS ADVANCED FOR THIS
DECISION AGAINST ITS PRACTICAL EFFECTS ON OUR ECONOMY AND UPON OUR
WHOLE CONSTITUTIONAL LAW OF STATE TAXATION, I CAN SEE NOTHING IN THE
COURT'S DECISION MORE USEFUL THAN THE PROVERBIAL LEAP FROM THE FRYING
PAN INTO THE FIRE. 

                                  I 

THERE IS LITTLE PERSUASION AND CERTAINLY NO COMPULSION IN THE
AUTHORITIES MUSTERED BY THE COURT'S PRESENT OPINION, WHICH ARE EITHER
ADMITTEDLY OVERRULED CASES, SUCH AS BLACKSTONE V. MILLER, 188 U.S. 189,
OR ADMITTEDLY DISTINGUISHABLE ONES, SUCH AS CURRY V. MCCANLESS, 307
U.S. 357; GRAVES V. ELLIOTT, 307 U.S. 383; WISCONSIN V. J.C. PENNEY
CO., 311 U.S. 435.  SUCH AUTHORITIES ARE NOT IMPRESSIVE IN VINDICATION
OF SUCH A JUDGMENT.  WITHOUT DISCUSSION OF THE ACADEMIC MERITS OF THE
DECISION THAT IS BEING OVERRULED, I AM WILLING TO PROCEED ON THE
ESTIMATE OF IT MADE AT THE TIME OF ITS PRONOUNCEMENT BY THE PRESENT
CHIEF JUSTICE, WHO SAID IN HIS DISSENT: "SITUS OF AN INTANGIBLE, FOR
TAXING PURPOSES, AS THE DECISIONS OF THIS COURT, INCLUDING THE PRESENT
ONE, ABUNDANTLY DEMONSTRATE, IS NOT A DOMINATING REALITY, BUT A
CONVENIENT FICTION WHICH MAY BE JUDICIALLY EMPLOYED OR DISCARDED,
ACCORDING TO THE RESULT DESIRED."  FIRST NATIONAL BANK V. MAINE, 284
U.S. 312, 332.  THE COURT NOW DISCARDS THIS FICTION IN FAVOR OF ONE
CALLING FOR A DIFFERENT RESULT. 

THIS OLDER RULE ASCRIBED A FICTIONAL CONSEQUENCE TO THE DOMICILE OF A
NATURAL PERSON; IT IS OVERRULED BY ASCRIBING A FICTIONAL CONSEQUENCE TO
THE DOMICILE OF AN ARTIFICIAL CORPORATION.  THE OLDER RULE EMPHASIZED
DOMINANCE BY THE INDIVIDUAL OVER HIS INTANGIBLE PROPERTY, THE TAX SITUS
OF WHICH FOLLOWED THE DOMICILE OF ITS OWNER.  TODAY'S NEW RULE
EMPHASIZES THE DOMINANCE OF THE CORPORATION, A CREATURE OF THE LEGAL
IMAGINATION.  FN2  TO THIS FICTIONAL PERSONALITY IT ASCRIBES A
HYPOTHETICAL "DOMICILE" IN A PLACE WHERE IT HAS BUT A FRACTION OF ITS
PROPERTY AND CONDUCTS ONLY ITS FORMAL CORPORATE ACTIVITIES; AND ON THE
UNION OF THESE TWO FICTIONS IT PERMITS THE CHARTERING STATE TO TAX THE
ESTATES OF PERSONS WHO NEVER LIVED OR DID BUSINESS THEREIN.  THE
REASONING BACK OF THE HOLDING IS THIS:  BECAUSE UTAH ISSUED A CHARTER
TO A CORPORATION, WHICH ISSUED STOCK TO A NONRESIDENT, WHICH CHANGED
HANDS AT HIS DEATH, WHICH REQUIRED A TRANSFER ON THE CORPORATION'S
BOOKS, WHICH TRANSFER WAS PERMITTED BY UTAH LAW, UTAH GOT JURISDICTION
TO TAX SUCCESSION TO THE STOCK.  IT IS REALLY AS REMOTE AS THAT. 

NO ONE QUESTIONS THAT A STATE WHICH CHARTERS A CORPORATION, EVEN
THOUGH IT AMOUNTS TO NO MORE THAN GIVING "TO AIRY NOTHING A LOCAL
HABITATION AND A NAME," HAS THE RIGHT TO EXACT A CHARTER FEE, AN
INCORPORATION TAX, OR A FRANCHISE TAX FROM THE ARTIFICIAL ENTITY IT HAS
CREATED.  BUT THAT SUCH CHARTERING ENABLES THE TAXING ARM OF THE STATE
TO REACH THE ESTATE OF EVERY STOCKHOLDER, WHEREVER HE LIVES, AND TO TAX
THE ENTIRE VALUE OF THE STOCK BECAUSE OF "OPPORTUNITIES WHICH IT HAS
GIVEN," "PROTECTION WHICH IT HAS AFFORDED," OR "BENEFITS WHICH IT HAS
CONFERRED" IS QUITE ANOTHER MATTER.  UTAH IS PERMITTED TO TAX THE FULL
VALUE OF EACH SHARE OF UNION PACIFIC STOCK PASSING BY DEATH.  ANY
CONCEIVABLE "OPPORTUNITY," "PROTECTION," OR "BENEFIT" DERIVED BY THE
UNION PACIFIC STOCKHOLDERS FROM UTAH IS NEGLIGIBLE IN PROPORTION TO THE
VALUES UTAH IS AUTHORIZED TO TAX. 

IT WOULD BE HARD TO SELECT A CASE THAT WOULD BETTER DEMONSTRATE THE
FICTIONAL BASIS OF THE COURT'S DOCTRINE OF BENEFITS AND PROTECTION THAN
THIS CASE OF UTAH AND THE UNION PACIFIC RAILROAD.  WHEN UTAH WAS
ADMITTED TO STATEHOOD IN 1896, THE UNION PACIFIC RAILROAD WAS ALREADY
OLD AS A NATIONAL INSTITUTION.  THE FIRST WHITE SETTLEMENT IN UTAH MADE
BY THE MORMONS WAS IN ITS SECOND YEAR WHEN PRESIDENT TAYLOR RECOMMENDED
TO CONGRESS CONSIDERATION OF A RAILROAD TO THE PACIFIC AS A "WORK OF
GREAT NATIONAL IMPORTANCE AND OF A VALUE TO THE COUNTRY WHICH IT WOULD
BE DIFFICULT TO ESTIMATE."  FN3  IN 1853, CONGRESS APPROPRIATED
$150,000 TO MAKE EXPLORATIONS AND SURVEYS TO "ASCERTAIN THE MOST
PRACTICAL AND ECONOMICAL ROUTE."  FN4  IN 1860, BOTH THE LEADING
POLITICAL PARTIES IN THEIR PLATFORMS DECLARED IN FAVOR OF BUILDING SUCH
A ROAD.  FN5  PRESIDENT LINCOLN, ON JULY 1, 1862, SIGNED  FN6  THE WAR
MEASURE CREATING THE UNION PACIFIC RAILROAD COMPANY AND SUBSIDIZING THE
CONSTRUCTION OF THE ROAD,  FN7  WHICH OPENED ON MAY 10, 1869.  FN8  THE
STORY OF THE UNION PACIFIC HAS BEEN A PART OF OUR NATIONAL HISTORY. 
NOT EVEN ITS SCANDALS WERE LOCAL.  ITS CREDIT MOBILIER SCANDAL ROCKED
THE NATION.  FN9 

THE ROAD CONTINUED TO BE A NATIONAL PROBLEM AS WELL AS A NATIONAL
ENTERPRISE.  PRESIDENT CLEVELAND RECOMMENDED TO CONGRESS IN HIS MESSAGE
OF DECEMBER 3, 1894 CONSIDERATION OF REORGANIZATION.  FN10  THE STEPS
TAKEN BY THE GOVERNMENT WERE REPORTED TO THE CONGRESS BY PRESIDENT
MCKINLEY IN HIS ANNUAL MESSAGES OF 1897, 1898, AND 1899.  HE REPORTED
THE SALE OF THE UNION PACIFIC MAIN LINE UNDER THE DECREE OF THE UNITED
STATES COURT FOR THE DISTRICT OF NEBRASKA ON NOVEMBER 1 AND 2, 1897. 
FN11  UTAH, ON JULY 1, 1897, GRANTED A CHARTER TO THE PRESENT UNION
PACIFIC RAILROAD COMPANY, AS THE FEDERAL GOVERNMENT OR ANY ONE OF
SEVERAL STATE GOVERNMENTS MIGHT HAVE DONE.  IT HAS BECOME ONE OF THE
GREAT AND STABLE TRANSPORTATION SYSTEMS OF THE UNITED STATES.    IF IT
HAD ONLY THE "OPPORTUNITIES" AND "BENEFITS" CONFERRED BY UTAH AND ONLY
THE PROPERTIES PROTECTED BY HER LAWS, THE UNION PACIFIC WOULD CUT
LITTLE FIGURE EITHER IN TRANSPORTATION OR FINANCE.  IT HOLDS ITS
STOCKHOLDERS' MEETINGS IN THAT STATE.  BUT IT MAINTAINS NO EXECUTIVE
OFFICE OR STOCK TRANSFER OFFICE IN UTAH.  ITS EXECUTIVE AND STOCK
TRANSFER OFFICES ARE IN NEW YORK CITY.  ITS STOCKS ARE LISTED ON THE
NEW YORK, BOSTON, LONDON, AND AMSTERDAM STOCK EXCHANGES.  OVER 200,000
SHARES OF ITS STOCK WERE TRADED ON THE NEW YORK STOCK EXCHANGE IN
1939.  FN12  ITS WESTERN OPERATING OFFICE IS NOT IN UTAH, BUT IN OMAHA,
NEBRASKA.  IT IS STIPULATED THAT LESS THAN 9% OF ITS 9877 MILES OF
TRACKAGE ARE IN UTAH AND THAT, DURING 1939, THE RAILWAY OPERATING
REVENUE FROM UTAH INTRASTATE BUSINESS PLUS THE UTAH PROPORTION ON A
MILEAGE BASIS OF ITS INTERSTATE BUSINESS WAS 8.97% OF THE ENTIRE GROSS
OPERATING REVENUES OF THE COMPANY. 

WHAT GIVES THE UNION PACIFIC STOCK ITS VALUE, ALL OF WHICH IS
APPROPRIATED BY THIS DECISION TO UTAH'S TAXING POWER, IS ITS OPERATION
IN INTERSTATE COMMERCE, A PRIVILEGE WHICH COMES FROM THE UNITED STATES
AND ONE WHICH UTAH DOES NOT GIVE OR PROTECT AND COULD NOT DENY.  THE
UNION PACIFIC SYSTEM ITSELF IS IN INTERSTATE OPERATION, EMBRACING
THIRTEEN STATES AND DRAWING ITS BUSINESS FROM THE WHOLE COUNTRY. 
APPROXIMATELY 37% OF ITS TOTAL TONNAGE WAS RECEIVED FROM CONNECTING
LINES.  FN13  IF THE VALUES DERIVED FROM PRIVILEGES EXTENDED BY THE
NATIONAL GOVERNMENT AND FROM RENDERING NATIONAL TRANSPORTATION WERE TO
BE ALLOCATED TO ANY SINGLE STATE FOR TAX PURPOSES, A REALISTIC BASIS
WOULD ENTITLE THE FIVE STATES OF IDAHO, KANSAS, NEBRASKA, OREGON, AND
WASHINGTON TO SOME CONSIDERATION, FOR EACH EMBRACES, AUTHORIZES, AND
PROTECTS BY ITS LAWS MORE MILES OF TRACKAGE THAN DOES UTAH.  FN14 

THESE FACTS LEAVE NOTHING OF UTAH'S CLAIM TO TAX THE FULL VALUE OF
UNION PACIFIC SHARES WHEN TRANSFERRED BY DEATH OF A NONRESIDENT
STOCKHOLDER, AND NO BASIS FOR THE COURT'S DECISION THAT IT MAY DO SO,
EXCEPT THE METAPHYSICS OF THE CORPORATE CHARTER. 

                                II 

THE THEORIES ON WHICH THIS CASE IS DECIDED CONTRAST SHARPLY WITH
CERTAIN HARD FACTS WHICH MEASURE THE DECISION'S PRACTICAL WISDOM OR
LACK OF IT. 

1.  THE EFFECT OF THE COURT'S DECISION IS TO INTENSIFY THE ALREADY
UNWHOLESOME CONFLICT AND FRICTION BETWEEN THE STATES OF THE UNION IN
COMPETITIVE EXPLOITATION OF INTANGIBLE PROPERTY AS A SOURCE OF DEATH
DUTIES. 

THE PRACTICAL ISSUE UNDERLYING THIS CASE IS NOT WHETHER THE HARKNESS
ESTATE SHALL PAY OR AVOID A TRANSFER TAX.  THE ISSUE IS WHETHER UTAH OR
NEW YORK WILL COLLECT THIS TAX.  IT IS ADMITTED THAT IF THIS COURT
BREATHES CONSTITUTIONALITY INTO THIS UTAH TAX, ALL THAT UTAH GETS WILL
BE CREDITED TO THE HARKNESS ESTATE ON ITS TAX PAYABLE IN NEW YORK AS
THE STATE OF DOMICILE.  THE RIGHT OF A STATE TO TAX SUCCESSION TO
CORPORATE STOCK BY DEATH OF ONE DOMICILED THEREIN, WHILE NOT ABROGATED,
IS NOW SUBJECTED TO AN INTERFERING AND OVERLAPPING RIGHT OF THE STATE
WHICH CHARTERED THE CORPORATION TO TAX THE SAME STOCK TRANSFER ON A
DIFFERENT AND INCONSISTENT PRINCIPLE.  SINCE THE CHARTERING STATE HAS
APPARENTLY BEEN EMPOWERED TO EXACT ITS TAX AS A CONDITION OF PERMITTING
THE TRANSFER, THE TAXING POWER OF THE STATE OF THE STOCKHOLDER'S
DOMICILE IS REALLY SUBORDINATED AND DEFERRED TO THE TAXING POWER OF THE
CHARTERING STATE.  BY LAYING ITS TAX ON THE GROSS VALUE TRANSFERRED,
IRRESPECTIVE OF THE NET VALUE OF THE DECEDENT'S ESTATE, THE CHARTERING
STATE MAY GIVE ITS TAX AN EFFECTIVE PRIORITY OF PAYMENT OVER THE TAXES
LAID BY THE DOMICILIARY STATE AND MAY COLLECT WHAT AMOUNTS TO AN
INHERITANCE TAX EVEN WHEN THERE IS NO NET ESTATE TO TRANSFER.  THUS,
THROUGH THE CORPORATE CHARTER FICTION, THE CHARTERING STATE MAY THRUST
ITS OWN TAX WITH EXTRATERRITORIAL EFFECT BETWEEN THE TAXING POWER OF
THE STATE OF DOMICILE AND TAX RESOURCES TO WHICH THAT STATE HAS HAD,
AND I THINK SHOULD HAVE, FIRST AND, UNDER ORDINARY CIRCUMSTANCES,
EXCLUSIVE RESORT. 

2.  TO SUBJECT INTANGIBLE PROPERTY TO MANY MORE SOURCES OF TAXATION
THAN OTHER WEALTH, PREJUDICES ITS RELATION TO OTHER INVESTMENTS AND
OTHER WEALTH BY A DISCRIMINATION WHICH HAS NO BASIS IN THE FUNCTION
THAT INTANGIBLES PERFORM FOR OUR PRESENT SOCIETY.  FN15  INTANGIBLES,
EXCEPT FOR GOVERNMENT ISSUES, ARE AN OUTGROWTH OF OUR MODERN
CORPORATION SYSTEM.  OF RELATIVELY RECENT GROWTH, THE CORPORATION HAS
BECOME ALMOST THE UNIT OF ORGANIZATION OF OUR ECONOMIC LIFE.  WHETHER
FOR GOOD OR ILL, THE STUBBORN FACT IS THAT IN OUR PRESENT SYSTEM THE
CORPORATION CARRIES ON THE BULK OF PRODUCTION AND TRANSPORTATION, IS
THE CHIEF EMPLOYER OF BOTH LABOR AND CAPITAL, PAYS A LARGE PART OF OUR
TAXES, AND IS AN ECONOMIC INSTITUTION OF SUCH MAGNITUDE AND IMPORTANCE
THAT THERE IS NO PRESENT SUBSTITUTE FOR IT EXCEPT THE STATE ITSELF. 
EXCEPT FOR THE EASY CIRCULATION AND READY ACCEPTABILITY OF PIECES OF
PAPER CHARACTERIZED AS STOCKS OR BONDS, THIS EXISTING SYSTEM COULD NOT
FUNCTION.  IT IS THESE INTANGIBLE SYMBOLS OR TOKENS WHICH GIVE
LIQUIDITY AND MOBILITY TO OTHERWISE FIXED UNDERLYING PLANT ASSETS,
WHICH GIVE READY NEGOTIABILITY TO FRACTIONAL INTERESTS THEREIN THAT
WOULD OTHERWISE TRANSFER WITH DIFFICULTY, AND WHICH DIVIDE AMONG MANY
BOTH BENEFITS AND RISKS FROM AGGREGATION OF PROPERTIES WHOSE SUCCESSFUL
FUNCTIONING FOR SOCIETY REQUIRES UNIFIED MANAGEMENT OF THE BULK.  THE
AMOUNT OF PLANT AND MATERIAL AND GOODS IN PROCESS, WORKING CAPITAL,
GOOD WILL, AND ORGANIZATION AT ANY TIME DEVOTED TO ENTERPRISE
SUBSTANTIALLY WILL DEPEND UPON THE WILLINGNESS OF THE PUBLIC TO STAND
IN THE POSITION OF STOCKHOLDER OR BONDHOLDER.  WHEN THIS COURT
DETERMINES THAT THE EFFECT OF OWNING THIS TYPE OF CIRCULATING MEDIUM IS
TO SUBJECT THE ESTATE OF THE OWNER TO AN INHERITANCE TAX FROM EVERY
STATE THAT CHARTERED ONE OF THE COMPANIES IN WHICH HE HAS INVESTED, IT
IMPOSES A HANDICAP ON SUCH OWNERSHIP THAT IS SUBSTANTIAL AND
INFLUENTIAL UPON OUR ECONOMY. 

NOT ONE SUBSTANTIAL EVIL IS SAID BY THE OPINION IN THIS CASE TO FLOW
FROM THE RULE BEING UPSET, AND EVILS OF SOME MAGNITUDE ADMITTEDLY
FOLLOW FROM THE ONE BEING REINSTATED.  THESE CONSEQUENCES THE COURT
DECLINES EVEN TO CONSIDER, ALTHOUGH THEY BEAR UPON A SEGMENT OF OUR
ECONOMY BIGGER THAN THE NATIONAL DEBT  FN16  AND AFFECT MORE PERSONS
THAN ARE NOW IN THE ARMED FORCES.  FN17 INTANGIBLES CONSTITUTE WELL
ABOVE 50% OF ALL PROPERTY TRANSFERRED BY DEATH,  FN18  AND AN EVEN
GREATER PROPORTION OF THAT TRANSFERRED BY GIFT, WHICH I ASSUME IS
EQUALLY VULNERABLE TO THIS TAX.  FN19  THE GRAVITY OF SUBJECTING SUCH
EXTENSIVE INTERESTS TO COMPLEX, CONFUSING, AND OVERLAPPING TAX
JURISDICTIONS SHOULD BE WEIGHED AGAINST THE REASONS ADVANCED FOR THE
CHANGE. 

THE REVENUE THAT THE STATES MAY COLLECT IN CONSEQUENCE OF THIS
DECISION IS NOT THE MEASURE OF THE BURDEN IT IMPOSES ON TAXPAYERS.  THE
ASCERTAINMENT OF TAXES OF THIS TYPE IS COSTLY AND WASTEFUL.  SUCH
TAXATION FREQUENTLY REQUIRES TAKING OUT ANCILLARY LETTERS IN THE STATE
OF THE CORPORATION'S DOMICILE, THE HIRING OF LOCAL COUNSEL, THE
FURNISHING OF AFFIDAVITS TO LOCAL PROBATE COURTS AND INHERITANCE TAX
OFFICIALS, AND THE PAYMENT OF VARIOUS FEES, COSTS, AND EXPENSES.  FOR
THE ASSURANCE OF LOCAL CREDITORS, BONDS ARE SOMETIMES REQUIRED AND LONG
KEPT IN FORCE.  REALIZATION UPON ASSETS AND DISTRIBUTION OF ESTATES IS
DELAYED BY INABILITY TO GET WAIVERS OR CONSENTS TO TRANSFER UNTIL AFTER
EXTENSIVE PROCEEDINGS HAVE BEEN CONDUCTED.  THE SERIOUSNESS OF THESE
BURDENS IS INCREASED IF THE DECEDENT OWNS STOCK IN CONSOLIDATED
CORPORATIONS INCORPORATED IN SEVERAL STATES; AND UNDER THIS DECISION
STOCKS OF SOME CONSOLIDATED RAILROADS WOULD BE SUBJECT TO TAX ON THEIR
FULL VALUES BY FIVE OR SIX STATES.  ONE NEED NOT BE UNDULY SOFT-HEARTED
TOWARDS TAXPAYERS TO DOUBT WHETHER THE EXHAUSTION OF ESTATES THROUGH
MULTIPLICATION OF REPORTS, RETURNS, APPRAISALS, LITIGATION, COUNSEL
FEES, AND EXPENSES ULTIMATELY MAKES FOR A SOUND FISCAL POLICY OR AN
ENLIGHTENED SOCIAL POLICY. 

MOREOVER, THE BURDENS IMPOSED BY THIS TYPE OF TAXATION ARE UNEQUAL AND
CAPRICIOUS AND IN INVERSE ORDER TO THE ABILITY OF THE ESTATE TO PAY.  I
SUPPOSE WE NEED HAVE LITTLE ANXIETY ABOUT MR. HARKNESS'S $87,000,000
NET ESTATE WITH ITS $1,000,000 INVESTMENT IN UNION PACIFIC STOCK.  AS
WE HAVE POINTED OUT, IT IS NOT HE, BUT THE STATE OF NEW YORK, THAT WILL
PAY THIS TAX TO THE STATE OF UTAH.  AND IF NEW YORK HAD NO PROVISION IN
ITS STATUTES FOR CREDIT AND MR. HARKNESS COULD HAVE FORESEEN THE SHIFT
OF POSITION OF THIS COURT, IT IS NOT LIKELY THAT HE WOULD HAVE BEEN
CAUGHT WITH THE TAX.  THOSE WHO HAVE LARGE ESTATES AND WATCHFUL LAWYERS
WILL FIND WAYS OF MINIMIZING THESE BURDENS.  BUT MR. HARKNESS IS NOT A
TYPICAL UNION PACIFIC STOCKHOLDER.  IN 1939, THE UNION PACIFIC HAD
50,131 STOCKHOLDERS.  FN20  THE MANY SMALL STOCKHOLDERS CANNOT AFFORD
PROFESSIONAL COUNSEL OR EVASION DEVICES.  THE BURDEN OF REPORTS AND
APPRAISALS AND FOREIGN TAX PROCEEDINGS BEARS HEAVILY UPON THEM BECAUSE
OF THE RELATIVELY SMALL AMOUNT INVOLVED IN THEIR TRANSFERS.  THE NEW
TAX WE HAVE AUTHORIZED UNDERMINES THE PRINCIPLE OF GRADUATION OF TAX
BURDENS IN PROPORTION TO ABILITY TO PAY.  NO TAX LAID ON ANYTHING LESS
THAN THE TOTAL NET WORTH OF THE ESTATE CAN BE GRADUATED EVEN ROUGHLY
ACCORDING TO THE PRINCIPLE WHICH PROGRESSIVE MODERN TAXATION STRIVES TO
HEED.  THE IMPOSITION OF UNPREDICTABLE ASSESSMENTS FROM MANY SOURCES
MAKES IT IMPOSSIBLE FOR THE STATE OF DOMICILE TO MAKE INTELLIGENT USE
OF ITS OWN TAXING POWER AS AN INSTRUMENT OF ENLIGHTENED SOCIAL POLICY. 
CHAOS SERVES NO SOCIAL END. 

3.  A LARGE MAJORITY OF THE STATES, BY EXPERIENCE PRIOR TO THE FIRST
NATIONAL BANK V. MAINE DECISION, FOUND THE SYSTEM OF TAXATION WHICH
THIS COURT IMPOSES ON ALL STATES TODAY TO BE UNWORKABLE AND TO
CONSTITUTE A THREAT TO THE DEATH TAX ON INTANGIBLES AS A STATE SOURCE
OF REVENUE.  COMPETITIVE USE BY THE STATES OF DEATH TAXATION AND
IMMUNITIES INVITED FEDERAL INVASION OF THE FIELD, ONE PHASE OF WHICH
WAS THE ENACTMENT BY CONGRESS OF SEC. 301, REVENUE ACT OF 1926,
SUSTAINED BY THIS COURT IN FLORIDA V. MELLON, 273 U.S. 12.  THERE THE
FEDERAL GOVERNMENT HAD LAID AN ESTATE TAX, BUT RETAINED ONLY 20% OF THE
REVENUE AND USED AN 80% CREDIT PROVISION TO EQUALIZE THE DEMANDS OF THE
STATES.  THERE WAS AN UNEASY PREMONITION AMONG THE STATES THAT
OVERLAPPING, CAPRICIOUS, AND MULTIPLE TAXATION WOULD LEAD TO FEDERAL
OCCUPATION OF THE FIELD.  APPEARING IN THE FIRST NATIONAL BANK CASE AS
AMICUS CURIAE, THE NEW YORK STATE TAX COMMISSION URGED THAT BOTH
PRINCIPLE AND POLICY PREVENT THE LEVYING OF TAXES BY MORE THAN ONE
JURISDICTION, AND ADDED:  "THE NEW YORK TAX COMMISSION BELIEVES THAT
THE PRESENT IS A CRUCIAL PERIOD IN THE DEVELOPMENT OF DEATH TAXATION IN
THIS COUNTRY AND THAT A FALSE STEP MAY MAKE IT DIFFICULT FOR THE STATES
TO RETAIN THE DEATH TAX AS A SOURCE OF SUBSTANTIAL REVENUE."  WE REVIEW
THEIR DIFFICULTIES. 

FARSIGHTED STATES SAW THAT THE TOTAL REVENUE RESOURCES PRACTICALLY
AVAILABLE TO THE STATES WAS NOT INCREASED BY OVERLAPPING THEIR TAXATION
AND INVADING EACH OTHER'S DOMICILIARY SOURCES OF TAXATION.  MANY FELT
THAT JUSTICE REQUIRED CREDITS TO THEIR OWN DOMICILED DECEDENTS' ESTATES
FOR TAXES EXACTED ELSEWHERE, AND THE CREDITS GRANTED OFFSET LARGELY THE
REVENUE DERIVED FROM THE TAX.  THE MULTIPLE TAXATION ADDED
SUBSTANTIALLY TO THE COST OF ADMINISTRATION AND TO THE ANNOYANCE OF
TAXPAYERS.  BECAUSE OF THESE CONSIDERATIONS, AT THE TIME OF ARGUMENT OF
FIRST NATIONAL BANK V. MAINE, THIRTY-SEVEN STATES HAD ENACTED
RECIPROCITY STATUTES WHICH VOLUNTARILY RENOUNCED REVENUES FROM THIS
TYPE OF TAXATION.  THE COURT WAS URGED TO STAY THE HAND OF SISTER
STATES WHICH WOULD NOT COOPERATE.  THE RESTRAINT LAID BY THIS COURT IN
RESPONSE TO THOSE APPEALS IS NOW WITHDRAWN AT THE BEHEST OF A STATE
WHICH HAS AT NO TIME ENACTED A RECIPROCITY STATUTE OR GIVEN A CREDIT
FOR SUCH TAXES PAID BY ITS DOMICILED DECEDENTS ELSEWHERE.  WE HAVE NOT
HEARD THE VIEWS OF ANY OTHER STATE NOR CONSIDERED THEIR CONCERN ABOUT
RETAINING THE SOURCE OF TAXATION OPENED TO THEM.  I DO NOT DOUBT THAT
TODAY'S DECISION WILL GIVE A NEW IMPETUS TO FEDERAL ABSORPTION OF THIS
REVENUE SOURCE AND TO FEDERAL INCORPORATION OF LARGE ENTERPRISES. 

4.  AN UNFORTUNATE ASPECT OF THIS DECISION IS THAT, IN COMMON WITH
OTHER JUDGE-MADE LAW, IT HAS RETROACTIVE EFFECT.  CONSEQUENTLY,
INEQUALITIES AND INJUSTICES WILL BE SUFFERED BY STATES AS WELL AS BY
INDIVIDUALS.  FOR EXAMPLE, THE STATE OF NEW YORK HAS WRITTEN INTO ITS
OWN CONSTITUTION THE LIMITATIONS ON ITS TAXING POWER WHICH THIS COURT
HAD ESTABLISHED BY THE DECISION WE NOW OVERRULE.  FN21  UNTIL IT CAN
ADJUST ITS CONSTITUTIONAL PROVISIONS, SUCH A STATE MAY NOT TAKE
ADVANTAGE OF THE TAX PRIVILEGES THE COURT CONFERS TODAY, ALTHOUGH OTHER
STATES MAY DO SO.  WE HAVE NOT BEEN ADVISED AS TO THE NUMBER OF STATES
WHICH HAVE REPEALED OR MODIFIED RECIPROCITY OR CREDIT PROVISIONS IN
THEIR OWN STATUTES OR CONSTITUTIONS IN RELIANCE UPON THE DECISION WE
OVERRULE.  CREDIT PROVISIONS CONTAINED IN STATUTES MAY BE THE
FOUNDATION FOR CLAIMS FOR REFUND AGAINST DOMICILIARY STATES AS
CHARTERING STATES PROCEED TO TAKE ADVANTAGE OF THE PRIVILEGE OF
RETROACTIVE TAXATION ACCORDED THEM BY THIS DECISION.  ESTATES CLOSED
AND DISTRIBUTED UNDER EXISTING LAWS BECOME INDEBTED BY FORCE OF THIS
DECISION TO CHARTERING STATES ON CLAIMS FOR TRANSFER TAX THAT MAY HAVE
EXISTED IN THE STATE STATUTES BUT HAD NEVER BEEN SUSPECTED OF HAVING
CONSTITUTIONAL VALIDITY.  FOR WHAT PERIODS THESE CLAIMS MAY HAVE
VITALITY DEPENDS ON STATE STATUTES OF LIMITATION.  WHETHER PERSONAL
LIABILITY MAY BE ASSERTED AGAINST EXECUTORS AND ADMINISTRATORS FOR
FAILURE TO PAY TAXES THAT OUR DECISIONS DID NOT TOLERATE AT THE TIME
THE ESTATES WERE CLOSED, LIKEWISE DEPENDS ON THE LAWS OF THE CHARTERING
STATES.  WITH CONFIDENCE WE MAY ANTICIPATE THAT THIS DECISION WILL
PRODUCE MUCH CONFUSION, SOME CONTROVERSY BETWEEN THE STATES, AND A
LUSTY CROP OF LITIGATION.         III 

THE COURT CASTS ASIDE FORMER LIMITATIONS ON STATE POWER TO TAX
NONRESIDENTS IN SUCH TERMS AS TO LEAVE DOUBT WHETHER ANY LEGAL
LIMITATIONS ARE HEREAFTER TO BE RECOGNIZED OR APPLIED.  THE OPINION OF
THE COURT SAYS THAT THE STATE MAY "CONSTITUTIONALLY MAKE ITS EXACTION"
"WHICH CAN DEMONSTRATE 'THE PRACTICAL FACT OF ITS POWER.'"  THE
CONCURRING OPINION ADDS THAT "EACH STATE OF THE UNION HAS THE SAME
TAXING POWER AS AN INDEPENDENT COUNTRY, EXCEPT INSOFAR AS THAT POWER
HAS BEEN CURTAILED BY THE FEDERAL CONSTITUTION," AND IT ENUMERATES
THREE LIMITATIONS, EACH OF WHICH PROHIBITS A KIND OF TAX OR PROTECTS
KINDS OF BUSINESS FROM TAX; BUT NONE OF THEM RESTRAINS TAXATION BY
REFERENCE TO WHAT WE HAVE USUALLY EXPRESSED BY "JURISDICTION."  IT IS
TRUE THAT THE CONCURRING OPINION SAYS THAT "THE DUE PROCESS CLAUSE HAS
ITS APPLICATION TO THE TAXING POWER OF THE STATES," BUT WE ARE NOT TOLD
WHAT IT MAY BE, AND IT IS DIFFICULT TO CONCEIVE OF A SITUATION WHERE IT
WILL EVER BE USEFUL IF IT MAY NOT BE CONSIDERED AS A TEST OF
JURISDICTION TO IMPOSE A TAX. 

DESPITE TODAY'S DECISION, I TRUST THIS COURT DOES NOT INTEND TO SAY
THAT MIGHT ALWAYS MAKES RIGHT IN THE MATTER OF TAXATION.  I HOPE THERE
IS AGREEMENT, THOUGH UNEXPRESSED, THAT THERE ARE LIMITS, AND THAT OUR
PROBLEM IS TO SEARCH OUT AND MARK THOSE LIMITS.  ONE WAY TO GO ABOUT IT
IS TO SAY THAT THOSE STATES CAN TAX WHICH HAVE THE PHYSICAL POWER TO DO
SO AND HAVE CONFERRED SOME BENEFITS OR PROTECTION ON THE TAXPAYER.  OF
COURSE THERE IS NOTHING IN THE CONSTITUTION ABOUT THIS, BUT THAT IS A
CRITICISM THAT CAN BE DIRECTED AT ANY TEST THAT I CAN THINK OF.  MY
DIFFICULTY IS THAT ON ITS FACE - AND AS SO FAR APPLIED - THIS TEST
COMES OUT TO THE POINT WHERE MIGHT DOES MAKE RIGHT.  FOR IN A VERY REAL
SENSE EVERY STATE AND TERRITORY IN THE UNION HAS CONFERRED VERY REAL
BENEFITS UPON EVERY INHABITANT OF THE UNION.  SOME STATES HAVE SEEN TO
IT THAT OUR FOOD IS PROPERLY PRODUCED AND INSPECTED; OTHERS HAVE
FOSTERED AND PROTECTED THE INDUSTRY UPON WHICH WE ARE UTTERLY DEPENDENT
FOR THE ORDINARY CONVENIENCES OF LIFE AND FOR LIFE ITSELF.  ALL OF THEM
HAVE YIELDED UP MEN TO PROVIDE GOVERNMENT AT HOME AND TO REPEAL THE
ENEMY ABROAD.  I AM THE VERY REAL DEBTOR, BUT AM FRANK ENOUGH TO SAY I
HOPE NOT A POTENTIAL TAXPAYER, OF ALL. 

CERTAIN IT IS THAT WHILE ONLY CORPORATE STOCK IS EXPRESSLY MENTIONED
IN THE OPINION OR INVOLVED IN THE JUDGMENT TODAY, THE FICTION OF
BENEFITS AND PROTECTION IS CAPABLE OF AS READY ADAPTABILITY TO OTHER
INTANGIBLE PROPERTY.  OUR TOMORROWS WILL WITNESS AN EXTENSION OF THE
TAXING POWER OF THE CHARTERING OR ISSUING STATE TO CORPORATE BONDS AND
BONDS OF STATES AND MUNICIPALITIES (BY OVERRULING FARMERS LOAN & TRUST
CO. V. MINNESOTA, 280 U.S. 204), TO BANK CREDITS FOR CASH DEPOSITED (BY
OVERRULING BALDWIN V. MISSOURI, 281 U.S. 586), AND TO CHOSES IN ACTION
(BY OVERRULING BEIDLER V. SOUTH CAROLINA, 282 U.S. 1).  AND WHILE TODAY
THE COURT SUSTAINS ONLY A DEATH TRANSFER TAX, ITS THEORIES ARE EQUALLY
SERVICEABLE TO SUSTAIN AN INCOME OR EXCISE TAX, ON DIVIDENDS FROM SUCH
STOCK OR INTEREST ON BONDS, OR A SALES TAX, OR A GIFT TAX.  WHETHER
EACH CHARTERING OR ISSUING STATE WILL BE PERMITTED TO CALCULATE ITS TAX
ON SOME FORMULA THAT WILL CONSIDER THE TOTAL PROPERTY OWNED BY THE
DECEDENT, I DO NOT KNOW, BUT IN THE PRESENT TREND OF DECISION THERE IS
LITTLE RESTRAINT ON SUCH FORMULAS.  I THEREFORE TAKE TODAY'S DECISION
TO MEAN THAT ANY STATE MAY LAY SUBSTANTIALLY ANY TAX ON ANY TRANSFER OF
INTANGIBLE PROPERTY TOWARD WHICH IT CAN SPELL OUT A CONCEIVABLE LEGAL
RELATIONSHIP. 

AND SINCE THE DUE PROCESS CLAUSE SPEAKS WITH NO MORE CLARITY AS TO
TANGIBLE THAN AS TO INTANGIBLE PROPERTY, THE QUESTION IS OPENED WHETHER
OUR DECISIONS AS TO TAXATION OF TANGIBLE PROPERTY ARE NOT DUE TO BE
OVERHAULED.  AND IF THE STATE OF UTAH IS NOT DENIED JURISDICTION OVER
THE TRANSFER OF THIS STOCK OWNED BY A NEW YORK RESIDENT, IT IS
DIFFICULT TO SEE WHERE THE COURT COULD FIND A BASIS FOR DENYING IT
JURISDICTION TO PRESCRIBE THE RULE OF SUCCESSION TO IT. 

THE COURT, IT SEEMS TO ME, WILL BE OBLIGED TO DRAW THE LINE AT WHICH
STATE POWER TO REACH NONRESIDENTS' ESTATES AND EXTRATERRITORIAL
TRANSACTIONS COMES TO AN END.  I FIND LITTLE DIFFICULTY IN CONCLUDING
THAT EXACTION OF A TAX BY A STATE WHICH HAS NO JURISDICTION OR LAWFUL
AUTHORITY TO IMPOSE IT IS A TAKING OF PROPERTY WITHOUT DUE PROCESS OF
LAW.  THE DIFFICULTY IS THAT THE CONCEPT OF JURISDICTION IS NOT DEFINED
BY THE CONSTITUTION.  ANY DECISION WHICH ACCEPTS OR REJECTS ANY ONE OF
THE MANY GROUNDS ADVANCED AS JURISDICTIONAL FOR STATE TAXING PURPOSES
FN22  WILL READ INTO THE CONSTITUTION AN INCLUSION OR AN EXCLUSION THAT
IS NOT FOUND IN ITS TEXT.  TO READ INTO THE CONSTITUTION THE COURT'S
PRESENT CONCEPT OF JURISDICTION THROUGH CHARTER GRANTING, AND TO HOLD
THAT IT FOLLOWS THAT THE CONSTITUTION DOES NOT PROHIBIT THIS TAX, IS TO
MAKE NEW LAW QUITE AS CERTAINLY AS TO ADHERE TO THE CONCEPT OF
JURISDICTION ACCORDING TO THE DECEDENT'S DOMICILE AND TO HOLD THAT THE
CONSTITUTION THEREFORE DOES PROHIBIT IT.  FN23 

I AM CONTENT WITH EXISTING CONSTITUTIONAL LAW UNLESS IT APPEARS MORE
PLAINLY THAT IT IS UNSOUND OR UNTIL IT WORKS BADLY IN OUR PRESENT DAY
AND SOCIETY. 

FN1  OF ONE OF THEM, MR. JUSTICE HOLMES SAID:  "IT SEEMS TO ME THAT
THE RESULT REACHED BY THE COURT PROBABLY IS A DESIRABLE ONE, BUT I
HARDLY UNDERSTAND HOW IT CAN BE DEDUCED FROM THE FOURTEENTH AMENDMENT
..."  UNION REFRIGERATOR TRANSIT CO. V. KENTUCKY, 199 U.S. 194, 211. 

FN2  A CORPORATION IS DEFINED BY JOHN MARSHALL AS "AN ARTIFICIAL
BEING, INVISIBLE, INTANGIBLE, AND EXISTING ONLY IN CONTEMPLATION OF
LAW."  TRUSTEES OF DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518, 636. 
THE NEW YORK COURT OF APPEALS HAS SAID:  "A CORPORATION, HOWEVER, IS A
MERE CONCEPTION OF THE LEGISLATIVE MIND.  IT EXISTS ONLY ON PAPER
THROUGH THE COMMAND OF THE LEGISLATURE THAT ITS MENTAL CONCEPTION SHALL
BE CLOTHED WITH POWER."  PEOPLE V. KNAPP, 206 N.Y. 373, 381, 99 N.E.
841, 844.  "IT TOOK HALF A CENTURY OF LITIGATION IN THIS COURT FINALLY
TO CONFER ON A CORPORATION, THROUGH THE USE OF A FICTION, CITIZENSHIP
IN THE CHARTERING STATE FOR JURISDICTIONAL PURPOSES.  ...  THROUGHOUT,
THE MODE OF THOUGHT WAS METAPHORICAL."  MR. JUSTICE FRANKFURTER, IN
NEIRBO CO. V. BETHLEHEM SHIPBUILDING CORP., 308 U.S. 165, 169.  COMPARE
THE CASES WHERE COURTS ARE OBLIGED TO DISREGARD THE CORPORATE ENTITY TO
AVOID A VARIETY OF INJUSTICES.  SEE WORMSER, DISREGARD OF THE CORPORATE
FICTION (1927). 

FN3  6 MESSAGES AND PAPERS OF THE PRESIDENTS 2558, MESSAGE OF
DECEMBER 4, 1849.  PRESIDENT BUCHANAN ALSO REPEATEDLY RECOMMENDED THE
ROAD AS A DEFENSE NECESSITY TO BE CONSTRUCTED UNDER THE WAR POWER.  ID.
AT 2988; ID., VOL. 7, AT 3057, 3103, 3181. 

FN4  10 STAT. 219. 

FN5  TROTTMAN, HISTORY OF THE UNION PACIFIC (1923) 8. 

FN6  SANDBURG, ABRAHAM LINCOLN - THE WAR YEARS, VOL. 1, 510.  SEE
ALSO VOL. 2, 461, FOR AN ACCOUNT OF LINCOLN'S SELECTION OF THE LOCATION
OF ITS EASTERN TERMINAL. 

FN7  IT GRANTED A RIGHT OF WAY ACROSS THE PUBLIC LANDS OWNED BY THE
UNITED STATES AND A SUBSIDY LOAN OF $16,000 PER MILE FOR THE
CONSTRUCTION ON THE PLAIN, $48,000 PER MILE FOR ONE HUNDRED AND FIFTY
MILES OVER THE ROCKY MOUNTAINS, AND $32,000 PER MILE FOR THE
REMAINDER.  THE CONSTRUCTION AMOUNTED TO 1,034 MILES, AND THE SUBSIDY
LOAN TO $27,236,512.  THE CENTRAL PACIFIC, FOR 883 MILES CONSTRUCTED
FROM SAN FRANCISCO TO MEET THE UNION PACIFIC, RECEIVED NEARLY AN EQUAL
AMOUNT.  12 STAT. 489.  FURTHER GRANTS WERE MADE BY AN ACT OF JULY 2,
1864, 13 STAT. 356. 

FN8  11 MESSAGES AND PAPERS OF THE PRESIDENTS 638. 

FN9  BOWERS, THE TRAGIC ERA (1929) 396 ET SEQ. 

FN10  13 MESSAGES AND PAPERS OF THE PRESIDENTS 5969. 

FN11  13 MESSAGES AND PAPERS OF THE PRESIDENTS 6273, 6343, 6390. 

FN12  MOODY'S STEAM RAILROADS (1940) 907. 

FN13  MOODY'S STEAM RAILROADS (1940) 895. 

FN14  MILEAGE OF THE SYSTEM IS AS FOLLOWS:  (1) IDAHO, 2051.12; (2)
NEBRASKA, 1355.68; (3) OREGON, 1172.48; (4) KANSAS, 1159.87; (5)
WASHINGTON, 1047.04; (6) UTAH, 888.47; (7) WYOMING, 717.32; (8)
COLORADO, 609.13; (9) CALIFORNIA, 390.52; (10) NEVADA, 358.12; (11)
MONTANA, 143.46; (12) IOWA, 2.48; (13) MISSOURI, 2.16.  MOODY'S STEAM
RAILROADS (1940) 893. 

FN15  THE BURDENS IMPOSED BY THE PRESENT DECISION ARE CUMULATIVE AND
MUST BE CONSIDERED IN RELATION TO TAXATION OF INTANGIBLES IN SOME
CIRCUMSTANCES BY STATES OTHER THAN THAT OF DOMICILE (CURRY V.
MCCANLESS, 307 U.S. 357; GRAVES V. ELLIOTT, 307 U.S. 383), AND ALSO IN
REFERENCE TO THE CLOSING OF THE FEDERAL COURTS TO BOTH STATE AND
TAXPAYERS WHERE DIFFERENT STATE COURTS MAKE INCONSISTENT FINDINGS ON
DOMICILE RESULTING IN ESTATE TAXATION BY TWO OR MORE STATES. 
MASSACHUSETTS V. MISSOURI, 308 U.S. 1; TEXAS V. FLORIDA, 306 U.S. 398;
WORCESTER COUNTY TRUST CO. V. RILEY, 302 U.S. 292; NEW JERSEY V.
PENNSYLVANIA, 287 U.S. 580; DORRANCE V. PENNSYLVANIA, 287 U.S. 660 AND
288 U.S. 617, CERTIORARI DENIED TO REVIEW DORRANCE'S ESTATE, 309 PA.
151; HILL V. MARTIN, 296 U.S. 393; DORRANCE V. MARTIN, 298 U.S. 678,
CERTIORARI DENIED TO REVIEW DORRANCE V. THAYER-MARTIN, 116 N.J.L. 362;
SARGENT AND TWEED, DEATH AND TAXES ARE CERTAIN - BUT WHAT OF DOMICILE?,
53 HARVARD L. REV. 68; CF. TREINIES V. SUNSHINE MINING CO., 308 U.S.
66. 

FN16  U.S. TREASURY STATISTICS OF INCOME FOR 1938, PART II, P.
4(LATEST AVAILABLE) SHOWS THAT 520,501 CORPORATIONS FILED RETURNS. 
169,884 OF THEM REPORTED NET INCOME AGGREGATING $6,525,979,257, WHILE
301,148 REPORTED AN AGGREGATE LOSS FOR THE YEAR OF $2,853,097,727. 

THE COMMISSIONER COMPUTES DIVIDENDS PAID IN CASH OR ASSETS OTHER THAN
STOCK TO HAVE BEEN $5,013,432,827.  ID. AT 22. 

BALANCE SHEETS WERE SUBMITTED BY 411,941 CORPORATIONS SHOWING TOTAL
ASSETS OF $300,021,727,000.  ID. AT 28. 

THE VOLUME OF INTANGIBLES AFLOAT AS A RESULT OF CORPORATE FINANCING
IS NOT SPECIFICALLY CALCULATED, BUT SOME IDEA OF IT IS GLEANED FROM THE
AGGREGATE OF ITEMS AS FOLLOWS: 

COMMON STOCK..................$74,791,662,000 

PREFERRED STOCKS.............. 18,108,066,000 

BONDS, NOTES AND MORTGAGES - 

MATURITY 1 YEAR OR MORE....... 50,278,233,000 IBID. 

FN17  I KNOW OF NO ACCURATE CALCULATION OF THE NUMBER OF PERSONS WHO
HOLD STOCKS OR BONDS.  MANY ESTIMATES ARE EXTRAVAGANT AND INCLUDE AN
ENORMOUS AMOUNT OF DUPLICATIONS - FOR EXAMPLE, THE AGGREGATE OF
STOCKHOLDERS' LISTS OF ALL CORPORATIONS.  I THINK THE ESTIMATE OF BERLE
AND MEANS AS OF 1927 THAT BETWEEN FOUR AND SIX MILLION PERSONS OWNED
STOCKS, INCLUDING AN ESTIMATED TWO MILLION EMPLOYEE OR CUSTOMER
STOCKHOLDERS, IS A REASONABLE ONE.  THE MODERN CORPORATION AND PRIVATE
PROPERTY (1934) 374.  MANY ARE, OF COURSE, ALSO BONDHOLDERS, AND THE
NUMBER TO BE ADDED AFTER ALLOWING FOR DUPLICATION IS DIFFICULT TO
ESTIMATE.  IT MUST ALSO, OF COURSE, BE BORNE IN MIND THAT THIS INCLUDES
MANY VERY SMALL HOLDINGS AND THAT SUCH STATISTICS ARE OF LITTLE VALUE
IN CONSIDERING THE RELATIVE BENEFITS FROM SUCH HOLDINGS DERIVED BY
THOSE IN DIFFERENT INCOME BRACKETS. 

FN18  UNITED STATES TREASURY STATISTICS OF INCOME FOR 1938, PART I,
P. 220, SHOWS THAT 15,221 ESTATES FILED RETURNS SHOWING TOTAL GROSS
ESTATES OF $2,746,143,000, OF WHICH REAL ESTATE WAS $433,487,000,
TANGIBLE PERSONAL PROPERTY, $34,637,000, AND INTANGIBLE PERSONAL
PROPERTY $2,278,019,000. 

THE INTANGIBLES SO REPORTED INCLUDED: 

CAPITAL STOCK IN CORPORATIONS..........  $1,079,231,000 

STATE AND MUNICIPAL BONDS..............     242,537,000 

GOVERNMENT BONDS.......................     148,802,000 

OTHER BONDS............................     164,796,000 

OF COURSE IT DOES NOT FOLLOW THAT THE SAME PROPORTIONS HOLD GOOD FOR
ESTATES TOO SMALL TO BE REPORTED UNDER FEDERAL LAW.  BECAUSE THEY WOULD
BE MORE HEAVILY WEIGHTED WITH FARM AND HOME OWNING, I AM CONFIDENT
THESE STATISTICS DO NOT PRESENT PROPORTIONS APPLICABLE TO ALL TRANSFERS
BY DEATH.  THEY DO, I BELIEVE, SUSTAIN THE STATEMENT MADE IN THE TEXT. 

FN19  UNITED STATES TREASURY STATISTICS OF INCOME FOR 1938, PART I,
P. 264, SHOW TOTAL GIFTS REPORTED FOR TAXATION AS - 

REAL ESTATE...............................  $41,241,000 

STOCKS AND BONDS..........................  214,583,000 

CASH......................................   72,390,000 

INSURANCE.................................   21,795,000 

MISCELLANEOUS.............................   49,764,000 

FN20  MOODY'S STEAM RAILROADS (1940) 888. 

FN21  ARTICLE XVI, SEC. 3 OF THE NEW YORK STATE CONSTITUTION, ADOPTED
IN 1938, PROVIDES: 

"MONEYS, CREDITS, SECURITIES AND OTHER INTANGIBLE PERSONAL PROPERTY
WITHIN THE STATE NOT EMPLOYED IN CARRYING ON ANY BUSINESS THEREIN BY
THE OWNER SHALL BE DEEMED TO BE LOCATED AT THE DOMICILE OF THE OWNER
FOR PURPOSES OF TAXATION, AND, IF HELD IN TRUST, SHALL NOT BE DEEMED TO
BE LOCATED IN THIS STATE FOR PURPOSES OF TAXATION BECAUSE OF THE
TRUSTEE BEING DOMICILED IN THIS STATE, PROVIDED THAT IF NO OTHER STATE
HAS JURISDICTION TO SUBJECT SUCH PROPERTY HELD IN TRUST TO DEATH
TAXATION, IT MAY BE DEEMED PROPERTY HAVING A TAXABLE SITUS WITHIN THIS
STATE FOR PURPOSES OF DEATH TAXATION.  INTANGIBLE PERSONAL PROPERTY
SHALL NOT BE TAXED AD VALOREM NOR SHALL ANY EXCISE TAX BE LEVIED SOLELY
BECAUSE OF THE OWNERSHIP OR POSSESSION THEREOF, EXCEPT THAT THE INCOME
THEREFROM MAY BE TAKEN INTO CONSIDERATION IN COMPUTING ANY EXCISE TAX
MEASURED BY INCOME GENERALLY.  UNDISTRIBUTED PROFITS SHALL NOT BE
TAXED."    THAT DECISION APPARENTLY ENDED THE NECESSITY FOR RECIPROCAL
EXEMPTION AND I KNOW OF NONE ENACTED SINCE.  TEXAS AND MISSOURI APPEAR
TO HAVE OMITTED RECIPROCAL EXEMPTION PROVISIONS IN LATER REVISIONS OF
THEIR INHERITANCE TAX LAWS. 

FN22  SEE LOWNDES, STATE TAXATION OF INHERITANCES, 29 MICHIGAN LAW
REVIEW 850; HINE, SITUS OF SHARES ISSUED UNDER THE UNIFORM STOCK
TRANSFER ACT, 87 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 700. 

FN23  BUT FEAR OF LEGISLATING NEED NOT INTIMIDATE THOSE OF EITHER
VIEW.  THE NECESSITY OF EVENTUALLY FINDING SOME JURISDICTIONAL BASIS
FOR STATE ACTION AFFECTING NONRESIDENTS PRESENTS A PROBLEM SIMILAR TO
THAT STATED BY MR. JUSTICE HOLMES IN SOUTHERN PACIFIC CO. V. JENSEN,
244 U.S. 205, 221:  "I RECOGNIZE WITHOUT HESITATION THAT JUDGES DO AND
MUST LEGISLATE, BUT THEY CAN DO SO ONLY INTERSTITIALLY; THEY ARE
CONFINED FROM MOLAR TO MOLECULAR MOTIONS."  AND ANOTHER CANDID JURIST
HAS SAID:  "I WILL NOT HESITATE IN THE SILENCE OR INADEQUACY OF FORMAL
SOURCES TO INDICATE AS THE GENERAL LINE OF DIRECTION FOR THE JUDGE THE
FOLLOWING:  THAT HE OUGHT TO SHAPE HIS JUDGMENT OF THE LAW IN OBEDIENCE
TO THE SAME AIMS WHICH WOULD BE THOSE OF A LEGISLATOR WHO WAS PROPOSING
TO HIMSELF TO REGULATE THE QUESTION."  CARDOZO, THE NATURE OF THE
JUDICIAL PROCESS (1932) 120. 

WHERE PRESCRIBED SOURCES OF LAW FAIL TO GUIDE THE JUDICIAL PROCESS,
THE SWISS CIVIL CODE PROVIDES THAT THE JUDGE "MUST PRONOUNCE JUDGMENT
ACCORDING TO THE RULE WHICH HE WOULD SET UP IF HE WERE LEGISLATOR
HIMSELF."  WILLIAMS, SOURCES OF LAW IN THE SWISS CIVIL CODE (1923) 34
ET SEQ.; SCHOCH, THE SWISS CONFLICT OF LAWS, 55 HARVARD LAW REVIEW 738,
749, NOTE 57.  THE SWISS MAY HAVE THOUGHT A CANDID RECOGNITION OF WHAT
NECESSARILY IS THE PRACTICE WOULD FORESTALL JUDICIAL DISCLAIMER OF
RESPONSIBILITY FOR THE PRACTICAL CONSEQUENCES OF LAW ANNOUNCED. 

MR. JUSTICE ROBERTS CONCURS IN THIS OPINION. 
..END :














VALENTINE V. CHRESTENSEN, 316 U.S. 52 


NO. 707.  ARGUED MARCH 31, 1942.  - DECIDED APRIL 13, 1942.  - 122 F.2D
511, REVERSED. 


1.  A MUNICIPAL ORDINANCE FORBIDDING DISTRIBUTION IN THE STREETSOF
PRINTED HANDBILLS BEARING COMMERCIAL ADVERTISING MATTER, HELD
CONSTITUTIONAL.  P. 54. 

2.  A CONSTITUTIONAL RIGHT TO DISTRIBUTE IN THE STREETS HANDBILLS OF
PRINTED COMMERCIAL ADVERTISING MATTER, CONTRARY TO A MUNICIPAL
ORDINANCE, CAN NOT BE ACQUIRED BY ADDING TO THE HANDBILLS MATTER OF
POSSIBLE PUBLIC INTEREST WHICH BY ITSELF MIGHT BE PRIVILEGED BUT WHICH
IS ADDED WITH THE PURPOSE OF EVADING THE PROHIBITION OF THE ORDINANCE
WITH RESPECT TO THE ADVERTISING MATTER.  P. 55. 

VALENTINE, POLICE COMMISSIONER OF THE CITY OF NEW YORK, V.
CHRESTENSEN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 314 U.S. 604, TO REVIEW A DECREE WHICH AFFIRMED A DECREE,
34 F.SUPP.  596, PERMANENTLY ENJOINING THE POLICE COMMISSIONER OF THE
CITY OF NEW YORK FROM INTERFERING WITH DISTRIBUTION OF RESPONDENT'S
HANDBILLS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, A CITIZEN OF FLORIDA, OWNS A FORMER UNITED STATES
NAVY SUBMARINE WHICH HE EXHIBITS FOR PROFIT.  IN 1940 HE BROUGHT IT TO
NEW YORK CITY AND MOORED IT AT A STATE PIER IN THE EAST RIVER.  HE
PREPARED AND PRINTED A HANDBILL ADVERTISING THE BOAT AND SOLICITING
VISITORS FOR A STATED ADMISSION FEE.  ON HIS ATTEMPTING TO DISTRIBUTE
THE BILL IN THE CITY STREETS, HE WAS ADVISED BY THE PETITIONER, AS
POLICE COMMISSIONER, THAT THIS ACTIVITY WOULD VIOLATE SEC. 318 OF THE
SANITARY CODE, WHICH FORBIDS DISTRIBUTION IN THE STREETS OF COMMERCIAL
AND BUSINESS ADVERTISING MATTER,  FN1  BUT WAS TOLD THAT HE MIGHT
FREELY DISTRIBUTE HANDBILLS SOLELY DEVOTED TO "INFORMATION OR A PUBLIC
PROTEST." 

RESPONDENT THEREUPON PREPARED AND SHOWED TO THE PETITIONER, IN PROOF
FORM, A DOUBLE-FACED HANDBILL.  ON ONE SIDE WAS A REVISION OF THE
ORIGINAL, ALTERED BY THE REMOVAL OF THE STATEMENT AS TO ADMISSION FEE
BUT CONSISTING ONLY OF COMMERCIAL ADVERTISING.  ON THE OTHER SIDE WAS A
PROTEST AGAINST THE ACTION OF THE CITY DOCK DEPARTMENT IN REFUSING THE
RESPONDENT WHARFAGE FACILITIES AT A CITY PIER FOR THE EXHIBITION OF HIS
SUBMARINE, BUT NO COMMERCIAL ADVERTISING.  THE POLICE DEPARTMENT
ADVISED THAT DISTRIBUTION OF A BILL CONTAINING ONLY THE PROTEST WOULD
NOT VIOLATE SEC. 318, AND WOULD NOT BE RESTRAINED, BUT THAT
DISTRIBUTION OF THE DOUBLE-FACED BILL WAS PROHIBITED.  THE RESPONDENT,
NEVERTHELESS, PROCEEDED WITH THE PRINTING OF HIS PROPOSED BILL AND
STARTED TO DISTRIBUTE IT.  HE WAS RESTRAINED BY THE POLICE. 

RESPONDENT THEN BROUGHT THIS SUIT TO ENJOIN THE PETITIONER FROM
INTERFERING WITH THE DISTRIBUTION.  IN HIS COMPLAINT HE ALLEGED
DIVERSITY OF CITIZENSHIP; AN AMOUNT IN CONTROVERSY IN EXCESS OF $3,000;
THE ACTS AND THREATS OF THE PETITIONER UNDER THE PURPORTED AUTHORITY OF
SEC. 318; ASSERTED A CONSEQUENT VIOLATION OF SEC. 1 OF THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION; AND PRAYED AN INJUNCTION.  THE DISTRICT
COURT GRANTED AN INTERLOCUTORY INJUNCTION, FN2  AND AFTER TRIAL ON A
STIPULATION FROM WHICH THE FACTS APPEAR AS ABOVE RECITED, GRANTED A
PERMANENT INJUNCTION.  THE CIRCUIT COURT OF APPEALS, BY A DIVIDED
COURT, AFFIRMED.  FN3 

THE QUESTION IS WHETHER THE APPLICATION OF THE ORDINANCE TO THE
RESPONDENT'S ACTIVITY WAS, IN THE CIRCUMSTANCES, AN UNCONSTITUTIONAL
ABRIDGEMENT OF THE FREEDOM OF THE PRESS AND OF SPEECH. 

1.  THIS COURT HAS UNEQUIVOCALLY HELD THAT THE STREETS ARE PROPER
PLACES FOR THE EXERCISE OF THE FREEDOM OF COMMUNICATING INFORMATION AND
DISSEMINATING OPINION AND THAT, THOUGH THE STATES AND MUNICIPALITIES
MAY APPROPRIATELY REGULATE THE PRIVILEGE IN THE PUBLIC INTEREST, THEY
MAY NOT UNDULY BURDEN OR PROSCRIBE ITS EMPLOYMENT IN THESE PUBLIC
THOROUGHFARES.  WE ARE EQUALLY CLEAR THAT THE CONSTITUTION IMPOSES NO
SUCH RESTRAINT ON GOVERNMENT AS RESPECTS PURELY COMMERCIAL
ADVERTISING.  WHETHER, AND TO WHAT EXTENT, ONE MAY PROMOTE OR PURSUE A
GAINFUL OCCUPATION IN THE STREETS, TO WHAT EXTENT SUCH ACTIVITY SHALL
BE ADJUDGED A DEROGATION OF THE PUBLIC RIGHT OF USER, ARE MATTERS FOR
LEGISLATIVE JUDGMENT.  THE QUESTION IS NOT WHETHER THE LEGISLATIVE BODY
MAY INTERFERE WITH THE HARMLESS PURSUIT OF A LAWFUL BUSINESS, BUT
WHETHER IT MUST PERMIT SUCH PURSUIT BY WHAT IT DEEMS AN UNDESIRABLE
INVASION OF, OR INTERFERENCE WITH, THE FULL AND FREE USE OF THE
HIGHWAYS BY THE PEOPLE IN FULFILLMENT OF THE PUBLIC USE TO WHICH
STREETS ARE DEDICATED.  IF THE RESPONDENT WAS ATTEMPTING TO USE THE
STREETS OF NEW YORK BY DISTRIBUTING COMMERCIAL ADVERTISING, THE
PROHIBITION OF THE CODE PROVISION WAS LAWFULLY INVOKED AGAINST HIS
CONDUCT. 

2.  THE RESPONDENT CONTENDS THAT, IN TRUTH, HE WAS ENGAGED IN THE
DISSEMINATION OF MATTER PROPER FOR PUBLIC INFORMATION, NONE THE LESS SO
BECAUSE THERE WAS INEXTRICABLY ATTACHED TO THE MEDIUM OF SUCH
DISSEMINATION COMMERCIAL ADVERTISING MATTER.  THE COURT BELOW APPEARS
TO HAVE TAKEN THIS VIEW, SINCE IT ADVERTS TO THE THE DIFFICULTY OF
APPORTIONING, IN A GIVEN CASE, THE CONTENTS OF THE COMMUNICATION AS
BETWEEN WHAT IS OF PUBLIC INTEREST AND WHAT IS FOR PRIVATE PROFIT.  WE
NEED NOT INDULGE NICE APPRAISAL BASED UPON SUBTLE DISTINCTIONS IN THE
PRESENT INSTANCE NOR ASSUME POSSIBLE CASES NOT NOW PRESENTED.  IT IS
ENOUGH FOR THE PRESENT PURPOSE THAT THE STIPULATED FACTS JUSTIFY THE
CONCLUSION THAT THE AFFIXING OF THE PROTEST AGAINST OFFICIAL CONDUCT TO
THE ADVERTISING CIRCULAR WAS WITH THE INTENT, AND FOR THE PURPOSE, OF
EVADING THE PROHIBITION OF THE ORDINANCE.  IF THAT EVASION WERE
SUCCESSFUL, EVERY MERCHANT WHO DESIRES TO BROADCAST ADVERTISING
LEAFLETS IN THE STREETS NEED ONLY APPEND A CIVIC APPEAL, OR A MORAL
PLATITUDE, TO ACHIEVE IMMUNITY FROM THE LAW'S COMMAND. 

THE DECREE IS REVERSED. 

FN1  "HANDBILLS, CARDS AND CIRCULARS.  - NO PERSON SHALL THROW, CAST
OR DISTRIBUTE, OR CAUSE OR PERMIT TO BE THROWN, CAST OR DISTRIBUTED,
ANY HANDBILL, CIRCULAR, CARD, BOOKLET, PLACARD OR OTHER ADVERTISING
MATTER WHATSOEVER IN OR UPON ANY STREET OR PUBLIC PLACE, OR IN A FRONT
YARD OR COURT YARD, OR ON ANY STOOP, OR IN THE VESTIBULE OR ANY HALL OF
ANY BUILDING, OR IN A LETTERBOX THEREIN; PROVIDED THAT NOTHING HEREIN
CONTAINED SHALL BE DEEMED TO PROHIBIT OR OTHERWISE REGULATE THE
DELIVERY OF ANY SUCH MATTER BY THE UNITED STATES POSTAL SERVICE, OR
PROHIBIT THE DISTRIBUTION OF SAMPLE COPIES OF NEWSPAPERS REGULARLY SOLD
BY THE COPY OR BY ANNUAL SUBSCRIPTION.  THIS SECTION IS NOT INTENDED TO
PREVENT THE LAWFUL DISTRIBUTION OF ANYTHING OTHER THAN COMMERCIAL AND
BUSINESS ADVERTISING MATTER." 

FN2  34 F.SUPP.  596. 

FN3  122 F.2D 511. 
..END :
















HELVERING V. SAFE DEPOSIT CO., 316 U.S. 56 


NO. 600.  ARGUED MARCH 9, 1942.  - DECIDED APRIL 13, 1942.  - 121 F.2D
307, REVERSED. 


1.  THE PROVISION OF SEC. 302(A) OF THE REVENUE ACT OF 1926, THAT IN
THE GROSS ESTATE OF A DECEDENT THERE SHALL BE INCLUDED THE VALUE OF ALL
PROPERTY "(A)  TO THE EXTENT OF THE INTEREST THEREIN OF THE DECEDENT AT
THE TIME OF HIS DEATH," DOES NOT EMBRACE PROPERTY AS TO WHICH HE HELD
MERELY A GENERAL TESTAMENTARY POWER OF APPOINTMENT WHICH HE DID NOT
EXERCISE.  P. 57. 

THIS VIEW IS COMPELLED BY THE LEGISLATIVE, JUDICIAL, AND
ADMINISTRATIVE HISTORY OF THE LEGISLATION. 

2.  WHERE PROPERTY IN LITIGATION WAS CLAIMED BY RELATIVES OF A
DECEDENT AS APPOINTEES UNDER HIS WILL, THE VALIDITY OF WHICH WAS
CONTESTED, AND, IN THE ALTERNATIVE, AS HIS HEIRS - ALSO A MATTER IN
DISPUTE - AND A SHARE OF THE PROPERTY WAS ALLOTTED TO THEM BY A
COMPROMISE AGREEMENT APPROVED BY THE COURT, HELD: 

(1)  THAT SO MUCH OF THE SHARE AS WAS PROPERLY ATTRIBUTABLE TO THEIR
CLAIM UNDER THE APPOINTMENT SHOULD BE INCLUDED IN THE DECEDENT'S ESTATE
UNDER SEC. 302(F) OF THE REVENUE ACT OF 1926, AS "PROPERTY PASSING
UNDER A GENERAL POWER OF APPOINTMENT EXERCISED BY THE DECEDENT  ...  BY
WILL."  P. 63. 

(2)  THE DETERMINATION OF HOW MUCH OF THE SHARE SHOULD BE IMPUTED TO
THE CLAIM BASED ON THE ATTEMPTED EXERCISE OF THE POWER OF APPOINTMENT
AND HOW MUCH TO THE ALTERNATIVE CLAIM - NECESSARILY AN APPROXIMATION -
WAS A MATTER FOR THE BOARD OF TAX APPEALS.  P. 66. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. SAFE DEPOSIT & TRUST
CO. OF BALTIMORE, TRUSTEE, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.  A
DECISION OF THE BOARD OF TAX APPEALS, 42 B.T.A. 145. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

BECAUSE OF THE IMPORTANCE IN THE ADMINISTRATION OF THE FEDERAL ESTATE
TAX OF THE QUESTIONS INVOLVED, WE GRANTED CERTIORARI TO REVIEW THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS, 121 F.2D 307, AFFIRMING A
DECISION OF THE BOARD OF TAX APPEALS, 42 B.T.A. 145. 

ZACHARY SMITH REYNOLDS, AGE 20, DIED ON JULY 6, 1932.  BY HIS
FATHER'S WILL IN 1918, ONE BY DEED EXECUTED BY HIS MOTHER IN 1923, AND
ONE CREATED BY HIS MOTHER'S WILL IN 1924.  FROM HIS FATHER'S TRUST, THE
DECEDENT WAS TO RECEIVE ONLY A PORTION OF THE INCOME PRIOR TO HIS
TWENTY-EIGHTH BIRTHDAY, AT WHICH TIME, IF LIVING, HE WAS TO BECOME THE
OUTRIGHT OWNER OF THE TRUST PROPERTY AND ALL ACCUMULATED INCOME.  HIS
MOTHER'S TRUSTS DIRECTED THAT HE ENJOY THE INCOME FOR LIFE, SUBJECT TO
CERTAIN RESTRICTIONS BEFORE HE REACHED THE AGE OF 28.  EACH OF THE
TRUSTS GAVE THE DECEDENT A GENERAL TESTAMENTARY POWER OF APPOINTMENT
OVER THE TRUST PROPERTY; IN DEFAULT OF EXERCISE OF THE POWER THE
PROPERTIES WERE TO GO TO HIS DESCENDANTS, OR IF HE HAD NONE, TO HIS
BROTHER AND SISTERS AND THEIR ISSUE PER STIRPES. 

THE COMMISSIONER INCLUDED ALL THE TRUST PROPERTY WITHIN THE
DECEDENT'S GROSS ESTATE FOR THE PURPOSE OF COMPUTING THE FEDERAL ESTATE
TAX.  THE BOARD OF TAX APPEALS AND THE CIRCUIT COURT OF APPEALS,
HOWEVER, HELD THAT NO PART OF THE TRUST PROPERTY SHOULD HAVE BEEN
INCLUDED. 

                                  I 

THE CASE PRESENTS TWO QUESTIONS, THE FIRST OF WHICH IS WHETHER THE
DECEDENT AT THE TIME OF HIS DEATH HAD BY VIRTUE OF HIS GENERAL POWERS
OF APPOINTMENT, EVEN IF NEVER EXERCISED, SUCH AN INTEREST IN THE TRUST
PROPERTY AS TO REQUIRE ITS INCLUSION IN HIS GROSS ESTATE UNDER SEC.
302(A) OF THE REVENUE ACT OF 1926, 44 STAT. 9, 70.  THIS SECTION
PROVIDES: 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR
PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED - 

(A)  TO THE EXTENT OF THE INTEREST THEREIN OF THE DECEDENT AT THE
TIME OF HIS DEATH;" 

THE GOVERNMENT ARGUES THAT AT THE TIME OF HIS DEATH THE DECEDENT HAD
AN "INTEREST" IN THE TRUST PROPERTIES THAT SHOULD HAVE BEEN INCLUDED IN
HIS GROSS ESTATE, BECAUSE HE, TO THE EXCLUSION OF ALL OTHER PERSONS,
COULD ENJOY THE INCOME FROM THEM; WOULD HAVE RECEIVED THE CORPUS OF ONE
TRUST UPON REACHING THE AGE OF 28; AND COULD ALONE DECIDE TO WHOM THE
BENEFITS OF ALL THE TRUSTS WOULD PASS AT HIS DEATH.  THESE RIGHTS, IT
IS SAID, WERE ATTRIBUTES OF OWNERSHIP SUBSTANTIALLY EQUIVALENT TO A FEE
SIMPLE TITLE, SUBJECT ONLY TO SPECIFIED RESTRICTIONS ON ALIENATION AND
THE USE OF INCOME.  THE RESPONDENTS DENY THAT THE RIGHTS OF THE
DECEDENT WITH RESPECT TO ANY OF THE THREE TRUSTS WERE SUBSTANTIALLY
EQUIVALENT TO OWNERSHIP IN FEE, EMPHASIZING THE PRACTICAL IMPORTANCE OF
THE RESTRICTIONS ON ALIENATION AND THE USE OF INCOME, AND ARGUING
FURTHER THAT THE DECEDENT NEVER ACTUALLY HAD THE CAPACITY TO MAKE AN
EFFECTIVE TESTAMENTARY DISPOSITION OF THE PROPERTY BECAUSE HE DIED
BEFORE REACHING HIS MAJORITY. 

WE FIND IT UNNECESSARY TO DECIDE BETWEEN THESE CONFLICTING
CONTENTIONS ON THE ECONOMIC EQUIVALENCE OF THE DECEDENT'S RIGHTS AND
COMPLETE OWNERSHIP.  FN1  FOR EVEN IF WE ASSUME WITH THE GOVERNMENT
THAT THE RESTRICTIONS UPON THE DECEDENT'S USE AND ENJOYMENT OF THE
TRUST PROPERTIES MAY BE DISMISSED AS NEGLIGIBLE AND THAT HE HAD THE
CAPACITY TO EXERCISE A TESTAMENTARY POWER OF APPOINTMENT, THE QUESTION
STILL REMAINS:  DID THE DECEDENT HAVE "AT THE TIME OF HIS DEATH" SUCH
AN "INTEREST" AS CONGRESS INTENDED TO BE INCLUDED IN A DECEDENT'S GROSS
ESTATE UNDER SEC. 302(A) OF THE REVENUE ACT OF 1926?  IT IS NOT
CONTENDED THAT THE BENEFITS DURING LIFE WHICH THE TRUSTS PROVIDED FOR
THE DECEDENT, TERMINATING AS THEY DID AT HIS DEATH, MADE THE TRUST
PROPERTIES PART OF HIS GROSS ESTATE UNDER THE STATUTE.  AND VIEWING
SEC. 302(A) IN ITS BACKGROUND OF LEGISLATIVE, JUDICIAL, AND
ADMINISTRATIVE HISTORY, WE CANNOT REACH THE CONCLUSION THAT THE WORDS
"INTEREST ...  OF THE DECEDENT AT THE TIME OF HIS DEATH" WERE INTENDED
BY CONGRESS TO INCLUDE PROPERTY SUBJECT TO A GENERAL TESTAMENTARY POWER
OF APPOINTMENT UNEXERCISED BY THE DECEDENT. 

THE FORERUNNER OF SEC. 302(A) OF THE REVENUE ACT OF 1926 WAS SEC.
202(A) OF THE REVENUE ACT OF 1916, 39 STAT. 777.  IN UNITED STATES V.
FIELD, 255 U.S. 257, THIS COURT HELD THAT PROPERTY PASSING UNDER A
GENERAL POWER OF APPOINTMENT EXERCISED BY A DECEDENT WAS NOT SUCH AN
"INTEREST" OF THE DECEDENT AS THE 1916 ACT BROUGHT WITHIN THE
DECEDENT'S GROSS ESTATE.  WHILE THE HOLDING WAS LIMITED TO EXERCISED
POWERS OF APPOINTMENT, THE APPROACH OF THE COURT, THE AUTHORITIES
CITED, AND CERTAIN EXPLICIT STATEMENTS  FN2 IN THE OPINION LEFT LITTLE
DOUBT THAT THE COURT REGARDED PROPERTY SUBJECT TO UNEXERCISED GENERAL
POWERS OF APPOINTMENT AS SIMILARLY BEYOND THE SCOPE OF THE STATUTORY
PHRASE "INTEREST OF THE DECEDENT."  FN3 

AFTER THE FIELD CASE, THE PROVISION IT PASSED UPON WAS REENACTED
WITHOUT CHANGE IN THE REVENUE ACT OF 1921(SEC.  402(A), 42 STAT. 278)
AND IN THE REVENUE ACT OF 1924(SEC.  302(A), 43 STAT. 304).  IF THE
IMPLICATIONS OF THE FIELD OPINION WITH RESPECT TO UNEXERCISED POWERS
HAD BEEN CONSIDERED CONTRARY TO THE INTENDMENT OF THE WORDS "INTEREST
OF THE DECEDENT," IT IS REASONABLE TO SUPPOSE THAT CONGRESS WOULD HAVE
ADDED SOME CLARIFYING AMENDMENT. 

IF THE COUNTERPARTS IN THE EARLIER ACTS OF SEC. 302(A) OF THE REVENUE
ACT OF 1926 DID NOT REQUIRE THE INCLUSION OF PROPERTY SUBJECT TO AN
UNEXERCISED GENERAL TESTAMENTARY POWER OF APPOINTMENT WITHIN THE
DECEDENT'S GROSS ESTATE, THERE IS NO BASIS FOR CONCLUDING THAT THE
AMENDMENT OF 1926 CHANGED THE ACT IN THIS RESPECT.  PRIOR TO 1926 AN
"INTEREST OF THE DECEDENT" WAS TO BE INCLUDED IN HIS GROSS ESTATE ONLY
IF SUBJECT "AFTER HIS DEATH  ...  TO THE PAYMENT OF THE CHARGES AGAINST
HIS ESTATE AND THE EXPENSES OF ITS ADMINISTRATION AND ...  SUBJECT TO
DISTRIBUTION AS PART OF HIS ESTATE."  IN THE 1926 ACT THIS
QUALIFICATION WAS ABANDONED.  IN THE REPORT ACCOMPANYING THE BILL WHICH
EMBODIED THIS CHANGE, THE HOUSE COMMITTEE ON WAYS AND MEANS STATED ONLY
THAT "IN THE INTEREST OF CERTAINTY IT IS RECOMMENDED THAT THE LIMITING
LANGUAGE  ... SHALL BE ELIMINATED IN THE PROPOSED BILL, SO THAT THE
GROSS ESTATE SHALL INCLUDE THE ENTIRE INTEREST OF THE DECEDENT AT THE
TIME OF HIS DEATH IN ALL THE PROPERTY."  FN4  NOTHING IN THE REPORT
SUGGESTED THAT THE CHANGE WAS INTENDED TO HAVE ANY RELEVANCE TO POWERS
OF APPOINTMENT, AND NO SUCH INTENTION CAN REASONABLY BE INFERRED FROM
THE AMENDED SECTION ITSELF.  IT IS NOTEWORTHY THAT THE REGULATIONS OF
THE BUREAU OF INTERNAL REVENUE ISSUED AFTER PASSAGE OF THE 1926 ACT
CONTAIN NO INDICATION THAT THE TREASURY DEPARTMENT REGARDED THE
AMENDMENT AS AFFECTING UNEXERCISED POWERS OF APPOINTMENT.  ON THE OTHER
HAND, THE ARTICLE PERTAINING TO POWERS OF APPOINTMENT WAS
REINCORPORATED IN THE 1926 REGULATIONS WITH THE SAME CONTENT, SO FAR AS
HERE RELEVANT, AS THE CORRESPONDING ARTICLE IN THE LAST REGULATIONS
ISSUED PRIOR TO THE 1926 ACT.  FN5 

WHEN IT WAS HELD IN THE FIELD CASE THAT PROPERTY SUBJECT TO AN
EXERCISED GENERAL TESTAMENTARY POWER OF APPOINTMENT WAS NOT TO BE
INCLUDED IN THE DECEDENT'S GROSS ESTATE UNDER THE REVENUE ACT OF 1916,
THIS COURT REFERRED TO AN AMENDMENT PASSED IN 1919 WHICH SPECIFICALLY
DECLARED PROPERTY PASSING UNDER AN EXERCISED GENERAL TESTAMENTARY POWER
TO BE PART OF THE DECEDENT'S GROSS ESTATE.  THE PASSAGE OF THIS
AMENDMENT, SAID THE COURT, "INDICATES THAT CONGRESS AT LEAST WAS
DOUBTFUL WHETHER THE PREVIOUS ACT INCLUDED PROPERTY PASSING BY
APPOINTMENT."  FN6  IN THE FACE OF SUCH DOUBTS, WHICH CANNOT REASONABLY
BE SUPPOSED TO HAVE BEEN LESS THAN DOUBTS WITH RESPECT TO UNEXERCISED
POWERS, CONGRESS NEVERTHELESS SPECIFIED ONLY THAT PROPERTY SUBJECT TO
EXERCISED POWERS SHOULD BE INCLUDED.  FROM THIS DELIBERATE SINGLING OUT
OF EXERCISED POWERS ALONE, WITHOUT THE CORROBORATION OF THE OTHER
MATTERS WE HAVE DISCUSSED, A CONGRESSIONAL INTENT TO TREAT UNEXERCISED
POWERS OTHERWISE CAN BE DEDUCED.  AT THE LEAST, SEC. 302(F) OF THE 1926
ACT,  FN7  THE COUNTERPART OF THE 1919 AMENDMENT REFERRED TO IN THE
FIELD CASE, REPRESENTS A COURSE OF ACTION FOLLOWED BY CONGRESS, SINCE
1919, ENTIRELY CONSISTENT WITH A PURPOSE TO EXCLUDE FROM DECEDENTS'
GROSS ESTATES PROPERTY SUBJECT TO UNEXERCISED GENERAL TESTAMENTARY
POWERS OF APPOINTMENT. 

IN NO JUDICIAL OPINION BROUGHT TO OUR ATTENTION HAS IT BEEN HELD THAT
THE GROSS ESTATE OF A DECEDENT INCLUDES, FOR PURPOSES OF THE FEDERAL
ESTATE TAX, PROPERTY SUBJECT TO AN UNEXERCISED GENERAL POWER.  ON THE
CONTRARY, AS THE COURT BELOW POINTS OUT, "THE COURTS HAVE BEEN AT PAINS
TO CONSIDER WHETHER PROPERTY PASSED UNDER A GENERAL POWER OR NOT SO AS
TO BE TAXABLE UNDER SECTION 302(F), A CONSIDERATION WHICH WOULD HAVE
BEEN ABSOLUTELY UNNECESSARY IF THE ESTATE WERE TAXABLE UNDER 302(A)
BECAUSE OF THE MERE EXISTENCE OF A GENERAL POWER WHETHER EXERCISED OR
NOT."  FN8  121 F.2D 307, 312.  IN ADDITION, THE UNIFORM ADMINISTRATIVE
PRACTICE UNTIL THIS CASE AROSE APPEARS TO HAVE PLACED AN INTERPRETATION
UPON THE FEDERAL ESTATE TAX CONTRARY TO THAT THE GOVERNMENT NOW URGES. 
NO REGULATIONS ISSUED UNDER THE SEVERAL REVENUE ACTS, INCLUDING THOSE
IN EFFECT AT THE TIME THIS SUIT WAS INITIATED, PRESCRIBE THAT PROPERTY
SUBJECT TO AN UNEXERCISED GENERAL TESTAMENTARY POWER OF APPOINTMENT
SHOULD BE INCLUDED IN A DECEDENT'S GROSS ESTATE.  BECAUSE OF THE
COMBINED EFFECT OF ALL OF THESE CIRCUMSTANCES, WE BELIEVE THAT A
DEPARTURE FROM THE LONG-STANDING, GENERALLY ACCEPTED  FN9  CONSTRUCTION
OF SEC. 302(A), NOW CONTESTED FOR THE FIRST TIME BY THE GOVERNMENT,
WOULD OVERRIDE THE BEST INDICATIONS WE HAVE OF CONGRESSIONAL INTENT. 

                                  II 

THE SECOND QUESTION IS THE TREATMENT TO BE GIVEN, UNDER SEC. 302(F)
OF THE REVENUE ACT OF 1926, TO A SHARE OF THE TRUST PROPERTY PASSING TO
THE DECEDENT'S BROTHER AND SISTERS AS A RESULT OF A COMPROMISE
SETTLEMENT WITH OTHER CLAIMANTS.  SHOULD THAT SHARE BE INCLUDED IN
WHOLE OR IN PART WITHIN THE DECEDENT'S GROSS ESTATE AS "PROPERTY
PASSING UNDER A GENERAL POWER OF APPOINTMENT EXERCISED BY THE DECEDENT
...  BY WILL"? 

THE CLAIM OF THE BROTHER AND SISTERS WAS BASED UPON:  (1) A PURPORTED
EXERCISE OF THE POWER OF APPOINTMENT IN THEIR FAVOR BY THE DECEDENT IN
A WILL HE EXECUTED IN NEW YORK, AND IN THE ALTERNATIVE, (2) THEIR RIGHT
TO TAKE IN DEFAULT OF APPOINTMENT UNDER THE TERMS OF THE TRUSTS.  EACH
OF THE TWO CHILDREN OF THE DECEDENT (1) DENIED THE VALIDITY OF THE NEW
YORK WILL AND (2) CHALLENGING THE RIGHT OF THE BROTHER AND SISTERS TO
TAKE IN DEFAULT, INDEPENDENTLY ASSERTED HIS OWN.  THESE ISSUES,
COMPLICATED BY MANY OTHER FACTORS WHICH IT IS UNNECESSARY HERE TO
DISCUSS, WERE NEVER FINALLY RESOLVED BY JUDICIAL DECISION, ALTHOUGH
THERE HAD BEEN MUCH LITIGATION INVOLVING THEM IN THE NORTH CAROLINA
COURTS.  EVENTUALLY, THE SEVERAL CLAIMANTS AGREED TO A COMPROMISE UNDER
WHICH 37 1/2% OF THE TRUST PROPERTY WENT TO THE BROTHER AND SISTERS. 
THE COMPROMISE WAS CONFIRMED BY A JUDGMENT OF THE NORTH CAROLINA
SUPERIOR COURT AND THIS JUDGMENT WAS AFFIRMED BY THE NORTH CAROLINA
SUPREME COURT.  208 N.C. 578, 182 S.E. 341. 

THE GOVERNMENT CONTENDS THAT A PORTION OF THE SHARE RECEIVED BY THE
BROTHER AND SISTERS REFLECTS RECOGNITION BY THE OTHER CLAIMANTS AS WELL
AS BY THE NORTH CAROLINA COURTS OF THE ASSERTION THAT THE POWER OF
APPOINTMENT WAS VALIDLY EXERCISED; AND THAT UNDER THE DOCTRINE APPROVED
BY THIS COURT IN LYETH V. HOEY, 305 U.S. 188, THAT PORTION MUST BE
TREATED AS THOUGH IT ACTUALLY PASSED PURSUANT TO AN EFFECTIVE EXERCISE
OF THE POWER. 

THE LYETH CASE, LIKE THE ONE NOW BEFORE US, CAME TO THIS COURT AFTER
A COMPROMISE SETTLEMENT.  AN HEIR OF THE DECEDENT HAD CONTESTED THE
VALIDITY OF THE DECEDENT'S WILL IN WHICH NO PROVISION HAD BEEN MADE FOR
HIM.  THE HEIR AND THE DEVISEES AND LEGATEES UNDER THE WILL ENTERED
INTO A COMPROMISE PROVIDING THAT THE WILL BE PROBATED AND THAT A
SPECIFIC SUM BE PAID TO THE HEIR.  WE HELD THAT THE MONEY THE HEIR
RECEIVED PURSUANT TO THE COMPROMISE SHOULD BE TREATED, WITH RESPECT TO
HIS TAX LIABILITY UNDER THE FEDERAL INCOME TAX STATUTE,  FN10  AS IF
ACQUIRED "BY INHERITANCE," FOR THE REASON THAT IT WAS POSSIBLE FOR HIM
TO RECEIVE IT ONLY "BECAUSE OF HIS STANDING AS AN HEIR AND OF HIS CLAIM
IN THAT CAPACITY."  FN11 

THE CLAIM OF THE DECEDENT'S BROTHER AND SISTERS HERE, SO FAR AS BASED
ON THE VALIDITY OF THE PURPORTED APPOINTMENT, HAD ITS ROOTS, LIKE THE
CLAIMED INVALIDITY OF THE WILL IN THE LYETH CASE, IN AN ISSUE NEVER
DECIDED IN LITIGATION.  IF IT HAD BEEN LITIGATED TO FINAL JUDGMENT BY A
COMPETENT TRIBUNAL AND THE BROTHER AND SISTERS HAD SUCCEEDED IN
ESTABLISHING THE VALIDITY OF THE EXERCISE OF THE POWER, THE INCLUSION
IN THE DECEDENT'S GROSS ESTATE OF WHAT THEY WOULD HAVE RECEIVED AS
APPOINTEES, PURSUANT TO SEC. 302(F), COULD NOT SERIOUSLY BE
QUESTIONED.  IN THE LYETH CASE WE SAID THAT "THE DISTINCTION SOUGHT TO
BE MADE BETWEEN ACQUISITION THROUGH SUCH A JUDGMENT AND ACQUISITION BY
A COMPROMISE AGREEMENT IN LIEU OF SUCH A JUDGMENT IS TOO FORMAL TO BE
SOUND."  FN12  THERE IS NO LESS REASON FOR THE SAME CONCLUSION HERE. 
THE RESPONDENTS CONTEND THAT THE PRINCIPLE OF THE LYETH CASE, ANNOUNCED
BY THE COURT WITH RESPECT TO INCOME TAX LIABILITY, SHOULD NOT BE
CONTROLLING WHERE, AS HERE, THE QUESTION IS ONE OF ESTATE TAX
LIABILITY.  IT IS URGED THAT TAXES SHOULD NOT BE INFLUENCED BY WHAT
OCCURS AFTER THE TAXABLE EVENT; THAT IT IS REASONABLE TO CONSIDER A
COMPROMISE PRECEDING THE RECEIPT OF INCOME IN CONNECTION WITH AN INCOME
TAX; BUT THAT A COMPROMISE OCCURRING AFTER THE DECEDENT'S DEATH, WHICH
IS THE "TAXABLE EVENT" UNDER AN ESTATE TAX, SHOULD NOT BE CONSIDERED. 
WHATEVER MAY BE THE GENERAL RULE IN THIS RESPECT,  FN13  THIS COURT HAS
CLEARLY RECOGNIZED, IN HELVERING V. GRINNELL, 294 U.S. 153, THAT EVENTS
SUBSEQUENT TO THE DECEDENT'S DEATH, EVENTS CONTROLLED BY HIS
BENEFICIARIES, CAN DETERMINE THE INCLUSION OR NOT OF CERTAIN ASSETS
WITHIN THE DECEDENT'S GROSS ESTATE UNDER SEC. 302(F).  IN THAT CASE,
THE DECEDENT HAD EXERCISED A GENERAL TESTAMENTARY POWER OF APPOINTMENT,
AN ACT WHICH UNDER SEC. 302(F) BRINGS THE PROPERTY SUBJECT TO THE POWER
WITHIN THE GROSS ESTATE.  THE SUBSEQUENT RENOUNCEMENT BY THE APPOINTEES
OF THE RIGHT TO RECEIVE BY APPOINTMENT AND THEIR ELECTION TO TAKE AS
REMAINDERMEN IN DEFAULT OF APPOINTMENT WERE HELD BY THIS COURT TO PLACE
THE PROPERTY SUBJECT TO THE POWER OUTSIDE THE SCOPE OF SEC. 302(F). 

THE RESPONDENTS FURTHER CONTEND THAT, JUDICIAL DETERMINATIONS HAVING
BEEN MADE IN THE STATE COURTS THAT THE ATTEMPTED APPOINTMENT WAS
INVALID, THE SHARE OF THE BROTHER AND SISTERS IN THE COMPROMISE
REFLECTS ONLY THEIR ALTERNATIVE CLAIM TO THE TRUST PROPERTY.  WHILE
THERE ARE EXPLICIT STATEMENTS IN THE OPINION OF THE NORTH CAROLINA
SUPERIOR COURT THAT THE ATTEMPTED APPOINTMENT WAS INVALID, THESE
STATEMENTS MUST BE REGARDED AS SUPERSEDED BY THE OPINION WHICH THE
NORTH CAROLINA SUPREME COURT, WHOSE DETERMINATION CONSTITUTED THE FINAL
APPROVAL OF THE COMPROMISE, RENDERED ON APPEAL.  FOR, IN THE COURSE OF
THAT OPINION THE SUPREME COURT GAVE CLEAR RECOGNITION TO THE ALLEGED
VALIDITY OF THE DECEDENT'S ATTEMPTED APPOINTMENT AS A BASIS OF THE
CLAIM THE BROTHER AND SISTERS ASSERTED.  THE COURT STATED (208 N.C.
578, 618): 

"SERIOUS AND GRAVE QUESTIONS OF LAW AND FACTS WERE RAISED.  THE
JUDGMENT SETS THEM OUT AND WE REFER TO SAME, ALL TROUBLESOME, BUT WE
WILL CONSIDER ONE FOR EXAMPLE:  THE VALIDITY AND EFFECT OF THE ALLEGED
WILL EXECUTED IN NEW YORK BY ZACHARY SMITH REYNOLDS, AS A BASIS OF THE
OFFER OF THE BROTHER AND SISTERS OF ZACHARY SMITH REYNOLDS." 

INCONSISTENT STATEMENTS MADE IN THE COURSE OF A DECREE ISSUED BY THE
CIRCUIT COURT OF BALTIMORE, MARYLAND, CANNOT BE REGARDED AS OVERCOMING
THE FORCE OF THE FOREGOING, SINCE THE DECREE PURPORTED ONLY TO
AUTHORIZE AND DIRECT THE MARYLAND TRUSTEE TO DIVIDE THE TRUST PROPERTY
IN ACCORDANCE WITH THE COMPROMISE AS APPROVED IN NORTH CAROLINA. 

HOW MUCH, IF ANY, OF THE 37 1/2% GOING TO THE DECEDENT'S BROTHER AND
SISTERS SHOULD BE IMPUTED TO THE CLAIM BASED ON THE ATTEMPTED EXERCISE
OF THE POWER OF APPOINTMENT AND HOW MUCH TO THEIR ALTERNATIVE CLAIM WE
DO NOT DECIDE.  IN REMANDING THIS CASE TO THE BOARD OF TAX APPEALS FOR
A DETERMINATION OF THIS ISSUE, WE RECOGNIZE THAT A DECISION MUST
NECESSARILY BE AN APPROXIMATION DERIVED FROM THE EVALUATION OF ELEMENTS
NOT EASILY MEASURED.  IN MATTERS SO PRACTICAL AS THE ADMINISTRATION OF
TAX LAWS AND IN THE DECISION OF PROBLEMS CONNECTED WITH THEM, A HIGH
DEGREE OF PRECISION IS OFTEN IMPOSSIBLE TO ACHIEVE.  BUT IT IS FAR
BETTER TO MAKE SUCH A ROUGH ESTIMATE AS THE DATA WILL PERMIT THAN
COMPLETELY TO IGNORE THE REALITIES OF THE COMPROMISE BECAUSE OF THE
DIFFICULTIES OF EVALUATION.  FN14 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED WITH
DIRECTIONS TO REMAND TO THE BOARD OF TAX APPEALS FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  IN DECLINING TO PASS UPON THIS ISSUE, WE DO NOT REJECT THE
PRINCIPLE WE HAVE OFTEN RECOGNIZED THAT THE REALITIES OF THE TAXPAYER'S
ECONOMIC INTEREST, RATHER THAN THE NICETIES OF THE CONVEYANCER'S ART,
SHOULD DETERMINE THE POWER TO TAX.  SEE CURRY V. MCCANLESS, 307 U.S.
357, 371, AND CASES THERE CITED.  NOR DO WE DENY THE RELEVANCE OF THIS
PRINCIPLE AS A GUIDE TO STATUTORY INTERPRETATION WHERE, UNLIKE HERE,
THE LANGUAGE OF A STATUTE AND ITS STATUTORY HISTORY DO NOT AFFORD MORE
SPECIFIC INDICATIONS OF LEGISLATIVE INTENT.  HELVERING V. CLIFFORD, 309
U.S. 331. 

FN2  E.G.:  "BUT THE EXISTENCE OF THE POWER DOES NOT OF ITSELF VEST
ANY ESTATE IN THE DONEE."  (P. 263.) 

"IF THERE BE NO APPOINTMENT, IT (THE PROPERTY SUBJECT TO THE POWER)
GOES ACCORDING TO THE DISPOSITION OF THE DONOR."  (P. 264.) 

"...  THE INTEREST IN QUESTION (WAS) NOT  ...  PROPERTY OF MRS. FIELD
AT  ...  HER DEATH."  (P. 264.) 

FN3  IN BURNET V. GUGGENHEIM, 288 U.S. 280, 288, THIS COURT STATED: 

"UNITED STATES V. FIELD  ...  HOLDS THAT UNDER THE REVENUE ACT OF
1916  ...  THE SUBJECT OF A POWER CREATED BY ANOTHER IS NOT A PART OF
THE ESTATE OF THE DECEDENT TO WHOM THE POWER WAS COMMITTED."  IT IS TO
BE NOTED THAT NO DISTINCTION WAS RECOGNIZED BETWEEN EXERCISED AND
UNEXERCISED POWERS UNDER THE RULE OF THE FIELD CASE. 

FN4  HOUSE REPORT NO. 1, 69TH CONG., 1ST SESS., 15. 

FN5  ARTICLE 24 OF TREASURY REGULATIONS 70(1926 ED.)  UNDER THE
REVENUE ACT OF 1926; ARTICLE 24 OF TREASURY REGULATIONS 68(1924 ED.) 
UNDER THE REVENUE ACT OF 1924. 

FN6  UNITED STATES V. FIELD, SUPRA, 265. 

FN7  "THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE
DETERMINED BY INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL
PROPERTY, REAL OR PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED
 

     .         .         .         .         . 

"(F)  TO THE EXTENT OF ANY PROPERTY PASSING UNDER A GENERAL POWER OF
APPOINTMENT EXERCISED BY THE DECEDENT (1) BY WILL, OR (2) BY DEED
EXECUTED IN CONTEMPLATION OF, OR INTENDED TO TAKE EFFECT IN POSSESSION
OR ENJOYMENT AT OR AFTER, HIS DEATH, EXCEPT IN CASE OF A BONA FIDE SALE
FOR AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH;" 44
STAT. 9, 70-71. 

FN8  SEE, E.G., HELVERING V GRINNELL, 294 U.S. 153; ROTHENSIES V.
FIDELITY-PHILADELPHIA TRUST CO., 112 F.2D 758. 

FN9  SEE I PAUL, FEDERAL ESTATE AND GIFT TAXATION, P. 425:  "AS LONG
AS THERE IS NO ACTUAL OR CONSTRUCTIVE EXERCISE OF THE POWER, THERE CAN
BE NO TAX UNDER THE PRESENT STATUTE." 

FN10  SECTION 22(B)(3) OF THE REVENUE ACT OF 1932, C. 209, 47 STAT.
178, UNDER WHICH THE LYETH CASE AROSE, EXEMPTED FROM THE INCOME TAX THE
"VALUE OF PROPERTY ACQUIRED  ...  BY INHERITANCE ..." 

FN11  LYETH V. HOEY, SUPRA, 196. 

FN12  ID. 

FN13  SEE ITHACA TRUST CO. V. UNITED STATES, 279 U.S. 151, 155. 

FN14  CF. UNITED STATES V. LUDEY, 274 U.S. 295, 302. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER AND
MR. JUSTICE BYRNES CONCUR IN THE OPINION OF THE COURT UPON THE FIRST
QUESTION DECIDED.  THEY DISSENT FROM THE DECISION OF THE SECOND
QUESTION.  THEY ARE OF OPINION THAT THAT QUESTION SHOULD BE ANSWERED IN
FAVOR OF THE RESPONDENTS ON THE AUTHORITY OF HELVERING V. GRINNELL, 294
U.S. 153, AND THAT LYETH V. HOEY, 305 U.S. 188, FURNISHES NO SUPPORT
FOR A DIFFERENT ANSWER. 

THE ESTATE IN QUESTION IS NOT THAT OF THE DECEDENT.  THE PROPERTY IS
A PORTION OF THE ESTATES OF HIS MOTHER AND FATHER.  IT IS CONCEDED THAT
NO PART OF EITHER ESTATE PASSED BY VIRTUE OF THE EXECUTION BY THE
DECEDENT OF THE POWERS OF APPOINTMENT WITH WHICH HE WAS CLOTHED.  THE
PROPERTY PASSED UNDER THE DEED AND WILLS OF HIS PARENTS, AND THAT
PASSAGE WAS THE TAXABLE EVENT.  IF HE HAD VOLUNTARILY REFRAINED FROM
EXERCISING THE POWER, HIS ESTATE WOULD NOT HAVE BEEN LIABLE TO PAY AN
ESTATE TAX, FOR THE PROPERTY WOULD THEN HAVE PASSED FROM THE ESTATES OF
HIS MOTHER AND FATHER TO THE DISTRIBUTEES.  BUT IT HAS BEEN DECIDED BY
COMPETENT TRIBUNALS THAT HE DID NOT EXERCISE THE POWER, ALTHOUGH HE
ATTEMPTED SO TO DO; AND, IN ANY CASE, THERE IS NO DETERMINATION HERE,
OR ELSEWHERE, THAT THE POWER WAS EVER EXERCISED.  THIS BEING SO, THE
QUESTION IS WHETHER ANYTHING PASSED FROM HIM TO HIS RELATIVES UNDER THE
INTESTATE LAW AT HIS DEATH.  IT IS PLAIN THAT NOTHING DID SO PASS. 

IN HELVERING V. GRINNELL, SUPRA, THE DECEDENT EXERCISED THE POWER,
BUT THE APPOINTEES, AS WAS THEIR RIGHT UNDER STATE LAW, ELECTED NOT TO
TAKE UNDER THE APPOINTMENT BUT TO TAKE AS REMAINDERMEN DIRECTLY FROM
THE ESTATE OF THE CREATOR OF THE POWER, AND IT WAS HELD THAT SEC. 302
COULD NOT BE INVOKED TO IMPOSE A TAX UPON THE ESTATE OF THE DECEDENT. 
IT WAS THERE SAID: 

"THE CRUCIAL WORDS ARE 'PROPERTY PASSING UNDER A GENERAL POWER OF
APPOINTMENT EXERCISED BY THE DECEDENT BY WILL.'  ANALYSIS OF THIS
CLAUSE DISCLOSES THREE DISTINCT REQUISITES - (1) THE EXISTENCE OF A
GENERAL POWER OF APPOINTMENT; (2) AN EXERCISE OF THAT POWER BY THE
DECEDENT BY WILL; AND (3) THE PASSING OF THE PROPERTY IN VIRTUE OF SUCH
EXERCISE.  CLEARLY, THE GENERAL POWER EXISTED AND WAS EXERCISED; AND
THIS IS NOT DISPUTED.  BUT IT IS EQUALLY CLEAR THAT NO PROPERTY PASSED
UNDER THE POWER OR AS A RESULT OF ITS EXERCISE SINCE THAT RESULT WAS
DEFINITELY REJECTED BY THE BENEFICIARIES.  IF THEY HAD WHOLLY REFUSED
TO TAKE THE PROPERTY, IT COULD NOT WELL BE SAID THAT THE PROPERTY HAD
PASSED UNDER THE POWER, FOR IN THAT EVENT IT WOULD NOT HAVE PASSED AT
ALL.  CAN IT PROPERLY BE SAID THAT BECAUSE THE BENEFICIARIES ELECTED TO
TAKE THE PROPERTY UNDER A DISTINCT AND SEPARATE TITLE, THE PROPERTY
NEVERTHELESS PASSED UNDER THE POWER?  PLAINLY ENOUGH, WE THINK, THE
ANSWER MUST BE IN THE NEGATIVE." 

LYETH V. HOEY, SUPRA, DECIDES NOTHING TO THE CONTRARY.  IN THAT CASE,
THE PROPERTY IN QUESTION WAS THE PROPERTY OF THE DECEDENT HIMSELF.  HE
DISPOSED OF IT BY WILL.  THE WILL WAS CONTESTED.  THE CONTEST WAS
COMPROMISED AND, AS A RESULT, THOSE WHO WERE HIS HEIRS AT LAW RECEIVED
AT LEAST A PORTION OF THAT WHICH THEY WOULD HAVE RECEIVED AS HIS HEIRS
IN THE ABSENCE OF A WILL.  THUS, AS A RESULT OF THE COMPROMISE,
PROPERTY DID PASS FROM THE DECEDENT TO HIS HEIRS AT LAW, AND IT WAS
HELD THAT, AS THEY WERE HIS HEIRS, THEY TOOK BY INHERITANCE IN
CONTEMPLATION OF THE REVENUE ACT.  HERE, NOTHING PASSED BY VIRTUE OF
THE EXERCISE OF THE POWER AND NO PORTION OF THE DECEDENT'S ESTATE
PASSED UNDER THE LAW OF DESCENT AND DISTRIBUTION, OR AS PROPERTY WOULD
HAVE PASSED UNDER THAT LAW FROM THE DECEDENT TO THE BENEFICIARIES OF
THE COMPROMISE. 

WE ARE AT A LOSS TO UNDERSTAND HOW THE BOARD OF TAX APPEALS CAN BE
PERMITTED TO FIND THAT ANY TAXABLE TRANSFER OCCURRED WITHIN THE MEANING
OF SEC. 302 OF THE REVENUE ACT OF 1926.  MOREOVER, THE COMPROMISE WAS
MOTIVATED BY CONSIDERATIONS OTHER THAN THE INVALIDITY OF THE POWER, FOR
THE CLAIMS OF THE DECEDENT'S CHILDREN HAD A LARGE INFLUENCE IN BRINGING
IT ABOUT.  WE CANNOT PERCEIVE HOW THE BOARD CAN CALCULATE THE RELATIVE
WEIGHT OF THESE CONFLICTING CLAIMS AND THUS ASSESS AS TAXABLE AN
APPORTIONED PART OF THE TOTAL AMOUNT THE DECEDENT'S COLLATERAL
RELATIVES RECEIVED, AND THUS DETERMINE WHAT PART OF THE PROPERTY PASSED
UNDER THE POWER AND WHAT PART DID NOT. 
..END :









MAGRUDER V. REALTY CORP., 316 U.S. 69 


NO. 601.  ARGUED MARCH 9, 10, 1942.  - DECIDED APRIL 13, 1942.  - 120
F.2D 441, REVERSED. 


1.  A CORPORATION WHICH WAS ORGANIZED FOR THE PURPOSE OF LIQUIDATING
THE PROPERTIES OF ANOTHER CORPORATION, AND WHICH, SINCE ITS
ORGANIZATION, HAS BEEN CARRYING ON NEGOTIATIONS FOR THE SALE OF THE
PROPERTIES, SELLING THEM FROM TIME TO TIME AS SATISFACTORY OFFERS ARE
RECEIVED, AND RENTING UNSOLD PROPERTIES UNDER SHORT TERM LEASES IN AN
ATTEMPT TO EARN THE CARRYING CHARGES PENDING ULTIMATE SALE, WAS
"CARRYING ON OR DOING BUSINESS" WITHIN THE MEANING OF PROVISIONS OF THE
REVENUE ACT OF 1935, AND SUBSEQUENT REVENUE ACTS, IMPOSING A TAX ON THE
CAPITAL STOCK OF EVERY DOMESTIC CORPORATION "CARRYING ON OR DOING
BUSINESS" DURING THE TAX YEAR.  P. 71. 

2.  THE PROVISION OF THE TREASURY REGULATIONS THAT "DOING BUSINESS"
WITHIN THE MEANING OF THE CAPITAL STOCK TAX PROVISIONS OF THE REVENUE
ACT OF 1935, AND SUBSEQUENT REVENUE ACTS, INCLUDES ACTIVITIES OF A
CORPORATION ENGAGED IN "LIQUIDATION  ...  OF PROPERTIES TAKEN OVER FROM
ANOTHER CORPORATION" IS VALID AND APPLICABLE TO THE CORPORATION HERE
INVOLVED.  P. 72. 

MAGRUDER, COLLECTOR OF INTERNAL REVENUE, V. WASHINGTON, BALTIMORE &
ANNAPOLIS REALTY CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 314 U.S. 601, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE TAXPAYER, 35 F.SUPP.  340, IN A SUIT FOR REFUND OF CAPITAL STOCK
TAXES. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR REFUND OF CAPITAL STOCK TAXES PAID BY RESPONDENT
FOR THE YEARS ENDING JUNE 30, 1936, THROUGH 1939.  WE ARE ASKED TO
DETERMINE WHETHER RESPONDENT WAS "CARRYING ON OR DOING BUSINESS" WITHIN
THE MEANING OF SEC. 105(A) OF THE REVENUE ACT OF 1935, C. 829, 49 STAT.
1017, AND SUBSEQUENT ACTS, WHICH PROVIDE: 

"FOR EACH YEAR ENDING JUNE 30, BEGINNING WITH THE YEAR ENDING JUNE
30, 1936, THERE IS HEREBY IMPOSED UPON EVERY DOMESTIC CORPORATION WITH
RESPECT TO CARRYING ON OR DOING BUSINESS FOR ANY PART OF SUCH YEAR AN
EXCISE TAX OF $1.40 FOR EACH $1,000 OF THE ADJUSTED DECLARED VALUE OF
ITS CAPITAL STOCK."  FN1 

RESPONDENT WAS ORGANIZED IN 1935 WITH BROAD CORPORATE POWERS UNDER THE
LAWS OF MARYLAND BY THE PROTECTIVE COMMITTEE FOR THE BONDHOLDERS OF THE
DEFUNCT WASHINGTON, BALTIMORE & ANNAPOLIS RAILWAY COMPANY.  IT WAS
FORMED FOR THE PURPOSE OF LIQUIDATING CERTAIN PROPERTIES, FORMERLY
BELONGING TO THE RAILWAY COMPANY, WHICH THE COMMITTEE HAD ACQUIRED
THROUGH FORECLOSURE.  AMONG THE PROPERTIES RECEIVED BY RESPONDENT FROM
THE COMMITTEE WERE CERTAIN RIGHTS OF WAY, EASEMENTS, TERMINAL
PROPERTIES, AND OTHER REAL ESTATE LOCATED IN BALTIMORE, ANNAPOLIS, AND
WASHINGTON, AS WELL AS AT THE OTHER POINTS ALONG THE LINE OF THE
RAILROAD, AND THE STOCK OF A REALTY HOLDING COMPANY WHICH OWNED ANOTHER
REALTY COMPANY, BOTH OF WHICH HAD BEEN SUBSIDIARIES OF THE RAILWAY
COMPANY FOR THE PURPOSE OF HOLDING LEGAL TITLE TO REAL ESTATE.  THE
VALUE OF THE PROPERTIES RECEIVED IN 1935, AS SHOWN BY RESPONDENT'S
BALANCE SHEET, WAS $419,250. 

SINCE ITS INCORPORATION RESPONDENT HAS BEEN CARRYING ON NEGOTIATIONS
FOR THE SALE OF THE PROPERTIES ACQUIRED, SELLING THEM FROM TIME TO TIME
AS SATISFACTORY OFFERS WERE RECEIVED, AND RENTING UNSOLD PROPERTIES
UNDER SHORT TERM LEASES IN AN ATTEMPT TO EARN THE CARRYING CHARGES
PENDING ULTIMATE SALE.  RECEIPTS FROM SALES DURING THE FOUR YEAR PERIOD
HERE IN QUESTION WERE APPROXIMATELY $675,000, AND RENTALS AMOUNTED TO
$136,000.  AT THE END OF THIS PERIOD RESPONDENT'S BOOK STILL SHOWED
PROPERTIES WORTH $122,000.  ALL NET INCOME, EXCEPT SMALL RESERVES FOR
CONTINGENCIES, WAS DISTRIBUTED AS RECEIVED TO THE STOCKHOLDERS, FORMER
BONDHOLDERS OF THE RAILWAY COMPANY. 

RESPONDENT PAID CAPITAL STOCK TAXES FOR THE FOUR YEARS IN QUESTION,
AND THEN BROUGHT THIS SUIT FOR REFUND OF THE PAYMENTS IN THE DISTRICT
COURT.  THE COURT HELD THAT, BECAUSE RESPONDENT WAS A LIQUIDATING
CORPORATION, IT WAS NOT "CARRYING ON OR DOING BUSINESS" WITHIN THE
MEANING OF THE CAPITAL STOCK TAX AND WAS THEREFORE EXEMPT.  IN SO
HOLDING, THE COURT REFUSED TO GIVE EFFECT TO THE TREASURY REGULATION
CLAIMED TO BE APPLICABLE.  FN2  35 F.SUPP.  340.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  120 F.2D 441.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE REVENUE ACTS. 
314 U.S. 601. 

THE REGULATION, ARTICLE 43(A)(5), PROVIDES: 

"ART. 43.  ILLUSTRATIONS.  - (A) GENERAL.  - IN GENERAL 'DOING
BUSINESS' INCLUDES ANY ACTIVITIES OF A CORPORATION WHETHER IT ENGAGES
IN - 

     .         .         .         .     . 

"(5) THE ORDERLY LIQUIDATION OF PROPERTY BY NEGOTIATING SALES FROM
TIME TO TIME AS OPPORTUNITY AND JUDGMENT DICTATE AND DISTRIBUTING THE
PROCEEDS AS LIQUIDATION IS EFFECTED - FOR EXAMPLE, THE LIQUIDATION OF
AN ESTATE, OR OF PROPERTIES TAKEN OVER FROM ANOTHER CORPORATION, OR OF
THE SHAREHOLDERS' FRACTIONAL INTERESTS IN PARTICULAR PROPERTY;" 

IF THE REGULATION IS BOTH APPLICABLE AND VALID, RESPONDENT MANIFESTLY
CANNOT PREVAIL. 

ON THE QUESTION OF APPLICABILITY THERE CAN BE NO DOUBT, FOR THE
LANGUAGE OF THE REGULATION PRECISELY DESCRIBES RESPONDENT'S
ACTIVITIES.  WE FIND WITHOUT SUBSTANCE RESPONDENT'S ASSERTIONS THAT
ARTICLE 43(B)(2)  FN3  IS INCONSISTENT WITH ARTICLE 43(A)(5) AND THAT
IT MORE EXACTLY FITS THE FACTS OF THIS CASE.  DURING THE PERIOD IN
QUESTION, RESPONDENT DID NOT FALL INTO THAT STATE OF QUIETUDE, COVERED
BY THE SPECIFIC LANGUAGE OF ARTICLE 43(B)(2), IN WHICH IT WAS MERELY
OWNING AND HOLDING SPECIFIC PROPERTY AND DISTRIBUTING THE RESULTING
PROCEEDS.  SEE ZONNE V. MINNEAPOLIS SYNDICATE, 220 U.S. 187; CF. VON
BAUMBACH V. SARGENT LAND CO., 242 U.S. 503, 516-17.  ON THE CONTRARY,
RESPONDENT WAS ACTIVELY ENGAGED IN FULFILLING THE PURPOSE OF ITS
CREATION, THE LIQUIDATION OF ITS HOLDINGS FOR THE BEST OBTAINABLE
PRICE. 

ARTICLE 43(A)(5) IS BOTH A CONTEMPORARY AND A LONG STANDING
ADMINISTRATIVE INTERPRETATION, HAVING BEEN IN EFFECT IN SUBSTANTIALLY
THE SAME FORM SINCE 1918, EXCEPT FOR THE PERIOD FROM 1926 TO 1933 WHEN
THE TAX WAS NOT IMPOSED.  FN4  WE ARE OF OPINION THAT IT IS VALID, AS
WELL AS APPLICABLE.  THE CRUCIAL WORDS OF THE STATUTE, "CARRYING ON OR
DOING BUSINESS," ARE NOT SO EASY OF APPLICATION TO VARYING FACTS THAT
THEY LEAVE NO ROOM FOR ADMINISTRATIVE INTERPRETATION OR ELUCIDATION. 
TO BE SURE, IN MANY, IF NOT IN MOST, INSTANCES THE FACTUAL SITUATION
WILL BE SO EXTREME AS TO LEAVE NO DOUBT WHETHER A CORPORATION IS DOING
BUSINESS OR NOT.  BUT THE NUANCES OF FACTS BETWEEN THE TWO EXTREMES
HAVE PRODUCED A NEBULOUS FIELD OF CONFUSION WHICH HAS BEEN RECOGNIZED
BY COURTS STRIVING TO FIT CLOSE CASES INTO ONE CATEGORY OR THE OTHER. 
FN5 INTERPRETATIVE REGULATIONS, SUCH AS ARTICLE 43(A)(5), ARE
APPROPRIATE AIDS TOWARD ELIMINATING THAT CONFUSION AND UNCERTAINTY. 
CF. HELVERING V. WILSHIRE OIL CO., 308 U.S. 90, 102; TEXTILE MILLS
SECURITIES CORP. V. COMMISSIONER, 314 U.S. 326.  REVERSED. 

FN1  THIS LANGUAGE HAS NOT BEEN CHANGED, EXCEPT FOR THE TAX PERIODS
AND THE AMOUNT OF THE TAX, IN THE SUBSEQUENT ACTS COVERING THE TAX
PERIOD HERE IN QUESTION.  SEE SEC. 401, REVENUE ACT OF 1936, C. 690, 49
STAT. 1733; SEC. 601, REVENUE ACT OF 1938, C. 289, 52 STAT. 565.  THE
PROVISION IS NOW INCORPORATED IN SEC. 1200(A) OF THE INTERNAL REVENUE
CODE. 

FN2  ARTICLE 43(A)(5) OF TREASURY REGULATIONS 64(1936 EDITION). 

FN3  "EXCEPTIONS.  - ORDINARILY THE EXCEPTIONS TO 'DOING BUSINESS'
ARE RESTRICTED TO LIMITED ACTIVITIES OF A CORPORATION, SUCH AS - 

     .         .         .         .    . 

"(2)  THE DISTRIBUTION OF THE AVAILS OF PROPERTY AND THE DOING ONLY
OF SUCH ACTS AS MAY BE NECESSARY FOR THE MAINTENANCE OF ITS CORPORATE
STATUS IN THE CASE IN WHICH THE CORPORATION EITHER WAS ORGANIZED FOR,
OR HAS REDUCED ITS ACTIVITIES TO, THE MERE OWNING AND HOLDING OF
SPECIFIC PROPERTY." 

FN4  ARTICLE 5 OF TREASURY REGULATIONS 38(1918 ED.), ISSUED UNDER THE
REVENUE ACT OF 1916, C. 463, 39 STAT. 756, PROVIDED: 

"...  A CORPORATION FORMED TO TAKE OVER MISCELLANEOUS STOCKS, BONDS,
AND OTHER PROPERTY, TO NEGOTIATE THE SALE OF THE VARIOUS ITEMS FROM
TIME TO TIME AS OPPORTUNITY AND JUDGMENT DICTATE, AND TO DISTRIBUTE THE
PROCEEDS FROM TIME TO TIME AS LIQUIDATION IS EFFECTED, IS ORGANIZED FOR
PROFIT AND WHILE ENGAGED IN SUCH LIQUIDATION IS CARRYING ON BUSINESS." 

THIS PROVISION, WITH MINOR CHANGES IN WORDING, WAS CONTINUED IN
TREASURY REGULATIONS 50(1919 ED.), ART. 18; (1920 ED.), ART. 11;
TREASURY REGULATIONS 64(1922 ED.), ART. 12; (1924 ED.), ART. 12; (1933
ED.), ART. 22; (1934 ED.), ART. 33.  IN 1936 TREASURY REGULATIONS 64
WERE REORGANIZED AND THE SUBSTANCE OF THE PROVISION QUOTED ABOVE WAS
CONTINUED AS ART. 43(A)(5) OF THE 1936 EDITION.  NO CHANGE WAS MADE IN
THE 1938 EDITION. 

FN5  SEE EATON V. PHOENIX SECURITIES CO., 22 F.2D 497, 498; UNITED
STATES V. HOTCHKISS REDWOOD CO., 25 F.2D 958; HARMAR COAL CO. V.
HEINER, 34 F.2D 725, 727; ARGONAUT CONSOLIDATED MINING CO. V. ANDERSON,
52 F.2D 55, 56; AMERICAN INVESTMENT SECURITIES CO. V. UNITED STATES,
112 F.2D 231, 232. 

THE DECISIONS OF THIS COURT ILLUSTRATE THE DIFFICULT PROBLEMS OF
CLASSIFICATION ENCOUNTERED.  SEE CEDAR STREET CO. V. PARK REALTY CO.,
220 U.S. 107, 170; VON BAUMBACH V. SARGENT LAND CO., 242 U.S. 503;
EDWARDS V. CHILE COPPER CO., 270 U.S. 452; PHILLIPS V. INTERNATIONAL
SALT CO., 274 U.S. 718 - WITH WHICH COMPARE ZONNE V. MINNEAPOLIS
SYNDICATE, 220 U.S. 187; MCCOACH V. MINEHILL RAILWAY CO., 228 U.S. 295;
UNITED STATES V. EMERY, BIRD, THAYER CO., 237 U.S. 28. 
..END :
























GREGG CARTAGE CO. V. U.S., 316 U.S. 74 


NO. 535.  ARGUED MARCH 4, 1942.  - DECIDED APRIL 13, 1942.  - 42
F.SUPP.  266, AFFIRMED. 


1.  THE PROVISION OF SEC. 206(A) OF THE MOTOR CARRIER ACT, 1935,
GRANTING "GRANDFATHER" RIGHTS TO COMMON CARRIERS "IN BONA FIDE
OPERATION ON JUNE 1, 1935, AND SINCE THAT TIME," REQUIRES THAT THE
SERVICE SHALL HAVE BEEN CONTINUOUS (EXCEPT FOR INTERRUPTIONS OVER WHICH
THE CARRIER "HAD NO CONTROL") FROM JUNE 1, 1935, UNTIL THE TIME OF THE
HEARING BY THE COMMISSION ON THE APPLICATION.  P. 78. 

2.  THE COMMISSION WAS WARRANTED IN HOLDING AS A MATTER OF LAW THAT
AN INTERRUPTION OF SERVICE CAUSED BY THE CARRIER'S BANKRUPTCY WAS NOT
ONE OVER WHICH THE CARRIER "HAD NO CONTROL" WITHIN THE MEANING OF THE
ACT; AND IT WAS NOT REQUIRED TO GO BEHIND THE ADJUDICATION AND EXAMINE
INTO THE PARTICULAR CAUSES OF THE BANKRUPTCY.  P. 79. 

3.  THE GRANDFATHER CLAUSE OF THE MOTOR CARRIER ACT IS TO BE
CONSTRUED AS EXTENDING ONLY TO CARRIERS PLAINLY WITHIN ITS TERMS.  P.
83. 

4.  A PURCHASER OF THE GRANDFATHER RIGHTS OF A BANKRUPT CARRIER
STANDS IN NO BETTER POSITION WITH RESPECT TO SUCH RIGHTS THAN DID THE
BANKRUPT.  P. 82. 

5.  IN THIS CASE, THE INTERRUPTION OF SERVICE WAS OF SUFFICIENT
DURATION - AT LEAST 69 DAYS - TO ESTABLISH THAT THE CARRIER HAD NOT
BEEN IN OPERATION "SINCE" JUNE 1, 1935, WITHIN THE MEANING OF SEC.
206(A).  P. 83. 

6.  A CLAIM THAT THE DELAY OF THE COMMISSION IN ACTING UPON AN
APPLICATION UNDER SEC. 206(A) DEPRIVED THE APPLICANT OF AN ADVANTAGE
WHICH HE WOULD HAVE HAD UNDER SEC. 212(A) - WHERE SUCH DELAY IS NOT
SHOWN TO HAVE BEEN ARBITRARY OR DISCRIMINATORY, NOR, IN VIEW OF THE
MAGNITUDE OF THE COMMISSION'S TASK IN RESPECT TO APPLICATIONS UNDER
SEC. 206(A), UNREASONABLE - IS NO GROUND FOR RELIEF.  P. 83. 

GREGG CARTAGE & STORAGE CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF OHIO. 

APPEAL FROM A DISTRICT COURT OF THREE JUDGES DISMISSING THE COMPLAINT
IN A SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
DENYING AN APPLICATION FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY UNDER SEC. 206(A) OF THE MOTOR CARRIER ACT, 1935. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL IS FROM A JUDGMENT OF A STATUTORY THREE-JUDGE COURT
DENYING APPELLANTS' PETITION TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION REFUSING THE GREGG CARTAGE & STORAGE COMPANY A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY UNDER THE SO-CALLED
GRANDFATHER CLAUSE OF SEC. 206(A) OF THE MOTOR CARRIER ACT, 1935, 49
U.S.C. SEC. 306(A). 

THE GREGG COMPANY, AN OHIO CORPORATION, OPERATED IN 1935 AND EARLIER
AS A COMMON CARRIER OF GENERAL FREIGHT BETWEEN POINTS IN SEVERAL
NORTHEASTERN STATES.  IN A NUMBER OF IMPORTANT CITIES, IT MAINTAINED
TERMINALS AT WHICH FREIGHT WAS ASSEMBLED.  IT PERFORMED NO OVER-THE
ROAD CARRIER SERVICE WITH ITS OWN VEHICLES, BUT PROVIDED SUCH SERVICE
ENTIRELY BY THE USE OF SO-CALLED OWNER-OPERATOR VEHICLES.  SUCH
VEHICLES AS IT OWNED AND OPERATED DIRECTLY WERE USED IN CARTAGE IN AND
ABOUT CLEVELAND. 

ON FEBRUARY 12, 1936, THE GREGG COMPANY FILED AN APPLICATION WITH THE
INTERSTATE COMMERCE COMMISSION FOR A CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY AS A COMMON CARRIER UNDER THE GRANDFATHER CLAUSE OF SEC.
206(A) OF THE MOTOR CARRIER ACT.  A HEARING WAS HELD ON JUNE 8 AND 9,
1937, BEFORE AN EXAMINER WHO, ON DECEMBER 17, 1937, RECOMMENDED THAT
THE CERTIFICATE BE GRANTED. 

MEANWHILE, THE GREGG COMPANY HAD FAILED AND CEASED TO OPERATE.  IT
HAD ARRANGED THE FILING ON OCTOBER 4, 1937, OF A CREDITOR'S BILL IN A
STATE COURT OF OHIO, WHICH ON THE FOLLOWING DAY APPOINTED THE COMPANY'S
COUNSEL TO BE ITS RECEIVER WITH AUTHORITY TO CONTINUE THE BUSINESS.  ON
THE DAY OF THIS RECEIVER'S APPOINTMENT, OTHER CREDITORS FILED A
PETITION IN BANKRUPTCY IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO, EASTERN DIVISION, WHICH ON OCTOBER 27
ADJUDICATED THE COMPANY A BANKRUPT, AND ON OCTOBER 30 APPOINTED A
RECEIVER TO PRESERVE THE ASSETS OF THE ESTATE PENDING THE ELECTION AND
QUALIFICATION OF A TRUSTEE.  FN1  IN OPERATING THE BUSINESS, THE STATE
COURT RECEIVER CONFINED HIMSELF TO THE COMPLETION OF SHIPMENTS EN
ROUTE, AND DID NOT SOLICIT OR ACCEPT NEW BUSINESS.  ON OCTOBER 14, HE
FILED WITH THE COMMISSION A PETITION FOR PERMISSION TO SUSPEND
OPERATIONS WITHOUT PREJUDICE TO RIGHTS UNDER THE GRANDFATHER CLAUSE. 
THE COMMISSION, OF THE OPINION THAT IT LACKED POWER TO AUTHORIZE SUCH A
SUSPENSION, DENIED THIS PETITION ON NOVEMBER 30, 1937.  THE RECEIVER IN
BANKRUPTCY TOOK OVER THE BUSINESS ON THE DAY OF HIS APPOINTMENT, AND
CONDUCTED NO OPERATIONS AT ANY TIME.  PURSUANT TO AN ORDER OF THE
BANKRUPTCY COURT, ON DECEMBER 6, 1937, HE SOLD THE TRADE NAMES AND GOOD
WILL OF THE BANKRUPT ESTATE, TOGETHER WITH ITS RIGHTS UNDER THE
GRANDFATHER CLAUSE APPLICATION, TO APPELLANT NORTHEASTERN
TRANSPORTATION COMPANY, FOR $850 AT PUBLIC AUCTION. 

ON JANUARY 7, 1938, NORTHEASTERN AND THE RECEIVER IN BANKRUPTCY FILED
A JOINT APPLICATION WITH THE COMMISSION ASKING THAT NORTHEASTERN BE
SUBSTITUTED AS APPLICANT IN LIEU OF GREGG.  THE COMMISSION WITHHELD
ACTION UNTIL IT HAD DETERMINED GREGG'S RIGHTS.  NORTHEASTERN CONSIDERED
A RESUMPTION OF OPERATIONS, BUT DECIDED AGAINST IT ON THE ADVICE OF
FIELD REPRESENTATIVES OF THE INTERSTATE COMMERCE COMMISSION. 

A FURTHER HEARING BEFORE ANOTHER EXAMINER, CONFINED TO THE
CIRCUMSTANCES OF THE INTERRUPTION OF GREGG'S SERVICE, RESULTED IN
ANOTHER RECOMMENDATION OF THE ISSUANCE OF A CERTIFICATE UNDER THE
GRANDFATHER CLAUSE.  THE COMMISSION, HOWEVER, DENIED THE APPLICATION
DECEMBER 12, 1939, AFTER A REHEARING FOLLOWING THE REPORT OF DIVISION
5, A MAJORITY OF WHICH HAD HELD SIMILARLY ON NOVEMBER 14, 1938.  10
M.C.C. 255, 21 M.C.C. 17.  THE COMMISSION RULED THAT AN INTERRUPTION OF
SERVICE WITHIN THE CONTROL OF THE APPLICANT HAD OCCURRED, THAT THE
PURCHASE BY NORTHEASTERN HAD CONFERRED NO OPERATING RIGHTS, AND THAT
THEREFORE NEITHER CORPORATION WAS ENTITLED TO A CERTIFICATE UNDER THE
GRANDFATHER CLAUSE.  FIVE COMMISSIONERS DISSENTED.  GREGG AND ITS
TRUSTEE IN BANKRUPTCY THEN FILED A COMPLAINT IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION,
PRAYING THAT THE ORDER OF THE COMMISSION DENYING GREGG'S APPLICATION BE
ANNULLED AND SET ASIDE AND THAT THE COMMISSION BE DIRECTED TO ISSUE A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO GREGG.  A STATUTORY
COURT OF THREE JUDGES WAS CONVENED, NORTHEASTERN WAS ALLOWED TO
INTERVENE, AND JUDGMENT WENT AGAINST THE COMPLAINANTS, WHO APPEALED TO
THIS COURT, WHICH NOTED PROBABLE JURISDICTION.  FN2  42 F.SUPP.  266. 

APPELLANTS CONTEND THAT THE COMMISSION AND THE COURT BELOW
ERRONEOUSLY CONSTRUED SEC. 206(A) FN3  OF THE MOTOR CARRIER ACT IN
HOLDING THAT, EXCEPTING THE SPECIFIED INTERRUPTIONS OF SERVICE, THE
STATUTE REQUIRED CONTINUOUS OPERATION FROM JUNE 1, 1935, UNTIL THE
HEARING BY THE COMMISSION ON THE APPLICATION.  WE HAVE, HOWEVER, HELD
TO THE CONTRARY.  UNITED STATES V. MAHER, 307 U.S. 148, PETITION FOR
LIMITED REHEARING DENIED, 307 U.S. 649.  HOEY V. UNITED STATES, 308
U.S. 510; LUBETICH V. UNITED STATES, 315 U.S. 57. 

APPELLANTS CONTEND ALTERNATIVELY THAT THE COMMISSION SHOULD BE
REVERSED FOR REFUSING TO HOLD THAT THE APPLICANT "HAD NO CONTROL" OVER
THE CESSATION OF OPERATIONS. 

FROM OCTOBER 15, 1935 TO DECEMBER 31, 1936, GREGG WAS INSURED AGAINST
PUBLIC LIABILITY AND PROPERTY DAMAGE BY AN INSURANCE COMPANY, WHICH IN
1936 FAILED EITHER TO DISPROVE OR SETTLE CERTAIN CLAIMS AGAINST GREGG
AND WAS RUMORED TO BE INSOLVENT.  FOR THESE REASONS GREGG CANCELLED ITS
CONTRACT WITH THIS COMPANY AND OBTAINED SIMILAR INSURANCE WITH ANOTHER
COMPANY, PAYING THE PREMIUMS IN ADVANCE.  THE FAILING INSURANCE COMPANY
WAS ADJUDGED A BANKRUPT IN JANUARY OF 1937, AND CEASED TO PAY ANY
CLAIMS.  GREGG, THEREBY LEFT WITH THE BURDEN OF SATISFYING CLAIMS FOR
PERSONAL INJURY AND PROPERTY DAMAGE ARISING DURING THE PERIOD WHEN IT
HAD CARRIED INSURANCE IN THE BANKRUPT COMPANY, PAID SOME OF THEM IN THE
LATER MONTHS OF 1937; BUT APPROXIMATELY 175, ESTIMATED TO AGGREGATE IN
THEIR FACE AMOUNT ABOUT $200,000, REMAINED UNPAID.  IT ALSO PAID ABOUT
$15,000 ON CLAIMS FOR CARGO LOSS AND DAMAGE, WHICH TWO OTHER INSURERS,
RELYING UPON "TECHNICAL" INSURERS' DEFENSES, REFUSED TO PAY.  ALL
POLICIES OF INSURANCE TAKEN OUT BY GREGG HAD THE REQUIRED APPROVAL OF
THE INTERSTATE COMMERCE COMMISSION. 

SOLVENT ON JUNE 30, 1937, GREGG HAD BECOME INSOLVENT BY OCTOBER 30,
1937.  WHEN IT APPEARED IMPOSSIBLE TO SATISFY ALL DEMANDS IN FULL,
RESORT WAS HAD TO THE FRIENDLY RECEIVERSHIP IN THE STATE COURT.  THIS
PRECIPITATED THE INVOLUNTARY BANKRUPTCY IN THE FEDERAL COURT, WHICH IN
TURN BROUGHT OPERATIONS TO A HALT. 

THE COMMISSION BASED ITS REFUSAL TO FIND THAT THE APPLICANT "HAD NO
CONTROL" OVER THE INTERRUPTION OF SERVICE UPON THE FACT THAT SUCH
INTERRUPTION FOLLOWED UPON AN ADJUDICATION OF BANKRUPTCY RESULTING FROM
THE UNSUCCESSFUL CONDUCT OF ITS BUSINESS AFFAIRS, AND DID NOT GO BACK
OF THE ADJUDICATION TO FIND AND GIVE DETAILED CONSIDERATION TO THE
PARTICULAR CAUSES OF THE FAILURE.  APPELLANTS CONTEND THAT THIS WAS
ERROR, AND FOR A RULE REQUIRING THAT IN EVERY CASE OF THIS SORT THE
COMMISSION MUST TRACE OUT THE CHAIN OF CAUSATION AND WEIGH THE
BANKRUPT'S JUDGMENT AGAINST THE PRESSURES OF CIRCUMSTANCE.  WE SUSTAIN
THE COMMISSION IN CONSTRUING THE STATUTE AS NOT REQUIRING IT TO GO BACK
OF THE BANKRUPTCY ADJUDICATION TO SEARCH FOR ULTIMATE CAUSES. 

HOW FAR ONE BY AN EXERCISE OF FREE WILL MAY DETERMINE HIS GENERAL
DESTINY OR HIS COURSE IN A PARTICULAR MATTER AND HOW FAR HE IS THE TOY
OF CIRCUMSTANCE HAS BEEN DEBATED THROUGH THE AGES BY THEOLOGIANS,
PHILOSOPHERS, AND SCIENTISTS.  WHATEVER DOUBTS THEY HAVE ENTERTAINED AS
TO THE MATTER, THE PRACTICAL BUSINESS OF GOVERNMENT AND ADMINISTRATION
OF THE LAW IS OBLIGED TO PROCEED ON MORE OR LESS ROUGH AND READY
JUDGMENTS BASED ON THE ASSUMPTION THAT MATURE AND RATIONAL PERSONS ARE
IN CONTROL OF THEIR OWN CONDUCT.  CERTAINLY THAT ASSUMPTION MUST BE
MADE IN REFERENCE TO A CORPORATION SUCH AS THE APPLICANT.  SOCIETY, IN
CREATING A CORPORATION, VESTING ITS MANAGEMENT IN A BOARD OF DIRECTORS,
GRANTING IT LARGE POWERS AND NOT INCONSIDERABLE IMMUNITIES, CAN HARDLY
ALLOW THAT ITS BUSINESS AFFAIRS ARE AT ANY TIME OUT OF THE CONTROL OF
THOSE WHOSE DUTY IT IS TO CONDUCT THEM.  THE BANKRUPTCY ACT STATES THAT
EVEN AN INVOLUNTARY ADJUDICATION RESULTS ONLY FROM SOME "ACT OF
BANKRUPTCY," DEFINED UPON THE CLEAR ASSUMPTION THAT IT IS WITHIN THE
BANKRUPT'S CONTROL.  FN4 WHETHER OR NOT THIS ASSUMPTION SQUARES WITH
PHILOSOPHICAL DOCTRINE, OR EVEN WITH REALITY,  FN5  IS NOT FOR OUR
DETERMINATION.  THE COMMISSION, AND THE COURTS TOO, MUST GET ON WITH
THE APPLICATION OF THE FEDERAL STATUTES WITHOUT WAITING TO SETTLE THE
VERITY OF THE PHILOSOPHICAL ASSUMPTIONS ON WHICH THEY REST. 

THE COMMISSION WAS WARRANTED IN HOLDING AS MATTER OF LAW THAT THE
INTERRUPTION BECAUSE OF BANKRUPTCY WAS NOT ONE OVER WHICH THE APPLICANT
HAD NO CONTROL WITHIN THE MEANING OF THE MOTOR CARRIER ACT.  THE
COMPLEXITY OF THE CHAIN OF CAUSATION SHOWN IN THIS CASE MAKES IT AN APT
ILLUSTRATION OF THE IMPRACTICABILITY OF ANY OTHER RULE. 

WHEN IT FOUND ITSELF UNABLE TO MEET ITS OBLIGATIONS, GREGG ARRANGED A
RECEIVERSHIP IN THE STATE COURT, SECURING THE APPOINTMENT OF ITS OWN
COUNSEL AS RECEIVER.  ONLY THE ONE CREDITOR WHICH FILED THE BILL
APPEARS TO HAVE BEEN CONSULTED.  THUS, THE PETITIONER NOT ONLY ARRANGED
DELIBERATELY TO COMMIT AN ACT OF BANKRUPTCY, BUT IT MANAGED THE AFFAIR
IN A MANNER NOT UNLIKELY TO PROVOKE THE UNCONSULTED CREDITORS TO FILE A
PETITION IN BANKRUPTCY - PRESUMABLY CONSIDERED THEIR BEST OR ONLY MEANS
OF OBTAINING THE DISINTERESTEDNESS IN THE ADMINISTRATION OF THE ESTATE
TO WHICH THEY WERE ENTITLED. 

THE CLAIMS WHICH, TOGETHER WITH THE ADVANCE PAYMENT OF PREMIUMS FOR
NEW INSURANCE, CONSTITUTED THE IMMEDIATE CAUSE OF GREGG'S FINANCIAL
DIFFICULTIES, WERE, AS WE HAVE SAID, OF VARIOUS SORTS.  BULKING LARGEST
WERE THOSE FOR PERSONAL INJURIES AND PROPERTY DAMAGE, WHICH NUMBERED
APPROXIMATELY 175 AND IN THEIR FACE AMOUNT AGGREGATED APPROXIMATELY
$200,000.  THEIR PRECISE NATURE IS NOT DISCLOSED BY THE RECORD, AND
CONJECTURE IN THIS REGARD IS MADE PARTICULARLY DIFFICULT BY GREGG'S
METHOD OF DOING BUSINESS - WHICH WAS TO AVAIL ITSELF ENTIRELY OF "OWNER
OPERATOR" VEHICLES FOR ITS "OVER-THE-ROAD" SERVICES.  DOUBTLESS THESE
CLAIMS WERE FOUNDED ALMOST ENTIRELY UPON THE NEGLIGENT OPERATION OF
VEHICLES FOR WHICH GREGG WAS IN SOME WAY HELD LEGALLY RESPONSIBLE.  WE
ARE NOT INFORMED WHETHER SUCH RESPONSIBILITY RESTED UPON THE PRINCIPLE
OF RESPONDEAT SUPERIOR, EXPRESS CONTRACTUAL ASSUMPTION, OR BOTH.  THE
REST OF THE CLAIMS, UPON WHICH ABOUT $15,000 WERE PAID, WERE FOR CARGO
LOSS AND DAMAGE.  THE RECORD DOES NOT SHOW WHETHER PAYMENT WAS MADE
SOLELY TO RETAIN THE GOOD WILL OF SHIPPERS, OR ALSO TO SATISFY THE
APPLICANT'S LEGAL LIABILITY - WHICH WOULD HAVE RESTED UPON ITS LEGAL
CONTROL OF THE CARGO. 

IT IS TRUE THAT GREGG WOULD NOT HAVE HAD TO BEAR THE BURDEN OF MOST,
IF NOT ALL, OF THE CLAIMS, HAD IT NOT BEEN FOR SOME UNFORTUNATE
EXPERIENCES WITH INSURANCE COMPANIES.  ITS MAJOR MISFORTUNE WAS THE
FAILURE OF THE COMPANY IN WHICH IT CARRIED ITS INSURANCE AGAINST
LIABILITY FOR PERSONAL INJURY AND PROPERTY DAMAGE.  WHAT CONSIDERATION
ACTUATED THE CHOICE OF THE PARTICULAR INSURANCE COMPANY, AND WHAT
CAUTION, IF ANY, WAS OBSERVED IN SELECTING IT, DO NOT APPEAR.  IT
EITHER MISUNDERSTOOD THE COVERAGE OF ITS OTHER POLICIES OR PURCHASED
POLICIES NOT SPECIFICALLY COMPREHENSIVE, AND FOUND ITSELF TAKING CARE
OF VERY SUBSTANTIAL CLAIMS FOR CARGO LOSS BECAUSE OF "TECHNICAL"
INSURERS' DEFENSES WHICH SEEM TO HAVE BEEN SUFFICIENT UNDER THE OHIO
LAW. 

IN ANY EVENT, THE CHOICES OF INSURERS, AS WELL OF ITS SERVANTS AND
OPERATORS, WERE GREGG'S OWN - AS WAS THE JUDGMENT WHICH WAS EXERCISED
WITH REGARD TO THE NUMEROUS OTHER PHASES OF ITS BUSINESS BEARING UPON
ITS SOLVENCY - AND THE FINAL PRODUCT COULD NOT HAVE BEEN A MATTER OVER
WHICH IT HAD NO CONTROL. 

FURTHERMORE, THE INTERRUPTION OF SERVICE WAS THE DELIBERATE ACT OF
THOSE WHO FOR THE TIME BEING STOOD IN THE POSITION OF APPLICANT AND
OWNED ITS RIGHTS.  DURING THE INTERVAL BETWEEN RECEIVERSHIP AND SALE OF
THESE RIGHTS TO NORTHEASTERN, WE TAKE IT THAT THE BENEFICIAL INTEREST
THEREIN VESTED IN THE CREDITORS AND THE LEGAL TITLE IN THE RECEIVER OR
TRUSTEE.  THE FEDERAL RECEIVER OR TRUSTEE COULD HAVE BEEN AUTHORIZED TO
CONDUCT THE BUSINESS OF THE BANKRUPT FOR A LIMITED PERIOD, IF IN THE
BEST INTERESTS OF THE ESTATE.  SEC. 2 OF THE ACT OF JULY 1, 1898, AS
AMENDED, 11 U.S.C. SEC. 11.  THE CREDITORS AND THEIR REPRESENTATIVES,
HOWEVER, FAILED TO SEEK SUCH AUTHORITY, EVIDENTLY REGARDING THE RIGHTS,
WHICH LATER SOLD FOR $850, NOT WORTH THE EXPENSE AND RISK OF CONTINUING
BUSINESS.  IT IS THE PURCHASER NORTHEASTERN, ORGANIZED TO ACQUIRE THE
"GRANDFATHER" RIGHTS, AND TO AN UNDETERMINED EXTENT IDENTIFIED WITH THE
MANAGEMENT OF THE BANKRUPT,  FN6  WHICH, HAVING BOUGHT THESE RIGHTS IN
THIS STATE OF VOLUNTARILY SUSPENDED ANIMATION, SEEKS TO REVIVE THEM. 
BUT IT CANNOT SAY THAT IT TAKES THE RIGHTS FREE OF ANY IMPAIRMENT BY
THE VOLUNTARY SUSPENSION OF OPERATION BY THE THEN OWNER FROM WHOM IT
DERIVES TITLE.    THE APPLICANT FOR A CERTIFICATE UNDER THE GRANDFATHER
CLAUSE SEEKS TO EXEMPT HIS FURTHER OPERATIONS FROM SCRUTINY AS TO
PUBLIC CONVENIENCE AND NECESSITY.  IF HE IS ABLE TO MEET THOSE TESTS,
HE MAY BE AUTHORIZED TO OPERATE, EVEN IF HE NEVER HAD GRANDFATHER
RIGHTS, OR IF THOSE HE ONCE HAD HAVE BEEN LOST.  AS THE MOTOR CARRIER
ACT IS REMEDIAL, AND THE GRANDFATHER CLAUSE CONFERS A SPECIAL
PRIVILEGE, THE PROVISO DEFINING EXEMPTIONS IS TO BE HELD TO EXTEND ONLY
TO CARRIERS PLAINLY WITHIN ITS TERMS.  MCDONALD V. THOMPSON, 305 U.S.
263, 266. 

IN ITS OPINION THE COMMISSION STATED THAT "IT IS USELESS TO SPECULATE
UPON THE QUESTION WHETHER THE 'GRANDFATHER' RIGHT EXPIRED BEFORE OR
AFTER THE SALE."  THIS WE UNDERSTAND TO MEAN THAT, HAVING DETERMINED
THAT THE CESSATION OF OPERATIONS WAS NOT A MATTER OVER WHICH GREGG "HAD
NO CONTROL," THE COMMISSION WAS OF OPINION THAT BY THE TIME OF THE SALE
THE CESSATION OF OPERATIONS WAS OF SUFFICIENT DURATION - AT LEAST 69
DAYS - TO ESTABLISH THAT GREGG HAD NOT BEEN "IN  ... OPERATION SINCE"
JUNE 1, 1935, WITHIN THE MEANING OF SEC. 206(A).  THIS WAS A REASONABLE
CONCLUSION, ESPECIALLY SINCE ANY SUBSTANTIAL INTERRUPTION OF ONE
CARRIER'S SERVICE TENDS TO RESULT IN EXPANSION OF OTHER FACILITIES TO
MEET THE CONTINUING NEEDS OF SHIPPERS, AND THUS TO CAUSE OVERCROWDING
IF THE SUSPENDED SERVICE IS RESUMED. 

FINALLY, APPELLANTS CLAIM TO BE ENTITLED TO RELIEF FROM PREJUDICE
SAID TO HAVE RESULTED FROM DELAY OF THE COMMISSION IN ACTING ON GREGG'S
APPLICATION MADE UNDER SEC. 206(A) ON FEBRUARY 12, 1936.  THEY POINT
OUT THAT, HAD THE COMMISSION ACTED AT ONCE, A CERTIFICATE WOULD HAVE
ISSUED, THUS CONFERRING THE BENEFITS OF SEC. 212(A).  FN7  BUT BY ITS
TERMS SEC. 212(A) IS APPLICABLE ONLY WHERE A CERTIFICATE HAS ALREADY
ISSUED; AND, BEING A SECTION OF GENERAL APPLICABILITY, AT LEAST FOR
PRESENT PURPOSES, IT HAS NO ANALOGICAL BEARING UPON THE CONSTRUCTION OF
THE SPECIFIC PROVISION RELATING TO INTERRUPTIONS OF SERVICE MADE IN
SEC. 206(A).  THE DELAY IN PASSING UPON THE APPLICATION WAS
CONSIDERABLE AND REGRETTABLE, AS THE COMMISSION ACKNOWLEDGED, BUT IT
DOES NOT SEEM TO HAVE BEEN ARBITRARY OR THE RESULT OF ANY DELIBERATE
DISCRIMINATION, NOR, IN VIEW OF THE MAGNITUDE OF THE COMMISSION'S TASK,
UNREASONABLE.  THE COMMISSION HAD NEARLY 90,000 APPLICATIONS TO PASS
UPON UNDER SEC. 206(A), AND OF COURSE COULD NOT HAVE BEEN EXPECTED TO
PASS UPON THEM SIMULTANEOUSLY.  IT IS NOT WITHIN OUR PROVINCE TO REMEDY
INEQUALITIES NECESSARILY INCIDENT TO THE ADMINISTRATION OF THE
STATUTE.  AFFIRMED. 

FN1  THE TRUSTEE IN BANKRUPTCY, AN APPELLANT HERE, WAS APPOINTED NEAR
THE END OF DECEMBER, 1937. 

FN2  URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, 28 U.S.C. SEC. 47A. 

FN3  THIS PROVIDES IN PERTINENT PART THAT:  "IF ANY SUCH CARRIER OR
PREDECESSOR IN INTEREST WAS IN BONA FIDE OPERATION AS A COMMON CARRIER
BY MOTOR VEHICLE ON JUNE 1, 1935, OVER THE ROUTE OR ROUTES OR WITHIN
THE TERRITORY FOR WHICH APPLICATION IS MADE AND HAS SO OPERATED SINCE
THAT TIME, ...  EXCEPT  ...  AS TO INTERRUPTIONS OF SERVICE OVER WHICH
THE APPLICANT OR ITS PREDECESSOR IN INTEREST HAD NO CONTROL, THE
COMMISSION SHALL ISSUE SUCH CERTIFICATE WITHOUT REQUIRING FURTHER PROOF
THAT PUBLIC CONVENIENCE AND NECESSITY WILL BE SERVED BY SUCH
OPERATION."  49 U.S.C., SEC. 306(A). 

FN4  THE FOLLOWING ARE DEFINED AS ACTS OF BANKRUPTCY:  (1) FRAUDULENT
CONVEYANCES OR CONCEALMENTS OF PROPERTY, (2) TRANSFERS WHILE INSOLVENT,
(3) PERMITTING, WHILE INSOLVENT, A CREDITOR'S LIEN TO ATTACH TO
PROPERTY THROUGH LEGAL PROCEEDINGS, (4) ASSIGNMENTS FOR THE BENEFIT OF
CREDITORS, (5) PERMITTING OR PROCURING, WHILE INSOLVENT IN EITHER THE
BANKRUPTCY OR EQUITY SENSE, A RECEIVER TO BE APPOINTED TO TAKE CHARGE
OF THE BANKRUPT'S PROPERTY, (6) ADMISSIONS IN WRITING OF INABILITY TO
PAY DEBTS AND OF WILLINGNESS TO BE ADJUDGED A BANKRUPT.  SEC. 3A OF THE
ACT OF JULY 1, 1898, AS AMENDED, 11 U.S.C. SEC. 21(A). 

FN5  TREIMAN, ACTS OF BANKRUPTCY:  A MEDIEVAL CONCEPT IN MODERN
BANKRUPTCY LAW, 52 HARVARD LAW REVIEW 189. 

FN6  THE COMMISSION FOUND THAT NORTHEASTERN WAS INCORPORATED TO TAKE
OVER THE BANKRUPT'S RIGHTS AND BUSINESS, THAT THE FORMER PRESIDENT OF
GREGG IS THE NEW COMPANY'S GENERAL FREIGHT AGENT, AND THE FORMER
SUPERINTENDENT OF TRANSPORTATION IS A STOCKHOLDER OF THE NEW COMPANY;
AND THAT "OTHER CONNECTIONS, IF ANY, BETWEEN THE COMPANIES THROUGH
THEIR RESPECTIVE OFFICIALS AND EMPLOYEES CANNOT BE DETERMINED FROM THE
RECORDS." 

FN7  THIS READS IN PART AS FOLLOWS:  "THAT NO SUCH CERTIFICATE,
PERMIT, OR LICENSE SHALL BE REVOKED (EXCEPT UPON APPLICATION OF THE
HOLDER) UNLESS THE HOLDER THEREOF WILLFULLY FAILS TO COMPLY, WITHIN A
REASONABLE TIME, NOT LESS THAN THIRTY DAYS, TO BE FIXED BY THE
COMMISSION, WITH A LAWFUL ORDER OF THE COMMISSION, MADE AS PROVIDED IN
TO THE RULE OR REGULATION OF THE COMMISSION THEREUNDER, OR TO THE TERM,
CONDITION, OR LIMITATION OF SUCH CERTIFICATE, PERMIT, OR LICENSE, FOUND
BY THE COMMISSION TO HAVE BEEN VIOLATED BY SUCH HOLDER."  49 U.S.C.
SEC. 312(A). 

ORIGINALLY THE PERIOD WAS 90 DAYS.  BY AN AMENDMENT OF JUNE 29, 1938,
52 STAT. 1239, IT WAS REDUCED TO THE PRESENT 30 DAYS. 

MR. JUSTICE DOUGLAS, DISSENTING: 

I CANNOT BELIEVE THAT EXPERTS OF THE SUBJECT - SAY, REFEREES CHARGED
WITH THE DUTIES OF ADMINISTERING THE BANKRUPTCY LAW - WOULD CONCLUDE
THAT EVERY BANKRUPTCY AROSE WITHOUT EXCEPTION FROM CONDITIONS WHICH
WERE WITHIN IN THE "CONTROL" OF THE BANKRUPT IN ANY ACCEPTED MEANING OF
THE WORD.  NOR DO I THINK THAT THAT VIEW WOULD BE TAKEN IN CASE OF
RECEIVERSHIPS.  YET THAT IS THE IRREBUTTABLE PRESUMPTION WHICH THE
COMMISSION HAS CREATED IN THIS TYPE OF CASE.  CONGRESS DID NOT CREATE
IT.  CONGRESS MERELY PROVIDED THAT THIS CLASS OF CARRIER HAD A RIGHT TO
THE STATUTORY GRANT ON A SHOWING, INTER ALIA, THAT IT WAS IN "BONA FIDE
OPERATION AS A COMMON CARRIER BY MOTOR VEHICLE ON JUNE 1, 1935" AND
"HAS SO OPERATED SINCE THAT TIME" EXCEPT AS TO "INTERRUPTIONS OF
SERVICE OVER WHICH THE APPLICANT OR ITS PREDECESSOR IN INTEREST HAD NO
CONTROL."  MOTOR CARRIER ACT OF 1935, SEC. 206(A); 49 U.S.C. SEC.
306(A).  I WOULD HAVE SUPPOSED THAT THE QUESTION OF "CONTROL" WAS "AN
ISSUE OF FACT TO BE DETERMINED BY THE SPECIAL CIRCUMSTANCES OF EACH
CASE."  ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 145. 
THAT WOULD MEAN THAT "SO LONG AS THERE IS WARRANT IN THE RECORD FOR THE
JUDGMENT OF THE EXPERT BODY IT MUST STAND."  ID. PP. 145-146.  BUT THAT
IS QUITE DIFFERENT FROM GIVING THE WORD "CONTROL" A CONSTRUCTION WHICH
PREVENTS A PERSON FROM SHOWING UNDER ANY CIRCUMSTANCES THAT THE EVENTS
WHICH LED TO HIS BUSINESS DISASTER WERE NOT SUBJECT TO HIS "CONTROL." 
ON THE ONE HAND, THE COMMISSION RULES THAT INTERRUPTIONS OF SERVICE
OWING TO FLOODS, FN1  SNOW,  FN2  UNSAFE  FN3  OR IMPASSABLE  FN4
ROADS, HIGHWAY CONSTRUCTION,  FN5  DROUGHTS WHICH DESTROY A CARRIER'S
CHIEF SOURCE OF BUSINESS,  FN6  ILL HEALTH,  FN7  STRIKES,  FN8  OR THE
ILLEGAL ACTION OF GOVERNMENTAL AUTHORITIES  FN9  CONSTITUTE GROUNDS FOR
HOLDING THAT AN INTERRUPTION OF SERVICE IS BEYOND AN APPLICANT'S
"CONTROL."  BUT SIMILAR MISFORTUNES OF A PURELY ACCIDENTAL CHARACTER
WHICH AFFECT FINANCIAL STABILITY AND END IN BANKRUPTCY OR RECEIVERSHIP
ARE HELD AS A MATTER OF LAW TO BE SUBJECT TO THE CARRIER'S "CONTROL." 

THE DISTORTION WHICH THAT INTERPRETATION INVOLVES IS WELL ILLUSTRATED
BY THIS CASE.  THERE WAS EVIDENCE TENDING TO SHOW THE FOLLOWING:
DURING THE YEAR 1936 THE APPLICANT WAS INSURED AGAINST PUBLIC LIABILITY
AND PROPERTY DAMAGE BY THE CENTRAL MUTUAL INSURANCE CO. HEARING RUMORS
THAT CENTRAL MUTUAL WAS IN FINANCIAL DIFFICULTIES AND WAS NOT PAYING
CLAIMS, APPLICANT DROPPED ITS POLICY IN DECEMBER 1936 AND PLACED ITS
INSURANCE WITH ANOTHER COMPANY.  ON JANUARY 11, 1937, CENTRAL MUTUAL
WAS ADJUDGED A BANKRUPT AND CEASED PAYMENT OF ALL CLAIMS.  IN THE FALL
OF 1937, APPLICANT WAS FORCED TO PAY SEVERAL SUBSTANTIAL DAMAGE CLAIMS
ARISING FROM ACCIDENTS DURING THE PERIOD WHEN ITS INSURANCE POLICY WAS
IN EFFECT WITH CENTRAL MUTUAL.  THESE PAYMENTS SERIOUSLY IMPAIRED ITS
WORKING CAPITAL.  FURTHERMORE, APPLICANT WAS CONFRONTED WITH
APPROXIMATELY 175 ADDITIONAL CLAIMS FOR PERSONAL INJURY AND PROPERTY
DAMAGE.  THESE WERE ESTIMATED AT ABOUT $200,000 AND AROSE DURING THE
PERIOD WHEN APPLICANT WAS INSURED BY CENTRAL MUTUAL.  APPLICANT SETTLED
SOME OF THESE CLAIMS.  IT WAS IMPOSSIBLE, HOWEVER, TO SATISFY THE
DEMANDS OF ALL OF THESE CLAIMANTS.  RECEIVERSHIP FOLLOWED AND ON ITS
HEELS CAME BANKRUPTCY.  THERE IS NOT THE SLIGHTEST EVIDENCE IN THIS
RECORD OF ANY NEGLIGENCE, DERELICTION, OR MISMANAGEMENT ON THE PART OF
APPLICANT.  IT IS UNDISPUTED THAT ITS FAILURE WAS DUE TO THE FAILURE OF
ITS INSURER.  AND THERE IS NO EVIDENCE IN THIS RECORD THAT IT DID NOT
EXERCISE DUE CARE IN THE SELECTION OF THAT INSURER.  IT WOULD INDEED BE
IRONICAL TO CAST A PRESUMPTION AGAINST THE APPLICANT ON THAT SCORE WHEN
THE INSURANCE POLICY PRESUMABLY WAS ACCEPTED BY THE COMMISSION, AND
UNDER ITS REGULATIONS PROMULGATED PURSUANT TO SECS. 211(C) AND 215 OF
THE ACT (49 U.S.C. SECS. 311(C) AND 315) HAD TO BE "APPROVED" BY IT.
FN10 FEDERAL REGISTER (1936) VOL. 1, P. 1163, RULE 1.  AND SEE 49 CODE
OF FEDERAL REGULATIONS, PT. 174, SEC. 174.1. 

AN APPLICANT CARRIES THE BURDEN OF ESTABLISHING HIS RIGHT TO THE
STATUTORY GRANT WHICH IS CONTAINED IN THE "GRANDFATHER" CLAUSE.  ALTON
R. CO. V. UNITED STATES, 315 U.S. 15.  BUT HE SHOULD NOT BE MET AT THE
THRESHOLD WITH A CONCLUSIVE PRESUMPTION AGAINST HIM, UNLESS CONGRESS
HAS CLEARLY INDICATED THAT IN THE CIRCUMSTANCES OF HIS CASE HE HAS NO
RIGHT EVEN TO UNDERTAKE THE BURDEN OF PROOF.  IF CONGRESS HAD DESIRED
TO ELIMINATE ALL APPLICANTS WHOSE CONTINUOUS SERVICE WAS INTERRUPTED BY
BANKRUPTCY OR RECEIVERSHIP, I BELIEVE IT WOULD HAVE SAID SO.  AS STATED
BY COMMISSIONER LEE IN HIS DISSENTING OPINION (10 M.C.C. P. 263):  "IF
SUCH INTERRUPTIONS IN SERVICE ARE TO BE CONSTRUED AS PUTTING AN END TO
'GRANDFATHER' RIGHTS OF CARRIERS, WHOSE APPLICATIONS THEREFOR HAVE NOT
BEEN DETERMINED, THEN, WHERE SUCH A CARRIER GOES INTO RECEIVERSHIP OR
BANKRUPTCY, AND SUCH AN INTERRUPTION OCCURS, IT WOULD BE IMPOSSIBLE FOR
THE CARRIER TO COME OUT OF RECEIVERSHIP AND RESUME OPERATIONS; IT COULD
NOT EFFECT A COMPOSITION OR AN ARRANGEMENT WITH ITS CREDITORS AND
RESUME OPERATIONS; IF A CORPORATION, IT COULD NOT BE REORGANIZED UNDER
THE CORPORATE REORGANIZATION PROVISIONS OF THE BANKRUPTCY ACT, AND
CREDITORS COULD REALIZE NOTHING FROM 'GRANDFATHER' RIGHTS, HOWEVER
VALUABLE."  SUCH A WHOLESALE DESTRUCTION OF OPERATING RIGHTS SHOULD NOT
BE READILY OR LIGHTLY INFERRED.  OPERATING RIGHTS ARE THE VERY LIFE OF
ANY BUSINESS.  WITHOUT THEM THIS BUSINESS CERTAINLY HAS NO MORE THAN
SCRAP VALUE.  NO FINDINGS ON THAT ISSUE BUT INVOKED AN IRREBUTTABLE
PRESUMPTION WHICH WOULD AUTOMATICALLY FORECLOSE IN ALL CASES AN
OPPORTUNITY TO BE HEARD ON THE REAL CAUSE OF THE BANKRUPTCY OR
RECEIVERSHIP. 

FN1  WALTZ TRANSPORTATION, INC., 10 M.C.C. 30, 33. 

FN2  LEWIS MCKAY, 4 M.C.C. 93, 94. 

FN3  EDWARDS MOTOR TRANSIT CO., INC., 2 M.C.C. 73, 74. 

FN4  INTER-CAROLINAS MOTOR BUS CO., 21 M.C.C. 633, 635; WALTER
STAGES, INC., 24 M.C.C. 451, 454. 

FN5  MAGEE TRUCK LINES, INC., 28 M.C.C. 386, 389. 

FN6  BARNES TRUCK CO., INC., 24 M.C.C. 465, 467. 

FN7  H. BRUCE BLACKBURN, 20 M.C.C. 747, 748-749. 

FN8  MOTOR FREIGHT EXPRESS, 26 M.C.C. 374, 375; TRANSAMERICAN FREIGHT
LINES, INC., 28 M.C.C. 493, 502. 

FN9  W.H. TOMPKINS CO., 29 M.C.C. 359, 362. 

FN10  AND SEE FEDERAL REGISTER, OP. CIT., RULE IX; 49 CODE OF FEDERAL
REGULATIONS, PT. 174, SEC. 174.9. 

MR. JUSTICE BLACK AND MR. JUSTICE BYRNES JOIN IN THIS DISSENT. 
..END :
























UNITED STATES V. MALPHURS, 316 U.S. 1 


NO. 558.  ARGUED MARCH 5, 6, 1942.  - DECIDED APRIL 6, 1942.  - 41
F.SUPP.  817, REVERSED. 


ALTHOUGH THIS COURT HAS JURISDICTION UNDER THE CRIMINAL APPEALS ACT TO
PASS UPON THE CORRECTNESS OF THE ORDER OF THE DISTRICT COURT IN THIS
CASE SUSTAINING A DEMURRER TO THE INDICTMENT ON THE SOLE GROUND THAT
SECS. 3 AND 4 OF THE HATCH ACT WERE INAPPLICABLE, THE JUDGMENT IS
VACATED AND THE CAUSE IS REMANDED FOR CONSIDERATION BY THE DISTRICT
COURT OF THE CONTINUED EXISTENCE AND APPLICABILITY OF THE STATUTES,
OTHER THAN THE HATCH ACT, REFERRED TO IN THIS OPINION.  P. 3. 

UNITED STATES V. MALPHURS ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT SUSTAINING A
DEMURRER TO AN INDICTMENT. 

PER CURIAM. 

THIS APPEAL COMES HERE DIRECTLY FROM THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA UNDER THE AUTHORITY OF THE CRIMINAL
APPEALS ACT, 34 STAT. 1246, 18 U.S.C. SEC. 682, AND SEC. 238 OF THE
JUDICIAL CODE AS AMENDED, 43 STAT. 936, 938, 28 U.S.C. SEC. 345.  IN
THE DISTRICT COURT, A DEMURRER TO AN INDICTMENT WAS SUSTAINED ON THE
SOLE GROUND THAT SECS. 3 AND 4 OF THE HATCH ACT, "AN ACT TO PREVENT
PERNICIOUS POLITICAL ACTIVITIES" APPROVED AUGUST 2, 1939, 53 STAT.
1147, SET OUT BELOW,  FN1  WERE INAPPLICABLE TO A STATE PRIMARY.  FN2
NEITHER THE ASSIGNMENT OF ERRORS NOR THE JURISDICTIONAL STATEMENT
SPECIFIES ANY OTHER STATUTE UNDER WHICH THE INDICTMENT MIGHT HAVE BEEN
FOUND. 

DEFENDANTS, EMPLOYEES OF THE WORKS PROGRESS ADMINISTRATION AND A
MUNICIPAL CHIEF OF POLICE, WERE INDICTED UNDER COUNT I FOR THREATENING,
ON MAY 6, 1940, TO DEPRIVE A NAMED PERSON OF EMPLOYMENT, MADE POSSIBLE
BY AN ACT OF CONGRESS, UNLESS HE VOTED FOR AND SUPPORTED IN THE FLORIDA
PRIMARY, DEFENDANTS' CANDIDATES FOR VARIOUS NATIONAL AND STATE OFFICES,
AND UNDER COUNT II FOR PROMISING ON MAY 23RD CONTINUED AND MORE
REMUNERATIVE EMPLOYMENT IF THAT PERSON DID SUPPORT THEM.  IN EACH COUNT
IT WAS ALLEGED THAT:  "FRANK M. STRICKLAND WAS AN EMPLOYEE OF THE WORKS
PROGRESS ADMINISTRATION, AN AGENCY OF THE UNITED STATES OF AMERICA,
WHICH SAID AGENCY WAS ADMINISTERING CERTAIN PROJECTS IN THE SAID COUNTY
AND WAS FURNISHING EMPLOYMENT TO PERSONS ON RELIEF IN SAID COUNTY
PROVIDED FOR AND MADE POSSIBLE IN WHOLE OR IN PART BY ACT OF CONGRESS
OF THE UNITED STATES, TO WIT, THE EMERGENCY RELIEF APPROPRIATION ACT OF
1939." 

IN ITS BRIEF FOR THIS COURT, THE GOVERNMENT CONTENDS FOR THE FIRST
TIME THAT THE LANGUAGE OF THE EMERGENCY RELIEF APPROPRIATION ACT OF
1939, SEC. 30(A), 53 STAT. 927, 937, APPLIES SANCTIONS TO ALLEGATIONS
SUCH AS ARE MADE IN COUNT II OF THE INDICTMENT.  SEE ALSO SEC. 30(B) OF
THAT ACT AND SEC. 3(A) OF THE JOINT RESOLUTION OF FEBRUARY 4, 1939,
MAKING AN ADDITIONAL APPROPRIATION FOR WORK RELIEF FOR THE FISCAL YEAR
ENDING JUNE 30, 1939, 53 STAT. 507, 508.  IT IS OBVIOUS THAT THESE
POSSIBLY APPLICABLE TO THE WHOLE INDICTMENT. 

WHILE WE HAVE JURISDICTION UNDER THE CRIMINAL APPEALS ACT TO PASS
UPON THE CORRECTNESS OF THE ORDER ENTERED BELOW, UNITED STATES V.
NIXON, 235 U.S. 231, WE THINK THAT IT IS ADVISABLE TO VACATE THE
JUDGMENT AND REMAND THE CASE IN ITS ENTIRETY, WITHOUT DISCUSSION OF THE
HATCH ACT.  FN3  WE REMAND THIS CASE FOR CONSIDERATION BY THE DISTRICT
COURT OF THE CONTINUED EXISTENCE AND APPLICABILITY OF THE STATUTES,
OTHER THAN THE HATCH ACT, REFERRED TO IN THIS OPINION.  IT IS SO
ORDERED. 

FN1  "SEC.  3.  IT SHALL BE UNLAWFUL FOR ANY PERSON, DIRECTLY OR
INDIRECTLY, TO PROMISE ANY EMPLOYMENT, POSITION, WORK, COMPENSATION, OR
OTHER BENEFIT, PROVIDED FOR OR MADE POSSIBLE IN WHOLE OR IN PART BY ANY
ACT OF CONGRESS, TO ANY PERSON AS CONSIDERATION, FAVOR, OR REWARD FOR
ANY POLITICAL ACTIVITY OR FOR THE SUPPORT OF OR OPPOSITION TO ANY
CANDIDATE OR ANY POLITICAL PARTY IN ANY ELECTION. 

"SEC. 4.  ...  IT SHALL BE UNLAWFUL FOR ANY PERSON TO DEPRIVE,
ATTEMPT TO DEPRIVE, OR THREATEN TO DEPRIVE, BY ANY MEANS, ANY PERSON OF
ANY EMPLOYMENT, POSITION, WORK, COMPENSATION, OR OTHER BENEFIT PROVIDED
FOR OR MADE POSSIBLE BY ANY ACT OF CONGRESS APPROPRIATING FUNDS FOR
WORK RELIEF OR RELIEF PURPOSES, ON ACCOUNT OF RACE, CREED, COLOR, OR
ANY POLITICAL ACTIVITY, SUPPORT OF, OR OPPOSITION TO ANY CANDIDATE OR
ANY POLITICAL PARTY IN ANY ELECTION." 

FN2  IT IS TO BE NOTED THAT THIS INDICTMENT RELATES TO ACTS OCCURRING
PRIOR TO THE APPROVAL OF THE AMENDMENT OF JULY 19, 1940, 54 STAT. 767. 

FN3  CF. GAINESVILLE V. BROWN-CRUMMER CO., 277 U.S. 54, 60-61. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




SCRIPPS-HOWARD RADIO V. COMM'N, 316 U.S. 4 


NO 508.  ARGUED MARCH 3, 1942.  - DECIDED APRIL 6, 1942. 


WHERE, PURSUANT TO THE PROVISIONS OF SEC. 402(B) OF THE COMMUNICATIONS
ACT OF 1934, AN APPEAL HAS BEEN TAKEN, TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA, FROM AN ORDER OF THE FEDERAL
COMMUNICATIONS COMMISSION, THAT COURT, IN ORDER TO PRESERVE THE STATUS
QUO PENDING APPEAL, HAS POWER TO STAY THE EXECUTION OF THE COMMISSION'S
ORDER FROM WHICH THE APPEAL WAS TAKEN, PENDING THE DETERMINATION OF THE
APPEAL.  P. 11. 

SCRIPPS-HOWARD RADIO, INC. V. FEDERAL COMMUNICATIONS COMMISSION. 

ON CERTIFICATE FROM THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

IN RESPONSE TO A QUESTION CERTIFIED BY THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA IN RESPECT OF AN APPEAL FROM AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION GRANTING PERMISSION TO CHANGE THE
FREQUENCY AND INCREASE THE POWER OF A RADIO STATION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON CERTIFICATE FROM THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA.  JUDICIAL CODE SEC. 239, 28 U.S.C. SEC. 346.  THE
QUESTION CERTIFIED RELATES TO THE POWER OF THE COURT OF APPEALS TO STAY
THE ENFORCEMENT OF AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION
PENDING DETERMINATION OF AN APPEAL TAKEN UNDER SEC. 402(B) OF THE
COMMUNICATIONS ACT OF 1934, 48 STAT. 1064, 1093. 

THE CIRCUMSTANCES WHICH INDUCED THE COURT TO CERTIFY THE QUESTION ARE
THESE:  ON OCTOBER 10, 1939, THE COMMISSION GRANTED WITHOUT HEARING THE
APPLICATION OF WCOL, INC., LICENSEE OF STATION WCOL, COLUMBUS, OHIO,
FOR A CONSTRUCTION PERMIT TO CHANGE ITS FREQUENCY FROM 1210 TO 1200
KILOCYCLES AND TO INCREASE ITS POWER FROM 100 TO 250 WATTS.  THE
APPELLANT, SCRIPPS-HOWARD RADIO, INC., WHICH IS THE LICENSEE OF STATION
WCPO, CINCINNATI, OHIO, OPERATING ON A FREQUENCY OF 1200 KILOCYCLES
WITH POWER OF 250 WATTS, FILED A PETITION FOR "HEARING OR REHEARING"
REQUESTING THE COMMISSION TO VACATE ITS PREVIOUS ORDER AND SET THE WCOL
APPLICATION FOR HEARING.  THE COMMISSION DENIED THIS PETITION ON MARCH
29, 1940, AND AN APPEAL FOLLOWED.  IN ITS STATEMENT OF "REASONS FOR
APPEAL," THE APPELLANT CLAIMED THAT THE COMMISSION COULD NOT LAWFULLY
GRANT THE WCOL APPLICATION WITHOUT HEARING; THAT IN GRANTING THE
APPLICATION THE COMMISSION DEPARTED FROM ITS RULES AND STANDARDS OF
GOOD ENGINEERING PRACTICE; THAT THE APPELLANT WAS ENTITLED TO A HEARING
IN ORDER TO SHOW THAT THE COMMISSION'S ACTION DID NOT SERVE THE PUBLIC
INTEREST SINCE IT WOULD RESULT IN MATERIALLY REDUCING THE COVERAGE OF
STATION WCPO AND THEREBY DEPRIVE A SUBSTANTIAL NUMBER OF LISTENERS OF
"THE ONLY LOCAL REGIONAL NON-NETWORK SERVICE" AVAILABLE TO THEM; AND
THAT IN GRANTING THE WCOL APPLICATION WITHOUT HEARING, THE COMMISSION
VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

THE APPELLANT ASKED THE COURT OF APPEALS TO STAY THE COMMISSION'S
ORDER PENDING THE DISPOSITION OF ITS APPEAL.  EVEN THOUGH THE COURT
"HAD CONSISTENTLY OVER A LONG PERIOD OF YEARS, AND WITHOUT OBJECTION ON
THE PART OF THE COMMISSION, ISSUED STAY ORDERS" IN CASES WHERE SUCH
ORDERS WERE FOUND TO BE NECESSARY, THE COMMISSION OPPOSED THE ISSUANCE
OF A STAY ORDER IN THIS CASE ON THE GROUND THAT THE COURT WAS WITHOUT
POWER TO GRANT A STAY.  THE APPLICATION WAS HEARD BEFORE THE COURT
SITTING WITH THREE JUDGES, WHICH, WITH ONE JUDGE DISSENTING, UPHELD THE
COMMISSION'S CONTENTION.  A MOTION FOR REHEARING BEFORE ALL SIX MEMBERS
OF THE COURT WAS GRANTED.  THE JUDGES BEING EQUALLY DIVIDED ON THE
QUESTION OF THE COURT'S POWER TO GRANT A STAY, THE FOLLOWING QUESTION
WAS CERTIFIED TO US: 

"WHERE, PURSUANT TO THE PROVISIONS OF SECTION 402(B) OF THE
COMMUNICATIONS ACT OF 1934, AN APPEAL HAS BEEN TAKEN, TO THE UNITED
STATES COURT OF APPEALS, FROM AN ORDER OF THE FEDERAL COMMUNICATIONS
COMMISSION, DOES THE COURT, IN ORDER TO PRESERVE THE STATUS QUO PENDING
APPEAL, HAVE POWER TO STAY THE EXECUTION OF THE COMMISSION'S ORDER FROM
WHICH THE APPEAL WAS TAKEN, PENDING THE DETERMINATION OF THE APPEAL?" 

THE COMMISSION SUGGESTS THAT THE CERTIFICATE SHOULD BE DISMISSED
BECAUSE OF THE GENERALITY OF THE QUESTION.  LOWDEN V. NORTHWESTERN NAT.
BANK, 298 U.S. 160.  READ IN THE LIGHT OF THE PRELIMINARY STATEMENT
CERTIFYING THE FACTS WHICH PRESENTED THE QUESTION, HILL V. WAMPLER, 298
U.S. 460, 464, THE QUESTION IS LIMITED TO THE TYPE OF ORDER MADE BY THE
COMMISSION IN THIS CASE.  IT IS THEREFORE SUFFICIENTLY SPECIFIC. 

THE COMMUNICATIONS ACT OF 1934 IS A HYBRID.  BY THAT ACT CONGRESS
ESTABLISHED A COMPREHENSIVE SYSTEM FOR THE REGULATION OF COMMUNICATION
BY WIRE AND RADIO.  TO SECURE EFFECTIVE EXECUTION OF ITS POLICY OF
MAKING AVAILABLE "A RAPID, EFFICIENT, NATION-WIDE, AND WORLD-WIDE WIRE
AND RADIO COMMUNICATION SERVICE WITH ADEQUATE FACILITIES AT REASONABLE
CHARGES," CONGRESS CREATED A NEW AGENCY, THE FEDERAL COMMUNICATIONS
COMMISSION, TO WHICH IT ENTRUSTED AUTHORITY PREVIOUSLY EXERCISED BY
SEVERAL OTHER AGENCIES.  UNDER THE RADIO ACT OF 1927, 44 STAT. 1162,
THE FEDERAL RADIO COMMISSION HAD BROAD POWERS OVER THE LICENSING AND
REGULATION OF RADIO FACILITIES.  THE MANN-ELKINS ACT OF 1910, 36 STAT.
539, GAVE THE INTERSTATE COMMERCE COMMISSION GENERAL REGULATORY
AUTHORITY OVER TELEPHONE AND TELEGRAPH CARRIERS.  IN ADDITION, THE
POSTMASTER GENERAL WAS EMPOWERED, UNDER THE POST ROADS ACT OF 1866, 14
STAT. 221, TO FIX RATES ON GOVERNMENT TELEGRAMS.  FN1  THE
COMMUNICATIONS ACT OF 1934 WAS DESIGNED TO CENTRALIZE THIS SCATTERED
REGULATORY AUTHORITY IN ONE AGENCY.  SEE MESSAGE FROM THE PRESIDENT TO
CONGRESS, FEBRUARY 26, 1934, SEN. DOC. NO. 144, 73D CONG., 2D SESS.;
SEN. REP. NO. 781, 73D CONG., 2D SESS., P. 1; H. REP. NO. 1850, 73D
CONG., 2D SESS., PP. 3-4. 

THE PROVISIONS FOR JUDICIAL REVIEW IN THE ACT OF 1934 REFLECT ITS
MIXED ORIGINS.  SECTION 402(A) MAKES THE PROVISIONS OF THE URGENT
DEFICIENCIES ACT OF OCTOBER 22, 1913, 38 STAT. 208, 219, PERTAINING TO
JUDICIAL REVIEW OF ORDERS OF THE INTERSTATE COMMERCE COMMISSION,
APPLICABLE TO "SUITS TO ENFORCE, ENJOIN, SET ASIDE, ANNUL, OR SUSPEND
ANY ORDER OF THE COMMISSION UNDER THIS ACT (EXCEPT ANY ORDER OF THE
COMMISSION GRANTING OR REFUSING AN APPLICATION FOR A CONSTRUCTION
PERMIT FOR A RADIO STATION, OR FOR A RADIO STATION LICENSE, OR FOR
RENEWAL OF AN EXISTING RADIO STATION LICENSE, OR FOR MODIFICATION OF AN
EXISTING RADIO STATION LICENSE)."  48 STAT. 1064, 1093.  THE URGENT
DEFICIENCIES ACT, WHICH IS THUS INCORPORATED IN SEC. 402(A) OF THE
COMMUNICATIONS ACT OF 1934, PROVIDES FOR REVIEW IN A SPECIALLY
CONSTITUTED DISTRICT COURT, WITH DIRECT APPEAL TO THIS COURT.  THAT ACT
AUTHORIZES THE DISTRICT COURT, IN CASES "WHERE IRREPARABLE DAMAGE WOULD
OTHERWISE ENSUE TO THE PETITIONER," TO ALLOW A TEMPORARY STAY OF THE
ORDER UNDER REVIEW, SUBJECT TO SPECIFIED SAFEGUARDS.  38 STAT. 208,
220. 

OF THE ORDERS EXCEPTED FROM SEC. 402(A).  IT GIVES AN APPEAL "FROM
DECISIONS OF THE COMMISSION TO THE COURT OF APPEALS OF THE DISTRICT OF
COLUMBIA IN ANY OF THE FOLLOWING CASES:  (1) BY ANY APPLICANT FOR A
CONSTRUCTION PERMIT FOR A RADIO STATION, OR FOR A RADIO STATION
LICENSE, OR FOR RENEWAL OF AN EXISTING RADIO STATION LICENSE, OR FOR
MODIFICATION OF AN EXISTING RADIO STATION LICENSE, WHOSE APPLICATION IS
REFUSED BY THE COMMISSION.  (2) BY ANY OTHER PERSON AGGRIEVED OR WHOSE
INTERESTS ARE ADVERSELY AFFECTED BY ANY DECISION OF THE COMMISSION
GRANTING OR REFUSING SUCH APPLICATION."  48 STAT. 1064, 1093.  THIS
AMENDED IN 1930, 46 STAT. 844, THE RELEVANT PORTIONS OF WHICH ARE SET
FORTH IN THE MARGIN.  FN2  SEE SEN. REP. NO. 781, 73D CONG., 2D SESS.,
P. 9; H. REPORT NO. 1918, 73D CONG., 2D SESS., PP. 49-50; REMARKS OF
SENATOR DILL, IN CHARGE OF THE MEASURE IN THE SENATE, 78 CONG. REC.
8825, AND OF REPRESENTATIVE RAYBURN, WHO OCCUPIED THE SAME ROLE IN THE
HOUSE, 78 CONG. REC. 10314. 

THUS, IN BOTH THE RADIO ACT OF 1927 AND THE COMMUNICATIONS ACT OF
1934, ORDERS GRANTING OR DENYING APPLICATIONS FOR CONSTRUCTION PERMITS
OR STATION LICENSES AND FOR RENEWAL OR MODIFICATION OF LICENSES WERE
MADE REVIEWABLE BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 
FN3  AND WITH RESPECT TO SUCH APPEALS, BOTH SEC. 16 OF THE RADIO ACT
AND SEC. 402(B) OF THE COMMUNICATIONS ACT WERE SILENT WITH RESPECT TO
THE POWER OF THE COURT OF APPEALS TO STAY ORDERS PENDING APPEAL.  IT IS
UPON THIS SILENCE IN THE COMMUNICATIONS ACT THAT THE COMMISSION BASES
ITS CONTENTION, MADE FOR THE FIRST TIME WHEN THIS LITIGATION AROSE IN
1940, THAT THE COURT IS WITHOUT SUCH POWER. 

NO COURT CAN MAKE TIME STAND STILL.  THE CIRCUMSTANCES SURROUNDING A
CONTROVERSY MAY CHANGE IRREVOCABLY DURING THE PENDENCY OF AN APPEAL,
DESPITE ANYTHING A COURT CAN DO.  BUT WITHIN THESE LIMITS IT IS
REASONABLE THAT AN APPELLATE COURT SHOULD BE ABLE TO PREVENT
IRREPARABLE INJURY TO THE PARTIES OR TO THE PUBLIC RESULTING FROM THE
PREMATURE ENFORCEMENT OF A DETERMINATION WHICH MAY LATER BE FOUND TO
HAVE BEEN WRONG.  IT HAS ALWAYS BEEN HELD, THEREFORE, THAT AS PART OF
ITS TRADITIONAL EQUIPMENT FOR THE ADMINISTRATION OF JUSTICE,  FN4  A
FEDERAL COURT CAN STAY THE ENFORCEMENT OF A JUDGMENT PENDING THE
OUTCOME OF AN APPEAL.  IN RE CLAASEN, 140 U.S. 200; IN RE MCKENZIE, 180
U.S. 536. 

GENERALLY SPEAKING, JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS IS
LIMITED TO DETERMINING WHETHER ERRORS OF LAW HAVE BEEN COMMITTED. 
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 139-40. 
BECAUSE OF HISTORICAL DIFFERENCES IN THE RELATIONSHIP BETWEEN
ADMINISTRATIVE BODIES AND REVIEWING COURTS AND THAT BETWEEN LOWER AND
UPPER COURTS, A COURT OF REVIEW EXHAUSTS ITS POWER WHEN IT LAYS BARE A
MISCONCEPTION OF LAW AND COMPELS CORRECTION.  FEDERAL COMMUNICATIONS
COMMISSION V. POTTSVILLE BROADCASTING CO., 309 U.S. 134, 144-45.  IF
THE ADMINISTRATIVE AGENCY HAS COMMITTED ERRORS OF LAW FOR THE
CORRECTION OF WHICH THE LEGISLATURE HAS PROVIDED APPROPRIATE RESORT TO
THE COURTS, SUCH JUDICIAL REVIEW WOULD BE AN IDLE CEREMONY IF THE
SITUATION WERE IRREPARABLY CHANGED BEFORE THE CORRECTION COULD BE
MADE.  THE EXISTENCE OF POWER IN A REVIEWING COURT TO STAY THE
ENFORCEMENT OF AN ADMINISTRATIVE ORDER DOES NOT MEAN, OF COURSE, THAT
ITS EXERCISE SHOULD BE WITHOUT REGARD TO THE DIVISION OF FUNCTION WHICH
THE LEGISLATURE HAS MADE BETWEEN THE ADMINISTRATIVE BODY AND THE COURT
OF REVIEW.  "A STAY IS NOT A MATTER OF RIGHT, EVEN IF IRREPARABLE
INJURY MIGHT OTHERWISE RESULT TO THE APPELLANT.  IN RE HABERMAN
MANUFACTURING CO., 147 U.S. 525.  IT IS AN EXERCISE OF JUDICIAL
DISCRETION.  THE PROPRIETY OF ITS ISSUE IS DEPENDENT UPON THE
CIRCUMSTANCES OF THE PARTICULAR CASE."  VIRGINIAN RY. CO. V. UNITED
STATES, 272 U.S. 658, 672-73; SEE MERCHANTS WAREHOUSE CO. V. UNITED
STATES, 283 U.S. 501, 513-14. 

THESE CONTROLLING CONSIDERATIONS COMPEL THE ASSUMPTION THAT CONGRESS
WOULD NOT, WITHOUT CLEARLY EXPRESSING SUCH A PURPOSE, DEPRIVE THE COURT
OF APPEALS OF ITS CUSTOMARY POWER TO STAY ORDERS UNDER REVIEW.  IT IS
URGED THAT SUCH A MANIFESTATION APPEARS IN THE PROVISIONS FOR JUDICIAL
REVIEW CONTAINED IN THE COMMUNICATIONS ACT OF 1934.  SPECIFICALLY, THE
COMMISSION CONTENDS THAT SINCE SEC. 402(A) INCORPORATES THE PROVISIONS
OF THE URGENT DEFICIENCIES ACT OF 1913 WHICH EXPLICITLY AUTHORIZE AND
REGULATE THE ISSUANCE OF STAY ORDERS, THE OMISSION OF ANY REFERENCE IN
SEC. 402(B) TO A POWER TO STAY ORDERS UNDER REVIEW REFLECTS A
DELIBERATE CONGRESSIONAL CHOICE TO DEPRIVE THE COURT OF APPEALS OF THIS
POWER. 

THE SEARCH FOR SIGNIFICANCE IN THE SILENCE OF CONGRESS IS TOO OFTEN
THE PURSUIT OF A MIRAGE.  WE MUST BE WARY AGAINST INTERPOLATING OUR
NOTIONS OF POLICY IN THE INTERSTICES OF LEGISLATIVE PROVISIONS.  HERE
CONGRESS SAID NOTHING ABOUT THE POWER OF THE COURT OF APPEALS TO ISSUE
STAY ORDERS UNDER SEC. 402(B).  BUT DENIAL OF SUCH POWER IS NOT TO BE
INFERRED MERELY BECAUSE CONGRESS FAILED SPECIFICALLY TO REPEAT THE
GENERAL GRANT OF AUXILIARY POWERS TO THE FEDERAL COURTS.  THE
COMMISSION ARGUES THAT THE SILENCE OF CONGRESS, IN VIEW OF THE
LEGISLATIVE HISTORY OF THE ACT AND THE NATURE OF THE ORDERS REVIEWABLE
UNDER THE ACT, QUALIFIES THIS GENERAL AUTHORITY AND IS AS COMMANDING AS
IF CONGRESS HAD EXPRESSLY WITHHELD FROM THE COURT OF APPEALS THE POWER
TO STAY ORDERS APPEALED UNDER SEC. 402(B). 

THE LEGISLATIVE HISTORY CAN FURNISH NO SUPPORT FOR THIS CONTENTION. 
NEITHER THE COMMITTEE REPORTS NOR THE HEARINGS NOR THE DEBATES CONTAIN
ANY REFERENCE TO THE POWER TO STAY COMMISSION ORDERS ON APPEAL. 
SIGNIFICANCE IS FOUND IN H.R. 7716, 72D CONGRESS, A BILL WHICH WAS
PASSED BY BOTH HOUSES IN 1933 BUT WHICH FAILED OF ENACTMENT BECAUSE OF
A POCKET VETO.  THAT BILL PROPOSED TO AMEND SEC. 16 OF THE RADIO ACT OF
1927 SO AS TO VEST CONCURRENT JURISDICTION (WITH THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA) OF REVOCATION CASES IN THE CIRCUIT COURTS
OF APPEALS, RATHER THAN IN THE DISTRICT COURTS.  THE BILL ALSO PROVIDED
THAT THE REVIEWING COURT, WHETHER A CIRCUIT COURT OF APPEALS OR THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, COULD ENTER A STAY ORDER
"UPON THE GIVING OF A BOND BY THE PARTY APPLYING FOR THE STAY IN SUCH
AMOUNT AND WITH SUCH TERMS AND CONDITIONS" AS THE COURT DEEMED PROPER. 

IT IS SUGGESTED THAT IF CONGRESS HAD INTENDED IN THE ACT OF 1934 TO
AUTHORIZE THE COURT OF APPEALS TO ISSUE STAY ORDERS IN APPEALS UNDER
SEC. 402(B), IT WOULD NOT HAVE REMAINED SILENT WHEN ONLY THE YEAR
BEFORE IT HAD ATTEMPTED TO ENACT INTO LAW A SPECIFIC PROVISION
CONFERRING THAT POWER.  BUT H.R. 7716 AND THE COMMUNICATIONS ACT OF
1934 WERE NOT PARALLEL LEGISLATIVE PROPOSALS.  THE FORMER WAS NOT A
COMPREHENSIVE LEGISLATIVE SCHEME FOR THE UNIFICATION OF FEDERAL
REGULATORY AUTHORITY OVER COMMUNICATIONS.  IT PROPOSED MERELY TO AMEND
THE RADIO ACT OF 1927 IN SEVERAL MINOR PARTICULARS.  SEE H. REP. NO.
221, 72D CONG., 1ST SESS., P. 7; SEN. REP. NO. 564, 72D CONG., 1ST
SESS., P. 7; SEN. REP. NO. 1004, 72D CONG., 2D SESS., P. 9.  THE
ENACTMENT OF THE COMMUNICATIONS ACT OF 1934, HOWEVER, CAME AFTER A
MESSAGE TO CONGRESS FROM THE PRESIDENT ON FEBRUARY 26, 1934,
RECOMMENDING THE CREATION OF A SINGLE AUTHORITY OVER COMMUNICATION BY
WIRE AND RADIO.  SEN. DOC. NO. 144, 73D CONG., 2D SESS.  EARLIER IN
1934 AN INTERDEPARTMENTAL COMMITTEE HAD MADE A STUDY OF THE ENTIRE
COMMUNICATIONS SITUATION.  EXTENSIVE PUBLIC HEARINGS ON THE QUESTION OF
REGULATING THE WHOLE FIELD OF COMMUNICATIONS WERE HELD BY BOTH THE
SENATE AND HOUSE COMMITTEES ON INTERSTATE COMMERCE.  IT IS OBVIOUS,
THEREFORE, THAT WHAT CONGRESS UNDERTOOK TO DO BY THE COMMUNICATIONS ACT
OF 1934 WAS ENTIRELY DIFFERENT FROM WHAT IT TRIED TO DO THE PREVIOUS
YEAR IN H.R. 7716. 

WE ARE TOLD THAT IN DRAFTING SEC. 402 CONGRESS HAD BEFORE IT AND
RELIED EXTENSIVELY UPON H.R. 7716, AND REFERENCE IS MADE TO THE
CITATIONS TO THAT BILL IN THE STATEMENT OF THE HOUSE MANAGERS.  H. REP.
NO. 1918, 73D CONG., 2D SESS., PP. 47-49.  BUT WHATEVER RELIANCE WAS
PLACED UPON H.R. 7716 BY THE FRAMERS OF THE 1934 LEGISLATION WAS
WITHOUT RELATION TO ITS PROVISIONS FOR JUDICIAL REVIEW.  FOR IN THAT
SAME STATEMENT (P. 47) IT IS SAID THAT THE "PROVISIONS OF THE RADIO ACT
OF 1927 RELATING TO JUDICIAL REVIEW HAVE BEEN INCLUDED" IN THE BILL. 
AND, AS HAS PREVIOUSLY BEEN NOTED, EVEN THOUGH THE RADIO ACT OF 1927
CONTAINED NO PROVISIONS DEALING WITH THE AUTHORITY OF THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA TO STAY ORDERS OF THE COMMISSION
ON APPEAL, THE COURT HAD BEEN ISSUING STAYS AS A MATTER OF COURSE
WHEREVER THEY WERE FOUND TO BE APPROPRIATE, WITHOUT OBJECTION BY THE
COMMISSION.  BOSTON BROADCASTING CO. V. FEDERAL RADIO COMMISSION, 62
APP. D.C. 299, 67 F.2D 505, DECIDED JUNE 19, 1933. 

IT IS INDISPUTABLE THAT, AT LEAST SINCE 1930, THE COURT OF APPEALS
HAS BEEN STAYING ORDERS BOTH OF THE FEDERAL RADIO COMMISSION, UNDER
SEC. 16 OF THE RADIO ACT OF 1927, AND OF THE FEDERAL COMMUNICATIONS
COMMISSION, UNDER SEC. 402(B) OF THE COMMUNICATIONS ACT OF 1934,
WHENEVER STAYS WERE REGARDED AS NECESSARY.  TO BE SURE, IN ONLY ONE
CASE, THE BOSTON BROADCASTING DECISION, SUPRA, DID THE COURT OF APPEALS
EVEN REFER TO THE GRANTING OF A STAY ORDER.  THE EXPLANATION IS NOT
HARD TO FIND.  THE POWER TO STAY WAS SO FIRMLY IMBEDDED IN OUR JUDICIAL
SYSTEM, SO CONSONANT WITH THE HISTORIC PROCEDURES OF FEDERAL APPELLATE
COURTS, THAT THERE WAS NO NECESSITY FOR THE COURT OF APPEALS TO JUSTIFY
ITS SETTLED PRACTICE.  FN5 

THE CONSIDERATIONS OF POLICY WHICH ARE INVOKED ARE AS FRAGILE AS THE
LEGISLATIVE MATERIALS ARE INAPPOSITE.  IT IS SAID THAT THE NATURE OF
THE ORDERS REVIEWABLE UNDER SEC. 402(B) MAKES THE GRANT OF A STAY ORDER
MANIFESTLY INAPPROPRIATE SINCE A STAY WOULD IN EFFECT INVOLVE THE
JUDICIAL EXERCISE OF AN ADMINISTRATIVE FUNCTION.  AN EXAMPLE IS ADDUCED
OF AN APPEAL FROM AN ORDER DENYING AN APPLICATION FOR A CONSTRUCTION
PERMIT OR A STATION LICENSE, OR FOR MODIFICATION OR RENEWAL OF A
LICENSE.  OF COURSE, NO COURT CAN GRANT AN APPLICANT AN AUTHORIZATION
WHICH THE COMMISSION HAS REFUSED.  NO ORDER THAT THE COURT OF APPEALS
COULD MAKE WOULD ENABLE AN APPLICANT TO GO ON THE AIR WHEN THE
COMMISSION HAS DENIED HIM A LICENSE TO DO SO.  A STAY OF AN ORDER
DENYING AN APPLICATION WOULD IN THE NATURE OF THINGS STAY NOTHING.  IT
COULD NOT OPERATE AS AN AFFIRMATIVE AUTHORIZATION OF THAT WHICH THE
COMMISSION HAS REFUSED TO AUTHORIZE.  BUT THIS IS NO REASON FOR DENYING
THE COURT THE POWER TO ISSUE A STAY IN A SITUATION WHERE THE FUNCTION
OF THE STAY IS TO AVOID IRREPARABLE INJURY TO THE PUBLIC INTEREST
SOUGHT TO BE VINDICATED BY THE APPEAL. 

THE COMMUNICATIONS ACT OF 1934 DID NOT CREATE NEW PRIVATE RIGHTS. 
THE PURPOSE OF THE ACT WAS TO PROTECT THE PUBLIC INTEREST IN
COMMUNICATIONS.  BY SEC. 402(B)(2) CONGRESS GAVE THE RIGHT OF APPEAL TO
PERSONS "AGGRIEVED OR WHOSE INTERESTS ARE ADVERSELY AFFECTED" BY
COMMISSION ACTION.  48 STAT. 1064, 1093.  BUT THESE PRIVATE LITIGANTS
HAVE STANDING ONLY AS REPRESENTATIVES OF THE PUBLIC INTEREST.  FEDERAL
COMMUNICATIONS COMMISSION V. SANDERS RADIO STATION, 309 U.S. 470, 477. 
COMPARE NATIONAL LICORICE CO. V. LABOR BOARD, 309 U.S. 350, 362-63. 
THAT A COURT IS CALLED UPON TO ENFORCE PUBLIC RIGHTS AND NOT THE
INTERESTS OF PRIVATE PROPERTY DOES NOT DIMINISH ITS POWER TO PROTECT
SUCH RIGHTS.  "COURTS OF EQUITY MAY, AND FREQUENTLY DO, GO MUCH FARTHER
BOTH TO GIVE AND WITHHOLD RELIEF IN FURTHERANCE OF THE PUBLIC INTEREST
THAN THEY ARE ACCUSTOMED TO GO WHEN ONLY PRIVATE INTERESTS ARE
INVOLVED."  VIRGINIAN RY. CO. V. FEDERATION, 300 U.S. 515, 552.  AN
HISTORIC PROCEDURE FOR PRESERVING RIGHTS DURING THE PENDENCY OF AN
APPEAL IS NO LESS APPROPRIATE - UNLESS CONGRESS HAS CHOSEN TO WITHDRAW
IT - BECAUSE THE RIGHTS TO BE VINDICATED ARE THOSE OF THE PUBLIC AND
NOT OF THE PRIVATE LITIGANTS.  UNLESS CONGRESS EXPLICITLY DISCLOSES
SUCH AN INTENTION WE SHOULD NOT LIGHTLY ATTRIBUTE TO IT A DESIRE TO
WITHHOLD FROM A REVIEWING COURT THE POWER TO SAVE THE PUBLIC INTEREST
FROM INJURY OR DESTRUCTION WHILE AN APPEAL IS BEING HEARD.  TO DO SO
WOULD STULTIFY THE PURPOSE OF CONGRESS TO UTILIZE THE COURTS AS A MEANS
FOR VINDICATING THE PUBLIC INTEREST.  COURTS AND ADMINISTRATIVE
AGENCIES ARE NOT TO BE REGARDED AS COMPETITORS IN THE TASK OF
SAFEGUARDING THE PUBLIC INTEREST.  UNITED STATES V. MORGAN, 307 U.S.
183, 190-91; FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE
BROADCASTING CO., 309 U.S. 134.  COURTS NO LESS THAN ADMINISTRATIVE
BODIES ARE AGENCIES OF GOVERNMENT.  BOTH ARE INSTRUMENTS FOR REALIZING
PUBLIC PURPOSES. 

IT IS URGED THAT THE ORDERS REVIEWABLE UNDER SEC. 402(A), AS TO WHICH
THE POWER TO GRANT STAYS IS UNDENIABLE, ARE INTRINSICALLY DIFFERENT
FROM THOSE REVIEWABLE UNDER SEC. 402(B).  BUT WHILE THE TWO SECTIONS
ROUTE APPEALS TO DIFFERENT COURTS, THE DIFFERENTIATION WAS IN LARGE
MEASURE THE PRODUCT OF CONGRESSIONAL SOLICITUDE FOR THE CONVENIENCE OF
LITIGANTS.  IT HAD NO RELATION TO THE SCOPE OF THE JUDICIAL FUNCTION
WHICH THE COURTS WERE CALLED UPON TO PERFORM.  FOR EXAMPLE, IF THE
COMMISSION ON ITS OWN MOTION MODIFIES A STATION LICENSE, REVIEW IS HAD
UNDER SEC. 402(A) IN THE APPROPRIATE DISTRICT COURT.  HOWEVER, IF IT
GRANTS AN APPLICATION FOR MODIFICATION OF A LICENSE, AN APPEAL LIES
UNDER SEC. 402(B) TO THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA.  BOTH CASES GIVE RISE TO THE SAME KIND OF ISSUES ON APPEAL. 
BOTH ORDERS ARE EQUALLY SUSCEPTIBLE OF BEING STAYED ON APPEAL.  AS THE
LEGISLATIVE HISTORY OF THE ACT PLAINLY SHOWS, CONGRESS PROVIDED THE TWO
ROADS TO JUDICIAL REVIEW ONLY TO SAVE A LICENSEE THE INCONVENIENCE OF
LITIGATING AN APPEAL IN WASHINGTON IN SITUATIONS WHERE THE COMMISSION'S
ORDER AROSE OUT OF A PROCEEDING NOT INSTITUTED BY THE LICENSEE.  FN6 

JUDGED BY ITS OWN TERMS, ITS HISTORY, AND THE PRACTICE UNDER IT, THE
COMMUNICATIONS ACT OF 1934 AFFORDS NO WARRANT FOR DEPRIVING THE COURT
OF APPEALS OF THE CONVENTIONAL POWER OF AN APPELLATE COURT TO STAY THE
ENFORCEMENT OF AN ORDER PENDING THE DETERMINATION OF AN APPEAL
CHALLENGING ITS VALIDITY.  INDIRECT LIGHT IS SOMETIMES CAST UPON
LEGISLATION BY PROVISIONS DEALING WITH THE SAME PROBLEM IN RELATED
ENACTMENTS.  NO SUCH LIGHT IS SHED HERE.  THE NUMEROUS LAWS IN WHICH
CONGRESS HAS ESTABLISHED ADMINISTRATIVE AGENCIES FOR THE EXERCISE OF
ITS REGULATORY POWERS DO NOT DISCLOSE ANY GENERAL LEGISLATIVE POLICY
REGARDING THE POWER TO STAY ADMINISTRATIVE ORDERS PENDING REVIEW.  SOME
STATUTES ARE WHOLLY SILENT; FN7  SOME TURN A COURT REVIEW INTO AN
AUTOMATIC STAY; FN8  SOME PROVIDE THAT THE COMMENCEMENT OF A SUIT SHALL
NOT OPERATE AS A STAY UNLESS THE COURT SPECIFICALLY SO PROVIDES; FN9
SOME AUTHORIZE THE REVIEWING COURT TO GRANT A STAY WHERE NECESSARY. 
FN10 SIGNIFICANTLY, THE RECENT EMERGENCY PRICE CONTROL ACT OF 1942, 56
STAT. 23, EXPLICITLY DENIES THE POWER OF THE REVIEWING COURT TO ENJOIN
ENFORCEMENT OF THE ADMINISTRATIVE ORDERS. 

THE VARIOUS ENACTMENTS IN WHICH THE STAYING POWER IS MADE EXPLICIT,
AS WELL AS THE STATUTES THAT ARE SILENT ABOUT IT, AFFORD DEBATING
POINTS BUT NO RELIABLE AIDS IN CONSTRUING THE ACT BEFORE US. ONE THING
IS CLEAR.  WHERE CONGRESS WISHED TO DEPRIVE THE COURTS OF THIS HISTORIC
POWER, IT KNEW HOW TO USE APT WORDS - ONLY ONCE HAS IT DONE SO AND IN A
STATUTE BORN OF THE EXIGENCIES OF WAR. 

WE CONCLUDE THAT CONGRESS BY SEC. 402(B) OF THE COMMUNICATIONS ACT OF
1934 HAS NOT DEPRIVED THE COURT OF APPEALS OF THE POWER TO STAY - A
POWER AS OLD AS THE JUDICIAL SYSTEM OF THE NATION.  WE DO NOT OF COURSE
GO BEYOND THE QUESTION PUT TO US.  WE MERELY RECOGNIZE THE EXISTENCE OF
THE POWER TO GRANT A STAY.  WE ARE NOT CONCERNED HERE WITH THE CRITERIA
WHICH SHOULD GOVERN THE COURT IN EXERCISING THAT POWER.  NOR DO WE IN
ANY WAY IMPLY THAT A STAY WOULD OR WOULD NOT BE WARRANTED UPON THE
SHOWING MADE BY THE APPELLANT IN THIS CASE. 

THE QUESTION CERTIFIED TO US IS ANSWERED IN THE AFFIRMATIVE.  SO
ORDERED. 

FN1  A SUMMARY OF THE AUTHORITY VESTED IN THE FEDERAL RADIO
COMMISSION, THE INTERSTATE COMMERCE COMMISSION, AND THE POSTMASTER
GENERAL, AND OF THE EXTENT TO WHICH SUCH AUTHORITY WAS ACTUALLY
EXERCISED, IS CONTAINED IN APPENDIX A, HISTORICAL BACKGROUND OF THE
COMMUNICATIONS ACT OF 1934, OF THE MONOGRAPH OF THE ATTORNEY GENERAL'S
COMMITTEE ON ADMINISTRATIVE PROCEDURE DEALING WITH THE FEDERAL
COMMUNICATIONS COMMISSION, SEN. DOC. NO. 186, 76TH CONG., 3D SESS., PT.
3; SEE ALSO HERRING AND GROSS, TELECOMMUNICATIONS, PP. 210-45. 

FN2  "ANY APPLICANT FOR A CONSTRUCTION PERMIT, FOR A STATION LICENSE,
OR FOR THE RENEWAL OR MODIFICATION OF AN EXISTING STATION LICENSE WHOSE
APPLICATION IS REFUSED BY THE LICENSING AUTHORITY SHALL HAVE THE RIGHT
TO APPEAL FROM SAID DECISION TO THE COURT OF APPEALS OF THE DISTRICT OF
COLUMBIA.  ...  "  44 STAT. 1162, 1169. 

FN3  WHERE THE COMMISSION REVOKES A STATION LICENSE OR MODIFIES A
LICENSE ON ITS OWN MOTION, JUDICIAL REVIEW IS AVAILABLE ONLY UNDER SEC.
402(A) OF THE COMMUNICATIONS ACT.  THE REASON FOR THIS DIFFERENTIATION
APPEARS IN THE FOLLOWING SATEMENT OF SENATOR DILL, WHO STEERED THE BILL
IN THE SENATE: 

"I DESIRE TO CALL ATTENTION TO WHAT I THINK IS AN IMPORTANT FACT TO
CONSIDER IN THIS APPEAL PROVISION.  THOSE OWNERS OF RADIO BROADCASTING
STATIONS LIVING LONG DISTANCES FROM THE DISTRICT OF COLUMBIA SHOULD NOT
BE REQUIRED TO COME TO WASHINGTON TO PROSECUTE AN APPEAL FROM A
DECISION FOR WHICH THEY WERE NOT RESPONSIBLE.  WHEN I SAY 'WERE NOT
RESPONSIBLE' I MEAN A DECISION WHICH WAS GRANTED AGAINST THEM OR
AFFECTING THEM WHEN THEY DID NOT BRING THE CASE INTO COURT.  ...  SO WE
PROVIDE THAT WHERE THE DECISIONS OF THE COMMISSION ARE MADE IN CASES
WHEREIN THE STATIONS TOOK NO PART IN BEGINNING THE SUITS, APPEAL MAY BE
TAKEN IN THE THREE-JUDGE DISTRICT COURTS IN THE JURISDICTIONS WHERE THE
STATIONS ARE LOCATED.  BUT IN THE CASE WHERE THE APPLICANT FOR THE
LICENSE OR THE PERMIT, OR WHATEVER IT MAY BE, COMES TO THE COMMISSION
AND ASKS FOR A CHANGE IN HIS LICENSE OR ASKS FOR A NEW LICENSE, OR ASKS
FOR SOMETHING TO BE DONE BY THE COMMISSION, THEN IF THE COMMISSION
MAKES A DECISION FROM WHICH HE DESIRES TO APPEAL HE MUST MAKE HIS
APPEAL IN THE COURTS OF THE DISTRICT OF COLUMBIA."  78 CONG. REC. 8825
26.  CF. SEN. REP. NO. 781, 73D CONG., 2D SESS., PP. 9-10. 

REVOCATION ORDERS TO EITHER THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA OR THE DISTRICT COURT OF THE DISTRICT IN WHICH THE STATION WAS
LOCATED.  44 STAT. 1162, 1169. 

FN4  SECTION 262 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 377, EMPOWERS
THE FEDERAL COURTS "TO ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED FOR BY
STATUTE, WHICH MAY BE NECESSARY FOR THE EXERCISE OF THEIR RESPECTIVE
JURISDICTIONS, AND AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW." 
THIS PROVISION APPEARED IN THE VERY FIRST JUDICIARY ACT, 1 STAT. 73, 81
82.  COMPARE DISTRICT OF COLUMBIA CODE (1940 ED.)  TITLE 11-208,
AUTHORIZING THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA "TO ISSUE
ALL NECESSARY AND PROPER REMEDIAL PREROGATIVE WRITS IN AID OF ITS
APPELLATE JURISDICTION."  31 STAT. 1189, 1227. 

FN5  AS LATE AS FEBRUARY 23, 1939, THE COMMISSION STATED ITS POSITION
AS FOLLOWS:  "THE COMMISSION HAS NOT OPPOSED IN THE PAST, AND DOES NOT
PROPOSE IN THE FUTURE TO OPPOSE THE GRANTING OF A STAY OR SUCH
INTERLOCUTORY RESTRAINING ORDER BY THIS COURT AS MAY BE NECESSARY TO
PROTECT THE APPELLATE JURISDICTION OF THE COURT OR PRESERVE THE STATUS
QUO PENDING DETERMINATION OF AN APPEAL FROM AN ORDER OF THE COMMISSION,
IN ANY CASE WHERE SUCH A STAY OR RESTRAINING ORDER APPEARS REASONABLY
TO BE NECESSARY OR ADVISABLE."  OPPOSITION TO PETITION FOR STAY ORDER
FILED BY THE COMMISSION IN CROSLEY CORP. V. FEDERAL COMMUNICATIONS
COMMISSION, NO. 7351, COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA,
FEB. 23, 1939, PP. 1-2. 

FN6  SEE NOTE 3, SUPRA. 

FN7  E.G., COMMODITY EXCHANGE ACT OF 1922, 42 STAT. 998, 1001, 7
U.S.C. SEC. 9; RADIO ACT OF 1927, 44 STAT. 1162; RAILROAD RETIREMENT
ACT OF 1937, 50 STAT. 307, 315, 45 U.S.C. SEC. 228K. 

FN8  E.G., FEDERAL ALCOHOL ADMINISTRATION ACT OF 1935, 49 STAT. 977,
980, 27 U.S.C. SEC. 204H; INVESTMENT COMPANY ACT OF 1940, 54 STAT. 789,
844, 15 U.S.C. SEC. 80A-42(B). 

FN9  E.G., AGRICULTURAL ADJUSTMENT ACT OF 1938, 52 STAT. 31, 7 U.S.C.
SEC. 1367; SECURITIES ACT OF 1933, 48 STAT. 74, 80, 15 U.S.C. SEC. 77I;
TRUST INDENTURE ACT OF 1939, 53 STAT. 1175, 15 U.S.C. SEC. 77VVV;
PUBLIC UTILITY ACT OF 1935, 49 STAT. 803, 834, 15 U.S.C. SEC. 79X;
INVESTMENT COMPANY ACT OF 1940, 54 STAT. 789, 844, 15 U.S.C. SEC. 80A
42(B); INVESTMENT ADVISERS ACT OF 1940, 54 STAT. 847, 856, 15 U.S.C.
SEC. 80B-13; FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060, 1065, 29
U.S.C. SEC. 210(B); BITUMINOUS COAL ACT OF 1937, 50 STAT. 85, 15 U.S.C.
SEC. 836(B); NATURAL GAS ACT OF 1938, 52 STAT. 821, 832, 15 U.S.C. SEC.
717R (C).    FN10  E.G., CIVIL AERONAUTICS ACT OF 1938, 52 STAT. 973,
1024, 49 U.S.C. SEC. 228K; FEDERAL TRADE COMMISSION ACT OF 1914, 38
STAT. 719, AS AMENDED, 52 STAT. 111, 113, 15 U.S.C. SEC.
45(C)(AUTHORIZING THE COURT TO ISSUE SUCH WRITS AS "ARE NECESSARY IN
ITS JUDGMENT TO PREVENT INJURY TO THE PUBLIC OR TO COMPETITORS PENDENTE
LITE"). 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.    MR. JUSTICE DOUGLAS, DISSENTING: 

CONGRESS HAS PROVIDED THROUGH SEC. 402(A) OF THE COMMUNICATIONS ACT
OF 1934 THAT IN APPEALS FROM CERTAIN CLASSES OF ORDERS OF THE FEDERAL
COMMUNICATIONS COMMISSION THE APPELLATE COURT MAY ISSUE A STAY.  THE
ORDER HERE INVOLVED IS OF A CLASS WHICH IS EXPRESSLY EXCEPTED FROM SEC.
402(A).  SEC. 402(B), WHICH PROVIDES FOR AN APPEAL FROM THIS CLASS OF
ORDER, CONTAINS NO PROVISION WHATSOEVER FOR A JUDICIAL STAY.  WHERE
CONGRESS IN ONE SECTION OF AN ACT HAS PROVIDED FOR A STAY OF CERTAIN
ORDERS BUT NOT OF OTHERS, IT HAS NOT REMAINED SILENT ON THE SUBJECT. 
IT HAS DRAWN A LINE.  AND THAT LINE SHOULD NOT BE OBLITERATED BY US, IN
ABSENCE OF PLAIN AND COMPELLING INDICATIONS THAT THE PURPOSE OF
CONGRESS WAS DIFFERENT FROM WHAT THE FACE OF THE STATUTE REVEALS. 
THERE ARE NO SUCH REASONS HERE. 

THE LEGISLATIVE HISTORY GIVES NO COMFORT TO THE VIEW OF THE
MAJORITY.  IN DRAFTING SEC. 402, CONGRESS HAD BEFORE IT H.R. 7716, 72D
CONGRESS.  THAT BILL, DESIGNED TO AMEND THE RADIO ACT OF 1927, HAD BEEN
PASSED BY BOTH HOUSES IN 1933 BUT HAD FAILED OF ENACTMENT BECAUSE OF A
POCKET VETO.  UNDER SEC. 16(F) OF THAT BILL, ORDERS OF THE TYPE HERE IN
QUESTION COULD BE STAYED BY THE APPELLATE COURT.  CONGRESS RELIED
EXTENSIVELY ON THAT EARLIER BILL IN DRAFTING SEC. 402.  H. REP. NO.
1918, 73D CONG., 2ND SESS., PP. 47-49.  IF CONGRESS HAD INTENDED THE
APPELLATE COURT TO HAVE THE POWER TO STAY THIS TYPE OF ORDER, IT HARDLY
SEEMS LIKELY, AS THE COMMISSION POINTS OUT, THAT CONGRESS WOULD HAVE
FAILED TO INCLUDE IT, WHEN, ONLY THE YEAR BEFORE, IT HAD ATTEMPTED TO
WRITE INTO THE STATUTE A SPECIFIC PROVISION CONFERRING THAT POWER.  BUT
IF WE DISREGARD THAT CIRCUMSTANCE AND TURN TO OTHER PARTS OF THE
LEGISLATIVE HISTORY, THERE ARE NO INDICATIONS THAT THE LINE WHICH
CONGRESS DREW BETWEEN SEC. 402(A) AND SEC. 402(B) WAS INADVERTENT OR
ACCIDENTAL. 

NOR ARE WE JUSTIFIED IN REWRITING THE STATUTE TO IRON OUT POSSIBLE
LOGICAL INCONSISTENCIES IN THE CLASSIFICATION OF ORDERS WHICH CONGRESS
HAS MADE IN SEC. 402(A) AND SEC. 402(B).  IF WE WERE A LEGISLATIVE
COMMITTEE, PERHAPS WE WOULD NOT RETAIN IN SEC. 402(A) ORDERS WHICH ARE
MADE BY THE COMMISSION ON ITS OWN MOTION AND WHICH MODIFY A STATION
LICENSE, SINCE SUCH ORDERS IF MADE PURSUANT TO AN APPLICATION ARE
COVERED BY SEC. 402(B).  BUT TO SEIZE ON THAT LACK OF SYMMETRY HERE IS
TO MISS THE FOREST FOR THE TREES.  THE NATURE OF THE RUN OF THE ORDERS
EXCEPTED FROM THE STAY PROVISIONS OF SEC. 402(A) DEMANDS RESPECT FOR
THE WORDS OF THE ACT.  THE INSTANT CASE IS A GOOD ILLUSTRATION. 
FEDERAL COMMUNICATIONS COMMISSION V. SANDERS BROS., 309 U.S. 470, HOLDS
THAT A COMPETITOR SUCH AS APPELLANT HAS NO PRIVATE PROPERTY INTEREST
WHICH MAY BE PROTECTED ON APPEAL.  "THE POLICY OF THE ACT IS CLEAR THAT
NO PERSON IS TO HAVE ANYTHING IN THE NATURE OF A PROPERTY RIGHT AS A
RESULT OF THE GRANTING OF A LICENSE."  ID., P. 475.  ANY INJURY TO AN
EXISTING STATION AS IS ALLEGED HERE "IS NOT A SEPARATE AND INDEPENDENT
ELEMENT TO BE TAKEN INTO CONSIDERATION BY THE COMMISSION IN DETERMINING
WHETHER IT SHALL GRANT OR WITHHOLD A LICENSE."  ID., P. 476.  THUS IT
IS MANIFEST THAT THE FAILURE OF CONGRESS TO EXTEND THE STAY PROVISIONS
OF SEC. 402(A) TO THE RUN OF ORDERS OF THIS TYPE MAKES SENSE.  THE
URGENT DEFICIENCIES ACT, WHICH IS INCORPORATED INTO SEC. 402(A), ALLOWS
A TEMPORARY STAY "WHERE IRREPARABLE DAMAGE WOULD OTHERWISE ENSUE TO THE
PETITIONER."  38 STAT. 208, 220.  BUT WHERE APPEALS UNDER SEC.
402(B)(2), AS IN THE INSTANT CASE, ARE NOT SHOWN TO INVOLVE PRIVATE
RIGHTS, ANALOGIES TO SITUATIONS WHERE THE POWER TO ISSUE A STAY IS
IMPLIED BECAUSE IRREPARABLE DAMAGE MAY BE DONE AN APPELLANT WHOSE
INDIVIDUAL INTEREST HAS BEEN UNLAWFULLY INVADED ARE INAPPOSITE.  FOR
THE SAME REASON, STATISTICS AS TO THE PRESENCE OF THIS POWER IN
STATUTES OF OTHER ADMINISTRATIVE AGENCIES ARE IRRELEVANT, IN ABSENCE OF
A SHOWING THAT IN THE PRECISE SITUATIONS THERE INVOLVED NO PRIVATE
RIGHTS WERE AT STAKE. 

AND THAT LEADS TO A RELATED REASON WHY IT WILL NOT DO TO LEAN ON "THE
HISTORIC PROCEDURES OF FEDERAL APPELLATE COURTS" SO THAT AN IMPLIED
POWER TO ISSUE A STAY IN THIS TYPE OF CASE MAY BE FOUND.  "THE OFFICE
AND JURISDICTION OF A COURT OF EQUITY, UNLESS ENLARGED BY EXPRESS
STATUTE, ARE LIMITED TO THE PROTECTION OF RIGHTS OF PROPERTY."  IN RE
SAWYER, 124 U.S. 200, 210.  ALL CONSTITUTIONAL QUESTIONS ASIDE (MUSKRAT
V. UNITED STATES, 219 U.S. 346), WE SHOULD REQUIRE EXPLICIT,
UNEQUIVOCAL AUTHORIZATION BEFORE WE PERMITTED AN APPELLANT WHO HAS NO
INDIVIDUAL SUBSTANTIVE RIGHT AT STAKE IN THE LITIGATION TO OBTAIN A
STAY TO PROTECT THE PUBLIC INTEREST.  REPEATED ATTEMPTS OF PRIVATE
LITIGANTS TO OBTAIN A SPECIAL STAKE IN PUBLIC RIGHTS HAVE BEEN
CONSISTENTLY DENIED.  SEE MASSACHUSETTS V. MELLON, 262 U.S. 447; SPRUNT
& SON V. UNITED STATES, 281 U.S. 249; ALABAMA POWER CO. V. ICKES, 302
U.S. 464; TENNESSEE ELECTRIC POWER CO. V. TENNESSEE VALLEY AUTHORITY,
306 U.S. 118; ATLANTA V. ICKES, 308 U.S. 517; SINGER & SONS V. UNION
PACIFIC R. CO., 311 U.S. 295.  THE ATTEMPT TO OBTAIN A STAY IS BUT
ANOTHER MANIFESTATION, ALBEIT OBLIQUE, OF THAT SAME ENDEAVOR.  HENCE,
INSTEAD OF STARTING FROM THE PREMISE THAT AN "HISTORIC POWER" TO ISSUE
A STAY IN THIS TYPE OF CASE WILL BE READILY IMPLIED, WE SHOULD ASSUME
JUST THE CONTRARY.  NOT EVEN LONG ACQUIESCENCE OR APPROVAL ON THE PART
OF THE COMMISSION SHOULD LEAD US TO MAKE SUCH A DEPARTURE FROM THOSE
HISTORIC, ACCEPTED PRINCIPLES.  FOR THAT REASON ALONE, SEC. 402(B)
SHOULD BE READ NARROWLY AND RESTRICTIVELY. 

BUT IT IS SAID THAT CONGRESS ENTRUSTED THE VINDICATION OF THE PUBLIC
INTEREST TO PRIVATE LITIGANTS.  THE SANDERS CASE, PROPERLY CONSTRUED,
MERELY MEANS THAT THE COURT OF APPEALS HAS JURISDICTION OF APPEALS BY A
"PERSON AGGRIEVED" OR BY ONE "WHOSE INTERESTS ARE ADVERSELY AFFECTED"
BY THE COMMISSION'S DECISION.  SEC. 402(B).  BUT THAT DOES NOT MEAN
THAT AN APPELLANT HAS A CAUSE OF ACTION MERELY BECAUSE HE HAS A
COMPETING STATION.  UNLESS HE CAN SHOW THAT HIS INDIVIDUAL INTEREST HAS
BEEN UNLAWFULLY INVADED, THERE IS MERELY DAMNUM ABSQUE INJURIA AND NO
CAUSE OF ACTION ON THE MERITS.  ALABAMA POWER CO. V. ICKES, SUPRA;
GREENWOOD COUNTY V. DUKE POWER CO., 81 F.2D 986, 999.  AND SEE DUKE
POWER CO. V. GREENWOOD COUNTY, 302 U.S. 485.  CONGRESS COULD HAVE SAID
THAT THE HOLDER OF A RADIO LICENSE HAS AN INDIVIDUAL SUBSTANTIVE RIGHT
TO BE FREE OF COMPETITION RESULTING FROM THE ISSUANCE OF ANOTHER
LICENSE AND CAUSING INJURY.  IN THAT EVENT, UNLIKE THE SITUATION IN
MUSKRAT V. UNITED STATES, SUPRA, THERE WOULD BE A CAUSE OF ACTION FOR
INVASION OF A SUBSTANTIVE RIGHT.  BUT AS WE SAID IN THE SANDERS CASE,
CONGRESS DID NOT CREATE SUCH A SUBSTANTIVE RIGHT.  AND NO FACTS ARE
SHOWN HERE WHICH WOULD BRING THIS APPEAL OUTSIDE THE RULE OF THAT
CASE.  ON THAT ASSUMPTION, I FAIL TO SEE HOW AN APPEAL STATUTE
CONSTITUTIONALLY COULD AUTHORIZE A PERSON WHO SHOWS NO CASE OR
CONTROVERSY TO CALL ON THE COURTS TO REVIEW AN ORDER OF THE
COMMISSION.  A FORTIORI HE WOULD HAVE NO STANDING TO OBTAIN A STAY. 

FURTHERMORE, THE POWER TO ISSUE A STAY IN THIS TYPE OF CASE CANNOT BE
FOUND IN THE "ALL WRITS" STATUTES.  JUDICIAL CODE, SEC. 262; DISTRICT
OF COLUMBIA CODE (1940 ED.)  TITLE 11-208.  AS WE STATED IN FEDERAL
COMMUNICATIONS COMMISSION V. POTTSVILLE BROADCASTING CO., 309 U.S. 134,
THE RELATIONSHIP BETWEEN THE COURT OF APPEALS AND THE COMMISSION IS NOT
THAT OF FEDERAL COURTS INTER SE.  "  ...  TO ASSIMILATE THE RELATION OF
THESE ADMINISTRATIVE BODIES AND THE COURTS TO THE RELATIONSHIP BETWEEN
LOWER AND UPPER COURTS IS TO DISREGARD THE ORIGIN AND PURPOSES OF THE
MOVEMENT FOR ADMINISTRATIVE REGULATION AND AT THE SAME TIME TO
DISREGARD THE TRADITIONAL SCOPE, HOWEVER FAR-REACHING, OF THE JUDICIAL
PROCESS.  UNLESS THESE VITAL DIFFERENTIATIONS BETWEEN THE FUNCTIONS OF
JUDICIAL AND ADMINISTRATIVE TRIBUNALS ARE OBSERVED, COURTS WILL STRAY
OUTSIDE THEIR PROVINCE AND READ THE LAWS OF CONGRESS THROUGH THE
DISTORTING LENSES OF INAPPLICABLE LEGAL DOCTRINE."  P. 144.  THE
COMMISSION, NOT THE COURTS, IS THE ULTIMATE GUARDIAN OF THE PUBLIC
INTEREST UNDER THIS ACT.  THE APPELLATE COURT IS LIMITED TO A
CORRECTION OF "ERRORS OF LAW."  ID., P. 145.  THE JUDGMENT OF THE
COMMISSION, NOT THE COURT, DETERMINES WHETHER THE PUBLIC INTEREST WILL
BE SERVED BY AN APPLICATION.  ID., PP. 144-145.  HENCE, THE POWER OF
THE COURTS IN THIS SITUATION TO ISSUE WRITS UNDER THE "ALL WRITS"
STATUTES SHOULD BE LIMITED TO THE PROTECTION OF ITS JURISDICTION.  IF,
AS HERE, CONSTRUCTION OF A NEW STATION IS COMPLETED PENDING APPEAL BY
ANOTHER LICENSEE, THE COURT'S JURISDICTION IS NOT IMPAIRED, THOUGH WE
ASSUME THAT IT HAS JURISDICTION OF THE APPEAL AND THAT APPELLANT HAS A
CAUSE OF ACTION ON THE MERITS.  IF THE COMMISSION HAS COMMITTED AN
ERROR OF LAW, IT MUST BOW TO THE DECREE OF THE COURT AND REVISE ITS
ORDER.  BUT TO ALLOW THE COURT TO GO BEYOND THAT AND FIND AN IMPLIED
POWER TO ISSUE A STAY IN THIS TYPE OF CASE IS TO DISTORT THE STATUTORY
SCHEME.  12 AIR L. REV. 224.  JEALOUS REGARD FOR THE ADMINISTRATIVE
ROLE AND FUNCTION IN THIS FIELD WILL LEAVE TO CONGRESS ANY ENLARGEMENT,
WITHIN CONSTITUTIONAL LIMITS, OF THE JUDICIAL POWER. 

MR. JUSTICE MURPHY JOINS IN THIS DISSENT. 
..END :










UNITED STATES V. IRWIN, 316 U.S. 23 


NO. 658.  ARGUED MARCH 11, 1942.  - DECIDED APRIL 6, 1942.  - 122 F.2D
73, REVERSED. 


1.  THE CONSTRUCTION OF A LIBRARY BUILDING AT HOWARD UNIVERSITY IN THE
DISTRICT OF COLUMBIA - A PROJECT FOR WHICH FEDERAL FUNDS WERE
APPROPRIATED BY ACT OF FEBRUARY 14, 1931, AND WHICH SUBSEQUENTLY WAS
APPROVED, AND FUNDS ALLOTTED THEREFOR, BY THE ADMINISTRATOR OF THE
FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS UNDER TITLE II OF THE
NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933 - WAS A "PUBLIC WORK"
WITHIN THE MEANING OF THE MILLER ACT OF AUGUST 24, 1935; AND THEREFORE
THE CONTRACTORS WERE PROPERLY REQUIRED TO POST A PAYMENT BOND SECURING
MATERIALMEN; AND A MATERIALMAN WHO SUPPLIED MATERIALS FOR THE PROJECT
AND HAD NOT BEEN PAID THEREFOR WAS ENTITLED TO SUE ON THE BOND IN THE
NAME OF THE UNITED STATES.  P. 27. 

2.  THE MILLER ACT WAS INTENDED TO APPLY TO THE "PUBLIC WORKS"
AUTHORIZED BY THE ADMINISTRATOR UNDER THE NATIONAL INDUSTRIAL RECOVERY
ACT; AND, UNDER THE LATTER ACT, THE LIBRARY AT HOWARD UNIVERSITY WAS A
"PUBLIC WORK," SINCE IT WAS A PROJECT "OF THE CHARACTER HERETOFORE
CONSTRUCTED OR CARRIED ON  ...  WITH PUBLIC AID TO SERVE THE INTERESTS
OF THE GENERAL PUBLIC."  P. 30. 

UNITED STATES TO THE USE OF NOLAND COMPANY, INC. V. IRWIN ET AL.,
TRADING AS IRWIN & LEIGHTON, ET AL. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 314 U.S. 602, TO REVIEW THE REVERSAL OF A JUDGMENT
OVERRULING A MOTION TO DISMISS THE COMPLAINT IN A SUIT UPON A BOND. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

BY ACT OF FEBRUARY 14, 1931,  FN1  MAKING APPROPRIATIONS FOR THE
DEPARTMENT OF THE INTERIOR, CONGRESS AUTHORIZED THE CONSTRUCTION OF A
LIBRARY BUILDING AT HOWARD UNIVERSITY IN THE DISTRICT OF COLUMBIA.  THE
COST WAS NOT TO EXCEED $800,000, OF WHICH SUM $400,000 WAS MADE
IMMEDIATELY AVAILABLE.  ONLY A SMALL PART OF THIS MONEY HAD BEEN USED
FOR ARCHITECTS' FEES WHEN THE PRESIDENT, SHORTLY AFTER HIS INAUGURATION
IN 1933, ORDERED IMPOUNDED THESE AND ALL OTHER FUNDS APPROPRIATED FOR
CONSTRUCTION. 

TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933,
FN2 CREATED A FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, WITH
ALL OF ITS POWERS VESTED IN AN ADMINISTRATOR.  BY SEC. 202 THE
ADMINISTRATOR WAS DIRECTED TO "PREPARE A COMPREHENSIVE PROGRAM OF
PUBLIC WORKS, WHICH SHALL INCLUDE AMONG OTHER THINGS THE FOLLOWING:
...  (C) ANY PROJECTS OF THE CHARACTER HERETOFORE CONSTRUCTED OR
CARRIED ON EITHER DIRECTLY BY PUBLIC AUTHORITY OR WITH PUBLIC AID TO
SERVE THE INTERESTS OF THE GENERAL PUBLIC; ...  "  AND SEC. 203
PROVIDED THAT "WITH A VIEW TO INCREASING EMPLOYMENT QUICKLY  ...  THE
PRESIDENT IS AUTHORIZED AND EMPOWERED THROUGH THE ADMINISTRATOR OR
THROUGH SUCH OTHER AGENCIES AS HE MAY DESIGNATE OR CREATE, (1) TO
CONSTRUCT, FINANCE, OR AID IN THE CONSTRUCTION OR FINANCING OF ANY
PUBLIC WORKS PROJECT INCLUDED IN THE PROGRAM PREPARED PURSUANT TO SEC.
202; ...  " 

ON AUGUST 24, 1935, CONGRESS PASSED THE MILLER ACT.  FN3  BY THE TERMS
OF THIS STATUTE, "BEFORE ANY CONTRACT, EXCEEDING $2,000 IN AMOUNT, FOR
THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR
PUBLIC WORK OF THE UNITED STATES IS AWARDED TO ANY PERSON, SUCH PERSON
SHALL FURNISH TO THE UNITED STATES ...  A PAYMENT BOND WITH A SURETY OR
SURETIES SATISFACTORY TO SUCH OFFICER FOR THE PROTECTION OF ALL PERSONS
SUPPLYING LABOR AND MATERIAL IN THE PROSECUTION OF THE WORK PROVIDED
FOR IN SAID CONTRACT FOR THE USE OF EACH SUCH PERSON."  THE ACT ALSO
PERMITTED PERSONS WHO SUPPLIED MATERIALS AND LABOR TO BRING SUIT ON THE
BOND IN THE NAME OF THE UNITED STATES. 

THESE ARE THE STATUTES APPLICABLE TO THIS DISPUTE. 

AFTER THE PASSAGE OF THE NATIONAL INDUSTRIAL RECOVERY ACT, THE
SECRETARY OF THE INTERIOR (WHO HAD BEEN NAMED ADMINISTRATOR PURSUANT TO
TITLE II) APPROVED THE LIBRARY BUILDING AT HOWARD UNIVERSITY AS A PART
OF THE PUBLIC WORKS PROGRAM AND ALLOTTED $1,120,811.58 FOR ITS
CONSTRUCTION.  ON DECEMBER 5, 1936, THE ASSISTANT SECRETARY OF THE
INTERIOR, ON BEHALF OF THE UNITED STATES, ENTERED INTO A CONTRACT WITH
RESPONDENT, IRWIN & LEIGHTON, FOR THE CONSTRUCTION OF THE LIBRARY
BUILDING.  AS A CONDITION OF THE CONTRACT, IRWIN & LEIGHTON WAS
REQUIRED TO FURNISH A BOND TO SECURE THE LABORERS AND MATERIALMEN,
UNDER PROVISIONS OF THE MILLER ACT.  FN4  ACCORDINGLY, IT POSTED SUCH A
BOND IN THE AMOUNT OF $408,618, WITH RESPONDENT UNITED STATES GUARANTEE
COMPANY AS SURETY. 

PETITIONER FURNISHED TO A SUB-CONTRACTOR MATERIALS WORTH $23,649.35. 
OF THIS SUM IT WAS PAID $11,146.80, LEAVING DUE $12,502.55 WITH
INTEREST.  WHEN PAYMENT OF THIS AMOUNT WAS REFUSED, PETITIONER BROUGHT
THIS SUIT ON THE BOND IN THE NAME OF THE UNITED STATES.  RESPONDENTS
MOVED TO DISMISS THE COMPLAINT ON THE GROUND THAT THE CONSTRUCTION OF
THE LIBRARY BUILDING AT HOWARD UNIVERSITY WAS NOT A "PUBLIC WORK,"
WITHIN THE MEANING OF THE MILLER ACT.  THE DISTRICT COURT OVERRULED THE
MOTION TO DISMISS.  THE COURT OF APPEALS ALLOWED A SPECIAL APPEAL AND
REVERSED, 122 F.2D 73, ON THE AUTHORITY OF ITS OWN EARLIER DECISION IN
MAIATICO CONSTRUCTION CO. V. UNITED STATES, 65 APP. D.C. 62, 79 F.2D
418.  THE CASE IS HERE ON CERTIORARI. 

THE QUESTION BEFORE US THEREFORE IS WHETHER THE CONSTRUCTION OF THE
LIBRARY WAS A "PUBLIC WORK" AS THAT TERM IS USED IN THE MILLER ACT.  WE
THINK THAT IT IS, THAT THE ASSISTANT SECRETARY OF THE INTERIOR WAS
CONSEQUENTLY AUTHORIZED TO REQUIRE RESPONDENTS TO POST A BOND SECURING
MATERIALMEN, AND THAT PETITIONER IS ENTITLED TO SUE ON THE BOND IN THE
NAME OF THE UNITED STATES. 

NO AID IN ASCERTAINING THE MEANING OF "PUBLIC WORKS" IS TO BE FOUND
IN THE MILLER ACT ITSELF.  BUT IN THE NATIONAL INDUSTRIAL RECOVERY ACT,
PASSED TWO YEARS BEFORE THE MILLER ACT, CONGRESS DEFINED IT AS
INCLUDING "ANY PROJECTS OF THE CHARACTER HERETOFORE CONSTRUCTED OR
CARRIED ON EITHER DIRECTLY BY PUBLIC AUTHORITY OR WITH PUBLIC AID TO
SERVE THE INTERESTS OF THE GENERAL PUBLIC."  THE LIBRARY AT HOWARD
UNIVERSITY WAS NOT ONLY A PROJECT "OF THE CHARACTER HERETOFORE
CONSTRUCTED OR CARRIED ON  ...  WITH PUBLIC AID"; IT HAD BEEN DIRECTLY
AND SPECIFICALLY AUTHORIZED BY CONGRESS IN 1931 AND MONEY HAD ACTUALLY
BEEN APPROPRIATED FOR IT.  AND IT REQUIRES NO DISCUSSION THAT HOWARD
UNIVERSITY, ESTABLISHED BY THE AUTHORITY OF CONGRESS "FOR THE EDUCATION
OF YOUTH IN THE LIBERAL ARTS AND SCIENCES,"  FN5  SERVES "THE INTERESTS
OF THE GENERAL PUBLIC." 

IN MAIATICO CONSTRUCTION CO. V. UNITED STATES, SUPRA, UPON WHICH THE
COURT OF APPEALS PRINCIPALLY RELIED IN REACHING AN OPPOSITE CONCLUSION,
THE SAME COURT HAD CONSTRUED A DIFFERENT STATUTE, THE HEARD ACT OF
AUGUST 13, 1894.  FN6  THAT ACT REQUIRED THAT "ANY PERSON OR PERSONS
ENTERING INTO A FORMAL CONTRACT WITH THE UNITED STATES FOR THE
CONSTRUCTION OF ANY PUBLIC BUILDING, OR THE PROSECUTION AND COMPLETION
OF ANY PUBLIC WORK, OR FOR REPAIRS UPON ANY PUBLIC BUILDING OR PUBLIC
WORK, SHALL BE REQUIRED" TO POST A BOND FOR THE SECURITY OF BOTH THE
UNITED STATES AND THE SUPPLIERS OF LABOR AND MATERIALS.  IT PERMITTED
THE LABORERS AND MATERIALMEN TO ENFORCE THEIR CLAIMS BY INTERVENING IN
ANY SUIT BY THE UNITED STATES ON THE BOND.  THE PLAINTIFFS IN THE
MAIATICO CASE SUPPLIED LABOR AND MATERIALS IN THE CONSTRUCTION OF THREE
DORMITORY BUILDINGS AT HOWARD UNIVERSITY, THE CONTRACT FOR WHICH HAD
BEEN LET TO THE DEFENDANT CONSTRUCTION COMPANY BY THE UNITED STATES IN
NOVEMBER, 1930.  THE COURT OF APPEALS DECIDED THAT THE PLAINTIFFS COULD
NOT RECOVER ON THE DEFENDANT'S BOND BECAUSE THE DORMITORIES WERE NOT
"PUBLIC BUILDINGS" AND THEIR CONSTRUCTION WAS NOT A "PUBLIC WORK."  IT
BASED THIS CONCLUSION ON THE THEORY THAT "PUBLIC BUILDINGS" OR "PUBLIC
WORKS," WITHIN THE MEANING OF THE HEARD ACT, INCLUDED ONLY BUILDINGS
WHICH BELONGED TO THE UNITED STATES.  SINCE HOWARD UNIVERSITY IS A
PRIVATE INSTITUTION AND SINCE IT HELD TITLE TO THE DORMITORIES,
RECOVERY ON THE BOND WAS DENIED TO THE SUPPLIERS OF MATERIALS AND
LABOR.  FN7 

WHATEVER MAY HAVE BEEN THE VALIDITY OF THIS NARROW FORMULA WHEN
APPLIED TO THE HEARD ACT, WE CANNOT APPROVE ITS APPLICATION TO THIS
SUIT UNDER THE MILLER ACT.  IN THE FIRST PLACE, THE WHOLE CONCEPT OF
"PUBLIC WORKS" HAS BEEN CONSIDERABLY ALTERED SINCE THE ENACTMENT OF THE
HEARD ACT IN 1894, AND PARTICULARLY WITHIN THE LAST DOZEN YEARS, AND
THE QUESTION OF TITLE TO THE BUILDINGS OR IMPROVEMENTS OR TO THE LAND
ON WHICH THEY ARE SITUATED IS NO LONGER OF PRIMARY SIGNIFICANCE.  FN8
BUT WE ARE NOT LEFT TO SUCH VAGUE GUIDANCE.  TWO AND A HALF YEARS AFTER
THE EXECUTION OF THE CONTRACT INVOLVED IN THE MAIATICO CASE, CONGRESS,
IN THE NATIONAL INDUSTRIAL RECOVERY ACT, SPECIFICALLY DEFINED "PUBLIC
WORKS" AS INCLUDING "ANY PROJECTS OF THE CHARACTER HERETOFORE
CONSTRUCTED OR CARRIED ON EITHER DIRECTLY BY PUBLIC AUTHORITY OR WITH
PUBLIC AID TO SERVE THE INTERESTS OF THE GENERAL PUBLIC."  THE MILLER
ACT WAS PASSED TWO YEARS LATER FOR THE PURPOSE OF ENLARGING THE
PROTECTION WHICH THE HEARD ACT HAD AFFORDED TO LABORERS AND MATERIALMEN
BY FACILITATING THE PROCEDURE FOR ENFORCING THEIR CLAIMS AGAINST THE
CONTRACTOR.  DURING THE HEARINGS ON THE SEVERAL BILLS FROM WHICH THE
MILLER ACT EVOLVED, CONGRESSMAN DUFFY, OF OHIO, THE AUTHOR OF ONE OF
THE BILLS AND A MEMBER OF THE SUB-COMMITTEE THAT DRAFTED THE ACT,
DECLARED WITHOUT DISSENT BY ANY REPRESENTATIVE:  "IF THIS BILL WERE
PASSED BY THIS CONGRESS IT WOULD CERTAINLY BE APPLICABLE TO THE PUBLIC
WORKS PROGRAM AND THAT IS THE REASON FOR ITS IMPORTANCE."  FN9 

WE HAVE NO DOUBT THAT THE MILLER ACT WAS INTENDED TO APPLY TO THE
"PUBLIC WORKS" AUTHORIZED BY THE ADMINISTRATOR UNDER THE NATIONAL
INDUSTRIAL RECOVERY ACT.  THE NATIONAL INDUSTRIAL RECOVERY ACT DID NOT
LEAVE TO SPECULATION THE NATURE OF THE "PUBLIC WORKS" THAT CONGRESS
ENVISAGED.  ITS LANGUAGE WAS NOT TECHNICAL, BUT PLAIN AND SPECIFIC. 
EXPRESSLY INCLUDED WERE "PROJECTS OF THE CHARACTER HERETOFORE
CONSTRUCTED OR CARRIED ON  ...  WITH PUBLIC AID TO SERVE THE INTERESTS
OF THE GENERAL PUBLIC."  BEYOND QUESTION THE LIBRARY AT HOWARD
UNIVERSITY WAS SUCH A PROJECT. 

THE RESPONDENTS EVIDENTLY HAD NO DIFFICULTY INTERPRETING THE LANGUAGE
OF THE RECOVERY ACT OR THE MILLER ACT UNTIL THEY WERE CALLED UPON TO
MEET THE CLAIMS OF PETITIONER.  THE RECORD DOES NOT REVEAL THAT IRWIN &
LEIGHTON OBJECTED TO POSTING THE BOND WHEN THE CONTRACT WAS EXECUTED. 
IT PAID A PREMIUM OF $8,172.25 FOR THE BOND, AND THE SURETY COMPANY
ACCEPTED IT WITHOUT QUESTION.  PRESUMABLY, THESE ARE THE CIRCUMSTANCES
WHICH CAUSED THE COURT OF APPEALS TO REMARK UPON "THE STRONG EQUITIES"
OF PETITIONER'S CASE. 

WE HOLD THAT THE ADMINISTRATOR HAD THE AUTHORITY TO REQUIRE THE BOND,
AND THAT PETITIONER WAS ENTITLED TO BRING THIS ACTION ON IT.  HOLDING
THIS VIEW, WE FIND IT UNNECESSARY TO CONSIDER THE OTHER QUESTIONS
RAISED BY PETITIONER.  REVERSED. 

FN1  46 STAT. 1115, 1160. 

FN2  48 STAT. 195, 201. 

FN3  49 STAT. 793; U.S.C., TITLE 40, SECS. 270 A-D: 

"SEC. 1(A)  BEFORE ANY CONTRACT, EXCEEDING $2,000 IN AMOUNT, FOR THE
CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC
WORK OF THE UNITED STATES IS AWARDED TO ANY PERSON, SUCH PERSON SHALL
FURNISH TO THE UNITED STATES THE FOLLOWING BONDS, WHICH SHALL BECOME
BINDING UPON THE AWARD OF THE CONTRACT TO SUCH PERSON, WHO IS
HEREINAFTER DESIGNATED AS 'CONTRACTOR': 

"(1)  A PERFORMANCE BOND WITH A SURETY OR SURETIES SATISFACTORY TO
THE OFFICER AWARDING SUCH CONTRACT, AND IN SUCH AMOUNT AS HE SHALL DEEM
ADEQUATE, FOR THE PROTECTION OF THE UNITED STATES. 

"(2)  A PAYMENT BOND WITH A SURETY OR SURETIES SATISFACTORY TO SUCH
OFFICER FOR THE PROTECTION OF ALL PERSONS SUPPLYING LABOR AND MATERIAL
IN THE PROSECUTION OF THE WORK PROVIDED FOR IN SAID CONTRACT FOR THE
USE OF EACH SUCH PERSON.  WHENEVER THE TOTAL AMOUNT PAYABLE BY THE
TERMS OF THE CONTRACT SHALL BE NOT MORE THAN $1,000,000 THE SAID
PAYMENT BOND SHALL BE IN A SUM OF ONE-HALF THE TOTAL AMOUNT PAYABLE BY
THE TERMS OF THE CONTRACT.  WHENEVER THE TOTAL AMOUNT PAYABLE BY THE
TERMS OF THE CONTRACT SHALL BE MORE THAN $1,000,000 AND NOT MORE THAN
$5,000,000, THE SAID PAYMENT BOND SHALL BE IN A SUM OF 40 PER CENTUM OF
THE TOTAL AMOUNT PAYABLE BY THE TERMS OF THE CONTRACT.  WHENEVER THE
TOTAL AMOUNT PAYABLE BY THE TERMS OF THE CONTRACT SHALL BE MORE THAN
$5,000,000 THE SAID PAYMENT BOND SHALL BE IN THE SUM OF $2,500,000. 

"(B)  THE CONTRACTING OFFICER IN RESPECT OF ANY CONTRACT IS
AUTHORIZED TO WAIVE THE REQUIREMENT OF A PERFORMANCE BOND AND PAYMENT
BOND FOR SO MUCH OF THE WORK UNDER SUCH CONTRACT AS IS TO BE PERFORMED
IN A FOREIGN COUNTRY IF HE FINDS THAT IT IS IMPRACTICABLE FOR THE
CONTRACTOR TO FURNISH SUCH BONDS. 

"(C)  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT THE
AUTHORITY OF ANY CONTRACTING OFFICER TO REQUIRE A PERFORMANCE BOND OR
OTHER SECURITY IN ADDITION TO THOSE, OR IN CASES OTHER THAN THE CASES
SPECIFIED IN SUBSECTION (A) OF THIS SECTION. 

"SEC. 2(A)  EVERY PERSON WHO HAS FURNISHED LABOR OR MATERIAL IN THE
PROSECUTION OF THE WORK PROVIDED FOR IN SUCH CONTRACT, IN RESPECT OF
WHICH A PAYMENT BOND IS FURNISHED UNDER THIS ACT AND WHO HAS NOT BEEN
PAID IN FULL THEREFOR BEFORE THE EXPIRATION OF A PERIOD OF NINETY DAYS
AFTER THE DAY ON WHICH THE LAST OF THE LABOR WAS DONE OR PERFORMED BY
HIM OR MATERIAL WAS FURNISHED OR SUPPLIED BY HIM FOR WHICH SUCH CLAIM
IS MADE, SHALL HAVE THE RIGHT TO SUE ON SUCH PAYMENT BOND FOR THE
AMOUNT, OR THE BALANCE THEREOF, UNPAID AT THE TIME OF INSTITUTION OF
SUCH SUIT AND TO PROSECUTE SAID ACTION TO FINAL EXECUTION AND JUDGMENT
FOR THE SUM OR SUMS JUSTLY DUE HIM: PROVIDED, HOWEVER, THAT ANY PERSON
HAVING DIRECT CONTRACTUAL RELATIONSHIP WITH A SUBCONTRACTOR BUT NO
CONTRACTUAL RELATIONSHIP EXPRESS OR IMPLIED WITH THE CONTRACTOR
FURNISHING SAID PAYMENT BOND SHALL HAVE A RIGHT OF ACTION UPON THE SAID
PAYMENT BOND UPON GIVING WRITTEN NOTICE TO SAID CONTRACTOR WITHIN
NINETY DAYS FROM THE DATE ON WHICH SUCH PERSON DID OR PERFORMED THE
LAST OF THE LABOR OR FURNISHED OR SUPPLIED THE LAST OF THE MATERIAL FOR
WHICH SUCH CLAIM IS MADE, STATING WITH SUBSTANTIAL ACCURACY THE AMOUNT
CLAIMED AND THE NAME OF THE PARTY TO WHOM THE MATERIAL WAS FURNISHED OR
SUPPLIED OR FOR WHOM THE LABOR WAS DONE OR PERFORMED.  SUCH NOTICE
SHALL BE SERVED BY MAILING THE SAME BY REGISTERED MAIL, POSTAGE
PREPAID, IN AN ENVELOP ADDRESSED TO THE CONTRACTOR AT ANY PLACE HE
MAINTAINS AN OFFICE OR CONDUCTS HIS BUSINESS, OR HIS RESIDENCE, OR IN
ANY MANNER IN WHICH THE UNITED STATES MARSHAL OF THE DISTRICT IN WHICH
THE PUBLIC IMPROVEMENT IS SITUATED IS AUTHORIZED BY LAW TO SERVE
SUMMONS.    "(B)  EVERY SUIT INSTITUTED UNDER THIS SECTION SHALL BE
BROUGHT IN THE NAME OF THE UNITED STATES FOR THE USE OF THE PERSON
SUING, IN THE UNITED STATES DISTRICT COURT FOR ANY DISTRICT IN WHICH
THE CONTRACT WAS TO BE PERFORMED AND EXECUTED AND NOT ELSEWHERE,
IRRESPECTIVE OF THE AMOUNT IN CONTROVERSY IN SUCH SUIT, BUT NO SUCH
SUIT SHALL BE COMMENCED AFTER THE EXPIRATION OF ONE YEAR AFTER THE DATE
OF FINAL SETTLEMENT OF SUCH CONTRACT.  THE UNITED STATES SHALL NOT BE
LIABLE FOR THE PAYMENT OF ANY COSTS OR EXPENSES OF ANY SUCH SUIT." 

FN4  BULLETIN NO. 51 OF FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC
WORKS, "INFORMATION RELATING TO THE NEGOTIATION AND ADMINISTRATION OF
CONTRACTS FOR FEDERAL PROJECTS UNDER TITLE II OF THE NATIONAL
INDUSTRIAL RECOVERY ACT" (REVISED, OCT. 1, 1935).  PART I, SEC. 2(A):
"THE FORMS REQUIRED FOR GENERAL USE IN CONNECTION WITH CONSTRUCTION AND
REPAIR PROJECTS ARE AS FOLLOWS:  ... U.S. GOVERNMENT STANDARD FORM OF
PAYMENT BOND NO. 25A FOR THE PROTECTION OF LABOR AND MATERIALMEN,
PURSUANT TO PUBLIC ACT NO. 321, SEVENTY-FOURTH CONGRESS, APPROVED
AUGUST 24, 1935(THE MILLER ACT)." 

FN5  14 STAT. 438. 

FN6  28 STAT. 278, AS AMENDED BY THE ACT OF FEB. 24, 1905, 33 STAT.
811 AND THE ACT OF MARCH 3, 1911, 36 STAT. 1167. 

FN7  THIS EMPHASIS UPON TITLE TO THE BUILDING OR PROJECT OR TO THE
LAND ON WHICH IT IS SITUATED FINDS SUPPORT, AS FAR AS THE HEARD ACT IS
CONCERNED, IN TITLE GUARANTY & TRUST CO. V. CRANE CO., 219 U.S. 24; 23
OP. ATTY. GEN. 174. 

FN8  SEE PETERSON V. UNITED STATES, 119 F.2D 145, AT 147-148. 

FN9  HEARINGS ON H.R. 2068, H.R. 4027, H.R. 4231, H.R. 4461, H.R.
5054, H.R. 6018, H.R. 6115, H.R. 6677, H.R. 8519(MARCH 8, 22, APRIL 26,
AND MAY 3, 1935), COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES,
74TH CONG., 1ST SESS., P. 71. 
..END :





SOUTHERN S.S. CO. V. LABOR BOARD, 316 U.S. 31 


NO. 320.  ARGUED FEBRUARY 9, 10, 1942.  - DECIDED APRIL 6, 1942.  - 120
F.2D 505, REVERSED. 


1.  THE NATIONAL LABOR RELATIONS BOARD IS NOT OBLIGED TO PERMIT THE
PRESENCE OF A REPRESENTATIVE OF THE EMPLOYER AT AN ELECTION BY THE
EMPLOYEES OF THEIR BARGAINING REPRESENTATIVE.  P. 37. 

2.  THE QUESTION WHETHER THE EMPLOYMENT OF SEAMEN AUTOMATICALLY
TERMINATES WHEN THEY SIGN OFF SHIPPING ARTICLES AT THE END OF THE
VOYAGE MUST BE DETERMINED UPON ALL THE EVIDENCE OF THE EMPLOYER'S
EMPLOYMENT CUSTOMS AND PRACTICES.  LABOR BOARD V. WATERMAN STEAMSHIP
CORP., 309 U.S. 206.  P. 37. 

3.  SEAMEN WHO, IN ORDER TO COMPEL RECOGNITION OF THEIR UNION, STAGE
A STRIKE ON BOARD THEIR SHIP WHILE SHE IS AWAY FROM HER HOME PORT AND
LYING TIED UP TO A DOCK IN ANOTHER PORT IN THIS COUNTRY; AND WHO
DELIBERATELY AND PERSISTENTLY DISOBEY AND DEFY THE LAWFUL COMMANDS OF
THEIR CAPTAIN AND OTHER OFFICERS THAT THEY PERFORM THEIR DUTIES IN
MAKING READY FOR THE DEPARTURE OF THE SHIP, ARE GUILTY OF MUTINY AND
CONSPIRACY TO COMMIT MUTINY IN VIOLATION OF SECS. 292 AND 293 OF THE
CRIMINAL CODE.  P. 40. 

4.  WHEN SEAMEN ARE DISCHARGED FOR ACTS OF MUTINY ABOARD SHIP, THE
NATIONAL LABOR RELATIONS BOARD IS NOT AUTHORIZED BY SEC. 10(C) OF THAT
ACT TO COMPEL THEIR REINSTATEMENT.  P. 46. 

SOUTHERN STEAMSHIP CO. V. NATIONAL LABOR RELATIONS BOARD ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 314 U.S. 594, TO REVIEW A JUDGMENT ENFORCING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

UPON THE PETITION OF A UNION NOT A PARTY TO THE PRESENT SUIT, THE
NATIONAL LABOR RELATIONS BOARD ORDERED AN ELECTION AMONG PETITIONER'S
UNLICENSED EMPLOYEES TO DETERMINE THEIR COLLECTIVE BARGAINING
REPRESENTATIVE.  THE ELECTIONS WERE HELD ON BOARD SEVEN OF PETITIONER'S
VESSELS DURING OCTOBER, 1937.  IN THE CASE OF THE ELECTION ON BOARD THE
S.S. CITY OF HOUSTON, THE LABOR ORGANIZATIONS INVOLVED OBJECTED TO THE
PRESENCE OF ANY REPRESENTATIVE OF THE PETITIONER DURING THE VOTING, AND
CONSEQUENTLY NONE WAS ADMITTED BY THE BOARD.  NO SUCH OBJECTION WAS
RAISED WITH RESPECT TO THE SUBSEQUENT BALLOTING, AND PETITIONER'S
REPRESENTATIVES WERE PRESENT WHILE THE VOTE WAS TAKEN ON BOARD THE
REMAINING SIX VESSELS.  THE NATIONAL MARITIME UNION OBTAINED A CLEAR
MAJORITY OF ALL THE VOTES CAST.  BECAUSE OF THE EXCLUSION OF ITS
REPRESENTATIVE FROM THE VOTING ON THE S.S. CITY OF HOUSTON, PETITIONER
OBJECTED TO THE CERTIFICATION OF THE N.M.U. AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT.  ON JANUARY 26, 1938, THE
BOARD REJECTED PETITIONER'S CONTENTION, AND ISSUED A CERTIFICATION
ORDER.  4 N.L.R.B. 1140. 

SIX MONTHS LATER, ON JULY 26, THE N.M.U. FILED CHARGES AGAINST
PETITIONER, WHICH IT AMENDED ON NOVEMBER 22.  ON NOVEMBER 23, THE BOARD
ISSUED A COMPLAINT IN WHICH IT ACCUSED PETITIONER OF VIOLATIONS OF
SECS. 8(1), (3) AND (5) OF THE NATIONAL LABOR RELATIONS ACT.  U.S.C.,
TITLE 29, SEC. 158(1), (3), (5).  THE ALLEGATIONS OF THE COMPLAINT WERE
THAT THE N.M.U. HAD BEEN CERTIFIED IN JANUARY AS EXCLUSIVE BARGAINING
REPRESENTATIVE; THAT PETITIONER HAD CONSISTENTLY REFUSED SINCE THAT
TIME TO BARGAIN WITH THE UNION; THAT AS A RESULT OF THIS REFUSAL TO
BARGAIN A STRIKE HAD OCCURRED, ON JULY 18, ABOARD PETITIONER'S S.S.
CITY OF FORT WORTH, WHILE DOCKED AT HOUSTON, TEXAS; THAT UPON THE CITY
OF FORT WORTH'S RETURN TO PHILADELPHIA, ON JULY 25, FIVE MEMBERS OF THE
CREW FN1  WERE DISCHARGED BECAUSE OF THEIR MEMBERSHIP AND ACTIVITY IN
THE UNION, AND PARTICULARLY BECAUSE OF THEIR PARTICIPATION IN THE
STRIKE; AND THAT AS A RESULT OF THESE DISCHARGES OTHER MEMBERS  FN2  OF
THE CREW OF THE FORT WORTH HAD GONE ON STRIKE WHILE THE VESSEL WAS AT
HOME DOCK IN PHILADELPHIA.  IN ITS ANSWER TO THIS COMPLAINT, PETITIONER
GENERALLY DENIED THESE ALLEGATIONS AND CHIEFLY CONTENDED:  FIRST, THAT
IT HAD BEEN UNDER NO OBLIGATION TO BARGAIN WITH THE N.M.U., BECAUSE THE
BOARD'S REFUSAL TO PERMIT PETITIONER TO BE REPRESENTED AT THE ELECTION
ABOARD THE S.S. CITY OF HOUSTON RENDERED THE ENTIRE CERTIFICATION
PROCEEDINGS VOID; AND SECOND, THAT THE DISCHARGE OF THE FIVE MEMBERS OF
THE CITY OF FORT WORTH WAS NOT AN UNFAIR LABOR PRACTICE, BECAUSE IT WAS
BASED UPON THEIR MISCONDUCT IN STRIKING, ON JULY 18, WHILE UNDER
SHIPPING ARTICLES, AWAY FROM HOME PORT, AND ON BOARD SHIP. 

AFTER THE USUAL PROCEEDINGS, ON APRIL 22, 1940, THE BOARD ISSUED ITS
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER.  23 N.L.R.B. 26.  ITS
FINDINGS, WHICH MUST BE SET OUT IN SOME DETAIL, FOLLOW: 

AFTER THE ELECTION AND THE CERTIFICATION OF THE N.M.U. IN JANUARY,
1938, THE UNION MADE PERSISTENT EFFORTS THROUGH ITS REPRESENTATIVES TO
ARRANGE A BARGAINING CONFERENCE WITH OFFICIALS OF THE PETITIONER. 
EVERY SUCH ATTEMPT WAS FRUSTRATED BY THE LATTER, WHO REFUSED EVEN TO
ANSWER THE REQUESTS, UNTIL AUGUST.  IN THAT MONTH, THE UNION WAS
NOTIFIED THAT PETITIONER WOULD NOT UNDERTAKE TO BARGAIN WITH IT "UNTIL
THE VALIDITY OF THE BOARD'S CERTIFICATION WAS SETTLED BY THE BOARD AND
THE COURTS." 

ON JULY 17, WHILE THE CITY OF FORT WORTH WAS DOCKED AT HOUSTON,
THIRTEEN UNLICENSED MEMBERS OF THE CREW MET IN A UNION HALL.  THEY
DECIDED TO STRIKE THE NEXT DAY, TO COMPEL PETITIONER TO RECOGNIZE THE
UNION AND TO ISSUE TO THE UNION'S SHORE DELEGATES THE PASSES WITHOUT
WHICH THEY COULD NOT BOARD PETITIONER'S VESSELS.  AT 8 O'CLOCK THE
FOLLOWING MORNING, THE STRIKE BEGAN.  ONE OF THE MEN, TRACEY, FAILED TO
TURN THE STEAM "ON DECK" FOR USE IN LOADING THE CARGO.  HE WAS THEN
ASKED BY THE FIRST ASSISTANT ENGINEER WHY HE HAD FAILED TO DO SO, AND
ANSWERED THAT A STRIKE WAS ON, EXPLAINING THE STRIKERS' DEMANDS.  WHEN
THE FIRST ASSISTANT ENGINEER TURNED ON THE STEAM HIMSELF, TRACEY
PERSUADED BRAUN, THE FIREMAN, TO LEAVE HIS POST.  AND FERGUSON, WHO
CAME ON DUTY JUST AT THAT MOMENT TO REPLACE BRAUN AS FIREMAN, ALSO
REFUSED TO TEND THE FIRES.  THE SECOND ASSISTANT ENGINEER THEN
UNDERTOOK TO TEND THE FIRES HIMSELF, AND TRACEY, FERGUSON AND BRAUN
WENT TO THE POOP DECK, WHERE THE REST OF THE STRIKERS WERE SITTING. 
THE POOP DECK IS THE USUAL MEETING PLACE OF THE CREW WHEN NOT ON DUTY. 

FROM THAT TIME UNTIL EVENING THE STRIKERS SAT QUIETLY BY, ENGAGING IN
NO VIOLENCE AND NOT INTERFERING WITH THE OFFICERS OF THE SHIP OR THE
NON-STRIKING MEMBERS OF THE CREW, WHO PROCEEDED WITH THE LOADING OF THE
CARGO.  THE STRIKERS DID NOT "CLAIM TO HOLD THE SHIP IN DEFIANCE OF THE
RIGHT OF POSSESSION OF THE OWNER."  FN3  BUT WHEN THE CAPTAIN ORDERED
THEM TO RETURN TO WORK, THEY REFUSED.  THEY CONTINUED TO REFUSE AFTER A
DEPUTY UNITED STATES SHIPPING COMMISSIONER CAME ABOARD AND READ TO THEM
THAT PROVISION OF THEIR SHIPPING ARTICLES IN WHICH THEY HAD PROMISED
"TO BE OBEDIENT TO THE LAWFUL COMMANDS" OF THE MASTER.  LATE IN THE
AFTERNOON, ALTHOUGH HE HAD NOT BEEN AUTHORIZED TO DO SO, PETITIONER'S
ATTORNEY IN HOUSTON PROMISED THE UNION'S ATTORNEY IN THAT CITY THAT HE
WOULD MEET WITH THE LATTER DURING THE FOLLOWING WEEK TO NEGOTIATE AN
AGREEMENT AND THAT HE WOULD RECOMMEND TO PETITIONER THAT PASSES BE
GRANTED TO SHORE DELEGATES.  AS A RESULT OF THIS PROMISE, THE STRIKE
WAS ENDED AT ABOUT 7 P.M. AND THE SHIP SAILED ON SCHEDULE AT ABOUT 9
P.M. 

THE RETURN VOYAGE TO PHILADELPHIA WAS MARKED BY NO FURTHER
DIFFICULTY.  HOWEVER, DURING THE COURSE OF IT THE CAPTAIN DECIDED NOT
TO RESHIP FIVE OF THE STRIKERS.  FN4  WHEN THE SHIP REACHED PORT ON
JULY 25 AND THE MEN SIGNED OFF THE SHIPPING ARTICLES, THESE FIVE WERE
INFORMED THAT THEY WOULD NOT BE RESHIPPED.  MOST OF THEM HAD BEEN
MEMBERS OF THE CITY OF FORT WORTH'S CREW CONTINUOUSLY FOR A
CONSIDERABLE LENGTH OF TIME.  FN5  IT WAS THE CUSTOM OF PETITIONER TO
HAVE THE SEAMEN SIGN NEW ARTICLES FOR THE NEXT VOYAGE WHEN SIGNING OFF
THE OLD, BUT EVEN WHEN THIS WAS NOT DONE THE MEN CONSIDERED THEMSELVES
EMPLOYED FOR THE NEXT VOYAGE UNLESS NOTIFIED TO THE CONTRARY.  UNDER
THESE CIRCUMSTANCES, THE BOARD FOUND THAT THE FIVE MEN IN QUESTION HAD
ACTUALLY BEEN DISCHARGED AND THAT THEIR EMPLOYMENT HAD NOT SIMPLY ENDED
AS OF COURSE WHEN THE SHIPPING ARTICLES EXPIRED.  SEVEN  FN6  OF THE
OTHER MEN WHO HAD ENGAGED IN THE HOUSTON STRIKE IMMEDIATELY STRUCK
AGAIN IN PROTEST AGAINST THE DISCHARGE OF THEIR FELLOWS.  ON THE BASIS
OF THIS EVIDENCE, THE BOARD FOUND THAT BOTH THE STRIKE AT HOUSTON ON
JULY 18 AND THE STRIKE AT PHILADELPHIA ON JULY 25 WERE CAUSED BY
PETITIONER'S UNFAIR LABOR PRACTICES.  AND IT MADE A SPECIFIC FINDING
WITH RESPECT TO EACH OF THE FIVE MEN THAT THE DISCHARGE WAS BASED UPON
PARTICIPATION IN THE HOUSTON STRIKE.  IT CONCLUDED THAT PETITIONER HAD
INTERFERED WITH ITS EMPLOYEES' RIGHT TO ORGANIZE AND BARGAIN
COLLECTIVELY, IN VIOLATION OF SEC. 8(1); THAT IT HAD DISCRIMINATED WITH
REGARD TO TENURE OF EMPLOYMENT, IN VIOLATION OF SEC. 8(3); AND THAT IT
HAD REFUSED TO BARGAIN WITH THE AUTHORIZED REPRESENTATIVE OF ITS
EMPLOYEES, IN VIOLATION OF SEC. 8(5). 

CONSEQUENTLY, IT ORDERED PETITIONER TO CEASE AND DESIST:  (A) FROM
DISCOURAGING MEMBERSHIP IN THE N.M.U., OR ANY OTHER LABOR ORGANIZATION,
BY DISCRIMINATING IN REGARD TO EMPLOYMENT; (B) FROM REFUSING TO BARGAIN
COLLECTIVELY WITH THE N.M.U.; AND (C) FROM INTERFERING WITH,
RESTRAINING, OR COERCING ITS EMPLOYEES IN ANY WAY IN THE EXERCISE OF
THEIR RIGHT TO ORGANIZE AND BARGAIN COLLECTIVELY.  IN ADDITION, AND "IN
ORDER TO EFFECTUATE THE POLICIES OF THE ACT," THE ORDER INCLUDED THE
FOLLOWING AFFIRMATIVE REQUIREMENTS:  (A) THAT PETITIONER BARGAIN WITH
THE N.M.U.; (B) THAT IT REINSTATE WITH BACK PAY THE FIVE MEN
DISCHARGED; (C) THAT, UPON APPLICATION, IT OFFER IMMEDIATE
REINSTATEMENT TO THE JULY 25TH STRIKERS; AND (D) THAT IT POST NOTICES
OF ITS INTENTION TO CONFORM TO THIS ORDER. 

PETITIONER SOUGHT TO HAVE THIS ORDER SET ASIDE BY THE CIRCUIT COURT
OF APPEALS.  THE CIRCUIT COURT, HOWEVER, SITTING EN BANC, AND WITH ONE
JUDGE DISSENTING, ENTERED A DECREE ENFORCING THE ORDER WITH A SINGLE
MINOR MODIFICATION.  FN7  120 F.2D 505.  WE GRANTED CERTIORARI BECAUSE
OF THE IMPORTANCE OF THE MATTERS INVOLVED, AND BECAUSE OF AN ASSERTED
CONFLICT WITH DECISIONS OF THIS COURT AND OF OTHER CIRCUIT COURTS OF
APPEALS. 

PETITIONER'S CONTENTIONS IN THIS COURT ARE:  (1) THAT THE REFUSAL BY
THE BOARD TO PERMIT A COMPANY REPRESENTATIVE ABOARD THE S.S. CITY OF
HOUSTON DURING THE VOTING VITIATED THE ENTIRE ELECTION AND
CERTIFICATION PROCEEDING AND ABSOLVED PETITIONER OF ANY DUTY UNDER THE
ACT TO BARGAIN WITH THE N.M.U.; (2) THAT THE EMPLOYMENT OF THE SEAMEN
INVOLVED AUTOMATICALLY TERMINATED WHEN THEY SIGNED OFF THE SHIPPING
ARTICLES IN PHILADELPHIA, SO THAT THEY CANNOT BE SAID TO HAVE BEEN
"DISCHARGED"; AND (3) THAT PARTICIPATION IN THE HOUSTON STRIKE BY THE
DISCHARGED SEAMEN WAS MISCONDUCT OF SUCH A CHARACTER THAT THE BOARD
CANNOT ORDER THEIR REINSTATEMENT. 

THE FIRST TWO OF THESE ARGUMENTS ARE WITHOUT SUBSTANCE.  THE BOARD
ENJOYS A WIDE DISCRETION IN DETERMINING THE PROCEDURE NECESSARY TO
INSURE THE FAIR AND FREE CHOICE OF BARGAINING REPRESENTATIVES BY
EMPLOYEES.  LABOR BOARD V. WATERMAN STEAMSHIP CORP., 309 U.S. 206, 226;
LABOR BOARD V. FALK CORPORATION, 308 U.S. 453, 458.  IT IS WHOLLY
REASONABLE TO REMOVE ANY POSSIBILITY OF INTIMIDATION BY CONDUCTING THE
ELECTION IN THE ABSENCE OF THE EMPLOYER'S REPRESENTATIVES.  WITH
RESPECT TO WHETHER THE FIVE MEN IN QUESTION WERE ACTUALLY DISCHARGED
UPON THE SHIP'S RETURN TO PHILADELPHIA, PETITIONER CONCEDES THAT THE
FORMAL SIGNING OFF OF THE SHIPPING ARTICLES WAS NOT CONCLUSIVE.  THE
TENURE OF THEIR EMPLOYMENT MUST BE DETERMINED IN THE LIGHT OF ALL THE
EVIDENCE CONCERNING PETITIONER'S EMPLOYMENT CUSTOMS AND PRACTICES. 
LABOR BOARD V. WATERMAN STEAMSHIP CORP., 309 U.S. 206, 218.  THE
ARGUMENT HERE THEREFORE COMES TO THIS, THAT THIS RECORD DOES NOT
WARRANT A FINDING THAT THE TENURE OF EMPLOYMENT SURVIVED THE
TERMINATION OF THE SHIPPING ARTICLES.  AN EXAMINATION OF THE RECORD
CONVINCES US THAT THE CONCURRENT FINDING OF THE BOARD AND THE CIRCUIT
COURT ON THIS QUESTION SHOULD NOT BE DISTURBED. 

THE SITUATION, THEN, IS ONE IN WHICH AN EMPLOYER INDULGES IN AN
UNFAIR LABOR PRACTICE, A STRIKE RESULTS, AND SEVERAL MEN ARE DISCHARGED
FOR PARTICIPATING IN THE STRIKE.  IF THERE WERE NO MORE TO THE CASE,
AND THE BOARD FOUND THAT IT WOULD SERVE TO EFFECTUATE THE POLICIES OF
THE ACT TO REINSTATE THE STRIKERS, AN ORDER REQUIRING REINSTATEMENT
WOULD UNDOUBTEDLY BE ENFORCEABLE.  LABOR BOARD V. STACKPOLE CARBON CO.,
105 F.2D 167.  BUT THERE IS MORE TO THIS CASE.  THE STRIKE WAS
CONDUCTED BY SEAMEN ON BOARD A VESSEL AND AWAY FROM HOME PORT.  THE
QUESTION IS WHETHER THIS CIRCUMSTANCE RENDERS IT AN ABUSE OF DISCRETION
FOR THE BOARD TO ORDER THE REINSTATEMENT OF THE STRIKERS.  WE THINK
THAT IT DOES. 

EVER SINCE MEN HAVE GONE TO SEA, THE RELATIONSHIP OF MASTER TO SEAMAN
HAS BEEN ENTIRELY DIFFERENT FROM THAT OF EMPLOYER TO EMPLOYEE ON LAND. 
THE LIVES OF PASSENGERS AND CREW, AS WELL AS THE SAFETY OF SHIP AND
CARGO, ARE ENTRUSTED TO THE MASTER'S CARE.  EVERY ONE AND EVERY THING
DEPEND ON HIM.  HE MUST COMMAND AND THE CREW MUST OBEY.  AUTHORITY
CANNOT BE DIVIDED.  THESE ARE ACTUALITIES WHICH THE LAW HAS ALWAYS
RECOGNIZED.  ON THE ONE HAND, IT HAS IMPOSED NUMEROUS PROHIBITIONS
AGAINST CONDUCT BY SEAMEN WHICH DESTROYS OR IMPAIRS THIS AUTHORITY.  WE
SHALL CONSIDER IN A MOMENT THE NATURE AND SCOPE OF THE CRIMINAL
SANCTIONS IMPOSED IN CASE OF REVOLT AND MUTINY.  BUT IT IS WORTH NOTING
HERE THAT THE FORM OF THE "SHIPPING ARTICLES," WHICH THE MASTER AND
EVERY MEMBER OF THE CREW MUST SIGN PRIOR TO THE VOYAGE, HAS BEEN
CAREFULLY PRESCRIBED BY CONGRESS, AND THAT THESE ARTICLES CONTAIN THIS
PROMISE:  "AND THE SAID CREW AGREE  ...  TO BE OBEDIENT TO THE LAWFUL
COMMANDS OF THE SAID MASTER  ...  AND THEIR SUPERIOR OFFICERS IN
EVERYTHING RELATING TO THE VESSEL, AND THE STORES AND CARGO THEREOF,
WHETHER ON BOARD, IN BOATS, OR ON SHORE ...  "  U.S.C., TITLE 46 SECS.
564, 713.  ON THE OTHER HAND, WORKERS AT SEA HAVE BEEN THE
BENEFICIARIES OF EXTRAORDINARY LEGISLATIVE SOLICITUDE, UNDOUBTEDLY
PROMPTED BY THE LIMITS UPON THEIR ABILITY TO HELP THEMSELVES.  THE
STATUTES OF THE UNITED STATES CONTAIN ELABORATE REQUIREMENTS WITH
RESPECT TO SUCH MATTERS AS THEIR MEDICINES, CLOTHING, HEAT, HOURS AND
WATCHES, WAGES, AND RETURN TRANSPORTATION TO THIS COUNTRY IF DESTITUTE
ABROAD.  U.S.C., TITLE 46, SECS. 651-692, 1131.  IT IS IN THIS SETTING
OF FACT AND LAW THAT WE MUST TEST THE VALIDITY OF THE BOARD'S ORDER OF
REINSTATEMENT.    PETITIONER CONTENDS THAT THE STRIKE ABOARD THE CITY
OF FORT WORTH AT THE DOCK IN HOUSTON WAS MUTINY AND VIOLATED SECS. 292
AND 293 OF THE CRIMINAL CODE.  THOSE SECTIONS PROVIDE: 

SEC. 292.  INCITING REVOLT OR MUTINY ON SHIPBOARD.  "WHOEVER, BEING
OF THE CREW OF A VESSEL OF THE UNITED STATES, ON THE HIGH SEAS, OR ON
ANY OTHER WATERS WITHIN THE ADMIRALTY AND MARITIME JURISDICTION OF THE
UNITED STATES, ENDEAVORS TO MAKE A REVOLT OR MUTINY ON BOARD SUCH
VESSEL, OR COMBINES, CONSPIRES, OR CONFEDERATES WITH ANY OTHER PERSON
ON BOARD TO MAKE SUCH REVOLT OR MUTINY, OR SOLICITS, INCITES, OR STIRS
UP ANY OTHER OF THE CREW TO DISOBEY OR RESIST THE LAWFUL ORDERS OF THE
MASTER OR OTHER OFFICER OF SUCH VESSEL, OR TO REFUSE OR NEGLECT THEIR
PROPER DUTY ON BOARD THEREOF, OR TO BETRAY THEIR PROPER TRUST, OR
ASSEMBLES WITH OTHERS IN A TUMULTUOUS AND MUTINOUS MANNER, OR MAKES A
RIOT ON BOARD THEREOF, OR UNLAWFULLY CONFINES THE MASTER OR OTHER
COMMANDING OFFICER THEREOF, SHALL BE FINED NOT MORE THAN $1,000 OR
IMPRISONED NOT MORE THAN FIVE YEARS OR BOTH."  U.S.C., TITLE 18, SEC.
483. 

SEC. 293.  REVOLT OR MUTINY ON SHIPBOARD.  "WHOEVER, BEING OF THE
CREW OF A VESSEL OF THE UNITED STATES, ON THE HIGH SEAS, OR ON ANY
OTHER WATERS WITHIN THE ADMIRALTY AND MARITIME JURISDICTION OF THE
UNITED STATES, UNLAWFULLY AND WITH FORCE, OR BY FRAUD, OR INTIMIDATION,
USURPS THE COMMAND OF SUCH VESSEL FROM THE MASTER OR OTHER LAWFUL
OFFICER IN COMMAND THEREOF, OR DEPRIVES HIM OF AUTHORITY AND COMMAND ON
BOARD, OR RESISTS OR PREVENTS HIM IN THE FREE AND LAWFUL EXERCISE
THEREOF, OR TRANSFERS SUCH AUTHORITY AND COMMAND TO ANOTHER NOT
LAWFULLY ENTITLED THERETO, IS GUILTY OF A REVOLT AND MUTINY, AND SHALL
BE FINED NOT MORE THAN $2,000 AND IMPRISONED NOT MORE THAN TEN YEARS." 
U.S.C., TITLE 18, SEC. 484. 

THE BOARD'S DEFENSE TO THIS CONTENTION IS TWO-FOLD.  IT ARGUES,
FIRST, THAT THE CONDUCT OF THE STRIKERS DID NOT VIOLATE EITHER OF THESE
THEIR REINSTATEMENT. 

FIRST.  WE THINK THAT THE STRIKE ABOARD THE CITY OF FORT WORTH ON
JULY 18 WAS IN VIOLATION OF SECS. 292 AND 293.  IT MAY HARDLY BE
DISPUTED THAT EACH OF THE STRIKERS RESISTED THE CAPTAIN AND OTHER
OFFICERS IN THE FREE AND LAWFUL EXERCISE OF THEIR AUTHORITY AND
COMMAND, WITHIN THE MEANING OF SEC. 293, OR THAT THEY COMBINED AND
CONSPIRED TO THAT END, WITHIN THE MEANING OF SEC. 292.  DELIBERATELY
AND PERSISTENTLY THEY DEFIED DIRECT COMMANDS TO PERFORM THEIR DUTIES IN
MAKING READY FOR THE DEPARTURE FROM PORT.  IT IS TRUE THAT THEY DID NOT
ENGAGE IN VIOLENCE OR PREVENT THE OTHER MEN AND OFFICERS FROM
PROCEEDING WITH PREPARATIONS FOR THE VOYAGE.  FN8  BUT SHORT OF THAT,
THEY DID WHAT THEY COULD TO PREVENT THE SHIP FROM SAILING.  IN THE
WORDS OF THE STRIKER TRACEY, HAD THEY NOT BELIEVED THAT THEIR DEMANDS
HAD BEEN SATISFIED, "WE WOULD STILL BE SITTING THERE."  THERE IS NO
DOUBT THAT THEY UNDERTOOK TO IMPOSE THEIR WILL UPON THE CAPTAIN AND
OFFICERS. 

NONE OF THESE FACTS IS DENIED BY THE RESPONDENTS OR BY THE CIRCUIT
COURT.  FN9  INDEED IT IS ADMITTED THAT, HAD THE STRIKE OCCURRED ON THE
HIGH SEAS, THE PARTICIPANTS WOULD HAVE BEEN GUILTY OF MUTINY.  BUT A
DISTINCTION IS SAID TO LIE BETWEEN STRIKES AT SEA AND AT DOCK.  TO
DETERMINE THE VALIDITY OF THIS DISTINCTION WE TURN FIRST TO THE WORDS
OF THE STATUTE.  THEY ARE PLAIN ENOUGH: "WHOEVER, BEING OF THE CREW OF
A VESSEL OF THE UNITED STATES, ON THE HIGH SEAS, OR ON ANY OTHER WATERS
WITHIN THE ADMIRALTY AND MARITIME JURISDICTION OF THE UNITED STATES,"
ETC.  IT HAS LONG BEEN SETTLED THAT THE ADMIRALTY AND MARITIME
JURISDICTION OF THE UNITED STATES INCLUDES ALL NAVIGABLE WATERS WITHIN
THE COUNTRY.  THE GENESEE CHIEF, 12 HOW.  443.  FN10  THE WATER IN THE
HARBOR OF HOUSTON IS CERTAINLY NAVIGABLE, AND A BOAT AT DOCK THERE IS
OBVIOUSLY WITHIN THE TERRITORIAL LIMITS OF THE UNITED STATES.  THE
WORDS OF THE STATUTE ALONE, THEREFORE, DO NOT WARRANT AN EXCEPTION IN
THE CASE OF A VESSEL SITUATED AS THE CITY OF FORT WORTH WAS WHEN THE
STRIKE OCCURRED. 

NOR ARE WE REFERRED TO THE DECISION OF ANY COURT IN WHICH SUCH AN
EXCEPTION HAS BEEN IMPLIED.  UNDER THE ORIGINAL MUTINY ACT OF 1970,
FN11  JUSTICE STORY HELD WITHOUT HESITATION THAT A REFUSAL TO WORK
WHILE A VESSEL WAS IN AN AMERICAN HARBOR WAS A VIOLATION OF THE
STATUTE.  FN12  THE ACT OF 1790 WAS SUPPLANTED IN 1835 BY A STATUTE
WHICH, WITH ONLY MINOR CHANGES, NOW APPEARS AS SECS. 292 AND 293 OF THE
CRIMINAL CODE, SET OUT ABOVE.  FN13  SINCE 1835, WHENEVER THE QUESTION
HAS ARISEN, THE COURTS HAVE HELD THAT A MUTINY MAY OCCUR IN A HARBOR,
EITHER FOREIGN OR DOMESTIC, AS WELL AS AT SEA.  FN14  IT IS TRUE,
HOWEVER, THAT IN NONE OF THESE CASES DOES IT EXPRESSLY APPEAR THAT THE
VESSEL WAS TIED TO A DOCK, AS WAS THE CITY OF FORT WORTH IN THIS CASE. 
AND IN THE REES CASE, THE COURT SPECIFICALLY RESERVED THE QUESTION OF
WHETHER THE MUTINY ACT BARS A STRIKE ON BOARD A VESSEL SO SITUATED.  95
F.2D 784, AT 792. 

IT WAS THEREFORE STRICTLY ACCURATE FOR THE CIRCUIT COURT OF APPEALS TO
OBSERVE THAT "THE QUESTION OF THE RIGHT OF SEAMEN TO STRIKE UNDER THE
CIRCUMSTANCES OF THE CASE BEFORE US IS STILL AN OPEN ONE."  ON THIS
ASSUMPTION, HOWEVER, IT PROCEEDED TO CONCLUDE THAT THE NECESSITY FOR
ABSOLUTE AUTHORITY IN THE MASTER IS SO CONSIDERABLY DIMINISHED WHEN THE
SHIP IS MOORED IN A "SAFE" PORT THAT A STRIKE IN SUCH CIRCUMSTANCES
SHOULD NOT BE HELD TO VIOLATE THE ACT.  THIS THEORY HAS BEEN REGARDED
WITH FAVOR BY A NUMBER OF COURTS AND COMMENTATORS  FN15  AND IS SAID TO
CONFORM MORE CLOSELY TO CHANGED CONCEPTIONS WITH RESPECT TO THE FREEDOM
OF WORKERS ON LAND OR SEA TO ORGANIZE, TO BARGAIN, AND TO USE ECONOMIC
WEAPONS TO ENFORCE THEIR DEMANDS. 

THE DIFFICULTY WITH THE CONTENTION IS THAT IT IGNORES THE PLAIN
CONGRESSIONAL MANDATE THAT A REBELLION BY SEAMEN AGAINST THEIR OFFICERS
ON BOARD A VESSEL ANYWHERE WITHIN THE ADMIRALTY AND MARITIME
JURISDICTION OF THE UNITED STATES IS TO BE PUNISHED AS MUTINY.  IF THIS
MANDATE IS TO BE CHANGED, IT MUST BE CHANGED BY CONGRESS, AND NOT BY
THE COURTS.  IF FURTHER PROOF BE NEEDED OF A CONGRESSIONAL BELIEF THAT
THE REQUIREMENTS OF DISCIPLINE DURING A VOYAGE DO NOT VARY WITH EACH
CHANGE IN CIRCUMSTANCE, IT MAY BE FOUND IN THE SHIPPING ARTICLES TO
WHICH WE HAVE ALREADY REFERRED.  FOR IN THOSE ARTICLES THE MEMBERS OF
THE CREW ARE OBLIGED TO PROMISE TO OBEY LAWFUL COMMANDS "WHETHER ON
BOARD, IN BOATS, OR ON SHORE."  AND BEFORE A SEAMAN'S CERTIFICATE IS
ISSUED BY THE BUREAU OF MARINE INSPECTION AND NAVIGATION THE APPLICANT
MUST TAKE AN OATH TO "  ...  CARRY OUT THE THE LAWFUL ORDERS OF MY
SUPERIOR OFFICERS ON SHIPBOARD."  FN16  THE LOWER COURT EXPRESSED THE
OPINION, "UPON REASON, HOWEVER,  ...  THERE IS NO SOUND BASIS FOR
DEPRIVING SEAMEN OF THIS RIGHT (TO STRIKE) WHEN, AS HERE, THEIR VESSEL
IS MOORED TO THE DOCK IN A SAFE DOMESTIC PORT."  BUT THE SOUNDNESS OR
UNSOUNDNESS OF THE REASONING IS FOR THE DETERMINATION OF CONGRESS.  AS
RECENTLY AS 1939, TWO BILLS WERE INTRODUCED IN THE HOUSE OF
REPRESENTATIVES FOR THE PURPOSE OF LIMITING THE SCOPE OF SECS. 292 AND
293 TO VESSELS "UNDER WAY ON THE HIGH SEAS."  H.R. 3427, 3428, 76TH
CONGRESS, 1ST SESSION.  THE UNITED STATES MARITIME COMMISSION
COMMUNICATED TO THE HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES
ITS FIRM OBJECTION TO THE MEASURES,  FN17  AND THEY WERE NEVER
ENACTED.  WHEN THE LEGISLATIVE PURPOSE IS SO PLAIN, WE CANNOT ASSUME TO
DO THAT WHICH CONGRESS HAS REFUSED TO DO. 

IN ANY EVENT, A SWEEPING REQUIREMENT OF OBEDIENCE THROUGHOUT THE
COURSE OF A VOYAGE IS CERTAINLY NOT WITHOUT BASIS IN REASON.  THE
STRATEGY OF DISCIPLINE IS NOT SIMPLE.  THE MAINTENANCE OF AUTHORITY
HINGES UPON A DELICATE COMPLEX OF HUMAN FACTORS, AND CONGRESS MAY VERY
SENSIBLY HAVE CONCLUDED THAT A MASTER WHOSE ORDERS ARE SUBJECT TO THE
CREW'S VETO IN PORT CANNOT ENFORCE THEM AT SEA.  MOREOVER, IT IS BY NO
MEANS CLEAR THAT A SHIP MOORED TO A DOCK IS "SAFE" IF THE CREW REFUSES
TO TEND IT, AS THE STRIKERS DID AT HOUSTON.  AT THE VERY LEAST, STEAM
MUST BE MAINTAINED TO PROVIDE LIGHT AND FIRE PROTECTION.  FN18  THE
DAMAGE TO THE NORMANDIE IS GRIM ENOUGH PROOF THAT THE HAZARD OF FIRE IS
EVER PRESENT.  FN19  IT IS NOT ENOUGH TO SAY THAT, IN THE CASE BEFORE
US, THE STRIKERS DID NOT PREVENT THESE PRECAUTIONS FROM BEING TAKEN;
ONLY THE EFFORTS OF OTHERS AVERTED THE DANGERS TO WHICH THEY OPENED THE
DOOR. 

WE CONCLUDE THAT THE CIRCUIT COURT OF APPEALS ERRED IN HOLDING THAT
THE STRIKE AT HOUSTON DID NOT VIOLATE SECS. 292 AND 293. 

SECOND.  ASSUMING THAT THE STRIKE DID VIOLATE THESE SECTIONS, THE
BOARD CONTENDS THAT THE REINSTATEMENT PROVISIONS OF ITS ORDER WERE
NEVERTHELESS VALID.  SECTION 10(C) OF THE NATIONAL LABOR RELATIONS ACT
PERMITS THE BOARD TO REQUIRE AN EMPLOYER WHO HAS COMMITTED AN UNFAIR
LABOR PRACTICE TO TAKE "SUCH AFFIRMATIVE ACTION, INCLUDING
REINSTATEMENT OF EMPLOYEES  ...  , AS WILL EFFECTUATE THE POLICIES OF
THE ACT."  THIS AUTHORIZATION IS OF CONSIDERABLE BREADTH, AND THE
COURTS MAY NOT LIGHTLY DISTURB THE BOARD'S CHOICE OF REMEDIES.  BUT IT
IS ALSO TRUE THAT THIS DISCRETION HAS ITS LIMITS, AND WE HAVE ALREADY
BEGUN TO DEFINE THEM.  LABOR BOARD V. FANSTEEL METALLURGICAL CORP., 306
U.S. 240; REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7.  A COMPLETE
DEFINITION OF COURSE WAS NOT AND COULD NOT HAVE BEEN ATTEMPTED IN THOSE
CASES.  NOR WILL IT BE ATTEMPTED HERE.  IT IS SUFFICIENT FOR THIS CASE
TO OBSERVE THAT THE BOARD HAS NOT BEEN COMMISSIONED TO EFFECTUATE THE
POLICIES OF THE LABOR RELATIONS ACT SO SINGLE-MINDEDLY THAT IT MAY
WHOLLY IGNORE OTHER AND EQUALLY IMPORTANT CONGRESSIONAL OBJECTIVES. 
FREQUENTLY THE ENTIRE SCOPE OF CONGRESSIONAL PURPOSE CALLS FOR CAREFUL
ACCOMMODATION OF ONE STATUTORY SCHEME TO ANOTHER, AND IT IS NOT TOO
MUCH TO DEMAND OF AN ADMINISTRATIVE BODY THAT IT UNDERTAKE THIS
ACCOMMODATION WITHOUT EXCESSIVE EMPHASIS UPON ITS IMMEDIATE TASK. 

THIS WAS THE KIND OF CONSIDERATION FOR WHICH THE PRESENT CASE
CALLED.  TO BOLSTER ITS CLAIM THAT IT RESPONDED TO THIS CALL, THE BOARD
RELIES UPON WHAT IT ASSERTS TO HAVE BEEN THE "TECHNICAL" NATURE OF THE
VIOLATION OF SECS. 292 AND 293.  SPECIFICALLY, IT POINTS TO THE
COMPARATIVE SAFETY OF THE SHIP WHEN MOORED TO THE DOCK, THE ABSENCE OF
VIOLENCE, AND THE DOUBLE CHARACTER OF THE SHIP AS THE STRIKERS' PLACE
OF EMPLOYMENT AND THEIR HOME DURING THE COURSE OF THE VOYAGE.  WHILE WE
HAVE NO DOUBT THAT THE DANGER TO THE VESSEL WAS CONSIDERABLY LESS THAN
IT WOULD HAVE BEEN HAD THE STRIKE OCCURRED AT SEA, WE HAVE ALREADY
INDICATED THAT IT WAS CERTAINLY PRESENT AND THAT CONSIDERATIONS OTHER
THAN IMMEDIATE DANGER TO THE SHIP REQUIRE MAINTENANCE OF DISCIPLINE
THROUGHOUT THE VOYAGE.  LIKEWISE, THE ABSENCE OF VIOLENCE WAS A
FORTUNATE FEATURE OF THE AFFAIR, BUT THE FLOUTING OF THE CAPTAIN'S
AUTHORITY WAS NEVERTHELESS DELIBERATE AND COMPLETE.  FINALLY, FOR THESE
STRIKERS TO REMAIN ABOARD THE SHIP WAS INDEED AN ACT OF VERY DIFFERENT
SIGNIFICANCE THAN FOR STRIKERS AT AN INDUSTRIAL PLANT TO REMAIN INSIDE
A FACTORY.  BUT IN ONE RESPECT AT LEAST THE COMPARISON IS UNFAVORABLE
TO THE STRIKERS HERE.  AS A PRACTICAL MATTER, THE CITY OF FORT WORTH
WAS DEFINITELY WRESTED FROM THE CONTROL OF ITS OFFICERS.  IN AN
INDUSTRIAL PLANT THE EMPLOYER IS CONFRONTED ONLY WITH THE NECESSITY OF
PLACING NEW MEN AT THE MACHINES.  BUT UNDER THE LAW PETITIONER WAS
REQUIRED TO FURNISH LIVING QUARTERS TO ANY NEW CREW WHOM IT MIGHT HAVE
HIRED FOR THE RETURN VOYAGE TO PHILADELPHIA.  THIS MEANT THE REMOVAL OF
THE STRIKERS FROM THEIR QUARTERS AS WELL AS THEIR POSTS OF DUTY.  IT IS
DIFFICULT TO IMAGINE THAT THEY WOULD HAVE SURRENDERED THEIR JOBS AND
THEIR QUARTERS WITHOUT A STRUGGLE.  THEY ASSERTED THEIR RIGHT TO OCCUPY
THE QUARTERS AND TO EAT THE FOOD WHICH THE MASTER WAS REQUIRED TO
FURNISH THEM AS MEMBERS OF THE CREW, AND YET TO REFUSE TO WORK OR TO
OBEY HIS ORDERS.  SEE UNITED STATES V. ALBERS, 115 F.2D 833, AT 836. 
IN FACT, AS WE HAVE NOTED, THEY INTENDED, ACCORDING TO THE WITNESS
TRACEY, TO "STILL BE SITTING THERE" IF PETITIONER HAD NOT CAPITULATED
TO THEIR DEMANDS. 

WE CANNOT IGNORE THE FACT THAT THE STRIKE WAS UNLAWFUL FROM ITS VERY
INCEPTION.  IT DIRECTLY CONTRAVENED THE POLICY OF CONGRESS AS EXPRESSED
IN SECS. 292 AND 293, AND IT WAS MORE THAN A "TECHNICAL" VIOLATION OF
THOSE PROVISIONS.  CONSEQUENTLY, AND DESPITE THE INITIAL UNFAIR LABOR
PRACTICE WHICH CAUSED THE STRIKE, WE HOLD THAT THE REINSTATEMENT
PROVISIONS OF THE ORDER EXCEEDED THE BOARD'S AUTHORITY TO MAKE SUCH
REQUIREMENTS "AS WILL EFFECTUATE THE POLICIES OF THE ACT."  FN20 

IT SHOULD BE STRESSED THAT THE VIEW WE HAVE TAKEN DOES NOT PREVENT
THE REDRESS OF GRIEVANCES UNDER THE ACT.  AT ANY TIME FOLLOWING THE
CERTIFICATION OF THE N.M.U. IN JANUARY, 1938, THE UNION AND THE BOARD
COULD HAVE SECURED THE ASSISTANCE OF THE COURTS IN FORCING PETITIONER
TO BARGAIN.  THE IMPORTANCE OF SEEKING SUCH ASSISTANCE PROMPTLY IS
STRIKINGLY ILLUSTRATED IN THIS CASE.  FN21 HAD THE UNION AND THE BOARD
DONE SO, THE UNFORTUNATE OCCURRENCE AT HOUSTON MIGHT HAVE BEEN
AVERTED.  AND WHAT IS MORE, NOTHING THAT WE HAVE SAID WOULD PREVENT THE
UNION FROM STRIKING, PICKETING OR RESORTING TO ANY OTHER MEANS OF SELF
HELP, SO LONG AS THE TIME AND PLACE IT CHOOSES DO NOT COME WITHIN THE
EXPRESS PROHIBITION OF CONGRESS. 

THE CASE IS REMANDED TO THE CIRCUIT COURT OF APPEALS WITH
INSTRUCTIONS TO LIMIT ITS DECREE OF ENFORCEMENT TO THOSE PROVISIONS OF
THE BOARD'S ORDER REQUIRING PETITIONER TO BARGAIN WITH THE N.M.U. AND
TO POST NOTICES TO THAT EFFECT, BUT TO ELIMINATE THE OTHER PROVISIONS
OF THE ORDER.  REVERSED. 

FN1  WARREN, TRACEY, PFUHL, SMITH AND FERGUSON. 

FN2  CRASSAVAZ, REEVES, LATHAN, BURNS, HUGHES, NEELEY AND HOLT. 

FN3  THE BOARD FOUND THAT THE STRIKERS WERE AT NO TIME ORDERED TO
LEAVE THE SHIP.  IT IS TRUE THAT THREE OF THE OFFICERS TESTIFIED THAT
THEY HAD NEITHER GIVEN NOR HEARD ANY OF THE OFFICERS GIVE SUCH AN
ORDER.  BUT DESPITE A GREAT RELUCTANCE TO OVERTURN A FINDING ON SUCH A
PURE MATTER OF FACT, WE CANNOT SQUARE IT WITH THE AFFIRMATIVE AND
UNCONTRADICTED TESTIMONY OF TRACEY, ONE OF THE STRIKERS, THAT
PETITIONER'S AGENT IN HOUSTON BOARDED THE SHIP AT LEAST FOUR TIMES
DURING THE DAY, AT LEAST ONCE IN THE COMPANY OF THE CAPTAIN, ORDERED
THE STRIKERS TO LEAVE THE SHIP WITHIN THE NEXT HALF HOUR, AND ANNOUNCED
THAT HE WAS GOING TO BRING ON A NEW CREW (R. 140-141, 161-162).    FN4
SEE NOTE 1, SUPRA. 

FN5  THE BOARD'S FINDING ON THIS MATTER WAS THAT "TRACEY HAD BEEN
EMPLOYED CONTINUOUSLY OVER A PERIOD OF 16 MONTHS, FERGUSON FOR A PERIOD
OF 1 YEAR, PFUHL OVER A PERIOD OF 8 MONTHS, WARREN OVER A PERIOD OF 6
WEEKS, AND SMITH OVER A PERIOD OF 18 MONTHS.  EACH ROUND-TRIP VOYAGE OF
THE CITY OF FORT WORTH IS SCHEDULED TO TAKE ABOUT 25 DAYS."  (R. 27.) 

FN6  SEE NOTE 2, SUPRA. 

FN7  THE BOARD'S ORDER PERMITTED PETITIONER TO DEDUCT FROM THE BACK
PAY DUE ANY AMOUNTS THAT THE DISCHARGED MEN MIGHT HAVE EARNED DURING
THE PERIOD IN QUESTION, BUT REQUIRED IT TO REIMBURSE ANY PUBLIC WORK
RELIEF AGENCY FOR SUMS PAID TO ANY OF THE MEN DURING THAT TIME.  THE
LATTER PHASE OF THE ORDER WAS ELIMINATED BY THE CIRCUIT COURT OF
APPEALS ON THE AUTHORITY OF REPUBLIC STEEL CORP. V. LABOR BOARD, 311
U.S. 7.  THE BOARD RAISES NO OBJECTION TO THIS MODIFICATION OF ITS
ORDER. 

FN8  IT SHOULD BE NOTED, HOWEVER, THAT ACCORDING TO THE SECOND
ASSISTANT ENGINEER'S TESTIMONY, WHEN HE TOLD TRACEY THAT HE INTENDED TO
PUT THE STEAM ON DECK HIMSELF, TRACEY REPLIED, "YOU HAD BETTER NOT. 
YOU WILL BE SORRY."  NO EFFORT WAS MADE TO CARRY OUT THIS THREAT. 

FN9  THE BOARD DID NOT CONSIDER THE QUESTION OF WHETHER THE STRIKE
AMOUNTED TO MUTINY. 

FN10  ON THE JURISDICTION OF THE UNITED STATES OVER MEN AND VESSELS
IN FOREIGN WATERS, SEE UNITED STATES V. FLORES, 289 U.S. 137; UNITED
STATES V. ROBERTS, 27 FED. CAS. NO. 16,173(C.C.S.D.N.Y. 1843.) 

FN11  1 STAT. 112, SECS. 8 AND 12. 

FN12  UNITED STATES V. HAMILTON, 26 FED. CAS. NO. 15,291(C.C.D. MASS.
1818)(THE REPORT OF THIS CASE IS NOT ALTOGETHER CLEAR ON WHETHER THE
SHIP WAS AT ANCHOR IN SALEM BAY OR TIED TO A DOCK THERE, BUT THE FORMER
SEEMS TO HAVE BEEN THE CASE); UNITED STATES V. GARDNER, 25 FED. CAS.
NO. 15,188(C.C.D. MASS. 1829)(THIS REPORT ALSO FAILS TO REVEAL THE
EXACT SITUATION OF THE VESSEL IN BOSTON HARBOR AT THE TIME OF THE
STRIKE, BUT IT IS POSSIBLE THAT IT WAS MOORED TO THE DOCK SINCE BOSTON
WAS ITS HOME PORT AND IT WAS "ALL READY FOR SEA," AND PRESUMABLY THE
LOADING HAD JUST BEEN COMPLETED). 

FN13  4 STAT. 775, 776. 

FN14  UNITED STATES V. CASSEDY, 25 FED. CAS. NO. 14,745(C.C.D. MASS.
1837); UNITED STATES V. LYNCH, 26 FED. CAS. NO. 15,648(C.C.S.D. N.Y.
1843); UNITED STATES V. ROBERTS, 27 FED. CAS. NO. 16,173(C.C. S.D.N.Y.
1843); UNITED STATES V. STALY, 27 FED. CAS. NO. 16,374(C.C.D.R.I.
1846)(AT ANCHOR IN THE PROVIDENCE RIVER); UNITED STATES V. NYE, 27 FED.
CAS. NO. 15,906(C.C.D. MASS. 1855); HAMILTON V. UNITED STATES, 268 F.
15; REES V. UNITED STATES, 95 F.2D 784; UNITED STATES V. ALBERS, 115
F.2D 833. 

FN15  SEE THE BLAKE, 1 W. ROB.  73, 166 ENG. REP. 500; BUDDINGTON V.
SMITH, 13 CONN. 334; SAPIRO AND FRANK, MUTINY AT THE DOCK, 25 CAL. L.
REV. 41; ROTHSCHILD, THE LEGAL IMPLICATIONS OF A STRIKE BY SEAMEN, 45
YALE L.J. 1181; DECISION, 38 COL. L. REV. 1294.  BUT SEE MCLAUGHLIN,
NOTE, 18 ORE.  L. REV. 128; NOTE, LABOR DISPUTES IN THE MERCHANT
MARINE, 28 VA. L. REV. 79. 

FN16  SEE CURRENT "APPLICATION FOR SEAMEN'S CERTIFICATE," ISSUED BY
SHIPPING SECTION, BUREAU OF MARINE INSPECTION AND NAVIGATION,
DEPARTMENT OF COMMERCE.  AND SEE ALSO U.S.C., TITLE 46, SEC. 672(G). 

FN17  LETTER TO THE COMMITTEE DATED MARCH 27, 1939 AND SIGNED BY THE
CHAIRMAN OF THE COMMISSION, EMORY S. LAND: 

"UNDER DATE OF FEBRUARY 1, 1939, YOU REQUESTED THE VIEWS AND
RECOMMENDATIONS OF THE COMMISSION WITH RESPECT TO H.R. 3427 AND H.R.
3428. 

.         .         .         .         . 

"THE PROPOSED BILLS WOULD EMASCULATE THE PRESENT LAWS IN RESPECT OF
REVOLT OR MUTINY ON SHIPBOARD.  NO CONDUCT BY MEMBERS OF THE CREW OF A
VESSEL OF THE UNITED STATES WOULD CONSTITUTE A VIOLATION OF THE
STATUTES UNLESS THE VESSEL WERE UNDER WAY ON THE HIGH SEAS AND THEN
ONLY IF ACTUAL FORCE AS DISTINGUISHED FROM THE LESSER DEGREES OF REVOLT
OR MUTINY INVOLVING USE OF FRAUD OR INTIMIDATION WERE USED AGAINST THE
COMMANDING OFFICER.  MOREOVER, THE PROPOSED AMENDMENTS WOULD REDUCE THE
MAXIMUM PENALTIES BY SEVENTY-FIVE PER CENT. 

"IT IS THE COMMISSION'S CONSIDERED OPINION THAT THERE IS NO REASON
WHICH WOULD JUSTIFY THE CONGRESS IN LESSENING THE AUTHORITY OF THE
MASTERS ON BOARD VESSELS OF THE AMERICAN MERCHANT MARINE. 

     .         .         .         .      . 

"THE CRIMES OF ENDEAVORING TO INCITE TO REVOLT OR MUTINY, OR ACTUALLY
ACCOMPLISHING REVOLT OR MUTINY, MAY BE COMMITTED 'ON THE HIGH SEAS, OR
ON ANY OTHER WATERS WITHIN THE ADMIRALTY AND MARITIME JURISDICTION OF
THE UNITED STATES'.  IT IS WELL SETTLED THAT THIS INCLUDES ALL SUCH
OFFENSES COMMITTED ON THE VESSELS OF THE UNITED STATES ON NAVIGABLE
WATERS, INCLUDING THE PORTS, RIVERS AND HARBORS OF FOREIGN COUNTRIES. 
(UNITED STATES V. FLORES, 289 U.S. 137.) 

     .         .         .        .         . 

"SEAMEN WHO SIGN ARTICLES TO BECOME MEMBERS OF THE CREW OF A VESSEL
OF THE UNITED STATES ENTER INTO A RELATIONSHIP WHICH, IN THE NATURE OF
THINGS, IS DIFFERENT FROM THAT ASSUMED BY PERSONS EMPLOYED ON LAND. 
BOTH AS 'WARDS OF THE ADMIRALTY' UNDER THE GENERAL MARITIME LAW AND BY
SPECIAL ACTS OF CONGRESS APPLYING ONLY TO THEM, SEAMEN ENJOY MANY
BENEFITS NOT ACCORDED TO LAND WORKERS.  AT THE SAME TIME THEY MUST
ASSUME CERTAIN CORRELATIVE DUTIES NOT NECESSARY TO LAND OCCUPATIONS. 

"IN THE ECONOMIC SURVEY OF THE AMERICAN MERCHANT MARINE, THE
COMMISSION SAID (P. 46): 

"'THE SEA IS NO PLACE FOR DIVIDED AUTHORITY.  WHEN A MAN PUTS FOOT ON
THE DECK OF A SHIP, HE BECOMES PART OF A DISCIPLINED ORGANISM SUBJECT
TO THE NAVIGATION LAWS OF THE UNITED STATES.' 

"IT HAS BEEN CONTENDED THAT THE MUTINY STATUTES DO NOT APPLY UNLESS
THE VESSEL IS IN ACTUAL DANGER AND A FORTIORI THERE CAN BE NO MUTINY IN
A SAFE HARBOR.  THIS CONTENTION, NOT HAVING MET WITH SUCCESS IN THE
COURTS (REES V. UNITED STATES; HAMILTON V. UNITED STATES) IS BROUGHT
BEFORE THE LEGISLATIVE BRANCH OF THE GOVERNMENT IN THE FORM OF THE
PROPOSED AMENDMENTS.  THE FACT THAT A VESSEL MAY BE IN A SAFE HARBOR
DOES NOT, UNDER EXISTING LAW, AND IT IS SUBMITTED, SHOULD NOT, GIVE
SANCTION TO THE OFFENSES COVERED BY THE MUTINY STATUTES.  IT IS
APPARENT TO ALL THOSE FAMILIAR WITH THE SEA THAT NO VESSEL IS SAFE
UNLESS SHE IS, AMONG OTHER THINGS, MANNED BY A COMPETENT CREW WHICH
MEANS, IN SHORT, A CREW ALERT TO ITS DUTIES AND RESPONSIVE AT ALL TIMES
TO THE LAWFUL COMMANDS OF THE MASTER.  A CREW WHICH DOES NOT MEET THIS
TEST IS NOT COMPETENT AND MUST, MOREOVER, BE LACKING IN THAT MORALE
WHICH IS NECESSARY TO THE SAFE PRESERVATION OF THE SHIP, HER PASSENGERS
AND CARGO.  BECAUSE OF THE HUMAN FACTOR INVOLVED, IT IS DIFFICULT TO
SEE HOW THE MORALE OF A CREW WHICH FEELS THAT IT SHOULD BE FREE TO
DISOBEY THE LAWFUL COMMANDS OF THE MASTER WHEN THE VESSEL IS NOT 'UNDER
WAY ON THE HIGH SEAS', CAN BE REVIVED WITH AUTOMATIC REGULARITY WHEN
THE SHIP WEIGHS ANCHOR OR CROSSES AN IMAGINARY LINE TO THE HIGH SEAS. 

     .         .         .         .        . 

"CERTAINLY THERE NEED BE NO FEAR, ON THE PART OF MEMBERS OF AN
ORDERLY AND COMPETENT CREW, THAT THEY WILL RUN AFOUL OF EXISTING
STATUTES GOVERNING DISCIPLINE ON BOARD VESSELS OF THE UNITED STATES. 
AS THERE CAN BE NO ESCAPE FROM THE NECESSITIES OF SUCH DISCIPLINE,
THERE SHOULD BE NO DIMINUTION OF THE AUTHORITY REQUIRED TO MEET THOSE
NECESSITIES. 

"THE COMMISSION IS OF THE OPINION THAT THE PROPOSED AMENDMENTS, IF
ENACTED, WOULD BE HARMFUL TO THE DEVELOPMENT OF THE AMERICAN MERCHANT
MARINE AND IT IS, ACCORDINGLY, OPPOSED TO THE MEASURES. 

"THE COMMISSION IS ADVISED BY THE ACTING DIRECTOR OF THE BUREAU OF
THE BUDGET THAT THERE WOULD BE NO OBJECTION TO THE SUBMISSION OF THIS
REPORT TO YOUR COMMITTEE." 

FN18  MEMORANDUM TO SHIP OPERATORS DATED DECEMBER 10, 1941, BUREAU OF
MARINE INSPECTION, DEPARTMENT OF COMMERCE. 

FN19  N.Y. TIMES, FEB. 10, 1942, P. 1, COL. 8. 

FN20  CF. PENINSULAR & OCCIDENTAL S.S. CO. V. LABOR BOARD, 98 F.2D
411, 414. 

FN21  WE DO NOT QUESTION THE BOARD'S FINDING THAT PETITIONER REFUSED
TO BARGAIN WITH THE N.M.U. AFTER JANUARY 26, 1938.  BUT THE FINDINGS
AND THE RECORD INDICATE THAT THE UNION WAS NOT MARKEDLY DILIGENT.  THE
BOARD FOUND THAT ONE REQUEST FOR A CONFERENCE WAS MADE BY A UNION
REPRESENTATIVE AT HOUSTON "SHORTLY AFTER THE CERTIFICATION."  "IN LATE
JANUARY OR EARLY FEBRUARY," THE UNION'S BUSINESS AGENT IN PHILADELPHIA
MADE A SIMILAR REQUEST.  HE RENEWED IT "ABOUT THE MIDDLE OF FEBRUARY." 
"DURING THE NEXT MONTH" HE MADE TWO ATTEMPTS TO REPEAT HIS REQUEST BY
TELEPHONE.  FROM THAT TIME UNTIL AUGUST 18, A MONTH AFTER THE STRIKE AT
HOUSTON, HE MADE ONLY ONE OTHER ATTEMPT, THE DATE OF WHICH HE WAS
UNABLE TO FIX. 

MR. JUSTICE REED, DISSENTING: 

TO SUPPORT ITS JUDGMENT OF REVERSAL THIS COURT RELIES UPON THE
EMPLOYEES' VIOLATION OF SECS. 292 AND 293 OF THE CRIMINAL CODE AS
JUSTIFICATION FOR THE STEAMSHIP COMPANY'S DISCHARGE OF ITS SEAMEN.  IF
THE SEAMEN WERE DISCHARGED NOT FOR LABOR ACTIVITY BUT BECAUSE OF THE
COMMISSION OF SERIOUS CRIME, LABOR BOARD V. FANSTEEL CORP., 306 U.S.
240, WOULD BE AUTHORITY FOR THE COURT'S HOLDING.  IT WAS THERE DECIDED
THAT SEC. 2(3) OF THE LABOR ACT DID NOT PRESERVE A STRIKER'S
ELIGIBILITY FOR REINSTATEMENT BY THE BOARD UNDER SEC. 10(C), IF THE
STRIKER WAS DISCHARGED FOR REASONS OTHER THAN "UNION ACTIVITY OR
AGITATION FOR COLLECTIVE BARGAINING," E.G., CRIMINAL ACTS.  306 U.S. AT
255.  THE COURT RECOGNIZES THAT WHERE "AN EMPLOYER INDULGES IN AN
UNFAIR LABOR PRACTICE, A STRIKE RESULTS, AND SEVERAL MEN ARE DISCHARGED
FOR PARTICIPATING IN THE STRIKE," AND NOTHING MORE APPEARS, THE LABOR
BOARD MAY PROPERLY REINSTATE THE STRIKERS.  IT CONCLUDES, HOWEVER, THAT
WHERE THE STRIKE PROVOKED BY THE UNFAIR PRACTICES IS ITSELF UNLAWFUL,
THE BOARD, REGARDLESS OF THE CIRCUMSTANCES, LOSES ITS POWER TO
REINSTATE AFTER DISCHARGE.  THIS POSITION, WE THINK, UNDULY EXPANDS
JUDICIAL REVIEW OF THE BOARD'S DISCRETIONARY POWER OF REINSTATEMENT
UNDER SEC. 10(C) AND IS NOT SUPPORTED BY THE FANSTEEL DECISION. 

THIS COURT RECOGNIZED IN THE FANSTEEL CASE THAT THE BOARD HAD
DISCRETION OVER REINSTATEMENT.  306 U.S. 258.  IT WAS THOUGHT THAT,
HOWEVER WIDE THAT DISCRETION MIGHT BE, "ITS LIMITS WERE TRANSCENDED" IN
THAT CASE.  THE NINETYFIVE MEN IN FANSTEEL WERE DISCHARGED "FOR THE
SEIZURE AND RETENTION OF THE BUILDINGS."  306 U.S. 252.  BUT THOSE MEN
HELD THE BUILDINGS FROM FEBRUARY 17 UNTIL FEBRUARY 26.  THEY DISCOBEYED
A COURT INJUNCTION ORDER TO SURRENDER THE FACTORY, AND SUCCESSFULLY
RESISTED BY FORCE THE SHERIFF'S EFFORTS TO ENFORCE IT.  ONLY ON HIS
SECOND ATTEMPT, WITH AN INCREASED NUMBER OF DEPUTIES, DID THE SHERIFF
ACCOMPLISH THEIR EVICTION AND ARREST.  306 U.S. 248-49. 

NOTHING APPROACHING SUCH DISORDER OCCURRED HERE.  THE SEAMEN'S
CONDUCT DID NOT AFFECT THE SAFETY OF THE VESSEL.  THE ONLY EVIDENCE OF
VIOLATION OF THE STATUTES IS THAT THE ORDERS TO LOAD WERE IGNORED.  WE
MAY ASSUME, FOR THIS DISSENT, THAT THIS RESULTED IN A VIOLATION OF THE
CRIMINAL STATUTES.  THE BOARD FOUND THAT THE RESPONDENT REFUSED TO
BARGAIN COLLECTIVELY WITH THE UNION, THAT PRIMARILY THIS PRECIPITATED
THE STRIKE, AND THAT THE RESPONDENT WAS NOT WARRANTED IN DISCHARGING
ANY EMPLOYEE SOLELY BECAUSE OF THE STRIKE.  IT FURTHER FOUND THAT THE
STRIKERS DID NOT HOLD THE SHIP IN DEFIANCE OF THE OWNER NOR DID THEY
TRESPASS.  THE BOARD FOUND IN EACH INSTANCE THAT THE DISCHARGES WERE
NOT FOR DISOBEYING ORDERS BUT FOR STRIKING, FOR PEACEFULLY, ALBEIT
UNLAWFULLY, RESORTING TO SELF-HELP IN RETALIATION AGAINST DENIAL OF
THEIR RIGHTS.  FN1  ON THE BASIS OF THESE FINDINGS, SUPPORTED BY
SUBSTANTIAL EVIDENCE, THE BOARD EXERCISED ITS DISCRETION TO REINSTATE
THESE MEN. 

WE THINK THAT, UNDER THESE CIRCUMSTANCES, IT ACTED WITHIN ITS
AUTHORITY.  WE CAN SEE NO JUSTIFICATION FOR AN IRON RULE THAT A
DISCHARGE OF A STRIKER BY HIS EMPLOYER FOR SOME PARTICULAR, UNLAWFUL
CONDUCT IN FURTHERANCE OF A STRIKE IS SUFFICIENT TO BAR HIS
REINSTATEMENT AS A MATTER OF LAW.  FANSTEEL TEACHES THAT THERE ARE
EXTREMES OF CONDUCT WHICH LEAVE NO DISCRETION TO THE BOARD.  WE THINK
THAT THE ACTS HERE FALL ON THE OTHER SIDE OF THE LINE AND THAT THE
CIRCUIT COURT OF APPEALS PROPERLY SO DETERMINED. 

FN1  "THE EVIDENCE IS PLAIN THAT BOTH TRACEY AND FERGUSON WERE
DISCHARGED BECAUSE OF THE LEADING PARTS THEY PLAYED IN THE STRIKE. 
CHIEF ENGINEER NORTON TESTIFIED THAT HE DID NOT RECOMMEND FERGUSON'S
DISCHARGE MERELY BECAUSE HE HAD DISOBEYED ORDERS.  'I WOULD HAVE
OVERLOOKED THAT HAD HE TAKEN THE FIRES UNTIL WE GOT STRAIGHTENED OUT.' 
CAPTAIN RUDAN TESTIFIED THAT HE DISCHARGED BOTH THESE MEN UPON NORTON'S
COMPLAINT THAT 'THEY HAD BEEN ON WATCH AT THE TIME OF THE COMMENCEMENT
OF THIS WHAT I CONSIDER DISOBEDIENCE, AND IF THEY HAD GONE ON WATCH AT
THE TIME, THAT THE REST OF THE MEN PROBABLY WOULD HAVE FOLLOWED.  ...
'" 

"CAPTAIN RUDAN'S TESTIMONY MAKES IT ABUNDANTLY CLEAR THAT THE
MOTIVATING FACTOR IN THE RESPONDENT'S DECISION TO DISCHARGE PFUHL WAS
HIS PARTICIPATION IN THE STRIKE.  ... 

"WE ENTERTAIN NO DOUBT THAT AN EMPLOYEE'S INTOXICATION PROVIDES AMPLE
REASON FOR HIS DISCHARGE.  WE BELIEVE, HOWEVER, THAT THE RESPONDENT DID
NOT DISCHARGE WARREN FOR THIS REASON, BUT RATHER THAT IT SEIZED UPON
HIS DRINKING PROCLIVITIES TO RID ITSELF OF AN ACTIVE UNION OFFICER. 
... 

"ON CROSS-EXAMINATION SHERRY ADMITTED THAT SMITH WAS DISCHARGED
BECAUSE OF HIS PARTICIPATION IN THE STRIKE.  ...  "    MR. JUSTICE
BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY CONCUR IN THIS
DISSENT. 
..END :



MEMPHIS GAS CO. V. BEELER, 315 U.S. 649 


NO. 499.  ARGUED MARCH 6, 1942.  - DECIDED MARCH 30, 1942.  - AFFIRMED. 


1.  AN ATTACK UPON A STATE TAX UPON THE GROUND THAT IT INFRINGES A
TAXPAYER'S FEDERAL RIGHTS, PRIVILEGES AND IMMUNITIES, BUT WITHOUT
DRAWING IN QUESTION THE VALIDITY OF A STATE STATUTE, WILL NOT SUSTAIN
AN APPEAL UNDER JUD.  CODE SEC. 237(A).  P. 650. 

2.  A CHALLENGE OF THE VALIDITY OF A STATE STATUTE, FIRST MADE IN A
BRIEF FILED IN THE HIGHEST STATE COURT AND CERTIFIED TO THIS COURT AS
PART OF THE RECORD, WILL NOT SUPPORT AN APPEAL TO THIS COURT FROM A
JUDGMENT OF THE STATE COURT UPHOLDING THE STATUTE, IF THE APPELLANT
FAILS TO SHOW THAT UNDER THE STATE PRACTICE SUCH A CONTENTION CAN BE
AVAILED OF WHEN ADVANCED FOR THE FIRST TIME IN THE APPELLATE COURT.  P.
651. 

3.  A CORPORATION IS SUBJECT TO BE TAXED ON ITS INTANGIBLE PROPERTY
BY A STATE, NOT OF ITS ORIGIN, IN WHICH IT HAS ITS COMMERCIAL DOMICILE,
IF THE TAX DOES NOT INFRINGE THE COMMERCE CLAUSE.  P. 652. 

4.  A DECISION OF THE STATE SUPREME COURT BASED UPON A NON-FEDERAL
GROUND IS RE-EXAMINABLE BY THIS COURT ONLY TO MAKE CERTAIN THAT THE
GROUND IS NOT SO COLORABLE OR UNSUBSTANTIAL AS TO BE IN EFFECT AN
EVASION OF A CONSTITUTIONAL ISSUE.  P. 655. 

5.  NATURAL GAS WAS PIPED INTO A STATE BY A PIPELINE CORPORATION,
DELIVERED TO A LOCAL DISTRIBUTING CORPORATION AND SOLD BY THE LATTER TO
LOCAL CONSUMERS, UNDER AN ARRANGEMENT MAKING THE TWO COMPANIES PARTNERS
OR JOINT ENTERPRISES SHARING THE PROFITS.  HELD, THAT IT WAS COMPETENT
FOR THE STATE TO LEVY A TAX ON THE PIPELINE COMPANY MEASURED BY THE NET
PROFITS IT SO DERIVED.  P. 655. 

6.  A NON-DISCRIMINATORY STATE TAX UPON THE NET INCOME OF A FOREIGN
CORPORATION ENGAGED SOLELY IN INTERSTATE COMMERCE IS NOT FORBIDDEN BY
THE COMMERCE CLAUSE WHEN THE CORPORATION IS COMMERCIALLY DOMICILED IN
THE TAXING STATE AND THE INCOME IS DERIVED FROM WITHIN THE STATE AND
ATTRIBUTABLE TO BUSINESS DONE THERE.  P. 656. 

MEMPHIS NATURAL GAS CO. V. BEELER, ATTORNEY GENERAL OF TENNESSEE, ET
AL. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF TENNESSEE, WHICH
SUSTAINED A TAX AND REVERSED A DECREE OF THE TENNESSEE CHANCERY COURT
ENJOINING ITS COLLECTION.  THE APPEAL WAS DISMISSED FOR WANT OF
JURISDICTION BUT THE WRIT OF CERTIORARI WAS GRANTED. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER A TAX LAID PURSUANT TO SECS.
1316-1318 OF THE TENNESSEE CODE OF 1932 UPON THE MEMPHIS NATURAL GAS
COMPANY'S NET INCOME DERIVED FROM SALES OF NATURAL GAS IN TENNESSEE,
DURING THE YEARS 1932 TO 1935, VIOLATES THE COMMERCE CLAUSE. 

THE CASE COMES HERE BY APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF
TENNESSEE, WHICH SUSTAINED THE TAX AND REVERSED A DECREE OF THE
TENNESSEE CHANCERY COURT ENJOINING ITS COLLECTION.  APPELLANT CONTENDS
THAT THE CASE IS PROPERLY AN APPEAL, UNDER SEC. 237(A) OF THE JUDICIAL
CODE AS AMENDED, 28 U.S.C. SEC. 344(A), BECAUSE THE VALIDITY OF THE
TENNESSEE STATUTE AS APPLIED TO THE FACTS OF THIS CASE HAS BEEN DRAWN
IN QUESTION.  CF. DAHNKE-WALKER CO. V. BONDURANT, 257 U.S. 282.  BUT
APPELLANT'S BILL OF COMPLAINT, FILED IN THE CHANCERY COURT, ALLEGED
ONLY THAT THE ASSESSMENT OF THE TAX AND THE THREATENED LEVY VIOLATED
ITS RIGHTS UNDER THE COMMERCE CLAUSE.  OUR DECISIONS HAVE LONG SINCE
ESTABLISHED THAT AN ATTACK UPON A TAX ASSESSMENT OR LEVY, ON THE GROUND
THAT IT INFRINGES A TAXPAYER'S FEDERAL RIGHTS, PRIVILEGES OR
IMMUNITIES, WILL NOT SUSTAIN AN APPEAL UNDER SEC. 237(A).  JETT BROS.
DISTILLING CO. V. CITY OF CARROLLTON, 252 U.S. 1; MILLER V. CITY OF
DENVER, 290 U.S. 586; BALTIMORE NATIONAL BANK V. STATE TAX COMM'N, 296
U.S. 538; IRVINE V. SPAETH, 314 U.S. 575.  IT IS NOT ENOUGH THAT AN
APPELLANT COULD HAVE LAUNCHED HIS ATTACK UPON THE VALIDITY OF THE
STATUTE ITSELF AS APPLIED; IF HE HAS FAILED TO DO SO WE ARE WITHOUT
JURISDICTION OVER THE APPEAL.  THE JUDICIAL CODE WAS INTENDED TO
RESTRICT OUR OBLIGATORY APPELLATE JURISDICTION TO A NARROW CLASS OF
CASES, AND TO FORECLOSE AN APPEAL AS OF RIGHT WHENEVER THE PRESCRIBED
CONDITIONS HAVE NOT BEEN RIGOROUSLY FULFILLED. 

IT IS TRUE THAT WHEN THIS CASE REACHED THE SUPREME COURT OF TENNESSEE
THE APPELLANT INCLUDED IN ITS BRIEF, WHICH HAS BEEN CERTIFIED AS PART
OF THE RECORD HERE, A STATEMENT OF ITS LEGAL POSITION WHICH MIGHT SERVE
AS A CHALLENGE TO THE VALIDITY OF THE STATUTE.  BUT APPELLANT HAS
FAILED TO ESTABLISH THAT UNDER TENNESSEE PRACTICE SUCH A CONTENTION CAN
BE AVAILED OF IF ADVANCED FOR THE FIRST TIME IN THE APPELLATE COURT,
CF. PENNSYLVANIA R. CO. V. ILLINOIS BRICK CO., 297 U.S. 447, 462-63;
JACOBI V. ALABAMA, 187 U.S. 133, 135-36; MUTUAL LIFE INS. CO. V.
MCGREW, 188 U.S. 291, AND APPELLANT'S BURDEN IS TO SHOW AFFIRMATIVELY
THAT WE HAVE JURISDICTION.  CHICAGO, I. & L. RY. CO. V. MCGUIRE, 196
U.S. 128, 132; CF. LYNCH V. NEW YORK, 293 U.S. 52, 54-55; ENRIQUEZ V.
ENRIQUEZ (NO. 2), 222 U.S. 127, 130; BRADY V. TERMINAL RAILROAD ASSN.,
302 U.S. 678. 

THE FIRST OPINION RENDERED BY THE SUPREME COURT OF TENNESSEE MADE NO
MENTION OF ANY FEDERAL QUESTION, AND IN A SUPPLEMENTAL OPINION THE
COURT STATED ONLY THAT "THE CLAIM OF FEDERALLY PROTECTED RIGHT WAS
DECIDED ADVERSELY TO COMPLAINANT."  SINCE IT DOES NOT APPEAR THAT THE
VALIDITY OF THE STATUTE WAS EITHER DRAWN IN QUESTION OR PASSED UPON IN
THE TRIAL COURT OR DEEMED BY THE STATE SUPREME COURT TO BE IN ISSUE, WE
MUST DISMISS THE APPEAL FOR WANT OF JURISDICTION.  TREATING THE PAPERS
ON WHICH THE APPEAL WAS ALLOWED AS A PETITION FOR WRIT OF CERTIORARI,
AS REQUIRED BY SEC. 237(C) OF THE JUDICIAL CODE AS AMENDED, 28 U.S.C.
SEC. 344(C), CERTIORARI IS GRANTED, AND WE PROCEED TO CONSIDER THE
MERITS OF THE CASE. 

TAXPAYER, A DELAWARE CORPORATION, WAS ENGAGED DURING THE PERIOD IN
QUESTION IN THE BUSINESS OF PURCHASING NATURAL GAS IN LOUISIANA AND
TRANSPORTING IT THROUGH ITS PIPELINE TO POINTS IN TENNESSEE WHERE IT
DELIVERED THE GAS INTO THE PIPELINES OF TWO DISTRIBUTING COMPANIES -
MEMPHIS POWER & LIGHT CO. AND WEST TENNESSEE POWER & LIGHT CO. - WHICH
SOLD THE GAS TO LOCAL CONSUMERS.  TAXPAYER SELLS SOME OF ITS GAS IN
OTHER STATES, BUT IN TENNESSEE IT SELLS FROM 1 TO 2% OF ITS OUTPUT TO
THE WEST TENNESSEE POWER & LIGHT CO. AND DELIVERS 80% OR MORE TO THE
MEMPHIS COMPANY.  THAT COMPANY DISTRIBUTES IT TO CONSUMERS UNDER A
CONTRACT WITH TAXPAYER WHICH THE SUPREME COURT OF TENNESSEE HAS FOUND
TO BE A JOINT UNDERTAKING OF THE TWO COMPANIES WHEREBY TAXPAYER
FURNISHES GAS FROM ITS PIPELINE, THE MEMPHIS COMPANY FURNISHES
FACILITIES AND SERVICE FOR DISTRIBUTION AND SALE TO CONSUMERS, AND THE
PROCEEDS OF THE SALE, AFTER DEDUCTION OF SPECIFIED COSTS AND EXPENSES,
ARE DIVIDED BETWEEN THE TWO COMPANIES. 

TAXPAYER IS LICENSED BY THE STATE OF TENNESSEE TO DO BUSINESS THERE. 
IT MAINTAINS A STATUTORY OFFICE IN DELAWARE AND A STOCK TRANSFER OFFICE
IN NEW YORK CITY, BUT CONDUCTS NO BUSINESS AT EITHER.  IT MANAGES ITS
BUSINESS FROM ITS OFFICE IN MEMPHIS, TENNESSEE, WHERE IT KEEPS ITS
ACCOUNTS, PROVIDES FOR THE PAYROLL OF EMPLOYEES ON ITS LINE IN
TENNESSEE AND OTHER STATES, AND PREPARES AND SENDS OUT BILLS FOR GAS
DELIVERED IN TENNESSEE AND OTHER STATES.  IT HAS THUS ESTABLISHED A
COMMERCIAL DOMICILE IN TENNESSEE BY VIRTUE OF WHICH IT IS SUBJECT TO
TAXATION THERE UPON ITS INTANGIBLES, UNLESS SUCH TAXATION INFRINGES THE
COMMERCE CLAUSE.  WHEELING STEEL CORP. V. FOX, 298 U.S. 193. 

DOMESTIC CORPORATIONS DOING BUSINESS FOR PROFIT IN THE STATE AN ANNUAL
EXCISE TAX OF "THREE PER CENT. OF THE NET EARNINGS FOR THEIR PRECEDING
FISCAL YEAR  ...  ARISING FROM BUSINESS DONE WHOLLY WITHIN THE STATE,
EXCLUDING EARNINGS ARISING FROM INTERSTATE COMMERCE."  THE SUPREME
COURT OF TENNESSEE SUSTAINED THE TAX ON THE GROUND THAT IT WAS LAID ON
APPELLANT'S NET EARNINGS FROM THE DISTRIBUTION OF GAS UNDER ITS
CONTRACT WITH THE MEMPHIS COMPANY, WHICH DISTRIBUTION IT HELD NOT TO BE
INTERSTATE COMMERCE WITHIN THE MEANING OF THE STATUTE.  IT DECIDED
THAT, BY VIRTUE OF THEIR CONTRACT, THE COMPANIES BECAME IN EFFECT
PARTNERS OR JOINT ENTERPRISERS IN THE DISTRIBUTION AND SALE OF THE GAS
TO TENNESSEE CONSUMERS, THE NET EARNINGS FROM WHICH ARE TAXABLE UNDER
THE STATUTE. 

ON PETITION FOR REHEARING, TAXPAYER ASKED A MODIFICATION OF THE
DECREE ON THE GROUND THAT, INCLUDED IN THE MEASURE OF THE TAX WERE
PROFITS DERIVED FROM SALES OF GAS TO THE WEST TENNESSEE POWER & LIGHT
CO., AND FROM CERTAIN OTHER SALES TO THE MEMPHIS COMPANY, NOT UNDER THE
JOINT ADVENTURE AGREEMENT, WHICH IT WAS INSISTED WERE CONCEDEDLY SALES
IN INTERSTATE COMMERCE.  THE COURT REJECTED THIS CONTENTION UPON THE
ADEQUATE STATE GROUND, NOT CHALLENGED HERE, THAT TAXPAYER HAD FAILED TO
SHOW WHAT PORTION, IF ANY, OF THE TAXED PROFITS WAS DERIVED FROM SUCH
SALES AND CONSEQUENTLY HAD LAID NO BASIS FOR AN INJUNCTION RESTRAINING
COLLECTION OF THAT PART OF THE TAX. 

THIS COURT HAS OFTEN HAD OCCASION TO RULE THAT THE RETAIL SALE OF GAS
AT THE BURNER TIPS BY ONE WHO PIPES THE GAS INTO THE STATE, OR BY A
LOCAL DISTRIBUTOR ACQUIRING THE GAS FROM ANOTHER WHO HAS SIMILARLY
BROUGHT IT INTO THE STATE, IS SUBJECT TO STATE TAXATION AND
REGULATION.  PUBLIC UTILITIES COMM'N V. LANDON, 249 U.S. 236; EAST OHIO
GAS CO. V. TAX COMM'N, 283 U.S. 465; SOUTHERN GAS CORP. V. ALABAMA, 301
U.S. 148, 154; CF. MISSOURI V. KANSAS GAS CO., 265 U.S. 298, 309;
ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC SERVICE CO., 314
U.S. 498.  IT FOLLOWS THAT IF THE SUPREME COURT OF TENNESSEE CORRECTLY
CONSTRUED TAXPAYER'S CONTRACT WITH THE MEMPHIS COMPANY AS ESTABLISHING
A PROFIT-SHARING JOINT ADVENTURE IN THE DISTRIBUTION OF GAS TO
TENNESSEE CONSUMERS, THE TAXPAYER'S NET EARNINGS UNDER THE CONTRACT
WERE SUBJECT TO LOCAL TAXATION. 

THE MEANING AND EFFECT OF THE CONTRACT, SO FAR AS THEY ESTABLISH
TAXPAYER'S PARTICIPATION IN AND OWNERSHIP OF PROFITS DERIVED FROM THE
RETAIL SALE OF THE GAS, ARE LOCAL QUESTIONS CONCLUSIVELY SETTLED BY THE
DECISION OF THE STATE COURT SAVE ONLY AS THIS COURT, IN THE PERFORMANCE
OF ITS DUTY TO SAFEGUARD AN ASSERTED CONSTITUTIONAL RIGHT, MAY INQUIRE
WHETHER THE DECISION OF THE STATE QUESTION RESTS UPON A FAIR OR
SUBSTANTIAL BASIS.  SEE BROAD RIVER CO. V. SOUTH CAROLINA, 281 U.S.
537, AND CASES CITED.  WE EXAMINE THE CONTRACT ONLY TO MAKE CERTAIN
THAT THE NON-FEDERAL GROUND OF DECISION IS NOT SO COLORABLE OR
UNSUBSTANTIAL AS TO BE IN EFFECT AN EVASION OF THE CONSTITUTIONAL
ISSUE. 

THE CONTRACT WAS ENTERED INTO AS A PRELIMINARY TO THE AWARD BY THE
CITY OF MEMPHIS TO THE MEMPHIS COMPANY OF ITS FRANCHISE TO DISTRIBUTE
GAS TO CONSUMERS, AND EXECUTION OF THE CONTRACT WAS A CONDITION OF THE
GRANT OF THE FRANCHISE.  BY THE CONTRACT, THE MEMPHIS COMPANY UNDERTOOK
TO ESTABLISH ITS DISTRIBUTION SYSTEM.  TAXPAYER UNDERTOOK TO CONSTRUCT
ITS PIPELINE WITH FACILITIES, INCLUDING MEASURING STATIONS AT A
DELIVERY POINT, FOR SUPPLYING THE MEMPHIS COMPANY WITH A VARYING FLOW
OF GAS INTO THE SERVICE PIPES AS AND WHEN REQUIRED BY THE MEMPHIS
COMPANY FOR CONSUMER NEEDS.  THE AMOUNT SO FURNISHED, LESS CERTAIN
DEDUCTIONS COVERED BY A SEPARATE CONTRACT NOT NOW MATERIAL, WAS TO BE
DIVIDED INTO FIVE CLASSES, ACCORDING TO THE USE MADE OF THE GAS BY
CONSUMERS, AND WAS TO BE BILLED BY TAXPAYER TO THE MEMPHIS COMPANY AT
FIVE DIFFERENT SPECIFIED RATES.  THE AMOUNT OF GAS ALLOCATED TO EACH
CLASS WAS TO BE IN PROPORTION TO THE AMOUNT OF THAT CLASS OF GAS SOLD
BY THE MEMPHIS COMPANY FOR LIKE USE DURING THE PRECEDING MONTH. 

AT THE END OF EACH YEAR THE COMBINED NET SURPLUS OR DEFICIT OF THE
TWO COMPANIES WAS TO BE DIVIDED BETWEEN THEM BY A CASH SETTLEMENT.  THE
SURPLUS OR DEFICIT OF EACH WAS TO BE ARRIVED AT BY DEDUCTING FROM ITS
GROSS REVENUES THE OPERATING COSTS, COSTS OF PROPERTY RESTORATIONS AND
REPLACEMENTS, TAXES, AMORTIZATION OF INVESTMENT, AND 6% UPON
INVESTMENT.  AFTER ALL NET DEFICITS OF BOTH PARTIES HAD BEEN MADE UP
AND THE MEMPHIS COMPANY HAD RECEIVED FROM THE COMBINED NET SURPLUSES 1
1/2% OF ITS TOTAL INVESTMENT ANNUALLY, ANY ADDITIONAL COMBINED NET
INCOME WAS TO BE PAID TO OR RETAINED BY TAXPAYER. 

THE CONTRACT PROVIDED FOR READJUSTMENT FROM TIME TO TIME OF THE
BILLING PRICE OF THE GAS SUPPLIED BY TAXPAYER, SO AS TO ADMIT OF
REDUCTION IN THE RATES TO CONSUMERS, AFTER FIRST ALLOWING "A REASONABLE
RETURN" ON TAXPAYER'S INVESTMENT.  THE CONTRACT CONTAINS THE USUAL
PROVISIONS FOR INSPECTION OF BOOKS BY THE PARTIES AND THE CITY, AND A
CLAUSE REQUIRING ALL NOTICES TO BE GIVEN TO TAXPAYER AT ITS MEMPHIS
OFFICE. 

THE SUPREME COURT OF TENNESSEE HELD THAT THE CITY WAS A PARTY TO THE
CONTRACT ENTITLED TO THE BENEFITS OF ITS PROVISIONS FOR RATE
REDUCTIONS.  IT HELD THAT THE CIRCUMSTANCE THAT TAXPAYER AND THE
MEMPHIS COMPANY WERE DESIGNATED BY THE CONTRACT AS "SELLER" AND "BUYER"
DID NOT ALTER OR OBSCURE THE FACT THAT TAXPAYER WAS A PARTICIPANT IN
THE PROFITS DERIVED FROM THE JOINT UNDERTAKING, AND THAT THE PRECISE
TIME WHEN THE TITLE TO THE GAS PASSED, IF IT PASSED BEFORE DISTRIBUTION
TO CONSUMERS, WAS IMMATERIAL.  IN ANY CASE, IT THOUGHT THAT THE
TENTATIVE AMOUNTS TO BE PAID BY THE MEMPHIS COMPANY FOR THE GAS IN THE
FIRST INSTANCE WERE TO BE DETERMINED AFTER DELIVERY BY THE USE MADE OF
IT BY CONSUMERS. 

WE CANNOT SAY THAT THERE IS NOT A SUBSTANTIAL BASIS FOR THE STATE
COURT'S CONCLUSION THAT IN SUBSTANCE THE CONTRACT CALLED FOR THE
CONTRIBUTION OF THE SERVICES AND FACILITIES OF THE COMPANIES TO A JOINT
ENTERPRISE, THE TAXPAYER'S DELIVERY OF GAS INTO THE MAINS OF THE
MEMPHIS COMPANY FOR DISTRIBUTION TO CONSUMERS, AND A DIVISION BETWEEN
THE TWO COMPANIES OF THE OPERATING PROFITS AFTER PROVIDING FOR CERTAIN
AGREED INITIAL COSTS AND EXPENSES.  NOR CAN WE SAY THAT BY THIS
PARTICIPATION THE TAXPAYER DID NOT DO SUCH A BUSINESS IN THE STATE AS
TO BE TAXABLE THERE, OR THAT THE PROFITS DERIVED FROM IT ARE NOT AN
APPROPRIATE MEASURE OF THE TAX. 

TAXPAYER'S CONTRIBUTION TO THE JOINT UNDERTAKING WITH THE MEMPHIS
COMPANY FOR THE DISTRIBUTION OF GAS TO LOCAL CONSUMERS, AND ITS
ACTIVITIES AT ITS MEMPHIS GENERAL OFFICE IN SUPPLYING GAS TO BE
DISTRIBUTED FOR THE JOINT ACCOUNT AS REQUIRED BY THE MEMPHIS COMPANY
AND IN SAFEGUARDING AND SECURING PAYMENT OF ITS SHARE OF THE PROFITS,
WENT BEYOND THE MERE SALE, TO A DISTRIBUTOR, OF GAS IN INTERSTATE
COMMERCE.  IT ALSO CONSTITUTED PARTICIPATION IN THE BUSINESS OF
DISTRIBUTING THE GAS TO CONSUMERS AFTER ITS DELIVERY INTO THE SERVICE
PIPES OF THE MEMPHIS COMPANY.  CHENEY BROS. CO. V. MASSACHUSETTS, 246
U.S. 147, 155-56; ATLANTIC LUMBER CO. V. COMMISSIONER, 298 U.S. 553;
SOUTHERN GAS CORP. V. ALABAMA, SUPRA.  SINCE IT WAS COMPETENT FOR THE
STATE TO TAX SUCH BUSINESS DONE WITHIN IT, IT WAS COMPETENT TO MEASURE
THE TAX BY THE NET EARNINGS OF THE BUSINESS AS WELL AS BY THE CAPITAL
EMPLOYED.  SEE SOUTHERN GAS CORP. V. ALABAMA, SUPRA, 156-57. 

IN ANY CASE, EVEN IF TAXPAYER'S BUSINESS WERE WHOLLY INTERSTATE
COMMERCE, A NONDISCRIMINATORY TAX BY TENNESSEE UPON THE NET INCOME OF A
FOREIGN CORPORATION HAVING A COMMERCIAL DOMICILE THERE, CF. WHEELING
STEEL CORP. V. FOX, SUPRA, OR UPON NET INCOME DERIVED FROM WITHIN THE
STATE, SHAFFER V. CARTER, 252 U.S. 37, 57; WISCONSIN V. MINNESOTA
MINING CO., 311 U.S. 452; CF. NEW YORK EX REL. COHN V. GRAVES, 300 U.S.
308, IS NOT PROHIBITED BY THE COMMERCE CLAUSE ON WHICH ALONE TAXPAYER
RELIES.  U.S. GLUE CO. V. OAK CREEK, 247 U.S. 321; UNDERWOOD TYPEWRITER
CO. V. CHAMBERLAIN, 254 U.S. 113, 119-20; CF. BASS, RATCLIFF & GRETTON,
LTD. V. TAX COMM'N, 266 U.S. 271; WESTERN LIVE STOCK V. BUREAU, 303
U.S. 250, 255.  THERE IS NO CONTENTION OR SHOWING HERE THAT THE TAX
ASSESSED IS NOT UPON NET EARNINGS JUSTLY ATTRIBUTABLE TO TENNESSEE. 
UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, SUPRA; CF. BASS, RATCLIFF &
GRETTON, LTD. V. TAX COMM'N, SUPRA; BUTLER BROS. V. MCCOLGAN, ANTE, P.
501.  IT DOES NOT APPEAR THAT UPON ANY THEORY THE TAX CAN BE DEEMED TO
INFRINGE THE COMMERCE CLAUSE. 

APPEAL DISMISSED FOR WANT OF JURISDICTION.  CERTIORARI GRANTED AND
JUDGMENT AFFIRMED.  AFFIRMED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















GRAVES V. SCHMIDLAPP, 315 U.S. 657 


NO. 604.  ARGUED MARCH 12, 1942.  - DECIDED MARCH 30, 1942.  - 286 N.Y.
596, 35 N.E.2D 937, REVERSED. 


1.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DID NOT
PRECLUDE THE STATE OF NEW YORK FROM TAXING THE EFFECTIVE EXERCISE, BY
THE WILL OF A DOMICILED RESIDENT, OF A GENERAL POWER OF APPOINTMENT OF
WHICH HE WAS THE DONEE UNDER THE WILL OF A RESIDENT OF MASSACHUSETTS,
THE PROPERTY APPOINTED BEING INTANGIBLES HELD BY TRUSTEES UNDER THE
DONOR'S WILL.  WACHOVIA BANK & TRUST CO. V. DOUGHTON, 272 U.S. 567,
OVERRULED.  PP. 660, 665. 

2.  CONTROL BY THE STATE OF THE DONEE'S DOMICILE OVER HIS PERSON AND
ESTATE AND HIS DUTY TO CONTRIBUTE TO THE SUPPORT OF GOVERNMENT THERE,
AFFORD ADEQUATE CONSTITUTIONAL BASIS FOR THE IMPOSITION OF A TAX.  P.
660. 

THE DONEE OF THE POWER THE EXERCISE OF WHICH WAS TAXED WAS ALSO ONE
OF THE TRUSTEES NAMED BY THE MASSACHUSETTS WILL; AND THE PAPER
EVIDENCES OF THE INTANGIBLES, WHICH CONSISTED WHOLLY OF RECEIVABLES AND
CORPORATE STOCKS AND BONDS, WERE KEPT BY HIM AT THE TIME OF HIS DEATH
AND FOR SOME YEARS BEFORE, IN NEW YORK, THE STATE OF HIS RESIDENCE.  HE
AND OTHER TRUSTEES ACCOUNTED TO A MASSACHUSETTS PROBATE COURT FOR THE
ADMINISTRATION OF THE FUND. 

GRAVES ET AL., CONSTITUTING THE STATE TAX COMMISSION OF NEW YORK, V.
SCHMIDLAPP ET AL., EXECUTORS. 

CERTIORARI TO THE SURROGATE'S COURT OF THE COUNTY OF NEW YORK, STATE
OF NEW YORK. 

CERTIORARI, 314 U.S. 601, TO REVIEW A JUDGMENT OF THE COURT OF
APPEALS OF NEW YORK AFFIRMING WITHOUT OPINION AN ORDER OF THE
SURROGATE'S COURT OF THE COUNTY OF NEW YORK REDUCING AN ESTATE TAX
ASSESSMENT.  172 MISC. 426, 15 N.Y.S.2D 208. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO SAY WHETHER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT PRECLUDES NEW YORK FROM TAXING THE EXERCISE, BY A DOMICILED
RESIDENT, OF A GENERAL TESTAMENTARY POWER OF APPOINTMENT OF WHICH HE
WAS THE DONEE UNDER THE WILL OF A RESIDENT OF MASSACHUSETTS, THE
PROPERTY APPOINTED BEING INTANGIBLES HELD BY TRUSTEES UNDER THE DONOR'S
WILL. 

RESPONDENTS' DECEDENT DIED A RESIDENT OF NEW YORK, WHERE HIS WILL WAS
PROBATED AND LETTERS TESTAMENTARY WERE ISSUED.  DECEDENT'S FATHER HAD
PREVIOUSLY DIED A RESIDENT OF MASSACHUSETTS, WHERE HIS WILL HAD BEEN
PROBATED.  BY HIS WILL THE FATHER BEQUEATHED HIS RESIDUARY ESTATE IN
TRUST TO DIVIDE THE TRUST FUND INTO AS MANY SHARES AS HE SHOULD LEAVE
CHILDREN SURVIVING.  TO HIS SON, THE NEW YORK DECEDENT, HE GAVE A LIFE
ESTATE IN ONE SHARE AND A GENERAL POWER TO DISPOSE OF THAT SHARE "BY
WILL." 

THE SON WAS ALSO ONE OF THE THREE TESTAMENTARY TRUSTEES.  FOR SOME
YEARS THEY MANAGED THE TRUST PROPERTY AS A SINGLE TRUST FUND, BUT IN
1911 HIS ONE-THIRD SHARE WAS SEGREGATED AND HE WAS PERMITTED BY THE
OTHER TRUSTEES TO MANAGE IT AS A SEPARATE TRUST, ALTHOUGH ALL CONTINUED
AS TRUSTEES AND AS SUCH ACCOUNTED TO THE MASSACHUSETTS PROBATE COURT
FOR THE ADMINISTRATION OF HIS SHARE OF THE FUND.  FROM 1918 TO 1929 THE
NEW YORK DECEDENT RESIDED IN NEW YORK; FROM THEN UNTIL 1934 HE RESIDED
IN ILLINOIS, WHEN HE RETURNED TO NEW YORK WHERE HE RESIDED UNTIL HIS
DEATH IN 1937.  THROUGHOUT HE KEPT IN THE STATE OF HIS RESIDENCE THE
PAPER EVIDENCES OF THE INTANGIBLES COMPRISING HIS SHARE OF THE TRUST. 
AT THE TIME OF HIS DEATH IT CONSISTED WHOLLY OF RECEIVABLES AND
CORPORATE STOCKS AND BONDS.  BY HIS WILL DECEDENT APPOINTED HIS SHARE
OF THE TRUST FUND TO HIS WIDOW, AND THE NEW YORK TAX AUTHORITIES, IN
COMPUTING THE TAX, INCLUDED IN THE DECEDENT'S GROSS ESTATE THE
INTANGIBLES BEQUEATHED TO HER UNDER THE POWER. 

ARTICLE 10-C OF THE NEW YORK TAX LAW, BY SEC. 249-N, IMPOSES AN
ESTATE TAX "UPON THE TRANSFER OF THE NET ESTATE" OF RESIDENT
DECEDENTS.  UNDER THIS STATUTE THE NET TAXABLE ESTATE IS ARRIVED AT BY
DEDUCTING FROM THE GROSS ESTATE, AS DEFINED BY SEC. 249-R, THE
SPECIFIED DEDUCTIONS ALLOWED BY SEC. 249-S.  SECTION 249-R, SO FAR AS
RELEVANT, PROVIDES: 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR
PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED ... 

"7.  TO THE EXTENT OF ANY PROPERTY PASSING UNDER A GENERAL POWER OF
APPOINTMENT EXERCISED BY THE DECEDENT (A) BY WILL  ..." 

AN ORDER OF THE NEW YORK SURROGATE'S COURT, 172 MISC. 426, 15
N.Y.S.2D 208, REDUCED THE ESTATE TAX ASSESSED AGAINST THE DECEDENT'S
ESTATE BY EXCLUDING FROM HIS GROSS ESTATE THE SHARE OF THE TRUST FUND
PASSING TO THE WIDOW BY THE EXERCISE OF THE POWER, ON THE GROUND THAT
THE STATE WAS WITHOUT CONSTITUTIONAL AUTHORITY TO TAX THE EXERCISE BY A
RESIDENT DONEE OF A POWER OF APPOINTMENT CREATED BY A NONRESIDENT
DONOR, CITING WACHOVIA BANK & TRUST CO. V. DOUGHTON, 272 U.S. 567.  THE
NEW YORK COURT OF APPEALS AFFIRMED THE ORDER WITHOUT OPINION, 286 N.Y.
596, 35 N.E.2D 937, BUT CERTIFIED BY ITS REMITTITUR THAT IT HELD THAT
THE TAXING STATUTE, AS SOUGHT TO BE APPLIED IN THIS PROCEEDING,
VIOLATES THE FOURTEENTH AMENDMENT.  WE GRANTED CERTIORARI, 314 U.S.
601, BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED. 

FOR PURPOSES OF ESTATE AND INHERITANCE TAXATION, THE POWER TO DISPOSE
OF PROPERTY AT DEATH IS THE EQUIVALENT OF OWNERSHIP.  BULLEN V.
WISCONSIN, 240 U.S. 625; WHITNEY V. TAX COMM'N, 309 U.S. 530, 538; SEE
GRAY, RULE AGAINST PERPETUITIES, 3D ED. 1916, SEC. 524.  IT IS A
POTENTIAL SOURCE OF WEALTH TO THE APPOINTEE.  THE DISPOSITION OF WEALTH
EFFECTED BY ITS EXERCISE OR RELINQUISHMENT AT DEATH IS ONE FORM OF THE
ENJOYMENT OF WEALTH AND IS AN APPROPRIATE SUBJECT OF TAXATION.  THE
POWER TO TAX "IS AN INCIDENT OF SOVEREIGNTY, AND IS COEXTENSIVE WITH
THAT TO WHICH IT IS AN INCIDENT.  ALL SUBJECTS OVER WHICH THE SOVEREIGN
POWER OF A STATE EXTENDS ARE OBJECTS OF TAXATION."  MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, 429.  INTANGIBLES, WHICH ARE LEGAL
RELATIONSHIPS BETWEEN PERSONS AND WHICH IN FACT HAVE NO GEOGRAPHICAL
LOCATION, ARE SO ASSOCIATED WITH THE OWNER THAT THEY AND THEIR TRANSFER
AT DEATH ARE TAXABLE AT THE PLACE OF HIS DOMICILE, WHERE HIS PERSON AND
THE EXERCISE OF HIS PROPERTY RIGHTS ARE SUBJECT TO THE CONTROL OF THE
SOVEREIGN POWER.  HIS TRANSFER OF INTERESTS IN INTANGIBLES, BY VIRTUE
OF THE EXERCISE OF A DONATED POWER INSTEAD OF THAT DERIVED FROM
OWNERSHIP, STANDS ON THE SAME FOOTING.  IN BOTH CASES THE SOVEREIGN'S
CONTROL OVER HIS PERSON AND ESTATE AT THE PLACE OF HIS DOMICILE, AND
HIS DUTY TO CONTRIBUTE TO THE FINANCIAL SUPPORT OF GOVERNMENT THERE,
AFFORD ADEQUATE CONSTITUTIONAL BASIS FOR THE IMPOSITION OF A TAX. 
CURRY V. MCCANLESS, 307 U.S. 357; CF. GRAVES V. ELLIOTT, 307 U.S. 383. 

THESE WERE NOT NOVEL PROPOSITIONS, WHEN THEY WERE RESTATED IN THE
MCCANLESS AND ELLIOTT CASES, FN1  AND THEY WERE CHALLENGED THEN, THOUGH
UNSUCCESSFULLY, ONLY ON THE GROUND THAT THE TRANSFER OF THE INTANGIBLES
WAS SUBJECT TO TAXATION IN ANOTHER STATE WHERE THEY WERE HELD IN
TRUST.  BUT THE CONTENTION THAT THE DUE PROCESS CLAUSE FORECLOSES
TAXATION OF AN INTEREST IN INTANGIBLES BY THE STATE OF ITS OWNER WHEN
THEY ARE HELD IN TRUST IN ANOTHER STATE WAS REJECTED IN BULLEN V.
WISCONSIN, 240 U.S. 625.  IN THAT CASE, A FUND HAD BEEN GIVEN IN TRUST
RESERVING TO THE DONOR A GENERAL POWER OF REVOCATION AND THE
DISPOSITION OF THE TRUST INCOME DURING LIFE.  THIS COURT HELD THAT UPON
HIS DEATH AN INHERITANCE TAX COULD BE LEVIED BY THE STATE OF HIS
DOMICILE ALTHOUGH THE TRUSTEE AND THE TRUST FUND WERE OUTSIDE THE
STATE. 

IN NUMEROUS OTHER CASES THE JURISDICTION TO TAX THE USE AND ENJOYMENT
OF INTERESTS IN INTANGIBLES, REGARDLESS OF THE LOCATION OF THE PAPER
EVIDENCES OF THEM, HAS BEEN THOUGHT TO DEPEND ON NO FACTOR OTHER THAN
THE DOMICILE OF THE OWNER WITHIN THE TAXING STATE.  AND IT HAS BEEN
HELD THAT THEY MAY BE CONSTITUTIONALLY TAXED THERE EVEN THOUGH IN SOME
INSTANCES THEY MAY BE SUBJECT TO TAXATION IN OTHER JURISDICTIONS, TO
WHOSE CONTROL THEY ARE SUBJECT AND WHOSE LEGAL PROTECTION THEY ENJOY. 
FN2  AND SUCH INTERESTS TAXABLE AT THE DOMICILE OF THE OWNER HAVE BEEN
DEEMED TO INCLUDE THE EXERCISE OR RELINQUISHMENT OF A POWER TO DISPOSE
OF INTANGIBLES.  CHANLER V. KELSEY, 205 U.S. 466; BULLEN V. WISCONSIN,
SUPRA; CF. ORR V. GILMAN, 183 U.S. 278; SALTONSTALL V. SALTONSTALL, 276
U.S. 260. 

DECEDENT'S COMPLETE AND EXCLUSIVE POWER TO DISPOSE OF THE INTANGIBLES
AT DEATH WAS PROPERTY IN HIS HANDS IN NEW YORK, WHERE HE WAS
DOMICILED.  GRAVES V. ELLIOTT, SUPRA.  HE THERE MADE EFFECTIVE USE OF
THE POWER TO BESTOW HIS BOUNTY ON THE WIDOW.  ITS EXERCISE BY HIS WILL
TO MAKE A GIFT WAS AS MUCH AN ENJOYMENT OF A PROPERTY RIGHT AS WOULD
HAVE BEEN A LIKE BEQUEST TO HIS WIDOW FROM HIS OWN SECURITIES.  SEE
HELVERING V. HORST, 311 U.S. 112, 117.  FOR SUCH ENJOYMENT OF PROPERTY
RIGHTS, THROUGH RESORT TO NEW YORK LAW, DECEDENT WAS UNDER THE HIGHEST
OBLIGATION TO CONTRIBUTE TO THE SUPPORT OF THE GOVERNMENT WHOSE
PROTECTION HE ENJOYED IN COMMON WITH OTHER RESIDENTS.  TAXATION OF SUCH
ENJOYMENT OF THE POWER TO DISPOSE OF PROPERTY IS AS MUCH WITHIN THE
CONSTITUTIONAL POWER OF THE STATE OF HIS DOMICILE AS IS THE TAXATION OF
THE TRANSFER AT DEATH OF INTANGIBLES WHICH HE OWNS. 

SINCE IT IS THE EXERCISE OF THE POWER TO DISPOSE OF THE INTANGIBLES
WHICH IS THE TAXABLE EVENT, THE MERE FACT THAT THE POWER WAS ACQUIRED
AS A DONATION FROM ANOTHER IS WITHOUT SIGNIFICANCE.  WE CAN PERCEIVE NO
GROUND FOR SAYING THAT ITS EXERCISE BY THE DONEE IS FOR THAT REASON ANY
THE LESS THE ENJOYMENT OF A PROPERTY RIGHT, OR ANY THE LESS SUBJECT TO
TAXATION AT HIS DOMICILE.  THE SOURCE OF THE POWER BY GIFT NO MORE
TAKES ITS EXERCISE BY THE DONEE OUT OF THE TAXING POWER THAN THE LIKE
DISPOSITION OF A CHOSE IN ACTION OR A SHARE OF STOCK, OWNERSHIP OF
WHICH IS ACQUIRED BY GIFT. 

BUT RESPONDENTS ARGUE THAT BECAUSE HERE THE POWER WAS BEQUEATHED BY A
MASSACHUSETTS WILL, WHICH PLACED THE INTANGIBLES SUBJECT TO THE POWER
IN A MASSACHUSETTS TRUST, THERE WAS NOTHING WITHIN THE JURISDICTION OR
CONTROL OF NEW YORK WHICH COULD BE DEEMED SUBJECT TO ITS TAXING POWER. 
IF BY THIS IS MEANT THAT THE POWER WAS INEFFECTIVE BECAUSE ITS EXERCISE
BY THE NEW YORK WILL DID NOT CONFORM TO THE REQUIREMENTS OF THE WILL
CREATING THE POWER AND DEFINING THE MANNER OF ITS EXERCISE, OR TO THE
LAWS OF MASSACHUSETTS GOVERNING THE DISPOSITION OF INTANGIBLES, NO SUCH
QUESTION IS BEFORE US.  WE MUST TAKE IT THAT THE NEW YORK COURTS
ASSUMED, AS WE DO, THAT THE POWER HAD BEEN SO EXERCISED BY THE NEW YORK
WILL AS TO CONFER ON THE WIDOW THE RIGHT TO DEMAND THE PROPERTY OF THE
TRUSTEES IN MASSACHUSETTS, AND THAT EVEN UPON THAT ASSUMPTION THEY HELD
THAT THE EXERCISE OF THE POWER IN NEW YORK COULD NOT CONSTITUTIONALLY
BE TAXED. 

WHETHER THE NEW YORK TAX STATUTE WOULD APPLY IF THE NEW YORK WILL
WERE INEFFECTIVE TO TRANSFER THE INTANGIBLES BECAUSE IT FAILED TO
COMPLY WITH THE REQUIREMENTS OF THE MASSACHUSETTS WILL OR STATUTES, IS
FOR THE NEW YORK COURTS TO DECIDE.  WHETHER IN SUCH A CASE THE STATUTE
COULD BE CONSTITUTIONALLY SO APPLIED IS A QUESTION NOT PRESENTED BY THE
RECORD.  BUT IF, AS IS ASSUMED, THE POWER HAS BEEN EFFECTIVELY
EXERCISED, THE NEW YORK WILL IS THE IMPLEMENT OF ITS EXERCISE, MADE
EFFECTIVE AS A WILL BY NEW YORK LAW WHOSE AID THE DECEDENT INVOKED FOR
THE EXERCISE AND ENJOYMENT OF THE PROPERTY RIGHT CONFERRED ON HIM BY
THE MASSACHUSETTS WILL.  ITS EXERCISE IS A SUBJECT OVER WHICH THE
SOVEREIGN POWER OF TAXATION EXTENDS. 

ADMITTEDLY, UNDER PREVAILING NOTIONS OF CHOICE OF LAW IN THE COURTS
OF THESE TWO STATES, THE LAW OF THE DONOR'S DOMICILE, HERE
MASSACHUSETTS, MAY BE LOOKED TO IN NEW YORK IN DETERMINING WHETHER, IN
SOME RESPECTS AT LEAST, THERE HAS BEEN A VALID AND EFFECTIVE EXECUTION
OF THE POWER OF APPOINTMENT.  SEWALL V. WILMER, 132 MASS. 131; HOGARTH
SWANN V. WEED, 274 MASS. 125, 130, 174 N.E. 314; HILLEN V. ISELIN, 144
N.Y. 365, 378, 39 N.E. 368; IN RE NEW YORK LIFE INS. & TRUST CO., 209
N.Y. 585, 103 N.E. 315.  BUT A TRANSFER WHICH HAS IN FACT BEEN EFFECTED
BY RECOURSE IN PART TO THE LAW OF NEW YORK IS NOT FREE OF TAXATION
THERE BECAUSE THE POWER MIGHT HAVE BEEN EXERCISED ELSEWHERE OR BY SOME
OTHER MODE, OR BECAUSE IT MAY BE NECESSARY FOR THE TRANSFEREE TO INVOKE
THE LAWS OF MASSACHUSETTS IN ORDER TO ACQUIRE CONTROL OF THE PROPERTY. 
A TRANSFER IN ONE STATE OF A CHOSE IN ACTION OR A SHARE OF STOCK MAY BE
TAXED THERE EVEN THOUGH THE TRANSFEREE IN ORDER TO ENJOY ITS BENEFITS
MUST DEPEND IN PART UPON THE LAW OF THE STATE OF THE DEBTOR OR OF THE
CORPORATION.  BLODGETT V. SILBERMAN, 277 U.S. 1, 10-17.  HERE THE
RELATIONSHIP OF THE POWER TO MASSACHUSETTS DOES NOT LEAVE NEW YORK
WITHOUT SUFFICIENT CONTROL OVER THE DONEE AND HIS EXERCISE OF THE POWER
TO SUPPORT ITS CONSTITUTIONAL AUTHORITY TO TAX.  FOR THE FACT REMAINS
THAT HE, AS A RESIDENT ENJOYING THE PROTECTION OF NEW YORK'S LAWS AND
OWING TO IT THE DUTY OF FINANCIAL SUPPORT, HAS DISPOSED OF WEALTH BY A
WILL EXECUTED AND PROBATED IN NEW YORK WITH THE SAME RESULT AS IF HE
HAD OWNED THE PROPERTY.  THIS TRANSMISSION OF WEALTH AT DEATH BY A
RESIDENT IS NOT A FORBIDDEN SOURCE OF REVENUE TO THE STATE. 

WACHOVIA TRUST CO. V. DOUGHTON, SUPRA, ON WHICH RESPONDENTS RELY,
DENIED THE CONSTITUTIONAL POWER OF A STATE TO TAX THE EFFECTIVE
EXERCISE OF A TESTAMENTARY POWER IN CIRCUMSTANCES LIKE THE PRESENT. 
THE ONLY GROUNDS FOR THE DECISION WERE THAT THE INTANGIBLES HELD IN
TRUST IN ANOTHER STATE, WHICH WERE THE SUBJECT OF THE POWER, HAD NO
SITUS IN THE STATE WHERE THE DOMICILED TESTATOR HAD EXERCISED THE POWER
BY HIS WILL; THAT ITS EXERCISE WAS SUBJECT TO THE LAWS OF MASSACHUSETTS
WHERE THE WILL DONATING THE POWER AND ESTABLISHING THE TRUST HAD BEEN
PROBATED, AND THAT NO "RIGHT" EXERCISED BY THE DONEE WAS CONFERRED BY
THE STATE OF HIS DOMICILE WHERE IT WAS EXERCISED. 

THE CONCLUSION THERE REACHED AND THE REASONS ADVANCED IN ITS SUPPORT
CANNOT BE RECONCILED WITH THE DECISION AND THE REASONING OF THE BULLEN,
THE MCCANLESS AND THE ELLIOTT CASES.  IT IS PLAIN THAT IF APPROPRIATE
EMPHASIS BE PLACED ON THE ORDERLY ADMINISTRATION OF JUSTICE RATHER THAN
BLIND ADHERENCE TO CONFLICTING PRECEDENTS, THE WACHOVIA CASE MUST BE
OVERRULED.  THERE IS NO REASON WHY THE STATE SHOULD CONTINUE TO BE
DEPRIVED OF REVENUE FROM A SUBJECT WHICH FROM THE BEGINNING HAS BEEN
WITHIN THE REACH OF ITS TAXING POWER; A SUBJECT OVER WHICH WE CANNOT
SAY THE STATE'S CONTROL HAS BEEN CURTAILED BY THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  NO INTEREST WHICH COULD BE SERVED BY SO
RIGID AN ADHERENCE TO STARE DECISIS IS SUPERIOR TO THE DEMANDS OF A
SYSTEM OF JUSTICE BASED ON A CONSIDERED AND A CONSISTENT APPLICATION OF
THE CONSTITUTION.  SEE BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393,
406, FOOTNOTE 1; AND CF. HELVERING V. MOUNTAIN PRODUCERS CORP., 303
U.S. 376, 387.  THE WACHOVIA CASE SHOULD BE AND NOW IS OVERRULED AND
THE CONSTITUTIONAL POWER OF NEW YORK TO LEVY THE PRESENT TAX IS
SUSTAINED.  REVERSED.    FN1  SEE ORR V. GILMAN, 183 U.S. 278; CHANLER
V. KELSEY, 205 U.S. 466; BULLEN V. WISCONSIN, 240 U.S. 625; SALTONSTALL
V. SALTONSTALL, 276 U.S. 260, 271; CF. REINECKE V. NORTHERN TRUST CO.,
278 U.S. 339, 345; CHASE NATIONAL BANK V. UNITED STATES, 278 U.S. 327,
337; TYLER V. UNITED STATES, 281 U.S. 497, 503; PORTER V. COMMISSIONER,
288 U.S. 436, 444. 

FN2  SEE KIRTLAND V. HOTCHKISS, 100 U.S. 491; HAWLEY V. MALDEN, 232
U.S. 1; CREAM OF WHEAT CO. V. GRAND FORKS, 253 U.S. 325; BLODGETT V.
SILBERMAN, 277 U.S. 1; VIRGINIA V. IMPERIAL COAL SALES CO., 293 U.S.
15; FIRST BANK STOCK CORP. V. MINNESOTA, 301 U.S. 234, 239-40, AND
CASES CITED; STEWART V. PENNSYLVANIA, 338 PA. 9, AFFIRMED 312 U.S. 649;
CF. CARPENTER V. PENNSYLVANIA, 17 HOW.  456(BEFORE FOURTEENTH
AMENDMENT); ALSO FARMERS LOAN & TRUST CO. V. MINNESOTA, 280 U.S. 204;
BALDWIN V. MISSOURI, 281 U.S. 586; BEIDLER V. SOUTH CAROLINA, 282 U.S.
1(ALL RECOGNIZING THE POWER OF THE STATE OF DOMICILE TO TAX).  IN THE
CASE OF INCOME TAXATION, SEE LAWRENCE V. STATE TAX COMM'N, 286 U.S.
276; NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308; GUARANTY TRUST CO.
V. VIRGINIA, 305 U.S. 19. 

MR. JUSTICE ROBERTS CONCURS IN THE RESULT ONLY BECAUSE HE CONSIDERS
HIMSELF BOUND BY THE DECISIONS IN CURRY V. MCCANLESS, 307 U.S. 357, AND
GRAVES V. ELLIOTT, 307 U.S. 383.  OTHERWISE HE WOULD VOTE TO AFFIRM. 
..END :



















PECHEUR CO. V. NAT. CANDY CO., 315 U.S. 666 


NO. 648.  ARGUED MARCH 10, 1942.  - DECIDED MARCH 30, 1942.  - 122 F.2D
318, VACATED. 


A SUIT IN THE DISTRICT COURT TO ENJOIN INFRINGEMENT OF A TRADEMARK AND
FOR RESULTING DAMAGES CAN NOT BE MAINTAINED AS A SUIT ARISING UNDER THE
TRADEMARK LAW WHERE THE REGISTRATION OF PLAINTIFF'S LABELS WAS NOT
UNDER THAT LAW BUT UNDER THE COPYRIGHT LAW.  P. 657. 

PECHEUR LOZENGE CO., INC. V. NATIONAL CANDY CO., INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

PER CURIAM. 

PETITIONER BROUGHT THIS SUIT IN THE DISTRICT COURT TO RECOVER DAMAGES
AND FOR AN INJUNCTION RESTRAINING TRADEMARK INFRINGEMENT AND UNFAIR
COMPETITION.  THERE WAS DIVERSITY OF CITIZENSHIP, AND THE BILL OF
COMPLAINT ALLEGED THAT "THIS SUIT ARISES UNDER THE TRADEMARK LAWS OF
THE UNITED STATES" AND THAT PETITIONER'S WRAPPER DESIGN "WAS REGISTERED
IN THE UNITED STATES PATENT OFFICE BY THE PLAINTIFF ON MAY 1, 1936,
UNDER THE NO. 47748."  IT PRAYED TREBLE DAMAGES "IN ACCORDANCE WITH THE
PROVISIONS OF THE TRADEMARK LAW OF 1905," AND WAS AMENDED TO ALLEGE
REGISTRATION OF A SECOND WRAPPER DESIGN IN THE PATENT OFFICE UNDER THE
NO. 46862. 

A DECREE FOR PETITIONER, 36 F.SUPP.  730, WAS REVERSED BY THE CIRCUIT
COURT OF APPEALS FOR THE THIRD CIRCUIT.  122 F.2D 318.  BOTH COURTS
BELOW HAVING FAILED TO CONSIDER OR APPLY LOCAL LAW, WE GRANTED
CERTIORARI, 314 U.S. 603, IN ORDER TO DETERMINE WHETHER LOCAL LAW OR
FEDERAL LAW SHOULD HAVE BEEN APPLIED IN A SUIT FOR INFRINGEMENT OF A
TRADEMARK REGISTERED UNDER THE TRADEMARK ACT OF 1905, 33 STAT. 724, AND
WE REQUESTED COUNSEL "TO PRESENT THEIR VIEWS AS TO WHETHER STATE LAW
GOVERNS AND, IF SO, WHAT THE APPLICABLE STATE LAW IS." 

THE OPINIONS BELOW, THE PRINTED RECORD AND THE PETITION FOR
CERTIORARI GIVE NO INDICATION THAT THE SUIT WAS NOT FOUNDED UPON A
TRADEMARK REGISTERED UNDER THE 1905 ACT, AS THE BILL OF COMPLAINT HAD
MADE IT APPEAR.  BUT AN EXAMINATION OF THE ORIGINAL EXHIBITS, NOT
PRINTED IN THE RECORD, AND OF PETITIONER'S BRIEF ON THE MERITS HERE,
DISCLOSES THAT THE REGISTRATION REFERRED TO IS THAT OF PETITIONER'S
LABELS UNDER THE COPYRIGHT LAW OF THE UNITED STATES, AND NOT
REGISTRATION UNDER THE TRADEMARK LAW.  IT THUS APPEARS THAT PETITIONER
HAS ALLEGED NO CAUSE OF ACTION UNDER THE COPYRIGHT LAW AND IS NOT
ENTITLED TO THE BENEFITS OF REGISTRATION UNDER THE TRADEMARK LAW.  THE
ONLY CAUSE OF ACTION THAT THIS RECORD COULD POSSIBLY SUPPORT IS FOR
UNFAIR COMPETITION AND COMMON LAW "TRADEMARK INFRINGEMENT," TO WHICH
LOCAL LAW APPLIES.  SEE FASHION GUILD V. TRADE COMMISSION, 312 U.S.
457, 468. 

THE DECREE WILL BE VACATED WITHOUT COSTS IN THIS COURT TO EITHER
PARTY, AND THE CAUSE WILL BE REMANDED TO THE CIRCUIT COURT OF APPEALS,
TO AFFORD IT OPPORTUNITY TO APPLY THE APPROPRIATE LOCAL LAW, AND FOR
SUCH FURTHER OR OTHER PROCEEDINGS AS IN THE CIRCUMSTANCES MAY BE
PROPER.  DECREE VACATED AND CAUSE REMANDED. 
..END :

















U.S. CHEMICALS CO. V. CARBIDE CORP., 315 U.S. 668 


NO. 680.  ARGUED MARCH 13, 1942.  - DECIDED MARCH 30, 1942.  - 121 F.2D
665, REVERSED. 


1.  A REISSUE PATENT MUST BE FOR THE SAME INVENTION AS THE ORIGINAL
PATENT.  R.S. SEC. 4916.  P. 675. 

2.  ORIGINAL PATENT NO. 1,998,878, TO LEFORT, FOR A PROCESS FOR THE
PRODUCTION OF ETHYLENE OXIDE, CALLED FOR THE INTRODUCTION INTO A HEATED
REACTION CHAMBER OF ETHYLENE AND OXYGEN, IN THE PRESENCE OF A
CATALYZER, AND ALSO, AS AN ESSENTIAL, THE VOLUNTARY INTRODUCTION OF
WATER.  REISSUE PATENT NO. 20,370, IN DESCRIBING THE PROCESS, TREATS
THE VOLUNTARY INTRODUCTION OF WATER AS PERMISSIVE BUT NOT MANDATORY. 
HELD, THAT THE REISSUE IS VOID.  P. 677. 

3.  ALTHOUGH IT IS THE DUTY OF A COURT TO DETERMINE FOR ITSELF, BY
EXAMINATION OF THE ORIGINAL AND THE REISSUE, WHETHER THEY ARE FOR THE
SAME INVENTION, IT IS PERMISSIBLE, AND OFTEN NECESSARY, TO RECEIVE
EXPERT EVIDENCE TO ASCERTAIN THE MEANING OF A TECHNICAL OR SCIENTIFIC
TERM OR TERM OF ART, SO THAT THE COURT MAY BE AIDED IN UNDERSTANDING
NOT WHAT THE INSTRUMENTS MEAN BUT WHAT THEY ACTUALLY SAY.  P. 678. 

4.  IT IS INADMISSIBLE TO ENLARGE THE SCOPE OF THE ORIGINAL PATENT BY
RECOURSE TO EXPERT TESTIMONY TO THE EFFECT THAT A PROCESS DESCRIBED AND
CLAIMED IN THE REISSUE, DIFFERENT FROM THAT DESCRIBED AND CLAIMED IN
THE ORIGINAL PATENT, IS, BECAUSE EQUALLY EFFICACIOUS, IN SUBSTANCE THAT
CLAIMED ORIGINALLY.  P. 678. 

5.  THE OMISSION FROM A REISSUE PATENT OF ONE OF THE STEPS OR
ELEMENTS PRESCRIBED IN THE ORIGINAL, THUS BROADENING THE CLAIMS TO
COVER A NEW AND DIFFERENT COMBINATION, RENDERS THE REISSUE VOID, EVEN
THOUGH THE RESULT ATTAINED IS THE SAME AS THAT BROUGHT ABOUT BY
FOLLOWING THE PROCESS CLAIMED IN THE ORIGINAL PATENT.  P. 678. 

U.S. INDUSTRIAL CHEMICALS, INC. V. CARBIDE & CARBON CHEMICALS CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 314 U.S. 603, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
DISTRICT COURT UPHOLDING A REISSUE PATENT IN A SUIT FOR INFRINGEMENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BY THE RESPONDENT TO RESTRAIN THE PETITIONER FROM
INFRINGING CLAIMS 8 AND 9 OF REISSUE PATENT NO. 20,370.  THE
APPLICATION FOR REISSUE WAS FILED SEPTEMBER 25, 1936, AND GRANTED MAY
18, 1937.  THE ORIGINAL PATENT WAS NO. 1,998,878, APPLIED FOR MARCH 22,
1932, AND GRANTED APRIL 23, 1935, TO THEODORE EMILE LEFORT, OF PARIS,
FRANCE, FOR A "PROCESS FOR THE PRODUCTION OF ETHYLENE OXIDE."  THE
APPLICATION WAS BASED ON EARLIER FRENCH PATENTS.  THE RESPONDENT
PURCHASED THE UNITED STATES PATENT IN APRIL 1936 AND, AS A RESULT OF
ITS STUDY THEREOF, THE PATENTEE WAS PERSUADED TO APPLY FOR THE
REISSUE. 

IF THE REISSUE PATENT IS VALID, NO QUESTION IS NOW RAISED AS TO
PETITIONER'S INFRINGEMENT OF THE CLAIMS IN SUIT.  THE DISTRICT COURT
HELD THE PATENT VALID AND INFRINGED.  FN1  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  FN2  WE TOOK THE CASE BECAUSE OF AN APPARENT CONFLICT WITH
DECISIONS OF THIS COURT AND SEVERAL CIRCUIT COURTS OF APPEALS, TO THE
EFFECT THAT A REISSUE PATENT MUST, UNDER THE STATUTE, BE FOR THE SAME
INVENTION AS THE ORIGINAL PATENT.  FN3  THE PETITIONER ALSO RAISED A
QUESTION AS TO INTERVENING RIGHTS WHICH, IN THE VIEW WE TAKE, NEED NOT
BE CONSIDERED OR DECIDED. 

ETHYLENE IS A HYDROCARBON GAS, C2H4.  FOR A LONG TIME IT WAS THOUGHT
IMPOSSIBLE DIRECTLY TO OXYGENIZE IT TO FORM C2H4O BY BRINGING OXYGEN
AND ETHYLENE INTO CONTACT, THOUGH THE FORMATION OF ETHYLENE OXIDE BY
DIRECT OXIDATION WAS COMMERCIALLY DESIRABLE.  EFFORTS AT DIRECT
OXIDATION, INSTEAD OF PRODUCING THE OXIDE, RESULTED IN LESS DESIRABLE
OXYGENATED COMPOUNDS SUCH AS ALDEHYDES.  LEFORT CONCEIVED THE IDEA OF
EFFECTING THE OXIDATION BY CATALYTIC REACTION, THAT IS, THE USE OF A
SUBSTANCE, WHICH, IN SOME UNEXPLAINED WAY, CAUSES A CHEMICAL UNION OR
REACTION WHEN THE TWO SUBSTANCES TO BE AFFECTED ARE BROUGHT INTO
CONTACT IN ITS PRESENCE UNDER GIVEN CONDITIONS.  HE RECOGNIZED ONE
INCIDENT OF THE DIRECT OXIDATION PROCESS AS APPLIED TO ETHYLENE TENDING
TO DECREASE ITS EFFICIENCY, NAMELY, THAT, IN ADDITION TO THE PRINCIPAL
REACTION PRODUCING C2H4O, THERE OCCURS A SIDE REACTION BY WHICH A
PORTION OF THE ETHYLENE IS CONVERTED INTO CARBON DIOXIDE AND WATER,
AND, TO THAT EXTENT, THE ETHYLENE IS WASTED.  HE FOUND THAT, BY CERTAIN
CONTROL OF THE PROCESS, THIS SIDE REACTION COULD BE SO RESTRICTED AS
NOT TO DECREASE THE PRODUCTION OF ETHYLENE OXIDE BELOW A PROFITABLE
LEVEL. 

ACCORDING TO BOTH THE ORIGINAL PATENT AND THE REISSUE, ETHYLENE AND
OXYGEN ARE TO BE INTRODUCED INTO A HEATED REACTION CHAMBER IN THE
PRESENCE OF A CATALYZER.  THE PETITIONER INSISTS THAT THE ORIGINAL
PATENT ALSO TREATS AS A MANDATORY OR NECESSARY STEP THE VOLUNTARY
INTRODUCTION OF WATER, WHEREAS THE REISSUE IN SPECIFICATION AND CLAIMS
8 AND 9 OMITS THIS REQUIREMENT, AND THEREFORE DESCRIBES A DIFFERENT
PROCESS.  THE RESPONDENT, ON THE OTHER HAND, ASSERTS THAT AS BOTH
PATENTS DESCRIBE THE OXYGEN OF AIR AS THAT WHICH MAY BE USED, AND AS
ATMOSPHERIC AIR CONTAINS MOISTURE, THE FIRST, SPECIFYING WATER, AND THE
REISSUE SPECIFYING AIR, BOTH CONTEMPLATE THE INTRODUCTION OF WATER IN
SOME FORM AND THEREFORE ARE FOR THE SAME PROCESS.  FN4  THIS DISPUTE
MUST BE RESOLVED BY A COMPARISON OF THE DISCLOSURES OF THE TWO
INSTRUMENTS.  IF THAT COMPARISON LEADS TO THE CONCLUSION THAT THE
REISSUE IS NOT FOR THE SAME INVENTION AS THE ORIGINAL, THE REISSUE IS
VOID AS NOT WITHIN THE TERMS OF THE STATUTE. 

WE SHALL POSTPONE DISCUSSION OF THE TESTS OF IDENTITY OR DIFFERENCE
OF INVENTION, AND THE USE OF EXPERT TESTIMONY, TO A STATEMENT OF THE
CRITERIA OF JUDGMENT FURNISHED BY THE LANGUAGE OF THE SPECIFICATIONS
AND CLAIMS OF THE TWO DOCUMENTS. 

THE OPENING PARAGRAPH OF THE ORIGINAL PATENT IS: 

"THIS INVENTION HAS FOR OBJECT A PROCESS FOR THE PRODUCTION OF
ETHYLENE OXIDE WHICH MAINLY CONSISTS IN SUBJECTING ETHYLENE TO THE
SIMULTANEOUS ACTION OF THE OXYGEN OF AIR AND OF WATER, IN PRESENCE OF A
CATALYZER AND, IF NEED BE, OF HYDROGEN." 

AFTER REFERRING TO THE USE OF HYDROGEN AS OPTIONAL, THE SPECIFICATION
DEALS WITH THE CHARACTER AND COMPOSITION OF METALS TO BE USED AS
CATALYZERS.  IT THEN SPEAKS OF THE ELEMENTS TO BE USED TO OBTAIN THE
DESIRED REACTION THUS: 

"THE ETHYLENE CAN BE OBTAINED FROM ANY SOURCE OF SUPPLY:  ... 

"WATER CAN BE ADMITTED IN THE REACTION VESSEL, EITHER IN THE LIQUID
STATE, OR AS STEAM. 

"THE OXYGEN CAN BE THE OXYGEN OF THE AIR, THIS LATTER GAS BEING
INTRODUCED IN THE REACTION." 

IMMEDIATELY FOLLOWING, IT IS SAID: 

"THE EFFICIENCY OF THE REACTION IS INCREASED BY DIMINISHING THE CO2
WHICH IS FORMED, BY INTRODUCTION, IN THIS REACTION, OF A SUITABLE
QUANTITY OF WATER.  A SUITABLE VOLUME OF CO2 CAN ALSO BE PREVIOUSLY
INTRODUCED IN THE REACTING GASES." 

THE CO2 WHICH IT IS DESIRED TO DIMINISH IS THAT WHICH IS FORMED BY
THE UNDESIRABLE SIDE REACTION ABOVE MENTIONED.  THIS REACTION IS AGAIN
MENTIONED, AND THE INTRODUCTION OF WATER AGAIN SPECIFIED THUS: 

"MOREOVER, THE APPLICANT HAS FOUND THAT THE REACTION GIVING CO2 IS,
CONTRARILY TO PREVIOUS BELIEF, A REACTION OF OXIDATION INDEPENDENT FROM
THAT GIVING ETHYLENE OXIDE AND FROM THAT GIVING ALDEHYDES.  FROM
EXPERIMENTS EFFECTED BY THE APPLICANT, IT RESULTS THAT, IF WATER IS
INTRODUCED IN SUITABLE QUANTITY, THE REACTION IS NOT ONLY FACILITATED,
AS ABOVE STATED, BUT, IN ADDITION, THE REACTION GIVING CO2, PROBABLY BY
DIRECT OXIDATION OF ETHYLENE ACCORDING TO THE EQUATION: C2H4   3O2 2H2O
2CO2 IS CHECKED, OWING, AS IS PROBABLE, TO THE PARTIAL PRESSURE OF
WATER." 

IT IS FURTHER SAID THAT THE EXPERIMENTS INDICATE THAT THE SIDE
REACTION PRODUCING CO2 AND WATER MAY BE COMPLETELY CHECKED AND THE
EFFICIENCY OF THE REACTION PRODUCING ETHYLENE OXIDE INCREASED IF CO2 IS
PREVIOUSLY INTRODUCED IN ADDITION TO THE WATER AND THE REACTING GASES. 

THREE MODI OPERANDI ARE NEXT INDICATED AS EXAMPLES.  IN THE FIRST,
COMPRESSED ETHYLENE AND COMPRESSED AIR ARE LED, WITH OR WITHOUT
HYDROGEN, INTO A HEATED TUBE CONTAINING THE CATALYZER, THE TUBE BEING
CONNECTED WITH A CIRCULATING PUMP TO SUPPLY WATER UNDER PRESSURE.  IN
THE SECOND, THE CATALYZER IS INTRODUCED AND THE TUBE HEATED AND THEN "A
MIXTURE OF ETHYLENE, AIR, WATER VAPOUR AND HYDROGEN" IS SENT THROUGH
THE TUBE.  IN THE THIRD, THE CATALYZER IS INTRODUCED INTO A HIGH
PRESSURE TUBE FILLED WITH WATER.  PURE ETHYLENE IS ADDED "IN ORDER THAT
IT CAN DISSOLVE IN THE WATER."  THE TUBE IS HEATED AND "AIR AND
HYDROGEN ARE SLOWLY INTRODUCED." 

THE SPECIFICATION CONCLUDES: 

"THE EXPERIMENTS  ...  HAVE SHOWN THAT, IN PRESENCE OF THE CATALYZERS
INDICATED, WATER, IN THE FORM OF STEAM OR NOT, CONSIDERABLY PROMOTES
THE REACTION ENSURING THE PRODUCTION OF ETHYLENE OXIDE." 

ALL OF THE SEVEN CLAIMS INCLUDE OXYGEN AND WATER OR STEAM.  CLAIM 1
IS TYPICAL.  IT RUNS: 

"A PROCESS FOR THE PRODUCTION OF ETHYLENE OXIDE, CONSISTING IN
SUBJECTING ETHYLENE TO THE SIMULTANEOUS ACTION OF OXYGEN AND WATER, IN
PRESENCE OF A CATALYST (DESCRIBING THE CATALYST) AT A TEMPERATURE
BETWEEN 150 AND 400 DEGREE C." 

IN SOME OF THE CLAIMS THE WORD "STEAM" IS SUBSTITUTED FOR "WATER"; IN
TWO, "HYDROGEN" IS ADDED. 

VARIOUS OPTIONS OR ALTERNATIVES ARE MENTIONED IN THE SPECIFICATIONS,
BUT NOWHERE IN THEM, OR IN THE CLAIMS, IS THE INTRODUCTION OF WATER
TREATED AS OPTIONAL OR PERMISSIVE.  THE DISTRICT COURT MADE NO FINDING
DIRECTED TO THIS FACT, BUT THE COURT BELOW DEFINITELY HOLDS, AND WE
AGREE, THAT, IN THE PROCESS DEFINED IN THE ORIGINAL PATENT, THE
VOLUNTARY INTRODUCTION OF WATER INTO THE REACTION CHAMBER IS
MANDATORY. 

EXPERIMENTS CONDUCTED BY THE RESPONDENT JUST BEFORE IT ACQUIRED THE
PATENT DEMONSTRATED THAT ETHYLENE OXIDE COULD BE PRODUCED BY PASSING
ETHYLENE AND AIR OVER A CATALYST AT THE TEMPERATURE DESCRIBED IN THE
PATENT WITHOUT THE VOLUNTARY INTRODUCTION OF WATER.  ITS PATENT
ATTORNEY WAS ASKED TO STUDY THE PATENT AND HE CONCLUDED THAT LEFORT
SHOULD HAVE OBTAINED FAR BROADER CLAIMS.  HE PREPARED TWO OATHS FOR
EXECUTION BY LEFORT TO SUPPORT THE APPLICATION FOR REISSUE. 

IN THE FIRST, IT WAS AVERRED THAT THE SPECIFICATION AND CLAIMS FAILED
TO EMPHASIZE THE FACT THAT THE REACTION TAKES PLACE "WHETHER OR NOT
WATER IS PRESENT"; AND THAT THE ATTORNEY IN DRAWING THE APPLICATION HAD
NOT BEEN ADEQUATELY INSTRUCTED THAT THE "FULLEST BENEFIT AND
APPLICATION" OF THE INVENTION WAS THE PRODUCTION OF THE OXIDE IN THE
PRESENCE OF THE CATALYST "WITH OR WITHOUT THE INCLUSION OF WATER IN THE
REACTION." 

AFTER REJECTION, THE SECOND AFFIDAVIT WAS FILED.  THIS STATED THAT A
CERTAIN AMOUNT OF WATER WAS NECESSARILY PRESENT IN THE REACTION CHAMBER
DUE TO THE SIDE REACTION WHICH GIVES CO2 AND WATER, AND THAT THE
INTRODUCTION OF ADDITIONAL WATER AND CARBON DIOXIDE WAS MERELY
PERMISSIVE IN ORDER TO AUGMENT THE QUANTITIES ALREADY FORMED BY THAT
REACTION. 

THEREUPON REISSUE WAS GRANTED WITH A REWRITTEN SPECIFICATION, THE
SEVEN ORIGINAL CLAIMS AND TWO NEW ONES, 8 AND 9, WHICH ARE THOSE IN
SUIT. 

THE SUBSTITUTED SPECIFICATION OPENS THUS: 

"THIS INVENTION PROVIDES A SPECIFIC AND NOVEL PROCESS FOR MAKING
ETHYLENE OXIDE.  IT ESSENTIALLY CONSISTS IN CAUSING ETHYLENE TO COMBINE
DIRECTLY WITH MOLECULAR OXYGEN AT TEMPERATURES OF ABOUT 150 DEGREE TO
ABOUT 400 DEGREE C. IN THE PRESENCE OF A SURFACE CATALYST WHICH FAVORS
THE OXIDATION OF ETHYLENE TO ETHYLENE OXIDE UNDER THESE CONDITIONS." 

THE STATEMENT IS MADE THAT ETHYLENE FROM ANY SOURCE CAN BE USED, AND
THAT THE OXYGEN CAN BE THAT OF THE AIR. 

THE ONLY REFERENCE TO THE INTRODUCTION OF WATER IS: 

"THE OXIDATION OF ETHYLENE TAKES PLACE WITH A GIVING OFF OF HEAT, AND
IT IS, OF COURSE, DESIRABLE TO MAINTAIN THE TEMPERATURE OF THE ZONE OF
REACTION WITHIN THE RANGE SPECIFIED.  THIS CAN BE FACILITATED BY
SUITABLE DILUTION OF THE REACTION GASES, SUCH AS THAT ACCOMPLISHED BY
THE USE OF AIR AS THE SOURCE OF OXYGEN, AND SOME WATER OR CARBON
DIOXIDE IN ADDITION TO THAT FORMED CAN BE ADMITTED TO THE MIXTURE IN
THE REACTION ZONE IF DESIRED.  HYDROGEN MAY BE SIMILARLY ADDED." 

THE DESCRIPTION OF THE MODE OF CONDUCTING THE PROCESS DIFFERS FROM
ALL THOSE GIVEN IN THE ORIGINAL SPECIFICATION IN OMITTING THE
INTRODUCTION OF WATER. 

THE SPECIFICATION CONCLUDES: 

"IN ANY CASE, THE ETHYLENE AND OXYGEN ARE THUS REACTED SIMULTANEOUSLY
AT THE TEMPERATURES SET FORTH IN THE PRESENCE OF A SURFACE CATALYST AND
OF WATER  ...  " 

THE NEW CLAIMS 8 AND 9 ARE BROADER THAN THOSE OF THE ORIGINAL
PATENT.  FN5  IT WILL SUFFICE TO QUOTE 8.  IT IS: 

"THE PROCESS OF MAKING ETHYLENE OXIDE BY THE DIRECT CHEMICAL
COMBINATION OF OXYGEN WITH ETHYLENE IN THE PROPORTIONS OF ONE ATOM OF
OXYGEN TO ONE MOLECULE OF ETHYLENE, WHICH COMPRISES FORMING A MIXTURE
CONTAINING ETHYLENE AND MOLECULAR OXYGEN AND CONDUCTING SAID MIXTURE
THROUGH A CONFINED REACTION ZONE WHICH IS MAINTAINED AT AN ELEVATED
TEMPERATURE; CONTROLLING SAID TEMPERATURE TO MAINTAIN SAID MIXTURE IN
SAID ZONE AT A TEMPERATURE BETWEEN ABOUT 150 DEGREE AND ABOUT 400
DEGREE C.; SUBJECTING SAID MIXTURE IN SAID ZONE AT SAID ELEVATED
CONTROLLED TEMPERATURE TO INTIMATE CONTACT WITH AN ACTIVE SURFACE
CATALYST" (DESCRIBING IT, INTER ALIA, AS ONE WHICH FAVORS THE FORMATION
OF "OXIDATION PRODUCTS CONTAINING ETHYLENE OXIDE IN THE PRESENCE OF
WATER.")  AND DESCRIBING OTHER STEPS NOT NECESSARY TO BE RECITED. 

THE QUESTION IS WHETHER, IN THE LIGHT OF THE DISCLOSURES CONTAINED IN
THE TWO PATENTS, THEY ARE FOR THE SAME INVENTION.  THIS COURT HAS SAID
THAT THEY ARE IF THE REISSUE FULLY DESCRIBES AND CLAIMS THE VERY
INVENTION INTENDED TO BE SECURED BY THE ORIGINAL PATENT; FN6  IF THE
REISSUE DESCRIBES AND CLAIMS ONLY THOSE THINGS WHICH WERE EMBRACED IN
THE INVENTION INTENDED TO HAVE BEEN SECURED BY THE ORIGINAL PATENT; FN7
IF THE BROADER CLAIMS IN THE REISSUE ARE NOT MERELY SUGGESTED OR
INDICATED IN THE ORIGINAL SPECIFICATION BUT CONSTITUTE PARTS OR
PORTIONS OF THE INVENTION WHICH WERE INTENDED OR SOUGHT TO BE COVERED
OR SECURED BY THE ORIGINAL PATENT.  FN8  THE REQUIRED INTENTION DOES
NOT APPEAR IF THE ADDITIONAL MATTER COVERED BY THE CLAIMS OF THE
REISSUE IS NOT DISCLOSED IN THE ORIGINAL PATENT.  FN9  IF THERE BE
FAILURE OF DISCLOSURE IN THE ORIGINAL PATENT OF MATTER CLAIMED IN THE
REISSUE, IT WILL NOT AID THE PATENTEE THAT THE NEW MATTER COVERED BY
THE REISSUE WAS WITHIN HIS KNOWLEDGE WHEN HE APPLIED FOR HIS ORIGINAL
PATENT.  FN10  AND IT IS NOT ENOUGH THAT AN INVENTION MIGHT HAVE BEEN
CLAIMED IN THE ORIGINAL PATENT BECAUSE IT WAS SUGGESTED OR INDICATED IN
THE SPECIFICATION.  IT MUST APPEAR FROM THE FACE OF THE INSTRUMENT THAT
WHAT IS COVERED BY THE REISSUE WAS INTENDED TO HAVE BEEN COVERED AND
SECURED BY THE ORIGINAL.  FN11 

AS THE CIRCUIT COURT OF APPEALS HELD, THE ORIGINAL SPECIFICATION AND
CLAIMS TREATED THE VOLUNTARY INTRODUCTION OF WATER INTO THE REACTION
CHAMBER AS A NECESSARY STEP IN THE PROCESS, WHEREAS SUCH INTRODUCTION
IS MADE PERMISSIVE BY THE REISSUE.  WE AGREE WITH THAT COURT'S VIEW
THAT THERE IS THUS A DIFFERENCE BETWEEN THE PROCEDURE DESCRIBED IN THE
TWO DOCUMENTS.  BUT WE CANNOT AGREE WITH ITS CONCLUSION THAT THE
DIFFERENCE IS SO INSUBSTANTIAL AS NOT TO INVALIDATE THE NEW CLAIMS 8
AND 9.  ON THE FACE OF THE PAPERS, THE PROCESS DESCRIBED IN THE
ORIGINAL PATENT INCLUDED A STEP NOT DESIGNATED AS OPTIONAL OR DESIRABLE
BUT DESCRIBED AND CLAIMED AS AN INTEGRAL PART OF THE WHOLE OPERATION. 
IN CONTRAST, THE REISSUE TREATS THIS STEP AS IMMATERIAL AND MENTIONS
THE INTRODUCTION OF WATER AS FOR THE MERE PURPOSE OF CONTROLLING THE
TEMPERATURE IN THE REACTION ZONE, - A THOUGHT NOT EVEN SUGGESTED BY THE
SPECIFICATION OF THE ORIGINAL PATENT, WHICH, ON THE CONTRARY, IN ITS
VERY FIRST SENTENCE, SPEAKS OF THE SIMULTANEOUS ACTION OF THE OXYGEN OF
AIR AND OF WATER. 

WE THINK IT PLAIN THAT THE REISSUE OMITTED A STEP IN THE PROCESS
WHICH WAS DESCRIBED AND CLAIMED AS ESSENTIAL IN THE ORIGINAL PATENT. 
THE COURT BELOW WAS PERSUADED BY EXPERT TESTIMONY THAT, FROM A
CHEMIST'S POINT OF VIEW, THE PRESCRIBED STEP (THE INTRODUCTION OF
WATER) WAS IMMATERIAL; IN OTHER WORDS, CHEMISTS TESTIFIED THAT, BY
CARRYING OUT THE PROCEDURE, OMITTING THE INTRODUCTION OF WATER, THEY
OBTAINED THE RESULTS DESCRIBED IN THE PATENT.  NATURALLY ENOUGH, THIS
FACT LED THEM TO STATE, AS CHEMISTS, THAT THE INTRODUCTION OF THE WATER
WAS IMMATERIAL.  APPARENTLY THIS TESTIMONY INDUCED BOTH OF THE COURTS
BELOW TO CONCLUDE THAT LEFORT, WHEN HE APPLIED FOR HIS ORIGINAL PATENT,
KNEW THAT THE INTRODUCTION OF WATER WAS UNNECESSARY.  THE INQUIRY AT
ONCE ARISES, IF THIS WERE SO, WHY DID HE NOT SAY SO.  IF HE HAD
DISCOVERED A PROCESS, WHICH THE CLAIMS OF THE REISSUE ARE CERTAINLY
BROAD ENOUGH TO COVER,  - THAT OF MIXING DRY OXYGEN AND ETHYLENE IN THE
PRESENCE OF A CATALYST AT THE PRESCRIBED TEMPERATURE TO PRODUCE
ETHYLENE OXIDE,  - IT IS NOT UNDERSTOOD WHY, THROUGHOUT HIS
SPECIFICATIONS AND CLAIMS, HE SPOKE OF EXPOSING ETHYLENE TO THE
SIMULTANEOUS ACTION OF OXYGEN AND WATER OR STEAM. 

WE THINK THE COURT BELOW FELL INTO ERROR IN ADOPTING THE SCIENTIFIC
CONCLUSION OF EXPERT WITNESSES THAT THE RESULT WOULD BE THE SAME
WHETHER WATER WERE INTRODUCED INTO THE REACTION CHAMBER OR NOT, AS
PROOF THAT LEFORT'S INVENTION WAS NOT WHAT HE STATED IT TO BE IN HIS
ORIGINAL PATENT BUT RATHER THE INVENTION OF A PROCESS OF BRINGING
ETHYLENE AND OXYGEN INTO CONTACT IN THE PRESENCE OF A CATALYST. 

ALTHOUGH IT IS THE DUTY OF A COURT TO DETERMINE FOR ITSELF, BY
EXAMINATION OF THE ORIGINAL AND THE REISSUE, WHETHER THEY ARE FOR THE
SAME INVENTION, IT IS PERMISSIBLE, AND OFTEN NECESSARY, TO RECEIVE
EXPERT EVIDENCE TO ASCERTAIN THE MEANING OF A TECHNICAL OR SCIENTIFIC
TERM OR TERM OF ART SO THAT THE COURT MAY BE AIDED IN UNDERSTANDING NOT
WHAT THE INSTRUMENTS MEAN BUT WHAT THEY ACTUALLY SAY.  FN12  IT IS
INADMISSIBLE TO ENLARGE THE SCOPE OF THE ORIGINAL PATENT BY RECOURSE TO
EXPERT TESTIMONY TO THE EFFECT THAT A PROCESS DESCRIBED AND CLAIMED IN
THE REISSUE, DIFFERENT FROM THAT DESCRIBED AND CLAIMED IN THE ORIGINAL
PATENT, IS, BECAUSE EQUALLY EFFICACIOUS, IN SUBSTANCE THAT CLAIMED
ORIGINALLY.  FN13  IF SUCH TESTIMONY COULD TIP THE SCALES ON THE ISSUE
OF THE VALIDITY OF A REISSUE, IT WOULD ALWAYS BE POSSIBLE TO SUBSTITUTE
ANY NEW COMBINATION OF STEPS OR ELEMENTS OR DEVICES FOR THE ONE
ORIGINALLY DESCRIBED AND CLAIMED BY PROVING THAT THE OMISSION OF ANY
ONE OR MORE STEPS WOULD NOT ALTER THE RESULT. 

THIS COURT HAS UNIFORMLY HELD THAT THE OMISSION FROM A REISSUE PATENT
OF ONE OF THE STEPS OR ELEMENTS PRESCRIBED IN THE ORIGINAL, THUS
BROADENING THE CLAIMS TO COVER A NEW AND DIFFERENT COMBINATION, RENDERS
THE REISSUE VOID, EVEN THOUGH THE RESULT ATTAINED IS THE SAME AS THAT
BROUGHT ABOUT BY FOLLOWING THE PROCESS CLAIMED IN THE ORIGINAL PATENT. 

IN RUSSELL V. DODGE, 93 U.S. 460, THE ORIGINAL PATENT WAS FOR
TREATING SKINS BY THE USE OF A COMPOUND IN WHICH HEATED FAT LIQUOR WAS
EXPRESSLY STATED AS AN ESSENTIAL INGREDIENT.  THERE WAS NO DISCLOSURE
THAT THE FAT LIQUOR COULD BE USED COLD.  IN A REISSUE THE SPECIFICATION
WAS ALTERED BY ELIMINATING THE REQUIREMENT THAT THE LIQUOR BE HEATED. 
THE COURT SAID: 

"THE CHANGE MADE IN THE OLD SPECIFICATION, BY ELIMINATING THE
NECESSITY OF USING THE FAT LIQUOR IN A HEATED CONDITION, AND MAKING IN
THE NEW SPECIFICATION ITS USE IN THAT CONDITION A MERE MATTER OF
CONVENIENCE, AND THE INSERTION OF AN INDEPENDENT CLAIM FOR THE USE OF
FAT LIQUOR IN THE TREATMENT OF LEATHER GENERALLY, OPERATED TO ENLARGE
THE CHARACTER AND SCOPE OF THE INVENTION.  THE EVIDENT OBJECT OF THE
PATENTEE IN SEEKING A REISSUE WAS NOT TO CORRECT ANY DEFECTS IN
SPECIFICATION OR CLAIM, BUT TO CHANGE BOTH, AND THUS OBTAIN, IN FACT, A
PATENT FOR A DIFFERENT INVENTION.  THIS RESULT THE LAW, AS WE HAVE
SEEN, DOES NOT PERMIT." 

IN GILL V. WELLS, 22 WALL.  1, THE ORIGINAL PATENT DISCLOSED AND
CLAIMED A MACHINE FOR MAKING HAT BODIES.  ONE OF THE ELEMENTS OF THE
MACHINE WAS A TUNNEL THROUGH WHICH A CURRENT OF AIR WAS TO BE PASSED. 
THE SPECIFICATIONS DID NOT INDICATE THAT THIS PART COULD BE OMITTED. 
THE REISSUE FOR A MACHINE WITHOUT ANY TUNNEL, WAS HELD INVALID.  THE
COURT SAID (P. 26): 

"ARGUMENT TO SHOW THAT AN INVENTION CONSISTING OF A COMBINATION OF
THREE INGREDIENTS WHICH ARE OLD IS NOT THE SAME AS THAT OF A
COMBINATION OF FOUR OLD INGREDIENTS IS QUITE UNNECESSARY, AS THE
NEGATIVE OF THE PROPOSITION IS AS WELL SETTLED IN THE PATENT LAW AS IT
IS IN MATHEMATICS." 

MANY OTHER CASES MIGHT BE CITED TO THE SAME EFFECT. 

THE COURT BELOW WAS PERSUADED TO CONSTRUE THE REISSUE PATENT AS NOT
DIFFERING FROM THE ORIGINAL BY THE ARGUMENT THAT, IN BOTH, THE
INTRODUCTION OF WATER WAS NOT ESSENTIAL TO THE TECHNOLOGICAL SUCCESS OF
THE PROCESS.  WHEN CERTIORARI WAS APPLIED FOR IN THIS COURT, THE
RESPONDENT IN ITS BRIEF SAID:  "THE INTRODUCTION OF WATER, AS
DISTINGUISHED FROM ITS PRESENCE, IN THE REACTION ZONE IS NOT 'AN
ESSENTIAL FEATURE' IN THE INVENTION AT BAR, AND WAS NOT 'DESCRIBED AND
CLAIMED IN THE ORIGINAL PATENT AS AN ESSENTIAL FEATURE.'" 

THIS ARGUMENT GOES UPON THE THEORY THAT IF THE PRESENCE OF WATER IS
NECESSARY TO THE REACTION, ITS PRESENCE IS ASSURED BY THE SIDE REACTION
WE HAVE MENTIONED WHICH PRODUCES CO2 AND WATER.  IT DOES NOT EXPLAIN,
HOWEVER, WHY, IF THIS IS THE SOURCE OF THE NECESSARY WATER, LEFORT DID
NOT SAY SO IN HIS ORIGINAL PATENT.  NOR DOES IT SUGGEST HOW THE
REACTION CAN BE INITIATED OR CAUSED WHEN DRY OXYGEN IS USED AND THE
SIDE REACTION HAS NOT COMMENCED. 

IN THE ARGUMENT ON THE MERITS IN THIS COURT, THE RESPONDENT SHIFTED
ITS POSITION.  IN BRIEF AND ARGUMENT IT STATED THAT BOTH THE ORIGINAL
AND REISSUE COVER THE SAME INVENTION, FOR, IF BOTH REQUIRE THE
INTRODUCTION OF WATER, THE DESCRIBED INTRODUCTION OF AIR EFFECTS ALSO
THE INTRODUCTION OF WATER SINCE ATMOSPHERIC AIR CONTAINS BOTH OXYGEN
AND MOISTURE.  IT IS THUS SOUGHT TO AVOID THE FINDING OF THE CIRCUIT
COURT OF APPEALS THAT THE ORIGINAL PATENT CALLED FOR THE VOLUNTARY
INTRODUCTION OF WATER AND THE REISSUE DOES NOT.  THIS ARGUMENT FAILS TO
SQUARE WITH THE SPECIFICATION OR CLAIMS OF EITHER THE ORIGINAL PATENT
OR THE REISSUE.  THE CLAIMS OF THE ORIGINAL PATENT ARE NOT LIMITED TO
THE OXYGEN OF AIR; AND THE SPECIFICATION MERELY SAYS THE OXYGEN "CAN BE
THE OXYGEN OF AIR."  THE SPECIFICATION AND CLAIMS OF THE REISSUE ARE
SATISFIED BY THE INTRODUCTION OF DRY OXYGEN. 

IN SHORT, TO AVOID THE DIFFICULTIES WHICH STARE ONE IN THE FACE WHEN
THE ATTEMPT IS MADE TO READ SPECIFICATIONS AND CLAIMS AS CALLING FOR
THE SAME PROCESS, THE RESPONDENT IS DRIVEN TO TAKE INCONSISTENT
POSITIONS, NEITHER OF WHICH COMPORTS WITH THE PLAIN LANGUAGE OF THE TWO
PATENTS. 

WE HOLD THAT THE REISSUE IS NOT FOR THE SAME INVENTION DESCRIBED AND
CLAIMED AND INTENDED TO BE SECURED BY THE ORIGINAL PATENT, AND IS,
THEREFORE, VOID. 

THE DECREE IS REVERSED. 

FN1  34 F.SUPP.  813. 

FN2  121 F.2D 665. 

FN3  R.S. 4916, 35 U.S.C. SEC. 64:  "WHENEVER ANY PATENT IS WHOLLY OR
PARTIALLY INOPERATIVE OR INVALID, BY REASON OF A DEFECTIVE OR
INSUFFICIENT SPECIFICATION, OR BY REASON OF THE PATENTEE CLAIMING AS
HIS OWN INVENTION OR DISCOVERY MORE THAN HE HAD A RIGHT TO CLAIM AS
NEW, IF THE ERROR HAS ARISEN BY INADVERTENCE, ACCIDENT, OR MISTAKE, AND
WITHOUT ANY FRAUDULENT OR DECEPTIVE INTENTION, THE COMMISSIONER SHALL
...  CAUSE A PATENT FOR THE SAME INVENTION, AND IN ACCORDANCE WITH THE
CORRECTED SPECIFICATION, TO BE REISSUED.  ...  " 

FN4  NO QUESTION OF UNREASONABLE DELAY IS PRESENTED.  COMPARE MAHN V.
HARWOOD, 112 U.S. 354, 363; IVES V. SARGENT, 119 U.S. 652, 661; TOPLIFF
V. TOPLIFF, 145 U.S. 156, 169.  NOR HAVE WE OCCASION TO DECIDE WHAT MAY
BE THE SCOPE OF PERMISSIBLE COURT REVIEW OF THE COMMISSIONER'S
DETERMINATION THAT THE ERROR OF THE PATENTEE AROSE "BY INADVERTENCE,
ACCIDENT OR MISTAKE, WITHOUT FRAUDULENT OR DECEPTIVE INTENTION." 

FN5  THIS FACT, STANDING ALONE, DOES NOT VITIATE THE REISSUE. 
TOPLIFF V. TOPLIFF, 145 U.S. 156. 

FN6  POWDER CO. V. POWDER WORKS, 98 U.S. 126, 138. 

FN7  PARKER & WHIPPLE CO. V. YALE CLOCK CO., 123 U.S. 87, 99; HOSKIN
V. FISHER, 125 U.S. 217, 223; FLOWER V. DETROIT, 127 U.S. 563, 571. 

FN8  CORBIN CABINET LOCK CO. V. EAGLE LOCK CO., 150 U.S. 38, 42. 

FN9  CLEMENTS V. ODORLESS EXCAVATING APPARATUS CO., 109 U.S. 641,
647; COON V. WILSON, 113 U.S. 268, 277; ELECTRIC GAS-LIGHTING CO. V.
BOSTON ELECTRIC CO., 139 U.S. 481, 501; FREEMAN V. ASMUS, 145 U.S. 226,
239; OLIN V. TIMKEN, 155 U.S. 141, 147. 

FN10  POWDER CO. V. POWDER WORKS, SUPRA, P. 138; MANUFACTURING CO. V.
LADD, 102 U.S. 408, 413; HUBER V. NELSON MFG. CO., 148 U.S. 270. 

FN11  PARKER & WHIPPLE CO. V. YALE CLOCK CO., SUPRA; FLOWER V.
DETROIT, SUPRA. 

FN12  SEYMOUR V. OSBORNE, 11 WALL.  516, 546. 

FN13  COLLAR CO. V. VAN DUSEN, 23 WALL.  530, 557. 
..END :
























TULEE V. WASHINGTON, 315 U.S. 681 


NO. 318.  ARGUED MARCH 3, 1942.  - DECIDED MARCH 30, 1942.  - 7 WASH.2D
124, 109 P.2D 280, REVERSED. 


UNDER THE PROVISION OF THE TREATY OF MAY 29, 1855, WITH THE YAKIMA
INDIANS, RESERVING TO THE MEMBERS OF THE TRIBE THE RIGHT TO TAKE FISH
"AT ALL USUAL AND ACCUSTOMED PLACES, IN COMMON WITH THE CITIZENS" OF
WASHINGTON TERRITORY, THE STATE OF WASHINGTON HAS THE POWER TO IMPOSE
ON THE INDIANS EQUALLY WITH OTHERS SUCH RESTRICTIONS OF A PURELY
REGULATORY NATURE CONCERNING THE TIME AND MANNER OF FISHING OUTSIDE THE
RESERVATION AS ARE NECESSARY FOR THE CONSERVATION OF FISH, BUT IT CAN
NOT REQUIRE THEM TO PAY LICENSE FEES THAT ARE BOTH REGULATORY AND
REVENUE-PRODUCING.  P. 685. 

TULEE V. STATE OF WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF THE STATE OF WASHINGTON. 

APPEAL FROM A JUDGMENT AFFIRMING A CONVICTION OF A MEMBER OF THE
YAKIMA TRIBE OF INDIANS ON A CHARGE OF CATCHING SALMON WITH A NET
WITHOUT FIRST HAVING OBTAINED A LICENSE AS REQUIRED BY STATE LAW. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, SAMPSON TULEE, A MEMBER OF THE YAKIMA TRIBE OF
INDIANS, WAS CONVICTED IN THE SUPERIOR COURT FOR KLICKITAT COUNTY,
WASHINGTON, ON A CHARGE OF CATCHING SALMON WITH A NET, WITHOUT FIRST
HAVING OBTAINED A LICENSE AS REQUIRED BY STATE LAW.  FN1  THE SUPREME
COURT OF WASHINGTON AFFIRMED.  7 WASH.2D 124, 109 P.2D 280.  THE CASE
IS HERE ON APPEAL UNDER 237(A) OF THE JUDICIAL CODE, 28 U.S.C. 344(A),
THE APPELLANT CHALLENGING THE VALIDITY OF THE WASHINGTON STATUTE, AS
APPLIED TO HIM, ON THE GROUND THAT IT WAS REPUGNANT TO A TREATY MADE
BETWEEN THE UNITED STATES AND THE YAKIMA INDIANS. 

IN 1855, THE YAKIMAS AND OTHER INDIANS OWNED AND OCCUPIED CERTAIN
LANDS IN THE TERRITORY OF WASHINGTON, WHICH THE UNITED STATES WISHED TO
OPEN UP FOR SETTLERS.  MAY 29, 1855, REPRESENTATIVES OF THE GOVERNMENT
MET IN COUNCIL WITH REPRESENTATIVES OF THE INDIANS, AND AFTER EXTENDED
DISCUSSIONS LASTING UNTIL JUNE 11, THE INDIANS AGREED TO A TREATY,
UNDER WHICH THEY WERE TO CEDE 16,920 SQUARE MILES OF THEIR TERRITORY,
RESERVING 1,233 SQUARE MILES FOR THE CONFEDERATED TRIBES REPRESENTED AT
THE MEETING.  AS CONSIDERATION FOR THE CESSION BY THE INDIANS, A
CESSION WHICH FURTHERED THE NATIONAL PROGRAM OF TRANSFORMING WILDERNESS
INTO POPULOUS, PRODUCTIVE TERRITORY, THE GOVERNMENT AGREED TO PAY
$200,000; TO BUILD CERTAIN SCHOOLS, SHOPS, AND MILLS AND KEEP THEM
EQUIPPED FOR TWENTY YEARS; TO ERECT AND EQUIP A HOSPITAL; AND TO
PROVIDE TEACHERS AND VARIOUS HELPERS FOR TWENTY YEARS.  THIS AGREEMENT
WAS RATIFIED AND PROCLAIMED AS A TREATY IN 1859.  12 STAT. 951. 

THE APPELLANT CLAIMS THAT THE WASHINGTON STATUTE COMPELLING HIM TO
OBTAIN A LICENSE IN ORDER TO FISH FOR SALMON VIOLATES THE FOLLOWING
PROVISION OF ARTICLE III OF THE TREATY: 

"THE EXCLUSIVE RIGHT OF TAKING FISH IN ALL THE STREAMS, WHERE RUNNING
THROUGH OR BORDERING SAID RESERVATION, IS FURTHER SECURED TO SAID
CONFEDERATED TRIBES AND BANDS OF INDIANS, AS ALSO THE RIGHT OF TAKING
FISH AT ALL USUAL AND ACCUSTOMED PLACES, IN COMMON WITH CITIZENS OF THE
TERRITORY, AND OF ERECTING TEMPORARY BUILDINGS FOR CURING THEM;
TOGETHER WITH THE PRIVILEGE OF HUNTING, GATHERING ROOTS AND BERRIES,
AND PASTURING THEIR HORSES AND CATTLE UPON OPEN AND UNCLAIMED LAND." 

THE STATE DOES NOT CLAIM POWER TO REGULATE FISHING BY THE INDIANS IN
THEIR OWN RESERVATION.  PIONEER PACKING CO. V. WINSLOW, 159 WASH. 655,
294 P. 557.  NOR DOES IT DENY THAT TREATY RIGHTS OF INDIANS, WHATEVER
THEIR SCOPE, WERE PRESERVED BY CONGRESS IN THE ACT WHICH CREATED THE
WASHINGTON TERRITORY AND THE ENABLING ACT WHICH ADMITTED WASHINGTON AS
A STATE.  10 STAT. 172; 25 STAT. 676.  RELYING UPON ITS BROAD POWERS TO
CONSERVE GAME AND FISH WITHIN ITS BORDERS,  FN2  HOWEVER, THE STATE
ASSERTS THAT ITS RIGHT TO REGULATE FISHING MAY BE EXERCISED AT PLACES
LIKE THE SCENE OF THE ALLEGED OFFENSE, WHICH, ALTHOUGH WITHIN THE
TERRITORY ORIGINALLY CEDED BY THE YAKIMAS, IS OUTSIDE OF THEIR
RESERVATION.  IT ARGUES THAT THE TREATY SHOULD NOT BE CONSTRUED AS AN
IMPAIRMENT OF THIS RIGHT, AND THAT, SINCE ITS LICENSE LAWS DO NOT
DISCRIMINATE AGAINST THE INDIANS, THEY DO NOT CONFLICT WITH THE
TREATY.  THE APPELLANT, ON THE OTHER HAND, CLAIMS THAT THE TREATY GIVES
HIM AN UNRESTRICTED RIGHT TO FISH IN THE "USUAL AND ACCUSTOMED PLACES,"
FREE FROM STATE REGULATION OF ANY KIND.  WE THINK THE STATE'S
CONSTRUCTION OF THE TREATY IS TOO NARROW AND THE APPELLANT'S TOO BROAD;
THAT, WHILE THE TREATY LEAVES THE STATE WITH POWER TO IMPOSE ON
INDIANS, EQUALLY WITH OTHERS, SUCH RESTRICTIONS OF A PURELY REGULATORY
NATURE CONCERNING THE TIME AND MANNER OF FISHING OUTSIDE THE
RESERVATION AS ARE NECESSARY FOR THE CONSERVATION OF FISH,  FN3  IT
FORECLOSES THE STATE FROM CHARGING THE INDIANS A FEE OF THE KIND IN
QUESTION HERE. 

IN DETERMINING THE SCOPE OF THE RESERVED RIGHTS OF HUNTING AND
FISHING, WE MUST NOT GIVE THE TREATY THE NARROWEST CONSTRUCTION IT WILL
BEAR.  IN UNITED STATES V. WINANS, 198 U.S. 371, THIS COURT HELD THAT,
DESPITE THE PHRASE "IN COMMON WITH CITIZENS OF THE TERRITORY," ARTICLE
III CONFERRED UPON THE YAKIMAS CONTINUING RIGHTS, BEYOND THOSE WHICH
OTHER CITIZENS MAY ENJOY, TO FISH AT THEIR "USUAL AND ACCUSTOMED
PLACES" IN THE CEDED AREA; AND IN SEUFERT BROS. CO. V. UNITED STATES,
249 U.S. 194, A SIMILAR CONCLUSION WAS REACHED EVEN WITH RESPECT TO
PLACES OUTSIDE THE CEDED AREA.  FROM THE REPORT SET OUT IN THE RECORD
BEFORE US, OF THE PROCEEDINGS IN THE LONG COUNCIL AT WHICH THE TREATY
AGREEMENT WAS REACHED, WE ARE IMPRESSED BY THE STRONG DESIRE THE
INDIANS HAD TO RETAIN THE RIGHT TO HUNT AND FISH IN ACCORDANCE WITH THE
IMMEMORIAL CUSTOMS OF THEIR TRIBES.  IT IS OUR RESPONSIBILITY TO SEE
THAT THE TERMS OF THE TREATY ARE CARRIED OUT, SO FAR AS POSSIBLE, IN
ACCORDANCE WITH THE MEANING THEY WERE UNDERSTOOD TO HAVE BY THE TRIBAL
REPRESENTATIVES AT THE COUNCIL, AND IN A SPIRIT WHICH GENEROUSLY
RECOGNIZES THE FULL OBLIGATION OF THIS NATION TO PROTECT THE INTERESTS
OF A DEPENDENT PEOPLE.  UNITED STATES V. KAGAMA, 118 U.S. 375, 384;
SEUFERT BROS. CO. V. UNITED STATES, SUPRA, 198-199. 

VIEWING THE TREATY IN THIS LIGHT, WE ARE OF THE OPINION THAT THE
STATE IS WITHOUT POWER TO CHARGE THE YAKIMAS A FEE FOR FISHING.  A
STATED PURPOSE OF THE LICENSING ACT WAS TO PROVIDE FOR "THE SUPPORT OF
THE STATE GOVERNMENT AND ITS EXISTING PUBLIC INSTITUTIONS."  LAWS OF
WASHINGTON (1937) 529, 534.  THE LICENSE FEES PRESCRIBED ARE REGULATORY
AS WELL AS REVENUE PRODUCING.  BUT IT IS CLEAR THAT THEIR REGULATORY
PURPOSE COULD BE ACCOMPLISHED OTHERWISE, THAT THE IMPOSITION OF LICENSE
FEES IS NOT INDISPENSABLE TO THE EFFECTIVENESS OF A STATE CONSERVATION
PROGRAM.  EVEN THOUGH THIS METHOD MAY BE BOTH CONVENIENT AND, IN ITS
GENERAL IMPACT, FAIR, IT ACTS UPON THE INDIANS AS A CHARGE FOR
EXERCISING THE VERY RIGHT THEIR ANCESTORS INTENDED TO RESERVE.  WE
BELIEVE THAT SUCH EXACTION OF FEES AS A PREREQUISITE TO THE ENJOYMENT
OF FISHING IN THE "USUAL AND ACCUSTOMED PLACES" CANNOT BE RECONCILED
WITH A FAIR CONSTRUCTION OF THE TREATY.  WE THEREFORE HOLD THE STATE
STATUTE INVALID AS APPLIED IN THIS CASE. 

THE JUDGMENT OF THE SUPREME COURT OF WASHINGTON IS REVERSED. 

FN1  "IT SHALL BE UNLAWFUL TO CATCH, TAKE OR FISH FOR FOOD FISH WITH
ANY APPLIANCE OR BY ANY MEANS WHATSOEVER EXCEPT WITH HOOK AND LINE  ...
UNLESS LICENSE SO TO DO HAS BEEN FIRST OBTAINED.  ...  "  REMINGTON'S
REVISED STATUTES OF WASHINGTON, SEC. 5693.  "FOR EACH DIP BAG NET
LICENSE FOR THE TAKING OF SALMON ON THE COLUMBIA RIVER, (THE LICENSE
FEE SHALL BE) FIVE DOLLARS.  ...  " ID. (VOL. 7, 1940 SUPP.), SEC.
5703. 

FN2  GEER V. CONNECTICUT, 161 U.S. 519; WARD V. RACE HORSE, 163 U.S.
504, 507; PATSONE V. PENNSYLVANIA, 232 U.S. 138; LACOSTE V. DEPT. OF
CONSERVATION, 263 U.S. 545, 549. 

FN3  CF. KENNEDY V. BECKER, 241 U.S. 556.  SEE UNITED STATES V.
WINANS, SUPRA, 384. 
..END :























LABOR BOARD V. ELECTRIC CLEANER CO., 315 U.S. 685 


NO. 588.  ARGUED MARCH 5, 1942.  - DECIDED MARCH 30, 1942.  - 120 F.2D
611, REVERSED. 


1.  THE FINDING OF THE NATIONAL LABOR RELATIONS BOARD THAT, BY A
SUPPLEMENTARY ORAL CONTRACT BETWEEN AN EMPLOYER AND A LABOR UNION, IT
WAS AGREED ONLY THAT NEW EMPLOYEES WOULD BE REQUIRED TO JOIN THE UNION,
WAS SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 690. 

2.  THE CONCLUSION OF THE BOARD THAT THE CLOSED-SHOP AGREEMENT
BETWEEN THE EMPLOYER AND A LABOR UNION IN THIS CASE WAS NOT VALID UNDER
SEC. 8(3) OF THE NATIONAL LABOR RELATIONS ACT, BECAUSE PRIOR TO SUCH
AGREEMENT THE UNION - ALTHOUGH THEN THE COLLECTIVE BARGAINING
REPRESENTATIVE OF A MAJORITY OF THE EMPLOYEES - HAD BEEN ASSISTED BY
COOPERATION OF THE EMPLOYER CONSTITUTING UNFAIR LABOR PRACTICE, WAS
SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 694. 

THE EVIDENCE SUPPORTS THE BOARD'S RULING THAT THE EMPLOYER, CONTRARY
TO A COLLECTIVE BARGAINING AGREEMENT, COERCED OLD EMPLOYEES TO JOIN
CERTAIN UNIONS WITH WHICH THE EMPLOYER HAD NO CLOSED-SHOP CONTRACTS; IN
VIOLATION OF THE FREEDOM OF EMPLOYEES TO ORGANIZE, GUARANTEED BY THE
LABOR ACT. 

3.  AN ORDER OF THE BOARD REQUIRING THE EMPLOYER IN THIS CASE TO
CEASE AND DESIST FROM ENCOURAGING MEMBERSHIP IN SUCH UNION AND
DISCOURAGING MEMBERSHIP IN ANOTHER; FROM GIVING EFFECT TO THE
CLOSEDSHOP PROVISION OF THE CONTRACT; FROM GIVING EFFECT TO THE
REMAINDER OF THE CONTRACT, WHEN ANY OTHER LABOR ORGANIZATION SHALL BE
CERTIFIED AS EXCLUSIVE BARGAINING REPRESENTATIVE; FROM INTERFERING WITH
ITS EMPLOYEES' RIGHTS TO SELF-ORGANIZATION; AND REQUIRING REINSTATEMENT
WITH BACK PAY OF CERTAIN EMPLOYEES, POSTING OF NOTICES OF COMPLIANCE,
AND NOTIFICATION OF THE BOARD, WAS SUPPORTED BY THE EVIDENCE AND THE
FINDINGS, AND WAS VALID AND ENFORCEABLE.  PP. 689, 698. 

4.  A FINDING BY THE BOARD THAT A CLAUSE OF A CONTRACT BETWEEN AN
EMPLOYER AND A LABOR UNION, WHEREBY NEW EMPLOYEES WOULD BE REQUIRED TO
JOIN THE UNION, WAS ABANDONED AND NOT SUBSEQUENTLY REVIVED, HELD
SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 696. 

5.  SHORTENING THE PERIOD FOR WHICH THE BOARD ORDERED COMPENSATION TO
BE PAID TO EMPLOYEES WRONGFULLY DISCHARGED OR REFUSED EMPLOYMENT IS NOT
JUSTIFIED BY THE DELAYS IN DISPOSING OF THIS CASE.  P. 698. 

NATIONAL LABOR RELATIONS BOARD V. ELECTRIC VACUUM CLEANER CO., INC.,
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 314 U.S. 600, TO REVIEW A JUDGMENT REFUSING ENFORCEMENT
OF AND SETTING ASIDE AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE BASIC QUESTION FOR DETERMINATION BY THIS REVIEW IS THE RIGHT OF
THE RESPONDENT EMPLOYER, THE ELECTRIC VACUUM CLEANER COMPANY, INC., TO
COOPERATE WITH UNIONS, REPRESENTING AN UNCOERCED MAJORITY OF ITS
EMPLOYEES, TO SECURE NEW MEMBERS.  THE RIGHT IS CHALLENGED BECAUSE
EXERCISED PRIOR TO A CLOSED SHOP AGREEMENT. 

THE OTHER RESPONDENTS ARE VARIOUS UNIONS, ALL AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR, WHICH WE SHALL CALL THE AFFILIATES. 
SINCE JUNE 22, 1935, THESE UNIONS HAVE BEEN RECOGNIZED BY THE EMPLOYER
AS THE DULY CHOSEN AGENTS OF THE EMPLOYEES FOR COLLECTIVE BARGAINING. 
ON THAT DATE, THE AFFILIATES AND THE EMPLOYER ENTERED INTO A WRITTEN
CONTRACT COVERING HOURS AND WORKING CONDITIONS FOR THE PERIOD ENDING
JUNE 23, 1936.  A SIMILAR CONTRACT EXTENDED THE ARRANGEMENTS TO JUNE
23, 1937.  IN MAKING THE LATTER CONTRACT, THE AFFILIATES SATISFIED THE
EMPLOYER OF THEIR RIGHT TO REPRESENT THE WORKERS, BY EXHIBITING
AUTHORIZATION CARDS TOTALING 771 OUT OF THE 809 EMPLOYEES AFFECTED. 
THESE CARDS GAVE THE AFFILIATES "FULL POWER AND AUTHORITY" TO CONCLUDE
FOR THE SIGNER "ALL AGREEMENTS AS TO HOURS OF LABOR, WAGES AND OTHER
EMPLOYMENT CONDITIONS."  THEY WERE TO "REMAIN IN FULL FORCE AND EFFECT
FOR ONE YEAR FROM DATE AND THEREAFTER, SUBJECT TO THIRTY (30) DAYS
WRITTEN NOTICE OF MY DESIRE TO WITHDRAW SUCH POWER AND AUTHORITY TO ACT
FOR ME IN THE MATTERS REFERRED TO HEREIN."  WE ASSUME THAT THE
CANCELLATION CLAUSE IS INEFFECTIVE PRIOR TO TWELVE MONTHS FROM THE DATE
OF THE CARD AND THAT ALL CARDS WERE DATED JUST PRIOR TO THE TERMINATION
OF THE FIRST, OR 1935, CONTRACT. 

IN MARCH 1937, WHEN THE CONTRACT AND THE INDIVIDUAL POWERS OF
ATTORNEY STILL HAD SEVERAL MONTHS TO RUN, THE UNITED ELECTRICAL AND
RADIO WORKERS OF AMERICA (HEREAFTER CALLED UNITED), AFFILIATED WITH THE
COMMITTEE FOR INDUSTRIAL ORGANIZATION, BEGAN AN EFFORT TO ORGANIZE THE
PLANT.  THE BOARD, ON ADEQUATE EVIDENCE, FOUND THAT ABOUT SIXTY
EMPLOYEES IMMEDIATELY SIGNED UNITED CARDS, THAT ON MARCH 19TH A MEETING
OF UNITED WAS HELD AT THE POST OFFICE BUILDING IN EAST CLEVELAND,
ATTENDED BY A "LARGE NUMBER OF EMPLOYEES," AND THAT ON MARCH 28TH
ANOTHER UNITED MEETING WAS HELD "BY A LARGE NUMBER OF PERSONS, FOR THE
PURPOSE OF SECURING FORMAL RESIGNATIONS FROM THE A.F. OF L.
AFFILIATES."  IT IS UNDISPUTED THAT A UNITED CHARTER WAS ISSUED TO THE
INTERESTED EMPLOYEES FOR A LOCAL 720, AND THAT ON APRIL 2ND THE LOCAL
NOTIFIED THE EMPLOYER BY LETTER THAT A MAJORITY OF ITS EMPLOYEES HAD
RESIGNED THEIR MEMBERSHIPS IN THE AFFILIATES AND HAD "AFFILIATED"
THEMSELVES WITH UNITED.  LOCAL 720 CLAIMED IN THE LETTER THE RIGHT TO
NEGOTIATE GRIEVANCES "UNDER THE EXISTING CONTRACT," I.E., THAT EXPIRING
JUNE 23, 1937.  THIS LETTER WAS NOT RECEIVED BY THE EMPLOYER UNTIL
APRIL 5TH. 

PRIOR TO THE RECEIPT OF THIS LETTER, AND DURING A SHUTDOWN OF THE
PLANT BY THE EMPLOYER, WHICH HAD BEGUN ON MONDAY, MARCH 22, 1937,
PURSUANT TO A REQUEST OF THE AFFILIATES, DATED MARCH 20TH, THE EMPLOYER
AND THE AFFILIATES HAD ENTERED INTO AN ORAL ARRANGEMENT ON SATURDAY,
APRIL 3RD, PURSUANT TO WHICH THE EMPLOYER NOTIFIED ITS EMPLOYEES IT WAS
REOPENING ITS PLANT MONDAY, APRIL 5TH, UNDER THE CONTRACT EXPIRING THE
SUBSEQUENT JUNE 23RD, AND ADDED "BUT ONLY THOSE EMPLOYEES WHO ARE
MEMBERS OF THE CRAFTS UNDER CONTRACT WITH US WILL BE EMPLOYED." 
EVENTUALLY, A CLOSED SHOP CLAUSE APPEARED IN A BILATERAL WRITTEN
CONTRACT, SUPERSEDING THE ONE EXPIRING JUNE 23RD, EXECUTED AS OF MAY
20, 1937, IN THE FOLLOWING FORM: 

ARTICLE III (D) "THE EMPLOYER AGREES TO EMPLOY ONLY MEMBERS OF THE
UNIONS IN GOOD STANDING IN THEIR RESPECTIVE UNIONS, AND SHOULD THE
EMPLOYER REQUIRE MORE EMPLOYEES THAN THOSE NOW EMPLOYED, THE EMPLOYER
WILL SECURE SUCH EMPLOYEES THROUGH THE UNIONS, IF HOWEVER, THE UNIONS
ARE UNABLE TO FURNISH SUCH EMPLOYEES, THE EMPLOYER MAY SECURE THEM
ELSEWHERE, IT BEING UNDERSTOOD, HOWEVER, THAT SUCH EMPLOYEES SO SECURED
SHALL BECOME MEMBERS OF THE UNION." 

ON THE REOPENING OF THE PLANT, NO ONE WAS PERMITTED TO RETURN TO WORK
WHO DID NOT PRESENT A CLEARANCE CARD FROM THE AFFILIATES.  THE REFUSAL
OF THE COMPANY TO REEMPLOY CERTAIN MEMBERS OF UNITED LOCAL 720 GAVE
RISE TO CHARGES OF UNFAIR LABOR PRACTICES, WHICH WERE SUSTAINED BY THE
NATIONAL LABOR RELATIONS BOARD.  18 N.L.R.B. 591.  THE EMPLOYER WAS
ORDERED TO CEASE AND DESIST FROM DISCOURAGING MEMBERSHIP IN UNITED AND
ENCOURAGING MEMBERSHIP IN THE AFFILIATES; FROM GIVING ANY EFFECT AT ANY
TIME TO PARAGRAPH (D) OF ARTICLE III OF THE MAY 20, 1937, AGREEMENT,
QUOTED ABOVE, REQUIRING A CLOSED SHOP; FROM GIVING ANY EFFECT TO THE
REMAINDER OF THE MAY 20, 1937, AGREEMENT UPON CERTIFICATION OF ANY
OTHER LABOR ORGANIZATION THAN THE AFFILIATES AS EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE, AND FROM IN ANY MANNER INTERFERING WITH ITS
EMPLOYEES' RIGHTS TO SELF-ORGANIZATION.  THE ORDER REQUIRED AFFIRMATIVE
ACTION BY THE EMPLOYER, FOR CERTAIN EMPLOYEES, TO THE EXTENT OF
REINSTATEMENT AND BACK PAY, WITH THE USUAL PROVISIONS FOR POSTING
NOTICES OF COMPLIANCE AND NOTIFICATION OF THE BOARD.  SOME OTHER
CHARGES, AND A PETITION FOR INVESTIGATION AND CERTIFICATION OF
BARGAINING REPRESENTATIVES, WERE DISMISSED WITHOUT PREJUDICE.  FN1 

THE RESPONDENTS SUCCESSFULLY CONTESTED AN ENFORCEMENT PETITION.  THE
CIRCUIT COURT OF APPEALS SET ASIDE THE ORDER, 120 F.2D 611, ON THE
GROUND THAT THE REFUSAL TO PERMIT MEMBERS OF THE UNITED TO RESUME THEIR
WORK WAS JUSTIFIED BECAUSE, AT THE TIME, A VALID CLOSED SHOP CONTRACT,
IN FAVOR OF THE AFFILIATES, UNDER SEC. 8(3) OF THE STATUTE, SET OUT
BELOW, WAS IN EFFECT.  FN2  DEEMING THE ISSUES IMPORTANT IN THE
ADMINISTRATION OF THE ACT, WE GRANTED CERTIORARI.  314 U.S. 600. 

IN ADDITION TO THE FACTS JUST STATED, THE BOARD FOUND THERE WAS AN
ORAL PROVISION, PERTAINING TO A CLOSED SHOP, INCLUDED IN THE 1935 AND
1936 CONTRACTS.  THIS WAS TO THE EFFECT, THE BOARD CONCLUDED, THAT ALL
EMPLOYEES HIRED AFTER THE DATE OF THE FIRST CONTRACT (REFERRED TO AS
NEW EMPLOYEES) SHOULD BE REQUIRED, AFTER A WORK-PROBATION PERIOD OF TWO
WEEKS, TO BECOME MEMBERS OF THE APPROPRIATE AFFILIATE UNION. 
RESPONDENTS CONTEND THE ORAL ADDITION WAS SOMEWHAT DIFFERENT, AND THAT,
UNDER IT, NOT ONLY WERE NEW EMPLOYEES COMPELLED TO JOIN THE AFFILIATES,
BUT OLD EMPLOYEES (THOSE EMPLOYED BEFORE THE FIRST CONTRACT) WHO WERE,
OR WHO BECAME, MEMBERS OF THE AFFILIATES WERE REQUIRED TO MAINTAIN
THEIR MEMBERSHIP UNIMPAIRED.  RESPONDENTS' POSITION WAS UPHELD BY THE
CIRCUIT COURT OF APPEALS FOR THIS AND OTHER REASONS.  THE FREEDOM OF
OLD EMPLOYEES, UNDER THE EARLIER CONTRACTS, TO JOIN OR NOT, AS THEY
WISHED, IS ACKNOWLEDGED BY ALL. 

THE COURT RELIED HEAVILY UPON THE AUTHORIZATIONS TO BARGAIN,  FN3
FURNISHED THE AFFILIATES BY THE OLD EMPLOYEES, AS INDICATING THE OLD
EMPLOYEES WHO WERE MEMBERS MUST MAINTAIN THAT STATUS UNTIL THE YEAR WAS
UP.  ASSUMING THAT EVERY OLD EMPLOYEE FURNISHED A POWER OF
REPRESENTATION FOR COLLECTIVE BARGAINING NOT REVOCABLE DURING THE YEAR,
IT NEED NOT BE INFERRED THE EMPLOYEE ALSO WAS BOUND THEREBY NOT TO
SWITCH HIS UNION ALLEGIANCE.  IF THE EMPLOYEE WERE FORCED TO AWAIT THE
EXPIRATION OF THE YEAR BEFORE CHANGING MEMBERSHIP, THE FIRST BARGAINING
REPRESENTATIVE MIGHT HAVE A CONTRACT FOR THE ENSUING YEAR EXECUTED
BEFORE A NEW REPRESENTATIVE COULD BE ORGANIZED AND EMPOWERED TO ACT. 
THERE IS NOTHING IN THIS RECORD TO COMPEL SUCH INTERPRETATION OF THE
AUTHORIZATIONS.  WITH RESPECT TO THE CONTRACT BETWEEN THE EMPLOYER AND
THE AFFILIATES, THE BOARD CITES THE EVIDENCE OF SEVERAL, INCLUDING A
LETTER FROM THE EMPLOYER'S PRESIDENT, WRITTEN BEFORE ANY CONTROVERSY
AROSE, TO THE EFFECT THAT THE ORAL PROVISION WAS THAT NEW EMPLOYEES
MUST JOIN THE AFFILIATES.  FROM THIS EVIDENCE, THE BOARD WAS FULLY
JUSTIFIED IN REACHING ITS DETERMINATION THAT NOTHING MORE WAS AGREED. 
LABOR BOARD V. AUTOMOTIVE MAINTENANCE MACH. CO., 315 U.S. 282; LABOR
BOARD V. FALK CORP., 308 U.S. 453, 461; LABOR BOARD V. GREYHOUND LINES,
303 U.S. 261, 271.  THERE IS A DIFFERENCE BETWEEN BEING BOUND TO RETAIN
THE SAME BARGAINING REPRESENTATIVE FOR A SPECIFIED PERIOD, AND BEING
BOUND NOT TO BECOME A MEMBER OF A DIFFERENT UNION DURING THE TERM OF
THE CONTRACT.  THE FIRST SITUATION, NOT THE SECOND, AROSE FROM THE
EARLIER CONTRACTS. 

THE COMMENCEMENT OF THE UNITED CAMPAIGN FOR MEMBERSHIP, IN MARCH,
BROUGHT COOPERATIVE ACTION BETWEEN THE EMPLOYER AND THE AFFILIATES TO
STRENGTHEN THE LATTER'S POSITION.  UNDER THE ORAL CONTRACT, AS DEFINED
BY THE RULING OF THE BOARD, NOW APPROVED HERE, NEW EMPLOYEES COULD
PROPERLY BE REQUIRED TO BECOME MEMBERS OF THE AFFILIATES, BUT OLD
EMPLOYEES COULD NEITHER BE REQUIRED TO BECOME MEMBERS NOR TO MAINTAIN
THEIR MEMBERSHIP.  THE BOARD FOUND THAT, TO FORESTALL DEFECTIONS OF OLD
EMPLOYEES FROM THE AFFILIATES TO THE UNITED, THE EMPLOYER "SUMMONED OLD
EMPLOYEES TO THE OFFICE AND THERE SOUGHT TO, AND IN MANY INSTANCES WAS
ABLE TO, COERCE THEM INTO JOINING THE A.F. OF L. AFFILIATES."  IN THE
OFFICE WERE REPRESENTATIVES OF THE AFFILIATES AS WELL AS THE EMPLOYER. 
A NUMBER OF OLD MEN WERE CALLED BEFORE THIS GROUP.  IT IS NOT CLEAR
FROM THE RECORD WHICH ONES HAD BEEN MEMBERS OF THE AFFILIATES AND LOST
THEIR STANDING, OR WHICH ONES HAD NEVER BEEN MEMBERS.  THERE WERE
INSTANCES OF EACH TYPE.  VITOSKY HAD BEEN A MEMBER.  RAMSEY HAD NOT. 
BOTH VITOSKY AND RAMSEY WERE OLD EMPLOYEES, EACH IN SERVICE LONG PRIOR
TO THE FIRST CONTRACT.  VITOSKY AND FOUR OTHERS SIGNED AFFILIATE CARDS
ON DEMAND, AND RETURNED TO WORK.  RAMSEY REFUSED TO SIGN, AND WAS
DISCHARGED.  UPON THE REPORT OF RAMSEY'S DISCHARGE REACHING THE
WORKSHOPS, THERE WAS A ONE DAY SITDOWN STRIKE.  RESPONDENTS URGE THAT
RAMSEY'S DISCHARGE WAS THE RESULT OF AN ERROR.  THIS ISSUE NEED NOT BE
RESOLVED, AS THERE IS EVIDENCE THAT SOME OLD MEN, IN VIOLATION OF THE
COLLECTIVE BARGAINING AGREEMENT, WERE REQUIRED TO MAINTAIN OR RENEW
THEIR MEMBERSHIP IN THE AFFILIATES PRIOR TO THE CLOSED SHOP AGREEMENT
OF APRIL 3RD.  SUCH FACTS ARE ADEQUATE TO SUPPORT THE BOARD'S RULING OF
COERCION OF EMPLOYEES BY THE EMPLOYER IN ORDER TO MAINTAIN THE
MEMBERSHIP OF THE AFFILIATES.  WITHOUT A CLOSED SHOP CONTRACT COVERING
THE EMPLOYEES INVOLVED, THIS COMPANY EFFORT TO MAINTAIN A UNION
VIOLATES PROVISIONS PROTECTING THE FREEDOM OF EMPLOYEES TO ORGANIZE AS
THEY MAY WISH.  49 STAT. 452, SECS. 7, 8(1), 8(3); 29 U.S.C. SECS. 157,
158(1), 158(3). 

FURTHERMORE, UPON THE ADJUSTMENT OF THIS SIT-DOWN STRIKE, WHICH TOOK
PLACE FRIDAY, MARCH 19TH, AFTER THE OCCURRENCES JUST DESCRIBED, THE
AFFILIATES REQUESTED, AND THE EMPLOYER ORDERED, A SHUTDOWN OF THE
ENTIRE PLANT, WHICH LASTED FROM MARCH 22ND TO APRIL 5TH.  THE BOARD
FOUND THAT THIS SHUTDOWN WAS FOR THE PURPOSE OF PREVENTING "FURTHER
PROSELYTING" AMONG MEMBERS OF THE AFFILIATES BY THE UNITED.  A VICE
PRESIDENT OF THE EMPLOYER TESTIFIED TO SUCH FACTS, LEARNED BY HIM IN
CONFERENCE WITH OFFICIALS OF THE AFFILIATES WHO STATED THEY NEEDED THE
TIME TO "GET THEIR LINES IN ORDER."  ASSISTANCE TO A UNION BY A
SHUTDOWN, LIKE ANY OTHER EMPLOYER ASSISTANCE, IS FORBIDDEN.  FN4 

RESPONDENTS ASSERT THAT WHATEVER EMPLOYER ASSISTANCE WAS RENDERED THE
AFFILIATES WAS JUSTIFIED, EVEN UNDER AN INTERPRETATION OF THE CONTRACT
WHICH RESTRICTS THE ORAL PORTION TO A REQUIREMENT THAT NEW MEMBERS JOIN
THE AFFILIATES.  THE ASSISTANCE, IT IS URGED, WAS RENDERED TO
COLLECTIVE-BARGAINING REPRESENTATIVES, SELECTED FREELY BY A MAJORITY OF
THE EMPLOYEES AND POSSESSED OF UNRESTRICTED AND UNREVOKED POWERS TO
NEGOTIATE GENERALLY OVER LABOR CONDITIONS, INCLUDING THE CLOSED SHOP
CLAUSE OF APRIL 3RD AND THE NEW CLOSED SHOP CONTRACT OF MAY 20, 1937. 
UNDER THIS VIEW, SINCE THE DISCHARGES TOOK PLACE AFTER A VALID CLOSED
SHOP AMENDMENT, THEY WERE IN CONFORMITY WITH SEC. 8(3) OF THE LABOR
ACT. 

AN EXAMINATION OF THE PROVISO OF SEC. 8(3) WILL DEMONSTRATE THE ERROR
OF THIS POSITION.  THAT PROVISO READS, SO FAR AS PERTINENT, AS
FOLLOWS: 

"PROVIDED, THAT NOTHING IN THIS ACT  ... SHALL PRECLUDE AN EMPLOYER
FROM MAKING AN AGREEMENT WITH A LABOR ORGANIZATION (NOT ESTABLISHED,
MAINTAINED, OR ASSISTED BY ANY ACTION DEFINED IN THIS ACT AS AN UNFAIR
LABOR PRACTICE) TO REQUIRE AS A CONDITION OF EMPLOYMENT MEMBERSHIP
THEREIN, IF SUCH LABOR ORGANIZATION IS THE REPRESENTATIVE OF THE
EMPLOYEES AS PROVIDED IN SECTION 9(A), IN THE APPROPRIATE COLLECTIVE
BARGAINING UNIT COVERED BY SUCH AGREEMENT WHEN MADE." 

UNDER THE FINDINGS ALREADY SUSTAINED, THE AFFILIATES WERE ASSISTED
AND MAINTAINED BY THE COOPERATION OF THE EMPLOYER IN DEALING WITH THE
OLD EMPLOYEES.  SUCH ACTS ENCOURAGED THE LABOR ORGANIZATION, IN
VIOLATION OF THE PORTION OF SEC. 8(3) PRECEDING THE PROVISO, SET OUT IN
NOTE 2.  CONSEQUENTLY, WHEN THE CLOSED SHOP AGREEMENT WAS ADOPTED,
APRIL 3RD, IT WAS INVALID BECAUSE ENTERED INTO WITH A LABOR
ORGANIZATION ASSISTED BY AN EMPLOYER, IN THE PRECISE WORDS OF SEC. 8(3)
QUOTED ABOVE.  CF. I.A. OF M.V. LABOR BOARD, 311 U.S. 72, 81.  BEING
INVALID, THE DISCHARGES VIOLATED SECS. 7, 8(1) AND (3).    RESPONDENTS,
HOWEVER, TAKE THE POSITION THAT THE CONGRESSIONAL PURPOSE EMBODIED IN
THE LABOR ACT IS NOT SERVED BY SUCH LITERALNESS.  AS THEY SEE THE
SITUATION, FREEDOM TO ORGANIZE MUST NECESSARILY BE QUALIFIED AFTER
UNCOERCED EMPLOYEES OBTAIN VALIDLY CHOSEN MAJORITY REPRESENTATIVES. 
PREVIOUSLY UNTRAMMELED RIGHTS, THEY ARGUE, MUST BE SUBJECTED TO THE
MODICUM OF INTERFERENCE HERE PRACTICED, IN ORDER THAT THE CONGRESSIONAL
OBJECT OF INDUSTRIAL PEACE MAY BE REALIZED.  WE THINK, HOWEVER, THAT
THE BOARD'S INTERPRETATION OF THE APPLICABLE LANGUAGE IS CORRECT.  THE
PROVISION FOR A CLOSED SHOP, AS PERMITTED BY SEC. 8(3), FOLLOWS
GRAMMATICALLY A PROHIBITION OF DISCRIMINATION IN HIRING.  THESE WORDS
OF THE EXCEPTION MUST HAVE BEEN CAREFULLY CHOSEN TO EXPRESS THE PRECISE
NATURE AND LIMITS OF PERMISSIBLE EMPLOYER ACTIVITY IN UNION
ORGANIZATION.  TO PERMIT EMPLOYER INTERFERENCE PRIOR TO THE EXECUTION
OF A CLOSED SHOP CONTRACT, AS SOON AS A BARE MAJORITY OF EMPLOYEES HAD
PROPERLY SELECTED THEIR REPRESENTATIVES, WOULD GO FAR TO RESTORE THE
TYPE OF COMPANY-UNION COORDINATION IN LABOR MATTERS WHICH THE ACT
FORBIDS.  FN5 

SINCE WE HAVE HELD THAT ASSISTANCE WAS GIVEN THE AFFILIATES BY THE
UNFAIR LABOR PRACTICE OF ENCOURAGING MEMBERSHIP IN THOSE UNIONS, IT
FOLLOWS THAT THE CLOSED SHOP AGREEMENT OF APRIL 3RD, REQUIRING OLD
EMPLOYEES TO BE MEMBERS OF THE AFFILIATES, WAS MADE WITH AN ASSISTED
LABOR ORGANIZATION AND COULD BE HELD INVALID.  I.A. OF M. V. LABOR
BOARD, 311 U.S. 72, 75.  HOW LONG THAT INVALIDITY CONTINUES IS AN
INFERENCE OF FACT FOR THE FAIR DETERMINATION OF THE BOARD.  CF. H.J.
HEINZ CO. V. LABOR BOARD, 311 U.S. 514, 522.  CONSEQUENTLY, THE REFUSAL
OF THE EMPLOYER TO PERMIT THE EMPLOYEES TO WORK WITHOUT CLEARANCE FROM
THE AFFILIATES COULD BE FOUND A FORBIDDEN INTERFERENCE AND
DISCRIMINATION.  SEC. 8(1) AND (3).  LABOR BOARD V. LINK-BELT CO., 311
U.S. 584, 601.  FURTHER, THE BOARD'S CONCLUSION THAT THE INFIRMITIES OF
THE APRIL 3RD ARRANGEMENT WERE DESTRUCTIVE OF THE MAY 20TH CONTRACT
PROCEEDS NATURALLY FROM ITS DECISION AS TO THE EFFECT OF THE EMPLOYER
ACTIVITIES PRIOR TO APRIL 3RD.  THE FORCE OF THE UNFAIR PRACTICES WAS
NOT NECESSARILY DISSIPATED SO QUICKLY. 

THE EMPLOYER CALLS OUR ATTENTION TO PROVISIONS OF THE ORDER
REINSTATING EMPLOYEES, WHICH IT FEELS ERRONEOUS.  SO FAR AS THIS
OBJECTION IS BASED ON AN INTERPRETATION OF THE 1936 ORAL CONTRACT TO
REQUIRE OLD EMPLOYEES TO MAINTAIN THEIR MEMBERSHIP, IT IS ANSWERED BY
PRIOR PORTIONS OF THIS OPINION.  THE EMPLOYER'S REFUSAL TO ADMIT THESE
OLD EMPLOYEES TO WORK ON AND AFTER APRIL 5TH IS PROPERLY REMEDIED BY
REINSTATING THEM IN THEIR POSITION AND GRANTING THEM BACK PAY. 

THERE IS A DIFFERENT BASIS, HOWEVER, FOR THE OBJECTION TO THE
REINSTATEMENT OF THE NEW EMPLOYEES.  THIS IS THAT, UNDER ANY
INTERPRETATION OF THE ORAL CLAUSE OF THE 1936 CONTRACT, THESE MEN MUST
BECOME MEMBERS OF THE AFFILIATES, AND THEREFORE THE EMPLOYER'S REFUSAL
TO TAKE THEM BACK ON THEIR JOBS IS PROPER, EVEN THOUGH THE APRIL 3RD
ARRANGEMENT IS INVALID.  THE BOARD ANSWERS THAT THE APRIL 3RD
ARRANGEMENT WAS AN ABANDONMENT OF THE EARLIER ORAL CLAUSE, AND THAT,
CONSEQUENTLY, THE DISCHARGES MADE PURSUANT TO THE LATER INVALID CLOSED
SHOP ARRANGEMENTS ARE IMPROPER.  THE ABANDONMENT, THE BOARD FINDS, WAS
INTENTIONAL, AND THEREFORE THE SUBSEQUENT INVALIDATION OF THE LATER
ARRANGEMENT DID NOT REVIVE THE VITALITY OF THE EARLIER ORAL CONTRACT. 

THIS FINDING OF ABANDONMENT OF THE 1936 MEMBERSHIP CLAUSE WAS AN
INFERENCE DRAWN BY THE BOARD FROM THE CIRCUMSTANCES SURROUNDING THE
ADOPTION OF THE APRIL 3RD ARRANGEMENT.  IT IS AN INFERENCE THE BOARD IS
ENTITLED TO MAKE WHEN SUPPORTED BY MATERIAL EVIDENCE.  TO THE BOARD,
THE CONGRESS HAS ENTRUSTED THE APPRAISAL OF THE EVIDENCE AND THE
DRAWING OF SUCH INFERENCES.  49 STAT. 454, SEC. 10(E); LABOR BOARD V.
WATERMAN S.S. CO., 309 U.S. 206, 209; LABOR BOARD V. LINK-BELT CO., 311
U.S. 584, 597.  THE LACK OF POSITIVE EVIDENCE OF THE ABANDONMENT IS
NATURAL.  IT WAS FOUND ABANDONED BY THE BOARD BECAUSE OF THE ACTIONS OF
THE PARTIES, THE EMPLOYER AND THE AFFILIATES, LOOKING TO THE CREATION
OF A NEW, ALL EMBRACING CLOSED SHOP CONTRACT.  WHILE THE BOARD FOUND
THE 1936 ORAL CLAUSE HAD COVERED ONLY NEW EMPLOYEES, THE AFFILIATES
ISSUED A NOTICE TO THEIR MEMBERS, DATED MARCH 31ST, SAYING THE
"SOLUTION TO THE PROBLEM (I.E., "THE SITUATION THAT RESULTED IN THE
CLOSING OF THE PLANT") IS PROPER ENFORCEMENT OF THE PRESENT AGREEMENT,
AND THAT NO ONE BE ALLOWED TO RESUME WORK UNLESS AFFILIATED WITH THESE
ORGANIZATIONS."  ON APRIL 3, 1937, THE EMPLOYER NOTIFIED ITS EMPLOYEES
THAT IN 1936 "IT WAS AGREED THAT WE EMPLOY ONLY PERSONS AFFILIATED WITH
SAID CRAFTS" (THE AFFILIATES).  SUCH INTERPRETATION OF THE OLD CLAUSE,
VARYING SO RADICALLY FROM THAT ADOPTED BY THE BOARD, IS NOT CONDUCTIVE
TO CLEAR-CUT EVIDENCE OF THE PURPOSE OF THE SUBSTITUTE CLOSED SHOP
ARRANGEMENT OF APRIL 3RD.  CONSIDERED AGAINST THE BACKGROUND OF
COERCION OF OLD EMPLOYEES, THE STRIKE DIFFICULTIES AND THE CLOSING OF
THE PLANT, ALL AFFECTED AT LEAST BY THE UNITED'S MEMBERSHIP CAMPAIGN,
WE ARE NOT WILLING TO SAY THAT THE BOARD'S FINDING THAT "IN SUBSTANCE,
THOUGH NOT IN FORM, THE ARRANGEMENT EFFECTED BETWEEN THE RESPONDENT AND
THE A.F. OF L. AFFILIATES ON OR ABOUT APRIL 3, 1937, WAS AN ABANDONMENT
OF THE ORAL AGREEMENT AS INSUFFICIENT TO MEET THE EXIGENCIES OF THE
SITUATION AND ITS REPLACEMENT BY A CLOSED-SHOP AGREEMENT," IS
UNSUPPORTED BY SUBSTANTIAL EVIDENCE. 

WE HAVE NOTED THE EMPLOYER'S OBJECTION TO THE BURDEN OF BACK PAY
PLACED UPON IT BECAUSE OF THE BOARD'S ALLEGED DELAY IN ENTERING THE
FINAL ORDER.  HANDLING OF COMPLAINTS AS QUICKLY AS IS CONSISTENT WITH
GOOD ADMINISTRATION IS OF COURSE ESSENTIAL.  IT IS IMPORTANT BOTH TO
THE EMPLOYER, WHO MAY HAVE TO PAY BACK WAGES, AND TO THE EMPLOYEE, WHO
MUST LIVE WITHOUT HIS JOB.  UNFORTUNATELY, THIS CAUSE TOOK FROM JUNE
10, 1937, TO DECEMBER 31, 1939.  THERE IS NOTHING IN THE RECORD, BEYOND
A FAILURE OF THE BOARD TO FILE AN INTERMEDIATE REPORT, WHICH WOULD TEND
TO JUSTIFY US, HOWEVER, IN SHORTENING THE PERIOD FOR COMPENSATION. 
THIS ERROR WAS ADMITTED AND CORRECTED BY THE BOARD.  WE CANNOT PENALIZE
THE EMPLOYEES FOR THIS HAPPENING. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED WITH
DIRECTIONS TO ENFORCE THE ORDER OF THE BOARD EXCEPT AS TO REIMBURSEMENT
OF FEDERAL, STATE AND LOCAL WORK-RELIEF PROJECTS.  REVERSED. 

FN1  CERTAIN CLAUSES OF THE ORDER RELATING TO REIMBURSEMENT OF
FEDERAL, STATE AND LOCAL WORK-RELIEF PROJECTS ARE ABANDONED BY THE
BOARD AND SHOULD BE ELIMINATED.  REPUBLIC STEEL CORP. V. LABOR BOARD,
311 U.S. 7. 

FN2  49 STAT. 452, C. 372, SEC. 8:  "IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN EMPLOYER - ...  (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, THAT NOTHING IN THIS ACT, OR  ...  ANY OTHER STATUTE OF THE
UNITED STATES, SHALL PRECLUDE AN EMPLOYER FROM MAKING AN AGREEMENT WITH
A LABOR ORGANIZATION (NOT ESTABLISHED, MAINTAINED, OR ASSISTED BY ANY
ACTION DEFINED IN THIS ACT AS AN UNFAIR LABOR PRACTICE) TO REQUIRE AS A
CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN, IF SUCH LABOR ORGANIZATION
IS THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED IN SECTION 9(A), IN
THE APPROPRIATE COLLECTIVE BARGAINING UNIT COVERED BY SUCH AGREEMENT
WHEN MADE."  29 U.S.C. SEC. 158(3). 

FN3  "I, THE UNDERSIGNED,  ...  HEREBY AUTHORIZE MY CRAFT
ORGANIZATION  ...  TO REPRESENT ME AND, IN MY BEHALF, TO NEGOTIATE AND
CONCLUDE ALL AGREEMENTS AS TO HOURS OF LABOR, WAGES AND OTHER
EMPLOYMENT CONDITIONS.  ... 

"THE FULL POWER AND AUTHORITY TO ACT FOR THE UNDERSIGNED AS DESCRIBED
HEREIN SUPERSEDES ANY POWER OR AUTHORITY HERETOFORE GIVEN TO ANY PERSON
OR ORGANIZATION TO REPRESENT ME, AND SHALL REMAIN IN FULL FORCE AND
EFFECT FOR ONE YEAR FROM DATE AND THEREAFTER, SUBJECT TO THIRTY (30)
DAYS WRITTEN NOTICE OF MY DESIRE TO WITHDRAW SUCH POWER AND AUTHORITY
TO ACT FOR ME IN THE MATTERS REFERRED TO HEREIN." 

FN4  LABOR BOARD V. LUND, 103 F.2D 815; LABOR BOARD V. NATIONAL MOTOR
BEARING CO., 105 F.2D 652. 

FN5  THERE IS AN ILLUMINATING COMMENT IN THE SENATE REPORT ON THE
LABOR BILL.  S. REP. 573, 74TH CONG., 1ST SESS., P. 12: 

"THE ASSERTION THAT THE BILL FAVORS THE CLOSED SHOP IS PARTICULARLY
MISLEADING IN VIEW OF THE FACT THAT THE PROVISO IN TWO RESPECTS
ACTUALLY NARROWS THE NOW EXISTENT LAW REGARDING CLOSED-SHOP
AGREEMENTS.  WHILE TODAY AN EMPLOYER MAY NEGOTIATE SUCH AN AGREEMENT
EVEN WITH A MINORITY UNION, THE BILL PROVIDES THAT AN EMPLOYER SHALL BE
ALLOWED TO MAKE A CLOSED-SHOP CONTRACT ONLY WITH A LABOR ORGANIZATION
THAT REPRESENTS THE MAJORITY OF EMPLOYEES IN THE APPROPRIATE
COLLECTIVEBARGAINING UNIT COVERED BY SUCH AGREEMENT WHEN MADE. 

"SECONDLY, THE BILL IS EXTREMELY CAREFUL TO FORESTALL THE MAKING OF
CLOSED-SHOP AGREEMENTS WITH ORGANIZATIONS THAT HAVE BEEN 'ESTABLISHED,
MAINTAINED, OR ASSISTED' BY ANY ACTION DEFINED IN THE BILL AS AN UNFAIR
LABOR PRACTICE.  AND OF COURSE IT IS CLEAR THAT NO AGREEMENT HERETOFORE
MADE COULD GIVE VALIDITY TO THE PRACTICES HEREIN PROHIBITED BY SECTION
8." 

MR. JUSTICE ROBERTS IS OF THE OPINION THE JUDGMENT SHOULD BE AFFIRMED
FOR THE REASONS STATED IN THE OPINION OF THE CIRCUIT COURT OF APPEALS. 
120 F.2D 611. 
..END :






MILES V. ILLINOIS CENTRAL R. CO., 315 U.S. 698 


NO. 272.  ARGUED FEBRUARY 10, 1942.  - DECIDED MARCH 30, 1942.  -
REVERSED. 


COURT FROM ENJOINING, ON THE GROUND OF THE INCONVENIENCE OR EXPENSE TO
THE RAILROAD, A RESIDENT CITIZEN OF THE STATE FROM PROSECUTING OR
FURTHERING AN ACTION UNDER THE ACT (OR RECEIVING THE PROCEEDS OF ANY
JUDGMENT THEREIN) IN A STATE COURT OF ANOTHER STATE WHICH HAS
JURISDICTION UNDER THE ACT.  P. 705. 

MILES ET AL. V. ILLINOIS CENTRAL RAILROAD CO. 

CERTIORARI TO THE COURT OF APPEALS OF TENNESSEE. 

CERTIORARI, 314 U.S. 602, TO REVIEW A DECREE OF INJUNCTION.  THE
HIGHEST COURT OF THE STATE HAD REFUSED A REVIEW BY CERTIORARI. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE EFFECT OF SEC. 6 OF THE FEDERAL EMPLOYERS' LIABILITY ACT  FN1  ON
THE POWER OF A STATE COURT TO ENJOIN ITS CITIZENS, ON THE GROUND OF
OPPRESSIVENESS AND INEQUITY TO THE DEFENDANT CARRIER, FROM SUING ON A
F.E.L.A. CLAIM IN THE STATE COURTS OF ANOTHER STATE, FURTHERING SUCH A
SUIT IN ANY MANNER, OR RECEIVING THE PROCEEDS OF ANY JUDGMENT SO
OBTAINED, IS BEFORE US FOR DECISION. 

THE RESPONDENT, AN ILLINOIS CORPORATION, HEREAFTER REFERRED TO AS THE
ILLINOIS CENTRAL, BROUGHT AN ORIGINAL BILL IN THE CHANCERY COURT OF
SHELBY COUNTY, TENNESSEE, SEEKING TO ENJOIN ONE OF THE PETITIONERS
HERE, MRS. MILES, THEN THE TENNESSEE ADMINISTRATRIX OF HER HUSBAND, A
RESIDENT OF THAT STATE, FROM FURTHER PROSECUTING IN A MISSOURI STATE
COURT HER F.E.L.A. CLAIM AGAINST THE ILLINOIS CENTRAL FOR THE DEATH OF
HER HUSBAND, ITS EMPLOYEE.  THE FATAL ACCIDENT HAD OCCURRED AT MEMPHIS,
TENNESSEE.  AFTER A TEMPORARY INJUNCTION ISSUED, MRS. MILES PROMPTLY
DISMISSED HER MISSOURI SUIT AND WAS DISCHARGED AS ADMINISTRATRIX BY THE
TENNESSEE PROBATE COURT.  A MISSOURI ADMINISTRATOR WAS THEN APPOINTED
AT HER SUGGESTION, AND HE INSTITUTED ANOTHER MISSOURI SUIT FOR THE SAME
CAUSE OF ACTION.  THE ILLINOIS CENTRAL FILED AN AMENDED AND
SUPPLEMENTAL BILL, ADDING DECEDENT'S CHILDREN, LIKEWISE RESIDENTS OF
TENNESSEE, AS DEFENDANTS, AND ENLARGING ITS PRAYER TO FORBID FURTHERING
THE NEW SUIT IN ANY MANNER OR RECEIVING THE PROCEEDS OF ANY JUDGMENT. 
A NEW TEMPORARY INJUNCTION WAS ISSUED AS PRAYED. 

THE GROUNDS FOR THE INJUNCTION WERE THE INCONVENIENCE AND EXPENSE TO
THE ILLINOIS CENTRAL OF TAKING ITS MEMPHIS EMPLOYEES TO ST. LOUIS, AND
THE RESULTING BURDEN UPON INTERSTATE COMMERCE.  THE ANTICIPATED EXTRA
EXPENSE WAS SEVERAL HUNDRED DOLLARS PER DAY FOR AN ESTIMATED TWO DAYS
OF ACTUAL TRIAL AND WHATEVER ADDITIONAL TIME MIGHT BE LOST BY
CONTINUANCES OR DELAY.  INCONVENIENCE WAS EXPECTED THROUGH THE
WITHDRAWAL OF SOME TWELVE TO TWENTY EMPLOYEES AND OFFICIALS FROM THEIR
DUTIES FOR THE SAME PERIOD.  THE DEFENSE RELIED UPON A TIMELY PLEA THAT
SEC. 6 OF THE F.E.L.A. PREVENTED THE ENJOINING OF PROCEEDINGS IN THE
MISSOURI COURTS. 

THE TRIAL COURT FOUND THAT THE CONTINUED PROSECUTION OF THE PENDING
MISSOURI CASE WOULD BE "OPPRESSIVE AND INEQUITABLE" TO THE ILLINOIS
CENTRAL AND "A BURDEN ON THE COMMERCE AND BUSINESS OF THE
COMPLAINANT."  AS A MATTER OF LAW, THE COURT CONCLUDED, HOWEVER, THAT
THE ILLINOIS CENTRAL WAS NOT ENTITLED TO PERMANENT INJUNCTIONS.  ON
APPEAL THE COURT OF APPEALS REVERSED THE DECREE AND MADE THE TEMPORARY
INJUNCTIONS PERMANENT.  FURTHER STATE REVIEW BY CERTIORARI IN THE
SUPREME COURT OF TENNESSEE WAS REFUSED, AND WE GRANTED CERTIORARI TO
THE COURT OF APPEALS TO SETTLE AN IMPORTANT FEDERAL QUESTION  FN2  AS
TO THE APPLICABILITY OF SEC. 6 OF THE F.E.L.A. TO THIS SITUATION.  314
U.S. 602.  CF. PAYNE V. KNAPP, 197 IOWA 737, 198 N.W. 62; PETERSON V.
CHICAGO, B. & Q.R. CO., 187 MINN. 228, 244 N.W. 823; BALTIMORE & OHIO
R. CO. V. KEPNER, 137 OHIO ST. 409, 30 N.E.2D 982, AFFIRMED 314 U.S.
44. 

THE KEPNER CASE DEALT WITH THE POWER OF A STATE COURT TO ENJOIN A
RESIDENT FROM CONTINUED PROSECUTION OF A SUIT UNDER THE F.E.L.A. IN A
DISTANT FEDERAL DISTRICT COURT ON THE GROUND OF INEQUITY, VEXATIOUSNESS
AND HARASSMENT.  THE DECISION DENIED THE POWER TO INTERFERE WITH THE
PRIVILEGES OF FEDERAL VENUE "FOR THE BENEFIT OF THE CARRIER OR THE
NATIONAL TRANSPORTATION SYSTEM." 

AS IN THE KEPNER CASE, THERE IS IN THIS CASE NO OCCASION TO GO INTO
THE QUESTION OF THE AVAILABILITY, AS SUPPORT FOR AN INJUNCTION, OF A
CHARGE OF INTERFERENCE WITH INTERSTATE COMMERCE BY REASON OF THE BURDEN
OF EXPENSE AND INCONVENIENCE.  THE TRIAL COURT FOUND A BURDEN ON THE
COMMERCE OF THE ILLINOIS CENTRAL, BUT MADE NO FINDING AS TO ANY BURDEN
ON INTERSTATE COMMERCE.  MOREOVER, THE COURT OF APPEALS STATED THAT THE
ILLINOIS CENTRAL "EXPRESSLY ABANDONED THE CONTENTION" "THAT THE
PROSECUTION OF THE SUIT IN ST. LOUIS WAS A BURDEN ON INTERSTATE
COMMERCE."  NO CONTENTION IS MADE HERE THAT THERE IS ANY SUCH BURDEN OR
THAT THE ILLINOIS CENTRAL IS NOT DOING SUBSTANTIAL BUSINESS IN
MISSOURI, AS FOUND BY THE TRIAL COURT.  IT OPERATES DAILY PASSENGER
TRAINS WITH ITS OWN CREWS INTO ST. LOUIS OVER THE ST. LOUIS TERMINAL
COMPANY TRACKS, MAINTAINS PASSENGER AND FREIGHT OFFICES AND HAD TOTAL
RECEIPTS, IN ST. LOUIS, OF A MILLION-AND-A-HALF THE YEAR THE SUIT WAS
FILED.  UNDER THE RULE ANNOUNCED IN DENVER & R.G.W.R. CO. V. TERTE, 284
U.S. 284, 287, THE ILLINOIS CENTRAL IS PROPERLY SUABLE IN MISSOURI.  IN
THE KEPNER CASE, 314 U.S. 44, 51, WE POINTED OUT, WITH A DISCUSSION OF
THE APPLICABLE CASES, THAT THE CARRIER MUST SUBMIT TO INCONVENIENCE AND
EXPENSE, IF THERE IS JURISDICTION, "ALTHOUGH THEREBY INTERSTATE
COMMERCE IS INCIDENTALLY BURDENED."  THERE IS NO OCCASION TO REPEAT THE
COMMENTS HERE.  THE SPECIFIC DECLARATION IN SEC. 6 THAT THE UNITED
STATES COURTS SHOULD HAVE CONCURRENT JURISDICTION WITH THOSE OF THE
SEVERAL STATES, AND THE PROHIBITION AGAINST REMOVAL, POINT CLEARLY TO
THE CONCLUSION THAT CONGRESS HAS EXERCISED ITS AUTHORITY OVER
INTERSTATE COMMERCE TO THE EXTENT OF PERMITTING SUITS IN STATE COURTS,
DESPITE THE INCIDENTAL BURDEN, WHERE PROCESS MAY BE OBTAINED ON A
DEFENDANT, NOT MERELY SOLICITING BUSINESS BUT ACTUALLY CARRYING ON
RAILROADING BY OPERATING TRAINS AND MAINTAINING TRAFFIC OFFICES WITHIN
THE TERRITORY OF THE COURT'S JURISDICTION.  FN3 

THE REAL POINT OF CONTROVERSY HERE IS WHETHER THAT PORTION OF SEC. 6
OF THE F.E.L.A., WHICH HOLDS LITIGATION IN THE STATE COURT WHERE IT IS
INSTITUTED, PREVENTS THE COURT OF ANOTHER STATE FROM ENJOINING
CITIZENS, WITHIN ITS JURISDICTION, FROM CONTINUED PROSECUTION OF THE
SUIT ON GROUNDS OF INEQUITY.  HERE, AS IN KEPNER'S CASE, THERE IS NO
QUESTION BUT THAT THE MISSOURI COURT HAS VENUE OF THE PROCEEDING. 
HERE, TOO, WE NEED TO LOOK NO FARTHER INTO TENNESSEE LAW THAN THE
OPINION OF THE STATE'S HIGHEST COURT, IN THIS RECORD, TO CONCLUDE THAT
UNDER STATE LAW A COURT OF EQUITY MAY ENJOIN A RESIDENT CITIZEN FROM
ATTEMPTING TO ENFORCE HIS RIGHTS, OPPRESSIVELY AND INEQUITABLY,  FN4
AND THAT THE EXPENSE AND INCONVENIENCE HEREINBEFORE SET OUT RESULTED IN
OPPRESSIVENESS AND INCONVENIENCE IN THE EYE OF THE STATE COURT. 

IN THE LEGISLATIVE HISTORY OF SEC. 6,  FN5  THE PROVISION THAT
REMOVAL MAY NOT BE HAD FROM A "STATE COURT OF COMPETENT JURISDICTION"
WAS ADDED TO THE HOUSE BILL ON THE FLOOR OF THE SENATE AND LATER
ACCEPTED BY THE HOUSE, IN ORDER TO ASSURE A HEARING TO THE EMPLOYEE IN
A STATE COURT.  WORDS WERE SIMULTANEOUSLY ADOPTED RECOGNIZING THE
JURISDICTION OF THE STATE COURTS BY PROVIDING THAT THE FEDERAL
JURISDICTION SHOULD BE CONCURRENT.  THE VENUE OF STATE COURT SUITS WAS
LEFT TO THE PRACTICE OF THE FORUM.  THE OPPORTUNITY TO PRESENT CAUSES
OF ACTION ARISING UNDER THE F.E.L.A. IN THE STATE COURTS CAME, HOWEVER,
NOT FROM THE STATE LAW BUT FROM THE FEDERAL.  BY VIRTUE OF THE
CONSTITUTION, THE COURTS OF THE SEVERAL STATES MUST REMAIN OPEN TO SUCH
LITIGANTS ON THE SAME BASIS THAT THEY ARE OPEN TO LITIGANTS WITH CAUSES
OF ACTION SPRINGING FROM A DIFFERENT SOURCE.  THIS IS SO BECAUSE THE
FEDERAL CONSTITUTION MAKES THE LAWS OF THE UNITED STATES THE SUPREME
LAW OF THE LAND, BINDING ON EVERY CITIZEN AND EVERY COURT AND
ENFORCEABLE WHEREVER JURISDICTION IS ADEQUATE FOR THE PURPOSE.  SECOND
EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 56-59.  THE MISSOURI COURT HERE
INVOLVED MUST PERMIT THIS LITIGATION.  TO DENY CITIZENS FROM OTHER
STATES, SUITORS UNDER F.E.L.A., ACCESS TO ITS COURTS WOULD, IF IT
PERMITTED ACCESS TO ITS OWN CITIZENS, VIOLATE THE PRIVILEGES AND
IMMUNITIES CLAUSE.  CONSTITUTION, ART. IV, SEC. 2; MCKNETT V. ST. LOUIS
& S.F. RY. CO., 292 U.S. 230, 233.  FN6  SINCE THE EXISTENCE OF THE
CAUSE OF ACTION AND THE PRIVILEGE OF VINDICATING RIGHTS UNDER THE
F.E.L.A. IN STATE COURTS SPRING FROM FEDERAL LAW, THE RIGHT TO SUE IN
STATE COURTS OF PROPER VENUE WHERE THEIR JURISDICTION IS ADEQUATE IS OF
THE SAME QUALITY AS THE RIGHT TO SUE IN FEDERAL COURTS.  IT IS NO MORE
SUBJECT TO INTERFERENCE BY STATE ACTION THAN WAS THE FEDERAL VENUE IN
THE KEPNER CASE. 

THIS IS NOT TO SAY THAT STATES CANNOT CONTROL THEIR COURTS.  WE DO
NOT DEAL HERE WITH THE POWER OF MISSOURI BY JUDICIAL DECISION OR
LEGISLATIVE ENACTMENT TO REGULATE THE USE OF ITS COURTS GENERALLY, AS
WAS APPROVED IN THE DOUGLAS OR THE CHAMBERS CASES, NOTE 6 SUPRA.  WE
ARE CONSIDERING ANOTHER STATE'S POWER TO SO CONTROL ITS OWN CITIZENS
THAT THEY CANNOT EXERCISE THE FEDERAL PRIVILEGE OF LITIGATING A FEDERAL
RIGHT IN THE COURT OF ANOTHER STATE. 

STATE COURTS HAVE ASSUMED THE RIGHT TO ENJOIN THEIR CITIZENS FROM
PROCEEDING IN THE COURTS OF OTHER STATES.  THIS WAS DONE, FOR EXAMPLE,
IN REED'S ADMRX.  V. ILLINOIS CENTRAL R. CO., 182 KY. 455, 206 S.W.
794.  THE BASIS OF THE DECISION WAS THE INEQUITY OF ALLOWING A SUIT AT
A DISTANT POINT IN A STATE OR FEDERAL COURT, PAGE 464.  FN7  REED'S
CASE WAS RELIED UPON BY KERN V. CLEVELAND, C., C. & ST. L. RY. CO., 204
IND. 595, 185 N.E. 446, FOR THE AUTHORITY OF A STATE COURT TO ENJOIN
ITS CITIZENS FROM INEQUITABLE CONDUCT UNDER THE F.E.L.A.  OTHER STATE
COURTS DENY THEIR AUTHORITY TO ISSUE SUCH INJUNCTIONS.  FN8 

THE PERMISSION GRANTED BY CONGRESS TO SUE IN STATE COURTS MAY BE
EXERCISED ONLY WHERE THE CARRIER IS FOUND DOING BUSINESS.  IF SUITS IN
FEDERAL DISTRICT COURTS AT THOSE POINTS DO NOT UNDULY BURDEN INTERSTATE
COMMERCE, SUITS IN SIMILARLY LOCATED STATE COURTS CANNOT BE
BURDENSOME.  AS CONGRESS HAS PERMITTED BOTH THE STATE AND FEDERAL
SUITS, ITS DETERMINATION THAT THE CARRIERS MUST BEAR THE INCIDENTAL
BURDEN IS A DETERMINATION THAT THE STATE COURTS MAY NOT TREAT THE
NORMAL EXPENSE AND INCONVENIENCE OF TRIAL IN PERMITTED PLACES, SUCH AS
THE ONE SELECTED HERE, AS INEQUITABLE AND UNCONSCIONABLE. 

THE JUDGMENT BELOW IS REVERSED AND THE CAUSE IS REMANDED TO THE COURT
OF APPEALS OF TENNESSEE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED. 

FN1  36 STAT. 291.  "SEC.  6.  THAT NO ACTION SHALL BE MAINTAINED
UNDER THIS ACT UNLESS COMMENCED WITHIN TWO YEARS FROM THE DAY THE CAUSE
OF ACTION ACCRUED. 

"UNDER THIS ACT AN ACTION MAY BE BROUGHT IN A CIRCUIT 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 JURISDICTION
OF THE COURTS OF THE UNITED STATES UNDER THIS ACT SHALL BE CONCURRENT
WITH THAT OF THE COURTS OF THE SEVERAL STATES, AND NO CASE ARISING
UNDER THIS ACT AND BROUGHT IN ANY STATE COURT OF COMPETENT JURISDICTION
SHALL BE REMOVED TO ANY COURT OF THE UNITED STATES."  45 U.S.C. SEC.
56. 

FN2  JUDICIAL CODE SEC. 237(B).  SOUTHERN RY. CO. V. PAINTER, 314
U.S. 155, 159-60:  "IF A STATE COURT PROCEEDS AS THE CHANCERY COURT OF
TENNESSEE ACTED, THE ULTIMATE VINDICATION OF ANY FEDERAL RIGHT LIES
WITH THIS COURT."  BALTIMORE & OHIO R. CO. V. KEPNER, 314 U.S. 44, 52. 

FN3  HOFFMAN V. MISSOURI EX REL. FORAKER, 274 U.S. 21.  CF.
INTERNATIONAL MILLING CO. V. COLUMBIA CO., 292 U.S. 511, LIMITING DAVIS
V. FARMERS CO-OPERATIVE CO., 262 U.S. 312; ATCHISON, T. & S.F. RY. CO.
V. WELLS, 265 U.S. 101, AND MICHIGAN CENTRAL R. CO. V. MIX, 278 U.S.
492, TO THE RULE THAT SUITS UPON EXTRA-STATE CAUSES OF ACTION UNDER
F.E.L.A. BURDEN COMMERCE AND WILL NOT BE PERMITTED IN COURTS OF STATES
WHERE THE DEFENDANT CARRIERS DO NO MORE THAN MAINTAIN FACILITIES FOR
SOLICITATION OF BUSINESS.  THE THREE CASES LAST MENTIONED AND THE
FORAKER CASE WERE ALL WRITTEN BY THE SAME JUSTICE, WITHIN THE SPACE OF
A FEW YEARS. 

FN4  CF. CHAMBERS V. BALTIMORE & OHIO R. CO., 207 U.S. 142, 149. 

FN5  HOUSE RESOLUTION 17263, 61ST CONGRESS, 2D SESSION, WHICH
EVENTUALLY BECAME THE ACT OF 1910, CONTAINED NO PROHIBITION OR
RESTRICTION UPON REMOVAL OF SUITS FROM STATE COURTS WHEN IT PASSED THE
HOUSE, AND WAS REPORTED TO THE SENATE BY THE SENATE COMMITTEE ON THE
JUDICIARY.  SEN. REP. NO. 432, 61ST CONG., 2D SESS., MARCH 22, 1910. 
UPON THE FLOOR OF THE SENATE SEVERAL AMENDMENTS WERE PROPOSED, VARYING
IN TERMS, BUT ALL SEEKING TO ACHIEVE SOME SUCH LIMITATION.  45 CONG.
REC. 3995, 3998, 4051.  SENATOR PAYNTER'S SECOND VERSION WAS THE
AMENDMENT EVENTUALLY ADOPTED.  45 CONG. REC. 4093.  THE HOUSE CONCURRED
IN THE SENATE AMENDMENT WITHOUT MODIFICATION.  45 CONG. REC. 4159. 

THE REASON FOR THE AMENDMENT WAS STATED BY SENATOR PAYNTER THUS: 

"I OFFER AN AMENDMENT WHICH WILL GIVE TO THE PLAINTIFF THE RIGHT TO
SELECT THE FORUM IN WHICH HIS CASE SHALL BE TRIED.  HE CAN SELECT THE
FEDERAL OR THE STATE COURT, AS HE MAY PREFER, TO TRY HIS CASE ARISING
UNDER THE ACT IN QUESTION."  P. 4051. 

"IF THIS AMENDMENT IS ADOPTED, THE CONGRESS HAS NOT CONFERRED BY THE
ACT UNDER CONSIDERATION THE EXCLUSIVE JURISDICTION UPON STATE COURTS. 
THE PLAINTIFF CAN CHOOSE EITHER THE FEDERAL OR STATE COURT IN WHICH TO
PROSECUTE HIS ACTION.  THE EFFECT OF MY AMENDMENT IS TO PREVENT THE
REMOVAL OF THE ACTION FROM THE STATE COURTS WHEN BROUGHT THERE."  P.
4093.    FN6  CHAMBERS V. BALTIMORE & OHIO R. CO., 207 U.S. 142, OR
DOUGLAS V. NEW YORK, N.H. & H.R. CO., 279 U.S. 377, DO NOT IMPINGE UPON
THIS PRINCIPLE.  IN THE FORMER CASE, AN OHIO STATUTE FORBADE SUITS IN
ITS COURTS FOR WRONGFUL DEATH OCCURRING IN ANOTHER STATE UNLESS THE
DECEDENT WAS A CITIZEN OF OHIO.  THIS COURT SAW NO DISCRIMINATION
AGAINST PERSONAL REPRESENTATIVES OF ANY DECEDENT, SINCE THEIR RIGHT TO
SUE DID NOT DEPEND UPON THEIR CITIZENSHIP BUT UPON THE CITIZENSHIP OF
THEIR DECEDENT.  IN THE LATTER CASE, A STATUTE OF NEW YORK, WHICH GAVE
ONLY DISCRETIONARY JURISDICTION TO SUITS BY NONRESIDENTS BUT COMPULSORY
JURISDICTION TO SUITS BY RESIDENTS WAS HELD VALID BECAUSE IT TREATED
CITIZENS AND NONCITIZENS ALIKE AND TESTED THEIR RIGHT TO MAINTAIN AN
ACTION BY THEIR RESIDENCE OR NONRESIDENCE. 

FN7  THIS IS NOT THE POSITION OF THE FEDERAL COURTS.  CONNELLY V.
CENTRAL R. CO., 238 F. 932; SCHENDEL V. MCGEE, 300 F. 273, 278;
CHESAPEAKE & OHIO RY. CO. V. VIGOR, 90 F.2D 7. 

FN8  MISSOURI-KANSAS-TEXAS R. CO. V. BALL, 126 KAN. 745, 271 P. 313;
MOBILE & OHIO R. CO. V. PARRENT, 260 ILL. APP. 284; LANCASTER V. DUNN,
153 LA. 15, 95 SO. 385. 

MR. JUSTICE JACKSON, CONCURRING: 

I AGREE WITH THE CONCLUSION AND, WITH EXCEPTIONS STATED HEREIN, WITH
THE OPINION OF MR. JUSTICE REED, THOUGH I AM NOT ABLE TO SUBLIMATE THE
CONFLICT THAT UNDERLIES THIS CASE TO THE LEVEL OF EITHER OF THE
CONFLICTING OPINIONS.  REALISTICALLY CONSIDERED, THE ISSUE IS EARTHY
AND UNPRINCIPLED.  SO VIEWED, THE REAL ISSUE IS WHETHER A PLAINTIFF
WITH A CAUSE OF ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT MAY
GO SHOPPING FOR A JUDGE OR A JURY BELIEVED TO BE MORE FAVORABLE THAN HE
WOULD FIND IN HIS HOME FORUM.  AN ADVANTAGE WHICH IT IS HOPED WILL BE
REFLECTED IN A JUDGMENT IS WHAT MAKES PLAINTIFFS LEAVE HOME AND INCUR
BURDENS OF EXPENSE AND INCONVENIENCE THAT WOULD BE REGARDED AS
OPPRESSIVE IF FORCED UPON THEM.  AND THAT IS WHAT MAKES RAILROADS SEEK
INJUNCTIONS SUCH AS THIS ONE. 

THE JUDICIARY HAS NEVER FAVORED THIS SORT OF SHOPPING FOR A FORUM. 
IT HAS SOUGHT TO PROTECT ITS OWN GOOD NAME AS WELL AS TO PROTECT
DEFENDANTS BY INJUNCTIONS AGAINST THE PRACTICE OF SEEKING OUT SOFT
SPOTS IN THE JUDICIAL SYSTEM IN WHICH TO BRING PARTICULAR KINDS OF
LITIGATION.  BUT THE JUDGES, WITH LAWYERLY INDIRECTION, HAVE NOT AVOWED
THE INTEREST OF THE JUDICIARY IN ORDERLY RESORT TO THE COURTS AS A
BASIS FOR THEIR DECISION, AND HAVE CAST THEIR PROTECTIVE DOCTRINES IN
TERMS OF SHELTERING DEFENDANTS AGAINST VEXATIOUS AND HARASSING SUITS. 
THIS JUDICIAL TREATMENT OF THE SUBJECT OF VENUE LEADS CONGRESS AND THE
PARTIES TO THINK OF THE CHOICE OF A FORUM AS A PRIVATE MATTER BETWEEN
LITIGANTS, AND IN CASES LIKE THE PRESENT OBSCURES THE PUBLIC INTEREST
IN VENUE PRACTICES BEHIND A RATHER FANTASTIC FICTION THAT A WIDOW IS
HARASSING THE ILLINOIS CENTRAL RAILROAD.  IF CONGRESS HAD LEFT US FREE
TO CONSULT THE ULTIMATE PUBLIC INTEREST IN ORDERLY RESORT TO THE
JUDICIAL SYSTEM, I SHOULD AGREE WITH MR. JUSTICE FRANKFURTER'S
CONCLUSION.  BUT THE PLAINTIFFS SAY THAT THEY GO SHOPPING, NOT BY LEAVE
OF THE COURTS THEMSELVES, BUT BY THE AUTHORITY OF CONGRESS.  WHETHER
THE CONGRESS HAS GRANTED SUCH LATITUDE IS OUR QUESTION. 

UNLESS THERE IS SOME HIDDEN MEANING IN THE LANGUAGE CONGRESS HAS
EMPLOYED, THE INJURED WORKMAN OR HIS SURVIVING DEPENDENTS MAY CHOOSE
FROM THE ENTIRE TERRITORY SERVED BY THE RAILROAD ANY PLACE IN WHICH TO
SUE, AND IN WHICH TO CHOOSE EITHER A FEDERAL OR A STATE COURT OF WHICH
TO ASK HIS REMEDY.  THERE IS NOTHING WHICH REQUIRES A PLAINTIFF TO WHOM
SUCH A CHOICE IS GIVEN TO EXERCISE IT IN A SELF-DENYING OR LARGE
HEARTED MANNER.  THERE IS NOTHING TO RESTRAIN USE OF THAT PRIVILEGE, AS
ALL CHOICES OF TRIBUNAL ARE COMMONLY USED BY ALL PLAINTIFFS TO GET AWAY
FROM JUDGES WHO ARE CONSIDERED TO BE UNSYMPATHETIC, AND TO GET BEFORE
THOSE WHO ARE CONSIDERED MORE FAVORABLE; TO GET AWAY FROM JURIES
THOUGHT TO BE SMALL-MINDED IN THE MATTER OF VERDICTS, AND TO GET TO
THOSE THOUGHT TO BE GENEROUS; TO ESCAPE COURTS WHOSE PROCEDURES ARE
BURDENSOME TO THE PLAINTIFF, AND TO SEEK OUT COURTS WHOSE PROCEDURES
MAKE THE GOING EASY. 

THAT SUCH A PRIVILEGE PUTS A BURDEN ON INTERSTATE COMMERCE MAY WELL
BE ADMITTED, BUT CONGRESS HAS THE POWER TO BURDEN.  THE FEDERAL
EMPLOYERS' LIABILITY ACT ITSELF LEAVES INTERSTATE COMMERCE UNDER THE
BURDEN OF A MEDIEVAL SYSTEM OF COMPENSATING THE INJURED RAILROAD WORKER
OR HIS SURVIVORS.  HE IS NOT GIVEN A REMEDY, BUT ONLY A LAWSUIT.  IT IS
WELL UNDERSTOOD THAT IN MOST CASES HE WILL BE UNABLE TO PURSUE THAT
EXCEPT BY SPLITTING HIS SPECULATIVE PROSPECTS WITH A LAWYER.  THE
FUNCTIONING OF THIS BACKWARD SYSTEM OF DEALING WITH INDUSTRIAL
ACCIDENTS IN INTERSTATE COMMERCE BURDENS IT WITH PERHAPS TWO DOLLARS OF
JUDGMENT FOR EVERY DOLLAR THAT ACTUALLY REACHES THOSE WHO HAVE BEEN
DAMAGED, AND IT LEAVES THE BURDEN OF MANY INJURIES TO BE BORNE BY THEM
UTTERLY UNCOMPENSATED.  SUCH BEING THE MAJOR BURDEN UNDER WHICH THE
WORKMEN AND THE INDUSTRY MUST FUNCTION, I SEE NO REASON TO BELIEVE THAT
CONGRESS COULD NOT HAVE INTENDED THE RELATIVELY MINOR ADDITIONAL BURDEN
TO INTERSTATE COMMERCE FROM LOADING THE DICE A LITTLE IN FAVOR OF THE
WORKMAN IN THE MATTER OF VENUE.  IT SEEMS MORE PROBABLE THAT CONGRESS
INTENDED TO GIVE THE DISADVANTAGED WORKMAN SOME LEVERAGE IN THE CHOICE
OF VENUE, THAN THAT IT INTENDED TO LEAVE HIM IN A POSITION WHERE THE
RAILROAD COULD FORCE HIM TO TRY ONE LAWSUIT AT HOME TO FIND OUT WHETHER
HE WOULD BE ALLOWED TO TRY HIS PRINCIPAL LAWSUIT ELSEWHERE.  THIS
LATTER WOULD BE A FREQUENT RESULT IF WE UPHELD THE CONTENTION MADE IN
THIS CASE AND IN THE KEPNER CASE.  I THINK, THEREFORE, THAT THE
PETITIONER HAD A RIGHT TO RESORT TO THE MISSOURI COURT UNDER THE
CIRCUMSTANCES OF THIS CASE FOR HER REMEDY. 

I DO NOT, HOWEVER, AGREE WITH THE STATEMENT IN MR. JUSTICE REED'S
OPINION THAT "THE MISSOURI COURT HERE INVOLVED MUST PERMIT THIS
LITIGATION."  IT IS VERY DOUBTFUL IF ANY REQUIREMENT CAN BE SPELLED OUT
OF THE FEDERAL CONSTITUTION THAT A STATE MUST FURNISH A FORUM FOR A
NONRESIDENT PLAINTIFF AND A FOREIGN CORPORATION TO FIGHT OUT ISSUES
IMPORTED FROM ANOTHER STATE WHERE THE CAUSE OF ACTION AROSE.  IT SEEMS
UNNECESSARY TO DECIDE NOW WHETHER THIS LITIGATION COULD BE IMPOSED ON
THE MISSOURI COURT, FOR IT APPEARS TO HAVE EMBRACED THE LITIGATION. 
EVEN IF MISSOURI, BY REASON OF ITS CONTROL OF ITS OWN COURTS MIGHT
REFUSE TO OPEN THEM TO SUCH A CASE, IT DOES NOT FOLLOW THAT ANOTHER
STATE MAY CLOSE MISSOURI'S COURTS TO ONE WITH A FEDERAL CAUSE OF
ACTION.  IF MISSOURI ELECTS TO ENTERTAIN THE CASE, THE COURTS OF NO
OTHER STATE CAN OBSTRUCT OR PREVENT ITS EXERCISE OF JURISDICTION AS
CONFERRED BY THE FEDERAL STATUTE OR ITS RIGHT TO OBTAIN EVIDENCE AND TO
DISTRIBUTE THE PROCEEDS, IF ANY, IN ACCORDANCE WITH THE FEDERAL
EMPLOYERS' LIABILITY ACT.  I THEREFORE FAVOR REVERSAL. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

THE DECISION IN THIS CASE MUTILATES PRINCIPLES THAT HAVE LONG BEEN
REGARDED AS BASIC IN THE LAW.  FEW LEGAL DOCTRINES HAVE BEEN MORE
UNIVERSALLY ACCEPTED THAN THOSE RECOGNIZING THE POWERS WHICH THIS COURT
NOW DENIES TO THE STATES WHEN SUITS UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT ARE BROUGHT IN STATE COURTS:  THE POWER OF A COURT TO
PREVENT INJUSTICE BY RESTRAINING A PERSON SUBJECT TO ITS AUTHORITY FROM
MAINTAINING AN INEQUITABLE SUIT IN THE COURTS OF ANOTHER STATE, COLE V.
CUNNINGHAM, 133 U.S. 107; THE RIGHT OF A COURT TO DECLINE ITS
FACILITIES TO A SUIT THAT "IN THE INTEREST OF JUSTICE" SHOULD BE TRIED
ELSEWHERE, CANADA MALTING CO. V. PATERSON CO., 285 U.S. 413, 422-23. 
THE DECISION DISREGARDS THE CONSTITUTIONAL RELATIONSHIP BETWEEN THE
"JUDICIAL POWER" OF THE FEDERAL GOVERNMENT AND THAT OF THE STATES
WHEREBY STATE COURTS ENFORCE FEDERAL RIGHTS (WHEN SUCH REMEDIES HAVE
NOT BEEN EXCLUSIVELY ENTRUSTED TO THE FEDERAL COURTS) AS PART OF THEIR
"DUTY TO SAFEGUARD AND ENFORCE THE RIGHT OF EVERY CITIZEN WITHOUT
REFERENCE TO THE PARTICULAR EXERCISE OF GOVERNMENTAL POWER FROM WHICH
THE RIGHT MAY HAVE ARISEN."  MINNEAPOLIS & ST. LOUIS R. CO. V.
BOMBOLIS, 241 U.S. 211, 222. 

FOR A DECISION SO FAR-REACHING IN ITS IMPLICATIONS, WARRANT IS FOUND
IN THE INARTICULATE RADIATIONS OF SEC. 6 OF THE 1910 AMENDMENT TO THE
FEDERAL EMPLOYERS' LIABILITY ACT.  WHILE THE WORDS OF A STATUTE DO NOT
BY THEMSELVES DISTIL ITS MEANING, WE MUST AT LEAST BEGIN WITH THEM. 
THE LANGUAGE OF SEC. 6 IS SIMPLE AND DIRECT.  AFTER ESTABLISHING A TWO
YEAR PERIOD OF LIMITATIONS, IT CONTINUES:  "UNDER THIS ACT AN ACTION
MAY BE BROUGHT IN A CIRCUIT 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 JURISDICTION OF THE COURTS OF THE UNITED
STATES UNDER THIS ACT SHALL BE CONCURRENT WITH THAT OF THE COURTS OF
THE SEVERAL STATES, AND NO CASE ARISING UNDER THIS ACT AND BROUGHT IN
ANY STATE COURT OF COMPETENT JURISDICTION SHALL BE REMOVED TO ANY COURT
OF THE UNITED STATES."  36 STAT. 291. 

THIS IS A CONVENTIONAL PROVISION.  THERE IS NOTHING NOVEL OR
DISTINCTIVE ABOUT IT.  RECOGNITION OF CONCURRENT JURISDICTION IN THE
STATE COURTS TO VINDICATE FEDERAL RIGHTS IS FOUND IN THE FIRST
JUDICIARY ACT OF 1789.  1 STAT. 73, 77.  AND THE STATUTE BOOKS ARE
REPLETE WITH INSTANCES IN WHICH CONGRESS HAS ACKNOWLEDGED THE EXISTENCE
OF THIS JURISDICTION IN THE STATE COURTS UNLESS EXPLICITLY WITHHELD
FROM THEM.  SEE THE DISCUSSION OF MR. JUSTICE BRADLEY IN CLAFLIN V.
HOUSEMAN, 93 U.S. 130, 139-43.  THE ESSENCE OF SEC. 6 IS MERELY THAT
THE STATE COURTS ARE OPEN TO A PLAINTIFF SUING UNDER THE ACT, AND THAT
IF HE CHOOSES TO BRING SUIT IN A STATE COURT, THE DEFENDANT MAY NOT
REMOVE THE CAUSE TO A FEDERAL COURT.  SO FAR AS LANGUAGE CONVEYS IDEAS,
THE ACT AFFORDS NO INTIMATION THAT CONGRESS INTENDED ANYTHING MORE. 

WE ARE NOT OF COURSE CONCERNED HERE, AS WE WERE IN THE KEPNER CASE,
DECIDED THE OTHER DAY, 314 U.S. 44, WITH AN ATTEMPT BY A STATE COURT TO
PREVENT RESORT TO A FEDERAL COURT.  HISTORICALLY, THE PROBLEM OF
INTERFERENCES, DIRECT OR INDIRECT, BETWEEN FEDERAL AND STATE COURTS IS
ENTIRELY SEPARATE FROM THE PROBLEM OF THE RELATIONS OF THE STATE COURTS
TO EACH OTHER.  SEE WARREN, FEDERAL AND STATE COURT INTERFERENCE, 43
HARV. L. REV. 345.  THE QUESTION NOW BEFORE US - RELATING TO THE POWER
OF A STATE TO ENJOIN THOSE SUBJECT TO ITS JURISDICTION FROM UNJUSTLY
RESORTING TO THE COURTS OF A SISTER STATE - IS AN ASPECT OF THE LATTER
PROBLEM.  IN THE KEPNER CASE, THIS COURT HELD ONLY THAT THE PROVISION
OF SEC. 6 "FILLED THE ENTIRE FIELD OF VENUE IN FEDERAL COURTS" AND THAT
WHAT HAD THUS BEEN LEGISLATIVELY GIVEN TO THE FEDERAL COURTS COULD NOT
JUDICIALLY BE TAKEN AWAY.  THE KEPNER DECISION CAST NO CLOUD UPON
DOUGLAS V. NEW YORK, N.H. & H.R. CO., 279 U.S. 377, WHICH SUSTAINED THE
POWER OF A STATE TO APPLY THE PRINCIPLE OF FORUM NON CONVENIENS TO
SUITS UNDER THE ACT BROUGHT IN ITS COURTS BY NON-RESIDENTS.  THE ISSUE
IN THE CASE AT BAR IS ESSENTIALLY ANOTHER PHASE OF THE PROBLEM IN THE
DOUGLAS CASE - WHETHER, MERELY BY AUTHORIZING ACCESS TO THE STATE
COURTS TO ENFORCE RIGHTS CREATED BY THE FEDERAL EMPLOYERS' LIABILITY
ACT, CONGRESS IMPLIEDLY REPEALED PRO TANTO THE MEANS FOR ACHIEVING
JUSTICE WHICH THE STATES CUSTOMARILY EMPLOY IN SIMILAR CASES. 
SPECIFICALLY, THE QUESTION FOR DECISION IS THIS:  HAS CONGRESS, BY
PROVIDING EXPLICITLY THAT STATE COURTS SHALL HAVE CONCURRENT
JURISDICTION OF SUITS UNDER THE ACT, WITHDRAWN FROM EACH STATE ITS
RECOGNIZED POWER TO ENJOIN PERSONS WITHIN ITS JURISDICTION FROM
BRINGING A SUIT UNDER THE ACT "CONTRARY TO EQUITY AND GOOD CONSCIENCE"
IN THE COURTS OF ANOTHER STATE?  THIS QUESTION WAS WHOLLY OUTSIDE THE
SCOPE OF THE KEPNER CASE.  IT WAS NOT PRESENTED, AND WAS THEREFORE NOT
DECIDED, BY THAT CASE. 

THE RELEVANT CIRCUMSTANCES HERE ARE THESE.  A RESIDENT OF TENNESSEE
WAS KILLED IN A RAILROAD ACCIDENT OCCURRING IN TENNESSEE.  THE
RAILROAD, AN ILLINOIS CORPORATION, HAS ITS PRINCIPAL OFFICES IN
TENNESSEE.  ALL OF THE WITNESSES RESIDE IN TENNESSEE, AS DO THE
DECEASED'S LEGAL REPRESENTATIVES.  BUT SUIT WAS BROUGHT IN A STATE
COURT OF MISSOURI, WHERE THE RAILROAD DOES SOME BUSINESS.  FINDING THAT
THE MISSOURI SUIT WAS "OPPRESSIVE AND INEQUITABLE," THE TENNESSEE COURT
OF APPEALS SUSTAINED THE POWER OF THE CHANCELLOR TO RESTRAIN THE
FURTHER PROSECUTION OF THAT SUIT.  THE FINDING THAT THE MISSOURI SUIT
WAS "OPPRESSIVE AND INEQUITABLE" WAS CHALLENGED BY THE PETITIONERS
NEITHER BEFORE US NOR IN THE COURTS OF TENNESSEE, AND THE PROPRIETY OF
THE ACTION TAKEN BY THE TENNESSEE COURT, AS A MATTER OF EQUITABLE
DISCRETION, IS NOT HERE IN ISSUE.  WE ARE CALLED UPON TO DECIDE ONLY
WHETHER CONGRESS HAS DEPRIVED TENNESSEE OF THE POWER WHICH IT HAS
ASSERTED IN THIS CASE. 

IT IS ADMITTED THAT THE COURTS OF TENNESSEE CUSTOMARILY EXERCISE THIS
POWER IN SITUATIONS LIKE THE PRESENT CASE.  SEE AMERICAN EXPRESS CO. V.
FOX, 135 TENN. 489, 187 S.W. 1117.  IF THE ACCIDENT HERE HAD OCCURRED
WHILE THE DECEASED WAS ENGAGED IN INTRASTATE COMMERCE, AND CONSEQUENTLY
HAD NOT GIVEN RISE TO A RIGHT OF ACTION UNDER THE FEDERAL STATUTE,
TENNESSEE WOULD UNQUESTIONABLY HAVE HAD THE POWER TO DO WHAT SHE HAS
DONE HERE.  FOR WHILE THE PRIVILEGES AND IMMUNITIES CLAUSE, ART. IV,
SEC. 2, SECURES TO CITIZENS OF OTHER STATES SUCH RIGHT OF ACCESS TO THE
COURTS OF A STATE AS THAT STATE GIVES TO ITS OWN CITIZENS, CHAMBERS V.
BALTIMORE & OHIO R. CO., 207 U.S. 142, 148; MCKNETT V. ST. LOUIS & S.F.
RY. CO., 292 U.S. 230, 233, IT DOES NOT TAKE AWAY FROM A STATE ITS
HISTORIC POWER TO PREVENT UNJUST RESORT TO THE COURTS OF ANOTHER
STATE.  COLE V. CUNNINGHAM, 133 U.S. 107.  MOREOVER, THE CONSTITUTION
WOULD NOT PREVENT MISSOURI FROM DECLINING TO ENTERTAIN A SUIT TO
VINDICATE A FEDERAL RIGHT, SUCH AS WAS BROUGHT HERE, IF AN ACTION TO
ENFORCE A SIMILAR NON-FEDERAL RIGHT WOULD ALSO NOT LIE IN HER COURTS. 
THE AVAILABILITY OF STATE COURTS FOR THE ENFORCEMENT OF FEDERAL RIGHTS
HAS NOT RESULTED IN PUTTING FEDERAL RIGHTS ON ANY DIFFERENT FOOTING
FROM STATE RIGHTS.  "A STATE MAY NOT DISCRIMINATE AGAINST RIGHTS
ARISING UNDER FEDERAL LAWS," MCKNETT V. ST. LOUIS & S.F. RY. CO.,
SUPRA, AT 234, BUT NEITHER THE CONSTITUTION NOR CONGRESS HAS COMPELLED
THE STATES TO DISCRIMINATE IN FAVOR OF FEDERAL RIGHTS.  AND THIS COURT
HAS EXPRESSLY HELD THAT THE RIGHTS CREATED BY THE FEDERAL EMPLOYERS'
LIABILITY ACT ARE NOT DIFFERENT, IN THIS RESPECT, FROM OTHER FEDERAL
RIGHTS.  "AS TO THE GRANT OF JURISDICTION IN THE EMPLOYERS' LIABILITY
ACT, THAT STATUTE DOES NOT PURPORT TO REQUIRE STATE COURTS TO ENTERTAIN
SUITS ARISING UNDER IT, BUT ONLY TO EMPOWER THEM TO DO SO, SO FAR AS
THE AUTHORITY OF THE UNITED STATES IS CONCERNED."  DOUGLAS V. NEW YORK,
N.H. & H.R. CO., SUPRA, AT 387. 

THE UTILIZATION OF STATE COURTS FOR THE VINDICATION OF FEDERAL RIGHTS
DOES NOT REQUIRE THAT THEIR ESTABLISHED PROCEDURES BE REMODELLED OR
THAT THEIR CUSTOMARY MODES FOR ADMINISTERING JUSTICE BE RESTRICTED. 
"AND IT WAS OF COURSE PRESUMABLY AN APPRECIATION OF THE PRINCIPLES SO
THOROUGHLY SETTLED WHICH CAUSED CONGRESS IN THE ENACTMENT OF THE
EMPLOYERS' LIABILITY ACT TO CLEARLY CONTEMPLATE THE EXISTENCE OF A
CONCURRENT POWER AND DUTY OF BOTH FEDERAL AND STATE COURTS TO
ADMINISTER THE RIGHTS CONFERRED BY THE STATUTE IN ACCORDANCE WITH THE
MODES OF PROCEDURE PREVAILING IN SUCH COURTS."  MINNEAPOLIS & ST. LOUIS
R. CO. V. BOMBOLIS, 241 U.S. 211, 218; AND SEE SECOND EMPLOYERS'
LIABILITY CASES, 223 U.S. 1, 56.  THE MERE FACT THAT A FEDERAL RIGHT IS
THE BASIS OF SUIT CANNOT THEREFORE DEPRIVE THE STATE COURTS OF THE
POWER TO USE THEIR CUSTOMARY PROCEDURES FOR THE ACHIEVEMENT OF
JUSTICE.  IN SIMPLY TAKING ADVANTAGE OF THE FACILITIES AFFORDED BY THE
COURTS OF THE STATES, CONGRESS CANNOT BE DEEMED TO HAVE ALTERED THE
SETTLED JURISPRUDENCE OF THE STATES SO AS TO OPERATE MORE FAVORABLY FOR
FEDERAL RIGHTS THAN FOR SIMILAR RIGHTS CREATED BY THE STATES
THEMSELVES.  SUCH DRASTIC INROADS UPON THE AUTHORITY OF THE STATES
SHOULD BE MADE ONLY UPON CLEAR CONGRESSIONAL MANDATE. 

THE COURT FINDS SUCH A PLAIN COMMAND IN THE ACT BECAUSE CONGRESS HAS
EXPLICITLY PROVIDED IN SEC. 6 THAT THE JURISDICTION OF THE STATE COURTS
"SHALL BE CONCURRENT" WITH THAT OF THE FEDERAL COURTS.  BUT CONGRESS
THEREBY MERELY SPELT OUT WHAT HAS ALWAYS BEEN UNQUESTIONED
CONSTITUTIONAL DOCTRINE.  "IT IS A GENERAL RULE THAT THE GRANT OF
JURISDICTION TO ONE COURT DOES NOT, OF ITSELF, IMPLY THAT THE
JURISDICTION IS TO BE EXCLUSIVE.  ...  UPON THE STATE COURTS, EQUALLY
WITH THE COURTS OF THE UNION, RESTS THE OBLIGATION TO GUARD AND ENFORCE
EVERY RIGHT SECURED BY THE CONSTITUTION AND LAWS OF THE UNITED STATES
WHENEVER THOSE RIGHTS ARE INVOLVED IN ANY SUIT OR PROCEEDINGS BEFORE
THEM."  UNITED STATES V. BANK OF NEW YORK CO., 296 U.S. 463, 479; SEE
CLAFLIN V. HOUSEMAN, 93 U.S. 130, 136-37, ROBB V. CONNOLLY, 111 U.S.
624, 635-37.  AND IN GRUBB V. PUBLIC UTILITIES COMM'N, 281 U.S. 470,
476, THE COURT REAFFIRMED THE DOCTRINE THAT "THE STATE AND FEDERAL
COURTS HAVE CONCURRENT JURISDICTION OF SUITS OF A CIVIL NATURE ARISING
UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES, SAVE IN
EXCEPTIONAL INSTANCES WHERE THE JURISDICTION HAS BEEN RESTRICTED BY
CONGRESS TO THE FEDERAL COURTS."  THE SOURCE OF THESE FORMULATIONS IS
HAMILTON'S CLASSIC STATEMENT IN NO. 82 OF THE FEDERALIST
(SESQUICENTENNIAL ED., P. 536): 

"I HOLD THAT THE STATE COURTS WILL BE DIVESTED OF NO PART OF THEIR
PRIMITIVE JURISDICTION, FURTHER THAN MAY RELATE TO AN APPEAL; AND I AM
EVEN OF OPINION THAT IN EVERY CASE IN WHICH THEY WERE NOT EXPRESSLY
EXCLUDED BY THE FUTURE ACTS OF THE NATIONAL LEGISLATURE, THEY WILL OF
COURSE TAKE COGNIZANCE OF THE CAUSES TO WHICH THOSE ACTS MAY GIVE
BIRTH.  THIS I INFER FROM THE NATURE OF JUDICIARY POWER, AND FROM THE
GENERAL GENIUS OF THE SYSTEM.  THE JUDICIARY POWER OF EVERY GOVERNMENT
LOOKS BEYOND ITS OWN LOCAL OR MUNICIPAL LAWS, AND IN CIVIL CASES LAYS
HOLD OF ALL SUBJECTS OF LITIGATION BETWEN PARTIES WITHIN ITS
JURISDICTION, THOUGH THE CAUSES OF DISPUTE ARE RELATIVE TO THE LAWS OF
THE MOST DISTANT PART OF THE GLOBE.  ...  WHEN IN ADDITION TO THIS WE
CONSIDER THE STATE GOVERNMENTS AND THE NATIONAL GOVERNMENTS, AS THEY
TRULY ARE, IN THE LIGHT OF KINDRED SYSTEMS, AND AS PARTS OF ONE WHOLE,
THE INFERENCE SEEMS TO BE CONCLUSIVE, THAT THE STATE COURTS WOULD HAVE
A CONCURRENT JURISDICTION IN ALL CASES ARISING UNDER THE LAWS OF THE
UNION, WHERE IT WAS NOT EXPRESSLY PROHIBITED." 

THEREFORE, IF CONGRESS HAD BEEN SILENT WITH RESPECT TO THE
JURISDICTION OF STATE COURTS OF SUITS ARISING UNDER THE ACT, THE STATE
COURTS WOULD STILL HAVE HAD SUCH JURISDICTION.  IF IT BE SUGGESTED THAT
BY ARTICULATING WHAT WOULD OTHERWISE HAVE BEEN IMPLIED, CONGRESS MUST
HAVE HAD SOME PURPOSE, SOME INTEREST OF EMPHASIS, IT WOULD BE ENOUGH TO
SAY THAT SUCH PUNCTILIOUSNESS, AND PERHAPS REDUNDANCY, OF PHRASING IS
NOT UNCOMMON IN PROCEDURAL LEGISLATION.  BUT, IN ANY EVENT, THE
LEGISLATIVE HISTORY OF THE 1910 AMENDMENT CONCLUSIVELY SHOWS THAT
CONGRESS DID NOT INSERT THIS PROVISION IN ORDER TO CUT DOWN THE NORMAL
POWERS OF STATE COURTS.  THE CONCURRENT JURISDICTION OF THE STATE
COURTS WAS EXPLICITLY DEFINED IN ORDER TO DISSIPATE AN UNWARRANTED
DOUBT AS TO THE RIGHT AND DUTY OF STATE COURTS TO ENTERTAIN SUITS
ARISING UNDER THE ACT.  CONGRESS WANTED TO AVOID AN IMPLICATION OF
DENIAL TO THE STATE COURTS OF POWER TO ENTERTAIN CASES UNDER THE ACT,
AND NOT TO CREATE AN IMPLICATION OF DENIAL TO THE STATE COURTS OF THEIR
TRADITIONAL POWERS IN DEALING WITH SUCH CASES. 

THE ACT OF 1908 CONTAINED NO PROVISION SPECIFICALLY DEALING WITH
VENUE.  35 STAT. 65.  ON JANUARY 7, 1910, REPRESENTATIVE STERLING
INTRODUCED A BILL, H.R. 17263, THAT EVENTUALLY BECAME THE 1910
AMENDMENT TO THE ACT.  THE BILL HAD THIS PROVISION:  "THIS ACT SHALL
NOT BE CONSTRUED AS EXCLUDING THE EXERCISE OF A CONCURRENT JURISDICTION
OF CASES ARISING UNDER THE ACT BY THE COURTS OF THE SEVERAL STATES." 
THE HOUSE COMMITTEE ON THE JUDICIARY REPORTING ON THE BILL EXPLAINED
ITS PURPOSE: 

"IT IS PROPOSED TO FURTHER AMEND THE ACT BY MAKING THE JURISDICTION
OF THE COURTS OF THE UNITED STATES 'CONCURRENT WITH THE COURTS OF THE
SEVERAL STATES.' 

"THIS IS PROPOSED IN ORDER THAT THERE SHALL BE NO EXCUSE FOR COURTS
OF THE STATES TO FOLLOW IN THE ERROR OF  ...  HOXIE V. N.Y., N.H. &
H.R.R. CO. (82 CONN. 352)(73 ATLANTIC REP., 754) IN WHICH THE COURT
DECLINED JURISDICTION UPON THE GROUND, INTER ALIA, THAT CONGRESS DID
NOT INTEND THAT JURISDICTION OF CASES ARISING UNDER THE ACT SHOULD BE
ASSUMED BY STATE COURTS. 

"IT IS CLEAR UNDER THE DECISIONS OF THE SUPREME COURT OF THE UNITED
STATES, THAT THIS CONCLUSION OF THE CONNECTICUT COURT IS ERRONEOUS. 
AND THE REASONS RECITED BY THE CONNECTICUT COURT LEAD TO AN OPPOSITE
CONCLUSION FROM THAT WHICH THE OPINION DECLARES UPON THE SUBJECT.  BUT
NO HARM CAN COME, AND MUCH INJUSTICE AND WRONG TO SUITORS MAY BE
PREVENTED BY AN EXPRESS DECLARATION THAT THERE IS NO INTENT ON THE PART
OF CONGRESS TO CONFINE REMEDIAL ACTIONS BROUGHT UNDER THE EMPLOYERS'
LIABILITY ACT TO THE COURTS OF THE UNITED STATES."  H. REP. NO. 513,
61ST CONG., 2D SESS., P. 7. 

THE COMMITTEE ALSO RECOMMENDED THAT THE WORDING OF THE PROVISION BE
CHANGED TO READ AS FOLLOWS: "THE JURISDICTION OF THE COURTS OF THE
UNITED STATES UNDER THIS ACT SHALL BE CONCURRENT WITH THAT OF THE
COURTS OF THE SEVERAL STATES."  THIS LANGUAGE WAS EMBODIED IN THE ACT. 

WHEN THE BILL CAME TO THE FLOOR OF THE HOUSE, REPRESENTATIVE
STERLING, WHO WAS IN CHARGE OF THE MEASURE, UNDERSCORED THE SOLE REASON
FOR THE PROVISION: 

"THE SECOND CHANGE IN THE LAW PROVIDES THAT THE FEDERAL COURTS AND
THE STATE COURTS SHALL HAVE CONCURRENT JURISDICTION.  I AM VERY SURE
THAT THEY HAVE CONCURRENT JURISDICTION AS THE LAW IS NOW, BUT ON
ACCOUNT OF A DECISION OF ONE OF THE STATE COURTS OF CONNECTICUT, WHERE
ONE JUDGE DECLINED TO TAKE JURISDICTION IN A CASE BECAUSE IT WAS UNDER
A FEDERAL STATUTE, THE COMMITTEE THOUGHT BEST TO EXPRESSLY PROVIDE IN
THE LAW THAT THE FEDERAL COURTS AND THE STATE COURTS SHOULD HAVE
CONCURRENT JURISDICTION TO AVOID THE POSSIBILITY OF SUCH A CONSTRUCTION
IN THE FUTURE."  45 CONG. REC. 2253. 

IN REPLY TO A QUESTION AS TO THE COMMITTEE'S PURPOSE IN RECOMMENDING
THIS PROVISION, "DID YOU INTEND TO LIMIT THE STATE COURTS IN ANY WAY IN
THIS MATTER?", THE ANSWER WAS, "OH, NO; JUST THE CONTRARY."  45 CONG.
REC. 2254. 

WITH THESE AUTHORITATIVE EXPLANATIONS THE BILL WAS PASSED BY THE
HOUSE ON FEBRUARY 23, 1910.  45 CONG. REC. 2260.  IT WAS THEN SENT TO
THE SENATE AND THERE REFERRED TO ITS JUDICIARY COMMITTEE.  THE REPORT
OF THAT COMMITTEE REPEATED IN HAEC VERBA THE EXPLANATION OF THE
PROVISION MADE BY THE HOUSE COMMITTEE.  SEE SEN. REP. NO. 432, 61ST
CONG., 2D SESS., P. 5.  SENATOR BORAH, WHO STEERED THE BILL IN THE
SENATE, SAID: 

"THE AMENDMENT WHICH HAS BEEN PROPOSED IN THE LATTER PORTION OF
REASON OF A DECISION OF THE SUPREME COURT OF THE STATE OF CONNECTICUT. 
MY INDIVIDUAL VIEW IS THAT THE LAW IS NOW AS THE AMENDMENT ATTEMPTS TO
MAKE IT - THAT IS TO SAY, THAT BOTH THE FEDERAL AND STATE COURTS HAVE
JURISDICTION OF THIS MATTER - CONCURRENT JURISDICTION.   ...  AS I
UNDERSTAND THE LAW, UNLESS THERE IS A CLAUSE PROHIBITING OR INHIBITING
THE STATE COURT IT ALWAYS HAS CONCURRENT JURISDICTION WITH THE FEDERAL
COURTS IN SUCH A SUBJECT-MATTER AS THIS.  THE REPORT CITES A NUMBER OF
AUTHORITIES TO THIS EFFECT.  BUT THE SUPREME COURT OF CONNECTICUT
REFUSED TO ASSUME JURISDICTION OR TO TAKE JURISDICTION OF THE MATTER,
THOUGH THE WELL-ESTABLISHED LEGAL PRINCIPLE SEEMS TO BE ABSOLUTELY
DIFFERENT.  I DO NOT BELIEVE THIS AMENDMENT IS NECESSARY.  I BELIEVE IT
IS THOROUGHLY ESTABLISHED THAT THE FEDERAL COURTS AND THE STATE COURTS
HAVE CONCURRENT JURISDICTION.  BUT IN ORDER TO AVOID COURTS BEING
MISLED UPON THIS PROPOSITION THIS SPECIFIC PROVISION IS THOUGHT TO BE
NECESSARY IN THE LAW."  45 CONG. REC. 3995.  SEE ALSO HIS REMARKS AT 45
CONG. REC. 4034-35. 

THE COURT APPEARS TO DRAW COMFORT FROM THE PROVISION OF THE ACT
PROHIBITING REMOVAL OF A SUIT FROM A STATE COURT OF COMPETENT
JURISDICTION TO A FEDERAL COURT.  THE BILL AS PASSED BY THE HOUSE
CONTAINED NO SUCH PROVISION.  IT WAS OFFERED AS AN AMENDMENT ON THE
FLOOR OF THE SENATE BY SENATOR PAYNTER WHO, IN PROPOSING THE AMENDMENT,
MADE A FEW REMARKS THAT ARE UNENLIGHTENING FOR PRESENT PURPOSES.  THE
AMENDMENT WAS APPROVED BY THE SENATE WITHOUT FURTHER DISCUSSION.  45
CONG. REC. 4093.  WHEN THE BILL CAME BACK TO THE HOUSE, REPRESENTATIVE
CLAYTON, A MEMBER OF THE HOUSE JUDICIARY COMMITTEE, EXPLAINED THE
PURPOSE OF THIS AMENDMENT: 

"THE REAL AMENDMENT (MADE BY THE SENATE) AND THE ONE THAT I THINK IS
A DISTINCT IMPROVEMENT OF THE BILL, CERTAINLY MORE SO THAN THE OTHER
TWO, IS TO ADD  ... THESE WORDS:  'AND NO CASE ARISING UNDER THIS ACT
AND BROUGHT IN ANY STATE COURT OF COMPETENT JURISDICTION SHALL BE
REMOVED TO ANY COURT OF THE UNITED STATES.'  AND THE GENTLEMAN, BEING,
AS I AM, A STATES-RIGHTS DEMOCRAT, WILL CERTAINLY SAY THAT IS A DECIDED
IMPROVEMENT UPON THE BILL AS IT ORIGINALLY PASSED THE HOUSE. 
FURTHERMORE, I SAY THAT THIS AMENDMENT WILL TEND TO RELIEVE THE FEDERAL
COURTS OF SOME LITIGATION WHICH CAN BE AS WELL, IF NOT BETTER,
DETERMINED IN THE COURTS OF THE STATES."  45 CONG. REC. 4158. 

SUCH A RESTRICTION AGAINST REMOVAL OF LITIGATION NORMALLY ARISING IN
THE STATE COURTS IS NOT UNIQUE IN THE HISTORY OF LEGISLATION DEALING
WITH THE BUSINESS OF THE LOWER FEDERAL COURTS.  THIRTY YEARS EARLIER,
CONGRESS HAD BEGUN TO LIMIT THE RIGHT OF REMOVAL TO THE FEDERAL
COURTS.  SEE, E.G., ACT OF JULY 12, 1882, SEC. 4, 22 STAT. 162, 163;
ACT OF MARCH 3, 1887, 24 STAT. 552, CORRECTED BY ACT OF AUGUST 13,
1888, 25 STAT. 433.  THE REMOVAL PROHIBITION OF THE 1910 ACT MUST BE
REGARDED AS A PHASE OF THE MOVEMENT TO EASE THE PRESSURE UPON THE LOWER
FEDERAL COURTS BY CURTAILING ACCESS TO THEM RATHER THAN BY MULTIPLYING
UNDULY THE NUMBER OF FEDERAL JUDGES.  NOTHING WARRANTS THE INFERENCE
THAT THEREBY CONGRESS INTENDED A REVERSAL OF THE HISTORIC RELATION OF
STATE COURTS TO ONE ANOTHER. 

THAT NO EXPRESSION OF CONGRESS, NOR THE PURPOSES REVEALED BY IT
OUTSIDE OF THE LANGUAGE IT EMPLOYED, CALLS FOR A BREAK WITH THE PAST IN
GIVING EFFECT TO THE 1910 AMENDMENT WAS THE CONCLUSION REACHED BY THIS
COURT UPON THE FULLEST CONSIDERATION OF THE SIGNIFICANCE OF THE
PROVISION.  "THE AMENDMENT, AS APPEARS BY ITS LANGUAGE," IT WAS HELD IN
THE SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 56, "INSTEAD OF
GRANTING JURISDICTION TO THE STATE COURTS, PRESUPPOSES THAT THEY
ALREADY POSSESSED IT."  LATER, IN THE DOUGLAS CASE, THE COURT NOTED
THAT THE AMENDMENT "DOES NOT PURPORT TO REQUIRE STATE COURTS TO
ENTERTAIN SUITS ARISING UNDER IT, BUT ONLY TO EMPOWER THEM TO DO SO, SO
FAR AS THE AUTHORITY OF THE UNITED STATES IS CONCERNED."  279 U.S. AT
387.  AND AGAIN IN MCKNETT'S CASE, 292 U.S. AT 233, THE COURT
EMPHASIZED THAT "CONGRESS HAS NOT ATTEMPTED TO COMPEL STATES TO PROVIDE
COURTS FOR THE ENFORCEMENT OF THE FEDERAL EMPLOYERS' LIABILITY ACT." 
IN SHORT, EVERY TIME THE QUESTION HAS ARISEN THIS COURT HAS RECOGNIZED
THAT BY THE 1910 AMENDMENT CONGRESS DID NOT WRITE A NEW CHAPTER IN
JUDICIAL HISTORY, NOR DID IT MODIFY THE HISTORIC FUNCTION OF STATE
COURTS AS AGENCIES FOR THE ENFORCEMENT OF FEDERAL RIGHTS EMPLOYING THE
SAME INSTRUMENTS FOR ACHIEVING JUSTICE AS THEY EMPLOY WHEN ENFORCING
RIGHTS HAVING THEIR SOURCE IN STATE LAW. 

THE COURT NOW HOLDS THAT, WHERE CONSIDERATIONS OF EQUITY AND JUSTICE
ARE OTHERWISE COMPELLING, SEC. 6 HAS DEPRIVED THE STATE COURTS OF THE
POWER TO ENJOIN A PLAINTIFF FROM PURSUING A SUIT AGAINST A CARRIER IN
THE COURTS OF ANY STATE IN WHICH THE CARRIER DOES BUSINESS.  BUT A
SERIES OF DECISIONS FOLLOWING DAVIS V. FARMERS CO-OPERATIVE CO., 262
U.S. 312, ENFORCES A CONTRARY PROPOSITION.  IN THESE CASES, NOTABLY
DENVER & R.G.W.R. CO. V. TERTE, 284 U.S. 284, AND MICHIGAN CENTRAL R.
CO. V. MIX, 278 U.S. 492, SUITS AGAINST A CARRIER IN A STATE WHERE IT
DID BUSINESS WERE NEVERTHELESS FOUND TO CONSTITUTE AN UNJUSTIFIABLE
BURDEN ON COMMERCE AND THEREFORE COULD NOT BE MAINTAINED.  IF CONGRESS
HAD CONFERRED OBLIGATORY JURISDICTION UPON THE STATE COURTS, IT WOULD
HAVE BEEN ENTIRELY BEYOND THE PROVINCE OF THIS COURT TO HOLD, AS IT DID
IN THESE DECISIONS, THAT A SUIT IN A STATE COURT WHICH WAS GIVEN
"CONCURRENT JURISDICTION" BY THE 1910 AMENDMENT CONSTITUTED A BURDEN ON
COMMERCE.  TO SUGGEST THAT THE GRANT OF "CONCURRENT JURISDICTION"
REPEALED THE HISTORIC POWERS OF EQUITY SANCTIONED BY COLE V.
CUNNINGHAM, 133 U.S. 107, IS TO IMPLY THAT IN ALL THESE CASES THE COURT
DISREGARDED WHAT IS NOW FOUND TO BE THE RIGHT OF A PLAINTIFF TO RESORT
TO A STATE COURT, UNHAMPERED BY THE AUTHORITY OF THE STATE COURTS TO
INVOKE THEIR FAMILIAR EQUITABLE POWERS TO RESTRAIN OPPRESSIVE AND
VEXATIOUS SUITS IN OTHER STATE COURTS.  THIS IS TO SAY THAT IN ALL
THESE CASES OVER A PERIOD OF YEARS THIS COURT DISREGARDED THE
JURISDICTIONAL REQUIREMENTS OF THE FEDERAL EMPLOYERS' LIABILITY ACT. 
YET THE ACT WAS CONSTANTLY BEFORE THE COURT, AND, IT MAY NOT BE AMISS
TO RECALL, NO MEMBER OF THIS COURT, IN MODERN TIMES AT LEAST, WAS MORE
FAMILIAR WITH AND MORE MINDFUL OF JURISDICTIONAL REQUIREMENTS THAN MR.
JUSTICE BRANDEIS, WHO SPOKE FOR A UNANIMOUS COURT IN BOTH THE DAVIS AND
MIX CASES. 

THE COURT DOES NOT NOW OVERRULE THESE DECISIONS.  THEY STAND AS
UNCHALLENGED AUTHORITIES THAT, IN GIVING THE STATE COURTS CONCURRENT
JURISDICTION OF SUITS UNDER THE ACT, CONGRESS DID NOT THEREBY PRECLUDE
THE APPLICATION OF PRINCIPLES OF EQUITY AND JUSTICE TO SUCH SUITS. 
THESE DECISIONS SHOW CLEARLY THAT SEC. 6 DID NOT GIVE THE STATE COURTS
COMPULSIVE JURISDICTION; IT MERELY CONFERRED AUTHORITY TO BE
ADMINISTERED IN THE CONTEXT OF EXISTING LAW. 

THE POWER INVOKED BY TENNESSEE IN THIS CASE WAS A FAMILIAR HEAD OF
EQUITY JURISDICTION LONG BEFORE THE CONSTITUTION.  INJUNCTIONS BY THE
CHANCELLOR AGAINST SUITS IN OTHER COURTS GO BACK TO AT LEAST THE LATE
SIXTEENTH CENTURY.  SEE CLIFFE V. TURNOR, CARY 83(1579); CHOCK V. CHEA,
CARY 83(1579); TANFIELD V. DAVENPORT, TOT.  114(1638); TRINICK V.
BORDFIELD, TOT.  117(1638).  WHEN LORD CHANCELLOR CLARENDON IN 1677
REFUSED TO ENJOIN A FOREIGN ATTACHMENT, LOVE V. BAKER, CH. CAS. 67, THE
REPORTER NOTED THAT "ALL THE BAR WAS OF ANOTHER OPINION.  IT WAS SAID,
THE INJUNCTION DID NOT LIE FOR FOREIGN JURISDICTIONS, NOR OUT OF THE
KING'S DOMINIONS.  BUT TO THAT IT WAS ANSWERED, THE INJUNCTION WAS NOT
TO THE COURT, BUT TO THE PARTY."  THE OPINION OF THE BAR SOON BECAME
THE ACCEPTED LAW OF ENGLAND.  IN THE LEADING CASE OF LORD PORTARLINGTON
V. SOULBY, 3 MYL.  & K. 104, BROUGHAM, L.C., EXPRESSED THE HISTORIC
DOCTRINE OF EQUITY JURISDICTION.  REFERRING TO THE ATTITUDE OF THE BAR
TOWARDS LOVE V. BAKER, HE COMMENTED:  "A VERY SOUND ANSWER, AS IT
APPEARS TO ME; FOR THE SAME ARGUMENT MIGHT APPLY TO A COURT WITHIN THIS
COUNTRY, WHICH NO ORDER OF THIS COURT EVER AFFECTS TO BIND, OUR ORDERS
BEING ONLY POINTED AT THE PARTIES TO RESTRAIN THEM FROM PROCEEDING. 
ACCORDINGLY, THIS CASE OF LOVE V. BAKER HAS NOT BEEN RECOGNIZED OR
FOLLOWED IN LATER TIMES."  3 MYL.  & K. AT 107.  SEE WHARTON V. MAY, 5
VES.  JR. 27; KENNEDY V. EARL OF CASSILLIS, 2 SWANS.  313; HARRISON V.
GURNEY, 2 JAC.  & W. 563; BUSHBY V. MUNDAY, 5 MADD.  184; BEAUCHAMP V.
MARQUIS OF HUNTLEY, JAC.  546; EDEN ON INJUNCTIONS (1822 ED.)  PP. 3 ET
SEQ., 101-02. 

THIS DOCTRINE OF EQUITABLE POWER HAS BEEN UNIVERSALLY ACCEPTED BY
AMERICAN COURTS.  SEE, E.G., DEHON V. FOSTER, 4 ALLEN 545, 550; COLE V.
YOUNG, 24 KAN. 435, 438; BIGELOW V. OLD DOMINION CO., 74 N.J. EQ. 457,
473, 71 A. 153.  AND THE POWER HAS BEEN EXERCISED BY THE STATE COURTS
GENERALLY TO ENJOIN OPPRESSIVE SUITS BROUGHT UNDER THE ACT IN OTHER
STATE COURTS.  SEE REED'S ADMRX.  V. ILLINOIS CENTRAL R. CO., 182 KY.
455, 206 S.W. 794; CHICAGO, M. & ST. P. RY. CO. V. MCGINLEY, 175 WIS.
565, 185 N.W. 218; STATE EX REL. NEW YORK, C. & ST. L.R. CO. V.
NORTONI, 331 MO. 764, 55 S.W.2D 272; KERN V. CLEVELAND, C., C. & ST. L.
RY. CO., 204 IND. 595, 185 N.E. 446.  OF COURSE, SINCE A FEDERAL RIGHT
IS INVOLVED, NO STATE COURT CAN SCREEN DENIAL OF OR DISCRIMINATION
AGAINST A FEDERAL RIGHT, UNDER THE GUISE OF ENFORCING ITS LOCAL LAW. 
DAVIS V. WECHSLER, 263 U.S. 22; SOUTHERN RY. CO. V. PAINTER, 314 U.S.
155, 159-60. 

THE POWER OF EQUITY TO RESTRAIN THE PROSECUTION OF UNCONSCIONABLE
SUITS HAS BEEN PART OF THE VERY FABRIC OF THE STATE COURTS AS WE HAVE
KNOWN THEM IN OUR WHOLE HISTORY.  AND NOTHING IN THE FEDERAL EMPLOYERS'
LIABILITY ACT, ITS LANGUAGE, ITS HISTORY, OR ITS POLICY, WARRANTS A
DENIAL OF THIS POWER TO THE STATES. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS AND MR. JUSTICE BYRNES JOIN IN
THIS DISSENT. 
..END :






CARPENTERS UNION V. RITTER'S CAFE, 315 U.S. 722 


NO. 527.  ARGUED JANUARY 13, 1942.  - DECIDED MARCH 30, 1942.  - 149
S.W.2D 694, AFFIRMED. 


1.  THE FREEDOM OF SPEECH GUARANTEED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT IS NOT INFRINGED BY A DECREE OF A STATE COURT
ENJOINING, AS A VIOLATION OF THE STATE ANTI-TRUST LAW, THE PICKETING OF
A RESTAURANT BY UNION CARPENTERS AND PAINTERS HAVING NO GRIEVANCE
AGAINST ITS OWNER OTHER THAN THAT HE HAD CONTRACTED FOR THE
CONSTRUCTION OF A BUILDING NOT CONNECTED WITH THE RESTAURANT BUSINESS,
AND A MILE-AND-A-HALF AWAY, WITH A CONTRACTOR WHO EMPLOYED NON-UNION
LABOR.  P. 726. 

2.  THIS COURT IS NOT CONCERNED WITH THE WISDOM OF THE POLICY
UNDERLYING STATE LAWS, BUT WITH THEIR CONSTITUTIONAL VALIDITY.  P.
728. 

CARPENTERS & JOINERS UNION OF AMERICA, LOCAL NO. 213, ET AL. V.
RITTER'S CAFE ET AL. 

CERTIORARI TO THE COURT OF CIVIL APPEALS, FIRST SUPREME JUDICIAL
DISTRICT, OF TEXAS. 

CERTIORARI, 314 U.S. 595, TO REVIEW A DECREE AFFIRMING AN ORDER
ENJOINING PETITIONERS FROM CERTAIN PICKETING.  THE HIGHEST COURT OF THE
STATE REFUSED A WRIT OF ERROR. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE FACTS OF THIS CASE ARE SIMPLE.  RITTER, THE RESPONDENT, MADE AN
AGREEMENT WITH A CONTRACTOR NAMED PLASTER FOR THE CONSTRUCTION OF A
BUILDING AT 2810 BROADWAY, HOUSTON, TEXAS.  THE CONTRACT GAVE PLASTER
THE RIGHT TO MAKE HIS OWN ARRANGEMENTS REGARDING THE EMPLOYMENT OF
LABOR IN THE CONSTRUCTION OF THE BUILDING.  HE EMPLOYED NON-UNION
CARPENTERS AND PAINTERS.  THE RESPONDENT WAS ALSO THE OWNER OF RITTER'S
CAFE, A RESTAURANT AT 418 BROADWAY, A MILE AND A HALF AWAY.  SO FAR AS
THE RECORD DISCLOSES, THE NEW BUILDING WAS WHOLLY UNCONNECTED WITH THE
BUSINESS OF RITTER'S CAFE.  ALL OF THE RESTAURANT EMPLOYEES WERE
MEMBERS OF THE HOTEL AND RESTAURANT EMPLOYEES INTERNATIONAL ALLIANCE,
LOCAL 808.  AS TO THEIR RESTAURANT WORK, THERE WAS NO CONTROVERSY
BETWEEN RITTER AND HIS EMPLOYEES OR THEIR UNION.  NOR DID THE
CARPENTERS' AND PAINTERS' UNIONS, THE PETITIONERS HERE, HAVE ANY
QUARREL WITH RITTER OVER HIS OPERATION OF THE RESTAURANT.  NO
CONSTRUCTION WORK OF ANY KIND WAS PERFORMED AT THE RESTAURANT, AND NO
CARPENTERS OR PAINTERS WERE EMPLOYED THERE. 

BUT BECAUSE PLASTER EMPLOYED NON-UNION LABOR, MEMBERS OF THE
CARPENTERS' AND PAINTERS' UNIONS BEGAN TO PICKET RITTER'S CAFE
IMMEDIATELY AFTER THE CONSTRUCTION GOT UNDER WAY.  WALKING BACK AND
FORTH IN FRONT OF THE RESTAURANT, A PICKET CARRIED A PLACARD WHICH
READ:  "THIS PLACE IS UNFAIR TO CARPENTERS AND JOINERS UNION OF
AMERICA, LOCAL NO. 213, AND PAINTERS LOCAL NO. 130, AFFILIATED WITH
AMERICAN FEDERATION OF LABOR."  LATER ON, THE WORDING WAS CHANGED AS
FOLLOWS:  "THE OWNER OF THIS CAFE HAS AWARDED A CONTRACT TO ERECT A
BUILDING TO W.A. PLASTER WHO IS UNFAIR TO THE CARPENTERS UNION 213 AND
PAINTER UNION 130, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR." 
ACCORDING TO THE UNDISPUTED FINDING OF THE TEXAS COURTS, WHICH IS
CONTROLLING HERE, RITTER'S CAFE WAS PICKETED "FOR THE AVOWED PURPOSE OF
FORCING AND COMPELLING PLAINTIFF (RITTER) TO REQUIRE THE SAID
CONTRACTOR, PLASTER, TO USE AND EMPLOY ONLY MEMBERS OF THE DEFENDANT
UNIONS ON THE BUILDING UNDER CONSTRUCTION IN THE 2800 BLOCK ON
BROADWAY."  CONTEMPORANEOUSLY WITH THIS PICKETING, THE RESTAURANT
WORKERS' UNION, LOCAL NO. 808, CALLED RITTER'S EMPLOYEES OUT ON STRIKE
AND WITHDREW THE UNION CARD FROM HIS ESTABLISHMENT.  UNION TRUCK
DRIVERS REFUSED TO CROSS THE PICKET LINE TO DELIVER FOOD AND OTHER
SUPPLIES TO THE RESTAURANT.  THE EFFECT OF ALL THIS WAS "TO PREVENT
MEMBERS OF ALL TRADES-UNIONS FROM PATRONIZING PLAINTIFF'S CAFE AND TO
ERECT A BARRIER AROUND PLAINTIFF'S CAFE, ACROSS WHICH NO MEMBER OF
DEFENDANT-UNIONS OR AN AFFILIATE WILL GO."  A CURTAILMENT OF SIXTY PER
CENT OF RITTER'S BUSINESS RESULTED. 

HOLDING THE PETITIONERS' ACTIVITIES TO CONSTITUTE A VIOLATION OF THE
STATE ANTI-TRUST LAW, TEXAS PENAL CODE, ART. 1632 ET SEQ., THE TEXAS
COURT OF CIVIL APPEALS ENJOINED THEM FROM PICKETING RITTER'S CAFE.  THE
DECREE FORBADE NEITHER PICKETING ELSEWHERE (INCLUDING THE BUILDING
UNDER CONSTRUCTION BY PLASTER) NOR COMMUNICATION OF THE FACTS OF THE
DISPUTE BY ANY MEANS OTHER THAN THE PICKETING OF RITTER'S RESTAURANT. 
149 S.W.2D 694.  WE BROUGHT THE CASE HERE TO CONSIDER THE CLAIM THAT
THE DECREE OF THE COURT OF CIVIL APPEALS (THE SUPREME COURT OF TEXAS
HAVING REFUSED A WRIT OF ERROR) INFRINGED THE FREEDOM OF SPEECH
GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  314
U.S. 595. 

THE ECONOMIC CONTEST BETWEEN EMPLOYER AND EMPLOYEE HAS NEVER
CONCERNED MERELY THE IMMEDIATE DISPUTANTS.  THE CLASH OF SUCH
CONFLICTING INTERESTS INEVITABLY IMPLICATES THE WELL-BEING OF THE
COMMUNITY.  SOCIETY HAS THEREFORE BEEN COMPELLED TO THROW ITS WEIGHT
INTO THE CONTEST.  THE LAW HAS UNDERTAKEN TO BALANCE THE EFFORT OF THE
EMPLOYER TO CARRY ON HIS BUSINESS FREE FROM THE INTERFERENCE OF OTHERS
AGAINST THE EFFORT OF LABOR TO FURTHER ITS ECONOMIC SELF-INTEREST.  AND
EVERY INTERVENTION OF GOVERNMENT IN THIS STRUGGLE HAS IN SOME RESPECT
ABRIDGED THE FREEDOM OF ACTION OF ONE OR THE OTHER OR BOTH. 

THE TASK OF MEDIATING BETWEEN THESE COMPETING INTERESTS HAS, UNTIL
RECENTLY, BEEN LEFT LARGELY TO JUDICIAL LAWMAKING AND NOT TO
LEGISLATION.  "COURTS WERE REQUIRED, IN THE ABSENCE OF LEGISLATION, TO
DETERMINE WHAT THE PUBLIC WELFARE DEMANDED; - WHETHER IT WOULD NOT BE
BEST SUBSERVED BY LEAVING THE CONTESTANTS FREE TO RESORT TO ANY MEANS
NOT INVOLVING A BREACH OF THE PEACE OR INJURY TO TANGIBLE PROPERTY;
WHETHER IT WAS CONSISTENT WITH THE PUBLIC INTEREST THAT THE CONTESTANTS
SHOULD BE PERMITTED TO INVOKE THE AID OF OTHERS NOT DIRECTLY INTERESTED
IN THE MATTER IN CONTROVERSY; AND TO WHAT EXTENT INCIDENTAL INJURY TO
PERSONS NOT PARTIES TO THE CONTROVERSY SHOULD BE HELD JUSTIFIABLE." 
MR. JUSTICE BRANDEIS IN TRUAX V. CORRIGAN, 257 U.S. 312, 363.  THE
RIGHT OF THE STATE TO DETERMINE WHETHER THE COMMON INTEREST IS BEST
SERVED BY IMPOSING SOME RESTRICTIONS UPON THE USE OF WEAPONS FOR
INFLICTING ECONOMIC INJURY IN THE STRUGGLE OF CONFLICTING INDUSTRIAL
FORCES HAS NOT PREVIOUSLY BEEN DOUBTED.  SEE MR. JUSTICE HOLMES IN
AIKENS V. WISCONSIN, 195 U.S. 194, 205, AND MR. JUSTICE BRANDEIS IN
TRUAX V. CORRIGAN, SUPRA, AT 372, DORCHY V. KANSAS, 272 U.S. 306, 311,
AND SENN V. TILE LAYERS PROTECTIVE UNION, 301 U.S. 468, 481.  BUT THE
PETITIONERS NOW CLAIM THAT THERE IS TO BE FOUND IN THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT A CONSTITUTIONAL COMMAND THAT
PEACEFUL PICKETING MUST BE WHOLLY IMMUNE FROM REGULATION BY THE
COMMUNITY IN ORDER TO PROTECT THE GENERAL INTEREST, THAT THE STATES
MUST BE POWERLESS TO CONFINE THE USE OF THIS INDUSTRIAL WEAPON WITHIN
REASONABLE BOUNDS. 

THE CONSTITUTIONAL RIGHT TO COMMUNICATE PEACEABLY TO THE PUBLIC THE
FACTS OF A LEGITIMATE DISPUTE IS NOT LOST MERELY BECAUSE A LABOR
DISPUTE IS INVOLVED, THORNHILL V. ALABAMA, 310 U.S. 88, OR BECAUSE THE
COMMUNICATION TAKES THE FORM OF PICKETING, EVEN WHEN THE COMMUNICATION
DOES NOT CONCERN A DISPUTE BETWEEN AN EMPLOYER AND THOSE DIRECTLY
EMPLOYED BY HIM.  AMERICAN FEDERATION OF LABOR V. SWING, 312 U.S. 321. 
BUT THE CIRCUMSTANCE THAT A LABOR DISPUTE IS THE OCCASION OF EXERCISING
FREEDOM OF EXPRESSION DOES NOT GIVE THAT FREEDOM ANY GREATER
CONSTITUTIONAL SANCTION OR RENDER IT COMPLETELY INVIOLABLE.  WHERE, AS
HERE, CLAIMS ON BEHALF OF FREE SPEECH ARE MET WITH CLAIMS ON BEHALF OF
THE AUTHORITY OF THE STATE TO IMPOSE REASONABLE REGULATIONS FOR THE
PROTECTION OF THE COMMUNITY AS A WHOLE, THE DUTY OF THIS COURT IS
PLAIN.  WHENEVER STATE ACTION IS CHALLENGED AS A DENIAL OF "LIBERTY,"
THE QUESTION ALWAYS IS WHETHER THE STATE HAS VIOLATED "THE ESSENTIAL
ATTRIBUTES OF THAT LIBERTY."  MR. CHIEF JUSTICE HUGHES IN NEAR V.
MINNESOTA, 283 U.S. 697, 708.  WHILE THE RIGHT OF FREE SPEECH IS
EMBODIED IN THE LIBERTY SAFEGUARDED BY THE DUE PROCESS CLAUSE, THAT
CLAUSE POSTULATES THE AUTHORITY OF THE STATES TO TRANSLATE INTO LAW
LOCAL POLICIES "TO PROMOTE THE HEALTH, SAFETY, MORALS AND GENERAL
WELFARE OF ITS PEOPLE.  ...  THE LIMITS OF THIS SOVEREIGN POWER MUST
ALWAYS BE DETERMINED WITH APPROPRIATE REGARD TO THE PARTICULAR SUBJECT
OF ITS EXERCISE."  IBID., AT 707.  "THE BOUNDARY AT WHICH THE
CONFLICTING INTERESTS BALANCE CANNOT BE DETERMINED BY ANY GENERAL
FORMULA IN ADVANCE, BUT POINTS IN THE LINE, OR HELPING TO ESTABLISH IT,
ARE FIXED BY DECISIONS THAT THIS OR THAT CONCRETE CASE FALLS ON THE
NEARER OR FARTHER SIDE."  HUDSON WATER CO. V. MCCARTER, 209 U.S. 349,
355. 

IN THE CIRCUMSTANCES OF THE CASE BEFORE US, TEXAS HAS DECLARED THAT
ITS GENERAL WELFARE WOULD NOT BE SERVED IF, IN A CONTROVERSY BETWEEN A
CONTRACTOR AND BUILDING WORKERS' UNIONS, THE UNIONS WERE PERMITTED TO
BRING TO BEAR THE FULL WEIGHT OF FAMILIAR WEAPONS OF INDUSTRIAL COMBAT
AGAINST A RESTAURANT BUSINESS, WHICH, AS A BUSINESS, HAS NO NEXUS WITH
THE BUILDING DISPUTE BUT WHICH HAPPENS TO BE OWNED BY A PERSON WHO
CONTRACTS WITH THE BUILDER.  THE PRECISE QUESTION IS, THEREFORE,
WHETHER THE FOURTEENTH AMENDMENT PROHIBITS TEXAS FROM DRAWING THIS LINE
IN CONFINING THE AREA OF UNRESTRICTED INDUSTRIAL WARFARE. 

TEXAS HAS UNDERTAKEN TO LOCALIZE INDUSTRIAL CONFLICT BY PROHIBITING
THE EXERTION OF CONCERTED PRESSURE DIRECTED AT THE BUSINESS, WHOLLY
OUTSIDE THE ECONOMIC CONTEXT OF THE REAL DISPUTE, OF A PERSON WHOSE
RELATION TO THE DISPUTE ARISES FROM HIS BUSINESS DEALINGS WITH ONE OF
THE DISPUTANTS.  THE STATE HAS NOT ATTEMPTED TO OUTLAW WHATEVER
PSYCHOLOGICAL PRESSURE MAY BE INVOLVED IN THE MERE COMMUNICATION BY AN
INDIVIDUAL OF THE FACTS RELATING TO HIS DIFFERENCES WITH ANOTHER.  NOR
ARE WE CONFRONTED HERE WITH A LIMITATION UPON SPEECH IN CIRCUMSTANCES
WHERE THERE EXISTS AN "INTERDEPENDENCE OF ECONOMIC INTEREST OF ALL
ENGAGED IN THE SAME INDUSTRY," AMERICAN FEDERATION OF LABOR V. SWING,
312 U.S. 321, 326.  COMPARE JOURNEYMEN TAILORS UNION LOCAL NO. 195 V.
MILLER'S, INC., 312 U.S. 658, AND BAKERY & PASTRY DRIVERS & HELPERS
LOCAL NO. 802 V. WOHL, POST, P. 769.  THE LINE DRAWN BY TEXAS IN THIS
CASE IS NOT THE LINE DRAWN BY NEW YORK IN THE WOHL CASE.  THE DISPUTE
THERE RELATED TO THE CONDITIONS UNDER WHICH BAKERY PRODUCTS WERE SOLD
AND DELIVERED TO RETAILERS.  THE BUSINESS OF THE RETAILERS WAS
THEREFORE DIRECTLY INVOLVED IN THE DISPUTE.  IN PICKETING THE RETAIL
ESTABLISHMENTS, THE UNION MEMBERS WOULD ONLY BE FOLLOWING THE SUBJECT
MATTER OF THEIR DISPUTE.  HERE WE HAVE A DIFFERENT SITUATION.  THE
DISPUTE CONCERNS THE LABOR CONDITIONS SURROUNDING THE CONSTRUCTION OF A
BUILDING BY A CONTRACTOR.  TEXAS HAS DEEMED IT DESIRABLE TO INSULATE
FROM THE DISPUTE AN ESTABLISHMENT WHICH INDUSTRIALLY HAS NO CONNECTION
WITH THE DISPUTE.  TEXAS HAS NOT ATTEMPTED TO PROTECT OTHER BUSINESS
ENTERPRISES OF THE BUILDING CONTRACTOR, PLASTER, WHO IS THE
PETITIONERS' REAL ADVERSARY.  WE NEED NOT THEREFORE CONSIDER PROBLEMS
THAT WOULD ARISE IF TEXAS HAD UNDERTAKEN TO DRAW SUCH A LINE. 

IT IS TRUE THAT BY PEACEFUL PICKETING WORKINGMEN COMMUNICATE THEIR
GRIEVANCES.  AS A MEANS OF COMMUNICATING THE FACTS OF A LABOR DISPUTE,
PEACEFUL PICKETING MAY BE A PHASE OF THE CONSTITUTIONAL RIGHT OF FREE
UTTERANCE.  BUT RECOGNITION OF PEACEFUL PICKETING AS AN EXERCISE OF
FREE SPEECH DOES NOT IMPLY THAT THE STATES MUST BE WITHOUT POWER TO
CONFINE THE SPHERE OF COMMUNICATION TO THAT DIRECTLY RELATED TO THE
DISPUTE.  RESTRICTION OF PICKETING TO THE AREA OF THE INDUSTRY WITHIN
WHICH A LABOR DISPUTE ARISES LEAVES OPEN TO THE DISPUTANTS OTHER
TRADITIONAL MODES OF COMMUNICATION.  TO DENY TO THE STATES THE POWER TO
DRAW THIS LINE IS TO WRITE INTO THE CONSTITUTION THE NOTION THAT EVERY
INSTANCE OF PEACEFUL PICKETING - ANYWHERE AND UNDER ANY CIRCUMSTANCES -
IS NECESSARILY A PHASE OF THE CONTROVERSY WHICH PROVOKED THE
PICKETING.  SUCH A VIEW OF THE DUE PROCESS CLAUSE WOULD COMPEL THE
STATES TO ALLOW THE DISPUTANTS IN A PARTICULAR INDUSTRIAL EPISODE TO
CONSCRIPT NEUTRALS HAVING NO RELATION TO EITHER THE DISPUTE OR THE
INDUSTRY IN WHICH IT AROSE. 

IN FORBIDDING SUCH CONSCRIPTION OF NEUTRALS, IN THE CIRCUMSTANCES OF
THE CASE BEFORE US, TEXAS REPRESENTS THE PREVAILING, AND PROBABLY THE
UNANIMOUS, POLICY OF THE STATES.  FN1  WE HOLD THAT THE CONSTITUTION
DOES NOT FORBID TEXAS TO DRAW THE LINE WHICH HAS BEEN DRAWN HERE.  TO
HOLD OTHERWISE WOULD BE TO TRANSMUTE VITAL CONSTITUTIONAL LIBERTIES
INTO DOCTRINAIRE DOGMA.  WE MUST BE MINDFUL THAT "THE RIGHTS OF
EMPLOYERS AND EMPLOYEES TO CONDUCT THEIR ECONOMIC AFFAIRS AND TO
COMPETE WITH OTHERS FOR A SHARE IN THE PRODUCTS OF INDUSTRY ARE SUBJECT
TO MODIFICATION OR QUALIFICATION IN THE INTERESTS OF THE SOCIETY IN
WHICH THEY EXIST.  THIS IS BUT AN INSTANCE OF THE POWER OF THE STATE TO
SET THE LIMITS OF PERMISSIBLE CONTEST OPEN TO INDUSTRIAL COMBATANTS." 
THORNHILL V. ALABAMA, 310 U.S. 88, 103-04. 

IT IS NOT FOR US TO ASSESS THE WISDOM OF THE POLICY UNDERLYING THE
LAW OF TEXAS.  OUR DUTY IS AT AN END WHEN WE FIND THAT THE FOURTEENTH
AMENDMENT DOES NOT DENY HER THE POWER TO ENACT THAT POLICY INTO LAW. 
AFFIRMED. 

FN1  THE AUTHORITIES ARE COLLECTED IN TELLER, LABOR DISPUTES AND
COLLECTIVE BARGAINING (1940), SEC. 123; HELLERSTEIN, SECONDARY BOYCOTTS
IN LABOR DISPUTES, 47 YALE L.J. 341; FREY, CASES ON LABOR LAW (1941),
PP. 239-73; CF. GALENSON AND SPECTOR, THE NEW YORK LABOR-INJUNCTION
STATUTE AND THE COURTS, 42 COL. L. REV. 51, 68-71. 

MR. JUSTICE BLACK, DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE MURPHY CONCUR. 

THE PETITIONERS SOUGHT TO CONVEY TO THE PUBLIC CERTAIN INFORMATION. 
THE INJUNCTION HERE SUSTAINED IMPOSED TWO RESTRAINTS ON THEIR DOING SO:
(1) IT ENJOINED THEM FROM PICKETING THE RESPONDENT'S CAFE; (2) IT
ENJOINED THEM FROM CARRYING BANNERS IN FRONT OF THE RESPONDENT'S CAFE,
BANNERS WHICH CONTAINED INSCRIPTIONS TELLING THE PUBLIC THAT THE
RESPONDENT HAD AWARDED A BUILDING CONTRACT TO A MAN WHO WAS UNFAIR TO
ORGANIZED LABOR.    ONE MEMBER OF THE PETITIONER UNIONS AT A TIME
PEACEFULLY WALKED IN FRONT OF THE RESPONDENT'S CAFE, CARRYING SUCH A
BANNER.  IT IS NOT CONTENDED THAT THE INSCRIPTIONS WERE UNTRUTHFUL, NOR
THAT THE LANGUAGE USED WAS IMMODERATE.  THERE WAS NO VIOLENCE
THREATENED OR APPREHENDED.  PASSERS-BY WERE NOT MOLESTED.  IT IS CLEAR
FROM THE OPINION OF THE TEXAS COURT OF CIVIL APPEALS THAT THE
INJUNCTION AGAINST PICKETING WAS GRANTED NOT BECAUSE OF ANY LAW
DIRECTLY AIMED AT PICKETING - TEXAS HAS NO STATUTE AGAINST PICKETING AS
SUCH - NOR TO PREVENT VIOLENCE, DISORDER, BREACH OF THE PEACE, OR
CONGESTION OF THE STREETS.  THE IMMEDIATE PURPOSE OF THE INJUNCTION WAS
TO FRUSTRATE THE UNION'S OBJECTIVE OF CONVEYING INFORMATION TO THAT
PART OF THE PUBLIC WHICH CAME NEAR THE RESPONDENT'S PLACE OF BUSINESS,
AN OBJECTIVE WHICH THE COURT BELOW DECIDED WAS A VIOLATION OF TEXAS
ANTITRUST LAWS.  CONVEYING THIS TRUTHFUL INFORMATION IN THE MANNER
CHOSEN BY THE UNION WAS CALCULATED TO, AND DID, INJURE THE RESPONDENT'S
BUSINESS.  HIS BUSINESS WAS INJURED BECAUSE MANY OF THOSE WHOM THE
INFORMATION REACHED WERE SYMPATHETIC WITH THE UNION SIDE OF THE
CONTROVERSY AND DECLINED TO PATRONIZE THE RESPONDENT'S CAFE OR HAVE ANY
OTHER BUSINESS TRANSACTIONS WITH HIM.  DOES INJURY OF THIS KIND TO THE
RESPONDENT'S BUSINESS JUSTIFY THE TEXAS COURTS IN THUS RESTRICTING
FREEDOM OF EXPRESSION? 

I AM UNABLE TO AGREE THAT THE CONTROVERSY WHICH PROMPTED THE UNIONS
TO GIVE PUBLICITY TO THE FACTS WAS NO MORE THAN A PRIVATE QUARREL
BETWEEN THE UNION AND THE NON-UNION CONTRACTOR.  WHETHER MEMBERS OR NON
MEMBERS OF THE BUILDING TRADES UNIONS ARE EMPLOYED IS KNOWN TO DEPEND
TO A LARGE EXTENT UPON THE ATTITUDE OF BUILDING CONTRACTORS.  THEIR
ATTITUDE CAN BE GREATLY INFLUENCED BY THOSE WITH WHOM THEY DO
BUSINESS.  DISPUTES BETWEEN ONE OR TWO UNIONS AND ONE CONTRACTOR OVER
THE MERITS AND JUSTICE OF UNION AS OPPOSED TO NON-UNION SYSTEMS OF
EMPLOYMENT ARE BUT A PART OF THE NATIONWIDE CONTROVERSY OVER THE
SUBJECT.  I CAN SEE NO REASON WHY MEMBERS OF THE PUBLIC SHOULD BE
DEPRIVED OF ANY OPPORTUNITY TO GET INFORMATION WHICH MIGHT ENABLE THEM
TO USE THEIR INFLUENCE TO TIP THE SCALES IN FAVOR OF THE SIDE THEY
THINK IS RIGHT. 

IF THERE HAD BEEN ANY DOUBT BEFORE, I SHOULD HAVE THOUGHT THAT OUR
DECISION IN THORNHILL V. ALABAMA, 310 U.S. 88, SETTLED THE QUESTION. 
THERE WE SAID AT PAGES 102-104:  "IN THE CIRCUMSTANCES OF OUR TIMES THE
DISSEMINATION OF INFORMATION CONCERNING THE FACTS OF A LABOR DISPUTE
MUST BE REGARDED AS WITHIN THAT AREA OF FREE DISCUSSION THAT IS
GUARANTEED BY THE CONSTITUTION.  ...  FREE DISCUSSION CONCERNING THE
CONDITIONS IN INDUSTRY AND THE CAUSES OF LABOR DISPUTES APPEARS TO US
INDISPENSABLE TO THE EFFECTIVE AND INTELLIGENT USE OF THE PROCESSES OF
POPULAR GOVERNMENT TO SHAPE THE DESTINY OF MODERN INDUSTRIAL SOCIETY. 
THE ISSUES RAISED BY REGULATIONS, SUCH AS ARE CHALLENGED HERE,
INFRINGING UPON THE RIGHT OF EMPLOYEES EFFECTIVELY TO INFORM THE PUBLIC
OF THE FACTS OF A LABOR DISPUTE ARE PART OF THIS LARGER PROBLEM.  ...
IT MAY BE THAT EFFECTIVE EXERCISE OF THE MEANS OF ADVANCING PUBLIC
KNOWLEDGE MAY PERSUADE SOME OF THOSE REACHED TO REFRAIN FROM ENTERING
INTO ADVANTAGEOUS RELATIONS WITH THE BUSINESS ESTABLISHMENT WHICH IS
THE SCENE OF THE DISPUTE.  ...  BUT THE GROUP IN POWER AT ANY MOMENT
MAY NOT IMPOSE PENAL SANCTIONS ON PEACEFUL AND TRUTHFUL DISCUSSION OF
MATTERS OF PUBLIC INTEREST MERELY ON A SHOWING THAT OTHERS MAY THEREBY
BE PERSUADED TO TAKE ACTION INCONSISTENT WITH ITS INTERESTS." 

WHATEVER INJURY THE RESPONDENT SUFFERED HERE RESULTED FROM THE
PEACEFUL AND TRUTHFUL STATEMENTS MADE TO THE PUBLIC THAT HE HAD
EMPLOYED A NON-UNION CONTRACTOR TO ERECT A BUILDING.  THIS INFORMATION,
UNDER THE THORNHILL CASE, THE PETITIONERS WERE PRIVILEGED TO IMPART AND
THE PUBLIC WAS ENTITLED TO RECEIVE.  IT IS ONE THING FOR A STATE TO
REGULATE THE USE OF ITS STREETS AND HIGHWAYS SO AS TO KEEP THEM OPEN
AND AVAILABLE FOR MOVEMENT OF PEOPLE AND PROPERTY, SCHNEIDER V. STATE,
308 U.S. 147, 160; OR TO PASS GENERAL REGULATIONS AS TO THEIR USE IN
THE INTEREST OF PUBLIC SAFETY, PEACE, COMFORT, OR CONVENIENCE, CANTWELL
V. CONNECTICUT, 310 U.S. 296, 306-307; OR TO PROTECT ITS CITIZENS FROM
VIOLENCE AND BREACHES OF THE PEACE BY THOSE WHO ARE UPON THEM,
THORNHILL V. ALABAMA, SUPRA, 105.  IT IS QUITE ANOTHER THING, HOWEVER,
TO "ABRIDGE THE CONSTITUTIONAL LIBERTY OF ONE RIGHTFULLY UPON THE
STREET TO IMPART INFORMATION THROUGH SPEECH OR THE DISTRIBUTION OF
LITERATURE.  ...  "  SCHNEIDER V. STATE, SUPRA, 160.  THE COURT BELOW
DID NOT REST THE RESTRAINTS IMPOSED ON THESE PETITIONERS UPON THE
STATE'S EXERCISE OF ITS PERMISSIBLE POWERS TO REGULATE THE USE OF ITS
STREETS OR THE CONDUCT OF THOSE RIGHTFULLY UPON THEM.  INSTEAD, IT
BARRED THE PETITIONERS FROM USING THE STREETS TO CONVEY INFORMATION TO
THE PUBLIC, BECAUSE OF THE PARTICULAR TYPE OF INFORMATION THEY WISHED
TO CONVEY.  IN SO DOING, IT DIRECTLY RESTRICTED THE PETITIONERS' RIGHTS
TO EXPRESS THEMSELVES PUBLICLY CONCERNING AN ISSUE WHICH WE RECOGNIZED
IN THE THORNHILL CASE TO BE OF PUBLIC IMPORTANCE.  IT IMPOSED THE
RESTRICTION FOR THE REASON THAT THE PUBLIC'S RESPONSE TO SUCH
INFORMATION WOULD RESULT IN INJURY TO A PARTICULAR PERSON'S BUSINESS, A
REASON WHICH WE SAID IN THE THORNHILL CASE WAS INSUFFICIENT TO JUSTIFY
CURTAILMENT OF FREE EXPRESSION. 

THE INJUNCTION IS DEFENDED, HOWEVER, ON THE GROUND THAT THE
PETITIONERS HAVE BEEN PROHIBITED FROM PASSING INFORMATION TO THE PUBLIC
AT ONLY SOME, BUT NOT AT ALL, PLACES.  IT MAY BE THAT THE PETITIONERS
ARE LEFT FREE TO INFORM THE PUBLIC AT OTHER PLACES OR IN OTHER WAYS. 
POSSIBLY THEY MIGHT, AT GREATER EXPENSE, REACH THE PUBLIC OVER THE
RADIO OR THROUGH THE NEWSPAPERS, ALTHOUGH, IF THE THEORY OF THE COURT
BELOW BE CORRECT, IT WOULD SEEM THAT THEY COULD BE ENJOINED FROM USING
THESE MEANS OF COMMUNICATION, TOO, TO PERSUADE PEOPLE NOT TO PATRONIZE
THE RESPONDENT'S CAFE.  IN ANY EVENT, "ONE IS NOT TO HAVE THE EXERCISE
OF HIS LIBERTY OF EXPRESSION IN APPROPRIATE PLACES ABRIDGED ON THE PLEA
THAT IT MAY BE EXERCISED IN SOME OTHER PLACE."  SCHNEIDER V. STATE,
SUPRA, 163. 

ACCEPTING THE CONSTITUTIONAL PROHIBITION AGAINST ANY LAW "ABRIDGING
THE FREEDOM OF SPEECH OR OF THE PRESS" - A PROHIBITION MADE APPLICABLE
TO THE STATES BY THE FOURTEENTH AMENDMENT - "AS A COMMAND OF THE
BROADEST SCOPE THAT EXPLICIT LANGUAGE, READ IN THE CONTEXT OF A
LIBERTYLOVING SOCIETY, WILL ALLOW," BRIDGES V. CALIFORNIA, 314 U.S.
252, 263, I THINK THE JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE REED, DISSENTING: 

THE TEXAS COURT ENJOINED PETITIONERS, A LABOR UNION OF CARPENTERS AND
JOINERS, ANOTHER UNION OF PAINTERS, AND ALL OF THEIR MEMBERS FROM
PICKETING THE RESTAURANT OF THE RESPONDENT, E. R. RITTER, PLAINTIFF
BELOW, DOING BUSINESS UNDER THE TRADE NAME OF RITTER'S CAFE, AT 418
BROADWAY, IN HOUSTON, "AND FROM CARRYING BANNERS PEACEFULLY AND IN ANY
OTHER MANNER UPON THE SIDEWALKS IN FRONT" OF THE RESTAURANT.  THERE HAD
BEEN NO VIOLENCE.  ONLY TWO PICKETS, ONE FROM EACH UNION, WALKED BACK
AND FORTH, CARRYING PLACARDS WHICH BEFORE THE INJUNCTION ISSUED WERE
MODIFIED TO READ, "THE OWNER OF THIS CAFE HAS AWARDED A CONTRACT TO
ERECT A BUILDING TO W. A. PLASTER WHO IS UNFAIR TO THE CARPENTERS UNION
213 AND PAINTER UNION 130, AFFILIATED WITH THE AMERICAN FEDERATION OF
LABOR." 

PLASTER, A BUILDING CONTRACTOR, WAS PUTTING UP A STRUCTURE FOR
RESPONDENT, RITTER, IN THE 2800 BLOCK OF BROADWAY, UNDER A CONTRACT
WHICH DID NOT REQUIRE PLASTER TO EMPLOY UNION LABOR.  THE RECORD DOES
NOT SHOW WHETHER OR NOT THIS NEW BUILDING IS TO BE USED IN THE
RESTAURANT BUSINESS.  HE WAS EMPLOYING NON-UNION WORKERS.  THE
RESTAURANT, HOWEVER, WAS UNIONIZED, ITS EMPLOYEES BEING MEMBERS OF
HOTEL AND RESTAURANT EMPLOYEES' LOCAL 808.  THEY QUIT ON THE DAY THE
PICKETING BEGAN, UNION DRIVERS REFUSED TO DELIVER SUPPLIES, AND THE
BUSINESS SLUMPED SIXTY PER CENT.  THE COURT FOUND PETITIONERS' CONDUCT
AN INVASION OF RESPONDENTS' RIGHT TO CONDUCT A LEGITIMATE BUSINESS AND
AN ATTEMPT TO INTERFERE ILLEGALLY WITH A CONTRACT WITH THIRD PARTIES. 

THE INJUNCTION WAS ISSUED BY THE TEXAS COURT BECAUSE SUCH INVASION OR
ATTEMPT AT INVASION OF THE RIGHTS OF A BUSINESS MAN WAS HELD "TO CREATE
RESTRICTIONS IN THE FREE PURSUIT" OF BUSINESS, CONTRARY TO THE TEXAS
ANTI-TRUST LAWS.  TEX. REV. CIV. STAT. (VERNON, 1936) ARTS. 7426, 7428;
TEX. PENAL CODE (VERNON, 1936) ARTS. 1632, 1634, 1635.  149 S.W.2D
694.  THE PETITIONERS' CHALLENGE TO THE VALIDITY OF THE INJUNCTION IS
BASED ON THE CONSTITUTIONAL RIGHT OF FREE SPEECH, GUARANTEED THEM BY
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. 
SCHNEIDER V. STATE, 308 U.S. 147, 160. 

THIS CHALLENGE INVOLVES TWO PARTICULARLY DELICATE RELATIONSHIPS. 
THESE ARE THAT BETWEEN THE FEDERAL AND STATE GOVERNMENTS, AND THAT
BETWEEN A STATE AND LABOR UNIONS WITHIN ITS BORDERS.  SO FAR AS THE
INJUNCTION DEPENDS UPON THE ACTION OF THE TEXAS COURT IN CONSTRUING ITS
ANTI-TRUST STATUTES TO FORBID SUCH INTERFERENCE WITH THE RESTAURANT
BUSINESS, THE ORDER IS UNASSAILABLE HERE.  BUT IF SUCH AN
INTERPRETATION DENIES TO TEXANS CLAIMED RIGHTS GUARANTEED TO THEM BY
THE FEDERAL CONSTITUTION, THE STATE AUTHORITY MUST ACCOMMODATE ITS
ORDERS TO PRESERVE THAT RIGHT.  CF. INTERNATIONAL HARVESTER CO. V.
KENTUCKY, 234 U.S. 216; LINDSEY V. WASHINGTON, 301 U.S. 397, 400;
MINNESOTA V. PROBATE COURT, 309 U.S. 270, 273. 

RECENT CASES IN THIS COURT HAVE SOUGHT TO MAKE MORE DEFINITE THE
EXTENT AND LIMITATIONS OF THE RIGHTS OF FREE SPEECH IN LABOR DISPUTES. 
FOR SOME TIME, THERE HAS BEEN GENERAL ACCEPTANCE OF THE FUNDAMENTAL
RIGHT TO PUBLICIZE "THE FACTS OF A LABOR DISPUTE IN A PEACEFUL WAY
THROUGH APPROPRIATE MEANS."  ONE OF THE RECOGNIZED MEANS IS BY ORDERLY
PICKETING WITH BANNERS OR PLACARDS.  THORNHILL V. ALABAMA, 310 U.S. 88,
104.  IN CARLSON V. CALIFORNIA, 310 U.S. 106, 113, WE SAID:  "FOR THE
REASONS SET FORTH IN OUR OPINION IN THORNHILL V. ALABAMA, SUPRA,
PUBLICIZING THE FACTS OF A LABOR DISPUTE IN A PEACEFUL WAY THROUGH
APPROPRIATE MEANS, WHETHER BY PAMPHLET, BY WORD OF MOUTH OR BY BANNER,
MUST NOW BE REGARDED AS WITHIN THAT LIBERTY OF COMMUNICATION WHICH IS
SECURED TO EVERY PERSON BY THE FOURTEENTH AMENDMENT AGAINST ABRIDGMENT
BY A STATE."  THE DESIRE OF BOTH SIDES IN LABOR CONTROVERSIES TO GAIN
ADVANTAGES FOR THEMSELVES AND LIMIT SIMILAR OPPORTUNITIES FOR THEIR
OPPONENTS HAS LED EACH TO SEEK TO EXPAND OR CONTRACT THE
CONSTITUTIONALLY PROTECTED AREA FOR PICKETING OPERATIONS AS SUITS THEIR
RESPECTIVE PURPOSES.  RECOGNITION OF THE BASIC RIGHT TO PICKET MADE THE
LOCATION OF LINES BEYOND WHICH PICKETING COULD NOT BE EMPLOYED AN
IMPORTANT OBJECTIVE OF THOSE WHO SUFFER FROM ITS USE. 

IN THE CARLSON AND THORNHILL CASES, LEGISLATION FORBIDDING PICKETING
FOR THE PURPOSE OF INTERFERING WITH THE BUSINESS OF ANOTHER WAS
INVALIDATED BECAUSE IT WAS AN UNCONSTITUTIONAL PROHIBITION OF THE
WORKER'S RIGHT TO PUBLICIZE HIS SITUATION.  IT WAS NOT THOUGHT OF
SUFFICIENT IMPORTANCE IN EITHER CASE TO MENTION IN THE OPINION WHETHER
THE PICKET WAS AN INTERESTED DISPUTANT WITH THOSE PICKETED OR AN UTTER
STRANGER TO THE CONTROVERSY AND THE INDUSTRY.  IN THOSE CAREFULLY
PHRASED DECISIONS THE POSSIBILITY OF STATE CONTROL OF SOCIALLY MENACING
EVILS, FLOWING FROM INDUSTRIAL DISPUTES, WAS RECOGNIZED, BUT THOSE
GENERAL EVILS WERE NOT OF THE KIND WHICH WERE CONSIDERED TO WARRANT
INTERFERENCE WITH FREE SPEECH BY PEACEFUL PICKETING.  FN1  WE SAID: 

"IT IS TRUE THAT THE RIGHTS OF EMPLOYERS AND EMPLOYEES TO CONDUCT
THEIR ECONOMIC AFFAIRS AND TO COMPETE WITH OTHERS FOR A SHARE IN THE
PRODUCTS OF INDUSTRY ARE SUBJECT TO MODIFICATION OR QUALIFICATION IN
THE INTERESTS OF THE SOCIETY IN WHICH THEY EXIST.  THIS IS BUT AN
INSTANCE OF THE POWER OF THE STATE TO SET THE LIMITS OF PERMISSIBLE
CONTEST OPEN TO INDUSTRIAL COMBATANTS.  SEE MR. JUSTICE BRANDEIS IN 254
U.S. AT 488.  IT DOES NOT FOLLOW THAT THE STATE IN DEALING WITH THE
EVILS ARISING FROM INDUSTRIAL DISPUTES MAY IMPAIR THE EFFECTIVE
EXERCISE OF THE RIGHT TO DISCUSS FREELY INDUSTRIAL RELATIONS WHICH ARE
MATTERS OF PUBLIC CONCERN.  A CONTRARY CONCLUSION COULD BE USED TO
SUPPORT ABRIDGMENT OF FREEDOM OF SPEECH AND OF THE PRESS CONCERNING
ALMOST EVERY MATTER OF IMPORTANCE TO SOCIETY."  FN2 

AN INSTANCE OF STATE CONTROL OVER PEACEFUL PICKETING SOON APPEARED. 
IN DRIVERS UNION V. MEADOWMOOR CO., 312 U.S. 287, THIS COURT, THOUGH
NOT WITHOUT DISSENT, UPHELD ILLINOIS' RULING THAT, WHERE "ACTS OF
PICKETING IN THEMSELVES PEACEFUL" ARE ENMESHED IN VIOLENCE, IMMEDIATE
FUTURE PEACEFUL PICKETING MAY BE ENJOINED.  THIS DECISION COMPELLED A
LESS EXTREME RESULT IN HOTEL & RESTAURANT EMPLOYEES' ALLIANCE V.
WISCONSIN EMPLOYMENT RELATIONS BOARD, ANTE, P. 437.  IN THE LATTER
CASE, THE ORDER APPROVED "FORBIDS ONLY VIOLENCE" AND "PERMITS PEACEFUL
PICKETING."  NOTHING MORE THAN THE VALIDITY OF PROHIBITIONS AGAINST
VIOLENCE WAS DECIDED AS TO THE CONSTITUTIONALITY OF THE WISCONSIN
EMPLOYMENT PEACE ACT. 

ON THE SAME DAY THAT MEADOWMOOR WAS HANDED DOWN, A.F. OF L. V. SWING,
312 U.S. 321, WAS DECIDED.  IN SWING'S CASE A UNION OF BEAUTY SHOP
WORKERS PICKETED A BEAUTY PARLOR.  THEY WERE NOT AND HAD NOT BEEN
EMPLOYEES OF THE ESTABLISHMENT.  WE STATED THE ISSUE THUS: 

"MORE THOROUGH STUDY OF THE RECORD AND FULL ARGUMENT HAVE REDUCED THE
ISSUE TO THIS:  IS THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF
DISCUSSION INFRINGED BY THE COMMON LAW POLICY OF A STATE FORBIDDING
RESORT TO PEACEFUL PERSUASION THROUGH PICKETING MERELY BECAUSE THERE IS
NO IMMEDIATE EMPLOYER-EMPLOYEE DISPUTE?"  FN3 

THERE WAS NOTHING IN THE OPINION TO INTIMATE THAT THE ANSWER WOULD
HAVE VARIED, IF THE UNION HAD BEEN A LOCAL OF THE TEAMSTERS OR
PAINTERS.  THE INJUNCTION GRANTED BY ILLINOIS WAS SET ASIDE WITH THESE
WORDS: 

"SUCH A BAN OF FREE COMMUNICATION IS INCONSISTENT WITH THE GUARANTEE
OF FREEDOM OF SPEECH.  THAT A STATE HAS AMPLE POWER TO REGULATE THE
LOCAL PROBLEMS THROWN UP BY MODERN INDUSTRY AND TO PRESERVE THE PEACE
IS AXIOMATIC.  BUT NOT EVEN THESE ESSENTIAL POWERS ARE UNFETTERED BY
THE REQUIREMENTS OF THE BILL OF RIGHTS.  THE SCOPE OF THE FOURTEENTH
AMENDMENT IS NOT CONFINED BY THE NOTION OF A PARTICULAR STATE REGARDING
THE WISE LIMITS OF AN INJUNCTION IN AN INDUSTRIAL DISPUTE, WHETHER
THOSE LIMITS BE DEFINED BY STATUTE OR BY THE JUDICIAL ORGAN OF THE
STATE.  A STATE CANNOT EXCLUDE WORKINGMEN FROM PEACEFULLY EXERCISING
THE RIGHT OF FREE COMMUNICATION BY DRAWING THE CIRCLE OF ECONOMIC
COMPETITION BETWEEN EMPLOYERS AND WORKERS SO SMALL AS TO CONTAIN ONLY
AN EMPLOYER AND THOSE DIRECTLY EMPLOYED BY HIM.  THE INTERDEPENDENCE OF
ECONOMIC INTEREST OF ALL ENGAGED IN THE SAME INDUSTRY HAS BECOME A
COMMONPLACE.  AMERICAN STEEL FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S.
184, 209.  THE RIGHT OF FREE COMMUNICATION CANNOT THEREFORE BE
MUTILATED BY DENYING IT TO WORKERS, IN A DISPUTE WITH AN EMPLOYER, EVEN
THOUGH THEY ARE NOT IN HIS EMPLOY.  COMMUNICATION BY SUCH EMPLOYEES OF
THE FACTS OF A DISPUTE, DEEMED BY THEM TO BE RELEVANT TO THEIR
INTERESTS, CAN NO MORE BE BARRED BECAUSE OF CONCERN FOR THE ECONOMIC
INTERESTS AGAINST WHICH THEY ARE SEEKING TO ENLIST PUBLIC OPINION THAN
COULD THE UTTERANCE PROTECTED IN THORNHILL'S CASE.  'MEMBERS OF A UNION
MIGHT, WITHOUT SPECIAL STATUTORY AUTHORIZATION BY A STATE, MAKE KNOWN
THE FACTS OF A LABOR DISPUTE, FOR FREEDOM OF SPEECH IS GUARANTEED BY
THE FEDERAL CONSTITUTION.'  SENN V. TILE LAYERS UNION, 301 U.S. 468,
478."  FN4 

TODAY THIS COURT DECIDES BAKERY & PASTRY DRIVERS & HELPERS LOCAL 802
V. WOHL, POST, P. 769.  IN THIS CASE THE UNION PICKETED MANUFACTURING
BAKERS WHO SOLD TO, AND THREATENED TO PICKET GROCERS AND RETAIL BAKERS
WHO BOUGHT FROM, PEDDLERS.  THE PEDDLERS PURCHASED BAKERY GOODS AND
SOLD THEM TO THE TRADE.  THE LABOR CONTROVERSY WAS THE EFFORT OF THE
UNIONS TO COMPEL THE PEDDLERS TO HIRE A UNION DRIVER ONE DAY A WEEK. 
THE STATE FORBADE THE PICKETING OF THE MANUFACTURERS AND OF THE
RETAILERS, REGARDLESS OF WHETHER THE PICKETING PLACARDS WERE DIRECTED
AT THE PRODUCT OR THE GENERAL BUSINESS OF THE RETAILERS.  FN5  ALTHOUGH
THERE IS NO POSSIBLE LABOR RELATION BETWEEN THE PEDDLERS AND THEIR
CUSTOMERS, OR BETWEEN THE GROCERS AND RETAIL BAKERS, AND THE UNION, WE
DECLINE TO PERMIT NEW YORK TO TAKE STEPS TO PROTECT THE PLACES OF
BUSINESS OF THOSE WHO DEALT WITH THE PEDDLERS AGAINST PICKETING.  IT
SEEMS OBVIOUS THAT THE SELLING OF BAKED PRODUCTS, DISTRIBUTED BY THE
PEDDLERS, IS A MINOR PART OF THE GROCERY BUSINESS.  RECENT CASES
ILLUSTRATE THE PRESENT TENDENCY OF STATE COURTS TO PERMIT WORKERS
OUTSIDE THE INDUSTRY PICKETED TO PUBLICIZE THEIR LABOR DISPUTES WITH
OTHERS.  FN6  TO PERMIT THE WOHL INJUNCTION, WITHOUT EVIDENCE OF
SPECIAL EMBARRASSMENT TO PEACE AND ORDER, WOULD, WE HOLD, GO BEYOND
PERMISSIBLE LIMITATIONS ON FREE SPEECH. 

WE ARE OF THE VIEW THAT THE RIGHT OF FREE SPEECH UPHELD IN THESE
DECISIONS REQUIRES TEXAS TO PERMIT THE PUBLICIZING OF THE
DISSATISFACTION OVER MR. RITTER'S CONTRACT FOR HIS NEW BUILDING.  UNTIL
TODAY, ORDERLY, REGULATED PICKETING HAS BEEN WITHIN THE PROTECTION OF
THE FOURTEENTH AMENDMENT.  SUCH PICKETING WAS OBVIOUSLY DISADVANTAGEOUS
TO THE BUSINESS AFFECTED.  IN BALANCING SOCIAL ADVANTAGES IT HAS BEEN
FELT THAT THE PRESERVATION OF FREE SPEECH IN LABOR DISPUTES WAS MORE
IMPORTANT THAN THE FREEDOM OF ENTERPRISE FROM THE BURDENS OF THE PICKET
LINE.  IT WAS A LIMITATION ON STATE POWER TO DEAL AS IT PLEASED WITH
LABOR DISPUTES; A LIMITATION CONSENTED TO BY THE STATE WHEN IT BECAME A
PART OF THE NATION, AND ONE OF PRECISELY THE SAME QUALITY AS THOSE
ENFORCED IN CARLSON, THORNHILL AND SWING. 

WE ARE NOT HERE FORCED, AS THE COURT ASSUMES, TO SUPPORT A
CONSTITUTIONAL INTERPRETATION THAT PEACEFUL PICKETING "MUST BE WHOLLY
IMMUNE FROM REGULATION BY THE COMMUNITY IN ORDER TO PROTECT THE GENERAL
INTEREST."  WE DO NOT DOUBT THE RIGHT OF THE STATE TO IMPOSE NOT ONLY
SOME BUT MANY RESTRICTIONS UPON PEACEFUL PICKETING.  REASONABLE
NUMBERS, QUIETNESS, TRUTHFUL PLACARDS, OPEN INGRESS AND EGRESS,
SUITABLE HOURS OR OTHER PROPER LIMITATIONS, NOT DESTRUCTIVE OF THE
RIGHT TO TELL OF LABOR DIFFICULTIES, MAY BE REQUIRED.  THE COURT LIMITS
ITS HOLDING TO THE PECULIAR CIRCUMSTANCES OF THIS CASE.  ALL DECISIONS
NECESSARILY ARE SO LIMITED, BUT FROM THE DECISIONS RULES ARE DRAWN.  BU
THIS DECISION A STATE RULE IS UPHELD WHICH FORBIDS PEACEFUL PICKETING
OF BUSINESSES BY STRANGERS TO THE BUSINESS AND THE INDUSTRY OF WHICH IT
IS A PART.  THE LEGAL KERNEL OF THE COURT'S PRESENT DECISION IS THAT
THE "SPHERE" OF FREE SPEECH IS CONFINED TO THE "AREA OF THE INDUSTRY
WITHIN WHICH A LABOR DISPUTE ARISES."  THIS RULE IS APPLIED, IN THIS
CASE, EVEN THOUGH THE PICKETERS ARE PUBLICIZING A LABOR DISPUTE ARISING
FROM A CONTRACT TO WHICH THE SOLE OWNER OF THE BUSINESS PICKETED IS A
PARTY.  EVEN IF THE CONSTRUCTION CONTRACT COVERED AN ATTACHED ADDITION
TO THE RESTAURANT, THE COURT'S OPINION WOULD NOT PERMIT PICKETING
DIRECTED AGAINST THE RESTAURANT.  TO CONSTRUE THIS TEXAS DECISION AS
WITHIN STATE POWERS AND THE WOHL DECISION AS OUTSIDE THEIR BOUNDARIES,
PLAINLY DISCLOSES THE INADEQUACY OF THE TEST PRESUMABLY EMPLOYED, THAT
IS, THE SUPPOSED LACK OF ECONOMIC "INTERDEPENDENCE" BETWEEN THE
PICKETERS AND THE PICKETED. 

THE PHILOSOPHY BEHIND THE CONCLUSION OF THE COURT IN THIS CASE GIVES
TO A STATE THE RIGHT TO BAR FROM PICKET LINES WORKERS WHO ARE NOT A
PART OF THE INDUSTRY PICKETED.  WE ARE NOT TOLD WHETHER THE TEST OF
ELIGIBILITY TO PICKET IS TO BE APPLIED BY CRAFTS OR ENTERPRISES, OR HOW
WE ARE TO DETERMINE ECONOMIC INTERDEPENDENCE OR THE BOUNDARIES OF
PARTICULAR INDUSTRIES.  SUCH DIFFERENTIATIONS ARE YET TO BE
CONSIDERED.  THE DECISION WITHDRAWS FEDERAL CONSTITUTIONAL PROTECTION
FROM THE FREEDOM OF WORKERS OUTSIDE AN INDUSTRY TO STATE THEIR SIDE OF
A LABOR CONTROVERSY BY PICKETING.  SO LONG AS CIVIL GOVERNMENT IS ABLE
TO FUNCTION NORMALLY FOR THE PROTECTION OF ITS CITIZENS, SUCH A
LIMITATION UPON FREE SPEECH IS UNWARRANTED. 

FN1  EVIDENTLY THE CONCEPTION WAS THAT OF "IMMINENT AND AGGRAVATED
DANGER," A.F. OF L. V. SWING, 312 U.S. 321, 325. 

FN2  310 U.S. 88, 103-104. 

FN3  312 U.S. 321, 323. 

FN4  312 U.S. 321, 325-326. 

FN5  "IT IS HEREBY ORDERED,  ...  THAT THE DEFENDANTS,  ...  ARE
PERPETUALLY RESTRAINED AND ENJOINED: 

(A)  FROM PICKETING THE PLACES OF BUSINESS OF MANUFACTURING BAKERS
WHO SELL TO THE PLAINTIFFS ...  BECAUSE OF THE FACT THAT SAID
MANUFACTURING BAKERS SELL TO THESE PLAINTIFFS; AND 

(B)  FROM PICKETING THE PLACES OF BUSINESS OF CUSTOMERS OF THESE
PLAINTIFFS BECAUSE SUCH CUSTOMERS PURCHASE BAKED PRODUCTS FROM THESE
PLAINTIFFS; ...  " 

FN6  PEOPLE V. HARRIS, 104 COLO. 386, 91 P.2D 989(MAY, 1939); BYCK
BROS. & CO. V. MARTIN, 4 C.C.H. LABOR CASES $* 60,430(KY. CIR. CT.,
MARCH, 1941); ELLINGSEN V. MILK WAGON DRIVERS' UNION, 377 ILL. 76, 35
N.E.2D 349(JUNE, 1941); PEOPLE V. MULLER, 286 N.Y. 281, 36 N.E.2D
206(JULY, 1941); MAYWOOD FARMS CO. V. MILK WAGON DRIVERS' UNION, 313
ILL. APP. 24, 38 N.E.2D 972(JANUARY, 1942); MASON & DIXON LINES V.
ODOM, 18 S.E.2D 841(GA., FEBRUARY, 1942). 
..END :

















ALLEN-BRADLEY LOCAL V. BOARD, 315 U.S. 740 


NO. 252.  ARGUED MARCH 2, 1942.  - DECIDED MARCH 30, 1942.  - 237 WIS.
164, 295 N.W. 791, AFFIRMED. 


1.  PURSUANT TO THE WISCONSIN EMPLOYMENT PEACE ACT, THE WISCONSIN
EMPLOYMENT RELATIONS BOARD, UPON FINDINGS OF FACT AND CONCLUSIONS OF
LAW IN A DISPUTE BETWEEN AN EMPLOYER AND A LABOR UNION, ORDERED THE
UNION, ITS OFFICERS, AGENTS AND MEMBERS TO CEASE AND DESIST FROM MASS
PICKETING OF THE EMPLOYER'S FACTORY, THREATENING PERSONAL INJURY OR
PROPERTY DAMAGE TO EMPLOYEES DESIRING TO WORK, OBSTRUCTING ENTRANCE TO
AND EGRESS FROM THE EMPLOYER'S FACTORY, OBSTRUCTING THE STREETS AND
PUBLIC ROADS ABOUT THE FACTORY, AND PICKETING THE HOMES OF EMPLOYEES. 
HELD, THAT THE ORDER WAS NOT UNCONSTITUTIONAL AS CONFLICTING WITH THE
NATIONAL LABOR RELATIONS ACT.  PP. 745-748. 

2.  AS CONSTRUED BY THE STATE SUPREME COURT, WHICH CONSTRUCTION IS
CONCLUSIVE HERE, THE WISCONSIN ACT AFFECTS THE RIGHTS OF PARTIES TO
PROCEEDINGS PENDING BEFORE THE STATE BOARD ONLY IN THE MANNER AND TO
THE EXTENT PRESCRIBED BY THE BOARD'S ORDER.  P. 747. 

3.  AN INTENTION OF CONGRESS TO EXCLUDE STATES FROM EXERTING THEIR
POLICE POWER MUST BE CLEARLY MANIFESTED.  P. 749. 

4.  HINES V. DAVIDOWITZ, 312 U.S. 52, DISTINGUISHED.  P. 749. 

ALLEN-BRADLEY LOCAL NO. 1111, UNITED ELECTRICAL, RADIO & MACHINE
WORKERS OF AMERICA, ET AL. V. WISCONSIN EMPLOYMENT RELATIONS BOARD ET
AL. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT SUSTAINING AN ORDER OF THE
WISCONSIN EMPLOYMENT RELATIONS BOARD. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION PRESENTED BY THIS CASE IS WHETHER AN ORDER OF THE
WISCONSIN EMPLOYMENT RELATIONS BOARD, ENTERED UNDER THE WISCONSIN
EMPLOYMENT PEACE ACT (L. 1939, CH. 57; WIS. STAT. (1939) CH. 111, PP.
1610-18), IS UNCONSTITUTIONAL AND VOID AS BEING REPUGNANT TO THE
PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT.  49 STAT. 449; 29
U.S.C. SEC. 151 ET SEQ. 

SEC. 111.06(2) OF THE STATE ACT PROVIDES IN PART: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYE INDIVIDUALLY OR
IN CONCERT WITH OTHERS: 

"(A)  TO COERCE OR INTIMIDATE AN EMPLOYE IN THE ENJOYMENT OF HIS
LEGAL RIGHTS, INCLUDING THOSE GUARANTEED IN SECTION 111.04,  FN1 OR TO
INTIMIDATE HIS FAMILY, PICKET HIS DOMICILE, OR INJURE THE PERSON OR
PROPERTY OF SUCH EMPLOYE OR HIS FAMILY. 

     .         .         .         .         . 

"(F)  TO HINDER OR PREVENT, BY MASS PICKETING, THREATS, INTIMIDATION,
FORCE OR COERCION OF ANY KIND THE PURSUIT OF ANY LAWFUL WORK OR
EMPLOYMENT, OR TO OBSTRUCT OR INTERFERE WITH ENTRANCE TO OR EGRESS FROM
ANY PLACE OF EMPLOYMENT, OR TO OBSTRUCT OR INTERFERE WITH FREE AND
UNINTERRUPTED USE OF PUBLIC ROADS, STREETS, HIGHWAYS, RAILWAYS,
AIRPORTS, OR OTHER WAYS OF TRAVEL OR CONVEYANCE." 

THE STATE BOARD IS GIVEN AUTHORITY ON THE FILING OF A COMPLAINT TO
CONDUCT HEARINGS, TO MAKE FINDINGS OF FACT, AND TO ISSUE ORDERS.  FN2
SEC. 111.07.  ORDERS OF THE STATE BOARD ARE ENFORCEABLE BY THE CIRCUIT
COURTS.  ID.  APPELLEE, ALLEN-BRADLEY CO., IS ENGAGED IN THE
MANUFACTURING BUSINESS IN WISCONSIN.  APPELLANT UNION IS A LABOR
ORGANIZATION COMPOSED OF THE EMPLOYEES OF THAT COMPANY.  THE UNION HAD
A CONTRACT WITH THE COMPANY GOVERNING TERMS AND CONDITIONS OF
EMPLOYMENT.  THE CONTRACT WAS CANCELLED BY THE UNION.  THEREAFTER THE
UNION, BY SECRET BALLOT, ORDERED A STRIKE, WHICH WAS CALLED ON MAY 11,
1939.  THE STRIKE LASTED ABOUT THREE MONTHS, DURING WHICH TIME THE
COMPANY CONTINUED TO OPERATE ITS PLANT.  DIFFERENCES AROSE BETWEEN THE
EMPLOYEES WHO WERE ON STRIKE AND THE COMPANY AND THOSE EMPLOYEES WHO
CONTINUED TO WORK.  THE COMPANY THEREUPON FILED A PETITION WITH THE
STATE BOARD, CHARGING THE UNION AND CERTAIN OF ITS OFFICERS AND MEMBERS
WITH UNFAIR LABOR PRACTICES.  THE UNION ANSWERED AND OBJECTED, INTER
ALIA, TO THE JURISDICTION OF THE STATE BOARD, ON THE GROUND THAT AS
RESPECTS THE MATTERS IN CONTROVERSY THE COMPANY WAS SUBJECT EXCLUSIVELY
TO THE PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT AND TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL BOARD.  THE STATE BOARD MADE
FINDINGS OF FACT AND ENTERED AN ORDER AGAINST THE UNION AND ITS
OFFICERS AND MEMBERS.  ON A PETITION FOR REVIEW, THE CIRCUIT COURT
SUSTAINED AND ENFORCED THE BOARD'S ORDER.  THE SUPREME COURT OF
WISCONSIN AFFIRMED THAT JUDGMENT.  237 WIS. 164, 295 N.W. 791.  THE
CASE IS HERE ON APPEAL.  JUDICIAL CODE, SEC. 237(A); 28 U.S.C. SEC.
344(A). 

THE FINDINGS AND ORDER OF THE STATE BOARD AS SUMMARIZED BY THE
SUPREME COURT (237 WIS. PP. 168-170) ARE AS FOLLOWS: 

"BRIEFLY, FROM THE FINDINGS THE FOLLOWING FACTS APPEAR: 

"(A)  APPELLANTS ENGAGED IN MASS PICKETING AT ALL ENTRANCES TO THE
PREMISES OF THE COMPANY FOR THE PURPOSE OF HINDERING AND PREVENTING THE
PURSUIT OF LAWFUL WORK AND EMPLOYMENT BY EMPLOYEES WHO DESIRED TO
WORK. 

"(B)  THEY OBSTRUCTED AND INTERFERED WITH THE ENTRANCE TO AND EGRESS
FROM THE FACTORY AND OBSTRUCTED AND INTERFERED WITH THE FREE AND
UNINTERRUPTED USE OF THE STREETS AND SIDEWALKS SURROUNDING THE
FACTORY. 

"(C)  THEY THREATENED BODILY INJURY AND PROPERTY DAMAGE TO MANY OF
THE EMPLOYEES WHO DESIRED TO CONTINUE THEIR EMPLOYMENT. 

"(D)  THEY REQUIRED OF PERSONS DESIRING TO ENTER THE FACTORY, TO
FIRST OBTAIN PASSES FROM THE UNION.  PERSONS HOLDING SUCH PASSES WERE
ADMITTED WITHOUT INTERFERENCE. 

"(E)  THEY PICKETED THE HOMES OF EMPLOYEES WHO CONTINUED IN THE
EMPLOYMENT OF THE COMPANY. 

"(F)  THAT THE UNION BY ITS OFFICERS AND MANY OF ITS MEMBERS INJURED
THE PERSONS AND PROPERTY OF EMPLOYEES WHO DESIRED TO CONTINUE THEIR
EMPLOYMENT. 

"(G)  THAT THE FOURTEEN INDIVIDUAL APPELLANTS WHO WERE STRIKING
EMPLOYEES, HAD ENGAGED IN VARIOUS ACTS OF MISCONDUCT.  THE FACTS
RELATING TO THOSE WERE FOUND SPECIFICALLY.  THE ACTS CONSISTED OF
INTIMIDATING AND PREVENTING EMPLOYEES FROM PURSUING THEIR WORK BY
THREATS, COERCION, AND ASSAULT; BY DAMAGING PROPERTY OF EMPLOYEES WHO
CONTINUED TO WORK; AND AS TO ONE OF THEM BY CARRYING CONCRETE ROCKS
WHICH HE INTENDED TO USE TO INTIMIDATE EMPLOYEES WHO DESIRED TO WORK. 

"BASED UPON THESE FINDINGS THE BOARD FOUND AS CONCLUSIONS OF LAW,
THAT THE UNION WAS GUILTY OF UNFAIR LABOR PRACTICES IN THE FOLLOWING
RESPECTS: 

"(A)  MASS PICKETING FOR THE PURPOSE OF HINDERING AND PREVENTING THE
PURSUIT OF LAWFUL WORK. 

"(B)  THREATENING EMPLOYEES DESIRING TO WORK WITH BODILY INJURY AND
INJURY TO THEIR PROPERTY. 

"(C)  OBSTRUCTING AND INTERFERING WITH ENTRANCE TO AND EGRESS FROM
THE FACTORY. 

"(D)  OBSTRUCTING AND INTERFERING WITH THE FREE AND UNINTERRUPTED USE
OF THE STREETS AND PUBLIC ROADS SURROUNDING THE FACTORY. 

"(E)  PICKETING THE HOMES OF EMPLOYEES. 

"AS TO THE FOURTEEN INDIVIDUAL APPELLANTS, THE BOARD CONCLUDED THAT
EACH OF THEM WAS GUILTY OF UNFAIR LABOR PRACTICES BY REASON OF THREATS,
ASSAULTS, AND OTHER MISDEMEANORS COMMITTED BY THEM AS SET OUT IN THE
FINDINGS OF FACT. 

"BASED UPON ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW THE BOARD
ORDERED THAT THE UNION, ITS OFFICERS, AGENTS, AND MEMBERS - 

"(1)  CEASE AND DESIST FROM: 

(A)  MASS PICKETING. 

(B)  THREATENING EMPLOYEES. 

(C)  OBSTRUCTING OR INTERFERING WITH THE FACTORY ENTRANCES. 

(D)  OBSTRUCTING OR INTERFERING WITH THE FREE USE OF PUBLIC STREETS,
ROADS, AND SIDEWALKS. 

(E)  PICKETING THE DOMICILES OF EMPLOYEES. 

"THE ORDER REQUIRED THE UNION TO POST NOTICES AT ITS HEADQUARTERS
THAT IT HAD CEASED AND DESISTED IN THE MANNER AFORESAID AND TO NOTIFY
THE BOARD IN WRITING OF STEPS TAKEN TO COMPLY WITH THE ORDER. 

"AS TO THE FOURTEEN INDIVIDUAL APPELLANTS, THE ORDER MADE NO
DETERMINATION BASED UPON THE FINDING THAT THEY WERE INDIVIDUALLY GUILTY
OF UNFAIR LABOR PRACTICES." 

IT WAS ADMITTED THAT THE COMPANY WAS SUBJECT TO THE NATIONAL LABOR
RELATIONS ACT.  THE FEDERAL BOARD, HOWEVER, HAD NOT UNDERTAKEN IN THIS
CASE TO EXERCISE THE JURISDICTION WHICH THAT ACT CONFERRED ON IT.
ACCORDINGLY, THE SUPREME COURT OF WISCONSIN UPHELD THE ORDER OF THE
STATE BOARD, STATING THAT "THERE CAN BE NO CONFLICT BETWEEN THE ACTS
UNTIL THEY ARE APPLIED TO THE SAME LABOR DISPUTE."  IT WAS URGED BEFORE
THAT COURT, AS IT HAS BEEN HERE, THAT THERE WAS NEVERTHELESS A CONFLICT
BETWEEN THAT PART OF THE FINDINGS OF THE STATE BOARD WHICH DEALS WITH
THE INDIVIDUAL APPELLANTS AND THE NATIONAL LABOR RELATIONS ACT.  THE
CONTENTION IS THAT THE INDIVIDUAL APPELLANTS WHO WERE FOUND GUILTY OF
UNFAIR LABOR PRACTICES, AS DEFINED IN THE STATE ACT, ARE, UNDER THE
TERMS OF THE FEDERAL ACT, STILL EMPLOYEES OF THE COMPANY,  FN3  WHILE
UNDER THE STATE ACT THAT RELATIONSHIP IS SEVERED.  FN4  AS TO THAT
ALLEGED CONFLICT, THE WISCONSIN SUPREME COURT MADE TWO ANSWERS:  FIRST,
THE FEDERAL ACT HAD NOT BEEN APPLIED TO THIS LABOR DISPUTE.  SECOND, IT
IS THE ORDER, NOT THE FINDINGS, OF THE STATE BOARD WHICH AFFECTS THE
EMPLOYER AND EMPLOYEE RELATIONSHIP.  SINCE THERE WAS NO PROVISION IN
THE ORDER WHICH SUSPENDED THE STATUS AS EMPLOYEES OF THE FOURTEEN
INDIVIDUAL APPELLANTS WHO WERE FOUND GUILTY OF UNFAIR LABOR PRACTICES,
THERE WAS NO CONFLICT AS TO THEIR EMPLOYEE STATUS UNDER THE STATE AND
FEDERAL ACTS. 

VARIOUS VIEWS HAVE BEEN ADVANCED HERE.  ON THE ONE HAND, IT IS URGED
THAT, IN THIS SITUATION, AS IN THE CASE OF FEDERAL CONTROL OVER
INTRASTATE TRANSPORTATION RATES (SHREVEPORT CASE, 234 U.S. 342, 357;
BOARD OF RAILROAD COMM'RS V. GREAT NORTHERN RY. CO., 281 U.S. 412, 424,
426-428), STATE ACTION SHOULD NOT BE FORECLOSED IN ABSENCE OF A FINDING
BY THE FEDERAL BOARD UNDER SEC. 10(A) THAT AN EMPLOYER'S LABOR PRACTICE
SO AFFECTS INTERSTATE COMMERCE (LABOR BOARD V. FAINBLATT, 306 U.S. 601)
THAT IT SHOULD BE PREVENTED.  ON THE OTHER HAND, IT IS EARNESTLY
CONTENDED THAT THE STATE ACT, VIEWED AS A WHOLE, SO UNDERMINES RIGHTS
PROTECTED AND GRANTED BY THE FEDERAL ACT AND IS SO HOSTILE TO THE
POLICY OF THE FEDERAL ACT THAT IT SHOULD NOT BE ALLOWED TO SURVIVE. 
ACCEPTANCE OF THE LATTER THEORY WOULD NECESSITATE A REVERSAL OF THE
JUDGMENT BELOW.  ACCEPTANCE OF THE FORMER WOULD MEAN THAT IN ALL CASES
ORDERS OF THE STATE BOARD WOULD BE UPHELD IF THE FEDERAL BOARD HAD NOT
ASSUMED JURISDICTION. 

WE DEAL, HOWEVER, NOT WITH THE THEORETICAL DISPUTES BUT WITH CONCRETE
AND SPECIFIC ISSUES RAISED BY ACTUAL CASES.  ASSOCIATED PRESS V. LABOR
BOARD, 301 U.S. 103, 132; UNITED STATES V. APPALACHIAN POWER CO., 311
U.S. 377, 423, AND CASES CITED.  "CONSTITUTIONAL QUESTIONS ARE NOT TO
BE DEALT WITH ABSTRACTLY."  BANDINI PETROLEUM CO. V. SUPERIOR COURT,
284 U.S. 8, 22; ARIZONA V. CALIFORNIA, 283 U.S. 423, 464.  THEY WILL
NOT BE ANTICIPATED BUT WILL BE DEALT WITH ONLY AS THEY ARE
APPROPRIATELY RAISED UPON A RECORD BEFORE US.  TENNESSEE PUBLISHING CO.
V. AMERICAN NATIONAL BANK, 299 U.S. 18, 22.  NOR WILL WE ASSUME IN
ADVANCE THAT A STATE WILL SO CONSTRUE ITS LAW AS TO BRING IT INTO
CONFLICT WITH THE FEDERAL CONSTITUTION OR AN ACT OF CONGRESS.  MOUNTAIN
TIMBER CO. V. WASHINGTON, 243 U.S. 219, 246; GREAT ATLANTIC & PACIFIC
TEA CO. V. GROSJEAN, 301 U.S. 412, 429-430; WATSON V. BUCK, 313 U.S.
387.  HENCE WE CONFINE OUR DISCUSSION TO THE PRECISE FACTS OF THIS CASE
AND INTIMATE NO OPINION AS TO THE VALIDITY OF OTHER TYPES OF ORDERS IN
CASES WHERE THE FEDERAL BOARD HAS NOT ASSUMED JURISDICTION. 

WE ARE NOT UNDER THE NECESSITY OF TREATING THE STATE ACT AS AN
INSEPARABLE WHOLE.  CF. WATSON V. BUCK, SUPRA.  RATHER, WE MUST READ
THE STATE ACT, FOR PURPOSES OF THE PRESENT CASE, AS THOUGH IT CONTAINED
ONLY THOSE PROVISIONS WHICH AUTHORIZE THE STATE BOARD TO ENTER ORDERS
OF THE SPECIFIC TYPE HERE INVOLVED.  THAT ACT CONTAINS A BROAD
SEVERABILITY CLAUSE.  FN5  THE WISCONSIN SUPREME COURT SEEMS TO HAVE
BEEN LIBERAL IN INTERPRETING SUCH CLAUSES SO AS TO SEPARATE VALID FROM
VOID PROVISIONS OF STATUTES.  FN6  ASIDE FROM THAT, WISCONSIN IN THIS
CASE HAS IN FACT APPLIED ONLY A FEW OF THE MANY PROVISIONS OF ITS ACT
TO APPELLANTS.  AND WE HAVE THE WORD OF THE WISCONSIN SUPREME COURT
THAT "THE ACT AFFECTS THE RIGHTS OF PARTIES TO A CONTROVERSY PENDING
BEFORE THE BOARD ONLY IN THE MANNER AND TO THE EXTENT PRESCRIBED BY THE
ORDER."  237 WIS. P. 183.  THAT CONSTRUCTION IS CONCLUSIVE HERE.  SENN
V. TILE LAYERS UNION, 301 U.S. 468, 477; MINNESOTA V. PROBATE COURT,
309 U.S. 270, 273, AND CASES CITED.  HENCE WE NEED NOT SPECULATE AS TO
WHETHER THE PORTIONS OF THE STATUTE ON WHICH THE ORDER RESTS ARE SO
INTERTWINED WITH THE OTHERS THAT THE VARIOUS PROVISIONS OF THE STATE
ACT MUST BE CONSIDERED AS INSEPARABLE.  SINCE WISCONSIN HAS ENFORCED AN
ORDER BASED ONLY ON ONE PART OF THE ACT, WE MUST CONSIDER THAT PORTION
EXACTLY AS WISCONSIN HAS TREATED IT - "COMPLETE IN ITSELF AND CAPABLE
OF STANDING ALONE."  WATSON V. BUCK, SUPRA, P. 397.  VIEWED IN THAT
LIGHT, NO CONFLICT WITH THE NATIONAL LABOR RELATIONS ACT EXISTS. 

THE ONLY EMPLOYEE OR UNION CONDUCT AND ACTIVITY FORBIDDEN BY THE
STATE BOARD IN THIS CASE WAS MASS PICKETING, THREATENING EMPLOYEES
DESIRING TO WORK WITH PHYSICAL INJURY OR PROPERTY DAMAGE, OBSTRUCTING
ENTRANCE TO AND EGRESS FROM THE COMPANY'S FACTORY, OBSTRUCTING THE
STREETS AND PUBLIC ROADS SURROUNDING THE FACTORY, AND PICKETING THE
HOMES OF EMPLOYEES.  SO FAR AS THE FOURTEEN INDIVIDUALS ARE CONCERNED,
THEIR STATUS AS EMPLOYEES OF THE COMPANY WAS NOT AFFECTED. 

WE AGREE WITH THE STATEMENT OF THE UNITED STATES AS AMICUS CURIAE
THAT THE FEDERAL ACT WAS NOT DESIGNED TO PRECLUDE A STATE FROM ENACTING
LEGISLATION LIMITED TO THE PROHIBITION OR REGULATION OF THIS TYPE OF
EMPLOYEE OR UNION ACTIVITY.  THE COMMITTEE REPORTS  FN7  ON THE FEDERAL
ACT PLAINLY INDICATE THAT IT IS NOT "A MERE POLICE COURT MEASURE" AND
THAT AUTHORITY OF THE SEVERAL STATES MAY BE EXERTED TO CONTROL SUCH
CONDUCT.  FURTHERMORE, THIS COURT HAS LONG INSISTED THAT AN "INTENTION
OF CONGRESS TO EXCLUDE STATES FROM EXERTING THEIR POLICE POWER MUST BE
CLEARLY MANIFESTED."  NAPIER V. ATLANTIC COAST LINE R. CO., 272 U.S.
605, 611, AND CASES CITED; KELLY V. WASHINGTON, 302 U.S. 1, 10; SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177; H.P. WELCH CO.
V. NEW HAMPSHIRE, 306 U.S. 79, 85; MAURER V. HAMILTON, 309 U.S. 598,
614; WATSON V. BUCK, SUPRA. CONGRESS HAS NOT MADE SUCH EMPLOYEE AND
UNION CONDUCT AS IS INVOLVED IN THIS CASE SUBJECT TO REGULATION BY THE
FEDERAL BOARD.  NOR ARE WE FACED HERE WITH THE PRECISE PROBLEM WITH
WHICH WE WERE CONFRONTED IN HINES V. DAVIDOWITZ, 312 U.S. 52.  IN THE
HINES CASE, A FEDERAL SYSTEM OF ALIEN REGISTRATION WAS HELD TO
SUPERSEDE A STATE SYSTEM OF REGISTRATION.  BUT THERE WE WERE DEALING
WITH A PROBLEM WHICH HAD AN IMPACT ON THE GENERAL FIELD OF FOREIGN
RELATIONS.  THE DELICACY OF THE ISSUES WHICH WERE POSED ALONE RAISED
GRAVE QUESTIONS AS TO THE PROPRIETY OF ALLOWING A STATE SYSTEM OF
REGULATION TO FUNCTION ALONGSIDE OF A FEDERAL SYSTEM.  IN THAT FIELD,
ANY "CONCURRENT STATE POWER THAT MAY EXIST IS RESTRICTED TO THE
NARROWEST OF LIMITS."  P. 68.  THEREFORE, WE WERE MORE READY TO
CONCLUDE THAT A FEDERAL ACT IN A FIELD THAT TOUCHED INTERNATIONAL
RELATIONS SUPERSEDED STATE REGULATION THAN WE WERE IN THOSE CASES WHERE
A STATE WAS EXERCISING ITS HISTORIC POWERS OVER SUCH TRADITIONALLY
LOCAL MATTERS AS PUBLIC SAFETY AND ORDER AND THE USE OF STREETS AND
HIGHWAYS.  MAURER V. HAMILTON, SUPRA, AND CASES CITED.  HERE, WE ARE
DEALING WITH THE LATTER TYPE OF PROBLEM.  WE WILL NOT LIGHTLY INFER
THAT CONGRESS BY THE MERE PASSAGE OF A FEDERAL ACT HAS IMPAIRED THE
TRADITIONAL SOVEREIGNTY OF THE SEVERAL STATES IN THAT REGARD. 

FURTHERMORE, IN THE HINES CASE THE FEDERAL SYSTEM OF ALIEN
REGISTRATION WAS A "SINGLE INTEGRATED AND ALLEMBRACING" ONE, P. 74. 
HERE, AS WE HAVE SEEN, CONGRESS DESIGNEDLY LEFT OPEN AN AREA FOR STATE
CONTROL.  NOR CAN WE SAY THAT THE CONTROL WHICH CONGRESS HAS ASSERTED
OVER THE SUBJECT MATTER OF LABOR DISPUTES IS SO PERVASIVE (CF.
CLOVERLEAF BUTTER CO. V. PATTERSON, ANTE, P. 148) AS TO PREVENT
WISCONSIN, UNDER THE FAMILIAR RULE OF PENNSYLVANIA R. CO. V. PUBLIC
SERVICE COMM'N, 250 U.S. 566, 569, FROM SUPPLEMENTING FEDERAL
REGULATION IN THE MANNER OF THIS ORDER.  SEC. 7 OF THE FEDERAL ACT
GUARANTEES LABOR ITS "FUNDAMENTAL RIGHT" (LABOR BOARD V. JONES &
LAUGHLIN STEEL CORP., 301 U.S. 1, 33) TO SELF-ORGANIZATION AND
COLLECTIVE BARGAINING.  SEC. 8 AFFORDS EMPLOYEES PROTECTION AGAINST
UNFAIR LABOR PRACTICES OF EMPLOYERS INCLUDING EMPLOYER INTERFERENCE
WITH THE RIGHTS SECURED BY SEC. 7.  SEC. 9 AFFORDS MACHINERY FOR
PROVIDING APPROPRIATE COLLECTIVE BARGAINING UNITS.  AND SEC. 10 GRANTS
THE FEDERAL BOARD "EXCLUSIVE" POWER OF ENFORCEMENT.  IT IS NOT
SUFFICIENT, HOWEVER, TO SHOW THAT THE STATE ACT MIGHT BE SO CONSTRUED
AND APPLIED AS TO DILUTE, IMPAIR, OR DEFEAT THOSE RIGHTS.  WATSON V.
BUCK, SUPRA.  NOR IS THE UNCONSTITUTIONALITY OF THE PROVISIONS OF THE
STATE ACT WHICH UNDERLIE THE PRESENT ORDER ESTABLISHED BY A SHOWING
THAT OTHER PARTS OF THE STATUTE ARE INCOMPATIBLE WITH AND HOSTILE TO
THE POLICY EXPRESSED IN THE FEDERAL ACT.  SINCE WISCONSIN HAS APPLIED
TO APPELLANTS ONLY PARTS OF THE STATE ACT, THE CONFLICT WITH THE POLICY
OR MANDATE OF THE FEDERAL ACT MUST BE FOUND IN THOSE PARTS.  BUT, AS WE
HAVE SAID, THE FEDERAL ACT DOES NOT GOVERN EMPLOYEE OR UNION ACTIVITY
OF THE TYPE HERE ENJOINED.  AND WE FAIL TO SEE HOW THE INABILITY TO
UTILIZE MASS PICKETING, THREATS, VIOLENCE, AND THE OTHER DEVICES WHICH
WERE HERE EMPLOYED IMPAIRS, DILUTES, QUALIFIES OR IN ANY RESPECT
SUBTRACTS FROM ANY OF THE RIGHTS GUARANTEED AND PROTECTED BY THE
FEDERAL ACT.  NOR IS THE FREEDOM TO ENGAGE IN SUCH CONDUCT SHOWN TO BE
SO ESSENTIAL OR INTIMATELY RELATED TO A REALIZATION OF THE GUARANTEES
OF THE FEDERAL ACT THAT ITS DENIAL IS AN IMPAIRMENT OF THE FEDERAL
POLICY.  IF THE ORDER OF THE STATE BOARD AFFECTED THE STATUS OF THE
EMPLOYEES, OR IF IT CAUSED A FORFEITURE OF COLLECTIVE BARGAINING
RIGHTS, A DISTINCTLY DIFFERENT QUESTION WOULD ARISE.  BUT SINCE NO SUCH
RIGHT IS AFFECTED, WE CONCLUDE THAT THIS CASE IS NOT BASICALLY
DIFFERENT FROM THE COMMON SITUATION WHERE A STATE TAKES STEPS TO
PREVENT BREACHES OF THE PEACE IN CONNECTION WITH LABOR DISPUTES.  SINCE
THE STATE SYSTEM OF REGULATION, AS CONSTRUED AND APPLIED HERE, CAN BE
RECONCILED WITH THE FEDERAL ACT AND SINCE THE TWO AS FOCUSED IN THIS
CASE CAN CONSISTENTLY STAND TOGETHER, THE ORDER OF THE STATE BOARD MUST
BE SUSTAINED UNDER THE RULE WHICH HAS LONG OBTAINED IN THIS COURT.  SEE
SINNOT V. DAVENPORT, 22 HOW.  227, 243. 

IN SUM, WE CANNOT SAY THAT THE MERE ENACTMENT OF THE NATIONAL LABOR
RELATIONS ACT, WITHOUT MORE, EXCLUDED STATE REGULATION OF THE TYPE
WHICH WISCONSIN HAS EXERCISED IN THIS CASE.  IT HAS NOT BEEN SHOWN THAT
ANY EMPLOYEE WAS DEPRIVED OF RIGHTS PROTECTED OR GRANTED BY THE FEDERAL
ACT OR THAT THE STATUS OF ANY OF THEM UNDER THE FEDERAL ACT WAS
IMPAIRED.  INDEED, IF THE PORTIONS OF THE STATE ACT HERE INVOKED ARE
INVALID BECAUSE THEY CONFLICT WITH THE FEDERAL ACT, THEN SO LONG AS THE
FEDERAL ACT IS ON THE BOOKS IT IS DIFFICULT TO SEE HOW ANY STATE COULD
UNDER ANY CIRCUMSTANCES REGULATE PICKETING OR DISORDER GROWING OUT OF
LABOR DISPUTES OF COMPANIES WHOSE BUSINESS AFFECTS INTERSTATE
COMMERCE. 

WE REST OUR DECISION ON THE NARROW GROUNDS INDICATED.  WE HAVE HERE
NO QUESTION AS TO CONSTITUTIONAL LIMITATIONS ON STATE CONTROL OF
PICKETING UNDER THE RULE OF THORNHILL'S CASE, 310 U.S. 88.  NOR ARE ANY
OTHER CONSTITUTIONAL QUESTIONS CONCERNING THE WISCONSIN ACT PROPERLY
PRESENTED.  AND IN VIEW OF OUR DISPOSITION OF THE CASE WE FIND IT
UNNECESSARY TO PASS ON OTHER QUESTIONS RAISED BY THE APPELLEES. 
AFFIRMED. 

FN1 SEC. 111.04 PROVIDES:  "EMPLOYES SHALL HAVE THE RIGHT OF
SELFORGANIZATION AND THE RIGHT TO FORM, JOIN OR ASSIST LABOR
ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR
OWN CHOOSING, AND TO ENGAGE IN LAWFUL, CONCERTED ACTIVITIES FOR THE
PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION; AND
SUCH EMPLOYES SHALL ALSO HAVE THE RIGHT TO REFRAIN FROM ANY OR ALL OF
SUCH ACTIVITIES." 

FN2  SEC. 111.07(4) PROVIDES IN PART:  "FINAL ORDERS MAY DISMISS THE
CHARGES OR REQUIRE THE PERSON COMPLAINED OF TO CEASE AND DESIST FROM
THE UNFAIR LABOR PRACTICES FOUND TO HAVE BEEN COMMITTED, SUSPEND HIS
RIGHTS, IMMUNITIES, PRIVILEGES OR REMEDIES GRANTED OR AFFORDED BY THIS
CHAPTER FOR NOT MORE THAN ONE YEAR, AND REQUIRE HIM TO TAKE SUCH
AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYES WITH OR WITHOUT
PAY, AS THE BOARD MAY DEEM PROPER.  ANY ORDER MAY FURTHER REQUIRE SUCH
PERSON TO MAKE REPORTS FROM TIME TO TIME SHOWING THE EXTENT TO WHICH IT
HAS COMPLIED WITH THE ORDER." 

FN3  SEE REPUBLIC STEEL CORP. V. LABOR BOARD, 107 F.2D 472, 479(AFF'D
311 U.S. 7); LABOR BOARD V. STACKPOLE CARBON CO., 105 F.2D 167, 176;
HART & PRICHARD, THE FANSTEEL CASE:  EMPLOYEE MISCONDUCT AND THE
REMEDIAL POWERS OF THE NATIONAL LABOR RELATIONS BOARD, 52 HARV. L. REV.
1275. 

FN4  SEC. 111.02(3) DEFINES THE TERM "EMPLOYE" AS INCLUDING "ANY
INDIVIDUAL WHOSE WORK HAS CEASED SOLELY AS A CONSEQUENCE OF OR IN
CONNECTION WITH ANY CURRENT LABOR DISPUTE OR BECAUSE OF ANY UNFAIR
LABOR PRACTICE ON THE PART OF AN EMPLOYER AND  ...  (B) WHO HAS NOT
BEEN FOUND TO HAVE COMMITTED OR TO HAVE BEEN A PARTY TO ANY UNFAIR
LABOR PRACTICE HEREUNDER,  ...  " 

FN5  SEC. 111.18 PROVIDES:  "IF ANY PROVISION OF THIS CHAPTER OR THE
APPLICATION OF SUCH PROVISION TO ANY PERSON OR CIRCUMSTANCES SHALL BE
HELD INVALID THE REMAINDER OF THIS CHAPTER OR THE APPLICATION OF SUCH
PROVISION TO PERSONS OR CIRCUMSTANCES OTHER THAN THOSE AS TO WHICH IT
IS HELD INVALID SHALL NOT BE AFFECTED THEREBY." 

FN6  SEE STATE V. TUTTLE, 53 WIS. 45, 9 N.W. 791; STATE V. BALLARD,
158 WIS. 251, 148 N.W. 1090; STATE V. BOARD OF STATE CANVASSERS, 159
WIS. 216, 150 N.W. 542; STATE V. LANGE CANNING CO., 164 WIS. 228, 157
N.W. 777, 160 N.W. 57; STATE V. MARRIOTT, 237 WIS. 607, 296 N.W. 622. 

FN7  S. REP. NO. 573, 74TH CONG., 1ST SESS., P. 16:  "NOR CAN THE
COMMITTEE SANCTION THE SUGGESTION THAT THE BILL SHOULD PROHIBIT FRAUD
OR VIOLENCE BY EMPLOYEES OR LABOR UNIONS.  THE BILL IS NOT A MERE
POLICE COURT MEASURE.  THE REMEDIES AGAINST SUCH ACTS IN THE STATE AND
FEDERAL COURTS AND BY THE INVOCATION OF LOCAL POLICE AUTHORITIES ARE
NOW ADEQUATE, AS ARRESTS AND LABOR INJUNCTIONS IN INDUSTRIAL DISPUTES
THROUGHOUT THE COUNTRY WILL ATTEST.  THE NORRIS-LAGUARDIA ACT DOES NOT
DENY TO EMPLOYERS RELIEF IN THE FEDERAL COURTS AGAINST FRAUD, VIOLENCE
OR THREATS OF VIOLENCE.  SEE 29 U.S.C. SEC. 104(E) AND (I)."  AND SEE
H. REP. NO. 1147, 74TH CONG., 1ST SESS., PP. 16-17; REPORT OF THE
NATIONAL LABOR RELATIONS BOARD, HEARINGS BEFORE THE SENATE COMMITTEE ON
EDUCATION AND LABOR, 76TH CONG., 1ST SESS., ON S. 1000, S. 1264, S.
1392, S. 1550, S. 1580, AND S. 2123, PART 3, P. 521. 
..END :














JACOB V. NEW YORK, 315 U.S. 752 


NO. 589.  ARGUED MARCH 6, 1942.  - DECIDED MARCH 30, 1942.  - 119 F.2D
800, REVERSED. 


1.  CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK ARE NOT AVAILABLE
AS DEFENSES TO SUITS UNDER THE JONES ACT; THE ADMIRALTY DOCTRINE OF
COMPARATIVE NEGLIGENCE APPLIES.  P. 755. 

2.  UPON THE EVIDENCE, THE PLAINTIFF IN THIS ACTION UNDER THE JONES
ACT FOR PERSONAL INJURIES SUFFERED IN A FALL CAUSED BY HIS USE OF A
DEFECTIVE WRENCH, WHICH HE HAD ASKED HIS SUPERIOR TO REPLACE, WAS
ENTITLED TO HAVE THE CASE SUBMITTED TO THE JURY ON THE ISSUE WHETHER
HIS INJURIES RESULTED FROM DEFECT OR INSUFFICIENCY, DUE TO THE
EMPLOYER'S NEGLIGENCE, IN ITS APPLIANCES; AND THE DISMISSAL OF HIS
COMPLAINT WAS A DENIAL OF HIS STATUTORY RIGHT OF JURY TRIAL.  P. 756. 

3.  UNDER THE JONES ACT, IT IS A DUTY OF THE EMPLOYER TO FURNISH
REASONABLY SAFE AND SUITABLE SIMPLE TOOLS WHEN HE IS AWARE THAT THOSE
IN USE ARE DEFECTIVE; THE EMPLOYEE NEED NOT FURNISH HIS OWN SIMPLE
TOOLS WHEN HE FINDS THOSE OF THE EMPLOYER DEFECTIVE.  P. 758. 

4.  THE TRIAL COURT'S EXCLUSION OF OPINION EVIDENCE AS TO THE BEST
TYPE OF TOOL FOR THE WORK, WAS NOT ERROR WARRANTING REVERSAL.  P. 758. 

JACOB V. NEW YORK CITY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 314 U.S. 595, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT IN AN ACTION FOR PERSONAL INJURIES UNDER THE
JONES ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE RIGHT OF JURY TRIAL IN CIVIL CASES AT COMMON LAW IS A BASIC AND
FUNDAMENTAL FEATURE OF OUR SYSTEM OF FEDERAL JURISPRUDENCE WHICH IS
PROTECTED BY THE SEVENTH AMENDMENT.  A RIGHT SO FUNDAMENTAL AND SACREC
TO THE CITIZEN, WHETHER GUARANTEED BY THE CONSTITUTION OR PROVIDED BY
STATUTE, SHOULD BE JEALOUSLY GUARDED BY THE COURTS.  THE PRESENT CASE
IS A SUIT BY PETITIONER UNDER THE JONES ACT  FN1  FOR PERSONAL INJURIES
SUSTAINED WHEN HE FELL BECAUSE THE WRENCH HE WAS USING TO TIGHTEN A NUT
SLIPPED UNDER THE TORQUE APPLIED TO IT.  WE ARE CALLED UPON TO
DETERMINE WHETHER ON THE EVIDENCE ADDUCED BY PETITIONER, AND IN
CONTRAVENTION OF ACCEPTED JURIDICAL STANDARDS, PETITIONER WAS
WRONGFULLY DEPRIVED OF HIS STATUTORY RIGHT TO JURY TRIAL BY THE ACTION
OF THE TRIAL COURT IN DISMISSING HIS COMPLAINT,  FN2  THEREBY REFUSING
TO SUBMIT THE CASE TO A JURY WHICH HAD BEEN DULY EMPANELLED TO TRY IT.
IN HOLDING THAT PETITIONER HAD FAILED TO PROVE FACTS SUFFICIENT TO
WARRANT SUBMITTING THE ISSUE OF RESPONDENT'S NEGLIGENCE TO THE JURY,
THE TRIAL COURT RELIED ON THE SO-CALLED SIMPLE TOOL DOCTRINE.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  119 F.2D 800.  THE NOVEL QUESTIONS
THUS PRESENTED IN THE ADMINISTRATION OF THE JONES ACT PROMPTED US TO
GRANT CERTIORARI.  314 U.S. 595. 

PETITIONER'S TESTIMONY  FN3  IS THE COMPLETE ANSWER TO THE QUESTION
WHETHER THE CASE SHOULD HAVE BEEN TAKEN FROM THE JURY.  THE GIST OF
THAT TESTIMONY IS AS FOLLOWS:  FOR THREE WEEKS PRIOR TO THE ACCIDENT,
PETITIONER, AN EMPLOYEE WITH TWENTY YEARS' EXPERIENCE, HAD BEEN SERVING
AS WATER-TENDER IN CHARGE OF THE FIRE-ROOM ON THE "DONGAN HILLS," A
FERRYBOAT OPERATED BY RESPONDENT BETWEEN STATEN AND MANHATTAN ISLANDS
IN NEW YORK HARBOR.  ONE OF HIS DUTIES WAS TO CHANGE OIL STRAINERS. 
THIS WAS DONE ABOUT THREE TIMES A WEEK, AND REQUIRED THE REMOVAL AND
REPLACEMENT OF A MANIFOLD HEAD, HOUSING THE STRAINERS, WHICH WAS HELD
IN PLACE BY SIX STUDS AND NUTS.  WHEN THE MANIFOLD WAS REPLACED, THE
NUTS HAD TO BE VERY TIGHT.  THE BEST TOOL TO REMOVE AND TO TIGHTEN THE
NUTS WAS A STRAIGHT END WRENCH FITTING A 1 1/4" NUT.  PETITIONER USED
AN S-SHAPED END WRENCH OF THE PROPER SIZE WHICH WAS "WELL WORN," "HAD
SEEN A LOT OF SERVICE," WAS "A LOOSE FIT," AND "HAD A LOT OF PLAY ON
IT."  THERE WAS ABOUT ONE-SIXTEENTH OF AN INCH "PLAY IN THE JAWS; IT
WAS WORN."  THE WRENCH WAS ABOUT EIGHTEEN INCHES LONG AND THE "PLAY" AT
THE END WAS "ABOUT AN INCH."  PETITIONER ASKED THE CHIEF ENGINEER FOR A
NEW WRENCH THREE TIMES, THE FIRST REQUEST BEING WHEN PETITIONER FIRST
HAD OCCASION TO USE THE WORN WRENCH TO CHANGE AN OIL STRAINER, AND THE
LAST, TWO OR THREE DAYS BEFORE THE ACCIDENT.  IN ANSWER TO THIS LAST
REQUEST, THE CHIEF ENGINEER "SAID FOR ME (PETITIONER) TO LOOK IN THE
TOOL CLOSET AND SEE IF THERE WAS ONE IN THERE; AND I WENT UP THERE AND
COULDN'T FIND ANY AND I BELIEVE HE SAID HE SENT AN ORDER OUT FOR ONE." 
THE REGULAR WAY OF REQUISITIONING NEEDED TOOLS WAS BY A REPORT TO THE
CHIEF ENGINEER.  ALL PETITIONER WAS SUPPOSED TO DO WAS ORDER; HE DID
NOT KNOW WHAT RESPONDENT KEPT IN ITS STOREROOM.  THE "DONGAN HILLS"
DOCKED AT MANHATTAN ISLAND ON THE AVERAGE OF SIX OR SEVEN TIMES EACH
DAY.  ON THE DAY OF THE ACCIDENT, PETITIONER DID NOT RENEW HIS REQUEST,
BUT HE DID LOOK IN THE CHIEF ENGINEER'S TOOL SET.  HE FOUND NO END
WRENCH OF THE PROPER SIZE, DID NOT KNOW IF A STILLSON WRENCH WAS THERE,
BUT BELIEVED THAT A MONKEY WRENCH WAS.  A MONKEY WRENCH COULD
"PROBABLY" BE USED ON ANY NUT.  AT THE TIME OF THE ACCIDENT, PETITIONER
WAS USING THE WORN, S-SHAPED, END WRENCH TO TIGHTEN THE NUTS AFTER
CHANGING THE OIL STRAINER.  THERE WAS ABOUT FIVE-EIGHTHS OF AN INCH OF
THREAD ON THE STUDS, AND PETITIONER HAD CHANGED THE WRENCH ON ONE NUT
FOUR TIMES.  AS HE STARTED THE FIFTH TIGHTENING, THE WRENCH SLIPPED,
CAUSING HIM TO FALL FROM THE EIGHTEEN INCH SQUARE PLATFORM ON WHICH HE
WAS STANDING TO THE CATWALK EIGHTEEN INCHES BELOW.  IN THE COURSE OF
THE FALL, PETITIONER SUSTAINED AN INJURY TO HIS RIGHT SIDE, WHICH
STRUCK AN ANGLE IRON ALONGSIDE THE CATWALK. 

THE JONES ACT, IN ADDITION TO GIVING INJURED SEAMEN THE RIGHT TO
TRIAL BY JURY IN ACTIONS ARISING UNDER THE ACT, ALSO INCORPORATES "ALL
STATUTES OF THE UNITED STATES MODIFYING OR EXTENDING THE COMMON-LAW
RIGHT OR REMEDY IN CASES OF PERSONAL INJURY TO RAILWAY EMPLOYEES." 
AMONG SUCH STATUTES IS 45 U.S.C. SEC. 51, WHICH PROVIDES IN PART THAT A
CARRIER IS LIABLE FOR "INJURY OR DEATH  ...  BY REASON OF ANY DEFECT OR
INSUFFICIENCY, DUE TO ITS (THE CARRIER'S) NEGLIGENCE, IN ITS CARS,
ENGINES, APPLIANCES, MACHINERY, TRACK, ROADBED, WORKS, BOATS, WHARVES,
OR OTHER EQUIPMENT." 

ALTHOUGH PROOF OF NEGLIGENCE IS AN ESSENTIAL TO RECOVERY UNDER THE
JONES ACT, KUNSCHMAN V. UNITED STATES, 54 F.2D 987; CF. BEADLE V.
SPENCER, 298 U.S. 124, 128, CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF
RISK ARE NOT AVAILABLE DEFENSES.  THE ADMIRALTY DOCTRINE OF COMPARATIVE
NEGLIGENCE APPLIES.  SOCONY-VACUUM CO. V. SMITH, 305 U.S. 424.  THE
SALIENT POINTS OF PETITIONER'S TESTIMONY, SUMMARIZED ABOVE, MADE A
SUFFICIENT SHOWING TO ALLOW THE JURY TO CONSIDER THE ISSUE OF
RESPONDENT'S NEGLIGENCE.  THE WRENCH PETITIONER WAS USING HAD BECOME
DEFECTIVE FOR THE PURPOSE FOR WHICH IT WAS DESIGNED.  AFTER DISCOVERING
THAT DEFECT, PETITIONER MADE THREE REQUESTS TO THE PROPER PERSON, THE
CHIEF ENGINEER, FOR A NEW WRENCH.  THE FIRST OF THOSE REQUESTS WAS
ABOUT THREE WEEKS PRIOR TO THE ACCIDENT, THE LAST BUT TWO OR THREE DAYS
BEFORE IT OCCURRED.  AT THAT TIME, THE CHIEF ENGINEER SAID HE SENT OUT
AN ORDER FOR ONE, BUT IT WAS NOT FORTHCOMING IN THE TWO OR THREE DAYS
INTERVENING BEFORE THE ACCIDENT, DESPITE THE FACT THAT THE "DONGAN
HILLS" DOCKED AT MANHATTAN ISLAND SIX OR SEVEN TIMES A DAY.  WHILE THE
BEST TOOL FOR DOING THE WORK WAS A STRAIGHT END WRENCH OF THE PROPER
SIZE, PETITIONER HAD ACCESS TO A MONKEY WRENCH WHICH "PROBABLY" COULD
BE USED ON ANY NUT.  WE THINK THESE FACTS ENTITLED PETITIONER TO HAVE
THE JURY CONSIDER WHETHER HIS INJURY WAS CAUSED BY ANY "DEFECT OR
INSUFFICIENCY, DUE TO ITS (RESPONDENT'S) NEGLIGENCE, IN ITS
APPLIANCES."  THAT IS TO SAY, IT WAS FOR THE JURY TO DECIDE WHETHER A
MONKEY WRENCH WAS A REASONABLY SAFE AND SUITABLE TOOL FOR PETITIONER'S
WORK, WHETHER RESPONDENT'S FAILURE, ALTHOUGH IT HAD AT LEAST TWO DAYS'
AND POSSIBLY THREE WEEKS' NOTICE OF THE DEFECT, TO SUPPLY PETITIONER
WITH A NEW WRENCH AMOUNTED TO NEGLIGENCE ON ITS PART, AND WHETHER
RESPONDENT, AFTER IT HAD KNOWLEDGE OF THE DEFECT, MIGHT NOT HAVE
REASONABLY FORESEEN THE POSSIBILITY OF RESULTING HARM IF IT ALLOWED THE
WORN WRENCH TO REMAIN IN USE.  CF. SOCONY-VACUUM CO. V. SMITH, SUPRA.
WITHOUT DOUBT THE CASE IS CLOSE AND A JURY MIGHT FIND EITHER WAY.  BUT
THAT IS NO REASON FOR A COURT TO USURP THE FUNCTION OF THE JURY.  WE
ARE SATISFIED THAT A DUE RESPECT FOR THE STATUTORY GUARANTY OF THE
RIGHT OF JURY TRIAL, WITH ITS RESULTING BENEFITS, REQUIRES THE
SUBMISSION OF THIS CASE TO THE JURY. 

THE SIMPLE TOOL DOCTRINE, USED BY THE COURTS BELOW TO BOLSTER THEIR
BELIEF THAT THE EVIDENCE WAS INSUFFICIENT, DOES NOT AFFECT OUR
CONCLUSION.  IN THE FIRST PLACE, THE CONTRARIETY OF OPINION AS TO THE
REASONS FOR AND THE SCOPE OF THE SIMPLE TOOL DOCTRINE, AND THE
UNCERTAINTY OF ITS APPLICATION N4, SUGGEST THAT IT SHOULD NOT APPLY TO
CASES ARISING UNDER LEGISLATION, SUCH AS THE JONES ACT, DESIGNED TO
ENLARGE IN SOME MEASURE THE RIGHTS AND REMEDIES OF INJURED EMPLOYEES
N5.  BUT EVEN ASSUMING ITS APPLICABILITY, THE DOCTRINE DOES NOT JUSTIFY
WITHDRAWING THIS CASE FROM THE JURY.  FOR THE ONLY POSSIBLE BASIS FOR
THE DOCTRINE WHICH IS COMPATIBLE WITH THE PROVISIONS AND POLICY OF THE
JONES ACT IS THAT THE MASTER IS NOT NEGLIGENT IN THE CASE OF DEFECTIVE
SIMPLE TOOLS BECAUSE THE POSSIBILITY OF INJURY FROM SUCH TOOLS IS SO
SLIGHT AS TO IMPOSE NO DUTY ON HIM TO SEE THAT THEY ARE FREE FROM
DEFECTS IN THE FIRST INSTANCE OR TO INSPECT THEM THEREAFTER,  FN6
NEWBERN V. GREAT ATLANTIC & PACIFIC TEA CO., 68 F.2D 523; CF. HEDICKE
V. HIGHLAND SPRINGS CO., 185 MINN. 79, 239 N.W. 896 - OR TO PUT IT
ANOTHER WAY, THE MASTER IS RELIEVED OF THE DUTY TO INSPECT SIMPLE TOOLS
FOR DEFECTS BECAUSE THE SERVANT'S OPPORTUNITY FOR ASCERTAINING SUCH
DEFECTS IS EQUAL TO OR GREATER THAN THE MASTER'S.  O'HARA V. BROWN
HOISTING MACH. CO., 171 F. 394; MILLER V. ERIE R. CO., 21 APP. DIV.
(N.Y.)  45, 47 N.Y.S. 285; 2 AGENCY A.L.I. SEC. 503(D).  PETITIONER
INSPECTED THE WRENCH, FOUND IT DEFECTIVE AND THEN ASKED THREE TIMES FOR
A NEW ONE.  THIS SATISFIED THE BURDEN OF INSPECTION PLACED ON HIS
SHOULDERS BY THE DOCTRINE, AND IT WAS THEN FOR THE JURY TO SAY WHETHER
RESPONDENT'S FAILURE TO COMPLY WITH THOSE REPEATED REQUESTS WAS
NEGLIGENCE ON ITS PART.  TO DENY PETITIONER THE RIGHT TO HAVE THE JURY
PASS ON THAT ISSUE BECAUSE OF THE SIMPLE TOOL DOCTRINE IS TO SAY THAT
DOCTRINE RELIEVES THE MASTER OF ANY DUTY TO FURNISH REASONABLY SAFE AND
SUITABLE SIMPLE TOOLS IN SPITE OF THE FACT THAT HE KNOWS THEY ARE
DEFECTIVE, AND REQUIRES THE SERVANT NOT ONLY TO INSPECT SIMPLE TOOLS
FOR DEFECTS, BUT ALSO TO SUPPLY HIS OWN SIMPLE TOOLS WHEN HE FINDS
THOSE OF THE MASTER DEFECTIVE.  THIS IS SO OBVIOUS A PERVERSION OF THE
JONES ACT AS TO REQUIRE NO COMMENT.  FN7 

SINCE THERE MUST BE A NEW TRIAL, WE DEEM IT APPROPRIATE TO STATE
THAT, IN OUR OPINION, NO REVERSIBLE ERROR WAS COMMITTED WHEN THE TRIAL
COURT REFUSED TO ALLOW OPINION TESTIMONY AS TO THE BEST TYPE OF TOOL
FOR THE WORK.  FN8  RESPONDENT'S DUTY WAS NOT TO SUPPLY THE BEST TOOLS,
BUT ONLY TOOLS WHICH WERE REASONABLY SAFE AND SUITABLE.  CF. THE
TAWMIE, 80 F.2D 792; THE CRICKET, 71 F.2D 61. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  41 STAT. 988, 1007, 46 U.S.C. SEC. 688. 

FN2  THE COMPLAINT SET FORTH TWO CAUSES OF ACTION - THE FIRST FOR
PERSONAL INJURIES, AND THE SECOND FOR MAINTENANCE AND CURE.  RESPONDENT
MOVED TO DISMISS ONLY THE FIRST CAUSE OF ACTION.  AT THE SAME TIME, IN
SETTLEMENT OF THE SECOND CAUSE OF ACTION, RESPONDENT OFFERED TO CONSENT
TO JUDGMENT FOR LOSS OF WAGES FROM THE TIME OF THE ACCIDENT UNTIL
PETITIONER RETURNED TO WORK.  THIS OFFER WAS REFUSED BY PETITIONER'S
COUNSEL AND THE SECOND CAUSE WAS THEREUPON DISMISSED.  THE CIRCUIT
COURT OF APPEALS, SUA SPONTE, DIRECTED THAT JUDGMENT BE ENTERED ON THE
SECOND CAUSE OF ACTION FOR PETITIONER, IN THE AMOUNT ADMITTED TO BE DUE
FROM RESPONDENT.  THAT JUDGMENT IS NOT IN ISSUE HERE.  ONLY THE FIRST
CAUSE OF ACTION, THAT FOR PERSONAL INJURIES, SURVIVES FOR OUR
CONSIDERATION. 

FN3  PETITIONER WAS THE SOLE WITNESS IN HIS OWN BEHALF.  THE TRIAL
COURT DID NOT ALLOW AN OPINION WITNESS, CALLED FOR THE PURPOSE OF
ESTABLISHING THE BEST TYPE OF WRENCH FOR THE WORK PETITIONER WAS DOING
AT THE TIME OF THE ACCIDENT, TO TESTIFY. 

FN4  SEE 3 LABATT, MASTER AND SERVANT (2D ED.), PP. 2476-2484. 

FN5  COMPARE MCCARTHY V. PALMER, 113 F.2D 721, WITH SPAIN V. POWELL,
90 F.2D 580. 

FN6  IF THE DOCTRINE IS BUT A PHASE OF ASSUMPTION OF RISK OR
CONTRIBUTORY NEGLIGENCE, AS HAS BEEN SUGGESTED (SEE LABATT, OP. CIT.,
PP. 2479, 2480, 2484), IT IS MANIFESTLY NOT APPLICABLE TO ACTIONS UNDER
THE JONES ACT, FOR THOSE COMMON-LAW AFFIRMATIVE DEFENSES ARE NOT
AVAILABLE IN SUCH ACTIONS.  SOCONY-VACUUM CO. V. SMITH, 305 U.S. 424. 

AND, IF THE SCOPE OF THE DOCTRINE IS THAT A MASTER IS UNDER NO DUTY
TO FURNISH REASONABLY SAFE AND SUITABLE SIMPLE TOOLS (SEE ALLEN GRAVEL
CO. V. YARBROUGH, 133 MISS.  652, 98 SO. 117; MIDDLETON V. NATIONAL BOX
CO., 38 F.2D 89), THE DOCTRINE IS HARDLY COMPATIBLE WITH THE SCHEME OF
THE JONES ACT FIXING LIABILITY ON A MASTER FOR INJURIES CAUSED BY
DEFECTS AND INSUFFICIENCIES IN HIS APPLIANCES DUE TO HIS NEGLIGENCE. 

FN7  SEE NOTE 6, ANTE. 

FN8  SEE NOTE 3, ANTE. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON CONCUR IN THE
RESULT. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, AND MR. JUSTICE REED ARE OF
OPINION THAT THE JUDGMENT BELOW SHOULD BE AFFIRMED. 
..END :

















MUNCIE GEAR CO. V. OUTBOARD CO., 315 U.S. 759 


NO. 323.  ARGUED FEBRUARY 12, 1942.  - DECIDED MARCH 30, 1942.  - 119
F.2D 404, REVERSED. 


1.  THE COURT CONSIDERED AS A REASON FOR THE GRANTING OF CERTIORARI TO
REVIEW A DECISION OF A CIRCUIT COURT OF APPEALS SUSTAINING CLAIMS OF A
PATENT AS TO WHICH THERE WAS NO CONFLICT OF DECISION, THE FACT THAT THE
PATENT DOMINATED A SUBSTANTIAL PORTION OF AN INDUSTRY SO CONCENTRATED
IN ONE CIRCUIT THAT A CONFLICT OF DECISION WAS UNLIKELY.  P. 765. 

2.  CLAIMS 11, 12, 13 AND 14 OF JOHNSON PATENT NO. 1,716,962, FOR AN
ALLEGED INVENTION TO OVERCOME CAVITATION IN THE OPERATION OF RELATIVELY
LARGE AND FAST OUTBOARD MOTORS, HELD INVALID UNDER R.S. SEC. 4866,
BECAUSE OF PUBLIC USE, OR SALE, OF DEVICES EMBODYING THE ALLEGED
INVENTION, MORE THAN TWO YEARS BEFORE THE FIRST DISCLOSURE THEREOF TO
THE PATENT OFFICE.  P. 768. 

3.  UPON THE RECORD IN THIS CASE, HELD THAT A DECISION BY THIS COURT
OF THE QUESTION UNDER R.S. SEC. 4866 WAS NOT FORECLOSED BY THE
OBSCURITY OF ITS PRESENTATION IN THE COURTS BELOW.  P. 768. 

MUNCIE GEAR WORKS, INC. ET AL. V. OUTBOARD, MARINE & MANUFACTURING CO.
ET AL 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 314 U.S. 594, TO REVIEW A JUDGMENT WHICH REVERSED A
JUDGMENT OF THE DISTRICT COURT, AND HELD THE CLAIMS OF A PATENT VALID
AND INFRINGED. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

WE ARE REQUIRED IN THIS CASE TO DETERMINE THE VALIDITY OF CLAIMS
NUMBERED 11, 12, 13 AND 14 OF LETTERS PATENT NO. 1,716,962, GRANTED ON
JUNE 11, 1929, TO HARRY L. JOHNSON FOR INVENTION IN A "WATER PROPULSION
DEVICE."  RESPONDENT JOHNSON BROTHERS ENGINEERING CORPORATION IS THE
OWNER OF THE PATENT, AND RESPONDENT OUTBOARD, MARINE & MANUFACTURING
COMPANY, IS THE EXCLUSIVE LICENSEE THEREUNDER.  PETITIONER MUNCIE GEAR
WORKS, INC., MANUFACTURED OUTBOARD MOTORS WHICH ARE CLAIMED TO
INFRINGE, AND PETITIONER BRUNS & COLLINS, INC., SOLD THEM. 

RESPONDENTS CONTEND THAT THIS IS A VALIDLY ISSUED PATENT COVERING AN
INVENTION WHICH SOLVED THE PROBLEMS OF "CAVITATION" BY RELATIVELY LARGE
AND FAST OUTBOARD MOTORS.  "CAVITATION" IS THE DRAWING OF AIR BY THE
PROPELLER FROM ABOVE THE SURFACE OF THE WATER TO THE PROPELLER ITSELF. 
AIR SO DRAWN REDUCES THE PROPULSIVE EFFECT OF THE PROPELLER AND CAUSES
"RACING" OF THE MOTOR WITH CONSEQUENT RISK OF ITS DISINTEGRATION AND
DANGER TO THE USER.  INCREASED SPEED OR POWER ENTAILS A GREATER
TENDENCY TO CAVITATE.  CAVITATION MAY BE DIMINISHED BY SETTING THE
PROPELLER DEEPER IN THE WATER, BUT THIS INCREASED PROJECTION INCREASES
RESISTANCE AND RETARDS SPEED. 

LONG BEFORE THE PATENT IN QUESTION, IT WAS KNOWN THAT CAVITATION
COULD BE CONTROLLED, AND IN PRACTICE IT WAS CONTROLLED, IN AT LEAST ALL
BUT RELATIVELY LARGE AND FAST OUTBOARD MOTORS, BY SETTING A FLAT PLATE
HORIZONTALLY ABOVE THE PROPELLER AND BENEATH THE SURFACE OF THE WATER,
TO ACT AS A BAFFLE AND PREVENT THE PROPELLER FROM DRAWING AIR.  FN1
RESPONDENTS PRESENTED EXPERT TESTIMONY TO THE EFFECT THAT RELATIVELY
LARGE AND FAST WATER-COOLED OUTBOARD MOTORS CANNOT BE SUCCESSFUL UNLESS
THEY EMBODY THE ASSERTED INVENTION WHICH RESPONDENTS SAY IS THE SUBJECT
MATTER OF THE CLAIMS IN QUESTION.  IN GENERAL, THIS MAY BE SAID TO
CONSIST IN THE USE OF AN ANTI-CAVITATION PLATE ON A HOUSING FOR THE
ENGINE AND PROPELLER SHAFTS ENCLOSING THE WATER PASSAGES FOR THE
COOLING SYSTEM, SHAPED BOTH ABOVE AND BELOW THE PLATE SO AS TO REDUCE
WATER DISPLACEMENT AND RESISTANCE, AND THUS TO REDUCE OR ELIMINATE EDDY
CURRENTS FORMING VORTEXES THROUGH WHICH AIR CAN BE SUCKED INTO THE
PROPELLER.  THIS PERMITS ADEQUATE CONTROL OF CAVITATION BY MEANS OF A
NOT UNDULY LARGE ANTI-CAVITATION PLATE. 

HARRY L. JOHNSON, AN EXPERIENCED ENGINEER AND MANUFACTURER OF
OUTBOARD MOTORS, FILED HIS APPLICATION FOR THE PATENT ON AUGUST 25,
1926, BUT IN NO WAY SUGGESTED THE COMBINATION NOW ASSERTED AS HIS
INVENTION.  THE SINGLE SHEET OF DRAWING ACCOMPANYING THE APPLICATION
WAS NOT CHANGED DURING THE PROSECUTION OF THE APPLICATION, AND IS THE
SAME AS THE DRAWING OF THE ISSUED PATENT.  THIS DRAWING SHOWED AN
OUTBOARD MOTOR ASSEMBLY COMPRISING, AMONG OTHER THINGS, AN ENGINE AT
THE TOP CONNECTED WITH A PROPELLER AT THE BOTTOM, WITH AN ANTI
CAVITATION PLATE LOCATED HORIZONTALLY ABOVE THE PROPELLER,
APPROXIMATELY MIDWAY BETWEEN TOP AND BOTTOM OF THE HOUSING FOR THE
ENGINE AND PROPELLER SHAFTS.  ALL WATER PASSAGES FOR THE COOLING SYSTEM
BENEATH THE NORMAL WATER LEVEL WERE SHOWN TO BE ENCLOSED IN THE
HOUSING.  NO CROSS SECTION OF THIS HOUSING WAS DRAWN OR INDICATED, AND
FOR ALL THAT APPEARS FROM THE DRAWING IT MIGHT HAVE BEEN CIRCULAR,
TRIANGULAR OR RECTANGULAR.  THE DRAWING SHOWED AN ARCHED MEMBER
EXTENDING FROM THE HOUSING AND ANTI-CAVITATION PLATE OVER THE TOP AND
TO THE REAR OF THE PROPELLER, CONTAINING OPENINGS AND PASSAGES FOR THE
INTAKE AND DISCHARGE OF WATER, AND ENDING IN A CURVED "DEFLECTION
PLATE" EXTENDING REARWARDLY LIKE A FIXED RUDDER.  FROM THE
SPECIFICATIONS AND CLAIMS, IT APPEARED THAT THE PURPOSE OF THE
DEFLECTION PLATE WAS TO COMPENSATE FOR THE SIDE AND PIVOTAL FORCE OF
THE MOVING PROPELLER, WHICH TENDED TO DRAW THE BOAT OFF ITS COURSE
UNLESS THE OPERATOR MADE CONSTANT ADJUSTMENT TO OFFSET THE "SIDE
THROW."  THE SPECIFICATIONS AND DRAWINGS BOTH INDICATED AN ANTI
CAVITATION PLATE WHICH THE SPECIFICATIONS SAID "PREVENTS CAVITATION,"
BUT IT WAS IN NO WAY ASSERTED THAT THE CAVITATION PLATE WAS NEW, OR
THAT IT WAS BEING EMPLOYED IN ANY NOVEL COOPERATIVE RELATION TO THE
OTHER ELEMENTS. 

ALL OF THE CLAIMS OF THE APPLICATION AS ORIGINALLY MADE WERE REJECTED
ON DECEMBER 15, 1926.  ON DECEMBER 13, 1927, JOHNSON OFFERED AMENDMENTS
WHICH RETAINED AND AMENDED THE PRIOR CLAIMS AND ADDED OTHERS DIRECTED
TO THE FEATURE OF THE DEFLECTION PLATE.  IN URGING ALLOWANCE, HE SAID,
AMONG OTHER THINGS, "IT IS CONCEDED THAT CAVITATION PLATES ARE OLD IN
THE ART AS SHOWN IN THE PATENT TO JOHNSON CITED," AND HE PROCEEDED TO
URGE AS AN INVENTION THE COMBINATION OF THE CAVITATION PLATE AND THE
ARCHING MEMBER OR DEFLECTION PLATE.  A SIMILAR SUPPLEMENTAL AMENDMENT
WAS FILED ON JANUARY 19, 1928.  SEVERAL OF THE ORIGINAL CLAIMS AS
AMENDED WERE ALLOWED, AND THE REST OF THE CLAIMS REJECTED, ON JUNE 7,
1928. 

ON DECEMBER 8, 1928, JOHNSON CAME FORWARD WITH NEW CLAIMS.  CLAIMS 20
TO 25 OFFERED BY THIS AMENDMENT MADE NO MENTION OF THE DEFLECTION PLATE
OR OF THE ARCHING MEMBERS, BUT DID NOT EVEN SUGGEST THE PRESENTLY
ASSERTED INVENTION.  ON MARCH 30, 1929, JOHNSON CANCELLED THESE CLAIMS
AND OFFERED FURTHER AMENDMENTS TO HIS ORIGINAL APPLICATION, TOGETHER
WITH A SUPPLEMENTAL OATH THAT HE HAD INVENTED THE SUBJECT MATTER OF THE
APPLICATION AS SO AMENDED, PRIOR TO THE FILING OF THE ORIGINAL
AMENDMENT.  FN2  THE EFFECT OF THOSE CHANGES WAS APTLY DESCRIBED BY THE
PATENT EXAMINER: "THE AMENDMENTS HAVE BEEN SUCH THAT THE CLAIMS NOW
EMPHASIZE THE ANTI-CAVITATION PLATE RATHER THAN THE ANTI-TORQUE
PLATE."  WITH CHANGES WHICH ARE IMMATERIAL HERE, THE NEW CLAIMS SO
OFFERED BECAME THE CLAIMS IN ISSUE.  IN THEM, JOHNSON, FOR THE FIRST
TIME, MADE CLAIMS RELATING TO THE EXTERIOR SURFACE OF THE HOUSING. 
CLAIM 12 DESCRIBED THE HOUSING AS HAVING "UNBROKEN OUTER WALL SURFACES
AT EACH SIDE," AND CLAIM 14, AS HAVING "SMOOTH AND UNBROKEN WALLS." 
CLAIMS 11 AND 13 WERE SILENT ON THE SUBJECT.  THE AMENDMENT ALSO SET
FORTH AN ADDITION TO THE DESCRIPTION WHICH WAS INCORPORATED IN THE
DESCRIPTION OF THE PATENT AS ISSUED.  HERE WE FIND THE EXPRESSION
"RELATIVELY SMOOTH AND SUBSTANTIALLY STREAM-LINE SURFACES."  OTHER THAN
THESE, NO INDICATION OF THE NATURE OF THE SURFACE OR CROSS SECTION OF
THE HOUSING WAS GIVEN AT ANY TIME DURING THE PROSECUTION OF THE
APPLICATION. 

THE PETITIONERS INTERPOSED DEFENSES TO ALL OF THE EIGHT PATENTS UPON
WHICH RESPONDENTS SUED THEM IN THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN DIVISION,  FN3  WHICH WE TAKE TO HAVE PUT
IN ISSUE THE QUESTION WHETHER THE CLAIMS WERE VOID BECAUSE MADE MORE
THAN TWO YEARS AFTER THE FIRST PUBLIC USE OF THE DEVICE.  FN4  AT THE
TRIAL, TWO OF THE OFFICERS OF RESPONDENT OUTBOARD, MARINE &
MANUFACTURING COMPANY TESTIFIED ON DIRECT EXAMINATION AS RESPONDENTS'
WITNESSES TO THE EFFECT THAT IN JANUARY OR FEBRUARY OF 1926 ONE OF THIS
RESPONDENT'S PREDECESSORS PUT ON THE MARKET LICENSED OUTBOARD MOTORS
EQUIPPED WITH SMOOTH-WALLED HOUSINGS, ANTI-CAVITATION PLATES, AND
INTERNAL WATER PASSAGES AS DESCRIBED IN THE CLAIMS IN SUIT; AND THAT AT
LEAST ONE COMPETITOR (WHICH WAS ALSO A PREDECESSOR) HAD BROUGHT OUT A
SUBSTANTIALLY SIMILAR, BUT UNLICENSED, MOTOR ABOUT A YEAR LATER.  FN5 

IN AN UNREPORTED DECISION THE DISTRICT COURT DID NOT TOUCH ON THIS
QUESTION, BUT FOUND AS A MATTER OF FACT AND OF LAW THAT THE CLAIMS IN
QUESTION WERE INVALID BECAUSE MERELY AGGREGATIONAL.  ON APPEAL TO THE
CIRCUIT COURT OF APPEALS THE ISSUE OF SALE OR PUBLIC USE WAS NOT
CLEARLY PRESENTED,  FN6  IF INDEED IT WAS PRESENTED AT ALL; AND THE
OPINION RENDERED BY THAT COURT DID NOT ADVERT TO IT, ALTHOUGH IT HELD
THAT THE CLAIMS HERE INVOLVED WERE VALID AND INFRINGED.  119 F.2D 404. 
WHILE THERE WAS NO CONFLICT OF DECISION WITH RESPECT TO THESE CLAIMS,
FN7  WE GRANTED CERTIORARI IN VIEW OF THE QUESTIONS PRESENTED AND
BECAUSE THE PATENT DOMINATES A SUBSTANTIAL PORTION OF AN INDUSTRY SO
CONCENTRATED IN THE SEVENTH CIRCUIT THAT LITIGATION IN OTHER CIRCUITS,
RESULTING IN A CONFLICT OF DECISIONS, IS UNLIKELY.  314 U.S. 594. 
SCHRIBER-SCHROTH CO. V. CLEVELAND TRUST CO., 305 U.S. 47. 

THE PRESENT CASE, PROVIDED FOR THE ISSUANCE OF A PATENT TO AN INVENTOR
UPON CERTAIN CONDITIONS, ONE OF WHICH WAS THAT HIS INVENTION WAS "NOT
IN PUBLIC USE OR ON SALE IN THIS COUNTRY FOR MORE THAN TWO YEARS PRIOR
TO HIS APPLICATION."  FN8 

IN AN EFFORT TO AVOID THE EFFECT OF THIS PROVISION, RESPONDENTS
CONTEND THAT THE QUESTION OF ITS APPLICABILITY WAS NOT RAISED EITHER IN
THE DISTRICT COURT OR IN THE CIRCUIT COURT OF APPEALS; THAT THERE WAS
NO OPPORTUNITY TO MEET THE ISSUE; AND THAT THE INVENTION AS FINALLY
CLAIMED WAS DISCLOSED BY THE APPLICATION AS ORIGINALLY MADE OR IN ANY
EVENT AS AMENDED ON DECEMBER 8, 1928. 

HOWEVER, THE EVIDENCE OF PUBLIC USE AND SALE, GIVEN, AS WE HAVE
POINTED OUT, BY RESPONDENTS' OWN OFFICERS AND WITNESSES,  FN9  HAS NOT
BEEN QUESTIONED OR CONTRADICTED, AND IS INTERPRETED BY RESPONDENTS'
COUNSEL IN ACCORDANCE WITH OUR VIEW OF IT.  IN THEIR BRIEF THEY SAY "IT
IS TRUE THAT AFTER JOHNSON MOTOR COMPANY, LICENSEE UNDER THE PATENT IN
SUIT, HAD POPULARIZED DEVICES EMBODYING THE SUBJECT MATTER OF THE
CLAIMS IN SUIT, AT LEAST ONE COMPETITOR COPIED THE COMBINATIONS OF THE
CLAIMS IN SUIT FROM THE JOHNSON MOTOR BEFORE CLAIMS CLOSELY RESEMBLING
THOSE IN SUIT WERE PRESENTED TO THE PATENT OFFICE IN DECEMBER 1928. 
THIS WAS DONE BY LOCKWOOD ASH MOTOR COMPANY, THEN A COMPETITOR, BUT
SUBSEQUENTLY MERGED TO CONSTITUTE A PREDECESSOR OF RESPONDENT,
OUTBOARD, MARINE & MANUFACTURING COMPANY.  ...  LOCKWOOD ASH FIRST
ADOPTED THIS COMBINATION FOR THE 1927 SEASON.  THE MODEL YEAR COMMENCED
IN JANUARY OR FEBRUARY.  ...  CONCEDEDLY, THE ORIGINAL CLAIMS WERE
LIMITED ADDITIONALLY EITHER TO THE DEFLECTION PLATE OR TO THE ARCHED
SUPPORT.  BUT CLAIMS WITHOUT THESE LIMITATIONS HAD, CONTRARY TO
PETITIONERS' ASSERTIONS, BEEN FILED DECEMBER 8, 1928.  THE DIFFERENCE
IN DATE IS CRITICAL BECAUSE THE RECORD SHOWS THAT THE ONLY MANUFACTURE
OF DEVICES EMBODYING THE INVENTION WHICH HAD OCCURRED MORE THAN TWO
YEARS PRIOR TO DECEMBER 8, 1928, WAS LICENSED MANUFACTURE BY JOHNSON
MOTOR COMPANY, PREDECESSOR OF RESPONDENT OUTBOARD, MARINE &
MANUFACTURING COMPANY, AND IN 1926, EXCLUSIVE LICENSEE OF RESPONDENT
JOHNSON BROTHERS ENGINEERING CORPORATION, OWNER OF THE APPLICATION FOR
THE PATENT IN SUIT.  ...  THE ONLY CONCERN WHICH PRODUCED OUTBOARD
MOTORS IN ACCORDANCE WITH THE INVENTION OF THE PATENT IN 1926 WAS THE
EXCLUSIVE LICENSEE UNDER THE APPLICATION FOR THE PATENT IN SUIT.  ...
MARCH, 1929, WOULD BE MORE THAN TWO YEARS AFTER THE OPENING OF THE 1927
MODEL YEAR; BUT THE ACTUAL DATE IN DECEMBER, 1928, WHEN THE PATENTEE
CLAIMED THE SPECIFIC INVENTION IN CONTROVERSY, WITHOUT REGARD TO
DEFLECTION PLATE OR ARCHED SUPPORT, WAS WELL WITHIN TWO YEARS OF THE
FIRST COMPETITIVE USE OF THE INVENTION, EVEN ASSUMING THAT THE TWO YEAR
PERIOD IS OF ANY SIGNIFICANCE IN THE PRESENT CASE.  ...  " 

IT IS CLEAR TO US, HOWEVER, THAT THE AMENDMENTS OF DECEMBER 8, 1928,
LIKE THE ORIGINAL APPLICATION, WHOLLY FAILED TO DISCLOSE THE INVENTION
NOW ASSERTED. 

THE CLAIMS IN QUESTION ARE INVALID IF THERE WAS PUBLIC USE, OR SALE,
OF THE DEVICE WHICH THEY ARE CLAIMED TO COVER, MORE THAN TWO YEARS
BEFORE THE FIRST DISCLOSURE THEREOF TO THE PATENT OFFICE.  CF. RAILWAY
CO. V. SAYLES, 97 U.S. 554, 557, 559, 563-64; SCHRIBER-SCHROTH CO. V.
CLEVELAND TRUST CO., SUPRA, AT 57.  SECTION 4886 OF THE REVISED
STATUTES WOULD IN TERMS PROVIDE FOR THEIR INVALIDITY HAD THEY BEEN
OFFERED BY APPLICATION RATHER THAN BY AMENDMENT; AND WHATEVER MAY BE
THE EFFICACY OF AN AMENDMENT AS A SUBSTITUTE FOR AN APPLICATION, IT
SURELY CAN EFFECT NO MORE THAN THE APPLICATION ITSELF. 

WE THINK THE CONCLUSION IS INESCAPABLE THAT THERE WAS PUBLIC USE, OR
SALE, OF DEVICES EMBODYING THE ASSERTED INVENTION, MORE THAN TWO YEARS
BEFORE IT WAS FIRST PRESENTED TO THE PATENT OFFICE.  WE ARE NOT
FORECLOSED FROM A DECISION UNDER SEC. 4886 ON THE POINT BY THE
OBSCURITY OF ITS PRESENTATION IN THE COURTS BELOW.  THIS ISSUE HAS BEEN
FULLY PRESENTED TO THIS COURT BY THE PETITION FOR A WRIT OF CERTIORARI,
AND IN SUBSEQUENT BRIEFS AND ARGUMENT; AND THERE IS NOT THE SLIGHTEST
INDICATION THAT RESPONDENTS HAVE BEEN PREJUDICED BY SUCH OBSCURITY.  TO
SUSTAIN THE CLAIMS IN QUESTION UPON THE ESTABLISHED AND ADMITTED FACTS
WOULD REQUIRE A PLAIN DISREGARD OF THE PUBLIC INTEREST SOUGHT TO BE
SAFEGUARDED BY THE PATENT STATUTES, AND SO FREQUENTLY PRESENT BUT SO
SELDOM ADEQUATELY REPRESENTED IN PATENT LITIGATION. 

WE THEREFORE HOLD THAT THE CLAIMS IN QUESTION ARE INVALID UNDER SEC.
4886 OF THE REVISED STATUTES, AND ACCORDINGLY HAVE NO OCCASION TO
DECIDE ANY OTHER QUESTION IN THE CASE.  REVERSED. 

FN1  SMITH, NO. 1,226,400(1917); JOHNSON, NO. 1,467,641(1923).    FN2
NO QUESTION HAS EVER BEEN RAISED IN THIS CASE RESPECTING THE VERACITY
OF THIS OATH.  CF. ELIZABETH V. PAVEMENT CO., 97 U.S. 126, 130. 

FN3  THE PATENT HERE INVOLVED AND TWO OTHERS WERE LITIGATED IN ONE
SUIT, WITH WHICH WAS CONSOLIDATED ANOTHER SUIT INVOLVING FIVE OTHER
PATENTS.  ONE OF THE PATENTS WAS WITHDRAWN PRIOR TO TRIAL, AND THE
COURTS BELOW DISPOSED OF SIX OF THE SEVEN REMAINING PATENTS ADVERSELY
TO THE RESPONDENTS. 

FN4  THESE READ AS FOLLOWS: 

"THE DEFENDANTS ARE INFORMED AND BELIEVE AND THEREFORE AVER THAT EACH
OF THE LETTERS PATENT IN SUIT WAS AND IS VOID AND OF NO EFFECT IN LAW
IN THAT THE ALLEGED INVENTIONS OR IMPROVEMENTS DESCRIBED THEREIN WERE
INVENTED BY, OR KNOWN TO, OR USED BY OTHERS IN THE UNITED STATES,
BEFORE THE ALLEGED INVENTIONS OF THE SAID PATENTEES OF THE PATENTS IN
SUIT, AND FOR MORE THAN TWO YEARS PRIOR TO THE RESPECTIVE APPLICATIONS
FOR SAID PATENTS; AMONG WHICH PRIOR INVENTORS AND USERS AND THOSE
HAVING PRIOR KNOWLEDGE ARE THE PATENTEES AND THEIR ASSIGNS OF THE
SEVERAL LETTERS PATENTS NAMED IN THE ANNEXED SCHEDULE 'A', AT THE
PLACES AND ADDRESSES NAMED IN SAID LETTERS PATENT, AND OTHER PRIOR
INVENTORS, USERS AND THOSE HAVING PRIOR KNOWLEDGE THE NAMES OF WHOM,
AND THE TIMES AND PLACES OF SUCH OTHER PUBLIC USES, BEING AT THE
PRESENT TIME UNKNOWN TO DEFENDANTS, BUT WHICH, WHEN FULLY ASCERTAINED,
DEFENDANTS PRAY LEAVE TO INSERT IN THIS ANSWER BY AMENDMENTS THERETO. 
(NO SUCH AMENDMENT WAS EVER MADE OR ATTEMPTED.) 

"DEFENDANTS ARE INFORMED AND BELIEVE AND THEREFORE AVER THAT EACH OF
THE LETTERS PATENT IN SUIT IS INVALID AND VOID FOR THE REASON THAT THE
ALLEGED INVENTION THEREOF PURPORTED TO BE PATENTED THEREBY ARE NOT THE
SAME AS WERE DISCLOSED IN THE APPLICATION THEREFOR AS ORIGINALLY FILED,
BUT ARE SUBSTANTIALLY DIFFERENT FROM ANY INVENTION INDICATED,
DESCRIBED, OR SUGGESTED IN THE ORIGINAL APPLICATIONS THEREFOR; THAT THE
APPLICATIONS THEREFOR WERE AMENDED IN THE SPECIFICATION AND CLAIMS
DURING THE PROSECUTION THEREOF AND THE ALLEGED PATENTED SUBJECT MATTER
IS NOT SUPPORTED BY OATH AS REQUIRED BY LAW; THAT THE SAID APPLICATIONS
WERE UNLAWFULLY ENLARGED DURING THE PROSECUTION THEREOF; AND THAT THE
CLAIMS OF SAID LETTERS PATENT ARE INVALID AND VOID FOR THE REASON THAT
THEY INCLUDE MATTER NOT SHOWN OR ADEQUATELY DESCRIBED IN THE SAID
PATENTS." 

FN5  TANNER, VICE PRESIDENT IN CHARGE OF THE SALES OF THE JOHNSON
MOTORS DIVISION, TESTIFIED AS FOLLOWS: 

"Q.  ARE YOU FAMILIAR WITH THE TYPE OF LOWER UNIT CONSTRUCTION WHICH
IS SHOWN ON THIS CHART REPRODUCED FROM THE DRAWINGS OF THE JOHNSON
PATENT NO. 1,716,962?  A. I AM. 

"Q.  DO YOU RECALL WHEN SUCH A CONSTRUCTION WAS INTRODUCED TO THE
MARKET, AND BY WHOM?  A. TO THE BEST OF MY RECOLLECTION IT WAS FOR THE
MODEL YEAR OF 1926, WHICH WOULD MEAN IT WAS PROBABLY INTRODUCED ABOUT
JANUARY OR FEBRUARY OF 1926. 

"Q.  BY WHOM?  A. BY JOHNSON MOTOR COMPANY. 

"Q.  AT THAT TIME WAS EVINRUDE MOTOR COMPANY A COMPETITOR OF JOHNSON
MOTOR COMPANY?  A. YES, THEY WERE. 

"Q.  AT THAT TIME WAS ELTO MOTOR COMPANY A COMPETITOR OF JOHNSON
MOTOR COMPANY?  A. YES. 

"Q.  AT THAT TIME WAS LOCKWOOD-ASH MOTOR COMPANY A COMPETITOR OF
JOHNSON MOTOR COMPANY?  A. YES. 

"Q.  WHAT WAS THE RESULT OF THE INTRODUCTION OF THIS MODEL BY JOHNSON
MOTOR COMPANY IN 1926?  A.  AS FAR AS I WAS CONCERNED, I WAS CONNECTED
WITH THE LOCKWOOD-ASH MOTOR COMPANY THAT WAS MAKING A MOTOR IN 1926 AND
NOT HAVING THAT COMBINATION; AND, NOT HAVING IT, WE DID NOT HAVE THE
SATISFACTORY PERFORMANCE THAT THE JOHNSON COMBINATION HAD. 

"Q.  IN WHAT RESPECT DID YOUR MOTOR NOT HAVE AS SATISFACTORY A
PERFORMANCE?  A. IT HAD CAVITATION. 

"Q.  WHAT DID YOUR MOTOR LACK PARTICULARLY OF THE STRUCTURE SHOWN IN
THIS JOHNSON PATENT?  A. WE DID NOT HAVE AN ANTI-CAVITATION PLATE. 

"Q.  WHAT DID YOU DO TO REMEDY THIS DIFFICULTY?  A. IN THE FALL OF
1926, FOR THE 1927 MODEL YEAR, WE PUT ON AN ANTI-CAVITATION PLATE. 

"Q.  DID THAT REMEDY YOUR DIFFICULTY, SO FAR AS CAVITATION WAS
CONCERNED?  A. YES. 

"Q.  DO YOU KNOW WHAT WAS DONE BY EVINRUDE AND ELTO?  A. MY
RECOLLECTION IS THAT POSSIBLY, NOT AT THE SAME MOMENT, I DOUBT EVINRUDE
DID THE SAME YEAR, PUT ON AN ANTI-CAVITATION PLATE ON THE STREAM LINE
HOUSING.  I DON'T REMEMBER CLEARLY WHETHER ELTO DID IT THAT YEAR OR THE
NEXT, BUT THEY SUBSEQUENTLY DID PUT ON THE SAME COMBINATION." 

IRGENS, CHIEF ENGINEER AND PRODUCTION MANAGER OF THE EVINRUDE
DIVISION, TESTIFIED AS FOLLOWS: 

"Q.  HOW LONG HAS IT BEEN TRUE THAT ALL OF THE LARGER SIZES OF
OUTBOARD MOTORS HAVE BEEN EQUIPPED WITH SMOOTH WALLED LOWER UNIT
HOUSINGS, ANTI-CAVITATION PLATES INTERMEDIATE THE TOP AND BOTTOM
THEREOF, AND INTERNAL WATER PASSAGES?  A. THEY BECAME POPULAR ABOUT
1926, AND FROM THEN ON PRACTICALLY ALL OF THEM HAVE BEEN MADE THAT
WAY." 

FN6  THE BRIEF OF PETITIONERS IN THE CIRCUIT COURT OF APPEALS, WHICH
HAS BEEN CERTIFIED TO THIS COURT BY THE CLERK OF THAT COURT, CONTAINED
THE FOLLOWING STATEMENT UNDER THE HEADING OF ANTICIPATION:  "IN
CONSIDERING THESE CLAIMS IT IS APPROPRIATE TO FIRST HAVE IN MIND THEIR
HISTORICAL BACKGROUND, IN VIEW OF THE IMPORTANCE THAT PLAINTIFFS PLACE
UPON THEM AS BEING FOR SUBJECT MATTER THAT 'SOLVED A PROBLEM'
PREVIOUSLY 'STALLING' A GREAT INDUSTRY.  IN THE FIRST PLACE THE SUBJECT
MATTER OF THESE CLAIMS WAS IN NO WAY CONSIDERED IN OR MADE A PART OF
THE ORIGINAL APPLICATION  ...  IT WAS NOT UNTIL MORE THAN TWO YEARS
LATER THAT THE PATENTEE ON DECEMBER 6, 1928, BY HIS AMENDMENT 'C',
ADDED CLAIMS TO HIS APPLICATION COVERING ANY OF THE MATTER THAT IS NOW
DEEMED TO BE OF SUCH GREAT IMPORTANCE.  THEN, FOR THE FIRST TIME THE
PATENTEE CLAIMED, IN CLAIMS ORIGINALLY NUMBERED 17 TO 25, INCLUSIVE,
THE ANTICAVITATION PLATE APART FROM THE LIMITATIONS WHICH CHARACTERIZED
HIS ORIGINALLY FILED DISCLOSURES AND ORIGINALLY FILED CLAIMS." 

FN7  THEY HAD PREVIOUSLY BEEN SUSTAINED BY A DISTRICT COURT IN THE
SIXTH CIRCUIT.  JOHNSON BROTHERS ENGINEERING CORP. V. CAILLE BROS. CO.,
8 F.SUPP.  198.  CAILLE IS NO LONGER IN THE BUSINESS. 

FN8  THE PERIOD IS NOW ONE YEAR.  ACT OF AUGUST 5, 1939, 53 STAT.
1212, 35 U.S.C. SEC. 31. 

FN9  SEE FOOTNOTE 5, SUPRA.
..END :



















BAKERY DRIVERS LOCAL V. WOHL, 315 U.S. 769 


NO. 901, OCTOBER TERM 1940.  ARGUED JANUARY 13, 1942.  - DECIDED MARCH
30, 1942.  - 284 N.Y. 788, 31 N.E.2D 765, REVERSED. 


1.  MEMBERS OF A LABOR UNION OF DRIVERS, ENGAGED IN THE DISTRIBUTION
OF BAKED GOODS, IN AN ENDEAVOR TO INDUCE PEDDLERS TO WORK BUT SIX DAYS
A WEEK AND TO HIRE AN UNEMPLOYED UNION MEMBER ONE DAY A WEEK,
PEACEFULLY PICKETED BAKERIES FROM WHICH THE PEDDLERS OBTAINED THEIR
GOODS, AND PLACES OF BUSINESS OF THE PEDDLERS' CUSTOMERS, CARRYING
PLACARDS WITH THE PEDDLERS' NAMES AND A TRUE STATEMENT OF THE UNION'S
GRIEVANCES.  HELD, THAT A STATE COURT INJUNCTION AGAINST SUCH PICKETING
WAS AN UNCONSTITUTIONAL INVASION OF THE RIGHT OF FREE SPEECH.  PP. 772,
775. 

2.  THE RIGHT OF FREE SPEECH DOES NOT DEPEND IN SUCH A CASE ON
WHETHER OR NOT A "LABOR DISPUTE," AS DEFINED BY THE STATE STATUTES, IS
INVOLVED.  P. 774. 

BAKERY & PASTRY DRIVERS & HELPERS LOCAL 802 OF THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS ET AL. V. WOHL ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. 

CERTIORARI, 313 U.S. 548, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
SUSTAINING AN INJUNCTION.  A PETITION FOR REHEARING OF THE JUDGMENT OF
REVERSAL, ID., WAS GRANTED, 314 U.S. 701. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS ARE A LABOR UNION AND CERTAIN OF ITS OFFICERS.  THE
UNION MEMBERSHIP CONSISTS OF TRUCK DRIVERS OCCUPIED IN THE DISTRIBUTION
OF BAKED GOODS.  THE RESPONDENTS WOHL AND PLATZMAN ARE, AND FOR SOME
YEARS HAVE BEEN, PEDDLERS OF BAKED GOODS.  THEY BUY FROM BAKERIES AND
SELL AND DELIVER TO SMALL RETAILERS, AND KEEP THE DIFFERENCE BETWEEN
COST AND SELLING PRICE, WHICH IN THE CASE OF WOHL IS APPROXIMATELY
THIRTY-TWO DOLLARS A WEEK, AND IN THE CASE OF PLATZMAN, ABOUT THIRTY
FIVE DOLLARS A WEEK.  OUT OF THIS EACH MUST ABSORB CREDIT LOSSES AND
MAINTAIN A DELIVERY TRUCK WHICH HE OWNS - BUT HAS REGISTERED IN THE
NAME OF HIS WIFE.  BOTH ARE MEN OF FAMILY.  NEITHER HAS ANY EMPLOYEE OR
ASSISTANT.  BOTH WORK SEVEN DAYS A WEEK, WOHL PUTTING IN SOMETHING OVER
THIRTY-THREE HOURS A WEEK, AND PLATZMAN ABOUT SIXTY-FIVE HOURS A WEEK. 
IT WAS FOUND THAT NEITHER HAS ANY CONTRACT WITH THE BAKERIES FROM WHOM
HE BUYS, AND IT DOES NOT APPEAR THAT EITHER HAD A CONTRACT WITH ANY
CUSTOMER. 

THE CONFLICT BETWEEN THE UNION AND THESE PEDDLERS GROWS OUT OF
CERTAIN BACKGROUND FACTS FOUND BY THE TRIAL COURT AND SUMMARIZED HERE. 
THE UNION HAS FOR SOME YEARS BEEN ENGAGED IN OBTAINING COLLECTIVE
BARGAINING AGREEMENTS PRESCRIBING THE WAGES, HOURS, AND WORKING
CONDITIONS OF BAKERY DRIVERS.  FIVE YEARS BEFORE THE TRIAL, THERE WERE
IN NEW YORK CITY COMPARATIVELY FEW PEDDLERS OR SO-CALLED INDEPENDENT
JOBBERS - FIFTY AT MOST, CONSISTING LARGELY OF MEN WHO HAD A LONG
ESTABLISHED RETAIL TRADE.  ABOUT FOUR YEARS BEFORE THE TRIAL, THE
SOCIAL SECURITY AND UNEMPLOYMENT COMPENSATION LAWS, BOTH OF WHICH
IMPOSED TAXES ON PAYROLLS, BECAME EFFECTIVE IN THE STATE OF NEW YORK. 
THEREAFTER, THE NUMBER OF PEDDLERS OF BAKERY PRODUCTS INCREASED FROM
YEAR TO YEAR, UNTIL AT THE TIME OF HEARING THEY NUMBERED MORE THAN FIVE
HUNDRED.  IN THE EIGHTEEN MONTHS PRECEDING THE HEARINGS, BAKING
COMPANIES WHICH OPERATED ROUTES THROUGH EMPLOYED DRIVERS HAD NOTIFIED
THE UNION THAT, AT THE EXPIRATION OF THEIR CONTRACTS, THEY WOULD NO
LONGER EMPLOY DRIVERS, BUT WOULD PERMIT THE DRIVERS TO PURCHASE TRUCKS
FOR NOMINAL AMOUNTS, IN SOME INSTANCES FIFTY DOLLARS, AND THEREUPON TO
CONTINUE TO DISTRIBUTE THEIR BAKED GOODS AS PEDDLERS.  WITHIN SUCH
PERIOD, A HUNDRED AND FIFTY DRIVERS, WHO WERE MEMBERS OF THE UNION AND
HAD PREVIOUSLY WORKED UNDER UNION CONTRACTS AND CONDITIONS, WERE
DISCHARGED AND REQUIRED TO LEAVE THE INDUSTRY UNLESS THEY UNDERTOOK TO
ACT AS PEDDLERS. 

THE PEDDLER SYSTEM HAS SERIOUS DISADVANTAGES TO THE PEDDLER HIMSELF. 
THE COURT HAS FOUND THAT HE IS NOT COVERED BY WORKMEN'S COMPENSATION
INSURANCE, UNEMPLOYMENT INSURANCE, OR BY THE SOCIAL SECURITY SYSTEM OF
THE STATE AND NATION.  HIS TRUCK IS USUALLY UNINSURED AGAINST PUBLIC
LIABILITY AND PROPERTY DAMAGE, AND HENCE COMMONLY CARRIED IN THE NAME
OF HIS WIFE OR OTHER NOMINEE.  IF INJURED WHILE WORKING, HE USUALLY
BECOMES A PUBLIC CHARGE, AND HIS FAMILY MUST BE SUPPORTED BY CHARITY OR
PUBLIC RELIEF. 

THE UNION BECAME ALARMED AT THE AGGRESSIVE INROADS OF THIS KIND OF
COMPETITION UPON THE EMPLOYMENT AND LIVING STANDARDS OF ITS MEMBERS. 
THE TRIAL COURT FOUND THAT IF EMPLOYERS WITH UNION CONTRACTS ARE FORCED
TO ADOPT THE "PEDDLER" SYSTEM, "THE WAGES, HOURS, WORKING CONDITIONS,
SIX-DAY WEEK, ETC., ATTAINED BY THE UNION AFTER LONG YEARS OF STRUGGLE
WILL BE DESTROYED AND LOST."  IN THE SPRING OF 1938, THE UNION MADE AN
EFFORT IN GOOD FAITH TO PERSUADE THE PEDDLERS TO BECOME MEMBERS, AND
THOSE WHO DESIRED WERE ADMITTED TO MEMBERSHIP AND WERE ONLY REQUIRED TO
ABIDE BY THE SAME CONSTITUTION, BY-LAWS, RULES AND REGULATIONS AS WERE
ALL OTHER MEMBERS.  THAT, HOWEVER, INCLUDED A REQUIREMENT THAT NO UNION
MEMBER SHOULD WORK MORE THAN SIX DAYS PER WEEK. 

THESE PARTICULAR PEDDLERS WERE ASKED TO JOIN THE UNION, AND EACH
SIGNED AN APPLICATION, BUT NEITHER JOINED.  THE UNION THEN DETERMINED
TO SEEK AN UNDERSTANDING WITH PEDDLERS WHO FAILED TO JOIN THE UNION
THAT THEY WORK ONLY SIX DAYS A WEEK AND EMPLOY AN UNEMPLOYED UNION
MEMBER ONE DAY IN A WEEK.  THE UNION DID NOT INSIST THAT THE RELIEF MAN
BE PAID BEYOND THE TIME THAT HE ACTUALLY WORKED, BUT ASKED THAT HE BE
PAID ON THE BASIS OF THE UNION'S DAILY WAGE, WHICH FIXED A SCALE FOR
PART OF A DAY IF BUT PART OF A DAY WAS REQUIRED FOR THE SERVICE OF THE
ROUTE.  FOR SOME TEN WEEKS, WOHL EMPLOYED A RELIEF DRIVER, WHO WAS PAID
$6.00 PER DAY, THE NORMAL DAY'S WAGE FOR A FULL DAY BEING $9.00. 

WHEN WOHL AND PLATZMAN FINALLY REFUSED EITHER TO JOIN THE UNION OR TO
EMPLOY A UNION RELIEF MAN, AND CONTINUED TO WORK SEVEN DAYS EACH WEEK,
THE UNION TOOK THE MEASURES WHICH LED TO THIS LITIGATION.  ON THE
TWENTY-THIRD OF JANUARY, 1939, THE UNION CAUSED TWO PICKETS TO WALK IN
THE VICINITY OF THE BAKERY WHICH SOLD PRODUCTS TO WOHL AND PLATZMAN,
EACH PICKET CARRYING A PLACARD, ONE BEARING THE NAME OF WOHL AND THE
OTHER THAT OF PLATZMAN, AND UNDER EACH NAME APPEARED THE FOLLOWING
STATEMENT:  "A BAKERY ROUTE DRIVER WORKS SEVEN DAYS A WEEK.  WE ASK
EMPLOYMENT FOR A UNION RELIEF MAN FOR ONE DAY.  HELP US SPREAD
EMPLOYMENT AND MAINTAIN A UNION WAGE HOUR AND CONDITION.  BAKERY &
PASTRY DRIVERS & HELPERS LOCAL 802, I.B. OF T. AFFILIATED WITH A.F.L." 
THE PICKETING ON THAT DAY LASTED LESS THAN TWO HOURS.  AGAIN, ON THE
TWENTY-FIFTH OF JANUARY, THE UNION CAUSED TWO PICKETS TO DISPLAY THE
SAME PLACARDS IN THE SAME VICINITY FOR LESS THAN AN HOUR; AND ON THE
SAME DAY A PICKET WITH A PLACARD BEARING THE NAME OF WOHL OVER THE SAME
STATEMENT, PICKETED FOR A VERY SHORT TIME IN THE VICINITY OF ANOTHER
BAKERY FROM WHICH WOHL HAD PURCHASED BAKED PRODUCTS.  IT WAS ALSO FOUND
THAT A MEMBER OF THE UNION FOLLOWED PLATZMAN AS HE WAS DISTRIBUTING HIS
PRODUCTS AND CALLED ON TWO OR THREE OF HIS CUSTOMERS, ADVISING THEM
THAT THE UNION WAS SEEKING TO PERSUADE PLATZMAN TO WORK BUT SIX DAYS
PER WEEK AND EMPLOY A UNION DRIVER AS A RELIEF MAN, AND STATING TO ONE
THAT, IN THE EVENT HE CONTINUED TO PURCHASE FROM PLATZMAN, A PICKET
WOULD BE PLACED IN THE VICINITY ON THE FOLLOWING DAY, WITH A PLACARD
READING AS SET FORTH ABOVE.  IT DOES NOT APPEAR THAT THIS THREAT WAS
CARRIED OUT. 

THE TRIAL COURT FOUND THAT THE PLACARDS WERE TRUTHFUL AND ACCURATE IN
ALL RESPECTS; THAT THE PICKETING CONSISTED OF NO MORE THAN TWO PICKETS
AT ANY ONE TIME AND WAS DONE IN A PEACEFUL AND ORDERLY MANNER, WITHOUT
VIOLENCE OR THREAT THEREOF; THAT IT CREATED NO DISORDER; THAT IT WAS
NOT PROVED THAT ANY CUSTOMERS TURNED AWAY FROM SUCH BAKERIES BY REASON
OF THE PICKETING; AND IT WAS NOT ESTABLISHED THAT THE RESPONDENTS
SUSTAINED ANY MONETARY LOSS BY REASON THEREOF. 

THE TRIAL COURT ISSUED INJUNCTIONS WHICH RESTRAINED THE UNION AND ITS
OFFICERS AND AGENTS FROM PICKETING EITHER THE PLACES OF BUSINESS OF
MANUFACTURING BAKERS WHO SELL TO THE RESPONDENTS OR THE PLACES OF
BUSINESS OF THEIR CUSTOMERS.  14 N.Y. SUPP.2D 198.  THE JUDGMENT WAS
AFFIRMED WITHOUT OPINION BY THE APPELLATE DIVISION OF THE FIRST
DEPARTMENT, TWO JUSTICES THEREOF DISSENTING WITH OPINION, 259 APP. DIV.
868, 19 N.Y.S.2D 811; AND WAS AFFIRMED WITHOUT OPINION BY THE COURT OF
APPEALS, 284 N.Y. 788, 31 N. E.2D 765.  THIS COURT DENIED A PETITION
FOR A WRIT OF CERTIORARI BECAUSE IT DID NOT APPEAR THAT THE FEDERAL
QUESTION PRESENTED BY THE PETITION HAD NECESSARILY BEEN DECIDED BY THE
COURT OF APPEALS.  313 U.S. 572.  THE COURT OF APPEALS LATER CERTIFIED
THAT SUCH QUESTION HAD BEEN PASSED UPON, A PETITION FOR REHEARING WAS
GRANTED, THE WRIT OF CERTIORARI GRANTED, AND THE JUDGMENT SUMMARILY
REVERSED.  313 U.S. 548.  WE LATER GRANTED ANOTHER PETITION FOR
REHEARING, 314 U.S. 701, AND HAVE SINCE HEARD ARGUMENT. 

THE CONTROVERSY IN THE TRIAL COURT CENTERED ABOUT THE ISSUE AS TO
WHETHER A LABOR DISPUTE WAS INVOLVED WITHIN THE MEANING OF NEW YORK
STATUTES.  THE TRIAL COURT FOUND ITSELF CONSTRAINED TO HOLD THAT NO
LABOR DISPUTE WAS INVOLVED, AND SEEMED TO BE OF THE IMPRESSION THAT
THEREFORE NO CONSTITUTIONAL RIGHTS WERE INVOLVED.  IT CONCLUDED AS A
MATTER OF LAW THAT THE RESPONDENTS "ARE THE SOLE PERSONS REQUIRED TO
RUN THEIR BUSINESS AND THEREFORE THEY ARE NOT SUBJECT TO PICKETING BY A
UNION OR BY THE DEFENDANTS WHO SEEK TO COMPEL THEM TO EMPLOY UNION
LABOR."  THE TRIAL COURT REFUSED THE PETITIONERS' REQUEST FOR A FINDING
THAT "IT WAS LAWFUL FOR THE DEFENDANTS TO TRUTHFULLY ADVISE THE PUBLIC
OF ITS CAUSE, WHETHER IN THE VICINITY OF THE PLACES OF BUSINESS OF
BAKERS WHO SOLD TO THE PLAINTIFFS, OR OTHERWISE."  LIKEWISE, IT REFUSED
A REQUEST TO FIND "THAT IT WAS A CONSTITUTIONAL RIGHT OF THE DEFENDANTS
TO ADVISE THE PUBLIC, ACCURATELY AND TRUTHFULLY AND WITHOUT VIOLENCE OR
BREACH OF THE PEACE, THAT DEFENDANTS WORKED SEVEN DAYS A WEEK, AND THAT
THE DEFENDANTS WERE SEEKING TO SECURE EMPLOYMENT FROM THE PLAINTIFFS
FOR UNEMPLOYED MEMBERS OF THE UNION, ONE DAY A WEEK." 

SO FAR AS WE CAN ASCERTAIN FROM THE OPINIONS DELIVERED BY THE STATE
COURTS IN THIS CASE, THOSE COURTS WERE CONCERNED ONLY WITH THE QUESTION
WHETHER THERE WAS INVOLVED A LABOR DISPUTE WITHIN THE MEANING OF THE
NEW YORK STATUTES, AND ASSUMED THAT THE LEGALITY OF THE INJUNCTION
FOLLOWED FROM A DETERMINATION THAT SUCH A DISPUTE WAS NOT INVOLVED.  OF
COURSE THAT DOES NOT FOLLOW:  ONE NEED NOT BE IN A "LABOR DISPUTE" AS
DEFINED BY STATE LAW TO HAVE A RIGHT UNDER THE FOURTEENTH AMENDMENT TO
EXPRESS A GRIEVANCE IN A LABOR MATTER BY PUBLICATION UNATTENDED BY
VIOLENCE, COERCION, OR CONDUCT OTHERWISE UNLAWFUL OR OPPRESSIVE. 

THE RESPONDENTS SAY THAT THE BASIS OF THE DECISION BELOW WAS REVEALED
IN A SUBSEQUENT OPINION OF THE COURT OF APPEALS, WHERE IT WAS SAID WITH
REGARD TO THE PRESENT CASE THAT "WE HELD THAT IT WAS AN UNLAWFUL LABOR
OBJECTIVE TO ATTEMPT TO COERCE A PEDDLER EMPLOYING NO EMPLOYEES IN HIS
BUSINESS AND MAKING APPROXIMATELY THIRTY-TWO DOLLARS A WEEK, TO HIRE AN
EMPLOYEE AT NINE DOLLARS A DAY FOR ONE DAY A WEEK."  OPERA-ON-TOUR V.
WEBER, 285 N.Y. 348, 357, 34 N.E.2D 349, CERTIORARI DENIED, 314 U.S.
615.  BUT THIS LACKS THE DELIBERATENESS AND FORMALITY OF A
CERTIFICATION,  FN1  AND WAS UTTERED IN A CASE WHERE THE QUESTION OF
THE EXISTENCE OF A RIGHT TO FREE SPEECH UNDER THE FOURTEENTH AMENDMENT
WAS NEITHER RAISED NOR CONSIDERED. 

WE OURSELVES CAN PERCEIVE NO SUBSTANTIVE EVIL OF SUCH MAGNITUDE AS TO
MARK A LIMIT TO THE RIGHT OF FREE SPEECH WHICH THE PETITIONERS SOUGHT
TO EXERCISE.  THE RECORD IN THIS CASE DOES NOT CONTAIN THE SLIGHTEST
SUGGESTION OF EMBARRASSMENT IN THE TASK OF GOVERNANCE; THERE ARE NO
FINDINGS AND NO CIRCUMSTANCES FROM WHICH WE CAN DRAW THE INFERENCE THAT
THE PUBLICATION WAS ATTENDED OR LIKELY TO BE ATTENDED BY VIOLENCE,
FORCE OR COERCION, OR CONDUCT OTHERWISE UNLAWFUL OR OPPRESSIVE; AND IT
IS NOT INDICATED THAT THERE WAS AN ACTUAL OR THREATENED ABUSE OF THE
RIGHT TO FREE SPEECH THROUGH THE USE OF EXCESSIVE PICKETING.  A STATE
IS NOT REQUIRED TO TOLERATE IN ALL PLACES AND ALL CIRCUMSTANCES EVEN
PEACEFUL PICKETING BY AN INDIVIDUAL.  BUT SO FAR AS WE CAN TELL,
RESPONDENTS' MOBILITY AND THEIR INSULATION FROM THE PUBLIC AS MIDDLEMEN
MADE IT PRACTICALLY IMPOSSIBLE FOR PETITIONERS TO MAKE KNOWN THEIR
LEGITIMATE GRIEVANCES TO THE PUBLIC WHOSE PATRONAGE WAS SUSTAINING THE
PEDDLER SYSTEM EXCEPT BY THE MEANS HERE EMPLOYED AND CONTEMPLATED; AND
THOSE MEANS ARE SUCH AS TO HAVE SLIGHT, IF ANY, REPERCUSSIONS UPON THE
INTERESTS OF STRANGERS TO THE ISSUE. 

THE DECISION OF THE COURT OF APPEALS MUST ACCORDINGLY REVERSED. 

FN1  COMPARE EX PARTE TEXAS, 315 U.S. 8. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, CONCURRING: 

IF THE OPINION IN THIS CASE MEANS THAT A STATE CAN PROHIBIT PICKETING
WHEN IT IS EFFECTIVE BUT MAY NOT PROHIBIT IT WHEN IT IS INEFFECTIVE,
THEN I THINK WE HAVE MADE A BASIC DEPARTURE FROM THORNHILL V. ALABAMA,
310 U.S. 88.  WE HELD IN THAT CASE THAT "THE DISSEMINATION OF
INFORMATION CONCERNING THE FACTS OF A LABOR DISPUTE MUST BE REGARDED AS
WITHIN THAT AREA OF FREE DISCUSSION THAT IS GUARANTEED BY THE
CONSTITUTION."  P. 102.  WHILE WE RECOGNIZED THAT PICKETING COULD BE
REGULATED, WE STATED (P. 104-105):  "ABRIDGMENT OF THE LIBERTY OF SUCH
DISCUSSION CAN BE JUSTIFIED ONLY WHERE THE CLEAR DANGER OF SUBSTANTIVE
EVILS ARISES UNDER CIRCUMSTANCES AFFORDING NO OPPORTUNITY TO TEST THE
MERITS OF IDEAS BY COMPETITION FOR ACCEPTANCE IN THE MARKET OF PUBLIC
OPINION."  AND WE ADDED (P. 105):  "BUT NO CLEAR AND PRESENT DANGER OF
DESTRUCTION OF LIFE OR PROPERTY, OR INVASION OF THE RIGHT OF PRIVACY,
OR BREACH OF THE PEACE CAN BE THOUGHT TO BE INHERENT IN THE ACTIVITIES
OF EVERY PERSON WHO APPROACHES THE PREMISES OF AN EMPLOYER AND
PUBLICIZES THE FACTS OF A LABOR DISPUTE INVOLVING THE LATTER."  FOR
THAT REASON WE INVOKED THE TEST, EMPLOYED IN COMPARABLE SITUATIONS
(CANTWELL V. CONNECTICUT, 310 U.S. 296, 307; BRIDGES V. CALIFORNIA, 314
U.S. 252) THAT THE STATUTE WHICH IS THE SOURCE OF THE RESTRICTION ON
FREE SPEECH MUST BE "NARROWLY DRAWN TO COVER THE PRECISE SITUATION
GIVING RISE TO THE DANGER."  P. 105.    WE RECOGNIZED THAT PICKETING
MIGHT HAVE A COERCIVE EFFECT:  "IT MAY BE THAT EFFECTIVE EXERCISE OF
THE MEANS OF ADVANCING PUBLIC KNOWLEDGE MAY PERSUADE SOME OF THOSE
REACHED TO REFRAIN FROM ENTERING INTO ADVANTAGEOUS RELATIONS WITH THE
BUSINESS ESTABLISHMENT WHICH IS THE SCENE OF THE DISPUTE.  EVERY
EXPRESSION OF OPINION ON MATTERS THAT ARE IMPORTANT HAS THE
POTENTIALITY OF INDUCING ACTION IN THE INTERESTS OF ONE RATHER THAN
ANOTHER GROUP IN SOCIETY."  P. 104.    PICKETING BY AN ORGANIZED GROUP
IS MORE THAN FREE SPEECH, SINCE IT INVOLVES PATROL OF A PARTICULAR
LOCALITY AND SINCE THE VERY PRESENCE OF A PICKET LINE MAY INDUCE ACTION
OF ONE KIND OR ANOTHER, QUITE IRRESPECTIVE OF THE NATURE OF THE IDEAS
WHICH ARE BEING DISSEMINATED.  HENCE THOSE ASPECTS OF PICKETING MAKE IT
THE SUBJECT OF RESTRICTIVE REGULATION. 

BUT SINCE "DISSEMINATION OF INFORMATION CONCERNING THE FACTS OF A
LABOR DISPUTE" IS CONSTITUTIONALLY PROTECTED, A STATE IS NOT FREE TO
DEFINE "LABOR DISPUTE" SO NARROWLY AS TO ACCOMPLISH INDIRECTLY WHAT IT
MAY NOT ACCOMPLISH DIRECTLY.  THAT SEEMS TO ME TO BE WHAT NEW YORK HAS
DONE HERE.  ITS STATUTE (CIVIL PRACTICE ACT, SEC. 876A), AS CONSTRUED
AND APPLIED, IN EFFECT ELIMINATES COMMUNICATION OF IDEAS THROUGH
PEACEFUL PICKETING IN CONNECTION WITH A LABOR CONTROVERSY ARISING OUT
OF THE BUSINESS OF A CERTAIN CLASS OF RETAIL BAKERS.  BUT THE STATUTE
IS NOT A REGULATION OF PICKETING PER SE - NARROWLY DRAWN, OF GENERAL
APPLICATION, AND REGULATING THE USE OF THE STREETS BY ALL PICKETEERS. 
IN SUBSTANCE IT MERELY SETS APART A PARTICULAR ENTERPRISE AND FREES IT
FROM ALL PICKETING.  IF THE PRINCIPLES OF THE THORNHILL CASE ARE TO
SURVIVE, I DO NOT SEE HOW NEW YORK CAN BE ALLOWED TO DRAW THAT LINE. 

MR. JUSTICE BLACK AND MR. JUSTICE MURPHY JOIN IN THIS OPINION. 
..END :




POWER COMM'N V. PIPELINE CO., 315 U.S. 575 


NO. 265.  ARGUED FEBRUARY 10, 11, 1942.  - DECIDED MARCH 16, 1942.  -
120 F.2D 625, REVERSED. 


1.  PROVISIONS OF THE NATURAL GAS ACT OF 1938, FOR REGULATING THE
PRICES AT WHICH NATURAL GAS ORIGINATING IN ONE STATE AND TRANSPORTED TO
ANOTHER SHALL BE SOLD TO DISTRIBUTORS AT WHOLESALE, HELD CONSISTENT
WITH THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, AND WITHIN THE
COMMERCE POWER.  P. 582. 

2.  UNDER SECS. 5(A) AND 16 OF THE NATURAL GAS ACT OF 1938, THE
FEDERAL POWER COMMISSION, WHEN UPON DUE HEARING IT HAS FOUND THE
EXISTING RATES OF AN INTERSTATE GAS PIPELINE COMPANY TO BE UNJUST AND
UNREASONABLE, MAY MAKE AN INTERIM ORDER REQUIRING THE UTILITY TO FILE A
NEW SCHEDULE OF RATES WHICH SHALL EFFECT A PRESCRIBED DECREASE IN
OPERATING REVENUES.  P. 583. 

3.  THE NATURAL GAS ACT OF 1938 COMMANDS THAT THE RATES OF NATURAL
GAS COMPANIES SUBJECT TO IT SHALL BE JUST AND REASONABLE; DECLARES THAT
RATES WHICH ARE NOT JUST AND REASONABLE ARE UNLAWFUL; PROVIDES THAT THE
FEDERAL POWER COMMISSION SHALL DETERMINE THE JUST AND REASONABLE RATE
TO BE OBSERVED AND FIX THE SAME BY ORDER AND THAT THE COMMISSION MAY
ORDER A DECREASE WHERE EXISTING RATES ARE UNJUST, UNLAWFUL, OR ARE NOT
THE "LOWEST REASONABLE RATES."  SECS. 4(A) AND 5(A).  ON REVIEW OF THE
COMMISSION'S ORDERS BY A CIRCUIT COURT OF APPEALS, AS AUTHORIZED BY
SEC. 19(B), THE COMMISSION'S FINDINGS OF FACT, IF SUPPORTED BY
SUBSTANTIAL EVIDENCE, "SHALL BE CONCLUSIVE."  HELD: 

(1)  "LOWEST REASONABLE RATE" IS THE LOWEST RATE WHICH MAY BE FIXED
WITHOUT BEING CONFISCATORY IN THE CONSTITUTIONAL SENSE.  P. 585. 

(2)  THE CONGRESSIONAL STANDARD PRESCRIBED BY THIS STATUTE COINCIDES
WITH THAT OF THE CONSTITUTION; AND THE COURTS ARE WITHOUT AUTHORITY
UNDER THE STATUTE TO SET ASIDE AS TOO LOW ANY "REASONABLE RATE" ADOPTED
BY THE COMMISSION WHICH IS CONSISTENT WITH CONSTITUTIONAL
REQUIREMENTS.  P. 586. 

4.  RATE-MAKING BODIES ARE NOT REQUIRED BY THE CONSTITUTION TO FOLLOW
ANY SINGLE FORMULA OR COMBINATION OF FORMULAS.  ONCE A FULL HEARING HAS
BEEN GIVEN, PROPER FINDINGS MADE AND THE STATUTORY REQUIREMENTS
SATISFIED, THE COURTS CANNOT INTERVENE IN THE ABSENCE OF A CLEAR
SHOWING THAT THE LIMITS OF DUE PROCESS HAVE BEEN OVERSTEPPED.  IF THE
COMMISSION'S ORDER, AS APPLIED AND VIEWED IN ITS ENTIRETY, PRODUCES NO
ARBITRARY RESULT, THE COURT'S INQUIRY IS AT AN END.  P. 586. 

5.  THERE IS NO CONSTITUTIONAL REQUIREMENT THAT GOING-CONCERN VALUE,
EVEN WHEN IT IS AN APPROPRIATE ELEMENT TO BE INCLUDED IN A RATE BASE,
MUST BE SEPARATELY STATED AND APPRAISED AS SUCH.  PP. 586-589. 

6.  WHERE A VALUATION FOR RATE PURPOSES IS OF THE BUSINESS AS A WHOLE
WITHOUT SEPARATE APPRAISAL OF THE GOING-CONCERN ELEMENT, THE BURDEN
RESTS ON THE REGULATED UTILITY TO SHOW THAT THIS ITEM HAS NOT BEEN
INCLUDED IN THE RATE BASE, AND THAT IT WAS NOT RECOUPED FROM PRIOR
EARNINGS OF THE BUSINESS.  P. 589. 

7.  THE PROPERTY OF A UTILITY IS NOT CONFISCATED BY DENIAL OF THE
PRIVILEGE OF CAPITALIZING THE MAINTENANCE COST OF EXCESS PLANT CAPACITY
DURING A PERIOD BEFORE THE RATES WERE REGULATED, WHICH WOULD ALLOW IT
TO EARN A RETURN AND AMORTIZATION ALLOWANCE UPON SUCH COSTS DURING THE
ENTIRE SUBSEQUENT LIFE OF THE BUSINESS.  P. 590. 

8.  REGULATION DOES NOT INSURE THAT THE BUSINESS SHALL PRODUCE NET
REVENUES, NOR DOES THE CONSTITUTION REQUIRE THAT THE LOSSES OF THE
BUSINESS IN ONE YEAR SHALL BE RESTORED FROM FUTURE EARNINGS BY THE
DEVICE OF CAPITALIZING THE LOSSES AND ADDING THEM TO THE RATE BASE ON
WHICH A FAIR RETURN AND DEPRECIATION ALLOWANCE ARE TO BE EARNED.  P.
590. 

9.  DENIAL OF THE RIGHT TO EARN FOR THE FUTURE A "FAIR RETURN" AND
AMORTIZATION ON THE COSTS OF MAINTAINING INITIAL EXCESS CAPACITY, AND
OF ADVERTISING AND ACQUIRING NEW BUSINESS, WHICH THEY FAILED TO SHOW
HAD NOT BEEN RECOUPED FROM EARNINGS, DID NOT DEPRIVE THE UTILITIES
CONCERNED IN THIS CASE OF THEIR PROPERTY.  P. 590. 

10.  WHERE THE BUSINESS THE RATES OF WHICH ARE REGULATED COULD EXIST
FOR ONLY A LIMITED PERIOD, AN AMORTIZATION BASE COMPUTED AT COST AND
INCLUDING PROPERTY ALREADY RETIRED, THE ALLOWANCES ON WHICH WOULD
RESTORE THE UNDEPRECIATED CAPITAL INVESTMENT, LESS SALVAGE, AT THE END
OF THAT PERIOD, INVOLVED NO DEPRIVATION OF PROPERTY, EVEN THOUGH DURING
THE PERIOD THE COST OF REPRODUCING THE PROPERTY MIGHT BE MORE THAN ITS
ACTUAL COST.  THE CONSTITUTION DOES NOT REQUIRE THAT THE OWNER WHO
EMBARKS IN A WASTING-ASSET BUSINESS OF LIMITED LIFE SHALL RECEIVE AT
THE END MORE THAN HE HAS PUT INTO IT.  P. 592. 

11.  IN THE CASE OF A WASTING BUSINESS THE RATES OF WHICH WERE FIRST
REGULATED AFTER IT HAD OPERATED FOR A NUMBER OF YEARS, HELD PROPER, AND
CONSISTENT WITH DUE PROCESS, IN DETERMINING ITS FAIR RETURN, TO ADOPT
AS THE AMORTIZATION PERIOD THE ENTIRE ESTIMATED LIFE OF THE BUSINESS,
INCLUDING THE PERIOD OF EARLIER OPERATION, AND TO REQUIRE THAT THERE BE
CREDITED IN THE AMORTIZATION ACCOUNT SO MUCH OF THE EARNINGS OF THAT
PERIOD AS WOULD BE APPROPRIATELY ALLOCABLE TO IT.  P. 592. 

12.  A PROVISION FOR ANNUAL AMORTIZATION ALLOWANCES WHICH, IF
ACCUMULATED AT A 6 1/2% COMPOUND INTEREST RATE DURING THE ESTIMATED
LIFE OF THE BUSINESS, WILL BE SUFFICIENT TO RESTORE THE TOTAL
INVESTMENT LESS SALVAGE, AND WHICH LEAVES THE ALLOWANCES IN THE
BUSINESS AS A SINKING FUND RESERVE BUT PERMITS THE UTILITY TO EARN EACH
YEAR IN ADDITION TO THE ALLOWANCE, 6 1/2% ON BOTH THE AMORTIZED AND
UNAMORTIZED PORTIONS OF THE RATE BASE - HELD NOT OBJECTIONABLE UPON THE
GROUND THAT THE RATE OF INTEREST USED SHOULD HAVE BEEN LOWER -
COMPARABLE TO THAT OBTAINABLE IF THE ALLOWANCES WERE TO BE INVESTED IN
SECURITIES IN A SEPARATE SINKING FUND - OR UPON THE GROUND THAT THE
ARRANGEMENT ADOPTED SUBJECTS THE UTILITY TO GREATER BUSINESS RISKS.  P.
595. 

13.  THE FEDERAL POWER COMMISSION'S FINDING THAT 6 1/2% IS A FAIR
ANNUAL RATE OF RETURN UPON THE RATE BASE ALLOWED IN THIS CASE IS
SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 596. 

14.  THE QUESTION OF PROPER DISPOSITION OF THE EXCESS CHARGES
IMPOUNDED UNDER A STAY ORDER OF THE COURT BELOW IS NOT PRESENTED FOR
DETERMINATION UPON THE RECORD BEFORE THIS COURT.  P. 598. 

FEDERAL POWER COMMISSION ET AL. V. NATURAL GAS PIPELINE CO. ET AL.* 

*TOGETHER WITH NO. 268, NATURAL GAS PIPELINE CO. ET AL. V. FEDERAL
POWER COMMISSION ET AL., ALSO ON WRIT OF CERTIORARI, 314 U.S. 593, TO
THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 314 U.S. 593, TO REVIEW A JUDGMENT VACATING AN ORDER OF
THE FEDERAL POWER COMMISSION, ON A PETITION TO REVIEW, UNDER SEC. 19(B)
OF THE NATURAL GAS ACT OF 1938. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A RATE CASE INVOLVING NUMEROUS QUESTIONS WHICH ARISE OUT OF
THE FEDERAL POWER COMMISSION'S REGULATION, UNDER SECS. 5(A) AND 13 OF
THE NATURAL GAS ACT OF 1938, 52 STAT. 821, 15 U.S.C. SEC. 717, OF THE
RATES TO BE CHARGED FOR THE SALE OF NATURAL GAS BY CROSS-PETITIONERS,
NATURAL GAS PIPELINE COMPANY OF AMERICA AND TEXOMA NATURAL GAS
COMPANY. 

THE TWO COMPANIES ARE ENGAGED IN BUSINESS AS A SINGLE ENTERPRISE. 
THEY PRODUCE NATURAL GAS FROM THEIR OWN RESERVES IN THE PANHANDLE GAS
FIELDS IN TEXAS, AND PURCHASE GAS PRODUCED THERE BY OTHERS.  THEY
TRANSPORT THE GAS BY THEIR OWN PIPELINE IN INTERSTATE COMMERCE TO
ILLINOIS, WHERE THEY SELL THE BULK OF IT AT WHOLESALE TO UTILITIES,
WHICH DISTRIBUTE AND SELL IT FOR DOMESTIC, COMMERCIAL AND INDUSTRIAL
USES. 

THE COMPANIES BEGAN OPERATIONS IN 1932 WITH A CAPITAL STRUCTURE OF
$60,000,000 OF SIX PER CENT BONDS, LATER INCREASED BY $999,000, AND
$3,500,000 OF COMMON STOCK, OF WHICH $500,000 IS STOCK OF THE TEXOMA
COMPANY, A NONPROFIT CORPORATION PAYING NO DIVIDENDS ON ITS STOCK. 
DURING THE FIRST SEVEN YEARS OF OPERATION, BEGINNING JANUARY 1, 1932,
AND EXTENDING THROUGH 1938, THE COMPANIES CHARGED AGAINST GROSS INCOME
VARIOUS DEPRECIATION AND DEPLETION DEDUCTIONS AGGREGATING $13,077,488,
FN1  AND IN ADDITION CHARGED $6,481,322 FOR "RETIREMENTS" OF PROPERTY. 
IN THAT PERIOD THEY PAID DIVIDENDS AMOUNTING IN ALL TO $9,150,000. 
ALTHOUGH THERE WERE BOOK DEFICITS IN EARNINGS FOR THE FIRST TWO YEARS,
THE TOTAL "NET PROFIT" AVAILABLE FOR DIVIDENDS AND SURPLUS AFTER
PAYMENT OF INTEREST ON THE BONDS WAS $8,224,436,  FN2  OR AN ANNUAL
AVERAGE OF $1,174,919, WHICH IS 33.6% PER ANNUM ON THE $3,500,000
STOCK.  THE EARNINGS AVAILABLE DURING THE PERIOD FOR RETURN ON THE
CAPITAL INVESTMENT OF BOTH STOCKHOLDERS AND BONDHOLDERS - AFTER TAKING
OUT OF INCOME $19,558,810 FOR DEPRECIATION, DEPLETION AND RETIREMENTS -
TOTALLED $34,040,883; THIS MAKES AN AVERAGE OF $4,862,983 ANNUALLY,
WHICH IS ABOUT 8% ON THE BOOK FIGURES FOR INVESTMENT UNDEPRECIATED, OR
8.8% AFTER DEDUCTING FROM INVESTMENT THE AVERAGE DEPRECIATION AND
DEPLETION RESERVES ACTUALLY CHARGED TO EARNINGS BY THE COMPANIES.  FN3
AT THE TIME OF THE HEARING, OVER ONE-FOURTH OF THE BONDS ISSUED HAD
BEEN RETIRED OUT OF EARNINGS. 

ON COMPLAINT OF THE ILLINOIS COMMERCE COMMISSION, AND ON ITS OWN
MOTION, THE POWER COMMISSION BEGAN SEPARATE INVESTIGATIONS OF THE
COMPANIES' RATES.  THESE PROCEEDINGS WERE CONSOLIDATED AND AFTER
EXTENSIVE HEARINGS THE COMMISSION, FOR THE PURPOSE OF ISSUING AN
INTERIM ORDER, ACCEPTED THE COMPANIES' STATEMENT THAT THE BOOK COST OF
THEIR PROPERTY EXISTING AT THE END OF 1938 WAS $60,172,843, INCLUDING
WORKING CAPITAL OF $975,000.  LIKEWISE FOR THE PURPOSE OF THE ORDER, IT
ACCEPTED THE COMPANIES' ESTIMATE THAT THE VALUE OF ALL PHYSICAL
PROPERTY - CALCULATED AT REPRODUCTION COST NEW (EXCEPT FOR GAS RESERVES
TAKEN ON THE COMPANIES' STATEMENT TO HAVE A PRESENT VALUE OF
$13,334,775) - WAS $74,420,424, WHICH THE COMMISSION ADOPTED AS THE
RATE BASE.  IT TOOK THE COMPANIES' OWN ESTIMATE OF TWENTY-THREE YEARS
ENDING IN 1954 AS THE LIFE OF THE BUSINESS, AND FOR THE AMORTIZATION
BASE USED THEIR COST FIGURE OF $78,284,009 FOR THE TOTAL PAST AND
ESTIMATED FUTURE INVESTMENT AFTER DEDUCTION OF ESTIMATED SALVAGE.  IT
CALCULATED THE "ANNUAL AMORTIZATION EXPENSE" ON THAT AMOUNT FOR THE
TWENTY-THREE YEAR PERIOD, AT A 6 1/2% SINKING FUND INTEREST RATE, AS
$1,557,852, WHICH IT ALLOWED. 

THE COMMISSION ALSO ACCEPTED, FOR THE PURPOSE OF ITS INTERIM ORDER,
THE COMPANIES' ESTIMATE OF PROSPECTIVE INCOME AVAILABLE FOR
AMORTIZATION AND RETURN FOR THE PERIOD 1939 TO 1942 INCLUSIVE, AS
AVERAGING $9,511,454 PER ANNUM.  BUT MAKING ALLOWANCE FOR HIGHER INCOME
TAX RATES UNDER THE REVENUE ACT OF 1940, IT FOUND THAT THE INCOME
AVAILABLE FOR AMORTIZATION AND RETURN WOULD BE DECREASED TO
$9,362,032.  IT CONCLUDED THAT THE COMPANIES' ESTIMATE OF RETURN, LESS
THE AMORTIZATION ALLOWANCE, ($9,362,032 LESS $1,557,852),  - OR
$7,804,180 - EXCEEDED THE FAIR RETURN, $4,837,328(WHICH IS 6 1/2% OF
THE RATE BASE OF $74,420,424), BY $2,966,852, WHICH AMOUNT WAS
AVAILABLE FOR REDUCTION OF NET REVENUES.  TAKING INTO ACCOUNT THE
DECREASE OF $783,909 IN FEDERAL INCOME TAXES WHICH WOULD RESULT FROM
SUCH A DECLINE IN REVENUES, THE COMMISSION DECIDED THERE WAS A TOTAL OF
$3,750,000 ANNUALLY AVAILABLE FOR REDUCTION OF RATES.  IT FOUND THE
EXISTING RATES WERE "UNJUST, UNREASONABLE AND EXCESSIVE," AND MADE ITS
INTERIM ORDER DIRECTING THE COMPANIES TO FILE A NEW SCHEDULE OF RATES
AND CHARGES EFFECTIVE AFTER SEPTEMBER 1, 1940, WHICH WOULD BRING ABOUT
AN ANNUAL REDUCTION OF $3,750,000 IN OPERATING REVENUES.  THE ORDER
ALSO PROVIDED THAT THE RECORD SHOULD "REMAIN OPEN" FOR SUCH FURTHER
PROCEEDINGS AS THE COMMISSION MAY DEEM NECESSARY OR DESIRABLE. 

ON THE COMPANIES' PETITION FOR REVIEW OF THE ORDER PURSUANT TO SEC.
19(B) OF THE ACT, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT, 120
F.2D 625, UPHELD THE VALIDITY OF THE RATE REGULATION PROVISIONS OF THE
ACT, AND THE COMMISSION'S AUTHORITY UNDER THE STATUTE TO ISSUE THE
INTERIM ORDER DIRECTING REDUCTION OF THE RATES AND REQUIRING
RESPONDENTS TO FILE NEW SCHEDULES REFLECTING THAT REDUCTION.  BUT THE
COURT VACATED THE COMMISSION'S ORDER ON THE SOLE GROUNDS THAT "GOING
CONCERN VALUE" TO THE EXTENT OF $8,500,000 SHOULD HAVE BEEN INCLUDED IN
THE RATE BASE, AND THAT THE AMORTIZATION PERIOD FOR THE ENTIRE
PROPERTY, INSTEAD OF THE FULL TWENTY-THREE YEAR ESTIMATED LIFE OF THE
BUSINESS TAKEN BY THE COMMISSION, SHOULD HAVE BEEN DATED FROM THE
PASSAGE OF THE ACT OR THE TIME OF THE COMMISSION'S ORDER. 

WE GRANTED CERTIORARI, 314 U.S. 593, BECAUSE OF THE NOVELTY AND
IMPORTANCE OF THE QUESTIONS PRESENTED UPON THE COMMISSION'S PETITION
CHALLENGING THE GROUNDS OF REVERSAL BELOW, AND ON THE COMPANIES' CROSS
PETITION ASSAILING THE CONSTITUTIONALITY OF THE ACT, THE AUTHORITY OF
THE COMMISSION TO MAKE THE INTERIM ORDER, THE PRESCRIBED 6 1/2% RETURN,
THE COMPUTATION OF THE AMORTIZATION ALLOWANCE ON THE SAME RATE OF
INTEREST AS THE FAIR RATE OF RETURN, AND OTHER FEATURES OF THE
COMMISSION'S ORDER PRESENTLY TO BE DISCUSSED. 

THE NATURAL GAS ACT DECLARES THAT "THE BUSINESS OF TRANSPORTING AND
SELLING NATURAL GAS FOR ULTIMATE DISTRIBUTION TO THE PUBLIC IS AFFECTED
WITH A PUBLIC INTEREST," AND THAT FEDERAL REGULATION OF INTERSTATE
COMMERCE IN NATURAL GAS "IS NECESSARY IN THE PUBLIC INTEREST."  SEC.
1(A).  THE ACT DIRECTS THAT ALL RATES AND CHARGES IN CONNECTION WITH
THE TRANSPORTATION OR SALE OF NATURAL GAS, SUBJECT TO THE JURISDICTION
OF THE COMMISSION, SHALL BE "JUST AND REASONABLE" AND DECLARES TO BE
UNLAWFUL ANY RATE OR CHARGE WHICH IS NOT JUST AND REASONABLE.  SEC.
4(A).  BY SEC. 5 THE COMMISSION, ON ITS OWN MOTION OR THE COMPLAINT OF
A STATE, MUNICIPALITY, STATE COMMISSION OR GAS DISTRIBUTING COMPANY, IS
EMPOWERED TO INVESTIGATE THE RATES CHARGED BY ANY NATURAL GAS COMPANY
IN CONNECTION WITH ANY TRANSPORTATION OR SALE OF ANY NATURAL GAS
SUBJECT TO THE JURISDICTION OF THE COMMISSION, AND AFTER A HEARING TO
DETERMINE JUST AND REASONABLE RATES. 

CONSTITUTIONALITY OF THE ACT.  THE ARGUMENT THAT THE PROVISIONS OF
THE STATUTE APPLIED IN THIS CASE ARE UNCONSTITUTIONAL ON THEIR FACE IS
WITHOUT MERIT.  THE SALE OF NATURAL GAS ORIGINATING IN ONE STATE AND
ITS TRANSPORTATION AND DELIVERY TO DISTRIBUTORS IN ANY OTHER STATE
CONSTITUTES INTERSTATE COMMERCE, WHICH IS SUBJECT TO REGULATION BY
CONGRESS.  ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC SERVICE
CO., 314 U.S. 498.  IT IS NO OBJECTION TO THE EXERCISE OF THE POWER OF
CONGRESS THAT IT IS ATTENDED BY THE SAME INCIDENTS WHICH ATTEND THE
EXERCISE OF THE POLICE POWER OF A STATE.  THE AUTHORITY OF CONGRESS TO
REGULATE THE PRICES OF COMMODITIES IN INTERSTATE COMMERCE IS AT LEAST
AS GREAT UNDER THE FIFTH AMENDMENT AS IS THAT OF THE STATES UNDER THE
FOURTEENTH TO REGULATE THE PRICES OF COMMODITIES IN INTRASTATE
COMMERCE.  COMPARE UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S.
144; UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533, 569; SUNSHINE
COAL CO. V. ADKINS, 310 U.S. 381, 393-97; UNITED STATES V. DARBY, 312
U.S. 100, WITH NEBBIA V. NEW YORK, 291 U.S. 502; OLSEN V. NEBRASKA, 313
U.S. 236. 

THE PRICE OF GAS DISTRIBUTED THROUGH PIPELINES FOR PUBLIC CONSUMPTION
HAS BEEN TOO LONG AND CONSISTENTLY RECOGNIZED AS A PROPER SUBJECT OF
REGULATION UNDER THE FOURTEENTH AMENDMENT TO ADMIT OF DOUBTS CONCERNING
THE PROPRIETY OF LIKE REGULATIONS UNDER THE FIFTH.  WILLCOX V.
CONSOLIDATED GAS CO., 212 U.S. 19; CEDAR RAPIDS GAS CO. V. CEDAR
RAPIDS, 223 U.S. 655; RAILROAD COMMISSION V. PACIFIC GAS CO., 302 U.S.
388.  AND THE FACT THAT THE DISTRIBUTION HERE INVOLVED IS BY WHOLESALE
RATHER THAN RETAIL SALES PRESENTS NO DIFFERENCES OF SIGNIFICANCE TO THE
PROTECTION OF THE PUBLIC INTEREST WHICH IS THE OBJECT OF PRICE
REGULATION.  CF. ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC
SERVICE CO., SUPRA.  THE BUSINESS OF CROSS-PETITIONERS IS NOT ANY THE
LESS SUBJECT TO REGULATION NOW BECAUSE THE GOVERNMENT HAS NOT SEEN FIT
TO REGULATE IT IN THE PAST.  CF. NEBBIA V. NEW YORK, SUPRA, 538-39. 

VALIDITY OF THE INTERIM ORDER.  THE COMPANIES CONTEND THAT THE
FEDERAL POWER COMMISSION HAS NO AUTHORITY UNDER THE ACT TO ENTER THE
TYPE OF ORDER NOW UNDER REVIEW, AND THAT THE ORDER IS INVALID BECAUSE
THE COMMISSION DID NOT ITSELF FIX REASONABLE RATES AS REQUIRED BY THE
ACT BUT INSTEAD MERELY DIRECTED THE COMPANIES TO FILE A NEW RATE
SCHEDULE WHICH WOULD RESULT IN THE PRESCRIBED REDUCTION IN OPERATING
REVENUES.  SECTION 5(A) OF THE ACT PROVIDES:  "WHENEVER THE COMMISSION,
AFTER A HEARING  ...  , SHALL FIND THAT ANY RATE  ...  IS INJUST,
UNREASONABLE, UNDULY DISCRIMINATORY, OR PREFERENTIAL, THE COMMISSION
SHALL DETERMINE THE JUST AND REASONABLE RATE  ... AND SHALL FIX THE
SAME BY ORDER."  IT ALSO CONTAINS A PROVISO THAT THE COMMISSION SHALL
NOT HAVE POWER TO ORDER AN INCREASE OF RATES ON FILE UNLESS IN
ACCORDANCE WITH A NEW SCHEDULE FILED BY THE COMPANY.  BUT WITHOUT
MENTION OF NEW RATE SCHEDULES THE PROVISO ADDS THAT THE COMMISSION "MAY
ORDER A DECREASE WHERE EXISTING RATES ARE UNJUST  ...  OR ARE NOT THE
LOWEST REASONABLE RATES."  AND SEC. 16 GIVES THE COMMISSION "POWER TO
...  ISSUE  ...  SUCH ORDERS  ...  AS IT MAY FIND NECESSARY OR
APPROPRIATE TO CARRY OUT THE PROVISIONS OF THIS ACT." 

THE FIRST PREREQUISITE TO AN ORDER BY THE COMMISSION IS THAT IT SHALL
BE PRECEDED BY A HEARING AND FINDINGS.  IN THIS CASE, WHILE THE
PROCEEDINGS WERE NOT ENDED BY THE INTERIM ORDER, THE COMPANIES HAD FULL
OPPORTUNITY TO OFFER ALL THEIR EVIDENCE BOTH DIRECT AND IN REBUTTAL,
AND FULL OPPORTUNITY TO CROSS-EXAMINE EVERY WITNESS OFFERED BY BOTH THE
FEDERAL POWER COMMISSION AND THE ILLINOIS COMMERCE COMMISSION.  ALL THE
EVIDENCE TENDERED WAS RECEIVED AND CONSIDERED BY THE COMMISSION, AND
BEFORE THE INTERIM ORDER WAS ENTERED COUNSEL FOR THE COMPANIES STATED
TO THE COMMISSION THAT THEY HAD CONCLUDED THE DIRECT TESTIMONY IN
SUPPORT OF THEIR CASE.  SO FAR AS THE ORDER IS SUPPORTED BY THE
EVIDENCE, THE COMPANIES CANNOT COMPLAIN THAT THEY WERE DENIED A FULL
HEARING BECAUSE THEY HAD NOT BEEN ABLE TO EXAMINE ON REDIRECT THEIR OWN
WITNESSES WHO HAD NOT BEEN CROSS-EXAMINED OR BECAUSE THEY HAD NO
OPPORTUNITY TO CROSS-EXAMINE OR REBUT WITNESSES WHO WERE NOT OFFERED BY
THE COMMISSION.  THE RIGHT TO A FULL HEARING BEFORE ANY TRIBUNAL DOES
NOT INCLUDE THE RIGHT TO CHALLENGE OR RELY ON EVIDENCE NOT OFFERED OR
CONSIDERED.  SEE NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 201. 

THE ESTABLISHMENT OF A RATE FOR A REGULATED INDUSTRY OFTEN INVOLVES
TWO STEPS OF DIFFERENT CHARACTER, ONE OF WHICH MAY APPROPRIATELY
PRECEDE THE OTHER.  THE FIRST IS THE ADJUSTMENT OF THE GENERAL REVENUE
LEVEL TO THE DEMANDS OF A FAIR RETURN.  THE SECOND IS THE ADJUSTMENT OF
A RATE SCHEDULE CONFORMING TO THAT LEVEL SO AS TO ELIMINATE
DISCRIMINATIONS AND UNFAIRNESS FROM ITS DETAILS.  SUCH AN ORDERLY
PROCEDURE FOR ESTABLISHING THE RATES PRESCRIBED BY THE ACT WOULD SEEM
TO BE AN APPROPRIATE MEANS OF CARRYING OUT ITS PROVISIONS.  SECTION 5
OF THE ACT WAS MODELLED ON THE PROVISIONS OF THE TRANSPORTATION ACT, 49
U.S.C. SECS. 13, 15, WHICH HAVE BEEN INTERPRETED AS GIVING TO THE
INTERSTATE COMMERCE COMMISSION AUTHORITY TO ESTABLISH A GENERAL LEVEL
OF RATES AND DIVISIONS IN ADVANCE OF A SCHEDULE TO BE FILED BY THE
CARRIERS.  SEE NEW ENGLAND DIVISIONS CASE, SUPRA, 201-202, 203, N. 21. 
CF. SHARFMAN, THE INTERSTATE COMMERCE COMMISSION, VOL. 2, PP. 381-82;
DRISCOLL V. EDISON CO., 307 U.S. 104.    WE THINK THAT THE PROVISO OF
SEC. 5, ALREADY QUOTED, CONTEMPLATES THAT, WHEN EXISTING RATES ARE
FOUND TO BE UNJUST AND UNREASONABLE, AN ORDER DECREASING REVENUES MAY
BE FILED WITHOUT ESTABLISHING A SPECIFIC SCHEDULE OF RATES.  SINCE SUCH
AN ORDER MAY BE IN THE INTERESTS OF THE PUBLIC, AS WELL AS THE
REGULATED COMPANY, AND IS IN HARMONY WITH THE PURPOSES OF THE ACT, IT
IS ONE WHICH THE COMMISSION HAS DISCRETION TO MAKE UNDER SEC. 16 AS
APPROPRIATE TO CARRY OUT THE PROVISIONS OF THE ACT. 

THE SCOPE OF JUDICIAL REVIEW OF RATES PRESCRIBED BY THE COMMISSION. 
THE ULTIMATE QUESTION FOR OUR DECISION IS WHETHER THE RATE PRESCRIBED
BY THE COMMISSION IS TOO LOW.  THE STATUTE DECLARES, SEC. 4(A), THAT
THE RATES OF NATURAL GAS COMPANIES SUBJECT TO THE ACT "SHALL BE JUST
AND REASONABLE, AND ANY SUCH RATE OR CHARGE THAT IS NOT JUST AND
REASONABLE IS HEREBY DECLARED TO BE UNLAWFUL."  SECTION 5(A) DIRECTS
THE COMMISSION TO "DETERMINE THE JUST AND REASONABLE RATE" TO BE
OBSERVED, AND REQUIRES THE COMMISSION TO "FIX THE SAME BY ORDER."  IT
ALSO PROVIDES THAT "THE COMMISSION MAY ORDER A DECREASE WHERE EXISTING
RATES ARE UNJUST  ...  UNLAWFUL, OR ARE NOT THE LOWEST REASONABLE
RATES."  ON REVIEW OF THE COMMISSION'S ORDERS BY A CIRCUIT COURT OF
APPEALS AS AUTHORIZED BY SEC. 19(B), THE COMMISSION'S FINDINGS OF FACT
"IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE." 

BY LONG STANDING USAGE IN THE FIELD OF RATE REGULATION, THE "LOWEST
REASONABLE RATE" IS ONE WHICH IS NOT CONFISCATORY IN THE CONSTITUTIONAL
SENSE.  LOS ANGELES GAS CO. V. RAILROAD COMMISSION, 289 U.S. 287, 305;
RAILROAD COMMISSION V. PACIFIC GAS CO., SUPRA, 394, 395; DENVER STOCK
YARD CO. V. UNITED STATES, 304 U.S. 470, 475.  ASSUMING THAT THERE IS A
ZONE OF REASONABLENESS WITHIN WHICH THE COMMISSION IS FREE TO FIX A
RATE VARYING IN AMOUNT AND HIGHER THAN A CONFISCATORY RATE, SEE BANTON
V. BELT LINE RY. CORP., 268 U.S. 413, 422, 423; COLUMBUS GAS CO. V.
COMMISSION, 292 U.S. 398, 414; DENVER STOCK YARD CO. V. UNITED STATES,
SUPRA, 483, THE COMMISSION IS ALSO FREE UNDER SEC. 5(A) TO DECREASE ANY
RATE WHICH IS NOT THE "LOWEST REASONABLE RATE."  IT FOLLOWS THAT THE
CONGRESSIONAL STANDARD PRESCRIBED BY THIS STATUTE COINCIDES WITH THAT
OF THE CONSTITUTION, AND THAT THE COURTS ARE WITHOUT AUTHORITY UNDER
THE STATUTE TO SET ASIDE AS TOO LOW ANY "REASONABLE RATE" ADOPTED BY
THE COMMISSION WHICH IS CONSISTENT WITH CONSTITUTIONAL REQUIREMENTS. 

THE CONSTITUTION DOES NOT BIND RATE-MAKING BODIES TO THE SERVICE OF
ANY SINGLE FORMULA OR COMBINATION OF FORMULAS.  AGENCIES TO WHOM THIS
LEGISLATIVE POWER HAS BEEN DELEGATED ARE FREE, WITHIN THE AMBIT OF
THEIR STATUTORY AUTHORITY, TO MAKE THE PRAGMATIC ADJUSTMENTS WHICH MAY
BE CALLED FOR BY PARTICULAR CIRCUMSTANCES.  ONCE A FAIR HEARING HAS
BEEN GIVEN, PROPER FINDINGS MADE AND OTHER STATUTORY REQUIREMENTS
SATISFIED, THE COURTS CANNOT INTERVENE IN THE ABSENCE OF A CLEAR
SHOWING THAT THE LIMITS OF DUE PROCESS HAVE BEEN OVERSTEPPED.  IF THE
COMMISSION'S ORDER, AS APPLIED TO THE FACTS BEFORE IT AND VIEWED IN ITS
ENTIRETY, PRODUCES NO ARBITRARY RESULT, OUR INQUIRY IS AT AN END. 

GOING CONCERN VALUE.  THE COMPANIES INSIST THAT THEIR BUSINESS HAS A
GOING CONCERN VALUE OF $8,500,000, WHICH THE COMMISSION DID NOT INCLUDE
IN THE RATE BASE AND ON WHICH THEY ARE ENTITLED TO EARN A RETURN.  IN
ESTABLISHING THE RATE BASE FOR THE PURPOSES OF THE INTERIM ORDER THE
COMMISSION "RELUCTANTLY" ACCEPTED THE ESTIMATES OF VALUE, PRESENTED BY
THE COMPANIES' OWN WITNESSES, AS FOLLOWS: 

REPRODUCTION COST NEW OF PHYSICAL PROPERTIES 

(EXCLUSIVE OF GAS RESERVES)........................ $56,302,250  FN4 

VALUE OF GAS RESERVES AS OF JUNE 1, 1939...  13,334,775 

CAPITAL ADDITIONS FROM JUNE 1, 1939, TO DECEMBER 

31, 1942........................................... $3,808,399  FN5 

WORKING CAPITAL....................................    975,000 

TOTAL RATE BASE....................................$74,420,424 

WHILE NO ITEM FOR GOING CONCERN VALUE IS SEPARATELY STATED IN THE
RATE BASE, THE COMPUTATION OF COST NEW OF PHYSICAL EQUIPMENT INCLUDED -
IN ADDITION TO LABOR AND COST OF MATERIALS - LARGE AMOUNTS FOR
OVERHEAD, INTEREST, TAXES, ADMINISTRATION, LEGAL AND SUPERVISORY
CHARGES, AND EXPENSES PAID OR INCURRED IN ASSEMBLING THE PLANT AS THAT
OF A GOING CONCERN. 

THE COMMISSION SPOKE OF THE RATE BASE THUS ARRIVED AT AS "LIBERAL"
AND AS A "GENEROUS ALLOWANCE."  THAT THE ESTIMATE OF REPRODUCTION COSTS
NEW IS LIBERAL IS INDICATED BY THE CIRCUMSTANCES THAT THE COMPANIES'
STRUCTURES OTHER THAN GAS RESERVES WERE BUILT IN 1930-1931 AT A TIME,
AS THE RECORD SHOWS, OF RELATIVELY HIGH PRICES, AND THAT THEIR
REPRODUCTION COST DEPRECIATED IS GREATER THAN ACTUAL COST, WHICH WAS
ABOUT $50,000,000.  AND THE ALLOWED "PRESENT VALUE" OF LEASES AS OF
JUNE 1, 1939, $13,334,775, IS APPROXIMATELY $4,000,000 MORE THAN BOOK
COST, EVEN WITHOUT TAKING INTO ACCOUNT A SUBSTANTIAL REDUCTION FOR
DEPLETION RESERVES OF $1,152,854, WHICH THE COMPANIES HAD ACCRUED ON
THEIR OWN BOOKS BY THE END OF 1938.  THE COMMISSION DECLINED TO INCLUDE
GOING CONCERN VALUE AS AN ADDITIONAL ITEM IN THE RATE BASE. 

THE COMPANIES URGE, AS THE COURT OF APPEALS HELD, THAT THERE ARE
ITEMS OF COST OR EXPENSE INCURRED IN THE ESTABLISHMENT AND DEVELOPMENT
OF THE BUSINESS DURING THE SEVEN-YEAR PERIOD PRIOR TO REGULATION, WHICH
WERE NOT INCLUDED IN THE COMPANIES' ESTIMATE OF VALUE ACCEPTED BY THE
COMMISSION, AND WHICH, IN VIEW OF THE SPECIAL CHARACTERISTICS OF THE
BUSINESS, SHOULD BE CAPITALIZED AND ADDED TO THE RATE BASE TO THE
EXTENT OF $8,500,000 FOR GOING CONCERN VALUE.  THEY INCLUDE, IN AMOUNTS
NOT NOW MATERIAL, THE FOLLOWING:  EXPENDITURES FOR SECURING NEW
BUSINESS; INTEREST ON MONEY INVESTED IN NON-PRODUCTIVE PLANT CAPACITY;
TAXES PAID ON NON-PRODUCTIVE CAPACITY; FIXED OPERATING EXPENSES
ATTRIBUTABLE TO NON-PRODUCTIVE CAPACITY, AND DEPRECIATION ON NON
PRODUCTIVE CAPACITY.  FN6  THE COMPANIES' CONTENTIONS WITH RESPECT TO
ALL THESE ITEMS ARE PREDICATED UPON THE LIMITED LIFE OF THE BUSINESS,
TWENTY-THREE YEARS, AND ON TESTIMONY THAT IN ANTICIPATION OF ITS GROWTH
LARGER GAS MAINS AND FACILITIES WERE CONSTRUCTED THAN WERE REQUIRED
DURING THE EARLIER YEARS OF THE BUSINESS.  THE REPRODUCTION COST NEW OF
THIS EXCESS OF EQUIPMENT IS ADMITTEDLY INCLUDED IN THE RATE BASE. 

NONE OF THESE ITEMS APPEARS IN THE COMPANIES' CAPITAL ACCOUNT.  WITH
THE POSSIBLE EXCEPTION OF EXPENDITURES FOR SECURING NEW BUSINESS, THEY
ARE SYNTHETIC FIGURES ARRIVED AT BY ESTIMATING THE AMOUNT OF EXPENSE
ATTRIBUTABLE TO THE CURRENT COST OF MAINTENANCE OF THE EXCESS CAPACITY
OF THE PLANT DURING PERIODS WHEN THE EXCESS CAPACITY WAS NOT USED.  BUT
THE INTEREST CHARGES, TAXES AND OTHER COSTS OF MAINTAINING THIS EXCESS
CAPACITY DURING THE PERIOD WHEN NOT IN USE HAVE NOT BEEN CAPITALIZED BY
THE COMPANIES ON THEIR BOOKS AND SO FAR AS APPEARS WERE PAID FROM
CURRENT EARNINGS.  THE SAME IS TRUE OF THE EXPENDITURE FOR ADVERTISING
AND OTHER EXPENSES OF ACQUIRING NEW BUSINESS. 

THE NOVEL QUESTION IS THUS PRESENTED WHETHER CONFISCATION, PROSCRIBED
BY CONGRESS AS WELL AS THE CONSTITUTION, RESULTS FROM THE EXCLUSION
FROM THE RATE BASE OF THE PREVIOUS COSTS OF MAINTAINING EXCESS PLANT
CAPACITY AND OF GETTING NEW BUSINESS.  THE COMMISSION GAVE FULL
CONSIDERATION TO THIS CONTENTION.  IT SAID:  "THE COMPANIES' CLAIM FOR
$8,500,000 FOR GOING CONCERN VALUE MUST BE DISALLOWED.  THE AMOUNT
OBVIOUSLY IS AN ARBITRARY CLAIM, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
WARRANTING ITS ALLOWANCE.  ITS ALLOWANCE WOULD MEAN THE ACCEPTANCE OF A
DECEPTIVE FICTION, RESULTING IN AN UNFAIR IMPOSITION UPON CONSUMERS. 
WE ARE CONVINCED THAT WE ARE ALLOWING IN OUR RATE BASE MORE THAN AN
ADEQUATE AMOUNT TO COVER ALL ELEMENTS OF VALUE." 

THERE IS NO CONSTITUTIONAL REQUIREMENT THAT GOING CONCERN VALUE, EVEN
WHEN IT IS AN APPROPRIATE ELEMENT TO BE INCLUDED IN A RATE BASE, MUST
BE SEPARATELY STATED AND APPRAISED AS SUCH.  THIS COURT HAS OFTEN
SUSTAINED VALUATIONS FOR RATE PURPOSES OF A BUSINESS ASSEMBLED AS A
WHOLE, WITHOUT SEPARATE APPRAISAL OF THE GOING CONCERN ELEMENT. 
COLUMBUS GAS CO. V. COMMISSION, 292 U.S. 398, 411; DAYTON P. & L. CO.
V. COMMISSION, 292 U.S. 290, 309; DENVER STOCK YARD CO. V. UNITED
STATES, SUPRA, 478-480; DRISCOLL V. EDISON CO., SUPRA, 117.  WHEN THAT
HAS BEEN DONE, THE BURDEN RESTS ON THE REGULATED COMPANY TO SHOW THAT
THIS ITEM HAS NEITHER BEEN ADEQUATELY COVERED IN THE RATE BASE NOR
RECOUPED FROM PRIOR EARNINGS OF THE BUSINESS.  DES MOINES GAS CO. V.
DES MOINES, 238 U.S. 153, 166. 

THE TOTAL VALUE OF THE COMPANIES' PLANT, INCLUDING EQUIPMENT IN
EXCESS OF IMMEDIATE NEEDS WHEN BEGINNING BUSINESS, HAS BEEN INCLUDED IN
THE RATE BASE ADOPTED.  IF RIGHTLY INCLUDED, AS THE COMMISSION HAS
ASSUMED FOR PURPOSES OF THE ORDER, THE COMPANIES WOULD HAVE BEEN
ENTITLED TO EARN A FAIR RETURN UPON ITS VALUE, HAD THE BUSINESS BEEN
REGULATED FROM THE START.  BUT IT DOES NOT FOLLOW THAT THE COMPANIES'
PROPERTY WOULD BE CONFISCATED BY DENYING TO THEM THE PRIVILEGE OF
CAPITALIZING THE MAINTENANCE COST OF EXCESS PLANT CAPACITY, WHICH WOULD
ALLOW THEM TO EARN A RETURN AND AMORTIZATION ALLOWANCE UPON SUCH COSTS
DURING THE ENTIRE LIFE OF THE BUSINESS.  IT IS ONLY ON THE ASSUMPTION
THAT EXCESS CAPACITY IS A PART OF THE UTILITY'S EQUIPMENT USED AND
USEFUL IN THE REGULATED BUSINESS, THAT IT CAN BE INCLUDED AS A PART OF
THE RATE BASE ON WHICH A RETURN MAY BE EARNED.  WHEN SO INCLUDED, THE
UTILITY GETS ITS RETURN NOT FROM CAPITALIZING THE MAINTENANCE COST, BUT
FROM CURRENT EARNINGS BY RATES SUFFICIENT, HAVING IN VIEW THE CHARACTER
OF THE BUSINESS, TO SECURE A FAIR RETURN UPON THE RATE BASE, PROVIDED
THE BUSINESS IS CAPABLE OF EARNING IT.  BUT REGULATION DOES NOT INSURE
THAT THE BUSINESS SHALL PRODUCE NET REVENUES, NOR DOES THE CONSTITUTION
REQUIRE THAT THE LOSSES OF THE BUSINESS IN ONE YEAR SHALL BE RESTORED
FROM FUTURE EARNINGS BY THE DEVICE OF CAPITALIZING THE LOSSES AND
ADDING THEM TO THE RATE BASE ON WHICH A FAIR RETURN AND DEPRECIATION
ALLOWANCE IS TO BE EARNED.  GALVESTON ELECTRIC CO. V. GALVESTON, 258
U.S. 388; SAN DIEGO LAND & TOWN CO. V. JASPER, 189 U.S. 439, 446-47. 
THE DEFICIENCY MAY NOT BE THUS ADDED TO THE RATE BASE, FOR THE OBVIOUS
REASON THAT THE HAZARD THAT THE PROPERTY WILL NOT EARN A PROFIT REMAINS
ON THE COMPANY IN THE CASE OF A REGULATED, AS WELL AS AN UNREGULATED,
BUSINESS. 

HERE THE COMPANIES, THOUGH UNREGULATED, ALWAYS TREATED THEIR ENTIRE
ORIGINAL INVESTMENT, TOGETHER WITH SUBSEQUENT ADDITIONS, AS CAPITAL ON
WHICH PROFIT WAS TO BE EARNED.  THEY CHARGED THE OUT-OF-POCKET COST OF
MAINTENANCE OF PLANT, WHETHER USED TO CAPACITY OR NOT, AS OPERATING
EXPENSES DEDUCTIBLE FROM EARNINGS BEFORE ARRIVING AT NET PROFITS.  THEY
HAVE THUS TREATED THE ITEMS NOW SOUGHT TO BE CAPITALIZED IN THE RATE
BASE AS OPERATING EXPENSES TO BE COMPENSATED FROM EARNINGS, AS IN THE
CASE OF REGULATED COMPANIES.  THE HISTORY OF THE FIRST SEVEN YEARS OF
OPERATION BEFORE REGULATION SHOWS AN AVERAGE ANNUAL RETURN,  FN7  AFTER
DEDUCTION OF OPERATING EXPENSES, OF APPROXIMATELY 8% ON THE
UNDEPRECIATED INVESTMENT.  THIS HIGH RETURN WAS EARNED DURING A PERIOD
WHICH INCLUDED THE SEVEREST DEPRESSION IN OUR HISTORY. 

WHETHER THERE IS GOING CONCERN VALUE IN ANY CASE DEPENDS UPON THE
FINANCIAL HISTORY OF THE BUSINESS.  HOUSTON V. SOUTHWESTERN TEL. CO.,
259 U.S. 318, 325.  THIS IS PECULIARLY TRUE OF A BUSINESS WHICH DERIVES
ITS ESTIMATES OF GOING CONCERN VALUE FROM A FINANCIAL HISTORY PRECEDING
REGULATION.  THAT HISTORY HERE DISCLOSES NO BASIS FOR GOING CONCERN
VALUE, BOTH BECAUSE THE ELEMENTS RELIED UPON FOR THAT PURPOSE COULD
RIGHTLY BE REJECTED AS CAPITAL INVESTMENT IN THE CASE OF A REGULATED
COMPANY, AND BECAUSE IN THE PRESENT CASE IT DOES NOT APPEAR THAT THE
ITEMS, WHICH HAVE NEVER BEEN TREATED AS CAPITAL INVESTMENT, HAVE NOT
BEEN RECOUPED DURING THE UNREGULATED PERIOD. 

WE CANNOT SAY THAT THE COMMISSION HAS DEPRIVED THE COMPANIES OF THEIR
PROPERTY BY REFUSING TO PERMIT THEM TO EARN FOR THE FUTURE A FAIR
RETURN AND AMORTIZATION ON THE COSTS OF MAINTENANCE OF INITIAL EXCESS
CAPACITY - COSTS WHICH THE COMPANIES FAIL TO SHOW HAVE NOT ALREADY BEEN
RECOUPED FROM EARNINGS BEFORE COMPUTING THE SUBSTANTIAL "NET PROFITS"
EARNED DURING THE FIRST SEVEN YEARS.  THE ITEMS FOR ADVERTISING AND
ACQUIRING NEW BUSINESS HAVE BEEN TREATED IN THE SAME WAY BY THE
COMPANIES, AND DO NOT, IN THE CIRCUMSTANCES OF THIS CASE, STAND ON ANY
DIFFERENT FOOTING.  CF. WEST OHIO GAS CO. V. COMMISSION, 294 U.S. 63,
72. 

THE AMORTIZATION BASE.  THE COMMISSION TOOK AS THE AMORTIZATION BASE
THE SUM OF $78,284,009.  THIS WAS MADE UP OF THE COMPANIES' TOTAL
INVESTMENT, AT THE END OF 1938, OF $67,173,761(WITHOUT DEDUCTION OF
PROPERTY RETIREMENTS ALREADY MADE), PLUS ESTIMATED FUTURE CAPITAL
ADDITIONS THROUGH 1954, INCLUDING REPLACEMENTS, AMOUNTING TO
$12,159,380,  FN8  LESS ESTIMATED SALVAGE AT THE PREDICTED END OF THE
PROJECT IN 1954.  IT IS NOT QUESTIONED THAT THE COMMISSION'S ANNUAL
AMORTIZATION ALLOWANCE OF $1,557,852, ACCUMULATED AT THE SINKING FUND
INTEREST RATE OF 6 1/2% ADOPTED BY THE ORDER, WILL BE SUFFICIENT IN
1954 TO RESTORE THE CAPITAL INVESTMENT SO COMPUTED. 

THE COMPANIES ARGUE THAT THE AMORTIZATION BASE, COMPUTED ON A BASIS
OF REPRODUCTION COST, SHOULD BE $84,341,218 N9 RATHER THAN COST PLUS
ESTIMATED FUTURE CAPITAL ADDITIONS.  BUT THE PURPOSE OF THE
AMORTIZATION ALLOWANCE AND ITS JUSTIFICATION IS THAT IT IS A MEANS OF
RESTORING FROM CURRENT EARNINGS THE AMOUNT OF SERVICE CAPACITY OF THE
BUSINESS CONSUMED IN EACH YEAR.  LINDHEIMER V. ILLINOIS TEL. CO., 292
U.S. 151, 167.  WHEN THE PROPERTY IS DEVOTED TO A BUSINESS WHICH CAN
EXIST FOR ONLY A LIMITED TERM, ANY SCHEME OF AMORTIZATION WHICH WILL
RESTORE THE CAPITAL INVESTMENT AT THE END OF THE TERM INVOLVES NO
DEPRIVATION OF PROPERTY.  EVEN THOUGH THE REPRODUCTION COST OF THE
PROPERTY DURING THE PERIOD MAY BE MORE THAN ITS ACTUAL COST, THIS
THEORETICAL ACCRETION TO VALUE REPRESENTS NO PROFIT TO THE OWNER, SINCE
THE PROPERTY DEDICATED TO THE BUSINESS, SAVE FOR ITS SALVAGE VALUE, IS
DESTINED FOR THE SCRAP-HEAP WHEN THE BUSINESS ENDS.  THE CONSTITUTION
DOES NOT REQUIRE THAT THE OWNER WHO EMBARKS IN A WASTING-ASSET BUSINESS
OF LIMITED LIFE SHALL RECEIVE AT THE END MORE THAN HE HAS PUT INTO IT.
WE NEED NOT NOW CONSIDER WHETHER, AS THE GOVERNMENT URGES, THERE CAN IN
NO CIRCUMSTANCES BE A CONSTITUTIONAL REQUIREMENT THAT THE AMORTIZATION
BASE BE THE REPRODUCTION VALUE RATHER THAN THE ACTUAL COST OF THE
PROPERTY DEVOTED TO A REGULATED BUSINESS.  CF. UNITED RAILWAYS CO. V.
WEST, 280 U.S. 234, 265.  IT IS ENOUGH THAT HERE THE BUSINESS, BY
HYPOTHESIS, WILL END IN 1954, AND THAT THE AMORTIZATION BASE, COMPUTED
AT COST AND INCLUDING PROPERTY ALREADY RETIRED, WILL BE COMPLETELY
RESTORED BY 1954 BY THE ANNUAL AMORTIZATION ALLOWANCES.  AS THE
COMMISSION DECLARED:  "THE AMOUNTS OF AMORTIZATION ARE RECOGNIZED AND
TREATED AS OPERATING EXPENSES.  OPERATING EXPENSES ARE STATED ON THE
BASIS OF COST.  ...  WE REFUSE TO MAKE AN ALLOWANCE OF AMORTIZATION IN
EXCESS OF COST.  TO DO SO WOULD NOT BE THE COMPUTATION OF A PROPER
EXPENSE, BUT INSTEAD THE ALLOWANCE OF ADDITIONAL PROFIT OVER AND ABOVE
A FAIR RETURN.  MANIFESTLY SUCH AN ADDITIONAL RETURN WOULD UNJUSTLY
PENALIZE CONSUMERS." 

THE AMORTIZATION PERIOD.  THE COURT BELOW HELD THAT, SINCE THE
BUSINESS WAS UNREGULATED FOR THE FIRST SEVEN YEARS, THE ADOPTION BY THE
COMMISSION OF THE ESTIMATED TWENTY-THREE YEAR LIFE OF THE BUSINESS AS
THE AMORTIZATION PERIOD INVOLVED A DENIAL OF DUE PROCESS.  IN VIEW OF
THE ESTIMATE BY THE COMMISSION AND THE COMPANIES THAT THE GAS
PROPERTIES WOULD BE EXHAUSTED IN ABOUT SIXTEEN YEARS FROM THE DATE OF
THE ACT, THE COURT THOUGHT, AS THE COMPANIES ARGUE, THAT A RATE OF
RETURN WOULD BE CONFISCATORY WHICH WOULD NOT PROVIDE, IN ADDITION TO A
FAIR RETURN, AN ANNUAL AMORTIZATION ALLOWANCE SUFFICIENT TO RESTORE THE
TOTAL INVESTMENT OVER THE FINAL SIXTEEN-YEAR PERIOD.  BUT THIS ARGUMENT
OVERLOOKS THE FACT THAT THE DEPRECIATION OF PHYSICAL PROPERTY
ATTRIBUTED TO USE, AND THE OBSOLESCENCE OF THE ENTIRE PROPERTY
ATTRIBUTABLE TO LAPSE OF TIME IN THE CASE OF A BUSINESS HAVING A
LIMITED LIFE, HAD BEEN TAKING PLACE DURING THE SEVEN YEARS BEFORE
REGULATION AND THAT THOSE ITEMS MUST BE RECOUPED IF AT ALL FROM
EARNINGS.  CAPITAL INVESTMENT LOSS AT THE END OF THE LIFE OF A BUSINESS
CAN ONLY BE AVOIDED BY RESTORATION OF THE INVESTMENT FROM EARNINGS, AND
IS AVOIDABLE SO FAR AS IS HUMANLY POSSIBLE ONLY BY AN APPROPRIATE
CHARGE OF AMORTIZATION TO EARNINGS AS THEY ACCRUE. 

HERE, THERE IS NO QUESTION BUT THAT THE COMMISSION'S ANNUAL
AMORTIZATION ALLOWANCE, IF APPLIED OVER THE ENTIRE TWENTY-THREE YEAR
LIFE OF THE BUSINESS, IS SUFFICIENT TO RESTORE THE TOTAL CAPITAL
INVESTMENT AT THE END, OR THAT EARNINGS OF THE PAST AND THOSE ESTIMATED
FOR THE FUTURE TOGETHER ARE SUFFICIENT TO PROVIDE FOR THE AMORTIZATION
ALLOWANCE AND A FAIR RETURN, GIVEN AN APPROPRIATE RATE BASE AND RATE OF
RETURN.  MAKING THAT ASSUMPTION, WE CANNOT SAY THAT ADEQUATE PROVISION
HAS NOT BEEN MADE FOR RESTORATION OF THE COMPANIES' INVESTMENT FROM
EARNINGS, AND A FAIR RETURN ON THE INVESTMENT.  EVEN THOUGH THE
COMPANIES WERE UNREGULATED FOR SEVEN YEARS, EARNINGS DURING THAT PERIOD
WERE AVAILABLE AND ADEQUATE FOR AMORTIZATION.  IN FACT, THE COMPANIES'
CHARGES TO EARNINGS, FOR DEPRECIATION, DEPLETION AND RETIREMENTS,
TOTALLED $19,558,810, OR AN AVERAGE OF $2,794,115 PER ANNUM.  THIS WAS
IN CONFORMITY WITH THE ESTABLISHED BUSINESS PRACTICE, IN THE CASE OF
UNREGULATED AS WELL AS REGULATED BUSINESSES, TO MAKE SUCH A
DEPRECIATION OR AMORTIZATION ALLOWANCE CHARGEABLE ANNUALLY TO EARNINGS
AS AN OPERATING EXPENSE IN ORDER TO PROVIDE ADEQUATELY FOR ANNUAL
CONSUMPTION OF CAPITAL IN THE BUSINESS.  LINDHEIMER V. ILLINOIS TEL.
CO., SUPRA. 

THE COMPANIES ARE NOT DEPRIVED OF PROPERTY BY A REQUIREMENT THAT THEY
CREDIT IN THE AMORTIZATION ACCOUNT SO MUCH OF THE EARNINGS RECEIVED
DURING THE PRIOR PERIOD AS ARE APPROPRIATELY ALLOCABLE TO IT FOR
AMORTIZATION.  ONLY BY THAT METHOD IS IT POSSIBLE TO DETERMINE THE
AMOUNT OF EARNINGS WHICH MAY JUSTLY BE REQUIRED FOR AMORTIZATION DURING
THE REMAINING LIFE OF THE BUSINESS. 

AMORTIZATION INTEREST RATE.  THE ANNUAL AMORTIZATION ALLOWANCES OF
$1,557,852, IF ACCUMULATED AT A 6 1/2% COMPOUND INTEREST RATE UNTIL THE
ASSUMED EXHAUSTION OF THE GAS RESERVES IN 1954, WILL BE SUFFICIENT TO
RESTORE THE UNDEPRECIATED TOTAL INVESTMENT LESS THE SALVAGE VALUE OF
THE PROPERTY.  THE COMPANIES URGE THAT THE INTEREST RATE SHOULD HAVE
BEEN LOWER, SAY 2%, ON THE ASSUMPTION THAT ONLY SOME SUCH LOWER RATE
WOULD BE EARNED BY A HYPOTHETICAL SINKING FUND TO BE CREATED FROM THE
ANNUAL AMORTIZATION ALLOWANCES.  BUT THE ARGUMENT IGNORES THE FACT THAT
THE AMORTIZATION METHOD ADOPTED BY THE COMMISSION CONTEMPLATES NOT A
SINKING FUND OF SEGREGATED SECURITIES PURCHASED WITH CASH WITHDRAWN
FROM THE BUSINESS, BUT MERELY A SINKING FUND RESERVE CHARGED TO
EARNINGS AND NOT DISTRIBUTABLE AS ORDINARY DIVIDENDS.  UNDER THIS
METHOD THERE IS NO DEDUCTION OF THE AMORTIZATION ALLOWANCES FROM THE
RATE BASE ON WHICH A FAIR RETURN - 6 1/2% UNDER THE CURRENT INTERIM
ORDER - IS TO BE ALLOWED DURING THE LIFE OF THE BUSINESS. 

THE COMPANIES ARE THUS ALLOWED TO EARN IN EACH YEAR, IN ADDITION TO
THE AMORTIZATION ALLOWANCE, 6 1/2% ON BOTH THE AMORTIZED AND THE
UNAMORTIZED PORTIONS OF THE BASE.  IF THE AMORTIZATION INTEREST WERE
COMPUTED AT A 2% RATE WITHOUT DEDUCTING THE AMORTIZED PORTION FROM THE
RATE BASE, THE COMPANIES WOULD CONTINUE TO RECEIVE A 6 1/2% INSTEAD OF
ONLY A 2% RETURN ON THAT PORTION OF THE INVESTMENT.  TRUE, THE METHOD
OF AMORTIZATION ADOPTED MEANS THAT THE COMPANIES LOOK TO THE EARNINGS
OF THE BUSINESS FOR THE HYPOTHETICAL INTEREST ON AMORTIZATION RESERVE. 
THIS, IT IS ARGUED, MAY INVOLVE MORE BUSINESS RISK THAN A METHOD OF
AMORTIZATION CONTEMPLATING THE ACTUAL WITHDRAWAL FROM THE BUSINESS OF
THE AMORTIZATION ALLOWANCES AND THEIR INVESTMENT IN SEGREGATED
SECURITIES BEARING A LOWER RATE OF INTEREST.  BUT HERE THE 6 1/2% RATE
OF RETURN ALLOWED ON THE AMORTIZED PORTION OF THE RATE BASE INCLUDES
COMPENSATION FOR THE BUSINESS RISK, AND THE RISK IS AN INCIDENT OF THE
BUSINESS IN WHICH THE COMPANIES HAVE HAZARDED THEIR CAPITAL AND IN
WHICH THEY PROPOSE TO INVEST ADDITIONAL CAPITAL.  THE COMMISSION
DECLARED IT ADOPTED THIS METHOD TO AVOID THE INEQUITABLE RESULT WHICH
WOULD FOLLOW IF THE COMPANIES WERE PERMITTED TO INCLUDE IN THEIR
CHARGES TO THE PUBLIC 6 1/2% ON THE AMORTIZED PORTION OF THE BASE,
WHILE TREATING IT AS EARNING ONLY 2%. THE COMMISSION'S CONCLUSION THAT
THIS IS AN APPROPRIATE METHOD IS SUPPORTED BY THE EVIDENCE, AND IN ANY
CASE IT DOES NOT APPEAR THAT IT HAS DEPRIVED OR WILL DEPRIVE THE
COMPANIES OF PROPERTY. 

FAIR RATE OF RETURN.  THE COMMISSION FOUND THAT "6 1/2 PER CENT IS A
FAIR ANNUAL RATE OF RETURN UPON THE RATE BASE ALLOWED," WHICH IT HAD
CHARACTERIZED AS "A GENEROUS ALLOWANCE."  THE COURTS ARE REQUIRED TO
ACCEPT THE COMMISSION'S FINDINGS IF THEY ARE SUPPORTED BY SUBSTANTIAL
EVIDENCE.  SEC. 19(B).  WE CANNOT SAY, ON THIS RECORD, THAT THE
COMMISSION WAS BOUND TO ALLOW A HIGHER RATE. 

THE EVIDENCE SHOWS THAT PROFITS EARNED BY INDIVIDUAL INDUSTRIAL
CORPORATIONS DECLINED FROM 11.3% ON INVESTED CAPITAL IN 1929 TO 5.1% IN
1938.  THE PROFITS OF UTILITY CORPORATIONS DECLINED DURING THE SAME
PERIOD FROM 7.2% TO 5.1%.  FOR RAILROAD CORPORATIONS, THE DECLINE WAS
FROM 6.4% TO 2.3%. INTEREST RATES WERE AT A LOW LEVEL ON ALL FORMS OF
INVESTMENT, AND AMONG THE LOWEST THAT HAVE EVER EXISTED.  THE
SECURITIES OF NATURAL GAS COMPANIES WERE SOLD AT RATES OF RETURN OF
FROM 3% TO 6%, WITH YIELDS ON MOST OF THEIR BOND ISSUES BETWEEN 3% AND
4%.  THE INTEREST ON LARGE LOANS RANGED FROM 2% TO 3.25%. 

THE REGULATED BUSINESS HERE SEEMS EXCEPTIONALLY FREE FROM HAZARDS
WHICH MIGHT OTHERWISE CALL FOR SPECIAL CONSIDERATION IN DETERMINING THE
FAIR RATE OF RETURN.  SUBSTANTIALLY ALL ITS PRODUCT IS DISTRIBUTED IN
THE METROPOLITAN AREA OF CHICAGO, A STABLE AND GROWING MARKET, THROUGH
DISTRIBUTING COMPANIES WHICH OWN 26% OF THE INVESTMENT OF THE NATURAL
GAS PIPELINE COMPANY.  NINETY PER CENT OF ITS GAS IS TAKEN UNDER
CONTRACT BY THE CHICAGO DISTRICT PIPELINE COMPANY.  THE CONTRACT RUNS
UNTIL 1946 OR UNTIL 1951, AT THE OPTION OF THE COMPANIES.  UNDER IT THE
DISTRICT COMPANY IS BOUND TO TAKE, OR AT LEAST PAY FOR, 66 2/3% OF THE
COMPANIES' GAS, AND PERFORMANCE IS GUARANTEED BY THE THREE COMPANIES
DISTRIBUTING THE GAS IN CHICAGO. 

THE DANGER OF EARLY EXHAUSTION OF THE GAS FIELD WAS FULLY TAKEN INTO
ACCOUNT IN THE ESTIMATE OF ITS LIFE, AND THE COMPANIES' ESTIMATE WAS
ACCEPTED.  PROVISION FOR THE COMPLETE AMORTIZATION OF THE INVESTMENT
WITHIN THAT PERIOD AFFORDS A SECURITY TO THE INVESTMENT WHICH IS
LACKING TO THOSE INDUSTRIES WHOSE CAPITAL INVESTMENTS MUST BE CONTINUED
FOR AN INDEFINITE PERIOD.  THE COMPANIES' AFFILIATION WITH THE SIX
LARGE CORPORATIONS WHICH DIRECTLY OR INDIRECTLY OWN ALL THE STOCK,
PLACES THEM IN A STRONG POSITION FOR THEIR FUTURE FINANCING.  THE
BUSINESS IS IN THE SAME POSITION AS OTHER SIMILAR BUSINESSES WITH
RESPECT TO INCREASED TAXATION, INFLATION AND COSTS OF OPERATION.  OTHER
FACTORS, SUCH AS CREDIT RISKS, RISKS OF TECHNOLOGICAL CHANGES, VARYING
DEMANDS FOR PRODUCT, RELATIVELY SMALL LABOR REQUIREMENTS, AND
CONVERSION OF INVENTORY INTO CASH, COMPARE MORE FAVORABLY.  AFTER A
FULL CONSIDERATION OF ALL OF THESE FACTORS AND OF EXPERT TESTIMONY, THE
COMMISSION CONCLUDED THAT THE PRESCRIBED REDUCTION IN REVENUES WAS JUST
AND REASONABLE, AND THAT THE 6 1/2% WAS A FAIR RATE OF RETURN. 

DISPOSITION OF EXCESS CHARGES COLLECTED SINCE THE COMMISSION'S
ORDER.  THE CIRCUIT COURT OF APPEALS STAYED THE COMMISSION'S ORDER
PENDING APPEAL.  THE COMPANIES STATE THAT, AS A CONDITION OF THE STAY,
THE COURT REQUIRED THEM TO GIVE A BOND IN THE SUM OF $1,000,000,
CONDITIONED UPON THEIR REFUND OF EXCESS CHARGES TO CUSTOMERS, IN THE
EVENT THAT THE COMMISSION'S ORDER SHOULD BE SUSTAINED.  THE BOND IS NOT
IN THE RECORD AND ITS PRECISE TERMS ARE NOT BEFORE US. 

THE COMPANIES POINT OUT THAT SUBSTANTIALLY ALL THE GAS AFFECTED BY
THE REDUCTION IN REVENUES IS SOLD TO WHOLESALERS WHO DISTRIBUTE IT FOR
ULTIMATE CONSUMPTION.  THEY ARGUE THAT THE PURPOSE OF THE RATE
REGULATION IS THE PROTECTION OF CONSUMERS, AND THAT THE PURPOSES OF THE
ACT WILL NOT BE EFFECTUATED BY THE REFUNDS TO WHOLESALERS.  THEY INSIST
THAT SUCH REFUNDS, BEING THE WHOLESALERS' PROFITS FROM PAST BUSINESS,
CANNOT BE RESORTED TO FOR REDUCING FUTURE RATES TO THE CONSUMERS.  CF.
KNOXVILLE V. KNOXVILLE WATER CO., 212 U.S. 1, 14; GALVESTON ELECTRIC
CO. V. GALVESTON, SUPRA, 258 U.S. AT 395. 

OF THIS CONTENTION IT IS ENOUGH TO SAY THAT THE QUESTION OF THE
DISPOSITION OF THE EXCESS CHARGES IS NOT BEFORE US FOR DETERMINATION ON
THE PRESENT RECORD.  CF. MORGAN V. UNITED STATES, 304 U.S. 1, 26. 
AMOUNTS COLLECTED IN EXCESS OF THE COMMISSION'S ORDER ARE DECLARED TO
BE UNLAWFUL BY SEC. 4(A) OF THE ACT.  IF THERE IS ANY BASIS, EITHER IN
THE BOND OR THE CIRCUMSTANCES RELIED UPON BY THE COMPANIES, FOR NOT
COMPELLING THE COMPANIES TO SURRENDER THESE ILLEGAL EXACTIONS, IT DOES
NOT APPEAR FROM THE RECORD. 

WE HAVE CONSIDERED BUT FIND IT UNNECESSARY TO DISCUSS OTHER
OBJECTIONS OF LESSER MOMENT TO THE COMMISSION'S ORDER.  WE SUSTAIN THE
VALIDITY OF THE ORDER AND REVERSE THE JUDGMENT BELOW.  REVERSED. 

FN1  THESE CHARGES AGAINST INCOME ARE SLIGHTLY IN EXCESS OF THE
ACCUMULATED RESERVES FOR DEPRECIATION AND DEPLETION - $12,557,892 -
SHOWN BY THE BOOKS AT THE END OF 1938.  THE EXCESS OF $519,596 IS
APPARENTLY DUE TO THE FACT THAT DURING THE PERIOD $7,000,918 OF
PROPERTY, ON THE BASIS OF BOOK COST, WAS RETIRED, WHILE THE ANNUAL
RETIREMENT CHARGES HAD AGGREGATED ONLY $6,481,322.  THE BALANCE OF THE
RETIREMENTS, $519,596, APPARENTLY HAD BEEN CHARGED TO THE DEPRECIATION
AND DEPLETION ACCOUNTS. 

FN2  THIS INCLUDES A NEGLIGIBLE ITEM, "NON-OPERATING INCOME," WHICH
FOR THE SEVEN-YEAR PERIOD CAME TO ONLY $194,600. 

FN3  THE BOOK FIGURES (WHICH ARE ON A COST BASIS) FOR INVESTED
CAPITAL AVERAGE SLIGHTLY UNDER $61,000,000 IF WORKING CAPITAL IS
INCLUDED.  THE DEPRECIATION AND DEPLETION RESERVES ARE TAKEN FROM THE
ACCOUNTS FOR WHICH THE AGGREGATE FIGURE, $12,557,892, IS GIVEN IN NOTE
1, SUPRA. 

FN4  THE ESTIMATES SUBMITTED BY THE COMPANIES STATED THAT THERE
SHOULD BE DEDUCTED FROM THIS FIGURE FOR "VIEWED DEPRECIATION"
$2,866,758.  HOWEVER, IN SETTING A RATE BASE FOR THE INTERIM ORDER, THE
COMMISSION DID NOT MAKE THIS CONCEDED DEDUCTION - PERHAPS BECAUSE IT
HELD, CONTRARY TO THE COMPANIES' CONTENTION, THAT THE PROPERTIES SHOULD
BE AMORTIZED OVER THE ENTIRE LIFE OF THE BUSINESS. 

FN5  THE COMPANIES ESTIMATED THAT THE COST OF ADDITIONAL PROPERTY,
NOT INCLUDING REPLACEMENTS, DURING THE FUTURE LIFE OF THE ENTERPRISE,
SUBSEQUENT TO JUNE 1, 1939, WOULD BE $9,145,083.  ON THIS BASIS, THEY
CLAIMED THAT THERE SHOULD BE INCLUDED IN THE RATE BASE $6,046,286,
WHICH THEY SAID WOULD BE THE ESTIMATED AVERAGE INVESTMENT.  THE
COMMISSION INCLUDED IN THE RATE BASE ONLY $3,808,399, WHICH WAS THE
COMPANIES' ESTIMATED OUTLAY FOR CAPITAL ADDITIONS THROUGH THE END OF
1942.  THIS REDUCTION DOES NOT APPEAR TO BE CHALLENGED.  IN ANY EVENT,
THE REFUSAL TO INCLUDE IN THE RATE BASE CAPITAL EXPENDITURES NOT YET
MADE CAN NOT INVOLVE CONFISCATION. 

FN6  THE ITEM FOR DEPRECIATION ON NON-PRODUCTIVE CAPACITY, AMOUNTING
TO $382,833, IS OBVIOUSLY PROVIDED FOR IN THE COMMISSION'S ALLOWANCE
FOR DEPRECIATION.  THE VALUE OF THE COMPANIES' ENTIRE PLANT, WHETHER
FULLY PRODUCTIVE OR NOT, IS INCLUDED IN THE RATE BASE AND, AS WILL
PRESENTLY APPEAR, PROVISION WAS MADE BY THE COMMISSION'S ORDER FOR ITS
AMORTIZATION ON A COST BASIS FROM EARNINGS.    FN7  BESIDES $8,244,435
OF "NET PROFITS," THE COMPANIES PAID OUT OF GROSS INCOME $23,994,030 AS
INTEREST ON THE BONDS. 

FN8  WE DO NOT INTIMATE ANY APPROVAL OF THE INCLUSION IN THE
AMORTIZATION BASE OF ALL THE ESTIMATED FUTURE CAPITAL ADDITIONS. 

FN9  THE COMPANIES' PROPOSED AMORTIZATION BASE WAS MADE UP OF THE
FOLLOWING ITEMS: 

REPRODUCTION COST NEW, EXCLUDING GAS RESERVES.....   $56,302,250 

VIEWED DEPRECIATION (DEDUCT)......................     2,866,758 

VALUE OF GAS RESERVES.............................    13,334,775 
COST OF ADDITIONAL PROPERTY.......................     9,145,083 

GOING CONCERN VALUE...............................     8,500,000 

WORKING CAPITAL...................................       975,000

                                                $85,390,350 

LESS SALVAGE......................................     1,049,132

                                                   $84,341,218 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE MURPHY,
CONCURRING. 

  I 

WE CONCUR WITH THE COURT'S JUDGMENT THAT THE RATE ORDER OF THE
FEDERAL POWER COMMISSION, ISSUED AFTER A FAIR HEARING UPON FINDINGS OF
FACT SUPPORTED BY SUBSTANTIAL EVIDENCE, SHOULD HAVE BEEN SUSTAINED BY
THE COURT BELOW.  BUT INSOFAR AS THE COURT ASSUMES THAT, REGARDLESS OF
THE TERMS OF THE STATUTE, THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
GRANTS IT POWER TO INVALIDATE AN ORDER AS UNCONSTITUTIONAL BECAUSE IT
FINDS THE CHARGES TO BE UNREASONABLE, WE ARE UNABLE TO JOIN IN THE
OPINION JUST ANNOUNCED. 

RATE MAKING IS A SPECIES OF PRICE FIXING.  IN A RECENT SERIES OF
CASES, THIS COURT HAS HELD THAT LEGISLATIVE PRICE FIXING IS NOT
PROHIBITED BY THE DUE PROCESS CLAUSE.  FN1  WE BELIEVE THAT, IN SO
HOLDING, IT HAS RETURNED, IN PART AT LEAST, TO THE CONSTITUTIONAL
PRINCIPLES WHICH PREVAILED FOR THE FIRST HUNDRED YEARS OF OUR HISTORY. 
MUNN V. ILLINOIS, 94 U.S. 113; PEIK V. CHICAGO & N.W. RY. CO., 94 U.S.
164.  CF. MCCART V. INDIANAPOLIS WATER CO., 302 U.S. 419, 427-428.  THE
MUNN AND PEIK CASES, DECIDED IN 1877, JUSTICES FIELD AND STRONG
DISSENTING, EMPHATICALLY DECLARED PRICE FIXING TO BE A CONSTITUTIONAL
PREROGATIVE OF THE LEGISLATIVE BRANCH, NOT SUBJECT TO JUDICIAL REVIEW
OR REVISION. 

IN 1886, FOUR OF THE JUSTICES WHO HAD VOTED WITH HIM IN THE MUNN AND
PEIK CASES NO LONGER BEING ON THE COURT, CHIEF JUSTICE WAITE EXPRESSED
VIEWS IN AN OPINION OF THE COURT WHICH INDICATED A YIELDING IN PART TO
THE DOCTRINES PREVIOUSLY SET FORTH IN MR. JUSTICE FIELD'S DISSENTING
OPINIONS, ALTHOUGH THE DECISION, UPHOLDING A STATE REGULATORY STATUTE,
DID NOT REQUIRE HIM TO REACH THIS ISSUE.  SEE RAILROAD COMMISSION
CASES, 116 U.S. 307, 331.  FOR AN INTERESTING DISCUSSION OF THE
EVOLUTION OF THIS CHANGE OF POSITION, SEE SWISHER, STEPHEN J. FIELD,
372-392.  BY 1890, SIX JUSTICES OF THE 1877 COURT, INCLUDING CHIEF
JUSTICE WAITE, HAD BEEN REPLACED BY OTHERS.  THE NEW COURT THEN CLEARLY
REPUDIATED THE OPINION EXPRESSED FOR THE COURT BY CHIEF JUSTICE WAITE
IN THE MUNN AND PEIK CASES, IN A HOLDING WHICH ACCORDED WITH THE VIEWS
OF MR. JUSTICE FIELD.  CHICAGO, M. & ST. P. RY. CO. V. MINNESOTA, 134
U.S. 418.  UNDER THOSE VIEWS, FIRST EMBODIED IN A HOLDING OF THIS COURT
IN 1890, "DUE PROCESS" MEANS NO LESS THAN "REASONABLENESS JUDICIALLY
DETERMINED."  FN2 IN ACCORDANCE WITH THIS ELASTIC MEANING WHICH, IN THE
WORDS OF MR. JUSTICE HOLMES, MAKES THE SKY THE LIMIT  FN3  OF JUDICIAL
POWER TO DECLARE LEGISLATIVE ACTS UNCONSTITUTIONAL, THE CONCLUSIONS OF
JUDGES, SUBSTITUTED FOR THOSE OF LEGISLATURES, BECOME A BROAD AND
VARYING STANDARD OF CONSTITUTIONALITY.  FN4  WE SHALL NOT ATTEMPT NOW
TO SET OUT AT LENGTH THE REASONS FOR OUR BELIEF THAT ACCEPTANCE OF SUCH
A MEANING IS HISTORICALLY UNJUSTIFIED AND THAT IT TRANSFERS TO COURTS
POWERS WHICH, UNDER THE CONSTITUTION, BELONG TO THE LEGISLATIVE BRANCH
OF GOVERNMENT.  BUT WE FEEL THAT WE MUST RECORD OUR DISAGREEMENT FROM
AN OPINION WHICH, ALTHOUGH UPHOLDING THE ACTION OF THE COMMISSION ON
THESE PARTICULAR FACTS, NEVERTHELESS GIVES RENEWED VITALITY TO A
"CONSTITUTIONAL" DOCTRINE WHICH WE ARE CONVINCED HAS NO SUPPORT IN THE
CONSTITUTION. 

THE DOCTRINE WHICH MAKES OF "DUE PROCESS" AN UNLIMITED GRANT TO
COURTS TO APPROVE OR REJECT POLICIES SELECTED BY LEGISLATURES IN
ACCORDANCE WITH THE JUDGES' NOTION OF REASONABLENESS HAD ITS ORIGIN IN
CONNECTION WITH LEGISLATIVE ATTEMPTS TO FIX THE PRICES CHARGED BY
PUBLIC UTILITIES.  AND IN NO FIELD HAS IT HAD MORE PARALYZING EFFECTS. 
FN5

                               II 

WE HAVE HERE, TO BE SURE, A STATUTE WHICH EXPRESSLY PROVIDES FOR
JUDICIAL REVIEW.  CONGRESS HAS PROVIDED IN SEC. 5 OF THE NATURAL GAS
ACT THAT THE RATES FIXED BY THE COMMISSION SHALL BE "JUST AND
REASONABLE."  THE PROVISION FOR JUDICIAL REVIEW STATES THAT THE
"FINDING OF THE COMMISSION AS TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL
EVIDENCE, SHALL BE CONCLUSIVE."  SEC. 19(B).  BUT WE ARE NOT SATISFIED
THAT THE OPINION OF THE COURT PROPERLY DELIMITS THE SCOPE OF THAT
REVIEW UNDER THIS ACT.  FURTHERMORE, SINCE THIS CASE STARTS A NEW
CHAPTER IN THE REGULATION OF UTILITY RATES, WE THINK IT IMPORTANT TO
INDICATE MORE EXPLICITLY THAN HAS BEEN DONE THE FREEDOM WHICH THE
COMMISSION HAS BOTH UNDER THE CONSTITUTION AND UNDER THIS NEW STATUTE. 
WHILE THE OPINION OF THE COURT ERASES MUCH WHICH HAS BEEN WRITTEN IN
RATE CASES DURING THE LAST HALF CENTURY, WE THINK THIS IS AN
APPROPRIATE OCCASION TO LAY THE GHOST OF SMYTH V. AMES, 169 U.S. 466,
WHICH HAS HAUNTED UTILITY REGULATION SINCE 1898.  THAT IS ESPECIALLY
DESIRABLE LEST THE REFERENCE BY THE MAJORITY TO "CONSTITUTIONAL
REQUIREMENTS" AND TO "THE LIMITS OF DUE PROCESS" BE DEEMED TO
PERPETUATE THE FALLACIOUS "FAIR VALUE" THEORY OF RATE MAKING IN THE
LIMITED JUDICIAL REVIEW PROVIDED BY THE ACT. 

SMYTH V. AMES HELD (PP. 546-547) THAT "THE BASIS OF ALL CALCULATIONS
AS TO THE REASONABLENESS OF RATES TO BE CHARGED BY A CORPORATION
MAINTAINING A HIGHWAY UNDER LEGISLATIVE SANCTION MUST BE THE FAIR VALUE
OF THE PROPERTY BEING USED BY IT FOR THE CONVENIENCE OF THE PUBLIC. 
AND IN ORDER TO ASCERTAIN THAT VALUE, THE ORIGINAL COST OF
CONSTRUCTION, THE AMOUNT EXPENDED IN PERMANENT IMPROVEMENTS, THE AMOUNT
AND MARKET VALUE OF ITS BONDS AND STOCK, THE PRESENT AS COMPARED WITH
THE ORIGINAL COST OF CONSTRUCTION, THE PROBABLE EARNING CAPACITY OF THE
PROPERTY UNDER PARTICULAR RATES PRESCRIBED BY STATUTE, AND THE SUM
REQUIRED TO MEET OPERATING EXPENSES, ARE ALL MATTERS FOR CONSIDERATION,
AND ARE TO BE GIVEN SUCH WEIGHT AS MAY BE JUST AND RIGHT IN EACH CASE. 
WE DO NOT SAY THAT THERE MAY NOT BE OTHER MATTERS TO BE REGARDED IN
ESTIMATING THE VALUE OF THE PROPERTY.  WHAT THE COMPANY IS ENTITLED TO
ASK IS A FAIR RETURN UPON THE VALUE OF THAT WHICH IT EMPLOYS FOR THE
PUBLIC CONVENIENCE.  ON THE OTHER HAND, WHAT THE PUBLIC IS ENTITLED TO
DEMAND IS THAT NO MORE BE EXACTED FROM IT FOR THE USE OF A PUBLIC
HIGHWAY THAN THE SERVICES RENDERED BY IT ARE REASONABLY WORTH." 

(1)  THIS THEORY DERIVES FROM PRINCIPLES OF EMINENT DOMAIN.  SEE MR.
JUSTICE BREWER, AMES V. UNION PACIFIC RY. CO., 64 F. 165, 177; WEST V.
CHESAPEAKE & POTOMAC TELEPHONE CO., 295 U.S. 662, 671; HALE,
CONFLICTING JUDICIAL CRITERIA OF UTILITY RATES, 38 COL. L. REV. 959. 
IN CONDEMNATION CASES THE "VALUE OF PROPERTY, GENERALLY SPEAKING, IS
DETERMINED BY ITS PRODUCTIVENESS - THE PROFITS WHICH ITS USE BRINGS TO
THE OWNER."  MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312,
328, 329.  CF. CONSOLIDATED ROCK PRODUCTS CO. V. DU BOIS, 312 U.S. 510,
525-526.  BUT THOSE PRINCIPLES HAVE NO PLACE IN RATE REGULATION.  IN
THE FIRST PLACE, THE VALUE OF A GOING CONCERN IN FACT DEPENDS ON
EARNINGS UNDER WHATEVER RATES MAY BE ANTICIPATED.  THE PRESENT FAIR
VALUE RULE CREATES, BUT OFFERS NO SOLUTION TO, THE DILEMMA THAT VALUE
DEPENDS UPON THE RATES FIXED AND THE RATES UPON VALUE.  SEE MR. JUSTICE
BRANDEIS, SOUTHWESTERN BELL TELEPHONE CO. V. PUBLIC SERVICE COMMISSION,
262 U.S. 276, 292; HALE, THE FAIR VALUE MERRY-GO-ROUND, 33 ILL. L. REV.
517; 2 BONBRIGHT, VALUATION OF PROPERTY, PP. 1094 ET SEQ. IN THE SECOND
PLACE, WHEN PROPERTY IS TAKEN UNDER THE POWER OF EMINENT DOMAIN THE
OWNER IS "ENTITLED TO THE FULL MONEY EQUIVALENT OF THE PROPERTY TAKEN,
AND THEREBY TO BE PUT IN AS GOOD POSITION PECUNIARILY AS IT WOULD HAVE
OCCUPIED IF ITS PROPERTY HAD NOT BEEN TAKEN."  UNITED STATES V. NEW
RIVER COLLIERIES CO., 262 U.S. 341, 343.  BUT IN RATE-MAKING, THE OWNER
DOES NOT HAVE ANY SUCH PROTECTION.  WE KNOW, WITHOUT ATTEMPTING ANY
VALUATION, THAT IF EARNINGS ARE REDUCED THE VALUE WILL BE LESS.  BUT
THAT DOES NOT STAY THE HAND OF THE LEGISLATURE OR ITS ADMINISTRATIVE
AGENCY IN MAKING RATE REDUCTIONS.  AS WE HAVE SAID, RATE-MAKING IS ONE
SPECIES OF PRICE-FIXING.  PRICE-FIXING, LIKE OTHER FORMS OF SOCIAL
LEGISLATION, MAY WELL DIMINISH THE VALUE OF THE PROPERTY WHICH IS
REGULATED.  BUT THAT IS NO OBSTACLE TO ITS VALIDITY.  AS STATED BY MR.
JUSTICE HOLMES IN BLOCK V. HIRSH, 256 U.S. 135, 155:  "THE FACT THAT
TANGIBLE PROPERTY IS ALSO VISIBLE TENDS TO GIVE A RIGIDITY TO OUR
CONCEPTION OF OUR RIGHTS IN IT THAT WE DO NOT ATTACH TO OTHERS LESS
CONCRETELY CLOTHED.  BUT THE NOTION THAT THE FORMER ARE EXEMPT FROM THE
LEGISLATIVE MODIFICATION REQUIRED FROM TIME TO TIME IN CIVILIZED LIFE
IS CONTRADICTED NOT ONLY BY THE DOCTRINE OF EMINENT DOMAIN, UNDER WHICH
WHAT IS TAKEN IS PAID FOR, BUT BY THAT OF THE POLICE POWER IN ITS
PROPER SENSE, UNDER WHICH PROPERTY RIGHTS MAY BE CUT DOWN, AND TO THAT
EXTENT TAKEN, WITHOUT PAY."  SOMEWHAT THE SAME VIEW WAS EXPRESSED IN
NEBBIA V. NEW YORK, 291 U.S. 502, 532, WHERE THIS COURT SAID:  "THE DUE
PROCESS CLAUSE MAKES NO MENTION OF SALES OR OF PRICES ANY MORE THAN IT
SPEAKS OF BUSINESS OR CONTRACTS OR BUILDINGS OR OTHER INCIDENTS OF
PROPERTY.  THE THOUGHT SEEMS NEVERTHELESS TO HAVE PERSISTED THAT THERE
IS SOMETHING PECULIARLY SACROSANCT ABOUT THE PRICE ONE MAY CHARGE FOR
WHAT HE MAKES OR SELLS, AND THAT, HOWEVER ABLE TO REGULATE OTHER
ELEMENTS OF MANUFACTURE OR TRADE, WITH INCIDENTAL EFFECT UPON PRICE,
THE STATE IS INCAPABLE OF DIRECTLY CONTROLLING THE PRICE ITSELF.  THIS
VIEW WAS NEGATIVED MANY YEARS AGO.  MUNN V. ILLINOIS, 94 U.S. 113." 
EXPLICIT RECOGNITION OF THESE PRINCIPLES WILL PLACE THE PROBLEMS OF
RATE-MAKING IN THEIR PROPER SETTING UNDER THIS STATUTE. 

(2)  THE RULE OF SMYTH V. AMES, AS CONSTRUED AND APPLIED, DIRECTS THE
RATE-MAKING BODY IN FORMING ITS JUDGMENT AS TO "FAIR VALUE" TO TAKE
INTO CONSIDERATION VARIOUS ELEMENTS - CAPITALIZATION, BOOK COST, ACTUAL
COST, PRUDENT INVESTMENT, REPRODUCTION COST.  SEE MR. JUSTICE BRANDEIS,
SOUTHWESTERN BELL TELEPHONE CO. V. PUBLIC SERVICE COMMISSION, SUPRA,
PP. 294-295.  BUT AS STATED BY MR. JUSTICE BRANDEIS:  "OBVIOUSLY
'VALUE' CANNOT BE A COMPOSITE OF ALL THESE ELEMENTS.  NOR CAN IT BE
ARRIVED AT ON ALL THESE BASES.  THEY ARE VERY DIFFERENT; AND MUST, WHEN
APPLIED IN A PARTICULAR CASE, LEAD TO WIDELY DIFFERENT RESULTS.  THE
RULE OF SMYTH V. AMES, AS INTERPRETED AND APPLIED, MEANS MERELY THAT
ALL MUST BE CONSIDERED.  WHAT, IF ANY, WEIGHT SHALL BE GIVEN TO ANY
ONE, MUST PRACTICALLY REST IN THE JUDICIAL DISCRETION OF THE TRIBUNAL
WHICH MAKES THE DETERMINATION.  WHETHER A DESIRED RESULT IS REACHED MAY
DEPEND UPON HOW ANY ONE OF MANY ELEMENTS IS TREATED."  ID., PP. 295
296.  THE RISKS OF NOT GIVING WEIGHT TO REPRODUCTION COST HAVE BEEN
GREAT.  SOUTHWESTERN BELL TELEPHONE CO. V. PUBLIC SERVICE COMMISSION,
SUPRA; ST. LOUIS & O'FALLON RY. CO. V. UNITED STATES, 279 U.S. 461. 
THE HAVOC RAISED BY INSISTENCE ON REPRODUCTION COST IS NOW A MATTER OF
HISTORICAL RECORD.  MR. JUSTICE BRANDEIS IN THE SOUTHWESTERN BELL
TELEPHONE CASE DEMONSTRATED HOW THE RULE OF SMYTH V. AMES HAS SERIOUSLY
IMPAIRED THE POWER OF RATE-REGULATION AND HOW THE "FAIR VALUE" RULE HAS
PROVED TO BE UNWORKABLE BY REASON OF THE TIME REQUIRED TO MAKE THE
VALUATIONS, THE HEAVY EXPENSE INVOLVED, AND THE UNRELIABILITY OF THE
RESULTS OBTAINED.  FN6  AND SEE MR. JUSTICE BRANDEIS CONCURRING, ST.
JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 73; DISSENTING
OPINION, MCCART V. INDIANAPOLIS WATER CO., 302 U.S. 419, 423 ET SEQ.;
MR. JUSTICE STONE DISSENTING, WEST V. CHESAPEAKE & POTOMAC TELEPHONE
CO., SUPRA.  THE RESULT OF THIS COURT'S RULINGS IN RATE CASES SINCE
SMYTH V. AMES HAS RECENTLY BEEN SUMMARIZED AS FOLLOWS:  "UNDER THE
INFLUENCE OF THESE PRECEDENTS, COMMISSION REGULATION HAS BECOME SO
CUMBERSOME AND SO INEFFECTIVE THAT IT MAY BE SAID, WITH ONLY SLIGHT
EXAGGERATION, TO HAVE BROKEN DOWN.  EVEN THE INVESTOR N7, ON WHOSE
BEHALF THE CONSTITUTIONAL SAFEGUARDS HAVE BEEN DEVELOPED, HAS RECEIVED
NO PROTECTION AGAINST THE REBOUNDS FROM THE INFLATED STOCK-MARKET
PRICES THAT ARE STIMULATED BY THE 'FAIR-VALUE' DOCTRINE."  BONBRIGHT,
OP. CIT., P. 1154. 

AS WE READ THE OPINION OF THE COURT, THE COMMISSION IS NOW FREED FROM
THE COMPULSION OF ADMITTING EVIDENCE ON REPRODUCTION COST OR OF GIVING
ANY WEIGHT TO THAT ELEMENT OF "FAIR VALUE."  THE COMMISSION MAY NOW
ADOPT, IF IT CHOOSES, PRUDENT INVESTMENT AS A RATE BASE - THE BASE LONG
ADVOCATED BY MR. JUSTICE BRANDEIS.  AND FOR THE REASONS STATED BY MR.
JUSTICE BRANDEIS IN THE SOUTHWESTERN BELL TELEPHONE CASE, THERE COULD
BE NO CONSTITUTIONAL OBJECTION IF THE COMMISSION ADHERED TO THAT
FORMULA AND REJECTED ALL OTHERS. 

YET IT IS IMPORTANT TO NOTE, AS WE HAVE INDICATED, THAT CONGRESS HAS
MERELY PROVIDED IN SEC. 5 OF THE NATURAL GAS ACT THAT THE RATES FIXED
BY THE COMMISSION SHALL BE "JUST AND REASONABLE."  IT HAS PROVIDED NO
STANDARD BEYOND THAT.  CONGRESS, TO BE SURE, HAS PROVIDED FOR JUDICIAL
REVIEW.  BUT SEC. 19(B) STATES THAT THE "FINDING OF THE COMMISSION AS
TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE
CONCLUSIVE."  IN VIEW OF THESE PROVISIONS, WE DO NOT THINK IT IS
PERMISSIBLE FOR THE COURTS TO CONCERN THEMSELVES WITH ANY ISSUES AS TO
THE ECONOMIC MERITS OF A RATE BASE.  THE COMMISSION HAS A BROAD AREA OF
DISCRETION FOR SELECTION OF AN APPROPRIATE RATE BASE.  THE REQUIREMENTS
OF "JUST AND REASONABLE" EMBRACE, AMONG OTHER FACTORS, TWO PHASES OF
THE PUBLIC INTEREST:  (1) THE INVESTOR INTEREST; (2) THE CONSUMER
INTEREST.  THE INVESTOR INTEREST IS ADEQUATELY SERVED IF THE UTILITY IS
ALLOWED THE OPPORTUNITY TO EARN THE COST OF THE SERVICE.  THAT COST HAS
BEEN DEFINED BY MR. JUSTICE BRANDEIS AS FOLLOWS:  "COST INCLUDES NOT
ONLY OPERATING EXPENSES, BUT ALSO CAPITAL CHARGES.  CAPITAL CHARGES
COVER THE ALLOWANCE, BY WAY OF INTEREST, FOR THE USE OF THE CAPITAL,
WHATEVER THE NATURE OF THE SECURITY ISSUED THEREFOR; THE ALLOWANCE FOR
RISK INCURRED; AND ENOUGH MORE TO ATTRACT CAPITAL."  SOUTHWESTERN BELL
TELEPHONE CO. V. PUBLIC SERVICE COMMISSION, SUPRA, 262 U.S. AT P. 291. 
IRRESPECTIVE OF WHAT THE RETURN MAY BE ON "FAIR VALUE," IF THE RATE
PERMITS THE COMPANY TO OPERATE SUCCESSFULLY AND TO ATTRACT CAPITAL ALL
QUESTIONS AS TO "JUST AND REASONABLE" ARE AT AN END SO FAR AS THE
INVESTOR INTEREST IS CONCERNED.  VARIOUS ROUTES TO THAT END MAY BE
WORKED OUT BY THE EXPERT ADMINISTRATORS CHARGED WITH THE DUTY OF
REGULATION.  IT IS NOT THE FUNCTION OF THE COURTS TO PRESCRIBE WHAT
FORMULA SHOULD BE USED.  THE FACT THAT ONE MAY BE FAIR TO INVESTORS
DOES NOT MEAN THAT ANOTHER WOULD BE UNFAIR.  THE DECISION IN EACH CASE
MUST TURN ON CONSIDERATIONS OF JUSTNESS AND FAIRNESS WHICH CANNOT BE
CAST INTO A LEGALISTIC FORMULA.  THE RATE OF RETURN TO BE ALLOWED IN
ANY GIVEN CASE CALLS FOR A HIGHLY EXPERT JUDGMENT.  THAT JUDGMENT HAS
BEEN ENTRUSTED TO THE COMMISSION.  THERE IT SHOULD REST. 

ONE CAVEAT, HOWEVER, SHOULD BE ENTERED.  THE CONSUMER INTEREST CANNOT
BE DISREGARDED IN DETERMINING WHAT IS A "JUST AND REASONABLE" RATE. 
CONCEIVABLY, A RETURN TO THE COMPANY OF THE COST OF THE SERVICE MIGHT
NOT BE "JUST AND REASONABLE" TO THE PUBLIC.  THE CORRECT PRINCIPLE WAS
ANNOUNCED BY THIS COURT IN COVINGTON & LEXINGTON TURNPIKE CO. V.
SANDFORD, 164 U.S. 578, 596:  "IT CANNOT BE SAID THAT A CORPORATION IS
ENTITLED, AS OF RIGHT, AND WITHOUT REFERENCE TO THE INTERESTS OF THE
PUBLIC, TO REALIZE A GIVEN PER CENT UPON ITS CAPITAL STOCK.  WHEN THE
QUESTION ARISES WHETHER THE LEGISLATURE HAS EXCEEDED ITS CONSTITUTIONAL
POWER IN PRESCRIBING RATES TO BE CHARGED BY A CORPORATION CONTROLLING A
PUBLIC HIGHWAY, STOCKHOLDERS ARE NOT THE ONLY PERSONS WHOSE RIGHTS OR
INTERESTS ARE TO BE CONSIDERED.  THE RIGHTS OF THE PUBLIC ARE NOT TO BE
IGNORED.  IT IS ALLEGED HERE THAT THE RATES PRESCRIBED ARE UNREASONABLE
AND UNJUST TO THE COMPANY AND ITS STOCKHOLDERS.  BUT THAT INVOLVES AN
INQUIRY AS TO WHAT IS REASONABLE AND JUST FOR THE PUBLIC.  IF THE
ESTABLISHING OF NEW LINES OF TRANSPORTATION SHOULD CAUSE A DIMINUTION
IN THE NUMBER OF THOSE WHO NEED TO USE A TURNPIKE ROAD, AND,
CONSEQUENTLY, A DIMINUTION IN THE TOLLS COLLECTED, THAT IS NOT, IN
ITSELF, A SUFFICIENT REASON WHY THE CORPORATION, OPERATING THE ROAD,
SHOULD BE ALLOWED TO MAINTAIN RATES THAT WOULD BE UNJUST TO THOSE WHO
MUST OR DO USE ITS PROPERTY.  THE PUBLIC CANNOT PROPERLY BE SUBJECTED
TO UNREASONABLE RATES IN ORDER SIMPLY THAT STOCKHOLDERS MAY EARN
DIVIDENDS."  CF. CHICAGO & GRAND TRUNK RY. CO. V. WELLMAN, 143 U.S.
339, 345-346; UNITED GAS CO. V. TEXAS, 303 U.S. 123, 150-151. 

THIS PROBLEM CARRIES INTO A FIELD NOT NECESSARY TO DEVELOP HERE.  IT
REEMPHASIZES, HOWEVER, THAT THE INVESTOR INTEREST IS NOT THE SOLE
INTEREST FOR PROTECTION.  THE INVESTOR AND CONSUMER INTERESTS MAY SO
COLLIDE AS TO WARRANT THE RATE-MAKING BODY IN CONCLUDING THAT A RETURN
ON HISTORICAL COST OR PRUDENT INVESTMENT, THOUGH FAIR TO INVESTORS,
WOULD BE GROSSLY UNFAIR TO THE CONSUMERS.  THE POSSIBILITY OF THAT
COLLISION REINFORCES THE VIEW THAT THE PROBLEM OF RATE-MAKING IS FOR
THE ADMINISTRATIVE EXPERTS, NOT THE COURTS, AND THAT THE EX POST FACTO
FUNCTION PREVIOUSLY PERFORMED BY THE COURTS SHOULD BE REDUCED TO THE
BAREST MINIMUM WHICH IS CONSISTENT WITH THE STATUTORY MANDATE FOR
JUDICIAL REVIEW.  THAT REVIEW SHOULD BE AS CONFINED AND RESTRICTED AS
THE REVIEW, UNDER SIMILAR STATUTES, OF ORDERS OF OTHER ADMINISTRATIVE
AGENCIES. 

FN1  SOME OF THESE CASES AROSE UNDER THE FIFTH, SOME UNDER THE
FOURTEENTH, AMENDMENT.  NEBBIA V. NEW YORK, 291 U.S. 502(STATE STATUTE
AUTHORIZING A MILK CONTROL BOARD TO FIX MINIMUM AND MAXIMUM RETAIL
PRICES FOR MILK); MULFORD V. SMITH, 307 U.S. 38(FEDERAL STATUTE
IMPOSING PENALTIES ON TOBACCO AUCTION WAREHOUSEMEN FOR MARKETING
TOBACCO IN EXCESS OF PRESCRIBED QUOTA); UNITED STATES V. ROCK ROYAL CO
OP., 307 U.S. 533(FEDERAL STATUTE AUTHORIZING SECRETARY OF AGRICULTURE
TO FIX MINIMUM PRICES TO BE PAID PRODUCERS FOR MILK SOLD TO DEALERS);
SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381(FEDERAL STATUTE AUTHORIZING
BITUMINOUS COAL COMMISSION TO FIX MAXIMUM AND MINIMUM PRICES FOR
BITUMINOUS COAL); UNITED STATES V. DARBY, 312 U.S. 100(FEDERAL STATUTE
FIXING MINIMUM WAGES (AND MAXIMUM HOURS) FOR EMPLOYEES ENGAGED IN
PRODUCTION OF GOODS FOR INTERSTATE COMMERCE); OLSEN V. NEBRASKA, 313
U.S. 236(STATE STATUTE FIXING MAXIMUM COMPENSATION TO BE COLLECTED BY
PRIVATE EMPLOYMENT AGENCIES). 

FN2  SEE POLK COMPANY V. GLOVER, 305 U.S. 5, 12-19.  CF. CHAMBERS V.
FLORIDA, 309 U.S. 227, 235-238. 

FN3  "AS THE DECISIONS NOW STAND, I SEE HARDLY ANY LIMIT BUT THE SKY
TO THE INVALIDATING OF THOSE RIGHTS IF THEY HAPPEN TO STRIKE A MAJORITY
OF THIS COURT AS FOR ANY REASON UNDESIRABLE."  BALDWIN V. MISSOURI 281
U.S. 586, 595. 

FN4  TO HOLD THAT THE FOURTEENTH AMENDMENT WAS INTENDED TO AND DID
PROVIDE PROTECTION FROM STATE INVASIONS OF THE RIGHT OF FREE SPEECH AND
OTHER CLEARLY DEFINED PROTECTIONS CONTAINED IN THE BILL OF RIGHTS,
DRIVERS UNION V. MEADOWMOOR CO., 312 U.S. 287, 301-302, IS QUITE
DIFFERENT FROM HOLDING THAT "DUE PROCESS," AN HISTORICAL EXPRESSION
RELATING TO PROCEDURE, CHAMBERS V. FLORIDA, SUPRA, CONFERS A BROAD
JUDICIAL POWER TO INVALIDATE ALL LEGISLATION WHICH SEEMS "UNREASONABLE"
TO COURTS.  IN THE ONE INSTANCE, COURTS PROCEEDING WITHIN CLEARLY
MARKED CONSTITUTIONAL BOUNDARIES SEEK TO EXECUTE POLICIES WRITTEN INTO
THE CONSTITUTION; IN THE OTHER, THEY ROAM AT WILL IN THE LIMITLESS AREA
OF THEIR OWN BELIEFS AS TO REASONABLENESS AND ACTUALLY SELECT POLICIES,
A RESPONSIBILITY WHICH THE CONSTITUTION ENTRUSTS TO THE LEGISLATIVE
REPRESENTATIVES OF THE PEOPLE. 

FN5  MCCART V. INDIANAPOLIS WATER CO., SUPRA. 

FN6  "THE RELATION BETWEEN THE PUBLIC UTILITY AND THE COMMUNITY
CANNOT BE EXPRESSED IN TERMS OF A SIMPLE, QUANTITATIVELY ASCERTAINABLE
FACT, FOR THE RELATION INVOLVES NUMEROUS AND COMPLEX FACTORS WHICH
DEPEND ON COMPROMISE AND PRACTICAL ADJUSTMENT RATHER THAN ON DEDUCTIVE
LOGIC.  THE WHOLE DOCTRINE OF SMYTH V. AMES RESTS UPON A GIGANTIC
ILLUSION.  THE FACT WHICH FOR TWENTY YEARS THE COURT HAS BEEN VAINLY
TRYING TO FIND DOES NOT EXIST.  'FAIR VALUE' MUST BE SHELVED AMONG THE
GREAT JURISTIC MYTHS OF HISTORY, WITH THE LAW OF NATURE AND THE SOCIAL
CONTRACT.  AS A PRACTICAL CONCEPT, FROM WHICH PRACTICAL CONCLUSIONS CAN
BE DRAWN, IT IS VALUELESS."  HENDERSON, RAILWAY VALUATION AND THE
COURTS, 33 HARV. L. REV. 1031, 1051. 

FN7  "SUCH VALUATION PROCEEDINGS, AS HERETOFORE CONDUCTED, ARE
EXCESSIVELY COSTLY, REQUIRE A LONG PERIOD OF TIME, AFFECT ADVERSELY THE
CORPORATION'S CREDIT, INTERFERE WITH ITS FINANCING UPON FAVORABLE
TERMS, AND FREQUENTLY CAUSE THE POSTPONEMENT OF EXTENSIONS AND
IMPROVEMENTS TO THE GREAT DETRIMENT OF THE PUBLIC.  UNLESS AND UNTIL
THERE IS SOME CHANGE IN THE LEGAL PRINCIPLES WHICH MUST BE APPLIED IN
DETERMINING FAIR VALUE, HOWEVER, THE INDUSTRY CANNOT ESCAPE FROM THIS
SITUATION."  REPORT OF THE COMMITTEE ON VALUATION, AMERICAN ELECTRIC
RAILWAY ASSOC., 1924, P. 20. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

I WHOLLY AGREE WITH THE OPINION OF THE CHIEF JUSTICE. 

CONGRESS HAS IN THE NATURAL GAS ACT SPECIFICALLY CAST UPON COURTS THE
DUTY TO REVIEW ORDERS OF THE FEDERAL POWER COMMISSION FIXING "JUST AND
REASONABLE" RATES.  THE CONSTITUTIONAL SCOPE OF JUDICIAL REVIEW OF RATE
ORDERS WHERE CONGRESS HAS DENIED JUDICIAL REVIEW IS THEREFORE NOT IN
ISSUE IN THIS CASE.  DISCUSSION OF THE PROBLEM IS ACADEMIC, ESPECIALLY
SINCE WE ALL CONCUR IN THE CHIEF JUSTICE'S CONCLUSIONS ON THE RATE
ORDER HERE MADE BY THE COMMISSION.  BUT SINCE THE ISSUE HAS BEEN
STIRRED, I ADD A FEW WORDS BECAUSE LEGAL HISTORY STILL HAS ITS CLAIMS. 

WHILE THE DOCTRINE OF "CONFISCATION," AS A LIMITATION TO BE ENFORCED
BY THE JUDICIARY UPON THE LEGISLATIVE POWER TO FIX UTILITY RATES, WAS
FIRST APPLIED IN CHICAGO, M. & ST. P. RY. CO. V. MINNESOTA, 134 U.S.
418, THAT DECISION FOLLOWED PRINCIPLES EXPOUNDED IN STONE V. FARMERS'
LOAN & TRUST CO., 116 U.S. 307, ESPECIALLY AT 331.  SEE 134 U.S. AT 455
56.  MR. CHIEF JUSTICE WAITE, WHO DELIVERED THE OPINION IN THE STONE
CASE AS WELL AS IN THE EARLIER DECISION IN MUNN V. ILLINOIS, 94 U.S.
113, WAS THEREFORE THE AUTHOR OF THE DOCTRINE OF "CONFISCATION" AND ITS
COROLLARY, "JUDICIAL REVIEW."  HIS VIEW WAS SHARED BY SUCH STOUT
RESPECTERS OF LEGISLATIVE POWER OVER UTILITIES AS MR. JUSTICE MILLER
(SEE FAIRMAN, MR. JUSTICE MILLER AND THE SUPREME COURT, PASSIM), MR.
JUSTICE BRADLEY (SEE HIS DISSENT IN CHICAGO, M. & ST. P. RY. CO. V.
MINNESOTA, 134 U.S. 418, 461), AND MR. JUSTICE HARLAN.  THE LATTER,
INDEED, AGREED WITH MR. JUSTICE FIELD THAT THE REGULATORY POWER
EXERCISED IN THE RAILROAD COMMISSION CASES, 116 U.S. 307, CONSTITUTED
AN IMPAIRMENT OF THE OBLIGATION OF CONTRACT.  BY NO ONE WAS THE
DOCTRINE OF JUDICIAL REVIEW MORE EMPHATICALLY ACCEPTED, AND APPLIED IN
FAVOR OF A PUBLIC UTILITY, THAN BY MR. JUSTICE HARLAN IN THE DECISION
AND OPINION IN COVINGTON & LEXINGTON TURNPIKE CO. V. SANDFORD, 164 U.S.
578, ESPECIALLY AT 591-95. 

BUT WHILE THIS HISTORIC CONTROVERSY OVER THE CONSTITUTIONAL
LIMITATIONS UPON THE POWER OF COURTS IN RATE CASES IS NOT PRESENTED
HERE, IF IT BE DEEMED THAT COURTS HAVE NOTHING TO DO WITH RATE-MAKING
BECAUSE THAT TASK WAS COMMITTED EXCLUSIVELY TO THE COMMISSION, SURELY
IT IS A USURPATION OF THE COMMISSION'S FUNCTION TO TELL IT HOW IT
SHOULD DISCHARGE THIS TASK AND HOW IT SHOULD PROTECT THE VARIOUS
INTERESTS THAT ARE DEEMED TO BE IN ITS, AND NOT IN OUR, KEEPING. 
..END :














PUERTO RICO V. RUSSELL & CO., 315 U.S. 610 


NO. 95.  ARGUED FEBRUARY 3, 4, 1942.  - DECIDED MARCH 16, 1942.  - 118
F.2D 225, AFFIRMED. 


IN AID OF THE OPERATION OF AN IRRIGATION DISTRICT ON A STREAM IN
PUERTO RICO, THE INSULAR COMMISSIONER OF THE INTERIOR MADE CONTRACTS
WITH A COMPANY OWNING RIGHTS TO DIVERT WATER FROM THE STREAM FOR THE
IRRIGATION OF LANDS NOT EMBRACED IN THE DISTRICT, WHEREBY, IN
CONSIDERATION OF A SUSPENSION OF THE COMPANY'S WATER RIGHTS IN CERTAIN
PARTICULARS, THE INSULAR GOVERNMENT UNDERTOOK TO DELIVER TO IT AT ITS
INTAKES SPECIFIED QUANTITIES OF WATER REGULARLY, AS THE FAIR EQUIVALENT
OF THE RIGHTS SUSPENDED.  HELD, THAT THE COMMISSIONER HAD STATUTORY
AUTHORITY TO MAKE THE CONTRACTS AND THAT A LATER STATUTE WHICH SOUGHT
TO RECOUP PART OF THE COST OF MAINTAINING AND OPERATING THE DISTRICT
SYSTEM BY IMPOSING ANNUAL ASSESSMENTS, ERRONEOUSLY CALLED "TAXES," ON
THE COMPANY'S LANDS, IMPAIRED THE OBLIGATION OF THE CONTRACTS IN
VIOLATION OF THE INSULAR ORGANIC ACT.  P. 616. 

PUERTO RICO V. RUSSELL & CO., S. EN C. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 314 U.S. 589, TO REVIEW A JUDGMENT WHICH, REVERSING A
JUDGMENT OF THE SUPREME COURT OF PUERTO RICO, 56 P.R. DEC. 343,
REINSTATED A JUDGMENT OF THE INSULAR DISTRICT COURT DISMISSING THE
COMPLAINT IN AN ACTION BROUGHT BY PUERTO RICO TO RECOVER SUMS CLAIMED
AS TAXES.  FOR EARLIER PHASES SEE, 21 F.2D 1012; 60 F.2D 10; 288 U.S.
476. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER A STATUTE OF PUERTO RICO IMPAIRS
THE OBLIGATION OF CERTAIN CONTRACTS IN VIOLATION OF THE ISLAND'S
ORGANIC LAW.  FN1 

THE RESPONDENT'S PREDECESSOR IN TITLE, FORTUNA ESTATES, AS OWNER OR
LESSEE OF LANDS ADJACENT TO THE JACAGUAS RIVER, ENJOYED UNDER SPANISH
LAW, AND RESPONDENT, AS SUCCESSOR, STILL ENJOYS, RIGHTS APPURTENANT TO
THE LANDS TO DRAW FROM THE RIVER 12,612.1 ACRE-FEET OF WATER PER YEAR
FOR IRRIGATION. 

PUERTO RICO ADOPTED A LAW IN 1908  FN2  WHICH AUTHORIZED AN
IRRIGATION SYSTEM, AS PART OF WHICH A DAM WAS TO BE ERECTED IN JACAGUAS
RIVER ABOVE FORTUNA'S INTAKES.  FORTUNA'S LANDS WERE NOT WITHIN OR A
PART OF THE IRRIGATION DISTRICT.  ALTHOUGH THE OPERATION OF THE SYSTEM
WOULD INTERFERE WITH FORTUNA'S WATER RIGHTS, THEY WERE NOT CONDEMNED,
AS THE STATUTE PERMITTED, NOR WERE THEY VOLUNTARILY SURRENDERED. 

BY AN AMENDATORY LAW ADOPTED IN 1913,  FN3  IT WAS PROVIDED:  "IN THE
CASE OF ANY LAND CARRYING A WATER RIGHT OR CONCESSION OF WHICH THE
SOURCE OF SUPPLY IS DESTROYED OR IMPAIRED BY THE CONSTRUCTION OR
OPERATION OF THE IRRIGATION SYSTEM, WHICH SHALL NOT HAVE BEEN
RELINQUISHED OR SURRENDERED TO THE PEOPLE OF PORTO RICO, SUCH LAND
SHALL BE ENTITLED TO RECEIVE FROM THE IRRIGATION SYSTEM AN AMOUNT OF
WATER WHICH IS THE REASONABLE EQUIVALENT IN VALUE OF THE SAID WATER
RIGHT OR CONCESSION."  THIS ACT EMPOWERED THE COMMISSIONER OF THE
INTERIOR TO MAKE AGREEMENTS WITH HOLDERS OF SUCH RIGHTS, FIXING THE
AMOUNT, AND THE TIME, PLACE, AND CONDITIONS OF DELIVERY, OF WATER TO BE
RECEIVED AS THE EQUIVALENT OF THE RIGHTS SUSPENDED. 

IN THE EXERCISE OF THIS AUTHORITY THE COMMISSIONER EXECUTED CONTRACTS
WITH FORTUNA WHICH CALLED FOR THE SUSPENSION OF ITS RIGHTS APPURTENANT
TO TWO LARGE TRACTS DURING THE LIFE OF THE CONTRACTS AND ASSURED
DELIVERY OF A SPECIFIED AMOUNT OF WATER AT FORTUNA'S INTAKES AS THE
FAIR EQUIVALENT OF THE RIGHTS SUSPENDED. 

EACH CONTRACT ENUMERATED THE RIGHTS TO TAKE WATER APPURTENANT TO A
DESCRIBED TRACT OF LAND WHICH WOULD BE IMPAIRED OR INTERRUPTED BY THE
OPERATION OF THE IRRIGATION SYSTEM; RECITED THAT THE AMOUNT OF WATER
TAKEN BY FORTUNA UNDER ITS RIGHTS VARIED THROUGHOUT THE YEAR, DUE TO
DIFFERENCES IN RAINFALL, SO THAT IT WAS IMPOSSIBLE TO DETERMINE IN
ADVANCE THE AMOUNT OF WATER TO WHICH IT WOULD BE ENTITLED IN ANY GIVEN
PERIOD; AND THAT PORTO RICO WAS WILLING TO DELIVER FROM THE JACAGUAS
RIVER THE WATER TO WHICH FORTUNA WAS ENTITLED, BUT, IN ORDER TO MAKE
THE OPERATION OF THE SYSTEM MORE CERTAIN, DESIRED TO AGREE UPON A FIXED
AND REGULAR AMOUNT WHICH SHOULD BE RECEIVED BY FORTUNA AS THE FAIR
EQUIVALENT IN VALUE FOR IRRIGATION PURPOSES OF THE WATER IT WOULD
ORDINARILY TAKE AND USE UNDER ITS EXISTING RIGHTS. 

THE CONTRACT THEN STATED THE AGREEMENT OF THE PARTIES AS TO THE
QUANTITIES OF WATER WHICH, DELIVERED IN EQUAL DAILY INSTALMENTS, WERE
TO BE CONSIDERED SUCH FAIR EQUIVALENTS AND THE PETITIONER COVENANTED TO
DELIVER THESE QUANTITIES TO FORTUNA.  IT WAS ALSO AGREED THAT FORTUNA
MIGHT EXERCISE ITS PREEXISTING RIGHTS FOR TEN DAYS IN EACH YEAR TO
PREVENT THEIR LOSS BY NON-USER. 

UNDER THE IRRIGATION LAW, LANDS IN A DISTRICT WERE SUBJECTED TO A
UNIFORM ANNUAL ASSESSMENT PER ACRE TO DISCHARGE THE COST OF
CONSTRUCTION, MAINTENANCE, AND OPERATION OF THE SYSTEM.  SALES WERE
ALSO MADE OF SURPLUS WATERS AND THE PROCEEDS USED FOR MAINTENANCE. 

SHORTLY AFTER THE CONTRACTS WERE MADE, A CONTROVERSY AROSE BETWEEN
PETITIONER AND RESPONDENT WITH RESPECT TO PUERTO RICO'S RIGHT TO SELL
SURPLUS WATERS.  LITIGATION ENSUED WHICH TERMINATED IN A DECREE
RESTRAINING THE INSULAR GOVERNMENT FROM DIVERTING CERTAIN SURPLUS
WATERS TO WHICH THE RESPONDENT WAS HELD TO BE ENTITLED UNDER THE
CONTRACTS.  THE DECISION ALSO UPHELD THE VALIDITY OF THE CONTRACTS. 
FN4 

THEREUPON THE LEGISLATURE ADOPTED, JULY 8, 1921, "AN ACT FIXING A TAX
ON CERTAIN LANDS USING WATER FROM THE SOUTHERN COAST PUBLIC IRRIGATION
SYSTEM, ON WHICH LANDS NO TAX WHATEVER WAS LEVIED UNDER THE PUBLIC
IRRIGATION LAW, AND FOR OTHER PURPOSES."  FN5  THIS IS THE STATUTE
ENFORCEMENT OF WHICH IS ASSERTED TO IMPAIR THE OBLIGATION OF THE
CONTRACTS.  BY THIS ACT A SPECIAL TAX IS IMPOSED ON ALL LANDS SUPPLIED
WHICH, UNDER EXISTING LAW, CONTRIBUTE NOTHING TO THE EXPENSE OF THE
MAINTENANCE OF THE SYSTEM.  THE TREASURER OF PUERTO RICO IS DIRECTED TO
COMPUTE THE TAX BY FINDING THE AGGREGATE ACREAGE RECEIVING WATER FROM
THE SYSTEM INCLUDING LANDS, LIKE THOSE OF RESPONDENT, OUTSIDE THE
DISTRICT BUT RECEIVING THE EQUIVALENTS OF THEIR PREEXISTING RIGHTS
UNDER CONTRACTS.  HE IS TO ASSESS A PRORATA SHARE OF THE TOTAL EXPENSE
AGAINST THE LANDS OF RESPONDENT AND OTHERS SIMILARLY CIRCUMSTANCED. 
THE ACT, AS IS ADMITTED, WAS AIMED ONLY AT THOSE WHO, LIKE RESPONDENT,
HAD CONTRACTED FOR THE RECEIPT OF WATER IN LIEU OF THAT TO WHICH THEY
WERE OF RIGHT ENTITLED AND WHOSE LANDS WERE NOT A PART OF THE
IRRIGATION DISTRICT. 

ACTION WAS INSTITUTED BY PETITIONER IN AN INSULAR COURT FOR THE
RECOVERY OF SEVERAL YEARS TAXES SO IMPOSED.  FN6  THE CAUSE WAS REMOVED
TO THE UNITED STATES DISTRICT COURT, WHERE A MOTION TO REMAND WAS
DENIED AND A JUDGMENT ENTERED FOR THE RESPONDENT ON THE MERITS.  THE
JUDGMENT WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS FOR THE FIRST
CIRCUIT,  FN7  BUT WAS REVERSED BY THIS COURT FOR WANT OF DIVERSITY OF
CITIZENSHIP ON WHICH JURISDICTION OF THE FEDERAL COURTS DEPENDED.  FN8 

AFTER REMAND, THE CASE WAS TRIED IN THE INSULAR DISTRICT COURT AND
THE COMPLAINT WAS DISMISSED ON THE MERITS, ON THE GROUND THAT ACT NO.
49, OF 1921, WAS AN INVALID IMPAIRMENT OF THE OBLIGATION OF THE 1914
CONTRACTS.  THE SUPREME COURT OF PUERTO RICO REVERSED AND RENDERED
JUDGMENT FOR THE PETITIONER.  FN9  THE CIRCUIT COURT OF APPEALS IN TURN
REVERSED AND REINSTATED THE JUDGMENT OF THE INSULAR DISTRICT COURT. 
FN10  WE GRANTED CERTIORARI, AS THE CASE PRESENTS AN IMPORTANT QUESTION
ARISING UNDER THE INSULAR ORGANIC ACT.  WE HOLD THAT THE JUDGMENT OF
THE CIRCUIT COURT OF APPEALS WAS RIGHT. 

BY THE ACT OF 1908,  FN11  THE PEOPLE OF PUERTO RICO UNDERTOOK THE
CONSTRUCTION OF A PUBLIC IRRIGATION SYSTEM.  THIS NECESSITATED THE
ERECTION OF A DAM FOR IMPOUNDING AND STORAGE OF PART OF THE WATERS OF
THE JACAGUAS RIVER ABOVE THE RESPONDENT'S INTAKES, AND THE CREATION OF
AN IRRIGATION DISTRICT.  THE STATUTE RECOGNIZED THE NECESSITY OF
PROVIDING A METHOD FOR THE ACQUISITION OF THE RIGHTS OF RIPARIAN OWNERS
WHOSE LAND LAY BELOW THE DAM.  SECTION 12 AUTHORIZED THE CONDEMNATION
OF EXISTING WATER RIGHTS AND THE PAYMENT OF THEIR FAIR VALUE TO THE
OWNERS.  BY THE AMENDATORY ACT OF 1913, THE OWNERS OF LANDS WHICH FELL
WITHIN THE IRRIGATION DISTRICT COULD RELEASE THEIR PREEXISTING RIGHTS,
HAVE THEM VALUED, AND BE PAID THE VALUE BY CREDITS AGAINST THEIR
PROPORTIONATE SHARE OF THE EXPENSE OF THE CONSTRUCTION AND OPERATION OF
THE SYSTEM.  FN12  BY SEC. 13, OWNERS OF LANDS HAVING WATER RIGHTS,
WHOSE SOURCE OF SUPPLY WOULD BE DESTROYED OR IMPAIRED BY THE
CONSTRUCTION OR OPERATION OF THE SYSTEM, WHO HAD NOT SURRENDERED OR
RELINQUISHED THEIR RIGHTS, WERE DECLARED ENTITLED TO RECEIVE FROM THE
IRRIGATION SYSTEM AN AMOUNT OF WATER WHICH WOULD BE THE REASONABLE
EQUIVALENT IN VALUE OF THE RIGHT OR CONCESSION SO DESTROYED OR
IMPAIRED.  THE COMMISSIONER WAS AUTHORIZED TO NEGOTIATE CONTRACTS TO
THIS END WITH SUCH OWNERS. 

IT IS EVIDENT THAT IT WAS THOUGHT THAT LANDS SUCH AS THOSE OF THE
RESPONDENT COULD NOT BE INCLUDED WITHIN THE PROPOSED DISTRICT.  IT IS
IDLE TO SPECULATE CONCERNING THE REASONS FOR THIS DECISION, THOUGH IT
IS CLEAR THAT IN ORDER TO REALIZE THE GOVERNMENT'S PURPOSE IT WAS
DEEMED NECESSARY TO REACH AN ACCOMMODATION CONCERNING PREEXISTING VALID
WATER RIGHTS OF LAND OWNERS WHOSE LANDS COULD NOT OR SHOULD NOT BE
INCLUDED IN THE IRRIGATION DISTRICT.  IN THE CASE OF SUCH PERSONS THE
PURPOSE WAS TO SUBSTITUTE A FAIR EQUIVALENT FOR THE RIGHTS THERETOFORE
EXERCISED.  SUCH AN ARRANGEMENT OFFERED MUTUAL ADVANTAGES TO PUERTO
RICO AND TO THE OWNERS.  WHEREAS FORTUNA HAD, PRIOR TO THE ERECTION OF
THE DAM, THE RIGHT TO TAKE OVER 12,000 ACREFEET OF WATER PER YEAR FOR
IRRIGATION, A PROPORTION OF SURPLUS WATERS, AND CERTAIN TORRENTIAL
WATERS, THE SUPPLY WAS UNEVEN AND UNCERTAIN DUE TO THE IRREGULARITY OF
RAINFALL.  IT WAS, THEREFORE, AN ADVANTAGE TO THE RESPONDENT'S
PREDECESSOR TO SURRENDER ITS MAXIMUM RIGHTS IN CONSIDERATION OF AN
AGREEMENT THAT THERE SHOULD BE DELIVERED TO IT, EQUALLY AND EVENLY
THROUGHOUT THE YEAR, SOMETHING LESS THAN THE MAXIMUM IT WAS ENTITLED TO
TAKE UNDER PREEXISTING CONDITIONS.  ON THE OTHER HAND, IT WAS AN
ADVANTAGE TO THE IRRIGATION SYSTEM THAT IT SHOULD NOT BE OBLIGED AT ANY
TIME TO DEPLETE ITS STORAGE WATERS BY FURNISHING THE RESPONDENT THE
MAXIMUM AMOUNT WHICH, IF THE WATER WERE AVAILABLE, IT WAS ENTITLED TO
RECEIVE. 

THE INSULAR SUPREME COURT HELD THAT THE EXACTION IS NOT PRECLUDED BY
THE CONTRACTS, AND WORKS NO IMPAIRMENT OF THEIR OBLIGATION.  IT HELD
THE EXACTION IS A TAX; THAT THE RIGHTS WHICH THE RESPONDENT OWNED PRIOR
TO THE CONSTRUCTION OF THE IRRIGATION SYSTEM WERE TAXABLE, AND THAT THE
PRIVILEGES IT ENJOYS UNDER THE CONTRACT ARE EQUALLY SO; THAT THE
CONTRACT CONTAINS NO COVENANT NOT TO TAX THESE RIGHTS OR PRIVILEGES
AND, IF IT DID, IT WOULD BE BEYOND THE POWER OF THE COMMISSIONER.  WE
CANNOT AGREE. 

THE ASSESSMENT CONTEMPLATED BY ACT NO. 49 OF 1921 IS NOT A GENERAL
TAX LAID FOR THE SUPPORT OF GOVERNMENT UPON A PROPERTY RIGHT OR A
FRANCHISE.  THIS IS EXPRESSLY ADMITTED BY THE PETITIONER IN BRIEF AND
IN ORAL ARGUMENT.  IN THE BRIEF IT IS SAID:  "THE SPECIAL TAXES OR
ASSESSMENTS HERE IN QUESTION, IF AND WHEN COLLECTED, WILL SIMPLY ACCRUE
TO THE SPECIAL FUND FOR THE CURRENT OPERATION AND MAINTENANCE OF THE
IRRIGATION DISTRICT, AND THUS SERVE ONLY TO LOWER THE ASSESSMENTS UPON
OTHER LANDS NOW TAXED FOR SUCH OPERATION AND MAINTENANCE.  THE INSULAR
TREASURY CAN DERIVE NO DIRECT BENEFIT."  AND, IN ORAL ARGUMENT, COUNSEL
FOR PETITIONER FRANKLY CONCEDED THAT THE MONEY TO BE RAISED IS NOT
TAXES IN ANY WAY BUT MERELY AN ASSESSMENT AGAINST THE RESPONDENT'S LAND
FOR THE COST OF DELIVERING THE WATER.  IF PUERTO RICO HAD ESSAYED TO
TAX RESPONDENT'S LANDS OR ITS WATER RIGHTS BY A GENERAL LAW, QUITE
DISTINCT QUESTIONS WOULD ARISE WHICH WE NEED NOT DISCUSS. 

TREATED AS AN ASSESSMENT OF PART OF THE COST OF MAINTENANCE OF THE
IRRIGATION SYSTEM, THE PETITIONER INSISTS THAT THE EXACTION DOES NOT
VIOLATE THE OBLIGATION OF THE 1914 CONTRACTS.  IT ASSERTS THAT THE
AGREEMENTS WERE ONLY THAT A GIVEN AMOUNT OF WATER WOULD BE RELEASED, OR
MADE AVAILABLE, OR ALLOTTED TO RESPONDENT AND THEREFORE THE PEOPLE OF
PUERTO RICO ARE FREE TO CHARGE TO RESPONDENT THE COST OF DELIVERING THE
WATER; AND, FURTHER, THAT IF THE CONTRACTS, BY THEIR TERMS, PRECLUDED
THE IMPOSITION UPON THE RESPONDENT OF THIS COST THEY ARE BEYOND THE
POWER OF THE COMMISSIONER. 

INTO AGREEMENTS WITH SUCH OWNER OR OWNERS AS TO THE AMOUNT OF WATER AND
THE TIME, PLACE AND CONDITIONS OF DELIVERY THEREOF, WHICH SHALL BE
DELIVERED TO THE LANDS TO WHICH THE SAID WATER RIGHTS OR CONCESSIONS
ARE APPURTENANT AS THE FAIR EQUIVALENT IN VALUE THEREOF,  ...  "  WE
THINK IT EVIDENT FROM THIS LANGUAGE THAT THE COMMISSIONER WAS NOT
LIMITED TO AGREEING TO ALLOT TO THE LAND-OWNER A CERTAIN AMOUNT OF
WATER, BUT WAS EMPOWERED TO STIPULATE THAT AT CERTAIN TIMES HE WOULD
CAUSE TO BE DELIVERED, AT SPECIFIED PLACES, THE WATER WHICH RESPONDENT
WAS TO RECEIVE AS THE EQUIVALENT OF THAT WHICH IT HAD FORMERLY BEEN
ENTITLED TO TAKE AT ITS INTAKES ALONG THE RIVER.  THAT THE COMMISSIONER
SO CONSTRUED HIS AUTHORITY IS PLAIN FROM THE TERMS OF THE CONTRACTS. 

EACH CONTRACT DESCRIBES THE RIGHTS APPURTENANT TO THE LANDS IN
QUESTION, ACKNOWLEDGES THEIR VALIDITY, STATES THE AMOUNTS OF WATER THE
RESPONDENT'S PREDECESSOR IS ENTITLED TO TAKE, AND, IN CONSIDERATION OF
THE MUTUAL COVENANTS OF THE PARTIES, STIPULATES "THAT THE QUANTITIES OF
WATER SPECIFIED" IN THE AGREEMENT, "DELIVERED UNIFORMLY THROUGH THE
YEAR, SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED IN THIS AGREEMENT,
...  ARE THE FAIR EQUIVALENT IN VALUE OF THE WATER WHICH THE SAID
FORTUNA ESTATES TAKES UNDER AND PURSUANT TO THE CONCESSIONS AND WATER
RIGHTS CLAIMED BY IT, AND THE PEOPLE OF PORTO RICO WILL, SUBJECT TO THE
CONDITIONS AND LIMITATIONS HEREINAFTER SPECIFIED AND AT THE TIMES,
PLACES AND SUBJECT TO THE CONDITIONS OF DELIVERY HEREINAFTER PROVIDED
FOR, MAKE DELIVERY" OF THE AMOUNTS OF WATER SPECIFIED IN THE
AGREEMENT.  EACH CONTRACT FURTHER PROVIDES THAT "THE PEOPLE OF PORTO
RICO WILL DELIVER THE SAID WATER AS FOLLOWS."  ONE AGREEMENT COVENANTS
THAT THE WATER DELIVERABLE FOR SOME OF THE TRACTS SHALL BE AT THE
INTAKES PROVIDED BY THE OWNER, AND THAT WATER DELIVERABLE TO ANOTHER
TRACT SHALL IN PART BE DELIVERABLE AT SUCH AN INTAKE AND IN PART AT A
PUMPING STATION ON THE BANK OF THE RIVER.  THE RIGHT IS RESERVED, UPON
NOTICE BY THE PEOPLE OF PORTO RICO, TO CHANGE THE PLACE OF DELIVERY OF
CERTAIN OF THE WATER.  IT IS FURTHER PROVIDED THAT IF DELIVERY AT THE
POINTS DESIGNATED IS TEMPORARILY INTERRUPTED, PORTO RICO WILL DELIVER
AN EQUIVALENT AMOUNT OF WATER AT SOME OTHER POINT.  IT IS AGREED THAT
THE PRESENCE OF WATER IN THE RIVER BED AT THE OPENING OF THE DESCRIBED
INTAKES, SUFFICIENT TO PERMIT THE OWNER TO TAKE THE QUANTITIES
SPECIFIED IN THE AGREEMENT, SHALL BE DEEMED A DELIVERY WITHIN THE
MEANING OF THE CONTRACT.  A CLAUSE PROVIDES THAT SHOULD THE OWNER
DESIRE TO TAKE WATER FOR CERTAIN OF THE TRACTS AT PLACES OTHER THAN THE
PRESENT INTAKES, PORTO RICO WILL DELIVER THE WATER AT SUCH OTHER PLACES
BUT THAT "ALL EXTRA EXPENSES OCCASIONED BY SUCH DELIVERY SHALL BE BORNE
BY" THE OWNER. 

THE OBLIGATION OF PORTO RICO TO DELIVER THE NAMED QUANTITIES IS
RECOGNIZED IN MANY CLAUSES OF THE CONTRACTS.  AS APPLIED TO THE
PETITIONER, THE WORD "DELIVER" APPEARS TEN TIMES IN EACH CONTRACT, THE
WORD "DELIVERY" NINE TIMES, AND THE WORD "DELIVERABLE" FOUR TIMES, IN
ONE OF THE DOCUMENTS.  FROM THE FOUR CORNERS OF THE AGREEMENTS IT IS
CLEAR THAT, IN CONSIDERATION OF THE SUSPENSION OF THE RIGHTS OF
FORTUNA, AND ITS SUCCESSOR, THE RESPONDENT, THE INSULAR GOVERNMENT
AGREED NOT MERELY TO ALLOT, BUT TO DELIVER, AT SPECIFIED PLACES,
CERTAIN QUANTITIES OF WATER.  PRIOR TO THE EXECUTION OF THE CONTRACTS,
FORTUNA WAS UNDER NO OBLIGATION TO THE GOVERNMENT TO PAY IT ANY COST OR
EXPENSE FOR THE BRINGING OF THE WATER TO ITS INTAKES.  THE CONTRACT
CLEARLY CONTEMPLATES THAT IT IS TO BE UNDER NONE WITH RESPECT TO THE
WATER AGREED TO BE DELIVERED TO IT IN LIEU OF THAT WHICH IT FORMERLY
HAD THE RIGHT TO TAKE.  THIS FACT IS EMPHASIZED BY THE PROVISION THAT,
IF IT DESIRES DELIVERY AT OTHER PLACES THAN THOSE SPECIFIED IN THE
CONTRACTS, IT SHALL BEAR THE EXPENSE ENTAILED BY THE CHANGE. 

THE DEFICIT IN THE MAINTENANCE COST OF THE SYSTEM WAS MET, FOR SOME
TIME, BY THE SALE OF SURPLUS WATER.  THE CONTRACT GIVES THE RESPONDENT
THE RIGHT TO A PORTION OF SUCH SURPLUS WATER OVER AND ABOVE THE
SPECIFIED AMOUNTS TO BE DELIVERED BY THE PETITIONER.  THE RESPONDENT
SUED TO ENJOIN THE PETITIONER FROM SELLING THE SURPLUS WATER TO WHICH
IT CLAIMED TO BE ENTITLED.  THE SUIT RESULTED IN AN INJUNCTION.  THE
GOVERNMENT BEING THUS DEPRIVED OF THE REVENUE THERETOFORE USED TOWARDS
THE MAINTENANCE OF THE SYSTEM, ADOPTED THE ACT OF 1921 WITH THE EVIDENT
PURPOSE OF RECOUPING A PORTION OF THAT EXPENSE FROM THE RESPONDENT AND
OTHERS WITH WHOM IT HAD MADE CONTRACTS IN 1914 FOR THE DELIVERY OF THE
STIPULATED AMOUNT OF WATER TO THEM WITHOUT CHARGE THEREFOR.  THE
HISTORY OF THE LEGISLATION SHOWS THAT THE PROPOSED EXACTION WAS NOT A
GENERAL TAX BUT WAS AN EFFORT TO COLLECT FROM PERSONS WHOSE LAND WAS
NOT IN THE IRRIGATION SYSTEM A PORTION OF THE EXPENSE OF MAINTAINING
THAT SYSTEM, WHEREAS THE CONTRACTS EXEMPTED THEM FROM CONTRIBUTING TO
SUCH COST AS A CONDITION OF RECEIVING THE STIPULATED AMOUNT OF WATER
FROM THE SYSTEM.  THIS WAS A CLEAR VIOLATION OF THE OBLIGATION OF THE
CONTRACTS. 

THE JUDGMENT IS AFFIRMED. 

FN1  "NO LAW IMPAIRING THE OBLIGATION OF CONTRACTS SHALL BE
ENACTED."  48 U.S.C. SEC. 737. 

FN2  ACT OF SEPTEMBER 18, 1908, LAWS OF PORTO RICO, 1909, P. 152. 

FN3  ACT OF AUGUST 8, 1913, LAWS OF PORTO RICO, 1914, P. 54, SEC.
13. 

FN4  PORTO RICO V. RUSSELL & CO., 268 F. 723. 

FN5  ACT 49 OF 1921, LAWS OF PORTO RICO, 1921, P. 366. 

FN6  THE PRECEDING LITIGATION AND THE NECESSITY FOR BRINGING ACTION
FOR THE TAX RATHER THAN PROCEEDING SUMMARILY WILL BE FOUND IN GALLARDO
V. HAVEMEYER, 21 F.2D 1012, AND THE ACT OF CONGRESS OF APRIL 23, 1928,
45 STAT. 447. 

FN7  60 F.2D 10. 

FN8  PUERTO RICO V. RUSSELL & CO., 288 U.S. 476. 

FN9  56 P.R. DEC. 343. 

FN10  118 F.2D 225. 

FN11  SUPRA, NOTE 2. 

FN12  SUPRA, NOTE 3. 

MR. JUSTICE DOUGLAS, DISSENTING: 

THERE WAS NO PROVISION WHATSOEVER IN THE GRANT OF THESE WATER RIGHTS
EXEMPTING THEM FROM ANY FORM OF TAXATION.  HENCE IF NO CONTRACT HAD
BEEN MADE AND THE IRRIGATION SYSTEM HAD BEEN CONSTRUCTED AND
RESPONDENT'S LANDS HAD BEEN SERVICED IN PRECISELY THE SAME WAY AS WAS
DONE HERE, I SHOULD THINK THAT THERE WOULD BE NO DOUBT BUT THAT THE
ASSESSMENT WOULD BE VALID.  THE SUPREME COURT OF PUERTO RICO RELIED FOR
THE VALIDITY OF THE ASSESSMENT ON SUCH CASES AS KNOWLES V. NEW SWEDEN
IRRIGATION DISTRICT, 16 IDA.  217, 235, 101 P. 81, 87, AND BLEAKLEY V.
PRIEST RAPIDS IRRIGATION DIST., 168 WASH. 267, 11 P.2D 597.  THOSE
CASES HOLD THAT, UNDER CERTAIN CIRCUMSTANCES, THE OWNER OF A WATER
RIGHT MAY BE BROUGHT INTO AN IRRIGATION DISTRICT AND FORCED TO PAY AN
ASSESSMENT.  AS STATED IN THE KNOWLES CASE (P. 241): 

"UNDER OUR IRRIGATION LAW AS IT EXISTED AT THE TIME OF THE
ORGANIZATION OF THIS DISTRICT AND THE ASSESSMENTS REFERRED TO WERE
MADE, IF THE LAND OF THE PLAINTIFF WAS PROPERLY INCLUDED IN SAID
IRRIGATION DISTRICT, IT WAS SUBJECT TO ASSESSMENT FOR BENEFITS,
PROVIDED IT RECEIVED ANY, WHETHER THE OWNER OF SAID LAND OWNED A WATER
RIGHT IN CONNECTION THEREWITH OR NOT; FOR A PERSON IN AN IRRIGATION
DISTRICT MAY RECEIVE CERTAIN BENEFITS REGARDLESS OF WHETHER THE OWNER
HAS A WATER RIGHT IN CONNECTION THEREWITH OR NOT." 

THE REASONS WHICH PERMIT THE OWNER OF A WATER RIGHT TO BE BROUGHT
INTO AN IRRIGATION DISTRICT ARE EQUALLY COGENT HERE.  FOR, THE IMPACT
OF THIS ASSESSMENT IS NOT MORE RIGOROUS THAN THE ASSESSMENT ATTENDANT
ON MEMBERSHIP IN AN IRRIGATION DISTRICT.  IN FACT, IT IS LESS, SINCE
RESPONDENT IS BEING ASSESSED ONLY FOR A PRORATA SHARE OF THE COST OF
MAINTENANCE AND OPERATION OF THE SYSTEM, NOT ITS CONSTRUCTION. 

IT WAS CLEAR AND UNDISPUTED THAT RESPONDENT OBTAINED SUBSTANTIAL
BENEFITS FROM THE IRRIGATION SYSTEM.  (1) THE QUANTITY OF WATER
RECEIVED BY RESPONDENT FROM THE SYSTEM IS 19% LARGER THAN WHAT
PREVIOUSLY HAD BEEN AVAILABLE FROM THE EARLIER LIMITED FLOW OF THE
RIVER.  (2) THE STORAGE RESERVOIR IMPOUNDS FLOOD WATERS WHICH WOULD BE
LARGELY LOST TO RESPONDENT.  THE DAM NOT ONLY INCREASES THE AMOUNT OF
WATER AVAILABLE BUT MAKES POSSIBLE REGULAR AND MORE CONTINUOUS
DELIVERIES OF THE WATER.  (3) THE IRRIGATION SYSTEM HAS TAPPED NEW
SOURCES OF WATER WHICH FEED THE RESERVOIR.  NO SEPARATION OF THAT
ADDITIONAL SUPPLY OF WATER FROM THE OLD SUPPLY IS POSSIBLE.  AS A
RESULT, RESPONDENT OBTAINS ADDITIONAL ADVANTAGES, ESPECIALLY IN DRY
YEARS.  (4) BY REASON OF THE CONSTRUCTION AND OPERATION OF THE
IRRIGATION SYSTEM, THE WATER IS AVAILABLE AT SEVERAL DIFFERENT
DISTRIBUTION POINTS THROUGH CANALS RATHER THAN AT THE RIVER BED ALONE. 

IN THAT POSTURE OF THE CASE, WE WOULD BE FACED WITH A DETERMINATION
BY THE LEGISLATURE OF PUERTO RICO THAT RESPONDENT'S LANDS WERE
BENEFITED AND THAT RESPONDENT SHOULD PAY AN ASSESSMENT.  IT HAS LONG
BEEN HELD THAT SUCH A "DETERMINATION IS CONCLUSIVE UPON THE OWNERS AND
THE COURTS."  SPENCER V. MERCHANT, 125 U.S. 345, 356.  AND SEE DAVIDSON
V. NEW ORLEANS, 96 U.S. 97; WALSTON V. NEVIN, 128 U.S. 578.  AS STATED
IN FALLBROOK IRRIGATION DISTRICT V. BRADLEY, 164 U.S. 112, 176, 177,
"THE FACT OF THE AMOUNT OF BENEFITS IS NOT SUSCEPTIBLE OF THAT ACCURATE
DETERMINATION WHICH APPERTAINS TO A DEMONSTRATION IN GEOMETRY"; THE
CHOICE OF METHODS EMPLOYED "IS ONE OF THOSE MATTERS OF DETAIL IN
ARRIVING AT THE PROPER AND FAIR AMOUNT AND PROPORTION OF THE TAX THAT
IS TO BE LEVIED ON THE LAND WITH REGARD TO THE BENEFITS IT HAS
RECEIVED, WHICH IS OPEN TO THE DISCRETION OF THE STATE LEGISLATURE, AND
WITH WHICH THIS COURT OUGHT TO HAVE NOTHING TO DO."  AND SEE FRENCH V.
BARBER ASPHALT PAVING CO., 181 U.S. 324; MILHEIM V. MOFFAT TUNNEL
IMPROVEMENT DIST., 262 U.S. 710, 721; ROBERTS V. RICHLAND IRRIGATION
DIST., 289 U.S. 71; CHESEBRO V. LOS ANGELES COUNTY FLOOD CONTROL DIST.,
306 U.S. 459. 

THE EXISTENCE OF THE CONTRACTS DOES NOT CALL FOR A DIFFERENT RESULT. 
THE STATUTE IN QUESTION PROVIDED THAT OWNERS OF WATER RIGHTS, SUCH AS
RESPONDENT, "SHALL BE ENTITLED TO RECEIVE FROM THE IRRIGATION SYSTEM AN
AMOUNT OF WATER WHICH IS THE REASONABLE EQUIVALENT IN VALUE OF THE SAID
WATER RIGHT OR CONCESSION."  THE COMMISSIONER OF THE INTERIOR WAS
AUTHORIZED "TO ENTER INTO AGREEMENTS WITH SUCH OWNER OR OWNERS AS TO
THE AMOUNT OF WATER AND THE TIME, PLACE AND CONDITIONS OF DELIVERY
THEREOF, WHICH SHALL BE DELIVERED TO THE LANDS TO WHICH THE SAID WATER
RIGHTS OR CONCESSIONS ARE APPURTENANT AS THE FAIR EQUIVALENT IN VALUE
THEREOF."  ACT NO. 128, SEC. 13, AUGUST 8, 1913, L. 1914, PP. 54-84. 
THE CONTRACTS, AS WELL AS THE STATUTE, SPEAK OF "DELIVERY" OF THE
WATER.  BUT THE SUPREME COURT OF PUERTO RICO INTERPRETED THE CONTRACTS
AS MEANING THAT RESPONDENT "AGREED TO RECEIVE  FROM THE IRRIGATION
SYSTEM A CERTAIN QUANTITY OF WATER IN EXCHANGE" FOR ITS WATER RIGHTS. 
I DO NOT THINK THAT THAT CONSTRUCTION IS UNWARRANTED. 

(1)  THE CONTRACTS THEMSELVES MAKE PLAIN THAT, AS RESPECTS CERTAIN
INTAKES ON THE RIVER, "THE PRESENCE OF WATER IN THE RIVER BED  ...  IN
QUANTITIES SUFFICIENT TO PERMIT THE TAKING AT THE SAID INTAKES OF THE
AMOUNTS OF WATER SPECIFIED SHALL BE DEEMED TO BE DELIVERIES."  THAT
PROVISION ALONE DEMONSTRATES THAT THE SUPREME COURT OF PUERTO RICO WAS
JUSTIFIED IN INTERPRETING "DELIVERY" IN THESE CONTRACTS DIFFERENTLY
THAN MIGHT BE WARRANTED IN CASE OF CONTRACTS FOR THE CARTAGE OF GOODS. 
"THE WORD 'DELIVER' HAS PERHAPS AS MANY DIFFERENT SHADES OF MEANING
ASCERTAINED BY JUDICIAL INTERPRETATION AS ANY OTHER TERM KNOWN TO THE
LAW."  UNITED STATES V. MCCREADY, 11 F. 225, 234.  THE PROBLEMS OF
OPERATION OF AN IRRIGATION SYSTEM ARE UNIQUE IN MANY RESPECTS. 
MANIPULATION OF THE GATES AT THE DAM DETERMINES THE FLOW OF WATER
THROUGH THE VARIOUS CHANNELS.  PUERTO RICO'S UNDERTAKING IN EACH
INSTANCE WAS TO "DELIVER" WATER AT SPECIFIED INTAKES PROVIDED BY
RESPONDENT.  THOSE INTAKES WERE IN THE RIVER OR IN DESIGNATED
RESERVOIRS PROVIDED BY RESPONDENT.  IT SEEMS REASONABLE TO CONCLUDE
THAT PUERTO RICO'S UNDERTAKING WAS TO MAKE THE SPECIFIED QUANTITIES OF
WATER AVAILABLE SO THAT THEY WOULD BE RECEIVED AT THOSE INTAKES.  TO
ENFORCE THE PRESENT TAX IS NOT TO RENIG ON THAT UNDERTAKING.  THE FACT
THAT RESPONDENT WAS TO BEAR "ALL EXTRA EXPENSES" IN CASE WATER WAS
DELIVERED AT INTAKES OTHER THAN THE DESIGNATED ONES SEEMS TO ME HARDLY
MORE THAN A PROVISION THAT RESPONDENT WAS TO BEAR THE COST IN CASE THE
IRRIGATION SYSTEM HAD TO BE PARTIALLY RELOCATED TO MEET ITS
REQUIREMENTS.  IN ANY EVENT, IT DOES NO MORE THAN RAISE A DOUBT AS TO
THE CORRECT INTERPRETATION OF THE CONTRACT - A DOUBT WHICH, AS
SUBSEQUENTLY POINTED OUT, SHOULD NOT BE RESOLVED AGAINST THE POWER OF
PUERTO RICO TO IMPOSE THIS TAX. 

(2)  IT SEEMS TO ME TOLERABLY CLEAR THAT SUCH A CONSTRUCTION OF THE
CONTRACTS COMPORTS WITH THE PURPOSE OF THE ARRANGEMENT.  THE CONTRACTS
STATE THAT PUERTO RICO, "IN ORDER TO FACILITATE AND MAKE MORE CERTAIN
THE OPERATION OF THE SAID DAM AND THE IRRIGATION SYSTEM OF WHICH IT IS
A PART, DESIRES TO DETERMINE AND AGREE UPON AN AMOUNT OF WATER WHICH,
DELIVERED REGULARLY, MAY, UNDER ALL ATTENDING CIRCUMSTANCES, BE
CONSIDERED TO BE FAIR EQUIVALENT IN VALUE FOR IRRIGATION PURPOSES OF
THE AMOUNT OF WATER WHICH THE FORTUNA ESTATES WOULD UNDER ORDINARY
CIRCUMSTANCES TAKE AND USE UNDER THE SAID WATER RIGHTS AND
CONCESSIONS."  THE AMOUNT OF WATER ACTUALLY OBTAINED BY RESPONDENT
BEFORE THE DAM WAS ERECTED APPARENTLY FELL FAR BELOW THE AMOUNT TO
WHICH IT WAS ENTITLED UNDER THEIR WATER RIGHTS.  THE CONTRACTS WERE
DESIGNED TO SUBSTITUTE FOR THAT LATTER THEORETICAL FIGURE ONE WHICH
WOULD REPRESENT A "FAIR EQUIVALENT IN VALUE FOR IRRIGATION PURPOSES" OF
THE AMOUNT OF WATER WHICH RESPONDENT WOULD "UNDER ORDINARY
CIRCUMSTANCES TAKE AND USE" UNDER ITS WATER RIGHTS.  FROM PUERTO RICO'S
POINT OF VIEW, SUCH A DETERMINATION WAS IMPORTANT SO THAT THE DEMANDS
ON THE DAM COULD BE REDUCED TO KNOWN REQUIREMENTS AND SO THAT THE
ERECTION OF THE DAM WOULD NOT RESULT IN A WINDFALL TO RESPONDENT.  THE
LATTER CERTAINLY WOULD TRANSPIRE IF THE DAM GAVE RESPONDENT AN AMOUNT
OF WATER WHICH IT HAD NOT BEEN ABLE TO OBTAIN ON ITS OWN WITHOUT THE
IRRIGATION SYSTEM.  THUS THE SPECIFICATION IN THE CONTRACTS OF THE
"FAIR EQUIVALENT" OF THE AMOUNT OF WATER WHICH RESPONDENT ORDINARILY
WOULD OBTAIN UNDER ITS WATER RIGHTS WAS NOTHING MORE THAN A
DETERMINATION OF THE THEN WORTH OF THE WATER RIGHTS IN TERMS OF ACRE
FEET OF WATER.  UNDER THAT VIEW, THE CONTRACTS DID NOT RAISE THE WATER
RIGHTS TO A HIGHER CONSTITUTIONAL DIGNITY THAN THEY PREVIOUSLY
ENJOYED. 

(3)  NO EXPRESS EXEMPTION FROM THIS FORM OF TAXATION IS TO BE FOUND
IN THE CONTRACTS.  IF THAT EXEMPTION EXISTS, IT IS IMPLIED.  BUT EVEN
THOUGH IT BE ASSUMED ARGUENDO THAT PUERTO RICO'S REPRESENTATIVE HAD THE
AUTHORITY CONSTITUTIONALLY TO BARGAIN AWAY ITS TAXING POWER, THE
EXEMPTION SHOULD NOT BE INFERRED.  CHIEF JUSTICE MARSHALL STATED IN
PROVIDENCE BANK V. BILLINGS, 4 PET. 514, 561, THAT A RELINQUISHMENT OF
A POWER TO TAX "IS NEVER TO BE PRESUMED"; "ITS ABANDONMENT OUGHT NOT TO
BE PRESUMED, IN A CASE IN WHICH THE DELIBERATE PURPOSE OF THE STATE TO
ABANDON IT DOES NOT APPEAR."  IF THERE ARE DOUBTS, THEY MUST BE
RESOLVED IN FAVOR OF THE GOVERNMENT.  WELLS V. SAVANNAH, 181 U.S. 531;
CHICAGO THEOLOGICAL SEMINARY V. ILLINOIS, 188 U.S. 662; METROPOLITAN
STREET RY. CO. V. NEW YORK, 199 U.S. 1, 35-36.  AS STATED IN WELLS V.
SAVANNAH, SUPRA, PP. 539-540, A CONTRACT OF EXEMPTION FROM TAXATION
MUST "BE CLEARLY PROVED.  IT WILL NOT BE INFERRED FROM FACTS WHICH DO
NOT LEAD IRRESISTIBLY AND NECESSARILY TO THE EXISTENCE OF THE
CONTRACT.  THE FACTS PROVED MUST SHOW EITHER A CONTRACT EXPRESSED IN
TERMS, OR ELSE IT MUST BE IMPLIED FROM FACTS WHICH LEAVE NO ROOM FOR
DOUBT THAT SUCH WAS THE INTENTION OF THE PARTIES AND THAT A VALID
CONSIDERATION EXISTED FOR THE CONTRACT.  IF THERE BE ANY DOUBT ON THESE
MATTERS, THE CONTRACT HAS NOT BEEN PROVEN AND THE EXEMPTION DOES NOT
EXIST."    THAT RULE SHOULD BE APPLIED TO THIS SITUATION.  IT IS CLEAR
THAT RESPONDENT IS ONE OF THE BENEFICIARIES OF THE IRRIGATION SYSTEM,
EVEN THOUGH THE ADDITIONAL AMOUNT OF WATER WHICH THE ERECTION OF THE
DAM ENABLED IT TO OBTAIN BE DISREGARDED.  THE MEANING OF THE WORD
"DELIVERY" AS USED IN THE CONTRACTS IS AT BEST AMBIGUOUS.  HENCE, WE
SHOULD STRICTLY ADHERE TO THE PRESUMPTION AGAINST EXEMPTION FROM
TAXATION.  TO RESOLVE ALL AMBIGUITIES IN THE CONTRACTS IN RESPONDENT'S
FAVOR AND AGAINST PUERTO RICO IS TO FORSAKE A CANON OF CONSTRUCTION
WHICH HAS LONG OBTAINED.   IN CONCLUSION, PUERTO RICO HAS NOT TREATED
RESPONDENT THE SAME AS LANDOWNERS WHO HAVE NO WATER RIGHTS.  THE LATTER
HAVE TO PAY FOR THE CONSTRUCTION OF THE IRRIGATION SYSTEM AS WELL AS
FOR ITS MAINTENANCE AND OPERATION.  RESPONDENT, ON THE OTHER HAND, IS
MERELY REQUIRED TO CONTRIBUTE TOWARDS THE COST OF MAINTENANCE AND
OPERATION OF THE SYSTEM.  ON THESE FACTS, THAT FAVORED TREATMENT IS
SUFFICIENT RESPECT FOR THE INTEGRITY OF RESPONDENT'S PROPERTY RIGHTS. 
TO FREE IT FROM ALL BURDEN IS TO GIVE IT A WINDFALL.  ONLY UNDER THE
COMPULSION OF PLAIN AND UNAMBIGUOUS LANGUAGE SHOULD WE PERMIT A
BENEFICIARY OF SUCH A PROJECT TO ESCAPE HIS FAIR SHARE OF THE COSTS. 
THERE IS NO SUCH COMPULSION HERE.  HENCE WE SHOULD REFUSE TO LET THE
CONTRACT CLAUSE OF PUERTO RICO'S ORGANIC LAW PRODUCE AN INEQUITABLE,
UNFAIR, AND HARSH RESULT. 

MR. JUSTICE BLACK, MR. JUSTICE MURPHY, AND MR. JUSTICE BYRNES JOIN IN
THIS DISSENT. 
..END :






SPRECKELS V. COMMISSIONER, 315 U.S. 626 


NOS. 581 AND 582.  ARGUED MARCH 4, 5, 1942.  - DECIDED MARCH 16, 1942. 
119 F.2D 667, AFFIRMED. 


SALES COMMISSIONS PAID BY A TAXPAYER ENGAGED IN THE BUSINESS OF BUYING
AND SELLING SECURITIES ON HIS OWN ACCOUNT ARE NOT DEDUCTIBLE AS
ORDINARY AND NECESSARY EXPENSES, UNDER SEC. 23(A) OF THE REVENUE ACT OF
1934, BUT ARE TO BE TREATED AS OFFSETS AGAINST SELLING PRICE RELEVANT
ONLY TO THE DETERMINATION OF CAPITAL LOSSES OR GAINS.  P. 627. 

IN ART. 282 OF T.R. 77, UNDER THE REVENUE ACT OF 1932, AND ART. 24-2
OF T.R. 86, UNDER THE REVENUE ACT OF 1934, PROVIDING THAT COMMISSIONS
PAID IN SELLING SECURITIES ARE AN OFFSET AGAINST THE SELLING PRICE
"WHEN SUCH COMMISSIONS ARE NOT AN ORDINARY AND NECESSARY BUSINESS
EXPENSE," THE QUALIFYING CLAUSE IS CONTROLLING ONLY IN THE CASE OF
DEALERS IN SECURITIES. 

SPRECKELS V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 314 U.S. 600, TO REVIEW THE REVERSAL OF A RULING OF THE
BOARD OF TAX APPEALS, 41 B.T.A. 1204. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

DURING 1934 AND 1935, THE PETITIONER BOUGHT AND SOLD STOCKS, BONDS,
AND COMMODITIES.  IN CONNECTION WITH THE SALES, HE PAID SELLING
COMMISSIONS TO BROKERS, AND IN HIS BOOKS THESE COMMISSIONS WERE
DEDUCTED FROM SELLING PRICE BEFORE NET PROFIT OR LOSS WAS DETERMINED. 
IN HIS INCOME TAX RETURNS FOR 1934 AND 1935, HE TREATED THE COMMISSIONS
SIMILARLY, NOT MAKING DEDUCTIONS FOR THEM AS ORDINARY AND NECESSARY
BUSINESS EXPENSES.  IN 1939, HOWEVER, IN THE COURSE OF PROCEEDINGS
BEFORE THE BOARD OF TAX APPEALS,  FN1  THE PETITIONER ASSERTED THAT HE
WAS ENTITLED TO TAX-REFUNDS, FOR THE REASON THAT HIS FAILURE TO MAKE
DEDUCTIONS FOR THE COMMISSIONS HAD RESULTED IN OVERPAYMENT IN BOTH
YEARS.  THE BOARD SUSTAINED HIS CONTENTION IN PART, HOLDING THAT THE
SELLING COMMISSIONS COULD PROPERLY HAVE BEEN DEDUCTED AS ORDINARY AND
NECESSARY BUSINESS EXPENSES, THAT THE REFUND CLAIMED FOR 1935 SHOULD BE
ALLOWED, BUT THAT THE REFUND CLAIMED FOR 1934 WAS BARRED BY THE
APPLICABLE STATUTE OF LIMITATIONS.  41 B.T.A. 1204.  THE CIRCUIT COURT
OF APPEALS REVERSED, HOLDING THAT THE CLAIMED DEDUCTIONS FOR SELLING
COMMISSIONS WERE NOT PERMISSIBLE, AND FINDING IT UNNECESSARY THEREFORE
TO DETERMINE WHETHER THE REFUND CLAIM FOR 1934 WAS TIMELY.  119 F.2D
667.  BECAUSE OF A CONFLICT IN DECISIONS OF CIRCUIT COURTS OF APPEAL,
FN2  WE GRANTED CERTIORARI TO CONSIDER THE QUESTION:  ARE SALES
COMMISSIONS, PAID BY A TAXPAYER ENGAGED IN THE BUSINESS OF BUYING AND
SELLING SECURITIES,  FN3  DEDUCTIBLE AS ORDINARY AND NECESSARY EXPENSES
UNDER SEC. 23(A) OF THE REVENUE ACT OF 1934,  FN4  OR ARE THEY TO BE
TREATED AS OFFSETS AGAINST SELLING PRICE, RELEVANT ONLY TO THE
DETERMINATION OF CAPITAL LOSSES OR GAINS? 

IN HELVERING V. WINMILL, 305 U.S. 79, WE HELD THAT A TAXPAYER WHO
BOUGHT AND SOLD SECURITIES COULD NOT DEDUCT THE COMMISSIONS PAID ON HIS
PURCHASES AS A BUSINESS EXPENSE.  ALTHOUGH THE WINMILL CASE AROSE UNDER
THE REVENUE ACT OF 1932, THE STATUTORY PROVISIONS AND REGULATIONS THERE
RELEVANT ARE IDENTICAL WITH THOSE AGAIN IN CONTROVERSY HERE.  AND THE
CONCLUSION WE REACHED THERE - THAT A GENERAL REGULATION  FN5
DESIGNATING "COMMISSIONS" AS ONE OF A LONG LIST OF DEDUCTIBLE BUSINESS
EXPENSES IS NOT CONTROLLING IN THE FACE OF A SPECIFIC REGULATION
PERTAINING TO COMMISSIONS ON SECURITIES TRANSACTIONS - IS EQUALLY
APPLICABLE HERE. 

THE SPECIFIC REGULATION PERTAINING TO SECURITIES TRANSACTIONS
PROVIDES: 

"COMMISSIONS PAID IN PURCHASING SECURITIES ARE A PART OF THE COST
PRICE OF SUCH SECURITIES.  COMMISSIONS PAID IN SELLING SECURITIES, WHEN
SUCH COMMISSIONS ARE NOT AN ORDINARY AND NECESSARY BUSINESS EXPENSE,
ARE AN OFFSET AGAINST THE SELLING PRICE.  ..."  FN6 

IF THERE IS ANY JUSTIFICATION FOR TREATING SALES COMMISSIONS
DIFFERENTLY FROM PURCHASE COMMISSIONS, IT MUST DEPEND UPON THE
SIGNIFICANCE OF THE CLAUSE "WHEN SUCH COMMISSIONS ARE NOT AN ORDINARY
AND NECESSARY BUSINESS EXPENSE."  THIS CLAUSE FIRST APPEARED IN
TREASURY REGULATIONS 77, ACCOMPANYING THE REVENUE ACT OF 1932.  IN THE
INCOME TAX REGULATIONS PRIOR TO THAT TIME, IT WAS CONSISTENTLY
PRESCRIBED THAT COMMISSIONS PAID ON PURCHASES AND SALES OF SECURITIES
WERE TO BE TREATED AS PART OF THE COST OR SELLING PRICE AND WERE NOT
OTHERWISE TO BE DEDUCTIBLE.  FN7  AND IN HELVERING V. UNION PACIFIC
CO., 293 U.S. 282, 286, THIS COURT EXPRESSLY RECOGNIZED THAT SUCH
COMMISSIONS HAVE BEEN "CONSISTENTLY TREATED  ...  NOT AS ITEMS OF
CURRENT EXPENSE, BUT AS ADDITIONS TO THE COST OF THE PROPERTY OR
DEDUCTIONS FROM THE PROCEEDS OF SALE." 

WHAT, THEN, IS THE SIGNIFICANCE OF THE QUALIFYING CLAUSE FIRST
APPEARING IN THE REGULATIONS OF 1932, AND WHAT EFFECT IS TO BE GIVEN TO
IT?  PRIOR TO THE FORMAL ADOPTION OF THE REGULATIONS OF 1932, THE
COMMISSIONER OF INTERNAL REVENUE PERMITTED ONE EXCEPTION TO WHAT
APPEARS TO HAVE BEEN AN OTHERWISE UNIFORM PRACTISE OF TREATING
COMMISSIONS ON THE SALES OF SECURITIES AS MERE OFFSETS AGAINST SELLING
PRICE.  THIS EXCEPTION WAS MADE IN THE CASE OF THE DEALER IN
SECURITIES, ONE WHO "AS A MERCHANT BUYS SECURITIES AND SELLS THEM TO
CUSTOMERS WITH A VIEW TO THE GAINS AND PROFITS THAT MAY BE DERIVED
THEREFROM."  FN8  IT REFLECTS THE VIEW THAT THERE ARE PRACTICAL
CONSIDERATIONS OF ACCOUNTING CONVENIENCE WHICH MAKE IT AS DIFFICULT FOR
SUCH DEALERS, IN MANY INSTANCES, TO SET COMMISSIONS OFF AGAINST THE
PROCEEDS OF INDIVIDUAL SALES AS IT WOULD BE FOR THE MERCHANT OF OTHER
WARES TO TREAT HIS SELLING EXPENSES ONLY AS A SERIES OF SUBTRACTIONS
FROM THE SELLING PRICE REALIZED ON PARTICULAR ITEMS OF HIS STOCK.  FN9
INCORPORATION OF THE CLAUSE "WHEN SUCH COMMISSIONS ARE NOT AN ORDINARY
AND NECESSARY BUSINESS EXPENSE" WAS INTENDED TO PROVIDE FORMAL
RECOGNITION FOR AN ESTABLISHED BUSINESS USAGE, BASED ON THE PECULIAR
NECESSITIES OF SECURITIES DEALERS, A USAGE TO WHICH THE COMMISSIONER
HAD ALREADY GIVEN INFORMAL ACQUIESCENCE.  FN10  FOR THE CASUAL BUYER
AND SELLER OF SECURITIES, OR EVEN FOR THE LARGE SCALE TRADER ON HIS OWN
ACCOUNT, AS HERE, THE PRACTICAL OBSTACLES TO TREATING SALES COMMISSIONS
AS OFFSETS AGAINST SELLING PRICE DO NOT EXIST.  IN THIS VERY CASE, FOR
EXAMPLE, THE TAXPAYER APPARENTLY FOUND IT MORE CONVENIENT TO FOLLOW
THIS METHOD IN KEEPING HIS OWN BUSINESS RECORDS. 

WE THEREFORE CONCLUDE THAT THE CLAUSE "WHEN SUCH COMMISSIONS ARE NOT
AN ORDINARY AND NECESSARY BUSINESS EXPENSE" WAS INTENDED TO BE AND IS
CONTROLLING ONLY IN THE CASE OF SECURITIES DEALERS.  FN11  IN THE CASE
OF A TRADER ON HIS OWN ACCOUNT WHERE THERE ARE NO COMPELLING PRACTICAL
GROUNDS FOR TREATING SALES COMMISSIONS AS SUCH AN EXPENSE, WE FIND NO
PERSUASIVE REASON FOR DISTINGUISHING, UNDER THE STATUTE AND
REGULATIONS, BETWEEN SALES COMMISSIONS LIKE THOSE BEFORE US AND
PURCHASE COMMISSIONS LIKE THOSE OF THE WINMILL CASE.  THE JUDGMENT OF
THE COURT BELOW IS ACCORDINGLY AFFIRMED. 

FN1  THESE PROCEEDINGS HAD BEEN INITIATED IN CONNECTION WITH OTHER
ISSUES, NOT RELEVANT HERE. 

FN2  WITH THE DECISION BELOW AND COMMISSIONER V. COVINGTON, 120 F.2D
768(C.C.A.5), COMPARE WINMILL V. COMMISSIONER, 93 F.2D 494(C.C.A.2),
AND NEUBERGER V. COMMISSIONER, 104 F.2D 649(C.C.A.2). 

FN3  ALTHOUGH THE PETITIONER ALLEGES THAT SOME OF THE COMMISSIONS
WERE PAID ON SALES OF COMMODITIES, IT DOES NOT APPEAR FROM THE RECORD
THAT THE PETITIONER ASKED FOR SEPARATE TREATMENT OF THESE COMMISSIONS
BEFORE EITHER THE BOARD OF TAX APPEALS OR THE CIRCUIT COURT OF
APPEALS.  NOR WAS SUCH SEPARATE TREATMENT REQUESTED BEFORE THIS COURT. 

FN4  48 STAT. 680, 688.  THE STATUTE PROVIDES: 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

"(A)  EXPENSES.  - ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS,
INCLUDING A REASONABLE ALLOWANCE FOR SALARIES OR OTHER COMPENSATION FOR
PERSONAL SERVICES ACTUALLY RENDERED.  ..." 

FN5  "AMONG THE ITEMS INCLUDED IN BUSINESS EXPENSES ARE  ...
COMMISSIONS  ...  ADVERTISING AND OTHER SELLING EXPENSES  ..."  ARTICLE
121 OF TREASURY REGULATIONS 77, UNDER THE REVENUE ACT OF 1932; ARTICLE
23(A)-1 OF TREASURY REGULATIONS 86, UNDER THE REVENUE ACT OF 1934. 

FN6  ARTICLE 282 OF TREASURY REGULATIONS 77, UNDER THE REVENUE ACT OF
1932; ARTICLE 24-2 OF REGULATIONS 86, UNDER THE REVENUE ACT OF 1934. 

FN7  SEE, E.G., ARTICLE 8, PAR. 10 OF TREASURY REGULATIONS 33,
REVISED, UNDER THE REVENUE ACT OF 1916; ARTICLE 293 OF TREASURY
REGULATIONS 45, UNDER THE REVENUE ACT OF 1918. 

FN8  SEE ARTICLE 22(C)-5 OF TREASURY REGULATIONS 86, UNDER THE REVENUE
ACT OF 1934. 

FN9  SEE BUREAU OF INTERNAL REVENUE, G.C.M. 15430, XIV-2 CUM. BULL. 
59(1935). 

FN10  IBID. 

FN11  AS THE GOVERNMENT POINTS OUT IN ITS BRIEF, A DEALER'S TAX
LIABILITY UNDER THE REVENUE ACTS OF 1932 AND 1934 WOULD ORDINARILY HAVE
BEEN THE SAME WHETHER THE COMMISSIONS HE PAID ON SALES WERE TREATED AS
DEDUCTIBLE BUSINESS EXPENSES OR OFFSETS AGAINST SELLING PRICE.  FOR IN
GENERAL, HIS GAINS OR LOSSES WOULD NOT HAVE BEEN CAPITAL GAINS OR
LOSSES AS DEFINED IN THOSE ACTS.  SEE SEC. 101(C)(8) OF THE REVENUE ACT
OF 1932, 47 STAT. 169, 192; SEC. 117(B) OF THE REVENUE ACT OF 1934, 48
STAT. 680, 714. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :








CRANCER V. LOWDEN, 315 U.S. 631 


NO. 505.  ARGUED MARCH 3, 4, 1942.  - DECIDED MARCH 16, 1942.  - 121
F.2D 645, AFFIRMED. 


1.  IN AN ACTION BY A CARRIER TO RECOVER THE DIFFERENCE BETWEEN THE
CHARGES COLLECTED ON A SHIPMENT AND THE CHARGES WHICH SHOULD HAVE BEEN
COLLECTED UNDER THE TARIFF, WHERE THE QUESTION IS MERELY WHETHER THE
GOODS WERE OF SUCH CHARACTER AS TO COME WITHIN ONE TARIFF CATEGORY,
ALLOWING THE RATE PAID BY THE SHIPPER, OR ANOTHER CATEGORY EXACTING A
HIGHER RATE, AN OPINION OF THE INTERSTATE COMMERCE COMMISSION ON THE
SAME QUESTION OF CLASSIFICATION IN ANOTHER CASE MAY PROPERLY BE
ADMITTED BY THE DISTRICT COURT AS EVIDENCE OF THE MEANING AND
APPLICATION OF THE TARIFF.  P. 634. 

2.  IN SUCH AN ACTION IT IS NOT INCUMBENT UPON THE COURT TO AWAIT THE
OUTCOME OF A PROCEEDING BEFORE THE COMMISSION BETWEEN THE SAME PARTIES
PUTTING IN QUESTION THE REASONABLENESS OF THE RATES CHARGED BUT NOT THE
CLASSIFICATION OF THE GOODS.  P. 635. 

3.  A SHIPPER WHO IS OBLIGED IN AN ACTION BY THE CARRIER TO PAY
CHARGES WHICH CONFORM TO THE TARIFF BUT ARE UNREASONABLE HAS THE REMEDY
OF REPARATION IF THE INTERSTATE COMMERCE COMMISSION FINDS THE RATE
UNREASONABLE AND REQUIRES THAT THE TARIFF BE MODIFIED ACCORDINGLY.  P.
636. 

CRANCER ET AL., DOING BUSINESS AS VALLEY STEEL PRODUCTS CO. ET AL., V.
LOWDEN ET AL., TRUSTEES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 314 U.S. 595, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED BY THE RESPONDENTS AGAINST THE PETITIONERS IN AN ACTION BASED
ON UNDERCHARGES FOR TRANSPORTATION OF FREIGHT BY A RAILWAY. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
RESPONDENTS BROUGHT THIS SUIT TO RECOVER CERTAIN FREIGHT CHARGES FROM
PETITIONERS.  THE CASE WAS TRIED WITHOUT A JURY AND JUDGMENT RENDERED
IN FAVOR OF RESPONDENTS IN THE SUM OF $2,263.47.  ON APPEAL, THE
JUDGMENT WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT.  121 F.2D 645. 

WE BROUGHT THE CASE HERE BECAUSE OF THE CLAIM THAT THE COURTS BELOW
SUSTAINED THE JURISDICTION OF THE DISTRICT COURT ALTHOUGH THE MATTER
CONCERNED CALLED FOR THE EXERCISE OF THE ADMINISTRATIVE DISCRETION OF
THE INTERSTATE COMMERCE COMMISSION, UNDER THE ESTABLISHED RULE FIRST
ANNOUNCED IN TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204
U.S. 426, AS EXPLAINED IN GREAT NORTHERN RY. CO. V. MERCHANTS ELEVATOR
CO., 259 U.S. 285. 

THE SHIPMENTS, AMOUNTING TO SEVEN CARLOADS, MOVED FROM POINTS IN
SEVERAL STATES, THE CARS BEING BILLED BY PETITIONERS TO THEMSELVES AT
ST. LOUIS, MISSOURI.  THE PETITIONERS BILLED THE CONTENTS OF THE CARS
AS SCRAP IRON AND PAID THE TARIFF CHARGE APPLICABLE TO THAT
CLASSIFICATION.  WHEN THE CARS ARRIVED AT ST. LOUIS, THE RESPONDENTS
CAUSED THE WESTERN WEIGHING AND INSPECTION BUREAU TO INSPECT THEIR
CONTENTS.  AS A RESULT OF THAT INSPECTION, RESPONDENTS CLAIMED THAT THE
ARTICLES WERE ACTUALLY "PIPE THREAD PROTECTING RINGS" AND THAT THEY
BELONGED IN THE CLASSIFICATION OF "PIPE FITTINGS."  THE TARIFF RATES ON
PIPE FITTINGS BEING HIGHER THAN THE RATE ON SCRAP IRON, DEMAND WAS MADE
UPON PETITIONERS FOR THE DIFFERENCE IN FREIGHT CHARGES.  THE DEMAND WAS
REFUSED AND THIS SUIT FOLLOWED. 

THE TRIAL COURT FOUND THAT THE ARTICLES IN QUESTION WERE GOVERNED BY
THE TARIFF FOR "PIPE FITTINGS" AND NOT BY THAT FOR "SCRAP IRON."  THE
CIRCUIT COURT OF APPEALS SUSTAINED THIS FINDING.  IN THE LIGHT OF
CERTAIN PROCEEDINGS BEFORE THE INTERSTATE COMMERCE COMMISSION,
AFFECTING THE ARTICLES IN QUESTION AND THEIR RELATION TO THE TARIFFS IN
CONTROVERSY, WE HOLD THAT THE LOWER COURTS WERE RIGHT. 

THE ONLY QUESTIONS OF ANY MOMENT PRESENTED BY THIS CASE ARISE IN
CONNECTION WITH THESE PROCEEDINGS BEFORE THE INTERSTATE COMMERCE
COMMISSION.  IN 1937, PETITIONERS FILED WITH THE COMMISSION A COMPLAINT
AGAINST A NUMBER OF RAILROADS, IN WHICH THEY ASSERTED THAT CERTAIN
SHIPMENTS OF IRON OR STEEL PIPE THREAD PROTECTING RINGS SHOULD HAVE
BEEN CLASSIFIED UNDER THE FREIGHT TARIFFS AS SCRAP IRON OR STEEL AND
NOT AS PIPE FITTINGS.  THEY ALSO URGED, AS AN ALTERNATIVE CONTENTION,
THAT EVEN THOUGH THE SHIPMENTS WERE CLASSED AS PIPE FITTINGS RATHER
THAN SCRAP, THE RATE WAS UNREASONABLY HIGH.  ON AUGUST 6, 1937, THE
COMMISSION DISMISSED THE COMPLAINT, HOLDING BOTH THAT THE PIPE THREAD
PROTECTING RINGS FELL WITHIN THE CLASSIFICATION OF PIPE FITTINGS AND
THAT THE RATES SO IMPOSED WERE NOT UNREASONABLE.  CRANCER & FLEISCHMAN
V. ABILENE AND SOUTHERN RY. CO., 223 I.C.C. 375. 

IN THEIR ANSWER AND IN A MOTION TO STAY PROCEEDINGS FILED IN THE
DISTRICT COURT IN THE PRESENT CASE, PETITIONERS ASSERTED THAT, ON OR
ABOUT MARCH 16, 1939(THE DATE ON WHICH RESPONDENTS BROUGHT THIS SUIT),
THEY HAD INSTITUTED A SECOND ACTION BEFORE THE COMMISSION.  IN THEIR
COMPLAINT IN THIS 1939 ACTION, PETITIONERS ALLEGED THAT THE FREIGHT
CHARGES DEMANDED BY THE RESPONDENTS ON THE SHIPMENTS INVOLVED IN THE
SUIT NOW BEFORE US WERE "UNJUST AND UNREASONABLE  ...  TO THE EXTENT
THAT THEY EXCEEDED OR EXCEED RATES APPLICABLE ON SCRAP IRON AND SCRAP
STEEL."  IT IS NOT CLEAR FROM THIS LANGUAGE WHETHER PETITIONERS
INTENDED TO RAISE ANEW THE QUESTION OF CLASSIFICATION, OR WHETHER THEY
WERE SIMPLY REQUESTING THE COMMISSION TO PASS AGAIN ON THE
REASONABLENESS OF THE RATE.  BUT IN ITS OPINION DATED FEBRUARY 18,
1941, THE COMMISSION STATED:  "WHILE COMPLAINANTS ADMIT FOR THE PURPOSE
OF THIS PROCEEDING THAT THE RATES ON SCRAP IRON ARE NOT APPLICABLE,
THEY CONTEND THAT REASONABLE RATES ON THREAD PROTECTORS SHOULD BEAR
SOME DEFINITE RELATION TO THE SCRAP-IRON RATES."  VALLEY STEEL PRODUCTS
CO. V. ATCHISON, T. & S.F. RY. CO., 243 I.C.C. 509, 512.  WE CONCLUDE
THAT THE CLASSIFICATION QUESTION IS NOT INVOLVED IN THE 1939 I.C.C.
PROCEEDING.  THIS PROCEEDING IS STILL PENDING.  THE EFFECTIVE DATE OF
THE FEBRUARY 18, 1941 OPINION AND ORDER HAS BEEN INDEFINITELY
POSTPONED, A FURTHER HEARING HAS BEEN HELD, BUT NO SUBSEQUENT OPINION
OR ORDER HAS BEEN ISSUED.  FN1 

PETITIONERS RAISE TWO CONTENTIONS WITH RESPECT TO THESE I.C.C.
PROCEEDINGS AND THEIR BEARING UPON THE PRESENT SUIT.  FIRST, THEY
CONTEND THAT IT WAS REVERSIBLE ERROR FOR THE DISTRICT COURT TO ADMIT IN
EVIDENCE A COPY OF THE 1937 OPINION OF THE COMMISSION.  AT THE TRIAL,
PETITIONERS OBJECTED TO ITS ADMISSION ON THE GROUND THAT THE OPINION
HAS "ABSOLUTELY NO PROBATIVE VALUE IN THIS CASE AT ALL," THAT IT IS NOT
"DETERMINATIVE" OR "CONCLUSIVE" AND "NOT EVEN PERSUASIVE" IN THIS CASE,
AND THAT THERE WAS NO PLEADING THAT "THIS OPINION  ...  IS RES
ADJUDICATA OF THE ISSUES BEFORE YOUR HONOR."  WITH RESPECT TO THIS
POINT, WE CAN ONLY SAY THAT PETITIONERS HAVE MADE A BOLD ATTEMPT TO
TRANSFORM THEIR WEAKNESS INTO STRENGTH.  THE PRESENT CASE TURNS UPON
WHETHER THESE IRON PIPE THREAD PROTECTING RINGS ARE TO BE CLASSIFIED
UNDER THE FREIGHT TARIFFS AS PIPE FITTINGS OR SCRAP.  THAT WAS THE VERY
QUESTION DECIDED BY THE COMMISSION IN ITS 1937 OPINION, AND IT WAS
DECIDED ADVERSELY TO PETITIONERS.  IT IS TRUE THAT THE SHIPMENTS IN THE
TWO CASES ARE NOT THE SAME AND THAT NO EVIDENCE WAS INTRODUCED TO PROVE
THAT THEIR CONTENTS WERE IDENTICAL.  CONSEQUENTLY, THE ISSUES IN THE
PRESENT SUIT ARE NOT RES ADJUDICATA.  BUT THE COMMISSION'S 1937 OPINION
COULD HARDLY HAVE BEEN MORE RELEVANT TO THE QUESTION BEFORE THE
DISTRICT COURT.  AS THE CIRCUIT COURT OBSERVED:  "SINCE THE CASE WAS
TRIED WITHOUT A JURY, WE CAN SEE NO POSSIBLE PREJUDICE TO APPELLANTS BY
THE CONSIDERATION OF THE OPINION OF THE COMMISSION BY THE COURT AS
EVIDENCE, RATHER THAN BY AN EXAMINATION OF THE SAME OPINION IN HIS
LIBRARY.  THERE IS NO SUGGESTION THAT THE LATTER COURSE WOULD HAVE BEEN
IMPROPER.  THE TRIAL COURT DID NOT TREAT THE OPINION AS BEING RES
ADJUDICATA."  121 F.2D 645, 650.  WE THINK THIS IS THE LEAST THAT COULD
BE SAID, AND THAT THE DISTRICT COURT PROPERLY ADMITTED AND CONSIDERED
THE ADMINISTRATIVE DETERMINATION OF VIRTUALLY THE SAME QUESTION AS THAT
BEFORE IT. 

SECOND, PETITIONERS CONTEND THAT THE DISTRICT COURT ERRED IN DENYING
THEIR MOTION TO STAY PROCEEDINGS IN THIS CASE PENDING ACTION BY THE
I.C.C. IN THE SECOND PROCEEDING BEFORE THE COMMISSION.  AS WE HAVE
SAID, THE CLASSIFICATION QUESTION ALONE WAS INVOLVED IN THE CASE BEFORE
THE DISTRICT COURT.  THE COMMISSION HAD PASSED UPON THAT QUESTION
ALMOST TWO YEARS EARLIER.  IN THEIR NEWLY INSTITUTED PROCEEDING,
PETITIONERS DID NOT RESURRECT THAT DISPUTE BUT CONFINED THEMSELVES TO
THE CONTENTION THAT THE RATES ON PIPE FITTINGS WERE UNREASONABLE AS
APPLIED TO THEIR PIPE THREAD PROTECTING RINGS.  THE ISSUE OF THE
REASONABLENESS OF THE RATES WAS NOT OPEN TO THE DISTRICT COURT.  THE
MEANING OF THE TARIFF HAD BEEN DETERMINED BY THE COMMISSION.  IT
REMAINED TO THE RAILROAD ONLY TO COLLECT THE RATES FOR WHICH THE TARIFF
CALLED AND FOR THE DISTRICT COURT ONLY TO SEE THAT THE RAILROAD DID
COLLECT THEM.  "UNTIL CHANGED, TARIFFS BIND BOTH CARRIERS AND SHIPPERS
WITH THE FORCE OF LAW.  UNDER SEC. 6 OF THE INTERSTATE COMMERCE ACT THE
CARRIER CANNOT DEVIATE FROM THE RATE SPECIFIED IN THE TARIFF FOR ANY
SERVICE IN CONNECTION WITH THE TRANSPORTATION OF PROPERTY.  THAT
OR FORM.  THIS COURT HAS HAD OCCASION RECENTLY TO SUSTAIN ACTION OF THE
COMMISSION AIMED AT CARRIERS' PRACTICES RESULTING IN COLLECTION OF LESS
THAN THE TARIFF RATE.  IT IS EQUALLY IMPORTANT TO AID THE EFFORTS OF A
CARRIER IN COLLECTING PUBLISHED CHARGES IN FULL.  INVOLUNTARY REBATES
FROM TARIFF RATES SHOULD BE VIEWED WITH THE SAME DISAPPROVAL AS
VOLUNTARY REBATES."  LOWDEN V. SIMONDS-SHIELDS-LONSDALE GRAIN CO., 306
U.S. 516, 520, 521.  NOTHING INVOLVED IN THE PENDING ADMINISTRATIVE
PROCEEDINGS BEFORE THE INTERSTATE COMMERCE COMMISSION WAS ESSENTIAL TO
THE DETERMINATION OF THE ISSUE IN THIS SUIT.  IF THE TRIAL JUDGE HAD,
IN THE EXERCISE OF HIS DISCRETION, CONTINUED THE TRIAL OF THE CAUSE
UNTIL SUCH TIME AS THE COMMISSION HAD PASSED UPON THE REASONABLENESS OF
THE RATE, THE DELAY MIGHT HAVE MADE IT IMPOSSIBLE FOR THE CARRIER TO
PRODUCE THE WITNESSES WHO HAD MADE THE INSPECTION OF THE SHIPMENTS.  ON
THE OTHER HAND, THE PETITIONERS SUFFERED NO HARDSHIP AS A RESULT OF THE
TRIAL COURT'S INSISTENCE ON PROCEEDING WITH THE TRIAL.  IF PETITIONERS
PAY THE JUDGMENT IN THIS CASE, AND THE COMMISSION SHOULD, IN THE STILL
PENDING PROCEEDING, DECIDE TO MODIFY THE TARIFFS, PETITIONERS CAN
OBTAIN A COMPLETE REMEDY BY WAY OF REPARATION.  PENNSYLVANIA R. CO. V.
INTERNATIONAL COAL MINING CO., 230 U.S. 184, 197.  THE FORM OF THE
CIRCUIT COURT'S JUDGMENT SPECIFICALLY PRESERVED PETITIONERS' RIGHT TO
SUCH REPARATION.  WE HOLD THAT UNDER THE CIRCUMSTANCES THERE WAS NO
ABUSE OF DISCRETION BY THE TRIAL JUDGE.  JUDGMENT AFFIRMED. 

FN1  ORDER OF THE COMMISSION IN NO. 28215, DATED APRIL 19, 1941;
ORDER IN NO. 28215, DATED MAY 23, 1941; ORDER IN NO. 28215, DATED JUNE
2, 1941; ORDER IN NO. 28215, DATED JUNE 20, 1941; ORDER IN NO. 28215,
DATED JULY 22, 1941. 
..END :





















PUERTO RICO V. RUBERT CO., 315 U.S. 637 


NO. 96.  ARGUED FEBRUARY 6, 9, 1942.  - DECIDED MARCH 16, 1942.  - 118
F.2D 752, REVERSED. 


1.  THE PRINCIPLE WHICH ACCORDS GREAT WEIGHT TO THE DECISIONS OF THE
SUPREME COURT OF PUERTO RICO IN MATTERS OF LOCAL LAW APPLIES WHERE THE
QUESTION RESPECTS THE POWER OF THAT COURT TO APPOINT A RECEIVER AND IS
DEPENDENT UPON A CONSTRUCTION OF LOCAL STATUTES; AND A FORTIORI WHERE
THE QUESTION CONCERNS MERELY THE PROPRIETY OF AN EXERCISE OF THAT
POWER.  P. 646. 

2.  A DECISION OF THE SUPREME COURT OF PUERTO RICO AFFIRMING ITS
POWER TO PLACE A RECEIVER IN CONTROL OF THE PROPERTY OF A CORPORATION
THE DISSOLUTION OF WHICH IT HAD DECREED FOR VIOLATIONS OF A LAW
FORBIDDING CORPORATIONS TO HOLD MORE THAN 500 ACRES OF LAND, IS
ENTITLED TO GREAT WEIGHT AS AN EXPOSITION OF THE LOCAL LAW AND, NOT
BEING PLAINLY INCORRECT, SHOULD NOT HAVE BEEN REVERSED BY THE CIRCUIT
COURT OF APPEALS, ALTHOUGH SEC. 182 OF THE LOCAL CODE OF CIVIL
PROCEDURE UPON WHICH THE INSULAR COURT RELIED APPEARS TO CONFLICT WITH
SECS. 27-30 OF THE PRIVATE CORPORATION LAW.  P. 646. 

3.  THE SUPREME COURT OF PUERTO RICO, HAVING DECREED THE FORFEITURE
OF THE CHARTER, AND THE DISSOLUTION AND WINDING UP OF A CORPORATION,
WHICH IN VIOLATION OF THE LAW AND ITS CHARTER RESTRICTIONS HAD ACQUIRED
MORE THAN 500 ACRES OF LAND, APPOINTED A RECEIVER OF ALL ITS PROPERTY,
WHICH WAS OPERATED AS A UNIT IN THE PRODUCTION OF SUGAR, AND DIRECTED
HIM TO MANAGE THE PROPERTY AS A GOING CONCERN UNTIL PUERTO RICO SHOULD
EXERCISE ITS STATUTORY OPTION EITHER TO CONFISCATE THE REAL ESTATE
UNLAWFULLY HELD OR TO HAVE IT SOLD AT PUBLIC AUCTION.  HELD: 

(1)  THAT THE APPOINTMENT WAS DISCRETIONARY, FOR THE PURPOSE OF
PREVENTING CONFUSION AND NEEDLESS LITIGATION WHICH MIGHT RESULT IF THE
DIRECTORS OF THE CORPORATION SHOULD ATTEMPT TO CONVEY INTERESTS IN THE
PROPERTY PENDING THE EXERCISE OF THE OPTION.  P. 646. 

(2)  THAT AS THE RECEIVERSHIP WAS TO BE TERMINATED UPON THE EXERCISE
OF THE OPTION, IT WAS SUFFICIENTLY DEFINITE IN TIME; NOR WAS IT TOO
BROAD IN NOT BEING RESTRICTED TO THE LAND IN EXCESS OF THE 500 ACRE
MAXIMUM, SINCE TO SEPARATE THE LAND FROM THE MACHINERY AND OTHER
PERSONALTY PENDING THE EXERCISE OF THE OPTION WOULD HAVE RESULTED IN
ECONOMIC WASTE.  P. 647. 

PUERTO RICO V. RUBERT HERMANOS, INC. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 314 U.S. 589, TO REVIEW THE REVERSAL OF A DECREE OF THE
SUPREME COURT OF PUERTO RICO APPOINTING A RECEIVER.  FOR EARLIER PHASES
OF THE LITIGATION SEE 106 F.2D 754; 309 U.S. 543. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

BY JOINT RESOLUTION OF MAY 1, 1900, THE CONGRESS PROVIDED THAT "EVERY
CORPORATION HEREAFTER AUTHORIZED TO ENGAGE IN AGRICULTURE (IN PUERTO
RICO) SHALL BY ITS CHARTER BE RESTRICTED TO THE OWNERSHIP AND CONTROL
OF NOT TO EXCEED FIVE HUNDRED ACRES OF LAND."  FN1  THIS LIMITATION WAS
CARRIED OVER INTO THE PRESENT ORGANIC ACT OF PUERTO RICO, ENACTED ON
MARCH 2, 1917.  FN2  IN 1935, THE LEGISLATIVE ASSEMBLY OF PUERTO RICO
ENACTED TWO LAWS TO PROVIDE THE MEANS OF ENFORCING THE CONGRESSIONAL
PROHIBITION.  ACT NO. 33 CONFERRED UPON THE SUPREME COURT OF PUERTO
RICO EXCLUSIVE ORIGINAL JURISDICTION OVER QUO WARRANTO PROCEEDINGS
INSTITUTED FOR VIOLATIONS OF THE 500-ACRE LAW.  FN3  ACT NO. 47
AUTHORIZED THE ATTORNEY GENERAL OF PUERTO RICO, OR ANY DISTRICT
ATTORNEY, TO BRING SUCH QUO WARRANTO PROCEEDINGS IN THE SUPREME COURT
OF PUERTO RICO AGAINST ANY CORPORATION VIOLATING THE ORGANIC ACT, AND
PROVIDED FURTHER THAT WHEN ANY CORPORATION IS "UNLAWFULLY HOLDING ...
REAL ESTATE IN PUERTO RICO, THE PEOPLE OF PUERTO RICO MAY, AT ITS
OPTION, THROUGH THE SAME PROCEEDINGS, INSTITUTE IN ITS BEHALF THE
CONFISCATION OF SUCH PROPERTY, OR THE ALIENATION THEREOF AT PUBLIC
AUCTION, WITHIN A TERM OF NOT MORE THAN SIX MONTHS COUNTING FROM THE
DATE ON WHICH FINAL SENTENCE IS RENDERED."  FN4 

THIS IS A QUO WARRANTO PROCEEDING BROUGHT IN 1937 AGAINST RESPONDENT
CORPORATION BY THE ATTORNEY GENERAL OF PUERTO RICO UNDER THESE
STATUTES.  THE COMPLAINT ALLEGED THAT RESPONDENT CORPORATION WAS
ORGANIZED IN 1927 UNDER THE LAWS OF PUERTO RICO FOR THE PURPOSE OF
ACQUIRING AND WORKING SUGAR CANE FARMS AND PLANTATIONS, THAT ITS
ARTICLES OF INCORPORATION RESTRICTED IT TO THE ACQUISITION OF 500
ACRES, THAT IT NEVERTHELESS HAD ACQUIRED, AND THAT IT OWNED AND WAS
WORKING AT THE TIME OF THE FILING OF THE COMPLAINT, SOME 12,188 ACRES
OF LAND.  THE ANSWER CONCEDED THAT THE 500-ACRE RESTRICTION WAS
CONTAINED IN THE ARTICLES AND THAT THE RESPONDENT HAD NEVERTHELESS
ACQUIRED THE 12,188 ACRES, BUT INTERPOSED SEVERAL DEFENSES.  ON JULY
30, 1938, THE SUPREME COURT OF PUERTO RICO ENTERED JUDGMENT FOR THE
PETITIONER.  IT ORDERED "THE FORFEITURE AND CANCELLATION" OF THE
LICENSE AND ARTICLES OF INCORPORATION OF RESPONDENT, "THE IMMEDIATE
DISSOLUTION AND WINDING UP OF THE AFFAIRS" OF THE CORPORATION, AND THE
PAYMENT OF A $3000 FINE AND COSTS.  ON THE SAME DAY, PETITIONER MOVED
THAT A RECEIVER BE APPOINTED TO HANDLE THE DISSOLUTION AND DISPOSITION
OF THE RESPONDENT'S PROPERTY, PURSUANT TO SUBSECTIONS 4 AND 5 OF SEC.
182 OF THE PUERTO RICO CODE OF CIVIL PROCEDURE.  FN5 

THE MOTION FOR THE APPOINTMENT OF A RECEIVER WAS HELD IN ABEYANCE
PENDING AN APPEAL TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST
CIRCUIT.  THAT COURT REVERSED THE JUDGMENT OF THE SUPREME COURT OF
PUERTO RICO, ON THE GROUND THAT ACTS NOS. 33 AND 47 EXCEEDED THE
AUTHORITY OF THE LEGISLATIVE ASSEMBLY UNDER THE ORGANIC ACT.  106 F.2D
754.  WE GRANTED CERTIORARI, AND ON MARCH 25, 1940 REVERSED THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS AND REINSTATED THAT OF THE
SUPREME COURT OF THE ISLAND.  309 U.S. 543. 

THE MANDATE OF THIS COURT REACHED THE CLERK OF THE SUPREME COURT OF
PUERTO RICO ON MAY 13.  ON THE SAME DAY, THE ATTORNEY GENERAL ENTERED A
REQUEST FOR A HEARING ON PETITIONER'S PENDING MOTION FOR THE
APPOINTMENT OF A RECEIVER.  THE RESPONDENT THEN FILED ITS ANSWER, AND
BRIEFS WERE SUBMITTED BY BOTH PARTIES.  IN ITS ANSWER AND BRIEF,
RESPONDENT RAISED NUMEROUS OBJECTIONS TO THE APPOINTMENT OF A
RECEIVER.  CHIEF AMONG THESE OBJECTIONS WERE:  (A) THAT ON MARCH 28,
1940, RESPONDENT CORPORATION HAD BEEN DISSOLVED BY VOTE OF ITS
STOCKHOLDERS, AND ITS PROPERTY CONVEYED TO A PARTNERSHIP CONSISTING OF
ALL THE STOCKHOLDERS, SO THAT NOTHING REMAINED TO BE DONE; AND (B) THAT
THE STATUTES APPLICABLE TO THIS CASE ARE CERTAIN SECTIONS OF THE
PRIVATE CORPORATIONS LAW FN6  RATHER THAN SEC. 182 OF THE CODE OF CIVIL
PROCEDURE,  FN7  THAT UNDER THE TERMS OF THE FORMER "THE DIRECTORS
SHALL BE THE TRUSTEES  ... PENDING THE LIQUIDATION" OF ANY DISSOLVED
CORPORATION, AND THAT THE COURT WAS CONSEQUENTLY WITHOUT JURISDICTION
TO APPOINT A RECEIVER UNDER SEC. 182.  THE INSULAR COURT RESOLVED ALL
THE ISSUES IN PETITIONER'S FAVOR, APPOINTED A RECEIVER OF ALL THE
PROPERTY OF THE RESPONDENT, AND DIRECTED THE RECEIVER TO HANDLE THE
PROPERTY AS A GOING CONCERN UNTIL THE PEOPLE OF PUERTO RICO SHOULD
EXERCISE THE OPTION GRANTED TO THEM BY SEC. 2 OF ACT NO. 47 OF AUGUST
7, 1935 EITHER TO CONFISCATE THE REAL ESTATE UNLAWFULLY HELD BY
RESPONDENT OR TO HAVE IT SOLD AT PUBLIC AUCTION.  FN8 

FROM THIS ORDER, RESPONDENT TOOK A SECOND APPEAL TO THE CIRCUIT COURT
OF APPEALS, MAKING THE TWO CONTENTIONS WHICH HAVE BEEN NOTED AS WELL AS
MANY OTHERS WHICH REQUIRE NO DISCUSSION HERE.  THE CIRCUIT COURT OF
APPEALS DISPOSED OF SEVERAL OF THESE CONTENTIONS UNFAVORABLY TO THE
RESPONDENT.  HOWEVER, IT REVERSED THE JUDGMENT OF THE SUPREME COURT OF
PUERTO RICO, ON THE GOUND THAT THE ORDER APPOINTING THE RECEIVER WAS
"IMPROVIDENTLY ISSUED."  118 F.2D 752.  IN THE OPINION OF THE CIRCUIT
COURT, SECS. 27, 28 AND 30 OF THE PRIVATE CORPORATION LAW ARE
UNQUESTIONABLY APPLICABLE TO THE DISSOLUTION OF A CORPORATION BY COURT
ORDER AS A RESULT OF A VIOLATION OF ITS CHARTER AND THE LAWS, ALTHOUGH
THE INSULAR COURT HAD DECLARED THEM "APPLICABLE ONLY TO A VOLUNTARY
DISSOLUTION AGREED UPON BY THE SHAREHOLDERS OF A CORPORATION OR BY
EXPIRATION OF THE TERM FIXED FOR ITS DURATION."  WITH RESPECT TO SEC.
182 OF THE CODE OF CIVIL PROCEDURE, UPON WHICH THE LOWER COURT RELIED,
THE CIRCUIT COURT OF APPEALS DETERMINED THAT IT PERMITTED THE
APPOINTMENT OF A RECEIVER ONLY "UPON PROPER SHOWING BY AN INTERESTED
PARTY, AGREEABLY TO THE USAGES OF COURTS OF EQUITY."  IT CONCLUDED THAT
THE OPTION GRANTED BY ACT NO. 47 OF 1935 DID NOT AFFORD THE PEOPLE OF
PUERTO RICO AN INTEREST SUFFICIENT FOR THIS PURPOSE.  IT OBSERVED THAT
THE OPTION RELATES ONLY TO THE EXCESS ACREAGE, WHEREAS THE ORDER HAD
SOUGHT TO PLACE THE RECEIVER IN CHARGE OF ALL THE PROPERTY OF THE
RESPONDENT, BOTH REAL AND PERSONAL.  IF THE PEOPLE OF PUERTO RICO
SHOULD ELECT TO HAVE THE LAND SOLD AT PUBLIC AUCTION,  FN9  THE CIRCUIT
COURT ASSERTED, A MASTER CAN BE APPOINTED FOR THAT PURPOSE, AND IN THE
MEANTIME A NOTICE OF LIS PENDENS WHICH WAS FILED WITH THE REGISTRY OF
PROPERTY WILL PROVE ADEQUATE TO PROTECT THE PEOPLE'S INTEREST. 

THE CIRCUIT COURT'S OPINION LEAVES IT UNCERTAIN WHETHER IT MEANT TO
HOLD THAT THE INSULAR COURT WHOLLY LACKED POWER TO APPOINT A RECEIVER
FOR A JUDICIALLY DISSOLVED CORPORATION, OR MERELY THAT IT ABUSED ITS
DISCRETION IN THIS CASE.  IN ANY EVENT, THE QUESTIONS FOR OUR
DETERMINATION SEEM TO BE THESE:  (1) DOES IT LIE WITHIN THE POWER OF
THE SUPREME COURT OF PUERTO RICO TO APPOINT A RECEIVER FOR THE ASSETS
OF A CORPORATION WHOSE DISSOLUTION HAS BEEN JUDICIALLY ORDERED BECAUSE
IT HAS VIOLATED ITS ARTICLES OF INCORPORATION AND THE LAWS OF PUERTO
RICO AND THE UNITED STATES; (2) DID THAT COURT ABUSE ITS DISCRETION IN
APPOINTING A RECEIVER UNDER THE CIRCUMSTANCES OF THIS CASE; AND (3) DID
THE SCOPE OF THE ORDER EXCEED THE COURT'S AUTHORITY? 

FIRST.  WHETHER OR NOT IT IS WITHIN THE POWER OF THE SUPREME COURT OF
PUERTO RICO TO PLACE A RECEIVER IN CONTROL OF THE PROPERTY OF A
CORPORATION WHICH HAS BEEN DISSOLVED FOR VIOLATION OF LAW, IS A
QUESTION WHOSE ANSWER MUST BE FOUND IN THE STATUTES OF THE ISLAND.  AS
WE HAVE SAID, SEC. 182 OF THE CODE OF CIVIL PROCEDURE PROVIDES:  "A
RECEIVER MAY BE APPOINTED BY THE COURT IN WHICH AN ACTION IS PENDING OR
HAS PASSED TO JUDGMENT, OR BY THE JUDGE THEREOF:  ...  (4) IN THE CASE
WHEN A CORPORATION HAS BEEN DISSOLVED, OR IS INSOLVENT, OR IN IMMEDIATE
DANGER OF INSOLVENCY, OR HAS FORFEITED ITS CORPORATE RIGHTS.  (5) IN
ALL OTHER CASES WHERE RECEIVERS HAVE HERETOFORE BEEN APPOINTED BY THE
USAGES OF COURTS OF EQUITY."  IT SEEMS HARDLY DEBATABLE THAT, IF
NOTHING MORE WERE SHOWN, THESE PROVISIONS WOULD STRONGLY SUPPORT THE
ASSERTION OF POWER BY THE INSULAR COURT TO APPOINT A RECEIVER FOR
RESPONDENT'S PROPERTY.  BUT RESPONDENT URGES THAT THE PROVISIONS OF
SECS. 27, 28, 29 AND 30 OF THE PRIVATE CORPORATIONS LAW COMPEL THE
OPPOSITE CONCLUSION.  SECTION 27 PROVIDES THAT "ALL CORPORATIONS,
WHETHER THEY EXPIRE THROUGH THE LIMITATION CONTAINED IN ARTICLES OF
INCORPORATION OR ARE ANNULLED BY THE LEGISLATURE, OR OTHERWISE
DISSOLVED, SHALL BE CONTINUED AS BODIES CORPORATE FOR THE PURPOSE OF
PROSECUTING AND DEFENDING SUITS BY OR AGAINST THEM, AND OF ENABLING
THEM TO SETTLE AND CLOSE THEIR AFFAIRS, TO DISPOSE OF AND CONVEY THEIR
PROPERTY AND TO DIVIDE THEIR CAPITAL; BUT NOT FOR THE PURPOSE OF
CONTINUING THE BUSINESS FOR WHICH THEY WERE ESTABLISHED."  SECTION 28
DECLARES THAT "UPON THE DISSOLUTION IN ANY MANNER OF A CORPORATION, THE
DIRECTORS SHALL BE THE TRUSTEES THEREOF PENDING THE LIQUIDATION."  AND
SEC. 30 AUTHORIZES THE APPROPRIATE DISTRICT COURT OF PUERTO RICO, "ON
APPLICATION OF ANY CREDITOR OR STOCKHOLDER,  ...  AT ANY TIME EITHER
(TO) CONTINUE THE DIRECTORS AS TRUSTEES AS AFORESAID, OR (TO) APPOINT
ONE OR MORE PERSONS TO BE LIQUIDATORS OF SUCH CORPORATION TO TAKE
CHARGE OF THE ASSETS AND EFFECTS THEREOF  ...  "  AGAIN, IF NOTHING
MORE THAN THESE SECTIONS WERE BEFORE US, WE THINK IT CLEAR ENOUGH THAT,
UPON THE DISSOLUTION OF A CORPORATION "IN ANY MANNER," THE DIRECTORS
WOULD REMAIN IN CHARGE OF THE ASSETS AS TRUSTEES UNTIL SOME "CREDITOR
OR STOCKHOLDER" MOVED A DISTRICT COURT - NOT THE SUPREME COURT OF THE
ISLAND - TO REMOVE THEM. 

A FRANK RECOGNITION THAT THE STATUTES APPEAR ON THEIR FACE TO
CONFLICT AND TO OVERLAP PERMITS US TO AVOID THE LENGTHY AND TECHNICAL
ARGUMENTS WHICH HAVE BEEN ADVANCED BY BOTH PARTIES IN THIS COURT AND IN
THE COURTS BELOW.  THE SUPREME COURT OF PUERTO RICO RESOLVED THIS
CONFLICT IN FAVOR OF ITS POWER TO APPOINT A RECEIVER, BY HOLDING THAT
THE PERTINENT SECTIONS OF THE PRIVATE CORPORATIONS LAW DO NOT APPLY TO
JUDICIALLY ORDERED DISSOLUTIONS BUT THAT SEC. 182 OF THE CODE OF CIVIL
PROCEDURE DOES APPLY.  IN RECENT YEARS WE HAVE HAD OCCASION TO ANNOUNCE
THAT THE DECISIONS OF THE COURTS OF PUERTO RICO WITH RESPECT TO THE
INTERPRETATION OF THE ISLAND'S STATUTES AND TO MATTERS OF LOCAL LAW ARE
TO BE ACCORDED THE GREATEST WEIGHT.  BONET V. YABUCOA SUGAR CO., 306
U.S. 505; BONET V. TEXAS COMPANY, 308 U.S. 463.  WE CANNOT SAY THAT AN
INTERPRETATION PLACED BY THE SUPREME COURT OF PUERTO RICO UPON STATUTES
WHOSE MEANING IS SO OPEN TO DOUBT IS PLAINLY INCORRECT.  ACCORDINGLY,
THOUGH THE INTERPRETATION SUGGESTED BY THE CIRCUIT COURT OF APPEALS MAY
BE EQUALLY PLAUSIBLE, IT ERRED IN REVERSING THE JUDGMENT OF THE INSULAR
COURT. 

SECOND.  ASSUMING THAT UNDER SEC. 182 THE INSULAR SUPREME COURT HAS
THE POWER TO APPOINT A RECEIVER FOR A JUDICIALLY DISSOLVED CORPORATION,
THE QUESTION REMAINS WHETHER IT HAS ABUSED ITS DISCRETION IN APPOINTING
A RECEIVER IN THIS CASE.  THE CIRCUIT COURT OF APPEALS, AFTER
INDICATING ITS BELIEF THAT THE POWER TO APPOINT A RECEIVER IS A DRASTIC
ONE AND THAT IT SHOULD BE SPARINGLY EMPLOYED, CONCLUDED THAT ITS USE
WAS NOT WARRANTED BY THE CIRCUMSTANCES OF THIS CASE.  ITS REASONING WAS
THAT THE SOLE INTEREST OF THE PETITIONER WAS ITS OPTION EITHER TO
CONFISCATE THE EXCESS ACREAGE OR TO HAVE IT SOLD AT PUBLIC AUCTION. 
"THE PEOPLE DO NOT NEED A RECEIVER TO PROTECT THE OPTION.  IF AND WHEN
THE TIME COMES FOR THE COURT TO DECREE A SALE OF THE LAND AT PUBLIC
AUCTION A MASTER CAN BE APPOINTED TO CARRY THROUGH THE SALE.  THE LAND
WILL STILL BE THERE.  MEANWHILE, THE INTEREST OF THE PEOPLE IS
PROTECTED BY A LIS PENDENS NOTICE WHICH WAS ENTERED IN THE REGISTRY OF
PROPERTY SHORTLY AFTER THE INSTITUTION OF THE QUO WARRANTO PROCEEDINGS,
WHICH NOTICE THE CORPORATION UNSUCCESSFULLY SOUGHT TO HAVE CANCELLED." 
118 F.2D 752, AT 759-760. 

IT MAY BE TRUE THAT THE PROCEDURE SUGGESTED BY THE CIRCUIT COURT WOULD
HAVE BEEN ADEQUATE TO THE NEEDS OF THE CASE.  IT MAY EVEN BE TRUE THAT
AN INJUNCTION RESTRAINING THE DIRECTORS OF RESPONDENT FROM DISPOSING OF
THE PROPERTY PENDING THE PEOPLE'S CHOICE WOULD HAVE BEEN SUFFICIENT. 
BUT THE SAME CONSIDERATIONS THAT COMPEL RESTRAINT ON THE PART OF
APPELLATE COURTS WHERE THE QUESTION IS ONE OF POWER, APPLY WITH DOUBLE
FORCE WHERE THE QUESTION MERELY CONCERNS THE PROPRIETY OF ITS
EXERCISE.  THE SUPREME COURT OF PUERTO RICO WAS IN THE BEST POSITION TO
DETERMINE WHAT THE SITUATION DEMANDED.  THE ATTEMPTED TRANSFER OF THE
CORPORATE ASSETS ON MARCH 28, 1940 MAY HAVE BEEN A BONA FIDE EFFORT TO
COMPLY WITH THE EARLIER DECREE OF DISSOLUTION, AS RESPONDENT INSISTS. 
BUT THE FACT THAT THE TRANSFER WAS MADE TO A PARTNERSHIP WHOSE MEMBERS
HAD BEEN THE STOCKHOLDERS OF THE DISSOLVED CORPORATION MIGHT SUGGEST A
DISPOSITION ON THE PART OF THE DIRECTORS TO OBSTRUCT THE EFFECTIVE
EXERCISE OF THE OPTION AFFORDED THE PEOPLE BY ACT NO. 47.  CERTAINLY IT
WOULD NOT HAVE BEEN UNREASONABLE FOR THE INSULAR COURT TO SUSPECT THAT
THIS WAS SO.  NO DOUBT THE LIS PENDENS NOTICE WOULD PREVENT THE
DIRECTORS FROM CONVEYING AN INTEREST IN ANY OF THE PROPERTY WHICH WOULD
BE SUPERIOR TO THAT OF A PURCHASER AT A SUBSEQUENT PUBLIC AUCTION
CONDUCTED PURSUANT TO ACT NO. 47.  BUT THE SALE AND RESALE OF THE
PROPERTY, OR ITS ENCUMBRANCE, COULD ONLY RESULT IN CONFUSION,
MISUNDERSTANDING AND NEEDLESS LITIGATION.  IT WAS CLEARLY WITHIN THE
DISCRETION OF THE SUPREME COURT OF THE ISLAND TO AVERT THESE
DIFFICULTIES.    THIRD:  RESPONDENT INSISTS AND THE CIRCUIT COURT HELD,
FINALLY, THAT THE ORDER WAS TOO BROAD TO BE SUSTAINED.  IT IS ARGUED
THAT IT WAS NOT CONFINED TO THE LAND WHICH WAS ACTUALLY IN EXCESS OF
THE 500-ACRE MAXIMUM BUT INCLUDED ALL THE PROPERTIES OF THE RESPONDENT,
AND THAT IT AUTHORIZED THE CONTINUED OPERATION OF THE BUSINESS BY THE
RECEIVER FOR AN INDEFINITE PERIOD.  TO TREAT THE LATTER OBJECTION
FIRST, AN EXAMINATION OF THE ORDER APPOINTING THE RECEIVER REVEALS THAT
PARAGRAPH 7 SPECIFICALLY CONTEMPLATES THE EXERCISE OF ITS OPTION BY THE
PEOPLE OF PUERTO RICO.  A FAIR READING OF THE ORDER REQUIRES US TO
CONCLUDE THAT THE PERIOD OF THE RECEIVERSHIP WAS DEFINITE ENOUGH, SINCE
IT WAS CLEARLY REGARDED AS A PRELIMINARY TO THE EXERCISE OF THE
OPTION.  THE RECEIVER WAS EXPRESSLY DIRECTED TO SURRENDER THE
PROPERTIES WHENEVER THE PEOPLE HAD INDICATED ITS CHOICE.  AS TO THE
PROVISION OF THE ORDER CONSIGNING THE WHOLE OF RESPONDENT'S PROPERTIES
TO THE RECEIVER, IT IS ENOUGH TO SAY THAT EVERYONE CONCEDES THAT THE
PROPERTIES CONSTITUTE A WORKING UNIT IN GROWING, CUTTING AND GRINDING
SUGAR.  TO SEPARATE THE LAND FROM THE MACHINERY AND OTHER PERSONALTY
PENDING THE PEOPLE'S ELECTION BETWEEN ALTERNATIVE PROCEDURES WOULD HAVE
BEEN INEXCUSABLE ECONOMIC WASTE.  IT WAS ALTOGETHER PROPER FOR THE
SUPREME COURT TO RECOGNIZE THESE REALITIES AND TO PERMIT THE RECEIVER
TO PRESERVE THE ENTERPRISE AS A GOING CONCERN PENDING A FINAL
SETTLEMENT.  NOTHING IN SEC. 182, UPON WHICH IT RELIED FOR AUTHORITY TO
APPOINT THE RECEIVER, REQUIRES THAT IT LIMIT THE RECEIVERSHIP IN THE
MANNER SUGGESTED BY RESPONDENT. 

THE ORDER OF THE SUPREME COURT OF PUERTO RICO SHOULD BE SUSTAINED IN
FULL.  REVERSED. 

FN1  SEC. 3, 31 STAT. 715. 

FN2  SEC. 39, 39 STAT. 951, 964, U.S.C., TITLE 48, SEC. 752. 

FN3  ACT OF JULY 22, 1935, LAWS OF PUERTO RICO, SPECIAL SESSION,
1935, P. 418. 

FN4  ACT OF AUGUST 7, 1935, LAWS OF PUERTO RICO, SPECIAL SESSION,
1935, PP. 530-532. 

FN5  "SECTION 182.  - (564 CAL.)  A RECEIVER MAY BE APPOINTED BY THE
COURT IN WHICH AN ACTION IS PENDING OR HAS PASSED TO JUDGMENT, OR BY
THE JUDGE THEREOF: 

"1.  IN AN ACTION BY A VENDOR TO VACATE A FRAUDULENT PURCHASE OF
PROPERTY, OR BY A CREDITOR TO SUBJECT ANY PROPERTY OR FUND TO HIS
CLAIM, OR BETWEEN PARTNERS OR OTHERS JOINTLY OWNING OR JOINTLY
INTERESTED IN ANY PROPERTY OR FUND, ON THE APPLICATION OF THE
PLAINTIFF, OR OF ANY PARTY WHOSE RIGHT TO OR INTEREST IN THE PROPERTY
OR FUND, OR THE PROCEEDS THEREOF, IS PROBABLE, AND WHERE IT IS SHOWN
THAT THE PROPERTY OR FUND IS IN DANGER OF BEING LOST, REMOVED, OR
MATERIALLY INJURED. 

"2.  AFTER JUDGMENT, TO CARRY THE JUDGMENT INTO EFFECT. 

"3.  AFTER JUDGMENT, TO DISPOSE OF THE PROPERTY ACCORDING TO THE
JUDGMENT, OR TO PRESERVE IT DURING THE PENDENCY OF AN APPEAL, OR IN
PROCEEDINGS IN AID OF EXECUTION, WHEN AN EXECUTION HAS BEEN RETURNED
UNSATISFIED, OR WHEN THE JUDGMENT DEBTOR REFUSES TO APPLY HIS PROPERTY
IN SATISFACTION OF THE JUDGMENT. 

"4.  IN THE CASE WHEN A CORPORATION HAS BEEN DISSOLVED, OR IS
INSOLVENT, OR IN IMMINENT DANGER OF INSOLVENCY, OR HAS FORFEITED ITS
CORPORATE RIGHTS. 

"5.  IN ALL OTHER CASES WHERE RECEIVERS HAVE HERETOFORE BEEN
APPOINTED BY THE USAGES OF COURTS OF EQUITY."  (1933 ED.) 

FN6  "SECTION 27.  - CORPORATE EXISTENCE PENDING DISSOLUTION.  ALL
CORPORATIONS, WHETHER THEY EXPIRE THROUGH THE LIMITATION CONTAINED IN
ARTICLES OF INCORPORATION OR ARE ANNULLED BY THE LEGISLATURE, OR
OTHERWISE DISSOLVED, SHALL BE CONTINUED AS BODIES CORPORATE FOR THE
PURPOSE OF PROSECUTING AND DEFENDING SUITS BY OR AGAINST THEM, AND OF
ENABLING THEM TO SETTLE AND CLOSE THEIR AFFAIRS, TO DISPOSE OF AND
CONVEY THEIR PROPERTY AND TO DIVIDE THEIR CAPITAL; BUT NOT FOR THE
PURPOSE OF CONTINUING THE BUSINESS FOR WHICH THEY WERE ESTABLISHED. 

"SEC. 28(AS AMENDED BY ACT NO. 24 OF 1916, P. 68).  - DIRECTORS AS
TRUSTEES PENDING DISSOLUTION.  UPON THE DISSOLUTION IN ANY MANNER OF A
CORPORATION, THE DIRECTORS SHALL BE THE TRUSTEES THEREOF PENDING THE
LIQUIDATION, WITH FULL POWER TO SETTLE THE AFFAIRS, COLLECT THE
OUTSTANDING DEBTS, SELL AND CONVEY THE PROPERTY AND DIVIDE THE MONEYS
AND OTHER PROPERTY AMONG THE STOCKHOLDERS, AFTER PAYING ITS DEBTS, SO
FAR AS SUCH MONEYS AND PROPERTY SHALL SUFFICE.  THEY SHALL HAVE POWER
TO MEET AND TO ACT UNDER THE BYLAWS OF THE CORPORATION, AND, UNDER
REGULATIONS TO BE MADE BY A MAJORITY OF THE SAID TRUSTEES, TO PRESCRIBE
THE TERMS AND CONDITIONS OF THE SALE OF SUCH PROPERTY, OR MAY SELL ALL
OR ANY PART FOR CASH, OR PARTLY ON CREDIT, OR TAKE MORTGAGES AND BONDS
FOR PART OF THE PURCHASE PRICE FOR ALL OR ANY PART OF THE SAID
PROPERTY.  IN CASE OF A VACANCY OR VACANCIES IN THE BOARD OF DIRECTORS
OF SUCH CORPORATION EXISTING AT THE TIME OF DISSOLUTION OR OCCURRING
SUBSEQUENTLY THERETO, THE SURVIVING DIRECTORS OR DIRECTOR SHALL BE THE
TRUSTEES OR TRUSTEE THEREOF, AS THE CASE MAY BE, WITH FULL POWER TO
SETTLE THE AFFAIRS, COLLECT THE OUTSTANDING DEBTS, SELL AND CONVEY THE
PROPERTY AND DIVIDE THE MONEYS AND OTHER PROPERTY AMONG THE
STOCKHOLDERS, AFTER PAYING ITS DEBTS, AS FAR AS SUCH MONEYS AND
PROPERTY SHALL ENABLE THEM, AND TO DO AND PERFORM ALL SUCH OTHER ACTS
AS SHALL BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT RELATIVE
TO THE WINDING UP OF THE AFFAIRS OF SUCH CORPORATION AND TO THE
DISTRIBUTION OF ITS ASSETS. 

"SEC. 29.  - POWERS AND LIABILITIES OF TRUSTEES IN LIQUIDATION.  THE
DIRECTORS CONSTITUTED TRUSTEES AS AFORESAID SHALL HAVE POWER TO SUE FOR
AND RECOVER THE AFORESAID DEBTS AND PROPERTY BY THE NAME OF THE
CORPORATION AND SHALL BE SUABLE BY THE SAME NAME, OR IN THEIR OWN NAMES
OR INDIVIDUAL CAPACITIES FOR THE DEBTS OWING BY SUCH CORPORATION, AND
SHALL BE JOINTLY AND SEVERALLY RESPONSIBLE FOR SUCH DEBTS TO THE AMOUNT
OF THE MONEY AND PROPERTY OF THE CORPORATION WHICH SHALL COME TO THEIR
HANDS OR POSSESSION AS SUCH TRUSTEES. 

"SEC. 30.  - JUDICIAL APPOINTMENT OF LIQUIDATORS.  WHEN ANY
CORPORATION SHALL BE DISSOLVED IN ANY MANNER WHATEVER, THE DISTRICT
COURT HAVING JURISDICTION OF THE PLACE WHERE ITS PRINCIPAL OFFICE IN
THE ISLAND OF PORTO RICO IS SITUATED, ON APPLICATION OF ANY CREDITOR OR
STOCKHOLDER, MAY AT ANY TIME EITHER CONTINUE THE DIRECTORS AS TRUSTEES
AS AFORESAID, OR APPOINT ONE OR MORE PERSONS TO BE LIQUIDATORS OF SUCH
CORPORATION TO TAKE CHARGE OF THE ASSETS AND EFFECTS THEREOF, TO
COLLECT THE DEBTS AND PROPERTY DUE AND BELONGING TO THE CORPORATION,
WITH POWER TO PROSECUTE AND DEFEND IN THE NAME OF THE CORPORATION, OR
OTHERWISE, ALL SUITS NECESSARY OR APPROPRIATE FOR THE PURPOSES
AFORESAID, OR TO APPOINT AN AGENT OR AGENTS UNDER THEM, OR TO DO OTHER
ACTS THAT MIGHT BE DONE BY SUCH CORPORATION IF IN BEING THAT MAY BE
NECESSARY FOR THE FINAL SETTLEMENT OF ITS UNFINISHED BUSINESS, AND THE
POWERS OF SUCH TRUSTEES OR RECEIVERS MAY BE CONTINUED SO LONG AS THE
COURTS SHALL THINK NECESSARY FOR SUCH PURPOSE."  (APPENDIX TO CODE OF
COMMERCE OF PUERTO RICO (1932 ED.)  327, AT 355.) 

FN7  SEE NOTE 5, SUPRA. 

FN8  SECTION 2 PROVIDES, IN PART: 

"WHEN ANY CORPORATION BY ITSELF OR THROUGH ANY OTHER SUBSIDIARY OR
AFFILIATED ENTITY OR AGENT IS UNLAWFULLY HOLDING, UNDER ANY TITLE, REAL
ESTATE IN PUERTO RICO, THE PEOPLE OF PUERTO RICO MAY, AT ITS OPTION,
THROUGH THE SAME PROCEEDINGS, INSTITUTE IN ITS BEHALF THE CONFISCATION
OF SUCH PROPERTY, OR THE ALIENATION THEREOF AT PUBLIC AUCTION, WITHIN A
TERM OF NOT MORE THAN SIX MONTHS COUNTING FROM THE DATE ON WHICH FINAL
SENTENCE IS RENDERED. 

"IN EVERY CASE, ALIENATION OR CONFISCATION SHALL BE THROUGH THE
CORRESPONDING INDEMNITY AS ESTABLISHED IN THE LAW OF EMINENT DOMAIN." 

FN9  ACCORDING TO THE CIRCUIT COURT'S OPINION, ON AUGUST 28, 1940,
AFTER THE ORDER APPOINTING THE RECEIVER HAD BEEN ENTERED, THE ATTORNEY
GENERAL FILED WITH THE INSULAR COURT THE FOLLOWING STATEMENT:
"THEREFORE, THE PEOPLE OF PUERTO RICO ELECTS TO HAVE ALL THE LANDS IN
THE POSSESSION OF THE RESPONDENT SOLD AT PUBLIC AUCTION, AND PRAYS THIS
COURT TO ORDER THE SALE AT PUBLIC AUCTION OF THE SAID REAL PROPERTY BY
THE RECEIVER ALREADY APPOINTED BY THIS COURT, AFTER THE SAME IS
ASSESSED IN CONFORMITY WITH THE PROVISIONS OF THE CONDEMNATION
PROCEEDINGS ACT NOW IN FORCE."  IN THE CIRCUIT COURT, THE RESPONDENT
ARGUED THAT THE OPTION PROVIDED BY ACT NO. 47 COULD NOT BE EXERCISED IN
THIS MANNER BUT ONLY BY AN ACT OF THE LEGISLATIVE ASSEMBLY.  WE SHARE
THE CIRCUIT COURT'S VIEW THAT THIS AND OTHER PROBLEMS RELATING TO THE
ACTUAL EXERCISE OF THE OPTION MUST FIRST BE PASSED UPON BY THE PUERTO
RICAN SUPREME COURT. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS ARE OF THE OPINION THAT THE
COURT BELOW CORRECTLY HELD, FOR REASONS STATED IN DETAIL IN JUDGE
MAGRUDER'S OPINION, 118 F.2D 752, THAT THE APPOINTMENT OF A RECEIVER BY
THE INSULAR COURT, IN THE CIRCUMSTANCES OF THIS CASE, WAS AN ABUSE OF
DISCRETION, AND THAT IT WAS THE DUTY OF THE CIRCUIT COURT OF APPEALS,
IN THE EXERCISE OF ITS APPELLATE AUTHORITY, TO SET THE APPOINTMENT
ASIDE. 
..END :




PEARCE V. COMMISSIONER, 315 U.S. 543 


NO. 306.  ARGUED FEBRUARY 5, 1942.  - DECIDED MARCH 9, 1942.  - 120 F.2D
228, AFFIRMED. 


1.  A DIVORCED WIFE WHEN TAXED ON PAYMENTS RECEIVED FROM AN ANNUITY
PROVIDED BY HER FORMER HUSBAND BY WAY OF SETTLEMENT IN CONNECTION WITH
THEIR DIVORCE CAN REBUT THE PRESUMPTION SUSTAINING THE TAX BY MERELY
RAISING DOUBTS AND UNCERTAINTIES AS TO WHETHER THE PAYMENTS WERE MADE
PURSUANT TO A CONTINUING OBLIGATION OF THE HUSBAND TO SUPPORT HER.  P.
547. 

THE HUSBAND, ON THE OTHER HAND, TO AVOID THE TAX, IF LAID UPON HIM,
BEARS THE BURDEN OF PROVING CLEARLY AND CONVINCINGLY THAT THE PAYMENTS
WERE NOT MADE PURSUANT TO ANY SUCH CONTINUING OBLIGATION. 

2.  ANTICIPATING DIVORCE, A HUSBAND MADE AN AGREEMENT WITH HIS WIFE
FOR THE TERMINATION OF HIS OBLIGATION TO PAY FOR HER SUPPORT, IN THE
EVENT THAT HE PURCHASED FOR HER A CERTAIN ANNUITY.  AFTER THEIR DIVORCE
(IN TEXAS) THE ANNUITY WAS PURCHASED IN ACCORDANCE WITH THE AGREEMENT
AND THE ANNUITY PAYMENTS WHICH SHE RECEIVED WERE TAXED AS HER INCOME BY
THE FEDERAL GOVERNMENT.  HELD: 

(1)  THE WIFE'S CONTENTION THAT THE TAX ON THE PAYMENTS SHOULD HAVE
BEEN LAID ON THE HUSBAND CAN NOT BE BASED ON A CONTINUING CONTRACTUAL
OBLIGATION TO CONTRIBUTE TO HER SUPPORT, BECAUSE THE AGREEMENT AND ITS
FULFILLMENT TERMINATED HIS PERSONAL OBLIGATION TO MAKE PAYMENTS.  P.
547. 

(2)  ASSUMING THAT THE POWER OF THE TEXAS COURT TO MAKE FUTURE
DIVISIONS OF PROPERTY AS BETWEEN THE HUSBAND AND WIFE IS EQUIVALENT TO
A POWER TO PROVIDE PERMANENT ALIMONY, YET THE WIFE FAILED TO REBUT THE
PRESUMPTION OF CORRECTNESS SUSTAINING THE TAX, NOT HAVING SHOWN THAT IT
WAS AT LEAST DOUBTFUL AND UNCERTAIN WHETHER THAT COURT, AS AN INCIDENT
TO ITS POWER TO REQUIRE THE HUSBAND TO SUPPORT HER, RETAINED CONTROL
OVER THE ANNUITY CONTRACT OR THE INCOME FROM IT. P. 549. 

3.  A PROPERTY SETTLEMENT MADE FOR THE PURPOSE OF MAINTAINING OR
SUPPORTING A DIVORCED WIFE MAY BE TREATED FOR INCOME TAX PURPOSES AS
MERE SECURITY FOR THE HUSBAND'S CONTINUING OBLIGATION, DEPENDENT ON
SUCH CONSIDERATIONS AS WHETHER IT CONTAINS, OR IS INTERRELATED WITH,
CONTRACTUAL OBLIGATIONS OF THE HUSBAND FOR HER SUPPORT; WHETHER THE
COURT HAS A RESERVED POWER TO ALTER OR MODIFY IT; OR WHETHER THE
HUSBAND RETAINS ANY SUBSTANTIAL INTEREST IN THE PROPERTY CONVEYED. 
WHERE THE SETTLEMENT CARRIES SOME OF THE EARMARKS OF A SECURITY DEVICE,
THEN THE POWER OF THE COURT TO ADD TO THE HUSBAND'S PERSONAL
OBLIGATIONS MAY BE ESPECIALLY SIGNIFICANT.  P. 552. 

4.  BUT WHERE THE SETTLEMENT APPEARS TO BE ABSOLUTE AND OUTRIGHT, AND
ON ITS FACE VESTS IN THE WIFE THE INDICIA OF COMPLETE OWNERSHIP, IT
WILL BE TREATED AS THAT WHICH IT PURPORTS TO BE, IN ABSENCE OF EVIDENCE
THAT IT WAS ONLY A SECURITY DEVICE FOR THE HUSBAND'S CONTINUING
OBLIGATION TO SUPPORT.  P. 552. 

5.  IN THIS CASE THE WIFE MADE NO SHOWING WHATSOEVER THAT THE TEXAS
COURT RETAINED THE POWER TO REALLOCATE THE INCOME FROM THE ANNUITY
CONTRACT OR TO CONTROL IT IN ANY WAY AS AN INCIDENT OF ITS POWER TO
REQUIRE THE HUSBAND TO SUPPORT THE WIFE; NOR DID SHE SHOW THAT THE
COURT IMPOSED ANY PERSONAL OBLIGATION ON THE HUSBAND IN RESPECT TO THE
SETTLEMENT IN QUESTION.  P. 552. 

6.  PROOF THAT THE TEXAS COURT MIGHT ADD TO THE HUSBAND'S PERSONAL
OBLIGATIONS AS AN INCIDENT TO A FUTURE PROPERTY SETTLEMENT IS NO
SUBSTITUTE FOR PROOF THAT THE COURT HAD THE POWER TO REMAKE THE
PROPERTY SETTLEMENT ACTUALLY CONSUMMATED.  P. 553. 

PEARCE V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 314 U.S. 593, TO REVIEW A JUDGMENT AFFIRMING A DECISION
OF THE BOARD OF TAX APPEALS SUSTAINING A DEFICIENCY ASSESSMENT.  42
B.T.A. 91. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER AND HER HUSBAND SEPARATED IN 1913.  THERE WAS AN AGREEMENT
PROVIDING FOR MONTHLY PAYMENTS BY THE HUSBAND FOR HER SUPPORT.  THAT
AGREEMENT WAS AMENDED IN 1916 SO AS TO PROVIDE MONTHLY PAYMENTS TO HER
OF $500 FOR LIFE.  HER HUSBAND, HOWEVER, WAS GIVEN AN OPTION TO
TERMINATE THE ARRANGEMENT BY PURCHASING AN ANNUITY CONTRACT FROM A LIFE
INSURANCE COMPANY WHICH WOULD PAY PETITIONER $500 A MONTH FOR THE REST
OF HER LIFE.  IN 1917 PETITIONER OBTAINED AN ABSOLUTE DIVORCE IN TEXAS,
HER HUSBAND ENTERING A PERSONAL APPEARANCE.  NEITHER ALIMONY NOR A
PROPERTY SETTLEMENT WAS MENTIONED IN THE DIVORCE DECREE.  THERE WERE NO
CHILDREN.  SEVERAL MONTHS AFTER THE DIVORCE, MR. PEARCE PURCHASED AN
ANNUITY FROM AN INSURANCE COMPANY FOR PETITIONER'S BENEFIT.  THE
ANNUITY PROVIDED FOR A PAYMENT OF $500 PER MONTH DURING HER LIFE. 

NEITHER PETITIONER NOR MR. PEARCE INCLUDED THE $6,000 RECEIVED BY HER
UNDER THE ANNUITY CONTRACT IN THEIR FEDERAL INCOME TAX RETURNS FOR 1935
AND 1936.  THE COMMISSIONER SENT DEFICIENCY NOTICES TO BOTH OF THEM. 
EACH APPEALED TO THE BOARD OF TAX APPEALS.  AT THE HEARING THE
COMMISSIONER CONTENDED THAT THE PAYMENTS WERE INCOME OF PETITIONER. 
THE BOARD UPHELD THAT CONTENTION.  42 B.T.A. 91.  THE CIRCUIT COURT OF
APPEALS AFFIRMED THE JUDGMENT OF THE BOARD, ONE JUDGE DISSENTING.  120
F.2D 228.  WE GRANTED THE PETITION FOR CERTIORARI BECAUSE OF THE MANNER
IN WHICH THAT COURT APPLIED THE RULE OF HELVERING V. FITCH, 309 U.S.
149, AND HELVERING V. LEONARD, 310 U.S. 80, IN CASE THE EX-WIFE RATHER
THAN THE HUSBAND WAS SOUGHT TO BE TAXED ON ALLEGED ALIMONY PAYMENTS. 

THE CIRCUIT COURT OF APPEALS REACHED THE CONCLUSION THAT PETITIONER
WAS LIABLE BY THE FOLLOWING LINE OF REASONING.  THE DETERMINATION OF
THE COMMISSIONER THAT THE MONTHLY PAYMENTS WERE INCOME OF PETITIONER
WAS PRESUMPTIVELY CORRECT; THE BURDEN TO SHOW ERROR RESTED ON
PETITIONER.  WELCH V. HELVERING, 290 U.S. 111, 115.  ERROR MIGHT BE
SHOWN BY SUBMITTING "CLEAR AND CONVINCING PROOF" (HELVERING V. FITCH,
SUPRA, P. 156) THAT THE PAYMENTS WERE MADE PURSUANT TO A CONTINUING
OBLIGATION OF HER FORMER HUSBAND TO PROVIDE FOR HER SUPPORT, SO AS TO
MAKE THE RULE OF DOUGLAS V. WILLCUTS, 296 U.S. 1, APPLICABLE.  THE
BURDEN OF ESTABLISHING ERROR IS NOT SUSTAINED BY A DIVORCED WIFE MERELY
BY SHOWING THAT AN OBLIGATION OF HER FORMER HUSBAND MIGHT HAVE
CONTINUED DESPITE THE DIVORCE.  SINCE IT IS DOUBTFUL AND UNCERTAIN
UNDER TEXAS LAW WHETHER PETITIONER'S FORMER HUSBAND WAS DISCHARGED OF
HIS MARITAL OBLIGATION BY THE SETTLEMENT IN QUESTION, PETITIONER FAILED
TO SHOW THAT THE PRESUMPTIVELY CORRECT DETERMINATION THAT SHE WAS
LIABLE WAS ERRONEOUS. 

WE DO NOT THINK THAT THAT WAS A CORRECT APPLICATION OF THE RULE OF
THE FITCH AND LEONARD CASES.  THOSE CASES HOLD THAT THE INCOME IS
TAXABLE TO THE FORMER HUSBAND, NOT ONLY WHERE IT IS CLEAR THAT PAYMENTS
TO HIS EX-WIFE WERE MADE PURSUANT TO A CONTINUING LIABILITY CREATED BY
HIS CONTRACT OR BY LOCAL LAW, BUT ALSO WHERE HIS UNDERTAKING OR LOCAL
LAW MAKES THAT QUESTION DOUBTFUL OR UNCERTAIN.  THOSE CASES, LIKE
DOUGLAS V. WILLCUTS, SUPRA, INVOLVED SITUATIONS WHERE THE DIVORCED
HUSBAND WAS SOUGHT TO BE TAXED ON PAYMENTS TO HIS EX-WIFE.  BUT THE
RULE WHICH THEY EXPRESS SUPPLIES THE CRITERIA FOR DETERMINING, IN
ABSENCE OF A DIFFERENT STATUTORY FORMULA, WHETHER PAYMENTS RECEIVED BY
THE EX-WIFE ARE PROPERLY TAXABLE TO HER OR TO HER DIVORCED HUSBAND.  IF
THE COMMISSIONER PROCEEDS AGAINST THE EX-WIFE, SHE SUSTAINS HER BURDEN
OF REBUTTING HIS PRESUMPTIVELY CORRECT DETERMINATION MERELY BY SHOWING
DOUBTS AND UNCERTAINTIES AS TO WHETHER THE PAYMENTS WERE MADE PURSUANT
TO HER FORMER HUSBAND'S CONTINUING OBLIGATION TO SUPPORT HER.  IF THE
COMMISSIONER PROCEEDS AGAINST HER FORMER HUSBAND, HE SUSTAINS HIS
BURDEN BY SUBMITTING CLEAR AND CONVINCING PROOF THAT THE PAYMENTS WERE
NOT MADE PURSUANT TO ANY SUCH CONTINUING OBLIGATION.  HELVERING V.
FULLER, 310 U.S. 69.  THE OTHER COURSE WOULD MAKE THE LIABILITY OF THE
DIVORCED WIFE OR THE DIVORCED HUSBAND WHOLLY DEPENDENT ON THE ELECTION
OF THE COMMISSIONER TO PROCEED AGAINST ONE RATHER THAN THE OTHER WHERE,
FOR EXAMPLE, LOCAL LAW WAS UNCERTAIN.  BUT THE RULE OF DOUGLAS V.
WILLCUTS, SUPRA, RESTS ON A MORE SUBSTANTIAL BASIS.  ITS ROOTS ARE IN
LOCAL LAW AND THE UNDERTAKINGS OF THE HUSBAND.  IT CALLS FOR THE USE OF
THE SAME CRITERIA WHETHER THE HUSBAND OR THE WIFE IS SOUGHT TO BE
TAXED. 

WE THINK, HOWEVER, THAT PETITIONER HAS NOT MAINTAINED HER BURDEN IN
THIS CASE.  HER FORMER HUSBAND WAS NOT UNDER A CONTINUING CONTRACTUAL
OBLIGATION TO CONTRIBUTE TO HER SUPPORT.  FOR, THE AGREEMENT MADE IN
1916 PROVIDED FOR THE TERMINATION OF HIS PERSONAL OBLIGATION TO MAKE
PAYMENTS TO HER IN THE EVENT THAT HE PURCHASED THE DESIGNATED ANNUITY. 
AND SO FAR AS TEXAS LAW IS CONCERNED, SHE HAS NOT MAINTAINED HER
BURDEN.  HER SHOWING AS TO TEXAS LAW IS ILLUSTRATED BY THE FOLLOWING. 

BY STATUTE IN TEXAS, ALIMONY MAY BE AWARDED DURING THE PENDENCY OF A
SUIT FOR A DIVORCE "UNTIL A FINAL DECREE SHALL BE MADE IN THE CASE." 
13 VERNON'S CIVIL STATS., ART. 4637.  "THIS STATUTE IS EXCLUSIVE IN ITS
VERY NATURE, AND NO ALIMONY CAN BE DECREED BY ANY COURT IN THIS STATE
EXCEPT UNDER ITS EXPRESS TERMS."  MARTIN V. MARTIN, 17 S.W.2D 789, 791
792.  IT HAS BEEN BROADLY STATED IN PHILLIPS V. PHILLIPS, 203 S.W. 77,
79 THAT, "IN THIS STATE THE LEGAL DUTY OF THE HUSBAND TO SUPPORT HIS
WIFE CEASES UPON THE SEVERANCE OF THE MARITAL BONDS, NOR HAS A COURT
THE POWER TO DECREE THAT A HUSBAND OR HIS PROPERTY MAY BE SUBJECTED TO
SUCH SUPPORT AFTER DIVORCE.  PERMANENT ALIMONY IS NOT PROVIDED FOR BY
TEXAS STATUTE."  AND SEE PAPE V. PAPE, 13 TEX. CIV. APP. 99, 35 S.W.
479; BOYD V. BOYD, 22 TEX. CIV. APP. 200, 54 S.W. 380.  IT IS, HOWEVER,
PROVIDED BY STATUTE THAT THE DIVORCE COURT SHALL ORDER "A DIVISION OF
THE ESTATE OF THE PARTIES IN SUCH A WAY AS THE COURT SHALL DEEM JUST
AND RIGHT, HAVING DUE REGARD TO THE RIGHTS OF EACH PARTY AND THEIR
CHILDREN, IF ANY."  13 VERNON'S CIVIL STATS., ART. 4638.  THAT POWER
EXTENDS NOT ONLY TO COMMUNITY PROPERTY BUT TO THE SEPARATE PROPERTY OF
THE HUSBAND.  EX PARTE SCOTT, 133 TEX. 1, 123 S.W.2D 306; CLARK V.
CLARK, 35 S.W.2D 189; BERG V. BERG, 115 S.W.2D 1171; KETON V. CLARK, 67
S.W.2D 437.  AT TIMES THE DIVORCE COURT HAS MADE SUCH A DIVISION OF THE
ESTATE AS APPARENTLY TO IMPOSE ON THE HUSBAND A PERSONAL OBLIGATION TO
MAKE STATED PAYMENTS TO HIS WIFE.  WILEY V. WILEY, 33 TEX. 358. 
FURTHERMORE, A DIVORCE DECREE WHICH DOES NOT SETTLE THE RIGHTS OF THE
PARTIES TO COMMUNITY PROPERTY MAY NOT PRECLUDE A SUBSEQUENT SUIT BY THE
WIFE TO ESTABLISH HER RIGHTS IN IT.  SEE GRAY V. THOMAS, 83 TEX. 246,
18 S.W. 721.  AND THE DECREE MAY BE CORRECTED TO CONFORM TO THE
INTENTION OF THE PARTIES.  KELLER V. KELLER, 135 TEX. 260, 141 S.W.2D
308.  THE POWER OF THE COURT TO MODIFY A PROPERTY SETTLEMENT PREVIOUSLY
APPROVED, SO AS TO GIVE THE WIFE AN INTEREST IN PROPERTY NOT COVERED BY
THE EARLIER DECREE, HAS BEEN DENIED IN ABSENCE OF FRAUD OR MISTAKE. 
CANNON V. CANNON, 43 S.W.2D 134.  PETITIONER CHALLENGES THE RELIABILITY
OF THE LATTER CASE BECAUSE ON APPEAL THE CASE WAS DISMISSED FOR WANT OF
JURISDICTION (121 TEX. 634), WHICH MEANT EITHER DISAGREEMENT WITH THE
REASONING BUT APPROVAL OF THE RESULT, OR LACK OF JURISDICTION.  3
VERNON'S CIVIL STATS., ART. 1728.  AND SEE REPUBLIC INS. CO. V. SCHOOL
DIST., 133 TEX. 545, 125 S.W.2D 270. 

WE NEED NOT, HOWEVER, ENDEAVOR TO RESOLVE THAT DOUBT.  NOR NEED WE
SPECULATE AS TO THE POWER OF THE COURT AT SOME FUTURE TIME TO ORDER A
DIVISION OF PROPERTY IN THIS CASE, AND AS AN INCIDENT THERETO TO IMPOSE
ON PETITIONER'S HUSBAND A PERSONAL OBLIGATION, AS WAS APPARENTLY DONE
BY THE DIVORCE DECREE IN WILEY V. WILEY, SUPRA.  SEE 6 TEX. L. REV. 344
DISCUSSING HELM V. HELM, 291 S.W. 648.  FOR EVEN THOUGH PETITIONER
ESTABLISHED THAT THE DIVORCE COURT RETAINED THAT BROAD POWER, NOT
SPECIFICALLY RESERVED, AND EVEN THOUGH WE ASSUME THAT THE POWER TO MAKE
A DIVISION OF PROPERTY IS THE EQUIVALENT OF A POWER TO PROVIDE
PERMANENT ALIMONY, SHE HAS NOT MAINTAINED HER BURDEN OF REBUTTING THE
PRESUMPTIVELY CORRECT DETERMINATION OF THE COMMISSIONER THAT THE INCOME
FROM THIS ANNUITY CONTRACT WAS TAXABLE TO HER.  IN ORDER TO MAINTAIN
THAT BURDEN, SHE WOULD HAVE TO SHOW THAT IT WAS AT LEAST DOUBTFUL AND
UNCERTAIN WHETHER THE TEXAS COURT, AS AN INCIDENT OF ITS POWER TO
REQUIRE THE HUSBAND TO SUPPORT HIS WIFE, RETAINED CONTROL OVER THIS
ANNUITY CONTRACT OR THE INCOME FROM IT.  THAT AT LEAST IS THE RESULT
UNLESS WE ARE TO BROADEN THE BASE ON WHICH THE FITCH, FULLER, AND
LEONARD CASES REST. 

THOSE CASES INVOLVED SO-CALLED ALIMONY TRUSTS.  IN EACH, THE TRUST
WAS IRREVOCABLE.  IN EACH, THE HUSBAND HAD AN OBLIGATION TO SUPPORT HIS
WIFE. 

IN THE FITCH CASE, THE TRUST PROVIDED THAT THE WIFE WAS TO RECEIVE,
DURING HER LIFE, $600 A MONTH FROM THE INCOME OF THE TRUST PROPERTY;
THE HUSBAND, THE BALANCE.  WE HELD THAT THE HUSBAND HAD NOT SHOWN BY
"CLEAR AND CONVINCING PROOF" THAT "IN IOWA DIVORCE LAW THE COURT HAS
LOST ALL JURISDICTION TO ALTER OR REVISE THE AMOUNT OF INCOME PAYABLE
TO THE WIFE FROM AN ENTERPRISE WHICH HAS BEEN PLACED IN TRUST.  FOR ALL
THAT WE KNOW IT MIGHT RETAIN THE POWER TO REALLOCATE THE INCOME FROM
THAT PROPERTY EVEN THOUGH IT LACKED THE POWER TO ADD TO OR SUBTRACT
FROM THE CORPUS OR TO TAP OTHER SOURCES OF INCOME.  IF IT DID HAVE SUCH
POWER, THEN IT COULD BE SAID THAT A DECREE APPROVING AN ALIMONY TRUST
OF THE KIND HERE INVOLVED MERELY PLACED UPON THE PRE-EXISTING DUTY OF
THE HUSBAND A PARTICULAR AND SPECIFIED SANCTION."  309 U.S. AT P. 156. 
AND IN SPEAKING OF THE ALIMONY TRUST INVOLVED IN DOUGLAS V. WILLCUTS,
SUPRA, WE STATED (PP. 151-152): 

"IT IS PLAIN THAT THERE THE ALIMONY TRUST, WHICH WAS APPROVED BY THE
DIVORCE DECREE, WAS MERELY SECURITY FOR A CONTINUING OBLIGATION OF THE
TAXPAYER TO SUPPORT HIS DIVORCED WIFE.  THAT WAS MADE EVIDENT NOT ONLY
BY HIS AGREEMENT TO MAKE UP ANY DEFICIENCIES IN THE $15,000 ANNUAL SUM
TO BE PAID HER UNDER THE TRUST.  IT WAS ALSO CONFIRMED BY THE POWER OF
THE MINNESOTA DIVORCE COURT SUBSEQUENTLY TO ALTER AND REVISE ITS DECREE
AND THE PROVISIONS MADE THEREIN FOR THE WIFE'S BENEFIT.  LIKEWISE
CONSISTENT WITH THE USE OF THE ALIMONY TRUST AS A SECURITY DEVICE WAS
THE PROVISION THAT ON DEATH OF THE DIVORCED WIFE THE CORPUS OF THE
TRUST WAS TO BE TRANSFERRED BACK TO THE TAXPAYER." 

IN THE LEONARD CASE, INCOME FROM THE TRUST WAS TO BE PAID TO THE WIFE
FOR HER LIFE, WHICH TOGETHER WITH INCOME FROM OTHER PROPERTY WAS
ESTIMATED AT $30,000 A YEAR.  A SEPARATION AGREEMENT PROVIDED THAT THE
HUSBAND WOULD PAY HIS WIFE AN ADDITIONAL $35,000 EACH YEAR DURING HER
LIFE, SO THAT HER AGGREGATE NET INCOME FOR THE MAINTENANCE OF HERSELF
AND HER CHILDREN WOULD BE $65,000 A YEAR.  THE SEPARATION AGREEMENT
ALSO PROVIDED THAT, IN THE EVENT THE HUSBAND'S ABILITY TO MAKE THE
ANNUAL PAYMENT OF $35,000 BECAME IMPAIRED, HE MIGHT APPLY TO A COURT
FOR A REDUCTION OF HIS OBLIGATION OF NOT LESS THAN $10,000 A YEAR.  WE
HELD THAT THE HUSBAND HAD NOT SUSTAINED HIS BURDEN OF SHOWING THAT
"LOCAL LAW AND THE ALIMONY TRUST" GAVE HIM "A FULL DISCHARGE" FROM HIS
OBLIGATION TO SUPPORT HIS WIFE.  310 U.S., P. 86.  THE TRUST AND THE
UNDERTAKING IN THE SEPARATION AGREEMENT WERE INTEGRAL PARTS OF AN
ARRANGEMENT BY WHICH THE "MAINTENANCE AND SUPPORT" OF THE WIFE "WERE
SECURED."  P. 85.  WE NOTED THAT IT WAS NOT CLEAR, UNDER NEW YORK LAW,
WHETHER OR NOT SUCH A SETTLEMENT COULD BE REMADE BY THE COURT, THOUGH
THERE WAS SOME AUTHORITY WHICH INDICATED THAT THE DIVORCE COURT'S
RESERVED POWER MIGHT BE EXERCISED "WHERE THE PROVISION IN THE SEPARATE
AGREEMENT, APPROVED BY THE DECREE, IS FOR SUPPORT AND MAINTENANCE." 
PP. 86-87.  IN VIEW OF THAT FACT AND THE NATURE OF THE SETTLEMENT, WE
CONCLUDED THAT THE HUSBAND HAD NOT SHOWN THAT THE TRUST WAS NOT MERE
SECURITY FOR HIS CONTINUING OBLIGATION TO SUPPORT HIS WIFE. 

IN THE FULLER CASE, IT WAS CLEAR, UNDER NEVADA LAW, THAT THE COURT
RETAINED NO CONTROL OVER THE DIVORCE DECREE WHICH APPROVED THE TRUST
SETTLEMENT.  SINCE THERE WAS NO SUCH RESERVED POWER, AND SINCE THE
TRUST CONTAINED NO CONTRACTUAL UNDERTAKING BY THE HUSBAND FOR SUPPORT
OF THE WIFE, WE CONCLUDED THAT HIS OBLIGATION TO SUPPORT HAD BEEN PRO
TANTO DISCHARGED.  WE HELD, HOWEVER, THAT THE HUSBAND WAS TAXABLE ON A
$40 WEEKLY PAYMENT WHICH HE HAD AGREED TO MAKE TO HIS WIFE.  BUT THAT
FACT DID NOT MAKE HIM TAXABLE ON INCOME FROM THE TRUST ALSO, SINCE THE
PROVISION FOR WEEKLY PAYMENTS AND THE TRUST "WERE NOT SO INTERRELATED
OR INTERDEPENDENT AS TO MAKE THE TRUST A SECURITY FOR THE WEEKLY
PAYMENTS."  P. 73.  WE ALSO NOTED (P. 76) THAT, THOUGH "THE DIVORCE
DECREE EXTINGUISHES THE HUSBAND'S PREEXISTING DUTY TO SUPPORT THE WIFE,
AND THOUGH NO PROVISION OF THE TRUST AGREEMENT PLACES SUCH OBLIGATION
ON HIM, THAT AGREEMENT MAY NEVERTHELESS LEAVE HIM WITH SUFFICIENT
INTEREST IN OR CONTROL OVER THE TRUST AS TO MAKE HIM THE OWNER OF THE
CORPUS FOR PURPOSES OF THE FEDERAL INCOME TAX," UNDER THE RULE OF
HELVERING V. CLIFFORD, 309 U.S. 331.    THUS, A PROPERTY SETTLEMENT
MADE FOR THE PURPOSE OF MAINTAINING OR SUPPORTING THE WIFE MAY BE
TREATED FOR INCOME TAX PURPOSES AS MERE SECURITY FOR THE HUSBAND'S
CONTINUING OBLIGATION, DEPENDENT ON SUCH CONSIDERATIONS AS WHETHER IT
CONTAINS, OR IS INTERRELATED WITH, CONTRACTUAL OBLIGATIONS OF THE
HUSBAND FOR HER SUPPORT; WHETHER THE COURT HAS A RESERVED POWER TO
ALTER OR MODIFY IT; OR WHETHER THE HUSBAND RETAINS ANY SUBSTANTIAL
INTEREST IN THE PROPERTY CONVEYED.  WHERE THE SETTLEMENT CARRIES SOME
OF THE EARMARKS OF A SECURITY DEVICE, THEN THE POWER OF THE COURT TO
ADD TO THE HUSBAND'S PERSONAL OBLIGATIONS MAY BE ESPECIALLY
SIGNIFICANT.  SEE HELVERING V. LEONARD, SUPRA.  BUT WHERE, AS HERE, THE
SETTLEMENT APPEARS TO BE ABSOLUTE AND OUTRIGHT, AND ON ITS FACE VESTS
IN THE WIFE THE INDICIA OF COMPLETE OWNERSHIP, IT WILL BE TREATED AS
THAT WHICH IT PURPORTS TO BE, IN ABSENCE OF EVIDENCE THAT IT WAS ONLY A
SECURITY DEVICE FOR THE HUSBAND'S CONTINUING OBLIGATION TO SUPPORT. 
THERE MAY BE DIFFICULTY IN PLACING A PARTICULAR CASE ON ONE SIDE OF THE
LINE RATHER THAN THE OTHER.  BUT AS STATED BY MR. JUSTICE HOLMES IN
IRWIN V. GAVIT, 268 U.S. 161, 168, "THAT IS THE QUESTION IN PRETTY MUCH
EVERYTHING WORTH ARGUING IN THE LAW."  AND SEE HARRISON V. SCHAFFNER,
312 U.S. 579, 583. 

AS WE HAVE SAID, PETITIONER HAS MADE NO SHOWING WHATSOEVER THAT THE
TEXAS COURT RETAINED THE POWER TO REALLOCATE THE INCOME FROM THIS
ANNUITY CONTRACT OR TO CONTROL IT IN ANY WAY AS AN INCIDENT OF ITS
POWER TO REQUIRE THE HUSBAND TO SUPPORT THE WIFE.  SHE HAS NOT SHOWN
THAT THE DIVORCE COURT IMPOSED ANY PERSONAL OBLIGATION ON THE HUSBAND
IN RESPECT TO THE SETTLEMENT IN QUESTION.  AND SHE IS NOT AIDED BY
THOSE CASES WHICH ENFORCE AGREEMENTS OF THE HUSBAND TO MAKE PERIODIC
PAYMENTS TO THE WIFE.  SEE JOHNSON V. JOHNSON, 14 S.W.2D 805.  THERE IS
NO SUCH AGREEMENT HERE.  PROOF THAT THE TEXAS COURT MIGHT ADD TO THE
HUSBAND'S PERSONAL OBLIGATIONS AS AN INCIDENT TO A FUTURE PROPERTY
SETTLEMENT IS NO SUBSTITUTE FOR PROOF THAT THE COURT HAD THE POWER TO
REMAKE THIS PROPERTY SETTLEMENT AFTER IT WAS CONSUMMATED.  HENCE THERE
IS NO GROUND FOR CONCLUDING THAT THIS SETTLEMENT, WHICH IS ABSOLUTE ON
ITS FACE, IS MERE SECURITY FOR AN OBLIGATION OF A HUSBAND TO SUPPORT
HIS WIFE. 

"THE CORRECT GROUND FOR REFUSING TO TAX SUCH INCOME TO THE HUSBAND IS
MERELY THAT IT IS THE LUMP SUM WHICH DISCHARGES HIM AND NOT THE FUTURE
INCOME RECEIVED BY THE WIFE."  PAUL, FIVE YEARS WITH DOUGLAS V.
WILLCUTS, 53 HARV. L. REV. 1, 17, NOTE 44.  WE NOTED IN HELVERING V.
FULLER, SUPRA, P. 74, THAT OUTRIGHT TRANSFERS OF PROPERTY TO THE WIFE,
THOUGH PROVIDING FOR HER MAINTENANCE AND SUPPORT, WERE NO DIFFERENT
FROM CASES "WHERE ANY DEBTOR, VOLUNTARILY OR UNDER THE COMPULSION OF A
COURT DECREE, TRANSFERS SECURITIES, A FARM, AN OFFICE BUILDING, OR THE
LIKE, TO HIS CREDITOR IN WHOLE OR PARTIAL PAYMENT OF HIS DEBT."  WE DO
NOT THINK THAT IT WOULD BE PROPER TO EXTEND THE RULE OF DOUGLAS V.
WILLCUTS, SUPRA, TO SUCH A SITUATION.  THE POSSIBILITY THAT THE DIVORCE
COURT MIGHT ADD TO THE HUSBAND'S PERSONAL OBLIGATION DOES NOT ALTER THE
RESULT.  AS IN THE FULLER CASE, THE TRANSFER OF PROPERTY TO THE WIFE
MIGHT RESULT ONLY IN A PARTIAL DISCHARGE OF THE HUSBAND'S OBLIGATION. 
IF THE HUSBAND UNDERTOOK, OR WAS DIRECTED, TO MAKE OTHER PAYMENTS, HE
MIGHT BE TAXABLE ON THEM.  BUT THE FACT THAT HE IS TAXABLE ON A PART OF
THE PAYMENTS RECEIVED BY THE WIFE DOES NOT NECESSARILY MAKE HIM TAXABLE
ON ALL.  HELVERING V. FULLER, SUPRA, P. 73.  HENCE THE STATEMENT IN
HELVERING V. FITCH, SUPRA, 309 U.S. AT P. 156, THAT IT MUST BE CLEAR
"THAT LOCAL LAW AND THE ALIMONY TRUST HAVE GIVEN THE DIVORCED HUSBAND A
FULL DISCHARGE AND LEAVE NO CONTINUING OBLIGATION HOWEVER CONTINGENT"
IS TO BE READ IN LIGHT OF THE FACT THAT THE ALIMONY TRUST IN THAT CASE
WAS DEEMED TO BE A MERE SECURITY DEVICE FOR THE HUSBAND'S CONTINUING
OBLIGATION TO SUPPORT.  FOR THE HUSBAND WAS RELIEVED FROM PAYMENT OF
THE TAX ON INCOME FROM THE PROPERTY SETTLEMENT IN THE FULLER CASE
THOUGH HE HAD A CONTINUING OBLIGATION TO PAY THE WIFE $40 A WEEK. 

IF THE RULE OF DOUGLAS V. WILLCUTS, SUPRA, IS NOT TO BE EXTENDED TO
THIS TYPE OF CASE, THEN, ON THE SHOWING WHICH HAS BEEN MADE, THE
HUSBAND WOULD HAVE SUSTAINED HIS BURDEN IN CASE THE COMMISSIONER HAD
PROCEEDED AGAINST HIM.  CF. MITCHELL V. COMMISSIONER, 38 B.T.A. 1336. 
CLEARLY, THEN, THE WIFE MAY NOT ESCAPE. 

SUCH CASES AS HELVERING V. HORST, 311 U.S. 112, HELVERING V. EUBANK,
311 U.S. 122, AND HARRISON V. SCHAFFNER, SUPRA, ARE NOT OPPOSED TO THIS
RESULT.  THOSE CASES DEALT WITH SITUATIONS WHERE THE TAXPAYER HAD MADE
ASSIGNMENTS OF INCOME FROM PROPERTY.  HE WAS HELD TAXABLE ON THE INCOME
ASSIGNED BY REASON OF THE PRINCIPLE "THAT THE POWER TO DISPOSE OF
INCOME IS THE EQUIVALENT OF OWNERSHIP OF IT AND THAT THE EXERCISE OF
THE POWER TO PROCURE ITS PAYMENT TO ANOTHER, WHETHER TO PAY A DEBT OR
TO MAKE A GIFT, IS WITHIN THE REACH" OF THE FEDERAL INCOME TAX LAW. 
HARRISON V. SCHAFFNER, SUPRA, P. 580.  BUT IN THOSE CASES THE DONOR OR
GRANTOR HAD "PARTED WITH NO SUBSTANTIAL INTEREST IN PROPERTY OTHER THAN
THE SPECIFIED PAYMENTS OF INCOME."  ID. P. 583.  HERE HE HAS PARTED
WITH THE CORPUS.  AND "THE TAX IS UPON INCOME AS TO WHICH, IN THE
GENERAL APPLICATION OF THE REVENUE ACTS, THE TAX LIABILITY ATTACHES TO
OWNERSHIP."  BLAIR V. COMMISSIONER, 300 U.S. 5, 12.  FINALLY, THERE IS
NO BARRIER UNDER THE INCOME TAX LAWS TO TAXING THE HOLDER OF AN ANNUITY
ON THE INCOME RECEIVED, HOWEVER HIS INTEREST IN THE FUND WHICH PRODUCES
THE INCOME MAY BE DESCRIBED.  CF. IRWIN V. GAVIT, SUPRA.  AFFIRMED. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

THE SOCIAL FACT THAT A HUSBAND IS NORMALLY UNDER A RESPONSIBILITY TO
PROVIDE FOR HIS WIFE EVEN AFTER THEY ARE DIVORCED, IS THE BASIS FOR THE
RULE THAT MONIES RECEIVED BY A WIFE UNDER A DIVORCE SETTLEMENT ARE
PRESUMED TO BE IN DISCHARGE OF A CONTINUING OBLIGATION OF THE HUSBAND. 
I THEREFORE AGREE WITH THE DECISION OF THE COURT TO THE EXTENT THAT IT
REINFORCES THIS RULE AS A RULE OF POLICY, AND NOT ONE OF CAPRICE
VARYING WITH THE SEX OF THE TAXPAYER AGAINST WHOM THE COMMISSIONER
CHOOSES TO PROCEED.  I AGREE THAT IF THE COMMISSIONER PROCEEDS AGAINST
THE WIFE, "SHE SUSTAINS HER BURDEN OF REBUTTING HIS PRESUMPTIVELY
CORRECT DETERMINATION MERELY BY SHOWING DOUBTS AND UNCERTAINTIES AS TO
WHETHER THE PAYMENTS WERE MADE PURSUANT TO HER FORMER HUSBAND'S
CONTINUING OBLIGATION TO SUPPORT HER," AND THAT IF, ON THE OTHER HAND,
THE COMMISSIONER DETERMINES THAT THE PAYMENTS ARE TAXABLE TO THE
HUSBAND, THE LATTER SUSTAINS HIS BURDEN ONLY "BY SUBMITTING CLEAR AND
CONVINCING PROOF THAT THE PAYMENTS WERE NOT MADE PURSUANT TO ANY SUCH
CONTINUING OBLIGATION."  BUT I DO NOT AGREE THAT THE PETITIONER HAS
FAILED TO MAKE THE SHOWING WHICH IS REQUIRED UNDER THE RULE PROFESSED
BY THE COURT. 

LOCAL LAW MAY PROVIDE THAT THE TRANSFER OF PROPERTY UNDER A DIVORCE
SETTLEMENT FINALLY AND DEFINITIVELY TERMINATES A HUSBAND'S OBLIGATION
TO SUPPORT HIS WIFE, AND THAT, ONCE SUCH A SETTLEMENT IS MADE, THE WIFE
LOSES HER RIGHT TO APPLY TO A COURT FOR AN ORDER REQUIRING THE HUSBAND
TO SUPPORT HER.  IF THE LOCAL LAW GIVES THE SETTLEMENT SUCH EFFECT, IT
IS IMMATERIAL WHAT THE NATURE OF THE TRANSFERRED PROPERTY IS.  FOR, IN
SUCH A CASE, THE INCOME DERIVED FROM THE PROPERTY CANNOT BE REGARDED AS
CONFERRING ANY BENEFIT UPON THE HUSBAND, AND IT IS THEREFORE TAXABLE TO
THE WIFE.  ON THE OTHER HAND, LOCAL LAW MAY PROVIDE THAT, EVEN THOUGH A
HUSBAND HAS MADE A COMPLETE, IRREVOCABLE TRANSFER OF PROPERTY, HE HAS
NEVERTHELESS NOT OBTAINED A FULL DISCHARGE OF HIS MARITAL OBLIGATIONS
TO HIS WIFE, AND THAT, WHERE CIRCUMSTANCES IN THE FUTURE MAY WARRANT, A
COURT CAN ORDER THE HUSBAND TO MAKE FURTHER CONTRIBUTIONS TO HER
SUPPORT.  IN SUCH A CASE, THE HUSBAND IS STILL UNDER A "CONTINUING
OBLIGATION HOWEVER CONTINGENT," HELVERING V. FITCH, 309 U.S. 149, 156;
HELVERING V. LEONARD, 310 U.S. 80, 84, AND, SINCE THE INCOME RECEIVED
BY THE WIFE FROM THE PROPERTY CONTRIBUTES TO HER SUPPORT AND THUS
SERVES TO DISCHARGE THE OBLIGATION WHICH UNDER LOCAL LAW THE HUSBAND
STILL OWES HER, THE INCOME SHOULD BE TAXABLE TO HIM.  "THE DOMINANT
PURPOSE OF THE REVENUE LAWS IS THE TAXATION OF INCOME TO THOSE WHO EARN
OR OTHERWISE CREATE THE RIGHT TO RECEIVE IT AND ENJOY THE BENEFIT OF IT
WHEN PAID."  HELVERING V. HORST, 311 U.S. 112, 119; AND SEE HARRISON V.
SCHAFFNER, 312 U.S. 579. 

THE FACT THAT THE WIFE MAY, YEARS AFTER THE SETTLEMENT, HAVE TO GO TO
COURT FOR AN ORDER REQUIRING THE HUSBAND TO MAKE ADDITIONAL PAYMENTS
FOR HER SUPPORT IS OF NO LEGAL CONSEQUENCE IF THE HUSBAND MAY BE
REQUIRED TO MAKE SUCH PAYMENTS.  A LEGAL OBLIGATION MAY CONTINUE, EVEN
THOUGH ITS BURDEN IS CONTINGENT UPON FUTURE JUDICIAL ACTION.  A WIFE'S
RECEIPT OF INCOME FROM PROPERTY SETTLED UPON HER MAY MAKE IT
UNNECESSARY TO HER EVER TO APPLY FOR A COURT ORDER.  BUT IT DOES NOT
FOLLOW THAT, UNLESS AND UNTIL SHE GOES TO COURT FOR SUCH AN ORDER, HER
HUSBAND IS UNDER NO LEGAL OBLIGATION TO SUPPORT HER.  IF THE INCOME
FROM THE PROPERTY SHOULD DWINDLE TO THE POINT WHERE THE WIFE CAN NO
LONGER MAINTAIN HERSELF, AND THE LAW HAS CONTINUED ITS HOLD UPON THE
HUSBAND SO THAT HE MAY BE REQUIRED TO MAKE FURTHER CONTRIBUTIONS TO HER
SUPPORT, THEN PLAINLY THE HUSBAND IS STILL UNDER A "CONTINUING
OBLIGATION HOWEVER CONTINGENT."  THE DETERMINATIVE FACT IS THAT THE LAW
HAS CONTINUED ITS HOLD UPON THE HUSBAND, NOT THAT IT HAS RESERVED THE
POWER TO MODIFY THE PARTICULAR SETTLEMENT. 

IT IS UTTERLY IMMATERIAL WHETHER THE PROPERTY TRANSFERRED WAS AN
IRREVOCABLE TRUST, AS IN THE FITCH AND LEONARD CASES, OR AN ANNUITY
CONTRACT, AS WE HAVE HERE.  FOR THE ANNUITY IS TAXABLE INCOME, IRWIN V.
GAVIT, 268 U.S. 161, AND THE PROCUREMENT, BY THE HUSBAND'S PURCHASE, OF
ITS PAYMENT TO HIS WIFE RENDERS THE ANNUITY TAXABLE INCOME TO HIM IF IT
IS IN DISCHARGE OF HIS OBLIGATION, QUITE AS MUCH AS IF HE HAD PROCURED
THE PAYMENT BY CREATING A TRUST OF HIS PROPERTY.  HARRISON V.
SCHAFFNER, SUPRA. 

IN EVERY CASE, THE DECISIVE INQUIRY IS WHETHER THE HUSBAND'S
OBLIGATION SUBSISTS AFTER THE DIVORCE SETTLEMENT, OR WHETHER, AS A
RESULT OF THE SETTLEMENT, HE IS QUITS OF HIS WIFE, ONCE AND FOR ALL,
FOR BETTER OR FOR WORSE.  IF HE IS UNDER A CONTINUING OBLIGATION, THE
PROPERTY TRANSFERRED, WHETHER IT BE AN IRREVOCABLE TRUST OR AN ANNUITY
CONTRACT, IS A SECURITY DEVICE ONLY IN THE SENSE THAT IT OPERATES TO
SECURE THE FULFILLMENT OF THE OBLIGATION.  IF THE FACT THAT THE HUSBAND
HAS DIVESTED HIMSELF OF CONTROL OVER THE TRANSFERRED PROPERTY WERE
DETERMINATIVE, CERTAINLY THE FITCH AND LEONARD CASES, AT LEAST, WOULD
HAVE BEEN DECIDED THE OTHER WAY.  FOR IN EACH OF THESE CASES THE
HUSBAND CONVEYED AN ABSOLUTELY IRREVOCABLE TRUST, OVER WHICH HE HAD NO
GREATER CONTROL THAN THE HUSBAND HAS OVER THE ANNUITY IN THE CASE
BEFORE US.  THESE CASES SHOW THAT IF A HUSBAND IS UNDER A CONTINUING
OBLIGATION TO SUPPORT HIS WIFE, INCOME FROM THE PROPERTY IS TAXABLE TO
HIM, NOT BECAUSE HE HAS RETAINED ANY INTEREST IN OR CONTROL OVER THE
PROPERTY, BUT BECAUSE THE INCOME DISCHARGES PRO TANTO A LEGAL
OBLIGATION WHICH HE OWES AND THUS CONFERS A TAXABLE BENEFIT UPON HIM. 
THE ULTIMATE CRITERION OF TAXABILITY, THEREFORE, IS NOT WHETHER A STATE
COURT HAS RESERVED POWER TO CONTROL THE PROPERTY TRANSFERRED BY A
HUSBAND UNDER A DIVORCE SETTLEMENT, BUT WHETHER "THE COURT LACKS THE
POWER TO ADD TO HIS PERSONAL OBLIGATIONS."  HELVERING V. LEONARD, 310
U.S. 80, 87. 

IN LAW, AS IN LIFE, LINES HAVE TO BE DRAWN.  BUT THE FACT THAT A LINE
HAS TO BE DRAWN SOMEWHERE DOES NOT JUSTIFY ITS BEING DRAWN ANYWHERE. 
THE LINE MUST FOLLOW SOME DIRECTION OF POLICY, WHETHER ROOTED IN LOGIC
OR EXPERIENCE.  LINES SHOULD NOT BE DRAWN SIMPLY FOR THE SAKE OF
DRAWING LINES. 

THE DECISIONS OF THIS COURT DEALING WITH THE QUESTION BEFORE US HAVE
TURNED UPON WHETHER LOCAL LAW WAS UNCERTAIN AS TO THE EXISTENCE OF A
CONTINUING OBLIGATION ON THE PART OF THE HUSBAND TO SUPPORT THE WIFE. 
THE OPINION OF THE COURT NOW INTRODUCES ANOTHER ELEMENT, NAMELY,
WHETHER THE LOCAL LAW IS UNCERTAIN AS TO THE POWER OF THE STATE COURTS
TO REMAKE THE PARTICULAR SETTLEMENT.  THIS, IT SEEMS TO ME, HAS NO
VALID RELATION TO THE BASIC PRINCIPLE OF TAX LIABILITY THAT "HE WHO
RECEIVES BENEFITS SHOULD BE TAXED."  WHETHER A HUSBAND IS BENEFITED
FROM THE PAYMENT OF MONIES TO HIS DIVORCED WIFE DEPENDS UPON HIS
OBLIGATION TO HER WHICH THE PAYMENT OF THE MONIES SERVED TO DISCHARGE,
NOT UPON THE NATURE OF THE WIFE'S INTEREST IN THE PROPERTY HE HAS
TRANSFERRED TO HER.  TO INTRODUCE SUCH AN UNWARRANTED REFINEMENT IS TO
CLOG THE ADMINISTRATION OF THE REVENUE LAWS. 

BUT, IN ANY EVENT, ALL OF THE JUDGES OF THE CIRCUIT COURT OF APPEALS
WERE AGREED THAT "THE LAW OF TEXAS IS UNCERTAIN AS TO WHETHER THE
TAXPAYER'S HUSBAND DISCHARGED HIMSELF OF HIS MARITAL LIABILITY BY THE
SETTLEMENT AT BAR."  120 F.2D 228, 230.  THIS GENERAL UNCERTAINTY AS TO
TEXAS LAW IS CONTROVERTED NOW, NOT BY CONTROLLING TEXAS AUTHORITY BUT
BY EXTENDED ARGUMENTATION AND SPECULATION.  THE COURT SUGGESTS THAT,
HAD THE COMMISSIONER GONE AGAINST THE HUSBAND, HE WOULD HAVE SUSTAINED
THE BURDEN AS HERETOFORE DEFINED, NAMELY, OF SHOWING, "BY SUBMITTING
CLEAR AND CONVINCING PROOF," THAT UNDER LOCAL LAW HE WAS UNDER NO
CONTINUING OBLIGATION.  SUPPORT FOR THE PROPOSITION IS DRAWN NOT FROM
ANY TEXAS AUTHORITY, WHETHER STATUTE OR DECISION, BUT FROM A DECISION
OF THE BOARD OF TAX APPEALS, MITCHELL V. COMMISSIONER, 38 B.T.A. 1336. 
BUT, IN THAT CASE THERE WAS A DIVISION OF PROPERTY BETWEEN HUSBAND AND
WIFE, WHICH INCLUDED PROPERTY BELONGING TO THE WIFE UNDER AN EARLIER
ARRANGEMENT ENTIRELY UNRELATED TO THE HUSBAND'S MARITAL OBLIGATIONS. 
THE BOARD HELD THAT THE INCOME FROM SUCH PROPERTY COULD NOT, THEREFORE,
BE TAXED TO THE HUSBAND.  AS ITS OPINION SHOWS, THE DECISION DID NOT
TURN ON THE TEXAS LAW OF DIVORCE:  "WE THINK THAT THE TRUST INCOME
WHICH WAS PAID TO HER (THE WIFE) WAS HER SEPARATE INCOME.  IT WAS NOT
PAID IN SATISFACTION OF ANY LEGAL OBLIGATION OF J. A. MITCHELL (THE
HUSBAND) AND IT IS NOT TAXABLE TO HIM."  38 B.T.A. AT 1342.    THE
COURT'S EXEGESIS OF TEXAS LAW SHOWS IT TO BE NO LESS UNCERTAIN THAN WAS
THE IOWA LAW IN THE FITCH CASE, OR THE NEW YORK LAW IN THE LEONARD
CASE.  THE EFFECT OF THE COURT'S RULING THAT THE WIFE, IN ORDER TO
ESCAPE TAX LIABILITY, MUST CLEARLY ESTABLISH THAT THE STATE COURT HAS
RESERVED THE POWER TO MODIFY THE TERMS OF THE PARTICULAR PROPERTY
SETTLEMENT IS TO REJECT THE RULE OF POLICY ENUNCIATED EARLIER IN ITS
OPINION.  FOR THERE IS NO CLEAR TEXAS AUTHORITY, AND UNDER THE RULE OF
THE FITCH AND LEONARD CASES, WHICH THE COURT DOES NOT PURPORT TO
MODIFY, THE HUSBAND WOULD BE UNABLE TO SHOW, "NOT BY MERE INFERENCE AND
CONJECTURE BUT BY 'CLEAR AND CONVINCING PROOF'" (HELVERING V. LEONARD,
SUPRA, AT 86; SEE HELVERING V. FITCH, SUPRA, AT 156), THAT THE PAYMENTS
MADE TO HIS WIFE DID NOT DISCHARGE A CONTINUING OBLIGATION WHICH HE
OWED HER.  THEREFORE, LIABILITY UNDER THE TAX LAW IS MADE ACTUALLY TO
DEPEND UPON WHETHER THE COMMISSIONER ELECTS TO GO AGAINST THE HUSBAND
OR THE WIFE.  HAVING CLOSED THE FRONT DOOR TO DETERMINATION OF TAX
LIABILITY BY CAPRICE, THE COURT ALLOWS CAPRICE TO ENTER THROUGH THE
BACK DOOR OF "PRESUMPTION." 

WE BROUGHT THIS CASE HERE IN ORDER TO CLARIFY AN IMPORTANT QUESTION
ARISING UNDER THE FEDERAL REVENUE LAWS, NOT TO RE-EXAMINE THE
CORRECTNESS OF THE LOWER COURT'S FINDING REGARDING THE UNCERTAINTY OF
TEXAS LAW AS APPLIED TO THIS CASE.  THE GENERAL UNCERTAINTY OF TEXAS
LAW WITH RESPECT TO CONTROL OVER DIVORCE SETTLEMENTS IS CONCEDED - AND
THAT IS THE DECISIVE FACTOR FOR OUR PURPOSE.  THE ABSENCE OF SPECIFIC
TEXAS AUTHORITY DEALING WITH SUCH AN ANNUITY SETTLEMENT AS WE HAVE HERE
DOES NOT LESSEN OR REMOVE THAT UNCERTAINTY, OR JUSTIFY US IN MAKING
ASSUMPTIONS REGARDING THE TEXAS LAW AFFECTING SUCH A SETTLEMENT.  WHERE
PROPHECY AS TO A STATE COURT'S RULING ON ITS LOCAL LAW IS NOT
IMPERATIVELY REQUIRED OF US, EXPERIENCE COUNSELS ABSTENTION FROM
PROPHECY.  NO RULING OF OURS CAN MAKE TEXAS LAW. 

I BELIEVE THEREFORE THAT THE JUDGMENT BELOW SHOULD BE REVERSED
BECAUSE OF THE RULING ON FEDERAL LAW AS TO WHICH WE ALL AGREE, AND THAT
TEXAS LAW SHOULD BE LEFT WHERE THE CIRCUIT COURT OF APPEALS FOUND IT. 

THE CHIEF JUSTICE JOINS IN THIS DISSENT. 
..END :




















STONITE CO. V. MELVIN LLOYD CO., 315 U.S. 561 


NO. 321.  ARGUED FEBRUARY 10, 1942.  - DECIDED MARCH 9, 1942.  - 119
F.2D 883, REVERSED. 


1.  VENUE IN PATENT INFRINGEMENT SUITS IS GOVERNED EXCLUSIVELY BY
JUD.  CODE SEC. 48, WHICH PROVIDES THAT, IN SUCH SUITS, THE DISTRICT
COURTS SHALL HAVE JURISDICTION IN THE DISTRICT OF WHICH THE DEFENDANT
IS AN INHABITANT, OR IN ANY DISTRICT IN WHICH THE DEFENDANT SHALL HAVE
COMMITTED ACTS OF INFRINGEMENT AND HAVE A REGULAR AND ESTABLISHED PLACE
OF BUSINESS.  P. 563. 

IN A SUIT FOR PATENT INFRINGEMENT BROUGHT IN ONE OF TWO DISTRICTS IN
THE SAME STATE, AN INDIVIDUAL WHO HAS NO REGULAR AND ESTABLISHED PLACE
OF BUSINESS IN THAT DISTRICT AND WHO IS AN INHABITANT OF THE OTHER
DISTRICT CAN NOT PROPERLY BE JOINED AS A DEFENDANT. 

2.  THE PROVISION OF JUD.  CODE SEC. 52 PERMITTING SUITS, NOT OF A
LOCAL NATURE, AGAINST TWO OR MORE DEFENDANTS RESIDING IN DIFFERENT
JUDICIAL DISTRICTS WITHIN THE SAME STATE TO BE BROUGHT IN EITHER
DISTRICT, IS INAPPLICABLE TO PATENT INFRINGEMENT SUITS.  P. 566. 

STONITE PRODUCTS CO. V. MELVIN LLOYD CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 314 U.S. 594, TO REVIEW A DECREE WHICH REVERSED THE
ACTION OF THE DISTRICT COURT IN DISMISSING, AS TO ONE OF TWO
DEFENDANTS, A BILL ALLEGING INFRINGEMENT OF A PATENT.  36 F.SUPP.  29. 
THE OTHER DEFENDANT DEFAULTED. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE ONLY QUESTION PRESENTED FOR OUR DETERMINATION IS WHETHER SEC. 48
OF THE JUDICIAL CODE (28 U.S.C. SEC. 109) IS THE SOLE PROVISION
GOVERNING THE VENUE OF PATENT INFRINGEMENT LITIGATION, OR WHETHER THAT
113).  SECTION 48 GIVES JURISDICTION OF SUITS FOR PATENT INFRINGEMENT
TO THE UNITED STATES DISTRICT COURTS IN THE DISTRICT OF WHICH THE
DEFENDANT IS AN INHABITANT, OR IN ANY DISTRICT IN WHICH THE DEFENDANT
SHALL HAVE COMMITTED ACTS OF INFRINGEMENT AND HAVE A REGULAR AND
ESTABLISHED PLACE OF BUSINESS.  SECTION 52 PERMITS SUITS, NOT OF A
LOCAL NATURE, AGAINST TWO OR MORE DEFENDANTS, RESIDING IN DIFFERENT
JUDICIAL DISTRICTS WITHIN THE SAME STATE, TO BE BROUGHT IN EITHER
DISTRICT.  FN1 

PETITIONER, STONITE PRODUCTS COMPANY, AN INHABITANT OF THE EASTERN
DISTRICT OF PENNSYLVANIA WITHOUT A REGULAR AND ESTABLISHED PLACE OF
BUSINESS IN THE WESTERN DISTRICT OF THAT STATE, WAS SUED JOINTLY WITH
LOWE SUPPLY COMPANY, AN INHABITANT OF THE WESTERN DISTRICT, IN THE
WESTERN DISTRICT FOR INFRINGEMENT OF PATENT NO. 1,777,759 FOR A BOILER
STAND.  PETITIONER WAS SERVED WITH PROCESS IN THE EASTERN DISTRICT,
ENTERED A SPECIAL APPEARANCE IN THE ACTION IN THE WESTERN DISTRICT, AND
MOVED TO DISMISS OR QUASH THE RETURN OF SERVICE BECAUSE VENUE WAS LAID
IN THE WRONG DISTRICT.  THE DISTRICT COURT GRANTED THE MOTION AND
DISMISSED THE CAUSE AS TO PETITIONER.  FN2 36 F.SUPP.  29.  THE CIRCUIT
COURT OF APPEALS REVERSED.  119 F.2D 883.  WE GRANTED CERTIORARI
BECAUSE OF AN ASSERTED CONFLICT WITH MOTOSHAVER, INC. V. SCHICK DRY
SHAVER, INC., 100 F.2D 236(C.C.A. 9). 

WE HOLD THAT SEC. 48 IS THE EXCLUSIVE PROVISION CONTROLLING VENUE IN
PATENT INFRINGEMENT PROCEEDINGS. 

695, AND ITS SCOPE CAN BEST BE DETERMINED FROM AN EXAMINATION OF THE
REASONS FOR ITS ENACTMENT. 

79, PERMITTED CIVIL SUITS TO BE BROUGHT IN THE FEDERAL COURTS AGAINST A
PERSON ONLY IN THE DISTRICT OF WHICH HE WAS AN INHABITANT OR IN WHICH
HE WAS FOUND AT THE TIME OF SERVING THE WRIT.  THAT SECTION APPLIED TO
SUITS FOR PATENT INFRINGEMENT.  CHAFFEE V. HAYWARD, 20 HOW.  208, 216;
ALLEN V. BLUNT, 1 BLATCHF.  408, FED. CAS. NO. 215.  THE ACT OF MARCH
3, 1875, C. 137, 18 STAT. 470, RETAINED THE PROVISION ALLOWING SUIT
WHEREVER THE DEFENDANT COULD BE FOUND.  THE ABUSES ENGENDERED BY THIS
EXTENSIVE VENUE PROMPTED THE ACT OF MARCH 3, 1887, C. 373, 24 STAT.
552, WHICH, AS AMENDED BY THE ACT OF AUGUST 13, 1888, C. 866, 25 STAT.
433, PERMITTED CIVIL SUITS TO BE INSTITUTED ONLY IN THE DISTRICT OF
WHICH THE DEFENDANT WAS AN INHABITANT, EXCEPT THAT IN DIVERSITY
JURISDICTION CASES SUIT COULD BE STARTED IN THE DISTRICT OF THE
PLAINTIFF'S OR THE DEFENDANT'S RESIDENCE.  THE SUBSTANCE OF THOSE
PROVISIONS WAS REENACTED AS SEC. 51 OF THE JUDICIAL CODE (28 U.S.C.
SEC. 112). 

AFTER THE HOLDING OF IN RE HOHORST, 150 U.S. 653, THAT THE ACT OF
1887 AS AMENDED DID NOT APPLY TO A SUIT AGAINST AN ALIEN OR A FOREIGN
CORPORATION, "ESPECIALLY IN A SUIT FOR THE INFRINGEMENT OF A PATENT
RIGHT," THE LOWER FEDERAL COURTS BECAME UNCERTAIN AS TO THE
APPLICABILITY OF THE ACT OF 1887 TO PATENT INFRINGEMENT PROCEEDINGS. 
FN3  IN EXPLANATION OF HOHORST'S CASE, IT WAS SAID IN IN RE KEASBEY &
MATTISON CO., 160 U.S. 221, 230, THAT "IT WAS A SUIT FOR INFRINGEMENT
OF A PATENT RIGHT, EXCLUSIVE JURISDICTION OF WHICH HAD BEEN GRANTED TO
THE CIRCUIT COURTS OF THE UNITED STATES ...  ; AND WAS THEREFORE NOT
AFFECTED BY GENERAL PROVISIONS REGULATING THE JURISDICTION OF THE
COURTS OF THE UNITED STATES, CONCURRENT WITH THAT OF THE SEVERAL
STATES."  THEREAFTER THE LOWER FEDERAL COURTS, FOR THE MOST PART, TOOK
THE POSITION THAT THE ACT OF 1887 AS AMENDED DID NOT APPLY TO SUITS FOR
PATENT INFRINGEMENT, AND THAT INFRINGERS COULD BE SUED WHEREVER THEY
COULD BE FOUND.  FN4 

THE ACT OF 1897 WAS ADOPTED TO DEFINE THE EXACT JURISDICTION OF THE
FEDERAL COURTS IN ACTIONS TO ENFORCE PATENT RIGHTS, AND THUS ELIMINATE
THE UNCERTAINTY PRODUCED BY THE CONFLICTING DECISIONS ON THE
APPLICABILITY OF THE ACT OF 1887, AS AMENDED, TO SUCH LITIGATION.  FN5
THAT PURPOSE INDICATES THAT CONGRESS DID NOT INTEND THE ACT OF 1897 TO
DOVETAIL WITH THE GENERAL PROVISIONS RELATING TO THE VENUE OF CIVIL
SUITS, BUT RATHER THAT IT ALONE SHOULD CONTROL VENUE IN PATENT
INFRINGEMENT PROCEEDINGS. 

THE ACT OF MAY 4, 1858, C. 27, 11 STAT. 272, A GENERAL ACT INTENDED TO
DO AWAY WITH THE INSERTION OF SPECIAL PROVISIONS PRESERVING STATEWIDE
VENUE IN ACTS DIVIDING A STATE INTO TWO OR MORE JUDICIAL DISTRICTS,
FN6  AND THE ACT OF FEBRUARY 24, 1863, C. 54 SEC. 9, 12 STAT. 662. 
RESPONDENTS INSIST THAT SEC. 52 APPLIES TO PATENT INFRINGEMENT SUITS
BECAUSE IT ANTEDATES SEC. 48, EXCLUDES FROM ITS PURVIEW ONLY SUITS OF A
LOCAL NATURE, AND IS CONSISTENT WITH AND COMPLEMENTARY TO SEC. 48,
SINCE IT DEALS WITH THE PROBLEM OF VENUE IN THE GEOGRAPHICAL SENSE
RATHER THAN IN TERMS OF SPECIFIED CLASSES OF LITIGATION.  WE CANNOT
AGREE. 

EVEN ASSUMING THAT R.S. SEC. 740 COVERED PATENT LITIGATION PRIOR TO
THE ACT OF 1897, WE DO NOT THINK THAT ITS APPLICATION SURVIVED THAT
ACT, WHICH WAS INTENDED TO DEFINE THE EXACT LIMITS OF VENUE IN PATENT
INFRINGEMENT SUITS.  FN7  FURTHERMORE, THE ACT OF 1897 WAS A
RESTRICTIVE MEASURE, LIMITING A PRIOR, BROADER VENUE.  GENERAL ELECTRIC
CO. V. MARVEL CO., 287 U.S. 430, 434-435; BOWERS V. ATLANTIC, G. & P.
CO., 104 F. 887; CHEATHAM ELECTRIC SWITCHING CO. V. TRANSIT CO., 191 F.
727.  FN8 THUS THERE IS LITTLE REASON TO ASSUME THAT CONGRESS INTENDED
TO AUTHORIZE SUITS IN DISTRICTS OTHER THAN THOSE MENTIONED IN THAT
ACT. 

THE REENACTMENT OF THE ACT OF 1897 AS SEC. 48, AND OF R.S. SEC. 740
AS SEC. 52 OF THE JUDICIAL CODE, BY THE ACT OF MARCH 3, 1911, C. 231,
36 STAT. 1100-1101, IS NOT INDICATIVE OF ANY CONGRESSIONAL
UNDERSTANDING THAT THE TWO SECTIONS ARE COMPLEMENTARY.  QUITE THE
CONTRARY, FOR SEC. 52 APPEARS IN THE JUDICIAL CODE AS AN EXCEPTION TO
SEC. 51, THE GENERAL VENUE PROVISION DERIVED FROM THE ACT OF 1887, AS
AMENDED.  SEE CAMP V. GRESS, 250 U.S. 308, 315.  SECTION 51 IS, OF
COURSE, NOT APPLICABLE TO PATENT INFRINGEMENT PROCEEDINGS.  GENERAL
ELECTRIC CO. V. MARVEL CO., SUPRA.  FN9  SINCE SEC. 48 IS WHOLLY
INDEPENDENT OF SEC. 51, THERE IS AN ELEMENT OF INCONGRUITY IN
ATTEMPTING TO SUPPLEMENT SEC. 48 BY RESORT TO SEC. 52, AN EXCEPTION TO
THE PROVISIONS OF SEC. 51.  CF. CONNECTICUT FIRE INS. CO. V. LAKE
TRANSFER CORP., 74 F.2D 258.  REVERSED. 

FN1  SECTION 48 PROVIDES: 

"IN SUITS BROUGHT FOR THE INFRINGEMENT OF LETTERS PATENT THE DISTRICT
COURTS OF THE UNITED STATES SHALL HAVE JURISDICTION, IN LAW OR IN
EQUITY, IN THE DISTRICT OF WHICH THE DEFENDANT IS AN INHABITANT, OR IN
ANY DISTRICT IN WHICH THE DEFENDANT, WHETHER A PERSON, PARTNERSHIP, OR
CORPORATION, SHALL HAVE COMMITTED ACTS OF INFRINGEMENT AND HAVE A
REGULAR AND ESTABLISHED PLACE OF BUSINESS.  IF SUCH SUIT IS BROUGHT IN
A DISTRICT OF WHICH THE DEFENDANT IS NOT AN INHABITANT, BUT IN WHICH
SUCH DEFENDANT HAS A REGULAR AND ESTABLISHED PLACE OF BUSINESS, SERVICE
OF PROCESS, SUMMONS, OR SUBPOENA UPON THE DEFENDANT MAY BE MADE BY
SERVICE UPON THE AGENT OR AGENTS ENGAGED IN CONDUCTING SUCH BUSINESS IN
THE DISTRICT IN WHICH SUIT IS BROUGHT." 


"WHEN A STATE CONTAINS MORE THAN ONE DISTRICT, EVERY SUIT NOT OF A
LOCAL NATURE, IN THE DISTRICT COURT THEREOF, AGAINST A SINGLE
DEFENDANT, INHABITANT OF SUCH STATE, MUST BE BROUGHT IN THE DISTRICT
WHERE HE RESIDES; BUT IF THERE ARE TWO OR MORE DEFENDANTS, RESIDING IN
DIFFERENT DISTRICTS OF THE STATE, IT MAY BE BROUGHT IN EITHER DISTRICT,
AND A DUPLICATE WRIT MAY BE ISSUED AGAINST THE DEFENDANTS, DIRECTED TO
THE MARSHAL OF ANY OTHER DISTRICT IN WHICH ANY DEFENDANT RESIDES.  THE
CLERK ISSUING THE DUPLICATE WRIT SHALL INDORSE THEREON THAT IT IS A
TRUE COPY OF A WRIT SUED OUT OF THE COURT OF THE PROPER DISTRICT; AND
SUCH ORIGINAL AND DUPLICATE WRITS, WHEN EXECUTED AND RETURNED INTO THE
OFFICE FROM WHICH THEY ISSUE, SHALL CONSTITUTE AND BE PROCEEDED ON AS
ONE SUIT; AND UPON ANY JUDGMENT OR DECREE RENDERED THEREIN, EXECUTION
MAY BE ISSUED, DIRECTED TO THE MARSHAL OF ANY DISTRICT IN THE SAME
STATE." 

FN2  LOWE SUPPLY COMPANY DEFAULTED AND THE SUIT PROCEEDED TO JUDGMENT
AGAINST IT. 

FN3  PRIOR TO THE HOHORST CASE THE LOWER FEDERAL COURTS SEEM TO HAVE
BEEN UNANIMOUS IN ASSUMING THAT THE ACT OF 1887 AS AMENDED GOVERNED
PATENT INFRINGEMENT LITIGATION.  SEE REINSTADLER V. REEVES, 33 F. 308;
MILLER-MAGEE CO. V. CARPENTER, 34 F. 433; HALSTEAD V. MANNING, BOWMAN &
CO., 34 F. 565; GORMULLY & JEFFREY MFG. CO. V. POPE MFG. CO., 34 F.
818; PRESTON V. FIRE-EXTINGUISHER MFG. CO., 36 F. 721; ADRIANCE, PLATT
& CO. V. MCCORMICK HARVESTING MACH. CO., 55 F. 287; NATIONAL TYPEWRITER
CO. V. POPE MFG. CO., 56 F. 849; BICYCLE STEPLADDER CO. V. GORDON, 57
F. 529; CRAMER V. SINGER MFG. CO., 59 F. 74. 

AFTER THE HOHORST DECISION CONFLICT DEVELOPED.  UNION SWITCH & SIGNAL
CO. V. HALL SIGNAL CO., 65 F. 625, RELYING ON GALVESTON, H. & S.A. RY.
CO. V. GONZALES, 151 U.S. 496, INTERPRETED IN RE HOHORST AS LIMITED TO
INFRINGEMENT SUITS AGAINST ALIENS OR FOREIGN CORPORATIONS.  ACCORD,
DONNELLY V. UNITED STATES CORDAGE CO., 66 F. 613.  CONTRA, SMITH V.
SARGENT MFG. CO., 67 F. 801. 

FN4  NATIONAL BUTTON WORKS V. WADE, 72 F. 298; NOONAN V. CHESTER PARK
ATHLETIC CLUB CO., 75 F. 334; EARL V. SOUTHERN PACIFIC CO., 75 F. 609;
WESTINGHOUSE AIR-BRAKE CO. V. GREAT NORTHERN RY. CO., 88 F. 258. 
CONTRA, GORHAM MFG. CO. V. WATSON, 74 F. 418. 

FN5  SEE H. REPT. NO. 2905, 54TH CONG., 2D SESS. 

THE REMARKS OF MR. MITCHELL WHO REPORTED THE BILL FOR THE HOUSE
COMMITTEE ON PATENTS ARE SIGNIFICANT (29 CONG. REC. 1900-1901): 

"MR. SPEAKER, THE NECESSITY FOR THIS LAW GROWS OUT OF THE ACTS OF
1887 AND 1888 WHICH AMENDED THE JUDICIARY ACT.  CONFLICTING DECISIONS
HAVE EVEN ARISEN IN THE DIFFERENT DISTRICTS IN THE SAME STATES AS TO
THE CONSTRUCTION OF THESE ACTS OF 1887 AND 1888, AND THERE IS GREAT
UNCERTAINTY THROUGHOUT THE COUNTRY AS TO WHETHER OR NOT THE ACT OF 1887
AS AMENDED BY THE ACT OF 1888 APPLIED TO PATENT CASES AT ALL. 

"THE BILL IS INTENDED TO REMOVE THIS UNCERTAINTY AND TO DEFINE THE
EXACT JURISDICTION OF THE CIRCUIT COURTS IN THESE MATTERS. 

"THE COMMITTEE HAVE BEEN EXTREMELY CAREFUL IN THE INVESTIGATION OF
THE MATTER BEFORE REPORTING THE BILL. 

"AS THE BILL WAS REFERRED TO ME, I WROTE TO A GREAT MANY PATENT
LAWYERS IN DIFFERENT PARTS OF THE COUNTRY, IN ORDER TO GET THEIR VIEWS
AND OBJECTIONS, IF ANY, AND I FIND THAT THEY ARE ALL UNANIMOUSLY IN
FAVOR OF THE BILL AS IT IS NOW REPORTED, AND STATE THAT IT WOULD TEND
NOT ONLY TO DEFINE THE JURISDICTION OF THE CIRCUIT COURTS NOT NOW
DEFINED, BUT ALSO LIMIT THAT JURISDICTION AND SO CLEARLY DEFINE IT THAT
IN THE FUTURE THERE WILL BE NO QUESTION WITH REGARD TO THE APPLICATION
OF THE ACTS OF 1887 AND 1888. 

     .         .         .         .   . 

"  ...  THE TROUBLE HAS ARISEN IN THIS MATTER THAT UNDER THE ACT OF
1888 SOME OF THE COURTS WERE UNCERTAIN WHETHER OR NOT THE LAW DID OR
DID NOT APPLY TO PATENT CASES, AND THEREFORE THIS SPECIAL BILL RELATING
TO PATENTS SOLELY HAS BEEN BROUGHT UP BECAUSE OF THE INDEFINITENESS AND
UNCERTAINTY ARISING FROM DIFFERENT CONSTRUCTIONS OF THE ACT OF 1888 AS
APPLIED TO PATENT CASES." 

FN6  SEE THE REMARKS OF SENATOR PUGH WHO REPORTED THE BILL FOR THE
SENATE JUDICIARY COMMITTEE.  36 CONG. GLOBE 936, 35TH CONG., 1ST SESS. 

FN7  AS A MATTER OF FACT THERE WAS SOME UNCERTAINTY AS TO WHETHER
R.S. SEC. 740 SURVIVED THE GENERAL VENUE PROVISIONS OF THE ACTS OF 1875
AND 1887.  SEE GREELEY V. LOWE, 155 U.S. 58, 72; PETRI V. CREELMAN
LUMBER CO., 199 U.S. 487, 497; CAMP V. GRESS, 250 U.S. 308, 315.  IT
WAS HELD THAT IT DID IN EAST TENNESSEE, V. & G.R. CO. V. ATLANTA & F.R.
CO., 49 F. 608; GODDARD V. MAILLER, 80 F. 422; AND DOSCHER V. UNITED
STATES PIPE LINE CO., 185 F. 959.  BUT COMPARE NEW JERSEY STEEL & IRON
CO. V. CHORMANN, 105 F. 532, AND SEYBERT V. SHAMOKIN & MT. C. ELECTRIC
RY. CO., 110 F. 810. 

FN8  ZELL V. ERIE BRONZE CO., 273 F. 833, IS TO THE CONTRARY, BUT
APPARENTLY OVERLOOKS THE TREND OF THE LOWER FEDERAL COURTS AFTER IN RE
KEASBEY & MATTISON, 160 U.S. 221, WAS DECIDED.  SEE NOTE 4, ANTE. 

FN9  THIS IS APPARENT FROM THE LEGISLATIVE HISTORY OF THE ACT OF 1897
FROM WHICH SEC. 48 IS DERIVED.  SEE NOTE 5, ANTE. 

INFRINGEMENT.  LUMIERE V. WILDER, INC., 261 U.S. 174. 
..END :











CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568 


NO. 255.  ARGUED FEBRUARY 5, 1942.  - DECIDED MARCH 9, 1942.  - 91 N.H.
310, 18 A.2D 754, AFFIRMED. 


1.  THAT PART OF C. 378, SEC. 2, OF THE PUBLIC LAWS OF NEW HAMPSHIRE
WHICH FORBIDS UNDER PENALTY THAT ANY PERSON SHALL ADDRESS "ANY
OFFENSIVE, DERISIVE OR ANNOYING WORD TO ANY OTHER PERSON WHO IS
LAWFULLY IN ANY STREET OR OTHER PUBLIC PLACE," OR "CALL HIM BY ANY
OFFENSIVE OR DERISIVE NAME," WAS CONSTRUED BY THE SUPREME COURT OF THE
STATE, IN THIS CASE AND BEFORE THIS CASE AROSE, AS LIMITED TO THE USE
IN A PUBLIC PLACE OF WORDS DIRECTLY TENDING TO CAUSE A BREACH OF THE
PEACE BY PROVOKING THE PERSON ADDRESSED TO ACTS OF VIOLENCE.  HELD: 

(1)  THAT, SO CONSTRUED, IT IS SUFFICIENTLY DEFINITE AND SPECIFIC TO
COMPLY WITH REQUIREMENTS OF DUE PROCESS OF LAW.  P. 573. 

(2)  THAT AS APPLIED TO A PERSON WHO, ON A PUBLIC STREET, ADDRESSED
ANOTHER AS A "DAMNED FASCIST" AND A "DAMNED RACKETEER," IT DOES NOT
SUBSTANTIALLY OR UNREASONABLY IMPINGE UPON FREEDOM OF SPEECH.  P. 574. 

(3)  THE REFUSAL OF THE STATE COURT TO ADMIT EVIDENCE OFFERED BY THE
DEFENDANT TENDING TO PROVE PROVOCATION AND EVIDENCE BEARING ON THE
TRUTH OR FALSITY OF THE UTTERANCES CHARGED IS OPEN TO NO CONSTITUTIONAL
OBJECTION.  P. 574. 

2.  THE COURT NOTICES JUDICIALLY THAT THE APPELLATIONS "DAMNED
RACKETEER" AND "DAMNED FASCIST" ARE EPITHETS LIKELY TO PROVOKE THE
AVERAGE PERSON TO RETALIATION, AND THEREBY CAUSE A BREACH OF THE
PEACE.  P. 574. 

CHAPLINSKY V. NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

APPEAL FROM A JUDGMENT AFFIRMING A CONVICTION UNDER A STATE LAW
DENOUNCING THE USE OF OFFENSIVE WORDS WHEN ADDRESSED BY ONE PERSON TO
ANOTHER IN A PUBLIC PLACE. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

APPELLANT, A MEMBER OF THE SECT KNOWN AS JEHOVAH'S WITNESSES, WAS
CONVICTED IN THE MUNICIPAL COURT OF ROCHESTER, NEW HAMPSHIRE, FOR
VIOLATION OF CHAPTER 378, SEC. 2, OF THE PUBLIC LAWS OF NEW HAMPSHIRE: 

"NO PERSON SHALL ADDRESS ANY OFFENSIVE, DERISIVE OR ANNOYING WORD TO
ANY OTHER PERSON WHO IS LAWFULLY IN ANY STREET OR OTHER PUBLIC PLACE,
NOR CALL HIM BY ANY OFFENSIVE OR DERISIVE NAME, NOR MAKE ANY NOISE OR
EXCLAMATION IN HIS PRESENCE AND HEARING WITH INTENT TO DERIDE, OFFEND
OR ANNOY HIM, OR TO PREVENT HIM FROM PURSUING HIS LAWFUL BUSINESS OR
OCCUPATION." 

THE COMPLAINT CHARGED THAT APPELLANT, "WITH FORCE AND ARMS, IN A
CERTAIN PUBLIC PLACE IN SAID CITY OF ROCHESTER, TO WIT, ON THE PUBLIC
SIDEWALK ON THE EASTERLY SIDE OF WAKEFIELD STREET, NEAR UNTO THE
ENTRANCE OF THE CITY HALL, DID UNLAWFULLY REPEAT, THE WORDS FOLLOWING,
ADDRESSED TO THE COMPLAINANT, THAT IS TO SAY, 'YOU ARE A GOD DAMNED
RACKETEER' AND 'A DAMNED FASCIST AND THE WHOLE GOVERNMENT OF ROCHESTER
ARE FASCISTS OR AGENTS OF FASCISTS,' THE SAME BEING OFFENSIVE, DERISIVE
AND ANNOYING WORDS AND NAMES." 

UPON APPEAL THERE WAS A TRIAL DE NOVO OF APPELLANT BEFORE A JURY IN
THE SUPERIOR COURT.  HE WAS FOUND GUILTY AND THE JUDGMENT OF CONVICTION
WAS AFFIRMED BY THE SUPREME COURT OF THE STATE.  91 N.H. 310, 18 A.2D
754. 

BY MOTIONS AND EXCEPTIONS, APPELLANT RAISED THE QUESTIONS THAT THE
STATUTE WAS INVALID UNDER THE FOURTEENTH AMENDMENT OF THE CONSTITUTION
OF THE UNITED STATES, IN THAT IT PLACED AN UNREASONABLE RESTRAINT ON
FREEDOM OF SPEECH, FREEDOM OF THE PRESS, AND FREEDOM OF WORSHIP, AND
BECAUSE IT WAS VAGUE AND INDEFINITE.  THESE CONTENTIONS WERE OVERRULED
AND THE CASE COMES HERE ON APPEAL. 

THERE IS NO SUBSTANTIAL DISPUTE OVER THE FACTS.  CHAPLINSKY WAS
DISTRIBUTING THE LITERATURE OF HIS SECT ON THE STREETS OF ROCHESTER ON
A BUSY SATURDAY AFTERNOON.  MEMBERS OF THE LOCAL CITIZENRY COMPLAINED
TO THE CITY MARSHAL, BOWERING, THAT CHAPLINSKY WAS DENOUNCING ALL
RELIGION AS A "RACKET."  BOWERING TOLD THEM THAT CHAPLINSKY WAS
LAWFULLY ENGAGED, AND THEN WARNED CHAPLINSKY THAT THE CROWD WAS GETTING
RESTLESS.  SOME TIME LATER, A DISTURBANCE OCCURRED AND THE TRAFFIC
OFFICER ON DUTY AT THE BUSY INTERSECTION STARTED WITH CHAPLINSKY FOR
THE POLICE STATION, BUT DID NOT INFORM HIM THAT HE WAS UNDER ARREST OR
THAT HE WAS GOING TO BE ARRESTED.  ON THE WAY, THEY ENCOUNTERED MARSHAL
BOWERING, WHO HAD BEEN ADVISED THAT A RIOT WAS UNDER WAY AND WAS
THEREFORE HURRYING TO THE SCENE.  BOWERING REPEATED HIS EARLIER WARNING
TO CHAPLINSKY, WHO THEN ADDRESSED TO BOWERING THE WORDS SET FORTH IN
THE COMPLAINT. 

CHAPLINSKY'S VERSION OF THE AFFAIR WAS SLIGHTLY DIFFERENT.  HE
TESTIFIED THAT, WHEN HE MET BOWERING, HE ASKED HIM TO ARREST THE ONES
RESPONSIBLE FOR THE DISTURBANCE.  IN REPLY, BOWERING CURSED HIM AND
TOLD HIM TO COME ALONG.  APPELLANT ADMITTED THAT HE SAID THE WORDS
CHARGED IN THE COMPLAINT, WITH THE EXCEPTION OF THE NAME OF THE DEITY. 

OVER APPELLANT'S OBJECTION THE TRIAL COURT EXCLUDED, AS IMMATERIAL,
TESTIMONY RELATING TO APPELLANT'S MISSION "TO PREACH THE TRUE FACTS OF
THE BIBLE," HIS TREATMENT AT THE HANDS OF THE CROWD, AND THE ALLEGED
NEGLECT OF DUTY ON THE PART OF THE POLICE.  THIS ACTION WAS APPROVED BY
THE COURT BELOW, WHICH HELD THAT NEITHER PROVOCATION NOR THE TRUTH OF
THE UTTERANCE WOULD CONSTITUTE A DEFENSE TO THE CHARGE. 

IT IS NOW CLEAR THAT "FREEDOM OF SPEECH AND FREEDOM OF THE PRESS,
WHICH ARE PROTECTED BY THE FIRST AMENDMENT FROM INFRINGEMENT BY
CONGRESS, ARE AMONG THE FUNDAMENTAL PERSONAL RIGHTS AND LIBERTIES WHICH
ARE PROTECTED BY THE FOURTEENTH AMENDMENT FROM INVASION BY STATE
ACTION."  LOVELL V. GRIFFIN, 303 U.S. 444, 450.  FN1  FREEDOM OF
WORSHIP IS SIMILARLY SHELTERED.  CANTWELL V. CONNECTICUT, 310 U.S. 296,
303. 

APPELLANT ASSAILS THE STATUTE AS A VIOLATION OF ALL THREE FREEDOMS,
SPEECH, PRESS AND WORSHIP, BUT ONLY AN ATTACK ON THE BASIS OF FREE
SPEECH IS WARRANTED.  THE SPOKEN, NOT THE WRITTEN, WORD IS INVOLVED. 
AND WE CANNOT CONCEIVE THAT CURSING A PUBLIC OFFICER IS THE EXERCISE OF
RELIGION IN ANY SENSE OF THE TERM.  BUT EVEN IF THE ACTIVITIES OF THE
APPELLANT WHICH PRECEDED THE INCIDENT COULD BE VIEWED AS RELIGIOUS IN
CHARACTER, AND THEREFORE ENTITLED TO THE PROTECTION OF THE FOURTEENTH
AMENDMENT, THEY WOULD NOT CLOAK HIM WITH IMMUNITY FROM THE LEGAL
CONSEQUENCES FOR CONCOMITANT ACTS COMMITTED IN VIOLATION OF A VALID
CRIMINAL STATUTE.  WE TURN, THEREFORE, TO AN EXAMINATION OF THE STATUTE
ITSELF. 

ALLOWING THE BROADEST SCOPE TO THE LANGUAGE AND PURPOSE OF THE
FOURTEENTH AMENDMENT, IT IS WELL UNDERSTOOD THAT THE RIGHT OF FREE
SPEECH IS NOT ABSOLUTE AT ALL TIMES AND UNDER ALL CIRCUMSTANCES.  FN2
THERE ARE CERTAIN WELL-DEFINED AND NARROWLY LIMITED CLASSES OF SPEECH,
THE PREVENTION AND PUNISHMENT OF WHICH HAVE NEVER BEEN THOUGHT TO RAISE
ANY CONSTITUTIONAL PROBLEM.  FN3  THESE INCLUDE THE LEWD AND OBSCENE,
THE PROFANE, THE LIBELOUS, AND THE INSULTING OR "FIGHTING" WORDS -
THOSE WHICH BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE AN
IMMEDIATE BREACH OF THE PEACE.  FN4  IT HAS BEEN WELL OBSERVED THAT
SUCH UTTERANCES ARE NO ESSENTIAL PART OF ANY EXPOSITION OF IDEAS, AND
ARE OF SUCH SLIGHT SOCIAL VALUE AS A STEP TO TRUTH THAT ANY BENEFIT
THAT MAY BE DERIVED FROM THEM IS CLEARLY OUTWEIGHED BY THE SOCIAL
INTEREST IN ORDER AND MORALITY.  FN5  "RESORT TO EPITHETS OR PERSONAL
ABUSE IS NOT IN ANY PROPER SENSE COMMUNICATION OF INFORMATION OR
OPINION SAFEGUARDED BY THE CONSTITUTION, AND ITS PUNISHMENT AS A
CRIMINAL ACT WOULD RAISE NO QUESTION UNDER THAT INSTRUMENT."  CANTWELL
V. CONNECTICUT, 310 U.S. 296, 309-310. 

THE STATE STATUTE HERE CHALLENGED COMES TO US AUTHORITATIVELY
CONSTRUED BY THE HIGHEST COURT OF NEW HAMPSHIRE.  IT HAS TWO PROVISIONS
- THE FIRST RELATES TO WORDS OR NAMES ADDRESSED TO ANOTHER IN A PUBLIC
PLACE; THE SECOND REFERS TO NOISES AND EXCLAMATIONS.  THE COURT SAID:
"THE TWO PROVISIONS ARE DISTINCT.  ONE MAY STAND SEPARATELY FROM THE
OTHER.  ASSUMING, WITHOUT HOLDING, THAT THE SECOND WERE
UNCONSTITUTIONAL, THE FIRST COULD STAND IF CONSTITUTIONAL."  WE ACCEPT
THAT CONSTRUCTION OF SEVERABILITY AND LIMIT OUR CONSIDERATION TO THE
FIRST PROVISION OF THE STATUTE.  FN6 

ON THE AUTHORITY OF ITS EARLIER DECISIONS, THE STATE COURT DECLARED
THAT THE STATUTE'S PURPOSE WAS TO PRESERVE THE PUBLIC PEACE, NO WORDS
BEING "FORBIDDEN EXCEPT SUCH AS HAVE A DIRECT TENDENCY TO CAUSE ACTS OF
VIOLENCE BY THE PERSONS TO WHOM, INDIVIDUALLY, THE REMARK IS
ADDRESSED."  FN7  IT WAS FURTHER SAID:  "THE WORD 'OFFENSIVE' IS NOT TO
BE DEFINED IN TERMS OF WHAT A PARTICULAR ADDRESSEE THINKS.  ...  THE
TEST IS WHAT MEN OF COMMON INTELLIGENCE WOULD UNDERSTAND WOULD BE WORDS
LIKELY TO CAUSE AN AVERAGE ADDRESSEE TO FIGHT.  ...  THE ENGLISH
LANGUAGE HAS A NUMBER OF WORDS AND EXPRESSIONS WHICH BY GENERAL CONSENT
ARE 'FIGHTING WORDS' WHEN SAID WITHOUT A DISARMING SMILE.  ...  SUCH
WORDS, AS ORDINARY MEN KNOW, ARE LIKELY TO CAUSE A FIGHT.  SO ARE
THREATENING, PROFANE OR OBSCENE REVILINGS.  DERISIVE AND ANNOYING WORDS
CAN BE TAKEN AS COMING WITHIN THE PURVIEW OF THE STATUTE AS HERETOFORE
INTERPRETED ONLY WHEN THEY HAVE THIS CHARACTERISTIC OF PLAINLY TENDING
TO EXCITE THE ADDRESSEE TO A BREACH OF THE PEACE.  ...  THE STATUTE, AS
CONSTRUED, DOES NO MORE THAN PROHIBIT THE FACE-TO-FACE WORDS PLAINLY
LIKELY TO CAUSE A BREACH OF THE PEACE BY THE ADDRESSEE, WORDS WHOSE
SPEAKING CONSTITUTES A BREACH OF THE PEACE BY THE SPEAKER - INCLUDING
'CLASSICAL FIGHTING WORDS', WORDS IN CURRENT USE LESS 'CLASSICAL' BUT
EQUALLY LIKELY TO CAUSE VIOLENCE, AND OTHER DISORDERLY WORDS, INCLUDING
PROFANITY, OBSCENITY AND THREATS." 

WE ARE UNABLE TO SAY THAT THE LIMITED SCOPE OF THE STATUTE AS THUS
CONSTRUED CONTRAVENES THE CONSTITUTIONAL RIGHT OF FREE EXPRESSION.  IT
IS A STATUTE NARROWLY DRAWN AND LIMITED TO DEFINE AND PUNISH SPECIFIC
CONDUCT LYING WITHIN THE DOMAIN OF STATE POWER, THE USE IN A PUBLIC
PLACE OF WORDS LIKELY TO CAUSE A BREACH OF THE PEACE.  CF. CANTWELL V.
CONNECTICUT, 310 U.S. 296, 311; THORNHILL V. ALABAMA, 310 U.S. 88,
105.  THIS CONCLUSION NECESSARILY DISPOSES OF APPELLANT'S CONTENTION
THAT THE STATUTE IS SO VAGUE AND INDEFINITE AS TO RENDER A CONVICTION
THEREUNDER A VIOLATION OF DUE PROCESS.  A STATUTE PUNISHING VERBAL
ACTS, CAREFULLY DRAWN SO AS NOT UNDULY TO IMPAIR LIBERTY OF EXPRESSION,
IS NOT TOO VAGUE FOR A CRIMINAL LAW.  CF. FOX V. WASHINGTON, 236 U.S.
273, 277.  FN8 

NOR CAN WE SAY THAT THE APPLICATION OF THE STATUTE TO THE FACTS
DISCLOSED BY THE RECORD SUBSTANTIALLY OR UNREASONABLY IMPINGES UPON THE
PRIVILEGE OF FREE SPEECH.  ARGUMENT IS UNNECESSARY TO DEMONSTRATE THAT
THE APPELLATIONS "DAMNED RACKETEER" AND "DAMNED FASCIST" ARE EPITHETS
LIKELY TO PROVOKE THE AVERAGE PERSON TO RETALIATION, AND THEREBY CAUSE
A BREACH OF THE PEACE. 

THE REFUSAL OF THE STATE COURT TO ADMIT EVIDENCE OF PROVOCATION AND
EVIDENCE BEARING ON THE TRUTH OR FALSITY OF THE UTTERANCES, IS OPEN TO
NO CONSTITUTIONAL OBJECTION.  WHETHER THE FACTS SOUGHT TO BE PROVED BY
SUCH EVIDENCE CONSTITUTE A DEFENSE TO THE CHARGE, OR MAY BE SHOWN IN
MITIGATION, ARE QUESTIONS FOR THE STATE COURT TO DETERMINE.  OUR
FUNCTION IS FULFILLED BY A DETERMINATION THAT THE CHALLENGED STATUTE,
ON ITS FACE AND AS APPLIED, DOES NOT CONTRAVENE THE FOURTEENTH
AMENDMENT.  AFFIRMED. 

FN1  SEE ALSO BRIDGES V. CALIFORNIA, 314 U.S. 252; CANTWELL V.
CONNECTICUT, 310 U.S. 296, 303; THORNHILL V. ALABAMA, 310 U.S. 88, 95;
SCHNEIDER V. STATE, 308 U.S. 147, 160; DE JONGE V. OREGON, 299 U.S.
353, 364; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 243; NEAR V.
MINNESOTA, 283 U.S. 697, 707; STROMBERG V. CALIFORNIA, 283 U.S. 359,
368; WHITNEY V. CALIFORNIA, 274 U.S. 357, 362, 371, 373; GITLOW V. NEW
YORK, 268 U.S. 652, 666. 

APPELLANT HERE PITCHES HIS ARGUMENT ON THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT. 

FN2  SCHENCK V. UNITED STATES, 249 U.S. 47; WHITNEY V. CALIFORNIA,
274 U.S. 357, 373(BRANDEIS, J., CONCURRING); STROMBERG V. CALIFORNIA,
283 U.S. 359; NEAR V. MINNESOTA, 283 U.S. 697; DE JONGE V. OREGON, 299
U.S. 353; HERNDON V. LOWRY, 301 U.S. 242; CANTWELL V. CONNECTICUT, 310
U.S. 296. 

FN3  THE PROTECTION OF THE FIRST AMENDMENT, MIRRORED IN THE
FOURTEENTH, IS NOT LIMITED TO THE BLACKSTONIAN IDEA THAT FREEDOM OF THE
PRESS MEANS ONLY FREEDOM FROM RESTRAINT PRIOR TO PUBLICATION.  NEAR V.
MINNESOTA, 283 U.S. 697, 714-715. 

FN4  CHAFEE, FREE SPEECH IN THE UNITED STATES (1941), 149. 

FN5  CHAFEE, OP. CIT., 150. 

FN6  SINCE THE COMPLAINT CHARGED APPELLANT ONLY WITH VIOLATING THE
FIRST PROVISION OF THE STATUTE, THE PROBLEM OF STROMBERG V. CALIFORNIA,
283 U.S. 359, IS NOT PRESENT. 

FN7  STATE V. BROWN, 68 N.H. 200, 38 A. 731; STATE V. MCCONNELL, 70
N.H. 294, 47 A. 267. 

FN8  WE DO NOT HAVE HERE THE PROBLEM OF LANZETTA V. NEW JERSEY, 306
U.S. 451.  EVEN IF THE INTERPRETATIVE GLOSS PLACED ON THE STATUTE BY
THE COURT BELOW BE DISREGARDED, THE STATUTE HAD BEEN PREVIOUSLY
CONSTRUED AS INTENDED TO PRESERVE THE PUBLIC PEACE BY PUNISHING
CONDUCT, THE DIRECT TENDENCY OF WHICH WAS TO PROVOKE THE PERSON AGAINST
WHOM IT WAS DIRECTED TO ACTS OF VIOLENCE.  STATE V. BROWN, 68 N.H. 200,
38 A. 731(1894). 

APPELLANT NEED NOT THEREFORE HAVE BEEN A PROPHET TO UNDERSTAND WHAT
THE STATUTE CONDEMNED.  CF. HERNDON V. LOWRY, 301 U.S. 242.  SEE NASH
V. UNITED STATES, 229 U.S. 373, 377. 
..END :





CUDAHY PACKING CO. V. HOLLAND, 315 U.S. 357 


NO. 245.  ARGUED FEBRUARY 4, 1942.  - DECIDED MARCH 2, 1942.  - 119 F.2D
209, REVERSED. 


1.  THE FAIR LABOR STANDARDS ACT DOES NOT CONFER UPON THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR,
AUTHORITY TO DELEGATE THE POWER TO SIGN AND ISSUE SUBPOENAS DUCES
TECUM.  PP. 358, 367. 

2.  THE ACT GIVES TO THE ADMINISTRATOR ALL THE POWERS WITH RESPECT TO
SUBPOENAS WHICH ARE CONFERRED UPON THE FEDERAL TRADE COMMISSION, AND NO
MORE.  P. 360. 

3.  SECTION 4(C) OF THE ACT, PROVIDING THAT "THE PRINCIPAL OFFICE OF
THE ADMINISTRATOR SHALL BE IN THE DISTRICT OF COLUMBIA, BUT HE OR HIS
DULY AUTHORIZED REPRESENTATIVE MAY EXERCISE ANY OR ALL OF HIS POWER IN
ANY PLACE," MEANS ONLY THAT THE ADMINISTRATOR AND HIS REPRESENTATIVES
MAY EXERCISE EITHER WITHIN OR WITHOUT THE DISTRICT OF COLUMBIA SUCH
POWERS AS THEY RESPECTIVELY POSSESS; AND THIS CONSTRUCTION IS FULLY
SUPPORTED BY THE LEGISLATIVE HISTORY.  P. 360. 

4.  AN UNLIMITED AUTHORITY IN AN ADMINISTRATIVE OFFICER, CHARGED WITH
THE DUTY OF GATHERING DATA AND OF MAKING INVESTIGATIONS, TO DELEGATE
THE EXERCISE OF THE SUBPOENA POWER IS NOT LIGHTLY TO BE INFERRED, IN
VIEW OF THE OPPRESSIVE USE WHICH MAY BE MADE OF IT WHEN
INDISCRIMINATELY DELEGATED AND WHEN THE SUBPOENAS ARE NOT RETURNABLE
BEFORE A JUDICIAL OFFICER.  P. 363. 

5.  IT IS FAIR TO INFER THAT IN GRANTING AUTHORITY TO DELEGATE THE
POWER OF INSPECTION, AND IN OMITTING TO GRANT AUTHORITY TO DELEGATE THE
SUBPOENA POWER, THE ACT SHOWS A LEGISLATIVE INTENTION TO WITHHOLD THE
LATTER.  P. 364. 

6.  THE ENTIRE HISTORY OF THE LEGISLATION CONTROLLING THE USE OF
SUBPOENAS BY ADMINISTRATIVE OFFICERS, AND PARTICULARLY THE LEGISLATIVE
HISTORY OF THE FAIR LABOR STANDARDS ACT, INDICATES A CONGRESSIONAL
PURPOSE NOT TO AUTHORIZE BY IMPLICATION THE DELEGATION OF THE SUBPOENA
POWER.  P. 364. 

7.  THE STRUCTURE OF THE TRADE COMMISSION ACT LENDS NO SUPPORT TO THE
VIEW THAT AS INCORPORATED IN THE FAIR LABOR STANDARDS ACT IT GIVES TO
THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION AN IMPLIED POWER TO
DELEGATE THE SIGNING AND ISSUANCE OF SUBPOENAS TO PERSONS UNDESIGNATED
BY THE STATUTE, A POWER NOT GRANTED TO OR EXERCISED BY THE COMMISSION
OR ITS MEMBERS.  P. 366. 

CUDAHY PACKING CO., LTD. V. HOLLAND, ADMINISTRATOR OF THE WAGE AND
HOUR DIVISION, U.S. DEPARTMENT OF LABOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 314 U.S. 592, TO REVIEW A JUDGMENT SUSTAINING A JUDGMENT
OF THE DISTRICT COURT WHICH REQUIRED THE PRESENT PETITIONER TO PRODUCE
BOOKS, PAPERS AND RECORDS RELATING TO WAGES AND HOURS, AS DEMANDED BY A
SUBPOENA ISSUED BY A REGIONAL DIRECTOR OF THE WAGE AND HOUR DIVISION OF
THE DEPARTMENT OF LABOR, BUT WHICH POSTPONED THE QUESTION WHETHER OTHER
BOOKS AND RECORDS, RELATING TO PURCHASES AND SHIPMENTS, WHICH WERE
SPECIFIED IN THE SUBPOENA, SHOULD ALSO BE PRODUCED. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

OF THE SEVERAL QUESTIONS RAISED BY THIS RECORD ONLY ONE REQUIRES OUR
ATTENTION:  WHETHER UNDER THE FAIR LABOR STANDARDS ACT, 52 STAT. 1060,
29 U.S.C. SEC. 201, ET SEQ., THE ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION OF THE DEPARTMENT OF LABOR HAS AUTHORITY TO DELEGATE HIS
STATUTORY POWER TO SIGN AND ISSUE A SUBPOENA DUCES TECUM. 

ON APPLICATION OF RESPONDENT, PURSUANT TO SEC. 9 OF THE ACT, THE
DISTRICT COURT FOR EASTERN LOUISIANA ORDERED PETITIONER TO SHOW CAUSE
WHY IT SHOULD NOT BE COMPELLED TO OBEY A SUBPOENA DUCES TECUM.  THE
SUBPOENA, ISSUED BY A REGIONAL DIRECTOR OF THE WAGE AND HOUR DIVISION,
COMMANDED THE PRODUCTION AT NEW ORLEANS, LOUISIANA, BEFORE A SPECIFIED
OFFICER OF THE DIVISION, OF ALL BOOKS, PAPERS, AND RECORDS SHOWING FOR
A PERIOD OF EIGHTEEN MONTHS AFTER THE EFFECTIVE DATE OF THE WAGE AND
HOUR PROVISIONS OF THE ACT THE HOURS WORKED BY EMPLOYEES EACH WORKING
DAY AND EACH WORKING WEEK, ALL WAGES PAID, ALL PURCHASES MADE AND
SHIPMENTS RECEIVED, AND ALL GOODS SOLD, SHIPPED, DELIVERED,
TRANSPORTED, OR OFFERED FOR SALE AT PETITIONER'S SHREVEPORT, LOUISIANA,
PLANT. 

THE DISTRICT COURT DENIED PETITIONER'S MOTION TO DISMISS THE
PROCEEDING FOR WANT OF JURISDICTION, AND ORDERED IT TO PRODUCE THE
DEMANDED BOOKS, PAPERS, AND RECORDS RELATING TO WAGES AND HOURS, BUT
LEFT UNDECIDED, UNTIL AGAIN PRESENTED TO THE COURT IN THE COURSE OF
INVESTIGATION, THE FURTHER QUESTION WHETHER THE BOOKS AND RECORDS
RELATING TO PURCHASES AND SHIPMENTS SPECIFIED IN THE SUBPOENA SHOULD BE
PRODUCED.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED, 119
F.2D 209, SPECIFICALLY RULING THAT THE SUBPOENA WAS VALIDLY ISSUED AND
THAT THE COURT HAD JURISDICTION TO ENFORCE IT.  WE GRANTED CERTIORARI,
314 U.S. 592, ON A PETITION WHICH PRESENTED AS A GROUND FOR REVERSAL
THE WANT OF AUTHORITY IN THE REGIONAL DIRECTOR TO ISSUE THE SUBPOENA
AND, AS A REASON FOR ALLOWING THE WRIT, THE CONFLICT ON THIS POINT OF
THE DECISION BELOW WITH THAT OF THE CIRCUIT COURT OF APPEALS FOR THE
FIRST CIRCUIT IN LOWELL SUN CO. V. FLEMING, 120 F.2D 213, CERTIORARI
GRANTED, 314 U.S. 599. 

BY SEC. 11 OF THE ACT THE ADMINISTRATOR AND HIS DESIGNATED
REPRESENTATIVES ARE AUTHORIZED TO CONDUCT INVESTIGATIONS WHICH HE MAY
DEEM NECESSARY "TO DETERMINE WHETHER ANY PERSON HAS VIOLATED ANY
PROVISION OF THIS ACT, OR WHICH MAY AID IN THE ENFORCEMENT OF THE
PROVISIONS OF THIS ACT."  THE ACT DOES NOT DEFINE THE ADMINISTRATOR'S
POWER TO ISSUE SUBPOENAS OR SPECIFICALLY AUTHORIZE HIM TO DELEGATE IT
TO OTHERS.  BUT, FOR THE PURPOSES OF ANY HEARING OR INVESTIGATION, SEC.
9 OF THE ACT MAKES APPLICABLE TO THE POWERS AND DUTIES OF THE
ADMINISTRATOR, THE CHIEF OF THE CHILDREN'S BUREAU,  FN1  AND THE
INDUSTRY COMMITTEES,  FN2  THE SUBPOENA PROVISIONS OF SECS. 9 AND 10 OF
THE FEDERAL TRADE COMMISSION ACT.  15 U.S.C. SECS. 49 AND 50.  THE
ADMINISTRATOR IS THUS GIVEN ALL THE POWERS WITH RESPECT TO SUBPOENAS
WHICH ARE CONFERRED UPON THE FEDERAL TRADE COMMISSION, AND NO MORE. 
UNDER SEC. 9 OF THE TRADE COMMISSION ACT THE COMMISSION MAY REQUIRE THE
ATTENDANCE AND TESTIMONY OF WITNESSES, AND PRODUCTION OF DOCUMENTS BY
SUBPOENA; AND ANY MEMBERS OF THE COMMISSION MAY SIGN THE SUBPOENAS. 
THE COMMISSION MAY APPLY TO ANY DISTRICT COURT WITHIN WHOSE
JURISDICTION AN INVESTIGATION IS CARRIED ON FOR AN ORDER COMPELLING
COMPLIANCE WITH A SUBPOENA. 

THE ADMINISTRATOR ARGUES THAT HE IS GIVEN AUTHORITY TO DELEGATE TO
REGIONAL DIRECTORS THE SIGNING AND ISSUANCE OF SUBPOENAS BY SEC. 4(C)
OF THE PRESENT ACT, AND THAT, IN ANY CASE, THIS AUTHORITY IS TO BE
IMPLIED FROM THE STRUCTURE OF THE ACT AND THE NATURE OF THE DUTIES
WHICH ARE IMPOSED UPON HIM.  SECTION 4(C) PROVIDES:  "THE PRINCIPAL
OFFICE OF THE ADMINISTRATOR SHALL BE IN THE DISTRICT OF COLUMBIA, BUT
HE OR HIS DULY AUTHORIZED REPRESENTATIVE MAY EXERCISE ANY OR ALL OF HIS
POWERS IN ANY PLACE."  ON ITS FACE THIS SEEMS NO MORE THAN A DEFINITION
OF THE GEOGRAPHICAL OR TERRITORIAL JURISDICTION OF THE ADMINISTRATOR
AND HIS REPRESENTATIVES.  THE DESIGNATION OF THE DISTRICT OF COLUMBIA
AS THE LOCATION OF THE ADMINISTRATOR'S PRINCIPAL OFFICE IS QUALIFIED BY
THE PROVISION THAT EITHER THE ADMINISTRATOR OR HIS REPRESENTATIVE MAY
EXERCISE "HIS POWERS" IN "ANY PLACE."  ONLY IF SUCH IS ITS MEANING DOES
SEC. 4(C) COMPORT WITH THE STRUCTURE AND RELATED PROVISIONS OF THE
ACT. 

IF, AS THE ADMINISTRATOR CONTENDS, THE SECTION IS TO BE READ AS
AUTHORIZING DELEGATION OF THE SUBPOENA POWER, THAT AUTHORITY IS WITHOUT
LIMITATION.  HE MAY CONFER THE POWER ON ANY EMPLOYEE APPOINTED UNDER
SEC. 4(B), WHOM "HE DEEMS NECESSARY TO CARRY OUT HIS FUNCTIONS AND
DUTIES," OR EVEN ON THOSE WHO RENDER THE VOLUNTARY AND UNCOMPENSATED
SERVICE WHICH HE MAY ACCEPT UNDER THAT SECTION.  MOREOVER, IF SO READ,
SEC. 4(C) LIKEWISE GIVES THE ADMINISTRATOR UNRESTRICTED AUTHORITY TO
DELEGATE EVERY OTHER POWER WHICH HE POSSESSES, AND WOULD RENDER
MEANINGLESS AND UNNECESSARY THE PROVISIONS OF SEC. 11 AUTHORIZING THE
ADMINISTRATOR TO DELEGATE HIS POWER OF INVESTIGATION TO DESIGNATED
REPRESENTATIVES. 

IF SUCH IS THE MEANING OF THE ACT, HE COULD DELEGATE AT WILL HIS DUTY
TO REPORT PERIODICALLY TO CONGRESS (SEC. 4(D)), TO APPOINT INDUSTRY
COMMITTEES AND THEIR CHAIRMEN, TO FIX THEIR COMPENSATION AND PRESCRIBE
THEIR PROCEDURE (SEC. 5), TO APPROVE OR DISAPPROVE THEIR REPORTS BY
ORDERS WHOSE FINDINGS OF FACT, IF SUPPORTED BY SUBSTANTIAL EVIDENCE,
ARE CONCLUSIVE (SEC. 10), TO DEFINE CERTAIN TERMS USED IN THE ACT (SEC.
13), TO PROVIDE BY REGULATIONS OR ORDERS FOR THE EMPLOYMENT OF LEARNERS
AND HANDICAPPED WORKERS (SEC. 14), AS WELL AS OTHER DUTIES.  A
CONSTRUCTION OF THE ACT WHICH WOULD THUS PERMIT THE ADMINISTRATOR TO
DELEGATE ALL HIS DUTIES, INCLUDING THOSE INVOLVING ADMINISTRATIVE
JUDGMENT AND DISCRETION WHICH THE ACT HAS IN TERMS GIVEN ONLY TO HIM,
CAN HARDLY BE ACCEPTED UNLESS PLAINLY REQUIRED BY ITS WORDS. 

THE ADMINISTRATOR SEEKS TO MEET THIS DIFFICULTY BY CONSTRUING SEC.
4(C) AS AUTHORIZING THE DELEGATION OF SOME BUT NOT ALL OF HIS
ADMINISTRATIVE FUNCTIONS.  BUT WE CANNOT READ "ANY OR ALL" AS MEANING
"SOME."  AND IN ANY CASE IF ONLY SOME FUNCTIONS CAN BE DELEGATED, WE
ARE AFFORDED NO LEGISLATIVE GUIDE FOR DETERMINING WHICH MAY AND WHICH
MAY NOT BE DELEGATED.  WE THINK THAT THE WORDS OF THE SECTION, READ IN
THEIR STATUTORY SETTING, MAKE IT REASONABLY PLAIN THAT ITS ONLY
FUNCTION IS TO PROVIDE THAT THE ADMINISTRATOR AND HIS REPRESENTATIVES
MAY EXERCISE EITHER WITHIN OR WITHOUT THE DISTRICT OF COLUMBIA SUCH
POWERS AS EACH POSSESSES.  THIS CONSTRUCTION IS FULLY SUPPORTED BY THE
LEGISLATIVE HISTORY OF SEC. 4(C).  FN3 

THE ADMINISTRATOR ALSO URGES THAT HIS AUTHORITY TO DELEGATE THE
SUBPOENA POWER IS TO BE INFERRED FROM THE NATURE OF HIS DUTIES AND FROM
THE FACT THAT UNDER SEC. 11 HE MAY THROUGH DESIGNATED REPRESENTATIVES
GATHER DATA AND MAKE INVESTIGATIONS AUTHORIZED BY THE ACT.  HE POINTS
TO THE WIDE RANGE OF DUTIES IMPOSED UPON HIM, THE VAST EXTENT OF HIS
TERRITORIAL JURISDICTION, AND THE LARGE NUMBER OF INVESTIGATIONS
REQUIRED FOR THE ENFORCEMENT OF THE ACT.  FROM THIS HE ARGUES THAT
CONGRESS MUST HAVE INTENDED THAT HE SHOULD BE PERMITTED TO DELEGATE HIS
AUTHORITY TO SIGN AND ISSUE SUBPOENAS.  BUT THIS ARGUMENT LOSES FORCE
WHEN EXAMINED IN THE LIGHT OF RELATED PROVISIONS OF THE ACT AND OF THE
ACTUAL COURSE OF CONGRESSIONAL LEGISLATION IN THIS FIELD. 

UNLIMITED AUTHORITY OF AN ADMINISTRATIVE OFFICER TO DELEGATE THE
EXERCISE OF THE SUBPOENA POWER IS NOT LIGHTLY TO BE INFERRED.  IT IS A
POWER CAPABLE OF OPPRESSIVE USE, ESPECIALLY WHEN IT MAY BE
INDISCRIMINATELY DELEGATED AND THE SUBPOENA IS NOT RETURNABLE BEFORE A
JUDICIAL OFFICER.  UNDER THE PRESENT ACT, THE SUBPOENA MAY, AS IN THIS
CASE, BE USED TO COMPEL PRODUCTION AT A DISTANT PLACE OF PRACTICALLY
ALL OF THE BOOKS AND RECORDS OF A MANUFACTURING BUSINESS, COVERING
CONSIDERABLE PERIODS OF TIME.  TRUE, THERE CAN BE NO PENALTY INCURRED
FOR CONTEMPT BEFORE THERE IS A JUDICIAL ORDER OF ENFORCEMENT.  BUT THE
SUBPOENA IS IN FORM AN OFFICIAL COMMAND, AND EVEN THOUGH IMPROVIDENTLY
ISSUED IT HAS SOME COERCIVE TENDENCY, EITHER BECAUSE OF IGNORANCE OF
THEIR RIGHTS ON THE PART OF THOSE WHOM IT PURPORTS TO COMMAND OR THEIR
NATURAL RESPECT FOR WHAT APPEARS TO BE AN OFFICIAL COMMAND, OR BECAUSE
OF THEIR RELUCTANCE TO TEST THE SUBPOENA'S VALIDITY BY LITIGATION.  ALL
THESE ARE COGENT REASONS FOR INFERRING AN INTENTION OF CONGRESS NOT TO
GIVE UNRESTRICTED AUTHORITY TO DELEGATE THE SUBPOENA POWER WHICH IT HAS
IN TERMS GRANTED ONLY TO THE RESPONSIBLE HEAD OF THE AGENCY. 

THE SUBPOENA POWER DIFFERS MATERIALLY IN THESE RESPECTS FROM THE
POWER TO GATHER DATA AND MAKE INVESTIGATIONS WHICH IS EXPRESSLY MADE
DELEGABLE BY SEC. 11.  WITHOUT THE SUBPOENA THAT POWER IS, IN EFFECT, A
POWER OF INSPECTION AT THE EMPLOYER'S PLACE OF BUSINESS TO BE EXERCISED
ONLY ON HIS CONSENT.  IT IS MUCH LESS BURDENSOME THAN THE REQUIREMENT
OF HIS SELECTION OF GREAT NUMBERS OF BOOKS AND PAPERS AND THEIR
PRODUCTION AT OTHER PLACES.  BECAUSE OF THESE DIFFERENCES, IT SEEMS TO
US FAIRLY INFERABLE THAT THE GRANT OF AUTHORITY TO DELEGATE THE POWER
OF INSPECTION, AND THE OMISSION OF AUTHORITY TO DELEGATE THE SUBPOENA
POWER, SHOW A LEGISLATIVE INTENTION TO WITHHOLD THE LATTER.  MOREOVER,
IF A SUBPOENA POWER IN THE REGIONAL DIRECTORS WERE TO BE IMPLIED FROM
THEIR DELEGATED AUTHORITY TO INVESTIGATE, WE SHOULD HAVE TO SAY THAT
CONGRESS HAD NO OCCASION EXPRESSLY TO GRANT THE SUBPOENA POWER TO THE
ADMINISTRATOR, WHO ALSO HAS THE POWER TO INVESTIGATE, AND THAT THE
GRANT TO HIM WAS SUPERFLUOUS AND WITHOUT MEANING OR PURPOSE. 

THE ENTIRE HISTORY OF THE LEGISLATION CONTROLLING THE USE OF
SUBPOENAS BY ADMINISTRATIVE OFFICERS INDICATES A CONGRESSIONAL PURPOSE
NOT TO AUTHORIZE BY IMPLICATION THE DELEGATION OF THE SUBPOENA POWER. 
THE INTERSTATE COMMERCE ACT,  FN4  THE NATIONAL LABOR RELATIONS ACT,
FN5  AND THE FEDERAL TRADE COMMISSION ACT,  FN6  WHOSE SUBPOENA
PROVISIONS WERE ADOPTED BY THE PRESENT ACT AND BY THE PACKERS AND
STOCKYARDS ACT,  FN7  ALL FAIL TO GRANT AUTHORITY TO DELEGATE THE
ISSUANCE OF SUBPOENAS.  IT APPEARS THAT NONE OF THE AGENCIES
ADMINISTERING THESE ACTS HAS CONSTRUED THE AUTHORITY OF ITS HEAD TO
INCLUDE THE POWER TO DELEGATE THE SIGNING AND ISSUANCE OF SUBPOENAS. 
FN8 ON THE OTHER HAND, CONGRESS, IN NUMEROUS CASES, HAS SPECIFICALLY
AUTHORIZED DELEGATION OF THE SUBPOENA POWER.  FN9  IN OTHERS IT HAS
GRANTED THE POWER TO PARTICULARLY DESIGNATED SUBORDINATE OFFICERS OR
AGENTS, THUS NEGATIVING ANY IMPLIED POWER IN THE HEAD TO DELEGATE
GENERALLY TO SUBORDINATES.  FN10  THE SUGGESTION THAT THE ADMINISTRATOR
IS GIVEN AUTHORITY TO DELEGATE THE SUBPOENA POWER BECAUSE THE
APPLICABLE TRADE COMMISSION ACT AUTHORIZES INDIVIDUAL MEMBERS OF THE
COMMISSION AS WELL AS THE COMMISSION ITSELF TO SIGN SUBPOENAS OVERLOOKS
THE FACT THAT THE ADMINISTRATOR ALONE OCCUPIES A POSITION UNDER THIS
ACT CORRESPONDING TO THAT OF THE COMMISSIONERS UNDER THEIR ACT.  THE
STRUCTURE OF THE TRADE COMMISSION ACT LENDS NO SUPPORT TO THE VIEW THAT
THE ADMINISTRATOR HAS AN IMPLIED POWER TO DELEGATE THE SIGNING AND
ISSUANCE OF SUBPOENAS TO PERSONS UNDESIGNATED BY THE STATUTE, A POWER
NOT GRANTED TO OR EXERCISED BY THE COMMISSION OR ITS MEMBERS. 

ALL THIS IS PERSUASIVE OF A CONGRESSIONAL PURPOSE THAT THE SUBPOENA
POWER SHALL BE DELEGABLE ONLY WHEN AN AUTHORITY TO DELEGATE IS
EXPRESSLY GRANTED.  THAT PURPOSE HAS BEEN EMPHASIZED HERE NOT ONLY BY
THE AUTHORITY EXPRESSLY GIVEN TO DELEGATE THE POWER TO CONDUCT
INVESTIGATIONS, AND IN THE ADOPTION BY REFERENCE OF THE SUBPOENA
PROVISIONS OF THE FEDERAL TRADE COMMISSION ACT, WHICH CONTAIN NO
AUTHORITY TO DELEGATE, BUT BY THE LEGISLATIVE HISTORY OF THE PRESENT
ACT, WHICH SHOWS THAT THE AUTHORITY TO DELEGATE THE SUBPOENA POWER WAS
ELIMINATED BY THE CONFERENCE COMMITTEE FROM THE BILLS WHICH EACH HOUSE
HAD ADOPTED.  FN11  SUCH AUTHORITY EXPRESSLY GRANTED IN THE BILL WHICH
PASSED THE SENATE, WAS REJECTED BY THE CONFERENCE COMMITTEE.  IT ALSO
DISCARDED THE PROVISIONS OF THE HOUSE BILL WHICH COMMITTED THE
ADMINISTRATION OF THE ACT TO THE SECRETARY OF LABOR, WHO HAS A GENERAL
POWER OF DELEGATION UNDER REV. STAT. SEC. 161, 5 U.S.C. SEC. 22, AND
PLACED IN HIS STEAD THE ADMINISTRATOR, WHO WAS GIVEN ONLY THE SUBPOENA
POWERS OF THE FEDERAL TRADE COMMISSION INCORPORATED IN THE HOUSE BILL. 

WE CANNOT ASSUME THAT CONGRESS WAS OF THE OPINION THAT THE PRESENT
AGENCY, WHEN APPROPRIATELY ORGANIZED FOR THE PURPOSE, WOULD BE ANY THE
LESS ABLE TO FUNCTION WITHOUT THE POWER IN THE ADMINISTRATOR TO
DELEGATE THE SIGNING AND ISSUANCE OF SUBPOENAS THAN THE FEDERAL TRADE
COMMISSION, THE INTERSTATE COMMERCE COMMISSION, AND OTHER AGENCIES
WHICH HAVE NOT BEEN GIVEN AND DO NOT ASSERT THE POWER.  NOR CAN WE
ASSUME, AS THE GOVERNMENT ARGUES, THAT CONGRESS IS WHOLLY WITHOUT
DESIGN IN WITHHOLDING THE POWER IN THIS CASE AND GRANTING IT IN OTHERS,
OR EVEN IF IT HAD BEEN, THAT IT IS ANY PART OF THE JUDICIAL FUNCTION TO
RESTORE TO THE ACT WHAT CONGRESS HAS TAKEN OUT OF IT.  EVEN THOUGH
CONGRESS HAS UNDERESTIMATED THE BURDEN WHICH IT HAS PLACED UPON THE
ADMINISTRATOR, WHICH IS BY NO MEANS CLEAR, WE THINK THAT THE
LEGISLATIVE RECORD ESTABLISHES THAT CONGRESS HAS WITHHELD FROM HIM
AUTHORITY TO DELEGATE THE EXERCISE OF THE SUBPOENA POWER, AND THAT THIS
PRECLUDES OUR RESTORING IT BY CONSTRUCTION.  REVERSED. 

FN1  THE CHIEF OF THE CHILDREN'S BUREAU ADMINISTERS THE CHILD LABOR
PROVISIONS OF THE ACT. 

FN2  THE FUNCTION OF THE INDUSTRY COMMITTEES AND THEIR RELATION TO
THE ADMINISTRATOR ARE DISCUSSED IN OPP COTTON MILLS V. ADMINISTRATOR,
312 U.S. 126. 

FN3  S. 2475, PASSED BY THE SENATE ON JULY 31, 1937(81 CONG. REC.
7957), AND SENT TO THE CONFERENCE COMMITTEE, PROVIDED FOR A LABOR
STANDARDS BOARD, AND CONTAINED SEC. 3(E), WHICH READ: "THE PRINCIPAL
OFFICE OF THE BOARD SHALL BE IN THE DISTRICT OF COLUMBIA, BUT IT MAY
MEET OR EXERCISE ANY OR ALL OF ITS POWERS AT ANY OTHER PLACE."  SECTION
12(B) OF THIS BILL ALSO SPECIFICALLY AUTHORIZED THE BOARD TO DELEGATE
ITS SUBPOENA POWER.  THE HOUSE COMMITTEE ON LABOR, TO WHICH THE SENATE
BILL WAS REFERRED, AMENDED IT TO PROVIDE FOR AN ADMINISTRATOR INSTEAD
OF A BOARD (SEE 82 CONG. REC. 1391), BUT IT INCLUDED A SEC. 3(D)
CORRESPONDING TO SEC. 3(E) OF THE SENATE BILL, SAVE FOR THE
SUBSTITUTION OF THE ADMINISTRATOR FOR THE BOARD.  SECTION 11(B) OF THE
BILL SPONSORED BY THE HOUSE COMMITTEE ALSO AUTHORIZED ANY EMPLOYEE
DESIGNATED BY THE ADMINISTRATOR TO SUBPOENA WITNESSES.  THIS BILL,
HOWEVER, WAS RECOMMITTED TO THE COMMITTEE BY THE HOUSE ON DECEMBER 17,
1937(82 CONG. REC. 1835), AND THE COMMITTEE REPORTED OUT A NEW BILL ON
APRIL 21, 1938(83 CONG. REC. 5680), WHICH PLACED THE ADMINISTRATION IN
CHARGE OF THE SECRETARY OF LABOR RATHER THAN AN ADMINISTRATOR,
CONTAINED NO SECTION COMPARABLE TO SEC. 3(E) OF THE SENATE BILL OR SEC.
3(D) OF THE RECOMMITTED HOUSE BILL, AND IN SEC. 7 APPLIED SECS. 9 AND
10 OF THE FEDERAL TRADE COMMISSION ACT TO THE POWERS AND DUTIES OF THE
SECRETARY.  THE BILL WITH THESE CHANGES PASSED THE HOUSE ON MAY 24,
1938(83 CONG. REC. 7449) AND WENT TO THE CONFERENCE COMMITTEE. 

THE CONFERENCE PUT THE ADMINISTRATOR RATHER THAN THE SECRETARY IN
CHARGE OF ADMINISTERING THE ACT, AND INCLUDED THE PRESENT SEC. 4(C). 
THE CONFERENCE ALSO RETAINED THE HOUSE BILL'S ADOPTION BY REFERENCE OF
SECS. 9 AND 10 OF THE FEDERAL TRADE COMMISSION ACT, BUT EXTENDED THEIR
OPERATION TO INVESTIGATIONS AS WELL AS HEARINGS, AND MADE THEM
APPLICABLE TO THE POWERS AND DUTIES OF THE ADMINISTRATOR, THE CHIEF OF
THE CHILDREN'S BUREAU, AND THE INDUSTRY COMMITTEES.  83 CONG. REC. 9247
8. 

THE INCLUSION OF SEC. 4(C), CLOSELY RESEMBLING SEC. 3(E) OF THE
SENATE BILL AND SEC. 3(D) OF THE RECOMMITTED HOUSE BILL, BOTH OF WHICH
GAVE SEPARATE SPECIFIC AUTHORITY TO DELEGATE THE SUBPOENA POWER,
INDICATES THAT THE PURPOSE OF THE CONFERENCE, AND OF CONGRESS IN
ADOPTING THE ACT, WAS NOT TO GRANT A GENERAL SUBSTANTIVE POWER OF
DELEGATION, INCLUDING THAT OVER SUBPOENAS, BUT TO DEFINE THE PLACES
WHERE POWERS OTHERWISE GRANTED SHOULD BE EXERCISED.  THE ADDITION IN
SEC. 4(C) OF THE PHRASE "OR HIS DESIGNATED REPRESENTATIVE," THE
EQUIVALENT OF WHICH DID NOT APPEAR IN EITHER THE HOUSE OR SENATE BILLS,
MUST BE TAKEN MERELY AS RECOGNIZING THAT THE ADMINISTRATOR OR HIS
SUBORDINATES COULD EXERCISE ELSEWHERE THAN IN THE DISTRICT OF COLUMBIA
THE POWERS WHICH EACH HAD UNDER OTHER PROVISIONS OF THE ACT. 

FN4  25 STAT. 859, 49 U.S.C. SEC. 12. 

FN5  49 STAT. 456, 29 U.S.C. SEC. 161(1). 

FN6  38 STAT. 722, 15 U.S.C. SEC. 49. 

FN7  42 STAT. 168, 7 U.S.C. SEC. 222. 

FN8  SEE MONOGRAPH OF THE ATTORNEY GENERAL'S COMMITTEE ON
ADMINISTRATIVE PROCEDURE, PART 11, INTERSTATE COMMERCE COMMISSION, SEN.
DOC. NO. 10, 77TH CONG., 1ST SESS., P. 26.  ID., PART 5, NATIONAL LABOR
RELATIONS BOARD, PP. 18-19; ID., PART 6, FEDERAL TRADE COMMISSION, SEN.
DOC. NO. 186, 76TH CONG., 3D SESS., P. 18; ALSO FINAL REPORT OF THE
ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE (1941),
APPENDIX K, PP. 414, 419.  APPARENTLY THE ACTUAL ISSUANCE OF SUBPOENAS,
THOUGH NOT THEIR SIGNING, IS DELEGATED TO SUBORDINATES IN SOME OF THESE
AGENCIES.  WE ARE NOT CONCERNED HERE WITH THE VALIDITY OF SUCH A
PRACTICE, SINCE BOTH THE SIGNING AND ISSUANCE OF SUBPOENAS IS DELEGATED
BY THE ADMINISTRATOR. 

FN9  VETERANS ADMINISTRATION ACT, 49 STAT. 2033, 38 U.S.C. SEC. 131;
RAILROAD UNEMPLOYMENT INSURANCE ACT, 52 STAT. 1107, AS AMENDED, 45
U.S.C. SEC. 362(A)(M); WALSH-HEALEY (PUBLIC CONTRACTS) ACT, 49 STAT.
2038, 41 U.S.C. SEC. 39; MERCHANT MARINE ACT, 52 STAT. 954, 46 U.S.C.
SEC. 1124(A); FEDERAL POWER ACT, 49 STAT. 857, 16 U.S.C. SEC. 825F (B);
SECURITIES ACT OF 1933, 48 STAT 85, 15 U.S.C. SEC. 77S (B); SECURITIES
EXCHANGE ACT OF 1934, 48 STAT. 900, 15 U.S.C. SEC. 78U (B); PUBLIC
UTILITY HOLDING COMPANY ACT, 49 STAT. 831, 15 U.S.C. SEC. 79R (C). 

FN10  COMMUNICATIONS ACT, 48 STAT. 1096, 47 U.S.C. SEC. 409; BUREAU
OF MARINE INSPECTION AND NAVIGATION ACT, 49 STAT. 1382, 46 U.S.C. SEC.
239(E); CIVIL AERONAUTICS ACT OF 1938, 52 STAT. 1021, 49 U.S.C. SEC.
644; MOTOR CARRIER ACT, 49 STAT. 550, 49 U.S.C. SEC. 305(D);
LONGSHOREMEN'S AND HARBOR WORKERS' COMP. ACT, 44 STAT. 1438, 33 U.S.C.
SEC. 927. 

THE GRANT OF THE SUBPOENA POWER BY THE FAIR LABOR STANDARDS ACT TO
THE CHIEF OF THE CHILDREN'S BUREAU AND TO THE INDUSTRY COMMITTEES IS
NOT OF THIS CLASS, HOWEVER, SINCE THEY PERFORM FUNCTIONS WHICH THE
ADMINISTRATOR DOES NOT CONTROL AND COULD NOT EXERCISE HIMSELF.  IN
THESE RESPECTS THEY OCCUPY AN INDEPENDENT STATUS UNDER THE ACT. 

FN11  SEE NOTE 3, SUPRA. 

MR. JUSTICE DOUGLAS, DISSENTING: 

WE HAVE HERE THE NARROW BUT IMPORTANT QUESTION AS TO THE POWER OF THE
ADMINISTRATOR TO DELEGATE HIS POWER TO ISSUE A SUBPOENA.  THAT PROBLEM
DOES NOT INVOLVE QUESTIONS AS TO THE SCOPE OF THE SUBPOENA ISSUED OR
THE FACT THAT IT REQUIRED DOCUMENTS IN SHREVEPORT TO BE PRODUCED AT NEW
ORLEANS.  STATEMENTS IN THE OPINION OF THE COURT AS TO THE "OPPRESSIVE
USE" OF THE SUBPOENA INTRODUCE ISSUES WHOLLY IRRELEVANT TO THE SINGLE
QUESTION BEFORE US.  THOSE ISSUES WOULD NOT BE CHANGED ONE IOTA HAD THE
ADMINISTRATOR HIMSELF SIGNED THIS SUBPOENA.  AND IF THE POLICY
UNDERLYING THE OPINION IS A DESIRE TO SEE A MORE RESTRICTIVE AND
DISCRIMINATING USE OF THE SUBPOENA POWER, THE REQUIREMENT THAT THE
ADMINISTRATOR ALONE EXERCISE THE POWER SEEMS IDLE.  FOR HIS DUTIES
UNDER THIS ACT ARE MANIFOLD AND FAR FLUNG.  THE ACT EXTENDS TO
THOUSANDS UPON THOUSANDS OF PERSONS AND BUSINESSES.  IT IS ESTIMATED
THAT THE ACT COVERS 15,500,000 PERSONS EMPLOYED BY MORE THAN 360,000
EMPLOYERS IN 48 STATES, THE DISTRICT OF COLUMBIA, ALASKA, HAWAII,
PUERTO RICO, AND THE VIRGIN ISLANDS.  THE ADMINISTRATOR HAS 13 REGIONAL
DIRECTORS AND ONE TERRITORIAL REPRESENTATIVE.  HE HAS ABOUT 2200
EMPLOYEES.  FOR THE FISCAL YEAR ENDED JUNE 30, 1941, THERE WERE 41,399
COMPLAINTS RECEIVED, 48,449 PLANT INSPECTIONS MADE, 1,749 CASES
LITIGATED, 6,000 SUBPOENAS ISSUED. 

THE PROBLEM OF ENFORCEMENT IS INTRICATE AND EXACTING.  IF THE
ADMINISTRATOR MUST ISSUE SUBPOENAS, IT SEEMS HARDLY LIKELY THAT HE CAN
DO ANYTHING BUT SIGN THEM IN BLANK.  IF HE TRIED TO DO ANYTHING BUT
FORMULATE THE GENERAL POLICY TO GOVERN THE EXERCISE OF THE SUBPOENA
POWER, HE COULD PERFORM LITTLE MORE THAN MINISTERIAL ACTS.  CERTAINLY
HE CANNOT BE EXPECTED TO RELIEVE HIS REGIONAL OFFICES OF ALL QUESTIONS
AS TO WHERE HEARINGS SHALL BE HELD, WHAT DOCUMENTS ARE NECESSARY FOR A
HEARING, WHAT ASSERTED VIOLATIONS SHOULD BE INVESTIGATED, WHICH
EMPLOYER WILL MAKE FULL AND FREE DISCLOSURE, WHICH WILL ACT ONLY UNDER
THE COMPULSION OF A SUBPOENA, AND SIMILAR MINUTIAE OF DAILY
ADMINISTRATION.  THE ADMINISTRATOR IN WASHINGTON CAN HARDLY EXERCISE AN
INDEPENDENT JUDGMENT AS TO WHAT THE RANGE OR COURSE OF A PARTICULAR
INVESTIGATION SHOULD BE IN REMOTE ALASKA OR PUERTO RICO.  AT LEAST, HE
CANNOT DO SO UNLESS THE PROCESSES OF LAW ENFORCEMENT ARE TO COME TO A
STANDSTILL.  YET THOSE MATTERS CONTROL THE NATURE, SCOPE AND CONTENT OF
SUBPOENAS ISSUED.  SUCH FUNCTIONS MUST OF NECESSITY REST LARGELY WITH
THE INVESTIGATING AND ENFORCEMENT REPRESENTATIVES OF THIS KIND OF AN
ADMINISTRATIVE AGENCY. 

IT WOULD SEEM THAT HIS FUNCTIONS IN THIS REGARD MUST OF NECESSITY
LARGELY LIE IN THE FORMULATION OF A GENERAL POLICY WHICH IS TO GOVERN
THE EXERCISE OF THE SUBPOENA POWER.  HE HAS FORMULATED THAT POLICY. 
THE INSTRUCTIONS TO HIS SUBORDINATES DIRECT A DISCRIMINATING AND
SPARING USE OF THE SUBPOENA POWER,  FN1  A RESTRICTION OF THE SCOPE
FN2  OF SUBPOENAS DUCES TECUM, AND A REGARD FOR THE CONVENIENCE OF
THOSE WHOSE RECORDS ARE SOUGHT.  FN3  DELEGATION IS A MATTER OF
DEGREE.  AN AUTHORITY NEED NOT BE DELEGATED COMPLETELY OR NOT AT ALL. 
IT IS SUFFICIENT THAT THE ADMINISTRATIVE OFFICER SUPERVISE AND DIRECT
THE EXECUTION OF HIS DUTIES.  SO FAR AS THE SUBPOENA POWER IS
CONCERNED, IT WOULD SEEM THAT THE ADMINISTRATOR HAS SATISFIED ALL
STATUTORY DEMANDS IN THIS SITUATION BY HIS SELECTION OF THE LIMITED
GROUP WHICH CAN ISSUE SUBPOENAS, BY FORMULATING THE POLICY TO GUIDE
THEM, AND BY RATIFYING A SUBPOENA ISSUED BY HIS SUBORDINATE. 

WE NEED NOT, HOWEVER, REST ON THAT ALONE.  THE SUBPOENA POWER IS THE
CONCOMITANT OF THE POWER TO INVESTIGATE.  CONGRESS HAS SPECIFICALLY
PROVIDED THAT THE POWER TO MAKE AND CONDUCT INVESTIGATIONS MAY BE
DELEGATED.  SEC. 11(A) PROVIDES IN PART: 

"THE ADMINISTRATOR OR HIS DESIGNATED REPRESENTATIVES MAY INVESTIGATE
AND GATHER DATA REGARDING THE WAGES, HOURS, AND OTHER CONDITIONS AND
PRACTICES OF EMPLOYMENT IN ANY INDUSTRY SUBJECT TO THIS ACT, AND MAY
ENTER AND INSPECT SUCH PLACES AND SUCH RECORDS (AND MAKE SUCH
TRANSCRIPTIONS THEREOF), QUESTION SUCH EMPLOYEES, AND INVESTIGATE SUCH
FACTS, CONDITIONS, PRACTICES, OR MATTERS AS HE MAY DEEM NECESSARY OR
APPROPRIATE TO DETERMINE WHETHER ANY PERSON HAS VIOLATED ANY PROVISION
OF THIS ACT, OR WHICH MAY AID IN THE ENFORCEMENT OF THE PROVISIONS OF
THIS ACT." 

BUT NOW WE ARE TOLD THAT THAT POWER WHEN DELEGATED IS ONLY A POWER TO
BE EXERCISED WITH THE EMPLOYER'S CONSENT; THAT IF RESISTANCE IS
ENCOUNTERED, THE ONLY ONE WHO CAN SIGN THE SUBPOENA TO OBTAIN THAT DATA
IS THE ADMINISTRATOR.  THE POWER TO DELEGATE THE AUTHORITY TO MAKE
INVESTIGATIONS IS CERTAINLY THE GREATER OF THE TWO POWERS.  IN FACT,
THE DECISION TO MAKE THE INVESTIGATION IS THE SIGNIFICANT AND
CONTROLLING ONE.  ONCE THAT IS MADE, THE DECISION TO ISSUE A SUBPOENA
UNDER THIS ACT MUST REST WITH THE REGIONAL OFFICES IF IT IS TO BE AN
INFORMED ONE.  WITHOUT THE SUBPOENA POWER THE POWER TO INVESTIGATE WILL
OFTEN BE AN EMPTY ONE. 

HENCE, IN VIEW OF THE NATURE OF THE ADMINISTRATOR'S FUNCTIONS AND THE
FACT THAT THE POWER TO MAKE INVESTIGATIONS CAN BE DELEGATED, THE LESSER
BUT COMPANION POWER TO DELEGATE THE ISSUE OF SUBPOENAS SHOULD BE
IMPLIED AS AN INCIDENT OF THE OFFICE. 

A SUBPOENA OF COURSE EXERTS A COERCIVE INFLUENCE.  SO DOES AN
INVESTIGATION.  SO DOES ALL LAW ENFORCEMENT.  AND ANY POWER, INCLUDING
THE JUDICIAL POWER, MAY BE ABUSED.  BUT AS I HAVE SAID, WE HAVE HERE NO
QUESTION OF ABUSE OF POWER.  WE CANNOT ASSUME THAT THE ADMINISTRATOR
WOULD HAUL A BUSINESS INTO COURT WHERE THE REPRESENTATIVE OF THE
ADMINISTRATOR ABUSED THE SUBPOENA POWER.  AT LEAST, WE SHOULD ASSUME
THAT WHERE THE ADMINISTRATOR SEEKS ENFORCEMENT OF THE SUBPOENA AND
STANDS BEHIND HIS SUBORDINATE WHO HAS ISSUED THE SUBPOENA, THE SUBPOENA
IS AS MUCH THE ADMINISTRATOR'S AS IF HE HAD SIGNED IT.  CF. NORRIS V.
UNITED STATES, 257 U.S. 77, 82. 

THE REASONS FOR HOLDING THAT AUTHORITY TO DELEGATE THIS POWER IS AN
INCIDENT OF THE OFFICE ARE CERTAINLY NO LESS COGENT THAN THOSE
UNDERLYING THE CASES WHICH HOLD THAT AN ADMINISTRATIVE OFFICER MAY
DELEGATE THE FUNCTION OF HOLDING HEARINGS WITHOUT EXPRESS STATUTORY
AUTHORITY.  AS STATED BY CHIEF JUSTICE HUGHES IN MORGAN V. UNITED
STATES, 298 U.S. 468, 481, "ASSISTANTS MAY PROSECUTE INQUIRIES. 
EVIDENCE MAY BE TAKEN BY AN EXAMINER."  SUCH A DELEGATION HAS BEEN
APPROVED UNDER THE FAIR LABOR STANDARDS ACT.  SOUTHERN GARMENT MFRS. 
ASSN.  V. FLEMING, 122 F.2D 622.  CAN IT BE THAT THE POWER TO HOLD
HEARINGS AND TAKE EVIDENCE IS SO UNIMPORTANT AS COMPARED WITH THE POWER
TO SIGN SUBPOENAS THAT THE POWER TO DELEGATE THE ONE BUT NOT THE OTHER
CAN BE IMPLIED?  CAN IT BE THAT THE REQUIREMENTS OF "PRACTICABLE
ADMINISTRATIVE PROCEDURE" (MORGAN V. UNITED STATES, SUPRA, P. 481) ARE
RELEVANT AND CONTROLLING IN THE ONE INSTANCE BUT NOT IN THE OTHER? 
BOTH THE POWER TO CONDUCT HEARINGS AND THE POWER TO ISSUE SUBPOENAS ARE
INTERMEDIATE STEPS IN ADMINISTRATIVE PROCEDURE.  THE FINDINGS OF THE
EXAMINER ARE ADVISORY ONLY; THIS KIND OF SUBPOENA IS A COMMAND WITHOUT
LEGAL SANCTION UNLESS SUPPORTED BY A COURT DECREE.  BUT THE FUNCTION OF
THE EXAMINER IS NOT SIMPLY MINISTERIAL.  THE ROLE WHICH HE FILLS IS
SIGNIFICANT.  THE VERY ESSENCE OF A FAIR HEARING MAY DEPEND ON HIS
CONDUCT.  IF THAT FUNCTION MAY BE DELEGATED WITHOUT EXPRESS STATUTORY
AUTHORITY, IT SHOULD FOLLOW A FORTIORI THAT THE LESSER SUBPOENA POWER
MAY ALSO BE DELEGATED BY REASON OF THE REQUIREMENTS OF "PRACTICABLE
ADMINISTRATIVE PROCEDURE." 

THE LEGISLATIVE HISTORY OF THIS ACT DOES NOT STAND IN THE WAY.  THERE
IS NO INDICATION WHATSOEVER THAT THE CHOICE OF THE HOUSE BILL AS
AGAINST THE SENATE BILL WAS IN ANY WAY INFLUENCED BY THE PRESENCE IN
THE LATTER OF AN EXPRESS POWER OF THE PROPOSED BOARD TO DELEGATE ITS
SUBPOENA POWER.  THE CONTROVERSY CENTERED ON THE QUESTION AS TO WHERE
ADMINISTRATION OF THE ACT SHOULD BE LODGED.  SEE H. REP. NO. 1452, 75TH
CONG., 1ST SESS.; H. REP. NO. 2182, 75TH CONG., 3D SESS.; S. REP. NO.
884, 75TH CONG., 1ST SESS.  AS A MATTER OF FACT, IF WE ARE TO SPECULATE
AS TO THE INTENT OF CONGRESS ON THIS POINT, WE MUST ASSUME THAT ALL
DELEGATION OF THE SUBPOENA POWER WAS NOT PRECLUDED.  THE PROVISIONS OF
SECS. 9 AND 10 OF THE FEDERAL TRADE COMMISSION ACT WERE "MADE
APPLICABLE TO THE JURISDICTION, POWERS, AND DUTIES OF THE
ADMINISTRATOR."  SEC. 9.  THE FEDERAL TRADE COMMISSION ACT LODGES THE
SUBPOENA POWER IN THE COMMISSION.  SEC. 9.  BUT IT ALSO PROVIDES THAT
ANY MEMBER OF THE COMMISSION MAY SIGN SUBPOENAS.  SEC. 9.  IF THE
COMMISSION HAS A LIMITED POWER OF DELEGATION, IT IS HARD TO SEE WHY THE
ADMINISTRATOR HAS NONE.  LOGICAL DIFFICULTIES PREVENT LITERAL
INCORPORATION OF THE WHOLE OF SEC. 9 INTO THE FAIR LABOR STANDARDS
ACT.  BUT IT CERTAINLY IS IMPOSSIBLE TO DEDUCE THAT A MORE STRINGENT
RULE GOVERNS THE ADMINISTRATOR THAN THE COMMISSION. 

NOR CAN IT BE INFERRED THAT, BECAUSE CONGRESS HAS EXPRESSLY GRANTED
DELEGATION OF THE SUBPOENA POWER UNDER SOME STATUTES BUT NOT UNDER
OTHERS, THE POWER MAY NOT BE IMPLIED.  THE OMISSION OF THAT POWER IN A
PARTICULAR STATUTE MAY BE AN HISTORICAL ACCIDENT OR A MATTER OF
DESIGN.  WHETHER OR NOT THE POWER CAN FAIRLY BE IMPLIED AS AN INCIDENT
OF A PARTICULAR OFFICE MUST DEPEND ON THE NATURE OF THAT OFFICE, THE
OTHER STATUTORY PROVISIONS WHICH GOVERN IT, AND THE LEGISLATIVE HISTORY
OF ITS CREATION.  THE FARTHEST WE NEED GO HERE IS TO SAY THAT WHERE THE
LEGISLATIVE HISTORY IS INCONCLUSIVE THE POWER TO DELEGATE IS NOT
NECESSARILY PRECLUDED. 

A REQUIREMENT THAT THE ADMINISTRATOR HIMSELF EXERCISE THE SUBPOENA
POWER AT THIS STAGE OF THE ENFORCEMENT OF THE LAW MAY WELL RETARD THE
SOCIAL AND ECONOMIC PROGRAM WHICH THE ACT INAUGURATED.  WE SHOULD BE
ALERT TO PREVENT SHEER TECHNICALITIES FROM INTERPOSING DELAY IN A LAW
ENFORCEMENT PROGRAM.  IF THE SUBPOENA POWER IS ABUSED, CONGRESS AND THE
COURTS ARE OPEN TO REMEDY IT. MEANWHILE, THE SUBPOENA POWER SHOULD BE
TREATED SYMPATHETICALLY AND REGARDED AS A NECESSARY LEGAL SANCTION TO
OBTAIN COMPLIANCE WITH THE LAW BY THOSE WHO, HAVING LOST THE BATTLE IN
THE LEGISLATURE, SEEK A DELAYING ACTION IN THE COURTS. 

FN1  THE ADMINISTRATOR'S CONFIDENTIAL MANUAL PROVIDES: 

"THE USE OF SUBPOENAS SHOULD BE RESTRICTED ENTIRELY TO CASES WHERE
DIFFICULTIES HAVE BEEN MET WITH IN THE COURSE OF INSPECTION.  IF THE
EVIDENCE OR DOCUMENTS SOUGHT HAVE BEEN REFUSED OR IF THE WITNESSES FROM
WHOM INFORMATION IS REQUESTED REFUSE TO BE FRANK OR REQUIRE PROTECTION
FROM COERCION BY THEIR EMPLOYER, THE USE OF SUBPOENAS WILL BE HELPFUL
AND PROPER.  INSPECTORS MUST, HOWEVER, FIRST MAKE AN INSPECTION OF THE
PLANT AND MAKE A REAL ATTEMPT TO SECURE THE NECESSARY INFORMATION IN
THE USUAL WAY PRIOR TO THE ISSUANCE OF SUBPOENAS.  THE SUBPOENA POWER
SHOULD BE USED SPARINGLY AND ONLY WHEN ALL OTHER MEANS HAVE FAILED." 

FN2  "THE INSPECTOR MUST LIMIT THE DEMAND IN THE SUBPOENA TO THOSE
RECORDS AND THOSE PERIODS OF TIME WHICH ARE INDISPENSABLE FOR HIS
INSPECTION."  ID. 

FN3  "THE PERSON SUBPOENAED MUST BE GIVEN A REASONABLE TIME TO
PRODUCE THE RECORDS OR TO APPEAR.  THE PLACE AT WHICH HE IS REQUESTED
TO APPEAR SHOULD BE ACCURATELY DESCRIBED AND BE REASONABLY NEARBY.  THE
TIME AT WHICH HE IS TO APPEAR SHOULD BE A REASONABLE HOUR AND ONE FIXED
SO THAT ANY POSSIBLE INTERFERENCE WITH THE INDIVIDUAL'S BUSINESS WILL
BE REDUCED TO A MINIMUM."  ID. 

I AM AUTHORIZED TO STATE THAT MR. JUSTICE BLACK, MR. JUSTICE BYRNES,
AND MR. JUSTICE JACKSON JOIN IN THIS DISSENT. 
..END :


















I.C.C. V. RAILWAY LABOR ASSN., 315 U.S. 373 


NO. 223.  ARGUED FEBRUARY 3, 1942.  - DECIDED MARCH 2, 1942.  - 38
F.SUPP.  818, 824, AFFIRMED. 


UNDER SEC. 1(18)-(20) OF THE INTERSTATE COMMERCE ACT, THE INTERSTATE
COMMERCE COMMISSION, IN AUTHORIZING THE ABANDONMENT OF A RAILWAY LINE,
HAS AUTHORITY TO ATTACH TERMS AND CONDITIONS FOR THE BENEFIT OF
EMPLOYEES WHO WILL BE DISPLACED BY THE ABANDONMENT.  P. 376. 

INTERSTATE COMMERCE COMMISSION ET AL. V. RAILWAY LABOR EXECUTIVES
ASSN. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES SETTING
ASIDE IN PART A REPORT AND ORDER OF THE INTERSTATE COMMERCE COMMISSION,
242 I.C.C. 9. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, PACIFIC ELECTRIC RAILWAY COMPANY, OWNS AND OPERATES
ELECTRIC RAILROADS AND MOTOR BUS AND TRUCK LINES IN CALIFORNIA.  IT IS
A WHOLLY OWNED SUBSIDIARY OF THE SOUTHERN PACIFIC RAILROAD COMPANY,
WITH WHOSE LINES IT MAKES CONNECTIONS AT NUMEROUS POINTS.  IT APPLIED
TO THE INTERSTATE COMMERCE COMMISSION FOR PERMISSION TO CARRY OUT "A
GENERAL PROGRAM OF REARRANGEMENT OF ...  PASSENGER SERVICE, INVOLVING
ABANDONMENT OF CERTAIN RAIL LINES AND SUBSTITUTION OF MOTOR COACH
TRANSPORTATION AS A MEANS OF INCREASING OPERATING REVENUES, REDUCING
EXPENSES, AND RENDERING A MORE ADEQUATE SERVICE TO THE PUBLIC."  THE
RAILWAY LABOR EXECUTIVES' ASSOCIATION AND THE BROTHERHOOD OF RAILROAD
TRAINMEN APPEARED BEFORE THE COMMISSION AS REPRESENTATIVES OF PACIFIC'S
EMPLOYEES.  THEY CONTENDED THAT IF THE COMMISSION WERE TO GRANT
PACIFIC'S APPLICATION, IT SHOULD DO SO ONLY UPON CONDITIONS DESIGNED TO
PROTECT EMPLOYEES, AND PROPOSED THAT PACIFIC BE REQUIRED TO PROVIDE
CERTAIN SPECIFIED BENEFITS FOR EMPLOYEES WHO WOULD BE DISPLACED OR
OTHERWISE PREJUDICED BY THE ABANDONMENT.  IN SUPPORT OF THIS
CONTENTION, THEY ARGUED THAT MANY OF PACIFIC'S EMPLOYEES HAD DEVOTED A
LARGE PART OF THEIR LIVES TO THE SERVICE OF THE RAILROAD AND HAD
ACQUIRED VALUABLE RIGHTS OF SENIORITY IN CONNECTION WITH THEIR
EMPLOYMENT; THAT THE PROPOSED CHANGE WOULD CAUSE MANY OF THEM TO LOSE
THEIR JOBS, AS A RESULT OF WHICH THEY WOULD SUFFER GREAT HARDSHIPS AND
SOME WOULD BECOME PUBLIC CHARGES; AND THAT, ALTHOUGH THE ABANDONMENT
AND REARRANGEMENT WOULD GIVE PACIFIC A NET ANNUAL SAVINGS OF
APPROXIMATELY $378,000, ABOUT $302,000 OF THE SAVING WOULD BE DUE TO A
NET WAGE LOSS SUFFERED BY EMPLOYEES.  AFTER A HEARING, DIVISION 4 OF
THE COMMISSION ISSUED AN ORDER PERMITTING ABANDONMENT UPON THE GROUND
THAT CONTINUED OPERATION OF THE LINE BY PACIFIC "WOULD IMPOSE AN UNDUE
BURDEN UPON THE APPLICANT AND UPON INTERSTATE COMMERCE," BUT HELD THAT
THE COMMISSION WAS WITHOUT STATUTORY AUTHORITY TO IMPOSE ANY CONDITIONS
WHATEVER FOR THE PROTECTION OF EMPLOYEES IN THESE PROCEEDINGS.  242
I.C.C. 9.  THE FULL COMMISSION DENIED THE BROTHERHOOD'S REQUEST FOR
REHEARING.  UPON APPLICATION OF THE BROTHERHOODS, THE FEDERAL DISTRICT
COURT OF THE DISTRICT OF COLUMBIA, COMPOSED OF THREE JUDGES, IN
ACCORDANCE WITH 28 U.S.C. SEC. 47, HELD THAT THE COMMISSION DID HAVE
AUTHORITY TO IMPOSE CONDITIONS FOR THE PROTECTION OF DISPLACED
EMPLOYEES.  ACCORDINGLY, IT SET ASIDE "THAT PART OF THE COMMISSION'S
REPORT WHICH DENIES CONSIDERATION OF THE EMPLOYEES' PETITION FOR LACK
OF POWER  ...  WITH DIRECTIONS TO THE COMMISSION TO CONSIDER THE
PETITION AND TAKE SUCH ACTION THEREON AS IN THE DISCRETION OF THE
COMMISSION IS PROPER."  38 F.SUPP.  818, 824.  WHETHER IT IS WITHIN THE
COMMISSION'S POWER IN ABANDONMENT PROCEEDINGS TO IMPOSE CONDITIONS FOR
THE PROTECTION OF EMPLOYEES IS THE SINGLE QUESTION PRESENTED BY THIS
APPEAL. 

CARRIER BY RAILROAD SUBJECT TO THIS PART SHALL ABANDON ALL OR ANY
PORTION OF A LINE OF RAILROAD, OR THE OPERATION THEREOF, UNLESS AND
UNTIL THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE COMMISSION A
CERTIFICATE THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY
PERMIT OF SUCH ABANDONMENT."  AND SEC. 1(20) EMPOWERS THE COMMISSION TO
"ATTACH TO THE ISSUANCE OF THE CERTIFICATE SUCH TERMS AND CONDITIONS AS
IN ITS JUDGMENT THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE."  49
U.S.C. SEC. 1(18)-(20). 

WITH RESPECT TO CONSOLIDATIONS, ANOTHER SECTION OF THE ACT, 5(4), IS
CONTROLLING.  IN UNITED STATES V. LOWDEN, 308 U.S. 225, THIS COURT HELD
THAT THE COMMISSION HAS AUTHORITY UNDER SEC. 5(4) TO IMPOSE CONDITIONS
SIMILAR TO THOSE SOUGHT HERE IN ORDER TO PROTECT EMPLOYEES ADVERSELY
AFFECTED BY A CONSOLIDATION.  AT THE TIME OF THE LOWDEN CASE, SEC. 5(4)
PROVIDED:  "IF THE COMMISSION FINDS THAT, SUBJECT TO SUCH TERMS AND
CONDITIONS AND SUCH MODIFICATIONS AS IT SHALL FIND TO BE JUST AND
REASONABLE, THE PROPOSED CONSOLIDATION  ...  WILL PROMOTE THE PUBLIC
INTEREST, IT MAY ENTER AN ORDER APPROVING AND AUTHORIZING SUCH
CONSOLIDATION  ...  UPON THE TERMS AND CONDITIONS AND WITH THE
MODIFICATIONS SO FOUND TO BE JUST AND REASONABLE."  49 U.S.C. SEC.
5(4). 

THE COMMISSION ARGUES THAT THE CONDITIONS IT IS AUTHORIZED TO IMPOSE
UNDER THE CONSOLIDATION SECTION - "JUST AND REASONABLE" CONDITIONS,
WHICH "WILL PROMOTE THE PUBLIC INTEREST" - ARE OF MUCH BROADER SCOPE
THAN THE CONDITIONS IT IS AUTHORIZED TO IMPOSE UNDER THE ABANDONMENT
REQUIRE."  ALTHOUGH ADMITTING THAT PROVISIONS FOR THE PROTECTION OF
DISPLACED EMPLOYEES MAY BE A CONDITION THAT "WILL PROMOTE THE PUBLIC
INTEREST," THE COMMISSION CONCLUDES THAT SUCH PROVISIONS CANNOT BE
REQUIRED BY "THE PUBLIC CONVENIENCE AND NECESSITY."  WE NEED NOT DECIDE
IN WHAT RESPECTS, IF ANY, THE AUTHORIZATION TO IMPOSE CONDITIONS IN
CONSOLIDATIONS IS BROADER THAN THE AUTHORIZATION TO IMPOSE CONDITIONS
IN ABANDONMENTS.  FOR EVEN ASSUMING THAT THE LANGUAGE OF THE
ABANDONMENT SECTION IS NARROWER, WE CANNOT AGREE THAT IT EXCLUDES ALL
POWER TO IMPOSE CONDITIONS OF THE KIND SOUGHT HERE. 

THE PHRASE "PUBLIC CONVENIENCE AND NECESSITY" NO LESS THAN THE PHRASE
"PUBLIC INTEREST" MUST BE GIVEN A SCOPE CONSISTENT WITH THE BROAD
PURPOSE OF THE TRANSPORTATION ACT OF 1920:  TO PROVIDE THE PUBLIC WITH
AN EFFICIENT AND NATIONALLY INTEGRATED RAILROAD SYSTEM.  NEW ENGLAND
DIVISIONS CASE, 261 U.S. 184, 189-191.  CLEAR RECOGNITION THAT "PUBLIC
CONVENIENCE AND NECESSITY" INCLUDES THE CONSIDERATION OF EFFECTS ON THE
NATIONAL TRANSPORTATION SYSTEM OF A PROPOSED ABANDONMENT APPEARS IN THE
DECISION OF THIS COURT IN COLORADO V. UNITED STATES, 271 U.S. 153. 
THERE, MR. JUSTICE BRANDEIS, ALTHOUGH STATING THAT "PUBLIC CONVENIENCE
AND NECESSITY" WAS THE SOLE CRITERION FOR DETERMINING WHETHER OR NOT AN
ABANDONMENT SHOULD BE ALLOWED, NEVERTHELESS CONSIDERED THE EFFECT OF
THE PROPOSED ABANDONMENT IN A MUCH BROADER SPHERE THAN THE IMMEDIATE
LOCALITY AND POPULATION SERVED BY THE TRACKAGE TO BE ABANDONED.  SEE
ALSO TRANSIT COMMISSION V. UNITED STATES, 284 U.S. 360.  AND IF
NATIONAL INTERESTS ARE TO BE CONSIDERED IN CONNECTION WITH AN
ABANDONMENT, THERE IS NOTHING IN THE ACT TO INDICATE THAT THE NATIONAL
INTEREST IN PURELY FINANCIAL STABILITY IS TO BE DETERMINATIVE WHILE THE
NATIONAL INTEREST IN THE STABILITY OF THE LABOR SUPPLY AVAILABLE TO THE
RAILROADS IS TO BE DISREGARDED.  ON THE CONTRARY, THE LOWDEN CASE
RECOGNIZES THAT THE UNSTABILIZING EFFECTS OF DISPLACING LABOR WITHOUT
PROTECTION MIGHT BE PREJUDICIAL TO THE ORDERLY AND EFFICIENT OPERATION
OF THE NATIONAL RAILROAD SYSTEM.  SUCH POSSIBLE UNSTABILIZING EFFECTS
ON THE NATIONAL RAILROAD SYSTEM ARE NO SMALLER IN THE CASE OF AN
ABANDONMENT LIKE THE ONE BEFORE US THAN IN A CONSOLIDATION LIKE THAT
INVOLVED IN THE LOWDEN CASE.  HENCE, IT IS ONLY BY EXCLUDING
CONSIDERATIONS OF NATIONAL POLICY WITH RESPECT TO THE TRANSPORTATION
SYSTEM FROM THE SCOPE OF "PUBLIC CONVENIENCE AND NECESSITY," AN
EXCLUSION INCONSISTENT WITH THE ACT AS THIS COURT HAS INTERPRETED IT,
THAT THE DISTINCTION MADE BY THE COMMISSION CAN BE MAINTAINED. 

IT WAS NOT UNTIL 1935, FIFTEEN YEARS AFTER THE PASSAGE OF SEC. 1(20),
THAT THE COMMISSION FIRST DECIDED THAT IT WAS WITHOUT POWER TO IMPOSE
CONDITIONS FOR THE PROTECTION OF WORKERS IN AN ABANDONMENT.  CHICAGO
G.W.R. CO. TRACKAGE, 207 I.C.C. 315, 322.  AT THAT TIME, THE COMMISSION
TOOK THE POSITION THAT REQUIRING DISPLACEMENT ALLOWANCES AS A CONDITION
WOULD BE THE EQUIVALENT OF GRANTING A PRIVATE BENEFIT TO A PARTICULAR
GROUP OF WORKERS, AND THEREFORE BEYOND THE SCOPE OF AUTHORITY GRANTED
BY CONGRESS.  THE COMMISSION HAS TAKEN THE SAME POSITION HERE.  IT MUST
NOT BE FORGOTTEN, HOWEVER, THAT THE IMMEDIATE RESULT OF PERMITTING THE
ABANDONMENT ITSELF IS A PRIVATE BENEFIT FOR THE RAILROAD IN THE FORM OF
SAVINGS REALIZED BY DISCONTINUING UNECONOMIC SERVICES.  THE
JUSTIFICATION LIES IN THE BENEFIT TO THE TRANSPORTATION SYSTEM WHICH
THE COMMISSION CONCLUDED THE ABANDONMENT WOULD PRODUCE.  THERE IS
NOTHING IN THE ACT TO PREVENT THE COMMISSION FROM TAKING ACTION IN
FURTHERANCE OF THE "PUBLIC CONVENIENCE AND NECESSITY" MERELY BECAUSE
THE TOTAL IMPACT OF THAT ACTION WILL INCLUDE BENEFITS TO PRIVATE
PERSONS, EITHER CARRIERS OR EMPLOYEES.  THE LOWDEN CASE SPECIFICALLY
RECOGNIZED THAT THE IMPOSITION OF CONDITIONS SIMILAR TO THOSE SOUGHT
HERE MIGHT STRENGTHEN THE NATIONAL SYSTEM THROUGH THEIR EFFECT ON THE
MORALE AND STABILITY OF RAILWAY WORKERS GENERALLY.  EXACTLY THE SAME
CONSIDERATIONS OF NATIONAL IMPORTANCE ARE APPLICABLE AND OPERATIVE
HERE. 

WE MUST ALSO REJECT THE FURTHER ARGUMENT THAT CONGRESS HAS RATIFIED
THE COMMISSION'S CONSTRUCTION OF SEC. 1(18)-(20).  IT IS TRUE THAT
CONGRESS MADE NO CHANGES IN SEC. 1(18)-(20) OF THE INTERSTATE COMMERCE
ACT IN PASSING THE TRANSPORTATION ACT OF 1940, AND THAT THE ANNUAL
REPORTS OF THE COMMISSION TO CONGRESS IN 1935 AND 1936 HAD SPECIFICALLY
ASKED "FOR FURTHER STATUTORY PROVISIONS TO PROTECT EMPLOYEES FROM UNDUE
FINANCIAL LOSS AS A CONSEQUENCE OF AUTHORIZED RAILWAY ABANDONMENTS OR
UNIFICATIONS."  BUT THE LOWDEN CASE, CLEARLY ESTABLISHING THAT THE
COMMISSION'S 1935 AND 1936 DOUBTS ABOUT ITS POWERS WITH RESPECT TO
UNIFICATIONS WERE ERRONEOUS, WAS DECIDED ON DECEMBER 4, 1939.  CONGRESS
COULD WITH GOOD REASON HAVE CONCLUDED THAT THE PRINCIPLE OF THE LOWDEN
CASE WAS EQUALLY APPLICABLE TO ABANDONMENTS.  IN ANY EVENT, THE
CONTRARY CONCLUSION - THAT ABANDONMENTS WERE NOW TO BE DISTINGUISHED,
ALTHOUGH THE COMMISSION HAD MADE NO SUCH DISTINCTION IN PRESENTING THE
PROBLEM TO CONGRESS, AND THAT CONGRESS APPROVED SUCH A DISTINCTION - IS
AT BEST THE PRODUCT OF A SET OF INFERENCES NONE OF WHICH IS FREE FROM
DOUBT.  WE THEREFORE CANNOT IMPUTE TO CONGRESS'S FAILURE TO AMEND SEC.
1(18)-(20) THE SIGNIFICANCE WHICH THE PETITIONERS CONTEND IT SHOULD
HAVE. 

NOR IS THE PETITIONERS' CONTENTION STRENGTHENED BECAUSE CONGRESS DID
MODIFY SEC. 5(4) IN THE TRANSPORTATION ACT OF 1940.  THE MODIFICATIONS,
SO FAR AS RELEVANT HERE, MERELY MADE MANDATORY WITH RESPECT TO
UNIFICATIONS THE PROTECTIONS FOR WORKERS THAT HAD PREVIOUSLY BEEN
DISCRETIONARY.  FN1  SEE UNITED STATES V. LOWDEN, SUPRA, 239.  TO
REGARD THEM AS A RESTRICTION ON THE DISCRETIONARY POWER OF THE
COMMISSION WITH RESPECT TO ABANDONMENTS IS NOT MERELY ILLOGICAL.  IT
REQUIRES US TO IMPUTE TO CONGRESS A POLICY OF MANDATORY PROTECTION FOR
LABOR IN UNIFICATIONS AND NO PROTECTION AT ALL IN ABANDONMENTS.  IT IS
REASONABLE TO SUPPOSE THAT IF CONGRESS HAD INTENDED TO MAKE SUCH A
DISTINCTION, IT WOULD HAVE SAID SO MORE EXPLICITLY. 

THE PETITIONERS HAVE MADE FURTHER ARGUMENTS BASED ON THE STATUTORY
HISTORY OF THE TRANSPORTATION ACT OF 1940, RELYING UPON INCIDENTAL AND
SPORADIC REFERENCES IN COMMITTEE HEARINGS AND REPORTS TO THE PROTECTION
OF LABOR IN CONNECTION WITH ABANDONMENTS.  WE HAVE REVIEWED THOSE
REFERENCES, AND HAVE FOUND THAT THEY RAISE INFERENCES TOO AMBIGUOUS TO
SUPPORT THE CONCLUSION THAT CONGRESS HAS RATIFIED THE COMMISSION'S
CONSTRUCTION OF SEC. 1(18)-(20). 

IT IS ALSO URGED THAT WE SHOULD NOT DISTURB THE COMMISSION'S
CONSTRUCTION OF THE ABANDONMENT PROVISIONS FOR THE REASON THAT
ADMINISTRATIVE INTERPRETATIONS BY THE AGENCY CHARGED WITH THE
ENFORCEMENT OF A STATUTE ARE ENTITLED TO GREAT WEIGHT.  BUT AS WE HAVE
POINTED OUT, THE CONSTRUCTION PLACED UPON SEC. 1(18)-(20) BY THE
COMMISSION IS NOT ONLY HOSTILE TO THE MAJOR OBJECTIVE OF THE ACT AND
INCONSISTENT WITH DECISIONS OF THIS COURT, BUT IRRECONCILABLE WITH ITS
OWN INTERPRETATIONS OF SEC. 5(4).  UNDER SUCH CIRCUMSTANCES, WE BELIEVE
THE COURT BELOW WAS AMPLY JUSTIFIED IN REFUSING TO ACCEPT THE
COMMISSION'S CONSTRUCTION.  CF. MITCHELL V. UNITED STATES, 313 U.S. 80;
CITY BANK CO. V. HELVERING, 313 U.S. 121. 

WE THEREFORE CONCLUDE THAT THE COMMISSION HAS AUTHORITY TO ATTACH
TERMS AND CONDITIONS FOR THE BENEFIT OF EMPLOYEES DISPLACED BY RAILROAD
ABANDONMENTS.  WHETHER SUCH TERMS AND CONDITIONS SHOULD BE ATTACHED IN
THIS CASE, AND, IF SO, THEIR NATURE AND EXTENT, ARE QUESTIONS FOR THE
COMMISSION TO DECIDE IN THE LIGHT OF THE EVIDENCE.  THE JUDGMENT OF THE
COURT BELOW SHOULD ACCORDINGLY BE AFFIRMED. 

FN1  "AS A CONDITION OF ITS APPROVAL, UNDER THIS PARAGRAPH (2), OF
ANY TRANSACTION INVOLVING A CARRIER OR CARRIERS BY RAILROAD SUBJECT TO
THE PROVISIONS OF THIS PART, THE COMMISSION SHALL REQUIRE A FAIR AND
EQUITABLE ARRANGEMENT TO PROTECT THE INTERESTS OF THE RAILROAD
EMPLOYEES AFFECTED.  IN ITS ORDER OF APPROVAL THE COMMISSION SHALL
INCLUDE TERMS AND CONDITIONS PROVIDING THAT DURING THE PERIOD OF FOUR
YEARS FROM THE EFFECTIVE DATE OF SUCH ORDER SUCH TRANSACTION WILL NOT
RESULT IN EMPLOYEES OF THE CARRIER OR CARRIERS BY RAILROAD AFFECTED BY
SUCH ORDER BEING IN A WORSE POSITION WITH RESPECT TO THEIR EMPLOYMENT,
EXCEPT THAT THE PROTECTION AFFORDED TO ANY EMPLOYEE PURSUANT TO THIS
SENTENCE SHALL NOT BE REQUIRED TO CONTINUE FOR A LONGER PERIOD,
FOLLOWING THE EFFECTIVE DATE OF SUCH ORDER, THAN THE PERIOD DURING
WHICH SUCH EMPLOYEE WAS IN THE EMPLOY OF SUCH CARRIER OR CARRIERS PRIOR
TO THE EFFECTIVE DATE OF SUCH ORDER.  NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS ACT, AN AGREEMENT PERTAINING TO THE PROTECTION OF
THE INTERESTS OF SAID EMPLOYEES MAY HEREAFTER BE ENTERED INTO BY ANY
CARRIER OR CARRIERS BY RAILROAD AND THE DULY AUTHORIZED REPRESENTATIVE
OR REPRESENTATIVES OF ITS OR THEIR EMPLOYEES."  54 STAT. 906-907. 
..END :















PURCELL V. UNITED STATES, 315 U.S. 381 


NO. 803.  ARGUED FEBRUARY 11, 1942.  - DECIDED MARCH 2, 1942.  - 41
F.SUPP.  309, AFFIRMED. 


1.  WHERE MOST OF A SHORT RAILWAY WAS INCLUDED IN THE LIMITS OF A
GOVERNMENT FLOOD CONTROL RESERVOIR, AND CONTINUED OPERATION OF THE
REMAINING PORTIONS WOULD SERVE NO PRACTICAL PURPOSE, AND THE COST OF
RELOCATING AND REBUILDING THE LINE, AND THE INCREASED EXPENSES OF
OPERATING IT IF RELOCATED, WOULD NOT BE JUSTIFIED BY PUBLIC CONVENIENCE
AND NECESSITY, THE INTERSTATE COMMERCE COMMISSION WAS AUTHORIZED BY
SEC. 1(18) OF THE INTERSTATE COMMERCE ACT TO PERMIT ABANDONMENT OF THE
LINE IN ITS ENTIRETY.  P. 383. 

2.  IN SUCH A CASE IT WAS PROPER FOR THE COMMISSION TO CONSIDER THE
COST OF RELOCATION EVEN THOUGH IT WOULD BE PAID NOT BY THE RAILWAY
COMPANY BUT BY THE GOVERNMENT; FOR, IN DETERMINING SUCH APPLICATIONS,
THE INTERESTS OF THOSE SERVED BY THE EXISTING LINE ARE BALANCED AGAINST
THE INTERESTS OF THE CARRIER AND THE TRANSPORTATION SYSTEM, AND
OPERATION OF THAT SYSTEM WITHOUT WASTE WAS ONE OF THE OBJECTS OF THE
TRANSPORTATION ACT OF 1920.  P. 384. 

PURCELL ET AL., CONSTITUTING THE PUBLIC SERVICE COMMISSION OF
MARYLAND, ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MARYLAND. 

APPEAL FROM A DECREE DISMISSING A BILL TO ANNUL AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION PERMITTING ABANDONMENT OF A RAILWAY
LINE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A FEDERAL DISTRICT COURT, COMPOSED OF THREE JUDGES IN ACCORDANCE WITH
28 U.S.C. SEC. 47, DISMISSED THE APPELLANTS' BILL, WHICH PRAYED FOR THE
ANNULMENT OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.  41
F.SUPP.  309.  THE ORDER PERMITTED THE CONFLUENCE AND OAKLAND RAILROAD
COMPANY, AS OWNER, AND THE BALTIMORE AND OHIO RAILROAD COMPANY, AS
LESSEE, TO ABANDON A RAILROAD LINE APPROXIMATELY 20 MILES LONG AND TO
DISCONTINUE SERVICE ENTIRELY IN THE AREA NOW SERVED:  A SEMI
MOUNTAINOUS SECTION ALONG THE YOUGHIOGHENY RIVER BETWEEN CONFLUENCE AND
OAKLAND JUNCTION, PENNSYLVANIA, AND KENDALL, MARYLAND.  THE APPELLANTS,
WHO ALSO APPEARED AS PROTESTANTS BEFORE THE INTERSTATE COMMERCE
COMMISSION, ARE THE PUBLIC SERVICE COMMISSION OF MARYLAND AND THE
MCCULLOUGH COAL CORPORATION, A COAL MINING COMPANY WHICH ALLEGES IT
WILL BE FORCED OUT OF BUSINESS IF RAILROAD SERVICE IS DISCONTINUED. 

THE APPLICATION TO THE COMMISSION FOR ABANDONMENT WAS NOT MADE
BECAUSE THE LINE HAD BEEN OPERATING AT A LOSS.  ON THE CONTRARY, THE
COMMISSION CONCLUDED THAT THERE WAS NO EVIDENCE THAT THE LINE HAD
THERETOFORE BEEN A BURDEN ON THE BALTIMORE AND OHIO SYSTEM, OF WHICH IT
WAS A PART; OR THAT A PREDICTABLE DECLINE IN THE VOLUME OF TRAFFIC
WOULD MAKE IT ONE IN THE FUTURE, IF IT WERE ALLOWED TO CONTINUE IN
EXISTENCE UNDISTURBED.  244 I.C.C. 451, 458; 247 I.C.C. 399, 401.  BUT
CONTINUED UNDISTURBED EXISTENCE WOULD BE AN IMPOSSIBILITY IN VIEW OF A
FLOOD CONTROL PROJECT ALREADY BEGUN BY THE WAR DEPARTMENT UNDER
AUTHORITY OF AN ACT OF CONGRESS.  52 STAT. 1215-1216.  THIS PROJECT
ENTAILS THE CONSTRUCTION OF A DAM WHICH WILL CREATE A RESERVOIR
COVERING AN AREA IN WHICH TWELVE MILES OF THE LINE ARE NOW LOCATED.  IT
IS CONCEDED THAT UNLESS A NEW CONNECTING SECTION IS BUILT, THE SECTIONS
OF THE LINE NOT TO BE INUNDATED - A DETACHED SIX MILE SEGMENT ABOVE THE
DAM, AND A ONE MILE SEGMENT CONNECTING WITH THE MAIN LINE OF THE
BALTIMORE AND OHIO BELOW IT - WOULD SERVE NO PRACTICAL PURPOSE
JUSTIFYING CONTINUED OPERATION. 

THE APPELLANTS DO NOT CHALLENGE THE STATUTORY AUTHORITY OF THE WAR
DEPARTMENT TO SUBMERGE THE LINE AS IT PROPOSES TO DO.  NOR DO THEY
SUGGEST THAT THE COMMISSION COULD OR SHOULD TAKE ANY ACTION TO DETER
COMPLETION OF THE PROJECT.  NEVERTHELESS, THEY CONTEND THAT SINCE "THE
SOLE REASON FOR THE ABANDONMENT WAS THE FLOOD CONTROL PROJECT, THE
APPLICATION SHOULD HAVE BEEN DENIED FORTHWITH BY THE COMMISSION BECAUSE
OF LACK OF JURISDICTION TO GRANT AN ABANDONMENT ON SUCH GROUND."  BUT
UNDER SEC. 1(18) OF THE INTERSTATE COMMERCE ACT THE STANDARD PRESCRIBED
FOR THE COMMISSION IN CASES OF THIS KIND IS WHETHER "THE PRESENT OR
FUTURE PUBLIC CONVENIENCE AND NECESSITY PERMIT OF SUCH ABANDONMENT." 
49 U.S.C. SEC. 1(18).  IT IS DIFFICULT TO IMAGINE WHAT CONSIDERATION OF
PRESENT OR FUTURE PUBLIC CONVENIENCE COULD REASONABLY IMPEL THE
COMMISSION TO DECLINE TO AUTHORIZE ABANDONMENT OF A LINE ADMITTEDLY
DOOMED TO BE RENDERED INOPERABLE REGARDLESS OF WHAT ACTION THE
COMMISSION MIGHT TAKE.  AND THE APPELLANTS SUGGEST NONE.  WE MUST
DISMISS THE APPELLANTS' CONTENTION ON THIS POINT AS WITHOUT MERIT. 
FN1 

THE APPELLANTS MAKE THE FURTHER ARGUMENT THAT, EVEN IF THE COMMISSION
DID NOT ERR IN PERMITTING ABANDONMENT OF THE LINE, ITS ORDER CANNOT
STAND BECAUSE OF THE FAILURE TO IMPOSE A CONDITION THAT SUBSTITUTE
SERVICE BE PROVIDED BY RELOCATING THE LINE.  FN2  AFTER HEARING
TESTIMONY ON THE PROBABLE COST OF RELOCATION AND THE PROBABLE COST OF
MAINTAINING A RELOCATED LINE, THE COMMISSION CONCLUDED THAT
"CONSIDERING THE EXPENDITURE NECESSARILY INCIDENT TO THAT RELOCATION
AND THE INCREASED COSTS OF OPERATING THE LINE THAT WILL BE CAUSED
THEREBY,  ...  WE ARE NOT JUSTIFIED BY THE PUBLIC CONVENIENCE AND
NECESSITY IN TAKING ACTION HEREIN THAT WILL REQUIRE THE RELOCATION OF
THE LINE."  THE APPELLANTS DO NOT CONTEST THE COMMISSION'S FINDING,
AMPLY SUPPORTED BY EVIDENCE, THAT THE RELOCATED LINE WOULD REQUIRE
INCREASED OPERATING EXPENSES.  IF THE COMMISSION HAD BASED ITS
CONCLUSION ON THIS FINDING ALONE, THERE WOULD SEEM TO BE NO ADEQUATE
GROUND FOR SETTING ITS ORDER ASIDE IN JUDICIAL PROCEEDINGS.  THE
COMMISSION DID CONSIDER RELOCATION COSTS, HOWEVER, AND THE APPELLANTS
CONTEND THAT THIS WAS AN IMPROPER CONSIDERATION WHICH INVALIDATES ITS
ORDER. 

IN MAKING THIS ATTACK ON THE ORDER, THE APPELLANTS CONTEND THAT UNDER
THE STATUTE AUTHORIZING THE WAR DEPARTMENT TO CONSTRUCT FLOOD CONTROL
PROJECTS, THE COST OF RELOCATION WOULD HAVE TO BE BORNE BY THE
GOVERNMENT RATHER THAN THE RAILROAD.  COST THUS BORNE WOULD NOT AFFECT
THE FINANCIAL CONDITION OF THE RAILROAD ITSELF, THE APPELLANTS URGE,
AND THEREFORE THERE COULD BE NO SUCH WEAKENING OF THE RAILROAD'S
CAPITAL STRUCTURE AS WOULD ADVERSELY AFFECT THE TRANSPORTATION SYSTEM. 
HENCE, THE ARGUMENT CONTINUES, IN THAT BALANCING OF THE INTERESTS OF
THOSE NOW SERVED BY THE PRESENT LINE ON THE ONE HAND, AND THE INTERESTS
OF THE CARRIER AND THE TRANSPORTATION SYSTEM ON THE OTHER, WHICH A
PROPER DISPOSITION OF ABANDONMENT APPLICATIONS REQUIRES, COLORADO V.
UNITED STATES, 271 U.S. 153, THE FORMER INTERESTS MUST PREVAIL. 

AS THE COURT BELOW POINTED OUT, HOWEVER, "AN UNECONOMIC OUTLAY OF
FUNDS WOULD NOT BE IN THE INTERESTS OF TRANSPORTATION EVEN THOUGH THE
MONEY BE DERIVED FROM THE NATIONAL GOVERNMENT."  THIS COURT HAS
RECOGNIZED THAT OPERATION OF THE NATIONAL RAILWAY SYSTEM WITHOUT WASTE
WAS ONE OF THE PURPOSES THE TRANSPORTATION ACT OF 1920 WAS INTENDED TO
FURTHER.  TEXAS V. UNITED STATES, 292 U.S. 522, 530; TEXAS & PACIFIC
RY. CO. V. GULF, C. & S.F. RY. CO., 270 U.S. 266, 277.  AND A STATED
PURPOSE OF THE TRANSPORTATION ACT OF 1940, IN THE LIGHT OF WHICH
CONGRESS PRESCRIBED THAT THE "ACT SHALL BE ADMINISTERED AND ENFORCED"
IS "TO PROMOTE  ...  ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS."  54 STAT. 899.  WHEN MATERIALS AND LABOR ARE DEVOTED
TO THE BUILDING OF A LINE IN AN AMOUNT THAT CANNOT BE JUSTIFIED IN
TERMS OF THE REASONABLY PREDICTABLE REVENUES, THERE IS AMPLE GROUND TO
SUPPORT A CONCLUSION THAT THE EXPENDITURES ARE WASTEFUL WHOEVER FOOTS
THE BILL.  THE FOSTERING CARE OF THE RAILROAD SYSTEM INTRUSTED TO THE
COMMISSION IS NOT SO CIRCUMSCRIBED AS TO LEAVE IT WITHOUT AUTHORITY TO
PASS ON THE ECONOMIC ADVISABILITY OF RELOCATION IN A SITUATION WHERE
SOMEONE OTHER THAN THE CARRIER PROVIDES THE MONEY.  THE WEIGHT TO BE
GIVEN TO COST OF A RELOCATED LINE AS AGAINST THE ADVERSE EFFECTS UPON
THOSE SERVED BY THE ABANDONED LINE IS A MATTER WHICH THE EXPERIENCE OF
THE COMMISSION QUALIFIES IT TO DECIDE.  AND, UNDER THE STATUTE, IT IS
NOT A MATTER FOR JUDICIAL REDECISION.  NOR IS THERE ANY INDICATION IN
THE FLOOD CONTROL ACT OF 1938 THAT CONGRESS DESIRES TO TAKE AWAY FROM
THE COMMISSION ANY OF THE POWERS TO MAKE DECISIONS OF THIS KIND WHICH
THE INTERSTATE COMMERCE ACT HAD PREVIOUSLY GRANTED IT. 

THE JUDGMENT OF THE COURT BELOW IS AFFIRMED. 

FN1  WHERE PROJECTED INUNDATION OF A LINE MADE DISCONTINUATION OF
OPERATIONS OVER IT COMPULSORY, THE COMMISSION HAS CONSISTENTLY GIVEN
ITS AUTHORIZATION FOR ABANDONMENT.  SEE LOS ANGELES & S.L.R. CO.
ABANDONMENT, 212 I.C.C. 597, 598:  "IT IS APPARENT FROM THE RECORD THAT
UNDER THE CIRCUMSTANCES STATED ABOVE THE PROPOSED ABANDONMENT IS
COMPULSORY, AND WILL NOT RESULT IN PUBLIC INCONVENIENCE."  IN SOME SUCH
SITUATIONS THE COMMISSION HAS ATTACHED THE CONDITION OF RELOCATION.  E.
G., ST. LOUIS-S.F. RY. CO. TRUSTEES ABANDONMENT, 244 I.C.C. 485.  IN
OTHERS, IT HAS NOT.  E. G., SOUTHERN RY. CO. ABANDONMENT, 217 I.C.C.
764. 

FN2  THE COMMISSION IS EMPOWERED TO ATTACH CONDITIONS BY SEC. 1(20)
OF THE INTERSTATE COMMERCE ACT WHICH PROVIDES IN PART:  "THE COMMISSION
...  MAY ATTACH  ...  SUCH TERMS AND CONDITIONS AS IN ITS JUDGMENT THE
PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE."  49 U.S.C. SEC. 1(20). 
..END :























WILLIAMS V. TERMINAL CO., 315 U.S. 386 


NO. 112.  ARGUED JANUARY 6, 1942.  - DECIDED MARCH 2, 1942.  - 118 F.2D
324, 328, AFFIRMED. 


THE FAIR LABOR STANDARDS ACT OF 1938 REQUIRES EMPLOYERS TO PAY TO
EVERY EMPLOYEE ENGAGED IN INTERSTATE COMMERCE NOT LESS THAN THE
PRESCRIBED MINIMUM HOURLY WAGE.  WHEN THE ACT BECAME EFFECTIVE, THE
RESPONDENT TERMINAL COMPANIES GAVE NOTICE TO REDCAPS IN THEIR EMPLOY OF
THE ESTABLISHMENT OF A SO-CALLED ACCOUNTING AND GUARANTEE SYSTEM,
WHEREBY EACH REDCAP WAS REQUIRED TO ACCOUNT FOR THE TIPS HE RECEIVED
AND WAS GUARANTEED A COMPENSATION WHICH, INCLUDING TIPS, WOULD NOT BE
LESS THAN THE STATUTORY MINIMUM.  HELD: 

1.  THE EMPLOYMENT OF THE REDCAPS, PRIOR TO THE NOTICE, WAS AT WILL. 
THEIR CONTINUING TO WORK, AFTER THE NOTICE, CREATED A NEW CONTRACT.  P.
397. 

2.  THE ESTABLISHMENT OF THE ACCOUNTING AND GUARANTEE SYSTEM WAS NOT
INCONSISTENT WITH PROVISIONS OF THE RAILWAY LABOR ACT FORBIDDING
(EXCEPT AS PROVIDED) CHANGES OF PAY OR WORKING CONDITIONS OF EMPLOYEES
"AS A CLASS AS EMBODIED IN AGREEMENTS," SINCE THOSE PROVISIONS APPLY
ONLY TO COLLECTIVE BARGAINING AGREEMENTS.  P. 398. 

3.  REDCAPS WERE NOT EMBRACED IN A CERTAIN COLLECTIVE BARGAINING
AGREEMENT RELIED ON IN ONE OF THESE PROCEEDINGS.  P. 400. 

4.  THERE HAVING BEEN NO COLLECTIVE BARGAINING AGREEMENT PREVIOUSLY
IN EFFECT, THE ESTABLISHMENT OF THE ACCOUNTING AND GUARANTEE SYSTEM DID
NOT VIOLATE SEC. 2 OF THE RAILWAY LABOR ACT, EVEN THOUGH THE COMPANY
HAD RECEIVED FROM THE ACCREDITED REPRESENTATIVE OF THE REDCAPS A
REQUEST TO NEGOTIATE SUCH AN AGREEMENT.  P. 402. 

5.  THE ACCOUNTING AND GUARANTEE SYSTEM, AS APPLIED TO THE SPECIFIC
SITUATIONS HERE INVOLVED, CONSTITUTED COMPLIANCE WITH THE MINIMUM WAGE
REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT.  P. 403. 

6.  THE WORDS "PAY WAGES" IN SEC. 6 OF THE ACT ARE NOT TO BE
INTERPRETED AS LIMITED TO MONEY PASSING FROM THE TERMINAL COMPANY TO
THE REDCAP.  P. 407. 

7.  THE PETITIONERS HERE ARE WITHOUT STANDING TO ASSERT THAT IN ITS
OPERATION THE ACCOUNTING AND GUARANTEE SYSTEM VIOLATES SECS. 2 AND 6(7)
OF THE INTERSTATE COMMERCE ACT.  P. 408. 

8.  A TEMPORARY MODIFICATION OF THE ACCOUNTING PRACTICE OF THE
TERMINAL COMPANY IN ONE OF THESE CASES, DURING WHICH PERIOD REDCAPS
WERE NOT REQUIRED TO REPORT TIPS UNLESS THEY AMOUNTED TO LESS THAN THE
STATUTORY MINIMUM WAGE, DID NOT SHOW THAT THE ACCOUNTING AND GUARANTEE
SYSTEM HAD BEEN ABANDONED IN FAVOR OF THE FORMER SYSTEM OF
NONACCOUNTABILITY FOR TIPS.  P. 409. 

WILLIAMS ET AL. V. JACKSONVILLE TERMINAL CO.* 

*TOGETHER WITH NO. 1023, OCTOBER TERM, 1940, PICKETT, GENERAL
CHAIRMAN OF THE BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, ETC., V.
UNION TERMINAL CO., ALSO ON WRIT OF CERTIORARI, 314 U.S. 701, TO THE
CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT,  - ARGUED JANUARY 6, 7,
1942. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

IN NO. 112, CERTIORARI WAS GRANTED, 314 U.S. 590, TO REVIEW THE
AFFIRMANCE OF AN ORDER (35 F.SUPP.  267) GRANTING THE DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT IN A SUIT TO RECOVER WAGES AND LIQUIDATED
DAMAGES UNDER THE FAIR LABOR STANDARDS ACT. 

IN NO. 1023, CERTIORARI WAS GRANTED, 314 U.S. 701, ON PETITION FOR
REHEARING OF AN ORDER DENYING CERTIORARI, 313 U.S. 591, TO REVIEW THE
REVERSAL OF A JUDGMENT FOR THE PLAINTIFFS IN A SUIT TO RECOVER WAGES
AND LIQUIDATED DAMAGES UNDER THE FAIR LABOR STANDARDS ACT, 33 F.SUPP. 
244. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY BOTH THESE CASES IS WHETHER A RAILROAD
COMPANY OPERATING A TERMINAL SUBJECT TO THE RAILWAY LABOR ACT AND THE
FAIR LABOR STANDARDS ACT OF 1938 IS REQUIRED BY THOSE STATUTES, IN THE
ABSENCE OF A NEGOTIATED AGREEMENT RESPECTING WAGES, TO PAY "REDCAPS" A
FIXED MINIMUM HOURLY WAGE IRRESPECTIVE OF THE TIPS FROM PASSENGERS
RECEIVED BY THE REDCAPS, OR WHETHER AN ACCOUNTING AND GUARANTEE PLAN
WHICH LEAVES ALL TIPS WITH THE REDCAPS AND ASSURES THEM THAT EACH WILL
RECEIVE AT LEAST THE MINIMUM WAGE IS VALID. 

THE FAIR LABOR STANDARDS ACT IS NOT INTENDED TO DO AWAY WITH
TIPPING.  NOR DOES IT APPEAR THAT CONGRESS INTENDED BY THE GENERAL
MINIMUM WAGE TO GIVE THE TIPPING EMPLOYMENTS AN EARNINGS-PREFERENCE
OVER THE NON-SERVICE VOCATIONS.  THE PETITIONERS DO NOT DISPUTE THE
RAILROAD'S CONTENTION THAT, DURING THE ENTIRE PERIOD, EACH REDCAP
RECEIVED AS EARNINGS - CASH PAY PLUS TIPS - A SUM EQUAL TO THE REQUIRED
MINIMUM WAGE.  NOR IS THERE DENIAL OF INCREASED PAY TO THE REDCAPS ON
ACCOUNT OF THE MINIMUM WAGE GUARANTEE OF THE CHALLENGED PLAN AS
COMPARED WITH THE FORMER TIPPING SYSTEM.  THE GUARANTEE ALSO BETTERS
THE MISCHIEF OF IRREGULAR INCOME FROM TIPS AND INCREASES WAGE
SECURITY.  THE DESIRABILITY OF CONSIDERING TIPS IN SETTING A MINIMUM
WAGE, THAT IS, WHETHER TIPS FROM THE VIEWPOINT OF SOCIAL WELFARE SHOULD
BE COUNTED AS PART OF THAT LEGAL WAGE, IS NOT FOR JUDICIAL DECISION. 
FN1  WE DEAL HERE ONLY WITH THE PETITIONERS' ASSERTION THAT THE WAGES
ACT REQUIRES RAILROADS TO PAY THE REDCAPS THE MINIMUM WAGE WITHOUT
REGARD TO THEIR EARNINGS FROM TIPS. 

THE CASES HAVE A COMMON BACKGROUND.  PRIOR TO OCTOBER 24, 1938, THE
EFFECTIVE DATE OF THE FAIR LABOR STANDARDS ACT, THE REDCAPS AT THE
TERMINALS IN QUESTION PERFORMED THEIR FAMILIAR TASKS WITHOUT REWARD
OTHER THAN THE TIPS OF THE PASSENGERS, AND, ALTHOUGH SUBJECT TO
CONSIDERABLE SUPERVISION BY THE TERMINALS,  FN2  WERE NOT OFFICIALLY
CONSIDERED EMPLOYEES.  ON SEPTEMBER 29, 1938, THE INTERSTATE COMMERCE
COMMISSION, ACTING UNDER SEC. 1 OF THE RAILWAY LABOR ACT, 45 U.S.C.
SEC. 151, RULED THAT REDCAPS IN CITIES OF OVER 100,000 POPULATION WERE
EMPLOYEES WITHIN THAT ACT.  229 I.C.C. 410. 

SUBSEQUENT TO THAT RULING, THE PARALLEL SERIES OF EVENTS CULMINATING
IN THE TWO CONTROVERSIES NOW BEFORE US, WHILE DIFFERING IN DETAILS,
FOLLOWED THE SAME GENERAL PATTERN.  IN NO. 112, NOTHING FURTHER
OCCURRED UNTIL THE FAIR LABOR STANDARDS ACT BECAME EFFECTIVE.  AT THAT
TIME, THE JACKSONVILLE TERMINAL, IN SUPPOSED COMPLIANCE WITH THE ACT,
BEGAN PAYING ITS REDCAPS IN CASH THE AMOUNT BY WHICH THE STATUTORY
MINIMUM WAGE EXCEEDED EACH REDCAP'S RECEIPTS IN TIPS.  THIS SYSTEM, IN
SOME FORM, WAS USED AT THE TERMINAL UNTIL JULY 1, 1940. 

IN THE BELIEF THAT THE ACT REQUIRED PAYMENT OF THE MINIMUM WAGE
WITHOUT DEDUCTION OF TIPS, THE REDCAPS, BY THEIR REPRESENTATIVE,
WILLIAMS, BROUGHT AN ACTION AGAINST THE TERMINAL IN UNITED STATES
DISTRICT COURT FOR THE RECOVERY OF UNPAID MINIMUM WAGES BETWEEN OCTOBER
24, 1938, AND JULY 1, 1940, AND AN EQUAL ADDITIONAL AMOUNT AS
LIQUIDATED DAMAGES.  JURISDICTION OF THE ACTION WAS CONFERRED BY SEC.
24(8) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 41(8), AND BY SEC. 16(B) OF
THE F.L.S.A., 29 U.S.C. SEC. 216(B).  FN3  THE TERMINAL ANSWERED AND
MOVED FOR SUMMARY JUDGMENT.  UPON CONSIDERATION OF THE EXHIBITS,
DEPOSITIONS, AND STIPULATED FACTS THE TRIAL JUDGE GRANTED THE MOTION,
AND THE CIRCUIT COURT OF APPEALS AFFIRMED.  118 F.2D 324.  BECAUSE OF
THE IMPORTANCE OF THE QUESTION WHETHER THE TIPS COULD BE TREATED AS
PAYMENT OF THE STATUTORY WAGE, THE PETITION OF THE REDCAPS'
REPRESENTATIVE FOR CERTIORARI WAS GRANTED.  314 U.S. 590. 

ENGAGED IN INTERSTATE COMMERCE WAGES AT THE PRESCRIBED RATES PER HOUR. 
FN4  VIOLATION OF THAT REQUIREMENT RENDERS THE EMPLOYER LIABLE FOR THE
UNPAID WAGES AND FOR LIQUIDATED DAMAGES, RECOVERABLE IN AN ACTION BY
THE EMPLOYEES' DESIGNATED AGENT OR REPRESENTATIVE.  FN5  SINCE THE
TERMINAL ADMITTED BY STIPULATION THAT WILLIAMS WAS THE REDCAPS'
AUTHORIZED REPRESENTATIVE AD LITEM, THAT THE REDCAPS WERE ITS
EMPLOYEES, AND THAT THEY WERE ENGAGED IN INTERSTATE COMMERCE, THE SOLE
ISSUE WAS WHETHER THE PAYMENT REQUIRED BY SEC. 6 OF THE ACT HAD BEEN
MADE. 

THE EVIDENCE, TAKEN MOST FAVORABLY TO THE REDCAPS, DISCLOSES THE
FOLLOWING.  ABOUT OCTOBER 24, 1938, THE EFFECTIVE DATE OF THE ACT, THE
TERMINAL ISSUED A WRITTEN NOTICE TO EACH REDCAP:

             "JACKSONVILLE, FLORIDA,

                        "OCT.  24TH, 1938. 

"TO RED CAP ...................., 

"JACKSONVILLE TERMINAL COMPANY: 

"IN VIEW OF THE REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT,
EFFECTIVE OCTOBER 24, 1938, AND IN CONSIDERATION OF YOUR HEREAFTER
ENGAGING IN THE HANDLING OF HAND BAGGAGE AND TRAVELING EFFECTS OF
PASSENGERS OR OTHERWISE ASSISTING THEM AT OR ABOUT STATIONS OR
DESTINATIONS, IT WILL BE NECESSARY THAT YOU REPORT DAILY TO THE
UNDERSIGNED THE AMOUNTS RECEIVED BY YOU AS TIPS OR REMUNERATION FOR
SUCH SERVICES. 

"THE CARRIER HEREBY GUARANTEES TO EACH PERSON CONTINUING SUCH SERVICE
AFTER OCTOBER 24, 1938 COMPENSATION WHICH, TOGETHER WITH AND INCLUDING
THE SUMS OF MONEY RECEIVED AS ABOVE PROVIDED, WHICH (SIC) WILL NOT BE
LESS THAN THE MINIMUM WAGE PROVIDED BY LAW. 

"YOU ARE PRIVILEGED TO RETAIN SUBJECT TO THEIR BEING CREDITED ON SUCH
GUARANTEE ALL SUCH TIPS OR REMUNERATION RECEIVED BY YOU EXCEPT SUCH
PORTION THEREOF AS MAY BE REQUIRED OF YOU BY THE UNDERSIGNED FOR TAXES
OF ANY CHARACTER IMPOSED UPON YOU BY LAW AND COLLECTIBLE BY THE
UNDERSIGNED. 

"ALL THE MATTERS ABOVE REFERRED TO ARE SUBJECT TO THE RIGHT OF THE
CARRIER TO DETERMINE FROM TIME TO TIME THE NUMBER AND IDENTITY OF
PERSONS TO BE PERMITTED TO ENGAGE IN SAID WORK AND THE HOURS TO BE
DEVOTED THERETO, TO ESTABLISH RULES AND REGULATIONS RELATING TO THE
MANNER, METHOD AND PLACE OF RENDITION OF SUCH SERVICE, AND THE
ACCOUNTING REQUIRED. 

  "JACKSONVILLE TERMINAL COMPANY,

           "BY J. L. WILKES,             "PRESIDENT-GENERAL

           MANAGER." 

ON NOVEMBER 3RD L. L. WOOTEN, THE GENERAL CHAIRMAN OF THE BROTHERHOOD
OF RAILWAY AND STEAMSHIP CLERKS, RECEIVED THE REDCAPS' DESIGNATION OF
THE BROTHERHOOD AS THEIR BARGAINING REPRESENTATIVE.  NOVEMBER 4TH HE
SAW A COPY OF THE TERMINAL'S NOTICE.  IN THE MEANTIME HE HAD WRITTEN
WILKES ON OCTOBER 25TH THAT IN VIEW OF THE I.C.C. DECISION HE
CONSIDERED THE REDCAPS COVERED BY THE COLLECTIVE LABOR AGREEMENT OF
FEBRUARY 1, 1937, BETWEEN THE BROTHERHOOD AND THE TERMINAL, AND WITHIN
THE UNION'S JURISDICTION.  AFTER THE DESIGNATION THE BROTHERHOOD,
CONTINUALLY PROTESTING THE INVALIDITY OF THE EXISTING ACCOUNTING AND
GUARANTEE SYSTEM,  FN6  ATTEMPTED NEGOTIATIONS WITH THE TERMINAL FOR A
REDCAP CONTRACT.  EVENTUALLY, JUNE 16, 1939, A CONTRACT LIMITED TO
HOURS OF SERVICE AND WORKING CONDITIONS WAS SIGNED.  MEANWHILE THE
REDCAPS CONTINUED THEIR ACCUSTOMED ACTIVITIES, MADE THE REPORTS, KEPT
THE TIPS, AND ACCEPTED THE SUMS PROFFERED THEM BY THE TERMINAL.  AT
FIRST, NO RECEIPTS FOR WAGE PAYMENTS WERE REQUIRED AT JACKSONVILLE;
LATER, RECEIPTS WERE INTRODUCED EXPRESSLY RESERVING THE REDCAPS' RIGHT
TO SUE FOR ADDITIONAL AMOUNTS UNDER THE ACT.  FN7  ON JULY 1, 1940, THE
TERMINAL INAUGURATED A NEW SYSTEM OF CHARGING PASSENGERS TEN CENTS PER
PARCEL FOR REDCAP SERVICE, AND PAYING THE REDCAPS AN HOURLY WAGE.  AN
AGREEMENT WITH THE BROTHERHOOD REDUCING THIS ARRANGEMENT TO WRITING AND
ENDING THE CONTROVERSIAL ACCOUNTING AND GUARANTEE SYSTEM WAS SIGNED
AUGUST 9TH. 

NO. 1023 IS A SIMILAR PROCEEDING BROUGHT AGAINST THE UNION TERMINAL
COMPANY BY PICKETT, THE AGENT OF FORTY-FIVE REDCAPS WORKING IN THE
DALLAS TERMINAL.  AT THE TRIAL, THE EVIDENCE, CONSISTING OF AN AGREED
STATEMENT OF FACTS, SOME EXHIBITS, AND SOME UNCONTRADICTED TESTIMONY,
INDICATED, AND THE TRIAL JUDGE FOUND, THAT THE REDCAPS WERE EMPLOYEES
OF THE TERMINAL AND WERE ENGAGED IN INTERSTATE COMMERCE.  HE FURTHER
FOUND THAT PRIOR TO THE FAIR LABOR STANDARDS ACT THE REDCAPS WERE PAID
BY THE TIPS OF THE PUBLIC, THAT NO OTHER CONTRACT WAS MADE ON OR SINCE
OCTOBER 22, 1938, AND THAT THE QUESTION OF TIPS AS WAGES WAS STILL AN
OPEN ONE.  ON THE GROUND THAT TIPS OF THE PUBLIC WERE NOT WAGES PAID BY
THE EMPLOYER, HE GAVE JUDGMENT IN FAVOR OF THE REDCAPS.  THE CIRCUIT
COURT OF APPEALS REVERSED, 118 F.2D 328, AND CERTIORARI WAS DENIED. 
313 U.S. 591.  BECAUSE OF THE IMPORTANCE OF THE ISSUES PRESENTED, ON
PETITION FOR REHEARING CERTIORARI WAS GRANTED.  314 U.S. 701. 

SINCE THE BASIC ELEMENTS OF PICKETT'S CASE ARE NO LONGER IN DISPUTE,
THE CRUCIAL ISSUE AGAIN IS WHETHER THE MINIMUM WAGES WERE PAID.  IT WAS
SHOWN THAT, AFTER THE I.C.C. RULING THAT REDCAPS WERE EMPLOYEES, THE
REDCAPS NOTIFIED THE DALLAS TERMINAL ON OCTOBER 11, 1938, THAT THE
BOARD OF ADJUSTMENT OF THE BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS
WAS THEIR AUTHORIZED REPRESENTATIVE UNDER THE RAILWAY LABOR ACT, AND
PICKETT, AS GENERAL CHAIRMAN OF THE BOARD, ASKED FOR A CONFERENCE IN
ORDER TO NEGOTIATE AN AGREEMENT.  ON OCTOBER 22D, THE TERMINAL
DELIVERED TO EACH REDCAP A LETTER, SIGNED BY BUCKNER, THE TERMINAL'S
VICE-PRESIDENT AND GENERAL MANAGER, IN THE SAME TERMS AS THE NOTICE
USED AT THE JACKSONVILLE TERMINAL. 

TWO DAYS LATER, ON OCTOBER 24TH, THE EFFECTIVE DATE OF THE WAGE LAW,
PICKETT, ON BEHALF OF THE REDCAPS AND AT THEIR REQUEST, PROTESTED THIS
PROPOSAL IN A LETTER TO BUCKNER,  FN8  CONCLUDING: 

"THIS LETTER IS FORMAL NOTICE TO THE CARRIER, MADE FOR AND ON BEHALF
OF EACH EMPLOYEE CONCERNED AS A PROTEST AGAINST THE METHOD PROPOSED BY
THE CARRIER TO MEET ITS OBLIGATION UNDER THE SAID LAW, AND SINCE IT
APPEARS THAT THE CARRIER HAS ACTED IN THE PREMISE WITHOUT AUTHORITY OF
LAW OR UPON ORDER OF THE ADMINISTRATOR, WE ARE ACCORDINGLY FILING THIS
NOTICE OF PROTEST, FOR THE REASONS SET FORTH HEREIN." 

NO ACTION WAS EVER TAKEN TO RECALL OR REVOKE THE LETTER OF PROTEST
AND THE INDIVIDUAL REDCAPS NEVER TOLD THE COMPANY THAT THEY ACCEPTED
THE TERMS OF ITS LETTER OF OCTOBER 24TH. 

ON DECEMBER 26TH, 1938, PICKETT SUBMITTED TO BUCKNER A PROPOSED
GENERAL AGREEMENT COVERING THE HOURS OF SERVICE AND WORKING CONDITIONS
OF THE REDCAPS, BUT NOT THEIR WAGES.  AFTER PROTRACTED CONSIDERATION OF
THE MATTER BY BOTH THE TERMINAL AND THE UNION, BUCKNER WROTE PICKETT ON
DECEMBER 6, 1939, AS FOLLOWS: 

"AS I TOLD YOU AND AS YOU KNOW, THIS CASE AS TO WHETHER OR NOT THE
RAILROADS WILL BE ALLOWED CREDIT FOR TIPS RECEIVED UP TO $2.40 PER DAY,
IS IN THE COURT AND AS SOON AS SAME IS DECIDED WE WILL BE GLAD TO
NEGOTIATE AN AGREEMENT WITH THE CLERKS UNION, OF WHICH YOU ARE THE
GENERAL CHAIRMAN FOR THIS COMPANY."  ON JANUARY 1, 1940, ALTHOUGH THE
WAGE DISPUTE WAS NOT YET SETTLED, A WORKING AGREEMENT OF THE LIMITED
TYPE PICKETT HAD PROPOSED WAS SIGNED.  ON MARCH 6, 1940, THE ACCOUNTING
AND GUARANTEE SYSTEM WAS ABANDONED BY THE TERMINAL, PRESUMABLY FOR THE
TEN CENTS PER PARCEL CHARGE, AND THE FOLLOWING DAY THIS ACTION WAS
COMMENCED.  THROUGHOUT THE ENTIRE PRECEDING PERIOD THE REDCAPS HAD
PERFORMED THEIR USUAL DUTIES, HAD FILED SLIPS SHOWING THE HOURS WORKED
AND, EXCEPT FOR A BRIEF PERIOD, THE TIPS RECEIVED, HAD KEPT THE TIPS,
AND HAD ACCEPTED THE MONEY PAID BY THE TERMINAL PURSUANT TO ITS
GUARANTEE.  NEVER, HOWEVER, WAS THE DEMAND FOR ADDITIONAL PAY
ABANDONED, AND NO REDCAPS WERE DISCHARGED FOR REFUSING TO EXPRESSLY
CONSENT TO THE TERMINAL'S ACTION. 

EFFECT OF TERMINALS' NOTICE.  THE TERMINAL COMPANIES INSTITUTED THE
ACCOUNTING AND GUARANTEE SYSTEM BY THE WRITTEN NOTICE, QUOTED ABOVE, TO
EACH REDCAP AS THE ACT BECAME EFFECTIVE.  IT IS ACCEPTED HERE BY ALL
PARTIES THAT, BOTH PRIOR AND SUBSEQUENT TO THE NOTICE, THE REDCAPS WERE
EMPLOYEES OF THE RAILROADS  FN9  ENGAGED IN A SERVICE "SO CLOSELY
RELATED TO PHYSICAL TRANSPORTATION" IN INTERSTATE COMMERCE AS TO COME
UNDER SEC. 6(1) OF THE INTERSTATE COMMERCE ACT.  STOPHER V. CINCINNATI
UNION TERMINAL CO., 246 I.C.C. 41, 45.  AS SUCH EMPLOYEES, BEFORE THE
NOTICE THEY WERE PERMITTED BY AGREEMENT TO COME UPON THE TERMINAL
PROPERTY, RENDER SUPERVISED SERVICE TO THE COMPANIES' CUSTOMERS AND
RECEIVE PAY FOR PERFORMING THIS PORTION OF THE TERMINALS'
TRANSPORTATION BUSINESS BY RETAINING ALL TIPS RECEIVED.  THIS
EMPLOYMENT OF THE REDCAPS WAS AT WILL AND SUBJECT TO THE EMPLOYERS'
CONCLUSIONS AS TO THE DESIRABILITY OF CONTINUING THEIR EMPLOYMENT.  IN
BUSINESSES WHERE TIPPING IS CUSTOMARY, THE TIPS, IN THE ABSENCE OF AN
EXPLICIT CONTRARY UNDERSTANDING, BELONG TO THE RECIPIENT.  POLITES V.
BARLIN, 149 KY. 376, 149 S.W. 828; ZAPPAS V. ROUMELIOTE, 156 IOWA 709,
137 N.W. 935; MANUBENS V. LEON, (1919) 1 K.B. 208.  WHERE, HOWEVER, AN
ARRANGEMENT IS MADE BY WHICH THE EMPLOYEE AGREES TO TURN OVER THE TIPS
TO THE EMPLOYER, IN THE ABSENCE OF STATUTORY INTERFERENCE, NO REASON IS
PERCEIVED FOR ITS INVALIDITY.  FN10  THE EMPLOYER FURNISHES THE
FACILITIES, SUPERVISES THE WORK AND MAY TAKE THE COMPENSATION PAID BY
TRAVELERS FOR THE SERVICE, WHETHER PAID AS A FIXED CHARGE OR AS A TIP. 
A TIP TO A REDCAP IS COMPENSATION FOR SERVICE.  IT IS CUSTOMARILY GIVEN
AND ALWAYS EXPECTED WHEN SUCH SERVICE IS RENDERED. 

WITH THE EFFECTIVE DATE OF THE ACT THE EMPLOYERS BECAME BOUND TO PAY
A MINIMUM WAGE TO THEIR EMPLOYEES, THE REDCAPS.  ACCORDINGLY, THE
LATTER WERE NOTIFIED THAT FUTURE EARNINGS FROM TIPS MUST BE ACCOUNTED
FOR AND CONSIDERED AS WAGES.  ALTHOUGH CONTINUOUSLY PROTESTING THE
AUTHORITY OF THE RAILROADS TO TAKE OVER THE TIPS, THE REDCAPS REMAINED
AT WORK SUBJECT TO THE REQUIREMENT.  SUCH PROTESTS WERE UNAVAILING
AGAINST THE EMPLOYERS.  ALTHOUGH THE NEW PLAN WAS NOT SATISFACTORY TO
THE REDCAPS, THE NOTICE TRANSFERRED TO THE RAILROADS' CREDIT SO MUCH OF
THE TIPS AS IT AFFECTED.  BY CONTINUING TO WORK, A NEW CONTRACT WAS
CREATED.  THIS RESULT FOLLOWS BECAUSE THE EMPLOYER, AFTER NOTICE, MAY
KEEP ALL EARNINGS ARISING FROM THE BUSINESS.  LABATT, MASTER & SERVANT,
(2D ED.)  VOL. 5, SEC. 2037; RESTATEMENT, AGENCY, SEC. 388.  IF THE
REDCAP DID NOT ACCEPT THE TERMS OFFERED, HE WOULD BE A VOLUNTEER AND
NOT AN EMPLOYEE.  AS A VOLUNTEER HE COULD PROBABLY KEEP HIS TIPS, BUT
WOULD NOT BE ENTITLED TO A CONTRACTUAL WAGE.  RESTATEMENT, CONTRACTS,
SEC. 55.  NO SUCH GIFT OF SERVICES TO THE TERMINALS IS HERE CLAIMED. 

RAILWAY LABOR ACT.  PETITIONERS ASSERT THAT, WHATEVER MAY BE THE
AUTHORITY TO ISSUE ORDERS FOR THE ACCOUNTING AND GUARANTEE PLAN, THESE
RAILROADS COULD NOT VALIDLY EXERCISE THE POWER BECAUSE OF THE RAILWAY
LABOR ACT.  48 STAT. 1185.  THE APPLICABLE PROVISIONS ARE QUOTED IN THE
NOTE BELOW.  FN11 

THE OBJECT OF THE ACT IS TO AVOID INTERRUPTION TO COMMERCE THROUGH
THE PROMOTION OF FREE ASSOCIATION AMONG EMPLOYEES FOR THE PURPOSE OF
SETTLING DISPUTES BETWEEN THEM AND THE CARRIERS.  SEC. 2.  TO ASSURE
CONTINUED OPERATIONS, CHANGES BY THE CARRIERS IN AGREEMENTS REACHED
THROUGH COLLECTIVE BARGAINING, PENDING NEGOTIATIONS, ARE PROHIBITED. 
INDEPENDENT INDIVIDUAL CONTRACTS ARE NOT AFFECTED BY THE ACT.  IT IS TO
BE NOTED THAT SEC. 2, FIRST TO SIXTH, INCLUSIVE, RELIED UPON BY
PETITIONERS, IS LARGELY CONCERNED WITH THE ORGANIZATION OF EMPLOYEES,
FREEDOM FROM CARRIER INTERFERENCE IN SUCH ORGANIZATION, THE CHOICE OF
REPRESENTATIVES FOR COLLECTIVE BARGAINING, AND THE MANNER OF ENTERING
INTO AND CARRYING ON SUCH NEGOTIATIONS.  SECTION 2, SEVENTH, NOTE 11,
SUPRA, FORBIDS CHANGES OF PAY OR WORKING CONDITIONS OF EMPLOYEES "AS A
CLASS AS EMBODIED IN AGREEMENTS" EXCEPT AS PROVIDED IN SEC. 6, NOTE 11,
SUPRA.  THE CRUCIAL SEC. 6 IS PHRASED SO AS TO LEAVE NO DOUBT THAT ONLY
AGREEMENTS REACHED AFTER COLLECTIVE BARGAINING WERE COVERED.  SECTION
2, SEVENTH, FIRST APPEARED IN THE 1934 AMENDMENTS TO THE RAILWAY LABOR
ACT, AND SEC. 6 WAS LIKEWISE THEN AMENDED BY ADDING "IN AGREEMENTS" TO
THAT SECTION'S FORMER REQUIREMENT OF NOTICE OF "AN INTENDED CHANGE
AFFECTING RATES OF PAY, RULES OR WORKING CONDITIONS."  COMPARE SEC. 6,
44 STAT. 582, WITH SEC. 6, 48 STAT. 1197.  THESE ADDITIONS POINT
SQUARELY TO LIMITING THE BARGAINING PROVISIONS OF THE RAILWAY LABOR ACT
TO COLLECTIVE ACTION.  FN12 

IN NO. 112, THE JACKSONVILLE CASE, PETITIONERS FIND SUCH AN AGREEMENT
IN THE CONTRACT OF FEBRUARY 1, 1937, THE "REVISED AGREEMENT BETWEEN THE
JACKSONVILLE TERMINAL COMPANY AND EMPLOYEES HEREIN NAMED REPRESENTED BY
THE BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS,
EXPRESS AND STATION EMPLOYEES."  THE SCOPE OF THAT AGREEMENT IS LIMITED
TO THE HOURS OF SERVICE AND WORKING CONDITIONS OF CERTAIN GROUPS OF
EMPLOYEES, IN NONE OF WHICH DO REDCAPS APPEAR.  FN13 WAGES ARE NOT
COVERED.  WHEN THE CONTRACT WAS NEGOTIATED, THE REDCAPS WERE NOT
THOUGHT OF AS EMPLOYEES ENGAGED IN TRANSPORTATION SERVICE.  FN14
EVIDENTLY THE REDCAPS ONLY AUTHORIZED THE CONTRACTING BROTHERHOOD TO
REPRESENT THEM AFTER THE NOTICE.  FN15  NEITHER PARTY TO THE AGREEMENT
TOOK ANY STEPS IN REGARD TO THE REDCAPS UNDER THE 1937 AGREEMENT UNTIL
AFTER THE DISPUTED PLAN WAS INSTITUTED.  THEREAFTER, WHEN THE
BROTHERHOOD FIRST CLAIMED THAT THE REDCAPS WERE COVERED BY THE 1937
CLERKS' CONTRACT, THE SUGGESTION WAS PROMPTLY REPUDIATED IN WRITING BY
THE TERMINAL COMPANY.  FINALLY, AFTER THE AUTHORIZATION, THE
BROTHERHOOD DID IMMEDIATELY BEGIN NEGOTIATIONS FOR THE REDCAPS AND
ULTIMATELY SECURED A COLLECTIVE CONTRACT, JUNE 16, 1939, WHICH COVERED
HOURS OF SERVICE AND WORKING CONDITIONS AND WHICH EMBODIED MUCH THAT
WAS IN THE CLERKS' CONTRACT.  SUBSEQUENTLY A WAGE AGREEMENT OF AUGUST
9, 1940, BECAME A PART OF THIS EARLIER WORKING AGREEMENT.  WHILE NO
FINDING AS TO ITS COVERAGE APPEARS IN THE RECORD, WE ARE CLEAR FROM THE
1937 CONTRACT, ITS PRACTICAL APPLICATION BY THE PARTIES AND THE NEW
ARRANGEMENTS ULTIMATELY CONCLUDED, THAT THE REDCAPS WERE NOT WITHIN ITS
TERMS. 

A DIFFERENT APPROACH TO THIS PARTICULAR PROBLEM IS MADE BY PETITIONER
IN NO. 1023, THE UNION TERMINAL CASE.  THE DALLAS REDCAPS DO NOT REST
THEIR ARGUMENT UPON ANY COLLECTIVE AGREEMENT.  THEIR CONTENTION IS
THAT, SINCE THE BROTHERHOOD OF CLERKS, THEIR THEN ACCREDITED
REPRESENTATIVE FOR THE PURPOSES OF THE RAILWAY LABOR ACT, HAD ASKED THE
TERMINAL ON OCTOBER 11, 1938, FOR A CONFERENCE TO NEGOTIATE AN
AGREEMENT FOR WORKING CONDITIONS AND OTHER RELATED SUBJECTS, THE
SUBSEQUENT ACT OF THE TERMINAL IN ESTABLISHING THE ACCOUNTING AND
GUARANTEE PLAN VIOLATED THE RAILWAY LABOR ACT AND WAS THEREFORE
INEFFECTIVE TO CHANGE THE EXISTING ARRANGEMENTS BY WHICH THE REDCAPS
RETAINED THE TIPS AS THEIR OWN.  THIS, IT IS URGED, WOULD RESULT IN A
RECOVERY OF THE MINIMUM WAGE WITHOUT CREDIT TO THE CARRIER FOR THE
TIPS.  PETITIONER RELIES UPON THE FIRST SIX PARAGRAPHS OF SEC. 2 OF THE
RAILWAY LABOR ACT, 48 STAT. 1187, AND PARTICULARLY SEC. 2, FIRST, NOTE
11, SUPRA, PLACING THE DUTY ON THE CARRIER TO "MAKE  ...  AGREEMENTS
...  IN ORDER TO AVOID ANY INTERRUPTION  ...  TO THE OPERATION OF ANY
CARRIER." 

THE BROTHERHOOD AND THE TERMINAL DID NEGOTIATE AND FINALLY CONCLUDED,
EFFECTIVE JANUARY 1, 1940, THEIR FIRST COLLECTIVE WORKING AGREEMENT
COVERING THE REDCAPS.  BECAUSE THE CARRIER WAS, BY THE ACT, PLACED
UNDER THE DUTY TO EXERT EVERY EFFORT TO MAKE COLLECTIVE AGREEMENTS, IT
DOES NOT FOLLOW THAT, PENDING THOSE NEGOTIATIONS, WHERE NO COLLECTIVE
BARGAINING AGREEMENTS ARE OR HAVE BEEN IN EFFECT, THE CARRIER CANNOT
EXERCISE ITS AUTHORITY TO ARRANGE ITS BUSINESS RELATIONS WITH ITS
EMPLOYEES IN THE MANNER SHOWN IN THIS RECORD.  AS WE HAVE STATED IN
DISCUSSING THE JACKSONVILLE CASE, THE RAILWAY LABOR ACT DEALT WITH
COLLECTIVE BARGAINING AGREEMENTS ONLY, AND NOT WITH THE EMPLOYMENT OF
INDIVIDUALS.  THIS CONCLUSION IS PERTINENT IN CONSIDERING THE EFFECT OF
THE DALLAS REQUEST FOR COLLECTIVE BARGAINING.    THE INSTITUTION OF
NEGOTIATIONS FOR COLLECTIVE BARGAINING DOES NOT CHANGE THE AUTHORITY OF
THE CARRIER.  THE PROHIBITIONS OF SEC. 6 AGAINST CHANGE OF WAGES OR
CONDITIONS PENDING BARGAINING AND THOSE OF SEC. 2, SEVENTH, ARE AIMED
AT PREVENTING CHANGES IN CONDITIONS PREVIOUSLY FIXED BY COLLECTIVE
BARGAINING AGREEMENTS.  ARRANGEMENTS MADE AFTER COLLECTIVE BARGAINING
OBVIOUSLY ARE ENTITLED TO A HIGHER DEGREE OF PERMANENCY AND CONTINUITY
THAN THOSE MADE BY THE CARRIER FOR ITS OWN CONVENIENCE AND PURPOSE. 

MINIMUM WAGES.  WE STATED IN THE DISCUSSION OF THE NOTICE GIVEN BY
THE TERMINALS TO THEIR EMPLOYEES THAT ITS EFFECT WAS TO TRANSFER THE
TIPS COVERED BY THE NOTICE TO THE CREDIT OF THE TERMINALS.  BUT THIS
TERMINAL CREDIT IN THE HANDS OF THE REDCAPS, ASSERT PETITIONERS IN BOTH
CASES, CANNOT BE UTILIZED AS CASH PAID TO THE EMPLOYEE BY THE
EMPLOYER.  FN16  IT IS URGED THAT THE TERMINALS HAVE WORKED OUT A
SCHEME TO LARGELY RELIEVE THEMSELVES OF WAGE PAYMENTS TO REDCAPS AND TO
LET TRAVELERS PAY "AMOUNTS WHICH THE LAW REQUIRES SHOULD BE PAID BY THE
EMPLOYER ITSELF," AND THAT THE ACCOUNTING DIFFICULTIES MAKE THE PLAN
NOT ONLY UNDESIRABLE BUT CONTRARY TO THE POLICY OF THE STATUTE AS
LIKELY TO FOSTER FALSE REPORTS OF TIPS BY REDCAPS IN ORDER TO REACH THE
MINIMUM AND SAVE THE TERMINALS FROM ANY GUARANTEE PAYMENTS. 

EMPLOYEES  ...  WAGES AT THE FOLLOWING RATES.  ..."  WAGES ARE DEFINED
ONLY BY THE DIRECTION TO INCLUDE IN THAT WORD THE "REASONABLE COST  ...
TO THE EMPLOYER OF FURNISHING SUCH EMPLOYEE WITH BOARD, LODGING, OR
OTHER FACILITIES.  ...  "  WHAT THE WORD "WAGES" CONNOTES IN ADDITION
TO THE ITEMS SPECIFIED, WE MUST DEDUCE FROM OTHER PROVISIONS OF THE ACT
IN THE LIGHT OF ITS LEGISLATIVE PURPOSE.  OBVIOUSLY, "PAY WAGES"
ORDINARILY MEANS FOR THE EMPLOYER TO HAND OVER MONEY OR ORDERS
CONVERTIBLE INTO MONEY AT FACE.  THE ABSENCE OF THE WORD "TIP" FROM THE
STATUTORY EXTENSION OF THE ORDINARY MEANING OF WAGES MAKES IT QUITE
CLEAR THAT NOT EVERY GRATUITY GIVEN A WORKER BY HIS EMPLOYER'S CUSTOMER
IS A PART OF HIS WAGES.  IF CONGRESS HAD HAD IT IN MIND TO INCLUDE IN
WAGES ALL TIPS, THE WORDS WERE READILY AVAILABLE FOR EXPRESSING THE
THOUGHT.  SUCH A CONCLUSION, HOWEVER, DOES NOT FORECLOSE A DECISION
THAT IN CERTAIN SPECIFIC SITUATIONS THE SO-CALLED TIPS MAY BE IN
REALITY THE EMPLOYEE'S COMPENSATION FOR HIS SERVICES, AND THEREFORE
WAGES. 

THE DIVERSE INTERESTS OF EMPLOYERS AND EMPLOYEES HAVE VARIOUSLY
INFLUENCED LEGISLATORS TO INCLUDE, EXCLUDE, OR IGNORE TIPS IN THE
SPECIFICATION OF WAGE ITEMS IN ENACTMENTS WHERE THE WAGE BASE WAS
IMPORTANT.  FOR EXAMPLE, THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT,  FN17 WHICH ALSO APPLIES TO EMPLOYMENT IN THE
DISTRICT OF COLUMBIA,  FN18  SPECIFICALLY INCLUDES TIPS FOR COMPUTATION
OF COMPENSATION.  WORKMEN'S COMPENSATION ACTS ARE USUALLY CONSTRUED AS
INCLUDING TIPS IN WAGES OR REMUNERATION, WITH A TENDENCY TO MAKE THE
INCLUSION OF TIPS AS WAGES TURN UPON THE CONTEMPLATION OF THE PARTIES,
EXPRESS OR IMPLIED, IN WAGE CONTRACTS.  FN19  STATE MINIMUM WAGE ACTS
ARE GENERALLY SILENT AS TO TIPS.  FN20  UNDER THE N.R.A. THE INCLUSION
OF TIPS IN WAGES ON A PLAN SIMILAR TO THE ACCOUNTING AND GUARANTEE PLAN
HERE INVOLVED, WAS PROPOSED.  FN21  IN THE APPROVED CODES, TIPS WERE
NOT EXPRESSLY CREDITED TOWARD WAGES, BUT THE RELATIVELY LOWER MINIMUMS
FOR THOSE CUSTOMARILY RECEIVING TIPS MAY INDICATE THAT TIPS WERE GIVEN
WEIGHT ALTHOUGH NOT EXPRESSLY MENTIONED.  FN22  THE FEDERAL SOCIAL
SECURITY LAWS DEFINE WAGES FOR OLD AGE BENEFITS FN23  AND SOCIAL
SECURITY TAXES  FN24  AS "ALL REMUNERATION FOR EMPLOYMENT, INCLUDING
THE CASH VALUE OF ALL REMUNERATION PAID IN ANY MEDIUM OTHER THAN
CASH."  THE REGULATIONS OF THE SOCIAL SECURITY BOARD STATE, "THE
FOLLOWING ARE EXCLUDED FROM THE COMPUTATION OF 'WAGES':  ...  TIPS OR
GRATUITIES PAID DIRECTLY TO AN EMPLOYEE BY A CUSTOMER OF AN EMPLOYER,
AND NOT IN ANY WAY ACCOUNTED FOR BY THE EMPLOYEE TO THE EMPLOYER." 
FN25  THE RAILROAD RETIREMENT ACT, SEC. 1(H),  FN26  AND THE RAILROAD
UNEMPLOYMENT INSURANCE ACT, SEC. 1(I)  FN27  EXCLUDE TIPS FROM
"COMPENSATION" WITHIN THE MEANING OF THEIR PROVISIONS.  THE RAILROAD
RETIREMENT BOARD HAS DETERMINED THAT ALL EARNINGS OF THE REDCAPS,
ACCOUNTED FOR TO THE CARRIERS UNDER THE PLAN HERE IN QUESTION, ARE
"MONEY REMUNERATION" AND THEREFORE "COMPENSATION" UNDER THE ACTS AND
NOT FORBIDDEN "TIPS."  FN28  WE CAN THEREFORE EXAMINE THE FAIR LABOR
STANDARDS ACT WITH THE SAFE ASSUMPTION THAT THE WORD "WAGES" HAS NO
FIXED MEANING EITHER INCLUDING OR EXCLUDING GRATUITIES. 

TO INTERPRET "PAY WAGES" AS LIMITED TO MONEY PASSING FROM THE
TERMINAL TO THE REDCAP WOULD LET CONSTRUCTION OF AN IMPORTANT STATUTE
TURN ON A NARROW TECHNICALITY.  IT, OF COURSE, CAN MAKE NO PRACTICAL
DIFFERENCE WHETHER THE REDCAPS FIRST TURN IN THEIR TIPS AND THEN
RECEIVE THEIR MINIMUM WAGE OR ARE CHARGED WITH THE TIPS RECEIVED UP TO
THE MINIMUM WAGE PER HOUR.  FN29 

CONGRESS APPROACHED THE PROBLEM OF IMPROVING LABOR CONDITIONS BY THE
ESTABLISHMENT OF A MINIMUM WAGE IN CERTAIN INDUSTRIES.  IT REQUIRED
THAT WORKERS IN THESE INDUSTRIES RECEIVE A COMPENSATION AT LEAST AS
GREAT AS THAT FIXED BY THE ACT.  EXCEPT FOR THAT REQUIREMENT, THE
EMPLOYER WAS LEFT FREE, IN SO FAR AS THE ACT WAS CONCERNED, TO WORK OUT
THE COMPENSATION PROBLEM IN HIS OWN WAY.  OTHER COURTS ARE IN ACCORD
WITH OUR VIEW.  HARRISON V. KANSAS CITY TERMINAL RY. CO., 36 F.SUPP. 
434; HARRISON V. TERMINAL RAILROAD ASSN. OF ST. LOUIS, 4 C.C.H. LABOR
CASES P60,346; RYAN V. DENVER UNION TERMINAL CO., ID., P60,618. 

THE OTHER ARGUMENTS OF PETITIONER HAVE BEEN CONSIDERED, BUT WE FIND
ONLY TWO THAT REQUIRE MENTION. 

FIRST.  IT IS SAID THAT IF THE CARRIERS TAKE CREDIT FOR THE TIPS AS
COMPENSATION FOR REDCAP SERVICE, IT WOULD BE IN EFFECT A CHARGE BY THE
TERMINALS FOR A TRANSPORTATION SERVICE, AND THEREFORE, SINCE THE
TERMINALS HAVE FILED NO COVERING TARIFF, A VIOLATION OF SEC. 6(7) OF
THE INTERSTATE COMMERCE ACT, 34 STAT. 587, 49 U.S.C. SEC. 6(7).  FN30
FURTHERMORE, PETITIONERS ASSERT SEC. 2 OF THE SAME ACT, PROHIBITING
SPECIAL RATES, IS VIOLATED BECAUSE BY THE CARRIER'S REGULATIONS THE
INDIGENT RECEIVE THE REDCAP SERVICE WITHOUT CHARGE.  NEITHER
CONTENTION, IF TRUE, WOULD AVAIL PETITIONERS.  SECTIONS 8, 9 AND 10 OF
THE INTERSTATE COMMERCE ACT PROVIDE FOR DAMAGES TO PERSONS INJURED BY
UNLAWFUL ACTS AND PUNISHMENT OF THE CARRIER OR ITS AGENTS.  THERE IS
NOTHING IN THE SECTIONS TO INDICATE THAT PETITIONERS WOULD HAVE A RIGHT
OF ACTION.  FN31 

SECOND.  IT IS URGED IN THE DALLAS CASE THAT THE TERMINAL FROM MARCH
1, 1939, TO OCTOBER 15, 1939, VOLUNTARILY ABANDONED THE ACCOUNTING AND
GUARANTEE SYSTEM IN FAVOR OF THE OLD SYSTEM OF NON-ACCOUNTABILITY FOR
TIPS.  WE FIND NOTHING IN THE MODIFIED ACCOUNTING PRACTICE DURING THAT
PERIOD TO SUPPORT SUCH A CONCLUSION.  RATHER THE TERMINAL SEEMS ONLY TO
HAVE SIMPLIFIED ITS BOOKKEEPING AND PARTIALLY RELIEVED THE REDCAPS OF
CLERICAL DUTIES.  PRIOR TO MARCH 1, 1939, AND AFTER OCTOBER 15TH, THE
REDCAPS HAD TO MAKE A DAILY REPORT OF BOTH HOURS WORKED AND TIPS
RECEIVED REGARDLESS OF AMOUNT, ON A PRINTED TIME SLIP FURNISHED BY THE
TERMINAL FOR THE PURPOSE.  BETWEEN MARCH 1ST AND OCTOBER 15TH, THE TIME
SLIPS FURNISHED BY THE COMPANY CONTAINED NO PROVISION FOR REPORTING
TIPS, BUT ONLY FOR REPORTING HOURS.  FN32  BUT THE REDCAPS WERE
INSTRUCTED THAT SHOULD ANY OF THEM, DURING ANY WORK PERIOD, RECEIVE IN
TIPS LESS THAN 25 CENTS PER HOUR, THE STATUTORY MINIMUM HOURLY WAGE, HE
SHOULD REPORT IT TO THE TERMINAL AND THE TERMINAL WOULD PAY THE
DIFFERENCE BETWEEN THE TIPS RECEIVED AND THE MINIMUM WAGE.  THUS THE
ONLY EFFECT OF THE CHANGE WAS TO ELIMINATE THE SUPERFLUOUS REPORTING OF
TIPS EQUALLING OR EXCEEDING THE MINIMUM WAGE - A STEP TOWARD MORE
EFFICIENT ADMINISTRATION, NOT ELIMINATION, OF THE ACCOUNTING AND
GUARANTEE SYSTEM.  AFFIRMED. 

FN1  SEE ANDERSON, TIPS AND LEGAL MINIMUM WAGES, XXXI AMERICAN LABOR
LEGISLATION REVIEW 11; GILSON, TIPS AND SOCIAL INSURANCE, ID. 67;
NEEDLEMAN, TIPPING AS A FACTOR IN WAGES, MONTHLY LABOR REVIEW, DECEMBER
1937, P. 1303. 

FN2  FOR EXAMPLE, THE TERMINALS FORBADE THE COLLECTION OF CHARGES FOR
REDCAP SERVICES, ISSUED INSTRUCTIONS FOR THE MEETING OF SICK OR
DISABLED PASSENGERS, PROVIDED EQUIPMENT FOR THAT PURPOSE, AND REQUIRED
THAT REDCAPS BE UNIFORMED AND SUITABLY DISPERSED ABOUT THE TERMINAL AT
SUCH HOURS AND IN SUCH PLACES AS THEIR SERVICES WOULD BE NEEDED. 

FN3  "(B)  ANY EMPLOYER WHO VIOLATES THE PROVISIONS OF SECTION 6 OR
AFFECTED IN THE AMOUNT OF THEIR UNPAID MINIMUM WAGES, OR THEIR UNPAID
OVERTIME COMPENSATION, AS THE CASE MAY BE, AND IN AN ADDITIONAL AMOUNT
AS LIQUIDATED DAMAGES.  ACTION TO RECOVER SUCH LIABILITY MAY BE
MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION BY ANY ONE OR MORE
EMPLOYEES FOR AND IN BEHALF OF HIMSELF OR THEMSELVES AND OTHER
EMPLOYEES SIMILARLY SITUATED, OR SUCH EMPLOYEE OR EMPLOYEES MAY
DESIGNATE AN AGENT OR REPRESENTATIVE TO MAINTAIN SUCH ACTION FOR AND IN
BEHALF OF ALL EMPLOYEES SIMILARLY SITUATED.  THE COURT IN SUCH ACTION
SHALL, IN ADDITION TO ANY JUDGMENT AWARDED TO THE PLAINTIFF OR
PLAINTIFFS, ALLOW A REASONABLE ATTORNEY'S FEE TO BE PAID BY THE
DEFENDANT, AND COSTS OF THE ACTION."  JUNE 25, 1938, C. 676, SEC.
16(B), 52 STAT. 1069. 

FN4  "(A)  EVERY EMPLOYER SHALL PAY TO EACH OF HIS EMPLOYEES WHO IS
ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE WAGES AT
THE FOLLOWING RATES - 

"(1)  DURING THE FIRST YEAR FROM THE EFFECTIVE DATE OF THIS SECTION,
NOT LESS THAN 25 CENTS AN HOUR, 

"(2)  DURING THE NEXT SIX YEARS FROM SUCH DATE, NOT LESS THAN 30
CENTS AN HOUR, 

     .         .         .         .     . 

"(B)  THIS SECTION SHALL TAKE EFFECT UPON THE EXPIRATION OF ONE
HUNDRED AND TWENTY DAYS FROM THE DATE OF ENACTMENT OF THIS ACT."  JUNE
25, 1938, C. 676, SEC. 6, 52 STAT. 1062, 29 U.S.C. SEC. 206. 

"AS USED IN THIS ACT  ...  (B) 'COMMERCE' MEANS TRADE, COMMERCE,
TRANSPORTATION, TRANSMISSION, OR COMMUNICATION AMONG THE SEVERAL STATES
OR FROM ANY STATE TO ANY PLACE OUTSIDE THEREOF. 

"(E)  'EMPLOYEE' INCLUDES ANY INDIVIDUAL EMPLOYED BY AN EMPLOYER. 

"(M)  'WAGE' PAID TO ANY EMPLOYEE INCLUDES THE REASONABLE COST, AS
DETERMINED BY THE ADMINISTRATOR, TO THE EMPLOYER OF FURNISHING SUCH
EMPLOYEE WITH BOARD, LODGING, OR OTHER FACILITIES, IF SUCH BOARD,
LODGING, OR OTHER FACILITIES ARE CUSTOMARILY FURNISHED BY SUCH EMPLOYER
TO HIS EMPLOYEES."  JUNE 25, 1938, C. 676, SEC. 3, 52 STAT. 1060, 29
U.S.C. SEC. 203. 

FN5  SEE NOTE 3, SUPRA. 

FN6  THE SYSTEM WAS SO DESCRIBED BECAUSE THE REDCAPS MADE A DAILY
ACCOUNTING OF THE NUMBER OF HOURS WORKED, AND THE AMOUNT OF TIPS
COLLECTED, AND BECAUSE THE TERMINAL GUARANTEED THE OVERALL RECEIPT OF
THE MINIMUM WAGE BY PAYING THE REDCAPS SEMI-MONTHLY ANY SHORTAGE
BETWEEN THE TOTAL TIPS AND THE MINIMUM. 

FN7  THE RECEIPT STATED: 

"IT IS MY UNDERSTANDING THAT BY SIGNING THIS RECEIPT I DO NOT FORFEIT
OR RELEASE MY RIGHT TO SUE FOR SUCH ADDITIONAL AMOUNT AS MAY BE DUE
UNDER SECTION 16(B) OF THE ACT." 

FN8  THE ENTIRE LETTER IS AS FOLLOWS: 

"I HAVE A COPY OF A CIRCULAR ISSUED BY YOUR COMPANY DATED AT DALLAS,
TEXAS, ON OCTOBER 22, 1938, AND WHICH WAS HANDED TO EACH EMPLOYEE TO
WHOM IT WAS ADDRESSED:  I.E., REDCAPS, THE GENERAL TENOR OF WHICH IS TO
REQUIRE THE INDIVIDUAL EMPLOYEE TO REPORT TO THE CARRIER THE AMOUNT
THAT HE RECEIVES IN TIPS FROM THE PUBLIC AND WHICH INFORMATION THE
CARRIER INTENDS TO EMPLOY, IN COMPILING ITS RECORDS TO INDICATE THAT IT
HAS COMPLIED WITH SECTION 6 OF THE FAIR LABOR STANDARDS ACT: 

"IN OTHER WORDS, THE CARRIER CONTEMPLATES CREDITING TIPS AND OTHER
MONEYS PAID TO ITS EMPLOYEES BY PERSONS OTHER THAN ITSELF TO RELIEVE
ITSELF OF THE OBLIGATIONS IMPOSED BY THE FOLLOWING QUOTED SECTION OF
THE LAW:

                     "'FAIR LABOR STANDARDS ACT: 

"'SECTION 6-(A).  EVERY EMPLOYER SHALL PAY TO EACH OF HIS EMPLOYEES
WHO IS ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR COMMERCE
WAGES AT THE FOLLOWING RATES - 

"'(1)  DURING THE FIRST YEAR FROM THE EFFECTIVE DATE OF THIS SECTION,
NOT LESS THAN 25 CENTS AN HOUR.' 

"THE ABOVE SECTION OF THE LAW WHICH IS QUOTED IN PART FOR THE PURPOSE
OF THIS NOTICE, CLEARLY SETS FORTH THAT EVERY EMPLOYER WHO ENGAGES IN
COMMERCE SHALL PAY TO EACH HIS EMPLOYEES DURING THE FIRST YEAR AFTER
THE EFFECTIVE DATE OF THE LAW 25 CENTS PER HOUR. 

"AN EXAMINATION OF THE LAW IN ITS ENTIRETY DOES NOT AUTHORIZE THE
CARRIER TO DEPEND UPON OTHERS TO DISCHARGE ITS OBLIGATION WITH RESPECT
TO THE LAW, IN PAYMENT OF WAGES IMPOSED THEREBY. 

"THIS LETTER IS FORMAL NOTICE TO THE CARRIER, MADE FOR AND ON BEHALF
OF EACH EMPLOYEE CONCERNED AS A PROTEST AGAINST THE METHOD PROPOSED BY
THE CARRIER TO MEET ITS OBLIGATION UNDER THE SAID LAW, AND SINCE IT
APPEARS THAT THE CARRIER HAS ACTED IN THE PREMISE WITHOUT AUTHORITY OF
LAW OR UPON ORDER OF THE ADMINISTRATOR, WE ARE ACCORDINGLY FILING THIS
NOTICE OF PROTEST, FOR THE REASONS SET FORTH HEREIN." 

FN9  IN THE MATTER OF REGULATIONS CONCERNING CLASS OF EMPLOYEES AND
SUBORDINATE OFFICIALS TO BE INCLUDED WITHIN TERM "EMPLOYEE" UNDER THE
RAILWAY LABOR ACT, EX PARTE NO. 72(SUB.  -NO. 1), 229 I.C.C. 410; CF.
COLE V. ATLANTIC COAST LINE R. CO., 211 N.C. 591, 191 S.E. 353; BOOKER
V. PENNSYLVANIA R. CO., 82 PA. SUPER.  588.    FN10  ON THE GENERAL
QUESTION OF THE VALIDITY OF A CONTRACT TO TURN OVER TIPS, SEE THE
FOLLOWING CASES:  HARRISON V. KANSAS CITY TERMINAL RY. CO., 36 F.SUPP. 
434, 438; GLOYD V. HOTEL LA SALLE CO., 221 ILL. APP. 104; IN RE FARB,
178 CAL. 592, 174 P. 320; SETREE V FALKNER, 5 LABOR CASES P60,779, 2
P.H. LABOR SERVICE P22,547(OHIO APP.). 

FN11  48 STAT. 1187-88, SEC. 2.  "FIRST.  IT SHALL BE THE DUTY OF ALL
CARRIERS, THEIR OFFICERS, AGENTS, AND EMPLOYEES TO EXERT EVERY
REASONABLE EFFORT TO MAKE AND MAINTAIN AGREEMENTS CONCERNING RATES OF
PAY, RULES, AND WORKING CONDITIONS, AND TO SETTLE ALL DISPUTES, WHETHER
ARISING OUT OF THE APPLICATION OF SUCH AGREEMENTS OR OTHERWISE, IN
ORDER TO AVOID ANY INTERRUPTION TO COMMERCE OR TO THE OPERATION OF ANY
CARRIER GROWING OUT OF ANY DISPUTE BETWEEN THE CARRIER AND THE
EMPLOYEES THEREOF. 

"SECOND.  ALL DISPUTES BETWEEN A CARRIER OR CARRIERS AND ITS OR THEIR
EMPLOYEES SHALL BE CONSIDERED, AND, IF POSSIBLE, DECIDED, WITH ALL
EXPEDITION, IN CONFERENCE BETWEEN REPRESENTATIVES DESIGNATED AND
AUTHORIZED SO TO CONFER, RESPECTIVELY, BY THE CARRIER OR CARRIERS AND
BY THE EMPLOYEES THEREOF INTERESTED IN THE DISPUTE." 

"SEVENTH.  NO CARRIER, ITS OFFICERS OR AGENTS SHALL CHANGE THE RATES
OF PAY, RULES, OR WORKING CONDITIONS OF ITS EMPLOYEES, AS A CLASS AS
EMBODIED IN AGREEMENTS EXCEPT IN THE MANNER PRESCRIBED IN SUCH
AGREEMENTS OR IN SECTION 6 OF THIS ACT."  45 U.S.C. SEC. 152. 

ID., 1197.  "SEC.  6.  CARRIERS AND REPRESENTATIVES OF THE EMPLOYEES
SHALL GIVE AT LEAST THIRTY DAYS' WRITTEN NOTICE OF AN INTENDED CHANGE
IN AGREEMENTS AFFECTING RATES OF PAY, RULES, OR WORKING CONDITIONS, AND
THE TIME AND PLACE FOR THE BEGINNING OF CONFERENCE BETWEEN THE
REPRESENTATIVES OF THE PARTIES INTERESTED IN SUCH INTENDED CHANGES
SHALL BE AGREED UPON WITHIN TEN DAYS AFTER THE RECEIPT OF SAID NOTICE,
AND SAID TIME SHALL BE WITHIN THE THIRTY DAYS PROVIDED IN THE NOTICE. 
IN EVERY CASE WHERE SUCH NOTICE OF INTENDED CHANGE HAS BEEN GIVEN, OR
CONFERENCES ARE BEING HELD WITH REFERENCE THERETO, OR THE SERVICES OF
THE MEDIATION BOARD HAVE BEEN REQUESTED BY EITHER PARTY, OR SAID BOARD
HAS PROFFERED ITS SERVICES, RATES OF PAY, RULES, OR WORKING CONDITIONS
SHALL NOT BE ALTERED BY THE CARRIER UNTIL THE CONTROVERSY HAS BEEN
FINALLY ACTED UPON AS REQUIRED BY SECTION 5 OF THIS ACT, BY THE
MEDIATION BOARD, UNLESS A PERIOD OF TEN DAYS HAS ELAPSED AFTER
TERMINATION OF CONFERENCES WITHOUT REQUEST FOR OR PROFFER OF THE
SERVICES OF THE MEDIATION BOARD."  45 U.S.C. SEC. 156. 

FN12  CF. VIRGINIAN RY. CO. V. FEDERATION, 300 U.S. 515, 548-549;
LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1, 44-45. 

FN13  THE CLOSEST ARE GROUPS (2) AND (3) DESCRIBED AS FOLLOWS: 

"GROUP (2)  OTHER OFFICE AND STATION EMPLOYEES - SUCH AS OFFICE BOYS,
MESSENGERS, CHORE BOYS, TRAIN ANNOUNCERS, GATEMEN, BAGGAGE AND PARCEL
ROOM EMPLOYEES, TRAIN AND ENGINE CREW CALLERS, TELEPHONE SWITCHBOARD
OPERATORS, ELEVATOR OPERATORS, OFFICE, STATION AND WAREHOUSE WATCHMEN
AND JANITORS. 

"GROUP (3)  LABORERS EMPLOYED IN AND AROUND STATIONS, STOREHOUSE, AND
WAREHOUSES." 

FN14  EX PARTE NO. 72(SUB.  -NO. 1), SUPRA, N. 9; STOPHER V.
CINCINNATI UNION TERMINAL CO., 246 I.C.C. 41. 

FN15  THE GENERAL CHAIRMAN OF THE BROTHERHOOD TESTIFIED: 

"Q. DOES THAT ORGANIZATION HAVE THE AUTHORITY, OR WERE THEY APPOINTED
BY THE REDCAPS, OR THE PLAINTIFFS IN THIS CASE, THE REDCAPS EMPLOYED BY
THE JACKSONVILLE TERMINAL COMPANY, TO NEGOTIATE CONTRACTS AND WAGE
AGREEMENTS FOR THEM WITH A JACKSONVILLE TERMINAL COMPANY? 

"A. IT WAS. 

"Q. AT OR ABOUT WHAT TIME? 

"A. ABOUT NOVEMBER 3RD, WAS WHEN THE OFFICIAL AUTHORIZATIONS WERE
TURNED OVER TO ME. 

"Q. WHAT YEAR? 

"A.  1938." 

FN16  IN NO. 112, PETITIONERS SAY:  "WE ARE DEALING HERE ONLY WITH
FAIR LABOR STANDARDS ACT AND NOT ANY OTHER ACT, STATUTE OR RULING OF
ANY COMMISSION.  IT IS THE MANDATORY REQUIREMENT OF THE ACT 'THAT THE
EMPLOYER SHALL PAY.'  THE ACT CONTAINS NO WORD, OR WORDS, OR PHRASES
SUGGESTING ANY GUARANTEE OF PAYMENT." 

IN NO. 1023, PETITIONERS SAY:  "WE, OF COURSE, DO NOT WANT TO BE
UNDERSTOOD AS CONTENDING THAT 25 CENTS RECEIVED IN TIPS WILL NOT
PURCHASE AS MUCH AS 25 CENTS RECEIVED IN WAGES, BUT WE DO SAY THAT
CONGRESS HAD THE RIGHT TO SAY WHAT MEANS SHOULD BE EMPLOYED TO CARRY
OUT THE PURPOSES OF THE ACT, AND THAT CONGRESS HAS SAID, AND FOR VERY
GOOD REASONS, THAT THE PURPOSES OF THE ACT CAN BEST BE ACCOMPLISHED BY
A DIRECT WAGE PAYMENT FROM THE EMPLOYER TO THE EMPLOYEE." 

FN17  MARCH 4, 1927, C. 509, SEC. 2(13), 44 STAT. 1425; 33 U.S.C.
SEC. 902(13). 

FN18  ACT OF MAY 17, 1928, C. 612, 45 STAT. 600. 

FN19  COMPARE HARTFORD CO. V. INDUSTRIAL ACCIDENT COMM'N, 41 CAL.
APP. 543, 183 P. 234; GLADYS GROSS' CASE, 132 ME. 59, 166 A. 55;
POWERS'S CASE, 275 MASS. 515, 176 N.E. 621; SLOAT V. ROCHESTER TAXICAB
CO., 177 APP. DIV. 57, 163 N.Y.S. 904, AFF'D MEM. 221 N.Y. 491, 116
N.E. 1076; BRYANT V. PULLMAN CO., 188 APP. DIV. 311, 177 N.Y.S. 488,
AFF'D MEM. 228 N.Y. 579, 127 N.E. 909; KADISON V. GOTTLIEB, 226 APP.
DIV. 700, 233 N.Y.S. 485; LLOYDS CASUALTY CO. V. MEREDITH, 63 S.W.2D
1051(TEX.  CIV.  APP.); FEDERAL UNDERWRITERS EXCHANGE V. HUSTED, 94
S.W.2D 540(TEX.  CIV.  APP.); PENN V. SPIERS & POND, LTD., (1908) 1
K.B. 766(C.A.); GREAT WESTERN RY. CO. V. HELPS, (1918) A.C. 141(H.L.) 
WITH BEGENDORF V. SWIFT & CO., 193 APP. DIV. 404, 183 N.Y.S. 917;
ANDERSON V. HORLING, 214 APP. DIV. 826, 211 N.Y.S. 487.  BUT CF.
INDUSTRIAL COMM'N V. LINDVAY, 94 COLO. 531, 31 P.2D 495; MAKRIS V. TOP
HAT RESTAURANT, INC., 16 N.J. MISC. 26, 195 A. 857; COATES V. WARREN
HOTEL, 18 N.J. MISC. 363, 13 A.2D 787, WHERE GRATUITIES WERE EXCLUDED
BY STATUTE.  UNEMPLOYMENT COMPENSATION IS APPARENTLY FOLLOWING THE SAME
TREND.  COMPARE MATTER OF FEINBERG, 258 APP. DIV. 834, 15 N.Y.S.2D 766
WITH ALEXANDER HAMILTON HOTEL CORP. V. BOARD OF REVIEW, 127 N.J.L. 184,
21 A.2D 739.  SEE WAGE AND HOUR MANUAL (1941 ED.)  191. 

FN20  SEE 2A C.C.H. LABOR LAW SERV. (3D ED.), 2 P.H. LABOR SERV.,
PASSIM.  PROBABLY THIS IS DUE TO THE FACT THAT IN MOST STATES THE
STATUTE DOES NOT FIX THE MINIMUM, BUT MERELY AUTHORIZES SOME BOARD OR
OFFICIAL TO DO SO BY ORDERS, OCCUPATION BY OCCUPATION.  SUCH ORDERS AS
RELATE TO TRADES IN WHICH TIPPING IS COMMON SEEM TO TAKE TIPS INTO
CONSIDERATION IN SETTING THE MINIMUM WAGE FOR THAT TRADE, AND QUITE
NATURALLY, THEREFORE, ARE APT EXPRESSLY TO FORBID CREDITING OF TIPS
AGAINST THE MINIMUM. 

E.G., NEW YORK STATE DEPT. OF LABOR, MINIMUM WAGE STANDARDS,
DIRECTORY ORDER NO. 5, RESTAURANT INDUSTRY, EFFECTIVE JUNE 3, 1940,
PROVIDES:  "SERVICE EMPLOYEES BASIC RATE.  THE BASIC MINIMUM WAGE FOR
SERVICE EMPLOYEES IN NEW YORK CITY SHALL BE AT THE RATE OF 20 CENTS PER
HOUR.  ... NON-SERVICE EMPLOYEES BASIC RATE.  THE BASIC MINIMUM WAGE
FOR NON-SERVICE EMPLOYEES IN NEW YORK CITY SHALL BE AT THE RATE OF 29
CENTS PER HOUR  ...  FROM JUNE 3, 1940 THROUGH MARCH 2, 1941 AND 30
CENTS THEREAFTER.  ...  GRATUITIES.  IN NO EVENT SHALL GRATUITIES FROM
PATRONS OR OTHERS BE COUNTED AS PART OF THE MINIMUM WAGE.  SERVICE
EMPLOYEE.  'SERVICE EMPLOYEE' MEANS ANY EMPLOYEE WHOSE DUTIES RELATE
SOLELY TO THE SERVING OF FOOD TO PATRONS SEATED AT TABLES AND TO THE
PERFORMANCE OF DUTIES INCIDENTAL THERETO, AND WHO CUSTOMARILY RECEIVE
GRATUITIES FROM SUCH PATRONS."  SEE ALSO, NEW YORK STATE DEPT. OF
LABOR, MINIMUM WAGE STANDARDS, DIRECTORY ORDER NO. 6, HOTEL INDUSTRY,
EFFECTIVE NOV. 25, 1940; NEW HAMPSHIRE BUREAU OF LABOR, MINIMUM WAGE
DIVISION, MANDATORY ORDER NO. 3, RESTAURANT OCCUPATION, EFFECTIVE NOV.
1, 1938; DISTRICT OF COLUMBIA MINIMUM WAGE BOARD, ORDER NO. 4, PUBLIC
HOUSEKEEPING OCCUPATION, EFFECTIVE MAY 8, 1938, AND REPRINTED IN THE
ANNUAL REPORT OF THE BOARD FOR 1939, PP. 27 FF. 

FN21  PROPOSED CODE OF FAIR COMPETITION FOR THE HOTEL INDUSTRY,
SUBMITTED SEPT. 6, 1933, BY THE AMERICAN HOTEL ASSOCIATION, ART. III
(C)(E); PROPOSED CODE OF FAIR COMPETITION FOR THE BARBER SHOP TRADE, AS
REVISED FOR PUBLIC HEARING ON JAN. 8, 1934, SUBMITTED BY THE BARBERS'
INDUSTRIAL RECOVERY ASSOCIATION, ART. IV (1); RESTAURANT INDUSTRY CODE
OF FAIR COMPETITION, SUBMITTED SEPT. 12, 1933, BY THE NATIONAL
RESTAURANT ASSOCIATION, ART. IV, SEC. 6. 

FN22  SEE NEEDLEMAN, TIPPING AS A FACTOR IN WAGES, SUPRA, NOTE 1, AT
1319. 

FN23  AUG. 10, 1939, C. 666, SEC. 209(A), 53 STAT. 1373; 42 U.S.C.
SEC. 409(A). 

FN24  I.R.C. SECS. 1426(A), 1607(B), 53 STAT. 1383, 1392; 26 U.S.C.
SECS. 1426(A), 1607(B). 

FN25 REG. 2, ART. 14, SOCIAL SECURITY BOARD, 2 F.R. 1280; 20 C.F.R.
SEC. 402.14.  SEE ALSO S.S.T. 301, 1938-1 CUM. BULL.  455. 

FN26  ACT OF JUNE 24, 1937, C. 382, SEC. 1(H), 50 STAT. 309; 45 U.S.C.
SEC. 228A (H). 

FN27  ACT OF JUNE 25, 1938, C. 680, SEC. 1(I), 52 STAT. 1095; 45
U.S.C. SEC. 351(I). 

FN28  OPINION NO. 1941, R.R. 35, U.I. 11, APPROVED BY THE BOARD ON
SEPTEMBER 18, 1941, B.O. 41-397, 3 RAILROAD RETIREMENT LAW BULLETIN -
. 

FN29  THE FORMER PLAN IS SUBSTANTIALLY THE TAG SYSTEM PUT INTO EFFECT
BY AGREEMENT OF THE RED CAPS AND THE CARRIER AT JACKSONVILLE FOLLOWING
THE TERMINATION OF THE ACCOUNTING AND GUARANTEE SYSTEM.  THE IMPORTANT
PROVISIONS ARE: 

"1.  RED CAPS WILL BE PAID THE HOURLY WAGE ESTABLISHED BY THE HOURS
AND THE WAGE LAW, OR ORDERS OF THE ADMINISTRATOR, AT THE MINIMUM SET IN
SUCH ORDERS OR LAW. 

     .         .         .         .         . 

"3.  DAILY RECORDS OF EACH RED CAP'S HOURS, TAGS SOLD, AND MONEY RE
REMITTED, WILL BE KEPT BY THE COMPANY; AT THE END OF EACH 15 DAY PERIOD
OR PAY ROLL PERIOD, ALL MONEY RECEIVED FROM SALE OF CHECKS, ETC., BY
RED CAPS WILL BE TOTALED, WAGES PAID TO RED CAPS, DEDUCTED, AFTER ONE
(1) CENT PER PARCEL OR TAG HAS BEEN SET ASIDE FOR COMPANY EXPENSES, THE
REMAINING NINE (9) CENTS USED TO PAY WAGES OF RED CAPS, AND CAPTAINS,
OTHER THAN THE TEN (10) CENTS PER HOUR FOR CAPTAINS COVERED IN ITEM 2. 

"IF THE SUM TOTAL OF NINE (9) CENTS PER PARCEL HANDLED AND OR TAGS
SOLD IS GREATER THAN THE WAGES PAID TO RED CAPS FOR THAT PERIOD, THE
REMAINING FUNDS WILL BE DIVIDED AMONG ALL RED CAPS ON THE BASIS OF
HOURS WORKED DURING THE PAY ROLL PERIOD, SO THAT ALL RED CAPS WILL
SHARE ALIKE FOR EACH HOURS SERVICE, FROM THIS FUND.  IF THE NINE (9)
CENTS PER PARCEL HANDLED IS NOT SUFFICIENT TO PAY WAGES OUTLINED IN
ITEM (1) OF THIS AGREEMENT, THE TERMINAL CO. AGREES TO PAY THE WAGES AS
OUTLINED IN ITEM 1." 

FN30  CF. STOPHER V. CINCINNATI UNION TERMINAL CO., 246 I.C.C. 41. 

FN31  BROWNLEE V. SOUTHERN RY. CO., 192 I.C.C. 119, 121.  THE
COMMISSION STATED:  "IT IS WELL SETTLED THAT A CARRIER IS ENTITLED TO
COMPENSATION FOR ANY TRANSPORTATION SERVICE RENDERED, AND THAT WHERE A
SERVICE HAS BEEN RENDERED FOR WHICH NO TARIFF AUTHORITY EXISTS AND THE
BENEFICIARY OF SUCH SERVICE HAS PAID THE SUM CLAIMED BY THE CARRIER, WE
ARE EMPOWERED TO ORDER THE PAYMENT OF REPARATION ONLY IN THE EVENT THE
SUM PAID BY THE SHIPPER AMOUNTED TO AN UNJUST OR UNREASONABLE EXACTION
FOR THE SERVICE RECEIVED."  SEE ALSO TWIN COACH CORP. V. ERIE R. CO.,
203 I.C.C. 393, 395; CITIES SERVICE OIL CO. V. ERIE R. CO., 237 I.C.C.
387, 389. 

FN32  MR. FLANAGAN: 

"WE NEXT OFFER IN EVIDENCE PLAINTIFF'S EXHIBIT 'C', WHICH IS ALSO A
TIME SLIP BUT A LITTLE DIFFERENT FROM THE ONE JUST READ, AND IT READS: 

"'THE UNION TERMINAL COMPANY.  DATE  ...  HOURS ON DUTY FROM  ...  M.
TO  ...  M., SHOWING FOUR OF THOSE LINES.' 

"AND THEN SAYS:  'TOTAL HOURS WORKED'  ...  , AND THEN A BLANK LINE
TO BE SIGNED BY THE RED CAP AND RIGHT UNDER IT THE WORDS, 'RED CAP.' 

"I CALL ATTENTION TO THE FACT THAT ON THIS SLIP THERE IS NO PROVISION
FOR REPORTING THE TIPS." 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE MURPHY CONCUR. 

I THINK THE JUDGMENTS SHOULD BE REVERSED.  IT APPEARS TO ME THAT THE
QUESTION IN THESE CASES IS: UPON WHOM DOES THE STATUTE IMPOSE THE DUTY
OF PAYING A MINIMUM WAGE, THE EMPLOYER OR SOMEONE ELSE?  THERE IS NO
AMBIGUITY IN THE CONGRESSIONAL MANDATE THAT "EVERY EMPLOYER SHALL PAY
TO EACH OF HIS EMPLOYEES  ...  WAGES  ...  NOT LESS THAN 30 CENTS AN
HOUR."  I AM UNABLE TO AGREE THAT TIPS GIVEN TO REDCAPS BY TRAVELLERS
ARE "WAGES" PAID TO THE REDCAPS BY THE RAILROAD. 

THE EMPLOYERS HERE COULD HAVE OPENLY CHARGED A FEE FOR THE SERVICES
PERFORMED BY REDCAPS.  IT APPEARS THAT THEY HAVE NOW ADOPTED SUCH A
SYSTEM.  IT IS SAID THAT THERE IS NO PRACTICAL DIFFERENCE BETWEEN A
SYSTEM UNDER WHICH THE RAILROADS OPENLY IMPOSE A CHARGE ON THE PUBLIC
AND ONE UNDER WHICH THE REDCAPS ACCEPT FROM TRAVELLERS SOCALLED TIPS,
TREATED BY THE RAILROAD AS A PART OF THE REDCAPS' WAGES.  GENERALLY,
THE TRAVELLER WHO PAYS A RAILROAD CHARGE KNOWS HE IS PAYING IT TO THE
RAILROAD.  ONE WHO GIVES A REDCAP A TIP DOES NOT NECESSARILY KNOW THAT
HE IS THEREBY HELPING THE RAILROAD TO DISCHARGE ITS STATUTORY DUTY OF
PAYING A MINIMUM WAGE TO ITS EMPLOYEES.  THE TIPPAYING PUBLIC IS
ENTITLED TO KNOW WHOM IT TIPS, THE REDCAP OR THE RAILROAD.  A PLAN LIKE
THAT BEFORE US, WHICH COVERTLY DIVERTS TIPS FROM EMPLOYEES FOR WHOM THE
GIVER INTENDED THEM TO EMPLOYERS FOR WHOM THE GIVER DID NOT INTEND THEM
AND TO WHOM ANY KIND OF TIP DOUBTLESS WOULD NOT HAVE BEEN VOLUNTARILY
GIVEN, SEEMS TO ME TO CONTAIN AN ELEMENT OF DECEPTION.  AND I THINK AN
INTERPRETATION OF THE F.L.S.A. WHICH PERMITS EMPLOYERS TO BENEFIT FROM
SUCH A PLAN DOES NOT ACCORD WITH THE MEANING OF THE LANGUAGE USED BY
CONGRESS. 
..END :





















HYSLER V. FLORIDA, 315 U.S. 411 


NO. 64.  ARGUED DECEMBER 12, 1941.  - DECIDED MARCH 2, 1942.  - 146 FLA.
593, 1 SO.2D 628, AFFIRMED. 


1.  THE PROCEDURE ADOPTED BY FLORIDA, WHEREBY A PERSON UNDER SENTENCE
OF IMPRISONMENT OR DEATH, WHO CLAIMS THAT HIS CONVICTION RESULTED FROM
SOME FUNDAMENTAL UNFAIRNESS AMOUNTING TO A DENIAL OF DUE PROCESS OF
LAW, MAY APPLY TO THE SUPREME COURT OF THE STATE, EVEN THOUGH THAT
COURT HAS AFFIRMED HIS CONVICTION, FOR PERMISSION TO APPLY TO THE TRIAL
COURT FOR A WRIT OF ERROR CORAM NOBIS, AND WHO THUS IS AFFORDED A FULL
OPPORTUNITY TO HAVE A JURY PASS UPON HIS CLAIM, PROVIDED THAT HE FIRST
MAKE AN ADEQUATE SHOWING OF ITS SUBSTANTIALITY, IS A PROCEDURE WHICH
MEETS THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  P. 415. 

ACCORDING TO DECISIONS OF THE SUPREME COURT OF FLORIDA DEFINING THIS
PROCEDURE, A NAKED ALLEGATION THAT A CONSTITUTIONAL RIGHT HAS BEEN
INVADED IS NOT SUFFICIENT; A PETITIONER MUST MAKE A FULL DISCLOSURE OF
THE SPECIFIC FACTS RELIED ON, NOT MERELY HIS CONCLUSIONS AS TO THE
NATURE AND EFFECT OF SUCH FACTS; THE PROOF MUST ENABLE THE APPELLATE
COURT TO "ASCERTAIN WHETHER, UNDER SETTLED PRINCIPLES PERTAINING TO
SUCH WRIT, THE FACTS ALLEGED WOULD AFFORD, AT LEAST PRIMA FACIE, JUST
GROUND FOR AN APPLICATION TO THE LOWER COURT FOR A WRIT OF ERROR CORAM
NOBIS"; AND IN THE EXERCISE OF ITS DISCRETION IN MATTERS OF THIS SORT,
THE COURT SHOULD LOOK TO THE REASONABLENESS OF THE ALLEGATIONS OF THE
PETITION AND TO THE PROBABILITY OF THEIR TRUTH. 

2.  A PERSON WHO, WITH OTHERS, HAD BEEN CONVICTED OF MURDER IN
FLORIDA, AND WHOSE SENTENCE OF DEATH HAD BEEN AFFIRMED BY THE SUPREME
COURT OF THE STATE, PETITIONED THAT COURT FOR LEAVE TO APPLY TO THE
TRIAL COURT FOR A WRIT OF ERROR CORAM NOBIS, CLAIMING THAT HIS
CONVICTION HAD BEEN SECURED BY MEANS OF FALSE TESTIMONY DELIVERED AT
THE TRIAL BY AN ACCOMPLICE WHO WAS COERCED THERETO BY STATE OFFICIALS
AND WHO, FOUR YEARS LATER, ON THE EVE OF HIS OWN ELECTROCUTION FOR
PARTICIPATION IN THE SAME CRIME, HAD MADE AFFIDAVITS EXONERATING THE
PETITIONER.  THE SUPREME COURT OF FLORIDA, ON THE BASIS OF THE PETITION
AND ACCOMPANYING AFFIDAVITS AND THE RECORDS OF PRIOR CASES ARISING OUT
OF THE SAME CRIME, CONCLUDED THAT THE PETITIONER HAD FAILED TO MAKE THE
SHOWING OF SUBSTANTIALITY WHICH ACCORDING TO THE LOCAL PROCEDURE WAS
NECESSARY IN ORDER TO OBTAIN THE EXTRAORDINARY RELIEF FURNISHED BY THE
WRIT OF ERROR CORAM NOBIS; AND THIS COURT, UPON AN INDEPENDENT
EXAMINATION OF THE AFFIDAVITS ON WHICH THE CLAIM WAS BASED, HAS NO
DOUBT THAT THE FINDING OF INSUBSTANTIALITY WAS JUSTIFIED.  P. 421. 

HYSLER V. FLORIDA. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

CERTIORARI, 313 U.S. 557, TO REVIEW A JUDGMENT DENYING A PETITION FOR
LEAVE TO APPLY TO A TRIAL COURT FOR A WRIT OF ERROR CORAM NOBIS IN A
CASE OF MURDER. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

AFTER THE SUPREME COURT OF FLORIDA HAD AFFIRMED HIS CONVICTION FOR
MURDER, THE PETITIONER APPLIED TO THAT COURT FOR LEAVE TO ASK THE TRIAL
COURT TO REVIEW THE JUDGMENT OF CONVICTION.  THE BASIS OF HIS
APPLICATION WAS THE CLAIM THAT THE TESTIMONY OF TWO WITNESSES
IMPLICATING HIM WAS PERJURED, AND THAT THEY HAD TESTIFIED FALSELY
AGAINST HIM BECAUSE THEY WERE "COERCED, INTIMIDATED, BEATEN, THREATENED
WITH VIOLENCE AND OTHERWISE ABUSED AND MISTREATED" BY THE POLICE AND
WERE "PROMISED IMMUNITY FROM THE ELECTRIC CHAIR" BY THE DISTRICT
ATTORNEY.  AFTER TWICE CONSIDERING THE MATTER, THE SUPREME COURT OF
FLORIDA DENIED THE APPLICATION.  146 FLA. 593, 1 SO.2D 628.  WE BROUGHT
THE CASE HERE, 313 U.S. 557, IN VIEW OF OUR SOLICITUDE, ESPECIALLY
WHERE LIFE IS AT STAKE, FOR THOSE LIBERTIES WHICH ARE GUARANTEED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

THE GUIDES FOR DECISION ARE CLEAR.  IF A STATE, WHETHER BY THE ACTIVE
CONDUCT OR THE CONNIVANCE OF THE PROSECUTION, OBTAINS A CONVICTION
THROUGH THE USE OF PERJURED TESTIMONY, IT VIOLATES CIVILIZED STANDARDS
FOR THE TRIAL OF GUILT OR INNOCENCE AND THEREBY DEPRIVES AN ACCUSED OF
LIBERTY WITHOUT DUE PROCESS OF LAW.  MOONEY V. HOLOHAN, 294 U.S. 103. 
EQUALLY OFFENSIVE TO THE CONSTITUTIONAL GUARANTEES OF LIBERTY ARE
CONFESSIONS WRUNG FROM AN ACCUSED BY OVERPOWERING HIS WILL, WHETHER
THROUGH PHYSICAL VIOLENCE OR THE MORE SUBTLE FORMS OF COERCION COMMONLY
KNOWN AS "THE THIRD DEGREE."  BROWN V. MISSISSIPPI, 297 U.S. 278;
CHAMBERS V. FLORIDA, 309 U.S. 227; LISENBA V. CALIFORNIA, 314 U.S.
219.  IN THIS COLLATERAL ATTACK UPON THE JUDGMENT OF CONVICTION, THE
PETITIONER BASES HIS CLAIM ON THE RECANTATION OF ONE OF THE WITNESSES
AGAINST HIM.  HE CANNOT, OF COURSE, CONTEND THAT MERE RECANTATION OF
TESTIMONY IS IN ITSELF GROUND FOR INVOKING THE DUE PROCESS CLAUSE
AGAINST A CONVICTION.  HOWEVER, IF FLORIDA THROUGH HER RESPONSIBLE
OFFICIALS KNOWINGLY USED FALSE TESTIMONY WHICH WAS EXTORTED FROM A
WITNESS "BY VIOLENCE AND TORTURE," ONE CONVICTED MAY CLAIM THE
PROTECTION OF THE DUE PROCESS CLAUSE AGAINST A CONVICTION BASED UPON
SUCH TESTIMONY. 

AND SO WE COME TO THE CIRCUMSTANCES OF THIS CASE. 

ON NOVEMBER 25, 1936, AS A RESULT OF AN ATTEMPTED ROBBERY, JOHN H.
SURRENCY AND HIS WIFE, MAYME ELIZABETH, WERE MURDERED.  ON DECEMBER 16,
1936, HYSLER WAS INDICTED FOR THE MURDER OF JOHN SURRENCY; HE WAS TRIED
ON JANUARY 21, 1937, WAS CONVICTED ON FEBRUARY 12, 1937, WITH
RECOMMENDATION OF MERCY, AND WAS THEREAFTER SENTENCED TO IMPRISONMENT
FOR LIFE.  ON FEBRUARY 3, 1938, HIS SENTENCE WAS AFFIRMED BY THE
FLORIDA SUPREME COURT.  132 FLA. 200, 181 SO. 350.  THE RECORD IN THE
CASE WAS MORE THAN 3000 PAGES.  ON JANUARY 15, 1937, HYSLER, TOGETHER
WITH TWO OTHERS, JAMES BAKER AND ALVIN TYLER, WAS INDICTED FOR THE
MURDER OF MRS. SURRENCY.  A SEVERANCE HAVING BEEN GRANTED AS TO TYLER
AND BAKER, HYSLER WAS PLACED ON TRIAL ON MARCH 15, 1937, AND ON APRIL 5
WAS FOUND GUILTY WITHOUT RECOMMENDATION OF MERCY.  ON APRIL 23, 1937,
HE WAS SENTENCED TO DEATH.  ON APRIL 24 HE SUED OUT A WRIT OF ERROR TO
THE STATE SUPREME COURT, WHICH ON FEBRUARY 3, 1938, SUSTAINED THE
SENTENCE, AND ON JUNE 3 DENIED A REHEARING.  THE RECORD ON THIS SECOND
TRIAL WAS SOME 2500 PAGES.  132 FLA. 209, 181 SO. 354. 

SURRENCY KEPT A RESTAURANT NEAR JACKSONVILLE, AND ON THE FATAL DAY
WAS RETURNING FROM ONE OF HIS REGULAR AND WELL-KNOWN TRIPS TO THAT CITY
TO GET CHECKS CASHED.  HYSLER HAD KNOWN BAKER IN CONNECTION WITH
HYSLER'S ILLICIT WHISKEY BUSINESS.  BAKER AND TYLER WERE FRIENDS.  THE
PRINCIPAL EVIDENCE IN BOTH TRIALS AGAINST HYSLER WAS THEIR TESTIMONY. 
THEY TESTIFIED WITH CIRCUMSTANTIALITY THAT HYSLER INDUCED THEM TO HOLD
UP SURRENCY, FURNISHED THEM A CAR, A PISTOL, AND SOME WHISKEY, GAVE
THEM DETAILED INSTRUCTIONS FOR CARRYING OUT THE PLAN, AND BY
PREARRANGEMENT WAS IN THE VICINITY OF THE PLACE OF ITS EXECUTION. 
WHILE THEIR TESTIMONY DOUBTLESS WAS THE FOUNDATION OF HYSLER'S
CONVICTIONS, THE TESTIMONY BOTH OF NUMEROUS WITNESSES AND HYSLER
HIMSELF SHEDS MUCH CONFIRMING LIGHT ON THE STORY TOLD BY BAKER AND
TYLER.  A CAREFUL CONCURRING OPINION AFFIRMING THE CONVICTION NOW
CHALLENGED CONCLUDED THUS:  "FROM THE EVIDENCE IT IS DIFFICULT TO SEE
OR UNDERSTAND HOW THE JURY IN THE COURT BELOW COULD HAVE RENDERED A
VERDICT OTHER THAN GUILTY.  WE HAVE THOROUGHLY CONSIDERED EACH
ASSIGNMENT AND FAILED TO FIND ERROR IN THE TRIAL OF THE CAUSE IN THE
LOWER COURT."  132 FLA. 209, 235, 181 SO. 354, 364. 

ACCORDINGLY, THE DATE FOR THE EXECUTION WAS SET BY THE GOVERNOR OF
FLORIDA FOR THE WEEK OF FEBRUARY 20, 1939.  IN THE MEANTIME, HOWEVER,
AN APPLICATION FOR A WRIT OF HABEAS CORPUS BY HYSLER WAS MADE TO THE
SUPREME COURT OF FLORIDA, PARTLY ON THE GROUND OF INSANITY.  THIS WAS
DENIED BY THAT COURT ON FEBRUARY 20, 1939.  136 FLA. 563, 187 SO. 261. 
TYLER BROKE JAIL AND HAS APPARENTLY REMAINED A FUGITIVE FROM JUSTICE. 
BAKER WAS TRIED AFTER HYSLER, WAS CONVICTED OF MURDER IN THE FIRST
DEGREE, AND SENTENCED TO DEATH.  HIS CONVICTION WAS AFFIRMED BY THE
FLORIDA SUPREME COURT ON MARCH 14, 1939, AND A REHEARING DENIED ON
APRIL 11, 1939.  137 FLA. 27, 188 SO. 634. 

WE HAVE NOW REACHED THE FINAL CHAPTER OF THIS UNEDIFYING STORY IN THE
ADMINISTRATION OF CRIMINAL JUSTICE.  ON APRIL 10, 1941, MORE THAN FOUR
YEARS AFTER HYSLER'S CONVICTION FOR THE MURDER OF MRS. SURRENCY, HE
PETITIONED THE SUPREME COURT OF FLORIDA FOR PERMISSION TO APPLY TO THE
CIRCUIT COURT OF DUVAL COUNTY, FLORIDA (THE COURT BEFORE WHICH HE WAS
ORIGINALLY TRIED), FOR WRIT OF ERROR CORAM NOBIS.  THIS COMMON LAW
WRIT, IN ITS LOCAL ADAPTATION, IS FLORIDA'S RESPONSE TO THE
REQUIREMENTS OF MOONEY V. HOLOHAN, 294 U.S. 103, FOR THE JUDICIAL
CORRECTION OF A WRONG COMMITTED IN THE ADMINISTRATION OF CRIMINAL
JUSTICE AND RESULTING IN THE DEPRIVATION OF LIFE OR LIBERTY WITHOUT DUE
PROCESS.  SEE LAMB V. FLORIDA, 91 FLA. 396, 107 SO. 535; SKIPPER V.
SCHUMACHER, 124 FLA. 384, 169 SO. 58; JONES V. FLORIDA, 130 FLA. 645,
178 SO. 404.  IN BRIEF, A PERSON IN FLORIDA WHO CLAIMS THAT HIS
INCARCERATION IS DUE TO "FAILURE TO OBSERVE THAT FUNDAMENTAL FAIRNESS
ESSENTIAL TO THE VERY CONCEPT OF JUSTICE," LISENBA V. CALIFORNIA,
SUPRA, AT P. 236, EVEN AFTER HIS SENTENCE HAS BEEN DULY AFFIRMED BY THE
HIGHEST COURT OF THE STATE, HAS FULL OPPORTUNITY TO HAVE A JURY PASS ON
SUCH A CLAIM PROVIDED HE FIRST MAKES AN ADEQUATE SHOWING OF THE
SUBSTANTIALITY OF HIS CLAIM TO THE SATISFACTION OF THE SUPREME COURT OF
FLORIDA.  THE DECISIONS OF THAT COURT SHOW THAT A NAKED ALLEGATION THAT
A CONSTITUTIONAL RIGHT HAS BEEN INVADED IS NOT SUFFICIENT.  A
PETITIONER MUST "MAKE A FULL DISCLOSURE OF THE SPECIFIC FACTS RELIED
ON," AND NOT MERELY HIS CONCLUSIONS "AS TO THE NATURE AND EFFECT OF
SUCH FACTS."  THE PROOF MUST ENABLE THE APPELLATE COURT TO "ASCERTAIN
WHETHER, UNDER SETTLED PRINCIPLES PERTAINING TO SUCH WRIT, THE FACTS
ALLEGED WOULD AFFORD, AT LEAST PRIMA FACIE, JUST GROUND FOR AN
APPLICATION TO THE LOWER COURT FOR A WRIT OF ERROR CORAM NOBIS." 
WASHINGTON V. FLORIDA, 92 FLA. 740, 749, 110 SO. 259, 262; SEE SKIPPER
V. SCHUMACHER, 124 FLA. 384, 405-08, 169 SO. 58; SKIPPER V. FLORIDA,
127 FLA. 553, 554-55, 173 SO. 692.  THE LATEST FORMULATION BY THE
FLORIDA SUPREME COURT OF ITS FUNCTION IN CONSIDERING AN APPLICATION FOR
LEAVE TO APPLY TO THE TRIAL COURT FOR A WRIT OF ERROR CORAM NOBIS IS
FOUND IN MCCALL V. FLORIDA, 136 FLA. 349, 350, 186 SO. 803(1939):  "IN
THE EXERCISE OF ITS DISCRETION IN MATTERS OF THIS SORT THE COURT SHOULD
LOOK TO THE REASONABLENESS OF THE ALLEGATIONS OF THE PETITION AND TO
THE EXISTENCE OF THE PROBABILITY OF THE TRUTH THEREOF.  THIS DUTY WE
HAVE MET AND WE ARE CONVINCED THAT TO GRANT THE PETITION WOULD BE NO
LESS THAN A TRIFLING WITH JUSTICE." 

SUCH A STATE PROCEDURE OF COURSE MEETS THE REQUIREMENTS OF THE DUE
PROCESS CLAUSE.  VINDICATION OF CONSTITUTIONAL RIGHTS UNDER THE DUE
PROCESS CLAUSE DOES NOT DEMAND UNIFORMITY OF PROCEDURE BY THE FORTY
EIGHT STATES.  EACH STATE IS FREE TO DEVISE ITS OWN WAY OF SECURING
ESSENTIAL JUSTICE IN THESE SITUATIONS.  THE DUE PROCESS CLAUSE DID NOT
STEREOTYPE THE MEANS FOR ASCERTAINING THE TRUTH OF A CLAIM THAT THAT
WHICH DULY APPEARS AS THE ADMINISTRATION OF INTRINSIC JUSTICE WAS SUCH
MERELY IN FORM, THAT IN FACT IT WAS A PERVERSION OF JUSTICE BY THE LAW
OFFICERS OF THE STATE.  EACH STATE MAY DECIDE FOR ITSELF WHETHER, AFTER
GUILT HAS BEEN DETERMINED BY THE ORDINARY PROCESSES OF TRIAL AND
AFFIRMED ON APPEAL, A LATER CHALLENGE TO ITS ESSENTIAL JUSTICE MUST
COME IN THE FIRST INSTANCE, OR EVEN IN THE LAST INSTANCE, BEFORE A
BENCH OF JUDGES RATHER THAN BEFORE A JURY. 

FLORIDA THEN HAD AMPLE MACHINERY FOR CORRECTING THE CONSTITUTIONAL
WRONG OF WHICH HYSLER COMPLAINED.  BUT IT REMAINS TO CONSIDER WHETHER
IN REFUSING HIM RELIEF THE SUPREME COURT OF FLORIDA DENIED A PROPER
APPEAL TO ITS CORRECTIVE PROCESS FOR PROTECTING A RIGHT GUARANTEED BY
THE FOURTEENTH AMENDMENT. 

HYSLER'S CLAIM BEFORE THE SUPREME COURT OF FLORIDA WAS THAT BAKER
REPUDIATED HIS TESTIMONY INSOFAR AS IT IMPLICATED HYSLER AND THAT HE
NOW NAMED ANOTHER MAN AS THE INSTIGATOR OF THE CRIME.  CONSIDERING THE
FACT THAT THIS REPUDIATION CAME FOUR YEARS AFTER LEADEN-FOOTED JUSTICE
HAD REACHED THE END OF THE FAMILIAR TRAIL OF DILATORY PROCEDURE, AND
THAT BAKER NOW POINTED TO AN INSTIGATOR WHO WAS DEAD, THE SUPREME COURT
OF FLORIDA HAD EVERY RIGHT AND THE PLAIN DUTY TO SCRUTINIZE THIS
REPUDIATION WITH A CRITICAL EYE, IN THE LIGHT OF ITS FAMILIARITY WITH
THE FACTS OF THIS CRIME AS THEY HAD BEEN ADDUCED IN THREE TRIALS, THE
VOLUMINOUS RECORDS OF WHICH HAD BEEN BEFORE THAT COURT.  FN1 

THE FLORIDA SUPREME COURT HAD BEFORE IT FOUR AFFIDAVITS BY BAKER. 
THE AFFIDAVITS MUST BE CONSIDERED HERE AS THEY WERE BEFORE THAT COURT -
IN THEIR ENTIRETY.  ONE WAS MADE ON APRIL 7, 1941; THE SECOND ON APRIL
8 BETWEEN SIX AND SEVEN IN THE EVENING; ANOTHER BETWEEN EIGHT-THIRTY
AND NINE OF THE SAME NIGHT; THE FOURTH, THE NEXT DAY.  THE MOST
STRIKING FEATURE OF THIS SERIES OF RETRACTIONS IS THAT, IN HIS FIRST
AND SPONTANEOUS NEW ACCOUNT OF THE HAPPENINGS THAT LED TO THE MURDERS
ON NOVEMBER 25, 1936, BAKER DOES NOT ATTRIBUTE TO COERCION OR
INDUCEMENTS MADE BY STATE AUTHORITIES HIS TESTIMONY AT THE TRIALS THAT
HYSLER WAS THE INSTIGATOR OF THE CRIMES.  ON THE CONTRARY, ACCORDING TO
BAKER'S NEW STORY, AFTER THE KILLING OF THE SURRENCYS, TYLER AND HE
"AGREED BETWEEN THEM WHILE THEY WERE IN CRACKER SWAMP IN THE MARIETTA
OF THE ROBBERY OF THE SURRENCYS UPON CLYDE HYSLER BECAUSE THEY HAD HAD
CONSIDERABLE LIQUOR DEALINGS WITH CLYDE HYSLER AND KNEW HIM WELL, AND
FOR THE REASON THAT THE HYSLERS BORE A BAD REPUTATION IN DUVAL COUNTY,
AND FOR THE FURTHER REASON THAT CLYDE HYSLER'S FATHER HAD PLENTY OF
MONEY AND THEY THOUGHT THAT BY LAYING THE PLANNING OF THE ROBBERY OF
THE SURRENCYS ON CLYDE HYSLER THAT HIS FATHER AND HIS OTHER RELATIVES
WOULD PUT UP SUFFICIENT MONEY TO GET CLYDE HYSLER OUT OF THE TROUBLE
AND THAT BY LAYING IT ON TO CLYDE HYSLER, THAT HE, JAMES BAKER, AND
ALVIN TYLER WOULD ESCAPE THE DEATH PENALTY  ...  " 

THERE IS NO SUGGESTION WHATEVER IN THIS EXPLANATION OF WHAT IS NOW
CLAIMED TO HAVE BEEN A FALSE ACCUSATION THAT IT WAS INDUCED FROM
WITHOUT.  BAKER GIVES FIVE REASONS FOR HAVING FIXED THE BLAME ON HYSLER
- AN EXPLANATION TO WHICH HE HAD ADHERED FOR MORE THAN FOUR YEARS - BUT
ALL THESE REASONS MAKE BAKER AND TYLER THE SPONTANEOUS CONCOCTERS OF
THE ALLEGED FALSE CHARGE.  IT WAS NOT UNTIL THE NEXT DAY, THAT BAKER,
UNDER LEADING QUESTIONS, SUGGESTED THAT HIS ACCOUNT OF THE CRIME,
CONTEMPORANEOUS WITH IT, WAS INDUCED BY THE HOPE OF GETTING "LIFE
INSTEAD OF THE CHAIR."  FN2 EVEN IN THIS SECOND AFFIDAVIT THERE IS NO
HINT THAT THE PROSECUTOR HAD ANY KNOWLEDGE OF THE FALSITY OF HIS
IMPLICATION OF HYSLER.  FN3  ONLY AFTER A THIRD SESSION DID BAKER, IN
AN AMBIGUOUS REPLY TO ANOTHER LEADING QUESTION, CONVEY A SUGGESTION OF
THE PROSECUTOR'S KNOWLEDGE OF THE USE OF FORCE PRECEDING BAKER'S
ORIGINAL TESTIMONY.  THIS IS THE ONLY TESTIMONY THAT BEARS ON THE
COMPLICITY OF THE PROSECUTOR IN THE ALLEGED COERCION OF BAKER'S
TESTIMONY: 

"Q.  BAKER DO YOU KNOW WHETHER OR NOT MR. HARRELL (THE STATE'S
ATTORNEY) KNEW IF YOU WAS BEAT UP TO MAKE YOU TESTIFY? 

A. YES, SIR, HE KNOWS I COULDN'T SET DOWN, NONE OF THE SHERIFF'S
FORCE KNEW IT AT THE TIME, THEY KNEW IT LATER WHEN I MADE IT IN FRONT
ALL OF THE OFFICERS. 

Q. WHEN YOU MADE THAT STATEMENT YOU COULDN'T SET DOWN? 

A. YES, SIR, AND I CAN'T SET DOWN GOOD, AND I WISH YOU AND THOSE MEN
COULD SEE THAT NOW. 

Q. NO, WE WANT CARE TO SEE - THAT'S ALL YOU WANT TO SAY. 

A. (BAKER NODDING HIS HEAD INDICATING YES.)" 

IN HIS FINAL AFFIDAVIT ON APRIL 9, BAKER RETURNS TO THE ALLEGED
PROMISE OF THE STATE'S ATTORNEY THAT HE WOULD NOT "BURN" HIM.  BUT
THERE IS THIS TIME NO SUGGESTION THAT THE PROSECUTOR INDUCED OR KNEW OF
ANY FALSE TESTIMONY BY BAKER.    WE HAVE SEEN THAT, ACCORDING TO
BAKER'S FIRST STATEMENT ON APRIL 7, HIS ATTRIBUTION OF HYSLER'S
RESPONSIBILITY WAS SPONTANEOUS AND UNCOERCED.  THE CIRCUMSTANCES OF THE
CASE REINFORCE THIS AND CAST A PROPER SCEPTICISM UPON BAKER'S
SUBSEQUENT CLAIMS OF COERCION.  ACCORDING TO THE AFFIDAVITS OF THE TWO
LAWYERS WHO REPRESENTED HYSLER AT HIS TRIALS, THEY EXAMINED BAKER AND
TYLER "AT GREAT LENGTH" IN THE PRESENCE OF COUNSEL FOR THE TWO
ACCOMPLICES AND "SAID WITNESSES WERE PARTICULARLY QUESTIONED AS TO WHO
WAS INVOLVED IN SAID CASE, AND SAID WITNESSES DENIED THAT ANYONE WAS
INVOLVED IN SAID CASE OTHER THAN THE DEFENDANTS NAMED IN THE
INDICTMENT; THAT SAID WITNESSES FURTHER DENIED THAT ANY STATEMENTS
PREVIOUSLY MADE BY THEM TO LAW ENFORCEMENT OFFICERS WERE MADE UNDER
DURESS OR WITH ANY HOPE OR EXPECTATION OF REWARD."  AND THE PRESENT
CHIEF JUSTICE OF FLORIDA, IN HIS SEPARATE OPINION ON BAKER'S APPEAL,
CHARACTERIZED BAKER'S CONFESSION AS "ENTIRELY FREE AND VOLUNTARY."  137
FLA. 27, 29, 188 SO. 634, 635. 

IN ADDITION TO THESE FOUR AFFIDAVITS BY BAKER, THERE WERE FOUR
SUBSIDIARY AFFIDAVITS BY OTHERS.  THEIR WANT OF SIGNIFICANCE IS
SUFFICIENTLY ATTESTED BY THE FACT THAT ON THE MOTION FOR REHEARING OF
THIS CAUSE BEFORE THE FLORIDA SUPREME COURT, RELIANCE WAS PLACED
EXCLUSIVELY UPON THE BAKER AFFIDAVITS AND NO REFERENCE WHATEVER WAS
MADE TO THESE SUBSIDIARY AFFIDAVITS.  NOR WAS RELIANCE UPON THEM MADE
HERE. 

THE ESSENCE OF HYSLER'S CLAIM BEFORE THE SUPREME COURT OF FLORIDA WAS
THAT HIS CONVICTION WAS SECURED BY UNCONSTITUTIONAL MEANS, THAT BAKER
WAS COERCED TO TESTIFY FALSELY BY RESPONSIBLE STATE OFFICIALS.  THE
COURT HAD TO JUDGE THE SUBSTANTIALITY OF THIS CLAIM ON THE BASIS OF ALL
THAT WAS BEFORE IT, NAMELY, THE PETITION WITH ITS ACCOMPANYING
AFFIDAVITS AND THE RECORDS OF PRIOR CASES ARISING OUT OF THE SAME
CRIME.  THE COURT CONCLUDED THAT HYSLER'S PROOF DID NOT MAKE OUT A
PRIMA FACIE CASE FOR ASKING THE TRIAL COURT TO RECONSIDER ITS JUDGMENT
OF CONVICTION.  HOWEVER INEPTLY THE FLORIDA SUPREME COURT MAY HAVE
FORMULATED THE GROUNDS FOR DENYING THE APPLICATION, ITS ACTION LEAVES
NO ROOM FOR DOUBT THAT THE COURT DEEMED THE PETITIONER'S CLAIM WITHOUT
SUBSTANTIAL FOUNDATION.  WE CONSTRUE ITS FINDING THAT THE "PETITION"
DID NOT SHOW THE RESPONSIBILITY OF THE STATE OFFICIALS FOR THE ALLEGED
FALSITY OF BAKER'S ORIGINAL TESTIMONY TO MEAN THAT THE PETITIONER HAD
FAILED TO MAKE THE SHOWING OF SUBSTANTIALITY WHICH, ACCORDING TO THE
LOCAL PROCEDURE OF FLORIDA, WAS NECESSARY IN ORDER TO OBTAIN THE
EXTRAORDINARY RELIEF FURNISHED BY THE WRIT OF ERROR CORAM NOBIS.  FN4
AND OUR INDEPENDENT EXAMINATION OF THE AFFIDAVITS UPON WHICH HIS CLAIM
WAS BASED LEAVES NO DOUBT THAT THE FINDING OF INSUBSTANTIALITY WAS
JUSTIFIED.  IT CERTAINLY PRECLUDES A HOLDING THAT SUCH A FINDING WAS
NOT JUSTIFIED. 

THE STATE'S SECURITY IN THE JUST ADMINISTRATION OF ITS CRIMINAL LAW
MUST LARGELY REST UPON THE COMPETENCE OF ITS TRIAL COURTS.  BUT THAT
DOES NOT BAR THE STATE SUPREME COURT FROM EXERCISING THE VIGILANCE OF A
HARDHEADED CONSIDERATION OF APPEALS TO IT FOR UPSETTING A CONVICTION. 
THAT IN THE COURSE OF FOUR YEARS WITNESSES DIE OR DISAPPEAR, THAT
MEMORIES FADE, THAT A SENSE OF RESPONSIBILITY MAY BECOME ATTENUATED,
THAT REPUDIATIONS AND NEW INCRIMINATIONS LIKE BAKER'S ON THE EVE OF
EXECUTION ARE NOT UNFAMILIAR AS A MEANS OF RELIEVING OTHERS OR AS AN
IRRATIONAL HOPE FOR SELF - THESE OF COURSE ARE NOT VALID CONSIDERATIONS
FOR RELAXING THE PROTECTION OF CONSTITUTIONAL RIGHTS.  BUT THEY ARE
RELEVANT IN EXERCISING A HARDY JUDGMENT IN ORDER TO DETERMINE WHETHER
SUCH A BELATED DISCLOSURE SPRINGS FROM THE IMPULSE FOR TRUTH-TELLING OR
IS THE PRODUCT OF SELF-DELUSION OR ARTIFICE PROMPTED BY THE INSTINCT OF
SELF-PRESERVATION. 

OUR ULTIMATE INQUIRY IS WHETHER THE STATE OF FLORIDA HAS DENIED TO
THE PETITIONER THE PROTECTION OF THE DUE PROCESS CLAUSE.  THE RECORD
DOES NOT PERMIT THE CONCLUSION THAT FLORIDA HAS DEPRIVED HIM OF HIS
CONSTITUTIONAL RIGHTS. 

PETITIONER ALSO CLAIMS THAT FLORIDA HAS DENIED HIM THE "EQUAL
PROTECTION" OF ITS LAW.  THIS CONTENTION IS PLAINLY WITHOUT SUBSTANCE. 
IF HYSLER HAD BEEN SINGLED OUT FOR INVIDIOUS TREATMENT BY THE FLORIDA
SUPREME COURT, HE COULD PROPERLY COMPLAIN HERE.  COMPARE YICK WO V.
HOPKINS, 118 U.S. 356; MCFARLAND V. AMERICAN SUGAR CO., 241 U.S. 79. 
BUT IT IS NOT A FACT THAT THE FLORIDA SUPREME COURT HAS GRANTED SUCH
APPLICATIONS IN OTHER CASES BUT NOT IN HYSLER'S.  SEE, E.G., SKIPPER V.
FLORIDA, 127 FLA. 553, 173 SO. 692; MCCALL V. FLORIDA, 136 FLA. 349,
186 SO. 803.  AFFIRMED. 

FN1  IN DENYING HYSLER'S APPLICATION, THE SUPREME COURT OF FLORIDA
SPECIFICALLY STATED THAT IT WAS TAKING JUDICIAL COGNIZANCE OF ITS OWN
RECORDS.  146 FLA. 593, 594-95, 1 SO.2D 628. 

FN2  "Q.  THEN IT WAS A DEFINITE PROMISE FROM MR. HARRELL, THE
STATE'S ATTORNEY TO KEEP YOU FROM BURNING? 

A. HE SAID THAT HE WOULD SEE THAT I WOULD GET LIFE, BUT THAT HE WOULD
SEE THAT I DIDN'T STAY AT THE CHAIN GANG BUT THREE YEARS. 

Q. YOU SAY HE PLAYED OFF SICK TO KEEP FROM PROSECUTING YOU? 

A. YES, SIR, MR. SIMPSON HIS ASSISTANT AND MR. HALLOWS PROSECUTING,
THE JUDGE HAD ORDERED HIM TO HANDLE THE HYSLER CASE STRAIGHT THROUGH,
CAUSE MR. HOLLOWS WAS NOT FAMILIAR WITH THE CASE. 

Q. DO YOU KNOW WHETHER OR NOT MR. HARRELL HAD GONE OUT OF OFFICE AND
MR. HALLOWS HAD TAKEN OFFICE? 

A. YES, SIR, I THINK HE HAD AND THAT WAS WHY THE JUDGE WANTED HIM TO
CARRY THIS THING ON THROUGH, BUT I DON'T BE SURE. 

Q. IS THERE ANYTHING ELSE YOU WANT TO SAY ALONG THAT LINE ABOUT THOSE
THREATS OR BEATINGS? 

A. NO, SIR, THAT IS ALL I CAN THINK OF RIGHT NOW." 

FN3  "Q.  NOW WHAT THREATS OR PROMISES DID THEY MAKE YOU TO TESTIFY
AND IMPLICATE CLYDE HYSLER? 

A. WELL, MR. GRIFFEN AND THEM DIDN'T, THEY DIDN'T MAKE NO PROMISES,
MR. HULBERT DID TALK TO ME, THAT HE WOULD GET ME LIFE IMPRISONMENT -
LIFE INSTEAD OF THE CHAIR. 

Q. MR. HUBBERT TALKED TO YOU AND MADE PROMISES THAT YOU WOULD GET
LIFE INSTEAD OF THE CHAIR? 

A. YES, SIR. 

Q. WHAT POLICE - 

A. THAT'S WHAT IT WAS, POLICE OFFICERS AND JOHN HARRELL. 

Q. JOHN W. HARRELL, THE STATE'S ATTORNEY AT THAT TIME? 

A. YES, SIR. 

Q. DID MR. HARRELL TELL YOU THAT HE WOULD HELP YOU GET A LIFE
SENTENCE IF YOU WOULD TESTIFY AGAINST CLYDE HYSLER? 

A. HE SAID HE WOULDN'T BURN ME, THAT HE, MR. ACOSTA AND MR. CARSON
WOULD GET ME OUT IN THREE YEARS TIME." 

FN4  THE OPINION OF THE FLORIDA SUPREME COURT ON PETITIONER'S MOTION
FOR REHEARING STATES, INTER ALIA, THAT:  "THE ALLEGATIONS OF THE
PETITION DO NOT SHOW THAT THE PROSECUTING ATTORNEY HAD ANY GUILTY
KNOWLEDGE OF THE ALLEGED MALTREATMENT OF THE WITNESS (BAKER), OR THAT
THE ALLEGED FALSITY OF THE TESTIMONY OF THE WITNESS BAKER WAS KNOWN TO
THE PROSECUTING OFFICER.  THE PETITION DOES NOT SHOW THAT ANY ALLEGED
MALTREATMENT OF WITNESS WAS INFLICTED BY ANY OFFICER OF THE TRIAL COURT
OR THAT SAME WAS KNOWN TO ANY OFFICER OF THE TRIAL COURT."  146 FLA.
593, 594, 1 SO.2D 628. 

MR. JUSTICE BLACK, DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS AND MR.
JUSTICE MURPHY CONCUR. 

THE APPLICATION DENIED BY THE SUPREME COURT OF FLORIDA ALLEGES THAT
TYLER AND BAKER, THE ACCOMPLICES IN THE MURDER FOR WHICH HYSLER WAS
CONVICTED, CONFESSED AND GAVE FALSE TESTIMONY AGAINST HYSLER BECAUSE
THEY WERE "COERCED, INTIMIDATED, BEATEN, THREATENED WITH VIOLENCE AND
OTHERWISE ABUSED AND MISTREATED," AND BECAUSE THEY WERE PROMISED LIFE
SENTENCES INSTEAD OF THE ELECTRIC CHAIR.  SWORN STATEMENTS OF BAKER
MADE IN A STATE PRISON IN THE PRESENCE OF PRISON OFFICIALS WERE
PRESENTED IN SUPPORT OF THESE ALLEGATIONS, AS WERE CORROBORATIVE
AFFIDAVITS OF FOUR OTHERS.  TYLER, A FUGITIVE FROM JUSTICE, IS
UNAVAILABLE TO THE PETITIONER AS AN ADDITIONAL SOURCE OF VERIFICATION. 

THE FLORIDA SUPREME COURT HAS STATED THAT THE PETITION DOES NOT
ASSERT THAT "THE ALLEGED FALSITY OF THE TESTIMONY OF THE WITNESS BAKER
WAS KNOWN TO THE PROSECUTING OFFICER."  IN MOONEY V. HOLOHAN, 294 U.S.
103, THIS COURT HELD THAT THE USE BY A STATE OF TESTIMONY KNOWN BY ITS
"PROSECUTING AUTHORITIES" TO BE FALSE IS A DENIAL OF DUE PROCESS OF
LAW.  I DO NOT, HOWEVER, REGARD THIS AS A PROPER OCCASION TO DETERMINE
WHETHER THE RULE OF MOONEY V. HOLOHAN APPLIES ONLY WHERE THE GUILTY
KNOWLEDGE IS THAT OF "THE PROSECUTING OFFICER" AND NOT ANY OTHER
RESPONSIBLE OFFICIAL.  FOR EVEN IF EVERY REPRESENTATIVE OF THE STATE
BELIEVED THAT THE CONFESSIONS OF TYLER AND BAKER WERE TRUE IN EVERY
DETAIL, OTHER ALLEGATIONS OF THE PETITIONER MAKE OUT A DENIAL OF DUE
PROCESS ON INDEPENDENT GROUNDS, UPON WHICH THE SCOPE OF MOONEY V.
HOLOHAN HAS NO BEARING.  IN THOSE CASES IN WHICH THIS COURT HELD THAT A
CONVICTION BASED ON CONFESSIONS WRUNG FROM THE ACCUSED OR HIS
ACCOMPLICES BY THIRD-DEGREE METHODS WAS OFFENSIVE TO THE GUARANTEES OF
THE DUE PROCESS CLAUSE, THERE ARE NO INDICATIONS THAT THE KNOWLEDGE OF
ANY OF THE STATE OFFICIALS INVOLVED AS TO THE TRUTH OR FALSITY OF THE
CONFESSIONS WAS DEEMED RELEVANT.  FN1  AND IF THE ALLEGATIONS OF
HYSLER'S PETITION ARE TRUE, THAT IS, IF TYLER AND BAKER WERE HELD
INCOMMUNICADO AND TORTURED INTO SUPPLYING THE CONTROLLING TESTIMONY AT
HYSLER'S TRIAL, HIS CONVICTION IS TAINTED WITH A MEASURE OF BRUTALITY
WHICH I HAD SUPPOSED WAS SUFFICIENT, WITHOUT MORE, TO ESTABLISH A
VIOLATION OF CONSTITUTIONAL RIGHTS.  I AM THEREFORE UNABLE TO AGREE
WITH THE STATEMENT OF THE FLORIDA SUPREME COURT THAT "IF ALL PETITIONER
ALLEGES IN HIS PETITION HAD BEEN TRUE AND HAD BEEN FULLY MADE KNOWN TO
THE TRIAL COURT AND TO THE JURY WHICH TRIED THE DEFENDANT-PETITIONER,
IT WOULD NOT HAVE PRECLUDED THE ENTRY OF THE JUDGMENT UPON A VERDICT OF
GUILTY OF MURDER  ...  "  NOR DO I GO ALONG WITH THE INTIMATIONS OF
APPROVAL OF THAT STATEMENT TO BE FOUND IN THE OPINION WHICH THIS COURT
HAS JUST HANDED DOWN. 

THE OPINION OF THIS COURT DOES NOT REST SOLELY ON THE GROUND THAT
HYSLER'S ALLEGATIONS, IF TRUE, FAIL TO ESTABLISH A DENIAL OF DUE
PROCESS.  THE COURT FINDS IN THE OPINION OF THE FLORIDA SUPREME COURT A
DETERMINATION THAT "HYSLER'S PROOF" WAS INSUFFICIENT "TO MAKE THE
SHOWING OF SUBSTANTIALITY WHICH, ACCORDING TO THE LOCAL PROCEDURE OF
FLORIDA, WAS NECESSARY IN ORDER TO OBTAIN THE EXTRAORDINARY RELIEF
FURNISHED BY THE WRIT OF ERROR CORAM NOBIS."  BUT "HYSLER'S PROOF" IS
NOWHERE MENTIONED IN THE OPINION BELOW, AND OF THE EIGHT REASONS THERE
GIVEN FOR DENYING HYSLER'S PETITION, THE ONLY ONE WHICH TOUCHES IN ANY
WAY UPON THE CREDIBILITY OF HIS ALLEGATIONS ACCEPTS THEM AS TRUE. 

TO BE CONVINCED THAT THE FLORIDA SUPREME COURT DID NOT PASS ON THE
CREDIBILITY OF HYSLER'S ALLEGATIONS BUT MERELY DECIDED THAT THESE
ALLEGATIONS, HOWEVER FULLY PROVED, WOULD NOT MAKE OUT A VIOLATION OF
DUE PROCESS, I SHOULD NEED TO LOOK NO FURTHER THAN THE OPINION BELOW. 
BUT MORE SUPPORT FOR THIS INTERPRETATION OF FLORIDA'S DENIAL OF
HYSLER'S PETITION IS AMPLY AVAILABLE IN OTHER DECISIONS OF ITS HIGHEST
COURT.  IN WASHINGTON V. STATE, 92 FLA. 740, 749, 110 SO. 259, 262, FOR
EXAMPLE, THE FLORIDA SUPREME COURT SAID THE ISSUE TO BE DETERMINED WHEN
SUCH A PETITION IS BEFORE IT IS "WHETHER  ...  THE FACTS ALLEGED" - NOT
THE PROOF - "WOULD AFFORD, AT LEAST PRIMA FACIE, JUST GROUND FOR AN
APPLICATION TO THE LOWER COURT FOR A WRIT OF ERROR CORAM NOBIS."  THAT
IS NOT TO SAY THAT THE FLORIDA SUPREME COURT WILL NOT DENY A PETITION
WHEN THE FACTS ALLEGED ARE SO PATENTLY INCREDIBLE THAT FURTHER PURSUIT
OF THE REMEDY WOULD BE A FRIVOLOUS IMPOSITION UPON THE TRIAL COURT. 
THUS, IN MCCALL V. STATE, 136 FLA. 349, 350, WHERE THE ALLEGATIONS OF
THE PETITIONER DENIED HIS GUILT FOR THE FIRST TIME, WERE WITHOUT ANY
SUPPORTING AFFIDAVITS, AND WERE "POSITIVELY AND DIRECTLY CONTRADICTED"
BY HIMSELF AND OTHER WITNESSES AT THE TRIAL, THE COURT DENIED THE
PETITION, STATING THAT TO GRANT IT "WOULD BE NO LESS THAN A TRIFLING
WITH JUSTICE."  EVEN UNDER SUCH CIRCUMSTANCES, HOWEVER, THE COURT
EXPLICITLY POINTED OUT THAT IT HAD LOOKED INTO "THE PROBABILITY OF THE
TRUTH" OF THE ALLEGATIONS.  AND WHERE THERE IS A COLOR OF PLAUSIBILITY
IN THE ALLEGATIONS, THE COURT HAS BEEN METICULOUS TO GIVE THE
PETITIONER AMPLE OPPORTUNITY TO PROVE THEM.  IN CHAMBERS V. STATE, FOR
EXAMPLE, MR. JUSTICE BUFORD, WHO SPOKE FOR THE COURT IN ITS OPINION ON
HYSLER'S PETITION SAID:  "THE PETITION FOR LEAVE TO FILE WRIT OF ERROR
CORAM NOBIS PRESENTS ALLEGATIONS WHICH, IF TRUE, WOULD CONSTITUTE
GROUND FOR ISSUING THE WRIT.  IT IS NOT THE PROVINCE OF THIS COURT TO
DETERMINE WHETHER OR NOT SUCH ALLEGATIONS ARE TRUE.  THE DETERMINATION
OF SUCH QUESTION MAY BE HAD IN THE CIRCUIT COURT UNDER ISSUES DULY MADE
FOR THAT PURPOSE."  111 FLA. 707, 713, 152 SO. 437. 

IT MUST ALSO BE BORNE IN MIND THAT IF THE PROOF ACCOMPANYING A
PETITION FOR LEAVE TO APPLY FOR A WRIT OF ERROR CORAM NOBIS HAD TO BE
SO FULL AS TO ESTABLISH CONCLUSIVELY THE TRUTH OF THE ALLEGATIONS,
PETITIONERS WHO REQUIRED THE AMPLIFYING OR CORROBORATIVE EVIDENCE OF
INACCESSIBLE OR UNWILLING WITNESSES WOULD BE EFFECTIVELY BARRED FROM
ACCESS TO THIS REMEDY, FOR THEY WOULD NEVER HAVE THE OPPORTUNITY TO
UTILIZE THE COMPULSORY PROCESS WHICH A TRIAL OF THE FACTS WOULD
AFFORD.  IN THE LIGHT OF FLORIDA'S LIBERAL TREATMENT OF OTHER
PETITIONERS IN OTHER CASES,  FN2  AND THE UNAMBIGUOUS EXPLANATION ITS
COURTS HAVE GIVEN WHERE PETITIONS HAVE BEEN DENIED, I CANNOT IMPUTE TO
THE FLORIDA SUPREME COURT, ON THE BASIS OF ITS OPINION IN THIS CASE, A
DECISION THAT HYSLER'S "PROOF" WAS INADEQUATE TO SUPPORT HIS
ALLEGATIONS. 

ALTHOUGH IT IS AT BEST NOT CLEAR THAT THE COURT BELOW HAS CANVASSED
THE ISSUE OF CREDIBILITY, THIS COURT HAS NOT HESITATED TO DO SO.  IN
THE OPINION JUST ANNOUNCED, THERE HAS EVEN BEEN A RECITAL OF
CONSIDERATIONS RELEVANT IN DETERMINING WHETHER THE DISCLOSURE MADE BY
BAKER "SPRINGS FROM THE IMPULSE FOR TRUTH-TELLING OR IS THE PRODUCT OF
SELF-DELUSION OR ARTIFICE PROMPTED BY THE INSTINCT OF SELF
PRESERVATION."  AND THE COURT HAS APPARENTLY CONCLUDED THAT HYSLER'S
ALLEGATIONS ARE SO PATENTLY INCREDIBLE THAT DUE PROCESS DOES NOT
REQUIRE A HEARING.  WHERE, AS HERE, ALLEGATIONS THAT CONTROLLING
TESTIMONY WAS EXTORTED BY THIRD-DEGREE METHODS ARE SUPPORTED BY SWORN
STATEMENTS AND NOT DENIED BY ANYONE, A SUMMARY REJECTION OF THEM
WITHOUT HEARING BY THE COURT OF FIRST INSTANCE WOULD RAISE SERIOUS
QUESTIONS OF COMPLIANCE WITH THE CONSTITUTIONAL REQUIREMENT OF A FAIR
TRIAL.  FN3  UNDER SUCH CIRCUMSTANCES, I SHOULD SUPPOSE THIS COURT
WOULD BE PARTICULARLY RELUCTANT TO MAKE THE ORIGINAL AND ONLY
DISPOSITION ITSELF OF WHAT IT TREATS AS A MAJOR ISSUE OF THE CASE:  THE
CREDIBILITY OF HYSLER'S ALLEGATIONS.    THE SUPREME COURT OF FLORIDA
DECLINED EVEN TO CONSIDER THE CREDIBILITY OF THESE ALLEGATIONS,
PROCEEDING ON THE ASSUMPTION - ERRONEOUS IF TESTED BY PRINCIPLES WHICH
I BELIEVE DECISIONS OF THIS COURT HAVE AFFIRMED  FN4  - THAT, IF TRUE,
THEY WOULD BE INSUFFICIENT TO IMPUGN THE CONVICTION.  HAVING CORRECTED
THIS ERRONEOUS ASSUMPTION, THIS COURT, IN MY OPINION, SHOULD ALLOW THE
FLORIDA COURTS TO MAKE THEIR OWN DISPOSITION OF THE ISSUE THEY HAVE NOT
CONSIDERED.  WE GRANTED CERTIORARI BECAUSE OF A "SOLICITUDE, ESPECIALLY
WHERE LIFE IS AT STAKE, FOR THOSE LIBERTIES WHICH ARE GUARANTEED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT."  THAT SOLICITUDE WOULD
SEEM TO CALL FOR REMANDING THIS CASE FOR FURTHER CONSIDERATION BELOW. 
I CANNOT SEE WHY IT SHOULD IMPEL THIS COURT TO SUSTAIN THE CONVICTION
UPON A GRATUITOUS DISPOSITION OF AN ISSUE WHICH THE STATE COURT MIGHT
RESOLVE OTHERWISE. 

IN CASES RAISING NO ISSUE OF LIFE OR DEATH THIS COURT HAS NOT
HESITATED TO REMAND TO THE LOWER COURT FOR FURTHER PROCEEDINGS WHERE
AMBIGUITIES IN THE OPINION BELOW BECLOUDED THE GROUND OF DECISION.  FN5
THE VITAL ISSUES HERE AND THE MANNER OF TREATMENT BELOW COMPEL ME TO
BELIEVE THAT A LIKE PROCEDURE SHOULD BE FOLLOWED NOW.  BECAUSE THE
BASIS FOR MY BELIEF CAN BEST BE SHOWN BY REFERENCE TO THE RECORD, I AM
ADDING EXCERPTS FROM THE PETITION AND ACCOMPANYING EXHIBITS AS WELL AS
THE WHOLE OF THE OPINION OF THE FLORIDA SUPREME COURT IN AN APPENDIX. 

                              APPENDIX. 

I. EXCERPTS FROM HYSLER'S PETITION FOR LEAVE TO APPLY FOR A WRIT OF
ERROR CORAM NOBIS: 

"  ...  ALVIN TYLER AND JAMES BAKER WHO WERE CO-DEFENDANTS OF THE
PETITIONER, CLYDE HYSLER, AND UPON WHOSE TESTIMONY THE STATE OF FLORIDA
RELIED UPON FOR A CONVICTION OF PETITIONER WAS COERCED, INTIMIDATED,
BEATEN, THREATENED WITH VIOLENCE AND OTHERWISE ABUSED AND MISTREATED IN
ORDER TO COMPELL THE SAID WITNESSES, TYLER AND BAKER TO GIVE TESTIMONY
AT THE TRIAL OF SAID CAUSE AGAINST PETITIONER AND TO IMPLICATE SAID
PETITIONER IN THE KILLING OF MRS. MAMIE SURRENCY; AND FURTHER THAT THE
SAID WITNESSES, TYLER AND BAKER WERE PROMISED IMMUNITY FROM THE
ELECTRIC CHAIR, BY JOHN W. HARRELL AND FURTHER PROMISED IF THEY WOULD
IMPLICATE CLYDE HYSLER IN SAID MURDER AND TESTIFY AGAINST HIM DURING
THE TRIAL OF SAID CAUSE THAT HE AS STATE'S ATTORNEY OF THE FOURTH
JUDICIAL CIRCUIT OF FLORIDA TOGETHER WITH OTHER LAW ENFORCING OFFICERS
OF DUVAL COUNTY, FLORIDA WOULD SEE THAT HE DID NOT GET THE CHAIR, AND
THAT THEY WOULD PROCURE A PARDON AND HAVE HIM RELEASED FROM THE STATE
PENITENTIARY AFTER SERVING THREE (3) YEARS OF HIS SENTENCE, ALL OF
WHICH IS MORE PARTICULARLY DESCRIBED BY REFERENCE TO A STATEMENT AND
AFFIDAVIT MADE BY THE SAID JAMES BAKER ON THE 7TH DAY OF APRIL, A.D.
1941, ALSO BY FURTHER AFFIDAVIT AND STATEMENT MADE BY THE SAID JAMES
BAKER ON THE 8TH DAY OF APRIL, A.D. 1941, AND ALSO BY STATEMENT AND
AFFIDAVIT MADE BY THE SAID JAMES BAKER ON THE 9TH DAY OF APRIL, A.D.
1941, SAID AFFIDAVIT BEING MARKED 'A-B AND C' RESPECTIVELY AND HEREBY
MADE A PART OF THIS PETITION AS FULLY AS THOUGH SET OUT HEREIN IN HAEC
VERBA.  AND FOR FURTHER REASON THAT SAID AFFIDAVITS SHOW THAT THE SAID
PETITIONER WAS NOT IMPLICATED IN THE MURDER OF THE SAID MRS. MAMIE
SURRENCY BUT THAT ONE JOE PETERSON, SR. WAS THE PERSON IMPLICATED IN
SAID MURDER AND NOT THE PETITIONER, CLYDE HYSLER, ALL OF WHICH IS SET
OUT HEREIN MORE FULLY IN THE AFFIDAVITS HEREIN ABOVE REFERRED TO AND
FURTHER SUBSTANTIATED BY PHOTOSTATIC COPIES OF THE FOLLOWING
AFFIDAVITS, TO-WIT; AFFIDAVIT OF ONE ED. MOSLEY; AFFIDAVIT OF ONE A. J.
MOONEY; AFFIDAVIT OF ONE MRS. RUBY CREWS AND AFFIDAVIT OF ONE RUDOLPH
J. DOWLING, SAID PHOTOSTATIC COPIES BEING MARKED 'D-E-F AND G'
RESPECTIVELY, AND EACH OF SAID AFFIDAVITS BEING HERETO ATTACHED AND
HEREBY MADE A PART OF THIS PETITION AS FULLY AS THOUGH SET OUT HEREIN
IN HAEC VERBA. 

     .         .       .         .         . 

"THAT THE SAID WITNESSES, ALVIN TYLER AND JAMES BAKER IMMEDIATELY
AFTER AND FOLLOWING THEIR ARREST WERE HELD INCOMMUN-CADO FOR A LONG
PERIOD OF TIME WITHOUT BEING ALLOWED THE BENEFIT AND ADVICE OF COUNSEL,
WITHOUT BEING ALLOWED TO SEE OR CONFER WITH THEIR FRIENDS OR RELATIVES
AND WITHOUT BEING ALLOWED TO CONFER WITH THE ATTORNEYS FOR THE
PETITIONER; THAT SAID WITNESSES, TYLER AND BAKER WERE REMOVED FROM THE
DUVAL COUNTY JAIL AND CONFINED IN THE STATE PENITENTIARY AT RAIFORD,
FLORIDA WITH INSTRUCTIONS TO ALLOW NO ONE TO COMMUNICATE WITH THEM FOR
A LONG PERIOD OF TIME IMMEDIATELY FOLLOWING THEIR ARREST, AND IT BECAME
NECESSARY FOR THE ATTORNEYS FOR PETITIONER TO PROCURE AN ORDER OF THE
CIRCUIT COURT OF DUVAL COUNTY FOR PERMISSION TO CONFER WITH SAID
WITNESSES SEVERAL WEEKS AFTER THEIR ARREST, AND THEN ONLY IN COMPANY
WITH, AND IN THE PRESENCE OF THE ATTORNEYS APPOINTED BY THE COURT TO
REPRESENT SAID WITNESSES AND SAID ATTORNEYS FOR PETITIONERS MADE
DILIGENT EFFORT TO ASCERTAIN FROM SAID WITNESSES FACTS ABOUT WHICH THEY
WOULD TESTIFY TO IN TRIAL OF SAID PETITIONER, AND THEREBY USED DILIGENT
EFFORT IN TRYING TO PROCURE THE INFORMATION AS SET OUT HEREIN BY THE
RESPECTIVE AFFIDAVITS BY THE WITNESS, JAMES BAKER, BUT SAID WITNESS
BAKER WAS AFRAID TO DIVULGE THE TRUTH TO THE ATTORNEYS FOR THE
PETITIONER AS SET OUT HEREIN IN THE SAID AFFIDAVITS, A-B AND C HERETO
ATTACHED, AND THAT SAID PETITIONER WAS DENIED A FAIR AND IMPARTIAL
TRIAL BY REASON OF THE COERCION AND INTIMIDATION OF THE WITNESSES,
ALVIN TYLER AND JAMES BAKER AND THE HOPE OF REWARD PROMISED THEM AS
HEREINABOVE SET FORTH, AND HAS BY REASON THEREOF DENIED EQUAL
PROTECTION OF THE LAW AS GUARANTEED TO HIM BY THE 14TH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND WAS THEREBY DENIED DUE PROCESS OF THE
LAW AS GUARANTEED BY THE 5TH AMENDMENT OF THE UNITED STATES
CONSTITUTION. 

    .         .         .         .         . 

"THAT HAD THE SAID WITNESSES, TYLER AND BAKER NOT BEEN INTIMIDATED,
COERCED AND PROMISED IMMUNITY FROM THE ELECTRIC CHAIR BY THE LAW
ENFORCEMENT OFFICERS IN DUVAL COUNTY AS DESCRIBED IN AFFIDAVITS 'A-B
AND C' HERETO ATTACHED, AND BY JOHN W. HARRELL AS HEREIN ABOVE
DESCRIBED, AND THE SAID WITNESSES HAD BEEN LEFT FREE TO TESTIFY AND
TELL THE TRUTH AS TO THE SAID JOE PETERSON, SR. BEING THE PERSON
INVOLVED IN THE MURDER OF THE SAID MRS. MAMIE SURRENCY INSTEAD OF THE
PETITIONER, SAID TESTIMONY WOULD HAVE PREVENTED THE RENDITION OF THE
JUDGMENT, VERDICT AND SENTENCE OF PETITIONER IN THIS CAUSE, AND IF
ANOTHER TRIAL BE HAD OF THIS CAUSE, THIS PETITIONER WOULD BE
ACQUITTED. 

     .         .     .         .         . 

"THAT PETITIONER FURTHER ALLEGES THAT THE AFFIDAVITS OF THE WITNESS,
JAMES BAKER, BEING AFFIDAVITS HERETO ATTACHED AND MARKED 'A-B AND C'
AND MADE BY THE SAID JAMES BAKER FREELY AND VOLUNTARILY ON HIS PART AND
WITHOUT ANY SUGGESTION OF PROMPTING ON THE PART OF PETITIONER OR ANY
ONE ON HIS BEHALF, AND THAT THE STATEMENTS CONTAINED IN SAID AFFIDAVITS
WERE MADE IN THE PRESENCE OF SEVERAL PRISON OFFICIALS AT RAIFORD,
FLORIDA AFTER SAID JAMES BAKER MADE A VOLUNTARILY REQUEST TO SEE AND
TALK WITH THE ATTORNEY FOR PETITIONER." 

II.  EXCERPTS FROM EXHIBITS ACCOMPANYING HYSLER'S PETITION:  (THESE
ARE FROM THE TRANSCRIPT OF THREE CONFERENCES HELD IN A FLORIDA PRISON
ON APRIL 7 AND 8, 1941.  BAKER WAS UNDER OATH.  WHERE THE STATEMENTS
ARE NOT IN NARRATIVE FORM, THE QUESTIONER IS HYSLER'S ATTORNEY.) 

"  ...  JAMES BAKER  ...  DEPOSES AND SAYS: 

"THAT AFTER THE KILLING OF MR. AND MRS. SURRANCY NEAR GRAND CROSSING
IN JACKSONVILLE, FLORIDA ON THE 23RD DAY OF NOVEMBER 1936, THAT HE AND
ALVIN TYLER, THE MAN WHO WAS WITH HIM AT THE TIME OF THE SAID KILLING
AGREED BETWEEN THEM WHILE THEY WERE IN CRACKER SWAMP IN THE MARIETTA
OF THE ROBBERY OF THE SURRANCYS UPON CLYDE HYSLER BECAUSE THEY HAD HAD
CONSIDERABLE LIQUOR DEALINGS WITH CLYDE HYSLER AND KNEW HIM WELL, AND
FOR THE REASON THAT THE HYSLERS BORE A BAD REPUTATION IN DUVAL COUNTY,
AND FOR THE FURTHER REASON THAT CLYDE HYSLER'S FATHER HAD PLENTY OF
MONEY AND THEY THOUGHT THAT BY LAYING THE PLANNING OF THE ROBBERY OF
THE SURRANCYS ON CLYDE HYSLER THAT HIS FATHER AND HIS OTHER RELATIVES
WOULD PUT UP SUFFICIENT MONEY TO GET CLYDE HYSLER OUT OF THE TROUBLE
AND THAT BY LAYING IT ON TO CLYDE HYSLER THAT HE, JAMES BAKER AND ALVIN
TYLER WOULD ESCAPE THE DEATH PENALTY, THAT IN TRUTH AND FACT, THAT
CLYDE HYSLER WAS NOT IMPLICATED IN THE PLANNING OF THE ROBBERY AND HAD
NOTHING TO DO WITH THE KILLING OF MR. AND MRS. SURRANCY, BUT THAT ONE
JOE PETERSON, SR. WAS THE MAN WHO PLANNED THE ROBBERY AND HIRED THE
SAID JAMES BAKER AND ALVIN TYLER TO PERFORM THE ROBBERY AFTER BEING
ADVISED BY THE SAID JOE PETERSON THAT IT WOULD BE NO TROUBLE, AND THAT
MR. SURRANCY DID NOT CARRY A GUN, AND ALL THEY WOULD HAVE TO DO WOULD
BE TO POINT THE PISTOL AT HIM AND TAKE THE MONEY, THAT AFFIANT FURTHER
DEPOSES AND SAYS: 

"THAT CLYDE HYSLER WAS IN NO WAY RESPONSIBLE FOR THE ATTEMPTED
ROBBERY OF MR. AND MRS. SURRANCY; THAT HE HAD NOTHING TO DO WITH IT,
AND THE MAN WHO PLANNED THE ROBBERY AND WAS SUPPOSED TO PROTECT US IN
THE ROBBERY WAS JOE PETERSON AND NOT CLYDE HYSLER; THAT JOE PETERSON
WAS IN THE IMMEDIATE VICINITY WHEN THE ATTEMPTED ROBBERY AND THE
KILLING OF THE SURRANCYS TOOK PLACE, AND HAD IT NOT BEEN THAT JOE
PETERSON PLANNED THE ROBBERY AND HIRED ALVIN TYLER AND MYSELF TO ROB
MR. SURRANCY THEY WOULD PROBABLY HAVE STILL BEEN LIVING AND WE WOULD
NOT BE IN ANY TROUBLE." 

     .         .       .         .         . 

"Q.  NOW BAKER, I DON'T WANT YOU TO TELL ME ANYTHING EXCEPT THE
TRUTH, I WANT YOU TO TELL ME IF JOE PETERSON WAS THE MAN THAT GOT YOU
INTO ALL OF THIS INSTEAD OF CLYDE HYSLER. 

A. YES, SIR, HE IS THE MAN. 

Q. THEN YOU AND ALVIN TYLER PLANNED TO LAY THIS ALL ON CLYDE HYSLER
IN ORDER TO TRY TO GET OUT OF IT YOURSELF OR TO GET A LIFE SENTENCE
INSTEAD OF THE CHAIR? 

A. YES, SIR. 

     .         .         .         .         . 

"Q.  YOU RECALL WHAT OFFICERS BROUGHT YOU OVER HERE? 

A. MR. GENE GRIFFEN AND MR. DICK BARKER AND SOME MORE OFFICERS. 

Q. NOW WHAT THREATS OR PROMISES DID THEY MAKE YOU TO TESTIFY AND
IMPLICATE CLYDE HYSLER? 

A. WELL, MR. GRIFFEN AND THEM DIDN'T, THEY DIDN'T MAKE NO PROMISES,
MR. HULBERT DID TALK TO ME, THAT HE WOULD GET ME LIFE IMPRISONMENT -
LIFE INSTEAD OF THE CHAIR. 

Q. MR. HUBBERT TALKED TO YOU AND MADE PROMISES THAT YOU WOULD GET
LIFE INSTEAD OF THE CHAIR? 

A. YES, SIR. 

Q. WHAT POLICE - 

A. THAT'S WHAT IT WAS, POLICE OFFICERS AND JOHN HARRELL. 

Q. JOHN W. HARRELL, THE STATE'S ATTORNEY AT THAT TIME? 

A. YES, SIR. 

Q. DID MR. HARRELL TELL YOU THAT HE WOULD HELP YOU GET A LIFE SENTENCE
IF YOU WOULD TESTIFY AGAINST CLYDE HYSLER? 

A. HE SAID HE WOULDN'T BURN ME, THAT HE, MR. ACOSTA AND MR. CARSON
WOULD GET ME OUT IN THREE YEARS TIME. 

Q. WAS DETECTIVE CANNON AND - YOU WAS TALKING ABOUT AND INSPECTOR
ACOSTA - 

A. THE TWO MEN THAT ARRESTED ME, YES SIR. 

Q. NOW FROM THE TIME YOU WAS ARRESTED, BAKER, HOW LONG WAS YOU KEPT
TO YOURSELF BEFORE YOU WAS ALLOWED TO TALK TO YOUR LAWYER OR YOUR
FRIENDS? 

A. FROM THE TIME I WAS ARRESTED UNTIL THE 21ST OF JANUARY, TILL WE
WENT BACK AND HAD MY TRIAL SET. 

Q. THE DAY YOU WERE ARRAIGNED IN CIRCUIT COURT FOR THE TRIAL? 

A. YES, SIR. 

Q. YOU WAS HELD TO YOUR SELF WITHOUT BEING ALLOWED TO COMMUNICATE
WITH ANY OF YOUR FRIENDS OR YOUR LAWYER? 

A. YES, SIR. 

Q. WHEN WAS YOU ARRESTED? 

A. IT WAS ON THE 23RD - 24 - 26 - WHEN WAS THANKSGIVING DAY - JUST A
FEW DAYS. 

Q. YOU WAS ARRESTED JUST A FEW DAYS AFTER THANKSGIVING? 

A. YES, SIR. 

.         .         .         .         . 

"Q.  DID ANY OF THOSE OFFICERS THREATEN YOU? 

A. THEY CARRIED ME IN A DARK ROOM - 

Q. THAT WAS HERE? 

A. NO, SIR, THAT WAS IN JACKSONVILLE, THEY CARRIED ME OUT TO MARIETTA
AND WHIPPED ME. 

Q. WHAT WAS THAT WITH? 

A. SOMETHING COVERED UP IN CANVAS, I DON'T KNOW WHAT IT WAS AND A
PIECE OF HOSE AND SOMETHING LOOKED LIKE A PINE LIMB. 

Q. YOU REMEMBER ANY OF THOSE NAMES? 

A. YES, SIR. 

Q. WHO WERE THEY? 

A. MR. WOODS, R.L. WOODS, AND MR. CARSON SLAPPED ME TWO OR THREE
TIMES AND GAVE THEM THE BLACK JACK TO BEAT ME WITH.  ... 

Q. THAT WAS IN THE PRESENCE OF MR. WOODS, CARSON AND ACOSTA? 

A. YES, SIR. 

Q. THAT WAS TO TRY TO MAKE YOU IMPLICATE MR. HYSLER IN THE ROBBERY OF
MR. SURRENCY AND MRS. SURRENCY? 

A. YES, SIR. 

Q. AND IF IT HADN'T BEEN FOR THE BEATINGS AND THREATS AND THE
PROMISES TO GET YOU OUT OF HERE IN THREE YEARS AS YOU HAVE STATED ABOVE
WOULD YOU HAVE IMPLICATED MR. HYSLER IN THE CASE AT ALL? 

A. NO, SIR, CAUSE I TOLD THEM I DIDN'T NO ANYTHING ABOUT IT; AND
ANOTHER THING, BETWEEN MR. HYSLER'S FIRST TRIAL AND LAST ONE, MR.
HARRELL CAME DOWN TO THE COUNTY JAIL AFTER I WAS ALLOWED TO SEE PEOPLE,
I SAID, DON'T YOU KNOW THAT IF YOU BURN MR. HYSLER YOU WILL HAVE TO
BURN ME TOO, AND HE SAID HE COULD BURN THE WHOLE HYSLER FAMILY AND
DON'T BURN ME CAUSE HE AND MR. SIDNEY HULBERT, MR. CARSON AND MR.
CANNON AND SOME MORE OFFICERS WAS GOING TO RUN THE COUNTY AS LONG AS
THEY WERE RUNNING IT.           .         .         .         .
. 

"Q.  BAKER, HOW MANY TIMES DID THE OFFICERS THREATEN YOU AND BEAT YOU
AFTER YOU WERE ARRESTED? 

A. THEY BEAT ME ABOUT THREE O'CLOCK IN THE MORNING TO TEN O'CLOCK
BEFORE THEY GOT ME TO SAY ANYTHING. 

Q. IT WAS THE POLICE MADE YOU TELL THE SHERIFF'S OFFICE? 

A. YES, SIR. 

Q. WAS YOU AFRAID NOT TO TELL THEM WHAT THEY WANTED YOU TO, AFRAID
THEY WOULD BEAT YOU SOME MORE? 

A. YES, SIR, IF THEM - I SAID TWO WORDS THEY WOULD SLAP ME, BEFORE
THE SHERIFF BUNCH GOT THERE THEY HAD SENT OUT AND BOUGHT ME DINNER,
GIVE ME $5.00 OR $6.00 DOLLARS IN MONEY, AND SAID DON'T TELL ANY BODY
ABOUT ME BEING WHIPPED, IF ANYONE ASKED ME, TELL THEM NO. 

Q. THEN IT WAS A DEFINITE PROMISE FROM MR. HARRELL, THE STATE'S
ATTORNEY TO KEEP YOU FROM BURNING? 

A. HE SAID THAT HE WOULD SEE THAT I WOULD GET LIFE, BUT THAT HE WOULD
SEE THAT I DIDN'T STAY AT THE CHAIN GANG BUT THREE YEARS. 

 .         .         .         .         . 

"Q.  BAKER WHAT ABOUT THE REMARKS YOU WANTED TO MAKE? 

A. WHERE THEY KICKED ME. 

Q. THAT AT JACKSONVILLE POLICE STATION? 

A. YES, SIR. 

Q. WHO WAS THAT? 

A. MR. CARSON, THATS WHO HAD ME AT THAT TIME, HE TAKEN ME DOWN THERE
WHERE A BUNCH OF POLICE WAS SHOOTING POOL. 

Q. WHAT ALL DID THEY DO TO YOU? 

A. THOSE OFFICERS DOWN THERE ASKED HIM IF HE MADE ME TELL HIM WHAT
THEY WANTED TO KNOW, AND MR. CARSON - MR. CARSON SAID NOT YET, AND THEY
SAID, TURN HIM LOOSE WITH US ABOUT 25 MINUTES AND WE WILL MAKE HIM SAY
ANYTHING THEY WANTED ME TO SAY, AND HE TOLD THEM TO TAKE ME AND HOLD ME
UNTIL THEY WENT UP INTO THE OFFICE AND MAKE A CALL, AND WHILE HE WAS
GONE TO MAKE A CALL THEY CARRIED ME BACK INTO A ROOM AND PUT A COAT
OVER MY HEAD AND WENT TO BEATING ME, I GOT SCARS ON ME NOW, I WANT TO
SHOW THEM TO YOU AND ITS WHAT YOU CALL RISONS, YOU CAN GET YOUR DOCTOR
AND HE WILL TELL YOU WHAT WAS CAUSED FROM BLOWS - 

Q. YOU STILL HAVE SCARS ON YOU FROM THAT BEATING? 

A. YES - 

Q. WAS THOSE BEATINGS THAT CAUSED THOSE SCARS ON YOU TO TELL ON CLYDE
HYSLER? 

A. TO MAKE ME TELL ANYTHING. 

Q. DID THEY MENTION CLYDE HYSLER'S NAME TO YOU WHILE THEY WERE
BEATING YOU? 

A. YES, SIR. 

Q. DO YOU KNOW THE NAMES OF THOSE OFFICERS? 

A. NO, SIR, THOSE WERE NEW OFFICERS TO ME, THEY WERE SPEED COPS, HAD
THOSE THINGS ON THEIR SHOULDERS. 

Q. DID ANY OF THEM TELL YOU THAT CLYDE HYSLER WAS MIXED UP IN THE
KILLING OR SUCH AS THAT? 

A. THEY SAID THEY KNEW HE WAS IN IT - AND AFTER I TOLD HOW IT WAS
THEY MADE ME IMPLICATE HIM. 

Q. IMPLICATE HIM? 

A. YES, SIR. 

Q. AS A MATTER OF FACT, HYSLER WAS NOT MIXED IN IT BUT IT WAS JOE
PETERSON - 

A. THEY HAD ME HAND CUFFED BEHIND MY BACK AND I WAS CHAINED AND BEAT
ME,  ... 

     .    .         .         .         . 

"Q.  BAKER DO YOU KNOW WHETHER OR NOT MR. HARRELL KNEW IF YOU WAS
BEAT UP TO MAKE YOU TESTIFY? 

A. YES, SIR, HE KNOWS I COULDN'T SET DOWN, NONE OF THE SHERIFF'S
FORCE KNEW IT AT THE TIME, THEY KNEW IT LATER WHEN I MADE IT IN FRONT
ALL OF THE OFFICERS. 

Q. WHEN YOU MADE THAT STATEMENT YOU COULDN'T SET DOWN. 

A. YES, SIR, AND I CAN'T SET DOWN GOOD, AND I WISH YOU AND THOSE MEN
COULD SEE THAT NOW." 

III.  THE OPINION OF THE SUPREME COURT OF FLORIDA ON MOTION FOR
REHEARING:  (NO OPINION ACCOMPANIED THE ORIGINAL DENIAL OF HYSLER'S
PETITION.) 

"BUFORD, J.: 

ON MOTION FOR HEARING ON APPLICATION FOR AN ORDER FOR LEAVE TO APPLY
TO THE CIRCUIT COURT OF DUVAL COUNTY FOR A WRIT OF ERROR CORAM NOBIS TO
REVIEW THE JUDGMENT OF CONVICTION OF PETITIONER OF THE OFFENSE OF
MURDER IN THE FIRST DEGREE HERETOFORE ENTERED IN THAT COURT, ON GROUNDS
STATED IN THE PETITION, WE HAVE DENIED THE PETITION FOR REASONS AS
FOLLOWS: 

(A)  THIS COURT MAY TAKE JUDICIAL COGNIZANCE OF ITS OWN RECORDS AND
THE RECORD LODGED IN THIS COURT ON THE WRIT OF ERROR TO THE JUDGMENT OF
CONVICTION OF THE PETITIONER SHOWS AMPLE EVIDENCE TO SUPPORT THE
JUDGMENT OF CONVICTION WITHOUT THE AID OF THE TESTIMONY GIVEN ON THAT
TRIAL BY THE WITNESS JAMES BAKER. 

(B)  WRIT OF ERROR CORAM NOBIS WILL NOT LIE BECAUSE OF FALSE
TESTIMONY GIVEN AT THE TRIAL BY IMPORTANT WITNESS.  LAMB V. STATE, 91
FLA. 396, 107 SOU.  535. 

(C)  MATTERS PROPERLY PRESENTABLE FOR WRIT OF CORAM NOBIS ARE SUCH AS
WOULD HAVE PREVENTED CONVICTION AND NOT SUCH AS MAY HAVE CAUSED A
DIFFERENT RESULT.  CHESSER V. STATE, 92 FLA. 754, 109 SOU.  906. 

(D)  IF WITNESS BAKER SWORE FALSELY AT DEFENDANT'S TRIAL, THAT FACT
WAS KNOWN TO PETITIONER AT THE TIME OF THE TRIAL.  WASHINGTON V. STATE,
95 FLA. 289, 116 SOU.  470; PIKE VS. STATE, 103 FLA. 594, 139 SOU. 
196. 

(E)  THE ALLEGATIONS OF THE PETITION DO NOT SHOW THAT THE PROSECUTING
ATTORNEY HAD ANY GUILTY KNOWLEDGE OF THE ALLEGED MALTREATMENT OF THE
WITNESS, OR THAT THE ALLEGED FALSITY OF THE TESTIMONY OF THE WITNESS
BAKER WAS KNOWN TO THE PROSECUTING OFFICER. 

(F)  THE PETITION DOES NOT SHOW THAT ANY ALLEGED MALTREATMENT OF
WITNESS WAS INFLICTED BY ANY OFFICER OF THE TRIAL COURT OR THAT SAME
WAS KNOWN TO ANY OFFICER OF THE TRIAL COURT. 

(G)  THE RECORDS OF THIS COURT, OF WHICH WE TAKE JUDICIAL COGNIZANCE,
SHOW THAT PETITIONER WAS CONVICTED ON TRIAL HELD SUBSEQUENT TO THE
TRIAL AND CONFICTION OF THE WITNESS BAKER OF THE OFFENSE OF MURDER IN
THE FIRST DEGREE WITHOUT RECOMMENDATION TO MERCY, AND THAT BOTH TRIALS
WERE CONDUCTED ON BEHALF OF EACH DEFENDANT BY ABLE, DILIGENT AND
FAITHFUL COUNSEL. 

(H)  IF ALL PETITIONER ALLEGES IN HIS PETITION HAD BEEN TRUE AND HAD
BEEN FULLY MADE KNOWN TO THE TRIAL COURT AND TO THE JURY WHICH TRIED
THE DEFENDANT-PETITIONER, IT WOULD NOT HAVE PRECLUDED THE ENTRY OF THE
JUDGMENT UPON A VERDICT OF GUILTY OF MURDER IN THE FIRST DEGREE HAVING
BEEN RETURNED BY THE JURY. 

SO IT IS, THE PETITION IS INSUFFICIENT TO REQUIRE US TO GRANT SAME
AND FOR SUCH REASONS THE SAME WAS DENIED AND THE PETITION FOR REHEARING
IS LIKEWISE DENIED. 

SO ORDERED. 

TERRELL, J. THOMAS AND CHAPMAN, J. J. CONCUR. 

BROWN, C. J. DISSENTS." 

FN1  E.G., BROWN V. MISSISSIPPI, 297 U.S. 278; CHAMBERS V. FLORIDA,
309 U.S. 227. 

FN2  SEE NICKELS V. STATE, 86 FLA. 208, 98 SO. 497, 502, 99 SO. 121;
LAMB V. STATE, 91 FLA. 396, 107 SO. 535; WASHINGTON V. STATE, 92 FLA.
740, 110 SO. 259; CHAMBERS V. STATE, 111 FLA. 707, 151 SO. 499; 113
FLA. 786, 152 SO. 437; 117 FLA. 642, 158 SO. 153. 

FN3  CF. MOONEY V. HOLOHAN, SUPRA; SMITH V. O'GRADY, 312 U.S. 329. 

FN4  SEE CASES CITED IN FOOTNOTE 1, SUPRA, AND CANTY V. ALABAMA, 309
U.S. 629; WHITE V. TEXAS, 310 U.S. 530; LOMAX V. TEXAS, 313 U.S. 544;
VERNON V. ALABAMA, 313 U.S. 547. 

FN5  VILLA V. VAN SCHAICK, 299 U.S. 152; STATE TAX COMM'N V. VAN
COTT, 306 U.S. 511; MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551. 
..END :








HOTEL EMPLOYEES' LOCAL V. BOARD, 315 U.S. 437 


NO. 124.  ARGUED JANUARY 9, 12, 1942.  - DECIDED MARCH 2, 1942.  - 236
WIS. 329, 294 N.W. 632, 295 N.W. 634, AFFIRMED. 


A STATE REGULATION WHICH FORBIDS VIOLENCE ON THE PART OF STRIKERS IN
PICKETING THE PREMISES OF THEIR EMPLOYER, BUT WHICH PERMITS PEACEFUL
PICKETING, HELD CONSISTENT WITH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  P. 441. 

HOTEL & RESTAURANT EMPLOYEES' INTERNATIONAL ALLIANCE, LOCAL NO. 122,
ET AL. V. WISCONSIN EMPLOYMENT RELATIONS BOARD ET AL. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

CERTIORARI, 314 U.S. 590, TO REVIEW THE AFFIRMANCE OF A DECREE WHICH
SUSTAINED AN ORDER OF THE EMPLOYMENT RELATIONS BOARD OF WISCONSIN
ACTING UNDER THE EMPLOYMENT PEACE ACT OF THE STATE OF WISCONSIN. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THIS CASE HERE FROM THE SUPREME COURT OF WISCONSIN, 314
U.S. 590, TO CANVASS THE CLAIM THAT WISCONSIN HAS FORBIDDEN THE
PETITIONERS TO ENGAGE IN PEACEFUL PICKETING INSOFAR AS WE HAVE DEEMED
IT AN EXERCISE OF THE RIGHT OF FREE SPEECH PROTECTED BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  THORNHILL V. ALABAMA, 310 U.S. 88;
AMERICAN FEDERATION OF LABOR V. SWING, 312 U.S. 321.  THE SPECIFIC
QUESTION FOR DECISION IS THE CONSTITUTIONAL VALIDITY OF AN ORDER MADE
BY THE WISCONSIN EMPLOYMENT RELATIONS BOARD ACTING UNDER THE EMPLOYMENT
PEACE ACT, WISCONSIN LAWS OF 1939, C. 57.  IN DECIDING THIS QUESTION WE
ARE OF COURSE CONTROLLED BY THE CONSTRUCTION PLACED BY THE SUPREME
COURT OF WISCONSIN UPON THE ORDER AND THE PERTINENT PROVISIONS OF THE
ACT. 

THESE ARE THE UNDISPUTED FACTS.  IN JUNE 1938, THE PETITIONERS,
VARIOUS UNIONS REPRESENTING HOTEL AND RESTAURANT EMPLOYEES, MADE A
CLOSED SHOP AGREEMENT FOR A YEAR WITH THE RESPONDENT PLANKINTON HOUSE
COMPANY, WHICH OWNED TWO HOTELS IN MILWAUKEE.  AFTER NEGOTIATIONS
BETWEEN THE PARTIES FOR RENEWAL OF THE CONTRACT FAILED, THE DISPUTE WAS
SUBMITTED TO ARBITRATION.  ON OCTOBER 30, 1939, THE COMPANY NOTIFIED
THE UNIONS OF ITS WILLINGNESS TO SIGN A CONTRACT IN ACCORDANCE WITH THE
TERMS OF THE ARBITRATION.  THREE DAYS LATER THE EMPLOYEES OF BOTH
HOTELS WENT ON STRIKE.  MEMBERS OF THE UNIONS PICKETED THE HOTELS, AND
THE COMPANY CONTINUED TO OPERATE THE HOTELS WITH NEW EMPLOYEES.  UNION
PICKETS FORCIBLY PREVENTED THE DELIVERY OF GOODS TO ONE OF THE HOTELS. 
FOR THIS CONDUCT TWO UNION OFFICIALS WERE ARRESTED AND FINED.  ONE OF
THEM RETURNED TO THE PICKET LINE IMMEDIATELY AFTER HIS ARREST,
ASSAULTED ONE OF THE NON-STRIKING EMPLOYEES, AND WAS AGAIN ARRESTED AND
FINED.  NUMEROUS OTHER OUTBREAKS OF VIOLENCE RESULTED IN THE CONVICTION
OF THE OFFENDING PICKETS AND OCCASIONED SPECIAL POLICE MEASURES TO
MAINTAIN THE PEACE. 

THE COMPANY COMPLAINED TO THE EMPLOYMENT RELATIONS BOARD THAT THE
PETITIONERS HAD COMMITTED "UNFAIR LABOR PRACTICES."  AFTER DUE HEARING,
THE BOARD MADE FINDINGS OF FACT, NOT CHALLENGED THROUGHOUT THESE
PROCEEDINGS.  UPON THE BASIS OF THESE FINDINGS, THE BOARD ISSUED THE
ORDER SET FORTH IN THE MARGIN.  FN1 

IN ACCORDANCE WITH THE STATUTORY PROVISIONS FOR JUDICIAL REVIEW, THE
PETITIONERS APPLIED TO THE CIRCUIT COURT OF MILWAUKEE COUNTY,
WISCONSIN, TO SET ASIDE THE BOARD'S ORDER.  THE BOARD CROSS-PETITIONED
FOR ENFORCEMENT.  THE CIRCUIT COURT SUSTAINED THE ORDER, AND AN APPEAL
WAS TAKEN TO THE SUPREME COURT OF WISCONSIN, WHICH AFFIRMED THE
JUDGMENT AND, AFTER FURTHER ELUCIDATING THE MEANING OF THE STATUTE AND
THE ORDER, DENIED A REHEARING.  236 WIS. 329, 352; 294 N.W. 632, 295
N.W. 634. 

THE WISCONSIN STATUTE UNDERLYING THIS CONTROVERSY WAS ENACTED AS A
COMPREHENSIVE CODE GOVERNING THE RELATIONS BETWEEN EMPLOYERS AND
EMPLOYEES IN THE STATE.  ONLY A FEW OF ITS MANY PROVISIONS ARE RELEVANT
HERE.  SECTION 111.06 PROVIDES THAT IT SHALL BE "AN UNFAIR LABOR
PRACTICE" TO "COOPERATE IN ENGAGING IN, PROMOTING OR INDUCING
PICKETING, BOYCOTTING OR ANY OTHER OVERT CONCOMITANT OF A STRIKE UNLESS
A MAJORITY IN A COLLECTIVE BARGAINING UNIT OF THE EMPLOYEES OF AN
EMPLOYER AGAINST WHOM SUCH ACTS ARE PRIMARILY DIRECTED HAVE VOTED BY
SECRET BALLOT TO CALL A STRIKE," AND TO "HINDER OR PREVENT, BY MASS
PICKETING, THREATS, INTIMIDATION, FORCE OR COERCION OF ANY KIND THE
PURSUIT OF ANY LAWFUL WORK OR EMPLOYMENT, OR TO OBSTRUCT OR INTERFERE
WITH ENTRANCE TO OR EGRESS FROM ANY PLACE OF EMPLOYMENT, OR TO OBSTRUCT
OR INTERFERE WITH FREE AND UNINTERRUPTED USE OF PUBLIC ROADS, STREETS,
HIGHWAYS, RAILWAYS, AIRPORTS, OR OTHER WAYS OF TRAVEL OR CONVEYANCE." 
THE ACT CONTAINS A PROVISION EXPRESSLY DEALING WITH ITS CONSTRUCTION:
"EXCEPT AS SPECIFICALLY PROVIDED IN THIS CHAPTER, NOTHING THEREIN SHALL
BE CONSTRUED SO AS TO INTERFERE WITH OR IMPEDE OR DIMINISH IN ANY WAY
THE RIGHT TO STRIKE OR THE RIGHT OF INDIVIDUALS TO WORK; NOR SHALL
ANYTHING IN THIS CHAPTER BE SO CONSTRUED AS TO INVADE UNLAWFULLY THE
RIGHT TO FREEDOM OF SPEECH."  SEC. 111.15. 

THE CENTRAL ATTACK AGAINST THE ORDER IS THAT, AS ENFORCED BY THE
WISCONSIN COURTS, IT ENJOINS PEACEFUL PICKETING.  WHETHER WISCONSIN HAS
DENIED THE PETITIONERS ANY RIGHTS UNDER THE FEDERAL CONSTITUTION IS OUR
ULTIMATE RESPONSIBILITY.  BUT PRECISELY WHAT RESTRAINTS WISCONSIN HAS
IMPOSED UPON THE PETITIONERS IS FOR THE WISCONSIN SUPREME COURT TO
DETERMINE.  IN ITS OPINION IN THIS CASE, AND MORE PARTICULARLY IN ITS
EXPLANATORY OPINION DENYING A REHEARING, THE COURT CONSTRUED THE
RELEVANT PROVISIONS OF THE EMPLOYMENT PEACE ACT AND CONFINED THE SCOPE
OF THE CHALLENGED ORDER TO THE LIMITS OF THE CONSTRUCTION WHICH IT GAVE
THEM.  THAT COURT HAS OF COURSE THE FINAL SAY CONCERNING THE MEANING OF
A WISCONSIN LAW AND THE SCOPE OF ADMINISTRATIVE ORDERS MADE UNDER IT.
AIKENS V. WISCONSIN, 195 U.S. 194; SENN V. TILE LAYERS UNION, 301 U.S.
468.  WHAT IS BEFORE US, THEREFORE, IS NOT THE ORDER AS AN ISOLATED,
SELF-CONTAINED WRITING BUT THE ORDER WITH THE GLOSS OF THE SUPREME
COURT OF WISCONSIN UPON IT.  AND THAT COURT HAS UNAMBIGUOUSLY REJECTED
THE CONSTRUCTION UPON WHICH THE CLAIM OF THE PETITIONERS RESTS. 

THAT THE ORDER FORBIDS ONLY VIOLENCE, AND THAT IT PERMITS PEACEFUL
PICKETING BY THESE PETITIONERS, IS MADE ABUNDANTLY CLEAR BY THE
EXPRESSIONS OF THE COURT: 

"THE ACT DOES NOT LIMIT THE RIGHT OF AN EMPLOYEE TO SPEAK FREELY. 
...  THE TERM 'PICKETING', AS USED IN (THE ACT), DOES NOT INCLUDE ACTS
HELD IN THE THORNHILL CASE, SUPRA, TO BE WITHIN THE PROTECTION OF THE
CONSTITUTIONAL GUARANTY OF THE RIGHT OF FREE SPEECH.  THE EXPRESS
LANGUAGE OF THE ACT FORBIDS SUCH A CONSTRUCTION.  IT CLEARLY REFERS TO
THAT KIND OF PICKETING WHICH THE THORNHILL CASE SAYS THE STATE HAS
POWER TO DEAL WITH 'AS A PART OF ITS POWER TO PRESERVE THE PEACE, AND
PROTECT THE PRIVACY, THE LIVES AND THE PROPERTY OF ITS RESIDENTS'.  ...
IN THIS CASE IT IS UNDISPUTED THAT NUMEROUS ASSAULTS WERE COMMITTED BY
THE PICKETS, THAT THE PICKETS ACTED IN CONCERT; THAT THE FINES OF THESE
PICKETS WERE PAID BY THE UNIONS; THAT INGRESS AND EGRESS TO AND FROM
THE PREMISES OF THE EMPLOYER WERE PREVENTED BY FORCE AND ARMS.  IT WAS
AT CONDUCT OF THAT KIND THAT THE STATUTE WAS AIMED.  IT IS CONDUCT OF
THAT KIND THAT IS DEALT WITH IN THIS CASE.  IT IS CONDUCT OF THAT KIND
THAT IS DECLARED TO BE AN UNFAIR LABOR PRACTICE BY THE STATUTE AND FROM
WHICH THE DEFENDANTS ARE ORDERED TO CEASE AND DESIST.  ...  "  AND ON
REHEARING:  "UNDER THE STATUTE AND THE ORDER OF THE BOARD AS
INTERPRETED AND CONSTRUED BY THE EXPLICIT LANGUAGE OF THE (PREVIOUS)
OPINION, FREEDOM OF SPEECH AND THE RIGHT PEACEFULLY TO PICKET IS IN NO
WAY INTERFERED WITH.  THE APPELLANTS COULD NOT BE ORDERED TO CEASE AND
DESIST FROM SOMETHING THEY WERE NOT ENGAGED IN.  ...  THE PICKETING
CARRIED ON IN THIS CASE WAS NOT PEACEFUL AND THE RIGHT OF FREE SPEECH
IS IN NO WAY INFRINGED BY THE STATUTE OR THE ORDER OF THE BOARD."  236
WIS. 329, PASSIM. 

WHAT PUBLIC POLICY WISCONSIN SHOULD ADOPT IN FURTHERING DESIRABLE
INDUSTRIAL RELATIONS IS FOR IT TO SAY, SO LONG AS RIGHTS GUARANTEED BY
THE CONSTITUTION ARE RESPECTED.  AIKENS V. WISCONSIN, 195 U.S. 194;
SENN V. TILE LAYERS UNION, 301 U.S. 468.  AS THE ORDER AND THE
APPROPRIATE PROVISIONS OF THE STATUTE UPON WHICH IT WAS BASED LEAVE THE
PETITIONERS' FREEDOM OF SPEECH UNIMPAIRED, THE JUDGMENT BELOW MUST BE
AFFIRMED.  PROBLEMS THAT WOULD ARISE HAD THE ORDER AND THE PERTINENT
PROVISIONS OF THE ACT BEEN OTHERWISE CONSTRUED BY THE SUPREME COURT OF
WISCONSIN NEED NOT THEREFORE BE CONSIDERED.  AFFIRMED. 

FN1  "IT IS ORDERED THAT THE RESPONDENT UNIONS, HOTEL AND RESTAURANT
EMPLOYEES INTERNATIONAL ALLIANCE, LOCAL NO. 122, INTERNATIONAL LAUNDRY
WORKERS, LOCAL NO. 174, BARTENDERS INTERNATIONAL LEAGUE OF AMERICA,
LOCAL NO. 64, INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO.
311, AND THE MILWAUKEE BUILDING TRADES COUNCIL, THE OFFICERS, MEMBERS,
AGENTS, SUCCESSORS AND ASSIGNS OF EACH SHALL: 

"1.  IMMEDIATELY CEASE AND DESIST FROM: 

(A)  ENGAGING IN PROMOTING OR INDUCING PICKETING AT OR NEAR THE
PLANKINTON HOUSE OR THE KILBOURN HOTEL; 

(B)  ATTEMPTING TO HINDER OR PREVENT BY THREATS, INTIMIDATION, FORCE
OR COERCION OF ANY KIND THE PURSUIT OF LAWFUL WORK BY EMPLOYES OF THE
PLANKINTON HOUSE COMPANY; 

(C)  BOYCOTTING IN ANY WAY THE PLANKINTON HOUSE COMPANY. 

"2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION, WHICH THE BOARD FINDS
WILL EFFECTUATE THE POLICIES OF THE ACT: 

(A)  POST NOTICES TO THEIR MEMBERS IN CONSPICUOUS PLACES AT THE UNION
HEADQUARTERS THAT THE UNION HAS CEASED AND DESISTED IN THE MANNER
AFORESAID, AND THAT ALL OFFICERS, MEMBERS AND AGENTS OF THE UNION ARE
TO REFRAIN FROM ENGAGING IN PROMOTING OR INDUCING PICKETING AND
BOYCOTTING OF THE PLANKINTON HOUSE COMPANY, AND ALSO TO REFRAIN FROM
ATTEMPTING TO HINDER OR PREVENT BY THREATS, INTIMIDATION, FORCE OR
COERCION OF ANY KIND THE PURSUIT OF LAWFUL WORK BY EMPLOYES OF THE
PLANKINTON HOUSE COMPANY. 

(B)  NOTIFY THE BOARD IN WRITING FORTHWITH THAT STEPS HAVE BEEN TAKEN
BY EACH OF THE RESPONDENT UNIONS TO COMPLY HEREWITH." 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




THOMSON V. GASKILL, 315 U.S. 442 


NO. 139.  ARGUED JANUARY 7, 8, 1942.  - DECIDED MARCH 2, 1942.  - 119
F.2D 105, REVERSED. 


1.  THE POLICY OF JUD.  CODE SEC. 24(1), CONFERRING JURISDICTION BY
DIVERSITY OF CITIZENSHIP, CALLS FOR STRICT CONSTRUCTION OF THE
STATUTE.  IF A PLAINTIFF'S ALLEGATIONS OF JURISDICTIONAL FACTS ARE
CHALLENGED BY THE DEFENDANT, THE PLAINTIFF MUST SUPPORT THEM BY
COMPETENT PROOF, OR THE BILL MUST BE DISMISSED.  P. 446. 

2.  OWING TO THE ABSENCE FROM THE RECORD OF AGREEMENTS UPON WHICH
THIS SUIT WAS FOUNDED, IT CAN NOT BE DETERMINED WHETHER THE NATURE OF
THE PLAINTIFFS' CLAIMS IS SUCH THAT THEY MAY BE AGGREGATED IN
DETERMINING THE JURISDICTIONAL AMOUNT.  P. 446. 

3.  IN COMPUTING JURISDICTIONAL AMOUNTS, CLAIMS OF PLAINTIFFS CAN NOT
BE AGGREGATED MERELY BECAUSE THEY ARE DERIVED FROM A SINGLE INSTRUMENT,
OR BECAUSE THE PLAINTIFFS HAVE A COMMUNITY OF INTERESTS.  P. 447. 

4.  THE VALUE OF THE "MATTER IN CONTROVERSY," IN A SUIT BASED ON
DIVERSITY OF CITIZENSHIP, IS MEASURED, NOT BY THE MONETARY RESULT OF
DETERMINING THE PRINCIPLE INVOLVED, BUT BY ITS PECUNIARY CONSEQUENCE TO
THOSE INVOLVED IN THE LITIGATION.  P. 447. 

THOMSON, TRUSTEE OF CHICAGO & NORTHWESTERN RAILWAY CO., ET AL. V.
GASKILL ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 314 U.S. 590, TO REVIEW A DECREE REVERSING A DECREE OF
THE DISTRICT COURT WHICH DISMISSED FOR WANT OF JURISDICTION A SUIT BY
NUMEROUS CONDUCTORS AND BRAKEMEN AGAINST THE ABOVE-NAMED RAILWAY
COMPANY, ITS TRUSTEE IN REORGANIZATION PROCEEDINGS, AND OTHERS.  THE
PLAINTIFFS CLAIMED SENIORITY RIGHTS TO WORK ON CERTAIN RAILROAD RUNS,
ARISING UNDER AGREEMENTS BETWEEN THE RAILWAY AND TWO RAILWAY
BROTHERHOODS.  THE BILL SOUGHT AN ACCOUNTING TO SHOW THE LOSS TO EACH
PLAINTIFF FROM FAILURE TO OBSERVE THESE RIGHTS, AND DAMAGES FOR EACH
ACCORDINGLY, IN THE ORDER OF HIS SENIORITY, AND PRAYED FOR FUTURE
ENFORCEMENT OF THE AGREEMENTS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE RECORD SHOWS AN ESSENTIAL
REQUISITE OF THE JURISDICTION OF THE DISTRICT COURT, NAMELY, THAT THE
"MATTER IN CONTROVERSY EXCEEDS, EXCLUSIVE OF INTEREST AND COSTS, THE
SUM OR VALUE OF $3,000."  JUDICIAL CODE, SEC. 24(1), 28 U.S.C. SEC.
41(1).  THERE WERE OTHER QUESTIONS WHICH, IN THE VIEW WE TAKE OF THE
CASE, NEED NOT BE STATED. 

RESPONDENTS, FORTY-ONE CONDUCTORS AND BRAKEMEN EMPLOYED BY THE
CHICAGO & NORTHWESTERN RAILWAY COMPANY, BROUGHT SUIT AGAINST THE
RAILROAD AND ONE KIMBALL, AN EMPLOYEE OF THE ROAD, IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF NEBRASKA.  THE COMPLAINT ALLEGED
THAT THE PLAINTIFFS "BELONG TO" THE TRACKAGE OF THE RAILROAD CALLED THE
NEBRASKA DIVISION; THAT "THE CONTROVERSY ARISES OVER THE DIVISION OF
SENIORITY RIGHTS BETWEEN THE NEBRASKA DIVISION TO WHICH PLAINTIFFS
BELONG, AND THE SIOUX CITY DIVISION TO WHICH THE DEFENDANT GEORGE
KIMBALL BELONGS, OVER THE NORTHWESTERN ROAD FROM OMAHA, NEBRASKA TO
SIOUX CITY, IOWA"; THAT TRAINS RUNNING BETWEEN THESE POINTS MOVED OVER
31 MILES OF THE NEBRASKA DIVISION AND 70 MILES OF THE SIOUX CITY
DIVISION; THAT PRIOR TO MAY 1, 1930, SENIORITY RIGHTS OF THE PLAINTIFFS
WERE GOVERNED BY CERTAIN CONTRACTS "REFERRED TO SOMETIMES AS THE
'SCHEDULE OF WAGES AND RULES OF COMPENSATION FOR CONDUCTORS AND
TRAINMEN,'" WHICH PROVIDED THAT, WHEN TRAINS WERE OPERATED OVER MORE
THAN ONE SENIORITY DISTRICT, THE "PERCENTAGE OF MILES RUN OVER EACH
DIVISION WILL GOVERN IN ASSIGNMENT TO SUCH RUNS"; THAT SINCE MAY 1,
1930, THE RAILROAD HAS ASSIGNED ALL OF THE WORK ON THE OMAHA-SIOUX CITY
RUN TO THE SIOUX CITY DIVISION; THAT, ALTHOUGH THE RAILROAD INSISTS
THAT THE PLAINTIFFS' SENIORITY RIGHTS HAVE BEEN ABROGATED "BY AN
ALLEGED AGREEMENT BETWEEN THE SAID DEFENDANT RAILROAD TRAINMEN, AND THE
ORDER OF RAILWAY CONDUCTORS," THE PLAINTIFFS ARE NOT BOUND BY SUCH
AGREEMENT; AND THAT, ON ACCOUNT OF THE "WRONGFUL DEPRIVATION" OF THEIR
SENIORITY RIGHTS, THE PLAINTIFFS HAVE BEEN DAMAGED IN EXCESS OF
$3,000. 

THE RAILROAD'S ANSWER STATED THAT THE PLAINTIFFS HAD ONLY SUCH
SENIORITY RIGHTS AS WERE DERIVED FROM AGREEMENTS BETWEEN THE RAILROAD
AND THE ORDER OF RAILROAD CONDUCTORS AND THE BROTHERHOOD OF RAILROAD
TRAINMEN; THAT THE AGREEMENTS COULD BE ABROGATED OR MODIFIED BY THE
RAILROAD AND THE UNIONS WITHOUT THE CONSENT OF THE PLAINTIFFS; THAT THE
TRACK BETWEEN OMAHA AND BLAIR, LOCATED ON THE OMAHA-SIOUX CITY RUN, WAS
NOT PART OF THE NEBRASKA DIVISION OF THE RAILROAD; THAT THIS TRACKAGE
IS OWNED BY THE CHICAGO, ST. P., M. & O. RAILWAY COMPANY; THAT THE ONLY
PART OF THE NEBRASKA DIVISION ON THE RUN BETWEEN OMAHA AND SIOUX CITY
IS 7.5 MILES LONG; AND THAT THE COMPLAINT DID NOT SHOW THE EXISTENCE OF
THE REQUIRED JURISDICTIONAL AMOUNT.  THE DISTRICT COURT ORDERED THE
PLAINTIFFS TO PROVE THAT MORE THAN $3,000 WAS INVOLVED, AND TEN OF THEM
SUBMITTED AFFIDAVITS.  THE SUBSTANCE OF EACH AFFIDAVIT WAS THAT, SINCE
MAY 1, 1930, THE CHICAGO & NORTHWESTERN HAD "OPERATED TRAINS OVER
THIRTY-ONE MILES OF THE NEBRASKA DIVISION IN VIOLATION OF EXISTING
CONTRACTS," AND THAT, "TO THE BEST OF (AFFIANT'S) KNOWLEDGE AND
ABILITY," HIS LOSS EXCEEDED $3,000.  THE DEFENDANTS SUBMITTED
AFFIDAVITS SUPPORTING THE ALLEGATIONS OF THEIR ANSWERS.  BUT NEITHER
THE PLEADINGS NOR THE AFFIDAVITS OF THE PARTIES CONTAIN THE TERMS OF
THE VARIOUS AGREEMENTS REFERRED TO IN THE COMPLAINT AND UPON WHICH THE
PLAINTIFFS' ACTION IS BASED. 

UPON THE DEFENDANTS' MOTION TO DISMISS THE CAUSE FOR WANT OF
JURISDICTION, THE DISTRICT COURT HELD THAT THE PLEADINGS AND SUPPORTING
AFFIDAVITS ESTABLISHED THAT "THE AMOUNT IN CONTROVERSY AS TO ANY ONE
PLAINTIFF DOES NOT AMOUNT TO AS MUCH AS $3,000," AND THAT THE NATURE OF
THE SUIT WAS NOT SUCH AS TO PERMIT AGGREGATION OF THE CLAIMS OF ALL THE
PLAINTIFFS.  ACCORDINGLY, THE ACTION WAS DISMISSED.  THE FIRST
CONCLUSION OF THE DISTRICT COURT WAS NOT CHALLENGED EITHER IN THE
CIRCUIT COURT OF APPEALS OR BEFORE US.  THE PLAINTIFFS CONTENDED THAT
THEIR CLAIMS SHOULD BE AGGREGATED BECAUSE "THE RIGHTS OF THE PLAINTIFFS
ARE SO INTERLOCKED AND INTERWOVEN THAT THE RIGHTS OF ONE CANNOT BE
DETERMINED WITHOUT THE OTHERS BEING PARTIES THERETO."  THE CIRCUIT
COURT OF APPEALS REVERSED THE DISMISSAL, HOLDING THAT THE PLAINTIFFS'
CLAIMS COULD BE AGGREGATED FOR PURPOSES OF DETERMINING THE VALUE OF THE
MATTER IN CONTROVERSY.  THE COURT STATED THAT, ALTHOUGH IT FOUND THE
COMPLAINT "VERY DIFFICULT OF ANALYSIS," IT HAD CONSTRUED IT "MOST
FAVORABLY TO THE PLEADER, FOR THE PURPOSE OF PASSING ON THE SOLE
QUESTION OF JURISDICTION RAISED ON THE APPEAL."  119 F.2D 105, 108.  WE
BROUGHT THE CASE HERE, 314 U.S. 590, IN VIEW OF THE IMPORTANT QUESTION
AFFECTING THE JURISDICTION OF THE DISTRICT COURTS. 

THE POLICY OF THE STATUTE CONFERRING DIVERSITY JURISDICTION UPON THE
DISTRICT COURTS CALLS FOR ITS STRICT CONSTRUCTION.  HEALY V. RATTA, 292
U.S. 263, 270; AND SEE ELGIN V. MARSHALL, 106 U.S. 578, 580. 
ACCORDINGLY, IF A PLAINTIFF'S ALLEGATIONS OF JURISDICTIONAL FACTS ARE
CHALLENGED BY THE DEFENDANT, THE PLAINTIFF BEARS THE BURDEN OF
SUPPORTING THE ALLEGATIONS BY COMPETENT PROOF.  MCNUTT V. GENERAL
MOTORS ACCEPTANCE CORP., 298 U.S. 178, 188-89; KVOS, INC. V. ASSOCIATED
PRESS, 299 U.S. 269, 278; GIBBS V. BUCK, 307 U.S. 66, 72.  THE BILL
MUST BE DISMISSED IF THE EVIDENCE IN THE RECORD DOES NOT SUPPORT THE
ALLEGATIONS AS TO JURISDICTIONAL AMOUNT.  AND OUR REVIEW OF THE
DISTRICT COURT'S DETERMINATION OF THE JURISDICTIONAL AMOUNT MUST BE
CONFINED TO THIS RECORD.  HENNEFORD V. NORTHERN PACIFIC RY. CO., 303
U.S. 17, 19; CLARK V. PAUL GRAY, INC., 306 U.S. 583, 589-90. 

SINCE THE RECORD DOES NOT CONTAIN THE VARIOUS AGREEMENTS UPON WHICH
THE PLAINTIFFS' ACTION IS FOUNDED, THERE IS NO BASIS FOR DETERMINING
WHETHER THIS IS A SUIT "IN WHICH SEVERAL PLAINTIFFS, HAVING A COMMON
UNDIVIDED INTEREST, UNITE TO ENFORCE A SINGLE TITLE OR RIGHT, AND IN
WHICH IT IS ENOUGH THAT THEIR INTERESTS COLLECTIVELY EQUAL THE
JURISDICTIONAL AMOUNT," LION BONDING CO. V. KARATZ, 262 U.S. 77, 86;
SEE SHIELDS V. THOMAS, 17 HOW.  3, 5; TROY BANK V. WHITEHEAD & CO., 222
U.S. 39, 40-41; GIBBS V. BUCK, 307 U.S. 66, 74-75, OR ONE IN WHICH "THE
MATTERS IN DISPUTE ARE SEPARATE AND DISTINCT, AND ARE JOINED IN ONE
SUIT FOR CONVENIENCE OR ECONOMY," DAVIS V. SCHWARTZ, 155 U.S. 631, 647;
SEE CLAY V. FIELD, 138 U.S. 464, 479-80; RUSSELL V. STANSELL, 105 U.S.
303.  AGGREGATION OF PLAINTIFFS' CLAIM CANNOT BE MADE MERELY BECAUSE
THE CLAIMS ARE DERIVED FROM A SINGLE INSTRUMENT, PINEL V. PINEL, 240
U.S. 594, OR BECAUSE THE PLAINTIFFS HAVE A COMMUNITY OF INTEREST, CLARK
V. PAUL GRAY, INC., 306 U.S. 583.  IN A DIVERSITY LITIGATION THE VALUE
OF THE "MATTER IN CONTROVERSY" IS MEASURED NOT BY THE MONETARY RESULT
OF DETERMINING THE PRINCIPLE INVOLVED, BUT BY ITS PECUNIARY CONSEQUENCE
TO THOSE INVOLVED IN THE LITIGATION.  WHELESS V. ST. LOUIS, 180 U.S.
379, 382; OLIVER V. ALEXANDER, 6 PET. 143, 147. 

THE RECORD CONTAINS NO SHOWING OF THE REQUISITE JURISDICTIONAL
AMOUNT, AND THE DISTRICT COURT WAS THEREFORE WITHOUT JURISDICTION.  THE
JUDGMENT WILL BE REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT
WITHOUT PREJUDICE TO AN APPLICATION FOR LEAVE TO AMEND THE BILL OF
COMPLAINT.  REVERSED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :























D'OENCH, DUHME & CO. V. F.D.I.C., 315 U.S. 447 


NO. 206.  ARGUED JANUARY 9, 1942.  - DECIDED MARCH 2, 1942.  - 117 F.2D
491, AFFIRMED. 


1.  JURISDICTION OF THE DISTRICT COURT OF AN ACTION BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION TO COLLECT A NOTE, PART OF THE ASSETS
ACQUIRED BY THE CORPORATION AS COLLATERAL SECURING A LOAN MADE BY IT TO
A STATE BANK, IS BASED UPON THE FACT THAT THE PLAINTIFF IS A FEDERAL
CORPORATION SUING UNDER AN ACT OF CONGRESS AUTHORIZING IT TO SUE AND BE
SUED "IN ANY COURT OF LAW OR EQUITY, STATE OR FEDERAL," AND PROVIDING
THAT "ALL SUITS OF A CIVIL NATURE AT COMMON LAW OR IN EQUITY TO WHICH
THE CORPORATION SHALL BE A PARTY SHALL BE DEEMED TO ARISE UNDER THE
LAWS OF THE UNITED STATES."  FEDERAL RESERVE ACT, SEC. 12B.  P. 455. 

2.  WHETHER THE DOCTRINE OF KLAXON CO. V. STENTOR ELECTRIC MFG. CO.,
313 U.S. 487, REQUIRING A FEDERAL DISTRICT COURT TO FOLLOW THE CONFLICT
OF-LAW RULES OF THE STATE IN WHICH IT SITS, IS APPLICABLE WHERE FEDERAL
JURISDICTION IS NOT BASED ON DIVERSITY OF CITIZENSHIP, NEED NOT BE
DECIDED WHERE THE ISSUE IS A FEDERAL QUESTION.  P. 456. 

3.  IN VIEW OF THE FEDERAL POLICY EVINCED BY THE FEDERAL RESERVE ACT,
SEC. 12B (S) AND FORMER SUBDIVISION (Y), TO PROTECT THE FEDERAL DEPOSIT
INSURANCE CORPORATION AND THE PUBLIC FUNDS WHICH IT ADMINISTERS AGAINST
MISREPRESENTATIONS OF THE ASSETS OF BANKS WHICH IT INSURES OR TO WHICH
IT MAKES LOANS, THE MAKER OF A NOTE WHICH WAS PART OF THE ASSETS OF A
STATE BANK WHEN THE CORPORATION INSURED IT AND WAS ACQUIRED LATER BY
THE CORPORATION AS PART OF THE COLLATERAL FURNISHED BY THE BANK FOR A
SUBSEQUENT LOAN, IS ESTOPPED TO DEFEND AGAINST THE CORPORATION UPON THE
GROUND THAT THE NOTE WAS ACCOMMODATION PAPER, GIVEN WITHOUT
CONSIDERATION AND UPON AN UNDERSTANDING THAT IT WOULD NOT BE COLLECTED,
IN ORDER TO ENABLE THE BANK TO CARRY IT AS A REAL ASSET IN LIEU OF
DEFAULTED PAPER AND THEREBY DECEIVE THE PUBLIC EXAMINERS.  PP. 459,
461. 

4.  ALTHOUGH THE MAKER OF THE NOTE HERE INVOLVED DID NOT KNOW THAT IT
WAS TO BE USED TO DECEIVE THE FEDERAL DEPOSIT INSURANCE CORPORATION,
WHICH HAD NOT THEN BEEN CREATED, YET THE PERMISSION WHICH THE MAKER
GAVE THE BANK TO CARRY THE NOTE AS A REAL ASSET WAS A CONTINUING ONE
AND HAD NOT BEEN REVOKED WHEN THE CORPORATION ACQUIRED THE PAPER; AND
THAT PERMISSION MUST BE PRESUMED TO HAVE INCLUDED AUTHORITY FROM THE
MAKER TO TREAT THE NOTE AS GENUINE FOR THE PURPOSES OF EXAMINATION BY
PUBLIC AUTHORITIES AS WELL AS FOR GENERAL BANKING ACTIVITIES.  P. 459. 

5.  INASMUCH AS THE FEDERAL DEPOSIT INSURANCE CORPORATION WAS
AUTHORIZED TO INSURE A STATE BANK ONLY ON A CERTIFICATE FROM STATE
AUTHORITY THAT THE BANK WAS SOLVENT, IT IS PRESUMED THAT IN THIS CASE
SUCH CERTIFICATE WAS GIVEN.  P. 460. 

6.  THE INABILITY OF THE ACCOMMODATION MAKER TO PLEAD THE DEFENSE OF
NO CONSIDERATION DOES NOT DEPEND UPON THE COMMISSION OF A PENAL OFFENSE
IN VIOLATION OF SEC. 12B (S) OF THE FEDERAL RESERVE ACT, BUT UPON
WHETHER THE NOTE WAS DESIGNED TO DECEIVE THE CREDITORS OR THE PUBLIC
EXAMINING AUTHORITY, OR WOULD TEND TO HAVE THAT EFFECT.  P. 460. 

7.  THE FACT THAT THE NOTE WAS CHARGED OFF BY THE BANK AFTER THE BANK
HAD BEEN INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION AND
BEFORE THE LATTER HAD ACQUIRED THE NOTE UNDER THE LOAN, IS IMMATERIAL,
SINCE A NOTE MAY BE NONETHELESS AN ASSET THOUGH IT IS CHARGED OFF, AND
THE SUIT HERE IS TO PROTECT THE RIGHTS OF THE CORPORATION AS INSURER. 
THE RIGHT TO RECOVER ON THE NOTE IS NOT DEPENDENT UPON PROOF OF LOSS OR
DAMAGE CAUSED BY THE FRAUDULENT PRACTICE.  P. 460. 

D'OENCH, DUHME & CO., INC. V. FEDERAL DEPOSIT INSURANCE CORPORATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 314 U.S. 592, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
HOLDING THE PRESENT PETITIONER LIABLE TO THE RESPONDENT ON A PROMISSORY
NOTE. 

THE RENEWAL NOTE SUED ON SHOWS ON ITS FACE THAT IT WASN'T A
NEGOTIABLE INSTRUMENT.  IT IS AGAINST THE PUBLIC POLICY OF MISSOURI TO
HOLD A CITIZEN OF MISSOURI LIABLE ON AN ACCOMMODATION NOTE UNDER THE
FACTS IN THIS CASE, PARTICULARLY SO AS THERE WAS A SPECIFIC AGREEMENT
NOT TO SUE WHICH CONSTITUTES A COMPLETE DEFENSE UNDER THE LAW OF THE
FORUM.  TRAUTMAN V. SCHROEDER, 230 MO. APP. 985; WILLIAMS V. KESSLER,
295 S.W. 482; PEOPLES BANK V. RANKIN, 220 MO. APP. 205. 

UNDER THE MISSOURI RULE OF CONFLICT OF LAWS THE RENEWAL NOTE SUED ON
WOULD BE CONSTRUED TO BE A MISSOURI CONTRACT AND SUBJECT TO ALL OF THE
DEFENSES URGED BY PETITIONER.  SEE HANSEN V. DUVALL, 62 S.W.2D 732,
738; FEDERAL CHEMICAL CO. V. HITT, 155 S.W.2D 897, 902. 

EVEN IF THE NOTE HAD BEEN DELIVERED IN ILLINOIS, WHICH WAS NOT SHOWN,
IT WOULD HAVE STILL REMAINED A MISSOURI CONTRACT.  SMOOT V. JUDD, 161
MO. 673. 

R.S. MO. 1929, SEC. 806, CITED BY RESPONDENT, IS SIMPLY A RULE OF
EVIDENCE DISPENSING WITH PROOF OF A FOREIGN LAW ONLY IF IT IS PLEADED. 
CLEARLY IT IS NOT A RULE OF PLEADING. 

THE ACTS CLAIMED TO CONSTITUTE ESTOPPEL OCCURRED BEFORE THE FEDERAL
ACT WAS PASSED AND BEFORE THE BEGINNING OF THE CORPORATE EXISTENCE OF
THE RESPONDENT.  FURTHERMORE, THE BANK REMAINED SOLVENT FOR MORE THAN
FIVE YEARS AFTER THE NOTE SUED ON WAS GIVEN AND FOR MORE THAN THREE
YEARS AFTER IT WAS CHARGED OFF BY THE BANK.  THE NOTE SHOWED ON ITS
FACE THAT IT WAS NONNEGOTIABLE, AND AT THE TIME THE BANK CLOSED WAS IN
DEFAULT OF TEN SEMI-ANNUAL INTEREST PAYMENTS AND IN DEFAULT AS TO
PRINCIPAL.  THIS, UNDER MISSOURI LAW, CHARGED RESPONDENT WITH NOTICE OF
DEFENSES.  FURTHERMORE, ALTHOUGH IT WAS EXECUTED BY A DULY LICENSED
BROKERAGE HOUSE, A MEMBER OF THE ST. LOUIS STOCK EXCHANGE, THE BANK,
THREE YEARS PRIOR TO ITS FAILURE AND WHILE STILL SOLVENT, HAD CHARGED
THE NOTE OFF (ALTHOUGH IT WAS APPARENTLY A GOOD AND COLLECTIBLE NOTE
UNLESS IT WAS SUBJECT TO SOME DEFENSE). 

RESPONDENT WAS NOT DAMAGED.  THE ASSERTED ESTOPPEL IS WHOLLY WITHOUT
SUBSTANCE. 

DETERMINATION OF THE PLACE OF CONTRACT BY GENERAL LAW RATHER THAN THE
LAW OF MISSOURI, THE FORUM STATE, WAS CLEARLY ERRONEOUS.  KLAXON CO. V.
STENTOR ELECTRIC MFG. CO., 313 U.S. 487; GRIFFIN V. MCCOACH, 313 U.S.
498. 

JURISDICTION IN THIS CASE IS GOVERNED BY U.S.C., TIT. 12, SEC.
264(J)(FOURTH), WHICH PERMITS THE PLAINTIFF CORPORATION TO SUE OR BE
SUED IN ANY STATE OR FEDERAL COURT. 

THE SPIRIT OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64, AND SUBSEQUENT
CASES, CALLS FOR A UNIFORMITY OF DECISION SO AS NOT TO "DISTURB EQUAL
ADMINISTRATION OF JUSTICE IN COORDINATE STATE AND FEDERAL COURTS
SITTING SIDE BY SIDE." 

THE FUNDAMENTAL PRINCIPLE OF THE ERIE CASE IS THAT THE FEDERAL COURTS
DO NOT HAVE THE POWER TO DECLARE RULES OF DECISION IN THE BROAD FIELD
OF GENERAL LAW. 

CF. KUHN V. FAIRMONT COAL CO., 215 U.S. 349. 

IT IS UNIMPORTANT WHETHER JURISDICTION IN THE FEDERAL COURT IS
INVOKED BY REASON OF DIVERSITY OF CITIZENSHIP OR ON SOME OTHER BASIS
GIVING THE STATE AND FEDERAL COURTS COORDINATE JURISDICTION.  CF.
MISHAWAKA RUBBER & WOOLEN MFG. CO. V. S.S. KRESGE CO., 119 F.2D 316. 

IT HAS LONG BEEN THE SUBSTANTIVE LAW IN MISSOURI THAT THE COURTS OF
THAT STATE WILL NOT TAKE JUDICIAL NOTICE OF THE LAW OF ANY FOREIGN
STATE; THAT SUCH LAW MUST BE PLEADED AND PROVED IF A PARTY EXPECTS TO
RELY THEREON, AND THAT A FOREIGN LAW WHICH HAS NOT BEEN PLEADED OR
PROVED WILL BE PRESUMED TO BE THE SAME AS THE LAW OF MISSOURI.  SEE
ROSITZKY V. ROSITZKY, 329 MO. 662; MADDEN V. RAILROAD, 192 S.W. 455,
456; KINSLEY BANK V. WOODS, 61 S.W.2D 384; GORDON V. ANDREWS, 2 S.W.2D
809. 

IF THIS CASE HAD BEEN TRIED IN THE STATE COURT IN MISSOURI, EVEN IF
THE MISSOURI COURT HAD REACHED THE CONCLUSION UNDER THE MISSOURI LAW
THAT THIS WAS AN ILLINOIS CONTRACT GOVERNED BY THE LAWS OF ILLINOIS,
THE MISSOURI COURT WOULD HAVE ASCERTAINED THE ILLINOIS LAW, NOT FROM
THE ILLINOIS DECISIONS AS THE COURT BELOW DID, BUT FROM THE MISSOURI
DECISIONS, FOR THE REASON THAT THE ILLINOIS LAW NOT HAVING BEEN PLEADED
OR PROVED WOULD BE PRESUMED TO BE THE SAME AS THE MISSOURI LAW.  IT
SEEMS SELF-EVIDENT THAT IN THIS CASE THE DOCTRINE OF THE ERIE CASE WAS
NOT PROPERLY APPLIED.  WEST V. AMERICAN TELEPHONE & TELEGRAPH CO., 312
U.S. 223, AND FIDELITY UNION TRUST CO. V. FIELD, 312 U.S. 169. 

THIS COURT, PRIOR TO THE DECISION IN THE ERIE CASE, UNIFORMLY APPLIED
THE VERY RULE FOR WHICH WE ARE CONTENDING TO CASES WHICH CAME HERE ON
WRIT OF ERROR OR CERTIORARI FROM A STATE COURT (SEE HANLEY V. DONOGHUE,
116 U.S. 1; RENAUD V. ABBOTT, 116 U.S. 277), ALTHOUGH IT DID NOT APPLY
THE RULE IN CASES COMING UP THROUGH THE FEDERAL COURTS FOR THE REASON
THAT IT WAS THEN THE ACCEPTED RULE OF GENERAL FEDERAL LAW THAT THE
FEDERAL COURTS TOOK JUDICIAL NOTICE OF THE LAWS OF ALL STATES. 
HOWEVER, THE ERIE CASE HELD THERE WAS NO GENERAL FEDERAL LAW. 
THEREFORE, THE RULE OF STATE LAW APPLICABLE IN A PARTICULAR FORUM MUST
BE APPLIED IN ALL CASES WHERE THERE IS CONCURRENT JURISDICTION OF BOTH
STATE AND FEDERAL COURTS, AS HERE.  WAGGAMAN V. GENERAL FINANCE CO.,
AND WARFIELD V. GENERAL FINANCE CO., 116 F.2D 254, 257; A.B. V. C.D.,
36 F.SUPP.  85. 

THE COURT OF APPEALS ERRED IN FAILING TO DETERMINE WHETHER A MISSOURI
COURT WOULD REFUSE TO APPLY THE ILLINOIS LAW BECAUSE OF REPUGNANCY
BETWEEN IT AND THE LAW OF MISSOURI.  GRIFFIN V. MCCOACH, 313 U.S. 498. 

IT IS WELL ESTABLISHED IN MISSOURI THAT A RENEWAL OF AN ACCOMMODATION
NOTE IN NO WISE ENLARGES THE RIGHTS OF THE PARTIES WHEN IT IS GIVEN
WITHOUT CONSIDERATION, AND IN NO WAY CHANGES THE RIGHTS UNDER THE
ORIGINAL NOTE.  IN THIS CASE, THE ORIGINAL NOTES WERE EXECUTED IN
MISSOURI AND MADE PAYABLE AT THE OFFICE OF THE MAKER IN MISSOURI.  THE
MISSOURI RULE IS INDISPUTABLE THAT ALL DEFENSES THAT WERE AVAILABLE
AGAINST THE ORIGINAL ACCOMMODATION NOTE ARE AVAILABLE AGAINST RENEWAL
NOTES.  MASSA V. HUEHNERHOFF, 59 S.W.2D 723; FARMERS BANK V. HARRIS,
250 S.W. 946, 950; DAVIES COUNTY BANK V. GRANTHAM, 13 S.W.2D 1079,
1081; PEOPLES BANK V. YAGER, 221 MO. APP. 955; FORD V. FORD ROOFING
CO., 285 S.W. 538, 541. 

WHETHER THE FOREIGN LAW MUST BE PLEADED AND PROVED IS NOT A
PROCEDURAL RULE.  EVEN IF IT WERE, THE SAME RESULT WOULD BE REACHED,
FOR THEN THE MATTER WOULD BE GOVERNED BY THE CONFORMITY ACT.  LYON V.
MUTUAL BENEFIT ASSN., 305 U.S. 484. 

THE THREE CASES TO WHICH RESPONDENT REFERS AS INDICATING THAT THE
RULE IN THE ERIE CASE "IS PROBABLY NOT APPLICABLE TO A SUIT TO WHICH
THE UNITED STATES IS A PARTY" ARE CLEARLY INAPPLICABLE AND SUGGEST A
CONTRARY INFERENCE.  IN EACH OF THOSE CASES THIS COURT SPECIFICALLY
STATED THAT FEDERAL STATUTES OR TREATIES WERE INVOLVED, AND THAT NO
LOCAL COMMON LAW APPLIED, THUS INDICATING THAT HAD LOCAL COMMON LAW
BEEN APPLICABLE, AS IN THE CASE AT BAR, IT WOULD HAVE BEEN APPLIED. 
BOARD OF COMMISSIONERS V. UNITED STATES, 308 U.S. 343; ROYAL INDEMNITY
CO. V. UNITED STATES, 313 U.S. 289; DEITRICK V. GREANEY, 309 U.S. 190. 

THE COURT BELOW WAS CORRECT IN APPLYING THE LAW OF ILLINOIS, ASSUMING
THAT SUCH LAW DID NOT NEED TO BE PLEADED OR PROVED. 

THE FEDERAL COURTS HAVE HERETOFORE TAKEN JUDICIAL NOTICE OF THE LAWS
OF THE SEVERAL STATES.  AS A GENERAL RULE, HOWEVER, THE STATE COURTS OF
MISSOURI MAY NOTICE THE LAWS OF A SISTER STATE ONLY IF PLEADED. 

THE DOCTRINE OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64, DID NOT
PRECLUDE THE COURTS BELOW FROM TAKING JUDICIAL NOTICE OF THE ILLINOIS
LAW IN ACCORDANCE WITH TRADITIONAL FEDERAL PRACTICE. 

A MISSOURI STATUTE ABROGATED THE COMMON LAW REQUIREMENT THAT THE LAWS
OF SISTER STATES MUST BE PROVED BY THE INTRODUCTION OF EVIDENCE, AND
LEFT ONLY THE PLEADING REQUIREMENT, WHICH IS INAPPLICABLE IN THE
FEDERAL COURTS. 

EVEN IF THE ABROGATION OF THE MISSOURI COMMON LAW RULE OF PROOF IS
CONDITIONED UPON THE PLEADING OF A SISTER-STATE LAW, THE DOCTRINE OF
THE ERIE CASE DID NOT PRECLUDE THE FEDERAL COURTS FROM TAKING JUDICIAL
NOTICE OF THE ILLINOIS LAW. 

PETITIONER IS ESTOPPED TO DENY LIABILITY ON THE NOTE UNDER FEDERAL
STATUTORY LAW AND ALSO UNDER ILLINOIS LAW, WHICH THE COURTS OF MISSOURI
WOULD BE BOUND TO APPLY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT INSTITUTED THIS SUIT IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DIVISION OF THE EASTERN DISTRICT OF MISSOURI ON A
DEMAND NOTE FOR $5000, EXECUTED BY PETITIONER IN 1933 AND PAYABLE TO
THE BELLEVILLE BANK & TRUST CO., BELLEVILLE, ILLINOIS.  RESPONDENT
INSURED THAT BANK JANUARY 1, 1934; AND IT ACQUIRED THE NOTE IN 1938 AS
PART OF THE COLLATERAL SECURING A LOAN OF OVER $1,000,000 TO THE BANK,
MADE IN CONNECTION WITH THE ASSUMPTION OF THE LATTER'S DEPOSIT
LIABILITIES BY ANOTHER BANK.  SINCE 1935 THE NOTE HAD BEEN AMONG THE
CHARGED OFF ASSETS OF THE BANK.  THE NOTE WAS EXECUTED BY PETITIONER IN
RENEWAL OF NOTES WHICH IT HAD EXECUTED IN 1926.  PETITIONER, WHO WAS
ENGAGED IN THE SECURITIES BUSINESS AT ST. LOUIS, MISSOURI, HAD SOLD THE
BANK CERTAIN BONDS WHICH LATER DEFAULTED.  THE ORIGINAL NOTES WERE
EXECUTED TO ENABLE THE BANK TO CARRY THE NOTES AND NOT SHOW ANY PAST
DUE BONDS.  PROCEEDS OF THE BONDS WERE TO BE CREDITED ON THE NOTES. 
FN1  THE RECEIPTS FOR THE NOTES CONTAINED THE STATEMENT, "THIS NOTE IS
GIVEN WITH THE UNDERSTANDING IT WILL NOT BE CALLED FOR PAYMENT.  ALL
INTEREST PAYMENTS TO BE REPAID."  RESPONDENT HAD NO KNOWLEDGE OF THE
EXISTENCE OF THE RECEIPTS UNTIL AFTER DEMAND FOR PAYMENT ON THE RENEWAL
NOTE WAS MADE IN 1938.  CERTAIN INTEREST PAYMENTS ON THE NOTES WERE
MADE PRIOR TO RENEWAL FOR THE PURPOSE OF KEEPING THEM "AS LIVE PAPER." 
PETITIONER'S PRESIDENT, WHO SIGNED THE ORIGINAL NOTES, KNEW THAT THEY
WERE EXECUTED SO THAT THE PAST DUE BONDS WOULD NOT APPEAR AMONG THE
ASSETS OF THE BANK, AND THAT THE PURPOSE OF THE INTEREST PAYMENTS WAS
"TO KEEP THE NOTES ALIVE."  THE ORIGINAL NOTES WERE SIGNED IN ST.
LOUIS, MISSOURI, WERE PAYABLE AT PETITIONER'S OFFICE THERE, AND WERE
DELIVERED TO THE PAYEE IN ILLINOIS.  THE EVIDENCE DOES NOT DISCLOSE
WHERE THE NOTE SUED UPON WAS SIGNED, THOUGH IT WAS DATED AT BELLEVILLE,
ILLINOIS, AND PAYABLE TO THE BANK THERE. 

THE MAIN POINT OF CONTROVERSY HERE REVOLVES AROUND THE QUESTION AS TO
WHAT LAW IS APPLICABLE.  THE DISTRICT COURT HELD THAT ILLINOIS LAW WAS
APPLICABLE AND THAT PETITIONER WAS LIABLE.  THE CIRCUIT COURT OF
APPEALS APPLIED "GENERAL LAW" TO DETERMINE THAT THE NOTE WAS AN
ILLINOIS RATHER THAN A MISSOURI CONTRACT; AND IT DECIDED THAT, UNDER
ILLINOIS LAW, RESPONDENT WAS THE EQUIVALENT OF A HOLDER IN DUE COURSE
AND ENTITLED TO RECOVER.  117 F.2D 491.  PETITIONER CONTENDS THAT,
UNDER THE RULE OF KLAXON CO. V. STENTOR ELECTRIC MFG. CO., 313 U.S.
487, A FEDERAL COURT SITTING IN MISSOURI MUST APPLY MISSOURI'S CONFLICT
OF LAW RULES; THAT IF, AS WAS THE CASE HERE, ILLINOIS LAW WAS NOT
PLEADED OR PROVED, A MISSOURI COURT WOULD HAVE ASCERTAINED ILLINOIS LAW
FROM MISSOURI DECISIONS, SINCE IN SUCH A CASE ILLINOIS LAW WOULD BE
PRESUMED TO BE THE SAME AS THE MISSOURI LAW; AND THAT THE DISTRICT
COURT WAS BOUND TO FOLLOW THAT SAME COURSE.  WE GRANTED THE PETITION
FOR CERTIORARI BECAUSE OF THE ASSERTED CONFLICT BETWEEN THE DECISION
BELOW AND KLAXON CO. V. STENTOR ELECTRIC MFG. CO., SUPRA. 

WE HELD IN THE LATTER DECISION THAT A FAILURE OF A FEDERAL COURT IN A
DIVERSITY OF CITIZENSHIP CASE TO FOLLOW THE FORUM'S CONFLICT OF LAWS
RULES "WOULD DO VIOLENCE TO THE PRINCIPLE OF UNIFORMITY WITHIN A STATE"
UPON WHICH ERIE R. CO. V. TOMPKINS, 304 U.S. 64, WAS BASED.  313 U.S.
AT P. 496.  THE JURISDICTION OF THE DISTRICT COURT IN THIS CASE,
HOWEVER, IS NOT BASED ON DIVERSITY OF CITIZENSHIP.  RESPONDENT, A
FEDERAL CORPORATION, BRINGS THIS SUIT UNDER AN ACT OF CONGRESS
AUTHORIZING IT TO SUE OR BE SUED "IN ANY COURT OF LAW OR EQUITY, STATE
OR FEDERAL."  FN2 SEC. 12B, FEDERAL RESERVE ACT; 12 U.S.C. SEC. 264(J);
48 STAT. 162, 168, 172; 49 STAT. 684, 692.  AND SEE 28 U.S.C. SEC. 42,
43 STAT. 941.  WHETHER THE RULE OF THE KLAXON CASE APPLIES WHERE
FEDERAL JURISDICTION IS NOT BASED ON DIVERSITY OF CITIZENSHIP, WE NEED
NOT DECIDE.  FOR WE ARE OF THE VIEW THAT THE LIABILITY OF PETITIONER ON
THE NOTE INVOLVES DECISION OF A FEDERAL, NOT A STATE, QUESTION UNDER
THE RULE OF DEITRICK V. GREANEY, 309 U.S. 190. 

PETITIONER IN ITS ANSWER ALLEGED THAT THE NOTE WAS GIVEN WITHOUT ANY
CONSIDERATION WHATEVER AND WITH THE UNDERSTANDING THAT NO SUIT WOULD BE
BROUGHT THEREON; AND THAT RESPONDENT WAS NOT A HOLDER IN DUE COURSE. 
RESPONDENT IN ITS REPLY ALLEGED THAT PETITIONER WAS ESTOPPED TO ASSERT
THOSE DEFENSES ON THE GROUNDS THAT THE NOTE WAS EXECUTED FOR THE
PURPOSE OF PERMITTING THE BANK TO AVOID HAVING ITS RECORDS SHOW ANY
PAST DUE BONDS; THAT THIS CONSTITUTED A MISREPRESENTATION WHICH WOULD
DECEIVE THE CREDITORS OF THE BANK, THE STATE BANKING AUTHORITIES AND
RESPONDENT; THAT PETITIONER PARTICIPATED IN THE MISREPRESENTATION NOT
ONLY BY REASON OF ITS KNOWLEDGE AS TO THE PURPOSE WHICH THE NOTE WOULD
SERVE BUT ALSO BY REASON OF ITS PAYMENT OF INTEREST IN ORDER TO MAKE
THE NOTES APPEAR AS A GOOD ASSET.  THE DISTRICT COURT HELD THAT
RESPONDENT WAS AN INNOCENT HOLDER OF THE NOTE IN GOOD FAITH AND FOR
VALUE AND THAT PETITIONER WAS ESTOPPED TO ASSERT WANT OF CONSIDERATION
AS A DEFENSE.    SEC. 12B (S) OF THE FEDERAL RESERVE ACT, 12 U.S.C.
SEC. 264(S), PROVIDES THAT "WHOEVER, FOR THE PURPOSE OF OBTAINING ANY
LOAN FROM THE CORPORATION  ...  OR FOR THE PURPOSE OF INFLUENCING IN
ANY WAY THE ACTION OF THE CORPORATION UNDER THIS SECTION, MAKES ANY
STATEMENT, KNOWING IT TO BE FALSE, OR WILFULLY OVERVALUES ANY SECURITY,
SHALL BE PUNISHED BY A FINE OF NOT MORE THAN $5,000, OR BY IMPRISONMENT
FOR NOT MORE THAN TWO YEARS, OR BOTH."  SUBDIVISION (Y) OF THE SAME
FN3  THAT SUCH A STATE BANK "WITH THE APPROVAL OF THE AUTHORITY HAVING
SUPERVISION" OF THE BANK AND ON "CERTIFICATION" TO RESPONDENT "BY SUCH
AUTHORITY" THAT THE BANK "IS IN SOLVENT CONDITION" SHALL "AFTER
EXAMINATION BY, AND WITH THE APPROVAL OF" THE RESPONDENT BE ENTITLED TO
INSURANCE.  FN4 

THESE PROVISIONS REVEAL A FEDERAL POLICY TO PROTECT RESPONDENT, AND
THE PUBLIC FUNDS WHICH IT ADMINISTERS, AGAINST MISREPRESENTATIONS AS TO
THE SECURITIES OR OTHER ASSETS IN THE PORTFOLIOS OF THE BANKS WHICH
RESPONDENT INSURES OR TO WHICH IT MAKES LOANS.  IF PETITIONER AND THE
BANK HAD ARRANGED TO USE THE NOTE FOR THE EXPRESS PURPOSE OF DECEIVING
RESPONDENT ON INSURANCE OF THE BANK, OR ON THE MAKING OF THE LOAN, THE
CASE WOULD BE ON ALL FOURS WITH DEITRICK V. GREANEY, SUPRA.  IN THAT
CASE, THE DEFENDANT, FOR THE PURPOSE OF CONCEALING A NATIONAL BANK'S
ACQUISITION OF ITS OWN STOCK, HAD THE SHARES HELD BY A STRAW MAN AND
EXECUTED A NOTE TO THE BANK, IT BEING AGREED THAT THE SHARES WERE TO BE
HELD FOR THE BANK AND THAT HE WAS NOT TO BE LIABLE ON THE NOTE.  WE
HELD AS A MATTER OF FEDERAL LAW, BASED ON THE POLICY OF THE NATIONAL
BANKING ACT TO PREVENT THE IMPAIRMENT OF A BANK'S CAPITAL RESOURCES BY
PROHIBITING SUCH ACQUISITIONS, THAT THE DEFENDANT COULD NOT RELY ON HIS
OWN WRONGFUL ACT TO DEFEAT THE OBLIGATION OF THE NOTE AS AGAINST THE
RECEIVER OF THE BANK.  THE DEFENDANT'S ACT WAS ITSELF A VIOLATION OF
THE STATUTE.  309 U.S. P. 198.  BUT THE REACH OF THE RULE WHICH
PREVENTS AN ACCOMMODATION MAKER OF A NOTE FROM SETTING UP THE DEFENSE
OF NO CONSIDERATION AGAINST A BANK OR ITS RECEIVER OR CREDITORS IS NOT
DELIMITED TO THOSE INSTANCES WHERE HE HAS COMMITTED A STATUTORY
OFFENSE.  AS INDICATED BY THE CASES CITED IN THE DEITRICK CASE (309
U.S. P. 198), AN ACCOMMODATION MAKER IS NOT ALLOWED THAT DEFENSE AS
AGAINST THE RECEIVER OF THE BANK AND ITS CREDITORS, OR AT TIMES EVEN AS
AGAINST THE BANK ITSELF, WHERE HIS ACT CONTRAVENES A GENERAL POLICY TO
PROTECT THE INSTITUTION OF BANKING FROM SUCH SECRET AGREEMENTS.  IN
SOME OF THOSE CASES, THE ACCOMMODATION MAKER WAS PARTY TO THE SCHEME OF
DECEPTION, IN THE SENSE THAT HE HAD FULL KNOWLEDGE OF THE INTENDED USE
OF THE PAPER.  PUTNAM V. CHASE, 106 ORE.  440, 212 P. 365; VALLELY V.
DEVANEY, 49 N.D. 1107, 194 N.W. 903; NIBLACK V. FARLEY, 286 ILL. 536,
122 N.E. 160; CEDAR STATE BANK V. OLSON, 116 KAN. 320, 226 P. 995; BAY
PARKWAY NAT. BANK V. SHALOM, 270 N.Y. 172, 200 N.E. 685; GERMAN
AMERICAN FINANCE CORP. V. MERCHANTS & MFRS.  STATE BANK, 177 MINN. 529,
225 N.W. 891.  IN OTHERS HE HAD "NO POSITIVE IDEA OF COMMITTING ANY
FRAUD UPON ANY ONE."  DENNY V. FISHTER, 238 KY. 127, 129, 36 S.W.2D
864, 865; IGLEHART V. TODD, 203 IND. 427, 442, 178 N.E. 685; MOUNT
VERNON TRUST CO. V. BERGOFF, 272 N.Y. 192, 5 N.E.2D 196.  AND SEE PAULY
V. O'BRIEN, 69 F. 460; WILLISTON ON CONTRACTS (REV. ED.)  SEC.  1632.
YET, HE HAS NOT BEEN ALLOWED TO ESCAPE LIABILITY ON THE NOTE AS AGAINST
THE RECEIVER EVEN THOUGH HE WAS "VERY IGNORANT AND ILL-INFORMED OF THE
CHARACTER OF THE TRANSACTION."  RINALDI V. YOUNG, 67 APP. D.C. 305,
307, 92 F.2D 229, 231.  INDEED, RECOVERY WAS ALLOWED BY THE BANK ITSELF
IN MOUNT VERNON TRUST CO. V. BERGOFF, SUPRA, WHERE THE COURT SAID (272
N.Y. P. 196, 5 N.E.2D 197):  "THE DEFENDANT MAY NOT HAVE INTENDED TO
DECEIVE ANY PERSON, BUT WHEN SHE EXECUTED AND DELIVERED TO THE
PLAINTIFF BANK AN INSTRUMENT IN THE FORM OF A NOTE, SHE WAS CHARGEABLE
WITH KNOWLEDGE THAT, FOR THE ACCOMMODATION OF THE BANK, SHE WAS AIDING
THE BANK TO CONCEAL THE ACTUAL TRANSACTION.  PUBLIC POLICY REQUIRES
THAT A PERSON WHO, FOR THE ACCOMMODATION OF THE BANK EXECUTES AN
INSTRUMENT WHICH IS IN FORM A BINDING OBLIGATION, SHOULD BE ESTOPPED
FROM THEREAFTER ASSERTING THAT SIMULTANEOUSLY THE PARTIES AGREED THAT
THE INSTRUMENT SHOULD NOT BE ENFORCED." 

FURTHERMORE, THE FACT THAT CREDITORS MAY NOT HAVE BEEN DECEIVED OR
SPECIFICALLY INJURED IS IRRELEVANT.  AS WE HELD IN THE DEITRICK CASE
(309 U.S. P. 198), IT IS THE "EVIL TENDENCY" OF THE ACTS TO CONTRAVENE
THE POLICY GOVERNING BANKING TRANSACTIONS WHICH LIES AT THE ROOT OF THE
RULE.  SEE 7 ZOLLMAN, BANKS & BANKING (1936) SEC. 4783. 

THOSE PRINCIPLES ARE APPLICABLE HERE, BECAUSE OF THE FEDERAL POLICY
EVIDENCED IN THIS ACT TO PROTECT RESPONDENT, A FEDERAL CORPORATION,
FROM MISREPRESENTATIONS MADE TO INDUCE OR INFLUENCE THE ACTION OF
RESPONDENT, INCLUDING MISSTATEMENTS AS TO THE GENUINENESS OR INTEGRITY
OF SECURITIES IN THE PORTFOLIOS OF BANKS WHICH IT INSURES OR TO WHICH
IT MAKES LOANS.  THOSE PRINCIPLES CALL FOR AN AFFIRMANCE OF THE
JUDGMENT BELOW. 

PETITIONER, AT THE TIME IT EXECUTED THE RENEWAL NOTE IN 1933, DID NOT
KNOW THAT IT WAS TO BE USED TO DECEIVE RESPONDENT, AS THE ACT CREATING
RESPONDENT WAS NOT PASSED UNTIL LATER.  BUT THE PERMISSION WHICH IT
GAVE THE BANK TO CARRY THE NOTE AS A REAL ASSET WAS A CONTINUING ONE
AND NOT REVOKED.  THAT PERMISSION MUST BE PRESUMED TO HAVE INCLUDED
AUTHORITY FOR THE BANK TO TREAT THE NOTE AS GENUINE FOR PURPOSES OF
EXAMINATION AT THE HANDS OF THE PUBLIC AUTHORITIES AS WELL AS FOR ITS
GENERAL BANKING ACTIVITIES. 

RESPONDENT INSURED THE BANK IN 1934.  THE LOAN WAS MADE IN 1938 TO
SATISFY RESPONDENT'S LIABILITY TO THE DEPOSITORS OF THE BANK UNDER THAT
INSURANCE AGREEMENT.  RESPONDENT WAS AUTHORIZED TO INSURE SUCH A BANK
ONLY ON A CERTIFICATE FROM THE STATE AUTHORITY THAT THE BANK WAS
SOLVENT.  WE ASSUME THAT SUCH CERTIFICATE WAS GIVEN, FOR TO ASSUME
OTHERWISE WOULD BE TO INFER THAT RESPONDENT DID NOT DISCHARGE ITS
STATUTORY DUTIES.  THE GENUINENESS OF ASSETS OSTENSIBLY HELD BY A BANK
IS CERTAINLY GERMANE TO A DETERMINATION OF SOLVENCY.  CLEARLY
RESPONDENT IS A MEMBER OF THE CREDITOR CLASS WHICH THE BANKING
AUTHORITIES WERE INTENDED TO PROTECT.  PLAINLY ONE WHO GIVES SUCH A
NOTE TO A BANK WITH A SECRET AGREEMENT THAT IT WILL NOT BE ENFORCED
MUST BE PRESUMED TO KNOW THAT IT WILL CONCEAL THE TRUTH FROM THE
VIGILANT EYES OF THE BANK EXAMINERS.  IF THE BANK HAD WILFULLY PADDED
THE BANK'S ASSETS WITH THE SPURIOUS NOTE IN ORDER TO OBTAIN INSURANCE
FROM RESPONDENT, THERE SEEMS NO DOUBT BUT THAT SEC. 12B (S) WOULD HAVE
BEEN VIOLATED.  MOREOVER, AS WE HAVE SEEN, THE INABILITY OF AN
ACCOMMODATION MAKER TO PLEAD THE DEFENSE OF NO CONSIDERATION DOES NOT
DEPEND ON HIS COMMISSION OF A PENAL OFFENSE.  THE TEST IS WHETHER THE
NOTE WAS DESIGNED TO DECEIVE THE CREDITORS OR THE PUBLIC AUTHORITY, OR
WOULD TEND TO HAVE THAT EFFECT.  IT WOULD BE SUFFICIENT IN THIS TYPE OF
CASE THAT THE MAKER LENT HIMSELF TO A SCHEME OR ARRANGEMENT WHEREBY THE
BANKING AUTHORITY ON WHICH RESPONDENT RELIED IN INSURING THE BANK WAS
OR WAS LIKELY TO BE MISLED.  AS WE HAVE SAID, PETITIONER'S AUTHORITY TO
THE BANK TO USE THIS NOTE WAS A CONTINUING ONE.  THE USE TO WHICH IT
WAS PUT WAS NOT UNUSUAL BUT WITHIN THE NORMAL SCOPE OF BANKING
ACTIVITIES.  THE FACT THAT THE NOTE WAS CHARGED OFF BY THE BANK
SUBSEQUENT TO THE TIME WHEN RESPONDENT INSURED THE BANK AND PRIOR TO
THE TIME WHEN IT ACQUIRED THE NOTE UNDER THE LOAN IS IMMATERIAL.  A
NOTE MAY BE NONETHELESS AN ASSET THOUGH IT IS CHARGED OFF.  AND
RESPONDENT IS SUING HERE TO PROTECT ITS RIGHTS AS AN INSURER, A
RELATIONSHIP WITH THE BANK WHICH WAS CREATED PRIOR TO THE TIME WHEN THE
NOTE WAS CHARGED OFF.  THE FACT THAT SUBSEQUENTLY RESPONDENT LEARNED
THAT THE NOTE HAD BEEN CHARGED OFF CERTAINLY WAS NOT NOTICE THAT THE
NOTE WAS SPURIOUS.  IT IS INDEED CLEAR THAT AT NO TIME PRIOR TO THE
DEMAND FOR PAYMENT DID RESPONDENT KNOW THAT THE NOTE WAS NOT GENUINE. 
IT NEEDS NO ARGUMENT TO DEMONSTRATE THAT THE INTEGRITY OF OSTENSIBLE
ASSETS HAS A DIRECT RELATION TO SOLVENCY.  AND IT IS NO MORE A DEFENSE
HERE THAN IT WAS IN THE DEITRICK CASE THAT NO DAMAGE WAS SHOWN TO HAVE
RESULTED FROM THE FRAUDULENT OR UNLAWFUL ACT.  THE FEDERAL POLICY
EXPRESSED IN THE ACT, LIKE ITS COUNTERPART IN STATE LAW, IS NOT
DEPENDENT ON PROOF OF LOSS OR DAMAGE CAUSED BY THE FRAUDULENT
PRACTICE. 

THOUGH PETITIONER WAS NOT A PARTICIPANT IN THIS PARTICULAR
TRANSACTION AND, SO FAR AS APPEARS, WAS IGNORANT OF IT, NEVERTHELESS IT
WAS RESPONSIBLE FOR THE CREATION OF THE FALSE STATUS OF THE NOTE IN THE
HANDS OF THE BANK.  IT THEREFORE CANNOT BE HEARD TO ASSERT THAT THE
FEDERAL POLICY TO PROTECT RESPONDENT AGAINST SUCH FRAUDULENT PRACTICES
SHOULD NOT BAR ITS DEFENSE TO THE NOTE.  CRIMINAL PENALTIES ARE NO MORE
THE SOLE SANCTIONS OF THE FEDERAL POLICY EXPRESSED IN THIS ACT THAN
WERE THE CRIMINAL PENALTIES IMPOSED ON THE AGREEMENT IN THE DEITRICK
CASE.  IF THE SECRET AGREEMENT WERE ALLOWED AS A DEFENSE IN THIS CASE
THE MAKER OF THE NOTE WOULD BE ENABLED TO DEFEAT THE PURPOSE OF THE
STATUTE BY TAKING ADVANTAGE OF AN UNDISCLOSED AND FRAUDULENT
ARRANGEMENT WHICH THE STATUTE CONDEMNS AND WHICH THE MAKER OF THE NOTE
MADE POSSIBLE.  THE FEDERAL POLICY UNDER THIS ACT OF PROTECTING
RESPONDENT IN ITS VARIOUS FUNCTIONS AGAINST SUCH ARRANGEMENTS IS NO
LESS CLEAR OR EMPHATIC THAN THE FEDERAL POLICY OF OUTLAWING PURCHASES
BY A BANK OF ITS OWN STOCK INVOLVED IN THE DEITRICK CASE.  CF. RINALDI
V. YOUNG, SUPRA; FEDERAL DEPOSIT INS. CORP. V. WOODS, 34 F.SUPP.  296. 
AFFIRMED. 

FN1  THE BANK SOLD SOME OF THE BONDS IN 1937 FOR $100 AND CREDITED
THIS AMOUNT TO INTEREST DUE ON THE NOTE.  THIS CREDIT PAID INTEREST TO
MAY 1, 1933.  NO LATER PAYMENTS WERE MADE ON THE NOTE. 

FN2  THAT SUBDIVISION OF THE ACT FURTHER PROVIDES:  "ALL SUITS OF A
CIVIL NATURE AT COMMON LAW OR IN EQUITY TO WHICH THE CORPORATION SHALL
BE A PARTY SHALL BE DEEMED TO ARISE UNDER THE LAWS OF THE UNITED
STATES:  PROVIDED, THAT ANY SUCH SUIT TO WHICH THE CORPORATION IS A
PARTY IN ITS CAPACITY AS RECEIVER OF A STATE BANK AND WHICH INVOLVES
ONLY THE RIGHTS OR OBLIGATIONS OF DEPOSITORS, CREDITORS, STOCKHOLDERS
AND SUCH STATE BANK UNDER STATE LAW SHALL NOT BE DEEMED TO ARISE UNDER
THE LAWS OF THE UNITED STATES."  AND SEE S. REP. NO. 1007, 74TH CONG.,
1ST SESS., P. 5. 

FN3  THESE PROVISIONS OF SUBDIVISION (Y) WERE DROPPED WHEN SEC. 12 B
WAS AMENDED BY THE BANKING ACT OF 1935.  49 STAT. 684.  SEE S. REP. NO.
1007, 74TH CONG., 1ST SESS., P. 9. 

FN4  SUBDIVISION (Y) ALSO GAVE RESPONDENT POWER TO PRESCRIBE RULES
AND REGULATIONS FOR THE FURTHER EXAMINATION OF SUCH BANK.  THOUGH
SUBDIVISION (Y) WAS REVISED IN 1935, AS INDICATED IN NOTE 3, SUPRA,
SUBDIVISION (K)(2) OF THE AMENDED ACT GAVE RESPONDENT'S EXAMINERS POWER
"TO MAKE A THOROUGH EXAMINATION OF ALL THE AFFAIRS" OF SUCH BANKS AND
IN DOING SO "TO ADMINISTER OATHS AND TO EXAMINE AND TAKE AND PRESERVE
THE TESTIMONY OF ANY OF THE OFFICERS AND AGENTS THEREOF."  THEY WERE
DIRECTED TO MAKE A "FULL AND DETAILED REPORT OF THE CONDITION OF THE
BANK TO THE CORPORATION."  12 U.S.C. SEC. 264(K)(2). 

MR. JUSTICE ROBERTS DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER: 

THE CHIEF JUSTICE AND I CONCUR IN THE RESULT ON THE GROUND THAT IN
THE CIRCUMSTANCES OF THIS CASE RESPONDENT IS ENTITLED TO RECOVER,
WHATEVER LAW BE DEEMED CONTROLLING.  IF ILLINOIS LAW GOVERNS,
RESPONDENT IS ADMITTEDLY ENTITLED TO RECOVER AS A HOLDER IN DUE
COURSE.  IF MISSOURI LAW GOVERNS, PETITIONER IS ESTOPPED TO ASSERT THE
DEFENSES ON WHICH IT NOW RELIES.  WHETHER THE CASE IS GOVERNED BY THE
LAW OF ONE STATE OR THE OTHER, OR BY "FEDERAL COMMON LAW" DRAWN HERE
FROM ONE STATE OR THE OTHER, THE RESULT IS THE SAME. 

WHEN THE ORIGINAL ACCOMMODATION NOTES WERE EXECUTED IN 1926,
PETITIONER FULLY KNEW THAT THE WHOLE TRANSACTION WAS AIMED AT GIVING
THE BANK AN APPEARANCE OF ASSETS WHERE THERE WERE NONE.  PETITIONER'S
REPRESENTATIVE ADMITTED THAT THE BANK "SUGGESTED THAT WE ISSUE A NOTE
TO THE BANK," WHICH WOULD ENABLE IT "TO CARRY THIS NOTE AND NOT SHOW
ANY PAST DUE PAPER."  HE HAD BEEN IN THE INVESTMENT SECURITY BUSINESS
SINCE 1910; HE "KNEW WHAT THE BANK MEANT," AND THAT IT WAS SUBJECT TO
PERIODIC EXAMINATIONS BY THE STATE BANK EXAMINER, AND HE ASSUMED THE
BANK DID NOT WANT PAST DUE PAPER.  ON THESE FACTS THE TRIAL JUDGE HELD
THAT PETITIONER IS ESTOPPED TO ASSERT ABSENCE OF CONSIDERATION AS A
DEFENSE. 

NOTHING IN MISSOURI STATUTES OR DECISIONS BROUGHT TO OUR NOTICE WOULD
WARRANT US IN SETTING ASIDE THIS RULING.  A CASE DECIDED IN 1901,
CHICAGO TITLE & TRUST CO. V. BRADY, 165 MO. 197, 65 S.W. 303, MIGHT
HAVE CALLED FOR A DIFFERENT RESULT.  THERE AN ACCOMMODATION MAKER WAS
HELD NOT ESTOPPED TO ASSERT ABSENCE OF CONSIDERATION AS A DEFENSE
AGAINST THE BANK'S RECEIVER, EVEN THOUGH HE HAD KNOWN THAT THE NOTE WAS
PART OF A SCHEME TO DECEIVE THE STATE BANKING AUTHORITIES BY SWELLING
THE APPARENT ASSETS OF THE BANK.  BUT IN 1920 THE MISSOURI SUPREME
COURT MADE IT CLEAR THAT THE BRADY DECISION CAN NO LONGER BE TAKEN TO
REPRESENT THE LAW OF THAT STATE.  SUCH IS THE PURPORT OF BANK OF SLATER
V. UNION STATION BANK, 283 MO. 308, 320, 222 S.W. 993, 996: 

"THE FACTS IN THIS CASE INEVITABLY SUGGEST THE QUESTION (OF ESTOPPEL)
WE HAVE DISCUSSED IN THIS PARAGRAPH.  COUNSEL FOR RESPONDENT, HOWEVER,
HAVE NOT RAISED IT - BEING DETERRED, DOUBTLESS, BY THE DECISION IN
TITLE & TRUST CO. V. BRADY, 165 MO. 197, WHERE A CONTRARY DOCTRINE IS
COUNTENANCED - AND WE THEREFORE REFRAIN FROM RULING UPON THE
PROPOSITION.  WE HAVE TOUCHED UPON IT, FOR THE REASON THAT IF THE BRADY
CASE, SUPRA, IS CONSIDERED AS ANNOUNCING 'THE MISSOURI RULE' UPON THIS
TOPIC, AS SOME COMMENTATORS HAVE SAID, THAT RULE IS APPARENTLY IN
CONFLICT WITH NUMEROUS AND RESPECTABLE AUTHORITIES, AND ITS SOUNDNESS
MAY ADMIT OF QUESTION."  NO SUBSEQUENT DECISION WAS CITED, NOR HAVE WE
FOUND ANY, TO SHOW THAT THE COURT HAS SINCE REVERTED TO THE DOCTRINE OF
THE BRADY CASE.  IT CANNOT BE SAID, THEREFORE, THAT IN HOLDING
PETITIONER ESTOPPED THE TRIAL JUDGE DEPARTED FROM MISSOURI LAW. 
THERE IS NO FEDERAL STATUTE TO OVERRIDE EITHER THE MISSOURI LAW AS TO
ESTOPPEL OR THE ILLINOIS LAW WHICH TREATS RESPONDENT AS A HOLDER IN DUE
COURSE.  WERE THIS COURT, IN THE ABSENCE OF FEDERAL LEGISLATION, TO
MAKE ITS OWN CHOICE OF LAW, COMPARE UNITED STATES V. GUARANTY TRUST
CO., 293 U.S. 340; O'BRIEN V. WESTERN UNION TELEGRAPH CO., 113 F.2D
539; AND HINDERLIDER V. LA PLATA CO., 304 U.S. 92, DECIDED THE SAME DAY
AS ERIE R. CO. V. TOMPKINS, 304 U.S. 64, ILLINOIS OR MISSOURI LAW WOULD
FURNISH THE GOVERNING PRINCIPLES.  SEE BOARD OF COMM'RS V. UNITED
STATES, 308 U.S. 343; ROYAL INDEMNITY CO. V. UNITED STATES, 313 U.S.
289, 296; JUST V. CHAMBERS, 312 U.S. 383, 387. 

WE ARE UNABLE TO FIND AN ESTOPPEL CREATED BY FEDERAL STATUTE. 
RELIANCE IS PLACED UPON DEITRICK V. GREANEY, 309 U.S. 190.  BUT THAT
CASE RESTED ON A PLAIN VIOLATION OF AN EXPLICIT PROVISION OF A FEDERAL
STATUTE IN FORCE AT THE TIME OF ITS OCCURRENCE.  THIS IS NOT TRUE
HERE.  AN ACCOMMODATION NOTE DEPOSITED IN A BANK BEFORE AN ACT OF
CONGRESS IS ON THE BOOKS CAN HARDLY BECOME A VIOLATION OF THE ACT AFTER
IT IS PASSED MERELY BECAUSE THE NOTE REMAINS IN THE BANK.  ONE CANNOT
VIOLATE A STATUTE BEFORE IT COMES INTO BEING.  INSOFAR AS THE STATUTE
MAY APPLY TO ARRANGEMENTS WHEREBY THE FEDERAL DEPOSIT INSURANCE
CORPORATION MIGHT HAVE BEEN MISLED TO ITS DETRIMENT INTO INSURING AN
INSOLVENT BANK, THE RECORD IS BARREN OF ANY INDICATION THAT THE $5,000
NOTE IN QUESTION HAD ANY RELATION TO THE BANK'S SOLVENCY OR TO THE
CORPORATION'S UNDERTAKING AS AN INSURER. 

THE FEDERAL DEPOSIT INSURANCE CORPORATION IS BRINGING THIS SUIT AS
PLEDGEE.  AS TO THE NOTE SUED UPON, IT IS IN NO DIFFERENT POSITION THAN
WOULD BE ANY OTHER PLEDGEE.  INDEED, FROM THE BUSINESS POINT OF VIEW,
ITS POSITION IS LESS FAVORABLE.  FOR IT BECAME PLEDGEE ONLY IN 1938,
THREE YEARS AFTER THE NOTE HAD BEEN CHARGED OFF ON THE BOOKS OF THE
BANK.  THE CORPORATION HAD SINCE 1934 BEEN MAKING A REGULAR ANNUAL
EXAMINATION OF THE BANK'S BOOKS, WHICH SHOWED THIS FACT; AND THE
SCHEDULE OF COLLATERAL GIVEN TO RESPONDENT WHEN IT BECAME PLEDGEE MADE
IT PERFECTLY CLEAR THAT THE NOTE HAD BEEN CHARGED OFF. 

WE ARE NOT CONCERNED HERE WITH LIABILITY BASED ON ANY DOCTRINE OF
"EQUITABLE ESTOPPEL" EVOLVED AS A PRINCIPLE OF FEDERAL COMMON LAW
HAVING NO STATUTORY ROOTS.  FOR WE HAVE PUT TO ONE SIDE, AS UNNECESSARY
TO THE DISPOSITION OF THIS CASE, THE DUTY OF THIS COURT TO MAKE LAW
"INTERSTITIALLY" (AS MR. JUSTICE HOLMES PUT IT IN SOUTHERN PACIFIC CO.
V. JENSEN, 244 U.S. 205, 221) IN CONTROVERSIES ARISING IN THE FEDERAL
COURTS OUTSIDE THEIR DIVERSITY JURISDICTION. 

OF COURSE THE POLICY EXPRESSED BY THE FEDERAL DEPOSIT INSURANCE ACT
MIGHT BE VIOLATED, AS THE NATIONAL BANK ACT WAS VIOLATED IN THE
DEITRICK CASE, WHOLLY APART FROM ANY QUESTION OF ESTOPPEL OR PROOF OF
LOSS TO THE CORPORATION.  OUR DIFFICULTY IS THAT THE STATUTE CANNOT BE
STRETCHED TO FIT THIS CASE.  AND IT SEEMS UNNECESSARY TO FORCE SUCH A
RESULT WHEN A SOLUTION ACCORDING TO SETTLED DOCTRINES IS AVAILABLE. 

MR. JUSTICE JACKSON, CONCURRING: 

I THINK WE SHOULD ATTEMPT A MORE EXPLICIT ANSWER TO THE QUESTION
WHETHER FEDERAL OR STATE LAW GOVERNS OUR DECISION IN THIS SORT OF CASE
THAN IS FOUND EITHER IN THE OPINION OF THE COURT OR IN THE CONCURRING
OPINION OF MR. JUSTICE FRANKFURTER.  THAT QUESTION, AS OLD AS THE
FEDERAL JUDICIARY, IS MET INESCAPABLY AT THE THRESHOLD OF THIS CASE. 
IT IS THE ONE WHICH MOVED US TO GRANT CERTIORARI, AND WE COULD NOT
RESORT TO THE RULE ANNOUNCED WITHOUT AT LEAST A TACIT ANSWER TO IT.
THE PETITIONER ASSERTS THAT THE DECISIONS IN ERIE R. CO. V. TOMPKINS,
304 U.S. 64, AND KLAXON CO. V. STENTOR ELECTRIC MFG. CO., 313 U.S. 487,
GOVERN THIS CASE.  IF THEY DO, WE WOULD NOT BE FREE TO DISREGARD THE
LAW OF MISSOURI AND ILLINOIS AND TO APPLY A DOCTRINE OF ESTOPPEL
ACTUALLY - BUT NOT AVOWEDLY - DRAWN FROM COMMON-LAW SOURCES TO
EFFECTUATE THE POLICY WE THINK IMPLICIT IN FEDERAL STATUTES. 

THE RULES OF DECISION ACT  FN1  PROVIDES THAT "THE LAWS OF THE
SEVERAL STATES, EXCEPT WHERE THE CONSTITUTION, TREATIES OR STATUTES OF
THE UNITED STATES SHALL OTHERWISE REQUIRE OR PROVIDE, SHALL BE REGARDED
AS RULES OF DECISION IN TRIALS AT COMMON LAW, IN THE COURTS OF THE
UNITED STATES, IN CASES WHERE THEY APPLY."  WHETHER "LAWS OF THE
SEVERAL STATES" AS SO USED INCLUDED NON-STATUTORY LAW EMBODIED IN
JUDICIAL DECISIONS OF STATE COURTS WAS LONG A SUBJECT OF CONTROVERSY. 
AFTER ACTING FOR HALF A CENTURY ON THE BELIEF THAT IT DID, THE COURT IN
SWIFT V. TYSON, 16 PET. 1, DECIDED THAT IT DID NOT.  ALMOST A CENTURY
LATER THAT DECISION WITH ITS NUMEROUS AND SORRY PROGENY WAS OVERRULED,
AND THE COURT ANSWERED THAT IT DID.  ERIE R. CO. V. TOMPKINS, SUPRA.
IT LATER HELD THAT STATE DECISIONS ON CONFLICTS OF LAWS WERE ALSO
BINDING ON THE FEDERAL COURTS.  KLAXON CO. V. STENTOR MFG. CO., SUPRA.
THUS, THE RULES OF DECISION ACT AS NOW INTERPRETED REQUIRES FEDERAL
COURTS TO USE STATE LAW WHETHER DECLARED BY THE LEGISLATURE OR BY THE
COURTS AS RULES OF DECISION "IN CASES WHERE THEY APPLY," EXCEPT WHERE
FEDERAL LAW "SHALL OTHERWISE REQUIRE OR PROVIDE."  THESE RECENT CASES,
LIKE SWIFT V. TYSON WHICH EVOKED THEM, DEALT ONLY WITH THE VERY SPECIAL
PROBLEMS ARISING IN DIVERSITY CASES, WHERE FEDERAL JURISDICTION EXISTS
TO PROVIDE NONRESIDENT PARTIES AN OPTIONAL FORUM OF ASSURED
IMPARTIALITY.  FN2  THE COURT HAS NOT EXTENDED THE DOCTRINE OF ERIE R.
CO. V. TOMPKINS BEYOND DIVERSITY CASES.  FN3 

THIS CASE IS NOT ENTERTAINED BY THE FEDERAL COURTS BECAUSE OF
DIVERSITY OF CITIZENSHIP.  IT IS HERE BECAUSE A FEDERAL AGENCY BRINGS
THE ACTION, AND THE LAW OF ITS BEING PROVIDES, WITH EXCEPTIONS NOT
IMPORTANT HERE, THAT:  "ALL SUITS OF A CIVIL NATURE AT COMMON LAW OR IN
EQUITY TO WHICH THE CORPORATION SHALL BE A PARTY SHALL BE DEEMED TO
ARISE UNDER THE LAWS OF THE UNITED STATES:  ...  "  FN4  THAT THIS
PROVISION IS NOT MERELY JURISDICTIONAL IS SUGGESTED BY THE PRESENCE IN
THE SAME SECTION OF THE ACT OF THE SEPARATE PROVISION THAT THE
CORPORATION MAY SUE AND BE SUED "IN ANY COURT OF LAW OR EQUITY, STATE
OR FEDERAL."  FN5 

ALTHOUGH BY CONGRESSIONAL COMMAND THIS CASE IS TO BE DEEMED ONE
ARISING UNDER THE LAWS OF THE UNITED STATES, NO FEDERAL STATUTE
PURPORTS TO DEFINE THE CORPORATION'S RIGHTS AS A HOLDER OF THE NOTE IN
SUIT OR THE LIABILITY OF THE MAKER THEREOF.  THERE ARISES, THEREFORE,
THE QUESTION WHETHER IN DECIDING THE CASE WE ARE BOUND TO APPLY THE LAW
OF SOME PARTICULAR STATE OR WHETHER, TO PUT IT BLUNTLY, WE MAY MAKE OUR
OWN LAW FROM MATERIALS FOUND IN COMMON-LAW SOURCES. 

THIS ISSUE HAS A LONG HISTORICAL BACKGROUND OF LEGAL AND POLITICAL
CONTROVERSY AS TO THE PLACE OF THE COMMON LAW IN FEDERAL
JURISPRUDENCE.  FN6  AS THE MATTER NOW STANDS, IT SEEMS SETTLED THAT
THE FEDERAL COURTS MAY NOT RESORT TO THE COMMON LAW TO PUNISH CRIMES
NOT MADE PUNISHABLE BY ACT OF CONGRESS,  FN7  AND THAT, APART FROM
SPECIAL STATUTORY OR CONSTITUTIONAL PROVISION, THEY ARE NOT BOUND IN
OTHER FIELDS BY ENGLISH PRECEDENTS EXISTING AT ANY PARTICULAR DATE. 
THE FEDERAL COURTS HAVE NO GENERAL COMMON LAW, AS IN A SENSE THEY HAVE
NO GENERAL OR COMPREHENSIVE JURISPRUDENCE OF ANY KIND, BECAUSE MANY
SUBJECTS OF PRIVATE LAW WHICH BULK LARGE IN THE TRADITIONAL COMMON LAW
ARE ORDINARILY WITHIN THE PROVINCE OF THE STATES AND NOT OF THE FEDERAL
GOVERNMENT.  BUT THIS IS NOT TO SAY THAT WHEREVER WE HAVE OCCASION TO
DECIDE A FEDERAL QUESTION WHICH CANNOT BE ANSWERED FROM FEDERAL
STATUTES ALONE WE MAY NOT RESORT TO ALL OF THE SOURCE MATERIALS OF THE
COMMON LAW, OR THAT WHEN WE HAVE FASHIONED AN ANSWER IT DOES NOT BECOME
A PART OF THE FEDERAL NON-STATUTORY OR COMMON LAW. 

I DO NOT UNDERSTAND JUSTICE BRANDEIS'S STATEMENT IN ERIE R. CO. V.
TOMPKINS, 304 U.S. 64 AT 78, THAT "THERE IS NO FEDERAL GENERAL COMMON
LAW," TO DENY THAT THE COMMON LAW MAY IN PROPER CASES BE AN AID TO, OR
THE BASIS OF, DECISION OF FEDERAL QUESTIONS.  IN ITS CONTEXT IT MEANS
TO ME ONLY THAT FEDERAL COURTS MAY NOT APPLY THEIR OWN NOTIONS OF THE
COMMON LAW AT VARIANCE WITH APPLICABLE STATE DECISIONS EXCEPT "WHERE
THE CONSTITUTION, TREATIES, OR STATUTES OF THE UNITED STATES (SO)
REQUIRE OR PROVIDE."  FN8  INDEED, IN A CASE DECIDED ON THE SAME DAY AS
ERIE R. CO. V. TOMPKINS, JUSTICE BRANDEIS SAID THAT "WHETHER THE WATER
OF AN INTERSTATE STREAM MUST BE APPORTIONED BETWEEN THE TWO STATES IS A
QUESTION OF 'FEDERAL COMMON LAW' UPON WHICH NEITHER THE STATUTES NOR
THE DECISIONS OF EITHER STATE CAN BE CONCLUSIVE."  HINDERLIDER V. LA
PLATA CO., 304 U.S. 92, 110. 

WERE WE BEREFT OF THE COMMON LAW, OUR FEDERAL SYSTEM WOULD BE
IMPOTENT.  THIS FOLLOWS FROM THE RECOGNIZED FUTILITY OF ATTEMPTING ALL
COMPLETE STATUTORY CODES, AND IS APPARENT FROM THE TERMS OF THE
CONSTITUTION ITSELF. 

THE CONTRACT CLAUSE, WHICH PROHIBITS A STATE FROM PASSING ANY "LAW
IMPAIRING THE OBLIGATION OF CONTRACTS," IS AN EXAMPLE OF THE PART THE
COMMON LAW MUST PLAY IN OUR SYSTEM.  THIS PROVISION IS MEANINGLESS
UNLESS WE KNOW WHAT A CONTRACT IS.  THE CONSTITUTION WISELY REFRAINS
FROM SAYING.  WE HAVE VERY RECENTLY HELD, UPON A LONG LINE OF
AUTHORITY, THAT IN APPLYING THIS CLAUSE WE ARE NOT BOUND BY THE STATE'S
VIEWS AS TO WHETHER THERE IS A CONTRACT.  IRVING TRUST CO. V. DAY, 314
U.S. 556.  TAKE THE CASE WHERE THE QUESTION IS WHETHER A PROMISE MADE
WITHOUT CONSIDERATION COMES WITHIN THE PROTECTION OF THE CONTRACT
CLAUSE.  IS THERE ANY DOUBT AS TO WHERE WE MUST GO FOR THE ANSWER THAT
WE DO NOT FIND IN THE CONSTITUTION ITSELF?  THIS COURT HAS NOT
HESITATED TO READ THE COMMON-LAW DOCTRINE OF CONSIDERATION INTO THE
CONTRACT CLAUSE, AND TO RESTRICT THE PROTECTION OF THAT CLAUSE TO
PROMISES SUPPORTED BY CONSIDERATION.  DURKEE V. BOARD OF LIQUIDATION,
103 U.S. 646, 648; PEARSALL V. GREAT NORTHERN RY. CO., 161 U.S. 646,
667; GRAND LODGE V. NEW ORLEANS, 166 U.S. 143, 146.  COMPARE ALLEGHENY
COLLEGE V. NATIONAL CHAUTAUQUA COUNTY BANK, 246 N.Y. 369, 159 N.E.
173. 

OTHER RECOGNITIONS OF OUR COMMON-LAW POWERS ABOUND IN THE
CONSTITUTION.  FN9 

A FEDERAL COURT SITTING IN A NON-DIVERSITY CASE SUCH AS THIS DOES NOT
SIT AS A LOCAL TRIBUNAL.  IN SOME CASES IT MAY SEE FIT FOR SPECIAL
REASONS TO GIVE THE LAW OF A PARTICULAR STATE HIGHLY PERSUASIVE OR EVEN
CONTROLLING EFFECT, BUT IN THE LAST ANALYSIS ITS DECISION TURNS UPON
THE LAW OF THE UNITED STATES, NOT THAT OF ANY STATE.  FEDERAL LAW IS NO
JURIDICAL CHAMELEON, CHANGING COMPLEXION TO MATCH THAT OF EACH STATE
WHEREIN LAWSUITS HAPPEN TO BE COMMENCED BECAUSE OF THE ACCIDENTS OF
SERVICE OF PROCESS AND OF THE APPLICATION OF THE VENUE STATUTES.  IT IS
FOUND IN THE FEDERAL CONSTITUTION, STATUTES, OR COMMON LAW.  FEDERAL
COMMON LAW IMPLEMENTS THE FEDERAL CONSTITUTION AND STATUTES, AND IS
CONDITIONED BY THEM.  FN10  WITHIN THESE LIMITS, FEDERAL COURTS ARE
FREE TO APPLY THE TRADITIONAL COMMON-LAW TECHNIQUE OF DECISION AND TO
DRAW UPON ALL THE SOURCES OF THE COMMON LAW IN CASES SUCH AS THE
PRESENT.  BOARD OF COMMISSIONERS V. UNITED STATES, 308 U.S. 343, 350. 

THE LAW WHICH WE APPLY TO THIS CASE CONSISTS OF PRINCIPLES OF
ESTABLISHED CREDIT IN JURISPRUDENCE, SELECTED BY US BECAUSE THEY ARE
APPROPRIATE TO EFFECTUATE THE POLICY OF THE GOVERNING ACT.  THE
CORPORATION WAS CREATED AND FINANCED IN PART BY THE UNITED STATES  FN11
TO BOLSTER THE ENTIRE BANKING AND CREDIT STRUCTURE.  THE CORPORATION
DID NOT SIMPLY STEP INTO THE PRIVATE SHOES OF LOCAL BANKS.  THE
PURPOSES SOUGHT TO BE ACCOMPLISHED BY IT CAN BE ACCOMPLISHED ONLY IF IT
MAY RELY ON THE INTEGRITY OF BANKING STATEMENTS AND BANKING ASSETS.  IN
THIS CASE THE CORPORATION ATTEMPTED TO REALIZE ON A NOTE THAT WAS A
PART OF THE ASSETS AT THE TIME IT INSURED THE BANK.  IT IS MET BY THE
PLEA THAT THE NOTE WAS A SHAM KNOWINGLY GIVEN TO ENABLE THE BANK TO
CONCEAL THE WORTHLESSNESS OF CERTAIN BONDS WHICH IT HAD BOUGHT FROM THE
MAKER, A BROKER.  THIS DECEPTION WAS NOT FOR THE SINGLE DAY ON WHICH
THE NOTE WAS DELIVERED; ITS PURPOSE AND ITS EFFECT WERE TO OPERATE AS A
CONTINUING INDUCEMENT TO EXISTING CREDITORS, AND TO THOSE WHO MIGHT
BECOME CREDITORS, TO RELY ON THIS NOTE AS A $5,000 ITEM COUNTING
TOWARDS ITS SOLVENCY.  IT MAY NOT HAVE CONTEMPLATED THE THEN UNBORN
FEDERAL DEPOSIT INSURANCE CORPORATION AS THE PARTICULAR OBJECT OF ITS
DECEPTION, BUT ITS PURPOSE WAS TO CONCEAL A LOSS FROM THEN UNKNOWN AND
UNIDENTIFIED PERSONS WHO MIGHT BE OR BECOME CREDITORS OR BANKING
SUPERVISORS ON BEHALF OF THE PUBLIC.  UNDER THE ACT, THE CORPORATION
HAS A DUAL RELATION OF CREDITOR OR POTENTIAL CREDITOR AND OF
SUPERVISING AUTHORITY TOWARD INSURED BANKS.  FN12  THE IMMUNITY OF SUCH
A CORPORATION FROM SCHEMES CONCOCTED BY THE COOPERATIVE DECEIT OF BANK
OFFICERS AND CUSTOMERS IS NOT A QUESTION TO BE ANSWERED FROM
CONSIDERATIONS OF GEOGRAPHY.  THAT A PARTICULAR STATE HAPPENED TO HAVE
THE GREATEST CONNECTION, IN THE CONFLICT OF LAWS SENSE, WITH THE MAKING
OF THE NOTE INVOLVED, OR THAT THE SUBSEQUENT CONDUCT HAPPENED TO BE
CHIEFLY CENTERED THERE, IS NOT ENOUGH TO MAKE US SUBSERVIENT TO THE
LEGISLATIVE POLICY OR THE JUDICIAL VIEWS OF THAT STATE.  FN13 

I CONCUR IN THE COURT'S HOLDING BECAUSE I THINK THAT THE DEFENSE
ASSERTED IS NOWHERE ADMISSIBLE AGAINST THE CORPORATION AND THAT WE NEED
NOT GO TO THE LAW OF ANY PARTICULAR STATE AS OUR AUTHORITY FOR SO
HOLDING.    I HARDLY SUPPOSE THAT CONGRESS INTENDED TO SET US
COMPLETELY ADRIFT FROM STATE LAW WITH REGARD TO ALL QUESTIONS AS TO
WHICH IT HAS NOT PROVIDED A STATUTORY ANSWER.  AN INTENTION TO GIVE
PERSUASIVE OR BINDING EFFECT TO STATE LAW HAS BEEN FOUND TO EXIST IN A
NUMBER OF CASES SIMILAR IN THAT THEY AROSE UNDER A LAW OF THE UNITED
STATES BUT WERE NOT GOVERNED BY ANY SPECIFIC STATUTORY PROVISION.  FN14
NO DOUBT MANY QUESTIONS AS TO THE LIABILITY OF PARTIES TO COMMERCIAL
PAPER WHICH COMES INTO THE HANDS OF THE CORPORATION WILL BEST BE SOLVED
BY APPLYING THE LOCAL LAW WITH REFERENCE TO WHICH THE MAKERS AND THE
INSURED BANK PRESUMABLY CONTRACTED.  THE CORPORATION WOULD SUCCEED ONLY
TO THE RIGHTS WHICH THE BANK ITSELF ACQUIRED WHERE ORDINARY AND GOOD
FAITH COMMERCIAL TRANSACTIONS ARE INVOLVED.  BUT PETITIONERS' CONDUCT
HERE WAS NOT INTENDED TO CONFER ANY RIGHT ON THE BANK ITSELF, FOR AS TO
IT THE NOTE WAS AGREED TO BE A NULLITY.  PETITIONERS' CONDUCT WAS
INTENDED TO AND DID HAVE A DIRECT AND INDEPENDENT EFFECT ON UNKNOWN
THIRD PARTIES, AMONG WHOM THE CORPORATION NOW APPEARS.  FN15  THE
POLICY OF THE FEDERAL ACT DOES NOT SEEM TO ME TO LEAVE DEPENDENT ON
LOCAL LAW THE QUESTION WHETHER ONE MAY PLEAD HIS OWN SCHEME TO DECEIVE
A BANK'S CREDITORS AND SUPERVISING AUTHORITIES AS AGAINST THE
CORPORATION.  EVEN THOUGH FEDERAL CRIMINAL SANCTIONS MIGHT NOT BE
APPLICABLE TO THESE FACTS, AND EVEN THOUGH THE DOCTRINE OF DEITRICK V.
GREANEY, 309 U.S. 190, MAY NOT FULLY COMPREHEND THE PRESENT CASE, I
THINK WE NOW MAY BORROW A DOCTRINE OF ESTOPPEL FROM THE SAME SOURCE
FROM WHICH THE COURT BORROWED IT IN THAT CASE, AND TO REACH THE SAME
RESULT. 

FN1  SEC. 34 OF THE JUDICIARY ACT OF 1789, 28 U.S.C. SEC. 725. 

FN2  "HOWEVER TRUE THE FACT MAY BE, THAT THE TRIBUNALS OF THE STATES
WILL ADMINISTER JUSTICE AS IMPARTIALLY AS THOSE OF THE NATION, TO
PARTIES OF EVERY DESCRIPTION, IT IS NOT LESS TRUE, THAT THE
CONSTITUTION ITSELF EITHER ENTERTAINS APPREHENSIONS ON THIS SUBJECT, OR
VIEWS WITH SUCH INDULGENCE THE POSSIBLE FEARS AND APPREHENSIONS OF
SUITORS, THAT IT HAS ESTABLISHED NATIONAL TRIBUNALS FOR THE DECISION OF
CONTROVERSIES BETWEEN ALIENS AND A CITIZEN, OR BETWEEN CITIZENS OF
DIFFERENT STATES."  CHIEF JUSTICE MARSHALL IN BANK OF THE UNITED STATES
V. DEVEAUX, 5 CRANCH 61, 87.  SEE ALSO, DODGE V. WOOLSEY, 18 HOW.  331,
354; BURGESS V. SELIGMAN, 107 U.S. 20, 34; LANKFORD V. PLATTE IRON
WORKS, 235 U.S. 461, 478.  BUT COMPARE FRIENDLY, THE HISTORIC BASIS OF
DIVERSITY JURISDICTION, 41 HARVARD LAW REVIEW 483. 

FN3  ITS EFFECT EVEN IN SUCH CASES SEEMS NOT TO HAVE BEEN DEFINITELY
SETTLED.  IN AN EQUITY CASE IT WAS SAID THAT "THE DOCTRINE APPLIES
THOUGH THE QUESTION OF CONSTRUCTION ARISES NOT IN AN ACTION AT LAW, BUT
IN A SUIT IN EQUITY."  RUHLIN V. NEW YORK LIFE INS. CO., 304 U.S. 202,
205.  THAT CASE WAS IN THE FEDERAL COURTS BY REASON OF DIVERSITY
JURISDICTION.  IN A LATER CASE IN WHICH A SUIT IN EQUITY WAS BROUGHT IN
FEDERAL COURT TO ENFORCE LIABILITY UNDER A FEDERAL STATUTE THE COURT
SAID: "THE RULES OF DECISION ACT DOES NOT APPLY TO SUITS IN EQUITY. 
THE 'LAWS OF THE SEVERAL STATES' 'SHALL BE REGARDED AS RULES OF
DECISION' IN THE COURTS OF THE UNITED STATES, APPLIES ONLY TO THE RULES
OF DECISION IN 'TRIALS AT COMMON LAW' IN SUCH COURTS, BUT APPLIES AS
WELL TO RULES ESTABLISHED BY JUDICIAL DECISION IN THE STATES AS THOSE
ESTABLISHED BY STATUTE.  ...  IN THE CIRCUMSTANCES WE HAVE NO OCCASION
TO CONSIDER THE EXTENT TO WHICH FEDERAL COURTS, IN THE EXERCISE OF THE
AUTHORITY CONFERRED UPON THEM BY CONGRESS TO ADMINISTER EQUITABLE
REMEDIES, ARE BOUND TO FOLLOW STATE STATUTES AND DECISIONS AFFECTING
THOSE REMEDIES."  RUSSELL V. TODD, 309 U.S. 280, 287, 294.  IN ANY
EVENT, THE ESTOPPEL HERE INVOLVED SEEMS NO MORE AN EQUITY MATTER THAN
THE ISSUE OF GOOD-FAITH PURCHASE INVOLVED IN CITIES SERVICE OIL CO. V.
DUNLAP, 308 U.S. 208, WHERE STATE LAW WAS HELD TO GOVERN. 

FN4  PARAGRAPH FOURTH OF 12 U.S.C. SEC. 264(J) EMPOWERS THE
CORPORATION "TO SUE AND BE SUED, COMPLAIN AND DEFEND, IN ANY COURT OF
LAW OR EQUITY, STATE OR FEDERAL.  ALL SUITS OF A CIVIL NATURE AT COMMON
LAW OR IN EQUITY TO WHICH THE CORPORATION SHALL BE A PARTY SHALL BE
DEEMED TO ARISE UNDER THE LAWS OF THE UNITED STATES:  PROVIDED, THAT
ANY SUCH SUIT TO WHICH THE CORPORATION IS A PARTY IN ITS CAPACITY AS
RECEIVER OF A STATE BANK AND WHICH INVOLVES ONLY THE RIGHTS OR
OBLIGATIONS OF DEPOSITORS, CREDITORS, STOCKHOLDERS AND SUCH STATE BANK
UNDER STATE LAW SHALL NOT BE DEEMED TO ARISE UNDER THE LAWS OF THE
UNITED STATES." 

IN A NUMBER OF RESPECTS AND WITH VARYING DEGREES OF EXPLICITNESS THE
ACT ELSEWHERE MAKES REFERENCE TO STATE LAW.  SPECIFIC FEDERAL CRIMINAL
SANCTIONS ARE PROVIDED. 

FN5  A SIMILAR PROVISION WITHOUT MORE IS FOUND IN MANY FEDERAL
STATUTES.  E.G., 15 U.S.C. SEC. 604(RECONSTRUCTION FINANCE
CORPORATION); 12 U.S.C. SEC. 24(NATIONAL BANKS); 12 U.S.C. SEC.
341(FEDERAL RESERVE BANKS); 12 U.S.C. SEC. 1432(FEDERAL HOME LOAN
BANKS); 12 U.S.C. SEC. 1716(C)(3)(NATIONAL MORTGAGE ASSOCIATIONS). 
THIS IS NOT TO SUGGEST, HOWEVER, THAT QUESTIONS NOT SPECIFICALLY DEALT
WITH IN THESE STATUTES CANNOT BE FEDERAL QUESTIONS SIMPLY BECAUSE OF
THE ABSENCE OF AN EXPRESS PROVISION THAT SUITS "SHALL BE DEEMED TO
ARISE UNDER THE LAWS OF THE UNITED STATES." 

FN6  JUDICIAL OPINIONS DISCUSSING VARIOUS ASPECTS OF THE QUESTION
INCLUDE:  WHEATON V. PETERS, 8 PET. 591, 658(1834); KENDALL V. UNITED
STATES, 12 PET. 524, 621(1838); SMITH V. ALABAMA, 124 U.S. 465,
478(1888); BUCHER V. CHESHIRE R. CO., 125 U.S. 555, 583-584(1888);
JUSTICE FIELD, DISSENTING IN BALTIMORE & OHIO R. CO. V. BAUGH, 149 U.S.
368, 394-395; JUSTICES HOLMES AND PITNEY, DISSENTING IN SOUTHERN
PACIFIC CO. V. JENSEN, 244 U.S. 205, 221-222, 230.  SEE ALSO, GEORGE
WHARTON PEPPER, THE BORDER LAND OF FEDERAL AND STATE DECISIONS (1889);
FRANKFURTER, DISTRIBUTION OF JUDICIAL POWER BETWEEN UNITED STATES AND
STATE COURTS, 13 CORNELL LAW QUARTERLY 499; WARREN, NEW LIGHT ON THE
HISTORY OF THE FEDERAL JUDICIARY ACT OF 1789, 37 HARVARD LAW REVIEW 49;
VON MOSCHZISKER, THE COMMON LAW AND OUR FEDERAL JURISPRUDENCE, 74
UNIVERSITY OF PENNSYLVANIA LAW REVIEW 109, 270, 367. 

FN7  THE RESEARCH OF CHARLES WARREN, LEANED ON HEAVILY IN ERIE R. CO.
V. TOMPKINS TO DISCREDIT SWIFT V. TYSON, LED THAT SCHOLAR TO CONCLUDE
THAT UNITED STATES V. HUDSON, 7 CRANCH 32, AND UNITED STATES V.
COOLIDGE, 1 WHEAT.  415, ESTABLISHING THE ABOVE PROPOSITION, WERE
PROBABLY WRONGLY DECIDED.  WARREN, HISTORY OF THE FEDERAL JUDICIARY ACT
OF 1789, 37 HARVARD LAW REVIEW 49, 73.  THE ERROR, IF IT BE ONE,
COMPORTS, HOWEVER, WITH THE PRESENT TENDENCY TO CONSTRICT THE
JURISDICTION OF FEDERAL COURTS, AND I THINK IS LIKELY TO SURVIVE. 

FN8  SIMILARLY, MR. JUSTICE HOLMES'S STATEMENT THAT THERE IS NO
"TRANSCENDENTAL BODY OF LAW OUTSIDE OF ANY PARTICULAR STATE BUT
OBLIGATORY WITHIN IT UNLESS AND UNTIL CHANGED BY STATUTE" WAS MADE WITH
REFERENCE TO "MATTERS THAT ARE NOT GOVERNED BY ANY LAW OF THE UNITED
STATES OR BY ANY STATUTE OF THE STATE."  SEE BLACK & WHITE TAXICAB CO.
V. BROWN & YELLOW TAXICAB CO., 276 U.S. 518, 533. 

FN9  THUS, THE JUDICIARY ARTICLE PROVIDES THAT "THE JUDICIAL POWER
SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER THIS
CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES" MADE UNDER
THEIR AUTHORITY.  IT DOES NOT GIVE ANY DEFINITION OF WHAT ARE CASES IN
LAW AND EQUITY; IT SIMPLY ASSUMES THE EXISTENCE OF A JURISPRUDENCE FROM
WHICH THE COURTS CAN ASCERTAIN THE MEANING OF THOSE TERMS. 

PARTICULARLY IN THE CLAUSES DEALING WITH THE RIGHTS OF THE
INDIVIDUAL, THE CONSTITUTION USES WORDS AND PHRASES BORROWED FROM THE
COMMON LAW, MEANINGLESS WITHOUT THAT BACKGROUND, AND OBVIOUSLY MEANT TO
CARRY THEIR COMMON-LAW IMPLICATIONS.  THUS, WE FIND IN IT THE
FOLLOWING:  "CONVICTED"; "INDICTMENT"; "TREASON, FELONY, AND BREACH OF
THE PEACE"; "PIRACIES AND FELONIES"; "PRIVILEGE OF THE WRIT OF HABEAS
CORPUS"; "BILL OF ATTAINDER OR EX POST FACTO LAW"; "BRIBERY"; "ORIGINAL
JURISDICTION"; AND "APPELLATE JURISDICTION BOTH AS TO LAW AND FACT." 
IN THE BILL OF RIGHTS AMENDMENTS, THE NECESSITY FOR RESORT TO THE
COMMON LAW FOR CONSTITUTIONAL INTERPRETATION IS EVEN MORE OBVIOUS. 
HERE WE FIND:  "UNREASONABLE SEARCHES AND SEIZURES"; "WARRANTS";
"PRESENTMENT OR INDICTMENT OF A GRAND JURY"; "DUE PROCESS OF LAW";
"RIGHT TO A SPEEDY AND PUBLIC TRIAL BY AN IMPARTIAL JURY"; "IN SUITS AT
COMMON LAW"; AND "NO FACT TRIED BY A JURY SHALL BE OTHERWISE REEXAMINED
IN ANY COURT OF THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE
COMMON LAW." 

FN10  FOR EXAMPLE, THE COMMON-LAW DOCTRINES OF CONFLICT OF LAWS
WORKED OUT IN A UNITARY SYSTEM TO DEAL WITH CONFLICTS BETWEEN DOMESTIC
AND TRULY FOREIGN LAW MAY NOT APPLY UNMODIFIED IN CONFLICTS BETWEEN THE
LAWS OF STATES WITHIN OUR FEDERAL SYSTEM WHICH ARE AFFECTED BY THE FULL
FAITH AND CREDIT OR OTHER RELEVANT CLAUSE OF THE CONSTITUTION. 

FN11  12 U.S.C. SEC. 264(D). 

FN12  12 U.S.C. SEC. 264(I), (K), (L). 

FN13  COMPARE CENTRAL VERMONT RY. CO. V. WHITE, 238 U.S. 507;
SOUTHERN EXPRESS CO. V. BYERS, 240 U.S. 612; CHESAPEAKE & OHIO RY. CO.
V. KELLEY, 241 U.S. 485; WESTERN UNION TELEGRAPH CO. V. BOEGLI, 251
U.S. 315; WESTERN UNION TELEGRAPH CO. V. ESTEVE BROS. & CO., 256 U.S.
566; WESTERN UNION TELEGRAPH CO. V. PRIESTER, 276 U.S. 252; CHESAPEAKE
& OHIO RY. CO. V. KUHN, 284 U.S. 44; LOCAL LOAN CO. V. HUNT, 292 U.S.
234; JENKINS V. KURN, 313 U.S. 256; ROYAL INDEMNITY CO. V. UNITED
STATES, 313 U.S. 289; O'BRIEN V. WESTERN UNION TELEGRAPH CO., 113 F.2D
539. 

FN14  CAMPBELL V. HAVERHILL, 155 U.S. 610; MCCLAINE V. RANKIN, 197
U.S. 154; CHATTANOOGA FOUNDRY V. ATLANTA, 203 U.S. 390; O'SULLIVAN V.
FELIX, 233 U.S. 318; SEABOARD AIR LINE RY. CO. V. UNITED STATES, 261
U.S. 299; BROWN V. UNITED STATES, 263 U.S. 78; UNITED STATES V.
GUARANTY TRUST CO., 293 U.S. 340; BOARD OF COMMISSIONERS V. UNITED
STATES, 308 U.S. 343; RAWLINGS V. RAY, 312 U.S. 96; JUST V. CHAMBERS,
312 U.S. 383. 

FN15  THE REASONS GIVEN BY THE OPINION OF MR. JUSTICE FRANKFURTER FOR
DECLINING TO APPLY THE DOCTRINE OF EQUITABLE ESTOPPEL SEEM INADEQUATE. 
TO INSIST THAT THE $5,000 NOTE IN QUESTION DOES NOT APPEAR FROM THE
RECORD TO HAVE HAD "ANY RELATION TO THE BANK'S INSOLVENCY OR THE
CORPORATION'S UNDERTAKING AS INSURER" IS TO PART COMPANY WITH THE
REALITIES OF THE PERIOD IN QUESTION, WHEN SMALL BANKS - AND LARGE ONES
AS WELL - WERE OPERATING ON PERILOUSLY NARROW MARGINS OF SOLVENCY, IF
ANY.  TO HOLD THAT THE CORPORATION IS TO BE JUDGED AS A MERE PRIVATE
PLEDGEE OF A PARTICULAR PIECE OF PAPER IS TO IGNORE THE COMPREHENSIVE
PUBLIC CHARACTER OF ITS FUNCTION.  AND THE WRONG TO IT WAS SUSTAINED
WHEN IT BECAME COMMITTED TO INSURE THE BANK - NOT LATER WHEN, AS A STEP
TO WORKING ITS WAY OUT OF LOSS, IT TOOK ASSETS ALREADY EQUITABLY ITS
OWN AS A PLEDGE AND PUT UP MONEY FOR A PLAN TO CONTINUE BANKING
FACILITIES TO THE COMMUNITY.  TO SAY THAT THE NOTE HAD BEEN CHARGED OFF
IS TO STRESS THE IRRELEVANT.  THIS WAS, ADMITTEDLY, LONG AFTER THE
CORPORATION HAD BECOME BOUND AS THE BANK'S INSURER.  IT ALSO ATTRIBUTES
TO THE "CHARGE-OFF" AN UNWARRANTED SIGNIFICANCE.  THE CLASSIFICATION OF
THIS PAPER AS INADMISSIBLE FOR A COMMERCIAL BANK WOULD HAVE BEEN
JUSTIFIED BY ITS OBVIOUS "SLOW" CHARACTER, OR MAY HAVE BEEN DUE TO MERE
LACK OF INFORMATION AS TO THE ABILITY OF A NONRESIDENT DEBTOR TO MEET
IT.  IT IS NO ACKNOWLEDGMENT OR NOTICE OF A LEGAL DEFECT IN THE PAPER. 

..END :














U.S. V. CAROLINA CARRIERS CORP., 315 U.S. 475 


NO. 197.  ARGUED JANUARY 16, 1942.  - DECIDED MARCH 2, 1942.  - 38
F.SUPP.  549, AFFIRMED. 


1.  UNDER THE "GRANDFATHER CLAUSE" OF THE MOTOR CARRIER ACT OF 1935,
THE INTERSTATE COMMERCE COMMISSION'S AUTHORIZATION OF OPERATION AS A
COMMON CARRIER BY MOTOR VEHICLE WITHIN A SPECIFIED "TERRITORY" MAY
PERMIT SERVICE TO ALL POINTS IN PART OF THE AREA AND TO DESIGNATED
POINTS IN OTHER PARTS.  P. 480. 

2.  THE PRECISE DELINEATION OF THE AREA OR THE SPECIFICATION OF
LOCALITIES WHICH MAY BE SERVED IS FOR THE COMMISSION; AND ONLY WHERE
ERROR IS PATENT MAY ITS DETERMINATION BE SET ASIDE.  P. 480. 

3.  A HOLDING OUT TO SERVE A SPECIFIED AREA DOES NOT IN ITSELF
CONSTITUTE "BONA FIDE OPERATION" WITHIN THE MEANING OF THE ACT; ACTUAL
AND SUBSTANTIAL SERVICE IS REQUIRED.  P. 480. 

4.  IN THE AUTHORIZATION OF OPERATION AS A COMMON CARRIER UNDER THE
"GRANDFATHER CLAUSE," THERE IS NO STATUTORY WARRANT FOR APPLYING TO
IRREGULAR ROUTE CARRIERS A DIFFERENT OR STRICTER TEST AS TO COMMODITIES
WHICH MAY BE CARRIED THAN IS APPLIED TO REGULAR ROUTE CARRIERS.  P.
484. 

5.  IN AUTHORIZING OPERATION AS A COMMON CARRIER UNDER THE
"GRANDFATHER CLAUSE" BY AN IRREGULAR ROUTE CARRIER IN THIS CASE, THE
INTERSTATE COMMERCE COMMISSION DETERMINED THAT ONLY CERTAIN COMMODITIES
COULD BE CARRIED AND THAT SOME COULD BE TRANSPORTED ONLY BETWEEN
DESIGNATED POINTS IN THE TERRITORY.  HELD, THAT THE BASIC OR ESSENTIAL
FINDINGS REQUIRED TO SUPPORT THE COMMISSION'S ORDER WERE LACKING.  P.
488. 

(A)  IF AN APPLICANT FOR COMMON CARRIER RIGHTS UNDER THE "GRANDFATHER
CLAUSE" HAS, DURING THE CRITICAL PERIOD, CARRIED A WIDE VARIETY OF
GENERAL COMMODITIES, HE CAN NOT NECESSARILY BE DENIED THE RIGHT TO
CARRY OTHERS OF THE SAME CLASS MERELY BECAUSE HE HAS NEVER CARRIED THEM
BEFORE; NOR CAN HE NECESSARILY BE RESTRICTED TO THOSE COMMODITIES WHICH
HE CARRIED WITH MORE FREQUENCY AND IN GREATER QUANTITIES THAN HE DID
OTHERS.  P. 483. 

(B)  NOR DOES THE FACT THAT SOME OF THE ARTICLES WERE CARRIED BEFORE
JUNE 1, 1935, BUT NOT SINCE, NECESSARILY MEAN THAT THEY SHOULD BE
EXCLUDED FROM THE PERMIT.  P. 484. 

(C)  THE QUESTIONS ARE WHETHER THE APPLICANT'S SERVICE WITHIN THE
TERRITORY WAS SUFFICIENTLY REGULAR AND WHETHER HIS COVERAGE OF
COMMODITIES WAS SUFFICIENTLY REPRESENTATIVE TO SUPPORT A FINDING THAT
HE WAS IN "BONA FIDE OPERATION" AS A "COMMON CARRIER" OF THE GROUP OF
COMMODITIES OR OF THE CLASS OR CLASSES OF PROPERTY DURING THE CRITICAL
PERIOD.  P. 484. 

(D)  IF THE APPLICANT ESTABLISHES THAT HE WAS A "COMMON CARRIER" OF A
GROUP OF COMMODITIES OR OF AN ENTIRE CLASS OR CLASSES OF PROPERTY AND
WAS IN "BONA FIDE OPERATION" DURING THE CRITICAL PERIOD IN A SPECIFIED
TERRITORY, RESTRICTIONS AS TO COMMODITIES WITHIN SUCH CLASSES WHICH MAY
BE MOVED IN ANY ONE DIRECTION OR BETWEEN DESIGNATED POINTS ARE NOT
JUSTIFIED.  P. 486. 

(E)  ONCE THE APPLICANT HAS ESTABLISHED HIS COMMON CARRIER STATUS AS
RESPECTS PARTICULAR COMMODITIES, SHIPMENTS TO ANY PARTS OF THE
AUTHORIZED TERRITORY, OR TO ANY OF THE AUTHORIZED POINTS THEREIN,
SHOULD BE PERMITTED, IN THE ABSENCE OF EVIDENCE THAT THE APPLICANT AS
RESPECTS CARRIAGE BETWEEN SPECIFIED POINTS HAD RESTRICTED ITS
UNDERTAKING.  P. 487. 

UNITED STATES ET AL. V. CAROLINA FREIGHT CARRIERS CORP. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF NORTH CAROLINA. 

APPEAL FROM A DECREE SETTING ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL UNDER SEC. 210(28 U.S.C. SEC. 47A) AND SEC. 238 OF
THE JUDICIAL CODE AS AMENDED (28 U.S.C. SEC. 345), TO REVIEW A FINAL
DECREE OF A DISTRICT COURT OF THREE JUDGES (28 U.S.C. SEC. 47) WHICH
SET ASIDE (38 F.SUPP.  549) AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION (24 M.C.C. 305) GRANTING APPELLEE A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY AS A COMMON CARRIER BY MOTOR VEHICLE UNDER
THE SO-CALLED "GRANDFATHER CLAUSE" (SEC. 206(A)) OF THE MOTOR CARRIER
ACT OF 1935(49 STAT. 543, 551, 49 U.S.C. SEC. 306), NOW DESIGNATED AS
PART II OF THE INTERSTATE COMMERCE ACT.  54 STAT. 919. 

APPELLEE'S PREDECESSOR APPLIED FOR SUCH A CERTIFICATE AUTHORIZING
OPERATION AS A "COMMON CARRIER" BY MOTOR VEHICLE OF "GENERAL
COMMODITIES"  FN1  BETWEEN ALL POINTS "IN SOUTH CAROLINA, NORTH
CAROLINA, DELAWARE, NEW JERSEY, CONNECTICUT, RHODE ISLAND,
MASSACHUSETTS, THOSE IN VIRGINIA EAST OF AND INCLUDING THE SHENANDOAH
VALLEY, THOSE IN MARYLAND AND PENNSYLVANIA ON AND EAST OF U.S. HIGHWAY
11, AND THOSE IN NEW YORK EAST OF BINGHAMTON AND SOUTH OF ALBANY; AND
BETWEEN CHERRYVILLE (N.C.)  AND BOSTON, MASS., THROUGH HENDERSON, N.C.,
RICHMOND, VA., BALTIMORE, MD., PHILADELPHIA, PA., AND NEW YORK, OVER
IRREGULAR ROUTES."  THE COMMISSION AUTHORIZED THE ISSUANCE OF A
CERTIFICATE BUT RESTRICTED ITS SCOPE IN THREE WAYS.  (1) IT CUT DOWN
THE GEOGRAPHICAL AREA WHICH COULD BE SERVED BY APPELLEE, AND IN PARTS
OF THAT AREA LIMITED THE SERVICE TO DESIGNATED POINTS.  (2) IT ALLOWED
APPELLEE TO HAUL ONLY CERTAIN SPECIFIED COMMODITIES OUT OF A LARGER
LIST PREVIOUSLY HAULED.  (3) IT DID NOT PERMIT APPELLEE TO HAUL ALL OF
THOSE SPECIFIED COMMODITIES BETWEEN ALL OF THE POINTS IN THE AUTHORIZED
TERRITORY, BUT ALLOWED IT TO HAUL ONLY CERTAIN COMMODITIES BETWEEN
GIVEN POINTS.  ITS FINDING CONTAINING THOSE RESTRICTIONS (24 M.C.C., P.
309-310) READS AS FOLLOWS: 

"WE FIND THAT APPLICANT'S PREDECESSOR IN INTEREST WAS ON JUNE 1,
1935, AND CONTINUOUSLY SINCE IT AND ITS PREDECESSOR HAVE BEEN, IN BONA
FIDE OPERATION AS A COMMON CARRIER BY MOTOR VEHICLE, IN INTERSTATE OR
FOREIGN COMMERCE (1) OF COTTON YARN FROM ALL POINTS IN GASTON, LINCOLN,
CLEVELAND, RUTHERFORD, MCDOWELL, BURKE, CATAWBA, ALEXANDER, IREDELL,
ROWAN, DAVIDSON, AND DAVIE COUNTIES, N.C., TO HAGERSTOWN, MD., NEW
YORK, N.Y., PAWTUCKET AND PROVIDENCE, R.I., ALL POINTS IN PENNSYLVANIA
ON AND EAST OF U.S. HIGHWAY 11, AND POINTS IN MIDDLESEX, UNION, ESSEX,
HUDSON, PASSAIC, BERGEN, SOMERSET, AND MORRIS COUNTIES, N.J., (2) OF
ASBESTOS TEXTILE PRODUCTS FROM CHARLOTTE, N.C., TO PHILADELPHIA AND
NORTH WALES, PA., TRENTON, NEWARK, PASSAIC, AND PATERSON, N.J., NEW
YORK, N.Y., MIDDLETOWN, CONN., PROVIDENCE AND PAWTUCKET, R.I., AND
BOSTON AND HUDSON, MASS., (3) OF SUPPLIES AND MATERIALS USED IN THE
MANUFACTURE OF ASBESTOS TEXTILE PRODUCTS FROM HARRISON AND PERTH AMBOY,
N.J., TO CHARLOTTE, N.C., AND EMPTY SPOOLS AND BOXES IN THE REVERSE
DIRECTION, (4) OF PETROLEUM PRODUCTS IN CONTAINERS FROM SEWAREN, N.J.,
AND MARCUS HOOK, PA., TO COLUMBIA AND GREENVILLE, S.C., AND TO ALL
POINTS IN NORTH CAROLINA, (5) OF LINOLEUM FROM PAULSBORO, N.J., MARCUS
HOOK, PA., AND EAST WALPOLE, MASS., TO POINTS IN NORTH CAROLINA AND TO
SPARTANBURG AND GREENVILLE, S.C., (6) OF CANNED GOODS FROM BALTIMORE,
MD., TO SHELBY, N.C., (7) OF BEER AND ALE FROM NEWARK, N.J., TO
GASTONIA AND WADESBORO, N.C., AND (8) OF ROOFING AND SCREEN WIRE FROM
YORK, PA., TO ALL POINTS IN NORTH CAROLINA, ALL OVER IRREGULAR ROUTES;
THAT APPLICANT IS ENTITLED TO A CERTIFICATE AUTHORIZING CONTINUATION OF
SUCH OPERATION; AND THAT THE APPLICATION IN ALL OTHER RESPECTS SHOULD
BE DENIED." 

THE DISTRICT COURT HELD THAT SUCH RESTRICTIONS WERE NOT AUTHORIZED BY
THE STATUTE.  IT SAID: 

"IT IS, OF COURSE, REASONABLE TO LIMIT THE CERTIFICATE TO THE TYPE OF
SERVICE RENDERED BY THE CARRIER DURING THE GRANDFATHER PERIOD, AND TO
LIMIT THE TERRITORY TO THAT WITHIN WHICH SUBSTANTIAL SERVICE OF THAT
TYPE HAS BEEN RENDERED; BUT IT IS UNREASONABLE TO LIMIT THE CERTIFICATE
OF ONE WHO HAS FUNCTIONED AS A GENERAL CARRIER TO THE SPECIFIC
COMMODITIES CARRIED AND THE SPECIFIC POINTS SERVED.  THE LAW CANNOT
REASONABLY BE CONSTRUED AS AUTHORIZING SUCH LIMITATION." 

IT FURTHER NOTED THAT SUCH RESTRICTIONS HAVE NOT BEEN IMPOSED ON
REGULAR ROUTE CARRIERS AND THAT CONGRESS HAS MADE NO SUCH DISTINCTION
BETWEEN THEM AND IRREGULAR ROUTE CARRIERS LIKE APPELLEE. 

I. WE THINK THE COMMISSION WAS JUSTIFIED IN THE RESTRICTIONS WHICH IT
PLACED ON THE GEOGRAPHICAL SCOPE OF APPELLEE'S OPERATIONS.  SEC. 206(A)
OF THE ACT AUTHORIZES THE COMMISSION TO ISSUE A CERTIFICATE WITHOUT A
SHOWING OF PUBLIC CONVENIENCE AND NECESSITY IF THE CARRIER OR ITS
PREDECESSOR IN INTEREST WAS "IN BONA FIDE OPERATION AS A COMMON CARRIER
BY MOTOR VEHICLE ON JUNE 1, 1935, OVER THE ROUTE OR ROUTES OR WITHIN
THE TERRITORY FOR WHICH APPLICATION IS MADE AND HAS SO OPERATED SINCE
THAT TIME."  SEC. 208(A) REQUIRES THAT THE CERTIFICATE SPECIFY "THE
ROUTES OVER WHICH, THE FIXED TERMINI, IF ANY, BETWEEN WHICH, AND THE
INTERMEDIATE AND OFF-ROUTE POINTS, IF ANY, AT WHICH, AND IN CASE OF
OPERATIONS NOT OVER SPECIFIED ROUTES OR BETWEEN FIXED TERMINI, THE
TERRITORY WITHIN WHICH, THE MOTOR CARRIER IS AUTHORIZED TO OPERATE." 
IT IS CLEAR FROM THESE PROVISIONS THAT THE POWER OF THE COMMISSION TO
AUTHORIZE FUTURE OPERATIONS WITHIN A DESIGNATED "TERRITORY," RATHER
THAN OVER SPECIFIED ROUTES OR BETWEEN FIXED TERMINI, FITS THE PECULIAR
REQUIREMENTS OF IRREGULAR ROUTE OPERATORS SUCH AS APPELLEE.  AUTHORITY
TO OPERATE WITHIN A SPECIFIED "TERRITORY" MAY INCLUDE PERMISSION TO
SERVICE ALL POINTS IN THAT AREA.  ON THE OTHER HAND IT MAY BE
RESTRICTED TO DESIGNATED POINTS THEREIN.  OR AS IN THE INSTANT CASE, IT
MAY EXTEND TO ALL POINTS IN A PART OF THAT AREA AND TO SELECTED
LOCALITIES IN ANOTHER PART.  THE PRECISE DELINEATION OF THE AREA OR THE
SPECIFICATION OF LOCALITIES WHICH MAY BE SERVICED HAS BEEN ENTRUSTED BY
THE CONGRESS TO THE COMMISSION.  ALTON R. CO. V. UNITED STATES, ANTE,
P. 15.  THE ACT PROVIDES THE TEST OF "BONA FIDE OPERATION."  THAT
STANDARD CARRIES THE CONNOTATION OF SUBSTANTIALITY.  IT ALSO MAKES
CLEAR THAT A HOLDING OUT TO SERVE A SPECIFIED AREA IS NOT ALONE
SUFFICIENT.  IT IS "ACTUAL RATHER THAN POTENTIAL OR SIMULATED SERVICE"
WHICH IS REQUIRED.  MCDONALD V. THOMPSON, 305 U.S. 263, 266. 
SUBSTANTIAL, AS DISTINGUISHED FROM INCIDENTAL, SPORADIC, OR INFREQUENT,
SERVICE IS REQUIRED.  SUBSTANTIAL SERVICE ACTUALLY RENDERED MAY HAVE
BEEN CONFINED TO NARROW LIMITS.  LOVING V. UNITED STATES, 32 F.SUPP. 
464, AFF'D 310 U.S. 609.  ABILITY TO RENDER THE SERVICE THROUGHOUT THE
WIDE REACHES OF THE TERRITORY, WHICH THE APPLICANT PROFESSED TO BE
WILLING TO SERVE, MAY NOT HAVE EXISTED.  FURTHERMORE, THE
CHARACTERISTICS OF THE TRANSPORTATION SERVICE RENDERED ARE RELEVANT TO
THE TERRITORIAL SCOPE OF THE OPERATIONS WHICH THE COMMISSION MAY
AUTHORIZE.  ALTON R. CO. V. UNITED STATES, SUPRA.  IN ADDITION, THE
COMMISSION, IN DETERMINING THE PRECISE TERRITORY WHICH MAY BE SERVED BY
A PARTICULAR CARRIER, CANNOT BE UNMINDFUL OF ITS RESPONSIBILITY TO
COORDINATE THE VARIOUS TRANSPORTATION AGENCIES WHICH CONSTITUTE OUR
NATIONAL TRANSPORTATION SYSTEM.  S. REP. NO. 482, 74TH CONG., 1ST
SESS.; H. REP. NO. 1645, 74TH CONG., 1ST SESS.  THIS DOES NOT MEAN THAT
THE RIGHT TO THE STATUTORY GRANT MAY BE WITHHELD OR CUT DOWN BECAUSE
THE COMMISSION DISAPPROVES OF THE COMPETITIVE CONDITIONS WHICH MAY BE
CREATED IF THE APPLICATION IS GRANTED.  BUT ITS RESPONSIBILITY TO BRING
GREATER ORDER AND STABILITY TO THE TRANSPORTATION SYSTEM THAN HAD
EARLIER OBTAINED (S. DOC. NO. 152, 73D CONG., 2D SESS.) IS AN
ADDITIONAL REASON FOR ITS INSISTENCE UPON A SHOWING OF SUBSTANTIAL
SERVICE IN THAT TERRITORY WHICH IS SOUGHT TO BE COVERED BY A
CERTIFICATE UNDER THE "GRANDFATHER CLAUSE." 

AS WE INDICATED IN ALTON R. CO. V. UNITED STATES, SUPRA, THE PURPOSE
OF THE "GRANDFATHER CLAUSE" WAS TO ASSURE THOSE TO WHOM CONGRESS HAD
EXTENDED ITS BENEFITS A "SUBSTANTIAL PARITY BETWEEN FUTURE OPERATIONS
AND PRIOR BONA FIDE OPERATIONS."  WE CANNOT SAY THAT THAT WAS DENIED IN
THIS CASE, IF THE LIMITATIONS ON THE TERRITORIAL SCOPE OF THE
OPERATIONS ARE ALONE CONSIDERED.  WHILE SERVICE TO AND FROM ALL POINTS
IN THE STATES INCLUDED IN THE APPLICATION WAS NOT ALLOWED, THE
REDUCTION WAS DETERMINED BY THE STANDARD OF SUBSTANTIALITY OF SERVICE. 
AND CONSIDERATION WAS GIVEN TO THE CHARACTERISTICS OF IRREGULAR ROUTE
CARRIERS AND THEIR ROLE IN THE NATIONAL TRANSPORTATION SYSTEM.  THAT
INVOLVED A WEIGHING OF SPECIFIC EVIDENCE IN LIGHT OF THE COMPLEXITIES
OF THIS TRANSPORTATION SERVICE.  THE JUDGMENT REQUIRED IS HIGHLY
EXPERT.  ONLY WHERE THE ERROR IS PATENT MAY WE SAY THAT THE COMMISSION
TRANSGRESSED.  THAT IS NOT THIS CASE. 

II.  WE HAVE DOUBTS, HOWEVER, AS TO THE RESTRICTIONS WHICH THE
COMMISSION HAS PLACED ON THE ARTICLES WHICH APPELLEE MAY CARRY.  SEC.
203(A)(14) DEFINED  FN2  THE TERM "COMMON CARRIER BY MOTOR VEHICLE" AS
ONE WHO "UNDERTAKES  ...  TO TRANSPORT PASSENGERS OR PROPERTY, OR ANY
CLASS OR CLASSES OF PROPERTY, FOR THE GENERAL PUBLIC IN INTERSTATE OR
FOREIGN COMMERCE BY MOTOR VEHICLE FOR COMPENSATION, WHETHER OVER
REGULAR OR IRREGULAR ROUTES."  THE COMMISSION RULED THAT SINCE A
"COMMON CARRIER" MAY TRANSPORT ONLY A "CLASS OR CLASSES OF PROPERTY,"
THE AUTHORITY GRANTED UNDER THE "GRANDFATHER CLAUSE" OF SEC. 206(A)
"SHOULD REFLECT ANY LIMITATION IN THE UNDERTAKING" OF THE COMMON
CARRIER "AS INDICATED BY THE SERVICE ACTUALLY RENDERED ON AND SINCE THE
STATUTORY DATES."  IT ACCORDINGLY PROCEEDED TO ELIMINATE COMMODITIES
WHICH, THOUGH OF THE SAME GENERAL CLASS AS THE OTHERS, HAD BEEN CARRIED
BEFORE BUT NOT AFTER JUNE 1, 1935.  IT FURTHER RESTRICTED FUTURE
OPERATIONS TO THOSE COMMODITIES WHICH PRIOR AND SUBSEQUENT TO JUNE 1,
1935, HAD BEEN CARRIED IN SUBSTANTIAL AMOUNTS AND WITH A DEGREE OF
REGULARITY.  WE WOULD NOT DISTURB THOSE CONCLUSIONS IF ONLY A QUESTION
AS TO THE WEIGHT OF THE EVIDENCE WAS INVOLVED.  BUT WE ARE NOT
SATISFIED THAT THE COMMISSION APPLIED THE PROPER CRITERION IN REACHING
ITS CONCLUSION THAT ONLY SPECIFIED COMMODITIES COULD BE CARRIED IN THE
FUTURE. 

SEC. 206(A) REQUIRES A SHOWING THAT THE APPLICANT, OR ITS
PREDECESSOR, WAS "IN BONA FIDE OPERATION AS A COMMON CARRIER" ON JUNE
1, 1935, AND "SINCE THAT TIME."  BY SEC. 208(A) THE CERTIFICATE MUST
SPECIFY "THE SERVICE TO BE RENDERED" BY THE CARRIER.  AS WE HAVE NOTED,
A "COMMON CARRIER BY MOTOR VEHICLE" WAS DEFINED IN SEC. 203(A)(14) AS
ONE WHO "UNDERTAKES" TO TRANSPORT "PASSENGERS OR PROPERTY, OR ANY CLASS
OR CLASSES OF PROPERTY, FOR THE GENERAL PUBLIC."  THAT DEFINITION IS
THE SAME FOR IRREGULAR AND REGULAR ROUTE CARRIERS.  IT IS PLAIN THAT A
CARRIER'S HOLDING OUT AND ACTUAL PERFORMANCE MAY BE LIMITED TO A FEW
ARTICLES ONLY.  THAT IS TO SAY, HE MAY BE A COMMON CARRIER ONLY OF A
RESTRICTED NUMBER OF COMMODITIES.  SEE GALVESTON TRUCK LINE CORP., 22
M.C.C. 451, 467.  OR THE SERVICE ACTUALLY RENDERED MAY HAVE BEEN
CONFINED TO SUCH A FEW COMMODITIES THAT HIS HOLDING OUT OR WILLINGNESS
TO CARRY A MUCH LARGER CLASS MAY BE DISREGARDED.  LOVING V. UNITED
STATES, SUPRA, WAS SUCH A CASE.  ON THE OTHER HAND, IF THE APPLICANT
HAS CARRIED A WIDE VARIETY OF GENERAL COMMODITIES, HE CANNOT
NECESSARILY BE DENIED THE RIGHT TO CARRY OTHERS OF THE SAME CLASS
MERELY BECAUSE HE NEVER CARRIED THEM BEFORE.  AND WHERE HE HAS CARRIED
A WIDE VARIETY OF GENERAL COMMODITIES, HE CANNOT NECESSARILY BE
RESTRICTED TO THOSE WHICH HE CARRIED WITH MORE FREQUENCY AND IN GREATER
QUANTITIES THAN THE OTHERS.  SEE H.B. CHURCH TRUCK SERVICE CO., 27
M.C.C. 191, 197; HIGHWAY MOTOR FREIGHT LINES, INC., 23 M.C.C. 621,
636.  THE COMMISSION MAY NOT ATOMIZE HIS PRIOR SERVICE, PRODUCT BY
PRODUCT, SO AS TO RESTRICT THE SCOPE OF HIS OPERATIONS, WHERE THERE IS
SUBSTANTIAL EVIDENCE IN ADDITION TO HIS HOLDING OUT THAT HE WAS IN
"BONA FIDE OPERATION" AS A "COMMON CARRIER" OF A LARGE GROUP OF
COMMODITIES OR OF A WHOLE CLASS OR CLASSES OF PROPERTY.  THERE MIGHT BE
SUBSTANTIAL EVIDENCE OF SUCH AN UNDERTAKING THOUGH THE EVIDENCE AS TO
ANY ONE ARTICLE WAS NOT SUBSTANTIAL.  THE BROAD SWEEP OF HIS PRIOR
SERVICE MAY INDEED HAVE MADE THE CARRIAGE OF ANY ONE COMMODITY
IRREGULAR AND INFREQUENT.  YET, VIEWED AS A WHOLE RATHER THAN AS A
GROUP OF SEPARATE AND UNRELATED ITEMS, HIS PRIOR ACTIVITIES MAY SATISFY
THE TEST OF "BONA FIDE OPERATION" AS A "COMMON CARRIER" WITHIN THE
SCOPE OF HIS HOLDING OUT.  THE FACT THAT SOME OF THE ARTICLES MAY HAVE
BEEN CARRIED BEFORE BUT NOT AFTER JUNE 1, 1935, MAY OF COURSE INDICATE
AN ABANDONMENT OF THE PRIOR UNDERTAKING.  SEE UNITED STATES V. MAHER,
307 U.S. 148.  BUT IT DOES NOT NECESSARILY MEAN THAT THEY SHOULD BE
STRICKEN FROM THE CERTIFICATE, SINCE THE NATURAL AND NORMAL COURSE OF
HIS BUSINESS MAY REVEAL A CONTINUOUS UNDERTAKING TO TRANSPORT ANY OR
ALL COMMODITIES EMBRACED WITHIN THE GROUP OR THE CLASS.  THAT IS TO
SAY, HE MAY HAVE BEEN A COMMON CARRIER OF A LARGE GROUP OF GENERAL
COMMODITIES OR OF AN ENTIRE CLASS OF PROPERTY BOTH BEFORE AND AFTER THE
CRITICAL DATE THOUGH THE SPECIFIC COMMODITIES CARRIED VARIED
CONSIDERABLY.  THE QUESTIONS ARE WHETHER HIS SERVICE WITHIN THE
TERRITORY IN QUESTION WAS SUFFICIENTLY REGULAR, AND WHETHER HIS
COVERAGE OF COMMODITIES WAS SUFFICIENTLY REPRESENTATIVE, TO SUPPORT A
FINDING THAT HE WAS IN "BONA FIDE OPERATION" AS A "COMMON CARRIER" OF
THE GROUP OF COMMODITIES, OR OF THE CLASS OR CLASSES OF PROPERTY,
DURING THE PERIODS IN QUESTION.    THE COMMISSION IN THIS CASE
AUTHORIZED THE CARRIAGE OF ABOUT A DOZEN KINDS OF COMMODITIES, THOUGH
IN PRIOR OPERATIONS ABOUT THREE TIMES THAT NUMBER HAD BEEN CARRIED.  IT
IS NOT OUR FUNCTION TO WEIGH THE EVIDENCE.  HENCE WE INTIMATE NO
OPINION AS TO WHETHER MORE COMMODITIES SHOULD HAVE BEEN INCLUDED HAD
THE PROPER CRITERION BEEN EMPLOYED.  BUT WE CONCLUDE THAT THERE IS NO
STATUTORY WARRANT FOR APPLYING TO IRREGULAR ROUTE CARRIERS A DIFFERENT
OR STRICTER TEST AS TO COMMODITIES WHICH MAY BE CARRIED THAN IS APPLIED
TO REGULAR ROUTE CARRIERS.  THE DIFFERENCE BETWEEN THOSE TYPES OF
CARRIERS MAY WELL JUSTIFY A SHARP DELIMITATION OF THE FAR FLUNG
TERRITORY WHICH AN IRREGULAR ROUTE CARRIER MAY PROFESS TO SERVE.  BUT,
ONCE THE TERRITORY HAS BEEN DEFINED, THE STATUTORY TEST OF WHETHER AN
APPLICANT WAS A "COMMON CARRIER" BY MOTOR VEHICLE IN "BONA FIDE
OPERATION" DURING THE CRITICAL PERIODS IS THE SAME FOR THE IRREGULAR
AND THE REGULAR ROUTE CARRIER.  WE ARE NOT CONFIDENT THAT THE
COMMISSION HAS APPROACHED THE PROBLEM IN THAT WAY.  FOR IT HAS
REPEATEDLY STATED, BEGINNING WITH POWELL BROTHERS TRUCK LINES, 9 M.C.C.
785, 791-792, THAT: 

"AUTHORITY TO TRANSPORT GENERAL COMMODITIES THROUGHOUT A WIDE
TERRITORY OVER IRREGULAR AND UNSPECIFIED ROUTES PURSUANT TO THE
'GRANDFATHER' CLAUSE OF THE ACT SHOULD BE GRANTED TO A CARRIER ONLY
WHEN SUCH CARRIER'S RIGHT THERETO HAS BEEN PROVED BY SUBSTANTIAL
EVIDENCE.  TO DO OTHERWISE WOULD CREATE THE VERY ILLS WHICH REGULATION
IS DESIGNED TO ALLEVIATE, NAMELY, CONGESTION OF HIGHWAYS, DESTRUCTIVE
RATE PRACTICES, AND UNBRIDLED COMPETITION.  COMMON CARRIERS WHICH ARE
EXPECTED TO MAINTAIN REGULAR SERVICE FOR THE MOVEMENT OF FREIGHT IN
WHATEVER QUANTITIES OFFERED TO AND FROM ALL POINTS ON SPECIFIED ROUTES
CANNOT OPERATE ECONOMICALLY AND EFFICIENTLY IF OTHER CARRIERS ARE
PERMITTED TO INVADE SUCH ROUTES FOR THE SOLE PURPOSE OF HANDLING THE
CREAM OF THE TRAFFIC AVAILABLE THEREON IN SO-CALLED IRREGULAR-ROUTE
SERVICE." 

AND SEE MERCHANTS PARCEL DELIVERY CO., 21 M.C.C. 93; LANGER TRANSPORT
CORP., 23 M.C.C. 302; LETT & CO. OF INDIANA, 26 M.C.C. 159. 

INSOFAR AS THAT VIEW ESTABLISHES A DIFFERENT TEST FOR COMMODITIES
WHICH MAY BE CARRIED BY IRREGULAR ROUTE OPERATORS THAN FOR COMMODITIES
WHICH MAY BE CARRIED BY REGULAR ROUTE OPERATORS, IT IS ERRONEOUS AS A
MATTER OF LAW.  FOR FACTS SUFFICIENT TO ESTABLISH THAT A PERSON IS A
"COMMON CARRIER" BY MOTOR VEHICLE IN "BONA FIDE OPERATION" IN THE ONE
CASE ARE SUFFICIENT IN THE OTHER.  THE STATUTORY DIFFERENCES LIE ONLY
IN THE TERRITORIAL SCOPE AND PATTERN OF THE OPERATION. 

III.  IT FOLLOWS FROM WHAT HAS BEEN SAID THAT A RESTRICTION ON
COMMODITIES WHICH MAY BE CARRIED BETWEEN SPECIFIED POINTS MAY NOT
ALWAYS BE JUSTIFIED.  IF THE APPLICANT HAD ESTABLISHED THAT IT WAS A
"COMMON CARRIER" FOR A GROUP OF COMMODITIES OR FOR AN ENTIRE CLASS OR
CLASSES OF PROPERTY AND WAS IN "BONA FIDE OPERATION" DURING THE
CRITICAL PERIODS IN A SPECIFIED TERRITORY, RESTRICTIONS ON COMMODITIES
WHICH COULD BE MOVED IN ANY ONE DIRECTION OR BETWEEN DESIGNATED POINTS
WOULD NOT BE JUSTIFIED.  THE FACT THAT A PARTICULAR COMMODITY HAD NEVER
BEEN TRANSPORTED BETWEEN CERTAIN POINTS IN THAT TERRITORY WOULD NOT
MEAN THAT AUTHORITY TO HAUL IT BETWEEN THEM SHOULD BE WITHHELD. 
LIKEWISE, IF THE APPLICANT COULD ESTABLISH THAT IT WAS A "COMMON
CARRIER" ONLY OF A LIMITED NUMBER OF COMMODITIES, THERE WOULD NORMALLY
BE NO STATUTORY SANCTION FOR LIMITING THE CARRIAGE OF PARTICULAR
COMMODITIES IN THAT GROUP TO SPECIFIED POINTS IN THE AUTHORIZED AREA. 
PRESUMPTIVELY, ONE WHO HAD ESTABLISHED HIS STATUS OF "COMMON CARRIER"
WOULD BE ENTITLED TO CARRY ALL OF THE COMMODITIES EMBRACED IN HIS
UNDERTAKING TO ALL POINTS TO WHICH ANY SHIPMENTS OF ANY ARTICLES WERE
AUTHORIZED.  ON THE OTHER HAND, AN APPLICANT'S STATUS MAY VARY FROM ONE
PART OF THE TERRITORY TO ANOTHER OR BE DIFFERENT IN NORTHBOUND
SHIPMENTS THAN IN SOUTHBOUND SHIPMENTS.  THUS IN THIS CASE THE
COMMISSION FOUND THAT PRACTICALLY ALL OF APPELLEE'S NORTHBOUND
SHIPMENTS CONSISTED OF COTTON YARN, THOUGH A FEW SHIPMENTS OF OTHER
COMMODITIES SUCH AS TIRES AND TUBES, ASBESTOS TEXTILE PRODUCTS, SPOOLS
AND EMPTY BOXES WERE ALSO MADE NORTHBOUND.  WITH THE EXCEPTION OF TIRES
AND TUBES, THE COMMISSION AUTHORIZED THE SHIPMENTS OF THOSE PRODUCTS ON
NORTHBOUND TRIPS.  ASSUMING THAT FINDING TO BE JUSTIFIED UNDER THE
TESTS WHICH WE HAVE DESCRIBED, IT DOES NOT NECESSARILY FOLLOW THAT THE
NORTHBOUND DESTINATIONS OF THOSE PARTICULAR COMMODITIES SHOULD BE
RESTRICTED TO THE LOCALITIES DESIGNATED BY THE COMMISSION.  ONCE THE
COMMON CARRIER STATUS OF APPELLEE HAD BEEN ESTABLISHED AS RESPECTS
THOSE COMMODITIES, SHIPMENTS TO ANY PARTS OF THE AUTHORIZED TERRITORY,
OR TO ANY OF THE AUTHORIZED POINTS THEREIN, SHOULD HAVE BEEN PERMITTED,
IN ABSENCE OF EVIDENCE THAT THE APPELLEE AS RESPECTS CARRIAGE BETWEEN
SPECIFIED POINTS HAD RESTRICTED ITS UNDERTAKING TO PARTICULAR
COMMODITIES.  THAT PROBLEM IS CLEARER IN THIS CASE AS RESPECTS
SOUTHBOUND SHIPMENTS.  THE RECORD IS PLAIN THAT APPELLEE HELD ITSELF
OUT AS BEING WILLING AND ABLE TO CARRY A WIDE VARIETY OF COMMODITIES ON
ITS RETURN TRIPS TO ITS HOME BASE IN NORTH CAROLINA.  AND THE RECORD
SHOWS THAT IT CARRIED MANY DIFFERENT KINDS OF ARTICLES ON THOSE
SOUTHBOUND JOURNEYS.  BUT THE COMMISSION DRASTICALLY LIMITED ITS RIGHTS
IN THAT REGARD.  THUS IT WAS PERMITTED TO CARRY BEER FROM NEWARK, N.J.
TO TWO POINTS IN NORTH CAROLINA, BUT NOT FROM BALTIMORE, MD.  IN
ABSENCE OF EVIDENCE THAT IT HAD THUS LIMITED ITS UNDERTAKING AS
RESPECTS BEER, THE MERE FACT THAT IT PREVIOUSLY HAD NOT CARRIED BEER
FROM BALTIMORE WOULD BE IMMATERIAL.  IF IT HAD ESTABLISHED BY
SUBSTANTIAL EVIDENCE THAT IT WAS A "COMMON CARRIER" OF BEER ON
SOUTHBOUND TRIPS, IT WOULD BE ENTITLED TO CARRY IT FROM ANY OF THE
NORTHERN POINTS TO ANY OF THE SOUTHERN DESTINATIONS.  FOR THERE WAS NO
EVIDENCE IN THIS CASE THAT IT HAD RESTRICTED ITS UNDERTAKING AS
RESPECTS BEER TO SHIPMENTS FROM NEWARK, UNLESS THE FACT THAT IT HAD
CARRIED BEER ONLY FROM THAT POINT IS TO BE CONCLUSIVE.  BUT TO SAY THAT
THAT WAS CONCLUSIVE OR CONTROLLING WOULD BE TO DISREGARD THE NATURAL
AND NORMAL COURSE OF BUSINESS SHOWN BY THIS RECORD.  SO FAR AS
SOUTHBOUND SHIPMENTS ARE CONCERNED, IT IS PLAIN THAT A WIDE VARIETY OF
ARTICLES WAS TRANSPORTED CONSISTENTLY WITH APPELLEE'S HOLDING OUT THAT
IT WOULD CARRY ANY OF THE ARTICLES FROM ANY OF THE POINTS.  APPELLEE'S
"BONA FIDE OPERATION" MAY POSSIBLY BE LIMITED ONLY TO THOSE ARTICLES
ACTUALLY CARRIED.  BUT WHERE IT WAS ACTIVELY SOLICITING WHATEVER IT
COULD GET AT ANY OF THE POINTS, IT DOES VIOLENCE TO ITS COMMON CARRIER
STATUS TO MAKE THE ORIGIN OR DESTINATION OF FUTURE SHIPMENTS CONFORM TO
THE PRECISE PATTERN OF THE OLD.  SUCH A PULVERIZATION OF THE PRIOR
COURSE OF CONDUCT CHANGES ITS BASIC CHARACTERISTICS.  THERE IS NO
STATUTORY SANCTION FOR SUCH A PROCEDURE. 

IV.  TO APPELLEE SUCH MATTERS INVOLVE LIFE OR DEATH.  EMPTY OR
PARTIALLY LOADED TRUCKS ON RETURN TRIPS MAY WELL DRIVE THE ENTERPRISE
TO THE WALL.  A RESTRICTION IN THIS CASE OF THE COMMODITIES WHICH MAY
BE CARRIED FROM ANY ONE POINT ON SOUTHBOUND TRIPS IS A PATENT DENIAL TO
APPELLEE OF THAT "SUBSTANTIAL PARITY BETWEEN FUTURE OPERATIONS AND
PRIOR BONA FIDE OPERATIONS" WHICH THE ACT CONTEMPLATES.  ALTON R. CO.
V. UNITED STATES, SUPRA.  ITS PRIOR OPPORTUNITY SHOULD NOT BE
RESTRICTED BEYOND THE CLEAR REQUIREMENTS OF THE STATUTE.  FOR THIS ACT
SHOULD BE LIBERALLY CONSTRUED TO PRESERVE THE POSITION WHICH THOSE LIKE
APPELLEE HAVE STRUGGLED TO OBTAIN IN OUR NATIONAL TRANSPORTATION
SYSTEM.  TO FREEZE THEM INTO THE PRECISE PATTERN OF THEIR PRIOR
ACTIVITIES, AS WAS DONE HERE, NOT ONLY MAY ALTER MATERIALLY THE BASIC
CHARACTERISTICS OF THEIR SERVICE, IT ALSO MAY WELL BE TANTAMOUNT TO A
DENIAL OF THEIR STATUTORY RIGHTS. 

THE PRECISE GROUNDS FOR THE COMMISSION'S DETERMINATION THAT ONLY
CERTAIN COMMODITIES COULD BE CARRIED AND THAT ONLY A FEW COULD BE
TRANSPORTED BETWEEN DESIGNATED POINTS ARE NOT CLEAR.  IT IS IMPOSSIBLE
TO SAY THAT THE STANDARDS WHICH WE HAVE SET FORTH WERE APPLIED TO THE
FACTS IN THIS RECORD.  HENCE, AS IN FLORIDA V. UNITED STATES, 282 U.S.
194, 215, THE DEFECT IS NOT MERELY ONE OF THE ABSENCE OF A "SUITABLY
COMPLETE STATEMENT" OF THE REASONS FOR THE DECISION; IT IS THE "LACK OF
THE BASIC OR ESSENTIAL FINDINGS REQUIRED TO SUPPORT THE COMMISSION'S
ORDER."  AND SEE UNITED STATES V. BALTIMORE & OHIO R. CO., 293 U.S.
454, 464; UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294 U.S.
499, 510-511.  CONGRESS HAS MADE A GRANT OF RIGHTS TO CARRIERS SUCH AS
APPELLEE.  CONGRESS HAS PRESCRIBED STATUTORY STANDARDS PURSUANT TO
WHICH THOSE RIGHTS ARE TO BE DETERMINED.  NEITHER THE COURT NOR THE
COMMISSION IS WARRANTED IN DEPARTING FROM THOSE STANDARDS BECAUSE OF
ANY DOUBTS WHICH MAY EXIST AS TO THE WISDOM OF FOLLOWING THE COURSE
WHICH CONGRESS HAS CHOSEN.  CONGRESS HAS ALSO PROVIDED FOR JUDICIAL
REVIEW AS AN ADDITIONAL ASSURANCE THAT ITS POLICIES BE EXECUTED.  THAT
REVIEW CERTAINLY ENTAILS AN INQUIRY AS TO WHETHER THE COMMISSION HAS
EMPLOYED THOSE STATUTORY STANDARDS.  IF THAT INQUIRY IS HALTED AT THE
THRESHOLD BY REASON OF THE FACT THAT IT IS IMPOSSIBLE TO SAY WHETHER OR
NOT THOSE STANDARDS HAVE BEEN APPLIED, THEN THAT REVIEW HAS INDEED
BECOME A PERFUNCTORY PROCESS.  IF, AS SEEMS LIKELY HERE, AN ERRONEOUS
STATUTORY CONSTRUCTION LIES HIDDEN IN VAGUE FINDINGS, THEN STATUTORY
RIGHTS WILL BE WHITTLED AWAY.  AN INSISTENCE UPON THE FINDINGS WHICH
CONGRESS HAS MADE BASIC AND ESSENTIAL TO THE COMMISSION'S ACTION IS NO
INTRUSION INTO THE ADMINISTRATIVE DOMAIN.  IT IS NO MORE AND NO LESS
THAN AN INSISTENCE UPON THE OBSERVANCE OF THOSE STANDARDS WHICH
CONGRESS HAS MADE "PREREQUISITE TO THE OPERATION OF ITS STATUTORY
COMMAND."  OPP COTTON MILLS, INC. V. ADMINISTRATOR, 312 U.S. 126, 144. 
HENCE THAT REQUIREMENT IS NOT A MERE FORMAL ONE.  ONLY WHEN THE
STATUTORY STANDARDS HAVE BEEN APPLIED CAN THE QUESTION BE REACHED AS TO
WHETHER THE FINDINGS ARE SUPPORTED BY EVIDENCE.  THAT IS WHY WE CANNOT
SAY THAT THE COMMISSION WOULD BE JUSTIFIED IN PLACING THE SAME
RESTRICTIONS ON THE CERTIFICATE IN THIS CASE HAD A CORRECT CONSTRUCTION
OF THE ACT BEEN TAKEN. 

WE EXPRESS NO OPINION ON THE SCOPE OF THE CERTIFICATE WHICH SHOULD BE
GRANTED IN THIS CASE.  THAT ENTAILS NOT ONLY A WEIGHING OF EVIDENCE BUT
THE EXERCISE OF AN EXPERT JUDGMENT ON THE INTRICACIES OF THE
TRANSPORTATION PROBLEMS WHICH ARE INVOLVED.  THAT FUNCTION IS RESERVED
EXCLUSIVELY FOR THE COMMISSION.  UNITED STATES V. MAHER, SUPRA; ALTON
R. CO. V. UNITED STATES, SUPRA.  OUR TASK ENDS IF THE STATUTORY
STANDARDS HAVE BEEN PROPERLY APPLIED.  AFFIRMED. 

FN1  WITH THE EXCEPTION OF "COMMODITIES OF UNUSUAL VALUE, THOSE IN
BULK, THOSE REQUIRING SPECIAL EQUIPMENT SUCH AS TANK OR REFRIGERATOR
TRUCKS, THOSE INJURIOUS TO OTHER LADING, LIVE STOCK, AUTOMOBILES AND
HIGH EXPLOSIVES." 

FN2  IN 1940 CONGRESS AMENDED SEC. 203(A)(14) TO READ:  "THE TERM
'COMMON CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON WHICH HOLDS ITSELF
OUT TO THE GENERAL PUBLIC TO ENGAGE IN THE TRANSPORTATION BY MOTOR
VEHICLE IN INTERSTATE OR FOREIGN COMMERCE OF PASSENGERS OR PROPERTY OR
ANY CLASS OR CLASSES THEREOF FOR COMPENSATION, WHETHER OVER REGULAR OR
IRREGULAR ROUTES,  ...  "  ACT OF SEPT. 18, 1940, C. 722, SEC. 18(A),
54 STAT. 920.  THE EARLIER DEFINITION OF "COMMON CARRIER" WAS IN FORCE
AT THE TIME OF THE HEARING OF THIS CASE BEFORE THE COMMISSION. 

MR. JUSTICE JACKSON, DISSENTING: 

MR. JUSTICE FRANKFURTER AND I ARE UNABLE TO AGREE WITH THIS
DISPOSITION OF THE CASE. 

IT OVERTURNS THE EXERCISE OF A DISCRETION WHICH CONGRESS HAS
DELEGATED TO THE INTERSTATE COMMERCE COMMISSION UPON GROUNDS WHICH SEEM
TO US SO UNSUBSTANTIAL AS REALLY TO BE A REVERSAL ON SUSPICION.  THE
FUNCTION OF DETERMINING "GRANDFATHER" RIGHTS DELEGATED IN THIS CASE IS
NOT UNLIKE THE FUNCTION DEALT WITH IN GRAY V. POWELL, 314 U.S. 402, IN
WHICH WE SAID THAT CONGRESS COULD HAVE LEGISLATED SPECIFICALLY AS TO
INDIVIDUAL EXEMPTIONS BUT "FOUND IT MORE EFFICIENT TO DELEGATE THAT
FUNCTION TO THOSE WHOSE EXPERIENCE IN A PARTICULAR FIELD GAVE PROMISE
OF A BETTER INFORMED, MORE EQUITABLE ADJUSTMENT OF THE CONFLICTING
INTERESTS" (P. 412).  WE HELD THAT THIS DELEGATION WILL BE RESPECTED
AND THAT, UNLESS WE CAN SAY THAT A SET OF CIRCUMSTANCES DEEMED BY THE
COMMISSION TO BRING A PARTICULAR APPLICANT WITHIN THE CONCEPT OF THE
STATUTE "IS SO UNRELATED TO THE TASKS ENTRUSTED BY CONGRESS TO THE
COMMISSION AS IN EFFECT TO DENY A SENSIBLE EXERCISE OF JUDGMENT, IT IS
THE COURT'S DUTY TO LEAVE THE COMMISSION'S JUDGMENT UNDISTURBED" (P.
413).  WHILE THE COURT PAYS LIP SERVICE TO THIS PRINCIPLE, THE
COMMISSION'S DECISION IS UPSET BECAUSE, AS THE OPINION STATES, "WE HAVE
DOUBTS"; "WE ARE NOT CONFIDENT"; AND "WE ARE NOT SATISFIED."  THE
OPINION PROCEEDS AS IT MIGHT DO WITH A BURDEN UPON THE COMMISSION,
ALTHOUGH WE SUPPOSED THE BURDEN TO BE UPON THOSE WHO COMPLAIN OF AN
ADMINISTRATIVE DECISION TO SATISFY THE COURT THAT THE DECISION IS WRONG
- PARTICULARLY ONE DEALING WITH AN EXEMPTION FROM A GENERAL DUTY. 

WE DO NOT AGREE THAT A REMAND TO THE COMMISSION TO MAKE SPECIFIC
FINDINGS OF THE KIND REQUIRED IN FLORIDA V. UNITED STATES, 282 U.S.
194, 215, IS APPROPRIATE.  IN THE FLORIDA CASE, THE COMMISSION
UNDERTOOK TO REVISE INTRASTATE RAILROAD RATES UNDER CONTROL OF THE
STATE AND OVER WHICH, AS CHIEF JUSTICE HUGHES SAID, "THE COMMISSION HAS
NO GENERAL AUTHORITY."  282 U.S. AT 212.  IT WAS REQUIRED TO SUPPORT
ITS JURISDICTION TO REVISE RATES NOT WITHIN ITS GENERAL CONTROL BY
SPECIFIC FINDINGS AS TO WHETHER THOSE RATES IN ANY WAY CONSTITUTED A
BURDEN ON INTERSTATE COMMERCE.  THE COURT HAD EARLIER ESTABLISHED THE
RULE THAT AN ORDER OF THE COMMISSION SHOULD NOT BE GIVEN PRECEDENCE
OVER A STATE RATE STATUTE OTHERWISE VALID "UNLESS, AND EXCEPT SO FAR
AS, IT CONFORMS TO A HIGH STANDARD OF CERTAINTY."  ILLINOIS CENTRAL R.
CO. V. PUBLIC UTILITIES COMMISSION, 245 U.S. 493, 510.  AND IN THIS
CONNECTION THE COURT POINTED OUT THAT EVEN AN ACT OF CONGRESS IS NOT TO
BE CONSTRUED TO SUPERSEDE OR SUSPEND THE EXERCISE OF THE RESERVED
POWERS OF THE STATE, EVEN WHERE THE CONSTITUTION PERMITS, "EXCEPT SO
FAR AS ITS PURPOSE TO DO SO IS CLEARLY MANIFESTED."  IT IS ONE THING TO
REQUIRE THE INTERSTATE COMMERCE COMMISSION TO BE EXPLICIT IN FINDING
JURISDICTIONAL FACTS BEFORE IT INVADES CONCEDED STATE POWER.  IT IS A
WHOLLY DIFFERENT THING TO READ WITH A HOSTILE EYE THE COMMISSION'S
FINDINGS THAT A CLAIM FOR EXEMPTION FROM CONCEDED FEDERAL REGULATORY
AUTHORITY HAS NOT BEEN SUSTAINED. 

FURTHERMORE, IF AFTER THIS CASE IS RETURNED TO THE COMMISSION, THE
COMMISSION SHOULD LEAVE NO ROOM FOR DOUBT THAT IN MAKING THE CHALLENGED
ORDER IT ACTED UPON CORRECT NOTIONS OF LAW, IT MAY YET BE UPSET BECAUSE
THE COURT SAYS ITS FINDINGS ARE NOT SUSTAINED BY THE EVIDENCE, IT HAD
BETTER BE SAID NOW.  WE HAVE HERE A SMALL RECORD AND SIMPLE FACTS,
WHICH ARE ALL BEFORE US, GIVING ADEQUATE BASIS FOR CONCLUDING WHETHER
THESE FACTS AS FOUND BY THE COMMISSION WARRANTED THE ORDER.  ON THIS
RECORD IT IS PLAIN WHAT THE COMMISSION HAS DONE.  THE ONLY QUESTION IS
CAN IT DO WHAT IT HAS DONE?  TO SEND THE CASE BACK TO THE COMMISSION
TO BE RECONSIDERED OR TO SAY THAT IT HAS ALREADY BEEN CONSIDERED IN THE
LIGHT OF THE LEGAL VIEWS WHICH THE COURT EXPRESSES, AND THEN, PERHAPS,
TO SAY THAT IN ANY EVENT THE ORDER IS NOT WARRANTED ON THE RECORD
BEFORE US, IS REALLY TO INVITE THE COMMISSION TO EXPRESS ABSTRACT VIEWS
ON LAW.  WHAT THIS AMOUNTS TO IS THAT THE COURT REFUSES TO TELL THE
COMMISSION WHAT IT THINKS ABOUT THE EVIDENCE UNTIL THE COMMISSION TELLS
WHAT IT THINKS ABOUT THE LAW.  WE CANNOT REGARD THIS AS THE MOST
HELPFUL USE OF THE POWER OF JUDICIAL REVIEW. 

CONGRESS BY THE MOTOR CARRIER ACT OF 1935 CAST UPON THE COMMISSION
THE TASK OF REGULATING THE MOTOR CARRIER INDUSTRY.  BY THE ENACTMENT,
CONGRESS ASSERTED THAT THE PUBLIC INTEREST IN THE MOTOR CARRIER
ENTERPRISE HAD BECOME PARAMOUNT TO PRIVATE INTERESTS.  THE HIGHLY
INDIVIDUALISTIC NATURE OF THE BUSINESS AND THE EASY TERMS UPON WHICH
EQUIPMENT COULD BE OBTAINED HAD PROMOTED A QUICK GROWTH ACCOMPANIED BY
INTENSE AND UNECONOMIC COMPETITION, BOTH WITHIN ITSELF AND WITH OTHER
TRANSPORTATION SYSTEMS.  IT WAS NOT EXPECTED THAT A SPRAWLING, CHAOTIC,
AND CUTTHROAT INDUSTRY THAT HAD DEVELOPED ENTIRELY IN THE PRIVATE
INTEREST WOULD BE REDUCED TO AN ORDERLY AND REGULARIZED SYSTEM OF
TRANSPORTATION IN THE PUBLIC INTEREST WITHOUT STEPPING ON A GOOD MANY
INDIVIDUAL TOES.  FN1 

IN TRYING TO LIMIT THE INJURY CAUSED BY TRANSITION FROM A PURELY
PRIVATE ENTERPRISE TO A REGULATED PUBLIC SERVICE INDUSTRY, THE GENERAL
PLAN WAS TO PRESERVE TO PRIVATE OWNERS THE TRANSPORTATION VALUES
EVIDENCED BY ACTUAL CONDITIONS OF OPERATION ON JUNE 1, 1935, AND TO
EXEMPT THEM FROM MEETING THE REQUIREMENTS OF "PUBLIC CONVENIENCE AND
NECESSITY" AS TO SUCH OPERATION.  THOSE WHO OBTAINED SUCH "GRANDFATHER"
RIGHTS ARE NOT, HOWEVER, LIMITED TO THEM.  THEY MAY EXPAND THEIR
TERRITORY OR EXTEND THEIR SERVICE BY PROVING THAT PUBLIC CONVENIENCE
AND NECESSITY WILL BE SERVED THEREBY.  THUS, THE SCRAMBLE FOR
"GRANDFATHER" RIGHTS REPRESENTS THE EFFORT TO PRE-EMPT TERRITORY AND
SERVICE PRIVILEGES WITHOUT SUBMITTING TO THE TEST OF THE PUBLIC
INTEREST.  PUBLIC REGULATION WOULD BE DEFEATED AT ITS VERY OUTSET IF
THE COMMISSION PERMITTED THE BULK OF THE INDUSTRY TO ESCAPE THE PUBLIC
INTEREST TEST BY INFLATED CLAIMS UNDER THE "GRANDFATHER" CLAUSE.  THE
NATURE OF THE GENERAL TASK OF REDUCING THE CLAIMS OF "GRANDFATHER"
RIGHTS TO DEFINED AND REASONABLE LIMITS CONSISTENT WITH THE PLAN OF
PUBLIC REGULATION IS DISCLOSED BY THE RECORD IN THIS CASE. 

THE MOTOR CARRIER HERE ASKED AS A MATTER OF RIGHT THAT THE COMMISSION
CERTIFY ITS "GRANDFATHER" PRIVILEGES TO INCLUDE THE CARRIAGE OF GENERAL
COMMODITIES IN A TERRITORY COMPRISING SUBSTANTIALLY THE ATLANTIC
SEABOARD FROM SOUTH CAROLINA TO MASSACHUSETTS.  THAT THERE WAS SOME
DISPARITY BETWEEN ITS HOPES AND ITS EXPERIENCE WAS INDICATED BY THE
FACT THAT ON JUNE 1, 1935, IT WAS OPERATING EIGHT TRUCKS, AND BY 1936,
THE NUMBER OF USABLE VEHICLES HAD FALLEN TO FOUR.  AFTER A CHANGE OF
OWNERSHIP THE NUMBER WAS INCREASED, AND AT THE TIME OF HEARING THE
APPLICANT WAS OPERATING SEVENTEEN CARRYING UNITS. 

THIS CARRIER DID NOT OPERATE AT STATED TIMES OR OVER REGULAR ROUTES,
BUT WAS AN IRREGULAR ROUTE CARRIER.  THE BACKBONE OF ITS BUSINESS
CONSISTED OF CARRIAGE OF COTTON YARN FROM POINTS OF ORIGIN IN THE SOUTH
TO POINTS OF DISTRIBUTION IN THE NORTH.  INCIDENTAL TO THIS CARRIAGE IT
WAS READY TO ACCEPT CARGO OF ALMOST ANY KIND TO COMPLETE ITS LOADS AND
PARTICULARLY TO PROVIDE EARNINGS ON RETURN TRIPS.  IF SATISFACTORY
TERMS COULD BE ARRIVED AT, IT WAS WILLING TO CARRY ALMOST ANYTHING
ALMOST ANY PLACE.  ON THE BASIS OF SUCH GENERAL HOLDINGS-OUT, THIS
CARRIER SOUGHT CERTIFICATES THAT WOULD ENTITLE IT AS A MATTER OF RIGHT
TO CARRY NEARLY EVERYTHING WITHIN THE TERRITORY DESCRIBED. 

THE COMMISSION CUT DOWN THE CLAIMS OF THE APPLICANT BY THE USE OF THE
STANDARD WHICH THE ACT PRESCRIBES:  NAMELY, BONA FIDE OPERATION AS A
COMMON CARRIER BY MOTOR VEHICLE.  THE COMMISSION REDUCED THE
TERRITORIAL CLAIM TO THAT WHICH THE CARRIER ACTUALLY SERVED WITH SOME
REGULARITY, AND LOPPED OFF TERRITORY WHICH HAD BEEN SERVED ONLY
OCCASIONALLY OR BY ISOLATED TRIPS.  IT LIMITED THE COMMODITIES TO BE
CARRIED TO THOSE CARRIED IN SUBSTANTIAL VOLUME DURING THE PERIOD BEFORE
AND AFTER JUNE 1, 1935.  WE FIND NO BASIS UPON WHICH WE CAN SAY AS
MATTER OF LAW THAT THESE GENERAL METHODS OF REDUCING NEBULOUS AND
EXTRAVAGANT CLAIMS TO A COMPASS WHICH THE COMMISSION COULD PROPERLY
CERTIFY AS REPRESENTING BONA FIDE OPERATION ARE IMPROPER OR OTHER THAN
THOSE CONTEMPLATED BY THE STATUTE. 

THE COURT IS "NOT CONFIDENT" THAT THE COMMISSION APPLIED TO THIS
IRREGULAR ROUTE CARRIER THE SAME TEST AS TO COMMODITIES THAT IS APPLIED
TO REGULAR ROUTE CARRIERS.  WE CANNOT BE SO CONFIDENTLY UNCONFIDENT. 
THE COMMISSION SEEMS TO HAVE MADE ONLY THE DISTINCTION BETWEEN
IRREGULAR AND THE REGULAR ROUTE CARRIERS THAT RESULTS FROM THE
DIFFERENCES INHERENT IN THE TWO TYPES OF ENTERPRISE.  THE COMMISSION
HAS TESTED BOTH BY THE REGULARITY AND SUBSTANTIALITY OF THEIR ACTUAL
OPERATIONS.  IT IS A TEST WITH WHICH THEY MAY HAVE UNEQUAL ABILITY TO
COMPLY, BUT TO REACH DIFFERENT RESULTS ON SUCH DIFFERENT FACTS DOES NOT
IMPLY EITHER THE USE OF DIFFERENT LEGAL STANDARDS OR DISCRIMINATORY
ADMINISTRATION. 

THE ADMINISTRATORS OF THE MOTOR CARRIER ACT MUST BE AWARE, AS THE
FRAMERS OF IT WERE, THAT "THE GRANDFATHER CLAUSE AS OF JUNE 1, 1935,
HAS BEEN FIXED IN FAIRNESS TO BONA FIDE MOTOR CARRIERS NOW OPERATING ON
THE HIGHWAY AND LIMITED SO AS TO PREVENT SPECULATION WHICH IS HIGHLY
IMPORTANT."  REPORT OF THE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, H.R. REP. NO. 1645, 74TH CONG., 1ST SESS., P. 4.  WHEN A
CARRIER CLAIMS GRANDFATHER RIGHTS TO SERVE THE ENTIRE ATLANTIC SEABOARD
AS A GENERAL COMMON CARRIER WITH EQUIPMENT CONSISTING ON THE CRITICAL
DATE, OF EIGHT TRUCKS, THE COMMISSION IS OBVIOUSLY FOREWARNED THAT IT
MUST GUARD AGAINST GRANTING FRANCHISE PRIVILEGES THAT WILL RESULT IN
THEIR HAVING A SPECULATIVE VALUE TO THE CARRIER RATHER THAN A SERVICE
VALUE TO THE PUBLIC.  THE COMMISSION WAS QUITE RIGHT TO TAKE THE
MEASURE OF THE TERRITORY AND SERVICE OF SUCH A CLAIMANT AND TO GIVE HIM
A CERTIFICATE COVERING HIS ACTUAL SUBSTANTIAL OPERATIONS.  WE SHOULD
NOT SUBSTITUTE OUR OWN WISDOM OR UNWISDOM FOR THAT OF ADMINISTRATIVE
OFFICERS WHO HAVE KEPT WITHIN THE BOUNDS OF THEIR ADMINISTRATIVE
POWERS.  A.T. & T. CO. V. UNITED STATES, 299 U.S. 232, 236. 

FN1  SEE REPORT OF JOSEPH B. EASTMAN, FEDERAL COORDINATOR OF
TRANSPORTATION, ON THE REGULATION OF TRANSPORTATION AGENCIES OTHER THAN
RAILROADS.  SEN. DOC. NO. 152, 73RD CONG., 2ND SESS., P. 13 ET SEQ. 

SEE ALSO REPORT OF THE COMMITTEE ON INTERSTATE COMMERCE ON THE MOTOR
CARRIER ACT, 1935, SEN. REP. NO. 482, 74TH CONG., 1ST SESS.
..END :










HOWARD HALL CO. V. U.S., 315 U.S. 495 


NO. 210.  ARGUED JANUARY 16, 19, 1942.  - DECIDED MARCH 2, 1942.  - 38
F.SUPP.  556, REVERSED. 


1.  A GRANT BY THE INTERSTATE COMMERCE COMMISSION OF A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY FOR OPERATION AS A COMMON CARRIER BY
MOTOR VEHICLE UNDER THE "GRANDFATHER CLAUSE" OF THE MOTOR CARRIER ACT
OF 1935, AUTHORIZING SERVICE ONLY FROM A PARTICULAR CITY AND ALL POINTS
WITHIN A RADIUS OF 10 MILES THEREOF, TO ALL POINTS IN CERTAIN STATES
AND TO DESIGNATED POINTS IN OTHERS, HELD NOT ERRONEOUS.  P. 498.  2. 
IN A GRANT OF COMMON CARRIER RIGHTS UNDER THE "GRANDFATHER CLAUSE,"
THAT PART OF THE ORDER OF THE COMMISSION IN THIS CASE WHICH LIMITS THE
KINDS OF COMMODITIES WHICH MAY BE CARRIED BETWEEN SPECIFIED POINTS, IS
NOT SUPPORTED BY THE REQUISITE BASIC OR ESSENTIAL FINDINGS.  UNITED
STATES V. CAROLINA FREIGHT CARRIERS, ANTE, P. 475.  P. 499. 

HOWARD HALL CO., INC. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ALABAMA. 

APPEAL FROM A DECREE DISMISSING THE COMPLAINT IN A SUIT TO ENJOIN
ENFORCEMENT OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP.,
ANTE, P. 475, IS AN APPEAL FROM A DISTRICT COURT OF THREE JUDGES (38
F.SUPP.  556) CONVENED TO REVIEW AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION (24 M.C.C. 273) GRANTING APPELLANT A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY AS A COMMON CARRIER BY MOTOR VEHICLE UNDER
THE SO-CALLED "GRANDFATHER CLAUSE" (SEC. 206(A)) OF THE MOTOR CARRIER
ACT OF 1935.  49 U.S.C. SEC. 306. 

APPELLANT MADE APPLICATION AS A COMMON CARRIER OF GENERAL COMMODITIES
OPERATING OVER IRREGULAR ROUTES.  IT SOUGHT AUTHORITY TO OPERATE
BETWEEN ALL POINTS IN A VAST TERRITORY COMPRISING MOST OF THE COUNTRY
EAST OF THE MISSISSIPPI RIVER, EXCEPT THE NEW ENGLAND STATES.  THE
COMMISSION AUTHORIZED THE ISSUANCE OF A CERTIFICATE BUT LIMITED IT IN
TWO RESPECTS.  (1) IT RESTRICTED THE GEOGRAPHICAL SCOPE OF THE
OPERATIONS BY AUTHORIZING SERVICE ONLY FROM BIRMINGHAM, ALA., AND ALL
POINTS WITHIN A RADIUS OF 10 MILES FROM THAT CITY, TO ALL POINTS IN
CERTAIN STATES AND TO DESIGNATED POINTS IN OTHERS.  (2) THOUGH IT
PERMITTED APPELLANT TO CARRY GENERAL COMMODITIES THROUGHOUT A LARGE
SEGMENT OF THE AUTHORIZED TERRITORY, IT LIMITED THE KINDS OF
COMMODITIES WHICH COULD BE CARRIED BETWEEN SPECIFIED POINTS.  ITS
FINDING CONTAINING THOSE RESTRICTIONS (24 M.C.C., P. 277) READS AS
FOLLOWS: 

"WE FIND THAT APPLICANT WAS, ON JUNE 1, 1935, AND CONTINUOUSLY SINCE
THAT TIME HAS BEEN, IN BONA FIDE OPERATION, IN INTERSTATE OR FOREIGN
COMMERCE, AS A COMMON CARRIER BY MOTOR VEHICLE, OF GENERAL COMMODITIES,
EXCEPT COMMODITIES OF UNUSUAL VALUE, HIGH EXPLOSIVES, COMMODITIES IN
BULK, COMMODITIES REQUIRING SPECIAL EQUIPMENT, AND HOUSEHOLD GOODS,
UNCRATED OR IN LIFT VANS IN CONNECTION WITH SO-CALLED HOUSEHOLD MOVINGS
BETWEEN BIRMINGHAM, ALA., AND ALL POINTS WITHIN 10 MILES THEREOF, ON
THE ONE HAND, AND, ON THE OTHER, ALL POINTS IN NORTH CAROLINA, GEORGIA,
MISSISSIPPI, AND SOUTH CAROLINA, AND THOSE IN FLORIDA ON AND NORTH OF A
LINE CONSISTING OF U.S. HIGHWAY 92 FROM TAMPA TO KISSIMMEE, THENCE U.S.
HIGHWAY 192 TO MELBOURNE, OF PAPER AND PAPER PRODUCTS FROM BIRMINGHAM
TO NEW ORLEANS, LA., AND CHATTANOOGA AND KNOXVILLE, TENN., AND FROM
KINGSPORT, TENN., TO BIRMINGHAM, OF NAILS, PIPE, PIPE FITTINGS, STEEL,
AND METAL CEILINGS FROM CANTON, OHIO, TO BIRMINGHAM, OF CLOTH FROM
ALABAMA CITY, ALA., TO WHEELING, W. VA., AND OF MATCHES FROM WHEELING
TO CHATTANOOGA AND BIRMINGHAM, ALL OVER IRREGULAR ROUTES; THAT BY
REASON OF SUCH OPERATION IT IS ENTITLED TO A CERTIFICATE AUTHORIZING
THE CONTINUANCE THEREOF; AND THAT THE APPLICATION IN ALL OTHER RESPECTS
SHOULD BE DENIED." 

THE DISTRICT COURT REFUSED TO ENJOIN ENFORCEMENT OF THE ORDER AND
DISMISSED THE COMPLAINT.  THE ERRORS URGED HERE DO NOT RELATE TO THE
SUBSTANTIALITY OF THE EVIDENCE IN SUPPORT OF THE FINDINGS.  THEY
INVOLVE TWO QUESTIONS:  (1) WHETHER THE COMMISSION WAS WARRANTED IN
LIMITING SHIPMENTS TO AND FROM POINTS LOCATED WITHIN A 10 MILE, RATHER
THAN A 100 MILE, RADIUS OF BIRMINGHAM; AND (2) WHETHER THE COMMISSION
ERRED IN LIMITING THE OPERATING RIGHTS OF APPELLANT TO THE
TRANSPORTATION OF ONLY A FEW COMMODITIES BETWEEN CERTAIN POINTS. 

I. WE PERCEIVE NO ERROR IN THE LIMITATION WHICH THE COMMISSION MADE
ON THE TERRITORIAL SCOPE OF APPELLANT'S OPERATIONS. 

APPELLANT ARGUES THAT IF IT MAY BE AUTHORIZED TO SERVE ALL POINTS IN
ONE STATE, SAY GEORGIA, WITHOUT SHOWING THAT EVERY POINT IN GEORGIA HAD
BEEN PREVIOUSLY SERVED BY IT, THEN IT MUST BE GRANTED LIKE AUTHORITY AS
RESPECTS THE 100 MILE RADIUS AROUND BIRMINGHAM.  THAT IS A NON
SEQUITUR.  PRIOR OPERATIONS TO SEVERAL POINTS IN A REGION MAY OR MAY
NOT JUSTIFY THE COMMISSION IN AUTHORIZING SERVICE THROUGHOUT THE WHOLE
REGION.  THE PRECISE GEOGRAPHICAL PATTERN FOR FUTURE OPERATIONS IS THE
PRODUCT OF AN EXPERT JUDGMENT BASED ON THE SUBSTANTIALITY OF THE
EVIDENCE AS TO PRIOR OPERATIONS, THE CHARACTERISTICS OF THE PARTICULAR
TYPE OF CARRIER, THE CAPACITY OR ABILITY OF THE APPLICANT TO RENDER THE
SERVICE, AND THE LIKE.  ALTON R. CO. V. UNITED STATES, 315 U.S. 15;
UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP., SUPRA.  THE
COMMISSION EMPLOYED THOSE STANDARDS IN LIMITING THE TERRITORIAL SCOPE
OF APPELLANT'S OPERATIONS.  WE CANNOT SAY THAT ITS REDUCTION OF THE
BIRMINGHAM AREA FROM A RADIUS OF 100 MILES TO A RADIUS OF 10 MILES WAS
UNJUSTIFIED.  THE COMMISSION FOUND THAT ONLY 55 SHIPMENTS WERE
TRANSPORTED PRIOR TO JUNE 1, 1935, TO OR FROM POINTS WITHIN 100 MILES
OF BIRMINGHAM, AS AGAINST 875 TO OR FROM THAT CITY.  ONLY 12 POINTS
WERE SERVED IN THAT LARGE AREA.  AFTER JUNE 1, 1935, 270 SHIPMENTS
MOVED TO OR FROM POINTS WITHIN 100 MILES OF BIRMINGHAM, AS AGAINST
2,030 TO OR FROM THAT CITY.  THE COMMISSION REDUCED THE RADIUS TO 10
MILES IN AN ENDEAVOR TO INCLUDE ONLY THE IMPORTANT INDUSTRIAL AREA
SURROUNDING THAT CITY.  IF WE WERE TO ENLARGE THAT AREA, WE WOULD
CLEARLY USURP A FUNCTION WHICH CONGRESS ENTRUSTED TO THE COMMISSION. 
NOR CAN THAT FINDING BE ASSAILED BECAUSE PERMISSION TO SERVE ALL POINTS
IN OTHER AREAS WAS ALLOWED.  SUCH A DIFFERENCE IN TREATMENT PLAINLY IS
NOT ERRONEOUS AS A MATTER OF LAW.  AND NOTHING HAS BEEN CALLED TO OUR
ATTENTION WHICH WOULD EVEN SUGGEST THAT THE RECORD OF PRIOR OPERATIONS
OR THE CHARACTERISTICS OF THIS TRANSPORTATION ENTERPRISE PRECLUDED THE
COMMISSION FROM RESTRICTING THE TERRITORY WHERE SHIPMENTS MAINLY
ORIGINATE WHILE BEING MORE LIBERAL AS RESPECTS THE TERRITORY WHERE
DESTINATION POINTS ARE LOCATED. 

II.  WE TAKE A DIFFERENT VIEW AS RESPECTS THE LIMITATION ON
COMMODITIES WHICH THE COMMISSION IMPOSED IN CASE OF SHIPMENTS BETWEEN
SPECIFIED POINTS.  WE DO NOT SAY THAT THAT LIMITATION WAS UNJUSTIFIED. 
WE MERELY HOLD THAT IN THIS CASE, AS IN UNITED STATES V. CAROLINA
FREIGHT CARRIERS CORP., SUPRA, THE BASIC OR ESSENTIAL FINDINGS TO
SUPPORT THAT PART OF THE ORDER ARE LACKING.  THE COMMISSION'S
CONCLUSION THAT APPELLANT WAS AUTHORIZED TO TRANSPORT GENERAL
COMMODITIES BETWEEN BIRMINGHAM AND VICINITY ON THE ONE HAND, AND ALL
POINTS IN DESIGNATED AREAS ON THE OTHER, WAS BASED ON ITS FINDING THAT
PRIOR TO AND SINCE JUNE 1, 1935, APPELLANT "HELD ITSELF OUT TO
TRANSPORT GENERAL COMMODITIES" IN THAT TERRITORY AND "ACTUALLY
CONDUCTED AN OPERATION CONSISTENT WITH SUCH HOLDING OUT."  BUT IN CASE
OF THE LIMITATION WHICH IT IMPOSED ON THE SHIPMENT OF CERTAIN
COMMODITIES IT MERELY FOUND THAT "PRIOR TO AND SINCE JUNE 1, 1935,
APPLICANT TRANSPORTED PAPER AND PAPER PRODUCTS FROM BIRMINGHAM TO NEW
ORLEANS, LA., AND CHATTANOOGA AND KNOXVILLE, TENNESSEE, AND FROM
KINGSPORT, TENN., TO BIRMINGHAM; NAILS, PIPE, PIPE FITTINGS, STEEL, AND
METAL CEILINGS FROM CANTON, OHIO, TO BIRMINGHAM; CLOTH FROM ALABAMA
CITY, ALA., TO WHEELING, W. VA., AND MATCHES FROM WHEELING TO
CHATTANOOGA AND BIRMINGHAM." 

AS WE INDICATED IN UNITED STATES V. CAROLINA FREIGHT CARRIERS CORP.,
SUPRA, IF THE APPLICANT HAD ESTABLISHED THAT IT WAS A "COMMON CARRIER"
OF GENERAL COMMODITIES DURING THE CRITICAL PERIODS IN A SPECIFIED
TERRITORY, RESTRICTIONS ON COMMODITIES WHICH COULD BE MOVED BETWEEN
SPECIFIED POINTS IN THAT TERRITORY WOULD NOT BE JUSTIFIED.  THE MERE
FACT THAT PARTICULAR COMMODITIES HAD NEVER BEEN TRANSPORTED BETWEEN
DESIGNATED POINTS IN THAT TERRITORY WOULD NOT MEAN THAT AUTHORITY TO
HAUL THEM BETWEEN SUCH POINTS SHOULD BE WITHHELD.  ON THE OTHER HAND,
AN APPLICANT'S STATUS MAY VARY FROM ONE PART OF THE TERRITORY TO
ANOTHER.  AS RESPECTS CARRIAGE BETWEEN DESIGNATED POINTS, THE APPLICANT
MAY HAVE RESTRICTED ITS UNDERTAKING TO PARTICULAR COMMODITIES.  IT IS
NOT CLEAR, HOWEVER, THAT THE COMMISSION APPLIED THOSE TESTS IN THIS
CASE.  FROM ALL THAT APPEARS, IT MAY HAVE ALLOWED ONLY PAPER AND PAPER
PRODUCTS TO BE SHIPPED FROM BIRMINGHAM TO NEW ORLEANS MERELY BECAUSE
PAPER AND PAPER PRODUCTS WERE THE ONLY COMMODITIES PREVIOUSLY CARRIED
BETWEEN THOSE CITIES.  IT IS TRUE THAT THE COMMISSION QUOTED FROM
RELIANCE TRUCKING CO., INC., 4 M.C.C. 594, 595, TO THE EFFECT THAT THE
QUESTION IS WHETHER THERE HAS BEEN AN OPERATION WITHIN THE CRITICAL
PERIODS CONSISTENT WITH THE HOLDING OUT IN THE NATURAL AND NORMAL
COURSE OF BUSINESS, AND THAT A MERE HOLDING OUT WITHOUT EVIDENCE OF AN
OPERATION CONSISTENT THEREWITH IS NOT ENOUGH.  YET IT ALSO SEEMS TO
HAVE PLACED CONSIDERABLE RELIANCE ON POWELL BROTHERS TRUCK LINES, INC.,
9 M.C.C. 785, 791-792, WHICH WE HAVE DISCUSSED IN UNITED STATES V.
CAROLINA FREIGHT CARRIERS CORP., SUPRA, AND WHICH APPARENTLY TREATS
IRREGULAR ROUTE CARRIERS DIFFERENTLY IN THIS REGARD FROM REGULAR ROUTE
CARRIERS.  SINCE THE INFLUENCE OF THAT VIEW SEEMS TO HAVE PERMEATED THE
FINDINGS, WE CONCLUDE THAT HERE, AS IN UNITED STATES V. CAROLINA
FREIGHT CARRIERS CORP., SUPRA, THE CASE SHOULD BE REMANDED TO THE
COMMISSION SO THAT THE BASIC OR ESSENTIAL FINDINGS REQUIRED UNDER THE
RULE OF FLORIDA V. UNITED STATES, 282 U.S. 194, 215, MAY BE MADE. 
REVERSED. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON DISSENT FOR THE
REASONS STATED IN THEIR DISSENTING OPINION IN UNITED STATES V. CAROLINA
FREIGHT CARRIERS CORP., ANTE, P. 475. 
..END :












BUTLER BROS. V. MCCOLGAN, 315 U.S. 501 


NO. 283.  ARGUED FEBRUARY 12, 1942.  - DECIDED MARCH 2, 1942.  - 17
CAL.2D 664, 111 P.2D 334, AFFIRMED. 


1.  IN THE APPLICATION OF A STATE STATUTE IMPOSING ON CORPORATIONS
DOING BUSINESS WITHIN AND WITHOUT THE STATE A FRANCHISE TAX MEASURED BY
A PERCENTAGE OF THE NET INCOME DERIVED FROM BUSINESS WITHIN THE STATE,
A FORMULA WHICH IS "FAIRLY CALCULATED" TO ALLOCATE TO THE STATE THAT
PORTION OF THE NET INCOME "REASONABLY ATTRIBUTABLE" TO THE BUSINESS
DONE THERE SATISFIES THE REQUIREMENTS OF THE FOURTEENTH AMENDMENT.  P.
506. 

2.  ONE WHO ATTACKS A FORMULA FOR DETERMINING, UNDER A TAXING
STATUTE, THE AMOUNT OF NET INCOME ALLOCABLE TO THE STATE, HAS THE
BURDEN OF SHOWING BY CLEAR AND COGENT EVIDENCE THAT IT RESULTS IN
EXTRATERRITORIAL VALUES BEING TAXED.  P. 507. 

3.  A WHOLESALE MERCHANDISE CORPORATION OPERATED, AS A UNITARY
BUSINESS, STORES IN SEVERAL STATES, INCLUDING ONE IN CALIFORNIA.  IT
MAINTAINED A CENTRAL BUYING DIVISION WHICH SERVED ALL THE STORES.  IN
1935, IT HAD A SUBSTANTIAL PROFIT, ALTHOUGH THE CALIFORNIA STORE, ON A
SEPARATE ACCOUNTING BASIS, SHOWED A LOSS.  THE TAX COMMISSIONER OF
CALIFORNIA ALLOCATED TO THAT STATE A PERCENTAGE OF THE NET INCOME, AND
BASED THEREON A TAX UNDER THE STATE BANK AND CORPORATION FRANCHISE TAX
ACT.  THAT PERCENTAGE WAS DETERMINED BY AVERAGING THE PERCENTAGES WHICH
(A) VALUE OF REAL AND TANGIBLE PERSONAL PROPERTY, (B) WAGES, SALARIES,
COMMISSIONS AND OTHER COMPENSATION OF EMPLOYEES, AND (C) GROSS SALES,
LESS RETURNS AND ALLOWANCES, ATTRIBUTABLE TO THE CALIFORNIA STORE BORE
TO THE CORRESPONDING ITEMS OF ALL THE STORES.  HELD: 

(1)  THAT THE FORMULA OF APPORTIONMENT DID NOT VIOLATE THE FOURTEENTH
AMENDMENT.  P. 506. 

(2)  THE FACT THAT THE ACCOUNTING SYSTEM OF THE CALIFORNIA BRANCH
ATTRIBUTED NO NET INCOME TO THAT STATE DID NOT PROVE THAT THE TAX WAS
ON EXTRA-TERRITORIAL VALUES, SINCE ACCOUNTING PRACTICES FOR INCOME
STATEMENTS MAY VARY CONSIDERABLY ACCORDING TO THE PROBLEM AT HAND; AND
A PARTICULAR ACCOUNTING SYSTEM, THOUGH USEFUL OR NECESSARY AS A
BUSINESS AID, MAY NOT FIT THE DIFFERENT REQUIREMENTS WHEN A STATE SEEKS
TO TAX VALUES CREATED BY BUSINESS WITHIN ITS BORDERS.  P. 507. 

4.  THE RULING IN SAUNDERS V. SHAW, 244 U.S. 317, RELATIVE TO LACK OF
DUE PROCESS WHERE A STATE SUPREME COURT FINALLY DISPOSED OF A CASE ON A
NEW POINT AGAINST WHICH THE DEFEATED PARTY HAD HAD NO OPPORTUNITY OR
OCCASION TO MAKE DEFENSE, HELD INAPPLICABLE TO THE SITUATION IN THE
CASE AT BAR, IN WHICH IT WAS CLAIMED THAT THE APPELLATE COURT DEPARTED
FROM PROVISIONS OF THE STIPULATION OF FACTS UPON WHICH THE CASE WAS
TRIED.  P. 510. 

BUTLER BROTHERS V. MCCOLGAN, FRANCHISE TAX COMMISSIONER OF
CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT AGAINST THE APPELLANT IN A
SUIT TO RECOVER THE AMOUNT OF A STATE TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL (JUDICIAL CODE SEC. 237(A), 28 U.S.C. SEC. 344(A))
FROM A FINAL JUDGMENT OF THE SUPREME COURT OF CALIFORNIA SUSTAINING THE
VALIDITY OF A STATUTE OF CALIFORNIA AGAINST THE CLAIM THAT AS CONSTRUED
AND APPLIED TO APPELLANT IT VIOLATED THE FOURTEENTH AMENDMENT.  17
CAL.2D 664, 111 P.2D 334.  THE STATUTE IN QUESTION IS THE BANK AND
CORPORATION FRANCHISE TAX ACT.  2 GEN. L., ACT 8488, P. 3851; STAT.
1929, P. 19; AMENDED, STAT. 1931, P. 2226; STAT. 1935, P. 965.  SEC.
4(3) OF THAT ACT PROVIDES FOR AN ANNUAL CORPORATE FRANCHISE TAX PAYABLE
BY A CORPORATION DOING BUSINESS WITHIN THE STATE.  THE TAX IS MEASURED
BY THE CORPORATION'S NET INCOME AND IS AT THE RATE OF FOUR PER CENT
"UPON THE BASIS OF ITS NET INCOME" FOR THE PRECEDING YEAR.  THE MINIMUM
ANNUAL TAX IS $25.  SEC. 10 PRESCRIBES THE METHOD FOR COMPUTING THE NET
INCOME ON WHICH THE TAX IS LAID.  IT PROVIDES IN PART: 

"IF THE ENTIRE BUSINESS OF THE BANK OR CORPORATION IS DONE WITHIN
THIS STATE, THE TAX SHALL BE ACCORDING TO OR MEASURED BY ITS ENTIRE NET
INCOME; AND IF THE ENTIRE BUSINESS OF SUCH BANK OR CORPORATION IS NOT
DONE WITHIN THIS STATE, THE TAX SHALL BE ACCORDING TO OR MEASURED BY
THAT PORTION THEREOF WHICH IS DERIVED FROM BUSINESS DONE WITHIN THIS
STATE.  THE PORTION OF NET INCOME DERIVED FROM BUSINESS DONE WITHIN
THIS STATE, SHALL BE DETERMINED BY AN ALLOCATION UPON THE BASIS OF
SALES, PURCHASES, EXPENSES OF MANUFACTURER, PAY ROLL, VALUE AND SITUS
OF TANGIBLE PROPERTY, OR BY REFERENCE TO THESE OR OTHER FACTORS, OR BY
SUCH OTHER METHOD OF ALLOCATION AS IS FAIRLY CALCULATED TO ASSIGN TO
THE STATE THE PORTION OF NET INCOME REASONABLY ATTRIBUTABLE TO THE
BUSINESS DONE WITHIN THIS STATE AND TO AVOID SUBJECTING THE TAXPAYER TO
DOUBLE TAXATION." 

THE TAX IN DISPUTE IS FOR THE CALENDAR YEAR 1936.  APPELLANT PAID THE
MINIMUM TAX OF $25, ASSERTING THAT IT OPERATED IN CALIFORNIA DURING
1935 AT A LOSS OF $82,851.  THE TAX COMMISSIONER MADE AN ADDITIONAL
ASSESSMENT OF $3,798.43 WHICH APPELLANT PAID, TOGETHER WITH INTEREST,
UNDER PROTEST.  THIS SUIT WAS BROUGHT TO RECOVER BACK THE AMOUNT SO
PAID ON THE THEORY THAT THE METHOD OF ALLOCATION EMPLOYED BY THE TAX
COMMISSIONER ATTRIBUTED TO CALIFORNIA INCOME DERIVED WHOLLY FROM
BUSINESS DONE WITHOUT THAT STATE. 

THE FACTS ARE STIPULATED AND SHOW THE FOLLOWING.  APPELLANT IS AN
ILLINOIS CORPORATION QUALIFIED TO DO BUSINESS IN CALIFORNIA.  ITS HOME
OFFICE IS IN CHICAGO, ILLINOIS.  IT IS ENGAGED IN THE WHOLESALE DRY
GOODS AND GENERAL MERCHANDISE BUSINESS, PURCHASING FROM MANUFACTURERS
AND OTHERS AND SELLING TO RETAILERS ONLY.  IT HAS WHOLESALE
DISTRIBUTING HOUSES IN SEVEN STATES, INCLUDING ONE AT SAN FRANCISCO,
CALIFORNIA.  EACH OF ITS HOUSES IN THE SEVEN STATES MAINTAINS STOCKS OF
GOODS, SERVES A SEPARATE TERRITORY, HAS ITS OWN SALES FORCE, HANDLES
ITS OWN SALES AND ALL SOLICITATION, CREDIT AND COLLECTION ARRANGEMENTS
IN CONNECTION THEREWITH, AND KEEPS ITS OWN BOOKS OF ACCOUNT.  FOR THE
PERIOD IN QUESTION, ALL RECEIPTS FROM SALES IN CALIFORNIA WERE CREDITED
TO THE SAN FRANCISCO HOUSE.  APPELLANT MAINTAINS A CENTRAL BUYING
DIVISION THROUGH WHICH GOODS FOR RESALE ARE ORDERED, THE GOODS BEING
SHIPPED BY MANUFACTURERS TO THE HOUSES FOR WHICH THEY ARE ORDERED.  ALL
PURCHASES MADE BY APPELLANT FOR SALE AT ITS VARIOUS HOUSES ARE MADE
THROUGH THAT CENTRAL BUYING DIVISION.  THE COST OF THE GOODS AND THE
TRANSPORTATION CHARGES ARE ENTERED ON THE BOOKS OF THE HOUSE WHICH
RECEIVES THE GOODS.  NO CHARGES ARE MADE AGAINST ANY HOUSE FOR THE
BENEFIT OF APPELLANT OR ANY OF ITS OTHER HOUSES BY REASON OF THE
CENTRALIZED PURCHASING.  BUT THE ACTUAL COST OF OPERATING THE
CENTRALIZED BUYING DIVISION IS ALLOCATED AMONG THE HOUSES.  THE GREATER
PART OF APPELLANT'S OTHER OPERATING EXPENSES IS INCURRED DIRECTLY AND
EXCLUSIVELY AT THE RESPECTIVE HOUSES.  CERTAIN ITEMS OF EXPENSE ARE
INCURRED AND PAID BY APPELLANT FOR THE BENEFIT OF ALL THE HOUSES AND
ALLOCATED TO THEM.  NO QUESTION EXISTS AS TO THE ACCURACY OF THE
AMOUNTS OF SUCH EXPENSE OR THE METHOD OF ALLOCATION.  THE LATTER
ADMITTEDLY FOLLOWED RECOGNIZED ACCOUNTING PRINCIPLES.  FOR THE YEAR
1935 THE AMOUNT OF SUCH ALLOCATED EXPENSE CHARGED TO THE SAN FRANCISCO
HOUSE WAS $100,091.  FOR PURPOSES OF THIS SUIT IT WAS AGREED THAT
APPROXIMATELY 75% OF THAT AMOUNT WOULD HAVE BEEN INCURRED EVEN THOUGH
THE SAN FRANCISCO HOUSE WAS NOT OPERATED.  THE ACCURACY AND PROPRIETY
OF THE BASIS OF ALLOCATION OF THOSE COMMON EXPENSES FOR 1935 WERE
ADMITTED.  INCLUDED IN SUCH EXPENSES WERE EXECUTIVE SALARIES, CERTAIN
ACCOUNTING EXPENSES, THE COST OF OPERATING A CENTRAL BUYING DIVISION,
AND A CENTRAL ADVERTISING DIVISION.  EXCEPT FOR SUCH COMMON EXPENSES,
EACH HOUSE IS OPERATED INDEPENDENTLY OF EACH OTHER HOUSE.  APPELLANT
COMPUTED ITS INCOME FROM THE SAN FRANCISCO HOUSE FOR THE PERIOD IN
QUESTION BY DEDUCTING FROM THE GROSS RECEIPTS FROM SALES IN CALIFORNIA
THE COST OF SUCH MERCHANDISE, THE DIRECT EXPENSE OF THE SAN FRANCISCO
HOUSE, AND THE INDIRECT EXPENSE ALLOCATED TO IT.  BY THAT COMPUTATION A
LOSS OF $82,851 WAS DETERMINED.  IN THE YEAR 1935, THE OPERATIONS OF
ALL HOUSES OF APPELLANT PRODUCED A PROFIT OF $1,149,677.  THE TAX
COMMISSIONER ALLOCATED TO CALIFORNIA 8.1372 PER CENT. OF THAT AMOUNT. 
THAT PERCENTAGE WAS DETERMINED BY AVERAGING THE PERCENTAGES WHICH (A)
VALUE OF REAL AND TANGIBLE PERSONAL PROPERTY, (B) WAGES, SALARIES,
COMMISSIONS AND OTHER COMPENSATION OF EMPLOYEES, AND (C) GROSS SALES,
LESS RETURNS AND ALLOWANCES, ATTRIBUTABLE TO THE SAN FRANCISCO HOUSE
BORE TO THE CORRESPONDING ITEMS OF ALL HOUSES OF APPELLANT.  NO OTHER
FACTOR OR METHOD OF ALLOCATION WAS CONSIDERED.  THE PROPRIETY OF THE
USE OF THAT FORMULA IS NOT QUESTIONED IF BY REASON OF THE STIPULATED
FACTS A FORMULA FOR ALLOCATION TO CALIFORNIA OF A PORTION OF
APPELLANT'S INCOME FROM ALL SOURCES IS PROPER. 

THE STIPULATION ALSO STATES THAT, IN THE YEAR 1935, THE TOTAL SALES
MADE BY APPELLANT AT ALL ITS HOUSES AMOUNTED TO $66,326,000, OF WHICH
$5,206,000 WERE MADE BY THE SAN FRANCISCO HOUSE.  THE PURCHASES MADE
FOR THE ACCOUNT OF THAT HOUSE WERE SUBSTANTIALLY IN THE SAME PROPORTION
TO TOTAL PURCHASES.  BY REASON OF THE VOLUME OF PURCHASES MADE BY
APPELLANT, "MORE FAVORABLE PRICES ARE OBTAINED THAN WOULD BE OBTAINABLE
IN RESPECT OF PURCHASES FOR THE ACCOUNT OF ANY INDIVIDUAL HOUSE."  THE
ADDITION OF PURCHASES "IN AN AMOUNT EQUAL TO THE PURCHASES MADE FOR THE
ACCOUNT OF THE SAN FRANCISCO HOUSE RESULTS IN NO MORE FAVORABLE PRICES
THAN COULD BE OBTAINABLE IN RESPECT OF PURCHASES IN AN AMOUNT EQUAL TO
THE PURCHASES WHICH WOULD BE MADE" BY APPELLANT FOR ITS OTHER HOUSES IF
THE SAN FRANCISCO HOUSE WAS NOT IN EXISTENCE; AND "A REDUCTION IN THE
VOLUME OF PURCHASES IN AN AMOUNT EQUAL TO THE PURCHASES MADE FOR THE
SAN FRANCISCO HOUSE WOULD RESULT IN NO LESS FAVORABLE PRICES BEING
OBTAINABLE IN RESPECT OF THE PURCHASES WHICH WOULD BE MADE FOR THE
REMAINING HOUSES" OF APPELLANT. 

HANS REES' SONS V. NORTH CAROLINA, 283 U.S. 123, CONSTITUTES
APPELLANT'S CHIEF SUPPORT IN ITS ATTACK ON THE FORMULA EMPLOYED AND THE
TAX IMPOSED BY CALIFORNIA.  APPELLANT MAINTAINS THAT THE USE OF THE
FORMULA IN QUESTION RESULTED IN CONVERTING A LOSS OF $82,851 INTO A
PROFIT OF OVER $93,500 AND THAT THE DIFFERENCE OF SOME $175,000 HAS
EITHER BEEN CREATED OUT OF NOTHING OR HAS BEEN APPROPRIATED BY
CALIFORNIA FROM OTHER STATES. 

WE TAKE A DIFFERENT VIEW.  WE READ THE STATUTE AS CALLING FOR A
METHOD OF ALLOCATION WHICH IS "FAIRLY CALCULATED" TO ASSIGN TO
CALIFORNIA THAT PORTION OF THE NET INCOME "REASONABLY ATTRIBUTABLE" TO
THE BUSINESS DONE THERE.  THE TEST, NOT HERE CHALLENGED, WHICH HAS BEEN
REFLECTED IN PRIOR DECISIONS OF THIS COURT, IS CERTAINLY NOT MORE
EXACTING.  BASS, RATCLIFF & GRETTON, LTD. V. TAX COMMISSION, 266 U.S.
271; FORD MOTOR CO. V. BEAUCHAMP, 308 U.S. 331.  HENCE, IF THE FORMULA
WHICH WAS EMPLOYED MEETS THOSE STANDARDS, ANY CONSTITUTIONAL QUESTION
ARISING UNDER THE FOURTEENTH AMENDMENT IS AT AN END. 

ONE WHO ATTACKS A FORMULA OF APPORTIONMENT CARRIES A DISTINCT BURDEN
OF SHOWING BY "CLEAR AND COGENT EVIDENCE" THAT IT RESULTS IN
EXTRATERRITORIAL VALUES BEING TAXED.  SEE NORFOLK & WESTERN RY. CO. V.
NORTH CAROLINA, 297 U.S. 682, 688.  THIS COURT HELD IN HANS REES' SONS
V. NORTH CAROLINA, SUPRA, P. 135, THAT THAT BURDEN HAD BEEN MAINTAINED
ON A SHOWING BY THE TAXPAYER THAT "IN ANY ASPECT OF THE EVIDENCE" ITS
INCOME ATTRIBUTABLE TO NORTH CAROLINA WAS "OUT OF ALL APPROPRIATE
PROPORTION TO THE BUSINESS" TRANSACTED BY THE TAXPAYER IN THAT STATE. 
NO SUCH SHOWING HAS BEEN MADE HERE. 

IT IS TRUE THAT APPELLANT'S SEPARATE ACCOUNTING SYSTEM FOR ITS SAN
FRANCISCO BRANCH ATTRIBUTED NO NET INCOME TO CALIFORNIA.  BUT WE NEED
NOT IMPEACH THE INTEGRITY OF THAT ACCOUNTING SYSTEM TO SAY THAT IT DOES
NOT PROVE APPELLANT'S ASSERTION THAT EXTRATERRITORIAL VALUES ARE BEING
TAXED.  ACCOUNTING PRACTICES FOR INCOME STATEMENTS MAY VARY
CONSIDERABLY ACCORDING TO THE PROBLEM AT HAND.  SANDERS, HATFIELD &
MOORE, A STATEMENT OF ACCOUNTING PRINCIPLES (1938), P. 26.  A
PARTICULAR ACCOUNTING SYSTEM, THOUGH USEFUL OR NECESSARY AS A BUSINESS
AID, MAY NOT FIT THE DIFFERENT REQUIREMENTS WHEN A STATE SEEKS TO TAX
VALUES CREATED BY BUSINESS WITHIN ITS BORDERS.  CF. HAMILTON, COST AS A
STANDARD FOR PRICE, 4 LAW & CONTEMPORARY PROBLEMS 321.  THAT MAY BE DUE
TO THE FACT, AS STATED BY MR. JUSTICE BRANDEIS IN UNDERWOOD TYPEWRITER
CO. V. CHAMBERLAIN, 254 U.S. 113, 121, THAT A STATE IN ATTEMPTING TO
PLACE UPON A BUSINESS EXTENDING INTO SEVERAL STATES "ITS FAIR SHARE OF
THE BURDEN OF TAXATION" IS "FACED WITH THE IMPOSSIBILITY OF ALLOCATING
SPECIFICALLY THE PROFITS EARNED BY THE PROCESSES CONDUCTED WITHIN ITS
BORDERS."  FURTHERMORE, THE PARTICULAR SYSTEM USED MAY NOT REVEAL THE
FACTS BASIC TO THE STATE'S DETERMINATION.  BASS, RATCLIFF & GRETTON,
LTD. V. TAX COMMISSION, SUPRA, P. 283.  IN EITHER ASPECT OF THE MATTER,
THE RESULTS OF THE ACCOUNTING SYSTEM EMPLOYED BY APPELLANT DO NOT
IMPEACH THE VALIDITY OR PROPRIETY OF THE FORMULA WHICH CALIFORNIA HAS
APPLIED HERE. 

AT LEAST SINCE ADAMS EXPRESS CO. V. OHIO, 165 U.S. 194, THIS COURT
HAS RECOGNIZED THAT UNITY OF USE AND MANAGEMENT OF A BUSINESS WHICH IS
SCATTERED THROUGH SEVERAL STATES MAY BE CONSIDERED WHEN A STATE
ATTEMPTS TO IMPOSE A TAX ON AN APPORTIONMENT BASIS.  AS STATED IN HANS
REES' SONS V. NORTH CAROLINA, SUPRA, P. 133, "  ...  THE ENTERPRISE OF
A CORPORATION WHICH MANUFACTURES AND SELLS ITS MANUFACTURED PRODUCT IS
ORDINARILY A UNITARY BUSINESS, AND ALL THE FACTORS IN THAT ENTERPRISE
ARE ESSENTIAL TO THE REALIZATION OF PROFITS."  AND SEE BASS, RATCLIFF &
GRETTON, LTD. V. TAX COMMISSION, SUPRA, P. 282.  BY THE SAME TOKEN,
CALIFORNIA MAY PROPERLY TREAT APPELLANT'S BUSINESS AS A UNITARY ONE. 
CF. GREAT ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S. 412.  THERE
IS UNITY OF OWNERSHIP AND MANAGEMENT.  AND THE OPERATION OF THE CENTRAL
BUYING DIVISION ALONE DEMONSTRATES THAT FUNCTIONALLY THE VARIOUS
BRANCHES ARE CLOSELY INTEGRATED.  ADMITTEDLY, CENTRALIZED PURCHASING
RESULTS IN MORE FAVORABLE PRICES BEING OBTAINED THAN IF THE PURCHASES
WERE SEPARATELY MADE FOR THE ACCOUNT OF ANY ONE BRANCH.  WHAT THE
SAVINGS WERE AND WHAT PORTION IS FAIRLY ATTRIBUTABLE TO THE VOLUME
CONTRIBUTED BY THE SAN FRANCISCO BRANCH DO NOT APPEAR.  BUT THE
CONCESSION THAT A REDUCTION OR ADDITION OF PURCHASES "IN AN AMOUNT
EQUAL TO THE PURCHASES MADE FOR THE SAN FRANCISCO HOUSE" WOULD NOT
RESULT IN HIGHER OR LOWER PURCHASE PRICES RESPECTIVELY DOES NOT AID
APPELLANT'S CASE.  THERE IS NO JUSTIFICATION ON THIS RECORD FOR
SINGLING OUT THE SAN FRANCISCO BRANCH RATHER THAN ANOTHER AND
CONCLUDING THAT IT MADE NO CONTRIBUTION TO THOSE SAVINGS.  AS APTLY
STATED BY THE SUPREME COURT OF CALIFORNIA, "IF THE OMISSION OF THE
CALIFORNIA SALES WOULD HAVE NO EFFECT ON THE PURCHASING POWER, THE
OMISSION OF SALES IN AN EQUAL AMOUNT WHEREVER MADE WOULD LIKEWISE HAVE
NO EFFECT ON THE COMPANY'S ABILITY TO PURCHASE AT A SAVING.  THUS, BY
PROCEEDING IN TURN FROM STATE TO STATE, IT COULD BE SHOWN THAT NONE OF
THE SALES IN ANY OF THE STATES SHOULD BE CREDITED WITH THE INCOME
RESULTING FROM THE PURCHASING OF GOODS IN LARGE QUANTITIES."  NOR ARE
THERE ANY FACTS SHOWN WHICH PERMIT THE CONCLUSION THAT THE OTHER
ADVANTAGES OF CENTRALIZED MANAGEMENT (GREAT ATLANTIC & PACIFIC TEA CO.
V. GROSJEAN, SUPRA) ARE ATTRIBUTABLE TO OTHER BRANCHES BUT NOT TO THE
ONE IN CALIFORNIA.  THE FACT OF THE MATTER IS THAT APPELLANT HAS NOT
SHOWN THE PRECISE SOURCES OF ITS NET INCOME OF $1,149,677.  IF FACTORS
WHICH ARE RESPONSIBLE FOR THAT NET INCOME ARE PRESENT IN OTHER STATES
BUT NOT PRESENT IN CALIFORNIA, THEY HAVE NOT BEEN REVEALED.  AT LEAST
IN ABSENCE OF THAT PROOF, CALIFORNIA WAS JUSTIFIED IN ASSUMING THAT THE
SAN FRANCISCO BRANCH CONTRIBUTED ITS ALIQUOT SHARE TO THE ADVANTAGES OF
CENTRALIZED MANAGEMENT OF THIS UNITARY ENTERPRISE AND TO THE NET INCOME
EARNED.    WE CANNOT SAY THAT PROPERTY, PAY ROLL, AND SALES ARE
INAPPROPRIATE INGREDIENTS OF AN APPORTIONMENT FORMULA.  WE AGREE WITH
THE SUPREME COURT OF CALIFORNIA THAT THESE FACTORS MAY PROPERLY BE
DEEMED TO REFLECT "THE RELATIVE CONTRIBUTION OF THE ACTIVITIES IN THE
VARIOUS STATES TO THE PRODUCTION OF THE TOTAL UNITARY INCOME," SO AS TO
ALLOCATE TO CALIFORNIA ITS JUST PROPORTION OF THE PROFITS EARNED BY
APPELLANT FROM THIS UNITARY BUSINESS.  AND NO SHOWING HAS BEEN MADE
THAT INCOME UNCONNECTED WITH THE UNITARY BUSINESS HAS BEEN USED IN THE
FORMULA. 

THE STIPULATION OF FACTS STATES THAT, IF "THE COURT DEEMS THAT IT IS
BOUND BY ANY INFERENCE OR PRESUMPTION RESPECTING THE ASSESSMENT MADE BY
THE COMMISSIONER, OR THAT THIS STIPULATION FAILS TO ESTABLISH ANY FACT
NECESSARY TO A DECISION, THE CASE SHALL BE REOPENED FOR THE TAKING OF
FURTHER PROOFS IN RESPECT THEREOF."  APPELLANT IN ITS PETITION FOR
REHEARING BEFORE THE SUPREME COURT OF CALIFORNIA RELIED ON THAT PART OF
THE STIPULATION IN URGING THAT THE CAUSE BE REMANDED FOR A FURTHER
HEARING SINCE THAT COURT CONCLUDED THAT "APPELLANT HAS NOT FURNISHED
ANY EXPLANATION OF WHY ITS CALIFORNIA BUSINESS DIFFERS SO FROM THE
AVERAGE THAT THE FORMULA PRODUCED AN ERRONEOUS RESULT."  THE PETITION
FOR REHEARING WAS DENIED.  APPELLANT NOW ASSERTS THAT IT HAS BEEN
DENIED PROCEDURAL DUE PROCESS UNDER THE RULE OF SAUNDERS V. SHAW, 244
U.S. 317.  WE DO NOT AGREE.  THE SUPREME COURT OF CALIFORNIA CREATED NO
INNOVATION AND SPRUNG NO SURPRISE WHEN IT PLACED ON APPELLANT THE
BURDEN OF ESTABLISHING THAT THE FORMULA TAXED EXTRATERRITORIAL VALUES. 
AS WE HAVE NOTED, THAT IS SETTLED DOCTRINE.  APPELLANT HAD A FULL
OPPORTUNITY TO BE HEARD ON THE ISSUES WHICH IT TENDERED.  AFFIRMED. 
..END :







UNITED STATES V. NEW YORK, 315 U.S. 510 


NO. 238.  ARGUED FEBRUARY 2, 1942.  - DECIDED MARCH 2, 1942.  - 118 F.2D
537, REVERSED. 


1.  UNDER SECS. 801 AND 802 OF TITLE VIII OF THE SOCIAL SECURITY ACT,
AN EMPLOYER IS REQUIRED TO COLLECT THE TAX LAID ON THE WAGE INCOMES OF
HIS EMPLOYEES, BUT IS LIABLE FOR ITS PAYMENT WHETHER OR NOT HE COLLECTS
IT.  P. 515. 

2.  THIS LIABILITY OF THE EMPLOYER IS A TAX, AND A CLAIM THEREON IS
ENTITLED TO PRIORITY AS FOR A TAX UNDER SEC. 64(A)(4) OF THE BANKRUPTCY
ACT.  P. 515. 

3.  A TAX FOR THE PURPOSES OF SEC. 64(A)(4) OF THE BANKRUPTCY ACT
INCLUDES ANY PECUNIARY BURDEN UPON INDIVIDUALS OR PROPERTY FOR THE
PURPOSE OF SUPPORTING THE GOVERNMENT.  P. 515. 

4.  THE PROVISION OF SEC. 902 OF TITLE IX OF THE SOCIAL SECURITY ACT
ALLOWING THE EMPLOYER TO CREDIT AGAINST HIS TAX, UNDER SEC. 901, THE
AMOUNT OF HIS CONTRIBUTIONS TO STATE UNEMPLOYMENT FUNDS UP TO 90% OF
THE TAX, DOES NOT MAKE THE TAX TO THAT EXTENT A PENALTY, WITHIN THE
MEANING OF SEC. 57(J) OF THE BANKRUPTCY ACT, AS APPLIED TO AN EMPLOYER
WHO HAS FAILED TO MAKE SUCH CONTRIBUTIONS.  P. 516. 

5.  IN DETERMINING THE AMOUNTS DISTRIBUTABLE TO THE UNITED STATES ON
ITS TAX CLAIM AND TO THE STATE FOR ITS UNEMPLOYMENT FUND, UNDER SECS.
901 AND 902 OF TITLE IX OF THE SOCIAL SECURITY ACT, FROM A BANKRUPT
ESTATE WHOSE ASSETS WERE INSUFFICIENT TO SATISFY THESE AND OTHER CLAIMS
OF PRIORITY, HELD THAT THE ALLOWANCE TO BE MADE FOR THE STATE FUND
SHOULD BE CREDITED AGAINST THE TOTAL TAX CLAIM OF THE UNITED STATES
UNDER SEC. 901, RATHER THAN AGAINST THE AMOUNT ACTUALLY AVAILABLE FOR
SUCH CLAIM.  P. 520. 

UNITED STATES V. NEW YORK.* 

*TOGETHER WITH NO. 251, NEW YORK V. UNITED STATES, ALSO ON WRIT OF
CERTIORARI, 314 U.S. 592, TO THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 314 U.S. 592, ON CROSS-PETITIONS, TO REVIEW A JUDGMENT
REVERSING PART OF AN ORDER OF THE DISTRICT COURT, 38 F.SUPP.  976, FOR
THE DISTRIBUTION OF ASSETS OF A BANKRUPT ESTATE. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES AND THE STATE OF NEW YORK SEEK REVIEW OF A JUDGMENT
OF THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSING IN
PART A DISTRICT COURT ORDER FOR THE DISTRIBUTION OF THE ASSETS OF A
BANKRUPT ESTATE.  THE INDEPENDENT AUTOMOBILE FORWARDING CORPORATION WAS
ADJUDICATED A BANKRUPT ON APRIL 26, 1938.  A TOTAL OF $3,053.20
EVENTUALLY BECAME AVAILABLE FOR DISTRIBUTION.  THIS AMOUNT WAS
INSUFFICIENT EVEN TO MEET THOSE CLAIMS OF THE FEDERAL AND STATE
GOVERNMENTS WHICH WERE ASSERTEDLY ENTITLED TO PRIORITY AS TAXES UNDER
SEC. 64(A)(4) OF THE BANKRUPTCY ACT.  FN1  THE FEDERAL CLAIMS OF THIS
CHARACTER WERE FOR AMOUNTS DUE UNDER SECS. 801 AND 802 OF TITLE VIII
AND UNDER SEC. 901 OF TITLE IX OF THE SOCIAL SECURITY ACT,  FN2  AND
FOR CERTAIN TAXES AS TO WHICH NO QUESTION IS RAISED IN THIS CASE.  THE
STATE CLAIMS WERE FOR PAYMENTS DUE ITS UNEMPLOYMENT INSURANCE FUND, AND
FOR TAXES NOT IN ISSUE HERE. 

THE STATE'S APPEAL FROM THE DISTRICT COURT'S FIRST ORDER OF
DISTRIBUTION WAS DISCONTINUED BY AGREEMENT OF THE PARTIES BECAUSE THE
SOCIAL SECURITY ACT HAD BEEN EXTENSIVELY AMENDED WHILE THE APPEAL WAS
PENDING.  FN3  A SECOND ORDER WAS THEREUPON ENTERED BY THE DISTRICT
COURT.  THE STATE AGAIN APPEALED TO THE CIRCUIT COURT OF APPEALS.  IT
CONTENDED THAT THE SHARE OF THE ASSETS GRANTED TO THE FEDERAL
GOVERNMENT WAS EXCESSIVE FOR THREE REASONS:  (1) THE CLAIM BASED ON
SEC. 801 OF TITLE VIII OF THE SOCIAL SECURITY ACT WAS A CLAIM FOR A
DEBT RATHER THAN FOR TAXES AND THUS WAS NOT ENTITLED TO PRIORITY UNDER
SEC. 64(A)(4) OF THE BANKRUPTCY ACT; (2) NO MORE THAN 10% OF THE CLAIM
BASED ON SEC. 901 OF TITLE IX OF THE SOCIAL SECURITY ACT WAS ENTITLED
TO ALLOWANCE BECAUSE THE BALANCE CONSTITUTED A CLAIM FOR A PENALTY
RATHER THAN A TAX AND THUS FELL WITHIN THE PROHIBITION OF SEC. 57(J) OF
THE BANKRUPTCY ACT; FN4  AND (3) THE CREDIT AGAINST THE TITLE IX CLAIM
PROVIDED FOR IN SEC. 902 WAS INCORRECTLY CALCULATED.  THE CIRCUIT COURT
OF APPEALS SUSTAINED THE STATE'S CONTENTION WITH RESPECT TO THE TITLE
VIII CLAIM AND REVERSED TO THAT EXTENT THE ORDER OF THE DISTRICT COURT,
BUT REJECTED THE STATE'S ARGUMENTS WITH RESPECT TO THE CLAIM UNDER
TITLE IX. 

FIRST.  THE CLAIM BASED ON TITLE VIII.  SECTION 801 BEARS THE HEADING
"INCOME TAX ON EMPLOYEES" AND PROVIDES FOR A TAX "UPON THE INCOME OF
EVERY INDIVIDUAL" EQUAL TO 1 PER CENTUM OF THE WAGES RECEIVED BY HIM
WITH RESPECT TO EMPLOYMENT DURING 1937.  FN5  SECTION 802(A) PROVIDES
THAT THIS TAX "SHALL BE COLLECTED BY THE EMPLOYER OF THE TAXPAYER, BY
DEDUCTING THE AMOUNT OF THE TAX FROM THE WAGES AS AND WHEN PAID."  THE
EMPLOYER IS MADE LIABLE FOR THE PAYMENT OF THE TAX.  BY REGULATION,
PURSUANT TO TITLE VIII,  FN6  THE TREASURY DEPARTMENT HAS EXPLICITLY
RULED THAT THE TAX MAY BE ASSESSED AGAINST THE EMPLOYER, REGARDLESS OF
WHETHER HE HAS IN FACT DEDUCTED IT FROM THE EMPLOYEE'S WAGES.  THE
CIRCUIT COURT OF APPEALS HELD THAT THE EMPLOYER WAS LIABLE "ONLY AS AN
AGENT BOUND TO PAY WHETHER ITS DUTY TO COLLECT WAS PERFORMED OR NOT"
AND THAT HIS LIABILITY WAS FOR A DEBT RATHER THAN FOR TAXES.  118 F.2D
537. 

AS AUTHORITY FOR THIS VIEW, IT RELIED UPON ITS DECISION OF THE SAME
DATE IN CITY OF NEW YORK V. FEIRING, 118 F.2D 329.  THE CITY SALES TAX
INVOLVED IN THAT CASE WAS LAID UPON RECEIPTS FROM SALES OF PERSONAL
PROPERTY.  THE VENDOR WAS REQUIRED TO COLLECT THE AMOUNT OF THE TAX
FROM THE VENDEE SEPARATELY FROM THE SALES PRICE.  HE WAS OBLIGED TO
REPORT PERIODICALLY CONCERNING HIS RECEIPTS FROM SALES AND TO TURN OVER
TO THE CITY COMPTROLLER THE TAXES DUE, WHETHER OR NOT HE HAD ACTUALLY
COLLECTED THEM FROM THE PURCHASERS.  IF THE VENDOR FAILED TO COLLECT
THE TAX, THE VENDEE WAS REQUIRED TO REPORT THE TRANSACTION AND TO PAY
THE TAX DIRECTLY.  THUS, THE PROCEDURE CONTEMPLATED WAS THAT THE
PURCHASER SHOULD BEAR THE BURDEN OF THE TAX, BUT THAT THE SELLER SHOULD
COLLECT AND TRANSMIT IT TO THE COMPTROLLER.  IF THE SELLER DID NOT
OBTAIN IT FROM THE PURCHASER, HOWEVER, THE COMPTROLLER WAS AUTHORIZED
TO PROCEED TO COLLECT IT FROM EITHER OF THEM.  THE CIRCUIT COURT OF
APPEALS HELD THAT THE CLAIM OF THE CITY AGAINST A BANKRUPT VENDOR FOR
THE AMOUNT OF THE SALES TAX OUTSTANDING WAS A CLAIM FOR A DEBT AND NOT
FOR TAXES, WITHIN THE MEANING OF SEC. 64(A)(4).  WE REVERSED THIS
DECISION AND HELD THAT THE BURDEN IMPOSED UPON THE SELLER BY THE CITY
TAXING ACT HAD "ALL THE CHARACTERISTICS OF A TAX ENTITLED TO PRIORITY"
UNDER SEC. 64(A)(4).  313 U.S. 283. 

WE THINK THAT OUR DECISION IN THE FEIRING CASE IS CONTROLLING HERE. 
THE NEW YORK CITY SALES TAX INVOLVED IN THAT CASE AND THE OBLIGATION
IMPOSED BY SECS. 801 AND 802 OF TITLE VIII OF THE SOCIAL SECURITY ACT
CANNOT BE DISTINGUISHED IN ANY MATERIAL RESPECT.  IT WAS OBSERVED IN
THE FEIRING CASE THAT, WHILE THE SALES TAX WAS INTENDED TO REST UPON
THE PURCHASER "IN ITS NORMAL OPERATION," "BOTH THE VENDOR AND THE
VENDEE ARE MADE LIABLE FOR PAYMENT OF THE TAX IN INVITUM  ...  AND THE
TAX MAY BE SUMMARILY COLLECTED BY DISTRAINT OF THE PROPERTY OF EITHER
THE SELLER OR THE BUYER."  313 U.S. 283, AT 287.  THE BURDEN OF THE TAX
PROVIDED FOR BY SECS. 801 AND 802 LIKEWISE WILL NORMALLY REST UPON THE
EMPLOYEE, BUT THE COMMISSIONER OF INTERNAL REVENUE MAY PROCEED TO
COLLECT IT FROM THE EMPLOYER WHETHER OR NOT HE HAS DEDUCTED IT FROM THE
WAGES OF THE EMPLOYEE. 

TWO DISTINCTIONS BETWEEN THE CASES ARE URGED BY THE STATE.  ONE IS
THAT SEC. 802(A) OF TITLE VIII PROVIDES THAT THE TAX "SHALL BE
COLLECTED BY THE EMPLOYER OF THE TAXPAYER" AND THUS REVEALS A
CONGRESSIONAL INTENT THAT ONLY A CLAIM AGAINST THE EMPLOYEE SHOULD BE
TREATED AS ONE FOR A TAX.  THE OTHER ASSERTED DISTINCTION IS THAT TITLE
VIII IN ITS ENTIRETY IS DESIGNED TO IMPOSE TWO DISTINCT TAXES; SEC. 801
IMPOSES AN "INCOME TAX" UPON THE EMPLOYEE, WHILE SEC. 804 IMPOSES AN
"EXCISE TAX" UPON THE EMPLOYER.  FN7  BUT A TAX FOR PURPOSES OF SEC.
64(A)(4) INCLUDES ANY "PECUNIARY BURDEN LAID UPON INDIVIDUALS OR
PROPERTY FOR THE PURPOSE OF SUPPORTING THE GOVERNMENT," BY WHATEVER
NAME IT MAY BE CALLED.  NEW JERSEY V. ANDERSON, 203 U.S. 483, 492. 
ALTHOUGH HE MAY NOT BE REFERRED TO IN SECS. 801 AND 802 AS THE
TAXPAYER, AND ALTHOUGH HE MAY ALSO BE SUBJECT TO THE "EXCISE TAX"
PRESCRIBED BY SEC. 804, THE PLAIN FACT IS THAT THE EMPLOYER IS LIABLE
FOR THE SEC. 801 TAX WHETHER OR NOT BE HAS COLLECTED IT FROM HIS
EMPLOYEES.  WE THEREFORE HOLD THAT THE TITLE VIII CLAIM OF THE UNITED
STATES AGAINST THE ESTATE OF THIS BANKRUPT EMPLOYER IS ENTITLED TO THE
PRIORITY AFFORDED BY SEC. 64(A)(4). 

SECOND.  THE CLAIM UNDER TITLE IX.  SECTION 901 IMPOSES UPON THIS
EMPLOYER, IN ADDITION TO THE OBLIGATIONS DISCUSSED ABOVE, AN "EXCISE
TAX" EQUAL TO 2 PER CENTUM OF THE TOTAL WAGES PAYABLE BY HIM DURING
1937.  SECTION 902, HOWEVER, PERMITS HIM TO CREDIT "AGAINST THE TAX
IMPOSED BY SEC. 901" THE AMOUNT OF HIS 1937 CONTRIBUTIONS TO THE STATE
UNEMPLOYMENT FUND, BUT PROVIDES THAT THE TOTAL CREDIT "SHALL NOT EXCEED
90 PER CENTUM OF THE TAX AGAINST WHICH IT IS CREDITED." 

(A)  THE STATE CONTENDS THAT SEC. 902(A) IN EFFECT EXACTS A PENALTY,
EQUAL TO 90% OF THE AMOUNT OF THE TAX LEVIED BY SEC. 901, FROM AN
EMPLOYER WHO FAILS TO MAKE THE PAYMENTS TO THE STATE UNEMPLOYMENT FUND
REQUIRED BY STATE LAW.  SINCE SEC. 57(J) OF THE BANKRUPTCY ACT PROVIDES
THAT CLAIMS BY THE UNITED STATES FOR PENALTIES ARE NOT ALLOWABLE,  FN8
IT ARGUES, ONLY 10% OF THE TAX IMPOSED BY SEC. 901 IS ACTUALLY A TAX
FOR PURPOSES OF SEC. 64(A)(4) OF THE BANKRUPTCY ACT.  THERE IS NO MERIT
TO THIS CONTENTION.  WHILE THE ISSUE HERE IS CAST IN SOMEWHAT DIFFERENT
TERMS, IT IS SIMILAR IN OUTLINE TO THAT RAISED BY THE CONSTITUTIONAL
OBJECTION TO THE ACT WHICH WAS SET TO REST IN STEWARD MACHINE CO. V.
DAVIS, 301 U.S. 548.  THERE IT WAS ARGUED THAT THE 90% CREDIT
PROVISIONS AMOUNTED TO COERCION OF THE STATES WHICH WAS REPUGNANT TO
THE TENTH AMENDMENT AND TO THE FEDERAL SYSTEM.  THE COURT RECOGNIZED
THAT THE EFFECT OF THE SCHEME WAS TO ENCOURAGE THE STATES TO ESTABLISH
AND MAINTAIN UNEMPLOYMENT INSURANCE FUNDS AND THUS TO COOPERATE WITH
THE FEDERAL GOVERNMENT IN MEETING A COMMON PROBLEM.  IT OBSERVED THAT
"EVERY REBATE FROM A TAX WHEN CONDITIONED UPON CONDUCT IS IN SOME
MEASURE A TEMPTATION" BUT IT CONCLUDED THAT "TO HOLD THAT MOTIVE OR
TEMPTATION IS EQUIVALENT TO COERCION IS TO PLUNGE THE LAW IN ENDLESS
DIFFICULTIES," AND TO ACCEPT "A PHILOSOPHICAL DETERMINISM BY WHICH
CHOICE BECOMES IMPOSSIBLE."  301 U.S. AT 589-590.  THESE CONSIDERATIONS
ARE EQUALLY PERTINENT TO THE SUGGESTION THAT THE 90% REBATE ARRANGEMENT
CONSTITUTES THE IMPOSITION OF A "PENALTY" WITHIN THE MEANING OF SEC.
57(J) UPON AN EMPLOYER WHO FAILS OR REFUSES TO CONTRIBUTE TO A STATE
FUND.  THE AMOUNT OF THE TAX ASSESSABLE UNDER SEC. 901 IS DEFINITE AND
FIXED, ONCE THE SINGLE VARIABLE, THE TOTAL OF THE WAGES PAID DURING THE
YEAR, IS DETERMINED.  ALTHOUGH THE EMPLOYER IS FREE TO OBTAIN A CREDIT
AGAINST IT BY CONTRIBUTING TO HIS STATE FUND, IT CANNOT BE SAID THAT IT
IS ANY THE LESS A TAX BECAUSE THE EMPLOYER HAS FAILED, EITHER THROUGH
CHOICE OR LACK OF RESOURCES, TO MAKE SUCH A CONTRIBUTION.  EITHER THE
STATE OR THE FEDERAL GOVERNMENT MUST PROVIDE THE MONEY TO MEET THE
REQUIREMENTS OF RELIEF TO THE UNEMPLOYED.  BY HIS CONTRIBUTIONS TO THE
STATE, AN EMPLOYER HAS DIMINISHED THE DEMAND UPON THE FINANCIAL
RESOURCES OF THE FEDERAL GOVERNMENT.  BUT BY HIS FAILURE TO CONTRIBUTE,
THE EMPLOYER HAS INCREASED THIS DEMAND AND SHARPENED THE NECESSITY FOR
OBTAINING THE REVENUES REQUIRED TO SATISFY IT.  THE EFFORT BY THE
UNITED STATES TO OBTAIN THE REVENUE BY DENYING THE CREDIT MUST BE
REGARDED AS THE LEVYING OF A TAX AND NOT AS THE EXACTION OF A PENALTY. 
FN9 

(B)  FINALLY THE STATE CONTENDS THAT THE DISTRICT COURT APPLIED AN
INCORRECT FORMULA IN DETERMINING THE AMOUNT OF THE CREDIT DEDUCTIBLE
UNDER SEC. 902.  SECTION 902 PROVIDES:  "THE TAXPAYER MAY CREDIT
AGAINST THE TAX IMPOSED BY SEC. 901 OF THIS CHAPTER THE AMOUNT OF
CONTRIBUTIONS, WITH RESPECT TO EMPLOYMENT DURING THE TAXABLE YEAR, PAID
BY HIM (BEFORE THE DATE OF FILING HIS RETURN FOR THE TAXABLE YEAR)
FN10  INTO AN UNEMPLOYMENT FUND UNDER A STATE LAW.  THE TOTAL CREDIT
ALLOWED TO A TAXPAYER UNDER THIS SECTION FOR ALL CONTRIBUTIONS PAID
INTO UNEMPLOYMENT FUNDS WITH RESPECT TO EMPLOYMENT DURING SUCH TAXABLE
YEAR SHALL NOT EXCEED 90 PER CENTUM OF THE TAX AGAINST WHICH IT IS
CREDITED  ..."  IN THE CASE OF A BANKRUPT WHO HAS NOT MADE ANY
CONTRIBUTION TO THE STATE UNEMPLOYMENT FUND AT THE TIME OF ADJUDICATION
AND WHOSE ASSETS ARE INSUFFICIENT TO MEET THE TOTAL OF THE CLAIMS OF
EQUAL PRIORITY, THE CALCULATION OF THE CREDIT IS BESET WITH SOME
DIFFICULTY.  THE AMOUNT AVAILABLE FOR THE STATE'S CLAIM FOR ITS
UNEMPLOYMENT INSURANCE FUND IS CONTINGENT UPON THE SUMS ALLOWED ON THE
OTHER CLAIMS, INCLUDING THAT OF THE FEDERAL GOVERNMENT UNDER SEC. 901. 
THE AMOUNT TO BE ALLOWED ON THE CLAIM OF THE UNITED STATES IS IN TURN
DEPENDENT UPON THE CREDIT DEDUCTIBLE FROM IT UNDER THE TERMS OF SEC.
902.  AND THIS CREDIT UNDER SEC. 902 IS DETERMINED BY THE SUM GRANTED
ON THE STATE'S UNEMPLOYMENT INSURANCE FUND CLAIM. 

BECAUSE OF THIS MUTUAL DEPENDENCE, THE COURTS BELOW HAVE ACCEPTED AND
APPROVED AN ALGEBRAIC SOLUTION OF THE PROBLEM.  UNDER THIS SOLUTION,
THE CLAIM FOR THE TAX ASSESSED UNDER SEC. 901 IS DIMINISHED BY
SUBTRACTING FROM IT AN AMOUNT EQUAL TO THE SUM ALLOWED TO THE STATE FOR
ITS UNEMPLOYMENT FUND.  THE FORMULA BY WHICH THIS IS ACCOMPLISHED IS
REDUCIBLE TO A QUADRATIC EQUATION CAPABLE OF SOLUTION BY THE RECOGNIZED
METHOD. 

AS AGAINST THIS ALGEBRAIC SOLUTION, THE STATE URGES AN ARITHMETICAL
CALCULATION WHICH WOULD AFFORD IT A LARGER SHARE OF THE ASSETS.  IN
BRIEF, THE STATE'S THEORY IS AS FOLLOWS:  THE AMOUNT OF EACH OF THE
SEVERAL CLAIMS OF THE STATE AND OF THE UNITED STATES SHOULD BE DIVIDED
BY THE TOTAL OF SUCH CLAIMS.  THE PERCENTAGE OF THE ASSETS DUE ON EACH
CLAIM IS THUS DETERMINED.  THE TOTAL OF THE ASSETS AVAILABLE IS THEN
MULTIPLIED IN TURN BY THESE PERCENTAGES, AND THE ACTUAL SUM TO BE
ALLOWED ON EACH CLAIM IS FOUND.  HOWEVER, THE AMOUNT ALLOWED ON THE
FEDERAL GOVERNMENT'S CLAIM UNDER SEC. 901 IS THEN MULTIPLIED BY 10%.
THE SUM EQUAL TO THIS 10% IS THEREUPON CONCLUSIVELY GRANTED TO THE
UNITED STATES.  BUT THE REMAINING AMOUNT, EQUAL TO 90%, IS RETURNED TO
THE ESTATE AS A SECOND FUND TO BE DIVIDED AMONG ALL THE CLAIMS IN THE
SAME MANNER.  THE SHARE OF THIS SECOND FUND WHICH BY THIS COMPUTATION
WOULD GO TO THE UNITED STATES ON ITS SEC. 901 CLAIM IS AGAIN MULTIPLIED
BY 10%, WITH THE BALANCE OF 90% RETURNING TO FORM A THIRD FUND.  THE
PROCESS IS REPEATED UNTIL THE STILL UNDISTRIBUTED ASSETS REACH A
VANISHING POINT.    IT WILL BE OBSERVED THAT WHILE THE ONE SOLUTION IS
ALGEBRAIC AND THE OTHER ARITHMETIC, THERE IS LITTLE TO CHOOSE BETWEEN
THEM IN TERMS OF COMPLEXITY.  THE OBVIOUS FACT IS THAT NEITHER THE
BANKRUPTCY ACT NOR THE SOCIAL SECURITY ACT AFFORDS THE COURTS ANY
MEANINGFUL ASSISTANCE IN SOLVING THE PROBLEM RAISED BY THIS CASE.  AND
THEIR LEGISLATIVE HISTORY IS EQUALLY BARREN. 

THE STATE OBJECTS TO THE FORMULA APPLIED BELOW BECAUSE ITS EFFECT IS
TO ACCORD THE UNITED STATES A LARGER SUM IN DOLLARS AND CENTS ON ITS
SEC. 901 CLAIM THAN IT WOULD RECEIVE IF THE AVAILABLE ASSETS WERE
SUFFICIENT TO DISCHARGE IN FULL ALL OF THE PRIORITY CLAIMS.  THIS IS
TRUE BECAUSE, UNDER SEC. 902, THE UNITED STATES WOULD BE ENTITLED TO NO
MORE THAN 10% OF ITS SEC. 901 CLAIM IF THE UNEMPLOYMENT FUND CLAIM OF
THE STATE WAS PAID IN FULL.  WE AGREE THAT THIS RESULT IS SOMEWHAT
INCONGRUOUS.  HOWEVER, THE METHOD OF COMPUTATION URGED BY THE STATE
EMBODIES SO BASIC AN ERROR THAT WE CANNOT ACCEPT IT.  SECTION 902
PERMITS THE CREDIT "AGAINST THE TAX IMPOSED BY SEC. 901."  UNDER THE
STATE'S FORMULA THE CREDIT IS RECKONED IN TERMS OF A SUM DETERMINED BY
THAT FORMULA TO BE ACTUALLY AVAILABLE TO THE UNITED STATES ON ITS SEC.
901 CLAIM RATHER THAN IN TERMS OF THE WHOLE AMOUNT ACTUALLY DUE UNDER
THAT SECTION.  WE THINK THAT THE WORDS "THE TAX IMPOSED" MUST MEAN "THE
TAX DEMANDED" OR "ASSESSED" OR "DUE."  IT CAN HARDLY BE THOUGHT TO MEAN
"THE TAX PAID" OR "THE AMOUNT AVAILABLE FOR PAYMENT OF THE TAX."  THE
FORMULA ADOPTED BY THE DISTRICT COURT AVOIDS THIS ERROR BY CREDITING
THE UNDETERMINED SUM AVAILABLE TO THE STATE UNEMPLOYMENT FUND AGAINST
THE TOTAL TAX ASSESSED OR CLAIMED UNDER SEC. 901.  WE THEREFORE HOLD
THAT THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS DID NOT ERR IN
ADOPTING AND USING THAT FORMULA. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED WITH RESPECT
TO THE CLAIM UNDER TITLE VIII, BUT IS OTHERWISE AFFIRMED.  THE CASE IS
REMANDED TO PERMIT THE REINSTATEMENT OF THE JUDGMENT OF THE DISTRICT
COURT.  REVERSED. 

FN1  "SECTION 64.  DEBTS WHICH HAVE PRIORITY.  - A. THE DEBTS TO HAVE
PRIORITY, IN ADVANCE OF THE PAYMENT OF DIVIDENDS TO CREDITORS, AND TO
BE PAID IN FULL OUT OF BANKRUPT ESTATES, AND THE ORDER OF PAYMENT,
SHALL BE  ...  (4) TAXES LEGALLY DUE AND OWING BY THE BANKRUPT TO THE
UNITED STATES OR ANY STATE OR ANY SUBDIVISION THEREOF  ..."  U.S.C.,
TITLE 11, SEC. 104. 

FN2  C. 531, 49 STAT. 636, 639. 

"SECTION 801.  INCOME TAX ON EMPLOYEES.  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 (AS
DEFINED IN SEC. 811) RECEIVED BY HIM AFTER DECEMBER 31, 1936, WITH
RESPECT TO UNEMPLOYMENT (AS DEFINED IN SEC. 811) AFTER SUCH DATE:  (1)
WITH RESPECT TO EMPLOYMENT DURING THE CALENDAR YEARS 1937, 1938, AND
1939, THE RATE SHALL BE 1 PER CENTUM."  U.S.C., TITLE 42, SEC. 1001. 

"SECTION 802.  (A)  THE TAX IMPOSED BY SEC. 801 SHALL BE COLLECTED BY
THE EMPLOYER OF THE TAXPAYER, BY DEDUCTING THE AMOUNT OF THE TAX FROM
THE WAGES AS AND WHEN PAID.  EVERY EMPLOYER REQUIRED SO TO DEDUCT THE
TAX IS HEREBY MADE LIABLE FOR THE PAYMENT OF SUCH TAX, AND IS HEREBY
INDEMNIFIED AGAINST THE CLAIMS AND DEMANDS OF ANY PERSON FOR THE AMOUNT
OF ANY SUCH PAYMENT MADE BY SUCH EMPLOYER."  U.S.C., TITLE 42, SEC.
1002. 

"SEC. 901.  ON AND AFTER JANUARY 1, 1936, EVERY EMPLOYER (AS DEFINED
IN SEC. 907) SHALL PAY FOR EACH CALENDAR YEAR AN EXCISE TAX, WITH
RESPECT TO HAVING INDIVIDUALS IN HIS EMPLOY, EQUAL TO THE FOLLOWING
PERCENTAGES OF THE TOTAL WAGES (AS DEFINED IN SEC. 907) PAYABLE BY HIM
(REGARDLESS OF THE TIME OF PAYMENT) WITH RESPECT TO EMPLOYMENT (AS
DEFINED IN SEC. 907) DURING SUCH CALENDAR YEAR:  ...  (2) WITH RESPECT
TO EMPLOYMENT DURING THE CALENDAR YEAR 1937 THE RATE SHALL BE 2 PER
CENTUM.  ..."  U.S.C., TITLE 42, SEC. 1101. 

FN3  C. 666, 53 STAT. 1360, 1399.  SEE NOTES 9 AND 10, INFRA. 

FN4  "SECTION 57(J).  DEBTS OWING TO THE UNITED STATES OR ANY STATE
OR SUBDIVISION THEREOF AS A PENALTY OR FORFEITURE SHALL NOT BE ALLOWED,
EXCEPT FOR THE AMOUNT OF THE PECUNIARY LOSS SUSTAINED BY THE ACT,
TRANSACTION, OR PROCEEDING OUT OF WHICH THE PENALTY OR FORFEITURE
AROSE, WITH REASONABLE AND ACTUAL COSTS OCCASIONED THEREBY AND SUCH
INTEREST AS MAY HAVE ACCRUED THEREON ACCORDING TO LAW."  U.S.C., TITLE
11, SEC. 93(J). 

FN5  BOTH THE PERTINENT STATE AND FEDERAL CLAIMS ARE FOR THE YEAR
1937. 

FN6  TREASURY REGULATIONS 91, ARTICLE 505. 

FN7  "SECTION 804.  EXCISE TAX ON EMPLOYERS.  IN ADDITION TO OTHER
TAXES, EVERY EMPLOYER SHALL PAY AN EXCISE TAX, WITH RESPECT TO HAVING
INDIVIDUALS IN HIS EMPLOY, EQUAL TO THE FOLLOWING PERCENTAGES OF THE
WAGES (AS DEFINED IN SEC. 811) PAID BY HIM AFTER DECEMBER 31, 1936,
WITH RESPECT TO EMPLOYMENT (AS DEFINED IN SEC. 811) AFTER SUCH DATE:
(1)  WITH RESPECT TO EMPLOYMENT DURING THE CALENDAR YEARS 1937, 1938,
AND 1939, THE RATE SHALL BE 1 PER CENTUM."  U.S.C., TITLE 42, SEC.
1004. 

FN8  SEE NOTE 4, SUPRA. 

FN9  IN 1939 CONGRESS UNDERTOOK TO PUT AN END TO ANY DOUBTS ON THIS
QUESTION BY PROVIDING IN SEC. 902(I) OF THE AMENDMENTS TO THE SOCIAL
SECURITY ACT THAT NO PART OF THE TAX IMPOSED BY TITLE IX SHOULD BE
DEEMED A PENALTY OR FORFEITURE WITHIN THE MEANING OF SEC. 57(J) OF THE
BANKRUPTCY ACT.  C. 666, 53 STAT. 1360, 1400. 

FN10  THIS CONDITION HAD NOT BEEN COMPLIED WITH IN THE PRESENT CASE. 
HOWEVER, THE 1939 AMENDMENTS TO THE SOCIAL SECURITY ACT, WHICH RESULTED
IN THE DISMISSAL OF THE FIRST APPEAL BY STIPULATION, PROVIDED THAT THE
CREDIT SHOULD BE ALLOWED ON PAYMENTS TO THE STATE FUND "WITHOUT REGARD
TO THE DATE OF PAYMENT, IF THE ASSETS OF THE TAXPAYER ARE, AT ANY TIME
DURING THE FIFTY-NINE-DAY PERIOD FOLLOWING SUCH DATE OF ENACTMENT, IN
THE CUSTODY OR CONTROL OF A RECEIVER, TRUSTEE, OR OTHER FIDUCIARY
APPOINTED BY, OR UNDER THE CONTROL OF, A COURT OF COMPETENT
JURISDICTION."  SEC. 901(A)(3).  C. 666, 53 STAT. 1360, 1399.  THIS
BANKRUPT ESTATE QUALIFIED UNDER THIS PROVISION. 
..END :



UNITED STATES V. LOCAL 807, 315 U.S. 521 


NO. 131.  ARGUED JANUARY 7, 1942.  - DECIDED MARCH 2, 1942.  - 118 F.2D
684, REVERSED. 


THAT "ANY PERSON" WHO, IN CONNECTION WITH OR IN RELATION TO ANY ACT
AFFECTING INTERSTATE COMMERCE OR ANY ARTICLE OR COMMODITY MOVING IN
SUCH COMMERCE, OBTAINS OR ATTEMPTS TO OBTAIN BY USE OR THREAT OF FORCE,
VIOLENCE OR COERCION, THE PAYMENT OF MONEY, "NOT INCLUDING, HOWEVER,
THE PAYMENT OF WAGES BY A BONA FIDE EMPLOYER TO A BONA FIDE EMPLOYEE,"
SHALL BE GUILTY OF A FELONY.  HELD: 

1.  THAT THE LEGISLATIVE HISTORY OF THE ACT SHOWS THAT IT WAS
INTENDED TO SUPPRESS TERRORISTIC ACTIVITIES OF PROFESSIONAL GANGSTERS,
AND NOT TO INTERFERE WITH TRADITIONAL LABOR UNION ACTIVITIES.  P. 530. 

2.  THE EXCEPTION IS NOT LIMITED TO THOSE WHO HAD ACQUIRED THE STATUS
OF EMPLOYEES PRIOR TO THE TIME WHEN THEY OBTAINED, OR ATTEMPTED OR
CONSPIRED TO OBTAIN, THE PAYMENT.  P. 531. 

3.  THE EXCEPTION IS APPLICABLE TO AN AGREEMENT BY MEMBERS OF A CITY
UNION OF TRUCK DRIVERS, WHO, FOR THE PURPOSE OF OBTAINING EMPLOYMENT AT
UNION WAGES IN CONNECTION WITH "OVER-THE-ROAD" TRUCKS ENTERING THE
CITY, AGREE TO TENDER THEIR SERVICES IN GOOD FAITH TO EACH TRUCK OWNER
AND TO DO THE WORK IF HE ACCEPTS THEIR OFFER, BUT AGREE FURTHER THAT,
SHOULD HE REFUSE IT, THEY WILL NEVERTHELESS, FOR THE PROTECTION OF
THEIR UNION INTERESTS, REQUIRE HIM TO PAY THEM THE WAGES, EVEN BY
RESORT TO THREATS AND VIOLENCE.  P. 534. 

THE TEST OF THE APPLICABILITY OF THE EXCEPTION IN SUCH CASE IS
WHETHER THE OBJECTIVE OF THE CONSPIRATORS WAS TO OBTAIN "THE PAYMENT OF
WAGES BY A BONA FIDE EMPLOYER TO A BONA FIDE EMPLOYE," AND NOT WHETHER
THE INTENT OF THE TRUCK OWNER IN MAKING PAYMENT WAS TO PAY FOR SERVICES
RATHER THAN FOR PROTECTION.  P. 532. 

4. LABOR UNION ACTIVITIES SUCH AS THOSE DISCLOSED BY THE RECORD IN
THIS CASE ARE NOT BEYOND THE REACH OF FEDERAL LEGISLATIVE CONTROL; AND
THE USE OF VIOLENCE SUCH AS THAT HERE DISCLOSED IS SUBJECT TO THE
ORDINARY CRIMINAL LAW.  P. 536. 

UNITED STATES V. LOCAL 807 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, STABLEMEN & HELPERS OF AMERICA ET AL.* 

*TOGETHER WITH NO. 132, LOCAL 807 OF INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, STABLEMEN & HELPERS OF AMERICA ET AL. V. UNITED
STATES, ALSO ON WRIT OF CERTIORARI, 314 U.S. 596, TO THE CIRCUIT COURT
OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CROSS-PETITIONS FOR CERTIORARI, 314 U.S. 592, TO REVIEW A JUDGMENT
REVERSING CONVICTIONS OF A LABOR UNION, AND INDIVIDUAL MEMBERS OF IT,
ON CHARGES OF CONSPIRACY TO VIOLATE SEC. 2(A) AND OTHER SECTIONS OF THE
FEDERAL ANTI-RACKETEERING ACT OF JUNE 8, 1934. 

THE PROVISION OF THE STATUTE EXEMPTING "WAGES PAID BY A BONA-FIDE
EMPLOYEE" CONFERS IMMUNITY WHERE COMPENSATION IS PAID FOR SERVICES
RENDERED PURSUANT TO A GENUINE EMPLOYER-EMPLOYEE RELATIONSHIP, BUT NOT
WHERE PAYMENTS ARE MADE TO SECURE PROTECTION AGAINST UNLAWFUL
INTERFERENCE WITH BUSINESS OPERATIONS, WHATEVER THE GUISE IN WHICH SUCH
PAYMENTS ARE MADE.  IN DETERMINING WHICH OF THESE SITUATIONS EXISTS,
THE TEST IS NOT WHETHER SOME SERVICE HAS BEEN RENDERED BUT WHETHER,
UNDER ALL THE CIRCUMSTANCES, THE PAYMENTS HAVE BEEN MADE FOR LABOR OR
FOR PROTECTION. 

A MERE APPLICANT FOR EMPLOYMENT IS NOT AN "EMPLOYEE"; NOR IS MONEY
WHICH IS PAID TO HIM "WAGES."  THE REASON WHICH THE COURT GAVE FOR
ADOPTING THIS CONSTRUCTION WAS THAT IT WOULD BE AN ABSURD RESULT IF THE
STATUTE GAVE IMMUNITY TO WAGE PAYMENTS WHERE THE EMPLOYMENT HAD
ORIGINALLY BEEN PROCURED BY COERCION BUT FAILED TO GIVE IMMUNITY TO
PAYMENTS WHERE COERCION HAD BEEN USED BY PERSONS UNSUCCESSFULLY SEEKING
EMPLOYMENT.  THOSE WHO USE COERCION TO SECURE GENUINE EMPLOYMENT ARE
ENGAGED IN A LEGITIMATE LABOR OBJECTIVE; THEIR ACTIVITIES, ALTHOUGH
PERHAPS CONSTITUTING BREACHES OF THE PEACE, DO NOT PARTAKE OF THE
NATURE OF EXTORTION.  BUT IT IS DIFFICULT, IF NOT IMPOSSIBLE, TO
CONCEIVE OF A SITUATION IN WHICH A PERSON CAN SUCCEED IN OBTAINING
MONEY FROM A PROSPECTIVE EMPLOYER BY A MERE PROFFER OF SERVICES AND
WITHOUT ENTERING UPON A GENUINE EMPLOYMENT RELATIONSHIP UNLESS HIS
ACTIVITIES DO PARTAKE OF THE NATURE OF EXTORTION.  FOR AN EMPLOYER WHO,
UNDER THREAT OF VIOLENCE, PAYS A PERSON WHOSE PROFFERED SERVICES HE
REJECTS MUST BE PAYING ONLY FOR PROTECTION AGAINST VIOLENCE. 

THE PROVISO IN SEC. 6 DOES NOT, LIKE THE WAGE EXEMPTION, DIRECTLY
GRANT ANY IMMUNITY.  IT APPLIES ONLY IF "RIGHTS" EXPRESSED IN "EXISTING
STATUTES OF THE UNITED STATES" ARE IN SOME MANNER IMPAIRED.  SECTION 6
OF THE CLAYTON ACT IS INAPPLICABLE BECAUSE THE RIGHTS IT CONFERS ARE
LIMITED TO CERTAIN RELIEF AGAINST PROHIBITIONS OF THE "ANTITRUST
LAWS."  LIKEWISE, THERE WAS NO INFRINGEMENT IN THIS CASE OF THE RIGHT
TO STRIKE, PICKET, BOYCOTT, OR TO ASSEMBLE PEACEABLY, GIVEN PROTECTION
BY SEC. 20 OF THE CLAYTON ACT.  FOR THE SAME REASON, THE PROVISIONS OF
THE NORRIS-LAGUARDIA ACT LIMITING THE JURISDICTION OF FEDERAL COURTS
WITH RESPECT TO SUCH ACTIVITIES ARE INAPPOSITE.  THERE WAS ALSO NO
IMPAIRMENT OF THE PUBLIC POLICY DECLARED IN THE NORRIS-LAGUARDIA ACT,
SINCE THERE WAS NO INTERFERENCE OR COERCION BY EMPLOYERS WITH
DEFENDANTS' RIGHT TO ORGANIZE OR TO SELECT COLLECTIVEBARGAINING
REPRESENTATIVES. 

FURTHERMORE, THE PROVISO IN SEC. 6 IS INAPPLICABLE BECAUSE THE
DEFENDANTS' ACTIVITIES WERE NOT DIRECTED TOWARD A LEGITIMATE
OBJECTIVE. 

THE LEGISLATIVE HISTORY OF THE STATUTE IS NOT OPPOSED TO OUR
CONTENTIONS. 

THE ANTI-RACKETEERING ACT IS PATENTLY CONSTITUTIONAL.  THE ACT DOES
NOT DEPRIVE THE STATES OF POWER TO PUNISH ACTS OF VIOLENCE WHICH MAY
LIKEWISE CONSTITUTE OFFENSES UNDER THE ACT.  FEDERAL LEGISLATION
ENACTED PURSUANT TO THE COMMERCE POWER OF CONGRESS DOES NOT BAR
COMPLEMENTARY STATE LEGISLATION UNLESS CONGRESS HAS MANIFESTED A
PURPOSE TO PREEMPT THE ENTIRE FIELD; AND THE ANTI-RACKETEERING ACT IS
OBVIOUSLY NOT A PREEMPTION OF THE ENTIRE FIELD OF REGULATION. 

THE ACT APPLIES TO LOCAL 807.  THE WORD "PERSON" WHEN USED IN FEDERAL
LEGISLATION MAY INCLUDE JURISTIC AS WELL AS NATURAL PERSONS. 

THIS IS NOT A CASE WHERE THE LANGUAGE OF THE STATUTE IS AMBIGUOUS. 
INDEED, IT WOULD BE DIFFICULT TO FRAME LANGUAGE MORE CLEARLY CONFINED
TO PAYMENTS MADE AS COMPENSATION FOR LABOR ACTUALLY PERFORMED THAN THE
WORDS "WAGES PAID BY A BONA-FIDE EMPLOYER TO A BONA-FIDE EMPLOYEE." 
THE MENTION OF "WAGES" ALONE WOULD HAVE CONVEYED THE THOUGHT, SINCE THE
WORD "WAGES" IS UNIVERSALLY DEFINED AS THE PAYMENT OF COMPENSATION FOR
SERVICES. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

THIS CASE COMES HERE ON CROSS-PETITIONS FOR CERTIORARI TO REVIEW A
JUDGMENT OF THE CIRCUIT COURT OF APPEALS REVERSING THE CONVICTION OF
LOCAL 807 AND 26 INDIVIDUALS ON CHARGES OF CONSPIRACY TO VIOLATE SECS.
2(A), 2(B) AND 2(C) OF THE ANTI-RACKETEERING ACT OF JUNE 18, 1934.  FN1
THE GOVERNMENT ASKS THAT THE JUDGMENTS OF CONVICTION BE REINSTATED. 
IN THEIR CROSS-PETITION THE DEFENDANTS SEEK DISMISSAL OF THE
INDICTMENT.  WE DO NOT REGARD THIS AS A CORRECT DISPOSITION OF THE
CASE.  SINCE THE CORRECTNESS OF THE VIEWS CONCERNING THE MEANING OF THE
STATUTE ON WHICH THE TRIAL COURT SUBMITTED THE CASE TO THE JURY GOES TO
THE ROOT OF THE CONVICTIONS AND THEIR REVERSAL BY THE CIRCUIT COURT OF
APPEALS, WE SHALL CONFINE OUR CONSIDERATION OF THESE CASES TO THAT
ISSUE.  CONSEQUENTLY, WE ARE CONCERNED ONLY WITH WHETHER THE DEFENDANTS
WERE TRIED IN A MANNER CONSISTENT WITH THE PROPER MEANING AND SCOPE OF
THE PERTINENT PROVISIONS OF SEC. 2 OF THE ACT, WHICH PROVIDE: 

"ANY PERSON WHO, IN CONNECTION WITH OR IN RELATION TO ANY ACT IN ANY
WAY OR IN ANY DEGREE AFFECTING TRADE OR COMMERCE OR ANY ARTICLE OR
COMMODITY MOVING OR ABOUT TO MOVE IN TRADE OR COMMERCE - 

"(A)  OBTAINS OR ATTEMPTS TO OBTAIN, BY THE USE OF OR ATTEMPT TO USE
OR THREAT TO USE FORCE, VIOLENCE, OR COERCION, THE PAYMENT OF MONEY OR
OTHER VALUABLE CONSIDERATIONS, OR THE PURCHASE OR RENTAL OF PROPERTY OR
PROTECTIVE SERVICES, NOT INCLUDING, HOWEVER, THE PAYMENT OF WAGES BY A
BONAFIDE EMPLOYER TO A BONA-FIDE EMPLOYEE; OR 

"(B)  OBTAINS THE PROPERTY OF ANOTHER, WITH HIS CONSENT, INDUCED BY
WRONGFUL USE OF FORCE OR FEAR, OR UNDER COLOR OF OFFICIAL RIGHT; OR 

"(C)  COMMITS OR THREATENS TO COMMIT AN ACT OF PHYSICAL VIOLENCE OR
PHYSICAL INJURY TO A PERSON OR PROPERTY IN FURTHERANCE OF A PLAN OR
PURPOSE TO VIOLATE SECTIONS (A) OR (B); ...  " 

THE PROOF AT THE TRIAL SHOWED THAT THE DEFENDANT LOCAL 807 INCLUDES
IN ITS MEMBERSHIP NEARLY ALL THE MOTOR TRUCK DRIVERS AND HELPERS IN THE
CITY OF NEW YORK, AND THAT DURING THE PERIOD COVERED BY THE INDICTMENT
DEFENDANTS CAMPBELL AND FUREY HELD OFFICE IN THE LOCAL AS DELEGATES IN
CHARGE OF THE WEST SIDE OF MANHATTAN AND THE OTHER DEFENDANTS WERE
MEMBERS.  LARGE QUANTITIES OF THE MERCHANDISE WHICH GOES INTO THE CITY
FROM NEIGHBORING STATES ARE TRANSPORTED IN "OVER-THE-ROAD" TRUCKS,
WHICH ARE USUALLY MANNED BY DRIVERS AND HELPERS WHO RESIDE IN THE
LOCALITIES FROM WHICH THE SHIPMENTS ARE MADE AND WHO ARE CONSEQUENTLY
NOT MEMBERS OF LOCAL 807.  PRIOR TO THE EVENTS COVERED BY THIS
INDICTMENT, IT APPEARS TO HAVE BEEN CUSTOMARY FOR THESE OUT-OF-STATE
DRIVERS TO MAKE DELIVERIES TO THE WAREHOUSES OF CONSIGNEES IN NEW YORK
AND THEN TO PICK UP OTHER MERCHANDISE FROM NEW YORK SHIPPERS FOR
DELIVERY ON THE RETURN TRIP TO CONSIGNEES IN THE SURROUNDING STATES. 

THERE WAS SUFFICIENT EVIDENCE TO WARRANT A FINDING THAT THE
DEFENDANTS CONSPIRED TO USE AND DID USE VIOLENCE AND THREATS TO OBTAIN
FROM THE OWNERS OF THESE "OVER-THE-ROAD" TRUCKS $9.42 FOR EACH LARGE
TRUCK AND $8.41 FOR EACH SMALL TRUCK ENTERING THE CITY.  THESE AMOUNTS
WERE THE REGULAR UNION RATES FOR A DAY'S WORK OF DRIVING AND
UNLOADING.  THERE WAS PROOF THAT IN SOME CASES THE OUT-OF-STATE DRIVER
WAS COMPELLED TO DRIVE THE TRUCK TO A POINT CLOSE TO THE CITY LIMITS
AND THERE TO TURN IT OVER TO ONE OR MORE OF THE DEFENDANTS.  THESE
DEFENDANTS WOULD THEN DRIVE THE TRUCK TO ITS DESTINATION, DO THE
UNLOADING, PICK UP THE MERCHANDISE FOR THE RETURN TRIP AND SURRENDER
THE TRUCK TO THE OUT-OF-STATE DRIVER AT THE POINT WHERE THEY HAD TAKEN
IT OVER.  IN OTHER CASES, ACCORDING TO THE TESTIMONY, THE MONEY WAS
DEMANDED AND OBTAINED, BUT THE OWNERS OR DRIVERS REJECTED THE OFFERS OF
THE DEFENDANTS TO DO OR HELP WITH THE DRIVING OR UNLOADING.  AND IN
SEVERAL CASES THE JURY COULD HAVE FOUND THAT THE DEFENDANTS EITHER
FAILED TO OFFER TO WORK, OR REFUSED TO WORK FOR THE MONEY WHEN ASKED TO
DO SO.  EVENTUALLY MANY OF THE OWNERS SIGNED CONTRACTS WITH LOCAL 807
UNDER WHOSE TERMS THE DEFENDANTS WERE TO DO THE DRIVING AND UNLOADING
WITHIN THE CITY AND TO RECEIVE REGULAR UNION RATES FOR THE WORK.  NO
SERIOUS QUESTION IS RAISED BY THE EVIDENCE AS TO THE ABILITY OF THE
DEFENDANTS TO PERFORM THE LABOR INVOLVED IN THESE OPERATIONS. 

THE FIRST COUNT OF THE INDICTMENT WAS BASED UPON SEC. 2(A) OF THE ACT
AND CHARGED A CONSPIRACY "TO OBTAIN THE PAYMENT OF MONEY  ...  (FROM
THE OWNERS) BY THE USE OF, ATTEMPT TO USE AND THREAT TO USE, FORCE,
VIOLENCE AND COERCION."  THE SECOND COUNT ACCUSED THE DEFENDANTS OF
CONSPIRING TO OBTAIN THE PROPERTY OF THE OWNERS "WITH THEIR CONSENT
INDUCED BY WRONGFUL USE OF FORCE AND OF FEAR," IN VIOLATION OF SEC.
2(B).  THE THIRD AND FOURTH COUNTS ALLEGED A CONSPIRACY TO VIOLATE SEC.
2(C), IN THAT THE DEFENDANTS AGREED "TO COMMIT AND THREATENED TO COMMIT
ACTS OF PHYSICAL VIOLENCE AND OF PHYSICAL INJURY TO THE PERSONS AND
PROPERTY" OF THEIR VICTIMS, IN FURTHERANCE OF THE GENERAL SCHEME TO
VIOLATE SECS. 2(A) AND 2(B).  LOCAL 807 AND ALL OF THE INDIVIDUAL
DEFENDANTS WERE CONVICTED ON THE FIRST COUNT; THE LOCAL AND 17
INDIVIDUALS ON THE SECOND; AND THE LOCAL AND 11 INDIVIDUALS ON THE
THIRD AND FOURTH. 

THE QUESTION IN THE CASE CONCERNS THAT PORTION OF SEC. 2(A) WHICH
EXCEPTS FROM PUNISHMENT ANY PERSON WHO "OBTAINS OR ATTEMPTS TO OBTAIN,
BY THE USE OF OR ATTEMPT TO USE OR THREAT TO USE FORCE, VIOLENCE, OR
COERCION,  ...  THE PAYMENT OF WAGES BY A BONA-FIDE EMPLOYER TO A BONA
FIDE EMPLOYEE."  FN2  THE CIRCUIT COURT OF APPEALS REVERSED BECAUSE IT
BELIEVED THAT THE TRIAL COURT HAD FAILED TO INSTRUCT THE JURY PROPERLY
WITH RESPECT TO THIS EXCEPTION. 

TO ASCERTAIN THE LIMITS OF THE EXCEPTION IS A DIFFICULT UNDERTAKING. 
ALWAYS ASSUMING THE PRESENCE OF VIOLENCE AND THREATS, AS WE MUST IN THE
FACE OF THIS RECORD, THREE INTERPRETATIONS OF VARYING RESTRICTIVE FORCE
REQUIRE CONSIDERATION:  (1) THE EXCEPTION APPLIES ONLY TO A DEFENDANT
WHO HAS ENJOYED THE STATUS OF A BONA FIDE EMPLOYEE PRIOR TO THE TIME AT
WHICH HE OBTAINS OR ATTEMPTS TO OBTAIN THE PAYMENT OF MONEY BY THE
OWNER.  (2) ASSUMING THAT THIS IS INCORRECT AND THAT THE EXCEPTION MAY
AFFECT A DEFENDANT WHO HAS NOT BEEN A BONA FIDE EMPLOYEE PRIOR TO THE
TIME IN QUESTION, IT DOES NOT APPLY IF THE OWNER'S INTENTION IN MAKING
THE PAYMENT IS TO BUY "PROTECTION" AND NOT TO BUY SERVICE, EVEN THOUGH
THE DEFENDANT MAY INTEND TO PERFORM THE SERVICE OR MAY ACTUALLY PERFORM
IT.  WE UNDERSTAND THIS TO BE THE POSITION ADOPTED BY THE GOVERNMENT IN
ITS BRIEF AND ARGUMENT IN THIS COURT.  (3) ASSUMING THAT BOTH (1) AND
(2) ARE INCORRECT, THE EXCEPTION IS NOT APPLICABLE TO A DEFENDANT WHO
OBTAINS THE PAYMENT OF MONEY IF THE OWNER REJECTS HIS GENUINE OFFER OF
SERVICE.  WE UNDERSTAND THIS TO BE THE THEORY OF THE DISSENTING JUDGE
BELOW. 

CONFRONTED WITH THESE VARIOUS INTERPRETATIONS, WE TURN FOR GUIDANCE
TO THE LEGISLATIVE HISTORY OF THE STATUTE.  PURSUANT TO A SENATE
RESOLUTION OF MAY 8, 1933, FN3  A SUB-COMMITTEE OF THE SENATE COMMITTEE
ON INTERSTATE COMMERCE WHICH BECAME KNOWN AS THE COPELAND COMMITTEE,
UNDERTOOK AN INVESTIGATION OF "RACKETS" AND "RACKETEERING" IN THE
UNITED STATES.  AFTER CONDUCTING HEARINGS IN SEVERAL LARGE CITIES, THE
COMMITTEE INTRODUCED 13 BILLS, OF WHICH S. 2248 WAS ONE.  FN4  AS
INTRODUCED, AS REPORTED BY THE SENATE JUDICIARY COMMITTEE,  FN5  AND AS
PASSED WITHOUT DEBATE BY THE SENATE,  FN6  S. 2248 EMBODIED VERY
GENERAL PROHIBITIONS AGAINST VIOLENCE OR COERCION IN CONNECTION WITH
INTERSTATE COMMERCE AND CONTAINED NO SPECIFIC MENTION OF WAGES OR
LABOR.  AFTER THE BILL HAD PASSED THE SENATE, HOWEVER, REPRESENTATIVES
OF THE AMERICAN FEDERATION OF LABOR EXPRESSED FEAR THAT THE BILL IN ITS
THEN FORM MIGHT RESULT IN SERIOUS INJURY TO LABOR,  FN7  AND THE
MEASURE WAS REDRAFTED BY OFFICIALS OF THE DEPARTMENT OF JUSTICE AFTER
CONFERENCES WITH THE PRESIDENT OF THE FEDERATION.  IN THE COURSE OF
THIS REVISION, THE BILL ASSUMED SUBSTANTIALLY THE FORM IN WHICH IT WAS
EVENTUALLY ENACTED.  IN PARTICULAR, THE EXCEPTION CONCERNING "THE
PAYMENT OF WAGES BY A BONA-FIDE EMPLOYER TO A BONA-FIDE EMPLOYEE" WAS
ADDED, AND A PROVISO PRESERVING "THE RIGHTS OF BONA-FIDE LABOR
ORGANIZATIONS" WAS INCORPORATED IN WHAT BECAME SEC. 6 OF THE ACT AS
FINALLY PASSED.  FN8  IN ITS FAVORABLE REPORTS ON THIS REVISED BILL,
FN9  THE HOUSE COMMITTEE ON THE JUDICIARY SET FORTH WITHOUT COMMENT A
LETTER FROM THE ATTORNEY GENERAL TO THE COMMITTEE, DATED MAY 18, 1934. 
IN THIS LETTER THE ATTORNEY GENERAL INFORMED THE COMMITTEE THAT THE
DRAFT OF THE SUBSTITUTE BILL HAD BEEN "DEFINITELY APPROVED" BY THE
PRESIDENT OF THE AMERICAN FEDERATION OF LABOR AND HIS COUNSEL.  THE
LETTER CONTINUED:    "WE BELIEVE THAT THE BILL IN THIS FORM WILL
ACCOMPLISH THE PURPOSES OF SUCH LEGISLATION AND AT THE SAME TIME MEET
THE OBJECTIONS MADE TO THE ORIGINAL BILL. 

"THE ORIGINAL BILL WAS SUSCEPTIBLE TO THE OBJECTION THAT IT MIGHT
INCLUDE WITHIN THE PROHIBITION THE LEGITIMATE AND BONA FIDE ACTIVITIES
OF EMPLOYERS AND EMPLOYEES.  AS THE PURPOSE OF THE LEGISLATION IS NOT
TO INTERFERE WITH SUCH LEGITIMATE ACTIVITIES BUT RATHER TO SET UP
SEVERE PENALTIES FOR RACKETEERING BY VIOLENCE, EXTORTION, OR COERCION,
WHICH AFFECTS INTERSTATE COMMERCE, IT SEEMS ADVISABLE TO DEFINITELY
EXCLUDE SUCH LEGITIMATE ACTIVITIES.    "AS THE TYPICAL RACKETEERING
ACTIVITIES AFFECTING INTERSTATE COMMERCE ARE THOSE IN CONNECTION WITH
PRICE FIXING AND ECONOMIC EXTORTION DIRECTED BY PROFESSIONAL GANGSTERS,
WE HAVE INSERTED SUBPARAGRAPHS (A) AND (B), MAKING SUCH ACTIVITIES
UNLAWFUL WHEN ACCOMPANIED BY VIOLENCE AND AFFECTING INTERSTATE
COMMERCE." 

THE SUBSTITUTE WAS AGREED TO BY BOTH THE HOUSE AND SENATE WITHOUT
DEBATE, WHEN ASSURANCES WERE GIVEN THAT THE APPROVAL OF ORGANIZED LABOR
HAD BEEN OBTAINED.  FN10  THEREAFTER, WHILE THE BILL AWAITED THE
SIGNATURE OF THE PRESIDENT, SENATOR COPELAND SUBMITTED A REPORT FN11
IN WHICH HE REFERRED TO S. 2248 AS ONE OF ELEVEN BILLS WHICH HAD BEEN
ENACTED "TO CLOSE GAPS IN EXISTING FEDERAL LAWS AND TO RENDER MORE
DIFFICULT THE ACTIVITIES OF PREDATORY CRIMINAL GANGS OF THE KELLY AND
DILLINGER TYPES." 

THIS ACCOUNT OF THE LEGISLATIVE PROCEEDINGS OBVIOUSLY DOES NOT
PROVIDE SPECIFIC DEFINITION OF "WAGES," "BONA-FIDE EMPLOYER," OR "BONA
FIDE EMPLOYEE," AS THOSE TERMS ARE USED IN SEC. 2(A).  BUT IT DOES
CONTAIN CLEAR DECLARATIONS BY THE HEAD OF THE DEPARTMENT WHICH DRAFTED
THE SECTION AND BY THE SPONSOR OF THE BILL IN CONGRESS, FIRST, THAT THE
ELIMINATION OF TERRORISTIC ACTIVITIES BY PROFESSIONAL GANGSTERS WAS THE
AIM OF THE STATUTE, AND SECOND, THAT NO INTERFERENCE WITH TRADITIONAL
LABOR UNION ACTIVITIES WAS INTENDED. 

IT MAY BE TRUE THAT PROFESSIONAL RACKETS HAVE SOMETIMES ASSUMED THE
GUISE OF LABOR UNIONS, AND, AS THE CIRCUIT COURT OF APPEALS OBSERVED,
THAT THEY MAY HAVE "COVERED THEIR PRACTICES BY THE PRETENCE THAT THE
TRIBUTE COLLECTED WAS PAY FOR SERVICES RENDERED."  AND IT MAY ALSO BE
TRUE THAT LABOR ORGANIZATIONS OF GOOD REPUTE AND HONEST PURPOSE CAN BE
MISDIRECTED AND BECOME AGENCIES OF BLACKMAIL.  NEVERTHELESS, CONGRESS
PLAINLY ATTEMPTED TO DISTINGUISH MILITANT LABOR ACTIVITY FROM THE OTHER
AND TO AFFORD IT AMPLE PROTECTION.  WITH THIS LEGISLATIVE PURPOSE
UPPERMOST IN MIND, WE RETURN TO TEST THE THREE THEORIES OF
INTERPRETATION OF SEC. 2(A) TO WHICH WE HAVE REFERRED. 

(1)  WE HOLD THAT THE EXEMPTION IS NOT RESTRICTED TO A DEFENDANT WHO
HAS ATTAINED THE STATUS OF AN EMPLOYEE PRIOR TO THE TIME AT WHICH HE
OBTAINS OR ATTEMPTS OR CONSPIRES TO OBTAIN THE MONEY.  IN THE FIRST
PLACE, WE AGREE WITH THE OBSERVATION OF THE COURT BELOW THAT
"PRACTICALLY ALWAYS THE CRUX OF A LABOR DISPUTE IS WHO SHALL GET THE
JOB, AND WHAT THE TERMS SHALL BE  ...  "  TO EXCLUDE THIS ENTIRE CLASS
OF DISPUTES FROM THE PROTECTION OF THE EXCEPTION WOULD BE UNJUSTIFIABLY
TO THWART THE PURPOSE OF CONGRESS AS WE UNDERSTAND IT.  IN THE SECOND
PLACE, THE STRUCTURE AND LANGUAGE OF SEC. 2(A) ITSELF IS PERSUASIVE
AGAINST SO NARROW AN INTERPRETATION.  IT DOES NOT EXCEPT "A BONA FIDE
EMPLOYEE WHO OBTAINS OR ATTEMPTS TO OBTAIN THE PAYMENT OF WAGES FROM A
BONA-FIDE EMPLOYER."  RATHER, IT EXCEPTS "ANY PERSON WHO  ...  OBTAINS
OR ATTEMPTS TO OBTAIN  ... THE PAYMENT OF WAGES FROM A BONA-FIDE
EMPLOYER TO A BONA FIDE EMPLOYEE."  CERTAINLY, AN OUTSIDER WHO
"ATTEMPTS" UNSUCCESSFULLY BY VIOLENT MEANS TO ACHIEVE THE STATUS OF AN
EMPLOYEE AND TO SECURE WAGES FOR SERVICES FALLS WITHIN THE EXCEPTION. 
AND WHERE, AS HERE, THE OFFENSE CHARGED IS CONSPIRACY TO VIOLATE THE
TO BECOME BONA FIDE EMPLOYEES AND TO OBTAIN WAGES IN THAT CAPACITY,
EVEN THOUGH THEY MAY FAIL OF THEIR PURPOSE. 

(2)  THE GOVERNMENT CONTENDS, AS WE HAVE SAID, THAT THE TEST IS
"WHETHER, UNDER ALL THE CIRCUMSTANCES, IT APPEARS THAT THE MONEY HAS
BEEN PAID FOR LABOR OR FOR PROTECTION."  IF THE DEFENDANTS DO NOT OFFER
TO WORK, OR IF THEY REFUSE TO WORK, OR IF THEIR OFFER TO WORK IS
REJECTED BY THE OWNERS, THE GOVERNMENT ARGUES THAT ANY PAYMENT MADE TO
THEM MUST BE FOR PROTECTION RATHER THAN FOR SERVICES.  AND EVEN IF THE
DEFENDANTS ACTUALLY PERFORM SOME WORK, IT IS SAID, THIS CIRCUMSTANCE
SHOULD BE REGARDED AS RELEVANT BUT NOT CONTROLLING IN DETERMINING "THE
ONE CRUCIAL ISSUE IN EVERY CASE SUCH AS THIS - NAMELY, WHETHER THE
MONEY WAS PAID FOR LABOR OR FOR PROTECTION." 

WE TAKE THIS TO MEAN THAT THE INTENT OF THE OWNERS IN MAKING THE
PAYMENT IS TO BE REGARDED AS CONTROLLING.  WE CANNOT AGREE.  THE STATE
OF MIND OF THE TRUCK OWNERS CANNOT BE DECISIVE OF THE GUILT OF THESE
DEFENDANTS.  ON THE CONTRARY, THEIR GUILT IS DETERMINED BY WHETHER OR
NOT THEIR PURPOSE AND OBJECTIVE WAS TO OBTAIN "THE PAYMENT OF WAGES BY
A BONA-FIDE EMPLOYER TO A BONA-FIDE EMPLOYEE."  AND, OF COURSE, WHERE
THE DEFENDANTS ARE CHARGED WITH CONSPIRACY AS THEY WERE HERE, IT IS
PARTICULARLY OBVIOUS THAT THE NATURE OF THEIR PLAN AND AGREEMENT IS THE
CRUX OF THE CASE.  THE MISCHIEF OF A CONTRARY THEORY IS NOWHERE BETTER
ILLUSTRATED THAN IN INDUSTRIAL CONTROVERSIES.  FOR EXAMPLE, THE MEMBERS
OF A LABOR UNION MAY DECIDE THAT THEY ARE ENTITLED TO THE JOBS IN THEIR
TRADE IN A PARTICULAR AREA.  THEY MAY AGREE TO ATTEMPT TO OBTAIN
CONTRACTS TO DO THE WORK AT THE UNION WAGE SCALE.  THEY MAY OBTAIN THE
CONTRACTS, DO THE WORK, AND RECEIVE THE MONEY.  CERTAINLY CONGRESS
INTENDED THAT THESE ACTIVITIES SHOULD BE EXCEPTED FROM THE PROHIBITIONS
OF THIS PARTICULAR ACT, EVEN THOUGH THE AGREEMENT MAY HAVE CONTEMPLATED
THE USE OF VIOLENCE.  BUT IT IS ALWAYS AN OPEN QUESTION WHETHER THE
EMPLOYERS' CAPITULATION TO THE DEMANDS OF THE UNION IS PROMPTED BY A
DESIRE TO OBTAIN SERVICES OR TO AVOID FURTHER INJURY OR BOTH.  TO MAKE
A FINE OR PRISON SENTENCE FOR THE UNION AND ITS MEMBERS CONTINGENT UPON
A FINDING BY THE JURY THAT ONE MOTIVE OR THE OTHER DOMINATED THE
EMPLOYERS' DECISION WOULD BE A DISTORTION OF THE LEGISLATIVE PURPOSE. 

WE ARE TOLD, HOWEVER, THAT UNDER THIS VIEW SUCH A COMMON LAW OFFENSE
AS ROBBERY WOULD BECOME AN INNOCENT PASTIME, INASMUCH AS IT IS AN
ESSENTIAL ELEMENT OF THAT CRIME THAT THE VICTIM BE MOVED BY FEAR OF
VIOLENCE WHEN HE PARTS WITH HIS MONEY OR PROPERTY.  THIS OBJECTION
MISTAKES THE SIGNIFICANCE OF THIS REQUIREMENT OF PROOF IN THE CASE OF
ROBBERY.  ITS TRUE SIGNIFICANCE IS THAT IT PLACES AN ADDED BURDEN UPON
THE PROSECUTOR RATHER THAN UPON THE ACCUSED.  THAT IS, THE PROSECUTOR
MUST FIRST ESTABLISH A CRIMINAL INTENT UPON THE PART OF THE DEFENDANT
AND HE MUST THEN MAKE A FURTHER SHOWING WITH RESPECT TO THE VICTIM'S
STATE OF MIND.  THE EFFECT OF THIS RULE IS TO RENDER CONVICTION OF
ROBBERY MORE, RATHER THAN LESS, DIFFICULT.  THERE IS NO SUCH
RESTRICTIVE EVIDENTIARY REQUIREMENT IN PROSECUTIONS UNDER THIS ACT.  IF
THE OBJECTIVE THAT THESE DEFENDANTS SOUGHT TO ATTAIN BY THE USE OF
FORCE AND THREATS IS NOT THE OBJECTIVE TO WHICH THE EXCEPTION IN SEC.
2(A) AFFORDS IMMUNITY, THEY ARE GUILTY AND NOTHING FURTHER NEED BE
SHOWN CONCERNING THE ACTUAL MOTIVE OF THE OWNERS IN HANDING OVER THE
MONEY.  ON THE OTHER HAND, IF THEIR OBJECTIVE DID ENJOY THE PROTECTION
OF THAT EXCEPTION, THEY ARE INNOCENT AND THEIR INNOCENCE IS NOT
AFFECTED BY THE STATE OF MIND OF THE OWNERS.  WE SHALL CONSIDER IN A
MOMENT, IN POINT (3) BELOW, THE LEGAL CONSEQUENCES WHICH FLOW FROM THE
OWNERS' ACTUAL REJECTION OF PROFFERED SERVICES.  BUT IT NEEDS TO BE
EMPHASIZED HERE THAT FOR THE OWNERS TO REJECT AN OFFER OF SERVICES
AMOUNTS TO AN OVERT ACT ON THEIR PART.  IT IS CONDUCT OR BEHAVIOR AS
DISTINCT FROM INTENTION OR STATE OF MIND.  IT IS AN EVENT WHICH ALTERS
THE EXTERNAL SITUATION IN WHICH THE DEFENDANTS FIND THEMSELVES.  THE
LATTER MUST THEN DECIDE WHETHER THEY WILL CONTINUE TO PUSH THEIR
DEMANDS FOR THE MONEY.  WHETHER OR NOT THEY ARE GUILTY OF AN OFFENSE
UNDER THIS ACT IF THEY CHOOSE TO DO SO WE SHALL PRESENTLY DISCUSS.  BUT
THAT DECISION MUST BE MADE IN TERMS OF THEIR MOTIVES AND PURPOSES AND
OBJECTIVES RATHER THAN THOSE OF THE OWNERS. 

WE DO NOT MEAN THAT AN OFFER TO WORK OR EVEN THE ACTUAL PERFORMANCE
OF SOME SERVICES NECESSARILY ENTITLES ONE TO IMMUNITY UNDER THE
EXCEPTION.  A JURY MIGHT OF COURSE FIND THAT SUCH AN OFFER OR
PERFORMANCE WAS NO MORE THAN A SHAM TO DISGUISE AN ACTUAL INTENTION TO
EXTORT AND TO BLACKMAIL.  BUT THE INQUIRY MUST NEVERTHELESS BE DIRECTED
TO WHETHER THIS WAS THE PURPOSE OF THE ACCUSED OR WHETHER THEY HONESTLY
INTENDED TO OBTAIN A CHANCE TO WORK FOR A WAGE. 

(3)  THERE REMAINS TO BE CONSIDERED THE DIFFICULT ISSUE WHICH DIVIDED
THE COURT BELOW.  THE WHOLE COURT AGREED THAT THE PAYMENT OF MONEY TO
ONE WHO REFUSES TO PERFORM THE SERVICES IS NOT "THE PAYMENT OF WAGES BY
A BONA-FIDE EMPLOYER TO A BONA-FIDE EMPLOYEE," WITHIN THE MEANING OF
SEC. 2(A); IT ALSO AGREED THAT PAYMENTS TO ONE WHO HAS BEEN PERMITTED
ACTUALLY TO PERFORM THE SERVICES DO FALL WITHIN THE EXCEPTION.  BUT IT
DIVIDED OVER THE QUESTION WHETHER THE PAYMENT OF MONEY TO ONE WHOSE
SINCERE OFFER TO WORK IS REJECTED CONSTITUTES THE PAYMENT OF "WAGES" TO
A "BONA-FIDE EMPLOYEE."  SINCE THE OFFENCE CHARGED HERE IS CONSPIRACY,
THESE QUESTIONS MUST BE PUT SOMEWHAT DIFFERENTLY.  THUS, THERE IS NO
CONSPIRACY TO VIOLATE THE ACT IF THE PURPOSE OF THE DEFENDANTS IS
ACTUALLY TO PERFORM THE SERVICES IN RETURN FOR THE MONEY, BUT THERE IS
A PUNISHABLE CONSPIRACY IF THEIR PLAN IS TO OBTAIN MONEY WITHOUT DOING
THE WORK.  THE DOUBTFUL CASE ARISES WHERE THE DEFENDANTS AGREE TO
TENDER THEIR SERVICES IN GOOD FAITH TO AN EMPLOYER AND TO WORK IF HE
ACCEPTS THEIR OFFER, BUT AGREE FURTHER THAT THE PROTECTION OF THEIR
TRADE UNION INTERESTS REQUIRES THAT HE SHOULD PAY AN AMOUNT EQUIVALENT
TO THE PREVAILING UNION WAGE EVEN IF HE REJECTS THEIR PROFFERED
SERVICES. 

WE THINK THAT SUCH AN AGREEMENT IS COVERED BY THE EXCEPTION.  THE
TERMS "WAGES," "BONA-FIDE EMPLOYEE" AND "BONA-FIDE EMPLOYER" ARE
SUSCEPTIBLE OF MORE THAN ONE MEANING, AND THE BACKGROUND AND
LEGISLATIVE HISTORY OF THIS ACT REQUIRE THAT THEY BE BROADLY DEFINED. 
WE HAVE EXPRESSED OUR BELIEF THAT CONGRESS INTENDED TO LEAVE UNAFFECTED
THE ORDINARY ACTIVITIES OF LABOR UNIONS.  THE PROVISO IN SEC. 6
SAFEGUARDING "THE RIGHTS OF BONA-FIDE LABOR ORGANIZATIONS IN LAWFULLY
CARRYING OUT THE LEGITIMATE OBJECTS THEREOF," ALTHOUGH OBSCURE INDEED,
STRENGTHENS US SOMEWHAT IN THAT OPINION.  FN12  THE TEST MUST THEREFORE
BE WHETHER THE PARTICULAR ACTIVITY WAS AMONG OR IS AKIN TO LABOR UNION
ACTIVITIES WITH WHICH CONGRESS MUST BE TAKEN TO HAVE BEEN FAMILIAR WHEN
THIS MEASURE WAS ENACTED.  ACCEPTING PAYMENTS EVEN WHERE SERVICES ARE
REFUSED IS SUCH AN ACTIVITY.  THE CIRCUIT COURT HAS REFERRED TO THE
"STAND-BY" ORCHESTRA DEVICE, BY WHICH A UNION LOCAL REQUIRES THAT ITS
MEMBERS BE SUBSTITUTED FOR VISITING MUSICIANS, OR, IF THE PRODUCER OR
CONDUCTOR INSISTS UPON USING HIS OWN MUSICIANS, THAT THE MEMBERS OF THE
LOCAL BE PAID THE SUMS WHICH THEY WOULD HAVE EARNED HAD THEY
PERFORMED.  THAT SIMILAR DEVICES ARE EMPLOYED IN OTHER TRADES IS WELL
KNOWN.  IT IS ADMITTED HERE THAT THE STAND-BY MUSICIAN HAS A "JOB" EVEN
THOUGH HE RENDERS NO ACTUAL SERVICE.  THERE CAN BE NO QUESTION THAT HE
DEMANDS THE PAYMENT OF MONEY REGARDLESS OF THE MANAGEMENT'S WILLINGNESS
TO ACCEPT HIS LABOR.  IF, AS IT IS AGREED, THE MUSICIAN WOULD ESCAPE
PUNISHMENT UNDER THIS ACT EVEN THOUGH HE OBTAINED HIS "STAND-BY JOB" BY
FORCE OR THREATS, IT IS CERTAINLY DIFFICULT TO SEE HOW A TEAMSTER COULD
BE PUNISHED FOR ENGAGING IN THE SAME PRACTICE.  IT IS NOT OUR PROVINCE
EITHER TO APPROVE OR DISAPPROVE SUCH TACTICS.  BUT WE DO BELIEVE THAT
THEY ARE NOT "THE ACTIVITIES OF PREDATORY CRIMINAL GANGS OF THE KELLY
AND DILLINGER TYPES" AT WHICH THE ACT WAS AIMED, AND THAT ON THE
CONTRARY THEY ARE AMONG THOSE PRACTICES OF LABOR UNIONS WHICH WERE
INTENDED TO REMAIN BEYOND ITS BAN. 

THIS DOES NOT MEAN THAT SUCH ACTIVITIES ARE BEYOND THE REACH OF
FEDERAL LEGISLATIVE CONTROL.  NOR DOES IT MEAN THAT THEY NEED GO
UNPUNISHED.  THE POWER OF STATE AND LOCAL AUTHORITIES TO PUNISH ACTS OF
VIOLENCE IS BEYOND QUESTION.  IT IS NOT DIMINISHED OR AFFECTED BY THE
CIRCUMSTANCE THAT THE VIOLENCE MAY BE THE OUTGROWTH OF A LABOR
DISPUTE.  THE USE OF VIOLENCE DISCLOSED BY THIS RECORD IS PLAINLY
SUBJECT TO THE ORDINARY CRIMINAL LAW. 

AS WE HAVE SAID, THE EVIDENCE WITH RESPECT TO THE CRUCIAL ISSUES WAS
CONFLICTING.  THUS, THE JURY MIGHT HAVE BELIEVED THAT IN SOME INSTANCES
THE DEFENDANTS REFUSED TO DO ANY DRIVING OR UNLOADING WHEN REQUESTED TO
DO SO, THAT IN OTHER CASES THEY DID NOT OFFER TO WORK, THAT IN OTHER
CASES THEIR OFFERS WERE REJECTED, AND THAT IN STILL OTHER CASES THEY
ACTUALLY DID SOME OR ALL OF THE DRIVING AND UNLOADING.  IN THE EARLY
STAGES, WRITTEN CONTRACTS WERE NOT IN EXISTENCE; LATER, A NUMBER OF THE
OWNERS SIGNED CONTRACTS AND THE DEFENDANTS PERFORMED THE SERVICES FOR
WHICH THEY CALLED. 

THE JURY'S TASK WAS DIFFICULT.  THE TRIAL LASTED SIX WEEKS.  THE JURY
REQUIRED TWO DAYS IN WHICH TO REACH A VERDICT, AND TWICE DURING THAT
PERIOD IT SOUGHT FURTHER INSTRUCTIONS FROM THE COURT, PARTICULARLY WITH
REFERENCE TO THE LAW RELATING TO LABOR ACTIVITY.  IN SUCH
CIRCUMSTANCES, WHERE ACTS OF VIOLENCE NATURALLY WOULD INFLUENCE THE
MINDS OF THE JURY, THE INSTRUCTIONS WERE OF VITAL IMPORTANCE,
ESPECIALLY AS THEY AFFECTED THE QUESTION OF WHETHER THE PAYMENTS WHICH
THE DEFENDANTS CONSPIRED TO OBTAIN FELL WITHIN THE EXCEPTION CONTAINED
IN SEC. 2(A).  THE TRIAL JUDGE MADE A NUMBER OF STATEMENTS WHICH WERE
RELEVANT TO THIS ISSUE, BUT WE AGREE WITH THE CIRCUIT COURT THAT THE
FOLLOWING WERE DECISIVE:    "IF THE JURY FIND THAT THE SUMS OF MONEY
PAID BY THE TRUCK OPERATORS WERE NOT WAGES SO PAID IN RETURN FOR
SERVICES PERFORMED BY SUCH DEFENDANTS, BUT WERE PAYMENTS MADE BY THE
OPERATORS IN ORDER TO INDUCE THE DEFENDANTS TO REFRAIN FROM INTERFERING
UNLAWFULLY WITH THE OPERATION OF THEIR TRUCKS, THEN THE SUMS IN
QUESTION MAY NOT BE REGARDED AS WAGES PAID BY A BONA FIDE EMPLOYER TO A
BONA FIDE EMPLOYEE. 

"THE FACT THAT ANY DEFENDANT MAY HAVE DONE SOME WORK ON A TRUCK OF AN
OPERATOR IS NOT CONCLUSIVE AS TO WHETHER PAYMENTS RECEIVED BY SUCH
DEFENDANTS WERE WAGES; THE JURY MAY CONSIDER THE PERFORMANCE OF WORK BY
A DEFENDANT AS EVIDENCE OF THE NATURE OF THE RELATIONSHIP BETWEEN THE
DEFENDANT AND THE OPERATOR AS ESTABLISHING THE STATUS OF A BONA FIDE
EMPLOYER AND A BONA FIDE EMPLOYEE.  IF, HOWEVER, WHAT THE OPERATOR WAS
PAYING FOR WAS NOT LABOR PERFORMED BUT MERELY FOR PROTECTION FROM
INTERFERENCE BY THE DEFENDANTS WITH THE OPERATION OF OPERATOR'S TRUCKS,
THE FACT THAT A DEFENDANT MAY HAVE DONE SOME WORK ON AN OPERATOR'S
TRUCK IS NOT CONCLUSIVE." 

THESE INSTRUCTIONS EMBODY THE RULE FOR WHICH THE GOVERNMENT CONTENDS,
AND WHICH WE THINK IS ERRONEOUS FOR THE REASONS WE HAVE GIVEN.  UNDER
THEM THE JURY WAS FREE TO RETURN A VERDICT OF GUILTY IF IT FOUND THAT
THE MOTIVE OF THE OWNERS IN MAKING THE PAYMENTS WAS TO PREVENT FURTHER
DAMAGE AND INJURY RATHER THAN TO SECURE THE SERVICES OF THE
DEFENDANTS.  WHETHER OR NOT THE DEFENDANTS WERE GUILTY OF CONSPIRACY
THUS BECAME CONTINGENT UPON THE PURPOSES OF OTHERS AND NOT UPON THEIR
OWN AIMS AND OBJECTIVES.  MOREOVER, THE CHARGE FAILED CORRECTLY TO
EXPLAIN THE LEGAL CONSEQUENCES OF PROOF THAT THE OWNERS HAD REJECTED
BONA FIDE OFFERS BY THE DEFENDANTS TO PERFORM THE SERVICES.  AS WE HAVE
SAID, THE JURY WAS BOUND TO ACQUIT THE DEFENDANTS IF IT FOUND THAT
THEIR OBJECTIVE AND PURPOSE WAS TO OBTAIN BY THE USE OR THREAT OF
VIOLENCE THE CHANCE TO WORK FOR THE MONEY BUT TO ACCEPT THE MONEY EVEN
IF THE EMPLOYERS REFUSED TO PERMIT THEM TO WORK.  WHILE THE 48TH, 49TH
AND 58TH INSTRUCTIONS REQUESTED BY THE DEFENDANTS, ALL OF WHICH WERE
REFUSED, DO NOT CONSTITUTE A COMPLETE EXPOSITION OF THE RULES WHICH WE
REGARD AS APPLICABLE TO THIS CASE, THEY COVER A GOOD DEAL OF THE GROUND
AND SHOULD HAVE BEEN GRANTED.  THE 48TH STATES THAT "IT IS NOT AN
OFFENSE UNDER THE ANTI-RACKETEERING ACT FOR ANYONE TO OBTAIN EMPLOYMENT
BY THE USE OR THREAT OF VIOLENCE IF THE INTENTION IS TO ACTUALLY WORK
FOR THE PAY RECEIVED, AND TO GIVE AN HONEST DAY'S WORK FOR A DAY'S
WAGE."  THE 49TH DECLARED THAT "IT IS NOT THE PURPOSE OF THE ANTI
RACKETEERING ACT TO PREVENT LABOR UNIONS FROM ATTEMPTING TO OBTAIN
EMPLOYMENT FOR THEIR MEMBERS,  ...  AND THAT THE USE OF VIOLENCE OR THE
THREAT OF VIOLENCE FOR SUCH PURPOSES, WHILE PUNISHABLE UNDER THE LAWS,
IS NOT PUNISHABLE UNDER THE ANTI-RACKETEERING ACT."  THE 58TH REQUESTED
CHARGE READ AS FOLLOWS: 

"I CHARGE YOU THAT IN ORDER THAT THE DEFENDANTS HEREIN MAY BE
CONVICTED UNDER ANY ONE OF THE FOUR COUNTS OF THE ANTI-RACKETEERING
INDICTMENT, YOU MUST FIND A CONSPIRACY UNDER SUCH COUNTS; AND THAT IN
ORDER TO SUSTAIN THE CHARGE OF CONSPIRACY UNDER ANY ONE OF THE COUNTS
UNDER THE ANTI-RACKETEERING INDICTMENT, THE PROOF MUST SHOW NOT ONLY
THAT INDIVIDUAL DEFENDANTS OBTAINED MONEY WITHOUT RENDERING ADEQUATE
SERVICE, BUT THAT IT WAS THE AIM AND OBJECT OF THE CONSPIRACY THAT  ...
(THEY)  FN13  SHOULD OBTAIN MONEY WITHOUT RENDERING ADEQUATE SERVICE
THEREFOR."  SINCE THE INSTRUCTIONS DENIED, AND THE MISLEADING
INSTRUCTIONS ACTUALLY GIVEN, GO TO WHAT IS INDEED THE HEART OF THE
CASE, WE HOLD THAT THE CONVICTIONS CANNOT STAND AND THAT THE JUDGMENT
OF THE CIRCUIT COURT OF APPEALS MUST BE AFFIRMED. 

FN1  48 STAT. 979, U.S.C., TITLE 18, SEC. 420(A).  LOCAL 807 AND THE
26 INDIVIDUALS WERE ALSO CONVICTED OF CONSPIRACY TO VIOLATE SEC. 1 OF
THE SHERMAN ACT (26 STAT. 209, U.S.C. TITLE 15, SEC. 1).  THE CIRCUIT
COURT OF APPEALS REVERSED THE CONVICTIONS UNDER THIS INDICTMENT AS
WELL, BUT THE GOVERNMENT DOES NOT SEEK REVIEW OF THIS PART OF ITS
JUDGMENT. 

FN2  THIS EXCEPTION DOES NOT APPEAR IN SEC. 2(B).  BUT WE AGREE WITH
THE CIRCUIT COURT OF APPEALS THAT IT TOO IS SUBJECT TO THE EXCEPTION. 
THE TRIAL JUDGE'S INSTRUCTIONS SHOW THAT HE SHARED THIS VIEW.  AND THE
DEFINITION OF TERMS IN SEC. 3(B) WAS APPARENTLY INTENDED TO ACHIEVE
THIS RESULT. 

FN3  S. RES. 74, 73D CONG., 1ST SESS. 

FN4  SEE 78 CONG. REC. 457, 73D CONG., 2D SESS. 

FN5  S. REP. NO. 532, 73D CONG., 2D SESS.  THE REPORT INCLUDED A
MEMORANDUM FROM THE DEPARTMENT OF JUSTICE IN WHICH IT WAS STATED:  "THE
PROVISIONS OF THE PROPOSED STATUTE ARE LIMITED SO AS NOT TO INCLUDE THE
USUAL ACTIVITIES OF CAPITALISTIC COMBINATIONS, BONA FIDE LABOR UNIONS,
AND ORDINARY BUSINESS PRACTICES WHICH ARE NOT ACCOMPANIED BY
MANIFESTATIONS OF RACKETEERING." 

FN6  78 CONG. REC. 5735, 73D CONG., 2D SESS. 

FN7  78 CONG. REC. 5859, 73D CONG., 2D SESS. 

FN8  "PROVIDED, THAT NO COURT OF THE UNITED STATES SHALL CONSTRUE OR
APPLY ANY OF THE PROVISIONS OF THIS ACT IN SUCH MANNER AS TO IMPAIR,
DIMINISH, OR IN ANY MANNER AFFECT THE RIGHTS OF BONA-FIDE LABOR
ORGANIZATIONS IN LAWFULLY CARRYING OUT THE LEGITIMATE OBJECTS THEREOF,
AS SUCH RIGHTS ARE EXPRESSED IN EXISTING STATUTES OF THE UNITED
STATES."  U.S.C., TITLE 18, SEC. 420(D). 

FN9  H. REP. NO. 1833, 73D CONG., 2D SESS. 

FN10  78 CONG. REC. 10867, 11402-11403, 11482, 73D CONG., 2D SESS. 

FN11  S. REP. NO. 1440, 73D CONG., 2D SESS. 

FN12  SEE NOTE 8, SUPRA. 

FN13  THE WORDS "ALL OF THE CONSPIRATORS," RATHER THAN "THEY,"
APPEARED IN THE REQUESTED INSTRUCTION AS SUBMITTED TO THE TRIAL JUDGE. 
WE THINK THAT AS SO EXPRESSED THE CHARGE WOULD HAVE BEEN ERRONEOUS, BUT
THAT WITH THIS CHANGE IT STATES THE CORRECT RULE. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

I THINK THE JUDGMENT SHOULD BE REVERSED, AND THE CONVICTIONS
AFFIRMED, SUBJECT ONLY TO AN EXAMINATION OF THE SUFFICIENCY OF THE
EVIDENCE AS TO SOME OF THE RESPONDENTS, AND TO A CONSIDERATION OF
WHETHER THE UNION ITSELF IS A "PERSON" WITHIN THE MEANING OF THE
STATUTE. 

RESPONDENTS, WHO ARE MEMBERS OF A LABOR UNION, WERE CONVICTED OF
CONSPIRACY TO VIOLATE THE ANTI-RACKETEERING ACT.  THEY, OR SOME OF
THEM, LAY IN WAIT FOR TRUCKS PASSING FROM NEW JERSEY TO NEW YORK,
FORCED THEIR WAY ONTO THE TRUCKS, AND BY BEATING OR THREATS OF BEATING
THE DRIVERS PROCURED PAYMENTS TO THEMSELVES FROM THE DRIVERS OR THEIR
EMPLOYERS OF A SUM OF MONEY FOR EACH TRUCK, $9.42 FOR A LARGE TRUCK AND
$8.41 FOR A SMALL ONE, SAID TO BE THE EQUIVALENT OF THE UNION WAGE
SCALE FOR A DAY'S WORK.  IN SOME INSTANCES THEY ASSISTED OR OFFERED TO
ASSIST IN UNLOADING THE TRUCKS; AND IN OTHERS THEY DISAPPEARED AS SOON
AS THE MONEY WAS PAID, WITHOUT RENDERING OR OFFERING TO RENDER ANY
SERVICE. 

THE ANTI-RACKETEERING ACT CONDEMNS THE OBTAINING OR CONSPIRACY TO
OBTAIN THE PAYMENT OF MONEY OR DELIVERY OF PROPERTY BY "THE USE OF  ...
FORCE, VIOLENCE, OR COERCION  ...  "  TO THIS DEFINITION OF THE
OFFENSE CONGRESS ADDED TWO - AND ONLY TWO - QUALIFICATIONS.  IT DOES
NOT EMBRACE THE "PAYMENT OF WAGES BY A BONA FIDE EMPLOYER TO A BONA
FIDE EMPLOYEE," AND THE PROVISIONS OF THE ACT ARE NOT TO BE APPLIED SO
AS TO "AFFECT THE RIGHTS OF BONA FIDE LABOR ORGANIZATIONS IN LAWFULLY
CARRYING OUT THE LEGITIMATE OBJECTS THEREOF, AS SUCH RIGHTS ARE
EXPRESSED IN EXISTING STATUTES OF THE UNITED STATES." 

THERE IS ABUNDANT EVIDENCE IN THE RECORD FROM WHICH THE JURY COULD
HAVE CONCLUDED THAT RESPONDENTS, OR SOME OF THEM, CONSPIRED TO COMPEL
BY FORCE AND VIOLENCE THE TRUCK DRIVERS OR THEIR EMPLOYERS TO PAY THE
SUMS OF MONEY TO RESPONDENTS OR SOME OF THEM; THAT THE PAYMENTS WERE
MADE BY THE DRIVERS OR TRUCK OWNERS TO PURCHASE IMMUNITY FROM THE
VIOLENCE OF RESPONDENTS AND FOR NO OTHER REASON; AND THAT THIS WAS THE
END KNOWINGLY SOUGHT BY RESPONDENTS. 

I CAN ONLY CONCLUDE THAT SUCH CONDUCT ACCOMPANIED BY SUCH A PURPOSE
CONSTITUTES A VIOLATION OF THE STATUTE EVEN THOUGH THE DEFENDANTS STOOD
READY TO UNLOAD THE TRUCKS IN THE EVENT THAT THEY WERE HIRED TO DO SO.
UNLESS THE LANGUAGE OF THE STATUTE IS TO BE DISREGARDED, ONE WHO HAS
REJECTED THE PROFFERED SERVICE AND PAYS MONEY ONLY IN ORDER TO PURCHASE
IMMUNITY FROM VIOLENCE IS NOT A BONA FIDE EMPLOYER AND IS NOT PAYING
THE EXTORTED MONEY AS WAGES.  THE CHARACTER OF WHAT THE DRIVERS OR
OWNERS DID AND INTENDED TO DO - PAY MONEY TO AVOID A BEATING - WAS NOT
ALTERED BY THE WILLINGNESS OF THE PAYEE TO ACCEPT AS WAGES FOR SERVICES
RENDERED WHAT HE IN FACT INTENTIONALLY EXACTED FROM THE DRIVER OR OWNER
AS THE PURCHASE PRICE OF IMMUNITY FROM ASSAULT, AND WHAT HE INTENDED SO
TO EXACT WHETHER THE PROFFERED SERVICES WERE ACCEPTED OR NOT.  IT IS NO
ANSWER TO SAY THAT THE GUILT OF A DEFENDANT IS PERSONAL AND CANNOT BE
MADE TO DEPEND UPON THE ACTS AND INTENTION OF ANOTHER.  SUCH AN ANSWER
IF VALID WOULD RENDER COMMON LAW ROBBERY AN INNOCENT PASTIME.  FOR
THERE CAN BE NO ROBBERY UNLESS THE PURPOSE OF THE VICTIM IN HANDING
OVER THE MONEY IS TO AVOID FORCE.  PRECISELY AS UNDER THE PRESENT
STATUTE, THE ROBBER'S USE OF FORCE AND ITS INTENDED EFFECT ON THE
VICTIM ARE ESSENTIAL ELEMENTS OF THE CRIME BOTH OF WHICH THE PROSECUTOR
MUST PROVE.  UNDER THIS STATUTE WHEN BOTH ARE PRESENT THE CRIME IS
COMPLETE, IRRESPECTIVE OF OTHER MOTIVES WHICH MAY ACTUATE THE OFFENDER,
IF HE IS ALSO AWARE, AS WE MUST TAKE IT THE JURY FOUND, THAT THE MONEY
IS NOT IN FACT PAID AS WAGES BY A BONA FIDE EMPLOYER.  IT IS A
CONTRADICTION IN TERMS TO SAY THAT THE PAYMENT OF MONEY FORCIBLY
EXTORTED BY A PAYEE WHO IS IN ANY CASE A LAWBREAKER, AND PAID ONLY TO
SECURE IMMUNITY FROM VIOLENCE, WITHOUT ESTABLISHMENT OF AN EMPLOYMENT
RELATIONSHIP OR THE RENDERING OF SERVICES, IS A GOOD FAITH PAYMENT OR
RECEIPT OF WAGES. 

EVEN THOUGH THE PROCURING OF JOBS BY VIOLENCE IS NOT WITHIN THE ACT,
AND THOUGH THIS INCLUDES THE "STAND-BY" JOB WHERE NO ACTUAL SERVICE IS
RENDERED, THE GRANTED IMMUNITY, UNLESS ITS WORDS BE DISREGARDED, DOES
NOT EXTEND TO THE CASE WHERE THE IMMEDIATE OBJECTIVE IS TO FORCE THE
PAYMENT OF MONEY REGARDLESS OF THE VICTIM'S WILLINGNESS TO ACCEPT AND
TREAT THE EXTORTIONER AS AN EMPLOYEE.  IT WAS FOR THE JURY TO SAY
WHETHER SUCH WAS THE OBJECTIVE OF RESPONDENTS AND WHETHER THEY WERE
AWARE THAT THE MONEY WAS PAID BECAUSE OF THEIR VIOLENCE AND NOT AS
WAGES. 

WHEN THE ANTI-RACKETEERING ACT WAS UNDER CONSIDERATION BY CONGRESS,
NO MEMBER OF CONGRESS AND NO LABOR LEADER HAD THE TEMERITY TO SUGGEST
THAT SUCH PAYMENTS, MADE ONLY TO SECURE IMMUNITY FROM VIOLENCE AND
INTENTIONALLY COMPELLED BY ASSAULT AND BATTERY, COULD BE REGARDED AS
THE PAYMENT OF "WAGES BY A BONA FIDE EMPLOYER" OR THAT THE COMPULSION
OF SUCH PAYMENTS IS A LEGITIMATE OBJECT OF A LABOR UNION, OR WAS EVER
MADE SO BY ANY STATUTE OF THE UNITED STATES.  I AM UNABLE TO CONCUR IN
THAT SUGGESTION NOW.  IT FOLLOWS THAT ALL THE DEFENDANTS WHO CONSPIRED
TO COMPEL SUCH PAYMENTS BY FORCE AND VIOLENCE, REGARDLESS OF THE
WILLINGNESS OF THE VICTIMS TO ACCEPT THEM AS EMPLOYEES, WERE RIGHTLY
CONVICTED. 

IF I AM RIGHT IN THIS CONCLUSION, THERE WAS NO ERROR IN THE
INSTRUCTIONS TO THE JURY.  ALL THE COUNTS OF THE INDICTMENT WERE FOR
CONSPIRACY TO VIOLATE THE STATUTE.  THE JURY WAS TOLD THAT TO CONVICT
IT MUST FIND CONSPIRACY OR AGREEMENT BY RESPONDENTS TO VIOLATE THE
STATUTE AND THAT THEY MUST HAVE THE PURPOSE OR INTENTION TO COMMIT THE
CRIME WHICH IT DEFINED.  AS I HAVE SAID, THE INTENTION TO COMMIT THE
OFFENSE INCLUDES THE INTENTION TO USE FORCE AND VIOLENCE ON THE VICTIM
AND THE INTENTION THAT THE VICTIM SHALL PAY BECAUSE OF IT.  THE JURY
WAS THEN INSTRUCTED THAT THE OFFENSE DEFINED BY THE STATUTE WAS THE
OBTAINING OF MONEY OR PROPERTY BY FORCE AND VIOLENCE BUT THAT "THE JURY
MAY NOT FIND THE DEFENDANTS GUILTY ON ANY COUNT OF THE ANTI
RACKETEERING ACT INDICTMENT IF THE MONEY WHICH THEY ARE CHARGED WITH
HAVING OBTAINED FROM TRUCK OWNERS THROUGH THE USE OF FORCE AND VIOLENCE
OR THREATS OF FORCE AND VIOLENCE WAS PAID AS WAGES, AND IF THE
DEFENDANTS WHO RECEIVED THE MONEY WERE BONA FIDE EMPLOYEES AND THE
TRUCK OPERATORS WHO PAID THE MONEY WERE BONA FIDE EMPLOYERS  ...  IF
THE JURY FIND THAT THE SUMS OF MONEY PAID BY THE TRUCK OPERATORS WERE
NOT WAGES SO PAID IN RETURN FOR SERVICES PERFORMED BY SUCH DEFENDANTS,
BUT WERE PAYMENTS MADE BY THE OPERATORS IN ORDER TO INDUCE THE
DEFENDANTS TO REFRAIN FROM INTERFERING UNLAWFULLY WITH THE OPERATION OF
THEIR TRUCKS, THEN THE SUMS IN QUESTION MAY NOT BE REGARDED AS WAGES
PAID BY A BONA FIDE EMPLOYER TO A BONA FIDE EMPLOYEE  ...  IF, HOWEVER,
WHAT THE OPERATOR WAS PAYING FOR WAS NOT LABOR PERFORMED BUT MERELY FOR
PROTECTION FROM INTERFERENCE BY THE DEFENDANTS WITH THE OPERATION OF
THE OPERATOR'S TRUCKS, THE FACT THAT A DEFENDANT MAY HAVE DONE SOME
WORK ON AN OPERATOR'S TRUCK IS NOT CONCLUSIVE." 

RESPONDENTS' 48TH AND 49TH REQUESTS WERE RIGHTLY REFUSED.  SO FAR AS
THEY INVOLVED A RULING THAT THE OBTAINING OF EMPLOYMENT BY FORCE AND
VIOLENCE DOES NOT CONSTITUTE THE OFFENSE, THE COURT HAD ALREADY RULED
SPECIFICALLY THAT THERE COULD BE NO SUBSTANTIVE OFFENSE UNLESS THE
PAYMENT OF MONEY OR PROPERTY HAD BEEN OBTAINED BY FORCE.  BUT, IN ANY
CASE, BOTH REQUESTS WERE ERRONEOUS BECAUSE THEY MADE RESPONDENTS'
WILLINGNESS TO WORK THE TEST OF GUILT, REGARDLESS OF THE INTENDED AND
ACTUAL EFFECT OF THE VIOLENCE ON THE VICTIMS IN COMPELLING THEM TO PAY
THE MONEY NOT AS WAGES BUT IN ORDER TO SECURE IMMUNITY FROM ASSAULT. 
THE FIRST PART OF THE 58TH REQUEST LIKEWISE HAD ALREADY BEEN CHARGED. 
THE REST WAS PLAINLY DEFECTIVE, SINCE IT REQUIRED AN ACQUITTAL UNLESS
IT WAS THE AIM AND OBJECT OF THE CONSPIRACY THAT "ALL OF THE
CONSPIRATORS SHOULD OBTAIN MONEY WITHOUT RENDERING ADEQUATE SERVICE
THEREFOR."  UPON ANY THEORY OF THE MEANING OF THE STATUTE, IT WAS NOT
NECESSARY FOR THE GOVERNMENT TO SHOW THAT IT WAS THE OBJECT OF THE
CONSPIRACY THAT "ALL THE CONSPIRATORS" SHOULD RECEIVE PAYMENTS OF
MONEY.  THEY WOULD BE EQUALLY GUILTY IF THEY HAD CONSPIRED TO PROCURE
THE PAYMENTS TO SOME. 
..END :






MACGREGOR V. STATE MUTUAL CO., 315 U.S. 280 


NO. 179.  ARGUED FEBRUARY 2, 3, 1942.  - DECIDED FEBRUARY 16, 1942.  -
119 F.2D 148, AFFIRMED. 


IN THE ABSENCE OF ANY RELEVANT DECISION BY THE STATE COURTS, THIS
COURT ACCEPTS IN THIS CAUSE AN INTERPRETATION OF LOCAL LAW BY THE
FEDERAL DISTRICT COURT IN THE STATE AND BY THREE CIRCUIT JUDGES WHOSE
CIRCUIT INCLUDES IT.  P. 281. 

MACGREGOR, EXECUTOR, V. STATE MUTUAL LIFE ASSURANCE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 314 U.S. 591, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE PETITIONER IN A SUIT TO RECOVER THE AMOUNT OF A PREMIUM
PAID ON AN ANNUITY CONTRACT. 

PER CURIAM. 

PETITIONER BROUGHT THIS ACTION TO RECOVER THE PREMIUM OF A LIFE
ANNUITY CONTRACT PURCHASED BY HIS DECEDENT.  THE SUIT WAS BEGUN IN A
STATE COURT OF MICHIGAN, BUT WAS REMOVED, BECAUSE OF DIVERSITY OF
CITIZENSHIP, TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF MICHIGAN.  PETITIONER'S CLAIM IS FOUNDED ON THE
APPLICABILITY OF MICHIGAN LEGISLATION REGULATING THE CONDUCT OF
INSURANCE BUSINESS IN MICHIGAN.  THE DISTRICT COURT HELD THAT "THE
CONTRACT INVOLVED HEREIN HAVING BEEN EXECUTED OUTSIDE THE STATE OF
MICHIGAN, THE STATUTES OF THE STATE OF MICHIGAN RELIED UPON BY THE
PLAINTIFF ARE NOT APPLICABLE."  ACCORDINGLY JUDGMENT WENT AGAINST
PETITIONER.  THIS JUDGMENT WAS AFFIRMED BY THE CIRCUIT COURT OF
APPEALS.  119 F.2D 148. 

NO DECISION OF THE SUPREME COURT OF MICHIGAN, OR OF ANY OTHER COURT
OF THAT STATE, CONSTRUING THE RELEVANT MICHIGAN LAW HAS BEEN BROUGHT TO
OUR ATTENTION.  IN THE ABSENCE OF SUCH GUIDANCE, WE SHALL LEAVE
UNDISTURBED THE INTERPRETATION PLACED UPON PURELY LOCAL LAW BY A
MICHIGAN FEDERAL JUDGE OF LONG EXPERIENCE AND BY THREE CIRCUIT JUDGES
WHOSE CIRCUIT INCLUDES MICHIGAN.  AFFIRMED. 
..END :












NATIONAL LABOR RELATIONS BOARD V. AUTOMOTIVE MAINTENANCE MACHINERY CO.,
315 U.S. 282 


NO. 188.  ARGUED FEBRUARY 3, 1942.  - DECIDED FEBRUARY 16, 1942.  - 116
F.2D 350, REVERSED. 


FINDINGS OF THE LABOR BOARD SUSTAINED AS SUPPORTED BY SUBSTANTIAL
EVIDENCE.  P. 282. 

NATIONAL LABOR RELATIONS BOARD V. AUTOMOTIVE MAINTENANCE MACHINERY
CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 314 U.S. 596, TO REVIEW A JUDGMENT SETTING ASIDE AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD, 13 N.L.R.B. 338, ORDERING THE
COMPANY TO CEASE AND DESIST FROM UNFAIR LABOR PRACTICES; TO CEASE
GIVING EFFECT TO A CONTRACT WITH AN "INSIDE" UNION; TO WITHDRAW
RECOGNITION FROM, AND TO DISESTABLISH, THAT UNION; TO REINSTATE WITH
BACK-PAY THREE DISCHARGED EMPLOYEES; AND TO POST NOTICES, ETC.  A
PROVISION OF THE ORDER FOR REIMBURSEMENT OF CERTAIN GOVERNMENT RELIEF
AGENCIES WAS ABANDONED BY THE BOARD. 

PER CURIAM. 

UPON EXAMINATION OF THE RECORD, THE COURT CONCLUDES THAT THE BOARD'S
FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.  LABOR BOARD V. LINK
BELT CO., 311 U.S. 584; WESTINGHOUSE ELECTRIC & MFG. CO. V. LABOR
BOARD, 312 U.S. 660.  THE JUDGMENT IS THEREFORE REVERSED WITH
DIRECTIONS TO ENFORCE THE BOARD'S ORDER IN FULL, BUT WITH THE
MODIFICATION PROPOSED BY THE BOARD TO CONFORM TO THE DECISION IN
REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 

7.  THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS ARE OF OPINION THAT THE
ORDER AS MODIFIED SHOULD BE ENFORCED EXCEPT WITH RESPECT TO THE ALLEGED
DISCRIMINATORY DISCHARGES OF WARNER, JR., AND JORDAN, WHICH THEY THINK
ARE WITHOUT THE SUPPORT OF SUBSTANTIAL EVIDENCE.  REVERSED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











STEWART V. SOUTHERN RY. CO., 315 U.S. 283 


NO. 161.  ARGUED JANUARY 8, 1942.  - DECIDED FEBRUARY 16, 1942.  - 119
F.2D 85, REVERSED. 


EVIDENCE, IN A RAILWAY ACCIDENT CASE, HELD INSUFFICIENT TO SUSTAIN A
FINDING ON THE ISSUE WHETHER THE COUPLING MECHANISM BETWEEN TWO FREIGHT
CARS WAS SUCH AS TO COMPLY WITH THE FEDERAL SAFETY APPLIANCE ACT.  P.
286. 

STEWART, ADMINISTRATOR, V. SOUTHERN RAILWAY CO.* 

*ON PETITION FOR REHEARING, IT APPEARING THAT THE PARTIES HAD SETTLED
THE CASE, THE JUDGMENT OF THE COURT IN THIS CASE WAS VACATED, THAT OF
THE COURT OF APPEALS REVERSED, AND THE CASE REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS THAT IT BE DISMISSED AS MOOT, POST, P. 784. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 314 U.S. 591, TO REVIEW A JUDGMENT WHICH REVERSED A
RECOVERY BY THE ADMINISTRATOR OF A DECEASED RAILWAY EMPLOYEE IN AN
ACTION AGAINST THE RAILWAY COMPANY FOR PERSONAL INJURIES AND DEATH. 
SEE ALSO 115 F.2D 85. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT BY THE ADMINISTRATRIX OF STEWART'S ESTATE TO
RECOVER FOR HIS DEATH IN CONSEQUENCE OF A VIOLATION OF THE SAFETY
APPLIANCE ACT.  FN1  THE CREW OF WHICH THE INTESTATE WAS A MEMBER WAS
ENGAGED IN COUPLING FREIGHT CARS.  STEWART WAS ON THE ENGINEER'S SIDE
OF THE TRAIN.  HE GAVE A BACK-UP SIGNAL WITH WHICH THE ENGINEER
COMPLIED AND THEN A STOP SIGNAL WHICH WAS OBEYED.  THE ENGINEER SAW HIM
GO BETWEEN THE ENDS OF THE LAST CAR OF THE TRAIN AND THE CAR THAT WAS
TO BE COUPLED TO IT.  WHILE THE TRAIN WAS STATIONARY, THIS CAR DRIFTED
INTO COLLISION WITH THE END CAR OF THE TRAIN.  PERSONS WHO RESPONDED TO
STEWART'S CRIES FOUND HIM WITH HIS ARM CRUSHED BETWEEN THE COUPLERS,
BOTH OF WHICH WERE CLOSED.  HIS ARM WAS AMPUTATED AND A FEW DAYS LATER
HE DIED. 

THE ADMINISTRATRIX, PURSUANT TO LEAVE OF A STATE PROBATE COURT,
EXECUTED A RELEASE IN CONSIDERATION OF $5,000 PAID HER.  SUBSEQUENTLY
SHE ALLEGED IN THAT COURT THAT SHE HAD BEEN FRAUDULENTLY INDUCED TO
SETTLE THE CASE, AND SOUGHT AUTHORITY TO RESCIND THE RELEASE.  THE
COURT DECIDED AGAINST HER AFTER FULL HEARING. 

IN THE PRESENT ACTION THE PLAINTIFF OFFERED TESTIMONY AS TO THE
CIRCUMSTANCES OF THE ACCIDENT.  THE RESPONDENT RELIED UPON THE RELEASE;
OFFERED EVIDENCE TO PROVE DEATH WAS DUE TO CAUSES OTHER THAN THE
INJURY, BUT INTRODUCED NO TESTIMONY AS TO WHAT OCCURRED AT THE TIME OF
STEWART'S INJURY, OR AS TO THE CONDITION OF THE COUPLERS.  THE TRIAL
COURT RULED THAT THE DECISION OF THE PROBATE COURT ON THE ISSUE OF
FRAUD IN PROCURING THE RELEASE WAS NOT RES JUDICATA, AND SUBMITTED TO
THE JURY ALL ISSUES, INCLUDING THAT OF THE VALIDITY OF THE RELEASE.  A
VERDICT WAS RENDERED FOR PETITIONER FOR $17,500.  IT DOES NOT APPEAR
WHETHER THIS SUM WAS INTENDED TO BE IN ADDITION TO THE $5,000
THERETOFORE RECEIVED BY THE ADMINISTRATRIX.  THE JUDGMENT ENTERED WAS
FOR THE AMOUNT OF THE VERDICT WITHOUT CREDIT FOR THAT SUM. 

THE RESPONDENT APPEALED TO THE CIRCUIT COURT OF APPEALS.  THE
PETITIONER WAS SUBSTITUTED FOR THE ADMINISTRATRIX, WHO HAD DIED. 
JUDGMENT NON OBSTANTE VEREDICTO WAS DENIED BUT THE JUDGMENT WAS
REVERSED AND THE CAUSE REMANDED FOR A NEW TRIAL, FOR ERRORS IN THE
CHARGE TO THE JURY.  FN2  ON MOTION OF BOTH PARTIES A REHEARING WAS
ACCORDED.  THE COURT THEN HELD THERE WAS NO SUBSTANTIAL EVIDENCE TO
SUSTAIN THE VERDICT, AND REVERSED AND REMANDED WITH DIRECTIONS TO ENTER
A JUDGMENT FOR THE RESPONDENT N3.  THIS COURT GRANTED CERTIORARI. 

THE RECORD CONTAINS NO DIRECT EVIDENCE AS TO ANY DEFECT IN THE
COUPLER MECHANISMS OF THE CARS INVOLVED IN THE ACCIDENT.  EACH WAS
EQUIPPED WITH AN AUTOMATIC COUPLER HAVING A "PIN LIFTER," WHEREBY THE
PIN IN THE COUPLER CAN BE LIFTED SO AS TO ALLOW THE JAW OF THE COUPLER
TO SWING INTO THE OPEN POSITION.  THE PURPOSE OF THE DEVICE IS TO
PERMIT A SWITCHMAN TO OPEN THE COUPLER INTO THE POSITION WHERE IT WILL
ENGAGE WITH THE COUPLER OF THE OTHER CAR UPON IMPACT WITHOUT THE
OPERATOR GOING BETWEEN THE ENDS OF THE CARS.  THE ENGINEER, A WITNESS
FOR PETITIONER, TESTIFIED THAT HE DID NOT SEE THE INTESTATE ATTEMPT TO
USE THE PIN LIFTER, BUT DID SEE HIM GO BETWEEN THE CARS.  THE FOREMAN
OF THE CREW, ALSO A WITNESS FOR THE PETITIONER, TESTIFIED THAT WHEN HE
ARRIVED THE JAWS OF BOTH COUPLERS WERE CLOSED AND DECEDENT'S ARM HAD
BEEN CRUSHED BETWEEN THEM.  HE TESTIFIED THAT AFTER THE ACCIDENT HE
COUPLED THE CARS IN QUESTION BY GOING BETWEEN THE CARS AND OPENING THE
JAW OF THE COUPLER BY HAND.  HE STATED THAT HE TRIED TO USE THE PIN
LIFTER ON THE CAR AT THE END OF THE TRAIN, WHICH WOULD BE THE ONE
AVAILABLE ON THE SIDE OF THE TRAIN ON WHICH HE WAS WORKING.  HE ALSO
TESTIFIED THAT IF THE COUPLER WAS IN WORKING ORDER IT COULD BE SET BY
THE USE OF THE PIN LIFTER.  HE WAS NOT ASKED, AND DID NOT STATE, WHAT
EFFORT HE MADE TO OPERATE THE PIN LIFTER.  NEITHER PARTY ASKED HIM ANY
FURTHER QUESTIONS AS TO THE WORKING CONDITION OF THE PIN LIFTER OR
COUPLER. 

THE PETITIONER INSISTS THAT, IN THE ABSENCE OF EVIDENCE ON BEHALF OF
THE RESPONDENT, AS TO THE CONDITION OF THE COUPLER, THE JURY WERE
ENTITLED TO INFER THAT THE PIN LIFTER WAS NOT IN WORKING ORDER,
OTHERWISE THE FOREMAN, AN EXPERIENCED MAN, WOULD NOT HAVE GONE BETWEEN
THE CARS AND OPENED THE COUPLER JAW BY HAND.  THE COURT BELOW HELD THE
JURY WAS NOT ENTITLED TO DRAW THIS INFERENCE IN THE ABSENCE OF
TESTIMONY BY THE FOREMAN WITH RESPECT TO HIS EFFORTS TO USE THE PIN
LIFTER AND AS TO ITS CONDITION. 

WE HOLD THAT, ON THIS RECORD, NEITHER PARTY IS ENTITLED TO PREVAIL. 
IF THE ISSUE AS TO THE CONDITION OF THE COUPLER MECHANISM WAS
DETERMINATIVE, A NEW TRIAL SHOULD HAVE BEEN ORDERED SO THAT THIS ISSUE
MIGHT HAVE BEEN RESOLVED IN THE LIGHT OF A FULL EXAMINATION OF THE
FOREMAN, THE WITNESS WHO COULD HAVE GIVEN FURTHER TESTIMONY ON THE
SUBJECT. 

THE JUDGMENT MUST BE REVERSED AND THE CAUSE REMANDED TO THE COURT
BELOW FOR FURTHER PROCEEDINGS.  WE EXPRESS NO OPINION ON OTHER ERRORS
ASSIGNED IN THE CIRCUIT COURT OF APPEALS WHICH MAY AFFECT THE
DISPOSITION OF THE CAUSE BY THAT COURT.  REVERSED. 

FN1  45 U.S.C. SEC. 2. 

FN2  115 F.2D 317. 

FN3  119 F.2D 85. 

MR. JUSTICE BLACK, DISSENTING: 

THE JURY FOUND FROM THE EVIDENCE BEFORE IT THAT THE RAILROAD HAD,
CONTRARY TO THE FEDERAL SAFETY APPLIANCE ACT, USED CARS "NOT EQUIPPED
WITH COUPLERS COUPLING AUTOMATICALLY BY IMPACT, AND WHICH CAN BE
UNCOUPLED WITHOUT THE NECESSITY OF MEN GOING BETWEEN THE ENDS OF THE
CARS."  45 U.S.C. SEC. 2.  THE TRIAL JUDGE, WHO ALONE OF THE JUDGES IN
THE SEVERAL PROCEEDINGS BELOW HAD THE OPPORTUNITY TO SEE AND HEAR THE
WITNESSES AS WELL AS TO OBSERVE A COUPLING APPARATUS BROUGHT INTO THE
COURT ROOM AS AN EXHIBIT, MADE IT CLEAR THAT HE REGARDED THE EVIDENCE
AS SUFFICIENT TO SUPPORT THE JURY'S VERDICT BOTH BY SUBMITTING THE
ISSUES TO IT AND BY DENYING A NEW TRIAL.  THE CIRCUIT COURT OF APPEALS
TOOK THE SAME POSITION IN ITS FIRST OPINION.  115 F.2D 317.  SOLICITUDE
FOR THE RIGHT TO TRIAL BY JURY ON ISSUES OF FACT PROMPTED THE ADOPTION
OF THE SEVENTH AMENDMENT AS PART OF THE BILL OF RIGHTS.  FN1  RESPECT
FOR THE INSTITUTION OF TRIAL BY JURY SHOULD, IN MY JUDGMENT, PROMPT US
TO LEAVE UNDISTURBED THE JURY'S FINDING IN THIS CASE THAT THE COUPLER
WAS DEFECTIVE. 

BECAUSE IT MUST RELY ON THE WRITTEN PAGE RATHER THAN LIVING WORDS, AN
APPELLATE COURT CAN NEVER FULLY APPRECIATE THE EFFECT OF TESTIMONY
HEARD BY A JURY OF LOCAL CITIZENS.  EVEN IN THE WRITTEN RECORD,
HOWEVER, I CAN FIND SUPPORT FOR THE JURY'S FINDING WHICH CONVINCES ME
THAT IT SHOULD STAND.  THE TRANSCRIPT SHOWS THE FOLLOWING: 

IF A PIN LIFTER FUNCTIONS PROPERLY, THERE WILL BE AUTOMATIC COUPLING
OF THE CARS, MAKING IT UNNECESSARY FOR A WORKMAN TO GO BETWEEN THEM. 
STEWART WAS AN EXPERIENCED WORKMAN.  BESIDES BEING HIS DUTY, IT WAS
CONDUCIVE TO HIS SAFETY FOR HIM TO USE THE PIN LIFTER TO BRING ABOUT
COUPLING.  ON THE DAY HE WAS FOUND WITH HIS ARM CRUSHED BETWEEN THE
COUPLERS, HE HAD SUCCESSFULLY HANDLED THE COUPLING OF OTHER CARS. 

THE CREW FOREMAN WHO SHORTLY AFTER THE ACCIDENT UNDERTOOK THE
COUPLING OF THE PARTICULAR CARS BETWEEN WHICH STEWART WAS CRUSHED
TESTIFIED AS FOLLOWS: 

"Q.  NOW, AFTER THIS ACCIDENT, WHEN YOU COUPLED THE CARS, WHICH I
PRESUME YOU DID, DID YOU COUPLE THE CARS AFTER THE ACCIDENT? 

"A.  I DID. 

"Q.  HOW DID YOU OPEN THE KNUCKLE? 

"A.  I OPENED IT WITH MY HAND. 

"Q. LET ME ASK YOU, MR. STOGNER, IF THE COUPLER IS WORKING
AUTOMATICALLY, OR THE PIN LIFTER, IS IT NECESSARY TO GO IN BETWEEN THE
CARS TO OPEN WITH YOUR HANDS THEN? 

"A.  NO, SIR." 

AND IN THE COURSE OF CROSS EXAMINATION BY THE COMPANY'S ATTORNEY,
WHOSE QUESTIONS INDICATED HE ACCEPTED THE FACT THAT STOGNER HAD TRIED
WITHOUT SUCCESS TO USE THE PIN LIFTER, STOGNER WAS ASKED: "NOW, WHICH
KNUCKLE DID YOU TRY TO OPEN, OR WHICH PIN LIFTER DID YOU TRY TO USE?" 
HIS REPLY - "THE ONE ON THE NORTH SIDE" - DESIGNATED THE ONE CONNECTED
WITH THE COUPLER WHICH HAD CAUSED STEWART'S DEATH. 

HAD STOGNER'S ATTEMPTS WITH THE PIN LIFTER BEEN SUCCESSFUL, HE WOULD
NOT HAVE HAD TO GO BETWEEN THE CARS TO COUPLE THEM.  BUT THAT WAS WHAT
HE TESTIFIED HE DID AFTER TRYING TO RAISE THE PIN LIFTER.  TRUE,
STOGNER DID NOT SAY HOW MANY ATTEMPTS HE MADE, NOR HOW MUCH FORCE HE
APPLIED IN THE EFFORT.  BUT THE JURY COULD REASONABLY HAVE INFERRED
THAT THE COMPANY'S FOREMAN, A WORKER OF MANY YEARS OF EXPERIENCE,
APPLIED SUCH FORCE AS WOULD HAVE RAISED A PIN LIFTER WHICH WAS NOT
DEFECTIVE.  MOREOVER, SINCE THERE WAS A STATUTORY DUTY NOT TO CONTINUE
USING THIS PARTICULAR PIN LIFTER IF IT WAS DEFECTIVE, WE CAN REASONABLY
ASSUME THAT THE RAILROAD'S INSPECTORS MADE SOME EXAMINATION OF IT.  YET
NO INSPECTOR NOR ANYONE ELSE WAS CALLED BY THE RAILROAD TO GIVE
TESTIMONY ON THE CONDITION OF THE PIN LIFTER IMMEDIATELY AFTER THE
ACCIDENT.  FN2  UNDER THESE CIRCUMSTANCES, REASONABLE JURORS ARE NOT TO
BE DENIED THE RIGHT TO MAKE INFERENCES WHICH OTHER REASONABLE PEOPLE
WOULD MAKE:  THAT STOGNER TRIED IN THE USUAL WAY TO COUPLE THE CARS;
THAT HIS EFFORTS WERE UNSUCCESSFUL; AND THAT HE WAS THEREFORE COMPELLED
TO GO BETWEEN THE CARS TO EFFECT A COUPLING.  AND THEY COULD THEREFORE
HAVE CONCLUDED THAT THE PIN LIFTER WAS DEFECTIVE.  THE JURY'S FINDING
OF THIS FACT SHOULD NOT HAVE BEEN DISTURBED. 

FN1  AMENDMENT VII:  "IN SUITS AT COMMON LAW, WHERE THE VALUE IN
CONTROVERSY SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY
SHALL BE PRESERVED, AND NO FACT TRIED BY A JURY, SHALL BE OTHERWISE RE
EXAMINED IN ANY COURT OF THE UNITED STATES, THAN ACCORDING TO THE RULES
OF THE COMMON LAW." 

FN2  CF. RIDGE V. NORFOLK SOUTHERN R. CO., 167 N.C. 510, 521, 83 S.E.
762; KIRBY V. TALLMADGE, 160 U.S. 379, 383; INTERSTATE CIRCUIT V.
UNITED STATES, 306 U.S. 208, 225-226. 

MR. JUSTICE REED, MR. JUSTICE DOUGLAS, AND MR. JUSTICE MURPHY JOIN IN
THIS DISSENT. 
..END :




















U.S. V. BETHLEHEM STEEL CORP., 315 U.S. 289 


NO. 8.  ARGUED DECEMBER 9, 1941.  - DECIDED FEBRUARY 16, 1942.  - 113
F.2D 301, AFFIRMED. 


1.  CONTRACTS MADE IN THE EMERGENCY OF WAR BETWEEN THE FLEET
CORPORATION AND A SHIPBUILDING COMPANY, FOR THE CONSTRUCTION OF SHIPS
FOR THE UNITED STATES, PROVIDED THAT THE PRICE TO BE PAID THE BUILDER
SHOULD INCLUDE THE ACTUAL COST OF THE SHIPS AND TWO ELEMENTS OF PROFIT,
(1) A FIXED AMOUNT CALCULATED ON AN AGREED ESTIMATE OF COST AND (2) A
"BONUS FOR SAVINGS," OF ONE-HALF THE AMOUNT BY WHICH THE ACTUAL COST
TURNED OUT LOWER THAN THE ESTIMATE; BUT NO OBLIGATION OF THE BUILDER TO
MAKE SPECIAL EFFORT TO EFFECT SUCH SAVINGS BY INCREASING ITS EFFICIENCY
WAS EXPRESSED IN THE CONTRACTS.  HELD: 

(1)  THERE IS NO GROUND TO IMPLY SUCH AN OBLIGATION.  P. 297. 

(2)  THE SAVINGS CLAUSE WAS A NON-SEVERABLE PART OF THE CONTRACT.  P.
298. 

2.  WHETHER A NUMBER OF PROMISES CONSTITUTE ONE CONTRACT OR MORE THAN
ONE IS TO BE DETERMINED BY INQUIRING WHETHER THE PARTIES ASSENTED TO
ALL THE PROMISES AS A WHOLE, SO THAT THERE WOULD HAVE BEEN NO BARGAIN
WHATEVER IF ANY PROMISE OR SET OF PROMISES WERE STRUCK OUT.  P. 298. 

3.  WITH RESPECT TO CONTRACTS FOR THE BUILDING OF SHIPS, ENTERED INTO
BY THE FLEET CORPORATION, ON BEHALF OF THE GOVERNMENT, AND A
SHIPBUILDING COMPANY WHILE THE COUNTRY WAS AT WAR, AND WHICH NETTED THE
COMPANY A VERY LARGE PROFIT PARTLY BY REASON OF THE CLAUSE GRANTING IT
THE RIGHT TO ONE-HALF OF THE AMOUNTS BY WHICH THE COST OF CONSTRUCTION
SHOULD BE LOWER THAN THE LIBERAL ESTIMATE PROVIDED BY THE CONTRACTS,
HELD: 

(1)  THE GOVERNMENT'S PRESENT CLAIM THAT IN THE NEGOTIATIONS THE
OFFICIALS ACTING FOR THE FLEET CORPORATION WERE SUBJECTED TO PRESSURE
AMOUNTING TO DURESS BY THE REPRESENTATIVES OF THE COMPANY, SO THAT THEY
ACCEPTED THE PRICE STIPULATIONS AGAINST THEIR WILL, IS WITHOUT SUPPORT
IN THE EVIDENCE.  P. 300. 

(2)  THE CIRCUMSTANCES THAT THE GOVERNMENT STOOD IN GREAT NEED OF THE
SHIPS AND THAT IT WAS OBLIGED TO RELY UPON THE COMPANY'S CAPACITY TO
PRODUCE THEM, COULD NOT HAVE COERCED THE FLEET CORPORATION'S
REPRESENTATIVES TO MAKE THE CONTRACTS, SINCE THE FLEET CORPORATION
COULD HAVE COMPELLED THE SHIPBUILDING COMPANY TO UNDERTAKE THE WORK AT
A PRICE SET BY THE PRESIDENT, WITH THE BURDEN OF GOING TO COURT IF IT
CONSIDERED THE COMPENSATION UNREASONABLY LOW; AND SINCE THE FLEET
CORPORATION HAD THE POWER TO COMMANDEER THE SHIPBUILDING COMPANY'S
PLANTS AND FACILITIES, IN ACCORDANCE WITH AUTHORITY DELEGATED BY THE
PRESIDENT PURSUANT TO THE ACTS OF CONGRESS; AND IT IS NOT TO BE ASSUMED
THAT THE COMPANY OR ITS TRAINED ORGANIZATION WOULD HAVE BEEN UNWILLING
TO SERVE THE GOVERNMENT IN THE PLANTS IF THE POWER TO TAKE THEM OVER
WERE EXERCISED.  P. 303. 

(3)  UNDER ITS POWERS TO RAISE AND SUPPORT ARMIES, TO PROVIDE AND
MAINTAIN A NAVY, AND TO MAKE ALL LAWS NECESSARY AND PROPER TO CARRY
THESE POWERS INTO EXECUTION, CONGRESS HAS AUTHORITY TO DRAFT BUSINESS
ORGANIZATIONS TO SUPPORT THE FIGHTING MEN IN WAR.  P. 305. 

4.  A POLICY OF GRANTING THE MEASURES OF PROFITS COMMON AT THE TIME,
ADOPTED BY THE FLEET CORPORATION WHEN LETTING CONTRACTS FOR THE
CONSTRUCTION OF SHIPS UNDER AUTHORITY DELEGATED BY THE PRESIDENT IN
ACCORDANCE WITH AN ACT OF CONGRESS, IS NOT SUBJECT TO BE IN EFFECT
NULLIFIED BY THE COURTS BY REFUSALS TO ENFORCE SUCH CONTRACTS ON THE
GROUND THAT THE PROFITS GRANTED ARE TOO HIGH.  P. 308. 

UNITED STATES V. BETHLEHEM STEEL CORPORATION ET AL.* 

*TOGETHER WITH NO. 9, UNITED STATES SHIPPING BOARD MERCHANT FLEET
CORPORATION V. BETHLEHEM SHIPBUILDING CORPORATION, LTD., ALSO ON WRIT
OF CERTIORARI, 311 U.S. 632, TO THE CIRCUIT COURT OF APPEALS FOR THE
THIRD CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 311 U.S. 632, TO REVIEW JUDGMENTS AFFIRMING TWO JUDGMENTS
OF THE DISTRICT COURT.  SEE 23 F.SUPP.  676; 26 ID. 259. 

NO. 8 WAS A SUIT IN EQUITY BROUGHT BY THE UNITED STATES AGAINST
BETHLEHEM STEEL CORPORATION, BETHLEHEM SHIPBUILDING CORPORATION ET AL.,
FOR AN ACCOUNTING AND TO RECOVER SUMS PAID UNDER CONTRACTS FOR
CONSTRUCTION OF SHIPS.  THE DISTRICT COURT DISMISSED THE BILL. 

IN NO. 9, WHICH WAS AN ACTION AT LAW BY THE BETHLEHEM SHIPBUILDING
CORPORATION AGAINST THE FLEET CORPORATION, THE FORMER RECOVERED A
BALANCE FOUND DUE UNDER "BONUS FOR SAVINGS" CLAUSES IN THE CONTRACTS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES ARISE FROM A DISPUTE BETWEEN BETHLEHEM SHIPBUILDING
CORPORATION, LTD., AND THE GOVERNMENT ABOUT THE AMOUNT OF PROFITS
CLAIMED BY BETHLEHEM UNDER THIRTEEN WAR-TIME CONTRACTS FOR BUILDING
SHIPS.  THE CONTRACTS WERE NEGOTIATED AND EXECUTED IN 1917 AND 1918,
WHEN GERMANY'S DESTRUCTIVE WARFARE AGAINST OUR OCEAN SHIPPING ESSENTIAL
TO THE SUCCESSFUL PROSECUTION OF THE WAR MADE IT NECESSARY FOR THE
UNITED STATES TO BUILD THE GREATEST POSSIBLE NUMBER OF SHIPS IN THE
SHORTEST POSSIBLE TIME.  THEY ARE TYPICAL PRODUCTS OF A SYSTEM OF
PROCUREMENT HEAVILY RELIED UPON BY THE UNITED STATES SHIPPING BOARD
EMERGENCY FLEET CORPORATION AND OTHER GOVERNMENT PURCHASING AGENCIES AT
THE TIME. 

ON JUNE 15, 1917, CONGRESS GAVE TO THE PRESIDENT SWEEPING WAR POWERS,
40 STAT. 182, INCLUDING (1) THE POWER TO COMMANDEER SHIPBUILDING PLANTS
AND FACILITIES, (2) THE POWER TO PURCHASE SHIPS AT WHAT HE DEEMED A
REASONABLE PRICE WITH A PROVISION FOR SUBSEQUENT REVISION BY THE COURTS
IN THE EVENT THE SELLER REGARDED THE PRICE SET AS UNFAIR, AND (3) THE
POWER TO PURCHASE OR CONTRACT FOR THE BUILDING OF SHIPS AT PRICES TO BE
ESTABLISHED BY NEGOTIATION.  ACTING UNDER AUTHORITY DELEGATED TO IT BY
THE PRESIDENT WITH CONGRESSIONAL APPROVAL, THE FLEET CORPORATION
DECLINED TO SEEK UTILIZATION OF THE FIRST AND SECOND METHODS BUT CHOSE,
UNDER THE THIRD ALTERNATIVE, TO MAKE PURCHASES THROUGH ORDINARY
BUSINESS BARGAINING. 

THE "ACTUAL COST" TO BETHLEHEM OF BUILDING THE SHIPS OVER WHICH THIS
DISPUTE ARISES WAS ABOUT $109,000,000.  THE GENEROUSLY INCLUSIVE
FORMULA  FN1  FOR DETERMINING "ACTUAL COST," NOT CHALLENGED BY THE
GOVERNMENT HERE, WAS NOT PECULIAR TO THESE CONTRACTS.  IT WAS BASED ON
THE STANDARD FORMULA USED BY THE FLEET CORPORATION IN ITS CONTRACTS
WITH OTHER SHIPBUILDERS.  AND, AS IN PRACTICALLY ALL CONTRACTS OF THIS
TYPE, THERE WAS NO RISK OF LOSS.  FN2  THE TOTAL PROFITS CLAIMED UNDER
THE CONTRACTS BY BETHLEHEM, AND ALLOWED BY BOTH COURTS BELOW, WERE
ABOUT $24,000,000 FN3  OR A LITTLE MORE THAN 22% OF THE COMPUTED COST. 
FN4  THIS FIGURE OF $24,000,000 DOES NOT INCLUDE SUCH PROFITS AS MAY
HAVE BEEN MADE BY BETHLEHEM STEEL COMPANY, BETHLEHEM'S PARENT, WHICH
SOLD IT AT THE MAXIMUM PRICES ESTABLISHED BY THE WAR INDUSTRIES BOARD,
43,000 TONS OF STEEL USED IN THESE SHIPS.  FN5  THE PERCENTAGE OF
PROFITS IN RELATION TO THE ACTUAL INVESTMENT AND WORKING CAPITAL
DEVOTED BY BETHLEHEM TO THE BUILDING OF THE SHIPS WAS NOT FOUND BY
EITHER OF THE COURTS BELOW.  FN6 

IN NO. 8, THE GOVERNMENT FILED A BILL IN EQUITY AGAINST BETHLEHEM AND
OTHERS.  THE BILL ALLEGED THAT THE GOVERNMENT HAD BEEN INDUCED TO ENTER
INTO THE CONTRACTS BY FRAUDULENT REPRESENTATIONS OF BETHLEHEM'S AGENTS;
AND AS AN INDEPENDENT GROUND FOR RELIEF, THAT IT HAD BEEN THE DUTY OF
BETHLEHEM TO PERFORM THE CONTRACTS FAIRLY, HONESTLY, AND ECONOMICALLY
"IN THE SHORTEST PRACTICABLE TIME" FOR NO MORE THAN "A FAIR AND
REASONABLE PROFIT" AND THAT ANY PROVISIONS IN THE CONTRACT FOR PAYMENT
OF MORE ARE "VOID AND UNENFORCEABLE."  THE PRAYER WAS FOR AN ACCOUNTING
AND A DECREE REQUIRING BETHLEHEM TO REFUND ALL AMOUNTS PREVIOUSLY PAID
TO IT BY THE GOVERNMENT IN EXCESS OF WHAT THE COURT SHOULD FIND TO BE
JUST AND REASONABLE COMPENSATION FOR BUILDING THE SHIPS.  BETHLEHEM
FILED AN ANSWER AND A COUNTERCLAIM FOR DAMAGES BASED ON ALLEGED BREACH
OF CONTRACT BY THE FLEET CORPORATION. 

IN NO. 9, BETHLEHEM BROUGHT SUIT AT LAW AGAINST THE FLEET
CORPORATION, CLAIMING DAMAGES FOR BREACH OF THE SAME CONTRACTS.  IN AN
AFFIDAVIT OF DEFENSE AND COUNTERCLAIM THE FLEET CORPORATION REPEATED
THE ALLEGATIONS MADE BY THE GOVERNMENT IN NO. 8 AND SOUGHT THE SAME
RELIEF. 

THE TWO ACTIONS WERE JOINTLY REFERRED BY THE DISTRICT JUDGE TO A
MASTER WHO HELD HEARINGS AND MADE FINDINGS.  IN NO. 8, THE MASTER
RECOMMENDED THAT THE GOVERNMENT'S BILL BE DISMISSED, AND ON THE
AUTHORITY OF NASSAU SMELTING WORKS V. UNITED STATES, 266 U.S. 101,
FURTHER RECOMMENDED THE BETHLEHEM'S COUNTERCLAIM BE DISMISSED FOR WANT
OF JURISDICTION, THE AMOUNT CLAIMED BEING IN EXCESS OF $10,000.  IN NO.
9, HE RECOMMENDED THAT JUDGMENT BE ENTERED FOR BETHLEHEM FOR $5,272,075
FN7 WITH INTEREST AT 2% FROM SEPTEMBER 1, 1922.  THE DISTRICT JUDGE
DECLINED TO ALLOW ANY INTEREST, APPLYING THE LAW OF PENNSYLVANIA AS HE
THOUGHT OUR DECISION IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64,
REQUIRED.  IN ALL OTHER RESPECTS HE FOLLOWED THE MASTER'S
RECOMMENDATIONS AND RENDERED JUDGMENT ACCORDINGLY.  23 F.SUPP.  676; 26
ID. 259.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  113 F.2D 301.  ON
APPLICATION OF THE UNITED STATES AND THE FLEET CORPORATION, WE GRANTED
CERTIORARI.  311 U.S. 632. 

AS THE CASE REACHES US, THE CONTROVERSY REVOLVES PRIMARILY AROUND THE
BETHLEHEM.  IN ALL THE CONTRACTS, THAT SECTION CONTAINS SUBSTANTIALLY
THE FOLLOWING PROVISIONS: 

"THE PRICE TO BE PAID FOR EACH VESSEL TO BE CONSTRUCTED AND FURNISHED
IN ACCORDANCE WITH THE TERMS OF THIS CONTRACT  ...  SHALL BE THE ACTUAL
COST, PLUS THE DEFINITE SUM FOR PROFIT HEREINAFTER IN THIS ARTICLE
PROVIDED FOR, BASED UPON AN ESTIMATED ACTUAL COST TO THE CONTRACTOR ...
SHOULD THE ACTUAL COST BE LESS THAN THE ESTIMATED  ...  COST  ...  THE
CONTRACTOR SHALL BE ALLOWED AS PROFIT ON EACH VESSEL IN ADDITION TO
SAID FIXED SUM FOR PROFIT  ...  ONE-HALF THE AMOUNT BY WHICH SUCH
ACTUAL COST OF EACH VESSEL FALLS SHORT OF THE ESTIMATED COST  ...  " 

THUS, A HIGH ESTIMATED COST WOULD INCREASE THE PROBABILITY OF
"SAVINGS" TO BE DIVIDED BETWEEN BETHLEHEM AND THE GOVERNMENT.  AND THE
MORE THE ESTIMATED COST EXCEEDED ACTUAL COST, THE GREATER WOULD BE
BETHLEHEM'S SHARE.  IT CAN BE SEEN, THEREFORE, THAT THE ESTIMATED COST
AGREED UPON BY THE PARTIES IS A PIVOTAL FIGURE. 

                                  I 

THE GOVERNMENT CHARGED BETHLEHEM WITH FRAUD IN SUBMITTING ESTIMATED
COST FIGURES WHICH WERE ADOPTED IN THE CONTRACTS.  IT WAS ALLEGED THAT
BETHLEHEM'S AGENTS MADE TWO FALSE REPRESENTATIONS: (1) THAT IT WAS
IMPRACTICABLE TO ESTIMATE CLOSELY WHAT THE COST WOULD BE AND (2) THAT
THE ESTIMATES BETHLEHEM SUBMITTED, AND WHICH THE FLEET CORPORATION
ACCEPTED, WERE FAIR AND REASONABLE UNDER THE CIRCUMSTANCES.  THE MASTER
FOUND THAT THERE WAS NO EVIDENCE TO SUPPORT THIS CHARGE OF FRAUD.  THE
DISTRICT JUDGE APPROVED THIS FINDING AS DID THE CIRCUIT COURT OF
APPEALS, WHICH SAID THAT IT HAD "CAREFULLY CONSIDERED THE RECORD IN THE
LIGHT OF THIS CONTENTION (OF FRAUD)" AND CONCLUDED THAT "THE ESTIMATES
SUBMITTED BY BETHLEHEM AND PREPARED FOR IT BY ITS REPRESENTATIVE BROWN
WERE FAIRLY AND HONESTLY MADE AND AS ACCURATE AS COULD BE EXPECTED
UNDER THE UNCERTAIN CONDITIONS THEN PREVAILING."  AND IN THIS COURT THE
PETITIONER ACCEPTS THESE FINDINGS.  THEREFORE, IN CONSIDERING OTHER
ATTACKS UPON BETHLEHEM'S RIGHT TO RECOVER, WE MUST DO SO ON THE
ASSUMPTION THAT THERE WAS NO FRAUD IN BETHLEHEM'S NEGOTIATIONS WITH THE
GOVERNMENT. 

               II 

THE GOVERNMENT CONTENDS THAT EVEN IN THE ABSENCE OF FRAUD, BETHLEHEM
IS ENTITLED TO NOTHING BY VIRTUE OF THE HALF-SAVINGS CLAUSES. 

ONE ARGUMENT IS THAT THE CONTRACTS GAVE BETHLEHEM THE BENEFITS OF
PARTICIPATING IN THE SAVINGS ONLY IF BETHLEHEM BY SPECIAL EFFORTS
INCREASED ITS EFFICIENCY AND BROUGHT ACTUAL COSTS BELOW THE ESTIMATES
AGREED TO IN THE CONTRACTS. 

NEITHER THE SPECIFIC LANGUAGE OF THE HALF-SAVINGS PROVISION NOR ITS
CONTEXT SUPPORTS THIS CONTENTION.  ON ITS FACE, THE PROVISION CONTAINS
AN UNCONDITIONAL PROMISE TO PAY BETHLEHEM ONE-HALF OF THE DIFFERENCE
BETWEEN THE ACTUAL AND ESTIMATED COST OF THE SHIPS IN QUESTION.  THAT
SUCH A METHOD OF COMPUTATION WOULD TEND TO DISCOURAGE CARELESS
EXPENDITURES AND ENCOURAGE VIGOROUS ATTEMPTS AT REALIZING ECONOMIES IN
BUILDING THE SHIPS IS HARDLY DEBATABLE.  BUT THE HALF-SAVINGS CLAUSE
DOES NOT IMPOSE ANY POSITIVE OBLIGATIONS UPON THE BUILDER.  THE MASTER
FOUND, UPON CONSIDERATION BOTH OF THE TERMS OF THE CONTRACTS AND
TESTIMONY ON THE UNDERSTANDING OF THE PARTIES, THAT A SHOWING OF
SAVINGS, WITHOUT MORE, OBLIGATED THE GOVERNMENT TO SHARE THEM WITH
BETHLEHEM.  IT CANNOT BE MAINTAINED THAT THIS FINDING, ACCEPTED BY BOTH
COURTS BELOW, IS WITHOUT AMPLE SUPPORT. 

NOTHING IN THE NEGOTIATIONS BETWEEN THE PARTIES AS REVEALED IN THE
RECORD INDICATES THAT THEY HAD A CONTRARY UNDERSTANDING OF THE
CONTRACTS.  BETHLEHEM HELD OUT AGAINST THE FLEET CORPORATION'S EARLY
INSISTENCE UPON LUMP SUM CONTRACTS.  IT CONTINUALLY ASSERTED THAT
UNCERTAINTIES ABOUT FINAL COST DUE TO RAPIDLY RISING PRICES WOULD
REQUIRE IT TO PROTECT ITSELF BY INSISTING UPON A FIGURE TOO HIGH FOR
THE FLEET CORPORATION'S ACCEPTANCE AND THEREFORE ITSELF PROPOSED THE
COST-PLUS-FIXED-FEE-PLUS-HALF-SAVINGS METHOD OF DETERMINING
COMPENSATION.  WHILE THERE SEEMS TO HAVE BEEN RECOGNITION THAT THIS
METHOD MIGHT INDUCE GREATER EFFORTS AT EFFICIENCY, WHICH WOULD BE TO
THE ADVANTAGE OF BOTH PARTIES, THERE IS NOT THE SMALLEST HINT THAT
EITHER BETHLEHEM OR THE GOVERNMENT REGARDED THE SUBSTITUTION OF THIS
METHOD AS IMPOSING ANY POSITIVE OBLIGATIONS UPON BETHLEHEM IN ADDITION
TO THOSE IT WOULD HAVE HAD UNDER LUMP SUM CONTRACTS. 

IN THE ALTERNATIVE, THE GOVERNMENT URGES THAT THE HALFSAVINGS CLAUSES
ARE SEVERABLE, AND THAT IF THE CONTRACTS IMPOSED UPON BETHLEHEM NO
OBLIGATION OF SPECIAL EFFORT TO EFFECT SAVINGS, THESE CLAUSES WERE
UNSUPPORTED BY CONSIDERATION, AND ARE THEREFORE UNENFORCEABLE.  THE
MASTER AND THE COURTS BELOW, HOWEVER, TREATED THESE CLAUSES AS NON
SEVERABLE; TO DO OTHERWISE WOULD CALL FOR DEPARTURE FROM ACCEPTED
PRINCIPLES OF THE LAW OF CONTRACT.  WHETHER A NUMBER OF PROMISES
CONSTITUTE ONE CONTRACT OR MORE THAN ONE IS TO BE DETERMINED BY
INQUIRING "WHETHER THE PARTIES ASSENTED TO ALL THE PROMISES AS A SINGLE
WHOLE, SO THAT THERE WOULD HAVE BEEN NO BARGAIN WHATEVER, IF ANY
PROMISE OR SET OF PROMISES WERE STRUCK OUT."  WILLISTON ON CONTRACTS
(REV. ED.)  SEC.  863 AND CASES THERE CITED.  THE RECORD MAKES IT CLEAR
THAT EACH OF THE CONTRACTS HERE WAS ASSENTED TO AS A SINGLE WHOLE, AND
THAT CONSUMMATION OF A BARGAIN BETWEEN THE PARTIES DEPENDED UPON
INCLUSION OF THE HALF-SAVINGS CLAUSE.  FURTHERMORE, WE KNOW OF NO
FEDERAL OR STATE STATUTE OR ESTABLISHED RULE OF LAW IN ANY JURISDICTION
INCONSISTENT WITH THE ELEMENTARY PROPOSITION THAT A PROMISE TO BUILD
SHIPS IS GOOD CONSIDERATION FOR A PROMISE TO PAY A SUM OF MONEY WHETHER
FIXED IN AMOUNT OR DEPENDING UPON THE RELATIONSHIP BETWEEN ACTUAL AND
ESTIMATED COST.  FN8  CF. DAYTON AIRPLANE CO. V. UNITED STATES, 21 F.2D
673, 682-683. 

                 III 

THE GOVERNMENT FURTHER ARGUES THAT IF THE HALF-SAVINGS CLAUSES MUST
BE TAKEN AS PERMITTING BETHLEHEM TO PARTICIPATE IN SAVINGS HOWEVER
CAUSED, THE CONTRACTS ARE INVALID BECAUSE UNCONSCIONABLE.  WITHOUT
SPECIFYING THAT IT RELIES ON THE LAW OF ANY PARTICULAR JURISDICTION,
THE PETITIONER RESTS ITS ARGUMENT ON AN ASSERTED GENERAL DOCTRINE OF
UNCONSCIONABILITY AT COMMON LAW.  SINCE THERE IS NO GOVERNING
CONSTITUTIONAL OR FEDERAL STATUTORY PROVISION, IF THESE WERE CONTRACTS
BETWEEN PRIVATE INDIVIDUALS, THE LAW OF SOME LOCALITY WOULD BE
CONTROLLING.  ERIE R. CO. V. TOMPKINS, SUPRA.  WHETHER THE SAME RULE
WOULD APPLY TO GOVERNMENT CONTRACTS IN GENERAL OR TO THE CONTRACTS OF
THE FLEET CORPORATION  FN9  IN PARTICULAR, WE NEED NOT DECIDE.  NOR,
ASSUMING THE APPLICABILITY OF THE TOMPKINS CASE TO THE CONTRACTS BEFORE
US, WOULD WE HAVE TO DETERMINE WHETHER THE LAW OF THE DISTRICT OF
COLUMBIA OR OF SOME PARTICULAR STATE IS DECISIVE.  FOR, IN INVOKING THE
ASSERTED DOCTRINE OF UNCONSCIONABILITY CLAIMED TO BE APPLICABLE HERE,
THE GOVERNMENT RELIES ENTIRELY UPON THE ALLEGED EXISTENCE OF TWO
ELEMENTS:  DURESS, AND PROFITS GROSSLY IN EXCESS OF CUSTOMARY
STANDARDS.  AND FOR REASONS WE SHALL SET OUT, NEITHER OF THESE TWO
ELEMENTS EXISTS HERE. 

DURESS.  THE WORD DURESS IMPLIES FEEBLENESS ON ONE SIDE, OVERPOWERING
STRENGTH ON THE OTHER.  HERE IT IS SUGGESTED THAT FEEBLENESS IS ON THE
SIDE OF THE GOVERNMENT OF THE UNITED STATES, OVERPOWERING STRENGTH ON
THE SIDE OF A SINGLE PRIVATE CORPORATION.  ALTHOUGH THERE ARE MANY
CASES IN WHICH AN INDIVIDUAL HAS CLAIMED TO BE A VICTIM OF DURESS IN
DEALINGS WITH GOVERNMENT, E.G., UNION PACIFIC R. CO. V. PUBLIC SERVICE
COMM'N, 248 U.S. 67, THIS, SO FAR AS WE KNOW, IS THE FIRST INSTANCE IN
WHICH GOVERNMENT HAS CLAIMED TO BE A VICTIM OF DURESS IN DEALINGS WITH
AN INDIVIDUAL.    THE ARGUMENT BY WHICH THE PETITIONER SEEKS TO
ESTABLISH THAT THE CONTRACTS WERE MADE UNDER DURESS IS ESSENTIALLY
THIS:  GERMANY'S SUBMARINE WARFARE MADE IT IMPERATIVE THAT THE
GOVERNMENT SECURE THE GREATEST POSSIBLE NUMBER OF SHIPS IN THE SHORTEST
POSSIBLE TIME; THERE WAS A SCARCITY OF SHIPS AND SHIPBUILDING
FACILITIES IN THE UNITED STATES; BETHLEHEM, THE LARGEST SHIPBUILDER IN
THE WORLD, NOT ONLY HAD SHIPBUILDING FACILITIES AVAILABLE, BUT ALSO A
TRAINED ORGANIZATION; AT A TIME WHEN BETHLEHEM'S FACILITIES AND TRAINED
ORGANIZATION WERE VITAL TO THE PROSECUTION OF THE WAR, IT DECLINED TO
ACCEPT TERMS PROPOSED BY THE GOVERNMENT, BUT INSISTED UPON PRICES WHICH
SOME OF THE GOVERNMENT'S REPRESENTATIVES THOUGHT TOO HIGH; ALTHOUGH
CONGRESS HAD AUTHORIZED THE EXECUTIVE TO COMMANDEER SHIPBUILDING
FACILITIES IF NECESSARY, BETHLEHEM'S ORGANIZATION WAS ALSO NEEDED AND
THE GOVERNMENT WAS WITHOUT POWER TO COMPEL PERFORMANCE BY AN UNWILLING
ORGANIZATION; THE GOVERNMENT THEREFORE HAD TO ACCEPT CONTRACTS ON
WHATEVER TERMS BETHLEHEM PROPOSED OR, DOING WITHOUT THE SHIPS WHICH
BETHLEHEM COULD PRODUCE, RUN THE RISK OF MILITARY DEFEAT. 

TWO BASIC PROPOSITIONS UNDERLIE THIS ARGUMENT:  (1) THE GOVERNMENT'S
REPRESENTATIVES INVOLUNTARILY ACCEPTED BETHLEHEM'S TERMS.  (2) THE
CIRCUMSTANCES PERMITTED THE GOVERNMENT NO OTHER ALTERNATIVE. 

UPON REVIEWING THE NEGOTIATIONS BETWEEN THE REPRESENTATIVES OF THE
GOVERNMENT AND THE REPRESENTATIVES OF BETHLEHEM, WE CANNOT FIND SUPPORT
FOR THE FIRST PROPOSITION.  THE MASTER FOUND, AND THE COURTS BELOW
AGREED, THAT "THE CONTRACTS RESULTED FROM NEGOTIATIONS IN WHICH BOTH
PARTIES WERE REPRESENTED BY INTELLIGENT, WELL INFORMED AND EXPERIENCED
OFFICERS WHOSE SOLE OBJECT WAS TO MAKE THE BEST TRADE POSSIBLE, UNDER
CONDITIONS WHICH INCLUDED THE UNCERTAINTIES OF WAR-TIME CONTINGENCIES,
THE RESULTS FROM WHICH WERE NOT AND COULD NOT HAVE BEEN KNOWN AT THE
TIME THE CONTRACTS WERE MADE."  TWO OF THE THREE PRINCIPAL NEGOTIATORS
FOR THE FLEET CORPORATION HAVE TESTIFIED IN THE PROCEEDINGS BEFORE THE
MASTER.  IT IS ABUNDANTLY CLEAR FROM THEIR TESTIMONY THAT, DURING THE
COURSE OF THE NEGOTIATIONS, THEY DID NOT CONSIDER THEMSELVES COMPELLED
TO ACCEPT WHATEVER TERMS THE OTHER SIDE PROPOSED.  IN THE DISPOSITION
OF THE TWO MAIN DIFFERENCES BETWEEN THE NEGOTIATORS, THERE IS NO
EVIDENCE OF THAT STATE OF OVERCOME WILL WHICH IS THE MAJOR PREMISE OF
THE PETITIONER'S ARGUMENT OF DURESS.  CF. FRENCH V. SHOEMAKER, 14
WALL.  314, 332. 

ONE OF THE DIFFERENCES WAS SETTLED BY THE GOVERNMENT'S ABANDONMENT OF
ITS EARLIER INSISTENCE UPON A LUMP SUM ARRANGEMENT TOGETHER WITH A
GUARANTEED DATE OF DELIVERY.  IN VIEW OF THE RISING PRICES AND
UNPREDICTABLE LABOR SUPPLY OF THE TIME, BETHLEHEM'S RELUCTANCE TO ENTER
INTO CONTRACTS ON SUCH TERMS DOES NOT SEEM UNREASONABLE.  FN10  AND IF
THE GOVERNMENT'S ABANDONMENT OF ITS POSITION IS TO BE REGARDED AS
EVIDENCE OF COMPULSION, WE SHOULD HAVE TO FIND COMPULSION IN EVERY
CONTRACT IN WHICH ONE OF THE PARTIES MAKES A CONCESSION TO A DEMAND,
HOWEVER REASONABLE, OF THE OTHER SIDE. 

THE OTHER MAJOR DIFFERENCE BETWEEN THE NEGOTIATORS WAS ON THE MATTER
OF PRICE.  THERE IS EVIDENCE THAT SOME OF THE FLEET CORPORATION'S
REPRESENTATIVES CONSIDERED BETHLEHEM'S DEMANDS HIGH, BUT WE CANNOT
CONCLUDE THAT THE FIGURE FINALLY ACCEPTED BY THE FLEET CORPORATION WAS
ACCEPTED BECAUSE ITS REPRESENTATIVES FELT THEMSELVES POWERLESS TO
REFUSE.  ON THE CONTRARY, BETHLEHEM BY LETTER VOLUNTARILY OFFERED TO
ACCEPT CONTRACTS ON TERMS TO BE FIXED BY THE FLEET CORPORATION'S
GENERAL MANAGER.  THIS OFFER WAS REJECTED, ONE OF THE FLEET
CORPORATION'S NEGOTIATORS TESTIFYING THAT IT PREFERRED TO MAKE
CONTRACTS RATHER THAN ASSUME THE ATTITUDE OF DICTATING TERMS. 
MOREOVER, THE GENERAL MANAGER OF THE FLEET CORPORATION, IN WHOM FINAL
AUTHORITY WAS VESTED AND WHO APPROVED THESE CONTRACTS, WAS OF THE
OPINION THAT HIGH ESTIMATED COST FIGURES WOULD BE ADVANTAGEOUS TO THE
GOVERNMENT BECAUSE "CARE MUST BE EXERCISED THAT THEY BE NOT PLACED AT
TOO LOW A FIGURE, FOR IF THEY ARE, THE PROBABILITIES ARE THAT THE
CONTRACTOR WILL LOSE INTEREST IN KEEPING THE COST DOWN."  AND ONE OF
THE NEGOTIATORS FOR THE FLEET CORPORATION HAS GIVEN TESTIMONY THAT HE
WAS NOT SO MUCH CONCERNED WITH COST AS WITH SPEED OF PRODUCTION, SINCE
"LEGISLATION WAS ALREADY IN THE OFFING IN THE FORM OF WAR PROFIT TAXES
...  TO TAKE CARE OF EXTREME CASES."  WE MUST THEREFORE CONCLUDE THAT
THE NEGOTIATIONS DO NOT SHOW THAT BETHLEHEM FORCED THE GOVERNMENT'S
REPRESENTATIVES TO ACCEPT CONTRACTS AGAINST THEIR WILL. 

IF THE NEGOTIATIONS DO NOT ESTABLISH DURESS, THE GOVERNMENT FINDS IT
IN THE CIRCUMSTANCES THEMSELVES.  THE PETITIONER CONCEDES THAT THE
GOVERNMENT COULD HAVE COMMANDEERED BETHLEHEM'S PLANTS, BUT IT CONTENDS
THAT, IF THE PLANTS HAD BEEN COMMANDEERED, BETHLEHEM'S ORGANIZATION
WOULD HAVE BEEN UNWILLING TO SERVE THE GOVERNMENT IN THEM.  HEAVY
RELIANCE IS PLACED ON AN OBSERVATION IN THE MASTER'S REPORT THAT "THE
GOVERNMENT DID NOT HAVE POWER TO COMPEL PERFORMANCE BY AN UNWILLING
ORGANIZATION."  WE SHALL LATER CONSIDER THE ALLEGED LACK OF POWER.  WE
NOW POINT OUT THAT THE ALLEGED UNWILLINGNESS IS AN ASSUMPTION
UNSUPPORTED BY FINDINGS OR EVIDENCE.  SINCE THE POSSIBILITY OF
COMMANDEERING APPEARS NOT EVEN TO HAVE BEEN SUGGESTED TO BETHLEHEM, WE
HAVE NO BASIS FOR KNOWING WHAT ITS REACTION WOULD HAVE BEEN.  WE CANNOT
ASSUME THAT, IF THE NEGOTIATIONS FAILED TO PRODUCE CONTRACTS ACCEPTABLE
TO BOTH SIDES, BETHLEHEM WOULD HAVE REFUSED TO CONTRIBUTE TO THE WAR
EFFORT EXCEPT UNDER LEGAL COMPULSION.  WE CANNOT LIGHTLY IMPUTE TO
BETHLEHEM'S WHOLE ORGANIZATION, COMPOSED AS IT WAS OF HUNDREDS OF
PEOPLE, SUCH AN ATTITUDE OF UNPATRIOTIC RECALCITRANCE IN THE FACE OF
NATIONAL PERIL. 

BUT EVEN IF WE WERE TO ASSUME, AS WE DO NOT, AN INITIAL ATTITUDE OF
UNWILLINGNESS, WE DO NOT THINK THAT THE GOVERNMENT WAS ENTIRELY WITHOUT
MEANS OF OVERCOMING IT.  FOR, THE REPRESENTATIVES OF THE FLEET
CORPORATION, AN AGENT OF THE UNITED STATES, CAME TO BETHLEHEM ARMED
WITH BARGAINING POWERS TO WHICH THOSE OF NO ORDINARY PRIVATE
CORPORATION CAN BE COMPARED.  IF IT CHOSE TO, THE FLEET CORPORATION
COULD HAVE FOREGONE ALL NEGOTIATION OVER PRICE, COMPELLING BETHLEHEM TO
UNDERTAKE THE WORK AT A PRICE SET BY THE PRESIDENT, WITH THE BURDEN OF
GOING TO COURT IF IT CONSIDERED THE COMPENSATION UNREASONABLY LOW.  AND
THE POWER TO COMMANDEER BETHLEHEM'S ENTIRE PLANT AND FACILITIES, IN
ACCORDANCE WITH AUTHORITY SPECIFICALLY DELEGATED BY THE PRESIDENT,
PROVIDED THE FLEET CORPORATION WITH AN ALTERNATIVE BARGAINING WEAPON
DIFFICULT FOR ANY COMPANY TO RESIST. 

THE GOVERNMENT NEVERTHELESS URGES THAT THE CIRCUMSTANCES HERE ARE
ANALOGOUS TO THOSE UNDER WHICH COURTS OF ADMIRALTY HAVE HELD CONTRACTS
TO BE UNENFORCEABLE.  IN PARTICULAR, IT POINTS TO THE PRINCIPLE THAT
COURTS OF ADMIRALTY "WILL NOT TOLERATE THE DOCTRINE THAT A SALVOR CAN
TAKE THE ADVANTAGE OF HIS SITUATION, AND AVAIL HIMSELF OF THE
CALAMITIES OF OTHERS TO DRIVE A BARGAIN; NOR WILL THEY PERMIT THE
PERFORMANCE OF A PUBLIC DUTY TO BE TURNED INTO A TRAFFIC OF PROFIT." 
POST V. JONES, 19 HOW.  150, 160.  WE THINK THIS PRINCIPLE HAS NO REAL
RELEVANCE TO THE CASE BEFORE US. 

IN THE FIRST PLACE, IF THERE WAS A "TRAFFIC OF PROFIT" HERE, IT WAS
NOT THE UNANTICIPATED RESULT OF AN ACCIDENT AS IN THE SALVAGE CASES. 
WHEN CONGRESS AUTHORIZED THE PROCUREMENT OF SHIPS THROUGH ORDINARY
COMMERCIAL NEGOTIATIONS, IT MUST HAVE KNOWN THAT THE PURCHASES COULD
NOT BE MADE IN A MARKET OF OPEN COMPETITION, BECAUSE EXISTING
SHIPBUILDING FACILITIES WOULD BE OVERTAXED BY THE CONSTRUCTION
PROGRAM.  SEE DEPARTMENT OF COMMERCE, GOVERNMENT AID TO MERCHANT
SHIPPING (REV. ED. 1923) 433; HEARINGS BEFORE HOUSE COMMITTEE ON THE
MERCHANT MARINE AND FISHERIES ON H.R. 10500, 64TH CONG., 1ST SESS.,
PASSIM.  AND CONGRESS MUST HAVE ANTICIPATED THAT, IN THE CONTRACTS
AGREED UPON, PROFITS WOULD BE EXPECTED, AND THAT THE SELFINTEREST
INHERENT IN COMMERCIAL TRANSACTIONS WOULD MAKE ITSELF FELT.  THEREFORE,
IN SEEKING TO ESTABLISH DURESS FROM THE CIRCUMSTANCES IN WHICH THESE
CONTRACTS WERE MADE, THE GOVERNMENT IS RELYING ON THE IDENTICAL
CIRCUMSTANCES WHICH WERE IN EXISTENCE AT THE TIME CONGRESS CHOSE THE
POLICY OF AUTHORIZING PROCUREMENT OF SHIPS THROUGH COMMERCIAL
NEGOTIATION.  WE CANNOT NOW INVALIDATE CONTRACTS MADE PURSUANT TO A
CONGRESSIONALLY SELECTED POLICY, ON THE SOLE GROUND OF THE COERCIVE
EFFECT OF CIRCUMSTANCES WHICH CONGRESS CLEARLY CONTEMPLATED.  TO DO SO
WE SHOULD HAVE TO REPUDIATE LEGISLATIVE POWER EXERCISED IN PROPER
CONSTITUTIONAL SPHERE. 

IN THE SECOND PLACE, THE CAPTAIN OF A SHIP IN DISTRESS ON THE HIGH
SEAS WHO IS COMPLETELY AT THE MERCY OF HIS SALVOR CANNOT BE LIKENED TO
A SOVEREIGN POWER DEALING WITH AN INDIVIDUAL CONTRACTOR.  WE CANNOT
REGARD THE GOVERNMENT OF THE UNITED STATES AT WAR AS SO POWERLESS THAT
IT MUST SEEK THE ORGANIZATION OF A PRIVATE CORPORATION AS A HELPLESS
SUPPLIANT.  THE CONSTITUTION GRANTS TO CONGRESS POWER "TO RAISE AND
SUPPORT ARMIES," "TO PROVIDE AND MAINTAIN A NAVY," AND TO MAKE ALL LAWS
NECESSARY AND PROPER TO CARRY THESE POWERS INTO EXECUTION.  UNDER THIS
AUTHORITY CONGRESS CAN DRAFT MEN FOR BATTLE SERVICE.  SELECTIVE DRAFT
LAW CASES, 245 U.S. 366.  ITS POWER TO DRAFT BUSINESS ORGANIZATIONS TO
SUPPORT THE FIGHTING MEN WHO RISK THEIR LIVES CAN BE NO LESS. 

PROFITS.  THE GENERAL COMMON LAW RULE OF UNCONSCIONABILITY ON WHICH
THE PETITIONER RELIES IS SAID TO DENY ENFORCEMENT TO CONTRACTS WHEN THE
PROFITS PROVIDED FOR ARE GROSSLY IN EXCESS OF A STANDARD ESTABLISHED BY
COMMON PRACTICE.  WHETHER THERE IS SUCH A RULE, WHAT IS ITS SCOPE, AND
WHETHER IT IS PART OF THE BODY OF LAW GOVERNING THESE CONTRACTS, WE
NEED NOT DECIDE.  FOR, HIGH AS BETHLEHEM'S 22% PROFIT SEEMS TO US, WE
ARE COMPELLED TO ADMIT THAT SO FAR AS THE RECORD OR ANY OTHER SOURCE OF
WHICH WE CAN TAKE NOTICE DISCLOSES, IT IS NOT GROSSLY IN EXCESS OF THE
STANDARD ESTABLISHED BY COMMON PRACTICE IN THE FIELD IN WHICH CONGRESS
AUTHORIZED THE MAKING OF THESE CONTRACTS.  AND IN PARTICULAR, IT MAY BE
ADDED, THE MASTER FOUND THAT THE SHIPS BUILT BY BETHLEHEM COST THE
GOVERNMENT LESS THAN COMPARABLE SHIPS BUILT BY OTHER SHIPBUILDERS.  THE
GOVERNMENT MADE NO ATTEMPT TO ESTABLISH, NOR IS THERE ANY INDICATION IN
THE RECORD, THAT THE PROFITS REALIZED BY OTHER SHIPBUILDERS WERE ANY
LESS THAN BETHLEHEM'S. 

TO ESTABLISH A STANDARD OF CUSTOMARY PROFITS, THE PETITIONER POINTS
TO THE EXPERIENCE OF THE NAVY AND WAR DEPARTMENTS AND OTHER BRANCHES OF
THE GOVERNMENT IN CONNECTION WITH STRAIGHT COST-PLUS CONTRACTS. 
BECAUSE 10% WAS THE PROFIT SPECIFIED IN MANY SUCH CONTRACTS, THE
GOVERNMENT ASSERTS THAT IT IS AN APPROPRIATE FIGURE HERE, AND URGES
THAT THE PROFITS ON THESE CONTRACTS, TESTED BY SUCH A STANDARD, CANNOT
BE ALLOWED.  THE RELEVANCE OF EXPERIENCE WITH COST-PLUS CONTRACTS TO
THE CONTRACTS HERE IS NOT CLEAR.  THE SHIPPING BOARD DELIBERATELY CHOSE
TO AVOID COST-PLUS CONTRACTS WHERE POSSIBLE, HAVING FOUND THEM
UNSATISFACTORY IN PRACTICE.  MOREOVER, THE RECORD SHOWS THAT THE TOTAL
COST TO THE GOVERNMENT OF COMPARABLE SHIPS UNDER COST-PLUS CONTRACTS
WAS HIGHER THAN THE TOTAL COST OF THE SHIPS BETHLEHEM BUILT UNDER THE
CONTRACTS HERE IN QUESTION.  AND EXPERIENCE IN MANY FIELDS HAS
DEMONSTRATED THAT THE PERCENTAGE OF PROFIT ACTUALLY REALIZED UNDER COST
PLUS CONTRACTS IS LIKELY TO BE FAR MORE THAN THE PERCENTAGE SPECIFIED. 
AS STATED IN 1918 BY CHARLES E. HUGHES, LATER CHIEF JUSTICE, IN HIS
REPORT TO THE ATTORNEY GENERAL ON THE AIRCRAFT INDUSTRY, "CONTRACTS OF
THIS SORT LEAD TO WASTE, FOSTER ABUSES, AND IMPOSE AN ALMOST
INTOLERABLE BURDEN OF COST ACCOUNTING, IN ITSELF A HINDRANCE TO RAPID
PRODUCTION."  REPORT TO THE ATTORNEY GENERAL ON THE AIRCRAFT INQUIRY
(1918) 134.  SEE ALSO, EXPENDITURES IN THE WAR DEPARTMENT - CAMPS,
HOUSE REPORT NO. 816, 66TH CONG., 2D SESS., 49-53.  THE 10% WHICH THE
PETITIONER DERIVES BY REFERENCE TO THE COSTPLUS CONTRACTS OF CERTAIN
GOVERNMENTAL DEPARTMENTS CANNOT BE TAKEN AS A STANDARD OF COMMON
PRACTICE.  IT IS AN ILLUSORY FIGURE WITHOUT BASIS IN THE REALITIES OF
BUSINESS EXPERIENCE. 

IF PROFITS EARNED UNDER GOVERNMENT CONTRACTS IN GENERAL ARE TAKEN AS
THE STANDARD OF COMPARISON, THE 22% CLAIMED HERE IS OVERSHADOWED IN TOO
MANY INSTANCES FOR IT TO BE REGARDED AS EXTRAORDINARY.  THE HUGHES
REPORT REFERRED TO ABOVE, FOR EXAMPLE, POINTS OUT (PP. 136-146) THAT
MOST OF THE AIRPLANE PRODUCTION DURING THE LAST WAR WAS UNDER CONTRACTS
PROVIDING FOR MUCH HIGHER PROFITS.  TO TAKE AN EXAMPLE OF THE PROFITS
MADE ON FOOD PRODUCTS, THE FEDERAL TRADE COMMISSION DETERMINED THAT, IN
1917, PROFITS ON THE SALES OF SALMON CANNERIES, A MAJOR PORTION OF
WHOSE OUTPUT WAS PURCHASED BY THE GOVERNMENT, RANGED FROM 15 TO 68% OF
COST, AVERAGING 52%.  FN11 FEDERAL TRADE COMMISSION, REPORT ON CANNED
SALMON (1918) 63.  IN THE SHIPBUILDING INDUSTRY ITSELF, EVEN IN PEACE
TIMES, PROFITS WERE FOUND BY A SPECIAL COMMITTEE OF THE SENATE, WHICH
INVESTIGATED THE MUNITIONS INDUSTRY, TO HAVE BEEN FROM 25% TO 37% ON
THE CRUISERS BUILT IN 1927, ABOUT 22% IN 1929, AND OF LIKE RANGE FOR
OTHER YEARS.  SENATE REPORT NO. 944, 74TH CONG., 1ST SESS., 4. 

IF THE COMPARISON IS MADE WITH INDUSTRIAL PROFITS, NOT LIMITED TO
PROFITS ON GOVERNMENT CONTRACTS ALONE, THE 22% ASKED FOR HERE LIKEWISE
LOSES ALL CLAIM TO DISTINCTION.  AN EXHIBIT, THE ACCURACY OF WHICH THE
GOVERNMENT HAS NOT CHALLENGED, INCORPORATED INTO THE RECORD OF THIS
CASE, INDICATES THAT IN TERMS OF PROFIT ON GROSS SALES, THE LARGEST
AMERICAN STEEL COMPANY MADE 49, 58, AND 46% DURING THE YEARS 1916,
1917, AND 1918.  AS COMPUTED BY THE FEDERAL TRADE COMMISSION, NET
EARNINGS IN 1917 OF THE SAME COMPANY ON ALL ITS BUSINESS WERE 25% OF
TOTAL INVESTMENT, AND THE COMMISSION CITES INSTANCES OF OTHER STEEL
COMPANIES WHOSE EARNINGS THUS MEASURED RANGED FROM 30 TO 320%.  FEDERAL
TRADE COMMISSION, LETTER ON PROFITEERING (1918) 9.  PROFITS OF LUMBER
PRODUCERS, AGAIN IN TERMS OF RETURN ON INVESTMENT, RANGED AS HIGH AS
121%; AND OF PRODUCERS OF PETROLEUM PRODUCTS, AS HIGH AS 122%, OVER
HALF OF THE INDUSTRY EARNING MORE THAN 20%.  ID., 12, 13.  DURING THE
FIRST SIX MONTHS OF 1917, ONE OF THE TWO MAJOR SULPHUR PRODUCERS IN THE
COUNTRY SOLD ITS PRODUCT AT AN AVERAGE PRICE OF $18.11 PER TON, MORE
THAN 200% ABOVE COST, WHICH WAS $5.73 PER TON; THE OTHER MAJOR PRODUCER
EARNED 236% ON ITS INVESTMENT DURING THE FIRST ELEVEN MONTHS OF THE
SAME YEAR.  ID. 11.  THE FEDERAL TRADE COMMISSION'S COLLECTION OF DATA
FOR VARIOUS OTHER INDUSTRIES, A COLLECTION WHICH THE COMMISSION STATED
WAS "BY NO MEANS A COMPLETE CATALOG," AFFORDS MANY ADDITIONAL EXAMPLES
OF THE SAME KIND.  BUT FURTHER CONFIRMATION SHOULD BE UNNECESSARY FOR A
CONCLUSION NO BUSINESSMAN WOULD QUESTION:  THAT THE PROFITS CLAIMED
HERE, SEEN IN THEIR COMMERCIAL ENVIRONMENT, CANNOT BE CONSIDERED
EXCEPTIONAL. 

THE PROFITS CLAIMED HERE ARISE UNDER CONTRACTS DELIBERATELY LET BY
THE FLEET CORPORATION UNDER AUTHORITY DELEGATED BY THE PRESIDENT IN
ACCORDANCE WITH AN ACT OF CONGRESS.  NEITHER CONGRESS NOR THE PRESIDENT
RESTRICTED THE FREEDOM OF THE FLEET CORPORATION TO GRANT MEASURES OF
PROFITS COMMON AT THE TIME.  AND THE FLEET CORPORATION'S CHOSEN POLICY
WAS TO OPERATE IN A FIELD WHERE PROFITS FOR SERVICES ARE DEMANDED AND
EXPECTED.  THE FUTILITY OF SUBJECTING THIS CHOICE OF POLICY TO JUDICIAL
REVIEW IS DEMONSTRATED BY THIS CASE, COMING TO THIS COURT AS IT DOES
MORE THAN TWENTY YEARS AFTER THE SHIPS WERE COMPLETED.  IN ANY EVENT,
WE BELIEVE THE QUESTION OF WHETHER OR NOT THIS POLICY WAS WISE IS
OUTSIDE OUR PROVINCE TO DECIDE.  UNDER OUR FORM OF GOVERNMENT WE DO NOT
HAVE THE POWER TO NULLIFY IT, AS WE BELIEVE WE SHOULD NECESSARILY BE
DOING, WERE WE TO DECLARE THESE CONTRACTS UNENFORCEABLE ON THE GROUND
THAT PROFITS GRANTED UNDER CONGRESSIONAL AUTHORITY WERE TOO HIGH.  THE
PROFITS MADE IN THESE AND OTHER CONTRACTS ENTERED INTO UNDER THE SAME
SYSTEM MAY JUSTLY AROUSE INDIGNATION.  BUT INDIGNATION BASED ON THE
NOTIONS OF MORALITY OF THIS OR ANY OTHER COURT CANNOT BE JUDICIALLY
TRANSMUTED INTO A PRINCIPLE OF LAW OF GREATER FORCE THAN THE EXPRESSED
WILL OF CONGRESS.  FN12

                                  IV 

THE PROBLEM OF WAR PROFITS IS NOT NEW.  IN THIS COUNTRY, EVERY WAR WE
HAVE ENGAGED IN HAS PROVIDED OPPORTUNITIES FOR PROFITEERING AND THEY
HAVE BEEN TOO OFTEN SCANDALOUSLY SEIZED.  SEE HEARINGS BEFORE THE HOUSE
COMMITTEE ON MILITARY AFFAIRS ON H.R. 3 AND H.R. 5293, 74TH CONG., 1ST
SESS., 590-598.  TO MEET THIS RECURRENT EVIL, CONGRESS HAS AT TIMES
TAKEN VARIOUS MEASURES.  IT HAS AUTHORIZED PRICE FIXING.  IT HAS PLACED
A FIXED LIMIT ON PROFITS, OR HAS RECAPTURED HIGH PROFITS THROUGH
TAXATION.  IT HAS EXPRESSLY RESERVED FOR THE GOVERNMENT THE RIGHT TO
CANCEL CONTRACTS AFTER THEY HAVE BEEN MADE.  PURSUANT TO CONGRESSIONAL
AUTHORITY, THE GOVERNMENT HAS REQUISITIONED EXISTING PRODUCTION
FACILITIES OR ITSELF BUILT AND OPERATED NEW ONES TO PROVIDE NEEDED WAR
MATERIALS.  IT MAY BE THAT ONE OR SOME OR ALL OF THESE MEASURES SHOULD
BE UTILIZED MORE COMPREHENSIVELY, OR THAT STILL OTHER MEASURES MUST BE
DEVISED.  BUT IF THE EXECUTIVE IS IN NEED OF ADDITIONAL LAWS BY WHICH
TO PROTECT THE NATION AGAINST WAR PROFITEERING, THE CONSTITUTION HAS
GIVEN TO CONGRESS, NOT TO THIS COURT, THE POWER TO MAKE THEM. 
AFFIRMED. 

FN1  INCLUDED IN THE DETAILED AND COMPREHENSIVE ITEMIZATION OF
"ACTUAL COST" WERE THE FOLLOWING AND "ITEMS SIMILAR THERETO IN
PRINCIPLE": 

"THE NET COSTS  ...  OF LABOR (INCLUDING COMPENSATION OF LABOR BY WAY
OF BONUSES), AND MATERIALS, MACHINERY, EQUIPMENT, AND SUPPLIES  ...
AND OTHER DIRECT CHARGES, SUCH AS INSURANCE ON THE VESSELS, ETC. 

"A PROPER PROPORTION OF RUNNING EXPENSES, INCLUDING ORDINARY RENTALS,
...  REPAIRS, AND MAINTENANCE, LIGHT, HEAT, POWER, INSURANCE,
MANAGEMENT, SALARIES (INCLUDING COMPENSATION BY WAY OF BONUSES), AND
OTHER INDIRECT CHARGES  ... 

"A PROPER PROPORTION OF INTEREST ACCRUED  ...  ON BONDS OR OTHER
DEBTS OR LOANS EXISTING OR CONTRACTED FOR PRIOR TO THE DATE OF THIS
CONTRACT AND THE PROCEEDS OF WHICH SHALL BE USED, OR SHALL HAVE BEEN OR
SHALL BE INVESTED IN PLANT, EQUIPMENT, ETC., THAT SHALL BE USED, IN THE
PERFORMANCE OF THE WORK UNDER THIS CONTRACT. 

"A PROPER PROPORTION OF TAXES OF ALL KINDS ACCRUED DURING THE TAXABLE
YEAR WITH RESPECT TO THE BUSINESS OR PROPERTY, EXCEPT ANY FEDERAL
TAXES. 

"A PROPER PROPORTION OF PHYSICAL LOSSES ACTUALLY SUSTAINED WITHIN THE
TAXABLE YEAR IN CONNECTION WITH THE CONSTRUCTION OF THE VESSELS UNDER
THIS CONTRACT, INCLUDING LOSSES FROM FIRE, FLOOD, STORM, RIOT,
VANDALISM, ANY ACTS OF GOD, ACTS OF WAR, OR OTHER CASUALTIES AND NOT
COMPENSATED FOR BY INSURANCE OR OTHERWISE. 

"A REASONABLE ALLOWANCE, ACCORDING TO THE CONDITION, FOR DEPRECIATION
OF VALUES OF THE PROPERTY AND PLANT OF THE CONTRACTOR USED IN
CONNECTION WITH THE WORK UNDER THIS CONTRACT." 

NEITHER IN THE CONTRACTS NOR UNDER ANY RELEVANT STATUTORY PROVISION
WAS THERE ANY RESTRICTION ON SALARIES AND BONUSES TO BE PAID TO
EXECUTIVES OF THE SHIPBUILDER OR ITS AFFILIATES.  CF. SECTIONS 505(C)
AND 805(C) OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 1985, 1999,
2013. 

FN2  EVEN IN THE CASE OF LUMP SUM CONTRACTS WITH THE GOVERNMENT, IT
IS GENERALLY RECOGNIZED THAT THE REAL RISK OF LOSS IS NEGLIGIBLE.  IT
IS USUAL IN THIS KIND OF CONTRACT TO SET PRICES HIGH ENOUGH TO COVER,
OR OTHERWISE SPECIFICALLY TO PROVIDE AGAINST, UNFORESEEN
CONTINGENCIES.  AND WHERE LOSS DOES OCCUR CONTRARY TO THE EXPECTATION
OF BOTH PARTIES, CONGRESS OFTEN PASSES SPECIAL BILLS MAKING THE
CONTRACTORS WHOLE. 

FN3  THESE SHIPS APPARENTLY COST THE GOVERNMENT AT LEAST A LARGE PART
OF STILL ANOTHER $4,825,415.  THE GOVERNMENT PAID THIS AMOUNT TO
BETHLEHEM TO AID IN EXPANSION OF PLANT FACILITIES TO BUILD THE SHIPS -
FACILITIES WHICH WERE TURNED OVER TO BETHLEHEM AFTER THE WAR.  THE
GOVERNMENT'S MONEY WAS CONTRIBUTED UNDER A CONTRACT COMMONLY IN USE
WHEREBY THE CONTRACTOR WAS GIVEN THE OPTION OF PURCHASING THE
ADDITIONAL FACILITIES AT A DEPRECIATED VALUE.  WHETHER THE GOVERNMENT,
UPON CONVEYANCE OF THE PROPERTY, RECEIVED ANY COMPENSATION AT ALL DOES
NOT CLEARLY APPEAR. 

FN4  WHILE PROFITS ON INDIVIDUAL CONTRACTS RANGED ABOVE AND BELOW
22%, BOTH IN THE PROCEEDINGS BELOW AND IN THIS COURT THE WHOLE SERIES
OF CONTRACTS WAS REGARDED AS A UNIT.  THE GOVERNMENT HAS MADE NO
SEPARATE ARGUMENT WITH RESPECT TO THE INDIVIDUAL CONTRACTS IN WHICH
MORE THAN THE AVERAGE PROFIT WAS REALIZED, NOR HAS BETHLEHEM WITH
RESPECT TO THE CONTRACTS IN WHICH THE AMOUNT DUE UNDER THE HALF-SAVINGS
CLAUSE PROVED TO BE SMALL.  THE ONLY FINDING OF THE MASTER IN WHICH ANY
SEPARATION OF CONTRACTS IS MADE SHOWS THAT THE PROFITS REALIZED ON
CONTRACTS IN WHICH THE ESTIMATED COSTS WERE CHECKED BY THE FLEET
CORPORATION WERE HIGHER THAN THOSE ON CONTRACTS IN WHICH THE FLEET
CORPORATION ACCEPTED BETHLEHEM'S ESTIMATES WITHOUT CHECK. 

FN5  COMPARE THE STATUTORY METHOD OF RESTRICTING PROFITS OF
AFFILIATES EMBODIED IN SEC. 803 OF THE MERCHANT MARINE ACT OF 1936, 49
STAT. 1985, 2012. 

FN6  THE CONTRACTS CONTAINED A PROVISION, USUAL IN FLEET CORPORATION
CONTRACTS, UNDER WHICH THE GOVERNMENT AGREED "TO PROVIDE THE CASH FUNDS
NECESSARY TO PAY FOR WORK ALREADY DONE AND MATERIALS ALREADY FURNISHED
AND FOR CARRYING ON THE WORK UNDER THIS CONTRACT." 

FN7  THE GOVERNMENT CONCEDES "THAT $1,514,995 OF THE JUDGMENT AWARDED
...  IN THE ACTION AT LAW IS  ...  DUE UNDER CONTRACTS OTHER THAN
THOSE NOW UNDER ATTACK." 

FN8  OF THE CASES CALLED TO OUR ATTENTION BY THE GOVERNMENT, ONLY IN
BURKE & JAMES, INC. V. UNITED STATES, 63 CT. CLS. 36, WAS A BONUS FOR
SAVINGS CLAUSE HELD SEVERABLE AND INVALID ALTHOUGH REGARDED AS "PART
AND PARCEL OF THE ORIGINAL  ...  CONTRACT."  WE AGREE, AS DID BOTH
COURTS BELOW, WITH THE MASTER'S STATEMENT THAT THE BURKE CASE IS NOT
APPLICABLE HERE BECAUSE "THE FACTS UPON WHICH THE DECISION OF THAT CASE
WAS BASED ARE SO DIFFERENT." 

FN9  THE DISTRICT COURT TREATED THE CONTRACTS AS GOVERNED BY THE LAW
OF PENNSYLVANIA.  THE CIRCUIT COURT OF APPEALS TREATED THEM AS GOVERNED
BY THE LAW EITHER OF PENNSYLVANIA OR THE DISTRICT OF COLUMBIA, BUT DID
NOT DECIDE WHICH.  THE FLEET CORPORATION WAS ORGANIZED UNDER THE LAWS
OF THE DISTRICT OF COLUMBIA.  ALTHOUGH WHOLLY OWNED AND CONTROLLED BY
THE GOVERNMENT IT HAS BEEN HELD SUBJECT TO SUIT IN EITHER STATE OR
FEDERAL COURTS.  SLOAN SHIPYARDS CORP. V. U.S. FLEET CORP., 258 U.S.
549; U.S. SHIPPING BOARD MERCHANT FLEET CORP. V. HARWOOD, 281 U.S.
519. 

FN10  CF.:  "OBVIOUSLY NO SANE MAN WOULD BID ON A LUMP-SUM CONTRACT
UNDER SUCH CONDITIONS, UNLESS PERCHANCE HE SHOULD TREAT THE MATTER AS A
PURE GAMBLE AND INCLUDE AN EXCESSIVE MARGIN IN HIS PROPOSAL FOR
UNFORESEEN CONTINGENCIES."  REPORT OF CHIEF OF CONSTRUCTION DIVISION,
WAR DEPARTMENT ANNUAL REPORTS (1919) 4147. 

FN11  THE FEDERAL TRADE COMMISSION REPORT DOES NOT GIVE SEPARATE
FIGURES ON SALES TO THE GOVERNMENT, BUT POINTS OUT (P. 7) THAT THE
GOVERNMENT HAD ANNOUNCED ITS INTENTION TO PURCHASE 80% OF THE 1918
PACK. 

FN12  CF.:  "IT WOULD BE VERY DANGEROUS, INDEED, TO THE BEST
INTERESTS OF THE GOVERNMENT  ... IF  ...  THIS (COURT) SHOULD  ...
RENDER DECREES ON THE CRUDE NOTIONS OF THE JUDGES OF WHAT IS OR WOULD
BE MORALLY RIGHT BETWEEN THE GOVERNMENT AND THE INDIVIDUAL."  SMOOT'S
CASE, 15 WALL.  36, 45-46. 

THE CHIEF JUSTICE AND MR. JUSTICE JACKSON, WHO AS FORMER ATTORNEYS
GENERAL ACTIVELY PARTICIPATED IN THE PROSECUTION OF THESE CASES, TAKE
NO PART IN THIS DECISION.  MR. JUSTICE ROBERTS ALSO TAKES NO PART IN
THE DECISION. 

MR. JUSTICE MURPHY, CONCURRING: 

I CONCUR IN THE OPINION OF THE COURT INSOFAR AS IT RELATES TO DURESS
AND COERCION AND THE NON-SEVERABILITY OF THE "BONUS FOR SAVINGS"
CLAUSES, BUT DESIRE TO ADD A BRIEF FURTHER STATEMENT OF MY VIEWS. 

IN VOTING FOR AFFIRMANCE OF THE JUDGMENT, I DO NOT WISH TO BE
UNDERSTOOD AS EXPRESSING APPROVAL OF AN ARRANGEMENT LIKE THE ONE NOW
UNDER REVIEW, BY WHICH A COMPANY ENGAGED IN DOING WORK FOR THE
GOVERNMENT IN TIME OF GRAVE NATIONAL PERIL - OR ANY OTHER TIME - IS
ENTITLED TO A PROFIT OF 22 PER CENT. UNDER CONTRACTS INVOLVING LITTLE
OR NO RISK AND GROSSING MANY MILLIONS OF DOLLARS.  SUCH AN ARRANGEMENT
NOT ONLY IS INCOMPATIBLE WITH SOUND PRINCIPLES OF PUBLIC MANAGEMENT,
BUT IS INJURIOUS TO PUBLIC CONFIDENCE AND PUBLIC MORALE.  THE FACT THAT
SUCH CASES WERE COMMON DURING THE LAST WAR, AS EVIDENCED BY THE
CIRCUMSTANCES RECITED IN THE OPINION OF THE COURT, PROVIDES NO
JUSTIFICATION TO MY MIND FOR SUCH A PRACTICE THEN OR NOW.  NO MAN OR
SET OF MEN SHOULD WANT TO MAKE EXCESSIVE PROFITS OUT OF THE TRAVAIL OF
THE NATION AT WAR, AND GOVERNMENT OFFICIALS ENTRUSTED WITH CONTRACTING
AUTHORITY, AND THE CONGRESS BESTOWING SUCH AUTHORITY, SHOULD BE ALERT
TO PREVENT IT. 

THE QUESTION BEFORE THE COURT FOR DECISION, HOWEVER, IS NOT WHETHER
AN ARRANGEMENT LIKE THE ONE PRESENTED FOR REVIEW ACCORDS WITH OUR
CONCEPTIONS OF BUSINESS MORALITY OR WITH CORRECT ADMINISTRATION OF THE
PUBLIC BUSINESS.  HAVING MADE A BARGAIN, THE GOVERNMENT SHOULD BE HELD
TO IT UNLESS THERE ARE VALID AND APPROPRIATE REASONS KNOWN TO THE LAW
FOR RELIEVING IT FROM ITS OBLIGATIONS.  IT IS THE DUTY AND
RESPONSIBILITY OF THE COURTS, NOT TO RE-WRITE CONTRACTS ACCORDING TO
THEIR OWN VIEWS OF WHAT IS PRACTICAL AND FAIR, BUT TO ENFORCE THEM IN
ACCORDANCE WITH THE EVIDENCE AND RECOGNIZED PRINCIPLES OF LAW. 

IN MY OPINION THE ELEMENTS OF DURESS AND COERCION HAVE NOT BEEN
ESTABLISHED IN THIS CASE.  THE DOCTRINE THAT "NECESSITOUS MEN ARE NOT
FREE MEN," A DOCTRINE EVOLVED BY THE ENGLISH COURTS OF CHANCERY IN THE
EIGHTEENTH CENTURY FOR THE PROTECTION OF HARASSED DEBTORS,  FN1  IS NOT
APPLICABLE TO THE GOVERNMENT OF THE UNITED STATES, ARMED AS IT IS WITH
BOTH AN ACTUAL AND A POTENTIAL ARSENAL OF POWERS ADEQUATE TO PROTECT
ITS INTERESTS IN DEALINGS WITH PRIVATE PERSONS. 

I AM ALSO OF OPINION THAT THE "BONUS FOR SAVINGS" CLAUSES ARE
INTEGRAL PARTS OF THE CONTRACTS IN QUESTION AND PART OF THE ENTIRE
CONSIDERATION MOVING TO BETHLEHEM IN EXCHANGE FOR ITS PROMISE TO BUILD
SHIPS.  TO CHARACTERIZE THESE CLAUSES AS SEVERABLE AND SUPPORTED BY
CONSIDERATION ONLY IF BETHLEHEM PROMISED TO INCREASE ITS EFFICIENCY IS
INGENIOUS, BUT REQUIRES US TO CLOSE OUR EYES TO THE ACTUALITIES OF THE
RECORD BEFORE US AND TO IGNORE FUNDAMENTAL CONTRACT LAW. 

NOR CAN I ACCEPT THE PROPOSITION THAT THE "BONUS FOR SAVINGS" CLAUSES
ARE PROPERLY INTERPRETED AS MEANING THAT BETHLEHEM WAS TO RECEIVE ONE
HALF OF THE "SAVINGS" ONLY INSOFAR AS BETHLEHEM COULD PROVE THAT THE
"SAVINGS" WERE DUE TO ITS INCREASED EFFICIENCY.  SUCH AN
INTERPRETATION, IT IS TRUE, WOULD PREVENT BETHLEHEM FROM BENEFITING BY
REASON OF PURELY FORTUITOUS "SAVINGS."  HOWEVER, IN THE ABSENCE, AS
HERE, OF FRAUD, MISTAKE, OR THAT OVERREACHING WHICH WE LABEL "DURESS"
AND "COERCION," CONTRACTS SHOULD BE INTERPRETED AS THEY ARE WRITTEN,
NOT AS THEY MIGHT OR SHOULD HAVE BEEN WRITTEN IN THE LIGHT OF AFTER
THOUGHT AND SUBSEQUENT EXPERIENCE.  THE LANGUAGE OF THE "SAVINGS"
CLAUSES DOES NOT LIMIT BETHLEHEM'S PARTICIPATION IN "SAVINGS" TO THOSE
ATTRIBUTABLE ONLY TO ITS OWN EFFORTS.  THE MASTER FOUND THAT "BETHLEHEM
WAS TO PARTICIPATE IN SAVINGS HOWEVER EARNED."  THE SUGGESTED
INTERPRETATION, IGNORING THE LANGUAGE OF THE CONTRACTS AND THE
EXPRESSED UNDERSTANDING OF THE PARTIES, GRATUITOUSLY REWRITES THE
CONTRACTS TO ACCORD WITH NOTIONS OF FAIRNESS ACQUIRED IN THE LIGHT OF
SUBSEQUENT DEVELOPMENTS. 

IT IS UNDERSTANDABLE THAT ONE MAY BE INDIGNANT AT BETHLEHEM'S CLAIM,
BUT SUCH INDIGNATION DOES NOT JUSTIFY THE DISTORTION OF ESTABLISHED
LEGAL PRINCIPLES TO RELIEVE THE GOVERNMENT OF ITS APPROVAL OF A HARD
BARGAIN.  IT CANNOT BE LEFT OUT OF CONSIDERATION THAT THE GOVERNMENT
ENTERED INTO THE AGREEMENTS WITH FULL UNDERSTANDING OF THEIR TERMS. 
SURELY THERE IS MUCH TO BE SAID IN FAVOR OF THE GOVERNMENT'S STANDING
BEHIND OBLIGATIONS, EVEN THOUGH QUITE ONEROUS, WHICH IT INCURRED WITH
KNOWLEDGE OF THE CIRCUMSTANCES.  THE POSSIBILITY THAT THE GOVERNMENT
MAY BE RELIEVED OF BARGAINS TWENTY-FOUR YEARS AFTER AGREEING TO THEM IS
NOT CONDUCIVE TO MUTUAL TRUST AND CONFIDENCE BETWEEN CITIZENS AND THEIR
GOVERNMENT.    THE JUDGMENT SHOULD BE AFFIRMED. 

FN1  VERNON V. BETHELL, 2 EDEN 110, 113.  AND SEE WOOD V. ABREY, 3
MADDOCK'S CHAN.  216; UNDERHILL V. HORWOOD, 10 VES.  JR. 209. 

MR. JUSTICE FRANKFURTER, DISSENTING:    THE FOUNDERS DIVIDED OUR
GOVERNMENT INTO THREE BRANCHES, PARTLY TO PREVENT AUTOCRATIC
CONCENTRATION OF POWER AND PARTLY TO ACHIEVE APPROPRIATE DIVISION OF
LABOR IN THE DIFFICULT TASK OF GOVERNMENT.  THE PRESIDENT HAS HIS
DUTIES, THE CONGRESS ITS DUTIES, AND WE OURS.  WHAT POWERS THE CONGRESS
SHOULD GIVE THE PRESIDENT IN ORDER TO OBTAIN THE MOST EFFECTIVE
PRODUCTION OF WAR SUPPLIES, HOW THE PRESIDENT SHOULD EXERCISE THOSE
POWERS, WHETHER A SYSTEM OF PRIVATE CONTRACTS FOR WAR MATERIALS IS
CONDUCIVE TO UNJUSTIFIABLE WASTE AND PROFITEERING, OR WHETHER
GOVERNMENT PRODUCTION OF NECESSARY WAR SUPPLIES IS A WISER COURSE -
THESE AND LIKE MATTERS ARE NOT OUR BUSINESS AND UPON THEM WE SHOULD
NEITHER EXPRESS NOR INTIMATE VIEWS.  HOWEVER CIRCUMSCRIBED THE JUDICIAL
AREA MAY BE, WE HAD BEST REMAIN WITHIN IT.  BUT THE FUNCTION OF THE
JUDICIARY IS NOT SO LIMITED THAT IT MUST SANCTION THE USE OF THE
FEDERAL COURTS AS INSTRUMENTS OF INJUSTICE IN DISREGARD OF MORAL AND
EQUITABLE PRINCIPLES WHICH HAVE BEEN PART OF THE LAW FOR CENTURIES.  I
AM COMPELLED, THEREFORE, TO DISSENT FROM THE JUDGMENT OF THE COURT. 

IN THE SUMMER OF 1917 THE UNITED STATES WAS AT WAR WITH GERMANY.  THE
ENEMY'S SUBMARINE WAS TAKING TERRIFIC TOLL OF OUR SHIPPING.  THE
IMMEDIATE THREAT TO OUR NATIONAL SECURITY HAD TO BE MET PROMPTLY. 
CONGRESS ENACTED THE EMERGENCY SHIPPING FUND ACT OF JUNE 15, 1917, 40
STAT. 182, CONFERRING VAST POWERS UPON THE PRESIDENT.  HE WAS
AUTHORIZED TO PLACE ORDERS FOR SUCH SHIPS OR MATERIAL AS "THE
NECESSITIES OF THE GOVERNMENT" MAY REQUIRE; TO MODIFY, SUSPEND, CANCEL
OR REQUISITION CONTRACTS FOR THE BUILDING, PRODUCTION, OR PURCHASE OF
SHIPS OR MATERIAL; AND TO TAKE OVER ANY PLANTS AND SHIPS CONSTRUCTED OR
IN THE PROCESS OF CONSTRUCTION.  IF ANY PERSON OWNING ANY SHIP, PLANT,
OR MATERIAL REFUSED TO BUILD OR SELL SHIPS OR MATERIAL ORDERED BY THE
GOVERNMENT "AT SUCH REASONABLE PRICE AS SHALL BE DETERMINED BY THE
PRESIDENT," HE WAS EMPOWERED TO TAKE POSSESSION OF THE SHIPS, MATERIAL,
OR PLANT OF SUCH PERSON. 

ON JULY 11, 1917, THE PRESIDENT DELEGATED ALL THE AUTHORITY VESTED IN
HIM BY THIS ACT TO THE UNITED STATES SHIPPING BOARD EMERGENCY FLEET
CORPORATION.  A STUPENDOUS TASK WAS THEREBY IMPOSED UPON THE FLEET
CORPORATION.  "THE PROGRAM OF CONSTRUCTION, AS WELL AS OPERATION WAS
GIGANTIC.  IT INVOLVED AN EXPENDITURE OF MORE THAN THREE AND A HALF
BILLION DOLLARS, A SUM GREATER THAN ANY EXPENDED BY ANY CORPORATION IN
A SIMILAR PERIOD OF TIME.  MANY OF THE OFFICIALS AND BOARD MEMBERS WERE
WITHOUT EXPERIENCE IN EITHER SHIPBUILDING OR OPERATION.  NO ADEQUATE
ORGANIZATION EXISTED AT THE BEGINNING.  A COMPLETE ORGANIZATION TO
CARRY OUT ITS LARGE PROGRAM HAD TO BE CREATED.  THERE WAS A SHORTAGE OF
SHIPBUILDING SKILL AS WELL AS SHIPBUILDING FACILITIES.  THE NEED FOR
SHIPS WAS IMPERATIVE AND CONSTANTLY INCREASED DURING THE COMBAT
PERIOD."  REPORT OF THE SELECT COMMITTEE ON U.S. SHIPPING BOARD
OPERATIONS, H. REP. NO. 1399, 66TH CONG., 3D SESS., P. 24. 

BETHLEHEM WAS THE LARGEST SHIPBUILDING COMPANY IN THE WORLD.  ITS
FIVE SUBSIDIARIES AND THEIR PLANTS WERE EXPERIENCED SHIPBUILDERS, WITH
EFFICIENT AND WELL-EQUIPPED ORGANIZATIONS.  AS THE MASTER IN THIS CASE
FOUND, "IT WAS UNDERSTOOD BY ALL PARTIES CONCERNED THAT THE FLEET
CORPORATION SHIPBUILDING PROGRAM WOULD CALL FOR CAPACITY PRODUCTION AT
EACH OF BETHLEHEM'S SHIPYARDS."  OF COURSE THE GOVERNMENT HAD THE POWER
TO TAKE OVER BETHLEHEM'S SHIPYARDS AND PLANTS.  BUT THE UNITED STATES
WAS AT WAR.  IT NEEDED SHIPS - AND IT NEEDED THEM AT ONCE.  THE
SHIPYARDS AND PLANTS OF A RECALCITRANT SHIPBUILDER WOULD NOT PRODUCE
THE NECESSARY TONNAGE, AT LEAST NOT IN THE NEEDED TIME, WITHOUT AN
ORGANIZATION ABLE TO OPERATE THEM AT MAXIMUM EFFICIENCY.  THE MASTER
FOUND THAT "A FAILURE TO INDUCE BETHLEHEM TO UNDERTAKE THE SHIPBUILDING
PROGRAM COVERED BY THESE CONTRACTS, FOLLOWED BY THE TAKING POSSESSION
BY THE FLEET CORPORATION OF THE BETHLEHEM PLANTS, COULD NOT HAVE
ACCOMPLISHED THE DESIRED RESULT.  IT WAS BETHLEHEM'S ORGANIZATION THAT
WAS NECESSARY TO INSURE SUCCESS TO THE SHIPBUILDING PROGRAM OF THE
FLEET CORPORATION AND, AS THE GOVERNMENT DID NOT HAVE POWER TO COMPEL
PERFORMANCE BY AN UNWILLING ORGANIZATION, IF BETHLEHEM DEMANDED ITS
PRICE ON THE BASIS OF SUBSTANTIAL COMMERCIAL PROFITS RATHER THAN
CONTRIBUTE SUCH SERVICES ON A PATRIOTIC BASIS, THE GOVERNMENT WAS
OBLIGED TO TAKE THE CONTRACTS ON SUCH BASIS OR NOT AT ALL." 

BETHLEHEM DOES NOT DENY THAT IN THESE NEGOTIATIONS THE GOVERNMENT'S
LEGAL POWER TO REQUISITION ITS SHIPYARDS WAS, FOR PURPOSES OF
BARGAINING, AN EMPTY WEAPON.  "IT IS ALSO TRUE," BETHLEHEM ADMITS,
"THAT, ALTHOUGH THE FLEET CORPORATION HAD THE POWER TO TAKE OVER
BETHLEHEM'S YARDS, WHAT IT REALLY REQUIRED FOR THE CARRYING OUT OF ITS
PROGRAM WAS THE USE OF BETHLEHEM'S ORGANIZATION - ITS KNOWLEDGE OF HOW
TO BUILD SHIPS."  THE REPRESENTATIVES OF BOTH BETHLEHEM AND THE FLEET
CORPORATION KNEW THAT THE GOVERNMENT DID NOT REGARD ITS POWER TO
REQUISITION PLANTS AND SHIPYARDS AS A SATISFACTORY ALTERNATIVE TO
MAKING CONTRACTS WITH PRIVATE SHIPBUILDERS FOR THE CONSTRUCTION OF
SHIPS.  FN1  IT IS NOT FOR US TO SAY THAT THE GOVERNMENT SHOULD NOT
HAVE DETERMINED UPON SUCH A POLICY.  IT IS ENOUGH THAT WHEN THESE
CONTRACTS WERE MADE, NONE OF THE PARTIES BELIEVED THAT THERE WAS OPEN
TO THE GOVERNMENT THE FEASIBLE ALTERNATIVE WHICH NOW, TWENTY-FIVE YEARS
LATER, THIS COURT SAYS WAS OPEN TO IT. 

THIS WAS THE SETTING IN WHICH THE CONTRACTS IN SUIT WERE MADE. 
BETHLEHEM WAS REPRESENTED THROUGHOUT THE NEGOTIATIONS BY JOSEPH W.
POWELL, ITS VICE PRESIDENT AND OPERATING MANAGER, AND HARRY BROWN, ITS
TECHNICAL MANAGER, DESCRIBED BY THE MASTER AS "TWO OF THE ABLEST AND
MOST EXPERIENCED SHIPBUILDERS AND ESTIMATORS OF SHIPBUILDING COSTS IN
THE UNITED STATES."  ON BEHALF OF THE FLEET CORPORATION THE ACTIVE
NEGOTIATORS WERE ADMIRAL E. T. BOWLES, MANAGER OF ITS DIVISION OF STEEL
SHIP CONSTRUCTION, AND G. S. RADFORD, MANAGER OF ITS CONTRACT
DIVISION.  THE MASTER CHARACTERIZED BOWLES AND RADFORD AS "EQUALLY
COMPETENT SHIPBUILDING EXPERTS."  HOWEVER, THEY WERE NOT EMPOWERED TO
CONCLUDE CONTRACTS ON BEHALF OF THE FLEET CORPORATION.  THAT ULTIMATE
AUTHORITY BELONGED TO CHARLES PIEZ, THE VICE-PRESIDENT AND GENERAL
MANAGER OF THE FLEET CORPORATION.  PIEZ WAS A BUSINESS MAN WHO HAD HAD
NO PREVIOUS SHIPBUILDING EXPERIENCE, AND THE MASTER FOUND THAT "AT THE
TIME OF THE NEGOTIATIONS RELATING TO THE CONTRACTS IN CONTROVERSY, THE
RELATIONS BETWEEN POWELL AND PIEZ WERE VERY CLOSE.  PIEZ, AS POWELL
KNEW, HAD HAD NO SHIPBUILDING EXPERIENCE WHATSOEVER, HAD IMPLICIT
CONFIDENCE IN POWELL'S INTEGRITY AND SHIPBUILDING ABILITY AND
EXPERIENCE, AND WAS ACCUSTOMED TO LOOK TO HIM FOR INFORMATION AND
ASSISTANCE WITH RESPECT TO MATTERS OF SHIPBUILDING." 

FOLLOWING A CONFERENCE IN WASHINGTON ON JUNE 15, 1917, ATTENDED BY
POWELL AND OTHER SHIPBUILDERS, THE GENERAL MANAGER OF THE FLEET
CORPORATION REQUESTED BETHLEHEM TO SUBMIT FORMAL PROPOSALS FOR THE
CONSTRUCTION OF SHIPS.  THROUGHOUT THE ENTIRE NEGOTIATIONS WHICH
FOLLOWED, THE FLEET CORPORATION TRIED TO PERSUADE BETHLEHEM TO ENTER
INTO "LUMP-SUM" CONTRACTS.  POWELL REFUSED, INSISTING UPON THE SO
CALLED "HALF-SAVINGS" FORM OF CONTRACT WHICH HE HAD ORIGINATED.  HE SET
FORTH HIS PROPOSALS IN HIS LETTER OF DECEMBER 13, 1917, TO THE FLEET
CORPORATION:  "BECAUSE OF THE UNPRECEDENTED CONDITIONS SURROUNDING THE
LABOR AND MATERIAL MARKET, IT IS IMPRACTICABLE TO ESTIMATE WITHIN A
REASONABLE PERCENTAGE WHAT WILL BE THE ACTUAL COST OF CONSTRUCTION, AND
IT IS THEREFORE IMPOSSIBLE TO SUBMIT FIXED PRICES FOR ANY OF THESE
VESSELS, EXCEPT UPON A BASIS SO FAR ABOVE ESTIMATED COST THAT ANY
FIGURE ACCEPTABLE TO THIS COMPANY WOULD NOT BE ACCEPTABLE TO THE
EMERGENCY FLEET CORPORATION.  IT IS PROPOSED, HOWEVER, THAT THEY BE
CONSTRUCTED ON THE BASIS OF ACTUAL COST PLUS A FEE, WITH AN AGREED UPON
PROBABLE COST, THIS COMPANY TO BE PAID IN ADDITION TO THE FEE ONE-HALF
OF ANY SAVING THAT MAY BE MADE BELOW THIS COST FIGURE, AND WITH THE
FURTHER PROVISION THAT THE ESTIMATED COST FIGURE WILL BE INCREASED DUE
TO ANY INCREASE IN RATES OF WAGES THAT MAY BE APPROVED BY THE EMERGENCY
FLEET CORPORATION." 

AFTER FURTHER CONFERENCES, POWELL SUBMITTED A PROPOSAL, DATED
DECEMBER 19, 1917, SPECIFYING THE ESTIMATED COSTS AND FIXED FEES OF THE
VESSELS TO BE CONSTRUCTED.  ON THE MORNING OF JANUARY 3, 1918, BEFORE
THE FLEET CORPORATION HAD EXPRESSED ANY VIEWS ON THE PROPOSAL OF
DECEMBER 19, POWELL HANDED PIEZ A LETTER, DATED JANUARY 3, 1918,
OFFERING TO CONSTRUCT A GREATER NUMBER OF VESSELS THAN WAS SPECIFIED IN
HIS EARLIER PROPOSAL.  THE LETTER CONCLUDED "THAT WHILE THIS COMPANY
CANNOT UNDERTAKE ANY CAPITAL EXPENDITURES AT ITS EXPENSE, IF THE TERMS
IN OUR PROPOSAL DO NOT OTHERWISE MEET WITH THE EMERGENCY FLEET
CORPORATION'S APPROVAL, WE ARE PREPARED TO ACCEPT THE ORDER TO
CONSTRUCT THESE VESSELS ON SUCH TERMS AS MAY BE PERSONALLY DETERMINED
BY MR. CHARLES PIEZ, THE VICE PRESIDENT AND GENERAL MANAGER, AND
STRONGLY URGE THERE BE NO DELAY IN PLACING THIS ORDER, AS WE ARE MAKING
THIS OFFER BECAUSE OF OUR KNOWLEDGE OF THE VITAL EMERGENCY NOW
CONFRONTING THIS NATION IN CONNECTION WITH THE REQUIREMENTS FOR
ADDITIONAL MERCHANT VESSELS." 

UPON RECEIPT OF THIS LETTER, PIEZ ARRANGED A CONFERENCE BETWEEN
POWELL, BROWN, BOWLES, AND RADFORD, WHICH OCCURRED ON THE AFTERNOON OF
JANUARY 3.  BUT BOWLES AND RADFORD DID NOT KNOW, AND NEITHER WAS
INFORMED, BEFORE OR DURING THE CONFERENCE, OF THE OFFER MADE TO PIEZ IN
POWELL'S LETTER OF JANUARY 3.  IT CAN HARDLY BE SAID, THEREFORE, THAT
THIS LETTER, NEITHER ADDRESSED TO NOR MADE KNOWN TO THE REAL
NEGOTIATORS FOR THE GOVERNMENT, WAS A FACTOR IN THEIR NEGOTIATIONS. 

AT THE CONFERENCE, WHICH LASTED ABOUT FIVE HOURS, BOWLES AGAIN
ATTEMPTED TO PERSUADE POWELL TO UNDERTAKE THE CONSTRUCTION UPON A LUMP
SUM BASIS.  POWELL WAS ADAMANT, HOWEVER, AND BOWLES HAD TO ACQUIESCE IN
THE HALF-SAVINGS FORM OF CONTRACT IN ORDER TO REACH ANY AGREEMENT. 
POWELL INSISTED THAT THE ESTIMATES PREVIOUSLY SUBMITTED BY BETHLEHEM
WERE FAIR AND REASONABLE.  NEITHER BOWLES NOR RADFORD SUBMITTED ANY
ESTIMATES OR COUNTER-PROPOSALS, "THEIR CRITICISM BEING LIMITED TO THE
OPINION EXPRESSED BY BOWLES THAT THE ORIGINAL AND REDUCED ESTIMATES
SUBMITTED BY POWELL WERE TOO HIGH."  POWELL MADE SEVERAL REDUCTIONS IN
THE ESTIMATES, AND IN RESPONSE TO BOWLES' INQUIRY, BROWN ASSURED HIM
THAT THE ESTIMATES WERE ABOUT AS ACCURATE AS COULD BE MADE UNDER THE
CIRCUMSTANCES.  BOWLES AND RADFORD THEREUPON AGREED TO THE PRICES,
SUBJECT TO CONFIRMATION BY PIEZ.  ON THE SAME DAY THEY HANDED PIEZ THE
FOLLOWING MEMORANDUM: 

"WE HAND YOU HEREWITH THE BETHLEHEM SHIPBUILDING CORPORATION'S
PROPOSAL DATED DECEMBER 19, FOR ADDITIONAL CONSTRUCTION AT THEIR
VARIOUS PLANTS, AMOUNTING IN ALL TO 19 VESSELS, EXCLUSIVE OF TUGS.  IT
MAY BE NOTED THAT, WITH THE EXCEPTION OF THREE SHIPS, THE VESSELS IN
QUESTION ARE TROOP SHIPS AND TANKERS - SHIPS OF A TYPE THAT ONLY REAL
SHIPBUILDERS CAN PRODUCE SATISFACTORILY.  AS IS WELL KNOWN, WE HAVE
BEEN HAVING DIFFICULTY IN PLACING SUCH VESSELS. 

"WE WISH TO PLACE ON RECORD THE FACT THAT THE BETHLEHEM SHIPBUILDING
CORPORATION'S REPRESENTATIVES HAVE INSISTED ON COMPARATIVELY HIGH
PRICES FOR THESE VESSELS; THAT THEY HAVE ONLY WITH DIFFICULTY BEEN
PERSUADED TO QUOTE US ON THE TYPES OF SHIPS REFERRED TO; AND, THAT
THEIR ATTITUDE HAS BEEN CHARACTERIZED BY AN ARBITRARY REFUSAL TO
GUARANTEE OR STAND BEHIND DELIVERY DATES.  IN OTHER WORDS, IT WAS
DIFFICULT TO PERSUADE THEM TO QUOTE EVEN A TENTATIVE DELIVERY DATE, AND
THEY REFUSED POSITIVELY TO ACCEDE TO A BONUS AND PENALTY CLAUSE FOR
DELIVERY. 

"THE LETTER HEREWITH, ADDRESSED TO THE BETHLEHEM SHIPBUILDING
CORPORATION, IN REPLY TO THEIR PROPOSAL, HAS BEEN PREPARED FOR YOUR
SIGNATURE AND IS NOW PRESENTED WITH THE RECOMMENDATION THAT IT BE
SIGNED.  WHILE THE PRICES WE HAVE AGREED TO, WITH REPRESENTATIVES OF
THE BETHLEHEM SHIPBUILDING CORPORATION, ARE NOT SATISFACTORY TO US,
NEVERTHELESS, THEY REPRESENT A MATERIAL REDUCTION FROM THE PRICES
QUOTED BY THAT CORPORATION.  REALIZING THAT THE NATION WILL NEED THESE
VESSELS, WE HAVE BEEN ACTUATED BY THE BELIEF THAT FURTHER DELAY IN
PLACING THE CONTRACTS SHOULD BE ELIMINATED AND WE BELIEVE THAT WE HAVE
MADE THE BEST COMPROMISE POSSIBLE UNDER VERY DIFFICULT CONDITIONS." 

AS A CONSEQUENCE OF THESE NEGOTIATIONS, THE THIRTEEN CONTRACTS HERE
IN CONTROVERSY WERE EXECUTED, SEVEN ON FEBRUARY 1, 1918, AND SIX
THEREAFTER. 

THE PROVISIONS OF THESE CONTRACTS DEMAND CAREFUL ANALYSIS.  THE
CONTRACT MARKED NO. 183, CALLING FOR THE CONSTRUCTION BY BETHLEHEM OF
THREE STEEL TANK VESSELS EACH WEIGHING ABOUT 9,100 TONS, IS TYPICAL. 

IN ORDER TO PROVIDE THE SUMS NECESSARY FOR CARRYING ON THE WORK UNDER
THE CONTRACT, THE FLEET CORPORATION AGREED TO DEPOSIT IN ADVANCE "SUCH
SUMS AS MAY BE NECESSARY TO CONSTITUTE AND TO KEEP CONSTITUTED A FUND
FROM WHICH TO FINANCE THE WORK, TO PROVIDE FOR PAYMENTS TO BE MADE FOR
MATERIALS, AND FOR WAGES AND SALARIES OF PERSONS EMPLOYED UPON THE WORK
HEREUNDER."  THE FLEET CORPORATION AGREED ALSO TO ASSIST BETHLEHEM "TO
SECURE WITH THE UTMOST PRACTICABLE EXPEDITION AND AT THE MINIMUM COST
CONSISTENT WITH THE EXISTING CONDITIONS, THE FACILITIES, UTILITIES,
PARTS, MATERIALS AND SUPPLIES REQUIRED FOR THE WORK UNDER THIS
CONTRACT."  THE PRICE TO BE PAID FOR EACH VESSEL WAS DEFINED TO INCLUDE
(A) THE "ACTUAL COST," PLUS (B) A FIXED FEE OF $185,000, PLUS (C) ONE
HALF THE AMOUNT BY WHICH THE ACTUAL COST OF EACH VESSEL SHOULD FALL
SHORT OF AN ESTIMATED COST OF $1,865,000.    IT WOULD BE DIFFICULT TO
DRAFT A MORE INCLUSIVE DEFINITION OF "COST" THAN THAT CONTAINED IN THIS
CONTRACT.  "ACTUAL COST" WAS DEFINED TO INCLUDE THE FOLLOWING ITEMS, AS
WELL AS "ITEMS SIMILAR THERETO IN PRINCIPLE":  (A) THE NET COSTS OF
LABOR (INCLUDING BONUSES), MATERIALS, MACHINERY, EQUIPMENT, AND
SUPPLIES FURNISHED BY BETHLEHEM, AND ALL OTHER DIRECT CHARGES, SUCH AS
INSURANCE ON THE VESSELS, ETC.; (B) A "PROPER PROPORTION" OF RUNNING
EXPENSES, INCLUDING RENTALS, COST OF REPAIRS AND MAINTENANCE, LIGHT,
HEAT, POWER, INSURANCE, MANAGEMENT, SALARIES (INCLUDING BONUSES), AND
ALL OTHER INDIRECT CHARGES; (C) A "PROPER PROPORTION" OF INTEREST
ACCRUED ON BONDS, LOANS, OR OTHER DEBTS EXISTING OR PREVIOUSLY MADE,
THE PROCEEDS OF WHICH "SHALL BE USED, OR SHALL HAVE BEEN OR SHALL BE
INVESTED IN PLANT, EQUIPMENT, ETC., THAT SHALL BE USED," IN THE
PERFORMANCE OF THE CONTRACT; (D) A "PROPER PROPORTION" OF TAXES OF ALL
KINDS, EXCEPT FEDERAL TAXES, WITH RESPECT TO THE BUSINESS OR PROPERTY;
(E) A "PROPER PROPORTION" OF PHYSICAL LOSSES SUSTAINED IN CONNECTION
WITH THE CONSTRUCTION OF THE VESSELS UNDER THE CONTRACT, INCLUDING
LOSSES FROM FIRE, FLOOD, STORM, RIOT, VANDALISM, ACTS OF GOD, ACTS OF
WAR, OR OTHER CASUALTIES; AND (F) A "REASONABLE" ALLOWANCE FOR
DEPRECIATION OF PROPERTY AND PLANTS USED IN CONNECTION WITH THE
CONSTRUCTION UNDER THE CONTRACT. 

THE MASTER FOUND THAT, UNDER THE "HALF-SAVINGS" CLAUSE, BETHLEHEM WAS
ENTITLED TO RECEIVE ONE-HALF THE DIFFERENCE BETWEEN THE ESTIMATED COST
AND THE ACTUAL COST, REGARDLESS OF HOW THIS DIFFERENCE WAS ACHIEVED. 
BETHLEHEM WAS THEREFORE NOT REQUIRED TO SHOW THAT THE "SAVINGS" WERE
ATTRIBUTABLE TO ITS EFFORTS TO INCREASE EFFICIENCY. 

SINCE THE ESTIMATED COSTS OF CONSTRUCTION SPECIFIED IN THE CONTRACTS
ARE CRUCIAL IN FIXING THE EXTENT OF BETHLEHEM'S PROFITS, IT IS
NECESSARY TO CONSIDER HOW THEY WERE DETERMINED.  ACCORDING TO THE
EXPLANATION FURNISHED BY BETHLEHEM, BROWN PREPARED THE ESTIMATED COSTS
SPECIFIED IN BETHLEHEM'S LETTER OF DECEMBER 19, 1917, AS FOLLOWS:  AS
THE BASIS OF HIS ESTIMATE HE TOOK THE COST OF CONSTRUCTING HULL 253, A
9,100 TON TANKER WHICH HAD RECENTLY BEEN COMPLETED AT THE FORE RIVER
YARD.  THE COST OF THE MATERIAL IN HULL 253 WAS ABOUT $389,000,
CONSISTING OF $150,000 FOR THE STEEL STRUCTURE AND $239,000 FOR THE
REMAINING MATERIAL.  BROWN ESTIMATED THAT THE COST OF THE MATERIAL IN A
SIMILAR TANKER TO BE CONSTRUCTED IN 1918 WOULD BE $817,000, INCLUDING
$399,000 FOR THE STEEL STRUCTURE AND $418,000 FOR THE REMAINDER.  HIS
ESTIMATE ASSUMED AN INCREASE IN FREIGHT RATES AND COSTS OF DELIVERY OF
42%.  THE NEXT ITEM WAS THE COST OF LABOR, WHICH ON HULL 253 AMOUNTED
TO 38.75 CENTS PER HOUR.  BROWN ASSUMED THAT WAGE SCALES WOULD RISE TO
50 CENTS PER HOUR, AN INCREASE OF 29%, AND THAT EFFICIENCY WOULD
DECREASE ABOUT 30%.  THEREFORE, HE ESTIMATED A TOTAL LABOR COST OF
$548,000, AS COMPARED WITH THE ACTUAL LABOR COST UPON HULL 253 OF
$326,000.  SIMILARLY, THE ESTIMATES OF PLANT OPERATING EXPENSES WERE
COMPUTED ON THE BASIS OF EQUALLY LARGE ASSUMED INCREASES.  THE TOTAL
ESTIMATED COST OF MATERIAL, LABOR, OPERATING EXPENSES, AND OVERHEAD
AMOUNTED TO $1,694,000, TO WHICH BROWN ADDED A FLAT 10% ALLOWANCE TO
COVER ITEMS SUCH AS ARMED GUARD EQUIPMENT AND "TO MAKE ALLOWANCE FOR
OTHER CONTINGENCIES," MAKING A TOTAL ESTIMATED COST OF $1,863,000, OR
APPROXIMATELY $205 PER TON.  TO THIS FIGURE POWELL ADDED AN ADDITIONAL
$10 PER TON BECAUSE, AS HE TESTIFIED, "THERE WAS AN ITEM OF INCREASED
COST OF STEEL, WHICH REPRESENTED A CONTRACT FOR VERY HIGH-PRICED STEEL
THAT WE HAD TO USE IN CONNECTION WITH THIS PROGRAM, AND WHICH AMOUNTED
TO ABOUT $2.50 A TON SPREAD OVER THE PROGRAM THAT WE EXPECTED TO
UNDERTAKE.  THAT WAS A VERY ROUGH FIGURE.  WHATEVER ELSE I PUT ON I PUT
ON BECAUSE I KNEW I WAS GOING TO HAVE TO TRADE THE FINAL CONTRACT OUT
WITH ADMIRAL BOWLES AND I KNEW I WOULD NOT GET WHAT I ASKED FOR, AND IF
I DID NOT ASK FOR MORE THAN I EXPECTED I WOULD NOT GET OUT WHERE I
WANTED TO BE."  BROWN TESTIFIED THAT "HE (POWELL) TOOK THE FIGURES THAT
I GAVE HIM AND ADDED $10 A TON TO IT" FOR SOME REASON WHICH HE COULD
NOT RECALL. 

THE ESTIMATED COST FINALLY SPECIFIED IN THE CONTRACT FOR THE
CONSTRUCTION OF THE THREE VESSELS WAS $1,865,000; THE ESTIMATED COST OF
SUCH VESSELS PROPOSED IN POWELL'S LETTER OF DECEMBER 19, 1917, WAS
$1,983,800, A DIFFERENCE OF $118,800, OR LESS THAN 6% OF THE PROPOSED
ESTIMATE. 

THE MASTER FOUND THAT, DURING THE NEGOTIATIONS, THE FLEET CORPORATION
WAS UNINFORMED AS TO THE PROBABLE COST OF MATERIALS AND LABOR,
BETHLEHEM'S OVERHEAD AND OPERATING EXPENSES, AND DEPRECIATION AND
SIMILAR CHARGES.  CONSEQUENTLY, AT THE CONFERENCE OF JANUARY 3, 1918,
FROM WHICH EMERGED THE CONTRACTS IN CONTROVERSY, THE REPRESENTATIVES OF
THE FLEET CORPORATION DID NOT SUBMIT ANY COUNTER-OFFERS TO BETHLEHEM;
THEY MERELY INSISTED THAT BETHLEHEM'S ESTIMATES WERE TOO HIGH.  BROWN'S
TESTIMONY IS ILLUMINATING AS TO THE NATURE OF THE BARGAINING AT THE
CONFERENCE: 

"Q.  NOW I AM ASKING YOU WHETHER WITH RESPECT TO THOSE VESSELS
ADMIRAL BOWLES SUBMITTED ANY PRICE OF HIS OWN? 

"A.  NO, SIR. 

"Q.  DID HE ASK YOU HOW YOUR ESTIMATES WERE MADE UP? 

"A.  NO, SIR. 

"Q.  DID HE ASK YOU TO JUSTIFY YOUR ESTIMATES IN ANY WAY? 

"A.  NO, SIR. 

"Q.  HE JUST OBJECTED TO THEM REPEATEDLY AND SAID THEY WERE TOO
HIGH? 

"A.  YES, SIR. 

"Q.  BUT DID NOT ASK YOU TO JUSTIFY THEM? 

"A.  NO, SIR. 

"Q.  UNTIL POWELL FINALLY CAME DOWN TO A FIGURE WHICH BOWLES WAS
WILLING TO ACCEPT? 

"A.  WELL, I SHOULD PUT IT THIS WAY; TO A FIGURE WHICH MR. POWELL
REFUSED TO GO BELOW." 

THE TOTAL ESTIMATED COSTS OF CONSTRUCTION IN THE THIRTEEN CONTRACTS
IN CONTROVERSY AMOUNTED TO $119,750,000.  THE TOTAL ACTUAL COSTS, AS
DEFINED IN THE CONTRACTS, WERE $92,990,521.  THE ESTIMATED COSTS
THEREFORE EXCEEDED THE ACTUAL COSTS BY $26,759,479, OR, TO PUT IT
ANOTHER WAY, THE ESTIMATED COSTS WERE ALMOST 29% GREATER THAN ACTUAL
COSTS.  NOWHERE IN THE LONG RECORD, AS THE MASTER FOUND, IS THERE ANY
EXPLANATION OR JUSTIFICATION FOR THE TREMENDOUS DISPARITY BETWEEN THE
ESTIMATED COSTS SUBMITTED BY BETHLEHEM, OR THOSE SPECIFIED IN THE
CONTRACTS, AND THE ACTUAL COSTS. 

BETHLEHEM'S PROFITS UNDER THESE CONTRACTS AMOUNT TO APPROXIMATELY
$24,000,000, OR ABOUT 22% OF ACTUAL COSTS INCLUDING EXTRA WORK.  IN TWO
OF THESE CONTRACTS, NOS. 191 AND 226, ITS PROFITS EXCEED 34% AND 32%,
RESPECTIVELY.  MOREOVER THESE FIGURES DO NOT INCLUDE THE PROFITS MADE
BY BETHLEHEM STEEL COMPANY, AN AFFILIATE, ON THE SALES TO BETHLEHEM AT
THE MAXIMUM PRICES PERMITTED BY THE WAR INDUSTRIES BOARD OF 43,000 TONS
OF STEEL USED IN THE CONSTRUCTION OF SHIPS UNDER THESE CONTRACTS. 

TO SPEAK OF BETHLEHEM'S PROFITS AS ONLY 22% IS IN ANY EVENT
MISLEADING.  THE PROFITS ARE 22% OF "COST," AND NOT 22% OF WHAT MIGHT
FAIRLY BE DESCRIBED AS BETHLEHEM'S CAPITAL INVESTMENT IN THESE
CONTRACTS.  FOR UNDER THESE CONTRACTS BETHLEHEM TOOK ABSOLUTELY NO RISK
OF LOSS; IN ADDITION, THE GOVERNMENT AGREED TO ADVANCE ALL SUMS
NECESSARY TO FINANCE THE CONSTRUCTION OF THE VESSELS.  EVEN IN USURIOUS
TRANSACTIONS THE LENDER TAKES THE RISK OF THE BORROWER'S INSOLVENCY. 
HERE BETHLEHEM TOOK NO RISKS AT ALL. 

BETHLEHEM HAS ALREADY RECEIVED FROM THE GOVERNMENT THE TOTAL COSTS OF
CONSTRUCTION (INCLUDING ITEMS FOR WAGE INCREASES AND EXTRA WORK), PLUS
FIXED PROFITS OF $11,962,400(REPRESENTING ABOUT 11% OF THE ACTUAL COSTS
INCLUDING EXTRA CHARGES), PLUS BONUSES OF $8,093,157 UNDER THE HALF
SAVINGS CLAUSE (OVER 7% OF COSTS).  IT HAS THUS RECEIVED TOTAL PROFITS
OF MORE THAN $20,000,000 UNDER THESE CONTRACTS.  IN THE PRESENT SUITS
IT IS SEEKING ADDITIONAL SUMS OF MORE THAN $7,500,000, OF WHICH ABOUT
$3,800,000 REPRESENTS BONUSES UNDER THE CONTRACTS IN QUESTION.  IN
SUSTAINING THE JUDGMENTS OF THE LOWER COURTS, THIS COURT IS AWARDING
BETHLEHEM FURTHER PROFITS OF ABOUT 4% ON THESE CONTRACTS. 

THE MASTER EXPRESSLY FOUND THAT IT WAS ESSENTIAL THAT BETHLEHEM
UNDERTAKE TO BUILD THE VESSELS PROVIDED FOR IN THE CONTRACTS, AND THAT,
SINCE THE GOVERNMENT NEEDED BETHLEHEM'S ORGANIZATION, IT HAD NO
SATISFACTORY ALTERNATIVE.  IT HAD TO MAKE THE CONTRACTS ON BETHLEHEM'S
TERMS OR NOT AT ALL.  HE CONCLUDED, NEVERTHELESS, THAT SINCE "THE FLEET
CORPORATION MADE THE CONTRACTS WITH OPEN EYES, ALTHOUGH RESENTING THE
COMMERCIAL ATTITUDE OF BETHLEHEM AND CONDEMNING BETHLEHEM FOR DEMANDING
ITS 'POUND OF FLESH'," THE CONTRACTS WERE ENFORCEABLE BY BETHLEHEM IN
THE ABSENCE OF ANY PROOF OF FRAUD. 

THE DISTRICT COURT CONCURRED IN THE PROPOSITION THAT THE ABSENCE OF
FRAUD MADE THE CONTRACTS INVULNERABLE.  BUT ITS CONCLUSION IS
CONTRADICTED BY ITS FINDINGS:  "THE MANAGERS FOR THE CONTRACTOR ADOPTED
THE FAMOUS ROB ROY DISTINCTION WHO ADMITTED HE WAS A ROBBER BUT PROUDLY
PROCLAIMED THAT HE WAS NO THIEF.  THE CONTRACTOR BOLDLY AND OPENLY
FIXED THE FIGURES IN THE ESTIMATED COST SO HIGH AS TO GIVE THEM THE
PROMISE OF LARGE BONUS PROFITS.  THE MANAGERS FOR THE FLEET CORPORATION
KNEW THAT THE ESTIMATE WAS HIGH AND WHY IT WAS MADE HIGH AND SO
PROTESTED IT. THE REPLY OF THE CONTRACTOR'S MANAGERS WAS, 'WE WILL TAKE
THE CONTRACT WITH THIS PROMISE OF BONUS PROFITS INCORPORATED IN IT BUT
NOT OTHERWISE.  YOU TAKE IT OR LEAVE IT'.  WHATEVER WRONG THERE WAS IN
THIS MAY HAVE BEEN THE WRONG IN A DAYLIGHT ROBBERY BUT THERE WAS NO
ELEMENT OF DECEPTION IN IT."  23 F.SUPP.  676, 679. 

SIMILARLY, THE AFFIRMANCE OF THE CIRCUIT COURT OF APPEALS APPEARS TO
HAVE BEEN BASED UPON THE ASSUMPTION THAT THE GOVERNMENT'S FAILURE TO
SHOW FRAUD WAS FATAL:  "IT IS OF COURSE OBVIOUS THAT THESE NEGOTIATIONS
TOOK PLACE IN TIME OF WAR WHEN THE NEED OF THE GOVERNMENT FOR SHIPS WAS
EXTREMELY URGENT AND THE NECESSITY OF REACHING AN AGREEMENT WITH
BETHLEHEM, THEREFORE, VITAL.  IT IS EQUALLY CLEAR THAT BETHLEHEM
INSISTED UPON ASSURING ITSELF A MARGIN OF PROFIT WHICH IN VIEW OF THE
NECESSITIES OF THE GOVERNMENT WAS SO LARGE AS TO INDICATE AN ATTITUDE
OF COMMERCIAL GREED BUT LITTLE DILUTED WITH PATRIOTIC FEELING.  THERE
IS NO DOUBT THAT THIS ATTITUDE ON THE PART OF BETHLEHEM WAS DEEPLY
RESENTED BY THE GOVERNMENT REPRESENTATIVES BUT THE LATTER WERE FACED
WITH THE ALTERNATIVE OF EITHER AGREEING TO BETHLEHEM'S TERMS OR TAKING
POSSESSION OF ITS SHIPYARDS AND HAVING THE GOVERNMENT ITSELF CONSTRUCT
THE VESSELS.  WE THINK THE RECORD CLEARLY INDICATES THAT THE GOVERNMENT
REPRESENTATIVES FELT THAT THE LATTER COURSE COULD NOT HAVE ACCOMPLISHED
THE SHIPBUILDING PROGRAM WITH THE SPEED WHICH WAS ESSENTIAL.  IT WAS
BETHLEHEM'S EXISTING SHIPBUILDING ORGANIZATION THAT WAS NECESSARY TO
INSURE SUCCESS TO THE PROGRAM OF THE FLEET CORPORATION.  CONSEQUENTLY
THE GOVERNMENT REPRESENTATIVES, FEELING AS THEY DID THAT BETHLEHEM'S
ORGANIZATION WAS NECESSARY TO THEIR PROGRAM, WERE OBLIGED TO ACCEPT THE
TERMS OFFERED BY BETHLEHEM.  THIS THEY DID WITH FULL KNOWLEDGE, AS WE
HAVE SAID, THAT THE ESTIMATED COST FIGURES INCLUDED IN THE CONTRACTS
DID NOT REPRESENT CLOSE APPROXIMATIONS BUT WERE SO PREPARED AS TO
ASSURE TO BETHLEHEM SUBSTANTIAL ADDITIONAL PROFITS BY WAY OF THE BONUS
FOR SAVINGS.  IT FOLLOWS THAT WHILE BETHLEHEM MAY BE CONDEMNED FOR
HAVING TAKEN ADVANTAGE OF THE NATION'S NECESSITIES TO SECURE INORDINATE
PROFITS IT CANNOT BE CHARGED WITH HAVING MISREPRESENTED THE FACTS TO
THE GOVERNMENT'S REPRESENTATIVES."  113 F.2D 301, 305-06. 

THUS, NOT LESS THAN SIX TIMES DID THE CIRCUIT COURT OF APPEALS
DECLARE THAT THE UNCONSCIONABLE TERMS OF THIS CONTRACT WERE FORCED UPON
THE GOVERNMENT BY THE DIRE NECESSITIES OF NATIONAL SELF-PRESERVATION. 
NEVERTHELESS THE COURT FOUND ITSELF IMPOTENT TO RESIST THE DEMAND THAT
THE COURTS THEMSELVES BECOME THE MEANS OF REALIZING THESE "INORDINATE
PROFITS."  BUT LAW DOES NOT SUBJECT COURTS TO SUCH IMPOTENCE.  COURTS
NEED NOT BE THE AGENTS OF A WRONG THAT OFFENDS THEIR CONSCIENCE IF THEY
HEED THE COMMANDS OF LAW. 

IN ENGLAND PRIOR TO 1285(STATUTE OF WESTMINSTER II, 13 EDW.  I, C.
50) SUITORS WERE FREQUENTLY "OBLIGED TO DEPART FROM THE CHANCERY
WITHOUT GETTING WRITS, BECAUSE THERE ARE NONE WHICH WILL EXACTLY FIT
THEIR CASES, ALTHOUGH THESE CASES FALL WITHIN ADMITTED PRINCIPLES." 
MAITLAND, FORMS OF ACTION AT COMMON LAW, LECT.  IV (1936 ED.)  P. 51. 
TODAY IT IS HELD THAT BECAUSE THE CIRCUMSTANCES OF THIS CASE CANNOT BE
FITTED INTO A NEATLY CARVED PIGEONHOLE IN THE LAW OF CONTRACTS,
"DAYLIGHT ROBBERY," EXPLOITATION OF THE "NECESSITIES" OF THE COUNTRY AT
WAR, MUST BE CONSUMMATED BY THIS COURT.  IT IS SAID THAT FAMILIAR
PRINCIPLES WOULD BE OUTRAGED IF BETHLEHEM WERE DENIED RECOVERY ON THESE
CONTRACTS.  BUT IS THERE ANY PRINCIPLE WHICH IS MORE FAMILIAR OR MORE
FIRMLY EMBEDDED IN THE HISTORY OF ANGLO-AMERICAN LAW THAN THE BASIC
DOCTRINE THAT THE COURTS WILL NOT PERMIT THEMSELVES TO BE USED AS
INSTRUMENTS OF INEQUITY AND INJUSTICE?  DOES ANY PRINCIPLE IN OUR LAW
HAVE MORE UNIVERSAL APPLICATION THAN THE DOCTRINE THAT COURTS WILL NOT
ENFORCE TRANSACTIONS IN WHICH THE RELATIVE POSITIONS OF THE PARTIES ARE
SUCH THAT ONE HAS UNCONSCIONABLY TAKEN ADVANTAGE OF THE NECESSITIES OF
THE OTHER? 

THESE PRINCIPLES ARE NOT FOREIGN TO THE LAW OF CONTRACTS.  FRAUD AND
PHYSICAL DURESS ARE NOT THE ONLY GROUNDS UPON WHICH COURTS REFUSE TO
ENFORCE CONTRACTS.  THE LAW IS NOT SO PRIMITIVE THAT IT SANCTIONS EVERY
INJUSTICE EXCEPT BRUTE FORCE AND DOWNRIGHT FRAUD.  MORE SPECIFICALLY,
THE COURTS GENERALLY REFUSE TO LEND THEMSELVES TO THE ENFORCEMENT OF A
"BARGAIN" IN WHICH ONE PARTY HAS UNJUSTLY TAKEN ADVANTAGE OF THE
ECONOMIC NECESSITIES OF THE OTHER.  "AND THERE IS GREAT REASON AND
JUSTICE IN THIS RULE, FOR NECESSITOUS MEN ARE NOT, TRULY SPEAKING, FREE
MEN, BUT, TO ANSWER A PRESENT EXIGENCY, WILL SUBMIT TO ANY TERMS THAT
THE CRAFTY MAY IMPOSE UPON THEM."  VERNON V. BETHELL, 2 EDEN 110, 113. 
SO WROTE LORD CHANCELLOR NORTHINGTON IN 1761.    THE FACT THAT THE
REPRESENTATIVES OF THE GOVERNMENT ENTERED INTO THE CONTRACTS "WITH
THEIR EYES WIDE OPEN" DOES NOT MEAN THAT THEY WERE NOT ACTING UNDER
COMPULSION.  "IT ALWAYS IS FOR THE INTEREST OF A PARTY UNDER DURESS TO
CHOOSE THE LESSER OF TWO EVILS.  BUT THE FACT THAT A CHOICE WAS MADE
ACCORDING TO INTEREST DOES NOT EXCLUDE DURESS.  IT IS THE
CHARACTERISTIC OF DURESS PROPERLY SO CALLED."  HOLMES, J., IN UNION
PACIFIC R. CO. V. PUBLIC SERVICE COMM'N, 248 U.S. 67, 70.  IN THAT CASE
A STATE UNCONSTITUTIONALLY EXACTED A FEE FOR A CERTIFICATE OF AUTHORITY
TO ISSUE RAILROAD BONDS.  A RAILROAD WHICH HAD PAID THE FEE AND
OBTAINED A CERTIFICATE, RATHER THAN RUN THE RISK OF SUBSEQUENT
INVALIDATION OF ITS BONDS AND IMPOSITION OF SERIOUS PENALTIES, WAS HELD
TO HAVE BEEN COERCED INTO MAKING THE PAYMENTS.  IN SWIFT COMPANY V.
UNITED STATES, 111 U.S. 22, 29, THE TAXPAYER'S ONLY ALTERNATIVES WERE
"TO SUBMIT TO AN ILLEGAL EXACTION, OR DISCONTINUE ITS BUSINESS."  THE
PAYMENT OF THE TAX IN THESE CIRCUMSTANCES WAS HELD TO BE UNDER DURESS. 
SEE ALSO WARD V. LOVE COUNTY, 253 U.S. 17, 23.  THE COURTS GENERALLY
REGARD THE DILEMMA OF THE TAXPAYER WHO MUST EITHER PAY THE TAXES OR
INCUR SERIOUS BUSINESS LOSSES AS A SPECIES OF DURESS.  E.G., MORGAN V.
PALMER, 2 BARN.  & C. 729; RIPLEY V. GELSTON, 9 JOHNS.  201; SCOTTISH
U. & N. INS. CO. V. HERRIOTT, 109 IOWA 606, 80 N.W. 665; SEE NOTES, 64
A.L.R. 9, 84 A.L.R. 294. 

UNDERLYING ALL THESE CASES IS THE LAW'S RECOGNITION OF A BASIC
PSYCHOLOGICAL TRUTH.  IN ATKINSON V. DENBY, 7 HURLST.  & N. 934, 936,
COCKBURN, C.J., SAID THAT "WHERE THE ONE PERSON CAN DICTATE, AND THE
OTHER HAS NO ALTERNATIVE BUT TO SUBMIT, IT IS COERCION."  SEE ALSO
ABBOTT, C. J., IN MORGAN V. PALMER, 2 BARN.  & C. 729, 735:  "BUT IF
ONE PARTY HAS THE POWER OF SAYING TO THE OTHER, 'THAT WHICH YOU REQUIRE
SHALL NOT BE DONE EXCEPT UPON THE CONDITIONS WHICH I CHOOSE TO IMPOSE,'
NO PERSON CAN CONTEND THAT THEY STAND UPON ANYTHING LIKE AN EQUAL
FOOTING."  AND THESE WERE DECISIONS IN DAYS WHEN LAW WAS SUPPOSED TO BE
MUCH MORE RIGID AND MORE RESPECTFUL OF FORMS THAN WE NOW ORDINARILY
DEEM JUST. 

THE FUNDAMENTAL PRINCIPLE OF LAW THAT THE COURTS WILL NOT ENFORCE A
BARGAIN WHERE ONE PARTY HAS UNCONSCIONABLY TAKEN ADVANTAGE OF THE
NECESSITIES AND DISTRESS OF THE OTHER HAS FOUND EXPRESSION IN AN ALMOST
INFINITE VARIETY OF CASES.  SEE LONERGAN V. BUFORD, 148 U.S. 581, 589
91; SNYDER V. ROSENBAUM, 215 U.S. 261, 265-66.  PERHAPS THE MOST
FAMILIAR IS THE SITUATION OF THE MORTGAGOR WHO UNDER THE PRESSURE OF
FINANCIAL DISTRESS CONVEYS HIS EQUITY OF REDEMPTION TO THE MORTGAGEE. 
THE COURTS WILL SCRUTINIZE THE TRANSACTION VERY CAREFULLY, VILLA V.
RODRIGUEZ, 12 WALL.  323, 339, AND IF IT APPEARS THAT THE MORTGAGEE HAS
TAKEN UNFAIR ADVANTAGE OF THE OTHER'S POSITION, THE CONVEYANCE WILL NOT
BE ENFORCED.  COMPARE VERNON V. BETHELL, 2 EDEN 110; CLOSE V. PHIPPS, 7
M. & G. 586; RICHARDSON V. BARRICK, 16 IOWA 407. 

SIMILARLY, AN HEIR OR REMAINDERMAN WHO IS COMPELLED BY FINANCIAL
CIRCUMSTANCES TO SELL HIS EXPECTANCY FOR A SONG MAY RECOVER IT IF THE
VENDEE HAS UNDULY EXPLOITED THE OTHER'S DISTRESS.  WOOD V. ABREY, 3
MADDOCK'S CHAN.  216, 219(WHERE THE VICE-CHANCELLOR, SIR JOHN LEACH,
SAID:  "IF A MAN WHO MEETS HIS PURCHASER ON EQUAL TERMS, NEGLIGENTLY
SELLS HIS ESTATE AT AN UNDER VALUE, HE HAS NO TITLE TO RELIEF IN
EQUITY.  BUT A COURT OF EQUITY WILL INQUIRE WHETHER THE PARTIES REALLY
DID MEET ON EQUAL TERMS; AND IF IT BE FOUND THAT THE VENDOR WAS IN
DISTRESSED CIRCUMSTANCES, AND THAT ADVANTAGE WAS TAKEN OF THAT
DISTRESS, IT WILL AVOID THE CONTRACT."); UNDERHILL V. HORWOOD, 10 VES. 
JR. 209; M'KINNEY V. PINCKARD, 29 VA. 149; BUTLER V. DUNCAN, 47 MICH.
94, 10 N.W. 123; BROWN V. HALL, 14 R.I. 249.  IN ADMINISTRATORS OF
HOUGH V. HUNT, 2 OHIO 495, 502, A PERSON HEAVILY IN DEBT, IN ORDER TO
OBTAIN A FURTHER LOAN WITH WHICH TO MEET DEBTS FALLING DUE, AGREED TO
BUY LAND AT MORE THAN DOUBLE ITS VALUE.  THE COURT FOUND THAT THE
LENDER HAD UNJUSTLY TAKEN ADVANTAGE OF THE BORROWER'S NECESSITIES AND
THEREFORE RESCINDED THE CONTRACT:  "THE RULE IN CHANCERY IS WELL
ESTABLISHED.  WHEN A PERSON IS INCUMBERED WITH DEBTS, AND THAT FACT IS
KNOWN TO A PERSON WITH WHOM HE CONTRACTS, WHO AVAILS HIMSELF OF IT TO
EXACT AN UNCONSCIONABLE BARGAIN, EQUITY WILL RELIEVE UPON ACCOUNT OF
THE ADVANTAGE AND HARDSHIP."  THIS WAS WRITTEN IN 1826.  TO THE SAME
EFFECT ARE VYNE V. GLENN, 41 MICH. 112, AND BITHER V. PACKARD, 115
MAINE 306, 98 A. 929. 

ANOTHER CLASS OF CASES IN WHICH THIS PRINCIPLE HAS BEEN APPLIED
ARISES WHERE A CUSTOMER OF A GAS OR ELECTRIC COMPANY PAYS CHARGES WHICH
HE ASSERTS HE IS NOT OBLIGATED TO PAY, RATHER THAN HAVE HIS SERVICE
DISCONNECTED.  PAYMENTS MADE IN SUCH CIRCUMSTANCES ARE REGARDED AS
COERCED.  SEE BOSTON V. EDISON ELECTRIC ILLUMINATING CO., 242 MASS.
305, 310, 136 N.E. 113; WESTLAKE & BUTTON V. ST. LOUIS, 77 MO. 47;
NOTE, 34 A.L.R. 185. 

COBB V. CHARTER, 32 CONN. 358, ILLUSTRATES ANOTHER TYPE OF
CONTROVERSY IN WHICH THE COURTS HAVE GIVEN EFFECT TO THE HISTORIC
PRINCIPLE OF DURESS WHICH IS NOW SEEMINGLY REJECTED AS AN INNOVATION. 
THE DEFENDANT THERE HAD POSSESSION OF A CHEST OF TOOLS BELONGING TO THE
PLAINTIFF, A MECHANIC.  HE REFUSED TO GIVE UP THE CHEST, WHICH THE
PLAINTIFF NEEDED IN ORDER TO PLY HIS TRADE, UNLESS THE LATTER WOULD PAY
A BILL FOR WHICH HE DENIED RESPONSIBILITY.  THE PLAINTIFF'S PAYMENT OF
THE BILL IN THESE CIRCUMSTANCES WAS HELD TO HAVE BEEN MADE UNDER
DURESS.  ACCORD:  LONERGAN V. BUFORD, 148 U.S. 581, 589-91; FENWICK
SHIPPING CO. V. CLARKE BROS., 133 GA. 43, 65 S.E. 140; STENTON V.
JEROME, 54 N.Y. 480; HARMONY V. BINGHAM, 12 N.Y. 99. 

IN STIEFLER V. MCCULLOUGH, 97 IND. APP. 123, 174 N.E. 823, A MERCHANT
WHO HAD TO OBTAIN A LOAN IN ORDER TO REMAIN IN BUSINESS AGREED TO PAY
THE PRESIDENT OF A BANK AN EXORBITANT SUM IN CONSIDERATION FOR HIS
SERVICES IN PROCURING A LOAN.  THE COURT REFUSED TO ENFORCE THIS
AGREEMENT AS UNCONSCIONABLE.  SIMILARLY, IN NIEDERMEYER V. CURATORS OF
STATE UNIVERSITY, 61 MO. APP. 654, A STUDENT PAID TUITION FEES WHICH HE
REGARDED AS EXCESSIVE, AND WHICH HE DID NOT BELIEVE HE WAS REQUIRED TO
PAY UNDER HIS CONTRACT WITH THE UNIVERSITY, ONLY BECAUSE HE FEARED
EXPULSION FOR NON-PAYMENT.  THIS PAYMENT WAS HELD TO HAVE BEEN MADE
UNDER DURESS AND HENCE RECOVERABLE.  CF. BALDWIN V. SULLIVAN TIMBER
CO., 20 N.Y. SUPP. 496; KELLY V. CAPLICE, 23 KAN. 474. 

STRIKINGLY ANALOGOUS TO THE CASE AT BAR ARE THE DECISIONS THAT A
SALVOR WHO TAKES ADVANTAGE OF THE HELPLESSNESS OF THE SHIP IN DISTRESS
TO DRIVE AN UNCONSCIONABLE BARGAIN WILL NOT BE AIDED BY THE COURTS IN
HIS ATTEMPTS TO ENFORCE THE BARGAIN.  POST V. JONES, 19 HOW.  150, 160;
THE TORNADO, 109 U.S. 110, 117; THE ELFRIDA, 172 U.S. 186, 193-94.  IN
POST V. JONES, SUPRA, IT WAS SAID THAT THE COURTS "WILL NOT TOLERATE
THE DOCTRINE THAT A SALVOR CAN TAKE THE ADVANTAGE OF HIS SITUATION, AND
AVAIL HIMSELF OF THE CALAMITIES OF OTHERS TO DRIVE A BARGAIN; NOR WILL
THEY PERMIT THE PERFORMANCE OF A PUBLIC DUTY TO BE TURNED INTO A
TRAFFIC OF PROFIT."  THESE CASES ARE NOT UNLIKE THE FAMILIAR EXAMPLE OF
THE DROWNING MAN WHO AGREES TO PAY AN EXORBITANT SUM TO A RESCUER WHO
WOULD OTHERWISE PERMIT HIM TO DROWN.  NO COURT WOULD ENFORCE A CONTRACT
MADE UNDER SUCH CIRCUMSTANCES.  FN2 

TO DENY THE EXISTENCE OF DURESS IN A GOVERNMENT CONTRACT BY IRONIC
REFERENCE TO THE FEEBLENESS OF THE UNITED STATES AS AGAINST THE
OVERPOWERING STRENGTH OF A SINGLE PRIVATE CORPORATION IS AN INDULGENCE
OF RHETORIC IN DISREGARD OF FACT.  THE UNITED STATES WITH ALL ITS MIGHT
AND MAJESTY NEVER MAKES A CONTRACT.  TO SPEAK OF A CONTRACT BY THE
UNITED STATES IS TO EMPLOY AN ABSTRACTION.  WE MUST NOT ALLOW IT TO
BECOME A BLINDING ABSTRACTION.  CONTRACTS ARE MADE NOT BY 130 MILLION
AMERICANS BUT BY SOME OFFICIAL ON THEIR BEHALF.  BECAUSE THE NATIONAL
INTEREST IS REPRESENTED NOT BY THE POWER OF THE NATION BUT BY AN
INDIVIDUAL PROFESSING TO EXERCISE AUTHORITY OF VAST CONSEQUENCE TO THE
NATION, ACTION BY GOVERNMENT OFFICIALS IS OFTEN NOT BINDING AGAINST THE
GOVERNMENT IN SITUATIONS WHERE PRIVATE PARTIES WOULD BE BOUND.  FN3
THE CONTRACTS HERE WERE NOT MADE BY AN ABSTRACTION KNOWN AS THE UNITED
STATES OR BY THE MILLIONS OF ITS CITIZENS.  FOR ALL PRACTICAL PURPOSES,
THE ARRANGEMENT WAS ENTERED INTO BY TWO PERSONS, BOWLES AND RADFORD. 
AND IT WAS ENTERED INTO BY THEM AGAINST THEIR BETTER JUDGMENT BECAUSE
THEY HAD ONLY HOBSON'S CHOICE - WHICH IS NO CHOICE.  THEY HAD NO CHOICE
IN VIEW OF THE CIRCUMSTANCES WHICH SUBORDINATED THEM AND BY WHICH THEY
WERE GOVERNED, NAMELY, THAT SHIPS WERE NEEDED, AND NEEDED QUICKLY, AND
BETHLEHEM WAS NEEDED TO CONSTRUCT THEM QUICKLY.  THE LEGAL ALTERNATIVE
THAT THE GOVERNMENT TAKE OVER BETHLEHEM - WAS NOT AN ACTUAL
ALTERNATIVE, AND BETHLEHEM KNEW THIS AS WELL AS THE REPRESENTATIVES OF
THE GOVERNMENT. 

THE SUGGESTION IS MADE THAT BETHLEHEM'S PROFITS UNDER THESE CONTRACTS
WERE NOT EXCEPTIONAL WHEN COMPARED WITH THE PROFITS MADE UNDER SIMILAR
CONTRACTS, AND THAT THE ENORMOUS PROFITS CLAIMED BY BETHLEHEM UNDER
THESE CONTRACTS CANNOT BE REGARDED AS SUPPORTING THE INFERENCE THAT
BETHLEHEM TOOK ADVANTAGE OF THE GOVERNMENT'S DISTRESS.  BUT THE ONLY
CONTRACTS BEFORE US ARE THOSE INVOLVED IN THIS LITIGATION.  THERE IS
NOTHING IN THIS RECORD WHICH ENABLES US TO SAY THAT ALTHOUGH THESE
CONTRACTS ARE UNCONSCIONABLE, ALL CONTRACTS MADE BY THE GOVERNMENT
DURING THE SAME PERIOD WERE NO LESS UNCONSCIONABLE.  AND EVEN IF THIS
WERE SO, IT WOULD BE NO ARGUMENT THAT THIS COURT SHOULD GIVE ITS
SANCTION TO THESE CONTRACTS BY MAKING ITSELF THE INSTRUMENT FOR
REALIZING THE UNCONSCIONABLE PROFITS.  WHAT LITTLE LIGHT THE RECORD
DOES CAST UPON CONTEMPORARY CONTRACTS GIVES NO JUSTIFICATION FOR
REGARDING THESE CONTRACTS AS TYPICAL.  THE POLICY OF CHARLES M. SCHWAB,
DIRECTOR GENERAL OF THE FLEET CORPORATION, WAS TO MAKE CONTRACTS
PROVIDING FOR A MAXIMUM PROFIT OF 10%, OUT OF WHICH ALL FEDERAL TAXES
WOULD HAVE TO BE PAID.  SEE LETTER OF OCT. 2, 1918, TO EDWARD N.
HURLEY, CHAIRMAN OF THE SHIPPING BOARD, RELATING TO CONTRACTS WITH THE
AMERICAN SHIPBUILDING COMPANY. 

IF WE ARE TO GO OUTSIDE THE RECORD, THE EVIDENCE IS CONFUSING AND
UNRELIABLE.  IT MUST BE BORNE IN MIND THAT BETHLEHEM TOOK NO RISK OF
LOSS, THAT UNDER THE CONTRACTS IT WAS PROTECTED FROM THE RISKS OF
RISING COSTS OF LABOR, MATERIALS, TRANSPORTATION, ETC., THAT UNDER THE
CONTRACTS IT WAS NOT REQUIRED TO MAKE ANY CAPITAL EXPENDITURES, THAT
THE GOVERNMENT AGREED TO ADVANCE ALL SUMS THAT SHOULD BE NECESSARY FOR
THE PERFORMANCE OF THE CONTRACTS.  IT IS IDLE TO COMPARE THE PROFITS
MADE BY BETHLEHEM UNDER THESE CONTRACTS WITH PROFITS MADE BY INDUSTRIAL
CONCERNS OF VARIOUS TYPES UNDER DIFFERENT TYPES OF CONTRACTS.  SUCH
FIGURES ARE STATISTICAL QUICKSAND UNLESS WE ARE TOLD ALSO THAT IN EACH
CASE THE CONTRACTOR WAS NOT REQUIRED TO MAKE ANY CAPITAL INVESTMENT,
THAT HE WAS INSURED AGAINST NORMAL BUSINESS RISKS, AND THAT HE WAS
GUARANTEED A PROFIT, REGARDLESS OF ANY CHANGE IN CIRCUMSTANCES. 

WE KNOW THAT THE POLICY OF THE NAVY DEPARTMENT WITH RESPECT TO SO
CALLED STRAIGHT COST-PLUS SHIPBUILDING CONTRACTS WAS TO ALLOW PROFITS
OF 10% OF ACTUAL COST.  SEE ANNUAL REPORT OF THE SECRETARY OF THE NAVY
(1917) P. 33; ANNUAL REPORT (1918) P. 685; ANNUAL REPORT (1919) PP. 572
76; ANNUAL REPORT (1920) PP. 147-48.  WE KNOW THAT, SIMILARLY, THE
POLICY OF THE WAR DEPARTMENT WITH RESPECT TO COST-PLUS CONTRACTS FOR
THE CONSTRUCTION OF CANTONMENTS WAS TO ALLOW PROFITS NOT EXCEEDING 10%
OF COST.  SEE ANNUAL REPORT OF THE SECRETARY OF WAR (1917) VOL. 1, P.
28; ANNUAL REPORT (1918) VOL. 1, P. 1319; ANNUAL REPORT (1919) PP. 4138
42.  SEE ALSO CROWELL, GOVERNMENT WAR CONTRACTS, P. 85(IN "EMERGENCY
BUILDING CONTRACTS" A SLIDING SCALE OF PROFITS WAS EMPLOYED, RANGING
FROM COST PLUS 7% ON CONTRACTS LESS THAN $100,000 TO COST PLUS 2 1/2%
ON CONTRACTS MORE THAN $10,000,000).  SIMILARLY, CONTRACTS FOR THE
CONSTRUCTION OF BUILDINGS TO HOUSE WAR WORKERS WERE LET ON THE BASIS OF
COST PLUS 2 1/2% ON CONTRACTS OVER $1,000,000, AND 3 1/2% ON CONTRACTS
UNDER $1,000,000.  SEE TESTIMONY OF OTTO M. EIDLITZ, PRESIDENT OF THE
U.S. HOUSING CORPORATION, HEARINGS BEFORE THE SUBCOMMITTEE OF THE
SENATE COMMITTEE ON PUBLIC BUILDINGS AND GROUNDS PURSUANT TO S. RES.
371, 65TH CONG., 3D SESS., P. 35. 

THESE STATISTICS OBVIOUSLY DO NOT TELL THE WHOLE STORY OF GOVERNMENT
CONTRACTS IN THE LAST WAR.  BUT THEY INDICATE PLAINLY ENOUGH THAT THIS
COURT SHOULD NOT ACCEPT, AS A BASIS FOR DECISION IN THIS CASE, THE
PREMISE THAT BETHLEHEM'S PROFITS WERE CONVENTIONAL WHEN COMPARED WITH
PROFITS MADE IN COMPARABLE TRANSACTIONS. 

IT IS SAID, FURTHER, THAT EVEN IF THESE CONTRACTS ARE UNENFORCEABLE
WHEN MEASURED BY STANDARDS OF JUSTICE AND EQUITY ENFORCED BY THE COURTS
FOR CENTURIES, NEVERTHELESS THIS COURT MUST ENFORCE THE CONTRACTS NOW
BEFORE US BECAUSE CONGRESS AND THE PRESIDENT SPECIFICALLY AUTHORIZED
SUCH A TRAFFIC IN PROFITS.  THE SUGGESTION IS NOT CONSISTENT WITH
HISTORICAL FACT. 

THE LEGISLATIVE HISTORY OF THE EMERGENCY SHIPPING FUND ACT FURNISHES
NO SUPPORT FOR THE CONTENTION THAT, IN CONFERRING UPON THE PRESIDENT
AUTHORITY TO ENTER INTO CONTRACTS FOR THE CONSTRUCTION OF SHIPS,
CONGRESS THEREBY COMMANDED THE COURTS TO ENFORCE ALL CONTRACTS THAT
WERE MADE, WITHOUT REGARD TO THEIR PROVISIONS AND THE CIRCUMSTANCES
UNDER WHICH THEY WERE NEGOTIATED.  ON THE CONTRARY, THE DEBATES CONTAIN
MANY INDICATIONS THAT CONGRESS EXPECTED THAT THE SHIPBUILDERS OF THE
NATION WOULD PROVIDE THEIR SERVICES FOR A REASONABLE COMPENSATION, AND
THAT THE POWER CONFERRED UPON THE PRESIDENT TO TAKE OVER SHIPYARDS
WOULD NOT BE EXERCISED.  SEE REMARKS OF SENATOR KNOX, 55 CONG. REC.
2518; SENATOR CALDER, 55 ID. 2529; REP. FITZGERALD, 55 ID. 3018. 
INDEED, THE ACT ITSELF SPECIFIED THAT SHIPS SHOULD BE BUILT "AT SUCH
REASONABLE PRICE AS SHALL BE DETERMINED BY THE PRESIDENT."  40 STAT.
182, 183.    THE NATIONAL DEFENSE ACT, 39 STAT. 166, 213, SPECIFICALLY
PROVIDED THAT "THE COMPENSATION TO BE PAID TO ANY INDIVIDUAL, FIRM,
...  FOR ITS PRODUCTS OR MATERIAL, OR AS RENTAL FOR USE OF ANY
MANUFACTURING PLANT WHILE USED BY THE UNITED STATES, SHALL BE FAIR AND
JUST."  THERE CAN BE NO CLEARER INDICATION THAT CONGRESS DID NOT
AUTHORIZE OR APPROVE ANY POLICY OF TRAFFICKING IN PROFITS.  THE FACT
THAT CONGRESS TOOK CARE TO ASCERTAIN WHETHER THE WAR AGENCIES WERE
LETTING CONTRACTS UNDER WHICH EXCESSIVE PROFITS WERE BEING MADE, SEE
HEARINGS BEFORE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS
ON H.R. 3971, 65TH CONG., 1ST SESS., ESPECIALLY PP. 15-17, SHOWS VERY
PLAINLY THAT CONGRESS IN NO WAY COUNTENANCED EXPLOITATION FOR
EXORBITANT PRIVATE PROFIT OF THE NECESSITIES OF THE GOVERNMENT. 

AUTHORITY GIVEN TO MAKE CONTRACTS DOES NOT IMPLY AUTHORITY TO MAKE
UNCONSCIONABLE CONTRACTS.  SUPPOSE THAT CONGRESS IN AUTHORIZING THE
CONTRACTS IN QUESTION HAD WRITTEN INTO ITS LEGISLATION: "PROVIDED, THAT
NO AGENCY OF GOVERNMENT SHALL BE AUTHORIZED TO ENTER INTO
UNCONSCIONABLE CONTRACTS."  CAN IT BE THAT BECAUSE CONGRESS DID NOT
EXPRESSLY PROVIDE THAT "UNCONSCIONABLE CONTRACTS" ARE UNAUTHORIZED IT
IMPLIEDLY SANCTIONED THE MAKING OF "UNCONSCIONABLE CONTRACTS"?  OR
SUPPOSE THE ESTIMATED COSTS IN THE CONTRACTS WERE SO INFLATED BY
BETHLEHEM THAT ITS PROFITS WERE 200% RATHER THAN 22%.  WOULD THIS COURT
STILL BE BOUND TO ENFORCE THESE CONTRACTS ON THE GROUND THAT CONGRESS
HAD COMMANDED THEIR ENFORCEMENT?  SURELY, CONGRESS DID NOT IMPLIEDLY
REPEAL HISTORIC LEGAL PRINCIPLES AND PROHIBIT THIS COURT FROM
EXERCISING ITS DUTY TO WITHHOLD RELIEF WHEN THE PARTICULAR
CIRCUMSTANCES DISCLOSE AN UNCONSCIONABLE ARRANGEMENT IN THE MAKING OF
WHICH THE GOVERNMENT'S CONTRACTING OFFICERS HAD NO PRACTICAL CHOICE. 

THE SUGGESTION THAT PRESIDENT WILSON AUTHORIZED A "TRAFFIC IN PROFIT"
IS REFUTED, IF EXPLICIT PROOF BE NEEDED, BY HIS UTTERANCES.  FOR
EXAMPLE, ADDRESSING A MEETING OF MINE OPERATORS AND MANUFACTURERS ON
JULY 12, 1917, HE SPOKE AS FOLLOWS: 

"I HEAR IT INSISTED THAT MORE THAN A JUST PRICE, MORE THAN A PRICE
THAT WILL SUSTAIN OUR INDUSTRIES, MUST BE PAID; THAT IT IS NECESSARY TO
PAY VERY LIBERAL AND UNUSUAL PROFITS IN ORDER TO 'STIMULATE
PRODUCTION'; THAT NOTHING BUT PECUNIARY REWARDS WILL DO IT - REWARDS
PAID IN MONEY, NOT IN THE MERE LIBERATION OF THE WORLD. 

"I TAKE IT FOR GRANTED THAT THOSE WHO ARGUE THUS DO NOT STOP TO THINK
WHAT THAT MEANS.  DO THEY MEAN THAT YOU MUST BE PAID, MUST BE BRIBED,
TO MAKE YOUR CONTRIBUTION, A CONTRIBUTION THAT COSTS YOU NEITHER A DROP
OF BLOOD NOR A TEAR, WHEN THE WHOLE WORLD IS IN TRAVAIL AND MEN
EVERYWHERE DEPEND UPON AND CALL TO YOU TO BRING THEM OUT OF BONDAGE AND
MAKE THE WORLD A FIT PLACE TO LIVE IN AGAIN, AMIDST PEACE AND JUSTICE? 

"DO THEY MEAN THAT YOU WILL EXACT A PRICE, DRIVE A BARGAIN, WITH THE
MEN WHO ARE ENDURING THE AGONY OF THIS WAR ON THE BATTLEFIELD, IN THE
TRENCHES, AMIDST THE LURKING DANGERS OF THE SEA, OR WITH THE BEREAVED
WOMEN AND THE PITIFUL CHILDREN, BEFORE YOU WILL COME FORWARD TO DO YOUR
DUTY AND GIVE SOME PART OF YOUR LIFE, IN EASY, PEACEFUL FASHION, FOR
THE THINGS WE ARE FIGHTING FOR, THE THINGS WE HAVE PLEDGED OUR
FORTUNES, OUR LIVES, OUR SACRED HONOR TO VINDICATE AND DEFEND - LIBERTY
AND JUSTICE AND FAIR DEALING AND THE PEACE OF NATIONS?  OF COURSE YOU
WILL NOT. 

"IT IS INCONCEIVABLE.  YOUR PATRIOTISM IS OF THE SAME SELF-DENYING
STUFF AS THE PATRIOTISM OF THE MEN DEAD OR MAIMED ON THE FIELDS OF
FRANCE, OR ELSE IT IS NO PATRIOTISM AT ALL. 

"LET US NEVER SPEAK, THEN, OF PROFITS AND OF PATRIOTISM IN THE SAME
SENTENCE, BUT FACE FACTS AND MEET THEM. 

"LET US DO SOUND BUSINESS, BUT NOT IN THE MIDST OF A MIST.  MANY A
GRIEVOUS BURDEN OF TAXATION WILL BE LAID ON THIS NATION, IN THIS
GENERATION AND IN THE NEXT, TO PAY FOR THIS WAR.  LET US SEE TO IT THAT
FOR EVERY DOLLAR THAT IS TAKEN FROM THE PEOPLE'S POCKETS IT SHALL BE
POSSIBLE TO OBTAIN A DOLLAR'S WORTH OF THE SOUND STUFFS THEY NEED." 
PUBLIC PAPERS OF WOODROW WILSON, VOL. 3, PP. 75-6; 55 CONG. REC. 4995. 

MR. JUSTICE HOLMES HAS SAID THAT "MEN MUST TURN SQUARE CORNERS WHEN
THEY DEAL WITH THE GOVERNMENT."  ROCK ISLAND, A. & L.R. CO. V. UNITED
STATES, 254 U.S. 141, 143.  HIS ADMONITION HAS PARTICULAR RELEVANCE
WHEN THIS COURT IS CALLED UPON TO ENFORCE AGREEMENTS MADE WITH THE
GOVERNMENT AT WAR FOR THE PRODUCTION OF SUPPLIES ESSENTIAL TO THE
PROSECUTION OF THE WAR.  DURING WARTIME THE BARGAINING POSITION OF
GOVERNMENT CONTRACTING OFFICERS IS INHERENTLY WEAK, NO MATTER HOW
CONSCIENTIOUS THEY MAY BE.  IF THEY ARE TO DEAL ON EQUAL TERMS WITH
PRIVATE CONTRACTORS, PARTICULARLY WHERE THE SUBJECT MATTER OF CONTRACTS
IS SO INTRICATE AND SO SPECIALIZED AS THE BUILDING OF SHIPS, THEY MUST
HAVE AVAILABLE TO THEM NOT ONLY DETAILED INFORMATION BUT ALSO THE TIME
WITHIN WHICH TO STUDY THE DATA AND THE FREEDOM TO EXERCISE A REAL
CHOICE.  IN THE LAST WAR, AT LEAST, THIS WAS NOT GENERALLY TRUE.  SEE
SEN. REP. NO. 944, 74TH CONG., 1ST SESS., PT. 4, P. 30.  IT IS NOT
DIFFICULT IN THESE DAYS TO APPRECIATE THE POSITION OF NEGOTIATORS FOR
THE GOVERNMENT IN TIME OF WAR AND TO REALIZE HOW MUCH THE PRESSURES OF
WAR DEPRIVE THEM OF EQUALITY OF BARGAINING POWER IN SITUATIONS WHERE
BARGAINING WITH PRIVATE CONTRACTORS IS THE ONLY PRACTICABLE MEANS OF
SECURING NECESSARY WAR SUPPLIES.  BECAUSE THE GOVERNMENT IS IN SUCH A
DEPENDENT POSITION, AND BECAUSE THOSE WHO DEAL WITH IT ON A COST-PLUS
ARRANGEMENT, OR SOME SIMILAR BASIS, ARE ASSURED OF A PROFIT, IT IS
WHOLLY CONSISTENT WITH PRACTICALITIES AND MAKES NO UNDULY IDEALISTIC
DEMAND FOR THE LAW TO JUDGE THE ARRANGEMENTS OF SUCH WARTIME
CONTRACTORS BY STANDARDS NOT UNLIKE THOSE BY WHICH A FIDUCIARY'S
CONDUCT IS JUDGED.  THOSE UPON WHOM THE NATION IS DEPENDENT FOR ITS
SUPPLIES IN THE DEFENSE OF ITS LIFE WOULD HARDLY WISH TO BE JUDGED BY
LOWER STANDARDS. 

THE MODES ARE VAST AND VARIED BY WHICH THE NATION OBTAINS ITS WAR
SUPPLIES.  WHAT WILL BEST SUPPLY WAR NEEDS IN AMPLEST MEASURE IN THE
QUICKEST TIME AND LEAST WASTEFULLY - WHETHER BY PRIVATE LETTING AND, IF
SO, UNDER WHAT RESTRICTIONS AND SAFEGUARDS; UNDER WHAT CIRCUMSTANCES
THE GOVERNMENT SHOULD DO ITS OWN SUPPLYING EITHER BY TAKING OVER OLD
PLANTS OR BUILDING NEW ONES OR A COMBINATION OF THE TWO; TO WHAT EXTENT
AND THROUGH WHAT MEANS PEACETIME HABITS AND TRADITIONS MAY BE DISPLACED
AND DISREGARDED - THESE ARE QUESTIONS OF POLICY FOR THE WISDOM AND
RESPONSIBILITY OF THE CONGRESS AND THE EXECUTIVE.  THE VERY LIMITED
SCOPE OF INQUIRY TO WHICH A LITIGATION ON A PARTICULAR TRANSACTION IS
CONFINED IS HARDLY THE BASIS FOR JUDGMENT ON SUCH FAR-FLUNG ISSUES.  IF
THE HISTORY OF THIS COURT PERMITS ONE GENERALIZATION ABOVE ALL OTHERS,
IT IS THE UNWISDOM OF ENTERING THE DOMAIN OF POLICY OUTSIDE THE VERY
NARROW LEGAL LIMITS PRESENTED BY THE RECORD OF A PARTICULAR
LITIGATION.  SUCH INTRUSION INTO THE EXECUTIVE AND LEGISLATIVE DOMAINS
IS NOT CONDUCIVE TO THE JUST DISPOSITION OF THE IMMEDIATE CONTROVERSY. 
WE ARE MUCH LESS LIKELY TO GO WRONG IF WE DO NOT DEPART FROM THE WELL
GROOVED PATH OF JUDICIAL COMPETENCE. 

THIS COURT SHOULD NOT PERMIT BETHLEHEM TO RECOVER THESE
UNCONSCIONABLE PROFITS, AND THEREBY "MAKE THE COURT THE INSTRUMENT OF
THIS INJUSTICE."  THOMAS V. BROWNVILLE, FT. K. & P.R. CO., 109 U.S.
522, 526. 

FN1  WHATEVER THE SCOPE AND IMPORTANCE OF THE GOVERNMENT'S
REQUISITIONING POWER IN OTHER SITUATIONS (COMPARE BARUCH, AMERICAN
INDUSTRY IN WAR, P. 77, WITH SEN. REP. NO. 944, 74TH CONG., 1ST SESS.,
PT. 2, PP. 4-5, 111-15), IT WAS WITHOUT SIGNIFICANCE IN THE FLEET
CORPORATION'S SHIPBUILDING PROGRAM.  THE REPORTS OF THE SHIPPING BOARD
SHOW THAT THE EXERCISE OF THE POWER WAS LIMITED TO THE ACQUISITION OF
VESSELS WHICH HAD BEEN BUILT OR WERE BEING CONSTRUCTED; THE POWER DOES
NOT SEEM TO HAVE BEEN EMPLOYED TO TAKE OVER THE SHIPYARDS OF
RECALCITRANT PRIVATE CONTRACTORS.  INDEED, THE POLICY OF THE
GOVERNMENT, BASED UPON ITS WARTIME NEEDS, WAS TO ENCOURAGE, FINANCIALLY
AND OTHERWISE, THE CONSTRUCTION AND MAINTENANCE OF SHIPYARDS BY PRIVATE
INTERESTS.  SEE 1ST ANNUAL REPORT OF THE U.S. SHIPPING BOARD (1917) PP.
12-15; 2D ANNUAL REPORT (1918) PP. 33-36, 120-22; REPORT OF DIRECTOR
GENERAL CHARLES PIEZ TO THE BOARD OF TRUSTEES OF THE U.S. SHIPPING
BOARD EMERGENCY FLEET CORPORATION (APRIL 30, 1919) PP. 13-14, 78, 123;
REPORT OF THE PRESIDENT OF THE U.S. SHIPPING BOARD EMERGENCY FLEET
CORPORATION TO THE BOARD OF TRUSTEES (AUGUST 1, 1919) PP. 25-26. 

FN2  THE BOOKS ARE FULL OF CASES IN WHICH COURTS HAVE REFUSED TO LEND
THEMSELVES AS COLLECTING AGENCIES OF CONTRACTS MADE UNDER CIRCUMSTANCES
OFFENSIVE TO THE CONSCIENCE.  SEE, FOR EXAMPLE, IN ADDITION TO THE
CASES CITED IN THE TEXT, JOHNSON V. FORD, 147 TENN. 63, 245 S.W. 531;
HARRIS V. CARY, 112 VA. 362, 71 S.E. 551; NORTHWESTERN MUTUAL LIFE INS.
CO. V. BARKER, 241 KY. 490, 497, 44 S.W.2D 292; CAIVANO V. BRILL, 171
MISC. 298, 11 N.Y.S.2D 498. 

FN3  E.G., THE RIGHT TO RECOVER MONEY PAID UNDER MISTAKE OF LAW,
WISCONSIN CENTRAL R. CO. V. UNITED STATES, 164 U.S. 190, 212, AND THE
UNAVAILABILITY AGAINST THE GOVERNMENT OF THE DEFENSES OF LACHES OR
NEGLECT OF DUTY, UNITED STATES V. KIRKPATRICK, 9 WHEAT.  720, 735, AND
ESTOPPEL BASED ON UNAUTHORIZED ACTS OF ITS AGENTS, LEE V. MUNROE, 7
CRANCH 366; UTAH POWER & LIGHT CO. V. UNITED STATES, 243 U.S. 389, 408
09. 

MR. JUSTICE DOUGLAS: 

ON THE POINT OF DURESS AND COERCION I THOROUGHLY AGREE WITH THE VIEWS
EXPRESSED BY MR. JUSTICE BLACK AND JOIN IN THE OPINION OF THE COURT. 
FOR THE REASONS STATED BY MR. JUSTICE BLACK, THE CLAIM THAT BETHLEHEM'S
PROFITS WERE UNCONSCIONABLE IN THE LEGAL SENSE WOULD LIKEWISE FAIL. 

THERE IS, HOWEVER, ONE ASPECT OF THE CASE ON WHICH I TAKE A SOMEWHAT
DIFFERENT VIEW. 

THE UNITED STATES DOES NOT CONTEST HERE THE RIGHT OF BETHLEHEM TO
RETAIN ITS "FIXED FEE" OF APPROXIMATELY $12,000,000 FOR THE
CONSTRUCTION OF THE SHIPS.  THE DISPUTE REVOLVES AROUND AN ADDITIONAL
SUM OF $12,000,000 WHICH BETHLEHEM CLAIMS UNDER THE SO-CALLED "BONUS
FOR-SAVINGS" PROVISION OF THE CONTRACTS.  THAT PROVISION IN THE SEVERAL
CONTRACTS WAS THE SAME EXCEPT FOR THE AMOUNT OF THE FIXED FEE.  THUS A
TYPICAL CONTRACT PROVIDED:  "SHOULD THE ACTUAL COST BE LESS THAN THE
ESTIMATED  ...  COST  ...  THE CONTRACTOR SHALL BE ALLOWED AS PROFIT ON
EACH VESSEL IN ADDITION TO SAID FIXED SUM FOR PROFIT OF  ...  $210,000
ONE-HALF THE AMOUNT BY WHICH SUCH ACTUAL COST OF EACH VESSEL FALLS
SHORT OF THE ESTIMATED COST  ...  " 

I AGREE THAT THE CONSUMMATION OF THE BARGAIN DEPENDED UPON THE
INCLUSION OF THIS "SAVINGS" CLAUSE AND THAT IN EACH INSTANCE THERE WAS
BUT ONE CONTRACT, NOT SEVERAL.  MY VIEW, HOWEVER, IS THAT EACH CONTRACT
WAS DIVISIBLE OR SEVERABLE.  "  ... THE ESSENTIAL FEATURE OF SUCH A
CONTRACT IS THAT A PORTION OF THE PRICE IS BY THE TERMS OF THE
AGREEMENT SET OFF AGAINST A PORTION OF THE PERFORMANCE AND MADE PAYABLE
FOR THAT PORTION, SO THAT WHEN AN APPORTIONED PART OF THE PERFORMANCE
HAS BEEN RENDERED A DEBT FOR THAT PART IMMEDIATELY ARISES."  WILLISTON
ON CONTRACTS, SEC. 861(REV.  ED.).  IN OTHER WORDS, THE WHOLE
PERFORMANCE OF EACH CONTRACT WAS DIVIDED "INTO TWO SETS OF PARTIAL
PERFORMANCES, EACH PART OF EACH SET BEING THE AGREED EXCHANGE FOR A
CORRESPONDING PART OF THE SET OF PERFORMANCES TO BE RENDERED BY THE
OTHER PROMISOR."  ID., SEC. 860A.  (1) THE PROMISE OF THE FLEET
CORPORATION TO PAY THE ACTUAL COST PLUS THE FIXED FEE WAS EXCHANGED FOR
BETHLEHEM'S UNDERTAKING TO CONSTRUCT THE SHIPS.  (2) THE PROMISE OF THE
FLEET CORPORATION TO PAY ONE-HALF THE AMOUNT BY WHICH THE ACTUAL COST
FELL SHORT OF THE ESTIMATED COST WAS EXCHANGED FOR BETHLEHEM'S PROMISE
(WHICH IS IMPLIED) TO EFFECT THE SAVINGS BY INCREASING EFFICIENCY. 

ALTHOUGH I AM CLEAR THAT THE CONTRACTS WOULD NOT HAVE BEEN MADE BUT
FOR THE INCLUSION OF THE "SAVINGS" PROVISION, I DO NOT BELIEVE THAT
THERE IS A "NECESSARY DEPENDENCY" BETWEEN THESE TWO SETS OF PROMISES
WITHIN THE RULE OF PHILADELPHIA, W. & B.R. CO. V. HOWARD, 13 HOW.  307,
339.  AND SEE POLLAK V. BRUSH ELECTRIC ASSN., 128 U.S. 446, 455;
FULLMER V. POUST, 155 PA. 275, 278, 26 A. 543; RESTATEMENT, CONTRACTS,
SEC. 266(3).  PRECEDENTS, TO BE SURE, ARE OF LITTLE AID SINCE EACH CASE
TURNS ON ITS SPECIAL CIRCUMSTANCES.  BUT THE CONSTRUCTION OF
DIVISIBILITY SEEMS WARRANTED BY THE FACTS, THOUGH HERE AS IN OTHER
CASES CONSIDERABLE RELIANCE MUST BE PLACED ON IMPLICATIONS. 

BETHLEHEM'S ARGUMENT AGAINST DIVISIBILITY RESTS ON SUCH TESTIMONY OF
PIEZ, WHO REPRESENTED THE FLEET CORPORATION, AS FOLLOWS:  "THE PRICE
HAD TO BE PLACED FOR ACTUAL COST, IF WE KNEW THE COST, PLUS AN
ALLOWANCE FOR CONTINGENCIES, PLUS AN ALLOWANCE FOR INCENTIVE, PLUS THE
FEE.  SO WE START OUT WITH THE BARE COST; THEN IN ORDER TO MEET ANY
CONTINGENCIES THAT MAY HAPPEN, ADD SOME ALLOWANCE FOR CONTINGENCIES; IN
ORDER TO GIVE A PROPER INCENTIVE, ADD AN INCENTIVE ALLOWANCE; AND THEN
ADD THE FEE."  THAT IS TO SAY THE "SAVINGS" CLAUSE WAS DEEMED TO BE
VALUABLE FROM THE FLEET CORPORATION'S VIEWPOINT AS AN "INCENTIVE" TO
KEEP THE COSTS DOWN AND TO EXPEDITE THE WORK.  AND POWELL, THE AUTHOR
OF THE "SAVINGS" CLAUSE IN THIS CASE AND THE REPRESENTATIVE OF
BETHLEHEM, TESTIFIED THAT THE SAVINGS TO BE OBTAINED WOULD BE
SUFFICIENT TO "WIPE OUT THE EXCESS PROFITS TAXES," SO THAT THE FIXED
FEE WOULD BE "NET" TO BETHLEHEM. 

BUT POWELL'S TESTIMONY ALSO INDICATED THAT WHILE THE "SAVINGS" CLAUSE
WAS AN "INCENTIVE," BETHLEHEM WAS TO EARN THE "SAVINGS":    "Q.  THEN I
TAKE IT THAT ONE OF YOUR GREAT PROBLEMS, AS THE DRIVING FORCE OF THIS
ORGANIZATION, WAS TO IMPROVE YOUR LABOR CONDITIONS, OR FIRST TO PREVENT
LABOR CONDITIONS FROM GETTING WORSE AND THEN TO TRY TO IMPROVE THEM? 

"A.  YES. 

"Q.  OVER WHAT THEY WERE IN DECEMBER OF 1917? 

"A.  YES. 

"Q.  AND IF YOU WERE ABLE TO DO THAT, THEN THERE WAS A POSSIBILITY OF
SOME PROFIT IN THESE CONTRACTS UNDER THE HALF SAVINGS CLAUSE?   "A.
YES. 

"Q.  WAS THERE ANY LIKELIHOOD, OR DID YOU AT THAT TIME FORESEE ANY
LIKELIHOOD, OF ANY SUBSTANTIAL SAVING IN YOUR MATERIAL ITEMS? 

"A.  NO, I SHOULD NOT HAVE EXPECTED AT THAT TIME TO MAKE ANY SAVING
OF ANY AMOUNT IN THE MATERIALS. 

"Q.  SO THAT, IF BETHLEHEM WAS TO MAKE ANY MONEY OUT OF THESE
CONTRACTS IN EXCESS OF THE FIXED FEE, IT WAS YOUR JUDGMENT THAT THE
ONLY WAY TO DO IT WAS BY INCREASING THE EFFICIENCY OF THE YARDS? 

"A.  EXACTLY." 

POWELL ALSO TESTIFIED: 

"THE ESTIMATE WAS A FIGURE WHICH WE HAD TO SHOOT AT THAT IN MY
JUDGMENT GAVE US A REASONABLE PROFIT OR A CHANCE OF MAKING A
SUBSTANTIAL SAVING.  TO MAKE THAT SAVING, WE HAD TO OPERATE MORE
EFFICIENTLY THAN WHAT WE MIGHT SAY WAS AVERAGE EFFICIENCY UNDER
CONDITIONS THAT THEN EXISTED.  IF WE WERE GOING TO MAKE THAT SAVING, WE
HAD TO OVERCOME ANY INCREASED COST DUE TO DECREASED EFFICIENCY, AND
INCREASE EFFICIENCY BEYOND WHAT IT WAS AT THAT TIME." 

AND PIEZ TESTIFIED THAT THE PROVISION WAS TO GIVE THE SHIPBUILDERS AN
"INCENTIVE" TO "USE THEIR INGENUITY TO MAKE A LARGER PROFIT." 

THE SPECIAL MASTER FOUND THAT THE ESTIMATES DESIGNATED AS "BASE
PRICES" IN THE CONTRACTS "WOULD AFFORD BETHLEHEM A REASONABLE
OPPORTUNITY TO EFFECT 'SAVINGS' AS A RESULT OF ITS EFFORTS AND ABILITY
TO INCREASE EFFICIENCY OF MANAGEMENT AND LABOR AS COMPARED WITH AVERAGE
EFFICIENCY THEN EXISTING."  HE ALSO FOUND THAT "IT WAS UNDERSTOOD THAT
PARTICIPATION IN 'SAVINGS' WAS SUPPOSED TO REPRESENT A BONUS OR
ADDITIONAL COMPENSATION TO BE EARNED BY BETHLEHEM AS CONSIDERATION FOR
ITS SPECIAL EFFORTS AND ABILITY TO REDUCE COST BY INCREASING EFFICIENCY
OF MANAGEMENT AND LABOR AS COMPARED WITH EFFICIENCY THEN EXISTING." 
YET HE FURTHER FOUND THAT "BETHLEHEM WAS TO PARTICIPATE IN SAVINGS
HOWEVER EARNED, BUT EXPECTED TO PRODUCE SAVINGS BY INCREASED
EFFICIENCY." 

MY DIFFICULTY IS WITH THAT LAST FINDING.  IF BETHLEHEM WAS TO SHARE
HALF OF THE SAVINGS "HOWEVER EARNED," THEN ITS RIGHT TO RECEIVE THE
BONUS MIGHT WELL DEPEND ON A WHOLLY FORTUITOUS CIRCUMSTANCE OR IT MIGHT
ACCRUE AS PETITIONER SUGGESTS "SIMPLY AS A REWARD FOR THE INACCURACY OF
ITS ESTIMATE OF ACTUAL COSTS."  UNDER THAT VIEW BETHLEHEM WOULD BE
ENTITLED TO $12,000,000 ADDITIONAL COMPENSATION MERELY BECAUSE THE
WHOLESALE PRICE INDEX FELL.  YET THAT WOULD BE TANTAMOUNT TO A GIFT BY
PUBLIC OFFICERS OF PROPERTY OF THE UNITED STATES.  THE SAME RESULT
WOULD FOLLOW IF THE CLAUSE BE READ AS CONTAINING MERELY A "BEST
EFFORTS" PROVISION.  THE CONTRACT ALREADY PROVIDED THAT BETHLEHEM "IN
ALL ITS ACTS HEREUNDER, SHALL USE ITS BEST EFFORTS TO PROTECT AND
SUBSERVE THE INTEREST OF THE OWNER."  EVEN IN THE ABSENCE OF SUCH A
PROVISION, ONE WOULD BE IMPLIED.  UNITED STATES V. A. BENTLEY & SONS
CO., 293 F. 229, 235; UNITED STATES V. GEORGE A. FULLER CO., 296 F.
178, 180.  HENCE IT IS DIFFICULT FOR ME TO IMPLY THAT THIS ADDITIONAL
$12,000,000 WAS OFFERED AS A REWARD FOR PERFORMING AN OBLIGATION WHICH
THE LAW WOULD IMPOSE ON THE CONTRACTOR IN ANY EVENT.  BURKE & JAMES,
INC. V. UNITED STATES, 63 CT. CLS. 36, 57.  THAT, TOO, WOULD BE A GRANT
OF PUBLIC FUNDS FOR WHICH THE UNITED STATES WOULD RECEIVE NO QUID PRO
QUO. 

HENCE IT SEEMS MORE REASONABLE TO IMPLY THAT BETHLEHEM WAS TO RENDER
AN ADDITIONAL PERFORMANCE FOR THE ADDITIONAL COMPENSATION OF
$12,000,000.  SUCH A CONSTRUCTION OF THE CONTRACTS AVOIDS THE
DIFFICULTIES I HAVE MENTIONED, AS IT GIVES THE UNITED STATES A QUID PRO
QUO FOR ITS PROMISE TO PAY AN ADDITIONAL $12,000,000.  CF. DAYTON
AIRPLANE CO. V. UNITED STATES, 21 F.2D 673, 682-683.  AND IT IS
SUPPORTED BY THE TESTIMONY OF THE REPRESENTATIVES OF THE TWO
CONTRACTING PARTIES WHO NEGOTIATED THE CONTRACTS. 

IN THAT VIEW OF THE MATTER, BETHLEHEM WOULD BE PUT TO ITS PROOF THAT
IT EFFECTED THE SAVINGS WHICH IT NOW CLAIMS.  MERE GUESSWORK WOULD NOT
BE ENOUGH.  J.J. PREIS & CO. V. UNITED STATES, 58 CT. CLS. 81, 86. 
PRECISE PROOF OF EACH DOLLAR SAVED MIGHT NOT BE POSSIBLE.  BUT A
REASONABLE APPROXIMATION OF BETHLEHEM'S CONTRIBUTION TO THE SAVINGS
WOULD BE NECESSARY.  SUCH BURDEN OF PROOF HAS BEEN SUSTAINED IN OTHER
CASES INVOLVING SIMILAR CONTRACTS.  COHEN, ENDEL & CO. V. UNITED
STATES, 60 CT. CLS. 513; F. JACOBSON & SONS V. UNITED STATES, 61 CT.
CLS. 420.  THE CIRCUIT COURT OF APPEALS STATED THAT THERE WAS "SOME
EVIDENCE TENDING TO SHOW THAT SAVINGS RESULTED, IN PART AT LEAST, FROM
INCREASED EFFICIENCY."  113 F.2D 301, 307.  BUT THERE WAS NO CLEAR
SHOWING THAT SPECIAL EFFORTS WERE MADE TO REDUCE COSTS AND THAT THE
SAVINGS WHICH RESULTED WERE TRACEABLE TO SUCH EFFORTS.  THE NECESSARY
FINDINGS ON THAT ISSUE WERE NOT MADE. 
..END :















RILEY V. NEW YORK TRUST CO., 315 U.S. 343 


NO. 81.  ARGUED DECEMBER 16, 1941.  - DECIDED FEBRUARY 16, 1942.  - 16
A.2D 772, AFFIRMED. 


1.  CONSISTENTLY WITH THE FULL FAITH AND CREDIT CLAUSE OF THE FEDERAL
CONSTITUTION, WHEN A STATE COURT IN PROBATING A WILL AND ISSUING
LETTERS TESTAMENTARY, IN A PROCEEDING TO WHICH ALL DISTRIBUTEES WERE
PARTIES, EXPRESSLY FINDS THAT THE DOMICILE OF THE TESTATOR AT THE TIME
OF HIS DEATH WAS IN THAT STATE, THE ADJUDICATION OF DOMICILE DOES NOT
BIND ONE WHO IS SUBSEQUENTLY APPOINTED AS DOMICILIARY ADMINISTRATOR
C.T.A. IN A SECOND STATE IN WHICH HE WILL BE CALLED UPON TO DEAL WITH
THE CLAIMS OF LOCAL CREDITORS, INCLUDING THE CLAIM OF THE STATE ITSELF
FOR TAXES, AND WHO WAS NOT A PARTY TO THE PROCEEDING IN THE FIRST
STATE; AND IN THIS SITUATION, THE COURTS OF A THIRD STATE, WHEN
DISPOSING OF LOCAL ASSETS CLAIMED BY BOTH THE PERSONAL REPRESENTATIVES,
ARE FREE TO DETERMINE THE QUESTION OF DOMICILE IN ACCORDANCE WITH THEIR
OWN LAW.  PP. 348 ET SEQ. 

2.  IN THE ABSENCE OF A CONTRARY RULING BY THE COURTS OF DELAWARE,
HELD THAT, BY THE LAW OF THAT STATE, CASES CITED AND RELIED ON IN AN
OPINION OF THE HIGHEST COURT OF ANOTHER STATE - WHICH OPINION IS
PROPERLY IN THE RECORD - MAY BE CONSIDERED AS EVIDENCE OF THE LAW OF
SUCH OTHER STATE.  P. 351. 

RILEY ET AL., EXECUTORS, V. NEW YORK TRUST CO., ADMINISTRATOR, ET AL. 

CERTIORARI TO THE SUPREME COURT OF DELAWARE. 

CERTIORARI, 313 U.S. 555, TO REVIEW A DECREE DETERMINING THE
DISPOSITION OF PROPERTY BELONGING TO AN ESTATE, WHICH WAS CLAIMED BY
EACH OF TWO PERSONAL REPRESENTATIVES APPOINTED IN OTHER STATES. 

IN REDETERMINING THE QUESTION OF DECEDENT'S DOMICILE, THE DELAWARE
COURTS FAILED TO GIVE FULL FAITH AND CREDIT TO THE GEORGIA JUDGMENT. 
THORMANN V. FRAME, 176 U.S. 350; OVERBY V. GORDON, 177 U.S. 214; TILT
V. KELSEY, 207 U.S. 43; BURBANK V. ERNST, 232 U.S. 162; BAKER V. BAKER,
ECCLES & CO., 242 U.S. 394; S.C. 162 KY. 683; THOMAS V. MORRISETT, 76
GA. 384; IN RE FISCHER'S ESTATE, 118 N.J. EQ. 599; IN RE WILLETT'S
APPEAL, 50 CONN. 330. 

THE GEORGIA COURTS HAD BEFORE THEM ALL POSSIBLE DISTRIBUTEES OF THE
DECEDENT'S ESTATE, AND HENCE IT WAS POSSIBLE TO HAVE A SINGLE
CONTROLLING DECISION UPON THE SUCCESSION.  SEE BAKER V. BAKER, ECCLES &
CO., SUPRA. 

THE GEORGIA JUDGMENT WAS BINDING UPON THE NEW YORK ADMINISTRATOR. 
WHEN DECEDENT'S HUSBAND, HIMSELF A PARTY TO THE GEORGIA LITIGATION, AND
DURING THE PROGRESS OF THE GEORGIA LITIGATION, HAD THE ADMINISTRATOR
APPOINTED IN NEW YORK IN EX PARTE PROCEEDINGS, HE COULD NOT THEREBY IN
EFFECT NULLIFY, IN OTHER STATES, THE DECISION OF THE GEORGIA COURTS
UPON THE FACTUAL QUESTION OF DOMICILE THAT WAS IN ISSUE AND UPON WHICH
THE JURISDICTION OF THE GEORGIA COURTS DEPENDED.  THE ADMINISTRATOR
ACQUIRED NO INTEREST IN THE SUCCESSION ABOVE AND UNRELATED TO THE
INTEREST OF ANY POSSIBLE DISTRIBUTEE.  A CREDITOR OR TAX CLAIMANT IS
NOT ENTITLED TO BE HEARD ON THE PROBATE OF A WILL; AND HENCE, AFTER THE
SUCCESSION HAS BEEN DETERMINED, CAN NOT DISPUTE THE TITLE OR RIGHT OF
POSSESSION OF THE PERSONAL REPRESENTATIVE WHOSE TITLE HAS BEEN
ESTABLISHED IN THE PROBATE PROCEEDING.  HOOKS V. BROWN, 125 GA. 122;
DUNSMUIR V. SCOTT, 217 F. 200; TILT V. KELSEY, 207 U.S. 43; SCHOULER ON
WILLS, VOL. 2, P. 846, SEC. 746. 

SINCE THE GEORGIA JUDGMENT IS BINDING UPON ALL POSSIBLE DISTRIBUTEES,
INCLUDING HUNGERFORD, BECAUSE HE WAS A PARTY TO AND PARTICIPATED IN THE
GEORGIA LITIGATION, IT IS ALSO BINDING UPON THE NEW YORK ADMINISTRATOR,
THE SAME PERSON IN LAW AS HUNGERFORD.  SEE CHICAGO, ROCK ISLAND &
PACIFIC RY. CO. V. SCHENDEL, 270 U.S. 611. 

THE GEORGIA JUDGMENT DETERMINED THAT THE GEORGIA ADMINISTRATION WAS
DOMICILIARY AND GENERAL AND NOT ANCILLARY OR LOCAL.  SUCH A JUDGMENT IS
CONCLUSIVE WHERE ALL PERSONS INTERESTED IN THE DISTRIBUTION OF THE
ESTATE ARE PARTIES.  THORMANN V. FRAME, 176 U.S. 350; OVERBY V. GORDON,
177 U.S. 214; TILT V. KELSEY, 207 U.S. 43; BURBANK V. ERNST, 232 U.S.
162; BAKER V. BAKER, ECCLES & CO., 242 U.S. 394; THOMAS V. MORRISETT,
76 GA. 384; IN RE FISCHER'S ESTATE, 118 N.J.EQ. 599; IN RE WILLETT'S
APPEAL, 50 CONN. 330. 

THE EFFECT OF THE DELAWARE DECISION IS THAT A DISSATISFIED LITIGANT
IN SUCH A PROCEEDING MAY GO INTO ANOTHER STATE, HAVE AN ADMINISTRATOR
APPOINTED IN EX PARTE PROCEEDINGS, AND, IGNORING THE PREVIOUS
ADJUDICATION, HAVE THE QUESTION OF DOMICILE LITIGATED ALL OVER AGAIN IN
A CONTEST BETWEEN THE TWO SETS OF REPRESENTATIVES IN A THIRD STATE
WHERE PROPERTY OF THE DECEDENT IS LOCATED. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

COCA-COLA INTERNATIONAL CORPORATION, INCORPORATED IN DELAWARE, FILED
A BILL OF INTERPLEADER IN A DELAWARE COURT OF CHANCERY AGAINST JULIAN
RILEY AND HUGHES SPALDING, PETITIONERS HERE, THE EXECUTORS OF MRS.
JULIA M. HUNGERFORD, WITH LETTERS TESTAMENTARY ISSUED BY THE COURT OF
ORDINARY OF FULTON COUNTY, GEORGIA, AND AGAINST THE NEW YORK TRUST
COMPANY, THE RESPONDENT, A NEW YORK CORPORATION, AS TEMPORARY
ADMINISTRATOR (AFTERWARD ADMINISTRATOR C.T.A.)  OF THE SAME DECEDENT,
APPOINTED BY THE SURROGATE'S COURT FOR NEW YORK COUNTY, NEW YORK. 

THE GEORGIA EXECUTORS AND THE NEW YORK ADMINISTRATOR EACH CLAIM THE
RIGHT TO HAVE TRANSFERRED TO THEM, IN THEIR REPRESENTATIVE CAPACITY,
STOCK IN THE COCA-COLA CORPORATION NOW ON ITS BOOKS IN THE NAME OF THE
DECEDENT.  THE OUTSTANDING CERTIFICATES ARE IN GEORGIA, IN THE HANDS OF
THE GEORGIA EXECUTORS.  THE PARTIES ARE AGREED, AND IT IS THEREFORE
ASSUMED, THAT DELAWARE IS THE SITUS OF THE STOCK.  IN ACCORDANCE WITH
THE PRAYER OF THE BILL, THE DELAWARE COURT DIRECTED THE ADVERSARY
CLAIMANTS TO INTERPLEAD BETWEEN THEMSELVES AS TO THEIR RESPECTIVE
CLAIMS. 

THE GEORGIA EXECUTORS ASSERT THAT ORIGINAL DOMICILIARY PROBATE OF
MRS. HUNGERFORD'S WILL IN SOLEMN FORM WAS OBTAINED BY THEM IN GEORGIA,
WITH ALL BENEFICIARIES AND HEIRS AT LAW OF TESTATRIX, INCLUDING HER
HUSBAND, ROBERT HUNGERFORD, ACTUAL PARTIES BY PERSONAL SERVICE.  THESE,
IT IS CONCEDED, WERE ALL THE PARTIES UNDER THE LAW OF GEORGIA ENTITLED
TO BE HEARD ON THE PROBATE OF THE WILL.  THE RESPONDENT ADMINISTRATOR
C.T.A. WAS NOT A PARTY.  THE RECORD OF PROBATE INCLUDES A DETERMINATION
BY SPECIAL FINDING, OVER THE OBJECTION OF THE CAVEATOR, THE HUSBAND,
THAT THE TESTATRIX WAS DOMICILED IN GEORGIA.  THE SPECIAL FINDING WAS
SPECIFICALLY APPROVED AS AN ESSENTIAL FACT TO DETERMINE THE
JURISDICTION OF THE COURT OF ORDINARY BY THE HIGHEST COURT OF GEORGIA
IN ITS AFFIRMANCE OF THE PROBATE.  HUNGERFORD V. SPALDING, 183 GA. 547,
189 S.E. 2. 

THESE FACTS WERE ALLEGED BY PETITIONERS IN THEIR STATEMENT OF CLAIM
TO THE STOCK FILED BELOW IN RESPONSE TO THE DECREE OF INTERPLEADER. 
EXEMPLIFIED COPIES OF THE PROBATE RECORD OF THE SEVERAL GEORGIA COURTS
WERE PLEADED AND PROVEN, AS WERE THE APPLICABLE GEORGIA STATUTES
GOVERNING DOMICILIARY PROBATE.  FROM THE FACTS ALLEGED, PETITIONERS
INFERRED THE CONCLUSIVE ESTABLISHMENT OF THE PLACE FOR DOMICILIARY
DISTRIBUTION AGAINST "ALL PERSONS," AND PRAYED THE ISSUE TO THEM OF NEW
CERTIFICATES.  AN OFFER WAS MADE TO PAY ALL DELAWARE TAXES OR CHARGES
ON THE STOCK.  AT THE TRIAL, PETITIONERS RELIED UPON ARTICLE IV, SEC.
1, OF THE FEDERAL CONSTITUTION,  FN1  THE FULL FAITH AND CREDIT CLAUSE,
AS DETERMINATIVE OF THEIR RIGHT TO THE NEW CERTIFICATES.  THE PLEADING
AND TRIAL CONTENTION ADEQUATELY RAISED THE CONSTITUTIONAL QUESTION. 
TILT V. KELSEY, 207 U.S. 43, 50. 

RESPONDENT ADMITTED THAT ALL PARTIES ENTITLED UNDER THE LAW OF
GEORGIA TO BE HEARD IN OPPOSITION TO PROBATE WERE ACTUALLY BEFORE THE
GEORGIA COURTS.  IT DENIED THAT MRS. HUNGERFORD WAS DOMICILED IN
GEORGIA OR THAT THE GEORGIA JUDGMENT OF DOMICILE AND PROBATE WAS
BINDING ON IT, AND AVERRED TESTATRIX'S DOMICILE AT DEATH WAS NEW YORK. 
IT FURTHER AVERRED THAT THERE WERE NEW YORK CREDITORS OF THE ESTATE
INTERESTED IN THE PROPER AND LAWFUL ADMINISTRATION OF THE ESTATE, AND
THAT NEW YORK HAD CERTAIN CLAIMS FOR INHERITANCE AND ESTATE TAXES.  ITS
OWN SUBSEQUENT APPOINTMENT BY THE SURROGATE'S COURT OF NEW YORK COUNTY,
NEW YORK, ON THE SUGGESTION OF TESTATRIX'S HUSBAND AND THE STATE TAX
COMMISSION, WAS PLEADED WITH APPLICABLE PROVISIONS OF NEW YORK PROBATE
AND ESTATE TAX LAW.  BY STIPULATION IT WAS ESTABLISHED THAT PETITIONERS
AND THE HEIRS AND BENEFICIARIES OF TESTATRIX, EXCEPT HER HUSBAND, WHO
WAS AN ACTUAL PARTY, WERE NOTIFIED OF THE NEW YORK PROCEEDINGS FOR
PROBATE ONLY BY PUBLICATION OR SUBSTITUTED SERVICE OF THE CITATION IN
GEORGIA, AND DID NOT APPEAR.  AS A DOMICILIARY ADMINISTRATOR C.T.A.,
THE RESPONDENT PRAYED THE ISSUE TO IT OF NEW CERTIFICATES FOR THE STOCK
IN CONTROVERSY. 

THE TRIAL COURT CONCLUDED FROM THE EVIDENCE ADDUCED AT THE HEARINGS
THAT THE TESTATRIX WAS DOMICILED IN GEORGIA.  IT WAS THEREFORE, AS THE
COURT STATED, UNNECESSARY FOR IT TO CONSIDER THE BINDING EFFECT OF THE
GEORGIA JUDGMENT.  FN2  THE SUPREME COURT OF DELAWARE REVERSED THIS
FINDING OF FACT, DETERMINED THAT NEW YORK WAS TESTATRIX'S DOMICILE AND
DENIED PETITIONERS' CONTENTION THAT ARTICLE IV, SEC. 1, OF THE
CONSTITUTION REQUIRED THE AWARD OF THE CERTIFICATES OF STOCK TO THE
GEORGIA EXECUTORS.  THE COCA-COLA CORPORATION WAS DIRECTED TO ISSUE ITS
STOCK CERTIFICATE TO THE RESPONDENT, THE NEW YORK ADMINISTRATOR C.T.A.
NEW YORK TRUST CO. V. RILEY, 16 A.2D 772.  BECAUSE OF THE IMPORTANCE OF
ISSUES PREVIOUSLY UNDECIDED BY THIS COURT, CERTIORARI WAS GRANTED TO
REVIEW THE ALLEGED ERROR, TO WIT, THE ASSERTED DENIAL OF FULL FAITH AND
CREDIT TO THE GEORGIA JUDGMENT.  313 U.S. 555. 

THE CONSTITUTIONAL EFFECT OF THE GEORGIA DECREE ON A CLAIM IN HIS OWN
NAME IN ANOTHER STATE BY A PARTY TO THE GEORGIA PROCEEDINGS IS NOT HERE
INVOLVED.  FN3  THE QUESTION WE ARE TO DECIDE IS WHETHER THIS GEORGIA
JUDGMENT ON DOMICILE CONCLUSIVELY ESTABLISHES THE RIGHT OF THE GEORGIA
EXECUTORS TO DEMAND DELIVERY TO THEM OF PERSONAL ASSETS OF THEIR
TESTATRIX WHICH ANOTHER STATE IS WILLING TO SURRENDER TO THE
DOMICILIARY PERSONAL REPRESENTATIVE,  FN4 WHEN ANOTHER REPRESENTATIVE,
APPOINTED BY A THIRD STATE, ASSERTS A SIMILAR DOMICILIARY RIGHT.  FOR
THE PURPOSE OF THIS REVIEW, THE CONCLUSION OF DELAWARE THAT THE
TESTATRIX WAS IN FACT DOMICILED IN NEW YORK IS ACCEPTED.  THE ANSWER TO
THE QUESTION LIES IN THE EXTENT TO WHICH ARTICLE IV, SEC. 1, OF THE
CONSTITUTION, AS MADE APPLICABLE BY R.S. SEC. 905,  FN5  NEVERTHELESS
CONTROLS DELAWARE'S ACTION. 

THIS CLAUSE OF THE CONSTITUTION BRINGS TO OUR UNION A USEFUL MEANS
FOR ENDING LITIGATION.  MATTERS ONCE DECIDED BETWEEN ADVERSE PARTIES IN
ANY STATE OR TERRITORY ARE AT REST.  WERE IT NOT FOR THIS FULL FAITH
AND CREDIT PROVISION, SO FAR AS THE CONSTITUTION CONTROLS THE MATTER,
ADVERSARIES COULD WAGE AGAIN THEIR LEGAL BATTLES WHENEVER THEY MET IN
OTHER JURISDICTIONS.  EACH STATE COULD CONTROL ITS OWN COURTS BUT
ITSELF COULD NOT PROJECT THE EFFECT OF ITS DECISIONS BEYOND ITS OWN
BOUNDARIES.  CF. PENNOYER V. NEFF, 95 U.S. 714, 722.  THAT CLAUSE
COMPELS THAT CONTROVERSIES BE STILLED, SO THAT, WHERE A STATE COURT HAS
JURISDICTION OF THE PARTIES AND SUBJECT MATTER, ITS JUDGMENT CONTROLS
IN OTHER STATES TO THE SAME EXENT AS IT DOES IN THE STATE WHERE
RENDERED.  ROCHE V. MCDONALD, 275 U.S. 449, 451.  THIS IS TRUE EVEN
THOUGH THE CAUSE OF ACTION MERGED IN THE JUDGMENT COULD NOT HAVE BEEN
ENFORCED IN THE STATE WHEREIN THE ENFORCEMENT OF THE JUDGMENT IS
SOUGHT.  CHRISTMAS V. RUSSELL, 5 WALL.  290, 302; FAUNTLEROY V. LUM,
210 U.S. 230, 236.  FN6  BY THE CONSTITUTIONAL PROVISION FOR FULL FAITH
AND CREDIT, THE LOCAL DOCTRINES OF RES JUDICATA, SPEAKING GENERALLY,
BECOME A PART OF NATIONAL JURISPRUDENCE, AND THEREFORE FEDERAL
QUESTIONS COGNIZABLE HERE. 

THE CONSTITUTION DOES NOT REQUIRE, M'ELMOYLE V. COHEN, 13 PETERS 312,
328; MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268, 276, NOR DOES
DELAWARE PROVIDE, THAT THE JUDGMENTS OF GEORGIA HAVE THE FORCE OF THOSE
OF HER OWN COURTS.  A SUIT IN DELAWARE MUST PRECEDE ANY LOCAL REMEDY ON
THE GEORGIA JUDGMENT.  SUBJECT TO THE CONSTITUTIONAL REQUIREMENTS,
DELAWARE'S DECISIONS ARE BASED ON DELAWARE JURISPRUDENCE.  HER
SOVEREIGNTY DETERMINES PERSONAL AND PROPERTY RIGHTS WITHIN HER
TERRITORY.  SUBJECT TO CONSTITUTIONAL LIMITATIONS, IT WAS HER
PREROGATIVE TO DISTRIBUTE THE PROPERTY LOCATED IN DELAWARE OR TO DIRECT
ITS TRANSMISSION TO THE DOMICILIARY REPRESENTATIVE OF THE DECEASED. 
IOWA V. SLIMMER, 248 U.S. 115, 121.  THE FULL FAITH AND CREDIT CLAUSE
ALLOWS DELAWARE, IN DISPOSING OF LOCAL ASSETS, TO DETERMINE THE
QUESTION OF DOMICILE ANEW FOR ANY INTERESTED PARTY WHO IS NOT BOUND BY
PARTICIPATION IN THE GEORGIA PROCEEDING.  THORMANN V. FRAME, 176 U.S.
350, 356; OVERBY V. GORDON, 177 U.S. 214, 227; BURBANK V. ERNST, 232
U.S. 162; BAKER V. BAKER, ECCLES & CO., 242 U.S. 394, 400.  IT MUST BE
ADMITTED THAT THIS REEXAMINATION MAY RESULT IN CONFLICTING DECISIONS
UPON DOMICILE, BUT THAT IS AN INEVITABLE CONSEQUENCE OF THE EXISTING
FEDERAL SYSTEM, WHICH ENDOWS ITS CITIZENS WITH THE FREEDOM TO CHOOSE
THE STATE OR STATES WITHIN WHICH THEY DESIRE TO CARRY ON BUSINESS,
ENJOY THEIR LEISURE OR ESTABLISH THEIR RESIDENCES.  WORCESTER COUNTY
CO. V. RILEY, 302 U.S. 292, 299.  FN7  BUT, WHILE ALLOWING DELAWARE TO
DETERMINE DOMICILE FOR ITSELF, WHERE ANY INTERESTED PARTY IS NOT BOUND
BY THE GEORGIA PROCEEDINGS, THE FULL FAITH AND CREDIT CLAUSE AND R.S.
SEC. 905, NOTE 5, SUPRA, DO REQUIRE THAT DELAWARE SHALL GIVE GEORGIA
JUDGMENTS SUCH FAITH AND CREDIT "AS THEY HAVE BY LAW OR USAGE" IN
GEORGIA. 

WE NOTE, BUT NEED NOT DISCUSS AT LENGTH, THE RESPONDENT'S CONTENTION
THAT OUR APPLICATION OF GEORGIA LAW IS LIMITED TO THE STATUTES,
DECISIONS AND USAGES OF THAT STATE PLEADED OR PROVEN IN THE DELAWARE
PROCEEDINGS,  FN8  AND THAT FOR SUCH FURTHER RULES OF LAW, AS MAY BE
NEEDED TO REACH A CONCLUSION HERE, WE MUST NECESSARILY, IN REVIEWING A
DELAWARE JUDGMENT, RELY UPON THE LAW WHICH, IN THE ABSENCE OF PROOF OF
OTHER GEORGIA LAW, PROPERLY GUIDED THE STATE COURTS, THAT IS, THE
DELAWARE LAW.  FN9  AT ANY RATE, THE CASES RELIED UPON BY PETITIONERS
TO ESTABLISH THE GEORGIA LAW, TANT V. WIGFALL, 65 GA. 412, AND WASH V.
DICKSON, 147 GA. 540, 94 S.E. 1009, ARE CITED IN THE OPINION OF THE
SUPREME COURT OF GEORGIA PLEADED IN THESE PROCEEDINGS.  WE THINK THEY
MAY BE CONSIDERED BY US UNDER THE DELAWARE LAW.  NO OBJECTION BELOW WAS
MADE BY RESPONDENT TO THE CITATIONS.  THE OPINION OF THE GEORGIA
SUPREME COURT WAS PROPERLY IN THE RECORD AND, IN THE ABSENCE OF A
CONTRARY RULING BY DELAWARE, WE ARE OF THE VIEW THAT THEY MAY BE
PROPERLY CONSIDERED HERE.  FN10    WE FIND NOTHING IN EITHER OF THESE
CASES, HOWEVER, WHICH WOULD LEAD TO THE CONCLUSION THAT, IN GEORGIA,
THE NEW YORK ADMINISTRATOR C.T.A. WAS IN PRIVITY, SO FAR AS THE
SEQUESTRATION OF ASSETS FOR THE PAYMENT OF DEATH TAXES OR INDEBTEDNESS
OF DECEDENT OR HER ESTATE IS CONCERNED, WITH ANY PARTIES BEFORE THE
GEORGIA COURT, OR THAT THE NEW YORK REPRESENTATIVE COULD NOT TAKE STEPS
IN GEORGIA COURTS WHICH MIGHT RESULT IN ITS GETTING POSSESSION OF ANY
ASSETS WHICH UNDER THE GEORGIA LAW OF ADMINISTRATION WOULD BE PROPERLY
DELIVERABLE TO A FOREIGN DOMICILIARY ADMINISTRATOR.  IN THE TANT CASE,
GEORGIA REFUSED TO PERMIT A COLLATERAL ATTACK ON A JUDGMENT OF PROBATE
ALLEGEDLY ENTERED WITHOUT JURISDICTION OF THE SUBJECT MATTER.  IT WAS
HELD THAT SUCH ATTACK MUST BE MADE IN THE COURT WHERE JUDGMENT WAS
RENDERED.  THE EFFECT OF A JUDGMENT ENTERED WITHOUT JURISDICTION OF THE
PERSONS WHOSE RIGHTS WERE PURPORTEDLY AFFECTED WAS NOT DISCUSSED.  IN
THE WASH CASE, THERE WAS SIMPLY A RULING THAT A JUDGMENT OF THE COURT
OF ORDINARY COULD NOT BE COLLATERALLY ATTACKED BY PARTIES OR PRIVIES,
UNLESS THE RECORD NEGATIVED THE EXISTENCE OF NECESSARY "JURISDICTIONAL
FACTS."  WHOM THE COURT WOULD CLASSIFY AS "PRIVIES" TO A JUDGMENT IN
PERSONAM DOES NOT APPEAR, AND THE OPINION OF THE COURT BELOW MAKES IT
AMPLY PLAIN THAT THERE WAS NO PRIVITY UNDER DELAWARE LAW.  HENCE, IF
THE GEORGIA JUDGMENT IS TO BIND THE NEW YORK ADMINISTRATOR, IT CAN BE
CONSIDERED TO DO SO ONLY IN REM. 

BY SEC. 113-602, GEORGIA CODE OF 1933, SET UP BY PETITIONER AS A
BASIS FOR HIS CONTENTION AS TO THE FINALITY OF THE GEORGIA JUDGMENT IN
DELAWARE, IT IS PROVIDED THAT THE COURT OF ORDINARY IS GIVEN EXCLUSIVE
JURISDICTION OVER THE PROBATE OF WILLS AND THAT "SUCH PROBATE IS
CONCLUSIVE UPON ALL THE PARTIES NOTIFIED, AND ALL THE LEGATEES UNDER
THE WILL WHO ARE REPRESENTED IN THE EXECUTOR."  ALL THE PARTIES
ENTITLED TO BE HEARD IN OPPOSITION TO THE PROBATE, INCLUDING MR.
HUNGERFORD, WERE ACTUALLY BEFORE THE COURT OF ORDINARY.  IT MAY BE
ASSUMED THAT THE JUDGMENT OF PROBATE AND DOMICILE IS A JUDGMENT IN REM
AND THEREFORE, AS "AN ACT OF THE SOVEREIGN POWER," "ITS EFFECTS CANNOT
BE DISPUTED" WITHIN THE JURISDICTION.  FN11  BUT THIS DOES NOT BAR
LITIGATION ANEW BY A STRANGER, OF FACTS UPON WHICH THE DECREE IN REM IS
BASED.  FN12  HENCE IT CANNOT BE SAID, WE THINK, THAT BECAUSE
RESPONDENT WOULD HAVE NO STANDING IN GEORGIA TO CONTEST THE PROBATE OF
A WILL AND, WE ASSUME, THE PRELIMINARY DETERMINATION OF DOMICILE, HELD
NECESSARY IN HUNGERFORD V. SPALDING, 183 GA. 547, 550, 189 S.E. 2, 3,
THEREAFTER RESPONDENT COULD NOT FILE A CLAIM IN DELAWARE, DEPENDENT
UPON DOMICILIARY REPRESENTATION OF TESTATRIX, FOR ASSETS IN THE LATTER
STATE.  WHILE THE GEORGIA JUDGMENT IS TO HAVE THE SAME FAITH AND CREDIT
IN DELAWARE AS IT DOES IN GEORGIA, THAT REQUIREMENT DOES NOT GIVE THE
GEORGIA JUDGMENT EXTRA-TERRITORIAL EFFECT UPON ASSETS IN OTHER STATES. 
SO FAR AS THE ASSETS IN GEORGIA ARE CONCERNED, THE GEORGIA JUDGMENT OF
PROBATE IS IN REM; SO FAR AS IT AFFECTS PERSONALTY BEYOND THE STATE, IT
IS IN PERSONAM AND CAN BIND ONLY PARTIES THERETO OR THEIR PRIVIES. 
THIS IS THE RESULT OF THE RULING IN BAKER V. BAKER, ECCLES & CO., 242
U.S. 394, 400.  FN13  PHRASED SOMEWHAT DIFFERENTLY, IF THE EFFECT OF A
PROBATE DECREE IN GEORGIA IN PERSONAM WAS TO BAR A STRANGER TO THE
DECREE FROM LATER ASSERTING HIS RIGHTS, SUCH A HOLDING WOULD DENY
PROCEDURAL DUE PROCESS. 

IT SEEMS QUITE OBVIOUS THAT THE ADMINISTRATOR C.T.A. APPEARS IN
DELAWARE AS AN AGENCY OF THE STATE OF NEW YORK, AND NOT AS THE ALTER
EGO OF THE BENEFICIARIES OF THE HUNGERFORD ESTATE.  IN ITS ANSWER TO
THE PETITIONERS' STATEMENT OF CLAIM, IT ESTABLISHED ITS STATUS BY
ALLEGING THAT NOT MERELY THE BENEFICIARIES BUT CREDITORS RESIDING IN
NEW YORK AND THE STATE OF NEW YORK WERE INTERESTED IN THE ESTATE, THAT
ITS APPOINTMENT AS TEMPORARY ADMINISTRATOR HAD BEEN SOUGHT BY THE NEW
YORK TAX COMMISSIONER "TO PROTECT THE CLAIM OF THE STATE OF NEW YORK TO
INHERITANCE AND SUCCESSION TAXES," THAT THE STATE OF NEW YORK WAS
ASSERTING SUCH CLAIMS IN SUBSTANTIAL AMOUNT ON THE THEORY THAT THE
DOMICILE WAS NEW YORK, AND THAT, UNDER NEW YORK LAW, AS EVIDENCED BY
STATUTES LIKEWISE PLEADED, AN ADMINISTRATOR WAS "VESTED BY LAW WITH THE
RIGHT TO POSSESSION AND CONTROL OVER AND TO EXERCISE ALL MANNER OF
DOMINION OVER ALL OF THE GOODS AND CHATTELS AND PERSONAL PROPERTY OF
EVERY KIND AND DESCRIPTION OF THE ESTATE OF A DECEDENT." 

A STATE IS INTERESTED PRIMARILY NOT IN THE PAYMENT OF PARTICULAR
CREDITORS, NOR IN THE SUCCESSION OF HEIRS OR BENEFICIARIES, AS SUCH,
BUT IN THE ADMINISTRATION OF THE PROPERTY OF ITS CITIZENS, WHEREVER
LOCATED, AND THAT OF STRANGERS WITHIN ITS BOUNDARIES.  IN A SOCIETY
WHERE INHERITANCE IS AN IMPORTANT SOCIAL CONCEPT, THE MANAGING OF
DECEDENTS' PROPERTY IS A SOVEREIGN RIGHT WHICH MAY NOT BE READILY
FRUSTRATED. 

GEORGIA AND NEW YORK MIGHT EACH ASSERT ITS RIGHT TO ADMINISTER THE
ESTATES OF ITS DOMICILIARIES TO PROTECT ITS SOVEREIGN INTERESTS, AND
DELAWARE WAS FREE TO DECIDE FOR ITSELF WHICH CLAIMANT IS ENTITLED TO
RECEIVE THE PORTION OF MRS. HUNGERFORD'S PERSONALTY WITHIN DELAWARE'S
BORDERS.  AFFIRMED. 

FN1  "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." 

FN2  COCA-COLA INTERNATIONAL CORP. V. NEW YORK TRUST CO., 2 A.2D 290,
8 A.2D 511. 

FN3  THE SUPREME COURT OF DELAWARE WAS OF THIS OPINION.  IT SAID:  WE
ARE NOT "CALLED UPON TO CONSIDER THE OPERATION OF A JUDGMENT IN A
PROBATE PROCEEDING IN ONE JURISDICTION AS AN ESTOPPEL AGAINST ONE WHO,
ALTHOUGH A PARTY TO THAT PROCEEDING, UNDERTAKES, IN A PROCEEDING IN
ANOTHER JURISDICTION AFFECTING THE SAME DECEDENT'S ESTATE, TO RAISE
AGAIN THE QUESTION OF THE DECEDENT'S DOMICILE."  16 A.2D 772, 788. 

FN4  CF. PAGE, WILLS (3D ED.)  SEC.  727. 

FN5  "AND THE SAID RECORDS AND JUDICIAL PROCEEDINGS, SO
AUTHENTICATED, SHALL HAVE SUCH FAITH AND CREDIT GIVEN TO THEM IN EVERY
COURT WITHIN THE UNITED STATES AS THEY HAVE BY LAW OR USAGE IN THE
COURTS OF THE STATE FROM WHICH THEY ARE TAKEN."  28 U.S.C. SEC. 687. 

FN6  THERE ARE LIMITATIONS ON THE GENERALITY OF THE STATEMENT. 
PACIFIC INS. CO. V. COMMISSION, 306 U.S. 493, 502, AND CASES THERE
CITED. 

FN7  A COLLECTION OF CASES DEALING WITH THIS TOPIC MAY BE FOUND IN
121 A.L.R. 1200. 

FN8  ADAM V. SAENGER, 303 U.S. 59, 62, 63; GASQUET V. LAPEYRE, 242
U.S. 367; TILT V. KELSEY, 207 U.S. 43, 57; CHICAGO & ALTON RAILROAD V.
WIGGINS FERRY CO., 119 U.S. 615, 622; HANLEY V. DONOGHUE, 116 U.S. 1,
6. 

DEL. REV. CODE (1935) SEC. 4695 - "STATUTES OF OTHER STATES:   -
PRINTED COPIES OF STATUTES OF ANY OTHER OF THE UNITED STATES, IF
PURPORTING TO BE PUBLISHED UNDER THE AUTHORITY OF THEIR RESPECTIVE
GOVERNMENTS, OR IF COMMONLY ADMITTED AND READ AS EVIDENCE IN THEIR
COURTS, SHALL BE PRIMA FACIE EVIDENCE OF SUCH LAW." 

DEL. REV. CODE (1935) SEC. 4696 - "COMMON LAW OF OTHER STATES:   -
THE COMMON, OR UNWRITTEN, LAW OF ANY OTHER OF THE UNITED STATES, MAY BE
PROVED AS FACTS BY PAROLE EVIDENCE; AND THE REPORTS OF CASES ADJUDGED
IN THEIR COURTS, AND PUBLISHED BY AUTHORITY, MAY ALSO BE ADMITTED AS
EVIDENCE OF SUCH LAW." 

IN 1899 THE SUPERIOR COURT CLEARLY STATED THE RULE:  "IT IS A GENERAL
RULE OF LAW THAT WHENEVER A FOREIGN STATUTE IS RELIED UPON IT MUST BE
PLEADED, AND THIS COURT WILL NOT TAKE JUDICIAL NOTICE OF THE LAWS OF
OUR SISTER STATES OR OF A FOREIGN COUNTRY."  THOMAS V. GRAND TRUNK RY.
CO., 1 PENNEWILL 593, 596, 42 A. 987, 988.  THIS RULE HAS BEEN QUITE
STRICTLY APPLIED IN SUBSEQUENT CASES.  WOLF V. KEAGY, 3 W. W. HARR. 
362, 136 A. 520(SUPER.  CT. 1927); MACKENZIE OIL CO. V. OMAR OIL &
GAS.  CO., 4 W. W. HARR.  435, 154 A. 883(SUPER.  CT. 1929); NYE
ODORLESS INCINERATOR CORP. V. FELTON, 5 W. W. HARR.  236, 162 A.
504(SUPER.  CT. 1931); ROYAL INS. CO. V. SIMON, 20 DEL. CH. 297, 174 A.
444(1934); HOLLAND V. UNIVERSAL LIFE CO., 7 W. W. HARR.  39, 180 A.
328(SUPER.  CT. 1935); SILVERMAN V. NATIONAL ASSETS CORP., 12 A.2D
389(DEL.  CH. 1940). 

FN9  BOUREE V. TRUST FRANCAIS, 14 DEL. CH. 332, 127 A. 56.  OF THIS
LAW, WE TAKE JUDICIAL KNOWLEDGE.  OWINGS V. HULL, 9 PET. 607, 624;
BOWEN V. JOHNSTON, 306 U.S. 19, 23. 

FN10  CF. ELSNER V. UNITED AMERICAN UTILITIES, INC., 21 DEL. CH. 73,
75, 180 A. 589, 590, AFFIRMED 12 A.2D 389, - 

"ON THE BRIEF FILED BY THE SOLICITOR FOR THE CLAIMANT THERE ARE
QUOTATIONS FROM SECTIONS 181, 208 AND 209 OF THE NEW YORK TAX LAW. 
WHETHER THESE SECTIONS ARE A PART OF ARTICLE 9(SECTION 180 ET SEQ.) OR
OF ARTICLE 9-A (SECTION 208 ET SEQ.) OF THE STATUTE REFERRED TO IN THE
NOTICE OF CLAIM, I DO NOT KNOW.  NO POINT HAS BEEN MADE BY THE
SOLICITORS FOR THE RECEIVERS TO THE EFFECT THAT THE NEW YORK STATUTE
HAS NOT BEEN PROPERLY PLEADED AND INTRODUCED IN EVIDENCE.  I SHALL
ASSUME THEN THAT THE QUOTATIONS IN THE BRIEF FILED IN BEHALF OF THE
STATE OF NEW YORK ARE CORRECT EXTRACTS FROM THE NEW YORK STATUTE AND
THAT BY TACIT AGREEMENT THEY MAY BE CONSIDERED AS THOUGH THEY WERE
PROPERLY IN THE RECORD." 

FN11  SEE BRIGHAM V. FAYERWEATHER, 140 MASS. 411, 413, 5 N.E. 265,
266.  THE GEORGIA SUPREME COURT INTIMATED IN ONE OF THE OTHER CASES
CITED IN THE HUNGERFORD OPINION, THAT IF A PERSON WAS NOT HEARD IN
PROBATE BECAUSE OF A SUPPOSED LACK OF INTEREST, BUT WAS IN FACT
INTERESTED, HE WOULD NOT BE BOUND BY THE PROBATE DECREE.  WETTER V.
HABERSHAM, 60 GA. 193, 202; CF. YOUNG V. HOLLOWAY, (1895) P. 87; ESTATE
OF SEAMAN, 51 CAL. APP. 409, 196 P. 928. 

FN12  CF. BRIGHAM V. FAYERWEATHER, 140 MASS. 411, 413; TILT V.
KELSEY, 207 U.S. 43, 51-53; LUKE V. HILL, 137 GA. 159, 161-62, 73 S.E.
345, 346. 

FN13  ILLUSTRATIVE STATE CASES. 

A WILL IS ADMITTED TO ORIGINAL DOMICILIARY PROBATE IN STATE A.
THEREAFTER AN ANCILLARY PROCEEDING IS COMMENCED IN STATE B BASED UPON
THE DOMICILIARY DETERMINATION OF A. AT THAT POINT A BENEFICIARY, A
STRANGER TO THE PROCEEDING IN A, APPEARS AND ASSERTS THAT THE DECEDENT
WAS DOMICILED IN B. THE DETERMINATION OF DOMICILE BY STATE A WILL NOT
BE RECOGNIZED BY STATE B, BUT STATE B WILL TAKE EVIDENCE AND
REDETERMINE THE ISSUE OF DOMICILE.  ESTATE OF CLARK, 148 CAL. 108, 82
P. 760; HOLYOKE V. ESTATE OF HOLYOKE, 110 ME. 469, 87 A. 40(SEMBLE); IN
RE MAULDIN'S ESTATE, 69 MONT. 132, 220 P. 1102(SEMBLE); STRATHMANN V.
KINKELAAR, 105 OKLA. 290, 233 P. 215(SEMBLE); RICHARDS V. HUFF, 146
OKLA. 108, 293 P. 1028; CF. ESTATE OF REYNOLDS, 217 CAL. 557, 20 P.2D
323; IN RE COPPOCK'S ESTATE, 72 MONT. 431, 234 P. 258; MATTER OF
GIFFORD, 279 N.Y. 470, 18 N.E.2D 663; MCEWEN V. MCEWEN, 50 N. DAK. 
662, 197 N.W. 862.  CONTRA, CORRIGAN V. JONES, 14 COLO. 311, 23 P. 913;
KURTZ V. STENGER, 169 MD. 554, 182 A. 456. 

IF THE OBJECTOR WAS PRIVY TO THE PROCEEDING IN STATE A, STATE B WILL
NOT REDETERMINE THE ISSUE OF DOMICILE.  WILLETTS' APPEAL, 50 CONN. 330;
TORREY V. BRUNER, 60 FLA. 365, 53 SO. 337; LOEWENTHAL V. MANDELL, 125
FLA. 685, 170 SO. 169; SUCCESSION OF GAINES, 45 LA. ANN. 1237, 14 SO.
233. 

WHERE THE PROCEEDING IN STATE B IS BY A STRANGER TO THE PROCEEDINGS
FOR ORIGINAL DOMICILIARY PROBATE IN STATE A UPON THE THEORY THAT THE
DOMICILE IS ACTUALLY B, STATE B WILL DETERMINE DOMICILE FOR ITSELF. 
SCRIPPS V. WAYNE PROBATE JUDGE, 131 MICH. 265, 90 N.W. 1061; IN RE
CRANE'S ESTATE, 205 MICH. 673, 172 N.W. 584; PUSEY'S ESTATE, 321 PA.
248, 184 A. 844; SEE MATTER OF HORTON, 217 N.Y. 363, 371, 111 N.E.
1066, 1068. 

WHERE THE PERSON SEEKING TO ESTABLISH DOMICILE IN STATE B, AND TO
HAVE ORIGINAL DOMICILIARY PROBATE THERE, WAS A PARTY TO THE PROCEEDING
IN STATE A, STATE B WILL NOT REDETERMINE DOMICILE.  HOPPER V. NICHOLAS,
106 OHIO 292, 140 N.E. 186; CF. THOMAS V. MORRISETT, 76 GA. 384; IN RE
FISCHER, 118 N.J. EQ. 599, 180 A. 633. 

MR. CHIEF JUSTICE STONE: 

I CONCUR UPON THE SINGLE GROUND THAT THE NEW YORK ADMINISTRATOR WAS
NOT BOUND BY THE GEORGIA JUDGMENT.  HE WAS NOT A PARTY TO THE GEORGIA
PROCEEDINGS, NOR WAS HE REPRESENTED BY ANY OF THOSE WHO WERE PARTIES. 
AS ADMINISTRATOR APPOINTED UNDER THE NEW YORK STATUTES, HE WAS CHARGED
WITH THE DUTY OF ADMINISTERING THE ESTATE OF THE DECEDENT AND PAYING
INHERITANCE TAXES UPON IT.  HIS INTEREST SO FAR AS HE OWES DUTIES TO
THE STATE IS THEREFORE ADVERSE TO THAT OF THE HUSBAND AND THE NEXT OF
KIN, WHO ALONE WERE PARTIES TO THE GEORGIA PROCEEDING.  TO HAVE BOUND
HIM BY REPRESENTATION OF THOSE SO ADVERSE IN INTEREST WOULD HAVE BEEN A
DENIAL OF DUE PROCESS.  HANSBERRY V. LEE, 311 U.S. 32.  A JUDGMENT SO
OBTAINED IS NOT ENTITLED TO FULL FAITH AND CREDIT WITH RESPECT TO THOSE
NOT PARTIES.  PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S. 201; BAKER V.
BAKER, ECCLES & CO., 242 U.S. 394; BLODGETT V. SILBERMAN, 277 U.S. 1,
18.  ANY OTHER CONCLUSION WOULD FORECLOSE NEW YORK FROM LITIGATING ITS
RIGHT TO COLLECT TAXES LAWFULLY DUE, BY THE SIMPLE EXPEDIENT OF A
PROBATE BY THE NEXT OF KIN OF THE WILL OF THE DECEDENT AS THE DOMICILED
RESIDENT OF ANOTHER STATE, WITHOUT NOTICE TO ANY REPRESENTATIVE OF NEW
YORK OR OPPORTUNITY TO BE HEARD. 

IT IS UNNECESSARY TO CONSIDER THE OTHER QUESTIONS DISCUSSED BY THE
OPINION. 

MR. JUSTICE FRANKFURTER AND MR. JUSTICE JACKSON CONCUR IN THIS
OPINION. 
..END :









U.S. V. WRIGHTWOOD DAIRY CO., 315 U.S. 110 


NO. 744.  ARGUED JANUARY 14, 1942.  - DECIDED FEBRUARY 2, 1942.  - 123
F.2D 100, REVERSED. 


1.  THE NATIONAL POWER TO REGULATE THE PRICE OF MILK MOVING INTERSTATE
INTO A MARKETING AREA, EXTENDS TO SUCH CONTROL OVER INTRASTATE
TRANSACTIONS THERE AS IS NECESSARY AND APPROPRIATE TO MAKE THE
REGULATION OF THE INTERSTATE COMMERCE EFFECTIVE; IT INCLUDES AUTHORITY
TO REGULATE THE PRICE OF INTRASTATE MILK, THE SALE OF WHICH, IN
COMPETITION WITH THE INTERSTATE MILK, AFFECTS ADVERSELY THE PRICE
STRUCTURE AND FEDERAL REGULATION OF THE LATTER.  P. 121. 

2.  THE FEDERAL POWER TO REGULATE INTRASTATE TRANSACTIONS IS NOT
LIMITED TO PERSONS WHO ARE ENGAGED ALSO IN INTERSTATE TRANSACTIONS.  P.
121. 

3.  VIEWED IN THE LIGHT OF ITS LEGISLATIVE HISTORY, SEC. 8C (1) OF
THE AGRICULTURAL MARKETING AGREEMENT ACT OF JUNE 3, 1937, WHICH
AUTHORIZES THE SECRETARY OF AGRICULTURE TO ISSUE MARKETING ORDERS
FIXING MINIMUM PRICES TO BE PAID TO PRODUCERS OF MILK, LIMITING THE
REGULATION TO SUCH HANDLING OF THE COMMODITY AS IS IN THE CURRENT OF
INTERSTATE OR FOREIGN COMMERCE OR AS "DIRECTLY AFFECTS" SUCH COMMERCE,
WAS INTENDED, BY A FULL EXERCISE OF THE COMMERCE POWER, TO CONFER UPON
THE SECRETARY AUTHORITY TO REGULATE THE HANDLING OF MILK PRODUCED AND
MARKETED INTRASTATE, WHICH BY REASON OF ITS COMPETITION WITH THE
HANDLING OF INTERSTATE MILK SO AFFECTS THE INTERSTATE COMMERCE AS
SUBSTANTIALLY TO INTERFERE WITH ITS REGULATION UNDER THE ACT.  P. 125. 

4.  OPINIONS OF INDIVIDUAL MEMBERS OF CONGRESS ON THE MEANING OF A
BILL, WHICH CONFLICT WITH COMMITTEE REPORTS CONCERNING IT AND
EXPLANATIONS OF IT MADE ON THE FLOOR BY COMMITTEE MEMBERS HAVING IT IN
CHARGE, ARE NOT PERSUASIVE OF THE CONGRESSIONAL PURPOSE.  P. 125. 

UNITED STATES V. WRIGHTWOOD DAIRY CO.* 

*TOGETHER WITH NO. 783, WRIGHTWOOD DAIRY CO. V. UNITED STATES, ALSO
ON WRIT OF CERTIORARI, 314 U.S. 605, TO THE CIRCUIT COURT OF APPEALS
FOR THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 314 U.S. 605, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING A BILL BROUGHT BY THE GOVERNMENT TO ENFORCE AN ORDER OF THE
SECRETARY OF AGRICULTURE, AND GRANTING AN INJUNCTION TO THE DEFENDANT
AGAINST THE EXECUTION OF THE ORDER. 

THE INTRASTATE DISTRIBUTION OF PRODUCTS IN COMPETITION WITH
INTERSTATE COMMERCE IS NOT SUBJECT TO FEDERAL REGULATION. 

RESPONDENT PURCHASED ITS TOTAL DAILY MILK REQUIREMENTS FROM PRODUCERS
LOCATED ENTIRELY WITHIN ILLINOIS AND PROCESSED THE MILK IN ITS CHICAGO
PLANT WITHOUT INTERMINGLING IT WITH ANY MILK WHICH HAD CROSSED THE
STATE LINES, AND SOLD AND DISTRIBUTED THE PROCESSED PRODUCT SOLELY
WITHIN ILLINOIS.  RESPONDENT THUS WAS ENGAGED IN AN INTRASTATE BUSINESS
AND WAS NOT IN THE CURRENT OF INTERSTATE COMMERCE. 

PETITIONER'S CONTENTION THAT RESPONDENT IS A "HANDLER," ON THE GROUND
THAT THE PRODUCT HANDLED WAS IN COMPETITION WITH INTERSTATE COMMERCE
AND THEREFORE SUBJECT TO FEDERAL REGULATION, REQUIRES A CONSTRUCTION OF
THE COMMERCE CLAUSE WHICH WOULD ENABLE THE FEDERAL GOVERNMENT TO
CONTROL EVERY ENTERPRISE, EVERY OCCUPATION AND EVERY ACTIVITY OF THE
PEOPLE MERELY BY SHOWING THAT THE PRODUCT THEREOF IS IN COMPETITION
WITH SIMILAR PRODUCTS WHICH CROSS STATE LINES.  SUCH A RESTRICTION
WOULD REACH ALL ENTERPRISES AND TRANSACTIONS WHICH WERE IN COMPETITION
WITH THOSE OF OTHER STATES.  THE AUTHORITY OF THE FEDERAL GOVERNMENT
WOULD EMBRACE ALL ACTIVITIES OF THE PEOPLE, AND THE AUTHORITY OF THE
STATE OVER ITS DOMESTIC AFFAIRS WOULD EXIST ONLY BY SUFFERANCE OF THE
FEDERAL GOVERNMENT.  THERE WOULD BE NO LIMIT TO FEDERAL POWER, AND THE
STATES AND THE PEOPLE WOULD BE EFFECTIVELY DEPRIVED OF RIGHTS RESERVED
UNDER THE TENTH AMENDMENT.  SCHECHTER CORP. V. UNITED STATES, 295 U.S.
495, 546; CARTER V. CARTER COAL CO., 298 U.S. 238. 

IN UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533, IT APPEARS FROM
THE OPINION, UNLIKE THE PRESENT CASE, THAT THE INTRASTATE MILK REFERRED
TO WAS INEXTRICABLY INTERMINGLED WITH MILK WHICH MOVED ACROSS STATE
LINES.  MOREOVER, THE ORDER THERE PROMULGATED BY THE SECRETARY
RECOGNIZED THAT THERE WAS SOME MILK ENTIRELY IN INTRASTATE COMMERCE
OVER WHICH THE FEDERAL GOVERNMENT HAD NO CONTROL AND WHICH WAS
REGULATED UNDER STATE LAWS, AND SUCH INTRASTATE HANDLING OF MILK WAS
EXPRESSLY EXCEPTED FROM THE ORDER. 

CONGRESS MAY NOT UNDER THE COMMERCE CLAUSE REGULATE PURELY INTRASTATE
TRANSACTIONS WHERE THE POINT OF IMPINGEMENT OF THE INTRASTATE
TRANSACTIONS UPON INTERSTATE TRANSACTIONS IS ONE OF COMPETITION ONLY. 
DISCUSSING BROWN CHEMICAL CO. V. MEYER, 139 U.S. 540, 544; CITIZENS'
LIGHT CO. V. MONTGOMERY LIGHT CO., 171 F. 553, 560; UNITED STATES V.
BUTLER, 297 U.S. 1, 68; SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495,
546.  DISTINGUISHING THE SHREVEPORT CASE, 234 U.S. 342; CHICAGO BOARD
OF TRADE V. OLSEN, 262 U.S. 1, 41; NATIONAL LABOR RELATIONS BOARD V.
JONES & LAUGHLIN CORP., 301 U.S. 1; STAFFORD V. WALLACE, 258 U.S. 495;
CURRIN V. WALLACE, 306 U.S. 1; MULFORD V. SMITH, 307 U.S. 38; UNITED
STATES V. DARBY, 312 U.S. 100. 

COMPETITIVE DISCRIMINATION AGAINST INTERSTATE RATES, AS ILLUSTRATED
IN THE SHREVEPORT CASE, BY A RAILROAD ENGAGED BOTH IN INTERSTATE AND
INTRASTATE TRANSPORTATION, HAS NO APPLICATION WHATSOEVER TO A SITUATION
WHERE A HANDLER OF MILK BUYS ALL OF HIS MILK WITHIN A STATE AND SELLS
IT WITHIN A STATE, AND WHERE NONE OF HIS ACTIVITIES PARTAKE OF AN
INTERSTATE CHARACTER OTHER THAN THAT HIS MILK MIGHT BE IN COMPETITION
WITH MILK WHICH CROSSED STATE LINES.  THERE IS HARDLY AN ARTICLE IN
COMMON USE WHICH CAN BE SAID NOT TO BE IN COMPETITION WITH A SIMILAR
ARTICLE PRODUCED OR MANUFACTURED ACROSS STATE LINES. 

THE FACT THAT CONGRESS CAN NOT UNDER THE CONSTITUTION CONTROL PURELY
LOCAL ACTIVITIES, LIKE THAT OF RESPONDENT HEREIN, DOES NOT MEAN THAT
THERE IS A HIATUS WHERE NEITHER STATE NOR NATION COULD EFFECTIVELY
FUNCTION.  SEE UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533; MILK
CONTROL BOARD V. EISENBERG FARM PRODUCTS, 306 U.S. 346. 

CONGRESS DID NOT INTEND IN PASSING THE ACT OF 1937, AND PRIOR ACTS,
TO ASSUME CONTROL OF PURELY INTRASTATE TRANSACTIONS, AND THE ACT ITSELF
CONTAINS NO SUCH PROVISION.  THE BRIEF HISTORY OF THE PRIOR ACTS, AND
THEIR CONSTRUCTION BY THE COURTS, CLEARLY SUSTAIN THIS POSITION. 

THE FINDING OF THE SECRETARY THAT ALL MILK WHICH WAS PRODUCED FOR
SALE IN THE MARKETING AREA IS HANDLED IN THE CURRENT OF INTERSTATE
COMMERCE, OR SO AS DIRECTLY TO BURDEN, OBSTRUCT OR AFFECT INTERSTATE
COMMERCE, IS NOT AUTHORIZED BY LAW, IS CONTRARY TO THE FACT, AND OF NO
LEGAL EFFECT. 

THE INTRASTATE DISTRIBUTION OF MILK IN COMPETITION WITH INTERSTATE
COMMERCE IS SUBJECT TO FEDERAL REGULATION. 

IN UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533, 568, WHICH
INVOLVED THE MARKETING ORDER FOR THE NEW YORK AREA, THIS COURT STATED:
"NOR IS ANY QUESTION RAISED AS TO THE POWER OF THE CONGRESS TO REGULATE
THE DISTRIBUTION IN THE AREA OF THE WHOLLY INTRASTATE MILK.  IT IS
RECOGNIZED THAT THE FEDERAL AUTHORITY COVERS THE SALES OF THIS MILK, AS
ITS MARKETING IS INEXTRICABLY INTERMINGLED WITH AND DIRECTLY AFFECTS
THE MARKETING IN THE AREA OF THE MILK WHICH MOVES ACROSS STATE LINES." 

IT IS TRUE THAT OTHER EXPRESSIONS IN THE ROCK ROYAL OPINION SHOW THAT
THIS COURT ASSUMED THAT ALL OF THE MILK INVOLVED MOVED THROUGH THE
CHANNELS OF INTERSTATE COMMERCE.  307 U.S. AT PP. 540, 541, 568.  THE
RECORD IN THE CASE SHOWS, HOWEVER, THAT, ALTHOUGH THE ISSUE WAS NOT
PRESSED IN THIS COURT, ONE OF THE DEFENDANTS DID CHALLENGE THE POWER OF
CONGRESS TO REGULATE IT, ON THE GROUND THAT ITS ACTIVITIES WERE
ENTIRELY INTRASTATE AND THAT ITS MILK WAS USUALLY HANDLED ENTIRELY
INTRASTATE. 

WHETHER OR NOT THIS COURT'S REMARK IN THE ROCK ROYAL CASE WAS DICTUM,
IT WAS NOT ERRONEOUS.  UNITED STATES V. ADLER'S CREAMERY, 107 F.2D 987,
110 F.2D 482, CERT. DEN., 311 U.S. 657. 

EVERY DISTRICT COURT WHICH HAS PASSED UPON THE QUESTION, APART FROM
THE INSTANT CASE, HAS HELD THAT INTRASTATE MILK COMPETING WITH
INTERSTATE IS SUBJECT TO MILK ORDERS ISSUED UNDER THE AGRICULTURAL
MARKETING AGREEMENT ACT.  UNITED STATES V. KRECHTING, 26 F.SUPP.  266;
UNITED STATES V. ANDREWS, 26 F.SUPP.  123; UNITED STATES V. H. P. HOOD
& SONS, 26 F.SUPP.  672; UNITED STATES V. SCHWARZ (N.D. ILL.) DECIDED
JANUARY 30, 1941. 

THE TERM "COMPETITION" AS USED IN THE FINDINGS DESCRIBES A DYNAMIC
AND FREQUENTLY COMPLEX ECONOMIC RELATIONSHIP.  THE FINDING THAT THE
MILK PROCESSED BY RESPONDENT COMPETES WITH OTHER MILK, INCLUDING MILK
FROM OUTSIDE THE STATE, MEANS THAT RESPONDENT AND OTHER HANDLERS ARE
STRUGGLING AS "RIVALS FOR THE SAME TRADE."  LIPSON V. SOCONY VACUUM
CORPORATION, 87 F.2D 265, 270; SCHILL V. REMINGTON-PUTNAM BOOK CO., 17
A.2D 175, 178.  WHERE SUCH RIVALRY EXISTS, IT IS INEVITABLE THAT THE
IMPOSITION OF RESTRICTIONS UPON SOME OF THE ANTAGONISTS AND NOT UPON
OTHERS WILL GREATLY INJURE THE BUSINESS OF THOSE WHOSE FREEDOM OF
ACTION IS RESTRICTED. 

ALTHOUGH THE UNCHALLENGED FINDING OF "COMPETITION" NECESSARILY
CARRIES WITH IT THIS CONNOTATION, THE RECORD SHOWS IN MORE DETAIL THAT
BOTH THE HANDLERS OF INTERSTATE MILK AND THE FARMERS WHO PRODUCE IT
WILL BE HARMED IF INTRASTATE MILK IS EXEMPT FROM REGULATION. 

A HANDLER NOT COMPLYING WITH THE MINIMUM PRICE SYSTEM ESTABLISHED
UNDER AN ORDER WILL HAVE ADVANTAGES OVER HIS COMPETITORS.  HE WILL BE
ABLE TO PAY THE PRODUCERS LESS THAN HIS RIVALS ARE REQUIRED TO PAY, AND
THUS WILL BE IN A POSITION TO UNDERSELL THEM ON THE MARKET.  IN ORDER
TO PROTECT THEMSELVES COMPETITORS WILL SEEK TO REDUCE THE AMOUNTS THEY
PAY PRODUCERS, AND INEVITABLY THE ENTIRE PRICE STRUCTURE, INTERSTATE
AND INTRASTATE, WILL COLLAPSE.  A PRICE ORDER APPLICABLE ONLY TO
INTERSTATE TRANSACTIONS WOULD THUS EITHER BE UNWORKABLE OR WOULD
DISCRIMINATE AGAINST THE INTERSTATE DEALINGS OF THOSE SUBJECTED TO IT. 

THE COURT HAS FREQUENTLY HELD THAT THE COMMERCE POWER EXTENDS TO THE
REGULATION OF INTRASTATE ACTS WHEN NECESSARY TO MAKE THE CONTROL OF
INTERSTATE COMMERCE EFFECTIVE.  SHREVEPORT CASE, 234 U.S. 342; RAILROAD
COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S. 563; CHICAGO BOARD OF
TRADE V. OLSEN, 262 U.S. 1; SCHECHTER CORP. V. UNITED STATES, 295 U.S.
495, 544-546; NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN CORP.,
301 U.S. 1, 36-38; CURRIN V. WALLACE, 306 U.S. 1; MULFORD V. SMITH, 307
U.S. 38; UNITED STATES V. DARBY, 312 U.S. 100, 121.  THIS PRINCIPLE IS
MERELY AN APPLICATION OF THE BASIC CONSTITUTIONAL DOCTRINE, EMBODIED IN
THE "NECESSARY AND PROPER" CLAUSE BUT IMPLIED IN ANY EVENT (MCCULLOCH
V. MARYLAND, 4 WHEAT.  316), WHICH PERMITS CONGRESS TO CHOOSE THE MEANS
APPROPRIATE TO THE ACCOMPLISHMENT OF A PURPOSE WITHIN THE FEDERAL
POWER, EVEN THOUGH THE MEANS ITSELF MIGHT NOT EXPRESSLY FALL WITHIN THE
POWERS GRANTED.  UNITED STATES V. DARBY, 312 U.S. 100, AT 121, AND
CASES CITED. 

THE STATUTE AUTHORIZES THE SECRETARY TO REGULATE INTRASTATE
TRANSACTIONS WHICH COMPETE WITH INTERSTATE.  THIS IS SHOWN BY THE
LANGUAGE OF THE ACT; ITS LEGISLATIVE HISTORY; THE COMMITTEE REPORTS;
AND THE CONGRESSIONAL DEBATES. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTIONS FOR OUR DECISION ARE WHETHER CERTAIN PRICE
REGULATION BY THE SECRETARY OF AGRICULTURE OF MILK PRODUCED AND SOLD
INTRASTATE IS AUTHORIZED BY THE PROVISIONS OF THE AGRICULTURAL
MARKETING AGREEMENT ACT OF JUNE 3, 1937, 50 STAT. 246, 7 U.S.C. SEC.
608C, AND IS A PERMISSIBLE REGULATION UNDER THE COMMERCE CLAUSE OF THE
CONSTITUTION. 

ISSUE MARKETING ORDERS FIXING MINIMUM PRICES TO BE PAID TO PRODUCERS OF
MILK AND CERTAIN OTHER COMMODITIES.  PARAGRAPH 1 OF THE SECTION
PROVIDES THAT ORDERS OF THE SECRETARY "SHALL REGULATE, IN THE MANNER
HEREINAFTER IN THIS SECTION PROVIDED, ONLY SUCH HANDLING OF SUCH
AGRICULTURAL COMMODITY, OR PRODUCT THEREOF, AS IS IN THE CURRENT OF
INTERSTATE OR FOREIGN COMMERCE, OR WHICH DIRECTLY BURDENS, OBSTRUCTS,
OR AFFECTS, INTERSTATE OR FOREIGN COMMERCE IN SUCH COMMODITY OR PRODUCT
THEREOF." 

THE UNITED STATES SOUGHT IN THE PRESENT SUIT A DECREE DIRECTING
RESPONDENT TO COMPLY WITH THE SECRETARY'S ORDER NO. 41, OF AUGUST 28,
1939, REGULATING THE HANDLING OF MILK IN THE "CHICAGO, ILLINOIS,
MARKETING AREA."  RESPONDENT IS A HANDLER IN THAT AREA OF MILK WHICH IT
PURCHASES FROM PRODUCERS IN ILLINOIS.  THE ORDER, WHICH IS OF THE TYPE
DESCRIBED IN THE OPINION OF THIS COURT IN UNITED STATES V. ROCK ROYAL
CO-OPERATIVE, 307 U.S. 533, 551-555, IS BY ITS TERMS APPLICABLE TO
RESPONDENT, AND PURPORTS TO CARRY OUT THE STATUTORY SCHEME FOR
REGULATING THE PRICE OF MILK PAID TO PRODUCERS CONSIDERED IN THE
OPINION IN THAT CASE.  BY THE ORDER THE SECRETARY FOUND THAT ALL MILK
PRODUCED FOR SALE IN THE MARKETING AREA "IS HANDLED IN THE CURRENT OF
INTERSTATE COMMERCE, OR SO AS DIRECTLY TO BURDEN, OBSTRUCT, OR AFFECT
INTERSTATE COMMERCE IN MILK OR ITS PRODUCTS  ...  ," AND DIRECTED THAT
IT APPLY TO SUCH "HANDLING OF MILK" IN THE MARKETING AREA "AS IS IN THE
CURRENT OF INTERSTATE COMMERCE, OR WHICH DIRECTLY BURDENS, OBSTRUCTS,
OR AFFECTS INTERSTATE COMMERCE." 

THE ORDER, AS PROVIDED BY THE STATUTE, SEC. 8C (5), CLASSIFIES MILK
ACCORDING TO ITS USES, AND ESTABLISHES A FORMULA FOR DETERMINING THE
MINIMUM PRICE TO BE PAID TO PRODUCERS FOR EACH CLASS OF MILK.  IT
PRESCRIBES THE METHOD OF DETERMINING THE VALUE OF MILK RECEIVED FROM
PRODUCERS BY EACH HANDLER DURING EACH MONTH.  IT REQUIRES THE PAYMENT
OF A UNIFORM UNIT PRICE TO PRODUCERS, COMPUTED BY DIVIDING THE TOTAL
VALUE OF MILK REPORTED BY ALL HANDLERS IN THE MARKETING AREA BY THE
TOTAL QUANTITY OF SUCH MILK, WITH DEDUCTIONS OF CERTAIN AMOUNTS TO
PROVIDE A CASH BALANCE IN A "PRODUCER-SETTLEMENT FUND."  THE HANDLER IS
REQUIRED TO PAY PRODUCERS THE UNIFORM PRICE, SUBJECT TO BUTTERFAT AND
LOCATION DIFFERENTIALS.  BUT HE IS ALSO REQUIRED TO PAY INTO THE
SETTLEMENT FUND, OR PERMITTED TO WITHDRAW FROM IT, AS THE CASE MAY BE,
CERTAIN AMOUNTS, DEPENDING ON WHETHER THE TOTAL VALUE OF THE MILK USED
BY HIM IS GREATER, OR LESS, RESPECTIVELY, THAN HIS TOTAL PAYMENTS TO
PRODUCERS AT THE UNIFORM PRICE.  THE AMOUNTS WITHDRAWN FROM THE
SETTLEMENT FUND BY HANDLERS ARE REQUIRED TO BE USED TO BRING THE PRICE
RECEIVED BY CERTAIN PRODUCERS UP TO THE UNIFORM PRICE SET IN THE ORDER,
WHERE, BECAUSE OF THE PURPOSE FOR WHICH THE HANDLER HAS SOLD IT, THE
VALUE OF THEIR MILK IS LESS THAN THE UNIFORM PRICE.  HANDLERS ARE
REQUIRED TO MAKE REPORTS TO THE ADMINISTRATOR CONTAINING INFORMATION
NECESSARY FOR THE EXECUTION OF THE ORDER AND TO BEAR THE EXPENSE OF
ADMINISTERING IT. 

RESPONDENT'S ANSWER IN THE DISTRICT COURT SETS UP THAT ITS BUSINESS
IS ENTIRELY INTRASTATE, AND THAT, IN CONSEQUENCE, THE STATUTE DOES NOT,
AND UNDER THE COMMERCE CLAUSE CAN NOT CONSTITUTIONALLY, APPLY TO IT.
THE ANSWER ALSO SETS UP ADDITIONAL GROUNDS, WHICH NEED NOT NOW BE
CONSIDERED, FOR RESPONDENT'S CONTENTION THAT THE ORDER IS INVALID, AND
BY WAY OF COUNTERCLAIM PRAYS THAT THE UNITED STATES AND ITS OFFICERS
AND AGENTS BE ENJOINED FROM ENFORCING THE ORDER.  THE COURT FOUND THAT
RESPONDENT HAD NOT COMPLIED WITH THE ORDER; THAT IN THE COURSE OF ITS
BUSINESS IT PURCHASES MILK FROM PRODUCERS WITHIN THE STATE OF ILLINOIS,
PROCESSES THE MILK AND SELLS IT IN THE STATE "IN COMPETITION WITH THE
MILK OF OTHER HANDLERS IN THE AREA"; THAT NONE OF RESPONDENT'S MILK IS
PHYSICALLY INTERMINGLED WITH THAT WHICH HAS CROSSED STATE LINES; AND
THAT, PRIOR TO THE ORDER, 60 PER CENT OF THE MILK SOLD IN THE MARKETING
AREA WAS PRODUCED IN ILLINOIS AND 40 PER CENT IN NEIGHBORING STATES,
AND THAT AT THE TIME OF THE FINDINGS "OVER 60 PER CENT" WAS PRODUCED IN
ILLINOIS.  THE RECORD SHOWS THAT "APPROXIMATELY 40%" COMES FROM WITHOUT
THE STATE. 

THE COURT HELD THAT "THE ORDER WAS ISSUED BY THE SECRETARY IN FULL
COMPLIANCE WITH THE LAW.  ALL CONDITIONS PRECEDENT TO THE EFFECTIVENESS
OF SAID ORDER HAVE OCCURRED," BUT THAT THE BUSINESS OF THE DEFENDANT
"WAS NOT IN THE CURRENT OF INTERSTATE  ...  COMMERCE, AND DID NOT
DIRECTLY BURDEN, OBSTRUCT OR AFFECT INTERSTATE  ...  COMMERCE IN MILK
MARKETED WITHIN THE CHICAGO, ILLINOIS, MARKETING AREA."  IT ACCORDINGLY
DECREED THAT THE COMPLAINT BE DISMISSED, AND GRANTED THE INJUNCTION
PRAYED BY THE COUNTERCLAIM. 

THE CIRCUIT COURT OF APPEALS AFFIRMED, 123 F.2D 100, ON THE SOLE
GROUND THAT CONGRESS IS WITHOUT AUTHORITY UNDER THE COMMERCE CLAUSE TO
REGULATE INTRASTATE TRANSACTIONS IN MILK WHICH AFFECT INTERSTATE
COMMERCE THROUGH COMPETITION ONLY.  IT RECOGNIZED THAT RESPONDENT'S
MILK IS SOLD IN COMPETITION WITH OTHER MILK MOVING INTERSTATE; THAT THE
"MILK PROBLEM IS A SERIOUS ONE AND APPARENTLY FOR THE MOST EFFECTIVE
CONTROL REQUIRES UNIFIED REGULATIONS," AND THAT IF RESPONDENT IS NOT
SUBJECT TO THE PRESENT REGULATIONS IS "MAY WELL BE THAT THE EFFECTIVE
SANCTION OF THE ORDER WILL WITHER BEFORE THE FORCE OF COMPETITION, THE
MORALE OF THE MARKET WILL DISINTEGRATE, AND THIS ATTEMPT AT SOLUTION OF
THE PROBLEM BY THE NATIONAL GOVERNMENT WILL FAIL."  BUT IT CONCLUDED
THAT THERE IS A HIATUS BETWEEN THE CONSTITUTIONAL POWER OF STATE AND
NATION WHICH PRECLUDES ANY SOLUTION OF THE PROBLEM BY CONGRESSIONAL
LEGISLATION. 

WE THINK THERE IS NO SUCH HIATUS.  CONGRESS PLAINLY HAS POWER TO
REGULATE THE PRICE OF MILK DISTRIBUTED THROUGH THE MEDIUM OF INTERSTATE
COMMERCE, UNITED STATES V. ROCK ROYAL CO-OPERATIVE, SUPRA, AND IT
POSSESSES EVERY POWER NEEDED TO MAKE THAT REGULATION EFFECTIVE.  THE
COMMERCE POWER IS NOT CONFINED IN ITS EXERCISE TO THE REGULATION OF
COMMERCE AMONG THE STATES.  IT EXTENDS TO THOSE ACTIVITIES INTRASTATE
WHICH SO AFFECT INTERSTATE COMMERCE, OR THE EXERTION OF THE POWER OF
CONGRESS OVER IT, AS TO MAKE REGULATION OF THEM APPROPRIATE MEANS TO
THE ATTAINMENT OF A LEGITIMATE END, THE EFFECTIVE EXECUTION OF THE
GRANTED POWER TO REGULATE INTERSTATE COMMERCE.  SEE MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, 421; UNITED STATES V. FERGER, 250 U.S. 199;
CONSOLIDATED EDISON CO. V. NATIONAL LABOR RELATIONS BOARD, 305 U.S.
197, 221; UNITED STATES V. DARBY, 312 U.S. 100, 118-19.  THE POWER OF
CONGRESS OVER INTERSTATE COMMERCE IS PLENARY AND COMPLETE IN ITSELF,
MAY BE EXERCISED TO ITS UTMOST EXTENT, AND ACKNOWLEDGES NO LIMITATIONS
OTHER THAN ARE PRESCRIBED IN THE CONSTITUTION.  GIBBONS V. OGDEN, 9
WHEAT.  1, 196.  IT FOLLOWS THAT NO FORM OF STATE ACTIVITY CAN
CONSTITUTIONALLY THWART THE REGULATORY POWER GRANTED BY THE COMMERCE
CLAUSE TO CONGRESS.  HENCE THE REACH OF THAT POWER EXTENDS TO THOSE
INTRASTATE ACTIVITIES WHICH IN A SUBSTANTIAL WAY INTERFERE WITH OR
OBSTRUCT THE EXERCISE OF THE GRANTED POWER. 

FAMILIAR EXAMPLES ARE THE CONGRESSIONAL POWER OVER COMMODITIES
INEXTRICABLY COMMINGLED, SOME OF WHICH ARE MOVING INTERSTATE AND SOME
INTRASTATE, SEE UNITED STATES V. NEW YORK CENTRAL R. CO., 272 U.S. 457,
464; THE POWER TO REGULATE SAFETY APPLIANCES ON RAILROAD CARS, WHETHER
MOVING INTERSTATE OR INTRASTATE, SOUTHERN RY. CO. V. UNITED STATES, 222
U.S. 20; THE POWER TO CONTROL INTRASTATE RATES OF A COMMON CARRIER
WHICH AFFECT ADVERSELY FEDERAL REGULATION OF THE PERFORMANCE OF ITS
FUNCTIONS AS AN INTERSTATE CARRIER, SHREVEPORT CASE, 234 U.S. 342;
RAILROAD COMMISSION OF WISCONSIN V. CHICAGO, B. & Q.R. CO., 257 U.S.
563; THE REGULATION BY THE TOBACCO INSPECTION ACT OF TOBACCO PRODUCED
INTRASTATE AND DESTINED TO CONSUMERS WITHIN THE STATE AS WELL AS
WITHOUT, CURRIN V. WALLACE, 306 U.S. 1; THE REGULATION OF BOTH
INTERSTATE AND INTRASTATE MARKETING OF TOBACCO UNDER THE AGRICULTURAL
ADJUSTMENT ACT, MULFORD V. SMITH, 307 U.S. 38, 47; AND SEE CASES
COLLECTED AND DISCUSSED IN UNITED STATES V. DARBY, 312 U.S. 100, 118
125. 

COMPETITIVE PRACTICES WHICH ARE WHOLLY INTRASTATE MAY BE REACHED BY
THE SHERMAN ACT BECAUSE OF THEIR INJURIOUS EFFECT ON INTERSTATE
COMMERCE.  NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197;
SWIFT & CO. V. UNITED STATES, 196 U.S. 375; UNITED STATES V. PATTEN,
226 U.S. 525; CORONADO COAL CO. V. UNITED MINE WORKERS, 268 U.S. 295;
LOCAL 167 V. UNITED STATES, 291 U.S. 293; STEVENS CO. V. FOSTER &
KLEISER CO., 311 U.S. 255.  SO TOO THE MARKETING OF A LOCAL PRODUCT IN
COMPETITION WITH THAT OF A LIKE COMMODITY MOVING INTERSTATE MAY SO
INTERFERE WITH INTERSTATE COMMERCE OR ITS REGULATION AS TO AFFORD A
BASIS FOR CONGRESSIONAL REGULATION OF THE INTRASTATE ACTIVITY.  IT IS
THE EFFECT UPON THE INTERSTATE COMMERCE OR ITS REGULATION, REGARDLESS
OF THE PARTICULAR FORM WHICH THE COMPETITION MAY TAKE, WHICH IS THE
TEST OF FEDERAL POWER.  CF. SHREVEPORT CASE, SUPRA; RAILROAD COMMISSION
OF WISCONSIN V. CHICAGO, B. & Q.R. CO., SUPRA; NATIONAL LABOR RELATIONS
BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1, 36-43; UNITED STATES V.
DARBY, SUPRA, 122. 

AS THE COURT BELOW RECOGNIZED, AND AS SEEMS NOT TO BE DISPUTED, THE
MARKETING OF INTRASTATE MILK WHICH COMPETES WITH THAT SHIPPED
INTERSTATE WOULD TEND SERIOUSLY TO BREAK DOWN PRICE REGULATION OF THE
LATTER.  UNDER THE CONDITIONS PREVAILING IN THE MILK INDUSTRY, AS THE
RECORD SHOWS, THE UNREGULATED SALE OF THE INTRASTATE MILK TENDS TO
REDUCE THE SALES PRICE RECEIVED BY HANDLERS AND THE AMOUNT WHICH THEY
IN TURN PAY TO PRODUCERS.  STUDY OF THE ORDER WHICH WE HAVE SUMMARIZED
MAKES CLEAR THAT THE UNREGULATED HANDLER SELLING FLUID MILK CAN PAY
PRODUCERS SUBSTANTIALLY LESS THAN THE MINIMUM PRICE SET IN THE ORDER
FOR MILK OF THAT CLASS, AND YET PAY AS MUCH AS, OR MORE THAN, THE
"UNIFORM PRICE" PRESCRIBED BY THE REGULATORY SCHEME FOR ALL PRODUCERS,
WHICH IS BASED UPON THE AVERAGE PRICE FOR THE SEVERAL CLASSES OF MILK
COMBINED.  SUCH A HANDLER WOULD HAVE AN ADVANTAGE OVER OTHERS IN THE
SALE OF THE CLASS OF MILK IN WHICH HE PRINCIPALLY DEALS, AND COULD
FORCE HIS COMPETITORS DEALING IN INTERSTATE MILK TO SURRENDER THE
MARKET OR SEEK TO REDUCE PRICES TO PRODUCERS IN ORDER TO RETAIN IT. 

IT IS NO ANSWER TO SUGGEST, AS DOES RESPONDENT, THAT THE FEDERAL
POWER TO REGULATE INTRASTATE TRANSACTIONS IS LIMITED TO THOSE WHO ARE
ENGAGED ALSO IN INTERSTATE COMMERCE.  THE INJURY, AND HENCE THE POWER,
DOES NOT DEPEND UPON THE FORTUITOUS CIRCUMSTANCE THAT THE PARTICULAR
PERSON CONDUCTING THE INTRASTATE ACTIVITIES IS, OR IS NOT, ALSO ENGAGED
IN INTERSTATE COMMERCE.  SEE CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S.
1; STEVENS CO. V. FOSTER & KLEISER CO., SUPRA.  IT IS THE EFFECT UPON
INTERSTATE COMMERCE OR UPON THE EXERCISE OF THE POWER TO REGULATE IT,
NOT THE SOURCE OF THE INJURY WHICH IS THE CRITERION OF CONGRESSIONAL
POWER.  SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 51.  WE CONCLUDE
THAT THE NATIONAL POWER TO REGULATE THE PRICE OF MILK MOVING INTERSTATE
INTO THE CHICAGO, ILLINOIS, MARKETING AREA, EXTENDS TO SUCH CONTROL
OVER INTRASTATE TRANSACTIONS THERE AS IS NECESSARY AND APPROPRIATE TO
MAKE THE REGULATION OF THE INTERSTATE COMMERCE EFFECTIVE; AND THAT IT
INCLUDES AUTHORITY TO MAKE LIKE REGULATIONS FOR THE MARKETING OF
INTRASTATE MILK WHOSE SALE AND COMPETITION WITH THE INTERSTATE MILK
AFFECTS ITS PRICE STRUCTURE SO AS IN TURN TO AFFECT ADVERSELY THE
CONGRESSIONAL REGULATION. 

WE TURN TO THE QUESTION WHETHER CONGRESS HAS EXERCISED THAT AUTHORITY
BY SEC. 8C (1).  RESPONDENT ARGUES THAT CONGRESS, IN ENACTING IT, DID
NOT INTEND TO EXERCISE ITS FULL POWER OVER COMMERCE, AND THAT READ IN
THE LIGHT OF ITS LEGISLATIVE HISTORY THE SECTION DOES NOT AUTHORIZE THE
REGULATION OF COMPETING INTRASTATE MILK.  IN TERMS THE STATUTE SPEAKS
OF THE HANDLING OF PRODUCTS "IN THE CURRENT OF INTERSTATE COMMERCE" OR
"WHICH DIRECTLY BURDENS, OBSTRUCTS, OR AFFECTS, INTERSTATE COMMERCE." 
THE ARGUMENT IS THAT THE WORD "DIRECTLY" IN THE STATUTE IS RESTRICTIVE,
EVIDENCING AN INTENTION TO EXERCISE LESS THAN THE FULL AUTHORITY
POSSESSED BY CONGRESS, AND A PURPOSE NOT TO EXTEND THAT AUTHORITY TO
THE REGULATION OF LOCAL PRODUCTS WHICH AFFECT THE INTERSTATE
COMMODITIES AND THEIR REGULATION ONLY BY COMPETING WITH THEM. 

IN SUPPORT OF THIS CONTENTION RESPONDENT POINTS TO THE PRECURSOR OF
THE PRESENT STATUTE, THE AGRICULTURAL ADJUSTMENT ACT OF 1933, 48 STAT.
31, 35, AS AMENDED BY 48 STAT. 528, WHICH CONTAINED PROVISIONS OMITTED
FROM THE PRESENT STATUTE, SPECIFICALLY AUTHORIZING CERTAIN REGULATION
OF PRODUCTS "IN COMPETITION WITH" THOSE IN INTERSTATE COMMERCE. 
ENTER INTO MARKETING AGREEMENTS WITH THOSE "ENGAGED IN THE HANDLING OF
ANY AGRICULTURAL COMMODITY OR PRODUCT THEREOF, IN THE CURRENT OF OR IN
COMPETITION WITH, OR SO AS TO BURDEN, OBSTRUCT, OR IN ANY WAY AFFECT,
INTERSTATE OR FOREIGN COMMERCE."  AND SEC. 8(3) PROVIDED FOR THE
ISSUING OF LICENSES TO THOSE ENGAGED "IN THE HANDLING, IN THE CURRENT
OF INTERSTATE OR FOREIGN COMMERCE, OF ANY AGRICULTURAL COMMODITY OR
PRODUCT THEREOF, OR ANY COMPETING COMMODITY OR PRODUCT THEREOF."  IN
THE 1935 AMENDMENTS TO THE AGRICULTURAL ADJUSTMENT ACT THESE PROVISIONS
WERE REPLACED BY THE PHRASEOLOGY WHICH WAS TAKEN OVER WITHOUT CHANGE
INTO SEC. 8C (1) OF THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937,
ALREADY QUOTED.  HENCE IT IS TO THE LEGISLATIVE HISTORY OF THE 1935
AMENDMENTS THAT WE MUST TURN TO ASCERTAIN THE SIGNIFICANCE OF THE
PHRASE, "DIRECTLY AFFECTS" INTERSTATE COMMERCE, WHICH THEN APPEARED IN
THE STATUTE FOR THE FIRST TIME. 

THE BILLS PROVIDING FOR THE 1935 AMENDMENTS, AS INTRODUCED, ELIMINATED
THE DIFFERENCES BETWEEN SEC. 8(2) AND SEC. 8(3) OF THE 1933 ACT, AS
AMENDED, AND AUTHORIZED THE SECRETARY TO ISSUE LICENSES TO THOSE
"ENGAGED IN THE HANDLING OF ANY AGRICULTURAL COMMODITY OR PRODUCT
THEREOF, OR ANY COMPETING COMMODITY OR PRODUCT THEREOF, IN THE CURRENT
OF OR IN COMPETITION WITH OR SO AS TO BURDEN, OBSTRUCT, OR IN ANY WAY
AFFECT, INTERSTATE OR FOREIGN COMMERCE."  S. 1807, H.R. 7713 AND 8052,
74TH CONG., 1ST SESS.  IN THE REPORTS OF THE HOUSE AND SENATE
COMMITTEES ON AGRICULTURE, IT WAS POINTED OUT THAT ALTHOUGH "THE FULL
EXTENT OF THE FEDERAL POWER OVER INTERSTATE COMMERCE IS INTENDED TO BE
VESTED IN THE SECRETARY," IT WAS "NOT INTENDED TO AUTHORIZE THE
LICENSING OF PERSONS HANDLING GOODS ONLY IN INTRASTATE COMMERCE EXCEPT
WHERE SUCH HANDLING BURDENS, OBSTRUCTS, OR AFFECTS INTERSTATE
COMMERCE."  S. REP. NO. 548, P. 6, H. REP. NO. 808, P. 5, H. REP. NO.
952, P. 5, 74TH CONG., 1ST SESS. 

THESE BILLS WERE PENDING IN CONGRESS WHEN SCHECHTER CORP. V. UNITED
STATES, 295 U.S. 495, WAS DECIDED ON MAY 27, 1935.  IN CONSEQUENCE OF
THAT DECISION A NEW BILL, H.R. 8492, WAS REPORTED OUT WHICH SUPERSEDED
THE PENDING BILLS AND EVENTUALLY BECAME THE ACT OF 1935.  THE NEW BILL,
IN TERMS, PERMITTED THE SECRETARY TO REGULATE THE HANDLING OF PRODUCTS
WHICH "DIRECTLY AFFECTS" INTERSTATE COMMERCE.  AS THE LEGISLATIVE
HISTORY DEMONSTRATES, THIS PHRASEOLOGY WAS DELIBERATELY CHOSEN TO
CONFORM TO THAT ADOPTED IN THE OPINION IN THE SCHECHTER CASE, AS
SIGNIFYING THE FULL REACH OF THE COMMERCE POWER, AND WITH THE AVOWED
PURPOSE OF CONFERRING ON THE SECRETARY AUTHORITY OVER INTRASTATE
PRODUCTS TO THE FULL EXTENT OF THAT POWER.  SEE 79 CONG. REC. 9478 AND
S. REP. NO. 1011, P. 8, H. REP. NO. 1241, P. 8, 74TH CONG., 1ST SESS. 

IN THE SCHECHTER CASE THE COURT WAS CONCERNED ONLY WITH THE ALLEGED
INFRINGEMENTS OF THE "CODE OF FAIR COMPETITION" FOR THE LIVE POULTRY
INDUSTRY OF THE NEW YORK CITY METROPOLITAN AREA, WHICH HAD BEEN ADOPTED
UNDER THE PROVISIONS OF SEC. 3 OF THE NATIONAL INDUSTRIAL RECOVERY ACT
OF JUNE 16, 1933, 48 STAT. 195, 196.  THE VIOLATIONS OF THE CODE
CHARGED WERE THAT WHOLESALE DISTRIBUTORS WHO HAD PURCHASED POULTRY IN
NEW YORK, MOST OF WHICH CAME FROM WITHOUT THE STATE, AND WHO WERE
ENGAGED IN SLAUGHTERING AND RESELLING TO RETAILERS, HAD FAILED TO
MAINTAIN FOR THEIR EMPLOYEES WAGES AND HOURS PRESCRIBED BY THE CODE,
AND HAD FAILED TO ABANDON "SELECTIVE SELLING" TO THEIR CUSTOMERS IN NEW
YORK WHICH THE CODE HAD PROHIBITED. 

THE COURT'S OPINION POINTED OUT THAT THE DEFENDANTS WERE NOT CHARGED
WITH INJURY TO INTERSTATE COMMERCE OR INTERFERENCE WITH PERSONS ENGAGED
IN THAT COMMERCE, AND THAT THE ACTS CHARGED HAD NO DIFFERENT RELATION
TO OR EFFECT UPON INTERSTATE COMMERCE THAN LIKE ACTS IN ANY OTHER LOCAL
BUSINESS WHICH HANDLES COMMODITIES BROUGHT INTO THE STATE.  SCHECHTER
CORP. V. UNITED STATES, SUPRA, 545-6.  IT CHARACTERIZED THEIR EFFECT
UPON INTERSTATE COMMERCE AS "INDIRECT," AND DISTINGUISHED THEM FROM
THOSE ACTS AND TRANSACTIONS INTRASTATE WHICH, BECAUSE THEY "DIRECTLY
AFFECT" INTERSTATE COMMERCE, ARE WITHIN THE CONGRESSIONAL REGULATORY
POWER.  IN EXPLANATION OF THIS DISTINCTION AND AS EXAMPLES OF DIRECT
EFFECTS WHICH ARE WITHIN THE COMMERCE POWER IT REFERRED TO THE "FIXING
OF RATES FOR INTRASTATE TRANSPORTATION WHICH UNJUSTLY DISCRIMINATE
AGAINST INTERSTATE COMMERCE," CITING THE SHREVEPORT CASE, SUPRA, AND
REFERRED TO INTRASTATE RESTRAINTS UPON COMPETITION INJURIOUSLY
AFFECTING INTERSTATE COMMERCE CONDEMNED BY THE SHERMAN ACT, CITING
LOCAL 167 V. UNITED STATES, SUPRA, AND OTHER CASES.    IN ADOPTING THE
CHANGE IN THE NEW BILL, GIVING TO THE SECRETARY THE AUTHORITY TO
REGULATE THE HANDLING OF PRODUCTS "DIRECTLY AFFECTING" INTERSTATE
COMMERCE, AND IN DELETING THE PHRASE "IN COMPETITION WITH" INTERSTATE
COMMERCE, THE HOUSE AND SENATE COMMITTEES ON AGRICULTURE, AFTER
REFERRING TO THE SCHECHTER CASE STATED:  "THIS PHRASE HAS BEEN OMITTED
FROM THE PROPOSED SECTION 8C (1) OF THE BILL WHICH DEALS WITH ORDERS
...  BECAUSE THE PROPOSED LANGUAGE MAKES IT CLEAR THAT THE FULL EXTENT
OF THE FEDERAL POWER OVER INTERSTATE AND FOREIGN COMMERCE AND NO MORE
IS INTENDED TO BE VESTED IN THE SECRETARY OF AGRICULTURE IN CONNECTION
WITH ORDERS."  SEE S. REP. NO. 1011, P. 9; H. REP. NO. 1241, P. 8, 74TH
CONG., 1ST SESS.    THE SAME INTERPRETATION OF THE AMENDMENTS WAS GIVEN
BY THE COMMITTEE REPRESENTATIVE CHARGED WITH EXPLAINING THEM ON THE
FLOOR OF THE SENATE, WHO DECLARED, 79 CONG. REC. 11139, "THE POSITION
OF THE COMMITTEE IN RESPECT TO THESE AMENDMENTS IS THAT INTRASTATE
COMMERCE MAY BURDEN OR AFFECT INTERSTATE COMMERCE AND THAT CONSEQUENTLY
THIS IS A CONSTITUTIONAL ENACTMENT UNDER THE DECISION OF THE COURT IN
THE SHREVEPORT CASE."  THE HOUSE DEBATES ALSO DISCLOSE GENERAL
RECOGNITION THAT THE BILL AS AMENDED WAS INTENDED TO BE A FULL EXERCISE
OF THE FEDERAL POWER OVER COMPETING INTRASTATE MILK.  79 CONG. REC.
9479-9480, 9485. 

THE OPINIONS OF SOME MEMBERS OF THE SENATE,  FN1  CONFLICTING WITH
THE EXPLICIT STATEMENTS OF THE MEANING OF THE STATUTORY LANGUAGE MADE
BY THE COMMITTEE REPORTS AND MEMBERS OF THE COMMITTEES ON THE FLOOR OF
THE SENATE AND THE HOUSE, ARE NOT TO BE TAKEN AS PERSUASIVE OF THE
CONGRESSIONAL PURPOSE.  CF. UNITED STATES V. TRANS-MISSOURI FREIGHT
ASSN., 166 U.S. 290, 318.  MOREOVER, OTHER SENATORS, NOT MEMBERS OF THE
COMMITTEE ON AGRICULTURE, ACCEPTED ITS VIEWS OF THE EXTENT TO WHICH THE
FEDERAL POWER WAS TO BE EXERTED BY THE PROPOSED LEGISLATION.  FN2 

WE THINK IT CLEAR THAT CONGRESS, BY THE PROVISIONS OF SEC. 8C (1),
CONFERRED UPON THE SECRETARY AUTHORITY TO REGULATE THE HANDLING OF
INTRASTATE PRODUCTS WHICH BY REASON OF ITS COMPETITION WITH THE
HANDLING OF THE INTERSTATE MILK SO AFFECTS THAT COMMERCE AS
SUBSTANTIALLY TO INTERFERE WITH ITS REGULATION BY CONGRESS; AND THAT
THE STATUTE SO READ IS A CONSTITUTIONAL EXERCISE OF THE COMMERCE
POWER.  SUCH WAS THE VIEW EXPRESSED IN UNITED STATES V. ROCK ROYAL CO
OPERATIVE, SUPRA, 307 U.S. AT 568.  WE ADHERE TO THAT OPINION NOW. 

THE JUDGMENT WILL BE REVERSED, BUT, AS ERRORS ASSIGNED BELOW HAVE NOT
BEEN PASSED ON THERE OR ARGUED HERE, THE CAUSE WILL BE REMANDED TO THE
CIRCUIT COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY WITH
THIS OPINION.  THE MANDATE WILL ISSUE FORTHWITH.  REVERSED. 

FN1  79 CONG. REC., 11135-6. 

FN2  79 CONG. REC., 11134-9. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :























EXHIBIT SUPPLY CO. V. ACE CORP., 315 U.S. 126 


NO. 154.  ARGUED JANUARY 15, 16, 1942.  - DECIDED FEBRUARY 2, 1942.  -
119 F.2D 349, MODIFIED. 


1.  IN A CASE INVOLVING A PATENT, CONCERNING WHICH THERE WAS NO
CONFLICT OF DECISIONS BY CIRCUIT COURTS OF APPEALS, CERTIORARI WAS
GRANTED BECAUSE OF THE NATURE OF THE QUESTIONS INVOLVED, AND BECAUSE IT
WAS SHOWN THAT THE INDUSTRY AFFECTED BY A DECISION SUSTAINING THE
PATENTEE'S CONTENTIONS WAS LOCATED IN A SINGLE CIRCUIT SO THAT
LITIGATION RESULTING IN SUCH CONFLICTS WOULD NOT BE LIKELY TO OCCUR. 
P. 128. 

2.  CLAIM 4, AS AMENDED, OF THE NELSON PATENT, NO. 2,109,678, RELATES
TO THE STRUCTURE OF A RESILIENT SWITCH OR CIRCUIT CLOSER, SO DISPOSED
ON THE BOARD OF A GAME TABLE AS TO SERVE AS A TARGET WHICH, WHEN STRUCK
BY A FREELY ROLLING BALL, WILL MOMENTARILY CLOSE AN ELECTRICAL
CIRCUIT.  IT CLAIMS AS ELEMENTS OF THE INVENTION A CONDUCTOR STANDARD
ANCHORED TO THE TABLE, A COIL SPRING SURROUNDING THE STANDARD, MEANS
CARRYING THE SPRING PENDANTLY FROM THE UPPER PORTION OF THE STANDARD,
WITH THE COILS OF THE SPRING SPACED FROM THE STANDARD, "AND CONDUCTOR
MEANS IN SAID CIRCUIT AND EMBEDDED IN THE TABLE AT A POINT SPACED FROM
THE STANDARD AND ENGAGEABLE BY A PORTION OF THE SPRING WHEN IT IS
FLEXED TO CLOSE THE AFOREMENTIONED CIRCUIT."  HELD: 

(1)  THE WORD "EMBEDDED" AS USED IN THE CLAIM EMBRACES ANY CONDUCTOR
MEANS SOLIDLY SET OR FIRMLY FIXED IN THE TABLE, WHETHER OR NOT IT
PROTRUDES ABOVE OR BELOW THE SURFACE.  P. 135. 

(2)  BY AMENDMENT OF THE CLAIM SO AS TO DESCRIBE THE CONDUCTOR MEANS
AS "EMBEDDED IN THE TABLE," INSTEAD OF "CARRIED BY THE TABLE," AS IT
STOOD BEFORE AMENDMENT, DEVICES IN WHICH THE CONDUCTOR MEANS IS A NAIL
OR PIN DRIVEN INTO THE TABLE WERE NOT EXCLUDED.  P. 135. 

(3)  BY SUCH AMENDMENT, HOWEVER, MADE TO MEET OBJECTIONS OF THE
PATENT OFFICE BASED ON THE PRIOR ART, THE PATENTEE RESTRICTED THE CLAIM
TO THOSE COMBINATIONS IN WHICH THE CONDUCTOR MEANS, THOUGH CARRIED ON
THE TABLE, IS ALSO EMBEDDED IN IT; RECOGNIZED AND EMPHASIZED THE
DIFFERENCE BETWEEN THE TWO PHRASES, AND PROCLAIMED HIS ABANDONMENT OF
ALL THAT IS EMBRACED IN THAT DIFFERENCE.  P. 136. 

(4)  THE AMENDMENT OPERATES AS A DISCLAIMER OF THAT DIFFERENCE AND
MUST BE STRICTLY CONSTRUED AGAINST HIM.  P. 137. 

(5)  WHAT THE PATENTEE, BY A STRICT CONSTRUCTION OF HIS CLAIM, HAS
LOST BY DISCLAIMER CAN NOT BE REGAINED BY RECOURSE TO THE DOCTRINE OF
EQUIVALENTS.  P. 137. 

EXHIBIT SUPPLY CO. V. ACE PATENTS CORPORATION* . 

*TOGETHER WITH NO. 155, GENCO, INC. V. ACE PATENTS CORPORATION, AND
NO. 156, CHICAGO COIN MACHINE CO. V. ACE PATENTS CORPORATION, ALSO ON
WRITS OF CERTIORARI, 314 U.S. 702, TO THE CIRCUIT COURT OF APPEALS FOR
THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 314 U.S. 702, IN THREE CASES, TO REVIEW THE AFFIRMANCE OF
DECREES HOLDING A PATENT CLAIM VALID AND INFRINGED AND ENJOINING THE
ALLEGED INFRINGEMENTS. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BEGAN THE PRESENT LITIGATION AS THREE SEPARATE SUITS
AGAINST THE RESPECTIVE PETITIONERS FOR INFRINGEMENT OF THE NELSON
PATENT NO. 2,109,678 OF MARCH 1, 1938, FOR A "CONTACT SWITCH FOR BALL
ROLLING GAMES."  THE DEFENSES WERE NON-INVENTION IN VIEW OF THE PRIOR
ART, ANTICIPATION BY PRIOR PUBLICATION, USE AND SALE, NON-INFRINGEMENT
AND A FILE WRAPPER ESTOPPEL.  THE THREE SUITS WERE CONSOLIDATED AND
TRIED TOGETHER.  UPON FULL CONSIDERATION OF THE ISSUES THE DISTRICT
COURT AND THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT HELD
CLAIM 4 OF THE PATENT VALID AND INFRINGED.  119 F.2D 349. 

WE GRANTED CERTIORARI, 314 U.S. 702, ON A PETITION WHICH CHALLENGED
ONLY THE DECREE OF INFRINGEMENT BELOW, ON THE GROUND THAT IT ENLARGED
THE SCOPE OF THE PATENT AS DEFINED BY THE CLAIM, BY RESORT TO THE
DOCTRINE OF EQUIVALENTS, AND THAT NELSON, THE PATENTEE, BY THE
AMENDMENT OF HIS CLAIMS IN THE PATENT OFFICE, HAD SURRENDERED CLAIM 4
SO FAR AS IT WOULD OTHERWISE READ UPON THE ALLEGED INFRINGING DEVICES. 
NEITHER IN THEIR PETITION NOR IN THEIR BRIEF AND ARGUMENT IN THIS COURT
HAVE PETITIONERS CONTENDED THAT THE PATENT IS INVALID FOR WANT OF
INVENTION.  ALTHOUGH THERE IS NO CONFLICT OF DECISION, WE WERE MOVED TO
GRANT THE PETITION BY THE NATURE OF THE QUESTIONS PRESENTED, TOGETHER
WITH A SHOWING THAT THE INDUSTRY AFFECTED BY THE PATENT IS LOCATED IN
THE SEVENTH CIRCUIT SO THAT LITIGATION IN OTHER CIRCUITS RESULTING IN A
CONFLICT OF DECISION WOULD NOT BE LIKELY TO OCCUR. 

THE PATENT RELATES TO THE STRUCTURE OF A RESILIENT SWITCH OR CIRCUIT
CLOSER, SO DISPOSED ON THE BOARD OF A GAME TABLE AS TO SERVE AS A
TARGET WHICH, WHEN STRUCK BY A FREELY ROLLING BALL, WILL MOMENTARILY
CLOSE AN ELECTRICAL CIRCUIT.  SPECIFICATIONS AND DRAWINGS DISCLOSE A
TARGET OR SWITCH COMPRISING A CONDUCTOR STANDARD MOUNTED IN THE TABLE
AND CARRYING A COIL SPRING HAVING A LEG PENDANTLY DISPOSED IN A
CONDUCTOR RING LOCATED IN THE TABLE AND SLIGHTLY OFFSET FROM THE
STANDARD.  THE STANDARD AND RING ARE WIRED IN A CIRCUIT WITH A RELAY
COIL AND A SOURCE OF ELECTRICAL ENERGY.  WHEN A BALL ROLLING ON THE
TABLE BUMPS THE COIL SPRING FROM ANY DIRECTION, THE LEG OF THE SPRING
IS DEFLECTED MOMENTARILY BRINGING IT INTO CONTACT WITH THE RING, SO AS
TO CLOSE THE CIRCUIT FOR OPERATING THE RELAY COIL AND ANY CONNECTED
AUXILIARY GAME DEVICE.  ANY DESIRED NUMBER OF TARGETS MAY BE PLACED ON
THE BOARD IN A SUITABLY SPACED RELATIONSHIP; IN PIN BALL GAMES A SINGLE
BALL MAY SUCCESSIVELY BUMP AND CLOSE A NUMBER OF THE SWITCH DEVICES. 
IN DESCRIBING HIS INVENTION THE PATENTEE DECLARED IT TO BE HIS
INTENTION "TO COVER ALL CHANGES AND MODIFICATIONS OF THE EXAMPLE OF THE
INVENTION HEREIN CHOSEN FOR PURPOSES OF THE DISCLOSURE, WHICH DO NOT
CONSTITUTE DEPARTURES FROM THE SPIRIT AND SCOPE OF THE INVENTION." 

THE PRIOR ART AS DISCLOSED BY THE RECORD SHOWS NO DEVICE IN WHICH THE
COIL SPRING SERVES BOTH AS A TARGET AND A SWITCH.  THE ADVANTAGES OF
THE DEVICE ARE SAID TO BE THAT THE COMBINATION IS PECULIARLY ADAPTED TO
USE IN PIN BALL GAMES; THAT THE COIL SPRING STRUCTURE IS SO ORGANIZED
AS TO FORM BOTH A SWITCH FOR OPERATING AUXILIARY RECORDING OR
SIGNALLING DEVICES AND A TARGET WHICH IS ACCESSIBLE FROM ANY
DIRECTION. 

CLAIM 4  FN1  CLAIMS AS THE ELEMENTS OF THE INVENTION THE CONDUCTOR
STANDARD ANCHORED IN THE TABLE, THE COIL SPRING SURROUNDING THE
STANDARD WHICH CARRIES THE SPRING PENDANTLY FROM ITS TOP, WITH THE
SPRING SPACED FROM THE STANDARD TO ENABLE THE SPRING TO BE RESILIENTLY
FLEXED, "AND CONDUCTOR MEANS IN SAID CIRCUIT AND EMBEDDED IN THE TABLE
AT A POINT SPACED FROM THE STANDARD AND ENGAGEABLE BY A PORTION OF THE
SPRING WHEN IT IS FLEXED TO CLOSE THE AFOREMENTIONED CIRCUIT."  THE
DRAWINGS OF THE PATENT SHOW THE "CONDUCTOR MEANS" LAST MENTIONED IN THE
FORM OF A RING OR FERRULE SET IN THE TABLE WITH ITS AXIS AT RIGHT
ANGLES TO THE TABLE AND WITH ITS FLANGE PROJECTING SLIGHTLY ABOVE THE
SURFACE OF THE TABLE.  THE LEG PENDING FROM THE COIL SPRING IS SO
DISPOSED AT THE CENTER OF THE ANNULAR FERRULE THAT A BALL STRIKING THE
SPRING IN ANY DIRECTION WILL BRING THE PENDANT LEG INTO CONTACT WITH
THE RING SO AS TO CLOSE THE CIRCUIT. 

THE SIX DEVICES ALLEGED TO INFRINGE THE PATENT DIFFER FROM THE
PARTICULAR CLAIM OF THE INVENTION DESCRIBED IN THE SPECIFICATIONS, ONLY
IN THE SPECIFIC FORM AND METHOD OF SUPPORTING THE "CONDUCTOR MEANS"
WHICH IS "ENGAGEABLE BY A PORTION OF THE SPRING WHEN IT IS FLEXED."  IN
TWO OF THE ACCUSED DEVICES, PLAINTIFF'S EXHIBITS 5 AND 7, THERE IS
SUBSTITUTED FOR THE RING CONDUCTOR SET IN THE TABLE A NAIL OR PIN
DRIVEN INTO THE TABLE AND SURROUNDED NEAR ITS UPPER END BY A RING
ATTACHED TO THE END OF THE RESILIENT COIL SPRING, OR FORMED THERE OF
THE COIL WIRE.  WHEN THE SPRING IS STRUCK THE CIRCUIT IS CLOSED BY THE
CONTACT OF RING AND NAIL AT A POINT ABOVE THE TABLE.  THIS ARRANGEMENT
CONTRASTS WITH THAT OF THE CONDUCTORS AS SHOWN IN THE PATENT DRAWINGS,
IN WHICH A RING SET IN THE TABLE AND THE PENDANT LEG OF THE COIL FORM
THE CONTACT AT A POINT NEAR OR BELOW THE SURFACE OF THE TABLE.  IN THE
ONE CASE, THE RING CONDUCTOR IS SUPPORTED BY THE TABLE AND THE
COMPLEMENTARY CONDUCTOR IS ATTACHED TO, OR IS FORMED OF, THE WIRE OF
THE SPRING AT ITS END.  IN THE OTHER, THE LOCATIONS OF THE RING AND OF
THE COMPLEMENTARY CONDUCTOR ARE REVERSED. 

TWO OTHERS OF THE ACCUSED DEVICES, PLAINTIFF'S EXHIBITS 6 AND 10,
SHOW A FURTHER ALTERATION.  IN EXHIBIT 6, THE NAIL OR PIN, INSTEAD OF
BEING DRIVEN DIRECTLY INTO THE TABLE, IS AFFIXED TO AND SUPPORTED BY A
METAL PLATE RESTING ON THE UPPER SURFACE OF THE TABLE WITH THE COIL
SPRING STANDARD PASSING THROUGH IT AND HOLDING IT FIRMLY ON THE TABLE. 
THE CONDUCTOR EXTENDS TO THE WIRE CONNECTION THROUGH A HOLE IN THE
TABLE UNDERNEATH THE PLATE.  IN EXHIBIT 10 THE CONDUCTOR IS INSULATED
FROM THE PLATE, WHICH IS RIGIDLY ANCHORED TO THE COIL SPRING STANDARD,
WHICH IN TURN IS ANCHORED TO THE TABLE. 

IN THE REMAINING TWO ACCUSED DEVICES, PLAINTIFF'S EXHIBITS 8 AND 9, AN
INSULATING CORE OR SLEEVE SURROUNDS THE COIL STANDARD AND SUPPORTS AN
ANNULAR OR ENVELOPING CONDUCTOR WIRED IN THE CIRCUIT, SPACED AND
INSULATED FROM THE COIL STANDARD SO THAT THE CIRCUIT IS CLOSED BY
CONTACT OF THE CONDUCTOR AND THE COIL WHEN IT IS FLEXED.  IN EXHIBIT 8
THE SLEEVE IS ELECTRICALLY CONNECTED WITH A METAL PLATE, HELD IN
POSITION ON THE TOP OF THE TABLE BY THE STANDARD WHICH PASSES THROUGH
THE PLATE.  A WIRE LEADING FROM THE PLATE PASSES THROUGH A HOLE IN THE
TABLE UNDERNEATH THE PLATE.  IN EXHIBIT 9 THE ANNULAR CONDUCTOR IS
LOCATED ABOVE THE TABLE TOP AND A WIRE LEADING FROM IT PASSES THROUGH A
HOLE IN THE TABLE. 

COMPARISON OF THE SEVERAL ACCUSED DEVICES SHOWS THAT IN ALL BUT
EXHIBITS 5 AND 7 THE CONDUCTOR MEANS COMPLEMENTARY TO THE COIL SPRING
IS NOT EMBEDDED IN THE TABLE, BUT IS SUPPORTED BY AN INSULATED PLATE
RESTING ON THE TABLE OR AN INSULATING CORE HELD IN POSITION BY THE
STANDARD.  IN EXHIBITS 6 AND 10 THE CONDUCTOR MEANS PASSES TO ITS WIRE
CONNECTION THROUGH A HOLE IN THE TABLE UNDERNEATH THE PLATE.  IN
EXHIBIT 8 THE CONNECTING WIRE PASSES THROUGH A HOLE IN THE TABLE TO A
METAL PLATE RESTING ON ITS SURFACE, AND IN EXHIBIT 9 TO THE CONDUCTOR
MEANS LOCATED ABOVE THE SURFACE OF THE TABLE. 

PETITIONERS INSIST THAT RESPONDENT IS ESTOPPED TO ASSERT INFRINGEMENT
BY THE FILE WRAPPER RECORD IN THE PATENT OFFICE; AND, IN ANY EVENT,
THAT ESTOPPEL CAN BE AVOIDED AND INFRINGEMENT ESTABLISHED ONLY BY
RESORT TO THE DOCTRINE OF EQUIVALENTS, WHICH THEY ASSERT IS
INCOMPATIBLE WITH THE STATUTORY REQUIREMENTS FOR THE GRANT OF A PATENT
AND WITH THE DOCTRINE THAT THE PATENT CLAIMS MEASURE THE PATENTED
INVENTION. 

THE FILE WRAPPER HISTORY, SO FAR AS NOW RELEVANT, RELATES TO CLAIM 7
WHICH, AFTER AMENDMENT, WAS ALLOWED AS CLAIM 4 NOW IN ISSUE.  THE
ORIGINAL CLAIM 7 WITH ITS AMENDMENTS IS SET FORTH AS FOLLOWS, MATTER
ADDED BY AMENDMENT IN PARENTHESES; MATTER STRICKEN IN ITALICS AND
UNDERSCORED:

(4)  7.  IN A BALL ROLLING GAME HAVING A SUBSTANTIALLY

 HORIZONTAL TABLE OVER WHICH BALLS ARE

      ROLLABLE,

      THE COMBINATION WITH SAID TABLE OF A SUBSTANTIALLY

      VERTICAL STANDARD ANCHORED IN SAID TABLE

      WITH ITS LOWER

      END CARRYING ON THE UNDERSIDE OF THE TABLE A

      LEAD FOR AN 

A  FN1  ELECTRIC CIRCUIT AND ITS UPPER END EXTENDING

      A SUBSTANTIAL DISTANCE ABOVE THE TOP SURFACE

      OF THE TABLE, A

      COIL SPRING SURROUNDING THE STANDARD, MEANS CARYING

      SAID SPRING PENDANTLY FROM THE UPPER PORTION OF

      THE 

PER C   STANDARD (ABOVE THE TABLE) WITH THE

      COILS OF THE SPRING SPACED FROM THE 

"   "   STANDARD AND THE LOWER END OF THE COIL SPRING

      TERMINATING 

"   "   AT A DISTANCE ABOVE THE TOP SURFACE OF THE TABLE

      TO ENABLE THE SPRING TO BE RESILIENTLY FLEXED

      WHEN BUMPED

  BY A BALL ROLLING ON THE TABLE, SAID SPRING BEING

IN THE

      AFOREMENTIONED CIRCUIT AND CONSTITUTING A

      CONDUCTOR, AND 

PER B   OTHER CONDUCTOR MEANS (IN SAID CIRCUIT

      AND EMBEDDED IN) CARRIED BY THE TABLE

      AT A POINT

      SPACED FROM THE STANDARD AND ENGAGEABLE BY A

      PORTION OF

      THE SPRING WHEN IT IS FLEXED TO CLOSE THE AFOREMENTIONED

      CIRCUIT. 

THE ORIGINAL APPLICATION CONTAINED SIX CLAIMS, ALL OF WHICH THE
EXAMINER REJECTED BECAUSE HE THOUGHT NO PATENTABLE SIGNIFICANCE HAD
BEEN SHOWN.  THE INVENTOR SUBMITTED CERTAIN AMENDMENTS, AND TWO NEW
CLAIMS, 7 AND 8, AND INDUCED THE EXAMINER TO RECONSIDER THE
PATENTABILITY OF THE INVENTION.  FOUR OF THE CLAIMS WERE THEN ALLOWED,
BUT THE EXAMINER REJECTED CLAIM 7 AS FAILING TO CLAIM THE INVENTION. 
HE SAID:  "IT IS OLD IN THE ART TO MAKE AN ELECTRICAL CONTACT BY
FLEXING A COIL SPRING AS SHOWN BY THE ART ALREADY CITED IN THE CASE. 
IN ORDER TO DISTINGUISH OVER THE REFERENCES THEREFOR, THE APPLICANT'S
PARTICULAR TYPE OF CONTACT STRUCTURE, COMPRISING AN EXTENSION ON THE
COIL SPRING ADAPTED TO ENGAGE AN ANNULAR CONTACT EMBEDDED IN THE TABLE,
MUST APPEAR IN THE CLAIMS.  ...  "  APPLICANT REJECTED THE EXAMINER'S
SUGGESTION THAT THE "CONTACT STRUCTURE" BE ADAPTED TO ENGAGE "AN
ANNULAR CONTACT EMBEDDED IN THE TABLE."  INSTEAD HE CANCELLED "OTHER"
FROM THE CLAIM AND SUBSTITUTED FOR "CARRIED BY" THE PHRASE "IN SAID
CIRCUIT AND EMBEDDED IN," SAYING CLAIM 7 HAS BEEN "SIGNIFICANTLY
AMENDED" "TO DEFINE THE COMPLEMENTARY CONDUCTOR CONTACT AS BEING
EMBEDDED IN THE TABLE."  HE ADDED THAT "IT IS TOO FAR TO GO TO STATE
THAT THE SPECIFIC LEG 19 MUST BE DEFINED," AND "THE ALLOWED CLAIMS CAN
IT SEEMS, BE VERY SIMPLY AVOIDED BY TAKING THE LEG 19, SEPARATING IT
FROM THE SPRING 18 AND EMBEDDING IT AS A PIN IN THE TABLE SO THAT THE
SPRING WHEN FLEXED WOULD CONTACT THE PIN.  ...  CLAIM 7 COVERS SUCH
ALTERNATIVE FORM AND  ...  IN JUSTICE TO APPLICANT  ...  SHOULD BE
ALLOWED." 

THE EXAMINER IN REPLY RECOGNIZED AS "TRUE" APPLICANT'S SUGGESTION
THAT IF THE LEG PENDANT FROM THE SPRING "WERE REMOVED FROM THE SPRING
AND EMBEDDED IN THE TABLE AN OPERATIVE DEVICE WOULD RESULT," BUT
POINTED OUT THAT THE DEVICE CLAIMED BY THE AMENDMENT "WOULD BE
INOPERATIVE AS THE COIL SPRING COULD NOT BOTH TERMINATE AT A DISTANCE
ABOVE THE TABLE AND EXTEND INTO A FERRULE EMBEDDED THEREIN."  THEREUPON
THE APPLICANT ADDED TO THE CLAIM THE WORDS "ABOVE THE TABLE" AND
CANCELLED THE PHRASE, "AND THE LOWER END OF THE COIL SPRING TERMINATING
AT A DISTANCE ABOVE THE TOP SURFACE OF THE TABLE."  THE CLAIM AS
AMENDED WAS THEN ALLOWED AS CLAIM 4. 

THE CLAIM BEFORE AMENDMENT PLAINLY READ ON PLAINTIFF'S EXHIBITS 5 AND
7 IN WHICH THE NAIL OR PIN CONDUCTOR IS DRIVEN INTO THE TABLE, SINCE
THE NAIL OR PIN IS A "CONDUCTOR MEANS CARRIED BY THE TABLE" "ENGAGEABLE
BY A PORTION OF THE SPRING WHEN FLEXED."  THE CLAIM THUS READ IS FOR AN
OPERATIVE DEVICE, SINCE THE NAIL OR PIN PROJECTS ABOVE THE TABLE AND
MAY BE ENGAGED BY THE COIL SPRING SIMILARLY LOCATED.  THE CLAIM, AS
AMENDED AND ALLOWED AS CLAIM 4, LIKEWISE READS ON PLAINTIFF'S EXHIBITS
5 AND 7 IF THE NAIL OR PIN CONDUCTOR WHICH IS DRIVEN INTO THE TABLE IS
"EMBEDDED IN THE TABLE." 

PETITIONERS DO NOT SERIOUSLY ASSERT HERE THAT IT IS NOT SO EMBEDDED. 
IN FACT, THEIR BRIEF EXPRESSLY STATES THAT "WE PASS THIS CONTENTION." 
THEY COULD NOT WELL DO OTHERWISE, FOR THE PIN OR NAIL, EVEN THOUGH IT
PROTRUDES ABOVE OR BELOW THE TABLE, NOT ONLY CONFORMS TO THE DICTIONARY
DEFINITION OF "EMBED" - "TO SET SOLIDLY AS IN A BED," WEBSTER; "TO FIX
FIRMLY IN A SURROUNDING MASS OF SOME SOLID MATERIAL," OXFORD DICTIONARY
- BUT EXAMINATION OF THE DRAWINGS AND SPECIFICATIONS INDICATES CLEARLY
ENOUGH THAT THE CLAIM WAS NOT INTENDED TO BE LIMITED TO A COMPLEMENTARY
CONDUCTOR LOCATED WHOLLY BETWEEN THE UPPER AND NETHER SURFACES OF THE
TABLE.  THE SPECIFICATIONS AND DRAWINGS EXPRESS NO SUCH LIMITATION, AND
IT IS CLEAR THAT THE USE OF THE WORD "EMBEDDED" IN THE CLAIM AS FINALLY
AMENDED, WHEN READ IN ITS CONTEXT OF CLAIM AND SPECIFICATIONS, DOES NOT
INDICATE SUCH A LIMITATION.    THE PATENT DRAWINGS SHOW THE EMBEDDED
RING CONDUCTOR EXTENDING SLIGHTLY BOTH ABOVE AND BELOW THE TABLE.  THE
EXAMINER, IN HIS SECOND REJECTION OF CLAIM 7, IN SAYING THAT IF THE LEG
PENDANT FROM THE SPRING WERE REMOVED FROM THE SPRING AND "EMBEDDED" IN
THE TABLE AN OPERATIVE DEVICE WOULD RESULT, COULD NOT HAVE REFERRED TO
THE EMBEDDED LEG OR NAIL AS BEING WHOLLY LOCATED BELOW THE SURFACE OF
THE TABLE, SINCE THE PIN SO DISPOSED WOULD NOT BE "ENGAGEABLE" "BY A
PORTION OF THE SPRING WHEN IT IS FLEXED" BY A BALL ROLLING IN ANY
DIRECTION.  THE TERM IS TO BE READ AS USED IN A PERMISSIBLE SENSE WHICH
WOULD CONFORM TO THE DRAWINGS AND THE FUNCTION WHICH THE CONDUCTOR TO
WHICH THE TERM WAS APPLIED WAS OBVIOUSLY INTENDED TO PERFORM. 

WE THINK THAT THE WORD "EMBEDDED," AS APPLIED IN CLAIM 4, MUST BE
TAKEN TO EMBRACE ANY CONDUCTOR MEANS SOLIDLY SET OR FIRMLY FIXED IN THE
TABLE, WHETHER OR NOT IT PROTRUDES ABOVE OR BELOW THE SURFACE.  CLAIM 7
BEFORE AMENDMENT READ ON THE ACCUSED DEVICES, PLAINTIFF'S EXHIBITS 5
AND 7, WHICH EXHIBIT THE NAIL OR PIN EMBEDDED IN THE TABLE BUT
PROTRUDING ABOVE ITS SURFACE.  CONSEQUENTLY THE PATENTEE BY AMENDING
THE CLAIM SO AS TO DEFINE THE CONDUCTOR MEANS AS EMBEDDED IN THE TABLE
DID NOT EXCLUDE FROM THE AMENDED CLAIM DEVICES EXEMPLIFIED BY THESE
EXHIBITS, AND THEY MUST BE DEEMED TO BE INFRINGEMENTS. 

THERE REMAINS THE QUESTION WHETHER RESPONDENT MAY RELY UPON THE
DOCTRINE OF EQUIVALENTS TO ESTABLISH INFRINGEMENT BY THE FOUR OTHER
ACCUSED DEVICES.  RESPONDENT CONCEDES THAT THE CONDUCTOR MEANS IN THE
FOUR DEVICES ARE NOT LITERALLY "EMBEDDED IN THE TABLE," BUT INSISTS
THAT THE CHANGES IN STRUCTURE WHICH THEY EXHIBIT OVER THAT OF
PLAINTIFF'S EXHIBITS 5 AND 7 ARE BUT THE MECHANICAL EQUIVALENTS OF THE
"CONDUCTOR MEANS EMBEDDED IN THE TABLE" CALLED FOR BY THE AMENDED
CLAIM, AND SO ARE ENTITLED TO THE PROTECTION AFFORDED BY THE DOCTRINE
OF EQUIVALENTS.  PETITIONERS DO NOT SERIOUSLY URGE THAT THE CONDUCTOR
MEANS IN THE FOUR ACCUSED DEVICES ARE NOT MECHANICAL EQUIVALENTS OF THE
CONDUCTOR MEANS EMBEDDED IN THE TABLE WHICH THE PATENT CLAIMS. 
INSTEAD, THEY ARGUE THAT THE DOCTRINE SHOULD BE DISCARDED BECAUSE IT
DOES NOT SATISFY THE DEMANDS OF THE STATUTE THAT THE PATENT SHALL
DESCRIBE THE INVENTION.  R.S. SEC. 4888; 35 U.S.C. SEC. 33. 

WE DO NOT FIND IT NECESSARY TO RESOLVE THESE CONTENTIONS HERE. 
WHATEVER MAY BE THE APPROPRIATE SCOPE AND APPLICATION OF THE DOCTRINE
OF EQUIVALENTS, WHERE A CLAIM IS ALLOWED WITHOUT A RESTRICTIVE
AMENDMENT, IT HAS LONG BEEN SETTLED THAT RECOURSE MAY NOT BE HAD TO
THAT DOCTRINE TO RECAPTURE CLAIMS WHICH THE PATENTEE HAS SURRENDERED BY
AMENDMENT. 

ASSUMING THAT THE PATENTEE WOULD HAVE BEEN ENTITLED TO EQUIVALENTS
EMBRACING THE ACCUSED DEVICES HAD HE ORIGINALLY CLAIMED A "CONDUCTOR
MEANS EMBEDDED IN THE TABLE," A VERY DIFFERENT ISSUE IS PRESENTED WHEN
THE APPLICANT, IN ORDER TO MEET OBJECTIONS IN THE PATENT OFFICE, BASED
ON REFERENCES TO THE PRIOR ART, ADOPTED THE PHRASE AS A SUBSTITUTE FOR
THE BROADER ONE "CARRIED BY THE TABLE."  HAD CLAIM 7 BEEN ALLOWED IN
ITS ORIGINAL FORM, IT WOULD HAVE READ UPON ALL THE ACCUSED DEVICES,
SINCE IN ALL THE CONDUCTOR MEANS COMPLEMENTARY TO THE COIL SPRING ARE
"CARRIED BY THE TABLE."  BY STRIKING THAT PHRASE FROM THE CLAIM AND
SUBSTITUTING FOR IT "EMBEDDED IN THE TABLE," THE APPLICANT RESTRICTED
HIS CLAIM TO THOSE COMBINATIONS IN WHICH THE CONDUCTOR MEANS, THOUGH
CARRIED ON THE TABLE, IS ALSO EMBEDDED IN IT.  BY THE AMENDMENT, HE
RECOGNIZED AND EMPHASIZED THE DIFFERENCE BETWEEN THE TWO PHRASES AND
PROCLAIMED HIS ABANDONMENT OF ALL THAT IS EMBRACED IN THAT DIFFERENCE. 
HUBBELL V. UNITED STATES, 179 U.S. 77, 83; WEBER ELECTRIC CO. V.
FREEMAN ELECTRIC CO., 256 U.S. 668, 677-78; I.T.S. RUBBER CO. V. ESSEX
RUBBER CO., 272 U.S. 429, 440, 444; SMITH V. MAGIC CITY KENNEL CLUB,
282 U.S. 784, 789; SCHRIBER CO. V. CLEVELAND TRUST CO., 311 U.S. 211;
CF. IN CASE OF DISCLAIMER ALTOONA THEATRES V. TRI-ERGON CORP., 294 U.S.
477, 492, 493.  THE DIFFERENCE WHICH HE THUS DISCLAIMED MUST BE
REGARDED AS MATERIAL, AND SINCE THE AMENDMENT OPERATES AS A DISCLAIMER
OF THAT DIFFERENCE IT MUST BE STRICTLY CONSTRUED AGAINST HIM.  SMITH V.
MAGIC CITY KENNEL CLUB, SUPRA, 790; SHEPARD V. CARRIGAN, 116 U.S. 593,
598; GOODYEAR DENTAL VULCANITE CO. V. DAVIS, 102 U.S. 222, 228.  AS THE
QUESTION IS ONE OF CONSTRUCTION OF THE CLAIM, IT IS IMMATERIAL WHETHER
THE EXAMINER WAS RIGHT OR WRONG IN REJECTING THE CLAIM AS FILED. 
HUBBELL V. UNITED STATES, SUPRA, 83; I.T.S. RUBBER CO. V. ESSEX RUBBER
CO., SUPRA, 443.  IT FOLLOWS THAT WHAT THE PATENTEE, BY A STRICT
CONSTRUCTION OF THE CLAIM, HAS DISCLAIMED - CONDUCTORS WHICH ARE
CARRIED BY THE TABLE BUT NOT EMBEDDED IN IT - CANNOT NOW BE REGAINED BY
RECOURSE TO THE DOCTRINE OF EQUIVALENTS, WHICH AT MOST OPERATES, BY
LIBERAL CONSTRUCTION, TO SECURE TO THE INVENTOR THE FULL BENEFITS, NOT
DISCLAIMED, OF THE CLAIMS ALLOWED. 

PLAINTIFF'S EXHIBITS 5 AND 7 DO, AND ITS EXHIBITS 6, 8, 9 AND 10 DO
NOT, INFRINGE.  THE JUDGMENTS WILL BE MODIFIED ACCORDINGLY.  MODIFIED. 

FN1  "4.  IN A BALL ROLLING GAME HAVING A SUBSTANTIALLY HORIZONTAL
TABLE OVER WHICH BALLS ARE ROLLABLE, THE COMBINATION WITH SAID TABLE OF
A SUBSTANTIALLY VERTICAL STANDARD ANCHORED IN SAID TABLE WITH ITS LOWER
END CARRYING ON THE UNDERSIDE OF THE TABLE A LEAD FOR AN ELECTRIC
CIRCUIT AND ITS UPPER END EXTENDING A SUBSTANTIAL DISTANCE ABOVE THE
TOP SURFACE OF THE TABLE, A COIL SPRING SURROUNDING THE STANDARD, MEANS
CARRYING SAID SPRING PENDANTLY FROM THE UPPER PORTION OF THE STANDARD
ABOVE THE TABLE WITH THE COILS OF THE SPRING SPACED FROM THE STANDARD
TO ENABLE THE SPRING TO BE RESILIENTLY FLEXED WHEN BUMPED BY A BALL
ROLLING ON THE TABLE, SAID SPRING BEING IN THE AFOREMENTIONED CIRCUIT
AND CONSTITUTING A CONDUCTOR, AND CONDUCTOR MEANS IN SAID CIRCUIT AND
EMBEDDED IN THE TABLE AT A POINT SPACED FROM THE STANDARD AND
ENGAGEABLE BY A PORTION OF THE SPRING WHEN IT IS FLEXED TO CLOSE THE
AFOREMENTIONED CIRCUIT." 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS
CONCURS: 

I THINK THE JUDGMENTS BELOW SHOULD BE REVERSED IN FULL. 

THERE CAN BE NO INFRINGEMENT OF A VOID PATENT, AND A PATENT WHICH
SHOWS NEITHER INVENTION NOR DISCOVERY IS VOID.  FN1  THE MERE
APPLICATION OF AN OLD MECHANICAL INSTRUMENT TO A NEW USE IS NOT AN
INVENTION AND THEREFORE NOT PATENTABLE.  FN2 

THE COMBINATION PATENTED HERE CONTAINS NOT A SINGLE NEW ELEMENT.  THE
WHOLE DEVICE IS NOTHING MORE THAN AN ELECTRIC SWITCH MOUNTED ON A
TABLE, WHICH CLOSES AND OPENS WITH THE FLEXING AND REFLEXING OF AN
ORDINARY COIL SPRING WHEN HIT BY A ROLLING BALL.  THE SPRING, STANDING
UPRIGHT ON THE TABLE, SERVES AS A TARGET IN A PIN BALL GAME, ITS
RESILIENCY BEING UTILIZED NOT ONLY TO MAKE AND BREAK THE CIRCUIT BUT TO
MAKE THE BALL REBOUND. 

THE CONSTITUTION AUTHORIZES THE GRANTING OF PATENT PRIVILEGES ONLY TO
INVENTORS WHO MAKE "DISCOVERIES."  AND THE STATUTE PROVIDES FOR THE
GRANTING OF PATENTS ONLY TO THOSE WHO HAVE "INVENTED OR DISCOVERED"
SOMETHING "NEW."  TO CALL THE DEVICE HERE AN INVENTION OR DISCOVERY
SUCH AS WAS CONTEMPLATED BY THE CONSTITUTION OR THE STATUTE IS, IN MY
JUDGMENT, TO DEGRADE THE MEANING OF THOSE TERMS. 

PATENTEES HAVE RIGHTS GIVEN THEM BY LAW.  "BUT THE PUBLIC HAS RIGHTS
ALSO.  THE RIGHTS OF BOTH SHOULD BE UPHELD AND ENFORCED BY AN EQUALLY
FIRM HAND, WHENEVER THEY COME UNDER JUDICIAL CONSIDERATION."  FN3  BY
FAILING TO ASSIGN ERROR ON THE ISSUE OF PATENTABILITY, PARTIES TO AN
INFRINGEMENT SUIT SHOULD NOT BE PERMITTED TO FORECLOSE A COURT FROM
PROTECTING THE PUBLIC INTEREST.  AND HERE, AS IN OTHER CASES WHERE
THERE IS PLAIN ERROR, WE SHOULD NOTICE IT.  FN4 

FN1  DUNBAR V. MYERS, 94 U.S. 187; THOMPSON V. BOISSELIER, 114 U.S.
1; SARANAC MACHINE CORP. V. WIREBOUNDS CO., 282 U.S. 704. 

FN2  PHILLIPS V. PAGE, 24 HOW.  164; PARAMOUNT PUBLIX CORP. V. TRI
ERGON CORP., 294 U.S. 464. 

FN3  DENSMORE V. SCOFIELD, 102 U.S. 375, 378. 

FN4  SIBBACH V. WILSON & CO., 312 U.S. 1, 16. 
..END :












WRIGHT V. LOGAN, 315 U.S. 139 


NO. 229.  ARGUED JANUARY 9, 1942.  - DECIDED FEBRUARY 2, 1942.  - 119
F.2D 354, REVERSED. 


1.  THE RIGHT OF A FARMER TO BE ADJUDGED A BANKRUPT UNDER SEC. 75(S)
OF THE BANKRUPTCY ACT IS NOT CONDITIONED UPON THE DILIGENCE WITH WHICH
HE HAS SOUGHT TO OBTAIN A COMPOSITION OR AN EXTENSION UNDER SEC. 75(A)
(R).  P. 141. 

2.  ANY RIGHT TO REDEEM FROM A MORTGAGE FORECLOSURE AND SALE WHICH A
FARMER-DEBTOR HAS AT THE TIME OF APPLYING FOR ADJUDICATION UNDER SEC.
75 OF THE BANKRUPTCY ACT CONTINUES TO BE PART OF HIS ASSETS AND SUBJECT
TO THE ADMINISTRATION OF THE BANKRUPTCY COURT.  P. 142. 

WRIGHT ET AL. V. LOGAN ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 314 U.S. 592, TO REVIEW A JUDGMENT WHICH AFFIRMED A
JUDGMENT OF THE BANKRUPTCY COURT DISMISSING BANKRUPTCY PROCEEDINGS BY
FARMER-DEBTORS AND UPHOLDING THE FULL FORCE AND EFFECT OF FORECLOSURE
PROCEEDINGS IN A STATE COURT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS ARE ILLINOIS FARMERS.  PURSUANT TO A STATE COURT
FORECLOSURE DECREE, FORTY ACRES OF THEIR FARM LAND WERE SOLD TO W. S.
LOGAN, THE MORTGAGEE.  THE STATE COURT MASTER EXECUTED AND DELIVERED TO
LOGAN A CERTIFICATE OF SALE, BUT A DEED WAS NOT GIVEN AT THAT TIME.  BY
ILLINOIS STATUTE, MORTGAGORS ARE GIVEN THE RIGHT TO REDEEM FOR TWELVE
MONTHS AFTER THE DATE OF FORECLOSURE SALE; AND IF THIS RIGHT IS NOT
EXERCISED, CREDITORS ARE GIVEN A SIMILAR RIGHT FOR AN ADDITIONAL THREE
MONTHS THEREAFTER.  ILL. REV. STAT. (1941) C. 77, SECS. 18, 20.  ON MAY
3, 1934, A DAY BEFORE THE EXPIRATION OF FIFTEEN MONTHS FROM THE SALE,
THE PETITIONERS FILED IN FEDERAL DISTRICT COURT A PETITION FOR
EXTENSION OF TIME IN WHICH TO PAY THEIR DEBTS, UNDER SEC. 74 OF THE
BANKRUPTCY ACT.  11 U.S.C. SEC. 202.  PRIOR TO THAT TIME THERE HAD BEEN
AN ORAL AGREEMENT WHICH THE APPELLATE COURT OF THE THIRD DISTRICT OF
ILLINOIS SUBSEQUENTLY (JANUARY 15, 1937) HELD TO HAVE THE EFFECT OF
KEEPING THE PETITIONERS' RIGHT OF REDEMPTION ALIVE.  288 ILL. APP. 481,
6 N.E.2D 265.  THE FORTY ACRES WERE INCLUDED IN THE PETITIONERS'
SCHEDULE OF ASSETS SUBMITTED IN THE SEC. 74 PROCEEDINGS, AND LOGAN WAS
LISTED AS A CREDITOR.  THE DISTRICT COURT REFUSED TO GRANT THE PROPOSED
EXTENSION, AND THE CIRCUIT COURT OF APPEALS AFFIRMED.  75 F.2D 687. 

THEREAFTER, APRIL 5, 1935, THE PETITIONERS FILED AN AMENDMENT SEEKING
COMPOSITION OR EXTENSION OF THEIR INDEBTEDNESS AS AUTHORIZED BY SUB
PARAGRAPHS (A) TO (R) OF SEC. 75 OF THE BANKRUPTCY ACT.  11 U.S.C. SEC.
203.  FINDING THAT THE PETITION WAS FILED IN GOOD FAITH AND WAS IN
ACCORDANCE WITH THE REQUIREMENTS OF THE ACT, THE JUDGE REFERRED THE
MATTER TO A CONCILIATION COMMISSIONER.  SUBSEQUENT EFFORTS TO EFFECT A
COMPOSITION OR EXTENSION HAVING FAILED, ON MARCH 2, 1940, THE
PETITIONERS FILED AN AMENDMENT ALLEGING THIS FAILURE AND ASKING THAT
THE COURT ADJUDICATE THEM BANKRUPT UNDER 75(S), WHICH PROVIDES:  "ANY
FARMER FAILING TO OBTAIN THE ACCEPTANCE OF A MAJORITY IN NUMBER AND
AMOUNT OF ALL CREDITORS WHOSE CLAIMS ARE AFFECTED BY A COMPOSITION OR
EXTENSION PROPOSAL  ...  MAY AMEND HIS PETITION OR ANSWER ASKING TO BE
ADJUDGED A BANKRUPT." 

ALTHOUGH THE PETITIONERS' ALLEGATIONS BROUGHT THEM SQUARELY WITHIN
THE LANGUAGE OF 75(S), THE DISTRICT COURT ORDERED THAT THE AMENDED
PETITION BE DENIED; THAT THE PROCEEDINGS BE DISMISSED; THAT THE
MORTGAGEE'S SUCCESSORS IN INTEREST  FN1  BE PERMITTED TO EXERCISE
RIGHTS AS OWNERS UNDER THE FORECLOSURE; THAT THE DEED ISSUED TO THE
MORTGAGEE BY THE STATE MASTER IN CHANCERY AFTER THE BANKRUPTCY
PROCEEDINGS HAD BEGUN BE GIVEN FULL FORCE AND EFFECT; AND THAT
POSSESSION OF THE FORTY ACRES BE SURRENDERED TO THE RESPONDENTS.  THE
CIRCUIT COURT OF APPEALS AFFIRMED, 119 F.2D 354, HOLDING THAT 75
IMPOSES UPON FARMER DEBTORS DUTIES CORRESPONDING TO THE PRIVILEGES
CONFERRED; THAT IF A FARMER DEBTOR FAILS TO PROSECUTE HIS COMPOSITION
PROCEEDINGS TO A CONCLUSION WITHIN A REASONABLE TIME, THE COURT CAN
DENY HIM THE PRIVILEGE OF ADJUDICATION UNDER 75(S); AND THAT, ALTHOUGH
THESE FARMER DEBTORS HAD FILED UNDER OTHER SUBSECTIONS OF 75, THEY HAD
ALREADY ENJOYED ALL THE BENEFITS TO WHICH THEY WOULD HAVE BEEN ENTITLED
UNDER 75(S), AND THEREFORE WERE NOT ENTITLED TO OBTAIN A REPETITION OF
THOSE BENEFITS BY WHAT THE COURT THOUGHT WAS A MERE FORMAL CHANGE IN
THEIR PETITION.  BECAUSE OF AN ASSERTED CONFLICT WITH COHAN V. ELDER,
118 F.2D 850, AND BECAUSE OF THE IMPORTANCE OF THE ISSUE IN FARMER
DEBTOR CASES, WE GRANTED CERTIORARI. 

ADJUDICATION UPON THE DILIGENCE WITH WHICH HE HAS SOUGHT TO OBTAIN
COMPOSITION OR EXTENSION UNDER SUBSECTIONS (A) TO (R).  IT "APPLIES
EXPLICITLY TO A CASE OF A FARMER WHO HAS FAILED TO OBTAIN THE
ACCEPTANCE OR A MAJORITY IN NUMBER AND AMOUNT OF ALL CREDITORS WHOSE
CLAIMS ARE AFFECTED BY A PROPOSAL FOR A COMPOSITION OF AN EXTENSION OF
TIME TO PAY HIS DEBTS."  JOHN HANCOCK INS. CO. V. BARTELS, 308 U.S.
180, 184.  THAT WAS THE SITUATION OF THE FARMERS HERE.  AND "THE ACT
MUST BE LIBERALLY CONSTRUED TO GIVE THE DEBTOR THE FULL MEASURE OF THE
RELIEF AFFORDED BY CONGRESS  ...  LEST ITS BENEFITS BE FRITTERED AWAY
BY NARROW FORMALISTIC INTERPRETATIONS WHICH DISREGARD THE SPIRIT AND
THE LETTER OF THE ACT."  WRIGHT V. UNION CENTRAL INS. CO., 311 U.S.
273, 279.  FARMERS CANNOT BE DEPRIVED OF THE BENEFITS OF THE ACT
BECAUSE A COURT MAY BELIEVE THAT THEY HAVE RECEIVED THE EQUIVALENT OF
WHAT IT PRESCRIBES.  CF. BORCHARD V. CALIFORNIA BANK, 310 U.S. 311.  WE
THINK THE BARTELS, WRIGHT, AND BORCHARD CASES CONTROL OUR CONCLUSION
HERE, AND THAT THE COURT BELOW WAS IN ERROR IN DISMISSING THE
APPLICATIONS FOR ADJUDICATION UNDER 75(S). 

IN THE MEMORANDUM ACCOMPANYING THE DISTRICT COURT'S ORDER DIRECTING
THE PETITIONERS TO SURRENDER POSSESSION OF THE DISPUTED FORTY ACRES,
THERE IS NO DISCUSSION OF THEIR RIGHT TO REDEEM.  WE THEREFORE TREAT
THE ORDER AS BASED ON THE HOLDING THAT THE PETITIONERS' LACK OF
DILIGENCE DEPRIVED THEM OF THE BENEFITS OF 75(S) AND THAT THE
EQUIVALENT OF THE BENEFITS OF 75(S) HAD ALREADY BEEN CONFERRED ANYWAY. 
BECAUSE WE CONSIDER SUCH A HOLDING ERRONEOUS, WE FIND IT UNNECESSARY TO
PASS UPON OTHER QUESTIONS DISCUSSED BY THE CIRCUIT COURT OF APPEALS,
CONCERNING SURVIVAL OF THE PETITIONERS' RIGHT TO REDEEM.  IT IS
NEVERTHELESS APPROPRIATE TO POINT OUT AT THIS TIME THAT WHATEVER RIGHT
OF REDEMPTION THE PETITIONERS HAD WHEN THEY FIRST APPLIED FOR
ADJUDICATION UNDER 75 CONTINUED TO BE A PART OF THEIR ASSETS, SUBJECT
TO ADMINISTRATION BY THE BANKRUPTCY COURT.  FOR 75(N) SUBJECTS ALL OF
THE FARMER DEBTOR'S ASSETS, SPECIFICALLY INCLUDING RIGHTS OF
REDEMPTION, TO THE JURISDICTION OF THE BANKRUPTCY COURT, AND PROVIDES
THAT "THE PERIOD OF REDEMPTION SHALL BE EXTENDED  ...  FOR THE PERIOD
NECESSARY FOR THE PURPOSE OF CARRYING OUT THE PROVISIONS OF THIS
49 STAT. 942).  SEE WRIGHT V. UNION CENTRAL INS. CO., 304 U.S. 502, 513
516. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT
FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  W. S. LOGAN, THE ORIGINAL MORTGAGEE, DIED WHILE THE PROCEEDINGS
WERE PENDING.  THE RESPONDENTS HERE ARE DEVISEES UNDER HIS WILL. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










COLUMBIA RIVER CO. V. HINTON, 315 U.S. 143 


NO. 142.  ARGUED JANUARY 12, 13, 1942.  - DECIDED FEBRUARY 2, 1942.  -
117 F.2D 310, REVERSED. 


A DISPUTE BETWEEN A PROCESSOR OF FISH ON THE ONE HAND, AND INDEPENDENT
FISHERMEN AND THEIR ASSOCIATION ON THE OTHER, CONCERNING ONLY THE TERMS
UPON WHICH THE FISHERMEN WILL SELL FISH TO THE PROCESSOR, AND IN NO WAY
INVOLVING THE EMPLOYER-EMPLOYEE RELATIONSHIP, IS NOT A "LABOR DISPUTE"
WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT, WHICH DECLARES THAT NO
COURT OF THE UNITED STATES SHALL, EXCEPT UPON CERTAIN SPECIFIED
CONDITIONS, HAVE JURISDICTION TO ISSUE AN INJUNCTION "IN A CASE
INVOLVING OR GROWING OUT OF A LABOR DISPUTE."  P. 145. 

COLUMBIA RIVER PACKERS ASSOCIATION, INC. V. HINTON ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 314 U.S. 600, TO REVIEW A DECREE WHICH REVERSED A DECREE
OF INJUNCTION GRANTED BY THE DISTRICT COURT, 34 F.SUPP.  970, IN A SUIT
BY THE ABOVE-NAMED PACKERS ASSOCIATION TO ENJOIN NUMEROUS FISHERMEN AND
THEIR ASSOCIATION OR UNION, THE RESPONDENTS HEREIN, FROM AN ALLEGED
ATTEMPT TO MONOPOLIZE THE FISH INDUSTRY IN OREGON, WASHINGTON AND
ALASKA, IN VIOLATION OF THE SHERMAN ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER FILED A BILL FOR AN INJUNCTION CHARGING THAT THE
RESPONDENTS ATTEMPTED TO MONOPOLIZE THE FISH INDUSTRY IN OREGON,
WASHINGTON, AND ALASKA, IN VIOLATION OF THE SHERMAN ACT.  26 STAT.
209.  THE NORRIS-LAGUARDIA ACT DECLARES THAT NO FEDERAL COURT SHALL,
EXCEPT UNDER CERTAIN SPECIFIED CIRCUMSTANCES, HAVE JURISDICTION TO
ISSUE AN INJUNCTION IN ANY CASE WHICH INVOLVES OR GROWS OUT OF A "LABOR
DISPUTE."  FN1  THE JURISDICTIONAL REQUIREMENTS WERE NOT PRESENT HERE. 
BUT THE DISTRICT COURT HELD THAT, SINCE THIS CASE DID NOT INVOLVE OR
GROW OUT OF A "LABOR DISPUTE," THESE REQUIREMENTS WERE IRRELEVANT; AND,
FINDING THAT THE RESPONDENTS HAD VIOLATED THE SHERMAN ACT TO THE INJURY
OF THE PETITIONER, ISSUED THE INJUNCTION SOUGHT.  34 F.SUPP.  970.  THE
CIRCUIT COURT OF APPEALS REVERSED, HOLDING THAT A "LABOR DISPUTE" WAS
INVOLVED AND THAT THE DISTRICT COURT WAS THEREFORE WITHOUT JURISDICTION
TO ENJOIN.  117 F.2D 310.  TO REVIEW THIS QUESTION, WE GRANTED
CERTIORARI.  314 U.S. 600. 

THE PETITIONER HAS PLANTS FOR PROCESSING AND CANNING FISH IN OREGON,
WASHINGTON, AND ALASKA.  IT DISTRIBUTES ITS PRODUCTS IN INTERSTATE AND
FOREIGN COMMERCE.  ITS SUPPLY OF FISH CHIEFLY DEPENDS UPON ITS ABILITY
TO PURCHASE FROM INDEPENDENT FISHERMEN.  THE DISPUTE HERE AROSE FROM A
CONTROVERSY ABOUT THE TERMS AND CONDITIONS UNDER WHICH THE RESPONDENTS
WOULD SELL FISH TO THE PETITIONER. 

THE RESPONDENTS ARE THE PACIFIC COAST FISHERMEN'S UNION, ITS OFFICERS
AND MEMBERS,  FN2  AND TWO INDIVIDUALS WHO, LIKE THE PETITIONER,
PROCESS AND SELL FISH.  ALTHOUGH AFFILIATED WITH THE C.I.O., THE UNION
IS PRIMARILY A FISHERMEN'S ASSOCIATION, COMPOSED OF FISHERMEN WHO
CONDUCT THEIR OPERATIONS IN THE PACIFIC OCEAN AND NAVIGABLE STREAMS IN
WASHINGTON AND OREGON AND SOME OF THEIR EMPLOYEES.  THE FISHERMEN OWN
OR LEASE FISHING BOATS, RANGING IN VALUE FROM $100 TO $15,000, AND
CARRY ON THEIR BUSINESS AS INDEPENDENT ENTREPRENEURS, UNCONTROLLED BY
THE PETITIONER OR OTHER PROCESSORS. 

THE UNION ACTS AS A COLLECTIVE BARGAINING AGENCY IN THE SALE OF FISH
CAUGHT BY ITS MEMBERS.  ITS CONSTITUTION AND BY-LAWS PROVIDE THAT
"UNION MEMBERS SHALL NOT DELIVER CATCHES OUTSIDE OF UNION AGREEMENTS,"
AND IN ITS CONTRACTS OF SALE IT REQUIRES AN AGREEMENT BY THE BUYER NOT
TO PURCHASE FISH FROM NONMEMBERS OF THE UNION.  THE UNION'S DEMAND THAT
THE PETITIONER ASSENT TO SUCH AN AGREEMENT PRECIPITATED THE PRESENT
CONTROVERSY.  UPON THE PETITIONER'S REFUSAL, THE UNION INDUCED ITS
MEMBERS TO REFRAIN FROM SELLING FISH TO THE PETITIONER, AND SINCE THE
UNION'S CONTROL OF THE FISH SUPPLY IS EXTENSIVE, THE PETITIONER WAS
UNABLE TO OBTAIN THE FISH IT NEEDED TO CARRY ON ITS BUSINESS. 

WE THINK THAT THE COURT BELOW WAS IN ERROR IN HOLDING THIS
CONTROVERSY A "LABOR DISPUTE" WITHIN THE MEANING OF THE NORRIS
LAGUARDIA ACT.  THAT A DISPUTE AMONG BUSINESSMEN OVER THE TERMS OF A
CONTRACT FOR THE SALE OF FISH IS SOMETHING DIFFERENT FROM A
"CONTROVERSY CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT, OR
CONCERNING THE ASSOCIATION  ...  OF PERSONS  ...  SEEKING TO ARRANGE
TERMS OR CONDITIONS OF EMPLOYMENT" CALLS FOR NO EXTENDED DISCUSSION. 
THIS DEFINITION AND THE STATED PUBLIC POLICY OF THE ACT - AID TO "THE
INDIVIDUAL UNORGANIZED WORKER  ...  COMMONLY HELPLESS  ...  TO OBTAIN
ACCEPTABLE TERMS AND CONDITIONS OF EMPLOYMENT" AND PROTECTION OF THE
WORKER "FROM THE INTERFERENCE, RESTRAINT, OR COERCION OF EMPLOYERS OF
LABOR"  - MAKE IT CLEAR THAT THE ATTENTION OF CONGRESS WAS FOCUSSED
UPON DISPUTES AFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP, AND THAT
THE ACT WAS NOT INTENDED TO HAVE APPLICATION TO DISPUTES OVER THE SALE
OF COMMODITIES.  FN3 

WE RECOGNIZE THAT BY THE TERMS OF THE STATUTE THERE MAY BE A "LABOR
DISPUTE" WHERE THE DISPUTANTS DO NOT STAND IN THE PROXIMATE RELATION OF
EMPLOYER AND EMPLOYEE.  BUT THE STATUTORY CLASSIFICATION,  FN4  HOWEVER
BROAD, OF PARTIES AND CIRCUMSTANCES TO WHICH A "LABOR DISPUTE" MAY
RELATE DOES NOT EXPAND THE APPLICATION OF THE ACT TO INCLUDE
CONTROVERSIES UPON WHICH THE EMPLOYER-EMPLOYEE RELATIONSHIP HAS NO
BEARING.  OUR DECISIONS IN NEW NEGRO ALLIANCE V. GROCERY CO., 303 U.S.
552, AND MILK WAGON DRIVERS' UNION V. LAKE VALLEY CO., 311 U.S. 91,
GIVE NO SUPPORT TO THE RESPONDENTS' CONTRARY CONTENTION, FOR IN BOTH
CASES THE EMPLOYER-EMPLOYEE RELATIONSHIP WAS THE MATRIX OF THE
CONTROVERSY. 

THE CONTROVERSY HERE IS ALTOGETHER BETWEEN FISH SELLERS AND FISH
BUYERS.  THE SELLERS ARE NOT EMPLOYEES OF THE PETITIONERS OR OF ANY
OTHER EMPLOYER, NOR DO THEY SEEK TO BE.  ON THE CONTRARY, THEIR DESIRE
IS TO CONTINUE TO OPERATE AS INDEPENDENT BUSINESSMEN, FREE FROM SUCH
CONTROLS AS AN EMPLOYER MIGHT EXERCISE.  THAT SOME OF THE FISHERMEN
HAVE A SMALL NUMBER OF EMPLOYEES OF THEIR OWN, WHO ARE ALSO MEMBERS OF
THE UNION, DOES NOT ALTER THE SITUATION.  FOR, THE DISPUTE HERE,
RELATING SOLELY TO THE SALE OF FISH, DOES NOT PLACE IN CONTROVERSY THE
WAGES OR HOURS, OR OTHER TERMS AND CONDITIONS OF EMPLOYMENT, OF THESE
EMPLOYEES. 

WE ARE ASKED TO CONSIDER OTHER CONTENTIONS PRESSED BY THE
RESPONDENTS, WHICH IT IS SAID WOULD SUPPORT THE REVERSAL BELOW.  BUT
THE CIRCUIT COURT NEITHER CANVASSED NOR PASSED UPON THESE CONTENTIONS. 
IT WILL BE FREE TO DO SO UPON REMAND.  REVERSED. 

FN1  "  ...  NO COURT OF THE UNITED STATES  ...  SHALL HAVE
JURISDICTION TO ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT
INJUNCTION IN A CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE,
EXCEPT IN A STRICT CONFORMITY WITH THE PROVISIONS OF THIS ACT.  ...  "
47 STAT. 70. 

FN2  TWO OF THE RESPONDENTS, ALTHOUGH MEMBERS OF THE UNION, ARE NOT
FISHERMEN.  THEY ARE BUYERS FOR PROCESSORS. 

FN3  CF. SEC. 6 OF THE CLAYTON ACT:  "  ...  THE LABOR OF A HUMAN
BEING IS NOT A COMMODITY OR ARTICLE OF COMMERCE."  38 STAT. 731.  THE
NORRIS-LAGUARDIA ACT, MANIFESTING "THE PURPOSE OF THE CONGRESS FURTHER
TO EXTEND THE PROHIBITION OF (SEC. 20 OF) THE CLAYTON ACT," NEW NEGRO
ALLIANCE V. GROCERY CO., 303 U.S. 552, 562, CANNOT BE TAKEN AS HAVING
ERASED THE DISTINCTIONS BETWEEN AN ASSOCIATION OF COMMODITY SELLERS AND
AN ASSOCIATION OF EMPLOYEES.  SPECIFIC RECOGNITION BY CONGRESS OF
ASSOCIATIONS OF FISHERMEN AS SELLERS OF COMMODITIES HAS BEEN GIVEN IN
AN ACT "AUTHORIZING ASSOCIATIONS OF PRODUCERS OF AQUATIC PRODUCTS."  48
STAT. 1213. 

FN4  SECTION 13 OF THE ACT PROVIDES: 

"WHEN USED IN THIS ACT, AND FOR THE PURPOSES OF THIS ACT - 

"(A)  A CASE SHALL BE HELD TO INVOLVE OR TO GROW OUT OF A LABOR
DISPUTE WHEN THE CASE INVOLVES PERSONS WHO ARE ENGAGED IN THE SAME
INDUSTRY, TRADE, CRAFT, OR OCCUPATION; OR HAVE DIRECT OR INDIRECT
INTERESTS THEREIN; OR WHO ARE EMPLOYEES OF THE SAME EMPLOYER; OR WHO
ARE MEMBERS OF THE SAME OR AN AFFILIATED ORGANIZATION OF EMPLOYERS OR
EMPLOYEES; WHETHER SUCH DISPUTE IS (1) BETWEEN ONE OR MORE EMPLOYERS OR
ASSOCIATIONS OF EMPLOYERS AND ONE OR MORE EMPLOYEES OR ASSOCIATIONS OF
EMPLOYEES; (2) BETWEEN ONE OR MORE EMPLOYERS OR ASSOCIATIONS OF
EMPLOYERS AND ONE OR MORE EMPLOYERS OR ASSOCIATIONS OF EMPLOYERS; OR
(3) BETWEEN ONE OR MORE EMPLOYEES OR ASSOCIATIONS OF EMPLOYEES AND ONE
OR MORE EMPLOYEES OR ASSOCIATIONS OF EMPLOYEES; OR WHEN THE CASE
INVOLVES ANY CONFLICTING OR COMPETING INTERESTS IN A 'LABOR DISPUTE'
(AS HEREINAFTER DEFINED) OF 'PERSONS PARTICIPATING OR INTERESTED'
THEREIN (AS HEREINAFTER DEFINED). 

"(B)  A PERSON OR ASSOCIATION SHALL BE HELD TO BE A PERSON
PARTICIPATING OR INTERESTED IN A LABOR DISPUTE IF RELIEF IS SOUGHT
AGAINST HIM OR IT, AND IF HE OR IT IS ENGAGED IN THE SAME INDUSTRY,
TRADE, CRAFT, OR OCCUPATION IN WHICH SUCH DISPUTE OCCURS, OR HAS A
DIRECT OR INDIRECT INTEREST THEREIN, OR IS A MEMBER, OFFICER, OR AGENT
OF ANY ASSOCIATION COMPOSED IN WHOLE OR IN PART OF EMPLOYERS OR
EMPLOYEES ENGAGED IN SUCH INDUSTRY, TRADE, CRAFT, OR OCCUPATION. 

"(C)  THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING
TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR
REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING, MAINTAINING,
CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF EMPLOYMENT,
REGARDLESS OF WHETHER OR NOT THE DISPUTANTS STAND IN THE PROXIMATE
RELATION OF EMPLOYER AND EMPLOYEE."  47 STAT. 73. 

MR. JUSTICE ROBERTS AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :












CLOVERLEAF CO. V. PATTERSON, 315 U.S. 148 


NO. 28.  ARGUED DECEMBER 9, 10, 1941.  - DECIDED FEBRUARY 2, 1942.  -
116 F.2D 227, REVERSED. 


1.  ACTING UNDER AUTHORITY OF A STATE STATUTE, STATE OFFICIALS
INSPECTED AND SEIZED PACKING STOCK BUTTER ACQUIRED BY A MANUFACTURER
FOR USE IN THE MANUFACTURE OF RENOVATED BUTTER FOR INTERSTATE
COMMERCE.  HELD THAT SUCH STATE ACTION WAS INCONSISTENT WITH AND
EXCLUDED BY THE FEDERAL LAWS AND REGULATIONS RELATING TO THE
MANUFACTURE OF RENOVATED BUTTER.  INTERNAL REVENUE CODE, SECS. 2320
2327.  P. 167. 

2.  BY THE REGULATORY PROVISIONS OF INTERNAL REVENUE CODE, SEC. 2325,
THE ENTIRE PROCESS OF MANUFACTURE OF RENOVATED BUTTER IS SUBJECT TO
FEDERAL SUPERVISION.  P. 154. 

3.  THE FEDERAL LEGISLATION INVOLVED HERE IS NOT SOLELY A REVENUE
MEASURE; IT IS AUTHORIZED BY THE COMMERCE CLAUSE.  P. 162. 

4.  SECTION 1 OF THE ACT OF MAY 9, 1902, PROVIDING THAT IMPORTATIONS
OF RENOVATED BUTTER SHALL BE SUBJECT TO THE LAWS OF THE STATE AS THOUGH
PRODUCED THEREIN, IS INAPPLICABLE TO THE PRESENT CASE.  P. 161. 

5.  THE EFFECT OF SEC. 4 OF THE ACT OF MAY 9, 1902, IS THAT STATE
ACTION IN RESPECT OF RENOVATED BUTTER IS NOT FORECLOSED MERELY BY
FEDERAL TAXATION IN THIS FIELD.  SUCH STATE ACTION MAY, HOWEVER, AS
HERE, BE SUPERSEDED BY THE EXERCISE OF OTHER FEDERAL POWER.  P. 162. 

6.  WHERE CONGRESS EXERCISES ITS POWER OVER INTERSTATE COMMERCE BY
LEGISLATION WITH WHICH A REGULATION BY THE STATE CONFLICTS, EITHER
EXPRESSLY OR IMPLIEDLY, SUCH STATE REGULATION BECOMES INOPERATIVE AND
THE FEDERAL LEGISLATION EXCLUSIVE IN ITS APPLICATION.  PP. 155-156. 

CLOVERLEAF BUTTER CO. V. PATTERSON, COMMISSIONER OF AGRICULTURE AND
INDUSTRIES OF ALABAMA, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 313 U.S. 551, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING THE BILL IN A SUIT FOR AN INJUNCTION. 

THE PROTECTION OF THE HEALTH OF ITS CITIZENS IS AN INHERENT POWER OF
THE STATE.  SO LONG AS THE EXERCISE OF THIS POWER DOES NOT CONFLICT
WITH THE FEDERAL LAWS, THE STATE MAY ACT WITHOUT LIMITATION.  MINNESOTA
RATE CASES, 230 U.S. 352, 398-412; SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177, 184 188-191; EICHHOLZ V. PUBLIC SERVICE
COMM'N, 306 U.S. 268, 274. 

THE STATE MAY PROHIBIT WITHIN ITS BORDERS THE MANUFACTURE OF
ADULTERATED FOOD, WHERE PART OF THAT FOOD WILL BE SOLD TO ITS
CITIZENS.  SUCH ACTION DOES NOT VIOLATE THE COMMERCE CLAUSE EVEN THOUGH
ITS EFFECT IS TO IMPOSE A BURDEN ON INTERSTATE COMMERCE.  CLASON V.
INDIANA, 306 U.S. 439; HYGRADE PROVISION CO. V. SHERMAN, 266 U.S. 407,
505; CAREY V. SOUTH DAKOTA, 250 U.S. 118; CORN PRODUCTS, RFG.  CO. V.
EDDY, 249 U.S. 427; WEIGLE V. CURTICE BROS. CO., 238 U.S. 285; SLIGH V.
KIRKWOOD, 237 U.S. 52; SAVAGE V. JONES, 225 U.S. 501; CROSSMAN V.
LURMAN, 192 U.S. 189; PLUMLEY V. MASSACHUSETTS, 155 U.S. 461; POWELL V.
PENNSYLVANIA, 127 U.S. 678.  SEE ALSO:  SKIRIOTES V. FLORIDA, 313 U.S.
69; CALIFORNIA V. THOMPSON, 313 U.S. 109. 

CONGRESS HAS NOT EXCLUSIVELY OCCUPIED THE FIELD BY THE RENOVATED
BUTTER ACT; NOR HAS IT, BY SUCH ACT, REGULATED INTERSTATE COMMERCE SO
COMPLETELY AS TO PROHIBIT STATE ACTION.  THE ACT IS NOT INTENDED AS A
REGULATION OF COMMERCE.  IT IS BUT AN EXTENSION OF THE OLEOMARGARINE
ACT, WHICH WAS A TAXING ACT.  IN RE KOLLOCK, 165 U.S. 526, 537. 

THE INCORPORATION OF R.S. SEC. 3243 INTO THE RENOVATED BUTTER ACT IS
A SPECIFIC INDICATION OF THE CONGRESSIONAL INTENTION TO LEAVE THE STATE
UNRESTRICTED IN THE EXERCISE OF ITS POLICE POWER.  SECTION 1 OF THE ACT
FURTHER INDICATES THE WILL OF CONGRESS THAT, WITH RESPECT TO THE
REGULATION OF RENOVATED BUTTER, INTERSTATE COMMERCE MIGHT BE SUBJECTED
TO RESTRICTIONS BY THE STATES. 

THE PURPOSE OF SEC. 1 WAS TO PERMIT THE STATE TO PROTECT THE HEALTH
OF ITS CITIZENS WITH RESPECT TO UNCLEAN BUTTER, EVEN THOUGH SUCH
BUTTER, RENOVATED OR PACKING STOCK, MIGHT STILL REMAIN IN THE ORIGINAL
PACKAGES IN WHICH IT HAD BEEN INTRODUCED INTO THE STATE.  SEE IN RE
RAHRER, 140 U.S. 545; CLARK DISTILLING CO. V. WESTERN MARYLAND RY., 242
U.S. 311. 

STATE OFFICERS ENFORCING BY SEIZURE POLICE REGULATIONS WITH REGARD TO
FOODS WILL NOT BE ENJOINED MERELY BECAUSE THERE EXIST SIMILAR FEDERAL
LAWS AND REGULATIONS IN RESPECT TO THE SAME SUBJECT MATTER AND THERE
HAS BEEN NO FEDERAL SEIZURE. 

THE DECISION IS CONTROLLED BY MINTZ V. BALDWIN, 289 U.S. 346; PACIFIC
STATES CO. V. WHITE, 296 U.S. 176; KELLY V. WASHINGTON, 302 U.S. 1;
SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177; TOWNSEND
V. YEOMANS, 301 U.S. 441; AND CURRIN V. WALLACE, 306 U.S. 1. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, CLOVERLEAF BUTTER COMPANY, IS ENGAGED AT BIRMINGHAM,
ALABAMA, IN THE MANUFACTURE OF PROCESS OR RENOVATED BUTTER FROM PACKING
STOCK BUTTER.  IT OBTAINS 25% OF ITS SUPPLIES OF PACKING STOCK BUTTER
FROM THE FARMERS AND COUNTRY MERCHANTS OF ALABAMA AND 75% FROM THOSE OF
OTHER STATES, AND IT SHIPS INTERSTATE 90% OF ITS FINISHED PRODUCT.  THE
PRODUCTION OF RENOVATED BUTTER IS TAXED AND REGULATED BY THE UNITED
STATES.  INTERNAL REVENUE CODE, C. 16, SECS. 2320 TO 2327 INC.  IT IS
ALSO REGULATED BY ALABAMA.  ALA. CODE 1940, TIT. 2, C. 1. 

THE RESPONDENTS, ALABAMA OFFICIALS CHARGED WITH THE DUTY OF ENFORCING
THE ALABAMA LAWS IN REGARD TO RENOVATED BUTTER, ENTERED PETITIONER'S
FACTORY AND, IN A LITTLE MORE THAN A YEAR, SEIZED ON SIXTEEN SEPARATE
OCCASIONS A TOTAL OF OVER TWENTY THOUSAND POUNDS OF PACKING STOCK
BUTTER, THE MATERIAL FROM WHICH THE FINISHED PRODUCT IS MADE. 
DEFENDANTS ALSO SEIZED SOME BUTTER MOVING TO THE FACTORY IN INTERSTATE
COMMERCE.  THERE IS NO ALLEGATION THAT CONDEMNATION PROCEEDINGS HAVE
BEEN COMPLETED. 

ALLEGING REPEATED SEIZURES AND DANGER OF THEIR CONTINUANCE, TO THE
DEMORALIZATION AND FINANCIAL IMPAIRMENT OF ITS BUSINESS, PETITIONER
BROUGHT AN ACTION, JUDICIAL CODE SEC. 24(1), IN THE DISTRICT COURT TO
ENJOIN THE DEFENDANTS FROM ACTING UNDER THE ALABAMA STATUTE, EITHER TO
DETERMINE THE WHOLESOMENESS OF RENOVATED BUTTER MADE FROM THE RAW
MATERIAL IN PETITIONER'S HANDS, TO INSPECT ITS RAW MATERIAL AND PLANT,
OR TO SEIZE AND TO DETAIN PETITIONER'S PACKING STOCK BUTTER.  THE
THEORY OF THE BILL IS THAT THE FEDERAL LEGISLATION AND REGULATIONS
CONCERNING THE MANUFACTURE OF PROCESS OR RENOVATED BUTTER EXCLUDE SUCH
STATE ACTION.  CF. HEBE CO. V. SHAW, 248 U.S. 297; CORN PRODUCTS RFG. 
CO. V. EDDY, 249 U.S. 427.  THERE WAS A MOTION TO DISMISS ON THE GROUND
THAT THE COMPLAINT DID NOT STATE A CAUSE OF ACTION.  A STIPULATION
ENTITLED AS ONE OF "FACTS" WAS ENTERED INTO.  THE DISTRICT COURT
DISMISSED THE BILL, THE CIRCUIT COURT OF APPEALS AFFIRMED, 116 F.2D
227, AND WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANT QUESTION OF
FEDERAL LAW INVOLVED IN PETITIONER'S CONTENTION THAT THESE FEDERAL
STATUTES PROVIDING FOR REGULATION OF PRODUCTION OF A COMMODITY EXCLUDED
STATE ACTION.  313 U.S. 551. 

THE SO-CALLED STIPULATION OF FACTS JUST MENTIONED IS REALLY A
LIMITATION OF ISSUES.  ONE PARAGRAPH OF THE STIPULATION WILL
CRYSTALLIZE THE ESSENTIAL ELEMENTS OF THE DISPUTE.  IT READS: "THE
PARTIES TO THIS CAUSE STIPULATE AND AGREE THAT THE LEGAL QUESTIONS IN
DISPUTE BETWEEN THE PARTIES ARE:  ... 2.  DOES THE INSPECTION OF
PACKING STOCK BUTTER, IN INTERSTATE COMMERCE, USED BY THE PLAINTIFF IN
THE MANUFACTURE OF PROCESS OR RENOVATED BUTTER AS ALLEGED IN THE BILL
OF COMPLAINT, MADE OR DIRECTED TO BE MADE BY THE SECRETARY OF
AGRICULTURE OF THE UNITED STATES, PURSUANT TO THE FEDERAL LAWS AND
REGULATIONS RELATING TO RENOVATED OR PROCESS BUTTER, HAVE THE EFFECT IN
CONNECTION WITH SAID FEDERAL LAWS OF EXCLUDING THE STATE OF ALABAMA,
ITS OFFICERS AND AGENTS, FROM INSPECTING OR SEIZING OR SUSPENDING THE
PACKING STOCK BUTTER, IN INTERSTATE COMMERCE OUT OF WHICH RENOVATED
BUTTER TO BE SOLD IN INTERSTATE COMMERCE AS ALLEGED IN THE COMPLAINT IS
MANUFACTURED BY THE PLAINTIFF AS ALLEGED IN THE COMPLAINT?"  AS OTHER
PARAGRAPHS STATE VARIATIONS OF THIS CONTROVERSY, OR CONCLUSIONS OF LAW
NOT CONTROLLING ON THE COURTS, ESTATE OF SANFORD V. COMMISSIONER, 308
U.S. 39, 51, WE NEED NOT CONSIDER THEM FURTHER.  THE CENTRAL QUESTION
PRESENTED IN THE PETITION FOR CERTIORARI ACCORDS WITH THE EXCERPT FROM
THE STIPULATION. 

APPARENTLY THERE IS NO SPECIFIC ALLEGATION OR ADMISSION THAT THE
PACKING STOCK BUTTER WHICH ALABAMA INSPECTED AND SEIZED WAS THE
PROPERTY OF THE PETITIONING MANUFACTURER AT THE TIME.  IT HAS, HOWEVER,
BEEN SO TREATED BY THE COURTS AND PARTIES, AND PROPERLY SO, WE
CONCLUDE, FROM THE ALLEGATIONS OF THE BILL.  FN1  THE REACH OF THIS
DECISION IS THEREFORE LIMITED TO ALABAMA'S INSPECTION AND SEIZURE OF
PACKING STOCK BUTTER, ACTUALLY OWNED BY PETITIONER AND HELD IN ITS OWN
HANDS OR THOSE OF ITS BAILEES, WHETHER IN FACTORY.  WAREHOUSE, OR
COURSE OF CARRIAGE, FOR MANUFACTURE INTO PROCESS OR RENOVATED BUTTER
FOR INTERSTATE OR FOREIGN COMMERCE. 

THE TEST TO BE APPLIED TO THE ACTION OF THE STATE IN SEIZING MATERIAL
INTENDED SOLELY FOR INCORPORATION INTO A PRODUCT PREPARED FOR
INTERSTATE COMMERCE IS THE EFFECT OF THAT ACTION UPON THE NATIONAL
REGULATORY POLICY DECLARED BY THE FEDERAL STATUTE.  CF. ILLINOIS
NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC SERVICE CO., 314 U.S. 498,
505.  NOT ONLY DOES CONGRESSIONAL POWER OVER INTERSTATE COMMERCE
EXTEND, THE "LAWS OF ANY STATE TO THE CONTRARY NOTWITHSTANDING,"  FN2
TO INTERSTATE TRANSACTIONS AND TRANSPORTATION, BUT IT REACHES BACK TO
THE STEPS PRIOR TO TRANSPORTATION AND HAS FORCE TO REGULATE PRODUCTION
"WITH THE PURPOSE OF SO TRANSPORTING" THE PRODUCT.  UNITED STATES V.
DARBY, 312 U.S. 100, 117.  IT EXTENDS TO THE INTRASTATE ACTIVITIES
WHICH SO AFFECT COMMERCE AS TO MAKE REGULATION OF THEM APPROPRIATE
MEANS TO THE ATTAINMENT OF A LEGITIMATE END, REGULATION OF INTERSTATE
COMMERCE.  ID., 118 ET SEQ., AND CASES CITED.  BY THE REGULATORY
PROVISIONS OF I.R.C. SEC. 2325, NOTE 10, INFRA, THE ENTIRE PROCESS OF
MANUFACTURE IS SUBJECT TO FEDERAL SUPERVISION.  THUS, SO FAR AS ANY
SITUATION HERE INVOLVED IS CONCERNED, THE SCOPE OF CONGRESSIONAL POWER
IS SUCH THAT IT MAY OVERRIDE THE EXERCISE OF STATE POWER AND RENDER
IMPOSSIBLE ITS APPLICATION TO PETITIONER'S MANUFACTURING PROCESSES. 

THIS POWER OF CONGRESS TO EXERCISE EXCLUSIVE CONTROL OVER OPERATIONS
IN INTERSTATE COMMERCE IS NOT IN DISPUTE HERE.  FN3  NOR IS THIS POWER
LIMITED TO SITUATIONS WHERE NATIONAL UNIFORMITY IS SO ESSENTIAL THAT,
LACKING CONGRESSIONAL PERMISSION, ALL STATE ACTION IS INADMISSIBLE
NOTWITHSTANDING A COMPLETE ABSENCE OF FEDERAL LEGISLATION.  FN4
EXCLUSIVE FEDERAL REGULATION MAY ARISE, ALSO, FROM THE EXERCISE OF THE
POWER OF CONGRESS OVER INTERSTATE COMMERCE WHERE, IN THE ABSENCE OF
CONGRESSIONAL ACTION, THE STATES MAY THEMSELVES LEGISLATE.  IT HAS LONG
BEEN RECOGNIZED THAT, IN THOSE FIELDS OF COMMERCE WHERE NATIONAL
UNIFORMITY IS NOT ESSENTIAL, EITHER THE STATE OR FEDERAL GOVERNMENT MAY
ACT.  WILLSON V. BLACK-BIRD CREEK MARSH CO., 2 PET. 245; CALIFORNIA V.
THOMPSON, 313 U.S. 109, 114.  WHERE THIS POWER TO LEGISLATE EXISTS, IT
OFTEN HAPPENS THAT THERE IS ONLY A PARTIAL EXERCISE OF THAT POWER BY
THE FEDERAL GOVERNMENT.  IN SUCH CASES THE STATE MAY LEGISLATE FREELY
UPON THOSE PHASES OF THE COMMERCE WHICH ARE LEFT UNREGULATED BY THE
NATION.  FN5  BUT WHERE THE UNITED STATES EXERCISES ITS POWER OF
LEGISLATION SO AS TO CONFLICT WITH A REGULATION OF THE STATE, EITHER
SPECIFICALLY  FN6 OR BY IMPLICATION,  FN7  THE STATE LEGISLATION
BECOMES INOPERATIVE AND THE FEDERAL LEGISLATION EXCLUSIVE IN ITS
APPLICATION. 

WHEN THE PROHIBITION OF STATE ACTION IS NOT SPECIFIC BUT INFERABLE
FROM THE SCOPE AND PURPOSE OF THE FEDERAL LEGISLATION, IT MUST BE CLEAR
THAT THE FEDERAL PROVISIONS ARE INCONSISTENT WITH THOSE OF THE STATE TO
JUSTIFY THE THWARTING OF STATE REGULATION.  FN8 

APPARENTLY THERE ARE NO CASES OF THIS COURT DEALING SPECIFICALLY WITH
STATE INTERFERENCE WITH FEDERALLY REGULATED MANUFACTURING.  IT IS
EVIDENT, WE THINK, THAT THE SAME PRINCIPLES GOVERN STATE ACTION IN THIS
FIELD AS IN THE INSTANCES CITED UNDER NOTE 7 TO SHOW THE EXCLUSIVE
POWER OF FEDERAL ENACTMENTS IN TRANSPORTATION, EMPLOYERS LIABILITY,
QUARANTINE AND ALIENS.  THE RULE IS CLEAR THAT STATE ACTION MAY BE
EXCLUDED BY CLEAR IMPLICATION OR INCONSISTENCY.  ITS APPLICATION TO
INDIVIDUAL CASES CREATES DIFFICULTIES.  THE DIFFERENTIATION BETWEEN
CASES WHERE THE ASSUMPTION OF FEDERAL POWER IS EXCLUSIVE AND WHERE IT
ADMITS STATE ACTION IS NARROW.  FOR EXAMPLE, IN OREGON-WASHINGTON R.
CO. V. WASHINGTON, 270 U.S. 87, SECTION 8 OF THE PLANT QUARANTINE ACT,
37 STAT. 315, AS AMENDED 39 STAT. 1165, 7 U.S.C. SEC. 161, WAS HELD TO
EXCLUDE A STATE QUARANTINE AGAINST PLANT INFESTATION.  YET, A LITTLE
LATER, IN MINTZ V. BALDWIN, 289 U.S. 346, A VERY SIMILAR STATUTE, THE
CATTLE CONTAGIOUS DISEASES ACT, WAS HELD TO PERMIT A STATE QUARANTINE,
BECAUSE THIS LATTER ACT DIFFERED FROM THE FORMER, IN THAT ITS
PROVISIONS, PAGE 352, "BY SPECIFICATION OF THE CASES IN WHICH ACTION
UNDER IT SHALL BE EXCLUSIVE, DISCLOSE THE INTENTION OF CONGRESS THAT,
SUBJECT TO THE LIMITATIONS DEFINED, STATE MEASURES MAY BE ENFORCED. 
THIS DIFFERENCE IS ESSENTIAL AND CONTROLLING."  CF. 21 U.S.C. SEC.
126. 

IT IS URGED THAT THE LATER WELCH, EICHHOLZ AND MAURER CASES, CITED
ABOVE, WHICH ALLOW STATE ACTION WHEN THE FEDERAL STATUTE DOES NOT COVER
THE PARTICULAR POINT REGULATED, SHOW A TREND AWAY FROM THE DOCTRINE OF
THE OREGON-WASHINGTON CO. DECISION.  OTHER SIMILAR INSTANCES MAY BE
FOUND IN NOTES 3 AND 5, SUPRA.  IN ALL OF THESE, HOWEVER, IT WAS THE
RULING OF THIS COURT THAT THE FEDERAL ENACTMENT WAS CONSISTENT WITH THE
NARROW REGULATION SOUGHT TO BE ENFORCED BY THE STATE, SO THAT THE STATE
ENACTMENT DID NOT STAND "AS AN OBSTACLE TO THE ACCOMPLISHMENT AND
EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF CONGRESS."  HINES V.
DAVIDOWITZ, 312 U.S. 52, 67.  AS THE PRINCIPLE UPON WHICH THE CASES
REFERRED TO IN THIS PARAGRAPH ARE DECIDED IS CLEAR, A SINGLE COMPARISON
WILL SUFFICIENTLY ILLUSTRATE THE REASONS WHICH LEAD TO A DENIAL OF
STATE POWER.  SAVAGE V. JONES, 225 U.S. 501, CONSTRUED AN INDIANA
STATUTE REQUIRING DISCLOSURE OF FORMULAS ON FOODS OFFERED FOR SALE IN
INDIANA WHILE IN INTERSTATE COMMERCE.  THE PURE FOOD AND DRUGS ACT, 34
STAT. 768, PROHIBITED, SO FAR AS HERE PERTINENT, INTERSTATE SHIPMENTS
IF MISBRANDED BY BEARING "ANY STATEMENT, DESIGN, OR DEVICE  ...  FALSE
OR MISLEADING."  THIS COURT SAID, P. 532: 

"CONGRESS HAS THUS LIMITED THE SCOPE OF ITS PROHIBITIONS.  IT HAS NOT
INCLUDED THAT AT WHICH THE INDIANA STATUTE AIMS.  CAN IT BE SAID THAT
CONGRESS, NEVERTHELESS, HAS DENIED TO THE STATE, WITH RESPECT TO THE
FEEDING STUFFS COMING FROM ANOTHER STATE AND SOLD IN THE ORIGINAL
PACKAGES, THE POWER THE STATE OTHERWISE WOULD HAVE TO PREVENT
IMPOSITION UPON THE PUBLIC BY MAKING A REASONABLE AND NONDISCRIMINATORY
PROVISION FOR THE DISCLOSURE OF INGREDIENTS, AND FOR INSPECTION AND
ANALYSIS?"    THE INDIANA ACT WAS UPHELD.  ON THE OTHER HAND, MCDERMOTT
V. WISCONSIN, 228 U.S. 115, MAKES PLAIN THE BASIS FOR PROHIBITING
INTERFERENCES WITH FEDERAL POWER.  IN THIS LATTER CASE A WISCONSIN LAW
REQUIRED GLUCOSE MIXTURES OFFERED FOR RETAIL SALE TO BE LABELED
"GLUCOSE FLAVORED WITH" THE FLAVORING MATERIAL.  ANY OTHER "DESIGNATION
OR BRAND" ON THE PACKAGE WAS PROHIBITED.  A GLUCOSE MIXTURE WAS OFFERED
LABELED "KARO CORN SYRUP" "10% CANE SYRUP, 90% CORN SYRUP."  POINTING
OUT THAT FEDERAL AUTHORITY, FOR THE SAKE OF EFFICIENCY IN PROTECTING
THE PUBLIC AGAINST MISBRANDING IN INTERSTATE TRADE, EXTENDED FAR ENOUGH
TO REGULATE LABELING ON PACKAGES WHILE BEING OFFERED TO CONSUMERS, AND
THAT THE PURE FOOD AND DRUGS ACT TOLERATED THE MORE EUPHEMISTIC LABEL
PROHIBITED BY THE STATE, THIS COURT SAID, P. 133: 

"CONCEDING TO THE STATE THE AUTHORITY TO MAKE REGULATIONS CONSISTENT
WITH THE FEDERAL LAW FOR THE FURTHER PROTECTION OF ITS CITIZENS AGAINST
IMPURE AND MISBRANDED FOOD AND DRUGS, WE THINK TO PERMIT SUCH
REGULATION AS IS EMBODIED IN THIS STATUTE IS TO PERMIT A STATE TO
DISCREDIT AND BURDEN LEGITIMATE FEDERAL REGULATIONS OF INTERSTATE
COMMERCE, TO DESTROY RIGHTS ARISING OUT OF THE FEDERAL STATUTE WHICH
HAVE ACCRUED BOTH TO THE GOVERNMENT AND THE SHIPPER, AND TO IMPAIR THE
EFFECT OF A FEDERAL LAW WHICH HAS BEEN ENACTED UNDER THE CONSTITUTIONAL
POWER OF CONGRESS OVER THE SUBJECT." 

IN THE SAVAGE CASE, THERE WAS NO CONFLICT, INCONSISTENCY OR
INTERFERENCE; IN THE MCDERMOTT CASE, THERE WAS.  MCDERMOTT POINTED OUT
THE DISTINCTION, AND THE INAPPLICABILITY OF THE SAVAGE RULE TO THE
WISCONSIN SITUATION.  228 U.S. 115, 131-32. 

TURNING TO THE STATUTES IN QUESTION, WE FIND THAT THE GREATER PART OF
THE LEGISLATION RELATING TO PROCESS OR RENOVATED BUTTER IS IN SEC. 2320
TO SEC. 2327 OF THE INTERNAL REVENUE CODE.  FN9 THESE SECTIONS DEFINE
PROCESS OR RENOVATED BUTTER, FIX THE RATE OF POUNDAGE TAX UPON IT, AS
WELL AS THE AMOUNT OF SPECIAL TAX UPON ITS MANUFACTURERS, AND PROVIDE
FOR THEIR COLLECTION.  THEY REQUIRE MANUFACTURERS TO FILE SUCH NOTICES
AND INVENTORIES, KEEP SUCH BOOKS, RENDER SUCH RETURNS, POST SUCH SIGNS,
AFFIX SUCH NUMBER TO HIS FACTORY, AND FURNISH SUCH BOND AS THE TREASURY
DEPARTMENT MAY REQUIRE.  WHOLESALE DEALERS ARE REQUIRED TO KEEP BOOKS
AND RENDER RETURNS TO THE SAME DEPARTMENT.  PENALTIES ARE PROVIDED. 
SPECIFIC PROVISIONS ARE MADE FOR INSPECTION OF THE PLACES OF
MANUFACTURE OR STORAGE OF THE MATERIALS AND THE RENOVATED BUTTER
ITSELF.  POWER IS GIVEN TO CONFISCATE THE FINISHED PRODUCT.  SANITARY
PROVISIONS APPLICABLE FOR SLAUGHTERING, MEAT CANNING OR SIMILAR
ESTABLISHMENTS ARE EXTENDED TO COVER PROCESS AND RENOVATED BUTTER
FACTORIES.  THE SECTIONS NECESSARY FOR THE DISCUSSION ARE SET OUT IN
THE NOTE BELOW.  FN10  THE REFERENCES TO ANIMAL AND MEAT INSPECTION
STATUTES IN SEC. 2327(B) MADE APPLICABLE TO THE BUTTER IN QUESTION THE
POWER OF THE SECRETARY OF AGRICULTURE TO INSPECT AND CERTIFY AS
WHOLESOME FOR HUMAN FOOD SALT PORK AND BACON INTENDED FOR EXPORTATION,
AND THE REQUIREMENT THAT INSPECTED CARCASSES OF CATTLE, SHEEP AND SWINE
FOUND UNWHOLESOME SHALL NOT BE SUBJECTS OF INTERSTATE TRANSPORTATION. 

THERE ARE TWO PROVISIONS OF LAW APPLICABLE TO PROCESS AND RENOVATED
BUTTER PRODUCTION WHICH MAY BE CONVENIENTLY CONSIDERED AND DISPOSED OF
AT THIS POINT. 

(A)  BY SEC. 1 OF THE ACT OF MAY 9, 1902, IT IS PROVIDED THAT
IMPORTATIONS OF PROCESS AND RENOVATED BUTTER SHALL BE SUBJECT TO THE
LAWS OF THE STATE AS THOUGH PRODUCED THEREIN.  FN11  THIS IS OBVIOUSLY
AN ADAPTATION OF THE WILSON OR ORIGINAL PACKAGES ACT TO THE PROBLEM OF
BUTTER SUBSTITUTES, PASSED TO OVERCOME THE FORCE OF SOME OF THE CASES
FORBIDDING STATE PROHIBITION OF SALES OF THESE SUBSTITUTES.  FN12  IT
IS CLEARLY INAPPLICABLE TO THE CASE NOW UNDER CONSIDERATION, BUT
INDICATES A CONGRESSIONAL PURPOSE NOT TO HINDER THE FREE EXERCISE OF
STATE POWER, EXCEPTS AS IT MAY BE INCONSISTENT WITH THE FEDERAL
LEGISLATION.  THE ARGUMENT THAT IT IS IMPROPER TO INFER A RESTRICTION
ON CONFISCATION OF MATERIAL WHEN CONFISCATION OF PRODUCT IS PERMITTED
FAILS TO GIVE WEIGHT TO THE DIFFERENCE BETWEEN A CONFISCATION WHICH
INTERFERES WITH PRODUCTION UNDER FEDERAL SUPERVISION AND CONFISCATION
AFTER PRODUCTION BECAUSE OF A HIGHER STANDARD DEMANDED BY A STATE FOR
ITS CONSUMERS.  THE LATTER TYPE IS PERMISSIBLE UNDER ALL THE
AUTHORITIES. 

(B)  BY SEC. 4 OF THE SAME ACT, R.S. SEC. 3243 WAS MADE "TO EXTEND TO
AND INCLUDED AND APPLY TO" MANUFACTURE OF PROCESSED AND RENOVATED
BUTTER.  THAT SECTION, NOW I.R.C. SEC. 2376, PROVIDES THAT THE PAYMENT
OF THE TAX LAID BY THE ACT UNDER CONSIDERATION "SHALL NOT BE HELD TO
EXEMPT ANY PERSON FROM ANY" STATE PENALTY "OR IN ANY MANNER TO
AUTHORIZE THE COMMENCEMENT OR CONTINUANCE OF SUCH TRADE OR BUSINESS
CONTRARY TO THE LAWS OF SUCH STATE."  IT IS URGED BY RESPONDENT THAT
THIS SECTION MAKES IT "CLEAR THAT THE POWER OF THE STATES OVER THE
SUBJECT OF THE MANUFACTURE AND SALE OF PROCESS AND RENOVATED BUTTER
WITHIN THEIR RESPECTIVE LIMITS WAS TO BE UNRESTRICTED, EVEN THOUGH THE
EFFECT OF SUCH REGULATION MIGHT BE THE IMPOSITION OF AN INDIRECT BURDEN
UPON INTERSTATE COMMERCE."  THIS SECTION WITHOUT DOUBT MANIFESTS THE
WILL OF CONGRESS THAT FEDERAL TAXATION SHALL NOT, OF ITSELF,
INCAPACITATE THE STATE.  AUSTIN V. TENNESSEE, 179 U.S. 343; PLUMLEY V.
MASSACHUSETTS, 155 U.S. 461, 466.  IN OUR VIEW, HOWEVER, THE SECTION
GOES NOT FARTHER THAN TO MAKE CERTAIN THAT FEDERAL TAXATION SHALL NOT
PARALYZE STATE ACTION.  OTHER REGULATIONS MAY OR MAY NOT SUPERSEDE
STATE LAWS.  CF. MERCHANTS EXCHANGE V. MISSOURI, 248 U.S. 365, 368;
HARTFORD INDEMNITY CO. V. ILLINOIS, 298 U.S. 155, 159. 

THERE ARE ALSO TWO OTHER ELEMENTS OF THE FEDERAL LEGISLATION WHICH
MAY BE CONSIDERED FROM THE NEGATIVE VIEWPOINT.  THIS IS NOT SOLELY A
REVENUE ACT.  RESPONDENT STRONGLY URGES THAT IT MUST BE TREATED AS
PRIMARILY FOR THE PURPOSE OF INCREASING FEDERAL INCOME, AND THAT
THEREFORE THERE SHOULD BE NO JUDICIAL DEDUCTION THAT THE INCIDENTAL
REGULATORY FEATURES ARE EXCLUSIVE.  FOR THIS THERE IS SUPPORT IN THE
PRECEDENTS.  MCCRAY V. UNITED STATES, 195 U.S. 27.  FN13  WHILE THERE
HAS LONG BEEN RECOGNITION OF THE AUTHORITY OF CONGRESS TO OBTAIN
INCIDENTAL SOCIAL, HEALTH OR ECONOMIC ADVANTAGES FROM THE EXERCISE OF
CONSTITUTIONAL POWERS,  FN14  IT HAS BEEN SAID THAT SUCH COLLATERAL
RESULTS MUST BE OBTAINED FROM STATUTORY PROVISIONS REASONABLY ADAPTED
TO THE CONSTITUTIONAL OBJECTS OF THE LEGISLATION.  LINDER V. UNITED
STATES, 268 U.S. 5, 17.  BUT HERE THE RESPONDENT'S CONTENTION IS
INAPPLICABLE BECAUSE THE REGULATORY PROVISIONS IN CONTROVERSY ARE
AUTHORIZED BY THE COMMERCE CLAUSE.  PITTSBURGH MELTING CO. V. TOTTEN,
248 U.S. 1, 8; SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381;
UNITED STATES V. DARBY, SUPRA, 119. 

FURTHER, WE AGREE WITH RESPONDENT'S CONTENTION THAT THERE IS NO
AUTHORITY TO CONFISCATE OR DESTROY MATERIALS UNDER THE RENOVATED BUTTER
ACT.  IT SHOULD BE NOTED THAT PACKING STOCK ADULTERATED UNDER THE
DEFINITIONS OF SEC. 402 OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, 52
STAT. 1046, WHEN INTRODUCED INTO OR WHILE IN INTERSTATE COMMERCE MAY BE
CONFISCATED UNDER SEC. 304 WHILE IN INTERSTATE COMMERCE OR AT ANY TIME
THEREAFTER.  CF. UNITED STATES V. NINE BARRELS OF BUTTER, 241 F. 499. 
PETITIONER ARGUES THAT THE PROVISIONS FOR MEAT INSPECTION, MADE
APPLICABLE TO PROCESS AND RENOVATED BUTTER FACTORIES BY I.R.C. SEC.
2327, NOTE 10, SUPRA, INCLUDE TITLE 21, SEC. 72 OF THE UNITED STATES
CODE.  SECTION 72 DOES AUTHORIZE THE DESTRUCTION OF UNFIT CARCASSES OF
CATTLE, HOGS AND SHEEP INTENDED FOR HUMAN CONSUMPTION, AND WE ASSUME,
IF APPLICABLE, WOULD AUTHORIZE A SIMILAR DESTRUCTION OF THE MATERIALS
INTENDED FOR BUTTER MANUFACTURE.  SECTION 72, HOWEVER, IS DERIVED FROM
34 STATUTES AT LARGE 674.  THE PROVISIONS WHICH I.R.C. SEC. 2327 MAKES
APPLICABLE ARE THE SANITARY PROVISIONS AS SET FORTH IN THE ACT OF JUNE
30, 1906, C. 3913, 34 STAT. 676.  FN15  THESE RELATE ONLY TO INSPECTION
AND NOT TO CONDEMNATION OR DESTRUCTION.  FN16 NOR DO WE FIND SUCH POWER
IN THE REGULATORY PROVISIONS OF SEC. 2325, NOTE 10, SUPRA, OR ANY
INTERPRETATION BY THE DEPARTMENT OF AGRICULTURE LEADING TO THAT
CONCLUSION.  THE REGULATIONS CONTAIN NO DIRECTIONS FOR CONDEMNATION. 
B.D.I. ORDER NO. 1 - REVISED, DECEMBER 24, 1936; 9 C.F.R. 301.  THE
VIEWS OF THE SOLICITORS OF AGRICULTURE HAVE LONG BEEN IN ACCORD WITH
OUR CONCLUSION.  OPINION NO. 2829, OCTOBER 18, 1940.  FN17 

THE STATE ACT, WHICH PETITIONERS SAY CONFLICTS AND INTERFERES WITH
THE FEDERAL, IS THE USUAL TYPE OF GENERAL FOOD AND DRUG REGULATION. 
ALABAMA CODE 1940, TIT. 2, C. 1.  POWER IS CONFERRED ON THE STATE BOARD
OF AGRICULTURE AND INDUSTRIES TO PROMULGATE RULES AND REGULATIONS WITH
THE COMMISSIONER OF AGRICULTURE AND INDUSTRIES AS THE CHIEF
ADMINISTRATIVE OFFICIAL.  THE ISSUE ARISES OVER ACTION TAKEN UNDER SEC.
495, QUOTED SO FAR AS PERTINENT BELOW.  FN18 

THE CONTROVERSY COMES TO THIS:  THE FEDERAL LAW REQUIRES, SEC. 2325,
NOTE 10, SUPRA, "A RIGID SANITARY INSPECTION  ...  OF ALL FACTORIES AND
STOREHOUSES WHERE PROCESS OR RENOVATED BUTTER IS MANUFACTURED, PACKED,
OR PREPARED FOR MARKET, AND OF THE PRODUCTS THEREOF AND MATERIALS GOING
INTO THE MANUFACTURE OF THE SAME," I.E., PACKING STOCK BUTTER.  FN19
BUT, AS WE HAVE SEEN, THE SECRETARY OF AGRICULTURE OF THE UNITED STATES
CANNOT CONDEMN THE PACKING STOCK BUTTER.  THE COMMISSIONER OF
AGRICULTURE AND INDUSTRIES OF ALABAMA CLAIMS AUTHORITY UNDER THE STATE
STATUTE TO CONDEMN PACKING STOCK BUTTER HELD FOR RENOVATION.  FN20
DOES THE STATE'S CLAIM INTERFERE OR CONFLICT WITH THE FEDERAL POWER? 

ON THE FACE OF THE STATUTES A SOLUTION OF THE CONFLICT MIGHT BE
REACHED ON THE GROUND THAT THE STATE STATUTE AUTHORIZES CONDEMNATION
ONLY WHEN THE PACKING STOCK BUTTER IS HELD FOR SALE "WITHIN THE STATE"
IN ITS THEN CONDITION.  SUCH A SUGGESTION DOES NOT MEET THE ISSUE,
HOWEVER.  THE BILL ALLEGES, AND THE MOTION TO DISMISS AND STIPULATION
ADMIT, THE SEIZURE OF A KIND OF RAW MATERIAL NONE OF WHICH, EITHER THAT
SEIZED OR USED, HAD EVER BEEN SO HELD OR OFFERED FOR SALE IN PACKING
STOCK CONDITION. 

WE LAY ASIDE ALSO, AS INAPPLICABLE, THE SUGGESTION THAT THE HIGHEST
COURT OF ALABAMA, IN STATE V. CECIL, 216 ALA. 391, 113 SO. 254, HELD
THAT THE AGRICULTURAL CODE OF THAT STATE WAS NOT INTENDED TO COVER
GOODS IN INTERSTATE COMMERCE, AND THAT, THEREFORE, SINCE THESE
MATERIALS ARE IN INTERSTATE COMMERCE, THEY ARE BEYOND THE SCOPE OF THE
ALABAMA CODE.  THE OPINION IN THE CECIL CASE DEALT WITH A DIFFERENT
THE DEFENDANT WAS ENGAGED IN INTERSTATE BUSINESS ONLY.  FOR THAT
CONSIDER THE SECTION HERE UNDER EXAMINATION, AND IN OUR VIEW, WHICH, OF
COURSE, IS NOT CONTROLLING ON ALABAMA COURTS, SEC. 495 IN THE ABSENCE
OF CONFLICT OR INTERFERENCE WITH A SPECIFIC FEDERAL ACT WOULD BE
EFFECTIVE TO CONDEMN GOODS HELD IN ALABAMA UNDER THE TERMS OF THE
WHICH WOULD BE ULTIMATELY EXPORTED FROM THE STATE.  STATE POWER OVER
FOOD SUPPLIES HELD WITHIN ITS BORDERS WOULD EXTEND AT LEAST SO FAR. 
SLIGH V. KIRKWOOD, 237 U.S. 52.  ON THE OTHER HAND, FEDERAL CONTROL
OVER INTERSTATE COMMERCE WOULD, IF IT IS EXERCISED, EXTEND OVER THAT
PORTION OF THE MATERIAL WHICH WOULD ULTIMATELY BE SOLD IN ALABAMA AS
RENOVATED BUTTER.  MINNESOTA RATE CASES, 230 U.S. 352, 399; CURRIN V.
WALLACE, 306 U.S. 1, 11; UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S.
533, 568; UNITED STATES V. DARBY, 312 U.S. 100, 122.  BUT, OF COURSE,
IF ANY OF THE FINISHED PRODUCT IS OFFERED FOR SALE IN ALABAMA, SUCH
PRODUCT BECOMES IMMEDIATELY SUBJECT TO THE REQUIREMENTS OF THE PURE
FOOD LAWS OF THAT STATE. 

COMING FINALLY TO THE QUERY WHETHER THE STATE'S CLAIM INTERFERES OR
CONFLICTS WITH THE PURPOSE OR PROVISIONS OF THE FEDERAL LEGISLATION, WE
DETERMINE THAT IT DOES.  THE MANUFACTURE AND DISTRIBUTION IN INTERSTATE
AND FOREIGN COMMERCE OF PROCESS AND RENOVATED BUTTER IS A SUBSTANTIAL
INDUSTRY WHICH, BECAUSE OF ITS MULTI-STATE ACTIVITY, CANNOT BE
EFFECTIVELY REGULATED BY ISOLATED COMPETING STATES.  CF. STEWARD
MACHINE CO. V. DAVIS, 301 U.S. 548, 588; UNITED STATES V. DARBY, 312
U.S. 100, 122.  ITS WHOLESOME AND SUCCESSFUL FUNCTIONING TOUCHES FARM
PRODUCERS AND CITY CONSUMERS.  SCIENCE MADE POSSIBLE THE UTILIZATION OF
LARGE QUANTITIES OF PACKING STOCK BUTTER WHICH FELL BELOW THE STANDARDS
OF PUBLIC DEMAND  FN21  AND CONGRESS UNDERTOOK TO REGULATE THE
PRODUCTION IN ORDER THAT THE RESULTING COMMODITY MIGHT BE FREE OF
INGREDIENTS DELETERIOUS TO HEALTH.  IT LEFT THE STATES FREE TO ACT ON
THE PACKING STOCK SUPPLIES PRIOR TO THE TIME OF THEIR DELIVERY INTO THE
HANDS OF THE MANUFACTURER AND TO REGULATE SALES OF THE FINISHED PRODUCT
WITHIN THEIR BORDERS.  BUT, ONCE THE MATERIAL WAS DEFINITELY MARKED FOR
COMMERCE BY ACQUISITION OF THE MANUFACTURER, IT PASSED INTO THE DOMAIN
OF FEDERAL CONTROL. 

INSPECTION OF THE FACTORY AND OF THE MATERIAL WAS PROVIDED FOR
EXPLICITLY.  CONFISCATION OF THE FINISHED PRODUCT WAS AUTHORIZED UPON A
FINDING OF ITS UNSUITABILITY FOR FOOD THROUGH THE USE OF UNHEALTHFUL OR
UNWHOLESOME MATERIALS, A FINDING THAT MIGHT BE BASED UPON VISUAL OR
DELICATE LIBORATORY TESTS, OR UPON OBSERVATION OF THE USE OF SUCH
MATERIALS IN THE PROCESS OF MANUFACTURE.  I.R.C. SEC. 2325; 9 C.F.R.
SECS. 301.41-43.  BY THE STATUTES AND REGULATIONS,  FN22  THE
DEPARTMENT OF AGRICULTURE HAS AUTHORITY TO WATCH THE CONSUMER'S
INTEREST THROUGHOUT THE PROCESS OF MANUFACTURE AND DISTRIBUTION.  IT
SEES TO THE SANITATION OF THE FACTORIES IN SUCH MINUTIAE AS THE CLEAN
HANDS OF THE EMPLOYEES AND THE ELIMINATION OF OBJECTIONABLE ODORS,
INSPECTS THE MATERIALS USED, INCLUDING AIR FOR AERATING THE OILS, AND
CONFISCATES THE FINISHED PRODUCT WHEN MATERIALS WHICH WOULD BE
UNWHOLESOME IF UTILIZED ARE PRESENT AFTER MANUFACTURE.  FN23
CONFISCATION BY THE STATE OF MATERIAL IN PRODUCTION NULLIFIES FEDERAL
DISCRETION OVER INGREDIENTS.    IT IS SAID THAT THE STATE AND THE
UNITED STATES HAVE WORKED COOPERATIVELY IN PROTECTING CONSUMERS FROM
VICIOUS PRACTICES IN THE HANDLING OF PROCESSED BUTTER; THAT ANY ACTION
BY THE STATE AIDS THE POLICY OF BOTH IN DISPOSING OF UNFIT FOOD; AND
THAT THEREFORE A HARMONIOUS FEDERAL-STATE RELATIONSHIP SHOULD NOT BE
HAMPERED.  OUR DUTY TO DEAL WITH CONTRADICTORY FUNCTIONS OF STATE AND
NATION, ON ANY OCCASION, AND PARTICULARLY WHEN ONE OR THE OTHER IS
CHALLENGED BY PRIVATE INTERESTS, CALLS FOR THE UTMOST EFFORT TO AVOID
CONCLUSIONS WHICH INTERFERE WITH THE GOVERNMENTAL OPERATIONS OF
EITHER.  NOTHING COULD BE MORE FERTILE FOR DISCORD, HOWEVER, THAN A
FAILURE TO DEFINE THE BOUNDARIES OF AUTHORITY.  CLASHES MAY AND SHOULD
BE MINIMIZED BY MUTUAL TOLERANCE; BUT THEY ARE MUCH LESS LIKELY TO
HAPPEN WHEN EACH KNOWS THE LIMITS OF ITS RESPONSIBILITY.  AND, IT IS
ONLY REASONABLE TO ASSUME THAT THE THEORY OF DENYING INCONSISTENT
POWERS TO A STATE IS BASED LARGELY UPON THE BENEFITS TO THE REGULATED
INDUSTRY OF FREEDOM FROM INCONSISTENCIES. 

CONGRESS HARDLY INTENDED THE INTRUSION OF ANOTHER AUTHORITY DURING
THE VERY PREPARATION OF A COMMODITY SUBJECT TO THE SURVEILLANCE AND
COMPREHENSIVE SPECIFICATIONS OF THE DEPARTMENT OF AGRICULTURE.  TO
UPHOLD THE POWER OF THE STATE OF ALABAMA TO CONDEMN THE MATERIAL IN THE
FACTORY, WHILE IT WAS UNDER FEDERAL OBSERVATION AND WHILE FEDERAL
ENFORCEMENT DEEMED IT WHOLESOME, WOULD NOT ONLY HAMPER THE
ADMINISTRATION OF THE FEDERAL ACT BUT WOULD BE INCONSISTENT WITH ITS
REQUIREMENTS.  WHETHER THE SANCTION USED TO ENFORCE THE REGULATION IS
CONDEMNATION OF THE MATERIAL OR THE PRODUCT IS NOT SIGNIFICANT.  SINCE
THERE WAS FEDERAL REGULATION OF THE MATERIALS AND COMPOSITION OF THE
MANUFACTURED ARTICLE, THERE COULD NOT BE SIMILAR STATE REGULATION OF
THE SAME SUBJECT.  FN24  REVERSED. 

FN1  PETITIONER, PARAGRAPH 19 OF ITS BILL OF COMPLAINT, AVERS THAT
PACKING STOCK BUTTER IS DELIVERED TO IT FOR PROCESSING WHICH IS
PRODUCED IN ALABAMA AND OTHER STATES; THAT THE ALABAMA OFFICIALS,
PARAGRAPH 20, CLAIM THE RIGHT TO ENTER THE PREMISES WHERE IT RECEIVES
THE BUTTER ACQUIRED BY IT IN INTERSTATE COMMERCE AND TO "SEIZE, SUSPEND
OR OTHERWISE DEPRIVE PLAINTIFF OF THE RIGHT TO USE SUCH RAW MATERIAL OR
PACKING STOCK BUTTER, AND TO STOP AND SEARCH TRUCKS MOVING IN
INTERSTATE COMMERCE HAULING SAID RAW MATERIAL FROM PLACES WITHOUT THE
STATE OF ALABAMA TO PLAINTIFF'S PLACE OF BUSINESS IN BIRMINGHAM,
ALABAMA, AND TO SEIZE, SUSPEND OR OTHERWISE DEPRIVE PLAINTIFF THE RIGHT
TO USE THE SAID RAW MATERIAL OR PACKING STOCK BUTTER BEING SO
TRANSPORTED IN INTERSTATE COMMERCE AND TO (STOP AND SEARCH) TRUCKS
TRANSPORTING THE AFORESAID RAW MATERIAL FROM POINTS IN ALABAMA TO
PLAINTIFF'S PLANT IN BIRMINGHAM, ALABAMA, TO BE USED IN THE MANUFACTURE
OF PROCESS OF RENOVATED BUTTER AS AFORESAID." 

PETITIONER FURTHER AVERS, AS TO SEIZURES AT ITS PLANT, "BETWEEN,
TOWIT, THE 17TH DAYS OF APRIL, 1939, AND THE 22ND DAY OF JUNE, 1940,
DEFENDANTS ON 16 SEPARATE OCCASIONS, SEIZED IN BIRMINGHAM, ALABAMA, A
TOTAL OF 20924 POUNDS OF PLAINTIFF'S RAW MATERIAL OR PACKING STOCK
BUTTER WHICH ORIGINATED IN WHOLE OR IN PART, IN STATES OF THE UNITED
STATES OUTSIDE OF THE STATE OF ALABAMA AND WHICH HAD BEEN SO DELIVERED
TO THE PLAINTIFF'S PLANT IN BIRMINGHAM, ALABAMA, AS RAW MATERIAL AND
WHICH WAS NOT BEING SOLD, OFFERED OR EXPOSED FOR SALE, OR ATTEMPTED FOR
SALE IN ITS THEN CONDITION BUT WAS BEING HELD BY THE PLAINTIFF SOLELY
AND EXCLUSIVELY FOR THE PURPOSE OF USING THE SAME AS RAW MATERIAL OUT
OF WHICH TO MANUFACTURE PROCESS OR RENOVATED BUTTER IN THE USUAL COURSE
OF PLAINTIFF'S BUSINESS.  ...  PLAINTIFF AVERS ON, TO-WIT, THE 21ST DAY
OF JUNE, 1940, IN MAKING THE LAST SEIZURE, ABOVE REFERRED TO, THE
DEFENDANTS STOPPED A TRUCK MOVING IN INTERSTATE COMMERCE FROM THE STATE
OF GEORGIA TO THE STATE OF ALABAMA TRANSPORTING SAID RAW MATERIAL KNOWN
AS PACKING STOCK BUTTER FROM THE STATE OF GEORGIA TO THE PLAINTIFF IN
BIRMINGHAM, ALABAMA.  PLAINTIFF AVERS THAT AS A RESULT OF THE SEIZURE
OF SAID RAW MATERIALS BY DEFENDANTS, IT HAS BEEN DENIED THE USE
THEREOF; THE SEIZURE AND DETENTION OF SAID RAW MATERIAL HAS CAUSED
GREAT FINANCIAL LOSS TO THE PLAINTIFF IN THAT PLAINTIFF IS REQUIRED TO
PAY THE STORAGE ON THE SAME AND IS DENIED THE USE OF SUCH RAW MATERIALS
THAT PLAINTIFF SORELY NEEDS IN THE CONDUCT OF ITS BUSINESS, AND HAS
CAUSED PLAINTIFF'S PLANT TO REMAIN IDLE FROM TIME TO TIME FOR THE LACK
OF SUFFICIENT RAW MATERIAL TO KEEP THE SAME OPERATING; THAT SAID ACTION
OF THE DEFENDANTS DEMORALIZES PLAINTIFF'S EMPLOYEES WHO ARE EMPLOYED,
TO OPERATE SAID PLANT, AND IS CALCULATED TO AND DOES INTERFERE WITH THE
SALE OF ITS FINISHED PRODUCT IN INTERSTATE COMMERCE." 

FN2  CONSTITUTION, ARTICLE VI. 

FN3  CASES WHICH SUSTAIN STATE ENACTMENTS AS PERMISSIBLE, WHERE
FEDERAL LEGISLATION GENERALLY APPLICABLE TO THE FIELD EXISTS, RECOGNIZE
THAT FEDERAL ACTION MIGHT FORBID OR EXCLUDE THE STATE STATUTES APPROVED
IN THOSE INSTANCES.  SAVAGE V. JONES, 225 U.S. 501, 529:  "THE QUESTION
REMAINS WHETHER THE STATUTE OF INDIANA IS IN CONFLICT WITH THE ACT OF
CONGRESS KNOWN AS THE FOOD AND DRUGS ACT OF JUNE 30, 1906(34 STAT. 768,
C. 3915).  FOR THE FORMER, SO FAR AS IT AFFECTS INTERSTATE COMMERCE
EVEN INDIRECTLY AND INCIDENTALLY, CAN HAVE NO VALIDITY IF REPUGNANT TO
THE FEDERAL REGULATION."  CORN PRODUCTS RFG.  CO. V. EDDY, 249 U.S.
427; MINTZ V. BALDWIN, 289 U.S. 346, 351; PACIFIC STATES CO. V. WHITE,
296 U.S. 176, 183; HARTFORD INDEMNITY CO. V. ILLINOIS, 298 U.S. 155,
158; WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79, 85; EICHHOLZ V. COMM'N,
306 U.S. 268, 274; DUCKWORTH V. ARKANSAS, 314 U.S. 390. 

FN4  COOLEY V. BOARD OF WARDENS, 12 HOW.  299, 319; BOWMAN V. CHICAGO
& NORTHWESTERN RY. CO., 125 U.S. 465, 485; LEISY V. HARDIN, 135 U.S.
100, 119; MINNESOTA RATE CASES, 230 U.S. 352, 399.  WHERE THE FEDERAL
LEGISLATION AUTHORIZES STATE ACTION, SUCH STATE ACTION IS PERMISSIBLE
EVEN AS TO MATTERS WHICH COULD OTHERWISE BE REGULATED ONLY BY UNIFORM
NATIONAL ENACTMENTS.  IN RE RAHRER, 140 U.S. 545, 561; CLARK DISTILLING
CO. V. WESTERN MARYLAND RY. CO., 242 U.S. 311, 325, ET SEQ.; WHITFIELD
V. OHIO, 297 U.S. 431; KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENTRAL
R. CO., 299 U.S. 334, 350. 

FN5  MERCHANTS EXCHANGE V. MISSOURI, 248 U.S. 365, 368(UNITED STATES
WAREHOUSE ACT PERMITS STATE LAWS FOR INSPECTION AND WEIGHING BY
SPECIFIC DIRECTION OF SEC. 29, 39 STAT. 490; CF. ACT OF MARCH 2, 1931,
C. 366, 46 STAT. 1465); WHIPPLE V. MARTINSON, 256 U.S. 41(STATE
REGULATES PRESCRIPTIONS OF NARCOTICS FURTHER THAN UNITED STATES);
NORTHWESTERN, BELL TEL. CO. V. NEBRASKA COMM'N, 297 U.S. 471,
479(TELEPHONE DEPRECIATION); HARTFORD INDEMNITY CO. V. ILLINOIS, 298
U.S. 155, 159(SPECIFIC AUTHORITY FOR STATE LAWS TO CONTINUE IN
OPERATION); KELLY V. WASHINGTON, 302 U.S. 1, 9(STATE INSPECTION OF
HULLS OMITTED FROM FEDERAL INSPECTION); SOUTH CAROLINA HWY.  DEPT.  V.
BARNWELL BROS., 303 U.S. 177, NOTE 5(STATE REGULATION OF TRUCK WEIGHT
AND WIDTH OMITTED FROM FEDERAL REGULATION BY THE FEDERAL MOTOR CARRIER
ACT OF 1935, 49 STAT. 546); WELCH CO. V. NEW HAMPSHIRE, 306 U.S.
79(MAXIMUM HOURS OF EMPLOYEES REGULATED BY STATE PRIOR TO EFFECTIVE
DATE OF FEDERAL REGULATION); EICHHOLZ V. COMM'N, 306 U.S. 268,
274(INTRASTATE TRANSPORTATION REGULATIONS INFRINGED); MAURER V.
HAMILTON, 309 U.S. 598, 606(STATE REGULATION OF SIZE AND WEIGHT
RESERVED FROM FEDERAL REGULATION).  FREQUENTLY THIS COURT HAS
RECOGNIZED THE POWER OF THE STATE IN SUCH CIRCUMSTANCES OVER OTHER
INTERSTATE CARRIERS.  MINNESOTA RATE CASES, 230 U.S. 352, 408, AND
CASES CITED; ERIE R. CO. V. WILLIAMS, 233 U.S. 685; ERIE R. CO. V.
PUBLIC UTILITY COMM'RS, 254 U.S. 394, 409; MISSOURI PACIFIC R. CO. V.
NORWOOD, 283 U.S. 249. 

FN6  CF. 7 U.S.C. SEC. 269(1940); 29 U.S.C. SEC. 160(A)(1940). 

FN7  TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426,
437; ADAMS EXPRESS CO. V. CRONINGER, 226 U.S. 491, 505; NEW YORK
CENTRAL R. CO. V. WINFIELD, 244 U.S. 147, 150; OREGON-WASHINGTON R. CO.
V. WASHINGTON, 270 U.S. 87, 101(CF. AMENDMENT TO MEET DECISION, 44
STAT. 250); NAPIER V. ATLANTIC COAST LINE, 272 U.S. 605, 612; MISSOURI
PACIFIC R. CO. V. PORTER, 273 U.S. 341, 345; HINES V. DAVIDOWITZ, 312
U.S. 52, 66; ILLINOIS NATURAL GAS CO. V. CENTRAL ILL. PUB. SERV. CO.,
314 U.S. 498, 509. 

FN8  TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., SUPRA; SAVAGE
V. JONES, 225 U.S. 501, 533; CORN PRODUCTS RFG.  CO. V. EDDY, 249 U.S.
427, 435; WHIPPLE V. MARTINSON, 256 U.S. 41, 45; MINTZ V. BALDWIN, 289
U.S. 346, 350; KELLY V. WASHINGTON, 302 U.S. 1, 10. 

FN9  THESE SECTIONS ARE DERIVED FROM THE ACTS OF AUGUST 2, 1886, C.
840, 24 STAT. 209; MAY 9, 1902, C. 784, 32 STAT. 193; AUGUST 10, 1912,
C. 284, 37 STAT. 273. 

FN10  SEC. 2325.  INSPECTION, MANUFACTURE, STORAGE, AND MARKING OF
PROCESS OR RENOVATED BUTTER.  "THE SECRETARY OF AGRICULTURE IS
AUTHORIZED AND REQUIRED TO CAUSE A RIGID SANITARY INSPECTION TO BE
MADE, AT SUCH TIMES AS HE MAY DEEM PROPER OR NECESSARY, OF ALL
FACTORIES AND STOREHOUSES WHERE PROCESS OR RENOVATED BUTTER IS
MANUFACTURED, PACKED, OR PREPARED FOR MARKET, AND OF THE PRODUCTS
THEREOF AND MATERIALS GOING INTO THE MANUFACTURE OF THE SAME.  ALL
PROCESS OR RENOVATED BUTTER AND THE PACKAGES CONTAINING THE SAME SHALL
BE MARKED WITH THE WORDS 'RENOVATED BUTTER' OR 'PROCESS BUTTER' AND BY
SUCH OTHER MARKS, LABELS, OR BRANDS AND IN SUCH MANNER AS MAY BE
PRESCRIBED BY THE SECRETARY OF AGRICULTURE, AND NO PROCESS OR RENOVATED
BUTTER SHALL BE SHIPPED OR TRANSPORTED FROM ITS PLACE OF MANUFACTURE
INTO ANY OTHER STATE OR TERRITORY OR THE DISTRICT OF COLUMBIA, OR TO
ANY FOREIGN COUNTRY, UNTIL IT HAS BEEN MARKED AS PROVIDED IN THIS
REGULATIONS FOR CARRYING THIS SECTION AND SECTIONS 2326(C) AND 2327(B)
INTO EFFECT AND SHALL CAUSE TO BE ASCERTAINED AND REPORTED FROM TIME TO
TIME THE QUANTITY AND QUALITY OF PROCESS OR RENOVATED BUTTER
MANUFACTURED, AND THE CHARACTER AND THE CONDITION OF THE MATERIAL FROM
WHICH IT IS MADE.  AND HE SHALL ALSO HAVE POWER TO ASCERTAIN WHETHER OR
NOT MATERIALS USED IN THE MANUFACTURE OF SAID PROCESS OR RENOVATED
BUTTER ARE DELETERIOUS TO HEALTH OR UNWHOLESOME IN THE FINISHED
PRODUCT, AND IN CASE SUCH DELETERIOUS OR UNWHOLESOME MATERIALS ARE
FOUND TO BE USED IN PRODUCT INTENDED FOR EXPORTATION OR SHIPMENT INTO
OTHER STATES OR IN COURSE OF EXPORTATION OR SHIPMENT HE SHALL HAVE
POWER TO CONFISCATE THE SAME." 

SEC. 2326(C).  FAILURE TO COMPLY WITH PROVISIONS RELATING TO THE
MANUFACTURE, STORAGE, AND MARKING OF PROCESS OR RENOVATED BUTTER.  "ANY
PERSON, FIRM, OR CORPORATION VIOLATING ANY OF THE PROVISIONS OF SECTION
2325 SHALL BE DEEMED GUILTY OF A MISDEMEANOR AND ON CONVICTION THEREOF
SHALL BE PUNISHED BY A FINE OF NOT LESS THAN $50 NOR MORE THAN $500 OR
BY IMPRISONMENT NOT LESS THAN ONE MONTH NOR MORE THAN SIX MONTHS, OR BY
BOTH SAID PUNISHMENTS, IN THE DISCRETION OF THE COURT." 

SEC. 2327(B).  INSPECTION OF LIVE CATTLE AND MEAT.  "ALL PARTS OF AN
ACT PROVIDING FOR AN INSPECTION OF MEATS FOR EXPORTATION, APPROVED
AUGUST 30, 1890, C. 839, 26 STAT. 414, AND OF AN ACT TO PROVIDE FOR THE
INSPECTION OF LIVE CATTLE, HOGS, AND THE CARCASSES AND PRODUCTS THEREOF
WHICH ARE THE SUBJECTS OF INTERSTATE COMMERCE, APPROVED MARCH 3, 1891,
C. 555, 26 STAT. 1089, AND OF AMENDMENT THERETO APPROVED MARCH 2, 1895,
C. 169, SEC. 1, 28 STAT. 732, WHICH ARE APPLICABLE TO THE SUBJECTS AND
PURPOSES DESCRIBED IN SECTION 2325 SHALL APPLY TO PROCESS OR RENOVATED
BUTTER." 

SEC. 2327(C).  SLAUGHTERING AND MEAT CANNING.  "THE SANITARY
PROVISIONS FOR SLAUGHTERING, MEAT CANNING, OR SIMILAR ESTABLISHMENTS AS
SET FORTH IN THE ACT OF JUNE 30, 1906, C. 3913, 34 STAT. 676, SHALL BE
EXTENDED TO COVER RENOVATED BUTTER FACTORIES AS DEFINED IN THIS
SUBCHAPTER, UNDER SUCH REGULATIONS AS THE SECRETARY OF AGRICULTURE MAY
PRESCRIBE." 

FN11  32 STAT. 193, 21 U.S.C. SEC. 25.  "ALL ARTICLES KNOWN AS
OLEOMARGARINE, BUTTERINE, IMITATION, PROCESS, RENOVATED, OR ADULTERATED
BUTTER, OR IMITATION CHEESE, OR ANY SUBSTANCE IN THE SEMBLANCE OF
BUTTER OR CHEESE NOT THE USUAL PRODUCT OF THE DAIRY AND NOT MADE
EXCLUSIVELY OF PURE AND UNADULTERATED MILK OR CREAM, TRANSPORTED INTO
ANY STATE OR TERRITORY OR THE DISTRICT OF COLUMBIA, AND REMAINING
THEREIN FOR USE, CONSUMPTION, SALE, OR STORAGE THEREIN, SHALL, UPON THE
ARRIVAL WITHIN THE LIMITS OF SUCH STATE OR TERRITORY OR THE DISTRICT OF
COLUMBIA, BE SUBJECT TO THE OPERATION AND EFFECT OF THE LAWS OF SUCH
STATE OR TERRITORY OR THE DISTRICT OF COLUMBIA, ENACTED IN THE EXERCISE
OF ITS POLICE POWERS TO THE SAME EXTENT AND IN THE SAME MANNER AS
THOUGH SUCH ARTICLES OR SUBSTANCES HAD BEEN PRODUCED IN SUCH STATE OR
TERRITORY OR THE DISTRICT OF COLUMBIA, AND SHALL NOT BE EXEMPT
THEREFROM BY REASON OF BEING INTRODUCED THEREIN IN ORIGINAL PACKAGES OR
OTHERWISE." 

FN12  CF. 26 STAT. 313; IN RE RAHRER, 140 U.S. 545; SCHOLLENBERGER V.
PENNSYLVANIA, 171 U.S. 1; COLLINS V. NEW HAMPSHIRE, 171 U.S. 30; STATE
V. COLLINS, 70 N.H. 218, 45 A. 1080, AFF. BY AN EQUALLY DIVIDED COURT,
187 U.S. 636; PLUMLEY V. MASSACHUSETTS, 155 U.S. 461. 

FN13  CF.  IN RE KOLLOCK, 165 U.S. 526; PLUMLEY V. MASSACHUSETTS, 155
U.S. 461, 466.  THESE WERE BASED ON THE EARLIER ACT OF 1886, 24 STAT.
209, WHICH DID NOT CARRY THE INSPECTION AND CONDEMNATION PROVISIONS NOW
APPLICABLE TO PROCESS AND RENOVATED BUTTER. 

FN14  VEAZIE BANK V. FENNO, 8 WALL.  533; MCCRAY V. UNITED STATES,
195 U.S. 27, 55; UNITED STATES V. DARBY, 312 U.S. 100, 115. 

FN15  "THE SECRETARY OF AGRICULTURE SHALL CAUSE TO BE MADE, BY
EXPERTS IN SANITATION OR BY OTHER COMPETENT INSPECTORS, SUCH INSPECTION
OF ALL SLAUGHTERING, MEAT CANNING, SALTING, PACKING, RENDERING, OR
SIMILAR ESTABLISHMENTS IN WHICH CATTLE, SHEEP, SWINE, AND GOATS ARE
SLAUGHTERED AND THE MEAT AND MEAT FOOD PRODUCTS THEREOF ARE PREPARED
FOR INTERSTATE OR FOREIGN COMMERCE AS MAY BE NECESSARY TO INFORM
HIMSELF CONCERNING THE SANITARY CONDITIONS OF THE SAME, AND TO
PRESCRIBE THE RULES AND REGULATIONS OF SANITATION UNDER WHICH SUCH
ESTABLISHMENTS SHALL BE MAINTAINED; AND WHERE THE SANITARY CONDITIONS
OF ANY SUCH ESTABLISHMENT ARE SUCH THAT THE MEAT OR MEAT FOOD PRODUCTS
ARE RENDERED UNCLEAN, UNSOUND, UNHEALTHFUL, UNWHOLESOME, OR OTHERWISE
UNFIT FOR HUMAN FOOD, HE SHALL REFUSE TO ALLOW SAID MEAT OR MEAT FOOD
PRODUCTS TO BE LABELED, MARKED, STAMPED, OR TAGGED AS 'INSPECTED AND
PASSED.'" 

FN16  AN ERROR APPEARED IN 26 U.S.C. SEC. 997(C) IN THE CODIFICATION
OF THE PROVISO OF 37 STAT. 273, WHICH EXTENDED THE SANITARY PROVISIONS
OF THE ACT OF JUNE 30, 1906, 34 STAT. 676, TO RENOVATED BUTTER, SO THAT
THE CODIFICATION READ:  "THE SANITARY PROVISIONS FOR SLAUGHTERING, MEAT
CANNING, OR SIMILAR ESTABLISHMENTS AS SET FORTH IN SECTIONS 71 TO 93 OF
TITLE 21, SHALL BE EXTENDED TO COVER RENOVATED BUTTER FACTORIES AS
DEFINED IN THIS SUBCHAPTER, UNDER SUCH REGULATIONS AS THE SECRETARY OF
AGRICULTURE MAY PRESCRIBE."  THIS ERROR WAS CORRECTED IN I.R.C. SEC.
2327(C).  SEE NOTE 10, SUPRA. 

FN17  LEGISLATIVE HISTORY INDICATES THAT A CONTRARY PURPOSE WAS IN
THE MIND OF THE DEPARTMENTAL PROPONENTS OF THE 1912 LEGISLATION.  SEE
48 CONG. REC. 2690-91, 6325; HOUSE REP. NO. 271, 62D CONG., 2D SESS.,
P. 4; SEN. REP. NO. 696, 62D CONG., 2D SESS., P. 2; CONFERENCE REPORT,
HOUSE REP. NO. 1150, 62D CONG., 2D SESS., PP. 1, 10; HEARINGS ON THE
ESTIMATES OF APPROPRIATIONS (AGRICULTURAL APPROPRIATION BILL), HOUSE
COMMITTEE ON AGRICULTURE, 62D CONG., 2D SESS., PP. 325-328; HEARING ON
AGRICULTURE APPROPRIATION BILL, SENATE SUBCOMMITTEE OF COMMITTEE ON
AGRICULTURE AND FORESTRY, 62D CONG., 2D SESS., PP. 14-15. 

FN18  "ANY ARTICLE, SUBSTANCE, MATERIAL, OR PRODUCT, THE POSSESSION
AND SALE OF WHICH IS REGULATED UNDER THE PROVISIONS OF THIS CHAPTER,
WHICH IS ADULTERATED, MISBRANDED  ...  WITHIN THE MEANING OF ANY
PROVISION OF THIS CHAPTER, AND WHICH IS MANUFACTURED FOR SALE, HELD IN
POSSESSION WITH INTENT TO SELL, OFFERED OR EXPOSED FOR SALE, OR SOLD OR
DELIVERED WITHIN THIS STATE, SHALL BE LIABLE TO BE PROCEEDED AGAINST IN
THE CIRCUIT COURT OF THE COUNTY WHERE THE SAME IS FOUND, AND SEIZED FOR
CONFISCATION BY WRIT OF ATTACHMENT FOR CONDEMNATION.  SUCH WRIT SHALL
ISSUE UPON THE SWORN COMPLAINT OF THE COMMISSIONER OR HIS DULY
AUTHORIZED AGENT,  ...  IF A JUDGMENT OF CONDEMNATION AND CONFISCATION
IS RENDERED AGAINST SUCH ARTICLE OR PRODUCT AS BEING ADULTERATED ...
THE SAME SHALL BE DISPOSED OF BY DESTRUCTION OR SALE, AS THE COURT MAY
DIRECT  ..." 

FN19  26 U.S.C. SEC. 2325.  "AND HE SHALL ALSO HAVE POWER TO
ASCERTAIN WHETHER OR NOT MATERIALS USED IN THE MANUFACTURE OF SAID
PROCESS OR RENOVATED BUTTER ARE DELETERIOUS TO HEALTH OR UNWHOLESOME IN
THE FINISHED PRODUCT, AND IN CASE SUCH DELETERIOUS OR UNWHOLESOME
MATERIALS ARE FOUND TO BE USED IN PRODUCT INTENDED FOR EXPORTATION OR
SHIPMENT INTO OTHER STATES OR IN COURSE OF EXPORTATION OR SHIPMENT HE
SHALL HAVE POWER TO CONFISCATE THE SAME." 

FN20  "...  WHICH IS MANUFACTURED FOR SALE, HELD IN POSSESSION WITH
INTENT TO SELL, OFFERED OR EXPOSED FOR SALE, OR SOLD OR DELIVERED
WITHIN THIS STATE  ..." 

FN21  THE ANNUAL REPORT OF THE COMMISSIONER OF INTERNAL REVENUE FOR
THE YEAR ENDING JUNE 30, 1903, SHOWS THAT, DURING THE FIRST FISCAL YEAR
AFTER THE ADOPTION OF THE RENOVATED BUTTER ACT, THE PRODUCTION WAS
54,658,790 POUNDS.  HOUSE DOC. NO. 11, 58TH CONG., 2D SESS., P. 161. 
IN MORE RECENT YEARS, ACCORDING TO THE REPORT FOR THE YEAR ENDING JUNE
30, 1940, P. 144, TABLE 39, THE PRODUCTION WAS: 

1931..........1,499,041 LBS.      1936..........2,252,920 LBS. 

1932..........1,124,299  "        1937..........2,737,181  " 

1933..........1,002,131  "        1938..........2,435,499  " 

1934..........1,219,166  "        1939..........2,906,117  " 

1935..........1,844,561  "        1940..........2,706,852  " 

FN22  9 C.F.R. SECS. 301.3-21, 301.32-33. 

FN23  ID., "301.33 DELETERIOUS PRODUCTS SEIZABLE.  THE SECRETARY OF
AGRICULTURE WILL DETERMINE WHETHER OR NOT MATERIALS BEING USED IN THE
MANUFACTURE OF PROCESS OR RENOVATED BUTTER WILL BE DELETERIOUS TO
HEALTH OR UNWHOLESOME IN THE FINISHED PRODUCT.  IF ANY MATERIALS WHICH
HAVE BEEN SO DETERMINED TO BE DELETERIOUS TO HEALTH OR UNWHOLESOME IN
THE FINISHED PRODUCT ARE FOUND TO BE PRESENT IN ANY PROCESS OR
RENOVATED BUTTER, INTENDED FOR, OR IN COURSE OF, EXPORTATION OR
SHIPMENT IN INTERSTATE COMMERCE, SUCH PROCESS OR RENOVATED BUTTER WILL
BE CONFISCATED, AS PROVIDED FOR IN SEC. 301.44." 

FN24  CF.  CHARLESTON & W.C. RY. CO. V. VARNVILLE CO., 237 U.S. 597,
604,  - "WHEN CONGRESS HAS TAKEN THE PARTICULAR SUBJECT-MATTER IN HAND
CONCIDENCE IS AS INEFFECTIVE AS OPPOSITION.  ..."  ERIE R. CO. V. NEW
YORK, 233 U.S. 671, 683, - "IT IS NOT THAT THERE MAY BE DIVISION OF THE
FIELD OF REGULATION, BUT AN EXCLUSIVE OCCUPATION OF IT WHEN CONGRESS
MANIFESTS A PURPOSE TO ENTER IT." 

MR. CHIEF JUSTICE STONE: 

I THINK THE JUDGMENT SHOULD BE AFFIRMED. 

THE DECISION OF THE COURT APPEARS TO ME TO DEPART RADICALLY FROM THE
SALUTARY PRINCIPLE THAT CONGRESS, IN ENACTING LEGISLATION WITHIN ITS
CONSTITUTIONAL AUTHORITY, WILL NOT BE DEEMED TO HAVE INTENDED TO STRIKE
DOWN A STATE STATUTE DESIGNED TO PROTECT THE HEALTH AND SAFETY OF THE
PUBLIC UNLESS THE STATE ACT, IN TERMS OR IN ITS PRACTICAL
ADMINISTRATION, CONFLICTS WITH THE ACT OF CONGRESS OR PLAINLY AND
PALPABLY INFRINGES ITS POLICY.  SINNOT V. DAVENPORT, 22 HOW.  227, 243;
MISSOURI, K. & T. RY. CO. V. HABER, 169 U.S. 613, 623; REID V.
COLORADO, 187 U.S. 137, 148; SAVAGE V. JONES, 225 U.S. 501, 533;
MISSOURI, K. & T. RY. CO. V. HARRIS, 234 U.S. 412, 419; CAREY V. SOUTH
DAKOTA, 250 U.S. 118, 122; ATCHISON, T. & S.F. RY. CO. V. RAILROAD
COMMISSION, 283 U.S. 380, 391; TOWNSEND V. YEOMANS, 301 U.S. 441, 454;
KELLY V. WASHINGTON, 302 U.S. 1, 10; CF. MAURER V. HAMILTON, 309 U.S.
598, 614. 

WE HAVE HERE NO QUESTION OF AN UNEXERCISED DISCRETIONARY POWER GIVEN
BY CONGRESS TO A FEDERAL OFFICIAL AS THE MEANS OF REGULATING INTERSTATE
COMMERCE, WHERE THE FULL EXERCISE OF HIS AUTHORITY WOULD CONFLICT WITH
AN ASSERTION OF THE STATE POWER.  IN SUCH CIRCUMSTANCES THE STATE'S
AUTHORITY TO ACT TURNS UPON THE QUESTION, WHICH THIS COURT HAS OFTEN
BEEN CALLED UPON TO ANSWER, WHETHER THE FAILURE OF THE FEDERAL OFFICIAL
TO EXERCISE HIS FULL POWER IS IN EFFECT A CONTROLLING ADMINISTRATIVE
RULING THAT NO FURTHER REGULATION BY EITHER FEDERAL OR STATE GOVERNMENT
IS NEEDFUL.  NAPIER V. ATLANTIC COAST LINE RY. CO., 272 U.S. 605; CF.
MINTZ V. BALDWIN, 289 U.S. 346; NORTHWESTERN BELL TELEPHONE CO. V.
RAILWAY COMMISSION, 297 U.S. 471; WELCH CO. V. NEW HAMPSHIRE, 306 U.S.
79. 

HERE, CONCEDEDLY, THE SECRETARY IS EXERCISING ALL THE AUTHORITY HE
HAS.  HIS AUTHORITY UNDER 32 STAT. 196, 26 U.S. C. SEC. 2325, TO SEIZE
AND CONDEMN IS RESTRICTED TO THE MANUFACTURED PRODUCT, "RENOVATED
BUTTER."  IT DOES NOT EXTEND TO "PACKING STOCK BUTTER" INTENDED TO BE
USED IN MAKING THE PRODUCT.  BUT AS CONSTRUED BY THE COURT THE ACT HAS
DEPRIVED ALABAMA OF THE POWER WHICH IT WOULD OTHERWISE POSSESS TO SEIZE
SPOILED PACKING STOCK BUTTER, WITHOUT CONFERRING THAT AUTHORITY ON ANY
FEDERAL OFFICER.  THUS BOTH THE FEDERAL AND THE STATE GOVERNMENTS ARE
LEFT POWERLESS TO CONDEMN AN ARTICLE WHICH IS A NOTORIOUS MENACE TO
HEALTH,  FN1  A SUBSTANTIAL PART OF WHICH IS NEVER SHIPPED OUT OF THE
STATE.  A CONGRESSIONAL PURPOSE TO IMMUNIZE FROM REGULATION, STATE AND
NATIONAL, A SUBSTANCE SO OBVIOUSLY REQUIRING CONTROL IS NOT LIGHTLY TO
BE INFERRED, ESPECIALLY WHERE PUBLIC HEALTH OR SAFETY IS CONCERNED. 
MINTZ V. BALDWIN, SUPRA, 350; KELLY V. WASHINGTON, SUPRA, 14; WELCH CO.
V. NEW HAMPSHIRE, SUPRA, 85. 

THE SECRETARY IS ALSO GIVEN AUTHORITY BY THE FEDERAL ACT TO INSPECT
THE PLACE AND PROCESS OF MANUFACTURING RENOVATED BUTTER, THE
INGREDIENTS GOING INTO IT, AND THE RENOVATED PRODUCT ITSELF, WHICH HE
MAY CONFISCATE IF HE FINDS IT TO BE DELETERIOUS TO HEALTH.  BUT HIS
AUTHORITY OVER PACKING STOCK BUTTER BEFORE IT IS USED FOR MANUFACTURE
IS RESTRICTED TO ITS INSPECTION.  THE INSPECTION THUS AFFORDS A MEANS
OF DETERMINING WHETHER THE MANUFACTURED PRODUCT IN WHICH PACKING STOCK
IS USED, AND WHICH THE SECRETARY MAY SEIZE, CONTAINS A DELETERIOUS
INGREDIENT, THE PRESENCE OF WHICH IN THE PRODUCT CAN OFTEN BE
ASCERTAINED, IF AT ALL, ONLY BY DELICATE CHEMICAL TESTS.  FN2 

THE LEGISLATIVE HISTORY OF THE FEDERAL ACT SHOWS, WHAT IS EVIDENT
FROM ITS WORDS, THAT ITS AIM IS TO USE THE FEDERAL POWER TO PREVENT, BY
SEIZURE AND CONDEMNATION, THE INTERSTATE DISTRIBUTION OF RENOVATED
BUTTER WHEN FOUND UNFIT FOR FOOD.  35 CONG. REC. 3316, 4586.  THE GRANT
OF AUTHORITY TO THE SECRETARY TO INSPECT THE INGREDIENTS AND SEIZE THE
PRODUCT GIVES NO INDICATION OF A CONGRESSIONAL PURPOSE TO HAMPER STATE
CONTROL OVER THE CONTAMINATED MATERIALS BEFORE THEIR MANUFACTURE INTO
THE FINISHED PRODUCT.  INDEED, CONGRESS NOT ONLY CONFINED THE
SECRETARY'S AUTHORITY TO MAKE SEIZURES TO THE RENOVATED PRODUCT, BUT IN
ASSUMING THIS CONTROL IT WAS AT PAINS TO PROVIDE BY 32 STAT. 193, 21
U.S.C. SEC. 25, THAT THE STATES SHOULD BE FREE TO EXERT THEIR POLICE
POWER OVER THE RENOVATED MATERIAL "IN THE SAME MANNER AS THOUGH" IT
"HAD BEEN PRODUCED IN SUCH STATE OR TERRITORY."  THE SPONSOR IN THE
SENATE OF THE BILL CONTAINING THIS PROVISION EMPHASIZED THAT IT WAS NOT
INTENDED TO RESTRICT THE POWER OF THE STATES, BUT RATHER TO EXPAND
THEIR AUTHORITY TO INCLUDE ORIGINAL PACKAGES IN INTERSTATE COMMERCE. 
35 CONG. REC. 3605.  IN THE FACE OF THESE DISAVOWALS WITH RESPECT TO
THE FINISHED PRODUCT WHICH CONGRESS BROUGHT UNDER FEDERAL AUTHORITY,
ONE CAN HARDLY INFER A CONGRESSIONAL PURPOSE TO RESTRICT THE STATES'
POWER OVER THE INGREDIENT WHICH CONGRESS DID NOT SEEK TO CONTROL; OR
THAT CONGRESS COULD HAVE HAD ANY OBJECT IN DENYING THE STATES POWER TO
SEIZE THE OFFENSIVE INGREDIENT WHEN IT LEFT THEM FREE TO SEIZE THE
PRODUCT BECAUSE IT CONTAINED THE INGREDIENT. 

MOREOVER, NOT ONLY IS THERE A COMPLETE WANT OF CONFLICT BETWEEN THE
TWO STATUTES AND THEIR ADMINISTRATION, BUT IT SEEMS PLAIN THAT THE
ALABAMA STATUTE, BOTH BY ITS TERMS AND IN ITS PRACTICAL ADMINISTRATION,
AIDS AND SUPPLEMENTS THE FEDERAL REGULATION AND POLICY.  CONSEQUENTLY
THERE IS NO ROOM FOR ANY INFERENCE THAT CONGRESS, BY ITS ENACTMENT,
SOUGHT TO STAY THE HANDS OF THE STATE IN THE EXERCISE OF A POWER WITH
WHICH THE FEDERAL ACT DOES NOT CONFLICT.  THE BASIC AND IDENTICAL
CONCERN OF BOTH GOVERNMENTS IS TO PROTECT THE CONSUMING PUBLIC FROM
CONTAMINATED BUTTER.  IF THE STATE SEIZES UNFIT PACKING STOCK, THE
FEDERAL AUTHORITIES ARE RELIEVED OF THE NECESSITY OF DETECTING IT AND
OF SEIZING THE RENOVATED PRODUCT WHICH IT CONTAMINATES.  FN3 IN
EXERCISING THE POWERS CONFERRED ON HIM BY THE ACT, THE SECRETARY IS NOT
CONCERNED WITH THE QUALITY OF PACKING STOCK SAVE AS IT IS USED IN
MAKING RENOVATED BUTTER.  SEIZURE OF IT BY THE STATE AT THE SAME TIME
REMOVES ALL NECESSITY AND DUTY OF FEDERAL INSPECTION, SINCE, IN ANY
EVENT, IT WILL NEVER BECOME AN INGREDIENT OF RENOVATED BUTTER. 

THE OPINION, WHILE RECOGNIZING THAT THE DEPARTMENT HAS LONG TAKEN THE
VIEW THAT IT HAS NO POWER TO SEIZE PACKING STOCK BUTTER, DISREGARDS
ADMINISTRATIVE ACTUALITIES IN ASSUMING THAT STATE SEIZURE OF IT WOULD
INVOLVE AN "INTRUSION" INTO THE FEDERAL DOMAIN, WHICH WOULD "HAMPER THE
ADMINISTRATION OF THE FEDERAL ACT."  THE RECORD OF ADMINISTRATION IS
NOT ONE OF BELLIGERENCY AND JURISDICTIONAL JEALOUSY, BUT OF ACTIVE AND
SYMPATHETIC COOPERATION BETWEEN STATE AND FEDERAL AGENCIES IN EFFECTING
A COMMON PURPOSE, PREVENTION OF THE CONSUMPTION OF UNFIT BUTTER,
WHETHER THAT OBJECTIVE IS ACCOMPLISHED BY STATE SEIZURE OF THE PACKING
STOCK OR FEDERAL CONDEMNATION OF THE RENOVATED PRODUCT.  FN4  TO FIND
IN SUCH CIRCUMSTANCES AN INTENT TO RESTRICT STATE POWER, NOT REQUIRED
BY THE WORDS OF THE STATUTE, IS TO CONDEMN A WORKING, HARMONIOUS
FEDERAL-STATE RELATIONSHIP FOR THE SAKE OF A STERILE AND HARMFUL
INSISTENCE ON EXCLUSIVE FEDERAL POWER. 

THE CONTROLLING ELEMENTS IN THIS CASE SEEM IDENTICAL WITH THOSE IN
THE APPLICATION OF THE PURE FOOD AND DRUGS ACT OF 1906, 34 STAT. 768,
WHICH THIS COURT HAS HELD IMPOSES NO RESTRICTION ON STATE ACTION WHICH
SUPPLEMENTS THE FEDERAL ACT AND DOES NOT CONFLICT WITH ITS TERMS OR
PRACTICAL ADMINISTRATION.  IN SUSTAINING LOCAL REGULATIONS REQUIRING
THE LABELS PLACED ON ANIMAL FOODSTUFFS TO DISCLOSE THEIR INGREDIENTS,
IN ADDITION TO THE TRUTHFUL DESCRIPTION OF THE PRODUCT DEMANDED BY THE
FEDERAL ACT, THIS COURT SAID:  "THE REQUIREMENTS, THE ENFORCEMENT OF
WHICH THE BILL SEEKS TO ENJOIN, ARE NOT IN ANY WAY IN CONFLICT WITH THE
PROVISIONS OF THE FEDERAL ACT.  THEY MAY BE SUSTAINED WITHOUT IMPAIRING
IN THE SLIGHTEST DEGREE ITS OPERATION AND EFFECT.  THERE IS NO QUESTION
HERE OF CONFLICTING STANDARDS OR OF OPPOSITION OF STATE TO FEDERAL
AUTHORITY."  SAVAGE V. JONES, SUPRA, 225 U.S. AT 539.  STATE REGULATION
YIELDS ONLY WHEN IT IS IN CONFLICT WITH THE ADMINISTRATION OR TERMS OF
THE PURE FOOD AND DRUGS ACT.  CF. MCDERMOTT V. WISCONSIN, 228 U.S.
115.  THE SAME VIEW HAS BEEN TAKEN IN OTHER CASES WHERE STATE AND
FEDERAL GOVERNMENTS BY CONCURRENT AND NONCONFLICTING CONTROL OVER
SUBJECTS OF COMMERCE WERE SEEKING TO PROTECT THE HEALTH OR SAFETY OF
THE PUBLIC.  CORN PRODUCTS REFINING CO. V. EDDY, 249 U.S. 427; REID V.
COLORADO, 187 U.S. 137; MISSOURI, K. & T. RY. CO. V. HABER, SUPRA, 169
U.S. 613; CF. WHIPPLE V. MARTINSON, 256 U.S. 41; HARTFORD ACCIDENT &
IND. CO. V. ILLINOIS, 298 U.S. 155; KELLY V. WASHINGTON, SUPRA, 302
U.S. 1.  SUCH SHOULD BE OUR CONSTRUCTION OF THE RENOVATED BUTTER ACT. 
IT SEEMS IRONICAL FOR US TO SAY THAT ALTHOUGH STATE SEIZURES OF
PETITIONER'S PACKING STOCK ARE NOT PRECLUDED BY THE JUDICIAL AND
ADMINISTRATIVE  FN5  CONSTRUCTION OF THE PURE FOOD AND DRUGS ACT, WHICH
AUTHORIZES FEDERAL CONFISCATION OF THE FILTHY INGREDIENT, PETITIONER
HAS NEVERTHELESS DISCOVERED AN AVENUE OF ESCAPE BY APPEAL TO THE
RENOVATED BUTTER ACT WHICH DOES NOT AUTHORIZE FEDERAL SEIZURE OF THE
INGREDIENT.    IT IS ONE THING FOR COURTS IN INTERPRETING AN ACT OF
CONGRESS REGULATING MATTERS BEYOND STATE CONTROL TO CONSTRUE ITS
LANGUAGE WITH A VIEW TO CARRYING INTO EFFECT A GENERAL THOUGH
UNEXPRESSED CONGRESSIONAL PURPOSE.  IT IS QUITE ANOTHER TO INFER A
PURPOSE, WHICH CONGRESS HAS NOT EXPRESSED, TO DEPRIVE THE STATES OF
AUTHORITY WHICH OTHERWISE CONSTITUTIONALLY BELONGS TO THEM, OVER A
SUBJECT WHICH CONGRESS HAS NOT UNDERTAKEN TO CONTROL.  DUE REGARD FOR
THE MAINTENANCE OF OUR DUAL SYSTEM OF GOVERNMENT DEMANDS THAT THE
COURTS DO NOT DIMINISH STATE POWER BY EXTRAVAGANT INFERENCES REGARDING
WHAT CONGRESS MIGHT HAVE INTENDED IF IT HAD CONSIDERED THE MATTER, OR
BY REFERENCE TO THEIR OWN CONCEPTIONS OF A POLICY WHICH CONGRESS HAS
NOT EXPRESSED AND IS NOT PLAINLY TO BE INFERRED FROM THE LEGISLATION
WHICH IT HAS ENACTED.  CONSIDERATIONS WHICH LEAD US NOT TO FAVOR REPEAL
OF STATUTES BY IMPLICATION, UNITED STATES V. BORDEN CO., 308 U.S. 188,
198-9; UNITED STATES V. JACKSON, 302 U.S. 628, 631; POSADOS V. NATIONAL
CITY BANK, 296 U.S. 497, 503, 505, SHOULD BE AT LEAST AS PERSUASIVE
WHEN THE QUESTION IS ONE OF THE NULLIFICATION OF STATE POWER BY
CONGRESSIONAL LEGISLATION. 

FN1  A REPORT OF AUGUST 25, 1933, P. 3, BY A MEMBER OF THE STAFF OF
THE MICROANALYTICAL LABORATORY OF THE FOOD AND DRUG ADMINISTRATION
INDICATED THE FOLLOWING CONTENTS IN THREE SAMPLES OF 100 GRAMS EACH
FROM CERTAIN LOTS OF PACKING STOCK SEIZED FROM COMPANIES WHICH
MANUFACTURE RENOVATED BUTTER:  (A) 37 FLY MAGGOTS, 7 RODENT HAIRS, 1
FEATHER, CINDERS AND SAND; (B) 4 FLY MAGGOTS, 1 FLY, 2 ANTS, 1 COW
HAIR, 1 HUMAN HAIR, GRASS AND SAWDUST; (C) 1 FLY MAGGOT, 11 BROWN ANTS,
1 HUMAN HAIR, 1 BEETLE LARVA, 1 BEETLE HEAD. 

FN2  SEE NOTE 3, INFRA. 

FN3  THE ASSISTANT CHIEF OF THE BUREAU OF DAIRY INDUSTRY, IN A LETTER
TO THE SOLICITOR FOR THE DEPARTMENT, JULY 22, 1941, WHICH ACCOMPANIED A
PROPOSED BILL TO GIVE THE DEPARTMENT AUTHORITY TO CONDEMN FILTHY
INGREDIENTS GOING INTO RENOVATED BUTTER, SAID: 

"IT IS AXIOMATIC THAT DESPITE THE PROCESSES THROUGH WHICH BUTTER OR
BUTTER OIL PASS DURING THE COURSE OF MANUFACTURING RENOVATED BUTTER,
CERTAIN SOLUBLE MATERIALS UNFIT FOR HUMAN CONSUMPTION CANNOT BE REMOVED
AND IT IS DIFFICULT IF NOT IMPOSSIBLE TO DETECT THEM IN THE FINISHED
PRODUCT.  FOR EXAMPLE, A LOT OF BUTTER MAY BE INFESTED WITH MAGGOTS AND
SHOULD BE CONDEMNED FOR USE IN THE MANUFACTURE OF RENOVATED BUTTER.  IF
NOT, IN THE MELTING PROCESS FAT FROM THESE MAGGOTS WILL BE MIXED WITH
THE BUTTER FAT AND THE ANIMAL FAT MAY BE DETECTED IN THE FINISHED
PRODUCT ONLY BY CHEMICAL LABORATORY TESTS, IF AT ALL." 

A REPRESENTATIVE OF THE DEPARTMENT, APPEARING AT THE HOUSE COMMITTEE
HEARINGS ON THE AGRICULTURAL APPROPRIATION BILL FOR THE FISCAL YEAR
ENDING JUNE 30, 1913, NOTED ANOTHER DIFFICULTY IN LOCATING CONTAMINATED
RENOVATED BUTTER: 

"BUT IF 500 POUNDS OF ROTTEN PACKING STOCK IS IN A FACTORY, MAYBE
THERE IS 10,000 POUNDS OF OTHER PACKING STOCK THERE; AND YOU CAN
UNDERSTAND HOW IMPOSSIBLE IT IS FOR US TO FOLLOW THROUGH THAT PACKING
STOCK SO AS TO BE ABLE TO IDENTIFY IT WHEN IT COMES OUT OF THE FACTORY
AND IS OFFERED FOR SALE." 

HEARINGS OF THE HOUSE COMMITTEE ON AGRICULTURE ON THE AGRICULTURAL
APPROPRIATION BILL, 62D CONG., 2D SESS., P. 328. 

FN4  THE MEMORANDUM OF THE CHIEF OF THE BUREAU OF DAIRY INDUSTRY TO
THE SOLICITOR OF THE DEPARTMENT OF AGRICULTURE, OCTOBER 4, 1940, STATES
IN PART:  "THE DEVELOPMENT AND PERFECTION DURING THE PAST FEW YEARS OF
NEW METHODS FOR ANALYZING AND EXAMINING BUTTER HAS RESULTED IN
INCREASED REGULATORY ACTIVITY AND ACTION AGAINST FARM-MADE OR 'PACKING
STOCK' BUTTER INTENDED FOR USE IN THE MANUFACTURE OF PROCESS OR
RENOVATED BUTTER.  CERTAIN STATE REGULATORY AGENCIES AND THE FEDERAL
FOOD AND DRUG ADMINISTRATION HAVE BEEN PARTICULARLY ACTIVE. 

"THE BUREAU OF DAIRY INDUSTRY, WHICH IS THE ADMINISTRATIVE AGENCY
DESIGNATED BY THE SECRETARY OF AGRICULTURE TO ENFORCE THE PROCESS OR
RENOVATED BUTTER ACT, IS ENTIRELY SYMPATHETIC WITH THE ACTIVITIES OF
THESE AGENCIES, ALTHOUGH THE APPARENTLY LIMITING PROVISIONS OF SECTION
5 OF THE ACT OF MAY 9, 1902(32 STAT. 196), WITH WHICH THIS BUREAU IS
PRIMARILY CONCERNED, AS CONSTRUED IN OPINIONS OF YOUR OFFICE, HAVE
NECESSARILY GOVERNED AND GUIDED THIS BUREAU IN ITS ADMINISTRATIVE
POLICY IN CARRYING OUT THE PROVISIONS OF THE ACT." 

IN HIS ANNUAL REPORT ON REGULATORY WORK OF THE BUREAU OF DAIRY
INDUSTRY, 1940, THE OFFICER IN CHARGE OF DAIRY PRODUCTS INSPECTION
REPORTED, P. 4:  "IN CONDUCTING THE INSPECTION OF ALL PROCESS OR
RENOVATED BUTTER FACTORIES, THIS OFFICE HAS MAINTAINED CLOSE CONTACT
WITH  ...  LOCAL STATE AND CITY REGULATORY AGENCIES AND OFFICIALS AND
WHENEVER POSSIBLE COOPERATIVE ACTION FOR IMPROVEMENT OF CONDITIONS HAVE
BEEN TAKEN."  ID., 1939, P. 4:  "THE RESULT OF STATE REGULATORY
ACTIVITY IN THE SOUTH HAS BEEN BENEFICIAL IN IMPROVING THE PROCUREMENT
METHODS USED IN GETTING PACKING STOCK BUTTER TO THE FACTORIES.  MORE
FREQUENT PICKUPS HAVE BEEN INAUGURATED AND BOTH ATLANTA AND BIRMINGHAM
FACTORIES HAVE EXPENDED HUNDRED OF DOLLARS IN NEW SPECIALLY MADE CANS
WITH TIGHT FITTING COVERS, AND THE PACKING STOCK RECEIVED IS VERY MUCH
CLEANER."  ID., 1938, P. 2:  "MUCH OF THE CREDIT FOR IMPROVEMENT IN
QUALITY OF PACKING STOCK BUTTER BELONGS TO STATE AND FEDERAL REGULATORY
AGENCIES COOPERATING IN CAMPAIGNS TO IMPROVE PROCUREMENT PRACTICES." 
ID., P. 3:  "IN CONDUCTING THE INSPECTION OF PROCESS OR RENOVATED
BUTTER FACTORIES, THIS OFFICE HAS MAINTAINED CLOSE CONTACT WITH STATE
AND CITY REGULATORY OFFICIALS AND WHEN DEEMED ADVISABLE COOPERATIVE
ACTION FOR IMPROVEMENT OF SANITARY CONDITIONS HAS BEEN TAKEN." 

FN5  A REPORT BY THE OFFICER IN CHARGE OF THE CEREAL AND DAIRY
COMMISSIONER OF FOOD AND DRUGS, ON JANUARY 20, 1942, DISCLOSES THAT
BETWEEN JULY 1, 1933 AND JANUARY 1, 1942, THIRTY-SIX SEIZURES WERE MADE
OF LOTS OF PACKING STOCK BUTTER CONSIGNED TO PROCESS BUTTER PLANTS.  IN
COMMENTING UPON THE EXTENT OF STATE COOPERATION IN SUCH SEIZURES, IT
WAS NOTED THAT IN TWENTY-ONE OF SUCH CASES THE PACKING STOCK WAS
DETAINED BY THE STATE AUTHORITIES PENDING THE FILING BY FEDERAL
OFFICIALS OF A LIBEL FOR CONDEMNATION PROCEEDINGS UNDER THE PURE FOOD
AND DRUGS ACT, 21 U.S.C. SEC. 334.  THESE SEIZURES INCLUDED FOUR LOTS
OF PACKING STOCK TOTALING OVER 5,000 POUNDS SHIPPED TO PETITIONER, AND
DETAINED BY THE ALABAMA AUTHORITIES UNTIL CONDEMNATION PROCEEDINGS WERE
BEGUN IN THE FEDERAL COURT. 

MR. JUSTICE FRANKFURTER, MR. JUSTICE MURPHY, AND MR. JUSTICE BYRNES
JOIN IN THIS OPINION. 

MR. JUSTICE FRANKFURTER: 

I AGREE ENTIRELY WITH THE OPINION OF THE CHIEF JUSTICE.  I SHALL ADD
ONLY A FEW WORDS ON THE GENERAL BEARING OF THE MAJORITY OPINION UPON
THE LEGISLATIVE PROCESS. 

FROM THE VERY BEGINNING OF OUR GOVERNMENT IN 1789, FEDERAL
LEGISLATION LIKE THAT NOW UNDER REVIEW HAS USUALLY NOT ONLY BEEN
SPONSORED BUT ACTUALLY DRAFTED BY THE APPROPRIATE EXECUTIVE AGENCY. 
THIS WAS TRUE OF THE ACT OF AUGUST 10, 1912, 37 STAT. 273, AMENDING THE
RENOVATED BUTTER ACT.  THE DEPARTMENT OF AGRICULTURE NOT ONLY URGED THE
ENACTMENT OF THE LEGISLATION UPON CONGRESS, IT DRAFTED ITS PROVISIONS. 
IF THE DEPARTMENT WANTED CONGRESS TO WITHDRAW FROM THE STATES THEIR
POWER TO CONDEMN UNSANITARY PACKING STOCK AND TO CONFIDE SUCH POWER IN
THE FEDERAL GOVERNMENT, IT COULD EASILY HAVE MADE APPROPRIATE PROVISION
IN THE DRAFT SUBMITTED BY IT TO CONGRESS.  HOWEVER, THE DEPARTMENT DID
NOT DO SO.  IT DID ASK CONGRESS TO MAKE SOME RESTRICTIONS UPON THE
AUTHORITY WHICH HAD BEEN EXERCISED BY THE STATES IN REGULATING THE
MANUFACTURE AND SALE OF BUTTER FOR THE PROTECTION OF THEIR CITIZENS. 
BUT THE RESTRICTIONS DID NOT INCLUDE WITHDRAWAL FROM THE STATES OF THE
POWER TO CONDEMN UNHEALTHFUL PACKING STOCK BUTTER.  THE SPONSORS OF
THIS LEGISLATION, THE EXPERTS OF THE DEPARTMENT OF AGRICULTURE, COULD
HAVE SUBMITTED TO CONGRESS APPROPRIATE LANGUAGE FOR THE ACCOMPLISHMENT
OF THAT RESULT.  THEY DID NOT DO SO.  THE COURT NOW DOES IT FOR THEM
EVEN THOUGH THE DEPARTMENT HAS NO SUCH DESIRE. 

TO REQUIRE THE VARIOUS AGENCIES OF THE GOVERNMENT WHO ARE THE
EFFECTIVE AUTHORS OF LEGISLATION LIKE THAT NOW BEFORE US TO EXPRESS
CLEARLY AND EXPLICITLY THEIR PURPOSE IN DISLODGING CONSTITUTIONAL
POWERS OF STATES - IF SUCH IS THEIR PURPOSE - MAKES FOR CARE IN
DRAFTSMANSHIP AND FOR RESPONSIBILITY IN LEGISLATION.  TO HOLD, AS DO
THE MAJORITY, THAT PARALYSIS OF STATE POWER IS SOMEHOW TO BE FOUND IN
THE VAGUE IMPLICATIONS OF THE FEDERAL RENOVATED BUTTER ENACTMENTS, IS
TO ENCOURAGE SLIPSHODNESS IN DRAFTSMANSHIP AND IRRESPONSIBILITY IN
LEGISLATION. 

THE MAJORITY OPINION POINTS OUT THAT THE SUCCESSIVE SOLICITORS OF THE
DEPARTMENT OF AGRICULTURE HAVE UNIFORMLY BEEN OF THE OPINION THAT THE
DEPARTMENT LACKS THE POWER TO CONDEMN OR DESTROY UNWHOLESOME PACKING
STOCK BUTTER.  IF THE DEPARTMENT WERE NOT CONTENT TO HAVE THE STATES
CONTINUE TO EXERCISE THAT POWER, IT WOULD HAVE GONE TO CONGRESS.  IN
THESE CIRCUMSTANCES IT IS STRANGE TO FIND IN THIS LEGISLATION A DENIAL
TO THE STATES OF POWERS WHICH THE DEPARTMENT HAS DISCLAIMED AND TO THE
EXERCISE OF WHICH BY THE STATES IT HAS NEVER OBJECTED. 

THE RESULT OF THIS DECISION IS TO DENY ALABAMA THE POWER TO PROTECT
THE HEALTH OF ITS CITIZENS WITHOUT REPLACING SUCH PROTECTION BY THAT OF
THE FEDERAL GOVERNMENT.  THE CHIEF JUSTICE DOES WELL TO CALL ATTENTION
TO THE FACT THAT SUCH A CONSTRUCTION OF THE RENOVATED BUTTER ACT
GRATUITOUSLY DESTROYS THE HARMONIOUS COOPERATION BETWEEN THE NATION AND
THE STATES IN SAFEGUARDING THE HEALTH OF OUR PEOPLE.  IF EVER THERE WAS
AN INTRUSION BY THIS COURT INTO A FIELD THAT BELONGS TO CONGRESS, AND
WHICH IT HAS SEEN FIT NOT TO ENTER, THIS IS IT.  AND WHAT IS WORSE, THE
DECISION IS PURELY DESTRUCTIVE LEGISLATION - THE COURT TAKES POWER AWAY
FROM THE STATES BUT IS, OF COURSE, UNABLE TO TRANSFER IT TO THE FEDERAL
GOVERNMENT. 
..END :














HELVERING V. LIMESTONE CO., 315 U.S. 179 


NO. 328.  ARGUED JANUARY 15, 1942.  - DECIDED FEBRUARY 2, 1942.  - 119
F.2D 819, AFFIRMED. 


1.  PURSUANT TO A PLAN OF ITS CREDITORS, AN INSOLVENT CORPORATION WAS
ADJUDGED BANKRUPT; ITS ASSETS WERE SOLD BY THE BANKRUPTCY TRUSTEE, BID
IN BY THE CREDITORS' COMMITTEE, AND ACQUIRED BY A NEW CORPORATION IN
EXCHANGE FOR ITS STOCK, ALL OF WHICH WAS ISSUED TO CREDITORS OF THE OLD
CORPORATION IN SATISFACTION OF THEIR CLAIMS, THE OLD STOCKHOLDERS BEING
ELIMINATED.  NON-ASSENTING MINORITY CREDITORS WERE PAID IN CASH. 
OPERATIONS WERE NOT INTERRUPTED BY THE REORGANIZATION AND WERE CARRIED
ON SUBSEQUENTLY BY SUBSTANTIALLY THE SAME PERSONS AS BEFORE.  HELD: 

(1)  A "REORGANIZATION" WITHIN THE MEANING OF SEC. 112(I)(1) OF THE
REVENUE ACT OF 1928; SO THAT, IN COMPUTING DEPRECIATION AND DEPLETION
FOR THE YEAR 1934, THE ASSETS OF THE NEW CORPORATION, SO ACQUIRED, HAD
THE SAME BASIS THAT THEY HAD WHEN OWNED BY THE OLD CORPORATION.  PP.
181, 183. 

(2)  THE CONTINUITY OF INTEREST TEST WAS SATISFIED SINCE THE
CREDITORS HAD EFFECTIVE COMMAND OVER THE DISPOSITION OF THE PROPERTY
FROM THE TIME WHEN THEY TOOK STEPS TO ENFORCE THEIR DEMANDS AGAINST
THEIR INSOLVENT DEBTOR BY THE INSTITUTION OF BANKRUPTCY PROCEEDINGS. 
AT THAT TIME THEY STEPPED INTO THE SHOES OF THE OLD STOCKHOLDERS.  P.
183. 

(3)  THE TRANSACTION HERE MET THE STATUTORY STANDARD OF A
"REORGANIZATION" EVEN THOUGH AT THE TIME OF ACQUISITION BY THE NEW
CORPORATION THE PROPERTY BELONGED TO THE COMMITTEE AND NOT TO THE OLD
CORPORATION, SINCE THE ACQUISITION BY THE COMMITTEE WAS AN INTEGRATED
PART OF A SINGLE REORGANIZATION PLAN.  P. 184. 

2.  THE FULL PRIORITY RULE OF NORTHERN PACIFIC R. CO. V. BOYD, 228
U.S. 482, APPLIES TO PROCEEDINGS IN BANKRUPTCY AS WELL AS TO EQUITY
RECEIVERSHIPS.  P. 183. 

3.  THE FULL PRIORITY RULE GIVES CREDITORS, WHETHER SECURED OR
UNSECURED, THE RIGHT TO EXCLUDE STOCKHOLDERS ENTIRELY FROM A
REORGANIZATION PLAN WHEN THE DEBTOR IS INSOLVENT.  P. 183. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. ALABAMA ASPHALTIC
LIMESTONE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 314 U.S. 598, TO REVIEW A JUDGMENT AFFIRMING A DECISION
OF THE BOARD OF TAX APPEALS, 41 B.T.A. 324, WHICH OVERRULED A
DEFICIENCY ASSESSMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, IN 1931, ACQUIRED ALL THE ASSETS OF ALABAMA ROCK ASPHALT,
INC., PURSUANT TO A REORGANIZATION PLAN CONSUMMATED SUMMATED WITH THE
AID OF THE BANKRUPTCY COURT.  IN COMPUTING ITS DEPRECIATION AND
DEPLETION ALLOWANCES FOR THE YEAR 1934, RESPONDENT TREATED ITS ASSETS
AS HAVING THE SAME BASIS WHICH THEY HAD IN THE HANDS OF THE OLD
CORPORATION.  THE COMMISSIONER DETERMINED A DEFICIENCY, COMPUTED ON THE
PRICE PAID AT THE BANKRUPTCY SALE.  FN1  THE BOARD OF TAX APPEALS
REJECTED THE POSITION OF THE COMMISSIONER.  41 B.T.A. 324.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  119 F.2D 819.  WE GRANTED THE PETITION FOR
CERTIORARI BECAUSE OF THE CONFLICT BETWEEN THAT DECISION  FN2  AND
COMMISSIONER V. PALM SPRINGS HOLDING CORP., 119 F.2D 846, DECIDED BY
THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT, AND HELVERING V.
NEW PRESIDENT CORP., 122 F.2D 92, DECIDED BY THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

THE ANSWER TO THE QUESTION  FN3  TURNS ON THE MEANING OF THAT PART OF
SEC. 112(I)(1) OF THE REVENUE ACT OF 1928(45 STAT. 791, 818) WHICH
PROVIDES:  "THE TERM 'REORGANIZATION' MEANS (A) A MERGER OR
CONSOLIDATION (INCLUDING THE ACQUISITION BY ONE CORPORATION OF  ...
SUBSTANTIALLY ALL THE PROPERTIES OF ANOTHER CORPORATION.  ..." 

THE ESSENTIAL FACTS CAN BE STATED BRIEFLY.  THE OLD CORPORATION WAS A
SUBSIDIARY OF A CORPORATION WHICH WAS IN RECEIVERSHIP IN 1929. 
STOCKHOLDERS OF THE PARENT HAD FINANCED THE OLD CORPORATION TAKING
UNSECURED NOTES FOR THEIR ADVANCES.  MATURITY OF THE NOTES WAS
APPROACHING AND NOT ALL OF THE NOTEHOLDERS WOULD AGREE TO TAKE STOCK
FOR THEIR CLAIMS.  ACCORDINGLY, A CREDITORS' COMMITTEE WAS FORMED, LATE
IN 1929, AND A PLAN OF REORGANIZATION WAS PROPOSED TO WHICH ALL THE
NOTEHOLDERS, EXCEPT TWO, ASSENTED.  THE PLAN PROVIDED THAT A NEW
CORPORATION WOULD BE FORMED WHICH WOULD ACQUIRE ALL THE ASSETS OF THE
OLD CORPORATION.  THE STOCK OF THE NEW CORPORATION, PREFERRED AND
COMMON, WOULD BE ISSUED TO THE CREDITORS IN SATISFACTION OF THEIR
CLAIMS.  PURSUANT TO THE PLAN, INVOLUNTARY BANKRUPTCY PROCEEDINGS WERE
INSTITUTED IN 1930.  THE APPRAISED VALUE OF THE BANKRUPT CORPORATION'S
ASSETS WAS ABOUT $155,000.  ITS OBLIGATIONS WERE ABOUT $838,000, THE
UNSECURED NOTES WITH ACCRUED INTEREST AGGREGATING SOMEWHAT OVER
$793,000.  THE BANKRUPTCY TRUSTEE OFFERED THE ASSETS FOR SALE AT PUBLIC
AUCTION.  THEY WERE BID IN BY THE CREDITORS' COMMITTEE FOR $150,000. 
THE PRICE WAS PAID BY $15,000 IN CASH, BY AGREEMENTS OF CREDITORS TO
ACCEPT STOCK OF A NEW CORPORATION IN FULL DISCHARGE OF THEIR CLAIMS,
AND BY AN OFFER OF THE COMMITTEE TO MEET THE VARIOUS COSTS OF
ADMINISTRATION, ETC.  THEREAFTER, RESPONDENT WAS FORMED AND ACQUIRED
ALL THE ASSETS OF THE BANKRUPT CORPORATION.  IT DOES NOT APPEAR WHETHER
THE ACQUISITION WAS DIRECTLY FROM THE OLD CORPORATION ON ASSIGNMENT OF
THE BID OR FROM THE COMMITTEE.  PURSUANT TO THE PLAN, RESPONDENT ISSUED
ITS STOCK TO THE CREDITORS OF THE OLD CORPORATION - OVER 95% TO THE
NOTEHOLDERS AND THE BALANCE TO SMALL CREDITORS.  NONASSENTING CREDITORS
WERE PAID IN CASH.  OPERATIONS WERE NOT INTERRUPTED BY THE
REORGANIZATION AND WERE CARRIED ON SUBSEQUENTLY BY SUBSTANTIALLY THE
SAME PERSONS AS BEFORE. 

FROM THE PINELLAS CASE (287 U.S. 462) TO THE LETULLE CASE (308 U.S.
415) IT HAS BEEN RECOGNIZED THAT A TRANSACTION MAY NOT QUALIFY AS A
"REORGANIZATION" UNDER THE VARIOUS REVENUE ACTS THOUGH THE LITERAL
LANGUAGE OF THE STATUTE IS SATISFIED.  SEE PAUL, STUDIES IN FEDERAL
TAXATION (3D SERIES), PP. 91 ET SEQ. THE PINELLAS CASE INTRODUCED THE
CONTINUITY OF INTEREST THEORY TO ELIMINATE THOSE TRANSACTIONS WHICH HAD
"NO REAL SEMBLANCE TO A MERGER OR CONSOLIDATION" (287 U.S. P. 470) AND
TO AVOID A CONSTRUCTION WHICH "WOULD MAKE EVASION OF TAXATION VERY
EASY."  ID. P. 469.  IN THAT CASE, THE TRANSFEROR RECEIVED IN EXCHANGE
FOR ITS PROPERTY CASH AND SHORT TERM NOTES.  THIS COURT SAID (ID. P.
470):  "CERTAINLY, WE THINK THAT TO BE WITHIN THE EXEMPTION THE SELLER
MUST ACQUIRE AN INTEREST IN THE AFFAIRS OF THE PURCHASING COMPANY MORE
DEFINITE THAN THAT INCIDENT TO OWNERSHIP OF ITS SHORT-TERM PURCHASE
MONEY NOTES."  IN THE LETULLE CASE, WE HELD THAT THE TERM OF THE
OBLIGATION RECEIVED BY THE SELLER WAS IMMATERIAL.  "WHERE THE
CONSIDERATION IS WHOLLY IN THE TRANSFEREE'S BONDS, OR PART CASH AND
PART SUCH BONDS, WE THINK IT CANNOT BE SAID THAT THE TRANSFEROR RETAINS
ANY PROPRIETARY INTEREST IN THE ENTERPRISE."  308 U.S. PP. 420-421.  ON
THE BASIS OF THE CONTINUITY OF INTEREST THEORY AS EXPLAINED IN THE
LETULLE CASE, IT IS NOW EARNESTLY CONTENDED THAT A SUBSTANTIAL
OWNERSHIP INTEREST IN THE TRANSFEREE COMPANY MUST BE RETAINED BY THE
HOLDERS OF THE OWNERSHIP INTEREST IN THE TRANSFEROR.  THAT VIEW HAS
BEEN FOLLOWED BY SOME COURTS.  COMMISSIONER V. PALM SPRINGS HOLDING
CORP., SUPRA; HELVERING V. NEW PRESIDENT CORP., SUPRA.  UNDER THAT
TEST, THERE WAS "NO REORGANIZATION" IN THIS CASE, SINCE THE OLD
STOCKHOLDERS WERE ELIMINATED BY THE PLAN, NO PORTION WHATEVER OF THEIR
PROPRIETARY INTEREST BEING PRESERVED FOR THEM IN THE NEW CORPORATION. 
AND IT IS CLEAR THAT THE FACT THAT THE CREDITORS WERE FOR THE MOST PART
STOCKHOLDERS OF THE PARENT COMPANY DOES NOT BRIDGE THE GAP.  THE EQUITY
INTEREST IN THE PARENT IS ONE STEP REMOVED FROM THE EQUITY INTEREST IN
THE SUBSIDIARY.  IN ANY EVENT, THE STOCKHOLDERS OF THE PARENT WERE NOT
GRANTED PARTICIPATION IN THE PLAN QUA STOCKHOLDERS. 

WE CONCLUDE, HOWEVER, THAT IT IS IMMATERIAL THAT THE TRANSFER SHIFTED
THE OWNERSHIP OF THE EQUITY IN THE PROPERTY FROM THE STOCKHOLDERS TO
THE CREDITORS OF THE OLD CORPORATION.  PLAINLY, THE OLD CONTINUITY OF
INTEREST WAS BROKEN.  TECHNICALLY THAT DID NOT OCCUR IN THIS PROCEEDING
UNTIL THE JUDICIAL SALE TOOK PLACE.  FOR PRACTICAL PURPOSES, HOWEVER,
IT TOOK PLACE NOT LATER THAN THE TIME WHEN THE CREDITORS TOOK STEPS TO
ENFORCE THEIR DEMANDS AGAINST THEIR INSOLVENT DEBTOR.  IN THIS CASE,
THAT WAS THE DATE OF THE INSTITUTION OF BANKRUPTCY PROCEEDINGS.  FROM
THAT TIME ON, THEY HAD EFFECTIVE COMMAND OVER THE DISPOSITION OF THE
PROPERTY.  THE FULL PRIORITY RULE OF NORTHERN PACIFIC RY. CO. V. BOYD,
228 U.S. 482, APPLIES TO PROCEEDINGS IN BANKRUPTCY AS WELL AS TO EQUITY
RECEIVERSHIPS.  CASE V. LOS ANGELES LUMBER PRODUCTS CO., 308 U.S. 106. 
IT GIVES CREDITORS, WHETHER SECURED OR UNSECURED, THE RIGHT TO EXCLUDE
STOCKHOLDERS ENTIRELY FROM THE REORGANIZATION PLAN WHEN THE DEBTOR IS
INSOLVENT.  SEE IN RE 620 CHURCH ST. BLDG. CORP., 299 U.S. 24.  WHEN
THE EQUITY OWNERS ARE EXCLUDED AND THE OLD CREDITORS BECOME THE
STOCKHOLDERS OF THE NEW CORPORATION, IT CONFORMS TO REALITIES TO DATE
THEIR EQUITY OWNERSHIP FROM THE TIME WHEN THEY INVOKED THE PROCESSES OF
THE LAW TO ENFORCE THEIR RIGHTS OF FULL PRIORITY.  AT THAT TIME THEY
STEPPED INTO THE SHOES OF THE OLD STOCKHOLDERS.  THE SALE "DID NOTHING
BUT RECOGNIZE OFFICIALLY WHAT HAD BEFORE BEEN TRUE IN FACT."  HELVERING
V. NEW HAVEN & S.L.R. CO., 121 F.2D 985, 987. 

THAT CONCLUSION INVOLVES NO CONFLICT WITH THE PRINCIPLE OF THE
LETULLE CASE.  A BONDHOLDER INTEREST IN A SOLVENT COMPANY PLAINLY IS
NOT THE EQUIVALENT OF A PROPRIETARY INTEREST, EVEN THOUGH UPON DEFAULT
THE BONDHOLDERS COULD RETAKE THE PROPERTY TRANSFERRED.  THE MERE
POSSIBILITY OF A PROPRIETARY INTEREST IS, OF COURSE, NOT ITS
EQUIVALENT.  BUT THE DETERMINATIVE AND CONTROLLING FACTORS OF THE
DEBTOR'S INSOLVENCY AND AN EFFECTIVE COMMAND BY THE CREDITORS OVER THE
PROPERTY WERE ABSENT IN THE LETULLE CASE. 

NOR ARE THERE ANY OTHER CONSIDERATIONS WHICH PREVENT THIS TRANSACTION
FROM QUALIFYING AS A "REORGANIZATION" WITHIN THE MEANING OF THE ACT. 
THE PINELLAS CASE MAKES PLAIN THAT "MERGER" AND "CONSOLIDATION" AS USED
IN THE ACT INCLUDES TRANSACTIONS WHICH "ARE BEYOND THE ORDINARY AND
COMMONLY ACCEPTED MEANING OF THOSE WORDS."  287 U.S. P. 470. 
INSOLVENCY REORGANIZATIONS ARE WITHIN THE FAMILY OF FINANCIAL
READJUSTMENTS EMBRACED IN THOSE TERMS AS USED IN THIS PARTICULAR
STATUTE.  SOME CONTENTION, HOWEVER, IS MADE THAT THIS TRANSACTION DID
NOT MEET THE STATUTORY STANDARD BECAUSE THE PROPERTIES ACQUIRED BY THE
NEW CORPORATION BELONGED AT THAT TIME TO THE COMMITTEE AND NOT TO THE
OLD CORPORATION.  THAT IS TRUE.  YET, THE SEPARATE STEPS WERE
INTEGRATED PARTS OF A SINGLE SCHEME.  TRANSITORY PHASES OF AN
ARRANGEMENT FREQUENTLY ARE DISREGARDED UNDER THESE SECTIONS OF THE
REVENUE ACTS WHERE THEY ADD NOTHING OF SUBSTANCE TO THE COMPLETED
AFFAIR.  GREGORY V. HELVERING, 293 U.S. 465; HELVERING V. BASHFORD, 302
U.S. 454.  HERE THEY WERE NO MORE THAN INTERMEDIATE PROCEDURAL DEVICES
UTILIZED TO ENABLE THE NEW CORPORATION TO ACQUIRE ALL THE ASSETS OF THE
OLD ONE PURSUANT TO A SINGLE REORGANIZATION PLAN.  AFFIRMED. 

FN1  PETITIONER NOW TAKES THE POSITION THAT THE NEW BASIS SHOULD BE
MEASURED BY THE MARKET VALUE OF THE ASSETS RATHER THAN THE BID PRICE. 
SEE BONDHOLDERS COMMITTEE V. COMMISSIONER, POST, P. 189. 

FN2  AND SEE COMMISSIONER V. KITSELMAN, 89 F.2D 458, AND COMMISSIONER
V. NEWBERRY LUMBER & CHEMICAL CO., 94 F.2D 447, WHICH ARE IN ACCORD
WITH THE DECISION BELOW. 

FN3  IF THERE WAS A "REORGANIZATION," THE RESPONDENT WAS ENTITLED TO
USE THE ASSET BASIS OF THE OLD CORPORATION AS PROVIDED IN SEC.
113(A)(7). 

MR. JUSTICE ROBERTS DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :




PALM SPRINGS CORP. V. COMM'R, 315 U.S. 185 


NO. 503.  ARGUED JANUARY 15, 1942.  - DECIDED FEBRUARY 2, 1942.  - 119
F.2D 846, REVERSED. 


PURSUANT TO A PLAN MADE BY INDENTURE BONDHOLDERS OF AN INSOLVENT
CORPORATION, A NEW CORPORATION WAS FORMED, WHICH ACQUIRED MORE THAN ONE
HALF OF THE BOND ISSUE IN EXCHANGE FOR SHARES OF ITS STOCK ISSUED TO
BONDHOLDER CREDITORS, BUT NONE OF WHICH WAS ISSUED TO ANY PRESENT OR
FORMER STOCKHOLDER OF THE OLD CORPORATION FOR ANY RIGHT OF HIS QUA
STOCKHOLDER; AND THE PROPERTIES OF THE OLD CORPORATION WERE BOUGHT IN
AND ACQUIRED BY THE NEW CORPORATION AT TRUSTEE'S FORECLOSURE SALE. 
HELD, A "REORGANIZATION" WITHIN THE MEANING OF SEC. 112(I)(1)(A) OF THE
REVENUE ACT OF 1932.  HELVERING V. ALABAMA ASPHALTIC LIMESTONE CO.,
ANTE, P. 179.  P. 188. 

PALM SPRINGS HOLDING CORPORATION V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 314 U.S. 598, TO REVIEW A JUDGMENT SUSTAINING A
DEFICIENCY ASSESSMENT WHICH HAD BEEN SUSTAINED IN PART BY THE BOARD OF
TAX APPEALS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A COMPANION CASE TO HELVERING V. ALABAMA ASPHALTIC
LIMESTONE CO., ANTE, P. 179.  THIS, TOO, WAS AN INSOLVENCY
REORGANIZATION, THOUGH A DIFFERENT PROCEDURE WAS EMPLOYED TO CONSUMMATE
IT.  THE OLD CORPORATION HAD OUTSTANDING ABOUT $300,000 FACE AMOUNT OF
FIRST MORTGAGE BONDS, SECURED BY A LIEN ON ITS REALTY.  THE PROPERTY,
WHICH WAS AN HOTEL, WAS LEASED TO AN OPERATING COMPANY.  IN 1931, AS A
RESULT OF TRANSACTIONS NOT RELEVANT HERE, ONE PINNEY BECAME THE SOLE
STOCKHOLDER OF THE OLD CORPORATION AND OF THE OPERATING COMPANY.  THE
FURNITURE AND FIXTURES IN THE HOTEL WERE OWNED BY THE OPERATING
COMPANY.  THEY WERE COVERED BY A CHATTEL MORTGAGE WHICH, TOGETHER WITH
THE LEASE ON THE HOTEL, WERE ASSIGNED AND PLEDGED AS PART OF THE
SECURITY FOR THE BOND ISSUE.  IN 1931, BOTH COMPANIES WERE IN FINANCIAL
DIFFICULTIES AND INSOLVENT, AT LEAST IN THE EQUITY SENSE.  A
BONDHOLDERS' COMMITTEE WAS FORMED, WHICH RECEIVED DEPOSITS OF MORE THAN
HALF OF THE FACE AMOUNT OF THE BONDS.  PETITIONER WAS FORMED IN 1932. 
PURSUANT TO THE PLAN OF REORGANIZATION, SIX SHARES OF PETITIONER'S
PREFERRED STOCK AND FOUR SHARES OF ITS COMMON STOCK WERE ISSUED TO
ASSENTING BONDHOLDERS FOR EACH $1000 BOND.  IN ADDITION, ALL OF
PETITIONER'S REMAINING COMMON STOCK WAS ISSUED TO ONE LACOE, IN RETURN
FOR HIS AGREEMENT TO PAY THE COSTS OF INCORPORATING PETITIONER, UP TO
$1000, AND FOR HIS AGREEMENT TO LEND MONEY TO PETITIONER.  BEFORE THE
ACTUAL ISSUANCE OF ANY OF THE SHARES, LACOE AGREED TO TRANSFER 1,000
SHARES OF THE COMMON STOCK TO PINNEY, THE SOLE STOCKHOLDER OF THE TWO
COMPANIES, FOR HIS SERVICES IN THE REORGANIZATION AND AS AN INDUCEMENT
TO HIM TO CONTINUE AS MANAGER OF THE HOTEL.  NONE OF THE STOCK OF
PETITIONER, HOWEVER, WAS ISSUED TO ANY STOCKHOLDER OR FORMER
STOCKHOLDER OF EITHER OF THE COMPANIES FOR ANY RIGHTS ANY OF THEM HAD
AS STOCKHOLDERS.  IN MAY, 1932, THE INDENTURE TRUSTEE DECLARED THE
PRINCIPAL OF THE BONDS DUE AND PAYABLE.  PURSUANT TO THE TERMS OF THE
INDENTURE, THE TRUSTEE SOLD ALL OF THE PROPERTIES OF THE OLD
CORPORATION, INCLUDING THE LEASE AND CHATTEL MORTGAGE, TO PETITIONER,
THE HIGHEST BIDDER.  THE BID PRICE WAS $61,800.  IT WAS SATISFIED BY
THE PAYMENT OF ABOUT $18,700 IN CASH AND BY THE DELIVERY TO THE TRUSTEE
OF BONDS OF A FACE AMOUNT OF $292,000 FOR THE BALANCE.  FORECLOSURE
PROCEEDINGS AGAINST THE OLD CORPORATION AND THE OPERATING COMPANY WERE
THEN INSTITUTED.  AT THE FORECLOSURE SALE, THE FURNITURE AND FIXTURES,
COMPRISING ALL OF THE PROPERTY OF THE OPERATING COMPANY, WERE BOUGHT IN
BY PETITIONER. 

THE COMMISSIONER, IN DETERMINING A DEFICIENCY IN PETITIONER'S INCOME
AND EXCESS PROFITS TAX FOR THE FISCAL YEAR ENDED MAY 31, 1936,
DISALLOWED DEPRECIATION DEDUCTIONS ON BOTH THE REALTY AND PERSONAL
PROPERTY ON THE BASIS OF COST TO THE OLD CORPORATION AND OPERATING
COMPANY.  FN1  HE USED AS THE BASIS THE COST OF THE ASSETS TO
PETITIONER PLUS THE COST OF ADDITIONS.  THE BOARD OF TAX APPEALS
SUSTAINED THE COMMISSIONER'S DETERMINATION WITH RESPECT TO THE PERSONAL
PROPERTY BUT REJECTED IT WITH RESPECT TO THE REALTY.  THE CIRCUIT COURT
OF APPEALS SUSTAINED THE COMMISSIONER ON BOTH POINTS.  119 F.2D 846. 

THOUGH THE PETITION FOR CERTIORARI RAISED THE QUESTION, PETITIONER
NOW CONCEDES THAT THE ACQUISITION OF THE FURNITURE AND FIXTURES FROM
THE OPERATING COMPANY WAS NOT A "REORGANIZATION" WITHIN THE MEANING OF
SEC. 112(I)(1)(A) OF THE REVENUE ACT OF 1932.  SO WE DO NOT REACH THAT
ISSUE.  AS RESPECTS THE ASSETS ACQUIRED FROM THE OLD CORPORATION, WE
THINK THERE WAS A "REORGANIZATION" WITHIN THE MEANING OF SEC.
112(I)(1)(A) OF THE 1932 ACT.  THAT PROVISION IS THE SAME IN THE 1932
ACT AS IN THE 1928 ACT, WHICH WAS INVOLVED IN HELVERING V. ALABAMA
ASPHALTIC LIMESTONE CO., SUPRA.  THAT CASE IS DETERMINATIVE OF THIS
CONTROVERSY.  THE TRANSACTION FITS THE LITERAL LANGUAGE OF THE
STATUTE.  THE NEW CORPORATION ACQUIRED THE ASSETS DIRECTLY AT THE
TRUSTEE'S AND THE FORECLOSURE SALES.  THE LEGAL PROCEDURE EMPLOYED BY
THE CREDITORS IS NOT MATERIAL.  THE CRITICAL FACTS ARE THAT THE OLD
CORPORATION WAS INSOLVENT AND THAT ITS CREDITORS TOOK STEPS TO OBTAIN
EFFECTIVE COMMAND OVER ITS PROPERTY.  FOR THE REASONS STATED IN
HELVERING V. ALABAMA ASPHALTIC LIMESTONE CO., SUPRA, THE CREDITORS AT
THAT TIME ACQUIRED THE EQUIVALENT OF THE PROPRIETARY INTEREST OF THE
OLD EQUITY OWNER.  ACCORDINGLY, THE CONTINUITY OF INTEREST TEST IS
SATISFIED.  REVERSED. 

FN1  SEC. 113(A)(7) OF THE 1932 ACT (47 STAT. 169, 198) PROVIDES IN
PART: 

"(A)  BASIS (UNADJUSTED) OF PROPERTY.  - THE BASIS OF PROPERTY SHALL
BE THE COST OF SUCH PROPERTY; EXCEPT THAT - 

     .         .     .         .         . 

"(7)  TRANSFERS TO CORPORATION WHERE CONTROL OF PROPERTY REMAINS IN
SAME PERSONS.  - IF THE PROPERTY WAS ACQUIRED AFTER DECEMBER 31, 1917,
BY A CORPORATION IN CONNECTION WITH A REORGANIZATION, AND IMMEDIATELY
AFTER THE TRANSFER AN INTEREST OR CONTROL IN SUCH PROPERTY OF 50 PER
CENTUM OR MORE REMAINED IN THE SAME PERSONS OR ANY OF THEM, THEN THE
BASIS SHALL BE THE SAME AS IT WOULD BE IN THE HANDS OF THE TRANSFEROR,
INCREASED IN THE AMOUNT OF GAIN OR DECREASED IN THE AMOUNT OF LOSS
RECOGNIZED TO THE TRANSFEROR UPON SUCH TRANSFER UNDER THE LAW
APPLICABLE TO THE YEAR IN WHICH THE TRANSFER WAS MADE."  THAT PROVISION
IS APPLICABLE HERE.  SEE, SEC. 114(A), SEC. 113(B), SEC. 113(A) OF THE
REVENUE ACT OF 1934, 48 STAT. 680.  THE PROPERTY HERE INVOLVED WAS
ACQUIRED AFTER FEBRUARY 28, 1913, IN A TAXABLE YEAR PRIOR TO JANUARY 1,
1934, AS REQUIRED BY SEC. 113(A)(12).  RESPONDENT ARGUES THAT THIS
TRANSACTION WAS NOT A "REORGANIZATION" WITHIN THE MEANING OF SEC.
113(A)(7).  AND HE POINTS OUT THAT "CONTROL" WAS NOT IN THE
PARTICIPATING CREDITORS SINCE THE MAJORITY OF THE NEW COMMON STOCK HAD
BEEN DISTRIBUTED, FOR A CONSIDERATION OTHER THAN AN EXCHANGE OF BONDS,
TO LACOE AND PINNEY.  BUT HE DOES NOT CONTEND THAT, ASSUMING THERE WAS
A "REORGANIZATION," AN "INTEREST" IN THE PROPERTY OF 50 PER CENT OR
MORE DID NOT REMAIN IN THE SAME PERSONS (THE BONDHOLDERS) IMMEDIATELY
AFTER THE TRANSFER. 

MR. JUSTICE ROBERTS DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :












BONDHOLDERS COMMITTEE V. COMM'R, 315 U.S. 189 


NO. 128.  ARGUED JANUARY 15, 1942.  - DECIDED FEBRUARY 2, 1942.  - 118
F.2D 511, AFFIRMED. 


1.  WHERE PROPERTY FORMERLY OWNED BY AN INSOLVENT CORPORATION, SUBJECT
TO A DEED OF TRUST SECURING BONDS, BUT WHICH IT HAS CONVEYED TO
ANOTHER, IS ACQUIRED THROUGH ACTION OF ITS BONDHOLDERS BY A NEWLY
FORMED CORPORATION, PARTLY THROUGH FORECLOSURE OF THE MORTGAGE AND
PARTLY BY PURCHASE FOR CASH FROM OTHERS TO WHOM THE LEGAL TITLE HAS
PASSED BY MESNE CONVEYANCES, THERE IS NO "REORGANIZATION" WITHIN THE
MEANING OF SEC. 112(I)(1)(A) AND (B) OF THE REVENUE ACT OF 1932, AS
BETWEEN THE OLD AND THE NEW CORPORATIONS - ALTHOUGH, PURSUANT TO THE
PLAN, ALL OF THE STOCK OF THE NEW CORPORATION IS ISSUED TO THE
BONDHOLDERS OF THE OLD - SINCE THE PROPERTY HAD CEASED TO BE PROPERTY
OF THE OLD CORPORATION.  P. 192. 

2.  SECTION 113(A)(7) OF THE REVENUE ACT OF 1932 AUTHORIZES A CARRY
OVER OF THE BASIS OF THE PROPERTIES IN THE HANDS OF THE TRANSFEROR, NOT
THEIR BASIS IN THE HANDS OF ONE WHO MAY HAVE OCCUPIED AN EARLIER
POSITION IN THE CHAIN OF OWNERSHIP.  P. 192. 

3.  THE REORGANIZATION PROVISIONS HERE IN QUESTION COVER ONLY
INTERCORPORATE TRANSACTIONS.  P. 193. 

4.  SECTION 112(B)(5) OF THE REVENUE ACT, SUPRA, INCLUDES TRANSFERS
BY INDIVIDUALS, BUT REQUIRES THAT THE TRANSFEROR REMAIN IN CONTROL, IT
BEING INAPPLICABLE WHERE THE TRANSFEROR IS BOUGHT OUT FOR CASH.  P.
193. 

5.  THE COST OF ASSETS BID IN BY A MORTGAGE CREDITOR ON FORECLOSURE
IS TO BE DETERMINED BY THE FAIR MARKET VALUE OF THE PROPERTY.  P. 193. 

BONDHOLDERS COMMITTEE, MARLBOROUGH INVESTMENT CO., FIRST MORTGAGE
BONDS, V. COMMISSIONER OF INTERNAL REVENUE.* 

*TOGETHER WITH NO. 129, MARLBOROUGH HOUSE, INC. V. COMMISSIONER OF
INTERNAL REVENUE, ALSO ON WRIT OF CERTIORARI, 314 U.S. 590, TO THE
CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 314 U.S. 590, TO REVIEW JUDGMENTS WHICH REVERSED
DECISIONS OF THE BOARD OF TAX APPEALS, 40 B.T.A. 882, OVERRULING
DEFICIENCY ASSESSMENTS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE PRIMARY QUESTION INVOLVED IN THESE CASES IS WHETHER THE
TRANSACTION IN QUESTION QUALIFIED AS A "REORGANIZATION" UNDER THAT
PORTION OF SEC. 112(I)(1) OF THE REVENUE ACT OF 1932(47 STAT. 169, 196)
WHICH PROVIDES:  "THE TERM 'REORGANIZATION' MEANS (A) A MERGER OR
CONSOLIDATION (INCLUDING THE ACQUISITION BY ONE CORPORATION OF  ...
SUBSTANTIALLY ALL THE PROPERTIES OF ANOTHER CORPORATION).  ..." 

IN 1927, THE MARLBOROUGH INVESTMENT CO. ISSUED ITS BONDS IN THE
PRINCIPAL AMOUNT OF $500,000.  THEY WERE SECURED BY ITS APARTMENT
BUILDING IN SEATTLE AND THE PERSONAL PROPERTY THEREIN.  THERE WAS A
DEFAULT IN MAY, 1932.  A BONDHOLDERS' COMMITTEE WAS FORMED AND THERE
WERE DEPOSITED WITH IT MORE THAN 97% OF THE TOTAL OF OVER $450,000 FACE
AMOUNT OF THE BONDS THEN OUTSTANDING.  IN VIEW OF HELVERING V. ALABAMA
ASPHALTIC LIMESTONE CO., ANTE, P. 179, THE PRECISE MECHANICS WHEREBY
THE REORGANIZATION WAS CONSUMMATED ARE NOT MATERIAL.  SUFFICE IT TO
SAY, THAT PURSUANT TO A PLAN OF REORGANIZATION FORMULATED BY THE
COMMITTEE UNDER THE BROAD POWERS ACCORDED IT IN THE DEPOSIT AGREEMENT,
THERE WAS A FORECLOSURE AND SALE; THE COMMITTEE WAS THE SUCCESSFUL
BIDDER AT THE PRICE OF $340,425, WHICH WAS PAID BY THE SURRENDER OF
DEPOSITED BONDS PLUS CASH; MARLBOROUGH HOUSE, INC. WAS FORMED BY THE
BONDHOLDERS; IT ACQUIRED THE PROPERTY FROM THE COMMITTEE AND ISSUED ALL
OF ITS STOCK TO THE DEPOSITING BONDHOLDERS; AND NON-ASSENTING
BONDHOLDERS WERE PAID IN CASH THEIR PRO RATA SHARE OF THE PURCHASE
PRICE.  IN DETERMINING THE INCOME TAX LIABILITY OF THE COMMITTEE  FN1
FOR A PART OF 1933, AND OF THE NEW CORPORATION FOR A PART OF 1933 AND
FOR 1934 AND 1935, THE COMMISSIONER USED AS THE BASIS FOR COMPUTING
DEPRECIATION THE PRICE BID AT THE FORECLOSURE SALE.  THE BOARD OF TAX
APPEALS FOUND THAT NEITHER THE FAIR MARKET VALUE OF THE DEPOSITED BONDS
PLUS THE CASH EXPENDED IN PARTIAL PAYMENT, NOR THE FAIR MARKET VALUE OF
THE PROPERTY, WAS IN EXCESS OF $340,425, AT THE DATE OF THE FORECLOSURE
SALE OR WHEN THE COMMITTEE TOOK POSSESSION.  THE BOARD HELD THAT, SINCE
THE NEW CORPORATION HAD ACQUIRED THE PROPERTY IN CONNECTION WITH A
"REORGANIZATION," IT WAS ENTITLED TO USE THE BASIS IN THE HANDS OF THE
OLD CORPORATION, LESS DEPRECIATION.  40 B.T.A. 882.  THE CIRCUIT COURT
OF APPEALS REVERSED.  118 F.2D 511. 

FOR THE REASONS STATED IN HELVERING V. ALABAMA ASPHALTIC LIMESTONE
CO., SUPRA, THIS TRANSACTION CLEARLY WOULD HAVE BEEN A "REORGANIZATION"
WITHIN THE MEANING OF SEC. 112(I)(1) BUT FOR ONE FACT.  THAT FACT IS
THAT THE PROPERTY WAS NOT ACQUIRED BY THE COMMITTEE OR THE NEW
CORPORATION FROM MARLBOROUGH INVESTMENT CO. FN2  IN DECEMBER, 1928,
SEVERAL YEARS PRIOR TO THE INSOLVENCY REORGANIZATION, MARLBOROUGH
INVESTMENT CO., THE ISSUER OF THE BONDS, HAD TRANSFERRED THE PROPERTY
TO ANOTHER CORPORATION.  AS A RESULT OF MESNE CONVEYANCES THE PROPERTY
WAS HELD IN MAY, 1932 BY STATE DEVELOPERS, INC. AND ONE COOLEY.  WHILE
THE FORECLOSURE PROCEEDINGS WERE PENDING, THAT CORPORATION AND COOLEY
EXECUTED AND DELIVERED A QUITCLAIM DEED TO THE PROPERTY, IN
CONSIDERATION OF THE PAYMENT OF THE CASH SUM OF $10,025, WHICH WAS
FURNISHED BY THE COMMITTEE. 

IN VIEW OF THESE CIRCUMSTANCES, THERE WAS NO "REORGANIZATION" WITHIN
THE MEANING OF SEC. 112(I)(1).  THE PARENTHETICAL PART OF CLAUSE A
WHICH IS RELEVANT HERE COVERS "THE ACQUISITION BY ONE CORPORATION" OF
SUBSTANTIALLY ALL OF THE PROPERTIES "OF ANOTHER CORPORATION."  CLAUSE B
COVERS CERTAIN TRANSFERS "BY A CORPORATION" OF ALL OR A PART OF ITS
ASSETS "TO ANOTHER CORPORATION" WHERE THE TRANSFEROR OR ITS
STOCKHOLDERS CONTINUE IN CONTROL.  THESE WERE NOT "PROPERTIES" OF
MARLBOROUGH INVESTMENT CO. IT HAD LONG SINCE CEASED TO OWN THEM.  IT
WAS NOT THE "TRANSFEROR."  FURTHERMORE, SEC. 113(A)(7) AUTHORIZES A
CARRY-OVER OF THE BASIS OF THE PROPERTIES FN3  IN THE HANDS OF THE
"TRANSFEROR," NOT THEIR BASIS IN THE HANDS OF ONE WHO MAY HAVE OCCUPIED
AN EARLIER POSITION IN THE CHAIN OF OWNERSHIP.  HENCE IT IS IMMATERIAL
THAT UNDER THE RULE OF HELVERING V. ALABAMA ASPHALTIC LIMESTONE CO.,
SUPRA, THE BONDHOLDERS HAD SUCCEEDED TO ALL OF THE PROPRIETARY INTEREST
IN MARLBOROUGH INVESTMENT CO. THE PROPERTY WHOSE BASIS IS IN
CONTROVERSY HERE WAS NOT ACQUIRED FROM IT.  NOR WAS THERE A
"REORGANIZATION" AS BETWEEN THE COMMITTEE OR THE NEW CORPORATION ON THE
ONE HAND AND STATE DEVELOPERS, INC. AND COOLEY ON THE OTHER.  COOLEY
WAS AN INDIVIDUAL.  THE "REORGANIZATION" PROVISIONS IN QUESTION COVER
ONLY INTER-CORPORATE TRANSACTIONS.  SEC. 113(A)(8) PROVIDES FOR A CARRY
OVER OF THE BASIS OF THE PROPERTIES IN THE HANDS OF THE "TRANSFEROR" IF
THE PROPERTY WAS ACQUIRED BY A CORPORATION AFTER DECEMBER 31, 1920, BY
THE ISSUANCE OF ITS STOCK OR SECURITIES "IN CONNECTION WITH A
TRANSACTION" DESCRIBED IN SEC. 112(B)(5).  SEC. 112(B)(5) INCLUDES
TRANSFERS BY INDIVIDUALS; FN4  BUT IT REQUIRES THAT THE TRANSFEROR
REMAIN IN CONTROL.  COOLEY AND STATE DEVELOPERS, INC. WERE BOUGHT OUT
FOR CASH. 

IT IS ARGUED THAT, IF THE COMMITTEE'S ACQUISITION OF THE PROPERTIES
IS TO BE TREATED AS A PURCHASE RATHER THAN A "REORGANIZATION," THE COST
TO THE COMMITTEE SHOULD BE MEASURED BY THE AMOUNT OF THE CASH ADVANCED
BY THE COMMITTEE, PLUS THE FACE VALUE OF THE DEPOSITED BONDS.  THERE IS
NO FOUNDATION FOR THAT CONTENTION.  THE BASIS OF ASSETS BID IN BY A
MORTGAGE CREDITOR ON FORECLOSURE IS TO BE DETERMINED BY THE FAIR MARKET
VALUE OF THE PROPERTY.  SEE ART. 193, TREASURY REGULATIONS 77;
HELVERING V. NEW PRESIDENT CORP., 122 F.2D 92, 96-97.  ALTHOUGH THE
COMMISSIONER USED THE BID PRICE IN ASCERTAINING THE BASIS, THE BOARD
FOUND THAT THE MARKET VALUE OF THE ASSETS DID NOT EXCEED THAT AMOUNT. 
RESPONDENT THEREFORE SUGGESTS THAT A REMAND TO THE BOARD TO ASCERTAIN
THE FAIR MARKET VALUE IS NOT NECESSARY.  ACCORDINGLY, THE JUDGMENT
BELOW IS AFFIRMED. 

FN1  THE COMMITTEE TOOK POSSESSION OF THE PROPERTY AND MANAGED IT FOR
A PART OF THE YEAR 1933, PRIOR TO THE DATE WHEN THE NEW CORPORATION
ACQUIRED IT.  THE BOARD HELD THAT THE COMMITTEE WAS TAXABLE AS A
CORPORATION ON THE INCOME RECEIVED DURING THAT PERIOD BY IT.  THE
COMMITTEE DID NOT PETITION FOR REVIEW OF THAT DETERMINATION BY THE
CIRCUIT COURT OF APPEALS. 

FN2  THOUGH RESPONDENT APPARENTLY DID NOT URGE THIS POINT BEFORE THE
BOARD OR THE COURT BELOW, IT MAY, OF COURSE, SUPPORT THE JUDGMENT HERE
BY ANY MATTER APPEARING IN THE RECORD.  LETULLE V. SCOFIELD, 308 U.S.
415, 421, AND CASES CITED. 

FN3  BY SEC. 114(A), THE BASIS UPON WHICH DEPRECIATION IS ALLOWED IS
THE ADJUSTED BASIS PROVIDED IN SEC. 113(B) FOR THE PURPOSE OF
DETERMINING GAIN OR LOSS.  BY SEC. 113(B), SUCH ADJUSTED BASIS IS THE
BASIS DETERMINED UNDER SEC. 113(A).  BY SEC. 113(A), THE BASIS OF
PROPERTY SHALL BE "COST," WITH ENUMERATED EXCEPTIONS.  ONE OF THOSE
EXCEPTIONS IS CONTAINED IN SEC. 113(A)(7), SET FORTH IN PALM SPRINGS
HOLDING CORP. V. COMMISSIONER, ANTE, P. 185, NOTE 1. 

FN4  SEC. 112(B)(5) PROVIDES IN PART:  "NO GAIN OR LOSS SHALL BE
RECOGNIZED IF PROPERTY IS TRANSFERRED TO A CORPORATION BY ONE OR MORE
PERSONS SOLELY IN EXCHANGE FOR STOCK OR SECURITIES IN SUCH CORPORATION,
AND IMMEDIATELY AFTER THE EXCHANGE SUCH PERSON OR PERSONS ARE IN
CONTROL OF THE CORPORATION." 

MR. JUSTICE ROBERTS DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :















HELVERING V. SOUTHWEST CORP., 315 U.S. 194 


NO. 286.  ARGUED JANUARY 14, 15, 1942.  - DECIDED FEBRUARY 2, 1942.  -
119 F.2D 561, REVERSED. 


1.  PURSUANT TO A PLAN OF CREDITORS, THE INDENTURE SECURING BONDS OF
AN INSOLVENT CORPORATION WAS FORECLOSED AND ITS PROPERTIES TRANSFERRED
TO A NEW CORPORATION IN EXCHANGE FOR COMMON STOCK AND STOCK PURCHASE
WARRANTS OF THE LATTER, THE COMMON STOCK GOING MOSTLY TO BONDHOLDERS OF
THE OLD CORPORATION, BUT A SMALL PORTION OF IT, TOGETHER WITH PART OF
THE WARRANTS, TO THE OLD CORPORATION'S PARTICIPATING UNSECURED
CREDITORS, THE OTHER WARRANTS GOING TO THE OLD CORPORATION'S PREFERRED
AND COMMON STOCKHOLDERS.  ITS NONPARTICIPATING SECURITY HOLDERS WERE
PAID CASH, WHICH WAS OBTAINED IN THE COURSE OF THE TRANSACTION BY MEANS
OF A LOAN FROM A BANK WHICH THE NEW CORPORATION LATER ASSUMED AND
PAID.  HELD, THAT THE TRANSACTION IS NOT A "REORGANIZATION" UNDER SEC.
112(G)(1) OF THE REVENUE ACT OF 1934.  P. 198. 

TO CONSTITUTE A "REORGANIZATION" UNDER CLAUSE B OF THAT SECTION, THE
ASSETS OF THE TRANSFEROR CORPORATION MUST BE ACQUIRED SOLELY FOR VOTING
STOCK OF THE TRANSFEREE.  VOTING STOCK PLUS SOME OTHER CONSIDERATION
DOES NOT MEET THE STATUTORY REQUIREMENT. 

2.  THE PROVISION OF THE REVENUE ACT OF 1934, SEC. 112(G)(1)(B), AS
AMENDED RETROACTIVELY BY THE REVENUE ACT OF 1939, THAT IN DETERMINING
WHETHER AN EXCHANGE IS SOLELY FOR VOTING STOCK "THE ASSUMPTION BY THE
ACQUIRING CORPORATION OF A LIABILITY OF THE OTHER, OR THE FACT THAT
PROPERTY ACQUIRED IS SUBJECT TO A LIABILITY, SHALL BE DISREGARDED," IS
INAPPLICABLE TO AN INDEBTEDNESS ARISING OUT OF THE REORGANIZATION, SUCH
AS THE BANK LOAN DESCRIBED SUPRA, AS DISTINGUISHED FROM A DEBT OF THE
TRANSFEROR ANTEDATING THE TRANSACTION.  P. 198. 

3.  WARRANTS ENTITLING THE HOLDER TO BUY VOTING COMMON STOCK AT SO
MUCH PER SHARE ARE NOT "VOTING STOCK" WITHIN THE MEANING OF SEC.
112(G)(1)(B) OF THE REVENUE ACT OF 1934.  P. 200. 

4.  UNDER CLAUSE C OF SEC. 112(G)(1) OF THE REVENUE ACT OF 1934,
WHICH REQUIRES THAT IMMEDIATELY AFTER THE TRANSFER THE TRANSFEROR OR
ITS STOCKHOLDERS OR BOTH BE IN CONTROL OF THE TRANSFEREE CORPORATION,
AND SEC. 112(H) WHICH DEFINES "CONTROL," THERE IS NO REORGANIZATION
WHERE AT THE CRITICAL DATE CONTROL IS IN CREDITORS OF THE OLD
CORPORATION BY VIRTUE OF SHARES ISSUED TO THEM BY THE NEW CORPORATION. 
P. 201. 

5.  "RECAPITALIZATION" WITHIN THE MEANING OF CLAUSE D OF SEC. 112(G),
SUPRA, IMPLIES A RESHUFFLING OF A CAPITAL STRUCTURE WITHIN THE
FRAMEWORK OF AN EXISTING CORPORATION, AND A TRANSACTION WHICH SHIFTS
THE OWNERSHIP OF THE PROPRIETARY INTEREST IN THE CORPORATION IS NOT "A
MERE CHANGE IN IDENTITY, FORM, OR PLACE OF ORGANIZATION" WITHIN THE
MEANING OF CLAUSE E. P. 202. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. SOUTHWEST CONSOLIDATED
CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 314 U.S. 598, TO REVIEW A JUDGMENT WHICH AFFIRMED A
DECISION OF THE BOARD OF TAX APPEALS OVERRULING DEFICIENCY
ASSESSMENTS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE PRIMARY PROBLEM IN THIS CASE IS WHETHER THE TRANSACTION IN
QUESTION QUALIFIED AS A "REORGANIZATION" UNDER SEC. 112(G)(1) OF THE
REVENUE ACT OF 1934.  48 STAT. 680, 705.  SEC. 112(G) PROVIDES: 

"AS USED IN THIS SECTION AND SECTION 113 - 

"(1)  THE TERM 'REORGANIZATION' MEANS (A) A STATUTORY MERGER OR
CONSOLIDATION, OR (B) THE ACQUISITION BY ONE CORPORATION IN EXCHANGE
SOLELY FOR ALL OR A PART OF ITS VOTING STOCK:  OF AT LEAST 80 PER
CENTUM OF THE VOTING STOCK AND AT LEAST 80 PER CENTUM OF THE TOTAL
NUMBER OF SHARES OF ALL OTHER CLASSES OF STOCK OF ANOTHER CORPORATION;
OR OF SUBSTANTIALLY ALL THE PROPERTIES OF ANOTHER CORPORATION, OR (C) A
TRANSFER BY A CORPORATION OF ALL OR A PART OF ITS ASSETS TO ANOTHER
CORPORATION IF IMMEDIATELY AFTER THE TRANSFER THE TRANSFEROR OR ITS
STOCKHOLDERS OR BOTH ARE IN CONTROL OF THE CORPORATION TO WHICH THE
ASSETS ARE TRANSFERRED, OR (D) A RECAPITALIZATION, OR (E) A MERE CHANGE
IN IDENTITY, FORM, OR PLACE OF ORGANIZATION, HOWEVER EFFECTED." 

RESPONDENT FILED AN INCOME AND EXCESS PROFITS TAX RETURN FOR A PART
OF THE YEAR 1934 AND FOR THE ENTIRE YEAR 1935, REPORTING A NET LOSS FOR
EACH YEAR.  PETITIONER, IN DETERMINING DEFICIENCIES, MADE CERTAIN
ADJUSTMENTS ON THE THEORY THAT THE ACQUISITION BY RESPONDENT IN 1934 OF
ALL OF THE ASSETS OF ITS PREDECESSOR, SOUTHWEST GAS UTILITIES CORP.,
WAS NOT A "REORGANIZATION" AS DEFINED IN SEC. 112(G)(1).  THE COST
BASIS OF THE ASSETS IN THE HANDS OF THE OLD CORPORATION HAD BEEN ABOUT
$9,000,000.  THEY WERE PURCHASED AT FORECLOSURE AND RECEIVERSHIP SALES
FOR $752,000.  RESPONDENT USED THE FORMER FIGURE AS THE BASIS IN
COMPUTING GAINS AND LOSSES ON THE ACQUIRED ASSETS.  THUS IT DEDUCTED
SOME $75,000 AS BAD DEBTS.  PETITIONER, IN USING THE LOWER FIGURE AS
THE BASIS, ALLOWED THAT DEDUCTION ONLY TO THE EXTENT OF $1.26. 
DEFICIENCIES COMPUTED ON THAT THEORY SHOWED A NET INCOME, RATHER THAN A
NET LOSS, FOR EACH YEAR.  THE BOARD OF TAX APPEALS REJECTED THE
COMMISSIONER'S VIEW.  FN1  THE CIRCUIT COURT OF APPEALS AFFIRMED THE
JUDGMENT OF THE BOARD.  119 F.2D 561. 

THE OLD CORPORATION WAS BURDENED WITH SOME $2,870,000 FACE AMOUNT OF
FIRST LIEN BONDS, CERTAIN UNSECURED CLAIMS, AND ISSUES OF PREFERRED AND
COMMON STOCK.  THERE WAS A DEFAULT IN INTEREST ON THE BONDS IN MAY,
1932.  A BONDHOLDERS' COMMITTEE WAS FORMED, WHICH OBTAINED THE DEPOSIT
OF ABOUT 85% OF THE BONDS OUTSTANDING.  MEMBERS OF THE COMMITTEE BECAME
DIRECTORS OF THE OLD CORPORATION AND, BEGINNING IN THE FALL OF 1932,
WERE IN CONTROL OF IT.  IN 1934, EQUITY RECEIVERS WERE APPOINTED BY THE
DELAWARE CHANCERY COURT.  A PLAN OF REORGANIZATION WAS FORMULATED,
WHICH WAS APPROVED BY THE COURT.  THE PLAN CALLED FOR THE FORMATION OF
A NEW COMPANY WHICH WOULD ACQUIRE THE ASSETS OF THE OLD IN EXCHANGE FOR
VOTING COMMON STOCK AND CLASS A AND CLASS B STOCK PURCHASE WARRANTS. 
MOST OF THE COMMON STOCK, ISSUED UNDER THE PLAN, WAS TO GO TO THE
BONDHOLDERS; A SMALL PORTION, TOGETHER WITH THE CLASS A WARRANTS, WAS
TO BE ISSUED TO THE UNSECURED CREDITORS.  CLASS B WARRANTS WERE TO BE
ISSUED TO THE PREFERRED AND COMMON STOCKHOLDERS.  PURSUANT TO THE PLAN
AND A COURT ORDER, THE ASSETS SECURING THE BONDS WERE SOLD BY THE
INDENTURE TRUSTEE AT A FORECLOSURE SALE IN 1934.  THEY WERE BID IN BY
THE BONDHOLDERS' COMMITTEE FOR $660,000.  THE UNPLEDGED ASSETS ALSO
WERE SOLD AT PUBLIC AUCTION AND WERE BOUGHT IN BY THE COMMITTEE FOR
$92,000.  RESPONDENT WAS THEREUPON FORMED, AND THE COMMITTEE
TRANSFERRED ALL THE ASSETS OF THE OLD CORPORATION TO IT.  THE BOARD
FOUND THAT THE FAIR MARKET VALUE OF THE ASSETS AT THAT TIME WAS
$1,766,694.98.  THE STOCK AND WARRANTS OF RESPONDENT WERE DISTRIBUTED
PURSUANT TO THE PLAN.  NON-PARTICIPATING SECURITY HOLDERS, OWNING
$440,000 FACE AMOUNT OF OBLIGATIONS, RECEIVED ABOUT $106,680 IN CASH. 
THE CASH NECESSARY TO MAKE THIS PAYMENT WAS OBTAINED BY A LOAN FROM A
BANK.  THE LOAN WAS ASSUMED BY THE RESPONDENT AND LATER REPAID BY IT.
ABOUT 49,300 SHARES OF COMMON STOCK AND 2,760 CLASS A WARRANTS WERE
ISSUED TO THE CREDITORS; OVER 18,445 CLASS B WARRANTS WERE ISSUED TO
THE STOCKHOLDERS.  CLASS A WARRANTS CARRIED THE RIGHT TO BUY ONE SHARE
OF COMMON STOCK AT $6 A SHARE DURING 1934, THE PRICE BEING INCREASED $1
PER SHARE EACH YEAR UNTIL EXPIRATION IN 1938.  CLASS B WARRANTS CARRIED
THE SAME RIGHT EXCEPT THAT THE PRICE WAS $10 A SHARE DURING 1934 AND
WAS INCREASED BY $5 PER SHARE EACH YEAR UNTIL EXPIRATION IN 1938. 
THERE WERE 1,760 CLASS A WARRANTS AND 4,623 OF THE CLASS B WARRANTS
EXERCISED.  ON THE BASIS OF THE FAIR MARKET VALUE OF THE ASSETS AT THE
TIME THEY WERE ACQUIRED IN THE REORGANIZATION, RESPONDENT COMPUTES THAT
THE CLASS A WARRANTS HAD A VALUE OF $29 EACH AND THE CLASS B WARRANTS A
VALUE OF $25 EACH. 

UNDER THE STATUTE INVOLVED IN HELVERING V. ALABAMA ASPHALTIC
LIMESTONE CO., ANTE, P. 179, THERE WOULD HAVE BEEN A "REORGANIZATION"
HERE.  FOR, THE CREDITORS OF THE OLD COMPANY HAD ACQUIRED SUBSTANTIALLY
THE ENTIRE PROPRIETARY INTEREST OF THE OLD STOCKHOLDERS.  SEE HELVERING
V. MINNESOTA TEA CO., 296 U.S. 378.  BUT CLAUSE B OF SEC. 112(G)(1) OF
THE 1934 ACT EFFECTS AN IMPORTANT CHANGE AS RESPECTS TRANSACTIONS
WHEREBY ONE CORPORATION ACQUIRES SUBSTANTIALLY ALL OF THE ASSETS OF
ANOTHER.  SEE S. REP. NO. 558, 73D CONG., 2D SESS., COMMITTEE REPORTS,
REVENUE ACTS 1913-1938, PP. 598-599.  THE CONTINUITY OF INTEREST TEST
IS MADE MUCH STRICTER.  SEE PAUL, STUDIES IN FEDERAL TAXATION (3D
SERIES), PP. 36-41.  CONGRESS HAS PROVIDED THAT THE ASSETS OF THE
TRANSFEROR CORPORATION MUST BE ACQUIRED IN EXCHANGE "SOLELY" FOR
"VOTING STOCK" OF THE TRANSFEREE.  "SOLELY" LEAVES NO LEEWAY.  VOTING
STOCK PLUS SOME OTHER CONSIDERATION DOES NOT MEET THE STATUTORY
REQUIREMENT.  SEE HENDRICKS, DEVELOPMENTS IN THE TAXATION OF
REORGANIZATIONS, 34 COL. L. REV. 1198, 1202-1203.  CONGRESS, HOWEVER,
IN 1939 AMENDED CLAUSE B OF SEC. 112(G)(1) BY ADDING, "BUT IN
DETERMINING WHETHER THE EXCHANGE IS SOLELY FOR VOTING STOCK THE
ASSUMPTION BY THE ACQUIRING CORPORATION OF A LIABILITY OF THE OTHER, OR
THE FACT THAT PROPERTY ACQUIRED IS SUBJECT TO A LIABILITY, SHALL BE
DISREGARDED."  53 STAT. 871.  THAT AMENDMENT WAS MADE TO AVOID THE
CONSEQUENCES OF UNITED STATES V. HENDLER, 303 U.S. 564.  SEE H. REP.
NO. 855, 76TH CONG., 1ST SESS., PP. 18-20; S. REP. NO. 648, 76TH CONG.,
1ST SESS., P. 3.  AND IT WAS MADE RETROACTIVE SO AS TO INCLUDE THE 1934
ACT.  53 STAT. 872.  BUT, WITH THAT EXCEPTION, THE REQUIREMENTS OF SEC.
112(G)(1)(B) ARE NOT MET IF PROPERTIES ARE ACQUIRED IN EXCHANGE FOR A
CONSIDERATION OTHER THAN, OR IN ADDITION TO, VOTING STOCK.  UNDER THAT
TEST, THIS TRANSACTION FAILS TO QUALIFY AS A "REORGANIZATION" UNDER
CLAUSE B. 

IN THE FIRST PLACE, SECURITY HOLDERS OF THE OLD COMPANY OWNING
$440,000 FACE AMOUNT OF OBLIGATIONS WERE PAID OFF IN CASH.  THAT CASH
WAS RAISED, DURING THE REORGANIZATION, ON A LOAN FROM A BANK.  SINCE
THAT LOAN WAS ASSUMED BY RESPONDENT, IT IS ARGUED THAT THE REQUIREMENT
OF CLAUSE B, AS AMENDED IN 1939, WAS SATISFIED.  BUT, IN SUBSTANCE, THE
TRANSACTION WAS PRECISELY THE SAME AS IF RESPONDENT HAD PAID CASH PLUS
VOTING STOCK FOR THE PROPERTIES.  WE SEARCH THE LEGISLATIVE HISTORY OF
THE 1939 AMENDMENT IN VAIN FOR ANY INDICATION THAT IT WAS DESIGNED TO
DO MORE THAN TO ALTER THE RULE OF THE HENDLER CASE.  THAT CASE DEALT
WITH A SITUATION WHERE AN INDEBTEDNESS WHICH ANTEDATED THE TRANSACTION
IN QUESTION WAS ASSUMED BY THE TRANSFEREE.  THERE THE DEBT ASSUMED
CLEARLY WAS A "LIABILITY OF THE OTHER" CORPORATION.  THE SITUATION HERE
IS QUITE DIFFERENT.  THE RIGHTS OF THE SECURITY HOLDERS AGAINST THE OLD
CORPORATION WERE DRASTICALLY ALTERED BY THE SALE MADE PURSUANT TO THE
PLAN.  THE SALE NOT ONLY REMOVED THE LIEN FROM THE PROPERTY AND ALTERED
THE RIGHTS OF SECURITY HOLDERS IN IT; IT ALSO LIMITED AND DEFINED THE
RIGHTS OF THE INDIVIDUAL CREDITORS IF THEY ELECTED TO TAKE CASH RATHER
THAN PARTICIPATE IN THE PLAN.  SEE WEINER, CONFLICTING FUNCTIONS OF THE
UPSET PRICE, 27 COL. L. REV. 132, 137-138.  IN HELVERING V. ALABAMA
ASPHALTIC LIMESTONE CO., SUPRA, ANTE, P. 179, WE REGARDED THE SEVERAL
STEPS IN A REORGANIZATION AS MERE "INTERMEDIATE PROCEDURAL DEVICES
UTILIZED TO ENABLE THE NEW CORPORATION TO ACQUIRE ALL THE ASSETS OF THE
OLD ONE PURSUANT TO A SINGLE REORGANIZATION PLAN."  UNDER THAT
APPROACH, PART OF THE CONSIDERATION WHICH RESPONDENT PAID FOR THE
PROPERTIES OF ITS PREDECESSOR WAS CASH IN THE AMOUNT OF ABOUT
$106,680.  THE FACT THAT IT WAS PAID TO THE BANK, RATHER THAN TO THE
OLD CORPORATION OR ITS CREDITORS, IS IMMATERIAL.  THE REQUIREMENT TO
PAY CASH AROSE OUT OF THE REORGANIZATION ITSELF.  IT DERIVED, AS DID
THE REQUIREMENT TO PAY STOCK, FROM THE PLAN PURSUANT TO WHICH THE
PROPERTIES WERE ACQUIRED.  IT WAS A NECESSARY INCIDENT OF THE COURT
DECREE WHICH WIPED OUT THE LIABILITY OF THE OLD CORPORATION AND
SUBSTITUTED ANOTHER ONE IN ITS PLACE.  THOUGH THE LIABILITY ASSUMED HAD
ITS ORIGIN IN OBLIGATIONS OF THE TRANSFEROR, ITS NATURE AND AMOUNT WERE
DETERMINED AND FIXED IN THE REORGANIZATION.  IT THEREFORE CANNOT BE
LABELLED AS AN OBLIGATION OF THE "OTHER" OR PREDECESSOR CORPORATION
WITHIN THE MEANING OF THE 1939 AMENDMENT.  NOR CAN THE PROPERTY BE SAID
TO HAVE BEEN ACQUIRED "SUBJECT TO" THAT LIABILITY WITHIN THE PURVIEW OF
THAT AMENDMENT.  THE WORDS "SUBJECT TO" NORMALLY CONNOTE, IN LEGAL
PARLANCE, AN ABSENCE OF PERSONAL OBLIGATION.  THAT SEEMS TO BE THE CASE
HERE, FOR THE PRECEDING CLAUSE OF THE AMENDMENT COVERS THE CASE OF
"ASSUMPTION." 

IN THE SECOND PLACE, THE WARRANTS WHICH WERE ISSUED WERE NOT "VOTING
STOCK."  WHATEVER RIGHTS A WARRANT HOLDER MAY HAVE "TO REQUIRE THE
OBLIGOR CORPORATION TO MAINTAIN THE INTEGRITY OF THE SHARES" COVERED BY
THE WARRANTS (SEE BERLE, STUDIES IN THE LAW OF CORPORATION FINANCE
(1928), PP. 136-142), HE IS NOT A SHAREHOLDER.  GAY V. BURGESS MILLS,
30 R.I. 231, 74 A. 714.  CF. MILES V. SAFE DEPOSIT CO., 259 U.S. 247,
252.  HIS RIGHTS ARE WHOLLY CONTRACTUAL.  AS STATED BY HOLMES, J., IN
PARKINSON V. WEST END STREET RY. CO., 173 MASS. 446, 448, 53 N.E. 891,
892, HE "DOES NOT BECOME A STOCKHOLDER BY HIS CONTRACT IN EQUITY ANY
MORE THAN AT LAW."  AT TIMES, HIS RIGHT MAY EXPIRE ON THE CONSOLIDATION
OF THE OBLIGOR CORPORATION WITH ANOTHER.  ID.  IF, AT THE TIME HE
EXERCISES HIS RIGHT, THERE ARE NO AUTHORIZED AND UNISSUED SHARES TO
SATISFY HIS DEMAND, HE WILL GET DAMAGES, NOT SPECIFIC PERFORMANCE. 
BRATTEN V. CATAWISSA RAILROAD CO., 211 PA. 21, 60 A. 319.  AND SEE VAN
ALLEN V. ILLINOIS CENTRAL R. CO., 7 BOSW.  515.  THUS, HE DOES NOT
HAVE, AND MAY NEVER ACQUIRE, ANY LEGAL OR EQUITABLE RIGHTS IN SHARES OF
STOCK.  LISMAN V. MILWAUKEE, L.S. & W. RY. CO., 161 F. 472, 480, AFF'D
170 F. 1020.  AND HE CANNOT ASSERT THE RIGHTS OF A SHAREHOLDER.  SEE
HILLS, CONVERTIBLE SECURITIES, 19 CALIF. L. REV. 1, 4.  ACCORDINGLY,
THE ACQUISITION IN THIS CASE WAS NOT MADE "SOLELY" FOR VOTING STOCK. 
FN2  AND IT MAKES NO DIFFERENCE THAT, IN THE LONG RUN, THE UNEXERCISED
WARRANTS EXPIRED AND NOTHING BUT VOTING STOCK WAS OUTSTANDING.  THE
CRITICAL TIME IS THE DATE OF THE EXCHANGE.  IN THAT POSTURE OF THE
CASE, IT IS NO DIFFERENT THAN IF OTHER CONVERTIBLE SECURITIES HAD BEEN
ISSUED, ALL OF WHICH HAD BEEN CONVERTED WITHIN THE CONVERSION PERIOD. 

NOR CAN THIS TRANSACTION QUALIFY AS A "REORGANIZATION" UNDER CLAUSE C
OF SEC. 112(G)(1).  THAT CLAUSE REQUIRES THAT, "IMMEDIATELY AFTER THE
TRANSFER," THE "TRANSFEROR OR ITS STOCKHOLDERS OR BOTH" BE IN "CONTROL"
OF THE TRANSFEREE CORPORATION.  "CONTROL" IS DEFINED IN SEC. 112(H) AS
"THE OWNERSHIP OF AT LEAST 80 PER CENTUM OF THE VOTING STOCK AND AT
LEAST 80 PER CENTUM OF THE TOTAL NUMBER OF SHARES OF ALL OTHER CLASSES
OF STOCK OF THE CORPORATION."  HERE, "CONTROL" AT THE CRITICAL DATE WAS
NOT IN THE OLD CORPORATION OR ITS "STOCKHOLDERS."  THE PARTICIPATING
CREDITORS HAD RECEIVED, PURSUANT TO THE PLAN, RIGHTS TO RECEIVE OVER A
MAJORITY OF THE STOCK OF THE NEW COMPANY, EVEN THOUGH ALL OF THE
WARRANTS ALLOCATED TO STOCKHOLDERS HAD BEEN ISSUED AND EXERCISED.  THE
CONTRARY CONCLUSION WAS REACHED IN COMMISSIONER V. CEMENT INVESTORS,
INC., 122 F.2D 380, 384, FN3  ON THE THEORY THAT THE BONDHOLDERS OF THE
INSOLVENT PREDECESSOR COMPANY COULD BE REGARDED AS ITS "STOCKHOLDERS"
WITHIN THE MEANING OF SEC. 112(G)(1)(C), SINCE THEY HAD ACQUIRED AN
EQUITABLE INTEREST IN THE PROPERTY AND WERE EMPOWERED TO SUPPLANT THE
STOCKHOLDERS.  WE HAVE ADOPTED THAT THEORY IN HELVERING V. ALABAMA
ASPHALTIC LIMESTONE CO., SUPRA, IN DETERMINING WHETHER THE BONDHOLDERS
HAD RETAINED A SUFFICIENT CONTINUITY IN INTEREST SO AS TO BRING THE
TRANSACTION WITHIN THE STATUTORY DEFINITION OF MERGER OR CONSOLIDATION
CONTAINED IN THE REVENUE ACTS PRIOR TO 1934.  BUT IT IS ONE THING TO
SAY THAT THE BONDHOLDERS "STEPPED INTO THE SHOES OF THE OLD
STOCKHOLDERS" SO AS TO ACQUIRE THE PROPRIETARY INTEREST IN THE
INSOLVENT COMPANY.  IT IS QUITE ANOTHER TO SAY THAT THEY WERE THE
"STOCKHOLDERS" OF THE OLD COMPANY WITHIN THE PURVIEW OF CLAUSE C. IN
THE LATTER, CONGRESS WAS DESCRIBING AN EXISTING, SPECIFIED CLASS OF
SECURITY HOLDERS OF THE TRANSFEROR CORPORATION.  THAT CLASS, AS WE HAVE
SEEN, RECEIVED A PARTICIPATION IN THE PLAN OF REORGANIZATION.  FOR
PURPOSES OF CLAUSE C, THEY MUST BE COUNTED IN DETERMINING WHERE
"CONTROL" OVER THE NEW COMPANY LAY.  THEY CANNOT BE TREATED UNDER
CLAUSE C AS SOMETHING OTHER THAN "STOCKHOLDERS" OF THE OLD COMPANY
MERELY BECAUSE THEY ACQUIRED A MINORITY INTEREST IN THE NEW ONE. 
INDEED, CLAUSE C CONTEMPLATES THAT THE OLD CORPORATION OR ITS
STOCKHOLDERS, RATHER THAN ITS CREDITORS, SHALL BE IN THE DOMINANT
POSITION OF "CONTROL" IMMEDIATELY AFTER THE TRANSFER, AND NOT EXCLUDED
OR RELEGATED TO A MINORITY POSITION.  PLAINLY, THE NORMAL PATTERN OF
INSOLVENCY REORGANIZATION DOES NOT FIT ITS REQUIREMENTS. 

CLAUSE D IS LIKEWISE INAPPLICABLE.  THERE WAS NOT THAT RESHUFFLING OF
A CAPITAL STRUCTURE, WITHIN THE FRAMEWORK OF AN EXISTING CORPORATION,
CONTEMPLATED BY THE TERM "RECAPITALIZATION."  AND A TRANSACTION WHICH
SHIFTS THE OWNERSHIP OF THE PROPRIETARY INTEREST IN A CORPORATION IS
HARDLY "A MERE CHANGE IN IDENTITY, FORM, OR PLACE OF ORGANIZATION"
WITHIN THE MEANING OF CLAUSE E. REVERSED. 

FN1  THE PETITION FOR REVIEW BY THE TAXPAYER CONTENDED THAT THIS
TRANSACTION WAS A "REORGANIZATION" WITHIN THE PURVIEW OF SEC.
112(G)(1), AND THEREFORE THAT THE CARRY-OVER BASIS PROVIDED IN SEC.
113(A)(7) WAS APPLICABLE.  NO OTHER ISSUES WERE RAISED OR CONSIDERED BY
THE BOARD OR THE COURT BELOW.  WE PASS ONLY ON THAT QUESTION, LEAVING
OPEN SUCH OTHER QUESTIONS AS MAY BE APPROPRIATELY PRESENTED TO THE
BOARD. 

FN2  THE CONTRARY VIEW EXPRESSED IN A LETTER BY THE COMMISSIONER,
DATED JANUARY 27, 1937(1937 C.C.H. VOL. 3, PAR. 6118), DOES NOT HAVE
THE STATUS OF A FORMAL RULING OF THE TREASURY, NOR DOES IT SEEM TO
REFLECT AN ESTABLISHED COURSE OF ADMINISTRATIVE CONSTRUCTION. 

FN3  NO. 644, 316 U.S. 527. 

MR. JUSTICE ROBERTS DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :


















UNITED STATES V. PINK, 315 U.S. 203 


NO. 42.  ARGUED DECEMBER 15, 1941.  - DECIDED FEBRUARY 2, 1942.  - 284
N.Y. 555, 32 N.E.2D 552, REVERSED. 


1.  THE QUESTION OF THE PROPRIETY, UNDER NEW YORK PRACTICE, OF
GROUNDING A MOTION FOR SUMMARY JUDGMENT IN THIS CASE ON THE RECORD IN
MOSCOW FIRE INS. CO. V. BANK OF NEW YORK & TRUST CO., 280 N.Y. 286, IS
ONE OF STATE LAW, UPON WHICH THE DECISION OF THE HIGHEST COURT OF THE
STATE IS FINAL.  P. 216. 

2.  THE MOSCOW CASE IS NOT RES JUDICATA HERE, SINCE THE RESPONDENT
WAS NOT A PARTY TO THAT SUIT.  P. 216. 

3.  THE AFFIRMANCE HERE BY AN EQUALLY DIVIDED COURT OF THE JUDGMENT
IN THE MOSCOW CASE, 309 U.S. 624, ALTHOUGH CONCLUSIVE AND BINDING UPON
THE PARTIES TO THAT CONTROVERSY, CAN NOT BE REGARDED AS AN
AUTHORITATIVE DETERMINATION OF THE PRINCIPLES OF LAW THERE INVOLVED. 
P. 216. 

4.  JUDICIAL NOTICE MAY HERE BE TAKEN OF THE RECORD IN THIS COURT OF
THE MOSCOW CASE.  P. 216. 

5.  THE CLAIM OF THE UNITED STATES IN THIS CASE, BASED ON THE
LITVINOV ASSIGNMENT - WHEREBY THE RUSSIAN GOVERNMENT, INCIDENTLY TO ITS
RECOGNITION BY THE UNITED STATES IN 1933, ASSIGNED CERTAIN CLAIMS TO
THE UNITED STATES - RAISES A FEDERAL QUESTION.  P. 217. 

6.  UPON REVIEW OF A JUDGMENT OF A STATE COURT, THIS COURT WILL
DETERMINE INDEPENDENTLY ALL QUESTIONS ON WHICH A FEDERAL RIGHT IS
NECESSARILY DEPENDENT.  P. 217. 

7.  THE DETERMINATION OF WHAT TITLE THE UNITED STATES OBTAINED TO THE
NEW YORK ASSETS OF A RUSSIAN INSURANCE COMPANY, BY VIRTUE OF THE
LITVINOV ASSIGNMENT AND THE RUSSIAN DECREES OF 1918 AND 1919
NATIONALIZING THE INSURANCE BUSINESS, INVOLVES QUESTIONS OF FOREIGN LAW
UPON WHICH THE DECISION OF THE STATE COURT IS NOT CONCLUSIVE.  P. 218. 

8.  AN OFFICIAL DECLARATION BY THE COMMISSARIAT FOR JUSTICE OF THE
R.S.F.S.R., AS TO THE INTENDED EFFECT OF A DECREE OF THE RUSSIAN
GOVERNMENT NATIONALIZING INSURANCE COMPANIES, TENDERED TO THE COURT
BELOW PURSUANT TO SEC. 391 OF THE NEW YORK CIVIL PRACTICE ACT, WAS
PROPERLY BEFORE THAT COURT ON APPEAL, THOUGH NOT A PART OF THE RECORD,
AND MAY BE CONSIDERED HERE.  P. 220. 

9.  THE RUSSIAN GOVERNMENT'S DECREE NATIONALIZING THE INSURANCE
BUSINESS WAS INTENDED TO EMBRACE THE PROPERTY OF THE NEW YORK BRANCH OF
THE RUSSIAN INSURANCE COMPANY INVOLVED IN THIS CASE.  P. 221. 

THE COMMISSARIAT FOR JUSTICE IS EMPOWERED TO INTERPRET EXISTING
RUSSIAN LAW; ITS DECLARATION AS TO THE INTENDED EXTRATERRITORIAL EFFECT
OF THE NATIONALIZATION DECREE IS CONCLUSIVE. 

10.  CLAIMS OF THE KIND HERE IN QUESTION WERE EMBRACED IN THE
LITVINOV ASSIGNMENT.  P. 224. 

11.  THE LITVINOV ASSIGNMENT IS BROAD AND INCLUSIVE AS TO THE CLAIMS
EMBRACED.  ITS PURPOSE TO ELIMINATE ALL POSSIBLE SOURCES OF FRICTION
BETWEEN THE COUNTRIES REQUIRES THAT IT BE CONSTRUED LIBERALLY.  P.
224. 

12.  INCIDENTLY TO ITS RECOGNITION BY THE UNITED STATES IN 1933, THE
RUSSIAN GOVERNMENT, BY THE LITVINOV ASSIGNMENT, ASSIGNED CERTAIN CLAIMS
TO THE UNITED STATES.  PREVIOUSLY, THE RUSSIAN GOVERNMENT HAD BY DECREE
NATIONALIZED THE INSURANCE BUSINESS.  A BALANCE OF THE ASSETS OF A NEW
YORK BRANCH OF A RUSSIAN INSURANCE CORPORATION, REMAINING AFTER THE
PAYMENT OF DOMESTIC CREDITORS, WAS CLAIMED BY THE UNITED STATES,
SEEKING TO PROTECT CLAIMS WHICH IT HELD, AND CLAIMS OF ITS NATIONALS,
AGAINST RUSSIA OR ITS NATIONALS.  A NEW YORK STATE COURT DIRECTED OTHER
DISTRIBUTION OF THE ASSETS.  HELD: 

BY THE NATIONALIZATION DECREE, THE PROPERTY IN QUESTION BECAME VESTED
IN THE RUSSIAN GOVERNMENT; THE RIGHT OF THE RUSSIAN GOVERNMENT PASSED
TO THE UNITED STATES UNDER THE LITVINOV ASSIGNMENT; AND THE UNITED
STATES IS ENTITLED TO THE PROPERTY AS AGAINST THE CORPORATION AND ITS
FOREIGN CREDITORS.  P. 234. 

13.  ALTHOUGH ALIENS ARE ENTITLED TO THE PROTECTION OF THE FIFTH
AMENDMENT, THAT AMENDMENT DOES NOT PRECLUDE GIVING FULL FORCE AND
EFFECT TO THE LITVINOV ASSIGNMENT.  P. 228. 

14.  THE FEDERAL GOVERNMENT IS NOT BARRED BY THE FIFTH AMENDMENT FROM
SECURING FOR ITSELF AND ITS NATIONALS PRIORITY OVER CREDITORS WHO ARE
NATIONALS OF FOREIGN COUNTRIES AND WHOSE CLAIMS AROSE ABROAD.  P. 228. 

THE FACT THAT NEW YORK HAS MARSHALED THE CLAIMS OF THE FOREIGN
CREDITORS HERE INVOLVED AND AUTHORIZED THEIR PAYMENT DOES NOT EXCEPT
THEM FROM THE APPLICATION OF THIS PRINCIPLE. 

15.  THE POWERS OF THE PRESIDENT IN THE CONDUCT OF FOREIGN RELATIONS
INCLUDED THE POWER, WITHOUT CONSENT OF THE SENATE, TO DETERMINE THE
PUBLIC POLICY OF THE UNITED STATES WITH RESPECT TO THE RUSSIAN
NATIONALIZATION DECREES.  P. 229. 

16.  THE POWER OF THE PRESIDENT IN RESPECT TO THE RECOGNITION OF A
FOREIGN GOVERNMENT, INCLUDES THE POWER TO REMOVE SUCH OBSTACLES TO FULL
RECOGNITION AS THE SETTLEMENT OF CLAIMS OF OUR NATIONALS.  P. 229. 

RECOGNITION OF THE RUSSIAN GOVERNMENT AND THE LITVINOV ASSIGNMENT
WERE INTERDEPENDENT. 

17.  THE DECISION OF THE EXECUTIVE WITH RESPECT TO THE RECOGNITION OF
THE RUSSIAN GOVERNMENT AND ACCEPTANCE OF THE LITVINOV ASSIGNMENT ARE
CONCLUSIVE ON THE COURTS.  P. 230. 

18.  STATE LAW MUST YIELD WHEN IT IS INCONSISTENT WITH OR IMPAIRS THE
POLICY OR PROVISIONS OF A TREATY OR OF AN INTERNATIONAL COMPACT OR
AGREEMENT.  P. 230. 

19.  ENFORCEMENT IN THIS CASE OF THE POLICY OF THE STATE OF NEW YORK
WOULD CONFLICT WITH THE FEDERAL POLICY, WHETHER THE STATE'S POLICY WAS
PREMISED ON THE ABSENCE OF EXTRATERRITORIAL EFFECT OF THE RUSSIAN
DECREES, THE CONCEPTION OF THE NEW YORK BRANCH AS A DISTINCT JURISTIC
PERSONALITY, OR DISAPPROVAL BY NEW YORK OF THE RUSSIAN PROGRAM OF
NATIONALIZATION.  P. 231. 

20.  POWER OVER EXTERNAL AFFAIRS IS NOT SHARED BY THE STATES; IT IS
VESTED EXCLUSIVELY IN THE NATIONAL GOVERNMENT.  P. 233. 

UNITED STATES V. PINK, SUPERINTENDENT OF INSURANCE OF THE STATE OF NEW
YORK, ET AL. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 313 U.S. 553, TO REVIEW A JUDGMENT AFFIRMING THE
DISMISSAL OF THE COMPLAINT IN A SUIT BY THE UNITED STATES TO RECOVER A
BALANCE OF THE ASSETS OF THE NEW YORK BRANCH OF A RUSSIAN INSURANCE
COMPANY.  SEE 259 APP. DIV. 871, 20 N.Y.S.2D 665. 

THE STATE COURTS ARE WITHOUT POWER TO DENY EFFECT TO THE SOVIET
NATIONALIZATION DECREES UPON GROUNDS OF A STATE POLICY AGAINST
CONFISCATION.  UNITED STATES V. BELMONT, 301 U.S. 324. 

THE AUTHORITY OF THE BELMONT CASE IS NOT LIMITED BY GUARANTY TRUST
CO. V. UNITED STATES, 304 U.S. 126.  IN THAT CASE, APART FROM THE
HOLDING WITH RESPECT TO SOVEREIGN IMMUNITY, AN ISSUE NOT HERE INVOLVED,
THE DECISION WAS MERELY THAT DEFENSES TO THE MERITS OF AN ASSIGNED
CLAIM WHICH WOULD BE AVAILABLE UNDER LOCAL LAW REGARDLESS OF THE
OWNERSHIP OF THE CLAIM WERE NOT INTENDED TO BE BARRED BY THE LITVINOV
ASSIGNMENT.  THE QUESTION HERE IS WHETHER THE STATES HAVE POWER TO DENY
ENFORCEMENT OF A VALID CLAIM SIMPLY BECAUSE THE NATIONALIZATION DECREES
UNDER WHICH OWNERSHIP OF SUCH CLAIM WAS TRANSFERRED FROM THE INSURANCE
COMPANY TO THE SOVIET GOVERNMENT ARE CONSIDERED CONTRARY TO THE MORAL
PRINCIPLES OF THE FORUM. 

THE EXECUTIVE DEPARTMENT, IN RECOGNIZING THE SOVIET GOVERNMENT AND
ACCEPTING THE LITVINOV ASSIGNMENT, HAS ESTABLISHED AS THE POLICY OF THE
NATION THAT, IN ORDER TO SETTLE ALL QUESTIONS OUTSTANDING BETWEEN THE
TWO GOVERNMENTS, AND PARTICULARLY IN ORDER TO PROVIDE A METHOD FOR THE
SETTLEMENT OF AMERICAN CLAIMS AGAINST THE SOVIET GOVERNMENT, NO
OBJECTION SHOULD BE ASSERTED TO THE SOVIET NATIONALIZATION OF THE
PROPERTY OF RUSSIAN NATIONALS, WHEREVER SITUATED.  THIS EXECUTIVE
POLICY, WHICH THE EXECUTIVE DEPARTMENT HAD CONSTITUTIONAL POWER TO
ADOPT, IS IN CONFLICT WITH THE LOCAL POLICY ANNOUNCED BY THE COURT
BELOW; AND UNDER THE SUPREMACY CLAUSE, OR EVEN APART FROM THAT CLAUSE,
THE STATE POLICY MUST YIELD. 

THE VALIDITY OF THE FEDERAL POLICY, IF EMBODIED IN A FORMAL TREATY,
WOULD NOT BE OPEN TO DOUBT, EVEN IF IT BE ASSUMED THAT THE STATES HAVE
CONCURRENT POWER TO REGULATE THE SUBJECT IN THE SILENCE OF THE FEDERAL
GOVERNMENT.  SANTOVINCENZO V. EGAN, 284 U.S. 30; HAUENSTEIN V. LYNHAM,
100 U.S. 483; SULLIVAN V. KIDD, 254 U.S. 433; ASAKURA V. SEATTLE, 265
U.S. 332; MISSOURI V. HOLLAND, 252 U.S. 416; TERRACE V. THOMPSON, 263
U.S. 197, 222-224; FRICK V. WEBB, 263 U.S. 326; HINES V. DAVIDOWITZ,
312 U.S. 52, 69, FN.  THE SOLE ISSUE WITH RESPECT TO THE VALIDITY OF
THE EXECUTIVE POLICY, THEREFORE, IS WHETHER THE POWERS OF THE PRESIDENT
IN THE CONDUCT OF FOREIGN RELATIONS INCLUDE THE POWER, WITHOUT THE
CONSENT OF THE SENATE, TO DETERMINE THE PUBLIC POLICY OF THE UNITED
STATES WITH RESPECT TO THE SOVIET NATIONALIZATION DECREES.  THIS
QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE. 

IT IS SETTLED THAT "WHAT GOVERNMENT IS TO BE REGARDED HERE AS
REPRESENTATIVE OF A FOREIGN SOVEREIGN STATE IS A POLITICAL RATHER THAN
A JUDICIAL QUESTION, AND IS TO BE DETERMINED BY THE POLITICAL
DEPARTMENT OF THE GOVERNMENT."  GUARANTY TRUST CO. V. UNITED STATES,
304 U.S. 126, 137; GELSTON V. HOYT, 3 WHEAT.  246, 323; JONES V. UNITED
STATES, 137 U.S. 202, 212.  THE AUTHORITY OF THE POLITICAL DEPARTMENT
IS NOT LIMITED, HOWEVER, TO THE DETERMINATION OF THE GOVERNMENT TO BE
RECOGNIZED.  THE PRESIDENT IS ALSO EMPOWERED TO DETERMINE THE POLICY TO
GOVERN THE QUESTION OF RECOGNITION.  OBJECTIONS TO THE PRESIDENT'S
DETERMINATION OF THE GOVERNMENT "AS WELL AS TO THE UNDERLYING POLICY"
MUST BE ADDRESSED TO THE POLITICAL DEPARTMENT.  GUARANTY TRUST CO. V.
UNITED STATES, SUPRA, AT 137-138.  SUCH HAS LONG BEEN THE SETTLED
DOCTRINE OF THIS COURT.  KENNETT V. CHAMBERS, 14 HOW.  38, 50. 

THE POWER TO FORMULATE POLICY MAY ALSO BE RESTED ON THE PRESIDENT'S
POWER TO ENTER RELATED AGREEMENTS FOR THE SETTLEMENT OF OUTSTANDING
QUESTIONS AFFECTING THE DETERMINATION OF THE QUESTION OF RECOGNITION. 
LIMITED OR CONDITIONAL RECOGNITION IS WELL KNOWN TO INTERNATIONAL LAW
AND IS OFTEN A NECESSARY INSTRUMENT IN THE CONDUCT OF FOREIGN
RELATIONS.  1 MOORE, DIG.  INT.  LAW, SEC. 27, PP. 73-74; 1 HACKWORTH,
DIG.  INT.  LAW, SECS. 34, 48. 

INDEPENDENTLY OF HIS POWERS IN RESPECT OF RECOGNITION, THE PRESIDENT
HAS POWER TO ESTABLISH A NATIONAL POLICY UNDER HIS AUTHORITY TO MAKE
AGREEMENTS WITH FOREIGN POWERS.  THE AUTHORITY OF THE PRESIDENT TO
ENTER INTO EXECUTIVE AGREEMENTS WITH FOREIGN NATIONS WITHOUT THE
CONSENT OF THE SENATE IS ESTABLISHED.  PRINCIPALITY OF MONACO V.
MISSISSIPPI, 292 U.S. 313, 331; UNITED STATES V. CURTISS-WRIGHT CORP.,
299 U.S. 304, 306, 316; STATE OF RUSSIA V. NATIONAL CITY BANK, 69 F.2D
44, 48; CORWIN, THE PRESIDENT:  OFFICE AND POWERS, 228-240; SAYRE, THE
CONSTITUTIONALITY OF THE TRADE AGREEMENTS ACT, 39 COL. L. REV. 751;
LEVITAN, EXECUTIVE AGREEMENTS:  A STUDY OF THE EXECUTIVE IN THE CONTROL
OF THE FOREIGN RELATIONS OF THE UNITED STATES, 35 ILL. L. REV. 365;
MOORE, TREATIES AND EXECUTIVE AGREEMENTS, 20 POL.  SCI.  QUAR. 385, 389
392, 399-417.  THE LITVINOV ASSIGNMENT IS AN APPROPRIATE EXERCISE OF
THE POWER. 

NO DISCRIMINATION AGAINST A FUNDAMENTAL FOREIGN LAW ON MORAL GROUNDS
MAY BE MADE UNLESS THE POLITICAL DEPARTMENTS OF THE FEDERAL GOVERNMENT
DETERMINE THAT SUCH DISCRIMINATION DOES NOT CONFLICT WITH THE INTERESTS
OF THE NATION. 

DESPITE THE DISCUSSION OF THE SEPARATE JURISTIC ENTITY OF THE NEW
YORK BRANCH OF THE INSURANCE COMPANY, THE BASIS OF THE MOSCOW OPINION
WAS THE VIEW THAT THE SOVIET DECREES, BECAUSE OF THEIR CONFISCATORY
CHARACTER, ARE CONTRARY TO THE LOCAL PUBLIC POLICY.  UNDER ANY OTHER
CONSTRUCTION OF THE OPINION, THE DECISION WOULD BE SO PALPABLY WITHOUT
BASIS IN NEW YORK LAW AS TO REQUIRE INVOCATION OF THE RULE THAT, WHERE
A FEDERAL RIGHT IS ASSERTED, NEITHER PLAINLY UNTENABLE NON-FEDERAL
GROUNDS (POSTAL TEL. CABLE CO. V. NEWPORT, 247 U.S. 464, 475;
ENTERPRISE IRRIG.  DIST.  V. FARMERS' MUT. CANAL CO., 243 U.S. 157,
164; WARD V. BOARD OF COUNTY COMM'RS, 253 U.S. 17, 22; ANCIENT EGYPTIAN
ORDER V. MICHAUX, 279 U.S. 737, 745, 749) NOR ANY CLOAK OR PRETEXT TO
EVADE THE FEDERAL CLAIM (VANDALIA RAILROAD V. INDIANA EX REL. SOUTH
BEND, 207 U.S. 359, 367; LEATHE V. THOMAS, 207 U.S. 93, 99; DAVIS V.
WECHSLER, 263 U.S. 22, 24; FOX RIVER PAPER CO. V. RAILROAD COMMISSION,
274 U.S. 651, 655; MCCOY V. SHAW, 277 U.S. 302, 303-304) CAN PRECLUDE
THIS COURT FROM DECIDING THE FEDERAL QUESTION. 

THE DECISION IN THE MOSCOW CASE WAS CORRECT.  AFTER RECOGNITION OF
THE SOVIET GOVERNMENT THE STATE COURTS WERE BOUND TO RECOGNIZE ITS
DECREES EVEN THOUGH THEY WERE CONFISCATORY.  BUT THEY COULD CONSTRUE
THE DECREES AND DETERMINE THEIR EFFECT WITH RESPECT TO PROPERTY SITUATE
IN NEW YORK. 

THE LIQUIDATION PROCEEDINGS ARE IN REM.  UNITED STATES V. BELMONT,
301 U.S. 324; UNITED STATES V. BANK OF NEW YORK & TRUST CO., 296 U.S.
463; BANCO DE ESPANA V. FEDERAL RESERVE BANK, 114 F.2D 438, 442;
SULLIVAN V. STATE OF SAO PAULO, 122 F.2D 355.  THE FINAL ORDER IS
BINDING UPON THE WORLD AND FORECLOSES ANY INTEREST OF THE SOVIET
GOVERNMENT OR ITS ASSIGNEE, THE UNITED STATES GOVERNMENT. 

THE UNITED STATES IS BOUND BY THE PUBLIC POLICY OF NEW YORK IN THE
SAME MANNER AS PRIVATE LITIGANTS.  STANDARD OIL CO. V. UNITED STATES,
267 U.S. 76, 79; UNITED STATES V. THE THEKLA, 266 U.S. 328, 339; FOLK
V. UNITED STATES, 233 F. 177, 192; UNITED STATES V. MIDWAY NORTHERN OIL
CO., 232 U.S. 619. 

THE ENFORCEMENT BY THE COURTS OF NEW YORK OF FOREIGN LAWS AND DECREES
AFFECTING NEW YORK PROPERTY MAY NOT BE DEMANDED AS OF RIGHT.  NOR WILL
COMITY BE EXTENDED IF INTERVENING RIGHTS OF CITIZENS, OR FOREIGN
LITIGANTS, HAVE BEEN ESTABLISHED BY NEW YORK DECISIONS.  EACH STATE HAS
THE POWER TO DETERMINE FOR ITSELF THE CONDITIONS UPON WHICH PROPERTY
SITUATED WITHIN ITS TERRITORY, BOTH PERSONAL AND REAL, MAY BE ACQUIRED,
ENJOYED AND TRANSFERRED. 

RIGHTS WHICH HAVE BEEN ACQUIRED IN NEW YORK IN AND TO PROPERTY
SITUATE IN NEW YORK WILL BE PROTECTED BY THE NEW YORK COURTS, AND BY
THIS COURT, WHETHER THEY BELONG TO NON-RESIDENTS OR FOREIGNERS, OR TO
ITS OWN CITIZENS.  BARTH V. BACKUS, 140 N.Y. 230; MATTER OF PEOPLE, 242
N.Y. 148; FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION;
RUSSIAN VOLUNTEER FLEET V. UNITED STATES, 282 U.S. 481, 491, 492. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT BY THE UNITED STATES TO RECOVER THE ASSETS OF
THE NEW YORK BRANCH OF THE FIRST RUSSIAN INSURANCE CO. WHICH REMAINED
IN THE HANDS OF RESPONDENT AFTER THE PAYMENT OF ALL DOMESTIC
CREDITORS.  THE MATERIAL ALLEGATIONS OF THE COMPLAINT WERE, IN BRIEF,
AS FOLLOWS: 

THE FIRST RUSSIAN INSURANCE CO., ORGANIZED UNDER THE LAWS OF THE
FORMER EMPIRE OF RUSSIA, ESTABLISHED A NEW YORK BRANCH IN 1907.  IT
DEPOSITED WITH THE SUPERINTENDENT OF INSURANCE, PURSUANT TO THE LAWS OF
NEW YORK, CERTAIN ASSETS TO SECURE PAYMENT OF CLAIMS RESULTING FROM
TRANSACTIONS OF ITS NEW YORK BRANCH.  BY CERTAIN LAWS, DECREES,
ENACTMENTS AND ORDERS, IN 1918 AND 1919, THE RUSSIAN GOVERNMENT
NATIONALIZED THE BUSINESS OF INSURANCE AND ALL OF THE PROPERTY,
WHEREVER SITUATED, OF ALL RUSSIAN INSURANCE COMPANIES (INCLUDING THE
FIRST RUSSIAN INSURANCE CO.), AND DISCHARGED AND CANCELLED ALL THE
DEBTS OF SUCH COMPANIES AND THE RIGHTS OF ALL SHAREHOLDERS IN ALL SUCH
PROPERTY.  THE NEW YORK BRANCH OF THE FIRST RUSSIAN INSURANCE CO.
CONTINUED TO DO BUSINESS IN NEW YORK UNTIL 1925.  AT THAT TIME,
RESPONDENT, PURSUANT TO AN ORDER OF THE SUPREME COURT OF NEW YORK, TOOK
POSSESSION OF ITS ASSETS FOR A DETERMINATION AND REPORT UPON THE CLAIMS
OF THE POLICYHOLDERS AND CREDITORS IN THE UNITED STATES.  THEREAFTER,
ALL CLAIMS OF DOMESTIC CREDITORS, I.E., ALL CLAIMS ARISING OUT OF THE
BUSINESS OF THE NEW YORK BRANCH, WERE PAID BY RESPONDENT, LEAVING A
BALANCE IN HIS HANDS OF MORE THAN $1,000,000.  IN 1931, THE NEW YORK
COURT OF APPEALS (255 N.Y. 415, 175 N.E. 114) DIRECTED RESPONDENT TO
DISPOSE OF THAT BALANCE AS FOLLOWS: FIRST, TO PAY CLAIMS OF FOREIGN
CREDITORS WHO HAD FILED ATTACHMENT PRIOR TO THE COMMENCEMENT OF THE
LIQUIDATION PROCEEDING, AND ALSO SUCH CLAIMS AS WERE FILED PRIOR TO THE
ENTRY OF THE ORDER ON REMITTITUR OF THAT COURT; AND SECOND, TO PAY ANY
SURPLUS TO A QUORUM OF THE BOARD OF DIRECTORS OF THE COMPANY.  PURSUANT
TO THAT MANDATE, RESPONDENT PROCEEDED WITH THE LIQUIDATION OF THE
CLAIMS OF THE FOREIGN CREDITORS.  SOME PAYMENTS WERE MADE THEREON.  THE
MAJOR PORTION OF THE ALLOWED CLAIMS, HOWEVER, WERE NOT PAID, A STAY
HAVING BEEN GRANTED PENDING DISPOSITION OF THE CLAIM OF THE UNITED
STATES.  ON NOVEMBER 16, 1933, THE UNITED STATES RECOGNIZED THE UNION
OF SOVIET SOCIALIST REPUBLICS AS THE DE JURE GOVERNMENT OF RUSSIA AND
AS AN INCIDENT TO THAT RECOGNITION ACCEPTED AN ASSIGNMENT (KNOWN AS THE
LITVINOV ASSIGNMENT) OF CERTAIN CLAIMS.  FN1  THE LITVINOV ASSIGNMENT
WAS IN THE FORM OF A LETTER, DATED NOVEMBER 16, 1933, TO THE PRESIDENT
OF THE UNITED STATES FROM MAXIM LITVINOV, PEOPLE'S COMMISSAR FOR
FOREIGN AFFAIRS, READING AS FOLLOWS: 

"FOLLOWING OUR CONVERSATIONS I HAVE THE HONOR TO INFORM YOU THAT THE
GOVERNMENT OF THE UNION OF SOVIET SOCIALIST REPUBLICS AGREES THAT,
PREPARATORY TO A FINAL SETTLEMENT OF THE CLAIMS AND COUNTER CLAIMS
BETWEEN THE GOVERNMENTS OF THE UNION OF SOVIET SOCIALIST REPUBLICS AND
THE UNITED STATES OF AMERICA AND THE CLAIMS OF THEIR NATIONALS, THE
GOVERNMENT OF THE UNION OF SOVIET SOCIALIST REPUBLICS WILL NOT TAKE ANY
STEPS TO ENFORCE ANY DECISIONS OF COURTS OR INITIATE ANY NEW
LITIGATIONS FOR THE AMOUNTS ADMITTED TO BE DUE OR THAT MAY BE FOUND TO
BE DUE IT, AS THE SUCCESSOR OF PRIOR GOVERNMENTS OF RUSSIA, OR
OTHERWISE, FROM AMERICAN NATIONALS, INCLUDING CORPORATIONS, COMPANIES,
PARTNERSHIPS, OR ASSOCIATIONS, AND ALSO THE CLAIM AGAINST THE UNITED
STATES OF THE RUSSIAN VOLUNTEER FLEET, NOW IN LITIGATION IN THE UNITED
STATES COURT OF CLAIMS, AND WILL NOT OBJECT TO SUCH AMOUNTS BEING
ASSIGNED AND DOES HEREBY RELEASE AND ASSIGN ALL SUCH AMOUNTS TO THE
GOVERNMENT OF THE UNITED STATES, THE GOVERNMENT OF THE UNION OF SOVIET
SOCIALIST REPUBLICS TO BE DULY NOTIFIED IN EACH CASE OF ANY AMOUNT
REALIZED BY THE GOVERNMENT OF THE UNITED STATES FROM SUCH RELEASE AND
ASSIGNMENT. 

"THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST REPUBLICS FURTHER
AGREES, PREPARATORY TO THE SETTLEMENT REFERRED TO ABOVE NOT TO MAKE ANY
CLAIMS WITH RESPECT TO: 

"(A)  JUDGMENTS RENDERED OR THAT MAY BE RENDERED BY AMERICAN COURTS
IN SO FAR AS THEY RELATE TO PROPERTY, OR RIGHTS, OR INTERESTS THEREIN,
IN WHICH THE UNION OF SOVIET SOCIALIST REPUBLICS OR ITS NATIONALS MAY
HAVE HAD OR MAY CLAIM TO HAVE AN INTEREST; OR, 

"(B)  ACTS DONE OR SETTLEMENTS MADE BY OR WITH THE GOVERNMENT OF THE
UNITED STATES, OR PUBLIC OFFICIALS IN THE UNITED STATES, OR ITS
NATIONALS, RELATING TO PROPERTY, CREDITS, OR OBLIGATIONS OF ANY
GOVERNMENT OF RUSSIA OR NATIONALS THEREOF." 

THIS WAS ACKNOWLEDGED BY THE PRESIDENT ON THE SAME DATE.  THE
ACKNOWLEDGMENT, AFTER SETTING FORTH THE TERMS OF THE ASSIGNMENT,
CONCLUDED: 

"I AM GLAD TO HAVE THESE UNDERTAKINGS BY YOUR GOVERNMENT AND I SHALL
BE PLEASED TO NOTIFY YOUR GOVERNMENT IN EACH CASE OF ANY AMOUNT
REALIZED BY THE GOVERNMENT OF THE UNITED STATES FROM THE RELEASE AND
ASSIGNMENT TO IT OF THE AMOUNTS ADMITTED TO BE DUE, OR THAT MAY BE
FOUND TO BE DUE, THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST
REPUBLICS, AND OF THE AMOUNT THAT MAY BE FOUND TO BE DUE ON THE CLAIM
OF THE RUSSIAN VOLUNTEER FLEET."    ON NOVEMBER 14, 1934, THE UNITED
STATES BROUGHT AN ACTION IN THE FEDERAL DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, SEEKING TO RECOVER THE ASSETS IN THE HANDS OF
RESPONDENT.  THIS COURT HELD IN UNITED STATES V. BANK OF NEW YORK &
TRUST CO., 296 U.S. 463, THAT THE WELL SETTLED "PRINCIPLES GOVERNING
THE CONVENIENT AND ORDERLY ADMINISTRATION OF JUSTICE REQUIRE THAT THE
JURISDICTION OF THE STATE COURT SHOULD BE RESPECTED" (P. 480); AND
THAT, WHATEVER MIGHT BE "THE EFFECT OF RECOGNITION" OF THE RUSSIAN
GOVERNMENT, IT DID NOT TERMINATE THE STATE PROCEEDINGS.  P. 479.  THE
UNITED STATES WAS REMITTED TO THE STATE COURT FOR DETERMINATION OF ITS
CLAIM, NO OPINION BEING INTIMATED ON THE MERITS.  P. 481.  THE UNITED
STATES THEN MOVED FOR LEAVE TO INTERVENE IN THE LIQUIDATION
PROCEEDINGS.  ITS MOTION WAS DENIED "WITHOUT PREJUDICE TO THE
INSTITUTION OF THE TIME-HONORED FORM OF ACTION."  THAT ORDER WAS
AFFIRMED ON APPEAL. 

THEREAFTER, THE PRESENT SUIT WAS INSTITUTED IN THE SUPREME COURT OF
NEW YORK.  THE DEFENDANTS, OTHER THAN RESPONDENT, WERE CERTAIN
DESIGNATED POLICYHOLDERS AND OTHER CREDITORS WHO HAD PRESENTED IN THE
LIQUIDATION PROCEEDINGS CLAIMS AGAINST THE CORPORATION.  THE COMPLAINT
PRAYED, INTER ALIA, THAT THE UNITED STATES BE ADJUDGED TO BE THE SOLE
AND EXCLUSIVE OWNER ENTITLED TO IMMEDIATE POSSESSION OF THE ENTIRE
SURPLUS FUND IN THE HANDS OF THE RESPONDENT. 

RESPONDENT'S ANSWER DENIED THE ALLEGATIONS OF THE COMPLAINT THAT
TITLE TO THE FUNDS IN QUESTION PASSED TO THE UNITED STATES AND THAT THE
RUSSIAN DECREES HAD THE EFFECT CLAIMED.  IT ALSO SET FORTH VARIOUS
AFFIRMATIVE DEFENSES - THAT THE ORDER OF DISTRIBUTION PURSUANT TO THE
DECREE IN 255 N.Y. 415, 175 N.E. 114, COULD NOT BE AFFECTED BY THE
LITVINOV ASSIGNMENT; THAT THE LITVINOV ASSIGNMENT WAS UNENFORCEABLE
BECAUSE IT WAS CONDITIONED UPON A FINAL SETTLEMENT OF CLAIMS AND
COUNTERCLAIMS WHICH HAD NOT BEEN ACCOMPLISHED; THAT UNDER RUSSIAN LAW
THE NATIONALIZATION DECREES IN QUESTION HAD NO EFFECT ON PROPERTY NOT
FACTUALLY TAKEN INTO POSSESSION BY THE RUSSIAN GOVERNMENT PRIOR TO MAY
22, 1922; THAT THE RUSSIAN DECREES HAD NO EXTRATERRITORIAL EFFECT,
ACCORDING TO RUSSIAN LAW; THAT IF THE DECREES WERE GIVEN
EXTRATERRITORIAL EFFECT, THEY WERE CONFISCATORY AND THEIR RECOGNITION
WOULD BE UNCONSTITUTIONAL AND CONTRARY TO THE PUBLIC POLICY OF THE
UNITED STATES AND OF THE STATE OF NEW YORK; AND THAT THE UNITED STATES,
UNDER THE LITVINOV ASSIGNMENT, ACTED MERELY AS A COLLECTION AGENCY FOR
THE RUSSIAN GOVERNMENT AND HENCE WAS FORECLOSED FROM ASSERTING ANY
TITLE TO THE PROPERTY IN QUESTION. 

THE ANSWER WAS FILED IN MARCH, 1938.  IN APRIL, 1939, THE NEW YORK
COURT OF APPEALS DECIDED MOSCOW FIRE INS. CO. V. BANK OF NEW YORK &
TRUST CO., 280 N.Y. 286, 20 N.E.2D 758.  IN MAY, 1939, RESPONDENT (BUT
NOT THE OTHER DEFENDANTS) MOVED, PURSUANT TO RULE 113 OF THE RULES OF
THE NEW YORK CIVIL PRACTICE ACT AND SEC. 476 OF THAT ACT, FOR AN ORDER
DISMISSING THE COMPLAINT AND AWARDING SUMMARY JUDGMENT IN FAVOR OF
RESPONDENT "ON THE GROUND THAT THERE IS NO MERIT TO THE ACTION AND THAT
IT IS INSUFFICIENT IN LAW."  THE AFFIDAVIT IN SUPPORT OF THE MOTION
STATED THAT THERE WAS "NO DISPUTE AS TO THE FACTS"; THAT THE SEPARATE
DEFENSES TO THE COMPLAINT "NEED NOT NOW BE CONSIDERED FOR THE COMPLAINT
STANDING ALONE IS INSUFFICIENT IN LAW"; THAT THE FACTS IN THE MOSCOW
CASE AND THE INSTANT ONE, SO FAR AS MATERIAL, WERE "PARALLEL" AND THE
RUSSIAN DECREES THE SAME; AND THAT THE MOSCOW CASE AUTHORITATIVELY
SETTLED THE PRINCIPLES OF LAW GOVERNING THE INSTANT ONE.  THE AFFIDAVIT
READ IN OPPOSITION TO THE MOTION STATED THAT A PETITION FOR CERTIORARI
IN THE MOSCOW CASE WAS ABOUT TO BE FILED IN THIS COURT; THAT THE MOTION
WAS PREMATURE AND SHOULD BE DENIED, OR DECISION THEREON WITHHELD
PENDING THE FINAL DECISION OF THIS COURT.  ON JUNE 29, 1939, THE
SUPREME COURT OF NEW YORK GRANTED THE MOTION AND DISMISSED THE
COMPLAINT "ON THE MERITS," CITING ONLY THE MOSCOW CASE IN SUPPORT OF
ITS ACTION.  ON SEPTEMBER 2, 1939, A PETITION FOR CERTIORARI IN THE
MOSCOW CASE WAS FILED IN THIS COURT.  THE JUDGMENT IN THAT CASE WAS
AFFIRMED HERE BY AN EQUALLY DIVIDED COURT.  309 U.S. 624. 
SUBSEQUENTLY, THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK
AFFIRMED, WITHOUT OPINION, THE ORDER OF DISMISSAL IN THE INSTANT CASE. 
THE COURT OF APPEALS AFFIRMED WITH A PER CURIAM OPINION (284 N.Y. 555,
32 N.E.2D 552) WHICH, AFTER NOTING THAT THE DECISION BELOW WAS "IN
ACCORD WITH THE DECISION" IN THE MOSCOW CASE, STATED: 

"THREE OF THE JUDGES OF THIS COURT CONCURRED IN A FORCEFUL OPINION
DISSENTING FROM THE COURT'S DECISION IN THAT CASE, BUT THE DECISION
LEFT OPEN NO QUESTION WHICH HAS BEEN ARGUED UPON THIS APPEAL.  WE ARE
AGREED THAT WITHOUT AGAIN CONSIDERING SUCH QUESTIONS THIS COURT SHOULD,
IN DETERMINING TITLE TO ASSETS OF FIRST RUSSIAN INSURANCE COMPANY,
DEPOSITED IN THIS STATE, APPLY IN THIS CASE THE SAME RULES OF LAW WHICH
THE COURT APPLIED IN THE EARLIER CASE IN DETERMINING TITLE TO THE
ASSETS OF MOSCOW FIRE INSURANCE COMPANY DEPOSITED HERE." 

WE GRANTED THE PETITION FOR CERTIORARI BECAUSE OF THE NATURE AND
PUBLIC IMPORTANCE OF THE QUESTIONS RAISED. 

FIRST. RESPONDENT INSISTS THAT THE COMPLAINT IN THIS ACTION WAS
IDENTICAL IN SUBSTANCE AND SOUGHT THE SAME RELIEF AS THE PETITION OF
THE UNITED STATES IN THE MOSCOW CASE, AND THAT HIS ANSWER SET UP THE
SAME DEFENSES AS WERE SUCCESSFULLY SUSTAINED AGAINST THE UNITED STATES
BY THE DEFENDANTS IN THAT CASE.  HE ALSO MAINTAINS THAT BOTH PARTIES
AGREED, ON THE MOTION FOR SUMMARY JUDGMENT, THAT THE DECISION IN THE
MOSCOW CASE GOVERNED THIS CAUSE, LEAVING NO ISSUES TO BE TRIED.  WE
AGREE WITH THOSE CONTENTIONS.  IT IS IN ACCORD NOT ONLY WITH THE MOTION
PAPERS, BUT ALSO WITH THE RULING OF THE NEW YORK COURT OF APPEALS THAT
THE MOSCOW CASE "LEFT OPEN NO QUESTION WHICH HAS BEEN ARGUED UPON THIS
APPEAL."  IN VIEW OF THAT RULING, WE ARE NOT FREE TO INQUIRE, AS
PETITIONER SUGGESTS, INTO THE PROPRIETY UNDER NEW YORK PRACTICE OF
GROUNDING THE MOTION FOR SUMMARY JUDGMENT ON THE RECORD IN THE MOSCOW
CASE.  THAT IS DISTINCTLY A QUESTION OF STATE LAW, ON WHICH NEW YORK
HAS THE LAST WORD. 

BUT IT DOES NOT FOLLOW, AS RESPONDENT URGES, THAT THE WRIT SHOULD BE
DISMISSED AS IMPROVIDENTLY GRANTED.  THE MOSCOW CASE IS NOT RES
JUDICATA, SINCE RESPONDENT WAS NOT A PARTY TO THAT SUIT.  STONE V.
FARMERS' BANK OF KENTUCKY, 174 U.S. 409; RUDD V. CORNELL, 171 N.Y. 114,
127-128, 63 N.E.2D 823; ST. JOHN V. FOWLER, 229 N.Y. 270, 274, 128 N.E.
199.  NOR WAS OUR AFFIRMANCE OF THE JUDGMENT IN THAT CASE BY AN EQUALLY
DIVIDED COURT AN AUTHORITATIVE PRECEDENT.  WHILE IT WAS CONCLUSIVE AND
BINDING UPON THE PARTIES AS RESPECTS THAT CONTROVERSY (DURANT V. ESSEX
COMPANY, 7 WALL.  107), THE LACK OF AN AGREEMENT BY A MAJORITY OF THE
COURT ON THE PRINCIPLES OF LAW INVOLVED PREVENTS IT FROM BEING AN
AUTHORITATIVE DETERMINATION FOR OTHER CASES.  HERTZ V. WOODMAN, 218
U.S. 205, 213-214. 

THE UPSHOT OF THE MATTER IS THAT WE NOW REACH THE ISSUES IN THE
MOSCOW CASE INSOFAR AS THEY ARE EMBRACED IN THE PLEADINGS IN THIS
CASE.  AND THERE IS NO REASON WHY WE CANNOT TAKE JUDICIAL NOTICE OF THE
RECORD IN THIS COURT OF THE MOSCOW CASE.  BIENVILLE WATER SUPPLY CO. V.
MOBILE, 186 U.S. 212, 217; DIMMICK V. TOMPKINS, 194 U.S. 540, 548;
FRESHMAN V. ATKINS, 269 U.S. 121, 124. 

SECOND.  THE NEW YORK COURT OF APPEALS HELD IN THE MOSCOW CASE THAT
THE RUSSIAN DECREES  FN2  IN QUESTION HAD NO EXTRATERRITORIAL EFFECT. 
IF THAT IS TRUE, IT IS DECISIVE OF THE PRESENT CONTROVERSY.  FOR THE
UNITED STATES ACQUIRED, UNDER THE LITVINOV ASSIGNMENT, ONLY SUCH RIGHTS
AS RUSSIA HAD.  GUARANTY TRUST CO. V. UNITED STATES, 304 U.S. 126,
143.  IF THE RUSSIAN DECREES LEFT THE NEW YORK ASSETS OF THE RUSSIAN
INSURANCE COMPANIES UNAFFECTED, THEN RUSSIA HAD NOTHING HERE TO
ASSIGN.  BUT THAT QUESTION OF FOREIGN LAW IS NOT TO BE DETERMINED
EXCLUSIVELY BY THE STATE COURT.  THE CLAIM OF THE UNITED STATES BASED
ON THE LITVINOV ASSIGNMENT RAISES A FEDERAL QUESTION.  UNITED STATES V.
BELMONT, 301 U.S. 324.  THIS COURT WILL REVIEW OR INDEPENDENTLY
DETERMINE ALL QUESTIONS ON WHICH A FEDERAL RIGHT IS NECESSARILY
DEPENDENT.  UNITED STATES V. ANSONIA BRASS & COPPER CO., 218 U.S. 452,
462-463, 471; ANCIENT EGYPTIAN ORDER V. MICHAUX, 279 U.S. 737, 744-745;
BROAD RIVER POWER CO. V. SOUTH CAROLINA, 281 U.S. 537, 540; PIERRE V.
LOUISIANA, 306 U.S. 354, 358.  HERE, TITLE OBTAINED UNDER THE LITVINOV
ASSIGNMENT DEPENDS ON A CORRECT INTERPRETATION OF RUSSIAN LAW.  AS IN
CASES ARISING UNDER THE FULL FAITH AND CREDIT CLAUSE (HUNTINGTON V.
ATTRILL, 146 U.S. 657, 684; ADAM V. SAENGER, 303 U.S. 59, 64), THESE
QUESTIONS OF FOREIGN LAW ON WHICH THE ASSERTED FEDERAL RIGHT IS BASED
ARE NOT PECULIARLY WITHIN THE COGNIZANCE OF THE LOCAL COURTS.  WHILE
DEFERENCE WILL BE GIVEN TO THE DETERMINATION OF THE STATE COURT, ITS
CONCLUSION IS NOT ACCEPTED AS FINAL. 

WE DO NOT STOP TO REVIEW ALL THE EVIDENCE IN THE VOLUMINOUS RECORD OF
THE MOSCOW CASE BEARING ON THE QUESTION OF THE EXTRATERRITORIAL EFFECT
OF THE RUSSIAN DECREES OF NATIONALIZATION, EXCEPT TO NOTE THAT THE
EXPERT TESTIMONY TENDERED BY THE UNITED STATES GAVE GREAT CREDENCE TO
ITS POSITION.  SUBSEQUENTLY TO THE HEARINGS IN THAT CASE, HOWEVER, THE
UNITED STATES, THROUGH DIPLOMATIC CHANNELS, REQUESTED THE COMMISSARIAT
FOR FOREIGN AFFAIRS OF THE RUSSIAN GOVERNMENT TO OBTAIN AN OFFICIAL
DECLARATION BY THE COMMISSARIAT FOR JUSTICE OF THE R.S.F.S.R. WHICH
WOULD MAKE CLEAR, AS A MATTER OF RUSSIAN LAW, THE INTENDED EFFECT OF
THE RUSSIAN DECREE  FN3  NATIONALIZING INSURANCE COMPANIES UPON THE
FUNDS OF SUCH COMPANIES OUTSIDE OF RUSSIA.  THE OFFICIAL DECLARATION,
DATED NOVEMBER 28, 1937, READS AS FOLLOWS: 

"THE PEOPLE'S COMMISSARIAT FOR JUSTICE OF THE R.S.F.S.R. CERTIFIES
THAT BY VIRTUE OF THE LAWS OF THE ORGANS OF THE SOVIET GOVERNMENT ALL
NATIONALIZED FUNDS AND PROPERTY OF FORMER PRIVATE ENTERPRISES AND
COMPANIES, IN PARTICULAR BY VIRTUE OF THE DECREE OF NOVEMBER 28,
1918(COLLECTION OF LAWS OF THE R.S.F.S.R., 1918, NO. 86, ARTICLE 904),
THE FUNDS AND PROPERTY OF FORMER INSURANCE COMPANIES, CONSTITUTE THE
PROPERTY OF THE STATE, IRRESPECTIVE OF THE NATURE OF THE PROPERTY AND
IRRESPECTIVE OF WHETHER IT WAS SITUATED WITHIN THE TERRITORIAL LIMITS
OF THE R.S.F.S.R. OR ABROAD." 

THE REFEREE IN THE MOSCOW CASE FOUND, AND THE EVIDENCE SUPPORTED HIS
FINDING, THAT THE COMMISSARIAT FOR JUSTICE HAS POWER TO INTERPRET
EXISTING RUSSIAN LAW.  THAT BEING TRUE, THIS OFFICIAL DECLARATION IS
CONCLUSIVE SO FAR AS THE INTENDED EXTRATERRITORIAL EFFECT OF THE
RUSSIAN DECREE IS CONCERNED.  THIS OFFICIAL DECLARATION WAS BEFORE THE
COURT BELOW, THOUGH IT WAS NOT A PART OF THE RECORD.  IT WAS TENDERED
PURSUANT TO SEC. 391 OF THE NEW YORK CIVIL PRACTICE ACT, AS AMENDED BY
L. 1933, C. 690.  FN4  IN NEW YORK, IT WOULD SEEM THAT FOREIGN LAW MUST
BE FOUND BY THE COURT (OR IN CASE OF A JURY TRIAL, BINDING INSTRUCTIONS
MUST BE GIVEN), THOUGH PROCEDURAL CONSIDERATIONS REQUIRE IT TO BE
PRESENTED AS A QUESTION OF FACT.  FITZPATRICK V. INTERNATIONAL RAILWAY
CO., 252 N.Y. 127, 169 N.E. 112; PETROGRADSKY M.K. BANK V. NATIONAL
CITY BANK, 253 N.Y. 23, 170 N.E. 479.  AND UNDER SEC. 391, AS AMENDED,
IT IS CLEAR THAT THE NEW YORK APPELLATE COURT HAS AUTHORITY TO CONSIDER
APPROPRIATE DECISIONS INTERPRETING FOREIGN LAW EVEN THOUGH THEY ARE
RENDERED SUBSEQUENTLY TO THE TRIAL.  LOS ANGELES INVESTMENT SECURITIES
CORP. V. JOSLYN, 282 N.Y. 438, 26 N.E.2D 968.  WE CAN TAKE SUCH NOTICE
OF THE FOREIGN LAW AS THE NEW YORK COURT COULD HAVE TAKEN.  FN5  ADAM
V. SAENGER, SUPRA.  WE CONCLUDE THAT THIS OFFICIAL DECLARATION OF
RUSSIAN LAW WAS NOT ONLY PROPERLY BEFORE THE COURT ON APPEAL, BUT ALSO
THAT IT WAS EMBRACED WITHIN THOSE "WRITTEN AUTHORITIES" WHICH SEC. 391
AUTHORIZES THE COURT TO CONSIDER, EVEN THOUGH NOT INTRODUCED IN
EVIDENCE ON THE TRIAL.  FOR, WHILE IT WAS NOT "PRINTED," IT WOULD SEEM
TO BE "OTHER WRITTEN LAW" OF UNQUESTIONED AUTHENTICITY AND AUTHORITY,
WITHIN THE MEANING OF SEC. 391. 

WE HOLD THAT, SO FAR AS ITS INTENDED EFFECT  FN6  IS CONCERNED, THE
RUSSIAN DECREE EMBRACED THE NEW YORK ASSETS OF THE FIRST RUSSIAN
INSURANCE CO. 

THIRD.  THE QUESTION OF WHETHER THE DECREE SHOULD BE GIVEN
EXTRATERRITORIAL EFFECT IS, OF COURSE, A DISTINCT MATTER.  ONE PRIMARY
ISSUE RAISED IN THAT CONNECTION IS WHETHER, UNDER OUR CONSTITUTIONAL
SYSTEM, NEW YORK LAW CAN BE ALLOWED TO STAND IN THE WAY. 

THE DECISION OF THE NEW YORK COURT OF APPEALS IN THE MOSCOW CASE IS
UNEQUIVOCAL.  IT HELD THAT "UNDER THE LAW OF THIS STATE SUCH
CONFISCATORY DECREES DO NOT AFFECT THE PROPERTY CLAIMED HERE" (280 N.Y.
314, 20 N.E.2D 769); THAT THE PROPERTY OF THE NEW YORK BRANCH ACQUIRED
A "CHARACTER OF ITS OWN" WHICH WAS "DEPENDENT" ON THE LAW OF NEW YORK
(P. 310); THAT NO "RULE OF COMITY AND NO ACT OF THE UNITED STATES
GOVERNMENT CONSTRAINS THIS STATE TO ABANDON ANY PART OF ITS CONTROL OR
TO SHARE IT WITH A FOREIGN STATE" (P. 310); THAT, ALTHOUGH THE RUSSIAN
DECREE EFFECTED THE DEATH OF THE PARENT COMPANY, THE SITUS OF THE
PROPERTY OF THE NEW YORK BRANCH WAS IN NEW YORK; AND THAT NO PRINCIPLE
OF LAW FORCES NEW YORK TO FORSAKE THE METHOD OF DISTRIBUTION AUTHORIZED
IN THE EARLIER APPEAL (255 N.Y. 415, 175 N.E. 114) AND TO HOLD THAT
"THE METHOD WHICH IN 1931 CONFORMED TO THE EXACTIONS OF JUSTICE AND
EQUITY MUST BE REJECTED BECAUSE RETROACTIVELY IT HAS BECOME UNLAWFUL"
(P. 312). 

IT IS ONE THING TO HOLD, AS WAS DONE IN GUARANTY TRUST CO. V. UNITED
STATES, SUPRA, 304 U.S. AT P. 142, THAT UNDER THE LITVINOV ASSIGNMENT
THE UNITED STATES DID NOT ACQUIRE "A RIGHT FREE OF A PREEXISTING
INFIRMITY," SUCH AS THE RUNNING OF THE STATUTE OF LIMITATIONS AGAINST
THE RUSSIAN GOVERNMENT, ITS ASSIGNOR.  UNLIKE THE PROBLEM PRESENTED
HERE AND IN THE MOSCOW CASE, THAT HOLDING IN NO WAY SANCTIONS THE
ASSERTED POWER OF NEW YORK TO DENY ENFORCEMENT OF A CLAIM UNDER THE
LITVINOV ASSIGNMENT BECAUSE OF AN OVERRIDING POLICY OF THE STATE WHICH
DENIES VALIDITY IN NEW YORK OF THE RUSSIAN DECREES ON WHICH THE
ASSIGNED CLAIMS REST.  THAT POWER WAS DENIED NEW YORK IN UNITED STATES
V. BELMONT, SUPRA, 301 U.S. 324.  WITH ONE QUALIFICATION, TO BE NOTED,
THE BELMONT CASE IS DETERMINATIVE OF THE PRESENT CONTROVERSY.    THAT
CASE INVOLVED THE RIGHT OF THE UNITED STATES UNDER THE LITVINOV
ASSIGNMENT TO RECOVER, FROM A CUSTODIAN OR STAKEHOLDER IN NEW YORK,
FUNDS WHICH HAD BEEN NATIONALIZED AND APPROPRIATED BY THE RUSSIAN
DECREES. 

THIS COURT, SPEAKING THROUGH MR. JUSTICE SUTHERLAND, HELD THAT THE
CONDUCT OF FOREIGN RELATIONS IS COMMITTED BY THE CONSTITUTION TO THE
POLITICAL DEPARTMENTS OF THE FEDERAL GOVERNMENT; THAT THE PROPRIETY OF
THE EXERCISE OF THAT POWER IS NOT OPEN TO JUDICIAL INQUIRY; AND THAT
RECOGNITION OF A FOREIGN SOVEREIGN CONCLUSIVELY BINDS THE COURTS AND
"IS RETROACTIVE AND VALIDATES ALL ACTIONS AND CONDUCT OF THE GOVERNMENT
SO RECOGNIZED FROM THE COMMENCEMENT OF ITS EXISTENCE."  301 U.S. AT P.
328.  IT FURTHER HELD (P. 330) THAT RECOGNITION OF THE SOVIET
GOVERNMENT, THE ESTABLISHMENT OF DIPLOMATIC RELATIONS WITH IT, AND THE
LITVINOV ASSIGNMENT WERE "ALL PARTS OF ONE TRANSACTION, RESULTING IN AN
INTERNATIONAL COMPACT BETWEEN THE TWO GOVERNMENTS."  AFTER STATING
THAT, "IN RESPECT OF WHAT WAS DONE HERE, THE EXECUTIVE HAD AUTHORITY TO
SPEAK AS THE SOLE ORGAN" OF THE NATIONAL GOVERNMENT, IT ADDED (P. 330):
"THE ASSIGNMENT AND THE AGREEMENTS IN CONNECTION THEREWITH DID NOT, AS
IN THE CASE OF TREATIES, AS THAT TERM IS USED IN THE TREATY MAKING
CLAUSE OF THE CONSTITUTION (ART. II, SEC. 2), REQUIRE THE ADVICE AND
CONSENT OF THE SENATE."  IT HELD (P. 331) THAT THE "EXTERNAL POWERS OF
THE UNITED STATES ARE TO BE EXERCISED WITHOUT REGARD TO STATE LAWS OR
POLICIES.  THE SUPREMACY OF A TREATY IN THIS RESPECT HAS BEEN
RECOGNIZED FROM THE BEGINNING."  AND IT ADDED THAT "ALL INTERNATIONAL
COMPACTS AND AGREEMENTS" ARE TO BE TREATED WITH SIMILAR DIGNITY FOR THE
REASON THAT "COMPLETE POWER OVER INTERNATIONAL AFFAIRS IS IN THE
NATIONAL GOVERNMENT AND IS NOT AND CANNOT BE SUBJECT TO ANY CURTAILMENT
OR INTERFERENCE ON THE PART OF THE SEVERAL STATES."  P. 331.  THIS
COURT DID NOT STOP TO INQUIRE WHETHER IN FACT THERE WAS ANY POLICY OF
NEW YORK WHICH ENFORCEMENT OF THE LITVINOV ASSIGNMENT WOULD INFRINGE
SINCE "NO STATE POLICY CAN PREVAIL AGAINST THE INTERNATIONAL COMPACT
HERE INVOLVED."  P. 327. 

THE NEW YORK COURT OF APPEALS, IN THE MOSCOW CASE (280 N.Y. 309, 20
N.E.2D 758), DISTINGUISHED THE BELMONT CASE ON THE GROUND THAT IT WAS
DECIDED ON THE SUFFICIENCY OF THE PLEADINGS, THE DEMURRER TO THE
COMPLAINT ADMITTING THAT UNDER THE RUSSIAN DECREE THE PROPERTY WAS
CONFISCATED BY THE RUSSIAN GOVERNMENT AND THEN TRANSFERRED TO THE
UNITED STATES UNDER THE LITVINOV ASSIGNMENT.  BUT, AS WE HAVE SEEN, THE
RUSSIAN DECREE IN QUESTION WAS INTENDED TO HAVE AN EXTRATERRITORIAL
EFFECT AND TO EMBRACE FUNDS OF THE KIND WHICH ARE HERE INVOLVED.  NOR
CAN THERE BE ANY SERIOUS DOUBT THAT CLAIMS OF THE KIND HERE IN QUESTION
WERE INCLUDED IN THE LITVINOV ASSIGNMENT.  FN7  IT IS BROAD AND
INCLUSIVE.  IT SHOULD BE INTERPRETED CONSONANTLY WITH THE PURPOSE OF
THE COMPACT TO ELIMINATE ALL POSSIBLE SOURCES OF FRICTION BETWEEN THESE
TWO GREAT NATIONS.  SEE TUCKER V. ALEXANDROFF, 183 U.S. 424, 437;
JORDAN V. TASHIRO, 278 U.S. 123, 127.  STRICT CONSTRUCTION WOULD RUN
COUNTER TO THAT NATIONAL POLICY.  FOR, AS WE SHALL SEE, THE EXISTENCE
OF UNPAID CLAIMS AGAINST RUSSIA AND ITS NATIONALS, WHICH WERE HELD IN
THIS COUNTRY, AND WHICH THE LITVINOV ASSIGNMENT WAS INTENDED TO SECURE,
HAD LONG BEEN ONE IMPEDIMENT TO RESUMPTION OF FRIENDLY RELATIONS
BETWEEN THESE TWO GREAT POWERS. 

THE HOLDING IN THE BELMONT CASE IS THEREFORE DETERMINATIVE OF THE
PRESENT CONTROVERSY, UNLESS THE STAKE OF THE FOREIGN CREDITORS IN THIS
LIQUIDATION PROCEEDING AND THE PROVISION WHICH NEW YORK HAS PROVIDED
FOR THEIR PROTECTION CALL FOR A DIFFERENT RESULT. 

FOURTH.  THE BELMONT CASE FORECLOSES ANY RELIEF TO THE RUSSIAN
CORPORATION.  FOR THIS COURT HELD IN THAT CASE (301 U.S. AT P. 332): "
...  OUR CONSTITUTION, LAWS AND POLICIES HAVE NO EXTRATERRITORIAL
OPERATION, UNLESS IN RESPECT OF OUR OWN CITIZENS.  ...  WHAT ANOTHER
COUNTRY HAS DONE IN THE WAY OF TAKING OVER PROPERTY OF ITS NATIONALS,
AND ESPECIALLY OF ITS CORPORATIONS, IS NOT A MATTER FOR JUDICIAL
CONSIDERATION HERE.  SUCH NATIONALS MUST LOOK TO THEIR OWN GOVERNMENT
FOR ANY REDRESS TO WHICH THEY MAY BE ENTITLED." 

BUT IT IS URGED THAT DIFFERENT CONSIDERATIONS APPLY IN CASE OF THE
FOREIGN CREDITORS  FN8  TO WHOM THE NEW YORK COURT OF APPEALS (255 N.Y.
415, 175 N.E. 114) ORDERED DISTRIBUTION OF THESE FUNDS.  THE ARGUMENT
IS THAT THEIR RIGHTS IN THESE FUNDS HAVE VESTED BY VIRTUE OF THE NEW
YORK DECREE; THAT TO DEPRIVE THEM OF THE PROPERTY WOULD VIOLATE THE
FIFTH AMENDMENT WHICH EXTENDS ITS PROTECTION TO ALIENS AS WELL AS TO
CITIZENS; AND THAT THE LITVINOV ASSIGNMENT CANNOT DEPRIVE NEW YORK OF
ITS POWER TO ADMINISTER THE BALANCE OF THE FUND IN ACCORDANCE WITH ITS
LAWS FOR THE BENEFIT OF THESE CREDITORS. 

AT THE OUTSET, IT SHOULD BE NOTED THAT, SO FAR AS APPEARS, ALL
CREDITORS WHOSE CLAIMS AROSE OUT OF DEALINGS WITH THE NEW YORK BRANCH
HAVE BEEN PAID.  THUS WE ARE NOT FACED WITH THE QUESTION WHETHER NEW
YORK'S POLICY OF PROTECTING THE SO-CALLED LOCAL CREDITORS BY GIVING
THEM PRIORITY IN THE ASSETS DEPOSITED WITH THE STATE (MATTER OF PEOPLE,
242 N.Y. 148, 158-159, 151 N.E. 159) SHOULD BE RECOGNIZED WITHIN THE
RULE OF CLARK V. WILLIARD, 294 U.S. 211, OR SHOULD YIELD TO THE FEDERAL
POLICY EXPRESSED IN THE INTERNATIONAL COMPACT OR AGREEMENT. 
SANTOVINCENZO V. EGAN, 284 U.S. 30, 40; UNITED STATES V. BELMONT,
SUPRA.  WE INTIMATE NO OPINION ON THAT QUESTION.  THE CONTEST HERE IS
BETWEEN THE UNITED STATES AND CREDITORS OF THE RUSSIAN CORPORATION WHO,
WE ASSUME, ARE NOT CITIZENS OF THIS COUNTRY AND WHOSE CLAIMS DID NOT
ARISE OUT OF TRANSACTIONS WITH THE NEW YORK BRANCH.  THE UNITED STATES
IS SEEKING TO PROTECT NOT ONLY CLAIMS WHICH IT HOLDS BUT ALSO CLAIMS OF
ITS NATIONALS.  H. REP. NO. 865, 76TH CONG., 1ST SESS. SUCH CLAIMS DID
NOT ARISE OUT OF TRANSACTIONS WITH THIS RUSSIAN CORPORATION; THEY ARE,
HOWEVER, CLAIMS AGAINST RUSSIA OR ITS NATIONALS.  THE EXISTENCE OF SUCH
CLAIMS AND THEIR NON-PAYMENT HAD FOR YEARS BEEN ONE OF THE BARRIERS TO
RECOGNITION OF THE SOVIET REGIME BY THE EXECUTIVE DEPARTMENT.  GRAHAM,
RUSSIAN-AMERICAN RELATIONS, 1917-1933:  AN INTERPRETATION, 28 AM. POL. 
SC. REV. 387; 1 HACKWORTH, DIGEST OF INTERNATIONAL LAW (1940), PP. 302
304.  THE PURPOSE OF THE DISCUSSIONS LEADING TO THE POLICY OF
RECOGNITION WAS TO RESOLVE "ALL QUESTIONS OUTSTANDING" BETWEEN THE TWO
NATIONS.  ESTABLISHMENT OF DIPLOMATIC RELATIONS WITH THE UNION OF
SOVIET SOCIALIST REPUBLICS, DEPT. OF STATE, EASTERN EUROPEAN SERIES,
NO. 1(1933), P. 1.  SETTLEMENT OF ALL AMERICAN CLAIMS AGAINST RUSSIA
WAS ONE METHOD OF REMOVING SOME OF THE PRIOR OBJECTIONS TO RECOGNITION
BASED ON THE SOVIET POLICY OF NATIONALIZATION.  THE LITVINOV ASSIGNMENT
WAS NOT ONLY PART AND PARCEL OF THE NEW POLICY OF RECOGNITION (ID., P.
13), IT WAS ALSO THE METHOD ADOPTED BY THE EXECUTIVE DEPARTMENT FOR
ALLEVIATING IN THIS COUNTRY THE RIGORS OF NATIONALIZATION.  CONGRESS
TACITLY RECOGNIZED THAT POLICY.  ACTING IN ANTICIPATION OF THE
REALIZATION OF FUNDS UNDER THE LITVINOV ASSIGNMENT (H. REP. NO. 865,
76TH CONG., 1ST SESS.), IT AUTHORIZED THE APPOINTMENT OF A COMMISSIONER
TO DETERMINE THE CLAIMS OF AMERICAN NATIONALS AGAINST THE SOVIET
GOVERNMENT.  JOINT RESOLUTION OF AUGUST 4, 1939, 53 STAT. 1199. 

IF THE PRESIDENT HAD THE POWER TO DETERMINE THE POLICY WHICH WAS TO
GOVERN THE QUESTION OF RECOGNITION, THEN THE FIFTH AMENDMENT DOES NOT
STAND IN THE WAY OF GIVING FULL FORCE AND EFFECT TO THE LITVINOV
ASSIGNMENT.  TO BE SURE, ALIENS AS WELL AS CITIZENS ARE ENTITLED TO THE
PROTECTION OF THE FIFTH AMENDMENT.  RUSSIAN VOLUNTEER FLEET V. UNITED
STATES, 282 U.S. 481.  A STATE IS NOT PRECLUDED, HOWEVER, BY THE
FOURTEENTH AMENDMENT FROM ACCORDING PRIORITY TO LOCAL CREDITORS AS
AGAINST CREDITORS WHO ARE NATIONALS OF FOREIGN COUNTRIES AND WHOSE
CLAIMS AROSE ABROAD.  DISCONTO GESELLSCHAFT V. UMBREIT, 208 U.S. 570. 
BY THE SAME TOKEN, THE FEDERAL GOVERNMENT IS NOT BARRED BY THE FIFTH
AMENDMENT FROM SECURING FOR ITSELF AND OUR NATIONALS PRIORITY AGAINST
SUCH CREDITORS.  AND IT MATTERS NOT THAT THE PROCEDURE ADOPTED BY THE
FEDERAL GOVERNMENT IS GLOBULAR AND INVOLVES A REGROUPING OF ASSETS. 
THERE IS NO CONSTITUTIONAL REASON WHY THIS GOVERNMENT NEED ACT AS THE
COLLECTION AGENT FOR NATIONALS OF OTHER COUNTRIES WHEN IT TAKES STEPS
TO PROTECT ITSELF OR ITS OWN NATIONALS ON EXTERNAL DEBTS.  THERE IS NO
REASON WHY IT MAY NOT, THROUGH SUCH DEVICES AS THE LITVINOV ASSIGNMENT,
MAKE ITSELF AND ITS NATIONALS WHOLE FROM ASSETS HERE BEFORE IT PERMITS
SUCH ASSETS TO GO ABROAD IN SATISFACTION OF CLAIMS OF ALIENS MADE
ELSEWHERE AND NOT INCURRED IN CONNECTION WITH BUSINESS CONDUCTED IN
THIS COUNTRY.  THE FACT THAT NEW YORK HAS MARSHALED THE CLAIMS OF THE
FOREIGN CREDITORS HERE INVOLVED AND AUTHORIZED THEIR PAYMENT DOES NOT
GIVE THEM IMMUNITY FROM THAT GENERAL RULE. 

IF THE PRIORITY HAD BEEN ACCORDED AMERICAN CLAIMS BY TREATY WITH
RUSSIA, THERE WOULD BE NO DOUBT AS TO ITS VALIDITY.  CF. SANTOVINCENZO
V. EGAN, SUPRA.  THE SAME RESULT OBTAINS HERE.  THE POWERS OF THE
PRESIDENT IN THE CONDUCT OF FOREIGN RELATIONS INCLUDED THE POWER,
WITHOUT CONSENT OF THE SENATE, TO DETERMINE THE PUBLIC POLICY OF THE
UNITED STATES WITH RESPECT TO THE RUSSIAN NATIONALIZATION DECREES. 
"WHAT GOVERNMENT IS TO BE REGARDED HERE AS REPRESENTATIVE OF A FOREIGN
SOVEREIGN STATE IS A POLITICAL RATHER THAN A JUDICIAL QUESTION, AND IS
TO BE DETERMINED BY THE POLITICAL DEPARTMENT OF THE GOVERNMENT." 
GUARANTY TRUST CO. V. UNITED STATES, SUPRA, 304 U.S. AT P. 137.  THAT
AUTHORITY IS NOT LIMITED TO A DETERMINATION OF THE GOVERNMENT TO BE
RECOGNIZED.  IT INCLUDES THE POWER TO DETERMINE THE POLICY WHICH IS TO
GOVERN THE QUESTION OF RECOGNITION.  OBJECTIONS TO THE UNDERLYING
POLICY AS WELL AS OBJECTIONS TO RECOGNITION ARE TO BE ADDRESSED TO THE
POLITICAL DEPARTMENT AND NOT TO THE COURTS.  SEE GUARANTY TRUST CO. V.
UNITED STATES, SUPRA, P. 138; KENNETT V. CHAMBERS, 14 HOW.  38, 50-51. 
AS WE HAVE NOTED, THIS COURT IN THE BELMONT CASE RECOGNIZED THAT THE
LITVINOV ASSIGNMENT WAS AN INTERNATIONAL COMPACT WHICH DID NOT REQUIRE
THE PARTICIPATION OF THE SENATE.  IT STATED (301 U.S. PP. 330-331):
"THERE ARE MANY SUCH COMPACTS, OF WHICH A PROTOCOL, A MODUS VIVENDI, A
POSTAL CONVENTION, AND AGREEMENTS LIKE THAT NOW UNDER CONSIDERATION ARE
ILLUSTRATIONS."  AND SEE MONACO V. MISSISSIPPI, 292 U.S. 313, 331;
UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304, 318.  RECOGNITION
IS NOT ALWAYS ABSOLUTE; IT IS SOMETIMES CONDITIONAL.  1 MOORE,
INTERNATIONAL LAW DIGEST (1906), PP. 73-74; 1 HACKWORTH, DIGEST OF
INTERNATIONAL LAW (1940), PP. 192-195.  POWER TO REMOVE SUCH OBSTACLES
TO FULL RECOGNITION AS SETTLEMENT OF CLAIMS OF OUR NATIONALS (LEVITAN,
EXECUTIVE AGREEMENTS, 35 ILL. L. REV. 365, 382-385) CERTAINLY IS A
MODEST IMPLIED POWER OF THE PRESIDENT WHO IS THE "SOLE ORGAN OF THE
FEDERAL GOVERNMENT IN THE FIELD OF INTERNATIONAL RELATIONS."  UNITED
STATES V. CURTISS-WRIGHT CORP., SUPRA, P. 320.  EFFECTIVENESS IN
HANDLING THE DELICATE PROBLEMS OF FOREIGN RELATIONS REQUIRES NO LESS. 
UNLESS SUCH A POWER EXISTS, THE POWER OF RECOGNITION MIGHT BE THWARTED
OR SERIOUSLY DILUTED.  NO SUCH OBSTACLE CAN BE PLACED IN THE WAY OF
REHABILITATION OF RELATIONS BETWEEN THIS COUNTRY AND ANOTHER NATION,
UNLESS THE HISTORIC CONCEPTION OF THE POWERS AND RESPONSIBILITIES OF
THE PRESIDENT IN THE CONDUCT OF FOREIGN AFFAIRS (SEE MOORE, TREATIES
AND EXECUTIVE AGREEMENTS, 20 POL.  SC. Q. 385, 403-417) IS TO BE
DRASTICALLY REVISED.  IT WAS THE JUDGMENT OF THE POLITICAL DEPARTMENT
THAT FULL RECOGNITION OF THE SOVIET GOVERNMENT REQUIRED THE SETTLEMENT
OF ALL OUTSTANDING PROBLEMS INCLUDING THE CLAIMS OF OUR NATIONALS. 
RECOGNITION AND THE LITVINOV ASSIGNMENT WERE INTERDEPENDENT.  WE WOULD
USURP THE EXECUTIVE FUNCTION IF WE HELD THAT THAT DECISION WAS NOT
FINAL AND CONCLUSIVE IN THE COURTS. 

"ALL CONSTITUTIONAL ACTS OF POWER, WHETHER IN THE EXECUTIVE OR IN THE
JUDICIAL DEPARTMENT, HAVE AS MUCH LEGAL VALIDITY AND OBLIGATION AS IF
THEY PROCEEDED FROM THE LEGISLATURE,  ...  "  THE FEDERALIST, NO. 64. 
A TREATY IS A "LAW OF THE LAND" UNDER THE SUPREMACY CLAUSE (ART. VI,
CL. 2) OF THE CONSTITUTION.  SUCH INTERNATIONAL COMPACTS AND AGREEMENTS
AS THE LITVINOV ASSIGNMENT HAVE A SIMILAR DIGNITY.  UNITED STATES V.
BELMONT, SUPRA, 301 U.S. AT P. 331.  SEE CORWIN, THE PRESIDENT, OFFICE
& POWERS (1940), PP. 228-240. 

IT IS, OF COURSE, TRUE THAT EVEN TREATIES WITH FOREIGN NATIONS WILL
BE CAREFULLY CONSTRUED SO AS NOT TO DEROGATE FROM THE AUTHORITY AND
JURISDICTION OF THE STATES OF THIS NATION UNLESS CLEARLY NECESSARY TO
EFFECTUATE THE NATIONAL POLICY.  GUARANTY TRUST CO. V. UNITED STATES,
SUPRA, P. 143 AND CASES CITED.  FOR EXAMPLE, IN TODOK V. UNION STATE
BANK, 281 U.S. 449, THIS COURT TOOK PAINS IN ITS CONSTRUCTION OF A
TREATY, RELATING TO THE POWER OF AN ALIEN TO DISPOSE OF PROPERTY IN
THIS COUNTRY, NOT TO INVALIDATE THE PROVISIONS OF STATE LAW GOVERNING
SUCH DISPOSITIONS.  FREQUENTLY THE OBLIGATION OF A TREATY WILL BE
DEPENDENT ON STATE LAW.  PREVOST V. GRENEAUX, 19 HOW.  1.  BUT STATE
LAW MUST YIELD WHEN IT IS INCONSISTENT WITH, OR IMPAIRS THE POLICY OR
PROVISIONS OF, A TREATY OR OF AN INTERNATIONAL COMPACT OR AGREEMENT. 
SEE NIELSEN V. JOHNSON, 279 U.S. 47.  THEN, THE POWER OF A STATE TO
REFUSE ENFORCEMENT OF RIGHTS BASED ON FOREIGN LAW WHICH RUNS COUNTER TO
THE PUBLIC POLICY OF THE FORUM (GRIFFIN V. MCCOACH, 313 U.S. 498, 506)
MUST GIVE WAY BEFORE THE SUPERIOR FEDERAL POLICY EVIDENCED BY A TREATY
OR INTERNATIONAL COMPACT OR AGREEMENT.  SANTOVINCENZO V. EGAN, SUPRA,
284 U.S. 30; UNITED STATES V. BELMONT, SUPRA.    ENFORCEMENT OF NEW
YORK'S POLICY AS FORMULATED BY THE MOSCOW CASE WOULD COLLIDE WITH AND
SUBTRACT FROM THE FEDERAL POLICY, WHETHER IT WAS PREMISED ON THE
ABSENCE OF EXTRATERRITORIAL EFFECT OF THE RUSSIAN DECREES, THE
CONCEPTION OF THE NEW YORK BRANCH AS A DISTINCT JURISTIC PERSONALITY,
OR DISAPPROVAL BY NEW YORK OF THE RUSSIAN PROGRAM OF NATIONALIZATION. 
FN9  FOR THE MOSCOW CASE REFUSES TO GIVE EFFECT OR RECOGNITION IN NEW
YORK TO ACTS OF THE SOVIET GOVERNMENT WHICH THE UNITED STATES BY ITS
POLICY OF RECOGNITION AGREED NO LONGER TO QUESTION.  ENFORCEMENT OF
SUCH STATE POLICIES WOULD INDEED TEND TO RESTORE SOME OF THE PRECISE
IMPEDIMENTS TO FRIENDLY RELATIONS WHICH THE PRESIDENT INTENDED TO
REMOVE ON INAUGURATION OF THE POLICY OF RECOGNITION OF THE SOVIET
GOVERNMENT.  IN THE FIRST PLACE, SUCH ACTION BY NEW YORK, NO MATTER
WHAT GLOSS BE GIVEN IT, AMOUNTS TO OFFICIAL DISAPPROVAL OR NON
RECOGNITION OF THE NATIONALIZATION PROGRAM OF THE SOVIET GOVERNMENT. 
THAT DISAPPROVAL OR NON-RECOGNITION IS IN THE FACE OF A DISAVOWAL BY
THE UNITED STATES OF ANY OFFICIAL CONCERN WITH THAT PROGRAM.  IT IS IN
THE FACE OF THE UNDERLYING POLICY ADOPTED BY THE UNITED STATES WHEN IT
RECOGNIZED THE SOVIET GOVERNMENT.  IN THE SECOND PLACE, TO THE EXTENT
THAT THE ACTION OF THE STATE IN REFUSING ENFORCEMENT OF THE LITVINOV
ASSIGNMENT RESULTS IN REDUCTION OR NON-PAYMENT OF CLAIMS OF OUR
NATIONALS, IT HELPS KEEP ALIVE ONE SOURCE OF FRICTION WHICH THE POLICY
OF RECOGNITION INTENDED TO REMOVE.  THUS THE ACTION OF NEW YORK TENDS
TO RESTORE SOME OF THE PRECISE IRRITANTS WHICH HAD LONG AFFECTED THE
RELATIONS BETWEEN THESE TWO GREAT NATIONS AND WHICH THE POLICY OF
RECOGNITION WAS DESIGNED TO ELIMINATE. 

WE RECENTLY STATED IN HINES V. DAVIDOWITZ, 312 U.S. 52, 68, THAT THE
FIELD WHICH AFFECTS INTERNATIONAL RELATIONS IS "THE ONE ASPECT OF OUR
GOVERNMENT THAT FROM THE FIRST HAS BEEN MOST GENERALLY CONCEDED
IMPERATIVELY TO DEMAND BROAD NATIONAL AUTHORITY"; AND THAT ANY STATE
POWER WHICH MAY EXIST "IS RESTRICTED TO THE NARROWEST OF LIMITS." 
THERE, WE WERE DEALING WITH THE QUESTION AS TO WHETHER A STATE STATUTE
REGULATING ALIENS SURVIVED A SIMILAR FEDERAL STATUTE.  WE HELD THAT IT
DID NOT.  HERE, WE ARE DEALING WITH AN EXCLUSIVE FEDERAL FUNCTION.  IF
STATE LAWS AND POLICIES DID NOT YIELD BEFORE THE EXERCISE OF THE
EXTERNAL POWERS OF THE UNITED STATES, THEN OUR FOREIGN POLICY MIGHT BE
THWARTED.  THESE ARE DELICATE MATTERS.  IF STATE ACTION COULD DEFEAT OR
ALTER OUR FOREIGN POLICY, SERIOUS CONSEQUENCES MIGHT ENSUE.  THE NATION
AS A WHOLE WOULD BE HELD TO ANSWER IF A STATE CREATED DIFFICULTIES WITH
A FOREIGN POWER.  CF. CHY LUNG V. FREEMAN, 92 U.S. 275, 279-280. 
CERTAINLY, THE CONDITIONS FOR "ENDURING FRIENDSHIP" BETWEEN THE
NATIONS, WHICH THE POLICY OF RECOGNITION IN THIS INSTANCE WAS DESIGNED
TO EFFECTUATE,  FN10  ARE NOT LIKELY TO FLOURISH WHERE, CONTRARY TO
NATIONAL POLICY, A LINGERING ATMOSPHERE OF HOSTILITY IS CREATED BY
STATE ACTION. 

SUCH CONSIDERATIONS UNDERLIE THE PRINCIPLE OF OETJEN V. CENTRAL
LEATHER CO., 246 U.S. 297, 302-303, THAT WHEN A REVOLUTIONARY
GOVERNMENT IS RECOGNIZED AS A DE JURE GOVERNMENT, "SUCH RECOGNITION IS
RETROACTIVE IN EFFECT AND VALIDATES ALL THE ACTIONS AND CONDUCT OF THE
GOVERNMENT SO RECOGNIZED FROM THE COMMENCEMENT OF ITS EXISTENCE."  THEY
ALSO EXPLAIN THE RULE EXPRESSED IN UNDERHILL V. HERNANDEZ, 168 U.S.
250, 252, THAT "THE COURTS OF ONE COUNTRY WILL NOT SIT IN JUDGMENT ON
THE ACTS OF THE GOVERNMENT OF ANOTHER DONE WITHIN ITS OWN TERRITORY." 

THE ACTION OF NEW YORK IN THIS CASE AMOUNTS IN SUBSTANCE TO A
REJECTION OF A PART OF THE POLICY UNDERLYING RECOGNITION BY THIS NATION
OF SOVIET RUSSIA.  SUCH POWER IS NOT ACCORDED A STATE IN OUR
CONSTITUTIONAL SYSTEM.  TO PERMIT IT WOULD BE TO SANCTION A DANGEROUS
INVASION OF FEDERAL AUTHORITY.  FOR IT WOULD "IMPERIL THE AMICABLE
RELATIONS BETWEEN GOVERNMENTS AND VEX THE PEACE OF NATIONS."  OETJEN V.
CENTRAL LEATHER CO., SUPRA, P. 304.  IT WOULD TEND TO DISTURB THAT
EQUILIBRIUM IN OUR FOREIGN RELATIONS WHICH THE POLITICAL DEPARTMENTS OF
OUR NATIONAL GOVERNMENT HAD DILIGENTLY ENDEAVORED TO ESTABLISH. 

WE REPEAT THAT THERE ARE LIMITATIONS ON THE SOVEREIGNTY OF THE
STATES.  NO STATE CAN REWRITE OUR FOREIGN POLICY TO CONFORM TO ITS OWN
DOMESTIC POLICIES.  POWER OVER EXTERNAL AFFAIRS IS NOT SHARED BY THE
STATES; IT IS VESTED IN THE NATIONAL GOVERNMENT EXCLUSIVELY.  IT NEED
NOT BE SO EXERCISED AS TO CONFORM TO STATE LAWS OR STATE POLICIES,
WHETHER THEY BE EXPRESSED IN CONSTITUTIONS, STATUTES, OR JUDICIAL
DECREES.  AND THE POLICIES OF THE STATES BECOME WHOLLY IRRELEVANT TO
JUDICIAL INQUIRY WHEN THE UNITED STATES, ACTING WITHIN ITS
CONSTITUTIONAL SPHERE, SEEKS ENFORCEMENT OF ITS FOREIGN POLICY IN THE
COURTS.  FOR SUCH REASONS, MR. JUSTICE SUTHERLAND STATED IN UNITED
STATES V. BELMONT, SUPRA, 301 U.S. AT P. 331, "IN RESPECT OF ALL
INTERNATIONAL NEGOTIATIONS AND COMPACTS, AND IN RESPECT OF OUR FOREIGN
RELATIONS GENERALLY, STATE LINES DISAPPEAR.  AS TO SUCH PURPOSES THE
STATE OF NEW YORK DOES NOT EXIST." 

WE HOLD THAT THE RIGHT TO THE FUNDS OR PROPERTY IN QUESTION BECAME
VESTED IN THE SOVIET GOVERNMENT AS THE SUCCESSOR TO THE FIRST RUSSIAN
INSURANCE CO.; THAT THIS RIGHT HAS PASSED TO THE UNITED STATES UNDER
THE LITVINOV ASSIGNMENT; AND THAT THE UNITED STATES IS ENTITLED TO THE
PROPERTY AS AGAINST THE CORPORATION AND THE FOREIGN CREDITORS. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE SUPREME
COURT OF NEW YORK FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  SEE ESTABLISHMENT OF DIPLOMATIC RELATIONS WITH THE UNION OF
SOVIET SOCIALIST REPUBLICS, DEPT. OF STATE, EASTERN EUROPEAN SERIES,
NO. 1(1933) FOR THE VARIOUS DOCUMENTS PERTAINING TO RECOGNITION. 

FN2  THE THREE DECREES ON WHICH THE UNITED STATES PLACED PRIMARY
EMPHASIS (APART FROM THE ONE SET FORTH IN NOTE 3, INFRA) WERE DESCRIBED
IN THE FINDINGS OF THE REFEREE IN THE MOSCOW CASE AS FOLLOWS: 

"88.  THE DECREE OF NOVEMBER 18, 1919 ON THE ANNULMENT OF LIFE
INSURANCE CONTRACTS ABOLISHED INSURANCE OF LIFE IN ALL ITS FORMS IN THE
REPUBLIC AND ANNULLED ALL CONTRACTS WITH INSURANCE COMPANIES AND
SAVINGS BANKS WITH RESPECT TO THE INSURANCE OF LIFE, CAPITAL AND
INCOME. 

"89.  THE DECREE OF THE SOVIET OF PEOPLE'S COMMISSARS DATED MARCH 4,
1919, ON THE LIQUIDATION OF OBLIGATIONS OF STATE ENTERPRISES, PROVIDED
THAT STOCK CERTIFICATES AND SHARES OF JOINT STOCK COMPANIES, WHOSE
ENTERPRISES HAVE BEEN EITHER NATIONALIZED OR SEQUESTERED, ARE ANNULLED
AND ALSO PROVIDED THAT SUCH ENTERPRISES ARE FREE FROM THE PAYMENT OF
ALL DEBTS TO PRIVATE PERSONS AND ENTERPRISES WHICH HAVE ARISEN PRIOR TO
THE NATIONALIZATION OF THESE ENTERPRISES, INCLUDING PAYMENTS ON BOND
LOANS WITH THE EXCEPTION ONLY OF WAGES DUE TO WORKERS AND EMPLOYEES. 

"90.  THE DECREE OF THE SOVIET OF PEOPLE'S COMMISSARS DATED JUNE 28,
1918 PROVIDES IN ARTICLE I THAT THE COMMERCIAL AND INDUSTRIAL
ENTERPRISES ENUMERATED THEREIN, WHICH ARE LOCATED WITHIN THE BOUNDARIES
OF THE SOVIET REPUBLIC, TOGETHER WITH ALL THEIR CAPITAL AND PROPERTY,
REGARDLESS OF WHAT THE LATTER MAY CONSIST, ARE DECLARED THE PROPERTY OF
THE REPUBLIC." 

FN3  RELEVANT PORTIONS OF THE INSURANCE DECREE DATED NOVEMBER 28,
1918, TRANSLATED IN ACCORDANCE WITH THE FINDINGS OF THE REFEREE IN THE
MOSCOW CASE, ARE: 

"603.  ON THE ORGANIZATION OF THE INSURANCE BUSINESS IN THE RUSSIAN
REPUBLIC. 

"(1)  INSURANCE IN ALL ITS FORMS, SUCH AS:  FIRE INSURANCE, INSURANCE
ON SHIPMENTS, LIFE INSURANCE, ACCIDENT INSURANCE, HAIL INSURANCE,
LIVESTOCK INSURANCE, INSURANCE AGAINST FAILURE OF CROPS, ETC. IS HEREBY
PROCLAIMED AS A STATE MONOPOLY. 

"NOTE.  MUTUAL INSURANCE OF MOVABLE GOODS AND MERCHANDISE BY THE
COOPERATIVE ORGANIZATIONS IS CONDUCTED ON A SPECIAL BASIS. 

"(2)  ALL PRIVATE INSURANCE COMPANIES AND ORGANIZATIONS (STOCK AND
SHARE HOLDING, ALSO MUTUAL) UPON ISSUANCE OF THIS DECREE ARE SUBJECT TO
LIQUIDATION; FORMER RURAL* (PEOPLE'S SOVIET) AND MUNICIPAL MUTUAL
INSURANCE ORGANIZATIONS OPERATING WITHIN THE BOUNDARIES OF THE RUSSIAN
REPUBLIC ARE HEREBY PROCLAIMED THE PROPERTY OF THE RUSSIAN SOCIALIST
FEDERATED SOVIET REPUBLIC. 

*"ZEMSKIE." 

THE REFEREE IN THE MOSCOW CASE FOUND THAT, UPON PUBLICATION OF THIS
DECREE, ALL RUSSIAN INSURANCE COMPANIES WERE PROHIBITED FROM ENGAGING
IN THE INSURANCE BUSINESS IN RUSSIA; THAT THEY BECAME SUBJECT TO
LIQUIDATION AND WERE DISSOLVED; THAT ALL OF THEIR ASSETS IN RUSSIA
BECAME THE PROPERTY OF THE STATE; THAT, ON PUBLICATION OF THE DECREE,
THE DIRECTORS OF THE COMPANIES LOST ALL POWER TO ACT AS DIRECTORS OR
CONSERVATORS OF THE PROPERTY, OR TO REPRESENT THE COMPANIES IN ANY WAY;
AND THAT THE RUSSIAN GOVERNMENT BECAME THE STATUTORY SUCCESSOR AND
DOMICILIARY LIQUIDATOR OF COMPANIES WHOSE PROPERTY WAS NATIONALIZED. 

"(3)  FOR THE IMMEDIATE ORGANIZATION OF THE INSURANCE BUSINESS AND
FOR THE LIQUIDATION OF PARTS OF INSURANCE INSTITUTIONS, WHICH HAVE
BECOME THE PROPERTY OF THE RUSSIAN SOCIALIST FEDERATED SOVIET REPUBLIC,
A COMMISSION IS ESTABLISHED UNDER THE SUPREME SOVIET OF NATIONAL
ECONOMY, CONSISTING OF REPRESENTATIVES OF THE SUPREME SOVIET OF
NATIONAL ECONOMY, THE PEOPLE'S COMMISSARIATS OF COMMERCE AND INDUSTRY,
INTERIOR AFFAIRS, THE COMMISSAR OF INSURANCE AND FIRE PREVENTION,
FINANCES, LABOR, AND STATE CONTROL, AND OF SOVIET INSURANCE
ORGANIZATIONS (PEOPLE'S SOVIET AND MUNICIPAL MUTUAL). 

"NOTE.  THE SAME COMMISSION IS CHARGED WITH THE LIQUIDATING OF
PRIVATE INSURANCE ORGANIZATIONS, ALL PROPERTY AND ASSETS OF WHICH,
REMAINING ON HAND AFTER THEIR LIQUIDATION, SHALL BECOME THE PROPERTY OF
THE RUSSIAN SOCIALIST FEDERATED SOVIET REPUBLIC. 

"(4)  THE ABOVE-MENTIONED REORGANIZATION AND LIQUIDATION OF EXISTING
INSURANCE ORGANIZATIONS AND INSTITUTIONS SHALL BE ACCOMPLISHED NOT
LATER THAN THE FIRST DAY OF APRIL 1919. 

     .         .         .  .         . 

"(8)  THE PRESENT DECREE COMES INTO FORCE ON THE DAY OF ITS
PUBLICATION." 

FN4  THAT SECTION READS: 

"A PRINTED COPY OF A STATUTE, OR OTHER WRITTEN LAW, OF ANOTHER STATE,
OR OF A TERRITORY, OR OF A FOREIGN COUNTRY, OR A PRINTED COPY OF A
PROCLAMATION, EDICT, DECREE OR ORDINANCE, BY THE EXECUTIVE POWER
THEREOF, CONTAINED IN A BOOK OR PUBLICATION PURPORTING OR PROVED TO
HAVE BEEN PUBLISHED BY THE AUTHORITY THEREOF, OR PROVED TO BE COMMONLY
ADMITTED AS EVIDENCE OF THE EXISTING LAW IN THE JUDICIAL TRIBUNALS
THEREOF, IS PRESUMPTIVE EVIDENCE OF THE STATUTE, LAW, PROCLAMATION,
EDICT, DECREE OR ORDINANCE.  THE UNWRITTEN OR COMMON LAW OF ANOTHER
STATE, OR OF A TERRITORY, OR OF A FOREIGN COUNTRY, MAY BE PROVED AS A
FACT BY ORAL EVIDENCE.  THE BOOKS OF REPORTS OF CASES ADJUDGED IN THE
COURTS THEREOF MUST ALSO BE ADMITTED AS PRESUMPTIVE EVIDENCE OF THE
UNWRITTEN OR COMMON LAW THEREOF.  THE LAW OF SUCH STATE OR TERRITORY OR
FOREIGN COUNTRY IS TO BE DETERMINED BY THE COURT OR REFEREE AND
INCLUDED IN THE FINDINGS OF THE COURT OR REFEREE OR CHARGED TO THE
JURY, AS THE CASE MAY BE.  SUCH FINDING OR CHARGE IS SUBJECT TO REVIEW
ON APPEAL.  IN DETERMINING SUCH LAW, NEITHER THE TRIAL COURT NOR ANY
APPELLATE COURT SHALL BE LIMITED TO THE EVIDENCE PRODUCED ON THE TRIAL
BY THE PARTIES, BUT MAY CONSULT ANY OF THE WRITTEN AUTHORITIES ABOVE
NAMED IN THIS SECTION, WITH THE SAME FORCE AND EFFECT AS IF THE SAME
HAD BEEN ADMITTED IN EVIDENCE." 

FN5  HENCE, THE DENIAL OF THE MOTION OF THE UNITED STATES TO CERTIFY
THE OFFICIAL DECLARATION AS PART OF THE RECORD OF THE MOSCOW CASE IN
THIS COURT (281 N.Y. 818, 24 N.E.2D 487) WOULD SEEM IMMATERIAL TO OUR
RIGHT TO CONSULT IT. 

FN6  SEE ALSO NOTE 7, INFRA. 

FN7  A CLARIFICATION OF THE LITVINOV ASSIGNMENT WAS MADE IN AN
EXCHANGE OF LETTERS BETWEEN THE AMERICAN CHARGE D'AFFAIRES AND THE
PEOPLE'S COMMISSAR FOR FOREIGN AFFAIRS ON JANUARY 7, 1937.  THE LETTER
OF THE FORMER READ: 

"I HAVE THE HONOR TO INFORM YOU THAT IT IS THE UNDERSTANDING OF THE
GOVERNMENT OF THE UNITED STATES THAT THE GOVERNMENT OF THE UNION OF
SOVIET SOCIALIST REPUBLICS CONSIDERS THAT BY AND UPON THE FORMATION OF
THE UNION OF SOVIET SOCIALIST REPUBLICS AND THE ADOPTION OF THE
CONSTITUTION OF 1923 OF THE UNION OF SOVIET SOCIALIST REPUBLICS, THE
UNION OF SOVIET SOCIALIST REPUBLICS ACQUIRED THE RIGHT TO DISPOSE OF
THE PROPERTY, RIGHTS, OR INTERESTS THEREIN LOCATED ABROAD OF ALL
CORPORATIONS AND COMPANIES WHICH HAD THERETOFORE BEEN NATIONALIZED BY
DECREES OF THE CONSTITUENT REPUBLICS OR THEIR PREDECESSORS. 

"THE GOVERNMENT OF THE UNITED STATES FURTHER UNDERSTANDS THAT IT WAS
THE PURPOSE AND INTENTION OF THE GOVERNMENT OF THE UNION OF SOVIET
SOCIALIST REPUBLICS TO ASSIGN TO THE GOVERNMENT OF THE UNITED STATES,
AMONG OTHER AMOUNTS, ALL THE AMOUNTS ADMITTED TO BE DUE OR THAT MAY BE
FOUND TO BE DUE NOT ONLY THE UNION OF SOVIET SOCIALIST REPUBLICS BUT
ALSO THE CONSTITUENT REPUBLICS OF THE UNION OF SOVIET SOCIALIST
REPUBLICS OR THEIR PREDECESSORS FROM AMERICAN NATIONALS, INCLUDING
CORPORATIONS, COMPANIES, PARTNERSHIPS, OR ASSOCIATIONS, AND ALSO THE
CLAIM AGAINST THE UNITED STATES OF THE RUSSIAN VOLUNTEER FLEET, IN
LITIGATION IN THE UNITED STATES COURT OF CLAIMS, AND THAT THE
GOVERNMENT OF THE UNION OF SOVIET SOCIALIST REPUBLICS DID RELEASE AND
ASSIGN ALL SUCH AMOUNTS TO THE GOVERNMENT OF THE UNITED STATES BY
VIRTUE OF THE NOTE ADDRESSED BY YOU TO THE PRESIDENT OF THE UNITED
STATES ON NOVEMBER 16, 1933. 

"WILL YOU BE GOOD ENOUGH TO CONFIRM THE UNDERSTANDING WHICH THE
GOVERNMENT OF THE UNITED STATES HAS IN THIS MATTER, CONCERNING THE LAW
OF THE RUSSIAN SOCIALIST FEDERATED SOVIET REPUBLIC, THE CONSTITUTION
AND LAWS OF THE UNION OF SOVIET SOCIALIST REPUBLICS, AND THE INTENTION
AND PURPOSE OF THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST
REPUBLICS IN THE ABOVE-MENTIONED ASSIGNMENT?"    THE REPLY OF THE
PEOPLE'S COMMISSAR FOR FOREIGN AFFAIRS WAS: 

"IN REPLY TO YOUR NOTE OF JANUARY 7, 1937, I HAVE THE HONOR TO INFORM
YOU THAT THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST REPUBLICS
CONSIDERS THAT BY AND UPON THE FORMATION OF THE UNION OF SOVIET
SOCIALIST REPUBLICS AND THE ADOPTION OF THE CONSTITUTION OF 1923 OF THE
UNION OF SOVIET SOCIALIST REPUBLICS, THE UNION OF SOVIET SOCIALIST
REPUBLICS ACQUIRED THE RIGHT TO DISPOSE OF THE PROPERTY, RIGHTS, OR
INTERESTS THEREIN LOCATED ABROAD OF ALL CORPORATIONS AND COMPANIES
WHICH HAD THERETOFORE BEEN NATIONALIZED BY DECREES OF THE CONSTITUENT
REPUBLICS OR THEIR PREDECESSORS. 

"YOU ARE FURTHER INFORMED THAT IT WAS THE PURPOSE AND INTENTION OF
THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST REPUBLICS TO ASSIGN TO
THE GOVERNMENT OF THE UNITED STATES, AMONG OTHER AMOUNTS, ALL THE
AMOUNTS ADMITTED TO BE DUE OR THAT MAY BE FOUND TO BE DUE NOT ONLY THE
UNION OF SOVIET SOCIALIST REPUBLICS BUT ALSO THE CONSTITUENT REPUBLICS
OF THE UNION OF SOVIET SOCIALIST REPUBLICS OR THEIR PREDECESSORS FROM
AMERICAN NATIONALS, INCLUDING CORPORATIONS, COMPANIES, PARTNERSHIPS, OR
ASSOCIATIONS, AND ALSO THE CLAIM AGAINST THE UNITED STATES OF THE
RUSSIAN VOLUNTEER FLEET, IN LITIGATION IN THE UNITED STATES COURT OF
CLAIMS, AND THAT THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST
REPUBLICS DID RELEASE AND ASSIGN ALL SUCH AMOUNTS TO THE GOVERNMENT OF
THE UNITED STATES BY VIRTUE OF THE NOTE ADDRESSED BY ME TO THE
PRESIDENT OF THE UNITED STATES ON NOVEMBER 16, 1933. 

"I HAVE THE HONOR, THEREFORE, TO CONFIRM THE UNDERSTANDING, AS
EXPRESSED IN YOUR NOTE OF JANUARY 7, 1937, WHICH THE GOVERNMENT OF THE
UNITED STATES HAS IN THIS MATTER, CONCERNING THE LAW OF THE RUSSIAN
SOCIALIST FEDERATED SOVIET REPUBLIC, THE CONSTITUTION AND LAWS OF THE
UNION OF SOVIET SOCIALIST REPUBLICS, AND THE INTENTION AND PURPOSE OF
THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST REPUBLICS IN THE ABOVE
MENTIONED ASSIGNMENT." 

FN8  IN VIEW OF THE DISPOSITION WHICH WE MAKE OF THIS CASE, WE
EXPRESS NO VIEW ON WHETHER THESE CREDITORS WOULD BE BARRED FROM
ASSERTING THEIR CLAIMS HERE BY VIRTUE OF THE RULING IN CANADA SOUTHERN
RY. CO. V. GEBHARD, 109 U.S. 527, 538, THAT "ANYTHING DONE AT THE LEGAL
HOME OF THE CORPORATION, UNDER THE AUTHORITY OF SUCH LAWS, WHICH
DISCHARGES IT FROM LIABILITY THERE, DISCHARGES IT EVERYWHERE." 

FN9  IN THIS CONNECTION IT SHOULD BE NOTED THAT SEC. 977(B) OF THE
NEW YORK CIVIL PRACTICE ACT PROVIDES FOR THE APPOINTMENT OF A RECEIVER
TO LIQUIDATE LOCAL ASSETS OF A FOREIGN CORPORATION WHERE, INTER ALIA,
IT HAS BEEN DISSOLVED, LIQUIDATED, OR NATIONALIZED.  SUBDIVISION 19 OF
THAT SECTION PROVIDES IN PART: 

"...  SUCH LIQUIDATION, DISSOLUTION, NATIONALIZATION, EXPIRATION OF
ITS EXISTENCE, OR REPEAL, SUSPENSION, REVOCATION OR ANNULMENT OF ITS
CHARTER OR ORGANIC LAW IN THE COUNTRY OF ITS DOMICILE, OR ANY
CONFISCATORY LAW OR DECREE THEREOF, SHALL NOT BE DEEMED TO HAVE ANY
EXTRA-TERRITORIAL EFFECT OR VALIDITY AS TO THE PROPERTY, TANGIBLE OR
INTANGIBLE, DEBTS, DEMANDS OR CHOSES IN ACTION OF SUCH CORPORATION
WITHIN THE STATE OR ANY DEBTS OR OBLIGATIONS OWING TO SUCH CORPORATION
FROM PERSONS, FIRMS OR CORPORATIONS RESIDING, SOJOURNING OR DOING
BUSINESS IN THE STATE." 

FN10  ESTABLISHMENT OF DIPLOMATIC RELATIONS WITH THE UNION OF SOVIET
SOCIALIST REPUBLICS, SUPRA NOTE 1, P. 20. 

MR. JUSTICE REED AND MR. JUSTICE JACKSON DID NOT PARTICIPATE IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER: 

THE NATURE OF THE CONTROVERSY MAKES IT APPROPRIATE TO ADD A FEW
OBSERVATIONS TO MY BROTHER DOUGLAS' OPINION. 

LEGAL IDEAS, LIKE OTHER ORGANISMS, CANNOT SURVIVE SEVERANCE FROM
THEIR CONGENIAL ENVIRONMENT.  CONCEPTS LIKE "SITUS" AND "JURISDICTION"
AND "COMITY" SUMMARIZE VIEWS EVOLVED BY THE JUDICIAL PROCESS, IN THE
ABSENCE OF CONTROLING LEGISLATION, FOR THE SETTLEMENT OF DOMESTIC
ISSUES.  TO UTILIZE SUCH CONCEPTS FOR THE SOLUTION OF CONTROVERSIES
INTERNATIONAL IN NATURE, EVEN THOUGH THEY ARE PRESENTED TO THE COURTS
IN THE FORM OF A PRIVATE LITIGATION, IS TO INVOKE A NARROW AND
INADMISSIBLE FRAME OF REFERENCE. 

THE EXPROPRIATION DECREES OF THE U.S.S.R. GAVE RISE TO EXTENSIVE
LITIGATION AMONG VARIOUS CLASSES OF CLAIMANTS TO FUNDS BELONGING TO
RUSSIAN COMPANIES DOING BUSINESS OR KEEPING ACCOUNTS ABROAD.  ENGLAND
AND NEW YORK WERE THE MOST ACTIVE CENTERS OF THIS LITIGATION.  THE
OPINIONS IN THE MANY CASES BEFORE THEIR COURTS CONSTITUTE A SIZEABLE
LIBRARY.  THEY ALL DERIVE FROM A SINGLE THEME - THE EFFECT OF THE
RUSSIAN EXPROPRIATION DECREES UPON PARTICULAR CLAIMS, IN SOME CASES
BEFORE AND IN SOME CASES AFTER RECOGNITION OF THE U.S.S.R., EITHER DE
JURE OR DE FACTO.  ONE CANNOT READ THIS BODY OF JUDICIAL OPINIONS, IN
THE DIVISIONAL COURT, THE COURT OF APPEAL AND THE HOUSE OF LORDS, IN
THE NEW YORK SUPREME COURT, THE APPELLATE DIVISION, AND THE COURT OF
APPEALS, AND NOT BE LEFT WITH THE CONVICTION THAT THEY ARE THE PRODUCT
LARGELY OF CASUISTRY, CONFUSION, AND INDECISION.  SEE JAFFEE, JUDICIAL
ASPECTS OF FOREIGN RELATIONS, PASSIM.  THE DIFFICULTIES WERE INHERENT
IN THE PROBLEMS THAT CONFRONTED THE COURTS.  THEY WERE DUE TO WHAT
CHIEF JUDGE CARDOZO CALLED "THE HAZARDS AND EMBARRASSMENTS GROWING OUT
OF THE CONFISCATORY DECREES OF THE RUSSIAN SOVIET REPUBLIC," MATTER OF
PEOPLE (RUSSIAN REINSURANCE CO.), 255 N.Y. 415, 420, 175 N.E. 114, 115,
AND TO THE ENDEAVOR TO ADJUST THESE "HAZARDS AND EMBARRASSMENTS" TO
"THE LARGEST CONSIDERATIONS OF PUBLIC POLICY AND JUSTICE," JAMES & CO.
V. SECOND RUSSIAN INSURANCE CO., 239 N.Y. 248, 256, 146 N.E. 369, 370,
WHEN PRIVATE CLAIMS TO FUNDS COVERED BY THE EXPROPRIATION DECREES WERE
BEFORE THE COURTS, PARTICULARLY AT A TIME WHEN NON-RECOGNITION WAS OUR
NATIONAL POLICY. 

THE OPINIONS SHOW BOTH THE ENGLISH AND THE NEW YORK COURTS STRUGGLING
TO DEAL WITH THESE BUSINESS CONSEQUENCES OF MAJOR INTERNATIONAL
COMPLICATIONS THROUGH THE APPLICATION OF TRADITIONAL JUDICIAL
CONCEPTS.  "SITUS," "JURISDICTION," "COMITY," "DOMESTICATION" AND
"DISSOLUTION" OF CORPORATIONS, AND OTHER LEGAL IDEAS THAT OFTEN ENOUGH
IN LITIGATION OF A PURELY DOMESTIC NATURE PROVE THEIR LIMITATIONS AS
INSTRUMENTS FOR SOLUTION OR EVEN AS MEANS FOR ANALYSIS, WERE PRESSED
INTO SERVICE FOR ADJUDICATING CLAIMS WHOSE INTERNATIONAL IMPLICATIONS
COULD NOT BE STERILIZED.  THIS ACCOUNTS FOR THE DIVERGENCE OF VIEWS
AMONG THE JUDGES AND FOR SUCH CONTRADICTORY AND CONFUSING RULINGS AS
THE SERIES OF NEW YORK CASES, FROM WULFSOHN V. RUSSIAN REPUBLIC, 234
N.Y. 372, 138 N.E. 24, TO THE RULING NOW UNDER REVIEW, MOSCOW FIRE INS.
CO. V. BANK OF NEW YORK & TRUST CO., 280 N.Y. 286, 20 N.E.2D 758,
ACCOUNTS FOR RUSSIAN COMMERCIAL & INDUSTRIAL BANK V. COMPTOIR
D'ESCOMPTE DE MULHOUSE, (1925) A.C. 112, COMPARED WITH LAZARD BROTHERS
& CO. V. MIDLAND BANK, (1933) A.C. 289, AND FOR THE FANTASTIC RESULT OF
THE DECISION IN LEHIGH VALLEY R. CO. V. STATE OF RUSSIA, 21 F.2D 396,
IN WHICH THE KERENSKY REGIME WAS, IN ACCORDANCE WITH DIPLOMATIC
DETERMINATION, TREATED AS THE EXISTING RUSSIAN GOVERNMENT A DECADE
AFTER ITS EXTINCTION. 

COURTS COULD HARDLY ESCAPE PERPLEXITIES WHEN CITIZENS ASSERTED CLAIMS
TO RUSSIAN FUNDS WITHIN THE CONTROL OF THE FORUM.  BUT A TOTALLY
DIFFERENT SITUATION WAS PRESENTED WHEN ALL CLAIMS OF LOCAL CREDITORS
WERE SATISFIED AND ONLY THE CONFLICTING CLAIMS OF RUSSIA AND OF FORMER
RUSSIAN CREDITORS WERE INVOLVED.  IN THE PARTICULAR CIRCUMSTANCES OF
RUSSIAN INSURANCE COMPANIES DOING BUSINESS IN NEW YORK, THE STATE
SUPERINTENDENT OF INSURANCE TOOK POSSESSION OF THE ASSETS OF THE
RUSSIAN BRANCHES IN NEW YORK TO CONSERVE THEM FOR THE BENEFIT OF THOSE
ENTITLED TO THEM.  LIQUIDATION FOLLOWED, DOMESTIC CREDITORS AND POLICY
HOLDERS WERE PAID, AND THE SUPERINTENDENT FOUND A LARGE SURPLUS ON HIS
HANDS.  AS STATUTORY LIQUIDATOR, THE SUPERINTENDENT OF INSURANCE TOOK
THE GROUND THAT "IN VIEW OF THE HAZARDS AND UNCERTAINTIES OF THE
RUSSIAN SITUATION, THE SURPLUS SHOULD NOT BE PAID TO ANY ONE, BUT
SHOULD BE LEFT IN HIS HANDS INDEFINITELY, UNTIL A GOVERNMENT RECOGNIZED
BY THE UNITED STATES SHALL FUNCTION IN THE TERRITORY OF WHAT WAS ONCE
THE RUSSIAN EMPIRE."  255 N.Y. 415, 421, 175 N.E. 114, 115.  SO THE
APPELLATE DIVISION DECREED.  229 APP. DIV. 637, 243 N.Y.S. 35.  BUT THE
COURT OF APPEALS REVERSED AND THE SCRAMBLE AMONG THE FOREIGN CLAIMANTS
WAS ALLOWED TO PROCEED.  255 N.Y. 415, 175 N.E. 114.  THE COURT OF
APPELAS HELD THAT THE RETENTION OF THE SURPLUS FUNDS IN THE CUSTODY OF
THE SUPERINTENDENT OF INSURANCE UNTIL THE INTERNATIONAL RELATIONS
BETWEEN THE UNITED STATES AND RUSSIA HAD BEEN FORMALIZED "DID NOT SOLVE
THE PROBLEM.  IT ADJOURNED IT SINE DIE."  BUT ADJOURNMENT, IT MAY BE
SUGGESTED, IS SOMETIMES A CONSTRUCTIVE INTERIM SOLUTION TO AVOID A
TEMPORIZING AND PREMATURE MEASURE GIVING RISE TO NEW DIFFICULTIES. 
SUCH I BELIEVE TO HAVE BEEN THE MISCHIEF THAT WAS BOUND TO FOLLOW THE
REJECTION OF THE SUPERINTENDENT'S POLICY OF CONSERVATION OF THE SURPLUS
RUSSIAN FUNDS UNTIL RECOGNITION.  THEIR DISPOSITION WAS INESCAPABLY
ENTANGLED IN RECOGNITION. 

IN THE IMMEDIATE CASE THE UNITED STATES SUES, IN EFFECT, AS THE
ASSIGNEE OF THE RUSSIAN GOVERNMENT FOR CLAIMS BY THAT GOVERNMENT
AGAINST THE RUSSIAN INSURANCE COMPANY FOR MONIES IN DEPOSIT IN NEW YORK
TO WHICH NO AMERICAN CITIZEN MAKES CLAIM.  NO MANNER OF SPEECH CAN
CHANGE THE CENTRAL FACT THAT HERE ARE MONIES WHICH BELONGED TO A
RUSSIAN COMPANY AND FOR WHICH THE RUSSIAN GOVERNMENT HAS DECREED
PAYMENT TO ITSELF. 

AND SO THE QUESTION IS WHETHER NEW YORK CAN BAR RUSSIA FROM REALIZING
ON ITS DECREES AGAINST THESE FUNDS IN NEW YORK AFTER FORMAL RECOGNITION
BY THE UNITED STATES OF RUSSIA AND IN LIGHT OF THE CIRCUMSTANCES THAT
LED UP TO RECOGNITION AND THE EXCHANGE OF NOTES THAT ATTENDED IT.  FOR
NEW YORK TO DENY THE EFFECTIVENESS OF THESE RUSSIAN DECREES UNDER SUCH
CIRCUMSTANCES WOULD BE TO OPPOSE, AT LEAST IN SOME RESPECTS, ITS
NOTIONS AS TO THE EFFECT WHICH SHOULD BE ACCORDED RECOGNITION AS
AGAINST THAT ENTERTAINED BY THE NATIONAL AUTHORITY FOR CONDUCTING OUR
FOREIGN AFFAIRS.  AND THE RESULT IS THE SAME WHETHER NEW YORK
ACCOMPLISHES IT BECAUSE ITS COURTS INVOKE JUDICIAL VIEWS REGARDING THE
ENFORCEMENT OF FOREIGN EXPROPRIATION DECREES, OR REGARDING THE SURVIVAL
IN NEW YORK OF A RUSSIAN BUSINESS WHICH ACCORDING TO RUSSIAN LAW HAD
CEASED TO EXIST, OR REGARDING THE POWER OF NEW YORK COURTS OVER FUNDS
OF RUSSIAN COMPANIES OWING FROM NEW YORK CREDITORS.  IF THIS COURT IS
NOT BOUND BY THE CONSTRUCTION WHICH THE NEW YORK COURT OF APPEALS
PLACES UPON COMPLICATED TRANSACTIONS IN NEW YORK IN DETERMINING WHETHER
THEY COME WITHIN THE PROTECTION OF THE CONSTITUTION AGAINST IMPAIRING
THE OBLIGATIONS OF CONTRACT, WE CERTAINLY SHOULD NOT BE BOUND BY THAT
COURT'S CONSTRUCTION OF TRANSACTIONS SO ENTANGLED IN INTERNATIONAL
SIGNIFICANCE AS THE STATUS OF NEW YORK BRANCHES OF RUSSIAN COMPANIES
AND THE DISPOSITION OF THEIR ASSETS.  COMPARE APPLEBY V. CITY OF NEW
YORK, 271 U.S. 364 AND IRVING TRUST CO. V. DAY, 314 U.S. 556.  WHEN THE
DECISION OF A QUESTION OF FACT OR OF LOCAL LAW IS SO INTERWOVEN WITH
THE DECISION OF A QUESTION OF NATIONAL AUTHORITY THAT THE ONE
NECESSARILY INVOLVES THE OTHER, WE ARE NOT FORECLOSED BY THE STATE
COURT'S DETERMINATION OF THE FACTS OR OF THE LOCAL LAW.  OTHERWISE,
NATIONAL AUTHORITY COULD BE FRUSTRATED BY LOCAL RULINGS.  SEE CRESWILL
V. KNIGHTS OF PYTHIAS, 225 U.S. 246; DAVIS V. WECHSLER, 263 U.S. 22. 

IT IS NOT CONSONANT WITH THE STURDY CONDUCT OF OUR FOREIGN RELATIONS
THAT THE EFFECT OF RUSSIAN DECREES UPON RUSSIAN FUNDS IN THIS COUNTRY
SHOULD DEPEND ON SUCH GOSSAMER DISTINCTIONS AS THOSE BY WHICH COURTS
HAVE DETERMINED THAT RUSSIAN BRANCHES SURVIVE THE DEATH OF THEIR
RUSSIAN ORIGIN.  WHEN COURTS DEAL WITH SUCH ESSENTIALLY POLITICAL
PHENOMENA AS THE TAKING OVER OF RUSSIAN BUSINESSES BY THE RUSSIAN
GOVERNMENT BY RESORTING TO THE FORMS AND PHRASES OF CONVENTIONAL
CORPORATION LAW, THEY INEVITABLY FALL INTO A DIALECTIC QUAGMIRE.  WITH
COMMENDABLE CANDOR, THE HOUSE OF LORDS FRANKLY CONFESSED AS MUCH WHEN
IT PRACTICALLY OVERRULED RUSSIAN COMMERCIAL & INDUSTRIAL BANK V.
COMPTOIR D'ESCOMPTE DE MULHOUSE, SUPRA, SAYING THROUGH LORD WRIGHT,
"THE WHOLE MATTER HAS NOW TO BE RECONSIDERED IN THE LIGHT OF NEW
EVIDENCE AND OF THE HISTORICAL EVOLUTION OF TEN YEARS."  LAZARD
BROTHERS & CO. V. MIDLAND BANK, (1933) A.C. 289, 300. 

FOR WE ARE NOT DEALING HERE WITH PHYSICAL PROPERTY - WHETHER CHATTELS
OR REALTY.  WE ARE DEALING WITH INTANGIBLE RIGHTS, WITH CHOSES IN
ACTION.  THE FACT THAT THESE CLAIMS WERE REDUCED TO MONEY DOES NOT
CHANGE THE CHARACTER OF THE CLAIMS, AND CERTAINLY IS TOO TENUOUS A
THREAD ON WHICH TO DETERMINE ISSUES AFFECTING THE RELATION BETWEEN
NATIONS.  CORPOREAL PROPERTY MAY GIVE RISE TO RULES OF LAW WHICH, WE
HAVE HELD, EVEN IN PURELY DOMESTIC CONTROVERSIES OUGHT NOT TO BE
TRANSFERRED TO THE ADJUDICATION OF IMPALPABLE CLAIMS SUCH AS ARE HERE
IN CONTROVERSY.  CURRY V. MCCANLESS, 307 U.S. 357, 363 ET SEQ. 

AS BETWEEN THE STATES, DUE REGARD FOR THEIR RESPECTIVE GOVERNMENTAL
ACTS IS WRITTEN INTO THE CONSTITUTION BY THE FULL FAITH AND CREDIT
CLAUSE (ART. IV, SEC. 1).  BUT THE SCOPE OF ITS OPERATION - WHEN MAY
THE POLICY OF ONE STATE DENY THE CONSEQUENCES OF A TRANSACTION
AUTHORIZED BY THE LAWS OF ANOTHER - HAS GIVEN RISE TO A LONG HISTORY OF
JUDICIAL SUBTLETIES WHICH HARDLY COMMEND THEMSELVES FOR TRANSFER TO THE
SOLUTION OF ANALOGOUS PROBLEMS BETWEEN FRIENDLY NATIONS.  SEE
HUNTINGTON V. ATTRILL, 146 U.S. 657; FINNEY V. GUY, 189 U.S. 335;
MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268; PACIFIC INS. CO. V.
INDUSTRIAL COMM'N, 306 U.S. 493, 502; PINK V. A.A.A. HIGHWAY EXPRESS,
314 U.S. 201.    FOR MORE THAN FIFTEEN YEARS, FORMAL RELATIONS BETWEEN
THE UNITED STATES AND RUSSIA WERE BROKEN BECAUSE OF SERIOUS DIFFERENCES
BETWEEN THE TWO COUNTRIES REGARDING THE CONSEQUENCES TO US OF TWO MAJOR
RUSSIAN POLICIES.  THIS COMPLICATED PROCESS OF FRICTION, ABSTENTION
FROM FRIENDLY RELATIONS, EFFORTS AT ACCOMMODATION, AND NEGOTIATIONS FOR
REMOVING THE CAUSES OF FRICTION, ARE SUMMARIZED BY THE DELUSIVELY
SIMPLE CONCEPT OF "NON-RECOGNITION."  THE HISTORY OF RUSSO-AMERICAN
RELATIONS LEAVES NO ROOM FOR DOUBT THAT THE TWO UNDERLYING SOURCES OF
DIFFICULTY WERE RUSSIAN PROPAGANDA AND EXPROPRIATION.  HAD ANY STATE
COURT DURING THIS PERIOD GIVEN COMFORT TO THE RUSSIAN VIEWS IN THIS
CONTEST BETWEEN ITS GOVERNMENT AND OURS, IT WOULD, TO THAT EXTENT, HAVE
INTERFERED WITH THE CONDUCT OF OUR FOREIGN RELATIONS BY THE EXECUTIVE,
EVEN IF IT HAD PURPORTED TO DO SO UNDER THE GUISE OF ENFORCING STATE
LAW IN A MATTER OF LOCAL POLICY.  ON THE CONTRARY, DURING THIS PERIOD
OF NON-RECOGNITION NEW YORK DENIED RUSSIA ACCESS TO HER COURTS AND DID
SO ON THE SINGLE AND CONCLUSIVE GROUND:  "WE SHOULD DO NOTHING TO
THWART THE POLICY WHICH THE UNITED STATES HAS ADOPTED."  RUSSIAN
REPUBLIC V. CIBRARIO, 235 N.Y. 255, 263, 139 N.E. 259, 262.  SIMILARLY,
NO INVOCATION OF A LOCAL RULE GOVERNING "SITUS" OR THE SURVIVAL OF A
DOMESTICATED CORPORATION, HOWEVER APPLICABLE IN AN ORDINARY CASE, IS
WITHIN THE COMPETENCE OF A STATE COURT IF IT WOULD THWART TO ANY EXTENT
"THE POLICY WHICH THE UNITED STATES HAS ADOPTED" WHEN THE PRESIDENT
REESTABLISHED FRIENDLY RELATIONS IN 1933. 

AND IT WOULD BE THWARTED IF THE JUDGMENT BELOW WERE ALLOWED TO
STAND. 

THAT THE PRESIDENT'S CONTROL OF FOREIGN RELATIONS INCLUDES THE
SETTLEMENT OF CLAIMS IS INDISPUTABLE.  THUS, REFERRING TO THE ADHESION
OF THE UNITED STATES TO THE DAWES PLAN, SECRETARY OF STATE HUGHES
REPORTED THAT "THIS AGREEMENT WAS NEGOTIATED UNDER THE LONG-RECOGNIZED
AUTHORITY OF THE PRESIDENT TO ARRANGE FOR THE PAYMENT OF CLAIMS IN
FAVOR OF THE UNITED STATES AND ITS NATIONALS.  THE EXERCISE OF THIS
AUTHORITY HAS MANY ILLUSTRATIONS, ONE OF WHICH IS THE AGREEMENT OF 1901
FOR THE SO-CALLED BOXER INDEMNITY."  (SECRETARY HUGHES TO PRESIDENT
COOLIDGE, FEBRUARY 3, 1925, MS., DEPARTMENT OF STATE, QUOTED IN 5
HACKWORTH, DIGEST OF INT. LAW, C. 16, SEC. 514.)  THE PRESIDENT'S POWER
TO NEGOTIATE SUCH A SETTLEMENT IS THE SAME WHETHER IT IS AN ISOLATED
TRANSACTION BETWEEN THIS COUNTRY AND A FRIENDLY NATION, OR IS PART OF A
COMPLICATED NEGOTIATION TO RESTORE NORMAL RELATIONS, AS WAS THE CASE
WITH RUSSIA. 

THAT THE POWER TO ESTABLISH SUCH NORMAL RELATIONS WITH A FOREIGN
COUNTRY BELONGS TO THE PRESIDENT IS EQUALLY INDISPUTABLE.  RECOGNITION
OF A FOREIGN COUNTRY IS NOT A THEORETICAL PROBLEM OR AN EXERCISE IN
ABSTRACT SYMBOLISM.  IT IS THE ASSERTION OF NATIONAL POWER DIRECTED
TOWARDS SAFEGUARDING AND PROMOTING OUR INTERESTS AND THOSE OF
CIVILIZATION.  RECOGNITION OF A REVOLUTIONARY GOVERNMENT NORMALLY
INVOLVES THE REMOVAL OF AREAS OF FRICTION.  AS OFTEN AS NOT, AREAS OF
FRICTION ARE REMOVED BY THE ADJUSTMENT OF CLAIMS PRESSED BY THIS
COUNTRY ON BEHALF OF ITS NATIONALS AGAINST A NEW REGIME. 

SUCH A SETTLEMENT WAS MADE BY THE PRESIDENT WHEN THIS COUNTRY RESUMED
NORMAL RELATIONS WITH RUSSIA.  THE TWO CHIEF BARRIERS TO RENEWED
FRIENDSHIP WITH RUSSIA - INTRUSIVE PROPAGANDA AND THE EFFECTS OF
EXPROPRIATION DECREES UPON OUR NATIONALS - WERE AT THE CORE OF OUR
NEGOTIATIONS IN 1933, AS THEY HAD BEEN FOR A GOOD MANY YEARS.  THE
EXCHANGES BETWEEN THE PRESIDENT AND M. LITVINOV MUST BE READ NOT IN
ISOLATION BUT AS THE CULMINATION OF DIFFICULTIES AND DEALINGS EXTENDING
OVER FIFTEEN YEARS.  AND THEY MUST BE READ NOT AS SELF-CONTAINED
TECHNICAL DOCUMENTS, LIKE A MARINE INSURANCE CONTRACT OR A BILL OF
LADING, BUT AS CHARACTERISTICALLY DELICATE AND ELUSIVE EXPRESSIONS OF
DIPLOMACY.  THE DRAFTSMEN OF SUCH NOTES MUST SAVE SENSIBILITIES AND
AVOID THE EXPLICITNESS ON WHICH DIPLOMATIC NEGOTIATIONS SO EASILY
FOUNDER. 

THE CONTROLLING HISTORY OF THE SOVIET REGIME AND OF THIS COUNTRY'S
RELATIONS WITH IT MUST BE READ BETWEEN THE LINES OF THE ROOSEVELT
LITVINOV AGREEMENT.  ONE NEEDS TO BE NO EXPERT IN RUSSIAN LAW TO KNOW
THAT THE EXPROPRIATION DECREES INTENDED TO SWEEP THE ASSETS OF RUSSIAN
COMPANIES TAKEN OVER BY THAT GOVERNMENT INTO RUSSIA'S CONTROL NO MATTER
WHERE THOSE ASSETS WERE CREDITED.  EQUALLY CLEAR IS IT THAT THE
ASSIGNMENT BY RUSSIA MEANT TO GIVE THE UNITED STATES, AS PART OF THE
COMPREHENSIVE SETTLEMENT, EVERYTHING THAT RUSSIA CLAIMED UNDER ITS LAWS
AGAINST RUSSIANS.  IT DOES VIOLENCE TO THE COURSE OF NEGOTIATIONS
BETWEEN THE UNITED STATES AND RUSSIA, AND TO THE SCOPE OF THE FINAL
ADJUSTMENT, TO ASSUME THAT A SETTLEMENT THUS MADE ON BEHALF OF THE
UNITED STATES - TO SETTLE BOTH MONEY CLAIMS AND TO SOOTHE FEELINGS -
WAS TO BE QUALIFIED BY THE VARIANT NOTIONS OF THE COURTS OF THE FORTY
EIGHT STATES REGARDING "SITUS" OR "JURISDICTION" OVER INTANGIBLES OR
THE SURVIVAL OF EXTINCT RUSSIAN CORPORATIONS.  IN OUR DEALINGS WITH THE
OUTSIDE WORLD, THE UNITED STATES SPEAKS WITH ONE VOICE AND ACTS AS ONE,
UNEMBARRASSED BY THE COMPLICATIONS AS TO DOMESTIC ISSUES WHICH ARE
INHERENT IN THE DISTRIBUTION OF POLITICAL POWER BETWEEN THE NATIONAL
GOVERNMENT AND THE INDIVIDUAL STATES. 

MR. CHIEF JUSTICE STONE, DISSENTING: 

I THINK THE JUDGMENT SHOULD BE AFFIRMED. 

AS MY BRETHREN ARE CONTENT TO REST THEIR DECISION ON THE AUTHORITY OF
THE DICTUM IN UNITED STATES V. BELMONT, 301 U.S. 324, WITHOUT THE AID
OF ANY PERTINENT DECISION OF THIS COURT, I THINK A WORD SHOULD BE SAID
OF THE AUTHORITY AND REASONING OF THE BELMONT CASE AND OF THE
PRINCIPLES WHICH I THINK ARE CONTROLLING HERE. 

IN THE BELMONT CASE, THE UNITED STATES BROUGHT SUIT IN THE FEDERAL
COURT TO RECOVER A DEBT ALLEGED TO BE DUE UPON A DEPOSIT ACCOUNT OF A
RUSSIAN NATIONAL WITH A NEW YORK BANKER.  THE COMPLAINT SET UP THE
CONFISCATION OF THE ACCOUNT BY DECREES OF THE SOVIET GOVERNMENT AND THE
TRANSFER OF THE DEBT TO THE UNITED STATES BY THE LITVINOV ASSIGNMENT,
CONCURRENTLY WITH OUR DIPLOMATIC RECOGNITION OF THAT GOVERNMENT.  IT
WAS NOT ALLEGED, NOR DID IT APPEAR, THAT THE NEW YORK COURTS HAD,
SUBSEQUENT TO RECOGNITION, REFUSED TO GIVE EFFECT TO THE SOVIET DECREES
AS OPERATING TO TRANSFER THE TITLE OF RUSSIAN NATIONALS TO PROPERTY
LOCATED IN NEW YORK.  NO SUCH NATIONAL OR ANY ADVERSE CLAIMANT WAS A
PARTY TO THE SUIT.  IN SUSTAINING THE COMPLAINT AGAINST DEMURRER, THIS
COURT SAID (P. 332):  "IN SO HOLDING, WE DEAL ONLY WITH THE CASE AS NOW
PRESENTED AND WITH THE PARTIES NOW BEFORE US.  WE DO NOT CONSIDER THE
STATUS OF ADVERSE CLAIMS, IF THERE BE ANY, OF OTHERS NOT PARTIES TO
THIS ACTION.  AND NOTHING WE HAVE SAID IS TO BE CONSTRUED AS
FORECLOSING THE ASSERTION OF ANY SUCH CLAIM TO THE FUND INVOLVED, BY
INTERVENTION OR OTHER APPROPRIATE PROCEEDING.  WE DECIDE ONLY THAT THE
COMPLAINT ALLEGES FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION
AGAINST THE RESPONDENTS." 

THE QUESTIONS THUS EXPLICITLY RESERVED ARE PRESENTED BY THE CASE NOW
BEFORE US.  THE COURTS OF NEW YORK, IN THE EXERCISE OF THE
CONSTITUTIONAL AUTHORITY ORDINARILY POSSESSED BY STATE COURTS TO
DECLARE THE RULES OF LAW APPLICABLE TO PROPERTY LOCATED WITHIN THEIR
TERRITORIAL LIMITS, HAVE REFUSED TO RECOGNIZE THE SOVIET DECREES AS
DEPRIVING CREDITORS AND OTHER CLAIMANTS REPRESENTING THE INTERESTS OF
THE INSURANCE COMPANY OF THEIR RIGHTS UNDER NEW YORK LAW.  NUMEROUS
INDIVIDUAL CREDITORS AND OTHER CLAIMANTS, AND THE NEW YORK
SUPERINTENDENT OF INSURANCE, WHO REPRESENTS ALL CLAIMANTS, ARE PARTIES
TO THE PRESENT SUIT AND ASSERT THEIR CLAIMS TO THE EXCLUSION OF THE
UNITED STATES. 

IT IS TRUE THAT THIS COURT, IN THE BELMONT CASE, INDULGED IN SOME
REMARKS AS TO THE EFFECT ON NEW YORK LAW OF OUR DIPLOMATIC RECOGNITION
OF THE SOVIET GOVERNMENT AND OF THE ASSIGNMENT OF ALL ITS CLAIMS
AGAINST AMERICAN NATIONALS TO THE UNITED STATES.  UPON THE BASIS OF
THESE OBSERVATIONS IT THOUGHT THAT THE NEW YORK COURTS WERE BOUND TO
RECOGNIZE AND APPLY THE SOVIET DECREES TO PROPERTY WHICH WAS LOCATED IN
NEW YORK WHEN THE DECREES WERE PROMULGATED.  BUT ALL THIS WAS
PREDICATED UPON THE MISTAKEN ASSUMPTION THAT BY DISREGARDING THE
DECREES THE NEW YORK COURTS WOULD BE GIVING AN EXTRATERRITORIAL EFFECT
TO NEW YORK LAW.  THESE OBSERVATIONS WERE IRRELEVANT TO THE DECISION
THERE ANNOUNCED AND, FOR REASONS SHORTLY TO BE GIVEN, I THINK PLAINLY
INAPPLICABLE HERE.  THEY WERE BUT OBITER DICTA WHICH, SO FAR AS THEY
HAVE NOT BEEN DISCREDITED BY OUR DECISION IN GUARANTY TRUST CO. V.
UNITED STATES, 304 U.S. 126, AND SO FAR AS THEY NOW MERIT IT "MAY BE
RESPECTED, BUT OUGHT NOT TO CONTROL THE JUDGMENT IN A SUBSEQUENT SUIT,
WHEN THE VERY POINT IS PRESENTED FOR DECISION."  CHIEF JUSTICE MARSHALL
IN COHENS V. VIRGINIA, 6 WHEAT.  264, 399; MR. JUSTICE SUTHERLAND IN
WILLIAMS V. UNITED STATES, 289 U.S. 553, 568. 

WE HAVE NO CONCERN HERE WITH THE WISDOM OF THE RULES OF LAW WHICH THE
NEW YORK COURTS HAVE ADOPTED IN THIS CASE OR THEIR CONSONANCE WITH THE
MOST ENLIGHTENED PRINCIPLES OF JURISPRUDENCE.  STATE QUESTIONS DO NOT
BECOME FEDERAL QUESTIONS BECAUSE THEY ARE DIFFICULT OR BECAUSE WE MAY
THINK THAT THE STATE COURTS HAVE GIVEN WRONG ANSWERS TO THEM.  THE ONLY
QUESTIONS BEFORE US ARE WHETHER NEW YORK HAS CONSTITUTIONAL AUTHORITY
TO ADOPT ITS OWN RULES OF LAW DEFINING RIGHTS IN PROPERTY LOCATED IN
THE STATE, AND, IF SO, WHETHER THAT AUTHORITY HAS BEEN CURTAILED BY THE
EXERCISE OF A SUPERIOR FEDERAL POWER BY RECOGNITION OF THE SOVIET
GOVERNMENT AND ACCEPTANCE OF ITS ASSIGNMENT TO THE UNITED STATES OF
CLAIMS AGAINST AMERICAN NATIONALS, INCLUDING THE NEW YORK PROPERTY. 

I SHALL STATE MY GROUNDS FOR THINKING THAT THE PRONOUNCEMENTS IN THE
BELMONT CASE, ON WHICH THE COURT RELIES FOR THE ANSWER TO THESE
QUESTIONS, ARE WITHOUT THE SUPPORT OF REASON OR ACCEPTED PRINCIPLES OF
LAW.  NO ONE DOUBTS THAT THE SOVIET DECREES ARE THE ACTS OF THE
GOVERNMENT OF THE RUSSIAN STATE, WHICH IS SOVEREIGN IN ITS OWN
TERRITORY, AND THAT IN CONSEQUENCE OF OUR RECOGNITION OF THAT
GOVERNMENT THEY WILL BE SO TREATED BY OUR STATE DEPARTMENT.  AS SUCH,
WHEN THEY AFFECT PROPERTY WHICH WAS LOCATED IN RUSSIA AT THE TIME OF
THEIR PROMULGATION, THEY ARE SUBJECT TO INQUIRY, IF AT ALL, ONLY
THROUGH OUR STATE DEPARTMENT AND NOT IN OUR COURTS.  UNDERHILL V.
HERNANDEZ, 168 U.S. 250; OETJEN V. CENTRAL LEATHER CO., 246 U.S. 297;
RICAUD V. AMERICAN METAL CO., 246 U.S. 304, 308-10; SALIMOFF & CO. V.
STANDARD OIL CO., 262 N.Y. 220, 186 N.E. 679.  BUT THE PROPERTY TO
WHICH THE NEW YORK JUDGMENT RELATES HAS AT ALL RELEVANT TIMES BEEN IN
NEW YORK IN THE CUSTODY OF THE SUPERINTENDENT OF INSURANCE AS SECURITY
FOR THE POLICIES OF THE INSURANCE COMPANY, AND IS NOW IN THE
SUPERINTENDENT'S CUSTODY AS LIQUIDATOR ACTING UNDER THE DIRECTION OF
THE NEW YORK COURTS.  UNITED STATES V. BANK OF NEW YORK CO., 296 U.S.
463, 478-79.  IN ADMINISTERING AND DISTRIBUTING THE PROPERTY THUS
WITHIN THEIR CONTROL, THE NEW YORK COURTS ARE FREE TO APPLY THEIR OWN
RULES OF LAW, INCLUDING THEIR OWN DOCTRINES OF CONFLICT OF LAWS, SEE
ERIE R. CO. V. TOMPKINS, 304 U.S. 64, 78; GRIFFIN V. MCCOACH, 313 U.S.
498; KRYGER V. WILSON, 242 U.S. 171, 176, EXCEPT INSOFAR AS THEY ARE
SUBJECT TO THE REQUIREMENTS OF THE FULL FAITH AND CREDIT CLAUSE - A
CLAUSE APPLICABLE ONLY TO THE JUDGMENTS AND PUBLIC ACTS OF STATES OF
THE UNION AND NOT THOSE OF FOREIGN STATES.  AETNA LIFE INSURANCE CO. V.
TREMBLAY, 223 U.S. 185; CF. BANK OF AUGUSTA V. EARLE, 13 PET. 519, 589
90; BOND V. HUME, 243 U.S. 15, 21-22. 

THIS COURT HAS REPEATEDLY DECIDED THAT THE EXTENT TO WHICH A STATE
COURT WILL FOLLOW THE RULES OF LAW OF A RECOGNIZED FOREIGN COUNTRY IN
PREFERENCE TO ITS OWN IS WHOLLY A MATTER OF COMITY, AND THAT, IN THE
ABSENCE OF RELEVANT TREATY OBLIGATIONS, THE APPLICATION IN THE COURTS
OF A STATE OF ITS OWN RULES OF LAW RATHER THAN THOSE OF A FOREIGN
COUNTRY RAISES NO FEDERAL QUESTION.  ROSE V. HIMELY, 4 CRANCH 241;
HARRISON V. STERRY, 5 CRANCH 289; UNITED STATES V. CROSBY, 7 CRANCH
115; OAKEY V. BENNETT, 11 HOW.  33, 43-46; HILTON V. GUYOT, 159 U.S.
113, 165-66; DISCONTO GESELLSCHAFT V. UMBREIT, 208 U.S. 570; CF. BAGLIN
V. CUSENIER CO., 221 U.S. 580, 594-97; UNITED STATES V. GUARANTY TRUST
CO., 293 U.S. 340, 345-47.  THIS IS EQUALLY THE CASE WHEN A STATE OF
THE UNION REFUSES TO APPLY THE LAW OF A SISTER STATE, IF THERE IS NO
QUESTION OF FULL FAITH AND CREDIT, KRYGER V. WILSON, SUPRA; FINNEY V.
GUY, 189 U.S. 335, 340, 346; ALROPA CORP. V. KIRCHWEHM, 313 U.S. 549;
SEE MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268, 272-73, OR DUE
PROCESS, HOME INS. CO. V. DICK, 281 U.S. 397.  SO CLEARLY WAS THIS
THOUGHT TO BE AN APPROPRIATE EXERCISE OF THE POWER OF A FORUM OVER
PROPERTY WITHIN ITS TERRITORIAL JURISDICTION THAT THIS COURT, IN
INGENOHL V. OLSEN & CO., 273 U.S. 541, 544-45, ACCEPTED AS BEYOND ALL
DOUBT THE RIGHT OF THE BRITISH COURTS IN HONG KONG TO REFUSE
RECOGNITION TO THE AMERICAN ALIEN PROPERTY CUSTODIAN'S TRANSFER OF
EXCLUSIVE RIGHTS TO THE USE OF A TRADEMARK IN HONG KONG, AND THE COURT
GAVE EFFECT HERE TO THE HONG KONG JUDGMENT. 

IN THE APPLICATION OF THIS DOCTRINE, THIS COURT HAS OFTEN HELD THAT A
STATE, FOLLOWING ITS OWN LAW AND POLICY, MAY REFUSE TO GIVE EFFECT TO A
TRANSFER MADE ELSEWHERE OF PROPERTY WHICH IS WITHIN ITS OWN TERRITORIAL
LIMITS.  GREEN V. VAN BUSKIRK, 5 WALL.  307, 311-12; HERVEY V. RHODE
ISLAND LOCOMOTIVE WORKS, 93 U.S. 664; SECURITY TRUST CO. V. DODD, MEAD
& CO., 173 U.S. 624; CLARK V. WILLIARD, 292 U.S. 112, 122; CLARK V.
WILLIARD, 294 U.S. 211.  SO FAR IS A STATE FREE IN THIS RESPECT THAT
THE FULL FAITH AND CREDIT CLAUSE DOES NOT PRECLUDE THE ATTACHMENT BY
LOCAL CREDITORS OF THE PROPERTY WITHIN THE STATE OF A FOREIGN
CORPORATION, ALL OF WHOSE PROPERTY HAS BEEN PREVIOUSLY TRANSFERRED IN
THE STATE OF ITS INCORPORATION TO A STATUTORY SUCCESSOR FOR THE BENEFIT
OF CREDITORS.  CLARK V. WILLIARD, SUPRA; FISCHER V. AMERICAN UNITED
LIFE INS. CO., 314 U.S. 549.  DUE PROCESS UNDER THE FIFTH AMENDMENT,
THE BENEFITS OF WHICH EXTEND TO ALIEN FRIENDS AS WELL AS TO CITIZENS,
RUSSIAN VOLUNTEER FLEET V. UNITED STATES, 282 U.S. 481, DOES NOT CALL
FOR ANY DIFFERENT CONCLUSION.  DISCONTO GESELLSCHAFT V. UMBREIT, SUPRA,
579-80.    AT LEAST SINCE 1797, BARCLAY V. RUSSELL, 3 VESEY, JR., 424,
428, 433, THE ENGLISH COURTS HAVE CONSISTENTLY HELD THAT FOREIGN
CONFISCATORY DECREES DO NOT OPERATE TO TRANSFER TITLE TO PROPERTY
LOCATED IN ENGLAND, EVEN IF THE DECREES WERE SO INTENDED, WHETHER THE
FOREIGN GOVERNMENT HAS OR HAS NOT BEEN RECOGNIZED BY THE BRITISH
GOVERNMENT.  LECOUTURIER V. REY, (1910) A.C. 262, 265.  CF. ALSO
FOLLIOTT V. OGDEN, 1 H. BLACK.  123, 135-36, AFFIRMED 3 T.R. 726,
AFFIRMED, 4 BROWN'S CASES IN PARL., 111; AND WOLFF V. OXHOLM, 6 M. & S.
92, BOTH OF WHICH MAY HAVE CARRIED THE DOCTRINE OF NONRECOGNITION OF
FOREIGN CONFISCATORY DECREES EVEN FURTHER.  SEE HOLDSWORTH, THE HISTORY
OF ACTS OF STATE IN ENGLISH LAW, 41 COLUMBIA L. REV. 1313, 1325-26. 
THE ENGLISH COURTS HAVE APPLIED THIS RULE IN LITIGATION ARISING OUT OF
THE RUSSIAN DECREES, HOLDING THAT THEY ARE NOT EFFECTUAL TO TRANSFER
TITLE TO PROPERTY SITUATED IN GREAT BRITAIN.  SEDGWICK COLLINS & CO. V.
ROSSIA INSURANCE CO., (1926) 1 K.B. 1, 15, AFFIRMED, (1927) A.C. 95;
THE JUPITER (NO. 3), (1927) P. 122, 144-46, AFFIRMED, (1927) P. 250,
253-55; IN RE RUSSIAN BANK FOR FOREIGN TRADE, (1933) 1 CH. 745, 767
68.  THE SAME DOCTRINE HAS PREVAILED IN THE CASE OF THE SPANISH
CONFISCATORY DECREES, BANCO DE VIZCAYA V. DON ALFONSO, (1935) 1 K.B.
140, 144-45, AS WELL AS WITH RESPECT TO SEIZURES BY THE AMERICAN ALIEN
PROPERTY CUSTODIAN.  SUTHERLAND V. ADMINISTRATOR OF GERMAN PROPERTY,
(1934) 1 K.B. 423; AND SEE THE DECISION OF THE BRITISH COURT FOR HONG
KONG DISCUSSED IN INGENOHL V. OLSEN & CO., SUPRA, AND THE PRIVY
COUNCIL'S DECISION IN INGENOHL V. WING ON & CO., 44 PATENTS JOURNAL
343, 359-60.  IN NO CASE IN WHICH THERE WAS OCCASION TO DECIDE THE
QUESTION HAS RECOGNITION BEEN THOUGHT TO HAVE SUBORDINATED THE LAW OF
THE FORUM, WITH RESPECT TO PROPERTY SITUATED WITHIN ITS TERRITORIAL
JURISDICTION, TO THAT OF THE RECOGNIZED STATE.  NEVER HAS THE FORUM'S
REFUSAL TO FOLLOW FOREIGN TRANSFERS OF TITLE TO SUCH PROPERTY BEEN
CONSIDERED INCONSISTENT WITH THE MOST FRIENDLY RELATIONS WITH THE
RECOGNIZED FOREIGN GOVERNMENT, OR EVEN WITH AN ACTIVE MILITARY ALLIANCE
AT THE TIME OF THE TRANSFER. 

IT IS PLAIN THAT UNDER NEW YORK LAW THE CLAIMANTS IN THIS CASE, BOTH
CREDITORS AND THOSE ASSERTING RIGHTS OF THE INSURANCE COMPANY, HAVE
ENFORCIBLE RIGHTS, WITH RESPECT TO THE PROPERTY LOCATED THERE, WHICH
HAVE BEEN RECOGNIZED THOUGH NOT CREATED BY THE JUDGMENTS OF ITS
COURTS.  THE CONCLUSION IS INESCAPABLE THAT, HAD THERE BEEN NO
ASSIGNMENT AND THIS SUIT HAD BEEN MAINTAINED BY THE SOVIET GOVERNMENT
SUBSEQUENT TO RECOGNITION, OR BY A PRIVATE INDIVIDUAL CLAIMING UNDER AN
ASSIGNMENT FROM IT, THE DECISION OF THE NEW YORK COURT WOULD HAVE
PRESENTED NO QUESTION REVIEWABLE HERE. 

THE ONLY QUESTION REMAINING IS WHETHER THE CIRCUMSTANCES IN THE
PRESENT CASE, THAT THE RUSSIAN DECREES PRECEDED RECOGNITION AND THAT
THE ASSIGNMENT WAS TO THE UNITED STATES, WHICH HERE APPEARS IN THE ROLE
OF PLAINTIFF, CALL FOR ANY DIFFERENT RESULT.  IF THEY DO, THEN
RECOGNITION AND THE ASSIGNMENT HAVE OPERATED TO GIVE TO THE UNITED
STATES RIGHTS WHICH ITS ASSIGNOR DID NOT HAVE.  THEY HAVE COMPELLED THE
STATE TO SURRENDER ITS OWN RULES OF LAW APPLICABLE TO PROPERTY WITHIN
ITS LIMITS, AND TO SUBSTITUTE RULES OF RUSSIAN LAW FOR THEM.  A POTENCY
WOULD THUS BE ATTRIBUTED TO THE RECOGNITION AND ASSIGNMENT WHICH IS
LACKING TO THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION.  SEE
CLARK V. WILLIARD, SUPRA; FISCHER V. AMERICAN UNITED LIFE INS. CO.,
SUPRA. 

IN DECIDING ANY FEDERAL QUESTION INVOLVED, IT CAN MAKE NO DIFFERENCE
TO US WHETHER NEW YORK HAS CHOSEN TO EXPRESS ITS PUBLIC POLICY BY
STATUTE OR MERELY BY THE COMMON LAW DETERMINATIONS OF ITS COURTS.  ERIE
R. CO. V. TOMPKINS, SUPRA, 304 U.S. 64; SKIRIOTES V. FLORIDA, 313 U.S.
69, 79; HEBERT V. LOUISIANA, 272 U.S. 312, 316.  THE STATE COURT'S
REPEATED DECLARATION OF A POLICY OF TREATING THE NEW YORK BRANCH OF THE
INSURANCE COMPANY AS A "COMPLETE AND SEPARATE ORGANIZATION" WOULD
PERMIT SATISFACTION OF WHATEVER CLAIMS OF FOREIGN CREDITORS, AS WELL AS
THOSE OF SISTER STATES, THAT NEW YORK DEEMS PROVABLE AGAINST THE LOCAL
FUND.  BUT IF MY BRETHREN ARE CORRECT IN CONCLUDING THAT ALL FOREIGN
CREDITORS MUST BE DEPRIVED OF ACCESS TO THE FUND, IT WOULD SEEM TO
FOLLOW - SINCE THE SOVIET DECREES HAVE EXEMPTED NO CLASS OF CREDITORS -
THAT THE RIGHTS OF CREDITORS IN NEW YORK OR IN SISTER STATES, OR ANY
OTHER RIGHTS IN THE PROPERTY RECOGNIZED BY NEW YORK LAW, MUST EQUALLY
BE OUSTED BY VIRTUE OF THE EXTRATERRITORIAL EFFECT GIVEN TO THE DECREES
BY THE PRESENT DECISION.  FOR, STATUTORY PRIORITIES OF NEW YORK
POLICYHOLDERS OR NEW YORK LIENHOLDERS, AND THE COMMON LAW PRIORITIES
AND SYSTEM OF DISTRIBUTION WHICH THE JUDGMENT BELOW ENDEAVORED TO
EFFECTUATE AND PRESERVE INTACT, MUST ALIKE YIELD TO THE SUPERIOR FORCE
SAID TO HAVE BEEN IMPARTED TO THE SOVIET DECREES BY THE RECOGNITION AND
ASSIGNMENT.  NOTHING IN THE LITVINOV ASSIGNMENT OR IN THE NEGOTIATIONS
FOR RECOGNITION SUGGESTS AN INTENTION TO IMPOSE UPON THE STATES
DISCRIMINATIONS BETWEEN NEW YORK AND OTHER CREDITORS WHICH WOULD
SUSTAIN THE FORMER'S LIENS WHILE OBLITERATING THOSE OF THE LATTER.  IF
THE LITVINOV ASSIGNMENT OVERRIDES STATE POLICIES WHICH PROTECT FOREIGN
CREDITORS, IT CAN HARDLY BE THOUGHT TO DO LESS TO DOMESTIC CREDITORS,
WHETHER OF NEW YORK OR A SISTER STATE. 

I ASSUME FOR PRESENT PURPOSES THAT THESE SWEEPING ALTERATIONS OF THE
RIGHTS OF STATES AND OF PERSONS COULD BE ACHIEVED BY TREATY OR EVEN
EXECUTIVE AGREEMENT, ALTHOUGH WE ARE REFERRED TO NO AUTHORITY WHICH
WOULD SUSTAIN SUCH AN EXERCISE OF POWER AS IS SAID TO HAVE BEEN EXERTED
HERE BY MERE ASSIGNMENT UNRATIFIED BY THE SENATE.  IT IS TRUE THAT, IN
ACCORDING RECOGNITION AND IN ESTABLISHING FRIENDLY RELATIONS WITH A
FOREIGN COUNTRY, THIS GOVERNMENT SPEAKS FOR ALL THE FORTY-EIGHT
STATES.  BUT IT WAS NEVER TRUE THAT RECOGNITION ALTERS THE SUBSTANTIVE
LAW OF ANY STATE OR PRESCRIBES UNIFORM STATE LAW FOR THE NATIONALS OF
THE RECOGNIZED COUNTRY.  ON THE CONTRARY, IT DOES NOT EVEN SECURE FOR
THEM EQUALITY OF TREATMENT IN THE SEVERAL STATES, OR EQUAL TREATMENT
WITH CITIZENS IN ANY STATE, SAVE AS THE CONSTITUTION DEMANDS IT.
PATSONE V. PENNSYLVANIA, 232 U.S. 138; TERRACE V. THOMPSON, 263 U.S.
197; CLARKE V. DECKEBACH, 274 U.S. 392 AND CASES CITED.  THOSE ARE ENDS
WHICH CAN BE ACHIEVED ONLY BY THE ASSUMPTION OF SOME FORM OF OBLIGATION
EXPRESSED OR FAIRLY TO BE INFERRED FROM ITS WORDS. 

RECOGNITION, LIKE TREATY MAKING, IS A POLITICAL ACT, AND BOTH MAY BE
UPON TERMS AND CONDITIONS.  BUT THAT FACT NO MORE FORECLOSES THIS
COURT, WHERE IT IS CALLED UPON TO ADJUDICATE PRIVATE RIGHTS, FROM
INQUIRY AS TO WHAT THOSE TERMS AND CONDITIONS ARE THAN IT PRECLUDES, IN
LIKE CIRCUMSTANCES, A COURT'S ASCERTAINING THE TRUE SCOPE AND MEANING
OF A TREATY.  OF COURSE, THE NATIONAL POWER MAY BY APPROPRIATE
CONSTITUTIONAL MEANS OVERRIDE THE POWER OF STATES AND THE RIGHTS OF
INDIVIDUALS.  BUT, WITHOUT COLLISION BETWEEN THEM, THERE IS NO SUCH
LOSS OF POWER OR IMPAIRMENT OF RIGHTS, AND IT CANNOT BE KNOWN WHETHER
STATE LAW AND PRIVATE RIGHTS COLLIDE WITH POLITICAL ACTS EXPRESSED IN
TREATIES OR EXECUTIVE AGREEMENTS UNTIL THEIR RESPECTIVE BOUNDARIES ARE
DEFINED. 

IT WOULD SEEM, THEREFORE, THAT IN DECIDING THIS CASE SOME INQUIRY
SHOULD HAVE BEEN MADE TO ASCERTAIN WHAT PUBLIC POLICY OR BINDING RULE
OF CONDUCT WITH RESPECT TO STATE POWER AND INDIVIDUAL RIGHTS HAS BEEN
PROCLAIMED BY THE RECOGNITION OF THE SOVIET GOVERNMENT AND THE
ASSIGNMENT OF ITS CLAIMS TO THE UNITED STATES.  THE MERE ACT OF
RECOGNITION AND THE BARE TRANSFER OF THE CLAIMS OF THE SOVIET
GOVERNMENT TO THE UNITED STATES CAN, OF THEMSELVES, HARDLY BE TAKEN TO
HAVE ANY SUCH EFFECT, AND THEY CAN BE REGARDED AS INTENDED TO DO SO
ONLY IF THAT PURPOSE IS MADE EVIDENT BY THEIR TERMS, READ IN THE LIGHT
OF DIPLOMATIC EXCHANGES BETWEEN THE TWO COUNTRIES AND OF THE
SURROUNDING CIRCUMSTANCES.  EVEN WHEN COURTS DEAL WITH THE LANGUAGE OF
DIPLOMACY, SOME FOUNDATION MUST BE LAID FOR INFERRING AN OBLIGATION
WHERE PREVIOUSLY THERE WAS NONE, AND SOME EXPRESSION MUST BE FOUND IN
THE CONDUCT OF FOREIGN RELATIONS WHICH FAIRLY INDICATES AN INTENTION TO
ASSUME IT. OTHERWISE, COURTS, RATHER THAN THE EXECUTIVE, MAY SHAPE AND
DEFINE FOREIGN POLICY WHICH THE EXECUTIVE HAS NOT ADOPTED. 

WE ARE NOT POINTED TO ANYTHING ON THE FACE OF THE DOCUMENTS OR IN THE
DIPLOMATIC CORRESPONDENCE WHICH EVEN SUGGESTS THAT THE UNITED STATES
WAS TO BE PLACED IN A BETTER POSITION, WITH RESPECT TO THE CLAIM WHICH
IT NOW ASSERTS, THAN WAS THE SOVIET GOVERNMENT AND NATIONALS.  NOR IS
THERE ANY INTIMATION IN THEM THAT RECOGNITION WAS TO GIVE TO PRIOR
PUBLIC ACTS OF THE SOVIET GOVERNMENT ANY GREATER EXTRATERRITORIAL
EFFECT THAN ATTACHES TO SUCH ACTS OCCURRING AFTER RECOGNITION - ACTS
WHICH, BY THE COMMON UNDERSTANDING OF ENGLISH AND AMERICAN COURTS, ARE
ORDINARILY DEEMED TO BE WITHOUT EXTRATERRITORIAL FORCE, AND WHICH, IN
ANY EVENT, HAVE NEVER BEFORE BEEN CONSIDERED TO RESTRICT THE POWER OF
THE STATES TO APPLY THEIR OWN RULES OF LAW TO FOREIGN-OWNED PROPERTY
WITHIN THEIR TERRITORY.  AS WE DECIDED IN GUARANTY TRUST CO. V. UNITED
STATES, SUPRA, 304 U.S. AT 143, AND AS THE OPINION OF THE COURT NOW
APPEARS TO CONCEDE, THERE IS NOTHING IN ANY OF THE RELEVANT DOCUMENTS
"TO SUGGEST THAT THE UNITED STATES WAS TO ACQUIRE OR EXERT ANY GREATER
RIGHTS THAN ITS TRANSFEROR OR THAT THE PRESIDENT BY MERE EXECUTIVE
ACTION PURPORTED OR INTENDED TO ALTER OR DIMINISH THE RIGHTS OF THE
(NEW YORK) DEBTOR WITH RESPECT TO ANY ASSIGNED CLAIMS, OR THAT THE
UNITED STATES, AS ASSIGNEE, IS TO DO MORE THAN THE SOVIET GOVERNMENT
COULD HAVE DONE AFTER DIPLOMATIC RECOGNITION - THAT IS, COLLECT THE
CLAIMS IN CONFORMITY TO LOCAL LAW." 

RECOGNITION OPENS OUR COURTS TO THE RECOGNIZED GOVERNMENT AND ITS
NATIONALS, SEE GUARANTY TRUST CO. V. UNITED STATES, SUPRA, 140.  IT
ACCEPTS THE ACTS OF THAT GOVERNMENT WITHIN ITS OWN TERRITORY AS THE
ACTS OF THE SOVEREIGN, INCLUDING ITS ACTS AS A DE FACTO GOVERNMENT
BEFORE RECOGNITION, SEE UNDERHILL V. HERNANDEZ, SUPRA, 168 U.S. 250;
OETJEN V. CENTRAL LEATHER CO., SUPRA, 246 U.S. 297; RICAUD V. AMERICAN
METAL CO., SUPRA, 246 U.S. 304.  BUT, UNTIL NOW, RECOGNITION OF A
FOREIGN GOVERNMENT BY THIS GOVERNMENT HAS NEVER BEEN THOUGHT TO SERVE
AS A FULL FAITH AND CREDIT CLAUSE COMPELLING OBEDIENCE HERE TO THE LAWS
AND PUBLIC ACTS OF THE RECOGNIZED GOVERNMENT WITH RESPECT TO PROPERTY
AND TRANSACTIONS IN THIS COUNTRY.  ONE COULD AS WELL ARGUE THAT BY THE
SOVIET GOVERNMENT'S RECOGNITION OF OUR OWN GOVERNMENT, WHICH
ACCOMPANIED THE TRANSACTIONS NOW UNDER CONSIDERATION, IT HAD UNDERTAKEN
TO APPLY IN RUSSIA THE NEW YORK LAW APPLICABLE TO RUSSIAN PROPERTY IN
NEW YORK.  CF. INGENOHL V. OLSEN & CO., SUPRA, 273 U.S. 541; PACIFIC
INS. CO. V. INDUSTRIAL COMM'N, 306 U.S. 493, 501-02. 

IN GUARANTY TRUST CO. V. UNITED STATES, SUPRA, THIS COURT UNANIMOUSLY
REJECTED THE CONTENTION THAT THE RECOGNITION OF THE SOVIET GOVERNMENT
OPERATED TO CURTAIL OR IMPAIR RIGHTS DERIVED FROM THE APPLICATION OF
STATE LAWS AND POLICY WITHIN THE STATE'S OWN TERRITORY.  IT WAS ARGUED
BY THE GOVERNMENT THAT RECOGNITION OPERATED RETROACTIVELY, FOR THE
PERIOD OF THE DE FACTO GOVERNMENT, TO SET ASIDE RIGHTS ACQUIRED IN THE
UNITED STATES IN CONSEQUENCE OF THIS GOVERNMENT'S PRIOR RECOGNITION OF
THE RUSSIAN PROVISIONAL GOVERNMENT.  THIS ARGUMENT, WE SAID, P. 140,
"IGNORES THE DISTINCTION BETWEEN THE EFFECT OF OUR RECOGNITION OF A
FOREIGN GOVERNMENT WITH RESPECT TO ITS ACTS WITHIN ITS OWN TERRITORY
PRIOR TO RECOGNITION, AND THE EFFECT UPON PREVIOUS TRANSACTIONS
CONSUMMATED HERE BETWEEN ITS PREDECESSOR AND OUR OWN NATIONALS.  THE
ONE OPERATES ONLY TO VALIDATE TO A LIMITED EXTENT ACTS OF A DE FACTO
GOVERNMENT WHICH BY VIRTUE OF THE RECOGNITION, HAS BECOME A GOVERNMENT
DE JURE.  BUT IT DOES NOT FOLLOW THAT RECOGNITION RENDERS OF NO EFFECT
TRANSACTIONS HERE WITH A PRIOR RECOGNIZED GOVERNMENT IN CONFORMITY TO
THE DECLARED POLICY OF OUR OWN GOVERNMENT."  EVEN THOUGH THE TWO
GOVERNMENTS MIGHT HAVE STIPULATED FOR ALTERATION BY THIS GOVERNMENT OF
ITS MUNICIPAL LAW, AND THE CONSEQUENT SURRENDER OF THE RIGHTS OF
INDIVIDUALS, THE SUBSTANCE OF THE COURT'S DECISION WAS THAT SUCH AN
ABDICATION OF DOMESTIC LAW AND POLICY IS NOT A NECESSARY OR CUSTOMARY
INCIDENT OF RECOGNITION OR FAIRLY TO BE INFERRED FROM IT.  NO MORE CAN
RECOGNITION BE SAID TO IMPLY A DEPRIVATION OF THE CONSTITUTIONAL RIGHTS
OF STATES OF THE UNION, AND OF INDIVIDUALS ARISING OUT OF THEIR LAWS
AND POLICY, WHICH ARE BINDING ON THE FEDERAL GOVERNMENT EXCEPT AS THE
ACT OF RECOGNITION IS ACCOMPANIED BY SOME AFFIRMATIVE EXERCISE OF
FEDERAL POWER WHICH PURPORTS TO SET THEM ASIDE. 

NOR CAN I FIND IN THE SURROUNDING CIRCUMSTANCES OR IN THE HISTORY OF
THE DIPLOMATIC RELATIONS OF THE TWO COUNTRIES ANY BASIS FOR SAYING THAT
THERE WAS ANY POLICY OF EITHER TO GIVE A DIFFERENT OR LARGER EFFECT TO
RECOGNITION AND THE ASSIGNMENT THAN WOULD ORDINARILY ATTACH TO THEM. 
IT IS SIGNIFICANT THAT THE ACCOUNT OF THE NEGOTIATIONS PUBLISHED BY THE
STATE DEPARTMENT (ESTABLISHMENT OF DIPLOMATIC RELATIONS WITH THE UNION
OF SOVIET SOCIALIST REPUBLICS, EASTERN EUROPEAN SERIES NO. 1), AND THE
REPORT OF SUBSEQUENT NEGOTIATIONS FOR ADJUSTMENT OF THE CLAIMS OF THE
TWO COUNTRIES SUBMITTED TO CONGRESS BY THE SECRETARY OF STATE (H. REP.
NO. 865, 76TH CONG., 1ST SESS.) GIVE NO INTIMATION OF SUCH A POLICY. 
EVEN THE DIPLOMATIC CORRESPONDENCE BETWEEN THE TWO COUNTRIES, OF
JANUARY 7, 1937, TO WHICH THE OPINION OF THE COURT REFERS, AND WHICH
OCCURRED LONG AFTER THE UNITED STATES HAD ENTERED THE MOSCOW FIRE
INSURANCE COMPANY LITIGATION, MERELY REPEATED THE LANGUAGE OF THE
ASSIGNMENT WITHOUT SUGGESTING THAT ITS PURPOSE HAD BEEN TO OVERRIDE
APPLICABLE STATE LAW.    THAT THE ASSIGNMENT AFTER RECOGNITION HAD WIDE
SCOPE FOR APPLICATION WITHOUT READING INTO IT ANY ATTEMPT TO SET ASIDE
OUR LOCAL LAWS AND RIGHTS ACCRUING UNDER THEM IS EVIDENT.  IT WAS NOT
LIMITED IN ITS APPLICATION TO PROPERTY ALLEGED TO BE CONFISCATED UNDER
THE SOVIET DECREES.  INCLUDED IN THE ASSIGNMENT, BY ITS TERMS, WERE ALL
"AMOUNTS ADMITTED TO BE DUE OR THAT MAY BE FOUND TO BE DUE IT (THE
SOVIET GOVERNMENT), AS THE SUCCESSOR OF PRIOR GOVERNMENTS OF RUSSIA, OR
OTHERWISE, FROM AMERICAN NATIONALS."  IT INCLUDED CLAIMS OF THE PRIOR
GOVERNMENTS OF RUSSIA, NOT ARISING OUT OF CONFISCATORY DECREES, AND
ALSO CLAIMS LIKE THAT OF THE RUSSIAN VOLUNTEER FLEET, GROWING OUT OF
OUR OWN EXPROPRIATION DURING THE WAR OF THE PROPERTY OF RUSSIAN
NATIONALS.  THE ASSIGNMENT WAS FAR FROM AN IDLE CEREMONY IF TREATED AS
TRANSFERRING ONLY THE RIGHTS WHICH IT PURPORTS TO ASSIGN.  LARGE SUMS
OF MONEY HAVE ALREADY BEEN COLLECTED UNDER IT, AND OTHER AMOUNTS ARE IN
PROCESS OF COLLECTION, WITHOUT OVERTURNING THE LAW OF THE STATES WHERE
THE CLAIMS HAVE BEEN ASSERTED.  FN1 

AT THE TIME OF THE ASSIGNMENT, IT WAS NOT KNOWN WHAT POSITION THE
COURTS OF THIS COUNTRY WOULD TAKE WITH RESPECT TO PROPERTY HERE,
CLAIMED TO HAVE BEEN CONFISCATED BY THE SOVIET DECREES.  BUT IT MUST
HAVE BEEN KNOWN TO THE TWO GOVERNMENTS THAT THE ENGLISH COURTS
NOTWITHSTANDING BRITISH RECOGNITION OF THE SOVIET GOVERNMENT, HAD
REFUSED TO APPLY THE SOVIET DECREES AS AFFECTING PROPERTY LOCATED IN
ENGLAND.  SEDGWICK COLLINS & CO. V. ROSSIA INSURANCE CO., SUPRA; THE
JUPITER (NO. 3), SUPRA; IN RE RUSSIAN BANK FOR FOREIGN TRADE, SUPRA.
IT MUST ALSO HAVE BEEN KNOWN THAT THE SIMILAR VIEWS EXPRESSED BY THE
NEW YORK COURTS BEFORE RECOGNITION WITH RESPECT TO PROPERTY SITUATED IN
NEW YORK RAISED AT LEAST A STRONG POSSIBILITY THAT MERE RECOGNITION
WOULD NOT ALTER THE RESULT IN THAT STATE.  SOKOLOFF V. NATIONAL CITY
BANK, 239 N.Y. 158, 167-69, 145 N.E. 917; JAMES & CO. V. SECOND RUSSIAN
INS. CO., 239 N.Y. 248, 257, 146 N.E. 369; JOINT STOCK CO. V. NATIONAL
CITY BANK, 240 N.Y. 368, 148 N.E. 552; PETROGRADSKY M.K. BANK V.
NATIONAL CITY BANK, 253 N.Y. 23, 29, 170 N.E. 479.  THE ASSIGNMENT
PLAINLY CONTEMPLATED THAT THIS, LIKE EVERY OTHER QUESTION AFFECTING
LIABILITY, WAS TO BE LITIGATED IN THE COURTS OF THIS COUNTRY, SINCE THE
ASSIGNMENT ONLY PURPORTED TO ASSIGN AMOUNTS ADMITTED TO BE DUE OR "THAT
MAY BE FOUND TO BE DUE."  IT WAS ONLY IN THE COURTS WHERE THE DEBTOR OR
THE PROPERTY WAS LOCATED THAT THE AMOUNTS ASSIGNED WOULD NORMALLY BE
"FOUND TO BE DUE."  CF. UNITED STATES V. BANK OF NEW YORK CO., SUPRA,
296 U.S. 463. 

BY TRANSFERRING CLAIMS OF EVERY KIND, AGAINST AMERICAN NATIONALS, TO
THE UNITED STATES AND LEAVING TO IT THEIR COLLECTION, THE PARTIES
NECESSARILY REMITTED TO THE COURTS OF THIS COUNTRY THE DETERMINATION OF
THE AMOUNTS DUE UPON THIS GOVERNMENT'S UNDERTAKING TO REPORT THE
AMOUNTS COLLECTED AS "PREPARATORY TO A FINAL SETTLEMENT OF THE CLAIMS
AND COUNTERCLAIMS" ASSERTED BY THE TWO GOVERNMENTS.  THEY THUS ENDED
THE NECESSITY OF DIPLOMATIC DISCUSSION OF THE VALIDITY OF THE CLAIMS,
AND SO REMOVED A PROBABLE SOURCE OF FRICTION BETWEEN THE TWO
COUNTRIES.  IN ALL THIS, I CAN FIND NO HINT THAT THE RULES OF DECISION
IN AMERICAN COURTS WERE NOT TO BE THOSE AFFORDED BY THE LAW CUSTOMARILY
APPLIED IN THOSE COURTS.  BUT IF IT WAS THE PURPOSE OF EITHER
GOVERNMENT TO OVERRIDE LOCAL LAW AND POLICY OF THE STATES AND TO
PRESCRIBE A DIFFERENT RULE OF DECISION FROM THAT HITHERTO RECOGNIZED BY
ANY COURT, IT WOULD SEEM TO HAVE BEEN BOTH NATURAL AND NEEDFUL TO HAVE
EXPRESSED IT IN SOME FORM OF UNDERTAKING INDICATING SUCH AN INTENTION. 
THE ONLY OBLIGATION TO BE FOUND IN THE ASSIGNMENT AND ITS
ACKNOWLEDGMENT BY THE PRESIDENT IS THAT OF THE UNITED STATES, ALREADY
MENTIONED, TO REPORT THE AMOUNTS COLLECTED.  THIS CAN HARDLY BE SAID TO
BE AN UNDERTAKING TO STRIKE DOWN VALID DEFENSES TO THE ASSIGNED
CLAIMS.  TREATIES, TO SAY NOTHING OF EXECUTIVE AGREEMENTS AND
ASSIGNMENTS WHICH ARE MERE TRANSFERS OF RIGHTS, HAVE HITHERTO BEEN
CONSTRUED NOT TO OVERRIDE STATE LAW OR POLICY UNLESS IT IS REASONABLY
EVIDENT FROM THEIR LANGUAGE THAT SUCH WAS THE INTENTION.  GUARANTY
TRUST CO. V. UNITED STATES, SUPRA, 304 U.S. AT 143; TODOK V. UNION
STATE BANK, 281 U.S. 449, 454; ROCCA V. THOMPSON, 223 U.S. 317, 329-34;
DISCONTO GESELLSCHAFT V. UMBREIT, SUPRA, 208 U.S. AT 582; PEARL
ASSURANCE CO. V. HARRINGTON, 38 F.SUPP.  411, 413-14; AFFIRMED, 313
U.S. 549; PATSONE V. PENNSYLVANIA, 232 U.S. 138, 145-46; CF. LIVERPOOL
INS. CO. V. MASSACHUSETTS, 10 WALL.  566, 568, 576-77.  THE PRACTICAL
CONSEQUENCES OF THE PRESENT DECISION WOULD SEEM TO BE, IN EVERY CASE OF
RECOGNITION OF A FOREIGN GOVERNMENT, TO FOIST UPON THE EXECUTIVE THE
RESPONSIBILITY FOR SUBORDINATING DOMESTIC TO FOREIGN LAW IN CONFLICTS
CASES, WHETHER INTENDED OR NOT, UNLESS SUCH A PURPOSE IS AFFIRMATIVELY
DISCLAIMED. 

UNDER OUR DUAL SYSTEM OF GOVERNMENT, THERE ARE MANY CIRCUMSTANCES IN
WHICH THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE NATIONAL GOVERNMENT
MAY, BY AFFIRMATIVE ACTION EXPRESSING ITS POLICY, ENLARGE THE EXERCISE
OF FEDERAL AUTHORITY AND THUS DIMINISH THE POWER WHICH OTHERWISE MIGHT
BE EXERCISED BY THE STATES.  IT IS INDISPENSABLE TO THE ORDERLY
ADMINISTRATION OF THE SYSTEM THAT SUCH ALTERATION OF POWERS AND THE
CONSEQUENT IMPAIRMENT OF STATE AND PRIVATE RIGHTS SHOULD NOT TURN ON
CONCEPTIONS OF POLICY WHICH, IF EVER ENTERTAINED BY THE ONLY BRANCH OF
THE GOVERNMENT AUTHORIZED TO ADOPT IT, HAS BEEN LEFT UNEXPRESSED.  IT
IS NOT FOR THIS COURT TO ADOPT POLICY, THE MAKING OF WHICH HAS BEEN BY
THE CONSTITUTION COMMITTED TO OTHER BRANCHES OF THE GOVERNMENT.  IT IS
NOT ITS FUNCTION TO SUPPLY A POLICY WHERE NONE HAS BEEN DECLARED OR
DEFINED AND NONE CAN BE INFERRED. 

FN1  BY JUNE 30, 1938, THE SUMS COLLECTED BY VIRTUE OF THE LITVINOV
ASSIGNMENT AMOUNTED TO $1,706,443.  REPORT OF THE ATTORNEY GENERAL FOR
1938, P. 122.  OTHER CLAIMS ARE APPARENTLY STILL IN LITIGATION.  SEE
THE REPORT FOR 1939, P. 99; ALSO H. REP. NO. 865, 76TH CONG., 1ST
SESS., P. 2. 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :












YOUNG V. UNITED STATES, 315 U.S. 257 


NO. 86.  ARGUED DECEMBER 17, 1941.  - DECIDED FEBRUARY 2, 1942.  - 119
F.2D 399, REVERSED. 


1.  ON REVIEW OF A CONVICTION IN A CRIMINAL CASE, THE GOVERNMENT'S
CONFESSION OF ERROR, THOUGH ENTITLED TO GREAT WEIGHT, DOES NOT RELIEVE
THE COURT OF ITS DUTY TO EXAMINE INDEPENDENTLY THE ERRORS CONFESSED. 
P. 258. 

2.  THE SECOND PROVISO OF SEC. 6 OF THE HARRISON ANTI-NARCOTIC ACT,
AS AMENDED, WHICH REQUIRES "ANY MANUFACTURER, PRODUCER, COMPOUNDER, OR
VENDOR (INCLUDING DISPENSING PHYSICIANS)" TO KEEP A RECORD OF ALL
SALES, EXCHANGES, OR GIFTS OF CERTAIN PREPARATIONS AND REMEDIES, DOES
NOT APPLY TO PHYSICIANS ADMINISTERING TO PATIENTS WHOM THEY PERSONALLY
ATTEND.  P. 259. 

YOUNG V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 314 U.S. 595, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR VIOLATION OF THE HARRISON ANTI-NARCOTIC ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A PRACTICING PHYSICIAN, WAS CONVICTED ON EIGHT COUNTS OF
AN INDICTMENT CHARGING VIOLATION OF SEC. 6 OF THE HARRISON ANTI
NARCOTIC ACT, AS AMENDED.  FN1  THAT SECTION, SO FAR AS HERE MATERIAL,
PROVIDES: 

"THAT THE PROVISIONS OF THIS ACT SHALL NOT BE CONSTRUED TO APPLY TO
THE MANUFACTURE, SALE, DISTRIBUTION, GIVING AWAY, DISPENSING, OR
POSSESSION OF PREPARATIONS AND REMEDIES WHICH DO NOT CONTAIN MORE THAN
TWO GRAINS OF OPIUM  ...  IN ONE FLUID OUNCE  ...  :  PROVIDED, THAT
SUCH REMEDIES AND PREPARATIONS ARE MANUFACTURED, SOLD, DISTRIBUTED,
GIVEN AWAY, DISPENSED, OR POSSESSED AS MEDICINES AND NOT FOR THE
PURPOSE OF EVADING THE INTENTIONS AND PROVISIONS OF THIS ACT: PROVIDED
FURTHER, THAT ANY MANUFACTURER, PRODUCER, COMPOUNDER, OR VENDOR
(INCLUDING DISPENSING PHYSICIANS) OF THE PREPARATIONS AND REMEDIES
MENTIONED IN THIS SECTION LAWFULLY ENTITLED TO MANUFACTURE, PRODUCE,
COMPOUND, OR VEND SUCH PREPARATIONS AND REMEDIES, SHALL KEEP A RECORD
OF ALL SALES, EXCHANGES, OR GIFTS OF SUCH PREPARATIONS AND REMEDIES
...  " 

THE EVIDENCE IS UNDISPUTED THAT PETITIONER GAVE THE PREPARATIONS IN
THE QUANTITIES CHARGED IN THE INDICTMENT TO PATIENTS WHOM HE PERSONALLY
ATTENDED.  HE KEPT NO RECORDS.  HIS DEFENSE, THAT THE SECOND PROVISO OF
SEC. 6 IS NOT AN INDEPENDENT AND AFFIRMATIVE REQUIREMENT BUT MERELY A
CONDITION PRECEDENT TO THE EXEMPTION CREATED BY THAT SECTION, WAS
REJECTED BY THE COURT BELOW, WHICH TOOK THE POSITION THAT THE SECOND
PROVISO IS AN UNCONDITIONAL REQUIREMENT THAT ALL VENDORS OF EXEMPT
PREPARATIONS KEEP RECORDS.  FN2 

THE GOVERNMENT CONFESSED ERROR AND WE BROUGHT THE CASE HERE.  314
U.S. 595. 

THE PUBLIC TRUST REPOSED IN THE LAW ENFORCEMENT OFFICERS OF THE
GOVERNMENT REQUIRES THAT THEY BE QUICK TO CONFESS ERROR WHEN, IN THEIR
OPINION, A MISCARRIAGE OF JUSTICE MAY RESULT FROM THEIR REMAINING
SILENT.  BUT SUCH A CONFESSION DOES NOT RELIEVE THIS COURT OF THE
PERFORMANCE OF THE JUDICIAL FUNCTION.  THE CONSIDERED JUDGMENT OF THE
LAW ENFORCEMENT OFFICERS THAT REVERSIBLE ERROR HAS BEEN COMMITTED IS
ENTITLED TO GREAT WEIGHT, BUT OUR JUDICIAL OBLIGATIONS COMPEL US TO
EXAMINE INDEPENDENTLY THE ERRORS CONFESSED.  SEE PARLTON V. UNITED
STATES, 75 F.2D 772.  THE PUBLIC INTEREST THAT A RESULT BE REACHED
WHICH PROMOTES A WELL-ORDERED SOCIETY IS FOREMOST IN EVERY CRIMINAL
PROCEEDING.  THAT INTEREST IS ENTRUSTED TO OUR CONSIDERATION AND
PROTECTION AS WELL AS TO THAT OF THE ENFORCING OFFICERS.  FURTHERMORE,
OUR JUDGMENTS ARE PRECEDENTS, AND THE PROPER ADMINISTRATION OF THE
CRIMINAL LAW CANNOT BE LEFT MERELY TO THE STIPULATION OF PARTIES.  CF.
REX V. WILKES, 4 BURR.  2527, 2551, 98 ENG. REP. 327; STATE V. GREEN,
167 WASH. 266, 9 P.2D 62. 

THE GOVERNMENT'S CONFESSION OF ERROR WAS ORIGINALLY TWO-FOLD:  FIRST,
THAT WHILE THE SECOND PROVISO OF SEC. 6 WAS SUBJECT TO TWO POSSIBLE
CONSTRUCTIONS, THE ADMINISTRATIVE CONSTRUCTION HAD BEEN THAT IT WAS NOT
AN INDEPENDENT PENAL PROVISION, AND THEREFORE THE AMBIGUITY SHOULD BE
RESOLVED IN FAVOR OF PETITIONER; AND, SECONDLY, THAT THE SECOND
PROVISO, EVEN IF IT BE REGARDED AS AN INDEPENDENT PENAL PROVISION, DOES
NOT APPLY TO A PHYSICIAN WHO ADMINISTERS EXEMPT PREPARATIONS SOLELY TO
PATIENTS WHOM HE PERSONALLY ATTENDS.  UPON RECONSIDERATION THE
GOVERNMENT HAS WITHDRAWN ITS FIRST GROUND OF CONFESSION OF ERROR.  WE
PUT TO ONE SIDE THAT QUESTION, SINCE WE ARE OF OPINION THAT THERE MUST
BE A REVERSAL ON THE SECOND GROUND. 

ASSUMING, WITHOUT DECIDING, THAT THE SECOND PROVISO OF SEC. 6 IS AN
INDEPENDENT PENAL PROVISION, IT REQUIRES THAT RECORDS BE KEPT ONLY BY
"ANY MANUFACTURER, PRODUCER, COMPOUNDER, OR VENDOR (INCLUDING
DISPENSING PHYSICIANS)."  WE THINK THAT CONGRESS, BY THE USE OF THE
WORDS "DISPENSING PHYSICIANS," MEANT TO EXCLUDE PHYSICIANS
ADMINISTERING TO PATIENTS WHOM THEY PERSONALLY ATTEND. 

THAT NOT ALL PHYSICIANS ARE REQUIRED TO KEEP RECORDS IS MANIFEST FROM
THE USE OF THE QUALIFYING ADJECTIVE "DISPENSING."  AND, THE PHYSICIAN
MUST BE ONE WHO MANUFACTURES, PRODUCES, COMPOUNDS, OR VENDS, OR
POSSIBLY ONLY ONE WHO VENDS IF THE PARENTHETICAL PHRASE APPLIES ONLY TO
"VENDOR," THE DRUGS.  THESE ARE NOT APPROPRIATE WORDS TO DESCRIBE THE
FUNCTION OF A PHYSICIAN WHO ADMINISTERS EXEMPT PREPARATIONS TO PATIENTS
WHOM HE PERSONALLY ATTENDS. 

THIS CONSTRUCTION IS BORNE OUT BY A CONSIDERATION OF THE ACT AS A
WHOLE.  THE WORD "ADMINISTER" MORE APPROPRIATELY DESCRIBES THE
ACTIVITIES OF A DOCTOR IN PERSONAL ATTENDANCE THAN DOES THE WORD
"DISPENSE."  ADMITTEDLY, THE WORDS "DISPENSE" AND "DISPENSING" ARE USED
IN SEVERAL SENSES IN THE ACT, BUT CONGRESS EVIDENTLY WAS AWARE OF THE
DIFFERENTIATION BETWEEN "ADMINISTER" AND "DISPENSE," FOR, WHEN IT
WISHED TO INCLUDE ALL POSSIBLE FUNCTIONS OF PHYSICIANS WITH RESPECT TO
DRUG DISTRIBUTION, IT USED BOTH TERMS IN CONJUNCTION.  SECTION 1 OF THE
ACT IN DEFINING THOSE REQUIRED TO PAY A SPECIAL TAX SPEAKS OF
"PHYSICIANS  ... LAWFULLY ENTITLED TO DISTRIBUTE, DISPENSE, GIVE AWAY,
OR ADMINISTER," AND MAKES IT UNLAWFUL FOR ANY PERSON "TO PURCHASE,
SELL, DISPENSE OR DISTRIBUTE" ANY DRUGS OTHERWISE THAN IN AND FROM THE
ORIGINAL STAMPED PACKAGE, EXCEPTING THE "DISPENSING, OR ADMINISTRATION,
OR GIVING AWAY OF ANY OF THE AFORESAID DRUGS TO A PATIENT" BY A
PRACTITIONER WHERE "DISPENSED OR ADMINISTERED TO THE PATIENT FOR
LEGITIMATE MEDICAL PURPOSES." 

DELIVERIES OF DRUGS BY PERSONS WHO HAVE NOT REGISTERED AND PAID A
SPECIAL TAX DELIVERIES BY "ANY PERSON WHO SHALL DELIVER ANY SUCH DRUG
WHICH HAS BEEN PRESCRIBED OR DISPENSED BY A PHYSICIAN."  THE OMISSION
OF THE WORD "ADMINISTER" INDICATES THAT CONGRESS RECOGNIZED THAT
SHIPMENTS AND DELIVERIES WOULD ORDINARILY NOT BE INVOLVED WHERE THE
PHYSICIAN WAS ADMINISTERING WHILE IN PERSONAL ATTENDANCE. 

IN SEC. 2(A), DEALING WITH TRUE NARCOTICS, CONGRESS UNEQUIVOCALLY
EXEMPTED PHYSICIANS FROM RECORD KEEPING WHERE IN PERSONAL ATTENDANCE
UPON PATIENTS.  IT IS DIFFICULT TO PERCEIVE WHY A DIFFERENT REQUIREMENT
SHOULD OBTAIN WHEN A PHYSICIAN, UNDER SIMILAR CIRCUMSTANCES,
ADMINISTERS PREPARATIONS CONTAINING ONLY A LIMITED AMOUNT OF NARCOTICS,
SUCH AS THE PAREGORIC, COUGH SYRUP, ETC., INVOLVED IN THIS CASE.  THE
WORD "DISPENSE" IS EVIDENTLY USED IN SEC. 2(A) IN A SENSE BROAD ENOUGH
TO INCLUDE PERSONAL ADMINISTRATION OF DRUGS BY AN ATTENDING DOCTOR, BUT
THE EXPRESS EXCEPTION OF THE PERSONAL ATTENDANCE CASES REMOVES ANY
AMBIGUITY AS TO THE SCOPE OF "DISPENSE" IN THIS CONTEXT. 

THE CONSTRUCTION OF THE PARENTHETICAL PHRASE "(INCLUDING DISPENSING
PHYSICIANS)" AS ENCOMPASSING ONLY DOCTORS WHO WOULD BE COVERED BY THE
WORD "VENDOR" DOES NOT IMPLY THAT CONGRESS WAS TAUTOLOGIC, BUT RATHER
THAT IT ACTED CAUTIOUSLY TO PRECLUDE ANY CONTENTION THAT PHYSICIANS
SELLING DRUGS WERE NOT "VENDORS" BECAUSE OF THEIR PROFESSIONAL STATUS. 

THE LEGISLATIVE HISTORY OF THE SECOND PROVISO OF SEC. 6 SUPPORTS THE
VIEW THAT THE WORDS "DISPENSING PHYSICIANS" WERE INTENDED TO APPLY ONLY
TO PHYSICIANS ACTING AS DEALERS IN THE SALE OF DRUGS.  THE PHRASE
"VENDOR (INCLUDING DISPENSING PHYSICIAN)" WAS SUBSTITUTED FOR "THE
DEALER WHO KNOWINGLY SELLS" EXEMPT PREPARATIONS.  FN3 

UPON THE EVIDENCE IN THIS CASE, PETITIONER WAS NOT A "DISPENSING
PHYSICIAN" WITHIN THE MEANING OF THE SECOND PROVISO OF SEC. 6.  THE
JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE UNITED STATES
DISTRICT COURT FOR THE TERRITORY OF HAWAII FOR SUCH FURTHER PROCEEDINGS
AS MAY BE REQUIRED IN THE LIGHT OF THIS OPINION.  REVERSED. 

FN1  40 STAT. 1132, 26 U.S.C. SUPP. V, SEC. 2551(A) AND (B). 

FN2  119 F.2D 399. 

FN3  SEE 57 CONG. REC. 771 AND H. REPT. NO. 1037, 65TH CONG., 3D
SESS., PP. 37, 87-88. 

IN OFFERING THE COMMITTEE AMENDMENT WHICH EMBODIED THE RECORDKEEPING
REQUIREMENT, SENATOR MCCUMBER SAID: 

"BEFORE THE COMMITTEE THERE WAS A PROPOSITION MADE COMPELLING
DRUGGISTS WHO COMPOUNDED ANY OF THESE HABIT-FORMING DRUGS ALSO TO KEEP
A LIST OF THE PERSONS TO WHOM THEY FURNISHED THEM, A LIST OF THE GOODS,
AND SO FORTH."  57 CONG. REC. 771. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :











GREAT NORTHERN RY. CO. V. U.S., 315 U.S. 262 


NO. 149.  ARGUED JANUARY 13, 14, 1942.  - DECIDED FEBRUARY 2, 1942.  -
119 F.2D 821, MODIFIED AND AFFIRMED. 


1.  THE RIGHT OF WAY ACT OF MARCH 3, 1875, GRANTING TO RAILROADS THE
RIGHT OF WAY THROUGH PUBLIC LANDS OF THE UNITED STATES, GRANTS AN
EASEMENT ONLY, NOT A FEE, AND CONFERS NO RIGHT TO OIL AND MINERALS
UNDERLYING THE RIGHT OF WAY.  PP. 271, 279. 

2.  THIS CONSTRUCTION OF THE ACT IS SUPPORTED BY ITS LANGUAGE, ITS
LEGISLATIVE HISTORY, ITS EARLY ADMINISTRATIVE INTERPRETATION, AND THE
CONSTRUCTION PLACED UPON IT BY CONGRESS IN SUBSEQUENT ENACTMENTS.  P.
277. 

3.  THE GENERAL RULE OF CONSTRUCTION THAT ANY AMBIGUITY IN A GRANT IS
TO BE RESOLVED IN FAVOR OF THE SOVEREIGN GRANTOR - NOTHING PASSES BUT
WHAT IS CONVEYED IN CLEAR AND EXPLICIT LANGUAGE - IS APPLICABLE IN THE
CONSTRUCTION OF THE ACT.  P. 272. 

4.  THE HISTORY OF THE TIMES IN WHICH A STATUTE WAS ENACTED MAY
PROPERLY BE CONSIDERED IN DETERMINING ITS MEANING.  P. 273. 

5.  RIO GRANDE RY. V. STRINGHAM, 239 U.S. 44, DISCUSSED AND REGARDED
AS NOT CONTROLLING.  P. 279. 

6.  UPON THE RECORD IN THIS CASE, AND IN VIEW OF THE STATE OF THE
PLEADINGS, THE UNITED STATES IS ENTITLED TO JUDGMENT ONLY AS TO THE
LIMITED AREAS IN RESPECT OF WHICH IT IS SHOWN BY STIPULATION TO HAVE
HAD TITLE.  P. 280. 

GREAT NORTHERN RAILWAY CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 314 U.S. 596, TO REVIEW THE AFFIRMANCE OF A DECREE, 32
F.SUPP.  651, ENJOINING THE RAILROAD FROM DRILLING OR REMOVING OIL, GAS
OR MINERALS UNDERLYING ITS RIGHT OF WAY. 

DURING AND PRIOR TO THE PERIOD OF THE GRANTS, THE TERM "RAILROAD
RIGHT OF WAY" HAD ONLY ONE ACCEPTED MEANING IN LEGISLATIVE ENACTMENTS. 
IT WAS NEVER USED AS DESIGNATING AN EASEMENT, BUT RATHER TO DESCRIBE
THE NARROW STRIP OF LAND OWNED BY A RAILROAD IN FEE, AND UPON WHICH THE
TRACKS WERE CONSTRUCTED. 

JUDICIAL DECISIONS SUPPORT THE SAME USAGE.  IN CHICAGO & M.R. CO. V.
PATCHIN, 16 ILL. 198(1854), THE COURT INDICATED THAT THE ESTATE OF THE
RAILROAD WAS AN ABSOLUTE OWNERSHIP IN FEE, AND SIMILAR STATEMENTS WERE
MADE IN PRATHER V. WESTERN UNION TELEGRAPH CO., 89 IND. 501(1883);
YATES V. VAN DE BOGERT, 56 N.Y. 526(1874); BUFFALO PIPE LINE CO. V.
N.Y., L.E. & W.R. CO., 10 ABB.  N.C. 107(1882); BALLARD V. L. & N.R.
CO., 9 KY. 523(1887).  THE ONLY CASES PRIOR TO 1875 WHICH DO NOT
SUPPORT THE FEE SIMPLE VIEW ARE QUINBY V. VERMONT CENTRAL R. CO., 23
VT. 387, AND BLAKE V. RICH, 34 N.H. 282, AND THERE THE COURTS IMPLIED
THAT THEY STOOD ALONE AND THAT OTHER CASES SUPPORTED THE FEE SIMPLE
ESTATE. 

THE GRANTS THEMSELVES INDICATE THAT CONGRESS USED THE TERM "RIGHT OF
WAY" IN THE SENSE OF STRIP OF LAND.  SEE LEAVENWORTH CITY R. GRANT, 14
STAT. 212; GREEN BAY & LAKE PEPIN GRANT, 16 STAT. 588; PORTLAND, DALLES
& SALT LAKE GRANT, 17 STAT. 52; CENTRAL PACIFIC GRANT, 18 STAT. 306;
HOT SPRINGS R. GRANT, 19 STAT. 108; WESTERN R. OF MINNESOTA GRANT, 21
STAT. 69. 

THE FACTS THAT THE EARLIER GRANTS WERE TO THE GRANTEE AND ITS
"SUCCESSORS AND ASSIGNS"; THAT THE GRANT OF RIGHT OF WAY WAS "THROUGH"
THE PUBLIC LANDS AND NOT "OVER" THEM; THAT THERE WERE PROVISIONS TO
EXTINGUISH THE INDIAN TITLE WHERE THE GRANTS PASSED THROUGH INDIAN
LANDS; THAT THE GRANTS RECITE THAT THEY ARE MADE FOR THE "PUBLIC
ADVANTAGE AND WELFARE," AND PROVIDE FOR FREE TRANSPORTATION OF TROOPS
AND MUNITIONS, AND GIVE THE GOVERNMENT THE RIGHT OF "PREFERRED"
TRANSPORTATION, ALL AFFORD ADDITIONAL INDICATIONS THAT CONGRESS HAD NO
INTENTION OF REDUCING THE GRANTED ESTATE TO THE MINIMUM. 

USE OF THE TERM "RIGHT OF WAY" TO DESIGNATE THE STRIP OF LAND ITSELF
IS STILL GENERAL IN STATUTES AND RAILROAD CONVEYANCES, IS COMMON IN
PRIVATE DEEDS, AND IS SUPPORTED BY DICTIONARIES. 

STATUTES REQUIRING FENCING OF THE RIGHT OF WAY STRIP, REMOVING WEEDS
THEREFROM, OR PROVIDING FOR CROSSINGS FOR HIGHWAYS, CANALS, IRRIGATION
DITCHES, ETC., SELDOM, IF EVER, USE THE TERM "STRIP OF LAND OCCUPIED BY
TRACKS," BUT INVARIABLY USE THE TERM "RIGHT OF WAY," ALTHOUGH REFERRING
TO THE LAND ITSELF AND NOT AN EASEMENT.  SEE, FOR EXAMPLE, REVISED
CODES OF MONTANA, 1935, SECS. 6551, 6552, 7110. 

CONGRESS, AS WELL AS STATE LEGISLATURES, HAS USED IN THE SAME STATUTE
"STRIP OF LAND" AND "RIGHT OF WAY" REFERRING TO THE SAME LAND.  E.G.,
18 STAT. 306; STATUTES OF INDIANA, 1863, P. 33, SEC. 5. 

A DEED TO A RAILROAD OF A STRIP OF LAND DESIGNATED AS A RIGHT OF WAY
HAS OFTEN BEEN REGARDED BY THE COURTS AS A GRANT OF THE LAND IN FEE. 
BALLARD V. L. & N.R. CO., 9 KY. 523(1887); STEVENS V. GALVESTON R. CO.,
212 S.W. 639; RADETSKY V. JORGENSEN, 70 COLO. 423; ARKANSAS IMPROVEMENT
CO. V. KANSAS CITY SOUTHERN RY., 189 LA. 921; JOHNSON V. VALDOSTA R.
CO., 169 GA. 559; MIDSTATE OIL CO. V. OCEAN SHORE R. CO., 93 CAL. APP.
704; MARLAND V. GILLESPIE, 168 OKLA. 376. 

TO REGARD THE GRANT AS AN EASEMENT WOULD BENEFIT NO ONE; IF THE
RAILROAD CAN NOT REMOVE MINERALS, NO ONE ELSE CAN.  RIO GRANDE WESTERN
RY. V. STRINGHAM, 239 U.S. 44. 

THE RULE THAT GRATUITOUS PUBLIC GRANTS ARE TO BE STRICTLY CONSTRUED
AGAINST THE GRANTEE AND IN FAVOR OF THE SOVEREIGN, DOES NOT APPLY TO
GRANTS OF THE RIGHT OF WAY.  GREAT NORTHERN RY. V. STEINKE, 261 U.S.
119, 124; NADEAU V. UNION PACIFIC R. CO., 253 U.S. 442, 444. 

THE PURPOSE OF THE GRANT WAS TO GET RAILROADS BUILT, BY PROVIDING
SITES OR LOCATIONS FOR THEIR CONSTRUCTION ACROSS PUBLIC LANDS.  THIS
PURPOSE COULD BE ACCOMPLISHED AT LEAST AS WELL BY GRANT OF A STRIP IN
FEE AS BY AN EASEMENT. 

IF CONGRESS HAD BEEN SEEKING THAT FORM OF GRANT WHICH WOULD GIVE THE
ABSOLUTE MINIMUM ESTATE TO THE RAILROADS AND STILL MAKE IT POSSIBLE FOR
THE ROADS TO BE BUILT, IT MIGHT HAVE SELECTED AN EASEMENT.  BUT FROM
1850 TO 1870, WHILE IT WAS MAKING RIGHT OF WAY GRANTS, IT WAS ALSO
MAKING LAVISH GIFTS OF ADJOINING SECTIONS, INCLUDING COAL AND IRON
LANDS.  NO DISPOSITION WAS SHOWN TO WHITTLE DOWN ANY PART OF THE
GRANT.  THE GENEROUS WIDTH OF 200 FEET, AND 400 FEET IN THE NORTHERN
PACIFIC GRANT, WHEN 50 FEET WOULD HAVE BEEN SUFFICIENT AT MOST POINTS,
PROVES THIS. 

IT WAS NEVER THE PRACTICE OR POLICY OF CONGRESS TO GRANT SURFACE
RIGHTS AND RESERVE UNDERLYING MINERALS.  THE ONLY PURPOSE OF RESERVING
MINERAL LANDS WAS TO MAKE THEM AVAILABLE TO MINERAL CLAIMANTS, BUT
THERE COULD BE NO SUCH OBJECT IN RESERVING MINERALS UNDER THE RIGHT OF
WAY, BECAUSE MINERAL CLAIMANTS COULD NOT ENTER THE RIGHT OF WAY TO
CONDUCT MINING OPERATIONS. 

DEBATES IN THE HOUSE OF REPRESENTATIVES DID NOT REFER TO THE
CHARACTER OF ESTATE GRANTED. 

TWELVE DECISIONS OF THIS COURT AND EVERY DECISION OF A STATE OR LOWER
FEDERAL COURT CONSTRUING THE RIGHT OF WAY GRANTS, EXCEPT THIS DECISION
BELOW, OVER A PERIOD OF MORE THAN 50 YEARS, HAVE HELD THAT THE ESTATE
GRANTED WAS A FEE TITLE, CONDITIONED ONLY UPON CONTINUED RAILROAD
OPERATION.  JOY V. ST. LOUIS, 138 U.S. 1; NEW MEXICO V. UNITED STATES
TRUST CO., 172 U.S. 171; RIO GRANDE WESTERN R. CO. V. STRINGHAM, 239
U.S. 44; NORTHERN PACIFIC RY. V. TOWNSEND, 190 U.S. 267; MISSOURI, K. &
T. RY. CO. V. ROBERTS, 152 U.S. 114; MISSOURI, K. & T. RY. CO. V.
OKLAHOMA, 271 U.S. 303, 308; NOBLE V. OKLAHOMA CITY, 297 U.S. 481, 494;
CLAIRMONT V. UNITED STATES, 225 U.S. 551, 556; BUTTZ V. NORTHERN
PACIFIC RY., 119 U.S. 55, 66; CHOCTAW R. CO. V. MACKEY, 256 U.S. 531,
538; NOBLE V. UNION RIVER LOGGING R., 147 U.S. 165, 176; JAMESTOWN &
N.R. CO. V. JONES, 177 U.S. 125, 130; UNITED STATES V. MICHIGAN, 190
U.S. 379, 398; NORTHERN PACIFIC RY. CO. V. ELY, 197 U.S. 1, 6; STALKER
V. OREGON SHORT LINE, 225 U.S. 142, 146; STATE V. NORTHERN PACIFIC RY.
CO., 88 MONT. 529; DENVER & S.L.R. V. PACIFIC LBR.  CO., 86 COLO. 86;
STEPAN V. NORTHERN PACIFIC RY., 81 MONT. 361; DUGAN V. MONTOYA, 24 N.M.
102; UNION PACIFIC R. V. DAVENPORT, 102 KAN. 513; CRANDALL V. GOSS, 30
IDA.  661; BOWMAN V. MCGOLDRICK LBR.  CO., 38 IDA.  30; NORTHERN
PACIFIC RY. V. MYERS-PARR MILL CO., 54 WASH. 447; WILKINSON V. NORTHERN
PACIFIC RY., 5 MONT. 538. 

THE PROHIBITION AGAINST ALIENATION OF THE RIGHT OF WAY DOES NOT APPLY
TO REMOVAL OF OIL.  GRAND TRUNK R. CO. V. RICHARDSON, 91 U.S. 454, 463;
HARTFORD FIRE INS. CO. V. CHICAGO, M. & ST. P. RY., 175 U.S. 91, 99;
SIOUX CITY V. MISSOURI VALLEY PIPE LINE CO., 46 F.2D 819; NORTHERN
PACIFIC R. CO. V. NORTHERN AMERICAN TELEPHONE CO., 230 F. 347, 349;
HOLLAND CO. V. NORTHERN PACIFIC RY. CO., 214 F. 920.  SEE ALSO,
MISSOURI K. & T. RY. V. OKLAHOMA, 271 U.S. 303; NORTHERN PACIFIC R. CO.
V. MYERS-PARR MILL CO., 54 WASH. 447. 

SUBSEQUENT RULINGS OF THE LAND DEPARTMENT AND ACTS OF CONGRESS
SUPPORTING THE EASEMENT THEORY ARE SELF-SERVING DECLARATIONS, AND ARE
IN CONFLICT WITH SUPREME COURT DECISIONS, WITH THE INTENT OF THE
GRANTS, AND WITH ADMISSIONS BY THE GOVERNMENT IN THIS CASE. 

THE OWNER OF A CONDITIONAL FEE ESTATE IS ENTITLED TO THE UNDERLYING
OIL AND MINERALS. 

A GRANT, EVEN THOUGH NOT IN FEE AND LIMITED TO RAILROAD PURPOSES,
WOULD INCLUDE THE RIGHT TO USE MATERIALS OR FUEL WITHIN THE BOUNDS OF
THE GRANT; AND THE INJUNCTION SHOULD BE DENIED AS TO REMOVAL OF OIL FOR
RAILROAD FUEL. 

THE LANGUAGE OF THE 1875 ACT SHOWS THAT ONLY AN EASEMENT WAS
GRANTED.  SECTION 1 REFERS TO "THE" RIGHT OF WAY; SEC. 2 REFERS TO "USE
AND OCCUPANCY"; AND SEC. 4 REQUIRES THE LOCATION OF EACH RIGHT OF WAY
TO BE NOTED ON THE PLATS IN THE LOCAL LAND OFFICE, AND PROVIDES THAT
"THEREAFTER ALL SUCH LANDS OVER WHICH SUCH RIGHT OF WAY SHALL PASS
SHALL BE DISPOSED OF SUBJECT TO SUCH RIGHT OF WAY."  AS THE COURT BELOW
REMARKED, "APTER WORDS TO INDICATE THE INTENT TO CONVEY AN EASEMENT
WOULD BE DIFFICULT TO FIND."  SINCE "NOTHING PASSES BUT WHAT IS
CONVEYED IN CLEAR AND EXPLICIT LANGUAGE - INFERENCES BEING RESOLVED NOT
AGAINST BUT FOR THE GOVERNMENT," IT SEEMS PATENT THAT THE 1875 ACT DID
NOT CONVEY TO THE RAILROADS THE UNDERLYING MINERALS FOR FUEL OR OTHER
PURPOSES.  CALDWELL V. UNITED STATES, 250 U.S. 14, 20-21. 

THE POLICY OF GRANTING LAND SUBSIDIES TO THE RAILROADS WAS
DISCONTINUED IN 1871.  THEREAFTER, THE GRANTS WERE RESTRICTED TO A MERE
RIGHT OF PASSAGE ACROSS THE PUBLIC DOMAIN,  - A RIGHT WHICH COULD BE
ACQUIRED IN NO OTHER WAY WHILE LARGE BLOCKS OF LAND WERE HELD BY A
SOVEREIGN IMMUNE FROM SUIT.  THIS SHIFT IN POLICY WAS FORMALLY
CRYSTALLIZED BY CONGRESSIONAL RESOLUTION IN 1872.  HOUSE RESOLUTION OF
MARCH 11, 1872, CONG. GLOBE, 42D CONG., 2D SESS., 1585.  AND THE
DEBATES PRECEDING THE ENACTMENT OF THE 1875 ACT SHOW CLEARLY THAT THE
GRANT IN THE ACT WAS CONSONANT WITH THE NEW POLICY OF STRICT LIMITATION
AND OF GRANTING EASEMENTS RATHER THAN FEES.  CF., 3 CONG. REC. PT. 1,
P. 407(1875). 

THE SUBSEQUENT ADMINISTRATIVE AND LEGISLATIVE CONSTRUCTION OF THE
1875 ACT REINFORCE THE CONCLUSION THAT ONLY AN EASEMENT WAS GRANTED. 

UNTIL THIS COURT UTTERED A CONTRARY DICTUM IN RIO GRANDE RY. V.
STRINGHAM, 239 U.S. 44(1915), THE ADMINISTRATIVE OFFICERS OF THE
GOVERNMENT CONSISTENTLY CONSTRUED THE 1875 ACT AS GRANTING AN EASEMENT
RATHER THAN A FEE.  THE CONTEMPORANEOUS DECISIONS OF THE LAND
DEPARTMENT LIKEWISE REFER TO THE 1875 GRANT AS A "MERE EASEMENT" (19
L.D. 588, 590), AS "AN INCORPOREAL HEREDITAMENT, AN EASEMENT AND NOT
THE LAND" (20 L.D. 131, 132), AS "IN THE NATURE OF A MERE EASEMENT" (32
L.D. 33, 34).  SUCH CONTEMPORANEOUS CONSTRUCTION OF A STATUTE SHOULD
NOT BE OVERTURNED EXCEPT FOR COGENT REASONS, AND UNLESS CLEARLY
ERRONEOUS.  UNITED STATES V. JOHNSTON, 124 U.S. 236, 253; UNITED STATES
V. MOORE, 95 U.S. 760, 763; BREWSTER V. GAGE, 290 U.S. 327, 336. 

DEPARTMENTAL CIRCULARS AND REGULATIONS ARE ESPECIALLY PERSUASIVE. 
FAWCUS MACHINE CO. V. UNITED STATES, 282 U.S. 375, 378; NORWEGIAN
NITROGEN CO. V. UNITED STATES, 288 U.S. 294, 315; SWENDIG V. WASHINGTON
CO., 265 U.S. 322, 331; MCFADDEN V. MOUNTAIN VIEW CO., 97 F. 670, 677;
TAGGART V. GREAT NORTHERN RY. CO., 208 F. 455, 460, AFF'D 211 F. 288. 

CONGRESS, TOO, HAS CONSTRUED THE 1875 ACT AS GRANTING AN EASEMENT
RATHER THAN A FEE.  FOR EXAMPLE, THE ACTS OF JUNE 26, 1906, C. 3550, 34
STAT. 482, AND FEBRUARY 25, 1909, C. 191, 35 STAT. 647, DECLARING A
FORFEITURE OF UNUSED RIGHTS OF WAY, STATE THAT THE LANDS COVERED
THEREBY SHALL BE "FREED AND DISCHARGED FROM SUCH EASEMENT."  SUCH CLEAR
CUT LEGISLATIVE PRONOUNCEMENTS ON THE MEANING OF THE 1875 ACT ARE AIDS
TO THE CONSTRUCTION OF THAT ACT.  TIGER V. WESTERN INVESTMENT CO., 221
U.S. 286, 309; UNITED STATES V. FREEMAN, 3 HOW.  556, 564-565; MCFADDEN
V. MOUNTAIN VIEW CO., SUPRA, 677; NORTHERN PACIFIC RY. V. SODERBERG,
188 U.S. 526, 533, 534. 

CASES CONSTRUING GRANTS MADE PRIOR TO 1871 AS VESTING A FEE IN THE
RAILROADS ARE THEREFORE WITHOUT FORCE.  THESE IMPORTANT DIFFERENCES
BETWEEN THE 1875 ACT AND THE EARLIER LAND GRANT ACTS WERE NOT CALLED TO
THIS COURT'S ATTENTION IN RIO GRANDE RY. V. STRINGHAM, 239 U.S. 44, A
CASE IN WHICH THE GOVERNMENT AND PRIVATE OWNERS WERE NOT REPRESENTED. 
HENCE, THE STATEMENT THERE MADE, BY WAY OF DICTUM, THAT THE RAILROADS
HAVE A "LIMITED FEE" IN RIGHTS OF WAY ACQUIRED UNDER THE 1875 ACT
SHOULD BE REEXAMINED. 

ADMINISTRATIVE CONSTRUCTION AFTER 1915 CAN NOT BE DEEMED BINDING UPON
THE DEPARTMENT OF THE INTERIOR, SINCE IT WAS IMPELLED BY THE APPARENT
COMPULSION OF THE STRINGHAM CASE.  HARTLEY V. COMMISSIONER, 295 U.S.
216, 220; HELVERING V. HALLOCK, 309 U.S. 106, 121.  AND IN ANY EVENT,
EARLIER DECISIONS, BEING MORE NEARLY CONTEMPORANEOUS WITH THE 1875
STATUTE AND EVIDENCING A LONG-CONTINUED AND UNIFORM CONSTRUCTION UNTIL
1915, ARE A MORE RELIABLE INDEX OF THE LEGISLATIVE INTENT AND ARE
ACCORDINGLY MORE PERSUASIVE.  FAWCUS MACHINE CO. V. UNITED STATES, 282
U.S. 375, 378; NORWEGIAN NITROGEN CO. V. UNITED STATES, 288 U.S. 294,
315. 

A REPUDIATION OF THE DICTUM IN THE STRINGHAM CASE BY A DECISION
HOLDING THAT THE 1875 ACT GRANTS THE RAILROADS AN EASEMENT RATHER THAN
A FEE WILL NOT DISTURB LAND TITLES; IT WILL MERELY RESTORE A RULE OF
PROPERTY WHICH EXISTED BETWEEN 1875 AND 1915, THE PERIOD DURING WHICH
MOST OF THESE RIGHTS OF WAY WERE ACQUIRED. 

BUT EVEN IF IT BE DETERMINED THAT THE RAILROAD HAS A "LIMITED FEE" IN
ITS RIGHT OF WAY, IT DOES NOT NECESSARILY FOLLOW THAT SUCH A "FEE"
INCLUDES THE RIGHT TO EXTRACT OIL AND OTHER MINERALS.  THE PURPOSES OF
CONGRESS ARE ACCOMPLISHED IF THE GRANT IS HELD TO BE A "FEE" IN THE
SURFACE AND SO MUCH OF THE SUBSURFACE AS IS NECESSARY FOR SUPPORT - A
"FEE" FOR A RAILROAD THOROUGHFARE EXCLUSIVELY.  CF. WESTERN UNION TEL.
CO. V. PENNSYLVANIA R. CO., 195 U.S. 540, 570.  SINCE SUCH AN INTEREST
WOULD ACCOMPLISH THE PURPOSES OF CONGRESS, THIS IS THE LARGEST INTEREST
WHICH THE APPLICABLE RULES OF CONSTRUCTION WILL PERMIT TO PASS UNDER
THE ACT.  CALDWELL V. UNITED STATES, 250 U.S. 14, 20-21.  UNDER SUCH A
CONSTRUCTION THE RAILROAD IS RESTRICTED IN THE USE OF THE LAND EXCEPT
AS A RAILROAD THOROUGHFARE.  THE RIGHT TO USE AND EXTRACT MINERALS IS A
USE OF THE LAND NOT PERMITTED TO THE RAILROAD.  CF. UNION MISSIONARY
BAPTIST CHURCH V. FYKE, 179 OKLA. 102; JORDAN V. GOLDMAN, 1 OKLA. 406,
453.    MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO DECIDE WHETHER PETITIONER HAS ANY RIGHT TO THE OIL
AND MINERALS UNDERLYING ITS RIGHT OF WAY ACQUIRED UNDER THE GENERAL
RIGHT OF WAY STATUTE, ACT OF MARCH 3, 1875, C. 152, 18 STAT. 482. 

THE UNITED STATES INSTITUTED THIS SUIT TO ENJOIN PETITIONER FROM
DRILLING FOR OR REMOVING GAS, OIL AND OTHER MINERALS SO SITUATED, AND
ALLEGED IN ITS COMPLAINT SUBSTANTIALLY THAT PETITIONER, IN 1907,
ACQUIRED FROM THE ST. PAUL, MINNEAPOLIS AND MANITOBA RAILWAY ALL OF THE
LATTER'S PROPERTY, INCLUDING RIGHTS OF WAY GRANTED IT UNDER THE ACT OF
MARCH 3, 1875, A PORTION OF WHICH CROSSES GLACIER COUNTY, MONTANA; THAT
PETITIONER ACQUIRED NEITHER THE RIGHT TO USE ANY PORTION OF SUCH RIGHT
OF WAY FOR THE PURPOSE OF DRILLING FOR OR REMOVING SUBSURFACE OIL AND
MINERALS, NOR ANY RIGHT, TITLE OR INTEREST IN OR TO THE DEPOSITS
UNDERLYING THE RIGHT OF WAY, BUT THAT THE OIL AND MINERALS REMAINED THE
PROPERTY OF THE UNITED STATES; AND, THAT ALTHOUGH NO LEASE HAD BEEN
ISSUED TO PETITIONER UNDER THE ACT OF MAY 21, 1930, 46 STAT. 373,
PETITIONER CLAIMED OWNERSHIP OF THE OIL AND MINERALS UNDERLYING ITS
RIGHT OF WAY AND THREATENED TO USE THE RIGHT OF WAY TO DRILL FOR AND
REMOVE SUBSURFACE OIL. 

PETITIONER ADMITTED CERTAIN ALLEGATIONS OF FACT, DENIED THE
ALLEGATION THAT TITLE TO THE OIL AND MINERALS WAS IN THE UNITED STATES,
AND ASSERTED THAT IT PROPOSED TO DRILL THREE SEPARATE OIL WELLS - THE
OIL FROM THE FIRST TO BE SOLD COMMERCIALLY, THAT FROM THE SECOND TO BE
REFINED, THE MORE VOLATILE PARTS TO BE SOLD AND THE RESIDUE TO BE USED
ON PETITIONER'S LOCOMOTIVES, AND THAT FROM THE THIRD TO BE USED IN ITS
ENTIRETY BY PETITIONER AS FUEL. 

PURSUANT TO A MOTION THEREFOR BY THE UNITED STATES, JUDGMENT WAS
RENDERED ON THE PLEADINGS AND PETITIONER WAS ENJOINED FROM "USING THE
RIGHT OF WAY GRANTED UNDER THE ACT OF MARCH 3, 1875, 18 STAT. 482, FOR
THE PURPOSE OF DRILLING FOR OR REMOVING OIL, GAS AND MINERALS
UNDERLYING THE RIGHT OF WAY."  THE CIRCUIT COURT OF APPEALS AFFIRMED. 
119 F.2D 821.  THE IMPORTANCE OF THE QUESTION AND AN ASSERTED CONFLICT
WITH RIO GRANDE WESTERN RY. CO. V. STRINGHAM, 239 U.S. 44, MOVED US TO
GRANT CERTIORARI.  314 U.S. 596. 

THE ACT OF MARCH 3, 1875, FROM WHICH PETITIONER'S RIGHTS STEM,
CLEARLY GRANTS ONLY AN EASEMENT, AND NOT A FEE.  SECTION 1 INDICATES
THAT THE RIGHT IS ONE OF PASSAGE SINCE IT GRANTS "THE," NOT A, "RIGHT
OF WAY THROUGH THE PUBLIC LANDS OF THE UNITED STATES."  SECTION 2 ADDS
TO THE CONCLUSION THAT THE RIGHT GRANTED IS ONE OF USE AND OCCUPANCY
ONLY, RATHER THAN THE LAND ITSELF, FOR IT DECLARES THAT ANY RAILROAD
WHOSE RIGHT OF WAY PASSES THROUGH A CANYON, PASS OR DEFILE "SHALL NOT
PREVENT ANY OTHER RAILROAD COMPANY FROM THE USE AND OCCUPANCY OF THE
SAID CANYON, PASS, OR DEFILE, FOR THE PURPOSES OF ITS ROAD, IN COMMON
WITH THE ROAD FIRST LOCATED." 

RIGHT OF WAY TO BE NOTED ON THE PLATS IN THE LOCAL LAND OFFICE, AND
"THEREAFTER ALL SUCH LANDS OVER WHICH SUCH RIGHT OF WAY SHALL PASS
SHALL BE DISPOSED OF SUBJECT TO SUCH RIGHT OF WAY."  THIS RESERVED
RIGHT TO DISPOSE OF THE LANDS SUBJECT TO THE RIGHT OF WAY IS WHOLLY
INCONSISTENT WITH THE GRANT OF A FEE.  AS THE COURT BELOW POINTED OUT,
"APTER WORDS TO INDICATE THE INTENT TO CONVEY AN EASEMENT WOULD BE
DIFFICULT TO FIND."  THAT THIS WAS THE PRECISE INTENT OF SEC. 4 IS
CLEAR FROM ITS LEGISLATIVE HISTORY.  FN3  WHILE SEC. 4 PROVIDES A
METHOD FOR SECURING THE BENEFITS OF THE ACT IN ADVANCE OF CONSTRUCTION,
FN4  NO ADEQUATE REASON IS ADVANCED FOR BELIEVING THAT IT DOES NOT
ILLUMINE THE NATURE OF THE RIGHT GRANTED.  THE ACT IS TO BE INTERPRETED
AS A HARMONIOUS WHOLE. 

THE ACT IS TO BE LIBERALLY CONSTRUED TO CARRY OUT ITS PURPOSES. 
UNITED STATES V. DENVER & R.G. RY. CO., 150 U.S. 1, 14; NADEAU V. UNION
PACIFIC R. CO., 253 U.S. 442; GREAT NORTHERN RY. CO. V. STEINKE, 261
U.S. 119.  BUT THE ACT IS ALSO SUBJECT TO THE GENERAL RULE OF
CONSTRUCTION THAT ANY AMBIGUITY IN A GRANT IS TO BE RESOLVED FAVORABLY
TO A SOVEREIGN GRANTOR - "NOTHING PASSES BUT WHAT IS CONVEYED IN CLEAR
AND EXPLICIT LANGUAGE" - CALDWELL V. UNITED STATES, 250 U.S. 14, 20-21,
AND CASES CITED.  CF. GREAT NORTHERN RY. CO. V. STEINKE, SUPRA.
PLAINLY, THERE IS NOTHING IN THE ACT WHICH MAY BE CHARACTERIZED AS A
"CLEAR AND EXPLICIT" CONVEYANCE OF THE UNDERLYING OIL AND MINERALS. 
THE ACT WAS DESIGNED TO PERMIT THE CONSTRUCTION OF RAILROADS THROUGH
THE PUBLIC LANDS AND THUS ENHANCE THEIR VALUE AND HASTEN THEIR
SETTLEMENT.  THE ACHIEVEMENT OF THAT PURPOSE DOES NOT COMPEL A
CONSTRUCTION OF THE RIGHT OF WAY GRANT AS CONVEYING A FEE TITLE TO THE
LAND AND THE UNDERLYING MINERALS; A RAILROAD MAY BE OPERATED THOUGH ITS
RIGHT OF WAY BE BUT AN EASEMENT.  FN5 

BUT WE ARE NOT LIMITED TO THE LIFELESS WORDS OF THE STATUTE AND
FORMALISTIC CANONS OF CONSTRUCTION IN OUR SEARCH FOR THE INTENT OF
CONGRESS.  THE ACT WAS THE PRODUCT OF A PERIOD, AND, "COURTS, IN
CONSTRUING A STATUTE, MAY WITH PROPRIETY RECUR TO THE HISTORY OF THE
TIMES WHEN IT WAS PASSED."  UNITED STATES V. UNION PACIFIC R. CO., 91
U.S. 72, 79.  AND SEE WINONA & ST. PETER R. CO. V. BARNEY, 113 U.S.
618, 625; SMITH V. TOWNSEND, 148 U.S. 490, 494; UNITED STATES V. DENVER
& R.G. RY. CO., 150 U.S. 1, 14. 

BEGINNING IN 1850, CONGRESS EMBARKED ON A POLICY OF SUBSIDIZING
RAILROAD CONSTRUCTION BY LAVISH GRANTS FROM THE PUBLIC DOMAIN.  FN6
THIS POLICY INCURRED GREAT PUBLIC DISFAVOR,  FN7  WHICH WAS
CRYSTALLIZED IN THE FOLLOWING RESOLUTION ADOPTED BY THE HOUSE OF
REPRESENTATIVES ON MARCH 11, 1872: 

"RESOLVED, THAT IN THE JUDGMENT OF THIS HOUSE THE POLICY OF GRANTING
SUBSIDIES IN PUBLIC LANDS TO RAILROADS AND OTHER CORPORATIONS OUGHT TO
BE DISCONTINUED, AND THAT EVERY CONSIDERATION OF PUBLIC POLICY AND
EQUAL JUSTICE TO THE WHOLE PEOPLE REQUIRES THAT THE PUBLIC LANDS SHOULD
BE HELD FOR THE PURPOSE OF SECURING HOMESTEADS TO ACTUAL SETTLERS, AND
FOR EDUCATIONAL PURPOSES, AS MAY BE PROVIDED BY LAW."  CONG. GLOBE, 42D
CONG., 2D SESS., 1585(1872).  AFTER 1871 OUTRIGHT GRANTS OF PUBLIC
LANDS TO PRIVATE RAILROAD COMPANIES SEEM TO HAVE BEEN DISCONTINUED. 
FN8  BUT, TO ENCOURAGE DEVELOPMENT OF THE WESTERN VASTNESSES, CONGRESS
HAD TO GRANT RIGHTS TO LAY TRACK ACROSS THE PUBLIC DOMAIN, RIGHTS WHICH
COULD NOT BE SECURED AGAINST THE SOVEREIGN BY EMINENT DOMAIN
PROCEEDINGS OR ADVERSE USER.  FOR A TIME SPECIAL ACTS WERE PASSED
GRANTING TO DESIGNATED RAILROADS SIMPLY "THE RIGHT OF WAY" THROUGH THE
PUBLIC LANDS OF THE UNITED STATES.  FN9  THAT THOSE ACTS WERE NOT
INTENDED TO CONVEY ANY LAND IS INFERABLE FROM REMARKS IN CONGRESS BY
THOSE SPONSORING THE MEASURES.  FOR EXAMPLE, IN REPORTING A BILL
GRANTING A RIGHT OF WAY TO THE DAKOTA GRAND TRUNK RAILWAY (17 STAT.
202), THE COMMITTEE CHAIRMAN SAID:  "THIS IS MERELY A GRANT OF THE
RIGHT OF WAY."  FN10  LIKEWISE, IN REPORTING A RIGHT OF WAY BILL FOR
THE NEW MEXICO AND GULF RAILWAY COMPANY (17 STAT. 343), MR. TOWNSEND OF
PENNSYLVANIA, THE SAME CONGRESSMAN WHO SPONSORED THE ACT OF 1875,
OBSERVED:  "IT IS NOTHING BUT A GRANT OF THE RIGHT OF WAY."  FN11 

THE BURDEN OF THIS SPECIAL LEGISLATION MOVED CONGRESS TO ADOPT THE
GENERAL RIGHT OF WAY STATUTE NOW BEFORE THIS COURT.  SINCE IT WAS A
PRODUCT OF THE SHARP CHANGE IN CONGRESSIONAL POLICY WITH RESPECT TO
RAILROAD GRANTS AFTER 1871, IT IS IMPROBABLE THAT CONGRESS INTENDED BY
IT TO GRANT MORE THAN A RIGHT OF PASSAGE, LET ALONE MINERAL RICHES. 
THE PRESENCE IN THE ACT OF SEC. 4, WHICH, AS HAS BEEN POINTED OUT
ABOVE, IS SO INCONSISTENT WITH THE GRANT OF A FEE, STRONGLY INDICATES
THAT CONGRESS WAS CARRYING INTO EFFECT ITS CHANGED POLICY REGARDING
RAILROAD GRANTS.  FN12 

ALSO PERTINENT TO THE CONSTRUCTION OF THE ACT IS THE CONTEMPORANEOUS
ADMINISTRATIVE INTERPRETATION PLACED ON IT BY THOSE CHARGED WITH ITS
EXECUTION.  CF. UNITED STATES V. JOHNSTON, 124 U.S. 236, 253; UNITED
STATES V. MOORE, 95 U.S. 760, 763; NORWEGIAN NITROGEN CO. V. UNITED
STATES, 288 U.S. 294, 315.  THE FIRST SUCH INTERPRETATION, THE GENERAL
RIGHT OF WAY CIRCULAR OF JANUARY 13, 1888, WAS THAT THE ACT GRANTED AN
EASEMENT, NOT A FEE.  FN13  THE SAME POSITION WAS TAKEN IN THE
REGULATIONS OF MARCH 21, 1892, 14 L.D. 338, AND THOSE OF NOVEMBER 4,
1898, 27 L.D. 663.  WHILE THE FIRST OF THESE CIRCULARS FOLLOWED THE ACT
BY 13 YEARS, THE WEIGHT TO BE ACCORDED THEM IS NOT DEPENDENT ON STRICT
CONTEMPORANEITY.  CF. SWENDIG V. WASHINGTON CO., 265 U.S. 322.  THIS
EARLY ADMINISTRATIVE GLOSS RECEIVED INDIRECT CONGRESSIONAL APPROVAL
WHEN CONGRESS REPEATED THE LANGUAGE OF THE ACT IN GRANTING CANAL AND
RESERVOIR COMPANIES RIGHTS OF WAY BY THE ACT OF MARCH 3, 1891, C. 561,
26 STAT. 1101, AND WHEN CONGRESS MADE THE ACT OF 1875 PARTIALLY
APPLICABLE TO THE COLVILLE INDIAN RESERVATION BY ACT OF MARCH 6, 1896,
C. 42, 29 STAT. 44.  CF. NATIONAL LEAD CO. V. UNITED STATES, 252 U.S.
140, 146. 

THE CIRCULAR OF FEBRUARY 11, 1904, 32 L.D. 481, DESCRIBED THE RIGHT
AS A "BASE OR QUALIFIED FEE."  THIS SHIFT IN INTERPRETATION WAS
PROBABLY DUE TO THE DESCRIPTION IN NORTHERN PACIFIC RY. CO. V.
TOWNSEND, 190 U.S. 267, 271, OF A RIGHT OF WAY CONVEYED IN A LAND-GRANT
ACT (13 STAT. 365) AS A "LIMITED FEE, MADE ON AN IMPLIED CONDITION OF
REVERTER."  N14  BUT THE EARLIER VIEW WAS REASSERTED IN THE
DEPARTMENTAL REGULATIONS OF MAY 21, 1909, 37 L.D. 787.  FN15  AFTER
1915, ADMINISTRATIVE CONSTRUCTION BOWED TO THE CASE OF RIO GRANDE
WESTERN RY. CO. V. STRINGHAM, 239 U.S. 44, WHICH APPLIED THE LANGUAGE
OF THE TOWNSEND CASE TO A RIGHT OF WAY ACQUIRED UNDER THE ACT OF 1875. 
WE DO NOT REGARD THIS SUBSEQUENT INTERPRETATION AS BINDING ON THE
DEPARTMENT OF THE INTERIOR SINCE IT WAS IMPELLED BY WHAT WE REGARD AS
INACCURATE STATEMENTS IN THE STRINGHAM CASE.  CF. HELVERING V. HALLOCK,
309 U.S. 106, 121. 

CONGRESS ITSELF IN LATER LEGISLATION HAS INTERPRETED THE ACT OF 1875
AS CONVEYING BUT AN EASEMENT.  THE ACT OF JUNE 26, 1906, C. 3550, 34
STAT. 482, DECLARING A FORFEITURE OF UNUSED RIGHTS OF WAY, PROVIDES IN
PART THAT:  "THE UNITED STATES HEREBY RESUMES THE FULL TITLE TO THE
LANDS COVERED THEREBY (BY THE RIGHT OF WAY) FREED AND DISCHARGED FROM
SUCH EASEMENT."  THIS LANGUAGE IS REPEATED IN THE FORFEITURE ACT OF
FEBRUARY 25, 1909, C. 191, 35 STAT. 647.  ALSO ON JUNE 26, 1906, AN ACT
FN16  WAS PASSED CONFIRMING THE RIGHTS OF WAY WHICH CERTAIN RAILROADS
HAD ACQUIRED UNDER THE 1875 ACT IN THE TERRITORIES OF OKLAHOMA AND
ARIZONA.  THE HOUSE COMMITTEE REPORT ON THIS BILL SAID:  "THE RIGHT AS
ORIGINALLY CONFERRED AND AS PROPOSED TO BE PROTECTED BY THIS BILL
SIMPLY GRANTS AN EASEMENT OR USE FOR RAILROAD PURPOSES.  UNDER THE
PRESENT LAW WHEREVER THE RAILROAD PASSES THROUGH A TRACT OF PUBLIC LAND
THE ENTIRE TRACT IS PATENTED TO THE SETTLER OR ENTRYMAN, SUBJECT ONLY
TO THIS EASEMENT."  FN17  IT IS SETTLED THAT "SUBSEQUENT LEGISLATION
MAY BE CONSIDERED TO ASSIST IN THE INTERPRETATION OF PRIOR LEGISLATION
UPON THE SAME SUBJECT."  TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286,
309.  SEE ALSO COPE V. COPE, 137 U.S. 682; UNITED STATES V. FREEMAN, 3
HOW.  556.  THESE STATUTES WERE APPROXIMATELY CONTEMPORANEOUS WITH
PETITIONER'S ACQUISITION OF THE RIGHTS OF WAY OF THE ST. PAUL,
MINNEAPOLIS AND MANITOBA RAILWAY. 

THAT PETITIONER HAS ONLY AN EASEMENT IN ITS RIGHTS OF WAY ACQUIRED
UNDER THE ACT OF 1875 IS THEREFORE CLEAR FROM THE LANGUAGE OF THE ACT,
ITS LEGISLATIVE HISTORY, ITS EARLY ADMINISTRATIVE INTERPRETATION AND
THE CONSTRUCTION PLACED UPON IT BY CONGRESS IN SUBSEQUENT ENACTMENTS. 

PETITIONER, SEEKING TO OBVIATE THIS RESULT, RELIES ON SEVERAL CASES
IN THIS COURT STATING THAT RAILROADS HAVE A "LIMITED," "BASE," OR
"QUALIFIED" FEE IN THEIR RIGHTS OF WAY.  FN18  ALL OF THOSE CASES,
EXCEPT RIO GRANDE WESTERN RY. CO. V. STRINGHAM, 239 U.S. 44, 47;
CHOCTAW, O. & G.R. CO. V. MACKEY, 256 U.S. 531; AND NOBLE V. OKLAHOMA
CITY, 297 U.S. 481, DEAL WITH RIGHTS OF WAY CONVEYED BY LAND-GRANT ACTS
BEFORE THE SHIFT IN CONGRESSIONAL POLICY OCCURRED IN 1871.  FOR THAT
REASON THEY ARE NOT CONTROLLING HERE.  FN19  WHEN CONGRESS MADE
OUTRIGHT GRANTS TO A RAILROAD OF ALTERNATE SECTIONS OF PUBLIC LANDS
ALONG THE RIGHT OF WAY, THERE IS LITTLE REASON TO SUPPOSE THAT IT
INTENDED TO GIVE ONLY AN EASEMENT IN THE RIGHT OF WAY GRANTED IN THE
SAME ACT.  AND, IN NONE OF THOSE ACTS WAS THERE ANY PROVISION
COMPARABLE TO THAT OF SEC. 4 OF THE 1875 ACT THAT "LANDS OVER WHICH
SUCH RIGHT OF WAY SHALL PASS SHALL BE DISPOSED OF SUBJECT TO SUCH RIGHT
OF WAY."  NONE OF THE CASES INVOLVED THE PROBLEM OF RIGHTS TO
SUBSURFACE OIL AND MINERALS. 

IN THE STRINGHAM CASE, IT WAS SAID THAT A RIGHT OF WAY UNDER THE ACT
OF 1875 IS "NEITHER A MERE EASEMENT, NOR A FEE SIMPLE ABSOLUTE, BUT A
LIMITED FEE, MADE ON AN IMPLIED CONDITION OF REVERTER IN THE EVENT THAT
THE COMPANY CEASES TO USE OR RETAIN THE LAND FOR THE PURPOSES FOR WHICH
IT IS GRANTED, AND CARRIES WITH IT THE INCIDENTS AND REMEDIES USUALLY
ATTENDING THE FEE."  THE RAILROAD HAD BROUGHT SUIT TO QUIET TITLE TO A
PORTION OF ITS RIGHT OF WAY.  STRINGHAM ASSERTED TITLE TO THAT PORTION
BY VIRTUE OF A PURPORTED PURCHASE OF SURFACE RIGHTS FROM A PLACER MINE
CLAIMANT.  THE SUPREME COURT OF UTAH REVERSED THE JUDGMENT OF THE TRIAL
COURT AND REMANDED THE CASE, DIRECTING THE ENTRY OF "A JUDGMENT
AWARDING TO THE PLAINTIFF TITLE TO A RIGHT OF WAY OVER THE LANDS IN
QUESTION."  38 UTAH 113, 110 P. 868.  THE RAILROAD AGAIN APPEALED,
ASSERTING THAT IT SHOULD HAVE BEEN ADJUDGED "OWNER IN FEE SIMPLE OF THE
RIGHT OF WAY OVER THE PREMISES."  THE SUPREME COURT OF UTAH AFFIRMED
THE JUDGMENT OF THE TRIAL COURT ON THE GROUND THAT THE RAILROAD'S
PROPER REMEDY WAS BY PETITION FOR REHEARING OF THE FIRST APPEAL.  39
UTAH 236, 115 P. 967.  BOTH JUDGMENTS WERE BROUGHT TO THIS COURT BY
WRIT OF ERROR.  IT WAS HELD THAT THE SECOND JUDGMENT PRESENTED NOTHING
REVIEWABLE.  THE FIRST JUDGMENT WAS AFFIRMED SINCE IT "DESCRIBES THE
RIGHT OF WAY IN THE EXACT TERMS OF THE RIGHT-OF-WAY ACT, AND EVIDENTLY
USES THOSE TERMS WITH THE SAME MEANING THEY HAVE IN THE ACT."    THE
CONCLUSION THAT THE RAILROAD WAS THE OWNER OF A "LIMITED FEE" WAS BASED
ON CASES ARISING UNDER THE LANDGRANT ACTS PASSED PRIOR TO 1871, AND IT
DOES NOT APPEAR THAT CONGRESS' CHANGE OF POLICY AFTER 1871 WAS BROUGHT
TO THE COURT'S ATTENTION.  FN20  THAT CONCLUSION IS INCONSISTENT WITH
THE LANGUAGE OF THE ACT, ITS LEGISLATIVE HISTORY, ITS EARLY
ADMINISTRATIVE INTERPRETATION AND THE CONSTRUCTION PLACED ON IT BY
CONGRESS IN SUBSEQUENT LEGISLATION.  WE THEREFORE DO NOT REGARD IT AS
CONTROLLING.  STATEMENTS IN CHOCTAW, O. & G.R. CO. V. MACKEY, 256 U.S.
531, AND NOBLE V. OKLAHOMA CITY, 297 U.S. 481, THAT THE 1875 ACT
CONVEYED A LIMITED FEE ARE DICTA BASED ON THE STRINGHAM CASE, AND
ENTITLED TO NO MORE WEIGHT THAN THE STATEMENTS IN THAT CASE.  FAR MORE
PERSUASIVE ARE TWO CASES INVOLVING SPECIAL ACTS GRANTING RIGHTS OF WAY,
PASSED AFTER 1871 AND RATHER SIMILAR TO THE GENERAL ACT OF 1875.  FN21
RAILWAY CO. V. ALLING, 99 U.S. 463, CHARACTERIZED THE RIGHT SO GRANTED
AS "A PRESENT BENEFICIAL EASEMENT," AND SMITH V. TOWNSEND, 148 U.S.
490, REFERRED TO IT AS "SIMPLY AS AN EASEMENT, NOT A FEE."  WE THINK
THAT THE ACT OF 1875 IS TO BE SIMILARLY CONSTRUED. 

SINCE PETITIONER'S RIGHT OF WAY IS BUT AN EASEMENT, IT HAS NO RIGHT
TO THE UNDERLYING OIL AND MINERALS.  THIS RESULT DOES NOT FREEZE THE
OIL AND MINERALS IN PLACE.  PETITIONER IS FREE TO DEVELOP THEM UNDER A
LEASE EXECUTED PURSUANT TO THE ACT OF MAY 21, 1930, 46 STAT. 373. 

DURING THE ARGUMENT BEFORE THIS COURT, IT WAS FULLY DEVELOPED THAT
THE JUDGMENT WAS RENDERED ON THE PLEADINGS, IN WHICH PETITIONER DENIED
THE ALLEGATION OF TITLE IN THE UNITED STATES, AND THERE WAS NO PROOF OR
STIPULATION THAT THE UNITED STATES HAD ANY TITLE.  ON THIS STATE OF THE
RECORD, THE UNITED STATES WAS NOT ENTITLED TO ANY JUDGMENT BELOW. 
HOWEVER, WE PERMITTED THE PARTIES TO CURE THIS DEFECT BY A STIPULATION
SHOWING THAT THE UNITED STATES HAS RETAINED TITLE TO CERTAIN TRACTS OF
LAND OVER WHICH PETITIONER'S RIGHT OF WAY PASSES, IN A LIMITED AREA,
FN22  AND THAT PETITIONER INTENDED TO DRILL FOR AND REMOVE THE OIL
UNDERLYING ITS RIGHT OF WAY OVER EACH OF THOSE TRACTS.  ACCORDINGLY,
THE JUDGMENT WILL BE MODIFIED AND LIMITED TO THE AREAS DESCRIBED IN THE
STIPULATION.  AS SO MODIFIED, IT IS AFFIRMED. 

FN3  THIS CLAUSE FIRST APPEARED IN A SPECIAL RIGHT OF WAY STATUTE,
PORTLAND, DALLES, AND SALT LAKE ACT OF APRIL 12, 1872, 17 STAT. 52. 
CONGRESSMAN SLATER REPORTED THAT BILL FOR THE PUBLIC LANDS COMMITTEE,
AND, IN DISCUSSING THE REASON FOR THE CLAUSE, SAID: 

"MR. SLATER.  THE POINT (OF THIS CLAUSE) IS SIMPLY THIS:  THE LAND
OVER WHICH THIS RIGHT OF WAY PASSES IS TO BE SOLD SUBJECT TO THE RIGHT
OF WAY.  IT SIMPLY PROVIDES THAT THIS RIGHT OF WAY SHALL BE AN
INCUMBRANCE UPON THE LAND FOR ONE HUNDRED FEET UPON EACH SIDE OF THE
LINE OF THE ROAD; THAT THOSE WHO MAY AFTERWARD MAKE LOCATIONS FOR
SETTLEMENT SHALL NOT INTERFERE WITH THIS RIGHT OF WAY. 

"MR. SPEER, OF PENNSYLVANIA.  IT GRANTS NO LAND TO ANY RAILROAD
COMPANY? 

"MR. SLATER.  NO, SIR."  (CONG. GLOBE, 42D CONG., 2D SESS.,
2137(1872).) 

FN4  THE RIGHT OF WAY MAY BE LOCATED BY CONSTRUCTION.  DAKOTA CENTRAL
R. CO. V. DOWNEY, 8 L.D. 115; JAMESTOWN & NORTHERN R. CO. V. JONES, 177
U.S. 125; STALKER V. OREGON SHORT LINE R. CO., 225 U.S. 142. 

FN5  IN RAILWAY CO. V. ALLING, 99 U.S. 463, AND SMITH V. TOWNSEND,
148 U.S. 490, STATUTORY RIGHTS OF WAY WERE HELD TO BE BUT EASEMENTS. 
AND, IT HAS BEEN HELD THAT RAILROADS DO NOT HAVE A FEE IN THOSE
PORTIONS OF THEIR RIGHTS OF WAY ACQUIRED BY EMINENT DOMAIN
PROCEEDINGS.  SEE EAST ALABAMA RY. CO. V. DOE, 114 U.S. 340; QUICK V.
TAYLOR, 113 IND. 540, 16 N.E. 588; MISSOURI, K. & N.W.R. CO. V.
SCHMUCK, 69 KAN. 272, 76 P. 836; KEOWN V. BRANDON, 206 KY. 93, 266 S.W.
889; HALL V. BOSTON & MAINE RAILROAD, 211 MASS. 174, 97 N.W. 914;
ROBERTS V. SIOUX CITY & P.R. CO., 73 NEB. 8, 102 N.W. 60; WASHINGTON
CEMETERY V. PROSPECT PARK & C.I.R. CO., 68 N.Y. 591. 

FN6  TYPICAL WERE THE ILLINOIS CENTRAL GRANT, ACT OF SEPTEMBER 20,
1850, C. 61, 9 STAT. 466; UNION PACIFIC GRANT OF JULY 1, 1862, C. 120,
12 STAT. 489; AMENDED UNION PACIFIC GRANT, ACT OF JULY 2, 1864, C. 216,
13 STAT. 356; AND NORTHERN PACIFIC GRANT, ACT OF JULY 2, 1864, C. 217,
13 STAT. 365.  THIS LAST GRANT WAS THE LARGEST, INVOLVING AN ESTIMATED
40,000,000 ACRES.  IN VIEW OF THIS LAVISH POLICY OF GRANTS FROM THE
PUBLIC DOMAIN IT IS NOT SURPRISING THAT THE RIGHTS OF WAY CONVEYED IN
SUCH LANDGRANT ACTS HAVE BEEN HELD TO BE LIMITED FEES.  NORTHERN
PACIFIC RY. CO. V. TOWNSEND, 190 U.S. 267.  CF. MISSOURI, K. & T. RY.
CO. V. ROBERTS, 152 U.S. 114. 

FN7  SEE "LAND GRANTS," 9 ENCYCLOPEDIA OF THE SOCIAL SCIENCES (1933),
P. 35; "LAND GRANTS TO RAILWAYS," 3 DICTIONARY OF AMERICAN HISTORY
(1940), P. 237. 

FN8  IBID.  AND SEE H. REPT. NO. 10, 43D CONG., 2D SESS. (1874), P.
1(SER.  NO. 1656) RECOMMENDING THAT A BILL TO GRANT LANDS TO AID IN THE
CONSTRUCTION OF A RAILROAD NOT PASS.  SEE ALSO THE REMARKS OF MR.
DUNNELL IN REPORTING A SPECIAL RIGHT OF WAY BILL FOR THE PUBLIC LANDS
COMMITTEE, CONG. GLOBE, 42D CONG., 2D SESS., 2543(1872), AND THOSE OF
MR. TOWNSEND, WHO WAS IN CHARGE OF THE BILL WHICH BECAME THE ACT OF
1875, IN REPORTING TO THE HOUSE THE SENATE BILL AND THE HOUSE
SUBSTITUTE.  CONG. REC., 43D CONG., 2D SESS., VOL. 3, PT. 1,
404(1875). 

FN9  THE FORTY-SECOND AND FORTY-THIRD CONGRESSES (1871-1875) PASSED
AT LEAST FIFTEEN SUCH ACTS. 

FN10  CONG. GLOBE, 42D CONG., 2D SESS., 3913(1872). 

FN11  CONG. GLOBE, 42D CONG., 2D SESS., 4134(1872).  SEE ALSO P.
2543. 

FN12  SEE NOTE 3, ANTE. 

FN13  "THE ACT OF MARCH 3, 1875, IS NOT IN THE NATURE OF A GRANT OF
LANDS; IT DOES NOT CONVEY AN ESTATE IN FEE, EITHER IN THE 'RIGHT OF
WAY' OR THE GROUNDS SELECTED FOR DEPOT PURPOSES.  IT IS A RIGHT OF USE
ONLY, THE TITLE STILL REMAINING IN THE UNITED STATES.  ... 

"ALL PERSONS SETTLING ON PUBLIC LANDS TO WHICH A RAILROAD RIGHT OF
WAY HAS ATTACHED, TAKE THE SAME SUBJECT TO SUCH RIGHT OF WAY AND MUST
PAY FOR THE FULL AREA OF THE SUBDIVISION ENTERED, THERE BEING NO
AUTHORITY TO MAKE DEDUCTIONS IN SUCH CASES."  12 L.D. 423, 428. 

FN14  SEE NOTE 6, ANTE. 

FN15  THE DECISIONS OF THE LANDS DEPARTMENT CONSTRUING THE 1875 ACT
ARE IN ACCORD.  FREMONT, E. & M.V. RY. CO., 19 L.D. 588; MARY G.
ARNETT, 20 L.D. 131; JOHN W. WEHN, 32 L.D. 33; GRAND CANYON RY. CO. V.
CAMERON, 35 L.D. 495. 

FN16  34 STAT. 481. 

FN17  H. REPT. NO. 4777, 59TH CONG., 1ST SESS., P. 2(SER.  NO. 4908);
CF. S. REPT. NO. 1417, 59TH CONG., 1ST SESS., P. 2(SER.  NO. 4904). 

FN18  BUTTZ V. NORTHERN PACIFIC RAILROAD, 119 U.S. 55; CLAIRMONT V.
UNITED STATES, 225 U.S. 551; MISSOURI, K. & T. RY. CO. V. ROBERTS, 152
U.S. 114; MISSOURI, K. & T. RY. CO. V. OKLAHOMA, 271 U.S. 303; NEW
MEXICO V. UNITED STATES TRUST CO., 172 U.S. 171; NORTHERN PACIFIC RY.
V. TOWNSEND, 190 U.S. 267; UNITED STATES V. MICHIGAN, 190 U.S. 379;
NORTHERN PACIFIC RAILWAY CO. V. ELY, 197 U.S. 1; RIO GRANDE WESTERN RY.
CO. V. STRINGHAM, 239 U.S. 44; CHOCTAW, O. & G.R. CO. V. MACKEY, 256
U.S. 531; NOBLE V. OKLAHOMA CITY, 297 U.S. 481. 

FN19  SEE NOTE 6, ANTE. 

FN20  NO BRIEF WAS FILED BY THE DEFENDANT OR THE UNITED STATES. 

FN21  17 STAT. 339; 23 STAT. 73. 

FN22  LOTS 1, 2 AND 3, SEC. 12; LOTS 1, 4, 5, 9 AND 10, SEC. 13, T.
29 N., R. 15 W., MONTANA MERIDIAN, ALL BEING WITHIN THE EXTERIOR
BOUNDARIES OF THE GLACIER NATIONAL PARK; NW 1/4 SE 1/4 SEC. 28; NW 1/4
SEC. 29; NE 1/4 NW 1/4 SEC. 30; NE 1/4 SEC. 34, T. 32 N., R. 24 E.,
MONTANA MERIDIAN. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :


















U.S. V. JOLIET & CHICAGO RAILROAD CO., 315 U.S. 44 


NO. 151.  ARGUED JANUARY 8, 1942.  - DECIDED JANUARY 19, 1942.  - 118
F.2D 174, REVERSED. 


1.  SUMS PAID AS DIVIDENDS BY A TRANSFEREE CORPORATION TO THE
STOCKHOLDERS OF A TRANSFEROR CORPORATION, AND AMOUNTS PAID BY THE
TRANSFEREE CORPORATION AS INCOME TAXES ON THE SUMS SO DISTRIBUTED AS
DIVIDENDS, HELD, UNDER THE REVENUE ACT OF 1928, TAXABLE INCOME OF THE
TRANSFEROR CORPORATION, ALTHOUGH THE TRANSFER WAS OF ALL THE
TRANSFEROR'S PROPERTY, BY A "LEASE" IN PERPETUITY WITHOUT A DEFEASANCE
CLAUSE, AND ALTHOUGH THE DIVIDENDS WERE PAID, PURSUANT TO THE "LEASE,"
BY THE TRANSFEREE DIRECTLY TO THE STOCKHOLDERS OF THE TRANSFEROR.  PP.
46, 49. 

2.  ARTICLE 70 OF TREASURY REGULATIONS 74, PROMULGATED UNDER THE
REVENUE ACT OF 1928, AUTHORIZING SUCH CONSTRUCTION OF THE ACT, HELD
VALID.  P. 47. 

UNITED STATES V. JOLIET & CHICAGO RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 314 U.S. 591, TO REVIEW THE REVERSAL OF A JUDGMENT
DISALLOWING A CLAIM FOR REFUND OF INCOME TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

BY AN INDENTURE DENOMINATED A "LEASE," RESPONDENT IN 1864 GRANTED,
DEMISED AND LEASED TO CHICAGO & ALTON RAILROAD CO. ALL OF ITS RAILROAD
PROPERTY, REAL AND PERSONAL.  THE "LEASE" WAS IN PERPETUITY UPON
SPECIFIED TERMS AND CONDITIONS.  THE CHICAGO & ALTON RAILROAD CO.
COVENANTED AND AGREED, INTER ALIA, TO GUARANTEE AND PAY QUARTERLY TO
THE HOLDERS OF THE FIFTEEN THOUSAND SHARES OF CAPITAL STOCK OF
RESPONDENT AN ANNUAL DIVIDEND OF SEVEN PER CENT ON THE PAR VALUE OF THE
SHARES; TO DEPOSIT WITH A DESIGNATED DEPOSITORY SPECIFIED MONTHLY SUMS
TO BE PLACED TO THE CREDIT OF THE STOCKHOLDERS AND TO BE HELD AS A FUND
FOR THE PURPOSE OF PAYING THE DIVIDENDS; TO PAY THE DIVIDENDS WITHOUT
ANY DEDUCTION FOR ANY FEDERAL TAX WHATSOEVER; TO PAY ALL TAXES WHICH
MAY BE DUE TO THE UNITED STATES "ON ACCOUNT OF SAID DIVIDEND SO PAID
FROM TIME TO TIME"; AND TO PLEDGE TO RESPONDENT THIRTY-SEVEN PARTS OUT
OF TWO HUNDRED AND FIFTY-SEVEN PARTS OF THE GROSS RECEIPTS OF THE LINE
BETWEEN THE CITIES OF ALTON AND CHICAGO FOR THE PURPOSE OF SECURING THE
PERFORMANCE OF ITS VARIOUS COVENANTS.  THE "LEASE" CONTAINED NO
DEFEASANCE CLAUSE. 

THE ANNUAL DIVIDEND IS $7.00 PER SHARE AND TOTALS $105,000.00.  THIS
AMOUNT HAS BEEN PAID DIRECTLY TO RESPONDENT'S STOCKHOLDERS EVERY YEAR
SINCE 1864 - BY CHICAGO & ALTON RAILROAD CO. UNTIL ACQUISITION OF THE
PROPERTY IN 1931 BY THE ALTON RAILROAD CO., AND SINCE THEN BY THE
LATTER COMPANY.  THE DISPUTE HERE IS OVER FEDERAL INCOME TAXES FOR THE
YEARS 1931, 1932, 1933 AND 1934.  RESPONDENT, A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF ILLINOIS, FILED ITS INCOME TAX RETURN
FOR EACH OF THOSE YEARS REPORTING THE $105,000.00 OF DIVIDENDS PAID ITS
SHAREHOLDERS AS ITS INCOME.  THE RESULTING TAX WAS PAID EACH YEAR BY
THE ALTON RAILROAD CO. IN ADDITION THE LATTER PAID EACH YEAR FOR
RESPONDENT AN ADDITIONAL TAX ON THE AMOUNT OF THE INCOME TAX ON
$105,000.00, ON THE THEORY THAT THE LATTER CONSTITUTED ADDITIONAL
TAXABLE INCOME TO RESPONDENT.  RESPONDENT FILED CLAIMS FOR REFUND FOR
THE ADDITIONAL TAX PAID IN 1931, AND FOR ALL THE INCOME TAXES PAID ON
ITS BEHALF FOR THE OTHER YEARS IN QUESTION, ON THE THEORY THAT THE
INCOME ON WHICH THOSE TAXES WERE PAID WAS NOT REALIZED BY IT.  ON
REJECTION OF THOSE CLAIMS BY THE COMMISSIONER, RESPONDENT INSTITUTED
SUIT IN THE DISTRICT COURT.  THAT COURT RENDERED JUDGMENT FOR THE
PETITIONER.  THE CIRCUIT COURT OF APPEALS REVERSED, ONE JUDGE
DISSENTING.  118 F.2D 174.  WE GRANTED THE PETITION FOR CERTIORARI
BECAUSE OF THE CONFLICT BETWEEN THAT DECISION AND THE GOVERNING
PRINCIPLES OF GOLD & STOCK TELEGRAPH CO. V. COMMISSIONER, 83 F.2D 465,
UNITED STATES V. NORTHWESTERN TELEGRAPH CO., 83 F.2D 468, AND PACIFIC &
ATLANTIC TELEGRAPH CO. V. COMMISSIONER, 83 F.2D 469, DECIDED BY THE
CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

RESPONDENT URGES, AND THE COURT BELOW HELD, THAT THIS SO-CALLED LEASE
IN PERPETUITY WITHOUT A DEFEASANCE CLAUSE DIVESTED RESPONDENT OF ALL
RIGHT, TITLE AND INTEREST IN THE PROPERTY AND VESTED A FULL AND
INDEFEASIBLE TITLE IN THE GRANTEE.  SEE HUCK V. CHICAGO & ALTON R. CO.,
86 ILL. 352, 354-355; CHICAGO, B. & Q.R. CO. V. BOYD, 118 ILL. 73, 7
N.E. 487.  RESPONDENT ALSO ARGUES THAT THE INDENTURE OF 1864 VESTED ALL
RIGHTS TO PAYMENT OF DIVIDENDS IN ITS STOCKHOLDERS AND DIVESTED IT OF
ANY RIGHT TO, OR CONTROL OVER, SUCH PAYMENTS.  RESPONDENT THEREFORE
CONTENDS THAT A CORPORATION WHICH DOES NOT OWN OR CONTROL PROPERTY AND
HAS NO RIGHT TO, OR CONTROL OVER, ANY INCOME FROM THE PROPERTY CANNOT
BE IN RECEIPT OF INCOME, CONSTRUCTIVELY OR OTHERWISE. 

SUCH CONSIDERATIONS DO NOT DISPOSE OF THIS CONTROVERSY.  IN LUCAS V.
EARL, 281 U.S. 111, THIS COURT HELD THAT A HUSBAND'S SALARY WAS TAXABLE
TO HIM THOUGH BY CONTRACT WITH HIS WIFE HALF OF IT VESTED IN HER WHEN
PAID.  MR. JUSTICE HOLMES SAID (PP. 114-115):  "THERE IS NO DOUBT THAT
THE STATUTE COULD TAX SALARIES TO THOSE WHO EARNED THEM AND PROVIDE
THAT THE TAX COULD NOT BE ESCAPED BY ANTICIPATORY ARRANGEMENTS AND
CONTRACTS HOWEVER SKILFULLY DEVISED TO PREVENT THE SALARY WHEN PAID
FROM VESTING EVEN FOR A SECOND IN THE MAN WHO EARNED IT.  THAT SEEMS TO
US THE IMPORT OF THE STATUTE BEFORE US AND WE THINK THAT NO DISTINCTION
CAN BE TAKEN ACCORDING TO THE MOTIVES LEADING TO THE ARRANGEMENT BY
WHICH THE FRUITS ARE ATTRIBUTED TO A DIFFERENT TREE FROM THAT ON WHICH
THEY GREW." 

PRECISELY THAT APPROACH WAS TAKEN IN ART. 70 OF TREASURY REGULATIONS
74, PROMULGATED UNDER THE REVENUE ACT OF 1928.  IT PROVIDES IN PART: 

"WHERE A CORPORATION HAS LEASED ITS PROPERTY IN CONSIDERATION THAT
THE LESSEE SHALL PAY IN LIEU OF OTHER RENTAL AN AMOUNT EQUIVALENT TO A
CERTAIN RATE OF DIVIDEND ON THE LESSOR'S CAPITAL STOCK OR THE INTEREST
ON THE LESSOR'S OUTSTANDING INDEBTEDNESS, TOGETHER WITH TAXES,
INSURANCE, OR OTHER FIXED CHARGES, SUCH PAYMENTS SHALL BE CONSIDERED
RENTAL PAYMENTS AND SHALL BE RETURNED BY THE LESSOR CORPORATION AS
INCOME, NOTWITHSTANDING THE FACT THAT THE DIVIDENDS AND INTEREST ARE
PAID BY THE LESSEE DIRECTLY TO THE SHAREHOLDERS AND BONDHOLDERS OF THE
LESSOR.  THE FACT THAT A CORPORATION HAS CONVEYED OR LET ITS PROPERTY
AND HAS PARTED WITH ITS MANAGEMENT AND CONTROL, OR HAS CEASED TO ENGAGE
IN THE BUSINESS FOR WHICH IT WAS ORIGINALLY ORGANIZED, WILL NOT RELIEVE
IT FROM LIABILITY TO THE TAX." 

THAT LONG-STANDING REGULATION  FN1  IS PLAINLY APPLICABLE HERE.  IT
COVERS VARIOUS KINDS OF CONVEYANCES AND LEASES, INCLUDING THOSE WHERE
THE GRANTOR OR LESSOR HAS PARTED WITH ALL RIGHTS OF MANAGEMENT AND
CONTROL OVER THE PROPERTY.  IF VALID, IT GOVERNS THIS CASE WHATEVER MAY
BE THE LEGAL INCIDENTS OF THE 1864 INDENTURE UNDER ILLINOIS LAW.  ITS
VALIDITY SEEMS CLEAR.  IT IS A PERMISSIBLE DEFINITION OF ONE ITEM OF
GROSS INCOME  FN2  UNDER SEC. 22(A) OF THE REVENUE ACT OF 1928, 45
STAT. 791, 797.  PAYMENTS MADE DIRECTLY TO SHAREHOLDERS BY THE LESSEE
OR TRANSFEREE OF CORPORATE PROPERTY ARE PROPERLY RECOGNIZED AS INCOME
TO THE CORPORATION BY REASON OF THE RELATIONSHIP OF A CORPORATION TO
ITS SHAREHOLDERS.  THE FACT THAT THERE IS AN ANTICIPATORY ARRANGEMENT
WHEREBY THE TAXPAYER IS NOT EVEN A CONDUIT OF THE PAYMENTS IS NO MORE
SIGNIFICANT IN THIS TYPE OF CASE THAN IT WAS IN LUCAS V. EARL, SUPRA. 

THE RELATIONSHIP BETWEEN RESPONDENT AND ITS SHAREHOLDERS IS AN
ABIDING ONE.  THEY OBTAIN THE DIVIDEND PAYMENTS BECAUSE OF THEIR STATUS
AS SHAREHOLDERS.  ALL QUESTIONS OF THE RIGHTS OF CREDITORS ASIDE, THERE
CAN BE NO DOUBT THAT A CORPORATION MAY NORMALLY DISTRIBUTE ITS ASSETS
AMONG ITS STOCKHOLDERS.  WHEN IT UNDERTAKES TO DO SO, ITS ACT IS
NONETHELESS A CORPORATE ACT THOUGH ITS SHAREHOLDERS RECEIVE NEW
CONTRACTUAL RIGHTS ENFORCEABLE BY THEM ALONE AGAINST THE TRANSFEREE. 
THAT IS TO SAY, THEIR RIGHTS TO RECEIVE THE PROCEEDS ON THE DISPOSAL OF
CORPORATE ASSETS ARE STRICTLY DERIVATIVE IN ORIGIN.  THE FACT THAT THE
CONSIDERATION IS MADE DISTRIBUTABLE TO THEM DIRECTLY OVER A LONG PERIOD
OF TIME RATHER THAN IN ONE LUMP PAYMENT DOES NOT ALTER THE CHARACTER OF
THOSE RIGHTS.  IN EACH CASE THEIR CLAIMS TO THE PROCEEDS FLOW FROM THE
CORPORATION AND ARE MEASURED BY THE STAKE WHICH THEY HAVE IN IT.  FOR
THE RENTAL OR PURCHASE PAYMENTS FOR THE PROPERTY CONVEYED BY RESPONDENT
COULD NOT LAWFULLY BE PAID TO ANOTHER WITHOUT ITS AUTHORITY; AND IT
COULD NOT LAWFULLY DISPOSE OF THEM TO OTHERS WITHOUT THE CONSENT OF ITS
SHAREHOLDERS.  CF. RAYBESTOS-MANHATTAN, INC. V. UNITED STATES, 296 U.S.
60.  THE FACT THAT THE CORPORATION MAY REMAIN IN EXISTENCE ONLY TO
MAINTAIN A STOCK TRANSFER BOOK IS IMMATERIAL.  THE UMBILICAL CORD
BETWEEN IT AND ITS SHAREHOLDERS HAS NOT BEEN CUT.  THE DISTRIBUTION
MADE IS IN PERFORMANCE OF THE OBLIGATION OWED BY THE CORPORATION TO
THEM.  FOR THESE REASONS THE REGULATION IN QUESTION MERELY CONFORMS TO
ACCEPTED LEGAL THEORY.  THE CONCLUSION THAT THE DIVIDEND PAYMENTS MADE
TO RESPONDENT'S STOCKHOLDERS WERE INCOME REALIZED BY IT LIKEWISE MARKS
NO INNOVATION IN INCOME TAX LAW.  THAT IS INDICATED NOT ONLY BY LUCAS
V. EARL, SUPRA, BUT ALSO BY THOSE CASES WHICH HOLD THAT, "INCOME IS NOT
ANY THE LESS TAXABLE INCOME OF THE TAXPAYER BECAUSE BY HIS COMMAND IT
IS PAID DIRECTLY TO ANOTHER IN PERFORMANCE OF THE TAXPAYER'S OBLIGATION
TO THAT OTHER."  RAYBESTOS-MANHATTAN, INC. V. UNITED STATES, SUPRA, P.
64, AND CASES CITED.  THE REACH OF THE INCOME TAX LAW IS NOT TO BE
DELIMITED BY TECHNICAL REFINEMENTS OR MERE FORMALISM.  HELVERING V.
CLIFFORD, 309 U.S. 331. 

SINCE THE DIVIDEND PAYMENTS MADE TO RESPONDENT'S STOCKHOLDERS WERE
INCOME REALIZED BY IT, THE FEDERAL INCOME TAX ON THOSE SUMS WHICH WAS
PAID BY THE ALTON RAILROAD CO. WAS LIKEWISE INCOME TAXABLE TO
RESPONDENT.  OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716; UNITED
STATES V. BOSTON & MAINE R. CO., 279 U.S. 732. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  THIS REGULATION DATES FROM ART. 80, TREASURY REGULATIONS 33(1914
ED.).  AND SEE ART. 102, TREASURY REGULATIONS 33(1918 ED.).  PROVISIONS
SIMILAR TO THOSE QUOTED IN THE TEXT ARE CONTAINED IN ART. 70, TREASURY
REGULATIONS 77, PROMULGATED UNDER THE REVENUE ACT OF 1932 AND IN ART.
22(A)-20 OF TREASURY REGULATIONS 86, PROMULGATED UNDER THE REVENUE ACT
OF 1934. 

FN2  LIKE DEFINITIONS OF GROSS INCOME ARE CONTAINED IN SEC. 22(A) OF
THE REVENUE ACT OF 1932(47 STAT. 169, 178) AND IN SEC. 22(A) OF THE
REVENUE ACT OF 1934.  48 STAT. 680, 686. 

MR. JUSTICE ROBERTS DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :























U.S. V. ROSENBLUM TRUCK LINES, 315 U.S. 50 


NO. 52.  ARGUED DECEMBER 16, 17, 1941.  - DECIDED JANUARY 19, 1942.  -
36 F.SUPP.  467, REVERSED. 


1.  A TRUCKMAN WHO, ON JULY 1, 1935, AND UNTIL FEBRUARY 1936, WAS
ENGAGED IN HAULING EXCLUSIVELY FOR COMMON CARRIERS UNDER AGREEMENTS
WITH THEM, HELPING THEM TO MOVE THEIR OVERFLOW FREIGHT, AND WHO WAS NOT
SERVING THE PUBLIC DIRECTLY BUT ONLY PERFORMING PART OF THE COMPLETE
COMMON CARRIER SERVICE WHICH THOSE COMMON CARRIERS OFFERED TO THE
PUBLIC, IS NOT ENTITLED TO A PERMIT AS A CONTRACT CARRIER UNDER THE
"GRANDFATHER" CLAUSE OF SEC. 209(A) OF THE MOTOR CARRIER ACT OF 1935. 
P. 54. 

2.  BY THE ACT, CONGRESS DID NOT INTEND TO GRANT MULTIPLE
"GRANDFATHER" RIGHTS ON THE BASIS OF A SINGLE TRANSPORTATION SERVICE. 
P. 54. 

3.  WHERE THE LITERAL MEANING OF WORDS IN A STATUTE PRODUCES AN
UNREASONABLE RESULT PLAINLY AT VARIANCE WITH THE POLICY OF THE
LEGISLATION, THE LEGISLATIVE PURPOSE WILL BE FOLLOWED.  P. 55. 

4.  THE FACT THAT "CARRIERS" WITHIN THE MEANING OF THE ACT NEED NOT
DEAL DIRECTLY WITH THE PUBLIC BUT MAY ACT THROUGH BROKERS, DOES NOT
AFFECT THE CONCLUSION IN THIS CASE.  P. 56. 

UNITED STATES ET AL. V. N.E. ROSENBLUM TRUCK LINES, INC.* 

*TOGETHER WITH NO. 53, UNITED STATES ET AL. V. MARGOLIES, DOING
BUSINESS AS MANHATTAN TRUCK LINES, ALSO ON APPEAL FROM THE DISTRICT
COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF MISSOURI. 

APPEALS FROM DECREES OF A DISTRICT COURT OF THREE JUDGES WHICH, IN
TWO CASES HEARD AND DECIDED TOGETHER, SET ASIDE ORDERS OF THE
INTERSTATE COMMERCE COMMISSION DENYING APPLICATIONS FOR PERMITS UNDER
THE MOTOR CARRIER ACT OF 1935. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THESE ARE DIRECT APPEALS BY THE UNITED STATES AND THE INTERSTATE
COMMERCE COMMISSION FROM FINAL DECREES OF A SPECIALLY CONSTITUTED THREE
JUDGE DISTRICT COURT,  FN1  WHICH SUSTAINED APPELLEES' SEPARATE
PETITIONS TO ANNUL, SET ASIDE AND ENJOIN AN ORDER OF THE COMMISSION
ENTERED JULY 1, 1940, DENYING APPELLEES' SEPARATE APPLICATIONS UNDER
THE SO-CALLED "GRANDFATHER CLAUSE" OF SEC. 209(A) OF THE MOTOR CARRIER
ACT OF 1935  FN2  (49 STAT. 543, 552, 49 U.S.C. SEC. 309(A)), FOR A
PERMIT AUTHORIZING OPERATIONS AS A CONTRACT CARRIER BY MOTOR VEHICLE. 

THE EVIDENTIARY FACTS ARE NOT SERIOUSLY DISPUTED.  PRIOR TO THE
CRITICAL DATE, JULY 1, 1935, AND UNTIL FEBRUARY 1936, APPELLEES AND
THEIR PREDECESSORS IN INTEREST  FN3  HAULED ONLY FOR COMMON CARRIERS BY
MOTOR VEHICLE, AND IN EACH CASE PRINCIPALLY FOR A SINGLE COMMON
CARRIER, BETWEEN ST. LOUIS AND CHICAGO, FOR WHICH THEY WERE PAID A LUMP
SUM ON DOCK TO DOCK MOVEMENTS.  APPELLEES PROTECTED THEIR EQUIPMENT BY
CARRYING FIRE, THEFT AND COLLISION INSURANCE IN THEIR OWN NAMES.  THEY
ALSO PAID THE OPERATING AND MAINTENANCE COSTS.  CARGO, PUBLIC
LIABILITY, PROPERTYDAMAGE, AND SIMILAR TYPES OF INSURANCE FOR THE
PROTECTION OF THE GENERAL AND THE SHIPPING PUBLIC, WERE TAKEN OUT BY
THE COMMON CARRIERS AND IN SOME INSTANCES CHARGED TO THE APPELLEES. 
THEY OCCASIONALLY PAID SMALL CARGO DAMAGE CLAIMS NOT COVERED BY
INSURANCE.  THE DRIVERS OF APPELLEES' TRUCKS WERE THEIR EMPLOYEES.  THE
SPECIFICITY WITH WHICH THE COMMON CARRIERS DIRECTED THE ROUTES TO BE
FOLLOWED IS IN SOME DOUBT, BUT THE DRIVERS WERE REQUESTED TO "SIGN IN"
AT CERTAIN REGISTRATION STATIONS EN ROUTE. 

THE GREATER PORTION OF THE TRAFFIC OF THE COMMON CARRIERS WHICH
APPELLEES SERVED WAS CARRIED IN THE CARRIERS' OWN VEHICLES.  APPELLEES'
EQUIPMENT WAS SECURED ON ORAL ARRANGEMENTS TO HANDLE OVERFLOW FREIGHT. 
THE FREIGHT SO HANDLED WAS ALWAYS SOLICITED BY THE COMMON CARRIER,
ACCUMULATED AT ITS TERMINAL, LOADED AND UNLOADED BY ITS EMPLOYEES, AND
MOVED FROM CONSIGNOR TO CONSIGNEE ON THAT CARRIER'S WAY BILLS.  THE
RECORD IS SILENT AS TO WHETHER APPELLEES' TRUCKS BORE THE NAME OF THE
COMMON CARRIER ON WHOSE BEHALF THEY WERE OPERATED. 

AFTER FEBRUARY 1936 APPELLEES CEASED HAULING FOR COMMON CARRIERS BY
MOTOR VEHICLE AND BEGAN HAULING FOR INDIVIDUAL SHIPPERS IN THEIR OWN
RIGHT. 

THE COMMISSION FOUND THAT APPELLEES' EQUIPMENT PRIOR TO FEBRUARY 1936
"WAS OPERATED SOLELY UNDER THE DIRECTION AND CONTROL OF THE COMMON
CARRIERS AND UNDER THE LATTER'S RESPONSIBILITY TO THE GENERAL PUBLIC
AND TO THE SHIPPERS" AND CONCLUDED THAT "AS TO SUCH OPERATIONS
APPLICANTS (APPELLEES) DO NOT QUALIFY AS CARRIERS BY MOTOR VEHICLE
WITHIN THE MEANING OF THE ACT AND ARE CONSEQUENTLY NOT ENTITLED TO A
CERTIFICATE OR A PERMIT UNDER THE 'GRANDFATHER' CLAUSE OF SECTION
206(A) OR 209(A) THEREOF."  FN4 

THE COURT BELOW SET ASIDE THE COMMISSION'S ORDER, CONCLUDING THAT
APPELLEES WERE IN "BONA FIDE OPERATION AS (A) CONTRACT (CARRIERS) IN
INTERSTATE COMMERCE ON JULY 1, 1935" AND "IN SO OPERATING ASSUMED
CONTROL, MANAGEMENT AND RESPONSIBILITY FOR THE HAULING OF CARGO" AND
THAT "THERE IS NO SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT THE
ORDER ENTERED."  FN5 

THE POINT OF DIVERGENCE BETWEEN THE COMMISSION AND THE COURT BELOW
SEEMS TO HAVE BEEN WHETHER THE EVIDENTIARY FACTS SUPPORTED THE
COMMISSION'S ULTIMATE CONCLUSION THAT APPELLEES OPERATED SOLELY UNDER
THE CONTROL OF THE COMMON CARRIERS.  BECAUSE OF OUR VIEWS AS TO THE
PROPER CONSTRUCTION OF THE ACT, WE NEED NOT DETERMINE WHETHER
SUBSTANTIAL EVIDENCE SUPPORTS THAT CONCLUSION OF THE COMMISSION.  IN
ANY EVENT THE EVIDENCE CLEARLY SHOWS THAT ON THE CRITICAL DATE, AND
FROM THEN UNTIL FEBRUARY 1936, APPELLEES HELPED THE COMMON CARRIERS
MOVE THEIR OVERFLOW FREIGHT AND, AS TO EACH JOB, WERE AN INTEGRAL PART
OF A SINGLE COMMON CARRIER SERVICE OFFERED TO THE PUBLIC BY THE COMMON
CARRIER FOR WHOM THEY HAULED. 

THE QUESTION HERE, AS IN ANY PROBLEM OF STATUTORY CONSTRUCTION, IS
THE INTENTION OF THE ENACTING BODY.  CONGRESS HAS SET THAT FORTH FOR US
BROADLY IN THE DECLARATION OF POLICY  FN6  - IN ESSENCE IT IS THE
REGULATION OF TRANSPORTATION BY MOTOR CARRIERS IN THE PUBLIC INTEREST
SO AS TO ACHIEVE ADEQUATE, EFFICIENT AND ECONOMICAL SERVICE.  TO
IMPLEMENT THAT POLICY CONGRESS FORBADE COMMON CARRIERS BY MOTOR VEHICLE
TO OPERATE IN INTERSTATE COMMERCE WITHOUT SECURING A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY FROM THE COMMISSION,  FN7  AND
REQUIRED CONTRACT CARRIERS TO SECURE A PERMIT FROM THAT BODY.  FN8
THOSE CARRIERS ENGAGED IN EITHER OF SUCH OPERATIONS ON THE RESPECTIVE
CRITICAL DATES AND CONTINUOUSLY THEREAFTER WERE TO BE GIVEN THE
REQUISITE CERTIFICATE OR PERMIT AS OF RIGHT UNDER THE "GRANDFATHER"
PROVISOS OF SECS. 206(A) AND 209(A).  WE THINK IT CLEAR THAT CONGRESS
DID NOT INTEND TO GRANT MULTIPLE "GRANDFATHER" RIGHTS ON THE BASIS OF A
SINGLE TRANSPORTATION SERVICE.  PRESUMABLY THE COMMON CARRIERS WHICH
APPELLEES SERVED WERE ENTITLED TO COMMON CARRIER "GRANDFATHER" RIGHTS
OVER THE ENTIRE LINE.  IT WAS THE COMMON CARRIERS WHO OFFERED THE
COMPLETE TRANSPORTATION SERVICE TO THE GENERAL PUBLIC AND THE SHIPPER. 
TO HOLD THAT APPELLEES, WHO PERFORMED PART OF THAT COMPLETE
TRANSPORTATION SERVICE FOR THOSE COMMON CARRIERS UNDER AGREEMENTS WITH
THEM, ACQUIRED CONTRACT CARRIER "GRANDFATHER" RIGHTS OVER THE SAME LINE
ENTITLING THEM ALSO TO SERVE THE PUBLIC IS TO ASCRIBE TO CONGRESS AN
INTENT INCOMPATIBLE WITH ITS PURPOSE OF REGULATION.  THE RESULT WOULD
BE TO CREATE IN THIS CASE TWO SERVICES OFFERING TRANSPORTATION TO THE
PUBLIC WHEN THERE HAD BEEN ONLY ONE ON THE "GRANDFATHER" DATE, WITHOUT
ALLOWING THE COMMISSION TO DETERMINE IF THE ADDITIONAL SERVICE WAS IN
THE PUBLIC INTEREST.  AND, INSTANCES CAN READILY BE IMAGINED WHERE A
SINGLE COMMON CARRIER MIGHT UTILIZE THE SERVICES OF SEVERAL OPERATORS
SUCH AS APPELLEES.  AUTOMATICALLY TO GRANT CONTRACT CARRIER RIGHTS TO
SUCH OPERATORS MIGHT RESULT IN SUCH A WHOLESALE DISTRIBUTION OF PERMITS
AS WOULD DEFEAT THE VERY PURPOSE OF FEDERAL REGULATION. 

ALSO INDICATIVE OF THE CONGRESSIONAL INTENT NOT TO CONFER CONTRACT
CARRIER "GRANDFATHER" RIGHTS ON OPERATORS, SUCH AS APPELLEES, WHO, ON
THE CRITICAL DATE, WERE NOT SERVING THE PUBLIC DIRECTLY BUT WERE
INSTRUMENTS PERFORMING PART OF A COMMON CARRIER SERVICE, IS THE FACT
THAT THERE WOULD SEEM TO BE NO REASON TO APPLY TO THEM THE REGULATORY
PROVISIONS OF THE ACT GENERALLY APPLICABLE TO CONTRACT CARRIERS, SUCH
AS THE REQUIREMENT THAT THEY SHOULD SECURE A PERMIT ONLY AFTER A
SHOWING THAT THEIR OPERATIONS ARE "CONSISTENT WITH THE PUBLIC INTEREST"
(SEC. 209(B)), OR THAT THEY SHOULD FILE SCHEDULES OF THEIR MINIMUM
RATES (SEC. 218(A)), OR THAT THE COMMISSION SHOULD PRESCRIBE THE
MINIMUM RATES (SEC. 218(B)).  THE ACT CLEARLY CONTEMPLATES THAT
CONTRACT AND COMMON CARRIERS WILL OFFER COMPETING TYPES OF SERVICE, FOR
SEC. 210 PROHIBITS ANY PERSON FROM SIMULTANEOUSLY HOLDING A CERTIFICATE
AND A PERMIT FOR THE SAME ROUTE OR TERRITORY UNLESS THE COMMISSION
FINDS THAT SUCH IS IN THE PUBLIC INTEREST, AND SEC. 218(B) ENJOINS THE
COMMISSION, IN PRESCRIBING MINIMUM RATES FOR CONTRACT CARRIERS, TO
"GIVE NO ADVANTAGE OR PREFERENCE TO ANY SUCH CARRIER IN COMPETITION
WITH ANY COMMON CARRIER BY MOTOR VEHICLE SUBJECT TO THIS PART."  THE
DECLARATION OF POLICY IN SEC. 202(A) WHICH STRESSES THE AVOIDANCE OF
DESTRUCTIVE AND UNFAIR COMPETITION IS REFERRED TO IN THE SECTIONS
DEALING WITH CONTRACT CARRIERS.  FN9 

APPELLEES' CONTENTION THAT THEIR ACTIVITIES ON THE CRITICAL DATE FALL
WITHIN THE LITERAL LANGUAGE OF THE DEFINITION OF "CONTRACT CARRIER" IN
FORCE ON THE DATE OF THE ORDER  FN10  AND THAT THEY ARE THEREFORE
ENTITLED TO CONTRACT CARRIER "GRANDFATHER" RIGHTS IS WITHOUT MERIT.  A
HOLDING THAT THE ACTIVITIES OF APPELLEES PRIOR TO FEBRUARY 1936 WERE
THOSE OF CONTRACT CARRIERS WOULD NOT ACCORD WITH THE INTENT OF
CONGRESS.  WHERE THE PLAIN MEANING OF WORDS USED IN A STATUTE PRODUCES
AN UNREASONABLE RESULT, "PLAINLY AT VARIANCE WITH THE POLICY OF THE
LEGISLATION AS A WHOLE," WE MAY FOLLOW THE PURPOSE OF THE STATUTE
RATHER THAN THE LITERAL WORDS.  UNITED STATES V. AMERICAN TRUCKING
ASSOCIATIONS, 310 U.S. 534, 543, AND CASES CITED.  WE CONCLUDE THAT THE
COMMISSION RIGHTLY DETERMINED THAT APPELLEES WERE NOT CONTRACT CARRIERS
WITHIN THE MEANING OF THE ACT PRIOR TO FEBRUARY 1936. 

APPELLEES MAKE NO CONTENTION THAT THEY WERE COMMON CARRIERS DURING
THE PERIOD IN QUESTION, AND WE ARE CLEAR THAT THEY WERE NOT, FOR THE
CONGRESSIONAL INTENT TO AVOID MULTIPLE "GRANDFATHER" RIGHTS ON THE
BASIS OF A SINGLE TRANSPORTATION SERVICE IS EQUALLY APPLICABLE TO
PREVENT APPELLEES FROM BEING CONSIDERED EITHER AS CONTRACT OR AS COMMON
CARRIERS WITHIN THE MEANING OF THE ACT.  THE REASONABLENESS OF THIS
INTERPRETATION OF THE ACT IS APPARENT.  SINCE APPELLEES' OPERATIONS,
NAMELY, SERVING THE COMMON CARRIERS, ON THE CRITICAL DATE DID NOT MAKE
THEM "CARRIERS" WITHIN THE MEANING OF THE ACT, AND THUS SUBJECT TO
REGULATION UNDER IT, IT FOLLOWS THAT THEY ARE FREE TO ENGAGE IN SUCH
OPERATIONS WITHOUT SECURING THE AUTHORIZATION OF THE COMMISSION.  FN11
BUT THOSE OPERATIONS CANNOT BE THE BASIS FOR APPELLEES' AUTOMATICALLY
SECURING PERMITS TO SERVE THE PUBLIC IN THEIR OWN RIGHT, A SERVICE
WHICH THEY WERE NOT PERFORMING ON THE "GRANDFATHER" DATE. 

THE FACT THAT CARRIERS WITHIN THE MEANING OF THE ACT NEED NOT DEAL
DIRECTLY WITH THE PUBLIC BUT MAY ACT THROUGH BROKERS  FN12  IN NO WISE
AFFECTS OUR CONCLUSION.  AS WE HAVE SEEN, CONGRESS DID NOT INTEND TO
CONFER MULTIPLE "GRANDFATHER" RIGHTS ON THE BASIS OF A SINGLE
TRANSPORTATION SERVICE TO THE PUBLIC.  THAT DIFFICULTY ARISES ONLY WHEN
AN OPERATOR UNDERTAKES TO SERVE A CARRIER WHO IS SERVING THE PUBLIC. 
IT IS NOT PRESENT WHEN A CARRIER DEALS THROUGH A BROKER.  REVERSED. 

FN1  CONVENED PURSUANT TO THE URGENT DEFICIENCIES ACT OF 1913(38
STAT. 220, 28 U.S.C. SECS. 47 AND 47(A)) AND SEC. 205(H) OF THE MOTOR
CARRIER ACT OF 1935, REARRANGED BY THE TRANSPORTATION ACT OF 1940, 54
STAT. 899, AS SEC. 205(G) OF PART II OF THE INTERSTATE COMMERCE ACT. 

FN2  THE MOTOR CARRIER ACT OF 1935 IS NOW DESIGNATED AS PART II OF
THE INTERSTATE COMMERCE ACT.  54 STAT. 919. 

FN3  IN BOTH OF THESE CASES IT WAS THE APPELLEE'S PREDECESSOR IN
INTEREST WHO WAS OPERATING ON JULY 1, 1935.  THE PREDECESSOR OF
APPELLEE IN NO. 52 WAS ROSENBLUM THE INDIVIDUAL, AND THE PREDECESSOR OF
APPELLEE IN NO. 53 WAS AN INDIVIDUAL, BAULOS. 

FN4  24 M.C.C. 121, 125-126. 

FN5  36 F.SUPP.  467. 

FN6  SEC. 202(A), 49 U.S.C. SEC. 302(A). 

FN7 SEC. 206(A), 49 U.S.C. SEC. 306(A). 

FN8  SEC. 209(A), 49 U.S.C. SEC. 309(A). 

FN9  SEC. 209(B), 49 U.S.C. SEC. 309(B).  SEC. 218(B), 49 U.S.C. SEC.
318(B). 

THE COMMISSION HAS TAKEN THE POSITION THAT WHILE THERE MAY BE
DESTRUCTIVE OR UNFAIR COMPETITION WITH COMMON CARRIERS WHEN TRUCK
OPERATORS CONTRACT TO DO WORK IN CONNECTION WITH TRANSPORTATION FOR
COMMON CARRIERS WHICH SERVE SHIPPERS DIRECTLY, "IT IS NOT THE TRUCK
OPERATOR WHO CARRIES IT ON.  RATHER IT IS THE CARRIER FOR WHICH HE
WORKS,  ...  "  SCOTT BROS. INC., 4 M.C.C. 551, 559. 

FN10  SEC. 203(A)(15).  THE TERM "CONTRACT CARRIER BY MOTOR VEHICLE"
MEANS ANY PERSON, NOT INCLUDED UNDER PARAGRAPH (14) OF THIS SECTION,
WHO OR WHICH, UNDER SPECIAL AND INDIVIDUAL CONTRACTS OR AGREEMENTS, AND
WHETHER DIRECTLY OR BY A LEASE OR ANY OTHER ARRANGEMENT, TRANSPORTS
PASSENGERS OR PROPERTY IN INTERSTATE OR FOREIGN COMMERCE BY MOTOR
VEHICLE FOR COMPENSATION.  (THE TRANSPORTATION ACT OF 1940, 54 STAT.
899, AMENDED THIS DEFINITION.) 

FN11  THE COMMISSION HAS SO HELD.  DIXON, 21 M.C.C. 617; SMYTHE, 22
M.C.C. 726. 

FN12  SECTION 203(18), 49 U.S.C. SEC. 303(18), DEFINES "BROKER"
SUBSTANTIALLY AS ONE WHO SELLS OR OFFERS FOR SALE ANY TRANSPORTATION. 
LICENSED AND THAT THE CARRIERS THEY EMPLOY HAVE EITHER A CERTIFICATE OR
A PERMIT ISSUED UNDER THE ACT. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 
..END :



















LUBETICH V. UNITED STATES, 315 U.S. 57 


NO. 322.  ARGUED DECEMBER 17, 1941.  - DECIDED JANUARY 19, 1942.  - 39
F.SUPP.  780, AFFIRMED. 


1.  DECIDED UPON THE AUTHORITY OF UNITED STATES V. ROSENBLUM TRUCK
LINES AND UNITED STATES V. MARGOLIES, ANTE, P. 50.  P. 59. 

2.  THAT THE APPLICATION WAS FOR EITHER A COMMON CARRIER CERTIFICATE
OR A CONTRACT CARRIER PERMIT, RATHER THAN FOR ONLY A CONTRACT CARRIER
PERMIT, DOES NOT DISTINGUISH THIS CASE FROM THE ROSENBLUM AND MARGOLIES
CASES.  P. 59. 

3.  THE COMMISSION'S ORDER DENYING "GRANDFATHER" RIGHTS TO THE
APPLICANT IN THIS CASE, IS NOT VITIATED BY ABSENCE OF FINDINGS AS TO
WHETHER THE COMMON CARRIER WITH WHOM THE APPLICANT'S ARRANGEMENTS FOR
HAULING WERE MADE WAS ACTING AS A BROKER DURING THE PERIOD IN QUESTION
AND AS TO WHETHER THE APPLICANT'S NAME WAS CARRIED ON HIS EQUIPMENT. 
FINDINGS ON THESE TWO POINTS WERE NOT "QUASI JURISDICTIONAL."  P. 59. 

LUBETICH, DOING BUSINESS AS PACIFIC REFRIGERATED MOTOR LINE, V. UNITED
STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF WASHINGTON. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DISMISSING A
PETITION TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION
UNDER THE MOTOR CARRIER ACT OF 1935. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO UNITED STATES V. N.E. ROSENBLUM TRUCK
LINES, INC., AND UNITED STATES V. MARGOLIES, ANTE, P. 50.  IT IS A
DIRECT APPEAL FROM THE FINAL DECREE OF A SPECIALLY CONSTITUTED THREE
JUDGE DISTRICT COURT  FN1  DISMISSING APPELLANT'S PETITION TO SET ASIDE
AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DENYING APPELLANT'S
APPLICATION UNDER THE "GRANDFATHER" CLAUSES OF SECS. 206(A) AND 209(A)
OF THE MOTOR CARRIER ACT OF 1935  FN2  FOR OPERATING AUTHORITY AS A
"COMMON" OR "CONTRACT" CARRIER BY MOTOR VEHICLE. 

THE COMMISSION'S FINDINGS  FN3  SHOW THAT APPELLANT'S METHOD OF
OPERATIONS WAS SUBSTANTIALLY THE SAME AS THAT OF APPELLEES IN THE
ROSENBLUM AND THE MARGOLIES CASES.  APPELLANT OPERATED BETWEEN LOS
ANGELES AND SEATTLE AND HELD PERMITS FROM THE STATES OF CALIFORNIA,
OREGON, AND WASHINGTON.  BETWEEN JUNE 1935 AND JANUARY 1938 MOST, IF
NOT ALL, OF THE TRAFFIC HANDLED BY APPELLANT WAS SOLICITED AND BILLED
BY OTHER MOTOR CARRIERS AND MOVED IN APPELLANT'S VEHICLES ONLY BETWEEN
THE TERMINALS OF THOSE OTHER CARRIERS.  FROM APRIL 1937 UNTIL JANUARY
1938 APPELLANT HAULED EXCLUSIVELY FOR A SINGLE COMMON CARRIER,
HENDRICKS REFRIGERATED TRUCK LINES, INC. THE GOODS MOVED ON HENDRICKS'
BILLS OF LADING AND ITS TARIFF RATES WERE APPLIED.  APPELLANT REQUESTED
LOADING INSTRUCTIONS FROM, AND REPORTED LOADINGS TO, HENDRICKS. 
APPELLANT RECEIVED THE TOTAL REVENUE LESS TEN PERCENT ON SOUTHBOUND
LOADS AND THE TOTAL REVENUE ON NORTHBOUND LOADS.  ON "EXPRESS" TRAFFIC
HE RECEIVED A FLAT RATE OF EIGHTY CENTS PER HUNDRED POUNDS.  SHIPPERS'
CLAIMS GENERALLY WERE PAID IN THE FIRST INSTANCE BY HENDRICKS AND THEN
CHARGED BACK TO APPELLANT. 

IN JANUARY 1938 APPELLANT ENGAGED A SOLICITOR OF HIS OWN, ESTABLISHED
TERMINALS AND APPARENTLY DISCONTINUED THE OPERATIONS PREVIOUSLY
CONDUCTED IN CONNECTION WITH OTHER CARRIERS. 

ON THE BASIS OF ITS FINDINGS THE COMMISSION CONCLUDED THAT THE
SERVICE PERFORMED "WAS NOT THE FULFILLMENT OF ENGAGEMENTS IN
CONSEQUENCE OF A HOLDING OUT TO THE GENERAL PUBLIC BUT WAS PRIMARILY
THE HAULING OF TRAFFIC FOR MOTOR COMMON CARRIERS."  FN4 

WHILE THE APPLICATION IN THE INSTANT CASE IS FOR A COMMON CARRIER
CERTIFICATE, OR, IN THE ALTERNATIVE, FOR A CONTRACT CARRIER PERMIT,
RATHER THAN FOR A CONTRACT CARRIER PERMIT AS IN UNITED STATES V. N.E.
ROSENBLUM TRUCK LINES, INC. AND UNITED STATES V. MARGOLIES, THAT
DIFFERENCE IS WITHOUT LEGAL SIGNIFICANCE.  THE QUESTION IN BOTH
SITUATIONS IS WHETHER THE APPLICANT WAS A CARRIER, EITHER COMMON OR
CONTRACT, WITHIN THE MEANING OF THE ACT, PRIOR TO JUNE 1935 AND
CONTINUOUSLY THEREAFTER TO THE DATE OF THE HEARING.  FOR THE REASONS
SET FORTH IN THE ROSENBLUM AND MARGOLIES CASES, THE DECISION BELOW MUST
BE AFFIRMED. 

WE HAVE CONSIDERED AND FOUND WITHOUT SUBSTANCE APPELLANT'S ARGUMENT
THAT FINDINGS AS TO WHETHER HENDRICKS WAS ACTING AS A BROKER DURING THE
PERIOD IN QUESTION AND AS TO WHETHER APPELLANT'S NAME WAS CARRIED ON
HIS EQUIPMENT WERE "QUASI JURISDICTIONAL" AND THAT THE ABSENCE OF
FINDINGS ON THOSE POINTS RENDERS THE ORDER VOID.  NEITHER FINDING WAS
HERE ESSENTIAL TO THE EXISTENCE OF AUTHORITY TO ENTER THE ORDER, AND
HENCE WAS NOT "QUASI JURISDICTIONAL."  CF. UNITED STATES V. BALTIMORE &
OHIO R. CO., 293 U.S. 454, 462-463; FLORIDA V. UNITED STATES, 282 U.S.
194, 214-215.  ONE OF THE FINDINGS OF THE COMMISSION, WHICH APPELLANT
MAY NOT ATTACK,  FN5  WAS THAT APPELLANT HAULED "FOR HENDRICKS, A
COMMON CARRIER BY MOTOR VEHICLE," AND THE COMMISSION WAS SATISFIED FROM
THE EVIDENCE BEFORE IT THAT HENDRICKS, AND NOT THE APPELLANT, WAS THE
CARRIER IN RESPECT TO THE OPERATIONS IN WHICH APPELLANT WAS ENGAGED. 
IT WAS THEREFORE IMMATERIAL WHETHER HENDRICKS ACTED AS A BROKER IN
CONNECTION WITH SOME OTHER OPERATIONS.  WHETHER APPELLANT'S NAME WAS ON
HIS EQUIPMENT CAN ONLY BE A FACTOR BEARING ON THE ULTIMATE ISSUE.  IT
IS IN NO SENSE "QUASI JURISDICTIONAL."  AFFIRMED. 

FN1  CONVENED PURSUANT TO THE URGENT DEFICIENCIES ACT OF 1913(38
STAT. 220, 28 U.S.C. SECS. 47 AND 47(A)) AND SEC. 205(H) OF THE MOTOR
CARRIER ACT OF 1935, REARRANGED BY THE TRANSPORTATION ACT OF 1940, 54
STAT. 899, AS SEC. 205(G) OF PART II OF THE INTERSTATE COMMERCE ACT. 

FN2  THE MOTOR CARRIER ACT OF 1935 IS NOW DESIGNATED AS PART II OF
THE INTERSTATE COMMERCE ACT.  54 STAT. 919. 

FN3  SINCE THE EVIDENCE UPON WHICH THESE FINDINGS WERE MADE IS NOT
INCLUDED IN THE RECORD BEFORE US, APPELLANT MAY NOT HERE ATTACK THEM. 
MISSISSIPPI VALLEY BARGE CO. V. UNITED STATES, 292 U.S. 282, 286, AND
CASES CITED. 

FN4  24 M.C.C. 141 AT 147, 150. 

FN5  SEE NOTE 3, ANTE. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :























GLASSER V. UNITED STATES, 315 U.S. 60 


NO. 30.  ARGUED NOVEMBER 13, 14, 1941.  - DECIDED JANUARY 19, 1942.  -
116 F.2D 690, REVERSED IN PART - AFFIRMED IN PART. 


1.  JUD.  CODE SEC. 275 PROVIDES THAT JURORS IN A FEDERAL COURT SHALL
HAVE THE QUALIFICATIONS OF JURORS IN THE HIGHEST COURT OF THE STATE. 
ACTS OF THE STATE OF ILLINOIS PROVIDING FOR JURY SERVICE BY WOMEN
BECAME EFFECTIVE BEFORE A GRAND JURY IN A FEDERAL COURT IN THAT STATE
WAS DRAWN FROM A BOX FROM WHICH THE NAMES OF WOMEN HAD BEEN EXCLUDED. 
UNDER THE STATE LEGISLATION, THE MAKING OF STATE LISTS INCLUDING WOMEN
COULD BE DELAYED FOR SOME TIME LATER.  HELD THAT THE JURY WAS NOT
ILLEGALLY CONSTITUTED, IN VIEW OF THE SHORT TIME ELAPSED SINCE THE
STATE LAW CAME IN FORCE, AND THE ABSENCE OF ANY SHOWING THAT WOMEN'S
NAMES HAD APPEARED ON THE STATE JURY LISTS IN THE COUNTIES COMPRISING
THE FEDERAL DISTRICT.  P. 64. 

2.  THE RECORD IN THIS CASE SHOWS ADEQUATELY, THOUGH INFORMALLY, THAT
THE INDICTMENT WAS RETURNED BY THE GRAND JURY IN OPEN COURT.  P. 65. 

3.  AN INDICTMENT WHICH IS SUFFICIENTLY DEFINITE TO INFORM THE
DEFENDANTS OF THE CHARGES AGAINST THEM AND SHOWS CERTAINTY TO A COMMON
INTENT, IS GOOD AGAINST DEMURRER.  P. 66. 

4.  DEPRIVING THE UNITED STATES OF LAWFUL GOVERNMENTAL FUNCTIONS BY
DISHONEST MEANS IS A "DEFRAUDING" WITHIN THE MEANING OF SEC. 37 OF THE
CRIMINAL CODE.  P. 66. 

5.  A CHARGE OF CONSPIRACY TO DEFRAUD THE UNITED STATES OF LAWFUL
GOVERNMENTAL FUNCTIONS BY BRIBERY OF A GOVERNMENT OFFICER IS DISTINCT
FROM A CHARGE OF BRIBERY OR OF CONSPIRACY TO COMMIT BRIBERY.  P. 66. 

6.  ERROR WHICH MIGHT BE OVERLOOKED AS HARMLESS WHERE THE CASE IS
STRONG AGAINST THE ACCUSED MAY BE GROUND FOR REVERSAL WHERE THE
QUESTION OF GUILT OR INNOCENCE IS CLOSE.  P. 67. 

7.  A DEFENDANT IN A CONSPIRACY CASE IS DEPRIVED OF THE ASSISTANCE OF
COUNSEL, CONTRARY TO THE SIXTH AMENDMENT, WHERE, OVER HIS OBJECTION,
THE COURT APPOINTS HIS COUNSEL TO REPRESENT ALSO A CODEFENDANT, WHERE
THIS IS DONE WITH NOTICE TO THE JUDGE THAT THEIR INTERESTS MAY BE
INCONSISTENT, AND WHERE THE COUNSEL'S DEFENSE OF THE FIRST DEFENDANT IS
LESS EFFECTIVE THAN IT MIGHT HAVE BEEN IF HE HAD REPRESENTED THAT
DEFENDANT ALONE.  P. 76. 

8.  EVERY REASONABLE PRESUMPTION IS INDULGED AGAINST A WAIVER OF
FUNDAMENTAL RIGHTS SUCH AS THE RIGHT OF THE ACCUSED TO HAVE THE FULL
AND UNTRAMMELED ASSISTANCE OF COUNSEL IN THE TRIAL OF A CRIMINAL CASE. 
P. 70. 

9.  THE FACT THAT A DEFENDANT IN A CRIMINAL CASE IS AN EXPERIENCED
LAWYER MAY BE A FACTOR IN DETERMINING WHETHER HE WAIVED HIS RIGHT TO
ASSISTANCE OF COUNSEL; BUT IT IS NOT CONCLUSIVE.  P. 70. 

10.  THE TRIAL JUDGE SHOULD PROTECT THE RIGHT OF AN ACCUSED TO HAVE
THE ASSISTANCE OF COUNSEL.  P. 71. 

11.  THE RIGHT TO HAVE THE ASSISTANCE OF COUNSEL IS TOO FUNDAMENTAL
TO BE MADE TO DEPEND UPON NICE CALCULATIONS BY COURTS OF THE DEGREE OF
PREJUDICE ARISING FROM ITS DENIAL.  P. 76. 

12.  THE DECLARATIONS OF A CONSPIRATOR ARE NOT ADMISSIBLE AGAINST AN
ALLEGED CO-CONSPIRATOR, WHO WAS NOT PRESENT WHEN THEY WERE MADE, UNLESS
THERE IS PROOF ALIUNDE CONNECTING THE LATTER WITH THE CONSPIRACY.  P.
74. 

13.  PERSONS CONVICTED AS CONSPIRATORS CAN NOT HAVE A NEW TRIAL
BECAUSE OF ERROR PREJUDICIAL TO A CO-DEFENDANT BUT NOT TO THEMSELVES. 
P. 76. 

14.  A VERDICT OF CONVICTION MUST BE SUSTAINED IF, TAKING THE VIEW
MOST FAVORABLE TO THE GOVERNMENT, THERE IS SUBSTANTIAL EVIDENCE TO
SUPPORT IT.  P. 80. 

15.  PARTICIPATION IN A CRIMINAL CONSPIRACY MAY BE INFERRED FROM
CIRCUMSTANCES.  P. 80. 

16.  DEFENDANTS IN A CRIMINAL CASE CAN NOT COMPLAIN OF ERROR IN THE
INTRODUCTION OF REPORTS AS TO WHICH, WHEN THEY WERE ADMITTED IN
EVIDENCE, THE TRIAL JUDGE INFORMED THE JURY THAT THEY WERE ADMITTED
AGAINST ANOTHER DEFENDANT ONLY.  P. 81. 

17.  A DISTRICT JUDGE CONDUCTING A JURY TRIAL IN A CRIMINAL CASE HAS
A SOUND DISCRETION TO INTERROGATE WITNESSES AND TO LIMIT THEIR
CROSSEXAMINATION.  P. 82. 

18.  ACTS OF THE TRIAL JUDGE, COMPLAINED OF AS LACKING IMPARTIALITY,
WERE NOT SUCH AS TO PREJUDICE SUBSTANTIAL RIGHTS OF DEFENDANTS.  P.
83. 

19.  ACTS OF ALLEGED MISCONDUCT OF THE PROSECUTING ATTORNEY,  - HELD
NOT SUCH AS TO CALL FOR REVERSAL OF CONVICTIONS.  P. 83. 

20.  A MOTION FOR A NEW TRIAL IN A CRIMINAL CASE UPON THE GROUND THAT
THE JURY WAS ILLEGALLY CONSTITUTED MUST BE SUPPORTED BY THE
INTRODUCTION OR OFFER OF DISTINCT EVIDENCE; A FORMAL AFFIDAVIT, IN THE
ABSENCE OF A STIPULATION THAT IT MAY BE ACCEPTED AS PROOF, IS NOT
ENOUGH, ALTHOUGH IT BE UNCONTROVERTED.  P. 87. 

GLASSER V. UNITED STATES.* 

*TOGETHER WITH NO. 31, KRETSKE V. UNITED STATES, AND NO. 32, ROTH V.
UNITED STATES, ALSO ON WRITS OF CERTIORARI, 313 U.S. 551, TO THE
CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 313 U.S. 551, IN THREE CASES, TO REVIEW A JUDGMENT
SUSTAINING CONVICTIONS FOR CONSPIRACY. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, TOGETHER WITH ANTHONY HORTON AND LOUIS KAPLAN, WERE
FOUND GUILTY UPON AN INDICTMENT CHARGING THEM WITH A CONSPIRACY TO
DEFRAUD THE UNITED STATES, UNDER SEC. 37 OF THE CRIMINAL CODE (R.S.
SEC. 5440; 18 U.S.C. SEC. 88).  FN1  JUDGMENT WAS ENTERED ON THE
VERDICT AND GLASSER, KRETSKE AND KAPLAN WERE SENTENCED TO IMPRISONMENT
FOR A TERM OF 14 MONTHS.  ROTH WAS ORDERED TO PAY A FINE OF $500, AND
HORTON WAS PLACED ON PROBATION.  ON APPEAL THE CONVICTIONS OF GLASSER,
KRETSKE AND ROTH WERE AFFIRMED.  FN2  WE BROUGHT THE CASE HERE BECAUSE
OF THE IMPORTANT CONSTITUTIONAL ISSUES INVOLVED.  313 U.S. 551. 

GLASSER WAS THE ASSISTANT UNITED STATES ATTORNEY IN CHARGE OF LIQUOR
CASES IN THE NORTHERN DISTRICT OF ILLINOIS FROM ABOUT MARCH 1935 TO
APRIL 1939.  KRETSKE WAS AN ASSISTANT UNITED STATES ATTORNEY IN THE
SAME DISTRICT FROM OCTOBER 1934 UNTIL APRIL 1937.  HE ASSISTED GLASSER
IN THE PROSECUTION OF LIQUOR CASES.  AFTER HIS RESIGNATION HE ENTERED
PRIVATE PRACTICE IN CHICAGO.  ROTH WAS AN ATTORNEY IN PRIVATE
PRACTICE.  KAPLAN WAS AN AUTOMOBILE DEALER REPUTED TO BE ENGAGED IN THE
ILLICIT ALCOHOL TRAFFIC AROUND CHICAGO.  HORTON WAS A PROFESSIONAL
BONDSMAN. 

THE INDICTMENT WAS ORIGINALLY IN TWO COUNTS, BUT ONLY THE SECOND
SURVIVES HERE, AS THE GOVERNMENT ELECTED TO PROCEED ON THAT COUNT ALONE
AT THE CLOSE OF ITS CASE.  THAT COUNT, AFTER ALLEGING THAT DURING
CERTAIN PERIODS GLASSER AND KRETSKE WERE ASSISTANT UNITED STATES
ATTORNEYS FOR THE NORTHERN DISTRICT OF ILLINOIS, EMPLOYED TO PROSECUTE
ALL DELINQUENTS FOR CRIMES AND OFFENSES COGNIZABLE UNDER THE AUTHORITY
OF THE UNITED STATES, AND MORE PARTICULARLY VIOLATIONS OF THE FEDERAL
INTERNAL REVENUE LAWS RELATING TO LIQUOR, CHARGED IN SUBSTANCE THAT THE
DEFENDANTS CONSPIRED TO "DEFRAUD THE UNITED STATES OF AND CONCERNING
ITS GOVERNMENTAL FUNCTION TO BE HONESTLY, FAITHFULLY AND DUTIFULLY
REPRESENTED IN THE COURTS OF THE UNITED STATES" IN SUCH MATTERS "FREE
FROM CORRUPTION, IMPROPER INFLUENCE, DISHONESTY, OR FRAUD."  THE MEANS
BY WHICH THE CONSPIRACY WAS TO BE ACCOMPLISHED WAS ALLEGED TO BE BY THE
DEFENDANTS' SOLICITING CERTAIN PERSONS CHARGED, OR ABOUT TO BE CHARGED,
WITH VIOLATING THE LAWS OF THE UNITED STATES, TO PROMISE OR CAUSE TO BE
PROMISED CERTAIN SUMS TO BE PAID OR PLEDGED TO THE DEFENDANTS, TO BE
USED TO CORRUPT AND INFLUENCE THE DEFENDANTS GLASSER AND KRETSKE, AND
THE DEFENDANT GLASSER ALONE, IN THE PERFORMANCE OF THEIR AND HIS
OFFICIAL DUTIES. 

ALL THE DEFENDANTS FILED A MOTION TO QUASH THE INDICTMENT ON THE
GROUND (A) THAT THE GRAND JURY WAS ILLEGALLY CONSTITUTED BECAUSE WOMEN
WERE EXCLUDED THEREFROM AND (B) THAT THE INDICTMENT WAS NOT PROPERLY
RETURNED IN OPEN COURT.  GLASSER, KRETSKE AND ROTH ALSO FILED DEMURRERS
TO THE INDICTMENT.  THE MOTION TO QUASH AND THE DEMURRERS WERE
OVERRULED, AND PETITIONERS HERE RENEW THEIR OBJECTIONS. 

ON JULY 1, 1939, TWO ACTS OF THE STATE OF ILLINOIS PROVIDING FOR
WOMEN JURORS BECAME EFFECTIVE.  FN3  SECTION 275 OF THE JUDICIAL CODE
(28 U.S.C. SEC. 411) PROVIDES IN SUBSTANCE THAT JURORS IN A FEDERAL
COURT ARE TO HAVE THE QUALIFICATIONS OF JURORS IN THE HIGHEST COURT OF
THE STATE.  PETITIONERS CONTEND THAT THE GRAND JURY, COMPOSED ENTIRELY
OF MEN, AND SUMMONED ON AUGUST 25, 1939, WAS ILLEGALLY CONSTITUTED
BECAUSE, AT THE TIME IT WAS DRAWN, ILLINOIS LAW REQUIRED STATE JURY
LISTS TO CONTAIN THE NAMES OF WOMEN.  HOWEVER, IN 17 OF THE 18 COUNTIES
COMPRISING THE NORTHERN DISTRICT OF ILLINOIS THE COUNTY BOARDS COULD
WAIT UNTIL SEPTEMBER, 1939, TO INCLUDE WOMEN ON THEIR JURY LISTS.  FN4
OF COURSE, FOR WOMEN TO SERVE AS FEDERAL JURORS IN ILLINOIS IT IS NOT
NECESSARY THAT THEIR NAMES APPEAR ON A COUNTY LIST, BUT WE ARE OF
OPINION THAT, IN VIEW OF THE SHORT TIME ELAPSING BETWEEN THE EFFECTIVE
DATE OF THE ILLINOIS ACTS AND THE SUMMONING OF THE GRAND JURY, IT WAS
NOT ERROR TO OMIT THE NAMES OF WOMEN FROM FEDERAL JURY LISTS, WHERE IT
WAS NOT SHOWN THAT WOMEN'S NAMES HAD YET APPEARED ON THE STATE JURY
LISTS. 

THE RECORD HERE ADEQUATELY DISPOSES OF PETITIONERS' CONTENTION THAT
THERE IS NO SHOWING THAT THE INDICTMENT WAS RETURNED IN OPEN COURT BY
THE GRAND JURY.  IT CONTAINS A PLACITUM IN REGULAR FORM WHICH RECITES
THE CONVENING OF A REGULAR TERM OF THE DISTRICT COURT FOR THE EASTERN
DIVISION OF THE NORTHERN DISTRICT OF ILLINOIS, "ON THE FIRST MONDAY OF
SEPTEMBER (1939)(IT BEING THE TWENTY-NINTH DAY OF SEPTEMBER THE
INDICTMENT WAS FILED)," AND DISCLOSES THE PRESENCE OF THE JUDGES OF
THAT COURT, THE MARSHAL AND THE CLERK.  THE INDICTMENT BEARS THE
NOTATION:  "A TRUE BILL, GEORGE A. HANCOCK, FOREMAN", AND THE
ENDORSEMENT:  "FILED IN OPEN COURT THIS 29TH DAY OF SEPT., A.D. 1939,
HOYT KING, CLERK."  IMMEDIATELY FOLLOWING THE INDICTMENT IN THE RECORD
IS THE MOTION-SLIP DISCHARGING THE SEPTEMBER GRAND JURY, DATED
SEPTEMBER 29, 1939, INITIALLED BY JUDGE WILKERSON AND CONTAINING:  "THE
GRAND JURY RETURN 4 INDICTMENTS IN OPEN COURT.  ADDED 10/30/39."  THE
PRESENCE OF THIS NOTATION IN THE RECORD IS MEANINGLESS UNLESS THE
INDICTMENT IN THIS CASE IS ONE OF THE FOUR MENTIONED.  THE ADDITION WAS
OBVIOUSLY MADE TO CLARIFY THE INDORSEMENT OF THE CLERK SO AS TO SHOW
CLEARLY THE RETURN BY THE GRAND JURY AND THUS AVERT THE TECHNICAL
ARGUMENT HERE ADVANCED.  WHILE A FORMAL NUNC PRO TUNC ORDER WOULD HAVE
BEEN THE MORE CORRECT PROCEDURE, ESPECIALLY SINCE A NEW TERM OF COURT
HAD BEGUN, WE DO NOT THINK THAT THIS INFORMAL CLARIFICATION OF THE
RECORD AMOUNTS TO SUCH ERROR AS REQUIRES REVERSAL.  CF. BREESE V.
UNITED STATES, 226 U.S. 1. 

THE DEMURRERS TO THE INDICTMENT WERE PROPERLY OVERRULED.  THE
INDICTMENT IS SUFFICIENTLY DEFINITE TO INFORM PETITIONERS OF THE
CHARGES AGAINST THEM.  IT SHOWS "CERTAINTY, TO A COMMON INTENT." 
WILLIAMSON V. UNITED STATES, 207 U.S. 425, 447.  THE PARTICULARITY OF
TIME, PLACE, CIRCUMSTANCES, CAUSES, ETC., IN STATING THE MANNER AND
MEANS OF EFFECTING THE OBJECT OF A CONSPIRACY, FOR WHICH PETITIONERS
CONTEND, IS NOT ESSENTIAL TO AN INDICTMENT.  CRAWFORD V. UNITED STATES,
212 U.S. 183; DEALY V. UNITED STATES, 152 U.S. 539.  SUCH SPECIFICITY
OF DETAIL FALLS RATHER WITHIN THE SCOPE OF A BILL OF PARTICULARS, WHICH
PETITIONERS REQUESTED AND RECEIVED. 

THE INDICTMENT CHARGES THAT THE UNITED STATES WAS DEFRAUDED BY
DEPRIVING IT OF ITS LAWFUL GOVERNMENTAL FUNCTIONS BY DISHONEST MEANS;
IT IS SETTLED THAT THIS IS A "DEFRAUDING" WITHIN THE MEANING OF SEC. 37
OF THE CRIMINAL CODE.  HAMMERSCHMIDT V. UNITED STATES, 265 U.S. 182. 

IT IS UNNECESSARY TO EXPLORE THE MERITS OF THE ARGUMENT THAT THE
INDICTMENT IS DEFECTIVE ON THE GROUND THAT IT CHARGES A CONSPIRACY TO
COMMIT A SUBSTANTIVE OFFENSE REQUIRING CONCERTED ACTION, NAMELY,
BRIBERY, BECAUSE, "THE INDICTMENT DOES NOT CHARGE AS A SUBSTANTIVE
OFFENSE THE GIVING OR RECEIVING OF BRIBES; NOR DOES IT CHARGE A
CONSPIRACY TO GIVE OR ACCEPT BRIBES.  IT CHARGES A CONSPIRACY TO  ...
DEFRAUD THE UNITED STATES, THE SCHEME OF RESORTING TO BRIBERY BEING
AVERRED ONLY TO BE A WAY OF CONSUMMATING THE CONSPIRACY AND WHICH, LIKE
THE USE OF A GUN TO EFFECT A CONSPIRACY TO MURDER, IS PURELY ANCILLARY
TO THE SUBSTANTIVE OFFENSE."  UNITED STATES V. MANTON, 107 F.2D 834,
839. 

PETITIONERS GLASSER AND ROTH CLAIM THAT THE EVIDENCE WAS INSUFFICIENT
TO SUPPORT THE VERDICT.  KRETSKE MAKES NO SUCH ARGUMENT BUT MERELY
CONTENDS THAT THE GOVERNMENT'S TESTIMONY WAS LARGELY THAT OF
ACCOMPLICES "TO EMPHASIZE THE INESCAPABLE CONCLUSION THAT THE EVIDENCE
AGAINST PETITIONER (KRETSKE) WAS OF A BORDERLINE CHARACTER."  SINCE WE
ARE OF OPINION THAT A NEW TRIAL MUST BE ORDERED AS TO GLASSER, WE DO
NOT AT THIS TIME FEEL THAT IT IS PROPER TO COMMENT ON THE SUFFICIENCY
OF THE EVIDENCE AGAINST GLASSER. 

ADMITTEDLY, THE CASE AGAINST GLASSER IS NOT A STRONG ONE.  THE
GOVERNMENT FRANKLY CONCEDES THAT THE CASE WITH RESPECT TO GLASSER
"DEPENDS IN LARGE PART  ...  UPON A DEVELOPMENT AND COLLOCATION OF
CIRCUMSTANCES TENDING TO SUSTAIN THE INFERENCES NECESSARY TO SUPPORT
THE VERDICT."  THIS IS SIGNIFICANT IN RELATION TO GLASSER'S CONTENTION
THAT HE WAS DEPRIVED OF THE ASSISTANCE OF COUNSEL CONTRARY TO THE SIXTH
AMENDMENT.  IN ALL CASES THE CONSTITUTIONAL SAFEGUARDS ARE TO BE
JEALOUSLY PRESERVED FOR THE BENEFIT OF THE ACCUSED, BUT ESPECIALLY IS
THIS TRUE WHERE THE SCALES OF JUSTICE MAY BE DELICATELY POISED BETWEEN
GUILT AND INNOCENCE.  THEN ERROR, WHICH UNDER SOME CIRCUMSTANCES WOULD
NOT BE GROUND FOR REVERSAL, CANNOT BE BRUSHED ASIDE AS IMMATERIAL,
SINCE THERE IS A REAL CHANCE THAT IT MIGHT HAVE PROVIDED THE SLIGHT
IMPETUS WHICH SWUNG THE SCALES TOWARD GUILT. 

ON NOVEMBER 1, 1939, GEORGE CALLAGHAN ENTERED THE APPEARANCE OF
HIMSELF AND GLASSER AS ATTORNEYS FOR GLASSER.  ON JANUARY 29, 1940,
WILLIAM SCOTT STEWART ENTERED HIS APPEARANCE AS ASSOCIATE COUNSEL FOR
GLASSER.  "HARRINGTON & MCDONNELL" HAD ENTERED AN APPEARANCE FOR
KRETSKE.  ON FEBRUARY 5, 1940, THE DAY SET FOR TRIAL, HARRINGTON ASKED
FOR A CONTINUANCE.  THE MOTION WAS OVERRULED AND MCDONNELL WAS
APPOINTED KRETSKE'S ATTORNEY.  ON FEBRUARY 6, MCDONNELL INFORMED THE
COURT THAT KRETSKE DID NOT WISH TO BE REPRESENTED BY HIM.  THE COURT
THEN ASKED IF STEWART COULD ACT AS KRETSKE'S ATTORNEY.  THE FOLLOWING
DISCUSSION THEN TOOK PLACE: 

"MR. STEWART:  MAY I MAKE THIS STATEMENT ABOUT THAT, JUDGE?  WE WERE
TALKING ABOUT IT - WE WERE ALL TRYING TO GET ALONG TOGETHER.  I FILED
AN AFFIDAVIT, OR I DID ON THE BEHALF OF MR. GLASSER POINTING OUT SOME
LITTLE INCONSISTENCY IN THE DEFENSE, AND THE MAIN PART OF IT IS THIS:
THERE WILL BE CONVERSATIONS HERE WHERE MR. GLASSER WASN'T PRESENT,
WHERE PEOPLE HAVE SEEN MR. KRETSKE AND THEY HAVE TALKED ABOUT, THAT
THEY GAVE MONEY TO TAKE CARE OF GLASSER, THAT IS NOT BINDING ON MR.
GLASSER, AND THERE IS A DIVERGENCY THERE, AND MR. GLASSER FEELS THAT IF
I WOULD REPRESENT MR. KRETSKE THE JURY WOULD GET AN IDEA THAT THEY ARE
TOGETHER, AND ALL THE EVIDENCE - 

"THE COURT:  HOW WOULD IT BE IF I APPOINTED YOU AS ATTORNEY FOR
KRETSKE? 

"MR. STEWART:  THAT WOULD BE FOR YOUR HONOR TO DECIDE. 

"THE COURT:  I KNOW YOU ARE LOOKING OUT FOR EVERY POSSIBLE LEGITIMATE
DEFENSE THERE IS.  NOW, IF THE JURY UNDERSTOOD THAT WHILE YOU WERE
RETAINED BY MR. GLASSER THE COURT APPOINTED YOU AT THIS LATE HOUR TO
REPRESENT KRETSKE, WHAT WOULD BE THE EFFECT OF THE JURY ON THAT? 

"MR. STEWART:  YOUR HONOR COULD JUDGE THAT AS WELL AS I COULD. 

"THE COURT:  I THINK IT WOULD BE FAVORABLE TO THE DEFENDANT KRETSKE. 

"MR. GLASSER:  I THINK IT WOULD BE TOO, IF HE HAD MR. STEWART. 
THAT'S THE REASON I GOT MR. STEWART, BUT IF A DEFENDANT WHO HAS A
LAWYER REPRESENTING HIM IS ALLOWED TO ENTER AN OBJECTION, I WOULD LIKE
TO ENTER MY OBJECTION.  I WOULD LIKE TO HAVE MY OWN LAWYER REPRESENTING
ME. 

"THE COURT:  MR. MCDONNELL, YOU WILL HAVE TO STAY IN IT UNTIL MR.
KRETSKE GETS ANOTHER LAWYER, IF HE ISN'T SATISFIED WITH YOU. 

"(TO MR. KRETSKE) MR. KRETSKE, IF YOU ARE NOT SATISFIED WITH MR.
MCDONNELL, YOU WILL HAVE TO HIRE ANOTHER LAWYER.  WE WILL PROCEED WITH
THE SELECTION OF THE JURY NOW." 

A COLLOQUY THEN ENSUED BETWEEN THE COURT, MCDONNELL AND KRETSKE WHEN
THE FOLLOWING OCCURRED: 

"MR. KRETSKE:  I CAN END THIS.  I JUST SPOKE TO MR. STEWART AND HE
SAID IF YOUR HONOR WISHES TO APPOINT HIM I THINK WE CAN ACCEPT THE
APPOINTMENT. 

"MR. STEWART:  AS LONG AS THE COURT KNOWS THE SITUATION.  I THINK
THERE IS SOMETHING TO THE FACT THAT THE JURY KNOWS WE CAN'T CONTROL
THAT. 

"MR. MCDONNELL:  THEN THE ORDER IS VACATED? 

"THE COURT:  THE ORDER APPOINTING MR. MCDONNELL IS VACATED AND MR.
STEWART IS APPOINTED ATTORNEY FOR MR. KRETSKE." 

GLASSER REMAINED SILENT.  STEWART THEREAFTER REPRESENTED GLASSER AND
KRETSKE THROUGHOUT THE TRIAL AND WAS THE MOST ACTIVE OF THE ARRAY OF
DEFENSE COUNSEL. 

THE GUARANTEES OF THE BILL OF RIGHTS ARE THE PROTECTING BULWARKS
AGAINST THE REACH OF ARBITRARY POWER.  AMONG THOSE GUARANTEES IS THE
RIGHT GRANTED BY THE SIXTH AMENDMENT TO AN ACCUSED IN A CRIMINAL
PROCEEDING IN A FEDERAL COURT "TO HAVE THE ASSISTANCE OF COUNSEL FOR
HIS DEFENSE."  "THIS IS ONE OF THE SAFEGUARDS DEEMED NECESSARY TO
INSURE FUNDAMENTAL HUMAN RIGHTS OF LIFE AND LIBERTY," AND A FEDERAL
COURT CANNOT CONSTITUTIONALLY DEPRIVE AN ACCUSED, WHOSE LIFE OR LIBERTY
IS AT STAKE, OF THE ASSISTANCE OF COUNSEL.  JOHNSON V. ZERBST, 304 U.S.
458, 462, 463.  EVEN AS WE HAVE HELD THAT THE RIGHT TO THE ASSISTANCE
OF COUNSEL IS SO FUNDAMENTAL THAT THE DENIAL BY A STATE COURT OF A
REASONABLE TIME TO ALLOW THE SELECTION OF COUNSEL OF ONE'S OWN
CHOOSING, AND THE FAILURE OF THAT COURT TO MAKE AN EFFECTIVE
APPOINTMENT OF COUNSEL, MAY SO OFFEND OUR CONCEPT OF THE BASIC
REQUIREMENTS OF A FAIR HEARING AS TO AMOUNT TO A DENIAL OF DUE PROCESS
OF LAW CONTRARY TO THE FOURTEENTH AMENDMENT, POWELL V. ALABAMA, 287
U.S. 45, SO ARE WE CLEAR THAT THE "ASSISTANCE OF COUNSEL" GUARANTEED BY
THE SIXTH AMENDMENT CONTEMPLATES THAT SUCH ASSISTANCE BE UNTRAMMELED
AND UNIMPAIRED BY A COURT ORDER REQUIRING THAT ONE LAWYER SHALL
SIMULTANEOUSLY REPRESENT CONFLICTING INTERESTS.  IF THE RIGHT TO THE
ASSISTANCE OF COUNSEL MEANS LESS THAN THIS, A VALUED CONSTITUTIONAL
SAFEGUARD IS SUBSTANTIALLY IMPAIRED.    TO PRESERVE THE PROTECTION OF
THE BILL OF RIGHTS FOR HARDPRESSED DEFENDANTS, WE INDULGE EVERY
REASONABLE PRESUMPTION AGAINST THE WAIVER OF FUNDAMENTAL RIGHTS.  AETNA
INSURANCE CO. V. KENNEDY, 301 U.S. 389; OHIO BELL TELEPHONE CO. V.
PUBLIC UTILITIES COMMISSION, 301 U.S. 292.  GLASSER NEVER AFFIRMATIVELY
WAIVED THE OBJECTION WHICH HE INITIALLY ADVANCED WHEN THE TRIAL COURT
SUGGESTED THE APPOINTMENT OF STEWART.  WE ARE TOLD THAT, SINCE GLASSER
WAS AN EXPERIENCED ATTORNEY, HE TACITLY ACQUIESCED IN STEWART'S
APPOINTMENT BECAUSE HE FAILED TO RENEW VIGOROUSLY HIS OBJECTION AT THE
INSTANT THE APPOINTMENT WAS MADE.  THE FACT THAT GLASSER IS AN ATTORNEY
IS, OF COURSE, IMMATERIAL TO A CONSIDERATION OF HIS RIGHT TO THE
PROTECTION OF THE SIXTH AMENDMENT.  HIS PROFESSIONAL EXPERIENCE MAY BE
A FACTOR IN DETERMINING WHETHER HE ACTUALLY WAIVED HIS RIGHT TO THE
ASSISTANCE OF COUNSEL.  JOHNSON V. ZERBST, 304 U.S. 458, 464.  BUT IT
IS BY NO MEANS CONCLUSIVE. 

UPON THE TRIAL JUDGE RESTS THE DUTY OF SEEING THAT THE TRIAL IS
CONDUCTED WITH SOLICITUDE FOR THE ESSENTIAL RIGHTS OF THE ACCUSED. 
SPEAKING OF THE OBLIGATION OF THE TRIAL COURT TO PRESERVE THE RIGHT TO
JURY TRIAL FOR AN ACCUSED, MR. JUSTICE SUTHERLAND SAID THAT SUCH DUTY
"IS NOT TO BE DISCHARGED AS A MATTER OF ROTE, BUT WITH SOUND AND
ADVISED DISCRETION, WITH AN EYE TO AVOID UNREASONABLE OR UNDUE
DEPARTURES FROM THAT MODE OF TRIAL OR FROM ANY OF THE ESSENTIAL
ELEMENTS THEREOF, AND WITH A CAUTION INCREASING IN DEGREE AS THE
OFFENSES DEALT WITH INCREASE IN GRAVITY."  PATTON V. UNITED STATES, 281
U.S. 276, 312-313.  THE TRIAL COURT SHOULD PROTECT THE RIGHT OF AN
ACCUSED TO HAVE THE ASSISTANCE OF COUNSEL.  "THIS PROTECTING DUTY
IMPOSES THE SERIOUS AND WEIGHTY RESPONSIBILITY UPON THE TRIAL JUDGE OF
DETERMINING WHETHER THERE IS AN INTELLIGENT AND COMPETENT WAIVER BY THE
ACCUSED.  WHILE AN ACCUSED MAY WAIVE THE RIGHT TO COUNSEL, WHETHER
THERE IS A PROPER WAIVER SHOULD BE CLEARLY DETERMINED BY THE TRIAL
COURT, AND IT WOULD BE FITTING AND APPROPRIATE FOR THAT DETERMINATION
TO APPEAR UPON THE RECORD."  JOHNSON V. ZERBST, 304 U.S. 458, 465. 

NO SUCH CONCERN ON THE PART OF THE TRIAL COURT FOR THE BASIC RIGHTS
OF GLASSER IS DISCLOSED BY THE RECORD BEFORE US.  THE POSSIBILITY OF
THE INCONSISTENT INTERESTS OF GLASSER AND KRETSKE WAS BROUGHT HOME TO
THE COURT, BUT INSTEAD OF JEALOUSLY GUARDING GLASSER'S RIGHTS, THE
COURT MAY FAIRLY BE SAID TO BE RESPONSIBLE FOR CREATING A SITUATION
WHICH RESULTED IN THE IMPAIRMENT OF THOSE RIGHTS.  FOR THE MANNER IN
WHICH THE PARTIES ACCEPTED THE APPOINTMENT INDICATES THAT THEY THOUGHT
THEY WERE ACCEDING TO THE WISHES OF THE COURT.  KRETSKE SAID THE
APPOINTMENT COULD BE ACCEPTED "IF YOUR HONOR WISHES TO APPOINT HIM
(STEWART)," AND STEWART IMMEDIATELY REPLIED:  "AS LONG AS THE COURT
KNOWS THE SITUATION.  I THINK THERE IS SOMETHING IN THE FACT THAT THE
JURY KNOWS WE CAN'T CONTROL THAT."  THE COURT MADE NO EFFORT TO
REASCERTAIN GLASSER'S ATTITUDE OR WISHES.  UNDER THESE CIRCUMSTANCES,
TO HOLD THAT GLASSER FREELY, ALBEIT TACITLY, ACQUIESCED IN THE
APPOINTMENT OF STEWART IS TO DO VIOLENCE TO REALITY AND TO CONDONE A
DANGEROUS LAXITY ON THE PART OF THE TRIAL COURT IN THE DISCHARGE OF ITS
DUTY TO PRESERVE THE FUNDAMENTAL RIGHTS OF AN ACCUSED. 

GLASSER URGES THAT THE COURT'S APPOINTMENT OF STEWART AS COUNSEL FOR
KRETSKE EMBARRASSED AND INHIBITED STEWART'S CONDUCT OF HIS DEFENSE, IN
THAT IT PREVENTED STEWART FROM ADEQUATELY SAFEGUARDING GLASSER'S RIGHT
TO HAVE INCOMPETENT EVIDENCE EXCLUDED AND FROM FULLY CROSS-EXAMINING
THE WITNESSES FOR THE PROSECUTION. 

ONE BRANTMAN, AN ACCOUNTANT KNOWN TO KRETSKE AND RECOMMENDED
PROFESSIONALLY BY HIM TO A CLIENT, TESTIFIED THAT HE GAVE KRETSKE $3000
ON BEHALF OF ONE ABOSKETES.  HE FURTHER TESTIFIED THAT HE DID NOT KNOW
GLASSER.  STEWART SECURED A POSTPONEMENT OF CROSS-EXAMINATION FOR "IN
VIEW OF THE FACT THAT YOUR HONOR APPOINTED ME FOR MR. KRETSKE, I AM NOT
PREPARED TO CROSS-EXAMINE." 

ABOSKETES TOOK THE STAND IMMEDIATELY AFTER BRANTMAN AND TESTIFIED
THAT BRANTMAN TOLD HIM THAT HE WAS ABOUT TO BE INDICTED AND OFFERED TO
"FIX" THE CASE WITH SOMEONE IN THE FEDERAL BUILDING FOR $5000.  ABOUT
THE TIME OF THIS MEETING, GLASSER AND INVESTIGATOR BAILEY WERE
QUESTIONING ONE BROWN, WHO HAD BEEN CONVICTED FOR OPERATING A STILL, TO
DETERMINE WHETHER ABOSKETES WAS CONNECTED WITH THAT STILL.  ABOSKETES
REFERRED FREQUENTLY TO GLASSER IN HIS TESTIMONY AND INDICATED THAT
GLASSER AND BRANTMAN WERE LINKED TOGETHER.  THUS HE TESTIFIED THAT
BRANTMAN TOLD HIM "THEY HAVE GOT THE GOODS ON YOU, MR. GLASSER HAS GOT
IT OUT OF BROWN."  WHEN QUESTIONED AS TO HIS KNOWLEDGE OF BRANTMAN'S
CONNECTIONS, ABOSKETES REPLIED:  "THERE WAS MORE THAN A FIX, IF
INDICTMENT WAS STOPPED.  HE (BRANTMAN) KNOWS MR. GLASSER AND THAT WAS
ALL THERE WAS TO IT."  AND, LATER:  "HE HAD CONNECTIONS TO STOP THINGS
LIKE THAT, HE HAD CONNECTIONS IN THE FEDERAL BUILDING."  AND, AGAIN: "I
COULD NOT BE SURE THAT THIS MAN (BRANTMAN) WAS NOT PUTTING A SHAKE ON
ME AND BE HONEST ABOUT IT.  I COULD NOT GO OVER AND ASK MR. GLASSER IF
MR. BRANTMAN WAS ABLE TO FIX HIM.  I THOUGHT BRANTMAN COULD, THOUGH.  I
WAS KIND OF HOPING HE COULD.  IF I DID NOT THINK HE COULD, I WOULD NOT
HAVE GIVEN HIM THE MONEY." 

BRANTMAN WAS RE-CALLED THREE DAYS LATER.  STEWART DECLINED CROSS
EXAMINATION.  THAT THIS DECISION WAS INFLUENCED BY A DESIRE TO PROTECT
KRETSKE CAN REASONABLY BE INFERRED FROM THE COLLOQUY BETWEEN THE COURT
AND STEWART BEFORE SENTENCE WAS IMPOSED.  AT THAT TIME STEWART TOLD THE
COURT THAT, LEST HIS FAILURE TO CROSS-EXAMINE BRANTMAN REFLECT ON
KRETSKE, THE REASON FOR HIS FORBEARANCE WAS THAT HE FEARED THAT
BRANTMAN WOULD TELL WORSE LIES.  BUT, ESPECIALLY AFTER THE INTERVENING
TESTIMONY OF ABOSKETES, A THOROUGH CROSS-EXAMINATION WAS INDICATED IN
GLASSER'S INTEREST TO FULLY DEVELOP BRANTMAN'S LACK OF REFERENCE TO, OR
KNOWLEDGE OF GLASSER.  STEWART'S FAILURE TO UNDERTAKE SUCH A CROSS
EXAMINATION LUMINATES THE CROSS-PURPOSES UNDER WHICH HE WAS LABORING. 

GLASSER ALSO ARGUES THAT CERTAIN TESTIMONY, INADMISSIBLE AS TO HIM,
WAS ALLOWED WITHOUT OBJECTION BY STEWART ON HIS BEHALF BECAUSE OF
STEWART'S DESIRE TO AVOID PREJUDICE TO KRETSKE.  THE TESTIMONY
COMPLAINED OF IS THAT OF ELMER SWANSON, FRANK HODOROWICZ, EDWARD DEWES,
AND STANLEY WASIELEWSKI AS TO STATEMENTS MADE BY KRETSKE, NOT IN THE
PRESENCE OF GLASSER, AND HEARD BY THEM WHICH IMPLICATED GLASSER. 
GLASSER HAS RED HAIR, AND THE STATEMENTS MADE BY KRETSKE WERE THAT HE
WOULD HAVE TO SEE "RED," OR SEND THE MONEY OVER TO THE "RED-HEAD,"
ETC., IN CONNECTION WITH "FIXING" CASES.  FN5 

GLASSER CONTENDS THAT SUCH STATEMENTS CONSTITUTED INADMISSIBLE
HEARSAY AS TO HIM AND THAT STEWART FOREWENT THIS OBVIOUS OBJECTION LEST
AN OBJECTION ON BEHALF OF GLASSER ALONE LEAVE WITH THE JURY THE
IMPRESSION THAT THE TESTIMONY WAS TRUE AS TO KRETSKE.  THE GOVERNMENT
ATTACKS THIS ARGUMENT AS UNSOUND, AND, RELYING ON THE DOCTRINE THAT THE
DECLARATIONS OF ONE CONSPIRATOR IN FURTHERANCE OF THE OBJECTS OF THE
CONSPIRACY MADE TO A THIRD PARTY ARE ADMISSIBLE AGAINST HIS CO
CONSPIRATORS, LOGAN V. UNITED STATES, 144 U.S. 263, CONTENDS THAT THE
DECLARATIONS OF KRETSKE WERE ADMISSIBLE AGAINST GLASSER AND HENCE NO
PREJUDICE COULD ARISE FROM STEWART'S FAILURE TO OBJECT.  HOWEVER, SUCH
DECLARATIONS ARE ADMISSIBLE OVER THE OBJECTION OF AN ALLEGED CO
CONSPIRATOR, WHO WAS NOT PRESENT WHEN THEY WERE MADE, ONLY IF THERE IS
PROOF ALIUNDE THAT HE IS CONNECTED WITH THE CONSPIRACY.  MINNER V.
UNITED STATES, 57 F.2D 506; AND SEE NUDD V. BURROWS, 91 U.S. 426. 
OTHERWISE, HEARSAY WOULD LIFT ITSELF BY ITS OWN BOOTSTRAPS TO THE LEVEL
OF COMPETENT EVIDENCE. 

GLASSER URGES THAT, INDEPENDENTLY OF THE STATEMENTS COMPLAINED OF,
THERE IS NO PROOF CONNECTING HIM WITH THE CONSPIRACY.  CLEARLY THE
STATEMENTS WERE DAMAGING.  OTHER EVIDENCE TENDING TO CONNECT GLASSER
WITH THE CONSPIRACY IS RATHER MEAGRE BY COMPARISON.  FRANK HODOROWICZ
TESTIFIED THAT GLASSER APOLOGIZED TO HIM AFTER HIS INDICTMENT BECAUSE
HE, GLASSER, COULD DO NOTHING FOR HODOROWICZ.  HODOROWICZ ALSO
TESTIFIED THAT HE SENT A CASE OF WHISKEY TO GLASSER FOR CHRISTMAS,
1937.  VICTOR RAUBUNAS TESTIFIED THAT HE SAW GLASSER, KRETSKE AND
KAPLAN MEET ON THREE OCCASIONS.  AN ALCOHOL AGENT, DOWD, TESTIFIED THAT
GLASSER EXPELLED HIM FROM THE COURT-ROOM DURING THE TRIAL OF A LIBEL
CASE IN WHICH ROTH REPRESENTED THE SUCCESSFUL CLAIMANT.  GLASSER
RELEASED RAUBUNAS AND ONE JOPPEK, WHO WERE PICKED UP ON DIFFERENT
OCCASIONS FOR SUSPECTED LIQUOR VIOLATIONS, WITHOUT EXTENSIVE
QUESTIONING.  WHETHER TESTIMONY SUCH AS THIS WAS SUFFICIENT TO
ESTABLISH THE PARTICIPATION OF GLASSER IN THE CONSPIRACY WE NEED NOT
DECIDE.  THAT IS BESIDE THE POINT.  THE IMPORTANT FACT IS THAT NO
OBJECTION WAS OFFERED BY STEWART ON GLASSER'S BEHALF TO THE STATEMENTS
COMPLAINED OF, AND THIS DESPITE THE FACT THAT, WHEN THE COURT BROACHED
THE POSSIBILITY OF STEWART'S APPOINTMENT, STEWART TOLD THE COURT THAT
STATEMENTS OF THIS NATURE WERE NOT BINDING ON GLASSER.  THAT THIS IS
INDICATIVE OF STEWART'S STRUGGLE TO SERVE TWO MASTERS CANNOT SERIOUSLY
BE DOUBTED. 

THERE IS YET ANOTHER CONSIDERATION.  GLASSER WISHED THE BENEFIT OF
THE UNDIVIDED ASSISTANCE OF COUNSEL OF HIS OWN CHOICE.  WE THINK THAT
SUCH A DESIRE ON THE PART OF AN ACCUSED SHOULD BE RESPECTED. 
IRRESPECTIVE OF ANY CONFLICT OF INTEREST, THE ADDITIONAL BURDEN OF
REPRESENTING ANOTHER PARTY MAY CONCEIVABLY IMPAIR COUNSEL'S
EFFECTIVENESS. 

TO DETERMINE THE PRECISE DEGREE OF PREJUDICE SUSTAINED BY GLASSER AS
A RESULT OF THE COURT'S APPOINTMENT OF STEWART AS COUNSEL FOR KRETSKE
IS AT ONCE DIFFICULT AND UNNECESSARY.  THE RIGHT TO HAVE THE ASSISTANCE
OF COUNSEL IS TOO FUNDAMENTAL AND ABSOLUTE TO ALLOW COURTS TO INDULGE
IN NICE CALCULATIONS AS TO THE AMOUNT OF PREJUDICE ARISING FROM ITS
DENIAL.  CF. SNYDER V. MASSACHUSETTS, 291 U.S. 97, 116; TUMEY V. OHIO,
273 U.S. 510, 535; PATTON V. UNITED STATES, 281 U.S. 276, 292.  AND SEE
MCCANDLESS V. UNITED STATES, 298 U.S. 342, 347.  OF EQUAL IMPORTANCE
WITH THE DUTY OF THE COURT TO SEE THAT AN ACCUSED HAS THE ASSISTANCE OF
COUNSEL IS ITS DUTY TO REFRAIN FROM EMBARRASSING COUNSEL IN THE DEFENSE
OF AN ACCUSED BY INSISTING, OR INDEED, EVEN SUGGESTING, THAT COUNSEL
UNDERTAKE TO CONCURRENTLY REPRESENT INTERESTS WHICH MIGHT DIVERGE FROM
THOSE OF HIS FIRST CLIENT, WHEN THE POSSIBILITY OF THAT DIVERGENCE IS
BROUGHT HOME TO THE COURT.  IN CONSPIRACY CASES, WHERE THE LIBERAL
RULES OF EVIDENCE AND THE WIDE LATITUDE ACCORDED THE PROSECUTION MAY,
AND SOMETIMES DO, OPERATE UNFAIRLY AGAINST AN INDIVIDUAL DEFENDANT, IT
IS ESPECIALLY IMPORTANT THAT HE BE GIVEN THE BENEFIT OF THE UNDIVIDED
ASSISTANCE OF HIS COUNSEL WITHOUT THE COURT'S BECOMING A PARTY TO
ENCUMBERING THAT ASSISTANCE.  HERE THE COURT WAS ADVISED OF THE
POSSIBILITY THAT CONFLICTING INTERESTS MIGHT ARISE WHICH WOULD DIMINISH
STEWART'S USEFULNESS TO GLASSER.  NEVERTHELESS STEWART WAS APPOINTED AS
KRETSKE'S COUNSEL.  OUR EXAMINATION OF THE RECORD LEADS TO THE
CONCLUSION THAT STEWART'S REPRESENTATION OF GLASSER WAS NOT AS
EFFECTIVE AS IT MIGHT HAVE BEEN IF THE APPOINTMENT HAD NOT BEEN MADE. 
WE HOLD THAT THE COURT THEREBY DENIED GLASSER HIS RIGHT TO HAVE THE
EFFECTIVE ASSISTANCE OF COUNSEL, GUARANTEED BY THE SIXTH AMENDMENT. 
THIS ERROR REQUIRES THAT THE VERDICT BE SET ASIDE AND A NEW TRIAL
ORDERED AS TO GLASSER. 

BUT THIS ERROR DOES NOT REQUIRE THAT THE CONVICTIONS OF THE OTHER
PETITIONERS BE SET ASIDE.  TO SECURE A NEW TRIAL THEY MUST SHOW THAT
THE DENIAL OF GLASSER'S CONSTITUTIONAL RIGHTS PREJUDICED THEM IN SOME
MANNER, FOR WHERE ERROR AS TO ONE DEFENDANT IN A CONSPIRACY CASE
REQUIRES THAT A NEW TRIAL BE GRANTED HIM, THE RIGHTS OF HIS CO
DEFENDANTS TO A NEW TRIAL DEPEND UPON WHETHER THAT ERROR PREJUDICED
THEM.  AGNELLO V. UNITED STATES, 269 U.S. 20; UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S. 150; ROSSI V. UNITED STATES, 278 F. 349; BELFI
V. UNITED STATES, 259 F. 822; BROWNE V. UNITED STATES, 145 F. 1; DUFOUR
V. UNITED STATES, 37 APP. D.C. 497.  KRETSKE DOES NOT CONTEND THAT HE
WAS PREJUDICED BY THE APPOINTMENT, AND WE ARE CLEAR FROM THE RECORD
THAT NO PREJUDICE IS DISCLOSED AS TO HIM.  ROTH ARGUES THE POINT, BUT
HE WAS REPRESENTED THROUGHOUT THE CASE BY HIS OWN ATTORNEY.  WE FAIL TO
SEE THAT THE DENIAL OF GLASSER'S RIGHT TO HAVE THE ASSISTANCE OF
COUNSEL AFFECTED ROTH. 

TURNING NOW TO THE CONTENTIONS OF KRETSKE AND ROTH, WE ARE CLEAR THAT
SUBSTANTIAL EVIDENCE SUPPORTS THE VERDICT AGAINST BOTH.  AS NOTED
BEFORE, KRETSKE DOES NOT RAISE THE POINT OTHER THAN TO MENTION THAT THE
TESTIMONY AGAINST HIM WAS LARGELY THAT OF ACCOMPLICES AND UNSAVORY
CHARACTERS.  THE SHORT ANSWER TO THIS IS THAT THE CREDIBILITY OF A
WITNESS IS A QUESTION FOR THE JURY. 

THE EVIDENCE AGAINST ROTH DISCLOSES THE FOLLOWING SALIENT FACTS. 
ELMER SWANSON, CLEM DOWIAT AND ANTHONY HODOROWICZ WERE ARRESTED IN
CONNECTION WITH A STILL ON STONY ISLAND AVENUE.  FRANK HODOROWICZ, THE
HEAD OF THE HODOROWICZ CROWD, ARRANGED A MEETING WITH KRETSKE AT HIS
HARDWARE STORE TO "TAKE CARE" OF THE CASE.  HORTON WAS PRESENT AND
KRETSKE TOLD THE GROUP THAT THERE "WAS A LOT OF HEAT" ON THE CASE BUT
THAT IT COULD BE ARRANGED SO THAT NOBODY "WOULD GO TO JAIL" FOR $1200,
PART OF WHICH "RED" WAS TO GET.  A DOWN PAYMENT OF $500 WAS MADE.  WHEN
A LAWYER WAS SOUGHT, KRETSKE REFERRED THE PROSPECTIVE DEFENDANTS TO
ROTH.  HE REPRESENTED THEM AT THE HEARING BEFORE THE COMMISSIONER,
WHICH WAS CONTINUED AT THE REQUEST OF GLASSER.  AFTER AN INDICTMENT WAS
RETURNED, ROTH APPEARED FOR TRIAL TO FIND THAT THE CASE HAD BEEN
STRICKEN FROM THE DOCKET WITH LEAVE TO REINSTATE IT.  THE DEFENDANTS
WERE NEVER BROUGHT TO TRIAL.  NONE OF THE HODOROWICZES OR THEIR
ASSOCIATES PAID ROTH FOR HIS SERVICES.  ROTH TESTIFIED THAT HE RECEIVED
HIS FEE FROM KRETSKE.    IN JUNE 1938, GLASSER SECURED TWO INDICTMENTS,
ONE AGAINST FRANK, MIKE, AND PETER HODOROWICZ AND CLEM DOWIAT, AND THE
OTHER AGAINST FRANK AND PETER HODOROWICZ AND DOWIAT, FOR THE SALE OF
ILLICIT ALCOHOL.  FRANK PAID KRETSKE $250 AFTER THE INDICTMENTS. 
KRETSKE LATER TOLD HIM THAT NOTHING COULD BE DONE, AS INVESTIGATOR
BAILEY WAS PRESSING GLASSER.  FRANK THEN WENT TO SEE ROTH, WHO WITH
KRETSKE WENT TO SEE GLASSER.  ROTH LATER TOLD FRANK THAT NOTHING COULD
BE DONE AND SUGGESTED THAT HE GET AN ATTORNEY AND PREPARE TO DEFEND
HIMSELF.  ROTH'S EXPLANATION OF THIS WAS THAT HE WENT TO GLASSER TO
LEARN THE LATTER'S ATTITUDE TOWARD CLEMENCY FOR FRANK, AND THAT HE
SUGGESTED THE RETENTION OF TWO LAWYERS, ONE TO DEFEND FRANK, AND THE
OTHER TO REPRESENT THE REMAINING DEFENDANTS.  FRANK DISPENSED WITH
ROTH'S SERVICES AND WAS REPRESENTED AT THE TRIAL BY ONE HESS.  FRANK
PAID ROTH $50, BUT THIS WAS IN CONNECTION WITH SUBSTITUTING SOME
SECURITIES ON HIS BOND. 

EDWARD DEWES HAD BEEN ASSOCIATED WITH THE DEFENDANT KAPLAN IN A STILL
AT SPRING GROVE.  THAT CASE WAS TWICE PRESENTED TO A GRAND JURY BY
GLASSER BUT WITHDRAWN ON EACH OCCASION.  TWO DAYS BEFORE IT WAS
PRESENTED A THIRD TIME, THE DEFENDANT HORTON TOLD DEWES THAT KRETSKE
WISHED TO SEE HIM.  DEWES WENT TO KRETSKE'S OFFICE AND PAID HIM $100 SO
THAT HE WOULD NOT BE INDICTED.  DEWES WAS NO-BILLED IN THAT CASE. 
DEWES WAS ALSO INVOLVED IN A STILL ON THE FARM OF ONE BEISNER.  IT WAS
RAIDED AND SEVERAL WERE ARRESTED.  DEWES, VICTOR RAUBUNAS AND EDWARD
FARBER ASKED HORTON TO "FIX" THAT CASE, BUT WHEN HIS PRICE WAS THOUGHT
TOO HIGH, FARBER, WHO HAD KNOWN KRETSKE FOR SOME TIME, TOOK DEWES AND
RAUBUNAS TO KRETSKE'S OFFICE.  KRETSKE OFFERED TO TAKE CARE OF THE CASE
FOR $1200.  RAUBUNAS PAID $300 AND THEY WERE TOLD THEY WOULD NEED NO
LAWYER AT THE PRELIMINARY HEARING.  EVENTUALLY RAUBUNAS, DEWES AND
BEISNER WERE INDICTED.  DEWES THEREAFTER PAID KRETSKE $275 TO "FIX" HIS
CASE.  KRETSKE REFERRED THE MATTER TO ROTH, WHO REPRESENTED DEWES
THROUGHOUT HIS TRIAL.  DEWES TESTIFIED THAT HE NEITHER RETAINED NOR
PAID ROTH. 

PAUL SVEC, AN ASSOCIATE OF ONE YARRIO, WAS ARRESTED IN 1937 FOR A
LIQUOR VIOLATION.  HORTON ARRANGED HIS BOND.  IN SVEC'S PRESENCE HORTON
PICKED UP KRETSKE AND YARRIO.  THEY TOLD SVEC NOT TO WORRY.  HE WAS
THEREAFTER INDICTED AND CONVICTED.  WHILE AT LIBERTY PENDING AN APPEAL,
HE WAS AGAIN ARRESTED.  THIS TIME HE CALLED GLASSER, AND ACCORDING TO
THE LATTER, OFFERED HIM MONEY.  THE FOLLOWING MORNING GLASSER
INTERROGATED SVEC IN THE HEARING OF A SECRETED AGENT OF THE FEDERAL
BUREAU OF INVESTIGATION AND SECURED ADMISSIONS THAT SVEC HAD NEVER PAID
GLASSER MONEY OR RECEIVED ANY PROMISES FROM HIM, AND THAT THE CALL HAD
BEEN AT THE INSTIGATION OF THE ARRESTING INVESTIGATORS.  SVEC TESTIFIED
THAT ROTH TOLD HIM THAT HE "STOOD UP O.K."  UNDER GLASSER'S
QUESTIONING.  SVEC WAS DISCHARGED AT THE COMMISSIONER'S HEARING. 

GLASSER PROSECUTED LEO VITALE FOR THE OPERATION OF A STILL.  HE WAS
CONVICTED AND RECEIVED A SENTENCE OF ONE HOUR IN THE CUSTODY OF THE
MARSHAL.  VITALE'S WIFE, ROSE, WAS THE CLAIMANT IN A SUBSEQUENT LIBEL
ACTION AGAINST A CAR ALLEGEDLY USED TO TRANSPORT ILLICIT LIQUOR.  THE
CASE WAS REFERRED TO ROTH BY KRETSKE.  ROTH INFORMED THE COURT THAT
VITALE WAS "O.K."  AND THAT THE CAR WAS NOT USED FOR ILLEGAL PURPOSES. 
AS WAS THE CUSTOM, THE CASE WAS TRIED ON THE AGENT'S REPORT.  IT WAS
DISMISSED.  INVESTIGATOR DOWD LATER INFORMED GLASSER THAT HE HAD HEARD
THAT VITALE HAD BOASTED THAT "HE GOT OUT OF THIS FOR NINE HUNDRED
DOLLARS." 

IN APRIL 1938, EDWARD AND WILLIAM WROBLEWSKI WERE INDICTED IN THE
NORTHERN DISTRICT OF INDIANA.  THEY ENGAGED ROTH AS THEIR COUNSEL. 
THEY DID NOT REMEMBER HOW THEY MET ROTH.  WHEN ASKED BY THE COURT IF
ANYONE RECOMMENDED ROTH TO HIM, EDWARD ANSWERED:  "NO, SIR, I DON'T
REMEMBER WHETHER IT WAS A RUMOR ABOUT HIS NAME."  ACCORDING TO
ALEXANDER CAMPBELL, AN ASSISTANT UNITED STATES ATTORNEY IN THAT
DISTRICT, ROTH APPEARED IN HIS OFFICE IN SEPTEMBER 1938 AND ASKED IF
THE WROBLEWSKIS HAD BEEN INDICTED.  CAMPBELL REPLIED THAT HE DID NOT
KNOW OFF-HAND BUT WOULD CHECK THE FILES.  ROTH THEN ASKED, IF THE FILES
SHOWED NO INDICTMENT, WHETHER SOME ARRANGEMENT COULD BE MADE SO THAT NO
INDICTMENT WOULD BE RETURNED.  HE OFFERED CAMPBELL $500 OR $1000.  WHEN
CAMPBELL REFUSED, ROTH SAID:  "WELL, THAT IS THE WAY WE HANDLE CASES IN
CHICAGO SOMETIMES."  THE WROBLEWSKIS WERE CONVICTED.  SUBSEQUENTLY,
ROTH ASKED CAMPBELL TO USE HIS INFLUENCE TO STOP THE INVESTIGATION IN
CHICAGO BY BAILEY WHICH RESULTED IN THE INSTANT CASE. 

IT IS NOT FOR US TO WEIGH THE EVIDENCE OR TO DETERMINE THE
CREDIBILITY OF WITNESSES.  THE VERDICT OF A JURY MUST BE SUSTAINED IF
THERE IS SUBSTANTIAL EVIDENCE, TAKING THE VIEW MOST FAVORABLE TO THE
GOVERNMENT, TO SUPPORT IT.  UNITED STATES V. MANTON, 107 F.2D 834, 839,
AND CASES CITED.  PARTICIPATION IN A CRIMINAL CONSPIRACY NEED NOT BE
PROVED BY DIRECT EVIDENCE; A COMMON PURPOSE AND PLAN MAY BE INFERRED
FROM A "DEVELOPMENT AND A COLLOCATION OF CIRCUMSTANCES."  UNITED STATES
V. MANTON, SUPRA.  WE ARE CLEAR THAT, FROM THE CIRCUMSTANCES OUTLINED
ABOVE, THE JURY COULD INFER THE EXISTENCE OF A CONSPIRACY AND THE
PARTICIPATION OF ROTH IN IT.  ROTH'S STATEMENTS TO CAMPBELL IN THE
WROBLEWSKI MATTER, HIS SUGGESTION TO FRANK HODOROWICZ THAT HE SHOULD
GET A LAWYER AND PREPARE TO DEFEND HIMSELF WHEN THE CASE COULD NOT BE
"FIXED," THE FACT THAT HE RECEIVED NO FEES FROM THE HODOROWICZES WITH
THE EXCEPTION OF $50 IN CONNECTION WITH FRANK'S BOND, DEWES' TESTIMONY
THAT HE NEITHER RETAINED NOR PAID ROTH, ROTH'S COMMENDATION OF SVEC'S
BEARING UNDER GLASSER'S INTERROGATION, ALL FURNISH THE NECESSARY
SUPPORT FOR THE JURY'S VERDICT. 

THE OBJECTIONS OF KRETSKE AND ROTH WITH REGARD TO THE ADMISSION OF
CERTAIN EVIDENCE ARE WITHOUT MERIT.  THE REPORTS OF INVESTIGATORS OF
THE ALCOHOL TAX UNIT ON STILLS AT WESTERN AVENUE AND AT SPRING GROVE,
OPERATED BY THE DEFENDANT KAPLAN AND HIS ASSOCIATES, WERE ADMITTED AS
GOVERNMENT EXHIBITS 81A AND 113.  EACH CONTAINED STATEMENTS TAKEN FROM
PROSPECTIVE WITNESSES BY THE INVESTIGATORS, AND EACH GAVE A DESCRIPTION
OF THE PROSPECTIVE DEFENDANTS.  KAPLAN WAS REFERRED TO AS OF JEWISH
DESCENT, A BOOTLEGGER BY REPUTATION, AND MENTION WAS MADE OF THE ARREST
OF KAPLAN AND EDWARD DEWES IN CONNECTION WITH THE KILLING OF ONE
PINNA.  AT THE TIME EACH REPORT WAS ADMITTED THE TRIAL JUDGE INFORMED
THE JURY THAT IT WAS ADMITTED ONLY AGAINST GLASSER AND CONTINUED:  "AT
SOME FURTHER STAGE OF THE PROCEEDINGS I MAY ADVISE YOU WITH REFERENCE
TO ITS COMPETENCY AS TO THE OTHER DEFENDANTS, BUT FOR THE TIME BEING IT
WILL BE ADMISSIBLE ONLY AGAINST THE DEFENDANT GLASSER."  THE RECORD
BEFORE US CONTAINS NO INDICATION THAT THE JURY WAS LATER INFORMED THAT
THE EXHIBITS WERE EVIDENCE AGAINST THE DEFENDANTS OTHER THAN GLASSER. 
THE CLAIM OF KRETSKE AND ROTH, THAT THE ADMISSION OF THESE REPORTS WAS
PREJUDICIAL TO KAPLAN AND THAT THEY ARE ENTITLED TO TAKE ADVANTAGE OF
THAT ERROR, IGNORES THE FACT THAT THEY WERE ADMITTED AGAINST GLASSER
ALONE. 

NO REVERSIBLE ERROR WAS COMMITTED BY OVERRULING OBJECTIONS TO THE
TESTIMONY OF ALEXANDER CAMPBELL WITH RELATION TO HIS DEALINGS WITH
ROTH.  TRIAL JUDGES HAVE A MEASURE OF DISCRETION IN ALLOWING TESTIMONY
WHICH DISCLOSES THE PURPOSE, KNOWLEDGE, OR DESIGN OF A PARTICULAR
PERSON.  BUTLER V. UNITED STATES, 53 F.2D 800; SIMPKINS V. UNITED
STATES, 78 F.2D 594, 598.  WE DO NOT THINK THE BOUNDS OF THAT
DISCRETION WERE EXCEEDED HERE.  THE STATEMENTS OF ROTH WERE NOT IN
FURTHERANCE OF THE CONSPIRACY, BUT THEY DID TEND TO CONNECT ROTH WITH
IT BY EXPLAINING HIS STATE OF MIND. 

THE JUDGE CONDUCTING A JURY TRIAL IN A FEDERAL COURT IS "NOT A MERE
MODERATOR, BUT IS THE GOVERNOR OF THE TRIAL FOR THE PURPOSE OF ASSURING
ITS PROPER CONDUCT."  QUERCIA V. UNITED STATES, 289 U.S. 466, 469. 
UPON HIM RESTS THE RESPONSIBILITY OF STRIVING FOR THAT ATMOSPHERE OF
PERFECT IMPARTIALITY WHICH IS SO MUCH TO BE DESIRED IN A JUDICIAL
PROCEEDING.  PETITIONERS CONTEND THAT THE TRIAL JUDGE MADE REMARKS
PREJUDICIAL TO THEM, COMMITTED ACTS OF ADVOCACY, QUESTIONED THEM IN A
HOSTILE MANNER, UNDULY LIMITED CROSS-EXAMINATION, AND IN GENERAL FAILED
TO MAINTAIN AN IMPARTIAL ATTITUDE.  VARIOUS INCIDENTS IN SUPPORT OF
THOSE CONTENTIONS ARE BROUGHT TO OUR ATTENTION. 

THE COURT DID INTERROGATE SEVERAL WITNESSES, BUT IN THE MAIN SUCH
INTERROGATION WAS WITHIN ITS POWER TO ELICIT THE TRUTH BY AN
EXAMINATION OF THE WITNESSES.  UNITED STATES V. GROSS, 103 F.2D 11;
UNITED STATES V. BREEN, 96 F.2D 782.  IN ASKING ANTHONY HODOROWICZ
WHETHER THERE HAD BEEN A FULL DISCLOSURE OF HIS CONNECTION WITH THE
STONY ISLAND STILL WHEN HE APPEARED BEFORE JUDGE WOODWARD, THE COURT
OBVIOUSLY WAS UNDER A MISAPPREHENSION OF THE NATURE OF THE APPEARANCE. 
IT WAS SIMPLY FOR THE PURPOSE OF ARRAIGNMENT, AND OF COURSE NO
TESTIMONY WAS OFFERED.  MUCH IS MADE OF THIS, BUT AT THE TIME NO ONE
ATTEMPTED TO EXPLAIN TO THE COURT THE NATURE OF THE APPEARANCE. 
STEWART LATER BROUGHT OUT ON CROSS-EXAMINATION THAT IT WAS ONLY AN
ARRAIGNMENT AND THAT THERE WAS NO NECESSITY FOR TESTIMONY ON THAT DAY. 

AFTER THE TESTIMONY OF ABOSKETES, THE COURT READ INTO THE RECORD THE
FACT THAT ABOSKETES WAS INDICTED IN WISCONSIN IN 1936 AND 1938, AND
THAT HE PLEADED GUILTY TO ONE INDICTMENT AND THAT THE OTHER WAS
DISMISSED.  IT IS, OF COURSE, IMPROPER FOR A JUDGE TO ASSUME THE ROLE
OF A WITNESS, BUT WE CANNOT HERE CONCLUDE THAT PREJUDICIAL ERROR
RESULTED.  ABOSKETES HAD BRIEFLY REFERRED TO HIS TROUBLES IN WISCONSIN
IN HIS TESTIMONY. 

THE ALLEGED UNDUE LIMITATION OF CROSS-EXAMINATION MERITS SCANT
ATTENTION.  THE EXTENT OF SUCH EXAMINATION RESTS IN THE SOUND
DISCRETION OF THE TRIAL COURT.  ALFORD V. UNITED STATES, 282 U.S. 687. 
WE FIND NO ABUSE OF THAT DISCRETION. 

PERHAPS THE COURT DID NOT ATTAIN AT ALL TIMES THAT THOROUGHGOING
IMPARTIALITY WHICH IS THE IDEAL, BUT OUR EXAMINATION OF THE RECORD AS A
WHOLE LEADS TO THE CONCLUSION THAT THE SUBSTANTIAL RIGHTS OF THE
PETITIONERS WERE NOT AFFECTED.  THE TRIAL WAS LONG AND THE INCIDENTS
RELIED ON BY PETITIONERS FEW.  WE MUST GUARD AGAINST THE MAGNIFICATION
ON APPEAL OF INSTANCES WHICH WERE OF LITTLE IMPORTANCE IN THEIR
SETTING.  CF. UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150,
240; GOLDSTEIN V. UNITED STATES, 63 F.2D 609; UNITED STATES V. WARREN,
120 F.2D 211. 

SEPARATE CONSIDERATION OF THE NUMEROUS INSTANCES OF ALLEGED
PREJUDICIAL MISCONDUCT ON THE PART OF THE PROSECUTING ATTORNEY WOULD
UNDULY EXTEND THIS OPINION.  SUFFICE IT TO SAY, THAT AFTER DUE
CONSIDERATION WE CONCLUDE THAT NO ONE INSTANCE, NOR THE COMBINATION OF
THEM ALL, CONSTITUTES REVERSIBLE ERROR. 

ALL THE PETITIONERS CONTEND THAT THEY WERE DENIED AN IMPARTIAL TRIAL
BECAUSE OF THE ALLEGED EXCLUSION FROM THE PETIT JURY PANEL OF ALL WOMEN
NOT MEMBERS OF THE ILLINOIS LEAGUE OF WOMEN VOTERS.  IN SUPPORT OF
THEIR MOTIONS FOR A NEW TRIAL, GLASSER AND ROTH FILED AFFIDAVITS WHICH
ARE THE BASIS OF PETITIONERS' PRESENT CONTENTIONS.  KRETSKE DID NOT
FILE AN AFFIDAVIT, BUT HE URGES THE POINT HERE. 

GLASSER SWORE ON INFORMATION AND BELIEF THAT ALL THE NAMES OF WOMEN
PLACED IN THE BOX FROM WHICH THE PANEL WAS DRAWN WERE TAKEN FROM A LIST
FURNISHED THE CLERK OF THE COURT BY THE ILLINOIS LEAGUE OF WOMEN
VOTERS, AND PREPARED EXCLUSIVELY FROM ITS MEMBERSHIP, THAT THE WOMEN ON
THAT LIST HAD ATTENDED "JURY CLASSES WHOSE LECTURERS PRESENTED THE
VIEWS OF THE PROSECUTION," AND THAT WOMEN NOT MEMBERS OF THE LEAGUE,
BUT OTHERWISE QUALIFIED, WERE SYSTEMATICALLY EXCLUDED, BY REASON OF
WHICH AFFIANT "DID NOT HAVE A TRIAL BY A JURY FREE FROM BIAS,
PREJUDICE, AND PRIOR INSTRUCTIONS, AND AS A RESULT THEREOF THE JURY WAS
DISQUALIFIED AND THIS AFFIANT'S RIGHTS WERE PREJUDICED IN THAT HE WAS
DEPRIVED OF A TRIAL BY JURY GUARANTEED TO HIM BY THE LAWS AND THE
CONSTITUTION OF THE UNITED STATES OF AMERICA, AND PARTICULARLY THE 5TH
AND 6TH AMENDMENT, ALL OF WHICH HE OFFERS TO PROVE."  THE SOURCE OF
GLASSER'S INFORMATION WAS STATED TO BE A THEN CURRENT ARTICLE, "WOMEN
AND THE LAW," IN THE AMERICAN BAR ASSOCIATION JOURNAL FOR APRIL
1940(VOL.  26, NO. 4).  ROTH'S AFFIDAVIT MERELY GAVE GLASSER AS HIS
SOURCE OF INFORMATION AND MADE NO OFFER OF PROOF.  THE COURT OVERRULED
THE MOTIONS FOR A NEW TRIAL.  THE RECORD DISCLOSES THAT THE JURY WAS
COMPOSED OF SIX MEN AND SIX WOMEN. 

SINCE IT WAS FIRST RECOGNIZED IN MAGNA CARTA, TRIAL BY JURY HAS BEEN
A PRIZED SHIELD AGAINST OPPRESSION, BUT, WHILE PROCLAIMING TRIAL BY
JURY AS "THE GLORY OF THE ENGLISH LAW," BLACKSTONE WAS CAREFUL TO NOTE
THAT IT WAS BUT A "PRIVILEGE."  COMMENTARIES, BOOK 3, P. 379.  OUR
CONSTITUTION TRANSFORMS THAT PRIVILEGE INTO A RIGHT IN CRIMINAL
PROCEEDINGS IN A FEDERAL COURT.  THIS WAS RECOGNIZED BY JUSTICE STORY:
"WHEN OUR MORE IMMEDIATE ANCESTORS REMOVED TO AMERICA, THEY BROUGHT
THIS GREAT PRIVILEGE (TRIAL BY JURY IN CRIMINAL CASES) WITH THEM, AS
THEIR BIRTHRIGHT AND INHERITANCE, AS A PART OF THAT ADMIRABLE COMMON
LAW WHICH HAD FENCED ROUND AND INTERPOSED BARRIERS ON EVERY SIDE
AGAINST THE APPROACHES OF ARBITRARY POWER.  IT IS NOW INCORPORATED INTO
ALL OUR STATE CONSTITUTIONS AS A FUNDAMENTAL RIGHT, AND THE
CONSTITUTION OF THE UNITED STATES WOULD HAVE BEEN JUSTLY OBNOXIOUS TO
THE MOST CONCLUSIVE OBJECTION IF IT HAD NOT RECOGNIZED AND CONFIRMED IT
ON THE MOST SOLEMN TERMS."  2 STORY, CONST. SEC. 1779. 

LEST THE RIGHT OF TRIAL BY JURY BE NULLIFIED BY THE IMPROPER
CONSTITUTION OF JURIES, THE NOTION OF WHAT A PROPER JURY IS HAS BECOME
INEXTRICABLY INTERTWINED WITH THE IDEA OF JURY TRIAL.  WHEN THE
ORIGINAL CONSTITUTION PROVIDED ONLY THAT "THE TRIAL OF ALL CRIMES,
EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY JURY,"  FN6  THE PEOPLE AND
THEIR REPRESENTATIVES, LEAVING NOTHING TO CHANCE, WERE QUICK TO
IMPLEMENT THAT GUARANTEE BY THE ADOPTION OF THE SIXTH AMENDMENT WHICH
PROVIDES THAT THE JURY MUST BE IMPARTIAL.    FOR THE MECHANICS OF TRIAL
BY JURY WE REVERT TO THE COMMON LAW AS IT EXISTED IN THIS COUNTRY AND
IN ENGLAND WHEN THE CONSTITUTION WAS ADOPTED.  PATTON V. UNITED STATES,
281 U.S. 276.  BUT EVEN AS JURY TRIAL, WHICH WAS A PRIVILEGE AT COMMON
LAW, HAS BECOME A RIGHT WITH US, SO ALSO, WHATEVER LIMITATIONS WERE
INHERENT IN THE HISTORICAL COMMON LAW CONCEPT OF THE JURY AS A BODY OF
ONE'S PEERS DO NOT PREVAIL IN THIS COUNTRY.  OUR NOTIONS OF WHAT A
PROPER JURY IS HAVE DEVELOPED IN HARMONY WITH OUR BASIC CONCEPTS OF A
DEMOCRATIC SOCIETY AND A REPRESENTATIVE GOVERNMENT.  FOR "IT IS PART OF
THE ESTABLISHED TRADITION IN THE USE OF JURIES AS INSTRUMENTS OF PUBLIC
JUSTICE THAT THE JURY BE A BODY TRULY REPRESENTATIVE OF THE
COMMUNITY."  SMITH V. TEXAS, 311 U.S. 128, 130. 

JURORS IN A FEDERAL COURT ARE TO HAVE THE QUALIFICATIONS OF THOSE IN
THE HIGHEST COURT OF THE STATE, AND THEY ARE TO BE SELECTED BY THE
CLERK OF THE COURT AND A JURY COMMISSIONER.  SECS. 275, 276 JUD.  CODE;
28 U.S.C. SECS. 411, 412.  THIS DUTY OF SELECTION MAY NOT BE
DELEGATED.  UNITED STATES V. MURPHY, 224 F. 554; IN RE PETITION FOR
SPECIAL GRAND JURY, 50 F.2D 973.  AND, ITS EXERCISE MUST ALWAYS ACCORD
WITH THE FACT THAT THE PROPER FUNCTIONING OF THE JURY SYSTEM, AND,
INDEED, OUR DEMOCRACY ITSELF, REQUIRES THAT THE JURY BE A "BODY TRULY
REPRESENTATIVE OF THE COMMUNITY," AND NOT THE ORGAN OF ANY SPECIAL
GROUP OR CLASS.  IF THAT REQUIREMENT IS OBSERVED, THE OFFICIALS CHARGED
WITH CHOOSING FEDERAL JURORS MAY EXERCISE SOME DISCRETION TO THE END
THAT COMPETENT JURORS MAY BE CALLED.  BUT THEY MUST NOT ALLOW THE
DESIRE FOR COMPETENT JURORS TO LEAD THEM INTO SELECTIONS WHICH DO NOT
COMPORT WITH THE CONCEPT OF THE JURY AS A CROSS-SECTION OF THE
COMMUNITY.  TENDENCIES, NO MATTER HOW SLIGHT, TOWARD THE SELECTION OF
JURORS BY ANY METHOD OTHER THAN A PROCESS WHICH WILL INSURE A TRIAL BY
A REPRESENTATIVE GROUP ARE UNDERMINING PROCESSES WEAKENING THE
INSTITUTION OF JURY TRIAL, AND SHOULD BE STURDILY RESISTED.  THAT THE
MOTIVES INFLUENCING SUCH TENDENCIES MAY BE OF THE BEST MUST NOT BLIND
US TO THE DANGERS OF ALLOWING ANY ENCROACHMENT WHATSOEVER ON THIS
ESSENTIAL RIGHT.  STEPS INNOCENTLY TAKEN MAY, ONE BY ONE, LEAD TO THE
IRRETRIEVABLE IMPAIRMENT OF SUBSTANTIAL LIBERTIES. 

THE DELIBERATE SELECTION OF JURORS FROM THE MEMBERSHIP OF PARTICULAR
PRIVATE ORGANIZATIONS DEFINITELY DOES NOT CONFORM TO THE TRADITIONAL
REQUIREMENTS OF JURY TRIAL.  NO MATTER HOW HIGH-PRINCIPLED AND IMBUED
WITH A DESIRE TO INCULCATE PUBLIC VIRTUE SUCH ORGANIZATIONS MAY BE, THE
DANGERS INHERENT IN SUCH A METHOD OF SELECTION ARE THE MORE REAL WHEN
THE MEMBERS OF THOSE ORGANIZATIONS, FROM TRAINING OR OTHERWISE, ACQUIRE
A BIAS IN FAVOR OF THE PROSECUTION.  THE JURY SELECTED FROM THE
MEMBERSHIP OF SUCH AN ORGANIZATION IS THEN NOT ONLY THE ORGAN OF A
SPECIAL CLASS, BUT, IN ADDITION, IT IS ALSO OPENLY PARTISAN.  IF SUCH
PRACTICES ARE TO BE COUNTENANCED, THE HARD-WON RIGHT OF TRIAL BY JURY
BECOMES A THING OF DOUBTFUL VALUE, LACKING ONE OF THE ESSENTIAL
CHARACTERISTICS THAT HAVE MADE IT A CHERISHED FEATURE OF OUR
INSTITUTIONS. 

SO, IF THE PICTURE IN THIS CASE ACTUALLY IS AS ALLEGED IN GLASSER'S
AFFIDAVIT, WE WOULD BE COMPELLED TO SET ASIDE THE TRIAL COURT'S DENIAL
OF THE MOTION FOR A NEW TRIAL AS A CLEAR ABUSE OF DISCRETION, AND ORDER
A NEW TRIAL FOR ALL THE PETITIONERS.  BUT FROM THE RECORD BEFORE US WE
MUST CONCLUDE THAT PETITIONERS' SHOWING IS INSUFFICIENT.  THE
GOVERNMENT DID NOT CONTROVERT THE AFFIDAVITS BY COUNTERAFFIDAVITS OR
FORMAL DENIAL, AND IT DOES NOT APPEAR FROM THE RECORD THAT ANY ARGUMENT
WAS HEARD ON THEM.  FROM THIS, PETITIONERS ARGUE THAT THE ALLEGATIONS
OF THE AFFIDAVITS ARE TO BE TAKEN AS TRUE FOR THE PURPOSE OF THE
MOTION.  HOWEVER, THIS IS NOT A CASE WHERE THE PROSECUTION HAS
IMPLIEDLY, NEAL V. DELAWARE, 103 U.S. 370, OR ACTUALLY, HALE V.
KENTUCKY, 303 U.S. 613, STIPULATED THAT AFFIDAVITS IN SUPPORT OF A
MOTION ALLEGING THE IMPROPER CONSTITUTION OF A JURY MAY BE ACCEPTED AS
PROOF.  IN THE ABSENCE OF SUCH A STIPULATION, IT IS INCUMBENT ON THE
MOVING PARTY TO INTRODUCE, OR TO OFFER, DISTINCT EVIDENCE IN SUPPORT OF
THE MOTION; THE FORMAL AFFIDAVIT ALONE, EVEN THOUGH UNCONTROVERTED, IS
NOT ENOUGH.  SMITH V. MISSISSIPPI, 162 U.S. 592; TARRANCE V. FLORIDA,
188 U.S. 519; CF. BROWNFIELD V. SOUTH CAROLINA, 189 U.S. 426.  GLASSER,
IN HIS AFFIDAVIT, OFFERED TO PROVE THE ALLEGATIONS CONTAINED THEREIN,
BUT THE RECORD IS BARREN OF ANY ACTUAL TENDER OF PROOF ON HIS PART. 
FURTHERMORE, THERE IS NO INDICATION THAT THE COURT REFUSED TO ENTERTAIN
SUCH AN OFFER, IF IT WERE IN FACT MADE.  ROTH DID NOT EVEN MAKE AN
OFFER OF PROOF IN HIS AFFIDAVIT, AND KRETSKE DID NOT FILE ONE.  WHILE
IT IS ERROR TO REFUSE TO HEAR EVIDENCE OFFERED IN SUPPORT OF
ALLEGATIONS THAT A JURY WAS IMPROPERLY CONSTITUTED, CARTER V. TEXAS,
177 U.S. 442, THERE IS, AND, ON THE STATE OF THIS RECORD, CAN BE, NO
ASSERTION THAT SUCH ERROR WAS HERE COMMITTED.  THE FAILURE OF
PETITIONERS TO PROVE THEIR CONTENTION IS FATAL. 

WE CONCLUDE THAT THE CONVICTION OF GLASSER MUST BE SET ASIDE AND THE
CAUSE AS TO HIM REMANDED TO THE DISTRICT COURT FOR THE EASTERN DIVISION
OF THE NORTHERN DISTRICT OF ILLINOIS FOR A NEW TRIAL.  THE CONVICTIONS
OF PETITIONERS KRETSKE AND ROTH ARE IN ALL RESPECTS UPHELD.  NO. 30,
REVERSED.  NOS. 31 AND 32, AFFIRMED. 

FN1  "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." 

FN2  116 F.2D 690. 

FN3  ILL. REV. STAT., 1939, C. 78, SECS. 1 AND 25. 

FN4  SECTION 1 OF CHAPTER 78 OF THE ILLINOIS REVISED STATUTES, 1939,
APPLIES TO COUNTIES NOT HAVING JURY COMMISSIONERS (INTO WHICH CLASS THE
17 COUNTIES FALL) AND PROVIDES: 

"THE COUNTY BOARD OF EACH COUNTY SHALL, AT OR BEFORE THE TIME OF ITS
MEETING, IN SEPTEMBER, IN EACH YEAR, OR AT ANY TIME THEREAFTER, WHEN
NECESSARY FOR THE PURPOSE OF THIS ACT, MAKE A LIST OF SUFFICIENT
NUMBER, NOT LESS THAN ONE-TENTH OF THE LEGAL VOTERS OF EACH SEX OF EACH
TOWN OR PRECINCT OF THE COUNTY, GIVING THE PLACE OF RESIDENCE OF EACH
NAME ON THE LIST, TO BE KNOWN AS A JURY LIST." 

FN5  ELMER SWANSON TESTIFIED THAT WHEN MONEY WAS PAID TO KRETSKE IN
CONNECTION WITH THE STONY ISLAND STILL CASE KRETSKE SAID THAT PART OF
IT WOULD GO TO "RED OR DAN."  THE WITNESS UNDERSTOOD THIS TO REFER TO
GLASSER. 

FRANK HODOROWICZ TESTIFIED THAT HE GAVE $800 IN CURRENCY TO KRETSKE
TO SECURE FAVORABLE ACTION WITH REGARD TO A STILL AT 124 EAST 118TH
PLACE.  KRETSKE TOLD FRANK HE "HAD TO DELIVER THE MONEY TO RED." 
HODOROWICZ KNEW THIS MEANT GLASSER.  FRANK ATTEMPTED TO "FIX" A CASE
FOR ALBINA ZARRATTINI THROUGH KRETSKE, WHO DECLINED AFTER "HE TALKED TO
RED" BECAUSE ZARRATTINI TALKED TOO MUCH. 

AFTER FRANK HODOROWICZ WAS HIMSELF INDICTED HE WENT TO KRETSKE TO
"FIX" HIS CASE.  KRETSKE TOLD HIM THERE WAS "A LOT OF HEAT" ON THE CASE
AND "THEY GOT GLASSER OVER A BARREL, HE CAN'T DO ANYTHING.  HE HAS TO
PUT YOU IN JAIL." 

WHEN EDWARD DEWES GAVE KRETSKE $100 SO THAT HE WOULD NOT BE INDICTED
IN CONNECTION WITH A STILL AT SPRING GROVE, KRETSKE TOLD HIM "HE WOULD
SEND IT OVER TO THE RED-HEAD IN THE FEDERAL BUILDING."  THE WITNESS
KNEW THIS MEANT GLASSER.  DEWES ALSO TESTIFIED THAT KRETSKE TOLD HIM
THAT HE, KRETSKE, HAD RESIGNED FROM THE UNITED STATES ATTORNEY'S OFFICE
UNDER PRESSURE, AND THAT, "FOR HOLDING THE BAG," HE WAS TO RECEIVE
FAVORS FROM THE "RED-HEAD." 

STANLEY WASIELEWSKI TESTIFIED THAT HE HEARD KRETSKE TELL STANLEY
SLESUR THAT "I WILL TAKE CARE OF EVERYTHING BETWEEN ME AND THE
REDHEAD."  BOTH WASIELEWSKI AND SLESUR WERE INVOLVED IN A STILL AT
DOWNERS GROVE. 

FN6  CONST., ART. III, SEC. 2, CL. 3. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE FRANKFURTER: 

THE CHIEF JUSTICE AND I ARE OF OPINION THAT THE CONVICTION OF GLASSER,
AS WELL AS THAT OF HIS CO-DEFENDANTS, SHOULD STAND. 

IT IS A COMMONPLACE IN THE ADMINISTRATION OF CRIMINAL JUSTICE THAT
THE ACTUALITIES OF A LONG TRIAL ARE TOO OFTEN GIVEN A MERETRICIOUS
APPEARANCE ON APPEAL; THE PERSPECTIVE OF THE LIVING TRIAL IS LOST IN
THE SEARCH FOR ERROR IN A DEAD RECORD.  TO SET ASIDE THE CONVICTION OF
GLASSER (A LAWYER WHO SERVED AS AN ASSISTANT UNITED STATES ATTORNEY FOR
MORE THAN FOUR YEARS) AFTER A TRIAL LASTING LONGER THAN A MONTH, ON THE
GROUND THAT HE WAS DENIED THE BASIC CONSTITUTIONAL RIGHT "TO HAVE THE
ASSISTANCE OF COUNSEL FOR HIS DEFENCE," IS TO GIVE FRESH POINT TO THIS
REGRETTABLY FAMILIAR PHENOMENON.  FOR GLASSER HIMSELF MADE NO SUCH
CLAIM AT ANY OF THE CRITICAL OCCASIONS THROUGHOUT THE PROCEEDINGS. 
NEITHER WHEN THE JUDGE APPOINTED STEWART TO ACT AS COUNSEL FOR BOTH
KRETSKE AND GLASSER, NOR AT ANY TIME DURING THE LONG TRIAL, NOR IN HIS
MOTIONS TO SET ASIDE THE VERDICT AND TO ARREST JUDGMENT, NOR IN HIS
PLEA TO THE COURT BEFORE SENTENCE WAS PASSED, NOR IN SETTING FORTH HIS
GROUNDS FOR APPEAL, DID GLASSER ASSERT, OR MANIFEST IN ANY WAY A
BELIEF, THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.  NOT
UNTIL TWENTY WEEKS AFTER STEWART HAD BECOME COUNSEL FOR THE CO
DEFENDANT KRETSKE, AND FIFTEEN WEEKS AFTER THE TRIAL HAD ENDED, DID
GLASSER DISCOVER THAT HE HAD BEEN DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS.  THIS WAS OBVIOUSLY A LAWYER'S AFTERTHOUGHT.  IT DOES NOT
PROMOTE RESPECT FOR THE BILL OF RIGHTS TO TURN SUCH AN AFTERTHOUGHT
INTO AN IMAGINARY INJURY THAT IS REFLECTED NOWHERE IN THE
CONTEMPORANEOUS RECORD OF THE TRIAL, AND MAKE IT THE BASIS FOR
REVERSAL. 

THE GUARANTEES OF THE BILL OF RIGHTS ARE NOT ABSTRACTIONS.  WHETHER
THEIR SAFEGUARDS OF LIBERTY AND DIGNITY HAVE BEEN INFRINGED IN A
PARTICULAR CASE DEPENDS UPON THE PARTICULAR CIRCUMSTANCES.  THE FACT
THAT GLASSER IS AN ATTORNEY, OF COURSE, DOES NOT MEAN THAT HE IS NOT
ENTITLED TO THE PROTECTION WHICH IS AFFORDED ALL PERSONS BY THE SIXTH
AMENDMENT.  BUT THE FACT THAT HE IS AN ATTORNEY WITH SPECIAL EXPERIENCE
IN CRIMINAL CASES, AND NOT A HELPLESS ILLITERATE, MAY BE - AS WE
BELIEVE IT TO BE HERE - EXTREMELY RELEVANT IN DETERMINING WHETHER HE
WAS DENIED SUCH PROTECTION. 

IN THIS LIGHT, WHAT DOES THE RECORD SHOW?  BEFORE THE TRIAL GOT UNDER
WAY THE TRIAL JUDGE WAS PRESENTED WITH A PROBLEM CREATED BY THE
INABILITY OF ONE OF KRETSKE'S LAWYERS TO TRY THE CASE IN HIS BEHALF. 
KRETSKE WAS DISSATISFIED WITH HIS OTHER LAWYER, WHO PROFESSED TO BE
UNFAMILIAR WITH THE MANY DETAILS OF THE CASE.  UPON KRETSKE'S MOTION
FOR A CONTINUANCE, THE JUDGE WAS FACED WITH THE DIFFICULTY OF AVOIDING
EITHER DELAY OF THE TRIAL OR AN UNDESIRABLE SEVERANCE AS TO KRETSKE. 
ALL THE DEFENDANTS, INCLUDING GLASSER, AND THEIR COUNSEL WERE PRESENT
IN COURT.  THE JUDGE ASKED WHETHER STEWART, WHO HAD BEEN RETAINED BY
GLASSER, WOULD BE PREPARED TO ACT ALSO FOR KRETSKE.  THE RECORD GIVES
NO POSSIBLE GROUND FOR ANY INFERENCE OTHER THAN THAT THIS SUGGESTION
CAME FROM THE JUDGE AS A FAIR AND DISINTERESTED PROPOSAL TO SOLVE A NOT
UNFAMILIAR TRIAL PROBLEM.  IT IS NOT, AND INDEED COULD NOT BE,
CONTENDED THAT THE JUDGE'S SUGGESTION, ADDRESSED TO THE CONSIDERATION
OF THE DEFENDANTS, WAS NOT WHOLLY PROPER.  AND SO, WHEN STEWART RAISED
THE QUESTION OF A POSSIBLE CONFLICT OF INTEREST, AND GLASSER HIMSELF
OBJECTED, SAYING "I WOULD LIKE TO HAVE MY OWN LAWYER REPRESENTING ME,"
THE JUDGE NEITHER REMONSTRATED NOR ARGUED.  HE PROMPTLY DROPPED HIS
SUGGESTION AND DIRECTED KRETSKE'S OTHER LAWYER, WHO WAS PRESENT BUT
WITH WHOM KRETSKE WAS DISSATISFIED, TO STAY IN THE CASE UNTIL KRETSKE
COULD HIRE SOMEONE TO HIS SATISFACTION.  THE FOOTNOTE SETS FORTH THE
FULL TEXT OF THIS EPISODE.  FN1 

THERE ENSUED A LONG DISCUSSION RELATING TO THE REPRESENTATION OF
KRETSKE.  DURING THIS DISCUSSION THE JUDGE NEVER AGAIN ADVERTED TO HIS
ORIGINAL SUGGESTION THAT STEWART ALSO REPRESENT KRETSKE.  KRETSKE
INTERRUPTED, AND THERE THEN OCCURRED IN GLASSER'S PRESENCE WHAT IS NOW
MADE THE BASIS FOR REVERSAL: 

"MR. KRETSKE:  I CAN END THIS.  I JUST SPOKE TO MR. STEWART AND HE
SAID IF YOUR HONOR WISHES TO APPOINT HIM I THINK WE CAN ACCEPT THE
APPOINTMENT. 

"MR. STEWART:  AS LONG AS THE COURT KNOWS THE SITUATION.  I THINK
THERE IS SOMETHING TO THE FACT THAT THE JURY KNOWS WE CAN'T CONTROL
THAT. 

"MR. MCDONNELL:  THEN THE ORDER IS VACATED? 

"THE COURT:  THE ORDER APPOINTING MR. MCDONNELL IS VACATED AND MR.
STEWART IS APPOINTED ATTORNEY FOR MR. KRETSKE." 

IT IS CLEAR, THEREFORE, THAT THIS ARRANGEMENT WAS VOLUNTARILY ASSUMED
BY THE PARTIES, AND WAS NOT PRESSED UPON THEM BY THE JUDGE.  GLASSER,
WHO WAS PRESENT, RAISED NO OBJECTION AND MADE NO COMMENT. 

THE REQUIREMENT THAT TIMELY OBJECTIONS BE MADE TO PREJUDICIAL RULINGS
OF A TRIAL JUDGE OFTEN HAS THE SEMBLANCE OF TRAPS FOR THE UNWARY AND
UNINFORMED.  BUT GLASSER WAS NEITHER UNWARY NOR UNINFORMED.  HIS
EXPERIENCE IN THE PROSECUTION OF CRIMINAL CASES MAKES HIS SILENCE HERE
MOST SIGNIFICANT.  NOR WAS THIS THE LAST OPPORTUNITY HE HAD TO INDICATE
THAT EMBARRASSMENT WAS BEING CAUSED HIM BY STEWART'S REPRESENTATION OF
KRETSKE, LET ALONE THAT HE DEEMED IT A DENIAL OF HIS CONSTITUTIONAL
RIGHTS.  IF HE WERE LABORING UNDER A HANDICAP, HE WOULD HAVE MADE IT
KNOWN AT THE TIMES WHEN HE FELT IT MOST - DURING THE LONG COURSE OF THE
TRIAL, IN HIS MOTIONS FOR NEW TRIAL AND IN ARREST OF JUDGMENT, IN HIS
EXTENDED PLEA TO THE COURT BEFORE SENTENCE WAS PASSED, AND FINALLY
WHEN, ON APRIL 26, 1940, OVER HIS OWN SIGNATURE HE GAVE TWENTY GROUNDS
FOR APPEAL BUT DID NOT MENTION THIS ONE.  THE LONG PERIOD OF
UNINTERRUPTED SILENCE CONCERNING HIS AFTER-DISCOVERED INJURY NEGATIVES
ITS EXISTENCE.  WE FIND IT DIFFICULT TO KNOW WHAT ACQUIESCENCE IN A
JUDGE'S RULING COULD BE, IF THIS RECORD DOES NOT SHOW IT.  FN2    A
FAIR READING OF THE RECORD THUS PRECLUDES THE INFERENCE THAT THE JUDGE
FORCED UPON GLASSER A SITUATION WHICH HOBBLED HIM IN HIS DEFENSE.  TO
BE SURE, HE DID SAY AT FIRST THAT HE WOULD LIKE HIS LAWYER TO REPRESENT
HIM ALONE.  BUT HE PLAINLY ACQUIESCED IN THE ARRANGEMENT WHICH, AFTER
CONSULTATION AT THE DEFENSE TABLE, WAS PROPOSED TO THE TRIAL JUDGE AND
WHICH THE JUDGE ACCEPTED.  A CONSPIRACY TRIAL PRESENTS COMPLICATED
QUESTIONS OF STRATEGY FOR THE DEFENSE.  THERE ARE ADVANTAGES AND
DISADVANTAGES IN HAVING SEPARATE COUNSEL FOR EACH DEFENDANT OR A SINGLE
COUNSEL FOR MORE THAN ONE.  JOINT REPRESENTATION IS A MEANS OF INSURING
AGAINST RECIPROCAL RECRIMINATION.  A COMMON DEFENSE OFTEN GIVES
STRENGTH AGAINST A COMMON ATTACK.  THESE CONSIDERATIONS COULD NOT HAVE
ESCAPED A LAWYER OF GLASSER'S EXPERIENCE.  HIS THOROUGH ACQUIESCENCE IN
THE PROCEEDINGS CANNOT BE RECONCILED WITH A DENIAL OF HIS
CONSTITUTIONAL RIGHTS. 

A BELATED SHOWING THAT GLASSER WAS ACTUALLY PREJUDICED BY THE JUDGE'S
ACTION IS NOW ATTEMPTED.  THIS HAS TWO ASPECTS:  (1) STEWART'S FAILURE
TO CROSS-EXAMINE THE WITNESS BRANTMAN, AND (2) HIS FAILURE TO MAKE
OBJECTIONS ON BEHALF OF GLASSER TO THE ADMISSION OF CERTAIN EVIDENCE. 

(1)  THE BRANTMAN EPISODE EVAPORATES UPON EXAMINATION.  HIS ONLY
TESTIMONY RELATING TO GLASSER WAS THAT HE DID NOT KNOW HIM.  THIS WAS
BROUGHT OUT FULLY AND DISTINCTLY ON DIRECT EXAMINATION.  FN3  THAT IT
HAD BEEN AMPLY ESTABLISHED, GLASSER HIMSELF RECOGNIZED IN HIS ADDRESS
TO THE COURT BEFORE SENTENCE.  IT IS DIFFICULT TO UNDERSTAND HOW CROSS
EXAMINATION WOULD HAVE BEEN OF ANY FURTHER BENEFIT TO GLASSER.  IN ANY
EVENT, THE RECORD SHOWS THAT STEWART ABSTAINED FROM CROSS-EXAMINING
BRANTMAN NOT BECAUSE HE FELT HIMSELF INHIBITED BY ANY CONFLICT OF
INTEREST BUT BECAUSE, AS HE TOLD THE JUDGE AFTER VERDICT, HE THOUGHT
THAT ON CROSS-EXAMINATION BRANTMAN "WOULD BE TELLING WORSE LIES." 

(2)  IT IS SAID THAT STEWART'S FAILURE TO OBJECT, ON BEHALF OF
GLASSER, TO CERTAIN EVIDENCE IN ITSELF PROVES THAT STEWART FELT HIMSELF
RESTRICTED - WHOLLY REGARDLESS OF THE ADMISSIBILITY OF SUCH EVIDENCE. 
NO EVIDENCE INADMISSIBLE AGAINST GLASSER IS AVOUCHED.  INDEED WE ARE
TOLD THAT IT IS "BESIDE THE POINT" THAT THE EVIDENCE IS ADMISSIBLE. 
CAN IT BE THAT A LAWYER WHO FAILS TO MAKE FRIVOLOUS OBJECTIONS TO
ADMISSIBLE EVIDENCE IS THEREBY DENYING HIS CLIENT THE CONSTITUTIONAL
RIGHT TO THE ASSISTANCE OF COUNSEL? 

FN1  "MR. STEWART:  MAY I MAKE THIS STATEMENT ABOUT THAT, JUDGE?  WE
WERE TALKING ABOUT IT - WE WERE ALL TRYING TO GET ALONG TOGETHER.  I
FILED AN AFFIDAVIT, OR I DID ON THE BEHALF OF MR. GLASSER, POINTING OUT
SOME LITTLE INCONSISTENCY IN THE DEFENSE, AND THE MAIN PART OF IT IS
THIS:  THERE WILL BE CONVERSATIONS HERE WHERE MR. GLASSER WASN'T
PRESENT, WHERE PEOPLE HAVE SEEN MR. KRETSKE AND THEY HAVE TALKED ABOUT,
THAT THEY GAVE MONEY TO TAKE CARE OF GLASSER, THAT IS NOT BINDING ON
MR. GLASSER, AND THERE IS A DIVERGENCY THERE, AND MR. GLASSER FEELS
THAT IF I WOULD REPRESENT MR. KRETSKE THE JURY WOULD GET AN IDEA THAT
THEY ARE TOGETHER, AND ALL THE EVIDENCE - 

THE COURT:  HOW WOULD IT BE IF I APPOINTED YOU AS ATTORNEY FOR MR.
KRETSKE? 

MR. STEWART:  THAT WOULD BE FOR YOUR HONOR TO DECIDE. 

THE COURT:  I KNOW YOU ARE LOOKING OUT FOR EVERY POSSIBLE LEGITIMATE
DEFENSE THERE IS.  NOW, IF THE JURY UNDERSTOOD THAT WHILE YOU WERE
RETAINED BY MR. GLASSER THE COURT APPOINTED YOU AT THIS LATE HOUR TO
REPRESENT KRETSKE, WHAT WOULD BE THE EFFECT OF THE JURY ON THAT? 

MR. STEWART:  YOUR HONOR COULD JUDGE THAT AS WELL AS I COULD. 

THE COURT:  I THINK IT WOULD BE FAVORABLE TO THE DEFENDANT KRETSKE. 

MR. GLASSER:  I THINK IT WOULD BE TOO, IF HE HAD MR. STEWART.  THAT'S
THE REASON I GOT MR. STEWART, BUT IF A DEFENDANT WHO HAS A LAWYER
REPRESENTING HIM IS ALLOWED TO ENTER AN OBJECTION, I WOULD LIKE TO
ENTER MY OBJECTION.  I WOULD LIKE TO HAVE MY OWN LAWYER REPRESENTING
ME. 

THE COURT:  MR. MCDONNELL, YOU WILL HAVE TO STAY IN IT UNTIL MR.
KRETSKE GETS ANOTHER LAWYER, IF HE ISN'T SATISFIED WITH YOU.  (TO MR.
KRETSKE) MR. KRETSKE, IF YOU ARE NOT SATISFIED WITH MR. MCDONNELL, YOU
WILL HAVE TO HIRE ANOTHER LAWYER.  WE WILL PROCEED WITH THE SELECTION
OF THE JURY NOW." 

FN2  STEWART WAS DESIGNATED TO REPRESENT KRETSKE ON FEBRUARY 6, 1940,
WHEN THE TRIAL BEGAN.  THE JURY BROUGHT IN ITS VERDICT ON MARCH 8.  THE
MOTIONS FOR NEW TRIAL AND IN ARREST OF JUDGMENT WERE DENIED ON APRIL
23, AND ON THE SAME DAY THE DEFENDANTS WERE SENTENCED.  ON APRIL 26,
GLASSER FILED A NOTICE SETTING FORTH TWENTY GROUNDS OF APPEAL WITHOUT
SUGGESTING THAT HE HAD BEEN DENIED HIS RIGHT TO THE ASSISTANCE OF
COUNSEL.  ON JUNE 27, GLASSER AND THE TWO OTHER PETITIONERS FILED A
"JOINT AND SEVERAL ASSIGNMENT OF ERRORS," FOR THE FIRST TIME ASSERTING
THAT:  "THE COURT ERRED IN APPOINTING THE EMPLOYED COUNSEL OF DEFENDANT
DANIEL D. GLASSER TO REPRESENT DEFENDANT NORTON I. KRETSKE, TO THE
PREJUDICE OF THE DEFENDANTS." 

FN3  "Q.  DO YOU KNOW MR. GLASSER? 

A. NO, SIR. 

Q. DID YOU EVER SEE HIM BEFORE THE TIME YOU GOT THIS MONEY? 

A. I HAVE SEEN HIM, I THINK I MIGHT HAVE BEEN INTRODUCED TO THE MAN
ONCE, BUT I DON'T THINK IT WAS BEFORE I GOT THAT MONEY. 

Q. YOU NEVER HAD ANY CONVERSATION WITH HIM IN ANY EVENT? 

A. NO, SIR. 

Q. WHAT? 

A. NO, SIR." 
..END :















HALLIDAY V. UNITED STATES, 315 U.S. 94 


NO. 101.  ARGUED JANUARY 5, 1942.  - DECIDED JANUARY 19, 1942.  - 116
F.2D 812, REVERSED. 


1.  EVIDENCE HELD SUFFICIENT TO GO TO THE JURY ON THE QUESTION WHETHER
PETITIONER, HOLDER OF A WAR RISK INSURANCE POLICY EXPIRING OCTOBER 31,
1920, WAS TOTALLY AND PERMANENTLY DISABLED ON OR BEFORE THAT DAY, AND
THEREAFTER.  P. 96. 

2.  IN PROVING THAT THE INSURED BECAME TOTALLY AND PERMANENTLY
DISABLED BEFORE THE EXPIRATION OF HIS WAR RISK CONTRACT, EVIDENCE OF
HIS CONDUCT AND CONDITION DURING ENSUING YEARS IS RELEVANT.  P. 98. 

3.  IN AN ACTION ON A WAR RISK INSURANCE POLICY INFERENCES MAY BE
DRAWN UNFAVORABLE TO A CLAIM OF TOTAL AND PERMANENT INJURY FROM THE
FAILURE OF THE INSURED TO SECURE MEDICAL TREATMENT WHICH HE MIGHT HAVE
HAD.  P. 99. 

4.  IN AN ACTION ON A WAR RISK INSURANCE POLICY WHEREIN IT WAS
CLAIMED THAT THE INSURED BECAME TOTALLY AND PERMANENTLY DISABLED BEFORE
OCTOBER 31, 1920, THE DATE OF THE EXPIRATION OF THE POLICY, AND
REMAINED SO, IT WAS ERROR FOR THE DISTRICT COURT TO EXCLUDE EVIDENCE OF
HIS CONDITION SUBSEQUENTLY TO DECEMBER 9, 1935, WHEN HE WAS ADJUDGED
INCOMPETENT BY A COUNTY PROBATE COURT.  REFUSAL TO ADMIT EVIDENCE OF
HIS CONDITION AFTER THAT DATE, THOUGH ERRONEOUS, WAS NOT PREJUDICIAL TO
THE GOVERNMENT'S CASE.  P. 100. 

HALLIDAY V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 314 U.S. 588, TO REVIEW A JUDGMENT WHICH REVERSED A
JUDGMENT OF THE DISTRICT COURT IN FAVOR OF THE PLAINTIFF HALLIDAY IN AN
ACTION ON A WAR RISK INSURANCE POLICY. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT BY THE PETITIONER, THROUGH HIS COMMITTEE, ON A
$10,000 WAR RISK INSURANCE POLICY.  THE COMPLAINT ALLEGED THAT
PETITIONER HAD BECOME PERMANENTLY AND TOTALLY DISABLED BY APRIL 2,
1919, THE DATE ON WHICH HE WAS HONORABLY DISCHARGED BY THE ARMY.  THE
INSURANCE CONTRACT WAS IN EFFECT ON THAT DATE AND REMAINED IN EFFECT
UNTIL OCTOBER 31, 1920.  AT THE CLOSE OF ALL THE EVIDENCE, THE
GOVERNMENT'S MOTION FOR A DIRECTED VERDICT WAS DENIED.  THE JURY
RETURNED A VERDICT FOR PETITIONER AND FOUND THAT HE HAD BECOME
PERMANENTLY AND TOTALLY DISABLED BY APRIL 2, 1919.  THE GOVERNMENT
MOVED FOR A NEW TRIAL, THE MOTION WAS DENIED, AND JUDGMENT WAS ENTERED
ON THE VERDICT.  ON APPEAL THE CIRCUIT COURT OF APPEALS REVERSED.  116
F.2D 812.  IT HELD THAT THERE WAS INSUFFICIENT EVIDENCE TO GO TO THE
JURY AND IT REMANDED THE CASE TO THE DISTRICT COURT WITH DIRECTIONS TO
SET ASIDE THE VERDICT AND TO ENTER JUDGMENT IN FAVOR OF THE
GOVERNMENT. 

PETITIONER SOUGHT CERTIORARI ON TWO GROUNDS:  THAT THE CIRCUIT COURT
OF APPEALS HAD ERRED IN HOLDING THAT THERE WAS INSUFFICIENT EVIDENCE
FOR THE JURY; AND THAT, EVEN IF THE EVIDENCE WAS INSUFFICIENT, UNDER
RULE 50(B) OF THE RULES OF CIVIL PROCEDURE  FN1  THE CIRCUIT COURT WAS
WITHOUT POWER TO DIRECT ENTRY OF JUDGMENT FOR THE GOVERNMENT WITHOUT A
NEW TRIAL.  WE GRANTED CERTIORARI, AS WE HAD IN BERRY V. UNITED STATES
FN2  AND CONWAY V. O'BRIEN,  FN3  BECAUSE OF THE IMPORTANCE OF THE
QUESTION CONCERNING RULE 50(B).  HOWEVER, AS IN THOSE CASES, WE DO NOT
REACH THAT PROBLEM, SINCE WE ARE OF THE OPINION THAT THE EVIDENCE WAS
SUFFICIENT TO SUPPORT THE VERDICT. 

THE INSURANCE CONTRACT, THE ACT OF CONGRESS WHICH AUTHORIZED IT,  FN4
AND THE REGULATIONS ISSUED PURSUANT TO THAT ACT  FN5  OBLIGED
PETITIONER TO PROVE THAT HE WAS PERMANENTLY AND TOTALLY DISABLED ON OR
BEFORE OCTOBER 31, 1920, THE DATE OF EXPIRATION OF THE CONTRACT.  WE
THINK THERE WAS EVIDENCE FROM WHICH, IF BELIEVED, THE JURY COULD HAVE
DRAWN THIS CONCLUSION. 

PERIOD PRIOR TO OCTOBER 31, 1920.  PETITIONER APPEARED TO HIS FRIENDS
AND NEIGHBORS AS A NORMAL AND HEALTHY YOUNG MAN BEFORE HIS INDUCTION
INTO THE ARMY ON JUNE 23, 1918.  IN AUGUST HE SAILED FOR FRANCE, AND IN
SEPTEMBER HE INJURED HIS BACK AND WAS ADMITTED TO A CAMP HOSPITAL. 
FROM THAT TIME UNTIL HIS DISCHARGE, HE WAS EXAMINED ON SEVERAL
OCCASIONS BY ARMY PHYSICIANS.  THEIR REPORTS REVEAL THAT HE WAS "VERY
NERVOUS" AND THAT HE GAVE "IMPRESSIONS OF NEURASTHENIA." 

WHILE MUCH OF THE TESTIMONY WAS NOT SPECIFIC AS TO TIME, SEVERAL OF
THE WITNESSES DESCRIBED THE APPEARANCE AND BEHAVIOR OF THE PETITIONER
IMMEDIATELY FOLLOWING HIS DISCHARGE IN APRIL, 1919.  THE JURY WAS
CLEARLY WARRANTED IN REGARDING THEIR TESTIMONY AS APPLICABLE TO THE
PERIOD DURING WHICH THE INSURANCE POLICY REMAINED IN FORCE. 

DR. J. N. LAND, A GENERAL PRACTITIONER WHO HAD BEEN "THE FAMILY
PHYSICIAN OF THE HALLIDAY FAMILY" AND WHO HAD KNOWN PETITIONER FROM
INFANCY, TESTIFIED THAT, FROM 1919 ON, PETITIONER WAS THE VICTIM OF
PSYCHONEUROSIS AND HYPOCHONDRIA.  THESE ILLS CAUSED HIM TO TALK ABOUT
HIMSELF CONSTANTLY, TO IMAGINE THE EXISTENCE OF SYMPTOMS, AND TO BECOME
VERY UNFRIENDLY AND SUSPICIOUS.  THE WITNESS "WOULD NOT HAVE ADVISED
HIM TO DO ANY WORK SINCE HE HAS BEEN OUT OF THE ARMY," AND WAS OF THE
OPINION THAT WORK "WOULD HAVE BEEN HARMFUL TO HIM" AND WOULD HAVE
RESULTED IN "A COMPLETE COLLAPSE."  AT THE TIME OF HIS DISCHARGE FROM
THE ARMY, THE DOCTOR "DIDN'T HOLD ANY HOPE FOR HIS RECOVERY."  THE
CIRCUIT COURT OF APPEALS CONSIDERED THIS TESTIMONY OF "LITTLE PROBATIVE
FORCE," CHIEFLY BECAUSE OF DR. LAND'S ADMISSION THAT HE HAD NOT
EXAMINED PETITIONER PROFESSIONALLY UNTIL ABOUT 1932.  BUT THE DOCTOR
TESTIFIED THAT HE HAD SEEN PETITIONER "ON THE STREETS OR IN A
DRUGSTORE" "AT LEAST TWO OR THREE TIMES A YEAR, POSSIBLY MORE ...  ALL
THE WAY FROM 1919."  PETITIONER TALKED TO HIM "EVERY CHANCE HE HAS GOT
SINCE 1919."  IN THE COURSE OF THESE CONVERSATIONS PETITIONER WOULD
DESCRIBE HIS CONDITION AT LENGTH AND ASK THE WITNESS TO DO SOMETHING
FOR HIM.  WHILE THE CIRCUIT COURT MAY HAVE REGARDED THE PROBATIVE FORCE
OF THIS EVIDENCE AS "LITTLE," IT WAS CLEARLY PROPER FOR THE JURY TO
CONCLUDE FROM IT AND FROM THEIR UNDERSTANDING OF SMALL TOWN LIFE THAT
THESE ENCOUNTERS AND HIS EARLIER INTIMACY WITH THE HALLIDAY FAMILY
AFFORDED DR. LAND AN OPPORTUNITY TO FORM A RELIABLE ESTIMATE OF
PETITIONER'S CONDITION. 

OTHER WITNESSES, INCLUDING HIS WIFE AND BROTHERS AND NEIGHBORS,
TESTIFIED THAT WHEN HE RETURNED FROM THE WAR PETITIONER "WAS SUSPICIOUS
OF EVERYBODY," "DIDN'T SEEM TO BE THE SAME MAN," "SEEMED TO BE A MAN
THAT DIDN'T HAVE A GRIP ON HIMSELF," "DIDN'T HAVE THE BEST CONTROL OF
HIMSELF."  THEY DESCRIBED HIM AS "A PHYSICAL WRECK," "NERVOUS," "NOT
RIGHT," "A COMPLETE PHYSICAL AND MENTAL WRECK, VERY BADLY TORN UP
PHYSICALLY AND MENTALLY."  AND ONE BROTHER TESTIFIED THAT PETITIONER'S
CONDITION UPON HIS RETURN WAS "PRACTICALLY THE SAME AS IT IS TODAY." 

PERIOD FOLLOWING OCTOBER 31, 1920.  WHILE IT IS TRUE THAT TOTAL AND
PERMANENT DISABILITY PRIOR TO THE EXPIRATION OF THE INSURANCE CONTRACT
MUST BE ESTABLISHED, EVIDENCE AS TO PETITIONER'S CONDUCT AND CONDITION
DURING THE ENSUING YEARS IS CERTAINLY RELEVANT.  IT IS A COMMONPLACE
THAT ONE'S STATE OF MIND IS NOT ALWAYS DISCERNIBLE IN IMMEDIATE EVENTS
AND APPEARANCES, AND THAT ITS MEASUREMENT MUST OFTEN AWAIT A SLOW
UNFOLDING.  THIS DIFFICULTY OF DIAGNOSIS AND THE ESSENTIAL CHARITY OF
ORDINARY MEN MAY FREQUENTLY COMBINE TO DELAY THE FRANK RECOGNITION OF A
DISEASED MIND.  MOREOVER, THE TOTALITY AND PARTICULARLY THE PERMANENCE
OF THE DISABILITY AS OF 1920 ARE SUSCEPTIBLE OF NO BETTER PROOF THAN
THAT TO BE FOUND IN PETITIONER'S PERSONAL HISTORY FOR THE ENSUING 15
YEARS.  FN6 

PETITIONER'S WIFE TESTIFIED THAT DURING THIS PERIOD HE WAS UNABLE TO
DO A FULL DAY'S WORK, THAT HE THREATENED TO COMMIT SUICIDE AND TO KILL
HER AND THEIR CHILDREN, AND THAT HE FEARED ATTEMPTS TO POISON HIM.  SHE
STATED THAT, ALTHOUGH THEY RENTED ONE FARM AND LATER BOUGHT BUT NEVER
PAID FOR ANOTHER, THEY HADN'T "DONE ANY FARMING MUCH" AND HAD "JUST HAD
LITTLE PATCHES," AND THAT SHE AND HIRED HANDS HAD BEEN RESPONSIBLE EVEN
FOR THIS LIMITED ENTERPRISE.  DR. LAND TESTIFIED THAT THE MENTAL
DISORDER HAD GRADUALLY PROGRESSED SINCE THE WAR. 

THE REPORTS OF GOVERNMENT MEDICAL EXAMINERS AND THE RECORDS OF
GOVERNMENT HOSPITALS REVEAL A DIAGNOSIS OF HYPOCHONDRIA ON FEBRUARY 14,
1921.  AND ON NOVEMBER 24, 1925 PETITIONER WAS FOUND TO BE
PSYCHONEUROTIC AND NEURASTHENIC.  ON THAT DATE, HE INFORMED THE MEDICAL
EXAMINER THAT HE WAS UNABLE TO WORK, THAT HE LACKED CONFIDENCE, AND
THAT HE WAS OFTEN DEPRESSED AND SEIZED BY FEAR.  HE COMPLAINED OF "A
GREAT MANY THINGS WHICH PHYSICAL EXAMINATION FAILS TO REVEAL."  REPORTS
OF SUBSEQUENT EXAMINATIONS UP TO AND INCLUDING APRIL 11, 1935, CONTAIN
SIMILAR INFORMATION AND DIAGNOSES.  FINALLY ON DECEMBER 9, 1935, AT THE
INSTANCE OF DR. LAND, PETITIONER WAS ADJUDGED INCOMPETENT BY A COUNTY
PROBATE COURT AND HIS WIFE WAS APPOINTED AS A COMMITTEE TO HANDLE HIS
AFFAIRS. 

IN SUPPORT OF ITS CONCLUSION, THE CIRCUIT COURT OF APPEALS OBSERVED
THAT "INSURED'S FAILURE TO SECURE ADEQUATE HOSPITALIZATION" LEAVES IT
"HIGHLY SPECULATIVE WHETHER INSURED'S AILMENTS, WHATEVER THESE MAY HAVE
BEEN, WOULD NOT HAVE BEEN CURED BY THE MEDICAL TREATMENT WHICH WAS IN
HIS POTENTIAL GRASP."  THERE CAN BE NO DOUBT THAT EVIDENCE OF THE
FAILURE OF ATTEMPTED TREATMENT WOULD HAVE BEEN HIGHLY PERSUASIVE OF THE
PERMANENCE OF PETITIONER'S DISABILITY.  AND THE JURY WAS ENTITLED TO
DRAW INFERENCES UNFAVORABLE TO HIS CLAIM FROM THE ABSENCE OF SUCH
EVIDENCE.  HOWEVER, THIS WAS BUT ONE OF THE MANY FACTORS WHICH THE JURY
WAS FREE TO CONSIDER IN REACHING ITS VERDICT.  IN THE FACE OF EVIDENCE
OF A MENTAL DISORDER OF MORE THAN 15 YEARS DURATION, IT CAN HARDLY BE
SAID THAT THE ABSENCE OF THIS SINGLE ELEMENT OF PROOF WAS FATAL TO
PETITIONER'S CLAIM.  MOREOVER, INFERENCES FROM FAILURE TO SEEK
HOSPITALIZATION AND TREATMENT MUST BE DRAWN WITH THE UTMOST CAUTION IN
CASES OF MENTAL DISORDER, WHERE, AS HERE, THERE IS REASON TO BELIEVE
THAT ONE OF THE MANIFESTATIONS OF THE VERY SICKNESS ITSELF IS FEAR AND
SUSPICION OF HOSPITALS AND INSTITUTIONS. 

ALTHOUGH IT WAS UNNECESSARY TO ITS DISPOSITION OF THE CASE, THE
CIRCUIT COURT OF APPEALS CONSIDERED AND NOTED ITS AGREEMENT WITH THE
GOVERNMENT'S OBJECTION TO THE DISTRICT COURT'S REFUSAL TO ADMIT
EVIDENCE OF PETITIONER'S CONDITION SUBSEQUENT TO DECEMBER 9, 1935, THE
DATE ON WHICH PETITIONER WAS ADJUDGED INCOMPETENT BY THE COUNTY PROBATE
COURT.  FN7  WE THINK THAT THE DISTRICT COURT'S RULING WAS ERRONEOUS,
BUT THERE IS NOTHING TO SHOW THAT IT WAS SERIOUSLY PREJUDICIAL TO THE
GOVERNMENT.  NEITHER IN THE DISTRICT COURT NOR IN THIS COURT HAS THE
GOVERNMENT SUGGESTED ITS ABILITY TO PRODUCE EVIDENCE FROM THE PERIOD
SUBSEQUENT TO 1935 WHICH WOULD SUBSTANTIALLY ALTER THE STATE OF THE
RECORD. 

THE CASE IS REMANDED TO PERMIT THE REINSTATEMENT OF THE JUDGMENT OF
THE DISTRICT COURT.  REVERSED. 

FN1  "WHENEVER A MOTION FOR A DIRECTED VERDICT MADE AT THE CLOSE OF
ALL THE EVIDENCE IS DENIED OR FOR ANY REASON IS NOT GRANTED, THE COURT
IS DEEMED TO HAVE SUBMITTED THE ACTION TO THE JURY SUBJECT TO A LATER
DETERMINATION OF THE LEGAL QUESTIONS RAISED BY THE MOTION.  WITHIN 10
DAYS AFTER THE RECEPTION OF A VERDICT, A PARTY WHO HAS MOVED FOR A
DIRECTED VERDICT MAY MOVE TO HAVE THE VERDICT AND ANY JUDGMENT ENTERED
THEREON SET ASIDE AND TO HAVE JUDGMENT ENTERED IN ACCORDANCE WITH HIS
MOTION FOR A DIRECTED VERDICT; OR IF A VERDICT WAS NOT RETURNED SUCH
PARTY, WITHIN 10 DAYS AFTER THE JURY HAS BEEN DISCHARGED, MAY MOVE FOR
JUDGMENT IN ACCORDANCE WITH HIS MOTION FOR A DIRECTED VERDICT.  A
MOTION FOR A NEW TRIAL MAY BE JOINED WITH THIS MOTION, OR A NEW TRIAL
MAY BE PRAYED FOR IN THE ALTERNATIVE.  IF A VERDICT WAS RETURNED THE
COURT MAY ALLOW THE JUDGMENT TO STAND OR MAY REOPEN THE JUDGMENT AND
EITHER ORDER A NEW TRIAL OR DIRECT THE ENTRY OF JUDGMENT AS IF THE
REQUESTED VERDICT HAD BEEN DIRECTED.  IF NO VERDICT WAS RETURNED THE
COURT MAY DIRECT THE ENTRY OF JUDGMENT AS IF THE REQUESTED VERDICT HAD
BEEN DIRECTED OR MAY ORDER A NEW TRIAL." 

FN2  312 U.S. 450. 

FN3  312 U.S. 492. 

FN4  WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, C. 105, SEC. 402, 40
STAT. 409. 

FN5  BULLETIN NO. 1, TREASURY DEPARTMENT, REGULATIONS & PROCEDURE,
UNITED STATES VETERANS' BUREAU, VOLUME II, PP. 1233-1237. 

FN6  THE TRIAL JUDGE INSTRUCTED THE JURY:  "ALL OF THIS EVIDENCE AS
TO HIS CONDITION IN LATER YEARS, HOWEVER, IS TO BE CONSIDERED BY YOU
FOR THE PURPOSE OF DETERMINING WHETHER THE INSURED BECAME IN FACT
PERMANENTLY AND TOTALLY DISABLED ON OR BEFORE APRIL 2, 1919, OR BEFORE
AUGUST, SEPTEMBER, OR OCTOBER, 1920." 

FN7  THE SAME RULING WAS EMBODIED IN THE INSTRUCTIONS TO THE JURY. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :























SOUTHPORT CO. V. LABOR BOARD, 315 U.S. 100 


NO. 67.  ARGUED JANUARY 5, 1942.  - DECIDED JANUARY 19, 1942.  - 117
F.2D 90, AFFIRMED. 


1.  AN APPLICATION TO THE CIRCUIT COURT OF APPEALS, UNDER SEC. 10(E)
OF THE NATIONAL LABOR RELATIONS ACT, FOR LEAVE TO ADDUCE ADDITIONAL
EVIDENCE BEFORE THE BOARD, IS ADDRESSED TO THE SOUND DISCRETION OF THE
COURT.  P. 104. 

2.  A LABOR BOARD ORDER REQUIRED A TEXAS CORPORATION, ITS OFFICERS,
AGENTS, SUCCESSORS AND ASSIGNS, TO DESIST FROM CERTAIN UNFAIR LABOR
PRACTICES; TO OFFER REINSTATEMENT TO EMPLOYEES FOUND TO HAVE BEEN
DISCRIMINATORILY DISCHARGED; TO GRANT THEM BACK PAY; TO POST CERTAIN
NOTICES AT ITS TEXAS REFINERY, ETC.  PENDING A PETITION OF THE BOARD TO
ENFORCE THE ORDER, THE CORPORATION APPLIED TO THE COURT UNDER SEC.
10(E) OF THE ACT FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE BEFORE THE
BOARD, AVERRING THAT IT HAD DISTRIBUTED ALL OF ITS ASSETS TO ITS FOUR
STOCKHOLDERS AS A LIQUIDATING DIVIDEND, AND THAT TWO OF THEM, WHO HAD
RECEIVED THE TEXAS REFINERY IN WHICH THE UNFAIR LABOR PRACTICES WERE
EMPLOYED, HAD CONVEYED IT TO A NEWLY ORGANIZED DELAWARE CORPORATION
WHOSE STOCKHOLDERS WERE AT NO TIME STOCKHOLDERS OF THE EMPLOYER
CORPORATION; AND LATER, IN ITS ANSWER, IT ALLEGED THAT IT HAD VERY
RECENTLY BEEN DISSOLVED PURSUANT TO THE STATUTES OF TEXAS AND PRAYED A
DISMISSAL OF THE BOARD'S PETITION UPON THAT GROUND.  HELD, UNDER THESE
CIRCUMSTANCES AND OTHERS DISCLOSED BY THE RECORD, THAT DENIAL OF THE
APPLICATION TO ADDUCE ADDITIONAL EVIDENCE WAS NOT ERROR.  P. 104. 

SOUTHPORT PETROLEUM CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 313 U.S. 558, TO REVIEW A DECREE DIRECTING THE
ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, AND
THEREIN DENYING A MOTION FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER, A TEXAS CORPORATION, WAS ORDERED BY THE NATIONAL
LABOR RELATIONS BOARD IN AUGUST OF 1938 TO CEASE AND DESIST FROM UNFAIR
LABOR PRACTICES; FN1  TO OFFER TO REINSTATE THREE EMPLOYEES FOUND TO
HAVE BEEN DISCRIMINATORILY DISCHARGED, AND TO PAY THEM BACK PAY FOR THE
PERIOD FROM THE TIME OF DISCHARGE TO THE DATE OF THE OFFER OF
REINSTATEMENT, LESS EARNINGS DURING SUCH PERIOD; AND TO POST CERTAIN
NOTICES AT ITS TEXAS CITY REFINERY, WHERE THE UNFAIR LABOR PRACTICES
HAD BEEN EMPLOYED. 

THE PETITIONER HAS NEVER OBEYED ANY OF THE AFFIRMATIVE DIRECTIONS OF
THE ORDER.  IN JUNE OF 1939 IT ENTERED INTO A WRITTEN STIPULATION WITH
THE BOARD THAT IT WOULD OBEY THE ORDER EXCEPT AS IT RELATED TO BACK
PAY, AND THE BOARD STIPULATED ON ITS PART THAT IT WOULD ACCEPT THE
PERFORMANCE SO PROMISED AS SUFFICIENT COMPLIANCE WITH ITS ORDER.  BUT
THE PETITIONER NO MORE REGARDED ITS OWN PROMISE THAN IT HAD THE BOARD'S
COMMAND.  IT FINALLY CEASED EVEN TO ANSWER COMMUNICATIONS FROM THE
BOARD, AND THE LATTER, IN APRIL OF 1940, FILED ITS PETITION WITH THE
CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT FOR ENFORCEMENT OF ITS
ORDER. 

THE PETITIONER THEN BEGAN THE PLEAS TO THAT COURT, DENIAL OF WHICH IT
SAYS ARE ERRORS.  NEARLY FOUR MONTHS AFTER THE BOARD HAD FILED ITS
PETITION, THE PRESENT PETITIONER FILED AN APPLICATION, UNDER SEC. 10(E)
OF THE NATIONAL LABOR RELATIONS ACT,  FN2  TO ADDUCE ADDITIONAL
EVIDENCE BEFORE THE BOARD.  THE APPLICATION STATED ON THE OATH OF
PETITIONER'S PRESIDENT THAT IN JUNE OF 1939, THREE DAYS AFTER
PETITIONER HAD EXECUTED THE STIPULATION OF OBEDIENCE TO THE BOARD'S
ORDER, IT DISTRIBUTED ALL OF ITS ASSETS TO ITS FOUR STOCKHOLDERS AS A
LIQUIDATING DIVIDEND; AND THAT THE TWO STOCKHOLDERS WHO RECEIVED THE
TEXAS CITY REFINERY CONVEYED IT TO A NEWLY ORGANIZED DELAWARE
CORPORATION WHOSE STOCKHOLDERS WERE AT NO TIME STOCKHOLDERS OF THE
TEXAS CORPORATION.  IT ASKED THAT THE COURT ORDER THAT PROOF OF THESE
FACTS BE TAKEN BEFORE THE BOARD OR ITS AGENT AND ADDED TO THE
TRANSCRIPT, AND THAT THE COURT THEREUPON DISMISS THE ENFORCEMENT
PROCEEDING.  IN NOVEMBER OF 1940, WHILE THIS APPLICATION WAS PENDING,
IT FILED AN ANSWER TO THE PETITION FOR ENFORCEMENT, ATTACKING THE
FINDINGS AND ORDER OF THE BOARD ON EVIDENTIARY GROUNDS, AND ALSO
PRAYING THAT THE PETITION BE DISMISSED BECAUSE PETITIONER HAD BEEN
FORMALLY DISSOLVED ON OCTOBER 16, 1940, AS EVIDENCED BY AN ATTACHED
COPY OF A CERTIFICATE BY THE TEXAS ASSISTANT SECRETARY OF STATE.  FN3 

THE CIRCUIT COURT OF APPEALS SUSTAINED THE BOARD'S ORDER AND ENTERED
A DECREE DIRECTING THAT IT BE ENFORCED, THUS IN EFFECT DENYING THE
MOTION TO DISMISS AND THE APPLICATION FOR LEAVE TO ADDUCE ADDITIONAL
EVIDENCE.  117 F.2D 90.  WE GRANTED CERTIORARI LIMITED TO THE QUESTION
OF THE PROPRIETY OF THE DENIAL OF THE LATTER BECAUSE OF THE GENERAL
IMPORTANCE OF THE QUESTION. 

WE HOLD THAT THE APPLICATION FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE
PURSUANT TO SEC. 10(E) OF THE NATIONAL LABOR RELATIONS ACT WAS
ADDRESSED TO THE SOUND JUDICIAL DISCRETION OF THE COURT, AND THAT THE
DENIAL OF PETITIONER'S APPLICATION UNDER THE CIRCUMSTANCES DISCLOSED BY
THE RECORD IN THIS CASE WAS NOT ERROR. 

TO ENSURE THAT THE APPLICABLE PART OF SEC. 10(E) WOULD BE USED ONLY
FOR PROPER PURPOSES, AND NOT ABUSED BY RESORT TO IT AS A MERE
INSTRUMENT OF DELAY, CONGRESS PROVIDED THAT BEFORE THE COURT MIGHT
GRANT RELIEF THEREUNDER IT MUST BE SATISFIED OF THE MATERIALITY OF THE
ADDITIONAL EVIDENCE, AND THAT THERE WERE REASONABLE GROUNDS FOR FAILURE
TO ADDUCE IT AT THE HEARING BEFORE THE BOARD.  THE DECISION BELOW UNDER
SEC. 10(E) APPARENTLY RESULTED SOLELY FROM A BELIEF THAT THE PROFFERED
EVIDENCE WAS NOT "MATERIAL."  ACCORDINGLY, WE HAVE NO OCCASION TO
DECIDE WHETHER A CIRCUIT COURT OF APPEALS MAY IN ITS DISCRETION DENY AN
APPLICATION UNDER SEC. 10(E) EVEN THOUGH IT BE SATISFIED THAT THE
ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE REASONABLE GROUNDS
FOR FAILURE TO ADDUCE IT IN THE HEARING BEFORE THE BOARD.  FOR THE SAME
REASON WE DO NOT CONSIDER THE QUESTION OF THE CREDIBILITY OF
PETITIONER'S ALLEGATIONS, VIEWED IN THE LIGHT OF ITS CONDUCT. 

THE PETITIONER'S CONDUCT DOES, HOWEVER, GIVE POINT TO OMISSIONS OF
PERTINENT FACTS FROM ITS ALLEGATIONS.  THE RECORD MAKES IT CERTAIN THAT
IT WOULD GAIN DELAY BY ALL HONORABLE MEANS AND LEAVES IT DOUBTFUL
WHETHER IT HAS EVEN STOPPED AT THAT.  THE LIQUIDATION RELIED UPON TOOK
PLACE THREE DAYS AFTER IT HAD ENTERED INTO THE STIPULATION OF
OBEDIENCE.  THE PURPOSE TO LIQUIDATE WAS NOT COMMUNICATED TO THE BOARD,
NOR WAS THE BOARD ADVISED OF THE ACTION WHEN TAKEN, NOR UNTIL NEARLY
FOUR MONTHS AFTER THE PETITION FOR ENFORCEMENT WAS FILED IN THE CIRCUIT
COURT OF APPEALS. 

THE STATEMENTS THAT THE TEXAS CORPORATION HAS DISCONTINUED OPERATIONS
AND THAT THE DELAWARE CORPORATION HAS TAKEN OVER THE REFINERY DID NOT
CALL FOR RECOMMITMENT BY THE CIRCUIT COURT OF APPEALS TO THE BOARD FOR
RECONSIDERATION OF THAT PART OF ITS ORDER WHICH REQUIRED THAT THE THREE
EMPLOYEES BE OFFERED REINSTATEMENT.  THE ALLEGATION IN THE APPLICATION
THAT THE "OWNERS OF THE STOCK OF SOUTHPORT PETROLEUM COMPANY OF
DELAWARE, WERE NEVER THE OWNERS OF ANY OF THE STOCK OF THE RESPONDENT
HEREIN," DOES NOT NEGATIVE EITHER THE POSSIBILITY THAT THE STOCK IN THE
DELAWARE CORPORATION REPRESENTS BUT AN INSUBSTANTIAL PART OF ITS TOTAL
CAPITALIZATION, WITH THE BALANCE AND REAL CONTROL BEING HELD BY THE
TEXAS CORPORATION OR ITS STOCKHOLDERS, OR THAT ITS STOCK WAS HELD BY
STRAW MEN.  A SWORN STATEMENT IN THE ANSWER TO THE BOARD'S PETITION
THAT THE DELAWARE CORPORATION "IS A SEPARATE AND DISTINCT ENTITY AND
THE STOCKHOLDERS IN RESPONDENT HAVE NO INTEREST, AND NEVER HAD ANY
INTEREST, DIRECTLY OR INDIRECTLY, IN THE STOCK OWNERSHIP OF THE SAID
DELAWARE CORPORATION, ALL AS SET OUT IN RESPONDENT'S MOTION HERETOFORE
FILED HEREIN," IF IT ADDS ANYTHING, DOES NOT ADD ENOUGH TO NEGATIVE
THESE POSSIBILITIES, FOR THE COURT WAS NOT REQUIRED TO BE SATISFIED
WITH SUCH CONCLUSIONS OF THE PETITIONER. 

IMPLICIT IN THE REINSTATEMENT PROVISION OF THE BOARD'S ORDER WAS A
CONDITION OF THE CONTINUED OPERATION BY THE OFFENDING EMPLOYER OF THE
REFINERY TO THE EMPLOYMENT OF WHICH THE ILLEGALLY DISCHARGED EMPLOYEES
WERE TO BE RESTORED.  FN4  SUCH OPERATION MIGHT HAVE CONTINUED UNDER
THE OLD BUSINESS FORM OR UNDER A DISGUISE INTENDED TO EVADE THIS
PROVISION.  IF THERE WAS MERELY A CHANGE IN NAME OR IN APPARENT CONTROL
THERE IS NO REASON TO GRANT THE PETITIONER RELIEF FROM THE BOARD'S
ORDER OF REINSTATEMENT; INSTEAD THERE IS ADDED GROUND FOR COMPELLING
OBEDIENCE.  WHETHER THERE WAS A BONA FIDE DISCONTINUANCE AND A TRUE
CHANGE OF OWNERSHIP - WHICH WOULD TERMINATE THE DUTY OF REINSTATEMENT
CREATED BY THE BOARD'S ORDER - OR MERELY A DISGUISED CONTINUANCE OF THE
OLD EMPLOYER, DOES NOT CLEARLY APPEAR, AND ACCORDINGLY IS A QUESTION OF
FACT PROPERLY TO BE RESOLVED BY THE BOARD ON DIRECT RESORT TO IT, OR BY
THE COURT IF CONTEMPT PROCEEDINGS ARE INSTITUTED.  FN5 

THE ADDITIONAL EVIDENCE WAS IMMATERIAL FOR THE FURTHER REASON THAT
THE BOARD'S ORDER RAN NOT ONLY TO THE PETITIONER, BUT ALSO TO ITS
"OFFICERS, AGENTS, SUCCESSORS, AND ASSIGNS."  FN6 GRANTING THE TRUTH OF
EVERY ONE OF PETITIONER'S ALLEGATIONS, IT STILL IS POSSIBLE THAT THE
BOARD'S ORDER MAY YET BE THE BASIS - AND THE INDISPENSABLE BASIS - OF
LIABILITY ON THE PART OF ANY OF THESE PERSONS, REGARDLESS OF ANY
PRESENT INCAPACITY OF PETITIONER TO PERFORM, OR LIABILITY ON ITS PART
FOR FAILURE TO PERFORM, ITS DUTY OF REINSTATEMENT.  OF COURSE, WE DO
NOT PASS ON THE QUESTION WHETHER ANY SUCH LIABILITY ACTUALLY EXISTS;
ALL WE HOLD IS THAT THERE HAS NOT BEEN A SUFFICIENT SHOWING BY THE
PETITIONER TO NEGATIVE THE POSSIBILITY WHICH WE NOTE. 

THE PETITIONER'S ALLEGATIONS ARE IMMATERIAL WITH RESPECT TO THE BACK
PAY PROVISION IN THE BOARD'S ORDER FOR LIKE REASONS AND BECAUSE SOME
LIABILITY IN THIS RESPECT UNQUESTIONABLY EXISTS, ALTHOUGH FOR A
DISPUTED PERIOD OF TIME.  AND, FROM WHAT WE HAVE SAID, IT IS APPARENT
THAT THE PETITIONER HAS NOT SHOWN THAT THERE HAS BEEN ANY CHANGE IN ITS
RELATIONS TO THE REFINERY SUCH AS TO INDICATE ANY ALTERATION OF THE
BOARD'S ORDER IN RESPECT OF ITS REQUIREMENTS THAT PETITIONER POST
NOTICES AT "ITS TEXAS CITY, TEXAS, REFINERY," AND THAT IT DESIST FROM
UNFAIR LABOR PRACTICES.  AFFIRMED. 

FN1  SECTION 1 OF THE BOARD'S ORDER REQUIRED THAT THE PETITIONER
CEASE AND DESIST FROM: 

"(A)  DISCOURAGING MEMBERSHIP IN OIL WORKERS INTERNATIONAL UNION,
LOCAL NO. 227, OR IN ANY OTHER LABOR ORGANIZATION OF ITS EMPLOYEES, BY
DISCHARGING ITS EMPLOYEES OR BY OTHERWISE DISCRIMINATING IN REGARD TO
HIRE OR TENURE OF EMPLOYMENT OR ANY TERM OR CONDITION OF EMPLOYMENT; 

"(B)  IN ANY OTHER MANNER INTERFERING WITH, RESTRAINING, OR COERCING
ITS EMPLOYEES IN THE EXERCISE OF THE RIGHT TO SELF-ORGANIZATION, TO
FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, OR TO ENGAGE IN
CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID OR PROTECTION, AS GUARANTEED IN SECTION 7 OF THE ACT." 

WE DO NOT CONSIDER THE QUESTION WHETHER, IN THE RATHER UNUSUAL
CIRCUMSTANCES OF THIS CASE, THE ORDER SHOULD BE MODIFIED AS BEING
UNDULY BROAD IN THIS RESPECT, SEE NATIONAL LABOR RELATIONS BOARD V.
EXPRESS PUBLISHING CO., 312 U.S. 426, SINCE THIS QUESTION WAS NOT
CONSIDERED OR RAISED IN THE COURT BELOW OR IN THE PETITION FOR
CERTIORARI.  ALICE STATE BANK V. HOUSTON PASTURE CO., 247 U.S. 240,
242; GUNNING V. COOLEY, 281 U.S. 90, 98; ZELLERBACH PAPER CO. V.
HELVERING, 293 U.S. 172, 182. 

FN2  THIS PROVIDES IN PERTINENT PART AS FOLLOWS:  "IF EITHER PARTY
SHALL APPLY TO THE COURT FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE AND
SHALL SHOW TO THE SATISFACTION OF THE COURT THAT SUCH ADDITIONAL
EVIDENCE IS MATERIAL AND THAT THERE WERE REASONABLE GROUNDS FOR THE
FAILURE TO ADDUCE SUCH EVIDENCE IN THE HEARING BEFORE THE BOARD, ITS
MEMBER, AGENT, OR AGENCY, THE COURT MAY ORDER SUCH ADDITIONAL EVIDENCE
TO BE TAKEN BEFORE THE BOARD, ITS MEMBER, AGENT, OR AGENCY, AND TO BE
MADE A PART OF THE TRANSCRIPT."  49 STAT. 449, 454; 29 U.S.C. (SUPP. V)
SEC. 160(E). 

FN3  TEXAS PROVIDES BY STATUTE THAT: 

"ART. 1388.  LIQUIDATION BY OFFICERS.  - UPON THE DISSOLUTION OF A
CORPORATION, UNLESS A RECEIVER IS APPOINTED BY SOME COURT OF COMPETENT
JURISDICTION, THE PRESIDENT AND DIRECTORS OR MANAGERS OF THE AFFAIRS OF
THE CORPORATION AT THE TIME OF ITS DISSOLUTION SHALL BE TRUSTEES OF THE
CREDITORS AND STOCKHOLDERS OF SUCH CORPORATION, WITH POWER TO SETTLE
THE AFFAIRS, COLLECT THE OUTSTANDING DEBTS, AND DIVIDE THE MONEYS AND
OTHER PROPERTY AMONG THE STOCKHOLDERS AFTER PAYING THE DEBTS DUE AND
OWING BY SUCH CORPORATION AT THE TIME OF ITS DISSOLUTION, AS FAR AS
SUCH MONEY AND PROPERTY WILL ENABLE THEM AFTER PAYING ALL JUST AND
REASONABLE EXPENSES; AND FOR THIS PURPOSE THEY MAY IN THE NAME OF SUCH
CORPORATION, SELL, CONVEY AND TRANSFER ALL REAL AND PERSONAL PROPERTY
BELONGING TO SUCH COMPANY, COLLECT ALL DEBTS, COMPROMISE CONTROVERSIES,
MAINTAIN OR DEFEND JUDICIAL PROCEEDINGS, AND EXERCISE FULL POWER AND
AUTHORITY OF SAID COMPANY OVER SUCH ASSETS AND PROPERTY.  SAID TRUSTEES
SHALL BE SEVERALLY RESPONSIBLE TO THE CREDITORS AND STOCKHOLDERS OF
SUCH CORPORATION TO THE EXTENT OF ITS PROPERTY AND EFFECTS THAT SHALL
HAVE COME INTO THEIR HANDS. 

"ART. 1389.  EXTENSION OF EXISTENCE.  - THE EXISTENCE OF EVERY
CORPORATION MAY BE CONTINUED FOR THREE YEARS AFTER ITS DISSOLUTION FROM
WHATEVER CAUSE, FOR THE PURPOSE OF ENABLING THOSE CHARGED WITH THE
DUTY, TO SETTLE UP ITS AFFAIRS.  IN CASE A RECEIVER IS APPOINTED BY A
COURT FOR THIS PURPOSE, THE EXISTENCE OF SUCH CORPORATION MAY BE
CONTINUED BY THE COURT SO LONG AS IN ITS DISCRETION IT IS NECESSARY TO
SUITABLY SETTLE THE AFFAIRS OF SUCH CORPORATION. 

"ART. 1390.  EFFECT OF DISSOLUTION.  - THE DISSOLUTION OF A
CORPORATION SHALL NOT OPERATE TO ABATE, NOR BE CONSTRUED AS ABATING ANY
PENDING SUIT IN WHICH SUCH CORPORATION IS A DEFENDANT, BUT SUCH SUIT
SHALL CONTINUE AGAINST SUCH CORPORATION AND JUDGMENT SHALL BE RENDERED
AS THOUGH THE SAME WERE NOT DISSOLVED."  3 VERNON'S ANNOTATED TEXAS
STATUTES (CIVIL STATUTES). 

FN4  THE ORDER REQUIRED THAT THE EMPLOYEES BE REINSTATED "TO THEIR
FORMER POSITIONS, WITHOUT PREJUDICE TO THEIR SENIORITY AND OTHER RIGHTS
AND PRIVILEGES." 

FN5  SUCH PROCEEDINGS MAY BE INSTITUTED ONLY BY THE BOARD. 
AMALGAMATED UTILITY WORKERS V. CONSOLIDATED EDISON CO., 309 U.S. 261. 

FN6  THIS IS THE USUAL FORM OF ORDER, AND HAS FREQUENTLY BEEN
EMPLOYED IN CASES WHERE THIS COURT HAS SUSTAINED BOARD ORDERS.  E.G.,
CONSOLIDATED EDISON CO. V. NATIONAL LABOR RELATIONS BOARD, 305 U.S.
197, ENFORCING, AS MODIFIED, 4 N.L.R.B. 71, 108; NATIONAL LABOR
RELATIONS BOARD V. NEWPORT NEWS SHIPBUILDING & DRY DOCK CO., 308 U.S.
241, ENFORCING 8 N.L.R.B. 866, 877; NATIONAL LABOR RELATIONS BOARD V.
FALK CORPORATION, 308 U.S. 453, ENFORCING 6 N.L.R.B. 654, 666; NATIONAL
LABOR RELATIONS BOARD V. WATERMAN STEAMSHIP CORP., 309 U.S. 206,
ENFORCING 7 N.L.R.B. 237, 252; NATIONAL LABOR RELATIONS BOARD V. LINK
BELT CO., 311 U.S. 584, ENFORCING 12 N.L.R.B. 854, 883; PHELPS DODGE
CORP. V. NATIONAL LABOR RELATIONS BOARD, 313 U.S. 177, ENFORCING, AS
MODIFIED, AND REMANDING 19 N.L.R.B. 547, 603.    MR. JUSTICE ROBERTS
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED, DISSENTING:    THE RECORD DOES NOT LEAD ME TO THE
CONCLUSION THAT PETITIONER HAS TAKEN ANY IMPROPER STEPS TO SECURE LEAVE
TO ADDUCE ADDITIONAL EVIDENCE, THE MATTER TO WHICH THE CERTIORARI WAS
LIMITED BY OUR GRANT.  IT IS PLAIN THAT THE CIRCUIT COURT OF APPEALS
DID NOT ACT ON ANY SUCH GROUND.  NEITHER THE RECORD ON THAT ISSUE NOR
THE GOVERNMENT'S BRIEF OR ARGUMENT MAKE ANY SUCH CONTENTION.  ONLY
AFTER EVIDENCE BEFORE THE BOARD WOULD IT SEEM PROPER FOR A COURT TO
FORM ITS OPINION OF THAT QUESTION. 

SO FAR AS WE NOW KNOW, THE PETITIONER SOLD ITS FACILITIES IN GOOD
FAITH, AFTER THE ENTRY OF THE BOARD'S ORDER AND PRIOR TO ITS MOTION TO
REMAND, THUS DIVESTING ITSELF OF ALL INTEREST OR CONTROL OVER ITS
FORMER PROPERTIES.  IN THAT SITUATION IT ASKED A REMAND TO THE BOARD TO
PRESENT BEFORE THE BOARD THE CHANGE OF CONDITIONS BECAUSE OF WHICH IT
ASKED A DISMISSAL OF THE PROCEEDINGS.  SEC. 10(E), 49 STAT. 453.  THERE
WERE TWO LITERALLY UNCONDITIONAL PROVISIONS OF THE ORDER WHICH
PETITIONER, IF ITS ALLEGATIONS ARE TRUE, COULD NOT MEET, 2(A) AND (C): 

"2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH THE BOARD FINDS WILL
EFFECTUATE THE POLICIES OF THE ACT: 

(A)  OFFER TO WILLIAM CORNISH, E. D. RICHEY, AND EARL GOOCH IMMEDIATE
AND FULL REINSTATEMENT TO THEIR FORMER POSITIONS, WITHOUT PREJUDICE TO
THEIR SENIORITY AND OTHER RIGHTS AND PRIVILEGES; 

     .         .         .         .    . 

(C)  POST IMMEDIATELY NOTICES IN CONSPICUOUS PLACES AT ITS TEXAS
CITY, TEXAS, REFINERY STATING THAT THE RESPONDENT WILL CEASE AND DESIST
IN THE MANNER AFORESAID, AND MAINTAIN SAID NOTICES FOR A PERIOD OF
THIRTY (30) CONSECUTIVE DAYS FROM THE DATE OF POSTING;" 

IN ITS BRIEF, RESPONDENT, IT SEEMS TO ME, ADMITS THE CORRECTNESS OF
PETITIONER'S VIEW.  IT SAYS: 

"IN ITS APPLICATION TO ADDUCE EVIDENCE PETITIONER ALLEGED THAT BY
REASON OF ITS DISTRIBUTION OF ASSETS AND DISCONTINUATION OF BUSINESS IT
COULD NOT REINSTATE ANY EMPLOYEES.  THEREAFTER IN ITS PETITION FOR
REHEARING IN THE COURT BELOW AND PETITION FOR CERTIORARI IN THIS COURT,
PETITIONER MAINTAINED THAT IT COULD NOT DO SO UNLESS, AS IT SUGGESTED,
THE ORDER REQUIRED IT TO PURCHASE AND OPERATE ANOTHER REFINERY OR
OTHERWISE RESUME BUSINESS.  PROPERLY CONSTRUED (CF. FEDERAL TRADE
COMMISSION V. STANDARD EDUCATION SOCIETY, 302 U.S. 112, 117-118), THE
ORDER CONTAINS NO SUCH REQUIREMENT.  ITS PURPOSE WAS TO REMEDY
PETITIONER'S VIOLATIONS OF THE ACT BY RESTORING THE STATUS QUO AS IT
EXISTED PRIOR TO THE VIOLATIONS, BUT ONLY TO THE EXTENT POSSIBLE UNDER
THE CIRCUMSTANCES EXISTING AT THE TIME OF COMPLIANCE, ASSUMING THAT THE
CIRCUMSTANCES WERE NOT CHANGED THROUGH ANY BAD FAITH ON PETITIONER'S
PART.  SEE NATIONAL LABOR RELATIONS BOARD V. REMINGTON RAND, INC., 97
F.2D 195, 196-197(C.C.A. 2).  THAT THE MEN WERE TO BE OFFERED
REINSTATEMENT 'TO THEIR FORMER POSITIONS' IS EXPRESS INDICATION THAT
THE REINSTATEMENT PROVISION WAS CONTINGENT UPON CONTINUED OPERATION OF
THE TEXAS CITY REFINERY.  THIS LIKEWISE APPEARS TO HAVE BEEN TRUE OF
PARAGRAPH 2(C) OF THE ORDER REQUIRING THE POSTING OF NOTICES 'AT ITS
TEXAS CITY, TEXAS, REFINERY.'" 

WE CANNOT TREAT THIS SUGGESTION AS RELIEVING THIS PETITIONER OF THE
THREAT OF CONTEMPT PROCEEDINGS.  THE STATEMENT DOES NOT CONSENT TO THE
AMENDMENT OF THE ORDER.  BAD FAITH MAY STILL BE CLAIMED TO EXIST.  THIS
SHOULD BE DETERMINED BY THE BOARD.  CONSEQUENTLY, I AM OF THE OPINION
THAT THE DECREE BELOW SHOULD BE REVERSED WITH DIRECTIONS TO SUSTAIN THE
MOTION FOR A REMAND UNLESS THE BOARD AGREES TO ELIMINATE SECS. 2(A) AND
(C) OF THE ORDER, IN LINE WITH THE BOARD'S APPARENT CONCESSION IN ITS
BRIEF. 

THE CHIEF JUSTICE CONCURS IN THIS DISSENT. 
..END :







DUNCAN V. THOMPSON, 315 U.S. 1 


NO. 78.  ARGUED DECEMBER 16, 1941.  - DECIDED JANUARY 12, 1942.  - 146
S.W.2D 112, REVERSED. 


1.  AN AGREEMENT BETWEEN AN INJURED RAILWAY EMPLOYEE AND THE RAILWAY
EMPLOYER, MADE AFTER THE INJURY, WHEREBY, IN CONSIDERATION OF A PAYMENT
"FOR LIVING AND OTHER EXPENSES PENDING FURTHER DEVELOPMENTS AS TO THE
EXTENT AND EFFECT OF SAID INJURIES AND NEGOTIATIONS FOR SETTLEMENT OF
(HIS) CLAIM," THE EMPLOYEE AGREES THAT HE WILL ENDEAVOR, IN GOOD FAITH,
TO ADJUST AND SETTLE ANY CLAIM HE MAY HAVE FOR HIS INJURIES WITHOUT
RESORTING TO LITIGATION, BUT THAT IF HIS CLAIM IS NOT SO ADJUSTED, AND
HE ELECTS TO BRING SUIT, HE WILL FIRST RETURN THE SUM PAID AND SUCH
RETURN SHALL BE A PREREQUISITE TO THE FILING AND MAINTENANCE OF ANY
SUCH SUIT, IS VOID UNDER SEC. 5 OF THE FEDERAL EMPLOYERS LIABILITY
ACT.  P. 6. 

2.  SUCH AN AGREEMENT IS NOT A COMPROMISE OR CONDITIONAL COMPROMISE. 
P. 7. 

DUNCAN V. THOMPSON, TRUSTEE. 

CERTIORARI TO THE SPRINGFIELD COURT OF APPEALS OF MISSOURI. 

CERTIORARI, 314 U.S. 589, TO REVIEW A JUDGMENT OF THE SPRINGFIELD
COURT OF APPEALS WHICH REVERSED A RECOVERY FOR PERSONAL INJURIES
SECURED BY THE PRESENT PETITIONER IN A COURT OF FIRST INSTANCE IN
MISSOURI.  AN APPLICATION TO THE SUPREME COURT OF THE STATE FOR A WRIT
OF CERTIORARI WAS DECLINED. 

THE CONTRACT WAS A COVENANT NOT TO SUE.  A COVENANT NOT TO SUE IS IN
THE NATURE OF A CONTRACT OF RELEASE. 

IF THE FEDERAL EMPLOYERS LIABILITY ACT DOES NOT PROHIBIT AN INJURED
CLAIMANT FROM RELEASING HIS CAUSE OF ACTION FOR A CONSIDERATION, BY
PARITY OF REASONING IT OUGHT TO BE HELD THAT THE ACT DOES NOT PROHIBIT
HIM FROM COVENANTING, FOR A CONSIDERATION, NOT TO SUE ON HIS CAUSE OF
ACTION. 

EVERY COURT WHICH HAS CONSIDERED THE QUESTION HAS COME TO THE
CONCLUSION THAT THE CONGRESS, BY SEC. 5 OF THE ACT, DID NOT INTEND TO
PROHIBIT AN INJURED CLAIMANT FROM COMPROMISING HIS DISPUTED CLAIM AND
FROM RELEASING THE SAME. 

THE COURTS AND TEXT WRITERS ARE UNANIMOUS IN SAYING THAT THE PURPOSE
OF CONGRESS WAS TO PROHIBIT EMPLOYER AND EMPLOYEE, BEFORE INJURY OF THE
LATTER, FROM CONTRACTING TO EXEMPT THE EMPLOYER FROM THE LIABILITY
CREATED BY THE ACT, AND NOT TO PREVENT THE PARTIES FROM CONTRACTING
AFTER INJURY. 

PETITIONER, HAVING ACCEPTED THE SUBSTANTIAL SUM OF $600 IN
CONSIDERATION OF HIS COVENANT NOT TO SUE, CAN NOT DISAFFIRM HIS
COVENANT AND SUE IN VIOLATION OF IT WHILE CLINGING TO THE FRUITS OF THE
CONTRACT WHICH HE AFFECTS TO DISAFFIRM. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APRIL 10, 1936, PETITIONER DUNCAN, WHILE PERFORMING DUTIES AS
RESPONDENT'S EMPLOYEE, FELL FROM A LOCOMOTIVE AND WAS INJURED.  SINCE
AT THE TIME HE WAS WORKING FOR A "COMMON CARRIER BY RAILROAD" AND IN
INTERSTATE COMMERCE, THE RIGHT TO RECOVER DAMAGES IS GOVERNED BY THE
FEDERAL EMPLOYERS' LIABILITY ACT.  35 STAT. 65.  SIXTEEN MONTHS LATER,
AUGUST 13, 1937, DUNCAN WAS STILL SUFFERING FROM HIS INJURIES, HIS WIFE
WAS IN THE HOSPITAL, AND HE NEEDED MONEY.  ON THAT DAY, UPON DUNCAN'S
SIGNING AN INSTRUMENT PRESENTED TO HIM BY THE COMPANY'S CLAIM AGENT, HE
WAS PAID $600 "FOR LIVING AND OTHER EXPENSES PENDING FURTHER
DEVELOPMENTS AS TO THE EXTENT AND EFFECT OF SAID INJURIES AND
NEGOTIATIONS FOR SETTLEMENT OF (HIS) CLAIM."  THE INSTRUMENT ALSO
STATED THAT: 

"IN CONSIDERATION OF SAID PAYMENT OF $600.00, I AGREE WITH SAID
TRUSTEE THAT I WILL ENDEAVOR, IN GOOD FAITH, TO ADJUST AND SETTLE ANY
CLAIM I MAY HAVE FOR MY INJURIES WITHOUT RESORTING TO LITIGATION, BUT I
AGREE THAT IF MY CLAIM IS NOT SO ADJUSTED, AND I ELECT TO BRING SUIT, I
WILL FIRST RETURN THE SAID SUM OF $600.00 TO SAID TRUSTEE AND SAID
RETURN SHALL BE A PREREQUISITE TO THE FILING AND MAINTENANCE OF ANY
SUCH SUIT." 

ABOUT EIGHT MONTHS LATER, APRIL 4, 1938, NEGOTIATIONS FOR SETTLEMENT
NOT HAVING BEEN SUCCESSFUL, DUNCAN, WITHOUT RETURNING THE $600, SUED
THE RESPONDENT IN A MISSOURI STATE COURT, CHARGING THAT HIS INJURIES
RESULTED FROM THE NEGLIGENCE OF THE RESPONDENT'S SERVANTS OR AGENTS. 
AMONG OTHER PLEADINGS, THE RESPONDENT FILED A PLEA IN ABATEMENT
ALLEGING THAT "THIS SUIT AND ACTION HAVE BEEN BEGUN AND COMMENCED BY
PLAINTIFF WITHOUT THE PRE-REQUISITE RETURN TO DEFENDANT TRUSTEE OF SAID
SUM OF $600,  ...  AND THIS ACTION IS PRE-MATURE AND SHOULD BE
DISMISSED BY THE COURT."  DUNCAN REPLIED THAT THE AGREEMENT, SO FAR AS
IT PURPORTED TO CREATE A CONDITION PRECEDENT TO BRINGING SUIT, WAS VOID
UNDER SEC. 5 OF THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, 66,
WHICH IN PART 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 ACT, SHALL TO THAT EXTENT BE VOID
...  " 

THE TRIAL JUDGE HELD THE AGREEMENT DID NOT BAR DUNCAN'S SUIT, BUT
SUBMITTED THE ISSUES OF NEGLIGENCE TO THE JURY WITH INSTRUCTIONS THAT
IF THEIR VERDICT SHOULD BE FOR HIM THE RAILROAD WOULD BE ENTITLED TO A
CREDIT OF $600 AND INTEREST.  THE VERDICT WAS FOR DUNCAN AND, AFTER
APPROPRIATE SUBTRACTION FOR THE PRIOR PAYMENT TO HIM, JUDGMENT FOR
$5,000 WAS ENTERED IN HIS FAVOR.  THE SPRINGFIELD COURT OF APPEALS
REVERSED, HOLDING THAT THE INVALIDATING EFFECT OF SEC. 5 DOES NOT
EXTEND TO CONTRACTS MADE AFTER AN EMPLOYEE IS INJURED, 146 S.W.2D 112,
AND THE MISSOURI SUPREME COURT DECLINED TO REVIEW ITS ACTION. 

IN PHILADELPHIA, B. & W.R. CO. V. SCHUBERT, 224 U.S. 603, 611, THIS
COURT REFERRED TO SEC. 5 AS FOLLOWS: 

"THE EVIDENT PURPOSE OF CONGRESS WAS TO ENLARGE THE SCOPE OF THE
SPECIFIC, DESCRIPTION.  IT THUS BRINGS WITHIN ITS PURVIEW '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 ACT.'  IT INCLUDES EVERY VARIETY OF
AGREEMENT OR ARRANGEMENT OF THIS NATURE  ...  "  WHILE THIS
INTERPRETATION IS BROAD ENOUGH TO BRING WITHIN SEC. 5 CONTRACTS MADE
AFTER AS WELL AS BEFORE THE INJURY, THE AGREEMENT AT ISSUE IN THE
SCHUBERT CASE WAS MADE PRIOR TO THE INJURY, AND THE ACTUAL DECISION
THEREFORE DOES NOT CONTROL AGREEMENTS WHICH, LIKE THAT NOW BEFORE US,
ARE MADE AFTER THE INJURY HAS OCCURRED.  MOREOVER, SEVERAL STATE COURTS
HAVE EXPRESSED THE VIEW THAT CONTRACTS MADE AFTER THE INJURY HAS
OCCURRED ARE NOT INVALIDATED BY SEC. 5.  SEE, E.G., BALLENGER V.
SOUTHERN RY. CO., 106 S.C. 200, 203, 90 S.E. 1019; PATTON V. ATCHISON,
T. & S.F. RY. CO., 59 OKLA. 155, 156, 158 P. 576; LINDSAY V. ACME
CEMENT PLASTER CO., 220 MICH. 367, 377, 190 N.W. 275; CARLSON V.
NORTHERN PACIFIC RY. CO., 82 MONT. 559, 568, 268 P. 549. 

BECAUSE OF THIS DIVERGENCE OF JUDICIAL OPINION AS TO THE
INTERPRETATION OF SEC. 5, AND BECAUSE THE SCOPE OF SEC. 5 IS OF
FUNDAMENTAL IMPORTANCE IN THE ADMINISTRATION OF THE FEDERAL EMPLOYERS'
LIABILITY ACT, WE GRANTED CERTIORARI. 

BY CONGRESS IN 1906, PROVIDED THAT "NO CONTRACT OF EMPLOYMENT,
INSURANCE, RELIEF BENEFIT, OR INDEMNITY FOR INJURY OR DEATH ENTERED
INTO BY OR ON BEHALF OF ANY EMPLOYEE, NOR THE ACCEPTANCE OF ANY SUCH
INSURANCE, RELIEF BENEFIT, OR INDEMNITY BY THE PERSON ENTITLED THERETO,
SHALL CONSTITUTE ANY BAR OR DEFENSE TO ANY ACTION BROUGHT TO RECOVER
DAMAGES FOR PERSONAL INJURIES TO OR DEATH OF SUCH EMPLOYEE.  ... "  THE
COURT BELOW, TAKING THE POSITION THAT THE WORD "CONTRACT" AS USED IN
SEC. 3 REFERRED ONLY TO CONTRACTS ENTERED INTO BEFORE THE INJURY
OCCURRED, CONCLUDED THAT SEC. 5 OF THE PRESENT ACT IS NO BROADER IN
THIS RESPECT, BUT MERELY INCLUDES CONTRACTS, RULES, REGULATIONS, OR
DEVICES IN EFFECT BEFORE THE INJURY.  IN OUR OPINION, THE DIFFERENCE IN
THE LANGUAGE OF THE TWO SECTIONS AND THE LEGISLATIVE HISTORY OF THE
LATER ONE CANNOT BE RECONCILED WITH THIS CONCLUSION. 

IT IS CLEAR FROM THE CONGRESSIONAL COMMITTEE HEARINGS AND REPORTS ON
THE FEDERAL EMPLOYERS' LIABILITY ACT NOW IN FORCE, NOT ONLY THAT CLOSE
STUDY WAS MADE OF THE ENTIRE 1906 ACT AND IN PARTICULAR OF SEC. 3, BUT
ALSO THAT CONSIDERABLE ATTENTION WAS GIVEN TO STATE EMPLOYERS'
LIABILITY ACTS AND EXPERIENCE UNDER THEM.  SECTION 3 WAS INCORPORATED
VERBATIM IN ONE OF THE TWO BILLS INTRODUCED IN THE SENATE, BUT IT WAS
THE BILL CONTAINING THE BROADER LANGUAGE OF THE PRESENT SEC. 5 THAT
SURVIVED CONSIDERATION.  SEE HEARINGS ON S. 3080, FEBRUARY 20, 1908, P.
3, AND COMPARE SENATE REPORT NO. 460, 60TH CONG., 1ST SESS., P. 4. 
WITHOUT MORE, THE CHANGE FROM "CONTRACT" TO "ANY CONTRACT, RULE,
REGULATION, OR DEVICE WHATSOEVER" WOULD SEEM TO BE AN ENLARGEMENT AMPLE
TO INCLUDE AGREEMENTS MADE AFTER THE EVENT OF INJURY. 

BUT THERE IS MORE.  UNDER THE STATE ACTS THERE HAD BEEN WIDESPREAD
ATTEMPTS BY EMPLOYERS TO CONTRACT THEMSELVES OUT OF THE LIABILITIES THE
ACTS WERE INTENDED TO IMPOSE.  STATE LEGISLATURES HAD RESPONDED TO THIS
PRACTICE BY ADOPTING PROVISIONS WHICH PROSCRIBED EMPLOYER-EMPLOYEE
AGREEMENTS INTENDED TO DEPRIVE EMPLOYEES OF THE STATUTORY BENEFITS. 
THESE PROVISIONS VARIED IN SCOPE AND LANGUAGE.  SOME DECLARED
AGREEMENTS ATTEMPTING TO EXEMPT EMPLOYERS FROM LIABILITY VOID ONLY WHEN
THEY WERE PART OF CONTRACTS OF EMPLOYMENT.  ONE STATE, ALTHOUGH NOT
LIMITING THE STATUTORY INVALIDATION TO CONTRACTS OF EMPLOYMENT,
SPECIFICALLY RESTRICTED IT TO AGREEMENTS "ENTERED INTO PRIOR TO THE
INJURY."  OTHER STATES, PRESUMABLY AFTER EXPERIENCE HAD SHOWN THAT
NARROWER LIMITATIONS WERE INADEQUATE TO STAMP OUT INGENIOUS EVASIONS OF
THE STATUTORY RESPONSIBILITIES, ADOPTED MEASURES INVALIDATING
AGREEMENTS OF ANY TYPE, REGARDLESS OF WHEN MADE, WHICH ATTEMPTED TO
EXEMPT EMPLOYERS FROM LIABILITY.  HOUSE REPORT NO. 1386, 60TH CONG.,
1ST SESS., PP. 30-75. 

THE REPORT OF THE HOUSE JUDICIARY COMMITTEE ON THE SECOND FEDERAL
EMPLOYERS' LIABILITY ACT SET OUT ALL OF THE STATE STATUTES THEN IN
EFFECT.  BECAUSE THE VARIOUS STATE MEASURES DIRECTED AGAINST
CONTRACTUAL ARRANGEMENTS INTENDED TO EXEMPT EMPLOYERS FROM LIABILITY
WERE THUS LAID BEFORE CONGRESS, THE REJECTION OF THE RESTRICTIVE
LANGUAGE OF SEC. 3 OF THE OLD ACT INDICATES A DELIBERATE ABANDONMENT OF
THE LIMITATIONS OF THAT SECTION.  AND THE ADOPTION OF SEC. 5 OF THE
PRESENT ACT, WITHOUT ADDING ANY OF THE OTHER LIMITATIONS WHICH SOME OF
THE STATE STATUTES HAD EMBODIED, ARGUES PERSUASIVELY THAT CONGRESS
WANTED SEC. 5 TO HAVE THE FULL EFFECT THAT ITS COMPREHENSIVE
PHRASEOLOGY IMPLIES. 

CONCLUDING THAT THE PHRASE "ANY CONTRACT, RULE, REGULATION, OR DEVICE
WHATSOEVER" AS USED IN SEC. 5 COMPREHENDS THE INSTRUMENT SIGNED BY
DUNCAN LONG AFTER HE HAD BEEN INJURED, WE TURN TO THE REMAINING
QUESTION:  WHETHER "THE PURPOSE OR INTENT" OF THE INSTRUMENT WAS TO
ENABLE THE RESPONDENT "TO EXEMPT ITSELF FROM ANY LIABILITY CREATED BY
(THE) ACT."  THE INSTRUMENT PREPARED BY THE RESPONDENT FOR DUNCAN'S
SIGNATURE PURPORTED TO CREATE A CONDITION PRECEDENT TO HIS BRINGING
SUIT, THE REFUNDING OF $600.  BY ITS TERMS, UNLESS THIS CONDITION WERE
SATISFIED - AND IN VIEW OF DUNCAN'S STRAITENED CIRCUMSTANCES THE
PROBABILITY OF SATISFACTION WOULD SEEM NEGLIGIBLE - DUNCAN'S ONLY MEANS
OF ENFORCING SUCH LIABILITIES AS SHOULD HAVE BEEN ASSUMED BY THE
RESPONDENT WOULD BE TAKEN FROM HIM.  HENCE, THE AGREEMENT, IF VALID,
WOULD EFFECTIVELY EXEMPT THE RESPONDENT FROM LIABILITY UNDER THE ACT,
NO MATTER WHAT THE MERITS OF DUNCAN'S CLAIM. 

THE RESPONDENT CONTENDS, HOWEVER, THAT SEC. 5 DOES NOT INVALIDATE
COMPROMISES OF DISPUTED CLAIMS, AND THAT THE AGREEMENT HERE IS IN THE
NATURE OF A CONDITIONAL COMPROMISE.  WE NEED NOT HERE DETERMINE WHAT
LIMITATIONS, IF ANY, SEC. 5 PLACES UPON THE VALIDITY OF AGREEMENTS NOT
TO SUE IF MADE IN CONSIDERATION OF A BONA FIDE COMPROMISE AND
SETTLEMENT OF CLAIMS ARISING UNDER THE ACT, BECAUSE THE VERY LANGUAGE
OF THE AGREEMENT INDICATES IT IS NOT A COMPROMISE AND SETTLEMENT. 
WHILE THE AGREEMENT DOES CONTEMPLATE THE POSSIBILITY OF FUTURE
SETTLEMENT, IT EXPRESSLY STATED THAT THE $600 WAS ADVANCED "FOR LIVING
AND OTHER EXPENSES PENDING FURTHER DEVELOPMENTS AS TO THE EXTENT AND
EFFECT OF  ...  INJURIES AND NEGOTIATIONS FOR SETTLEMENT OF (THE)
CLAIM."  AND THE CLAIM AGENT OF THE RESPONDENT TESTIFIED THAT THE
AGREEMENT WAS IN A FORM REGULARLY USED BY THE RESPONDENT WHEN ITS
EMPLOYEES "HAD A LONG DISABILITY PERIOD LIKE HE (DUNCAN) HAD HAD  ...
TO TIDE THEM OVER UNTIL THEY HAD THEIR RECOVERY BEFORE WE NEGOTIATE
FINAL SETTLEMENT."  WE ARE UNPERSUADED, THEREFORE, BY ANY ARGUMENT
WHICH DEPENDS UPON TREATING THE AGREEMENT SIGNED BY DUNCAN AS A
COMPROMISE. 

THE JUDGMENT OF THE SPRINGFIELD COURT OF APPEALS IS REVERSED. 

FN1  34 STAT. 232.  THIS ACT WAS DECLARED UNCONSTITUTIONAL IN THE
EMPLOYERS' LIABILITY CASES, 207 U.S. 463. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















EX PARTE TEXAS, 315 U.S. 8 


NO. - , ORIGINAL.  ARGUED DECEMBER 8, 9, 1941.  - DECIDED JANUARY 12,
1942.  - MOTION DENIED. 


1.  IN LONE STAR GAS CO. V. TEXAS, 304 U.S. 224, THIS COURT DECIDED
THAT THE COMPANY, IN SUPPORT OF ITS CLAIM THAT GAS RATES FIXED BY THE
TEXAS RAILROAD COMMISSION WERE CONFISCATORY, WAS ENTITLED TO MAKE PROOF
OF CONFISCATION ON THE BASIS OF SERVICES RENDERED BY AN INTEGRATED
SYSTEM - THE BASIS ON WHICH THE COMMISSION FIXED THE RATES IN QUESTION;
BUT DID NOT DECIDE THAT THE RATES WERE CONFISCATORY OR IN ANYWISE
FORECLOSE A TRIAL OF THAT ISSUE IN THE STATE COURTS.  PP. 12-13. 

2.  LEAVE TO FILE A PETITION FOR A MANDAMUS DIRECTED TO THE JUSTICES
OF THE SUPREME COURT OF A STATE, REQUIRING THEM TO CONFORM THEIR
JUDGMENT TO A DECISION OF THIS COURT DETERMINING FEDERAL QUESTIONS
EARLIER IN THE CASE, WILL NOT BE GRANTED WHERE, BY THEIR RETURN TO THE
ORDER TO SHOW CAUSE, THEY SHOW THAT THE JUDGMENT OF THE STATE COURT WAS
BASED NOT UPON A MISCONCEPTION OF THIS COURT'S DECISION, AS ALLEGED AND
RELIED UPON IN THE PETITION FOR MANDAMUS, BUT UPON A CONSTRUCTION AND
APPLICATION OF STATE LAW.  P. 14. 

EX PARTE TEXAS ET AL. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS. 

MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF MANDAMUS AGAINST
THE CHIEF JUSTICE AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF
TEXAS, TO BRING A JUDGMENT OF THAT COURT IN CONFORMITY WITH A
CONTROLLING MANDATE OF THIS COURT.  THE LONE STAR GAS COMPANY WAS HERE
GRANTED LEAVE TO INTERVENE, 314 U.S. 582. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A MOTION BY THE ATTORNEY GENERAL AND RAILROAD COMMISSION OF
THE STATE OF TEXAS FOR LEAVE TO FILE A PETITION FOR A WRIT OF MANDAMUS
AGAINST THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT
OF TEXAS TO BRING A JUDGMENT OF THAT COURT INTO CONFORMITY WITH THE
CONTROLLING MANDATE OF THIS COURT.  THE FOUNDATION OF THE MOTION IS THE
CLAIM THAT IN THE PROCEEDINGS FOLLOWING THE REMAND BY THIS COURT TO THE
TEXAS COURTS OF THE LITIGATION IN LONE STAR GAS CO. V. TEXAS, 304 U.S.
224, THE SUPREME COURT OF TEXAS HAS MISCONCEIVED THE SCOPE OF OUR
DECISION.  THE HISTORY OF THE LITIGATION MUST THEREFORE BE SUMMARIZED. 

IN 1934 THE RAILROAD COMMISSION OF TEXAS BROUGHT AN ACTION IN THE
DISTRICT COURT OF TRAVIS COUNTY, UNDER ARTICLE 6059 OF THE REVISED
CIVIL STATUTES OF TEXAS, TO ENFORCE ITS ORDER OF SEPTEMBER 13, 1933,
FIXING THE RATE TO BE CHARGED BY THE LONE STAR GAS COMPANY, A TEXAS
CORPORATION OPERATING PIPE LINES LOCATED IN TEXAS AND OKLAHOMA, FOR GAS
DELIVERED TO DISTRIBUTING COMPANIES IN TEXAS.  THE COMMISSION'S ORDER
TREATED THE COMPANY'S PROPERTIES IN BOTH STATES AS AN "INTEGRATED"
SYSTEM.  IN ITS ANSWER THE COMPANY ATTACKED THE ORDER UNDER THE
COMMERCE AND DUE PROCESS CLAUSES.  A TRIAL WAS HELD BEFORE A JURY,
WHICH FOUND, FROM THE EVIDENCE BEFORE IT, THAT THE COMMISSION'S ORDER
WAS "UNREASONABLE AND UNJUST."  ACCORDINGLY, THE DISTRICT COURT
ENJOINED ENFORCEMENT OF THE ORDER.  AN APPEAL TO THE COURT OF CIVIL
APPEALS FOLLOWED.  THAT COURT SUSTAINED THE COMMISSION IN TREATING THE
COMPANY AS AN INTEGRATED ENTERPRISE AND FOUND AGAINST THE COMPANY UPON
THE ISSUE OF CONFISCATION.  THE BURDEN WAS PUT UPON THE COMPANY "TO
SHOW BY CLEAR AND SATISFACTORY EVIDENCE A PROPER SEGREGATION OF
INTERSTATE AND INTRASTATE PROPERTIES AND BUSINESS, AND TO SHOW THE
VALUE OF THE PROPERTY EMPLOYED IN INTRASTATE BUSINESS OR COMMERCE AND
THE COMPENSATION IT WOULD RECEIVE UNDER THE RATE COMPLAINED OF UPON
SUCH VALUATION.  HAVING FAILED TO MAKE A PROPER SEGREGATION OF
INTERSTATE AND INTRASTATE PROPERTIES, APPELLEE (I.E., THE COMPANY) DID
NOT ADDUCE THE QUANTUM AND CHARACTER OF PROOF NECESSARY TO ESTABLISH
THE INVALIDITY OF THE RATE AS BEING CONFISCATORY, OR UNREASONABLE AND
UNJUST."  86 S.W.2D 484, 502.  THE COURT THEREFORE DISSOLVED THE
INJUNCTION OF THE DISTRICT COURT AND DECLARED THE COMMISSION'S ORDER TO
BE "JUST, REASONABLE, AND VALID IN EVERY PARTICULAR."  86 S.W.2D 484,
506.  THE SUPREME COURT OF TEXAS REFUSED A WRIT OF ERROR AND THE CASE
THEN CAME HERE. 

WE REVERSED THE JUDGMENT OF THE COURT OF CIVIL APPEALS, AND REMANDED
THE CAUSE "FOR FURTHER PROCEEDINGS NOT INCONSISTENT" WITH THE OPINION. 
304 U.S. 224, 242.  IT WAS HELD:  (1) THE COMMISSION'S ORDER DID NOT
OFFEND THE COMMERCE CLAUSE.  THE COMMISSION WAS ENTITLED TO TAKE INTO
CONSIDERATION THE COMPANY'S PRODUCING PROPERTIES IN OKLAHOMA AND ITS
TRANSMISSION LINES TO TEXAS, BECAUSE "THE PROVED MANNER IN WHICH THE
GAS FROM OKLAHOMA WAS TREATED AND HANDLED IN TEXAS MADE IT AN INTEGRAL
PART OF THE GAS SUPPLIED TO THE TEXAS COMMUNITIES IN APPELLANT'S
INTRASTATE BUSINESS."  304 U.S. AT 239.  (2) ON THE ISSUE OF
CONFISCATION THE COURT OF CIVIL APPEALS HAD ERRED.  THE COMPANY "COULD
NOT BE DENIED THE RIGHT TO INTRODUCE EVIDENCE AS TO ITS PROPERTY AND
BUSINESS AS AN INTEGRATED SYSTEM AND TO HAVE THE SUFFICIENCY OF ITS
EVIDENCE ASCERTAINED BY THE CRITERION WHICH THE COMMISSION HAD PROPERLY
USED IN THE SAME MANNER IN REACHING ITS CONCLUSION AS TO THE TEXAS
RATE."  304 U.S. AT 241-42. 

WHEN THE CASE CAME BACK TO THE COURT OF CIVIL APPEALS, IT HELD THAT
"WHEN VIEWED IN THE LIGHT OF THE OVER-ALL OR UNSEGREGATED BASIS AND
EVIDENCE THE LEGISLATIVE RATE ORDER IS VALID AS A MATTER OF LAW," AND
THAT THE VALIDITY OF THE ORDER WAS ESTABLISHED "FACTUALLY FROM SO
OVERWHELMING A WEIGHT AND PREPONDERANCE OF THE EVIDENCE AS TO REQUIRE A
REVERSAL IN THE INTEREST OF JUSTICE."  AND SO IT AGAIN DISSOLVED THE
INJUNCTION AND REINSTATED THE COMMISSION'S ORDER.  129 S.W.2D 1164. 
THIS TIME THE SUPREME COURT OF TEXAS GRANTED A WRIT OF ERROR AND SENT
THE CASE BACK TO THE DISTRICT COURT FOR A NEW TRIAL.  153 S.W.2D 681. 

IN ITS EXTENDED OPINION THE SUPREME COURT OF TEXAS REVIEWED THESE TWO
RULINGS BY THE COURT OF CIVIL APPEALS:  (1) SINCE ARTICLE 6059 OF THE
REVISED STATUTES OF TEXAS,  FN1  GOVERNING JUDICIAL REVIEW OF THE
COMMISSION'S ORDERS, MAKES THE COMMISSION'S FINDINGS OF FACT CONCLUSIVE
IF SUPPORTED BY SUBSTANTIAL EVIDENCE, AND SINCE THE FINDINGS WERE
SUPPORTED BY SUCH EVIDENCE, THE ORDER WAS VALID AS A MATTER OF LAW AND
LEFT NO QUESTION FOR THE JURY.  (2) EVEN IF ARTICLE 6059 REQUIRED A
TRIAL DE NOVO OF ALL ISSUES OF FACT, "THE GAS COMPANY FAILED, AS A
MATTER OF LAW, TO OFFER EVIDENCE SUFFICIENT TO JUSTIFY HOLDING THIS GAS
RATE ORDER CONFISCATORY, OR UNREASONABLE AND UNJUST."  153 S.W.2D AT
687. 

THE SUPREME COURT OF TEXAS HELD THAT ARTICLE 6059 DOES REQUIRE A
TRIAL DE NOVO IN THE DISTRICT COURT.  IT ADDED THAT "THERE IS NO ESCAPE
FROM THE CONCLUSION THAT THE UNITED STATES SUPREME COURT DID CONSIDER
AND DID PASS UPON THE SUFFICIENCY OF THE GAS COMPANY'S EVIDENCE, WHEN
CONSIDERED FROM THE VIEWPOINT OF THE COMPANY'S ENTIRE PROPERTIES, AND
DID HOLD SUCH EVIDENCE LEGALLY SUFFICIENT TO SUSTAIN THE VERDICT OF THE
JURY FINDING THIS RATE ORDER CONFISCATORY."  153 S.W.2D AT 689.  LATER
IN ITS OPINION, THE TEXAS SUPREME COURT STATED "THAT SUCH OPINION (OF
THE SUPREME COURT OF THE UNITED STATES) DECIDES THAT THE EVIDENCE
CONTAINED IN THIS RECORD IS SUFFICIENT, IN LAW, TO INVOKE THE FACT
FINDING JURISDICTION OF THE DISTRICT COURT.  IT FOLLOWS THAT SUCH
MATTER HAS BEEN FORECLOSED BY THE UNITED STATES SUPREME COURT, AND IS
NOT OPEN FOR DECISION BY THIS COURT, AND WAS NOT OPEN FOR DECISION BY
THE COURT OF CIVIL APPEALS."  153 S.W.2D AT 695. 

IT AGREED WITH THE COURT OF CIVIL APPEALS THAT THE TRIAL COURT, TO
THE PREJUDICE OF THE COMMISSION, HAD ERRONEOUSLY PERMITTED THE
TESTIMONY OF A COMPANY WITNESS AND REFUSED TO EXCLUDE VARIOUS COMPANY
EXHIBITS.  IMMEDIATELY FOLLOWING THIS PART OF ITS OPINION THE SUPREME
COURT OF TEXAS WROTE:  "IT IS EVIDENT FROM OUR HOLDINGS ABOVE THAT THIS
CASE MUST BE REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL."  153
S.W.2D AT 699. 

THE PETITIONERS READ THE OPINION OF THE SUPREME COURT OF TEXAS TO
MEAN THAT THE CLAIM OF CONFISCATION COULD NO LONGER BE CONTESTED IN THE
TEXAS COURTS BECAUSE THIS COURT ADJUDICATED THAT CLAIM IN THE COMPANY'S
FAVOR.  SUCH WAS NOT THE RULING OF THIS COURT.  THE MERITS OF THE CLAIM
OF CONFISCATION WERE NOT REVIEWED.  ALL THAT WAS DECIDED HERE WAS THAT
THE COMPANY WAS ENTITLED TO MAKE PROOF OF CONFISCATION ON THE SAME
BASIS - NAMELY, THAT OF SERVICES RENDERED BY AN INTEGRATED SYSTEM - AS
THAT ON WHICH THE COMMISSION FIXED THE RATES.  ON THEIR READING OF THE
OPINION OF THE SUPREME COURT OF TEXAS, THE PETITIONERS WERE NATURALLY
EAGER FOR A PROMPT CORRECTION OF THE DECISION OF THAT COURT, EVEN
THOUGH IT WAS NOT FINAL, WITHOUT WAITING FOR THIS RATE CONTROVERSY,
ALREADY EIGHT YEARS OLD, AGAIN TO WIND ITS MEASURED WAY THROUGH THE
TEXAS COURTS AND THEN TO BE BROUGHT HERE ON AN INDUBITABLY FEDERAL
QUESTION, TO WIT, THE PROPER CONSTRUCTION OF A MANDATE OF THIS COURT. 

THE PETITIONERS CLAIM THAT BUT FOR A MISAPPLICATION OF OUR MANDATE
THE TEXAS SUPREME COURT MIGHT HAVE SUSTAINED THE COURT OF CIVIL APPEALS
AND THE LITIGATION COULD FINALLY HAVE COME TO AN END.  SINCE THE
OPINION OF THE TEXAS SUPREME COURT, ON ITS FACE, APPEARED TO BE
SUSCEPTIBLE OF THE CONSTRUCTION GIVEN IT BY THE PETITIONERS, WE ISSUED
A RULE TO SHOW CAUSE.  314 U.S. 579. 

IN THEIR RETURN, THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE
SUPREME COURT OF TEXAS STATE THAT THAT COURT "WOULD HAVE RENDERED THE
SAME JUDGMENT IF IT HAD BASED THE SAME SOLELY UPON ITS CONSTRUCTION OF
THE STATE STATUTE AND NOT AT ALL UPON ITS CONSTRUCTION OF THE OPINION
OF THIS COURT."  THE RETURN FURTHER SHOWED THAT IN REMANDING THE CAUSE
TO THE DISTRICT COURT FOR A NEW TRIAL THE SUPREME COURT OF TEXAS ACTED
ENTIRELY PURSUANT TO STATE LAW:  "THE COURT OF CIVIL APPEALS IN THIS
STATE HAS FULL POWER TO SET ASIDE FINDINGS BASED ON CONFLICTING
EVIDENCE AND BELIEVED BY IT TO BE AGAINST THE OVERWHELMING WEIGHT AND
PREPONDERANCE OF THE EVIDENCE AND TO REMAND THE CASE FOR ANOTHER TRIAL;
BUT IT IS WITHOUT POWER TO SET ASIDE FINDINGS BASED ON CONFLICTING
EVIDENCE AND THEN MAKE ITS OWN FINDINGS AND RENDER JUDGMENT THEREON." 

WE READ THIS RETURN AS A DISCLAIMER BY THE JUDGES OF THE SUPREME
COURT OF TEXAS OF THE CONSTRUCTION PLACED UPON THEIR OPINION BY THE
PETITIONERS INSOFAR AS IT TOUCHES THE SCOPE OF THIS COURT'S RULING IN
304 U.S. 224 AND THE EFFECT OF THAT DECISION UPON THE FUTURE COURSE OF
THIS LITIGATION.  SPECIFICALLY, WE READ THE RETURN AS A DISAVOWAL BY
THE SUPREME COURT OF TEXAS THAT ITS ACTION IN REVERSING THE TEXAS COURT
OF CIVIL APPEALS AND ORDERING A NEW TRIAL IMPLIED THAT OUR DECISION
ADJUDICATED THE CLAIM OF CONFISCATION OR IN ANY WISE FORECLOSES TRIAL
OF THAT ISSUE.  THEREFORE, WHEN THE LITIGATION GOES BACK TO THE
DISTRICT COURT, IT WILL NOT BE IMPRISONED WITHIN AN ADJUDICATION TO BE
ATTRIBUTED TO THIS COURT WHICH THIS COURT NEVER MADE.  WE MUST ACCEPT
THE RETURN OF THE TEXAS JUDGES REGARDING THE SCOPE OF JUDICIAL REVIEW
OF ORDERS OF THE TEXAS RAILROAD COMMISSION, AS WELL AS THEIR SHOWING
REGARDING THE DISTRIBUTION OF JUDICIAL POWER WITHIN THE TEXAS JUDICIAL
SYSTEM.  THESE ARE MATTERS OF LOCAL LAW. 

THE RULE WILL THEREFORE BE DISCHARGED AND THE MOTION DENIED.  SO
ORDERED. 

FN1  ARTICLE 6059 PROVIDES:  "IF ANY GAS UTILITY OR OTHER PARTY AT
INTEREST BE DISSATISFIED WITH THE DECISION OF ANY RATE, CLASSIFICATION,
RULE, CHARGE, ORDER, ACT OR REGULATION ADOPTED BY THE COMMISSION, SUCH
DISSATISFIED UTILITY OR PARTY MAY FILE A PETITION SETTING FORTH THE
PARTICULAR CAUSE OF OBJECTION THERETO IN A COURT OF COMPETENT
JURISDICTION IN TRAVIS COUNTY AGAINST THE COMMISSION AS DEFENDANT. 
SAID ACTION SHALL HAVE PRECEDENCE OVER ALL OTHER CAUSES ON THE DOCKET
OF A DIFFERENT NATURE AND SHALL BE TRIED AND DETERMINED AS OTHER CIVIL
CAUSES IN SAID COURT.  ... IN ALL TRIALS UNDER THIS ARTICLE THE BURDEN
OF PROOF SHALL REST UPON THE PLAINTIFF, WHO MUST SHOW BY CLEAR AND
SATISFACTORY EVIDENCE THAT THE RATES, REGULATIONS, ORDERS,
CLASSIFICATIONS, ACTS OR CHARGES COMPLAINED OF ARE UNREASONABLE AND
UNJUST TO IT OR THEM." 

MR. JUSTICE ROBERTS HEARD THE ARGUMENT AND AGREED TO THE ABOVE
DISPOSITION OF THE CASE, BUT THROUGH ABSENCE WAS UNABLE TO JOIN IN THE
OPINION. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY CONCUR
IN THE RESULT. 
..END :



















ALTON R. CO. V. UNITED STATES, 315 U.S. 15 


NO. 110.  ARGUED DECEMBER 19, 22, 1941.  - DECIDED JANUARY 12, 1942.  -
36 F.SUPP.  898, AFFIRMED. 


1.  SECTION 205(H) OF THE MOTOR CARRIER ACT OF 1935 INCORPORATES BY
REFERENCE THE "PARTY IN INTEREST" PROVISION OF SEC. 1(20) OF THE
INTERSTATE COMMERCE ACT.  P. 19. 

2.  A RAILROAD COMPANY WHICH IS IN COMPETITION WITH AN INDIVIDUAL
ENGAGED IN THE TRANSPORTATION OF MOTOR VEHICLES BY THE DRIVEAWAY OR
CARAVANING METHOD, IS A "PARTY IN INTEREST" ENTITLED, UNDER SEC.
205(H), TO SUE TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION GRANTING TO SUCH INDIVIDUAL A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY.  P. 19. 

3.  OPERATIONS AUTHORIZED UNDER THE "GRANDFATHER CLAUSE" OF SEC.
206(A) OF THE MOTOR CARRIER ACT OF 1935, IN THE TERRITORY TO BE SERVED,
NEED NOT BE RESTRICTED TO SPECIFIED ROUTES OR BETWEEN FIXED TERMINI. 
P. 20. 

4.  IN THE CASE OF A TRANSPORTER OF MOTOR VEHICLES BY THE DRIVEAWAY
OR CARAVANING METHOD, THE INTERSTATE COMMERCE COMMISSION, UNDER THE
"GRANDFATHER CLAUSE," MAY, CONSIDERING THE CHARACTERISTICS OF THE
PARTICULAR TRANSPORTATION SERVICE, AUTHORIZE OPERATION TO ALL POINTS
WITHIN A STATE, ALTHOUGH BUT A FEW POINTS HAD PREVIOUSLY BEEN SERVED. 
SUCH AUTHORIZATION IN THIS CASE WAS NOT INAPPROPRIATE, AND MUST BE
SUSTAINED.  P. 22. 

5.  THERE WAS EVIDENCE IN THIS CASE THAT A TRANSPORTER OF MOTOR
VEHICLES BY THE DRIVEAWAY OR CARAVANING METHOD WAS IN BONA FIDE
OPERATION IN CERTAIN STATES ON AND SINCE JUNE 1, 1935, AND THE
COMMISSION'S DETERMINATION THAT HE WAS, AND THAT HE WAS ENTITLED IN
THOSE STATES TO RIGHTS UNDER THE "GRANDFATHER CLAUSE," MAY NOT BE SET
ASIDE.  P. 23. 

6.  THAT A CARRIER'S STATUS UNDER THE LAW OF A STATE IS THAT OF A
CONTRACT CARRIER, DOES NOT NECESSARILY BAR HIS OBTAINING COMMON CARRIER
RIGHTS THERE UNDER THE "GRANDFATHER CLAUSE."  P. 23. 

7.  WHETHER A CARRIER'S OPERATION IN A PARTICULAR STATE WAS BONA
FIDE, WITHIN THE MEANING OF THE "GRANDFATHER CLAUSE," IS A QUESTION OF
FACT FOR THE COMMISSION TO DETERMINE.  P. 24. 

8.  VIOLATION OF STATE LAW BY A CARRIER, THOUGH RELEVANT TO
ESTABLISHING AN ABSENCE OF "BONA FIDE OPERATION," DOES NOT NECESSARILY
BAR RIGHTS UNDER THE "GRANDFATHER CLAUSE."  P. 24. 

9.  THERE IS EVIDENCE IN THIS CASE TO SUSTAIN THE COMMISSION'S
FINDING THAT THE CARRIER'S OPERATION IN A PARTICULAR STATE WAS BONA
FIDE, NOTWITHSTANDING VIOLATION OF THE STATE LAW, AND THE FINDING IS
SUSTAINED.  P. 24. 

10.  WHERE THE CARRIER'S LAST SHIPMENT TO A PARTICULAR STATE WAS ON
MAY 12, 1935, AND MORE THAN A YEAR ELAPSED BETWEEN JUNE 1, 1935, AND
THE TIME OF THE HEARING ON THE APPLICATION, HELD THAT A GRANT OF
"GRANDFATHER" RIGHTS UNDER SEC. 206(A) - WHICH REQUIRES THAT THE
CARRIER SHALL HAVE BEEN IN BONA FIDE OPERATION ON JUNE 1, 1935, AND
"SINCE THAT TIME" - WAS PROPERLY SET ASIDE.  P. 24. 

ALTON RAILROAD CO. ET AL. V. UNITED STATES ET AL.* 

*TOGETHER WITH NO. 267, UNITED STATES ET AL. V. ALTON RAILROAD CO. ET
AL., ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE EASTERN DISTRICT OF MICHIGAN. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF MICHIGAN. 

APPEAL AND CROSS APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE
JUDGES IN A SUIT BROUGHT TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION, 8 M.C.C. 469. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES ARE AN APPEAL AND A CROSS APPEAL UNDER SEC. 210(28 U.S.C.
SEC. 47A) AND SEC. 238 OF THE JUDICIAL CODE AS AMENDED (28 U.S.C. SEC.
345) TO REVIEW A FINAL DECREE OF A DISTRICT COURT OF THREE JUDGES (28
U.S.C. SEC. 47) WHICH MODIFIED IN PART AND SUSTAINED AS MODIFIED (36
F.SUPP.  898) AN ORDER OF THE INTERSTATE COMMERCE COMMISSION (8 M.C.C.
469) GRANTING APPELLEE FLEMING A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY AS A COMMON CARRIER BY MOTOR VEHICLE UNDER THE SO-CALLED
"GRANDFATHER CLAUSE" (SEC. 206(A)) OF THE MOTOR CARRIER ACT OF 1935. 
FN1  49 STAT. 543, 551, 49 U.S.C. SEC. 306. 

THE FINDINGS OF THE COMMISSION MAY BE BRIEFLY SUMMARIZED AS FOLLOWS:
FLEMING, ON AND SINCE JUNE 1, 1935, WAS ENGAGED IN BONA FIDE OPERATION
AS A COMMON CARRIER BY MOTOR VEHICLE "IN DRIVEAWAY SERVICE OF NEW
AUTOMOTIVE VEHICLES, FINISHED AND UNFINISHED, AND NEW AUTOMOTIVE
VEHICLE CHASSIS."  THIS DRIVEAWAY OR CARAVANING METHOD OF
TRANSPORTATION IS PERFORMED BY INDIVIDUAL DRIVING OF THE VEHICLE UNDER
ITS OWN POWER, BY DRIVING ONE VEHICLE UNDER ITS OWN POWER AND TOWING A
SECOND VEHICLE ATTACHED TO THE FIRST, OR BY DRIVING UNDER ITS OWN POWER
A VEHICLE UPON WHICH ANOTHER VEHICLE IS PARTIALLY OR WHOLLY MOUNTED. 
SHIPMENTS BY FLEMING ORIGINATED FROM THE FACTORIES OF AUTOMOBILE
MANUFACTURERS IN DETROIT, MICHIGAN, AND WERE MADE TO DEALERS AND
DISTRIBUTORS IN VARIOUS STATES.  CERTAIN NEW CARS WERE RETURNED TO
DETROIT IN THE SAME MANNER.  FLEMING COMMENCED OPERATIONS IN 1933, AND
BETWEEN JANUARY 1, 1934 AND JUNE 1, 1935 TRANSPORTED SHIPMENTS TO ONE
POINT EACH IN ARKANSAS AND ALABAMA; TO TWO POINTS EACH IN CALIFORNIA,
NEW YORK, PENNSYLVANIA AND TENNESSEE; TO THREE POINTS EACH IN
WASHINGTON, OREGON, KENTUCKY AND NORTH CAROLINA; TO FOUR POINTS IN
TEXAS; TO FIVE POINTS IN SOUTH CAROLINA; AND TO SEVEN POINTS IN
GEORGIA.  ABOUT 1200 VEHICLES WERE TRANSPORTED IN THIS PERIOD AND MORE
THAN 2100 FROM 1933 TO JULY, 1936, THE TIME OF THE HEARING.  SHIPMENTS
CONSISTED OF FROM ONE TO SIXTEEN VEHICLES, SHIPMENTS OF TWO AND FOUR
BEING THE MOST COMMON.  FLEMING'S SERVICE WAS CONFINED TO DELIVERIES AT
VERY FEW POINTS IN SEVERAL STATES, DUE TO THE FACT THAT HE WAS
FURNISHING A HIGHLY SPECIALIZED TRANSPORTATION SERVICE FROM
MANUFACTURERS TO DEALERS AND DISTRIBUTORS.  SHIPMENTS TO MOST OF THE
STATES NAMED WERE NUMEROUS.  SHIPMENTS TO OTHER STATES WERE FEWER IN
NUMBER.  THUS THE THREE SHIPMENTS TO ARKANSAS AGGREGATED TWENTY-FIVE
VEHICLES, THE FOUR SHIPMENTS EACH TO TEXAS AND OREGON AGGREGATED
FOURTEEN VEHICLES AND TWENTY-FOUR VEHICLES RESPECTIVELY, AND THE FIVE
SHIPMENTS TO WASHINGTON AGGREGATED TWENTY-EIGHT VEHICLES.  OPERATIONS
IN THOSE FOUR STATES STARTED JUST PRIOR TO JUNE 1, 1935; BUT THEY WERE
SUFFICIENT IN SCOPE TO ESTABLISH THAT FLEMING WAS IN BONA FIDE
OPERATION IN THEM ON THE STATUTORY DATE.  FLEMING HELD HIS SERVICES OUT
TO THE PUBLIC GENERALLY AS A COMMON CARRIER AND OPERATED AS SUCH; AND
HE HELD HIMSELF OUT TO TRANSPORT BY THE DRIVEAWAY METHOD BETWEEN ANY
POINTS IN THE STATES FOR WHICH APPLICATION WAS MADE. 

THOUGH HIS TRANSPORTATION OF SHIPMENTS WAS RESTRICTED TO A FEW POINTS
IN EACH OF THE ENUMERATED STATES, THE COMMISSION HELD THAT HE WAS
ENTITLED TO TRANSPORT TO ALL POINTS IN ALL OF THE STATES SERVED, WITH
THE EXCEPTION OF NEW YORK AND PENNSYLVANIA, AS RESPECTS WHICH THE
APPLICATION WAS DENIED.  THE DISTRICT COURT SUSTAINED THE ORDER OF THE
COMMISSION IN ALL RESPECTS EXCEPT THE OPERATION IN ARKANSAS.  AS TO
THAT IT HELD THAT HIS SERVICE HAD BEEN ABANDONED. 

WE ARE MET AT THE OUTSET WITH THE QUESTION OF THE STANDING OF THE
APPELLANT RAILROAD COMPANIES (SEVENTY-ONE IN NUMBER) TO BRING AND
MAINTAIN THE SUIT IN THE DISTRICT COURT.  ALL BUT A FEW INTERVENED IN
THE HEARING BEFORE THE COMMISSION.  EACH IS A COMMON CARRIER AND A
COMPETITOR OF FLEMING IN SOME PORTION OF THE TERRITORY WHICH FLEMING IS
AUTHORIZED TO SERVE.  THEY REST THEIR RIGHT TO SUE ON SEC. 205(H) OF
THE MOTOR CARRIER ACT  FN2  (49 U.S.C. SUPP. SEC. 305(H)) WHICH
PROVIDES THAT "ANY FINAL ORDER MADE UNDER THIS PART SHALL BE SUBJECT TO
THE SAME RIGHT OF RELIEF IN COURT BY ANY PARTY IN INTEREST AS IS NOW
PROVIDED IN RESPECT TO ORDERS OF THE COMMISSION MADE UNDER PART I  ...
"  SEC. 1(20) OF PART I (49 U.S.C. SEC. 1(20)) AUTHORIZES "ANY PARTY IN
INTEREST" TO SUE TO ENJOIN ANY CONSTRUCTION, OPERATION OR ABANDONMENT
OF A RAILROAD MADE CONTRARY TO SEC. 1(18) OR (19).  SUCH SUITS MAY BE
MAINTAINED NOT ONLY WHERE THE RAILROAD PROCEEDS WITHOUT AUTHORIZATION
OF THE COMMISSION BUT ALSO WHERE IT PROCEEDS UNDER A CERTIFICATE OF THE
COMMISSION WHOSE VALIDITY IS CHALLENGED.  CLAIBORNE-ANNAPOLIS FERRY CO.
V. UNITED STATES, 285 U.S. 382.  HENCE WE CONCLUDE THAT SEC. 205(H) HAS
INCORPORATED BY REFERENCE THE "PARTY IN INTEREST" PROVISION OF SEC.
1(20).  WE DO NOT STOP TO INQUIRE WHAT EFFECT, IF ANY, THE STATUS OF
APPELLANT RAILROAD COMPANIES AS INTERVENORS BEFORE THE COMMISSION HAD
ON THEIR RIGHT TO BRING AND MAINTAIN THIS SUIT.  CF. CHICAGO JUNCTION
CASE, 264 U.S. 258, WITH PITTSBURGH & WEST VIRGINIA RY. CO. V. UNITED
STATES, 281 U.S. 479.  THEY CLEARLY HAVE A STAKE AS CARRIERS IN THE
TRANSPORTATION SITUATION WHICH THE ORDER OF THE COMMISSION AFFECTED. 
THEY ARE COMPETITORS OF FLEMING FOR AUTOMOBILE TRAFFIC IN TERRITORY
SERVED BY HIM.  THEY ARE TRANSPORTATION AGENCIES DIRECTLY AFFECTED BY
COMPETITION WITH THE MOTOR TRANSPORT INDUSTRY - COMPETITION WHICH PRIOR
TO THE MOTOR CARRIER ACT OF 1935 HAD PROVED DESTRUCTIVE.  S. DOC. NO.
152, 73D CONG., 2D SESS., PP. 13-27.  THEY ARE MEMBERS OF THE NATIONAL
TRANSPORTATION SYSTEM WHICH THAT ACT WAS DESIGNED TO COORDINATE.  S.
REP. NO. 482, 74TH CONG., 1ST SESS.; H. REP. NO. 1645, 74TH CONG., 1ST
SESS.  HENCE THEY ARE PARTIES IN INTEREST WITHIN THE MEANING OF SEC.
205(H) UNDER THE TESTS ANNOUNCED IN TEXAS & PACIFIC RY. CO. V. GULF, C.
& S.F. RY. CO., 270 U.S. 266; WESTERN PACIFIC CALIFORNIA R. CO. V.
SOUTHERN PACIFIC CO., 284 U.S. 47; AND CLAIBORNE-ANNAPOLIS FERRY CO. V.
UNITED STATES, SUPRA. 

THE APPELLANT RAILROAD COMPANIES EARNESTLY CONTEND THAT THE
COMMISSION WAS WITHOUT AUTHORITY TO AUTHORIZE FLEMING TO SERVE A WHOLE
STATE WHERE, AS HERE, HIS SERVICES HAD BEEN IN FACT LIMITED TO ONLY A
FEW POINTS IN THE STATE.  THE ARGUMENT IS THAT ANY RIGHTS OBTAINED
UNDER THE "GRANDFATHER CLAUSE" SHOULD BE DELIMITED TO THE ACTUAL AREA
IN WHICH THE APPLICANT WAS IN BONA FIDE OPERATION DURING THE PERIOD IN
QUESTION.  SEC. 206(A) PROVIDES FOR THE ISSUANCE OF A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY WITHOUT PROOF BEYOND THE FACT THAT THE
APPLICANT OR HIS PREDECESSOR IN INTEREST "WAS IN BONA FIDE OPERATION AS
A COMMON CARRIER BY MOTOR VEHICLE ON JUNE 1, 1935, OVER THE ROUTE OR
ROUTES OR WITHIN THE TERRITORY FOR WHICH APPLICATION IS MADE AND HAS SO
OPERATED SINCE THAT TIME."  SEC. 208(A) PROVIDES THAT SUCH CERTIFICATE
"SHALL SPECIFY THE SERVICE TO BE RENDERED AND THE ROUTES OVER WHICH,
THE FIXED TERMINI, IF ANY, BETWEEN WHICH, AND THE INTERMEDIATE AND OFF
ROUTE POINTS, IF ANY, AT WHICH, AND IN CASE OF OPERATIONS NOT OVER
SPECIFIED ROUTES OR BETWEEN FIXED TERMINI, THE TERRITORY WITHIN WHICH,
THE MOTOR CARRIER IS AUTHORIZED TO OPERATE."  THE AUTHORITY GRANTED
FLEMING WAS TO OPERATE IN THE DESIGNATED TERRITORY "OVER IRREGULAR
ROUTES" THROUGH SPECIFIED STATES.  IT IS PLAIN FROM THE STATUTE THAT
OPERATIONS NEED NOT BE RESTRICTED TO SPECIFIED ROUTES OR BETWEEN FIXED
TERMINI.  BUT THE QUESTION REMAINS AS TO THE POWER OF THE COMMISSION TO
AUTHORIZE OPERATION IN AN ENTIRE STATE WHERE ONLY A FEW POINTS IN THAT
STATE HAD BEEN SERVED. 

"TERRITORY" IS NOT A WORD OF ART. THE CHARACTERISTICS OF THE
TRANSPORTATION SERVICE INVOLVED AS WELL AS THE GEOGRAPHICAL AREA
SERVICED ARE RELEVANT TO THE TERRITORIAL SCOPE OF THE OPERATIONS WHICH
MAY BE AUTHORIZED UNDER THE "GRANDFATHER CLAUSE."  WHILE THE TEST OF
"BONA FIDE OPERATION" WITHIN A SPECIFIED "TERRITORY" INCLUDES "ACTUAL
RATHER THAN POTENTIAL OR SIMULATED SERVICE" (MCDONALD V. THOMPSON, 305
U.S. 263, 266), IT DOES NOT NECESSARILY RESTRICT FUTURE OPERATIONS TO
THE PRECISE POINTS OR AREAS ALREADY SERVED.  THE CHARACTERISTICS OF THE
TRANSPORTATION SERVICE RENDERED MAY OF NECESSITY HAVE MADE TRIPS TO ANY
SPECIFIED LOCALITY IRREGULAR OR SPORADIC.  AND THEY MAY LIKEWISE HAVE
RESTRICTED PRIOR OPERATIONS TO BUT A FEW POINTS IN A WIDE AREA WHICH
THE CARRIER HELD ITSELF OUT AS BEING WILLING AND ABLE TO SERVE.  THE
COMMISSION HAS TAKEN THE CHARACTERISTICS OF VARIOUS TRANSPORTATION
SERVICES INTO CONSIDERATION IN DETERMINING THE SCOPE OF THE TERRITORY
COVERED BY CERTIFICATES UNDER THE "GRANDFATHER CLAUSE."  THUS,
OPERATIONS ON IRREGULAR ROUTES WITHIN A WIDE TERRITORY HAVE BEEN
AUTHORIZED IN CASE OF COMMON CARRIERS OF HOUSEHOLD GOODS.  BRUCE
TRANSFER & STORAGE CO., 2 M.C.C. 150; WILLIAM J. WRUCK, 12 M.C.C. 150. 
SIMILAR BROAD AUTHORITY HAS BEEN GRANTED COMMON CARRIERS OF OILFIELD
EQUIPMENT AND SUPPLIES.  CHARLES B. GREER, JR., 3 M.C.C. 483; UNION
CITY TRANSFER, 7 M.C.C. 717; L.C. JONES TRUCKING CO., 9 M.C.C. 740. 
AND A LIKE RESULT HAS BEEN REACHED IN CASE OF AUTOMOBILE TRANSPORTERS
SUCH AS THE APPLICANT IN THE INSTANT CASE.  GEORGE CASSENS & SONS, 1
M.C.C. 771.  AND SEE CHARLES E. DANBURY, 17 M.C.C. 243.  THE GENERAL
THEORY UNDERLYING THE HOUSEHOLD GOODS CASES WAS EXPRESSED IN W. J.
WRUCK, SUPRA, PP. 151-152, AS FOLLOWS: 

"CALLS FOR SERVICE BETWEEN THE SAME POINTS ARE SELDOM REPEATED. 
TRAFFIC IS NOT REGULAR IN ANY GIVEN DIRECTION.  WHAT MAY BE INFREQUENT
BUT FAIRLY REGULAR BUSINESS TO OR FROM A CERTAIN STATE FOR A SMALL
CARRIER MAY BE ONLY SPORADIC BUSINESS FOR A LARGE CARRIER;
CONSEQUENTLY, A FREQUENCY OF SERVICE THAT MIGHT AMOUNT TO 'GRANDFATHER'
CLAUSE RIGHTS IN THE CASE OF THE FORMER COULD CONCEIVABLY BE INADEQUATE
IN THE CASE OF THE LATTER.  IT WOULD BE AN IMPRACTICAL SOLUTION TO
CARVE OUT ODDLY SHAPED AREAS FOR SERVICE BASED SOLELY ON THE FREQUENCY
OF SERVICE; CONSIDERATION MUST ALSO BE GIVEN TO THE GENERAL TERRITORY
SERVED UNDER THE HOLDING-OUT, EVEN IF THE BUSINESS IN SOME STATES MAY
NOT EQUAL THAT IN OTHER STATES IN THE TERRITORY." 

THE COMMISSION TOOK A SOMEWHAT SIMILAR APPROACH TO THE PROBLEM
PRESENTED IN THE INSTANT CASE.  IT NOTED THAT FLEMING WAS RESTRICTED TO
SHIPMENTS AT POINTS WHERE THE MANUFACTURERS HAD ESTABLISHED
DISTRIBUTION FACILITIES; THAT THOSE FACILITIES WERE LIMITED IN ANY
GIVEN AREA; THAT FLEMING'S OPPORTUNITY FOR SERVICE WAS THEREFORE
CONFINED TO A VERY FEW DISTRIBUTION POINTS AND HIS OPERATIONS WERE
IRREGULAR; THAT LESS THAN AN ESTIMATED SEVEN PER CENT OF ALL NEW
AUTOMOBILES SOLD DURING 1935 IN TWENTY-FOUR WESTERN STATES WERE
TRANSPORTED BY THE DRIVEAWAY METHOD; THAT DISTRIBUTION POINTS IN THE
AUTOMOBILE INDUSTRY ARE CONSTANTLY SHIFTED; THAT ALLOWANCE MUST BE MADE
FOR FREQUENT CHANGES IN POINTS SERVED BY A CARRIER WHO DEPENDS FOR HIS
TRAFFIC ENTIRELY UPON THIS ONE INDUSTRY; AND THAT FLEMING'S FUTURE
OPPORTUNITY FOR OBTAINING TRAFFIC WILL DOUBTLESS BE AS LIMITED AS IN
THE PAST.  IN VIEW OF THE SCOPE OF HIS HOLDING OUT AND THE NATURE AND
CHARACTERISTICS OF THE HIGHLY SPECIALIZED TRANSPORTATION SERVICE
RENDERED, THE COMMISSION AUTHORIZED CONTINUANCE OF HIS SERVICE TO ALL
POINTS IN THE ENUMERATED STATES.  THAT IS A JUDGMENT WHICH WE SHOULD
RESPECT.  CERTAINLY WE CANNOT SAY THAT IT WAS A WHOLLY INAPPROPRIATE
METHOD FOR CREATING THAT SUBSTANTIAL PARITY BETWEEN FUTURE OPERATIONS
AND PRIOR BONA FIDE OPERATIONS WHICH THE STATUTE CONTEMPLATES.  THE
SPECIAL CHARACTERISTICS OF THIS ROVING TRANSPORTATION SERVICE MAKE
TENABLE THE CONCLUSION THAT FLEMING'S PRIOR LIMITED OPPORTUNITY FOR
SERVICE COULD NOT BE PRESERVED UNLESS STATEWIDE AREAS, WITHIN THE SCOPE
OF HIS HOLDING OUT AND PARTIALLY COVERED BY HIS PREVIOUS OPERATIONS,
WERE KEPT OPEN FOR HIM.  THAT JUDGMENT IS FOR THE ADMINISTRATIVE
EXPERTS, NOT THE COURTS. 

APPELLANT RAILROAD COMPANIES ALSO URGE THAT FLEMING SHOULD NOT HAVE
BEEN AWARDED ANY RIGHTS UNDER THE "GRANDFATHER CLAUSE" IN WASHINGTON,
OREGON, AND CALIFORNIA.  BEFORE JUNE 1, 1935, FLEMING HAD MADE FIVE
DELIVERIES TO THREE DIFFERENT POINTS IN WASHINGTON, FOUR DELIVERIES TO
THREE DIFFERENT POINTS IN OREGON, AND AT LEAST TWO DELIVERIES TO TWO
DIFFERENT POINTS IN CALIFORNIA.  AFTER JUNE 1, 1935, AND PRIOR TO THE
HEARING IN JULY 1936, TWO DELIVERIES WERE MADE IN WASHINGTON, TWO IN
OREGON, AND APPARENTLY SEVERAL IN CALIFORNIA.  THESE SHIPMENTS DID NOT
APPEAR TO BE MERELY NOMINAL.  FN3  THUS THERE WAS EVIDENCE THAT ON AND
SINCE JUNE 1, 1935, FLEMING HAD BEEN IN BONA FIDE OPERATION IN THOSE
STATES.  THE WEIGHING OF SUCH EVIDENCE INVOLVES IN PART A JUDGMENT
BASED ON THE CHARACTERISTICS OF THE HIGHLY SPECIALIZED TRANSPORTATION
SERVICE INVOLVED.  THUS, AS WE HAVE SAID, THAT FUNCTION IS PECULIARLY
ONE FOR THE COMMISSION, NOT THE COURTS.    APPELLANT RAILROAD COMPANIES
ALSO INSIST THAT FLEMING WAS NOT IN "BONA FIDE OPERATION" IN OREGON
BECAUSE IN JANUARY, 1936 HE OBTAINED IN THAT STATE A CONTRACT CARRIER
PERMIT.  THE ARGUMENT IS THAT HE COULD NOT OBTAIN UNDER THE
"GRANDFATHER CLAUSE" COMMON CARRIER RIGHTS IN OREGON IN THE FACE OF HIS
CONTRACT CARRIER STATUS THERE.  CF. UNITED STATES V. MAHER, 307 U.S.
148.  THEY FURTHER URGE THAT FLEMING'S OPERATIONS IN NEBRASKA (ONE OF
THE STATES THROUGH WHICH HIS IRREGULAR ROUTES WERE AUTHORIZED) WERE
CONDUCTED IN VIOLATION OF STATE LAW.  IN THAT CONNECTION, RELIANCE IS
PLACED ON HIS TESTIMONY THAT IN NEBRASKA HE CLAIMED TO BE THE OWNER OF
THE VEHICLES IN ORDER TO REDUCE LICENSE FEES.  THE EXPRESSION "IN BONA
FIDE OPERATION" PLAINLY "DOES NOT EXTEND TO ONE OPERATING AS A COMMON
CARRIER ON PUBLIC HIGHWAYS OF A STATE IN DEFIANCE OF ITS LAWS." 
MCDONALD V. THOMPSON, SUPRA, P. 266.  CONGRESS HAS NOT, HOWEVER,
CONDITIONED RIGHTS UNDER THE "GRANDFATHER CLAUSE" ON COMPLIANCE WITH
STATE LAWS.  THEIR VIOLATION IS MATERIAL ONLY INSOFAR AS IT MAY BE
RELEVANT TO ESTABLISHING AN ABSENCE OF "BONA FIDE OPERATION." 
INFRACTIONS OF STATE LAW, HOWEVER, MAY BE INNOCENT OR WILFUL, MINOR OR
CONSIDERABLE.  THEY MAY OR MAY NOT CONCERN THE RIGHT TO OPERATE IN THE
STATE.  FURTHERMORE, THE STATUS OF A CARRIER UNDER STATE LAW MAY OR MAY
NOT BE IDENTICAL WITH HIS STATUS AS A COMMON OR CONTRACT CARRIER UNDER
THE MOTOR CARRIER ACT.  THE QUESTION WHETHER HIS OPERATION IN A
PARTICULAR STATE WAS "BONA FIDE" IS A QUESTION OF FACT FOR THE
COMMISSION TO DETERMINE.  SUCH OPERATION MIGHT WELL BE IN GOOD FAITH
THOUGH STATE LAWS WERE INFRACTED.  AND THE FACT THAT AN APPLICANT MAY
HAVE TO MAKE HIS PEACE WITH STATE AUTHORITIES DOES NOT NECESSARILY MEAN
THAT HIS RIGHTS UNDER THE "GRANDFATHER CLAUSE" SHOULD BE DENIED OR
WITHHELD.  SEE EARL W. SLAGLE, 2 M.C.C. 127.  OCCASIONAL NONCOMPLIANCE
WITH STATE LAWS DOES NOT PER SE ESTABLISH A COURSE OF CONDUCT WHICH IS
PREPONDERANTLY ONE OF EVASION.  CERTAINLY NO SUCH COURSE OF CONDUCT CAN
BE FAIRLY IMPLIED IN THIS CASE.  OUR TASK IS ENDED IF THERE IS EVIDENCE
TO SUPPORT THE COMMISSION'S FINDING OF BONA FIDES.  THERE IS SUCH
EVIDENCE HERE. 

IT IS URGED ON THE CROSS APPEAL THAT THE COURT BELOW SHOULD NOT HAVE
SET ASIDE THE COMMISSION'S INCLUSION OF ARKANSAS IN THE CERTIFICATE. 
THE EVIDENCE WAS THAT FLEMING HAD SERVED ONLY ONE LOCALITY IN ARKANSAS
THE CITY OF TEXARKANA.  HE HAD MADE THREE SHIPMENTS THERE AGGREGATING
TWENTY-FIVE VEHICLES.  ALL OF THOSE SHIPMENTS HAD BEEN MADE PRIOR TO
JUNE 1, 1935, THE LATEST BEING MAY 12, 1935.  THOUGH FOURTEEN MONTHS
EXPIRED BETWEEN THAT DATE AND THE DATE OF THE HEARING, THERE WAS NO
EVIDENCE THAT ANY SHIPMENTS WERE MADE TO ANY LOCALITY IN ARKANSAS SINCE
JUNE 1, 1935.  NO EXPLANATION OF THAT LONG HIATUS WAS PROFFERED.  BUT
SEC. 206(A) REQUIRES A FINDING OF "BONA FIDE OPERATION  ...  WITHIN THE
TERRITORY" NOT ONLY "ON JUNE 1, 1935" BUT ALSO "SINCE THAT TIME."  WE
CANNOT SAY THAT AN UNEXPLAINED FAILURE TO MAKE ANY SHIPMENTS TO
ARKANSAS FOR OVER A YEAR "SINCE THAT TIME" SATISFIES THE STATUTORY
COMMAND, EVEN THOUGH THE NATURE OF THE HIGHLY SPECIALIZED
TRANSPORTATION SERVICE INVOLVED BE GIVEN THE GREATEST WEIGHT.  CF.
UNITED STATES V. MAHER, SUPRA.  A MERE HOLDING OUT WILL NOT ALONE
SUFFICE TO BRIDGE THE LONG GAP EXTENDING THROUGH AND BEYOND ONE ENTIRE
AUTOMOBILE PRODUCTION YEAR, SINCE APPLICANT CARRIES THE BURDEN OF
ESTABLISHING HIS RIGHT TO THE STATUTORY GRANT. 

WE HAVE CONSIDERED THE OTHER POINTS RAISED BY APPELLANT RAILROAD
COMPANIES AND FIND THEM WITHOUT SUBSTANCE.  AFFIRMED. 

FN1  THE MOTOR CARRIER ACT OF 1935 IS NOW DESIGNATED AS PART II OF
THE INTERSTATE COMMERCE ACT.  54 STAT. 919. 

FN2  NOW SEC. 205(G) OF PART II OF THE INTERSTATE COMMERCE ACT.  54
STAT. 922; 49 U.S.C. SEC. 305(G). 

FN3  AS TO CALIFORNIA THE EVIDENCE WAS LESS SPECIFIC THAN IN THE
OTHER STATES.  SHIPPING BILLS SHOWED THREE DELIVERIES TO CALIFORNIA
AGGREGATING FIVE VEHICLES, THE LATEST BEING IN DECEMBER, 1935.  IN
ADDITION, THERE WAS TESTIMONY THAT SHORTLY PRIOR TO THE HEARING IN 1936
DELIVERIES OF TAXICABS AND TRUCKS HAD BEEN MADE IN THAT STATE. 

MR. JUSTICE ROBERTS DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :


















TAYLOR V. GEORGIA, 315 U.S. 25 


NO. 70.  ARGUED DECEMBER 15, 16, 1941.  - DECIDED JANUARY 12, 1942.  -
191 GA. 682, 13 S.E.2D 647, REVERSED. 


1.  PEONAGE IS A FORM OF INVOLUNTARY SERVITUDE, WITHIN THE MEANING OF
THE THIRTEENTH AMENDMENT; AND THE ACT OF CONGRESS OF MARCH 2, 1867 IS
AN APPROPRIATE IMPLEMENTATION OF THAT AMENDMENT.  P. 29. 

2.  A STATE STATUTE MAKING IT A CRIME FOR ANY PERSON TO CONTRACT WITH
ANOTHER TO PERFORM SERVICES OF ANY KIND, AND THEREUPON OBTAIN IN
ADVANCE MONEY OR OTHER THING OF VALUE, WITH INTENT NOT TO PERFORM SUCH
SERVICE; AND PROVIDING FURTHER THAT FAILURE TO PERFORM THE SERVICE OR
TO RETURN THE MONEY, WITHOUT GOOD AND SUFFICIENT CAUSE, SHALL BE DEEMED
PRESUMPTIVE EVIDENCE OF INTENT, AT THE TIME OF MAKING THE CONTRACT, NOT
TO PERFORM SUCH SERVICE, HELD VIOLATIVE OF THE THIRTEENTH AMENDMENT AND
THE ACT OF 1867.  P. 29. 

THE NECESSARY CONSEQUENCE OF SUCH STATUTE IS THAT ONE WHO HAS
RECEIVED AN ADVANCE ON A CONTRACT FOR SERVICES WHICH HE IS UNABLE TO
REPAY IS BOUND BY THE THREAT OF PENAL SANCTION TO REMAIN AT HIS
EMPLOYMENT UNTIL THE DEBT HAS BEEN DISCHARGED.  SUCH COERCED LABOR IS
PEONAGE. 

TAYLOR V. GEORGIA. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

APPEAL FROM A JUDGMENT AFFIRMING A CONVICTION FOR VIOLATION OF A
STATE STATUTE. 

OPINION OF THE COURT BY MR. JUSTICE BYRNES, ANNOUNCED BY THE CHIEF
JUSTICE. 

APPELLANT WAS INDICTED IN THE SUPERIOR COURT OF WILKINSON COUNTY,
GEORGIA, FOR VIOLATION OF SECS. 7408 AND 7409, OF TITLE 26 OF THE
GEORGIA CODE.  SECTION 7408 PROVIDES: 

"ANY PERSON WHO SHALL CONTRACT WITH ANOTHER TO PERFORM FOR HIM
SERVICES OF ANY KIND, WITH INTENT TO PROCURE MONEY OR OTHER THING OF
VALUE THEREBY, AND NOT TO PERFORM THE SERVICE CONTRACTED FOR, TO THE
LOSS AND DAMAGE OF THE HIRER, OR, AFTER HAVING SO CONTRACTED, SHALL
PROCURE FROM THE HIRER MONEY, OR OTHER THING OF VALUE, WITH INTENT NOT
TO PERFORM SUCH SERVICE, TO THE LOSS AND DAMAGE OF THE HIRER, SHALL BE
DEEMED A COMMON CHEAT AND SWINDLER, AND UPON CONVICTION SHALL BE
PUNISHED AS FOR A MISDEMEANOR."  FN1  AND SECTION 7409 DECLARES: 

"SATISFACTORY PROOF OF THE CONTRACT, THE PROCURING THEREON OF MONEY
OR OTHER THING OF VALUE, THE FAILURE TO PERFORM THE SERVICES SO
CONTRACTED FOR, OR FAILURE TO RETURN THE MONEY SO ADVANCED WITH
INTEREST THEREON AT THE TIME SAID LABOR WAS TO BE PERFORMED, WITHOUT
GOOD AND SUFFICIENT CAUSE, AND LOSS OR DAMAGE TO THE HIRER, SHALL BE
DEEMED PRESUMPTIVE EVIDENCE OF THE INTENT REFERRED TO IN THE PRECEDING

THE INDICTMENT ALLEGED THAT APPELLANT HAD ENTERED INTO A CONTRACT
WITH R. L. HARDIE TO PERFORM MANUAL LABOR FOR $1.25 A DAY UNTIL HE HAD
EARNED $19.50 AT THAT RATE, THAT HE HAD DONE SO WITH THE INTENT NOT TO
PERFORM THE SERVICES, THAT HE HAD THUS OBTAINED THE $19.50 AS AN
ADVANCE, THAT HE HAD FAILED WITHOUT GOOD AND SUFFICIENT CAUSE TO DO THE
WORK, THAT HE HAD FAILED AND REFUSED TO REPAY THE $19.50, AND THAT LOSS
AND DAMAGE TO HARDIE HAD RESULTED.  APPELLANT DEMURRED TO THE
INDICTMENT, ASSERTING THAT SECS. 7408 AND 7409, UPON WHICH IT WAS
BASED, WERE REPUGNANT BOTH TO THE THIRTEENTH AMENDMENT AND THE ACT OF
CONGRESS PASSED PURSUANT TO IT,  FN3  AND TO THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT.  THE DEMURRER WAS OVERRULED, EXCEPTION WAS
TAKEN, AND THE CASE WENT TO TRIAL. 

HARDIE WAS THE ONLY WITNESS FOR THE STATE.  HE TESTIFIED THAT THE
AGREEMENT HAD BEEN MADE, THAT HE HAD ADVANCED THE $19.50, THAT
APPELLANT HAD NEITHER DONE THE WORK NOR RETURNED THE MONEY, AND THAT
ALTHOUGH APPELLANT HAD SAID SOMETHING ABOUT BEING SICK, HE HAD GIVEN NO
VISIBLE SIGN OF IT AND HAD NOT BEEN CONFINED TO BED.  UNDER THE
STATUTES OF GEORGIA,  FN4  APPELLANT COULD NOT TESTIFY UNDER OATH, BUT
HE WAS PERMITTED TO MAKE AN UNSWORN STATEMENT IN WHICH HE GENERALLY
DENIED THAT HE AND HARDIE HAD MADE THE AGREEMENT OR THAT HARDIE HAD
PAID HIM THE $19.50.  THE TRIAL JUDGE CHARGED THE JURY IN THE LANGUAGE
OF SECS. 7408 AND 7409.  HE REFUSED TO INSTRUCT THE JURY THAT THESE
THE CONSTITUTION OF THE UNITED STATES. 

THE JURY RETURNED A VERDICT OF GUILTY AND JUDGMENT OF CONVICTION WAS
ENTERED.  APPELLANT MOVED FOR A NEW TRIAL ON THE GROUND THAT SECS. 7408
AND 7409 VIOLATED PROVISIONS OF BOTH THE FEDERAL AND STATE
CONSTITUTIONS, AND THE MOTION WAS DENIED.  ON APPEAL, THE CONVICTION
WAS AFFIRMED BY THE SUPREME COURT OF GEORGIA.  191 GA. 682, 13 S.E.2D
647. 

WE THINK THE CONVICTION MUST BE REVERSED.  THERE IS NO MATERIAL
DISTINCTION BETWEEN THE GEORGIA STATUTES CHALLENGED HERE AND THE
ALABAMA STATUTE WHICH WAS HELD TO VIOLATE THE THIRTEENTH AMENDMENT IN
BAILEY V. ALABAMA, 219 U.S. 219.  FN5  IT IS ARGUED HERE, JUST AS IT
WAS IN THE BAILEY CASE, THAT THE PURPOSE OF SEC. 7408 IS NOTHING MORE
THAN THE PUNISHMENT OF A SPECIES OF FRAUD, NAMELY, THE OBTAINING OF
MONEY BY A PROMISE TO PERFORM SERVICES WITH INTENT NEVER TO PERFORM
THEM.  AND THE PRESUMPTION CREATED BY SEC. 7409 IS SAID TO BE MERELY A
RULE OF EVIDENCE FOR THE TRIAL OF CASES ARISING UNDER SEC. 7408. 
ACTUALLY, HOWEVER, SEC. 7409 EMBODIES A SUBSTANTIVE PROHIBITION WHICH
SQUARELY CONTRAVENES THE THIRTEENTH AMENDMENT AND THE ACT OF CONGRESS
OF MARCH 2, 1867.  FN6  ITS EFFECT IS TO AUTHORIZE THE JURY TO CONVICT
UPON PROOF THAT AN AGREEMENT HAS BEEN REACHED, THAT MONEY HAS BEEN
ADVANCED ON THE STRENGTH OF IT, THAT THE MONEY HAS NOT BEEN RETURNED,
THAT THE APPELLANT HAS FAILED OR REFUSED TO PERFORM THE SERVICES
"WITHOUT GOOD AND SUFFICIENT CAUSE," AND NOTHING MORE.  THE NECESSARY
CONSEQUENCE IS THAT ONE WHO HAS RECEIVED AN ADVANCE ON A CONTRACT FOR
SERVICES WHICH HE IS UNABLE TO REPAY IS BOUND BY THE THREAT OF PENAL
SANCTION TO REMAIN AT HIS EMPLOYMENT UNTIL THE DEBT HAS BEEN
DISCHARGED.  SUCH COERCED LABOR IS PEONAGE.  AND IT IS NO LESS SO
BECAUSE A PRESUMED INITIAL FRAUD RATHER THAN A SUBSEQUENT BREACH OF THE
EMPLOYMENT CONTRACT IS THE ASSERTED TARGET OF THE STATUTE.  IT IS OF
COURSE CLEAR THAT PEONAGE IS A FORM OF INVOLUNTARY SERVITUDE WITHIN THE
MEANING OF THE THIRTEENTH AMENDMENT AND THAT THE ACT OF 1867 IS AN
"APPROPRIATE" IMPLEMENTATION OF THAT AMENDMENT.  CLYATT V. UNITED
STATES, 197 U.S. 207. 

WE ARE TOLD THAT THE MANNER IN WHICH THESE SECTIONS HAVE BEEN
INTERPRETED BY THE COURTS OF GEORGIA RESCUES THEM FROM INVALIDITY.  IT
IS URGED THAT THE PHRASE "WITHOUT GOOD AND SUFFICIENT CAUSE," WHICH
APPEARS IN SEC. 7409, IN EFFECT REQUIRES PROOF OF FRAUDULENT INTENT AT
THE TIME OF MAKING THE CONTRACT AND OBTAINING THE MONEY.  BUT THIS
ARGUMENT IS WIDE OF THE MARK.  THE WORDS "WITHOUT GOOD AND SUFFICIENT
CAUSE" PLAINLY REFER TO THE FAILURE TO PERFORM THE SERVICES OR TO
RETURN THE MONEY ADVANCED.  SINCE THE SUBSEQUENT BREACH OF THE CONTRACT
BY THE DEFENDANT, HOWEVER CAPRICIOUS OR REPREHENSIBLE, DOES NOT
ESTABLISH A FRAUDULENT INTENT AT THE INITIAL STAGE OF THE TRANSACTION,
THE CONTENT WHICH HAS BEEN ASSIGNED TO THE PHRASE "WITHOUT GOOD AND
SUFFICIENT CAUSE" BY THE GEORGIA COURTS IS IMMATERIAL.  SEE BAILEY V.
ALABAMA, 219 U.S. AT 233-234. 

MOREOVER, AS THE COURT OBSERVED IN THE BAILEY CASE, "THE CONTROLLING
CONSTRUCTION OF THE STATUTE IS THE AFFIRMANCE OF THIS JUDGMENT OF
CONVICTION."  219 U.S. AT 235.  THE MOST THAT THE JURY COULD HAVE FOUND
IN THE EVIDENCE HERE WAS PROOF THAT THE CONTRACT HAD BEEN MADE, THAT
$19.50 HAD BEEN ADVANCED, THAT THE APPELLANT HAD FAILED TO DO THE WORK
OR TO RETURN THE MONEY, AND PERHAPS THAT THIS FAILURE HAD BEEN "WITHOUT
GOOD AND SUFFICIENT CAUSE."  THE PRESUMPTION CREATED BY SEC. 7409 WAS
THUS ESSENTIAL TO THE CONVICTION. 

IT IS TRUE THAT IT APPEARS FROM THE RECORD THAT THE SUPREME COURT OF
GEORGIA REGARDED IT AS UNNECESSARY TO DETERMINE THE SUFFICIENCY OF THE
EVIDENCE TO SUPPORT THE VERDICT BECAUSE "THE DEFENDANT RELIES SOLELY ON
CONSTITUTIONAL GROUNDS."  AND IT IS ALSO TRUE THAT IT APPEARS FROM THE
RECORD THAT IN HIS BRIEF IN THAT COURT THE APPELLANT STATED:  "INASMUCH
AS THE DEFENDANT IN SEEKING TO SET ASIDE HIS CONVICTION RELIES SOLELY
ON CONSTITUTIONAL GROUNDS, THE EVIDENCE SET OUT IN THE RECORD IS
MATERIAL ONLY IN SO FAR AS IT RELATES TO THESE GROUNDS."  HOWEVER, THE
ONLY POSSIBLE CONSTRUCTION OF THIS STATEMENT, IN THE LIGHT OF
APPELLANT'S CONSISTENT ATTACK UPON THE PRESUMPTION CREATED BY SEC.
7409, IS THAT APPELLANT AGREED TO WAIVE ANY CONTENTION THAT THE
EVIDENCE WAS INSUFFICIENT TO ESTABLISH THE FACTORS DECLARED BY THAT
CANNOT FAIRLY BE SAID TO HAVE CONCEDED MORE.  CONSEQUENTLY, THE GEORGIA
SUPREME COURT COULD NOT ESCAPE THE NECESSITY OF PASSING UPON THE
VALIDITY OF THE PRESUMPTION RAISED BY SEC. 7409 IN ORDER TO SUSTAIN THE
CONVICTION. 

WE ARE AWARE THAT IN WILSON V. STATE, 138 GA. 489, 75 S.E. 619, THE
SUPREME COURT OF GEORGIA HELD THAT BAILEY V. ALABAMA DOES NOT REQUIRE
THE INVALIDATION OF THESE SECTIONS.  ITS ERROR IN SO DOING AROSE FROM A
MISCONCEPTION OF THE SCOPE OF THE BAILEY DECISION.  TO BE SURE, A
JUDICIALLY CREATED RULE IN ALABAMA DENIED TO A DEFENDANT THE
OPPORTUNITY TO MAKE ANY KIND OF STATEMENT AS TO HIS UNCOMMUNICATED
MOTIVES, AND THIS CIRCUMSTANCE DREW THE NOTICE OF THE COURT.  219 U.S.
AT 228, 236.  IN GEORGIA, ON THE OTHER HAND, A DEFENDANT IS PERMITTED
TO MAKE AN UNSWORN STATEMENT IF HE CHOOSES.  BUT THE OPINION IN THE
BAILEY CASE LEAVES NO DOUBT THAT THIS FACTOR WAS FAR FROM CONTROLLING
AND THAT ITS EFFECT WAS SIMPLY TO ACCENTUATE THE HARSHNESS OF AN
OTHERWISE INVALID STATUTE. 

WE THINK THAT THE SECTIONS OF THE GEORGIA CODE UPON WHICH THIS
CONVICTION RESTS ARE REPUGNANT TO THE THIRTEENTH AMENDMENT AND TO THE
ACT OF 1867, AND THAT THE CONVICTION MUST THEREFORE BE REVERSED. 
REVERSED. 

FN1  SECTION 1065 OF THE GEORGIA PENAL CODE (GA. CODE (1933), TITLE
27, SEC. 2506) PROVIDES: "EXCEPT WHERE OTHERWISE PROVIDED, EVERY CRIME
DECLARED TO BE A MISDEMEANOR SHALL BE PUNISHABLE BY A FINE NOT TO
EXCEED $1,000, IMPRISONMENT NOT TO EXCEED SIX MONTHS, TO WORK IN THE
CHAIN GANG ON THE PUBLIC ROADS, OR ON SUCH OTHER PUBLIC WORKS AS THE
COUNTY OR STATE AUTHORITIES MAY EMPLOY THE CHAIN GANG, NOT TO EXCEED 12
MONTHS, ANY ONE OR MORE OF THESE PUNISHMENTS IN THE DISCRETION OF THE
JUDGE  ...  " 

FN2  THESE TWO SECTIONS WERE ENACTED AS SECTIONS ONE AND TWO OF THE
ACT OF AUGUST 15, 1903.  GA. LAWS (1903) 90. 

FN3  THE THIRTEENTH AMENDMENT READS:  "SECTION 1.  NEITHER SLAVERY
NOR INVOLUNTARY SERVITUDE, EXCEPT AS A PUNISHMENT FOR CRIME WHEREOF THE
PARTY SHALL HAVE BEEN DULY CONVICTED, SHALL EXIST WITHIN THE UNITED
STATES, OR ANY PLACE SUBJECT TO THEIR JURISDICTION. 

"SECTION 2.  CONGRESS SHALL HAVE POWER TO ENFORCE THIS ARTICLE BY
APPROPRIATE LEGISLATION." 

U.S.C., TITLE 8, SEC. 56, READS:  "THE HOLDING OF ANY PERSON TO
SERVICE OR LABOR UNDER THE SYSTEM KNOWN AS PEONAGE IS ABOLISHED AND
FOREVER PROHIBITED IN ANY TERRITORY OR STATE OF THE UNITED STATES; AND
ALL ACTS, LAWS, RESOLUTIONS, ORDERS, REGULATIONS, OR USAGES OF ANY
TERRITORY OR STATE, WHICH HAVE HERETOFORE ESTABLISHED, MAINTAINED, OR
ENFORCED, OR BY VIRTUE OF WHICH ANY ATTEMPT SHALL HEREAFTER BE MADE TO
ESTABLISH, MAINTAIN, OR ENFORCE, DIRECTLY OR INDIRECTLY, THE VOLUNTARY
OR INVOLUNTARY SERVICE OR LABOR OF ANY PERSONS AS PEONS, IN LIQUIDATION
OF ANY DEBT OR OBLIGATION, OR OTHERWISE, ARE DECLARED NULL AND VOID." 

U.S.C., TITLE 18, SEC. 444, READS:  "WHOEVER HOLDS, ARRESTS, RETURNS,
OR CAUSES TO BE HELD, ARRESTED, OR RETURNED, OR IN ANY MANNER AIDS IN
THE ARREST OR RETURN OF ANY PERSON TO A CONDITION OF PEONAGE, SHALL BE
FINED NOT MORE THAN $5,000, OR IMPRISONED NOT MORE THAN FIVE YEARS, OR
BOTH." 

FN4  GEORGIA CODE (1933), TITLE 38, SECS. 415, 416. 

FN5  AND CF. STATE V. OLIVA, 144 LA. 51, 80 SO. 195; EX PARTE
HOLLMAN, 79 S.C. 9, 60 S.E. 19. 

FN6  SEE NOTE 3, SUPRA. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :









WHITE V. WINCHESTER CLUB, 315 U.S. 32 


NO. 63.  ARGUED DECEMBER 12, 1941.  - DECIDED JANUARY 12, 1942.  - 117
F.2D 146, REVERSED. 


1.  IN THE CASE OF A CLUB TO WHICH AMOUNTS PAID AS "DUES OR MEMBERSHIP
FEES" ARE TAXABLE UNDER SEC. 501 OF THE REVENUE ACT OF 1926, AS AMENDED
BY SEC. 413 OF THE REVENUE ACT OF 1928, PAYMENTS MADE TO IT FOR THE
RIGHT TO REPEATED AND GENERAL USE OF A COMMON CLUB FACILITY FOR AN
APPRECIABLE PERIOD OF TIME, AND NOT FIXED BY EACH OCCASION OF ACTUAL
USE, ARE SUBJECT TO THE TAX.  SO HELD OF CHARGES FOR CERTAIN GOLF AND
FAMILY PRIVILEGES.  P. 41. 

2.  A LONE DISTRICT COURT DECISION CONSTRUING AN ACT OF CONGRESS IS
NOT TO BE REGARDED AS A WELL SETTLED INTERPRETATION; AND SUBSEQUENT
REENACTMENTS OF THE PROVISION SO CONSTRUED ARE NOT NECESSARILY TO BE
TAKEN AS A LEGISLATIVE APPROVAL OF SUCH CONSTRUCTION.  P. 40. 

WHITE ET AL., FORMER COLLECTORS OF INTERNAL REVENUE, V. WINCHESTER
COUNTRY CLUB. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 313 U.S. 555, TO REVIEW THE AFFIRMANCE, UPON A
CONSOLIDATED APPEAL OF JUDGMENTS FOR THE CLUB IN THREE SUITS AGAINST
THREE FORMER COLLECTORS OF INTERNAL REVENUE TO RECOVER TAXES ALLEGED TO
HAVE BEEN WRONGFULLY EXACTED.  THE CLUB SUED AS AGENT FOR THE MEMBERS
WHO PAID THE TAXES.  THE CASES WERE TRIED TO THE DISTRICT COURT UPON
WAIVERS OF A JURY.  OPINION OF DISTRICT COURT, 30 F.SUPP.  192. 

"DUES OR MEMBERSHIP FEES" INCLUDE ONLY THOSE PAYMENTS WHICH ARE
REQUISITE TO MEMBERSHIP IN THE CLUB.  THE PAYMENTS FOR GOLF PRIVILEGES
WERE NOT REQUIRED BY VIRTUE OF MEMBERSHIP.  ON THE CONTRARY, THESE
PRIVILEGES WERE ACQUIRED BY MEMBERS ENTIRELY AT THEIR OPTION.  THEY
COULD BE INFORMALLY OBTAINED AND SURRENDERED AT WILL WITHOUT AFFECTING
ONE'S STATUS AS A MEMBER.  IN NO WAY WERE THEY FIXED AND DEFINITE
CHARGES APPLICABLE TO ALL MEMBERS OF A PARTICULAR CLASS OF MEMBERSHIP,
NOR DID THEY REPRESENT A RECURRING OBLIGATION EXTENDING OVER AN
INDEFINITE PERIOD OF TIME.  SEE FORAN V. MCLAUGHLIN, 59 F.2D 158, 160;
OLD COLONY R. CO. V. COMMISSIONER, 284 U.S. 552, 560; WELD V. NICHOLS,
9 F.2D 977; BALTIMORE COUNTRY CLUB V. UNITED STATES, 7 F.SUPP.  607;
WILLIAMSON V. UNITED STATES, 12 F.SUPP.  26; HARDT V. MCLAUGHLIN, 25
F.SUPP.  684; PHILADELPHIA CRICKET CLUB V. UNITED STATES, 30 F.SUPP. 
141; MERION CRICKET CLUB V. UNITED STATES, 119 F.2D 578. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

WE MUST DECIDE WHETHER MEMBERS' PAYMENTS TO THE WINCHESTER CONTRY
CLUB FOR CERTAIN "PRIVILEGES" CONSTITUTED "DUES OR MEMBERSHIP FEES"
SUBJECT TO THE TAX IMPOSED BY SEC. 501 OF THE REVENUE ACT OF 1926, 44
STAT. 9, 92, AS AMENDED BY SEC. 413 OF THE REVENUE ACT OF 1928, 45
STAT. 791, 864, ON AMOUNTS PAID "AS DUES OR MEMBERSHIP FEES TO ANY
SOCIAL, ATHLETIC, OR SPORTING CLUB OR ORGANIZATION, IF THE DUES OR FEES
OF AN ACTIVE RESIDENT ANNUAL MEMBER ARE IN EXCESS OF $25 PER YEAR." 

SINCE 1929 AND DURING THE PERIOD HERE IN QUESTION THE CLUB'S BY-LAWS
PROVIDED FOR "ANNUAL DUES" OF $50, WHICH ENTITLED A MEMBER TO ALL THE
PRIVILEGES OF THE CLUB EXCEPT GOLF.  BY PAYING $35 MORE, FOR "LIMITED
PRIVILEGES," A MEMBER BECAME ENTITLED TO PLAY GOLF DURING THE YEAR,
EXCEPT ON SPECIFIED DAYS; BY PAYING $50, FOR "FULL PRIVILEGES," HE GOT
THE PRIVILEGE OF PLAYING AT ANY TIME DURING THE YEAR.  ALL BUT A SMALL
PORTION OF THE MEMBERS ACQUIRED GOLF PRIVILEGES OF ONE SORT OR THE
OTHER. 

VARIOUS FORMS OF "FAMILY PRIVILEGES," ENTITLING ONE OR MORE OF A
MEMBER'S FAMILY TO USE THE CLUBHOUSE AND TO PLAY TENNIS AND GOLF, COULD
BE HAD BY A MEMBER UPON PAYMENT OF SPECIFIED ADDITIONAL SUMS, WHICH
WERE LESS IF HE HAD GOLF PRIVILEGES THAN IF HE DID NOT. 

THE CLUB YEAR BEGAN JANUARY FIRST AND, ACCORDING TO THE BY-LAWS,
"DUES AND FEES" WERE PAYABLE ON MARCH FIRST.  THE PRACTICE WAS TO BILL
MEMBERS DURING MARCH FOR "DUES" AND "PRIVILEGES" FOR THE YEAR. 
PRIVILEGES WERE ACQUIRED INFORMALLY, THE PRACTICE BEING TO LET THE
CLUB'S OFFICERS KNOW EITHER ORALLY OR IN WRITING WHAT PRIVILEGES WERE
DESIRED.  A MEMBER WAS BILLED FOR THE PRIVILEGES HE HAD PREVIOUSLY HELD
IF HE HAD NOT INDICATED THAT HE NO LONGER DESIRED THEM, BUT IF HE LATER
GAVE NOTICE THAT HE DID NOT DESIRE A GIVEN PRIVILEGE, NO ATTEMPT WAS
MADE TO COLLECT THE AMOUNT BILLED FOR IT.  IF A MEMBER REQUESTED
PRIVILIGES PRIOR TO AUGUST FIRST, HE WAS BILLED FOR THE FULL YEAR; FOR
PRIVILEGES THEREAFTER REQUESTED HE WAS BILLED FOR ONLY HALF A YEAR. 
SUITABLE ADJUSTMENT WAS ALSO MADE IF PRIVILEGES WERE DROPPED IN THE
MIDDLE OF THE YEAR. 

DURING THE PERIOD FROM NOVEMBER 27, 1931, TO JANUARY 9, 1935, TAXES
IN THE AMOUNT OF $9,211.25 WERE EXACTED ON ACCOUNT OF PAYMENTS TO THE
CLUB FOR THE VARIOUS "PRIVILEGES" MENTIONED ABOVE.  ON NOVEMBER 16,
1935, THE CLUB DULY FILED CLAIMS FOR REFUND ON BEHALF OF ITS MEMBERS,
AND, AFTER THE COMMISSIONER OF INTERNAL REVENUE HAD REJECTED THEM, IT
INSTITUTED SUITS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF MASSACHUSETTS AGAINST THE THREE COLLECTORS OF INTERNAL REVENUE TO
WHOM THE TAXES HAD BEEN PAID.  THE DISTRICT COURT ENTERED JUDGMENTS FOR
THE CLUB, AND THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT
AFFIRMED THEM UPON CONSOLIDATED APPEAL.  117 F.2D 146.  CERTIORARI WAS
GRANTED IN THIS CASE AND IN MERION CRICKET CLUB V. UNITED STATES,
DECIDED BY THE COURT OF APPEALS FOR THE THIRD CIRCUIT, 119 F.2D 578,
BECAUSE OF AN ASSERTED CONFLICT BETWEEN THE TWO DECISIONS.  313 U.S.
555; 314 U.S. 589. 

THE GENERALITY OF "DUES OR MEMBERSHIP FEES," THE WORDS BY WHICH THE
GOVERNING STATUTE DESIGNATES THE PAYMENTS UPON WHICH THE TAX IS LAID,
NECESSITATES CONSIDERATION OF THEIR LEGISLATIVE BACKGROUND.  EARLIER
REVENUE ACTS - THOSE OF 1917, 1918, 1921, AND 1924 - HAD LAID A TAX IN
THE SAME TERMS UPON PAYMENTS TO CLUBS SUCH AS THE RESPONDENT.  FN1 

THE TREASURY CONSTRUED THESE WORDS ON SEVERAL OCCASIONS NOT LONG
AFTER THEY WERE FIRST EMPLOYED IN THESE REVENUE ACTS.  TREASURY
REGULATIONS 43(PART 2), ART. 12, ISSUED UNDER THE REVENUE ACT OF 1918,
AND APPROVED MARCH 28, 1919, GAVE AS EXAMPLES OF THEIR APPLICABILITY
THE FOLLOWING:  "(5)  A CERTAIN GOLF CLUB'S DUES ARE $15 PER YEAR.  OF
THIS AMOUNT $10 IS EXPENDED IN THE PURCHASE FOR THE MEMBER OF A SEASON
TICKET TO A MUNICIPAL GOLF COURSE.  THE WHOLE $15 IS, NEVERTHELESS,
TAXABLE AS DUES.  (6)  A CERTAIN GOLF CLUB CHARGES A 'GREEN' FEE OF $1
FOR EACH GUEST THAT USES THE COURSE.  SUCH A FEE IS NOT PAID 'AS DUES
OR MEMBERSHIP FEES,' AND IS, THEREFORE, NOT TAXABLE AS SUCH.  (7) THE
MEMBERS OF A CERTAIN CURLING CLUB PAY ANNUAL DUES OF $20.  BY THE
PAYMENT OF $10 EXTRA PER YEAR THE PRIVILEGE OF SKATING ON THE CLUB'S
RINK CAN BE SECURED FOR THE MEMBER'S FAMILY.  A PAYMENT OF THIS EXTRA
$10 IS TAXABLE AS A MEMBERSHIP FEE."  THE SAME EXAMPLES ARE GIVEN IN
THIS ARTICLE AS REVISED ON DECEMBER 3, 1920, WITH THE ADDITION OF THE
FOLLOWING EXAMPLE:  "(13)  A CERTAIN GOLF CLUB, THE DUES AND FEES OF
WHICH ARE TAXABLE, ISSUES TO WIVES OF MEMBERS CARDS ENTITLING THEM TO
THE USE OF THE COURSE FOR ONE YEAR, MAKING A CHARGE OF $10 THEREFOR. 
THE AMOUNTS PAID FOR SUCH CARDS ARE TAXABLE." 

THESE EXAMPLES WERE RETAINED IN THREE SUBSEQUENT EDITIONS OF THE
REGULATIONS, ISSUED UNDER THE REVENUE ACTS OF 1921 AND 1924, WHICH ALSO
ADDED THE GENERALIZED STATEMENTS THAT SUBJECT TO THE TAX "ARE EXTRA
CHARGES WHICH ARE IMPOSED UPON MEMBERS FOR THE PRIVILEGE OF USING
CERTAIN ADDITIONAL FACILITIES FOR A PERIOD OF TIME, AS, FOR EXAMPLE, AN
ADDITIONAL CHARGE OF $60 PER ANNUM IMPOSED UPON MEMBERS OF A COUNTRY
CLUB FOR THE PRIVILEGE OF USING THE GOLF LINKS.  A 'GREENS FEE' CHARGED
TO A GUEST IS NOT TAXABLE, UNLESS THE RIGHT OR PRIVILEGE GRANTED IN
RETURN IS FOR A PERIOD OF TIME, SUCH AS A SEASON."  FN2 

FURTHER, ALBEIT SLIGHT, EVIDENCE OF THE TREASURY'S VIEW IS FOUND IN
S.T. 357, CUM. BUL.  I-1, P. 434, AS FOLLOWS:  "WHERE A PAYMENT FOR THE
USE OF GOLF LINKS OR SIMILAR PRIVILEGE AFFORDED BY A CLUB  ...  COVERS
A PERIOD OF TIME, SUCH AS A SEASON, IT IS SUBJECT TO THE TAX ON DUES
...  THIS APPLIES ALIKE TO PAYMENTS MADE BY MEMBERS AND NONMEMBERS." 

ON DECEMBER 30, 1925, THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS HELD, HOWEVER, THAT A CHARGE TO A MEMBER FOR
THE USE OF A CLUB'S GOLF COURSE FOR A PERIOD OF SIX MONTHS WAS NOT
INCLUDED WITHIN THE WORDS "DUES OR MEMBERSHIP FEES," ON THE GROUND THAT
THEY "WERE MEANT TO COVER ONLY FIXED AND DEFINITE CHARGES APPLICABLE TO
ALL MEMBERS OF EACH PARTICULAR CLASS OF MEMBERSHIP."  WELD V. NICHOLS,
9 F.2D 977. 

NO APPEAL FROM THIS DECISION WAS PERFECTED, A BILL OF EXCEPTIONS
BEING WITHDRAWN BY THE GOVERNMENT ON MARCH 23, 1926.  THE REVENUE ACT
OF 1926 WHICH, LIKE ITS PREDECESSORS, CONTAINED THE WORDS "DUES OR
MEMBERSHIP FEES" WITHOUT ANY DEFINITION THEREOF, WAS APPROVED ON
FEBRUARY 26, 1926.  THEREAFTER, AND ON MAY 21, 1926, A REVISION OF THE
REGULATIONS WAS PROMULGATED WHICH OMITTED ALL THE MATTER QUOTED ABOVE
EXCEPT EXAMPLES (5) AND (6).  FN3  THE REVENUE ACT OF 1928, CONTAINING
AN EXPRESS DEFINITION OF "DUES AND MEMBERSHIP FEES" IN A RESPECT NOT
HERE MATERIAL, FN4  WAS ENACTED WHILE THE REGULATION WAS IN THE SAME
FORM,  FN5  AND BEFORE ANY COURT HAD DECIDED ANOTHER CASE LIKE THE WELD
CASE.  SUBSEQUENT EDITIONS OF THE TREASURY REGULATIONS, ISSUED AFTER
THE ENACTMENT OF THE REVENUE ACT OF 1928 AND BEFORE ANY FURTHER
STATUTORY TREATMENT OF THE SUBJECT, RETAINED EXAMPLE (6), BUT
SUBSTITUTED FOR EXAMPLE (5) THE FOLLOWING:  "A CERTAIN GOLF CLUB HAS
TWO CLASSES OF MEMBERS.  CLASS A MEMBERS PAY $40 PER YEAR DUES AND ARE
ENTITLED TO THE FULL PRIVILEGES OF THE CLUB, INCLUDING THE USE OF THE
GOLF COURSE.  CLASS B MEMBERS PAY $25 PER YEAR DUES AND ARE ENTITLED TO
THE PRIVILEGES OF THE CLUBHOUSE, BUT DO NOT ENJOY THE PRIVILEGE OF THE
GOLF COURSE.  THE TOTAL DUES OF $40 PAID BY CLASS A MEMBERS ARE SUBJECT
TO TAX, AND, SINCE THE DUES OF SUCH MEMBERS ARE IN EXCESS OF $25 PER
YEAR, THE DUES OF $25 PAID BY CLASS B MEMBERS ARE ALSO SUBJECT TO THE
TAX."  FN6 

DURING A PERIOD AFTER THE DECISION OF THE WELD CASE, THE TREASURY
APPARENTLY SOUGHT TO DETERMINE TAXABILITY UNDER THE DOCTRINE OF THAT
CASE, RATHER THAN ACCORDING TO ITS OWN PRIOR VIEWS.  IN 1930, AND
BEFORE THE BEGINNING OF THE PERIOD INVOLVED IN THIS CASE, THERE ISSUED,
HOWEVER, A GENERAL COUNSEL'S MEMORANDUM  FN7  WHICH, WHILE PAYING LIP
SERVICE TO THE DOCTRINE OF THE WELD CASE, CONSTRUED AND APPLIED IT IN
SUCH MANNER AS TO REQUIRE THE IMPOSITION OF A TAX ON FACTS APPARENTLY
SUBSTANTIALLY SIMILAR TO THOSE BEFORE US HERE.  THE COMMISSIONER OF
INTERNAL REVENUE HAS CONSISTENTLY FOLLOWED THIS DECISION SINCE ITS
PROMULGATION.  EFFORTS WERE MADE IN CASES SUBSEQUENTLY LITIGATED IN THE
COURTS TO OBTAIN DECISIONS FIXING THE MEANING OF "DEFINITE AND FIXED
CHARGE" AND "PARTICULAR CLASS OF MEMBERSHIP" AS USED IN THE STATEMENT
OF THE WELD DOCTRINE, RESULTING IN HOLDINGS OF TAXABILITY IN THREE
INSTANCES,  FN8  AND OF NONTAXABILITY IN THREE BESIDES THE PRESENT. 
FN9  FORAN V. MCLAUGHLIN, 59 F.2D 158, CERTIORARI DENIED, 287 U.S. 637,
THE FIRST COURT DECISION RENDERED AFTER THE DECISION OF THE WELD CASE
ITSELF, HELD THAT THE PAYMENTS IN QUESTION DID CONSTITUTE DUES OR
MEMBERSHIP FEES.  SINCE THE DECISION OF THIS CASE, THE COMMISSIONER HAS
ALLOWED NO CLAIMS FOR REFUNDS ON THE BASIS OF THE WELD CASE, AS HE HAD
DONE IN SOME PREVIOUS INSTANCES. 

THE FIRST STATUTORY TREATMENT OF THE SUBJECT SINCE THE REVENUE ACT OF
1928, EXPLICITLY DEFINED "DUES," AND THEREBY CLEARLY INCLUDED THE TYPES
OF PAYMENTS HERE IN QUESTION.  FN10  THE LEGISLATIVE HISTORY OF THIS
REDEFINITION IS INCONCLUSIVE IN RESPECT OF THE EARLIER INTENTION OF
CONGRESS.  FN11  THE ACTION OF CONGRESS IN THUS EXPLICITLY DEFINING THE
EXISTING STATUTORY TERM IS AT LEAST AS CONSISTENT WITH DISSATISFACTION
ON ITS PART WITH THE COURSE OF JUDICIAL DECISION AS TO ITS MEANING AS
WITH THE EXISTENCE OF AN INTENTION TO CHANGE THE LAW.  IF ANY INFERENCE
IS TO BE DRAWN FROM THIS SPELLING OUT OF THE MEANING OF "DUES," IT IS
ONE SUPPORTING THE VALIDITY OF THE CONSTRUCTION SET FORTH AND ADHERED
TO BY THE TREASURY BEFORE THE WELD CASE, WHICH WAS SUBSTANTIALLY
ADOPTED BY THE NEWLY ENACTED DEFINITION.  COMPARE MASON V. ROUTZAHN,
275 U.S. 175, 178. 

NOR DO WE FIND THE REENACTMENTS OF THE WORDS "FEES OR MEMBERSHIP
DUES," WHILE THE WELD CASE WAS ON THE BOOKS, TO BE CONTROLLING, OR EVEN
SIGNIFICANT, AS EXPRESSIONS OF CONGRESSIONAL INTENT.  PASSAGE OF THE
REVENUE ACT OF 1926 SO SOON AFTER THE DECISION OF THE WELD CASE, AND
WHILE THE TREASURY REGULATION DEALING IN TERMS WITH THE SAME PROBLEM
WAS STILL IN FORCE ON THE BOOKS, OF COURSE AVAILS THE RESPONDENT
NOTHING. 

SO FAR AS WE HAVE BEEN ABLE TO ASCERTAIN, THE TREASURY'S REVISION OF
THE REGULATION WAS MADE IN THE BELIEF THAT IT WAS BOUND TO FOLLOW THE
WELD CASE; WE CANNOT ASSUME THAT THE TREASURY DID MORE THAN BOW TO THE
DISTRICT COURT.  THE REVISION OF THE REGULATION IS OF AMBIGUOUS IMPORT,
BUT IN ANY EVENT IT SIGNIFIES NO VOLUNTARY CHANGE IN THE OPINION OF THE
TREASURY AS TO THE MEANING OF THE STATUTE.  EVEN IF WE COULD ASSUME
THAT THE TREASURY MADE A COMPLETE AND VOLUNTARY ABOUT FACE AFTER THE
DECISION OF THE WELD CASE AND BEFORE THE ENACTMENT OF THE 1928 ACT, AND
THAT THE NEW DOCTRINE CAME WITHIN THE SCOPE OF THE CASES APPLYING THE
"REENACTMENT RULE,"  FN12  THIS WOULD BE BOOTLESS TO THE PETITIONER,
WHOSE CLAIM COVERS A PERIOD COMMENCING AFTER THE 1930 DECISION OF THE
GENERAL COUNSEL OF THE BUREAU OF INTERNAL REVENUE, SUPRA, WHICH FAVORS
THE IMPOSITION OF THE TAX HERE.  IF THIS DECISION MARKED A DEPARTURE
FROM DOCTRINE ESPOUSED BY THE TREASURY AFTER THE WELD CASE, IT WAS A
DEPARTURE WHICH WAS WITHIN THE POWER OF THE TREASURY TO MAKE FOR THE
PERIOD IN QUESTION.  FN13 

NOR WAS THE WELD CASE ITSELF IN ANY SENSE ADOPTED BY THE ENACTMENT OF
THE 1928 ACT.  IT STOOD ALONE WHEN THAT ACT WAS PASSED, AND "ONE
DECISION CONSTRUING AN ACT DOES NOT APPROACH THE DIGNITY OF A WELL
SETTLED INTERPRETATION."  FN14  IT WAS PATENTLY INCOMPLETE AS AN
EXPOSITION OF DOCTRINE, AND AS A DISTRICT COURT DECISION IT HAD QUITE
RESTRICTED DIRECT APPLICABILITY.    HAVING TESTED RESPONDENT'S
PROFFERED CONSTRUCTIONAL CRUTCHES AND FOUND THEM UNSOUND, WE MUST
DECIDE THE MEANING OF THE STATUTE WITHOUT THEIR AID.  WE REJECT THE
DOCTRINE OF THE WELD CASE AS BEING INTRINSICALLY UNSOUND, AND AS HAVING
BEEN DEMONSTRATED BY SUBSEQUENT CASES TO BE UNWORKABLE IN PRACTICE.  WE
ALSO REJECT AS AN AID TO DECISION THE INQUIRY MADE IN SEVERAL CASES AS
TO WHETHER THE PAYMENT IN QUESTION WAS IN CONSEQUENCE OF A "RECURRING
CONTRACTUAL OBLIGATION,"  FN15  SINCE WHETHER SUCH IS THE CASE DEPENDS
MERELY UPON THE MECHANICS OF THE PARTICULAR CLUB'S FINANCES - A
PROPERLY IMMATERIAL FACTOR.    CONSIDERATION OF THE NATURE OF CLUB
ACTIVITY IS A NECESSARY PRELIMINARY TO THE FORMULATION OF A TEST OF
WHAT CONSTITUTES A "DUE OR MEMBERSHIP FEE."  SO FAR AS FINANCES GO, THE
FUNDAMENTAL NOTION OF CLUB ACTIVITY IS THAT OPERATING EXPENSES ARE
SHARED WITHOUT INSISTENCE UPON EQUIVALENCE BETWEEN THE PROPORTION OF AN
INDIVIDUAL'S CONTRIBUTIONS AND THE PROPORTION OF THE BENEFITS HE
RECEIVES.  FN16  THUS, ON THE ONE HAND, PAYMENT OF THE PRICE OF AN
INDIVIDUAL DINNER AT THE CLUB DINING ROOM OR OF A SINGLE ROUND OF GOLF
LACKS THE ELEMENT OF MAKING COMMON CAUSE INHERENT IN THE IDEA OF CLUB
ACTIVITY.  BUT, ON THE OTHER HAND, PAYMENT FOR THE RIGHT TO REPEATED
AND GENERAL USE OF A COMMON CLUB FACILITY FOR AN APPRECIABLE PERIOD OF
TIME HAS THAT ELEMENT AND AMOUNTS TO A "DUE OR MEMBERSHIP FEE" IF THE
PAYMENT IS NOT FIXED BY EACH OCCASION OF ACTUAL USE.  SUCH WAS THE CASE
HERE, AND WE THEREFORE HOLD THAT THE PAYMENTS IN QUESTION WERE SUBJECT
TO THE TAX. 

THESE ARE, IN SUBSTANCE, THE VIEWS EXPRESSED BY THE TREASURY SHORTLY
AFTER "DUES OR MEMBERSHIP FEES" WAS FIRST EMPLOYED IN THE REVENUE ACTS,
AND CONSISTENTLY PRESSED BY THE TREASURY, EXCEPT AS IT THOUGHT JUDICIAL
AUTHORITY DICTATED OTHERWISE.  ITS SUBSTANTIALLY CONTEMPORANEOUS
EXPRESSIONS OF OPINION ARE HIGHLY RELEVANT AND MATERIAL EVIDENCE OF THE
PROBABLE GENERAL UNDERSTANDING OF THE TIMES AND OF THE OPINIONS OF MEN
WHO PROBABLY WERE ACTIVE IN THE DRAFTING OF THE STATUTE.  AS SUCH, THEY
ARE ENTITLED TO SERIOUS CONSIDERATION, INDEPENDENTLY ALIKE OF
REENACTMENTS OF THE STATUTE WHILE IT WAS IN FORCE ON THE BOOKS AND OF
ANY TEMPORARY ABANDONMENT IN CONSEQUENCE OF DISREGARD BY JUDICIAL
DECISION.  FN17  REVERSED. 

FN1  SEC. 701 OF THE REVENUE ACT OF 1917, 40 STAT. 300, 319; SEC. 801
OF THE REVENUE ACT OF 1918, 40 STAT. 1057, 1121; SEC. 801 OF THE
REVENUE ACT OF 1921, 42 STAT. 227, 291; SEC. 501 OF THE REVENUE ACT OF
1924, 43 STAT. 253, 321. 

FN2  TREASURY REGULATIONS 43(PART 2), ART. 9, AS ISSUED JANUARY 11,
1922 UNDER THE REVENUE ACT OF 1921, AND AS REVISED APRIL 18, 1922;
TREASURY REGULATIONS 43(PART 2), ART. 9, UNDER THE REVENUE ACT OF
1924. 

FN3  TREASURY REGULATIONS 43(PART 2), ART. 9, UNDER THE REVENUE ACT
OF 1926. 

FN4  SECTION 413 OF THE REVENUE ACT OF 1928, 45 STAT. 791, 864,
PROVIDED: 

"(D)  AS USED IN THIS SECTION, THE TERM 'DUES' INCLUDES ANY ASSESSMENT
IRRESPECTIVE OF THE PURPOSE FOR WHICH MADE; AND THE TERM 'INITIATION
FEES', INCLUDES ANY PAYMENT, CONTRIBUTION, OR LOAN REQUIRED AS A
CONDITION PRECEDENT TO MEMBERSHIP, WHETHER OR NOT ANY SUCH PAYMENT,
CONTRIBUTION, OR LOAN IS EVIDENCED BY A CERTIFICATE OF INTEREST OR
INDEBTEDNESS OR SHARE OF STOCK, AND IRRESPECTIVE OF THE PERSON OR
ORGANIZATION TO WHOM PAID, CONTRIBUTED, OR LOANED." 

FN5  TREASURY REGULATIONS 43(PART 2), ART. 9, UNDER THE REVENUE ACT
OF 1926, AS REVISED MAY 27, 1927. 

FN6  TREASURY REGULATIONS 43, ART. 40(1928 AND 1932 REV.); TREASURY
REGULATIONS 43, SEC. 101.41(1940 ED.). 

FN7  G.C.M. 7505, CUM. BUL.  IX-2, P. 414. 

FN8  FORAN V. MCLAUGHLIN, 59 F.2D 158, CERTIORARI DENIED, 287 U.S.
637; MERION CRICKET CLUB V. UNITED STATES, SUPRA; HARDT V. MCLAUGHLIN,
25 F.SUPP.  684. 

FN9  BALTIMORE COUNTRY CLUB V. UNITED STATES, 7 F.SUPP.  607;
WILLIAMSON V. UNITED STATES, 12 F.SUPP.  26; PHILADELPHIA CRICKET CLUB
V. UNITED STATES, 30 F.SUPP.  141. 

FN10  "THE TERM 'DUES' INCLUDES ANY ASSESSMENT, IRRESPECTIVE OF THE
PURPOSE FOR WHICH MADE, AND ANY CHARGES FOR SOCIAL PRIVILEGES OR
FACILITIES, OR FOR GOLF, TENNIS, POLO, SWIMMING, OR OTHER ATHLETIC OR
SPORTING PRIVILEGES OR FACILITIES, FOR ANY PERIOD OF MORE THAN SIX DAYS
..." 

FN11  SEE SEN. REPT. 673, 77TH CONG., 1ST SESS., P. 48; H.R. REPT.
1040, 77TH CONG., 1ST SESS., PP. 31-32, 54; STATEMENT BY THE CHAIRMAN
OF THE HOUSE WAYS AND MEANS COMMITTEE, 87 CONG. REC. 7614. 

FN12  BUT COMPARE UNITED STATES V. MISSOURI PACIFIC R. CO., 278 U.S.
269, 280; BURNET V. CHICAGO PORTRAIT CO., 285 U.S. 1, 16. 

FN13  MORRISSEY V. COMMISSIONER, 296 U.S. 344; HELVERING V. WILSHIRE
OIL CO., 308 U.S. 90; HELVERING V. REYNOLDS, 313 U.S. 428. 

FN14  UNITED STATES V. RAYNOR, 302 U.S. 540, 552; CF. FEDERAL
COMMUNICATIONS COMMISSION V. BROADCASTING SYSTEM, 311 U.S. 132;
HELVERING V. REYNOLDS, SUPRA. 

FN15  FORAN V. MCLAUGHLIN, SUPRA; HARDT V. MCLAUGHLIN, SUPRA;
PHILADELPHIA CRICKET CLUB V. UNITED STATES, SUPRA. 

FN16  SEE MERION CRICKET CLUB V. UNITED STATES, 119 F.2D 578-580. 

FN17  COMPARE GRISWOLD, A SUMMARY OF THE REGULATIONS PROBLEM, 54
HARVARD LAW REVIEW 398. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :
















MERION CLUB V. UNITED STATES, 315 U.S. 42 


NO. 83.  ARGUED DECEMBER 12, 1941.  - DECIDED JANUARY 12, 1942.  - 119
F.2D 578, AFFIRMED. 


PAYMENTS TO A CLUB BY MEMBERS FOR GOLF PRIVILEGES, HELD TAXABLE AS
"DUES OR MEMBERSHIP FEES" UNDER SEC. 501 OF THE REVENUE ACT OF 1926, AS
AMENDED BY SEC. 413 OF THE REVENUE ACT OF 1928.  WHITE V. WINCHESTER
COUNTRY CLUB, ANTE, P. 32.  P. 43. 

MERION CRICKET CLUB V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 314 U.S. 589, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE UNITED STATES IN A SUIT FOR A REFUND OF TAXES. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IN THIS CASE - WHETHER AMOUNTS PAID BY MEMBERS OF THE
MERION CRICKET CLUB DURING THE PERIOD FROM JULY 1, 1931, TO JUNE 30,
1935, FOR GOLF PRIVILEGES, CONSTITUTED PAYMENTS AS "DUES OR MEMBERSHIP
FEES" SUBJECT TO THE TAX IMPOSED BY SEC. 501 OF THE REVENUE ACT OF
1926, 44 STAT. 9, 92, AS AMENDED BY SEC. 413 OF THE REVENUE ACT OF
1928, 45 STAT. 791, 864 - DOES NOT DIFFER IN SUBSTANCE FROM THAT
DECIDED THIS DAY IN WHITE V. WINCHESTER COUNTRY CLUB, ANTE, P. 32. 

WITH CERTAIN EXCEPTIONS, A MEMBER OF THE MERION CRICKET CLUB COULD
OBTAIN ANNUAL GOLF PRIVILEGES ONLY BY PAYMENT OF A FEE, WHICH VARIED IN
AMOUNT ACCORDING TO HIS AGE AND STATUS.  THE FEE WAS PAYABLE IN TWO
EQUAL INSTALLMENTS, ONE ON THE FIRST OF JANUARY, AND THE OTHER ON THE
FIRST OF JULY.  A MEMBER ADMITTED TO GOLF PRIVILEGES AFTER THE LATTER
DATE WAS ENTITLED TO REMISSION OF ONE-HALF OF THE ANNUAL FEES, BUT IF
ONE STOPPED USING THE GOLF FACILITIES DURING THE YEAR THERE WAS NO
PROPORTIONATE REFUND.  IF A MEMBER ELECTED TO PLAY GOLF HE CONTINUED TO
BE LIABLE FOR THE SUCCEEDING YEAR UNLESS HE GAVE NOTICE OF WITHDRAWAL
BEFORE THE END OF THE YEAR.  MEMBERS WHO PAID THE ANNUAL GOLF FEES WERE
ENTITLED TO USE THE GOLF FACILITIES AS OFTEN AS THEY DESIRED WITHOUT
FURTHER CHARGE, AND COULD ON OCCASION OBTAIN GOLF PRIVILEGES FOR THEIR
WIVES AND GUESTS. 

AFTER A CLAIM FOR REFUND OF THE AMOUNTS ALLEGED TO HAVE BEEN PAID AS
TAXES ON THE ANNUAL GOLF FEES HAD BEEN DULY FILED AND REJECTED, THE
CLUB ON ITS OWN BEHALF AND ON BEHALF OF ITS MEMBERS SUED THE UNITED
STATES IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA TO RECOVER THEM.  THE DISTRICT COURT ENTERED A JUDGMENT
FOR THE UNITED STATES WHICH WAS AFFIRMED ON APPEAL TO THE CIRCUIT COURT
OF APPEALS FOR THE THIRD CIRCUIT.  119 F.2D 578.  CERTIORARI WAS
GRANTED IN THIS CASE AND IN WHITE V. WINCHESTER COUNTRY CLUB, ANTE, P.
32, BECAUSE OF AN ASSERTED CONFLICT BETWEEN THE DECISIONS BELOW.  313
U.S. 555; 314 U.S. 589. 

IN THIS CASE, AS IN WHITE V. WINCHESTER COUNTRY CLUB, SUPRA, WE HOLD
THAT AMOUNTS PAID WERE PAID AS "DUES OR MEMBERSHIP FEES," SINCE THEY
WERE FOR RIGHTS TO THE REPEATED AND GENERAL USE OF A COMMON CLUB
FACILITY FOR AN APPRECIABLE PERIOD OF TIME, AND WERE NOT FIXED BY EACH
OCCASION OF ACTUAL USE. 

THE DECISION BELOW IS THEREFORE AFFIRMED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :












MORTON SALT CO. V. SUPPIGER CO., 314 U.S. 488 


NO. 49.  ARGUED DECEMBER 10, 1941.  - DECIDED JANUARY 5, 1942.  - 117
F.2D 968, REVERSED. 


1.  A CORPORATION, ENGAGED THROUGH A WHOLLY-OWNED SUBSIDIARY IN THE
BUSINESS OF SELLING SALT TABLETS TO THE CANNING TRADE, AND WHICH ALSO
OWNED A PATENT ON A MACHINE FOR DEPOSITING SUCH TABLETS IN THE PROCESS
OF CANNING, MADE A PRACTICE OF LICENSING CANNERS TO USE ITS MACHINES,
BUT ONLY UPON CONDITION THAT THE TABLETS USED WITH THEM BE BOUGHT FROM
THE SUBSIDIARY.  HELD: 

(1)  THAT THIS USE OF THE PATENT MONOPOLY TO RESTRAIN COMPETITION IN
THE MARKETING OF THE UNPATENTED TABLETS FOR USE WITH THE PATENTED
MACHINES, AND TO AID IN THE CREATION OF A LIMITED MONOPOLY IN THE
TABLETS NOT WITHIN THAT GRANTED BY THE PATENT, IS CONTRARY TO THE
PUBLIC POLICY OF THE UNITED STATES EVINCED BY THE CONSTITUTION AND THE
PATENT LAW.  P. 491. 

(2)  THE PATENTEE WHILE ENGAGED IN SUCH PRACTICE CAN NOT HAVE AN
INJUNCTION TO RESTRAIN THE MAKING AND LEASING OF INFRINGING MACHINES. 
P. 492. 

2.  IT IS A PRINCIPLE OF GENERAL APPLICATION THAT COURTS, AND
ESPECIALLY COURTS OF EQUITY, MAY APPROPRIATELY WITHHOLD THEIR AID WHERE
THE PLAINTIFF IS USING THE RIGHT ASSERTED CONTRARY TO THE PUBLIC
INTEREST.  P. 492. 

MORTON SALT CO. V. G.S. SUPPIGER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 313 U.S. 555, TO REVIEW THE REVERSAL OF A DECREE, 31
F.SUPP.  876, DISMISSING A BILL TO ENJOIN ALLEGED INFRINGEMENTS OF A
PATENT, AND FOR AN ACCOUNTING. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BROUGHT THIS SUIT IN THE DISTRICT COURT FOR AN INJUNCTION
AND AN ACCOUNTING FOR INFRINGEMENT OF ITS PATENT NO. 2,060,645, OF
NOVEMBER 10, 1936, ON A MACHINE FOR DEPOSITING SALT TABLETS, A DEVICE
SAID TO BE USEFUL IN THE CANNING INDUSTRY FOR ADDING PREDETERMINED
AMOUNTS OF SALT IN TABLET FORM TO THE CONTENTS OF THE CANS. 

UPON PETITIONER'S MOTION, PURSUANT TO RULE 56 OF THE RULES OF CIVIL
PROCEDURE, THE TRIAL COURT, WITHOUT PASSING ON THE ISSUES OF VALIDITY
AND INFRINGEMENT, GRANTED SUMMARY JUDGMENT DISMISSING THE COMPLAINT. 
IT TOOK THE GROUND THAT RESPONDENT WAS MAKING USE OF THE PATENT TO
RESTRAIN THE SALE OF SALT TABLETS IN COMPETITION WITH ITS OWN SALE OF
UNPATENTED TABLETS, BY REQUIRING LICENSEES TO USE WITH THE PATENTED
MACHINES ONLY TABLETS SOLD BY RESPONDENT.  THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT REVERSED, 117 F.2D 968, BECAUSE IT THOUGHT THAT
RESPONDENT'S USE OF THE PATENT WAS NOT SHOWN TO VIOLATE SEC. 3 OF THE
CLAYTON ACT, 15 U.S.C. SEC. 14, AS IT DID NOT APPEAR THAT THE USE OF
ITS PATENT SUBSTANTIALLY LESSENED COMPETITION OR TENDED TO CREATE A
MONOPOLY IN SALT TABLETS.  WE GRANTED CERTIORARI, 313 U.S. 555, BECAUSE
OF THE PUBLIC IMPORTANCE OF THE QUESTION PRESENTED AND OF AN ALLEGED
CONFLICT OF THE DECISION BELOW WITH B. B. CHEMICAL CO. V. ELLIS, 117
F.2D 829, AND WITH THE PRINCIPLES UNDERLYING THE DECISIONS IN CARBICE
CORP. V. AMERICAN PATENTS CORP., 283 U.S. 27, AND LEITCH MFG. CO. V.
BARBER CO., 302 U.S. 458. 

THE CLAYTON ACT AUTHORIZES THOSE INJURED BY VIOLATIONS TENDING TO
MONOPOLY TO MAINTAIN SUIT FOR TREBLE DAMAGES AND FOR AN INJUNCTION IN
APPROPRIATE CASES.  15 U.S.C. SECS. 1,2,14,15,26.  BUT THE PRESENT SUIT
IS FOR INFRINGEMENT OF A PATENT.  THE QUESTION WE MUST DECIDE IS NOT
NECESSARILY WHETHER RESPONDENT HAS VIOLATED THE CLAYTON ACT, BUT
WHETHER A COURT OF EQUITY WILL LEND ITS AID TO PROTECT THE PATENT
MONOPOLY WHEN RESPONDENT IS USING IT AS THE EFFECTIVE MEANS OF
RESTRAINING COMPETITION WITH ITS SALE OF AN UNPATENTED ARTICLE. 

BOTH RESPONDENT'S WHOLLY OWNED SUBSIDIARY AND THE PETITIONER
MANUFACTURE AND SELL SALT TABLETS USED AND USEFUL IN THE CANNING
TRADE.  THE TABLETS HAVE A PARTICULAR CONFIGURATION RENDERING THEM
CAPABLE OF CONVENIENT USE IN RESPONDENT'S PATENTED MACHINES. 
PETITIONER MAKES AND LEASES TO CANNERS UNPATENTED SALT DEPOSITING
MACHINES, CHARGED TO INFRINGE RESPONDENT'S PATENT.  FOR REASONS WE
INDICATE LATER, NOTHING TURNS ON THE FACT THAT PETITIONER ALSO COMPETES
WITH RESPONDENT IN THE SALE OF THE TABLETS, AND WE MAY ASSUME FOR
PURPOSES OF THIS CASE THAT PETITIONER IS DOING NO MORE THAN MAKING AND
LEASING THE ALLEGED INFRINGING MACHINES.  THE PRINCIPAL BUSINESS OF
RESPONDENT'S SUBSIDIARY, FROM WHICH ITS PROFITS ARE DERIVED, IS THE
SALE OF SALT TABLETS.  IN CONNECTION WITH THIS BUSINESS, AND AS AN
ADJUNCT TO IT, RESPONDENT LEASES ITS PATENTED MACHINES TO COMMERCIAL
CANNERS, SOME TWO HUNDRED IN ALL, UNDER LICENSES TO USE THE MACHINES
UPON CONDITION AND WITH THE AGREEMENT OF THE LICENSEES THAT ONLY THE
SUBSIDIARY'S SALT TABLETS BE USED WITH THE LEASED MACHINES. 

IT THUS APPEARS THAT RESPONDENT IS MAKING USE OF ITS PATENT MONOPOLY
TO RESTRAIN COMPETITION IN THE MARKETING OF UNPATENTED ARTICLES, SALT
TABLETS, FOR USE WITH THE PATENTED MACHINES, AND IS AIDING IN THE
CREATION OF A LIMITED MONOPOLY IN THE TABLETS NOT WITHIN THAT GRANTED
BY THE PATENT.  A PATENT OPERATES TO CREATE AND GRANT TO THE PATENTEE
AN EXCLUSIVE RIGHT TO MAKE, USE AND VEND THE PARTICULAR DEVICE
DESCRIBED AND CLAIMED IN THE PATENT.  BUT A PATENT AFFORDS NO IMMUNITY
FOR A MONOPOLY NOT WITHIN THE GRANT, INTERSTATE CIRCUIT V. UNITED
STATES, 306 U.S. 208, 228, 230; ETHYL GASOLINE CORP. V. UNITED STATES,
309 U.S. 436, 456, AND THE USE OF IT TO SUPPRESS COMPETITION IN THE
SALE OF AN UNPATENTED ARTICLE MAY DEPRIVE THE PATENTEE OF THE AID OF A
COURT OF EQUITY TO RESTRAIN AN ALLEGED INFRINGEMENT BY ONE WHO IS A
COMPETITOR.  IT IS THE ESTABLISHED RULE THAT A PATENTEE WHO HAS GRANTED
A LICENSE ON CONDITION THAT THE PATENTED INVENTION BE USED BY THE
LICENSEE ONLY WITH UNPATENTED MATERIALS FURNISHED BY THE LICENSOR, MAY
NOT RESTRAIN AS A CONTRIBUTORY INFRINGER ONE WHO SELLS TO THE LICENSEE
LIKE MATERIALS FOR LIKE USE.  MOTION PICTURE PATENTS CO. V. UNIVERSAL
FILM MFG. CO., 243 U.S. 502, 510; CARBICE CORP. V. AMERICAN PATENTS
CORP., SUPRA; LEITCH MFG. CO. V. BARBER CO., SUPRA; CF. UNITED SHOE
MACHINERY CO. V. UNITED STATES, 258 U.S. 451, 642; INTERNATIONAL
BUSINESS MACHINES CORP. V. UNITED STATES, 298 U.S. 131, 140.  THE GRANT
TO THE INVENTOR OF THE SPECIAL PRIVILEGE OF A PATENT MONOPOLY CARRIES
OUT A PUBLIC POLICY ADOPTED BY THE CONSTITUTION AND LAWS OF THE UNITED
STATES, "TO PROMOTE THE PROGRESS OF SCIENCE AND USEFUL ARTS, BY
SECURING FOR LIMITED TIMES TO  ...  INVENTORS THE EXCLUSIVE RIGHT ...
" TO THEIR "NEW AND USEFUL" INVENTIONS.  UNITED STATES CONSTITUTION,
ART. I, SEC. 8, CL. 8; 35 U.S.C. SEC. 31.  BUT THE PUBLIC POLICY WHICH
INCLUDES INVENTIONS WITHIN THE GRANTED MONOPOLY EXCLUDES FROM IT ALL
THAT IS NOT EMBRACED IN THE INVENTION.  IT EQUALLY FORBIDS THE USE OF
THE PATENT TO SECURE AN EXCLUSIVE RIGHT OR LIMITED MONOPOLY NOT GRANTED
BY THE PATENT OFFICE AND WHICH IT IS CONTRARY TO PUBLIC POLICY TO
GRANT. 

IT IS A PRINCIPLE OF GENERAL APPLICATION THAT COURTS, AND ESPECIALLY
COURTS OF EQUITY, MAY APPROPRIATELY WITHHOLD THEIR AID WHERE THE
PLAINTIFF IS USING THE RIGHT ASSERTED CONTRARY TO THE PUBLIC INTEREST. 
VIRGINIAN RY. CO. V. FEDERATION, 300 U.S. 515, 552; CENTRAL KENTUCKY
CO. V. RAILROAD COMMISSION, 290 U.S. 264, 270-73; HARRISONVILLE V.
DICKEY CLAY CO., 289 U.S. 334, 337-38; BEASLEY V. TEXAS & PACIFIC RY.
CO., 191 U.S. 492, 497; SECURITIES & EXCHANGE COMM'N V. U.S. REALTY
CO., 310 U.S. 434, 455; UNITED STATES V. MORGAN, 307 U.S. 183, 194. 
RESPONDENT ARGUES THAT THIS DOCTRINE IS LIMITED IN ITS APPLICATION TO
THOSE CASES WHERE THE PATENTEE SEEKS TO RESTRAIN CONTRIBUTORY
INFRINGEMENT BY THE SALE TO LICENSEES OF A COMPETING UNPATENTED
ARTICLE, WHILE HERE RESPONDENT SEEKS TO RESTRAIN PETITIONER FROM A
DIRECT INFRINGEMENT, THE MANUFACTURE AND SALE OF THE SALT TABLET
DEPOSITOR.  IT IS SAID THAT THE EQUITABLE MAXIM THAT A PARTY SEEKING
THE AID OF A COURT OF EQUITY MUST COME INTO COURT WITH CLEAN HANDS
APPLIES ONLY TO THE PLAINTIFF'S WRONGFUL CONDUCT IN THE PARTICULAR ACT
OR TRANSACTION WHICH RAISES THE EQUITY, ENFORCEMENT OF WHICH IS SOUGHT;
THAT WHERE, AS HERE, THE PATENTEE SEEKS TO RESTRAIN THE MANUFACTURE OR
USE OF THE PATENTED DEVICE, HIS CONDUCT IN USING THE PATENT TO RESTRICT
COMPETITION IN THE SALE OF SALT TABLETS DOES NOT FORECLOSE HIM FROM
SEEKING RELIEF LIMITED TO AN INJUNCTION AGAINST THE MANUFACTURE AND
SALE OF THE INFRINGING MACHINE ALONE. 

UNDOUBTEDLY "EQUITY DOES NOT DEMAND THAT ITS SUITORS SHALL HAVE LED
BLAMELESS LIVES," LOUGHRAN V. LOUGHRAN, 292 U.S. 216, 229; CF. KEYSTONE
DRILLER CO. V. EXCAVATOR CO., 290 U.S. 240, 241-45, BUT ADDITIONAL
CONSIDERATIONS MUST BE TAKEN INTO ACCOUNT WHERE MAINTENANCE OF THE SUIT
CONCERNS THE PUBLIC INTEREST AS WELL AS THE PRIVATE INTERESTS OF
SUITORS.  WHERE THE PATENT IS USED AS A MEANS OF RESTRAINING
COMPETITION WITH THE PATENTEE'S SALE OF AN UNPATENTED PRODUCT, THE
SUCCESSFUL PROSECUTION OF AN INFRINGEMENT SUIT EVEN AGAINST ONE WHO IS
NOT A COMPETITOR IN SUCH SALE IS A POWERFUL AID TO THE MAINTENANCE OF
THE ATTEMPTED MONOPOLY OF THE UNPATENTED ARTICLE, AND IS THUS A
CONTRIBUTING FACTOR IN THWARTING THE PUBLIC POLICY UNDERLYING THE GRANT
OF THE PATENT.  MAINTENANCE AND ENLARGEMENT OF THE ATTEMPTED MONOPOLY
OF THE UNPATENTED ARTICLE ARE DEPENDENT TO SOME EXTENT UPON PERSUADING
THE PUBLIC OF THE VALIDITY OF THE PATENT, WHICH THE INFRINGEMENT SUIT
IS INTENDED TO ESTABLISH.  EQUITY MAY RIGHTLY WITHHOLD ITS ASSISTANCE
FROM SUCH A USE OF THE PATENT BY DECLINING TO ENTERTAIN A SUIT FOR
INFRINGEMENT, AND SHOULD DO SO AT LEAST UNTIL IT IS MADE TO APPEAR THAT
THE IMPROPER PRACTICE HAS BEEN ABANDONED AND THAT THE CONSEQUENCES OF
THE MISUSE OF THE PATENT HAVE BEEN DISSIPATED.  CF. B. B. CHEMICAL CO.
V. ELLIS, POST, P. 495. 

THE REASONS FOR BARRING THE PROSECUTION OF SUCH A SUIT AGAINST ONE
WHO IS NOT A COMPETITOR WITH THE PATENTEE IN THE SALE OF THE UNPATENTED
PRODUCT ARE FUNDAMENTALLY THE SAME AS THOSE WHICH PRECLUDE AN
INFRINGEMENT SUIT AGAINST A LICENSEE WHO HAS VIOLATED A CONDITION OF
THE LICENSE BY USING WITH THE LICENSED MACHINE A COMPETING UNPATENTED
ARTICLE, MOTION PICTURE PATENTS CO. V. UNIVERSAL FILM MFG. CO., SUPRA,
OR AGAINST A VENDEE OF A PATENTED OR COPYRIGHTED ARTICLE FOR VIOLATION
OF A CONDITION FOR THE MAINTENANCE OF RESALE PRICES, ADAMS V. BURKE, 17
WALL.  453; BOBBS-MERRILL CO. V. STRAUS, 210 U.S. 339; BAUER & CIE V.
O'DONNELL, 229 U.S. 1; STRAUS V. VICTOR TALKING MACHINE CO., 243 U.S.
490; BOSTON STORE V. AMERICAN GRAPHOPHONE CO., 246 U.S. 8; CF. UNITED
STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, 485.  IT IS THE ADVERSE
EFFECT UPON THE PUBLIC INTEREST OF A SUCCESSFUL INFRINGEMENT SUIT, IN
CONJUNCTION WITH THE PATENTEE'S COURSE OF CONDUCT, WHICH DISQUALIFIES
HIM TO MAINTAIN THE SUIT, REGARDLESS OF WHETHER THE PARTICULAR
DEFENDANT HAS SUFFERED FROM THE MISUSE OF THE PATENT.  SIMILARLY EQUITY
WILL DENY RELIEF FOR INFRINGEMENT OF A TRADEMARK WHERE THE PLAINTIFF IS
MISREPRESENTING TO THE PUBLIC THE NATURE OF HIS PRODUCT EITHER BY THE
TRADEMARK ITSELF OR BY HIS LABEL.  MANHATTAN MEDICINE CO. V. WOOD, 108
U.S. 218; WORDEN V. CALIFORNIA FIG SYRUP CO., 187 U.S. 516; LEATHER
CLOTH CO. V. AMERICAN LEATHER CLOTH CO., 11 H.L. 522, 541-45; SEE ALSO,
FOR APPLICATION OF THE LIKE DOCTRINE IN THE CASE OF COPYRIGHT, EDWARD
THOMPSON CO. V. AMERICAN LAW BOOK CO., 122 F. 922, 926; STONE &
M'CARRICK V. DUGAN PIANO CO., 220 F. 837, 841-43.  THE PATENTEE, LIKE
THESE OTHER HOLDERS OF AN EXCLUSIVE PRIVILEGE GRANTED IN THE
FURTHERANCE OF A PUBLIC POLICY, MAY NOT CLAIM PROTECTION OF HIS GRANT
BY THE COURTS WHERE IT IS BEING USED TO SUBVERT THAT POLICY. 

IT IS UNNECESSARY TO DECIDE WHETHER RESPONDENT HAS VIOLATED THE
CLAYTON ACT, FOR WE CONCLUDE THAT IN ANY EVENT THE MAINTENANCE OF THE
PRESENT SUIT TO RESTRAIN PETITIONER'S MANUFACTURE OR SALE OF THE
ALLEGED INFRINGING MACHINES IS CONTRARY TO PUBLIC POLICY AND THAT THE
DISTRICT COURT RIGHTLY DISMISSED THE COMPLAINT FOR WANT OF EQUITY. 
REVERSED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :




B.B. CHEMICAL CO. V. ELLIS, 314 U.S. 495 


NO. 75.  ARGUED DECEMBER 10, 1941.  - DECIDED JANUARY 5, 1942.  - 117
F.2D 829, AFFIRMED. 


THE OWNER OF A METHOD PATENT WHO AUTHORIZES MANUFACTURERS TO USE IT
ONLY WITH MATERIALS FURNISHED BY HIM MAY NOT ENJOIN INFRINGEMENT BY ONE
WHO SUPPLIES THE MANUFACTURER WITH MATERIALS FOR USE BY THE PATENTED
METHOD AND AIDS IN SUCH USE.  MORTON SALT CO. V. G. S. SUPPIGER CO.,
ANTE, P. 488.  P. 497. 

B. B. CHEMICAL CO. V. ELLIS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 313 U.S. 558, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
DISTRICT COURT, 32 F.SUPP.  690, WHICH DISMISSED THE BILL IN A SUIT TO
ENJOIN INFRINGEMENT OF A PATENT, AND FOR AN ACCOUNTING. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO MORTON SALT CO. V. G. S. SUPPIGER CO.,
ANTE, P. 488, AND INVOLVES THE QUESTION WHETHER THE OWNER OF A METHOD
PATENT WHO AUTHORIZES MANUFACTURERS TO USE IT ONLY WITH MATERIALS
FURNISHED BY HIM MAY ENJOIN INFRINGEMENT BY ONE WHO SUPPLIES THE
MANUFACTURER WITH MATERIALS FOR USE BY THE PATENTED METHOD AND AIDS IN
SUCH USE. 

PETITIONER BROUGHT THE PRESENT SUIT FOR AN INJUNCTION AND AN
ACCOUNTING FOR INFRINGEMENT OF THE ELLIS PATENT, NO. 1,830,428, OF
NOVEMBER 3, 1931, FOR A METHOD OF REINFORCING INSOLES IN SHOE
MANUFACTURE.  RESPONDENTS DENIED INFRINGEMENT AND SET UP AS A FURTHER
DEFENSE PETITIONER'S MISUSE OF THE PATENT BY PERMITTING ITS USE ONLY
WITH THE UNPATENTED MATERIALS SOLD BY PETITIONER.  THE DISTRICT COURT
SUSTAINED THIS DEFENSE, 32 F.SUPP.  690, AND THE COURT OF APPEALS FOR
THE FIRST CIRCUIT AFFIRMED.  117 F.2D 829.  WE GRANTED CERTIORARI, 313
U.S. 558, BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED AND
BECAUSE WE WISHED TO CONSIDER THIS WITH THE MORTON SALT COMPANY CASE. 

CLAIM 4 OF THE PATENT IS FOR A METHOD "OF REINFORCING INSOLES WHICH
COMPRISES APPLYING, AT ROOM TEMPERATURE, TO A STRIP OF REINFORCING
MATERIAL PROVIDED WITH A DRY COATING OF A CEMENT HAVING A SUBSTANTIAL
RUBBER CONTENT, A COATING OF ADHESIVE CONTAINING A RELATIVELY LARGE
AMOUNT OF RUBBER AND OF SUCH A CHARACTER THAT IT WILL BE EFFECTIVE EVEN
WHEN FRESHLY APPLIED TO CAUSE QUICK ADHESION OF THE REINFORCING
MATERIAL AND THE MATERIAL OF THE INSOLE, AND APPLYING TO EACH OTHER,
STILL AT ROOM TEMPERATURE, A PORTION OF THE COATED STRIP AND THE INSOLE
TO BE REINFORCED."  BOTH COURTS BELOW SUSTAINED THE VALIDITY OF CLAIM 4
AND HELD IT WAS INFRINGED BY RESPONDENTS' SELLING TO PURCHASERS OF
PETITIONER'S MATERIALS LIKE MATERIAL FOR USE WITH THE PATENTED
PROCESS.  BUT BOTH HELD THAT PETITIONER WAS DEBARRED FROM ENJOINING THE
INFRINGEMENT BECAUSE OF THE MANNER OF CONDUCTING ITS BUSINESS, WHICH IS
TO SUPPLY SHOE MANUFACTURERS, FOR USE IN REINFORCING INSOLES, PRE
COATED FABRIC WHICH IT HAS SLIT INTO STRIPS OF SUITABLE WIDTH FOR USE
BY THE PATENTED METHOD.  IF THE MANUFACTURER DESIRES, HE PROVIDES THE
FABRIC AND PETITIONER PRE-COATS AND SLITS IT. PETITIONER SUPPLIES
ADHESIVE OF HIGH RUBBER CONTENT TO BE APPLIED TO THE PRE-COATED FABRIC
AT THE FACTORY, JUST BEFORE THE APPLICATION OF THE REINFORCING MATERIAL
TO THE INSOLE.  IT ALSO FURNISHES PATENTED MACHINES SUITABLE FOR
APPLYING THE ADHESIVE TO THE STRIPS, THE MACHINES REMAINING
PETITIONER'S PROPERTY. 

AS COMPENSATION, PETITIONER MAKES A SINGLE CHARGE TO THE SHOE
MANUFACTURER AT A RATE PER WEB YARD OF FABRIC USED, AND IF THE
MANUFACTURER DOES NOT FURNISH THE FABRIC THE PRICE OF THAT IS ADDED TO
THE CHARGE.  PETITIONER HAS NOT GRANTED TO SHOE MANUFACTURERS, OR ASKED
THEM TO TAKE, WRITTEN LICENSES.  THE COURTS BELOW HELD THAT
PETITIONER'S SALE TO MANUFACTURERS OF THE UNPATENTED MATERIALS FOR USE
BY THE PATENTED METHOD OPERATED AS A LICENSE TO USE THE PATENT WITH
THAT MATERIAL ALONE AND THUS RESTRAINED COMPETITION WITH PETITIONER IN
THE SALE OF THE UNPATENTED MATERIAL, AS IN CARBICE CORP. V. AMERICAN
PATENTS CORP., 283 U.S. 27, AND LEITCH MFG. CO. V. BARBER CO., 302 U.S.
458. 

PETITIONER INSISTS THAT THE RESPONDENTS' ACTS OF INFRINGEMENT, AS
FOUND BY THE DISTRICT COURT, WERE NOT LIMITED TO THE SALE OF MATERIAL
FOR USE BY THE PATENTED METHOD, AS IN THE CARBICE AND LEITCH CASES, BUT
AMOUNTED TO ACTIVE INDUCEMENT OF INFRINGEMENT BY THE SHOE MANUFACTURERS
AND TO COOPERATION WITH THEIR INFRINGING ACTS.  PETITIONER ARGUES THAT,
EVEN THOUGH UNDER THE CARBICE AND LEITCH CASES IT HAS "NO RIGHT TO BE
FREE FROM COMPETITION IN THE SALE" OF THE MATERIALS, IT HAS THE RIGHT
UNDER THE PATENT LAW TO RESTRAIN INFRINGEMENT IN ANY MANNER OTHER THAN
BY THE COMPETITIVE SALE OF THE UNPATENTED MATERIALS. 

WE MAY ASSUME, FOR PURPOSES OF DECISION, THAT RESPONDENTS'
INFRINGEMENT DID EXTEND BEYOND THE MERE SALE OF THE MATERIALS TO THE
MANUFACTURERS.  BUT IN VIEW OF PETITIONER'S USE OF THE PATENT AS THE
MEANS OF ESTABLISHING A LIMITED MONOPOLY IN ITS UNPATENTED MATERIALS,
AND FOR THE REASONS GIVEN IN OUR OPINION IN THE MORTON SALT COMPANY
CASE, WE HOLD THAT THE MAINTENANCE OF THIS SUIT TO RESTRAIN ANY FORM OF
INFRINGEMENT IS CONTRARY TO PUBLIC POLICY, AND THAT THE DISTRICT COURT
RIGHTLY DISMISSED IT. 

IT IS WITHOUT SIGNIFICANCE THAT, AS PETITIONER CONTENDS, IT IS NOT
PRACTICABLE TO EXPLOIT THE PATENT RIGHTS BY GRANTING LICENSES BECAUSE
OF THE PREFERENCES OF MANUFACTURERS AND OF THE METHODS BY WHICH
PETITIONER HAS FOUND IT CONVENIENT TO CONDUCT ITS BUSINESS.  THE PATENT
MONOPOLY IS NOT ENLARGED BY REASON OF THE FACT THAT IT WOULD BE MORE
CONVENIENT TO THE PATENTEE TO HAVE IT SO, OR BECAUSE HE CANNOT AVAIL
HIMSELF OF ITS BENEFITS WITHIN THE LIMITS OF THE GRANT. 

DESPITE THIS CONTENTION, PETITIONER SUGGESTS THAT IT IS ENTITLED TO
RELIEF BECAUSE IT IS NOW WILLING TO GIVE UNCONDITIONAL LICENSES TO
MANUFACTURERS ON A ROYALTY BASIS, WHICH IT OFFERS TO DO.  IT WILL BE
APPROPRIATE TO CONSIDER PETITIONER'S RIGHT TO RELIEF WHEN IT IS ABLE TO
SHOW THAT IT HAS FULLY ABANDONED ITS PRESENT METHOD OF RESTRAINING
COMPETITION IN THE SALE OF UNPATENTED ARTICLES AND THAT THE
CONSEQUENCES OF THAT PRACTICE HAVE BEEN FULLY DISSIPATED.  AFFIRMED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :







ILLINOIS GAS CO. V. PUBLIC SERVICE CO., 314 U.S. 498 


NO. 100.  ARGUED DECEMBER 19, 1941.  - DECIDED JANUARY 5, 1942.  - 375
ILL. 634, 32 N.E.2D 157, REVERSED. 


1.  A CORPORATION, ENGAGED WITHIN A STATE IN THE BUSINESS OF PIPING
NATURAL GAS AND SELLING IT WHOLESALE TO DISTRIBUTORS, WHOSE SUPPLY OF
GAS COMES FROM SOURCES OUTSIDE OF THE STATE AND MOVES IN CONTINUOUS
STREAMS FROM THE PIPELINE OF AN AFFILIATE AT THE STATE BORDER TO POINTS
WHERE THE CORPORATION DELIVERS IT TO ITS CUSTOMERS, IS SUBJECT TO THE
JURISDICTION OF THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT
OF JUNE 21, 1938, AND CAN NOT BE REQUIRED BY STATE AUTHORITY TO EXTEND
ITS FACILITIES AND MAKE SALES IN AN AREA ALREADY SERVED BY ANOTHER
NATURAL GAS COMPANY SIMILARLY ENGAGED AND SUBJECT TO THE ACT, WHEN NO
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FOR SUCH PROPOSED
EXTENSIONS AND SALES HAS BEEN GRANTED BY THE FEDERAL POWER COMMISSION
UNDER SEC. 7(C) OF THE STATUTE.  P. 508. 

2.  IT IS UNNECESSARY TO DETERMINE WHETHER THE INTERSTATE COMMERCE
COMES TO AN END WHEN THE COMPANY REDUCES THE GAS PRESSURE BEFORE
DELIVERY INTO THE SERVICE PIPES OF DISTRIBUTORS SO THAT THE SALES TO
DISTRIBUTORS ARE INTRASTATE IN CHARACTER, SINCE THE EXTENSION OF THE
COMPANY'S FACILITIES AS PROPOSED IN THIS CASE IS SO RELATED TO
INTERSTATE COMMERCE AS TO COME WITHIN THE CONGRESSIONAL POWER TO
REGULATE NOT ONLY INTERSTATE COMMERCE ITSELF, BUT ALSO THOSE MATTERS
WHICH MATERIALLY AFFECT SUCH COMMERCE.  P. 509. 

ILLINOIS NATURAL GAS CO. V. CENTRAL ILLINOIS PUBLIC SERVICE CO. ET
AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

APPEAL FROM A JUDGMENT AFFIRMING A JUDGMENT OF THE ILLINOIS CIRCUIT
COURT WHICH HAD SUSTAINED ON APPEAL AN ORDER OF THE ILLINOIS COMMERCE
COMMISSION.  THE ORDER REQUIRED THE APPELLANT TO SUPPLY ANOTHER COMPANY
WITH NATURAL GAS AND TO MAKE PIPELINE CONNECTIONS FOR THAT PURPOSE. 

THE SERIES OF TRANSACTIONS BY WHICH NATURAL GAS IS PRODUCED IN ONE
STATE, TRANSPORTED TO A LOCAL COMPANY IN ANOTHER, AND BY IT THERE
RESOLD IS NOT TO BE TREATED AS INDIVISIBLE BUT MUST BE BROKEN DOWN INTO
ITS COMPONENT PARTS AND THE CHARACTER OF SUCH PARTS SEPARATELY
DETERMINED. 

THE INTERSTATE CHARACTER OF SUCH TRANSMISSION TERMINATES UPON
DELIVERY OF THE GAS TO THE APPELLANT IN ILLINOIS.  APPELLANT'S RESALE
AND DELIVERY TO ITS CUSTOMERS WITHIN THE STATE ARE PURELY LOCAL
ACTIVITIES. 

PREVIOUS DECISIONS OF THIS COURT, AND THE BACKGROUND AND EXPRESS
LANGUAGE OF THE NATURAL GAS ACT, SUSTAIN THESE VIEWS. 

THE CASES RELIED UPON BY APPELLANT ARE EACH DISTINGUISHABLE UPON
THEIR FACTS.  ALTHOUGH SOME OF THE DICTA GIVE COLOR TO APPELLANT'S
POSITION, THE ACTUAL HOLDINGS AND GENERAL TENOR OF THE CASES SUSTAIN
THE APPELLEES. 

THE ILLINOIS COMMERCE COMMISSION, UNDER THE ILLINOIS STATUTE, HAS
JURISDICTION OVER APPELLANT'S ACTIVITIES. 

THE ORDER IS NOT REPUGNANT TO OR IN CONFLICT WITH THE COMMERCE
CLAUSE, AND IS CONSISTENT WITH THE NATURAL GAS ACT. 

APPELLANT'S ARGUMENT IS BASED ON THE ERRONEOUS ASSUMPTION THAT ITS
ACTIVITIES, AFTER RECEIVING THE GAS, ARE INTERSTATE IN CHARACTER. 

THE NATURAL GAS ACT VESTS IN THE FEDERAL POWER COMMISSION CONTROL
OVER ONLY SUCH COMPANIES AS TRANSPORT NATURAL GAS ACROSS STATE LINES. 
IT PROVIDES THAT THE SEVERAL STATES SHALL CONTINUE TO REGULATE THE
LOCAL RESALE AND DISTRIBUTION OF GAS WITHIN THEIR RESPECTIVE BORDERS,
AND SETS UP EXTENSIVE PROVISIONS LOOKING FORWARD TO CONTINUED ACTIVITY
ON THE PART OF BOTH STATE AND FEDERAL COMMISSIONS IN THIS FIELD, EACH
VOLUNTARILY COOPERATING WITH THE OTHERS. 

THE INTERESTS OF THE NATION WILL BEST BE SERVED BY FEDERAL CONTROL OF
SUCH INTERSTATE ACTIVITIES AS ARE HERE CARRIED ON BY PANHANDLE, AND
STATE CONTROL OF SUCH LOCAL ACTIVITIES AS THOSE OF THE APPELLANT. 

CASES CITED AND DISCUSSED:  MISSOURI V. KANSAS NATURAL GAS CO., 265
U.S. 298; EAST OHIO GAS CO. V. COMMISSION, 283 U.S. 465; SOUTHERN
NATURAL GAS CORP. V. ALABAMA, 301 U.S. 148, 155; NATURAL GAS PIPE LINE
CO. V. SLATTERY, 302 U.S. 300; BACON & SONS V. MARTIN, 305 U.S. 380;
ATLANTIC COAST LINE R. CO. V. STANDARD OIL CO., 274 U.S. 257; SCHECHTER
CORP. V. UNITED STATES, 295 U.S. 495; PUBLIC UTILITIES COMMISSION V.
LANDON, 249 U.S. 236; CHICAGO, M. & ST. P.R. CO. V. IOWA, 233 U.S. 334;
PEOPLES NATURAL GAS CO. V. PUBLIC SERVICE COMM'N, 270 U.S. 552;
NATIONAL LABOR RELATIONS BOARD V. CENTRAL MISSOURI TELEPHONE CO., 115
F.2D 563; UNITED STATES V. ERIE R. CO., 280 U.S. 98; UNITED STATES V.
ROCK ROYAL CO-OPERATIVE, 307 U.S. 533; CARSON PETROLEUM CO. V. VIAL,
279 U.S. 95; STATE TAX COMM'N V. INTERSTATE GAS CO., 284 U.S. 41;
PUBLIC UTILITIES COMM'N V. ATTLEBORO STEAM & ELEC.  CO., 273 U.S. 83;
WESTERN UNION TELEGRAPH CO. V. FOSTER, 247 U.S. 105; IN RE BILLINGS GAS
CO., 35 P.U.R. (N.S.)  321; HINES V. DAVIDOWITZ, 312 U.S. 52; ALABAMA &
VICKSBURG RY. CO. V. JACKSON & EASTERN RY. CO., 271 U.S. 246; O'BRIEN
V. WESTERN UNION TELEGRAPH CO., 113 F.2D 539; KENTUCKY NATURAL GAS
CORP. V. PUBLIC SERVICE COMM'N, 28 F.SUPP.  509, AFF'D 119 F.2D 417;
PEOPLE EX REL. N.Y.C.R. CO. V. PUBLIC SERVICE COMM'N, 233 N.Y. 113;
ERIE R. CO. V. NEW YORK, 233 U.S. 671; CHICAGO, R.I. & P.R. CO. V.
HARDWICKE FARMERS ELEV.  CO., 226 U.S. 426; MISSOURI PACIFIC R. CO. V.
STROUD, 267 U.S. 404. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

ON COMPLAINT OF APPELLEE, CENTRAL ILLINOIS PUBLIC SERVICE COMPANY,
WHICH IS ENGAGED IN THE DISTRIBUTION OF NATURAL GAS TO CONSUMERS IN
VARIOUS CITIES AND TOWNS IN ILLINOIS, APPELLEE, ILLINOIS COMMERCE
COMMISSION, MADE ITS ORDER REQUIRING APPELLANT, ILLINOIS NATURAL GAS
COMPANY, TO SUPPLY THE CENTRAL COMPANY WITH NATURAL GAS AND TO
ESTABLISH THE PIPE LINE CONNECTION NECESSARY FOR THAT PURPOSE.  IN THE
PROCEEDINGS BEFORE THE COMMISSION, APPELLANT CONTENDED THAT ITS ENTIRE
OPERATIONS AND BUSINESS IN ILLINOIS CONSTITUTE INTERSTATE COMMERCE AND
CHALLENGED THE COMMISSION'S EXERCISE OF ITS JURISDICTION AND ITS ORDER,
AS IN CONFLICT WITH THE COMMERCE CLAUSE AND THE PROVISIONS OF THE
NATURAL GAS ACT, 52 STAT. 821-833, 15 U.S.C. SECS. 717-717W.  SECTION
7(C), 15 U.S.C. SEC. 717F (C), IT WAS CONTENDED, PROHIBITS SUCH
EXTENSION OF FACILITIES AND SALE OF GAS TO DISTRIBUTORS WITHOUT A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FROM THE FEDERAL POWER
COMMISSION. 

ON REVIEW, THE ILLINOIS CIRCUIT COURT SUSTAINED THE ORDER AND THE
ILLINOIS SUPREME COURT AFFIRMED, 375 ILL. 634, 32 N.E.2D 157, HOLDING
THAT THE ACTIVITIES OF APPELLANT AFFECTED BY THE COMMISSION'S ORDER
CONSTITUTE INTRASTATE COMMERCE, TO WHICH THE PROVISIONS OF THE NATURAL
GAS ACT DO NOT APPLY, AND THAT THOSE ACTIVITIES ARE, THEREFORE, SUBJECT
TO STATE REGULATION.  THE CASE COMES HERE ON APPEAL UNDER SEC. 237 OF
THE JUDICIAL CODE AS AMENDED, 28 U.S.C. SEC. 344(A). 

APPELLANT, AN ILLINOIS CORPORATION, IS A WHOLLY OWNED SUBSIDIARY OF
PANHANDLE EASTERN PIPE LINE COMPANY, WHICH OWNS AND OPERATES A NATURAL
GAS PIPE LINE SYSTEM EXTENDING FROM GAS FIELDS IN TEXAS, KANSAS AND
OKLAHOMA ACROSS ILLINOIS AND INTO INDIANA.  APPELLANT OWNS A PIPE LINE
SYSTEM WHOLLY IN ILLINOIS, WHOSE TRANSMISSION PIPE LINES CONNECT AT
VARIOUS POINTS IN ILLINOIS WITH THE MAIN LINE OF PANHANDLE EASTERN. 
APPELLANT, BY LONG TERM CONTRACT, PURCHASES ITS SUPPLY OF GAS FROM
PANHANDLE EASTERN AND TRANSPORTS IT THROUGH ITS OWN LINES TO LOCAL GAS
DISTRIBUTING UTILITIES IN ILLINOIS, TO WHICH IT SELLS THE GAS FOR
DISTRIBUTION TO CONSUMERS IN ILLINOIS CITIES AND TOWNS.  IT ALSO SELLS
AND DELIVERS GAS TO SEVERAL INDUSTRIAL CONSUMERS IN THE STATE.  THE GAS
MOVES CONTINUOUSLY, UNDER PRESSURE APPLIED BY PANHANDLE, FROM THE GAS
FIELDS UNTIL IT ENTERS APPELLANT'S TRANSMISSION LINES, WHERE APPELLANT
REDUCES THE PRESSURE ACCORDING TO THE NEEDS OF ITS SERVICE.  AFTER THE
REDUCTION OF PRESSURE, THE GAS CONTINUES TO MOVE IN APPELLANT'S LINES
UNTIL IT PASSES INTO THE SERVICE PIPES OF THE LOCAL DISTRIBUTORS, OR
INDUSTRIAL USERS, WHERE THE PRESSURE IS AGAIN SUBSTANTIALLY REDUCED. 
THE CENTRAL ILLINOIS PUBLIC SERVICE COMPANY IS DISTRIBUTING NATURAL GAS
TO CONSUMERS IN SEVERAL ILLINOIS TOWNS AND CITIES, WHICH IT PURCHASES
FOR RESALE FROM UNIVERSAL GAS COMPANY, AND TAKES FROM THE PIPE LINE OF
THE LATTER AT THE ILLINOIS STATE LINE.  UNIVERSAL, IN TURN, ACQUIRES
THE GAS IN INDIANA FROM PANHANDLE EASTERN, AND FROM KENTUCKY NATURAL
GAS COMPANY. 

THE ILLINOIS COMMISSION FOUND THAT APPELLANT'S OPERATIONS IN THE SALE
OF THE GAS TO DISTRIBUTORS IN THE STATE ARE WHOLLY INTRASTATE COMMERCE;
THAT THE SUPPLY OF GAS CAPABLE OF PASSING THROUGH CENTRAL'S PIPE LINE
IS INADEQUATE TO SUPPLY THE ILLINOIS COMMUNITIES SERVED BY IT.  THE
COMMISSION THEN ORDERED APPELLANT TO EXTEND ITS PIPE LINE SO AS TO
CONNECT WITH CENTRAL'S PIPE LINE SYSTEM AND TO SUPPLY GAS IN SUFFICIENT
QUANTITIES TO ENABLE IT TO SATISFY THE NEEDS OF ITS CUSTOMERS. 

THAT APPELLANT AND PANHANDLE EASTERN ARE ENGAGED IN INTERSTATE
COMMERCE IN THE PURCHASE AND SALE OF THE NATURAL GAS WHICH MOVES IN A
CONTINUOUS STREAM FROM POINTS WITHOUT THE STATE INTO APPELLANT'S PIPES
WITHIN THE STATE SEEMS NOT TO BE OPEN TO QUESTION.  MISSOURI V. KANSAS
GAS CO., 265 U.S. 298; OZARK PIPE LINE CORP. V. MONIER, 266 U.S. 555;
PEOPLES GAS CO. V. PUBLIC SERVICE COMMISSION, 270 U.S. 550; STATE TAX
COMMISSION V. INTERSTATE GAS CO., 284 U.S. 41.  PURSUANT TO THE MUTUAL
AGREEMENT OF THE TWO COMPANIES, THE GAS IS TRANSPORTED IN CONTINUOUS
MOVEMENT THROUGH THE PIPE LINE INTO THE STATE AND THROUGH APPELLANT'S
PIPES TO THE SERVICE LINES OF THE DISTRIBUTORS, WHERE APPELLANT
DELIVERS IT TO THEM.  IN SUCH A TRANSACTION THE PARTICULAR POINT AT
WHICH THE TITLE AND CUSTODY OF THE GAS PASS TO THE PURCHASER, WITHOUT
ARRESTING ITS MOVEMENT TO THE INTENDED DESTINATION, DOES NOT AFFECT THE
ESSENTIAL INTERSTATE NATURE OF THE BUSINESS.  SEE PEOPLES GAS CO. V.
PUBLIC SERVICE COMMISSION, SUPRA, 554; PENNSYLVANIA V. WEST VIRGINIA,
262 U.S. 553, 587; UNITED FUEL GAS CO. V. HALLANAN, 257 U.S. 277, 280
281. 

BUT APPELLEE ARGUES, AS THE STATE SUPREME COURT HELD, THAT ALTHOUGH
THE SALE OF THE GAS AND ITS MOVEMENT INTO THE STATE IS INTERSTATE
COMMERCE, THAT COMMERCE COMES TO AN END WHEN APPELLANT REDUCES THE GAS
PRESSURE BEFORE ITS DELIVERY INTO THE SERVICE PIPES OF THE
DISTRIBUTORS.  IN CONSEQUENCE, IT IS ASSERTED, THE SALE OF THE GAS TO
THE DISTRIBUTORS IS INTRASTATE COMMERCE SUBJECT TO STATE REGULATION BY
THE COMMISSION'S ORDER, AND IS THEREFORE NOT WITHIN THE PURVIEW OF THE
NATURAL GAS ACT, WHICH IS SAID TO BE APPLICABLE ONLY TO INTERSTATE
COMMERCE. 

THIS COURT HAS HELD THAT THE RETAIL SALE OF GAS AT THE BURNER TIPS BY
ONE WHO PIPES THE GAS INTO THE STATE, OR BY ONE WHO IS A LOCAL
DISTRIBUTOR ACQUIRING THE GAS FROM ANOTHER WHO HAS SIMILARLY BROUGHT IT
INTO THE STATE, IS A SALE IN INTRASTATE COMMERCE, SINCE THE INTERSTATE
COMMERCE WAS SAID TO END UPON THE INTRODUCTION OF THE GAS INTO THE
SERVICE PIPES OF THE DISTRIBUTOR.  PUBLIC UTILITIES COMMISSION V.
LANDON, 249 U.S. 236; EAST OHIO GAS CO. V. TAX COMMISSION, 283 U.S.
465.  IN APPLYING THIS MECHANICAL TEST FOR DETERMINING WHEN INTERSTATE
COMMERCE ENDS AND INTRASTATE COMMERCE BEGINS, THIS COURT HAS HELD THAT
THE INTERSTATE TRANSPORTATION AND THE SALE OF GAS AT WHOLESALE TO LOCAL
DISTRIBUTING COMPANIES IS NOT SUBJECT TO STATE CONTROL OF RATES,
MISSOURI V. KANSAS GAS CO., SUPRA; SEE PUBLIC UTILITIES COMMISSION V.
LANDON, SUPRA, 245; CF. PUBLIC UTILITIES COMMISSION V. ATTLEBORO CO.,
273 U.S. 83, 89, OR TO A STATE PRIVILEGE TAX, STATE TAX COMMISSION V.
INTERSTATE GAS CO., SUPRA.  YET, STATE REGULATION OF LOCAL RETAIL RATES
TO ULTIMATE CONSUMERS HAS BEEN SUSTAINED WHERE THE GAS SO DISTRIBUTED
WAS PURCHASED AT WHOLESALE FROM ONE WHO HAD PIPED THE GAS INTO THE
STATE, PUBLIC UTILITIES COMMISSION V. LANDON, SUPRA, AS HAS A STATE TAX
MEASURED BY RECEIPTS FROM LOCAL RETAIL SALES OF GAS BY ONE WHO HAS
SIMILARLY BROUGHT THE GAS INTO THE STATE.  EAST OHIO GAS CO. V. TAX
COMMISSION, SUPRA. 

IN OTHER CASES, THE COURT, IN DETERMINING THE VALIDITY OF STATE
REGULATIONS, HAS BEEN LESS CONCERNED TO FIND A POINT IN TIME AND SPACE
WHERE THE INTERSTATE COMMERCE IN GAS ENDS AND INTRASTATE COMMERCE
BEGINS, AND HAS LOOKED TO THE NATURE OF THE STATE REGULATION INVOLVED,
THE OBJECTIVE OF THE STATE, AND THE EFFECT OF THE REGULATION UPON THE
NATIONAL INTEREST IN THE COMMERCE.  CF. SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177, 185, 187, ET SEQ.; CALIFORNIA V.
THOMPSON, 313 U.S. 109, 113, 114; DUCKWORTH V. ARKANSAS, ANTE, P. 390. 
THUS, IN PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMMISSION, 252 U.S.
23, WHERE NATURAL GAS WAS TRANSPORTED BY PIPE LINE FROM ONE STATE INTO
ANOTHER AND THERE SOLD DIRECTLY TO ULTIMATE LOCAL CONSUMERS, IT WAS
HELD THAT, ALTHOUGH THE SALE WAS A PART OF INTERSTATE COMMERCE, A STATE
PUBLIC SERVICE COMMISSION COULD REGULATE THE RATES FOR SERVICE TO SUCH
CONSUMERS.  WHILE THE COURT RECOGNIZED THAT THIS LOCAL REGULATION WOULD
TO SOME EXTENT AFFECT INTERSTATE COMMERCE IN GAS, IT WAS THOUGHT THAT
THE CONTROL OF RATES WAS A MATTER SO PECULIARLY OF LOCAL CONCERN THAT
THE REGULATION SHOULD BE DEEMED WITHIN STATE POWER.  CF. ARKANSAS
LOUISIANA GAS CO. V. DEPT. OF PUBLIC UTILITIES, 304 U.S. 61.  AND,
SIMILARLY, THIS COURT HAS SUSTAINED A NON-DISCRIMINATORY TAX ON THE
SALE TO A BUYER WITHIN THE TAXING STATE OF A COMMODITY SHIPPED
INTERSTATE IN PERFORMANCE OF THE SALES CONTRACT, NOT UPON THE GROUND
THAT THE DELIVERY WAS NOT A PART OF INTERSTATE COMMERCE, SEE EAST OHIO
GAS CO. V. TAX COMMISSION, SUPRA, BUT BECAUSE THE TAX WAS NOT A
PROHIBITED REGULATION OF, OR BURDEN ON, THAT COMMERCE.  WILOIL
CORPORATION V. PENNSYLVANIA, 294 U.S. 169; MCGOLDRICK V. BERWIND-WHITE
CO., 309 U.S. 33, 50.  IN SOUTHERN GAS CORP. V. ALABAMA, 301 U.S. 148,
156-57, ON WHICH THE ILLINOIS SUPREME COURT RELIED, WE HELD ONLY THAT
THE SALE OF GAS TO A LOCAL INDUSTRIAL CONSUMER BY ONE WHO WAS PIPING
THE GAS INTO THE STATE WAS A LOCAL BUSINESS SUFFICIENT TO SUSTAIN A
FRANCHISE TAX ON THE PRIVILEGE OF DOING BUSINESS WITHIN THE STATE,
MEASURED BY ALL THE TAXPAYER'S PROPERTY LOCATED THERE, INCLUDING THAT
USED FOR WHOLESALE DISTRIBUTION OF GAS TO LOCAL PUBLIC SERVICE
COMPANIES. 

IN THE ABSENCE OF ANY CONTROLLING ACT OF CONGRESS, WE SHOULD NOW BE
FACED WITH THE QUESTION WHETHER THE INTEREST OF THE STATE IN THE
PRESENT REGULATION OF THE SALE AND DISTRIBUTION OF GAS TRANSPORTED INTO
THE STATE, BALANCED AGAINST THE EFFECT OF SUCH CONTROL ON THE COMMERCE
IN ITS NATIONAL ASPECT, IS A MORE RELIABLE TOUCHSTONE FOR ASCERTAINING
STATE POWER THAN THE MECHANICAL DISTINCTIONS ON WHICH APPELLEE RELIES. 
BUT WE ARE UNDER NO NECESSITY OF MAKING THAT CHOICE HERE, FOR CONGRESS,
BY THE NATURAL GAS ACT, HAS BROUGHT UNDER NATIONAL CONTROL THE VERY
MATTERS WHICH THE STATE HAS UNDERTAKEN TO REGULATE BY THE ORDER.    AN
AVOWED PURPOSE OF THE NATURAL GAS ACT OF JUNE 21, 1938, WAS TO AFFORD,
THROUGH THE EXERCISE OF THE NATIONAL POWER OVER INTERSTATE COMMERCE, AN
AGENCY FOR REGULATING THE WHOLESALE DISTRIBUTION TO PUBLIC SERVICE
COMPANIES OF NATURAL GAS MOVING INTERSTATE, WHICH THIS COURT HAD
DECLARED TO BE INTERSTATE COMMERCE NOT SUBJECT TO CERTAIN TYPES OF
STATE REGULATION.  H. REP. NO. 709, COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, 75TH CONG., 1ST SESS., APRIL 28, 1937.  FN1  BY ITS
ENACTMENT, CONGRESS UNDERTOOK TO REGULATE A DEFINED CLASS OF NATURAL
GAS DISTRIBUTION, WITHOUT THE NECESSITY, WHERE CONGRESS HAS NOT ACTED,
OF DRAWING THE PRECISE LINE BETWEEN STATE AND FEDERAL POWER BY THE
LITIGATION OF PARTICULAR CASES.  BY SEC. 1(B), 15 U.S.C. SEC. 717(B),
THE ACT IS RESTRICTED IN ITS APPLICATION "TO THE TRANSPORTATION OF
NATURAL GAS IN INTERSTATE COMMERCE, TO THE SALE IN INTERSTATE COMMERCE
OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC CONSUMPTION FOR DOMESTIC,
COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE, AND TO NATURALGAS COMPANIES
ENGAGED IN SUCH TRANSPORTATION OR SALE  ...  "  AND BY SEC. 2(6), 15
U.S.C. SEC. 717A (6) "NATURAL-GAS COMPANY" MEANS A PERSON (INCLUDING A
CORPORATION) ENGAGED IN THE TRANSPORTATION OF NATURAL GAS IN INTERSTATE
COMMERCE OR THE SALE IN INTERSTATE COMMERCE OF SUCH GAS FOR RESALE. 
COMMISSION EXTENSIVE CONTROL OVER THE RATES AT WHICH THE GAS IS SOLD
FOR RESALE.  UNDER SEC. 7(A), 15 U.S.C. SEC. 717F (A) THE COMMISSION
HAS AUTHORITY TO ORDER NATURALGAS COMPANIES TO EXTEND THEIR SYSTEMS TO
ESTABLISH PHYSICAL CONNECTIONS OF THEIR TRANSPORTATION FACILITIES WITH
THOSE OF DISTRIBUTORS, AND TO SELL GAS TO THEM.  SECTION 7(B) PROHIBITS
THE ABANDONMENT OF THE FACILITIES OF NATURAL-GAS COMPANIES WITHOUT
APPROVAL OF THE COMMISSION.  SECTION 7(C), HERE INVOLVED, PROVIDES THAT
"NO NATURAL-GAS COMPANY SHALL UNDERTAKE THE CONSTRUCTION OR EXTENSION
OF ANY FACILITIES FOR THE TRANSPORTATION OF NATURAL GAS TO A MARKET IN
WHICH NATURAL GAS IS ALREADY BEING SERVED BY ANOTHER NATURAL-GAS
COMPANY, OR ACQUIRE OR OPERATE ANY SUCH FACILITIES OR EXTENSIONS
THEREOF, OR ENGAGE IN ANY TRANSPORTATION BY MEANS OF ANY NEW OR
ADDITIONAL FACILITIES, OR SELL NATURAL GAS IN ANY SUCH MARKET," WITHOUT
THE FEDERAL COMMISSION'S CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY. 

WE THINK IT PLAIN THAT THESE PROVISIONS, READ IN THE LIGHT OF THE
LEGISLATIVE HISTORY, WERE INTENDED TO BRING UNDER FEDERAL REGULATION
WHOLESALE DISTRIBUTION, LIKE THAT OF APPELLANT, OF GAS MOVING
INTERSTATE.  APPELLANT ENGAGES IN INTERSTATE COMMERCE IN GAS AND IN ITS
INTERSTATE TRANSPORTATION, AS THOSE TERMS HAD BEEN DEFINED BY THIS
COURT, BEFORE THE ADOPTION OF THE ACT.  AFTER THE GAS IS BROUGHT INTO
THE STATE, APPELLANT MAKES THE FIRST SALE TO DISTRIBUTORS FOR RESALE,
TO WHICH THE ACT IN TERMS APPLIES, AND WHICH THE CASES LAST MENTIONED
DEFINED AS A PART OF THE COMMERCE SUBJECT IN SOME RESPECTS TO THE
EXCLUSIVE REGULATION OF CONGRESS.  CF. PARKER V. MOTOR BOAT SALES,
INC., ANTE, P. 244.  SECTION 7 OF THE ACT COMMITS TO THE FEDERAL
COMMISSION THE CONTROL OF EXTENSIONS AND ABANDONMENT OF THE
TRANSPORTATION FACILITIES OF NATURAL-GAS COMPANIES, THEIR PHYSICAL
CONNECTION WITH THOSE OF DISTRIBUTORS AND SALES TO DISTRIBUTORS, AND
PROHIBITS EXTENSIONS, SUCH AS THE STATE COMMISSION HAS NOW ORDERED,
INTO AN AREA ALREADY SERVED BY ANOTHER NATURAL-GAS COMPANY, UNLESS THE
COMMISSION HAS FIRST GRANTED A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY.  SINCE THE COMMUNITIES HERE ARE SUPPLIED BY THE UNIVERSAL
AND CENTRAL COMPANIES, WHICH TRANSPORT THE GAS INTERSTATE, THEY
CONSTITUTE A MARKET ALREADY SERVED BY A NATURAL-GAS COMPANY WITHIN SEC.
7(C) AND SEC. 2(6) OF THE ACT. 

THE FEDERAL COMMISSION HAS RULED THAT IT HAS JURISDICTION UNDER THE
ACT OVER COMPANIES WHICH, LIKE APPELLANT, SELL AT WHOLESALE TO LOCAL
DISTRIBUTORS GAS MOVING INTERSTATE.  RE BILLINGS GAS COMPANY, 35 P.U.R.
(N.S.)  321; RE EAST OHIO GAS COMPANY, 28 P.U.R. (N.S.)  129.  THE
PROCEEDINGS OF THE COMMISSION UNDER SEC. 7(C) INDICATE THE MANY
IMPORTANT MATTERS WHICH IT TAKES INTO CONSIDERATION IN DETERMINING
WHETHER AN EXTENSION OF FACILITIES IN A CASE SUCH AS THIS SHOULD BE
PERMITTED.  FN2 

IN DETERMINING THE SCOPE OF THE FEDERAL POWER OVER THE PROPOSED
EXTENSION OF FACILITIES AND SALE OF GAS, IT IS UNNECESSARY TO
SCRUTINIZE WITH METICULOUS CARE THE PHYSICAL CHARACTERISTICS OF
APPELLANT'S BUSINESS, IN ORDER TO ASCERTAIN WHETHER, AS THE COURT BELOW
HELD, THE INTERSTATE COMMERCE INVOLVED IN BRINGING THE GAS INTO THE
STATE ENDS BEFORE DELIVERY TO DISTRIBUTORS.  IN ANY CASE, THE PROPOSED
EXTENSION OF APPELLANT'S FACILITIES IS SO INTIMATELY ASSOCIATED WITH
THE COMMERCE, AND WOULD SO AFFECT ITS VOLUME MOVING INTO THE STATE AND
DISTRIBUTION AMONG THE STATES, AS TO BE WITHIN THE CONGRESSIONAL POWER
TO REGULATE THOSE MATTERS WHICH MATERIALLY AFFECT INTERSTATE COMMERCE,
AS WELL AS THE COMMERCE ITSELF.  SOUTHERN RY. CO. V. UNITED STATES, 222
U.S. 20; HOUSTON, E. & W.T. RY. CO. V. UNITED STATES, 234 U.S. 342;
RAILROAD COMM'N OF WISCONSIN V. CHICAGO, B. & Q.R. CO., 257 U.S. 563;
SEE UNITED STATES V. DARBY, 312 U.S. 100, 119-120. 

AS CONGRESS, BY SEC. 7(A)(C) OF THE ACT, HAS GIVEN PLENARY AUTHORITY
TO THE FEDERAL COMMISSION TO REGULATE EXTENSIONS OF GAS TRANSPORTATION
FACILITIES AND THEIR PHYSICAL CONNECTION WITH THOSE OF DISTRIBUTORS, AS
WELL AS THE SALE OF GAS TO THEM, AND SINCE NO CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY, REQUIRED BY SEC. 7(C), HAS BEEN GRANTED TO
APPELLANT BY THE FEDERAL COMMISSION FOR THE PROPOSED EXTENSIONS AND
SALE, THE STATE COMMISSION WAS WITHOUT POWER TO ORDER THEM.  REVERSED. 

FN1  THE COMMITTEE SAID OF THE PROPOSED BILL: 

"IT CONFERS JURISDICTION UPON THE FEDERAL POWER COMMISSION OVER THE
TRANSPORTATION OF NATURAL GAS IN INTERSTATE COMMERCE, AND THE SALE IN
INTERSTATE COMMERCE OF NATURAL GAS FOR RESALE FOR ULTIMATE PUBLIC
CONSUMPTION FOR DOMESTIC, COMMERCIAL, INDUSTRIAL, OR ANY OTHER USE. 
THE STATES HAVE, OF COURSE, FOR MANY YEARS REGULATED SALES OF NATURAL
GAS TO CONSUMERS IN INTRASTATE TRANSACTIONS.  THE STATES HAVE ALSO BEEN
ABLE TO REGULATE SALES TO CONSUMERS EVEN THOUGH SUCH SALES ARE IN
INTERSTATE COMMERCE, SUCH SALES BEING CONSIDERED LOCAL IN CHARACTER AND
IN THE ABSENCE OF CONGRESSIONAL PROHIBITION SUBJECT TO STATE
REGULATION.  (SEE PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMMISSION
(1920), 252 U.S. 23.)  THERE IS NO INTENTION IN ENACTING THE PRESENT
LEGISLATION TO DISTURB THE STATES IN THEIR EXERCISE OF SUCH
JURISDICTION.  HOWEVER, IN THE CASE OF SALES FOR RESALE, OR SO-CALLED
WHOLESALE SALES, IN INTERSTATE COMMERCE (FOR EXAMPLE, SALES BY
PRODUCING COMPANIES TO DISTRIBUTING COMPANIES) THE LEGAL SITUATION IS
DIFFERENT.  SUCH TRANSACTIONS HAVE BEEN CONSIDERED TO BE NOT LOCAL IN
CHARACTER AND, EVEN IN THE ABSENCE OF CONGRESSIONAL ACTION, NOT SUBJECT
TO STATE REGULATION.  (SEE MISSOURI V. KANSAS GAS CO. (1924), 265 U.S.
298, AND PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM & ELECTRIC CO.
(1927), 273 U.S. 83.)  THE BASIC PURPOSE OF THE PRESENT LEGISLATION IS
TO OCCUPY THIS FIELD IN WHICH THE SUPREME COURT HAS HELD THAT THE
STATES MAY NOT ACT." 

FN2  IN IN RE KANSAS PIPE LINE & GAS CO., NO. G-106 AND IN RE NORTH
DAKOTA CONSUMERS GAS CO., NO. G-119, OCTOBER 24, 1939, IT INQUIRED: 

(1)  WHETHER THE APPLICANT POSSESSED A SUPPLY OF NATURAL GAS ADEQUATE
TO MEET THOSE DEMANDS WHICH IT WAS REASONABLE TO ASSUME WOULD BE MADE
UPON IT; (2) WHETHER THERE EXISTED IN THE TERRITORY PROPOSED TO BE
SERVED CUSTOMERS WHO COULD REASONABLY BE EXPECTED TO USE SUCH GAS
SERVICE; (3) WHETHER THE FACILITIES PROPOSED TO BE CONSTRUCTED WOULD BE
ADEQUATE TO MEET THE ESTIMATED DEMANDS FOR GAS IN THE AREA; (4) WHETHER
APPLICANT POSSESSED ADEQUATE FINANCIAL RESOURCES WITH WHICH TO
CONSTRUCT THE FACILITIES PROPOSED; (5) WHETHER THE COST OF CONSTRUCTION
OF THE FACILITIES PROPOSED WAS ADEQUATE AND REASONABLE; (6) WHETHER
ANTICIPATED FIXED CHARGES WERE REASONABLE; (7) WHETHER THE RATES
PROPOSED TO BE CHARGED WERE REASONABLE, COMPARING IN THAT CONNECTION
THE PROPOSED RATES WITH THOSE OF OTHER NATURAL-GAS COMPANIES ALREADY
SERVING THE TERRITORY. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















EX PARTE COLONNA, 314 U.S. 510 


NO. - , ORIGINAL.  DECIDED JANUARY 5, 1942.  - MOTION FOR LEAVE TO FILE
DENIED. 


IN VIEW OF SEC. 7(B) OF THE TRADING WITH THE ENEMY ACT AND OF THE
STATE OF WAR EXISTING BETWEEN THIS COUNTRY AND ITALY, AN APPLICATION TO
THIS COURT BY THE ITALIAN AMBASSADOR, PRAYING FOR PROCESS LOOKING TO
THE RELEASE OF A VESSEL AND CARGO OWNED BY ITALY FROM A LIBEL
PROCEEDING IN A DISTRICT COURT, WILL NOT BE ENTERTAINED.  P. 511. 

EX PARTE DON ASCANIO COLONNA. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF PROHIBITION AND
MANDAMUS. 

PER CURIAM: 

PETITIONER, THE ROYAL ITALIAN AMBASSADOR, SEEKS LEAVE TO FILE IN THIS
COURT A PETITION FOR WRITS OF PROHIBITION AND MANDAMUS, DIRECTED TO THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.  THE BASIS
OF THIS APPLICATION IS PETITIONER'S ALLEGATION THAT A VESSEL AND ITS
CARGO OF OIL, THE SUBJECT OF LITIGATION IN THE DISTRICT COURT AND NOW
IN ITS POSSESSION, ARE THE PROPERTY OF THE ITALIAN GOVERNMENT AND ARE
ENTITLED TO THE BENEFIT OF ITALY'S SOVEREIGN IMMUNITY FROM SUIT. 

AFTER THE MOTION WAS FILED, THERE OCCURRED ON DECEMBER 11, 1941, THE
DECLARATION THAT THE UNITED STATES IS AT WAR WITH ITALY.  SECTION 2(B)
OF THE TRADING WITH THE ENEMY ACT, 40 STAT. 411, DEFINES "ENEMY" TO
INCLUDE THE GOVERNMENT OF ANY NATION WITH WHICH THE UNITED STATES IS AT
WAR.  SECTION 7(B) CONTAINS THE FOLLOWING PROVISION, 40 STAT. AT 417: 

"NOTHING IN THIS ACT SHALL BE DEEMED TO AUTHORIZE THE PROSECUTION OF
ANY SUIT OR ACTION AT LAW OR IN EQUITY IN ANY COURT WITHIN THE UNITED
STATES BY AN ENEMY OR ALLY OF ENEMY PRIOR TO THE END OF THE WAR, EXCEPT
AS PROVIDED IN SECTION TEN HEREOF" (WHICH RELATES TO PATENT, TRADEMARK
AND COPYRIGHT SUITS) "  ...  AND PROVIDED FURTHER, THAT AN ENEMY OR
ALLY OF ENEMY MAY DEFEND BY COUNSEL ANY SUIT IN EQUITY OR ACTION AT LAW
WHICH MAY BE BROUGHT AGAINST HIM." 

THIS PROVISION WAS INSERTED IN THE ACT IN THE LIGHT OF THE PRINCIPLE,
RECOGNIZED BY CONGRESS AND BY THIS COURT, THAT WAR SUSPENDS THE RIGHT
OF ENEMY PLAINTIFFS TO PROSECUTE ACTIONS IN OUR COURTS.  SEE S. REPTS. 
NOS.  111 AND 113, PP. 21, 24, 65TH CONG., 1ST SESS.; CAPERTON V.
BOWYER, 14 WALL.  216, 236; HANGER V. ABBOTT, 6 WALL.  532, 536-37,
539; MASTERSON V. HOWARD, 18 WALL.  99, 105; PORTER V. FREUDENBERG,
(1915) 1 K.B. 857, 866-80.  IN VIEW OF THE STATUTE AND THE OPINIONS IN
THE CASES CITED, THE APPLICATION WILL NOT BE ENTERTAINED.  CF.
ROTHBARTH V. HERZFELD, 179 APP. DIV. 865, 867-69, 167 N.Y.S. 199,
AFFIRMED 223 N.Y. 578, 119 N.E. 1075.  MOTION FOR LEAVE TO FILE
DENIED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE DECISION OF THIS
APPLICATION. 
..END :



















NATIONAL LABOR RELATIONS BOARD V. P. LORILLARD CO., 314 U.S. 512 


NO. 71.  ARGUED DECEMBER 18, 19, 1941.  - DECIDED JANUARY 5, 1942.  -
117 F.2D 921, REVERSED. 


WHETHER AN EMPLOYER SHOULD BE REQUIRED TO BARGAIN WITH A UNION
PREVIOUSLY SELECTED AS EMPLOYEES' BARGAINING REPRESENTATIVE OR, IN VIEW
OF LAPSE OF TIME AND CHANGED CONDITIONS, A NEW ELECTION SHOULD BE HELD
IS A QUESTION FOR DECISION BY THE BOARD AND NOT BY THE CIRCUIT COURT OF
APPEALS.  P. 513. 

NATIONAL LABOR RELATIONS BOARD V. P. LORILLARD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 313 U.S. 557, TO REVIEW A JUDGMENT ENTERED ON A PETITION
OF THE NATIONAL LABOR RELATIONS BOARD FOR ENFORCEMENT OF AN ORDER, 16
N.L.R.B. 684.  THE JUDGMENT SUSTAINED THE ORDER AS MADE BUT INTRODUCED
A MODIFICATION REQUIRING THE BOARD TO CONDUCT AN ELECTION AS PRAYED BY
THE RESPONDENT-EMPLOYER IN A PETITION FOR REHEARING. 

PER CURIAM: 

THE BOARD FOUND THAT THE RESPONDENT, P. LORILLARD COMPANY, HAD
COMMITTED AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC. 8(5) OF
THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, 453, BY REFUSING TO
BARGAIN COLLECTIVELY WITH PIONEER TOBACCO WORKERS' LOCAL INDUSTRIAL
UNION NO. 55, WHICH WAS AT THE TIME THE DULY SELECTED BARGAINING
REPRESENTATIVE OF A MAJORITY OF LORILLARD'S EMPLOYEES.  THE BOARD
AFFIRMATIVELY ORDERED LORILLARD TO BARGAIN COLLECTIVELY WITH LOCAL NO.
55.  ON THE BOARD'S PETITION FOR ENFORCEMENT THE COURT BELOW SUSTAINED
THE BOARD'S FINDING, BUT, EXPRESSING THE BELIEF THAT BECAUSE OF LAPSE
OF TIME AND CHANGED CONDITIONS THE LOCAL MIGHT NO LONGER REPRESENT THE
MAJORITY OF EMPLOYEES, MODIFIED THE BOARD'S ORDER SO AS TO REQUIRE IT
TO CONDUCT AN ELECTION TO DETERMINE WHETHER THE LOCAL HAD LOST ITS
MAJORITY DUE TO A SHIFT OF EMPLOYEES TO A RIVAL INDEPENDENT
ASSOCIATION.  THE BOARD HAD CONSIDERED THE EFFECT OF A POSSIBLE SHIFT
IN MEMBERSHIP, ALLEGED TO HAVE OCCURRED SUBSEQUENT TO LORILLARD'S
UNFAIR LABOR PRACTICE.  BUT IT HAD REACHED THE CONCLUSION THAT, IN
ORDER TO EFFECTUATE THE POLICIES OF THE ACT, LORILLARD MUST REMEDY THE
EFFECT OF ITS PRIOR UNLAWFUL REFUSAL TO BARGAIN BY BARGAINING WITH THE
UNION SHOWN TO HAVE HAD A MAJORITY ON THE DATE OF LORILLARD'S REFUSAL
TO BARGAIN.  THIS WAS FOR THE BOARD TO DETERMINE, AND THE COURT BELOW
WAS IN ERROR IN MODIFYING THE BOARD'S ORDER IN THIS RESPECT.  LABOR
BOARD V. BRADFORD DYEING ASSN., 310 U.S. 318, 339-340; I.A. OF M. V.
LABOR BOARD, 311 U.S. 72, 82.  SEE ALSO LABOR BOARD V. FALK CORP., 308
U.S. 453, 458-459.  THE JUDGMENT OF THE COURT BELOW IS REVERSED WITH
DIRECTIONS TO ENFORCE THE ORDER OF THE BOARD.  REVERSED. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






















UNITED STATES V. RAGEN, 314 U.S. 513 


NO. 54.  ARGUED DECEMBER 11, 1941.  - DECIDED JANUARY 5, 1942.  - 118
F.2D 128, REVERSED. 


1.  THE CRIME OF WILLFULLY ATTEMPTING TO EVADE OR DEFEAT INCOME TAXES
(REV. ACTS 1932, 1934, 1936, SEC. 145), IS COMMITTED WHERE THE MEMBERS
OF A CORPORATION, SCHEMING TO REDUCE OR EVADE ITS INCOME TAXES, CAUSE
DISTRIBUTIONS OF ITS FUNDS TO BE MADE TO ITS SHAREHOLDERS IN THE GUISE
OF COMMISSIONS AND CAUSE THE AMOUNTS SO DISTRIBUTED TO BE DEDUCTED IN
THE CORPORATION'S INCOME TAX REPORTS FROM ITS GROSS INCOME AS
REASONABLE ALLOWANCES FOR PERSONAL SERVICES, KNOWING THAT THE AMOUNTS
ARE IN EXCESS OF REASONABLE COMPENSATION FOR ANY SERVICES RENDERED BY
THE RECIPIENTS TO THE CORPORATION.  P. 522. 

2.  THE MERE FACT THAT A PENAL STATUTE IS SO FRAMED AS TO REQUIRE A
JURY UPON OCCASION TO DETERMINE A QUESTION OF REASONABLENESS DOES NOT
MAKE IT TOO VAGUE TO AFFORD A PRACTICAL GUIDE TO PERMISSIBLE CONDUCT. 
UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81, AND OTHER CASES,
DISTINGUISHED.  P. 523. 

3.  THERE WAS SUFFICIENT EVIDENCE IN THIS CASE TO SUPPORT A FINDING
BY THE JURY THAT THE RESPONDENTS WILLFULLY ATTEMPTED TO MAKE
UNREASONABLE ALLOWANCES FOR PERSONAL SERVICES, IN REPORTING THE NET
INCOME OF THE CORPORATION.  P. 524. 

4.  WHERE A COUNT OF THE INDICTMENT ALLEGED THAT MONEYS OF A
CORPORATION, DISTRIBUTED TO ITS SHAREHOLDERS AS "COMMISSIONS" AND
DEDUCTED IN ITS INCOME TAX RETURNS AS REASONABLE EXPENSES FOR SERVICES
TO THE CORPORATION, WERE DIVIDENDS IN THEIR ENTIRETY, BUT THE PROOF
INDICATED THAT SOME SERVICES TO THE CORPORATION WERE PERFORMED BY THE
RECIPIENTS, THE VARIANCE WAS NOT FATAL, SINCE IT RELATED AT MOST TO THE
EXTENT OF THE ALLEGED TAX EVASION AND INVOLVED NO ELEMENT OF SURPRISE
PREJUDICIAL TO THE DEFENSE.  P. 526. 

UNITED STATES V. RAGEN.* 

*TOGETHER WITH NO. 55, UNITED STATES V. ARNOLD W. KRUSE, AND NO. 56,
UNITED STATES V. LESTER A. KRUSE, ALSO ON WRITS OF CERTIORARI, 313 U.S.
557, TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 313 U.S. 557, TO REVIEW THE REVERSAL OF JUDGMENTS UPON
CONVICTIONS FOR CONSPIRACY TO VIOLATE, AND FOR VIOLATIONS OF, A
PROVISION IN SEVERAL REVENUE ACTS MAKING CRIMINAL A WILLFUL ATTEMPT TO
EVADE OR DEFEAT ANY TAX. 

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A VERDICT OF GUILTY. 

COMMISSIONS OR PERCENTAGES OF NET PROFITS OF A CORPORATION PAID FOR
SERVICES RENDERED ARE DEDUCTIBLE IN COMPUTING TAXABLE INCOME. 

THE FIFTH COUNT CHARGES THAT NO SERVICES WERE RENDERED; BUT THE
EVIDENCE SHOWS THAT SERVICES WERE RENDERED.  THE CHARGE WAS NOT PROVED
AS ALLEGED, AND A VERDICT SHOULD HAVE BEEN DIRECTED. 

THERE WAS NO SHOWING AS TO THE TOTAL OF ALL SERVICES RENDERED OR AS
TO THEIR REASONABLE VALUE.  EVEN IF THE QUESTION OF COMPENSATION WERE
AN ISSUE IN THE CASE, A VERDICT SHOULD HAVE BEEN DIRECTED, BECAUSE THE
EVIDENCE WAS INSUFFICIENT TO WARRANT THE SUBMISSION OF THAT QUESTION TO
A JURY. 

TO BE A PARTY TO A CONSPIRACY, GUILTY KNOWLEDGE IS ESSENTIAL.  THE
DOING OF SOME ACT IN FURTHERANCE OF THE OBJECT OF THE CONSPIRACY IS NOT
ENOUGH. 

IN A PROSECUTION FOR A WILFUL ATTEMPT TO DEFEAT AND EVADE TAXES, IT
IS NOT SUFFICIENT TO SHOW MERELY THAT A LESSER TAX WAS PAID THAN WAS
DUE.  IT IS ESSENTIAL TO PROVE THAT THE ACTS COMPLAINED OF WERE
WILFULLY DONE IN BAD FAITH AND WITH INTENT TO EVADE AND DEFEAT THE
TAX. 

THE QUESTION WHETHER THERE IS A SUFFICIENTLY DEFINITE STANDARD OF
GUILT, IF DEFENDANTS RENDERED ANY SERVICES TO THE CORPORATION, IS
RAISED HERE FOR THE FIRST TIME.  IN THE COURTS BELOW, THE GOVERNMENT
CONTENDED THAT THIS QUESTION WAS IRRELEVANT.  THE GOVERNMENT SHOULD NOT
BE PERMITTED TO SHIFT ITS POSITION. 

TO PERMIT A CONVICTION TO REST UPON THE DETERMINATION BY A JURY OF
THE REASONABLENESS OF THE COMPENSATION PAID FOR SERVICES RENDERED,
WITHOUT A DEFINITE STANDARD FOR DETERMINATION OF THAT QUESTION,
PRESCRIBED BY STATUTE OR REGULATION, WOULD BE CONTRARY TO THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT, AND TO THE PROVISION OF THE
SIXTH AMENDMENT THAT IN ALL CRIMINAL PROSECUTIONS THE ACCUSED SHALL
ENJOY THE RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION.  UNITED STATES V. COHEN GROCERY CO., 255 U.S. 81, 89;
CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, 391; COLLINS V.
KENTUCKY, 234 U.S. 634, 638; INTERNATIONAL HARVESTER CO. V. KENTUCKY,
234 U.S. 216, 221; AMERICAN MACHINE CO. V. KENTUCKY, 236 U.S. 660, 661;
UNITED STATES V. PENNSYLVANIA R. CO., 242 U.S. 208, 237; SMITH V.
CAHOON, 283 U.S. 553, 564; SMALL CO. V. AMERICAN REFINING CO., 267 U.S.
233, 238; CHAMPLIN REFINING CO. V. COMMISSION, 286 U.S. 210, 242;
HERNDON V. LOWRY, 301 U.S. 242, 262-264; LANZETTA V. NEW JERSEY, 306
U.S. 451, 453.  DISTINGUISHING GORIN V. UNITED STATES, 312 U.S. 19. 
SEE, ALSO, OMAECHEVARRIA V. IDAHO, 246 U.S. 343, 348; HYGRADE
PROVISIONS CO. V. SHERMAN, 266 U.S. 497, 501.  DISTINGUISHING TINKOFF
V. UNITED STATES, 86 F.2D 868; UNITED STATES V. KELLEY, 105 F.2D 912;
UNITED STATES V. ZIMMERMAN, 108 F.2D 370, AND WAGNER V. UNITED STATES,
118 F.2D 801. 

THE GOVERNMENT'S EVIDENCE ESTABLISHED THAT THE COMMISSIONS WERE PAID
FOR SERVICES RENDERED, AND NO EVIDENCE WAS OFFERED TO SHOW THAT THE
PAYMENTS WERE UNREASONABLE. 

THE CASE WAS SUBMITTED TO THE JURY ON THE THEORY THAT THE ISSUE WAS
WHETHER THE DEDUCTIONS OF THE COMMISSIONS WERE EITHER PROPER OR
IMPROPER IN THEIR ENTIRETY.  THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE
JURY THAT THEY COULD CONVICT THE DEFENDANTS IF THEY FOUND ONLY THAT A
SUBSTANTIAL PORTION OF THE DEDUCTIONS WAS IMPROPER.  THERE WAS NO
EVIDENCE IN THE RECORD TO SUPPORT SUCH A FINDING OR INSTRUCTION. 

THE FACTUAL AND ULTIMATE LEGAL CONCLUSIONS OF THE CIRCUIT COURT OF
APPEALS ARE SUBSTANTIATED BY THE RECORD. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR DEFEAT ANY TAX IMPOSED BY
THIS TITLE OR THE PAYMENT THEREOF, SHALL, IN ADDITION TO OTHER
PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY  ...  " 47 STAT. 217. 
(THERE ARE IDENTICAL PROVISIONS IN THE REVENUE ACTS OF 1934 AND 1936. 
48 STAT. 725; 49 STAT. 1703.)  PETITIONERS WERE INDICTED, TRIED, AND
CONVICTED IN THE DISTRICT COURT FOR CONSPIRACY TO VIOLATE, AND FOR
VIOLATION OF, THIS PROVISION.  THE CIRCUIT COURT OF APPEALS, ONE JUDGE
DISSENTING, REVERSED.  UNITED STATES V. MOLASKY, 118 F.2D 128.  BECAUSE
QUESTIONS OF IMPORTANCE IN THE ENFORCEMENT OF THIS CRIMINAL STATUTE AND
THE ADMINISTRATION OF THE REVENUE LAWS WERE RAISED, WE GRANTED
CERTIORARI.  313 U.S. 557. 

IN COMPUTING NET CORPORATE INCOME SUBJECT TO TAX, A DEDUCTION IS
PERMITTED FOR "ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED
DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS, INCLUDING
A REASONABLE ALLOWANCE FOR SALARIES OR OTHER COMPENSATION FOR PERSONAL
SERVICES ACTUALLY RENDERED  ...  " SEC. 23(A), REVENUE ACTS OF 1932,
1934, AND 1936.  47 STAT. 179; 48 STAT. 688; 49 STAT. 1658. 
"DIVIDENDS" DISTRIBUTED FROM NET CORPORATE PROFITS ARE NOT ALLOWABLE
DEDUCTIONS.  BUT "COMMISSIONS," IF INCURRED AS NECESSARY BUSINESS
EXPENSES AND AS A REASONABLE ALLOWANCE FOR PERSONAL SERVICES ACTUALLY
RENDERED, ARE DEDUCTIBLE FROM GROSS INCOME.  THE LARGER THE ALLOWABLE
DEDUCTION THE SMALLER ARE THE NET TAXABLE INCOME AND THE TAX IMPOSED. 
THE FIRST FOUR COUNTS OF THE INDICTMENT SET OUT ATTEMPTS BY THE
DEFENDANTS TO EVADE INCOME TAXES OF THE CONSENSUS PUBLISHING COMPANY
FOR THE YEARS 1933 TO 1936, THROUGH A FRAUDULENT SCHEME WHEREBY, UNDER
THE GUISE OF PAYING COMMISSIONS WHICH WERE DEDUCTED FROM GROSS INCOME,
THE CORPORATION DISTRIBUTED DIVIDENDS DEDUCTION OF WHICH THE STATUTE
DOES NOT PERMIT.  THE FIFTH COUNT SETS OUT A CONSPIRACY TO ACCOMPLISH
SIMILAR RESULTS FOR THE YEARS 1929 TO 1936. 

AFTER AN EXAMINATION OF THE EVIDENCE IN THE RECORD, INCLUDING
NUMEROUS EXHIBITS, WE ARE SATISFIED THAT THE JURY COULD JUSTIFIABLY
HAVE FOUND THE FOLLOWING FACTS TO BE TRUE: 

THE CONSENSUS PUBLISHING COMPANY, AN ILLINOIS CORPORATION, WAS
ORGANIZED IN 1929 TO CARRY ON THE BUSINESS OF PREPARING "RUN-DOWN"
SHEETS, DAILY BULLETINS CONTAINING INFORMATION ON HORSE RACING, AND
SELLING THEM TO BOOKMAKERS.  THE ORIGINAL STOCK OWNERSHIP WAS
DISTRIBUTED AMONG ARNOLD KRUSE (20 SHARES), JAMES RAGEN, SR. (20
SHARES), WILLIAM MOLASKY (30 SHARES), AND CECELIA INVESTMENT COMPANY
(30 SHARES), A HOLDING COMPANY CONTROLLED BY MOSES ANNENBERG, THE
DOMINANT FIGURE IN SEVERAL OTHER CORPORATIONS WHICH WERE ENGAGED IN
ENTERPRISES CONNECTED WITH BETTING ON HORSE RACES.  KRUSE AND RAGEN
WERE EXECUTIVES IN OTHER ANNENBERG COMPANIES.  MOLASKY ALONE LIVED IN
ST. LOUIS, WHERE CONSENSUS CONDUCTED ITS PRINCIPAL BUSINESS OPERATIONS,
BUT HE DELEGATED TO ONE GORDON BROOKS, AN EMPLOYEE OF ANOTHER
CORPORATION OWNED BY MOLASKY, THE JOB OF COLLECTING RECEIPTS, PREPARING
RECORDS AND REPORTS, AND SUPERVISING PRINTING FOR CONSENSUS, - WORK
WHICH TOOK BROOKS AN HOUR-AND-A-HALF A DAY ON THE AVERAGE, EXCEPT FOR
THE ONE DAY EACH WEEK WHEN THE PREPARATION OF OPERATING REPORTS FOR THE
CHICAGO OFFICE REQUIRED ABOUT THREE HOURS. 

FOR SEVERAL YEARS CONSENSUS MADE A WEEKLY DISTRIBUTION OF MONEY TO
ITS SHAREHOLDERS IN DIRECT PROPORTION TO THEIR HOLDINGS.  IN THE PERIOD
COVERED BY THE INDICTMENT, ONLY THE 30% OF THE DISTRIBUTION GOING TO
CECELIA INVESTMENT COMPANY WAS TREATED AS DIVIDENDS IN CONSENSUS' TAX
RETURNS.  THE REMAINING 70%, ALTHOUGH REFERRED TO IN SOME OF THE
CORPORATION'S CONFIDENTIAL WEEKLY REPORTS TO STOCKHOLDERS DURING THE
PERIOD AS "DIVIDENDS," WAS NEVERTHELESS IN ITS INCOME TAX RETURN
DEDUCTED FROM GROSS INCOME AS "COMMISSIONS."  THE DEDUCTIONS THUS
CLAIMED WERE $10,761 IN 1929, $62,961 IN 1930, $64,791 IN 1931, $57,255
IN 1932, $54,538 IN 1933, $60,172 IN 1934, $76,714 IN 1935, AND
$119,756 IN 1936.  THE BOOKKEEPING SYSTEM, UNDER WHICH 70% OF THE FUNDS
REMAINING AFTER PAYMENT OF EXPENSES WAS CHARGED AS COMMISSIONS, WAS SET
UP IN 1929 IN ACCORDANCE WITH INSTRUCTIONS FROM ARNOLD KRUSE. 

IN 1934, KRUSE, HAVING LEARNED OF A DECISION OF THE BOARD OF TAX
APPEALS THAT DISTRIBUTIONS OF PROFITS AS COMMISSIONS WOULD NOT BE
ALLOWED AS A DEDUCTIBLE EXPENSE IF MADE IN ACCORDANCE WITH
STOCKHOLDINGS, SET IN MOTION A SERIES OF TRANSACTIONS RETROACTIVELY
MODIFYING THE RELATIONSHIP BETWEEN CONSENSUS AND ITS STOCKHOLDERS.  HE
DIRECTED AN EMPLOYEE TO DESTROY THE ORIGINAL STOCK BOOK OF THE COMPANY,
ISSUE NEW STOCK CERTIFICATES BEARING THE DATE OF INCORPORATION
(SEPTEMBER 18, 1929), AND THEN IMMEDIATELY TO CANCEL THE NEW
CERTIFICATES AND ISSUE A SINGLE CERTIFICATE FOR ONE HUNDRED SHARES TO
THE CECELIA INVESTMENT COMPANY.  IN 1935 OR 1936, KRUSE ORDERED THE
DRAWING UP OF WRITTEN YEARLY CONTRACTS OF EMPLOYMENT FOR THE SEVERAL
YEARS FROM 1930 ON BETWEEN CONSENSUS AND THE INDIVIDUALS TO WHOM
"COMMISSION" PAYMENTS HAD SINCE THE INCEPTION OF THE COMPANY BEEN
MADE.  IN EACH CONTRACT, THE COMPENSATION WAS TO CORRESPOND IDENTICALLY
WITH THE AMOUNT THAT HAD ALREADY ACTUALLY BEEN PAID. 

EXCEPT FOR DELAYS IN DESTROYING THE ORIGINAL STOCK BOOK AND THE
ORIGINAL STOCK CERTIFICATES, THIS PLAN WAS PROMPTLY CARRIED OUT. 
MOREOVER, CORPORATE MINUTES WERE DRAWN UP, APPROPRIATELY BACK DATED,
WHICH SET OUT THE STOCK "ISSUE" AND THE EMPLOYMENT CONTRACTS AS IF THEY
WERE ACTUAL EVENTS CONTEMPORANEOUS WITH THE FALSE DATES OF RECORDING. 

AMONG THE BACK-DATED CONTRACTS WERE SEVERAL BETWEEN CONSENSUS AND THE
RESPONDENT LESTER KRUSE, SON OF ARNOLD.  THESE TOGETHER WITH A BACK
DATED ASSIGNMENT BY ARNOLD TO LESTER OF HIS "CONTRACT OF EMPLOYMENT"
WITH CONSENSUS WERE TO AFFORD OSTENSIBLE DOCUMENTATION OF A SHIFT TO
LESTER, AFTER MARCH, 1933, OF THE SHARE THAT HAD FORMERLY GONE TO
ARNOLD.  FN1  SIMILARLY, AFTER 1931, CONSENSUS PAID THE SHARE THAT HAD
FORMERLY GONE TO RAGEN TO RAGEN'S SON.  HERE, TOO, A SET OF BACK-DATED
PAPERS DOCUMENTING THE SHIFT WAS FABRICATED.  AFTER THEIR SONS BECAME
THE NOMINAL RECIPIENTS OF COMMISSIONS, KRUSE AND RAGEN CONTINUED TO BE
CONNECTED WITH THE AFFAIRS OF CONSENSUS.  KRUSE, FOR EXAMPLE, DIRECTED
THE CREATION OF THE SPURIOUS PAPERS AND RECORDS ALREADY DESCRIBED, AND
RAGEN FROM TIME TO TIME, AT LEAST UNTIL 1935, SIGNED "COMMISSION"
CHECKS OF CONSENSUS WHICH WERE PAID IN REGULAR COURSE.  FN2 

IF, FROM THE FOREGOING AND OTHER SUPPORTING EVIDENCE IN THE RECORD,
THE JURY COULD HAVE FOUND THAT ANY ONE OF THE DEFENDANTS HAD, WITH THE
INTENTIONAL COOPERATION OF THE OTHERS, RECEIVED "COMMISSIONS" WITHOUT
RENDERING ANY SERVICES WHATSOEVER, IT WOULD HAVE BEEN POSSIBLE FOR THE
TRIAL JUDGE TO HAVE SUBMITTED THE CASE TO THE JURY WITHOUT CALLING UPON
IT TO DECIDE ANY QUESTIONS OF REASONABLENESS OF COMPENSATION FOR
SERVICES ACTUALLY RENDERED.  IF, HOWEVER, EACH DEFENDANT HAD PERFORMED
SOME SERVICE FOR THE CORPORATION, THE JURY WOULD HAVE HAD TO CONSIDER
WHETHER OR NOT THE "COMMISSIONS" HAD INTENTIONALLY BEEN MADE EXCESSIVE
SO THAT A PORTION OF PAYMENTS MADE IN THE GUISE OF MEETING EXPENSES
ACTUALLY CONSTITUTED A DISTRIBUTION OF DIVIDENDS.  THERE WAS EVIDENCE
WHICH, IF BELIEVED, TENDED TO ESTABLISH THAT EACH DEFENDANT HAD
PERFORMED SOME SERVICE, ALTHOUGH OF AN IRREGULAR AND UNDEFINED NATURE. 
HENCE, IT SEEMS TO US ENTIRELY PROPER FOR THE TRIAL JUDGE TO HAVE
SUBMITTED THE CASE TO THE JURY WITH A CHARGE NOT NECESSARILY CALLING
FOR A DETERMINATION OF WHETHER ALL OR NONE OF THE "COMMISSIONS" PAID TO
EACH DEFENDANT WERE DIVIDENDS, BUT PERMITTING A DETERMINATION OF
WHETHER THE "COMMISSIONS" WERE INTENTIONALLY MADE TO INCLUDE
SUBSTANTIAL AMOUNTS WHICH SHOULD HAVE BEEN TREATED AS DIVIDENDS.  UPON
SUCH A CHARGE,  FN3  THE JURY FOUND ARNOLD KRUSE AND RAGEN GUILTY ON
ALL FIVE COUNTS, AND LESTER KRUSE GUILTY ON COUNTS FOUR AND FIVEN4. 

IN THE CHARGE AS GIVEN, THE CIRCUIT COURT OF APPEALS FOUND REVERSIBLE
ERROR.  THE GIST OF THE COURT'S ARGUMENT IS CONTAINED IN THE FOLLOWING
EXCERPT FROM THE OPINION: 

"WE HAVE REACHED THE CONCLUSION THAT WHERE A STATUTE PERMITS A
REASONABLE DEDUCTION FOR SERVICES, A CRIMINAL PROSECUTION CAN NOT BE
MAINTAINED BY PROOF OTHER THAN THAT SUCH SERVICES WERE NOT RENDERED. 
IT IS NOT SUFFICIENT TO ALLEGE OR PROVE THAT A DEDUCTION CLAIMED FOR
SERVICES IS UNLAWFUL BECAUSE THE AMOUNT CHARGED IS UNREASONABLE.  SUCH
A CHARGE WOULD LEAVE TO THE TRIER OF THE FACTS THE RESPONSIBILITY FOR
FIXING THE STANDARD BY WHICH A DEFENDANT'S GUILT WOULD BE DETERMINED. 
THE STANDARD WOULD VARY ACCORDING TO THE VIEWS OF DIFFERENT COURTS AND
JURIES.  SUCH A THEORY WOULD BE VIOLATIVE OF THE DEFENDANT'S
CONSTITUTIONAL RIGHTS, AND VOID.  UNITED STATES V. L. COHEN GROCERY
CO., 255 U.S. 81  ...  ; INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234
U.S. 216, 221  ... ; COLLINS V. KENTUCKY, 234 U.S. 634, 638  ...  "
FN5 

DETERMINATION OF ALLOWABLE DEDUCTIONS BY REFERENCE TO A STANDARD OF
"REASONABLENESS" IS NOT UNUSUAL UNDER FEDERAL INCOME TAX LAWS. FOR
EXAMPLE, THE DEDUCTIONS ALLOWED FOR DEPRECIATION AND OBSOLESCENCE, FOR
BAD DEBTS, AND FOR ORDINARY AND NECESSARY BUSINESS EXPENSES (OTHER THAN
COMPENSATION FOR SERVICES) ARE DESIGNATED IN THE INTERNAL REVENUE CODE
AS "REASONABLE."  53 STAT. 1, SECS. 23(1), 23(K)(1), 23(A)(1).  IF, AS
THE OPINION BELOW SUGGESTS, THE ONLY QUESTION THAT CAN PROPERLY BE
SUBMITTED TO THE JURY IS WHETHER THE ENTIRE DEDUCTION IS FABRICATED, AN
UNCONSCIONABLE TAXPAYER CAN IMMUNIZE HIMSELF FROM THE CRIMINAL
SANCTIONS FOR TAX EVASION BY THE SIMPLEST OF EXPEDIENTS.  HE NEED ONLY
FIND A LEGITIMATE ITEM OF DEDUCTION AND THEN PAD IT AS MUCH AS HIS
PURPOSE REQUIRES.  BY TRANSFORMING THE QUESTION "SHOULD ANY DEDUCTION
HAVE BEEN MADE?"  INTO "WAS THE DEDUCTION MADE IN EXCESS OF A
REASONABLE ALLOWANCE?"  HE CAN, IF THE THEORY ACCEPTED BELOW BE
CORRECT, LARGELY DESTROY THE DETERRENT EFFECT OF A PENAL STATUTE PASSED
BY CONGRESS. 

WE HAVE CONCLUDED, HOWEVER, THAT THE GROUND OF DECISION BELOW IS
UNTENABLE.  THE MERE FACT THAT A PENAL STATUTE IS SO FRAMED AS TO
REQUIRE A JURY UPON OCCASION TO DETERMINE A QUESTION OF REASONABLENESS
IS NOT SUFFICIENT TO MAKE IT TOO VAGUE TO AFFORD A PRACTICAL GUIDE TO
PERMISSIBLE CONDUCT.  CF. NASH V. UNITED STATES, 229 U.S. 373.  THE
CASES CITED BY THE COURT OF APPEALS AFFIRM NO SUCH PROPOSITION.  IN THE
COHEN GROCERY CASE, THIS COURT HELD A CONVICTION UNDER SEC. 4 OF THE
LEVER ACT, 41 STAT. 297, 298, UNCONSTITUTIONAL BECAUSE THE STATUTE LEFT
OPEN "THE WIDEST CONCEIVABLE INQUIRY, THE SCOPE OF WHICH NO ONE CAN
FORESEE AND THE RESULT OF WHICH NO ONE CAN FORESHADOW OR ADEQUATELY
GUARD AGAINST," AND BECAUSE AN "ATTEMPT TO ENFORCE THE SECTION WOULD BE
THE EXACT EQUIVALENT OF AN EFFORT TO CARRY OUT A STATUTE WHICH IN TERMS
MERELY PENALIZED AND PUNISHED ALL ACTS DETRIMENTAL TO THE PUBLIC
INTEREST WHEN UNJUST AND UNREASONABLE IN THE ESTIMATION OF THE COURT
AND JURY."  UNITED STATES V. COHEN GROCERY CO., SUPRA, 89.  IN THE
INTERNATIONAL HARVESTER CASE, THIS COURT EXPRESSED THE VIEW THAT
ASSURANCE THAT THE STATE STATUTE THERE IN ISSUE WAS COMPLIED WITH
CALLED FOR "GIFTS THAT MANKIND DOES NOT POSSESS."  INTERNATIONAL
HARVESTER CO. V. KENTUCKY, SUPRA, 224.  AND IN THE COLLINS CASE, THE
SAME STATUTE WAS SAID TO CALL FOR A DETERMINATION OF CONDUCT "NOT
ACCORDING TO THE ACTUALITIES OF LIFE, OR BY REFERENCE TO KNOWABLE
CRITERIA, BUT BY SPECULATING UPON IMAGINARY CONDITIONS."  COLLINS V.
KENTUCKY, SUPRA, 638. 

NO SUCH UNWORKABLE STANDARDS ARE INVOLVED HERE.  SECTION 145 OF THE
REVENUE ACT OF 1932, STANDING ALONE, IS NOT VAGUE NOR DOES IT DELEGATE
POLICY-MAKING POWERS TO EITHER COURT OR JURY.  IT DECLARES THAT "ANY
PERSON WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR DEFEAT ANY TAX
IMPOSED" BY THE ACT "SHALL  ...  BE GUILTY OF A FELONY" AND SPECIFIES
PENALTIES IN ADDITION TO THOSE OTHERWISE PROVIDED BY LAW.  THAT SUCH
ACTS OF BAD FAITH ARE NOT BEYOND THE READY COMPREHENSION EITHER OF
PERSONS AFFECTED BY THE ACT OR OF JURIES CALLED UPON TO DETERMINE
VIOLATIONS NEED NOT BE ELABORATED.  NOR DOES THE PARTICULAR MODE OF
EVASION HERE ALLEGED, INTENTIONAL DEDUCTION OF DIVIDENDS IN THE GUISE
OF COMPENSATION FOR PERSONAL SERVICES, SO TRANSFORM THE NATURE OF THE
OFFENSE AS TO MAKE THE ACTORS LESS AWARE THAT THEY ARE COMMITTING IT OR
JURIES LESS COMPETENT TO DETECT IT.  THE STATUTORY SPECIFICATION OF
PERMISSIBLE DEDUCTION HERE IN QUESTION IS OF LONG STANDING.  FOR YEARS,
THOUSANDS OF CORPORATIONS HAVE FILED INCOME TAX RETURNS IN ACCORDANCE
WITH THE DIRECTION TO DEDUCT "A REASONABLE ALLOWANCE FOR SALARIES OR
OTHER COMPENSATION FOR PERSONAL SERVICE ACTUALLY RENDERED," AND THERE
HAS NOT BEEN ANY APPARENT GENERAL CONFUSION BESPEAKING INADEQUATE
STATUTORY GUIDANCE.  A FINDING OF UNCONSTITUTIONAL UNCERTAINTY IN THIS
AND COMMON SENSE. 

ON NO CONSTRUCTION CAN THE STATUTORY PROVISIONS HERE INVOLVED BECOME
A TRAP FOR THOSE WHO ACT IN GOOD FAITH.  A MIND INTENT UPON WILLFUL
EVASION IS INCONSISTENT WITH SURPRISED INNOCENCE.  CF. GORIN V. UNITED
STATES, 312 U.S. 19; HYGRADE PROVISION CO. V. SHERMAN, 266 U.S. 497;
OMAECHEVARRIA V. IDAHO, 246 U.S. 343.  AND THE CHARGE GIVEN BY THE
TRIAL COURT AMPLY INSTRUCTED THE JURY THAT SCIENTER IS AN ESSENTIAL
ELEMENT OF THE OFFENSE. 

WE CONCLUDE THAT IT WAS NOT ERROR TO SUBMIT TO THE JURY THE QUESTION
OF WHETHER OR NOT THE RESPONDENTS ATTEMPTED TO MAKE UNREASONABLE
ALLOWANCES FOR PERSONAL SERVICES.  THE RESPONDENTS, HOWEVER, RAISE A
FURTHER OBJECTION GOING NOT TO THE PROPRIETY OF SUCH A SUBMISSION AS A
MATTER OF LAW, BUT TO THE INSUFFICIENCY OF THE EVIDENCE UPON WHICH THE
JURY COULD HAVE FOUND AN ANSWER TO THE QUESTION SUBMITTED.  THEY
CONTEND THAT THE RECORD DISCLOSES THAT THE RECIPIENTS OF COMMISSIONS
PERFORMED SOME SERVICES; THAT THE RECORD FAILS TO SHOW THAT THE
SERVICES DISCLOSED WERE THE ONLY SERVICES RENDERED; THAT THERE WAS NO
DIRECT TESTIMONY AS TO THE TOTAL AMOUNT OF SERVICES RENDERED OR THE
REASONABLE VALUE THEREOF; AND THAT, THEREFORE, THE JURY HAD NO RATIONAL
BASIS UPON WHICH TO CONCLUDE THAT THE SUMS DEDUCTED AS "COMMISSIONS"
WERE MORE THAN A REASONABLE ALLOWANCE FOR COMPENSATION FOR THE SERVICES
RENDERED.  WE MUST REJECT THIS CONTENTION. 

THE BUSINESS CONDUCTED BY CONSENSUS, A BUSINESS WHICH, ACCORDING TO
THE TESTIMONY OF A PERSON WHO WAS IN IMMEDIATE CHARGE OF ITS MAJOR
OPERATIONS, NORMALLY REQUIRED ONLY AN HOUR AND A HALF DAILY OF
MANAGERIAL SUPERVISION, WOULD HARDLY SEEM TO CALL FOR ADDITIONAL
EXECUTIVE SERVICES WORTH WHAT CONSENSUS PAID IN "COMMISSIONS."  THE
SAME WITNESS TESTIFIED THAT HE HAD NEVER SEEN SOME OF THE RECIPIENTS OF
"COMMISSIONS," AND THAT HIS ONLY CONTACT WITH ONE OF THEM WAS TWO
TELEPHONE CONVERSATIONS.  THIS TESTIMONY, TOO, BELIES PARTICIPATION BY
THE RESPONDENTS IN THE BUSINESS ACTIVITIES OF CONSENSUS TO A DEGREE
JUSTIFYING PAYMENT OF THE HIGH "COMMISSIONS" - EQUAL ON THE AVERAGE TO
ABOUT HALF OF GROSS REVENUES AND AMOUNTING EACH YEAR TO SEVERAL TIMES
ALL OTHER WAGES AND SALARIES  FN6  - AS A QUID PRO QUO FOR THEIR
SERVICES.  MOREOVER, THERE IS THE ADDITIONAL CIRCUMSTANCE, DAMAGING TO
THE RESPONDENTS' CONTENTION THAT, YEAR IN AND YEAR OUT, 30% OF EARNINGS
AFTER DEDUCTION OF EXPENSES WAS PAID TO THE CECELIA INVESTMENT COMPANY
AS DIVIDENDS, AND 70% TO THE RESPONDENTS OR OTHER INDIVIDUALS AS
"COMMISSIONS."  THIS UNIFORMITY IN THE COMPUTATION OF "COMPENSATION" IS
DIFFICULT TO RECONCILE WITH THE VARIATIONS IN EXTENT AND KIND OF
PERSONAL SERVICES WHICH ONE WOULD EXPECT TO FIND IN ACCOUNTS REFLECTING
BONA FIDE ALLOWANCES FOR PERSONAL SERVICES.  FURTHER, THERE IS THE
CIRCUMSTANCE THAT THE "COMMISSION" PAYMENTS WERE ALWAYS IN PROPORTION
TO ORIGINAL STOCK HOLDINGS.  AND DARKENING THE WHOLE PICTURE IS THE
ATMOSPHERE OF PURPOSEFUL CONCEALMENT EVINCED BY THE DESTRUCTION OF SOME
IMPORTANT CORPORATE PAPERS AND THE FABRICATION OF OTHERS.  WE ARE
CONVINCED THAT ALL OF THIS IS SUFFICIENT TO SUPPORT A FINDING BY THE
JURY THAT THE RESPONDENTS WILLFULLY ATTEMPTED TO MAKE UNREASONABLE
ALLOWANCES FOR PERSONAL SERVICES. 

THE RESPONDENTS ALSO URGE THAT THERE WAS A FATAL VARIANCE BETWEEN THE
INDICTMENT AND THE PROOF, IN THAT THE INDICTMENT ALLEGES THAT THE
COMMISSION PAYMENTS WERE ACTUALLY DIVIDENDS IN THEIR ENTIRETY, WHEREAS
THE EVIDENCE INDICATES THAT SOME SERVICES WERE PERFORMED.  THE FIFTH
COUNT OF THE INDICTMENT DOES REFER TO "ALL OF THE MONEYS  ...  PAID
...  BY VIRTUE OF THE  ...  SO-CALLED 'EMPLOYMENT CONTRACTS'" AS "IN
TRUTH AND IN FACT, DISTRIBUTIONS OF PROFITS AND DIVIDENDS."  BUT THE
GRAVAMEN OF THE CHARGE IS DISTRIBUTION OF DIVIDENDS IN THE GUISE OF
COMMISSIONS, AND THE RESPONDENTS CANNOT FAIRLY CLAIM THAT THEY WERE NOT
ADEQUATELY APPRISED OF THE NATURE OF THE OFFENSE.  ANY VARIANCE WHICH
EXISTED, AT MOST A MATTER OF THE EXTENT OF THE ALLEGED TAX EVASION,
INVOLVES NO ELEMENTS OF SURPRISE PREJUDICIAL TO THE RESPONDENTS'
EFFORTS TO PREPARE THEIR DEFENSE.  CF. BERGER V. UNITED STATES, 295
U.S. 78; BENNETT V. UNITED STATES, 227 U.S. 333. 

THE RESPONDENTS HAVE MADE FURTHER CONTENTIONS WHICH WE CONCLUDE,
AFTER CONSIDERATION, ARE WITHOUT MERIT. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  OR TO HIS WIFE.  FROM AUGUST, 1932, TO MARCH, 1933, CONSENSUS
DISTRIBUTED 20% OF ITS EARNINGS TO MRS. ARNOLD KRUSE.  NO EXPLANATION
IS APPARENT IN THE RECORD. 

FN2  BECAUSE OF THIS AND OTHER CIRCUMSTANCES SHOWING RAGEN'S
CONTINUED PARTICIPATION IN THE AFFAIRS OF CONSENSUS, WE CONCLUDE THAT
THE ARGUMENT, SEPARATELY MADE ON HIS BEHALF, THAT THERE WAS
INSUFFICIENT EVIDENCE TO ESTABLISH HIS CONNECTION WITH ANY SCHEME TO
EVADE TAXES, IS WITHOUT MERIT. 

FN3  THE CRUCIAL PORTIONS OF THE DISTRICT JUDGE'S CHARGE TO THE JURY
ARE AS FOLLOWS: 

"IF THESE SUMS DISTRIBUTED WERE DISTRIBUTED AS A PART OF THE PROFITS
OF THE CORPORATION, THEN THEY SHOULD HAVE BEEN ACCOUNTED FOR IN THE
INCOME TAX REPORT OF THE CONSENSUS COMPANY AS PROFITS AND UPON THAT THE
CORPORATION SHOULD HAVE PAID A TAX, WHICH IT DID NOT. 

"IF, ON THE OTHER HAND, THEY WERE INTENDED TO AND REPRESENTED ACTUAL
BONA FIDE COMPENSATION TO EMPLOYES OF THIS CORPORATION IN THE ORDINARY
OPERATION OF ITS BUSINESS; IN OTHER WORDS, IF THEY WERE ORDINARY AND
NECESSARY EXPENSES OF THE OPERATION OF THE BUSINESS, THEN THEY WERE
PROPERLY DEDUCTIBLE AS THEY WERE DEDUCTED AND NO TAX WAS DUE UPON
THEM. 

     .         .         .         .         . 

WE ARE CONCERNED ONLY WITH THE QUESTION OF WHETHER THESE MEN HAVE
ENTERED INTO A CONSPIRACY, INTO A SCHEME WHEREBY AS A RESULT THIS
CORPORATION, THE CONSENSUS COMPANY, UNDER THE GUISE OF COMMISSIONS,
DISTRIBUTED TO ITS SHAREHOLDERS SUMS THAT ACTUALLY REPRESENTED A
DIVISION OF PROFITS. 

"IF THESE DEFENDANTS HAD THAT KIND OF PLAN AND CARRIED IT OUT, IF
THEY WILFULLY AND INTENTIONALLY ENTERED INTO SUCH AN ARRANGEMENT, THERE
WOULDN'T BE ANY QUESTION OF THEIR GUILT. 

     .         .         . .         . 

IT IS NOT NECESSARY FOR THE GOVERNMENT UNDER THIS INDICTMENT TO PROVE
THAT ALL OF THE SUMS SO DISTRIBUTED TO THESE DEFENDANTS WERE PROFITS. 
IT IS NOT NECESSARY THAT THE GOVERNMENT PROVE ALL OF THE FIGURES
PRECISELY AS THEY ARE CHARGED IN THE INDICTMENT.  IT IS SUFFICIENT IF
YOU FIND BEYOND A REASONABLE DOUBT THAT THE DEFENDANTS INTENTIONALLY
DIVERTED PROFITS OF THIS CONCERN, IN THE AMOUNTS CHARGED IN THE
INDICTMENT OR SUBSTANTIAL PARTS THEREOF, DIVERTED THEM FROM THE FORM OF
PROFITS AND RECEIVED THEM IN THE FORM OF COMMISSIONS." 

FN4  MOLASKY, JAMES RAGEN, JR., AND THE CONSENSUS PUBLISHING COMPANY
WERE ALSO FOUND GUILTY.  THE GOVERNMENT HAS NOT SOUGHT REVIEW OF THE
CIRCUIT COURT OF APPEALS REVERSAL OF THE CONVICTION OF MOLASKY AND
JAMES RAGEN, JR., WHICH INVOLVED ADDITIONAL ISSUES OF NO RELEVANCE TO
THE RESPONDENTS HERE.  THE CORPORATION DID NOT TAKE AN APPEAL FROM THE
JUDGMENT OF THE DISTRICT COURT. 

FN5  UNITED STATES V. MOLASKY, SUPRA, 118 F.2D AT 139. 

FN6  IN 1936, FOR EXAMPLE, "COMMISSIONS" AMOUNTED TO $119,756 AS
COMPARED WITH $8,816 PAID OUT FOR OTHER WAGES AND SALARIES. 

MR. JUSTICE ROBERTS, MR. JUSTICE MURPHY, AND MR. JUSTICE JACKSON TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :











CONTINENTAL CASUALTY CO. V. U.S., 314 U.S. 527 


NO. 39.  ARGUED NOVEMBER 18, 19, 1941.  - DECIDED JANUARY 5, 1942. 


1.  REVISED STATUTES, SEC. 1020, 18 U.S.C. SEC. 601, PROVIDES THAT
WHEN ANY RECOGNIZANCE IN A CRIMINAL CASE RETURNABLE TO ANY COURT OF THE
UNITED STATES IS FORFEITED BY A BREACH OF THE CONDITIONS THEREOF, SUCH
COURT MAY REMIT THE WHOLE OR A PART OF THE PENALTY WHENEVER IT APPEARS
THAT THERE HAS BEEN NO "WILLFUL DEFAULT OF THE PARTY, AND THAT A TRIAL
CAN, NOTWITHSTANDING, BE HAD IN THE CAUSE, AND THAT PUBLIC JUSTICE DOES
NOT OTHERWISE REQUIRE THE SAME PENALTY TO BE ENFORCED."  HELD: 

(1)  THAT THIS STATUTE IS THE EXCLUSIVE SOURCE OF THE POWER OF THE
DISTRICT COURT AT ANY TIME TO REMIT THE FORFEITURE OF A RECOGNIZANCE IN
A CRIMINAL CAUSE.  P. 533. 

(2)  THE WORD "PARTY" APPEARING IN THE PHRASE "WILLFUL DEFAULT OF THE
PARTY," MEANS ONLY THE PRINCIPAL IN THE RECOGNIZANCE; IT DOES NOT
INCLUDE THE SURETY.  P. 530. 

2.  WHERE THE WORDS OF THE REVISED STATUTES ARE CLEAR, THEIR MEANING
MAY NOT BE CHANGED BY RESORT TO THE PRIOR LAW.  P. 530. 

CONTINENTAL CASUALTY CO. ET AL. V. UNITED STATES. 

ON CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

RESPONSE TO QUESTIONS CERTIFIED BY THE CIRCUIT COURT OF APPEALS ON A
REVIEW BY THAT COURT OF A JUDGMENT OF THE DISTRICT COURT, 34 F.SUPP. 
1007, WHICH DISMISSED A PETITION PRAYING THAT FORFEITURE OF A
RECOGNIZANCE BE REMITTED.  THE PETITIONERS WERE THE SURETY AND ITS
INDEMNITOR. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIFICATE BRINGS TO THIS COURT FROM THE COURT OF APPEALS FOR
THE THIRD CIRCUIT QUESTIONS CONCERNING THE POWER OF A DISTRICT COURT OF
THE UNITED STATES TO RELIEVE AN INNOCENT SURETY FROM THE PENALTY OF A
FORFEITED RECOGNIZANCE. 

THE PRINCIPAL IN THE RECOGNIZANCE, "HERBERT R. SHORT, WAS CONVICTED
IN THE DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ON JUNE 20, 1940,
UPON TWO COUNTS OF AN INDICTMENT CHARGING CONSPIRACY AND WAS ON THAT
DAY DIRECTED TO APPEAR IN THE COURT ON JULY 19, 1940, FOR SENTENCE.  ON
JULY 19, 1940, SHORT DID NOT APPEAR IN THE SAID COURT.  THE COURT
THEREUPON ORDERED A BENCH WARRANT TO ISSUE AND ORDERED THE RECOGNIZANCE
TO BE FORFEITED.  SHORT WAS APPREHENDED ON AUGUST 29, 1940.  ON
SEPTEMBER 12, 1940, HE WAS BROUGHT BEFORE THE DISTRICT COURT AND
SENTENCE WAS THEN IMPOSED UPON HIM." 

THE SURETY, CONTINENTAL CASUALTY COMPANY, AND ITS INDEMNITOR, MARIE
M. SHORT, THE WIFE OF THE PRINCIPAL, THE CONVICTED DEFENDANT, FILED A
JOINT PETITION IN THE DISTRICT COURT WITHIN THE TERM AT WHICH THE ORDER
OF FORFEITURE HAD BEEN ENTERED, PRAYING FOR REMISSION OF THE
FORFEITURE.  "THE DISTRICT COURT FOUND AS A FACT THAT THE DEFAULT OF
HERBERT R. SHORT, THE PRINCIPAL IN THE RECOGNIZANCE, WAS WILLFUL, AND
DISMISSED THE PETITION FOR REMISSION OF THE FORFEITURE UPON THE GROUND
THAT IT WAS WITHOUT POWER UNDER SECTION 1020 OF THE REVISED STATUTES,
18 U.S.C. SEC. 601, TO GRANT THE PETITION IN VIEW OF THE WILLFUL
DEFAULT OF THE PRINCIPAL, AND THAT IT HAD NO POWER INDEPENDENTLY OF THE
STATUTE TO ENTERTAIN THE PETITION." 

THE COURT OF APPEALS, BEING IN DOUBT AS TO THE POWER OF THE DISTRICT
COURT, CERTIFIED THE FOLLOWING QUESTIONS TO THIS COURT FOR
INSTRUCTIONS: 

"1.  IS SECTION 1020 OF THE REVISED STATUTES (18 U.S.C. SEC. 601) THE
EXCLUSIVE SOURCE OF THE POWER OF THE DISTRICT COURT OF THE UNITED
STATES AT ANY TIME TO REMIT THE FORFEITURE OF THE PENALTY OF A
RECOGNIZANCE TAKEN IN A CRIMINAL CAUSE? 

"2.  IS THE WORD 'PARTY' APPEARING IN THE PHRASE 'WILLFUL DEFAULT OF
THE PARTY' IN SECTION 1020 OF THE REVISED STATUTES (18 U.S.C. SEC. 601)
INTENDED TO DESCRIBE 

(A)  THE PERSON WHO MAKES APPLICATION TO THE COURT FOR THE REMISSION
OF THE FORFEITURE OF THE PENALTY, WHETHER THAT PERSON IS THE PRINCIPAL
OR THE SURETY IN THE RECOGNIZANCE, 

(B)  ONLY THE PRINCIPAL IN THE RECOGNIZANCE? 

"3.  IF THE ANSWER TO QUESTION 1 IS 'NO' DOES THE DISTRICT COURT OF
THE UNITED STATES HAVE COMMON LAW POWER TO REMIT THE FORFEITURE OF THE
PENALTY OF A RECOGNIZANCE TAKEN IN A CRIMINAL CAUSE, WHERE THE DEFAULT
OF THE PRINCIPAL IN THE RECOGNIZANCE WAS WILLFUL? 

"4.  IF QUESTION 3 IS ANSWERED AND THE ANSWER THERETO IS 'YES' IS THE
COMMON LAW POWER TO REMIT THE FORFEITURE LIMITED TO EXERCISE UPON AN
APPLICATION MADE WITHIN THE TERM OF COURT AT WHICH THE ORDER OF
FORFEITURE WAS ENTERED?" 

THE ANSWERS DEPEND UPON THE CONSTRUCTION OF SEC. 601 OF TITLE 18 OF
THE U.S.C.  SET OUT BELOW.  FN1  THIS SECTION ASSUMED ITS PRESENT FORM
IN THE REVISED STATUTES SEC. 1020, APPROVED JUNE 22, 1874.  R.S. TITLE
LXXIV, SEC. 5596, REPEALED ALL ACTS MENTIONED IN THE REVISION PASSED
PRIOR TO DECEMBER 1, 1873.  THE REVISION SUBSTITUTED THE WORD "PARTY"
FOR THE WORD "PARTIES" WHICH WAS IN THE EARLIER ACT, AND BY REENACTMENT
THUS RAISED THE QUESTION AS TO WHETHER THE WILLFUL DEFAULT MENTIONED IN
BOTH THE REVISION AND THE FORMER ACT MAY BE THAT EITHER OF THE
PRINCIPAL OR HIS BAIL, OR WHETHER IT IS RESTRICTED, ON ACCOUNT OF THE
REVISION, TO THE PRINCIPAL ONLY.  THE PROVISION FOR REMISSION OF
FORFEITURES WAS FIRST ENACTED IN 1839 AS SEC. 6 OF AN "ACT IN AMENDMENT
OF THE ACTS RESPECTING THE JUDICIAL SYSTEM OF THE UNITED STATES."  FN2
THE ACT INCLUDED VARIOUS PROCEDURAL PROVISIONS DESIGNED TO FIX PRACTICE
IN THE FEDERAL COURTS.  THE CHANGE TO THE SINGULAR IN THE REVISED
STATUTES WAS MADE WITHOUT ANY EXPLANATION OF ITS PURPOSE AND INDEED
WITHOUT THE BRACKETS OR ITALICS USED TO INDICATE A REPEAL OR
AMENDMENT.  SEE PREFACE, R.S. (2D ED., 1878), P.V.  THE REVISED FORM,
HOWEVER, IS TO BE ACCEPTED AS CORRECT, NOTWITHSTANDING A POSSIBLE
DISCREPANCY.  R.S. SEC. 5596; UNITED STATES V. BOWEN, 100 U.S. 508,
513; BATE REFRIGERATING CO. V. SULZBERGER, 157 U.S. 1, 45.  CF. U.S.C.,
(1940 ED.)  P. LVII, SEC. 2(A). 

IT APPEARS TO US THAT THERE CAN BE BUT ONE PERSON WHO CAN WILLFULLY
DEFAULT WITHIN THE MEANING OF THE SECTION.  THIS IS THE PRINCIPAL IN
THE RECOGNIZANCE.  BY ITS TERMS HE AGREES TO "APPEAR FOR JUDGMENT." 
WHEN, WITHOUT EXCUSE, HE FAILS TO APPEAR, THERE IS A WILLFUL DEFAULT. 
THE SURETY ONLY GUARANTEES THAT THE PRINCIPAL WILL NOT DEFAULT.  IN A
CERTAIN SENSE THE SURETY MAY DEFAULT BY FAILURE TO PAY ITS OBLIGATION,
BUT THIS IS PLAINLY NOT THE KIND OF DEFAULT TO WHICH THE STATUTE
REFERS.  NOR WILL THE POSSIBILITY OF COLLUSION OF THE SURETY WITH THE
ABSCONDING PRINCIPAL PERMIT AN INTERPRETATION THAT MISCONDUCT ON THE
PART OF THE APPLICANT FOR RELIEF FROM FORFEITURE IS THE "DEFAULT" MEANT
BY THE STATUTE.  THE CONDITION OF THE BOND IS THE APPEARANCE OF THE
PRINCIPAL AT THE TIME SET.  NOTHING LESS SATISFIES THE CONDITION. 

THE APPELLANTS URGE AGAINST THIS CONCLUSION THAT, SINCE THE OBJECT OF
"A RECOGNIZANCE IS NOT TO ENRICH THE TREASURY" BUT TO PROMOTE
CONVENIENCE OF CRIMINAL ADMINISTRATION, UNITED STATES V. FEELY, FED.
CAS. NO. 15,082, AND TO REMEDY HARDSHIPS CAUSED BY DEFAULTS, THE WORD
"PARTY" SHOULD BE LIBERALLY CONSTRUED TO COVER NOT ONLY PRINCIPALS BUT
SURETIES, WITHOUT WILLFUL DEFAULT, EVEN THOUGH THE PRINCIPAL MAY HAVE
DELIBERATELY VIOLATED THE TERMS OF THE RECOGNIZANCE.  THEY FURTHER
POINT OUT THAT JUSTICE SUFFERS NO AFFRONT, SINCE SURRENDER OF THE
FUGITIVE IN TIME FOR TRIAL IS ANOTHER AND AN ESSENTIAL CONDITION OF THE
REMISSION OF THE PENALTY. 

BUT THE CONSIDERATIONS OF POLICY ARE TOO CONFUSED TO AFFORD A CLEAR
TEST OF CONGRESSIONAL PURPOSE.  PAID SURETIES ARE OFTEN, AS HERE,
INDEMNIFIED.  REMISSION OF PENALTY WOULD INURE TO THE BENEFIT OF
DEFENDANTS, WHO HAD VIOLATED THEIR UNDERTAKINGS OF APPEARANCE WITH
CONSEQUENT DISORGANIZATION OF CRIMINAL ADMINISTRATION.  A BAIL CHARGED
WITH CUSTODY OF A DEFENDANT, TAYLOR V. TAINTOR, 16 WALL.  366, 371, MAY
EXERCISE TO THE SUBSTANTIAL BENEFIT OF CRIMINAL ADMINISTRATION A HIGH
DEGREE OF CARE TO PREVENT DEFAULT, IF HE KNOWS THE LATER FORTUITOUS
APPREHENSION OF THE PRINCIPAL WILL NOT RELIEVE HIM OF THE FORFEIT.  IT
IS NOT FOR COURTS TO SAY WHETHER STRICT FORFEITURE ON WILLFUL DEFAULT
OR A GENEROUS ATTITUDE TOWARD INNOCENT BAIL WILL BE MOST CONDUCIVE TO
THE PUBLIC WELFARE.  HENCE, NOT FOR REASONS OF POLICY, BUT BECAUSE OF
THE LANGUAGE OF THE STATUTE, WE CONCLUDE THAT CONGRESS HAS CHOSEN THE
FORMER. 

AFTER THE CHANGE TO "PARTY," WITH EXCEPTIONS IN THE DISTRICT COURTS,
FN3  ALL THE CIRCUITS EXCEPT THE FIRST  FN4  AND TENTH HAVE REACHED OUR
CONCLUSION, TO WIT, THAT THE STATUTE REQUIRES AS A CONDITION TO THE
REMISSION OF THE PENALTY A DETERMINATION THAT THE PRINCIPAL IN THE
RECOGNIZANCE IS FREE OF WILLFUL DEFAULT.  FN5  NO CIRCUIT HAS DECIDED
TO THE CONTRARY. 

SINCE THERE IS NO DOUBT AS TO THE WILLFUL DEFAULT OF THE PRINCIPAL,
UNDER THE INTERPRETATION OF THE STATUTE JUST REACHED, RELIEF, IF ANY
THERE IS FOR THE BAIL, MUST BE IN OTHER SOURCES OF JUDICIAL POWER AS
SUGGESTED IN QUESTIONS 1 AND 3 OF THE CERTIFICATE.  THAT IS TO SAY,
THAT IN ADDITION TO THE STATUTORY POWER THE COURTS HAVE A COMMON LAW
POWER TO REMIT FORFEITURES IN THEIR DISCRETION.  UNITED STATES V.
FEELY, 1 BROCK.  255, FED. CAS. NO. 15082(1813 C.C.), IS RELIED UPON AS
AUTHORITY.  IN THAT CASE, DECIDED BEFORE THE STATUTE, CHIEF JUSTICE
MARSHALL EXERCISED THE POWER AND STAYED PROCEEDINGS.  APPELLANT URGES
THAT FORFEITURE IS A JUDGMENT WITHIN THE POWER OF COURTS TO MODIFY ON
APPLICATION MADE, AS HERE, DURING THE TERM, AND THAT THIS POWER IS NOT
AFFECTED BY THE STATUTE, WHICH WAS INTENDED TO EXTEND THE POWER TO
REMISSION AFTER THE TERM IN WHICH FORFEITURE WAS ENTERED. 

NO AUTHORITY, HISTORICAL OR JUDICIAL, IS CITED BY APPELLANT TO
SUPPORT ITS VIEW THAT THE PURPOSE OF THE ACT OF FEBRUARY 28, 1839, WAS
TO CONFER POWER UPON THE COURTS OF THE UNITED STATES TO ACT AFTER THE
TERM IN WHICH THE FORFEITURE WAS ENTERED, IN CONTRADISTINCTION TO POWER
ALREADY EXISTING TO RELIEVE FROM FORFEITURES DURING THE TERM.  WE SEE
NOTHING IN THE ACT ITSELF TO PERSUADE US THAT THE GENERALITY OF THE
WORDS "WHENEVER IT APPEARS TO THE COURT" MEANS AFTER THE TERM IN WHICH
THE FORFEITURE WAS ENTERED.  SUCH A DESIRE ON THE PART OF CONGRESS TO
EXTEND THE POWER OF THE COURTS WOULD BE MANIFESTED BY THE LANGUAGE OF
EXTENSION RATHER THAN DIFFERENTIATION.  IF THE REASON WAS AS APPELLANT
CONTENDS, WHY QUALIFY THE DISCRETION AFTER THE TERM BY THE CONDITIONS
OF THE STATUTE AND LEAVE THE DISCRETION DURING THE TERM UNQUALIFIED? 

WHATEVER MAY HAVE BEEN THE POWERS OF THE COURTS OF THE UNITED STATES
BEFORE THE STATUTE, THOSE POWERS ARE NOW REGULATED BY STATUTE.  CF.
UNITED STATES V. MACK, 295 U.S. 480, 488.  THESE STATUTORY POWERS ARE
EXCLUSIVE.  BEFORE REMISSION MAY BE ALLOWED THERE MUST BE A
DETERMINATION OF LACK OF WILLFULNESS IN THE DEFAULT, THAT A TRIAL CAN
BE HAD, AND THAT PUBLIC JUSTICE DOES NOT OTHERWISE REQUIRE THE
ENFORCEMENT OF THE PENALTY.  THE STATEMENT OF THE CONDITIONS NEGATIVES
ACTION WITHOUT THE SATISFACTION OF THOSE REQUIREMENTS.  GENERALLY
SPEAKING, A "LEGISLATIVE AFFIRMATIVE DESCRIPTION" IMPLIES DENIAL OF THE
NON-DESCRIBED POWERS.  DUROUSSEAU V. UNITED STATES, 6 CRANCH 307, 314. 
THE CIRCUMSTANCES OF THIS INQUIRY CARRY US BEYOND THE RULE OF EXPRESSIO
UNIUS EST EXCLUSIO ALTERIUS, CF. FORD V. UNITED STATES, 273 U.S. 593,
611, AND INTO THE DOMAIN OF INCONSISTENCY OF PURPOSE.  CF. TEXAS &
PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426, 436 ET SEQ.
THERE CANNOT LOGICALLY BE TWO SERIES OF TESTS TO DETERMINE THE POWER OF
A FEDERAL COURT TO RELIEVE OF FORFEITURE UNDER A RECOGNIZANCE.  THE
CONDITIONS FOR ACTION MAKE ACTION WITHOUT MEETING THE CONDITIONS, WE
THINK, CONTRARY TO CONGRESSIONAL PURPOSE, AS EXPRESSED IN THE STATUTE. 
SINCE THE PASSAGE OF THE ORIGINAL STATUTE ON REMISSION OF FORFEITURES,
THE COURTS OF THE UNITED STATES HAVE, IN GENERAL, HELD THE SAME VIEW
THAT THE STATUTORY POWER WAS EXCLUSIVE.  FN6 

OUR ANSWER TO QUESTION 1 IS "YES."  OUR ANSWER TO QUESTION 2(A) IS
"NO".  OUR ANSWER TO QUESTION 2(B) IS "YES."  IT IS NOT NECESSARY TO
ANSWER QUESTIONS 3 AND 4.  IT IS SO ORDERED. 

FN1  "WHEN ANY RECOGNIZANCE IN A CRIMINAL CAUSE, TAKEN FOR, OR IN, OR
RETURNABLE TO, ANY COURT OF THE UNITED STATES, IS FORFEITED BY A BREACH
OF THE CONDITION THEREOF, SUCH COURT MAY, IN ITS DISCRETION, REMIT THE
WHOLE OR A PART OF THE PENALTY, WHENEVER IT APPEARS TO THE COURT THAT
THERE HAS BEEN NO WILLFUL DEFAULT OF THE PARTY, AND THAT A TRIAL CAN,
NOTWITHSTANDING, BE HAD IN THE CAUSE, AND THAT PUBLIC JUSTICE DOES NOT
OTHERWISE REQUIRE THE SAME PENALTY TO BE ENFORCED." 

FN2  5 STAT. 322. 

FN3  UNITED STATES V. TRAYNOR, 173 F. 114, 116; UNITED STATES V.
O'LEARY, 275 F. 202; UNITED STATES V. SLAIMEN, 6 F.2D 464; UNITED
STATES V. BARGER, 20 F. 500; GRIFFIN V. UNITED STATES, 270 F. 263; CF.
UNITED STATES V. JACOBSON, 257 F. 760. 

FN4  COMPARE UNITED STATES V. SLAIMEN, 6 F.2D 464(D.R.I.), WITH
UNITED STATES V. VINCENT, 10 F.SUPP.  489(D. MASS.), AND DICTA IN
UNITED STATES V. VENDETTI, 33 F.SUPP.  34. 

FN5  UNITED STATES V. KELLEHER, 57 F.2D 684(C.C.A.2D); SUN INDEMNITY
CO. OF NEW YORK V. UNITED STATES, 91 F.2D 120(C.C.A. 3D); UNITED STATES
V. ROBINSON, 158 F. 410(C.C.A.4TH); UNITED STATES V. NORDENHOLZ, 95
F.2D 756(C.C.A.4TH); ISGRIG V. UNITED STATES, 109 F.2D 131,
134(C.C.A.4TH); FIDELITY & DEPOSIT CO. V. UNITED STATES, 293 F.
575(C.C.A.5TH); UNITED STATES V. REED, 117 F.2D 808(C.C.A.5TH); UNITED
STATES V. COSTELLO, 47 F.2D 684(C.C.A.6TH); HENRY V. UNITED STATES, 288
F. 843(C.C.A.7TH); SKOLNIK V. UNITED STATES, 4 F.2D 797,
799(C.C.A.7TH); UNITED STATES V. CAPUA, 94 F.2D 292(C.C.A.7TH); CF.
UNITED STATES V. LIBICHIAN, 113 F.2D 368, 371, 372(C.C.A.7TH); WEBER V.
UNITED STATES, 32 F.2D 110(C.C.A.8TH); LA GROTTA V. UNITED STATES, 77
F.2D 673, 675(C.C.A.8TH); UNITED STATES V. ROSENFELD, 109 F.2D
908(C.C.A.8TH); UNITED STATES V. AMERICAN BONDING CO., 39 F.2D
428(C.C.A.9TH); FIDELITY & DEPOSIT CO. OF MARYLAND V. UNITED STATES, 47
F.2D 222(C.C.A.9TH); UNITED STATES V. VON JENNY, 39 APP. D.C. 377, 381;
UNITED STATES V. ALLEN, 39 APP. D.C. 383; UNITED STATES V. WALTER, 43
APP. D.C. 468. 

FN6  UNITED STATES V. MACK, 295 U.S. 480, 488; UNITED STATES V.
WALTER, 43 APP. D.C. 468; SUN INDEMNITY CO. OF NEW YORK V. UNITED
STATES, 91 F.2D 120; UNITED STATES V. ROBINSON, 158 F. 410, 412; UNITED
STATES V. NORDENHOLZ, 95 F.2D 756; UNITED STATES V. REED, 117 F.2D 808;
UNITED STATES V. COSTELLO, 47 F.2D 684; HENRY V. UNITED STATES, 288 F.
843; UNITED STATES V. LIBICHIAN, 113 F.2D 368; UNITED STATES V.
ROSENFELD, 109 F.2D 908.    MR. JUSTICE ROBERTS TOOK NO PART IN THE
DECISION OF THIS CASE. 
..END :













BOARD OF TRADE V. UNITED STATES, 314 U.S. 534 


NO. 143.  ARGUED NOVEMBER 18, 1941.  - DECIDED JANUARY 5, 1942.  - 36
F.SUPP.  865, AFFIRMED. 


1.  UPON A THOROUGH INVESTIGATION OF THE GRAIN RATE STRUCTURE IN THE
WESTERN DISTRICT, THE INTERSTATE COMMERCE COMMISSION PRESCRIBED RATE
BREAK COMBINATIONS AS THE EXCLUSIVE BASIS OF TRANSIT PRIVILEGES AT
PRIMARY MARKETS.  HOWEVER, TRANSIT PRIVILEGES AT INTERIOR POINTS ON
ROUTES PASSING THROUGH A PRIMARY MARKET WERE ALLOWED ON THE BASIS OF
LOWER RATES IN EFFECT OVER COMPETING ROUTES BETWEEN THE SAME POINTS. 
HELD THAT, CONSIDERING THE WHOLE HISTORY OF GRAIN RATE REGULATION, THE
DIFFERENTIATION BETWEEN PRIMARY MARKETS AND INTERIOR POINTS THUS MADE
BY THE COMMISSION WAS NOT AN UNDUE OR UNREASONABLE DISCRIMINATION
FORBIDDEN BY THE INTERSTATE COMMERCE ACT.  P. 544. 

2.  THE CONTENTION THAT THE ORDERS OF THE COMMISSION ARE INVALID
BECAUSE THEY DEPRIVE THE PRIMARY MARKETS OF NATURAL COMPETITIVE
ADVANTAGES IS REJECTED.  P. 548. 

3.  WHETHER A DISCRIMINATION IS UNREASONABLE UNDER THE ACT IS A
QUESTION OF FACT THAT HAS BEEN CONFIDED BY CONGRESS TO THE JUDGMENT AND
DISCRETION OF THE COMMISSION, AND UPON WHICH ITS DECISIONS, MADE THE
BASIS OF ADMINISTRATIVE ORDERS OPERATING IN FUTURO, ARE NOT TO BE
DISTURBED BY THE COURTS EXCEPT UPON A SHOWING THAT THEY ARE UNSUPPORTED
BY EVIDENCE, WERE MADE WITHOUT A HEARING, EXCEED CONSTITUTIONAL LIMITS,
OR FOR SOME OTHER REASON AMOUNT TO AN ABUSE OF POWER.  P. 546.  HE
DECREE OF THE DISTRICT COURT SHOULD BE REVERSED. 

BOARD OF TRADE OF KANSAS CITY ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MISSOURI. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES DISMISSING
THE COMPLAINT IN A SUIT TO SET ASIDE ORDERS OF THE INTERSTATE COMMERCE
COMMISSION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE HAVE BEFORE US ON THIS APPEAL ORDERS EMBODYING A SERIES OF
DETERMINATIONS MADE BY THE INTERSTATE COMMERCE COMMISSION AFTER
INQUIRIES INTO THE GRAIN RATE STRUCTURE STRETCHING OVER A PERIOD OF
TWELVE YEARS.  THE PLAINTIFFS ARE MILLERS, ELEVATOR COMPANIES, BOARDS
OF TRADE, GRAIN EXCHANGES, AND OTHER BUSINESS INTERESTS IN KANSAS CITY,
ST. LOUIS, OMAHA, ST. JOSEPH, ATCHISON, LEAVENWORTH, AND MINNEAPOLIS,
THE GREAT GRAIN CENTERS KNOWN IN THE TRADE AS "PRIMARY MARKETS."  THE
COMMISSION'S ORDERS, THEY COMPLAIN, CREATE AN UNLAWFUL DISCRIMINATION
UNDER THE INTERSTATE COMMERCE ACT, SECS. 1(5), 2, 3(1), BY PROHIBITING
THE INTERRUPTION OF SHIPMENTS OF GRAIN FOR THE PURPOSE OF BEING STORED,
MARKETED, OR PROCESSED - TECHNICALLY CHARACTERIZED AS TRANSIT
PRIVILEGES - AT THESE PRIMARY MARKETS ON THE LOWER RATES UNDER WHICH
THESE PRIVILEGES ARE AVAILABLE AT COMPETING INTERIOR POINTS (I. E.,
GRAIN CENTERS OTHER THAN PRIMARY MARKETS).  THE DISTRICT COURT
DISMISSED THE COMPLAINT, 36 F.SUPP.  865, AND THE CASE IS HERE ON
APPEAL.  JUDICIAL CODE SEC. 210; 28 U.S.C. SEC. 47(A). 

AS ONE PHASE OF THE EFFORT TO RELIEVE AGRICULTURAL DISTRESS, CONGRESS
IN 1925 BY THE HOCH-SMITH RESOLUTION DIRECTED THE INTERSTATE COMMERCE
COMMISSION TO MAKE A THOROUGH INVESTIGATION OF THE RATE STRUCTURE OF
COMMON CARRIERS "IN ORDER TO DETERMINE TO WHAT EXTENT AND IN WHAT
MANNER EXISTING RATES AND CHARGES MAY BE UNJUST  ...  OR UNDULY
PREFERENTIAL, THEREBY IMPOSING UNDUE BURDENS, OR GIVING UNDUE ADVANTAGE
AS BETWEEN THE VARIOUS LOCALITIES AND PARTS OF THE COUNTRY, THE VARIOUS
CLASSES OF TRAFFIC, AND THE VARIOUS CLASSES AND KINDS OF COMMODITIES,
AND TO MAKE, IN ACCORDANCE WITH LAW, SUCH CHANGES, ADJUSTMENTS, AND
REDISTRIBUTION OF RATES AND CHARGES AS MAY BE FOUND NECESSARY TO
CORRECT ANY DEFECTS SO FOUND TO EXIST."  43 STAT. 801; 49 U.S.C. SEC.
55. 

ACCORDINGLY, ON SEPTEMBER 30, 1926, THE COMMISSION INSTITUTED A
COMPREHENSIVE INVESTIGATION INTO THE RATES AND PRACTICES AFFECTING
GRAIN AND GRAIN PRODUCTS IN THE WESTERN DISTRICT.  FN1  THE COMMISSION
CALLED ITS PROCEEDING "UNUSUAL," INVOLVING AS IT DID "THREE SCORE AND
MORE OF MAJOR ISSUES, AFFECTING EVERY PART OF A VAST TERRITORIAL
DOMAIN, EACH OF WHICH WOULD ORDINARILY PRESENT A CASE OF MORE THAN
AVERAGE IMPORTANCE."  164 I.C.C. 619, 697.  EXTENSIVE HEARINGS WERE
HELD, AND ON THE BASIS OF A HUGE RECORD OF SOME 53,000 PAGES OF
TESTIMONY, INCLUDING 2,100 EXHIBITS, 20,000 PAGES OF MEMORANDA,
EXCEPTIONS, AND ORAL ARGUMENTS, THE COMMISSION ON JULY 1, 1930, ISSUED
A REPORT AND ORDER PRESCRIBING MAXIMUM RATES FOR GRAIN AND GRAIN
PRODUCTS.  164 I.C.C. 619.  A SUPPLEMENTAL REPORT AND ORDER WERE ISSUED
ON APRIL 13, 1931.  173 I.C.C. 511.  BECAUSE THE COMMISSION DID NOT
TAKE EVIDENCE RELATING TO THE DRASTIC CHANGES IN ECONOMIC CONDITIONS
DUE TO THE DEPRESSION OCCURRING BETWEEN THE CLOSE OF ITS HEARINGS AND
THE DATE OF ITS ORDERS, THIS COURT SET ASIDE THE ORDERS.  ATCHISON, T.
& S.F. RY. CO. V. UNITED STATES, 284 U.S. 248.  NEW AND EXTENSIVE
HEARINGS WERE THEREUPON  HELD, AND ON OCTOBER 22, 1934, THE COMMISSION
IN AN ELABORATE REPORT AFFIRMED SOME OF ITS EARLIER FINDINGS AND
MODIFIED OTHERS.  205 I.C.C. 301.  UPON FURTHER CONSIDERATION OF THE
RECORD, THE COMMISSION ISSUED A SUPPLEMENTAL ORDER TO REMOVE
DISCRIMINATIONS BETWEEN INTERIOR POINTS.  215 I.C.C. 83.  DEALERS AT
THE PRIMARY MARKETS THEREUPON FILED FORMAL COMPLAINTS SEEKING
MODIFICATION OF THAT PART OF THE COMMISSION'S ORDERS WHICH
DIFFERENTIATED BETWEEN TRANSIT PRIVILEGES AT PRIMARY MARKETS AND THOSE
AT INTERIOR POINTS.  HEARINGS UPON THESE COMPLAINTS PRODUCED MORE THAN
7,000 PAGES OF NEW TESTIMONY AND OVER 250 EXHIBITS.  ON JULY 27, 1937,
THE COMMISSION AUTHORIZED, BUT DID NOT REQUIRE, THE CARRIERS TO MEET
THE REQUESTS OF THE PRIMARY MARKETS.  223 I.C.C. 235.  THE CARRIERS
HAVING DECLINED TO ACT ON THIS AUTHORIZATION, THE COMMISSION WAS
PETITIONED TO ENTER A MANDATORY ORDER.  PROCEEDINGS WERE REOPENED, NEW
ARGUMENTS WERE HEARD, AND ON JULY 12, 1938, THE COMMISSION FOUND THAT
THE PRESCRIBED RATES DID NOT SUBJECT THE PRIMARY MARKETS TO ANY "UNDUE
PREJUDICE AND DISADVANTAGE."  229 I.C.C. 9, 16.  UPON RECONSIDERATION
THIS CONCLUSION WAS AFFIRMED ON MARCH 13, 1939.  231 I.C.C. 793.  TO
UPSET THESE FINDINGS AND TO STRIKE DOWN THE ORDERS BASED UPON THEM THE
PRESENT SUIT WAS FILED. 

SINCE THE TRANSIT PRIVILEGE IS AT THE CORE OF THIS LITIGATION, A
BRIEF EXPOSITION OF ITS MECHANICS AND MANIPULATIONS BECOMES NECESSARY. 
THE PRIVILEGE OF TRANSIT ENABLES GRAIN TO BE SHIPPED FROM POINT A TO
POINT B, THERE TO BE STORED, MARKETED, OR PROCESSED, AND LATER
RESHIPPED TO POINT C AT A RATE LESS THAN THE COMBINATION OF THE
SEPARATE RATES FROM A TO B AND B TO C. SEE TRANSIT CASE, 24 I.C.C. 340;
ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 279 U.S. 768, 777-79;
LOCKLIN, ECONOMICS OF TRANSPORTATION (1935) 122-23, 629-31.  THE
SHIPPER PAYS THE LOCAL RATE ON THE INBOUND SHIPMENT TO THE TRANSIT
POINT, B IN OUR ILLUSTRATION.  A RECEIPTED FREIGHT BILL SPECIFYING THE
POINT OF ORIGIN, THE RATE PAID, AND OTHER PERTINENT DATA, IS RECORDED
WITH THE TRANSIT BUREAU AS EVIDENCE OF INTENTION OF FURTHER
TRANSPORTATION OF THE INBOUND GRAIN OR ITS EQUIVALENT.  WHEN THE
OUTBOUND SHIPMENT IS TENDERED TO THE CARRIER, THE FREIGHT BILL IS
SURRENDERED IN ORDER THAT THE SHIPPER MAY OBTAIN AN OUTBOUND RATE LOWER
THAN THAT WHICH HE WOULD OTHERWISE BE COMPELLED TO PAY.  THE PRIVILEGE
BELONGS, AS IT WERE, TO BOTH THE GRAIN AND ITS SHIPPER.  "THE BENEFIT
ATTACHING TO GRAIN SHIPPED INTO THE PRIMARY MARKET IS COMMONLY SO BROAD
THAT IT IS TRANSFERABLE NOT ONLY TO ANOTHER OWNER OF THE SAME GRAIN,
BUT TO LIKE GRAIN COMING FROM THE SAME COUNTRY POINT."  ATCHISON, T. &
S.F. RY. CO. V. UNITED STATES, 279 U.S. 768, 778. 

THIS PRIVILEGE WAS AVAILABLE IN THE PRIMARY MARKETS UNDER TWO
DIFFERENT RATE SCHEMES:  (1) THE "OVERHEAD THROUGH RATE" AND (2) THE
"RATE-BREAK COMBINATION." 

(1)  AN OVERHEAD THROUGH RATE IS THE RATE FROM AN ORIGINATING POINT
TO THE FINAL DESTINATION, OR TO A GATEWAY LIKE CHICAGO, VIA A
PARTICULAR POINT.  THUS, ON A SHIPMENT OF GRAIN FROM ENID, OKLAHOMA, TO
CHICAGO VIA KANSAS CITY, THE OVERHEAD THROUGH RATE WAS 38.5 CENTS PER
HUNDRED POUNDS.  UNDER THIS RATE, GRAIN REACHING KANSAS CITY COULD
RECEIVE THE VARIOUS PRIVILEGES OF TRANSIT UPON PAYMENT OF 23.5 CENTS
(THE LOCAL RATE FROM ENID TO KANSAS CITY) UPON THE INBOUND SHIPMENT,
AND THE DIFFERENCE (KNOWN AS THE "TRANSIT BALANCE") BETWEEN THE
OVERHEAD THROUGH RATE, 38.5 CENTS AND THE 23.5 CENTS INBOUND RATE, UPON
THE OUTBOUND SHIPMENT. 

(2)  ON A "RATE-BREAK" BASIS, HOWEVER, GRAIN MOVED ON A COMBINATION
OF THE LOCAL OR FLAT RATE FROM THE ORIGINATING POINT TO THE PRIMARY
MARKET AND THE "PROPORTIONAL" RATE FROM THAT MARKET TO A GATEWAY OR THE
FINAL DESTINATION.  THE PRIMARY MARKETS THEREFORE CAME TO BE KNOWN AS
"RATE-BREAK" POINTS.  THE "PROPORTIONAL" RATE, REPRESENTING AN AVERAGE
OF TRANSIT BALANCES UNDER OVERHEAD THROUGH RATES, WAS DESIGNED TO
OFFSET THE COMPETITIVE ADVANTAGES OF LINES GOING THROUGH RATE-BREAK
POINTS AS AGAINST LINES STARTING THERE.  THE SIGNIFICANCE OF THE RATE
BREAK COMBINATION LAY IN THE FACT THAT FOR MANY POINTS OF ORIGIN THERE
WERE NO OVERHEAD THROUGH RATES.  IN THE ABOVE EXAMPLE, THE PROPORTIONAL
RATE ON OUTBOUND GRAIN SHIPMENTS FROM KANSAS CITY TO CHICAGO WAS 17.5
CENTS.  THE APPLICABLE RATE ON A SHIPMENT OF GRAIN FROM AN ORIGINATING
POINT HAVING NO THROUGH RATE TO CHICAGO VIA KANSAS CITY, WITH OR
WITHOUT TRANSIT AT KANSAS CITY, WAS A COMBINATION OF THE LOCAL RATE TO
KANSAS CITY AND THE PROPORTIONAL RATE FROM KANSAS CITY TO CHICAGO. 

THUS, THE DIFFERENCE BETWEEN THE TWO SYSTEMS PERMITTING TRANSIT AT
PRIMARY MARKETS WAS THE RATE AT WHICH THE OUTBOUND TRAFFIC MOVED. 
UNDER THE RATE-BREAK COMBINATION THE OUTBOUND SHIPMENT MOVED AT THE
PROPORTIONAL RATE; UNDER THE OVERHEAD THROUGH RATE, IT MOVED AT THE
TRANSIT BALANCE.  THE AVAILABILITY OF THESE TWO RATE BASES, THE
COMMISSION FOUND, GAVE RISE TO SERIOUS DISCRIMINATIONS: "WHETHER
OUTBOUND SHIPMENTS ARE AT PROPORTIONAL RATES OR TRANSIT BALANCES
DEPENDS UPON THE SELECTION OF THE INBOUND FREIGHT BILL.  IF THE INBOUND
FREIGHT BILL COVERS A SHIPMENT FROM AN ORIGIN POINT FROM WHICH THERE IS
NO OVERHEAD ROUTE WITH TRANSIT TO FINAL DESTINATION, THE OUTBOUND
SHIPMENT IS AT THE PROPORTIONAL RATE.  BUT GRAIN FROM A POINT FROM
WHICH THERE IS NO OVERHEAD RATE WITH TRANSIT CAN, UNDER PRESENT
PRACTICE, BE SUBSTITUTED FOR GRAIN FROM A POINT FROM WHICH THERE IS
SUCH AN OVERHEAD RATE WITH TRANSIT, AND CAN BE FORWARDED, UPON
PRESENTATION OF THE INBOUND EXPENSE BILL COVERING INBOUND
TRANSPORTATION FROM THE LATTER POINT, AT THE TRANSIT BALANCE DUE THAT
EXPENSE BILL."  164 I.C.C. 619, 634. 

"THE UNCERTAINTY IN ADVANCE AS TO THE OUTBOUND BASIS OF CHARGE ARISES
FROM THE DEPENDENCE OF THAT CHARGE UPON A CHECK OF THE INDIVIDUAL
SHIPPER'S RANGE OF INBOUND BILLING.  THE OUTBOUND CHARGE WILL BE A
TRANSIT BALANCE IF THE INBOUND FREIGHT BILL SURRENDERED COVERS A
SHIPMENT FROM AN ORIGIN FROM WHICH THERE IS A ONE-FACTOR THROUGH RATE
LESS THAN THE RATE-BREAK COMBINATION, AND WILL BE THE HIGHER
PROPORTIONAL RATE IF THE INBOUND FREIGHT BILL SURRENDERED COVERS A
SHIPMENT FROM AN ORIGIN FROM WHICH THERE IS NO SUCH ONE-FACTOR THROUGH
RATE.  TRANSIT BALANCES WILL VARY WITH THE MEASURE BOTH OF THE THROUGH
RATES AND OF THE INBOUND RATES TO THE TRANSIT POINT. 

"THE ADVANTAGE TO THE USER OF THE TRANSIT BALANCE OVER THE USER OF
THE HIGHER PROPORTIONAL RATE IS EVIDENT, AND INCREASES IN THE RATIO OF
THE INCREASE IN THE STORAGE CAPACITY OF THE RESPECTIVE CASH-GRAIN
DEALERS AT THE RATE-BREAK MARKETS.  IN OTHER WORDS, THE GREATER THE
STORAGE CAPACITY THE WIDER THE SELECTION OF INBOUND BILLING AND
PROPORTIONATELY MORE TRANSIT BALANCES."  205 I.C.C. 301, 335. 

IN THE JUDGMENT OF THE COMMISSION THESE PRACTICES "TENDED TO DISRUPT
THE RATE-BREAK COMBINATIONS, DISORGANIZE THE GENERAL RATE STRUCTURE,
MAKE UNCERTAIN IN ADVANCE THE OUTBOUND BASIS OF CHARGE, GIVE AN UNDUE
PREFERENCE TO THE USERS OF TRANSIT BALANCES OVER THE USERS OF
PROPORTIONAL RATES, DEPRESS THE PRICE OF GRAIN AT THE RATE-BREAK
MARKETS AND, BY DIRECT REFLECTION, AT THE COUNTRY POINTS, AND REDUCE
THE REVENUES OF THE CARRIERS."  205 I.C.C. 301, 334. 

THUS, THE ISSUE BEFORE THE COMMISSION WAS "WHETHER THE RATES THROUGH
THE PRIMARY MARKETS SHALL BE MADE ON THE COMBINATION OF FLAT RATES TO
AND PROPORTIONAL RATES FROM THE MARKETS EXCLUSIVELY, OR IN PART, OR AT
ALL."  PUTTING IN THE BALANCE ALL THE COMPLEX AND CONFLICTING
INTERESTS, THE COMMISSION REACHED THESE CONCLUSIONS:  "JUST SO LONG AS
TRANSIT BALANCES REMAIN A SUBSTANTIAL FACTOR IN THE ADJUSTMENT OF RATES
FROM THE PRIMARY MARKETS, JUST SO LONG WILL THERE BE UNDUE PREFERENCES
BETWEEN OUTBOUND SHIPPERS, AS WELL AS GENERAL INSTABILITY IN RATES
RESULTING FROM SHIPPERS SEEKING THE TRANSLATION OF TRANSIT BALANCES
INTO PROPORTIONAL RATES.  ...  THE BEST INTERESTS NOT ONLY OF THE
PRIMARY MARKETS, BUT OF THE PRODUCER, CONSUMER, AND CARRIER WILL BE
SERVED BY THE FULLEST POSSIBLE APPLICATION OF THE RATE-BREAK
COMBINATIONS THROUGH PRIMARY MARKETS."  164 I.C.C. 619, 644-45.  FN2 

ACCORDINGLY, IT PRESCRIBED NEW RATE-BREAK COMBINATIONS  FN3  AND MADE
THEM APPLICABLE TO TRANSIT BOTH AT PRIMARY MARKETS AND AT INTERIOR
POINTS ON ROUTES PASSING THROUGH SUCH MARKETS.  FN4  THE EXCLUSIVE RATE
BREAK COMBINATIONS WERE NOT MADE APPLICABLE TO INTERIOR POINTS NOT ON
ROUTES PASSING THROUGH RATE-BREAK MARKETS BECAUSE THE RATE-BREAK
COMBINATIONS HAD NO RELEVANCE TO THESE POINTS.  164 I.C.C. 619, 645;
173 I.C.C. 511, 516-17. 

A CONCRETE ILLUSTRATION WILL ROB THIS RAILROAD JARGON OF ITS
MYSTERY.  THE THROUGH RATE OVER NUMEROUS ROUTES FROM KANSAS CITY TO
CHICAGO WAS 16 CENTS.  SOME OF THESE ROUTES PASS THROUGH OMAHA, FROM
WHICH THE PROPORTIONAL RATE WAS ALSO 16 CENTS.  OTHER ROUTES FROM
KANSAS CITY TO CHICAGO DO NOT PASS THROUGH OMAHA.  INTERIOR POINTS LIKE
FALLS CITY AND NEBRASKA CITY, WHICH ARE ON ROUTES THROUGH OMAHA, HAD TO
PAY 6 1/2 CENTS, THE LOCAL RATE TO OMAHA, PLUS 16 CENTS, THE
PROPORTIONAL RATE FROM OMAHA TO CHICAGO.  BUT OTHER INTERIOR POINTS
LYING BETWEEN KANSAS CITY AND CHICAGO ON ROUTES NOT PASSING THROUGH
OMAHA WERE REQUIRED TO PAY ONLY THE 16 CENTS THROUGH RATE.  THE NET
RESULT WAS THAT INTERIOR POINTS ON ROUTES PASSING THROUGH RATE-BREAK
MARKETS WERE PLACED AT A SUBSTANTIAL COMPETITIVE DISADVANTAGE WITH
INTERIOR POINTS NOT ON SUCH ROUTES. 

DEALERS AT THE INTERIOR POINTS ON ROUTES PASSING THROUGH RATE-BREAK
MARKETS LIKE OMAHA PETITIONED THE COMMISSION TO MODIFY ITS ORDERS SO AS
TO REMOVE THIS DISCRIMINATION BETWEEN INTERIOR POINTS.  THEY URGED ON
THE COMMISSION THAT, INASMUCH AS THE FUNDAMENTAL PURPOSE OF THE RATE
BREAK COMBINATIONS WAS THE ESTABLISHMENT OF UNIFORM PROPORTIONAL RATES
ON OUTBOUND SHIPMENTS FROM PRIMARY MARKETS, THIS PURPOSE WOULD NOT BE
FRUSTRATED IF, IN ORDER TO MEET THE LOWER THROUGH RATE OVER COMPETITIVE
ROUTES, TRANSIT ON THE THROUGH RATE WERE PERMITTED AT INTERIOR POINTS
ON ROUTES THROUGH RATE-BREAK MARKETS.  THE COMMISSION FOUND THAT THE
REQUESTED MODIFICATION WOULD REMOVE THE DISCRIMINATION BETWEEN INTERIOR
POINTS WITHOUT SUBJECTING THE PRIMARY MARKETS TO ANY NEW SUBSTANTIAL
COMPETITIVE DISADVANTAGES.  215 I.C.C. 83, 92-3.  IT FOUND THAT UNDER
TRANSIT ON AN OVERHEAD THROUGH RATE, DEALERS AT INTERIOR POINTS
OPERATED UNDER IMPORTANT COMPETITIVE DISADVANTAGES.  THE THROUGH RATES
WERE APPLICABLE ONLY ON "REASONABLY DIRECT," NOT "MARKEDLY CIRCUITOUS"
ROUTES, AND OUTBOUND SHIPMENTS FROM THE TRANSIT POINT WERE USUALLY
LIMITED TO THE RAILS OF EITHER THE INBOUND CARRIER OR A CARRIER
PARTICIPATING WITH IT IN A JOINT RATE VIA THE TRANSIT POINT.  DEALERS
AT RATE-BREAK MARKETS, ON THE OTHER HAND, WERE FREE FROM SUCH
RESTRICTIONS AS TO CIRCUITY OF ROUTES AND CHOICE OF OUTBOUND CARRIER. 
THE PROPORTIONAL RATE WAS APPLICABLE TO ALL LINES FROM PRIMARY MARKET
TO DESTINATION, REGARDLESS OF THE INBOUND SHIPMENT'S POINT OF ORIGIN. 
THE COMMISSION FOUND THIS TO BE A "SUBSTANTIAL ADVANTAGE TO THE TRANSIT
OPERATORS AT THE RATE-BREAK MARKETS OVER THE TRANSIT OPERATORS AT THE
INTERIOR TRANSIT POINTS."  215 I.C.C. 83, 91.  ACCORDINGLY, IT MODIFIED
ITS PREVIOUS ORDERS SO AS TO PERMIT TRANSIT AT INTERIOR POINTS ON
ROUTES PASSING THROUGH A PRIMARY MARKET "ON THE BASIS OF A LOWER RATE
IN EFFECT OVER A COMPETING ROUTE BETWEEN THE SAME POINTS."  215 I.C.C.
83, 93. 

TO GIVE THIS ORDER PRACTICAL APPLICATION:  AT ALL INTERIOR POINTS
LYING ON ROUTES FROM KANSAS CITY TO CHICAGO, TRANSIT PRIVILEGES WERE
AVAILABLE AT THE 16 CENTS RATE, WHILE SHIPMENTS STOPPING FOR TRANSIT AT
PRIMARY MARKETS ALONG SUCH ROUTES, E.G., OMAHA, ATCHISON, LEAVENWORTH,
AND ST. JOSEPH, COULD MOVE ONLY AT THE RATE-BREAK COMBINATION OF THE 6
1/2 CENTS INBOUND RATE AND THE 16 CENTS OUTBOUND PROPORTIONAL RATE. 

THE CRUX OF THIS LITIGATION IS THE VALIDITY OF THE DIFFERENTIATION
BETWEEN PRIMARY MARKETS AND INTERIOR POINTS THUS MADE BY THE COMMISSION
IN THE SETTING OF THE WHOLE HISTORY OF GRAIN RATE REGULATION. 

DEALERS AT THE PRIMARY MARKETS COMPLAINED AGAINST THIS
DIFFERENTIATION.  THE COMMISSION AGAIN CANVASSED THE PERPLEXING FACTORS
OF THE TANGLED PROBLEM BEFORE IT.  AFTER POINTING OUT THAT AT THE
EARLIER STAGES OF THE GRAIN RATE INQUIRY "ESPECIALLY THE MARKETS" HAD
SUPPORTED THE SYSTEM OF "RATE-BREAKS AT MARKET POINTS AND OVERHEAD
RATES WITH TRANSIT AT LOCAL POINTS," THE COMMISSION OBSERVED:  "NO
EXTENSIVE RATE STRUCTURE CAN BE MADE PERFECT NOR CAN ANY RATE STRUCTURE
BE MADE PERMANENT IN ANY REAL SENSE IN A CHANGING WORLD.  ...  THE TWO
GRAIN CASES TOGETHER HAVE DEMONSTRATED THE IMPOSSIBILITY, EVEN ON THE
PART OF THOSE MOST EXPERIENCED, MOST COMPETENT, AND MOST EXPERT, OF
SEEING IN ADVANCE THE CONSEQUENCES OF THE PARTICULAR CHANGES IN RATES
AND PRACTICES HERE UNDER CONSIDERATION.  APPARENTLY NOTHING BUT
EXPERIENCE CAN FURNISH A DEMONSTRATION, AND EVEN THE DEMONSTRATION OF
EXPERIENCE MAY NOT PROVE TO BE CONCLUSIVE UNLESS IT CAN BE HAD ON A
SCALE SUFFICIENTLY LARGE AND AT INTERVALS OF TIME SUFFICIENTLY CLOSE,
AND UNDER SUBSTANTIALLY SIMILAR CONDITIONS."  223 I.C.C. 235, 245-46. 
IT TOOK OCCASION TO RECALL THESE GUIDING CONSIDERATIONS FROM ITS FIRST
REPORT:  "IT WOULD BE IMPOSSIBLE TO TAKE ANY COMPREHENSIVE ACTION
WITHOUT ADVERSELY AFFECTING CERTAIN OF THE CONFLICTING INTERESTS UPON
THIS RECORD.  NOTHING BUT EXPERIENCE CAN DEMONSTRATE WHAT THE EFFECT
WILL BE REGARDING CERTAIN OF THESE ISSUES.  ... ALL PARTIES SHOULD
COOPERATE TO MAKE CAREFUL NOTE OF THE EFFECT UPON THEIR INTERESTS, WITH
THE VIEW TO BRINGING TO OUR ATTENTION FROM TIME TO TIME, AFTER A
REASONABLE TRIAL, THOSE SITUATIONS WHICH MAY REQUIRE FURTHER
CONSIDERATION."  164 I.C.C. 619, 698.  TO YIELD TO THE WISH OF THE
DEALERS OF THE PRIMARY MARKETS WOULD, THE COMMISSION FOUND, WORK "A
HARDSHIP UPON THE MILLING INDUSTRY AT MANY INTERMEDIATE POINTS, WITH
LITTLE OR NO BENEFIT TO THE MARKETS, WHICH WOULD STILL BE AT A
DISADVANTAGE IN COMPETING WITH OTHER RATE-BREAK MARKETS AND INTERIOR
POINTS ON LOWER-RATED ROUTES."  223 I.C.C. 235, 245.  IT CONCLUDED,
THEREFORE, THAT THE RECORD DID NOT JUSTIFY THE MANDATORY ORDER SOUGHT
BY THE MARKETS.  INSTEAD IT AUTHORIZED THE CARRIERS BY APPROPRIATE
TARIFFS TO MAKE "RESTRICTED DEPARTURES FROM THE EXCLUSIVE APPLICATION
OF PROPORTIONAL RATES AT RATE-BREAK POINTS FOR A LIMITED PERIOD OF
TIME" UPON CONDITION THAT SUCH DEPARTURES "SHOULD BE SURROUNDED BY SUCH
EFFECTIVE SAFEGUARDS AS WILL MAKE IT IMPOSSIBLE TO REESTABLISH" THE
DISCRIMINATIONS INCIDENT TO THE DOUBLE SYSTEM OF RATES AT PRIMARY
MARKETS.  223 I.C.C. 235, 246. 

THE CARRIERS HAVING DECLINED TO ACT ON THIS AUTHORIZATION, THE
MARKETS AGAIN SOUGHT A COMPULSORY ORDER.  UPON REARGUMENT, THE
COMMISSION CONCLUDED THAT "THE GRANTING OF THE TRANSIT REQUESTED WOULD
BREAK DOWN THE RATE-BREAK ADJUSTMENT PRESCRIBED IN THE GRAIN CASE; THAT
SAID ADJUSTMENT SHOULD BE ABANDONED, IF AT ALL, ONLY UPON DEMONSTRATION
OF ITS FAILURE AS A WORKABLE ADJUSTMENT, OVER AN ADEQUATE PERIOD OF
NORMAL CONDITIONS IN THE GRAIN TRADE; THAT SUCH A TEST HAS NOT BEEN
GIVEN THE ADJUSTMENT."  229 I.C.C. 9, 16.  FN5  ACCORDINGLY, THE
COMMISSION DISMISSED THE COMPLAINTS AND WITHDREW ITS PREVIOUS
PERMISSION TO THE CARRIERS VOLUNTARILY TO ESTABLISH THE RATES REQUESTED
BY THE PRIMARY MARKETS.  AFTER A SECOND REARGUMENT THE COMMISSION
ADHERED TO THIS CONCLUSION.  231 I.C.C. 793. 

THE APPELLANTS DO NOT CLAIM THAT THE COMMISSION'S FINDINGS ARE DEVOID
OF PROOF OR THAT THEY WERE REACHED WITHOUT OBSERVANCE OF APPROPRIATE
PROCEDURES.  THEIR CLAIM, IN SUBSTANCE, IS THAT WHATEVER BENEFITS THE
DOUBLE SYSTEM AFFORDS THE PRIMARY MARKETS ARE NATURAL ADVANTAGES, AND
THAT TO DEPRIVE THEM OF THESE ADVANTAGES WORKS AN UNLAWFUL
DISCRIMINATION. 

THE ACT FORBIDS THE COMMISSION TO ESTABLISH A RATE STRUCTURE WHICH
WOULD GIVE ONE TRANSIT POINT AN "UNDUE OR UNREASONABLE PREFERENCE OR
ADVANTAGE" AND WOULD SUBJECT ANOTHER POINT TO AN "UNDUE OR UNREASONABLE
PREJUDICE OR DISADVANTAGE."  BUT THIS DOES NOT MEAN THAT THE LAW
COMPELS IDENTITY OF TREATMENT FOR LIKE SERVICES AT DIFFERENT PLACES. 
IT PROHIBITS ONLY "UNDUE" OR "UNREASONABLE" DISCRIMINATIONS.  "WHETHER
A PREFERENCE OR ADVANTAGE OR DISCRIMINATION IS UNDUE OR UNREASONABLE OR
UNJUST IS ONE OF THOSE QUESTIONS OF FACT THAT HAVE BEEN CONFIDED BY
CONGRESS TO THE JUDGMENT AND DISCRETION OF THE COMMISSION  ...  , AND
UPON WHICH ITS DECISIONS, MADE THE BASIS OF ADMINISTRATIVE ORDERS
OPERATING IN FUTURO, ARE NOT TO BE DISTURBED BY THE COURTS EXCEPT UPON
A SHOWING THAT THEY ARE UNSUPPORTED BY EVIDENCE, WERE MADE WITHOUT A
HEARING, EXCEED CONSTITUTIONAL LIMITS, OR FOR SOME OTHER REASON AMOUNT
TO AN ABUSE OF POWER."  MANUFACTURERS RY. CO. V. UNITED STATES, 246
U.S. 457, 481; SEE NASHVILLE, C. & ST. L. RY. V. TENNESSEE, 262 U.S.
318, 322; UNITED STATES V. CHICAGO HEIGHTS TRUCKING CO., 310 U.S. 344,
352-53. 

THE PROCESS OF RATE MAKING IS ESSENTIALLY EMPIRIC.  THE STUFF OF THE
PROCESS IS FLUID AND CHANGING - THE RESULTANT OF FACTORS THAT MUST BE
VALUED AS WELL AS WEIGHED.  CONGRESS HAS THEREFORE DELEGATED THE
ENFORCEMENT OF TRANSPORTATION POLICY TO A PERMANENT EXPERT BODY AND HAS
CHARGED IT WITH THE DUTY OF BEING RESPONSIVE TO THE DYNAMIC CHARACTER
OF TRANSPORTATION PROBLEMS.  CF. RAILROAD COMMISSION V. ROWAN & NICHOLS
OIL CO., 310 U.S. 573, 581-82. 

THE WISDOM OF THE NARROW SCOPE WITHIN WHICH CONGRESS HAS CONFINED
JUDICIAL PARTICIPATION IN THE RATE-MAKING PROCESS IS STRIKINGLY
VINDICATED BY THE HISTORY OF THIS CONTROVERSY.  THE COMMISSION'S
LABORIOUS INVESTIGATION INTO THE GRAIN RATE STRUCTURE DISCLOSED THAT
DISCRIMINATIONS WERE INSEPARABLE FROM THE OPERATION, SIDE BY SIDE, OF
TWO SYSTEMS OF RATES ALLOWING TRANSIT OF GRAIN AT PRIMARY MARKETS. 
THIS BASIC FINDING IS NOT CHALLENGED.  AND IT IS THIS FACT WHICH
CREATED THE PROBLEM FOR SOLUTION BY THE COMMISSION.  THERE WAS NO READY
ANSWER EITHER IN LAW REPORTS OR IN ECONOMIC EXPERIENCE.  ANY SOLUTION
HAD TO REST ON INFORMED JUDGMENT.  AND JUDGMENT IN A SITUATION LIKE
THIS IMPLIES, ULTIMATELY, PROPHECY BASED ON THE FACTS IN THE RECORD AS
ILLUMINED BY THE SEASONED WISDOM OF THE EXPERT BODY.  IN THIS
PERSPECTIVE, THE COMMISSION HAD SEVERAL CHOICES BEFORE IT - BUT ALL
INEVITABLY RESTED UPON TRIAL AND ERROR.  IT MIGHT HAVE ESTABLISHED THE
OVERHEAD THROUGH RATE AS THE EXCLUSIVE BASIS OF TRANSIT AT PRIMARY
MARKETS.  IT MIGHT HAVE BANKED ON THE EXCLUSIVE RATE-BREAK
COMBINATION.  IT MIGHT HAVE ABOLISHED THE PRIVILEGE OF FREE TRANSIT
ENTIRELY.  OF ONLY ONE THING COULD THE COMMISSION BE COMPLETELY
CERTAIN:  NO ACTION COULD BE TAKEN WITHOUT "ADVERSELY AFFECTING CERTAIN
OF THE CONFLICTING INTERESTS."  164 I.C.C. 619, 698.  WEIGHING THE
PROSPECTIVE GAINS AND HURTS WHICH WERE PART OF ALL OF THE PROPOSED
REMEDIES, THE COMMISSION DECIDED UPON THE EXCLUSIVE RATE-BREAK
COMBINATION.  IT DID SO, HOWEVER, WITH FULL RECOGNITION THAT THE WISDOM
OF ITS ACTION HAD TO MEET THE TEST OF EXPERIENCE.  THEREFORE, IT
TREATED ITS CONCLUSION AS PART OF A CONTINUING PROCESS, AND REQUESTED
THE PARTIES TO GIVE THE SYSTEM WHICH IT ADOPTED A "REASONABLE TRIAL,"
CONTEMPLATING SUCH FURTHER CONSIDERATION AS THE PRACTICAL OPERATION OF
THE SYSTEM WOULD REQUIRE.  THE COMMISSION REFUSED THE MODIFICATIONS
ASKED BY THE APPELLANTS BECAUSE THE RATE-BREAK ADJUSTMENT WAS "ENTITLED
TO A THOROUGH TEST OVER AN ADEQUATE PERIOD OF NORMAL CONDITIONS IN THE
GRAIN TRADE" AND IT HAD "RECEIVED NO SUCH FAIR TEST UP TO THE PRESENT
TIME."  TO GRANT THE REQUESTED MODIFICATIONS WOULD "BREAK DOWN THE RATE
BREAK ADJUSTMENT."  229 I.C.C. 9, 15-16.  THESE FINDINGS ARE
INCONTESTABLE. 

THAT THE COMMISSION ITSELF WAS OF DIVIDED MIND IN THE SUCCESSIVE
STAGES OF THIS CONTROVERSY EMPHASIZES THAT THE PROBLEM IS ENMESHED IN
DIFFICULT JUDGMENTS OF ECONOMIC AND TRANSPORTATION POLICY.  NEITHER
RULE OF THUMB, NOR FORMULA, NOR GENERAL PRINCIPLES PROVIDE A READY
ANSWER.  WE CERTAINLY HAVE NEITHER TECHNICAL COMPETENCE NOR LEGAL
AUTHORITY TO PRONOUNCE UPON THE WISDOM OF THE COURSE TAKEN BY THE
COMMISSION.  IT IS NOT FOR US TO TINKER WITH SO SENSITIVE AN ORGANISM
AS THE GRAIN RATE STRUCTURE, ONLY A MINOR PHASE OF WHICH IS CAUGHT IN
THE RECORD BEFORE US.  IF WE WERE TO GRANT THE RELIEF SOUGHT BY THE
APPELLANTS, WE WOULD BE RESTORING EVILS WHICH THE EXCLUSIVE RATE-BREAK
ADJUSTMENT WAS DESIGNED TO REMOVE - EVILS WHICH, FOR ALL WE KNOW, WOULD
BE FAR MORE SERIOUS THAN THOSE COMPLAINED OF BY THE APPELLANTS. 

WHAT WE HAVE SAID SUFFICIENTLY DISPOSES OF THE SUGGESTION THAT THE
ORDERS OF THE COMMISSION MUST BE STRICKEN DOWN BECAUSE THEY WIPE OUT
NATURAL COMPETITIVE ADVANTAGES OF THE PRIMARY MARKETS.  A RATE
STRUCTURE FOUND TO INVOLVE SERIOUS DISCRIMINATIONS AMONG SHIPPERS,
CARRIERS, AND TRANSIT POINTS ALIKE, IS HARDLY A MANIFESTATION OF NATURE
BEYOND THE COMMISSION'S POWER TO REPAIR.  AFFIRMED. 

FN1  THE WESTERN DISTRICT IS DEFINED AS THE AREA "ON AND WEST OF THE
MISSISSIPPI RIVER, WEST OF LAKES SUPERIOR AND MICHIGAN, AND WEST OF AND
INCLUDING ILLINOIS." 

FN2  THE COMMISSION SPECIFICALLY FOUND THAT THE ADOPTION OF THE
EXCLUSIVE RATE-BREAK COMBINATION AT THE PRIMARY MARKETS WOULD GIVE THE
MARKETS SUBSTANTIAL COMPETITIVE ADVANTAGES OVER INTERIOR TRANSIT
POINTS:  "THE PROPORTIONAL RATE IS APPLICABLE OVER ALL OUTBOUND LINES
UPON SURRENDER OF AN INBOUND FREIGHT BILL COVERING AN INBOUND SHIPMENT
BY RAIL, WHETHER THE TRANSPORTATION THROUGH THE RATE-BREAK MARKET IS
OVER A REASONABLY DIRECT ROUTE OR NOT.  IT IS THE EQUIVALENT IN ALL
RESPECTS, AND MORE, OF A LOCAL RATE.  ...  IT IS DESIGNED FOR THE FINAL
GATHERING IN BY THE RATE-BREAK MARKET, FOR THROUGH TRANSPORTATION AT
LESS THAN THE COMBINATIONS OF LOCAL RATES THAT WOULD OTHERWISE APPLY,
OF GRAIN NOT PROCURABLE UNDER ONE-FACTOR THROUGH RATES LESS THAN THE
RATE-BREAK COMBINATIONS (AND RESULTING TRANSIT BALANCES LESS THAN THE
PROPORTIONAL), BECAUSE OF THE LIMITATIONS ON OUT-OF-LINE AND BACK-HAUL
MOVEMENT INCIDENT TO THE USUAL APPLICATION OF THE ONE-FACTOR THROUGH
RATES ONLY OVER REASONABLY DIRECT ROUTES, AND BECAUSE OF THE FURTHER
USUAL REQUIREMENT OF OUTBOUND SHIPMENT FROM THE TRANSIT POINT OVER THE
RAILS OF THE INBOUND CARRIER.  THE PROPORTIONAL RATES THEREFORE OPEN UP
TO THE RATE-BREAK MARKETS THE WIDEST POSSIBLE RANGE OF ORIGINATING AND
DISTRIBUTING TERRITORY AND AFFORD, TOGETHER WITH THE LARGER NUMBER OF
CARRIERS USUALLY FOUND CONVERGING INBOUND TO AND RADIATING OUTBOUND
FROM THE RATE-BREAK MARKET, IN THE DIRECTION OF THE NORMAL FLOW OF THE
GRAIN TRAFFIC, A DECIDED ADVANTAGE TO THAT MARKET OVER THE INTERIOR
TRANSIT POINT."  205 I.C.C. 301, 340-41. 

FN3  THE COMMISSION REVISED EXISTING RATE-BREAK COMBINATIONS,
REDUCING BOTH THE INBOUND FLAT RATES AND THE OUTBOUND PROPORTIONALS,
AND ORDERED THAT THE PRESCRIBED RATE-BREAK COMBINATIONS BE MADE THE
EXCLUSIVE BASIS OF CHARGE UPON GRAIN SHIPMENTS MOVING THROUGH OR
STOPPING FOR TRANSIT AT PRIMARY MARKETS, AND THAT OVERHEAD THROUGH
RATES LESS THAN THE PRESCRIBED RATE-BREAK COMBINATIONS BE CANCELLED. 
164 I.C.C. 619, 645. 

FN4  "THE RESTRICTION IS LAID ON THE INTERMEDIATE POINTS OTHER THAN
THE MARKET, AS WELL AS UPON THE MARKET, IN ORDER NOT TO DISCRIMINATE
AGAINST THE MARKET IN FAVOR OF THE OTHER INTERMEDIATE POINTS."  173
I.C.C. 511, 516. 

FN5  TO RESCIND THE PREVIOUS MODIFICATIONS, THE COMMISSION FOUND,
"WOULD DEPRIVE THESE INTERIOR TRANSIT POINTS OF THE SAME KIND OF
TRANSIT ACCORDED INTERIOR TRANSIT POINTS ON OTHER ROUTES AND ...  WOULD
NOT MATERIALLY BENEFIT COMPLAINANTS, WHO WOULD STILL BE CONFRONTED WITH
THEIR MAJOR COMPETITION."  229 I.C.C. 9, 14. 

MR. JUSTICE ROBERTS IS OF OPINION THAT T
..END :





















FISCHER V. AMER. UNITED INS. CO., 314 U.S. 549 


NO. 91.  ARGUED DECEMBER 18, 1941.  - DECIDED JANUARY 5, 1942.  - 117
F.2D 811, REVERSED. 


1.  A SUIT IN THE FEDERAL DISTRICT COURT IN IOWA, BROUGHT BY AN IOWA
RECEIVER OF A MICHIGAN INSURANCE COMPANY, WITH THE APPROVAL OF AN IOWA
COURT, AGAINST THE MICHIGAN AND TEXAS RECEIVERS OF THE COMPANY, FOR AN
ADJUDICATION OF RIGHTS IN ASSETS OF THE COMPANY WHICH WERE IN HIS
POSSESSION AND WHICH HAD BEEN DEPOSITED PURSUANT TO STATUTES OF IOWA
FOR THE PROTECTION OF A SPECIAL CLASS OF POLICYHOLDERS, HELD (DIVERSITY
OF CITIZENSHIP AND JURISDICTIONAL AMOUNT BEING PRESENT) WITHIN THE
JURISDICTION OF THE COURT UNDER SEC. 57 OF THE JUDICIAL CODE.  P. 555. 

2.  THE DISTRICT COURT IS NOT PREVENTED FROM EXERCISING JURISDICTION
IN SUCH CASE BY ANY RULE OF DEFERENCE TO STATE COURTS.  P. 553. 

FISCHER, COMMISSIONER OF INSURANCE OF IOWA, RECEIVER, V. AMERICAN
UNITED LIFE INSURANCE CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 589, TO REVIEW A DECREE REVERSING THE DISTRICT
COURT AND DIRECTING THAT THE BILL OF COMPLAINT BE DISMISSED FOR WANT OF
JURISDICTION. 

THE ADMINISTRATION OF THE ESTATE OF AN INSOLVENT LIFE INSURANCE
COMPANY IS WITHIN THE EXCLUSIVE JURISDICTION OF THE COURT APPOINTING
THE DOMICILIARY RECEIVER. 

UNDER MICHIGAN LAW TITLE TO ALL ASSETS WAS IN THE MICHIGAN RECEIVER. 

SEE RELF V. RUNDLE, 103 U.S. 222; BOLEN-DARNELL COAL CO. V. KIRK, 25
OKLA. 279; CHESAPEAKE RY. CO. V. MCCABE, 213 U.S. 218; RUNDLE V. LIFE
ASSN., 10 F. 720; BALTIMORE & OHIO R. CO. V. KOONTZ, 104 U.S. 5;
AUGUSTA V. KIMBALL, 91 ME. 608; BERNHEIMER V. CONVERSE, 206 U.S. 516;
FISH V. SMITH, 73 CONN. 281; BARLEY V. GITTINGS, 15 APP. D.C. 438;
MACMURRAY V. SIDWELL, 155 IND. 566; JOY V. MIDLAND STATE BANK, 26 S.D.
254; HARDEE V. WILSON, 129 TENN. 513; AVERY V. BOSTON SAFE DEPOSIT CO.,
72 F. 701; HALE V. HARDON, 95 F. 747; AMERICAN WATER-WORKS CO. V.
FARMERS' LOAN CO., 20 COLO. 211; GILMAN V. KETCHAM, 84 WIS. 69; LIFE
ASSN. OF AMERICA V. GOODE, 71 TEX. 95; CHILDS V. CLEAVES, 95 ME. 514;
NASHUA SAVINGS BANK V. ANGLO-AMERICAN LAND CO., 189 U.S. 221; LEWIS V.
CLARK, 129 F. 570; CLARK V. WILLIARD, 292 U.S. 112. 

THE LAWS OF MICHIGAN ARE PART OF THE CHARTER OF A MICHIGAN INSURANCE
COMPANY. 

ADMINISTRATION OF THE DEPOSITED ASSETS WAS SOLELY IN THE MICHIGAN
RECEIVER.  THE FEDERAL COURT HAD NO JURISDICTION.  FRY V. CHARTER OAK
LIFE INS. CO., 31 F. 197; PARSONS V. CHARTER OAK LIFE INS. CO., 31 F.
305; SMITH V. TAGGART, 87 F. 94; BLAKE V. OLD COLONY LIFE INS. CO., 209
F. 309; ILLINOIS LIFE INSURANCE CO. V. TULLY, 174 F. 355; MOTLOW V.
SOUTHERN HOLDING & SECURITIES CORP., 95 F.2D 721, CERT. DEN.  305 U.S.
609; INTERNATIONAL CO. V. OCCIDENTAL LIFE INS. CO., 98 F.2D 138, CERT.
DEN.  305 U.S. 639; HOLLOWAY V. FEDERAL RESERVE LIFE INS. CO., 21
F.SUPP.  516; HOLLEY V. GENERAL AMERICAN LIFE INS. CO., 101 F.2D 172,
CERT. DEN.  307 U.S. 615; HUTCHINS V. PACIFIC MUTUAL LIFE INS. CO., 97
F. 58; HOBBS V. OCCIDENTAL LIFE INS. CO., 87 F.2D 380, CERT. DEN.  305
U.S. 603; KANSAS V. OCCIDENTAL LIFE INS. CO., 95 F.2D 935, CERT. DEN. 
305 U.S. 603; PHIPPS V. CHICAGO, R.I. & P. RY. CO., 284 F. 945; WILSON
V. KEELS, 54 S.C. 545; PEOPLE V. STATE LIFE OF ILLINOIS, 296 ILL. APP.
337. 

THE REINSURANCE TREATIES CREATED A NOVATION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS CASE IS WHETHER THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA HAD JURISDICTION TO
DETERMINE A DISPUTE BETWEEN THE IOWA RECEIVER OF AMERICAN LIFE
INSURANCE CO., ON THE ONE HAND, AND THE MICHIGAN AND TEXAS RECEIVERS,
ON THE OTHER,  FN1  AS RESPECTS THE TITLE TO, AND THE RIGHT TO
ADMINISTER, CERTAIN ASSETS OF THE COMPANY IN THE POSSESSION OF THE IOWA
RECEIVER.  THE DISTRICT COURT HELD THAT IT HAD JURISDICTION OVER THE
CONTROVERSY; AND IT MADE A DETERMINATION OF THE ISSUES ON THE MERITS. 
THE CIRCUIT COURT OF APPEALS, ONE JUDGE DISSENTING, REVERSED, 117 F.2D
811, HOLDING THAT, IN LIGHT OF SUCH CASES AS LION BONDING & SURETY CO.
V. KARATZ, 262 U.S. 77, THE SUIT IN THE DISTRICT COURT COULD NOT BE
MAINTAINED AND THAT THE BILL SHOULD BE DISMISSED "FOR WANT OF
JURISDICTION."  WE GRANTED THE PETITION FOR CERTIORARI BECAUSE AN
APPLICATION OF THE PRINCIPLES UNDERLYING UNITED STATES V. KLEIN, 303
U.S. 276, AND COMMONWEALTH TRUST CO. V. BRADFORD, 297 U.S. 613, WHICH
WERE DISREGARDED BY THE COURT BELOW, WOULD PROBABLY LEAD TO A DIFFERENT
RESULT. 

THE IOWA RECEIVER BROUGHT THE SUIT PURSUANT TO THE AUTHORITY AND
DIRECTION OF THE IOWA COURT.  IT IS BASED UPON DIVERSITY OF CITIZENSHIP
(JUDICIAL CODE, SEC. 24, 28 U.S.C. SEC. 41) AND SEEKS TO ENFORCE
AGAINST NONRESIDENT DEFENDANTS, AS AUTHORIZED BY SEC. 57 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 118, A "LEGAL OR EQUITABLE LIEN UPON OR
CLAIM TO" PERSONAL PROPERTY WITHIN THE DISTRICT WHERE THE SUIT IS
BROUGHT AND TO REMOVE AN "INCUMBRANCE OR LIEN OR CLOUD UPON THE TITLE"
TO SUCH PROPERTY.  THE BILL IN SUBSTANCE ALLEGED AND THE DISTRICT COURT
FOUND THAT THE IOWA RECEIVER WAS IN POSSESSION OF SECURITIES OF A FACE
AMOUNT IN EXCESS OF $3,000,000; THAT THOSE SECURITIES HAD BEEN
DEPOSITED WITH THE INSURANCE COMMISSIONER OF IOWA, PURSUANT TO STATUTES
OF IOWA AND CERTAIN REINSURANCE AGREEMENTS BETWEEN AMERICAN LIFE
INSURANCE CO. AND ITS IOWA PREDECESSOR, FOR PROTECTION OF THE POLICY
HOLDERS OF THE LATTER COMPANY ON ITS INSOLVENCY; THAT IOWA HAD TITLE TO
THOSE FUNDS AND THE IOWA RECEIVER HAD THE SOLE AND EXCLUSIVE RIGHT TO
ADMINISTER THEM.  THE DISTRICT COURT HELD THAT ALTHOUGH THE ACTION WAS
IN REM IT HAD NOT ONLY JURISDICTION OVER THE SUBJECT MATTER BUT ALSO
OVER THE DEFENDANTS, SINCE THEY ALL ANSWERED, AND SINCE TWO OF THEM
FILED COUNTERCLAIMS ASKING THAT THE SECURITIES IN POSSESSION OF THE
IOWA RECEIVER BE DELIVERED TO THEM, AND SINCE THE OTHER ASKED FOR
GENERAL EQUITABLE RELIEF.  ACCORDINGLY, IT ORDERED, INTER ALIA, THAT
THE MICHIGAN AND TEXAS RECEIVERS ACCOUNT FOR CERTAIN COLLECTIONS  FN2
WHICH THEY HAD MADE ON THE SECURITIES IN THE IOWA FUND; THAT THEY
DELIVER TO THE IOWA RECEIVER CERTAIN RECORDS PERTAINING TO THOSE
SECURITIES; THAT THE MICHIGAN RECEIVER DELIVER TO THE IOWA RECEIVER
CERTAIN RECORDS PERTAINING TO THE POLICIES PROTECTED BY THAT FUND; AND
THAT THE MICHIGAN AND TEXAS RECEIVERS BE ENJOINED FROM MAKING
COLLECTIONS ON THOSE SECURITIES AND FROM INTERFERING IN ANY WAY WITH
THE IOWA RECEIVER'S ADMINISTRATION OF THEM. 

WE EXPRESS NO OPINION ON THE MERITS OF THE CONTROVERSY.  NOR DO WE
PASS ON THE CONTENTION THAT LADEW V. TENNESSEE COPPER CO., 218 U.S.
357, PREVENTS THE ENTRY OF AN IN PERSONAM JUDGMENT IN THE CIRCUMSTANCES
OF THIS CASE.  FOR THE SOLE QUESTION PASSED UPON BY THE COURT BELOW WAS
THE POWER AND PROPRIETY OF THE ACTION OF THE DISTRICT COURT IN TAKING
JURISDICTION OF THE CAUSE UNDER SEC. 57 OF THE JUDICIAL CODE. 

IT IS IMMATERIAL TO THIS INQUIRY WHETHER THE MICHIGAN RECEIVER
ACQUIRED NO INTEREST IN OR POWER OVER ASSETS OUTSIDE OF MICHIGAN (BOOTH
V. CLARK, 17 HOW.  322), OR, AS HELD BY THE COURT BELOW, WAS THE
STATUTORY SUCCESSOR UNDER MICHIGAN LAW OF AMERICAN LIFE INSURANCE CO.
AND AS SUCH HAD TITLE TO ALL OF ITS ASSETS WHEREVER SITUATED.  RELFE V.
RUNDLE, 103 U.S. 222, 225; CLARK V. WILLIARD, 292 U.S. 112, 120.  CF.
CONVERSE V. HAMILTON, 224 U.S. 243.  EVEN THOUGH THE LATTER WERE TRUE,
CLAIMANTS ENTITLED TO THE BENEFITS OF THE FUND IN IOWA MIGHT PURSUE
THEIR SUITS AND REMEDIES AGAINST IT IN DEROGATION OF THE CLAIM OF THE
MICHIGAN RECEIVER, IF THAT WERE IOWA'S POLICY.  CLARK V. WILLIARD, 294
U.S. 211.  THAT IS THE ASSERTED IOWA POLICY HERE.  THE IOWA RECEIVER IS
IN POSSESSION OF THE SECURITIES IN QUESTION.  HE SEEKS, WITH THE
APPROVAL OF THE IOWA COURT, AN AUTHORITATIVE DETERMINATION BY THE
FEDERAL COURT OF THE QUESTION WHETHER UNDER IOWA LAW THOSE SECURITIES
AND THE COLLECTIONS THEREON SHOULD NOT BE HELD FOR THE SPECIAL CLASS OF
CLAIMANTS FOR WHOM THE FUND WAS ALLEGEDLY ESTABLISHED.  THE FEDERAL
COURT HAS THE POWER TO RESOLVE THE CONTROVERSY.  AND THERE IS NO
CONSIDERATION OF JUDICIAL ADMINISTRATION, BASED ON APPROPRIATE
DEFERENCE TO THE STATE COURTS, WHY IT SHOULD NOT EXERCISE IT. 

LION BONDING & SURETY CO. V. KARATZ, SUPRA, DOES NOT STAND IN THE
WAY.  THERE THE FEDERAL COURT, THROUGH ITS RECEIVERS, ASSUMED COMMAND
OVER PROPERTY WHICH WAS IN THE POSSESSION OF THE STATE COURT.  THAT
ACTION WAS TAKEN IN VIOLATION OF THE WELL-SETTLED PRINCIPLE (PP. 88-89)
THAT "WHERE A COURT OF COMPETENT JURISDICTION HAS, BY APPROPRIATE
PROCEEDINGS, TAKEN PROPERTY INTO ITS POSSESSION THROUGH ITS OFFICERS,
THE PROPERTY IS THEREBY WITHDRAWN FROM THE JURISDICTION OF ALL OTHER
COURTS."  SUCH POSSESSION OF THE RES BY THE STATE COURT DISENABLED THE
FEDERAL COURT FROM EXERCISING ANY CONTROL OVER IT.  BUT A DETERMINATION
OF THE ISSUES IN THIS CONTROVERSY DOES NOT NECESSARILY INVOLVE A
DISTURBANCE OF THE POSSESSION OR CONTROL OF THE MICHIGAN AND TEXAS
COURTS OVER THE PROPERTY IN THEIR POSSESSION.  IT WOULD INDEED HAVE NO
SUCH NECESSARY CONSEQUENCE EVEN THOUGH THE SECURITIES IN QUESTION WERE
IN THEIR POSSESSION.  AS HELD IN UNITED STATES V. KLEIN, SUPRA, P. 281,
A STATE COURT MAY PROPERLY ADJUDICATE RIGHTS IN PROPERTY IN POSSESSION
OF A FEDERAL COURT  FN3  AND RENDER ANY JUDGMENT "NOT IN CONFLICT WITH
THAT COURT'S AUTHORITY TO DECIDE QUESTIONS WITHIN ITS JURISDICTION AND
TO MAKE EFFECTIVE SUCH DECISIONS BY ITS CONTROL OF THE PROPERTY."  AND
SEE RIEHLE V. MARGOLIES, 279 U.S. 218, 224-226.  THE SAME PROCEDURE MAY
BE FOLLOWED BY A FEDERAL COURT WITH RESPECT TO PROPERTY IN THE
POSSESSION OF A STATE COURT.  GENERAL BAKING CO. V. HARR, 300 U.S. 433;
COMMONWEALTH TRUST CO. V. BRADFORD, SUPRA, 297 U.S. 613; WATERMAN V.
CANAL-LOUISIANA BANK & TRUST CO., 215 U.S. 33; INGERSOLL V. CORAM, 211
U.S. 335; BYERS V. MCAULEY, 149 U.S. 608, 620.  THE APPROPRIATE
EXERCISE OF THE DISCRETION OF A FEDERAL COURT OF EQUITY MAY REQUIRE IT
TO REFUSE EVEN TO ADJUDICATE RIGHTS IN SPECIFIC PROPERTY IF THE STATE
COURT HAS ALREADY UNDERTAKEN SUCH A DETERMINATION.  KELLEAM V. MARYLAND
CASUALTY CO., 312 U.S. 377, 382.  FURTHERMORE, THE FEDERAL COURT MAY
NOT "SEIZE AND CONTROL THE PROPERTY WHICH IS IN THE POSSESSION OF THE
STATE COURT" NOR INTERFERE WITH THE STATE COURT OR ITS FUNCTIONS. 
WATERMAN V. CANAL-LOUISIANA BANK & TRUST CO., SUPRA, PP. 44, 45;
PRINCESS LIDA V. THOMPSON, 305 U.S. 456.  SHORT OF THAT, HOWEVER, THE
FEDERAL COURT MAY GO.  CF. OAKES V. LAKE, 290 U.S. 59. 

TESTED BY THOSE STANDARDS, ASSUMPTION OF JURISDICTION BY THE FEDERAL
COURT WAS WHOLLY PROPER.  A DETERMINATION BY IT OF THE RIGHTS OF THE
PARTIES IN THE RES COULD BE HAD "WITH PROPER REGARD FOR THE RIGHTFUL
INDEPENDENCE OF STATE GOVERNMENTS IN CARRYING OUT THEIR DOMESTIC
POLICY" (PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, 185) AND IN FULL
RECOGNITION OF THE NECESSITY FOR "HARMONIOUS COOPERATION OF FEDERAL AND
STATE TRIBUNALS."  PRINCESS LIDA V. THOMPSON, SUPRA, P. 466.  WE REPEAT
THAT NEITHER MICHIGAN NOR TEXAS IS ENTITLED TO THE SECURITIES IF SUCH A
DISPOSITION OF THEM WOULD CONTRAVENE IOWA LAW.  A DETERMINATION OF THE
NATURE AND THE EXTENT OF THE RIGHTS OF IOWA, AND ITS RECEIVER, IN THE
SECURITIES CLEARLY WOULD NOT CONSTITUTE AN INTERFERENCE WITH THE
JURISDICTION OF THE MICHIGAN AND TEXAS COURTS.  FOR EVEN IF THOSE
COURTS WERE IN POSSESSION OF THE FUND, THEIR JURISDICTION WOULD NOT BE
SO EXCLUSIVE AS TO BAR AN ADJUDICATION BY THE FEDERAL COURT OF THE
RIGHTS OF A CLAIMANT TO THE RES OR THE QUANTUM OF HIS INTEREST IN IT.
UNITED STATES V. KLEIN, SUPRA.  IT FOLLOWS A FORTIORI THAT WHERE, AS
HERE, THEY ARE NOT IN POSSESSION OF THE RES, SUCH A DECREE OF THE
FEDERAL COURT IS PROPER.  THOUGH BINDING ON THE PARTIES, BOTH AS
RESPECTS THEIR RIGHTS TO THE FUND AND THE COLLECTIONS THEREON, IT IS
NOT DISRUPTIVE OF ORDERLY ADMINISTRATION BY THE STATE COURTS NOR
CONDUCIVE TO UNSEEMLY COLLISIONS BETWEEN THE STATE AND FEDERAL
AUTHORITIES.  FOR, UNLIKE THE SITUATION IN KELLEAM V. MARYLAND CASUALTY
CO., SUPRA, THE STATE COURT WHICH HAS COMMAND OVER THE RES HAS NOT ONLY
NOT UNDERTAKEN AN ADJUDICATION OF THE CONTROVERSY; IT HAS REFERRED THE
MATTER TO THE FEDERAL COURT. 

WHETHER THE SCOPE OF THE DECREE ENTERED BY THE DISTRICT COURT WAS
PROPER WE DO NOT DECIDE.  WE ONLY HOLD THAT THE DISTRICT COURT HAD
JURISDICTION TO RESOLVE THE CONTROVERSY UNDER SEC. 57 OF THE JUDICIAL
CODE.  THE CIRCUIT COURT OF APPEALS SHOULD HAVE DECIDED WHAT RIGHTS,
UNDER IOWA LAW, IOWA AND ITS RECEIVER HAD TO THE SECURITIES AND THE
COLLECTIONS THEREON, AND WHETHER THE DECREE ENTERED BY THE DISTRICT
COURT WAS KEPT WITHIN THE APPROPRIATE LIMITS.  SINCE THE CIRCUIT COURT
OF APPEALS DID NOT DECIDE THOSE QUESTIONS, WE REVERSE ITS JUDGMENT AND
REMAND THE CAUSE TO IT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

FN1  THE IOWA RECEIVER ALSO SOUGHT RELIEF AGAINST RESPONDENT AMERICAN
UNITED LIFE INSURANCE CO. WHICH, AFTER INSTITUTION OF THE RECEIVERSHIP
PROCEEDINGS AND THE APPOINTMENT OF RECEIVERS FOR AMERICAN LIFE
INSURANCE CO., ENTERED INTO A WRITTEN AGREEMENT FOR THE REINSURANCE OF
THE BUSINESS OF AMERICAN LIFE INSURANCE CO. AND ISSUED A CERTIFICATE OF
ASSUMPTION FOR ALL INSURANCE POLICIES OUTSTANDING OF AMERICAN LIFE
INSURANCE CO. WE MENTION THE FACT WITHOUT MORE, BECAUSE THE PRESENCE OF
THAT RESPONDENT IS NOT MATERIAL TO THE JURISDICTIONAL ASPECTS OF THE
CASE WITH WHICH WE ARE HERE SOLELY CONCERNED. 

FN2  THE MICHIGAN RECEIVER HAD BEEN COLLECTING IN MICHIGAN, AND THE
TEXAS RECEIVER IN TEXAS, PRINCIPAL AND INCOME ON THE SECURITIES
DEPOSITED IN IOWA, FROM OBLIGORS RESIDING IN THEIR RESPECTIVE STATES. 
CERTAIN REMITTANCES HAVE BEEN MADE BY THE MICHIGAN RECEIVER TO THE IOWA
RECEIVER PURSUANT TO AN AGREEMENT BETWEEN THEM.  THE TEXAS RECEIVER
HOLDS THE AMOUNTS COLLECTED IN TEXAS. 

FN3  AS TO BANKRUPTCY, SEE ISAACS V. HOBBS TIE & TIMBER CO., 282 U.S.
734; STRATON V. NEW, 283 U.S. 318.    MR. JUSTICE ROBERTS DID NOT
PARTICIPATE IN THE DECISION OF THIS CASE. 
..END :















IRVING TRUST CO. V. DAY, 314 U.S. 556 


NO. 51.  ARGUED DECEMBER 11, 1941.  - DECIDED JANUARY 5, 1942.  - 284
N.Y. 527, 32 N.E.2D 539, AFFIRMED. 


1.  WHERE A STATE STATUTE IS CHALLENGED AS VIOLATIVE OF THE CONTRACT
CLAUSE OF THE FEDERAL CONSTITUTION, THE EXISTENCE OF THE CONTRACT AND
THE NATURE AND EXTENT OF ITS OBLIGATIONS ARE FEDERAL QUESTIONS, AND THE
RULINGS OF THE STATE COURT THEREON ARE NOT CONCLUSIVE HERE.  P. 561. 

2.  A STATE IS NOT FORBIDDEN BY THE FEDERAL CONSTITUTION TO LIMIT,
CONDITION, OR EVEN ABOLISH THE POWER OF TESTAMENTARY DISPOSITION OVER
PROPERTY WITHIN ITS JURISDICTION.  P. 562. 

3.  SECTION 18 OF THE NEW YORK DECEDENT ESTATE LAW, WHICH, IN THE
CASE OF WILLS THEREAFTER EXECUTED, GIVES TO A SURVIVING SPOUSE A RIGHT
OF ELECTION TO TAKE AS IN INTESTACY, HELD NOT AN UNCONSTITUTIONAL
IMPAIRMENT OF THE OBLIGATION OF A PREVIOUSLY EXECUTED WAIVER BY THE
SURVIVING SPOUSE OF ANY RIGHT IN THE ESTATE OF THE DECEDENT, AND NOT
INCONSISTENT WITH DUE PROCESS OF LAW, WHERE, SUBSEQUENTLY TO THE
ENACTMENT OF THE SECTION, THE DECEDENT EXECUTED A CODICIL TO HIS WILL
AND THEREBY MADE THE SECTION OPERATIVE.  P. 562. 

IRVING TRUST CO. ET AL., EXECUTORS, ET AL. V. DAY, EXECUTOR. 

APPEAL FROM THE SURROGATE'S COURT, KINGS COUNTY, NEW YORK. 

APPEAL FROM A DECREE, ENTERED ON REMITTITUR, SUSTAINING THE RIGHT OF
APPELLEE'S DECEDENT TO ELECT UNDER SEC. 18 OF THE NEW YORK DECEDENT
ESTATE LAW TO TAKE AGAINST THE PROVISIONS OF A WILL.  SEE ALSO 171
MISC. 612, 13 N.Y. S.2D 76; 258 APP. DIV. 596, 17 N.Y. S.2D 316. 

BY PRESCRIBING A FORMALITY OF EXECUTION MORE EXACTING THAN THAT
REQUIRED BY PRE-EXISTING STATUTES, SEC. 18 VIOLATED VESTED CONTRACT
RIGHTS UNDER AGREEMENTS MADE BEFORE ITS EFFECTIVE DATE. 

AT THE TIME OF THE AGREEMENT IN THIS CASE, A CONTRACT BETWEEN A MAN
AND WOMAN, IN CONTEMPLATION OF MARRIAGE, BY WHICH EITHER ONE
RELINQUISHED ALL RIGHTS IN THE ESTATE OF THE OTHER, WAS FULLY
RECOGNIZED AND ENFORCED AND WAS NOT REQUIRED TO BE ACKNOWLEDGED. 

UNDER THE INSTRUMENT OF FEBRUARY 2, 1922, WHICH WAS ACTED UPON BY
MCGLONE AT THE TIME OF THE MARRIAGE ON FEBRUARY 4, 1922, HE ACQUIRED A
VESTED RIGHT TO EXCLUDE MRS. MCGLONE FROM CLAIMING ANY INTEREST IN HIS
ESTATE. 

THE RIGHTS CREATED BY THE AGREEMENT ARE WITHIN THE CONSTITUTIONAL
GUARANTY AGAINST IMPAIRMENT OF THE OBLIGATIONS OF CONTRACT AND TAKING
OF PROPERTY WITHOUT DUE PROCESS OF LAW. 

THE AGREEMENT CONSTITUTED A DELIBERATE AND INFORMED ABANDONMENT OF
KNOWN RIGHTS.  MCGLONE ALTERED HIS POSITION RELYING THEREON.  MRS.
MCGLONE WAS ESTOPPED FROM ASSERTING THE RIGHT TO ELECT TO TAKE AGAINST
HIS LAST WILL AND TESTAMENT. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL QUESTION PRESENTED UPON THIS APPEAL IS WHETHER SEC. 18 OF
THE NEW YORK DECEDENT ESTATE LAW WORKS AN IMPAIRMENT OF THE OBLIGATION
OF CONTRACT, FORBIDDEN BY ARTICLE I, SEC. 10 OF THE CONSTITUTION, OR A
DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS, FORBIDDEN BY THE
FOURTEENTH AMENDMENT. 

THE INSTRUMENT WHICH APPELLANTS CLAIM EMBODIES A CONTRACT WHICH HAS
BEEN IMPAIRED, AND UNDER WHICH THEY CLAIM PROPERTY RIGHTS, READS AS
FOLLOWS: 

"I, HELENA DAY SNYDER, BEING OF SOUND MIND AND IN POSSESSION OF ALL
MY FACULTIES, ON THE EVE OF MY MARRIAGE TO JOHN J. MCGLONE, IN LONDON,
ENGLAND, ON FEBRUARY 4TH, 1922, WISH TO RECORD, OF MY FREE WILL, THAT,
AS I ALREADY POSSESS, IN MY OWN RIGHT, AMPLE OF THIS WORLD'S GOODS IN
THE WAY OF A FORTUNE OF MY OWN, AS A COMPLIMENT TO MY AFORESAID
HUSBAND, AND FOR OTHER GOOD AND SUFFICIENT REASONS, I HEREBY,
VOLUNTARILY AND IRREVOCABLY RENOUNCE ALL RIGHT, TITLE AND INTEREST I
MIGHT, LEGALLY OR OTHERWISE, HAVE IN ANY ESTATE, REAL OR PERSONAL, OF
WHICH MY SAID HUSBAND TO BE, JOHN J. MCGLONE, MIGHT DIE SEIZED." 

APPELLEE'S DECEDENT, HELENA DAY SNYDER, WHO DIED IN THE COURSE OF
THIS LITIGATION, EXECUTED THIS INSTRUMENT IN LONDON TWO DAYS BEFORE HER
MARRIAGE TO JOHN J. MCGLONE, APPELLANTS' DECEDENT.  THE LAWS OF NEW
YORK AT THE TIME GAVE TO A WIDOW DOWER RIGHTS IN HER HUSBAND'S REAL
ESTATE, BUT, EXCEPT FOR RESTRICTIONS ON CHARITABLE GIFTS NOT INVOLVED
HERE, LEFT HIM OTHERWISE FREE TO MAKE TESTAMENTARY DISPOSITION OF ALL
HIS PROPERTY TO STRANGERS. 

ON AUGUST 21, 1930, MCGLONE EXECUTED A WILL, ONE CLAUSE OF WHICH
RECITED HELENA'S WAIVER BUT "NEVERTHELESS" MADE A BEQUEST OF $2,000 TO
HER AS A "SLIGHT TOKEN" OF HIS AFFECTION AND ADMIRATION.  THE
LEGISLATION COMPLAINED OF, GIVING A TESTATOR'S SURVIVING SPOUSE A RIGHT
OF ELECTION TO TAKE AGAINST THE WILL, HAD BEEN ENACTED AS SEC. 18 OF
THE DECEDENT ESTATE LAW ON MARCH 29, 1929, BUT IT DID NOT BECOME
EFFECTIVE UNTIL SEPTEMBER 1, 1930, A FEW DAYS AFTER MCGLONE EXECUTED
HIS WILL.  FN1  IT PERMITTED WAIVER BY A SPOUSE OR PROSPECTIVE SPOUSE
OF THE PROTECTION THUS AFFORDED, BUT IN ORDER TO BE EFFECTIVE THE
WAIVER WAS REQUIRED TO BE "BY AN INSTRUMENT SUBSCRIBED AND DULY
ACKNOWLEDGED."  FN2  THE INSTRUMENT SIGNED BY HELENA WAS NOT
ACKNOWLEDGED, AND THE NEW LEGISLATION WAS LIMITED IN OPERATION TO WILLS
EXECUTED AFTER ITS EFFECTIVE DATE. 

MCGLONE SO ACTED AS TO BRING HIS ESTATE UNDER THIS NEW LEGISLATION. 
ON JULY 6, 1934, HE EXECUTED A CODICIL TO HIS WILL WHICH, ALTHOUGH IT
DID NOT DISTURB THE PROVISION MADE FOR HIS WIFE IN HIS EARLIER WILL,
HAD THE EFFECT OF BRINGING THE ENTIRE WILL, MODIFIED AND REPUBLISHED,
WITHIN THE PROVISIONS OF THE NEW LAW  FN3  AND THUS, ACCORDING TO THE
TERMS OF SEC. 18, OF GIVING HER A RIGHT OF ELECTION TO TAKE UNDER THE
STATUTE AND AGAINST THE WILL. 

HELENA SOUGHT TO EXERCISE THIS RIGHT, AND THUS PRECIPITATED THE
PRESENT LITIGATION, IN WHICH THE QUOTED INSTRUMENT WAS PLEADED AS A BAR
TO THE RIGHT.  THE SURROGATE HELD THAT THE INSTRUMENT WAS NOT A
CONTRACT, 171 MISC. 612, 13 N.Y.S.2D 76; THE APPELLATE DIVISION HELD
THAT IT WAS, 258 APP. DIV. 596, 17 N.Y.S.2D 316; AND THE NEW YORK COURT
OF APPEALS ASSUMED, WITHOUT DECIDING, THAT, APART FROM THE EFFECT OF
SEC. 18 OF THE DECEDENT ESTATE LAW, IT WAS A BINDING CONTRACT, VALIDLY
EXECUTED, AND ENTITLED TO THE PROTECTION OF THE CONSTITUTIONAL
PROVISIONS HERE INVOKED.  THE COURT OF APPEALS HELD, HOWEVER, THAT "A
WIFE CANNOT BY AGREEMENT MAKE THE HUSBAND'S RIGHT CREATED BY LAW IMMUNE
FROM THE RIGHT OF THE STATE TO CHANGE THE LAW WHICH CREATED THE RIGHT
NOR WAIVE IN ADVANCE A RIGHT CREATED FOR HER BENEFIT IF THE LAW DOES
NOT PERMIT SUCH A WAIVER."  SECTION 18 WAS HELD TO CONFER A RIGHT OF
ELECTION UPON HELENA, AND TO BE CONSISTENT WITH THE REQUIREMENTS OF THE
CONTRACT AND DUE PROCESS CLAUSES OF THE FEDERAL CONSTITUTION.  MATTER
OF MCGLONE, 284 N.Y. 527, 533; 32 N.E.2D 539, 542. 

THE RELUCTANCE OF THE NEW YORK COURT OF APPEALS TO DECIDE THE
QUESTION WHETHER THE INSTRUMENT IN QUESTION DID CONSTITUTE A CONTRACT
IS QUITE UNDERSTANDABLE UPON CONSIDERATION OF THE RECORD MADE UP IN
THIS CASE.  IT APPEARS FROM THE FACE OF THE INSTRUMENT THAT IT WAS
PENNED ON STATIONERY OF THE SAVOY HOTEL, LONDON, BY AN UNIDENTIFIED
SCRIBE, AND THAT THE ONLY SIGNATURE WAS HELENA'S.  THE INSTRUMENT DOES
NOT RECITE MUTUALITY OF AGREEMENT.  IT RECITES NO CONSIDERATION, AND
NONE IS PROVED.  IT RATHER NEGATIVES THE RECEIPT OF CONSIDERATION, AND
THE LIKELIHOOD THAT MARRIAGE WAS SUCH, BY INDICATING THAT THE PARTIES
HAD ALREADY EXCHANGED PROMISES TO MARRY.  NOR IS THERE ANYTHING IN TEXT
OR CONTEXT TO HELP IDENTIFY THE SOURCE OF THE RIGHTS SAID TO BE
WAIVED.  NO CIRCUMSTANCES ARE ADDUCED TO SHOW THAT EITHER OF THE
PARTIES, ABOUT TO MARRY IN A FOREIGN LAND, THEN HAD NEW YORK AS A
DOMICILE OR WAS CONTRACTING WITH REFERENCE TO ITS LAWS, EITHER PRESENT
OR FUTURE.  THE MARRIAGE RECORD IN EVIDENCE SHOWS THAT HIS "RESIDENCE
AT THE TIME OF MARRIAGE" WAS "SAVOY HOTEL, LONDON" AND HERS WAS "THE
BEVERLEYS, THORNBURY ROAD, ISLEWORTH."  IF EITHER WAS DOMICILED
ELSEWHERE, THERE IS NOTHING TO INDICATE IT.  THERE IS NOT EVEN ANY
SHOWING THAT, AT THE TIME, EITHER OF THE PARTIES OWNED OR HAD ANY
EXPECTATION OF OWNING PROPERTY IN NEW YORK.  NO APPARENT HEED HAS BEEN
GIVEN TO THE USUAL RULE THAT THE LAW OF THE PLACE OF CONTRACTING
DETERMINES QUESTIONS OF FORM, CAPACITY TO CONTRACT, NECESSITY OF
CONSIDERATION, AND SOME ASPECTS OF THE DUTY OF PERFORMANCE.  BOTH SIDES
SEEM TO HAVE ASSUMED, BUT FOR REASONS THAT ARE NOT REVEALED, THAT THE
LAW OF NEW YORK GOVERNS THESE QUESTIONS.  THE NIGGARDLINESS OF THE
RECORD MAY BE DUE IN SOME PART TO THE RESTRICTION IMPOSED ON THE RIGHT
OF A SURVIVOR TO TESTIFY BY SEC. 347 OF THE NEW YORK CIVIL PRACTICE
ACT, BUT THIS DOES NOT WARRANT AN ILL-INFORMED GUESS BY THIS COURT AS
TO THE EXISTENCE OF A CONTRACT OR ITS MEANING UNDER PROPERLY APPLICABLE
RULES OF LAW. 

WHEN THIS COURT IS ASKED TO INVALIDATE A STATE STATUTE UPON THE
GROUND THAT IT IMPAIRS THE OBLIGATION OF A CONTRACT, THE EXISTENCE OF
THE CONTRACT AND THE NATURE AND EXTENT OF ITS OBLIGATION BECOME FEDERAL
QUESTIONS FOR THE PURPOSES OF DETERMINING WHETHER THEY ARE WITHIN THE
SCOPE AND MEANING OF THE FEDERAL CONSTITUTION, AND FOR SUCH PURPOSES
FINALITY CANNOT BE ACCORDED TO THE VIEWS OF A STATE COURT.  DOUGLAS V.
KENTUCKY, 168 U.S. 488, 502; RAILROAD COMMISSION V. EASTERN TEXAS R.
CO., 264 U.S. 79, 86-87; COOLIDGE V. LONG, 282 U.S. 582, 597; U.S.
MORTGAGE CO. V. MATTHEWS, 293 U.S. 232, 236; HIGGINBOTHAM V. BATON
ROUGE, 306 U.S. 535, 538.  IN ANY VIEW WE MIGHT TAKE OF THE
CONSTITUTIONAL QUESTIONS URGED HERE, WE SHOULD NOT REGARD THIS RECORD
AS AN ADEQUATE BASIS FOR INVALIDATING A STATE STATUTE.  BUT, LEST A
DECISION ON THIS GROUND BE TAKEN AS AN INVITATION TO FURTHER LITIGATION
IN THE NEW YORK COURTS AND IN THIS COURT, WE SHALL EMULATE THE
GENEROSITY SHOWN BY THE COURT OF APPEALS TO THE APPELLANTS AND ADOPT
ITS ASSUMPTION AS TO THE EXISTENCE AND NATURE OF THE CONTRACT FOR THE
PURPOSE OF DISPOSING OF THE OTHER QUESTIONS URGED. 

RIGHTS OF SUCCESSION TO THE PROPERTY OF A DECEASED, WHETHER BY WILL
OR BY INTESTACY, ARE OF STATUTORY CREATION, AND THE DEAD HAND RULES
SUCCESSION ONLY BY SUFFERANCE.  NOTHING IN THE FEDERAL CONSTITUTION
FORBIDS THE LEGISLATURE OF A STATE TO LIMIT, CONDITION, OR EVEN ABOLISH
THE POWER OF TESTAMENTARY DISPOSITION OVER PROPERTY WITHIN ITS
JURISDICTION.  MAGER V. GRIMA, 8 HOW.  490; UNITED STATES V. FOX, 94
U.S. 315; UNITED STATES V. PERKINS, 163 U.S. 625; CF. RANDALL V.
KREIGER, 23 WALL.  137, 148.  EXPECTATIONS OR HOPES OF SUCCESSION,
WHETHER TESTATE OR INTESTATE, TO THE PROPERTY OF A LIVING PERSON, DO
NOT VEST UNTIL THE DEATH OF THAT PERSON.  APPELLANTS CANNOT
SUCCESSFULLY ATTACK THE CONSTITUTIONALITY OF THE NEW LEGISLATION WHICH
WENT INTO EFFECT BEFORE MCGLONE'S DEATH, AND BECAME OPERATIVE ONLY AS
THE RESULT OF HIS OWN VOLUNTARY ACT. 

MCGLONE WAS FREE TO CONSENT TO A CANCELLATION OR REVOCATION OF
HELENA'S WAIVER, OR TO MAKE A VALID BEQUEST TO HER OF ALL OR ANY OF HIS
PROPERTY DESPITE IT.  FURTHER, HE COULD FREE HER OF THE RESTRAINTS OF
HER WAIVER BY VOLUNTARILY COMMITTING AN ACT TO WHICH THE APPLICABLE LAW
ATTACHED THAT CONSEQUENCE.  THIS IS WHAT HE DID BY EXECUTING THE
CODICIL OF JULY 6, 1934, VOLUNTARILY TAKING ADVANTAGE OF THE PRIVILEGE
OF FURTHER TESTAMENTARY DISPOSITION OFFERED BY THE LAWS OF NEW YORK. 
SO LONG AS MCGLONE STOOD ON THE WILL MADE BEFORE THE EFFECTIVE DATE OF
THE LEGISLATION, THE LAW ALLOWED HIM TO AVAIL HIMSELF OF THE FULL FORCE
AND EFFECT OF THE WAIVER.  GIVEN HIS CHOICE BETWEEN ADHERING TO ANY
WILL MADE BEFORE SEPTEMBER 1, 1930, OR OF BRINGING HIS ESTATE UNDER THE
NEW LAW, MCGLONE SAW FIT TO EXECUTE A FURTHER TESTAMENTARY DOCUMENT
AFTER THAT DATE AND THUS TO BRING THE NEW LEGISLATION INTO OPERATION AS
TO HIMSELF, HIS ESTATE AND SURVIVORS.  FOR THE PURPOSE OF CONSIDERING
THE APPLICATION OF THE CONTRACT AND DUE PROCESS CLAUSES OF THE FEDERAL
CONSTITUTION, THE CASE IS AS IF HE HAD MADE A VOLUNTARY LEGACY TO HIS
WIFE DESPITE HER WAIVER.  IF THE OBLIGATION OF THE WAIVER SUFFERED
IMPAIRMENT, IT WAS ONLY BECAUSE HE EXERCISED FURTHER TESTAMENTARY
PRIVILEGES WITH A CONDITION ATTACHED, AND THEREBY BROUGHT THOSE
CONSEQUENCES UNWITTINGLY OR INTENTIONALLY UPON HIMSELF AND HIS ESTATE. 

THE CONDITION CLEARLY WAS SUCH AS NEW YORK MIGHT, WITHOUT RESTRAINT
FROM THE FEDERAL CONSTITUTION, ANNEX TO THE PRIVILEGE OF MAKING A WILL
UNDER ITS LAW.  ITS EFFECT WAS TO CONTINUE AS OBLIGATIONS OF HIS ESTATE
SOCIAL RESPONSIBILITIES WHICH HE HAD ASSUMED DURING LIFE,  FN4 UNLESS
THEY HAD BEEN WAIVED WITH REQUIRED FORMALITY.  THE STATE COULD HAVE
CONDITIONED ANY FURTHER EXERCISE OF TESTAMENTARY POWER UPON GIVING A
RIGHT OF ELECTION TO THE SURVIVING SPOUSE REGARDLESS OF ANY WAIVER,
HOWEVER FORMALLY EXECUTED; AND HAVING RECOGNIZED THE BINDING EFFECT OF
A WAIVER, IT COULD CONDITION THAT RECOGNITION UPON ACKNOWLEDGMENT,
WHICH WAS NO DOUBT CONSIDERED A DESIRABLE SAFEGUARD AGAINST CASUAL,
INFORMAL, OR ILL-CONSIDERED ABANDONMENT OF STATUTORY PROTECTION, AS
WELL AS AGAINST OVERREACHING OR FRAUD.  AFFIRMED. 

FN1  SECTION 18-1 OF THE DECEDENT ESTATE LAW, ENACTED BY N.Y. LAWS OF
1929, C. 229, SEC. 4, PROVIDED: 

"WHERE A TESTATOR DIES AFTER AUGUST THIRTY-FIRST, NINETEEN HUNDRED
AND THIRTY, AND LEAVES A WILL THEREAFTER EXECUTED AND LEAVES SURVIVING
A HUSBAND OR WIFE, A PERSONAL RIGHT OF ELECTION IS GIVEN TO THE
SURVIVING SPOUSE TO TAKE HIS OR HER SHARE OF THE ESTATE AS IN
INTESTACY, SUBJECT TO THE LIMITATIONS, CONDITIONS AND EXCEPTIONS
CONTAINED IN THIS SECTION." 


"WHERE THE AGGREGATE OF THE PROVISIONS UNDER THE WILL FOR THE BENEFIT
OF THE SURVIVING SPOUSE INCLUDING THE PRINCIPAL OF A TRUST, OR A LEGACY
OR DEVISE, OR ANY OTHER FORM OF TESTAMENTARY PROVISION, IS LESS THAN
THE INTESTATE SHARE, THE SURVIVING SPOUSE SHALL HAVE THE LIMITED RIGHT
TO ELECT TO TAKE THE DIFFERENCE BETWEEN SUCH AGGREGATE AND THE AMOUNT
OF THE INTESTATE SHARE, AND THE TERMS OF THE WILL SHALL OTHERWISE
REMAIN EFFECTIVE." 

FN2  SECTION 18-9 READ AS FOLLOWS: 

"THE HUSBAND OR WIFE DURING THE LIFETIME OF THE OTHER MAY WAIVE THE
RIGHT OF ELECTION TO TAKE AGAINST A PARTICULAR LAST WILL AND TESTAMENT
BY AN INSTRUMENT SUBSCRIBED AND DULY ACKNOWLEDGED, OR MAY WAIVE SUCH
RIGHT OF ELECTION TO TAKE AGAINST ANY LAST WILL AND TESTAMENT OF THE
OTHER WHATSOEVER IN AN AGREEMENT OF SETTLEMENT SO EXECUTED, MADE BEFORE
OR AFTER MARRIAGE." 

IN THE FOLLOWING YEAR THE WORDS "OF SETTLEMENT" WERE DELETED FROM
THIS PROVISION, AND THE FOLLOWING SENTENCE WAS ADDED:  "AN AGREEMENT SO
EXECUTED MADE BEFORE THE TAKING EFFECT OF THIS SECTION WHEREIN A SPOUSE
HAS WAIVED OR RELEASED ALL RIGHTS IN THE ESTATE OF THE OTHER SPOUSE
SHALL BE DEEMED TO RELEASE THE RIGHT OF ELECTION GRANTED IN THIS
LAW, SEC. 2. 

FN4  THE COURT OF APPEALS HAS SAID OF THIS LEGISLATION: 

"AFTER SEPTEMBER 1, 1930, THE ABSENCE OF PROTECTION TO THE WIDOW
UNDER PRIOR LAWS GAVE WAY TO THE WIDOW'S RIGHT OF ELECTION TO TAKE A
SPECIFIC PART OF THE ESTATE AGAINST THE WILL.  THE INCONSISTENCY IN OUR
OLD LAW WHICH COMPELLED A MAN TO SUPPORT HIS WIFE DURING HIS LIFETIME
AND PERMITTED HIM TO CUT HER OFF WITH A DOLLAR AT HIS DEATH, HAS GIVEN
WAY TO A NEW PUBLIC POLICY WHICH NO LONGER PERMITS A TESTATOR TO
DISPOSE OF HIS PROPERTY AS HE PLEASES."  MATTER OF GREENBERG, 261 N.Y.
474, 478; 185 N.E. 704, 705. 

WHEN IT ENACTED SEC. 18 OF THE DECEDENT ESTATE LAW, NEW YORK AT THE
SAME TIME ABOLISHED FOR THE FUTURE THE ANCIENT ESTATES AND RIGHTS OF
DOWER AND CURTESY, AND MADE IMPORTANT CHANGES IN THE RULES AS TO
DESCENT AND DISTRIBUTION OF PROPERTY. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :


















MEILINK V. UNEMPLOYMENT COMM'N, 314 U.S. 564 


NO. 61.  ARGUED DECEMBER 17, 18, 1941.  - DECIDED JANUARY 5, 1942.  -
116 F.2D 330, AFFIRMED. 


THAT AN EMPLOYER WHO FAILS TO MAKE THE PAYMENTS REQUIRED OF HIM BY THE
ACT "SHALL BECOME ADDITIONALLY LIABLE FOR INTEREST ON SUCH PAYMENTS AT
THE RATE OF TWELVE PER CENT PER ANNUM."  HELD, THAT THE EXACTION OF
TWELVE PER CENT PER ANNUM IS NOT A "PENALTY" BUT IS "INTEREST" WITHIN
THE MEANING OF SEC. 57J OF THE BANKRUPTCY ACT, AND A CLAIM FOR THE FULL
AMOUNT THEREOF IS ALLOWABLE IN BANKRUPTCY.  P. 569. 

MEILINK, TRUSTEE IN BANKRUPTCY, V. UNEMPLOYMENT RESERVES COMMISSION OF
CALIFORNIA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 588, TO REVIEW THE REVERSAL OF A DECREE DENYING
IN PART A CLAIM IN BANKRUPTCY. 

ALLOWANCE OF INTEREST IN EXCESS OF 7% PER ANNUM WOULD PERMIT
RESPONDENT TO SHARE IN THE BANKRUPT'S ESTATE TO AN EXTENT NOT
REPRESENTED BY A PECUNIARY LOSS. 

MERELY CALLING THE CHARGE "INTEREST" CAN NOT CHANGE ITS CHARACTER IF
IT BE IN FACT A PENALTY.  UNITED STATES V. LAFRANCA, 282 U.S. 568, 572;
IN RE J. MENIST & CO., 290 F. 947, 949; IN RE DENVER & R.G.W.R. CO., 27
F.SUPP.  983; IN RE ASHLAND EMERY & CORUNDUM CO., 229 F. 829, 832. 

INTEREST ON DELINQUENT TAX PAYMENTS DUE TO A STATE OR ANY SUBDIVISION
THEREOF WILL NOT BE ALLOWED IN A BANKRUPTCY PROCEEDING IN EXCESS OF THE
GENERAL RATE OF INTEREST PERMITTED BY THE APPLICABLE STATE LAW.  NEW
YORK V. JERSAWIT, 263 U.S. 493; IN RE PRESSED STEEL CAR CO., 100 F.2D
147, 153; IN RE DENVER & R.G.W.R. CO., 27 F.SUPP.  983; IN RE 168 ADAMS
BUILDING CORP., 27 F.SUPP.  247, AFF'D 105 F.2D 704, CERT. DEN., 308
U.S. 632; IN RE A.E. FOUNTAIN, INC., 295 F. 873; IN RE WELLS, 4
F.SUPP.  329.  DISTINGUISHING BEARDSLEY & WOLCOTT MFG. CO., 82 F.2D
239; HORN V. BOONE CO., 44 F.2D 920; MARTIN CASE, 75 F.2D 618; UNITED
STATES V. CHILDS, 266 U.S. 304. 

FEDERAL AND OTHER CALIFORNIA STATE TAXING AUTHORITIES DEMAND ONLY SIX
PER CENT PER ANNUM INTEREST ON BANKRUPTCY PROOFS OF CLAIM. 

THE ATTORNEY GENERAL OF CALIFORNIA HAS HIMSELF CHARACTERIZED SEC. 45
OF THE CALIFORNIA UNEMPLOYMENT RESERVES ACT AS A PENALTY SECTION. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER IS THE TRUSTEE OF A BANKRUPT WHICH WAS INDEBTED TO THE
CALIFORNIA UNEMPLOYMENT RESERVES COMMISSION FOR CONTRIBUTIONS WHICH HAD
ACCRUED UNDER THE CALIFORNIA UNEMPLOYMENT RESERVES ACT.  SECTION 45 OF
THAT ACT PROVIDED THAT, IN THE EVENT OF DEFAULT IN PAYMENT OF
CONTRIBUTIONS DUE, THE EMPLOYER "SHALL BECOME ADDITIONALLY LIABLE FOR
INTEREST ON SUCH PAYMENTS AT THE RATE OF TWELVE PER CENT PER ANNUM FROM
THE DATE SUCH PAYMENT BECOMES DUE, BOTH PRINCIPAL AND INTEREST BEING
PAYABLE IN THE SAME MANNER AS THE CONTRIBUTIONS."  DEERING'S GEN. LAWS,
1937, ACT 8780D, SEC. 45.  THE COMMISSION FILED PROOF OF A PRIORITY
CLAIM IN THE BANKRUPTCY PROCEEDING FOR THE PRINCIPAL AMOUNT OF THE
ACCRUED CONTRIBUTIONS AND INTEREST THEREON AT THE RATE OF TWELVE PER
CENT. 

THE TRUSTEE PAID THE PRINCIPAL SUM WITH INTEREST AT SIX PER CENT, BUT
REFUSED TO PAY MORE, RELYING ON SEC. 57J OF THE BANKRUPTCY ACT, 11
U.S.C. SEC. 93J, WHICH PROVIDES THAT "DEBTS OWING TO THE UNITED STATES,
A STATE, A COUNTY, A DISTRICT, OR A MUNICIPALITY AS A PENALTY OR
FORFEITURE SHALL NOT BE ALLOWED, EXCEPT FOR THE AMOUNT OF THE PECUNIARY
LOSS SUSTAINED BY THE ACT, TRANSACTION, OR PROCEEDING OUT OF WHICH THE
PENALTY OR FORFEITURE AROSE, WITH REASONABLE AND ACTUAL COSTS
OCCASIONED THEREBY AND SUCH INTEREST AS MAY HAVE ACCRUED THEREON
ACCORDING TO LAW."  THE TRUSTEE ASSERTED THAT ANY EXACTION IN EXCESS OF
SIX PER CENT, WHICH HE CLAIMED WAS THE "REASONABLE AND CUSTOMARY RATE
OF INTEREST," WAS A PENALTY; THE BANKRUPTCY COURT DECREED THAT ALL
ABOVE SEVEN PER CENT (A COMMON, THOUGH NOT AN INVARIABLE, LEGAL RATE IN
CALIFORNIA) WAS A PENALTY AND REFUSED TO ALLOW SO MUCH OF THE CLAIM;
AND THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED ON THE
GROUND THAT NO PART OF THE TWELVE PER CENT WAS A PENALTY.  116 F.2D
330.  WE GRANTED CERTIORARI BECAUSE OF THE CONFLICT BETWEEN THIS
DECISION AND THAT OF THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT
IN IN RE PRESSED STEEL CAR CO. OF NEW JERSEY.  FN1 

PETITIONER SEEKS TO ESTABLISH THAT THE TWELVE PER CENT EXACTION HERE
IN QUESTION IS NOT "INTEREST" BY POINTING TO ARTICLE XX, SEC. 22 OF THE
CALIFORNIA CONSTITUTION, WHICH PROVIDES THAT, EXCEPT FOR SPECIFIED
INSTITUTIONS, THE RATE OF INTEREST ON LOANS, AND ON ACCOUNTS AFTER
DEMAND OR JUDGMENT, SHALL BE SEVEN PER CENT, AND LEAVES THE PARTIES
FREE TO CONTRACT IN WRITING FOR A RATE NOT EXCEEDING TEN PER CENT.  FN2
WE DO NOT UNDERSTAND THAT AS A MATTER OF STATE LAW THE CALIFORNIA
LEGISLATURE WAS THEREBY FORBIDDEN TO PRESCRIBE THE HIGHER RATE HERE
INVOLVED.  AND THE MERE DIFFERENCE IN RATES DOES NOT ESTABLISH THAT THE
TWELVE PER CENT RATE IS NOT "INTEREST" WITHIN THE MEANING OF SEC. 57J
OF THE BANKRUPTCY ACT. 

IT IS COMMON KNOWLEDGE THAT INTEREST RATES VARY NOT ONLY ACCORDING TO
THE GENERAL USE VALUE OF MONEY BUT ALSO ACCORDING TO THE HAZARD OF
PARTICULAR CLASSES OF LOANS.  DELINQUENT TAXPAYERS AS A CLASS ARE A
POOR CREDIT RISK; TAX DEFAULT, UNLESS AN INCIDENT OF LEGITIMATE TAX
LITIGATION, IS, TO THE EYE SENSITIVE TO CREDIT INDICATIONS, A SIGNAL OF
DISTRESS.  A RATE OF INTEREST ON TAX DELINQUENCIES WHICH IS LOW IN
COMPARISON TO THE TAXPAYER'S BORROWING RATE - IF HE CAN BORROW AT ALL -
IS A TEMPTATION TO USE THE STATE AS A CONVENIENT, IF INVOLUNTARY,
BANKER BY THE SIMPLE PRACTICE OF DEFERRING THE PAYMENT OF TAXES. 

ANOTHER VARIABLE IS THE AMOUNT NECESSARY TO COMPENSATE FOR THE
TROUBLE OF HANDLING THE ITEM.  THE LEGISLATURE MAY INCLUDE COMPENSATION
TO THE STATE FOR THE INCREASED COSTS OF ADMINISTRATION IN THE EXACTION
FOR DELAY IN PAYING TAXES WITHOUT THEREBY CHANGING IT FROM INTEREST TO
PENALTY. 

THESE FACTORS - RISK, AND THE EXPENSES OF HANDLING - ARE REFLECTED IN
THE INTEREST RATES PERMITTED BY CALIFORNIA TO CERTAIN TYPES OF
FINANCIAL INSTITUTIONS:  FOR EXAMPLE, CREDIT UNIONS MAY CHARGE INTEREST
AT THE RATE OF ONE PER CENT PER MONTH; FN3  PAWNBROKERS, AT TWO PER
CENT PER MONTH ON THE FIRST ONE HUNDRED DOLLARS OF INDEBTEDNESS; FN4
AND PERSONAL PROPERTY BROKERS, TWO AND ONE-HALF PER CENT PER MONTH ON
THE FIRST THREE HUNDRED DOLLARS.  FN5  A DIFFERENTIATION OF TREATMENT
FOR PARTICULAR TYPES OF LOANS SIMILAR IN PRINCIPLE IS COMMONLY MADE BY
OTHER STATES.  FN6 

NEW YORK V. JERSAWIT, 263 U.S. 493, IS THOUGHT BY PETITIONER TO
REQUIRE A DECISION IN HIS FAVOR.  THAT CASE INVOLVED A NEW YORK STATUTE
VISITING TAX DELINQUENTS WITH AN ADDITIONAL LIABILITY OF TEN PER CENT
OF THE TAX, AND ADDING THERETO A FURTHER LIABILITY OF ONE PER CENT PER
MONTH, WHICH WAS NOT DENOMINATED INTEREST.  THE CIRCUIT COURT OF
APPEALS HAD HELD THAT SUCH PROVISION WAS PENAL, BUT HAD ALLOWED
INTEREST AT THE USUAL LEGAL RATE ON THE THEORY THAT IT REPRESENTED
ACTUAL DAMAGE.  IN RE AJAX DRESS CO., 290 F. 950.  THIS COURT, SPEAKING
THROUGH MR. JUSTICE HOLMES, SAID: 

"THERE CAN BE NO DOUBT THAT THE ADDITIONAL TEN PER CENTUM CHARGED FOR
FAILURE TO PAY BY JANUARY 1 IS A PENALTY, DISALLOWED BY THE BANKRUPTCY
ACT, SEC. 57J, BUT IT IS URGED THAT THE ONE PER CENTUM FOR EACH MONTH
OF DEFAULT IS STATUTORY INTEREST AND THAT THE STATE IS ENTITLED TO THAT
AND OTHERWISE WOULD BE ENTITLED TO NONE.  AS THE ONE PER CENTUM IS MORE
THAN THE VALUE OF THE USE OF THE MONEY AND IS ADDED BY THE STATUTE TO
THE TEN TO MAKE A SINGLE SUM IT MUST BE TREATED AS PART OF ONE CORPUS
AND MUST FALL WITH THAT.  WE PRESUME THAT IN THIS EVENT THE STATE DOES
NOT OBJECT TO RECEIVING THE SIMPLE INTEREST ALLOWED.  THAT PART OF THE
ORDER WILL STAND."  263 U.S. AT 496. 

HERE THE EXACTION COMPUTED ACCORDING TO LAPSE OF TIME IS NOT LUMPED
TOGETHER WITH ANOTHER PERCENTAGE COMPUTED WITHOUT REFERENCE TO LAPSE OF
TIME; HERE THE EXACTION IS DENOMINATED INTEREST BY THE STATUTE, AND
THERE IT WAS NOT; AND WE CANNOT BE SO CONFIDENT HERE THAT TWELVE PER
CENT "IS MORE THAN THE VALUE OF THE USE OF THE MONEY," OR OF THE
VALIDITY OF THE IMPLIED MAJOR PREMISE THAT AN EXACTION IN EXCESS OF
SUCH VALUE CANNOT BE MERELY AN INTEREST CHARGE.  FN7 

THE DECISION WHICH CONTROLS HERE IS THE MORE RECENT ONE OF UNITED
STATES V. CHILDS, 266 U.S. 304, WHERE THE STATUTE SEPARATELY
DENOMINATED A FLAT FIVE PER CENT EXACTION AS A PENALTY, AND AN
ADDITIONAL ONE OF ONE PER CENT A MONTH AS INTEREST.  THE LATTER WAS
HELD TO BE "INTEREST" WITHIN THE MEANING OF SEC. 57J OF THE BANKRUPTCY
ACT.  THE DISTINCTION FROM THE FACT THAT THE EXACTION IN THAT CASE WAS
BY THE UNITED STATES AND IN THIS CASE BY A STATE CALLS FOR NO
DIFFERENCE IN RESULT.  WE MUST GIVE CREDIT TO A STATE LEGISLATURE
ACTING WITHIN ITS CONSTITUTIONAL SPHERE LIKE THAT ACCORDED TO CONGRESS
ACTING IN ITS CONSTITUTIONAL SPHERE.  AND THE DISTINCTION WHICH
CONGRESS MADE IN THE LEGISLATION CONSIDERED IN THE CHILDS CASE, AND IN
OTHER REVENUE LEGISLATION, BETWEEN PENALTY AS A FIXED AD VALOREM AMOUNT
TAKING NO ACCOUNT OF TIME, AND INTEREST WHICH DOES DEPEND ON TIME, IS
PERSUASIVE THAT ITS USE OF THE WORD "PENALTY" IN THE BANKRUPTCY ACT
WILL BEAR A LIKE DIFFERENTIATION FROM INTEREST. 

FINALLY, IT MAY BE OBSERVED THAT CONGRESS ITSELF HAS PROVIDED IN THE
DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT THAT, IN THE EVENT
CONTRIBUTIONS ARE NOT PAID WHEN DUE, "THERE SHALL BE ADDED, AS PART OF
THE CONTRIBUTIONS, INTEREST AT THE RATE OF 1 PER CENTUM PER MONTH." 
D.C. CODE (SUPP. V. 1939) TIT. 8, SEC. 314(C).  AFFIRMED. 

FN1  100 F.2D 147, CERTIORARI DENIED SUB NOM. WICK V. NEW JERSEY, 306
U.S. 648. 

FN2  THIS READS IN PART AS FOLLOWS: 

"THE RATE OF INTEREST UPON THE LOAN OR FORBEARANCE OF ANY MONEY,
GOODS OR THINGS IN ACTION, OR ON ACCOUNTS AFTER DEMAND OR JUDGMENT
RENDERED IN ANY COURT OF THE STATE, SHALL BE SEVEN PER CENT PER ANNUM
BUT IT SHALL BE COMPETENT FOR THE PARTIES TO ANY LOAN OR FORBEARANCE OF
ANY MONEY, GOODS OR THINGS IN ACTION TO CONTRACT IN WRITING FOR A RATE
OF INTEREST NOT EXCEEDING TEN PER CENT PER ANNUM." 

EXPRESSLY EXCEPTED ARE BUILDING AND LOAN ASSOCIATIONS, INDUSTRIAL
LOAN COMPANIES, CREDIT UNIONS, PAWNBROKERS, PERSONAL PROPERTY BROKERS,
STATE AND NATIONAL BANKS, AND COOPERATIVE ASSOCIATIONS. 

FN3  DEERING'S GEN. LAWS, 1939 SUPP., ACT 1887, SEC. 3(5). 

FN4  DEERING'S GEN. LAWS, 1939 SUPP., ACT 5826, SEC. 2. 

FN5  DEERING'S GEN. LAWS, 1939 SUPP., ACT 5825 (2D), SEC. 17. 

FN6  CLARK, FINANCING THE CONSUMER (1933), APPENDIX I. 

FN7  COMPARE THE FOLLOWING EXACTIONS, PROVIDED BY THE VARIOUS
UNEMPLOYMENT COMPENSATION ACTS FOR NON-PAYMENT OF CONTRIBUTIONS DUE: 

"INTEREST" AT 6% PER ANNUM OR ITS EQUIVALENT ON A MONTHLY BASIS:
UNITED STATES, DELAWARE, FLORIDA, GEORGIA, INDIANA, MASSACHUSETTS, NEW
YORK, NORTH CAROLINA, OREGON, UTAH, WISCONSIN; AT 8%:  OHIO; AT 81/100%
PER MONTH:  KANSAS; AT 9%:  CONNECTICUT, MICHIGAN; AT 12%:  DISTRICT OF
COLUMBIA, ALABAMA, ARIZONA, ARKANSAS, COLORADO, ILLINOIS, IOWA,
LOUISIANA, MAINE, MARYLAND, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA,
NEBRASKA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NORTH DAKOTA,
OKLAHOMA, PENNSYLVANIA, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA,
TENNESSEE, VERMONT, VIRGINIA, WASHINGTON, WEST VIRGINIA, WYOMING. 

"PENALTY" AT 12%:  KENTUCKY, TAXES; AT 2% TO 25% PER MONTH:  IDAHO. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :

















SCAIFE CO. V. COMMISSIONER, 314 U.S. 459 


NO. 57.  ARGUED DECEMBER 11, 1941.  - DECIDED DECEMBER 22, 1941.  - 117
F.2D 572, AFFIRMED. 


1.  BY THE TERMS OF THE CAPITAL STOCK TAX PROVISIONS OF THE REVENUE
ACT OF 1935, AN ERRONEOUS VALUATION OF ITS CAPITAL STOCK MADE BY A
CORPORATION IN ITS "FIRST RETURN" CAN NOT BE CORRECTED BY AN AMENDED
RETURN FILED MORE THAN 30 DAYS AFTER THE STATUTORY DUE DATE AND WITHIN
THE 60 DAYS PERIOD FOR WHICH AN EXTENSION MIGHT HAVE BEEN HAD UNDER THE
STATUTE AND THE TREASURY REGULATIONS, BUT WHERE NO SUCH EXTENSION WAS
APPLIED FOR OR GRANTED.  P. 461. 

2.  IN VIEW OF THE EXPRESS COMMAND OF THE STATUTE, RELIEF AGAINST
SUCH A MISTAKE CAN NOT BE GRANTED BY A COURT OF EQUITY.  P. 462. 

SCAIFE COMPANY V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 313 U.S. 557, TO REVIEW A JUDGMENT SUSTAINING A DECISION
OF THE BOARD OF TAX APPEALS, 41 B.T.A. 278, DECLINING TO REDETERMINE AN
EXCESS PROFITS TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ON JULY 29, 1936, PETITIONER FILED ITS CAPITAL STOCK TAX  FN1  RETURN
FOR THE PERIOD ENDED JUNE 30, 1936.  THIS RETURN WAS PREPARED BY
PETITIONER'S TREASURER AND SIGNED BY PETITIONER'S PRESIDENT.  THE
TREASURER HAD BEEN INSTRUCTED BY PETITIONER'S VICE-PRESIDENT TO PLACE
UPON THE CAPITAL STOCK A VALUE OF $1,000,000.  BY MISTAKE THE VALUE WAS
DECLARED AT $600,000.  THIS ERROR WAS NOT NOTED BY PETITIONER'S
PRESIDENT WHEN HE SIGNED THE RETURN.  WHEN THE ERROR WAS LATER
DISCOVERED, A NEW RETURN WAS PREPARED DECLARING THE VALUE OF THE STOCK
TO BE $1,000,000.  THIS RETURN WAS LODGED WITH THE COLLECTOR ON
SEPTEMBER 3, 1936, AND A REMITTANCE OF $400.00 TO COVER THE ADDITIONAL
CAPITAL STOCK TAX COMPUTED ON THE HIGHER VALUATION WAS TENDERED.  THE
COLLECTOR REFUSED TO ACCEPT THE AMENDED RETURN  FN2  AND THE REMITTANCE
OF THE ADDITIONAL $400.00.  PETITIONER THEN FILED A PETITION WITH THE
BOARD OF TAX APPEALS FOR A REDETERMINATION OF ITS EXCESS PROFITS TAX
FN3  FOR 1936, CLAIMING THAT THAT TAX SHOULD BE COMPUTED ON THE BASIS
OF A DECLARED VALUE FOR ITS CAPITAL STOCK OF $1,000,000.  THE BOARD
SUSTAINED THE ACTION OF THE COMMISSIONER.  41 B.T.A. 278.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  117 F.2D 572.  WE GRANTED THE PETITION FOR
CERTIORARI BECAUSE OF A CONFLICT BETWEEN THAT HOLDING AND THE DECISION
OF THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT IN LERNER STORES
CORP. V. COMMISSIONER, 118 F.2D 455. 

SEC. 105(F) OF THE REVENUE ACT OF 1935(49 STAT. 1014, 1018) PROVIDES
THAT THE ADJUSTED DECLARED VALUE OF THE TAXPAYER'S CAPITAL STOCK SHALL
BE THE VALUE AS DECLARED IN THE "FIRST RETURN."  THE VALUE SO DECLARED
"CANNOT BE AMENDED."  SEC. 105(F).  THE RETURN MUST BE MADE WITHIN ONE
MONTH AFTER THE CLOSE OF THE YEAR WITH RESPECT TO WHICH THE TAX IS
IMPOSED.  SEC. 105(D).  WHILE THE COMMISSIONER BY RULES AND REGULATIONS
"MAY EXTEND THE TIME FOR MAKING" THE RETURN, NO EXTENSION SHALL BE FOR
MORE THAN SIXTY DAYS.  SEC. 105(D).  UNDER ART. 37(B) OF TREASURY
REGULATIONS 64(1936 ED.)  AN EXTENSION OF TIME FOR FILING THE RETURN
AND PAYING THE TAX SHALL BE GRANTED ONLY UPON WRITTEN APPLICATION UNDER
OATH FILED ON OR BEFORE THE STATUTORY DUE DATE AND ON A SHOWING OF
REASONABLE CAUSE FOR AN EXTENSION.  PETITIONER SOUGHT NO SUCH
EXTENSION.  IT DID, HOWEVER, FILE THE AMENDED RETURN WITHIN THE SIXTY
DAY PERIOD. 

WE AGREE WITH THE COURT BELOW THAT THE AMENDED RETURN WAS PROPERLY
DISALLOWED.  A "FIRST RETURN" MEANS A RETURN "FOR THE FIRST YEAR IN
WHICH THE TAXPAYER EXERCISES THE PRIVILEGE OF FIXING ITS CAPITAL STOCK
VALUE FOR TAX PURPOSES, AND INCLUDES A TIMELY AMENDED RETURN FOR THAT
YEAR."  HAGGAR CO. V. HELVERING, 308 U.S. 389, 395.  THE RETURN FILED
ON SEPTEMBER 3, 1936 WAS NOT TIMELY.  THE STATUTE IS NOT AMBIGUOUS. 
ONCE THE PERIOD FOR FILING THE "FIRST RETURN" HAS EXPIRED, THE VALUE
DECLARED "CANNOT BE AMENDED."  UNLESS AN EXTENSION HAD PREVIOUSLY BEEN
OBTAINED, THE PERIOD FOR FILING ENDED ONE MONTH AFTER THE CLOSE OF THE
TAXABLE YEAR, WHICH IN THIS CASE WAS JUNE 30, 1936.  UNLIKE THE
SITUATION IN HAGGAR CO. V. HELVERING, SUPRA, THE DUE DATE OF THE RETURN
HAD NOT BEEN EXTENDED.  NOR DID THE STATUTE MAKE MANDATORY OR AUTOMATIC
AN EXTENSION FOR SIXTY DAYS.  IT MERELY GAVE THE COMMISSIONER THE POWER
TO EXTEND THE DUE DATE UNDER APPROPRIATE RULES AND REGULATIONS.  AND
THE LATTER MADE NO PROVISION FOR AN EXTENSION AFTER THE EXPIRATION OF
THE STATUTORY PERIOD.  IT IS IMMATERIAL THAT DIFFERENT RULES AND
REGULATIONS MIGHT HAVE BEEN PROMULGATED UNDER WHICH AN EXTENSION MIGHT
HAVE BEEN OBTAINED IN THE CIRCUMSTANCES OF THIS CASE.  THE IMPORTANT
CONSIDERATION IS THAT THIS AMENDED RETURN WAS FILED AFTER THE
UNEXTENDED OR STATUTORY DUE DATE HAD EXPIRED.  IN ABSENCE OF AN
EXTENSION A LATER DUE DATE WOULD HAVE NO STATUTORY SANCTION.  SEE J. E.
RILEY INVESTMENT CO. V. COMMISSIONER, 311 U.S. 55.  FURTHERMORE, THE
MANDATE OF THE STATUTE THAT THE DECLARATION OF VALUE CONTAINED IN THE
FIRST RETURN CANNOT BE AMENDED MUST BE TAKEN TO PRECLUDE AN AMENDMENT
AFTER THE DUE DATE, IF THAT PROHIBITION IS TO HAVE REAL VITALITY. 

BUT PETITIONER ARGUES THAT A COURT OF EQUITY HAS POWER TO RELIEVE
AGAINST SUCH MISTAKES.  CF. MOFFETT, HODGKINS & CLARKE CO. V.
ROCHESTER, 178 U.S. 373.  ITS CONTENTION IS THAT THE AMENDED RETURN
REFLECTS ITS ORIGINAL INTENT RATHER THAN A SHIFT IN POSITION.  BUT WE
CANNOT TREAT THIS CASE LIKE A CASE FOR REFORMATION OF A CONTRACT.  WE
ARE DEALING HERE WITH AN ACT OF CONGRESS WHICH NOT ONLY PRESCRIBES THE
FORMULA FOR DETERMINING THE TIME WITHIN WHICH A RETURN MAY BE FILED BUT
WHICH ALSO EXPLICITLY STATES THAT A DECLARATION OF VALUE CONTAINED IN
THE ORIGINAL RETURN MAY NOT BE AMENDED.  HENCE, NO EXTENSION OF THE DUE
DATE MAY BE HAD EXCEPT PURSUANT TO THE PROCEDURE WHICH HAS CLEAR
STATUTORY SANCTION.  IF WE WERE TO GRANT PETITIONER THE EXTENSION WHICH
IT ASKS, WE WOULD BE PERFORMING A LEGISLATIVE OR ADMINISTRATIVE,  FN4
NOT A JUDICIAL, FUNCTION.  THE RESULT IN INDIVIDUAL CASES MAY BE
HARSH.  BUT THAT MAY BE TRUE IN CASE OF ANY STATUTE OF LIMITATIONS.  AS
WE INDICATED IN J. E. RILEY INVESTMENT CO. V. COMMISSIONER, SUPRA, SUCH
CONSIDERATIONS, THOUGH A BASIS FOR AN APPEAL TO CONGRESS FOR RELIEF IN
INDIVIDUAL CASES, FN5  ARE NOT APPROPRIATE GROUNDS FOR RELIEF BY THE
COURTS FROM THE STRICTNESS OF THE STATUTORY DEMAND.  AFFIRMED. 

FN1  SEC. 105(A) OF THE REVENUE ACT OF 1935, 49 STAT. 1014, 1017, AS
AMENDED BY SEC. 401 OF THE REVENUE ACT OF 1936, 49 STAT. 1648, 1733,
PROVIDES: 

"FOR EACH YEAR ENDING JUNE 30, BEGINNING WITH THE YEAR ENDING JUNE
30, 1936, THERE IS HEREBY IMPOSED UPON EVERY DOMESTIC CORPORATION WITH
RESPECT TO CARRYING ON OR DOING BUSINESS FOR ANY PART OF SUCH YEAR AN
EXCISE TAX OF $1 FOR EACH $1,000 OF THE ADJUSTED DECLARED VALUE OF ITS
CAPITAL STOCK." 

FN2  PETITIONER SOUGHT TO ENJOIN THE COLLECTOR FROM REFUSING TO
ACCEPT THE AMENDED RETURN.  THE BILL WAS DISMISSED BY THE DISTRICT
COURT.  WM. B. SCAIFE & SONS CO. V. DRISCOLL, 18 F.SUPP.  748.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  94 F.2D 664.  THIS COURT DENIED
CERTIORARI.  305 U.S. 603. 

FN3  SEC. 106(A) OF THE REVENUE ACT OF 1935, 49 STAT. 1014, 1019,
PROVIDES: 

"THERE IS HEREBY IMPOSED UPON THE NET INCOME OF EVERY CORPORATION FOR
EACH INCOME-TAX TAXABLE YEAR ENDING AFTER THE CLOSE OF THE FIRST YEAR
IN RESPECT OF WHICH IT IS TAXABLE UNDER SECTION 105, AN EXCESS-PROFITS
TAX EQUAL TO THE SUM OF THE FOLLOWING: 

"6 PER CENTUM OF SUCH PORTION OF ITS NET INCOME FOR SUCH INCOME-TAX
TAXABLE YEAR AS IS IN EXCESS OF 10 PER CENTUM AND NOT IN EXCESS OF 15
PER CENTUM OF THE ADJUSTED DECLARED VALUE; 

"12 PER CENTUM OF SUCH PORTION OF ITS NET INCOME FOR SUCH INCOME-TAX
TAXABLE YEAR AS IS IN EXCESS OF 15 PER CENTUM OF THE ADJUSTED DECLARED
VALUE." 

SEC. 106(B) PROVIDES THAT THE "ADJUSTED DECLARED VALUE SHALL BE
DETERMINED AS PROVIDED IN SECTION 105 AS OF THE CLOSE OF THE PRECEDING
INCOME-TAX TAXABLE YEAR (OR AS OF THE DATE OF ORGANIZATION IF IT HAD NO
PRECEDING INCOME-TAX TAXABLE YEAR)." 

FN4  THERE ARE TO BE DISTINGUISHED THOSE CASES ADVERTED TO IN J. E.
RILEY INVESTMENT CO. V. COMMISSIONER, SUPRA, P. 58, WHERE THE TREASURY
HAS PROVIDED FOR CORRECTION OF CERTAIN ERRORS OR MISCALCULATIONS IN THE
ORIGINAL RETURNS.  SUCH AN EXAMPLE IS ART. 43-2 OF TREASURY REGULATIONS
86 PROVIDING FOR THE FILING OF AMENDED RETURNS FOR THE PURPOSE OF
DEDUCTING LOSSES WHICH WERE SUSTAINED DURING A PRIOR TAXABLE YEAR. 

FN5  THUS PRIVATE ACT NO. 199, C. 440, 50 STAT. 1014, PROVIDES THAT
THE ORIGINAL DECLARED VALUE OF THE JACKSON CASKET & MANUFACTURING CO.,
NOTWITHSTANDING THE DECLARATION IN ITS RETURN FOR THE YEAR ENDING JUNE
30, 1936, SHOULD BE A VALUE COMPUTED ON THE BASIS OF $125 PER SHARE OF
ITS CAPITAL STOCK.  FROM THE COMMITTEE REPORTS IT APPEARS THAT, DUE TO
A MISTAKE BY WESTERN UNION TELEGRAPH CO. IN TRANSMITTING A MESSAGE FROM
THE PRESIDENT OF THE COMPANY TO ITS CASHIER, THE LATTER FILED A RETURN
IN WHICH THE VALUE OF THE CAPITAL STOCK WAS DECLARED TO BE $175 PER
SHARE, RATHER THAN $125 PER SHARE AS THE PRESIDENT HAD DIRECTED.  H.
REP. NO. 777, 75TH CONG., 1ST SESS.; S. REP. NO. 730, 75TH CONG., 1ST
SESS.
..END :




















HELVERING V. LERNER STORES CO., 314 U.S. 463 


NO. 248.  ARGUED DECEMBER 11, 1941.  - DECIDED DECEMBER 22, 1941.  - 118
F.2D 455, REVERSED. 


1.  AN AMENDED CAPITAL STOCK TAX RETURN, TO CORRECT AN UNDERVALUATION
OF THE TAXPAYER'S CAPITAL STOCK DECLARED BY MISTAKE IN ITS "FIRST
RETURN," CAN NOT BE FILED AFTER THE LAPSE OF 30 DAYS FROM THE STATUTORY
DUE DATE AND AFTER THE EXPIRATION OF THE PERIOD FOR WHICH AN EXTENSION
MIGHT HAVE BEEN ALLOWED BY THE COMMISSIONER IF APPLICATION FOR IT HAD
BEEN MADE.  SCAIFE COMPANY V. COMMISSIONER, ANTE, P. 459.  P. 466. 

2.  IN ALLOWING THE TAXPAYER TO FIX ITS OWN VALUATION OF ITS CAPITAL
STOCK, THEREBY AFFECTING ITS TAX LIABILITY UNDER THE CLOSELY RELATED
CAPITAL STOCK AND EXCESS PROFITS TAX PROVISIONS, THE REVENUE ACT OF
1935 DOES NOT UNCONSTITUTIONALLY DELEGATE LEGISLATIVE POWER.  P. 468. 

3.  A CLAIM OF UNREASONABLE CLASSIFICATION OR INEQUALITY IN THE
INCIDENCE OR APPLICATION OF A TAX RAISES NO QUESTION UNDER THE FIFTH
AMENDMENT, WHICH CONTAINS NO EQUAL PROTECTION CLAUSE.  P. 468. 

4.  THE PROPRIETY OR WISDOM OF A TAX ON PROFITS, COMPUTED WITH
REFERENCE TO A SPECIFIED CRITERION OF VALUE OF CAPITAL STOCK, IS NOT
OPEN TO CHALLENGE IN THE COURTS.  P. 468. 

5.  THERE IS NO CONSTITUTIONAL REASON WHY CONGRESS MAY NOT AVOID
LITIGIOUS VALUATION PROBLEMS BY RELYING ON THE SELF-INTEREST OF
TAXPAYERS TO PLACE A FAIR VALUATION ON THEIR CAPITAL STOCK.  P. 468. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE V. LERNER STORES CORP.
(MD.) 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 598, TO REVIEW A JUDGMENT WHICH REVERSED A
DECISION OF THE BOARD OF TAX APPEALS SUSTAINING AN EXCESS PROFITS TAX. 

THE TAXPAYER IS NOT BOUND BY THE CLERICAL ERROR RESULTING IN THE
STATEMENT OF AN ERRONEOUS VALUE. 

THE TAXPAYER MAY ELECT TO DECLARE ANY VALUE IT SEES FIT IN A TIMELY
AMENDED RETURN; AND A RETURN BEFORE THE END OF ITS FIRST INCOME TAX
YEAR ENDING AFTER THE DECLARATION YEAR IS TIMELY. 

THE CAPITAL STOCK TAX UNDER SEC. 105 WAS AN EXCISE TAX.  THE EXCESS
PROFITS TAX UNDER SEC. 106 WAS AN INCOME TAX.  SINCE, UNDER THESE
THE OPTION OF IMPOSING ON THEMSELVES A DIRECT TAX OR AN INDIRECT TAX AS
THEY DESIRED.  A TAXPAYER MIGHT DECLARE NO VALUE FOR CAPITAL STOCK AND
THUS ELECT THE EXCESS PROFITS TAX; OR IT MIGHT DECLARE A LARGE CAPITAL
STOCK VALUE AND AVOID IMPOSITION OF EXCESS PROFITS TAX; OR IT MIGHT BY
A MEDIUM DECLARATION ELECT TO PAY BOTH CAPITAL STOCK AND EXCESS PROFITS
TAXES.  CONGRESS MAY NOT THUS DELEGATE ITS LEGISLATIVE AUTHORITY.  SEE
BLACK, AMERICAN CONST. LAW, 3D ED. PP. 373 ET SEQ.; FIELD V. CLARK, 143
U.S. 649, 692; PANAMA REFINING CO. V. RYAN, 293 U.S. 388; UNITED STATES
V. GRIMAUD, 220 U.S. 506. 

CAPRICIOUS IN VIOLATION OF THE FIFTH AMENDMENT.  THE EXCESS PROFITS
TAX, CONSIDERED TOGETHER WITH ITS RELATED CAPITAL STOCK TAX, PLACES A
PREMIUM ON THE GOOD LUCK OR ABILITY OF THE TAXPAYER TO PREDICT THE
AMOUNT OF NET INCOME IT WILL EARN IN THE FUTURE.  THE TAXPAYER WITH
LESS ABILITY AS A GUESSER, OR IN SOME INSTANCES, WITH LESS BUSINESS
ACUMEN OR OPPORTUNITY, IS HEAVILY PENALIZED AND MUST BEAR A HEAVIER
BURDEN THAN ITS MORE FORTUNATE OR ABLE RIVAL.  BRUSHABER V. UNION
PACIFIC R. CO., 240 U.S. 1, 24-25; TYLER V. UNITED STATES, 281 U.S.
497, 504. 

THE STATUTE LIKEWISE PRODUCES GROSS INEQUALITY IN ITS EFFECT ON THOSE
BUSINESSES WHICH INVOLVE MORE RISKS, AND WIDER FLUCTUATION IN THE
AMOUNT OF INCOME. 

MOREOVER, THE TAX OPERATES UNFAIRLY AGAINST MANY TAXPAYERS BECAUSE OF
THE ENDING DATES OF THEIR FISCAL YEARS.  SOLELY BECAUSE THE TAXPAYER
HEREIN HAS A FISCAL YEAR ENDED JANUARY 31ST, IT MUST BEAR A GREATER TAX
BURDEN THAN ONE ON THE CALENDAR YEAR BASIS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO SCAIFE CO. V. COMMISSIONER, ANTE, P.
459.  THE TAX IN DISPUTE IS RESPONDENT'S EXCESS PROFITS TAX FOR THE
FISCAL YEAR 1937.  RESPONDENT FILED A TIMELY CAPITAL STOCK TAX RETURN
FOR THE FIRST YEAR, ENDED JUNE 30, 1936, IN WHICH THE DECLARED VALUE OF
ITS CAPITAL STOCK WAS STATED TO BE $25,000.  THIS RETURN WAS FILED
SEPTEMBER 27, 1936, AN EXTENSION OF TIME UNTIL SEPTEMBER 29, 1936
HAVING BEEN OBTAINED.  THE FIGURE OF $25,000 WAS ERRONEOUS DUE TO A
MISTAKE MADE BY AN EMPLOYEE OF RESPONDENT.  WHEN THE ERROR WAS
DISCOVERED, AN AMENDED RETURN WAS TENDERED IN WHICH THE DECLARED VALUE
OF THE CAPITAL STOCK WAS GIVEN AS $2,500,000.  THIS WAS ON JANUARY 27,
1937, MORE THAN SIXTY DAYS AFTER THE STATUTORY DUE DATE.  THE AMOUNT OF
THE TAX, PENALTY AND INTEREST ON THE HIGHER AMOUNT WAS TENDERED.  THE
AMENDED RETURN WAS NOT ACCEPTED AND THE AMOUNT OF THE REMITTANCE WAS
REFUNDED.  PETITIONER, IN DETERMINING RESPONDENT'S NET INCOME SUBJECT
TO THE EXCESS PROFITS TAX FOR THE FISCAL YEAR ENDED JANUARY 31, 1937,
USED THE DECLARED VALUE OF $25,000 APPEARING IN THE ORIGINAL RETURN. 
THE ORDER OF THE BOARD OF TAX APPEALS SUSTAINING THE COMMISSIONER WAS
REVERSED BY THE CIRCUIT COURT OF APPEALS.  118 F.2D 455. 

ON THE ISSUE OF TIMELINESS OF THE AMENDED RETURN THE DECISION IN THE
SCAIFE CASE IS DETERMINATIVE.  THE CASE FOR DISALLOWANCE OF THE
AMENDMENT IS EVEN STRONGER HERE, FOR THE AMENDED RETURN WAS FILED
BEYOND THE PERIOD FOR WHICH ANY EXTENSION COULD HAVE BEEN GRANTED BY
THE COMMISSIONER.  THE HARDSHIP RESULTING FROM THE MISPLACED DECIMAL
POINT IS PLAIN.  BUT CONGRESS, NOT THE COURTS, IS THE SOURCE OF
RELIEF. 

RESPONDENT IN ITS BRIEF TENDERS ANOTHER ISSUE.  IT CONTENDS HERE, AS
IT DID BEFORE THE BOARD AND THE CIRCUIT COURT OF APPEALS, THAT SECS.
105 AND 106 OF THE REVENUE ACT OF 1935 CONSTITUTE AN UNLAWFUL
DELEGATION OF LEGISLATIVE AUTHORITY, CONTRARY TO ART. 1, SEC. 8 OF THE
CONSTITUTION; THAT THEY VIOLATE THE FIFTH AMENDMENT; AND THAT THE
CAPITAL STOCK AND EXCESS PROFITS TAXES, BEING "BASED ON GUESSES AND
WAGERS," ARE BEYOND THE DELEGATED POWERS OF CONGRESS.  THE BOARD AND
THE CIRCUIT COURT OF APPEALS RULED ADVERSELY TO RESPONDENT ON THESE
CONSTITUTIONAL ISSUES.  RESPONDENT FILED NO CROSS-PETITION FOR
CERTIORARI.  YET A RESPONDENT, WITHOUT FILING A CROSS-PETITION, MAY
URGE IN SUPPORT OF THE JUDGMENT UNDER REVIEW GROUNDS REJECTED BY THE
COURT BELOW.  LANGNES V. GREEN, 282 U.S. 531, 538-539; PUBLIC SERVICE
COMMISSION V. HAVEMEYER, 296 U.S. 506, 509; MCGOLDRICK V. COMPAGNIE
GENERALE TRANSATLANTIQUE, 309 U.S. 430, 434. 

THE CONSTITUTIONAL ISSUES, HOWEVER, ARE WITHOUT SUBSTANCE.  AS WE
NOTED IN HAGGAR CO. V. HELVERING, 308 U.S. 389, 391-392, 394, THE
CAPITAL STOCK TAX AND THE EXCESS PROFITS TAX ARE CLOSELY INTERRELATED. 
THE DECLARED VALUE OF THE CAPITAL STOCK IS THE BASIS OF COMPUTATION OF
BOTH TAXES.  THE DECLARED VALUE FOR THE FIRST YEAR IS THE VALUE
DECLARED BY THE CORPORATION IN ITS FIRST RETURN; THE DECLARED VALUE FOR
SUBSEQUENT YEARS  FN1  IS THE ORIGINAL DECLARED VALUE AS CHANGED BY
CERTAIN SPECIFIED CAPITAL ADJUSTMENTS.  SEC. 105(F), REVENUE ACT OF
1935, 49 STAT. 1014, 1018.  THE TAXPAYER IS FREE TO DECLARE ANY VALUE
OF THE CAPITAL STOCK FOR THE FIRST YEAR WHICH IT MAY CHOOSE.  WHILE A
LOW DECLARATION OF VALUE DECREASES THE AMOUNT OF THE CAPITAL STOCK TAX,
IT INCREASES THE RISK OF A HIGH EXCESS PROFITS TAX.  ON THE OTHER HAND,
A HIGH DECLARATION OF VALUE, WHILE DECREASING THE TAX ON EXCESS
PROFITS, INCREASES THE CAPITAL STOCK TAX.  BY ALLOWING THE TAXPAYER "TO
FIX FOR ITSELF THE AMOUNT OF THE TAXABLE BASE" FOR PURPOSES OF
COMPUTATION OF THESE TAXES, CONGRESS "AVOIDED THE NECESSITY OF
PRESCRIBING A FORMULA FOR ARRIVING AT THE ACTUAL VALUE OF CAPITAL" - A
PROBLEM "WHICH HAD BEEN FOUND PRODUCTIVE OF MUCH LITIGATION UNDER
EARLIER TAXING ACTS."  HAGGAR CO. V. HELVERING, SUPRA, P. 394.  SEE 1
BONBRIGHT, VALUATION OF PROPERTY, PP. 577-594.  "AT THE SAME TIME IT
GUARDED AGAINST LOSS OF REVENUE TO THE GOVERNMENT THROUGH
UNDERSTATEMENTS OF CAPITAL" BY PROVIDING A FORMULA WHICH WOULD IN SUCH
CIRCUMSTANCES RESULT IN AN INCREASE IN THE EXCESS PROFITS TAX.  HAGGAR
CO. V. HELVERING, SUPRA, P. 394. 

THERE IS PRESENT NO UNLAWFUL DELEGATION OF POWER.  CONGRESS HAS
PRESCRIBED THE METHOD BY WHICH THE TAXES ARE TO BE COMPUTED.  THE
TAXPAYER HERE IS GIVEN A CHOICE AS TO VALUE.  WHILE THE DECISION WHICH
IT MAKES HAS A PRONOUNCED EFFECT UPON ITS TAX LIABILITY, THAT IS NOT
UNCOMMON IN THE TAX FIELD.  CONGRESS HAS FIXED THE CRITERIA IN LIGHT OF
WHICH THE CHOICE IS TO BE MADE.  THE ELECTION WHICH THE TAXPAYER MAKES
CANNOT AFFECT ANYONE BUT ITSELF. 

THE CONTENTION THAT THESE PROVISIONS OF THE ACT RUN AFOUL OF THE FIFTH
AMENDMENT IS LIKEWISE WITHOUT MERIT.  A CLAIM OF UNREASONABLE
CLASSIFICATION OR INEQUALITY IN THE INCIDENCE OR APPLICATION OF A TAX
RAISES NO QUESTION UNDER THE FIFTH AMENDMENT, WHICH CONTAINS NO EQUAL
PROTECTION CLAUSE.  LABELLE IRON WORKS V. UNITED STATES, 256 U.S. 377;
SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 401.  THE
PROPRIETY OR WISDOM OF A TAX ON PROFITS, COMPUTED IN REFERENCE TO A
SPECIFIED CRITERION OF VALUE OF CAPITAL STOCK, IS NOT OPEN TO CHALLENGE
IN THE COURTS.  LABELLE IRON WORKS V. UNITED STATES, SUPRA, P. 393. 
THAT BEING TRUE, THERE IS NO CONSTITUTIONAL REASON WHY CONGRESS MAY
NOT, BECAUSE OF ADMINISTRATIVE CONVENIENCE ALONE (CARMICHAEL V.
SOUTHERN COAL & COKE CO., 301 U.S. 495, 511 AND CASES CITED), AVOID
LITIGIOUS VALUATION PROBLEMS AND RELY ON THE SELF-INTEREST OF TAXPAYERS
TO PLACE A FAIR VALUATION ON THEIR CAPITAL STOCK.  AS WAS STATED IN
ROCHESTER GAS & ELECTRIC CORP. V. MCGOWAN, 115 F.2D 953, 955, "TO SAY
THAT CONGRESS COULD NOT CHOOSE A SCHEME IMPLEMENTED BY SUCH MILD
SANCTIONS, AS AN ALTERNATIVE TO ACTUALLY COMPUTING AN 'EXCESS PROFITS
TAX' WITH ALL THE UNCERTAINTY AND LITIGATION WHICH THAT HAD INVOLVED,
WOULD BE MOST UNREASONABLY TO CIRCUMSCRIBE ITS POWERS TO ESTABLISH A
CONVENIENT AND FLEXIBLE FISCAL SYSTEM." 

NOR DO WE HAVE HERE ANY LACK OF THAT TERRITORIAL UNIFORMITY WHICH IS
REQUIRED BY ART. I, SEC. 8 OF THE CONSTITUTION.  LABELLE IRON WORKS V.
UNITED STATES, SUPRA, P. 392.  REVERSED. 

FN1  THERE IS NO LIMITATION OF TIME ON THE USE OF THE ORIGINAL
DECLARED VALUE UNDER THE 1935 ACT.  IT SHOULD BE NOTED, HOWEVER, THAT
SEC. 1202 OF THE INTERNAL REVENUE CODE (SEE SEC. 601(F) OF THE REVENUE
ACT OF 1938, 52 STAT. 447, 566) PROVIDES THAT THE "ADJUSTED DECLARED
VALUE SHALL BE DETERMINED WITH RESPECT TO THREE-YEAR PERIODS BEGINNING
WITH THE YEAR ENDING JUNE 30, 1938, AND EACH THIRD YEAR THEREAFTER." 
THAT ADJUSTED DECLARED VALUE ENTERS INTO THE COMPUTATION OF THE EXCESS
PROFITS TAX UNDER SECS. 600 AND 601 OF THE INTERNAL REVENUE CODE. 
..END :


















LABOR BOARD V. VIRGINIA POWER CO., 314 U.S. 469 


NO. 25.  ARGUED NOVEMBER 13, 1941.  - DECIDED DECEMBER 22, 1941.  - 115
F.2D 414, REVERSED. 


1.  THE NATIONAL LABOR RELATIONS ACT DOES NOT FORBID OR PENALIZE
EXPRESSION BY AN EMPLOYER TO HIS EMPLOYEES OF HIS VIEWS ON LABOR
POLICIES.  P. 476. 

2.  CONDUCT, THOUGH EVIDENCED IN PART BY SPEECH, MAY AMOUNT IN
CONNECTION WITH OTHER CIRCUMSTANCES TO COERCION WITHIN THE MEANING OF
THE ACT.  IN DETERMINING WHETHER AN EMPLOYER ACTUALLY INTERFERED WITH,
RESTRAINED, AND COERCED ITS EMPLOYEES, THE BOARD MAY LOOK AT WHAT IT
SAID AS WELL AS WHAT IT DID.  P. 477. 

3.  WHERE THE BOARD SPECIFICALLY FOUND THAT CERTAIN SPOKEN AND POSTED
UTTERANCES BY THE EMPLOYER WERE UNFAIR LABOR PRACTICES, THE ADEQUACY OF
WHICH FINDING WAS DOUBTFUL IF THE UTTERANCES WERE SEPARATED FROM THEIR
BACKGROUND, AND IT WAS NOT CERTAIN FROM THE BOARD'S DECISION THAT ITS
CONCLUSION WAS BASED ON THE WHOLE COURSE OF CONDUCT DURING THE PERIOD
IN QUESTION, OF WHICH THE UTTERANCES WERE A PART, HELD, THAT THE CASE
MUST BE RETURNED TO THE BOARD FOR A REDETERMINATION.  P. 479. 

NATIONAL LABOR RELATIONS BOARD V. VIRGINIA ELECTRIC & POWER CO.* 

*TOGETHER WITH NO. 26, NATIONAL LABOR RELATIONS BOARD V. INDEPENDENT
ORGANIZATION OF EMPLOYEES OF THE VIRGINIA ELECTRIC & POWER CO., ALSO ON
WRIT OF CERTIORARI, 312 U.S. 677, TO THE CIRCUIT COURT OF APPEALS FOR
THE FOURTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 312 U.S. 677, TO REVIEW A JUDGMENT SETTING ASIDE AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD, 20 N.L.R.B. 911, REQUIRING THE
ABOVE-NAMED POWER COMPANY, AMONG OTHER THINGS, TO WITHDRAW RECOGNITION
OF, AND DISESTABLISH, A UNION WITH WHICH IT HAD CONTRACTED.  THE
COMPANY AND THE INDEPENDENT UNION FILED SEPARATE PETITIONS IN THE COURT
BELOW TO REVIEW AND SET ASIDE THE ORDER.  THE BOARD ANSWERED AND PRAYED
ENFORCEMENT OF THE ORDER. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

UPON THE USUAL PROCEEDINGS  FN1  HAD PURSUANT TO SEC. 10 OF THE
NATIONAL LABOR RELATIONS ACT, FN2  THE BOARD MADE SUBSTANTIALLY THE
FOLLOWING FINDINGS OF FACT: 

FOR YEARS PRIOR TO THE EVENTS IN THIS CASE THE VIRGINIA ELECTRIC AND
POWER COMPANY (HEREINAFTER CALLED THE COMPANY) WAS HOSTILE TO LABOR
ORGANIZATIONS.  FROM 1922, WHEN A STRIKE WAS UNSUCCESSFUL BY A
NATIONALLY AFFILIATED UNION,  FN3  UNTIL THE FORMATION OF THE
INDEPENDENT ORGANIZATION OF EMPLOYEES (HEREINAFTER CALLED THE
INDEPENDENT) IN 1937, THERE WAS NO LABOR ORGANIZATION AMONG ITS
EMPLOYEES.  SHORTLY AFTER THE ENACTMENT OF THE NATIONAL INDUSTRIAL
RECOVERY ACT IN 1933, HOLTZCLAW, THE PRESIDENT OF THE COMPANY, SPOKE TO
THE EMPLOYEES AND STATED THAT ANY ORGANIZATION AMONG THEM WAS "ENTIRELY
UNNECESSARY."  UNTIL HIS DEATH, IN MAY 1937, THE COMPANY UTILIZED THE
SERVICES OF ONE WALTERS, AN EMPLOYEE OF THE RAILWAY AUDIT AND
INSPECTION COMPANY, WHO, PRIOR TO THE EFFECTIVE DATE OF THE ACT,
ADMITTEDLY FURNISHED A REPORT ON THE LABOR ACTIVITY OF THE EMPLOYEES TO
THE COMPANY.  IN 1936, BISHOP, SUPERINTENDENT OF TRANSPORTATION IN
NORFOLK, INTERROGATED EMPLOYEES CONCERNING UNION ACTIVITIES.  ON APRIL
26, 1937, SHORTLY AFTER THE ACT WAS UPHELD,  FN4  AND AN A.F. OF L.
ORGANIZER HAD APPEARED, THE COMPANY POSTED A BULLETIN  FN5 THROUGHOUT
ITS OPERATIONS, APPEALING TO THE EMPLOYEES TO BARGAIN WITH THE COMPANY
DIRECTLY, WITHOUT THE INTERVENTION OF AN "OUTSIDE" UNION, AND THEREBY
COERCED ITS EMPLOYEES.  IN RESPONSE TO THIS BULLETIN SEVERAL REQUESTS
FOR INCREASED WAGES AND BETTER WORKING CONDITIONS WERE RECEIVED.  FN6
THE COMPANY DECIDED TO WITHHOLD ACTION ON THOSE REQUESTS, AND DIRECTED
ITS EMPLOYEES TO SELECT REPRESENTATIVES TO ATTEND MEETINGS AT WHICH
COMPANY OFFICIALS WOULD SPEAK ON THE WAGNER ACT.  THESE REPRESENTATIVES
MET IN NORFOLK AND RICHMOND ON MAY 24, AND WERE ADDRESSED BY HIGH
COMPANY OFFICIALS, WHO READ IDENTICAL SPEECHES  FN7  STRESSING THE
DESIRABILITY OF FORMING A BARGAINING AGENCY.  AT THE RICHMOND MEETING
IT WAS ANNOUNCED THAT ANY WAGE INCREASE GRANTED WOULD BE RETROACTIVE TO
JUNE 1.  BY THE SUBSTANCE OF THE SPEECHES AND THE MECHANICS OF THE
MEETINGS, THE COMPANY GAVE IMPETUS TO, AND ASSURED THE CREATION OF, AN
"INSIDE" ORGANIZATION, AND COERCED ITS EMPLOYEES IN THE EXERCISE OF
THEIR RIGHTS GUARANTEED BY SEC. 7 OF THE ACT.  MEETINGS, ARRANGED WITH
THE COOPERATION OF COMPANY SUPERVISORS, ON COMPANY PROPERTY, AND, IN
SOME INSTANCES, ON COMPANY TIME, FOLLOWED, AT WHICH THE MAY 24 SPEECHES
WERE REPORTED TO THE MEN WHO VOTED TO FORM AN "INSIDE" ORGANIZATION AND
SELECTED COMMITTEES FOR THAT PURPOSE.  THESE COMMITTEES MET ON COMPANY
PROPERTY UNTIL JUNE 15, WHEN THE CONSTITUTION OF THE INDEPENDENT WAS
ADOPTED. 

WHILE THE INDEPENDENT WAS IN THE PROCESS OF ORGANIZATION, EDWARDS, A
SUPERVISOR, KEPT MEETINGS OF A RIVAL C.I.O. UNION UNDER SURVEILLANCE
AND WARNED EMPLOYEES THAT THEY WOULD BE DISCHARGED FOR "MESSING WITH
THE C.I.O."  ON JUNE 1, MANN, A MEMBER OF THE C.I.O. WHO HAD OPENLY
PROTESTED AGAINST AN "INSIDE" UNION AT ONE OF THE MAY 11 MEETINGS (SEE
NOTE 6 ANTE) ATTENDED BY SUPERINTENDENT BISHOP'S SON, WARREN, WAS
DISCHARGED FOR UNION ACTIVITIES. 

ON JUNE 17, APPLICATION CARDS FOR THE INDEPENDENT WERE DISTRIBUTED
THROUGHOUT THE ENTIRE SYSTEM OF THE COMPANY, AND MANY WERE SIGNED ON
COMPANY PROPERTY AND TIME.  WITHIN THREE WEEKS AFTER THE ADOPTION OF
THE CONSTITUTION OF THE INDEPENDENT, A MAJORITY OF THE EMPLOYEES FILLED
OUT APPLICATION CARDS.  BY JULY 13, THE ORGANIZATION WAS COMPLETE, AND
PERMANENT COMMITTEEMEN HAD BEEN ELECTED.  A MAJORITY OF THOSE
COMMITTEEMEN HAD BEEN PRESENT AT THE MAY 24 MEETINGS.  ON JULY 19, THE
INDEPENDENT NOTIFIED THE COMPANY THAT IT REPRESENTED A MAJORITY OF THE
EMPLOYEES, AND SUBMITTED A PROPOSED CONTRACT.  NEGOTIATIONS WERE BEGUN
ON JULY 30, AND AGREEMENT WAS REACHED BY MIDNIGHT OF THE FOLLOWING
DAY.  THE CONTRACT WAS FORMALLY EXECUTED ON AUGUST 5, AND PROVIDED,
INTER ALIA, FOR A CLOSED SHOP, A CHECK-OFF, AND A WAGE INCREASE.  ON
AUGUST 20, THE COMPANY PAID $3,784.50 TO THE INDEPENDENT, ALTHOUGH IT
HAD NOT YET DEDUCTED THAT ENTIRE AMOUNT FROM THE EMPLOYEES' WAGES.  ON
NOVEMBER 4, THE DATE UPON WHICH THE CLOSED SHOP PROVISION BECAME
EFFECTIVE, THE COMPANY DISCHARGED TWO EMPLOYEES, STAUNTON AND ELLIOTT,
BECAUSE THEY REFUSED TO JOIN THE INDEPENDENT.  IN MARCH, 1938, IT
DISCHARGED ANOTHER EMPLOYEE, HARRELL, FOR HIS MEMBERSHIP AND ACTIVITY
IN AN OUTSIDE UNION. 

UPON THE BASIS OF THESE FINDINGS AND THE ENTIRE RECORD IN THE CASE,
THE BOARD CONCLUDED THAT THE COMPANY HAD COMMITTED UNFAIR LABOR
PRACTICES WITHIN THE MEANING OF SEC. 8(1), (2) AND (3) OF THE ACT.  ITS
ORDER DIRECTED THE COMPANY TO CEASE AND DESIST FROM ITS UNFAIR LABOR
PRACTICES AND FROM GIVING EFFECT TO ITS CONTRACT WITH THE INDEPENDENT,
TO WITHDRAW RECOGNITION FROM AND DISESTABLISH THAT ORGANIZATION, TO
REINSTATE WITH BACK PAY THE FOUR WRONGFULLY DISCHARGED EMPLOYEES, TO
REIMBURSE EACH OF ITS EMPLOYEES WHO WAS A MEMBER OF THE INDEPENDENT IN
THE AMOUNT OF THE DUES AND ASSESSMENTS CHECKED OFF HIS WAGES BY THE
COMPANY ON BEHALF OF THE INDEPENDENT, AND TO POST APPROPRIATE NOTICES. 

THE COMPANY AND THE INDEPENDENT FILED SEPARATE PETITIONS IN THE COURT
BELOW TO REVIEW AND SET ASIDE THE BOARD'S ORDER.  THE BOARD ANSWERED
AND REQUESTED ENFORCEMENT OF ITS ORDER AGAINST THE COMPANY.  THE COURT
BELOW DENIED ENFORCEMENT TO ANY PART OF THE BOARD'S ORDER, COMPLETELY
SETTING IT ASIDE.  FN8  WE GRANTED THE PETITION FOR WRITS OF CERTIORARI
BECAUSE THE CASE WAS THOUGHT TO PRESENT IMPORTANT QUESTIONS IN THE
ADMINISTRATION OF THE ACT.  312 U.S. 677. 

THE COMPANY IS ENGAGED IN THE BUSINESS OF GENERATING AND DISTRIBUTING
ELECTRICAL ENERGY IN EASTERN VIRGINIA AND NORTH-EASTERN NORTH
CAROLINA.  IT ALSO FURNISHES ILLUMINATING GAS TO CUSTOMERS IN THE
VICINITY OF NORFOLK, VIRGINIA, AND OPERATES TRANSPORTATION SERVICES IN
RICHMOND, NORFOLK, PORTSMOUTH AND PETERSBURG.  IT DOES NOT HERE RENEW
THE CONTENTION, CORRECTLY DECIDED AGAINST IT BY THE COURT BELOW,  FN9
THAT THE JURISDICTION OF THE BOARD DOES NOT EXTEND TO ITS EMPLOYEES IN
THE GAS AND TRANSPORTATION DEPARTMENTS. 

DOMINATION OF THE INDEPENDENT 

THE COMMAND OF SEC. 10(E) OF THE ACT THAT "THE FINDINGS OF THE BOARD
AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE,"
PRECLUDES AN INDEPENDENT CONSIDERATION OF THE FACTS.  BEARING THIS IN
MIND, WE MUST EVER GUARD AGAINST ALLOWING OUR VIEWS TO BE SUBSTITUTED
FOR THOSE OF THE AGENCY WHICH CONGRESS HAS CREATED TO ADMINISTER THE
ACT.  BUT HERE THE BOARD'S CONCLUSION THAT THE INDEPENDENT WAS A
COMPANY-DOMINATED UNION SEEMS BASED HEAVILY UPON FINDINGS WHICH ARE NOT
FREE FROM AMBIGUITY AND DOUBT.  WE BELIEVE THAT THE BOARD, AND NOT THIS
COURT, SHOULD UNDERTAKE THE TASK OF CLARIFICATION. 

THE BOARD SPECIFICALLY FOUND THAT THE BULLETIN OF APRIL 26 AND THE
SPEECHES OF MAY 24 "INTERFERED WITH, RESTRAINED AND COERCED" THE
COMPANY'S EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS GUARANTEED BY SEC.
7 OF THE ACT.  THE COMPANY STRONGLY URGES THAT SUCH A FINDING IS
REPUGNANT TO THE FIRST AMENDMENT.  NEITHER THE ACT NOR THE BOARD'S
ORDER HERE ENJOINS THE EMPLOYER FROM EXPRESSING ITS VIEW ON LABOR
POLICIES OR PROBLEMS, NOR IS A PENALTY IMPOSED UPON IT BECAUSE OF ANY
UTTERANCES WHICH IT HAS MADE.  THE SANCTIONS OF THE ACT ARE IMPOSED NOT
IN PUNISHMENT OF THE EMPLOYER BUT FOR THE PROTECTION OF THE EMPLOYEES. 
THE EMPLOYER IN THIS CASE IS AS FREE NOW AS EVER TO TAKE ANY SIDE IT
MAY CHOOSE ON THIS CONTROVERSIAL ISSUE.  BUT, CERTAINLY, CONDUCT,
THOUGH EVIDENCED IN PART BY SPEECH, MAY AMOUNT, IN CONNECTION WITH
OTHER CIRCUMSTANCES, TO COERCION WITHIN THE MEANING OF THE ACT.  IF THE
TOTAL ACTIVITIES OF AN EMPLOYER RESTRAIN OR COERCE HIS EMPLOYEES IN
THEIR FREE CHOICE, THEN THOSE EMPLOYEES ARE ENTITLED TO THE PROTECTION
OF THE ACT.  AND IN DETERMINING WHETHER A COURSE OF CONDUCT AMOUNTS TO
RESTRAINT OR COERCION, PRESSURE EXERTED VOCALLY BY THE EMPLOYER MAY NO
MORE BE DISREGARDED THAN PRESSURE EXERTED IN OTHER WAYS.  FOR "SLIGHT
SUGGESTIONS AS TO THE EMPLOYER'S CHOICE BETWEEN UNIONS MAY HAVE TELLING
EFFECT AMONG MEN WHO KNOW THE CONSEQUENCES OF INCURRING THAT EMPLOYER'S
STRONG DISPLEASURE."  INTERNATIONAL ASSOCIATION OF MACHINISTS V.
NATIONAL LABOR RELATIONS BOARD, 311 U.S. 72, 78. 

IF THE BOARD'S ORDER HERE MAY FAIRLY BE SAID TO BE BASED ON THE
TOTALITY OF THE COMPANY'S ACTIVITIES DURING THE PERIOD IN QUESTION, WE
MAY NOT CONSIDER THE FINDINGS OF THE BOARD AS TO THE COERCIVE EFFECT OF
THE BULLETIN AND THE SPEECHES IN ISOLATION FROM THE FINDINGS AS
RESPECTS THE OTHER CONDUCT OF THE COMPANY.  IF THE BOARD'S ULTIMATE
CONCLUSION IS BASED UPON A COMPLEX OF ACTIVITIES, SUCH AS THE ANTI
UNION BACKGROUND OF THE COMPANY, THE ACTIVITIES OF BISHOP, EDWARDS'
WARNING TO THE EMPLOYEES THAT THEY WOULD BE DISCHARGED FOR "MESSING
WITH THE C.I.O.," THE DISCHARGE OF MANN, THE QUICK FORMATION OF THE
INDEPENDENT, AND THE PART WHICH THE MANAGEMENT MAY HAVE PLAYED IN THAT
FORMATION, THAT CONCLUSION WOULD NOT BE VITIATED BY THE FACT THAT THE
BOARD CONSIDERED WHAT THE COMPANY SAID IN CONJUNCTION WITH WHAT IT
DID.  THE MERE FACT THAT LANGUAGE MERGES INTO A COURSE OF CONDUCT DOES
NOT PUT THAT WHOLE COURSE WITHOUT THE RANGE OF OTHERWISE APPLICABLE
ADMINISTRATIVE POWER.  IN DETERMINING WHETHER THE COMPANY ACTUALLY
INTERFERED WITH, RESTRAINED, AND COERCED ITS EMPLOYEES, THE BOARD HAS A
RIGHT TO LOOK AT WHAT THE COMPANY HAS SAID, AS WELL AS WHAT IT HAS
DONE. 

BUT, FROM THE BOARD'S DECISION, WE ARE FAR FROM CLEAR THAT THE BOARD
HERE CONSIDERED THE WHOLE COMPLEX OF ACTIVITIES, OF WHICH THE BULLETIN
AND THE SPEECHES ARE BUT PARTS, IN REACHING ITS ULTIMATE CONCLUSION
WITH REGARD TO THE INDEPENDENT.  THE BOARD REGARDED THE BULLETIN, ON
ITS FACE, AS SHOWING A MARKED BIAS AGAINST NATIONAL UNIONS BY IMPLYING
THAT STRIKES AND UNREST ARE CAUSED BY THE ORGANIZATIONAL CAMPAIGNS OF
SUCH BODIES, BY STRESSING THE "HAPPY RELATIONSHIP OF MUTUAL CONFIDENCE
AND UNDERSTANDING" PREVAILING IN THE ABSENCE OF ORGANIZATION SINCE THE
DEFEAT OF THE AMALGAMATED IN 1922, AND BY EMPHASIZING THE NEGATIVE
"RIGHT" OF THE EMPLOYEES TO REFRAIN FROM EXERCISING THEIR RIGHTS
GUARANTEED UNDER THE ACT, AFTER PAYING "LIP SERVICE" TO THOSE RIGHTS. 
SUMMING UP ITS CONCLUSIONS, THE BOARD SAID:  "WE INTERPRET THE BULLETIN
AS AN APPEAL TO THE EMPLOYEES TO BARGAIN WITH THE RESPONDENT DIRECTLY,
WITHOUT THE INTERVENTION OF ANY 'OUTSIDE' UNION.  WE FIND THAT BY
POSTING THE BULLETIN THE RESPONDENT INTERFERED WITH, RESTRAINED, AND
COERCED ITS EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN

THE BOARD WAS OF THE VIEW THAT THE SPEECHES DELIVERED IN THE MEETINGS
OF MAY 24 PROVIDED THE IMPETUS FOR THE FORMATION OF A SYSTEM-WIDE
ORGANIZATION, THAT THEY REEMPHASIZED THE COMPANY'S DISTASTE FOR
"OUTSIDE" ORGANIZATIONS BY REFERRING TO THE BULLETIN, AND THAT, AFTER
QUOTING THE PROVISION OF THE ACT FORBIDDING EMPLOYER DOMINATION OF
LABOR ORGANIZATIONS, THEY SUGGESTED THAT THE EMPLOYEES SELECT THEIR
"OWN" OFFICERS, AND ADOPT THEIR "OWN" BY-LAWS AND RULES.  THE BOARD'S
FINDING WAS:  "WE FIND THAT AT THE MAY 24 MEETINGS THE RESPONDENT URGED
ITS EMPLOYEES TO ORGANIZE AND TO DO SO INDEPENDENTLY OF 'OUTSIDE'
ASSISTANCE, AND THAT IT THEREBY INTERFERED WITH, RESTRAINED, AND
COERCED ITS EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN

IT IS CLEAR THAT THE BOARD SPECIFICALLY FOUND THAT THOSE UTTERANCES
WERE UNFAIR LABOR PRACTICES, AND IT DOES NOT APPEAR THAT THE BOARD
RAISED THEM TO THE STATURE OF COERCION BY RELIANCE ON THE SURROUNDING
CIRCUMSTANCES.  IF THE UTTERANCES ARE THUS TO BE SEPARATED FROM THEIR
BACKGROUND, WE FIND IT DIFFICULT TO SUSTAIN A FINDING OF COERCION WITH
RESPECT TO THEM ALONE.  THE BULLETIN AND THE SPEECHES SET FORTH THE
RIGHT OF THE EMPLOYEES TO DO AS THEY PLEASE WITHOUT FEAR OF RETALIATION
BY THE COMPANY.  PERHAPS THE PURPORT OF THESE UTTERANCES MAY BE ALTERED
BY IMPONDERABLE SUBTLETIES AT WORK, WHICH IT IS NOT OUR FUNCTION TO
APPRAISE.  WHETHER THERE ARE SUFFICIENT FINDINGS AND EVIDENCE OF
INTERFERENCE, RESTRAINT, COERCION, AND DOMINATION, WITHOUT REFERENCE TO
THE BULLETIN AND THE SPEECHES, OR WHETHER THE WHOLE COURSE OF CONDUCT,
EVIDENCED IN PART BY THE UTTERANCES, WAS AIMED AT ACHIEVING OBJECTIVES
FORBIDDEN BY THE ACT, ARE QUESTIONS FOR THE BOARD TO DECIDE UPON THE
EVIDENCE.    HERE, WE ARE NOT SUFFICIENTLY CERTAIN FROM THE FINDINGS
THAT THE BOARD BASED ITS CONCLUSION WITH REGARD TO THE INDEPENDENT UPON
THE WHOLE COURSE OF CONDUCT REVEALED BY THIS RECORD.  RATHER, IT
APPEARS THAT THE BOARD RESTED HEAVILY UPON FINDINGS WITH REGARD TO THE
BULLETIN AND THE SPEECHES, THE ADEQUACY OF WHICH WE REGARD AS
DOUBTFUL.  WE THEREFORE REMAND THE CAUSE TO THE CIRCUIT COURT OF
APPEALS WITH DIRECTIONS TO REMAND IT TO THE BOARD FOR A REDETERMINATION
OF THE ISSUES IN THE LIGHT OF THIS OPINION.  WE DO NOT MEAN TO INTIMATE
ANY VIEWS OF OUR OWN AS TO WHETHER THE INDEPENDENT WAS DOMINATED, OR
SUGGEST TO THE BOARD WHAT ITS CONCLUSION SHOULD BE WHEN IT RECONSIDERS
THE CASE.  SINCE THE BOARD RESTED THE REMAINDER OF ITS ORDER IN LARGE
PART ON ITS FINDINGS WITH RESPECT TO THE DOMINATION OF THE INDEPENDENT,
WE DO NOT AT THIS TIME REACH THE OTHER PARTS OF THE BOARD'S ORDER,
INCLUDING THE COMMAND THAT THE CHECKED-OFF DUES AND ASSESSMENTS SHOULD
BE REFUNDED.  REVERSED AND REMANDED. 

FN1  THESE PROCEEDINGS WERE INSTITUTED ON CHARGES AND AMENDED CHARGES
FILED IN 1937 AND 1938 BY THE TRANSPORT WORKERS UNION OF AMERICA,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS, BY THE
AMALGAMATED ASSOCIATION OF STREET, ELECTRICAL RAILWAY, AND MOTOR COACH
EMPLOYEES OF AMERICA, AND BY THE INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, THE LATTER TWO BEING AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR.  THE COMPLAINT, AS AMENDED, CHARGED THAT THE
EMPLOYER, RESPONDENT IN NO. 25, HAD ENGAGED IN UNFAIR LABOR PRACTICES
WITHIN THE MEANING OF SEC. 8(1), (2), AND (3) OF THE ACT; 29 U.S.C.
SEC. 158(1), (2), AND (3).  THE INDEPENDENT ORGANIZATION OF EMPLOYEES
OF THE VIRGINIA ELECTRIC AND POWER COMPANY, RESPONDENT IN NO. 26, WAS
ALLOWED TO INTERVENE WITH RESPECT TO THE 8(2) CHARGE, WAS REPRESENTED
BY COUNSEL AND PARTICIPATED THROUGHOUT THE PROCEEDINGS. 

FN2  49 STAT. 449; 29 U.S.C. SEC. 151 ET SEQ. 

FN3  AMALGAMATED ASSOCIATION OF STREET, ELECTRICAL RAILWAY, AND MOTOR
COACH EMPLOYEES OF AMERICA. 

FN4  NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP.,
301 U.S. 1, AND COMPANION CASES. 

FN5  THE BULLETIN READ AS FOLLOWS:

    "APRIL 26, 1937. 

TO THE EMPLOYEES OF THE COMPANY: 

AS A RESULT OF RECENT NATIONAL LABOR ORGANIZATION ACTIVITIES AND THE
INTERPRETATION OF THE WAGNER LABOR ACT BY THE SUPREME COURT, EMPLOYEES
OF COMPANIES SUCH AS OURS MAY BE APPROACHED IN THE NEAR FUTURE BY
REPRESENTATIVES OF ONE OR MORE SUCH LABOR ORGANIZATIONS TO SOLICIT
THEIR MEMBERSHIP.  SUCH CAMPAIGNS ARE NOW BEING PRESSED IN VARIOUS
INDUSTRIES AND IN DIFFERENT PARTS OF THE COUNTRY AND STRIKES AND UNREST
HAVE DEVELOPED IN MANY LOCALITIES.  FOR THE LAST FIFTEEN YEARS THIS
COMPANY AND ITS EMPLOYEES HAVE ENJOYED A HAPPY RELATIONSHIP OF MUTUAL
CONFIDENCE AND UNDERSTANDING WITH EACH OTHER, AND DURING THIS PERIOD
THERE HAS NOT BEEN ANY LABOR ORGANIZATION AMONG OUR EMPLOYEES IN ANY
DEPARTMENT, SO FAR AS THE MANAGEMENT IS AWARE.  UNDER THESE
CIRCUMSTANCES, WE FEEL THAT OUR EMPLOYEES ARE ENTITLED TO KNOW CERTAIN
FACTS AND HAVE A STATEMENT AS TO THE COMPANY'S ATTITUDE WITH REFERENCE
TO THIS MATTER. 

THE COMPANY RECOGNIZES THE RIGHT OF EVERY EMPLOYEE TO JOIN ANY UNION
THAT HE MAY WISH TO JOIN, AND SUCH MEMBERSHIP WILL NOT AFFECT HIS
POSITION WITH THE COMPANY.  ON THE OTHER HAND, WE FEEL THAT IT SHOULD
BE MADE EQUALLY CLEAR TO EACH EMPLOYEE THAT IT IS NOT AT ALL NECESSARY
FOR HIM TO JOIN ANY LABOR ORGANIZATION, DESPITE ANYTHING HE MAY BE TOLD
TO THE CONTRARY.  CERTAINLY, THERE IS NO LAW WHICH REQUIRES OR IS
INTENDED TO COMPEL YOU TO PAY DUES TO, OR TO JOIN ANY ORGANIZATION. 

THIS COMPANY HAS ALWAYS DEALT WITH ITS EMPLOYEES IN FULL RECOGNITION
OF THE RIGHT OF EVERY INDIVIDUAL EMPLOYEE, OR GROUP OF EMPLOYEES, TO
DEAL DIRECTLY WITH THE COMPANY WITH RESPECT TO MATTERS AFFECTING THEIR
INTERESTS.  IF ANY OF YOU, INDIVIDUALLY OR AS A GROUP, AT ANY TIME,
HAVE ANY MATTER WHICH YOU WISH TO DISCUSS WITH US, ANY OFFICER OR
DEPARTMENT HEAD WILL BE GLAD, AS THEY ALWAYS HAVE BEEN, TO MEET WITH
YOU AND DISCUSS THEM FRANKLY AND FULLY.  IT IS OUR EARNEST DESIRE TO
STRAIGHTEN OUT IN A FRIENDLY MANNER, AS WE HAVE DONE IN THE PAST,
WHATEVER QUESTIONS YOU MAY HAVE IN MIND.  IT IS REASONABLE TO BELIEVE
THAT OUR INTERESTS ARE MUTUAL AND CAN BEST BE PROMOTED THROUGH
CONFIDENCE AND COOPERATION. 

     (SIGNED) J. G. HOLTZCLAW,

                               PRESIDENT." 

FN6  INCLUDED IN THOSE REQUESTS WAS A PETITION FROM A MAJORITY OF THE
NORFOLK TRANSPORTATION EMPLOYEES WHICH WAS THE RESULT OF TWO MEETINGS
ON COMPANY PROPERTY DURING WORKING HOURS ON MAY 11, 1937, IN RESPONSE
TO UNSIGNED NOTICES PLACED IN THE DISPATCHER'S OFFICE BY A. R. RUETT, A
CAR OPERATOR.  BOTH RUETT, AND R. E. ELLIOTT, WHO ASSUMED THE
LEADERSHIP IN THOSE METTINGS, TESTIFIED THAT SUPERINTENDENT BISHOP HAD
URGED THEM TO FORM AN INSIDE ORGANIZATION AFTER WARNING THEM AGAINST
THE C.I.O.  BISHOP DENIED THIS, AND THE BOARD MADE NO FINDING. 

FN7  "A SUBSTANTIAL NUMBER OF ITS EMPLOYEES REPRESENTING VARIOUS
DEPARTMENTS AND VARIOUS OCCUPATIONS HAVE APPROACHED THE COMPANY WITH
THE REQUEST THAT THE COMPANY CONSIDER WITH THEM THE MATTER OF THEIR
WORKING CONDITIONS AND WAGES.  IN OTHER WORDS, THEY HAVE REQUESTED
COLLECTIVE BARGAINING.  THE COMPANY'S POSITION WITH RESPECT TO THIS WAS
RECENTLY STATED IN A POSTED BULLETIN. 

"IN A COMPANY SUCH AS OURS, IF AN INDIVIDUAL OPERATOR, FOR EXAMPLE,
SHOULD ASK FOR HIMSELF BETTER WORKING CONDITIONS OR WAGES, THIS COMPANY
COULD NOT COMPLY WITH HIS REQUEST WITHOUT ALSO MAKING THE SAME
CONCESSIONS TO OTHER SIMILAR OPERATORS.  IN SUCH A CASE THE OPERATOR
WHO APPEALED INDIVIDUALLY WOULD, AS A PRACTICAL MATTER, BE BARGAINING
COLLECTIVELY FOR ALL OF HIS GROUP, WHICH IS NOT THE LOGICAL PROCEDURE. 

"THIS COMPANY IS WILLING TO CONSIDER THE REQUESTS MENTIONED ABOVE BUT
FEELS THAT, IN FAIRNESS TO ALL OF ITS EMPLOYEES AND TO ITSELF, IT
SHOULD AT THE SAME TIME CONSIDER OTHER GROUPS WHO HAVE NOT YET COME TO
IT.  IF THE APPROACHING NEGOTIATIONS ARE TO BE INTELLIGENT AND FAIR TO
ALL PROPERLY CONCERNED, THEY SHOULD BE CONDUCTED IN AN ORDERLY WAY, AND
ALL INTERESTED GROUPS SHOULD BE REPRESENTED IN THESE DISCUSSIONS BY
REPRESENTATIVES OF THEIR OWN CHOOSING, AS PROVIDED IN THE WAGNER
NATIONAL LABOR RELATIONS ACT, WHICH PROVIDES AS FOLLOWS: 

"'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
CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID OR PROTECTION.' 

"THE WAGNER ACT APPLIES ONLY TO EMPLOYEES WHOSE WORK IS IN OR
DIRECTLY AFFECTS INTERSTATE COMMERCE AND TO COMPANIES ENGAGED IN
INTERSTATE COMMERCE.  COUNSEL FOR THIS COMPANY ADVISE US THAT IN THEIR
OPINION THE PROVISIONS OF THE ACT DO NOT APPLY TO LOCAL TRANSPORTATION
EMPLOYEES, TO GAS EMPLOYEES IN NORFOLK, OR TO CERTAIN STRICTLY LOCAL
EMPLOYEES OF THE LIGHT AND POWER DEPARTMENT.  IN SPITE OF THIS, THE
COMPANY WANTS TO MAKE IT PERFECTLY CLEAR THAT ITS POLICY IS ONE OF
WILLINGNESS TO BARGAIN WITH ITS EMPLOYEES IN ANY MANNER SATISFACTORY TO
THE MAJORITY OF ITS EMPLOYEES AND THAT NO EMPLOYEE WILL BE
DISCRIMINATED AGAINST BECAUSE OF ANY LABOR AFFILIATIONS HE DESIRES TO
MAKE. 

"THE PETITIONS AND REPRESENTATIONS ALREADY RECEIVED INDICATE A DESIRE
ON THE PART OF THESE EMPLOYEES AT LEAST TO DO THEIR OWN BARGAINING, AND
WE ARE TAKING THIS MEANS OF LETTING YOU KNOW OUR WILLINGNESS TO PROCEED
WITH SUCH BARGAINING IN AN ORDERLY MANNER.  IN ORDER TO PROGRESS, IT
WOULD SEEM THAT THE FIRST STEP NECESSARY TO BE TAKEN BY YOU IS THE
FORMATION OF A BARGAINING AGENCY AND THE SELECTION OF AUTHORIZED
REPRESENTATIVES TO CONDUCT THIS BARGAINING IN SUCH AN ORDERLY MANNER. 

"THE WAGNER LABOR ACT PROHIBITS A COMPANY FROM 'DOMINATING OR
INTERFERING WITH THE FORMATION OR ADMINISTRATION OF ANY LABOR
ORGANIZATION OR CONTRIBUTING FINANCIAL OR OTHER SUPPORT TO IT.' 

"IN VIEW OF YOUR REQUEST TO BARGAIN DIRECTLY WITH THE COMPANY AND, IN
VIEW OF YOUR RIGHT TO SELF-ORGANIZATION AS PROVIDED IN THE LAW, IT WILL
FACILITATE NEGOTIATIONS IF YOU WILL PROCEED TO SET UP YOUR
ORGANIZATION, SELECT YOUR OWN OFFICERS AND ADVISERS, ADOPT YOUR OWN BY
LAWS AND RULES, AND SELECT YOUR REPRESENTATIVES TO MEET WITH THE
COMPANY OFFICIALS WHENEVER YOU DESIRE." 

FN8  VIRGINIA ELECTRIC & POWER CO. V. NATIONAL LABOR RELATIONS BOARD,
115 F.2D 414. 

FN9  IBID., 415-416. 

MR. JUSTICE ROBERTS AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :




UNITED STATES V. TEXAS, 314 U.S. 480 


NO. 44.  ARGUED NOVEMBER 19, 21, 1941.  - DECIDED DECEMBER 22, 1941.  -
138 S.W.2D 924, REVERSED. 


1.  UNDER R.S. SEC. 3466, IN THE DISTRIBUTION OF ASSETS OF AN
INSOLVENT DEBTOR THROUGH A GENERAL RECEIVERSHIP, AN UNSECURED TAX CLAIM
OF THE UNITED STATES TAKES PRIORITY OVER THE LIKE CLAIM OF A STATE.  P.
483. 

2.  THE PRIORITY OF UNSECURED CLAIMS OF THE UNITED STATES UNDER R.S.
SEC. 3466 ATTACHES UPON THE TAKING OVER OF THE INSOLVENT DEBTOR'S
PROPERTY BY A GENERAL RECEIVERSHIP AND CAN NOT BE DIVESTED BY
SUBSEQUENT PROCEEDINGS FOR THE PERFECTION OF LIENS CLAIMED BY A STATE. 
P. 486. 

3.  ARTICLE 7065A-7 OF THE TEXAS CIVIL STATUTES DECLARES THAT ALL
GASOLINE TAXES DUE BY ANY DISTRIBUTOR TO THE STATE "SHALL BE A
PREFERRED LIEN, FIRST AND PRIOR TO ANY AND ALL OTHER EXISTING LIENS,
UPON ALL THE PROPERTY OF ANY DISTRIBUTOR, DEVOTED TO OR USED IN HIS
BUSINESS AS A DISTRIBUTOR  ...  "  HELD, THAT THE LIEN THUS CREATED IS
NOT A SPECIFIC AND PERFECT LIEN ENTITLED TO PRIORITY, DESPITE R.S. SEC.
3466, OVER A CLAIM OF THE UNITED STATES, BUT IS AN INCHOATE AND GENERAL
LIEN REQUIRING FURTHER PROCEDURE TO DEFINE AND ENFORCE IT.  P. 484. 

UNITED STATES V. TEXAS ET AL. 

CERTIORARI TO THE COURT OF CIVIL APPEALS, SECOND JUDICIAL DISTRICT,
OF TEXAS. 

CERTIORARI, 313 U.S. 554, TO REVIEW A JUDGMENT ENTERED IN ACCORDANCE
WITH ANSWERS MADE BY THE SUPREME COURT OF TEXAS TO QUESTIONS CERTIFIED
TO IT BY THE COURT BELOW.  THE JUDGMENT, REVERSING A DECISION OF THE
COURT OF FIRST INSTANCE, UPHELD THE CLAIM OF THE STATE TO PRIORITY OVER
A CLAIM OF THE UNITED STATES IN THE LIQUIDATION OF THE ASSETS OF AN
INSOLVENT DEBTOR. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

W. L. NIX WAS A MANUFACTURER AND DISTRIBUTOR OF MOTOR FUEL, DOING
BUSINESS IN TEXAS UNDER THE NAME OF TEXAS REFINERY.  ON NOVEMBER 20,
1933, M. R. INGRAHAM, WHO HELD A DEMAND NOTE SECURED BY A CHATTEL
MORTGAGE ON CERTAIN TANKS BELONGING TO NIX, BROUGHT AN ACTION IN THE
DISTRICT COURT OF GREGG COUNTY, TEXAS.  HE ALLEGED THAT DEMAND HAD BEEN
MADE ON THE NOTE, THAT IT HAD NOT BEEN PAID, THAT NIX OWNED NO PROPERTY
IN TEXAS OTHER THAN THAT OF TEXAS REFINERY, THAT THE VALUE OF THE
MORTGAGED TANKS WAS INSUFFICIENT TO DISCHARGE THE NOTE, THAT THE TANKS
WERE NOT USED "FOR A SEPARATE PURPOSE" BUT IN THE "OPERATION OF THE
SAID REFINERY AS A UNIT," AND THAT NIX WAS INSOLVENT.  HE ASKED THAT
JUDGMENT BE ENTERED IN HIS FAVOR FOR THE AMOUNT OF THE NOTE, THAT THE
MORTGAGE BE FORECLOSED, AND THAT IN THE MEANTIME A RECEIVER BE PLACED
IN CHARGE OF "THE WHOLE OF THE PROPERTY" OF TEXAS REFINERY.  ON THE
SAME DAY A RECEIVER WAS APPOINTED, AND HE WAS SUBSEQUENTLY AUTHORIZED
TO SELL ALL OF THE REFINERY PROPERTY. 

ON NOVEMBER 21, R. P. ASH INTERVENED IN THE PROCEEDINGS AS THE HOLDER
OF AN OVERDUE NOTE SECURED BY A MORTGAGE ON THE PHYSICAL PLANT OF THE
REFINERY NOT SUBJECT TO THE INGRAHAM MORTGAGE.  BOTH THE STATE OF TEXAS
AND THE UNITED STATES THEN INTERVENED WITH THE CLAIMS FOR STATE AND
FEDERAL GASOLINE TAXES, WHICH ARE THE SUBJECT OF THE PRESENT DISPUTE. 
LATER, BOTH THE INGRAHAM AND ASH MORTGAGE NOTES WERE ASSIGNED TO HOWARD
DAILEY. 

THE DISTRICT COURT FOUND THAT NIX WAS INSOLVENT ON NOVEMBER 20, 1933,
AND CONTINUED TO BE INSOLVENT THEREAFTER.  THE SUM AVAILABLE FOR
DISTRIBUTION AFTER SALE OF THE REFINERY PROPERTY BY THE RECEIVER WAS
$7466.92.  THE COURT FOUND THAT, OF THESE PROCEEDS, $1294.80 WAS
ALLOCABLE TO THOSE ASSETS WHICH WERE SUBJECT TO THE MORTGAGES HELD BY
DAILEY, AND IT ORDERED THAT HIS CLAIM TO THAT AMOUNT BE FIRST
SATISFIED.  IT DETERMINED THAT NIX WAS LIABLE TO THE UNITED STATES FOR
$19,343.91 IN FEDERAL GASOLINE TAXES, AND TO TEXAS FOR $40,312.51 IN
STATE GASOLINE TAXES.  AS BETWEEN THE STATE AND FEDERAL CLAIMS, IT
DECIDED THAT THE UNITED STATES WAS ENTITLED TO PRIORITY, AND CONCLUDED
THAT NOTHING WOULD BE LEFT TO APPLY TO THE TEXAS CLAIM. 

FROM THIS ORDER TEXAS APPEALED TO THE COURT OF CIVIL APPEALS FOR THE
SECOND DISTRICT.  THAT COURT CERTIFIED THE CONTROLLING QUESTIONS TO THE
SUPREME COURT OF TEXAS.  THE SUPREME COURT, ON THE AUTHORITY OF STATE
V. WYNNE, 134 TEX. 455, 133 S.W.2D 951, A COMPANION CASE DECIDED THE
SAME DAY, ANSWERED THE QUESTIONS IN SUCH A WAY AS TO REQUIRE THAT THE
CLAIM OF TEXAS BE FIRST SATISFIED, THAT OF DAILEY SECOND, AND THAT OF
THE UNITED STATES THIRD.  THE COURT OF CIVIL APPEALS THEREUPON SO
RULED, NOTING THAT THE ASSETS AVAILABLE WOULD NOT COMPLETELY SATISFY
EVEN THE CLAIM OF TEXAS AND THAT DAILEY AND THE UNITED STATES WOULD
RECEIVE NOTHING.  A MOTION BY THE UNITED STATES FOR A REHEARING WAS
DENIED, AND THE SUPREME COURT OF TEXAS REFUSED TO REVIEW THE DECISION
OF THE COURT OF CIVIL APPEALS.  WE GRANTED THE PETITION OF THE UNITED
STATES FOR CERTIORARI BECAUSE OF THE IMPORTANT QUESTION OF THE FISCAL
RELATIONSHIP BETWEEN STATE AND FEDERAL GOVERNMENTS WHICH IS INVOLVED. 

NO QUESTION AS TO THE RIGHTS OF DAILEY, THE MORTGAGEE, IS RAISED BY
THIS APPEAL.  WE CONFINE OURSELVES, THEREFORE, TO THE ONLY QUESTION
PRESENTLY OPEN TO DECISION:  THE RELATIVE PRIORITY OF THE CLAIMS OF THE
UNITED STATES AND TEXAS. 

THE UNITED STATES RESTS ITS ASSERTION OF PRIORITY UPON SEC. 3466 OF
THE REVISED STATUTES.  FN1 DESPITE THE CONTENTION OF TEXAS TO THE
CONTRARY, THAT SECTION CLEARLY APPLIES TO THIS PROCEEDING.  AS WE
RECENTLY REMARKED IN UNITED STATES V. EMORY,  FN2  SEC. 3466 COVERS IN
TERMS THE CASE OF AN INSOLVENT DEBTOR WHO HAS COMMITTED AN ACT OF
BANKRUPTCY, AND THERE ARE FEW MORE FAMILIAR EXAMPLES OF AN ACT OF
BANKRUPTCY THAN THE APPOINTMENT OF A RECEIVER BECAUSE OF THE DEBTOR'S
INSOLVENCY.  CF. SEC. 3(A)(4) OF THE BANKRUPTCY ACT, U.S.C., TITLE 11,
SEC. 21(A)(4).  HERE THE DISTRICT COURT EXPRESSLY FOUND THAT NIX WAS
INSOLVENT, AND IT APPOINTED A RECEIVER.  IT IS TRUE THAT THE ORIGINAL
PETITION WAS FILED BY A MORTGAGEE RATHER THAN BY A GENERAL CREDITOR. 
BUT, IF ANY LIMITATIONS UPON THE OPERATION OF SEC. 3466 MIGHT OTHERWISE
HAVE FLOWED FROM THIS CIRCUMSTANCE, THEY WERE REMOVED BY THE SUBSEQUENT
CHARACTER OF THE PROCEEDING.  THE RECEIVER WAS PLACED IN CONTROL OF ALL
OF NIX'S ASSETS, RATHER THAN ONLY THOSE SUBJECT TO THE MORTGAGE, AND
ALL OF THE ASSETS WERE EVENTUALLY LIQUIDATED.  PARTIES OTHER THAN THE
MORTGAGEE, INCLUDING TEXAS ITSELF, INTERVENED AND WERE HEARD.  WE THINK
THAT REALITIES REQUIRE US TO TREAT THE PROCEEDING AS A GENERAL EQUITY
RECEIVERSHIP WITHIN THE SCOPE OF SEC. 3466. 

WE ARE THUS BROUGHT TO THE IMPORTANT ISSUE IN THE CASE.  ARTICLE
7065A-7 OF THE TEXAS CIVIL STATUTES DECLARED THAT ALL GASOLINE TAXES
DUE BY ANY DISTRIBUTOR TO THE STATE "SHALL BE A PREFERRED LIEN, FIRST
AND PRIOR TO ANY AND ALL OTHER EXISTING LIENS, UPON ALL OF THE PROPERTY
OF ANY DISTRIBUTOR, DEVOTED TO OR USED IN HIS BUSINESS AS A DISTRIBUTOR
...  "  FN3  IT IS THE STATE'S POSITION THAT UNDER THIS SECTION IT
HELD A SPECIFIC AND PERFECTED LIEN UPON THE REFINERY PROPERTY WHICH
ENTITLED IT TO PRIORITY DESPITE SEC. 3466 OF THE REVISED STATUTES. 

DUE TO THE UNITED STATES SHALL BE FIRST SATISFIED."  IT IS NEVERTHELESS
TRUE THAT IN SEVERAL EARLY DECISIONS THIS COURT READ AN EXCEPTION INTO
THE SECTION IN THE CASE OF PREVIOUSLY EXECUTED MORTGAGES.  THELUSSON V.
SMITH, 2 WHEAT.  396, 426; CONARD V. ATLANTIC INSURANCE CO., 1 PET.
386; BRENT V. BANK OF WASHINGTON, 10 PET. 596, 611, 612.  THIS DOCTRINE
SEEMS TO HAVE BEEN BASED ON THE THEORY THAT MORTGAGED PROPERTY PASSES
TO THE MORTGAGEE AND IS NO LONGER A PART OF THE ESTATE OF THE
MORTGAGOR.  SEE CONARD V. ATLANTIC INSURANCE CO., SUPRA, AT 441-442. 
THE QUESTION OF WHETHER THE PRIORITY OF THE UNITED STATES UNDER SEC.
3466 WOULD ALSO BE DEFEATED BY A SPECIFIC AND PERFECTED LIEN UPON
PROPERTY, WHOSE TITLE REMAINED IN THE DEBTOR WAS RESERVED IN THOSE
CASES.  IBID.; BRENT V. BANK OF WASHINGTON, SUPRA, AT 611-612. 
HOWEVER, IT WAS DETERMINED THAT A GENERAL JUDGMENT LIEN UPON THE LANDS
OF AN INSOLVENT DEBTOR DOES NOT TAKE PRECEDENCE OVER CLAIMS OF THE
UNITED STATES UNLESS EXECUTION OF THE JUDGMENT HAS PROCEEDED FAR ENOUGH
TO TAKE THE LAND OUT OF THE POSSESSION OF THE DEBTOR.  THELUSSON V.
SMITH, SUPRA, AT 425-426. 

IN MORE RECENT YEARS THE COURT HAS HAD OCCASION TO CONSIDER THE
ARGUMENT THAT LIENS CREATED IN FAVOR OF STATES OR COUNTIES BY STATE
STATUTES ENTITLED THEM TO PRIORITY OVER THE UNITED STATES UNDER SEC.
3466.  IN SPOKANE COUNTY V. UNITED STATES, 279 U.S. 80, THE PRIORITY OF
THE UNITED STATES WAS UPHELD.  THE STATE STATUTES INVOLVED PROVIDED
THAT IF A CERTAIN PERSONAL PROPERTY TAX WAS NOT PAID, AND IF THE
PERSONAL PROPERTY AGAINST WHICH IT HAD BEEN ASSESSED WAS NO LONGER IN
THE HANDS OF THE DELINQUENT TAXPAYER, THE AMOUNT OF THE UNPAID TAX
SHOULD BECOME A LIEN UPON ALL THE REAL AND PERSONAL PROPERTY OF THE
TAXPAYER.  THEY WENT ON TO PRESCRIBE THE PROCEDURE BY WHICH THE LIEN
WAS TO BE ENFORCED.  THE COURT DETERMINED THAT THE STATUTORY LIEN DID
NOT BECOME SPECIFIC UNTIL THIS PROCEDURE HAD BEEN FOLLOWED.  SINCE
THESE PROCEDURAL CONDITIONS HAD NOT BEEN SATISFIED IN THE CASE BEFORE
IT, THE COURT REFUSED PRIORITY TO THE TAX CLAIMS OF THE COUNTY.  IT
SPECIFICALLY DECLINED TO CONSIDER WHAT "THE EFFECT OF MORE COMPLETED
PROCEDURE IN THE PERFECTING OF THE LIENS UNDER THE LAW OF THE STATE"
WOULD HAVE BEEN.  279 U.S. AT 95. 

THE NEW YORK STATUTE IN NEW YORK V. MACLAY, 288 U.S. 290, DECLARED
THAT THE CORPORATE FRANCHISE TAX THERE INVOLVED SHOULD "BE A LIEN AND
BINDING UPON THE REAL AND PERSONAL PROPERTY OF THE CORPORATION  ...
UNTIL THE SAME IS PAID IN FULL."  288 U.S. AT 292.  ALTHOUGH THE
FRANCHISE TAXES IN QUESTION WERE OVERDUE, THE STATE HAD TAKEN NO STEPS
TO PERFECT AND LIQUIDATE ITS LIEN AT THE TIME THE RECEIVER WAS
APPOINTED FOR THE INSOLVENT CORPORATION.  UNDER SUCH CIRCUMSTANCES, THE
COURT WAS OF THE OPINION THAT THE TAX CLAIM OF THE STATE DID NOT
DEPRIVE THE CLAIM OF THE UNITED STATES OF ITS PRIORITY UNDER SEC.
3466.  IT WAS AT PAINS TO MAKE CLEAR, HOWEVER, THAT IT INTENDED BY ITS
DECISION TO LEND NO SUPPORT TO THE ASSUMPTION THAT THE DOCTRINE OF THE
MORTGAGE CASES, WHATEVER ITS CURRENT VITALITY, WOULD REQUIRE THE
SUBORDINATION OF UNSECURED CLAIMS OF THE UNITED STATES TO A SPECIFIC
AND PERFECTED LIEN.  288 U.S. AT 293-294.  FN4 

WE THINK THAT IT IS EQUALLY UNNECESSARY TO TEST THAT ASSUMPTION
HERE.  PRIOR TO THE APPOINTMENT OF THE RECEIVER ON NOVEMBER 20, 1933,
THE STATE OF TEXAS HAD MADE NO MOVE TO ASSERT THE LIEN PROCLAIMED IN
ARTICLE 7065A-7.  AND THE PRIORITY WHICH ATTACHED TO THE CLAIM OF THE
UNITED STATES ON THAT DAY (UNITED STATES V. OKLAHOMA, 261 U.S. 253,
260) COULD NOT BE DIVESTED BY ANY SUBSEQUENT PROCEEDINGS IN CONNECTION
WITH THE STATE'S LIEN.  NEW YORK V. MACLAY, SUPRA, AT 293. 

IT IS URGED, HOWEVER, THAT ARTICLE 7065A-7 BY ITS OWN FORCE CREATES A
SPECIFIC AND PERFECTED LIEN.  SUPPORT FOR THIS CONTENTION IS SAID TO
LIE IN THE FACT THAT THE STATUTORY LIEN PURPORTS TO AFFECT ONLY THE
PROPERTY OF THE DISTRIBUTOR WHICH IS "DEVOTED TO OR USED IN HIS
BUSINESS AS A DISTRIBUTOR," RATHER THAN HIS PROPERTY IN GENERAL.  THIS
IS THOUGHT TO MAKE THE LIEN SUFFICIENTLY SPECIFIC.  MOREOVER, THE STATE
ARGUES, AND THE SUPREME COURT OF TEXAS HAS DECLARED,  FN5  THAT THE
PROVISIONS OF THE TEXAS CIVIL STATUTES WHICH GOVERN THE LEVY, SEIZURE
AND SALE OF THE PROPERTY OF DELINQUENT TAXPAYERS GENERALLY  FN6  ARE
INAPPLICABLE TO THE GASOLINE TAX.  WE ARE OF COURSE BOUND BY THIS
AUTHORITATIVE CONSTRUCTION OF THE STATUTE. 

WITH RESPECT TO THIS CONTENTION IT MAY FIRST BE SAID THAT THE
"PROPERTY DEVOTED TO OR USED IN HIS BUSINESS AS A DISTRIBUTOR" IS
NEITHER SPECIFIC NOR CONSTANT.  BUT A MORE IMPORTANT CONSIDERATION IS
THAT THE AMOUNT OF THE CLAIM SECURED BY THE LIEN IS UNLIQUIDATED AND
UNCERTAIN.  AS WE SAID IN NEW YORK V. MACLAY:  "IF THE STATE WERE TO
...  OMIT TO ASCERTAIN THE DEBT, IT WOULD NEVER BE ABLE TO SELL
ANYTHING, FOR IT WOULD NOT KNOW HOW MUCH TO SELL."  288 U.S. AT 293. 
THAT THE LEGISLATURE OF TEXAS RECOGNIZED THIS IS REVEALED BY ANOTHER
OF DEFAULT, WHEN IT MIGHT BECOME NECESSARY FOR THE STATE "TO BRING SUIT
OR TO INTERVENE  ...  FOR THE ESTABLISHMENT OR COLLECTION" OF ITS
CLAIMS IN JUDICIAL PROCEEDINGS, THE TAX REPORTS REQUIRED OF THE
DISTRIBUTOR BY OTHER PROVISIONS OF THE STATUTE  FN7  SHOULD BE "PRIMA
FACIE EVIDENCE OF THE CONTENTS THEREOF," BUT "THE INCORRECTNESS OF SAID
REPORT OR AUDIT MAY BE SHOWN."  THUS, IT WAS CLEARLY ENVISAGED THAT THE
AMOUNT OF THE TAXES DUE, FOR WHICH THE LIEN WAS SECURITY, SHOULD BE
LEFT TO DETERMINATION BY THE COURTS. 

AS TO THE NATURE OF THE PROPER PROCEDURE FOR LEVY, SEIZURE, AND SALE,
IT IS ENOUGH TO SAY THAT SOME PROCEDURE IS ESSENTIAL.  AS WE HAVE
INDICATED, THE STATUTORY SCHEME REVEALS THAT THE LEGISLATURE
CONTEMPLATED RESORT TO THE COURTS.  IN ADDITION TO THE STATUTORY
PROVISIONS REFERRED TO ABOVE, ARTICLE 7065A-8(E) REGULATES THE
PLEADINGS IN SUITS BY THE ATTORNEY GENERAL TO COLLECT THE TAX, AND
ARTICLE 7065A-9 DETERMINES THE VENUE OF SUCH SUITS.  CONSEQUENTLY,
WHILE IT WAS CLEARLY INTENDED BY ARTICLE 7065A-7 TO CREATE A LIEN IN
FAVOR OF THE STATE, WE MUST CONCLUDE THAT OF NECESSITY IT WAS NOTHING
MORE THAN AN INCHOATE AND GENERAL LIEN.  CERTAINLY IT DID NOT OF ITS
OWN FORCE DIVEST THE TAXPAYER OF EITHER TITLE OR POSSESSION.  IT COULD
NOT BECOME SPECIFIC UNTIL THE EXACT AMOUNT OF THE TAXES DUE HAD BEEN
DETERMINED, AND IT COULD NOT BE ENFORCED WITHOUT THE ASSISTANCE OF THE
COURTS.  LIKE THE TAX LIEN IN NEW YORK V. MACLAY, SUPRA, IT SERVED
"MERELY AS A CAVEAT OF A MORE PERFECT LIEN TO COME."  288 U.S. AT 294. 

WE ARE NOT NOW CALLED UPON TO DECIDE WHETHER THE CHATTEL MORTGAGES
HELD BY DAILEY ARE ENTITLED TO PRIORITY OVER THE CLAIM OF THE UNITED
STATES.  FN8  WE HOLD ONLY THAT THE TAX CLAIM OF THE UNITED STATES IS
ENTITLED TO PRIORITY OVER THE TAX CLAIM OF TEXAS.  THE CASE IS REMANDED
TO THE COURT OF CIVIL APPEALS FOR PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED. 

FN1  U.S. REV. STAT. SEC. 3466(U.S.C., TITLE 31, SEC. 191) PROVIDES:
"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 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."    FN2  ANTE, P. 423. 

FN3  THE FULL TEXT OF THE PARAGRAPH, AS OF NOV. 20, 1933, WHEN THE
RECEIVER WAS APPOINTED READ: "ALL TAXES, FINES, PENALTIES AND INTEREST
DUE BY ANY DISTRIBUTOR TO THE STATE SHALL BE A PREFERRED LIEN, FIRST
AND PRIOR TO ANY AND ALL OTHER EXISTING LIENS, UPON ALL OF THE PROPERTY
OF ANY DISTRIBUTOR, DEVOTED TO OR USED IN HIS BUSINESS AS A
DISTRIBUTOR, WHICH PROPERTY SHALL INCLUDE REFINERY, BLENDING PLANTS,
STORAGE TANKS, WAREHOUSES, OFFICE BUILDINGS AND EQUIPMENT, TANK TRUCKS
OR OTHER MOTOR VEHICLES, OR ANY OTHER PROPERTY DEVOTED TO SUCH USE, AND
EACH TRACT OF LAND ON WHICH SUCH REFINERY, BLENDING PLANT, TANKS OR
OTHER PROPERTY IS LOCATED, OR WHICH IS USED IN CARRYING ON SUCH
BUSINESS."  THIS SECTION WAS REPEALED ON MAY 1, 1941 BY ARTICLE XVII,
SEC. 28 OF THE ACTS OF THE 47TH LEGISLATURE, AND SIMULTANEOUSLY
REPLACED WITHOUT SIGNIFICANT CHANGE BY A NEW ARTICLE 7065B-8. 

FN4  IN UNITED STATES V. OKLAHOMA, 261 U.S. 253, THE QUESTION WAS NOT
REACHED BECAUSE IT WAS FOUND THAT THE "INSOLVENCY" UPON WHICH THE
OPERATION OF SEC. 3466 IS CONDITIONED WAS ABSENT.  THE COURT SUSTAINED
THE PRIORITY OF THE UNITED STATES UNDER SEC. 3466 IN UNITED STATES V.
KNOTT, 298 U.S. 544.  THE FLORIDA STATUTES THERE INVOLVED REQUIRED
FOREIGN SURETY CORPORATIONS TO DEPOSIT CERTAIN BONDS WITH THE STATE
TREASURER FOR THE PROTECTION OF FLORIDA RESIDENTS.  THIS ARRANGEMENT
WAS HELD TO CREATE NO MORE THAN "AN INCHOATE GENERAL LIEN" FOR THE
BENEFIT OF UNKNOWN PERSONS WHO MIGHT BECOME ENTITLED TO THE FUND, AND
NOT TO LIMIT THE EFFECT OF SEC. 3466. 

FN5  STATE V. WYNNE, 134 TEX. 455, AT 473. 

FN6  SEE, ESP., ARTICLES 7266, 7272, AND 7275 OF THE TEXAS CIVIL
STATUTES. 

FN7  ARTICLE 7065A, SECS. 2(B), 2(D), 8(A), AND 8(B). 

FN8  THE TEXTS OF THE MORTGAGES ARE NOT CONTAINED IN THE RECORD:  AND
DAILEY DID NOT APPEAR IN THIS COURT. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







DUCKWORTH V. ARKANSAS, 314 U.S. 390 


NO. 43.  ARGUED NOVEMBER 17, 18, 1941.  - DECIDED DECEMBER 15, 1941.  -
201 ARK. 1123, 148 S.W.2D 656, AFFIRMED. 


A STATUTE OF ARKANSAS, REQUIRING A PERMIT FOR THE TRANSPORTATION OF
INTOXICATING LIQUOR THROUGH THE STATE, WHICH MAY BE OBTAINED UPON
APPLICATION, FOR A NOMINAL FEE - THE OBJECT OF THE REGULATION BEING
MERELY TO IDENTIFY THOSE WHO ENGAGE IN SUCH TRANSPORTATION, THEIR
ROUTES AND POINTS OF DESTINATION, THUS ENABLING LOCAL OFFICIALS TO
INSURE TRANSPORTATION WITHOUT DIVERSION, IN CONFORMITY WITH THE PERMIT
IS NOT VIOLATIVE OF THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION. 
P. 396. 

DUCKWORTH V. ARKANSAS. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

APPEAL FROM A JUDGMENT AFFIRMING A CONVICTION AND SENTENCE FOR
TRANSPORTATION OF LIQUOR WITHOUT A PERMIT IN VIOLATION OF A STATE LAW. 

THE ACTS OF CONGRESS DEALING WITH INTERESTATE COMMERCE IN
INTOXICATING LIQUORS DO NOT CONFER UPON THE STATE ANY POWER WHATSOEVER
TO REGULATE A SHIPMENT OF INTOXICANTS WHICH IS MERELY PASSING THROUGH
THE STATE.  THESE ACTS USE THE WORD "INTO" AS DISTINGUISHED FROM
"THROUGH," AND THERE IS NO BASIS FOR A REGULATION SUCH AS THAT HERE
INVOLVED. 

EACH STATE HAS POWER TO PROHIBIT THE MANUFACTURE OF LIQUORS WITHIN
ITS BORDERS AND TO PROHIBIT OR CONDITION THEIR EXPORT FROM THE STATE,
ZIFFRIN, INC. V. REEVES, 308 U.S. 132; ALSO THE POWER TO CONDITION OR
ABSOLUTELY PROHIBIT THE IMPORTATION INTO IT OF ALL INTOXICANTS. 
CONST., 21ST AMENDMENT; STATE BOARD OF EQUALIZATION V. YOUNG'S MARKET
CO., 299 U.S. 59.  BUT THERE IS NOTHING IN THE FEDERAL CONSTITUTION OR
STATUTES, NOR IN THE DECISIONS OF THIS COURT, WHICH SANCTIONS THE
ARKANSAS REGULATION. 

IF THE STATE MAY DEMAND A PERMIT FROM ONE CLASS OF TRANSPORTER, IT
MAY DEMAND IT FROM ALL.  EVERY AUTOMOBILE, TRUCK, TRAIN, WAGON, OR
BOAT, AND INDEED EVERY PERSON, IS SUBJECT TO SEARCH AND POSSIBLE ARREST
UPON ENTERING THE STATE.  THIS IS WHAT ART. I, SEC. 8, CL. 3, OF THE
CONSTITUTION WAS DESIGNED TO PREVENT. 

ARKANSAS HAS BUILT THROUGH ROADS ACROSS THE STATE AND HAS PROVIDED
FOR POLICE PROTECTION, INSPECTION, ETC., THEREON.  THE STATUTE REQUIRES
PERSONS TRANSPORTING LIQUOR INTO THE STATE AND ACROSS IT, ON THESE
THROUGH ROADS, TO TAKE OUT A PERMIT FROM THE STATE COMMISSIONER OF
REVENUES.  ONE OF THE PURPOSES IN REQUIRING SUCH A PERMIT IS TO ENABLE
THE STATE TO CHECK UP ON BOOTLEGGERS USING THE HIGHWAYS, TO SEE THAT
THEY DO NOT DUMP THEIR STOCKS INTO THE STATE.  WHEN A PERMIT IS
OBTAINED, A STATE POLICEMAN CAN BE ASSIGNED TO EACH SHIPMENT OF LIQUOR
AS IT COMES INTO AND ACROSS THE STATE, AND THERE IS NO CHANCE FOR
ANYTHING TO GO WRONG.  IT IS OTHERWISE IF THOSE TRANSPORTING LIQUOR MAY
CROSS THE STATE WITHOUT SUPERVISION. 

THE REGULATION APPLIES TO INTERSTATE AND INTRASTATE TRAFFIC WITHOUT
DISCRIMINATION.  CONGRESS HAS NOT ACTED IN THIS PARTICULAR MATTER;
THEREFORE, THE STATE HAD THE RIGHT TO DO SO, EVEN THOUGH INTERSTATE
COMMERCE WAS BURDENED TO SOME EXTENT. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

APPELLANT WAS CONVICTED AND FINED BY AN ARKANSAS COURT FOR
TRANSPORTING INTOXICATING LIQUOR THROUGH THE STATE WITHOUT A PERMIT AS
REQUIRED BY AN ARKANSAS STATUTE.  THE QUESTION FOR DECISION IS WHETHER
THIS STATUTORY REQUIREMENT AND ITS PENAL SANCTION UNDULY ENCROACH UPON
THE POWER OVER INTERSTATE COMMERCE DELEGATED TO CONGRESS.  THE ARKANSAS
SUPREME COURT SUSTAINED THE REQUIREMENT OF THE PERMIT AS A LOCAL POLICE
REGULATION PERMISSIBLE UNDER THE COMMERCE CLAUSE.  201 ARK. 1123, 148
S.W.2D 656.  THE CASE COMES HERE ON APPEAL UNDER THE PROVISIONS OF SEC.
237(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 344(A), SEC. 861(A)(B). 

109 OF 1935, UNDER WHICH APPELLANT WAS CONVICTED, MAKES IT UNLAWFUL FOR
ANY PERSON TO SHIP INTO THE STATE ANY DISTILLED SPIRITS WITHOUT FIRST
HAVING OBTAINED A PERMIT FROM THE STATE COMMISSIONER OF REVENUE.  THE
STATUTE PROVIDES THAT THE FORM OF PERMIT AND THE SHIPMENTS INTO THE
STATE SHALL BE GOVERNED BY RULES AND REGULATIONS PROMULGATED BY THE
COMMISSIONER.  APPELLANT WAS TRIED UPON A STIPULATION OF FACTS WHICH
TENDED TO SHOW THAT, WHEN ARRESTED IN ARKANSAS, HE WAS ENGAGED IN
TRANSPORTING BY MOTOR TRUCK, WITHOUT A PERMIT, A LOAD OF DISTILLED
SPIRITS FROM A POINT IN ILLINOIS TO A POINT IN MISSISSIPPI.  THE STATE
COURT HELD THAT THIS VIOLATED SEC. 14177.  AT THE TIME OF THE OFFENSE,
THERE WERE NO REGULATIONS SPECIFICALLY APPLICABLE TO TRANSPORTATION
PASSING THROUGH THE STATE, THE REGULATIONS THEN IN FORCE BEING ADAPTED
TO TRANSPORTATION FOR DELIVERY WITHIN THE STATE OR FROM POINT TO POINT
WITHIN THE STATE. 

WE HAVE NO OCCASION TO DECIDE WHETHER THE ARKANSAS STATUTE, WHEN
APPLIED TO TRANSPORTATION PASSING THROUGH THAT STATE FOR DELIVERY OR
USE IN ANOTHER, DERIVES SUPPORT FROM THE TWENTY-FIRST AMENDMENT, WHICH
PROHIBITS THE "TRANSPORTATION OR IMPORTATION" OF INTOXICATING LIQUORS
"INTO ANY STATE  ...  FOR DELIVERY OR USE THEREIN" IN VIOLATION OF ITS
LAWS, CF. UNITED STATES V. GUDGER, 249 U.S. 373.  NOR NEED WE DECIDE
WHETHER APPELLANT'S ADMISSION THAT THE TRANSPORTED LIQUOR WAS INTENDED
FOR IMPORTATION INTO MISSISSIPPI FOR ILLEGAL USE THERE ESTABLISHES A
VIOLATION OF THE TWENTY-FIRST AMENDMENT WHILE HE WAS IN ARKANSAS, SO AS
TO DEPRIVE HIM OF THE RIGHT TO SEEK PROTECTION OF THE COMMERCE CLAUSE
ON HIS JOURNEY THROUGH ARKANSAS, CF. MCFARLAND V. AMERICAN SUGAR RFG. 
CO., 241 U.S. 79, 84-5.  WE MAY ALSO ASSUME THAT APPELLANT'S ADMISSION
NO MORE DEPRIVES HIM OF THE RIGHT TO INVOKE THE PROTECTION OF THE
COMMERCE CLAUSE AGAINST THE ARKANSAS STATUTE THAN DID INTENDED
VIOLATION BY THE IMPORTER OF THE LIQUOR LAWS OF THE STATE OF
DESTINATION BEFORE THE ADOPTION OF THE WEBB-KENYON ACT, 37 STAT. 699,
AND THE TWENTY-FIRST AMENDMENT.  SEE BOWMAN V. CHICAGO & N.W. RY. CO.,
125 U.S. 465; LEISY V. HARDIN, 135 U.S. 100.  FOR WE ARE OF THE OPINION
THAT, UPON PRINCIPLES OF CONSTITUTIONAL INTERPRETATION CONSISTENTLY
ACCEPTED AND FOLLOWED BY THIS COURT EVER SINCE THE DECISIONS IN WILLSON
V. BLACK BIRD CREEK MARSH CO., 2 PET. 245, AND COOLEY V. BOARD OF
WARDENS, 12 HOW.  299, THE COMMERCE CLAUSE DOES NOT FORECLOSE THE
ARKANSAS REGULATION WITH WHICH WE ARE NOW CONCERNED. 

THE COMMERCE HERE IS TRANSPORTATION ALONE, THERE BEING NO QUESTION OF
SALE OR USE WITHIN THE STATE OF REGULATION.  WE MAY THEREFORE PUT TO
ONE SIDE THE CASES IN WHICH LOCAL RESTRICTIONS OR PROHIBITIONS ON SALE
OR USE OF INTOXICATING LIQUOR OR OTHER ARTICLES OF COMMERCE, UNAIDED BY
ACTS OF CONGRESS, HAVE BEEN DEEMED A PROHIBITED BURDEN ON INTERSTATE
COMMERCE, SEE BOWMAN V. CHICAGO & N.W. RY. CO., SUPRA; LEISY V. HARDIN,
SUPRA.  THE PRESENT SCHEME OF REGULATION IS NARROWER IN OPERATION AND
HAS A LESS RESTRICTIVE EFFECT UPON THE COMMERCE.  IT DOES NOT FORBID
THE TRAFFIC IN LIQUOR, NOR DOES IT IMPEDE IT MORE THAN IS REASONABLY
NECESSARY TO INFORM THE LOCAL AUTHORITIES WHO IS TO EFFECT THE
TRANSPORTATION THROUGH THE STATE, AND TO AFFORD OPPORTUNITY FOR THEM TO
POLICE IT. 

THE ARKANSAS SUPREME COURT IN THIS CASE HAS DECLARED THAT UNDER THE
STATUTE APPELLANT WAS ENTITLED TO A PERMIT ON APPLICATION, WHICH HE
DOES NOT APPEAR TO HAVE MADE; THAT THE PERMIT REQUIREMENT IS IN ITS
NATURE AN INSPECTION MEASURE FOR WHICH ONLY A NOMINAL FEE, NECESSARY TO
DEFRAY THE COST OF ISSUING IT AND OF POLICE INSPECTION AND OF NECESSARY
REPORTS, IS CHARGED.  FN1 IT ALSO SAID THAT ANY FAILURE BY THE STATE
COMMISSIONER TO ACT REASONABLY AND PROMPTLY IN ADMINISTERING THE LAW
WOULD BE CONTROLLED BY THE COURTS THROUGH MANDAMUS.  IN A LATER CASE,
HARDIN V. SPIERS, 152 S.W.2D 1010, ARISING UNDER REGULATIONS NOT IN
FORCE AT THE TIME OF APPELLANT'S CONVICTION, THE SAME COURT DECLARED
THAT THE COMMISSIONER MUST EXERCISE THIS POWER IN A REASONABLE, NOT AN
ARBITRARY, MANNER. 

WHILE THE COMMERCE CLAUSE HAS BEEN INTERPRETED AS RESERVING TO
CONGRESS THE POWER TO REGULATE INTERSTATE COMMERCE IN MATTERS OF
NATIONAL IMPORTANCE, THAT HAS NEVER BEEN DEEMED TO EXCLUDE THE STATES
FROM REGULATING MATTERS PRIMARILY OF LOCAL CONCERN WITH RESPECT TO
WHICH CONGRESS HAS NOT EXERCISED ITS POWER, EVEN THOUGH THE REGULATION
HAS SOME EFFECT ON INTERSTATE COMMERCE.  AS WE HAD OCCASION TO POINT
OUT AT THE LAST TERM OF COURT, THERE ARE MANY MATTERS WHICH ARE
APPROPRIATE SUBJECTS OF REGULATION IN THE INTEREST OF THE SAFETY,
HEALTH AND WELL-BEING OF LOCAL COMMUNITIES WHICH, BECAUSE OF THEIR
LOCAL CHARACTER AND THEIR NUMBER AND DIVERSITY, AND BECAUSE OF THE
PRACTICAL DIFFICULTIES INVOLVED, MAY NEVER BE ADEQUATELY DEALT WITH BY
CONGRESS.  BECAUSE OF THEIR LOCAL CHARACTER, ALSO, THERE IS WIDE SCOPE
FOR LOCAL REGULATION WITHOUT IMPAIRING THE UNIFORMITY OF CONTROL OVER
THE COMMERCE IN MATTERS OF NATIONAL CONCERN AND WITHOUT MATERIALLY
OBSTRUCTING THE FREE FLOW OF COMMERCE, WHICH WERE THE PRINCIPAL OBJECTS
SOUGHT TO BE SECURED BY THE COMMERCE CLAUSE.  SUCH REGULATIONS, IN THE
ABSENCE OF SUPERVENING CONGRESSIONAL ACTION, HAVE FOR THE MOST PART
BEEN SUSTAINED BY THIS COURT, NOTWITHSTANDING THE COMMERCE CLAUSE.  SEE
CALIFORNIA V. THOMPSON, 313 U.S. 109, 113, ET SEQ., AND CASES CITED. 
SEE ALSO CASES COLLECTED IN DISANTO V. PENNSYLVANIA, 273 U.S. 34, 39,
40, AND IN SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S.
177, 188, NOTE 5, AND 191. 

IN THE CASES REFERRED TO, THE COURT HAS SUSTAINED A VARIETY OF LOCAL
REGULATIONS DESIGNED TO SAFEGUARD THE STATES FROM INJURIOUS LOCAL
EFFECTS THAT MAY ATTEND INTERSTATE TRANSPORTATION.  FAMILIAR EXAMPLES
ARE INSPECTION AND QUARANTINE LAWS FOR THE PROTECTION OF LOCAL HEALTH
AND SAFETY, APPLICABLE TO PERSONS, ANIMALS, AND MERCHANDISE MOVING IN
INTERSTATE COMMERCE.  AGAIN, A STATE MAY INSURE THE SAFE AND CONVENIENT
USE OF ITS HARBORS AND NAVIGABLE WATERWAYS BY CONTROLLING THE MOVEMENT
OF VESSELS IN INTERSTATE AND FOREIGN COMMERCE; IN THE INTERESTS OF
SAFETY IT MAY CONTROL THE OPERATIONS OF INTERSTATE TRAINS AND OF THEIR
EMPLOYEES AND APPLIANCES. 

OF RECENT YEARS, THE COURT HAS SUSTAINED STATE REGULATIONS OF THE
SIZE AND WEIGHT OF MOTOR CARS MOVING INTERSTATE, DESIGNED TO INSURE THE
SAFE AND ECONOMICAL USE OF THE STATES' HIGHWAYS.  SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, AND CASES CITED.  A STATE MAY
POLICE "CARAVANS" OF MOTOR VEHICLES MOVING OVER ITS HIGHWAYS IN
INTERSTATE COMMERCE AND CHARGE A COMPENSATORY LICENSE FEE FOR DOING IT.
MORF V. BINGAMAN, 298 U.S. 407; CLARK V. PAUL GRAY, INC., 306 U.S.
583.  IT MAY, IN THE INTEREST OF PUBLIC SAFETY AND CONVENIENCE,
RESTRICT PARTICULAR TYPES OF MOTOR VEHICLES, MOVING IN INTERSTATE
COMMERCE, TO PARTICULAR AREAS.  SPROLES V. BINFORD, 286 U.S. 374, 393
5; CF. CLARK V. PAUL GRAY, INC., SUPRA, 598.  AND A STATE MAY UNDERTAKE
TO INSURE THE FITNESS AND INTEGRITY OF THOSE NEGOTIATING CONTRACTS FOR
INTERSTATE TRANSPORTATION, BY LICENSING THEM AND REQUIRING A BOND TO
INSURE THEIR GOOD BEHAVIOR.  CALIFORNIA V. THOMPSON, SUPRA. 

WHILE THE SUBJECT MATTER OF THE PRESENT REGULATION, TRANSPORTATION OF
LIQUOR, WITH ITS ATTENDANT DANGERS TO THE COMMUNITIES THROUGH WHICH IT
PASSES, DIFFERS IN MANY RESPECTS FROM THOSE WHICH WE HAVE MENTIONED,
ALL ARE ALIKE IN THEIR TENDENCY, IF UNREGULATED, TO AFFECT THE PUBLIC
INTEREST ADVERSELY IN VARYING WAYS DEPENDING ON LOCAL CONDITIONS.  THE
EFFORTS AT EFFECTIVE REGULATION, STATE AND NATIONAL, OF INTOXICATING
LIQUOR, EVIDENCED BY THE LONG COURSE OF LITIGATION IN THIS COURT, HAVE
NOT LEFT US UNAWARE OF THE PECULIAR DIFFICULTIES OF CONTROLLING IT OR
OF ITS TENDENCY TO GET OUT OF LEGAL BOUNDS.  THE PRESENT REQUIREMENT OF
A PERMIT IS NOT SHOWN TO BE MORE THAN A MEANS OF ESTABLISHING THE
IDENTITY OF THOSE WHO ARE TO ENGAGE IN THE TRANSPORTATION, THEIR ROUTE
AND POINT OF DESTINATION, AND AFFORDS OPPORTUNITY FOR LOCAL OFFICIALS
TO TAKE APPROPRIATE MEASURES TO INSURE THAT THE LIQUOR IS TRANSPORTED
WITHOUT DIVERSION, IN CONFORMITY TO THE PERMIT.  THE PERMIT DEVICE IS
NOT UNLIKE STATE REQUIREMENTS OF HEALTH CERTIFICATES FOR ANIMALS OR
CERTIFICATES OF INSPECTION FOR GOODS, WHICH HAVE BEEN SUSTAINED HERE
BOTH AS TO TRANSPORTATION INTO A STATE, SAVAGE V. JONES, 225 U.S. 501,
528; MINTZ V. BALDWIN, 289 U.S. 346; AND THROUGH IT, REID V. COLORADO,
187 U.S. 137; CF. MORF V. BINGAMAN, SUPRA.  WHERE THE POWER TO REGULATE
COMMERCE FOR LOCAL PROTECTION EXISTS, THE STATES MAY ADOPT EFFECTIVE
MEASURES TO ACCOMPLISH THE PERMITTED END.  THE ARKANSAS STATUTE DOES
NOT CONFLICT WITH ANY ACT OF CONGRESS.  IT DOES NOT FORBID OR PRECLUDE
THE TRANSPORTATION, OR INTERFERE WITH THE FREE FLOW OF COMMERCE AMONG
THE STATES BEYOND WHAT IS REASONABLY NECESSARY TO PROTECT THE LOCAL
PUBLIC INTEREST IN PREVENTING UNLAWFUL DISTRIBUTION OR USE OF LIQUOR
WITHIN THE STATE.  IT DOES NOT VIOLATE THE COMMERCE CLAUSE.  CF.
ZIFFRIN, INC. V. REEVES, 308 U.S. 132. 

WHAT WE HAVE SAID IS RESTRICTED TO THE STATUTE AS APPLIED UNDER THE
REGULATIONS IN FORCE AT THE TIME OF PETITIONER'S ALLEGED OFFENSE.  IT
WILL BE TIME ENOUGH TO DEAL WITH ABUSES OF THE PERMIT SYSTEM IF AND
WHEN THEY ARISE.  NOR HAVE WE OCCASION TO CONSIDER THE STATE'S
AUTHORITY TO REGULATE OTHER ARTICLES OF COMMERCE LESS SUSCEPTIBLE TO
USES INJURIOUS TO THE COMMUNITIES THROUGH WHICH THEY PASS.  CF. CLARK
DISTILLING CO. V. WESTERN MARYLAND RY. CO., 242 U.S. 311, 332; ZIFFRIN,
INC. V. REEVES, SUPRA, 138.  AFFIRMED. 

FN1  THE REGULATIONS PROMULGATED BY THE COMMISSIONER ON FEBRUARY 3,
1941, AFTER APPELLANT'S CONVICTION, PROVIDED FOR THE PAYMENT OF A
LICENSE FEE FOR THE PERMIT.  IT DOES NOT APPEAR THAT THERE WAS ANY
PRESCRIBED FEE AT THE TIME OF APPELLANT'S OFFENSE.  MOREOVER, HIS SOLE
CONTENTION IS THAT THE COMMERCE CLAUSE PRECLUDES THE STATE FROM
EXACTING ANY FORM OF PERMIT, EITHER WITH OR WITHOUT A FEE, FOR THE
INTERSTATE TRANSPORTATION OF LIQUOR THROUGH THE STATE.    MR. JUSTICE
JACKSON, CONCURRING IN RESULT: 

I AGREE THAT THIS COURT SHOULD NOT RELIEVE DUCKWORTH OF HIS
CONVICTION, BUT I WOULD REST THE DECISION ON THE CONSTITUTIONAL
PROVISION APPLICABLE ONLY TO THE TRANSPORTATION OF LIQUOR, AND REFRAIN
FROM WHAT I REGARD AS AN UNWISE EXTENSION OF STATE POWER OVER
INTERSTATE COMMERCE. 

                                  I 

APPELLANT WAS CONVICTED FOR TRANSPORTING A LOAD OF INTOXICATING
LIQUOR THROUGH ARKANSAS, WITHOUT PERMIT FROM THAT STATE, ON THE WAY
FROM ILLINOIS TO MISSISSIPPI.  THE OWNER OF THE LIQUOR TESTIFIED, AND
HIS TESTIMONY WAS TREATED AS A STIPULATION OF FACT, "THAT THE LIQUOR
WAS INTENDED TO BE SOLD IN THE STATE OF MISSISSIPPI IN VIOLATION OF THE
STATE LAWS OF MISSISSIPPI." 

THE TWENTY-FIRST AMENDMENT PROVIDES: 

"THE TRANSPORTATION OR IMPORTATION INTO ANY STATE, TERRITORY, OR
POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE THEREIN OF
INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY
PROHIBITED." 

DUCKWORTH NOW CONTENDS THAT IT IS OUR DUTY TO ASSURE HIM SAFE CONDUCT
AS AGAINST THE ACTION OF ARKANSAS, ALTHOUGH HIS GOAL IS TO VIOLATE BOTH
THE LAWS OF MISSISSIPPI AND THE FEDERAL CONSTITUTION.  HE ASKS US TO
HOLD THAT ONE PROVISION OF THE CONSTITUTION GUARANTEES HIM AN
OPPORTUNITY TO VIOLATE ANOTHER.  THE LAW IS NOT THAT TRICKY. 

WHETHER ONE TRANSPORTING LIQUOR ACROSS ARKANSAS TO A LEGAL
DESTINATION MIGHT NOT HAVE SOME CLAIM TO FEDERAL PROTECTION, WE DO NOT
NEED TO CONSIDER.  ONE WHO ASSAILS THE CONSTITUTIONALITY OF A STATUTE
MUST STAND ON HIS OWN RIGHT TO RELIEF.  FN1  SINCE THIS APPELLANT HAD
NO RIGHTFUL CLAIM TO CONSTITUTIONAL PROTECTION FOR HIS TRIP, THE WHOLE
PURPOSE OF WHICH WAS TO VIOLATE THE CONSTITUTION WHICH HE INVOKES, WE
SHOULD LEAVE HIM WHERE WE FIND HIM, AND FOR THIS REASON I CONCUR IN THE
JUDGMENT OF THIS COURT AFFIRMING THE CONVICTION. 

                 II 

IF WE YIELD TO AN URGE TO GO BEYOND THIS RATHER NARROW BUT ADEQUATE
GROUND OF DECISION, WE SHOULD THEN CONSIDER WHETHER THIS LIQUOR
CONTROVERSY CANNOT PROPERLY BE DETERMINED BY GUIDANCE FROM THE LIQUOR
CLAUSES OF THE CONSTITUTION.  THESE CLAUSES OF THE TWENTY-FIRST
AMENDMENT CREATE AN IMPORTANT DISTINCTION BETWEEN STATE POWER OVER THE
LIQUOR TRAFFIC AND STATE POWER OVER COMMERCE IN GENERAL.  THE PEOPLE OF
THE UNITED STATES KNEW THAT LIQUOR IS A LAWLESSNESS UNTO ITSELF.  THEY
DETERMINED THAT IT SHOULD BE GOVERNED BY A SPECIFIC AND PARTICULAR
CONSTITUTIONAL PROVISION.  THEY DID NOT LEAVE IT TO THE COURTS TO
DEVISE SPECIAL DISTORTIONS OF THE GENERAL RULES AS TO INTERSTATE
COMMERCE TO CURB LIQUOR'S "TENDENCY TO GET OUT OF LEGAL BOUNDS."  IT
WAS THEIR UNSATISFACTORY EXPERIENCE WITH THAT METHOD THAT RESULTED IN
GIVING LIQUOR AN EXCLUSIVE PLACE IN CONSTITUTIONAL LAW AS A COMMODITY
WHOSE TRANSPORTATION IS GOVERNED BY A SPECIAL, CONSTITUTIONAL
PROVISION. 

TRANSPORTATION ITSELF PRESENTED NO SPECIAL DANGERS OR HAZARDS, BUT IT
MIGHT BE A STEP IN EVADING AND UNDERMINING A POLICY AS TO USE AND SALE
OF LIQUOR WHICH THE STATE HAS A RIGHT TO PRESCRIBE FOR ITSELF. 
REGULATED TRANSPORTATION OF LIQUOR IS A NECESSARY INCIDENT OF REGULATED
CONSUMPTION AND DISTRIBUTION.  SO THE TWENTY-FIRST AMENDMENT MADE THE
LAWS AS TO DELIVERY AND USE IN THE STATE OF DESTINATION THE TEST OF
LEGALITY OF INTERSTATE MOVEMENT.  THIS OBVIOUSLY GIVES TO STATE LAW A
MUCH GREATER CONTROL OVER INTERSTATE LIQUOR TRAFFIC THAN OVER COMMERCE
IN ANY OTHER COMMODITY. 

IF THE TWENTY-FIRST AMENDMENT IS NOT TO BE RESORTED TO FOR THE
DECISION OF LIQUOR CASES, IT IS ON THE WAY TO BECOMING ANOTHER "ALMOST
FORGOTTEN" CLAUSE OF THE CONSTITUTION.  COMPARE EDWARDS V. CALIFORNIA,
ANTE, P. 183.  IT CERTAINLY APPLIES TO NOTHING ELSE.  WE SHOULD DECIDE
WHETHER THIS ARKANSAS STATUTE IS SUSTAINABLE UNDER THE TWENTY-FIRST
AMENDMENT.  DOES IT AUTHORIZE A STATE TO EXACT SOME ASSURANCE THAT ALL
LIQUOR ENTERING ITS TERRITORY EITHER IS IMPORTED FOR LAWFUL DELIVERY
UNDER ITS OWN LAWS OR WILL PASS THROUGH WITHOUT DIVERSION?  THE
AMENDMENT MIGHT BEAR A CONSTRUCTION THAT WOULD ALLOW A STATE TO
PROHIBIT LIQUOR FROM ENTERING ITS BORDERS AT ALL UNLESS BY RESPONSIBLE
CARRIER UNDER CONSIGNMENT TO SOME LAWFUL DESTINATION WITHIN OR BEYOND
THE STATE.  I SHOULD NOT AT ALL OBJECT TO CONSIDERING ALL OF THE
POTENTIAL EVILS WHICH THE COURT'S OPINION ASSOCIATES WITH THE LIQUOR
TRAFFIC, AND SOME MORE THAT I COULD SUPPLY, TO BE SUFFICIENT REASONS
FOR GIVING A LIBERAL INTERPRETATION TO THE TWENTY-FIRST AMENDMENT AS TO
STATE POWER OVER LIQUOR.  BUT THE COURT BRUSHES ASIDE THE LIQUOR
PROVISIONS OF THE TWENTY-FIRST AMENDMENT. 

                                 III 

THE OPINION OF THE COURT SOLVES THE PRESENT CASE THROUGH A
CONSTRUCTION OF THE INTERSTATE COMMERCE POWER.  IT REGARDS THIS LIQUOR
AS A LEGITIMATE SUBJECT OF A LAWFUL COMMERCE, AND THEN, BECAUSE OF ITS
SPECIAL CHARACTERISTICS, APPROVES THIS ADMITTEDLY NOVEL PERMIT SYSTEM
AND THUS EXPANDS THE POWER OF THE STATE TO REGULATE SUCH LAWFUL
COMMERCE BEYOND ANYTHING THIS COURT HAS YET APPROVED. 

THE EXTENT TO WHICH STATE LEGISLATION MAY BE ALLOWED TO AFFECT THE
CONDUCT OF INTERSTATE BUSINESS IN THE ABSENCE OF CONGRESSIONAL ACTION
ON THE SUBJECT HAS LONG BEEN A VEXATIOUS PROBLEM.  RECENTLY THE
TENDENCY HAS BEEN TO ABANDON THE EARLIER LIMITATIONS AND TO SUSTAIN
MORE FREELY SUCH STATE LAWS ON THE GROUND THAT CONGRESS HAS POWER TO
SUPERSEDE THEM WITH REGULATION OF ITS OWN.  IT IS A TEMPTING ESCAPE
FROM A DIFFICULT QUESTION TO PASS TO CONGRESS THE RESPONSIBILITY FOR
CONTINUED EXISTENCE OF LOCAL RESTRAINTS AND OBSTRUCTIONS TO NATIONAL
COMMERCE.  BUT THESE RESTRAINTS ARE INDIVIDUALLY TOO PETTY, TOO
DIVERSIFIED, AND TOO LOCAL TO GET THE ATTENTION OF A CONGRESS HARD
PRESSED WITH MORE URGENT MATTERS.  THE PRACTICAL RESULT IS THAT IN
DEFAULT OF ACTION BY US THEY WILL GO ON SUFFOCATING AND RETARDING AND
BALKANIZING AMERICAN COMMERCE, TRADE AND INDUSTRY. 

I DIFFER BASICALLY WITH MY BRETHREN AS TO WHETHER THE INERTIA OF
GOVERNMENT SHALL BE ON THE SIDE OF RESTRAINT OF COMMERCE OR ON THE SIDE
OF FREEDOM OF COMMERCE.  THE SLUGGISHNESS OF GOVERNMENT, THE MULTITUDE
OF MATTERS THAT CLAMOR FOR ATTENTION, AND THE RELATIVE EASE WITH WHICH
MEN ARE PERSUADED TO POSTPONE TROUBLESOME DECISIONS, ALL MAKE INERTIA
ONE OF THE MOST DECISIVE POWERS IN DETERMINING THE COURSE OF OUR
AFFAIRS AND FREQUENTLY GIVES TO THE ESTABLISHED ORDER OF THINGS A
LONGEVITY AND VITALITY MUCH BEYOND ITS MERITS.  BECAUSE THAT IS SO, I
AM RELUCTANT TO SEE ANY NEW LOCAL SYSTEMS FOR RESTRAINING OUR NATIONAL
COMMERCE GET THE PRESTIGE AND POWER OF ESTABLISHED INSTITUTIONS.  THE
COURT'S PRESENT OPINION AND TENDENCY WOULD ALLOW THE STATES TO
ESTABLISH THE RESTRAINTS AND LET COMMERCE STRUGGLE FOR CONGRESSIONAL
ACTION TO MAKE IT FREE.  THIS TREND I AM UNWILLING TO FURTHER IN ANY
EVENT BEYOND THE PLAIN REQUIREMENTS OF EXISTING CASES. 

IF THE REACTION OF THIS COURT AGAINST WHAT MANY OF US HAVE REGARDED
AS AN EXCESSIVE JUDICIAL INTERFERENCE WITH LEGISLATIVE ACTION IS TO
YIELD WHOLESOME RESULTS, WE MUST BE CAUTIOUS LEST WE MERELY RUSH TO
OTHER EXTREMES.  THE EXCESSIVE USE FOR INSUFFICIENT REASON OF A
JUDICIALLY INFLATED DUE PROCESS CLAUSE TO STRIKE DOWN STATES' LAWS
REGULATING THEIR OWN INTERNAL AFFAIRS, SUCH AS HOURS OF LABOR IN
INDUSTRY, MINIMUM WAGE REQUIREMENTS, AND STANDARDS FOR WORKING
CONDITIONS, IS ONE THING.  TO INVOKE THE INTERSTATE COMMERCE CLAUSE TO
KEEP THE MANY STATES FROM FASTENING THEIR SEVERAL CONCEPTS OF LOCAL
"WELL-BEING" ONTO THE NATIONAL COMMERCE IS A WHOLLY DIFFERENT THING. 

OUR NATIONAL FREE INTERCOURSE IS NEVER IN DANGER OF BEING SUDDENLY
STIFLED BY DRAMATIC AND SWEEPING ACTS OF RESTRAINT.  THAT WOULD PRODUCE
ITS OWN ANTIDOTE.  OUR DANGER, AS THE FOREFATHERS WELL KNEW, IS FROM
THE AGGREGATE STRANGLING EFFECT OF A MULTIPLICITY OF INDIVIDUALLY PETTY
AND DIVERSE AND LOCAL REGULATIONS.  EACH MAY SERVE SOME LOCAL PURPOSE
WORTHY ENOUGH BY ITSELF.  CONGRESS MAY VERY PROPERLY TAKE INTO
CONSIDERATION LOCAL POLICIES AND DANGERS WHEN IT EXERCISES ITS POWER
UNDER THE COMMERCE CLAUSE.  BUT TO LET EACH LOCALITY CONJURE UP ITS OWN
DANGERS AND BE THE JUDGE OF THE REMEDIAL RESTRAINTS TO BE CLAMPED ONTO
INTERSTATE TRADE INEVITABLY RETARDS OUR NATIONAL ECONOMY AND
DISINTEGRATES OUR NATIONAL SOCIETY.  IT IS THE MOVEMENT AND EXCHANGE OF
GOODS THAT SUSTAIN LIVING STANDARDS, BOTH OF HIM WHO PRODUCES AND OF
HIM WHO CONSUMES.  THIS VITAL NATIONAL INTEREST IN FREE COMMERCE AMONG
THE STATES MUST NOT BE JEOPARDIZED. 

I DO NOT SUPPOSE THE SKIES WILL FALL IF THE COURT DOES ALLOW ARKANSAS
TO RIG UP THIS HANDY DEVICE FOR POLICING LIQUOR ON THE GROUND THAT IT
IS NOT FORBIDDEN BY THE COMMERCE CLAUSE, BUT IN DOING SO IT ADDS
ANOTHER TO THE ALREADY TOO NUMEROUS AND BURDENSOME STATE RESTRAINTS OF
NATIONAL COMMERCE AND PURSUES A TREND WITH WHICH I WOULD HAVE NO PART. 

FN1  MR. JUSTICE HOLMES, SPEAKING FOR A UNANIMOUS COURT, LAID DOWN
THE RULE AS TO TAX CASES, EQUALLY APPLICABLE TO THIS, IF, INDEED, THIS
IS NOT ITSELF SOMETHING OF A TAX CASE.  HE POINTED OUT THAT THE COURT
DOES NOT CONSIDER ARGUMENTS ON CONSTITUTIONAL GROUNDS "UNLESS THE PARTY
SETTING UP THE UNCONSTITUTIONALITY OF THE STATE LAW BELONGS TO THE
CLASS FOR WHOSE SAKE THE CONSTITUTIONAL PROTECTION IS GIVEN, OR THE
CLASS PRIMARILY PROTECTED  ...  "  HATCH V. REARDON, 204 U.S. 152,
160. 

MR. JUSTICE CARDOZO HAS STATED FOR THE COURT THAT THOSE WHO ATTACK
THE CONSTITUTIONALITY OF STATE STATUTES "ARE NOT THE CHAMPIONS OF ANY
RIGHTS EXCEPT THEIR OWN."  HENNEFORD V. SILAS MASON CO., 300 U.S. 577,
583. 

MR. JUSTICE BRANDEIS HAS GIVEN EXPRESSION TO THE SAME VIEW FOR THE
COURT IN THESE TERMS: 

"WE HAVE NO OCCASION TO CONSIDER THE CONSTITUTIONAL QUESTION, BECAUSE
IT APPEARS THAT THE PLAINTIFF IS WITHOUT STANDING TO PRESENT IT.  ONE
WHO WOULD STRIKE DOWN A STATE STATUTE AS OBNOXIOUS TO THE FEDERAL
CONSTITUTION MUST SHOW THAT THE ALLEGED UNCONSTITUTIONAL FEATURE
INJURES HIM."  PREMIER-PABST CO. V. GROSSCUP, 298 U.S. 226, 227. 
..END :

















GRAY V. POWELL, 314 U.S. 402 


NO. 18.  ARGUED OCTOBER 21, 22, 1941.  - DECIDED DECEMBER 15, 1941.  -
114 F.2D 752, REVERSED. 


1.  UPON THE FACTS OF THIS CASE, A DETERMINATION BY THE DIRECTOR OF
THE BITUMINOUS COAL DIVISION THAT A RAILROAD COMPANY WAS NOT THE
"PRODUCER" OF CERTAIN COAL CONSUMED BY IT, AND THEREFORE THAT THE COAL
WAS NOT EXEMPT, UNDER SECS. 4-II (1), AND 4-A, FROM THE PROVISIONS OF
THE BITUMINOUS COAL ACT OF 1937, SHOULD NOT BE DISTURBED ON REVIEW
UNDER SEC. 6(B).  P. 411. 

2.  ON REVIEW UNDER SEC. 6(B) OF THE BITUMINOUS COAL ACT OF 1937, OF
AN ADMINISTRATIVE DETERMINATION THAT THE CONSUMER OF CERTAIN COAL WAS
NOT THE "PRODUCER" THEREOF AND THAT THEREFORE THE COAL WAS NOT EXEMPT
UNDER SECS. 4-II (1) AND 4-A OF THE ACT, THE FUNCTION OF THE COURT IS
FULLY PERFORMED WHEN IT DETERMINES THAT THERE HAS BEEN A FAIR HEARING,
WITH NOTICE AND AN OPPORTUNTIY TO PRESENT THE CIRCUMSTANCES AND
ARGUMENTS TO THE ADMINISTRATIVE BODY, AND AN APPLICATION OF THE STATUTE
IN A JUST AND REASONED MANNER.  P. 411. 

3.  IN ORDER THAT THE BITUMINOUS COAL ACT OF 1937, SEC. 4-II, MAY
APPLY TO PARTICULAR TRANSACTIONS IN COAL, IT IS NOT ESSENTIAL THAT
THERE BE A SALE OR OTHER TRANSFER OF TITLE BY THE PRODUCER.  P. 414. 

4.  IT IS WITHIN THE POWER OF CONGRESS TO PROVIDE FOR THE
DETERMINATION OF WHO ARE "PRODUCERS" UNDER THE BITUMINOUS COAL ACT OF
1937.  P. 417. 

GRAY, DIRECTOR OF THE BITUMINOUS COAL DIVISION OF THE DEPARTMENT OF
THE INTERIOR, ET AL. V. POWELL ET AL., RECEIVERS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 311 U.S. 644, TO REVIEW A DECREE REVERSING AN ORDER OF
THE DIRECTOR OF THE BITUMINOUS COAL DIVISION DENYING A CLAIM OF
EXEMPTION UNDER THE BITUMINOUS COAL ACT OF 1937.  THE DECREE BELOW WAS
AFFIRMED HERE BY AN EQUALLY DIVIDED COURT, 312 U.S. 666; SUBSEQUENTLY,
A PETITION FOR REHEARING WAS GRANTED, 313 U.S. 596. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, RECEIVERS OF THE SEABOARD AIR LINE RAILWAY COMPANY, SEEK
FROM THE BITUMINOUS COAL DIVISION OF THE DEPARTMENT OF THE INTERIOR AN
EXEMPTION OF CERTAIN COAL FROM THE BITUMINOUS COAL CODE ON THE GROUND
THAT THEY WERE BOTH THE PRODUCER AND CONSUMER OF THE COAL.  IF SEABOARD
IS HELD TO BE A PRODUCER-CONSUMER, IT IS ENTITLED TO AN EXEMPTION BY
VIRTUE OF SEC. 4-II (1) AND SEC. 4-A.  THESE SECTIONS, TOGETHER WITH
OTHERS PERTINENT TO THE DISCUSSION, ARE SET OUT IN A NOTE BELOW.  FN1 

THE APPLICATION FOR EXEMPTION WAS FILED BEFORE THE NATIONAL
BITUMINOUS COAL COMMISSION AUGUST 4, 1937.  THE FIRST HEARING WAS IN
SEPTEMBER, 1937, BEFORE THE EXAMINERS FOR THE COMMISSION.  AFTER THE
PASSAGE OF THE REORGANIZATION ACT OF 1939, 53 STAT. 561, AND THE
ACQUIESCENCE OF CONGRESS IN REORGANIZATION PLAN NO. II, 53 STAT. 1433,
A DIVISION HEADED BY A DIRECTOR WAS ESTABLISHED BY THE SECRETARY OF THE
INTERIOR, KNOWN AS THE BITUMINOUS COAL DIVISION.  ORDER NO. 1394, AS
AMENDED BY ORDER NO. 1399 OF JULY 5, 1939, 4 F.R. 2947.  THEREAFTER,
THE HEARINGS PROCEEDED BEFORE THE DIVISION, AND THE ORDER DENYING THE
EXEMPTION WAS PASSED BY THE DIRECTOR, JUNE 14, 1940.  BETTER PRACTICE
MIGHT HAVE SUGGESTED A DISMISSAL, SINCE THE DIRECTOR FOUND SEABOARD WAS
NOT A PRODUCER.  SUBSEQUENTLY, SEABOARD SOUGHT REVIEW UNDER SEC. 6(B)
AND OBTAINED THE DECREE, NOW UNDER CONSIDERATION, REVERSING THE
DIRECTOR'S ORDER.  THE OPINION ACCOMPANYING THE DECREE HELD THAT THE
FACTS OF THIS CASE BROUGHT THE SEABOARD UNDER THE CLASSIFICATION OF
PRODUCER.  114 F.2D 752.  AS THE QUESTION OF FEDERAL LAW WAS IMPORTANT
FN2  AND UNSETTLED BY ANY DECISION OF THIS COURT, CERTIORARI WAS
GRANTED, J.C. SEC. 240(A), 311 U.S. 644, AND THE DECREE BELOW AFFIRMED
BY AN EQUALLY DIVIDED COURT, 312 U.S. 666.  THE PRESENT CONSIDERATION
IS UPON A PETITION FOR REHEARING.  313 U.S. 596. 

SEABOARD, A COAL-BURNING RAILROAD, IS A LARGE CONSUMER OF BITUMINOUS
COAL.  THE ARRANGEMENTS HERE IN QUESTION ARE WITH THREE MINES; BUT AS
THERE ARE NO SIGNIFICANT DIFFERENCES IN THE PLANS BY WHICH THE COAL IS
EXTRACTED, WE SHALL DESCRIBE THE CONTRACTS RELATING TO ONE ONLY, THE
WILLIAM-ANN MINE, OWNED BY THE UNITED THACKER COAL COMPANY AND THE COLE
AND CRANE REAL ESTATE TRUST. 

THIS WAS THE EARLIEST ARRANGEMENT.  IT ORIGINATED IN MAY, 1934, WHEN
THE COAL CODE OF THE NATIONAL INDUSTRIAL RECOVERY ACT WAS IN EFFECT. 
FN3  THE FIRST STEP WAS A LEASE OF COAL LANDS BY THE SEABOARD FROM THE
LANDOWNERS WHICH GRANTED TO SEABOARD THE RIGHT TO MINE COAL FOR
FOURTEEN MONTHS, WITH THE PRIVILEGE OF YEARLY RENEWALS, WHICH
ORIGINALLY WERE NOT TO RUN BEYOND JUNE 30, 1939.  SUCCESSIVE EXTENSIONS
HAVE CONTINUED ITS EFFECT SINCE THAT TIME.  DURING THE SPRING OF 1936,
TWO EXTENSIONS OF SIX WEEKS EACH WERE AGREED UPON, SPECIFICALLY IN VIEW
OF THE CASE OF CARTER V. CARTER COAL CO., 298 U.S. 238, DECIDED MAY 18,
1936.  THE CARTER CASE INVOLVED THE BITUMINOUS COAL ACT OF 1935, THE
PREDECESSOR OF THE PRESENT ACT.  A PER-TON ROYALTY, AS RENT, WAS
RESERVED TO THE LANDOWNERS WITH AN ANNUAL MINIMUM OF $16,200 PAYABLE
QUARTERLY.  THE LEASE WAS TERMINABLE ON FIFTEEN DAYS NOTICE, IF THE
LANDOWNERS TERMINATED THE CONTRACTOR'S LEASE, ABOUT TO BE REFERRED TO,
FOR THE CONTRACTOR'S DEFAULT. 

THE SECOND STEP IN THIS ARRANGEMENT WAS FOR THE LANDOWNER LESSORS OF
THE LEASE JUST DESCRIBED TO LEASE SIMULTANEOUSLY TO A CONTRACTOR
SELECTED BY SEABOARD THE MINING EQUIPMENT ON THE DEMISED PREMISES,
CONSISTING OF BUILDINGS, TIPPLES, MACHINERY AND OTHER APPURTENANCES
NECESSARY OR CONVENIENT FOR EXTRACTING THE COAL.  THIS EQUIPMENT WAS
SUFFICIENT FOR REASONABLY ECONOMICAL MINING.  IT WAS FURTHER PROVIDED
IN THE COAL LEASE THAT THE TERM AND THE RENEWAL PRIVILEGES OF THE
EQUIPMENT LEASE SHOULD BE COEXTENSIVE WITH THOSE OF THE COAL LEASE. 

THE FINAL STEP WAS AN OPERATING CONTRACT BETWEEN THE CONTRACTOR,
DANIEL H. PRITCHARD, REFERRED TO IN THE LAND LEASE AS THE LESSEE OF THE
FACILITIES FOR MINING, AND SEABOARD FOR THE EXTRACTION OF THE COAL BY
THE CONTRACTOR OR SUPPLIER AND THE DELIVERY OF IT TO SEABOARD FOR
CONSUMPTION.  THIS CONTRACT ALSO WAS MADE SIMULTANEOUSLY WITH THE COAL
LEASE.  IT CONTAINED A PROVISION REQUIRING THE CONTRACTOR TO OBTAIN A
LEASE OF THE MINING EQUIPMENT, IN ACCORDANCE WITH THAT SEGMENT OF THE
ENTIRE PLAN REFERRED TO IN THE PRECEDING PARAGRAPH.  FOR A FLAT PER-TON
COST ON A SLIDING SCALE DEPENDENT UPON VOLUME, THE SUPPLIER AGREED TO
MINE THE COAL.  HIS COMPENSATION WAS SUBJECT TO VARIATION BY
FLUCTUATIONS IN COSTS BEYOND HIS CONTROL, SUCH AS TAXES, WAGES,
MACHINERY AND EXPLOSIVES.  ALTERNATIVELY, PAYMENT COULD BE MADE ON A
COST BASIS PLUS TEN CENTS PER TON FOR THE CONTRACTOR'S COMPENSATION. 
THIS OPERATING CONTRACT RAN FOR THE SAME TERM AND HAD THE SAME RENEWAL
PRIVILEGES AS THE COAL LEASE CONTRACT HERETOFORE DESCRIBED AND HAS BEEN
CONTINUED IN EFFECT BY EXTENSIONS MADE FOR THE SAME TERMS AS THE
EXTENSIONS OF THE COAL LEASE.  THE SUPPLIER WAS CALLED AN INDEPENDENT
CONTRACTOR IN THE DOCUMENT.  THIS HE WAS, AT LEAST IN THE SENSE THAT HE
MANAGED THE MINING IN HIS OWN WAY WITHOUT A RIGHT OF DIRECTION IN
SEABOARD.  HE AGREED THAT THE COAL SUPPLIED WOULD BE CLEAN, I.E., FREE
OF NON-COMBUSTIBLE MATTER, AND WOULD PASS INSPECTION OF SEABOARD FOR
COMPLIANCE WITH ITS SPECIFICATIONS.  THE SUPPLIER PAID AND ASSUMED ALL
OBLIGATIONS TO THE LANDOWNER EXCEPT THE ROYALTY, INCLUDING TAXES.  HE
CARRIED EMPLOYER'S LIABILITY AND CASUALTY INSURANCE, AND AGREED TO BEAR
THE COST OF ALL REPAIRS, ADDITIONS OR BETTERMENTS, EVEN UNDER THE
ALTERNATE COST-PLUS PLAN, AS WELL AS THOSE DESCRIBED AS COMMISSARY OR
WELFARE EXPENSES.  SEABOARD, IN AN EXTENSION AGREEMENT, OBTAINED THE
PRIVILEGE OF TERMINATION ON SIXTY DAYS' NOTICE, IF THE SUPPLIER
DEFAULTED BY NOT LOWERING HIS CONTRACT PRICE TO MEET THE MARKET PRICE
OF SIMILAR COAL. 

THE LANDOWNER, THE CONTRACTOR AND SEABOARD, BY THIS SERIES OF
COORDINATED AND SYNCHRONIZED CONTRACTS, CAUSED THE ENTIRE OUTPUT OF THE
MINE TO BE DELIVERED TO SEABOARD FOR ITS CONSUMPTION, AT A FIXED PRICE,
SUBJECT TO VARIATIONS FOR FACTORS BEYOND THE SUPPLIER CONTRACTOR'S
CONTROL.  THE ALTERNATIVE COST-PLUS PLAN WAS NOT EMPLOYED.  UNDER THE
CONTRACTOR'S AGREEMENT, THE CONTRACTOR ASSUMED ALL RISKS OF OPERATION,
AS HERETOFORE EXPLAINED, AND ALL OBLIGATIONS OF SEABOARD TO THE
LANDOWNER, EXCEPT THE ROYALTY PAYMENTS.  THIS MADE A FIXED COST TO
SEABOARD, FOR COAL, OF SUPPLIER'S CONTRACT PRICE PLUS THE ROYALTY PER
TON AS RENT.  IT WAS A SHORT TERM, ONE YEAR, CONTRACT WITH THE PRICE
CONTROLLED BY THE MARKET IN VIEW OF THE COMPETITIVE PRICE PROVISION. 
SEABOARD FURNISHED NO FACILITIES OR EQUIPMENT FOR MINING OR LOADING. 

THE OTHER TWO ARRANGEMENTS, ONE WITH THE GLAMORGAN COAL LANDS
CORPORATION, LANDOWNER, AND GLAMORGAN COALS, INC., THE OPERATOR, FOR
WHICH LATTER CORPORATION PEERLESS COAL CORPORATION IS SUBSTITUTED BY
CONSENT, AND THE OTHER WITH CHILTON BLOCK COAL COMPANY AND THE DINGESS
RUM COAL COMPANY, LANDOWNERS BY LEASE AND IN FEE, AND DANIEL H.
PRITCHARD, OPERATOR, VARY ONLY IN DETAILS FROM THE WILLIAM-ANN
CONTRACTS SET OUT ABOVE. 

FROM THE SEVERAL ARRANGEMENTS THE SEABOARD OBTAINED ABOUT HALF OF ITS
ANNUAL REQUIREMENTS, ESTIMATED FOR 1936 AT ONE MILLION TONS.  THERE IS
NO QUESTION AS TO THE INTERSTATE CHARACTER OF THE COMMERCE INVOLVED. 
THE COAL IS MINED IN VIRGINIA AND WEST VIRGINIA, AND CONSUMED IN A
NUMBER OF OTHER SOUTH ATLANTIC STATES. 

THE BITUMINOUS COAL ACT OF 1937 FOLLOWED THE INVALIDATION OF THE
BITUMINOUS COAL CONSERVATION ACT OF 1935 BY CARTER V. CARTER COAL CO.,
298 U.S. 238, AND THE ABANDONMENT OF THE N.R.A. CODE OF FAIR
COMPETITION AFTER THE DECISION IN SCHECHTER CORP. V. UNITED STATES, 295
U.S. 495.  THESE LEGISLATIVE ENACTMENTS SOUGHT A SOLUTION OF THE
ECONOMIC DIFFICULTIES OF THE SOFT COAL INDUSTRY, WHICH WERE BRINGING
BANKRUPTCY TO OPERATORS AND AN EVEN WORSE CONDITION, UNEMPLOYMENT, TO
THE MINERS.  EACH TIME LEGISLATION WAS ATTEMPTED, THE CONCLUSION WAS
REACHED THAT PRICE STABILIZATION OFFERED THE BEST REMEDY.  THE INDUSTRY
FOUND THE SAME ANSWER.  APPALACHIAN COALS, INC. V. UNITED STATES, 288
U.S. 344.  THIS COURT HAS DETERMINED THAT THE PRESENT 1937 ACT IS
WITHIN THE CONSTITUTIONAL POWERS OF CONGRESS.  SUNSHINE COAL CO. V.
ADKINS, 310 U.S. 381. 

THIS PURPOSE OF STABILIZATION OF CONDITIONS THROUGH A FIXED PRICE
SCHEME MET A DIFFICULT PROBLEM IN THE CAPTIVE COAL MINES.  THE 1935 ACT
TAXED THE VALUE OF SUCH COAL AT THE MINE.  IT DEFINED CAPTIVE COAL AS
INCLUDING "ALL COAL PRODUCED AT A MINE FOR CONSUMPTION BY THE PRODUCER
OR BY A SUBSIDIARY OR AFFILIATE THEREOF."  49 STAT. 1008.  AS THE COAL
CONSUMED BY A PRODUCER APPARENTLY WAS DEEMED BY CONGRESS, WHEN
CONSIDERING THE PRESENT ACT, NOT TO OFFER THE SAME DISTURBING EFFECT TO
PRICES AS NON-CODE, OPEN MARKET COAL,  FN4  A METHOD OF EXEMPTION WAS
PROVIDED.  SECS. 4-II (L) AND 4-A, NOTE 1, SUPRA.  CONGRESS, HOWEVER,
DID NOT DEFINE EXEMPT COAL AS IT HAD CAPTIVE COAL IN THE 1935 ACT. 
WHILE A DEFINITION WAS INSERTED IN THE SENATE,  FN5  IT WAS ELIMINATED
IN THE CONFERENCE REPORT.  FN6  AS A RESULT, THE DETERMINATION OF
EXEMPT COAL WAS LEFT TO THE ADMINISTRATIVE BODY.  SEC. 4-A, NOTE 1,
SUPRA. 

DETERMINATION OF PRODUCER.  - WE ARE THUS BROUGHT SQUARELY TO DECIDE
WHETHER THE DIRECTOR'S FINDING THAT SEABOARD IS NOT THE PRODUCER OF
THIS COAL IS TO BE SUSTAINED.  BY SEC. 4-A, NOTE 1, SUPRA, THE
DETERMINATION OF THIS ISSUE RESTS WITH THE DIRECTOR, SUBJECT TO THE
REVIEW, AS OBTAINED HEREIN, BY A CIRCUIT COURT OF APPEALS, PROVIDED BY
SEC. 6(B).  SECTION 4-A STATES:  "ANY PRODUCER BELIEVING THAT ANY
COMMERCE IN COAL IS NOT SUBJECT TO THE PROVISIONS OF SECTION 4  ...
MAY FILE WITH THE COMMISSION AN APPLICATION, VERIFIED BY OATH OR
AFFIRMATION FOR EXEMPTION, SETTING FORTH THE FACTS UPON WHICH SUCH
CLAIM IS BASED.  ...  WITHIN A REASONABLE TIME AFTER THE RECEIPT OF ANY
APPLICATION FOR EXEMPTION THE COMMISSION SHALL ENTER AN ORDER GRANTING,
OR, AFTER NOTICE AND OPPORTUNITY FOR HEARING, DENYING OR OTHERWISE
DISPOSING OF SUCH APPLICATION."  IN A MATTER LEFT SPECIFICALLY BY
CONGRESS TO THE DETERMINATION OF AN ADMINISTRATIVE BODY, AS THE
QUESTION OF EXEMPTION WAS HERE BY SECS. 4-II (L) AND 4-A, THE FUNCTION
OF REVIEW PLACED UPON THE COURTS BY SEC. 6(B) IS FULLY PERFORMED WHEN
THEY DETERMINE THAT THERE HAS BEEN A FAIR HEARING, WITH NOTICE AND AN
OPPORTUNITY TO PRESENT THE CIRCUMSTANCES AND ARGUMENTS TO THE DECISIVE
BODY, AND AN APPLICATION OF THE STATUTE IN A JUST AND REASONED MANNER. 
SHIELDS V. UTAH IDAHO R. CO., 305 U.S. 177, 180, 181, 184, 185, 187. 

SUCH A DETERMINATION AS IS HERE INVOLVED BELONGS TO THE USUAL
ADMINISTRATIVE ROUTINE.  CONGRESS, WHICH COULD HAVE LEGISLATED
SPECIFICALLY AS TO THE INDIVIDUAL EXEMPTIONS FROM THE CODE, FOUND IT
MORE EFFICIENT TO DELEGATE THAT FUNCTION TO THOSE WHOSE EXPERIENCE IN A
PARTICULAR FIELD GAVE PROMISE OF A BETTER INFORMED, MORE EQUITABLE,
ADJUSTMENT OF THE CONFLICTING INTERESTS OF PRICE STABILIZATION UPON THE
ONE HAND AND PRODUCER CONSUMPTION UPON THE OTHER.  BY THUS COMMITTING
THE EXECUTION OF ITS POLICIES TO THE SPECIALIZED PERSONNEL OF THE
BITUMINOUS COAL DIVISION, THE CONGRESS FOLLOWED A FAMILIAR PRACTICE. 
FN7  OF COURSE, THERE IS NO DIFFERENCE BETWEEN THE SKILL OF EMPLOYEES
IN A DIVISION OF A DEPARTMENT AND THOSE IN A BOARD, COMMISSION OR
ADMINISTRATION. 

WHERE, AS HERE, A DETERMINATION HAS BEEN LEFT TO AN ADMINISTRATIVE
BODY, THIS DELEGATION WILL BE RESPECTED AND THE ADMINISTRATIVE
CONCLUSION LEFT UNTOUCHED.  CERTAINLY, A FINDING ON CONGRESSIONAL
REFERENCE THAT AN ADMITTEDLY CONSTITUTIONAL ACT IS APPLICABLE TO A
PARTICULAR SITUATION DOES NOT REQUIRE SUCH FURTHER SCRUTINY.  ALTHOUGH
WE HAVE HERE NO DISPUTE AS TO THE EVIDENTIARY FACTS, THAT DOES NOT
PERMIT A COURT TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE DIRECTOR. 
UNITED STATES V. LOUISVILLE & NASHVILLE R. CO., 235 U.S. 314, 320;
SWAYNE & HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 304; HELVERING V.
CLIFFORD, 309 U.S. 331, 336.  IT IS NOT THE PROVINCE OF A COURT TO
ABSORB THE ADMINISTRATIVE FUNCTIONS TO SUCH AN EXTENT THAT THE
EXECUTIVE OR LEGISLATIVE AGENCIES BECOME MERE FACT-FINDING BODIES
DEPRIVED OF THE ADVANTAGES OF PROMPT AND DEFINITE ACTION. 

CONGRESS COULD NOT "DEFINE THE WHOLE GAMUT OF REMEDIES TO EFFECTUATE
THESE POLICIES IN AN INFINITE VARIETY OF SPECIFIC SITUATIONS."  PHELPS
DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194.  JUST AS IN THE ADKINS
CASE (310 U.S. 381) THE DETERMINATION OF THE SWEEP OF THE TERM
"BITUMINOUS COAL" WAS FOR THIS SAME ADMINISTRATIVE AGENCY, SO HERE
THERE MUST BE LEFT TO IT, SUBJECT TO THE BASIC PREREQUISITES OF LAWFUL
ADJUDICATION, THE DETERMINATION OF "PRODUCER."  THE SEPARATION OF
PRODUCTION AND CONSUMPTION IS COMPLETE WHEN A BUYER OBTAINS SUPPLIES
FROM A SELLER TOTALLY FREE FROM BUYER CONNECTION.  THEIR IDENTITY IS
UNDOUBTED WHEN THE CONSUMER EXTRACTS COAL FROM ITS OWN LAND WITH ITS
OWN EMPLOYEES.  BETWEEN THE TWO EXTREMES ARE THE INNUMERABLE VARIATIONS
THAT BRING THE ARRANGEMENTS CLOSER TO ONE POLE OR THE OTHER OF THE
RANGE BETWEEN EXEMPTION AND INCLUSION.  TO DETERMINE UPON WHICH SIDE OF
THE MEDIAN LINE THE PARTICULAR INSTANCE FALLS CALLS FOR THE EXPERT,
EXPERIENCED JUDGMENT OF THOSE FAMILIAR WITH THE INDUSTRY.  UNLESS WE
CAN SAY THAT A SET OF CIRCUMSTANCES DEEMED BY THE COMMISSION TO BRING
THEM WITHIN THE CONCEPT "PRODUCER" IS SO UNRELATED TO THE TASKS
ENTRUSTED BY CONGRESS TO THE COMMISSION AS IN EFFECT TO DENY A SENSIBLE
EXERCISE OF JUDGMENT, IT IS THE COURT'S DUTY TO LEAVE THE COMMISSION'S
JUDGMENT UNDISTURBED. 

CONSUMERS OF BITUMINOUS COAL ARE NATURALLY DESIROUS OF OBTAINING
SUPPLIES FREE OF THE TAX AND FREE OF THE RISK AND INVESTMENT TYPICAL OF
PRODUCTION.  IF INDEPENDENT CONTRACTORS ARE EMPLOYED FOR EXTRACTION,
THERE IS AN OBVIOUS BREACH IN THE FULL CONSUMER-PRODUCER IDENTITY. 
THIS MAY CREATE CONSEQUENCES WHICH WOULD NOT FOLLOW IF THE ENTERPRISE
ITSELF, THROUGH ITS OWN EMPLOYEES, ACCOMPLISHED THE SAME ULTIMATE
RESULT.  OFTEN IN THE LAW, THE SELECTION OF A PARTICULAR BUSINESS FORM
AS, FOR INSTANCE, CARRYING ON A COMMON BUSINESS THROUGH TWO
CORPORATIONS, MAY CREATE LEGAL LIABILITY, EDWARDS V. CHILE COPPER CO.,
270 U.S. 452, 456, ALTHOUGH SUCH RELATION TO OTHER CONNECTIONS MAY
RESULT IN DIVERSITY OF LEGAL TREATMENT.  COMPARE, FOR INSTANCE, UNITED
STATES V. DELAWARE & HUDSON CO., 213 U.S. 366, AND UNITED STATES V.
DELAWARE, L. & W.R. CO., 238 U.S. 516. 

THE SHORTNESS OF THE LEASES, THE FREEDOM FROM INVESTMENT IN COAL
LANDS OR MINING FACILITIES, THE IMPROBABILITY OF PROFIT OR LOSS FROM
THE MINING OPERATIONS, THE RIGHT TO CANCEL WHEN CHEAPER COAL MAY BE
OBTAINED IN THE OPEN MARKET, ALL DENY THE POSITION OF PRODUCER TO THE
RAILROAD. 

WE VIEW IT AS IMMATERIAL THAT THE COMPANY MIGHT HAVE ITSELF OPERATED
A CAPTIVE MINE AND SO ESCAPED THE PRICE PROVISIONS OF THE ACT BY VIRTUE
OF THE EXCEPTION OF SEC. 4-II (L), NOTE 1, SUPRA.  IT CHOSE TO EMPLOY
THE SCHEME IN QUESTION HERE.  IT CONSIDERED IT ADVANTAGEOUS TO AVOID
THE RISKS OF PRODUCTION AND NOW MUST BEAR THE BURDENS OF A
DETERMINATION THAT OTHER ENTITIES THAN ITSELF ARE THE PRODUCERS.  CF.
SUPERIOR COAL CO. V. DEPARTMENT OF FINANCE, 377 ILL. 282, 36 N.E.2D
354, 358, 360.  THE CHOICE OF DISREGARDING A DELIBERATELY CHOSEN
ARRANGEMENT FOR CONDUCTING BUSINESS AFFAIRS DOES NOT LIE WITH THE
CREATOR OF THE PLAN.  HIGGINS V. SMITH, 308 U.S. 473, 477. 

CODE COVERAGE.  - SEABOARD CONTENDS THAT THE COAL HERE INVOLVED IS
NOT AFFECTED BY THE CODE SEC. 4-II BECAUSE THERE IS NO SALE OR OTHER
TRANSFER OF THE TITLE TO THE COAL BY THE PRODUCER.  AS TO THIS POINT,
IN SEABOARD'S VIEW, SINCE IT AS LESSEE OF THE MINERAL RIGHTS IS THE
OWNER OF THE COAL WHEN IT IS EXTRACTED AND UNTIL IT IS CONSUMED AND
THEREFORE NO TITLE EVER PASSES, IT IS IMMATERIAL WHETHER OR NOT IT OR
ITS SUPPLIERS OF THE COAL ARE DETERMINED TO BE THE PRODUCER.  SUPPORT
FOR THE CONCLUSION THAT THERE MUST BE A TRANSFER OF TITLE TO BRING THE
COAL UNDER THE CODE, SEC. 4-II, IS FOUND BY SEABOARD IN THE
PREOCCUPATION OF CONGRESS IN SALES, WHICH ATTITUDE IT FEELS IS SHOWN BY
THE CONTINUOUS REFERENCE IN THE PROVISIONS OF THE ACT TO SALES OR OTHER
TRANSFERS OF TITLE.  FURTHER SUPPORT IS DRAWN FOR THE POSITION BY
REFERENCE TO SEC. 3(A), WHERE "DISPOSAL" IS DECLARED TO INCLUDE
CONSUMPTION BY A PRODUCER OR ANY TRANSFER OF TITLE OTHER THAN BY SALE. 
RELIANCE IS PLACED ALSO ON SEC. 3(B), WHICH BY A TAX OF 19 1/2 PER CENT
OF THE SELLING PRICE IMPELS ADHERENCE TO THE CODE WHEN COAL "WHICH
WOULD BE SUBJECT TO THE APPLICATION OF THE CONDITIONS AND PROVISIONS OF
THE CODE PROVIDED FOR IN SECTION 4, OR OF THE PROVISIONS OF SECTION 4
A" IS SOLD OR OTHERWISE DISPOSED OF BY THE PRODUCER. 

HAD WE HELD THAT SEABOARD WAS THE PRODUCER, THE PERTINENCY OF THIS
ARGUMENT WOULD DISAPPEAR BECAUSE SEABOARD WOULD BE BOTH PRODUCER AND
CONSUMER, AND THEREFORE THIS COAL WOULD BE ENTITLED TO EXEMPTION UNDER
SECS. 4-II (L) AND 4-A.  AS WE DETERMINE OTHERWISE, HOWEVER, IT IS
ESSENTIAL TO EXAMINE THE SOUNDNESS OF THE POSITION ASSERTED BY
SEABOARD, TO WIT, THAT COAL PRODUCED BY THE INSTRUMENTALITIES IS NOT
SUBJECT TO THE PROVISIONS OF SEC. 4-II FOR THE REASON THAT IT IS NOT
SOLD NOR OTHERWISE DISPOSED OF BY THE PRODUCERS.  WE CONCLUDE THAT COAL
EXTRACTED UNDER THE CIRCUMSTANCES OF THIS CASE IS WITHIN THE SCOPE OF
THE CODE PROVISIONS OF SEC. 4-II. 

EXAMINATION OF THE CODE DISCLOSES THAT MINIMUM PRICES FOR CODE COAL
ARE FIXED BY JOINT ACTION OF THE DISTRICT BOARDS AND THE DIRECTOR. 
SEC. 4-I (A), II (A).  THEREAFTER NO CODE COAL MAY BE SOLD AT PRICES
LESS THAN THE FIXED MINIMUM EXCEPT AT THE RISK OF SEVERE PENALTIES. 
CODE COAL IS THAT PRODUCED BY CODE MEMBERS, I.E., COAL PRODUCERS WHO
ACCEPT MEMBERSHIP IN THE CODE.  SEC. 5(A).  ALL PRODUCERS OF BITUMINOUS
COAL WITHIN THE STATUTORY DISTRICTS ARE ELIGIBLE FOR MEMBERSHIP, AND
THEREFORE ALL COAL PRODUCED BY ANY OF THESE PRODUCERS IS POTENTIALLY
CODE COAL.  THE CODE REGULATES THE COAL AND NOT THE PRODUCER.  IN ORDER
TO FORCE THE ELIGIBLE COAL WITHIN THE CODE, AN EXCISE TAX OF 19 1/2% OF
THE SALE PRICE IS PLACED UPON ALL BITUMINOUS COAL "SOLD OR OTHERWISE
DISPOSED OF BY THE PRODUCER THEREOF, WHICH WOULD BE SUBJECT TO THE
APPLICATION OF THE CONDITIONS AND PROVISIONS OF THE CODE," WITH A
BLANKET EXEMPTION FROM THIS TAX OF SALES OR OTHER DISPOSAL BY CODE
MEMBERS. 

THE CORE OF THE ACT IS THE REQUIREMENT THAT COAL BE PUT UNDER THE
CODE OR PAY THE 19 1/2 PER CENT EXCISE.  WE SAID IN SUNSHINE COAL CO.
V. ADKINS, 310 U.S. 381, 392, THAT THE SANCTION TAX APPLIED TO NON-CODE
MEMBERS.  SINCE THEY WERE NOT MEMBERS, IT WAS THERE CONTENDED THAT
THEIR COAL WOULD NOT BE SUBJECT TO THE CODE, BUT IT WAS EXPLAINED IN
THE ADKINS CASE THAT THE CODE WAS INTENDED TO APPLY TO SALES "IN OR
DIRECTLY AFFECTING INTERSTATE COMMERCE IN BITUMINOUS COAL," SEC. 4, 3RD
PARAGRAPH, AND THAT NON-CODE COAL "WOULD BE" SUBJECT TO THE CODE WHEN
IT WAS INTERSTATE COAL OR COAL AFFECTING INTERSTATE COMMERCE AND
THEREFORE SUBJECT TO THE REGULATORY POWER OF CONGRESS.  SO HERE, THE
PURPOSE OF CONGRESS, WHICH WAS TO STABILIZE THE INDUSTRY THROUGH PRICE
REGULATION, WOULD BE HAMPERED BY AN INTERPRETATION THAT REQUIRED A
TRANSFER OF TITLE, IN THE TECHNICAL SENSE, TO BRING A PRODUCER'S COAL,
CONSUMED BY ANOTHER PARTY WITHIN THE AMBIT OF THE COAL CODE.  WE FIND
NO NECESSITY TO SO INTERPRET THE ACT.  THIS CONCLUSION SEEMS TO US IN
ACCORD WITH THE PLAIN LANGUAGE OF SEC. 3(A) AND (B) PROVIDING FOR A TAX
ON "OTHER DISPOSAL" AS WELL AS SALE.  THE DEFINITION OF DISPOSAL AS
INCLUDING "CONSUMPTION OR USE BY A PRODUCER, AND ANY TRANSFER OF TITLE
BY THE PRODUCER OTHER THAN BY SALE" CANNOT BE SAID TO PUT A MEANING ON
DISPOSAL LIMITED TO THE INCLUSION.  CF. FEDERAL LAND BANK OF ST. PAUL
V. BISMARCK LUMBER CO., ANTE, P. 95, AND CASES CITED AT 99-100.  IT IS
TRUE THAT SEC. 4-II (E) SPEAKS OF A VIOLATION OF THE PRICE PROVISIONS
BY "SALE OR DELIVERY OR OFFER FOR SALE OF COAL AT A PRICE BELOW" THE
MINIMUM, WITHOUT REFERENCE TO "OTHER DISPOSITION," THE PHRASE GENERALLY
USED; BUT THE FAILURE TO INCLUDE THOSE WORDS AT THAT POINT DOES NOT, WE
THINK, JUSTIFY AN INTERPRETATION THAT COAL COVERED BY THE CODE MAY BE
DISPOSED OF OTHERWISE THAN BY A TRANSFER OF TITLE WITHOUT PENALTY.  WE
THINK THE LANGUAGE OF SEC. 5(B) RELATING TO FINDINGS ON ORDERS
PUNISHING FOR VIOLATION OF THE CODE SHOWS THIS TO BE TRUE.  IT READS,
SO FAR AS PERTINENT, AS FOLLOWS: 

"  ...  THE COMMISSION SHALL SPECIFICALLY FIND  ...  THE QUANTITY OF
COAL SOLD OR OTHERWISE DISPOSED OF IN VIOLATION OF THE CODE  ...  ; THE
SALES PRICE AT THE MINE OR THE MARKET VALUE AT THE MINE IF DISPOSED OF
OTHERWISE THAN BY SALE AT THE MINE, OR IF SOLD OTHERWISE THAN THROUGH
AN ARMS' LENGTH TRANSACTION, OF THE COAL SOLD OR OTHERWISE DISPOSED OF
BY SUCH CODE MEMBER IN VIOLATION OF THE CODE OR REGULATIONS
THEREUNDER."  50 STAT. 84.  THIS CONCLUSION IS FORTIFIED BY AN
EXAMINATION OF THE TAX SECTION OF THE 1935 ACT FROM WHICH THE PRESENT
SEC. 3 IS OBVIOUSLY DERIVED.  IN THE FIRST OR 1935 ACT, CAPTIVE COAL
WAS TAXED ALONG WITH OTHER COAL.  THE TAX WAS LAID UPON THE "SALE OR
OTHER DISPOSAL OF ALL BITUMINOUS COAL PRODUCED WITHIN THE UNITED
STATES."  IT WAS "15 PER CENTUM ON THE SALE PRICE AT THE MINE, OR IN
THE CASE OF CAPTIVE COAL THE FAIR MARKET VALUE OF SUCH COAL AT THE
MINE."  49 STAT. 993, SEC. 3.  EVIDENTLY THE DRAFTSMAN THOUGHT OF THE
SALE OF FREE COAL AND OF THE "OTHER DISPOSAL" OF CAPTIVE COAL.  SEE
FURTHER, ON THE QUESTION OF THE MEANING OF A SALE, IN RE BUSH TERMINAL
CO., 93 F.2D 661, 663. 

FINALLY, RESPONDENT CONTENDS THAT, IF THE ACT IS CONSTRUED TO APPLY
TO THE CONTRACTUAL ARRANGEMENTS JUST CONSIDERED, IT IS BEYOND THE POWER
OF CONGRESS UNDER THE COMMERCE AND DUE PROCESS CLAUSES OF THE
CONSTITUTION.  THIS IS SAID TO BE SO BECAUSE THERE IS NO POWER IN
CONGRESS TO REGULATE THE PRICE PAID FOR THE SERVICE OF MINING COAL OR
THE CONSIDERATION FOR MINING RIGHTS, AND TO DO SO WOULD VIOLATE THE
FIFTH AMENDMENT.  WE ARE, IN THIS REVIEW BY CERTIORARI, DETERMINING
ONLY THE QUESTION OF WHETHER THE SEABOARD IS A PRODUCER UNDER THE ACT. 
CONGRESSIONAL POWER OVER THAT PROBLEM IS BEYOND DISPUTE.  CURRIN V.
WALLACE, 306 U.S. 1; UNITED STATES V. DARBY, 312 U.S. 100; SUNSHINE
COAL CO. V. ADKINS, 310 U.S. 381.  REVERSED. 

FN1  BITUMINOUS COAL ACT OF 1937, 50 STAT. 72, 15 U.S.C. SEC. 828 ET.
SEQ. (1940).  "SEC.  3.  (A) THERE IS HEREBY IMPOSED UPON THE SALE OR
OTHER DISPOSAL OF BITUMINOUS COAL PRODUCED WITHIN THE UNITED STATES
WHEN SOLD OR OTHERWISE DISPOSED OF BY THE PRODUCER THEREOF AN EXCISE
TAX OF 1 CENT PER TON OF TWO THOUSAND POUNDS. 

"THE TERM 'DISPOSAL' AS USED IN THIS SECTION INCLUDES CONSUMPTION OR
USE (WHETHER IN THE PRODUCTION OF COKE OR FUEL, OR OTHERWISE) BY A
PRODUCER, AND ANY TRANSFER OF TITLE BY THE PRODUCER OTHER THAN BY
SALE. 

"(B)  IN ADDITION TO THE TAX IMPOSED BY SUBSECTION (A) OF THIS
BITUMINOUS COAL PRODUCED WITHIN THE UNITED STATES, WHEN SOLD OR
OTHERWISE DISPOSED OF BY THE PRODUCER THEREOF, WHICH WOULD BE SUBJECT
TO THE APPLICATION OF THE CONDITIONS AND PROVISIONS OF THE CODE
PROVIDED FOR IN SECTION 4, OR OF THE PROVISIONS OF SECTION 4-A, AN
EXCISE TAX IN AN AMOUNT EQUAL TO 19 1/2 PER CENTUM OF THE SALE PRICE AT
THE MINE IN THE CASE OF COAL DISPOSED OF BY SALE AT THE MINE, OR IN THE
CASE OF COAL DISPOSED OF OTHERWISE THAN BY SALE AT THE MINE, AND COAL
SOLD OTHERWISE THAN THROUGH AN ARMS' LENGTH TRANSACTION, 19 1/2 PER
CENTUM OF THE FAIR MARKET VALUE OF SUCH COAL AT THE TIME OF SUCH
DISPOSAL OR SALE.  IN THE CASE OF ANY PRODUCER WHO IS A CODE MEMBER AS
PROVIDED IN SECTION 4 AND IS SO CERTIFIED TO THE COMMISSIONER OF
INTERNAL REVENUE BY THE COMMISSION, THE SALE OR DISPOSAL BY SUCH
PRODUCER DURING THE CONTINUANCE OF HIS MEMBERSHIP IN THE CODE OF COAL
PRODUCED BY HIM SHALL BE EXEMPT FROM THE TAX IMPOSED BY THIS
SUBSECTION. 

     .         .         .         .         . 

"SEC. 4.  THE PROVISIONS OF THIS SECTION SHALL BE PROMULGATED BY THE
COMMISSION AS THE 'BITUMINOUS COAL CODE', AND ARE HEREIN REFERRED TO AS
THE CODE. 

"PRODUCERS ACCEPTING MEMBERSHIP IN THE CODE AS PROVIDED IN SECTION
5(A) SHALL BE, AND ARE HEREIN REFERRED TO AS, CODE MEMBERS, AND THE
PROVISIONS OF SUCH CODE SHALL APPLY ONLY TO SUCH CODE MEMBERS, EXCEPT
AS OTHERWISE PROVIDED BY SUBSECTION (H) OF PART II OF THIS SECTION. 

"FOR THE PURPOSE OF CARRYING OUT THE DECLARED POLICY OF THIS ACT, THE
CODE SHALL CONTAIN THE FOLLOWING CONDITIONS AND PROVISIONS, WHICH ARE
INTENDED TO REGULATE INTERSTATE COMMERCE IN BITUMINOUS COAL AND WHICH
SHALL BE APPLICABLE ONLY TO MATTERS AND TRANSACTIONS IN OR DIRECTLY
AFFECTING INTERSTATE COMMERCE IN BITUMINOUS COAL: 

     .         .         .         .         .

                     PART II - MARKETING. 

     .    .         .         .         . 

"(E)  NO COAL SUBJECT TO THE PROVISIONS OF THIS SECTION SHALL BE SOLD
OR DELIVERED OR OFFERED FOR SALE AT A PRICE BELOW THE MINIMUM OR ABOVE
THE MAXIMUM THEREFOR ESTABLISHED BY THE COMMISSION, AND THE SALE OR
DELIVERY OR OFFER FOR SALE OF COAL AT A PRICE BELOW SUCH MINIMUM OR
ABOVE SUCH MAXIMUM SHALL CONSTITUTE A VIOLATION OF THE CODE: PROVIDED,
THAT THE PROVISIONS OF THIS PARAGRAPH SHALL NOT APPLY TO A LAWFUL AND
BONA FIDE WRITTEN CONTRACT ENTERED INTO PRIOR TO JUNE 16, 1933. 

     .         .         .         .       . 

"(L)  THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO COAL CONSUMED
BY THE PRODUCER OR TO COAL TRANSPORTED BY THE PRODUCER TO HIMSELF FOR
CONSUMPTION BY HIM. 

"SEC. 4-A.  WHENEVER THE COMMISSION UPON INVESTIGATION INSTITUTED
UPON ITS OWN MOTION OR UPON PETITION OF ANY CODE MEMBER, DISTRICT
BOARD, STATE OR POLITICAL SUBDIVISION THEREOF, OR THE CONSUMERS'
COUNSEL, AFTER HEARING FINDS THAT TRANSACTIONS IN COAL IN INTRASTATE
COMMERCE BY ANY PERSON OR IN ANY LOCALITY CAUSE ANY UNDUE OR
UNREASONABLE ADVANTAGE, PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS AND
LOCALITIES IN SUCH COMMERCE ON THE ONE HAND AND INTERSTATE COMMERCE IN
COAL ON THE OTHER HAND, OR ANY UNDUE, UNREASONABLE, OR UNJUST
DISCRIMINATION AGAINST INTERSTATE COMMERCE IN COAL, OR IN ANY MANNER
DIRECTLY AFFECT INTERSTATE COMMERCE IN COAL, THE COMMISSION SHALL BY
ORDER SO DECLARE AND THEREAFTER COAL SOLD, DELIVERED OR OFFERED FOR
SALE IN SUCH INTRASTATE COMMERCE SHALL BE SUBJECT TO THE PROVISIONS OF

"ANY PRODUCER BELIEVING THAT ANY COMMERCE IN COAL IS NOT SUBJECT TO
THE PROVISIONS OF SECTION 4 ...  MAY FILE WITH THE COMMISSION AN
APPLICATION, VERIFIED BY OATH OR AFFIRMATION FOR EXEMPTION, SETTING
FORTH THE FACTS UPON WHICH SUCH CLAIM IS BASED.  ...  WITHIN A
REASONABLE TIME AFTER THE RECEIPT OF ANY APPLICATION FOR EXEMPTION THE
COMMISSION SHALL ENTER AN ORDER GRANTING, OR, AFTER NOTICE AND
OPPORTUNITY FOR HEARING, DENYING OR OTHERWISE DISPOSING OF SUCH
APPLICATION.  ...  ANY APPLICANT AGGRIEVED BY AN ORDER DENYING OR
OTHERWISE DISPOSING OF AN APPLICATION FOR EXEMPTION BY THE COMMISSION
MAY OBTAIN A REVIEW OF SUCH ORDER IN THE MANNER PROVIDED IN SUBSECTION
(B) OF SECTION 6.           .         .         .         .         . 

"SEC. 6.  ...  (B)  ANY PERSON AGGRIEVED BY AN ORDER ISSUED BY THE
COMMISSION IN A PROCEEDING TO WHICH SUCH PERSON IS A PARTY MAY OBTAIN A
REVIEW OF SUCH ORDER IN THE CIRCUIT COURT OF APPEALS OF THE UNITED
STATES, WITHIN ANY CIRCUIT WHEREIN SUCH PERSON RESIDES OR HAS HIS
PRINCIPAL PLACE OF BUSINESS, OR IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA, BY FILING IN SUCH COURT, WITHIN SIXTY
DAYS AFTER THE ENTRY OF SUCH ORDER, A WRITTEN PETITION PRAYING THAT THE
ORDER OF THE COMMISSION BE MODIFIED OR SET ASIDE IN WHOLE OR IN PART. 
A COPY OF SUCH PETITION SHALL BE FORTHWITH SERVED UPON ANY MEMBER OF
THE COMMISSION AND THEREUPON THE COMMISSION SHALL CERTIFY AND FILE IN
THE COURT A TRANSCRIPT OF THE RECORD UPON WHICH THE ORDER COMPLAINED OF
WAS ENTERED.  UPON THE FILING OF SUCH TRANSCRIPT SUCH COURT SHALL HAVE
EXCLUSIVE JURISDICTION TO AFFIRM, MODIFY, AND ENFORCE OR SET ASIDE SUCH
ORDER, IN WHOLE OR IN PART.  NO OBJECTION TO THE ORDER OF THE
COMMISSION SHALL BE CONSIDERED BY THE COURT UNLESS SUCH OBJECTION SHALL
HAVE BEEN URGED BELOW.  THE FINDING OF THE COMMISSION AS TO THE FACTS,
IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE... 

     .         .         .         .         . 

"SEC. 17.  AS USED IN THIS ACT - 

   .         .         .         .         . 

"(C)  THE TERM 'PRODUCER' INCLUDES ALL INDIVIDUALS, FIRMS,
ASSOCIATIONS, CORPORATIONS, TRUSTEES, AND RECEIVERS ENGAGED IN THE
BUSINESS OF MINING COAL." 

THE BITUMINOUS COAL ACT OF 1937, 50 STAT. 72, HAS BEEN EXTENDED TO
APRIL 26, 1943.  ACT OF APRIL 11, 1941, C. 64, 55 STAT. 134. 

FN2  CF. CONSOLIDATED INDIANA COAL CO. V. NATIONAL BITUMINOUS COAL
COMMISSION, 103 F.2D 124; KEYSTONE MINING CO. V. GRAY, 120 F.2D 1,
DECIDED AFTER ALLOWANCE OF CERTIORARI. 

FN3  NATIONAL RECOVERY ADMINISTRATION, REGISTRY NO. 702-45, APPROVED
CODE NO. 24, CODE OF FAIR COMPETITION FOR THE BITUMINOUS COAL INDUSTRY,
PROMULGATED SEPTEMBER 18, 1933.  ARTICLE VI LISTED SELLING BELOW CODE
PRICE AS AN UNFAIR PRACTICE. 

FN4  TESTIMONY OF CHAIRMAN HOSFORD OF THE BITUMINOUS COAL COMMISSION,
HEARINGS BEFORE COMMITTEE ON INTERSTATE COMMERCE, U.S. SENATE, 74TH
CONG., 2ND SESS., ON S. 4668, PP. 32 AND 33. 

FN5  81 CONG. REC. 3136, 75TH CONG., 1ST SESS. 

"IT IS PROPOSED, ON PAGE 30, LINE 17, TO STRIKE OUT THE PERIOD AFTER
THE WORD 'HIM', AND TO INSERT A COMMA AND THE WORDS 'AND FOR THE
PURPOSE OF THIS SUBSECTION THE TERM 'PRODUCER' ALSO INCLUDES ALL
INDIVIDUALS, PARTNERSHIPS, AND CORPORATIONS WHICH ARE FOUND BY THE
COMMISSION, UPON THE EFFECTIVE DATE OF THIS ACT, BONA FIDE AND NOT FOR
THE PURPOSE OF EVADING THE PROVISIONS OF THIS ACT, TO BE OWNED BY, OR
TO BE UNDER COMMON OWNERSHIP WITH, A PRODUCER, PROVIDED SUCH A PRODUCER
DOES NOT SELL ANY PART OF HIS PRODUCTION ON THE COMMERCIAL MARKET.' 
...  THE PURPOSE OF THE AMENDMENT IS SIMPLY TO EXTEND THE EXCEPTION
CARRIED BY SUBSECTION (L), ON PAGE 30, SO AS TO INCLUDE UNDER THE
DEFINITION OF THE WORD 'PRODUCER' A WHOLLY OWNED SUBSIDIARY OR OTHER
LEGAL ENTITY HAVING IDENTICAL OWNERSHIP.  THAT IS THE WHOLE PURPOSE. 

"THE QUESTION IS ON AGREEING TO THE AMENDMENT OFFERED BY THE SENATOR
FROM OHIO. 

"THE AMENDMENT WAS AGREED TO." 

FN6  H. REP. NO. 578, 75TH CONG., 1ST SESS., PP. 1, 8. 

FN7  TREASURY - UNITED STATES V. JOHNSTON, 124 U.S. 236, 249;
INTERIOR - SWAMP LANDS - NORTHERN PACIFIC RY. CO. V. MCCOMAS, 250 U.S.
387, 392; CUSTOMS APPRAISERS - PASSAVANT V. UNITED STATES, 148 U.S.
214, 219; POST OFFICE - BATES & GUILD CO. V. PAYNE, 194 U.S. 106. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. JUSTICE ROBERTS: 

I THINK THE JUDGMENT SHOULD BE AFFIRMED.  THERE ARE LIMITS TO WHICH
ADMINISTRATIVE OFFICERS AND COURTS MAY APPROPRIATELY GO IN
RECONSTRUCTING A STATUTE SO AS TO ACCOMPLISH AIMS WHICH THE LEGISLATURE
MIGHT HAVE HAD BUT WHICH THE STATUTE ITSELF, AND ITS LEGISLATIVE
HISTORY, DO NOT DISCLOSE.  THE PRESENT DECISION, IT SEEMS TO ME, PASSES
THAT LIMITATION. 

THE CASE INVOLVES AN ACT OF CONGRESS WHICH, IN IMPLEMENTING ITS
DECLARED PURPOSE AND INTENT, CAREFULLY DELIMITS BY INCLUSIVE AND
EXCLUSIVE DEFINITION THOSE WHO SHALL AND THOSE WHO SHALL NOT BE SUBJECT
TO ITS REGULATORY PROVISIONS.  UPON A RECORD IN WHICH THERE IS NOT A
SINGLE DISPUTED FACT, THE BARE QUESTION IS PRESENTED WHETHER THE WORDS
THE CONGRESS USED BRING THE RESPONDENTS WITHIN THE BITUMINOUS COAL CODE
OR EXCLUDE THEM FROM ITS OPERATION.  IN ANSWERING THAT QUESTION, THE
DIRECTOR MADE NO CONTROVERTED FINDING OF FACT, EXERCISED NO JUDGMENT AS
TO WHAT THE RELEVANT CIRCUMSTANCES WERE, BUT MERELY DECIDED THAT THE
MEANING OF THE STATUTE WAS THAT THE RESPONDENTS' TRANSACTIONS REQUIRED
THAT THEY BECOME MEMBERS OF THE CODE OR SUFFER THE PENALTY OF THE 19
1/2% TAX FOR FAILING TO JOIN THE CODE.  IF THE DIRECTOR WAS IN ERROR,
HIS ERROR WAS A MISCONSTRUCTION OF THE ACT WHICH CREATED HIS OFFICE;
AND THAT ERROR, UNDER ALL RELEVANT AUTHORITIES, IS SUBJECT TO COURT
REVIEW.  IT IS SPECIFICALLY MADE SO SUBJECT TO REVIEW BY THE STATUTE IN
QUESTION.  FN1 

THE BITUMINOUS COAL ACT, AS ITS PREAMBLE DECLARES, IS AIMED AT THE
REGULATION OF PRICES AND UNFAIR METHODS OF COMPETITION IN THE MARKETING
OF BITUMINOUS COAL IN INTERSTATE COMMERCE,  FN2  AS THE MEANS OF
PROMOTING THAT COMMERCE AND RELIEVING IT FROM PRACTICES AND METHODS
WHICH BURDEN AND OBSTRUCT IT.  THE BODY OF THE ACT IS CONFINED TO THE
ENFORCEMENT OF THESE PURPOSES AND NONE OTHER. 

TO ACCOMPLISH THE DECLARED END, THE STATUTE ADOPTS A COMPREHENSIVE
SCHEME FOR THE REGULATION OF PRICES AND TRADE PRACTICES IN THE
MARKETING OF BITUMINOUS COAL IN INTERSTATE COMMERCE.  IT CREATES A
COMMISSION AND, BY SEC. 4, DIRECTS THE COMMISSION TO PROMULGATE A
BITUMINOUS COAL CODE, TO WHICH COAL PRODUCERS WHO ARE "CODE MEMBERS"
ARE MADE SUBJECT.  BY PART II OF SEC. 4, THE COMMISSION IS GIVEN
AUTHORITY TO FIX MINIMUM AND MAXIMUM PRICES FOR CODE MEMBERS IN
CONFORMITY TO SPECIFIED STANDARDS.  SUBDIVISION (I) OF SEC. 4, PART II,
SPECIFIES METHODS OF COMPETITION IN THE MARKETING OF COAL WHICH ARE
DECLARED TO BE UNFAIR AND VIOLATIONS OF THE CODE. 

OTHERWISE DISPOSED OF BY THE PRODUCER" AND DEFINES DISPOSAL, FOR THE
PURPOSES OF THIS SECTION ALONE, AS INCLUDING "CONSUMPTION OR USE" BY A
PRODUCER AND ANY TRANSFER OF TITLE BY A PRODUCER OTHER THAN BY SALE. 
THE ACKNOWLEDGED PURPOSE OF THIS SUBSECTION IS THE LEVY ON ALL COAL
TAKEN OUT OF THE GROUND, AND USED BY WHOMSOEVER, OF A SMALL TAX TO PAY
THE EXPENSE OF THE ADMINISTRATION OF THE ACT.  THE RESPONDENTS ADMIT
THEIR LIABILITY FOR THIS EXACTION.  THEY HAVE PAID THIS TAX AND NO
QUESTION ARISES IN RESPECT OF IT. 

PROVISIONS OF SEC. 4, IMPOSES A PENAL TAX OF 19 1/2% OF THE SALE PRICE
OF THE COAL, OR OF ITS FAIR MARKET VALUE WHEN DISPOSED OF OTHERWISE
THAN BY A SALE, ON ALL THE COAL SOLD OR OTHERWISE DISPOSED OF BY A
PRODUCER TO WHOM THE REGULATORY PROVISIONS AS TO PRICE AND UNFAIR
METHODS OF COMPETITION INCLUDED IN SEC. 4 ARE APPLICABLE.  ONLY THOSE
WHO ARE PRODUCERS OF COAL AND WOULD BE SUBJECT TO THE PROVISIONS OF THE
CODE ARE LIABLE TO THE PENALTY TAX AS AN ALTERNATIVE TO JOINING THE
CODE AND THUS COMING WITHIN THE REGULATORY PROVISIONS APPLICABLE TO
SUCH CODE MEMBERS.  SUCH REGULATORY PROVISIONS ARE CONCERNED ONLY WITH
THOSE WHO SELL OR MARKET COAL. 

SUBDIVISION (L) OF PART II OF SEC. 4 DECLARES:  "THE PROVISIONS OF
THIS SECTION SHALL NOT APPLY TO COAL CONSUMED BY THE PRODUCER OR TO
COAL TRANSPORTED BY THE PRODUCER TO HIMSELF FOR CONSUMPTION BY HIM." 
THE RESPONDENTS INSIST THAT THIS SUBSECTION PLAINLY EXEMPTS THEM FROM
BECOMING MEMBERS OF THE CODE AND THAT, IN PURSUANCE OF THE SUBSECTION,
THE DIRECTOR SHOULD HAVE GRANTED THEIR APPLICATION FOR EXEMPTION. 

SOME STRESS IS LAID BY THE PETITIONERS ON SEC. 17(C) WHICH DECLARES
THAT: 

"AS USED IN THIS ACT, 

    .         .         .         .         . 

"(C)  THE TERM 'PRODUCER' INCLUDES ALL INDIVIDUALS, FIRMS,
ASSOCIATIONS, CORPORATIONS, TRUSTEES, AND RECEIVERS ENGAGED IN THE
BUSINESS OF MINING COAL." 

IT SEEMS PLAIN ENOUGH THAT THIS PROVISION WAS NOT INTENDED TO NULLIFY
SUBSECTION (L) OF SEC. 4, PART II. THE EVIDENT PURPOSE WAS TO MAKE IT
CLEAR THAT, UNDER WHATEVER FORM THE BUSINESS WAS DONE, THE OPERATOR
SHOULD COME UNDER THE APPLICABLE PROVISIONS OF THE STATUTE.  THIS
SUBSECTION HAS NO RELEVANCE TO THE QUESTION PRESENTED IN THIS CASE. 

THE TERM "PRODUCER" IS NOT A TECHNICAL TERM OR A TERM OF ART, BUT THE
STATUTE HAS NOT LEFT THE DIRECTOR OR THE COURTS WITHOUT GUIDES
RESPECTING THE MEANING OF THE WORD AS USED IN THE STATUTE.  IT IS THE
DIRECTOR'S DUTY TO OBSERVE THOSE GUIDES IN APPLYING THE STATUTE AND, IF
HE FAILS SO TO DO, IT IS THE OBLIGATION OF THE COURTS TO OBSERVE THEM
IN PERFORMING THEIR STATUTORY DUTY TO REVIEW HIS DETERMINATION.  THE
CONTEXT, THE PURPOSE OF THE ACT, AND THE MEANS ADOPTED TO CARRY THEM
INTO EFFECT, MAKE CLEAR THE MEANING OF THE WORD "PRODUCER" AS USED IN
THE STATUTE.  THIS COURT OBVIOUSLY FAILS IN PERFORMING ITS DUTY AND
ABDICATES ITS FUNCTION AS A COURT OF REVIEW IF IT ACCEPTS, AS THE
OPINION SEEMS TO DO, THE DIRECTOR'S DEFINITION OF "PRODUCER" AND THEN
PROCEEDS TO ACCOMMODATE THE MEANING OF RELATED PROVISIONS TO THE
PREDETERMINED DEFINITION.  SO TO DO IS A COMPLETE REVERSAL OF THE
NORMAL AND USUAL METHOD OF CONSTRUING A STATUTE. 

THE LEGISLATIVE HISTORY  FN3  DEMONSTRATES, AND THE OPINION OF THE
COURT CONCEDES, THAT THE PURPOSE OF SEC. 4(PT. II (L)) WAS TO EXCLUDE
FROM THE PROVISIONS OF THE ACT REGULATING PRICES AND OTHER MATTERS OF
COMPETITION IN INTERSTATE MARKETING, COAL PRODUCED FROM "CAPTIVE
MINES"; THAT IS, COAL PRODUCED BY THE OWNER OF A MINE AND CONSUMED BY
HIM WITHOUT PLACING IT ON THE MARKET.  IT IS, AS IT MUST BE, ALSO
CONCEDED THAT SUBDIVISION (L) EXCLUDES FROM THE OPERATION OF THE ACT
ONE WHO MINES COAL BY HIS OWN EMPLOYES, UPON LAND OWNED OR LEASED BY
HIM, AND CONSUMES IT IN HIS BUSINESS OR INDUSTRY.  THE ONLY POSSIBLE
DIFFERENTIATION BETWEEN THE RESPONDENTS' METHOD OF CONDUCTING THE
BUSINESS AND THAT OF THE USUAL CAPTIVE MINE LIES IN THE FACT THAT THE
RESPONDENTS' COAL IS MINED BY AN INDEPENDENT CONTRACTOR INSTEAD OF BY
EMPLOYES.  THAT CIRCUMSTANCE, HOWEVER, WILL NOT JUSTIFY THE STATEMENT
THAT RESPONDENTS DO NOT PRODUCE THE COAL, ANY MORE THAN IT WOULD
JUSTIFY THE STATEMENT THAT THEY WOULD NOT TRANSPORT COAL TO THEMSELVES,
WITHIN THE MEANING OF THE ACT, IF THEY SHIPPED IT BY A COMMON CARRIER
WHO WAS AN INDEPENDENT CONTRACTOR.  THE CIRCUMSTANCE THAT THE COAL IS
MINED BY A CONTRACTOR INSTEAD OF AN EMPLOYE, OR TRANSPORTED BY A COMMON
CARRIER, CANNOT HAVE ANY MORE, OR ANY DIFFERENT, EFFECT UPON THE
SUBJECTS OF REGULATION - PRICES AND UNFAIR METHODS OF COMPETITION - IN
THE ONE CASE THAN IN THE OTHER.  IN BOTH CASES, THE OWNER WOULD CONSUME
COAL WHICH WOULD OTHERWISE COME ON THE MARKET.  IN NEITHER CASE WOULD
THE COAL BE BROUGHT INTO COMPETITION WITH MARKETED COAL.  IN EACH CASE,
THE OWNER WOULD REMAIN FREE TO BUY COAL ON THE MARKET WHENEVER THE
MARKET PRICE FELL BELOW THE COST OF PRODUCTION AT HIS OWN MINE. 

SUBDIVISION (L) CANNOT APPROPRIATELY BE CONSTRUED TO DENY RESPONDENTS
THE RIGHT TO BE EXCLUDED FROM THE OPERATION OF THE ACT UPON THEIR
APPLICATION AS PROVIDED IN SEC. 4-A WHEN THERE ARE PLAINLY NO
AFFIRMATIVE PROVISIONS OF THE ACT SUBJECTING THEM TO ITS REGULATION. 
IT WILL HARDLY BE DENIED THAT, BY RESPONDENTS' TOTAL OPERATION, COAL IS
PRODUCED.  IF THEY ARE NOT THE PRODUCERS, BECAUSE THEY PAY A CONTRACT
PRICE INSTEAD OF WAGES FOR ITS PRODUCTION, THEY ARE NOT SUBJECT TO THE
19 1/2% TAX WHICH APPLIES ONLY TO PRODUCERS; AND THEY ARE THUS EXEMPT
FROM THE ONLY SANCTION WHICH WOULD COMPEL THEM TO BECOME CODE MEMBERS
SUBJECT TO THE REGULATORY PROVISIONS OF THE ACT.  SINCE THEY MARKET NO
COAL, THE PROVISIONS OF SEC. 4 RELATING TO PRICES AND METHODS OF
COMPETITION IN THE MARKETING OF COAL ARE NOT APPLICABLE TO THEM.  ON
THE OTHER HAND, IF THE INDEPENDENT CONTRACTOR WHOM RESPONDENTS EMPLOY
TO MINE THE COAL IS DEEMED THE PRODUCER OF THE COAL, HE LIKEWISE IS
EXEMPT FROM THE REGULATORY PROVISIONS AND ALSO EXEMPT FROM THE 19 1/2%
PENAL TAX.  FOR, EVEN IF HE BE CALLED A PRODUCER, HE NEITHER MARKETS
NOR SELLS THE COAL AND HE CANNOT BE SAID TO DISPOSE OF COAL WHICH HE
DOES NOT OWN.  DISPOSAL MUST MEAN SOMETHING MORE THAN PHYSICAL
PRODUCTION, DELIVERY, OR TRANSPORTATION OF THE COAL OF ANOTHER.  IF IT
WERE OTHERWISE, THE SUPERINTENDENT OF A CAPTIVE MINE WOULD BE SUBJECT
TO THE TAX BECAUSE HE IS ENGAGED IN MINING COAL AND DELIVERING IT TO
THE OWNER WHO CONSUMES IT.  IT IS WELL KNOWN THAT, IN MANY COAL FIELDS,
COAL IS GOTTEN OUT BY EMPLOYING A MINER WHO IN TURN EMPLOYS HIS OWN
GANG TO ASSIST HIM IN THE MINE.  IF THE DIRECTOR'S POSITION IS CORRECT,
THIS METHOD OF OPERATION WOULD SUBJECT THE OWNER AND OPERATOR OF A
CAPTIVE MINE TO REGULATION UNDER THE ACT.  THAT VIEW WOULD BE PLAINLY
UNTENABLE. 

THE VICE IN THE CONSTRUCTION WHICH THE COURT NOW ADOPTS, APPARENTLY
ONLY BECAUSE THE DIRECTOR HAS ADOPTED IT, LIES IN THE FACT THAT THIS
CONSTRUCTION IS OF PRACTICAL SIGNIFICANCE ONLY AS IT IS PRELIMINARY TO
REGULATION OF FEATURES OF THE COAL INDUSTRY OTHER THAN PRICES AND
METHODS OF COMPETITION IN THE MARKETING OF COAL.  CONGRESS HAS NOT SEEN
FIT TO PRESCRIBE SUCH REGULATION.  IT IS CLEAR THAT THE ATTEMPTED
SUBJECTION OF RESPONDENTS TO THE CONTROL OF THE COMMISSION IS WITHOUT
CONGRESSIONAL AUTHORITY.    FN1  SECTION 6(B) AND (D). 

FN2  SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381, 388, 393. 

FN3  HEARINGS BEFORE THE COMMITTEE ON INTERSTATE COMMERCE OF THE
SENATE, 2D SESS., 74TH CONG., ON S. 4668, PP. 32, 33. 

THE CHIEF JUSTICE AND MR. JUSTICE BYRNES JOIN IN THIS OPINION. 
..END :

















UNITED STATES V. EMORY, 314 U.S. 423 


NO. 33.  ARGUED NOVEMBER 10, 1941.  - DECIDED DECEMBER 15, 1941.  - 143
S.W.2D 318, REVERSED. 


1.  THE PRIORITY ESTABLISHED BY R.S. SEC. 3466 FOR DEBTS DUE TO THE
UNITED STATES IN CASES IN WHICH "AN ACT OF BANKRUPTCY IS COMMITTED," IS
APPLICABLE WHERE, UPON A CREDITOR'S PETITION, A RECEIVER HAS BEEN
APPOINTED TO LIQUIDATE THE ASSETS OF AN INSOLVENT CORPORATION.  P.
426. 

2.  THE PURPOSE OF R.S. SEC. 3466 IS TO SECURE ADEQUATE PUBLIC
REVENUES TO SUSTAIN THE PUBLIC BURDEN, AND IT IS TO BE CONSTRUED
LIBERALLY IN ORDER TO EFFECTUATE THAT PURPOSE.  P. 426. 

3.  IN AN EQUITY RECEIVERSHIP PROCEEDING IN A STATE COURT, A CLAIM OF
THE UNITED STATES ARISING UNDER THE NATIONAL HOUSING ACT IS ENTITLED,
UNDER R.S. SEC. 3466, TO PRIORITY OVER CLAIMS FOR WAGES.  P. 426. 

4.  THE RIGHT OF THE UNITED STATES TO PRIORITY IN SUCH CASE IS NOT
AFFECTED BY STATE LAW NOR BY SEC. 64A OF THE BANKRUPTCY ACT; NOR IS IT
INCONSISTENT WITH THE NATIONAL HOUSING ACT.  PP. 427, 429. 

UNITED STATES V. EMORY ET AL. 

CERTIORARI TO THE SPRINGFIELD COURT OF APPEALS OF MISSOURI. 

CERTIORARI, 313 U.S. 552, TO REVIEW A JUDGMENT DENYING A CLAIM OF THE
UNITED STATES TO PRIORITY.  THE JUDGMENT OF THE STATE COURT OF FIRST
INSTANCE WAS AFFIRMED BY THE SPRINGFIELD COURT OF APPEALS AND THE
SUPREME COURT OF MISSOURI DENIED A PETITION FOR CERTIORARI. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE APPLICATION OF SEC. 3466 OF THE REVISED
STATUTES TO A CLAIM OF THE UNITED STATES UNDER THE NATIONAL HOUSING ACT
IN AN EQUITY RECEIVERSHIP PROCEEDING IN A STATE COURT. 

THE ST. JAMES DISTILLERY, A CORPORATION, EXECUTED A NOTE TO THE
INDUSTRIAL BANK AND TRUST COMPANY OF ST. LOUIS ON SEPTEMBER 23, 1935. 
ON JULY 14, 1936, THE BANK ENDORSED THE NOTE AND DELIVERED IT TO THE
FEDERAL HOUSING ADMINISTRATION, ACTING ON BEHALF OF THE UNITED STATES,
UNDER A CONTRACT OF INSURANCE AND GUARANTY PROVIDED FOR IN TITLE I OF
THE NATIONAL HOUSING ACT.  THE UNITED STATES, THROUGH THE FEDERAL
HOUSING ADMINISTRATION, ON THAT DATE REIMBURSED THE BANK IN THE AMOUNT
OF $5988.88, THE BALANCE DUE ON THE NOTE.  EMORY, CLAIMING WAGES DUE
HIM, FILED A PETITION ON AUGUST 27, 1936 IN THE CIRCUIT COURT OF PHELPS
COUNTY, MISSOURI, ALLEGING THAT THE ST. JAMES DISTILLERY WAS HOPELESSLY
INSOLVENT AND PRAYING THAT A RECEIVER BE APPOINTED.  ON SEPTEMBER 9,
THE CIRCUIT COURT FOUND ALL THE ISSUES IN EMORY'S FAVOR AND APPOINTED A
RECEIVER WHO TOOK POSSESSION OF THE CORPORATE ASSETS. 

AFTER DEDUCTIONS FOR THE COSTS OF THE RECEIVERSHIP, THE ASSETS
AVAILABLE FOR DISTRIBUTION TOTALED $678.  AGAINST THIS AMOUNT THE WAGE
CLAIMS OF "ABOUT TWELVE INDIVIDUALS" WERE FILED.  THE SEPARATE AMOUNTS
OF THESE CLAIMS WERE NEITHER STIPULATED NOR DETERMINED BY THE COURTS
BELOW; THEIR AGGREGATE WAS "ABOUT $900."  THE UNITED STATES, ON BEHALF
OF THE FEDERAL HOUSING ADMINISTRATION, FILED A CLAIM FOR THE $5988.88
DUE ON THE NOTE.  THE WAGE CLAIMANTS ASSERTED PRIORITY UNDER SEC. 1168
OF THE REVISED STATUTES OF MISSOURI; FN1  THE UNITED STATES ASSERTED
PRIORITY UNDER SEC. 3466 OF THE REVISED STATUTES OF THE UNITED STATES. 
FN2 

THE CIRCUIT COURT OF PHELPS COUNTY DECIDED THAT THE CLAIM OF THE
UNITED STATES SHOULD BE TREATED AS AN ORDINARY CLAIM AGAINST THE
ESTATE, AND THAT THE WAGE CLAIMS SHOULD BE PAID FIRST.  ON APPEAL, THE
SPRINGFIELD COURT OF APPEALS HELD THAT THE CLAIM OF THE UNITED STATES
ON BEHALF OF THE FEDERAL HOUSING ADMINISTRATION WAS ACCORDED PREFERENCE
OVER ORDINARY CLAIMS BY SEC. 3466 OF THE REVISED STATUTES OF THE UNITED
STATES.  CONSEQUENTLY, IT WAS OF THE OPINION THAT THE CIRCUIT COURT HAD
ERRED IN TREATING THE CLAIM OF THE UNITED STATES AS AN ORDINARY CLAIM. 
HOWEVER, IT HELD FURTHER THAT THE ERROR WAS OF NO CONSEQUENCE, SINCE
THE MISSOURI STATUTE GRANTED PRIORITY TO WAGE CLAIMS EVEN OVER OTHER
PREFERRED CLAIMS AND NO ASSETS WOULD REMAIN AFTER THEY HAD BEEN
SATISFIED.  REHEARING WAS DENIED, AND THE SUPREME COURT OF MISSOURI
DENIED A PETITION FOR CERTIORARI.  WE GRANTED CERTIORARI BECAUSE OF THE
IMPORTANCE OF THE QUESTION AND BECAUSE OF AN ASSERTED CONFLICT OF
DECISIONS. 

THE APPLICABILITY OF SEC. 3466 TO THIS CASE IS CLEAR.  THE SECTION
APPLIES IN TERMS TO CASES "(1) IN WHICH A DEBTOR, NOT HAVING SUFFICIENT
PROPERTY TO PAY ALL HIS DEBTS, MAKES A VOLUNTARY ASSIGNMENT THEREOF, OR
(2) IN WHICH THE ESTATE AND EFFECTS OF AN ABSCONDING, CONCEALED, OR
ABSENT DEBTOR ARE ATTACHED BY PROCESS OF LAW,  ...  (OR)(3) IN WHICH AN
ACT OF BANKRUPTCY IS COMMITTED."  THIS CASE FALLS WITHIN THE THIRD
CATEGORY.  IT IS AGREED THAT THE ST. JAMES DISTILLERY WAS INSOLVENT "ON
OR BEFORE AUGUST 1936" AND THAT IN RESPONSE TO A CREDITOR'S PETITION A
RECEIVER WAS APPOINTED TO LIQUIDATE THE CORPORATE ASSETS.  THE
APPOINTMENT OF A RECEIVER UNDER SUCH CIRCUMSTANCES IS AMONG THE MOST
COMMON EXAMPLES OF AN "ACT OF BANKRUPTCY."  CF. SEC. 3(A)(4) OF THE
BANKRUPTCY ACT, U.S.C., TITLE 11, SEC. 21(A)(4). 

JUST SUCH PROCEEDINGS AS THIS, THEREFORE, ARE GOVERNED BY THE PLAIN
COMMAND OF SEC. 3466 THAT "DEBTS DUE TO THE UNITED STATES SHALL BE
FIRST SATISFIED."  THE PURPOSE OF THIS SECTION IS "TO SECURE ADEQUATE
PUBLIC REVENUES TO SUSTAIN THE PUBLIC BURDEN" (UNITED STATES V. STATE
BANK OF NORTH CAROLINA, 6 PET. 29, 35), AND IT IS TO BE CONSTRUED
LIBERALLY IN ORDER TO EFFECTUATE THAT PURPOSE (BRAMWELL V. U.S.
FIDELITY & GUARANTY CO., 269 U.S. 483, 487).  IN VIEW OF THIS LANGUAGE,
PURPOSE, AND RULE OF CONSTRUCTION, THE PRIORITY ASSERTED HERE BY THE
UNITED STATES APPEARS TO BE SECURELY ESTABLISHED. 

THE COURT BELOW, HOWEVER, HELD OTHERWISE.  IN GRANTING PRIORITY TO
THE WAGE CLAIMS OVER THAT OF THE UNITED STATES, IT RELIED UPON MISSOURI
LAW.  IT RECOGNIZED, AS THE AUTHORITIES OBLIGED IT TO RECOGNIZE,  FN3
THAT THE STATE STATUTE COULD NOT PREVAIL IF IT WAS IN CONFLICT WITH
SEC. 3466.  BUT IT DECIDED THAT NO SUCH CONFLICT AROSE, FOR THE REASON
THAT SEC. 3466 HAD BEEN IMPLIEDLY MODIFIED BY SEC. 64A OF THE
BANKRUPTCY ACT,  FN4  WHICH, LIKE THE MISSOURI STATUTE, REQUIRES THAT
WAGE CLAIMS BE SATISFIED BEFORE THOSE OF THE UNITED STATES. 

THE JUDGMENT BELOW MUST HAVE RESTED UPON EITHER OF THE FOLLOWING
THEORIES:  THAT CONGRESS INTENDED BY SEC. 64A OF THE BANKRUPTCY ACT TO
SUBORDINATE CLAIMS OF THE UNITED STATES TO WAGE CLAIMS IN NON
BANKRUPTCY PROCEEDINGS GENERALLY; OR THAT CONGRESS INTENDED BY SEC. 64A
TO MODIFY SEC. 3466 ONLY SO FAR AS TO GRANT PRIORITY OVER THE UNITED
STATES TO WAGE CLAIMANTS IN STATE NON-BANKRUPTCY PROCEEDINGS WHEN THEY
WOULD BE ENTITLED TO SUCH PRIORITY BY OTHERWISE APPLICABLE STATE LAW. 

THERE IS A DIFFICULTY COMMON TO BOTH THEORIES WHICH WE REGARD AS
INSURMOUNTABLE.  NEITHER THE LANGUAGE OF SEC. 64A NOR THE CONGRESSIONAL
HISTORY OF THE LEGISLATION HERE INVOLVED SUPPORTS THE PROPOSITION THAT
SEC. 64A WAS INTENDED TO ELIMINATE, EITHER PARTIALLY OR WHOLLY, THE
PRIORITY OF CLAIMS OF THE UNITED STATES IN NON-BANKRUPTCY PROCEEDINGS. 

THE PROVISIONS OF SEC. 3466 HAVE BEEN IN FORCE SINCE 1797, WITHOUT
SIGNIFICANT MODIFICATIONS.  1 STAT. 515.  THE FIRST THREE FEDERAL
BANKRUPTCY ACTS  FN5  SPECIFICALLY PRESERVED THE PRIORITY OF THE UNITED
STATES OVER ALL OTHER CLAIMANTS IN BANKRUPTCY PROCEEDINGS IN THE
FEDERAL COURTS.  SECTION 64 OF THE BANKRUPTCY ACT OF 1898,  FN6
HOWEVER, DISTURBED THIS STATE OF AFFAIRS.  IT PROVIDED AN ORDER OF
DISTRIBUTION OF THE ASSETS OF BANKRUPT ESTATES IN WHICH CERTAIN WAGE
CLAIMS PRECEDED NON-TAX CLAIMS OF THE UNITED STATES.  WHILE SEC. 64 HAS
BEEN ALTERED SINCE 1898 IN SEVERAL PARTICULARS, THE PRIORITY OF WAGE
CLAIMS OVER NON-TAX CLAIMS OF THE UNITED STATES HAS CONTINUED. 
CONSEQUENTLY, WE MUST LOOK TO THE ACT OF 1898 FOR EVIDENCE THAT THE
PRIORITY ACCORDED TO WAGE CLAIMS BY SEC. 64 WAS INTENDED TO APPLY TO
MORE THAN BANKRUPTCY PROCEEDINGS IN THE FEDERAL COURTS. 

WE FIND NO SUCH EVIDENCE.  THE ENTIRE ACT OF 1898, AS SEC. 2 IN
PARTICULAR PLAINLY REVEALS, WAS DESIGNED TO CREATE FEDERAL COURTS OF
BANKRUPTCY AND TO DEFINE THEIR FUNCTIONS.  INDEED, SEC. 64 ITSELF, IN
SUBDIVISION (A), REFERS TO THE "COURT"; SEC. 1 PROVIDES THAT, AS USED
IN THE ACT, "COURT" MEANS "THE COURT OF BANKRUPTCY IN WHICH THE
PROCEEDINGS ARE PENDING"; AND SEC. 1 ALSO PROVIDES THAT "COURTS OF
BANKRUPTCY," AS USED IN THE ACT, MEAN THE FEDERAL DISTRICT COURTS AND A
FEW OTHER FEDERAL COURTS.  THERE IS NO INTERNAL SIGN THAT ANY PART OF
SEC. 64 WAS INTENDED TO APPLY TO STATE COURTS OR TO NON-BANKRUPTCY
PROCEEDINGS IN THE FEDERAL COURTS.  WE HAVE LOOKED IN VAIN IN THE
COMMITTEE REPORTS AND THE DEBATE UPON THE BILL FOR ANY EXTERNAL HINT OF
SUCH AN INTENTION. 

IT IS NOT STRANGE, THEREFORE, THAT BOTH COURTS AND COMMENTATORS HAVE
ASSUMED THAT THE APPLICATION OF SEC. 64 OF THE ACT OF 1898 WAS LIMITED
TO FEDERAL BANKRUPTCY PROCEEDINGS, AND THAT THE PRIORITY OF CLAIMS OF
THE UNITED STATES IN NON-BANKRUPTCY PROCEEDINGS REMAINED UNAFFECTED. 
BRAMWELL V. U.S. FIDELITY & GUARANTY CO., 269 U.S. 483; PRICE V. UNITED
STATES, 269 U.S. 492; STRIPE V. UNITED STATES, 269 U.S. 503; UNITED
STATES V. BUTTERWORTH-JUDSON, 269 U.S. 504; MELLON V. MICHIGAN TRUST
CO., 271 U.S. 236, 238-239; SPOKANE COUNTY V. UNITED STATES, 279 U.S.
80; NEW YORK V. MACLAY, 288 U.S. 290.  SEE ROGGE, THE DIFFERENCES IN
PRIORITY OF THE UNITED STATES IN BANKRUPTCY AND IN EQUITY
RECEIVERSHIPS, 43 HARV. L. REV. 251; BLAIR, THE PRIORITY OF THE UNITED
STATES IN EQUITY RECEIVERSHIPS, 39 HARV. L. REV. 1.  WE ARE AWARE OF
BUT A SINGLE CASE IN WHICH AN APPELLATE COURT HAS SPECIFICALLY PASSED
UPON THE CONTENTION THAT THE PRIORITY GRANTED TO THE UNITED STATES IN
NON-BANKRUPTCY PROCEEDINGS BY SEC. 3466 HAS BEEN MODIFIED BY SEC. 64 OF
THE BANKRUPTCY ACT.  AND IN THAT CASE, THE CONTENTION WAS REJECTED. 
MATTER OF KUPSHIRE COATS, INC., 272 N.Y. 221, 5 N.E.2D 715.  FN7 

WHILE THE POINT WAS NOT DISCUSSED IN THE COURTS BELOW, IT IS NOW
URGED THAT THE OBJECTIVES AND PROVISIONS OF THE.  NATIONAL HOUSING ACT
REQUIRE US TO HOLD THAT CLAIMS OF THE UNITED STATES ARISING UNDER IT
ARE NOT ENTITLED TO THE PRIORITY AWARDED BY SEC. 3466.  WE ARE AWARE OF
NO CANON OF STATUTORY CONSTRUCTION COMPELLING US TO HOLD THAT THE WORD
"FIRST" IN A 150 YEAR OLD STATUTE MEANS "SECOND" OR "THIRD," UNLESS
CONGRESS LATER HAS SAID SO OR IMPLIED IT UNMISTAKABLY. 

CERTAINLY, THERE IS NO PROVISION IN THE NATIONAL HOUSING ACT
EXPRESSLY RELINQUISHING THE PRIORITY OF THE UNITED STATES WITH RESPECT
TO CLAIMS ARISING UNDER IT.  AT BEST, THEREFORE, SUCH AN INTENTION ON
THE PART OF CONGRESS MUST BE FOUND IN SOME PATENT INCONSISTENCY BETWEEN
THE PURPOSES OF THE HOUSING ACT AND SEC. 3466.  THE PLAIN OBJECTIVE OF
THE HOUSING ACT WAS TO STIMULATE THE BUILDING TRADES AND TO INCREASE
EMPLOYMENT.  IN ORDER TO INDUCE BANKS AND OTHER LENDING INSTITUTIONS TO
GET THE PROGRAM UNDER WAY, CONGRESS PROMISED THAT THE UNITED STATES
WOULD MAKE GOOD UP TO 20% ON THE LOSSES THEY MIGHT INCUR ON SUCH
LOANS.  FN8  AS BETWEEN THE GOVERNMENT AND THE LENDING INSTITUTIONS, IT
WAS CLEARLY INTENDED THAT THE UNITED STATES SHOULD BEAR THE LOSSES
RESULTING FROM DEFAULTS.  BUT BEYOND THIS WE MAY NOT GO.  THERE IS
NOTHING TO SHOW A FURTHER INTENTION THAT THE UNITED STATES SHOULD
RELINQUISH ITS PRIORITY AS TO CLAIMS AGAINST DEFAULTING AND INSOLVENT
BORROWERS WHOSE NOTES IT TAKES UP FROM THE LENDING INSTITUTION PURSUANT
TO THE INSURANCE CONTRACT.  THAT IS, THE ULTIMATE COLLECTION OF BAD
LOANS WAS CONSIGNED TO THE UNITED STATES RATHER THAN TO THE LENDING
INSTITUTIONS, BUT THE COLLECTING POWER OF THE UNITED STATES WAS NEITHER
ABRIDGED NOR QUALIFIED.  FN9 

WE ARE TOLD, HOWEVER, THAT THE BROAD PURPOSES OF THE ACT WOULD BE
THWARTED IF WE FAILED TO ASSUME THAT CONGRESS INTENDED TO SURRENDER
THIS PRIORITY.  THE REASON ADVANCED IS THAT SUPPLIERS OF GOODS AND
SERVICES WOULD REFUSE TO EXTEND CREDIT TO THOSE DESIRING TO MAKE
PROPERTY IMPROVEMENTS IF THEY KNEW THAT IN THE EVENT OF INSOLVENCY
THEIR CLAIMS WOULD BE SUBORDINATED TO THOSE OF THE UNITED STATES.  THE
FATAL WEAKNESS OF THIS CONTENTION IS THAT THE FEDERAL HOUSING
ADMINISTRATION IMPOSES AN IRONCLAD REQUIREMENT THAT THE PROCEEDS OF
INSURED LOANS BE USED FOR NO PURPOSE OTHER THAN THE IMPROVEMENTS
DESCRIBED IN THE APPLICATION FOR THE LOAN.  FN10  INDEED, LENDING
INSTITUTIONS FREQUENTLY PAY THE PROCEEDS OF THE LOAN DIRECTLY TO THE
SUPPLIERS OF GOODS AND SERVICES RATHER THAN TO THE PROPERTY OWNER, AND
THE PRACTICE HAS MET WITH THE ENTHUSIASTIC APPROVAL OF THE
ADMINISTRATION.  FN11 

CONSEQUENTLY, THE ARGUMENT AGAINST THE APPLICATION OF SEC. 3466 IS
REDUCED TO THIS:  PRIVATE PERSONS IN GENERAL ARE RELUCTANT TO EXTEND
CREDIT WHEN THEY KNOW THAT IN THE EVENT OF THE BORROWER'S INSOLVENCY
THE CLAIMS OF THE UNITED STATES WILL RECEIVE PRIORITY, AND THIS
CIRCUMSTANCE IS PARTICULARLY UNDESIRABLE IN TIMES OF ECONOMIC STRESS. 
IN THE FIRST PLACE, WHATEVER MAY BE THE MERITS OF THE CONTENTION, IT
SHOULD BE ADDRESSED TO CONGRESS AND NOT TO THIS COURT.  IN THE SECOND
PLACE, THE ARGUMENT PROVES TOO MUCH.  IF IT IS SOUND AS APPLIED TO THIS
KIND OF A CLAIM OF THE UNITED STATES, IT IS EQUALLY SOUND AS APPLIED TO
ALL CLAIMS AS TO WHICH THE UNITED STATES ASSERTS PRIORITY UNDER SEC.
3466. 

NEITHER COOK COUNTY NATIONAL BANK V. UNITED STATES, 107 U.S. 445, NOR
UNITED STATES V. GUARANTY TRUST CO., 280 U.S. 478, REQUIRES A DIFFERENT
CONCLUSION.  IN THE FORMER CASE, THE UNITED STATES WAS DENIED ITS SEC.
3466 PRIORITY IN CONNECTION WITH A CLAIM AGAINST A NATIONAL BANK FOR
THE AMOUNT OF CERTAIN FUNDS OF THE UNITED STATES DEPOSITED WITH IT.
THE DECISION WAS BASED ON TWO GROUNDS.  FIRST, THE NATIONAL BANKING ACT
UNDERTOOK TO PROVIDE A COMPLETE SYSTEM FOR THE ESTABLISHMENT AND
GOVERNMENT OF BANKS, AND IT INCLUDED SPECIFIC PROVISIONS CONCERNING THE
DISTRIBUTION OF THE ASSETS OF INSOLVENT BANKS WHICH WERE PLAINLY
INCONSISTENT WITH THE GRANTING OF PRIORITY TO GENERAL CLAIMS OF THE
UNITED STATES.  SECOND, THE NATIONAL BANKING ACT EXPRESSLY AUTHORIZED
THE SECRETARY OF THE TREASURY TO REQUIRE NATIONAL BANKS ACCEPTING
DEPOSITS OF FEDERAL FUNDS TO GIVE SATISFACTORY SECURITY; IT WAS HELD TO
BE FAIRLY INFERABLE THAT CONGRESS INTENDED THE UNITED STATES TO LOOK TO
THIS PROVISION RATHER THAN TO SEC. 3466 FOR PROTECTION.    THE CLAIMS
WHICH WERE DENIED PRIORITY IN THE GUARANTY TRUST CASE AROSE UNDER TITLE
II OF THE TRANSPORTATION ACT OF 1920.  THAT ACT PROVIDED FOR THE
FUNDING OF DEBTS TO THE UNITED STATES WHICH THE RAILROADS HAD
CONTRACTED DURING THE PERIOD OF WARTIME CONTROL, AND ALSO PROVIDED FOR
NEW LOANS TO THE RAILROADS.  IN HOLDING SEC. 3466 INAPPLICABLE TO THE
COLLECTION OF THESE LOANS THE COURT EMPHASIZED THAT THE BASIC PURPOSE
OF THE ACT WAS TO PROMOTE THE GENERAL CREDIT STATUS OF THE RAILROADS,
THAT THE RAILROADS WERE REQUIRED TO FURNISH ADEQUATE SECURITY FOR THE
PAYMENT OF BOTH THE OLD AND NEW LOANS, AND THAT THE INTEREST RATE OF 6%
ON ONE CLASS OF LOANS WAS "MUCH GREATER THAN THAT WHICH ORDINARILY
ACCOMPANIES EVEN A BUSINESS LOAN CARRYING SUCH ASSURANCE OF REPAYMENT
AS WOULD HAVE RESULTED FROM AN APPLICATION OF THE PRIORITY RULE."  280
U.S. AT 486.  THESE FACTORS PERSUADED THE COURT THAT CONGRESS HAD
INTENDED TO EXCLUDE THESE LOANS FROM THE SCOPE OF SEC. 3466. 

IN THE INSTANT CASE, NONE OF THESE CIRCUMSTANCES IS PRESENT.  THE
NATIONAL HOUSING ACT CONTAINS NO REFERENCE TO THE LIQUIDATION OF
ESTATES OF INSOLVENT BORROWERS, AND CONSEQUENTLY NO DIRECT
INCONSISTENCY WITH SEC. 3466 IS POSSIBLE.  THE PURPOSE OF TITLE I WAS
NOT THE STRENGTHENING OF THE GENERAL CREDIT OF PROPERTY OWNERS, BUT THE
STIMULATION OF THE BUILDING TRADES BY AFFORDING ASSURANCES TO LENDING
INSTITUTIONS IN ORDER TO INDUCE THEM TO MAKE LOANS FOR PROPERTY
IMPROVEMENTS.  NO SECURITY WAS REQUIRED OF THE BORROWERS, AND THE
INTEREST CHARGE WAS LOW.  FN12 ONLY THE PLAINEST INCONSISTENCY WOULD
WARRANT OUR FINDING AN IMPLIED EXCEPTION TO THE OPERATION OF SO CLEAR A
COMMAND AS THAT OF SEC. 3466.  WE THINK SUCH INCONSISTENCY IS WHOLLY
WANTING HERE. 

THE CLAIM OF THE UNITED STATES BE FIRST SATISFIED.  REVERSED. 

FN1  MO. REV. STAT. (1929) SEC. 1168, SO FAR AS PERTINENT, PROVIDES:
"HEREAFTER WHEN THE PROPERTY OF ANY COMPANY, CORPORATION, FIRM OR
PERSON SHALL BE SEIZED UPON BY ANY PROCESS OF ANY COURT OF THIS STATE,
OR WHEN THEIR BUSINESS SHALL BE  ...  PUT INTO THE HANDS OF A RECEIVER
OR TRUSTEE, THEN IN ALL SUCH CASES THE DEBTS OWING TO LABORERS OR
SERVANTS, WHICH HAVE ACCRUED BY REASON OF THEIR LABOR OR EMPLOYMENT, TO
AN AMOUNT NOT EXCEEDING ONE HUNDRED DOLLARS TO EACH EMPLOYEE, FOR WORK
OR LABOR PERFORMED WITHIN SIX MONTHS NEXT PRECEDING THE SEIZURE OR
TRANSFER OF SUCH PROPERTY,  ...  SHALL BE FIRST PAID IN FULL; AND IF
THERE BE NOT SUFFICIENT TO PAY THEM IN FULL, THEN THE SAME SHALL BE
PAID TO THEM PRO RATA, AFTER PAYING THE COSTS." 

FN2  U.S. REV. STAT. SEC. 3466(U.S.C., TITLE 31, SEC. 191) PROVIDES:
"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." 

FN3  FIELD V. UNITED STATES, 9 PET. 182, 200; UNITED STATES V.
OKLAHOMA, 261 U.S. 253; BARNETT V. AMERICAN SURETY CO., 77 F.2D 225; IN
RE DICKSON'S ESTATE, 197 WASH. 145, 154-155, 84 P.2D 661.  CF. UNITED
STATES V. SUMMERLIN, 310 U.S. 414. 

FN4  SECTION 64A OF THE BANKRUPTCY ACT, SO FAR AS PERTINENT,
PROVIDES:  "THE DEBTS TO HAVE PRIORITY, IN ADVANCE OF THE PAYMENT OF
DIVIDENDS TO CREDITORS, AND TO BE PAID IN FULL OUT OF BANKRUPT ESTATES,
AND THE ORDER OF PAYMENT, SHALL BE (1)  ...  (COSTS OF PRESERVING THE
ESTATE, ETC.); (2) WAGES, NOT TO EXCEED $600 TO EACH CLAIMANT, WHICH
HAVE BEEN EARNED WITHIN THREE MONTHS BEFORE THE DATE OF THE
COMMENCEMENT OF THE PROCEEDING, DUE TO WORKMEN, SERVANTS, CLERKS, OR
TRAVELING OR CITY SALESMEN ON SALARY OR COMMISSION BASIS, WHOLE OR PART
TIME, WHETHER OR NOT SELLING EXCLUSIVELY FOR THE BANKRUPT; (3)  ...
(CERTAIN EXPENSES OF CREDITORS CONNECTED WITH THE LIQUIDATION OF THE
ESTATE); (4) TAXES LEGALLY DUE AND OWING BY THE BANKRUPT TO THE UNITED
STATES OR ANY STATE OR ANY SUBDIVISION THEREOF  ...  ; AND (5) DEBTS
OWING TO ANY PERSON, INCLUDING THE UNITED STATES, WHO BY THE LAWS OF
THE UNITED STATES IS ENTITLED TO PRIORITY  ...  " 

FN5  ACT OF 1800, C. 19, SEC. 62, 2 STAT. 19; ACT OF 1841, C. 9, SEC.
5, 5 STAT. 441; ACT OF 1867, C. 176, SEC. 28, 14 STAT. 517. 

FN6  SECTION 64 OF THE BANKRUPTCY ACT OF 1898(30 STAT. 544)
PROVIDED: 

"(A)  THE COURT SHALL ORDER THE TRUSTEE TO PAY ALL TAXES LEGALLY DUE
AND OWING BY THE BANKRUPT TO THE UNITED STATES, STATE, COUNTY,
DISTRICT, OR MUNICIPALITY IN ADVANCE OF THE PAYMENT OF DIVIDENDS TO
CREDITORS, AND UPON FILING THE RECEIPTS OF THE PROPER PUBLIC OFFICERS
FOR SUCH PAYMENT HE SHALL BE CREDITED WITH THE AMOUNT THEREOF  ... 

"(B)  THE DEBTS TO HAVE PRIORITY, EXCEPT AS HEREIN PROVIDED, AND TO
BE PAID IN FULL OUT OF BANKRUPT ESTATES, AND THE ORDER OF PAYMENT SHALL
BE (1) THE ACTUAL AND NECESSARY COST OF PRESERVING THE ESTATE
SUBSEQUENT TO FILING THE PETITION; (2) THE FILING FEES PAID BY
CREDITORS IN INVOLUNTARY CASES; (3)  ...  (THE COSTS OF
ADMINISTRATION); (4) WAGES DUE TO WORKMEN, CLERKS, OR SERVANTS WHICH
HAVE BEEN EARNED WITHIN THREE MONTHS BEFORE THE DATE OF THE
COMMENCEMENT OF PROCEEDINGS, NOT TO EXCEED THREE HUNDRED DOLLARS TO
EACH CLAIMANT; AND (5) DEBTS OWING TO ANY PERSON WHO BY THE LAWS OF THE
STATES OR THE UNITED STATES IS ENTITLED TO PRIORITY." 

FN7  A SIMILAR CONTENTION WITH RESPECT TO SEC. 57J OF THE BANKRUPTCY
ACT WAS REJECTED IN MATTER OF SIMPSON, INC., 258 APP. DIV. 148, 15
N.Y.S.2D 1021. 

FN8  48 STAT. 1246, C. 847, SEC. 2. 

FN9  THE PRIORITY GRANTED BY SEC. 3466 IS, OF COURSE, NO GUARANTY
THAT THE UNITED STATES WILL BE SAVED FROM LOSS.  IN THE INSTANT CASE,
FOR EXAMPLE, THE ASSETS AVAILABLE FOR DISTRIBUTION ARE SO SMALL THAT
THE UNITED STATES WILL LOSE HEAVILY EVEN IF ITS CLAIM IS FIRST
SATISFIED. 

FN10  "MODERNIZATION CREDIT PLAN," BULLETIN NO. 1(AUG.  10, 1934) PP.
15, 16-17; ID. (SEPT. 12, 1934 REVISION) P. 22; ID. (JULY 15, 1935,
REVISION) P. 19; ID. (JULY 20, 1936 REVISION) PP. 6-7; "PROPERTY
IMPROVEMENT LOANS UNDER TITLE I" (FEB. 4, 1938) PP. 4, 23; ID. (JULY 1,
1939 REVISION) P. 15; ID. (MARCH 15, 1940 REVISION) P. 10. 

FN11  "MODERNIZATION CREDIT PLAN," BULLETIN NO. 1(SEPT.  12, 1934
REVISION) P. 29; ID. (JULY 15, 1935 REVISION) P. 15; "PROPERTY
IMPROVEMENT LOANS UNDER TITLE I" (FEB. 4, 1938) P. 33; ID. (JULY 1,
1939 REVISION) P. 30; ID. (MARCH 15, 1940 REVISION) REGULATION NO.
VIII. 

FN12  NOT UNTIL 1939, FOUR YEARS AFTER THE NOTE IN THIS CASE WAS
EXECUTED, DID THE FEDERAL HOUSING ADMINISTRATION EVEN REQUIRE THE
LENDING INSTITUTIONS TO PAY PREMIUMS FOR THE INSURANCE OF TITLE I
LOANS.  53 STAT. 805, C. 175, SEC. 2.  THE INCOME FROM THESE PREMIUMS
WAS TO BE USED PRIMARILY TO MEET OPERATING EXPENSES UNDER TITLE I AND
SECONDARILY TO MEET LOSSES RESULTING FROM DEFAULTS.  IN HIS REPORT
DATED APRIL 1, 1941, THE ADMINISTRATOR ESTIMATED THAT FOR THE FISCAL
YEAR ENDING JUNE 30, 1941, THIS INCOME FROM PREMIUMS WOULD PROVE
SUFFICIENT TO REIMBURSE THE UNITED STATES FOR LESS THAN HALF ITS LOSSES
UNDER TITLE I, AND THAT $4,000,000 OF PUBLIC FUNDS WOULD BE REQUIRED TO
MEET THE BALANCE.  REPORT OF THE FEDERAL HOUSING ADMINISTRATION FOR THE
YEAR ENDING DEC. 31, 1940, P. 11. 

MR. JUSTICE REED, DISSENTING: 

THE PURPOSE AND PROVISIONS OF THE NATIONAL HOUSING ACT  FN1  LEAD ME
TO THE CONCLUSION THAT SEC. 3466 OF THE REVISED STATUTES IS
INAPPLICABLE TO THE CLAIM OF THE ADMINISTRATOR IN THIS CASE.  FN2 

A STATUTE IS NOT TO BE INTERPRETED BY ITS TEXT ALONE, AS THOUGH IT
WERE A SPECIMEN UNDER LABORATORY CONTROL.  IT TAKES MEANING FROM OTHER
ENACTMENTS FORMING THE WHOLE BODY OF LAW BEARING UPON ITS SUBJECT.  FN3
IF, LIKE SEC. 3466, IT HAS BEEN UPON THE BOOKS FOR YEARS, THE
PRECEDENTS INTERPRETING ITS MEANING MUST BE CONSIDERED IN CONNECTION
WITH IT, PARTICULARLY WHEN, AS HERE, NEW LEGISLATION IS PASSED WHICH
MAY BE INCONSISTENT WITH ITS APPLICATION.  FN4 

FROM PAST INTERPRETATION WE LEARN THAT THE TRADITIONAL FUNCTION OF
SEC. 3466 IS THE ASSURANCE OF THE PUBLIC REVENUE,  FN5  WHATEVER MAY BE
THE EXPENSE TO THE COMPETING CREDITORS.  THEIR INTERESTS ARE
SUBORDINATED TO THE GENERAL ADVANTAGE.  FN6  TITLE I OF THE NATIONAL
HOUSING ACT, HOWEVER, IS NOT A REVENUE MEASURE - IT WAS INTENDED TO
STIMULATE RECOVERY AND EMPLOYMENT IN THE CONSTRUCTION INDUSTRIES AND TO
ENABLE PROPERTY-OWNERS TO OBTAIN FUNDS FOR SORELY NEEDED REPAIRS BY
INSURING FINANCIAL INSTITUTIONS AGAINST LOSS ON LOANS FOR SUCH WORK. 
FN7  THIS WAS ACCOMPLISHED BY WHAT IS, IN EFFECT, A GUARANTEE THAT ALL
LOSSES ON REHABILITATION LOANS, UP TO A PREDETERMINED PERCENTAGE (20%
HERE) OF THE TOTAL MADE BY THE FINANCIAL INSTITUTION, WOULD BE BORNE BY
THE UNITED STATES, EITHER BY TAKING OVER LOANS IN DEFAULT OR PAYING THE
DEFICIT.  FN8  THAT LOSS CONGRESS INTENDED THE GOVERNMENT TO BEAR.  FN9
IN ESTIMATING THE LOSS, IT RELIED UPON THE EXPERIENCE OF PRIVATE
COMPANIES WHICH WERE UNAIDED BY ANY SUCH PRIORITY AS SEC. 3466.  FN10
LOANS COULD NOT BE MADE FOR A LONGER TERM THAN FIVE YEARS, AND MANY
WOULD BE FOR LESS.  STABLE ECONOMIC IMPROVEMENT WAS HARDLY TO BE
EXPECTED WITHIN THAT TIME, AND YET, MANY OF THOSE WHO BORROWED WOULD
DIE, OR DEFAULT, AND UNDERGO SOME SORT OF FINANCIAL LIQUIDATION.  THE
ENFORCEMENT OF SEC. 3466 UNDER THOSE CIRCUMSTANCES WOULD SHIFT THE LOSS
FROM THE GOVERNMENT TO COMPETING CREDITORS, THUS HAMPERING THE EFFORTS
OF PRIVATE BUSINESS AND CAPITAL TO ACHIEVE THAT ECONOMIC RECOVERY WHICH
WAS THE AIM OF THE LEGISLATION.  FN11 

NOTHING IN THE HEARINGS, THE DEBATES OR THE ACT SHOW DEFINITIVELY
THAT CONGRESS CONSIDERED THE APPLICATION OF SEC. 3466 TO GOVERNMENT
CLAIMS UNDER THE NATIONAL HOUSING ACT.  IF THE TWO ACTS ALONE WERE TO
BE APPRAISED, IT MIGHT WELL BE CONCLUDED THAT, AS THEY ARE NOT
NECESSARILY INCONSISTENT, BOTH SHOULD BE ENFORCED.  BUT THE
DETERMINATION OF CONGRESSIONAL PURPOSE IS NOT SO SIMPLE AS THAT.  UPON
THE ASSUMPTION THAT THE APPLICABILITY OF SEC. 3466 NEVER CAME TO THE
ATTENTION OF CONGRESS, WE MUST FIND LEGISLATIVE PURPOSE NOT FROM THE
LANGUAGE OF THE TWO ACTS ALONE BUT FROM GENERALIZATIONS AS TO THE
OBJECT OF THE NEW STATUTE AND FROM JUDICIAL INTERPRETATIONS OF THE
MEANING OF THE OLD.  TO REACH A SOUND CONCLUSION AS TO THE
APPLICABILITY OF THE PRIORITY STATUTE AND THE PURPOSE OF CONGRESS
DEDUCED MERELY FROM THE STATE OF THE LAW AT THE TIME OF THE ENACTMENT
OF THE HOUSING ACT, WE NEED TO WEIGH THE PRECEDENTS UNDER SEC. 3466
QUITE AS CAREFULLY AS THE ACTS THEMSELVES, IN ORDER TO DEVELOP THE
LEGAL SITUATION INTO WHICH THE HOUSING ACT WAS INJECTED.  WHEN THIS IS
DONE, IT IS APPARENT THAT, EACH TIME THIS COURT HAS CONSIDERED
LEGISLATIVE PURPOSE AS TO SEC. 3466 IN RELATION TO GOVERNMENT CLAIMS
UNDER PUBLIC FINANCIAL LEGISLATION AFFECTING CREDITORS COMPETING WITH
THE GOVERNMENT, IT HAS DETERMINED SEC. 3466 DID NOT APPLY.  FN12 

THE NATIONAL HOUSING ACT WAS "ONE OF THE LATEST OF A SERIES OF
ENACTMENTS, EXTENDING OVER MORE THAN A CENTURY, THROUGH WHICH THE
FEDERAL GOVERNMENT HAS RECOGNIZED AND FULFILLED ITS OBLIGATION TO
PROVIDE A NATIONAL SYSTEM OF FINANCIAL INSTITUTIONS.  ...  "  FN13
SIGNIFICANT THAT IN THE CASE OF COOK COUNTY NATIONAL BANK THE DEBTOR
BANK AGAINST WHICH PRIORITY WAS DENIED WAS IN THE FEDERAL FINANCIAL
SYSTEM, WHILE HERE THE DEBTOR IS A PRIVATE CORPORATION WHICH HAS
PARTICIPATED IN A FEDERAL FINANCING PLAN.  THE INTRUSION OF A NOVEL
PRIORITY, UNCERTAIN IN AMOUNT BECAUSE UNRECORDED, INTO THE INTRICATE
CREDIT SYSTEM OF THE NATION AT A TIME OF STRAIN, WOULD BE A DRAG ON
RECOVERY, RATHER THAN A STIMULUS.  SUPPLIERS OF GOODS OR SERVICES IN
ALL FIELDS OF CREDIT ACTIVITY WOULD BE MOVED TO CONSTRICT THEIR
ADVANCES TO A BORROWER KNOWN TO HAVE CREATED A SECRET BUT VALID LIEN
UPON HIS ASSETS SUPERIOR TO ALL GENERAL CREDITORS.  THE FULL REACH OF
THE IMPLICATION OF CREDIT DISLOCATION MAY BE READILY GAUGED BY THE FACT
THAT, AT THE END OF 1936, 1,326,102 SEPARATE REHABILITATION LOANS HAD
BEEN MADE UNDER TITLE I FOR AN AGGREGATE AMOUNT OF $500,220,642.  FN15
POSSIBLE PRIORITIES WILL NOW EXIST FOR EVERY OUTSTANDING DOLLAR. 

THE FACTS OF THIS CASE SHOW HOW GOVERNMENT AID TO A DEBTOR MAY BE A
SNARE FOR HIS OTHER CREDITORS IF THE PRIORITY STATUTE OPERATES IN THIS
CLASS OF CLAIMS.  ABOUT A DOZEN CLAIMANTS BECAME CREDITORS IN THE
AGGREGATE AMOUNT OF SOME NINE HUNDRED DOLLARS FOR LABOR.  SUCH LABOR
CLAIMS WERE ENTITLED TO THE PREFERENCE UNDER MISSOURI LAW COMMON TO
LABOR CLAIMS.  BUT FOR THE PRIORITY OF THE GOVERNMENT'S CLAIM, THEY
WOULD RECEIVE ALL OF THE REALIZATION FROM THE ASSETS - ABOUT TWO-THIRDS
OF THEIR CLAIMS.  BUT A MONTH BEFORE THE APPOINTMENT OF THE RECEIVER,
THE FEDERAL HOUSING ADMINISTRATION TOOK OVER FROM A BANK A NOTE OF
ABOUT $6000.  FROM A DEFERRED POSITION IN THE HANDS OF THE BANK, THIS
DEBT IS SAID TO HAVE STEPPED INTO A PREFERRED POSITION BY TRANSFER TO
THE GOVERNMENT AGENCY.  AS SUCH, IT ABSORBS ALL OF THE ASSETS, AND THE
LABORERS WHO TRUSTED THEIR EMPLOYER'S CREDIT GET NOTHING.  SUCH A
PREFERENCE OF CREDITORS, BROUGHT ABOUT BY THE DEBTOR, WOULD BE AN ACT
OF BANKRUPTCY. 

IN 1920, WHEN THE RAILROADS NEEDED FUNDS BUT LACKED CREDIT FOR
PRIVATE BORROWING, GOVERNMENT LOANS WERE AUTHORIZED BY CONGRESS, BASED
UPON SUCH PROSPECTIVE EARNING POWER AND SECURITY AS WOULD FURNISH
REASONABLE ASSURANCE OF REPAYMENT.  FN16  IN UNITED STATES V. GUARANTY
TRUST CO., 280 U.S. 478, WE HELD THAT THE REHABILITATING FUNCTIONS AND
THE SECURITY PROVISIONS OF THE TRANSPORTATION ACT OF 1920 WERE SO
INCONSISTENT WITH SEC. 3466 AS TO PRECLUDE ITS APPLICATION IN THE
RECEIVERSHIP OF A DEBTOR RAILROAD.  EVEN MORE INCONSISTENT
CONSIDERATIONS EXIST IN THIS CASE.  CONGRESS WAS CONFRONTED WITH
WIDESPREAD NEED OF REPAIRS ON PROPERTY OWNED BY PERSONS WITHOUT THE
CASH OR CREDIT TO SECURE THEM.  FN17  MOREOVER, NOT ONLY HOMEOWNERS
BUT, LIKE THE RAILROADS, HARD PRESSED BUSINESS ESTABLISHMENTS, SUCH AS
THE DISTILLERY IN THIS CASE, WERE TO BE ASSISTED IN SECURING
MODERNIZATION LOANS.  FN18  INSTEAD OF LENDING THESE PEOPLE FEDERAL
FUNDS, CONGRESS LENT THEM FEDERAL CREDIT ON WHICH TO BORROW PRIVATE
FUNDS, WITH THE EVIDENT PURPOSE OF KEEPING THE PROGRAM AS MUCH AS
POSSIBLE A MATTER OF PRIVATE ENTERPRISE HANDLED IN THE COURSE OF
PRIVATE AFFAIRS.  ASSURANCE OF REPAYMENT WAS RESTED NOT ON A
COMBINATION OF SECURITY AND EARNING POWER BUT DELIBERATELY UPON EARNING
POWER ALONE.  FN19  WHEREAS, WITH THE RAILROADS, INTEREST CORRESPONDING
TO THE RISK WAS CHARGED, NO PREMIUM WAS CHARGED FOR THE INSURANCE OF
LOANS UNDER TITLE I,  - WITH THE EXPECTATION THAT THE GOVERNMENT WOULD
PAY THE LOSS AS ITS CONTRIBUTION TO RECOVERY.  FN20  THE DECLARED
PURPOSE OF THE UNITED STATES TO ABSORB THE LOSSES OF THE LENDERS IS
CLEARLY INCONSISTENT WITH THE PRIORITY OVER OTHER CREDITORS GIVEN BY
SEC. 3466.  IT SEEMS BEYOND DOUBT, TO ME, THAT CONGRESS DID NOT EXPECT
A PRIORITY UNDER TITLE I WHICH THE GUARANTY TRUST CASE CERTAINLY DENIED
IT UNDER TITLE II RELATING TO INSURED MORTGAGES.  FN21 

EVEN IN THE MECHANICS OF ITS OPERATION, TITLE I REPUDIATED THE
BENEFITS OF SEC. 3466.  COLLECTION WAS LEFT TO THE FINANCIAL
INSTITUTION AFTER DEFAULT, SO LONG AS THERE WAS HOPE OF PARTIAL
LIQUIDATION.  FN22  THE LENDER, OF COURSE, HAD NO PRIORITY. 

THE JUDGMENT SHOULD BE AFFIRMED ON THE GROUND THAT NO PRIORITY EXISTS
BY VIRTUE OF SEC. 3466. 

FN1  ACT OF JUNE 27, 1934, C. 847, TIT. I, SEC. 2, 48 STAT. 1246, AS
AMENDED 49 STAT. 299, 49 STAT. 722, 49 STAT. 1187, 49 STAT. 1234.  THE
STATUTE AS THEREAFTER AMENDED SUBSEQUENTLY TO THE EVENTS OF THIS CASE
MAY BE FOUND AS 12 U.S.C. SEC. 1703(1940). 

FN2  PREVIOUS DECISIONS IN OTHER COURTS CONCEDEDLY ARE TO THE
CONTRARY.  IN RE LONG ISLAND SASH & DOOR CORP., 259 APP. DIV. 688, 20
N.Y.S.2D 573, AFF'D MEM. 284 N.Y. 713, 31 N.E.2D 48, CERT. DEN.  312
U.S. 696; IN RE DICKSON'S ESTATE, 197 WASH. 145, 84 P.2D 661.  ACCORD,
KORMAN V. FEDERAL HOUSING ADMINISTRATOR, 113 F.2D 743(APP.  D.C.);
WAGNER V. MCDONALD, 96 F.2D 273(C.C.A.8TH); IN RE WEIL, 39 F.SUPP. 
618(M.D. PA.); IN RE WILSON, 23 F.SUPP.  236(N.D. TEX.); CF. FEDERAL
RESERVE BANK OF DALLAS V. SMYLIE, 134 S.W.2D 838(TEX.  CIV.  APP.)(FARM
CREDIT ADMINISTRATION); SEE 52 HARV. L. REV. 320.  UNITED STATES V.
SUMMERLIN, 310 U.S. 414, HELD ONLY THAT THE CLAIM ASSIGNED TO THE
ADMINISTRATOR BECAME A CLAIM OF THE UNITED STATES NOT SUBJECT TO A
STATE STATUTE OF "NON-CLAIM."  IT DID NOT PASS UPON THE RIGHT TO
PRIORITY UNDER SEC. 3466 IN THE DECEDENT'S ESTATE.  COMPARE DUPONT DE
NEMOURS & CO. V. DAVIS, 264 U.S. 456, WHERE THE DIRECTOR GENERAL OF THE
RAILROADS WAS HELD FREE FROM LIMITATION, WITH MELLON V. MICHIGAN TRUST
CO., 271 U.S. 236, WHERE THE DIRECTOR GENERAL WAS DENIED PRIORITY UNDER
SEC. 3466.  UNITED STATES V. MARXEN, 307 U.S. 200, 203, EXPRESSLY DID
NOT DECIDE THE POINT. 

FN3  KEIFER & KEIFER V. R.F.C., 306 U.S. 381, 389. 

FN4  UNITED STATES V. MARXEN, 307 U.S. 200, 206; UNITED STATES V.
KNOTT, 298 U.S. 544, 547-48; MELLON V. MICHIGAN TRUST CO., 271 U.S.
236, 240. 

FN5  SPOKANE COUNTY V. UNITED STATES, 279 U.S. 80, 92; PRICE V.
UNITED STATES, 269 U.S. 492, 500; BRAMWELL V. U.S. FIDELITY CO., 269
U.S. 483, 487. 

FN6  UNITED STATES V. FISHER, 2 CRANCH 358, 389. 

FN7  MESSAGE OF THE PRESIDENT, MAY 14, 1934, 78 CONG. REC. 8739
40(SENATE), ID. AT 8773-74(HOUSE).  CONCERNING THE DOLDRUMS OF THE
CONSTRUCTION INDUSTRY, SEE 78 CONG. REC. 11194, 11198, 11210, 11211;
HEARINGS ON SEN. 3603, COMMITTEE ON BANKING AND CURRENCY, 73D CONG., 2D
SESS., MAY 16-24, 1934, PP. 166 FF.  CONCERNING THE NEED FOR REPAIRS,
SEE 78 CONG. REC. 11194, 11214; HEARINGS ON SEN. 3603, SUPRA, AT PP.
36, 48, 288, 290. 

FN8  REGULATION NO. 18 - MODERNIZATION CREDIT PLAN - TITLE I,
NATIONAL HOUSING ACT, PROVIDED: "THE FEDERAL HOUSING ADMINISTRATION
WILL REIMBURSE ANY INSURED INSTITUTION ON LOSSES UP TO A TOTAL
AGGREGATE AMOUNT EQUAL TO 20% OF THE TOTAL FACE AMOUNT OF ALL QUALIFIED
NOTES TAKEN OR CURRENT FACE VALUE OF NOTES PURCHASED BY THE FINANCIAL
INSTITUTION, DURING THE TIME THE INSURANCE CONTRACT IS IN FORCE, AND
HELD BY IT OR ON WHICH IT CONTINUES LIABLE.  ...  " MODERNIZATION
CREDIT PLAN, BULLETIN NO. 1, P. 30(REVISED REISSUE, DEC. 10, 1934). 

FN9  SENATOR BULKLEY, CHAIRMAN OF THE SUBCOMMITTEE (78 CONG. REC.
11974) STATED TO THE SENATE: "IT IS CONTEMPLATED THAT THERE WILL BE A
LOSS TO THE GOVERNMENT UNDER THIS TITLE, BUT THAT PROBABLY THE LOSS
WILL NOT BE VERY GREAT.  ...  THE REASON WE JUSTIFY THIS PROVISION IS
THAT IT WILL MAKE POSSIBLE A CONSIDERABLE EXPENDITURE OF MONEY ON
NEEDED REPAIRS AND RENOVATION AND THEREBY STIMULATE BUSINESS IN TRADES
WHICH VERY MUCH NEED STIMULATION AT THIS TIME."  78 CONG. REC. 11981,
73D CONG., 2D SESS. 

FN10  78 CONG. REC. 11195-11196, 11981, 11982, 73D CONG., 2D SESS.
SEE HEARINGS ON SEN. 3603, SUPRA, AT PP. 293-94. 

FN11  THESE LOANS WERE TO BE SO-CALLED "CHARACTER" LOANS, IN RELIANCE
ON THE CHARACTER AND STABLE EARNINGS OF THE BORROWER.  78 CONG. REC.
11194, 11195, 11981.  IT WAS EXPECTED THAT WHILE MANY PERSONS AT THE
TIME HAD NO STABLE INCOME, THE ACT WOULD TEMPORARILY PROMOTE NEW
EMPLOYMENT WHICH ONCE UNDER WAY WAS HOPED WOULD CONTINUE LONG ENOUGH OF
ITS OWN FORCE TO CULMINATE IN PERMANENT BUSINESS RECOVERY AND REPAYMENT
OF THE BORROWED MONEY.  HEARINGS ON SEN. 3603, SUPRA, AT PP. 46, 173. 

FN12  COOK COUNTY NAT. BANK V. UNITED STATES, 107 U.S. 445; UNITED
STATES V. GUARANTY TRUST CO., 280 U.S. 478; CF. SLOAN SHIPYARDS V. U.S.
FLEET CORP., 258 U.S. 549; MELLON V. MICHIGAN TRUST CO., 271 U.S. 236. 

FN13  VALIDITY OF CERTAIN PROVISIONS OF THE NATIONAL HOUSING ACT, 38
OPS.  ATTY.  GEN. 258, 262. 

FN14  COOK COUNTY NAT. BANK V. UNITED STATES, 107 U.S. 445. 

FN15  THIRD ANNUAL REPORT OF THE FEDERAL HOUSING ADMINISTRATION,
HOUSE DOC. NO. 48, 75TH CONG., 1ST SESS., P. 7. 

FN16  TRANSPORTATION ACT OF 1920, SEC. 210, 41 STAT. 468. 

FN17  78 CONG. REC. 11199, 11388, 11981, 73D CONG., 2D SESS.;
HEARINGS ON SEN. 3603, SUPRA, AT PP. 30, 172, 174, 179. 

FN18  THE LOAN LIMIT OF TITLE I WAS SOON INCREASED TO MEET BUSINESS
NEEDS.  AMENDMENT OF MAY 28, 1935, 49 STAT. 299. 

FN19  78 CONG. REC. 11194, 11195, 11981, 11982, 73D CONG., 2D SESS.;
HEARINGS ON SEN. 3603, SUPRA, AT PP. 37, 39, 293. 

FN20  SENATOR BULKLEY STATED:  "THE LENDER RECEIVES 20-PERCENT
INSURANCE AUTOMATICALLY AS AN INDUCEMENT TO MAKE LOANS OF THIS
PARTICULAR CHARACTER.  FRANKLY IT IS CONTEMPLATED THAT THE GOVERNMENT
WILL LOSE SOME MONEY."  78 CONG. REC. 11982, 73D CONG., 2D SESS.  SEE
ALSO 78 CONG. REC. 11195; HEARINGS ON SEN. 3603, SUPRA, AT PP. 34-35. 

FN21  MOREOVER, SINCE JULY 1, 1939, THERE IS A .75% INSURANCE CHARGE
UNDER TITLE I, SO THAT IN THE FUTURE, WHATEVER THE DECISION HERE, EVEN
TITLE I WOULD SEEM TO BE GOVERNED BY THE GUARANTY TRUST CASE.  24
C.F.R. SEC. 501.18(SUPP.  1939.) 

FN22  MODERNIZATION CREDIT PLAN, BULLETIN NO. 1, SUPRA, AT P. 8
STATES:  "IT IS TO THE INTEREST OF THE FINANCIAL INSTITUTION TO CARRY
THE COLLECTION PROCESS ON A DEFAULTED NOTE AS FAR AS THERE IS
REASONABLE PROSPECT OF ULTIMATE PAYMENT INASMUCH AS COMPLETE
REIMBURSEMENT FOR ANY EXPENSES INCURRED IS PROVIDED AS SPECIFIED
HEREINAFTER.  THIS POLICY WILL TEND TO CONSERVE THE INSURANCE RESERVE
OF 20% FOR POSSIBLE LATER LOSSES AND ALSO WILL MAINTAIN THE
UNDERSTANDING OF THE LOCAL COMMUNITY THAT THESE NOTES REQUIRE THE SAME
PROMPT HANDLING BY MAKERS AS ANY OTHER CREDIT OBLIGATION.  ...  IT IS
THE POLICY OF THE FEDERAL HOUSING ADMINISTRATION TO PERMIT FINANCIAL
INSTITUTIONS EVERY POSSIBLE LATITUDE IN MAKING COLLECTIONS ON
DELINQUENT ITEMS.  IT IS ONLY AFTER IT CLEARLY APPEARS THAT FURTHER
COLLECTION EFFORTS WILL BE FRUITLESS THAT THE FEDERAL HOUSING
ADMINISTRATION WILL INSIST THAT CLAIM BE MADE.  FINANCIAL INSTITUTIONS
ARE, THEREFORE, GIVEN A FULL YEAR AFTER DEFAULT ON THE NOTE TO EFFECT
COLLECTION.  ...  IF 10% OF THE AMOUNT DUE ON THE NOTE IS COLLECTED
WITHIN THE FIRST YEAR AFTER DEFAULT ON THE NOTE AND SO LONG THEREAFTER
AS 5% AT LEAST IS COLLECTED IN EACH SIX-MONTH PERIOD, THE FEDERAL
HOUSING ADMINISTRATION WILL NOT REQUIRE THAT CLAIM BE MADE, BUT WILL
PERMIT THE FINANCIAL INSTITUTION TO PROCEED WITH ITS COLLECTION
EFFORTS.  CLAIMS MAY INCLUDE:  (1) NET UNPAID PRINCIPAL; (2)
UNCOLLECTED EARNED INTEREST (AFTER MATURITY INTEREST IS NOT TO BE
CLAIMED AT A RATE EXCEEDING 6% PER ANNUM); (3) UNCOLLECTED 'LATE
CHARGES'; (4) UNCOLLECTED COURT COSTS, INCLUDING FEES PAID FOR ISSUING,
SERVING AND FILING SUMMONS; (5) ATTORNEY'S FEES NOT EXCEEDING 15% OF
THE AMOUNT COLLECTED ON THE DEFAULTED NOTE; (6) HANDLING FEE OF $5 FOR
EACH NOTE, IF JUDGMENT IS SECURED, PLUS 5% OF AMOUNT COLLECTED
SUBSEQUENT TO RETURN OF UNSATISFIED PROPERTY EXECUTION." 

MR. JUSTICE ROBERTS, MR. JUSTICE DOUGLAS AND MR. JUSTICE JACKSON
CONCUR IN THIS DISSENT. 
..END :






















DIST. OF COLUMBIA V. MURPHY, 314 U.S. 441 


NO. 58.  ARGUED NOVEMBER 17, 1941.  - DECIDED DECEMBER 15, 1941.  - 73
APP. D.C. 345, 347, 119 F.2D 449, 451, REVERSED. 


1.  ONE DOES NOT ACQUIRE A DOMICILE IN THE DISTRICT OF COLUMBIA,
WITHIN THE MEANING OF THE DISTRICT OF COLUMBIA INCOME TAX ACT, MERELY
BY COMING TO THE DISTRICT TO LIVE FOR AN INDEFINITE PERIOD WHILE IN THE
GOVERNMENT SERVICE.  P. 453. 

2.  THE ACT DOES NOT INTEND THAT ONE LIVING IN THE DISTRICT OF
COLUMBIA INDEFINITELY, WHILE IN THE GOVERNMENT SERVICE, SHALL BE HELD
DOMICILED THERE SIMPLY BECAUSE HE DOES NOT MAINTAIN A DOMESTIC
ESTABLISHMENT AT THE PLACE FROM WHICH HE CAME.  P. 454. 

3.  PERSONS ARE DOMICILED IN THE DISTRICT OF COLUMBIA, WITHIN THE
MEANING OF THE ACT, WHO LIVE THERE AND HAVE NO FIXED AND DEFINITE
INTENT TO RETURN TO THEIR FORMER DOMICILES AND MAKE THEIR HOMES THERE. 
P. 454. 

4.  THE PLACE WHERE A MAN LIVES IS, PRIMA FACIE, HIS DOMICILE.  P.
455. 

5.  THE TAXING AUTHORITY IS WARRANTED IN TREATING AS PRIMA FACIE
TAXABLE ANY PERSON QUARTERED IN THE DISTRICT OF COLUMBIA ON TAX DAY
WHOSE STATUS IT DEEMS DOUBTFUL.  P. 455. 

6.  IN APPLYING THIS ACT, THE TAXING AUTHORITY NEED NOT FIND THE
EXACT TIME WHEN THE ATTITUDE AND RELATIONSHIP OF PERSON TO PLACE WHICH
CONSTITUTE DOMICILE WERE FORMED.  IT IS ENOUGH THAT THEY WERE FORMED
BEFORE THE TAX DAY.  P. 455. 

7.  IF ONE HAS AT ANY TIME BECOME DOMICILED IN THE DISTRICT OF
COLUMBIA, IT IS HIS BURDEN TO ESTABLISH ANY CHANGE OF STATUS UPON WHICH
HE RELIES TO ESCAPE THE TAX.  P. 456. 

8.  IN ORDER TO RETAIN HIS FORMER DOMICILE, ONE WHO COMES TO THE
DISTRICT TO PERFORM GOVERNMENT SERVICE MUST ALWAYS HAVE A FIXED AND
DEFINITE INTENT TO RETURN AND TO TAKE UP HIS HOME THERE WHEN SEPARATED
FROM THE SERVICE.  A MERE SENTIMENTAL ATTACHMENT WILL NOT HOLD THE OLD
DOMICILE.  P. 456. 

9.  WHETHER OR NOT ONE VOTES WHERE HE CLAIMS DOMICILE IS HIGHLY
RELEVANT BUT NOT CONTROLLING.  P. 456. 

10.  OF GREAT SIGNIFICANCE TO THE QUESTION OF DOMICILE IN THE
DISTRICT OF COLUMBIA IS THE NATURE OF THE POSITION WHICH BRINGS ONE TO
OR KEEPS HIM IN THE SERVICE OF THE GOVERNMENT.  P. 457. 

11.  MANNER OF LIVING IN THE DISTRICT AND MANY OTHER CONSIDERATIONS
TOUCHING RELATIONSHIPS, SOCIAL CONNECTIONS AND ACTIVITIES OF THE PERSON
CONCERNED, ARE SUGGESTED IN THE OPINION AS AMONG THE CONSIDERATIONS
WHICH ARE RELEVANT TO A DETERMINATION OF THE QUESTION OF DOMICILE.  P.
457. 

DISTRICT OF COLUMBIA V. MURPHY.* 

*TOGETHER WITH NO. 59, DISTRICT OF COLUMBIA V. DEHART, ALSO ON WRIT
OF CERTIORARI, 313 U.S. 556, TO THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 313 U.S. 556, TO REVIEW JUDGMENTS SUSTAINING, ON
PETITIONS FOR REVIEW, DECISIONS OF THE BOARD OF TAX APPEALS FOR THE
DISTRICT OF COLUMBIA HOLDING THAT COLLECTIONS OF INCOME TAXES FROM TWO
INDIVIDUALS BY THE DISTRICT OF COLUMBIA WERE ERRONEOUS. 

RESPONDENTS CAME TO RESIDE IN THE DISTRICT IN 1914 AND 1935.  SINCE
THAT TIME THEY HAVE HAD NO OTHER HOMES OR DWELLING PLACES.  WHEN A
PERSON HAS ONLY ONE HOME, THAT IS HIS DOMICILE.  RESTATEMENT, CONFLICT
OF LAWS, C. 2, SEC. 12, P. 24; BEALE, CONFLICT OF LAWS, SEC. 19.2; 9
R.C.L. 538; TEXAS V. FLORIDA, 306 U.S. 398; JACOBS, LAW OF DOMICILE,
SEC. 70, P. 113, SEC. 72, P. 120; KENNAN ON RESIDENCE AND DOMICILE,
SEC. 16, P. 37; GOODRICH ON CONFLICT OF LAWS, SEC. 25. 

WHERE ONE LIVES IS PRIMA FACIE HIS DOMICILE, AND THE BURDEN OF
DISPROVING THIS IS ON HIM WHO DENIES IT.  ANDERSON V. WATT, 138 U.S.
694; ENNIS V. SMITH, 14 HOW.  400, 423; NEWMAN V. U.S. EX REL.
FRIZZELL, 43 APP. D.C. 53; BRADSTREET V. BRADSTREET, 18 D.C. REP. (7
MACKEY) 229; GALLAGHER V. GALLAGHER, 214 S.W. 516; DODD V. DODD, 15
S.W.2D 686; HARRISON V. HARRISON, 117 MD. 607; 9 R.C.L. 541, 557;
RESTATEMENT, CONFLICT OF LAWS, C. 2, SEC. 12, P. 24; STORY, CONFLICT OF
LAWS, 8TH ED., SEC. 46; KENNAN, SEC. 172, P. 327; DICEY, LAW OF
DOMICILE, P. 9. 

THE BOARD OF TAX APPEALS FOUND AS A FACT THAT RESPONDENTS INTENDED TO
REMAIN AND MAKE THEIR HOMES IN THE DISTRICT FOR AN INDEFINITE PERIOD. 
THE FINDINGS WERE ACCEPTED BY THE COURT OF APPEALS AND DOMICILE IN THE
DISTRICT FOLLOWS AS A MATTER OF LAW.  STORY, SEC. 46; GILBERT V. DAVID,
235 U.S. 561; MITCHELL V. UNITED STATES, 21 WALL.  350; ROSENBERG V.
COMMISSIONER, 59 APP. D.C. 178; NEWMAN V. U.S. EX REL. FRIZZELL, SUPRA;
RINGGOLD V. BARLEY, 5 MD. 186; KLUTTS V. JONES, 21 N.M. 720; FELKER V.
HENDERSON, 102 A. 623; BEALE, SEC. 19.1; KENNAN, SEC. 127, P. 257. 

THE INTENTION TO RETURN TO THE DOMICILE OF NATIVITY, OR ONE ACQUIRED,
MUST BE FIXED, ABSOLUTE, AND UNCONDITIONAL.  A MERE FLOATING INTENTION
TO RETURN AT SOME FUTURE PERIOD OR UPON THE HAPPENING OF SOME UNCERTAIN
EVENT IS NOT SUFFICIENT.  THE INTENT TO RETURN MUST NOT DEPEND UPON
INCLINATION OR BE CONTROLLED BY FUTURE EVENTS.  SPARKS V. SPARKS, 114
TENN. 666; STORY, CONFLICT OF LAWS, 8TH ED., SEC. 46; CF., BEALE,
CONFLICT OF LAWS, SEC. 18.1. 

THE INTENTION REQUIRED FOR THE ACQUISITION OF A DOMICILE OF CHOICE IS
AN INTENTION TO MAKE A HOME IN FACT, AND NOT AN INTENTION TO ACQUIRE A
DOMICILE.  RESTATEMENT, CONFLICT OF LAWS, C. 2, SEC. 19, P. 38.  SEE,
ALSO, MITCHELL V. UNITED STATES, 21 WALL.  350; TEXAS V. FLORIDA, 306
U.S. 398; FEEHAN V. TREFRY, 237 MASS. 169; BEALE, CONFLICT OF LAWS,
SEC. 19.2; DICKINSON V. INHABITANTS OF BROOKLINE, 181 MASS. 195.  SEE
JACOBS, SEC. 148, PP. 213-215. 

THE EXERCISE OF THE ELECTIVE FRANCHISE MAY BE OUTWEIGHED BY OTHER
CIRCUMSTANCES.  19 C.J. 436, 437; GADDIE V. MANN, 147 F. 955;
BRADSTREET V. BRADSTREET, SUPRA; IN RE SEDGWICK, 223 F. 655; IN RE
TROWBRIDGE'S ESTATE, 266 N.Y. 283; FEEHAN V. TREFRY, SUPRA; DICKINSON
V. INHABITANTS OF BROOKLINE, SUPRA; WAGNER V. SCURLOCK, 166 MD. 284;
KENNAN, SEC. 78, PP. 158-161; WHARTON, CONFLICT OF LAWS, SEC. 63. 

EXERCISE OF THE RIGHT OF SUFFRAGE IS OF MUCH GREATER WEIGHT IN THE
CASE OF REMOVAL FROM STATE TO STATE THAN IN THE CASE OF REMOVAL FROM A
STATE TO THE DISTRICT. 

THE DOMICILE OF AN EMPLOYEE OF THE FEDERAL GOVERNMENT FOR PURPOSES OF
TAXATION SHOULD BE DETERMINED BY THE RULES APPLICABLE TO PERSONS IN
PRIVATE EMPLOYMENT.  CF., SWEENEY V. DISTRICT OF COLUMBIA, 72 APP. D.C.
30, 310 U.S. 631. 

INDIVIDUALS ARE UNDER NO COMPULSION TO ACCEPT FEDERAL EMPLOYMENT OR
RESIDE IN THE DISTRICT OF COLUMBIA.  GOVERNMENT EMPLOYEES RESIDING IN
THE DISTRICT ARE NOT TAXABLE IN THEIR RESPECTIVE STATES OF FORMER
RESIDENCE UPON INCOME EARNED IN THE DISTRICT.  DOMICILE IN THE DISTRICT
IS NOT INCONSISTENT WITH POLITICAL STATUS IN ONE OF THE STATES.  MOST
GOVERNMENT EMPLOYEES REMAIN IN THE DISTRICT AFTER RETIREMENT. 

THE LEGISLATIVE HISTORY OF THE ACT REVEALS CONGRESSIONAL INTENT
CONSISTENT WITH THESE VIEWS. 

THE ACT WAS NOT INTENDED TO APPLY TO FEDERAL EMPLOYEES IN THE
DISTRICT UNLESS THEY HAD ABANDONED THEIR DOMICILES IN THE STATES. 

THE DOMICILE OF A FEDERAL EMPLOYEE IN THE DISTRICT IS NOT TO BE
DETERMINED BY THE RULES APPLICABLE TO PERSONS IN PRIVATE EMPLOYMENT. 
SWEENEY V. DISTRICT OF COLUMBIA, 72 APP. D.C. 30, CERT. DENIED, 310
U.S. 631. 

AN INDIVIDUAL MAY HAVE BUT ONE DOMICILE.  WILLIAMSON V. OSENTON, 232
U.S. 619, 625. 

THE RULE THAT THE FEDERAL EMPLOYEE IS ENTITLED TO RETAIN HIS STATE
DOMICILE (SWEENEY CASE, SUPRA) IS SUPPORTED BY THE CLEAR WEIGHT OF
JUDICIAL AUTHORITY, BY MANY INSTANCES OF CONGRESSIONAL RECOGNITION IN
PRINCIPLE, AND BY THE LONG-ESTABLISHED CUSTOM AND PRACTICE OF OTHER
OFFICIALS AND DEPARTMENTS.  SEE CITATIONS AND FOOTNOTES IN SWEENEY V.
DISTRICT OF COLUMBIA, 72 APP. D.C. 30, 37.  THE RULE IS OF ANCIENT
ORIGIN.  BRUCE V. BRUCE, 2 BOSANQUET & PULLER 229, AND ATHERTON V.
THORNTON, 8 N.H. 178. 

PRACTICALLY ALL STATES HAVE PROVISIONS, IN THEIR CONSTITUTIONS OR
LAWS, REQUIRING DOMICILE AS A CONDITION TO EXERCISE OF THE FRANCHISE,
AND PROVIDING THAT ABSENCE IN THE GOVERNMENT SERVICE DOES NOT PREVENT
LOSS OF "RESIDENCE." 

IF THIS COURT CONFIRMS THE COMMON-LAW DOCTRINE THAT DOMICILE IS
INDIVISIBLE, AND AT THE SAME TIME RULES THAT FEDERAL EMPLOYEES ARE
DOMICILED IN THE DISTRICT, IT WILL DEPRIVE FEDERAL EMPLOYEES OF THEIR
FRANCHISE IN THE STATES. 

THE DECISION OF THE COURT BELOW WAS EQUITABLE BECAUSE IT AVOIDED
DOUBLE TAXATION.  A REVERSAL OF IT WOULD DEPRIVE AT LEAST 24 STATES OF
THE RIGHT TO TAX FEDERAL EMPLOYEES IN THE DISTRICT DOMICILED IN THOSE
STATES, AND WOULD SUBJECT FEDERAL EMPLOYEES FROM THE STATES TO DOUBLE
TAXATION. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THESE CASES, WHICH HAVE BEEN ARGUED TOGETHER, DIFFER SOMEWHAT IN
FACTS, BUT EACH INVOLVES A CONTROVERSY AS TO WHETHER RESPONDENT WAS
DOMICILED WITHIN THE DISTRICT OF COLUMBIA ON DECEMBER 31, 1939, WITHIN
THE MEANING OF SEC. 2(A) OF THE DISTRICT OF COLUMBIA INCOME TAX ACT,
FN1  WHICH LAYS A TAX ON "THE TAXABLE INCOME OF EVERY INDIVIDUAL
DOMICILED IN THE DISTRICT OF COLUMBIA ON THE LAST DAY OF THE TAXABLE
YEAR."  THE FOLLOWING FACTS APPEAR FROM PROCEEDINGS BEFORE THE BOARD OF
TAX APPEALS FOR THE DISTRICT OF COLUMBIA: 

THE RESPONDENT IN NO. 58, A SINGLE MAN, FIRST CAME TO THE DISTRICT OF
COLUMBIA IN 1935 TO WORK AS AN ECONOMIST IN THE TREASURY DEPARTMENT,
AND WAS BLANKETED INTO CIVIL SERVICE IN THAT POSITION IN JULY, 1938. 
HE CAME HERE FROM DETROIT, MICHIGAN, AND HAS EVER SINCE CONTINUED TO BE
A REGISTERED VOTER AND HAS VOTED IN THE ELECTIONS AND PRIMARIES IN
WAYNE COUNTY, MICHIGAN.  HE WAS BORN IN NEW LONDON, CONNECTICUT, IN
1905, AND WHEN FIVE YEARS OLD MOVED WITH HIS PARENTS TO LOS ANGELES,
CALIFORNIA, WHERE HE RESIDED UNTIL 1926, WHEN HE REMOVED TO BERKELEY,
CALIFORNIA.  HIS PARENTS LIVE IN CALIFORNIA.  IN 1929 HE COMPLETED HIS
STUDIES AT BROWN UNIVERSITY AND IMMEDIATELY THEREAFTER ACCEPTED
EMPLOYMENT IN A TRUST COMPANY IN DETROIT, MICHIGAN, OF WHICH ONE OF HIS
FORMER PROFESSORS AT BROWN WAS VICE PRESIDENT.  WHILE IN DETROIT,
RESPONDENT LIVED FIRST IN A ROOMING HOUSE AND LATER IN AN APARTMENT. 
HE OWNS NO PROPERTY THERE.  IN THE DISTRICT OF COLUMBIA HE LIVES IN AN
APARTMENT, WHICH HE HAS FURNISHED HIMSELF.  HIS PRESENT EMPLOYMENT PAYS
HIM $6,500 A YEAR, WHILE THAT WHICH HE LEFT IN DETROIT PAID BUT
$6,000.  HE TESTIFIED BEFORE THE BOARD OF TAX APPEALS THAT HE DOES NOT
THINK HE WOULD IMPROVE HIS CONDITION BY RETURNING TO DETROIT, BUT THAT
"IT IS THE PLACE TO WHICH I WILL RETURN IF I EVER BECOME DISEMPLOYED BY
THE GOVERNMENT, WHICH I HOPE WILL NOT HAPPEN  ...  "  ALTHOUGH HE HAS
NO PRESENT CONNECTION WITH THE TRUST COMPANY, HE BELIEVES THAT HE COULD
GO BACK WITH IT IF HE SHOULD RETURN TO DETROIT.  IF A BETTER POSITION
THAN HE NOW HAS SHOULD BE OFFERED IN A CITY OTHER THAN DETROIT, HE
"VERY LIKELY WOULD" ACCEPT IT, DESPITE A "PREFERENCE FOR DETROIT" BASED
ON A BELIEF THAT HE "WOULD FIT IN MORE EASILY" THERE. 

RESPONDENT CLAIMED THAT DETROIT WAS HIS "LEGAL RESIDENCE" AND THAT HE
WAS NOT DOMICILED IN THE DISTRICT OF COLUMBIA.  THE BOARD OF TAX
APPEALS FOR THE DISTRICT OF COLUMBIA FOUND "AS A FACT" THAT WHEN HE
CAME TO WASHINGTON IN 1935 HE "HAD AN INTENTION TO REMAIN AND MAKE HIS
HOME IN THE DISTRICT OF COLUMBIA FOR AN INDEFINITE PERIOD OF TIME; AND
THAT SUCH INTENTION HAS EVER SINCE, AND STILL DOES REMAIN WITH HIM; AND
THAT IF HE HAS ANY INTENTION TO RETURN AND MAKE HIS HOME IN DETROIT, IT
IS A FLOATING INTENTION."  THE BOARD HELD, HOWEVER, "AS MATTER OF LAW,"
THAT ON DECEMBER 31, 1939, THE LAST DAY OF THE TAXABLE YEAR, PETITIONER
WAS NOT DOMICILED IN THE DISTRICT OF COLUMBIA, BELIEVING THAT IT WAS
COMPELLED TO DO SO BY THE DECISION OF THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA IN SWEENEY V. DISTRICT OF
COLUMBIA, 72 APP. D.C. 30, 113 F.2D 25, CERTIORARI DENIED, 310 U.S.
631. 

THE RESPONDENT IN NO. 59 LIVED IN THE DISTRICT OF COLUMBIA FOR TWENTY
SIX YEARS AFTER COMING HERE FROM PENNSYLVANIA IN 1914 TO ACCEPT A
CLERICAL POSITION OF INDEFINITE TENURE UNDER CIVIL SERVICE IN THE
PATENT OFFICE.  HE WAS THEN ON A YEAR'S LEAVE OF ABSENCE FROM A
RAILROAD BY WHICH HE WAS EMPLOYED, BUT CONTINUED IN THE CIVIL SERVICE
TO THE TIME OF HEARING, BECOMING CHIEF CLERK OF THE PERSONNEL AND
ORGANIZATION DIVISION OF THE NATIONAL GUARD BUREAU, WAR DEPARTMENT,
WITH OFFICES IN WASHINGTON.  SINGLE WHEN HE CAME, IN 1917 HE MARRIED A
NATIVE OF WASHINGTON, WHO DIED IN 1935 WITHOUT CHILDREN.  SHORTLY AFTER
THEIR MARRIAGE THE COUPLE PURCHASED AS A HOME, PREMISES AT 1426
MASSACHUSETTS AVENUE, S.E., IN THE DISTRICT OF COLUMBIA, IN WHICH
RESPONDENT STILL LIVES.  IN ABOUT 1925, HE PURCHASED A LOT AT "SELBY ON
THE BAY" IN NEARBY MARYLAND, AND BEFORE HIS WIFE'S DEATH HE BOUGHT A
BUILDING LOT IN THE DISTRICT OF COLUMBIA, ACTING ON HIS WIFE'S PLEAS
FOR A SUMMER PLACE AND A BETTER RESIDENCE.  HE AGREED WITH HIS WIFE
THAT, ON HIS RETIREMENT, SIX MONTHS WOULD BE SPENT AT SELBY.  HE
TESTIFIED THAT HE NEVER DESIRED TO PURCHASE THE LOT IN THE DISTRICT OF
COLUMBIA, BUT DID SO AT THE INSISTENCE OF HIS WIFE.  HE PUT A "FOR
SALE" SIGN ON IT WHEN SHE DIED, AND BOTH LOTS, WHICH HE STILL OWNS, ARE
UP FOR SALE.  HE HAS DEPOSITS IN THREE WASHINGTON FINANCIAL
INSTITUTIONS AND OWNS FIRST TRUST NOTES ON PROPERTY LOCATED IN MARYLAND
AND VIRGINIA. 

IN 1915, RESPONDENT BECAME A MEMBER OF A LUTHERAN CHURCH IN
WASHINGTON, AND HAS EVER SINCE BEEN AN ACTIVE MEMBER, AT ONE TIME
SERVING AS PRESIDENT OF ITS CHRISTIAN ENDEAVOR SOCIETY.  HE IS A
CONTRIBUTOR TO WASHINGTON CHARITIES, A MEMBER OF THE MOTOR CLUB OF
WASHINGTON, AND OF THE WASHINGTON UNITS OF "TALL CEDARS OF LEBANON" AND
THE "MYSTIC SHRINE," BOTH IDENTIFIED WITH FREEMASONRY.  HE HAS FILED
HIS FEDERAL INCOME-TAX RETURNS WITH THE COLLECTOR OF INTERNAL REVENUE
AT BALTIMORE, AND ALWAYS PAID TO THE DISTRICT OF COLUMBIA AN INTANGIBLE
PROPERTY TAX WHILE THAT TAX WAS IN EFFECT. 

RESPONDENT HAD RESIDED IN PENNSYLVANIA FROM BIRTH UNTIL HE LEFT FOR
WASHINGTON.  HE CLAIMED AS HIS "LEGAL RESIDENCE" THE RESIDENCE OF HIS
PARENTS IN HARRISBURG, WHERE THEY STILL KEEP INTACT HIS ROOM IN WHICH
ARE KEPT SOME OF HIS CLOTHES AND CHILDHOOD TOYS.  THOUGH PAYING NOTHING
AS RENT OR FOR LODGING, HE HAS FROM TIME TO TIME MADE PRESENTS OF MONEY
TO HIS PARENTS.  HE HAS VISITED HIS PARENTS' HOME IN HARRISBURG OVER
WEEK ENDS AT LEAST EIGHT TIMES A YEAR, AND HAS BEEN THERE ANNUALLY
BETWEEN CHRISTMAS AND THE NEW YEAR.  A REGISTERED VOTER IN
PENNSYLVANIA, HE HAS VOTED IN ALL ITS GENERAL ELECTIONS SINCE HE BECAME
OF AGE.  HE PAID THE PENNSYLVANIA POLL TAX UNTIL IT WAS SUPERSEDED BY
AN OCCUPATIONAL TAX, WHICH HE HAS ALSO PAID.  PAYMENT OF SUCH TAXES WAS
A PREREQUISITE TO VOTING. 

IN 1912, RESPONDENT BECAME A LIFE MEMBER OF THE ROBERT BURNS LODGE
NO. 464, FREE AND ACCEPTED MASONS, AND OF THE HARRISBURG CONSISTORY,
SCOTTISH RITE, BOTH MASONIC BODIES.  WHILE HE RESIDED IN HARRISBURG HE
WAS A MEMBER OF THE BIBLE CLASS OF THE PINE STREET PRESBYTERIAN CHURCH,
WHICH HE STILL ATTENDS ON VISITS THERE, AND TO WHICH HE MADE
SUBSTANTIAL CONTRIBUTIONS IN 1939.  HE OWNS JOINTLY WITH HIS FATHER A
NOTE SECURED BY A MORTGAGE ON PENNSYLVANIA REAL ESTATE.  RESPONDENT
TESTIFIED THAT HE EXPECTED TO RETIRE FROM CIVIL SERVICE IN FOUR YEARS
AND INTENDED THEN TO SELL HIS HOUSE AND "LEAVE WASHINGTON." 

THE BOARD FOUND "AS A FACT" THAT, AT THE END OF ONE YEAR AFTER HE
CAME TO THE DISTRICT IN 1914, RESPONDENT "HAD AN INTENTION TO REMAIN
AND MAKE HIS HOME IN THE DISTRICT OF COLUMBIA FOR AN INDEFINITE PERIOD
OF TIME AND THAT INTENTION REMAINED WITH HIM, AT LEAST UNTIL THE DEATH
OF HIS WIFE."  AS IN NO. 58, IT CONSIDERED ITSELF BOUND BY THE SWEENEY
CASE, SUPRA, AND ACCORDINGLY HELD "AS A MATTER OF LAW" THAT THE
PETITIONER WAS NOT DOMICILED IN THE DISTRICT ON DECEMBER 31, 1939, AND
NEVER HAD BEEN.    THE DECISIONS IN BOTH CASES WERE AFFIRMED ON REVIEW
BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.  73
APP. D.C. 345, 347, 119 F.2D 449, 451.  THE CASES WERE BROUGHT HERE ON
WRITS OF CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
INVOLVED.  313 U.S. 556. 

ALTHOUGH THE DISTRICT OF COLUMBIA INCOME TAX ACT MADE "DOMICILE" THE
FULCRUM OF THE INCOME TAX, THE FIRST EVER IMPOSED IN THE DISTRICT, IT
SET FORTH NO DEFINITION OF THAT WORD.  TO ASCERTAIN ITS MEANING WE
THEREFORE CONSIDER THE CONGRESSIONAL HISTORY OF THE ACT, THE SITUATION
WITH REFERENCE TO WHICH IT WAS ENACTED, AND THE EXISTING JUDICIAL
PRECEDENTS, WITH WHICH CONGRESS MAY BE TAKEN TO HAVE BEEN FAMILIAR IN
AT LEAST A GENERAL WAY.  UNITED STATES V. DICKERSON, 310 U.S. 554,
562. 

AS INTRODUCED INTO AND PASSED BY THE HOUSE OF REPRESENTATIVES, THE
BILL WHICH, WITH AMENDMENTS, BECAME THE ACT, LAID A TAX UPON INCOME OF
RESIDENTS FROM WHATEVER SOURCE DERIVED, AND UPON INCOME OF NONRESIDENTS
FROM SOURCES WITHIN THE DISTRICT, WITH A PROVISION FOR CREDIT FOR THE
PAYMENT OF INCOME TAXES ELSEWHERE.  H.R. 6577, 76TH CONG., 1ST SESS.,
SECS. 2(A), 4(A), 9(A), (B).  THE BILL WAS AMENDED ON THE FLOOR OF THE
HOUSE TO EXCEPT "SENATORS, REPRESENTATIVES, DELEGATES, RESIDENT
COMMISSIONERS, OFFICERS AND EMPLOYEES OF THE SENATE AND HOUSE OF
REPRESENTATIVES OF THE UNITED STATES."  84 CONG. REC. 7036.  IT WAS
UNACCEPTABLE TO THE SENATE IN THIS FORM, AND IT WAS AGREED IN
CONFERENCE THAT THE TAX SHOULD BE LEVIED UPON "EVERY INDIVIDUAL
DOMICILED IN THE DISTRICT OF COLUMBIA ON THE LAST DAY OF THE TAXABLE
YEAR," WITH NO PROVISION FOR CREDIT FOR INCOME TAXES PAID ELSEWHERE. 
H.R. REP. NOS. 1093, 1206, 76TH CONG., 1ST SESS., P. 3; SEN. DOC. NO.
92, 76TH CONG., 1ST SESS., P. 3.  THIS WAS AGREED TO BY THE SENATE AND
BY THE HOUSE OF REPRESENTATIVES, AND BECAME PART OF THE ACT UNDER
CONSIDERATION. 

THE CONFERENCE AGREEMENT WAS PRESENTED TO THE SENATE BY SENATOR
OVERTON, CHAIRMAN OF THE SENATE CONFEREES, WITH THE FOLLOWING
EXPLANATION:  "MR. PRESIDENT, I NOW CALL ATTENTION TO THE FACT THAT THE
INDIVIDUAL INCOME TAX IS IMPOSED ONLY ON THOSE DOMICILED IN THE
DISTRICT OF COLUMBIA.  IT, THEREFORE, NECESSARILY EXCLUDES FROM ITS
IMPOSITION ALL SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES,
THE PRESIDENT OF THE UNITED STATES, ALL CABINET OFFICERS, AND FEDERAL
EMPLOYEES WHO HAVE BEEN BROUGHT INTO THE DISTRICT FROM THE VARIOUS
STATES OF THE UNION TO SERVE THEIR COUNTRY IN THE NATIONAL CAPITAL,
PROVIDED SUCH EMPLOYEES HAVE NOT OF THEIR VOLITION SURRENDERED THEIR
DOMICILES IN THE STATES AND HAVE VOLUNTARILY ACQUIRED DOMICILES WITHIN
THE DISTRICT OF COLUMBIA."  84 CONG. REC. 8824.  SENATOR OVERTON ALSO
STATED:  "I TOOK THE POSITION BEFORE THE DISTRICT OF COLUMBIA COMMITTEE
AND IN CONFERENCE THAT I WOULD NOT SUPPORT ANY LEGISLATION WHICH WOULD
EXEMPT SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THEIR
OFFICIAL FORCE FROM AN INCOME TAX IN THE DISTRICT OF COLUMBIA BUT WOULD
IMPOSE IT ON ALL OTHERS.  I THEN TOOK THE POSITION IN CONFERENCE THAT
IF WE IMPOSED AN INCOME TAX ONLY ON THOSE DOMICILED WITHIN THE
DISTRICT, THEN WE WOULD BE IMPOSING IT ONLY ON THOSE WHO OF THEIR OWN
VOLITION HAD ABANDONED THEIR DOMICILES IN THE STATES OF THEIR ORIGIN
AND HAD ELECTED TO MAKE THEIR PERMANENT HOME OR DOMICILE HERE IN THE
DISTRICT OF COLUMBIA.  SUCH PERSONS, IT MAY BE JUSTLY CONTENDED, HAVE
NO CAUSE TO COMPLAIN AGAINST AN INCOME TAX THAT IS IMPOSED UPON THEM
ONLY BECAUSE THEY HAVE CHOSEN TO ESTABLISH WITHIN THE DISTRICT OF
COLUMBIA THEIR PERMANENT  FN2  PLACES OF ABODE AND TO ABANDON THEIR
DOMICILES WITHIN THE STATES."  84 CONG. REC. 8825. 

IN THE HOUSE, REPRESENTATIVE NICHOLS, CHAIRMAN OF THE HOUSE
CONFEREES, AND ALSO CHAIRMAN OF THE HOUSE DISTRICT COMMITTEE IN CHARGE
OF FISCAL AFFAIRS, SUBMITTED THE CONFERENCE REPORT AND STATED: "SINCE
THE QUESTION OF THE EFFECT OF THE WORD 'DOMICILE' IN THIS ACT HAS BEEN
RAISED, I THINK THE HOUSE WOULD PROBABLY LIKE TO HAVE THE LEGAL
DEFINITION READ:  'DOMICILE IS THE PLACE WHERE ONE HAS HIS TRUE, FIXED,
PERMANENT HOME AND PRINCIPAL ESTABLISHMENT AND TO WHICH, WHENEVER HE IS
ABSENT, HE HAS THE INTENTION OF RETURNING, AND WHERE HE EXERCISES HIS
POLITICAL RIGHTS.  FN3  ...  THERE MUST EXIST IN COMBINATION THE FACT
OF RESIDENCE AND ANIMUS MANENDI - ' WHICH MEANS RESIDENCE AND HIS
INTENTION TO RETURN; SO THAT UNDER THIS DEFINITION HE COULD CERTAINLY
LIVE IN THE DISTRICT OF COLUMBIA AND HAVE HIS LEGAL DOMICILE IN ANY
OTHER STATE IN THE UNITED STATES."  84 CONG. REC. 8974. 

REPRESENTATIVE BATES, ANOTHER OF THE HOUSE CONFEREES, STATED IN
RESPONSE TO A QUESTION REGARDING THE POSSIBILITY OF TRIPLE TAXATION,
"WE RAISED THAT PARTICULAR POINT (IN CONFERENCE) BECAUSE WE ARE MUCH
CONCERNED ABOUT HOW THOSE WHO COME FROM OUR STATES WOULD BE AFFECTED BY
THE INCOME-TAX PROVISIONS OF THE NEW LAW, AND IT WAS DISTINCTLY
UNDERSTOOD THAT IN THIS BILL THERE SHOULD BE NO TRIPLE TAXATION  ...  "
84 CONG. REC. 8973. 

THE UNUSUAL CHARACTER OF THE NATIONAL CAPITAL, MAKING THE INCOME TAX
A "VERY EXPLOSIVE AND CONTROVERSIAL ITEM,"  FN4  WAS VIVIDLY BEFORE THE
CONGRESS, AND MUST ALSO BE CONSIDERED IN CONSTRUING THE STATUTE
IMPOSING THE TAX. 

THE DISTRICT OF COLUMBIA IS AN EXCEPTIONAL COMMUNITY.  IT IS NOT A
LOCAL MUNICIPAL AUTHORITY, BUT WAS ESTABLISHED UNDER THE CONSTITUTION
AS THE SEAT OF THE NATIONAL GOVERNMENT.  THOSE IN GOVERNMENT SERVICE
HERE ARE NOT ENGAGED IN LOCAL ENTERPRISE, ALTHOUGH THEIR SERVICE MAY BE
LOCALIZED.  THEIR WORK IS THAT OF THE NATION, AND THEIR PAY COMES NOT
FROM LOCAL SOURCES BUT FROM THE WHOLE COUNTRY.  BECAUSE OF ITS
CHARACTER AS A FEDERAL CITY, THERE IS NO LOCAL POLITICAL CONSTITUENCY
WITH WHOSE ACTIVITIES THOSE LIVING IN IT MAY IDENTIFY THEMSELVES AS A
SYMBOL OF THEIR ACCEPTANCE OF A LOCAL DOMICILE. 

NOT ALL WHO FLOCK HERE ARE BIRDS OF A FEATHER.  SOME ENTER THE CIVIL
SERVICE, FINDING TENURE AND PAY THERE MORE SECURE THAN IN PRIVATE
ENTERPRISE.  POLITICAL TIES ARE OF NO CONSEQUENCE IN OBTAINING OR
MAINTAINING THEIR POSITIONS.  AT THE OTHER EXTREME ARE THOSE WHO HOLD
APPOINTIVE OFFICE AT THE PLEASURE OF THE APPOINTING OFFICER.  THESE
LATTER, AS WELL AS APPOINTIVE OFFICERS WITH DEFINITE BUT UNPROTECTED
TENURE, AND ALL ELECTIVE OFFICERS, USUALLY OWE THEIR PRESENCE HERE TO
THE INTIMATE AND INFLUENTIAL PART THEY HAVE PLAYED IN COMMUNITY LIFE IN
ONE OF THE STATES. 

RELATIVELY FEW PERSONS HERE IN ANY BRANCH OF THE GOVERNMENT SERVICE
CAN TRUTHFULLY AND ACCURATELY LAY CLAIM TO AN INTENTION TO SEVER
THEMSELVES FROM THE SERVICE ON ANY EXACT DATE.  PERSONS IN ALL BRANCHES
USUALLY DESIRE, QUITE NATURALLY AND PROPERLY, TO CONTINUE FAMILY LIFE
AND TO HAVE THE COMFORTS OF A DOMESTIC ESTABLISHMENT FOR WHATEVER MAY
BE THE TERM OF THEIR STAY HERE.  THIS IS TRUE OF MANY SENATORS AND
CONGRESSMEN, CITED BY SENATOR OVERTON AS TYPICAL OF THOSE WHOM THE
LIMITATION OF THE STATUTE TO PERSONS "DOMICILED" HERE "NECESSARILY
EXCLUDES." 

TURNING TO THE JUDICIAL PRECEDENTS FOR FURTHER GUIDANCE IN CONSTRUING
"DOMICILE" AS USED IN THE STATUTE, WE FIND IT GENERALLY RECOGNIZED THAT
ONE WHO COMES TO WASHINGTON TO ENTER THE GOVERNMENT SERVICE AND TO LIVE
HERE FOR ITS DURATION DOES NOT THEREBY ACQUIRE A NEW DOMICILE.  MORE
THAN A CENTURY AGO, JUSTICE PARKER OF NEW HAMPSHIRE OBSERVED THAT "IT
HAS GENERALLY BEEN CONSIDERED THAT PERSONS APPOINTED TO PUBLIC OFFICE
UNDER THE AUTHORITY OF THE UNITED STATES, AND TAKING UP THEIR RESIDENCE
IN WASHINGTON FOR THE PURPOSE OF EXECUTING THE DUTIES OF SUCH OFFICE,
DO NOT THEREBY, WHILE ENGAGED IN THE SERVICE OF THE GOVERNMENT, LOSE
THEIR DOMICILE IN THE PLACE WHERE THEY BEFORE RESIDED, UNLESS THEY
INTEND ON REMOVING THERE TO MAKE WASHINGTON THEIR PERMANENT  FN5
RESIDENCE."  SEE ATHERTON V. THORNTON, 8 N.H. 178, 180.  BY AND LARGE,
SUBSEQUENT CASES HAVE TAKEN A LIKE VIEW.  FN6  IT SHOULD ALSO BE
OBSERVED THAT A POLICY AGAINST LOSS OF DOMICILE BY SOJOURN IN
WASHINGTON IS EXPRESSED IN THE CONSTITUTIONS AND STATUTES OF MANY
STATES.  FN7  OF COURSE, NO INDIVIDUAL CASE, CONSTITUTION, OR STATUTE
IS CONTROLLING, BUT THE GENERAL TREND OF THESE AUTHORITIES IS A
SIGNIFICANT RECOGNITION THAT THE DISTINCTIVE CHARACTER OF WASHINGTON
HABITATION FOR FEDERAL SERVICE IS MEANINGFUL TO THOSE WHO ARE SERVED AS
WELL AS TO THOSE IN THE SERVICE. 

FROM THESE VARIOUS DATA ON CONGRESSIONAL INTENT, IT IS APPARENT THAT
THE PRESENT CASES ARE NOT GOVERNED BY THE TESTS USUALLY EMPLOYED IN
CASES WHERE THE ELEMENT OF FEDERAL SERVICE IN THE FEDERAL CITY IS NOT
PRESENT.  FN8  WE HOLD THAT A MAN DOES NOT ACQUIRE A DOMICILE IN THE
DISTRICT SIMPLY BY COMING HERE TO LIVE FOR AN INDEFINITE PERIOD OF TIME
WHILE IN THE GOVERNMENT SERVICE.  A CONTRARY DECISION WOULD DISREGARD
THE STATEMENTS MADE ON THE FLOOR OF CONGRESS AS TO THE MEANING OF THE
STATUTE, FAIL TO GIVE PROPER WEIGHT TO THE TREND OF JUDICIAL DECISIONS,
WITH WHICH CONGRESS SHOULD BE TAKEN TO HAVE BEEN COGNIZANT, AND RESULT
IN A WHOLESALE FINDING OF DOMICILE ON THE PART OF GOVERNMENT SERVANTS
QUITE OBVIOUSLY AT VARIANCE WITH CONGRESSIONAL POLICY.  FURTHER,
CONGRESS DID NOT INTEND THAT ONE LIVING HERE INDEFINITELY WHILE IN THE
GOVERNMENT SERVICE BE HELD DOMICILED HERE SIMPLY BECAUSE HE DOES NOT
MAINTAIN A DOMESTIC ESTABLISHMENT AT THE PLACE HE HAILS FROM.  SUCH A
RULE WOULD RESULT IN TAXING THOSE UNABLE TO MAINTAIN TWO
ESTABLISHMENTS, AND EXEMPTING THOSE ABLE TO MEET SUCH A BURDEN - THUS
REVERSING THE USUAL PHILOSOPHY OF INCOME TAX AS ONE BASED ON ABILITY TO
PAY. 

ON THE OTHER HAND, WE HOLD THAT PERSONS ARE DOMICILED HERE WHO LIVE
HERE AND HAVE NO FIXED AND DEFINITE INTENT TO RETURN AND MAKE THEIR
HOMES WHERE THEY WERE FORMERLY DOMICILED.  FN9  A DECISION THAT THE
STATUTE LAYS A TAX ONLY ON THOSE WITH AN AFFIRMATIVE INTENT TO REMAIN
HERE THE REST OF THEIR DAYS WOULD BE AT ODDS WITH THE PREVAILING
CONCEPT OF DOMICILE, AND WOULD GIVE THE STATUTE SCOPE FAR NARROWER THAN
CONGRESS MUST HAVE INTENDED. 

CASES FALLING CLEARLY WITHIN SUCH BROAD RULES ASIDE, THE QUESTION OF
DOMICILE IS A DIFFICULT ONE OF FACT TO BE SETTLED ONLY BY A REALISTIC
AND CONSCIENTIOUS REVIEW OF THE MANY RELEVANT (AND FREQUENTLY
CONFLICTING) INDICIA OF WHERE A MAN'S HOME  FN10  IS AND ACCORDING TO
THE ESTABLISHED MODES OF PROOF. 

THE PLACE WHERE A MAN LIVES IS PROPERLY TAKEN TO BE HIS DOMICILE
UNTIL FACTS ADDUCED ESTABLISH THE CONTRARY.  ENNIS V. SMITH, 14 HOW. 
400, 423; ANDERSON V. WATT, 138 U.S. 694, 706.  THE TAXING AUTHORITY IS
WARRANTED IN TREATING AS PRIMA FACIE TAXABLE ANY PERSON QUARTERED IN
THE DISTRICT ON TAX DAY WHOSE STATUS IT DEEMS DOUBTFUL.  IT IS NOT AN
UNREASONABLE BURDEN UPON THE INDIVIDUAL, WHO KNOWS BEST WHENCE HE CAME,
WHAT HE LEFT BEHIND, AND HIS OWN ATTITUDES, TO REQUIRE HIM TO ESTABLISH
DOMICILE ELSEWHERE IF HE IS TO ESCAPE THE TAX. 

TO HOLD TAXABLE ONE WHO CONTENDS THAT HE IS NOT DOMICILED HERE, THE
BOARD NEED NOT FIND THE EXACT TIME WHEN THE "ATTITUDE AND RELATIONSHIP
OF PERSON TO PLACE" WHICH CONSTITUTE DOMICILE, TEXAS V. FLORIDA, 306
U.S. 398, 411, WERE FORMED, SO LONG AS IT FINDS THEY WERE FORMED BEFORE
THE TAX DAY.  WHAT WAS AT FIRST A FIRM INTENT TO RETURN MAY HAVE
WITHERED GRADUALLY IN CONSEQUENCE OF DISSOLVING ASSOCIATIONS ELSEWHERE
AND GROWING INTERESTS IN THE DISTRICT.  IT IS COMMON EXPERIENCE THAT
THIS PROCESS USUALLY IS UNMARKED BY ANY DRAMATIC OR EVEN SHARPLY
DEFINED EPISODE.  THE TAXING AUTHORITY NEED NOT FIND JUST WHEN THE
INTENT WAS FINALLY DISSIPATED; IT IS ENOUGH THAT IT FINDS THAT THIS HAS
HAPPENED BEFORE THE TAX DAY. 

IF ONE HAS AT ANY TIME BECOME DOMICILED HERE, IT IS HIS BURDEN TO
ESTABLISH ANY CHANGE OF STATUS UPON WHICH HE RELIES TO ESCAPE THE TAX. 
ANDERSON V. WATT, SUPRA, AT P. 706. 

IN ORDER TO RETAIN HIS FORMER DOMICILE, ONE WHO COMES TO THE DISTRICT
TO ENTER GOVERNMENT SERVICE MUST ALWAYS HAVE A FIXED AND DEFINITE
INTENT TO RETURN AND TAKE UP HIS HOME THERE WHEN SEPARATED FROM THE
SERVICE.  A MERE SENTIMENTAL ATTACHMENT WILL NOT HOLD THE OLD
DOMICILE.  AND RESIDENCE IN THE DISTRICT WITH A NEARLY EQUAL READINESS
TO GO BACK WHERE ONE CAME FROM, OR TO ANY OTHER COMMUNITY OFFERING
ADVANTAGES UPON THE TERMINATION OF SERVICE, IS NOT ENOUGH. 

ONE'S TESTIMONY WITH REGARD TO HIS INTENTION IS, OF COURSE, TO BE
GIVEN FULL AND FAIR CONSIDERATION, BUT IS SUBJECT TO THE INFIRMITY OF
ANY SELF-SERVING DECLARATION, AND MAY FREQUENTLY LACK PERSUASIVENESS OR
EVEN BE CONTRADICTED OR NEGATIVED BY OTHER DECLARATIONS AND
INCONSISTENT ACTS. 

WHETHER OR NOT ONE VOTES WHERE HE CLAIMS DOMICILE IS HIGHLY RELEVANT
BUT BY NO MEANS CONTROLLING.  FN11  EACH STATE PRESCRIBES FOR ITSELF
THE QUALIFICATIONS OF ITS VOTERS, AND EACH HAS ITS OWN MACHINERY FOR
DETERMINING COMPLIANCE WITH SUCH QUALIFICATIONS.  A VOTE CAST WITHOUT
CHALLENGE AND ADJUDICATION MAY INDICATE ONLY LAXITY OF THE STATE
OFFICIALS, AND EVEN AN ADJUDICATION OF THE RIGHT TO VOTE CANNOT
PRECLUDE THE LEVY OF A TAX BY AN ARM OF THE FEDERAL GOVERNMENT.  ON THE
OTHER HAND, FAILURE TO VOTE ELSEWHERE IS, OF COURSE, NOT CONCLUSIVE
THAT DOMICILE IS HERE. 

ALSO OF GREAT SIGNIFICANCE IS THE NATURE OF THE POSITION WHICH BRINGS
ONE TO OR KEEPS HIM IN THE SERVICE OF THE GOVERNMENT:  WHETHER
CONTINUOUS OR EMERGENCY, SPECIAL OR WAR-TIME IN CHARACTER; WHETHER
REQUIRING FIXED RESIDENCE IN THE DISTRICT OR ONLY INTERMITTENT STAYS;
WHETHER ENTAILING MONETARY SACRIFICES OR BETTERMENT; AND WHETHER
POLITICAL OR NON-POLITICAL.  THOSE DEPENDENT UPON THE ACTION OF A LOCAL
CONSTITUENCY ON THE FIRST TUESDAY AFTER THE FIRST MONDAY IN NOVEMBER
ARE, OF COURSE, LOATH TO LEAVE THEIR LOCAL IDENTIFICATIONS BEHIND WHEN
TAKING UP GOVERNMENT DUTIES IN WASHINGTON. 

OF COURSE, THE MANNER OF LIVING HERE, TAKEN IN CONNECTION WITH ONE'S
STATION IN LIFE, IS RELEVANT.  DID HE HIRE A FURNISHED ROOM OR
ESTABLISH HIMSELF BY THE PURCHASE OF A HOUSE?  OR DID HE RENT A HOUSE
OR APARTMENT?  HAS HE BROUGHT HIS FAMILY AND DEPENDENTS HERE?  HAS HE
BROUGHT HIS GOODS?  WHAT RELATIONS HAS HE TO CHURCHES, CLUBS, LODGES,
AND INVESTMENTS THAT IDENTIFY HIM WITH THE DISTRICT?    ALL FACTS WHICH
GO TO SHOW THE RELATIONS RETAINED TO ONE'S FORMER PLACE OF ABODE ARE
RELEVANT IN DETERMINING DOMICILE.  WHAT BRIDGES HAVE BEEN KEPT AND WHAT
HAVE BEEN BURNED?  DOES HE RETAIN A PLACE OF ABODE THERE, OR IS THERE A
FAMILY HOME WITH WHICH HE RETAINS IDENTITY?  DOES HE HAVE INVESTMENTS
IN LOCAL PROPERTY OR ENTERPRISE WHICH ATTACH HIM TO THE COMMUNITY? 
WHAT ARE HIS AFFILIATIONS WITH THE PROFESSIONAL, RELIGIOUS, AND
FRATERNAL LIFE OF THE COMMUNITY, AND WHAT OTHER ASSOCIATIONS DOES HE
CLING TO?  HOW PERMANENT WAS HIS DOMICILE IN THE COMMUNITY FROM WHICH
HE CAME?  HAD IT LONG BEEN A FAMILY SEAT, OR WAS HE THERE A BIRD OF
PASSAGE?  WOULD A RETURN TO THE OLD COMMUNITY PICK UP THREADS OF CLOSE
ASSOCIATION?  OR HAS HE SO SEVERED HIS RELATIONS THAT HIS OLD COMMUNITY
IS AS STRANGE AS ANOTHER?  DID HE PAY TAXES IN THE OLD COMMUNITY
BECAUSE OF HIS RETENTION OF DOMICILE WHICH HE COULD HAVE AVOIDED BY
GIVING IT UP?  WERE THEY NOMINAL OR SUBSTANTIAL?  IN VIEW OF THE
LEGISLATIVE HISTORY SHOWING THAT CONGRESS WAS CONCERNED LEST THERE BE
"TRIPLE TAXATION" - FEDERAL, STATE AND DISTRICT - THE BOARD SHOULD
CONSIDER WHETHER TAXES SIMILAR IN CHARACTER TO THOSE LAID BY THIS ACT
HAVE BEEN PAID ELSEWHERE.  SEE STATEMENT OF REPRESENTATIVE BATES,
QUOTED SUPRA, P. 451. 

OUR MENTION OF THESE CONSIDERATIONS AS BEING RELEVANT MUST NOT BE
TAKEN AS AN INDICATION OF THE RELATIVE WEIGHTS TO BE ATTACHED TO THEM,
AS AN IMPLIED NEGATION OF THE RELEVANCE OF OTHERS, OR AS AN EFFORT TO
SUGGEST A FORMULA TO HANDLE ALL CASES THAT MAY ARISE, OR THE
POSSIBILITY OF DEVISING ONE. 

IN VIEW OF WHAT WE HAVE SAID, IT IS CLEAR THAT THE PRESENT CASES DID
NOT CALL FOR RULINGS OF NON-TAXABILITY "AS A MATTER OF LAW."  ON THE
OTHER HAND, WE DO NOT CONSIDER WHETHER TAXABILITY FOLLOWS AS A MATTER
OF LAW, AS PETITIONER CONTENDS IT DOES, FOR THE FACTUAL INQUIRIES AND
FINDINGS OF THE BOARD, MADE UNDER A VIEW OF THE LAW NOT OUR OWN, ARE
QUITE LIKELY NOT IN ALL RESPECTS THOSE WHICH THE BOARD WOULD HAVE MADE
HAD IT PROCEEDED WITH KNOWLEDGE OF OUR OPINION, AND ARE IN SOME
RESPECTS AMBIGUOUS FOR THE PURPOSE OF DECISION IN ACCORDANCE WITH IT.
ACCORDINGLY, WE REVERSE THE DECISIONS BY THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA AND REMAND THESE CASES TO THAT
COURT WITH DIRECTIONS TO REMAND TO THE BOARD FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  53 STAT. 1087; 20 D.C. CODE (SUPP. V, 1939) SEC. 980(A). 

FN2  WE DO NOT UNDERSTAND "PERMANENT" TO HAVE BEEN USED IN A LITERAL
SENSE.  OF COURSE IT CANNOT BE KNOWN WITHOUT THE GIFT OF PROPHECY
WHETHER A GIVEN ABODE IS "PERMANENT" IN THE STRICTEST SENSE.  BUT
BEYOND THIS, IT IS FREQUENTLY USED IN THE AUTHORITIES ON DOMICILE TO
DESCRIBE THAT WHICH IS NOT MERELY "TEMPORARY," OR TO DESCRIBE A
DWELLING FOR THE TIME BEING WHICH THERE IS NO PRESENTLY EXISTING INTENT
TO GIVE UP.  AND FURTHER, COMPARE A STATEMENT BY REPRESENTATIVE DIRKSEN
ON THE FLOOR OF THE HOUSE, 84 CONG. REC. 8973. 

FN3  EXERCISE OF POLITICAL RIGHTS ELSEWHERE CANNOT BE CONSIDERED AS
MEANT TO BE CONCLUSIVE ON THE ISSUE OF TAXABILITY IN THE DISTRICT.  SEE
STATEMENT BY REPRESENTATIVE DIRKSEN ON THE FLOOR OF THE HOUSE.  IBID. 

FN4  84 CONG. REC. 8972. 

FN5  SEE NOTE 2, SUPRA. 

FN6  WALDEN V. CANFIELD, 2 ROB.  (LA.)  466; LESH V. LESH, 13 PA.
DIST. CT. 537; SEE WOODWORTH V. ST. PAUL, M. & M. RY. CO., 18 F. 282,
284; COMMONWEALTH V. JONES, 12 PA. ST. 365, 371; CF. NEWMAN V. UNITED
STATES, 43 APP. D.C. 53, 70; REVERSED ON ANOTHER GROUND, 238 U.S. 537;
DEMING V. UNITED STATES, 59 APP. D.C. 188, 37 F.2D 818; CAMPBELL V.
RAMSEY, 150 KAN. 368, 388, 92 P.2D 819; HANNON V. GRIZZARD, 89 N.C.
129.  BUT CF. BRADSTREET V. BRADSTREET, 18 D.C. 229, 7 MACKEY 229;
SPARKS V. SPARKS, 114 TENN. 666, 88 S.W. 173. 

PROFESSOR BEALE HAS SUMMARIZED THE CASES AS FOLLOWS:  "PRESENCE FOR
THE PURPOSE OF PERFORMING THE DUTIES OF A CIVIL OFFICE WILL NOT OF
ITSELF EFFECT A CHANGE OF DOMICIL; THERE IS NO INFERENCE OF ANIMUS
MANENDI FROM THE FACT OF THE NEW RESIDENCE, SINCE IT IS EXPLAINED BY
THE FACT OF OFFICE HOLDING.  IT MAKES NO DIFFERENCE WHETHER THE OFFICE
IS ELECTIVE OR APPOINTIVE; NOR IS IT MATERIAL WHETHER THE APPOINTMENT
IS IN ITS NATURE MERELY TEMPORARY OR HAS A DEGREE OF PERMANENCE, THOUGH
THE PERMANENCE OF THE APPOINTMENT IS AN ELEMENT TO BE CONSIDERED IN
DETERMINING THE DOMICIL."  1 BEALE, CONFLICT OF LAWS SEC. 22.6.  SEE
ALSO, RESTATEMENT, CONFLICT OF LAWS, PP. 42-43. 

FN7  1 BEALE, CONFLICT OF LAWS, P. 172, NOTE 2. 

FN8  CF. WILLIAMSON V. OSENTON, 232 U.S. 619, 624; GILBERT V. DAVID,
235 U.S. 561. 

FN9  THIS IS NOT INCONSISTENT WITH OUR HOLDING THAT DOMICILE HERE
DOES NOT FOLLOW FROM MERE INDEFINITENESS OF THE PERIOD OF ONE'S STAY. 
WHILE THE INTENTION TO RETURN MUST BE FIXED, THE DATE NEED NOT BE;
WHILE THE INTENTION TO RETURN MUST BE UNCONDITIONAL, THE TIME MAY BE,
AND IN MOST CASES OF NECESSITY IS, CONTINGENT.  THE INTENTION MUST NOT
WAVER BEFORE THE UNCERTAINTIES OF TIME, BUT ONE MAY NOT BE VISITED WITH
UNWELCOME DOMICILE FOR LACKING THE GIFT OF PROPHECY. 

FN10  OF COURSE, THIS TERM DOES NOT HAVE THE MAGIC QUALITIES OF A
DIVINING ROD IN LOCATING DOMICILE.  IN FACT, THE SEARCH FOR THE
DOMICILE OF ANY PERSON CAPABLE OF ACQUIRING A DOMICILE OF CHOICE IS BUT
A SEARCH FOR HIS "HOME."  SEE BEALE, SOCIAL JUSTICE AND BUSINESS COSTS,
49 HARV. L. REV. 593, 596; 1 BEALE, CONFLICT OF LAWS, SEC. 19.1. 

FN11 SEE STATEMENTS OF REPRESENTATIVE DIRKSEN, 84 CONG. REC. 8973. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, AND MR. JUSTICE REED TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THESE CASES. 
..END :




















UNITED STATES V. KALES, 314 U.S. 186 


NO. 35.  ARGUED NOVEMBER 14, 1941.  - DECIDED DECEMBER 8, 1941.  - 115
F.2D 497, AFFIRMED. 


1.  A TAXPAYER WHO HAD PAID A 1919 INCOME TAX ON THE PROFITS OF A SALE
OF STOCK COMPUTED ON THE BASIS OF A MARCH 1, 1913, VALUATION OF THE
STOCK SOLD, AND WHO LATER HAD BEEN SUBJECTED BY THE COMMISSIONER OF
INTERNAL REVENUE TO A JEOPARDY ASSESSMENT FOR AN ADDITIONAL TAX ON THE
PROFITS OF THE SAME TRANSACTION COMPUTED UPON A LOWER 1913 VALUATION,
PAID THE ADDITIONAL TAX AND ACCOMPANIED THE PAYMENT WITH A LETTER
PROTESTING AGAINST IT UPON THE GROUND THAT THE COMMISSIONER HAD NO
AUTHORITY TO REOPEN AND SET ASIDE THE 1913 VALUATION AS MADE BY HIS
PREDECESSOR, BUT ALSO ASSERTING THAT THE FIRST 1913 VALUATION WAS
ITSELF TOO LOW, AND THAT IF IT WERE TO BE SET ASIDE BY ADMINISTRATIVE
ACTION, OR IN THE COURTS, THE TAXPAYER WOULD INSIST THAT THE EARLIER
TAX WAS THEREFORE EXCESSIVE AND WOULD CLAIM A REFUND OF THE EXCESS
PAID.  HELD, THAT THE LETTER SUFFICED AS A CLAIM TO STAY THE RUNNING OF
THE STATUTE OF LIMITATIONS ON THE TAXPAYER'S RIGHT TO A REFUND OF AN
EXCESS IN THE EARLIER TAX.  P. 193. 

2. A NOTICE FAIRLY ADVISING THE COMMISSIONER OF THE NATURE OF THE
TAXPAYER'S CLAIM, WHICH THE COMMISSIONER COULD REJECT BECAUSE TOO
GENERAL OR BECAUSE IT DOES NOT COMPLY WITH FORMAL REQUIREMENTS OF THE
STATUTE AND REGULATIONS, WILL NEVERTHELESS BE TREATED AS A CLAIM WHERE
FORMAL DEFECTS AND LACK OF SPECIFICITY HAVE BEEN REMEDIED BY AMENDMENT
FILED AFTER THE LAPSE OF THE STATUTORY PERIOD.  THIS IS ESPECIALLY THE
CASE WHERE SUCH A CLAIM HAS NOT MISLED THE COMMISSIONER AND HE HAS
ACCEPTED AND TREATED IT AS SUCH.  P. 194. 

3.  TREATMENT BY THE TAXING AUTHORITIES OF THE INFORMAL CLAIM AND ITS
LATER AMENDMENT AS A CLAIM FOR REFUND OPERATED AS A WAIVER OF
REGULATIONS PRESCRIBING THE FORMALITY AND PARTICULARITY WITH WHICH
GROUNDS FOR A REFUND ARE REQUIRED TO BE STATED.  P. 196. 

4.  A JUDGMENT AGAINST A COLLECTOR OF INTERNAL REVENUE REFUNDING 1919
INCOME TAXES COLLECTED BY HIM IN 1925 DOES NOT BAR A LATER SUIT AGAINST
THE UNITED STATES TO RECOVER AN EXCESS OF TAX ON INCOME FOR THE SAME
YEAR, PAID TO A DIFFERENT COLLECTOR IN 1920.  P. 197. 

UNITED STATES V. KALES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 313 U.S. 553, TO REVIEW A JUDGMENT REVERSING A DISMISSAL
BY THE DISTRICT COURT OF A SUIT AGAINST THE UNITED STATES FOR REFUND OF
OVERPAID 1919 INCOME TAXES.  THE COLLECTOR TO WHOM THE PAYMENT WAS MADE
HAD RETIRED FROM OFFICE AND HAD DIED BEFORE THE SUIT WAS BEGUN. 

THE 1925 LETTER WAS NOT A CLAIM FOR REFUND, BUT EVEN IF IT WERE IT
WAS MERGED WITH AND EXTINGUISHED BY THE JUDGMENT IN THE PRIOR
LITIGATION.  WOODWORTH V. KALES, 26 F.2D 178.  SEE ALSO BURNET V.
PORTER, 283 U.S. 230; COMMISSIONER V. NEWPORT INDUSTRIES, 121 F.2D 655,
657. 

INCOME-TAX LIABILITY FOR ANY ONE YEAR CONSTITUTES A SINGLE CAUSE OF
ACTION.  LEWIS V. REYNOLDS, 284 U.S. 281.  A JUDGMENT IN A FORMER SUIT
FOR REFUND IS A BAR TO A SUBSEQUENT SUIT FOR REFUND OF TAXES FOR THE
SAME YEAR, NOTWITHSTANDING THE FACT THAT THE GROUND FOR RECOVERY URGED
IN THE SECOND SUIT HAD NOT BEEN PRESENTED IN THE FIRST.  CHICAGO
JUNCTION RYS.  V. UNITED STATES, 10 F.SUPP.  156; BOWE-BURKE MINING CO.
V. WILLCUTS, 45 F.2D 394; WESTERN MARYLAND RY. CO. V. UNITED STATES, 23
F.SUPP.  554; BERTELSEN V. WHITE, 58 F.2D 792, AFF'D 65 F.2D 719;
AMERICAN WOOLEN CO. V. UNITED STATES, 18 F.SUPP.  783, 21 ID. 125,
CERT. DEN.  304 U.S. 581. 

THE SUIT IS BARRED BY THE DOCTRINE OF RES JUDICATA.  THE EARLIER
LITIGATION DEALT WITH THE BASIS OF THE FORD STOCK, AND THE REFUND
SOUGHT HEREIN TURNS UPON THE BASIS FOR THE IDENTICAL SHARES. 

THE FORMER SUIT IN THIS CASE AGAINST THE COLLECTOR WAS IN SUBSTANCE A
SUIT AGAINST THE GOVERNMENT.  SEE ELLIOTT V. SWARTWOUT, 10 PET. 137;
BARNEY V. WATSON, 92 U.S. 449, 452; MURRAY'S LESSEE V. HOBOKEN LAND
CO., 18 HOW.  272, 275; CARY V. CURTIS, 3 HOW.  236; CURTIS'S
ADMINISTRATRIX V. FIEDLER, 2 BLACK 461, 478; ARNSON V. MURPHY, 109 U.S.
238, 240. 

TO THE EXTENT THAT SAGE V. UNITED STATES, 250 U.S. 33, SEEMS TO REACH
A DIFFERENT RESULT, IT IS PLAINLY OUT OF LINE WITH MOORE ICE CREAM CO.
V. ROSE, 289 U.S. 373.  IN ANY EVENT, THE SAGE CASE IS
DISTINGUISHABLE.  THERE, THE RIGHTS WHICH WERE THE SUBJECT MATTER OF
THE SECOND SUIT HAD NOT BEEN THE SUBJECT OF PRIOR LITIGATION.  THE CASE
HAS BEEN REGARDED AS RESTING UPON THE PARTICULAR LEGISLATION INVOLVED. 
SECOND NATIONAL BANK OF SAGINAW V. WOODWORTH, 54 F.2D 672, 673, AFF'D
66 F.2D 170; CUDAHY PACKING CO. V. HARRISON, 18 F.SUPP.  250, 254,
APPEAL DISMISSED, 102 F.2D 981.  SEE, ALSO, GRISWOLD, RES JUDICATA IN
FEDERAL TAX CASES, 46 YALE L.J. 1320, 1341-1342. 

THE 1925 LETTER CONSTITUTED AN INFORMAL CLAIM FOR REFUND OF TAXES
OVERPAID IN 1920. 

THE WORD "CLAIM" IS INTERPRETED LIBERALLY IN DETERMINING THE
APPLICATION OF STATUTES OF LIMITATION.  FACTORS & FINANCE CO. V. UNITED
STATES, 56 F.2D 902, 905, AFFIRMED 288 U.S. 89; UNITED STATES V.
MEMPHIS COTTON OIL CO., 288 U.S. 62, 67; JONES V. UNITED STATES, 5
F.SUPP.  146. 

BY RETAINING AND TREATING THE 1925 LETTER AS A CLAIM FOR REFUND FOR A
PERIOD OF OVER TEN YEARS, THE COMMISSIONER WAIVED ANY AND ALL DEFECTS
OF FORM CONTAINED THEREIN.  UNITED STATES V. GARBUTT OIL CO., 302 U.S.
528; GEORGIA, F. & A. RY. CO. V. BLISH MILLING CO., 241 U.S. 190;
TUCKER V. ALEXANDER, 275 U.S. 228.  SEE, ALSO, UNITED STATES V. ELGIN
NATIONAL WATCH CO., 66 F.2D 344; UNITED STATES V. HUMBLE OIL P REFINING
CO., 69 F.2D 214; REYNOLDS V. MCMURRAY, 77 F.2D 740. 

THE TAXPAYER HAS NOT SPLIT A CAUSE OF ACTION.  OLD COLONY RY. CO. V.
UNITED STATES, 27 F.2D 994; CAMBRIDGE LOAN & BUILDING CO. V. UNITED
STATES, 57 F.2D 936. 

THE RULE OF RES JUDICATA CAN BE APPLIED ONLY WHEN THE TWO SUITS IN
QUESTION ARE BETWEEN THE SAME PARTIES OR THEIR PRIVIES.  THEN THE
QUESTION IS WHETHER THE SECOND SUIT IS ON THE SAME DEMAND AS WAS THE
FIRST.  IF THE SECOND SUIT IS ON A DIFFERENT DEMAND, THEN THE FIRST
JUDGMENT IS CONCLUSIVE ON THE PARTIES ONLY AS TO THE POINT THERE
ACTUALLY LITIGATED AND DETERMINED.  HERE THE SECOND SUIT IS NOT ON THE
SAME DEMAND.  SAGE V. UNITED STATES, 250 U.S. 33. 

THE DOCTRINE OF THE SAGE CASE HAS BEEN CONSISTENTLY FOLLOWED BY THIS
COURT.  IT HAS BEEN RELIED ON TO PROTECT THE RIGHTS, OR FURTHER THE
INTERESTS, OF THE GOVERNMENT.  SMIETANKA V. INDIANA STEEL CO., 257 U.S.
1; GRAHAM & FOSTER V. GOODCELL, 282 U.S. 409, 430; BANKERS COAL CO. V.
BURNET, 287 U.S. 308, 312; TAIT V. WESTERN MARYLAND RY. CO., 289 U.S.
620; GEORGE MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

TWO QUESTIONS ARE PRESENTED FOR DECISION BY THE RECORD IN THIS CASE. 
FIRST, WAS A LETTER, WRITTEN TO THE TAX COLLECTOR BY RESPONDENT
TAXPAYER AND LODGED WITH THE COMMISSIONER, A CLAIM FOR REFUND OF
OVERPAID TAXES SO AS TO STOP THE RUNNING OF THE STATUTE OF LIMITATIONS
AGAINST THE CLAIM?  SECOND, DID A JUDGMENT, REFUNDING TAXES PAID TO THE
COLLECTOR IN 1925 UPON PROFITS FROM THE SALE OF CERTAIN SHARES OF STOCK
IN 1919, BAR A LATER SUIT FOR A FURTHER RECOVERY OF 1919 TAXES,
OVERPAID IN 1920 TO A DIFFERENT COLLECTOR UPON PROFITS FROM THE SAME
TRANSACTION? 

IN 1919, RESPONDENT WAS THE OWNER OF 525 SHARES OF THE STOCK OF THE
FORD MOTOR COMPANY WHICH SHE HAD ACQUIRED BEFORE MARCH 1, 1913.  IN
ANTICIPATION OF THE SALE OF THE STOCK, SHE REQUESTED AND OBTAINED, IN
1919, FROM THE COMMISSIONER OF INTERNAL REVENUE, A RULING THAT THE
MARCH 1ST, 1913, VALUE OF THE STOCK WAS $9,489 PER SHARE.  SHE THEN
SOLD THE STOCK FOR $12,500 A SHARE, AND REPORTED IN HER INCOME TAX
RETURN FOR 1919 THE PROFIT OVER THE MARCH 1, 1913 VALUE THUS
ESTABLISHED.  IN 1920, SHE PAID THE TAX SO COMPUTED, AMOUNTING TO
$1,216,086, TO COLLECTOR GROGAN, SINCE DECEASED. 

IN MARCH, 1925, THE COMMISSIONER MADE A JEOPARDY DEFICIENCY
ASSESSMENT AGAINST RESPONDENT FOR AN INCREASE OF PROFIT ON THE SALE OF
THE STOCK IN 1919, ON THE GROUND THAT RESPONDENT HAD OVERSTATED THE
1913 VALUE OF THE STOCK IN HER 1919 TAX RETURN.  RESPONDENT PAID THE
ADDITIONAL ASSESSMENT, AMOUNTING TO $2,627,309, TO COLLECTOR WOODWORTH
ON MARCH 24, 1925.  AT THE SAME TIME, SHE LODGED WITH THE COLLECTOR AND
THE COMMISSIONER A WRITTEN PROTEST, DATED MARCH 23, 1925, AGAINST THE
JEOPARDY ASSESSMENT ON THE GROUND, AMONG OTHERS, THAT THE COMMISSIONER
WAS WITHOUT AUTHORITY IN LAW TO REOPEN AND SET ASIDE THE 1913 VALUATION
OF THE STOCK AS DETERMINED IN 1919 BY THE THEN COMMISSIONER, ON THE
BASIS OF WHICH RESPONDENT HAD SOLD HER STOCK.  BY PARAGRAPH 9 OF THE
PROTEST, RESPONDENT ALSO ADVISED THE COLLECTOR, THE COMMISSIONER AND
THE GOVERNMENT THAT, WHILE IT WAS RESPONDENT'S POSITION THAT THE
DEFICIENCY ASSESSMENT WAS ILLEGAL AND VOID FOR THIS AND OTHER REASONS
STATED, IF THE INTERNAL REVENUE DEPARTMENT, THE BOARD OF TAX APPEALS OR
ANY COURT HAVING JURISDICTION SHOULD HOLD THAT THE ASSESSMENT OF MARCH
1, 1913 VALUE OF HER STOCK, MADE IN 1919, SHOULD BE VACATED, SET ASIDE,
REOPENED OR REVERSED, THEN RESPONDENT WOULD INSIST THAT THE VALUATION
FIXED BY THE COMMISSIONER IN 1919 WAS LESS THAN THE FAIR MARKET VALUE
AS OF MARCH 1, 1913, THAT THE 1919 TAX WHICH SHE HAD PAID IN 1920 WAS
CORRESPONDINGLY EXCESSIVE, AND THAT SHE SHOULD RECOVER THE TAX TO THE
EXTENT OF SUCH EXCESS WHEN THE FAIR VALUE HAD BEEN DETERMINED.  SHE
ADDED IN PARAGRAPH 10 THAT "IF FOR ANY REASON A REVALUATION SHALL BE
HAD," SHE "WILL INSIST" THAT THE STOCK WAS GREATLY UNDERVALUED BY THE
DEPARTMENT AND "WILL CLAIM THE RIGHT TO A REFUND" OF THE EXCESS TAX
COLLECTED. 

AFTER A CLAIM DULY FILED FOR REFUND OF THE AMOUNT OF THE JEOPARDY
ASSESSMENT, PAID IN 1925, RESPONDENT BROUGHT SUIT IN THE DISTRICT COURT
AGAINST COLLECTOR WOODWORTH, WHICH RESULTED IN A JUDGMENT FOR THE
TAXPAYER FOR THE FULL AMOUNT OF THE ASSESSMENT WITH INTEREST.  THE
CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMED THE JUDGMENT,
WOODWORTH V. KALES, 26 F.2D 178, WHICH WAS SATISFIED IN NOVEMBER,
1928. 

SEPTEMBER 24, 1928, RESPONDENT FILED A FORMAL CLAIM FOR REFUND OF THE
TAXES PAID IN 1919, STATED TO BE AN AMENDMENT OF THE CLAIM FOR REFUND
CONTAINED IN HER LETTER OF PROTEST OF MARCH 23, 1925.  BY THE
AMENDMENT, RESPONDENT SOUGHT AN ADDITIONAL REFUND OF INCOME TAXES, PAID
FOR THE YEAR 1919, IN THE AMOUNT OF $195,710 WITH INTEREST, UPON THE
GROUND THAT THE FORD STOCK, AS THE BOARD OF TAX APPEALS HAD THEN
DETERMINED IN JAMES COUZENS, 11 B.T.A. 1040, HAD A MARCH 1, 1913 VALUE
OF $10,000 PER SHARE, AND THAT SHE SHOULD ACCORDINGLY HAVE THE BENEFIT
OF THIS HIGHER BASIS IN COMPUTING HER PROFIT.  AT A HEARING GRANTED BY
THE GENERAL COUNSEL FOR THE BUREAU OF INTERNAL REVENUE ON JUNE 13,
1929, THE AMENDED CLAIM WAS CONSIDERED ON THE MERITS.  AGAIN, IN
JANUARY, 1933, A MEMBER OF HIS STAFF, AT A CONFERENCE WITH RESPONDENT'S
ATTORNEY, ADVISED THE LATTER THAT THE INFORMAL CLAIM WAS FILED IN TIME
AND WAS GOOD AS AN INFORMAL CLAIM. 

BY LETTER OF JUNE 4, 1935, HOWEVER, THE COMMISSIONER DECLINED TO ACT
UPON IT, ON THE SINGLE GROUND THAT BECAUSE RESPONDENT'S JUDGMENT FOR
REFUND OF THE JEOPARDY ASSESSMENT FOR 1919 TAXES HAD BEEN SATISFIED
"THE BUREAU IS PRECLUDED FROM GIVING FURTHER CONSIDERATION IN ANY
RESPECT TO THE MATTER OF YOUR INCOME TAX LIABILITY FOR THE TAXABLE YEAR
1919."  THIS WAS FOLLOWED BY THE DEPUTY COMMISSIONER'S LETTER OF AUGUST
20, 1935, TO RESPONDENT, STATING THAT "THE REFUND CLAIM FILED IN 1925
WAS MERGED INTO THE JUDGMENT  ...  AND YOU WERE, THEREFORE, PRECLUDED
FROM FILING AN AMENDMENT TO THE EARLIER CLAIM WHICH HAD BEEN FINALLY
ADJUDICATED."  THE LETTER ADDED "THE ADJUDICATION BY THE COURT REMOVED
THIS MATTER FROM THE REALM OF ADMINISTRATIVE ACTION OTHER THAN TO MAKE
REFUND AS DIRECTED BY THE JUDGMENT." 

COLLECTOR GROGAN HAVING RETIRED FROM OFFICE AND HAVING DIED, THE
PRESENT SUIT FOR REFUND OF THE OVERPAYMENT OF THE TAX CLAIMED WAS
BROUGHT IN THE DISTRICT COURT AGAINST THE UNITED STATES UNDER THE
PROVISIONS OF SEC. 1122(C) OF THE REVENUE ACT OF 1926.  THIS SECTION
AUTHORIZES SUITS IN THE DISTRICT COURT FOR THE REFUND OF OVERPAYMENT OF
REVENUE TAXES, EVEN IF IN EXCESS OF $10,000, TO BE BROUGHT AGAINST THE
UNITED STATES, WHERE THE COLLECTOR TO WHOM THE OVERPAYMENT WAS MADE IS
DEAD OR IS NOT IN OFFICE WHEN THE SUIT IS BROUGHT.  THE JUDGMENT OF THE
DISTRICT COURT DISMISSING THE SUIT ON MOTION WAS REVERSED BY THE
CIRCUIT COURT OF APPEALS, 115 F.2D 497, WHICH HELD THAT THE LETTER OF
MARCH 23, 1925, WAS A TIMELY INFORMAL CLAIM FOR REFUND WHICH HAD BEEN
PERFECTED BY THE FORMAL AMENDED CLAIM FILED IN SEPTEMBER, 1928, THAT
CONSEQUENTLY THE RESPONDENT'S CAUSE OF ACTION WAS NOT BARRED BY
LIMITATION AND THAT RECOVERY WAS NOT PRECLUDED BY THE PREVIOUS JUDGMENT
FOR RECOVERY OF THE JEOPARDY ASSESSMENT FOR 1919.  WE GRANTED
CERTIORARI, 313 U.S. 553, UPON PETITION OF THE GOVERNMENT, WHICH URGED
THAT ANY FURTHER RECOVERY FOR OVERPAYMENT OF THE 1919 TAX WAS BARRED BY
THE JUDGMENT IN THE RESPONDENT'S SUIT AND RECOVERY OF THE JEOPARDY
ASSESSMENT FOR THAT YEAR, A QUESTION OF IMPORTANCE IN THE
ADMINISTRATION OF THE REVENUE LAWS.  THE GOVERNMENT URGES AS GROUNDS
FOR REVERSAL THAT, IF RESPONDENT'S LETTER OF MARCH 23, 1925 BE
CONSIDERED A CLAIM FOR REFUND, ANY RECOVERY IS BARRED BY THE 1928
JUDGMENT, AND THAT IN ANY EVENT THE LETTER WAS NOT A CLAIM FOR REFUND
AND DOES NOT SUPPORT THE PRESENT SUIT. 

FIRST.  CONCEDEDLY, RECOVERY OF THE 1919 TAX, PAID IN 1920, IS NOT
BARRED BY LIMITATION IF RESPONDENT'S LETTER OF MARCH 23, 1925, BE
TREATED AS A CLAIM FOR REFUND.  THE COLLECTOR OF INTERNAL REVENUE
EXTENDED THE RESPONDENT'S TIME TO MAKE RETURN OF HER 1919 INCOME TAXES
FOR THIRTY DAYS FROM MARCH 15, 1920, AND HER LETTER WAS PLACED WITH THE
COMMISSIONER WITHIN FIVE YEARS OF THE EXPIRATION OF THE EXTENDED TIME. 
CLAIM FOR REFUND OF 1919 TAXES SHALL NOT BE BARRED BY A LAPSE OF TIME
IF FILED WITHIN FIVE YEARS FROM THE DATE WHEN THE RETURN WAS DUE. 
REVISED STATUTES SEC. 3226, 26 U.S.C. SEC. 1672, MAKES THE FILING OF A
CLAIM FOR REFUND IN ACCORDANCE WITH THE LAW AND TREASURY REGULATIONS A
CONDITION PRECEDENT TO SUIT TO RECOVER IT.  ARTICLE 1306 OF TREASURY
REGULATIONS 65, PROMULGATED UNDER THE 1924 REVENUE ACT AND APPLICABLE
HERE, PROVIDES THAT CLAIMS FOR REFUND SHALL BE MADE UPON FORM 843,
SETTING FORTH ALL THE FACTS RELIED ON UNDER OATH.  BUT TREASURY
DECISION 4266, PROMULGATED MARCH 27, 1929, AUTHORIZES THE COMMISSIONER
TO MAKE A REFUND AFTER THE EXPIRATION OF THE STATUTORY PERIOD OF
LIMITATION, EVEN THOUGH NO FORMAL CLAIM HAS BEEN FILED BEFORE THAT
TIME, IN ANY CASE IN WHICH AN INFORMAL OR DEFECTIVE CLAIM, DULY FILED
PRIOR TO THE EXPIRATION OF THE PERIOD OF LIMITATION AND STATING
SPECIFICALLY THE GROUNDS FOR THE REFUND, IS PERFECTED BY THE FILING OF
A CLAIM PRIOR TO MAY 1, 1929. 

THIS COURT, APPLYING THE STATUTE AND REGULATIONS, HAS OFTEN HELD THAT
A NOTICE FAIRLY ADVISING THE COMMISSIONER OF THE NATURE OF TTHE
TAXPAYER'S CLAIM, WHICH THE COMMISSIONER COULD REJECT BECAUSE TOO
GENERAL OR BECAUSE IT DOES NOT COMPLY WITH FORMAL REQUIREMENTS OF THE
STATUTE AND REGULATIONS, WILL NEVERTHELESS BE TREATED AS A CLAIM, WHERE
FORMAL DEFECTS AND LACK OF SPECIFICITY HAVE BEEN REMEDIED BY AMENDMENT
FILED AFTER THE LAPSE OF THE STATUTORY PERIOD.  UNITED STATES V.
MEMPHIS COTTON OIL CO., 288 U.S. 62; UNITED STATES V. FACTORS & FINANCE
CO., 288 U.S. 89; BEMIS BRO. BAG CO. V. UNITED STATES, 289 U.S. 28;
MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373, 384.  THIS IS ESPECIALLY THE
CASE WHERE SUCH A CLAIM HAS NOT MISLED THE COMMISSIONER AND HE HAS
ACCEPTED AND TREATED IT AS SUCH.  BONWIT TELLER & CO. V. UNITED STATES,
283 U.S. 258; UNITED STATES V. MEMPHIS COTTON OIL CO., SUPRA, 70.    IN
APPLYING THESE GUIDING PRINCIPLES TO THE CASE IN HAND, IT IS NECESSARY
TO READ THE LETTER OF MARCH 23, 1925, IN THE LIGHT OF THE PECULIAR
CIRCUMSTANCES THEN WELL KNOWN TO THE COMMISSIONER AND REFERRED TO IN
THE LETTER.  THE LETTER DEALT WITH TWO DISTINCT SUBJECTS.  ONE WAS THE
JEOPARDY ASSESSMENT WHICH THE TAXPAYER WAS ABOUT TO PAY AND DID IN FACT
PAY TO THE COLLECTOR ON THE FOLLOWING DAY WHEN THE LETTER IN DUPLICATE
WAS GIVEN TO THE COLLECTOR AND THE COMMISSIONER.  THE OTHER, STATED IN
PARAGRAPHS 9 AND 10 OF THE LETTER, RELATED TO THE LIABILITY OF THE
GOVERNMENT FOR OVERPAYMENTS OF 1919 TAXES MADE TO COLLECTOR GROGAN IN
1920, IN THE EVENT THAT THE COMMISSIONER'S 1919 ASSESSMENT OF THE FORD
STOCK SHOULD BE SET ASIDE BY THE COURTS OR ADMINISTRATIVE ACTION.  IN
THAT EVENT, THE LETTER RECITES THAT THE 1919 VALUATION WAS TOO LOW, THE
TAX PAID IN 1920 WAS TOO HIGH, AND ASSERTS THE TAXPAYER'S CONSEQUENT
"RIGHT TO A REFUND OF SAID TAX TO THE EXTENT OF SUCH EXCESS." 

THE LETTER STATES CORRELATIVE ALTERNATIVE RIGHTS ON WHICH THE
TAXPAYER RELIED.  ONE WAS THE CHALLENGE TO THE VALIDITY OF THE 1925
JEOPARDY ASSESSMENT ON THE GROUND THAT THE APPRAISAL IN 1919 OF THE
THEN COMMISSIONER WAS UNALTERABLE.  THE OTHER WAS RESPONDENT'S RIGHT TO
A REFUND OF TAXES PAID IN 1920 IN THE EVENT THAT THE 1919 APPRAISEMENT
OF THE STOCK SHOULD BE SET ASIDE BY THE BUREAU OR BE DETERMINED TO BE
ERRONEOUS.  WHETHER THE COMMISSIONER WOULD INSIST UPON CHANGING THE
1919 APPRAISAL OF HER STOCK, AND WHETHER IN ANY CASE THE BOARD OF TAX
APPEALS WOULD FIND A DIFFERENT 1913 VALUE FOR THE STOCK, WERE MATTERS
FOR FUTURE DETERMINATION.  WHEN RESPONDENT FILED HER LETTER, THE TIME
WITHIN WHICH A CLAIM FOR REFUND COULD BE FILED WAS ABOUT TO EXPIRE, AND
THE OCCURRENCE OF THE CONTINGENCIES ON WHICH A RECOVERY COULD BE HAD BY
RESPONDENT REMAINED UNCERTAIN.  BUT THE COMMISSIONER COULD HAVE BEEN
LEFT IN NO DOUBT THAT SHE WAS SETTING FORTH HER RIGHT TO A REFUND IN
THE EVENT OF A DEPARTMENTAL REVISION OF ITS 1919 VALUATION OF HER
STOCK.  HER LETTER WAS PRESENT NOTICE THAT, IF THE DEPARTMENT INSISTED
UPON CHANGING ITS ORIGINAL DECISION AS TO THE 1913 VALUE, SHE ASSERTED
THAT THE STOCK HAD BEEN UNDERVALUED AND IN CONSEQUENCE OF THE
UNDERVALUATION SHE HAD A "RIGHT TO A REFUND OF SAID (1919) TAX TO THE
EXTENT OF SUCH EXCESS."  HER CONCLUDING PARAGRAPH MADE THE LIKE
ASSERTION "IF FOR ANY REASON A REVALUATION SHALL BE HAD" OF THE FORD
STOCK.  AT THAT TIME, THE COMMISSIONER HAD ASSESSED DEFICIENCIES
AGGREGATING $31,000,000 AGAINST FORMER FORD STOCKHOLDERS WHO HAD SOLD
STOCK WHICH THEY HAD ACQUIRED BEFORE MARCH 1, 1913.  SEE JAMES COUZENS,
11 B.T.A. 1043-4.  RESPONDENT'S AMENDED FORMAL CLAIM OF SEPTEMBER 11,
1928, ONLY MADE MORE SPECIFIC THE ALLEGATIONS OF HER EARLIER INFORMAL
CLAIM BY STATING THAT THE BOARD OF TAX APPEALS HAD FOUND THE 1913 VALUE
OF THE STOCK TO BE $10,000 PER SHARE, AND BY COMPUTING THE EXCESS TAX,
THE RIGHT TO WHICH HAD BEEN ASSERTED IN THE EARLIER CLAIM. 

THE FACT THAT RESPONDENT HAD ORIGINALLY STATED HER CLAIM IN THE
FUTURE TENSE, SAYING THAT IN THE EVENT OF DEPARTMENTAL REVISION OF THE
VALUATION OF THE STOCK SHE "WILL INSIST" ON A HIGHER VALUATION AND
"WILL CLAIM THE RIGHT TO A REFUND," DOES NOT, IN THE CIRCUMSTANCES OF
THIS CASE, LEND EVEN GRAMMATICAL SUPPORT TO THE GOVERNMENT'S
CONTENTION.  SUCH A USE OF THE FUTURE TENSE IN STATING A CLAIM MAY,
WITH DUE REGARD TO THE CIRCUMSTANCES OF MAKING IT, RIGHTLY BE TAKEN AS
AN ASSERTION OF A PRESENT RIGHT.  SEE GEORGIA, F. & A. RY. CO. V. BLISH
MILLING CO., 241 U.S. 190, 197-8; CF. MOORE ICE CREAM CO. V. ROSE,
SUPRA, 384, REVERSING 61 F.2D 605.  HERE THE CLAIM IS ALTERNATIVE AND
CONTINGENT UPON FUTURE EVENTS.  THE STATEMENT THAT UPON THE HAPPENING
OF THE CONTINGENCY THE CLAIM WILL BE PROSECUTED IS NOT INCONSISTENT
WITH THE PRESENT ASSERTION OF IT.  IT IS INDEED AN APPROPRIATE, IF NOT
THE NECESSARY, PHRASEOLOGY FOR THE PRESENT ASSERTION OF AN ALTERNATIVE
CLAIM WITH RESPECT TO WHICH A TAXPAYER, IN HIS PRESENTATION OF AN
INFORMAL TAX REFUND CLAIM, SHOULD BE IN NO LESS FAVORABLE POSITION THAN
THE PLAINTIFF IN A SUIT AT LAW WHO IS PERMITTED TO PLEAD HIS CAUSE OF
ACTION IN THE ALTERNATIVE.  SEE RULE 8(E) OF THE FEDERAL RULES OF CIVIL
PROCEDURE; UNITED STATES V. RICHARDS, 79 F.2D 797. 

IF THE POINT WERE MORE DOUBTFUL THAN WE THINK IT IS, IT WOULD BE
RESOLVED BY THE CONSISTENT ADMINISTRATIVE TREATMENT OF RESPONDENT'S
LETTER OF MARCH 23, 1925, AND THE LATER AMENDMENT AS A CLAIM FOR
REFUND.  NEITHER THE ORIGINAL NOR THE AMENDED CLAIM HAS EVER BEEN
REJECTED AS INADEQUATE BY THE COMMISSIONER OR THE BUREAU.  THERE HAS
BEEN NO OBJECTION TO THE CLAIM ON THE GROUND THAT IT WAS INFORMAL,
DEFICIENT IN ITS CONTENT, OR UNTIMELY.  ACKNOWLEDGMENT OF THE LETTER OF
MARCH 23, 1925, BY THE COMMISSIONER REFERRED TO THE JEOPARDY
ASSESSMENT, BUT MADE NO MENTION OF THE ASSERTED RIGHT TO REFUND OF
TAXES PAID IN 1920.  AFTER THE AMENDMENT WAS FILED IN SEPTEMBER, 1928,
THE CLAIM WAS HELD UNDER ADVISEMENT BY THE BUREAU FOR NEARLY SEVEN
YEARS.  AS WE HAVE SAID, IT WAS CONSISTENTLY TREATED IN CORRESPONDENCE
BY THE BUREAU AND AT HEARINGS DURING THIS PERIOD AS A CLAIM FOR
REFUND.  THE COMMISSIONER FINALLY, BY HIS LETTERS OF JUNE 4, 1935 AND
AUGUST 25, 1935, DECLINED TO CONSIDER THE CLAIM ON THE SOLE GROUND THAT
IT WAS NO LONGER A SUBJECT OF ADMINISTRATIVE ACTION BECAUSE "THE REFUND
CLAIM FILED IN 1925 WAS MERGED INTO THE JUDGMENT" FOR REFUND OF THE TAX
PAID ON THE JEOPARDY ASSESSMENT.  NOT ONLY DO WE THINK THAT THIS ENTIRE
COURSE OF DEPARTMENTAL ACTION WAS AN ADMINISTRATIVE CONSTRUCTION OF
RESPONDENT'S LETTER OF MARCH 23, 1925, CONFORMING TO OUR OWN
INTERPRETATION OF ITS WORDS, BUT WE THINK IT WAS A WAIVER OF THE
REQUIREMENTS OF THE REGULATIONS AS TO THE FORMALITY AND PARTICULARITY
WITH WHICH THE GROUNDS FOR REFUND ARE REQUIRED TO BE STATED.  BONWIT
TELLER & CO. V. UNITED STATES, SUPRA, 264; UNITED STATES V. MEMPHIS
COTTON OIL CO., SUPRA, 288 U.S. AT P. 70; CF. TUCKER V. ALEXANDER, 275
U.S. 228, 231; UNITED STATES V. GARBUTT OIL CO., 302 U.S. 528, 533. 

SECOND.  THE GOVERNMENT ARGUES THAT THE RIGHT TO RECOVER FOR
OVERPAYMENT OF INCOME TAXES IN ANY TAX YEAR CONSTITUTES A SINGLE CAUSE
OF ACTION AGAINST THE GOVERNMENT, AND THAT THE PRESENT SUIT BY THE
RESPONDENT, SEEKING RECOVERY OF 1919 TAXES, AFTER HAVING RECOVERED THE
AMOUNT OF THE JEOPARDY ASSESSMENT FOR THE SAME YEAR, INVOLVED AN
INADMISSIBLE SPLITTING OF HER CAUSE OF ACTION.  IN ANY EVENT, IT
INSISTS THAT NO CAUSE OF ACTION FOR RECOVERY OF OVERPAYMENT OF 1919
TAXES COULD SURVIVE THE RECOVERY OF THE AMOUNT OF THE JEOPARDY
ASSESSMENT, SINCE THE JUDGMENT FOR THAT RECOVERY MERGED ALL CLAIMS FOR
OVERPAYMENT OF 1919 TAXES AND SO FORECLOSED THE PRESENT SUIT FOR
ADDITIONAL OVERPAYMENTS OF TAXES GROWING OUT OF THE SAME TRANSACTION. 

BUT WE THINK THESE CONTENTIONS DISREGARD THE STATUTORY SCHEME WHICH
HAS BEEN SET UP FOR THE RECOVERY FROM AN INTERNAL REVENUE COLLECTOR, OF
TAXES WHICH HE HAD UNLAWFULLY COLLECTED.  SEE SAGE V. UNITED STATES,
250 U.S. 33.  ORIGINALLY, PAYMENT UNDER PROTEST TO AN INTERNAL REVENUE
COLLECTOR OF ILLEGALLY EXACTED TAXES GAVE RISE TO A COMMON LAW CAUSE OF
ACTION AGAINST THE COLLECTOR FOR RESTITUTION OF THE OVERPAYMENT. 
ELLIOTT V. SWARTWOUT, 10 PET. 137, 153, 156; MOORE ICE CREAM CO. V.
ROSE, SUPRA, 375, AND CASES CITED.  BY THE PROTEST THE COLLECTOR WAS
INFORMED OF THE CONTENTION OF THE TAXPAYER AND WAS THUS PRECLUDED FROM
RELIEVING HIMSELF, BY PAYMENT INTO THE TREASURY OF THE MONEYS
COLLECTED, FROM LIABILITY TO MAKE RESTITUTION.  ELLIOTT V. SWARTWOUT,
SUPRA; SMIETANKA V. INDIANA STEEL CO., 257 U.S. 1, 4.  BY A SERIES OF
CONGRESSIONAL ACTS IT WAS MADE THE DUTY OF THE COLLECTOR TO PAY TO THE
GOVERNMENT THE MONEYS COLLECTED, REGARDLESS OF A PROTEST.  12 STAT.
442; 13 STAT. 483; R.S. SEC. 3210; 26 U.S.C. SEC. 1761.  BUT WITH
IMPOSITION OF THIS DUTY ON THE COLLECTOR TO PAY OVER, THE GOVERNMENT
UNDERTOOK TO INDEMNIFY HIM UPON CERTIFICATION BY THE COURT, EITHER THAT
THERE WAS PROBABLE CAUSE FOR THE ACT DONE BY THE COLLECTOR, OR THAT HE
ACTED UNDER DIRECTIONS OF THE SECRETARY OF THE TREASURY OR OTHER PROPER
OFFICERS OF THE GOVERNMENT.  12 STAT. 741, SEC. 12.  IN THAT EVENT, NO
EXECUTION WAS TO ISSUE AGAINST HIM, BUT THE AMOUNT OF RECOVERY WAS TO
BE PAID OUT OF THE TREASURY.  THESE PROVISIONS, CARRIED INTO REVISED
STATUTES SEC. 989, ARE CONTINUED AS 28 U.S.C. SEC. 842.  BY SEC. 1014
OF THE REVENUE ACT OF 1924, 43 STAT. 253, 343, AMENDING REVISED
STATUTES SEC. 3226, THE REQUIREMENT FOR PROTEST OF THE PAYMENT WAS
ABOLISHED. 

WHILE THE EFFECT OF THE CERTIFICATE IN INDEMNIFYING THE COLLECTOR HAS
BEEN SAID TO CONVERT THE SUIT AGAINST HIM INTO A SUIT AGAINST THE
GOVERNMENT, AT LEAST SO FAR AS THE ULTIMATE INCIDENCE OF THE LIABILITY
IS CONCERNED, UNITED STATES V. SHERMAN, 98 U.S. 565, 567; MOORE ICE
CREAM CO. V. ROSE, SUPRA, 289 U.S. AT P. 381, THE STATUTORY PROVISIONS
HAVE NOT ALTERED THE NATURE AND EXTENT OF THE CLAIMS WHICH THE TAXPAYER
IS AUTHORIZED TO PROSECUTE IN SUITS AGAINST THE COLLECTOR.  ORIGINALLY
IT WAS THE PAYMENT OF THE ILLEGALLY EXACTED TAX WHICH GAVE RISE TO THE
CAUSE OF ACTION.  IT WAS THE PAYMENT WHICH DESIGNATED THE PERSON
AGAINST WHOM THE SUIT MIGHT BE BROUGHT AND WHICH MEASURED THE RIGHT OF
RECOVERY.  PAYMENTS MADE TO ONE COLLECTOR COULD NOT BE RECOVERED FROM
ANOTHER, AND, SINCE THE CAUSES OF ACTION AGAINST THE TWO COLLECTORS
WERE DIFFERENT, RECOVERY UPON ONE COULD NOT BAR RECOVERY UPON THE
OTHER. 

AFTER THE ENACTMENT OF LEGISLATION REQUIRING COLLECTORS OF CUSTOMS TO
PAY OVER TO THE GOVERNMENT DUTIES COLLECTED UNDER PROTEST, 5 STAT. 348;
R.S. SEC. 3010, DOUBTS AROSE WHETHER SUIT COULD, IN SUCH CIRCUMSTANCES,
BE MAINTAINED AGAINST THEM, SINCE IT WAS THOUGHT THAT THE STATUTORY
COMMAND HAD RELIEVED THE COLLECTORS FROM PERSONAL LIABILITY.  SEE CARY
V. CURTIS, 3 HOW.  235.  BUT THOSE DOUBTS WERE PUT AT REST BY LATER
ACTS OF CONGRESS ESTABLISHING THE CONTINUED RIGHT OF THE TAXPAYER TO
MAINTAIN A SUIT AGAINST SUCH A COLLECTOR NOTWITHSTANDING PAYMENT OVER
OF HIS COLLECTIONS TO THE TREASURY.  5 STAT. 727; R.S. SEC. 3011;
CURTIS'S ADMINISTRATRIX V. FIEDLER, 2 BLACK 461, 479; ARNSON V. MURPHY,
109 U.S. 238, 241.  A LIKE UNCERTAINTY AS TO THE EFFECT OF THE STATUTES
REQUIRING INTERNAL REVENUE COLLECTORS TO PAY MONEYS COLLECTED TO THE
GOVERNMENT WAS RESOLVED BY THIS COURT'S DECISIONS IN PHILADELPHIA V.
COLLECTOR, 5 WALL.  720, 731; COLLECTOR V. HUBBARD, 12 WALL.  1, 13. 
AS CONGRESS HAD ENACTED PROVISIONS FOR INDEMNIFICATION OF THE COLLECTOR
BY THE GOVERNMENT, THE IMPLICATION NECESSARILY AROSE THAT THE TAXPAYER
COULD MAINTAIN AN ACTION AGAINST HIM.  SEE 12 STAT. 434, 729, 741; 13
STAT. 239. 

THE RIGHT OF ACTION THUS CONTINUED IS IDENTICAL WITH THAT WHICH
EXISTED BEFORE CONGRESS HAD ACTED.  NOTWITHSTANDING THE PROVISION FOR
INDEMNIFYING THE COLLECTOR AND PROTECTING HIM FROM EXECUTION, THE
NATURE AND EXTENT OF THE RIGHT ASSERTED AND THE MEASURE OF THE RECOVERY
REMAIN THE SAME.  IT WAS PAYMENT TO THE COLLECTOR WHICH GAVE RISE TO
THE SUIT AGAINST HIM AND LIMITED THE AMOUNT OF THE RECOVERY.  THE
JUDGMENT AGAINST THE COLLECTOR IS A PERSONAL JUDGMENT, TO WHICH THE
UNITED STATES IS A STRANGER EXCEPT AS IT HAS OBLIGATED ITSELF TO PAY
IT.  SEE SAGE V. UNITED STATES, SUPRA; SMIETANKA V. INDIANA STEEL CO.,
SUPRA, 4, 5. 

WHILE THE STATUTES HAVE FOR MOST PRACTICAL PURPOSES REDUCED THE
PERSONAL LIABILITY OF THE COLLECTOR TO A FICTION, THE COURSE OF THE
LEGISLATION INDICATES CLEARLY ENOUGH THAT IT IS A FICTION INTENDED TO
BE ACTED UPON TO THE EXTENT THAT THE RIGHT TO MAINTAIN THE SUIT AND ITS
INCIDENTS, UNTIL JUDGMENT RENDERED, ARE TO BE LEFT UNDISTURBED.  AMONG
ITS INCIDENTS IS THE RIGHT TO A JURY TRIAL, WHICH IS NOT AVAILABLE IN
SUITS AGAINST THE UNITED STATES.  28 U.S.C. SEC. 41(20). 

BY NO POSSIBILITY COULD THE RESPONDENT IN THE SUIT BROUGHT AGAINST
COLLECTOR WOODWORTH IN 1925 RECOVER TAXES PAID TO COLLECTOR GROGAN IN
1920, WHICH SHE DEMANDS HERE.  RECOVERY FROM ONE COLLECTOR OF THE
PAYMENT TO HIM DOES NOT BAR RECOVERY ON THE DIFFERENT CAUSE OF ACTION
ARISING UPON PAYMENT TO THE OTHER, EVEN THOUGH THE TWO COLLECTIONS ARE
FOR TAXES ARISING OUT OF THE SAME TRANSACTION.  SAGE V. UNITED STATES,
SUPRA; BANKERS POCAHONTAS COAL CO. V. BURNET, 287 U.S. 308; CF. GRAHAM
& FOSTER V. GOODCELL, 282 U.S. 409, 430; SUNSHINE COAL CO. V. ADKINS,
310 U.S. 381, 403.  THE RIGHT TO PURSUE THE COMMON LAW ACTION AGAINST
THE COLLECTOR IS TOO DEEPLY IMBEDDED IN THE STATUTES AND JUDICIAL
DECISIONS OF THE UNITED STATES TO ADMIT OF SO RADICAL A DEPARTURE FROM
ITS TRADITIONAL USE AND CONSEQUENCES AS THE GOVERNMENT NOW URGES,
WITHOUT FURTHER CONGRESSIONAL ACTION.  AFFIRMED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















PINK V. A.A.A. HIGHWAY EXPRESS, 314 U.S. 201 


NO. 48.  ARGUED NOVEMBER 19, 1941.  - DECIDED DECEMBER 8, 1941.  - 191
GA. 520, 13 S.E.2D 337, AFFIRMED. 


ALTHOUGH, BY THE LAW OF THE STATE OF INCORPORATION, POLICYHOLDERS OF A
MUTUAL INSURANCE COMPANY BE "MEMBERS" OF THE COMPANY AND AS SUCH LIABLE
TO PAY ASSESSMENTS MADE AND ADJUDGED AGAINST THEM IN THAT STATE IN
LIQUIDATION PROCEEDINGS, THE COURTS OF ANOTHER STATE ARE NOT REQUIRED
BY THE FULL FAITH AND CREDIT CLAUSE TO ENFORCE SUCH LIABILITY AGAINST
LOCAL RESIDENTS WHOSE POLICIES ARE LOCAL CONTRACTS AND ON THEIR FACE
ARE MERE CONTRACTS OF INSURANCE WITHOUT MENTION OF MEMBERSHIP OR
ASSESSMENTS; BUT ARE FREE TO DECIDE ACCORDING TO THE LOCAL LAW AND
POLICY THE QUESTION WHETHER BY ENTERING INTO SUCH CONTRACTS THE
RESIDENTS BECAME MEMBERS OF THE COMPANY.  P. 208. 

SO HELD, WHERE THE POLICYHOLDERS HAD NOT APPEARED OR BEEN PERSONALLY
SERVED, IN THE FOREIGN LIQUIDATION PROCEEDINGS. 

PINK, SUPERINTENDENT OF INSURANCE OF THE STATE OF NEW YORK, V. A. A.
A. HIGHWAY EXPRESS, INC. ET AL. 

CERTIORARI TO THE SUPREME COURT OF GEORGIA. 

CERTIORARI, 313 U.S. 555, TO REVIEW A JUDGMENT WHICH AFFIRMED A
JUDGMENT DISMISSING ON DEMURRER A SUIT BROUGHT BY A NEW YORK
SUPERINTENDENT OF INSURANCE AGAINST NUMEROUS RESIDENTS OF GEORGIA,
POLICYHOLDERS IN A NEW YORK MUTUAL INSURANCE COMPANY, TO RECOVER
ASSESSMENTS MADE AGAINST THEM IN PROCEEDINGS CONDUCTED IN NEW YORK FOR
THE LIQUIDATION OF THE COMPANY. 

THE LAWS OF THE STATE WHERE THE CORPORATION WAS CHARTERED CONTROL THE
RIGHTS AND LIABILITIES OF THE STOCKHOLDERS AND MEMBERS.  SUPREME
COUNCIL V. GREEN, 237 U.S. 531; SOVEREIGN CAMP V. BOLIN, 305 U.S. 65;
CHANDLER V. PEKETZ, 297 U.S. 609; HARTFORD STEAM BOILER CO. V.
HARRISON, 301 U.S. 459, 464; TAGGART V. WACHTER, HOSKINS & RUSSELL,
INC., 21 A.2D 141; PINK V. AARON, 13 S.E.2D 489; PINK V. TOWN TAXI CO.,
21 A.2D 656. 

THE LAWS OF NEW YORK IMPOSE ON ALL POLICYHOLDERS A CONTINGENT
LIABILITY, FACTORY MUTUAL LIABILITY INS. CO. V. BEHAN, 253 N.Y.S. 562,
564; BEHA V. WEINSTOCK, 247 N.Y. 221, IN WHICH CREDITORS HAVE A VESTED
RIGHT.  CORNING V. MCCULLOUGH, 1 COMSTOCK 47; COOMBES V. GETZ, 285 U.S.
434, 448. 

STATUTORY REQUIREMENTS ARE READ INTO THE POLICIES.  BAKKER V. AETNA
LIFE INS. CO., 264 N.Y. 150; NEWTON V. EMPLOYERS LIABILITY ASSURANCE
CORP., 107 F.2D 164; NATIONAL UNION FIRE INS. CO. V. WANBERG, 260 U.S.
71; MERCHANTS MUTUAL INS. CO. V. SMART, 267 U.S. 129; FIRE ASSOCIATION
OF PHILADELPHIA V. NEW YORK, 119 U.S. 110; COGLIANO V. FERGUSON, 139
N.E. 527; SOUTHERN SURETY CO. V. CHAMBERS, 115 OHIO ST. 434. 

RESIDENTS OF GEORGIA RECEIVED NOTICE OF AND WERE BOUND BY THE NEW
YORK PROCEEDINGS.  MILLIKEN V. MEYER, 311 U.S. 457; BERNHEIMER V.
CONVERSE, 206 U.S. 516; TAGGART V. WACHTER, HOSKINS & RUSSELL, INC., 21
A.2D 141; MARIN V. AUGEDAHL, 247 U.S. 142. 

THE ASSESSMENT HAVING BEEN APPROVED BY THE COURT BECAME RES JUDICATA
AGAINST ALL DEFENDANTS.  BRODERICK V. ROSNER, 294 U.S. 629; CHANDLER V.
PEKETZ, 297 U.S. 609; MARIN V. AUGEDAHL, 247 U.S. 142; HANCOCK NATIONAL
BANK V. FARNUM, 176 U.S. 640. 

APPLICATION OF THE LAWS OF GEORGIA DEPRIVED PETITIONER OF
CONSTITUTIONAL RIGHTS.  SOVEREIGN CAMP V. BOLIN, 305 U.S. 65. 

FULL FAITH AND CREDIT WAS NOT DENIED PETITIONER.  IN RE AUTO MUTUAL
INDEMNITY CO., 14 N.Y.S.2D 601; PENNOYER V. NEFF, 95 U.S. 733;
WISCONSIN V. PELICAN INS. CO., 127 U.S. 471; BAGLEY V. GENERAL FIRE
EXTINGUISHER CO., 212 U.S. 477; COMMERCIAL PUBLISHING CO. V. BECKWITH,
188 U.S. 567; OLD WAYNE MUTUAL LIFE ASSN. V. MCDONOUGH, 204 U.S. 8;
WETMORE V. KARRICK, 205 U.S. 141; PACIFIC EMPLOYERS' INS. CO. V.
INDUSTRIAL ACCIDENT COMM'N, 306 U.S. 493. 

THE DEFENDANTS DID NOT UNDER THEIR CONTRACTS BECOME MEMBERS OF THE
COMPANY.  CRAIG V. WESTERN LIFE INS. CO., 116 S.W. 1113; BEHA V.
WEINSTOCK, 160 N.E. 17; 23 HARV. L.REV.  38.  THE POLICY WAS BUT AN
ORDINARY STANDARD COMMERCIAL OLD-LINE POLICY WITH A FLAT PREMIUM. 
THERE ARE MANY MUTUAL COMPANIES WHOSE POLICIES ARE NOT ASSESSABLE. 

THE POLICY HAVING BEEN ISSUED IN VIOLATION OF THE LAW OF NEW YORK,
THE POLICYHOLDER IS NOT LIABLE FOR ASSESSMENT.  SEC. 346 NEW YORK
INSURANCE LAWS. 

RESPONDENTS ARE BOUND ONLY BY PROVISIONS ON THE FACE OF THE POLICY. 
NORTHWESTERN NATIONAL INS. CO. V. SOUTHERN STATES PHOSPHATE CO., 20 GA.
APP. 605; ELECTRIC LUMBER CO. V. NEW YORK UNDERWRITERS INS. CO., 43 GA.
APP. 355; DWINDELL V. KRAMER, 92 N.W. 227; BAKER V. SOVEREIGN CAMP, 116
S.W. 513. 

RULINGS OF THE SUPREME COURT OF GEORGIA CONSTRUING A CONTRACT MADE IN
GEORGIA ARE BINDING AND FINAL.  WILHELM V. SECURITY BENEFIT ASSN., 104
S.W.2D 1042; PINK V. GEORGIA STAGES, INC., 35 F.SUPP.  437. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, AS SUPERINTENDENT OF INSURANCE FOR THE STATE OF NEW YORK,
IS THE STATUTORY LIQUIDATOR OF AUTO MUTUAL INDEMNITY COMPANY, AN
INSOLVENT MUTUAL INSURANCE COMPANY, ORGANIZED UNDER THE LAWS OF NEW
YORK.  HE BROUGHT THIS SUIT IN THE SUPERIOR COURT OF GEORGIA AGAINST
RESPONDENTS, WHO ARE RESIDENTS OF GEORGIA AND POLICYHOLDERS IN THE
COMPANY, TO RECOVER ASSESSMENTS ALLEGED TO BE DUE BY VIRTUE OF THEIR
MEMBERSHIP IN IT.  THE SUPREME COURT OF GEORGIA AFFIRMED THE JUDGMENT
OF THE TRIAL COURT, DISMISSING THE PETITION ON DEMURRERS OF THE SEVERAL
RESPONDENTS.  191 GA. 502, 13 S.E.2D 337.  WE GRANTED CERTIORARI, 313
U.S. 555, BECAUSE OF THE ASSERTED DENIAL BY GEORGIA OF FULL FAITH AND
CREDIT TO CERTAIN STATUTES AND JUDICIAL PROCEEDINGS IN NEW YORK, UNDER
WHICH THE ASSESSMENT WAS LEVIED. 

THE RELEVANT FACTS SET OUT IN THE AMENDED PETITION ARE AS FOLLOWS:
THE INDEMNITY COMPANY, ORGANIZED IN 1932 UNDER ARTICLE 10-B OF THE NEW
YORK INSURANCE LAW, WAS, ON APPLICATION OF THE SUPERINTENDENT OF
INSURANCE, PLACED IN LIQUIDATION BY ORDER OF THE NEW YORK SUPREME COURT
ON NOVEMBER 24, 1937.  UPON FURTHER PROCEEDINGS, PURSUANT TO SEC. 422
OF THE NEW YORK INSURANCE LAW, THE COURT ORDERED, AUGUST 12, 1938, THAT
EACH MEMBER OF THE INDEMNITY COMPANY, DURING THE YEAR PRIOR TO NOVEMBER
10, 1937, SHOULD PAY ASSESSMENTS IN SPECIFIED AMOUNTS AGGREGATING 40%
OF PREMIUMS EARNED BY THE COMPANY DURING THAT YEAR.  THE ORDER DIRECTED
THAT THE MEMBERS SHOW CAUSE ON A SPECIFIED DATE WHY THEY SHOULD NOT BE
HELD LIABLE TO PAY AND WHY THE SUPERINTENDENT SHOULD NOT HAVE JUDGMENT
FOR SUCH ASSESSMENTS.  PURSUANT TO SEC. 422 AND THE ORDER, THE
SUPERINTENDENT MAILED NOTICE OF THE ORDER TO EACH POLICYHOLDER,
INCLUDING RESPONDENTS.  NONE OF RESPONDENTS ENTERED AN APPEARANCE.  IT
IS ALLEGED THAT ALL "WERE POLICYHOLDERS AND MEMBERS OF THE COMPANY"
DURING THE YEAR MENTIONED; THAT AT THE TIME WHEN EACH PURCHASED HIS
POLICY AND BECAME A MEMBER THERE WAS IN FORCE SEC. 346 OF THE NEW YORK
INSURANCE LAW, WHICH UNDER NEW YORK STATUTES AND JUDICIAL DECISIONS
BECAME A PART OF THE INSURANCE CONTRACT, BINDING UPON EACH
POLICYHOLDER.  SECTION 346 PROVIDES THAT EVERY MUTUAL INSURANCE COMPANY
"SHALL IN ITS BY-LAWS AND POLICIES FIX THE CONTINGENT MUTUAL LIABILITY
OF THE MEMBERS FOR THE PAYMENT OF LOSSES AND EXPENSES NOT PROVIDED FOR
BY ITS ADMITTED ASSETS" TO A SPECIFIED EXTENT, AND THAT "ALL
ASSESSMENTS, WHETHER LEVIED BY THE BOARD OF DIRECTORS, BY THE
SUPERINTENDENT OF INSURANCE IN THE LIQUIDATION OF THE CORPORATION, OR
OTHERWISE, SHALL BE FOR NO GREATER AMOUNT THAN THAT SPECIFIED IN THE
POLICY AND BY-LAWS."  IT IS FURTHER ALLEGED THAT THE ASSESSMENT MADE
AGAINST RESPONDENTS WAS FOR THEIR PRO RATA SHARE OF THE 40% ASSESSMENT
LEVIED BY ORDER OF THE COURT PURSUANT TO THE STATUTES OF NEW YORK AND
THE BY-LAWS OF THE COMPANY, AND WAS CONFIRMED AS TO MEMBERS, INCLUDING
RESPONDENTS, BY THE ORDER OF NOVEMBER 17, 1938.  THE FORM OF POLICY
ACQUIRED BY RESPONDENTS IS BY REFERENCE MADE A PART OF THE PETITION. 

THE SUPREME COURT OF GEORGIA, CONSTRUING THE AMENDED PETITION AS A
WHOLE, TOOK ITS AVERMENT THAT RESPONDENTS "WERE POLICYHOLDERS AND
MEMBERS OF THE COMPANY" TO MEAN THAT THEY WERE MEMBERS BECAUSE THEY
WERE POLICYHOLDERS.  THAT CONSTRUCTION HAS NOT BEEN CHALLENGED AND WE
ADOPT IT HERE.  THE COURT ACCEPTED THE ALLEGATIONS OF THE MEANING AND
EFFECT OF THE NEW YORK STATUTES AND JUDICIAL DECISIONS AS CORRECT, BUT
HELD THAT RESPONDENTS, NONE OF WHOM WAS MADE A PARTY TO THE NEW YORK
PROCEEDINGS BY SERVICE OF PROCESS, WERE NOT CONCLUDED BY THE NEW YORK
ORDERS AND STATUTES ON THE QUESTION WHETHER THEIR RELATION AS
POLICYHOLDERS TO THE COMPANY WAS SUCH AS TO SUBJECT THEM TO LIABILITY. 

EXAMINING THE CONTRACT EMBODIED IN THE POLICIES, THE COURT FOUND THAT
ALTHOUGH THE NAME OF THE COMPANY CONTAINED THE WORD "MUTUAL" THE
CONTRACTS OF INSURANCE WERE WITHOUT ANY TERM OR PROVISION PURPORTING TO
MAKE THE POLICYHOLDER A MEMBER OF A MUTUAL COMPANY OR TO SUBJECT HIM TO
ASSESSMENT.  EACH POLICY PROVIDED THAT THE INSURED AGREES THAT IT
"EMBODIES ALL AGREEMENTS EXISTING BETWEEN HIMSELF AND THE COMPANY OR
ANY OF ITS AGENTS RELATING TO THIS INSURANCE."  PRINTED ON THE BACK OF
EACH POLICY BUT NOT REFERRED TO IN THE CONTRACT WAS A "NOTICE TO
POLICYHOLDERS" THAT "THE INSURED IS HEREBY NOTIFIED THAT BY VIRTUE OF
THIS POLICY HE IS A MEMBER OF THE AUTO MUTUAL INDEMNITY COMPANY," AND
THAT "THE CONTINGENT LIABILITY OF THE NAMED INSURED UNDER THIS POLICY
SHALL BE LIMITED TO ONE YEAR FROM THE EXPIRATION OR CANCELLATION HEREOF
AND SHALL NOT EXCEED THE LIMITS PROVIDED BY THE INSURANCE LAW OF THE
STATE OF NEW YORK," THERE BEING ON THE FACE OF THE POLICY NO REFERENCE
TO ANY CONTINGENT LIABILITY OR ASSESSMENT OR TO ANY LAW PROVIDING FOR
SUCH.  THE PETITION DOES NOT MAKE IT CLEAR WHERE THE POLICIES WERE
DELIVERED TO RESPONDENTS, AND THE COURT HELD THAT IN THE ABSENCE OF A
SHOWING TO THE CONTRARY THEY WERE GOVERNED BY GEORGIA LAW. 

APPLYING TO THIS STATE OF FACTS THE LAW AND POLICY OF GEORGIA DERIVED
FROM ITS STATUTES AND JUDICIAL DECISIONS, THE COURT HELD THAT THE
RELATION BETWEEN THE INSURED AND THE COMPANY WAS THAT OF CONTRACT, THAT
THE WHOLE CONTRACT WAS EMBODIED IN THE STIPULATIONS APPEARING ON THE
FACE OF THE POLICY, AND THAT IT DID NOT BY ITS PROVISIONS MAKE
RESPONDENTS MEMBERS OF THE COMPANY OR SUBJECT THEM TO ASSESSMENT IN
ACCORDANCE WITH THE LAWS OF NEW YORK OR OTHERWISE.  PETITIONER
CHALLENGES THE JUDGMENT ON THE GROUND THAT IT FAILS TO ACCORD TO THE
NEW YORK ORDERS AND STATUTES THE FULL FAITH AND CREDIT TO WHICH THEY
ARE ENTITLED UNDER ARTICLE IV, SEC. 1 OF THE CONSTITUTION. 

WHILE URGING IN BRIEF AND ARGUMENT THAT ALL THOSE WHO ARE SHOWN TO BE
MEMBERS OF THE INDEMNITY COMPANY ARE BOUND BY THE NEW YORK ADJUDICATION
AS TO THE NECESSITY FOR AND AMOUNT OF THE ASSESSMENT, PETITIONER DOES
NOT SPECIFICALLY URGE THAT THE NEW YORK PROCEEDINGS HAVE ESTABLISHED
THE PERSONAL LIABILITY OF RESPONDENTS FOR THE ASSESSMENTS WHICH HAVE
BEEN ORDERED.  HE COULD NOT WELL DO SO, FOR THE PROCEEDING IN THE NEW
YORK COURTS TO DETERMINE WHAT JUDGMENTS SHOULD BE ENTERED AGAINST THE
POLICYHOLDERS, INCLUDING NONRESIDENTS, AND THE JUDGMENTS ACTUALLY
ENTERED, DO NOT APPEAR TO HAVE BEEN MADE A PART OF THE PRESENT RECORD. 
SEE IN RE AUTO MUTUAL INDEMNITY CO., 14 N.Y.S.2D 601.  IN ANY CASE, IT
SUFFICES FOR PRESENT PURPOSES TO SAY THAT NEW YORK DOES NOT ATTRIBUTE
ANY SUCH EFFECT TO THE JUDGMENTS OF HER COURTS RENDERED AGAINST ABSENT
NONRESIDENT DEFENDANTS.  SEE KITTREDGE V. GRANNIS, 244 N.Y. 182, 192
96, 155 N.E. 93; GEARY V. GEARY, 272 N.Y. 390, 398, 6 N.E.2D 67; CF.
POPE V. HECKSCHER, 266 N.Y. 114, 194 N.E. 53; HOOD V. GUARANTY TRUST
CO., 270 N.Y. 17, 200 N.E. 55.  SUCH WAS THE RULING IN THE NEW YORK
PROCEEDING FOR THE LIQUIDATION OF THE INDEMNITY COMPANY WITH WHICH WE
ARE HERE CONCERNED.  SEE IN RE AUTO MUTUAL INDEMNITY CO., SUPRA, 611,
WHERE THE REFEREE'S OPINION STATES:  "  ...  NO PERSONAL JUDGMENT WILL
BE ORDERED AGAINST NON-RESIDENT MEMBERS OR POLICYHOLDERS WHO HAVE NOT
APPEARED GENERALLY OR BEEN SERVED PERSONALLY WITH PROCESS WITHIN THE
STATE, ALTHOUGH, AS HEREINABOVE SET FORTH, THEY ARE BOUND BY THE
FINDING OF THE NECESSITY FOR THE ASSESSMENT AND THE AMOUNT THEREOF." 

IT IS A FAMILIAR RULE THAT THOSE WHO BECOME STOCKHOLDERS IN A
CORPORATION SUBJECT THEMSELVES TO LIABILITY FOR ASSESSMENT WHEN MADE IN
CONFORMITY TO THE STATUTES OF THE STATE OF ITS ORGANIZATION, ALTHOUGH
THEY ARE NOT MADE PARTIES TO THE PROCEEDING FOR LEVYING IT.  HAWKINS V.
GLENN, 131 U.S. 319; HANCOCK NATIONAL BANK V. FARNUM, 176 U.S. 640;
BERNHEIMER V. CONVERSE, 206 U.S. 516; CONVERSE V. HAMILTON, 224 U.S.
243, 260; SELIG V. HAMILTON, 234 U.S. 652; MARIN V. AUGEDAHL, 247 U.S.
142; BRODERICK V. ROSNER, 294 U.S. 629; CHANDLER V. PEKETZ, 297 U.S.
609.  WHETHER WE SUPPORT THESE LEGAL CONSEQUENCES BY REFERENCE TO
CONSENT OF THE STOCKHOLDER OR TO HIS ASSUMPTION OF A CORPORATE
RELATIONSHIP SUBJECT TO THE REGULATORY POWER OF THE STATE OF
INCORPORATION, IN EITHER CASE THE PROCEDURE CONFORMS TO ACCEPTED
PRINCIPLES, INVOLVES NO WANT OF DUE PROCESS, AND IS ENTITLED TO FULL
FAITH AND CREDIT SO FAR AS THE NECESSITY AND AMOUNT OF THE ASSESSMENT
ARE CONCERNED.  SEE CHRISTOPHER V. BRUSSELBACK, 302 U.S. 500, AND CASES
CITED.  THE LIKE PRINCIPLE HAS BEEN CONSISTENTLY APPLIED TO MUTUAL
INSURANCE ASSOCIATIONS, WHERE THE FACT THAT THE POLICYHOLDERS WERE
MEMBERS WAS NOT CONTESTED.  ROYAL ARCANUM V. GREEN, 237 U.S. 531;
MODERN WOODMEN V. MIXER, 267 U.S. 544.  THE SUPREME COURT OF GEORGIA
FOUND IT UNNECESSARY TO CONSIDER THE APPLICATION OF THESE AUTHORITIES
TO THE PRESENT CASE, SINCE IT DECIDED THAT RESPONDENTS, BY ACQUIRING
THE PARTICULAR FORM OF POLICY ISSUED BY THE INDEMNITY COMPANY, DID NOT
BECOME MEMBERS OF IT. 

IT IS EVIDENT THAT IF THE CONSTITUTIONAL AUTHORITY OF THE INDEMNITY
COMPANY TO STAND IN JUDGMENT FOR ITS ABSENT MEMBERS TURNS ON THEIR
CONSENT OR THEIR ASSUMPTION OF MEMBERSHIP IN THE COMPANY, RESPONDENTS,
WHO WERE NOT PARTIES TO THE NEW YORK PROCEEDINGS, MAY DEFEND ON THE
GROUND THAT THEY NEVER BECAME MEMBERS BECAUSE THEY HAVE DONE NO ACT
SIGNIFYING SUCH CONSENT OR ASSUMPTION.  AFTER AN ASSESSMENT HAS BEEN
LAWFULLY LEVIED ON THE MEMBERS OF A CORPORATION, IT IS STILL OPEN TO
ANY WHO WERE NOT PARTIES TO THE ASSESSMENT PROCEEDING TO DEFEND ON THE
GROUND THAT THEY NEVER BECAME STOCKHOLDERS.  GREAT WESTERN TELEGRAPH
CO. V. PURDY, 162 U.S. 329, 336-37; COE V. ARMOUR FERTILIZER WORKS, 237
U.S. 413, 423; ROYAL ARCANUM V. GREEN, 237 U.S. 531, 544; CHANDLER V.
PEKETZ, 297 U.S. 609, 611; CF. HAWKINS V. GLENN, 131 U.S. 319, 335. 
ORDINARILY THIS MEANS NO MORE THAN THAT THEY HAVE NOT ACQUIRED OR OWNED
STOCK IN THE CORPORATION DURING THE RELEVANT PERIOD.  FOR A NECESSARY
CONSEQUENCE OF BECOMING A STOCKHOLDER IS THE ASSUMPTION OF THOSE
OBLIGATIONS WHICH, BY THE LAWS GOVERNING THE ORGANIZATION AND
MANAGEMENT OF THE CORPORATION, ATTACH TO STOCK OWNERSHIP.    OTHER
CONSIDERATIONS MAY BE SIGNIFICANT IN DETERMINING WHETHER A MEMBERSHIP
IN A MUTUAL INSURANCE COMPANY HAS BEEN EFFECTED THROUGH ACQUISITION OF
A POLICY.  A MERE CONTRACT IS NOT A SHARE OF STOCK AND WHEN MADE WITH A
CORPORATION OR ASSOCIATION DOES NOT NECESSARILY CONNOTE MEMBERSHIP IN
IT.  A POLICY OF INSURANCE MAY BE A CONTRACT WHOSE TERMS PURPORT TO
DEFINE COMPLETELY THE RELATIONSHIP AND OBLIGATIONS OF THE PARTIES. 
HERE THE POLICY, WHICH WAS ON ITS FACE A CONTRACT AND NOTHING MORE,
STIPULATED ONLY FOR OBLIGATIONS TO BE PERFORMED BY THE INSURER UPON
PAYMENT OF THE PRESCRIBED PREMIUM.  THE POLICY'S STIPULATIONS CONTAINED
NO PROVISION MAKING THE INSURED A MEMBER OF THE ASSOCIATION OR
SUBJECTING HIM TO LIABILITY FOR ASSESSMENT AS SUCH.  ALTHOUGH THE
COMPANY WAS DENOMINATED "MUTUAL," THAT TERM DOES NOT NECESSARILY
SIGNIFY THAT POLICYHOLDERS ARE MEMBERS OR SUBJECT TO ASSESSMENT. 

WITHOUT THE COMMAND OF SOME CONSTITUTIONALLY CONTROLLING STATUTE, THE
GEORGIA COURT WAS FREE TO INTERPRET THE OBLIGATION OF THE POLICY AS
LIMITED TO THOSE STIPULATIONS EXPRESSED ON ITS FACE AND AS EXCLUDING
ANY STIPULATION FOR MEMBERSHIP OR FOR LIABILITY TO ASSESSMENT WHICH THE
CONTRACT DID NOT MENTION.  PETITIONER FINDS SUCH A COMMAND IN THE NEW
YORK STATUTES, WHICH, HE ASSERTS, MAKE ALL POLICYHOLDERS LIABLE TO
ASSESSMENT WITHOUT THE AID OF ANY STIPULATION TO THAT EFFECT IN THE
POLICY.  HE RELIES ON THE FULL FAITH AND CREDIT CLAUSE TO EXACT
OBEDIENCE TO THE STATUTES. 

EVERY STATE HAS AUTHORITY UNDER THE CONSTITUTION TO ESTABLISH LAWS,
THROUGH BOTH ITS JUDICIAL AND ITS LEGISLATIVE ARMS, WHICH ARE
CONTROLLING UPON ITS INHABITANTS AND DOMESTIC AFFAIRS.  WHEN IT IS
DEMANDED IN THE DOMESTIC FORUM THAT THE OPERATION OF THOSE LAWS BE
SUPPLANTED BY THE STATUTE OF ANOTHER STATE, THAT FORUM IS NOT BOUND,
APART FROM THE FULL FAITH AND CREDIT CLAUSE, TO YIELD TO THE DEMAND,
AND THE LAW OF NEITHER CAN, BY ITS OWN FORCE, DETERMINE THE CHOICE OF
LAW FOR THE OTHER.  MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268, 272;
PACIFIC INS. CO. V. COMMISSION, 306 U.S. 493, 500; KRYGER V. WILSON,
242 U.S. 171, 176; UNION TRUST CO. V. GROSMAN, 245 U.S. 412; GRIFFIN V.
MCCOACH, 313 U.S. 498. 

TO THE EXTENT THAT GEORGIA MUST GIVE FULL FAITH AND CREDIT TO THE NEW
YORK STATUTES AND JUDICIAL PROCEEDINGS, IT MUST BE DENIED AUTHORITY TO
ADJUDICATE THE MEANING AND DOMESTIC EFFECT UNDER ITS OWN LAWS OF A
CONTRACT ENTERED INTO BY ITS OWN INHABITANTS AND CONTAINING NO
STIPULATION THAT THEY SHOULD BE BOUND BY OBLIGATIONS EXTRINSICALLY
IMPOSED BY NEW YORK LAW.  BUT THE FULL FAITH AND CREDIT CLAUSE IS NOT
AN INEXORABLE AND UNQUALIFIED COMMAND.  IT LEAVES SOME SCOPE FOR STATE
CONTROL WITHIN ITS BORDERS OF AFFAIRS WHICH ARE PECULIARLY ITS OWN. 
THIS COURT HAS OFTEN RECOGNIZED THAT, CONSISTENTLY WITH THE APPROPRIATE
APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE, THERE ARE LIMITS TO
THE EXTENT TO WHICH THE LAWS AND POLICY OF ONE STATE MAY BE
SUBORDINATED TO THOSE OF ANOTHER.  ALASKA PACKERS ASSN. V. COMMISSION,
294 U.S. 532; PACIFIC INS. CO. V. COMMISSION, 306 U.S. 493; KLAXON CO.
V. STENTOR CO., 313 U.S. 487, 497-98; SEE MILWAUKEE COUNTY V. WHITE
CO., 296 U.S. 268, 273. 

IT WAS THE PURPOSE OF THAT PROVISION TO PRESERVE RIGHTS ACQUIRED OR
CONFIRMED UNDER THE PUBLIC ACTS AND JUDICIAL PROCEEDINGS OF ONE STATE
BY REQUIRING RECOGNITION OF THEIR VALIDITY IN OTHERS.  BUT THE VERY
NATURE OF THE FEDERAL UNION OF STATES, TO EACH OF WHICH IS RESERVED THE
SOVEREIGN RIGHT TO MAKE ITS OWN LAWS, PRECLUDES RESORT TO THE
CONSTITUTION AS THE MEANS FOR COMPELLING ONE STATE WHOLLY TO
SUBORDINATE ITS OWN LAWS AND POLICY CONCERNING ITS PECULIARLY DOMESTIC
AFFAIRS TO THE LAWS AND POLICY OF OTHERS.  WHEN SUCH CONFLICT OF
INTEREST ARISES, IT IS FOR THIS COURT TO RESOLVE IT BY DETERMINING HOW
FAR THE FULL FAITH AND CREDIT CLAUSE DEMANDS THE QUALIFICATION OR
DENIAL OF RIGHTS ASSERTED UNDER THE LAWS OF ONE STATE, THAT OF THE
FORUM, BY THE PUBLIC ACTS AND JUDICIAL PROCEEDINGS OF ANOTHER.  SEE
ALASKA PACKERS ASSN. V. COMMISSION, 294 U.S. 532, 547; PACIFIC INS. CO.
V. COMMISSION, 306 U.S. 493. 

WHERE A RESIDENT OF ONE STATE HAS BY STIPULATION OR STOCK OWNERSHIP
BECOME A MEMBER OF A CORPORATION OR ASSOCIATION OF ANOTHER, THE STATE
OF HIS RESIDENCE MAY HAVE NO SUCH DOMESTIC INTEREST IN PREVENTING HIM
FROM FULFILLING THE OBLIGATIONS OF MEMBERSHIP AS WOULD ADMIT OF A
RESTRICTED APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE.  BUT IT
DOES HAVE A LEGITIMATE INTEREST IN DETERMINING WHETHER ITS RESIDENTS
HAVE ASSENTED TO MEMBERSHIP OBLIGATIONS SOUGHT TO BE IMPOSED ON THEM BY
EXTRASTATE LAW TO WHICH THEY ARE NOT OTHERWISE SUBJECT. 

WITHOUT THE AID OF AGREEMENT OR CONSENT, THE LAWS OF THE STATE OF
ORGANIZATION CAN BE IMPOSED ON GEORGIA COURTS AND POLICYHOLDERS ONLY SO
FAR AS THE FULL FAITH AND CREDIT CLAUSE COMPELS IT.  THE UNDUE
EXTENSION OF THE STATUTES AND AUTHORITY OF A STATE BEYOND ITS OWN
BORDERS, BY THE EXPEDIENT OF RENDERING A JUDGMENT AGAINST NON-CITIZENS
OVER WHOSE PERSONS OR PROPERTY THE STATE HAS ACQUIRED JURISDICTION, MAY
INFRINGE DUE PROCESS.  HOME INS. CO. V. DICK, 281 U.S. 397.  LIKE, BUT
MORE COGENT, REASONS MAY CALL FOR THE RESTRICTION OF THE FULL FAITH AND
CREDIT CLAUSE AS THE INSTRUMENT FOR CONTROLLING THE LAW AND POLICY OF
ONE STATE, WITH RESPECT TO ITS DOMESTIC AFFAIRS, BY THE STATUTORY
COMMAND OF ANOTHER. 

THE INTERPRETATION AND LEGAL EFFECT OF POLICIES OF INSURANCE ENTERED
INTO BY THE INHABITANTS OF GEORGIA, WHO ARE SUED UPON THEM IN ITS
COURTS, ARE PECULIARLY MATTERS OF LOCAL CONCERN.  GRIFFIN V. MCCOACH,
313 U.S. 498.  WERE IT NOT FOR THE NEW YORK STATUTE, THERE COULD BE NO
QUESTION OF GEORGIA'S AUTHORITY TO ADJUDICATE THE RIGHTS AND
OBLIGATIONS ARISING UNDER THE POLICIES.  AND AS WE HAVE SEEN, THE ONLY
BASIS FOR THE IMPOSITION BY NEW YORK OF ITS COMMAND ON THE GEORGIA
COURT AND POLICYHOLDERS IS THE ASSUMPTION BY THE LATTER OF MEMBERSHIP
IN THE NEW YORK COMPANY.  BUT THIS, IN THE CIRCUMSTANCES OF THIS CASE,
DEPENDS UPON THE MEANING AND EFFECT OF ALL THE PROVISIONS APPEARING ON
THE POLICIES WITH RESPECT TO THE ASSUMPTION OF MEMBERSHIP, WHICH IS FOR
GEORGIA TO DETERMINE.  THERE BEING NO QUESTION OF EVASION OF
CONSTITUTIONAL OBLIGATION, WE ACCEPT THAT DETERMINATION AS ONE OF
DOMESTIC LAW AND POLICY WHICH THE FULL FAITH AND CREDIT CLAUSE DOES NOT
OVERRIDE.  AFFIRMED. 
..END :









U.S. V. KANSAS FLOUR CORP., 314 U.S. 212 


NO. 45.  ARGUED NOVEMBER 21, 1941.  - DECIDED DECEMBER 8, 1941.  - 92
CT.CLS.  390, REVERSED. 


CONTRACTS FOR THE PURCHASE OF FLOUR BY THE GOVERNMENT INCLUDED AS PART
OF THE PRICE ANY FEDERAL TAX THERETOFORE IMPOSED BY CONGRESS APPLICABLE
TO THE MATERIAL PURCHASED, AND PROVIDED THAT IF ANY PROCESSING OR OTHER
TAX WERE IMPOSED OR "CHANGED BY CONGRESS" AFTER THE DATE SET FOR
OPENING OF BIDS AND WERE PAID TO THE GOVERNMENT BY THE CONTRACTOR ON
THE SUPPLIES CONTRACTED FOR, THEN THE PRICE WOULD BE "INCREASED OR
DECREASED" ACCORDINGLY.  HELD, THAT THE SUBSEQUENT DECISION IN UNITED
STATES V. BUTLER, 297 U.S. 1, ADJUDGING THE PROCESSING TAX VOID, AND
THE RECOGNITION OF THAT HOLDING THROUGH PROVISIONS OF THE REVENUE ACT
OF 1936, AMOUNTED TO A "CHANGE" OF THE VENDOR'S TAX LIABILITY MADE "BY
CONGRESS," WITHIN THE MEANING OF THE CONTRACT, AND THAT AMOUNTS PAID BY
THE GOVERNMENT AS PART OF THE CONTRACT PRICE TO OFFSET PROCESSING TAXES
PRESUMPTIVELY PAYABLE BY THE VENDOR BUT WHICH BECAUSE OF THAT DECISION
THE VENDOR ESCAPED, WERE RECOVERABLE BY THE UNITED STATES.  P. 217. 

UNITED STATES V. KANSAS FLOUR MILLS CORPORATION. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 313 U.S. 554, TO REVIEW A DECISION OF THE COURT OF CLAIMS
AWARDING DAMAGES TO THE FLOUR MILLS COMPANY ON A CONTRACT FOR THE SALE
OF FLOUR AND BRAN, AND DENYING THE RIGHT OF THE UNITED STATES TO OFFSET
PAYMENTS MADE BY IT ON EARLIER CONTRACTS TO COVER PROCESSING TAXES
WHICH WERE SUBSEQUENTLY HELD TO BE UNCONSTITUTIONAL SO THAT THE VENDOR
WAS NOT OBLIGED TO PAY THEM. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

BETWEEN MAY, 1935, AND JANUARY 6, 1936, THE RESPONDENT ENTERED INTO
EIGHT CONTRACTS FOR THE SALE OF FLOUR TO THE UNITED STATES.  DELIVERIES
WERE DULY MADE AND THE CONTRACT PRICE WAS PAID. 

EACH OF THE EIGHT CONTRACTS PROVIDED: 

"PRICES SET FORTH HEREIN INCLUDE ANY FEDERAL TAX HERETOFORE IMPOSED
BY THE CONGRESS WHICH IS APPLICABLE TO THE MATERIAL PURCHASED UNDER
THIS CONTRACT.  IF ANY SALES TAX, PROCESSING TAX, ADJUSTMENT CHARGE OR
OTHER TAXES OR CHARGES ARE IMPOSED OR CHANGED BY THE CONGRESS AFTER THE
DATE SET FOR THE OPENING OF THE BID UPON WHICH THIS CONTRACT IS BASED
AND MADE APPLICABLE DIRECTLY UPON THE PRODUCTION, MANUFACTURE, OR SALE
OF THE SUPPLIES COVERED BY THIS CONTRACT, AND ARE PAID TO THE
GOVERNMENT BY THE CONTRACTOR ON THE ARTICLES OR SUPPLIES HEREIN
CONTRACTED FOR, THEN THE PRICES NAMED IN THIS CONTRACT WILL BE
INCREASED OR DECREASED ACCORDINGLY, AND ANY AMOUNT DUE THE CONTRACTOR
AS A RESULT OF SUCH CHANGE WILL BE CHARGED TO THE GOVERNMENT AND
ENTERED ON VOUCHERS (OR INVOICES) AS SEPARATE ITEMS." 

UNDER THE TERMS OF THE AGRICULTURAL ADJUSTMENT ACT,  FN1  PROCESSING
TAXES WERE DUE, IN RESPECT OF THE FLOUR SOLD, AGGREGATING $28,419.20. 

IN 1936, THE RESPONDENT ENTERED INTO FOUR CONTRACTS FOR THE SALE OF
FLOUR AND BRAN TO THE UNITED STATES FOR A TOTAL PRICE OF $23,288.11. 
THE COMMODITIES WERE DELIVERED AND VOUCHERS FOR THE PURCHASE PRICE
TENDERED TO THE GENERAL ACCOUNTING OFFICE.  PAYMENT WAS WITHHELD BY THE
COMPTROLLER GENERAL, WHO NOTIFIED THE RESPONDENT THAT THE GOVERNMENT
HAD OVERPAID IT IN THE SUM OF $28,419.20. 

THE RESPONDENT HAD OBTAINED AN INJUNCTION AGAINST THE COLLECTION OF
ANY PROCESSING TAXES FROM IT AND, AS A RESULT OF THE DECISION IN UNITED
STATES V. BUTLER, 297 U.S. 1, PAID NO PROCESSING TAXES ON THE WHEAT
USED IN THE MANUFACTURE OF FLOUR COVERED BY THE 1935 CONTRACTS. 

THE RESPONDENT SUED IN THE COURT OF CLAIMS TO RECOVER THE PURCHASE
PRICE UNDER THE FOUR 1936 CONTRACTS, AND CONTESTED THE OFFSETS CLAIMED
BY THE GOVERNMENT ARISING OUT OF THE EIGHT 1935 CONTRACTS.  JUDGMENT
WAS RENDERED IN FAVOR OF THE RESPONDENT FOR $23,288.11.  92 CT. CLS.
390.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTION
FN2  AND OF THE NUMBER OF PENDING CASES INVOLVING THE SAME QUESTION. 
WE ARE OF OPINION THAT THE RESPONDENT WAS NOT ENTITLED TO RECOVER. 

THE CONTRACTS ARE TO BE CONSTRUED IN THE LIGHT OF THE RELATIONS
BETWEEN THE PARTIES AT THE TIME THEY WERE EXECUTED.  THE AGRICULTURAL
ADJUSTMENT ACT DID NOT EXEMPT A VENDOR TO THE UNITED STATES FROM THE
PROCESSING TAX; AND A TREASURY REGULATION REQUIRED THAT HE PAY THE
TAX.  FN3  THE QUOTED CLAUSE SHOWS THAT THIS TAX WAS SPECIFICALLY IN
THE MINDS OF THE PARTIES, FOR IT WAS STIPULATED THAT IT WAS INCLUDED IN
THE PRICE BID.  THE GOVERNMENT STOOD IN A DUAL RELATION TO THE
RESPONDENT.  IT BECAME, AT THE SAME TIME, A PURCHASER AT THE NAMED
PRICE AND ALSO A CLAIMANT OF THE PROCESSING TAX UPON THE MATERIAL
PURCHASED.  THE STIPULATION WAS EVIDENTLY MADE IN VIEW OF THE FACTS
THAT THE PURCHASING OFFICER COULD NOT BUY THE GOODS TAX-FREE AND THAT
THE GOVERNMENT DESIRED THAT THE PRICE TO IT SHOULD BE EX-TAX.  TO
ACCOMPLISH THIS THE SALE PRICE WAS PRO TANTO OFFSET BY THE AMOUNT OF
THE TAX.  PLAINLY, IF THE UNITED STATES HAD NOT BEEN THOUGHT ENTITLED
TO COLLECT THE TAX, THE BID PRICE WOULD NOT HAVE BEEN ACCEPTABLE. 
PLAINLY, ALSO, IF THE RESPONDENT HAD NOT BEEN THOUGHT LIABLE FOR THE
TAX, THE BID PRICE WOULD HAVE BEEN LESS.  FN4  AS DISCLOSED BY THE
CONTRACTS, THE UNDERSTANDING WAS THAT THE PRICE WOULD HAVE BEEN LESS BY
THE AMOUNT OF THE TAX.  THE RESPONDENT DISPUTES THIS, CONTENDING THAT
WE CANNOT SAY HOW MUCH OF THE TAX IT WAS WILLING TO ABSORB IN ORDER TO
OBTAIN THE CONTRACTS; THAT IT MAY HAVE BEEN MAKING THE SALES AT AN
ACTUAL LOSS.  BUT THIS IS NOT THE THEORY OF THE CONTRACTS.  THEY
PROVIDE THAT IF, IN FUTURE, ANY EXISTING TAX DESCRIBED THEREIN IS
CHANGED BY CONGRESS, THE PRICE NAMED IN EACH CONTRACT "WILL BE
INCREASED OR DECREASED ACCORDINGLY."  THIS DOES NOT MEAN, AS CONTENDED
BY RESPONDENT, THAT THE AMOUNT OF INCREASE OR DECREASE IS AN UNKNOWN
QUANTITY TO BE MADE DEFINITE AND CERTAIN BY PROOF.  IT MEANS THAT THE
AMOUNT OF ANY INCREASE IN TAX SHALL BE ADDED TO, AND THE AMOUNT OF ANY
DECREASE SUBTRACTED FROM, THE CONTRACT PRICE.  THIS VIEW IS
STRENGTHENED BY THE PROVISION FOR SEPARATE BILLING OF THE INCREASE, IF
ANY. 

THE RESPONDENT, HOWEVER, ARGUES THAT, UNDER ANY CONSTRUCTION, THE
GOVERNMENT IS NOT ENTITLED TO MAINTAIN ITS SET-OFF, FIRST, BECAUSE THE
CONTRACTS CONTAIN NO UNDERTAKING BY RESPONDENT THAT IT WILL PAY THE
TAX, AND, SECONDLY, THAT, EVEN IF THEY DO, THE STIPULATION FOR
REDUCTION OF PRICE APPLIES ONLY TO CHANGES BY CONGRESS AND EXCLUDES
RELIEF FROM THE TAX BY AN ADJUDICATION THAT THE EXACTION IS
UNCONSTITUTIONAL. 

IN SUPPORT OF THE FIRST PROPOSITION, THE RESPONDENT RELIES ON
NUMEROUS DECISIONS HOLDING TAX CLAUSES IN PRIVATE CONTRACTS NOT TO
REQUIRE ADJUSTMENT OF THE CONTRACT PRICE AS A RESULT OF THE DECISION IN
THE BUTLER CASE, SUPRA.  FN5  THESE GO ON THE ABSENCE OF AN EXPRESS
PROVISION RESPECTING THE CONSTITUTIONAL VALIDITY AND UPON THE OMISSION
OF THE PARTIES TO BILL THE TAX SEPARATELY FROM THE PURCHASE PRICE.  WE
THINK THEY ARE INAPPLICABLE IN THE PRESENT CASE SINCE THE TAX CLAUSE
HERE HAD A PURPOSE DIFFERENT FROM THOSE IN PRIVATE CONTRACTS.  AS WE
HAVE SAID, THE PURPOSE HERE WAS TO DEPRIVE EITHER PARTY OF THE
ADVANTAGE OR DISADVANTAGE RESULTING FROM THE INCIDENCE OF THE TAX; AND,
THEREFORE, IT WAS SOUGHT TO ELIMINATE THE EFFECT OF THE EXACTION ON THE
CONTRACT PRICE. 

IN THE CASE OF PRIVATE CONTRACTS, THE VENDEES PURCHASE FOR RESALE AND
THE TAX BURDEN ASSUMED IS PASSED ON TO THEIR CUSTOMERS.  THE FACT THAT
THE PROCESSOR - THE VENDOR - IS PROTECTED FROM THE PAYMENT OF THE TAX
BY INJUNCTION DOES NOT REDUCE THE PRICE TO THE VENDEE OR TO PURCHASERS
FROM HIM.  THE COURTS WILL NOT PERMIT THE UNJUST ENRICHMENT INVOLVED IN
RECOVERY BY THE VENDEE OF THE AMOUNT OF TAX WHICH HE HAS PASSED ON TO
HIS CUSTOMERS.  FN6  IN THE CONTRACTS IN QUESTION, THE GOVERNMENT DID
NOT BUY FOR RESALE.  UNLESS IT RECEIVED THE TAX IT SUFFERED A DEFINITE
DISADVANTAGE.  FN7  ITS PURPOSE, AS SHOWN BY THE CONTRACTS, WAS TO
BALANCE THE TAX ELEMENT IN THE PRICE PAID WITH THE TAX COLLECTED.  FN8
THE GOVERNMENT, WHICH COULD NOT PASS ON THE TAX ON RESALE, WAS THUS
PROTECTED, NOT AGAINST A FALL IN THE MARKET PRICE BUT AGAINST A LOSS IN
ITS TAX REVENUES.  IN CASES OF PRIVATE SALES, THE PROCESSOR'S
INJUNCTION AGAINST COLLECTION OF THE TAX, AS HELD BY THE CASES CITED,
WORKED NO HARM TO HIS VENDEE.  A SIMILAR INJUNCTION, IN THE CASE OF
GOVERNMENT CONTRACTS, WOULD LEAVE THE PRICE TO THE GOVERNMENT AT THE
HIGHER LEVEL REFLECTING THE TAX AND DEPRIVE THE GOVERNMENT OF THE
RECIPROCAL BENEFIT FLOWING FROM COLLECTION OF THE TAX. 

IN ITS SECOND POSITION, THE RESPONDENT ATTEMPTS TO MEET WHAT HAS BEEN
SAID AS TO THE INEQUITY OF ITS RETAINING THE FULL PRICE, WHEN IT
ESCAPES PAYING THE TAX, WITH THE ARGUMENT THAT THE RESULT IS INEVITABLE
UNDER THE CONTRACTS.  IT REFERS TO THE FACT THAT IT HAD ALREADY
OBTAINED AN INJUNCTION AGAINST THE COLLECTION OF THE PROCESSING TAX
WHEN SOME OF THE 1935 CONTRACTS WERE MADE, AND ASSERTS THAT, IF THE
GOVERNMENT DESIRED TO PROVIDE AGAINST A DECISION THAT THE TAXING ACT
WAS UNCONSTITUTIONAL, THIS COULD READILY HAVE BEEN DONE BY THE ADDITION
OF A SINGLE PHRASE. 

AS WE HAVE SAID, THERE IS RESPECTABLE AUTHORITY FOR THE POSITION THAT
TAX CLAUSES IN PRIVATE CONTRACTS DO NOT REACH A JUDICIAL DECISION OF
INVALIDITY OF THE STATUTE.  WE THINK, HOWEVER, THESE DECISIONS HAVE NO
APPLICATION IN THE PRESENT INSTANCE.  HERE, LEGISLATION RECOGNIZING THE
DECISION IN UNITED STATES V. BUTLER, SUPRA, AND IMPOSING TAXES ON THE
ENRICHMENT OF THOSE WHO PASSED ON THE AMOUNT OF THE TAX WITHOUT HAVING
TO PAY IT, MAY PROPERLY BE SAID TO HAVE BEEN A CHANGE OF THE TAX BY
CONGRESS WITHIN THE TERMS OF THE CONTRACTS. 

THE DECISION IN THE BUTLER CASE WAS RENDERED JANUARY 6, 1936.  IT IS
TRUE THAT AFTER THAT DECISION A TAXPAYER'S RIGHT TO AN INJUNCTION
AGAINST THE COLLECTION OF THE TAX WAS CLEAR.  FN9 BUT, BY THE REVENUE
ACT OF 1936,  FN10  WHICH BECAME A LAW JUNE 22, 1936, CONGRESS NOT ONLY
RECOGNIZED THE EFFECT OF THAT DECISION AS DOING AWAY WITH THE TAX IN
QUESTION BUT LEGISLATED WITH RESPECT TO THE CONSEQUENT RIGHTS AND
REMEDIES OF THOSE WHO HAD PAID THE TAX AND THE LIABILITY OF THOSE WHO
HAD PASSED ON ITS BURDEN AND ESCAPED PAYMENT. 

BY TITLE III A TAX IS LAID ON THE UNJUST ENRICHMENT CONSEQUENT UPON
THE PASSING ON TO CUSTOMERS THE BURDEN OF UNPAID PROCESSING TAXES.  IN
SEC. 501(B)(I)(2) AND (J)(2), CONGRESS DEFINES THE DATE OF TERMINATION
OF THE TAX AS "IN THE CASE OF A FEDERAL EXCISE TAX HELD INVALID BY A
DECISION OF THE SUPREME COURT, THE DATE OF SUCH DECISION."  IN TITLE IV
THERE IS A PROVISION RELATIVE TO FLOOR STOCK TAXES WHICH RECOGNIZES THE
INVALIDITY OF THE AGRICULTURAL ADJUSTMENT ACT BY REENACTING THE REFUND
PROVISIONS OF THAT ACT IN RESPECT OF TRANSACTIONS PRIOR TO JANUARY 6,
1936, THE DATE OF THE BUTLER DECISION.  SEC. 601(A).  THE TITLE DEFINES
A TAXABLE COMMODITY AS ONE ON WHICH A PROCESSING TAX WAS PROVIDED FOR
AS OF JANUARY 5, 1936, THE DAY BEFORE THE BUTLER DECISION.  SEC.
602(C)(1). 

TITLE VII MAKES PROVISION FOR THE REFUND OF PROCESSING TAXES
COLLECTED UNDER THE AGRICULTURAL ADJUSTMENT ACT AND IS A RECOGNITION BY
CONGRESS THAT THE TAXES WERE INVALID. 

THUS, A CHANGE IN RESPONDENT'S TAX LIABILITY HAS BEEN RECOGNIZED AND
CONFIRMED BY CONGRESS.  EVEN THOUGH THIS LEGISLATIVE ACTION WAS A
CONFIRMATION OF OR ACQUIESCENCE IN THE BUTLER DECISION, AND ALTHOUGH
ITS EFFECT MAY HAVE BEEN MERELY CUMULATIVE, IT AMOUNTED TO A CHANGE
MADE BY CONGRESS IN RESPONDENT'S LIABILITY FOR THE TAX, WITHIN THE
MEANING OF THE CONTRACTS. 

THE JUDGMENT IS REVERSED. 

FN1  U.S.C. SUPP. V, TIT. 7, SEC. 609. 

FN2  UNITED STATES V. HAGAN & CUSHING CO., 115 F.2D 849; ISMERTHINCKE
MILLING CO. V. UNITED STATES, 90 CT. CLS. 27; UNITED STATES V. AMERICAN
PACKING & PROVISION CO., 122 F.2D 445. 

FN3  REGULATIONS 81, ART. 9, UNDER THE AGRICULTURAL ADJUSTMENT ACT. 

FN4  COMPARE UNITED STATES V. GLENN L. MARTIN CO., 308 U.S. 62. 

FN5  MOUNDRIDGE MILLING CO. V. CREAM OF WHEAT CORP., 105 F.2D 366;
CONSOLIDATED FLOUR MILLS V. PH. ORTH CO., 114 F.2D 898; UNITED STATES
V. AMERICAN PACKING & PROVISION CO., 122 F.2D 445; CITY BAKING CO. V.
CASCADE MILLING & ELEVATOR CO., 24 F.SUPP.  950; G. S. JOHNSON CO. V.
N. SAUER MILLING CO., 148 KAN. 861(1938), 84 P.2D 934; SPARKS MILLING
CO. V. POWELL, 283 KY. 669(1940), 143 S.W.2D 75; CRETE MILLS V. SMITH
BAKING CO., 136 NEB. 448(1939), 286 N.W. 333. 

FN6  SEE THE CASES CITED NOTE 5.  THE RESPONDENT URGES THAT THE
UNJUST ENRICHMENT TAX IMPOSED BY TITLE III OF THE REVENUE ACT OF
1936(49 STAT. 1734) DESTROYS THE EQUITY OF THE GOVERNMENT'S CASE, BUT
IF RESPONDENT IS REQUIRED TO REDUCE ITS PRICE BY THE AMOUNT OF ITS
UNPAID PROCESSING TAX IT WILL NOT BE SUBJECT TO THE UNJUST ENRICHMENT
TAX ON THESE TRANSACTIONS.  SEE SECS. 501(B)(2) AND 501(J)(4). 

FN7  IN UNITED STATES V. AMERICAN PACKING & PROVISION CO., 122 F.2D
445, THE GOVERNMENT WAS HELD ENTITLED TO MAINTAIN A SET-OFF ASSERTED
UNDER CONDITIONS LIKE THOSE HERE INVOLVED ON THE GROUND THAT THE VENDOR
HAD RECEIVED MONEY FROM THE GOVERNMENT WHICH IN EQUITY AND GOOD
CONSCIENCE IT SHOULD REPAY. 

FN8  COMPARE UNITED STATES V. COWDEN MFG. CO., 312 U.S. 34, 36-37. 

FN9  RICKERT RICE MILLS, INC. V. FONTENOT, 297 U.S. 110. 

FN10  49 STAT. 1648. 
..END :












LISENBA V. CALIFORNIA, 314 U.S. 219 


NOS. 4 AND 5.  REARGUED OCTOBER 14, 15, 1941.  - DECIDED DECEMBER 8,
1941.  - 89 P.2D 39 - 14 CAL.2D 403, 94 P.2D 569, AFFIRMED. 


1.  THE CLAIM THAT DISCRIMINATION BY POLICE OFFICERS IN TREATING SOME
PERSONS ILLEGALLY AND OTHERS LEGALLY VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, HELD UNSUPPORTED.  P. 226. 

2.  IN THE SENTENCING OF ACCOMPLICES, THE PRACTICE OF TAKING INTO
CONSIDERATION THEIR AID TO THE STATE AS WITNESSES INVOLVES NO DENIAL OF
DUE PROCESS TO A CONVICTED CONFEDERATE.  P. 227. 

3.  WHETHER THE TESTIMONY OF AN ACCOMPLICE IN THIS CASE WAS
CORROBORATED AS REQUIRED BY THE STATE LAW WAS A QUESTION FOR DECISION
BY THE COURTS OF THE STATE.  P. 227. 

4.  WHERE IT WAS ALLEGED AS A BASIS OF RELEASE BY HABEAS CORPUS IN A
STATE COURT THAT TESTIMONY OF AN ACCOMPLICE LEADING TO THE CONVICTION
OF THE PETITIONER WAS KNOWN BY THE PROSECUTING OFFICERS TO BE FALSE AND
WAS INDUCED BY THEIR PROMISES AND THREATS; AND AFFIDAVITS OF THE
ACCOMPLICE, MADE SEVERAL YEARS AFTER THE TRIAL, WERE PRODUCED TO
SUBSTANTIATE THE ALLEGATION, THE APPRAISAL OF THE AFFIDAVITS WITH
OTHER, CONFLICTING EVIDENCE IN THE RECORD WAS A MATTER FOR THE STATE
COURTS.  P. 226. 

5.  THE ADMISSIBILITY IN A MURDER TRIAL OF EVIDENCE OF ANOTHER
SIMILAR CRIME, TO ESTABLISH INTENT, DESIGN AND SYSTEM ON THE PART OF
THE ACCUSED, IS LEFT BY THE FOURTEENTH AMENDMENT TO BE DETERMINED BY
THE STATE LAW AND THE STATE COURTS.  P. 227. 

6.  ACTION OF STATE COURTS IN DENYING A CONTINUANCE TO AN ACCUSED IN
A CRIMINAL TRIAL - HELD NOT REVIEWABLE BY THIS COURT UNDER THE
FOURTEENTH AMENDMENT.  P. 228. 

7.  WHERE IT WAS PART OF THE STATE'S CASE THAT LIVE RATTLESNAKES WERE
TO BE USED IN PURSUANCE OF A CONSPIRACY TO MURDER, AND TWO SUCH SNAKES
WERE BROUGHT TO THE COURT ROOM TO BE IDENTIFIED BY A WITNESS WHO SOLD
THEM TO ONE OF THE CONSPIRATORS, THE PROPRIETY OF ADMITTING SUCH
EVIDENCE WAS FOR THE STATE COURTS TO DECIDE; THE CLAIM THAT ITS
INTRODUCTION MADE THE TRIAL SO UNFAIR AS TO DENY DUE PROCESS OF LAW, IS
UNSOUND.  P. 228. 

8.  THE FACT THAT A PERSON ACCUSED OF A STATE OFFENSE WAS, SOME TIME
BEFORE MAKING A CONFESSION, SUBJECTED TO RESTRAINTS AND OTHER ACTS OF
STATE OFFICERS WHICH WERE IN THEMSELVES BREACHES OF THE STATE LAW AND
POSSIBLE VIOLATIONS OF DUE PROCESS, MAY BE RELEVANT TO THE QUESTION
WHETHER THE USE OF THE CONFESSION AT HIS TRIAL WAS A DENIAL OF DUE
PROCESS BUT IS NOT CONCLUSIVE OF THAT ISSUE.  P. 235. 

9.  THE FACT THAT A CONFESSION HAS BEEN CONCLUSIVELY ADJUDGED BY THE
STATE COURTS TO BE ADMISSIBLE IN EVIDENCE UNDER THE STATE LAW DOES NOT
ANSWER THE QUESTION WHETHER, IN VIEW OF THE CIRCUMSTANCES IN WHICH IT
WAS MADE, ITS USE AT THE TRIAL WAS A DENIAL OF DUE PROCESS.  P. 236. 

10.  THE STATE RULE AGAINST ADMITTING A CONFESSION WHICH WAS NOT
VOLUNTARILY MADE SEEKS TO EXCLUDE FALSE EVIDENCE.  THE AIM OF DUE
PROCESS IN FORBIDDING ITS USE IS TO PREVENT FUNDAMENTAL UNFAIRNESS OF
USING SUCH EVIDENCE, WHETHER TRUE OR FALSE.  THE CRITERIA FOR DECISION
IN THE ONE CASE OR THE OTHER MAY, OR MAY NOT, BE THE SAME, ACCORDING TO
THE CIRCUMSTANCES.  P. 236. 

11.  TO DETERMINE A CLAIM THAT DUE PROCESS WAS VIOLATED BY THE USE IN
EVIDENCE IN A STATE COURT OF A CONFESSION ALLEGED TO HAVE BEEN OBTAINED
BY COERCION OR PROMISES, THIS COURT MUST MAKE AN INDEPENDENT
EXAMINATION OF THE RECORD.  P. 237. 

12.  THE COURT IS UNABLE TO FIND THAT THE CONFESSIONS IN THIS CASE
WERE INDUCED BY COERCION OR PROMISES, AND THAT THEIR USE IN EVIDENCE
THEREFORE VITIATED THE TRIAL, THE EVIDENCE BEING CONFLICTING AND THE
STATE TRIBUNALS HAVING FOUND THAT THE CONFESSIONS WERE FREE AND
VOLUNTARY AND WERE THEREFORE ADMISSIBLE UNDER THE STATE LAW, AND THE
STATE SUPREME COURT HAVING ALSO FOUND THAT THEIR USE CONFORMED TO DUE
PROCESS.  P. 238. 

13.  WHERE A PRISONER HELD INCOMMUNICADO IS SUBJECTED TO QUESTIONING
BY OFFICERS FOR LONG PERIODS, AND DEPRIVED OF THE ADVICE OF COUNSEL,
THE COURT WILL SCRUTINIZE THE RECORD WITH CARE TO DETERMINE WHETHER THE
USE OF HIS CONFESSION WAS CONTRARY TO DUE PROCESS.  P. 240. 

14.  ON THE FACTS, AND IN THE LIGHT OF THE FINDINGS IN THE STATE
COURTS, THIS COURT CAN NOT HOLD THAT THE ILLEGAL CONDUCT IN WHICH THE
LAW ENFORCEMENT OFFICERS OF CALIFORNIA INDULGED BY THE PROLONGED
QUESTIONING OF THE PRISONER BEFORE ARRAIGNMENT AND IN THE ABSENCE OF
COUNSEL, OR THEIR LATER QUESTIONING, COERCED THE CONFESSIONS, THE USE
OF WHICH IS COMPLAINED OF AS AN INFRINGEMENT OF DUE PROCESS.  P. 240. 

LISENBA V. CALIFORNIA. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

89 P.2D 39; 14 CAL.2D 403, 94 P.2D 569, AFFIRMED. 

CERTIORARI, 311 U.S. 617, TO REVIEW THE AFFIRMANCE OF OF HABEAS
CORPUS.  THE CASES WERE ARGUED TOGETHER AT THE LAST TERM AND THE
JUDGMENTS WERE AFFIRMED BY AN EQUALLY DIVIDED COURT, 313 U.S. 537.  A
PETITION FOR REHEARING BEFORE A FULL COURT WAS GRANTED; THE AFFIRMANCES
WERE SET ASIDE, AND THE CASES WERE RESTORED TO THE DOCKET FOR
REARGUMENT, 313 U.S. 597. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER WAS CONVICTED OF MURDER, AND SENTENCED TO DEATH, IN
THE SUPERIOR COURT OF CALIFORNIA FOR LOS ANGELES COUNTY.  THE SUPREME
COURT OF CALIFORNIA AFFIRMED THE JUDGMENT MARCH 21, 1939, TWO JUDGES
DISSENTING.  FN1  A REHEARING WAS GRANTED, THE CASE WAS REARGUED AND,
OCTOBER 5, 1939, THE DECISION WAS REAFFIRMED AND THE FORMER OPINION
ADOPTED AND AMPLIFIED, TWO JUSTICES DISSENTING.  FN2  NO QUESTION
ARISING UNDER THE CONSTITUTION OF THE UNITED STATES HAD BEEN RAISED OR
DECIDED.  IN A SECOND PETITION FOR REHEARING, THE PETITIONER, FOR THE
FIRST TIME, ASSERTED THAT HIS CONVICTION VIOLATED THE FOURTEENTH
AMENDMENT.  NOVEMBER 3, 1939, THE COURT RULED:  "THE PETITION FOR A
REHEARING HEREIN IS DENIED." 

THE CHIEF JUSTICE OF THE STATE ALLOWED AN APPEAL, NOVEMBER 6, 1939,
AND, NOVEMBER 8, 1939, EXECUTED A CERTIFICATE IN WHICH HE ENUMERATED
THE CONSTITUTIONAL QUESTIONS PRESENTED BY THE SECOND PETITION FOR
REHEARING; STATED THAT THE COURT ENTERTAINED THE PETITION, AND
EXPLICITLY OVERRULED EACH OF THE CONTENTIONS MADE THEREIN; CERTIFIED
THAT THE DECISION DENYING REHEARING "IS TO BE INTERPRETED AND
CONSIDERED AS HOLDING AGAINST THE APPELLANT'S CONTENTION THAT HIS
RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES  ...  WERE VIOLATED"; AND CONCLUDED: "IT IS ORDERED THAT THIS
CERTIFICATE BE FILED IN THIS COURT AND MADE A PART OF THE RECORD ON
APPEAL TO THE SUPREME COURT OF THE UNITED STATES."  ON THE RECORD SO
MADE, THIS COURT HAS JURISDICTION TO REVIEW THE JUDGMENT.  FN3 

THE APPELLANT DID NOT DRAW IN QUESTION THE CONSTITUTIONAL VALIDITY OF
ANY STATUTE OF CALIFORNIA.  WE, THEREFORE, DISMISSED THE APPEAL  FN4
BUT, TREATING THE PAPERS AS A PETITION FOR CERTIORARI,  FN5  WE GRANTED
THE WRIT.  THIS CASE IS NO. 4. 

OCTOBER 31, 1939, THE PETITIONER PRAYED THE SUPREME COURT OF
CALIFORNIA FOR A WRIT OF HABEAS CORPUS ON THE THEORY THAT HIS TRIAL AND
CONVICTION HAD DEPRIVED HIM OF HIS LIFE WITHOUT DUE PROCESS.  HE
SUBMITTED AFFIDAVITS OF ONE HOPE, WHO HAD TURNED STATE'S EVIDENCE
AGAINST HIM.  IN THESE, HOPE ASSERTED THAT HIS TESTIMONY WAS FALSE, HAD
BEEN COERCED BY THREATS, AND INDUCED BY PROMISES OF LENIENCY AND BY
FRAUD. 

NOVEMBER 9, 1939, HABEAS CORPUS WAS DENIED, WITHOUT PREJUDICE.  THE
CHIEF JUSTICE OF CALIFORNIA ALLOWED AN APPEAL AND MADE, AND ORDERED
FILED OF RECORD, A CERTIFICATE RESPECTING THE CONSTITUTIONAL QUESTIONS
PRESENTED AND DECIDED BY THE COURT, SIMILAR TO THAT ENTERED IN NO. 4. 
WE FOLLOWED THE SAME COURSE AS IN NO. 4, AND THE CASE IS HERE AS NO.
5. 

THE APPEALS WERE PRESENTED IN FORMA PAUPERIS.  THE TYPEWRITTEN RECORD
IS OF GREAT LENGTH.  IN THE BELIEF THAT ONLY BY BRIEFS AND ORAL
ARGUMENT, AND ON A RECORD PRINTED BY THE COURT, COULD PROPER
CONSIDERATION AND DECISION BE HAD OF CERTAIN APPARENTLY IMPORTANT
QUESTIONS PRESENTED, WE ISSUED THE WRITS.  THE CASES WERE ARGUED AT THE
OCTOBER 1940 TERM, AND THE JUDGMENTS WERE AFFIRMED BY A DIVIDED COURT. 
A PETITION FOR REHEARING BEFORE A FULL COURT WAS GRANTED, THE
AFFIRMANCES SET ASIDE, AND THE CAUSES SET FOR REHEARING AT THIS TERM. 
FN6 

THE PETITIONER, WHO USED, AND WAS COMMONLY KNOWN BY, THE NAME OF
ROBERT S. JAMES (AND WILL BE SO CALLED), AND ONE HOPE WERE INDICTED,
MAY 6, 1936, FOR THE MURDER OF JAMES' WIFE ON AUGUST 5, 1935.  HOPE
PLEADED GUILTY AND WAS SENTENCED TO LIFE IMPRISONMENT.  JAMES PLEADED
NOT GUILTY, WAS TRIED, CONVICTED, AND SENTENCED TO DEATH.  THE TRIAL
WAS A LONG ONE IN WHICH THE PETITIONER MADE OBJECTIONS TO RULINGS AND
TO THE CHARGE, WHICH RAISE QUESTIONS OF STATE LAW DECIDED BY THE
OPINION BELOW, WITH WHICH WE HAVE NO CONCERN.  WE SHALL REFER ONLY TO
SO MUCH OF THE EVIDENCE AS BEARS UPON THE CONSTITUTIONAL QUESTIONS OPEN
HERE. 

THE STATE'S THEORY IS THAT THE PETITIONER CONCEIVED THE PLAN OF
MARRYING, INSURING HIS WIFE'S LIFE BY POLICIES PROVIDING DOUBLE
INDEMNITY FOR ACCIDENTAL DEATH, KILLING HER IN A MANNER TO GIVE THE
APPEARANCE OF ACCIDENT, AND COLLECTING DOUBLE INDEMNITY. 

JAMES EMPLOYED MARY E. BUSCH AS A MANICURIST IN HIS BARBER SHOP IN
MARCH, 1935, AND, ABOUT A MONTH LATER, WENT THROUGH A MARRIAGE CEREMONY
WITH HER, WHICH WAS NOT LEGAL, AS HE THEN HAD A LIVING WIFE.  WHILE
THEY WERE AFFIANCED, INSURANCE WAS NEGOTIATED ON HER LIFE, WITH JAMES
AS BENEFICIARY.  UPON THE ANNULMENT OF THE EARLIER MARRIAGE, A LAWFUL
CEREMONY WAS PERFORMED.  THE PETITIONER MADE SURE THAT THE POLICIES
WERE NOT ANNULLED BY THE FACT THAT, WHEN THEY WERE ISSUED, MARY HAD NOT
BEEN HIS LAWFUL WIFE. 

THE ALLEGATION IS THAT JAMES ENLISTED ONE HOPE IN A CONSPIRACY TO DO
AWAY WITH MARY AND COLLECT AND DIVIDE THE INSURANCE ON HER LIFE.  HOPE
TESTIFIED THAT, AT JAMES' INSTIGATION, HE PROCURED RATTLESNAKES WHICH
WERE TO BITE AND KILL MARY; THAT THEY APPEARED NOT TO BE SUFFICIENTLY
VENOMOUS FOR THE PURPOSE, BUT HE ULTIMATELY PURCHASED OTHERS AND
DELIVERED THEM TO JAMES; THAT JAMES, ON AUGUST 4, 1935, BLINDFOLDED HIS
WIFE'S EYES, TIED HER TO A TABLE, HAD HOPE BRING ONE OF THE SNAKES INTO
THE ROOM, AND CAUSED THE REPTILE TO BITE HER FOOT; THAT, DURING THE
NIGHT, JAMES TOLD HOPE THE BITE DID NOT HAVE THE DESIRED EFFECT; AND,
IN THE EARLY MORNING OF AUGUST 5, HE TOLD HOPE THAT HE WAS GOING TO
DROWN HIS WIFE; THAT LATER HE SAID TO HOPE, "THAT IS THAT"; AND STILL
LATER, AT HIS REQUEST, HOPE AIDED HIM IN CARRYING THE BODY TO THE YARD,
AND JAMES PLACED THE BODY FACE DOWN AT THE EDGE OF A FISH POND WITH THE
HEAD AND SHOULDERS IN THE WATER. 

JAMES WAS AT HIS BARBER SHOP ON AUGUST 5.  ON THAT EVENING HE TOOK
TWO FRIENDS HOME FOR DINNER.  WHEN THEY ARRIVED THE HOUSE WAS DARK AND
EMPTY, AND, UPON A SEARCH OF THE GROUNDS, HIS WIFE'S BODY WAS FOUND IN
THE POSITION INDICATED.  AN AUTOPSY SHOWED THE LUNGS WERE ALMOST FILLED
WITH WATER.  THE LEFT GREAT TOE SHOWED A PUNCTURE AND THE LEFT LEG WAS
GREATLY SWOLLEN AND ALMOST BLACK.  NOTHING CAME OF THE INVESTIGATION OF
THE DEATH. 

JAMES ATTEMPTED TO COLLECT DOUBLE INDEMNITY; THE INSURERS REFUSED TO
PAY; SUITS WERE INSTITUTED AND ONE OF THEM SETTLED.  AS A RESULT OF
THIS ACTIVITY, A FRESH INVESTIGATION OF MARY JAMES' DEATH WAS
INSTITUTED.  ON APRIL 19, 1936, OFFICERS ARRESTED JAMES FOR THE CRIME
OF INCEST.  HE WAS BOOKED ON THIS CHARGE ON THE MORNING OF APRIL 21,
WAS GIVEN A HEARING AND REMANDED TO JAIL.  ON MAY 2 AND 3 HE MADE
STATEMENTS RESPECTING HIS WIFE'S DEATH TO THE PROSECUTING OFFICIALS. 

AT THE TRIAL, IN ADDITION TO THAT OF HOPE, TESTIMONY WAS ADDUCED AS
TO THE FINDING AND CONDITION OF THE BODY, OTHER EVIDENCE TO CONNECT
JAMES WITH THE DEATH, AND EXPERT TESTIMONY THAT THE CONDITION OF THE
LEFT LEG COULD BE ATTRIBUTED TO RATTLESNAKE BITES.  THE PURCHASE OF
SNAKES BY HOPE WAS PROVED BY HIM AND SEVERAL OTHER WITNESSES, ONE OF
WHOM SAID HE SOLD THE TWO SNAKES TO HOPE, ONE OF WHICH, HOPE CLAIMED,
HAD BITTEN MARY JAMES.  TWO SNAKES WERE BROUGHT INTO COURT, WHICH THE
WITNESS IDENTIFIED AS THOSE SOLD TO HOPE AND BY HOPE RESOLD TO THE
WITNESS. 

JAMES' STATEMENTS WERE OFFERED IN EVIDENCE.  OBJECTION WAS MADE THAT
THEY WERE NOT VOLUNTARY.  BEFORE THEY WERE ADMITTED THE TRIAL JUDGE
HEARD TESTIMONY OFFERED BY THE STATE AND THE DEFENDANT ON THAT ISSUE. 
HE RULED THAT THE CONFESSIONS WERE ADMISSIBLE, AND THEY WERE RECEIVED
IN EVIDENCE. 

THE STATE OFFERED EVIDENCE WITH RESPECT TO THE DEATH OF A FORMER WIFE
OF JAMES, IN 1932.  THIS TENDED TO PROVE THAT, WHILE DRIVING DOWN
PIKE'S PEAK, THEIR AUTOMOBILE WENT OFF THE ROAD.  JAMES WENT FOR AID. 
WHEN THE PERSONS CALLED UPON REACHED THE AUTOMOBILE THEY FOUND JAMES'
WIFE LYING PARTLY OUTSIDE THE CAR WITH HER HEAD BADLY CRUSHED AND A
BLOODY HAMMER IN THE BACK OF THE CAR.  JAMES APPEARED UNHURT.  THE
WOMAN RECOVERED FROM HER INJURIES, BUT, SHORTLY AFTERWARDS, WAS
DISCOVERED, BY JAMES AND ANOTHER MAN, DROWNED IN THE BATHTUB IN A HOUSE
JAMES HAD TEMPORARILY LEASED AT COLORADO SPRINGS.  JAMES COLLECTED
DOUBLE INDEMNITY FROM INSURANCE COMPANIES FOR HER DEATH, THE INSURANCE
HAVING BEEN PLACED AT ABOUT THE TIME HE MARRIED HER AND HER DEATH
HAVING OCCURRED WITHIN A FEW MONTHS THEREAFTER.  THIS EVIDENCE WAS
ADMITTED OVER OBJECTION AND, AT THE CLOSE OF THE STATE'S CASE,
DEFENDANT'S COUNSEL MOVED FOR AN ADJOURNMENT SO THAT THEY MIGHT TAKE
DEPOSITIONS OF WITNESSES IN COLORADO.  THE COURT REFUSED THE
APPLICATION FOR WANT OF A SUFFICIENT SHOWING. 

THE PETITIONER'S CONTENTIONS, BASED UPON THE FOURTEENTH AMENDMENT,
ARE:  THAT THE CONDUCT OF THE PROSECUTING OFFICIALS AND POLICE OFFICERS
DENIED HIM THE EQUAL PROTECTION OF THE LAWS; THAT HIS CONVICTION
DEPRIVED HIM OF HIS LIFE WITHOUT DUE PROCESS, BECAUSE THE TESTIMONY OF
HOPE, AN ACCOMPLICE, WAS NOT CORROBORATED AS REQUIRED BY THE PENAL CODE
OF CALIFORNIA, AND WAS, THEREFORE, INSUFFICIENT TO SUSTAIN A
CONVICTION; BECAUSE HOPE'S AFFIDAVITS FILED SINCE THE TRIAL SHOWED THAT
HIS TESTIMONY WAS OBTAINED BY DECEIT, FRAUD, COLLUSION, AND COERCION,
AND WAS KNOWN TO THE PROSECUTOR TO BE FALSE, AND HENCE THE TRIAL WAS A
MERE PRETENSE; BECAUSE THE ALLEGED OCCURRENCES IN COLORADO WERE WHOLLY
DISCONNECTED FROM THE CRIME CHARGED, AND PETITIONER WAS AFFORDED NO
OPPORTUNITY TO ANSWER THE STATE'S EVIDENCE RESPECTING THEM; BECAUSE THE
PRODUCTION OF THE RATTLESNAKES IN THE COURT WAS SOLELY FOR THE PURPOSE
OF INFLAMING THE JURY; AND BECAUSE PHYSICAL VIOLENCE, THREATS, AND
OTHER COERCIVE MEANS PRODUCED THE CONFESSIONS, AND DENIAL OF REQUESTED
OPPORTUNITY TO CONSULT COUNSEL PRECEDED AND ACCOMPANIED THEIR
PROCUREMENT. 

FIRST.  THE CONTENTION THAT ILLEGAL CONDUCT ON THE PART OF THE
STATE'S OFFICERS DEPRIVED PETITIONER OF THE EQUAL PROTECTION OF THE
LAWS HARDLY NEEDS NOTICE.  THE CLAIM IS THAT WHERE OFFICERS VIOLATE THE
LAW SO THAT SOME DEFENDANTS ARE TREATED AS WAS PETITIONER, AND OTHERS
ARE TREATED AS THE LAW REQUIRES, INEQUALITY AND DISCRIMINATION RESULTS
WHICH DENIES EQUAL PROTECTION.  THE CONTENTION IS FRIVOLOUS.  THE
RECORD IS BARE OF ANY PROOF TO SUPPORT IT. 

SECOND.  THE PETITIONER ASSERTS THAT HOPE'S TESTIMONY WAS NOT
CORROBORATED.  UNDER CALIFORNIA LAW, THE UNCORROBORATED TESTIMONY OF AN
ACCOMPLICE IS NOT SUFFICIENT TO SUSTAIN A CONVICTION.  FN7 PETITIONER
CONTENDS THAT, IN CONSIDERATION OF HOPE'S CONFESSING AND TURNING
STATE'S EVIDENCE, LENIENCY WAS EXTENDED HIM BY THE COURT.  PETITIONER
SAYS THAT HOPE'S AFFIDAVITS SHOW THAT THE PROSECUTING OFFICIALS WELL
KNEW THAT HOPE'S TESTIMONY WAS A FABRICATION; THAT HE WAS PERSUADED SO
TO TESTIFY BY FRAUD, PROMISES OF LENIENCY, AND THREATS, AND THE TRIAL
WAS A MERE SHAM.  FN8 

THESE CONTENTIONS NEED BUT BRIEF NOTICE.  THE FOURTEENTH AMENDMENT
DOES NOT FORBID A STATE COURT TO CONSTRUE AND APPLY ITS LAWS WITH
RESPECT TO THE EVIDENCE OF AN ACCOMPLICE.  THERE IS NO ADEQUATE SHOWING
THAT THERE WAS A CORRUPT BARGAIN WITH HOPE, AND THE PRACTICE OF TAKING
INTO CONSIDERATION, IN SENTENCING AN ACCOMPLICE, HIS AID TO THE STATE
IN TURNING STATE'S EVIDENCE CAN BE NO DENIAL OF DUE PROCESS TO A
CONVICTED CONFEDERATE.  HOPE'S AFFIDAVITS NOT ONLY WERE PREPARED AFTER
THE STATE SUPREME COURT HAD PASSED UPON THE CASE AND ITS OPINION HAD
BEEN PUBLISHED BUT AFTER THE LAPSE OF NEARLY THREE YEARS FROM THE
TRIAL.  THEY COULD, THEREFORE, BE CONSIDERED ONLY IN THE HABEAS CORPUS
CASE.  THE STATE CONTENDS THAT IT HAD NO OPPORTUNITY TO ANSWER THEM. 
THIS IS CONTESTED BY THE PETITIONER.  IN ANY EVENT, IT WAS STIPULATED
THAT THE RECORD ON APPEAL IN THE OTHER CASE SHOULD BE PART OF THE
RECORD ON THE HABEAS CORPUS HEARING; AND COMPARISON OF THE TESTIMONY AT
THE TRIAL WITH THE ALLEGATIONS OF THE AFFIDAVITS RAISES SERIOUS DOUBTS
AS TO THEIR TRUTHFULNESS.  THE APPRAISAL OF THE CONFLICTING EVIDENCE
WAS FOR THE COURT BELOW.  EVEN IF ITS REFUSAL TO BELIEVE HOPE'S
DEPOSITIONS WERE ERRONEOUS, THE ERROR WOULD BE NO MORE A DENIAL OF DUE
PROCESS THAN WAS ITS APPROVAL, ON APPEAL, OF THE TRIAL JUDGE'S REFUSAL
TO DIRECT A VERDICT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE. 

THIRD.  TESTIMONY WAS ADMITTED CONCERNING THE DEATH OF JAMES' FORMER
WIFE, ON THE WIDELY RECOGNIZED PRINCIPLE THAT SIMILAR BUT DISCONNECTED
ACTS MAY BE SHOWN TO ESTABLISH INTENT, DESIGN, AND SYSTEM.  FN9  THE
FOURTEENTH AMENDMENT LEAVES CALIFORNIA FREE TO ADOPT A RULE OF
RELEVANCE WHICH THE COURT BELOW HOLDS WAS APPLIED HERE IN ACCORDANCE
WITH THE STATE'S LAW. 

THE INSISTENCE THAT THE TRIAL JUDGE'S REFUSAL TO GRANT A CONTINUANCE,
SO THAT PETITIONER COULD TAKE ANSWERING DEPOSITIONS, WAS A DENIAL OF
DUE PROCESS GOES EVEN FARTHER AFIELD.  COUNSEL HAD NOTICE AT THE
OPENING OF THE TRIAL, OR SHORTLY THEREAFTER, THAT THE STATE INTENDED TO
INTRODUCE EVIDENCE ON THIS SUBJECT,  - BUT WAITED UNTIL THE STATE HAD
RESTED BEFORE ASKING THE CONTINUANCE.  EVEN THEN THE SHOWING WAS
INADEQUATE AS TO THE IDENTITY OF THE WITNESSES AND THE NATURE OF THE
EXPECTED EVIDENCE.  THE JUDGE, IN THE EXERCISE OF HIS DISCRETION,
DENIED THE MOTION.  THE FOURTEENTH AMENDMENT GIVES THIS COURT NO
MANDATE TO REVIEW HIS ACTION OR INQUIRE WHETHER HE ABUSED HIS
DISCRETION IN SUCH A FIELD.    FOURTH.  A PART OF THE STATE'S CASE WAS
THAT HOPE HAD PURCHASED SNAKES AND BROUGHT THEM TO THE PETITIONER IN
PURSUANCE OF THE CONSPIRACY.  TWO SNAKES WERE BROUGHT INTO THE
COURTROOM TO BE IDENTIFIED BY THE WITNESS WHO SAID HE SOLD THEM TO
HOPE.  THE PETITIONER SAYS THAT THE SOLE PURPOSE OF THE PRODUCTION OF
THE SNAKES WAS TO PREJUDICE THE JURY AGAINST HIM AND THAT THOSE IN THE
COURTROOM, INCLUDING THE JURY, WERE IN A PANIC AS A RESULT OF THE
INCIDENT.  FOR THIS HE CITES CURRENT NEWSPAPER ACCOUNTS AND AFFIDAVITS
OF HIS COUNSEL.  THE STATE DENIES ANY IMPROPER PURPOSE AND, TO REBUT
THE ASSERTIONS OF PETITIONER, RELIES ON A COUNTER-AFFIDAVIT AND A
STATEMENT BY THE TRIAL JUDGE.  THE RECORD DISCLOSES THAT AT A
SUBSEQUENT STAGE OF THE TRIAL THE SNAKES WERE BROUGHT INTO COURT AT THE
DEFENDANT'S REQUEST. 

WE DO NOT SIT TO REVIEW STATE COURT ACTION ON QUESTIONS OF THE
PROPRIETY OF THE TRIAL JUDGE'S ACTION IN THE ADMISSION OF EVIDENCE.  WE
CANNOT HOLD, AS PETITIONER URGES, THAT THE INTRODUCTION AND
IDENTIFICATION OF THE SNAKES SO INFUSED THE TRIAL WITH UNFAIRNESS AS TO
DENY DUE PROCESS OF LAW.  THE FACT THAT EVIDENCE ADMITTED AS RELEVANT
BY A COURT IS SHOCKING TO THE SENSIBILITIES OF THOSE IN THE COURTROOM
CANNOT, FOR THAT REASON ALONE, RENDER ITS RECEPTION A VIOLATION OF DUE
PROCESS. 

FIFTH.  THE IMPORTANT QUESTION IS WHETHER THE USE OF THE CONFESSIONS
RENDERED PETITIONER'S CONVICTION A DEPRIVATION OF HIS LIFE WITHOUT DUE
PROCESS OF LAW.  RECITAL OF THE RELEVANT FACTS IS ESSENTIAL TO A
DECISION. 

THE PETITIONER, WHILE HAVING ALMOST NO FORMAL EDUCATION, IS A MAN OF
INTELLIGENCE AND BUSINESS EXPERIENCE.  AFTER HIS ARREST, ON THE CHARGE
OF INCEST, ON THE MORNING OF SUNDAY, APRIL 19, 1936, HE WAS TAKEN FOR A
SHORT TIME TO THE ADJOINING HOUSE AND SHOWN A DICTAPHONE THERE
INSTALLED.  HE WAS BROUGHT TO THE DISTRICT ATTORNEY'S OFFICES, WHERE HE
WAS LODGED IN THE BUREAU OF INVESTIGATION.  HE SAYS THAT DURING THE TWO
OR THREE HOURS HE STAYED THERE HE WAS NOT QUESTIONED.  HE WAS TAKEN
INTO AN OFFICE WHERE THE DISTRICT ATTORNEY SHOWED HIM A STATEMENT MADE
BY A MISS WRIGHT RESPECTING THE INCEST CHARGE AND ASKED HIM WHAT HE
CARED TO SAY ABOUT IT.  HE REPLIED THAT HE WOULD NOT TALK ABOUT IT.  HE
WAS QUESTIONED FOR ABOUT AN HOUR.  HE SAYS HE WAS ASKED ABOUT HIS
WIFE'S DEATH; OTHERS WHO WERE PRESENT DENY THIS. 

HE WAS HELD IN THE DISTRICT ATTORNEY'S SUITE UNTIL 5 OR 6 O'CLOCK,
WAS GIVEN SUPPER AT A CAFE, AND THEN CONDUCTED TO THE HOUSE NEXT DOOR
TO HIS HOME, WHERE HE ARRIVED ABOUT 7 OR 7:30.  VARIOUS OFFICERS
QUESTIONED HIM THERE, IN RELAYS THROUGHOUT THE NIGHT, CONCERNING HIS
WIFE'S DEATH.  HE SAT IN A CHAIR FULLY DRESSED AND HAD NO SLEEP. 
MONDAY MORNING HE WAS TAKEN OUT FOR BREAKFAST AND WENT WITH THE
OFFICERS TO POINT OUT TO THEM A HOUSE AT 9TH AND ALVARADO STREETS,
AFTER WHICH HE WAS TAKEN TO THE DISTRICT ATTORNEY'S OFFICES.  HE WAS
BROUGHT BACK TO THE HOUSE NEXT DOOR TO HIS HOME, AND THE QUESTIONING
WAS RESUMED, AND CONTINUED UNTIL ABOUT 3 O'CLOCK TUESDAY MORNING, WHEN,
HE SAYS, HE FAINTED; AND OTHERS PRESENT SAY HE FELL ASLEEP AND SLEPT
UNTIL 7 OR 8 O'CLOCK.  AFTER HE HAD BREAKFASTED HE WAS BOOKED AT THE
JAIL, ARRAIGNED BEFORE A MAGISTRATE, AND COMMITTED ON THE INCEST
CHARGE. 

JAMES TESTIFIED THAT ABOUT 10 P.M. MONDAY, APRIL 20, THE OFFICERS
BEGAN TO BEAT HIM; THAT HIS BODY WAS MADE BLACK AND BLUE; THAT THE
BEATING IMPAIRED HIS HEARING, AND CAUSED A HERNIA; THAT LATER THAT
NIGHT AN ASSISTANT DISTRICT ATTORNEY QUESTIONED HIM AND THAT, AFTER
THIS ORDEAL, HE COLLAPSED.  IT IS ADMITTED THAT AN OFFICER SLAPPED HIS
FACE THAT NIGHT.  THIS IS SAID TO HAVE OCCURRED AS THE RESULT OF AN
OFFENSIVE REMARK JAMES MADE CONCERNING HIS WIFE; HE DENIES HAVING MADE
THE REMARK.  IN CORROBORATION OF JAMES' TESTIMONY TWO WITNESSES SAID
THEY NOTICED THAT ONE OR BOTH OF HIS EARS WERE BRUISED AND SWOLLEN WHEN
HE WAS LODGED IN THE JAIL.  ALL OF THIS TESTIMONY IS CONTRADICTED BY
NUMEROUS WITNESSES FOR THE STATE, SAVE ONLY THAT IT IS ADMITTED JAMES
WAS REPEATEDLY AND PERSISTENTLY QUESTIONED AT INTERVALS DURING THE
PERIOD FROM SUNDAY NIGHT UNTIL TUESDAY MORNING.  IT IS TESTIFIED THAT,
EXCEPT FOR THE ONE SLAP, NO ONE LAID A HAND ON JAMES; THAT NO
INDUCEMENT WAS HELD OUT TO HIM; THAT NO THREATS WERE MADE; THAT HE
ANSWERED QUESTIONS FREELY AND INTELLIGENTLY; AND THAT HE WAS AT EASE,
COOL, AND COLLECTED.  HE ADMITS THAT NO PROMISES OR THREATS WERE MADE
OR MALTREATMENT ADMINISTERED ON THE OCCASIONS WHEN HE WAS IN THE
DISTRICT ATTORNEY'S OFFICE.  IT IS SIGNIFICANT THAT JAMES STATED TO ONE
OF THE OTHER OFFICERS THAT OFFICER SOUTHARD HAD SLAPPED HIM AND THAT
WHEN, MAY 2, THE DISTRICT ATTORNEY ASKED HOW HE HAD BEEN TREATED, HE
AGAIN REFERRED TO THE SLAP.  IN NEITHER CASE DID HE SAY ANYTHING OF ANY
OTHER MISTREATMENT.  DURING THE PERIOD APRIL 19-21 JAMES MADE NO
INCRIMINATING ADMISSION OR CONFESSION. 

JAMES SAYS THAT SHORTLY AFTER HIS ARREST ON SUNDAY MORNING, HE ASKED,
AND WAS REFUSED, PERMISSION TO GET INTO TOUCH WITH MR. SILVERMAN, WHO
HAD BEEN HIS ATTORNEY FOR A NUMBER OF YEARS.  THIS IS DENIED.  THERE IS
EVIDENCE THAT HE SAW MR. SILVERMAN ON MONDAY, APRIL 20, AT THE DISTRICT
ATTORNEY'S OFFICE.  MR. SILVERMAN TESTIFIED THAT HE SAW THE PETITIONER
IMMEDIATELY AFTER HIS FORMAL ARREST; THAT HE WAS WITH THE PETITIONER AT
THE ARRAIGNMENT ON TUESDAY, APRIL 21ST; AND AGAIN ON APRIL 25TH IN THE
JAIL.  IT IS NOT SUGGESTED THAT JAMES WAS NOT ALLOWED TO SEE HIS
ATTORNEY AS OFTEN AS HE DESIRED OR THAT ANY OBSTACLE WAS INTERPOSED TO
THE ATTORNEY'S INTERVIEWING HIM BETWEEN APRIL 21 AND MAY 2. 

THERE IS NO CLAIM THAT FROM APRIL 21, WHEN HE WAS LODGED IN THE JAIL,
UNTIL MAY 2, HE WAS INTERVIEWED, QUESTIONED, THREATENED, OR MISTREATED
BY ANYONE.  DURING THIS PERIOD HIS ATTORNEY TOLD HIM THAT HE WOULD BE
INDICTED FOR HIS WIFE'S MURDER AND SHOULD NOT ANSWER ANY QUESTIONS
UNLESS HIS ATTORNEY WAS PRESENT. 

MAY 1, HOPE WAS ARRESTED AND MADE A STATEMENT.  ON THE MORNING OF MAY
2, JAMES WAS BROUGHT FROM HIS CELL TO THE CHAPLAIN'S ROOM IN THE PRISON
AND CONFRONTED WITH HOPE.  AN ASSISTANT DISTRICT ATTORNEY OUTLINED
HOPE'S STORY AND ASKED JAMES WHETHER HE HAD ANYTHING TO SAY, TO WHICH
HE REPLIED:  "NOTHING." 

HE WENT BACK TO HIS CELL AND, ABOUT NOON, AN ORDER OF COURT WAS
OBTAINED TO REMOVE HIM FROM THE PRISON.  HE WAS TAKEN TO HIS FORMER
HOME BY TWO DEPUTY SHERIFFS.  THE EVIDENCE DOES NOT DISCLOSE CLEARLY
EITHER THE PURPOSE OR THE INCIDENTS OF THIS TRIP.  HE WAS THEN BROUGHT
TO THE DISTRICT ATTORNEY'S OFFICE AND THAT OFFICIAL BEGAN TO QUESTION
HIM.  HE REQUESTED THAT HIS ATTORNEY BE SENT FOR.  IN HIS PRESENCE A
TELEPHONE CALL WAS MADE WHICH DISCLOSED THAT MR. SILVERMAN WAS NOT IN
LOS ANGELES.  HE ASKED THAT ANOTHER ATTORNEY BE SUMMONED.  HE STATES
THAT THE DISTRICT ATTORNEY SAID IT WOULD TAKE TOO LONG TO ACQUAINT ANY
OTHER ATTORNEY WITH THE FACTS; OTHERS SAY THAT JAMES DID NOT GIVE THE
NAME OF THE OTHER ATTORNEY HE WANTED AND IT TOOK SOME TIME TO DISCOVER
WHOM HE HAD IN MIND.  THE ATTORNEY WAS NOT SUMMONED. 

THE DISTRICT ATTORNEY AND, AT TIMES, OTHERS QUESTIONED JAMES UNTIL
SUPPER TIME.  SANDWICHES AND COFFEE WERE PROCURED.  JAMES SAYS HE HAD
COFFEE BUT SOMEONE TOOK HIS SANDWICHES.  THERE IS TESTIMONY THAT HE HAD
THEM.  THE QUESTIONING, BASED ON HOPE'S CONFESSION, WAS CONTINUED INTO
THE NIGHT WITHOUT JAMES HAVING REFUSED TO ANSWER QUESTIONS OR HAVING
MADE ANY INCRIMINATING ANSWERS. 

THERE IS A SHARP CONFLICT AS TO HOW THE SESSION TERMINATED.  JAMES
SAYS THAT OFFICER SOUTHARD, WHO HAD STRUCK HIM ON APRIL 20, OCCUPIED
THE ROOM ALONE WITH HIM, ALL OTHERS HAVING LEFT; THAT THE OFFICER TOLD
HIM HE HAD BEEN LYING ALL EVENING AND THAT IF HE DID NOT TELL THE TRUTH
THE OFFICER WOULD TAKE HIM BACK TO THE HOUSE AND BEAT HIM; THAT THIS SO
FRIGHTENED HIM THAT HE AGREED TO DO HIS BEST TO RECITE TO THE DISTRICT
ATTORNEY THE SAME STORY HOPE HAD TOLD.  THERE IS MUCH EVIDENCE THAT NO
SUCH INCIDENT OCCURRED.  DEPUTY SHERIFF KILLION SAYS THAT SOMETIME
BEFORE MIDNIGHT THE OTHERS HAD LEFT PETITIONER ALONE WITH HIM, AND THAT
PETITIONER TURNED TO HIM AND SAID SOMETHING TO THE EFFECT:  "WHY CAN'T
WE GO OUT AND GET SOMETHING TO EAT; IF WE DO I'LL TELL YOU THE STORY." 
TO THIS KILLION REPLIED THAT THEY COULD GO OUT.  KILLION AND ANOTHER
DEPUTY SHERIFF, GRAY, A LADY FRIEND, AND ANOTHER PERSON ACCOMPANIED
PETITIONER TO A PUBLIC CAFE, WHERE THEY HAD A SUPPER AND AFTERWARDS HAD
CIGARS.  JAMES TESTIFIED THAT NEITHER KILLION NOR GRAY NOR THE DISTRICT
ATTORNEY EVER LAID HAND ON HIM, THREATENED HIM OR OFFERED HIM ANY
INDUCEMENT TO CONFESS. 

THE STATE'S EVIDENCE IS THAT, AFTER THEY STARTED TO SMOKE, JAMES TOLD
A STORY, OF WHICH KILLION TOOK NOTES.  KILLION NARRATED AT THE TRIAL
WHAT JAMES HAD TOLD HIM.  THE PARTY RETURNED TO THE DISTRICT ATTORNEY'S
OFFICE AND THERE, RESPONDING TO A QUESTION BY THE DISTRICT ATTORNEY,
JAMES SAID HE HAD TOLD KILLION THE STORY, AND, IN ANSWER TO QUESTIONS,
HE REPEATED THAT STORY.  THE INTERVIEW WAS STENOGRAPHICALLY RECORDED. 
MOST OF THE QUESTIONS WERE ASKED BY THE DISTRICT ATTORNEY, SOME FEW BY
KILLION AND ONE OR TWO OTHER OFFICERS WHO WERE PRESENT.  THE GROUP
SEEMS TO HAVE CONSISTED OF THE DISTRICT ATTORNEY, AN ASSISTANT DISTRICT
ATTORNEY, TWO OFFICERS, THE TWO DEPUTY SHERIFFS, AND THE STENOGRAPHER. 

HOPE'S STATEMENT LAID ON JAMES THE INITIATION OF THE MURDER PLOT, THE
ATTEMPT TO CONSUMMATE IT WITH SNAKE POISON, THE DROWNING AND THE
DISPOSITION OF HER BODY.  THE ACCOUNT JAMES GAVE KILLION AND THE
DISTRICT ATTORNEY, WHICH HE NOW SAYS WAS AN ATTEMPT TO RETELL THE TALE
HOPE HAD TOLD, WHICH HAD BEEN CONSTANTLY DINNED INTO HIS EARS, IS BY NO
MEANS A REITERATION OF HOPE'S STORY.  ON THE CONTRARY, JAMES INSISTED
THAT HOPE SUGGESTED THE DESTRUCTION OF MARY JAMES, AND THE RATTLESNAKE
EXPEDIENT, WHICH HOPE CARRIED OUT; THAT WHEN THIS FAILED HOPE SUGGESTED
THAT HE, HOPE, BURN DOWN THE HOUSE TO MAKE IT APPEAR THAT MRS. JAMES
DIED BY ACCIDENT; AND THAT HOPE ALSO VOLUNTEERED TO COMMIT AN ABORTION
ON MRS. JAMES AND ALSO TO DO AWAY WITH HER.  JAMES ASSERTED THAT, WHILE
HE WAS ABSENT FROM HIS HOME ON THE MORNING OF AUGUST 5, 1935, HOPE
DROWNED HIS WIFE IN THE BATHTUB AND TOLD JAMES THAT HE HAD DONE SO. 

IT IS ALSO TO BE NOTED THAT JAMES' STATEMENT PRESENTS A LURID PICTURE
OF THE HEAVY DRINKING AND INTOXICATION OF HOPE, JAMES, AND MARY JAMES
DURING THE THREE DAYS ANTERIOR TO THE DEATH OF THE LATTER.  THE EFFORT
EVIDENTLY WAS TO SUGGEST THAT ALL WERE MORE OR LESS IRRESPONSIBLE FOR
THEIR ACTIONS. 

IF HOPE'S STORY IS TRUE, JAMES PLANNED AND ACCOMPLISHED THE MURDER OF
HIS WIFE TO OBTAIN THE INSURANCE ON HER LIFE.  IF JAMES' STATEMENT IS
TRUE, HOPE PLANNED THE MURDER, JAMES DESIRED TO ABANDON THE SCHEME AND
THOUGHT THAT ALL HOPE ULTIMATELY INTENDED TO DO WAS TO COMMIT AN
ABORTION ON JAMES' WIFE, AND WAS SHOCKED AND SURPRISED TO LEARN THAT
HOPE HAD MURDERED HER. 

JAMES SAID DURING SUPPER AT THE CAFE, AND STATED ON ANOTHER OCCASION,
THAT THERE WERE NOT ENOUGH MEN IN THE DISTRICT ATTORNEY'S OFFICE TO
MAKE HIM TALK, AND IF HOPE HAD NOT TALKED HE WOULD NEVER HAVE TOLD THE
STORY. 

SCRUTINY OF THE TWO STATEMENTS INDICATES THAT JAMES CAREFULLY
CONSIDERED WHAT HOPE HAD SAID, AND MADE UP HIS MIND TO TELL A STORY
CONSISTENT WITH HIS INTIMACY WITH HOPE, AND WITH VARIOUS INCIDENTS
JAMES COULD NOT DENY, AND THEN DEPICT A DRUNKEN ORGY AS A RESULT OF
WHICH HIS WILL POWER WAS SO ENFEEBLED THAT HE COULD NOT RESIST HOPE'S
DETERMINATION TO MAKE AWAY WITH MRS. JAMES. 

AT THE TRIAL, JAMES CONTRADICTED THE ESSENTIAL PARTICULARS OF HOPE'S
TESTIMONY AND MOST OF HIS OWN CONFESSION, INCLUDING THE EVIDENCE
RESPECTING THE SNAKES.  HE SWORE ALL HOPE WAS TO DO WAS TO ATTEMPT AN
ABORTION; HE BELIEVED HOPE DID NOT ACCOMPLISH THIS, AND THAT HIS WIFE
DIED AS A RESULT OF FALLING INTO THE POND IN A FAINTING FIT DUE TO HER
PREGNANCY. 

THE EVIDENCE AS TO THE TREATMENT OF JAMES AND THE CONDUCT OF
OFFICIALS AND OFFICERS, FROM THE MOMENT OF HIS ARREST UNTIL THE CLOSE
OF HIS STATEMENT TO THE DISTRICT ATTORNEY, WAS HEARD PRELIMINARILY BY
THE TRIAL JUDGE IN ORDER TO DETERMINE WHETHER THE STATE HAD, AS
REQUIRED BY CALIFORNIA LAW, CARRIED ITS BURDEN OF PROVING THE
CONFESSIONS VOLUNTARY.  THE RULING WAS THAT IT HAD; AND THE CONFESSIONS
WERE ADMITTED.  THE TRIAL JUDGE, AT DEFENDANT'S REQUEST, CHARGED THE
JURY, IN ACCORDANCE WITH THE STATE LAW, THAT THE CONFESSIONS MUST BE
UTTERLY DISREGARDED UNLESS THEY WERE VOLUNTARY, THAT IS, NOT THE RESULT
OF INDUCEMENTS, PROMISES, THREATS, VIOLENCE, OR ANY FORM OF COERCION. 

THE FAILURE OF THE ARRESTING OFFICERS PROMPTLY TO PRODUCE THE
PETITIONER BEFORE AN EXAMINING MAGISTRATE, THEIR DETENTION OF HIM IN
THEIR CUSTODY FROM SUNDAY MORNING TO TUESDAY MORNING, AND ANY ASSAULT
COMMITTED UPON HIM, WERE VIOLATIONS OF STATE STATUTES  FN10  AND
CRIMINAL OFFENSES.  FN11 

WE FIND NO AUTHORITY FOR THE ISSUE OF THE COURT ORDER UNDER WHICH THE
SHERIFF'S DEPUTIES TOOK THE ACCUSED FROM JAIL TO HIS FORMER HOME, AND
TO THE DISTRICT ATTORNEY'S OFFICE FOR QUESTIONING.  FN12  THE DENIAL OF
OPPORTUNITY TO CONSULT COUNSEL, REQUESTED ON MAY 2ND, WAS A
MISDEMEANOR.  FN13 IT MAY BE ASSUMED THIS TREATMENT OF THE PETITIONER
ALSO DEPRIVED HIM OF HIS LIBERTY WITHOUT DUE PROCESS AND THAT THE
PETITIONER WOULD HAVE BEEN AFFORDED PREVENTIVE RELIEF IF HE COULD HAVE
GAINED ACCESS TO A COURT TO SEEK IT. 

BUT ILLEGAL ACTS, AS SUCH, COMMITTED IN THE COURSE OF OBTAINING A
CONFESSION, WHATEVER THEIR EFFECT ON ITS ADMISSIBILITY UNDER LOCAL LAW,
DO NOT FURNISH AN ANSWER TO THE CONSTITUTIONAL QUESTION WE MUST
DECIDE.  THE EFFECT OF THE OFFICERS' CONDUCT MUST BE APPRAISED BY OTHER
CONSIDERATIONS IN DETERMINING WHETHER THE USE OF THE CONFESSIONS WAS A
DENIAL OF DUE PROCESS.  MOREOVER, PETITIONER DOES NOT, AND CANNOT, ASK
REDRESS IN THIS PROCEEDING FOR ANY DISREGARD OF DUE PROCESS PRIOR TO
HIS TRIAL.  THE GRAVAMEN OF HIS COMPLAINT IS THE UNFAIRNESS OF THE USE
OF HIS CONFESSIONS, AND WHAT OCCURRED IN THEIR PROCUREMENT IS RELEVANT
ONLY AS IT BEARS ON THAT ISSUE.    ON THE OTHER HAND, THE FACT THAT THE
CONFESSIONS HAVE BEEN CONCLUSIVELY ADJUDGED BY THE DECISION BELOW TO BE
ADMISSIBLE UNDER STATE LAW, NOTWITHSTANDING THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE, DOES NOT ANSWER THE QUESTION WHETHER DUE PROCESS
WAS LACKING.  THE AIM OF THE RULE THAT A CONFESSION IS INADMISSIBLE
UNLESS IT WAS VOLUNTARILY MADE IS TO EXCLUDE FALSE EVIDENCE.  TESTS ARE
INVOKED TO DETERMINE WHETHER THE INDUCEMENT TO SPEAK WAS SUCH THAT
THERE IS A FAIR RISK THE CONFESSION IS FALSE.  FN14  THESE VARY IN THE
SEVERAL STATES.  FN15  THIS COURT HAS FORMULATED THOSE WHICH ARE TO
GOVERN IN TRIALS IN THE FEDERAL COURTS.  FN16  THE FOURTEENTH AMENDMENT
LEAVES CALIFORNIA FREE TO ADOPT, BY STATUTE OR DECISION, AND TO
ENFORCE, SUCH RULE AS SHE ELECTS, WHETHER IT CONFORM TO THAT APPLIED IN
THE FEDERAL OR IN OTHER STATE COURTS.  BUT THE ADOPTION OF THE RULE OF
HER CHOICE CANNOT FORECLOSE INQUIRY AS TO WHETHER, IN A GIVEN CASE, THE
APPLICATION OF THAT RULE WORKS A DEPRIVATION OF THE PRISONER'S LIFE OR
LIBERTY WITHOUT DUE PROCESS OF LAW.  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. 
THE CRITERIA FOR DECISION OF THAT QUESTION MAY DIFFER FROM THOSE
APPERTAINING TO THE STATE'S RULE AS TO THE ADMISSIBILITY OF A
CONFESSION. 

AS APPLIED TO A CRIMINAL TRIAL, DENIAL OF DUE PROCESS IS THE FAILURE
TO OBSERVE THAT FUNDAMENTAL FAIRNESS ESSENTIAL TO THE VERY CONCEPT OF
JUSTICE.  IN ORDER TO DECLARE A DENIAL OF IT WE MUST FIND THAT THE
ABSENCE OF THAT FAIRNESS FATALLY INFECTED THE TRIAL; THE ACTS
COMPLAINED OF MUST BE OF SUCH QUALITY AS NECESSARILY PREVENTS A FAIR
TRIAL.  SUCH UNFAIRNESS EXISTS WHEN A COERCED CONFESSION IS USED AS A
MEANS OF OBTAINING A VERDICT OF GUILT.  WE HAVE SO HELD IN EVERY
INSTANCE IN WHICH WE HAVE SET ASIDE FOR WANT OF DUE PROCESS A
CONVICTION BASED ON A CONFESSION. 

TO EXTORT TESTIMONY FROM A DEFENDANT BY PHYSICAL TORTURE IN THE VERY
PRESENCE OF THE TRIAL TRIBUNAL IS NOT DUE PROCESS.  THE CASE STANDS NO
BETTER IF TORTURE INDUCES AN EXTRA-JUDICIAL CONFESSION WHICH IS USED AS
EVIDENCE IN THE COURTROOM.  FN17 

A TRIAL DOMINATED BY MOB VIOLENCE IN THE COURTROOM IS NOT SUCH AS DUE
PROCESS DEMANDS.  FN18 THE CASE CAN STAND NO BETTER IF MOB VIOLENCE
ANTERIOR TO THE TRIAL IS THE INDUCING CAUSE OF THE DEFENDANT'S ALLEGED
CONFESSION. 

IF, BY FRAUD, COLLUSION, TRICKERY, AND SUBORNATION OF PERJURY, ON THE
PART OF THOSE REPRESENTING THE STATE, THE TRIAL OF AN ACCUSED PERSON
RESULTS IN HIS CONVICTION, HE HAS BEEN DENIED DUE PROCESS OF LAW.  FN19
THE CASE CAN STAND NO BETTER IF, BY THE SAME DEVICES, A CONFESSION IS
PROCURED, AND USED IN THE TRIAL. 

THE CONCEPT OF DUE PROCESS WOULD VOID A TRIAL IN WHICH, BY THREATS OR
PROMISES IN THE PRESENCE OF COURT AND JURY, A DEFENDANT WAS INDUCED TO
TESTIFY AGAINST HIMSELF.  THE CASE CAN STAND NO BETTER IF, BY RESORT TO
THE SAME MEANS, THE DEFENDANT IS INDUCED TO CONFESS AND HIS CONFESSION
IS GIVEN IN EVIDENCE.  AS WE HAVE SAID, "DUE PROCESS OF LAW  ...
COMMANDS THAT NO SUCH PRACTICE ...  SHALL SEND ANY ACCUSED TO HIS
DEATH."  FN20 

WHERE THE CLAIM IS THAT THE PRISONER'S STATEMENT HAS BEEN PROCURED BY
SUCH MEANS, WE ARE BOUND TO MAKE AN INDEPENDENT EXAMINATION OF THE
RECORD TO DETERMINE THE VALIDITY OF THE CLAIM.  THE PERFORMANCE OF THIS
DUTY CANNOT BE FORECLOSED BY THE FINDING OF A COURT, OR THE VERDICT OF
A JURY, OR BOTH.  FN21  IF THE EVIDENCE BEARING UPON THE QUESTION IS
UNCONTRADICTED, THE APPLICATION OF THE CONSTITUTIONAL PROVISION IS
UNEMBARRASSED BY A FINDING OR A VERDICT IN A STATE COURT; EVEN THOUGH,
IN RULING THAT THE CONFESSION WAS ADMISSIBLE, THE VERY TESTS WERE
APPLIED IN THE STATE COURT TO WHICH WE RESORT TO ANSWER THE
CONSTITUTIONAL QUESTION.  FN22 

THERE ARE CASES, SUCH AS THIS ONE, WHERE THE EVIDENCE AS TO THE
METHODS EMPLOYED TO OBTAIN A CONFESSION IS CONFLICTING, AND IN WHICH,
ALTHOUGH DENIAL OF DUE PROCESS WAS NOT AN ISSUE IN THE TRIAL, AN ISSUE
HAS BEEN RESOLVED BY COURT AND JURY, WHICH INVOLVES AN ANSWER TO THE
DUE PROCESS QUESTION.  IN SUCH A CASE, WE ACCEPT THE DETERMINATION OF
THE TRIERS OF FACT, UNLESS IT IS SO LACKING IN SUPPORT IN THE EVIDENCE
THAT TO GIVE IT EFFECT WOULD WORK THAT FUNDAMENTAL UNFAIRNESS WHICH IS
AT WAR WITH DUE PROCESS. 

HERE, JUDGE AND JURY PASSED ON THE QUESTION WHETHER THE PETITIONER'S
CONFESSIONS WERE FREELY AND VOLUNTARILY MADE, AND THE TESTS APPLIED IN
ANSWERING THAT QUESTION RENDERED THE DECISION ONE THAT ALSO ANSWERED
THE QUESTION WHETHER THE USE OF THE CONFESSIONS INVOLVED A DENIAL OF
DUE PROCESS; THIS NOTWITHSTANDING THE ISSUE SUBMITTED WAS NOT EO NOMINE
ONE CONCERNING DUE PROCESS.  FURTHERMORE, IN PASSING ON THE
PETITIONER'S CLAIM, THE SUPREME COURT OF THE STATE FOUND NO VIOLATION
OF THE FOURTEENTH AMENDMENT.  OUR DUTY, THEN, IS TO DETERMINE WHETHER
THE EVIDENCE REQUIRES THAT WE SET ASIDE THE FINDING OF TWO COURTS AND A
JURY, AND ADJUDGE THE ADMISSION OF THE CONFESSIONS SO FUNDAMENTALLY
UNFAIR, SO CONTRARY TO THE COMMON CONCEPT OF ORDERED LIBERTY, AS TO
AMOUNT TO A TAKING OF LIFE WITHOUT DUE PROCESS OF LAW. 

IN VIEW OF THE CONFLICTING TESTIMONY, WE ARE UNABLE TO SAY THAT THE
FINDING BELOW WAS ERRONEOUS SO FAR AS CONCERNS THE PETITIONER'S CLAIMS
OF PHYSICAL VIOLENCE, THREATS, OR IMPLIED PROMISES OF LENIENCY.  THERE
REMAINS THE UNCONTRADICTED FACT THAT ON TWO OCCASIONS, SEPARATED BY AN
INTERVAL OF ELEVEN DAYS, THE PETITIONER WAS QUESTIONED FOR PROTRACTED
PERIODS.  HE MADE NO ADMISSION IMPLICATING HIM IN HIS WIFE'S DEATH
DURING, OR SOON AFTER, THE INTERROGATIONS OF APRIL 19, 20, AND 21.  IF,
WITHOUT MORE, ELEVEN DAYS LATER, CONFESSIONS HAD BEEN FORTHCOMING, WE
SHOULD HAVE NO HESITATION IN OVERRULING HIS CONTENTION RESPECTING THE
ADMISSION OF HIS CONFESSIONS. 

DOES THE QUESTIONING ON MAY 2ND, IN AND OF ITSELF, OR IN THE LIGHT OF
HIS EARLIER EXPERIENCE, RENDER THE USE OF THE CONFESSIONS A VIOLATION
OF DUE PROCESS?  IF WE ARE SO TO HOLD, IT MUST BE UPON THE GROUND THAT
SUCH A PRACTICE, IRRESPECTIVE OF THE RESULT UPON THE PETITIONER, SO
TAINTED HIS STATEMENTS THAT, WITHOUT CONSIDERING OTHER FACTS DISCLOSED
BY THE EVIDENCE, AND WITHOUT GIVING WEIGHT TO ACCREDITED FINDINGS BELOW
THAT HIS STATEMENTS WERE FREE AND VOLUNTARY, AS A MATTER OF LAW, THEY
WERE INADMISSIBLE IN HIS TRIAL.  THIS WOULD BE TO IMPOSE UPON THE STATE
COURTS A STRICTER RULE THAN WE HAVE ENFORCED IN FEDERAL TRIALS.  FN23
THERE IS LESS REASON FOR SUCH A HOLDING WHEN WE REFLECT THAT WE ARE
DEALING WITH THE SYSTEM OF CRIMINAL ADMINISTRATION OF CALIFORNIA, A
QUASI-SOVEREIGN; THAT IF FEDERAL POWER IS INVOKED TO SET ASIDE WHAT
CALIFORNIA REGARDS AS A FAIR TRIAL, IT MUST BE PLAIN THAT A FEDERAL
RIGHT HAS BEEN INVADED. 

WE HAVE NOT HESITATED TO SET ASIDE CONVICTIONS BASED IN WHOLE, OR IN
SUBSTANTIAL PART, UPON CONFESSIONS EXTORTED IN GRAVER CIRCUMSTANCES. 
THESE WERE SECURED BY PROTRACTED AND REPEATED QUESTIONING OF IGNORANT
AND UNTUTORED PERSONS, IN WHOSE MINDS THE POWER OF OFFICERS WAS GREATLY
MAGNIFIED; WHO SENSED THE ADVERSE SENTIMENT OF THE COMMUNITY AND THE
DANGER OF MOB VIOLENCE; WHO HAD BEEN HELD INCOMMUNICADO, WITHOUT THE
ADVICE OF FRIENDS OR OF COUNSEL; SOME OF WHOM HAD BEEN TAKEN BY
OFFICERS AT NIGHT FROM THE PRISON INTO DARK AND LONELY PLACES FOR
QUESTIONING.  FN24 THIS CASE IS OUTSIDE THE SCOPE OF THOSE DECISIONS. 

LIKE THE SUPREME COURT OF CALIFORNIA, WE DISAPPROVE THE VIOLATIONS OF
LAW INVOLVED IN THE TREATMENT OF THE PETITIONER, AND WE THINK IT RIGHT
TO ADD THAT WHERE A PRISONER, HELD INCOMMUNICADO, IS SUBJECTED TO
QUESTIONING BY OFFICERS FOR LONG PERIODS, AND DEPRIVED OF THE ADVICE OF
COUNSEL, WE SHALL SCRUTINIZE THE RECORD WITH CARE TO DETERMINE WHETHER,
BY THE USE OF HIS CONFESSION, HE IS DEPRIVED OF LIBERTY OR LIFE THROUGH
TYRANNICAL OR OPPRESSIVE MEANS.  OFFICERS OF THE LAW MUST REALIZE THAT
IF THEY INDULGE IN SUCH PRACTICES THEY MAY, IN THE END, DEFEAT RATHER
THAN FURTHER THE ENDS OF JUSTICE.  THEIR LAWLESS PRACTICES HERE TOOK
THEM CLOSE TO THE LINE.  BUT ON THE FACTS AS WE HAVE ENDEAVORED FAIRLY
TO SET THEM FORTH, AND IN THE LIGHT OF THE FINDINGS IN THE STATE
COURTS, WE CANNOT HOLD THAT THE ILLEGAL CONDUCT IN WHICH THE LAW
ENFORCEMENT OFFICERS OF CALIFORNIA INDULGED, BY THE PROLONGED
QUESTIONING OF THE PRISONER BEFORE ARRAIGNMENT, AND IN THE ABSENCE OF
COUNSEL, OR THEIR QUESTIONING ON MAY 2, COERCED THE CONFESSIONS, THE
INTRODUCTION OF WHICH IS THE INFRINGEMENT OF DUE PROCESS OF WHICH THE
PETITIONER COMPLAINS.  THE PETITIONER HAS SAID THAT THE INTERROGATION
WOULD NEVER HAVE DRAWN AN ADMISSION FROM HIM HAD HIS CONFEDERATE NOT
MADE A STATEMENT; HE ADMITS THAT NO THREATS, PROMISES, OR ACTS OF
PHYSICAL VIOLENCE WERE OFFERED HIM DURING THIS QUESTIONING OR FOR
ELEVEN DAYS PRECEDING IT. COUNSEL HAD BEEN AFFORDED FULL OPPORTUNITY TO
SEE HIM AND HAD ADVISED HIM.  HE EXHIBITED A SELF-POSSESSION, A
COOLNESS, AND AN ACUMEN THROUGHOUT HIS QUESTIONING, AND AT HIS TRIAL,
WHICH NEGATIVES THE VIEW THAT HE HAD SO LOST HIS FREEDOM OF ACTION THAT
THE STATEMENTS MADE WERE NOT HIS BUT WERE THE RESULT OF THE DEPRIVATION
OF HIS FREE CHOICE TO ADMIT, TO DENY, OR TO REFUSE TO ANSWER. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  89 P.2D 39. 

FN2  14 CAL.2D 403, 94 P.2D 569. 

FN3  ROBY V. COLEHOUR, 146 U.S. 153; GULF & SHIP ISLAND R. CO. V.
HEWES, 183 U.S. 66; WHITNEY V. CALIFORNIA, 274 U.S. 357; HONEYMAN V.
HANAN, 300 U.S. 14. 

FN4  JUDICIAL CODE SEC. 237, AS AMENDED; 28 U.S.C. SEC. 344(A). 

FN5  JUDICIAL CODE SEC. 237, AS AMENDED; 28 U.S.C. SEC. 344(C). 

FN6  313 U.S. 537, 597. 

FN7  PENAL CODE SEC. 1111. 

FN8  CF. MOONEY V. HOLOHAN, 294 U.S. 103. 

FN9  SEE WIGMORE, EVIDENCE (3RD ED.)  VOL.  II, SEC. 363. 

FN10  CALIFORNIA PENAL CODE SECS. 849, 4004. 

FN11  ID. SECS. 145, 146, 149. 

FN12  THE RECORD DOES NOT DISCLOSE WHETHER THE APPLICATION FOR THE
ORDER WAS IN THE FORM OF A PETITION; WHETHER DEFENDANT WAS APPRISED OF
THE MOTION FOR THE ORDER; WHETHER HE CONSENTED TO ITS ISSUE, OR WHAT
REPRESENTATIONS WERE MADE TO THE COURT WHICH GRANTED THE ORDER. 
PRISONER COMMITTED BY A MAGISTRATE TO BE CONFINED IN A JAIL UNTIL
LEGALLY DISCHARGED, AND DECLARES THAT IF HE IS PERMITTED TO GO AT LARGE
OUT OF THE JAIL, EXCEPT BY VIRTUE OF A LEGAL ORDER OR PROCESS, THIS
SHALL CONSTITUTE AN ESCAPE.  THE ONLY STATUTES WE ARE ABLE TO FIND
AUTHORIZING AN ORDER FOR THE REMOVAL OF A PRISONER FROM JAIL ARE SECS.
4011 AND 4012 OF THE PENAL CODE, 1941, (SECS. 1607 AND 1608 OF THE 1935
CODE) WHICH PROVIDE FOR CASES OF INDIVIDUAL ILLNESS OR A GENERAL
OUTBREAK OF PESTILENCE OR DISEASE IN A PRISON.  SECTION 4011 PERMITS A
REMOVAL WITHOUT COURT ORDER IN CASE OF FIRE. 

FN13  PENAL CODE, SEC. 825. 

FN14  WIGMORE, EVIDENCE (3D ED.)  SECS.  823, 824. 

FN15  ID. SEC. 824. 

FN16  SPARF AND HANSEN V. UNITED STATES, 156 U.S. 51, 55; WILSON V.
UNITED STATES, 162 U.S. 613, 622; BRAM V. UNITED STATES, 168 U.S. 532;
WAN V. UNITED STATES, 266 U.S. 1, 14. 

FN17  BROWN V. MISSISSIPPI, 297 U.S. 278. 

FN18  MOORE V. DEMPSEY, 261 U.S. 86. 

FN19  MOONEY V. HOLOHAN, 294 U.S. 103. 

FN20  CHAMBERS V. FLORIDA, 309 U.S. 227, 241. 

FN21  BROWN V. MISSISSIPPI, SUPRA, 278; CHAMBERS V. FLORIDA, SUPRA;
CANTY V. ALABAMA, 309 U.S. 629; WHITE V. TEXAS, 310 U.S. 530; VERNON V.
ALABAMA, 313 U.S. 547; LOMAX V. TEXAS, 313 U.S. 544. 

FN22  CASES SUPRA, NOTE 21. 

FN23  WAN V. UNITED STATES, 266 U.S. 1, 14, AND CASES CITED. 

FN24  SEE CHAMBERS V. FLORIDA; CANTY V. ALABAMA; WHITE V. TEXAS;
VERNON V. ALABAMA; LOMAX V. TEXAS, SUPRA, NOTE 21. 

MR. JUSTICE BLACK, DISSENTING, WITH WHOM MR. JUSTICE DOUGLAS
CONCURS: 

I BELIEVE THE CONFESSION USED TO CONVICT JAMES WAS THE RESULT OF
COERCION AND COMPULSION, AND THAT THE JUDGMENT SHOULD BE REVERSED FOR
THAT REASON.  THE TESTIMONY OF THE OFFICERS TO WHOM THE CONFESSION WAS
GIVEN IS ENOUGH, STANDING ALONE, TO CONVINCE ME THAT IT COULD NOT HAVE
BEEN FREE AND VOLUNTARY.  CF. BRAM V. UNITED STATES, 168 U.S. 532.  IN
BRIEF, THOSE OFFICERS ADMITTED THE FOLLOWING: 

SUSPECTING THE DEFENDANT OF MURDER, THEY ENTERED HIS HOME ON SUNDAY,
APRIL 19, 1936, AT 9 A.M. HE WAS TAKEN TO A FURNISHED HOUSE NEXT DOOR,
IN WHICH THE STATE'S ATTORNEY'S OFFICE HAD INSTALLED A DICTAPHONE.  FOR
THE NEXT FORTY-EIGHT HOURS, OR A LITTLE LONGER, THE STATE'S ATTORNEY,
HIS ASSISTANTS, AND INVESTIGATORS HELD JAMES AS THEIR PRISONER.  HE WAS
SO HELD, NOT UNDER INDICTMENT OR WARRANT OF ARREST, BUT BY FORCE.  AT
ABOUT 4 A.M. MONDAY, ONE SOUTHARD, AN INVESTIGATOR, "SLAPPED" THE
DEFENDANT, WHOSE LEFT EAR WAS THEREAFTER RED AND SWOLLEN.  JAMES WAS
APPARENTLY KEPT AT THE STATE'S ATTORNEY'S OFFICE DURING THE DAYLIGHT
HOURS; THE FULL EXTENT TO WHICH HE WAS QUESTIONED THERE IS NOT CLEAR. 
BUT ON MONDAY AND TUESDAY NIGHTS, AT THE FURNISHED HOUSE, WITH NO ONE
PRESENT BUT JAMES AND THE OFFICERS, HE WAS SUBJECTED TO CONSTANT
INTERROGATION.  THE QUESTIONING OFFICERS DIVIDED THEMSELVES INTO
SQUADS, SO THAT SOME COULD SLEEP WHILE THE OTHERS CONTINUED THE
QUESTIONING.  THE DEFENDANT GOT NO SLEEP DURING THE FIRST FORTY-TWO
HOURS AFTER THE OFFICERS SEIZED HIM.  AND ABOUT 3:30 OR 4 A.M. TUESDAY
MORNING, WHILE SITTING IN THE CHAIR HE OCCUPIED WHILE BEING
INTERROGATED, AT THE VERY MOMENT A QUESTION WAS BEING ASKED HIM, THE
DEFENDANT FELL ASLEEP.  THERE HE REMAINED ASLEEP UNTIL ABOUT 7 OR 8
A.M.  AT ABOUT 11 A.M. THE OFFICERS TOOK HIM TO JAIL AND BOOKED HIM ON
A CHARGE OF INCEST.  DURING THE ENTIRE FORTY-TWO HOURS DEFENDANT WAS
HELD, HE REPEATEDLY DENIED ANY COMPLICITY IN OR KNOWLEDGE OF THE MURDER
OF HIS WIFE.    THE SECOND EPISODE DURING WHICH THE OFFICERS HELD
DEFENDANT INCOMMUNICADO, AND WHICH PRODUCED THE CONFESSION, WAS ON MAY
2 AND IN THE EARLY HOURS OF MAY 3.  ABOUT 11 A.M. ON MAY 2, AN
INVESTIGATOR FOR THE DISTRICT ATTORNEY TOOK JAMES FROM HIS CELL TO THE
CHAPLAIN'S ROOM OF THE JAIL.  IN THE PRESENCE OF AN ASSISTANT DISTRICT
ATTORNEY HE WAS CONFRONTED BY HOPE AND TOLD THAT HOPE HAD MADE A
CONFESSION IMPLICATING JAMES IN HIS WIFE'S MURDER.  JAMES REFUSED TO
TALK AND WAS THEN CARRIED BACK TO HIS CELL.  A SHORT TIME LATER, UNDER
A PURPORTED ORDER OF COURT, THE NATURE OR AUTHORITY OF WHICH DOES NOT
APPEAR, JAMES WAS TAKEN FROM THE JAIL TO HIS HOME, AND THEN, SOMEWHERE
BETWEEN 1 AND 4 P.M., TO THE DISTRICT ATTORNEY'S OFFICE.  THE DOORS
WERE LOCKED.  FROM THEN UNTIL ABOUT MIDNIGHT THE DISTRICT ATTORNEY, HIS
ASSISTANTS, AND INVESTIGATORS, SUBJECTED JAMES TO CONSTANT
INTERROGATION.  UPON ASKING FOR HIS ATTORNEY, JAMES WAS TOLD HE WAS OUT
OF THE CITY.  HE THEN ASKED FOR ANOTHER, BUT WHATEVER EFFORTS THE
OFFICERS MADE TO SATISFY THIS REQUEST WERE UNSUCCESSFUL.  HE WAS AGAIN
CONFRONTED WITH HOPE, BUT NEITHER THIS NOR THE QUESTIONING HAD ELICITED
AN ADMISSION OF ANY NATURE, BY MIDNIGHT.  AT THAT TIME, ACCORDING TO
THE INVESTIGATORS, JAMES SAID TO ONE OF THEM, "CAN'T WE GO OUT AND GET
SOMETHING TO EAT - IF YOU FELLOWS WILL TAKE ME OUT TO EAT NOW, I WILL
TELL YOU THE STORY."  FN1  HE WAS TAKEN OUT TO EAT BY SOME OF THE
OFFICERS; REMAINED ABOUT AN HOUR AND A HALF; WHILE AT THE RESTAURANT
MADE DAMAGING ADMISSIONS, AND UPON HIS RETURN TO THE DISTRICT
ATTORNEY'S OFFICE MADE THE FULL STATEMENT WHICH WAS USED TO BRING ABOUT
HIS CONVICTION, COMPLETING IT AT ABOUT 3 A.M. SOUTHARD, THE
INVESTIGATOR WHO HAD PREVIOUSLY "SLAPPED" HIM, WAS ONE OF THE SIGNED
WITNESSES OF THE CONFESSION.  FN2 

I THINK THE FACTS SET OUT ARE SUFFICIENT TO MAKE APPLICABLE THE
PRINCIPLES ANNOUNCED IN CHAMBERS V. FLORIDA, 309 U.S. 227, AND THE
CONCLUSION THERE ANNOUNCED THAT:  "DUE PROCESS OF LAW, PRESERVED FOR
ALL BY OUR CONSTITUTION, COMMANDS THAT NO SUCH PRACTICE AS THAT
DISCLOSED BY THIS RECORD SHALL SEND ANY ACCUSED TO HIS DEATH."  WHITE
V. TEXAS, 310 U.S. 530, 533; CANTY V. ALABAMA, 309 U.S. 629; VERNON V.
ALABAMA, 313 U.S. 547.  CF. BRAM V. UNITED STATES, SUPRA. 

FN1  THIS IS RATHER CLOSE TO A PART OF JAMES' OWN TESTIMONY, TO WIT:
"HE CONTINUED TO QUESTION ME UNTIL LATER ON IN THE EVENING.  I WAS VERY
SICK.  I WAS HUNGRY; I WAS TIRED, AND I TOLD HIM A THOUSAND TIMES THAT
I DIDN'T KNOW ANYTHING ABOUT HOPE'S STORY." 

FN2  JAMES' TESTIMONY AT THIS POINT WAS THAT SOUTHARD, LEFT ALONE
WITH HIM SHORTLY BEFORE MIDNIGHT, SAID JAMES HAD BEEN LYING TO THE
DISTRICT ATTORNEY LONG ENOUGH AND THREATENED TO TAKE HIM BACK ONCE
AGAIN TO THE HOUSE NEXT DOOR TO HIS HOME WHERE JAMES HAD BEEN
QUESTIONED APRIL 19 TO 21.  IN RESPONSE TO AN INQUIRY WHETHER HE WAS
TOLD HIS CONFESSION MIGHT BE USED AGAINST HIM, JAMES REPLIED:  "I
DIDN'T KNOW WHETHER THE STATEMENT WOULD BE USED AGAINST ME, OR NOT.  I
WOULD RATHER DIE THAN TO HAVE GONE BACK TO THAT HOUSE AND WENT THROUGH
TORTURE LIKE THE THREE DAYS I WAS OUT THERE.  I DIDN'T CARE WHETHER THE
STATEMENT WAS TAKEN, OR NOT." 
..END :






PARKER V. MOTOR BOAT SALES, 314 U.S. 244 


NO. 46.  ARGUED NOVEMBER 19, 1941.  - DECIDED DECEMBER 8, 1941.  - 116
F.2D 789, REVERSED. 


1.  IN THIS PROCEEDING UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS'
ACT FOR COMPENSATION FOR THE DEATH OF AN EMPLOYEE, THE EVIDENCE WAS
CLEARLY SUFFICIENT TO SUPPORT THE DEPUTY COMMISSIONER'S FINDING THAT
THE DECEASED, AT THE TIME OF HIS DEATH, WAS ACTING IN THE COURSE OF HIS
EMPLOYMENT; AND THEREFORE THE FINDING WAS CONCLUSIVE.  P. 246. 

2.  THE APPLICATION OF THE LONGSHOREMEN'S AND HARBOR WORKERS' ACT TO
A CASE WHERE THE EMPLOYEE, AT THE TIME OF HIS DEATH, WAS ACTING IN THE
COURSE OF HIS EMPLOYMENT AND WAS RIDING IN A BOAT ON A NAVIGABLE RIVER,
IS EXCLUSIVE, EVEN THOUGH THE EMPLOYEE USUALLY WAS ENGAGED IN THE
PERFORMANCE OF NON-MARITIME DUTIES.  P. 246. 

THE CASE IS NOT WITHIN THE PROVISION OF SEC. 3(A) EXCEPTING FROM THE
COVERAGE OF THE ACT CASES IN WHICH RECOVERY MAY VALIDLY BE PROVIDED BY
STATE LAW. 

3.  A CONTENTION THAT AN AWARD UNDER THE LONGSHOREMEN'S AND HARBOR
WORKERS' ACT WAS VOID UNDER SEC. 5 OF THE ACT, BECAUSE THE CLAIM FOR
COMPENSATION WAS MADE BY THE WIDOW RATHER THAN BY THE "LEGAL
REPRESENTATIVE" OF THE DECEASED, COMES TOO LATE WHEN RAISED FOR THE
FIRST TIME IN THE CIRCUIT COURT OF APPEALS.  P. 251. 

PARKER, DEPUTY COMMISSIONER, UNITED STATES EMPLOYEES' COMPENSATION
COMMISSION, V. MOTOR BOAT SALES, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 313 U.S. 554, TO REVIEW THE REVERSAL OF A DECREE
SUSTAINING AN AWARD OF COMPENSATION UNDER THE LONGSHOREMEN'S AND HARBOR
WORKERS' ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AUGUST 18, 1938, GEORGE ARMISTEAD WAS DROWNED WHEN A MOTOR BOAT IN
WHICH HE WAS RIDING CAPSIZED ON THE JAMES RIVER OFF RICHMOND,
VIRGINIA.  THE BOAT WAS NAVIGATED BY ONE JOHNNIE COOPER.  BOTH
ARMISTEAD AND COOPER WERE EMPLOYEES OF THE RESPONDENT, MOTOR BOAT
SALES, INCORPORATED, WHICH SOLD SMALL BOATS, MARITIME SUPPLIES, AND
OUTBOARD MOTORS.  THE OBJECT OF THE ILL-FATED BOAT TRIP WAS TO TEST ONE
OF THE RESPONDENT'S OUTBOARD MOTORS, WHICH IT DESIRED TO SELL, AND
LATER DID SELL, TO THE OWNER OF THE BOAT.  THE PETITIONER, DEPUTY
COMMISSIONER OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION,
UNDER AUTHORITY OF SEC. 19 OF THE LONGSHOREMEN'S AND HARBOR WORKERS'
ACT, 44 STAT. 1424, AFTER COMPLAINT, INVESTIGATION, AND HEARINGS,
ORDERED THE RESPONDENT TO PAY COMPENSATION TO ARMISTEAD'S WIDOW FOR THE
BENEFIT OF HERSELF AND THREE MINOR CHILDREN.  AMONG THE FINDINGS ON
WHICH THE DEPUTY BASED HIS ORDER WERE THESE:  THAT ARMISTEAD'S DEATH BY
DROWNING, "AROSE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT; THAT HIS
DEATH OCCURRED UPON NAVIGABLE WATERS; AND THAT AT THE TIME OF HIS DEATH
HE WAS ENGAGED IN MARITIME EMPLOYMENT."  SECTION 21(B) OF THE ACT
PROVIDES THAT IF A DEPUTY COMMISSIONER'S AWARD IS NOT MADE IN
ACCORDANCE WITH LAW, FEDERAL DISTRICT COURTS MAY ENJOIN ENFORCEMENT OF
IT UPON PETITION OF ANY PARTY IN INTEREST.  IN PROCEEDINGS INITIATED BY
THE RESPONDENT UNDER THIS SECTION, THE DISTRICT COURT SUSTAINED THE
AWARD, DISMISSING THE BILL ON THE GROUND THAT THE FINDINGS OF FACT WERE
SUPPORTED BY EVIDENCE AND WERE THEREFORE CONCLUSIVE, AND THAT THE
COMMISSIONER'S CONCLUSIONS AND AWARD WERE IN ACCORDANCE WITH LAW.  THE
CIRCUIT COURT OF APPEALS REVERSED, ADVANCING TWO REASONS FOR ITS
CONCLUSION:  (1) ARMISTEAD WAS NOT ACTING IN THE COURSE OF HIS
EMPLOYMENT AT THE TIME OF THE ACCIDENT; AND (2) EVEN IF HE HAD BEEN,
RECOVERY WAS BARRED BY SEC. 3(A) OF THE ACT MAKING COMPENSATION PAYABLE
"ONLY IF ...  RECOVERY FOR THE DISABILITY OR DEATH THROUGH WORKMEN'S
COMPENSATION PROCEEDINGS MAY NOT VALIDLY BE PROVIDED BY STATE LAW." 

(1)  THE CIRCUIT COURT'S CONCLUSION THAT ARMISTEAD WAS NOT ACTING IN
THE COURSE OF HIS EMPLOYMENT RESTS UPON A REVALUATION OF THE EVIDENCE
BEFORE THE DEPUTY COMMISSIONER.  IT IS TRUE THAT THE RESPONDENT'S
PRESIDENT TESTIFIED THAT "GEORGE WAS CAUTIONED NEVER TO GO INTO A BOAT
OR HAVE ANYTHING TO DO WITH A BOAT OR MOTOR," BUT THIS RULE WAS LAID
DOWN "PRIOR TO NOVEMBER 1937" AND THE ACCIDENT OCCURRED IN AUGUST,
1938.  AGAINST WHATEVER INFERENCES TO BE DRAWN FROM TESTIMONY REGARDING
THIS GENERAL AND RATHER REMOTELY ANNOUNCED RULE, ARE THE INFERENCES TO
BE DRAWN FROM TESTIMONY THAT ON THE MORNING OF THE ACCIDENT ARMISTEAD
WAS SENT TO THE RIVER WITH SPECIFIC INSTRUCTIONS TO HELP COOPER IN
PLACING THE OUTBOARD MOTORS ON THE BOAT; THAT THERE WERE NO SPECIFIC
INSTRUCTIONS AS TO WHETHER OR NOT ARMISTEAD WAS TO STAY OUT OF THE
BOAT; THAT EITHER ARMISTEAD OR COOPER WAS TOLD THAT ARMISTEAD WAS "TO
GO AND HELP" COOPER; THAT COOPER, THE SUPERIOR OF THE TWO EMPLOYEES, AT
LEAST ACQUIESCED IN ARMISTEAD'S REMAINING IN THE BOAT TO "KEEP A
LOOKOUT" FOR HIDDEN OBJECTS IN THE MUDDY WATER; THAT COOPER REGARDED
ARMISTEAD'S ACTING AS LOOKOUT AS "HELPFUL"; THAT EMPLOYEES OF THE
RESPONDENT WOULD SOMETIMES MAKE TRIPS IN BOATS FOR TESTING PURPOSES, IN
FURTHERANCE OF RESPONDENT'S BUSINESS; AND THAT IN ONE SUCH INSTANCE AN
EMPLOYEE HAD TAKEN A BOAT ON A TRIP OF AT LEAST FIFTY MILES IN
RESPONDENT'S BEHALF.  GRANTING THAT MORE THAN ONE POSSIBLE CONCLUSION
COULD HAVE BEEN REACHED UPON THE EVIDENCE, WE THINK IT WAS CLEARLY
SUFFICIENT TO SUPPORT THE DEPUTY COMMISSIONER'S FINDING THAT ARMISTEAD
WAS ACTING IN THE COURSE OF HIS EMPLOYMENT.  THE CIRCUIT COURT OF
APPEALS SHOULD THEREFORE HAVE ACCEPTED IT AS FINAL.  VOEHL V. INDEMNITY
INS. CO., 288 U.S. 162. 

(2)  THE CIRCUIT COURT WAS OF THE OPINION THAT EVEN IF ARMISTEAD HAD
ACTED IN THE COURSE OF HIS EMPLOYMENT, THE LONGSHOREMEN'S AND HARBOR
WORKERS' ACT WOULD NOT APPLY BECAUSE HIS EMPLOYMENT WAS "SO LOCAL IN
CHARACTER" THAT VIRGINIA COULD VALIDLY HAVE INCLUDED IT UNDER A STATE
WORKMEN'S COMPENSATION ACT.  116 F.2D 789.  THIS PROPOSITION CANNOT BE
RESTED ON THE GROUND THAT ARMISTEAD, HIRED PRIMARILY AS A JANITOR AND
PORTER, WAS PREDOMINANTLY A NON-MARITIME EMPLOYEE.  FOR, HABITUAL
PERFORMANCE OF OTHER AND DIFFERENT DUTIES ON LAND CANNOT ALTER THE FACT
THAT AT THE TIME OF THE ACCIDENT HE WAS RIDING IN A BOAT ON A NAVIGABLE
RIVER, AND IT IS IN CONNECTION WITH THAT CLEARLY MARITIME ACTIVITY  FN1
THAT THE AWARD WAS HERE MADE.  CF. NORTHERN COAL CO. V. STRAND, 278
U.S. 142, 144; LIABILITY ASSURANCE CO. V. COOK, 281 U.S. 233, 236. 
MOREOVER, SEC. 2(4) OF THE ACT EXPRESSLY PROVIDES FOR ITS APPLICATION
TO "EMPLOYEES (WHO) ARE EMPLOYED  ...  IN WHOLE OR IN PART UPON THE
NAVIGABLE WATERS OF THE UNITED STATES." 

IF THE CONCLUSION OF THE CIRCUIT COURT CAN BE SUPPORTED AT ALL, IT
MUST BE ON THE BASIS THAT THE EMPLOYMENT, EVEN THOUGH MARITIME AND
THEREFORE WITHIN AN AREA IN WHICH CONGRESS COULD HAVE ESTABLISHED
EXCLUSIVE FEDERAL JURISDICTION, IS NEVERTHELESS SUBJECT TO STATE
REGULATION UNTIL CONGRESS HAS EXERCISED ITS PARAMOUNT POWER.  CF.
LIABILITY ASSURANCE CO. V. COOK, SUPRA, 237.  CONGRESS HAVING EXPRESSLY
KEPT OUT OF THE AREA IN WHICH "RECOVERY  ...  MAY  ...  VALIDLY BE
PROVIDED BY STATE LAW," THE ARGUMENT MAY BE MADE THAT VIRGINIA WOULD
HAVE BEEN UNHAMPERED IN PROVIDING FOR COMPENSATION HERE. 

THE DECISION OF THIS COURT IN SOUTHERN PACIFIC CO. V. JENSEN, 244
U.S. 205, HOWEVER, SEVERS A LINK IN THIS CHAIN OF REASONING.  FOR UNDER
THE HOLDING OF THAT CASE, EVEN IN THE ABSENCE OF ANY CONGRESSIONAL
ACTION,  FN2  FEDERAL JURISDICTION IS EXCLUSIVE AND STATE ACTION
FORBIDDEN IN AN AREA WHICH, ALTHOUGH OF SHADOWY LIMITS,  FN3  DOUBTLESS
EMBRACES THE CASE BEFORE US.  THE BASIS OF THE DECISION, THAT ARTICLE
III, SEC. 2, OF THE CONSTITUTION, EXTENDING THE JUDICIAL POWER OF THE
UNITED STATES "TO ALL CASES OF ADMIRALTY AND MARITIME JURISDICTION," IS
TANTAMOUNT TO A COMMAND THAT NO STATE MAY INTERFERE WITH THE HARMONY
AND UNIFORMITY OF ADMIRALTY LAW, AND THAT ON THE FACTS OF THAT CASE
RECOVERY UNDER A STATE STATUTE WOULD WORK SUCH AN INTERFERENCE, WAS
REJECTED BY FOUR DISSENTING MEMBERS OF THE COURT.  AND WHEN THE
DOCTRINE OF THE JENSEN CASE WAS REAFFIRMED IN KNICKERBOCKER ICE CO. V.
STEWART, 253 U.S. 149, AND WASHINGTON V. DAWSON & CO., 264 U.S. 219,
SHARP DISAGREEMENT WAS AGAIN EXPRESSED IN DISSENTING OPINIONS.  WE HAVE
NOT BEEN CALLED UPON HERE, HOWEVER, TO RECONSIDER THE CONSTITUTIONAL
PRINCIPLES ANNOUNCED IN THOSE CASES, AND WE ARE CONVINCED THAT SUCH A
RECONSIDERATION IS NOT NECESSARY FOR DISPOSITION OF THE CASE BEFORE
US. 

WHAT WE ARE CALLED UPON TO DECIDE IS NOT OF CONSTITUTIONAL
MAGNITUDE.  FOR, REGARDLESS OF WHETHER OR NOT THE LIMITATION ON THE
POWER OF STATES SET OUT IN THE JENSEN CASE IS TO BE ACCEPTED, IT IS NOT
DOUBTED THAT CONGRESS COULD CONSTITUTIONALLY HAVE PROVIDED FOR RECOVERY
UNDER A FEDERAL STATUTE IN THIS KIND OF SITUATION.  THE QUESTION IS
WHETHER CONGRESS HAS SO PROVIDED IN THIS STATUTE.  THE PROVISO OF SEC.
3(A) ASIDE, THERE WOULD BE NO DIFFICULTY WHATEVER IN CONCLUDING IT
HAS.  FOR THE ACT EXPRESSLY INCLUDES WITHIN ITS AMBIT ACCIDENTS
"ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT" IN THE CASE OF
EMPLOYEES ENGAGED "IN MARITIME EMPLOYMENT, IN WHOLE OR IN PART, UPON
THE NAVIGABLE WATERS OF THE UNITED STATES," AND ARMISTEAD'S DEATH WAS
THE RESULT OF SUCH AN ACCIDENT.  WHILE THE PROVISO OF SEC. 3(A) APPEARS
TO BE A SUBTRACTION FROM THE SCOPE OF THE ACT THUS OUTLINED BY
CONGRESS, WE BELIEVE THAT, PROPERLY INTERPRETED, IT IS NOT A LARGE
ENOUGH SUBTRACTION TO PLACE THIS CASE OUTSIDE THE COVERAGE WHICH
CONGRESS INTENDED TO PROVIDE. 

IN THE REPORT OF THE SENATE COMMITTEE ON THE JUDICIARY ACCOMPANYING
THE BILL WHICH WAS ENACTED AS THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT, S.R. 973, 69TH CONG., 1ST SESS., 16, THIS AVOWAL OF
CONGRESSIONAL PURPOSE APPEARS: 

"IF LONGSHOREMEN COULD AVAIL THEMSELVES OF THE BENEFITS OF STATE
COMPENSATION LAWS, THERE WOULD BE NO OCCASION FOR THIS LEGISLATION;
BUT, UNFORTUNATELY, THEY ARE EXCLUDED FROM THESE LAWS BY REASON OF THE
CHARACTER OF THEIR EMPLOYMENT; AND THEY ARE NOT ONLY EXCLUDED BUT THE
SUPREME COURT HAS MORE THAN ONCE HELD THAT FEDERAL LEGISLATION CAN NOT,
CONSTITUTIONALLY, BE ENACTED THAT WILL APPLY STATE LAWS TO THIS
OCCUPATION.  (SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205;
KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149; WASHINGTON V. DAWSON &
CO., 264 U.S. 219.) 

"IT THUS APPEARS THAT THERE IS NO WAY OF GIVING TO THESE HARD-WORKING
MEN, ENGAGED IN A SOMEWHAT HAZARDOUS EMPLOYMENT, THE JUSTICE INVOLVED
IN THE MODERN PRINCIPLE OF COMPENSATION WITHOUT ENACTING A UNIFORM
COMPENSATION STATUTE." 

THERE CAN BE NO DOUBT THAT THE PURPOSE OF THE ACT WAS TO PROVIDE FOR
FEDERAL COMPENSATION IN THE AREA WHICH THE SPECIFIC DECISIONS REFERRED
TO PLACED BEYOND THE REACH OF THE STATES.  THE PROVISO PERMITTING
RECOVERY ONLY WHERE COMPENSATION "MAY NOT VALIDLY BE PROVIDED BY STATE
LAW" CANNOT BE READ IN A MANNER THAT WOULD DEFEAT THIS PURPOSE.  AN
INTERPRETATION WHICH WOULD ENLARGE OR CONTRACT THE EFFECT OF THE
PROVISO IN ACCORDANCE WITH WHETHER THIS COURT REJECTED OR REAFFIRMED
THE CONSTITUTIONAL BASIS OF THE JENSEN AND ITS COMPANION CASES CANNOT
BE ACCEPTABLE.  THE RESULT OF SUCH AN INTERPRETATION WOULD BE TO
SUBJECT THE SCOPE OF PROTECTION THAT CONGRESS WISHED TO PROVIDE, TO
UNCERTAINTIES THAT CONGRESS WISHED TO AVOID. 

THE MAIN IMPETUS FOR THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT WAS THE NEED TO CORRECT A GAP MADE PLAIN BY DECISIONS
OF THIS COURT.  WE BELIEVE THAT THERE IS ONLY ONE INTERPRETATION OF THE
PROVISO IN SEC. 3(A) WHICH WOULD ACCORD WITH THE AIM OF CONGRESS; THE
FIELD IN WHICH A STATE MAY NOT VALIDLY PROVIDE FOR COMPENSATION MUST BE
TAKEN, FOR THE PURPOSES OF THE ACT, AS THE SAME FIELD WHICH THE JENSEN
LINE OF DECISION EXCLUDED FROM STATE COMPENSATION LAWS.  WITHOUT
AFFIRMING OR REJECTING THE CONSTITUTIONAL IMPLICATIONS OF THOSE CASES,
WE ACCEPT THEM AS THE MEASURE BY WHICH CONGRESS INTENDED TO MARK THE
SCOPE OF THE ACT THEY BROUGHT INTO EXISTENCE. 

(3)  THE RESPONDENT FURTHER CONTENDS THAT THE AWARD WAS VOID UNDER
SEC. 5 OF THE ACT.  THIS SECTION, SET OUT IN FULL IN THE MARGIN BELOW,
FN4  STATES THAT "AN INJURED EMPLOYEE, OR HIS LEGAL REPESENTATIVE IN
CASE DEATH RESULTS FROM THE INJURY, MAY ELECT TO CLAIM COMPENSATION
UNDER THIS ACT  ...  "  THE RECORD DOES NOT INDICATE THAT A "LEGAL
REPRESENTATIVE" OF ARMISTEAD WAS EVER APPOINTED.  HERE THE CLAIM WAS
FILED BY HIS WIDOW.  SINCE THE RESPONDENT DID NOT CONTEST THE WIDOW'S
CAPACITY TO FILE A CLAIM, EITHER BEFORE THE DEPUTY COMMISSIONER OR IN
THE DISTRICT COURT, THE OBJECTION, EVEN IF OTHERWISE MERITORIOUS, WAS
MADE TOO LATE.  CF. MCCANDLESS V. FURLAUD, 293 U.S. 67.  WE MAY
NEVERTHELESS POINT OUT THAT THE WIDOW'S ASSERTED INCAPACITY TO SUE IN
HER OWN NAME CAN BE DERIVED ONLY INFERENTIALLY FROM THE TERMS OF SEC.
5, AND THAT OTHER SECTIONS OF THE ACT ARE NOT IN HARMONY WITH THIS
INFERENCE.  SECTION 12 PROVIDES THAT NOTICE OF DEATH MAY BE GIVEN "BY
ANY PERSON CLAIMING TO BE ENTITLED TO COMPENSATION FOR SUCH DEATH OR BY
A PERSON ON HIS BEHALF."  SECTION 19(A) PROVIDES THAT "SUBJECT TO THE
PROVISIONS OF SECTION 13 A CLAIM FOR COMPENSATION MAY BE FILED  ...  IN
ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE COMMISSION," AND THERE IS
NOTHING IN SEC. 13 WHICH MAKES FILING BY A "PERSONAL REPRESENTATIVE"
MANDATORY.  MOREOVER, ADMINISTRATIVE PRACTICE APPARENTLY COUNTENANCES
THE FILING OF CLAIMS BY WIDOWS, SINCE THE COMMISSION HAS PRESCRIBED
PRINTED FORMS BEARING THE CAPTION:  "CLAIM FOR COMPENSATION IN DEATH
CASE BY WIDOW AND FOR CHILDREN UNDER THE AGE OF EIGHTEEN."  FORM US
262. 

WE REVERSE THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS AND AFFIRM
THAT OF THE DISTRICT COURT.  REVERSED. 

FN1  CF. THE MOSES TAYLOR, 4 WALL.  411, 427; ATLANTIC TRANSPORT CO.
V. IMBROVEK, 234 U.S. 52, 58-63; INDUSTRIAL COMM'N V. NORDENHOLT CO.,
259 U.S. 263, 272-273; SMITH & SON V. TAYLOR, 276 U.S. 179, 181; LONDON
GUARANTEE CO. V. INDUSTRIAL COMM'N, 279 U.S. 109, 123, 125. 

FN2  WHILE REFERENCE WAS MADE IN THE MAJORITY OPINION OF THE JENSEN
CASE TO SEC. 9 OF THE JUDICIARY ACT OF 1789, 1 STAT. 76, 77, THERE IS
NO IMPLICATION THAT THE COURT REGARDED THIS STATUTE AS AN "OCCUPATION"
BY CONGRESS OF A FIELD OTHERWISE OF CONCURRENT JURISDICTION.  AND IN
KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149, 157-158, THE COURT
EXPLAINED THE JENSEN CASE ENTIRELY IN TERMS OF THE EXCLUSIVE FEDERAL
JURISDICTION CREATED BY ARTICLE III, SEC. 2, AND ARTICLE I, SEC. 8, OF
THE CONSTITUTION.  REFERENCE TO SEC. 9 OF THE JUDICIARY ACT OF 1789 WAS
MADE ONLY FOR THE PURPOSE OF POINTING OUT THAT A CLAUSE EMBODIED IN IT,
WHICH SAVED CERTAIN COMMON LAW REMEDIES, "HAD NO APPLICATION."    FN3
CF.:  "IN VIEW OF THESE CONSTITUTIONAL PROVISIONS AND THE FEDERAL ACT
IT WOULD BE DIFFICULT, IF NOT IMPOSSIBLE, TO DEFINE WITH EXACTNESS JUST
HOW FAR THE GENERAL MARITIME LAW MAY BE CHANGED, MODIFIED, OR AFFECTED
BY STATE LEGISLATION.  THAT THIS MAY BE DONE TO SOME EXTENT CANNOT BE
DENIED."  SOUTHERN PACIFIC CO. V. JENSEN, SUPRA, 216. 

FN4  "SEC.  5.  THE LIABILITY OF AN EMPLOYER PRESCRIBED IN SECTION 4
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, EXCEPT THAT IF AN EMPLOYER FAILS TO SECURE PAYMENT OF
COMPENSATION AS REQUIRED BY THIS ACT, AN INJURED EMPLOYEE, OR HIS LEGAL
REPRESENTATIVE IN CASE DEATH RESULTS FROM THE INJURY, MAY ELECT TO
CLAIM COMPENSATION UNDER THIS ACT, OR TO MAINTAIN AN ACTION AT LAW OR
IN ADMIRALTY FOR DAMAGES ON ACCOUNT OF SUCH INJURY OR DEATH.  IN SUCH
ACTION THE DEFENDANT MAY NOT PLEAD AS A DEFENSE THAT THE INJURY WAS
CAUSED BY THE NEGLIGENCE OF A FELLOW SERVANT, NOR THAT THE EMPLOYEE
ASSUMED THE RISK OF HIS EMPLOYMENT, NOR THAT THE INJURY WAS DUE TO THE
CONTRIBUTORY NEGLIGENCE OF THE EMPLOYEE." 
..END :






BRIDGES V. CALIFORNIA, 314 U.S. 252 


NO. 1.  ARGUED OCTOBER 18, 21, 1940(NO. 19, 1940 TERM).  -  REARGUED
OCTOBER 13, 1941.  - DECIDED DECEMBER 8, 1941.  - 14 CAL.2D 464, 94
P.2D 983 - 15 CAL.2D 99, 98 P.2D 1029, REVERSED. 


1.  IN DETERMINING WHETHER PUNISHMENT FOR AN OUT-OF-COURT PUBLICATION
CONCERNING A PENDING CASE, AS A CONTEMPT, IS CONSISTENT WITH GUARANTIES
OF THE FEDERAL CONSTITUTION, THE PROBLEM IN THE CASE OF A JUDGMENT
BASED UPON A PARTICULARIZED STATUTORY DECLARATION OF THE POLICY OF A
STATE IS DIFFERENT FROM THAT WHERE THE JUDGMENT IS BASED UPON A COMMON
LAW CONCEPT OF A GENERAL NATURE.  P. 260. 

2.  THE "CLEAR AND PRESENT DANGER" CASES, DECIDED BY THIS COURT,
INDICATE THAT THE SUBSTANTIVE EVIL LIKELY TO RESULT MUST BE EXTREMELY
SERIOUS AND THE DEGREE OF IMMINENCE EXTREMELY HIGH BEFORE UTTERANCES
CAN BE PUNISHED.  P. 263. 

3.  THE "CLEAR AND PRESENT DANGER" CASES DO NOT MARK THE FARTHEST
CONSTITUTIONAL BOUNDARIES OF PROTECTED EXPRESSION; NOR DO THEY MORE
THAN RECOGNIZE A MINIMUM COMPULSION OF THE BILL OF RIGHTS.  P. 263. 

4.  THE FREEDOM OF SPEECH AND OF THE PRESS SECURED BY THE FIRST
AMENDMENT AGAINST ABRIDGMENT BY THE UNITED STATES IS SIMILARLY SECURED
TO ALL PERSONS BY THE FOURTEENTH AGAINST ABRIDGMENT BY A STATE.  P.
263, N. 6. 

5.  THE FIRST AMENDMENT'S PROHIBITION OF "ANY LAW ABRIDGING THE
FREEDOM OF SPEECH OR OF THE PRESS" MUST BE GIVEN THE BROADEST SCOPE
THAT CAN BE COUNTENANCED IN AN ORDERLY SOCIETY.  P. 265. 

6.  THE FIRST AMENDMENT CAN NOT BE TAKEN AS APPROVING ALL PRACTICES
IN RESPECT TO PUNISHMENT FOR CONTEMPT WHICH PREVAILED IN ENGLAND AT THE
TIME OF ITS RATIFICATION.  P. 265. 

7.  THE "INHERENT TENDENCY" OR "REASONABLE TENDENCY" OF AN OUT-OF
COURT PUBLICATION TO CAUSE DISRESPECT FOR THE JUDICIARY OR INTERFERE
WITH THE ORDERLY ADMINISTRATION OF JUSTICE IN A PENDING CASE IS NOT
SUFFICIENT TO ESTABLISH PUNISHABLE CONTEMPT.  P. 272. 

8.  UPON THE FACTS OF THIS CASE, HELD THAT CONVICTIONS OF A NEWSPAPER
PUBLISHER AND EDITOR FOR CONTEMPT, BASED ON THE PUBLICATION OF
EDITORIALS COMMENTING UPON CASES PENDING IN A STATE COURT, WERE
VIOLATIVE OF CONSTITUTIONAL RIGHTS OF FREEDOM OF SPEECH AND OF THE
PRESS.  P. 271. 

9.  THE CONVICTION OF A LABOR LEADER FOR CONTEMPT OF A STATE COURT,
BASED UPON HIS PUBLICATION IN THE PRESS OF A TELEGRAM WHICH HE HAD SENT
TO THE SECRETARY OF LABOR, IN WHICH HE CRITICIZED THE DECISION OF A
JUDGE IN A CASE INVOLVING A LABOR DISPUTE AND INDICATED THAT
ENFORCEMENT OF THE DECREE WOULD RESULT IN A STRIKE, HELD VIOLATIVE OF
CONSTITUTIONAL RIGHTS OF FREEDOM OF SPEECH AND OF THE PRESS.  P. 275. 

BRIDGES V. CALIFORNIA.* 

*TOGETHER WITH NO. 3, TIMES-MIRROR CO. ET AL. V. SUPERIOR COURT OF
CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, ALSO ON WRIT OF
CERTIORARI, 310 U.S. 623, TO THE SUPREME COURT OF CALIFORNIA.  ARGUED
OCTOBER 21, 1940(NO. 64, 1940 TERM); REARGUED OCTOBER 13, 14, 1941. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

CERTIORARI, 309 U.S. 649, 310 U.S. 623, TO REVIEW, IN TWO CASES, THE
AFFIRMANCE OF CONVICTIONS AND SENTENCES FOR CONTEMPT OF COURT. 

THE POWER OF STATE JUDGES TO PUNISH FOR CONTEMPT IS RESTRICTED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE SAME EXTENT AS IS
THE POWER OF THE EXECUTIVE AND LEGISLATIVE BRANCHES.  BRINKERHOFF-FARIS
CO. V. HILL, 281 U.S. 673, 680. 

THERE ARE SPECIAL REASONS WHY JUDICIAL ACTION IN PUNISHING FOR
CONTEMPT SHOULD BE SUBJECT TO SCRUTINY ON CONSTITUTIONAL GROUNDS. 
WHERE LEGISLATIVE ACTION OR EXECUTIVE ACTION IS IN QUESTION, REVIEW IS
BY A DIFFERENT BRANCH OF GOVERNMENT.  NOT SO IN CONTEMPT CASES.  HERE
THE JUDICIARY REVIEWS THE ACTS OF ITS OWN MEMBERS.  MOREOVER, IN MANY
CASES, ALTHOUGH NOT HERE, THE ACTION UNDER REVIEW WAS TAKEN BY THE VERY
JUDGE CRITICIZED IN THE PUBLICATION COMPLAINED OF.  AND IN ALL CASES
THE PROCEDURE IS SUMMARY, WITHOUT THE SAFEGUARD OF TRIAL BY JURY. 

WHERE, AS HERE, THE ACT COMPLAINED OF IS AN EXPRESSION OF OPINION
CONCERNING JUDICIAL ACTION AND THE EXPRESSION TAKES PLACE OUTSIDE OF
THE COURTROOM, THERE CAN BE NO PUNISHMENT UNLESS THE EXPRESSION
ACTUALLY OBSTRUCTED JUDICIAL ACTION, OR WAS INTENDED IMPROPERLY TO
INFLUENCE JUDICIAL ACTION, OR WHERE, IN THE ABSENCE OF SUCH INTENT,
THERE WAS A CLEAR AND PRESENT DANGER THAT JUDICIAL ACTION WOULD BE
IMPROPERLY INFLUENCED. 

THE LINE SOUGHT TO BE DRAWN IN THE CASE AT BAR BETWEEN CASES PENDING
AND CASES DETERMINED HAS NO SUBSTANTIAL MEANING.  TO HOLD THAT
PUBLICATIONS MAY BE PUNISHED MERELY BECAUSE THE TIME FOR REHEARING HAS
NOT EXPIRED EXALTS FORM ABOVE SUBSTANCE, ESTABLISHES A CRITERION
LACKING IN REASON AND SETS A TRAP FOR THE UNWARY.  THE LAYMAN SELDOM
KNOWS ANYTHING ABOUT WHEN REHEARINGS ARE AVAILABLE.  EXPERIENCE HAS
TAUGHT HIM, MOREOVER, THAT JUDGES CHANGE THEIR MINDS IN A NEGLIGIBLE
PROPORTION OF CASES, SO THAT HE CONSIDERS THE RIGHT TO ASK FOR A
REHEARING ILLUSORY. 

THE "REASONABLE TENDENCY" TEST WILL ENMESH ANYONE WHO CRITICIZES A
JUDICIAL DECISION IMMEDIATELY AFTER IT IS RENDERED, IF A JUDGE CAN BE
PERSUADED THAT THE CRITIC OUGHT TO HAVE FORESEEN THAT HIS WORDS MIGHT
HAVE SOME EFFECT ON THE JUDGE CRITICIZED OR ON THE PUBLIC REACTION TO
COURTS IN GENERAL. 

IF THE STATE MAY NOT PUNISH ONE CHARGED WITH ATTEMPTING TO OVERTHROW
IT ON A SHOWING ONLY OF REASONABLE TENDENCY TO ACCOMPLISH THAT UNLAWFUL
END, IT SHOULD HAVE NO RIGHT TO PUNISH ON A SHOWING OF LIKE CHARACTER
FOR THE MUCH LESS SERIOUS OFFENSE OF CONTEMPT. 

THERE WERE HERE NO SPECIAL FACTS TO JUSTIFY THE INFERENCE THAT THERE
WAS ANY CLEAR DANGER THAT OBSTRUCTION OF JUSTICE WOULD RESULT FROM THE
PUBLICATION OF THE TELEGRAM.  THE STATEMENTS IN THE TELEGRAM WERE
EXPRESSED, NOT WITH THE PURPOSE OF INTERFERING WITH THE ADMINISTRATION
OF JUSTICE, BUT WITH THE HOPE THAT THE SECRETARY OF LABOR WOULD FIND A
MEANS OF SOLVING THE CONTROVERSY BETWEEN THE TWO COMPETING UNIONS IN A
FORUM OTHER THAN THE JUDICIAL ONE. 

IN ANY EVENT, THE SENDING AND PUBLICATION OF THE TELEGRAM WERE THE
EXERCISE OF THE RIGHT TO PETITION THE GOVERNMENT.  CALIFORNIA HAD NO
POWER TO RESTRICT THIS RIGHT BY PUNISHING ITS EXERCISE AS A CONTEMPT. 
THE RIGHT OF PETITION IS PROTECTED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  AND WHEN THE PETITION IS ADDRESSED TO THE
NATIONAL GOVERNMENT ON AN ISSUE OF NATIONAL CONCERN, IT IS ALSO
PROTECTED BY THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH
AMENDMENT.  HAGUE V. C.I.O., 307 U.S. 496; UNITED STATES V. CRUIKSHANK,
92 U.S. 542. 

THE CLEAR AND PRESENT DANGER DOCTRINE SHOULD BE APPLIED. 

THE CLEAR AND PRESENT DANGER DOCTRINE REQUIRES A WEIGHING OF THE
EVIDENCE AND A DETERMINATION "WHETHER THE WORDS USED ARE USED IN SUCH
CIRCUMSTANCES AND ARE OF SUCH A NATURE AS TO CREATE A CLEAR AND PRESENT
DANGER THAT THEY WILL BRING ABOUT" A SUBSTANTIAL INTERFERENCE WITH THE
ORDERLY ADMINISTRATION OF JUSTICE.  SCHENCK V. UNITED STATES, 249 U.S.
47, 52; SCHAEFER V. UNITED STATES, 251 U.S. 466, 482; GITLOW V. NEW
YORK, 268 U.S. 652, 672; HERNDON V. LOWRY, 301 U.S. 242, 256; THORNHILL
V. ALABAMA, 310 U.S. 88, 105; CANTWELL V. CONNECTICUT, 310 U.S. 296,
311. 

THE REASONABLE TENDENCY TEST IS SO VAGUE AND INDEFINITE THAT IT "IS
REPUGNANT TO THE GUARANTEE OF LIBERTY CONTAINED IN THE FOURTEENTH
AMENDMENT."  HERNDON V. LOWRY, SUPRA, 259. 

THIS COURT HAS NOT SUBORDINATED CONSTITUTIONAL LIBERTIES TO
GOVERNMENTAL FUNCTIONS.  THE PRACTICE HAS BEEN TO RECONCILE THE TWO. 
WHITNEY V. CALIFORNIA, 274 U.S. 357, 374; HERNDON V. LOWRY, 301 U.S.
242, 258; SCHNEIDER V. STATE, 308 U.S. 147, 161, 164; THORNHILL V.
ALABAMA, 310 U.S. 88, 95-96; CANTWELL V. CONNECTICUT, 310 U.S. 296,
304, 307, 308; MINERSVILLE SCHOOL DIST. V. GOBITIS, 310 U.S. 586, 593
594, 596; MILK WAGON DRIVERS UNION V. MEADOWMOOR DAIRIES, 312 U.S. 287,
298-299; AMERICAN FEDERATION OF LABOR V. SWING, 312 U.S. 321, 325-326. 

IN SUMMARY PROCEEDINGS FOR CONTEMPT BY PUBLICATION, ADOPTION OF THE
ACTUAL INTERFERENCE TEST OR THE CLEAR AND PRESENT DANGER DOCTRINE WILL
CONFORM TO DEJONGE V. OREGON, 299 U.S. 353, 364-365, WHICH DECLARED
THAT "LEGISLATIVE INTERVENTION CAN FIND CONSTITUTIONAL JUSTIFICATION
ONLY BY DEALING WITH THE ABUSE.  THE RIGHTS THEMSELVES MUST NOT BE
CURTAILED."  PROSCRIBING ALL COMMENT ON JUDICIAL PROCEEDINGS UNTIL
FINALLY TERMINATED WOULD ABRIDGE THE RIGHT OF FREE SPEECH.  HOWEVER,
THE RIGHT WOULD NOT BE ABRIDGED, BUT ITS ABUSE WOULD BE DEALT WITH, IF
COMMENT UPON PENDING JUDICIAL PROCEEDINGS IS PROSCRIBED ONLY WHEN IT IS
OF SUCH A NATURE AND PUBLISHED UNDER SUCH CIRCUMSTANCES AS TO BRING
ABOUT AN ACTUAL INTERFERENCE, OR CREATE A CLEAR AND PRESENT DANGER THAT
IT WILL BRING ABOUT A SUBSTANTIAL INTERFERENCE, WITH THE JUDICIAL
PROCEEDINGS ABOUT WHICH COMMENT IS MADE. 

THE DETERMINATION OF WHAT CONSTITUTES CONTEMPT OF A STATE COURT, AND
THE CHARACTER OF PUNISHMENT THEREFOR, ARE MATTERS EXCLUSIVELY WITHIN
THE CONTROL OF THE STATE.  PATTERSON V. COLORADO, 205 U.S. 454. 

FROM THE STANDPOINT OF DUE PROCESS, ANTIQUITY OF THE PROCESS IS THE
HALLMARK OF ACCEPTABILITY, WHETHER THE MATTER BE VIEWED ADJECTIVELY OR
SUBSTANTIVELY.  IF INHERENT OR REASONABLE TENDENCY TO INFLUENCE OR
OTHERWISE INTERFERE WITH THE DELIBERATIONS OF A COURT IN A PENDING
MATTER WAS AN ESTABLISHED CRITERION OF CONSTRUCTIVE CONTEMPT AT THE
TIME OF THE ADOPTION OF THE FEDERAL CONSTITUTION, ITS APPLICATION TODAY
CAN NOT CONSTITUTE A DENIAL OF DUE PROCESS.  THE INHERENT OR REASONABLE
TENDENCY CRITERION HAS BEEN ESTABLISHED FOR CONSTRUCTIVE CONTEMPT FOR A
PERIOD OF TWO HUNDRED YEARS OR MORE. 

WHEREAS THE FEDERAL STATUTE MADE "OBSTRUCTION" THE TEST, THE
CALIFORNIA PENAL CODE MADE "DIRECT TENDENCY" THE TEST.  THE CODIFIERS
INCORPORATED NOT ONLY "TENDENCY" AS A CRITERION FOR ACTS WHICH MUST BE
ACTUALLY OBSTRUCTIVE UNDER THE FEDERAL STATUTE, BUT ALSO ADOPTED THE
COMMON LAW AS TO CONTEMPTS GENERALLY.  THE CALIFORNIA DECISIONS HAVE
UNIFORMLY HELD THIS TO BE THE PROPER CRITERION, SOMETIMES REFERRING TO
THE STATUTE AND SOMETIMES TO THE INHERENT POWER OF THE COURT.  MATTER
OF TYLER, 64 CAL. 434, 438; EX PARTE BARRY, 85 CAL. 603, 607; IN RE
SHORTRIDGE, 99 CAL. 526, 532, 533; IN RE SHULER, 210 CAL. 402; IN RE
LINDSLEY, 75 CAL. APP. 124; LINDSLEY V. SUPERIOR COURT, 76 CAL. APP.
428; IN RE SAN FRANCISCO CHRONICLE, 1 CAL.2D 637. 

THE CLEAR AND PRESENT DANGER DOCTRINE HAS NEVER FOUND ITS WAY INTO
THE LAW OF CONTEMPT. 

NYE V. UNITED STATES, 313 U.S. 33, DEALT ONLY WITH THE EFFECT OF THE
FEDERAL STATUTE WHICH DEFINES THE METHOD OF PROCEDURE FOR PUNISHMENT OF
VARIOUS TYPES OF CONTEMPT AND LIMITS THOSE WHICH MAY BE SUMMARILY DEALT
WITH. 

COMMON-LAW DOCTRINE OF REASONABLE TENDENCY INTO THE STATUTES OF
CALIFORNIA.  IF THE STATUTORY TEST BE ADEQUATE FROM A CONSTITUTIONAL
STANDPOINT, THE EVIDENCE WILL NOT BE REVIEWED EXCEPT FOR THE LIMITED
PURPOSE OF DETERMINING WHETHER, AS EXPRESSED IN THE MILK WAGON DRIVERS
UNION CASE, 312 U.S. 287, THE CONVICTION RESTS UPON "INSUBSTANTIAL
FINDINGS OF FACT" AMOUNTING TO "A PALPABLE EVASION OF THE
CONSTITUTIONAL GUARANTY." 

BUT IF THE REASONABLE TENDENCY CRITERION BE CONSIDERED INDEPENDENTLY
OF THE CALIFORNIA STATUTES, IT POSSESSES, ASIDE FROM ITS ANCIENT
LINEAGE, ADEQUATE CERTAINTY TO MEET THE DEMANDS OF DUE PROCESS.  CF.
HERNDON V. LOWRY, 301 U.S. 242. 

REASONABLE TENDENCY MAY BE MADE A NEW STATUTORY STANDARD OF GUILT. 
WATERS-PIERCE OIL CO. V. TEXAS, 212 U.S. 86. 

A STATUTORY OR OTHER DEFINITION OF CRIME IS NOT VAGUE FOR UNCERTAINTY
"MERELY BECAUSE IT THROWS UPON MEN THE RISK OF RIGHTLY ESTIMATING A
MATTER OF DEGREE."  THERE MUST BE AN UNCERTAINTY IN THE STANDARD
ITSELF, AS DISTINGUISHED FROM A MERE MATTER OF DIFFICULTY IN APPLYING
THE STANDARD TO THE GIVEN FACTS.  "'DRAWING THE LINE' IS A RECURRENT
DIFFICULTY IN THOSE FIELDS OF THE LAW WHERE DIFFERENCES IN DEGREE
PRODUCE ULTIMATE DIFFERENCES IN KIND."  HARRISON V. SCHAFFNER, 312 U.S.
AT 583; GORIN V. UNITED STATES, 312 U.S. 19. 

DIFFERENTIATION BETWEEN INHERENT TENDENCY AND CLEAR PRESENT DANGER AS
APPLIED TO CONSTRUCTIVE CONTEMPTS IS FUTILE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THESE TWO CASES, WHILE GROWING OUT OF DIFFERENT CIRCUMSTANCES AND
CONCERNING DIFFERENT PARTIES, BOTH RELATE TO THE SCOPE OF OUR NATIONAL
CONSTITUTIONAL POLICY SAFEGUARDING FREE SPEECH AND A FREE PRESS.  ALL
OF THE PETITIONERS WERE ADJUDGED GUILTY AND FINED FOR CONTEMPT OF COURT
BY THE SUPERIOR COURT OF LOS ANGELES COUNTY.  THEIR CONVICTION RESTED
UPON COMMENTS PERTAINING TO PENDING LITIGATION WHICH WERE PUBLISHED IN
NEWSPAPERS.  IN THE SUPERIOR COURT, AND LATER IN THE CALIFORNIA SUPREME
COURT, PETITIONERS CHALLENGED THE STATE'S ACTION AS AN ABRIDGMENT,
PROHIBITED BY THE FEDERAL CONSTITUTION, OF FREEDOM OF SPEECH AND OF THE
PRESS; BUT THE SUPERIOR COURT OVERRULED THIS CONTENTION, AND THE
SUPREME COURT AFFIRMED.  FN1  THE IMPORTANCE OF THE CONSTITUTIONAL
QUESTION PROMPTED US TO GRANT CERTIORARI.  309 U.S. 649; 310 U.S. 623. 

IN BRIEF, THE STATE COURTS ASSERTED AND EXERCISED A POWER TO PUNISH
PETITIONERS FOR PUBLISHING THEIR VIEWS CONCERNING CASES NOT IN ALL
RESPECTS FINALLY DETERMINED, UPON THE FOLLOWING CHAIN OF REASONING:
CALIFORNIA IS INVESTED WITH THE POWER AND DUTY TO PROVIDE AN ADEQUATE
ADMINISTRATION OF JUSTICE; BY VIRTUE OF THIS POWER AND DUTY, IT CAN
TAKE APPROPRIATE MEASURES FOR PROVIDING FAIR JUDICIAL TRIALS FREE FROM
COERCION OR INTIMIDATION; INCLUDED AMONG SUCH APPROPRIATE MEASURES IS
THE COMMON LAW PROCEDURE OF PUNISHING CERTAIN INTERFERENCES AND
OBSTRUCTIONS THROUGH CONTEMPT PROCEEDINGS; THIS PARTICULAR MEASURE,
DEVOLVING UPON THE COURTS OF CALIFORNIA BY REASON OF THEIR CREATION AS
COURTS, INCLUDES THE POWER TO PUNISH FOR PUBLICATIONS MADE OUTSIDE THE
COURT ROOM IF THEY TEND TO INTERFERE WITH THE FAIR AND ORDERLY
ADMINISTRATION OF JUSTICE IN A PENDING CASE; THE TRIAL COURT HAVING
FOUND THAT THE PUBLICATIONS HAD SUCH A TENDENCY, AND THERE BEING
SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDING, THE PUNISHMENTS HERE
IMPOSED WERE AN APPROPRIATE EXERCISE OF THE STATE'S POWER; IN SO FAR AS
THESE PUNISHMENTS CONSTITUTE A RESTRICTION ON LIBERTY OF EXPRESSION,
THE PUBLIC INTEREST IN THAT LIBERTY WAS PROPERLY SUBORDINATED TO THE
PUBLIC INTEREST IN JUDICIAL IMPARTIALITY AND DECORUM.  FN2 

IF THE INFERENCE OF CONFLICT RAISED BY THE LAST CLAUSE BE CORRECT,
THE ISSUE BEFORE US IS OF THE VERY GRAVEST MOMENT.  FOR FREE SPEECH AND
FAIR TRIALS ARE TWO OF THE MOST CHERISHED POLICIES OF OUR CIVILIZATION,
AND IT WOULD BE A TRYING TASK TO CHOOSE BETWEEN THEM.  BUT EVEN IF SUCH
A CONFLICT IS NOT ACTUALLY RAISED BY THE QUESTION BEFORE US, WE ARE
STILL CONFRONTED WITH THE DELICATE PROBLEMS ENTAILED IN PASSING UPON
THE DELIBERATIONS OF THE HIGHEST COURT OF A STATE.  THIS IS NOT,
HOWEVER, SOLELY AN ISSUE BETWEEN STATE AND NATION, AS IT WOULD BE IF WE
WERE CALLED UPON TO MEDIATE IN ONE OF THOSE TROUBLOUS SITUATIONS WHERE
EACH CLAIMS TO BE THE REPOSITORY OF A PARTICULAR SOVEREIGN POWER.  TO
BE SURE, THE EXERCISE OF POWER HERE IN QUESTION WAS BY A STATE JUDGE. 
BUT IN DECIDING WHETHER OR NOT THE SWEEPING CONSTITUTIONAL MANDATE
AGAINST ANY LAW "ABRIDGING THE FREEDOM OF SPEECH OR OF THE PRESS"
FORBIDS IT, WE ARE NECESSARILY MEASURING A POWER OF ALL AMERICAN
COURTS, BOTH STATE AND FEDERAL, INCLUDING THIS ONE. 

                                   I 

IT IS TO BE NOTED AT ONCE THAT WE HAVE NO DIRECTION BY THE
LEGISLATURE OF CALIFORNIA THAT PUBLICATIONS OUTSIDE THE COURT ROOM
WHICH COMMENT UPON A PENDING CASE IN A SPECIFIED MANNER SHOULD BE
PUNISHABLE.  AS WE SAID IN CANTWELL V. CONNECTICUT, 310 U.S. 296, 307
308, SUCH A "DECLARATION OF THE STATE'S POLICY WOULD WEIGH HEAVILY IN
ANY CHALLENGE OF THE LAW AS INFRINGING CONSTITUTIONAL LIMITATIONS." 
BUT AS WE ALSO SAID THERE, THE PROBLEM IS DIFFERENT WHERE "THE JUDGMENT
IS BASED ON A COMMON LAW CONCEPT OF THE MOST GENERAL AND UNDEFINED
NATURE."  ID. 308.  CF. HERNDON V. LOWRY, 301 U.S. 242, 261-264.  FOR
HERE THE LEGISLATURE OF CALIFORNIA HAS NOT APPRAISED A PARTICULAR KIND
OF SITUATION AND FOUND A SPECIFIC DANGER  FN3  SUFFICIENTLY IMMINENT TO
JUSTIFY A RESTRICTION ON A PARTICULAR KIND OF UTTERANCE.  THE JUDGMENTS
BELOW, THEREFORE, DO NOT COME TO US ENCASED IN THE ARMOR WROUGHT BY
PRIOR LEGISLATIVE DELIBERATION.  UNDER SUCH CIRCUMSTANCES, THIS COURT
HAS SAID THAT "IT MUST NECESSARILY BE FOUND, AS AN ORIGINAL QUESTION,"
THAT THE SPECIFIED PUBLICATIONS INVOLVED CREATED "SUCH LIKELIHOOD OF
BRINGING ABOUT THE SUBSTANTIVE EVIL AS TO DEPRIVE (THEM) OF THE
CONSTITUTIONAL PROTECTION."  GITLOW V. NEW YORK, 268 U.S. 652, 671. 
HOW MUCH "LIKELIHOOD" IS ANOTHER QUESTION, "A QUESTION OF PROXIMITY AND
DEGREE"  FN4  THAT CANNOT BE COMPLETELY CAPTURED IN A FORMULA.  IN
SCHENCK V. UNITED STATES, HOWEVER, THIS COURT SAID THAT THERE MUST BE A
DETERMINATION OF WHETHER OR NOT "THE WORDS USED ARE USED IN SUCH
CIRCUMSTANCES AND ARE OF SUCH A NATURE AS TO CREATE A CLEAR AND PRESENT
DANGER THAT THEY WILL BRING ABOUT THE SUBSTANTIVE EVILS."  WE RECOGNIZE
THAT THIS STATEMENT, HOWEVER HELPFUL, DOES NOT COMPREHEND THE WHOLE
PROBLEM.  AS MR. JUSTICE BRANDEIS SAID IN HIS CONCURRING OPINION IN
WHITNEY V. CALIFORNIA, 274 U.S. 357, 374:  "THIS COURT HAS NOT YET
FIXED THE STANDARD BY WHICH TO DETERMINE WHEN A DANGER SHALL BE DEEMED
CLEAR; HOW REMOTE THE DANGER MAY BE AND YET BE DEEMED PRESENT." 

NEVERTHELESS, THE "CLEAR AND PRESENT DANGER" LANGUAGE  FN5  OF THE
SCHENCK CASE HAS AFFORDED PRACTICAL GUIDANCE IN A GREAT VARIETY OF
CASES IN WHICH THE SCOPE OF CONSTITUTIONAL PROTECTIONS OF FREEDOM OF
EXPRESSION WAS IN ISSUE.  IT HAS BEEN UTILIZED BY EITHER A MAJORITY OR
MINORITY OF THIS COURT IN PASSING UPON THE CONSTITUTIONALITY OF
CONVICTIONS UNDER ESPIONAGE ACTS, SCHENCK V. UNITED STATES, SUPRA;
ABRAMS V. UNITED STATES, 250 U.S. 616; UNDER A CRIMINAL SYNDICALISM
ACT, WHITNEY V. CALIFORNIA, SUPRA; UNDER AN "ANTIINSURRECTION" ACT,
HERNDON V. LOWRY, SUPRA; AND FOR BREACH OF THE PEACE AT COMMON LAW,
CANTWELL V. CONNECTICUT, SUPRA.  AND VERY RECENTLY WE HAVE ALSO
SUGGESTED THAT "CLEAR AND PRESENT DANGER" IS AN APPROPRIATE GUIDE IN
DETERMINING THE CONSTITUTIONALITY OF RESTRICTIONS UPON EXPRESSION WHERE
THE SUBSTANTIVE EVIL SOUGHT TO BE PREVENTED BY THE RESTRICTION IS
"DESTRUCTION OF LIFE OR PROPERTY, OR INVASION OF THE RIGHT OF
PRIVACY."  THORNHILL V. ALABAMA, 310 U.S. 88, 105. 

MOREOVER, THE LIKELIHOOD, HOWEVER GREAT, THAT A SUBSTANTIVE EVIL WILL
RESULT CANNOT ALONE JUSTIFY A RESTRICTION UPON FREEDOM OF SPEECH OR THE
PRESS.  THE EVIL ITSELF MUST BE "SUBSTANTIAL," BRANDEIS, J., CONCURRING
IN WHITNEY V. CALIFORNIA, SUPRA, 374; IT MUST BE "SERIOUS," ID. 376. 
AND EVEN THE EXPRESSION OF "LEGISLATIVE PREFERENCES OR BELIEFS" CANNOT
TRANSFORM MINOR MATTERS OF PUBLIC INCONVENIENCE OR ANNOYANCE INTO
SUBSTANTIVE EVILS OF SUFFICIENT WEIGHT TO WARRANT THE CURTAILMENT OF
LIBERTY OF EXPRESSION.  SCHNEIDER V. STATE, 308 U.S. 147, 161. 

WHAT FINALLY EMERGES FROM THE "CLEAR AND PRESENT DANGER" CASES IS A
WORKING PRINCIPLE THAT THE SUBSTANTIVE EVIL MUST BE EXTREMELY SERIOUS
AND THE DEGREE OF IMMINENCE EXTREMELY HIGH BEFORE UTTERANCES CAN BE
PUNISHED.  THOSE CASES DO NOT PURPORT TO MARK THE FURTHERMOST
CONSTITUTIONAL BOUNDARIES OF PROTECTED EXPRESSION, NOR DO WE HERE. 
THEY DO NO MORE THAN RECOGNIZE A MINIMUM COMPULSION OF THE BILL OF
RIGHTS.  FOR THE FIRST AMENDMENT  FN6  DOES NOT SPEAK EQUIVOCALLY.  IT
PROHIBITS ANY LAW "ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS." 
IT MUST BE TAKEN AS A COMMAND OF THE BROADEST SCOPE THAT EXPLICIT
LANGUAGE, READ IN THE CONTEXT OF A LIBERTY-LOVING SOCIETY, WILL ALLOW. 

                             II 

BEFORE ANALYZING THE PUNISHED UTTERANCES AND THE CIRCUMSTANCES
SURROUNDING THEIR PUBLICATION, WE MUST CONSIDER AN ARGUMENT WHICH, IF
VALID, WOULD DESTROY THE RELEVANCE OF THE FOREGOING DISCUSSION TO THIS
CASE.  IN BRIEF, THIS ARGUMENT IS THAT THE PUBLICATIONS HERE IN
QUESTION BELONG TO A SPECIAL CATEGORY MARKED OFF BY HISTORY,  - A
CATEGORY TO WHICH THE CRITERIA OF CONSTITUTIONAL IMMUNITY FROM
PUNISHMENT USED WHERE OTHER TYPES OF UTTERANCES ARE CONCERNED ARE NOT
APPLICABLE.  FOR, THE ARGUMENT RUNS, THE POWER OF JUDGES TO PUNISH BY
CONTEMPT OUT-OF-COURT PUBLICATIONS TENDING TO OBSTRUCT THE ORDERLY AND
FAIR ADMINISTRATION OF JUSTICE IN A PENDING CASE WAS DEEPLY ROOTED IN
ENGLISH COMMON LAW AT THE TIME THE CONSTITUTION WAS ADOPTED.  THAT THIS
HISTORICAL CONTENTION IS DUBIOUS HAS BEEN PERSUASIVELY ARGUED
ELSEWHERE.  FOX, CONTEMPT OF COURT, PASSIM, E.G., 207.  SEE ALSO
STANSBURY, TRIAL OF JAMES H. PECK, 430.  IN ANY EVENT IT NEED NOT
DETAIN US, FOR TO ASSUME THAT ENGLISH COMMON LAW IN THIS FIELD BECAME
OURS IS TO DENY THE GENERALLY ACCEPTED HISTORICAL BELIEF THAT "ONE OF
THE OBJECTS OF THE REVOLUTION WAS TO GET RID OF THE ENGLISH COMMON LAW
ON LIBERTY OF SPEECH AND OF THE PRESS."N7  SCHOFIELD, FREEDOM OF THE
PRESS IN THE UNITED STATES, 9 PUBLICATIONS AMER.  SOCIOL.  SOC., 67,
76. 

MORE SPECIFICALLY, IT IS TO FORGET THE ENVIRONMENT IN WHICH THE FIRST
AMENDMENT WAS RATIFIED.  IN PRESENTING THE PROPOSALS WHICH WERE LATER
EMBODIED IN THE BILL OF RIGHTS, JAMES MADISON, THE LEADER IN THE
PREPARATION OF THE FIRST AMENDMENT, SAID:  "ALTHOUGH I KNOW WHENEVER
THE GREAT RIGHTS, THE TRIAL BY JURY, FREEDOM OF THE PRESS, OR LIBERTY
OF CONSCIENCE, COME IN QUESTION IN THAT BODY (PARLIAMENT), THE INVASION
OF THEM IS RESISTED BY ABLE ADVOCATES, YET THEIR MAGNA CHARTA DOES NOT
CONTAIN ANY ONE PROVISION FOR THE SECURITY OF THOSE RIGHTS, RESPECTING
WHICH THE PEOPLE OF AMERICA ARE MOST ALARMED.  THE FREEDOM OF THE PRESS
AND RIGHTS OF CONSCIENCE, THOSE CHOICEST PRIVILEGES OF THE PEOPLE, ARE
UNGUARDED IN THE BRITISH CONSTITUTION."  1 ANNALS OF CONGRESS 1789
1790, 434.  AND MADISON ELSEWHERE WROTE THAT "THE STATE OF THE PRESS
...  UNDER THE COMMON LAW, CANNOT  ...  BE THE STANDARD OF ITS FREEDOM
IN THE UNITED STATES."  VI WRITINGS OF JAMES MADISON 1790-1802, 387. 

THERE ARE NO CONTRARY IMPLICATIONS IN ANY PART OF THE HISTORY OF THE
PERIOD IN WHICH THE FIRST AMENDMENT WAS FRAMED AND ADOPTED.  NO PURPOSE
IN RATIFYING THE BILL OF RIGHTS WAS CLEARER THAN THAT OF SECURING FOR
THE PEOPLE OF THE UNITED STATES MUCH GREATER FREEDOM OF RELIGION,
EXPRESSION, ASSEMBLY, AND PETITION THAN THE PEOPLE OF GREAT BRITAIN HAD
EVER ENJOYED.  IT CANNOT BE DENIED, FOR EXAMPLE, THAT THE RELIGIOUS
TEST OATH  FN8  OR THE RESTRICTIONS UPON ASSEMBLY  FN9  THEN PREVALENT
IN ENGLAND WOULD HAVE BEEN REGARDED AS MEASURES WHICH THE CONSTITUTION
PROHIBITED THE AMERICAN CONGRESS FROM PASSING.  AND SINCE THE SAME
UNEQUIVOCAL LANGUAGE IS USED WITH RESPECT TO FREEDOM OF THE PRESS, IT
SIGNIFIES A SIMILAR ENLARGEMENT OF THAT CONCEPT AS WELL.  FN10
RATIFIED AS IT WAS WHILE THE MEMORY OF MANY OPPRESSIVE ENGLISH
RESTRICTIONS ON THE ENUMERATED LIBERTIES WAS STILL FRESH, THE FIRST
AMENDMENT CANNOT REASONABLY BE TAKEN AS APPROVING PREVALENT ENGLISH
PRACTICES.  ON THE CONTRARY, THE ONLY CONCLUSION SUPPORTED BY HISTORY
IS THAT THE UNQUALIFIED PROHIBITIONS LAID DOWN BY THE FRAMERS WERE
INTENDED TO GIVE TO LIBERTY OF THE PRESS, AS TO THE OTHER LIBERTIES,
THE BROADEST SCOPE THAT COULD BE COUNTENANCED IN AN ORDERLY SOCIETY. 

THE IMPLICATIONS OF SUBSEQUENT AMERICAN HISTORY CONFIRM SUCH A
CONSTRUCTION OF THE FIRST AMENDMENT.  TO BE SURE, IT OCCURRED NO MORE
TO THE PEOPLE WHO LIVED IN THE DECADES FOLLOWING RATIFICATION THAN IT
WOULD TO US NOW THAT THE POWER OF COURTS TO PROTECT THEMSELVES FROM
DISTURBANCES AND DISORDER IN THE COURT ROOM BY USE OF CONTEMPT
PROCEEDINGS COULD SERIOUSLY BE CHALLENGED AS CONFLICTING WITH
CONSTITUTIONALLY SECURED GUARANTEES OF LIBERTY.  IN BOTH STATE AND
FEDERAL COURTS, THIS POWER HAS BEEN UNIVERSALLY RECOGNIZED.  SEE
ANDERSON V. DUNN, 6 WHEAT.  204, 227.  BUT ATTEMPTS TO EXPAND IT IN THE
POST - RATIFICATION YEARS EVOKED POPULAR REACTIONS THAT BESPEAK A
FEELING OF JEALOUS SOLICITUDE FOR FREEDOM OF THE PRESS.  IN
PENNSYLVANIA AND NEW YORK, FOR EXAMPLE, HEATED CONTROVERSIES AROSE OVER
ALLEGED ABUSES IN THE EXERCISE OF THE CONTEMPT POWER, WHICH IN BOTH
PLACES CULMINATED IN LEGISLATION PRACTICALLY  FN11  FORBIDDING SUMMARY
PUNISHMENT FOR PUBLICATIONS.  SEE NELLES AND KING, CONTEMPT BY
PUBLICATION, 28 COL. L. REV. 401, 409-422. 

IN THE FEDERAL COURTS, THERE WAS THE CELEBRATED CASE OF JUDGE PECK,
RECENTLY REFERRED TO BY THIS COURT IN NYE V. UNITED STATES, 313 U.S.
33, 45.  THE IMPEACHMENT PROCEEDINGS AGAINST HIM, IT SHOULD BE NOTED,
AND THE STRONG FEELINGS THEY ENGENDERED, WERE SET IN MOTION BY HIS
SUMMARY PUNISHMENT OF A LAWYER FOR PUBLISHING COMMENT ON A CASE WHICH
WAS ON APPEAL AT THE TIME OF PUBLICATION AND WHICH RAISED THE IDENTICAL
ISSUE OF SEVERAL OTHER CASES THEN PENDING BEFORE HIM.  HERE AGAIN
LEGISLATION WAS THE OUTCOME, CONGRESS PROCLAIMING IN A STATUTE
EXPRESSLY CAPTIONED "AN ACT DECLARATORY OF THE LAW CONCERNING CONTEMPTS
OF COURT,"  FN12  THAT THE POWER OF FEDERAL COURTS TO INFLICT SUMMARY
PUNISHMENT FOR CONTEMPT "SHALL NOT BE CONSTRUED TO EXTEND TO ANY CASES
EXCEPT THE MISBEHAVIOUR OF  ...  PERSONS IN THE PRESENCE OF THE SAID
COURTS, OR SO NEAR THERETO AS TO OBSTRUCT THE ADMINISTRATION OF JUSTICE
...  "  WHEN RECENTLY CALLED UPON TO INTERPRET THIS STATUTE, WE
OVERRULED THE EARLIER DECISION OF THIS COURT IN TOLEDO NEWSPAPER CO. V.
UNITED STATES, 247 U.S. 402, IN THE BELIEF THAT IT IMPROPERLY ENLARGED
THE STATED AREA OF SUMMARY PUNISHMENT.  NYE V. UNITED STATES, SUPRA.
HERE, AS IN THE NYE CASE, WE NEED NOT DETERMINE WHETHER THE STATUTE WAS
INTENDED TO DEMARCATE THE FULL POWER PERMISSIBLE UNDER THE CONSTITUTION
TO PUNISH BY CONTEMPT PROCEEDINGS.  BUT WE DO FIND IN THE ENACTMENT
VIEWED IN ITS HISTORICAL CONTEXT, A RESPECT FOR THE PROHIBITIONS OF THE
FIRST AMENDMENT, NOT AS MERE GUIDES TO THE FORMULATION OF POLICY, BUT
AS COMMANDS THE BREACH OF WHICH CANNOT BE TOLERATED. 

WE ARE AWARE THAT ALTHOUGH SOME STATES HAVE BY STATUTE OR DECISION
EXPRESSLY REPUDIATED THE POWER OF JUDGES TO PUNISH PUBLICATIONS AS
CONTEMPTS ON A FINDING OF MERE TENDENCY TO INTERFERE WITH THE ORDERLY
ADMINISTRATION OF JUSTICE IN A PENDING CASE, OTHER STATES HAVE
SANCTIONED THE EXERCISE OF SUCH A POWER.  (SEE NELLES AND KING, LOC. 
CIT.  SUPRA, 536-562, FOR A COLLECTION AND DISCUSSION OF STATE CASES.) 
BUT STATE POWER IN THIS FIELD WAS NOT TESTED IN THIS COURT FOR MORE
THAN A CENTURY.  FN13  NOT UNTIL 1925, WITH THE DECISION IN GITLOW V.
NEW YORK, SUPRA, 268 U.S. 652, DID THIS COURT RECOGNIZE IN THE
FOURTEENTH AMENDMENT THE APPLICATION TO THE STATES OF THE SAME
STANDARDS OF FREEDOM OF EXPRESSION AS, UNDER THE FIRST AMENDMENT, ARE
APPLICABLE TO THE FEDERAL GOVERNMENT.  AND THIS IS THE FIRST TIME SINCE
1925 THAT WE HAVE BEEN CALLED UPON TO DETERMINE THE CONSTITUTIONALITY
OF A STATE'S EXERCISE OF THE CONTEMPT POWER IN THIS KIND OF SITUATION. 
NOW THAT SUCH A CASE IS BEFORE US, WE CANNOT ALLOW THE MERE EXISTENCE
OF OTHER UNTESTED STATE DECISIONS TO DESTROY THE HISTORIC
CONSTITUTIONAL MEANING OF FREEDOM OF SPEECH AND OF THE PRESS. 

HISTORY AFFORDS NO SUPPORT FOR THE CONTENTION THAT THE CRITERIA
APPLICABLE UNDER THE CONSTITUTION TO OTHER TYPES OF UTTERANCES ARE NOT
APPLICABLE, IN CONTEMPT PROCEEDINGS, TO OUT-OF-COURT PUBLICATIONS
PERTAINING TO A PENDING CASE. 

                                  III 

WE MAY APPROPRIATELY BEGIN OUR DISCUSSION OF THE JUDGMENTS BELOW BY
CONSIDERING HOW MUCH, AS A PRACTICAL MATTER, THEY WOULD AFFECT LIBERTY
OF EXPRESSION.  IT MUST BE RECOGNIZED THAT PUBLIC INTEREST IS MUCH MORE
LIKELY TO BE KINDLED BY A CONTROVERSIAL EVENT OF THE DAY THAN BY A
GENERALIZATION, HOWEVER PENETRATING, OF THE HISTORIAN OR SCIENTIST. 
SINCE THEY PUNISH UTTERANCES MADE DURING THE PENDENCY OF A CASE, THE
JUDGMENTS BELOW THEREFORE PRODUCE THEIR RESTRICTIVE RESULTS AT THE
PRECISE TIME WHEN PUBLIC INTEREST IN THE MATTERS DISCUSSED WOULD
NATURALLY BE AT ITS HEIGHT.  MOREOVER, THE BAN IS LIKELY TO FALL NOT
ONLY AT A CRUCIAL TIME BUT UPON THE MOST IMPORTANT TOPICS OF
DISCUSSION.  HERE, FOR EXAMPLE, LABOR CONTROVERSIES WERE THE TOPICS OF
SOME OF THE PUBLICATIONS.  EXPERIENCE SHOWS THAT THE MORE ACUTE LABOR
CONTROVERSIES ARE, THE MORE LIKELY IT IS THAT IN SOME ASPECT THEY WILL
GET INTO COURT.  IT IS THEREFORE THE CONTROVERSIES THAT COMMAND MOST
INTEREST THAT THE DECISIONS BELOW WOULD REMOVE FROM THE ARENA OF PUBLIC
DISCUSSION. 

NO SUGGESTION CAN BE FOUND IN THE CONSTITUTION THAT THE FREEDOM THERE
GUARANTEED FOR SPEECH AND THE PRESS BEARS AN INVERSE RATIO TO THE
TIMELINESS AND IMPORTANCE OF THE IDEAS SEEKING EXPRESSION.  YET, IT
WOULD FOLLOW AS A PRACTICAL RESULT OF THE DECISIONS BELOW THAT ANYONE
WHO MIGHT WISH TO GIVE PUBLIC EXPRESSION TO HIS VIEWS ON A PENDING CASE
INVOLVING NO MATTER WHAT PROBLEM OF PUBLIC INTEREST, JUST AT THE TIME
HIS AUDIENCE WOULD BE MOST RECEPTIVE, WOULD BE AS EFFECTIVELY
DISCOURAGED AS IF A DELIBERATE STATUTORY SCHEME OF CENSORSHIP HAD BEEN
ADOPTED.  INDEED, PERHAPS MORE SO, BECAUSE UNDER A LEGISLATIVE
SPECIFICATION OF THE PARTICULAR KINDS OF EXPRESSIONS PROHIBITED AND THE
CIRCUMSTANCES UNDER WHICH THE PROHIBITIONS ARE TO OPERATE, THE SPEAKER
OR PUBLISHER MIGHT AT LEAST HAVE AN AUTHORITATIVE GUIDE TO THE
PERMISSIBLE SCOPE OF COMMENT, INSTEAD OF BEING COMPELLED TO ACT AT THE
PERIL THAT JUDGES MIGHT FIND IN THE UTTERANCE A "REASONABLE TENDENCY"
TO OBSTRUCT JUSTICE IN A PENDING CASE. 

THIS UNFOCUSSED THREAT IS, TO BE SURE, LIMITED IN TIME, TERMINATING
AS IT DOES UPON FINAL DISPOSITION OF THE CASE.  BUT THIS DOES NOT
CHANGE ITS CENSORIAL QUALITY.  AN ENDLESS SERIES OF MORATORIA ON PUBLIC
DISCUSSION, EVEN IF EACH WERE VERY SHORT, COULD HARDLY BE DISMISSED AS
AN INSIGNIFICANT ABRIDGMENT OF FREEDOM OF EXPRESSION.  AND TO ASSUME
THAT EACH WOULD BE SHORT IS TO OVERLOOK THE FACT THAT THE "PENDENCY" OF
A CASE IS FREQUENTLY A MATTER OF MONTHS OR EVEN YEARS RATHER THAN DAYS
OR WEEKS.  FN14    FOR THESE REASONS WE ARE CONVINCED THAT THE
JUDGMENTS BELOW RESULT IN A CURTAILMENT OF EXPRESSION THAT CANNOT BE
DISMISSED AS INSIGNIFICANT.  IF THEY CAN BE JUSTIFIED AT ALL, IT MUST
BE IN TERMS OF SOME SERIOUS SUBSTANTIVE EVIL WHICH THEY ARE DESIGNED TO
AVERT.  THE SUBSTANTIVE EVIL HERE SOUGHT TO BE AVERTED HAS BEEN
VARIOUSLY DESCRIBED BELOW.  FN15  IT APPEARS TO BE DOUBLE: DISRESPECT
FOR THE JUDICIARY; AND DISORDERLY AND UNFAIR ADMINISTRATION OF
JUSTICE.  THE ASSUMPTION THAT RESPECT FOR THE JUDICIARY CAN BE WON BY
SHIELDING JUDGES FROM PUBLISHED CRITICISM WRONGLY APPRAISES THE
CHARACTER OF AMERICAN PUBLIC OPINION.  FOR IT IS A PRIZED AMERICAN
PRIVILEGE TO SPEAK ONE'S MIND, ALTHOUGH NOT ALWAYS WITH PERFECT GOOD
TASTE,  FN16  ON ALL PUBLIC INSTITUTIONS.  AND AN ENFORCED SILENCE,
HOWEVER LIMITED, SOLELY IN THE NAME OF PRESERVING THE DIGNITY OF THE
BENCH, WOULD PROBABLY ENGENDER RESENTMENT, SUSPICION, AND CONTEMPT MUCH
MORE THAN IT WOULD ENHANCE RESPECT. 

THE OTHER EVIL FEARED, DISORDERLY AND UNFAIR ADMINISTRATION OF
JUSTICE, IS MORE PLAUSIBLY ASSOCIATED WITH RESTRICTING PUBLICATIONS
WHICH TOUCH UPON PENDING LITIGATION.  THE VERY WORD "TRIAL" CONNOTES
DECISIONS ON THE EVIDENCE AND ARGUMENTS PROPERLY ADVANCED IN OPEN
COURT.  LEGAL TRIALS ARE NOT LIKE ELECTIONS, TO BE WON THROUGH THE USE
OF THE MEETING-HALL, THE RADIO, AND THE NEWSPAPER.  BUT WE CANNOT START
WITH THE ASSUMPTION THAT PUBLICATIONS OF THE KIND HERE INVOLVED
ACTUALLY DO THREATEN TO CHANGE THE NATURE OF LEGAL TRIALS, AND THAT TO
PRESERVE JUDICIAL IMPARTIALITY, IT IS NECESSARY FOR JUDGES TO HAVE A
CONTEMPT POWER BY WHICH THEY CAN CLOSE ALL CHANNELS OF PUBLIC
EXPRESSION TO ALL MATTERS WHICH TOUCH UPON PENDING CASES.  WE MUST
THEREFORE TURN TO THE PARTICULAR UTTERANCES HERE IN QUESTION AND THE
CIRCUMSTANCES OF THEIR PUBLICATION TO DETERMINE TO WHAT EXTENT THE
SUBSTANTIVE EVIL OF UNFAIR ADMINISTRATION OF JUSTICE WAS A LIKELY
CONSEQUENCE, AND WHETHER THE DEGREE OF LIKELIHOOD WAS SUFFICIENT TO
JUSTIFY SUMMARY PUNISHMENT. 

THE LOS ANGELES TIMES EDITORIALS.  THE TIMES-MIRROR COMPANY,
PUBLISHER OF THE LOS ANGELES TIMES, AND L.D. HOTCHKISS, ITS MANAGING
EDITOR, WERE CITED FOR CONTEMPT FOR THE PUBLICATION OF THREE
EDITORIALS.  BOTH FOUND BY THE TRIAL COURT TO BE RESPONSIBLE FOR ONE OF
THE EDITORIALS, THE COMPANY AND HOTCHKISS WERE EACH FINED $100.  THE
COMPANY ALONE WAS HELD RESPONSIBLE FOR THE OTHER TWO, AND WAS FINED
$100 MORE ON ACCOUNT OF ONE, AND $300 MORE ON ACCOUNT OF THE OTHER. 

THE $300 FINE PRESUMABLY MARKS THE MOST SERIOUS OFFENSE.  THE
EDITORIAL THUS DISTINGUISHED WAS ENTITLED "PROBATION FOR GORILLAS?" 
AFTER VIGOROUSLY DENOUNCING TWO MEMBERS OF A LABOR UNION WHO HAD
PREVIOUSLY BEEN FOUND GUILTY OF ASSAULTING NONUNION TRUCK DRIVERS, IT
CLOSES WITH THE OBSERVATION:  "JUDGE A. A. SCOTT WILL MAKE A SERIOUS
MISTAKE IF HE GRANTS PROBATION TO MATTHEW SHANNON AND KENNAN HOLMES. 
THIS COMMUNITY NEEDS THE EXAMPLE OF THEIR ASSIGNMENT TO THE JUTE
MILL."  FN17  JUDGE SCOTT HAD PREVIOUSLY SET A DAY (ABOUT A MONTH AFTER
THE PUBLICATION) FOR PASSING UPON THE APPLICATION OF SHANNON AND HOLMES
FOR PROBATION AND FOR PRONOUNCING SENTENCE. 

THE BASIS FOR PUNISHING THE PUBLICATION AS CONTEMPT WAS BY THE TRIAL
COURT SAID TO BE ITS "INHERENT TENDENCY" AND BY THE SUPREME COURT ITS
"REASONABLE TENDENCY" TO INTERFERE WITH THE ORDERLY ADMINISTRATION OF
JUSTICE IN AN ACTION THEN BEFORE A COURT FOR CONSIDERATION.  IN
ACCORDANCE WITH WHAT WE HAVE SAID ON THE "CLEAR AND PRESENT DANGER"
CASES, NEITHER "INHERENT TENDENCY" NOR "REASONABLE TENDENCY" IS ENOUGH
TO JUSTIFY A RESTRICTION OF FREE EXPRESSION.  BUT EVEN IF THEY WERE
APPROPRIATE MEASURES, WE SHOULD FIND EXAGGERATION IN THE USE OF THOSE
PHRASES TO DESCRIBE THE FACTS HERE. 

FROM THE INDICATIONS IN THE RECORD OF THE POSITION TAKEN BY THE LOS
ANGELES TIMES ON LABOR CONTROVERSIES IN THE PAST, THERE COULD HAVE BEEN
LITTLE DOUBT OF ITS ATTITUDE TOWARD THE PROBATION OF SHANNON AND
HOLMES.  IN VIEW OF THE PAPER'S LONG-CONTINUED MILITANCY IN THIS FIELD,
IT IS INCONCEIVABLE THAT ANY JUDGE IN LOS ANGELES WOULD EXPECT ANYTHING
BUT ADVERSE CRITICISM FROM IT IN THE EVENT PROBATION WERE GRANTED.  YET
SUCH CRITICISM AFTER FINAL DISPOSITION OF THE PROCEEDINGS WOULD CLEARLY
HAVE BEEN PRIVILEGED.  HENCE, THIS EDITORIAL, GIVEN THE MOST
INTIMIDATING CONSTRUCTION IT WILL BEAR, DID NO MORE THAN THREATEN
FUTURE ADVERSE CRITICISM WHICH WAS REASONABLY TO BE EXPECTED ANYWAY IN
THE EVENT OF A LENIENT DISPOSITION OF THE PENDING CASE.  FN18  TO
REGARD IT, THEREFORE, AS IN ITSELF OF SUBSTANTIAL INFLUENCE UPON THE
COURSE OF JUSTICE WOULD BE TO IMPUTE TO JUDGES A LACK OF FIRMNESS,
WISDOM, OR HONOR,  - WHICH WE CANNOT ACCEPT AS A MAJOR PREMISE.  CF.
HOLMES, J., DISSENTING IN TOLEDO NEWSPAPER CO. V. UNITED STATES, 247
U.S. 402, 424. 

THE OTHER TWO EDITORIALS, PUBLICATION OF WHICH WAS FINED BELOW, ARE
SET OUT IN THE LOWER MARGIN.  FN19  WITH RESPECT TO THESE TWO
EDITORIALS, THERE IS NO DIVERGENCE OF CONCLUSIONS AMONG THE MEMBERS OF
THIS COURT.  WE ARE ALL OF THE OPINION THAT, UPON ANY FAIR
CONSTRUCTION, THEIR POSSIBLE INFLUENCE ON THE COURSE OF JUSTICE CAN BE
DISMISSED AS NEGLIGIBLE, AND THAT THE CONSTITUTION COMPELS US TO SET
ASIDE THE CONVICTIONS AS UNPERMISSIBLE EXERCISES OF THE STATE'S POWER. 
IN VIEW OF THE FOREGOING DISCUSSION OF "PROBATION FOR GORILLAS?",
ANALYSIS OF THESE EDITORIALS AND THEIR SETTING IS DEEMED UNNECESSARY. 

THE BRIDGES TELEGRAM.  WHILE A MOTION FOR A NEW TRIAL WAS PENDING IN
A CASE INVOLVING A DISPUTE BETWEEN AN A.F. OF L. UNION AND A C.I.O.
UNION OF WHICH BRIDGES WAS AN OFFICER, HE EITHER CAUSED TO BE PUBLISHED
OR ACQUIESCED IN THE PUBLICATION OF A TELEGRAM WHICH HE HAD SENT TO THE
SECRETARY OF LABOR.  THE TELEGRAM REFERRED TO THE JUDGE'S DECISION AS
"OUTRAGEOUS"; SAID THAT ATTEMPTED ENFORCEMENT OF IT WOULD TIE UP THE
PORT OF LOS ANGELES AND INVOLVE THE ENTIRE PACIFIC COAST; AND CONCLUDED
WITH THE ANNOUNCEMENT THAT THE C.I.O. UNION, REPRESENTING SOME TWELVE
THOUSAND MEMBERS, DID "NOT INTEND TO ALLOW STATE COURTS TO OVERRIDE THE
MAJORITY VOTE OF MEMBERS IN CHOOSING ITS OFFICERS AND REPRESENTATIVES
AND TO OVERRIDE THE NATIONAL LABOR RELATIONS BOARD."  FN20 

APPARENTLY BRIDGES' CONVICTION IS NOT RESTED AT ALL UPON HIS USE OF
THE WORD "OUTRAGEOUS."  THE REMAINDER OF THE TELEGRAM FAIRLY CONSTRUED
APPEARS TO BE A STATEMENT THAT IF THE COURT'S DECREE SHOULD BE ENFORCED
THERE WOULD BE A STRIKE.  IT IS NOT CLAIMED THAT SUCH A STRIKE WOULD
HAVE BEEN IN VIOLATION OF THE TERMS OF THE DECREE, NOR THAT IN ANY
OTHER WAY IT WOULD HAVE RUN AFOUL OF THE LAW OF CALIFORNIA.  ON NO
CONSTRUCTION, THEREFORE, CAN THE TELEGRAM BE TAKEN AS A THREAT EITHER
BY BRIDGES OR THE UNION TO FOLLOW AN ILLEGAL COURSE OF ACTION. 

MOREOVER, THIS STATEMENT OF BRIDGES WAS MADE TO THE SECRETARY OF
LABOR, WHO IS CHARGED WITH OFFICIAL DUTIES IN CONNECTION WITH THE
PREVENTION OF STRIKES.  WHATEVER THE CAUSE MIGHT BE IF A STRIKE WAS
THREATENED OR POSSIBLE THE SECRETARY WAS ENTITLED TO RECEIVE ALL
AVAILABLE INFORMATION.  INDEED, THE SUPREME COURT OF CALIFORNIA
RECOGNIZED THAT, PUBLICATION IN THE NEWSPAPERS ASIDE, IN SENDING THE
MESSAGE TO THE SECRETARY, BRIDGES WAS EXERCISING THE RIGHT OF PETITION
TO A DULY ACCREDITED REPRESENTATIVE OF THE UNITED STATES GOVERNMENT, A
RIGHT PROTECTED BY THE FIRST AMENDMENT.  FN21 

IT MUST BE RECOGNIZED THAT BRIDGES WAS A PROMINENT LABOR LEADER
SPEAKING AT A TIME WHEN PUBLIC INTEREST IN THE PARTICULAR LABOR
CONTROVERSY WAS AT ITS HEIGHT.  THE OBSERVATIONS WE HAVE PREVIOUSLY
MADE HERE UPON THE TIMELINESS AND IMPORTANCE OF UTTERANCES AS
EMPHASIZING RATHER THAN DIMINISHING THE VALUE OF CONSTITUTIONAL
PROTECTION, AND UPON THE BREADTH AND SERIOUSNESS OF THE CENSORIAL
EFFECTS OF PUNISHING PUBLICATIONS IN THE MANNER FOLLOWED BELOW, ARE
CERTAINLY NO LESS APPLICABLE TO A LEADING SPOKESMAN FOR LABOR THAN TO A
POWERFUL NEWSPAPER TAKING ANOTHER POINT OF VIEW. 

IN LOOKING AT THE REASON ADVANCED IN SUPPORT OF THE JUDGMENT OF
CONTEMPT, WE FIND THAT HERE, TOO, THE POSSIBILITY OF CAUSING UNFAIR
DISPOSITION OF A PENDING CASE IS THE MAJOR JUSTIFICATION ASSERTED.  AND
HERE AGAIN THE GIST OF THE OFFENSE, ACCORDING TO THE COURT BELOW, IS
INTIMIDATION. 

LET US ASSUME THAT THE TELEGRAM COULD BE CONSTRUED AS AN ANNOUNCEMENT
OF BRIDGES' INTENTION TO CALL A STRIKE, SOMETHING WHICH, IT IS
ADMITTED, NEITHER THE GENERAL LAW OF CALIFORNIA NOR THE COURT'S DECREE
PROHIBITED.  WITH AN EYE ON THE REALITIES OF THE SITUATION, WE CANNOT
ASSUME THAT JUDGE SCHMIDT WAS UNAWARE OF THE POSSIBILITY OF A STRIKE AS
A CONSEQUENCE OF HIS DECISION.  IF HE WAS NOT INTIMIDATED BY THE FACTS
THEMSELVES, WE DO NOT BELIEVE THAT THE MOST EXPLICIT STATEMENT OF THEM
COULD HAVE SIDETRACKED THE COURSE OF JUSTICE.  AGAIN, WE FIND
EXAGGERATION IN THE CONCLUSION THAT THE UTTERANCE EVEN "TENDED" TO
INTERFERE WITH JUSTICE.  IF THERE WAS ELECTRICITY IN THE ATMOSPHERE, IT
WAS GENERATED BY THE FACTS; THE CHARGE ADDED BY THE BRIDGES TELEGRAM
CAN BE DISMISSED AS NEGLIGIBLE.  THE WORDS OF MR. JUSTICE HOLMES,
SPOKEN IN REFERENCE TO VERY DIFFERENT FACTS, SEEM ENTIRELY APPLICABLE
HERE:  "I CONFESS THAT I CANNOT FIND IN ALL THIS OR IN THE EVIDENCE IN
THE CASE ANYTHING THAT WOULD HAVE AFFECTED A MIND OF REASONABLE
FORTITUDE, AND STILL LESS CAN I FIND THERE ANYTHING THAT OBSTRUCTED THE
ADMINISTRATION OF JUSTICE IN ANY SENSE THAT I POSSIBLY CAN GIVE TO
THOSE WORDS."  TOLEDO NEWSPAPER CO. V. UNITED STATES, SUPRA, 247 U.S.
AT 425.  REVERSED. 

FN1  BRIDGES V. SUPERIOR COURT, 14 CAL.2D 464, 94 P.2D 983; TIMES
MIRROR CO. V. SUPERIOR COURT, 15 CAL.2D 99, 98 P.2D 1029.  IN THE TIMES
MIRROR CASE, THE AFFIDAVITS OF COMPLAINT CONTAINED SEVEN COUNTS, EACH
BASED UPON THE PUBLICATION OF A DIFFERENT EDITORIAL.  THE SUPERIOR
COURT FOR LOS ANGELES COUNTY SUSTAINED A DEMURRER TO TWO OF THE COUNTS,
AND OF THE FIVE REMAINING COUNTS ON WHICH CONVICTION RESTED, THE
CALIFORNIA SUPREME COURT AFFIRMED AS TO THREE, REVERSED AS TO TWO. 

FN2  SEE TIMES-MIRROR CO. V. SUPERIOR COURT, SUPRA, 118, WHERE THE
FOLLOWING IS QUOTED WITH APPROVAL:  "LIBERTY OF THE PRESS IS
SUBORDINATE TO THE INDEPENDENCE OF THE JUDICIARY.  ...  " 

FN3  INDEED, THE ONLY EVIDENCE WE HAVE OF THE CALIFORNIA
LEGISLATURE'S APPRAISAL INDICATES APPROVAL OF A POLICY DIRECTLY
CONTRARY TO THAT HERE FOLLOWED BY THE CALIFORNIA COURTS.  FOR SEC.
1209, SUBSECTION 13, OF THE CALIFORNIA CODE OF CIVIL PROCEDURE (1937
ED.)  PROVIDES:  "  ... NO SPEECH OR PUBLICATION REFLECTING UPON OR
CONCERNING ANY COURT OR ANY OFFICER THEREOF SHALL BE TREATED OR
PUNISHED AS A CONTEMPT OF SUCH COURT UNLESS MADE IN THE IMMEDIATE
PRESENCE OF SUCH COURT WHILE IN SESSION AND IN SUCH A MANNER AS TO
ACTUALLY INTERFERE WITH ITS PROCEEDINGS."  THE CALIFORNIA SUPREME
COURT'S DECISION THAT THE STATUTE IS INVALID UNDER THE CALIFORNIA
CONSTITUTION IS AN AUTHORITATIVE DETERMINATION OF THAT POINT.  BUT THE
INFERENCES AS TO THE LEGISLATURE'S APPRAISAL OF THE DANGER ARISE FROM
THE ENACTMENT, AND ARE THEREFORE UNCHANGED BY THE SUBSEQUENT JUDICIAL
TREATMENT OF THE STATUTE. 

FN4  SCHENCK V. UNITED STATES, 249 U.S. 47, 52. 

FN5  RESTATEMENT OF THE PHRASE "CLEAR AND PRESENT DANGER" IN OTHER
TERMS HAS BEEN INFREQUENT.  COMPARE, HOWEVER:  "  ...  THE TEST TO BE
APPLIED  ... IS NOT THE REMOTE OR POSSIBLE EFFECT."  BRANDEIS, J.,
DISSENTING IN SCHAEFER V. UNITED STATES, 251 U.S. 466, 486.  "  ...  WE
SHOULD BE ETERNALLY VIGILANT AGAINST ATTEMPTS TO CHECK THE EXPRESSION
OF OPINIONS THAT WE LOATHE AND BELIEVE TO BE FRAUGHT WITH DEATH, UNLESS
THEY SO IMMINENTLY THREATEN IMMEDIATE INTERFERENCE WITH THE LAWFUL AND
PRESSING PURPOSES OF THE LAW THAT AN IMMEDIATE CHECK IS REQUIRED TO
SAVE THE COUNTRY."  HOLMES, J., DISSENTING IN ABRAMS V. UNITED STATES,
250 U.S. 616, 630; "TO JUSTIFY SUPPRESSION OF FREE SPEECH THERE MUST BE
REASONABLE GROUND TO FEAR THAT SERIOUS EVIL WILL RESULT IF FREE SPEECH
IS PRACTICED.  THERE MUST BE REASONABLE GROUND TO BELIEVE THAT THE
DANGER APPREHENDED IS IMMINENT."  BRANDEIS, J., CONCURRING IN WHITNEY
V. CALIFORNIA, 274 U.S. 357, 376.  THE ITALICS ARE OURS. 

FN6  "THE FREEDOM OF SPEECH AND OF THE PRESS SECURED BY THE FIRST
AMENDMENT AGAINST ABRIDGMENT BY THE UNITED STATES IS SIMILARLY SECURED
TO ALL PERSONS BY THE FOURTEENTH AGAINST ABRIDGMENT BY A STATE." 
SCHNEIDER V. STATE, 308 U.S. 147, 160. 

FN7  COMPARE JAMES BUCHANAN, QUOTED IN STANSBURY, TRIAL OF JAMES H.
PECK, 434:  "AT THE REVOLUTION WE SEPARATED OURSELVES FROM THE MOTHER
COUNTRY, AND WE HAVE ESTABLISHED A REPUBLICAN FORM OF GOVERNMENT,
SECURING TO THE CITIZENS OF THIS COUNTRY OTHER AND GREATER PERSONAL
RIGHTS, THAN THOSE ENJOYED UNDER THE BRITISH MONARCHY." 

FN8  16 GEO. II, C. 30.  THIS WAS NOT REPEALED UNTIL 1828.  9 GEO.
IV, C. 17. 

FN9  1 GEO. I, STAT. 2, C. 5.  CF. ALSO 36 GEO. III, C. 8, AND
DISCUSSION IN BUCKLE, HISTORY OF CIVILIZATION IN ENGLAND, VOL. I, 351. 

FN10  COMPARE VI WRITINGS OF JAMES MADISON, 1790-1802, 389:  "TO
THESE OBSERVATIONS ONE FACT WILL BE ADDED, WHICH DEMONSTRATES THAT THE
COMMON LAW CANNOT BE ADMITTED AS THE UNIVERSAL EXPOSITOR OF AMERICAN
TERMS,  ...  THE FREEDOM OF CONSCIENCE AND OF RELIGION ARE FOUND IN THE
SAME INSTRUMENTS WHICH ASSERT THE FREEDOM OF THE PRESS.  IT WILL NEVER
BE ADMITTED THAT THE MEANING OF THE FORMER, IN THE COMMON LAW OF
ENGLAND, IS TO LIMIT THEIR MEANING IN THE UNITED STATES."  SEE ALSO
NEAR V. MINNESOTA, 283 U.S. 697, 716-717; THORNHILL V. ALABAMA, SUPRA,
310 U.S. 102. 

FN11  THE NEW YORK STATUTE SPECIFICALLY MADE "THE PUBLICATION OF A
FALSE, OR GROSSLY INACCURATE REPORT" OF COURT PROCEEDINGS PUNISHABLE BY
CONTEMPT PROCEEDINGS, HOWEVER.  NEW YORK REV. STAT. 1829, PART III, C.
III, TIT. 2, ART. 1, SEC. 10(6).  THE PENNSYLVANIA STATUTE CONTAINED NO
SUCH PROVISO.  IT EXPLICITLY STATED THAT "ALL PUBLICATIONS OUT OF COURT
...  CONCERNING ANY CAUSE PENDING BEFORE ANY COURT OF THIS
COMMONWEALTH, SHALL NOT BE CONSTRUED INTO A CONTEMPT OF THE SAID COURT,
SO AS TO RENDER THE AUTHOR, PRINTER, PUBLISHER, OR EITHER OF THEM,
LIABLE TO ATTACHMENT AND SUMMARY PUNISHMENT FOR THE SAME."  PA. ACTS
1808-1809, C. 78, P. 146.   FN12  4 STAT. 487(1831). 

FN13  PATTERSON V. COLORADO, 205 U.S. 454, THE ONLY CASE BEFORE THIS
COURT DURING THAT PERIOD IN WHICH A STATE COURT'S POWER TO PUNISH OUT
OF-COURT PUBLICATIONS BY CONTEMPT WAS IN ISSUE, CANNOT BE TAKEN AS A
DECISION SQUARELY ON THIS POINT.  CF.:  "WE LEAVE UNDECIDED THE
QUESTION WHETHER THERE IS TO BE FOUND IN THE FOURTEENTH AMENDMENT A
PROHIBITION SIMILAR TO THAT IN THE FIRST."  ID. 462. 

FN14  COMPARE NELLES AND KING, LOC.  CIT.  SUPRA, 549:  "WHILE THE
SACCO-VANZETTI CASE WAS IN THE COURTS (SIX YEARS), IT WAS NOT, WE
BELIEVE, SUGGESTED AS DESIRABLE THAT PUBLIC EXPRESSIONS ON EITHER SIDE
BE DEALT WITH AS CONTEMPTS."  IN PUBLIC UTILITY RATE REGULATION, TO
TAKE ONE OF MANY EXAMPLES THAT MIGHT BE GIVEN OF A FIELD IN WHICH
PUBLIC INTEREST IS STRONG AND PUBLIC OPINION DIVIDED, CASES COMMONLY
REMAIN "PENDING" FOR SEVERAL YEARS.  SEE ST. JOSEPH STOCK YARDS CO. V.
UNITED STATES, 298 U.S. 38, 88-92; MCCART V. INDIANAPOLIS WATER CO.,
302 U.S. 419, 435. 

FN15  CF.:  "  ...  SAID TELEGRAM  ...  HAD AN INHERENT TENDENCY  ...
TO EMBARRASS AND INFLUENCE THE ACTIONS AND DECISIONS OF THE JUDGE
BEFORE WHOM SAID ACTION WAS PENDING."  BRIDGES V. SUPERIOR COURT,
SUPRA, 14 CAL.2D AT P. 471; "THE PUBLISHED STATEMENT WAS NOT ONLY A
CRITICISM OF THE DECISION OF THE COURT IN AN ACTION THEN PENDING BEFORE
SAID COURT, BUT WAS A THREAT THAT IF AN ATTEMPT WAS MADE TO ENFORCE THE
DECISION, THE PORTS OF THE ENTIRE PACIFIC COAST WOULD BE TIED UP."  ID.
488; "  ...  THE TEST  ...  IS WHETHER IT HAD A REASONABLE TENDENCY TO
INTERFERE WITH THE ORDERLY ADMINISTRATION OF JUSTICE  ...  "  TIMES
MIRROR CO. V. SUPERIOR COURT, SUPRA, 15 CAL.2D AT 103-104; "  ...  THE
EDITORIAL (HAD A)  ...  REASONABLE TENDENCY  ...  TO INTERFERE WITH THE
ORDINARY ADMINISTRATION OF JUSTICE."  ID. 110.  THE ITALICS ARE OURS. 

FN16  COMPARE THE FOLLOWING STATEMENTS FROM LETTERS OF THOMAS
JEFFERSON AS SET OUT IN PADOVER, DEMOCRACY, 150-151:  "I DEPLORE  ...
THE PUTRID STATE INTO WHICH OUR NEWSPAPERS HAVE PASSED, AND THE
MALIGNITY, THE VULGARITY, AND MENDACIOUS SPIRIT OF THOSE WHO WRITE
THEM.  ...  THESE ORDURES ARE RAPIDLY DEPRAVING THE PUBLIC TASTE. 

"IT IS HOWEVER AN EVIL FOR WHICH THERE IS NO REMEDY, OUR LIBERTY
DEPENDS ON THE FREEDOM OF THE PRESS, AND THAT CANNOT BE LIMITED WITHOUT
BEING LOST." 

FN17  THE WHOLE EDITORIAL, PUBLISHED IN THE LOS ANGELES TIMES OF MAY
5, 1938, WAS AS FOLLOWS: 

"TWO MEMBERS OF DAVE BECK'S WRECKING CREW, ENTERTAINMENT COMMITTEE,
GOON SQUAD OR GORILLAS, HAVING BEEN CONVICTED IN SUPERIOR COURT OF
ASSAULTING NONUNION TRUCK DRIVERS, HAVE ASKED FOR PROBATION. 
PRESUMABLY THEY WILL SAY THEY ARE 'FIRST OFFENDERS,' OR PLEAD THAT THEY
WERE MERELY INDULGING A PLAYFUL EXUBERANCE WHEN, WITH SLINGSHOTS, THEY
FIRED STEEL MISSILES AT MEN WHOSE ONLY OFFENSE WAS WISHING TO WORK FOR
A LIVING WITHOUT PAYING TRIBUTE TO THE ERSTWHILE BOSS OF SEATTLE. 

"SLUGGERS FOR PAY, LIKE MURDERERS FOR PROFIT, ARE IN A SLIGHTLY
DIFFERENT CATEGORY FROM ORDINARY CRIMINALS.  MEN WHO COMMIT MAYHEM FOR
WAGES ARE NOT MERELY VIOLATORS OF THE PEACE AND DIGNITY OF THE STATE;
THEY ARE ALSO CONSPIRATORS AGAINST IT.  THE MAN WHO BURGLES BECAUSE HIS
CHILDREN ARE HUNGRY MAY HAVE SOME CLAIM ON PUBLIC SYMPATHY.  HE WHOSE
CRIME IS ONE OF IMPULSE MAY BE ENTITLED TO LENITY.  BUT HE WHO HIRES
OUT HIS MUSCLES FOR THE CREATION OF DISORDER AND IN AID OF A RACKET IS
A DELIBERATE FOE OF ORGANIZED SOCIETY AND SHOULD BE PENALIZED
ACCORDINGLY. 

"IT WILL TEACH NO LESSON TO OTHER THUGS TO PUT THESE MEN ON GOOD
BEHAVIOR FOR A LIMITED TIME.  THEIR 'DUTY' WOULD SIMPLY BE TAKEN OVER
BY OTHERS LIKE THEM.  IF BECK'S THUGS, HOWEVER, ARE MADE TO REALIZE
THAT THEY FACE SAN QUENTIN WHEN THEY ARE CAUGHT, IT WILL TEND TO MAKE
THEIR DISREPUTABLE OCCUPATION UNPOPULAR.  JUDGE A. A. SCOTT WILL MAKE A
SERIOUS MISTAKE IF HE GRANTS PROBATION TO MATTHEW SHANNON AND KENNAN
HOLMES.  THIS COMMUNITY NEEDS THE EXAMPLE OF THEIR ASSIGNMENT TO THE
JUTE MILL." 

FN18  CF. TIMES-MIRROR CO. V. SUPERIOR COURT, SUPRA, 15 CAL.2D 109
110:  "THE EDITORIAL MAY NOT HAVE BEEN INTENDED, BUT IT IS CAPABLE OF
BEING CONSTRUED, AS A NOTICE TO THE TRIAL JUDGE THAT NO LENIENCY SHOULD
BE EXTENDED TO THE CONVICTED MEN, AND, FURTHERMORE, THAT SHOULD THE
COURT ACT CONTRARY TO THE SUGGESTIONS CONTAINED IN THE EDITORIAL, IT
MIGHT WELL EXPECT ADVERSE CRITICISM IN THE COLUMNS OF THE TIMES." 
ALTHOUGH THE FOREGOING STATEMENT WAS MADE WITH RESPECT TO ANOTHER OF
THE EDITORIALS, THE OPINION OF THE CALIFORNIA SUPREME COURT LATER SAID
IT WAS APPLICABLE TO "PROBATION FOR GORILLAS?"  ID. 114-115. 

FN19  THE FIRST OF THESE EDITORIALS, ENTITLED "SIT-STRIKERS
CONVICTED," WAS PUBLISHED IN THE LOS ANGELES TIMES OF DECEMBER 21,
1937, THE DAY AFTER THE JURY HAD RETURNED A VERDICT THAT THE "SIT
STRIKERS" IN QUESTION WERE GUILTY, AND THE DAY BEFORE THE TRIAL JUDGE
WAS TO HOLD COURT FOR THE PURPOSE OF PRONOUNCING SENTENCE, HEARING
MOTIONS FOR A NEW TRIAL, AND PASSING UPON APPLICATIONS FOR PROBATION. 
THE EDITORIAL FOLLOWS IN ITS ENTIRETY: 

"THE VERDICT OF A JURY FINDING GUILTY THE TWENTY-TWO SIT-STRIKERS WHO
LED THE ASSAULT ON THE DOUGLAS PLANT LAST FEBRUARY, WILL HAVE
REVERBERATIONS UP AND DOWN THE PACIFIC COAST AND IN POINTS FARTHER
EAST. 

"THE VERDICT MEANS THAT LOS ANGELES IS STILL LOS ANGELES, THAT THE
CITY IS AROUSED TO THE DANGER OF DAVEBECKISM, AND THAT NO KIND OF UNION
TERRORISM WILL BE PERMITTED HERE. 

"THE VERDICT MAY HAVE A GOOD DEAL TO DO WITH SENDING DAVE BECK BACK
TO SEATTLE.  FOR, WHILE THE UNITED AUTOMOBILE WORKERS HAVE NO
CONNECTION WITH BECK, THEIR TACTICS AND HIS ARE IDENTICAL IN MOTIVE;
AND IF BECK CAN BE CONVINCED THAT THIS KIND OF WARFARE IS NOT PERMITTED
IN THIS AREA HE WILL NECESSARILY ABANDON HIS DREAMS OF CONQUEST. 

"ALREADY THE UNITED FARMERS AND RANCHERS HAVE GIVEN BECK A SEVERE
SETBACK.  THE HYNES HAY MARKET IS STILL FREE AND IT HAS BEEN MADE PLAIN
THAT INTERFERENCE WITH MILK DELIVERIES TO LOS ANGELES WILL NOT BE
TOLERATED. 

"DIST. ATTY. FITTS PLEDGED HIS BEST EFFORTS TO PREVENT AND PUNISH
UNION TERRORISM AND RACKETEERING IN A STRONG RADIO ADDRESS, AND
FOLLOWED IT UP YESTERDAY WITH A STATEMENT CONGRATULATING THE JURY THAT
CONVICTED THE SIT-DOWNERS AND THE COMMUNITY ON ONE OF THE 'MOST
FARREACHING VERDICTS IN THE HISTORY OF THIS COUNTRY.' 

"IN THIS HE IS CORRECT.  IT IS AN IMPORTANT VERDICT.  FOR THE FIRST
TIME SINCE THE PRESENT CYCLE OF LABOR DISTURBANCES BEGAN, UNION
LAWLESSNESS HAS BEEN TREATED AS EXACTLY WHAT IT IS, AN OFFENSE AGAINST
THE PUBLIC PEACE PUNISHABLE LIKE ANY OTHER CRIME. 

"THE SEIZURE OF PROPERTY BY A MILITANT MINORITY, WHICH ARROGATED TO
ITSELF THE RIGHT OF DICTATING NOT ONLY TO EMPLOYERS, BUT TO OTHER
WORKERS NOT IN SYMPATHY WITH IT, WHAT SHOULD BE THE TERMS AND
CONDITIONS OF WORKING, HAS PROVED TO BE WITHIN THE CONTROL OF LOCAL
PEACE OFFICERS AND AUTHORITIES. 

"NOBODY RAN OFF TO WASHINGTON TO GET THIS AFFAIR HANDLED.  IT WAS
ATTENDED TO RIGHT HERE. 

"GOVERNMENT MAY HAVE BROKEN DOWN IN OTHER LOCALITIES; WHOLE STATES
MAY HAVE YIELDED TO ANARCHY.  BUT LOS ANGELES COUNTY STANDS FIRM; IT
HAS OFFICERS WHO CAN DO THEIR DUTY AND COURTS AND JURIES WHICH CAN
FUNCTION. 

"SO LONG AS THAT IS THE CASE, DAVEBECKISM CANNOT AND WILL NOT GET
CONTROL HERE; NOR JOHNLEWISISM EITHER." 

THE SECOND OF THESE EDITORIALS, ENTITLED "THE FALL OF AN EX-QUEEN,"
WAS PUBLISHED IN THE LOS ANGELES TIMES OF APRIL 14, 1938.  HERE, TOO,
PUBLICATION TOOK PLACE AFTER A JURY HAD FOUND THE SUBJECT OF THE
EDITORIAL GUILTY, BUT BEFORE THE TRIAL JUDGE HAD PRONOUNCED SENTENCE. 
THE EDITORIAL FOLLOWS IN ITS ENTIRETY: 

"POLITICS AS WE KNOW IT IS AN ESSENTIALLY SELFISH BUSINESS, CONDUCTED
IN THE MAIN FOR PERSONAL PROFIT OF ONE KIND OR ANOTHER.  WHEN IT IS OF
THE BOSS TYPE, IT IS APT TO BE PRETTY SORDID AS WELL.  SUCCESS IN BOSS
SHIP, WHICH IS A DENIAL OF PUBLIC RIGHTS, NECESSARILY IMPLIES A KIND OF
MORAL OBLIQUITY IF NOT AN ACTUALLY ILLEGAL ONE. 

"SO THAT IT IS SOMETHING OF A CONTRADICTION OF SENSE IF NOT OF TERMS
TO EXPRESS REGRET THAT THE POLITICAL TALENTS OF MRS. HELEN WERNER WERE
NOT DIRECTED TO OTHER OBJECTIVES THAN THOSE WHICH, IN THE TWILIGHT OF
HER ACTIVE LIFE, HAVE BROUGHT HER AND HER HUSBAND TO DISGRACE.  IF THEY
HAD BEEN, SHE WOULD NOT HAVE BEEN IN POLITICS AT ALL AND PROBABLY WOULD
NEVER HAVE BEEN HEARD OF IN A PUBLIC WAY.  HER NATURAL FLAIR WAS PURELY
POLITICAL; SHE WOULD HAVE BEEN MISCAST IN ANY OTHER SPHERE OF
ACTIVITY. 

"MRS. WERNER'S PRIMARY MISTAKE SEEMS TO HAVE BEEN IN FAILING TO
RECOGNIZE THAT HER POLITICAL DAY WAS PAST.  FOR YEARS SHE ENJOYED THE
UNIQUE DISTINCTION OF BEING THE COUNTRY'S ONLY WOMAN BOSS - AND DID SHE
ENJOY IT.  IN HER HEYDAY SHE HAD A FINGER IN EVERY POLITICAL PIE AND
MANY WERE THE PLUMS SHE WAS ABLE TO EXTRACT THEREFROM FOR THOSE WHO
PLAYED BALL WITH HER.  FROM SMALL BEGINNINGS SHE UTILIZED EVERY
OPPORTUNITY TO EXTEND HER INFLUENCE AND TO PUT OFFICEHOLDERS AND
PROMISING POLITICAL MATERIAL UNDER OBLIGATIONS TO HER.  SHE BECAME A
POWER IN THE BACKSTAGE COUNCILS OF CITY AND COUNTY AFFAIRS AND FROM
THAT PLACE OF STRATEGIC ADVANTAGE REACHED OUT TO PULL THE STRINGS ON
STATE AND LEGISLATIVE OFFICES AS WELL. 

"THOSE WERE THE DAYS WHEN MRS. WERNER WAS 'QUEEN HELEN' AND IT IS
ONLY FAIR TO SAY THAT TO HER THE POWER WAS MUCH MORE IMPORTANT THAN THE
PERQUISITES.  WHEN THE INEVITABLE TURNING OF THE POLITICAL WHEEL
BROUGHT NEW FIGURES TO THE FRONT AND NEW BOSSES TO THE BACK, SHE FOUND
HER GRIP SLIPPING AND IT WAS HARD TO TAKE.  THE SEVERAL CASES WHICH IN
RECENT YEARS HAVE BROUGHT HER BEFORE THE COURTS TO DEFEND HER
ACTIVITIES SEEM ALL EXAMPLES OF AN ENERGETIC EFFORT TO REGAIN AND
REASSERT HER ONETIME INFLUENCE IN HIGH PLACES.  THAT IT SHOULD
ULTIMATELY HAVE LANDED HER BEHIND THE BARS AS A CONVICTED BRIBE-SEEKER
IS NOT ILLOGICAL.  BUT IF THERE IS LOGIC IN IT, THE MONEY MEANT LESS TO
MRS. WERNER THAN THE NAME OF STILL BEING A POLITICAL POWER, ONE WHO
COULD DO THINGS WITH PUBLIC OFFICIALS THAT OTHERS COULD NOT DO.  TO
HERSELF AT LEAST SHE WAS STILL QUEEN HELEN." 

FN20  THE PORTIONS OF THE TELEGRAM PUBLISHED IN NEWSPAPERS OF GENERAL
CIRCULATION IN SAN FRANCISCO AND LOS ANGELES ON JANUARY 24 AND 25,
1938, WERE AS FOLLOWS: 

"THIS DECISION IS OUTRAGEOUS CONSIDERING I.L.A. HAS 15 MEMBERS (IN
SAN PEDRO) AND THE INTERNATIONAL LONGSHOREMEN-WAREHOUSEMEN'S UNION HAS
3000.  INTERNATIONAL LONGSHOREMEN-WAREHOUSEMEN UNION HAS PETITIONED THE
LABOR BOARD FOR CERTIFICATION TO REPRESENT SAN PEDRO LONGSHOREMEN WITH
INTERNATIONAL LONGSHOREMEN ASSOCIATION DENIED REPRESENTATION BECAUSE IT
REPRESENTS ONLY 15 MEN.  BOARD HEARING HELD; DECISION NOW PENDING. 
ATTEMPTED ENFORCEMENT OF SCHMIDT DECISION WILL TIE UP PORT OF LOS
ANGELES AND INVOLVE ENTIRE PACIFIC COAST.  INTERNATIONAL LONGSHOREMEN
WAREHOUSEMEN UNION, REPRESENTING OVER 11,000 OF THE 12,000 LONGSHOREMEN
ON THE PACIFIC COAST, DOES NOT INTEND TO ALLOW STATE COURTS TO OVERRIDE
THE MAJORITY VOTE OF MEMBERS IN CHOOSING ITS OFFICERS AND
REPRESENTATIVES AND TO OVERRIDE THE NATIONAL LABOR RELATIONS BOARD." 

FN21  SEE BRIDGES V. SUPERIOR COURT, SUPRA, 14 CAL.2D AT 493.  CF.
WHITE V. NICHOLLS, 3 HOW.  266. 

MR. JUSTICE FRANKFURTER, WITH WHOM CONCURRED THE CHIEF JUSTICE, MR.
JUSTICE ROBERTS AND MR. JUSTICE BYRNES, DISSENTING. 

OUR WHOLE HISTORY REPELS THE VIEW THAT IT IS AN EXERCISE OF ONE OF
THE CIVIL LIBERTIES SECURED BY THE BILL OF RIGHTS FOR A LEADER OF A
LARGE FOLLOWING OR FOR A POWERFUL METROPOLITAN NEWSPAPER TO ATTEMPT TO
OVERAWE A JUDGE IN A MATTER IMMEDIATELY PENDING BEFORE HIM.  THE VIEW
OF THE MAJORITY DEPRIVES CALIFORNIA OF MEANS FOR SECURING TO ITS
CITIZENS JUSTICE ACCORDING TO LAW - MEANS WHICH, SINCE THE UNION WAS
FOUNDED, HAVE BEEN THE POSSESSION, HITHERTO UNCHALLENGED, OF ALL THE
STATES.  THIS SUDDEN BREAK WITH THE UNINTERRUPTED COURSE OF
CONSTITUTIONAL HISTORY HAS NO CONSTITUTIONAL WARRANT.  TO FIND
JUSTIFICATION FOR SUCH DEPRIVATION OF THE HISTORIC POWERS OF THE STATES
IS TO MISCONCEIVE THE IDEA OF FREEDOM OF THOUGHT AND SPEECH AS
GUARANTEED BY THE CONSTITUTION. 

DEEMING IT MORE IMPORTANT THAN EVER BEFORE TO ENFORCE CIVIL LIBERTIES
WITH A GENEROUS OUTLOOK, BUT DEEMING IT NO LESS ESSENTIAL FOR THE
ASSURANCE OF CIVIL LIBERTIES THAT THE FEDERAL SYSTEM FOUNDED UPON THE
CONSTITUTION BE MAINTAINED, WE BELIEVE THAT THE CAREFUL AMBIGUITIES AND
SILENCES OF THE MAJORITY OPINION CALL FOR A FULL EXPOSITION OF THE
ISSUES IN THESE CASES. 

WHILE THE IMMEDIATE QUESTION IS THAT OF DETERMINING THE POWER OF THE
COURTS OF CALIFORNIA TO DEAL WITH ATTEMPTS TO COERCE THEIR JUDGMENTS IN
LITIGATION IMMEDIATELY BEFORE THEM, THE CONSEQUENCE OF THE COURT'S
RULING TODAY IS A DENIAL TO THE PEOPLE OF THE FORTY-EIGHT STATES OF A
RIGHT WHICH THEY HAVE ALWAYS REGARDED AS ESSENTIAL FOR THE EFFECTIVE
EXERCISE OF THE JUDICIAL PROCESS, AS WELL AS A DENIAL TO THE CONGRESS
OF POWERS WHICH WERE EXERCISED FROM THE VERY BEGINNING EVEN BY THE
FRAMERS OF THE CONSTITUTION THEMSELVES.  TO BE SURE, THE MAJORITY DO
NOT IN SO MANY WORDS HOLD THAT TRIAL BY NEWSPAPERS HAS CONSTITUTIONAL
SANCTITY.  BUT THE ATMOSPHERE OF THEIR OPINION AND SEVERAL OF ITS
PHRASES MEAN THAT OR THEY MEAN NOTHING.  CERTAINLY, THE OPINION IS
DEVOID OF ANY FRANK RECOGNITION OF THE RIGHT OF COURTS TO DEAL WITH
UTTERANCES CALCULATED TO INTIMIDATE THE FAIR COURSE OF JUSTICE - A
RIGHT WHICH HITHERTO ALL THE STATES HAVE FROM TIME TO TIME SEEN FIT TO
CONFER UPON THEIR COURTS AND WHICH CONGRESS CONFERRED UPON THE FEDERAL
COURTS IN THE JUDICIARY ACT OF 1789.  IF ALL THAT IS DECIDED TODAY IS
THAT THE MAJORITY DEEM THE SPECIFIC INTERFERENCES WITH THE
ADMINISTRATION OF JUSTICE IN CALIFORNIA SO TENUOUSLY RELATED TO THE
RIGHT OF CALIFORNIA TO KEEP ITS COURTS FREE FROM COERCION AS TO
CONSTITUTE A CHECK UPON FREE SPEECH RATHER THAN UPON IMPARTIAL JUSTICE,
IT WOULD BE WELL TO SAY SO.  MATTERS THAT INVOLVE SO DEEPLY THE POWERS
OF THE STATES, AND THAT PUT TO THE TEST THE PROFESSIONS BY THIS COURT
OF SELF-RESTRAINT IN NULLIFYING THE POLITICAL POWERS OF STATE AND
NATION, SHOULD NOT BE LEFT CLOUDED.    WE ARE NOT EVEN VOUCHSAFED
REFERENCE TO THE SPECIFIC PROVISION OF THE CONSTITUTION WHICH RENDERS
STATES POWERLESS TO INSIST UPON TRIAL BY COURTS RATHER THAN TRIAL BY
NEWSPAPERS.  SO FAR AS THE CONGRESS OF THE UNITED STATES IS CONCERNED,
WE ARE REFERRED TO THE FIRST AMENDMENT.  THAT IS SPECIFIC.  BUT WE ARE
HERE DEALING WITH LIMITATIONS UPON CALIFORNIA - WITH RESTRAINTS UPON
THE STATES.  TO SAY THAT THE PROTECTION OF FREEDOM OF SPEECH OF THE
FIRST AMENDMENT IS ABSORBED BY THE FOURTEENTH DOES NOT SAY ENOUGH. 
WHICH ONE OF THE VARIOUS LIMITATIONS UPON STATE POWER INTRODUCED BY THE
FOURTEENTH AMENDMENT ABSORBS THE FIRST?  SOME PROVISIONS OF THE
FOURTEENTH AMENDMENT APPLY ONLY TO CITIZENS AND ONE OF THE PETITIONERS
HERE IS AN ALIEN; SOME OF ITS PROVISIONS APPLY ONLY TO NATURAL PERSONS,
AND ANOTHER PETITIONER HERE IS A CORPORATION.  SEE HAGUE V. C.I.O., 307
U.S. 496, 514, AND CASES CITED.  ONLY THE DUE PROCESS CLAUSE ASSURES
CONSTITUTIONAL PROTECTION OF CIVIL LIBERTIES TO ALIENS AND
CORPORATIONS.  CORPORATIONS CANNOT CLAIM FOR THEMSELVES THE "LIBERTY"
WHICH THE DUE PROCESS CLAUSE GUARANTEES.  THAT CLAUSE PROTECTS ONLY
THEIR PROPERTY.  PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, 535.  THE
MAJORITY OPINION IS STRANGELY SILENT IN FAILING TO AVOW THE SPECIFIC
CONSTITUTIONAL PROVISION UPON WHICH ITS DECISION RESTS. 

THESE ARE NOT ACADEMIC DEBATING POINTS OR TECHNICAL NICETIES.  THOSE
WHO HAVE GONE BEFORE US HAVE ADMONISHED US "THAT IN A FREE
REPRESENTATIVE GOVERNMENT NOTHING IS MORE FUNDAMENTAL THAN THE RIGHT OF
THE PEOPLE THROUGH THEIR APPOINTED SERVANTS TO GOVERN THEMSELVES IN
ACCORDANCE WITH THEIR OWN WILL, EXCEPT SO FAR AS THEY HAVE RESTRAINED
THEMSELVES BY CONSTITUTIONAL LIMITS SPECIFICALLY ESTABLISHED, AND THAT
IN OUR PECULIAR DUAL FORM OF GOVERNMENT NOTHING IS MORE FUNDAMENTAL
THAN THE FULL POWER OF THE STATE TO ORDER ITS OWN AFFAIRS AND GOVERN
ITS OWN PEOPLE, EXCEPT SO FAR AS THE FEDERAL CONSTITUTION EXPRESSLY OR
BY FAIR IMPLICATION HAS WITHDRAWN THAT POWER.  THE POWER OF THE PEOPLE
OF THE STATES TO MAKE AND ALTER THEIR LAWS AT PLEASURE IS THE GREATEST
SECURITY FOR LIBERTY AND JUSTICE  ...  WE ARE NOT INVESTED WITH THE
JURISDICTION TO PASS UPON THE EXPEDIENCY, WISDOM OR JUSTICE OF THE LAWS
OF THE STATES AS DECLARED BY THEIR COURTS, BUT ONLY TO DETERMINE THEIR
CONFORMITY WITH THE FEDERAL CONSTITUTION AND THE PARAMOUNT LAWS ENACTED
PURSUANT TO IT.  UNDER THE GUISE OF INTERPRETING THE CONSTITUTION WE
MUST TAKE CARE THAT WE DO NOT IMPORT INTO THE DISCUSSION OUR OWN
PERSONAL VIEWS OF WHAT WOULD BE WISE, JUST AND FITTING RULES OF
GOVERNMENT TO BE ADOPTED BY A FREE PEOPLE AND CONFOUND THEM WITH
CONSTITUTIONAL LIMITATIONS."  TWINING V. NEW JERSEY, 211 U.S. 78, 106
07. 

IN A SERIES OF OPINIONS AS UNCOMPROMISING AS ANY IN ITS HISTORY, THIS
COURT HAS SETTLED THAT THE FULLEST OPPORTUNITIES FOR FREE DISCUSSION
ARE "IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY, AND THUS, THROUGH THE
FOURTEENTH AMENDMENT," PROTECTED AGAINST ATTEMPTED INVASION BY THE
STATES.  PALKO V. CONNECTICUT, 302 U.S. 319, 324-25.  THE CHANNELS OF
INQUIRY AND THOUGHT MUST BE KEPT OPEN TO NEW CONQUESTS OF REASON,
HOWEVER ODIOUS THEIR EXPRESSION MAY BE TO THE PREVAILING CLIMATE OF
OPINION.  BUT LIBERTY, "IN EACH OF ITS PHASES, HAS ITS HISTORY AND
CONNOTATION."  WHETHER A PARTICULAR STATE ACTION VIOLATES "THE
ESSENTIAL ATTRIBUTES OF THAT LIBERTY" MUST BE JUDGED IN THE LIGHT OF
THE LIBERTY THAT IS INVOKED AND THE CURTAILMENT THAT IS CHALLENGED. 
NEAR V. MINNESOTA, 283 U.S. 697, 708.  FOR "THE RECOGNITION OF A
PRIVILEGE DOES NOT MEAN THAT IT IS WITHOUT CONDITIONS OR EXCEPTIONS. 
THE SOCIAL POLICY THAT WILL PREVAIL IN MANY SITUATIONS MAY RUN FOUL IN
OTHERS OF A DIFFERENT SOCIAL POLICY, COMPETING FOR SUPREMACY.  IT IS
THEN THE FUNCTION OF A COURT TO MEDIATE BETWEEN THEM, ASSIGNING, SO FAR
AS POSSIBLE, A PROPER VALUE TO EACH, AND SUMMONING TO ITS AID ALL THE
DISTINCTIONS AND ANALOGIES THAT ARE THE TOOLS OF THE JUDICIAL
PROCESS."  CLARK V. UNITED STATES, 289 U.S. 1, 13. 

FREE SPEECH IS NOT SO ABSOLUTE OR IRRATIONAL A CONCEPTION AS TO IMPLY
PARALYSIS OF THE MEANS FOR EFFECTIVE PROTECTION OF ALL THE FREEDOMS
SECURED BY THE BILL OF RIGHTS.  COMPARE LINCOLN'S MESSAGE TO CONGRESS
IN SPECIAL SESSION, JULY 4, 1861, 7 RICHARDSON, MESSAGES AND PAPERS OF
THE PRESIDENTS, PP. 3221-3232.  IN THE CASES BEFORE US, THE CLAIMS ON
BEHALF OF FREEDOM OF SPEECH AND OF THE PRESS ENCOUNTER CLAIMS ON BEHALF
OF LIBERTIES NO LESS PRECIOUS.  CALIFORNIA ASSERTS HER RIGHT TO DO WHAT
SHE HAS DONE AS A MEANS OF SAFEGUARDING HER SYSTEM OF JUSTICE. 

THE ADMINISTRATION OF JUSTICE BY AN IMPARTIAL JUDICIARY HAS BEEN
BASIC TO OUR CONCEPTION OF FREEDOM EVER SINCE MAGNA CARTA.  IT IS THE
CONCERN NOT MERELY OF THE IMMEDIATE LITIGANTS.  ITS ASSURANCE IS
EVERYONE'S CONCERN, AND IT IS PROTECTED BY THE LIBERTY GUARANTEED BY
THE FOURTEENTH AMENDMENT.  THAT IS WHY THIS COURT HAS OUTLAWED MOB
DOMINATION OF A COURTROOM, MOORE V. DEMPSEY, 261 U.S. 86, MENTAL
COERCION OF A DEFENDANT, CHAMBERS V. FLORIDA, 309 U.S. 227, A JUDICIAL
SYSTEM WHICH DOES NOT PROVIDE DISINTERESTED JUDGES, TUMEY V. OHIO, 273
U.S. 510, AND DISCRIMINATORY SELECTION OF JURORS, PIERRE V. LOUISIANA,
306 U.S. 354; SMITH V. TEXAS, 311 U.S. 128. 

A TRIAL IS NOT A "FREE TRADE IN IDEAS," NOR IS THE BEST TEST OF TRUTH
IN A COURTROOM "THE POWER OF THE THOUGHT TO GET ITSELF ACCEPTED IN THE
COMPETITION OF THE MARKET."  COMPARE MR. JUSTICE HOLMES IN ABRAMS V.
UNITED STATES, 250 U.S. 616, 630.  A COURT IS A FORUM WITH STRICTLY
DEFINED LIMITS FOR DISCUSSION.  IT IS CIRCUMSCRIBED IN THE RANGE OF ITS
INQUIRY AND IN ITS METHODS BY THE CONSTITUTION, BY LAWS, AND BY AGE-OLD
TRADITIONS.  ITS JUDGES ARE RESTRAINED IN THEIR FREEDOM OF EXPRESSION
BY HISTORIC COMPULSIONS RESTING ON NO OTHER OFFICIALS OF GOVERNMENT. 
THEY ARE SO CIRCUMSCRIBED PRECISELY BECAUSE JUDGES HAVE IN THEIR
KEEPING THE ENFORCEMENT OF RIGHTS AND THE PROTECTION OF LIBERTIES
WHICH, ACCORDING TO THE WISDOM OF THE AGES, CAN ONLY BE ENFORCED AND
PROTECTED BY OBSERVING SUCH METHODS AND TRADITIONS. 

THE DEPENDENCE OF SOCIETY UPON AN UNSWERVED JUDICIARY IS SUCH A
COMMONPLACE IN THE HISTORY OF FREEDOM THAT THE MEANS BY WHICH IT IS
MAINTAINED ARE TOO FREQUENTLY TAKEN FOR GRANTED WITHOUT HEED TO THE
CONDITIONS WHICH ALONE MAKE IT POSSIBLE.  THE ROLE OF COURTS OF JUSTICE
IN OUR SOCIETY HAS BEEN THE THEME OF STATESMEN AND HISTORIANS AND
CONSTITUTION MAKERS.  IT IS PERHAPS BEST EXPRESSED IN THE MASSACHUSETTS
DECLARATION OF RIGHTS: 

"IT IS ESSENTIAL TO THE PRESERVATION OF THE RIGHTS OF EVERY
INDIVIDUAL, HIS LIFE, LIBERTY, PROPERTY, AND CHARACTER, THAT THERE BE
AN IMPARTIAL INTERPRETATION OF THE LAWS, AND ADMINISTRATION OF
JUSTICE.  IT IS THE RIGHT OF EVERY CITIZEN TO BE TRIED BY JUDGES AS
FREE, IMPARTIAL AND INDEPENDENT AS THE LOT OF HUMANITY WILL ADMIT." 

THE CONSTITUTION WAS NOT CONCEIVED AS A DOCTRINAIRE DOCUMENT, NOR WAS
THE BILL OF RIGHTS INTENDED AS A COLLECTION OF POPULAR SLOGANS.  WE ARE
DEALING WITH INSTRUMENTS OF GOVERNMENT.  WE CANNOT READ INTO THE
FOURTEENTH AMENDMENT THE FREEDOM OF SPEECH AND OF THE PRESS PROTECTED
BY THE FIRST AMENDMENT AND AT THE SAME TIME READ OUT AGE-OLD MEANS
EMPLOYED BY STATES FOR SECURING THE CALM COURSE OF JUSTICE.  THE
FOURTEENTH AMENDMENT DOES NOT FORBID A STATE TO CONTINUE THE HISTORIC
PROCESS OF PROHIBITING EXPRESSIONS CALCULATED TO SUBVERT A SPECIFIC
EXERCISE OF JUDICIAL POWER.  SO TO ASSURE THE IMPARTIAL ACCOMPLISHMENT
OF JUSTICE IS NOT AN ABRIDGMENT OF FREEDOM OF SPEECH OR FREEDOM OF THE
PRESS, AS THESE PHASES OF LIBERTY HAVE HERETOFORE BEEN CONCEIVED EVEN
BY THE STOUTEST LIBERTARIANS.  IN FACT, THESE LIBERTIES THEMSELVES
DEPEND UPON AN UNTRAMMELED JUDICIARY WHOSE PASSIONS ARE NOT EVEN
UNCONSCIOUSLY AROUSED AND WHOSE MINDS ARE NOT DISTORTED BY EXTRA
JUDICIAL CONSIDERATIONS. 

OF COURSE FREEDOM OF SPEECH AND OF THE PRESS ARE ESSENTIAL TO THE
ENLIGHTENMENT OF A FREE PEOPLE AND IN RESTRAINING THOSE WHO WIELD
POWER.  PARTICULARLY SHOULD THIS FREEDOM BE EMPLOYED IN COMMENT UPON
THE WORK OF COURTS, WHO ARE WITHOUT MANY INFLUENCES ORDINARILY MAKING
FOR HUMOR AND HUMILITY, TWIN ANTIDOTES TO THE CORROSION OF POWER.  BUT
THE BILL OF RIGHTS IS NOT SELF-DESTRUCTIVE.  FREEDOM OF EXPRESSION CAN
HARDLY CARRY IMPLICATIONS THAT NULLIFY THE GUARANTEES OF IMPARTIAL
TRIALS.  AND SINCE COURTS ARE THE ULTIMATE RESORTS FOR VINDICATING THE
BILL OF RIGHTS, A STATE MAY SURELY AUTHORIZE APPROPRIATE HISTORIC MEANS
TO ASSURE THAT THE PROCESS FOR SUCH VINDICATION BE NOT WRENCHED FROM
ITS RATIONAL TRACKS INTO THE MORE PRIMITIVE MELEE OF PASSION AND
PRESSURE.  THE NEED IS GREAT THAT COURTS BE CRITICIZED, BUT JUST AS
GREAT THAT THEY BE ALLOWED TO DO THEIR DUTY. 

THE "LIBERTY" SECURED BY THE FOURTEENTH AMENDMENT SUMMARIZES THE
EXPERIENCE OF HISTORY.  AND THE POWER EXERTED BY THE COURTS OF
CALIFORNIA IS DEEPLY ROOTED IN THE SYSTEM OF ADMINISTERING JUSTICE
EVOLVED BY LIBERTY-LOVING ENGLISH-SPEAKING PEOPLES.  FROM THE EARLIEST
DAYS OF THE ENGLISH COURTS, THEY HAVE ENCOUNTERED OBSTRUCTIONS TO DOING
THAT FOR WHICH THEY EXIST, NAMELY, TO ADMINISTER JUSTICE IMPARTIALLY
AND SOLELY WITH REFERENCE TO WHAT COMES BEFORE THEM.  THESE
INTERFERENCES WERE OF DIVERSE KINDS.  BUT THEY WERE ALL COVERED BY THE
INFELICITOUS PHRASE "CONTEMPT OF COURT," AND THE MEANS FOR DEALING WITH
THEM IS HISTORICALLY KNOWN AS THE POWER OF COURTS TO PUNISH FOR
CONTEMPT.  AS IS TRUE OF MANY ASPECTS OF OUR LEGAL INSTITUTIONS, THE
SETTLED DOCTRINES CONCERNING THE MODE OF PROCEDURE FOR EXERCISING THE
POWER OF CONTEMPT BECAME ESTABLISHED ON DUBIOUS HISTORICAL AUTHORITY. 
EXACT LEGAL SCHOLARSHIP HAS CONTROVERTED MUCH PERTAINING TO THE ORIGIN
OF SUMMARY PROCEEDINGS FOR CONTEMPT.  SEE SIR JOHN FOX, THE HISTORY OF
CONTEMPT OF COURT, PASSIM.  BUT THERE IS NO DOUBT THAT, SINCE THE EARLY
EIGHTEENTH CENTURY, THE POWER TO PUNISH FOR CONTEMPT FOR INTRUSIONS
INTO THE LIVING PROCESS OF ADJUDICATION HAS BEEN AN UNQUESTIONED
CHARACTERISTIC OF ENGLISH COURTS AND OF THE COURTS OF THIS COUNTRY. 

THE JUDICATURES OF THE ENGLISH-SPEAKING WORLD, INCLUDING THE COURTS
OF THE UNITED STATES AND OF THE FORTY-EIGHT STATES, HAVE FROM TIME TO
TIME RECOGNIZED AND EXERCISED THE POWER NOW CHALLENGED.  (FOR PARTIAL
LISTS OF CASES, SEE NELLES AND KING, CONTEMPT BY PUBLICATION IN THE
UNITED STATES, 28 COL. L. REV. 401, 525, 554; SULLIVAN, CONTEMPTS BY
PUBLICATION, PP. 185 ET SEQ.) A DECLARATORY FORMULATION OF THE COMMON
LAW WAS WRITTEN INTO THE JUDICIARY ACT OF 1789(SEC.  17, 1 STAT. 73,
83) BY OLIVER ELLSWORTH, ONE OF THE FRAMERS OF THE CONSTITUTION, LATER
TO BECOME CHIEF JUSTICE; THE POWER WAS EARLY RECOGNIZED AS INCIDENTAL
TO THE VERY EXISTENCE OF COURTS IN A SUCCESSION OF OPINIONS IN THIS
COURT (UNITED STATES V. HUDSON, 7 CRANCH 32; ANDERSON V. DUNN, 6
WHEAT.  204, 227; EX PARTE KEARNEY, 7 WHEAT.  38); IT WAS EXPOUNDED AND
SUPPORTED BY THE GREAT COMMENTARIES THAT SO LARGELY INFLUENCED THE
SHAPING OF OUR LAW IN THE LATE EIGHTEENTH AND EARLY NINETEENTH
CENTURIES, THOSE OF BLACKSTONE, KENT AND STORY; ITS HISTORIC CONTINUITY
WITHSTOOD ATTACK AGAINST STATE ACTION UNDER THE DUE PROCESS CLAUSE, NOW
AGAIN INVOKED, EILENBECKER V. PLYMOUTH COUNTY, 134 U.S. 31; AND SEE EX
PARTE ROBINSON, 19 WALL.  505; EX PARTE TERRY, 128 U.S. 289; SAVIN,
PETITIONER, 131 U.S. 267.  FN1 

AS IN THE EXERCISE OF ALL POWER, IT WAS ABUSED.  SOME ENGLISH JUDGES
EXTENDED THEIR AUTHORITY FOR CHECKING INTERFERENCES WITH JUDICIAL
BUSINESS ACTUALLY IN HAND, TO "LAY BY THE HEEL" THOSE RESPONSIBLE FOR
"SCANDALIZING THE COURT," THAT IS, BRINGING IT INTO GENERAL DISREPUTE. 
SUCH FOOLISHNESS HAS LONG SINCE BEEN DISAVOWED IN ENGLAND AND HAS NEVER
FOUND LODGMENT HERE.  BUT EVEN THE TECHNICAL POWER OF PUNISHING
INTERFERENCE WITH THE COURT'S BUSINESS IS SUSCEPTIBLE OF ABUSE.  AS
EARLY AS 1809, PENNSYLVANIA RESTRICTED THE POWER TO INFLICT SUMMARY
PUNISHMENT FOR CONTEMPTS TO A CLOSELY DEFINED CLASS OF MISCONDUCT, AND
PROVIDED THE ORDINARY CRIMINAL PROCEDURE FOR OTHER FORMS OF
INTERFERENCES WITH A PENDING CAUSE.  1808-09 PA. ACTS, C. 78, P. 146. 
FN2  THE FLAGRANT CASE OF JUDGE PECK  FN3  LED CONGRESS TO PASS THE ACT
OF MARCH 2, 1831, 4 STAT. 487, 28 U.S.C. SEC. 385, THE SCOPE OF WHICH
WE RECENTLY CONSIDERED.  NYE V. UNITED STATES, 313 U.S. 33.  A NUMBER
OF STATES COPIED THE FEDERAL STATUTE.  IT WOULD BE PEDANTIC TO TRACE
THE COURSE OF LEGISLATION AND OF ADJUDICATION ON THIS SUBJECT IN OUR
HALF-HUNDRED JURISDICTIONS.  SUFFICE IT TO SAY THAT THE HITHERTO
UNCHALLENGED POWER OF AMERICAN STATES TO CLOTHE THEIR COURTS WITH
AUTHORITY TO PUNISH FOR CONTEMPT WAS THUS SUMMARIZED ONLY RECENTLY BY
MR. CHIEF JUSTICE HUGHES IN THE LEADING CASE VINDICATING THE LIBERTY OF
THE PRESS AGAINST STATE ACTION:  "THERE IS ALSO THE CONCEDED AUTHORITY
OF COURTS TO PUNISH FOR CONTEMPT WHEN PUBLICATIONS DIRECTLY TEND TO
PREVENT THE PROPER DISCHARGE OF JUDICIAL FUNCTIONS."  NEAR V.
MINNESOTA, 283 U.S. 697, 715.  FN4 

IT IS TRIFLING WITH GREAT ISSUES TO SUGGEST THAT THE QUESTION BEFORE
US IS WHETHER EIGHTEENTH-CENTURY RESTRAINTS UPON THE FREEDOM OF THE
PRESS SHOULD NOW BE REVIVED.  THE QUESTION IS RATHER WHETHER NINETEENTH
AND TWENTIETH-CENTURY AMERICAN INSTITUTIONS SHOULD BE ABROGATED BY
JUDICIAL FIAT. 

THAT A STATE MAY, UNDER APPROPRIATE CIRCUMSTANCES, PREVENT
INTERFERENCE WITH SPECIFIC EXERCISES OF THE PROCESS OF IMPARTIAL
ADJUDICATION DOES NOT MEAN THAT ITS PEOPLE LOSE THE RIGHT TO CONDEMN
DECISIONS OR THE JUDGES WHO RENDER THEM.  JUDGES AS PERSONS, OR COURTS
AS INSTITUTIONS, ARE ENTITLED TO NO GREATER IMMUNITY FROM CRITICISM
THAN OTHER PERSONS OR INSTITUTIONS.  JUST BECAUSE THE HOLDERS OF
JUDICIAL OFFICE ARE IDENTIFIED WITH THE INTERESTS OF JUSTICE THEY MAY
FORGET THEIR COMMON HUMAN FRAILTIES AND FALLIBILITIES.  THERE HAVE
SOMETIMES BEEN MARTINETS UPON THE BENCH AS THERE HAVE ALSO BEEN POMPOUS
WIELDERS OF AUTHORITY WHO HAVE USED THE PARAPHERNALIA OF POWER IN
SUPPORT OF WHAT THEY CALLED THEIR DIGNITY.  THEREFORE JUDGES MUST BE
KEPT MINDFUL OF THEIR LIMITATIONS AND OF THEIR ULTIMATE PUBLIC
RESPONSIBILITY BY A VIGOROUS STREAM OF CRITICISM EXPRESSED WITH CANDOR
HOWEVER BLUNT.  FN5  "A MAN CANNOT BE SUMMARILY LAID BY THE HEELS
BECAUSE HIS WORDS MAY MAKE PUBLIC FEELING MORE UNFAVORABLE IN CASE THE
JUDGE SHOULD BE ASKED TO ACT AT SOME LATER DATE, ANY MORE THAN HE CAN
FOR EXCITING PUBLIC FEELING AGAINST THE JUDGE FOR WHAT HE ALREADY HAS
DONE."  MR. JUSTICE HOLMES IN CRAIG V. HECHT, 263 U.S. 255, 281-82. 
BUT THE CONSTITUTION DOES NOT BAR A STATE FROM ACTING ON THE THEORY OF
OUR SYSTEM OF JUSTICE, THAT THE "CONCLUSIONS TO BE REACHED IN A CASE
WILL BE INDUCED ONLY BY EVIDENCE AND ARGUMENT IN OPEN COURT, AND NOT BY
ANY OUTSIDE INFLUENCE, WHETHER OF PRIVATE TALK OR PUBLIC PRINT." 
PATTERSON V. COLORADO, 205 U.S. 454, 462.  THE THEORY OF OUR SYSTEM OF
JUSTICE AS THUS STATED FOR THE COURT BY MR. JUSTICE HOLMES HAS NEVER
BEEN QUESTIONED BY ANY MEMBER OF THE COURT.  IT WAS QUESTIONED NEITHER
BY MR. JUSTICE HARLAN NOR BY MR. JUSTICE BREWER IN THEIR DISSENTS IN
THE PATTERSON CASE.  THE DIFFERENCES IN THAT CASE CONCERNED THE
QUESTION WHETHER "THERE IS TO BE FOUND IN THE FOURTEENTH AMENDMENT A
PROHIBITION  ...  SIMILAR TO THAT IN THE FIRST," AND, IF SO, WHAT THE
SCOPE OF THAT PROTECTION IS.  THE FIRST QUESTION WAS SETTLED IN THE
AFFIRMATIVE BY A SERIES OF CASES BEGINNING WITH GITLOW V. NEW YORK, 268
U.S. 652.  AND THAT THE SCOPE OF THE FIRST AMENDMENT WAS BROADER THAN
WAS INTIMATED IN THE OPINION IN THE PATTERSON CASE, WAS LATER
RECOGNIZED BY MR. JUSTICE HOLMES, SPEAKING FOR THE COURT, IN SCHENCK V.
UNITED STATES, 249 U.S. 47.  BUT THAT THE CONVENTIONAL POWER TO PUNISH
FOR CONTEMPT IS NOT A CENSORSHIP IN ADVANCE BUT A PUNISHMENT FOR PAST
CONDUCT AND, AS SUCH, LIKE PROSECUTION FOR A CRIMINAL LIBEL, IS NOT
OFFENSIVE EITHER TO THE FIRST OR TO THE FOURTEENTH AMENDMENTS, HAS
NEVER BEEN DOUBTED THROUGHOUT THIS COURT'S HISTORY. 

THIS CONCEPTION OF JUSTICE, THE PRODUCT OF A LONG AND ARDUOUS EFFORT
IN THE HISTORY OF FREEDOM, IS ONE OF THE GREATEST ACHIEVEMENTS OF
CIVILIZATION, AND IS NOT LESS TO BE CHERISHED AT A TIME WHEN IT IS
REPUDIATED AND DERIDED BY POWERFUL REGIMES.  "THE RIGHT TO SUE AND
DEFEND IN THE COURTS IS THE ALTERNATIVE OF FORCE.  IN AN ORGANIZED
SOCIETY IT IS THE RIGHT CONSERVATIVE OF ALL OTHER RIGHTS, AND LIES AT
THE FOUNDATION OF ORDERLY GOVERNMENT."  CHAMBERS V. BALTIMORE & OHIO R.
CO., 207 U.S. 142, 148.  THIS HAS NOTHING TO DO WITH CURTAILING
EXPRESSION OF OPINION, BE IT POLITICAL, ECONOMIC, OR RELIGIOUS, THAT
MAY BE OFFENSIVE TO ORTHODOX VIEWS.  IT HAS TO DO WITH THE POWER OF THE
STATE TO DISCHARGE AN INDISPENSABLE FUNCTION OF CIVILIZED SOCIETY, THAT
OF ADJUDICATING CONTROVERSIES BETWEEN ITS CITIZENS AND BETWEEN CITIZENS
AND THE STATE THROUGH LEGAL TRIBUNALS IN ACCORDANCE WITH THEIR HISTORIC
PROCEDURES.  COURTS AND JUDGES MUST TAKE THEIR SHARE OF THE GAINS AND
PAINS OF DISCUSSION WHICH IS UNFETTERED EXCEPT BY LAWS OF LIBEL, BY
SELF - RESTRAINT, AND BY GOOD TASTE.  WINDS OF DOCTRINE SHOULD FREELY
BLOW FOR THE PROMOTION OF GOOD AND THE CORRECTION OF EVIL.  NOR SHOULD
RESTRICTIONS BE PERMITTED THAT CRAMP THE FEELING OF FREEDOM IN THE USE
OF TONGUE OR PEN REGARDLESS OF THE TEMPER OR THE TRUTH OF WHAT MAY BE
UTTERED. 

COMMENT HOWEVER FORTHRIGHT IS ONE THING.  INTIMIDATION WITH RESPECT
TO SPECIFIC MATTERS STILL IN JUDICIAL SUSPENSE, QUITE ANOTHER.  SEE
LASKI, PROCEDURE FOR CONSTRUCTIVE CONTEMPT IN ENGLAND, 41 HARV. L. REV.
1031, 1034; GOODHART, NEWSPAPERS AND CONTEMPT IN ENGLISH LAW, 48 HARV.
L. REV. 885.  A PUBLICATION INTENDED TO TEACH THE JUDGE A LESSON, OR TO
VENT SPLEEN, OR TO DISCREDIT HIM, OR TO INFLUENCE HIM IN HIS FUTURE
CONDUCT, WOULD NOT JUSTIFY EXERCISE OF THE CONTEMPT POWER.  COMPARE
JUDGE LEARNED HAND IN EX PARTE CRAIG, 282 F. 138, 160-61.  IT MUST
REFER TO A MATTER UNDER CONSIDERATION AND CONSTITUTE IN EFFECT A THREAT
TO ITS IMPARTIAL DISPOSITION.  IT MUST BE CALCULATED TO CREATE AN
ATMOSPHERIC PRESSURE INCOMPATIBLE WITH RATIONAL, IMPARTIAL
ADJUDICATION.  BUT TO INTERFERE WITH JUSTICE IT NEED NOT SUCCEED.  AS
WITH OTHER OFFENSES, THE STATE SHOULD BE ABLE TO PROSCRIBE ATTEMPTS
THAT FAIL BECAUSE OF THE DANGER THAT ATTEMPTS MAY SUCCEED.  THE
PURPOSE, IT WILL DO NO HARM TO REPEAT, IS NOT TO PROTECT THE COURT AS A
MYSTICAL ENTITY OR THE JUDGES AS INDIVIDUALS OR AS ANOINTED PRIESTS SET
APART FROM THE COMMUNITY AND SPARED THE CRITICISM TO WHICH IN A
DEMOCRACY OTHER PUBLIC SERVANTS ARE EXPOSED.  THE PURPOSE IS TO PROTECT
IMMEDIATE LITIGANTS AND THE PUBLIC FROM THE MISCHIEVOUS DANGER OF AN
UNFREE OR COERCED TRIBUNAL.  THE POWER SHOULD BE INVOKED ONLY WHERE THE
ADJUDICATORY PROCESS MAY BE HAMPERED OR HINDERED IN ITS CALM, DETACHED,
AND FEARLESS DISCHARGE OF ITS DUTY ON THE BASIS OF WHAT HAS BEEN
SUBMITTED IN COURT.  THE BELIEF THAT DECISIONS ARE SO REACHED IS THE
SOURCE OF THE CONFIDENCE ON WHICH LAW ULTIMATELY RESTS. 

IT WILL NOT DO TO ARGUE THAT A STATE CANNOT PERMIT ITS JUDGES TO
RESIST COERCIVE INTERFERENCE WITH THEIR WORK IN HAND BECAUSE OTHER
OFFICIALS OF GOVERNMENT MUST ENDURE SUCH OBSTRUCTIONS.  IN SUCH MATTERS
"A PAGE OF HISTORY IS WORTH A VOLUME OF LOGIC."  NEW YORK TRUST CO. V.
EISNER, 256 U.S. 345, 349.  PRESIDENTS AND GOVERNORS AND LEGISLATORS
ARE POLITICAL OFFICIALS TRADITIONALLY SUBJECT TO POLITICAL INFLUENCE
AND THE ROUGH AND TUMBLE OF THE HUSTINGS, WHO HAVE OPEN TO THEM
TRADITIONAL MEANS OF SELF-DEFENSE.  IN A VERY IMMEDIATE SENSE,
LEGISLATORS AND EXECUTIVES EXPRESS THE POPULAR WILL.  BUT JUDGES DO NOT
EXPRESS THE POPULAR WILL IN ANY ORDINARY MEANING OF THE TERM.  THE
LIMITED POWER TO PUNISH FOR CONTEMPT WHICH IS HERE INVOLVED WHOLLY
REJECTS ANY ASSUMPTION THAT JUDGES ARE SUPERIOR TO OTHER OFFICIALS. 
THEY MERELY EXERCISE A FUNCTION HISTORICALLY AND INTRINSICALLY
DIFFERENT.  FROM THAT DIFFERENCE IS DRAWN THE POWER WHICH HAS BEHIND IT
THE AUTHORITY AND THE WISDOM OF OUR WHOLE HISTORY.  BECAUSE THE
FUNCTION OF JUDGES AND THAT OF OTHER OFFICIALS IN SPECIAL SITUATIONS
MAY APPROACH SIMILARITY, HARD CASES CAN BE PUT WHICH LOGICALLY MAY
CONTRADICT THE SPECIAL QUALITY OF THE JUDICIAL PROCESS.  "BUT THE
PROVISIONS OF THE CONSTITUTION ARE NOT MATHEMATICAL FORMULAS HAVING
THEIR ESSENCE IN THEIR FORM; THEY ARE ORGANIC LIVING INSTITUTIONS
TRANSPLANTED FROM ENGLISH SOIL.  THEIR SIGNIFICANCE IS VITAL NOT
FORMAL; IT IS TO BE GATHERED NOT SIMPLY BY TAKING THE WORDS AND A
DICTIONARY, BUT BY CONSIDERING THEIR ORIGIN AND THE LINE OF THEIR
GROWTH."  GOMPERS V. UNITED STATES, 233 U.S. 604, 610. 

WE ARE CHARGED HERE WITH THE DUTY, ALWAYS DELICATE, OF SITTING IN
JUDGMENT ON STATE POWER.  WE MUST BE FASTIDIOUSLY CAREFUL NOT TO MAKE
OUR PRIVATE VIEWS THE MEASURE OF CONSTITUTIONAL AUTHORITY.  TO BE SURE,
WE ARE HERE CONCERNED WITH AN APPEAL TO THE GREAT LIBERTIES WHICH THE
CONSTITUTION ASSURES TO ALL OUR PEOPLE, EVEN AGAINST STATE DENIAL. 
WHEN A SUBSTANTIAL CLAIM OF AN ABRIDGMENT OF THESE LIBERTIES IS
ADVANCED, THE PRESUMPTION OF VALIDITY THAT BELONGS TO AN EXERCISE OF
STATE POWER MUST NOT BE ALLOWED TO IMPAIR SUCH A LIBERTY OR TO CHECK
OUR CLOSE EXAMINATION OF THE MERITS OF THE CONTROVERSY.  BUT THE UTMOST
PROTECTION TO BE ACCORDED TO FREEDOM OF SPEECH AND OF THE PRESS CANNOT
DISPLACE OUR DUTY TO GIVE DUE REGARD ALSO TO THE STATE'S POWER TO DEAL
WITH WHAT MAY ESSENTIALLY BE LOCAL SITUATIONS. 

BECAUSE FREEDOM OF PUBLIC EXPRESSION ALONE ASSURES THE UNFOLDING OF
TRUTH, IT IS INDISPENSABLE TO THE DEMOCRATIC PROCESS.  BUT EVEN THAT
FREEDOM IS NOT AN ABSOLUTE AND IS NOT PREDETERMINED.  BY A DOCTRINAIRE
OVERSTATEMENT OF ITS SCOPE AND BY GIVING IT AN ILLUSORY ABSOLUTE
APPEARANCE, THERE IS DANGER OF THWARTING THE FREE CHOICE AND THE
RESPONSIBILITY OF EXERCISING IT WHICH ARE BASIC TO A DEMOCRATIC
SOCIETY.  WHILE WE ARE REVIEWING A JUDGMENT OF THE CALIFORNIA SUPREME
COURT AND NOT AN ACT OF ITS LEGISLATURE OR THE VOICE OF THE PEOPLE OF
CALIFORNIA FORMALLY EXPRESSED IN ITS CONSTITUTION, WE ARE IN FACT
PASSING JUDGMENT ON "THE POWER OF THE STATE AS A WHOLE."  RIPPEY V.
TEXAS, 193 U.S. 504, 509; SKIRIOTES V. FLORIDA, 313 U.S. 69, 79; UNITED
GAS CO. V. TEXAS, 303 U.S. 123, 142; MISSOURI V. DOCKERY, 191 U.S. 165,
171; IOWA-DES MOINES BANK V. BENNETT, 284 U.S. 239, 244. 

BY THE CONSTITUTION OF CALIFORNIA, AS AUTHORITATIVELY CONSTRUED BY
ITS SUPREME COURT AND THEREFORE AS BINDING UPON THIS COURT AS THOUGH
RATIFIED BY ALL THE VOTERS OF CALIFORNIA, THE CITIZENS OF THAT STATE
HAVE CHOSEN TO PLACE IN ITS COURTS THE POWER, AS WE HAVE DEFINED IT, TO
INSURE IMPARTIAL JUSTICE.  IF THE CITIZENS OF CALIFORNIA HAVE OTHER
DESIRES, IF THEY WANT TO PERMIT THE FREE PLAY OF MODERN PUBLICITY IN
CONNECTION WITH PENDING LITIGATION, IT IS WITHIN THEIR EASY POWER TO
SAY SO AND TO HAVE THEIR WAY.  THEY HAVE READY MEANS OF AMENDING THEIR
CONSTITUTION AND THEY HAVE FREQUENTLY MADE USE OF THEM.  WE ARE, AFTER
ALL, SITTING OVER THREE THOUSAND MILES AWAY FROM A GREAT STATE, WITHOUT
INTIMATE KNOWLEDGE OF ITS HABITS AND ITS NEEDS, IN A MATTER WHICH DOES
NOT CUT ACROSS THE AFFIRMATIVE POWERS OF THE NATIONAL GOVERNMENT.  SOME
PLAY OF POLICY MUST BE LEFT TO THE STATES IN THE TASK OF ACCOMMODATING
INDIVIDUAL RIGHTS AND THE OVERRIDING PUBLIC WELL-BEING WHICH MAKES
THOSE RIGHTS POSSIBLE.  HOW ARE WE TO KNOW WHETHER AN EASY-GOING OR
STIFFER VIEW OF WHAT AFFECTS THE ACTUAL ADMINISTRATION OF JUSTICE IS
APPROPRIATE TO LOCAL CIRCUMSTANCES?  HOW ARE WE TO SAY THAT CALIFORNIA
HAS NO RIGHT TO MODEL ITS JUDICIARY UPON THE QUALITIES AND STANDARDS
ATTAINED BY THE ENGLISH ADMINISTRATION OF JUSTICE, AND TO USE MEANS
DEEMED APPROPRIATE TO THAT END BY ENGLISH COURTS.  FN6  IT IS SURELY AN
ARBITRARY JUDGMENT TO SAY THAT THE DUE PROCESS CLAUSE DENIES CALIFORNIA
THAT RIGHT.  FOR RESPECT FOR "THE LIBERTY OF THE SUBJECT," THOUGH NOT
EXPLICITLY WRITTEN INTO A CONSTITUTION, IS SO DEEPLY EMBEDDED IN THE
VERY TEXTURE OF ENGLISH FEELING AND CONSCIENCE  FN7  THAT IT SURVIVES,
AS THE PAGES OF HANSARD ABUNDANTLY PROVE, THE EXIGENCIES OF THE LIFE
AND DEATH STRUGGLE OF THE BRITISH PEOPLE.  SEE, E.G., CARR, CONCERNING
ENGLISH ADMINISTRATIVE LAW, C. 3("CRISIS LEGISLATION"). 

THE RULE OF LAW APPLIED IN THESE CASES BY THE CALIFORNIA COURT
FORBADE PUBLICATIONS HAVING "A REASONABLE TENDENCY TO INTERFERE WITH
THE ORDERLY ADMINISTRATION OF JUSTICE IN PENDING ACTIONS."  TO DENY
THAT THIS AGE-OLD FORMULATION OF THE PROHIBITION AGAINST INTERFERENCE
WITH DISPASSIONATE ADJUDICATION IS PROPERLY CONFINED TO THE SUBSTANTIVE
EVIL IS NOT ONLY TO TURN ONE'S BACK ON HISTORY BUT ALSO TO INDULGE IN
AN IDLE PLAY ON WORDS, UNWORTHY OF CONSTITUTIONAL ADJUDICATION.  IT WAS
URGED BEFORE US THAT THE WORDS "REASONABLE TENDENCY" HAD A FATAL
PERVASIVENESS, AND THAT THEIR REPLACEMENT BY "CLEAR AND PRESENT DANGER"
WAS REQUIRED TO STATE A CONSTITUTIONALLY PERMISSIBLE RULE OF LAW.  THE
CONSTITUTION, AS WE HAVE RECENTLY HAD OCCASION TO REMARK, IS NOT A
FORMULARY.  WISCONSIN V. J. C. PENNEY CO., 311 U.S. 435, 444.  NOR DOES
IT REQUIRE DISPLACEMENT OF AN HISTORIC TEST BY A PHRASE WHICH FIRST
GAINED CURRENCY ON MARCH 3, 1919.  SCHENCK V. UNITED STATES, 249 U.S.
47.  OUR DUTY IS NOT ENDED WITH THE RECITATION OF PHRASES THAT ARE THE
SHORT-HAND OF A COMPLICATED HISTORIC PROCESS.  THE PHRASE "CLEAR AND
PRESENT DANGER" IS MERELY A JUSTIFICATION FOR CURBING UTTERANCE WHERE
THAT IS WARRANTED BY THE SUBSTANTIVE EVIL TO BE PREVENTED.  THE PHRASE
ITSELF IS AN EXPRESSION OF TENDENCY AND NOT OF ACCOMPLISHMENT, AND THE
LITERARY DIFFERENCE BETWEEN IT AND "REASONABLE TENDENCY" IS NOT OF
CONSTITUTIONAL DIMENSION. 

HERE THE SUBSTANTIVE EVIL TO BE ELIMINATED IS INTERFERENCE WITH
IMPARTIAL ADJUDICATION.  TO DETERMINE WHAT INTERFERENCES MAY BE MADE
THE BASIS FOR CONTEMPT TENDERS PRECISELY THE SAME KIND OF ISSUES AS
THAT TO WHICH THE "CLEAR AND PRESENT DANGER" TEST GIVES RISE.  "IT IS A
QUESTION OF PROXIMITY AND DEGREE."  SCHENCK V. UNITED STATES, SUPRA AT
52.  AND THIS, ACCORDING TO MR. JUSTICE BRANDEIS "IS A RULE OF REASON
...  LIKE MANY OTHER RULES FOR HUMAN CONDUCT, IT CAN BE APPLIED
CORRECTLY ONLY BY THE EXERCISE OF GOOD JUDGMENT."  SCHAEFER V. UNITED
STATES, 251 U.S. 466, 482-83.  HAS CALIFORNIA'S JUDGMENT HERE
UNDERMINED LIBERTIES PROTECTED BY THE CONSTITUTION?  IN COMMON WITH
OTHER QUESTIONS OF DEGREE, THIS IS TO BE SOLVED NOT BY SHORTHAND
PHRASES BUT BY CONSIDERATION OF THE CIRCUMSTANCES OF THE PARTICULAR
CASE.  ONE CANNOT YELL "FIRE" IN A CROWDED THEATER; POLICE OFFICERS
CANNOT TURN THEIR QUESTIONING INTO AN INSTRUMENT OF MENTAL OPPRESSION. 
CHAMBERS V. FLORIDA, 309 U.S. 227. 

IF A RULE OF STATE LAW IS NOT CONFINED TO THE EVIL WHICH MAY BE DEALT
WITH BUT PLACES AN INDISCRIMINATE BAN ON PUBLIC EXPRESSION THAT
OPERATES AS AN OVERHANGING THREAT TO FREE DISCUSSION, IT MUST FALL
WITHOUT REGARD TO THE FACTS OF THE PARTICULAR CASE.  THIS IS TRUE
WHETHER THE RULE OF LAW BE DECLARED IN A STATUTE OR IN A DECISION OF A
COURT.  THORNHILL V. ALABAMA, 310 U.S. 88; CANTWELL V. CONNECTICUT, 310
U.S. 296.  IN THE CASES BEFORE US THERE WAS NO BLANKET OR DRAGNET
PROHIBITION OF UTTERANCE AFFECTING COURTS.  FREEDOM TO CRITICIZE THEIR
WORK, TO ASSAIL GENERALLY THE INSTITUTION OF COURTS, TO REPORT AND
COMMENT ON MATTERS IN LITIGATION BUT NOT TO SUBVERT THE PROCESS OF
DECIDING - ALL THIS FREEDOM WAS RESPECTED.  ONLY THE STATE'S INTEREST
IN CALM AND ORDERLY DECISIONS, WHICH REPRESENTED ALSO THE
CONSTITUTIONAL RIGHT OF THE PARTIES, LED IT TO CONDEMN COERCIVE
UTTERANCES DIRECTED TOWARDS A PENDING PROCEEDING.  CALIFORNIA, SPEAKING
THROUGH ITS COURTS, ACTED BECAUSE OF THEIR CONCLUSION THAT SUCH
UTTERANCES UNDERMINED THE CONDITIONS NECESSARY FOR FAIR ADJUDICATION. 
IT IS SUGGESTED THAT THREATS, BY DISCUSSION, TO UNTRAMMELED DECISIONS
BY COURTS ARE THE MOST NATURAL EXPRESSIONS WHEN PUBLIC FEELING RUNS
HIGHEST.  BUT IT DOES NOT FOLLOW THAT STATES ARE LEFT POWERLESS TO
PREVENT THEIR COURTS FROM BEING SUBVERTED BY OUTSIDE PRESSURE WHEN THE
NEED FOR IMPARTIALITY AND FAIR PROCEEDING IS GREATEST.  TO SAY THAT THE
FRAMERS OF THE CONSTITUTION SANCTIFIED VEILED VIOLENCE THROUGH COERCIVE
SPEECH DIRECTED AGAINST THOSE CHARGED WITH ADJUDICATION IS NOT MERELY
TO MAKE VIOLENCE AN INGREDIENT OF JUSTICE; IT MOCKS THE VERY IDEAL OF
JUSTICE BY RESPECTING ITS FORMS WHILE STULTIFYING ITS UNCONTAMINATED
EXERCISE. 

WE TURN TO THE SPECIFIC CASES BEFORE US: 

THE EARLIEST EDITORIAL INVOLVED IN NO. 3, "SIT-STRIKERS CONVICTED,"
COMMENTED UPON A CASE THE DAY AFTER A JURY HAD RETURNED A VERDICT AND
THE DAY BEFORE THE TRIAL JUDGE WAS TO PRONOUNCE SENTENCE AND HEAR
MOTIONS FOR A NEW TRIAL AND APPLICATIONS FOR PROBATION.  ON ITS FACE
THE EDITORIAL MERELY EXPRESSED EXULTING APPROVAL OF THE VERDICT, A
COMPLETED ACTION OF THE COURT, AND THERE IS NOTHING IN THE RECORD TO
GIVE IT ADDITIONAL SIGNIFICANCE.  THE SAME IS TRUE OF THE SECOND
EDITORIAL, "FALL OF AN EX-QUEEN," WHICH LURIDLY DRAWS A MORAL FROM A
VERDICT OF GUILTY IN A SORDID TRIAL AND WHICH WAS PUBLISHED EIGHT DAYS
PRIOR TO THE DAY SET FOR IMPOSING SENTENCE.  IN BOTH INSTANCES
IMPOSITION OF SENTENCES WAS IMMEDIATELY PENDING AT THE TIME OF
PUBLICATION, BUT IN NEITHER CASE WAS THERE ANY DECLARATION, DIRECT OR
SLY, IN REGARD TO THIS.  AS THE SPECIAL GUARDIAN OF THE BILL OF RIGHTS,
THIS COURT IS UNDER THE HEAVIEST RESPONSIBILITY TO SAFEGUARD THE
LIBERTIES GUARANTEED FROM ANY ENCROACHMENT, HOWEVER ASTUTELY
DISGUISED.  THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PROTECTS
THE RIGHT TO COMMENT ON A JUDICIAL PROCEEDING, SO LONG AS THIS IS NOT
DONE IN A MANNER INTERFERING WITH THE IMPARTIAL DISPOSITION OF A
LITIGATION.  THERE IS NO INDICATION THAT MORE WAS DONE IN THESE
EDITORIALS; THEY WERE NOT CLOSE THREATS TO THE JUDICIAL FUNCTION WHICH
A STATE SHOULD BE ABLE TO RESTRAIN.  WE AGREE THAT THE JUDGMENT OF THE
STATE COURT IN THIS REGARD SHOULD NOT STAND. 

"PROBATION FOR GORILLAS?", THE THIRD EDITORIAL, IS A DIFFERENT
MATTER.  ON APRIL 22, 1938, A LOS ANGELES JURY FOUND TWO DEFENDANTS
GUILTY OF ASSAULT WITH A DEADLY WEAPON AND OF A CONSPIRACY TO VIOLATE
ANOTHER SECTION OF THE PENAL CODE.  ON MAY 2ND, THE DEFENDANTS APPLIED
FOR PROBATION AND THE TRIAL JUDGE ON THE SAME DAY SET JUNE 7TH AS THE
DAY FOR DISPOSING OF THIS APPLICATION AND FOR SENTENCING THE
DEFENDANTS.  IN THE LOS ANGELES TIMES FOR MAY 5TH APPEARED THE
FOLLOWING EDITORIAL ENTITLED "PROBATION FOR GORILLAS?": 

"TWO MEMBERS OF DAVE BECK'S WRECKING CREW, ENTERTAINMENT COMMITTEE,
GOON SQUAD OR GORILLAS, HAVING BEEN CONVICTED IN SUPERIOR COURT OF
ASSAULTING NONUNION TRUCK DRIVERS, HAVE ASKED FOR PROBATION. 
PRESUMABLY THEY WILL SAY THEY ARE 'FIRST OFFENDERS,' OR PLEAD THAT THEY
WERE MERELY INDULGING A PLAYFUL EXUBERANCE WHEN, WITH SLINGSHOTS, THEY
FIRED STEEL MISSILES AT MEN WHOSE ONLY OFFENSE WAS WISHING TO WORK FOR
A LIVING WITHOUT PAYING TRIBUTE TO THE ERSTWHILE BOSS OF SEATTLE. 

"SLUGGERS FOR PAY, LIKE MURDERERS FOR PROFIT, ARE IN A SLIGHTLY
DIFFERENT CATEGORY FROM ORDINARY CRIMINALS.  MEN WHO COMMIT MAYHEM FOR
WAGES ARE NOT MERELY VIOLATORS OF THE PEACE AND DIGNITY OF THE STATE;
THEY ARE ALSO CONSPIRATORS AGAINST IT.  THE MAN WHO BURGLES BECAUSE HIS
CHILDREN ARE HUNGRY MAY HAVE SOME CLAIM ON PUBLIC SYMPATHY.  HE WHOSE
CRIME IS ONE OF IMPULSE MAY BE ENTITLED TO LENITY.  BUT HE WHO HIRES
OUT HIS MUSCLES FOR THE CREATION OF DISORDER AND IN AID OF A RACKET IS
A DELIBERATE FOE OF ORGANIZED SOCIETY AND SHOULD BE PENALIZED
ACCORDINGLY. 

"IT WILL TEACH NO LESSON TO OTHER THUGS TO PUT THESE MEN ON GOOD
BEHAVIOR FOR A LIMITED TIME.  THEIR 'DUTY' WOULD SIMPLY BE TAKEN OVER
BY OTHERS LIKE THEM.  IF BECK'S THUGS, HOWEVER, ARE MADE TO REALIZE
THAT THEY FACE SAN QUENTIN WHEN THEY ARE CAUGHT, IT WILL TEND TO MAKE
THEIR DISREPUTABLE OCCUPATION UNPOPULAR.  JUDGE A. A. SCOTT WILL MAKE A
SERIOUS MISTAKE IF HE GRANTS PROBATION TO MATTHEW SHANNON AND KENNAN
HOLMES.  THIS COMMUNITY NEEDS THE EXAMPLE OF THEIR ASSIGNMENT TO THE
JUTE MILL." 

THIS EDITORIAL WAS PUBLISHED THREE DAYS AFTER THE TRIAL JUDGE HAD
FIXED THE TIME FOR SENTENCING AND FOR PASSING ON AN APPLICATION FOR
PROBATION, AND A MONTH PRIOR TO THE DATE SET.  IT CONSISTED OF A
SUSTAINED ATTACK ON THE DEFENDANTS, WITH AN EXPLICIT DEMAND OF THE
JUDGE THAT THEY BE DENIED PROBATION AND BE SENT "TO THE JUTE MILL." 
THIS MEANT, IN CALIFORNIA IDIOM, THAT IN THE EXERCISE OF HIS DISCRETION
THE JUDGE SHOULD TREAT THE OFFENSE AS A FELONY, WITH ALL ITS DIRE
CONSEQUENCES, AND NOT AS A MISDEMEANOR.  UNDER THE CALIFORNIA PENAL
CODE THE TRIAL JUDGE HAD WIDE DISCRETION IN SENTENCING THE DEFENDANTS:
HE COULD SENTENCE THEM TO THE COUNTY JAIL FOR ONE YEAR OR LESS, OR TO
THE STATE PENITENTIARY FOR TWO YEARS.  THE EDITORIAL DEMANDED THAT HE
TAKE THE LATTER ALTERNATIVE AND SEND THE DEFENDANTS TO THE "JUTE MILL"
OF THE STATE PENITENTIARY.  A POWERFUL NEWSPAPER ADMONISHED A JUDGE,
WHO WITHIN A YEAR WOULD HAVE TO SECURE POPULAR APPROVAL IF HE DESIRED
CONTINUANCE IN OFFICE, THAT FAILURE TO COMPLY WITH ITS DEMANDS WOULD BE
"A SERIOUS MISTAKE."  CLEARLY, THE STATE COURT WAS JUSTIFIED IN
TREATING THIS AS A THREAT TO IMPARTIAL ADJUDICATION.  IT IS TOO NAIVE
TO SUGGEST THAT THE EDITORIAL WAS WRITTEN WITH A FEELING OF IMPOTENCE
AND AN INTENTION TO UTTER IDLE WORDS.  THE PUBLICATION OF THE EDITORIAL
WAS HARDLY AN EXERCISE IN FUTILITY.  IF IT IS TRUE OF JURIES IT IS NOT
WHOLLY UNTRUE OF JUDGES THAT THEY TOO MAY BE "IMPREGNATED BY THE
ENVIRONING ATMOSPHERE."  MR. JUSTICE HOLMES IN FRANK V. MANGUM, 237
U.S. 309, 349.  CALIFORNIA SHOULD NOT BE DENIED THE RIGHT TO FREE ITS
COURTS FROM SUCH COERCIVE, EXTRANEOUS INFLUENCES; IT CAN THUS ASSURE
ITS CITIZENS OF THEIR CONSTITUTIONAL RIGHT OF A FAIR TRIAL.  HERE THERE
WAS A REAL AND SUBSTANTIAL MANIFESTATION OF AN ENDEAVOR TO EXERT
OUTSIDE INFLUENCE.  A POWERFUL NEWSPAPER BROUGHT ITS FULL COERCIVE
POWER TO BEAR IN DEMANDING A PARTICULAR SENTENCE.  IF SUCH SENTENCE HAD
BEEN IMPOSED, READERS MIGHT ASSUME THAT THE COURT HAD BEEN INFLUENCED
IN ITS ACTION; IF LESSER PUNISHMENT HAD BEEN IMPOSED, AT LEAST A
PORTION OF THE COMMUNITY MIGHT BE STIRRED TO RESENTMENT.  IT CANNOT BE
DENIED THAT EVEN A JUDGE MAY BE AFFECTED BY SUCH A QUANDARY.  WE CANNOT
SAY THAT THE STATE COURT WAS OUT OF BOUNDS IN CONCLUDING THAT SUCH
CONDUCT OFFENDS THE FREE COURSE OF JUSTICE.  COMMENT AFTER THE
IMPOSITION OF SENTENCE - CRITICISM, HOWEVER UNRESTRAINED, OF ITS
SEVERITY OR LENIENCE OR DISPARITY, CF. AMBARD V. ATTORNEY GENERAL FOR
TRINIDAD AND TOBAGO, (1936) A.C. 322,  - IS AN EXERCISE OF THE RIGHT OF
FREE DISCUSSION.  BUT TO DENY THE STATES POWER TO CHECK A SERIOUS
ATTEMPT AT DICTATING, FROM WITHOUT, THE SENTENCE TO BE IMPOSED IN A
PENDING CASE, IS TO DENY THE RIGHT TO IMPARTIAL JUSTICE AS IT WAS
CHERISHED BY THE FOUNDERS OF THE REPUBLIC AND BY THE FRAMERS OF THE
FOURTEENTH AMENDMENT.  IT WOULD ERECT INTO A CONSTITUTIONAL RIGHT,
OPPORTUNITIES FOR ABUSE OF UTTERANCE INTERFERING WITH THE DISPASSIONATE
EXERCISE OF THE JUDICIAL FUNCTION.  SEE REX V. DAILY MAIL, (1921) 2
K.B. 733, 749; ATTORNEY GENERAL V. TONKS, (1939) N.Z.L.R. 533. 

IN NO. 1, HARRY R. BRIDGES CHALLENGES A JUDGMENT BY THE SUPERIOR
COURT OF CALIFORNIA FINING HIM $125 FOR CONTEMPT.  HE WAS PRESIDENT OF
THE INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, AN AFFILIATE
OF THE COMMITTEE FOR INDUSTRIAL ORGANIZATION, AND ALSO WEST COAST
DIRECTOR FOR THE C.I.O.  THE I.L.W.U. WAS LARGELY COMPOSED OF MEN WHO
HAD WITHDRAWN FROM THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AN
AFFILIATE OF THE AMERICAN FEDERATION OF LABOR.  IN THE FALL OF 1937 THE
RIVAL LONGSHOREMEN'S UNIONS WERE STRUGGLING FOR CONTROL OF A LOCAL IN
SAN PEDRO HARBOR.  THE OFFICERS OF THIS LOCAL, CARRYING MOST OF ITS
MEMBERS WITH THEM, SOUGHT TO TRANSFER THE ALLEGIANCE OF THE LOCAL TO
I.L.W.U.  THEREUPON, LONGSHOREMEN REMAINING IN I.L.A. BROUGHT SUIT IN
THE SUPERIOR COURT OF LOS ANGELES COUNTY AGAINST THE LOCAL AND ITS
OFFICERS.  ON JANUARY 21, 1938, JUDGE SCHMIDT, SITTING IN THE SUPERIOR
COURT, ENJOINED THE OFFICERS FROM WORKING ON BEHALF OF I.L.W.U. AND
APPOINTED A RECEIVER TO CONDUCT THE AFFAIRS OF THE LOCAL AS AN
AFFILIATE OF THE A.F. OF L., BY TAKING CHARGE OF THE OUTSTANDING
BARGAINING AGREEMENTS OF THE LOCAL AND OF ITS HIRING HALL, WHICH IS THE
PHYSICAL MAINSTAY OF SUCH A UNION.  JUDGE SCHMIDT PROMPTLY STAYED
ENFORCEMENT OF HIS DECREE, AND ON JANUARY 24TH THE DEFENDANTS IN THE
INJUNCTION SUIT MOVED FOR A NEW TRIAL AND FOR VACATION OF THE
JUDGMENT.  IN VIEW OF ITS LOCAL SETTING, THE CASE AROUSED GREAT PUBLIC
INTEREST.  THE WATERFRONT SITUATION ON THE PACIFIC COAST WAS ALSO
WATCHED BY THE UNITED STATES DEPARTMENT OF LABOR, AND BRIDGES HAD BEEN
IN COMMUNICATION WITH THE SECRETARY OF LABOR CONCERNING THE
DIFFICULTIES.  ON THE SAME DAY THAT THE MOTION FOR NEW TRIAL WAS FILED,
BRIDGES SENT THE SECRETARY THE FOLLOWING WIRE CONCERNING JUDGE
SCHMIDT'S DECREE: 

"THIS DECISION IS OUTRAGEOUS CONSIDERING I.L.A. HAS 15 MEMBERS (IN
SAN PEDRO) AND THE INTERNATIONAL LONGSHOREMEN-WAREHOUSEMEN'S UNION HAS
3,000.  INTERNATIONAL LONGSHOREMEN-WAREHOUSEMEN UNION HAS PETITIONED
THE LABOR BOARD FOR CERTIFICATION TO REPRESENT SAN PEDRO LONGSHOREMEN
WITH INTERNATIONAL LONGSHOREMEN ASSOCIATION DENIED REPRESENTATION
BECAUSE IT REPRESENTS ONLY 15 MEN.  BOARD HEARING HELD; DECISION NOW
PENDING.  ATTEMPTED ENFORCEMENT OF SCHMIDT DECISION WILL TIE UP PORT OF
LOS ANGELES AND INVOLVE ENTIRE PACIFIC COAST.  INTERNATIONAL
LONGSHOREMEN-WAREHOUSEMEN UNION, REPRESENTING OVER 11,000 OF THE 12,000
LONGSHOREMEN ON THE PACIFIC COAST, DOES NOT INTEND TO ALLOW STATE
COURTS TO OVERRIDE THE MAJORITY VOTE OF MEMBERS IN CHOOSING ITS
OFFICERS AND REPRESENTATIVES AND TO OVERRIDE THE NATIONAL LABOR
RELATIONS BOARD." 

THIS TELEGRAM DULY FOUND ITS WAY INTO THE METROPOLITAN NEWSPAPERS OF
CALIFORNIA.  BRIDGES' RESPONSIBILITY FOR ITS PUBLICATION IS CLEAR.  HIS
PUBLICATION OF THE TELEGRAN IN THE LOS ANGELES AND SAN FRANCISCO PAPERS
IS THE BASIS OF BRIDGES' CONVICTION FOR CONTEMPT. 

THE PUBLICATION OF THE TELEGRAM WAS REGARDED BY THE STATE SUPREME
COURT AS "A THREAT THAT IF AN ATTEMPT WAS MADE TO ENFORCE THE DECISION,
THE PORTS OF THE ENTIRE PACIFIC COAST WOULD BE TIED UP" AND "A DIRECT
CHALLENGE TO THE COURT THAT 11,000 LONGSHOREMEN ON THE PACIFIC COAST
WOULD NOT ABIDE BY ITS DECISION."  THIS OCCURRED IMMEDIATELY AFTER
COUNSEL HAD MOVED TO SET ASIDE THE JUDGMENT WHICH WAS CRITICIZED, SO
UNQUESTIONABLY THERE WAS A THREAT TO LITIGATION OBVIOUSLY ALIVE.  IT
WOULD BE INADMISSIBLE DOGMATISM FOR US TO SAY THAT IN THE CONTEXT OF
THE IMMEDIATE CASE - THE ISSUES AT STAKE, THE ENVIRONMENT IN WHICH THE
JUDGE, THE PETITIONER AND THE COMMUNITY WERE MOVING, THE PUBLICATION
HERE MADE, AT THE TIME AND IN THE MANNER IT WAS MADE - THIS COULD NOT
HAVE DOMINATED THE MIND OF THE JUDGE BEFORE WHOM THE MATTER WAS
PENDING.  HERE TOO THE STATE COURT'S JUDGMENT SHOULD NOT BE
OVERTURNED. 

THE FACT THAT THE COMMUNICATION TO THE SECRETARY OF LABOR MAY HAVE
BEEN PRIVILEGED DOES NOT CONSTITUTIONALLY PROTECT WHATEVER EXTRANEOUS
USE MAY HAVE BEEN MADE OF THE COMMUNICATION.  IT IS SAID THAT THE
POSSIBILITY OF A STRIKE, IN CASE OF AN ADVERSE RULING, MUST IN ANY
EVENT HAVE SUGGESTED ITSELF TO THE PRIVATE THOUGHTS OF A SOPHISTICATED
JUDGE.  THEREFORE THE PUBLICATION OF THE BRIDGES TELEGRAM, WE ARE TOLD,
MERELY GAVE THAT POSSIBILITY PUBLIC EXPRESSION.  TO AFFORD
CONSTITUTIONAL SHELTER FOR A DEFINITE ATTEMPT AT COERCING A COURT INTO
A FAVORABLE DECISION BECAUSE OF THE CONTINGENCIES OF FRUSTRATION TO
WHICH ALL JUDICIAL ACTION IS SUBJECT, IS TO HOLD, IN EFFECT, THAT THE
CONSTITUTION SUBORDINATES THE JUDICIAL SETTLEMENT OF CONFLICTS TO THE
UNFETTERED INDULGENCE OF VIOLENT SPEECH.  THE MERE FACT THAT AFTER AN
UNFAVORABLE DECISION MEN MAY, UPON FULL CONSIDERATION OF THEIR
RESPONSIBILITIES AS WELL AS THEIR RIGHTS, ENGAGE IN A STRIKE OR A
LOCKOUT, IS A POOR REASON FOR DENYING A STATE THE POWER TO PROTECT ITS
COURTS FROM BEING BLUDGEONED BY SERIOUS THREATS WHILE A DECISION IS
HANGING IN THE JUDICIAL BALANCE.  A VAGUE, UNDETERMINED POSSIBILITY
THAT A DECISION OF A COURT MAY LEAD TO A SERIOUS MANIFESTATION OF
PROTEST IS ONE THING.  THE IMPACT OF A DEFINITE THREAT OF ACTION TO
PREVENT A DECISION IS A WHOLLY DIFFERENT MATTER.  TO DENY SUCH
REALITIES IS TO STULTIFY LAW.  RIGHTS MUST BE JUDGED IN THEIR CONTEXT
AND NOT IN VACUO.  COMPARE AIKENS V. WISCONSIN, 195 U.S. 194, 205;
BADDERS V. UNITED STATES, 240 U.S. 391, 393-94; AMERICAN BANK & TRUST
CO. V. FEDERAL BANK, 256 U.S. 350, 358.  "ALL RIGHTS ARE DERIVED FROM
THE PURPOSES OF THE SOCIETY IN WHICH THEY EXIST; ABOVE ALL RIGHTS RISES
DUTY TO THE COMMUNITY."  MR. JUSTICE BRANDEIS IN DUPLEX CO. V. DEERING,
254 U.S. 443, 488. 

THE QUESTION CONCERNING THE NARROW POWER WE RECOGNIZE ALWAYS IS - WAS
THERE A REAL AND SUBSTANTIAL THREAT TO THE IMPARTIAL DECISION BY A
COURT OF A CASE ACTIVELY PENDING BEFORE IT?  THE THREAT MUST BE CLOSE
AND DIRECT; IT MUST BE DIRECTED TOWARDS A PARTICULAR LITIGATION.  THE
LITIGATION MUST BE IMMEDIATELY PENDING.  WHEN A CASE IS PENDING IS NOT
A TECHNICAL, LAWYER'S PROBLEM, BUT IS TO BE DETERMINED BY THE
SUBSTANTIAL REALITIES OF THE SPECIFIC SITUATION.  FN8 DANGER OF
UNBRIDLED EXERCISE OF JUDICIAL POWER BECAUSE OF IMMUNITY FROM SPEECH
WHICH IS COERCING IS A FIGMENT OF GROUNDLESS FEARS.  IN ADDITION TO THE
INTERNAL CENSOR OF CONSCIENCE, PROFESSIONAL STANDARDS, THE JUDGMENT OF
FELLOW JUDGES AND THE BAR, THE POPULAR JUDGMENT EXERCISED IN ELECTIONS,
THE POWER OF APPELLATE COURTS, INCLUDING THIS COURT, THERE IS THE
CORRECTIVE POWER OF THE PRESS AND OF PUBLIC COMMENT FREE TO ASSERT
ITSELF FULLY IMMEDIATELY UPON COMPLETION OF JUDICIAL CONDUCT. BECAUSE
COURTS, LIKE OTHER AGENCIES, MAY AT TIMES EXERCISE POWER ARBITRARILY
AND HAVE DONE SO, RESORT TO THIS COURT IS OPEN TO DETERMINE WHETHER,
UNDER THE GUISE OF PROTECTING IMPARTIALITY IN SPECIFIC LITIGATION,
ENCROACHMENTS HAVE BEEN MADE UPON THE LIBERTIES OF SPEECH AND PRESS. 
BUT INSTANCES OF PAST ARBITRARINESS AFFORD NO JUSTIFICATION FOR
REVERSING THE COURSE OF HISTORY AND DENYING THE STATES POWER TO
CONTINUE TO USE TIME-HONORED SAFEGUARDS TO ASSURE UNBULLIED
ADJUDICATIONS.  ALL EXPERIENCE JUSTIFIES THE STATES IN ACTING UPON THE
CONVICTION THAT A WRONG DECISION IN A PARTICULAR CASE MAY BEST BE
FORESTALLED OR CORRECTED BY MORE RATIONAL MEANS THAN COERCIVE INTRUSION
FROM OUTSIDE THE JUDICIAL PROCESS. 

SINCE COURTS, ALTHOUGH REPRESENTING THE LAW, UNITED STATES V. SHIPP,
203 U.S. 563, 574, ARE ALSO SITTING IN JUDGMENT, AS IT WERE, ON THEIR
OWN FUNCTION IN EXERCISING THEIR POWER TO PUNISH FOR CONTEMPT, IT
SHOULD BE USED ONLY IN FLAGRANT CASES AND WITH THE UTMOST FORBEARANCE. 
IT IS ALWAYS BETTER TO ERR ON THE SIDE OF TOLERANCE AND EVEN OF
DISDAINFUL INDIFFERENCE. 

NO OBJECTIONS WERE MADE BEFORE US TO THE PROCEDURE BY WHICH THE
CHARGES OF CONTEMPT WERE TRIED.  BUT IT IS PROPER TO POINT OUT THAT
NEITHER CASE WAS TRIED BY A JUDGE WHO HAD PARTICIPATED IN THE TRIALS TO
WHICH THE PUBLICATIONS REFERRED.  COMPARE COOKE V. UNITED STATES, 267
U.S. 517, 539.  SO IT IS CLEAR THAT A DISINTERESTED TRIBUNAL WAS
FURNISHED, AND SINCE THE CONSTITUTION DOES NOT REQUIRE A STATE TO
FURNISH JURY TRIALS, MAXWELL V. DOW, 176 U.S. 581; PALKO V.
CONNECTICUT, 302 U.S. 319, 324, AND STATES HAVE DISCRETION IN
FASHIONING CRIMINAL REMEDIES, TIGNER V. TEXAS, 310 U.S. 141, THE
SITUATION HERE IS THE SAME AS THOUGH A STATE HAD MADE IT A CRIME TO
PUBLISH UTTERANCE HAVING A "REASONABLE TENDENCY TO INTERFERE WITH THE
ORDERLY ADMINISTRATION OF JUSTICE IN PENDING ACTIONS," AND NOT
DISSIMILAR FROM WHAT THE UNITED STATES HAS DONE IN SEC. 135 OF THE
CRIMINAL CODE.  FN9 

FN1  "CERTAIN IMPLIED POWERS MUST NECESSARILY RESULT TO OUR COURTS OF
JUSTICE FROM THE NATURE OF THEIR INSTITUTION.  ...  TO FINE FOR
CONTEMPT - IMPRISON FOR CONTUMACY - INFORCE THE OBSERVANCE OF ORDER,
&C. ARE POWERS WHICH CANNOT BE DISPENSED WITH IN A COURT, BECAUSE THEY
ARE NECESSARY TO THE EXERCISE OF ALL OTHERS."  UNITED STATES V. HUDSON,
7 CRANCH 32, 34(1812). 

"THAT 'THE SAFETY OF THE PEOPLE IS THE SUPREME LAW,' NOT ONLY
COMPORTS WITH, BUT IS INDISPENSABLE TO, THE EXERCISE OF THOSE POWERS IN
THEIR PUBLIC FUNCTIONARIES, WITHOUT WHICH THAT SAFETY CANNOT BE
GUARDED.  ON THIS PRINCIPLE IT IS, THAT COURTS OF JUSTICE ARE
UNIVERSALLY ACKNOWLEDGED TO BE VESTED, BY THEIR VERY CREATION, WITH
POWER TO IMPOSE SILENCE, RESPECT, AND DECORUM, IN THEIR PRESENCE, AND
SUBMISSION TO THEIR LAWFUL MANDATES, AND, AS A COROLLARY TO THIS
PROPOSITION, TO PRESERVE THEMSELVES AND THEIR OFFICERS FROM THE
APPROACH AND INSULTS OF POLLUTION. 

"IT IS TRUE, THAT THE COURTS OF JUSTICE OF THE UNITED STATES ARE
VESTED, BY EXPRESS STATUTE PROVISION, WITH POWER TO FINE AND IMPRISON
FOR CONTEMPTS; BUT IT DOES NOT FOLLOW, FROM THIS CIRCUMSTANCE, THAT
THEY WOULD NOT HAVE EXERCISED THAT POWER WITHOUT THE AID OF THE
STATUTE, OR NOT, IN CASES, IF SUCH SHOULD OCCUR, TO WHICH SUCH STATUTE
PROVISION MAY NOT EXTEND; ON THE CONTRARY, IT IS A LEGISLATIVE
ASSERTION OF THIS RIGHT, AS INCIDENTAL TO A GRANT OF JUDICIAL POWER,
AND CAN ONLY BE CONSIDERED EITHER AS AN INSTANCE OF ABUNDANT CAUTION,
OR A LEGISLATIVE DECLARATION, THAT THE POWER OF PUNISHING FOR CONTEMPT
SHALL NOT EXTEND BEYOND ITS KNOWN AND ACKNOWLEDGED LIMITS OF FINE AND
IMPRISONMENT."  ANDERSON V. DUNN, 6 WHEAT.  204, 227-28(1821). 

"THE POWER TO PUNISH FOR CONTEMPTS IS INHERENT IN ALL COURTS; ITS
EXISTENCE IS ESSENTIAL TO THE PRESERVATION OF ORDER IN JUDICIAL
PROCEEDINGS, AND TO THE ENFORCEMENT OF THE JUDGMENTS, ORDERS, AND WRITS
OF THE COURTS, AND CONSEQUENTLY TO THE DUE ADMINISTRATION OF JUSTICE. 
THE MOMENT THE COURTS OF THE UNITED STATES WERE CALLED INTO EXISTENCE
AND INVESTED WITH JURISDICTION OVER ANY SUBJECT, THEY BECAME POSSESSED
OF THIS POWER."  EX PARTE ROBINSON, 19 WALL.  505, 510(1874). 

"THE ACT OF 1789 DID NOT DEFINE WHAT WERE CONTEMPTS OF THE AUTHORITY
OF THE COURTS OF THE UNITED STATES, IN ANY CAUSE OR HEARING BEFORE
THEM, NOR DID IT PRESCRIBE ANY SPECIAL PROCEDURE FOR DETERMINING A
MATTER OF CONTEMPT.  UNDER THAT STATUTE THE QUESTION WHETHER PARTICULAR
ACTS CONSTITUTED A CONTEMPT, AS WELL AS THE MODE OF PROCEEDING AGAINST
THE OFFENDER, WAS LEFT TO BE DETERMINED ACCORDING TO SUCH ESTABLISHED
RULES AND PRINCIPLES OF THE COMMON LAW AS WERE APPLICABLE TO OUR
SITUATION."  SAVIN, PETITIONER, 131 U.S. 267, 275-76(1889). 

FN2  FOR THE HISTORY LEADING UP TO THE PENNSYLVANIA LEGISLATION, SEE
RESPUBLICA V. OSWALD, 1 DALL.  319(1788), PARTICULARLY NOTE BEGINNING
AT P. 329; RESPUBLICA V. PASSMORE, 3 YEATES (PA.)  441; HAMILTON,
REPORT OF THE TRIAL AND ACQUITTAL OF JUSTICES OF THE SUPREME COURT OF
PENNSYLVANIA (1805).  CF. HOLLINGSWORTH V. DUANE, WALL.  SR. 77, FED.
CAS. NO. 6616; UNITED STATES V. DUANE, WALL.  SR. 102, FED. CAS. NO.
14997. 

FN3  THE CHARGE AGAINST JUDGE PECK WAS THAT HE PUNISHED COUNSEL FOR
CONTEMPT AFTER THE FINAL DECREE OF THE PARTICULAR LITIGATION HAD BEEN
RENDERED AND THE NECESSARY STEPS FOR AN APPEAL HAD BEEN TAKEN, AND
AFTER THE JUDGE HAD PUBLISHED HIS OPINION IN A NEWSPAPER AND PLAINTIFF
IN REPLY HAD SUBMITTED TO THE PUBLIC "A CONCISE STATEMENT OF SOME OF
THE PRINCIPAL ERRORS INTO WHICH YOUR PETITIONER (THE ACCUSED COUNSEL)
HAD FALLEN."  STANSBURY, REPORT OF THE TRIAL OF JAMES H. PECK (1833). 
IN VIEW OF THEIR IMMEDIATE PROFESSIONAL RESPONSIBILITY, THE EMINENT
LAWYERS WHO HAD CHARGE OF THE IMPEACHMENT PROCEEDINGS AGAINST JUDGE
PECK WOULD NATURALLY TAKE THE LEAST TOLERANT VIEW OF THE POWER OF
COURTS TO PUNISH FOR CONTEMPT.  YET ALL THE MANAGERS OF THE HOUSE OF
REPRESENTATIVES (JAMES BUCHANAN OF PENNSYLVANIA, GEORGE E. MCDUFFIE OF
SOUTH CAROLINA, AMBROSE SPENCER AND HENRY STORRS OF NEW YORK, CHARLES
E. WICKLIFFE OF KENTUCKY) ACKNOWLEDGED THE HISTORIC POWER TO PUNISH
INTERFERENCES CALCULATED TO OBSTRUCT THE EXERCISE OF THE JUDICIAL
FUNCTION IN A PENDING CAUSE.  THEY DID SO SUBSTANTIALLY IN THE TERMS
NOW HERE CHALLENGED.  IBID., PP. 91, 291, 293, 382, 400.  THE FOLLOWING
FROM MR. STORRS' ARGUMENT IS A FAIR SAMPLE: 

"THE LAW OF CONTEMPTS, WHEN CONFINED TO THE PROTECTION OF THE COURTS
IN THEIR PROPER CONSTITUTIONAL ACTION AND DUTIES, AND TO THE PUNISHMENT
OF EVERY DIRECT OR INDIRECT INTERFERENCE WITH THE EXERCISE OF THEIR
POWERS AND THE PROTECTION OF THOSE WHO ARE CONCERNED IN THEM AS
PARTIES, JURORS, WITNESSES AND OFFICERS OF JUSTICE IN AID OF THE
ADMINISTRATION OF THEIR FUNCTIONS, WAS TOO WELL ESTABLISHED AND TOO
WELL SUSTAINED BY PRINCIPLE AS WELL AS POSITIVE LAW, TO BE DOUBTED OR
DISTURBED; AND, CONFINED TO ITS PROPER LIMITS, ADMITTED OF ALL
REASONABLE CERTAINTY IN ITS DEFINITIONS OF CRIME.  BUT IF EXTENDED TO
THE CASE OF GENERAL LIBEL, THERE WAS NO SECURITY FOR PERSONAL LIBERTY
BUT THE DISCRETION OR FEELING OF A JUDGE."  IBID., P. 400. 

FN4  IT IS RELEVANT TO ADD THAT THIS EXPRESSED THE VIEW OF MR.
JUSTICE HOLMES AND MR. JUSTICE BRANDEIS WHOSE OPINIONS HAVE HAD SUCH A
POWERFUL INFLUENCE IN PRESSING THE DUE PROCESS CLAUSE TO THE SERVICE OF
FREEDOM OF SPEECH AND OF THE PRESS.  IN TWO EARLIER CASES OF SUMMARY
PUNISHMENT FOR CONTEMPT THEY STRONGLY DISSENTED BECAUSE THEY FOUND THAT
THE LIMITS SET BY THE ACT OF 1831 HAD BEEN EXCEEDED.  TOLEDO NEWSPAPER
CO. V. UNITED STATES, 247 U.S. 402, AND CRAIG V. HECHT, 263 U.S. 255. 
BUT IN NEITHER CASE DID THEY SUGGEST ANY CONSTITUTIONAL DIFFICULTY IN
THE EXERCISE OF THE CONTEMPT POWER ARISING FROM THE PROHIBITION OF THE
FIRST AMENDMENT. 

FN5  SEE THE LINCOLN DAY, 1898, ADDRESS OF MR. JUSTICE BREWER,
GOVERNMENT BY INJUNCTION, 15 NAT. CORP. REP. 848, 849:  "IT IS A
MISTAKE TO SUPPOSE THAT THE SUPREME COURT IS EITHER HONORED OR HELPED
BY BEING SPOKEN OF AS BEYOND CRITICISM.  ON THE CONTRARY, THE LIFE AND
CHARACTER OF ITS JUSTICES SHOULD BE THE OBJECTS OF CONSTANT
WATCHFULNESS BY ALL, AND ITS JUDGMENTS SUBJECT TO THE FREEST
CRITICISM.  THE TIME IS PAST IN THE HISTORY OF THE WORLD WHEN ANY
LIVING MAN OR BODY OF MEN CAN BE SET ON A PEDESTAL AND DECORATED WITH A
HALO.  TRUE, MANY CRITICISMS MAY BE, LIKE THEIR AUTHORS, DEVOID OF GOOD
TASTE, BUT BETTER ALL SORTS OF CRITICISM THAN NO CRITICISM AT ALL.  THE
MOVING WATERS ARE FULL OF LIFE AND HEALTH; ONLY IN THE STILL WATERS IS
STAGNATION AND DEATH." 

FN6  "IT IS MOST IMPORTANT THAT THE ADMINISTRATION OF JUSTICE IN THIS
COUNTRY SHOULD NOT BE HAMPERED AS IT IS HAMPERED IN SOME OTHER
COUNTRIES, AND IT IS NOT ENLARGING THE JURISDICTION OF THIS COURT - IT
IS REFUSING TO NARROW THE JURISDICTION OF THIS COURT - WHEN WE SAY THAT
WE ARE DETERMINED WHILE WE ARE HERE TO DO NOTHING TO SUBSTITUTE IN THIS
COUNTRY TRIAL BY NEWSPAPER FOR TRIAL BY JURY; AND THOSE WHO ATTEMPT TO
INTRODUCE THAT SYSTEM IN THIS COUNTRY, EVEN IN ITS FIRST BEGINNINGS,
MUST BE PREPARED TO SUFFER FOR IT.  PROBABLY THE PROPER PUNISHMENT -
AND IT IS ONE WHICH THIS COURT MAY YET HAVE TO AWARD IF THE PUNISHMENT
WE ARE ABOUT TO AWARD PROVES INSUFFICIENT - WILL BE IMPRISONMENT IN
CASES OF THIS KIND.  THERE IS NO QUESTION ABOUT THAT, BECAUSE WE CANNOT
SHUT OUR EYES TO THE FACT THAT NEWSPAPERS ARE OWNED BY WEALTHY PEOPLE,
AND IT MAY EVEN HAPPEN THAT THEY WILL TAKE THE CHANCES OF THE FINE AND
PAY IT CHEERFULLY AND WILL NOT FEEL THAT THEY HAVE THEN PAID TOO MUCH
FOR THE ADVERTISEMENT."  REX V. CLARKE, 103 L.T.R. (N.S.)  636, 640. 

FN7  THUS, IN ENGLAND, THE "THIRD DEGREE" NEVER GAINED A FOOTHOLD,
AND ITS EMERGENCE WAS IMPRESSIVELY RESISTED LONG BEFORE IT WAS OUTLAWED
HERE.  SEE 217 PARL.  DEB.  (COMMONS) COLS.  1303 ET SEQ.  (MAY 17,
1928); INQUIRY IN REGARD TO THE INTERROGATION BY THE POLICE OF MISS
SAVIDGE, CMD.  3147(1928); REPORT OF THE ROYAL COMMISSION ON POLICE
POWERS AND PROCEDURE, CMD.  3297(1929). 

FN8  THE PRESENT CASES ARE VERY DIFFERENT FROM THE SITUATION THAT
EVOKED DISSENT IN CRAIG V. HECHT, 263 U.S. 255, 281:  "IT IS NOT ENOUGH
THAT SOMEBODY MAY HEREAFTER MOVE TO HAVE SOMETHING DONE.  THERE WAS
NOTHING THEN AWAITING DECISION WHEN THE PETITIONER'S LETTER WAS
PUBLISHED."  AND SEE GLASGOW CORPORATION V. HEDDERWICK & SONS (1918)
SESS. CAS. 639.  COMPARE STATE EX REL. PULITZER PUB. CO. V. COLEMAN,
152 S.W.2D 640(MO. 1941). 

FN9  35 STAT. 1113, 18 U.S.C. SEC. 241.  "WHOEVER CORRUPTLY, OR BY
THREATS OR FORCE, OR BY ANY THREATENING LETTER OR COMMUNICATION, SHALL
ENDEAVOR TO INFLUENCE, INTIMIDATE, OR IMPEDE ANY WITNESS, IN ANY COURT
OF THE UNITED STATES OR BEFORE ANY UNITED STATES COMMISSIONER OR
OFFICER ACTING AS SUCH COMMISSIONER, OR ANY GRAND OR PETIT JUROR, OR
OFFICER IN OR OF ANY COURT OF THE UNITED STATES, OR OFFICER WHO MAY BE
SERVING AT ANY EXAMINATION OR OTHER PROCEEDING BEFORE ANY UNITED STATES
COMMISSIONER OR OFFICER ACTING AS SUCH COMMISSIONER, IN THE DISCHARGE
OF HIS DUTY, OR WHO CORRUPTLY OR BY THREATS OR FORCE, OR BY ANY
THREATENING LETTER OR COMMUNICATION, SHALL INFLUENCE, OBSTRUCT, OR
IMPEDE, OR ENDEAVOR TO INFLUENCE, OBSTRUCT, OR IMPEDE, THE DUE
ADMINISTRATION OF JUSTICE THEREIN, SHALL BE FINED NOT MORE THAN ONE
THOUSAND DOLLARS, OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 
..END :


















PIERCE V. UNITED STATES, 314 U.S. 306 


NO. 36.  ARGUED NOVEMBER 14, 17, 1941.  - DECIDED DECEMBER 8, 1941.  -
115 F.2D 399, REVERSED. 


FRAUDULENTLY IMPERSONATING AN OFFICER OR EMPLOYEE OF A CORPORATION
OWNED OR CONTROLLED BY THE UNITED STATES WAS NOT AN OFFENSE UNDER SEC.
32 OF THE CRIMINAL CODE, PRIOR TO ITS AMENDMENT BY THE ACT OF FEBRUARY
28, 1938.  P. 310. 

PIERCE V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 313 U.S. 552, TO REVIEW THE AFFIRMANCE OF A CONVICTION
UNDER AN INDICTMENT FOR VIOLATION OF SEC. 32 OF THE CRIMINAL CODE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED UNDER AN INDICTMENT CHARGING VIOLATION OF
SEC. 32 OF THE CRIMINAL CODE.  AT THE TIME OF THE ALLEGED OFFENSE IT
READ AS FOLLOWS: 

"WHOEVER, WITH INTENT TO DEFRAUD EITHER THE UNITED STATES OR ANY
PERSON, SHALL FALSELY ASSUME OR PRETEND TO BE AN OFFICER OR EMPLOYEE
ACTING UNDER THE AUTHORITY OF THE UNITED STATES, OR ANY DEPARTMENT, OR
ANY OFFICER OF THE GOVERNMENT THEREOF, AND SHALL TAKE UPON HIMSELF TO
ACT AS SUCH, OR SHALL IN SUCH PRETENDED CHARACTER DEMAND OR OBTAIN FROM
ANY PERSON OR FROM THE UNITED STATES, OR ANY DEPARTMENT, OR ANY OFFICER
OF THE GOVERNMENT THEREOF, ANY MONEY, PAPER, DOCUMENT, OR OTHER
VALUABLE THING, SHALL BE FINED NOT MORE THAN ONE THOUSAND DOLLARS, OR
IMPRISONED NOT MORE THAN THREE YEARS, OR BOTH."  35 STAT. 1095; 18
U.S.C. SEC. 76. 

THE CONVICTION WAS AFFIRMED, 115 F.2D 399, AND CERTIORARI GRANTED,
313 U.S. 552, ON ACCOUNT OF PETITIONER'S HERETOFORE UNDECIDED
CONTENTION OF MANIFEST ERROR IN THE TRIAL COURT'S REFUSAL OF AN
INSTRUCTION THAT THE STATUTE DID NOT INCLUDE WITHIN ITS SCOPE FALSE
PERSONATION OF OFFICERS OR EMPLOYEES OF A GOVERNMENT CORPORATION, I.E.,
THE TENNESSEE VALLEY AUTHORITY (TVA). 

THE SECTION HAS BEEN UPON THE STATUTE BOOKS SINCE APRIL 18, 1884.  23
STAT. 11.  IT WAS PASSED BECAUSE OF REPORTS TO CONGRESS, BY THE PENSION
OFFICE, OF FRAUDULENT PRACTICES AFFECTING PENSION CLAIMANTS.  THERE IS
NOTHING IN THE LEGISLATIVE HISTORY WHICH THROWS ANY LIGHT ON THE
PROBLEM POSED.  FN1  NOR DO WE FIND ANY FRUITFUL COMMENTS IN THE
VARIOUS REPORTS PRELIMINARY TO THE ENACTMENT OF THE CRIMINAL CODE,
WHICH ADOPTED THE ORIGINAL LANGUAGE WITHOUT SIGNIFICANT CHANGE.  FN2
SUBSEQUENTLY TO THE ACTS FORMING THE BASIS OF THE RESPECTIVE COUNTS OF
THE INDICTMENT, THE SECTION WAS AMENDED TO INCLUDE PRETENDING TO BE AN
OFFICER OR EMPLOYEE "OF ANY CORPORATION OWNED OR CONTROLLED BY THE
UNITED STATES."  ACT OF FEB. 28, 1938, C. 37, 52 STAT. 82. 

THE COUNTS OF THE INDICTMENT WHICH WERE SUBMITTED TO THE JURY CHARGED
THE DEFENDANT WITH FALSELY PRETENDING TO BE AN OFFICER "OF THE UNITED
STATES, TO WIT, (A REPRESENTATIVE) OF THE GOVERNMENT SELLING T.V.A
UNITS" THEN AND THERE TAKING UPON HIMSELF TO ACT AS SUCH OFFICER WITH
INTENT TO DEFRAUD SEPARATE INDIVIDUALS NAMED IN THE COUNTS OR WITH
OBTAINING FROM THE NAMED INDIVIDUALS STATED SUMS OF MONEY WITH INTENT
TO DEFRAUD.  THE INDICTMENT STATES CRIMES UNDER THE STATUTE. 

ON THE TRIAL IT WAS STIPULATED THAT PETITIONER WAS NOT AT ANY TIME AN
AGENT, EMPLOYEE OR REPRESENTATIVE OF THE GOVERNMENT, OR ANY DEPARTMENT
THEREOF, OR OF THE TVA.  IT WAS SHOWN THAT TVA WAS A GOVERNMENT
CORPORATION AND THAT IT ISSUED NO STOCK OR UNITS FOR SALE.  THE
EVIDENCE FURTHER SHOWED PETITIONER WAS EDITOR AND VICE PRESIDENT OF A
NEWSPAPER, THE HUNTSVILLE (ALABAMA) DAILY REGISTER, AND THAT THE
REPRESENTATIONS OCCURRED DURING "A COMMUNITY PUBLICITY ADVERTISING"
CAMPAIGN.  HE CARRIED A LETTER FROM HIS PAPER INTRODUCING AND
IDENTIFYING HIM AS ENGAGED IN GETTING OUT "THE MUSCLE SHOALS SERIES OF
PAGE NEWSPAPER ADVERTISEMENTS," AND CARRIED A BUNDLE OF THE OLD ISSUES
OF THE PAPER AS DEMONSTRATIONS OF THE PUBLICITY ASSISTANCE TO BE GIVEN
THE TVA.  THE TVA UNITS WERE PARTICIPATIONS IN THE COST OF THE PAGE
ADVERTISEMENTS IN THE DAILY REGISTER, TELLING OF THE TVA BENEFITS TO
THE COMMUNITY, WHICH COST THE VICTIMS OF THE ALLEGED SWINDLE $10 EACH. 
THOSE WHO PURCHASED BY CASH OR CHECK RECEIVED ON THE SPOT RECEIPTS OF
THE DAILY REGISTER, SIGNED BY PETITIONER, FOR THE ADVERTISING COST
PAID.  THE WIDE PUBLICITY OBTAINED FROM THE CONSTRUCTION OF THE TVA
FLOOD AND POWER PROJECT HAD PREPARED THE WAY FOR EASY ACCEPTANCE OF THE
SCHEME BY THE CREDULOUS.  SOME SUBSCRIBERS TO THE UNITS, WHO FELT THEY
HAD BEEN DUPED BY THE SALESMAN, TESTIFIED TO THE CIRCUMSTANCES OF THEIR
FLEECING ON THE OCCASIONS SPECIFIED IN THE INDICTMENT.  THEIR EVIDENCE
SHOWED TO THE SATISFACTION OF THE JURY THAT PIERCE, TAKING UPON HIMSELF
TO ACT AS A GOVERNMENT EMPLOYEE, SAID OR GAVE THEM THE IMPRESSION THAT
HE REPRESENTED THE GOVERNMENT, THAT THE GOVERNMENT WAS CONTRIBUTING TO
THE COST OF THE ADVERTISING FOR THE DEVELOPMENT OF TVA, AND THAT, AS
ONE WITNESS PHRASED IT, THE PURPOSE WAS "JUST THE ADVANCEMENT OF TVA IN
OUR COUNTRY."  ANOTHER WITNESS TESTIFIED "IT NEVER DAWNED ON ME THAT IT
WAS A PERSONALLY OWNED NEWSPAPER." 

ALL THE COUNTS INCLUDED A CHARGE OF IMPERSONATION OF A REPRESENTATIVE
OF THE UNITED STATES "SELLING TVA UNITS."  THE EVIDENCE, AS TO SOME,
WAS THAT PIERCE SAID HE REPRESENTED TVA; AS TO OTHERS, IT WAS THAT HE
REPRESENTED THE GOVERNMENT SELLING TVA OR TVA UNITS.  IN NO INSTANCE IS
THERE TESTIMONY THAT PIERCE REPRESENTED HIMSELF AS AN EMPLOYEE OR
OFFICER OF THE UNITED STATES UNCONNECTED WITH THE PUBLIC ENTERPRISE OF
THE TVA AT MUSCLE SHOALS.  THE INSTRUCTIONS FOLLOWED THE CHARGES AND
EVIDENCE.  THEY MADE CLEAR THAT THE CHARGES AGAINST PIERCE WERE FOR
FALSE IMPERSONATION BY ASSUMING TO ACT AS AN OFFICER OR EMPLOYEE OF THE
UNITED STATES WITH FRAUDULENT INTENT, AND NOT SIMPLY FOR OBTAINING
MONEY BY FALSE PRETENSES OR FALSE CLAIM OF STIMULATING THE TENNESSEE
VALLEY DEVELOPMENT.  THE INSTRUCTIONS REPEATED, WITH MANY VARIATIONS,
THE THOUGHT THAT PIERCE MUST HAVE ACTUALLY AND INTENTIONALLY
REPRESENTED HIMSELF OR ASSUMED TO BE AN OFFICER OF THE UNITED STATES,
ACTING UNDER ITS AUTHORITY.  REFERENCES WERE MADE TO TVA.  IT WAS SAID
DEFENDANT WAS SELLING OR ATTEMPTING TO SELL TVA UNITS.  IT WAS FURTHER
POINTED OUT THAT THE MENTION OF TVA IN THE COPIES OF THE DAILY REGISTER
WHICH WERE EXHIBITED "BY THE DEFENDANT TO ANY PERSON, FROM WHOM FUNDS
WERE SOLICITED, AND IN THE SALES TALKS MADE BY HIM TO SUCH PERSON
SHOULD NOT BE CONSIDERED BY YOU AS EVIDENCE OF A FALSE CLAIM OR
PRETENSE OF FEDERAL AUTHORITY ON THE PART OF THE DEFENDANT, PIERCE,
UNLESS YOU FURTHER FIND AND ARE SATISFIED FROM THE PROOF, BEYOND A
REASONABLE DOUBT, THAT SUCH REFERENCE TO TVA, IN EITHER THE NEWSPAPERS
OR SALES TALKS, WERE MADE BY THE DEFENDANT WITH THE INTENT OF PRODUCING
A BELIEF ON THE PART OF THE PERSON FROM WHOM FUNDS WERE SOLICITED THAT
HE, THE DEFENDANT PIERCE, WAS ACTING AS AN OFFICER OR EMPLOYEE OF THE
FEDERAL GOVERNMENT." 

THERE WAS A REFUSAL BY THE TRIAL COURT, HOWEVER, TO GIVE THE
FOLLOWING INSTRUCTION: 

"AT THE REQUEST OF THE DEFENDANT, THE COURT FURTHER INSTRUCTS THE
JURY THAT THE TENNESSEE VALLEY AUTHORITY, COMMONLY DESIGNATED AS TVA,
ALTHOUGH AN INSTRUMENTALITY OF THE FEDERAL GOVERNMENT, IS A CORPORATE
ENTITY, SEPARATE AND DISTINCT FROM THE FEDERAL GOVERNMENT ITSELF, AND
THE OFFICERS AND EMPLOYEES OF THAT CORPORATION ARE NOT WITHIN THE SCOPE
OF THE STATUTE ON WHICH THE INDICTMENT IN THIS CASE IS BASED. 
CONSEQUENTLY, ANY CLAIM OR REPRESENTATION BY THE DEFENDANT, IF YOU FIND
THAT SUCH CLAIM OR REPRESENTATION WAS MADE, THAT HE WAS REPRESENTING
THE TVA, OR WAS CONNECTED WITH THE TVA AS AN OFFICER OR EMPLOYEE, WOULD
NOT CONSTITUTE THE FALSE IMPERSONATION OF AN OFFICER OR EMPLOYEE OF THE
UNITED STATES GOVERNMENT OR ANY DEPARTMENT THEREOF, TVA OFFICERS AND
EMPLOYEES NOT BEING OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT OR
SOME DEPARTMENT THEREOF, WITHIN THE MEANING OF THE STATUTE WHICH THE
DEFENDANT IS ALLEGED TO HAVE VIOLATED, IN THE SEVERAL COUNTS OF THE
INDICTMENT." 

NOR DO WE FIND ANY COMPARABLE STATEMENT WHICH WAS GIVEN.  IN THIS
REFUSAL, WE FIND MATERIAL ERROR. 

SO CLOSELY ENTWINED WERE THE TVA AND THE GOVERNMENT (THE UNITED
STATES) IN THE INSTRUCTIONS AND THE EVIDENCE ON THE VARIOUS COUNTS THAT
ANY JURY MIGHT WELL HAVE THOUGHT A PRETENSE THAT PIERCE WAS AN EMPLOYEE
OR OFFICER OF THE TVA VIOLATED THE STATUTE, AND HAVE VOTED FOR
CONVICTION FOR THAT REASON.  THIS, HOWEVER, IN OUR VIEW, IS INCORRECT,
AND CONSTITUTES PREJUDICIAL ERROR.  CF. WARSZOWER V. UNITED STATES, 312
U.S. 342; STROMBERG V. CALIFORNIA, 283 U.S. 359; NASH V. UNITED STATES,
229 U.S. 373.  THE STATUTE IN EFFECT AT THE TIME OF THE COMMISSION OF
THE ALLEGED OFFENSES DID NOT SPEAK OF PRETENSES OF ACTING UNDER
AUTHORITY OF CORPORATIONS OWNED OR CONTROLLED BY THE UNITED STATES.  IT
WAS PASSED IN 1884 BEFORE THE UNITED STATES OWNED OR CONTROLLED
CORPORATIONS OPERATING HOTELS, BOAT LINES, OR GENERATING PLANTS.  THE
AMENDMENTS, SUBSEQUENT TO THE OCCASIONS FIXED BY THE INDICTMENT,
EXTENDED ITS SCOPE FIRST TO THE HOME OWNERS' LOAN CORPORATION, 49 STAT.
298, AND LATER TO ALL CORPORATIONS OWNED OR CONTROLLED BY THE UNITED
STATES, 52 STAT. 82.  FN3  THESE LEGISLATIVE EXTENSIONS OF THE SCOPE OF
THE ACT WERE IN ACCORD WITH THE GROWING IMPORTANCE OF THE
ADMINISTRATIVE CORPORATION, BUT A COMPARABLE JUDICIAL ENLARGEMENT OF A
CRIMINAL ACT BY INTERPRETATION IS AT WAR WITH A FUNDAMENTAL CONCEPT OF
THE COMMON LAW THAT CRIMES MUST BE DEFINED WITH APPROPRIATE
DEFINITENESS.  CF. LANZETTA V. NEW JERSEY, 306 U.S. 451, AND CASES
CITED.  WHILE THE ACT SHOULD BE INTERPRETED "SO AS  ...  TO GIVE FULL
EFFECT TO ITS PLAIN TERMS," LAMAR V. UNITED STATES, 241 U.S. 103, 112;
UNITED STATES V. BARNOW, 239 U.S. 74, WE SHOULD NOT DEPART FROM ITS
WORDS AND CONTEXT.  ANOTHER SECTION OF THE CRIMINAL CODE (SEC. 35) WAS
AMENDED TO MEET THE NEW DEVELOPMENT, BY THE ACT OF OCTOBER 23, 1918, 40
STAT. 1015.  CF. UNITED STATES V. STRANG, 254 U.S. 491.  THE TVA ACT
MADE CERTAIN FEDERAL PENAL STATUTES APPLICABLE TO THE AUTHORITY BUT
POINTEDLY OMITTED SEC. 32.  FN4  THIS POINTED OMISSION IS INDICATIVE OF
INTENTION. 

PREVIOUS CASES AS TO IDENTITY BETWEEN THE GOVERNMENT AND ITS
CORPORATIONS TURNED ON CONSIDERATIONS NOT HERE APPLICABLE.  IN
EMERGENCY FLEET CORP. V. WESTERN UNION, 275 U.S. 415, 426, THE
CORPORATION WAS HELD A DEPARTMENT OF THE GOVERNMENT WITHIN THE MEANING
OF THE POST ROADS ACT AND SO ENTITLED TO LOWER TELEGRAPH RATES THAN
PRIVATE CORPORATIONS.  AN INDICTMENT UNDER CRIMINAL CODE SEC. 37 FOR A
CONSPIRACY TO DEFRAUD THE UNITED STATES "IN ANY MANNER" WAS HELD TO
STATE A CRIME WHEN THE CONTEMPLATED FRAUD WAS UPON THE UNITED STATES
EMERGENCY FLEET CORPORATION.  UNITED STATES V. WALTER, 263 U.S. 15,
17.  BUT THIS DECISION IS BOTTOMED ON THE BROAD GROUND THAT FRAUD WHICH
INTERFERES WITH THE SUCCESSFUL OPERATION OF THE GOVERNMENT IS WITHIN
THE STATUTE.  HAAS V. HENKEL, 216 U.S. 462, 479, 480.  ON THE OTHER
HAND, IN UNITED STATES V. STRANG, SUPRA, IN CONSTRUING CRIMINAL CODE
SEC. 41  FN5  THIS COURT HELD AN EMPLOYEE OF THE FLEET CORPORATION WAS
NOT AN AGENT OF THE UNITED STATES WITHIN THE TRUE INTENDMENT OF THE
DECIDING THE WALTER CASE.  THE STATUTE IN THE STRANG CASE POINTS
DIRECTLY AT A PARTICULAR CLASS OF PERSONS AS THE OBJECT OF THE
SANCTION.  IT LEAVES, AS DOES THE STATUTE HERE, NO ROOM FOR ENLARGEMENT
OF ITS MEANING.  REVERSED. 

FN1  15 CONG. REC. 1285, 2256, 2627, 2676, 48TH CONG., 1ST SESS. 

FN2  REPORT OF THE SPECIAL JOINT COMMITTEE ON REVISION OF THE LAWS,
SEN. REP. NO. 10, 60TH CONG., 1ST SESS., PART 1, P. 40; FINAL REPORT OF
THE COMMISSION TO REVISE AND CODIFY THE LAWS OF THE UNITED STATES, VOL.
1, P. 101, VOL. 2, P. 1776(1906); REPORT OF THE COMMISSION TO REVISE
AND CODIFY THE CRIMINAL LAWS OF THE UNITED STATES, SEN. DOC. NO. 68,
57TH CONG., 1ST SESS., PART 2, PP. IX AND 12, SEC. 37. 

FN3  THE REPORTS OF THE JUDICIARY COMMITTEE OF THE SENATE AND OF THE
HOUSE OF REPRESENTATIVES BEAR UPON THEIR VIEW OF THE PROPER
INTERPRETATION OF THE ACT IN ITS ORIGINAL FORM.  THE REPORTS
INCORPORATED THE FOLLOWING LETTER:

                           "OFFICE OF THE ATTORNEY GENERAL,

                                        WASHINGTON, D.C., MAY 7,
1937. 

HON. WILLIAM B. BANKHEAD,

 THE SPEAKER, HOUSE OF REPRESENTATIVES,

    WASHINGTON, D.C. 

MY DEAR MR. SPEAKER:  THE EXISTING LAW MAKES IT A CRIME TO
IMPERSONATE ANY OFFICER OR EMPLOYEE OF THE UNITED STATES WITH INTENT TO
DEFRAUD (CRIMINAL CODE, SEC. 32; U.S. CODE, TITLE 18, SEC. 76).  IT
SEEMS DESIRABLE TO EXTEND THE SCOPE OF THE ACT SO AS TO PENALIZE
IMPERSONATION OF OFFICERS AND EMPLOYEES OF GOVERNMENT-OWNED AND
GOVERNMENT-CONTROLLED CORPORATIONS. 

THE MAXIMUM PENALTY THAT MAY NOW BE IMPOSED FOR THE OFFENSE OF
IMPERSONATION IS IMPRISONMENT FOR A TERM OF 3 YEARS AND A FINE OF
$1,000.  IN AGGRAVATED CASES A GREATER PUNISHMENT MAY PROVE SUITABLE,
AND I SUGGEST INCREASING THE MAXIMUM PENALTY TO IMPRISONMENT FOR 5
YEARS AND A FINE OF $5,000. 

A BILL TO EFFECTUATE THIS PURPOSE IS SUBMITTED HEREWITH. 

SINCERELY YOURS,

  JOSEPH B. KEENAN,

     ACTING ATTORNEY GENERAL." 

H. REP. NO. 1763, 75TH CONG., 3D SESS.; S. REP. NO. 823, 75TH CONG.,
1ST SESS. 

FN4 MAY 18, 1933, C. 32, SEC. 21, 48 STAT. 68: 

"(A)  ALL GENERAL PENAL STATUTES RELATING TO THE LARCENY,
EMBEZZLEMENT, CONVERSION, OR TO THE IMPROPER HANDLING, RETENTION, USE,
OR DISPOSAL OF PUBLIC MONEYS OR PROPERTY OF THE UNITED STATES, SHALL
APPLY TO THE MONEYS AND PROPERTY OF THE CORPORATION AND TO MONEYS AND
PROPERTIES OF THE UNITED STATES INTRUSTED TO THE CORPORATION.    "(B)
ANY PERSON WHO, WITH INTENT TO DEFRAUD THE CORPORATION, OR TO DECEIVE
ANY DIRECTOR, OFFICER, OR EMPLOYEE OF THE CORPORATION OR ANY OFFICER OR
EMPLOYEE OF THE UNITED STATES (1) MAKES ANY FALSE ENTRY IN ANY BOOK OF
THE CORPORATION, OR (2) MAKES ANY FALSE REPORT OR STATEMENT FOR THE
CORPORATION, SHALL, UPON CONVICTION THEREOF, BE FINED NOT MORE THAN
$10,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH. 

"(C)  ANY PERSON WHO SHALL RECEIVE ANY COMPENSATION, REBATE, OR
REWARD, OR SHALL ENTER INTO ANY CONSPIRACY, COLLUSION, OR AGREEMENT,
EXPRESS OR IMPLIED, WITH INTENT TO DEFRAUD THE CORPORATION OR
WRONGFULLY AND UNLAWFULLY TO DEFEAT ITS PURPOSES, SHALL, ON CONVICTION
THEREOF, BE FINED NOT MORE THAN $5,000 OR IMPRISONED NOT MORE THAN FIVE
YEARS, OR BOTH." 

FN5  "SEC.  41.  NO OFFICER OR AGENT OF ANY CORPORATION, JOINT STOCK
COMPANY, OR ASSOCIATION, AND NO MEMBER OR AGENT OF ANY FIRM, OR PERSON
DIRECTLY OR INDIRECTLY INTERESTED IN THE PECUNIARY PROFITS OR CONTRACTS
OF SUCH CORPORATION, JOINT STOCK COMPANY, ASSOCIATION, OR FIRM, SHALL
BE EMPLOYED OR SHALL ACT AS AN OFFICER OR AGENT OF THE UNITED STATES
FOR THE TRANSACTION OF BUSINESS WITH SUCH CORPORATION, JOINT STOCK
COMPANY, ASSOCIATION, OR FIRM.  WHOEVER SHALL VIOLATE THE PROVISION OF
THIS SECTION SHALL BE FINED NOT MORE THAN TWO THOUSAND DOLLARS AND
IMPRISONED NOT MORE THAN TWO YEARS."  35 STAT. 1097; 18 U.S.C. SEC.
93. 

MR. JUSTICE DOUGLAS DISSENTS ON THE GROUND THAT A FALSE
REPRESENTATION BY THE DEFENDANT THAT HE WAS ACTING FOR THE TENNESSEE
VALLEY AUTHORITY CONSTITUTED A FALSE PRETENSE THAT HE WAS AN OFFICER OR
EMPLOYEE ACTING UNDER THE AUTHORITY OF THE UNITED STATES OR A
DEPARTMENT THEREOF, WITHIN THE MEANING OF SEC. 32 OF THE CRIMINAL
CODE. 

MR. JUSTICE BLACK AND MR. JUSTICE JACKSON TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :











AMER. SURETY CO. V. BETHLEHEM BANK, 314 U.S. 314 


NO. 29.  ARGUED NOVEMBER 12, 1941.  - DECIDED DECEMBER 8, 1941.  - 116
F.2D 75, REVERSED. 


1.  IN MAKING THE "RATABLE" DISTRIBUTION OF ASSETS OF AN INSOLVENT
NATIONAL BANK REQUIRED BY R.S. 5236, DIVIDENDS MUST BE DECLARED
PROPORTIONATELY UPON THE AMOUNTS OF ALL CLAIMS AS THEY STOOD ON THE
DATE OF INSOLVENCY.  P. 317. 

2.  WHERE A CLAIM AGAINST AN INSOLVENT NATIONAL BANK SECURED BY A
SURETY BOND IS PAID IN PART BY COLLATERAL AND BY DIVIDENDS FROM THE
ESTATE AND THE REMAINDER BY THE SURETY COMPANY, THE SURETY IS
SUBROGATED TO THE RIGHT OF THE CREDITOR IN FUTURE DIVIDENDS, AND ITS
PROPORTION OF FUTURE DIVIDENDS IS TO BE CALCULATED, NOT UPON THE BASIS
OF WHAT IT PAID, BUT UPON THE AMOUNT OF THE ORIGINAL CLAIM.  P. 318. 

AMERICAN SURETY COMPANY OF  NEW YORK V. BETHLEHEM NATIONAL BANK ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 312 U.S. 677, TO REVIEW THE REVERSAL OF A JUDGMENT OF THE
DISTRICT COURT FIXING DIVIDENDS IN THE WINDING UP OF AN INSOLVENT
NATIONAL BANK. 

THE CLAIM OF THE SURETY FOR REIMBURSEMENT FROM THE PRINCIPAL, OR FROM
THE ESTATE OF THE PRINCIPAL, MUST BE MEASURED BY THE AMOUNT PAID BY THE
SURETY UNDER THE BOND, IRRESPECTIVE OF WHETHER REIMBURSEMENT IS SOUGHT
UPON A CLAIM OF INDEMNITY OR A CLAIM OF SUBROGATION. 

THE AMOUNT OF THE PROVABLE CLAIM FOR DIVIDEND PURPOSES IS THE AMOUNT
OWING TO THE CLAIMANT BY THE BANK AS OF THE DATE OF CLOSING.  MERRILL
V. NATIONAL BANK, 173 U.S. 131, 146; WHITE V. KNOX, 111 U.S. 784, 786;
SCOTT V. ARMSTRONG, 146 U.S. 499, 511; FORT WORTH V. MCCAMEY, 93 F.2D
964, 969, CERTIORARI DENIED, 304 U.S. 571; STEELE V. RANDALL, 19 F.2D
40, 42; MCDONALD V. CHEMICAL NATIONAL BANK, 174 U.S. 610, 619;
MCCANDLESS V. DYAR, 34 F.2D 989, 991; ROSS V. LEE, 15 F.SUPP.  972,
973. 

IT WOULD BE INEQUITABLE TO THE GENERAL CREDITORS OF THE BANK TO ALLOW
THE SURETY, BY SUBROGATION OR OTHERWISE, A CLAIM, AS THE BASIS OF
DIVIDENDS, IN THE FULL AMOUNT OF THE DEPOSIT OF THE COMMONWEALTH AT THE
TIME OF THE SUSPENSION OR CLOSING OF THE BANK. 

THE DEPOSIT BALANCE TO THE CREDIT OF THE COMMONWEALTH ON THE DATE OF
THE BANK'S CLOSING WAS MORE THAN DOUBLE THE AMOUNT PERMITTED BY THE
STATE STATUTE, AND TO THE EXTENT OF THAT EXCESS WAS ILLEGAL.  A
CLAIMANT SEEKING SUBROGATION MUST ACT FAIRLY AND EQUITABLY AND BE FREE
FROM FAULT IN THE TRANSACTION IN CONNECTION WITH WHICH HE CLAIMS
SUBROGATION. 

IN BALANCING THE EQUITIES, THE GENERAL DEPOSITORS AND CREDITORS OF
THE BANK ARE ENTITLED TO HAVE THE BENEFITS OF THE SURETY BOND, RATHER
THAN TO HAVE IT WEIGHED IN THE BALANCE AGAINST THEM. 

THE SURETY BOND MUST BE CONSIDERED AS AN ASSET OF THE BANK IN
RECEIVERSHIP. 

MERRILL V. NATIONAL BANK, 173 U.S. 131, TO THE EXTENT APPLICABLE
HERE, SUPPORTS THE POSITION OF RESPONDENTS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE FACTS OF THIS CASE ARE SIMPLE.  THE COMMONWEALTH OF PENNSYLVANIA
HAD $135,000 ON DEPOSIT IN THE BETHLEHEM NATIONAL BANK.  THIS DEPOSIT
WAS SECURED BY A $125,000 BOND, UPON WHICH THE PLAINTIFF WAS SURETY,
AND BY A PLEDGE OF GOVERNMENT BONDS HAVING A PAR VALUE OF $12,000.  THE
BANK BECAME INSOLVENT, AND A RECEIVER WAS APPOINTED.  THEREAFTER, THE
COMMONWEALTH OBTAINED, IN ROUND FIGURES, $12,500 FROM THE SALE OF THE
COLLATERAL AND $54,000 AS A 40% DIVIDEND ON ITS CLAIM, A TOTAL OF
$66,500.  THE REMAINING $68,500 WAS PAID BY THE SURETY, THEREBY FULLY
SATISFYING THE COMMONWEALTH'S CLAIM.  THE PRESENT SUIT AROSE OUT OF
THREE FURTHER DIVIDENDS, OF 20%, 10%, AND 5%, RESPECTIVELY, DECLARED BY
THE RECEIVER.  THE SURETY SOUGHT DIVIDEND PAYMENTS ON THE BASIS OF THE
ORIGINAL INDEBTEDNESS, THAT IS, $135,000.  THE RECEIVER INSISTED THAT
THE EXTENT OF THE SURETY'S PARTICIPATION MUST BE MEASURED BY THE SUM
ACTUALLY EXPENDED TO DISCHARGE ITS PRINCIPAL'S OBLIGATION, TO WIT,
$68,500.  REVERSING THE DECISION OF THE DISTRICT COURT, 33 F.SUPP. 
722, THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT UPHELD THE
RECEIVER'S CONTENTION.  116 F.2D 75.  IN VIEW OF CONFLICTING
EXPRESSIONS BY THE LOWER COURTS UPON A QUESTION SO IMPORTANT IN THE
LIQUIDATION OF NATIONAL BANKS, CF. MARYLAND CASUALTY CO. V. COX, 104
F.2D 354; WARD V. FIRST NATIONAL BANK, 76 F.2D 256; FOUTS V. MARYLAND
CASUALTY CO., 30 F.2D 357, WE BROUGHT THE CASE HERE.  312 U.S. 677. 

THE NATIONAL BANK ACT PROVIDES FOR THE "RATABLE" DISTRIBUTION OF
ASSETS OF INSOLVENT NATIONAL BANKS.  R.S. SEC. 5236; 12 U.S.C. SEC.
194.  THE QUESTION FOR DECISION IS THEREFORE ONE OF FEDERAL LAW. 
DEITRICK V. GREANEY, 309 U.S. 190, 200-01; MERRILL V. NATIONAL BANK OF
JACKSONVILLE, 173 U.S. 131; DAVIS V. ELMIRA SAVINGS BANK, 161 U.S. 275;
COOK COUNTY NAT. BANK V. UNITED STATES, 107 U.S. 445, 448.  CONGRESS
HAS SEEN FIT NOT TO ANTICIPATE BY SPECIFIC RULES SOLUTION OF PROBLEMS
THAT INEVITABLY ARISE IN NATIONAL BANK LIQUIDATIONS.  INSTEAD, IT CHOSE
ACHIEVEMENT OF A "JUST AND EQUAL DISTRIBUTION" OF AN INSOLVENT BANK'S
ASSETS THROUGH THE OPERATION OF FAMILIAR EQUITABLE DOCTRINES EVOLVED BY
THE COURTS.  DAVIS V. ELMIRA SAVINGS BANK, 161 U.S. 275, 284; JENKINS
V. NATIONAL SURETY CO., 277 U.S. 258, 267.  AMONG THE OLDEST OF THESE
DOCTRINES IS THE RULE OF SUBROGATION WHEREBY "ONE WHO HAS BEEN
COMPELLED TO PAY A DEBT WHICH OUGHT TO HAVE BEEN PAID BY ANOTHER IS
ENTITLED TO EXERCISE ALL THE REMEDIES WHICH THE CREDITOR POSSESSED
AGAINST THAT OTHER."  SHELDON, SUBROGATION (2D ED.)  SEC.  11; SEE
HAMPTON V. PHIPPS, 108 U.S. 260, 263; HODGSON V. SHAW, 3 MYL.  & K.
183, 191; HAYES V. WARD, 4 JOHNS.  CH. 123, 130. 

HERE THE SURETY WAS COMPELLED TO PAY TO THE COMMONWEALTH $68,500
WHICH OUGHT TO HAVE BEEN PAID BY THE BANK.  OF COURSE, IT SUCCEEDS TO
THE COMMONWEALTH'S RIGHT TO RECEIVE PAYMENT OF $68,500 FROM THE BANK -
AND IN NO EVENT CAN THE SURETY RECEIVE MORE.  BUT AS A MEANS OF
ENFORCING THIS RIGHT THE COMMONWEALTH WAS ENTITLED TO SHARE IN ALL
FUTURE DIVIDENDS ON THE BASIS OF ITS ORIGINAL CLAIM OF $135,000. 
MERRILL V. NATIONAL BANK OF JACKSONVILLE, 173 U.S. 131.  SUCCEEDING TO
THE CREDITOR'S RIGHT, THE SURETY ALSO SUCCEEDS TO THE CREDITOR'S MEANS
FOR ENFORCING IT.  THE SURETY IS A SPECIAL KIND OF SECURED CREDITOR. 
FOR ITS CLAIM AGAINST THE PRINCIPAL IS SECURED BY ITS RIGHT OF
SUBROGATION TO THE REMEDIES OF THE CREDITOR WHICH IT HAS BEEN COMPELLED
TO PAY.  OF COURSE, THIS RIGHT CAN BE AVAILED OF ONLY BY A SURETY ALERT
IN DISCHARGING ITS DUTY, JENKINS V. NATIONAL SURETY CO., 277 U.S. 258,
267, AND ONE NOT GUILTY OF INEQUITABLE CONDUCT, UNITED STATES V. RYDER,
110 U.S. 729, 737.  IN OTHER RESPECTS, A RIGHT OF SUBROGATION IS AS
MUCH IN THE NATURE OF A SECURITY AS IS A MORTGAGE. 

A "RATABLE" DISTRIBUTION REQUIRES THAT DIVIDENDS BE DECLARED
PROPORTIONATELY UPON THE AMOUNT OF ALL CLAIMS AS THEY STAND ON THE DATE
OF THE INSOLVENCY.  THIS IS SETTLED LAW.  WHITE V. KNOX, 111 U.S. 784,
787; MERRILL V. NATIONAL BANK OF JACKSONVILLE, SUPRA, AT 143; TICONIC
BANK V. SPRAGUE, 303 U.S. 406, 411.  "THE DISTRIBUTION IS TO BE
'RATABLE' ON THE CLAIMS AS PROVED OR ADJUDICATED, THAT IS, ON ONE RULE
OF PROPORTION APPLICABLE TO ALL ALIKE.  IN ORDER TO BE 'RATABLE' THE
CLAIMS MUST MANIFESTLY BE ESTIMATED AS OF THE SAME POINT OF TIME, AND
THAT DATE HAS BEEN ADJUDGED TO BE THE DATE OF THE DECLARATION OF
INSOLVENCY."  MERRILL V. NATIONAL BANK OF JACKSONVILLE, SUPRA, AT 143. 
THE BASIS OF PARTICIPATION IN THE BANK'S ASSETS BY THE COMMONWEALTH WAS
$135,000, THE AMOUNT OF THE CLAIM ON THE DATE OF INSOLVENCY.  THE
AMOUNT OF THE CLAIM HAVING BEEN THUS FIXED ON THE DATE OF INSOLVENCY,
IT DID NOT SHRINK BECAUSE OF THE EXTRANEOUS CIRCUMSTANCE OF THE
CREDITOR'S FORETHOUGHT IN SECURING PARTIAL SATISFACTION OF ITS LOSS BY
GOING AGAINST THE COLLATERAL AND THE SURETY. 

TO PERMIT THE SURETY TO STAND IN THE SHOES OF THE SECURED CREDITOR
WHOSE CLAIM IT HAS PAID DOES NOT PREJUDICE THE RIGHTS OF THE GENERAL
CREDITORS.  THE EXTENT OF THEIR PARTICIPATION IN THE DISTRIBUTION OF
THE BANK'S ASSETS WAS FIXED ON THE DAY IT BECAME INSOLVENT.  THE SURETY
WILL RECEIVE NO GREATER SHARE THAN WOULD HAVE BEEN RECEIVED BY THE
COMMONWEALTH HAD IT NOT BEEN FOR THE CIRCUMSTANCE THAT ITS CLAIM WAS
SECURED BY A SURETY'S BOND.  IF, FOR ONE REASON OR ANOTHER, THE SURETY
HAD WITHHELD PAYMENT TO THE COMMONWEALTH, THE LATTER WOULD HAVE
CONTINUED TO RECEIVE DIVIDENDS ON THE FULL AMOUNT OF ITS CLAIM, OR IF,
ON A NICE CALCULATION, THE SURETY HAD AT THE OUTSET SATISFIED ITS
PRINCIPAL'S OBLIGATION, IT WOULD HAVE BEEN ENTITLED TO SHARE ON THE
BASIS OF THE FULL AMOUNT.  ON THE OTHER HAND, IF THE SURETY'S
PARTICIPATION SHOULD BE LIMITED TO THE EXTENT NOW URGED BY THE
RECEIVER, THE OTHER CREDITORS WOULD PROFIT SOLELY BECAUSE OF FORTUITOUS
CIRCUMSTANCES AND WITHOUT ANY RELATION TO REASONS OF INTRINSIC
FAIRNESS.  THE EXTENT OF THE PARTICIPATION OF THE SURETY, AND THEREFORE
THAT OF THE OTHER CREDITORS, WOULD DEPEND ON HOW, WHEN, AND AGAINST
WHOM THE SECURED CREDITOR PRESSES ITS CLAIM.  CF. IN RE THOMPSON, 300
F. 215, 217-18; PACE V. PACE, 95 VA. 792, 799, 30 S.E. 361.  SUCH A
RESULT LEAVES TOO MUCH TO CAPRICE OR ACCIDENT AND IS WHOLLY AT VARIANCE
WITH THE GUIDING CRITERION OF "RATABLE" DISTRIBUTION.  FN1 

A FINAL CONSIDERATION NEEDS MENTION.  THE RECEIVER CITES SEVERAL
INSTANCES IN WHICH THE COMPTROLLER OF THE CURRENCY HAS STATED THAT THE
BASIS OF A SURETY'S CLAIM IS TO BE MEASURED BY THE AMOUNTS IT HAS
EXPENDED.  BUT THERE IS WANTING HERE ANY LONG-CONTINUED PRACTICE WHICH
ESTABLISHES ITS OWN LAW WITHIN THE PERMISSIBLE AREA OF ADMINISTRATIVE
ACTION.  CF. INLAND WATERWAYS CORP. V. YOUNG, 309 U.S. 517, 524-25. 
REVERSED. 

FN1  REFLECTING THE SPECIAL POLICY OF BANKRUPTCY LEGISLATION FAVORING
THE GENERAL CREDITOR AGAINST THE SECURED CREDITOR, THE RULE PREVAILS IN
BANKRUPTCY THAT DIVIDENDS UPON THE CLAIMS OF SECURED CREDITORS "SHALL
BE PAID ONLY ON THE UNPAID BALANCE."  SEC. 57(H), 30 STAT. 544, 560, 11
U.S.C. SEC. 93(H); 14 STAT. 517, 526.  IT IS SETTLED, HOWEVER, THAT THE
"BANKRUPTCY" RULE IS INAPPLICABLE TO THE DISTRIBUTION OF ASSETS OF
INSOLVENT NATIONAL BANKS.  MERRILL V. NATIONAL BANK OF JACKSONVILLE,
173 U.S. 131.  THERE IS NO OCCASION TO REEXAMINE THE CORRECTNESS OF
THAT DECISION, THE AUTHORITY OF WHICH HAS NEVER BEEN QUESTIONED HERE
AND WAS AGAIN RECOGNIZED VERY RECENTLY.  TICONIC BANK V. SPRAGUE, 303
U.S. 406, 412.  ALTHOUGH THE NATIONAL BANK ACT HAS BEEN AMENDED MANY
TIMES SINCE ITS ORIGINAL ENACTMENT IN 1864, 13 STAT. 114, THE PROVISION
GOVERNING DISTRIBUTION OF DIVIDENDS HAS REMAINED SUBSTANTIALLY INTACT. 
THE CONSTRUCTION GIVEN THE PROVISION IN THE MERRILL CASE HAS BEEN LEFT
UNCHANGED BY CONGRESS. 

MR. JUSTICE DOUGLAS, DISSENTING: 

THE ONLY VIRTUE POSSESSED BY MERRILL V. NATIONAL BANK OF
JACKSONVILLE, 173 U.S. 131, IS THE FACT THAT IT HAS BEEN ON THE BOOKS
FOR OVER FORTY YEARS.  IT HELD THAT A SECURED CREDITOR COULD RECEIVE
DIVIDENDS ON THE FACE AMOUNT OF HIS CLAIM EVEN THOUGH THAT CLAIM HAD
BEEN REDUCED BY THE VALUE OF THE COLLATERAL BETWEEN THE DATE OF
INSOLVENCY AND THE DATE OF DISTRIBUTION.  THAT RULE OF DISTRIBUTION IS
INEQUITABLE AND UNFAIR TO THE RUN OF DEPOSITORS.  IT GIVES AN ADVANTAGE
TO THE SECURED CREDITOR UNWARRANTED BY ANY PROVISION OF HIS CONTRACT. 
FOR IT TREATS THE CLAIM AS WHOLLY UNPAID EVEN THOUGH IT HAS BEEN
PARTIALLY DISCHARGED BY LIQUIDATION OF THE COLLATERAL.  THE IMPACT ON
OTHER CREDITORS IS OPPRESSIVE.  UNDER THE RULE OF THE MERRILL CASE, A
DEPOSITOR WITH A $10,000 CLAIM, SECURED BY $5,000 WORTH OF COLLATERAL,
WILL BE WHOLLY PAID IF THE INSOLVENT BANK PAYS A 50% DIVIDEND.  ON THE
OTHER HAND, AN UNSECURED DEPOSITOR WITH A $10,000 CLAIM SALVAGES UNDER
THOSE CIRCUMSTANCES ONLY $5,000.  A RULE OF DISTRIBUTION WHICH
SANCTIONS SUCH A DISCRIMINATORY RESULT VIOLATES THE REQUIREMENT FOR
"RATABLE" DIVIDENDS PRESCRIBED BY THE NATIONAL BANKING ACT.  R.S. SEC.
5236, 12 U.S.C. SEC. 194.  THIS IS NO OCCASION, HOWEVER, TO ELABORATE
ON THE POINT.  IT WAS FULLY COVERED IN ITS HISTORICAL AND LEGAL ASPECTS
BY THE DISSENTING OPINIONS OF MR. JUSTICE WHITE AND MR. JUSTICE GRAY IN
THE MERRILL CASE. 

THE MAJORITY OF THE COURT WAS OF THE VIEW THAT WHATEVER MIGHT BE THE
POWER OF CONGRESS UNDER THE BANKRUPTCY CLAUSE OF THE CONSTITUTION, THE
ADOPTION OF THE BANKRUPTCY RULE  FN2  IN EQUITY WOULD BE AN INVASION OF
"PRIOR" CONTRACT RIGHTS (173 U.S. AT P. 146) - AN IMPAIRMENT OF
OBLIGATION OF CONTRACT.  AND THE REASON FOR THAT CONCLUSION WAS BASED
ON THE THEORY THAT SINCE "THE CREDITOR'S RIGHTS IN THE TRUST FUND ARE
ESTABLISHED WHEN THE FUND IS CREATED, COLLECTIONS SUBSEQUENTLY MADE
FROM, OR PAYMENTS SUBSEQUENTLY MADE ON, COLLATERAL, CANNOT OPERATE TO
CHANGE THE RELATIONS BETWEEN THE CREDITOR AND HIS CO-CREDITORS IN
RESPECT OF THEIR RIGHTS IN THE FUND."  (P. 140.)  FOR THAT REASON IT
WAS HELD THAT THE CLAIMS OF CREDITORS ARE TO BE "DETERMINED AS OF THE
DATE OF THE DECLARATION OF INSOLVENCY."  (P. 147.)  THERE IS SERIOUS
QUESTION WHETHER THAT FOUNDATION HAS NOT BEEN SWEPT AWAY BY WILLIAM
FILENE'S SONS CO. V. WEED, 245 U.S. 597. 

MR. JUSTICE HOLMES STATED IN THE WEED CASE (P. 602):  "BUT WHEN THE
COURTS WITHOUT STATUTE TAKE POSSESSION OF ALL THE ASSETS OF A
CORPORATION UNDER A BILL LIKE THE PRESENT AND SO MAKE IT IMPOSSIBLE TO
COLLECT DEBTS EXCEPT FROM THE COURT'S HANDS, THEY HAVE NO WARRANT FOR
EXCLUDING CREDITORS, OR FOR INTRODUCING SUPPOSED EQUITIES OTHER THAN
THOSE DETERMINED BY THE CONTRACTS THAT THE DEBTOR WAS CONTENT TO MAKE
AND THE CREDITORS TO ACCEPT.  IN ORDER TO MAKE A DISTRIBUTION POSSIBLE
THEY MUST OF NECESSITY LIMIT THE TIME FOR THE PROOF OF CLAIMS.  BUT
THEY HAVE NO AUTHORITY TO GIVE TO THE FILING OF THE BILL THE EFFECT OF
THE FILING OF A PETITION IN BANKRUPTCY SO AS TO EXCLUDE ANY PREVIOUSLY
MADE AND LAWFUL CLAIM THAT MATURES WITHIN A REASONABLE TIME BEFORE
DISTRIBUTION CAN BE MADE." 

THAT THEORY RUNS COUNTER TO THE ASSUMPTION IN THE MERRILL CASE (173
U.S. AT P. 136) THAT A CREDITOR ACQUIRES A "VESTED INTEREST IN THE
TRUST FUND" ANTEDATING DISTRIBUTION.  FOR IF THAT ASSUMPTION WERE
VALID, THE CLAIM IN THE WEED CASE, WHICH HAD MATURED AFTER THE
PROCEEDINGS HAD BEEN INSTITUTED, WOULD HAVE BEEN DISALLOWED.  SUCH AN
ASSUMPTION WOULD LIKEWISE FAIL TO TAKE HEED OF THE ADMONITION OF MR.
JUSTICE HOLMES THAT "SUPPOSED EQUITIES OTHER THAN THOSE DETERMINED BY
THE CONTRACTS THAT THE DEBTOR WAS CONTENT TO MAKE AND THE CREDITORS TO
ACCEPT" ARE NOT TO BE RECOGNIZED.    YET, ASSUMING ARGUENDO THAT THE
PREMISE OF THE MERRILL CASE HAS SURVIVED, THE ANSWER TO THE PROPOSITION
THAT APPLICATION OF THE BANKRUPTCY RULE WOULD RESULT IN IMPAIRMENT OF
OBLIGATION OF CONTRACT WAS COMPLETELY ANSWERED BY MR. JUSTICE WHITE
(173 U.S. AT P. 152):  "  ...  THE PREFERENTIAL RIGHT ARISING FROM THE
CONTRACT OF PLEDGE IS IN NOWISE IMPAIRED BY COMPELLING THE CREDITOR TO
FIRST EXERCISE HIS PREFERENCE AGAINST THE SECURITY RECEIVED FROM THE
DEBTOR, AND THUS CONFINE HIM TO THE SPECIFIC ADVANTAGE DERIVED FROM HIS
CONTRACT.  FURTHER, HOWEVER, AS THE CONTRACT, CONSTRUED IN CONNECTION
WITH THE LAW GOVERNING IT, RESTRICTS THE SECURED AS WELL AS THE
UNSECURED CREDITOR TO A RATABLE DIVIDEND FROM THE GENERAL ASSETS, THE
SECURED CREDITOR IS PREVENTED FROM ENHANCING THE ADVANTAGE OBTAINED AS
A RESULT OF THE CONTRACT FOR SECURITY, BY PROVING HIS CLAIM AS IF NO
SECURITY EXISTED, SINCE TO ALLOW HIM TO SO DO WOULD DESTROY THE RULE OF
RATABLE DIVISION, SUBJECT AND SUBORDINATE TO WHICH THE CONTRACT WAS
MADE."  AND SEE GLENN, LIQUIDATION (1935) SEC. 530. 

THIS ANALYSIS OF THE MERRILL CASE IS GERMANE TO THE PRESENT PROBLEM
NOT MERELY TO FOCUS THE HISTORICAL SETTING OF THE RULE WHICH WE ARE
ASKED TO ENFORCE.  IT IS ESPECIALLY IMPORTANT BECAUSE WE ARE NOW ASKED
TO EXTEND THAT RULE TO A SPECIAL TYPE OF UNSECURED CREDITOR. 

THE SURETY WHO SEEKS ITS PROTECTION HAS AN UNSECURED CLAIM FOR
$68,500.  IT SEEKS TO GAIN THE ADVANTAGES WHICH A SECURED CREDITOR WITH
A CLAIM OF $135,000 WOULD HAVE, I. E. THE RIGHT TO RECEIVE DIVIDENDS ON
THAT BASIS.  TO DENY THE SURETY THAT PREFERENCE WOULD BE NO INVASION OF
"PRIOR CONTRACT RIGHTS," NO IMPAIRMENT OF OBLIGATION OF CONTRACT, UNDER
THE THEORY OF THE MAJORITY IN THE MERRILL CASE.  THIS SURETY NEITHER
HAS NOR HAD ANY CLAIM WHICH WAS SECURED.  NOR DID IT HAVE ANY FIXED AND
LIQUIDATED CLAIM AT THE DATE OF THE DECLARATION OF INSOLVENCY.  ITS
CLAIM WAS ALWAYS UNSECURED AND IT MATURED, AS IN THE WEED CASE, AFTER
THE APPOINTMENT OF THE RECEIVER.  NEVERTHELESS, THIS SURETY, THOUGH IT
WOULD FAIL TO GAIN THE PREFERRED POSITION OF A SECURED CREDITOR UNDER
THE TEST OF THE MERRILL CASE, IS ALLOWED TO REACH THAT POSITION THROUGH
THE BACK DOOR OF SUBROGATION. 

IT IS ORDINARILY TRUE THAT A SURETY SUCCEEDS TO ALL OF THE RIGHTS AND
REMEDIES OF THE CREDITOR, INCLUDING THE LATTER'S PRIORITY. 
LIDDERDALE'S EXECUTORS V. EXECUTOR OF ROBINSON, 12 WHEAT.  594.  BUT
THAT IS NO INEXORABLE RULE.  AS THIS COURT STATED IN MEMPHIS & LITTLE
ROCK R. V. DOW, 120 U.S. 287, 301-302, "THE RIGHT OF SUBROGATION IS NOT
FOUNDED ON CONTRACT.  IT IS A CREATURE OF EQUITY; IS ENFORCED SOLELY
FOR THE PURPOSE OF ACCOMPLISHING THE ENDS OF SUBSTANTIAL JUSTICE."  IN
DETERMINING WHETHER IT WOULD BE FAIR OR EQUITABLE TO ALLOW THE
SUBROGATION TO THE FULL EXTENT OF THE CREDITOR'S RIGHTS AND REMEDIES,
CONSIDERATION WILL, OF COURSE, BE GIVEN TO THE PREJUDICE, IF ANY,
SUFFERED BY OTHER CREDITORS.  BUT THE MERE FACT THAT THE OTHER
CREDITORS WILL NOT BE WORSE OFF THAN IF THE SURETY'S PRINCIPAL HAD
PRESSED THE CLAIM IS NOT THE SOLE SOLVENT OF THE PROBLEM.  WE ARE NOT
DEALING WITH A MECHANICAL RULE.  THE QUESTION REMAINS WHETHER JUSTICE
REQUIRES, OR POLICY PERMITS, THE SURETY TO SUCCEED TO HIS PRINCIPAL'S
PRIVILEGED POSITION. 

SUCH CONSIDERATIONS FREQUENTLY ARE A BARRIER TO ANY SUBROGATION; AT
OTHER TIMES THEY MAY CUT DOWN THE RIGHTS OF THE SURETY AND GIVE HIM
LESS THAN HIS PRINCIPAL COULD EXACT.  ILLUSTRATIONS OF THE FORMER ARE
GERMAN BANK V. UNITED STATES, 148 U.S. 573, WHERE SUBROGATION WAS
DENIED BECAUSE IT AROSE FROM CONDUCT WHICH WAS TORTIOUS; AND UNITED
STATES V. RYDER, 110 U.S. 729, WHERE A SURETY ON RECOGNIZANCE BAIL WAS
DENIED SUBROGATION TO THE RIGHTS OF THE UNITED STATES.  IN THE RYDER
CASE, SUBROGATION WAS DENIED BECAUSE, INTER ALIA, ITS ALLOWANCE "WOULD
BE TO AID THE BAIL TO GET RID OF THEIR OBLIGATION, AND TO RELIEVE THEM
FROM THE MOTIVES TO EXERT THEMSELVES IN SECURING THE APPEARANCE OF THE
PRINCIPAL.  SUBROGATION TO THE LATTER REMEDIES WOULD CLEARLY BE AGAINST
PUBLIC POLICY BY SUBVERTING, AS FAR AS IT MIGHT PROVE EFFECTUAL, THE
VERY OBJECT AND PURPOSE OF THE RECOGNIZANCE."  ID., P. 737. 

CLOSER IN POINT, HOWEVER, ARE THOSE CASES WHICH AWARD THE SURETY LESS
RIGHTS THAN HIS PRINCIPAL HAD.  THUS, SOUTH PHILADELPHIA STATE BANK'S
INSOLVENCY, 295 PA. 433, 145 A. 520, HELD THAT WHILE A SURETY WAS
ENTITLED TO BE SUBROGATED TO THE RIGHTS OF A STATE AGAINST AN INSOLVENT
BANK, THE SURETY DID NOT, IN ABSENCE OF STATUTE,  FN3  ACQUIRE THE
STATE'S PRIORITY.  SEE ARNOLD, AN INEQUITABLE PREFERENCE IN FAVOR OF
SURETY COMPANIES, 36 W. VA. L.Q. 278; (NOTE) 81 U. PA. L. REV. 441. 
THE THEORY OF THAT CASE IS THAT "THE STATE'S RIGHT TO A PREFERENCE OVER
OTHER CREDITORS, BEING A SOVEREIGN RIGHT ENJOYED FOR THE BENEFIT OF ALL
THE PEOPLE, CANNOT BE TRANSFERRED TO INDIVIDUALS EXCEPT BY EXPRESS
LEGISLATIVE SANCTION."  (295 PA. AT P. 440.)  THOUGH THAT CASE
REPRESENTS THE MINORITY VIEW IN THE STATE COURTS,  FN4  IT IS
RECOGNITION OF THE HEALTHY PRINCIPLE THAT APPLICATION OF THE RULE OF
SUBROGATION SHOULD NOT BE REDUCED TO A CONCEPTUALISTIC FORMULA. 

THE SWEEP OF THAT PRINCIPLE IS ILLUSTRATED BY MEMPHIS & LITTLE ROCK
R. CO. V. DOW, SUPRA.  IN THAT CASE THE PRIOR LIEN CREDITOR HAD A CLAIM
WITH INTEREST AT 8%.  TO ALLOW THE SURETY THE SAME RATE OF INTEREST
WOULD NOT HAVE PUT THE JUNIOR LIENOR IN A WORSE PLIGHT.  BUT THIS COURT
DISALLOWED THAT RATE, POINTING OUT (120 U.S. AT P. 302) THAT THE SURETY
WAS ENTITLED ONLY TO REIMBURSEMENT.  A SIMILAR APPROACH IN THIS CASE
WOULD BE TO ASCERTAIN THE EQUITIES OF THE SURETY'S CLAIM, NOT BY
LOOKING FOR THE PRINCIPAL'S RIGHTS UNDER ITS CONTRACT BUT FOR REASONS
WHY THIS SURETY SHOULD BE ACCORDED PRIORITY OVER OTHER UNSECURED
CREDITORS.  EQUITY HAS REGARD NOT ONLY FOR THE RIGHTS OF OTHER
CREDITORS (JENKINS V. NATIONAL SURETY CO., 277 U.S. 258) BUT ALSO FOR
THE STAKE WHICH THE SURETY HAS AND WHICH IT IS ASKING A COURT OF EQUITY
TO PROTECT.  A COURT OF EQUITY SHOULD NEITHER "COME TO THE AID OF ONE"
WHOSE EQUITY IS "SUBORDINATE UNTIL CLAIMS SUPERIOR IN EQUITY" HAVE BEEN
SATISFIED (AMERICAN SURETY CO. V. WESTINGHOUSE ELECTRIC MFG. CO., 296
U.S. 133, 136), NOR CREATE SUPERIOR EQUITIES ON BEHALF OF ONE WHO CAN
SHOW NO MORE COMPELLING REASONS FOR PREFERRED TREATMENT THAN CAN THOSE
WITH WHOM HE COMPETES.  UNDER SUCH AN APPROACH, THIS SURETY WOULD BE
DENIED A SUPERIOR EQUITY. 

HERE, THE SURETY HAS ONLY AN UNSECURED CLAIM OF $68,500.  ANY REASON
FOR CONTINUATION OF THE DISCRIMINATION AGAINST THE GENERAL DEPOSITORS
OF THIS BANK DISAPPEARED WHEN THE SURETY'S CREDITOR WAS PAID.  NO
EQUITY HAS BEEN SUGGESTED FOR ALLOWING THIS SURETY PREFERRED
TREATMENT.  IT WAS PAID TO ASSUME THE RISK OF INSOLVENCY OF THE BANK. 
IT WAS PAID BY THE BANK ITSELF.  AND IT HAS NOT BEEN SHOWN THAT IT
CHARGED A LOWER RATE BECAUSE OF THE RULE OF THE MERRILL CASE.  IN VIEW
OF THOSE CIRCUMSTANCES, IT SHOULD NOT BE ALLOWED THE LION'S SHARE.  IT
IS ENTITLED TO REIMBURSEMENT BUT CERTAINLY IN NO GREATER AN AMOUNT THAN
THE RUN OF DEPOSITORS.  IT IS NO ANSWER TO SAY THAT SUCH A RESULT WOULD
GIVE THE GENERAL DEPOSITORS A WINDFALL.  UNLESS SUBROGATION IS TO BE A
MECHANICAL FORMULA, THIS SURETY SHOULD BE REQUIRED TO ESTABLISH ITS
SPECIAL EQUITY TO PREFERRED TREATMENT - REASONS WHY IT, UNLIKE ANY
OTHER UNSECURED CREDITOR, SHOULD ENJOY THE BENEFITS OF THE
DISCRIMINATORY RULE OF THE MERRILL CASE. 

FINALLY, IT IS SUGGESTED THAT IF THE SURETY IS NOT ALLOWED THIS
PREFERENCE, MUCH WILL BE LEFT TO "CAPRICE OR ACCIDENT," SINCE THE
SURETY WOULD HAVE BEEN ENTITLED TO SHARE ON THE BASIS OF THE FULL
AMOUNT IF IT HAD SATISFIED THE CREDITOR'S OBLIGATION AT THE VERY
OUTSET.  THE ANSWER TO THAT IS THAT WE WOULD THEN HAVE TO DETERMINE
WHETHER THE MERRILL CASE HAS SURVIVED THE WEED CASE (SEE CLARK, PROOF
BY SECURED CREDITORS IN INSOLVENCY AND RECEIVERSHIP PROCEEDINGS, 15
ILL. L. REV. 171), AND, IF SO, WHETHER IT SHOULD BE OVERRULED.  IT IS
SUFFICIENT AT THIS TIME TO SAY THAT, IN VIEW OF THE FLIMSY BASIS ON
WHICH THE MERRILL CASE RESTS, AND THE OPPRESSIVE NATURE OF THE RULE IT
FASHIONED, IT SHOULD NOT BE EXTENDED. 

FN1  IT SHOULD BE NOTICED THAT THE BANKRUPTCY RULE, NOW CODIFIED
(BANKRUPTCY ACT SEC. 57(H), 11 U.S.C. SEC. 93(H)), WHICH ALLOWS THE
SECURED CREDITOR TO RECEIVE DIVIDENDS ONLY ON THE BALANCE REMAINING
AFTER THE VALUE OF THE SECURITY HAS BEEN DEDUCTED FROM THE CLAIM, DID
NOT DERIVE FROM A SPECIAL STATUTORY PROVISION.  AS POINTED OUT BY MR.
JUSTICE GRAY IN HIS DISSENT IN THE MERRILL CASE (173 U.S. AT PP. 174
175) THE BANKRUPTCY ACT OF 1841(5 STAT. 440) HAD NO SUCH PROVISION. 
YET ITS REQUIREMENT FOR "PRO RATA" DISTRIBUTION (SEC. 5) WAS RECOGNIZED
BY MR. JUSTICE STORY, ITS DRAFTSMAN, AS PERMITTING A SECURED CREDITOR
TO PROVE ONLY FOR THE BALANCE OF HIS CLAIM AS REMAINED AFTER CREDITING
THE VALUE OF THE SECURITY.  EX PARTE CITY BANK OF NEW ORLEANS, 3 HOW. 
292, 315.  THAT RULE OF CONSTRUCTION FOLLOWED THE LONG ESTABLISHED
ENGLISH BANKRUPTCY RULE.  SEE MR. JUSTICE WHITE, DISSENTING, 173 U.S.
AT PP. 153-155.  AS STATED BY LORD ELDON IN EX PARTE SMITH, 2 ROSE
BANK.  REP. 63, 64, UNTIL THE SECURED CREDITOR'S CLAIM HAS BEEN REDUCED
BY DEDUCTING THE VALUE OF THE SECURITY "IT IS IMPOSSIBLE CORRECTLY TO
SAY WHAT THE ACTUAL AMOUNT OF IT IS." 

FN2  BY STATUTE A SURETY OF THE UNITED STATES SUCCEEDS TO THE
LATTER'S PRIORITY.  R.S. SEC. 3468, 31 U.S.C. SEC. 193.  IT SHOULD BE
NOTED, HOWEVER, THAT THOUGH THE UNITED STATES HAS PRIORITY AGAINST AN
INSOLVENT (R.S. SEC. 3466, 31 U.S.C. SEC. 191) THAT PRIORITY HAS BEEN
HELD NOT TO EXTEND TO AN INSOLVENT NATIONAL BANK.  COOK COUNTY NAT'L
BANK V. UNITED STATES, 107 U.S. 445. 

FN3  SEE ARANT, SURETYSHIP (1931), P. 363. 

MR. JUSTICE BLACK CONCURS IN THIS DISSENT. 
..END :






















TEXTILE MILLS CORP. V. COMM'R, 314 U.S. 326 


NO. 34.  ARGUED NOVEMBER 10, 1941.  - DECIDED DECEMBER 8, 1941.  - 117
F.2D 62, AFFIRMED. 


1.  A CIRCUIT COURT OF APPEALS MAY BE COMPOSED OF ALL THE CIRCUIT
JUDGES OF THE CIRCUIT IN ACTIVE SERVICE, MORE THAN THREE IN NUMBER,
SITTING EN BANC.  P. 333. 

2.  THE EXPENSES OF LOBBYING AND PROPAGANDA PAID BY AN AGENT EMPLOYED
TO SECURE LEGISLATION FROM CONGRESS AUTHORIZING THE RECOVERY OF GERMAN
PROPERTIES SEIZED DURING THE WORLD WAR UNDER THE TRADING WITH THE ENEMY
ACT, ARE NOT DEDUCTIBLE AS "ORDINARY AND NECESSARY EXPENSES" OF THE
AGENT WITHIN THE MEANING OF SEC. 23(A) OF THE REVENUE ACT OF 1928,
CONSTRUED BY ART. 262 OF TREASURY REGULATIONS 74.  P. 335. 

TEXTILE MILLS SECURITIES CORP. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 312 U.S. 677, TO REVIEW A JUDGMENT REVERSING A DECISION
OF THE BOARD OF TAX APPEALS, 38 B.T.A. 623, WHICH HAD OVERRULED A
DEFICIENCY ASSESSMENT BASED ON THE DISALLOWANCE OF CERTAIN DEDUCTIONS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS TWO PROBLEMS:  (1) WHETHER A CIRCUIT COURT OF
APPEALS MAY BE COMPOSED OF ALL THE CIRCUIT JUDGES OF THE CIRCUIT IN
ACTIVE SERVICE, MORE THAN THREE IN NUMBER, SITTING EN BANC; (2) WHETHER
PETITIONER MAY DEDUCT UNDER THE REVENUE ACT OF 1928(45 STAT. 791)
CERTAIN EXPENSES INCURRED BY IT UNDER CONTRACTS IN CONNECTION WITH THE
PRESENTATION OF CLAIMS TO CONGRESS ON BEHALF OF FORMER ENEMY ALIENS FOR
THE PROCUREMENT AND ENACTMENT OF AMENDATORY LEGISLATION AUTHORIZING THE
PAYMENT OF THE CLAIMS.  WE GRANTED THE PETITION FOR CERTIORARI BECAUSE
OF THE PUBLIC IMPORTANCE OF THE FIRST PROBLEM AND THE CONTRARIETY OF
THE VIEWS OF THE COURT BELOW (117 F.2D 62) AND JUDGES OF THE CIRCUIT
COURT OF APPEALS FOR THE NINTH CIRCUIT (LANG'S ESTATE V. COMMISSIONER,
97 F.2D 867) AS RESPECTS ITS SOLUTION. 

FIRST:  THERE ARE FIVE CIRCUIT JUDGES,  FN1  IN ACTIVE SERVICE,  FN2
OF THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.  ALL FIVE HEARD
AND DECIDED THIS CASE.  THOUGH THEY DIVIDED THREE TO TWO ON THE
DEDUCTIBILITY OF THE EXPENSES IN QUESTION, THEY WERE UNANIMOUS IN THE
CONCLUSION THAT FIVE WERE AUTHORIZED TO HEAR AND DECIDE THE CASE.  FN3 

THE PROBLEM ARISES BECAUSE SEC. 117 OF THE JUDICIAL CODE (28 U.S.C.
SEC. 212; 36 STAT. 1131) PROVIDES THAT "THERE SHALL BE IN EACH CIRCUIT
A CIRCUIT COURT OF APPEALS, WHICH SHALL CONSIST OF THREE JUDGES, OF
WHOM TWO SHALL CONSTITUTE A QUORUM, WHICH SHALL BE A COURT OF RECORD,
WITH APPELLATE JURISDICTION, AS HEREINAFTER LIMITED AND ESTABLISHED." 
THAT PROVISION DERIVES FROM SEC. 2 OF THE ACT OF MARCH 3, 1891, 26
STAT. 826, WHICH ESTABLISHED THE CIRCUIT COURT OF APPEALS.  FN4  THOUGH
CONGRESS BY THAT ACT CREATED THESE NEW COURTS, IT DID NOT MAKE
PROVISION FOR THE APPOINTMENT TO THEM OF A NEW GROUP OF JUDGES.  IT
PROVIDED, HOWEVER, BY SEC. 3 OF THAT ACT THAT THE CHIEF JUSTICE AND
ASSOCIATE JUSTICES OF THE SUPREME COURT ASSIGNED TO EACH CIRCUIT AND
THE CIRCUIT JUDGES AND DISTRICT JUDGES WITHIN EACH CIRCUIT "SHALL BE
COMPETENT TO SIT AS JUDGES OF THE CIRCUIT COURT OF APPEALS WITHIN THEIR
RESPECTIVE CIRCUITS."  THUS IT IS APPARENT THAT THE NEWLY CREATED
CIRCUIT COURT OF APPEALS WAS TO BE COMPOSED OF ONLY THREE JUDGES  FN5
WHO WERE TO BE DRAWN FROM THE THREE EXISTING GROUPS OF JUDGES - THE
CIRCUIT JUSTICE, THE CIRCUIT JUDGES, AND THE DISTRICT JUDGES. 

THAT ARRANGEMENT CONTINUED UNTIL ENACTMENT OF THE JUDICIAL CODE.  ACT
OF MARCH 3, 1911, C. 231, 36 STAT. 1087.  THE JUDICIAL CODE ABOLISHED
THE EXISTING CIRCUIT COURTS.  SEC. 297.  IT CARRIED OVER INTO SEC. 117
WITHOUT SUBSTANTIAL CHANGE THE PROVISION OF SEC. 2 OF THE ACT OF MARCH
3, 1891 THAT THERE SHOULD BE A CIRCUIT COURT OF APPEALS IN EACH CIRCUIT
"WHICH SHALL CONSIST OF THREE JUDGES."  THOUGH THIS SECTION WAS SAID
MERELY TO REPRESENT EXISTING LAW,  FN6  SEC. 118 OF THE JUDICIAL CODE
PROVIDED FOR FOUR CIRCUIT JUDGES IN THE SECOND, SEVENTH, AND EIGHTH
CIRCUITS, TWO IN THE FOURTH CIRCUIT, AND THREE IN EACH OF THE OTHERS. 
AN ANOMALOUS SITUATION WAS PRESENTED IF SEC. 117 WERE TO BE TAKEN AT
THAT JUNCTURE AS MEANING THAT THE CIRCUIT COURT OF APPEALS WOULD
CONTINUE TO BE COMPOSED OF ONLY THREE, IN FACE OF THE FACT THAT THERE
WERE MORE THAN THREE CIRCUIT JUDGES IN SOME CIRCUITS.  THOUGH SEC. 3 OF
THE ACT OF MARCH 3, 1891, MADE THE CIRCUIT JUDGES "COMPETENT TO SIT AS
JUDGES OF THE CIRCUIT COURT OF APPEALS WITHIN THEIR RESPECTIVE
CIRCUITS," SEC. 120 OF THE JUDICIAL CODE INTO WHICH THE PROVISIONS OF
SEC. 3 WERE CARRIED ELIMINATED THE CIRCUIT JUDGES FROM THE GROUPS OF
JUDGES "COMPETENT TO SIT."  YET IT RETAINED THE PROVISION THAT THE
CIRCUIT JUSTICES AND THE DISTRICT JUDGES WERE SO QUALIFIED.  WE AGREE,
HOWEVER, WITH THE VIEW OF THE COURT BELOW THAT THE CIRCUIT JUDGES
BECAME EX OFFICIO JUDGES OF THE RESPECTIVE CIRCUIT COURTS OF APPEALS
WHEN THE CIRCUIT COURTS WERE ABOLISHED.  THOUGH SEC. 120 DID NOT
DESIGNATE THEM AS "COMPETENT TO SIT," ITS OTHER PROVISIONS MADE CLEAR
THAT THEY WERE INTENDED TO SIT.  THUS, IT WAS PROVIDED THAT THE
DISTRICT JUDGES SHOULD BE DRAWN UPON ONLY IN CASE THE COURT COULD NOT
BE MADE UP BY THE CIRCUIT JUSTICES AND THE CIRCUIT JUDGES.  FN7  YET,
IF SEC. 117 WERE TO BE READY LITERALLY, THE CIRCUIT COURT OF APPEALS
WAS TO "CONSIST" OF ONLY THREE JUDGES IN SPITE OF THE FACT THAT
CONGRESS HAD ALREADY PROVIDED IN SOME CIRCUITS FOR MORE THAN THREE
CIRCUIT JUDGES.  CLEARLY, WHERE THERE WERE FOUR, ALL COULD NOT BE
MEMBERS OF A COURT OF THREE.  YET THERE WAS PLAINLY INFERABLE A
CONGRESSIONAL PURPOSE TO CONSTITUTE IN SOME CIRCUITS A CIRCUIT COURT OF
APPEALS OF FOUR JUDGES.  FN8 

ANY DOUBTS ON THAT SCORE  FN9  WERE RESOLVED BY THE ACT OF JANUARY
13, 1912, C. 9, 37 STAT. 52, WHICH AMENDED SEC. 118 OF THE JUDICIAL
CODE BY THE ADDITION OF THE PROVISION THAT "THE CIRCUIT JUDGES IN EACH
CIRCUIT SHALL BE JUDGES OF THE CIRCUIT COURT OF APPEALS IN THAT
CIRCUIT, AND IT SHALL BE THE DUTY OF EACH CIRCUIT JUDGE IN EACH CIRCUIT
TO SIT AS ONE OF THE JUDGES OF THE CIRCUIT COURT OF APPEALS IN THAT
CIRCUIT FROM TIME TO TIME ACCORDING TO LAW."  SENATOR SUTHERLAND WHO
HAD CHARGE OF THE BILL IN THE SENATE STATED ON THE FLOOR:  "IT MAKES NO
CHANGE WHATEVER IN THE EXISTING LAW EXCEPT TO MAKE IT CLEAR THAT THE
CIRCUIT JUDGES IN THE VARIOUS CIRCUITS OF THE UNITED STATES SHALL
CONSTITUTE THE CIRCUIT COURT OF APPEALS.  FN10  "  THE PURPOSE SEEMS
PLAIN:  THE SIZE OF EACH CIRCUIT COURT OF APPEALS WAS NOT TO BE LESS
THAN THE NUMBER OF CIRCUIT JUDGES AUTHORIZED BY LAW.  FN11 

AND SO WE REACH THE QUESTION AS TO WHETHER THE AVOWED PURPOSE OF SEC.
118 WAS DEFEATED BY SEC. 117.  WE DO NOT THINK IT WAS. 

THAT PURPOSE WAS NOT THWARTED BY THE PROVISION IN THE 1912 AMENDMENT
TO SEC. 118 THAT "IT SHALL BE THE DUTY OF EACH CIRCUIT JUDGE IN EACH
CIRCUIT TO SIT AS ONE OF THE JUDGES OF THE CIRCUIT COURT OF APPEALS IN
THAT CIRCUIT FROM TIME TO TIME ACCORDING TO LAW."  IT HAS BEEN
SUGGESTED THAT "ACCORDING TO LAW" REFERS TO SEC. 117.  IN OUR VIEW,
HOWEVER, IT IS THE TIME OF THE SITTING WHICH IS TO BE "ACCORDING TO
LAW."  HENCE, THE REFERENCE MUST BE TO SEC. 126 OF THE JUDICIAL CODE
(28 U.S.C. SEC. 223) WHICH REGULATES THE TIMES WHEN THE CIRCUIT COURTS
OF APPEALS SHALL SIT. 

IF SEC. 117 COULD REASONABLY BE CONSTRUED TO PROVIDE THAT THE COURT,
WHEN SITTING, SHOULD CONSIST OF THREE JUDGES DRAWN FROM A PANEL OF SUCH
LARGER NUMBER AS MIGHT FROM TIME TO TIME BE AUTHORIZED, RECONCILIATION
WITH SEC. 118 WOULD BE OBVIOUS.  SEC. 117, HOWEVER, CONTAINS NO SUCH
QUALIFICATION.  AND SINCE IT ESTABLISHES THE COURT AS A "COURT OF
RECORD, WITH APPELLATE JURISDICTION," IT CANNOT READILY BE INFERRED
THAT THE PROVISION FOR THREE JUDGES IS A LIMITATION ONLY ON THE NUMBER
WHO MAY HEAR AND DECIDE A 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 (SEC. 122); THE MAKING OF RULES AND REGULATIONS (SEC. 122);
THE APPOINTMENT OF A CLERK (SEC. 124) AND THE APPROVAL OF THE
APPOINTMENT AND REMOVAL OF DEPUTY CLERKS (SEC. 125); AND THE FIXING OF
THE "TIMES" WHEN COURT SHALL BE HELD.  SEC. 126.  FURTHERMORE, THOSE
VARIOUS SECTIONS OF THE JUDICIAL CODE PROVIDE THAT EACH OF THESE
FUNCTIONS SHALL BE PERFORMED BY THE "COURT."  IN THAT CONNECTION IT
SHOULD BE NOTED THAT MOST OF THEM DERIVE, AS DOES SEC. 117, FROM SEC. 2
OF THE ACT OF MARCH 3, 1891.  THE FIRST SENTENCE OF SEC. 2 PROVIDED
THAT THE COURT "SHALL CONSIST OF THREE JUDGES."  THE NEXT SENTENCE
STATED THAT "SUCH COURT SHALL PRESCRIBE THE FORM AND STYLE OF ITS SEAL
AND THE FORM OF WRITS AND OTHER PROCESS AND PROCEDURE," ETC.  IN THAT
SETTING IT IS DIFFICULT TO PERCEIVE HOW THE WORD "COURT" IN THE SECOND
SENTENCE WAS USED IN A DIFFERENT SENSE THAN IN THE PRECEDING SENTENCE. 
AND WE LOOK IN VAIN FOR ANY INDICATION  FN12  THAT WHEN THOSE SEPARATE
SENTENCES WERE SECTIONALIZED IN THE CODE, THEY ACQUIRED A MEANING WHICH
THEY DID NOT HAVE IN SEC. 2 OF THE ACT OF MARCH 3, 1891. 

WE CANNOT CONCLUDE, HOWEVER, THAT THE WORD "COURT" AS USED IN THOSE
OTHER PROVISIONS OF THE JUDICIAL CODE MEANS ONLY THREE JUDGES.  THAT
WOULD NOT ONLY PRODUCE A MOST AWKWARD SITUATION; IT WOULD ON ALL
MATTERS DISENFRANCHISE SOME CIRCUIT JUDGES AGAINST THE CLEAR INTENDMENT
OF SEC. 118.  NOR CAN WE CONCLUDE THAT THE WORD "COURT" MEANS ONLY
THREE JUDGES WHEN THE COURT IS SITTING, BUT ALL THE JUDGES WHEN OTHER
FUNCTIONS ARE PERFORMED.  CERTAINLY THERE IS NO SPECIFIC AUTHORITY FOR
THAT CONSTRUCTION.  AND IT IS DIFFICULT TO REACH THAT CONCLUSION BY
INFERENCE.  FOR TO DO SO WOULD BE TO IMPLY THAT CONGRESS PROHIBITED
SOME CIRCUIT JUDGES FROM PARTICIPATION IN THE MOST IMPORTANT FUNCTION
OF THE "COURT" (THE HEARING AND THE DECISION OF APPEALS), THOUGH
ALLOWING ALL OF THEM TO PERFORM THE OTHER FUNCTIONS.  SUCH A
PROHIBITION AS RESPECTS THE ORDINARY RESPONSIBILITIES OF A JUDICIAL
OFFICE SHOULD BE INFERRED ONLY UNDER COMPELLING NECESSITY, SINCE A
COURT USUALLY WILL CONSIST OF ALL THE JUDGES APPOINTED TO IT.  THAT
NECESSITY IS NOT PRESENT HERE.  THE AMBIGUITY IN THE STATUTE IS
DOUBTLESS THE PRODUCT OF INADVERTENCE.  THOUGH THE PROBLEM OF
CONSTRUCTION IS BESET WITH DIFFICULTIES, THE CONCLUSION THAT SEC. 117
PROVIDES MERELY THE PERMISSIBLE COMPLEMENT OF JUDGES FOR A CIRCUIT
COURT OF APPEALS RESULTS IN GREATER HARMONY IN THE STATUTORY SCHEME
FN13 THAN IF THE LANGUAGE OF SEC. 117 IS TAKEN TOO LITERALLY.  AND ANY
SACRIFICE OF LITERALNESS FOR COMMON SENSE DOES NO VIOLENCE TO THE
HISTORY OF SEC. 117.  THAT HISTORY IS LARGELY NEGATIVE IN THE SENSE
THAT THERE IS NO CLEAR STATEMENT BY SPONSORS OF THIS LEGISLATION THAT
SEC. 118, READ IN LIGHT OF SEC. 117, PREVENTS THE CONCLUSION WHICH WE
HAVE REACHED.  FN14  CERTAINLY, THE RESULT REACHED MAKES FOR MORE
EFFECTIVE JUDICIAL ADMINISTRATION.  FN15  CONFLICTS WITHIN A CIRCUIT
WILL BE AVOIDED.  FINALITY OF DECISION IN THE CIRCUIT COURTS OF APPEAL
WILL BE PROMOTED.  THOSE CONSIDERATIONS ARE ESPECIALLY IMPORTANT IN
VIEW OF THE FACT THAT IN OUR FEDERAL JUDICIAL SYSTEM THESE COURTS ARE
THE COURTS OF LAST RESORT IN THE RUN OF ORDINARY CASES.  SUCH
CONSIDERATIONS ARE, OF COURSE, NOT FOR US TO WEIGH IN CASE CONGRESS HAS
DEVISED A SYSTEM WHERE THE JUDGES OF A COURT ARE PROHIBITED FROM
SITTING EN BANC.  BUT WHERE, AS HERE, THE CASE ON THE STATUTE IS NOT
FORECLOSED, THEY AID IN TIPPING THE SCALES IN FAVOR OF THE MORE
PRACTICABLE INTERPRETATION. 

SECOND: THE EXPENSES IN QUESTION ARE SOUGHT TO BE DEDUCTED AS
"ORDINARY AND NECESSARY EXPENSES" WITHIN THE MEANING OF SEC. 23(A) OF
THE REVENUE ACT OF 1928.  PETITIONER, A DELAWARE CORPORATION, WAS
EMPLOYED TO REPRESENT CERTAIN GERMAN TEXTILE INTERESTS, WHOSE
PROPERTIES IN THIS COUNTRY HAD BEEN SEIZED DURING THE WORLD WAR UNDER
THE PROVISIONS OF THE TRADING WITH THE ENEMY ACT.  40 STAT. 411. 
PETITIONER'S EMPLOYMENT WAS MADE WITH A VIEW TOWARDS PROCURING
LEGISLATION WHICH WOULD PERMIT ULTIMATE RECOVERY OF THE PROPERTIES. 
THE ESTIMATED AGGREGATE VALUE OF THE PROPERTIES WAS $60,000,000. 
PETITIONER WAS TO BE COMPENSATED ON A PERCENTAGE BASIS IN CASE IT WAS
SUCCESSFUL.  IT, HOWEVER, WAS TO BEAR ALL THE COSTS AND EXPENSES. 
PETITIONER LAUNCHED ITS CAMPAIGN.  A PUBLICIST WAS RETAINED TO ARRANGE
FOR SPEECHES, NEWS ITEMS, AND EDITORIAL COMMENT.  TWO LEGAL EXPERTS
WERE RETAINED TO PREPARE PROPAGANDA CONCERNING INTERNATIONAL RELATIONS,
TREATY RIGHTS AND THE POLICY OF THIS NATION AS RESPECTS ALIEN PROPERTY
IN TIME OF WAR.  THE OBJECTIVE OF THE CAMPAIGN WAS ACCOMPLISHED BY THE
PASSAGE OF THE SETTLEMENT OF WAR CLAIMS ACT OF 1928, 45 STAT. 254. 
DEDUCTIONS FOR THE AMOUNT PAID TO THE PUBLICIST AND THE TWO LAWYERS
WERE TAKEN IN 1929 AND 1930, THEREBY PRODUCING A NET LOSS IN EACH OF
THOSE YEARS.  PURSUANT TO SEC. 117 OF THE 1928 ACT, THE NET LOSS WAS
CARRIED FORWARD TWO YEARS AND APPLIED AGAINST INCOME FOR 1931.  THE
COMMISSIONER DISALLOWED THE DEDUCTIONS AND DETERMINED A DEFICIENCY. 
THE BOARD OF TAX APPEALS DISAGREED, HOLDING THAT THERE WAS NO
DEFICIENCY.  38 B.T.A. 623.  THE CIRCUIT COURT OF APPEALS REVERSED THE
BOARD. 

WE AGREE THAT THE EXPENSES IN QUESTION WERE NOT DEDUCTIBLE.  ART. 262
OF TREASURY REGULATIONS 74, PROMULGATED UNDER THE 1928 ACT, WAS
ENTITLED "DONATIONS BY CORPORATIONS" AND PROVIDED: 

"CORPORATIONS ARE NOT ENTITLED TO DEDUCT FROM GROSS INCOME
CONTRIBUTIONS OR GIFTS WHICH INDIVIDUALS MAY DEDUCT UNDER SECTION
23(N).  DONATIONS MADE BY A CORPORATION FOR PURPOSES CONNECTED WITH THE
OPERATION OF ITS BUSINESS, HOWEVER, WHEN LIMITED TO CHARITABLE
INSTITUTIONS, HOSPITALS, OR EDUCATIONAL INSTITUTIONS CONDUCTED FOR THE
BENEFIT OF ITS EMPLOYEES OR THEIR DEPENDENTS ARE A PROPER DEDUCTION AS
ORDINARY AND NECESSARY EXPENSES.  DONATIONS WHICH LEGITIMATELY
REPRESENT A CONSIDERATION FOR A BENEFIT FLOWING DIRECTLY TO THE
CORPORATION AS AN INCIDENT OF ITS BUSINESS ARE ALLOWABLE DEDUCTIONS
FROM GROSS INCOME.  FOR EXAMPLE, A STREET RAILWAY CORPORATION MAY
DONATE A SUM OF MONEY TO AN ORGANIZATION INTENDING TO HOLD A CONVENTION
IN THE CITY IN WHICH IT OPERATES, WITH THE REASONABLE EXPECTATION THAT
THE HOLDING OF SUCH CONVENTION WILL AUGMENT ITS INCOME THROUGH A
GREATER NUMBER OF PEOPLE USING THE CARS.  SUMS OF MONEY EXPENDED FOR
LOBBYING PURPOSES, THE PROMOTION OR DEFEAT OF LEGISLATION, THE
EXPLOITATION OF PROPAGANDA, INCLUDING ADVERTISING OTHER THAN TRADE
ADVERTISING, AND CONTRIBUTIONS FOR CAMPAIGN EXPENSES, ARE NOT
DEDUCTIBLE FROM GROSS INCOME."    IF THIS IS A VALID AND APPLICABLE
REGULATION, THE SUMS IN QUESTION WERE NOT DEDUCTIBLE AS "ORDINARY AND
NECESSARY EXPENSES" UNDER SEC. 23(A), SINCE THEY CLEARLY RUN AFOUL OF
THE PROHIBITION IN THE LAST SENTENCE OF THE REGULATION. 

PLAINLY, THE REGULATION WAS APPLICABLE.  THE BAN AGAINST DEDUCTIONS
OF AMOUNTS SPENT FOR "LOBBYING" AS "ORDINARY AND NECESSARY" EXPENSES OF
A CORPORATION DERIVED FROM A TREASURY DECISION IN 1915.  T.D. 2137, 17
TREAS. DEC., INT. REV., PP. 48, 57-58.  THAT PROHIBITION WAS CARRIED
INTO ART. 143 OF TREASURY REGULATIONS 33(REVISED, 1918) UNDER THE
HEADING OF "EXPENSES" IN THE SECTION ON "DEDUCTIONS."  N16  BEGINNING
IN 1921 THE REGULATION WAS ENTITLED "DONATIONS."  (ART. 562, TREASURY
REGULATIONS 45.)  AND IN THE REGULATIONS HERE IN QUESTION ART. 262
APPEARED UNDER SEC. 23(N), WHICH COVERED "CHARITABLE AND OTHER
CONTRIBUTIONS" BY INDIVIDUALS.  IT ASSUMED THAT FORM AND CONTENT IN
1921 AND APPEARED SINCE THEN WITHOUT CHANGE IN ALL SUCCESSIVE
REGULATIONS.  FN17  SEC. 23(N) AND SEC. 23(A) BOTH DEAL WITH
DEDUCTIONS; AND A "DONATION" BY A CORPORATION THOUGH NOT DEDUCTIBLE
UNDER THE FORMER MIGHT BE UNDER THE LATTER.  ART. 262 PURPORTS TO
SPECIFY WHEN A CERTAIN TYPE OF EXPENDITURE OR DONATION BY A CORPORATION
MAY OR MAY NOT BE DEDUCTED AS AN "ORDINARY AND NECESSARY" EXPENSE.  THE
ARGUMENT THAT IT WAS NOT APPLICABLE BECAUSE IT WAS NOT SPECIFICALLY
INCORPORATED UNDER SEC. 23(A) IS FRIVOLOUS. 

PETITIONER'S ARGUMENT THAT THE REGULATION IS INVALID LIKEWISE LACKS
SUBSTANCE.  THE WORDS "ORDINARY AND NECESSARY" ARE NOT SO CLEAR AND
UNAMBIGUOUS IN THEIR MEANING AND APPLICATION AS TO LEAVE NO ROOM FOR AN
INTERPRETATIVE REGULATION.  THE NUMEROUS CASES WHICH HAVE COME TO THIS
COURT ON THAT ISSUE BEAR WITNESS TO THAT.  WELCH V. HELVERING, 290 U.S.
111; DEPUTY V. DU PONT, 308 U.S. 488, AND CASES CITED.  NOR HAS THE
ADMINISTRATIVE AGENCY USURPED THE LEGISLATIVE FUNCTION BY CARVING OUT
THIS SPECIAL GROUP OF EXPENSES AND MAKING THEM NON-DEDUCTIBLE.  WE FAIL
TO FIND ANY INDICATION THAT SUCH A COURSE CONTRAVENED ANY CONGRESSIONAL
POLICY.  FN18  CONTRACTS TO SPREAD SUCH INSIDIOUS INFLUENCES THROUGH
LEGISLATIVE HALLS HAVE LONG BEEN CONDEMNED.  TRIST V. CHILD, 21 WALL. 
441; HAZELTON V. SHECKELLS, 202 U.S. 71.  WHETHER THE PRECISE
ARRANGEMENT HERE IN QUESTION WOULD VIOLATE THE RULE OF THOSE CASES IS
NOT MATERIAL.  THE POINT IS THAT THE GENERAL POLICY INDICATED BY THOSE
CASES NEED NOT BE DISREGARDED BY THE RULE-MAKING AUTHORITY IN ITS
SEGREGATION OF NON-DEDUCTIBLE EXPENSES.  THERE IS NO REASON WHY, IN
ABSENCE OF CLEAR CONGRESSIONAL ACTION TO THE CONTRARY, THE RULE-MAKING
AUTHORITY CANNOT EMPLOY THAT GENERAL POLICY IN DRAWING A LINE BETWEEN
LEGITIMATE BUSINESS EXPENSES AND THOSE ARISING FROM THAT FAMILY OF
CONTRACTS TO WHICH THE LAW HAS GIVEN NO SANCTION.  THE EXCLUSION OF THE
LATTER FROM "ORDINARY AND NECESSARY" EXPENSES CERTAINLY DOES NO
VIOLENCE TO THE STATUTORY LANGUAGE.  THE GENERAL POLICY BEING CLEAR IT
IS NOT FOR US TO SAY THAT THE LINE WAS TOO STRICTLY DRAWN.  AFFIRMED. 

FN1  JUDICIAL CODE SEC. 118, 28 U.S.C. SEC. 213; ACT OF JUNE 10,
1930, C. 438, 46 STAT. 538, 28 U.S.C. SEC. 213D; ACT OF JUNE 24, 1936,
C. 753, 49 STAT. 1903, 28 U.S.C. SEC. 213D-1. 

FN2  AS DISTINGUISHED FROM JUDGES RETIRED UNDER THE PROVISION OF SEC.
260 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 375. 

FN3  THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT HAS
PROMULGATED RULES IN ACCORD WITH THAT VIEW.  RULE 4(1) PROVIDES:  "THE
COURT CONSISTS OF THE CIRCUIT JUSTICE, WHEN IN ATTENDANCE, AND OF THE
CIRCUIT JUDGES OF THE CIRCUIT WHO ARE IN ACTIVE SERVICE.  DISTRICT
JUDGES AND RETIRED CIRCUIT JUDGES OF THE CIRCUIT SIT IN THE COURT WHEN
SPECIALLY DESIGNATED OR ASSIGNED AS PROVIDED BY LAW.  THREE JUDGES
SHALL SIT IN THE COURT TO HEAR ALL MATTERS, EXCEPT THOSE WHICH THE
COURT BY SPECIAL ORDER DIRECTS TO BE HEARD BY THE COURT EN BANC." 

FN4  SEC. 2 PROVIDED IN PART:  "THAT THERE IS HEREBY CREATED IN EACH
CIRCUIT A CIRCUIT COURT OF APPEALS, WHICH SHALL CONSIST OF THREE
JUDGES, OF WHOM TWO SHALL CONSTITUTE A QUORUM, AND WHICH SHALL BE A
COURT OF RECORD WITH APPELLATE JURISDICTION, AS IS HEREAFTER LIMITED
AND ESTABLISHED." 

FN5  SEC. 3 OF THAT ACT PROVIDED:  "IN CASE THE FULL COURT AT ANY
TIME SHALL NOT BE MADE UP BY THE ATTENDANCE OF THE CHIEF-JUSTICE OR AN
ASSOCIATE JUSTICE OF THE SUPREME COURT AND CIRCUIT JUDGES, ONE OR MORE
DISTRICT JUDGES WITHIN THE CIRCUIT SHALL BE COMPETENT TO SIT IN THE
COURT ACCORDING TO SUCH ORDER OR PROVISION AMONG THE DISTRICT JUDGES AS
EITHER BY GENERAL OR PARTICULAR ASSIGNMENT SHALL BE DESIGNATED BY THE
COURT  ...  "  AND IT SHOULD BE NOTED THAT AFTER THE PASSAGE OF THE ACT
OF MARCH 3, 1891, THERE WERE THREE CIRCUIT JUDGES IN THE SECOND CIRCUIT
AND TWO IN EACH OF THE OTHERS.  ACT OF APRIL 10, 1869, C. 22, SEC. 2,
16 STAT. 44; ACT OF MARCH 3, 1887, C. 347, 24 STAT. 492; ACT OF MARCH
3, 1891, C. 517, SEC. 1, 26 STAT. 826. 

FN6  S. REP. NO. 388, 61ST CONG., 2D SESS., PT. 1, P. 49, PT. 2, P.
310. 

FN7 "IN CASE THE CHIEF JUSTICE OR AN ASSOCIATE JUSTICE OF THE SUPREME
COURT SHALL ATTEND AT ANY SESSION OF THE CIRCUIT COURT OF APPEALS, HE
SHALL PRESIDE.  IN THE ABSENCE OF SUCH CHIEF JUSTICE, OR ASSOCIATE
JUSTICE, THE CIRCUIT JUDGES IN ATTENDANCE UPON THE COURT SHALL PRESIDE
IN THE ORDER OF THE SENIORITY OF THEIR RESPECTIVE COMMISSIONS.  IN CASE
THE FULL COURT AT ANY TIME SHALL NOT BE MADE UP BY THE ATTENDANCE OF
THE CHIEF JUSTICE OR THE ASSOCIATE JUSTICE, AND THE CIRCUIT JUDGES, ONE
OR MORE DISTRICT JUDGES WITHIN THE CIRCUIT SHALL SIT IN THE COURT
ACCORDING TO SUCH ORDER OR PROVISION AMONG THE DISTRICT JUDGES AS
EITHER BY GENERAL OR PARTICULAR ASSIGNMENT SHALL BE DESIGNATED BY THE
COURT  ...  " 

FN8  THUS THE SENATE REPORT, SUPRA NOTE 6, IN SPEAKING OF SEC.
118(SEC.  116 IN THE BILL) STATED, P. 50:  "  ...  THE SECTION STATES
IN CONCISE LANGUAGE THE NUMBER OF JUDGES NOW PROVIDED BY LAW FOR THE
SEVERAL JUDICIAL CIRCUITS." 

FN9  SEE THE LETTER BY ALBERT H. WALKER IN 74 CENTRAL L.J. 12. 

FN10  47 CONG. REC., PT. 3, P. 2736.  SENATOR SUTHERLAND ALSO SAID:
"IT HAS BEEN THOUGHT, AS I SAID, THAT THE EXISTING LAW DID NOT MAKE IT
QUITE CLEAR THAT THE CIRCUIT JUDGES SHALL BE THE CONSTITUTENT MEMBERS
OF THE CIRCUIT COURT OF APPEALS, AND IT IS TO REMOVE THAT DOUBT, AND
THAT ONLY, THAT THIS BILL HAS BEEN REPORTED FROM THE JUDICIARY
COMMITTEE."  ID., P. 2736.  H. REP. NO. 199, 62D CONG., 2D SESS.,
STATED, "THIS BILL DEALS WITH A DEFECT IN EXISTING LAW.  IT MAKES IT
CLEAR THAT THE CIRCUIT JUDGES SHALL CONSTITUTE THE CIRCUIT COURT OF
APPEALS."  AND SEE THE STATEMENTS ON THE FLOOR OF THE HOUSE BY
REPRESENTATIVE CLAYTON, CHAIRMAN OF THE HOUSE JUDICIARY COMMITTEE (48
CONG. REC., PT. 1, P. 667) AND REPRESENTATIVE MOON, CHAIRMAN OF THE
HOUSE COMMITTEE ON THE REVISIONS OF THE LAWS, WHO HAD BEEN IN CHARGE OF
THE HOUSE BILL PROVIDING FOR THE JUDICIAL CODE.  ID., P. 668. 

POSSIBLE INFERENCES LOOKING THE OTHER WAY ARE SUCH STATEMENTS BY
REPRESENTATIVE MANN THAT "IN THOSE CIRCUITS WHERE THERE WERE FOUR
CIRCUIT JUDGES, ONE OF THEM MIGHT BE PUT AT WORK IN THE DISTRICT
COURT."  48 CONG. REC., PT. 1, P. 667.  AND SEE 48 CONG. REC., PT. 2,
P. 1272.  YET SUCH STATEMENTS ARE NOT INCONSISTENT WITH THE CONCLUSION
THAT WHILE THE ORDINARY COMPLEMENT OF CIRCUIT JUDGES WOULD BE THREE,
ALL MIGHT SIT. 

FN11  IN THIS CONNECTION IT SHOULD BE NOTED THAT SEC. 120 OF THE
JUDICIAL CODE MAKES THE "CHIEF JUSTICE AND THE ASSOCIATE JUSTICES OF
THE SUPREME COURT ASSIGNED TO EACH CIRCUIT  ...  COMPETENT TO SIT AS
JUDGES OF THE CIRCUIT COURT OF APPEALS WITHIN THEIR RESPECTIVE
CIRCUITS."  THUS WHILE THE CIRCUIT COURT OF APPEALS IS COMPOSED
PRIMARILY OF CIRCUIT JUDGES, THE CIRCUIT JUSTICE IS MADE A "COMPONENT
PART" OF THAT COURT.  SEE STATEMENT BY REPRESENTATIVE MOON, OP. CIT.,
SUPRA, NOTE 10, P. 668. 

FN12  SEC. 122 OF THE JUDICIAL CODE (SEC. 120 IN THE BILL) GIVING THE
COURT POWER TO PRESCRIBE THE FORM OF WRITS AND OTHER PROCESS AND THE
FORM AND STYLE OF ITS SEAL, AND THE POWER TO MAKE RULES AND REGULATIONS
WAS STATED IN S. REP. NO. 388, SUPRA, NOTE 6, P. 51, TO REPRESENT
"EXISTING LAW." 

FN13  IT IS SUGGESTED BY RESPONDENT THAT IF THE CIRCUIT COURT OF
APPEALS MAY SIT EN BANC, DIFFICULTIES ARISE IN CONNECTION WITH THAT
PROVISION OF SEC. 120 OF THE JUDICIAL CODE WHICH READS: "IN CASE THE
FULL COURT AT ANY TIME SHALL NOT BE MADE UP BY THE ATTENDANCE OF THE
CHIEF JUSTICE OR THE ASSOCIATE JUSTICE, AND THE CIRCUIT JUDGES, ONE OR
MORE DISTRICT JUDGES WITHIN THE CIRCUIT SHALL SIT IN THE COURT
ACCORDING TO SUCH ORDER OR PROVISION AMONG THE DISTRICT JUDGES AS
EITHER BY GENERAL OR PARTICULAR ASSIGNMENT SHALL BE DESIGNATED BY THE
COURT  ...  "  THE DIFFICULTY SUGGESTED IS THAT SEC. 120 WOULD IMPLY
THAT, IF ALL THE CIRCUIT JUDGES COMPOSE THE "COURT," THEN DISTRICT
JUDGES SHOULD BE CALLED IN WHENEVER THE COURT WAS COMPOSED OF LESS THAN
THAT NUMBER.  AND THE ARGUMENT GOES FURTHER AND SUGGESTS THAT SINCE THE
CIRCUIT JUSTICE IS "COMPETENT TO SIT" (SEE NOTE 11, SUPRA) THEN A
DISTRICT COURT JUDGE COULD BE BROUGHT IN, WHEN THE CIRCUIT JUSTICE IS
ABSENT, TO MAKE UP THE "FULL COURT" EVEN THOUGH ALL CIRCUIT JUDGES
SAT.  THE ANSWER, HOWEVER, IS THAT "FULL COURT" AS USED IN SEC. 120
REFERS TO THE COURT WHICH CONTAINS THE PERMISSIBLE COMPLEMENT OF JUDGES
AS DISTINGUISHED FROM A QUORUM OF TWO.  UNDER OUR INTERPRETATION, A
BENCH OF THREE JUDGES IS THE PERMISSIBLE COMPLEMENT UNDER SEC. 117. 

FN14  BEGINNING IN 1938 THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT
JUDGES RECOMMENDED AN AMENDMENT TO THE CODE WHICH WOULD ENABLE A
MAJORITY OF THE CIRCUIT JUDGES IN CIRCUITS WHERE THERE WERE MORE THAN
THREE TO PROVIDE FOR A COURT OF MORE THAN THREE JUDGES.  REPORT OF THE
ATTORNEY GENERAL (1938) P. 23; ID. (1939) PP. 15-16; REPORT OF THE
JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES (1940) P. 7.  A BILL WAS
INTRODUCED DURING THE PRESENT SESSION OF CONGRESS IN BOTH THE HOUSE
(H.R. 3390) AND THE SENATE (S. 1053) TO AMEND SEC. 117 OF THE JUDICIAL
CODE BY ADDING THERETO THE FOLLOWING:  "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." 

THIS BILL HAS PASSED THE HOUSE.  87 CONG. REC. 8328.  IN THE HOUSE,
THE COMMITTEE ON THE JUDICIARY REPORTED THE BILL FAVORABLY (H.REP.  NO.
1246, 77TH CONG., 1ST SESS.) STATING: 

"UNDER EXISTING LAW PROVISION IS MADE THAT THERE SHALL BE IN EACH
CIRCUIT A CIRCUIT COURT OF APPEALS WHICH SHALL CONSIST OF THREE JUDGES,
OF WHOM TWO SHALL CONSTITUTE A QUORUM.  THE BILL ADDS A PROVISION 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. 

"IF THE COURT CAN SIT IN BANC THE SITUATION WHERE TWO THREE-JUDGE
COURTS MAY REACH CONFLICTING CONCLUSIONS IS OBVIATED.  IT ALSO WILL
OBVIATE THE SITUATION WHERE THERE ARE SEVEN MEMBERS OF THE COURT AND AS
SOMETIMES HAPPENS A DECISION OF TWO JUDGES (THERE HAVING BEEN A
DISSENT) SETS THE PRECEDENT FOR THE REMAINING JUDGES.  A SIMILAR RESULT
WOULD BE AVOIDED WITH A COURT OF FIVE JUDGES. 

"IT SEEMS DESIRABLE THAT WHERE THE JUDGES FEEL IT ADVISABLE THEY
MIGHT SIT IN BANC FOR HEARING PARTICULAR CASES.  LEGISLATION TO THIS
EFFECT HAS BEEN RECOMMENDED BY THE JUDICIAL CONFERENCE OF SENIOR
CIRCUIT JUDGES SINCE 1938, AND AT ITS JANUARY 1941 SESSION THE
CONFERENCE APPROVED THE FORM OF THE PRESENT BILL." 

BUT WE DO NOT DEDUCE THAT THIS EFFORT AT CLARIFICATION WAS OR
PURPORTED TO BE ANY DEFINITIVE INTERPRETATION THAT SEC. 117 AS IT
STANDS PROHIBITS A CIRCUIT COURT OF APPEALS OF MORE THAN THREE JUDGES
FROM SITTING EN BANC. 

FN15  SEE H. REP. NO. 1246, SUPRA, NOTE 14; 69 CENTRAL L.J. 217.  AND
SEE THE TESTIMONY OF CHIEF JUSTICE TAFT AND MR. JUSTICE VAN DEVANTER,
HEARINGS, COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, 70TH
CONG., 2D SESS., SERIAL 23, PT. 2, ON H.R. 5690, 13567, 13757, PP. 69,
72. 

FN16  ART. 143 PROVIDED:  "LOBBYING EXPENSES.   - SUMS OF MONEY
EXPENDED FOR LOBBYING PURPOSES, THE PROMOTION OR DEFEAT OF LEGISLATION,
THE EXPLOITATION OF PROPAGANDA, AND CONTRIBUTIONS FOR CAMPAIGN EXPENSES
ARE HELD NOT TO BE AN ORDINARY AND NECESSARY EXPENSE IN THE OPERATION
AND MAINTENANCE OF THE BUSINESS OF A CORPORATION, AND ARE THEREFORE NOT
DEDUCTIBLE FROM GROSS INCOME IN ARRIVING AT THE NET INCOME UPON WHICH
THE INCOME TAX IS COMPUTED." 

FN17  ART. 562, REGULATIONS 62, REVENUE ACT OF 1921; ART. 562,
REGULATIONS 65, REVENUE ACT OF 1924; ART. 562, REGULATIONS 69, REVENUE
ACT OF 1926; ART. 262, REGULATIONS 74, REVENUE ACT OF 1928. 

FN18  IN THE REVENUE ACT OF 1936(26 U.S.C. SEC. 23(Q), 49 STAT. 1648)
CONGRESS SPECIFICALLY PROVIDED FOR DEDUCTIONS OF CERTAIN CONTRIBUTIONS
BY CORPORATIONS TO SPECIFIED CORPORATIONS, TRUSTS, FUNDS, OR
FOUNDATIONS, "NO SUBSTANTIAL PART OF THE ACTIVITIES OF WHICH IS
CARRYING ON PROPAGANDA, OR OTHERWISE ATTEMPTING, TO INFLUENCE
LEGISLATION."  AND SEE THE REVENUE ACT OF 1938, 26 U.S.C. SEC. 23(Q),
52 STAT. 447.    MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION
OR DISPOSITION OF THIS CASE. 
..END :























U.S. V. SANTA FE PACIFIC R. CO., 314 U.S. 339 


NO. 23.  ARGUED NOVEMBER 12, 13, 1941.  - DECIDED DECEMBER 8, 1941.  -
114 F.2D 420, AFFIRMED, WITH A MODIFICATION. 


1.  LANDS INCLUDED IN THE GRANT MADE TO THE ATLANTIC & PACIFIC
RAILROAD COMPANY BY THE ACT OF JULY 27, 1866, WERE SUBJECT TO ANY
EXISTING INDIAN RIGHT OF OCCUPANCY UNTIL SUCH RIGHT WAS EXTINGUISHED BY
THE UNITED STATES THROUGH A VOLUNTARY CESSION OF THE INDIANS, AS
PROVIDED BY SEC. 2 OF THE ACT.  P. 344. 

2.  INDIAN OCCUPANCY NECESSARY TO ESTABLISH ABORIGINAL POSSESSION IS
A QUESTION OF FACT.  P. 345. 

3.  "INDIAN TITLE" EXISTS WHERE IT IS ESTABLISHED AS A FACT THAT THE
LANDS IN QUESTION WERE INCLUDED IN THE ANCESTRAL HOME OF A TRIBE OF
INDIANS, IN THE SENSE THAT THEY CONSTITUTED DEFINABLE TERRITORY
OCCUPIED EXCLUSIVELY BY THAT TRIBE AS DISTINGUISHED FROM BEING WANDERED
OVER BY MANY TRIBES.  P. 345. 

4.  BY THE POLICY OF THE GOVERNMENT, THE INDIAN RIGHT OF OCCUPANCY IS
AS SACRED AS THE FEE AND CAN BE INTERFERED WITH OR TERMINATED ONLY BY
THE UNITED STATES.  P. 345. 

5.  LANDS WITHIN THE MEXICAN CESSION WERE NOT EXCEPTED FROM THIS
POLICY.  P. 345. 

6.  A TRIBAL CLAIM TO ANY PARTICULAR LANDS NEED NOT BE BASED UPON
TREATY, STATUTE, OR OTHER FORMAL GOVERNMENTAL ACTION.  P. 347. 

7.  IN THE MATTER OF THE EXTINGUISHMENT OF INDIAN TITLE BASED UPON
ABORIGINAL OCCUPANCY, THE POWER OF CONGRESS IS SUPREME AND ITS EXERCISE
IS NOT OPEN TO INQUIRY BY THE COURTS.  P. 347. 

8.  IF THE RIGHT OF OCCUPANCY OF THE WALAPAI INDIANS TO LANDS WITHIN
THE AREA GRANTED TO THE ATLANTIC & PACIFIC RAILROAD COMPANY IN ARIZONA
WAS NOT EXTINGUISHED PRIOR TO THE DEFINITE LOCATION OF THE RAILROAD IN
1872, THEN THE GRANTEE TOOK THE FEE SUBJECT TO THE ENCUMBRANCE OF
INDIAN TITLE.  ON THAT DATE THE TITLE OF THE RAILROAD ATTACHED AS OF
JULY 27, 1866, THE DATE OF THE ACT.  P. 347. 

9. THE ACT OF FEBRUARY 27, 1851, BY EXTENDING THE INDIAN TRADE AND
INTERCOURSE ACT OF JUNE 30, 1834, OVER THE INDIAN TRIBES IN THE
TERRITORIES OF NEW MEXICO (THEN INCLUDING ARIZONA) AND UTAH, EXHIBITED
THE DESIRE OF CONGRESS TO CONTINUE IN THOSE TERRITORIES THE GENERAL
POLICY OF THE GOVERNMENT TO RECOGNIZE THE INDIAN RIGHT OF OCCUPANCY,
BUT DID NOT CREATE SUCH RIGHTS WHERE THEY DID NOT PREVIOUSLY EXIST.  P.
347. 

10.  THE ACT OF JULY 22, 1854, WHICH ESTABLISHED THE OFFICE OF
SURVEYOR GENERAL OF NEW MEXICO, ETC., AND THE ACT OF JULY 15, 1870,
WHICH DIRECTED THE SURVEYOR GENERAL OF ARIZONA (THEN SEPARATED AS A
TERRITORY FROM NEW MEXICO) TO ASCERTAIN AND REPORT UPON LAND CLAIMS
UNDER THE LAWS, USAGES AND CUSTOMS OF SPAIN AND MEXICO FOR THE
INFORMATION OF CONGRESS, DID NOT EXTINGUISH ANY INDIAN TITLE BASED UPON
ABORIGINAL OCCUPANCY, SUCH AS MAY HAVE BEEN HAD BY THE WALAPAI
INDIANS.  P. 348. 

11.  THE ACT OF MARCH 3, 1865, WHICH PROVIDED FOR SETTING ASIDE A
TRACT OF LAND IN ARIZONA AS A RESERVATION FOR CERTAIN TRIBES ON THE
COLORADO RIVER, INCLUDING THE WALAPAIS, WAS NOT INTENDED, IN DEFAULT OF
THEIR VOLUNTARY ACCEPTANCE, TO EXTINGUISH THEIR RIGHT OF OCCUPANCY OF
OTHER LANDS.  P. 351. 

FORCIBLE REMOVAL OF THE WALAPAIS TO THIS RESERVATION IN 1874 WAS NOT
SANCTIONED BY CONGRESS AND COULD NOT AFFECT THEIR RIGHT OF OCCUPANCY
OVER LANDS OUTSIDE THE RESERVATION. 

12.  THE CREATION OF THE WALAPAI INDIAN RESERVATION IN ARIZONA BY
EXECUTIVE ORDER, JANUARY 4, 1883, AT THE REQUEST OF THE WALAPAIS, AND
ITS ACCEPTANCE BY THEM, AMOUNTED TO A RELINQUISHMENT OF ANY TRIBAL
CLAIMS WHICH THEY MIGHT HAVE HAD TO LANDS OUTSIDE THAT RESERVATION, AND
THAT RELINQUISHMENT WAS TANTAMOUNT TO AN EXTINGUISHMENT BY "VOLUNTARY
CESSION," WITHIN THE MEANING OF SEC. 2 OF THE ACT OF JULY 27, 1866,
SUPRA.  P. 357. 

13.  THE UNITED STATES IS ENTITLED TO AN ACCOUNTING FROM THE RAILROAD
COMPANY ON BEHALF OF THE WALAPAIS FOR ANY RENTS, ISSUES AND PROFITS
DERIVED FROM LEASING OR USE OF LANDS IN THEIR RESERVATION WHICH CAN BE
PROVED TO HAVE BEEN OCCUPIED BY THE WALAPAIS FROM TIME IMMEMORIAL.  P.
359. 

UNITED STATES, AS GUARDIAN OF THE HUALPAI INDIANS OF ARIZONA, V. SANTA
FE PACIFIC RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 312 U.S. 675, TO REVIEW A DECREE AFFIRMING A DECREE WHICH
DISMISSED A BILL, BY THE GOVERNMENT, SEEKING TO ESTABLISH THE RIGHT OF
THE WALAPAI INDIANS TO LANDS CLAIMED BY THE RAILROAD COMPANY INSIDE AND
OUTSIDE OF THE INDIANS' RESERVATION, AND FOR AN ACCOUNTING. 

THE TERM "INDIAN TITLE" USED IN SEC. 2 OF THE ACT OF 1866, HAD A WELL
UNDERSTOOD MEANING.  IT CONNOTED THE INDIAN POSSESSORY RIGHT BASED ON
ABORIGINAL OCCUPANCY, WHETHER OR NOT THAT OCCUPANCY HAD BEEN RECOGNIZED
BY TREATY, STATUTE, OR OTHERWISE.  JOHNSON V. MCINTOSH, 8 WHEAT.  543;
UNITED STATES V. SHOSHONE TRIBE, 304 U.S. 111.  THE ACT APPLIED WITHIN
A ROUGHLY LOCATED AREA FROM MISSOURI TO THE PACIFIC COAST, AND THE TERM
"INDIAN TITLE" APPLIED EQUALLY TO ALL LANDS WITHIN THAT AREA AND HENCE
TO ALL INDIAN RIGHTS OF OCCUPANCY WHICH THEN EXISTED WITHIN THAT AREA. 
THE PROVISION HAD THE SAME MEANING AND APPLICATION WITH RESPECT TO
LANDS IN THE MEXICAN CESSION AREA AS WITH RESPECT TO ANY OTHER LANDS. 
UNITED STATES V. CANDELARIA, 271 U.S. 432.  THE RIGHT WAS PRESERVED AND
SAFEGUARDED UNTIL EXTINGUISHED BY THE UNITED STATES IN CONFORMITY WITH
THE PROVISIONS OF THE ACT.  BUTTZ V. NORTHERN PACIFIC RAILROAD, 119
U.S. 55. 

THIS COURT HAS CONSISTENTLY HELD THAT, IN THE ABSENCE OF EXPRESS
LANGUAGE TO THE CONTRARY, A FEDERAL GRANT OF PUBLIC LANDS DOES NOT
CONSTITUTE AN EXTINGUISHMENT OF INDIAN OCCUPANCY RIGHTS.  JOHNSON V.
MCINTOSH, SUPRA, 574. 

THIS COURT HAS CONTINUOUSLY RECOGNIZED THAT ABORIGINAL POSSESSION
CREATES A POSSESSORY RIGHT LEGALLY ENFORCEABLE AGAINST EVERYONE EXCEPT
THE UNITED STATES.  WORCESTER V. GEORGIA, 6 PET. 515; MITCHEL V. UNITED
STATES, 9 PET. 711; CHOTEAU V. MOLONY, 16 HOW.  203; HOLDEN V. JOY, 17
WALL.  211, 244; BUTTZ V. NORTHERN PACIFIC RAILROAD, 119 U.S. 55;
CRAMER V. UNITED STATES, 261 U.S. 219. 

THIS COURT HAS CONSISTENTLY REJECTED ATTEMPTS TO EXCLUDE INDIANS OF
THE MEXICAN CESSION AREA FROM THE BENEFIT OF RULES GENERALLY APPLICABLE
OUTSIDE THAT AREA FOR THE PROTECTION OF INDIAN RIGHTS.  UNITED STATES
V. JOSEPH, 94 U.S. 614; UNITED STATES V. CHAVEZ, 290 U.S. 357; UNITED
STATES V. SANDOVAL, 231 U.S. 28; UNITED STATES V. CANDELARIA, 271 U.S.
432; UNITED STATES V. KAGAMA, 118 U.S. 375; CRAMER V. UNITED STATES,
SUPRA; LANE V. PUEBLO OF SANTA ROSA, 249 U.S. 110; PUEBLO OF SANTA ROSA
V. FALL, 273 U.S. 315, 321. 

FEDERAL LEGISLATION APPLICABLE TO THE WALAPAI TRIBE AS WELL AS TO
OTHER TRIBES PROTECTS THE INDIAN RIGHT OF OCCUPANCY BASED ON ABORIGINAL
POSSESSION.  (REFERRING TO NUMEROUS STATUTES.) 

EXCEPT IN THE PRESENT CASE, NO CONSIDERED DECISION HAS EVER BEEN MADE
BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AS TO THE RELATIVE RIGHTS OF
THE WALAPAI TRIBE AND THE RESPONDENT RAILROAD. 

SPANISH AND MEXICAN LAW WAS AT LEAST AS GENEROUS IN ITS RECOGNITION
OF THE LEGALITY OF INDIAN ABORIGINAL OCCUPANCY AS THE LAW OF THE UNITED
STATES.  INDEED, EXPERTS ON THIS SUBJECT HAVE CONCLUDED THAT THE LAW OF
THE UNITED STATES, RECOGNIZING THE OCCUPANCY RIGHTS OF INDIAN TRIBES,
WAS DERIVED FROM SPANISH SOURCES.  SEE JOHNSON V. MCINTOSH, 8 WHEAT. 
543, 573; WORCESTER V. GEORGIA, 6 PET. 515, 546; CHOTEAU V. MOLONY, 16
HOW.  203, 229; MITCHEL V. UNITED STATES, 9 PET. 711, 759; CARINO V.
INSULAR GOVERNMENT, 212 U.S. 449. 

SUCH RIGHTS OF THE WALAPAI TRIBE AS EXISTED ON JULY 27, 1866, HAVE
NOT BEEN EXTINGUISHED OR ABANDONED.  (REFERRING TO THE 1870 ACT
APPOINTING A SURVEYOR GENERAL FOR ARIZONA; THE TEMPORARY REMOVAL IN
1874 OF PART OF THE TRIBE TO THE COLORADO RIVER RESERVATION; THE
ESTABLISHMENT OF AN EXECUTIVE ORDER RESERVATION OF THE WALAPAI INDIANS
IN 1883; THE 1925 EXCHANGE ACT.) 

THE UNITED STATES AND THE WALAPAI TRIBE HAVE BEEN DEPRIVED OF A RIGHT
TO TRIAL UPON ISSUES OF FACT, THROUGH A MISAPPLICATION OF THE DOCTRINE
OF JUDICIAL NOTICE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT BY THE UNITED STATES, IN ITS OWN RIGHT AND AS
GUARDIAN OF THE INDIANS OF THE WALAPAI (HUALPAI) TRIBE IN ARIZONA (28
U.S.C. SEC. 41(1), SEC. 24 JUDICIAL CODE) TO ENJOIN RESPONDENT FROM
INTERFERING WITH THE POSSESSION AND OCCUPANCY BY THE INDIANS OF CERTAIN
LAND IN NORTHWESTERN ARIZONA.  RESPONDENT CLAIMS FULL TITLE TO THE
LANDS IN QUESTION UNDER THE GRANT TO ITS PREDECESSOR, THE ATLANTIC AND
PACIFIC RAILROAD CO., PROVIDED FOR IN THE ACT OF JULY 27, 1866, 14
STAT. 292.  THE BILL SOUGHT TO ESTABLISH THAT RESPONDENT'S RIGHTS UNDER
THE GRANT OF 1866 ARE SUBJECT TO THE INDIANS' RIGHT OF OCCUPANCY BOTH
INSIDE AND OUTSIDE THEIR PRESENT RESERVATION WHICH WAS ESTABLISHED BY
THE EXECUTIVE ORDER OF PRESIDENT ARTHUR, JANUARY 4, 1883.  THE BILL
CONSISTS OF TWO CAUSES OF ACTION - THE FIRST RELATING TO LANDS INSIDE,
AND THE SECOND, TO LANDS OUTSIDE, THAT RESERVATION.  THE BILL PRAYED,
INTER ALIA, THAT TITLE BE QUIETED AND THAT RESPONDENT "ACCOUNT FOR ALL
RENTS, ISSUES AND PROFITS DERIVED FROM THE LEASING, RENTING OR USE OF
THE LANDS SUBJECT TO SAID RIGHT OF OCCUPANCY" BY THE INDIANS. 
RESPONDENT MOVED TO DISMISS ON THE GROUND THAT THE FACTS ALLEGED WERE
"INSUFFICIENT TO CONSTITUTE A VALID CAUSE OF ACTION IN EQUITY."  THE
DISTRICT COURT GRANTED THAT MOTION.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  114 F.2D 420.  WE GRANTED THE PETITION FOR CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE PROBLEMS RAISED IN THE ADMINISTRATION
OF THE INDIAN LAWS AND THE LAND GRANTS. 

SEC. 2 OF THE ACT OF JULY 27, 1866, THE ACT UNDER WHICH RESPONDENT'S
TITLE TO THE LANDS IN QUESTION DERIVED,  FN1  PROVIDED:  "THE UNITED
STATES SHALL EXTINGUISH, AS RAPIDLY AS MAY BE CONSISTENT WITH PUBLIC
POLICY AND THE WELFARE OF THE INDIANS, AND ONLY BY THEIR VOLUNTARY
CESSION, THE INDIAN TITLE TO ALL LANDS FALLING UNDER THE OPERATION OF
THIS ACT AND ACQUIRED IN THE DONATION TO THE ROAD NAMED IN THE ACT." 

BASIC TO THE PRESENT CAUSES OF ACTION IS THE THEORY THAT THE LANDS IN
QUESTION WERE THE ANCESTRAL HOME OF THE WALAPAIS, THAT SUCH OCCUPANCY
CONSTITUTED "INDIAN TITLE" WITHIN THE MEANING OF SEC. 2 OF THE 1866
ACT, WHICH THE UNITED STATES AGREED TO EXTINGUISH, AND THAT IN ABSENCE
OF SUCH EXTINGUISHMENT THE GRANT TO THE RAILROAD "CONVEYED THE FEE
SUBJECT TO THIS RIGHT OF OCCUPANCY."  BUTTZ V. NORTHERN PACIFIC
RAILROAD, 119 U.S. 55, 66.  THE CIRCUIT COURT OF APPEALS CONCLUDED THAT
THE UNITED STATES HAD NEVER RECOGNIZED SUCH POSSESSORY RIGHTS OF
INDIANS WITHIN THE MEXICAN CESSION  FN2  AND THAT IN ABSENCE OF SUCH
RECOGNITION THE WALAPAIS HAD NO SUCH RIGHT GOOD AGAINST GRANTEES OF THE
UNITED STATES. 

OCCUPANCY NECESSARY TO ESTABLISH ABORIGINAL POSSESSION IS A QUESTION
OF FACT TO BE DETERMINED AS ANY OTHER QUESTION OF FACT.  IF IT WERE
ESTABLISHED AS A FACT THAT THE LANDS IN QUESTION WERE, OR WERE INCLUDED
IN, THE ANCESTRAL HOME OF THE WALAPAIS IN THE SENSE THAT THEY
CONSTITUTED DEFINABLE TERRITORY OCCUPIED EXCLUSIVELY BY THE WALAPAIS
(AS DISTINGUISHED FROM LANDS WANDERED OVER BY MANY TRIBES), THEN THE
WALAPAIS HAD "INDIAN TITLE" WHICH, UNLESS EXTINGUISHED, SURVIVED THE
RAILROAD GRANT OF 1866.  BUTTZ V. NORTHERN PACIFIC RAILROAD, SUPRA. 

"UNQUESTIONABLY IT HAS BEEN THE POLICY OF THE FEDERAL GOVERNMENT FROM
THE BEGINNING TO RESPECT THE INDIAN RIGHT OF OCCUPANCY, WHICH COULD
ONLY BE INTERFERED WITH OR DETERMINED BY THE UNITED STATES."  CRAMER V.
UNITED STATES, 261 U.S. 219, 227.  THIS POLICY WAS FIRST RECOGNIZED IN
JOHNSON V. M'INTOSH, 8 WHEAT.  543, AND HAS BEEN REPEATEDLY
REAFFIRMED.  WORCESTER V. GEORGIA, 6 PET. 515; MITCHEL V. UNITED
STATES, 9 PET. 711; CHOUTEAU V. MOLONY, 16 HOW.  203; HOLDEN V. JOY, 17
WALL.  211; BUTTZ V. NORTHERN PACIFIC RAILROAD, SUPRA; UNITED STATES V.
SHOSHONE TRIBE, 304 U.S. 111.  AS STATED IN MITCHEL V. UNITED STATES,
SUPRA, P. 746, INDIAN "RIGHT OF OCCUPANCY IS CONSIDERED AS SACRED AS
THE FEE SIMPLE OF THE WHITES."  WHATEVER MAY HAVE BEEN THE RIGHTS OF
THE WALAPAIS UNDER SPANISH LAW, THE CRAMER CASE ASSUMED THAT LANDS
WITHIN THE MEXICAN CESSION WERE NOT EXCEPTED FROM THE POLICY TO RESPECT
INDIAN RIGHT OF OCCUPANCY.  THOUGH THE CRAMER CASE INVOLVED THE PROBLEM
OF INDIVIDUAL INDIAN OCCUPANCY, THIS COURT STATED THAT SUCH OCCUPANCY
WAS NOT TO BE TREATED DIFFERENTLY FROM "THE ORIGINAL NOMADIC TRIBAL
OCCUPANCY."  (P. 227.)  PERHAPS THE ASSUMPTION THAT ABORIGINAL
POSSESSION WOULD BE RESPECTED IN THE MEXICAN CESSION WAS, LIKE THE
GENERALIZATIONS IN JOHNSON V. M'INTOSH, SUPRA, NOT NECESSARY FOR THE
NARROW HOLDING OF THE CASE.  BUT SUCH GENERALIZATIONS HAVE BEEN SO
OFTEN AND SO LONG REPEATED AS RESPECTS LAND UNDER THE PRIOR SOVEREIGNTY
OF THE VARIOUS EUROPEAN NATIONS, INCLUDING SPAIN,  FN3  THAT, LIKE
OTHER RULES GOVERNING TITLES TO PROPERTY (UNITED STATES V. TITLE
INSURANCE & TRUST CO., 265 U.S. 472, 486-487) THEY SHOULD NOW BE
CONSIDERED NO LONGER OPEN.  FURTHERMORE, TREATIES  FN4  NEGOTIATED WITH
INDIAN TRIBES, WHOLLY OR PARTIALLY WITHIN THE MEXICAN CESSION, FOR
DELIMITATION OF THEIR OCCUPANCY RIGHTS OR FOR THE SETTLEMENT AND
ADJUSTMENT OF THEIR BOUNDARIES, CONSTITUTE CLEAR RECOGNITION THAT NO
DIFFERENT POLICY AS RESPECTS ABORIGINAL POSSESSION OBTAINED IN THIS
AREA THAN IN OTHER AREAS.  AND SEE UNITED STATES V. KAGAMA, 118 U.S.
375, 381.  CERTAINLY IT WOULD TAKE PLAIN AND UNAMBIGUOUS ACTION TO
DEPRIVE THE WALAPAIS OF THE BENEFITS OF THAT POLICY.  FOR IT WAS
FOUNDED ON THE DESIRE TO MAINTAIN JUST AND PEACEABLE RELATIONS WITH
INDIANS.  THE REASONS FOR ITS APPLICATION TO OTHER TRIBES ARE NO LESS
APPARENT IN CASE OF THE WALAPAIS, A SAVAGE TRIBE WHICH IN EARLY DAYS
CAUSED THE MILITARY NO END OF TROUBLE. 

NOR IS IT TRUE, AS RESPONDENT URGES, THAT A TRIBAL CLAIM TO ANY
PARTICULAR LANDS MUST BE BASED UPON A TREATY, STATUTE, OR OTHER FORMAL
GOVERNMENT ACTION.  AS STATED IN THE CRAMER CASE, "THE FACT THAT SUCH
RIGHT OF OCCUPANCY FINDS NO RECOGNITION IN ANY STATUTE OR OTHER FORMAL
GOVERNMENTAL ACTION IS NOT CONCLUSIVE."  261 U.S. AT 229. 

EXTINGUISHMENT OF INDIAN TITLE BASED ON ABORIGINAL POSSESSION IS OF
COURSE A DIFFERENT MATTER.  THE POWER OF CONGRESS IN THAT REGARD IS
SUPREME.  THE MANNER, METHOD AND TIME OF SUCH EXTINGUISHMENT RAISE
POLITICAL, NOT JUSTICIABLE, ISSUES.  BUTTZ V. NORTHERN PACIFIC
RAILROAD, SUPRA, P. 66.  AS STATED BY CHIEF JUSTICE MARSHALL IN JOHNSON
V. M'INTOSH, SUPRA, P. 586, "THE EXCLUSIVE RIGHT OF THE UNITED STATES
TO EXTINGUISH" INDIAN TITLE HAS NEVER BEEN DOUBTED.  AND WHETHER IT BE
DONE BY TREATY, BY THE SWORD, BY PURCHASE, BY THE EXERCISE OF COMPLETE
DOMINION ADVERSE TO THE RIGHT OF OCCUPANCY, OR OTHERWISE, ITS JUSTNESS
IS NOT OPEN TO INQUIRY IN THE COURTS.  BEECHER V. WETHERBY, 95 U.S.
517, 525. 

IF THE RIGHT OF OCCUPANCY OF THE WALAPAIS WAS NOT EXTINGUISHED PRIOR
TO THE DATE OF DEFINITE LOCATION OF THE RAILROAD IN 1872, THEN THE
RESPONDENT'S PREDECESSOR TOOK THE FEE SUBJECT TO THE ENCUMBRANCE OF
INDIAN TITLE.  BUTTZ V. NORTHERN PACIFIC RAILROAD, SUPRA.  FOR ON THAT
DATE THE TITLE OF RESPONDENT'S PREDECESSOR ATTACHED AS OF JULY 27,
1866.  UNITED STATES V. SOUTHERN PACIFIC R. CO., 146 U.S. 570; NELSON
V. NORTHERN PACIFIC RY. CO., 188 U.S. 108. 

CERTAINLY, PRIOR TO 1865 ANY RIGHT OF OCCUPANCY OF THE WALAPAIS TO
THE LANDS IN QUESTION WAS NOT EXTINGUISHED; NOR WAS THE POLICY OF
RESPECTING SUCH INDIAN TITLE CHANGED.  THE INDIAN TRADE AND INTERCOURSE
ACT OF JUNE 30, 1834, 4 STAT. 729, WAS EXTENDED OVER "THE INDIAN TRIBES
IN THE TERRITORIES OF NEW MEXICO AND UTAH" BY SEC. 7 OF THE ACT OF
FEBRUARY 27, 1851, 9 STAT. 574, 587.  THE 1834 ACT, WHICH DERIVED FROM
THE ACT OF JULY 22, 1790, 1 STAT. 137, MADE IT AN OFFENSE TO DRIVE
STOCK TO RANGE OR FEED "ON ANY LAND BELONGING TO ANY INDIAN OR INDIAN
TRIBE, WITHOUT THE CONSENT OF SUCH TRIBE" (SEC. 9); GAVE THE
SUPERINTENDENT OF INDIAN AFFAIRS AUTHORITY "TO REMOVE FROM THE INDIAN
COUNTRY ALL PERSONS FOUND THEREIN CONTRARY TO LAW" (SEC. 10); MADE IT
UNLAWFUL TO SETTLE ON "ANY LANDS BELONGING, SECURED, OR GRANTED BY
TREATY WITH THE UNITED STATES TO ANY INDIAN TRIBE" (SEC. 11); AND MADE
INVALID ANY CONVEYANCE OF LANDS "FROM ANY INDIAN NATION OR TRIBE OF
INDIANS."  SEC. 12.  THE ACT OF 1851 OBVIOUSLY DID NOT CREATE ANY
INDIAN RIGHT OF OCCUPANCY WHICH DID NOT PREVIOUSLY EXIST.  BUT IT
PLAINLY INDICATES THAT IN 1851 CONGRESS DESIRED TO CONTINUE IN THESE
TERRITORIES THE UNQUESTIONED GENERAL POLICY OF THE FEDERAL GOVERNMENT
TO RECOGNIZE SUCH RIGHT OF OCCUPANCY.  AS STATED BY CHIEF JUSTICE
MARSHALL IN WORCESTER V. GEORGIA, SUPRA, 6 PET. P. 557, THE INDIAN
TRADE AND INTERCOURSE ACTS "MANIFESTLY CONSIDER THE SEVERAL INDIAN
NATIONS AS DISTINCT POLITICAL COMMUNITIES, HAVING TERRITORIAL
BOUNDARIES, WITHIN WHICH THEIR AUTHORITY IS EXCLUSIVE, AND HAVING A
RIGHT TO ALL THE LANDS WITHIN THOSE BOUNDARIES, WHICH IS NOT ONLY
ACKNOWLEDGED, BUT GUARANTIED BY THE UNITED STATES." 

THE COURT BELOW LAID CONSIDERABLE STRESS UPON THE ACT OF JULY 22,
1854, 10 STAT. 308, AS INDICATING THAT CONGRESS RECOGNIZED NO RIGHTS OF
THE INDIANS IN ARIZONA AND NEW MEXICO OTHER THAN THOSE EXISTING UNDER
MEXICAN LAW OR CREATED BY RESERVATIONS AFTER THE MEXICAN CESSION.  BUT
WE DO NOT AGREE THAT, SO FAR AS THE RESPONDENT'S RIGHTS ARE CONCERNED,
THAT ACT INSTITUTED A POLICY OF NON-RECOGNITION OF INDIAN TITLE.  NOR
DO WE THINK THAT IT EFFECTED ANY EXTINGUISHMENT OF THAT TITLE.    THE
ACT OF 1854 ESTABLISHED THE OFFICE OF SURVEYOR GENERAL OF NEW MEXICO. 
IT DONATED LAND TO CERTAIN QUALIFIED CITIZENS (SEC. 2) WITH THE
EXCEPTION, INTER ALIA, OF "MILITARY OR OTHER RESERVATIONS."  SEC. 4. 
UNLIKE THE PRE-EMPTION ACT OF SEPTEMBER 4, 1841, SEC. 10, 5 STAT. 453,
THE 1854 ACT DID NOT EXTEND ONLY TO "THE PUBLIC LANDS TO WHICH THE
INDIAN TITLE HAD BEEN AT THE TIME OF SUCH SETTLEMENT EXTINGUISHED."  IT
DID PROVIDE, HOWEVER, THAT "ANY OF THE LANDS NOT TAKEN" UNDER IT SHOULD
"BE SUBJECT TO THE OPERATION" OF THE PRE-EMPTION ACT.  SEC. 7. 
MOREOVER, THE 1854 ACT PROVIDED AS RESPECTS THE TERRITORIES OF NEBRASKA
AND KANSAS THAT THE GRANTS SHOULD EXTEND ONLY TO LANDS "TO WHICH THE
INDIAN TITLE HAS BEEN OR SHALL BE EXTINGUISHED."  SEC. 12. 

FROM THAT IT IS ARGUED THAT SINCE CONGRESS RECOGNIZED INDIAN TITLE IN
NEBRASKA AND KANSAS AND UNDER THE PRE-EMPTION ACT BUT DID NOT RECOGNIZE
IT AS RESPECTS THE LANDS IN THIS AREA, A SHIFT OF POLICY IN THE MEXICAN
CESSION WAS INDICATED.  THE ISSUE HERE, HOWEVER, IS NOT BETWEEN A
SETTLER CLAIMING UNDER THE 1854 ACT AND THE WALAPAIS.  WHETHER IN SUCH
A CASE THE 1854 ACT SHOULD BE CONSTRUED AS EXTINGUISHING ANY INDIAN
TITLE TO LAND TAKEN UNDER IT WE NEED NOT DECIDE.  FN5 RESPONDENT DOES
NOT CLAIM UNDER THAT ACT AND HENCE CAN DERIVE NO RIGHTS FROM IT. 

SOME STRESS IS LIKEWISE PLACED ON SEC. 8 OF THE ACT OF JULY 22, 1854,
AND ON THE ACT OF JULY 15, 1870, 16 STAT. 291, 304.  THE FORMER
REQUIRED THE SURVEYOR GENERAL FOR NEW MEXICO "TO ASCERTAIN THE ORIGIN,
NATURE, CHARACTER, AND EXTENT OF ALL CLAIMS TO LANDS UNDER THE LAWS,
USAGES, AND CUSTOMS OF SPAIN AND MEXICO"; AND TO MAKE A REPORT "ON ALL
SUCH CLAIMS AS ORIGINATED BEFORE THE CESSION OF THE TERRITORY TO THE
UNITED STATES BY THE TREATY OF GUADALUPE HIDALGO  ...  DENOTING THE
VARIOUS GRADES OF TITLE, WITH HIS DECISION AS TO THE VALIDITY OR
INVALIDITY OF EACH OF THE SAME UNDER THE LAWS, USAGES, AND CUSTOMS OF
THE COUNTRY BEFORE ITS CESSION TO THE UNITED STATES."  SUCH REPORT WAS
TO BE "LAID BEFORE CONGRESS FOR SUCH ACTION THEREON AS MAY BE DEEMED
JUST AND PROPER, WITH A VIEW TO CONFIRM BONA FIDE GRANTS, AND GIVE FULL
EFFECT" TO THE TREATY.  IT WAS ALSO PROVIDED THAT "UNTIL THE FINAL
ACTION OF CONGRESS ON SUCH CLAIMS, ALL LANDS COVERED THEREBY SHALL BE
RESERVED FROM SALE OR OTHER DISPOSAL BY THE GOVERNMENT, AND SHALL NOT
BE SUBJECT TO THE DONATIONS GRANTED BY THE PREVIOUS PROVISIONS OF THIS
ACT."  THE 1870 ACT DIRECTED THE SURVEYOR GENERAL FOR ARIZONA (WHICH
WAS SEPARATED AS A TERRITORY FROM NEW MEXICO IN 1863, 12 STAT. 664) "TO
ASCERTAIN AND REPORT UPON THE ORIGIN, NATURE, CHARACTER, AND EXTENT OF
THE CLAIMS TO LANDS IN SAID TERRITORY UNDER THE LAWS, USAGES, AND
CUSTOMS OF SPAIN AND MEXICO."  HIS REPORT WAS TO BE "LAID BEFORE
CONGRESS FOR SUCH ACTION THEREON AS SHALL BE DEEMED JUST AND PROPER." 

THESE ACTS DID NOT EXTINGUISH ANY INDIAN TITLE BASED ON ABORIGINAL
OCCUPANCY WHICH THE WALAPAIS MAY HAVE HAD.  IN THAT RESPECT THEY WERE
QUITE DIFFERENT FROM THE ACT OF MARCH 3, 1851, 9 STAT. 631, PASSED TO
ASCERTAIN AND SETTLE CERTAIN LAND CLAIMS IN CALIFORNIA.  UNDER SEC. 13
OF THAT ACT "ALL LANDS THE CLAIMS TO WHICH SHALL NOT HAVE BEEN
PRESENTED" TO THE COMMISSIONERS, APPOINTED TO RECEIVE AND ACT UPON ALL
PETITIONS FOR CONFIRMATION OF LAND CLAIMS, "WITHIN TWO YEARS AFTER THE
DATE OF THIS ACT, SHALL BE DEEMED, HELD, AND CONSIDERED AS PART OF THE
PUBLIC DOMAIN OF THE UNITED STATES."  THIS COURT PASSED ON THAT ACT IN
BARKER V. HARVEY, 181 U.S. 481.  THE PLAINTIFF THERE CLAIMED UNDER TWO
MEXICAN GRANTS.  THE DEFENDANTS WERE INDIANS WHO CLAIMED A RIGHT OF
PERMANENT OCCUPANCY; BUT THEY HAD NOT PRESENTED THEIR CLAIMS TO THE
COMMISSIONERS WITHIN THE TIME SPECIFIED BY SEC. 13.  THIS COURT HELD
THAT AS A RESULT OF THAT FAILURE THEIR CLAIMS WERE BARRED.  AND SEE
UNITED STATES V. TITLE INSURANCE & TRUST CO., SUPRA, 265 U.S. 472. 
THAT IS TO SAY, THE ACT OF 1851 WAS INTERPRETED AS CONTAINING MACHINERY
FOR EXTINGUISHMENT OF CLAIMS, INCLUDING THOSE BASED ON INDIAN RIGHT OF
OCCUPANCY.  SINCE CONGRESS HAD PROVIDED A METHOD FOR EXTINGUISHMENT,
ITS APPROPRIATENESS RAISED ONLY A POLITICAL, NOT A JUSTICIABLE, ISSUE. 
THE ACTS OF 1854 AND 1870, UNLIKE THE ACT OF 1851, MERELY CALLED FOR A
REPORT TO CONGRESS ON CERTAIN LAND CLAIMS.  IF THERE WAS AN
EXTINGUISHMENT OF THE RIGHTS OF THE WALAPAIS, IT RESULTED NOT FROM
ACTION OF THE SURVEYOR GENERAL BUT FROM ACTION OF CONGRESS BASED ON HIS
REPORTS.  FN6  WE ARE NOT ADVISED THAT CONGRESS TOOK ANY SUCH ACTION. 
IN ITS ABSENCE WE MUST CONCLUDE THAT THESE ACTS WERE CONCERNED NOT WITH
THE PROBLEM OF ASCERTAINING THE BOUNDARIES OF INDIAN COUNTRY BUT WITH
THE PROBLEM OF QUIETING TITLES ORIGINATING UNDER SPANISH OR MEXICAN
GRANTS.  FOR IT SHOULD BE NOTICED THAT SEC. 8 OF THE 1854 ACT
CONTEMPLATED CONFIRMATION BY CONGRESS OF "BONA FIDE GRANTS." 

THIS BRINGS US TO THE ACT OF MARCH 3, 1865, 13 STAT. 541, 559, WHICH
PROVIDED:  "ALL THAT PART OF THE PUBLIC DOMAIN IN THE TERRITORY OF
ARIZONA, LYING WEST OF A DIRECT LINE FROM HALF-WAY BEND TO CORNER ROCK
ON THE COLORADO RIVER, CONTAINING ABOUT SEVENTY-FIVE THOUSAND ACRES OF
LAND, SHALL BE SET APART FOR AN INDIAN RESERVATION FOR THE INDIANS OF
SAID RIVER AND ITS TRIBUTARIES."  IT IS PLAIN THAT THE INDIANS REFERRED
TO INCLUDED THE WALAPAIS.  THE SUGGESTION FOR REMOVING VARIOUS INDIAN
TRIBES IN THIS AREA TO A RESERVATION APPARENTLY ORIGINATED WITH A
FORMER INDIAN AGENT, SUPERINTENDENT POSTON, WHO WAS A TERRITORIAL
REPRESENTATIVE IN CONGRESS IN 1865.  HIS EXPLANATION FN7  ON THE FLOOR
OF THE HOUSE OF THE BILL, WHICH RESULTED IN THE CREATION OF THE 1865
RESERVATION, INDICATES THAT HE HAD CALLED A COUNCIL OF THE CONFEDERATED
TRIBES OF THE COLORADO, INCLUDING THE WALAPAIS, AND HAD TOLD THEM THAT
"THEY SHOULD ABANDON" THEIR LANDS AND CONFINE THEMSELVES TO THE PLACE
ON THE COLORADO RIVER WHICH WAS LATER PROPOSED FOR A RESERVATION.  HE
ENTERED INTO NO AGREEMENT WITH THEM NOR DID HE PROPOSE A TREATY.  HE
MERELY STATED THAT IF ELECTED TO CONGRESS HE WOULD TRY TO GET CONGRESS
TO PROVIDE FOR THEM.  AS STATED BY THE COMMISSIONER OF INDIAN AFFAIRS
IN 1864, "ASSUMING THAT THE INDIANS HAVE A RIGHT OF SOME KIND TO THE
SOIL, MR. POSTON'S ARRANGEMENT PROPOSES A COMPROMISE WITH THESE
INDIANS, BY WHICH ON THEIR CONFINING THEMSELVES TO THEIR RESERVATION,
AND YIELDING ALL CLAIMS TO LANDS BEYOND IT, THEY SHALL, IN LIEU OF AN
ANNUITY IN MONEY OR SUPPLIES, BE FURNISHED BY GOVERNMENT WITH AN
IRRIGATING CANAL, AT A COST ESTIMATED AT SOMETHING NEAR $100,000,
WHICH, BY INSURING THEM THEIR ANNUAL CROPS, WILL ENABLE THEM TO SUPPORT
THEMSELVES, INDEPENDENTLY OF OTHER AID BY THE GOVERNMENT."  FN8 

WE SEARCH THE PUBLIC RECORDS IN VAIN FOR ANY CLEAR AND PLAIN
INDICATION THAT CONGRESS IN CREATING THE COLORADO RIVER RESERVATION WAS
DOING MORE THAN MAKING AN OFFER TO THE INDIANS, INCLUDING THE WALAPAIS,
WHICH IT WAS HOPED WOULD BE ACCEPTED AS A COMPROMISE OF A TROUBLESOME
QUESTION.  WE FIND NO INDICATION THAT CONGRESS BY CREATING THAT
RESERVATION INTENDED TO EXTINGUISH ALL OF THE RIGHTS WHICH THE WALAPAIS
HAD IN THEIR ANCESTRAL HOME.  FN9  THAT CONGRESS COULD HAVE EFFECTED
SUCH AN EXTINGUISHMENT IS NOT DOUBTED.  BUT AN EXTINGUISHMENT CANNOT BE
LIGHTLY IMPLIED IN VIEW OF THE AVOWED SOLICITUDE OF THE FEDERAL
GOVERNMENT FOR THE WELFARE OF ITS INDIAN WARDS.  AS STATED IN CHOATE V.
TRAPP, 224 U.S. 665, 675, THE RULE OF CONSTRUCTION RECOGNIZED WITHOUT
EXCEPTION FOR OVER A CENTURY HAS BEEN THAT "DOUBTFUL EXPRESSIONS,
INSTEAD OF BEING RESOLVED IN FAVOR OF THE UNITED STATES, ARE TO BE
RESOLVED IN FAVOR OF A WEAK AND DEFENSELESS PEOPLE, WHO ARE WARDS OF
THE NATION, AND DEPENDENT WHOLLY UPON ITS PROTECTION AND GOOD FAITH." 
AND SEE MINNESOTA V. HITCHCOCK, 185 U.S. 373, 395-396.  NOR WAS THERE
ANY PLAIN INTENT OR AGREEMENT ON THE PART OF THE WALAPAIS TO ABANDON
THEIR ANCESTRAL LANDS IF CONGRESS WOULD CREATE A RESERVATION. 
FURTHERMORE, THE WALAPAIS DID NOT ACCEPT THE OFFER WHICH CONGRESS HAD
TENDERED.  IN 1874 THEY WERE, HOWEVER, FORCIBLY REMOVED TO THE COLORADO
RIVER RESERVATION ON ORDER FROM THE INDIAN DEPARTMENT.  FN10  BUT THEY
LEFT IT IN A BODY THE NEXT YEAR.  FN11 AND IT WAS DECIDED "TO ALLOW
THEM TO REMAIN IN THEIR OLD RANGE DURING GOOD BEHAVIOR."  FN12  THEY
DID THEREAFTER REMAIN IN THEIR OLD COUNTRY AND ENGAGED IN NO
HOSTILITIES AGAINST THE WHITES.  NO FURTHER ATTEMPT WAS MADE TO FORCE
THEM ONTO THE COLORADO RIVER RESERVATION, EVEN THOUGH CONGRESS HAD MADE
VARIOUS APPROPRIATIONS TO DEFRAY THE COSTS OF LOCATING THE ARIZONA
INDIANS IN PERMANENT ABODES (ACT OF MARCH 3, 1865, 13 STAT. 541, 559;
ACT OF JULY 27, 1868, 15 STAT. 198, 219; ACT OF JULY 15, 1870, 16 STAT.
335, 357), INCLUDING THE COLORADO RIVER RESERVATION.  ACT OF MARCH 2,
1867, 14 STAT. 492, 515; ACT OF MAY 29, 1872, 17 STAT. 165, 188.  ON
THESE FACTS WE CONCLUDE THAT THE CREATION OF THE COLORADO RIVER
RESERVATION WAS, SO FAR AS THE WALAPAIS WERE CONCERNED, NOTHING MORE
THAN AN ABORTIVE ATTEMPT TO SOLVE A PERPLEXING PROBLEM.  THEIR FORCIBLE
REMOVAL IN 1874 WAS NOT PURSUANT TO ANY MANDATE OF CONGRESS.  IT WAS A
HIGH-HANDED ENDEAVOR TO WREST FROM THESE INDIANS LANDS WHICH CONGRESS
HAD NEVER DECLARED FORFEITED.  FN13  NO FORFEITURE CAN BE PREDICATED ON
AN UNAUTHORIZED ATTEMPT TO EFFECT A FORCIBLE SETTLEMENT ON THE
RESERVATION, UNLESS WE ARE TO BE INSENSITIVE TO THE HIGH STANDARDS FOR
FAIR DEALING IN LIGHT OF WHICH LAWS DEALING WITH INDIAN RIGHTS HAVE
LONG BEEN READ.  CERTAINLY, A FORCED ABANDONMENT OF THEIR ANCESTRAL
HOME WAS NOT A "VOLUNTARY CESSION" WITHIN THE MEANING OF SEC. 2 OF THE
ACT OF JULY 27, 1866.  ATLANTIC & PACIFIC R. CO. V. MINGUS, 165 U.S.
413, 438-439. 

THE SITUATION WAS, HOWEVER, QUITE DIFFERENT IN 1881.  BETWEEN 1875
AND THAT DATE THERE WERE RATHER CONTINUOUS SUGGESTIONS FOR SETTLING THE
WALAPAIS ON SOME RESERVATION.  FN14  IN 1881 THE MATTER CAME TO A
HEAD.  A MAJORITY OF THE TRIBE, "IN COUNCIL ASSEMBLED," ASKED AN
OFFICER OF THE UNITED STATES ARMY IN THAT REGION "TO AID THEM AND
REPRESENT TO THE PROPER AUTHORITIES" THE FOLLOWING PROPOSAL:  FN15
"THEY SAY THAT IN THE COUNTRY, OVER WHICH THEY USED TO ROAM SO FREE,
THE WHITE MEN HAVE APPROPRIATED ALL THE WATER; THAT LARGE NUMBERS OF
CATTLE HAVE BEEN INTRODUCED AND HAVE RAPIDLY INCREASED DURING THE PAST
YEAR OR TWO; THAT IN MANY PLACES THE WATER IS FENCED IN AND LOCKED UP;
AND THEY ARE DRIVEN FROM ALL WATERS.  THEY SAY THAT THE RAILROAD IS NOW
COMING, WHICH WILL REQUIRE MORE WATER, AND WILL BRING MORE MEN WHO WILL
TAKE UP ALL THE SMALL SPRINGS REMAINING.  THEY URGE THAT THE FOLLOWING
RESERVATION BE SET ASIDE FOR THEM WHILE THERE IS STILL TIME; THAT THE
LAND CAN NEVER BE OF ANY GREAT USE TO THE WHITES; THAT THERE ARE NO
MINERAL DEPOSITS UPON IT, AS IT HAS BEEN THOROUGHLY PROSPECTED; THAT
THERE IS LITTLE OR NO ARABLE LAND; THAT THE WATER IS IN SUCH SMALL
QUANTITIES, AND THE COUNTRY IS SO ROCKY AND VOID OF GRASS, THAT IT
WOULD NOT BE AVAILABLE FOR STOCK RAISING.  I AM CREDIBLY INFORMED, AND
FROM MY OBSERVATIONS BELIEVE, THE ABOVE FACTS TO BE TRUE.  I,
THEREFORE, EARNESTLY RECOMMEND THAT THE HEREAFTER DESCRIBED RESERVATION
BE, AT AS EARLY A DATE AS PRACTICABLE, SET ASIDE FOR THEM." 

PURSUANT TO THAT RECOMMENDATION, THE MILITARY RESERVATION WAS
CONSTITUTED ON JULY 8, 1881, SUBJECT TO THE APPROVAL OF THE PRESIDENT. 
FN16  THE EXECUTIVE ORDER CREATING THE WALAPAI INDIAN RESERVATION WAS
SIGNED BY PRESIDENT ARTHUR ON JANUARY 4, 1883.  FN17  THERE WAS AN
INDICATION THAT THE INDIANS WERE SATISFIED WITH THE PROPOSED
RESERVATION.  FN18  A FEW OF THEM THEREAFTER LIVED ON THE RESERVATION;
MANY OF THEM DID NOT.  FN19  WHILE SUGGESTIONS RECURRED FOR THE
CREATION OF A NEW AND DIFFERENT RESERVATION,  FN20  THIS ONE WAS NOT
ABANDONED.  FOR A LONG TIME IT REMAINED UNSURVEYED.  FN21  CATTLEMEN
USED IT FOR GRAZING, AND FOR SOME YEARS THE WALAPAIS RECEIVED LITTLE
BENEFIT FROM IT.  FN22  BUT IN VIEW OF ALL OF THE CIRCUMSTANCES, WE
CONCLUDE THAT ITS CREATION AT THE REQUEST OF THE WALAPAIS AND ITS
ACCEPTANCE BY THEM AMOUNTED TO A RELINQUISHMENT OF ANY TRIBAL CLAIMS TO
LANDS  FN23  WHICH THEY MIGHT HAVE HAD OUTSIDE THAT RESERVATION AND
THAT THAT RELINQUISHMENT WAS TANTAMOUNT TO AN EXTINGUISHMENT BY
"VOLUNTARY CESSION" WITHIN THE MEANING OF SEC. 2 OF THE ACT OF JULY 27,
1866.  THE LANDS WERE FAST BEING POPULATED.  THE WALAPAIS SAW THEIR OLD
DOMAIN BEING PREEMPTED.  THEY WANTED A RESERVATION WHILE THERE WAS
STILL TIME TO GET ONE.  THAT SOLUTION HAD LONG SEEMED DESIRABLE IN VIEW
OF RECURRING TENSIONS BETWEEN THE SETTLERS AND THE WALAPAIS.  IN VIEW
OF THE LONG STANDING ATTEMPT TO SETTLE THE WALAPAIS' PROBLEM BY PLACING
THEM ON A RESERVATION, THEIR ACCEPTANCE OF THIS RESERVATION MUST BE
REGARDED IN LAW AS THE EQUIVALENT OF A RELEASE OF ANY TRIBAL RIGHTS
WHICH THEY MAY HAVE HAD IN LANDS OUTSIDE THE RESERVATION.  THEY WERE IN
SUBSTANCE ACQUIESCING IN THE PENETRATION OF WHITE SETTLERS ON CONDITION
THAT PERMANENT PROVISION WAS MADE FOR THEM TOO.  IN VIEW OF THIS
HISTORICAL SETTING, IT CANNOT NOW BE FAIRLY IMPLIED THAT TRIBAL RIGHTS
OF THE WALAPAIS IN LANDS OUTSIDE THE RESERVATION WERE PRESERVED.  THAT
WOULD MAKE THE CREATION OF THE 1883 RESERVATION, AS AN ATTEMPTED
SOLUTION OF THE VIOLENT PROBLEMS CREATED WHEN TWO CIVILIZATIONS MET IN
THIS AREA, ILLUSORY INDEED.  WE MUST GIVE IT THE DEFINITIVENESS WHICH
THE EXIGENCIES OF THAT SITUATION SEEM TO DEMAND.  HENCE, ACQUIESCENCE
IN THAT ARRANGEMENT MUST BE DEEMED TO HAVE BEEN A RELINQUISHMENT OF
TRIBAL RIGHTS IN LANDS OUTSIDE THE RESERVATION AND NOTORIOUSLY CLAIMED
BY OTHERS.  CF. MARSH V. BROOKS, 14 HOW.  513; SHOSHONE TRIBE V. UNITED
STATES, 299 U.S. 476. 

ON JANUARY 23, 1941, THE DATE OF THE FILING OF THIS PETITION FOR
CERTIORARI, RESPONDENT QUITCLAIMED TO THE UNITED STATES, UNDER SEC.
321(B), PT. III OF THE INTERSTATE COMMERCE ACT (TRANSPORTATION ACT OF
1940, 54 STAT. 929, 954), ALL LANDS CLAIMED BY IT UNDER THE ACT OF JULY
27, 1866, WITHIN THE WALAPAI INDIAN RESERVATION.  SINCE THE DECREE
BELOW MUST STAND AS TO THE SECOND CAUSE OF ACTION AND SINCE BY VIRTUE
OF THE QUITCLAIM DEEDS THE UNITED STATES HAS RECEIVED ALL THE LANDS TO
WHICH THE FIRST CAUSE OF ACTION RELATES, THE DECREE WILL NOT BE
REVERSED.  IT IS APPARENT, HOWEVER, THAT IT MUST BE MODIFIED SO AS TO
PERMIT THE ACCOUNTING AS RESPECTS LANDS IN THE FIRST CAUSE OF ACTION. 
IT DOES NOT APPEAR WHETHER THOSE LANDS WERE INCLUDED IN THE ANCESTRAL
HOME OF THE WALAPAIS IN THE SENSE THAT THEY WERE IN WHOLE OR IN PART
OCCUPIED EXCLUSIVELY BY THEM OR WHETHER THEY WERE LANDS WANDERED OVER
BY MANY TRIBES.  AS WE HAVE SAID, OCCUPANCY NECESSARY TO ESTABLISH
ABORIGINAL POSSESSION IS A QUESTION OF FACT.  THE UNITED STATES IS
ENTITLED TO AN ACCOUNTING AS RESPECTS ANY OR ALL OF THE LANDS IN THE
FIRST CAUSE OF ACTION WHICH THE WALAPAIS DID IN FACT OCCUPY EXCLUSIVELY
FROM TIME IMMEMORIAL.  FN24  SUCH AN ACCOUNTING IS NOT PRECLUDED BY THE
ACT OF FEBRUARY 20, 1925, 43 STAT. 954, WHICH AUTHORIZED THE SECRETARY
OF THE INTERIOR "TO ACCEPT RECONVEYANCES TO THE GOVERNMENT OF PRIVATELY
OWNED AND STATE SCHOOL LANDS AND RELINQUISHMENTS OF ANY VALID FILINGS,
UNDER THE HOMESTEAD LAWS, OR OF OTHER VALID CLAIMS WITHIN THE WALAPAI
INDIAN RESERVATION."  THE IMPLICATION IS THAT THERE MAY BE SOME LAND
WITHIN THE RESERVATION THAT IS NOT SUBJECT TO INDIAN OCCUPANCY.  BUT
THAT ACT CERTAINLY CANNOT BE TAKEN AS AN EXTINGUISHMENT OF ANY AND ALL
INDIAN TITLE THAT DID EXIST OR AS A REPEAL BY IMPLICATION OF SEC. 2 OF
THE ACT OF JULY 27, 1866, REQUIRING SUCH EXTINGUISHMENT BY "VOLUNTARY
CESSION."  IT WAS PASSED SO THAT LANDS "RETAINED FOR INDIAN PURPOSES
MAY BE CONSOLIDATED AND HELD IN A SOLID AREA SO FAR AS MAY BE
POSSIBLE."  FN25 SUCH STATEMENTS BY THE SECRETARY OF THE INTERIOR AS
THAT "TITLE TO THE ODD-NUMBERED SECTIONS" WAS IN THE RESPONDENT  FN26
DO NOT ESTOP THE UNITED STATES FROM MAINTAINING THIS SUIT.  FOR THEY
COULD NOT DEPRIVE THE INDIANS OF THEIR RIGHTS ANY MORE THAN COULD THE
UNAUTHORIZED LEASES IN CRAMER V. UNITED STATES, SUPRA. 

HENCE, AN ACCOUNTING AS RESPECTS SUCH LANDS IN THE RESERVATION WHICH
CAN BE PROVED TO HAVE BEEN OCCUPIED BY THE WALAPAIS FROM TIME
IMMEMORIAL CAN BE HAD.  TO THE EXTENT THAT THE DECREE BELOW PRECLUDES
SUCH PROOF AND ACCOUNTING, IT WILL BE MODIFIED.  AND AS SO MODIFIED, IT
IS AFFIRMED. 

FN1  EARLIER CASES INVOLVING THIS GRANT ARE UNITED STATES V. SOUTHERN
PACIFIC R. CO., 146 U.S. 570; ATLANTIC & PACIFIC R. CO. V. MINGUS, 165
U.S. 413; SANTA FE PACIFIC R. CO. V. LANE, 244 U.S. 492; SANTA FE
PACIFIC R. CO. V. FALL, 259 U.S. 197; SANTA FE PACIFIC R. CO. V. WORK,
267 U.S. 511. 

FN2  SEE TREATY OF GUADALUPE HIDALGO, 9 STAT. 922. 

FN3  CHOUTEAU V. MOLONY, SUPRA; BUTTZ V. NORTHERN PACIFIC RAILROAD,
SUPRA; CRAMER V. UNITED STATES, SUPRA; UNITED STATES V. SHOSHONE TRIBE,
SUPRA.  SEE ROYCE, INDIAN LAND CESSIONS IN THE UNITED STATES, 18
PUBLICATIONS OF THE BUREAU OF AMERICAN ETHNOLOGY, SMITHSONIAN
INSTITUTION, PT. 2(1899) PP. 539-561, 639-643. 

FN4  TREATY OF JULY 1, 1852, 10 STAT. 979(APACHE NATION); TREATY OF
OCTOBER 7, 1863, 13 STAT. 673, 674(TABEGUACHE BAND OF UTAH INDIANS);
TREATY OF MARCH 2, 1868, 15 STAT. 619, ACT OF APRIL 29, 1874, 18 STAT.
36, ACT OF JUNE 15, 1880, 21 STAT. 199(UTE INDIANS); TREATY OF JUNE 1,
1868, 15 STAT. 667(NAVAJO TRIBE).  FOR A SCHEDULE OF INDIAN LAND
CESSIONS SEE ROYCE, OP. CIT., SUPRA NOTE 3, PP. 648 ET SEQ. 

FN5  THE ACT OF 1854 IS CITED IN COHEN, HANDBOOK OF FEDERAL INDIAN
LAW (1941) P. 308, FOR THE STATEMENT THAT, "ONLY WHERE IT WAS NECESSARY
TO GIVE EMIGRANTS POSSESSORY RIGHTS TO PARTS OF THE PUBLIC DOMAIN, HAS
CONGRESS EVER GRANTED TRIBAL LANDS IN DISREGARD OF TRIBAL POSSESSORY
RIGHTS." 

FN6  THE VARIOUS REPORTS OF THE SURVEYOR GENERAL ARE FOUND IN THE
ANNUAL REPORTS OF THE SECRETARY OF THE INTERIOR FROM 1855 THROUGH 1890,
WHEN THE COURT OF PRIVATE LAND CLAIMS WAS CONSTITUTED.  ACT OF MARCH 3,
1891, 26 STAT. 854.  SEC. 15 OF THAT ACT REPEALED SEC. 8 OF THE ACT OF
1854.  UNDER SEC. 13 OF THE 1891 ACT IT WAS PROVIDED:  "NO CLAIM SHALL
BE ALLOWED THAT SHALL INTERFERE WITH OR OVERTHROW ANY JUST AND
UNEXTINGUISHED INDIAN TITLE OR RIGHT TO ANY LAND OR PLACE." 

FN7  CONG. GLOBE, 38TH CONG., 2D SESS., MARCH 2, 1865, P. 1320:  "AS
SUPERINTENDENT OF INDIAN AFFAIRS, I CALLED THE CONFEDERATED TRIBES OF
THE COLORADO IN COUNCIL TOGETHER.  THE COUNCIL WAS ATTENDED BY THE
PRINCIPAL CHIEFS AND HEADMEN OF THE YUMAS, MOJAVES, YAPAPAIS,
HUALAPAIS, AND CHEMIHUEVIS.  THESE TRIBES HAVE AN AGGREGATE OF TEN
THOUSAND SOULS LIVING NEAR THE BANKS OF THE COLORADO, FROM FORT YUMA TO
FORT MOJAVE.  ... 

"BUT AS THE REPRESENTATIVE OF THE GOVERNMENT OF THE UNITED STATES AT
THAT TIME, I DID NOT UNDERTAKE TO MAKE A WRITTEN TREATY WITH THESE
INDIANS, BECAUSE I CONSIDERED THAT THE GOVERNMENT WAS ABLE AND WILLING
TO TREAT THEM FAIRLY AND HONESTLY WITHOUT ENTERING INTO THE FORM OF A
WRITTEN TREATY, WHICH HAS BEEN HERETOFORE SO SEVERELY CRITICISED IN
BOTH HOUSES OF CONGRESS, AND WITH SOME REASON.  THESE INDIANS THERE
ASSEMBLED WERE WILLING, FOR A SMALL AMOUNT OF BEEF AND FLOUR, TO HAVE
SIGNED ANY TREATY WHICH IT HAD BEEN MY PLEASURE TO WRITE.  I SIMPLY
PROPOSED TO THEM THAT FOR ALL THE ONE HUNDRED AND TWENTY THOUSAND
SQUARE MILES, FULL OF MINES AND RICH ENOUGH TO PAY THE PUBLIC DEBT OF
THE UNITED STATES, THEY SHOULD ABANDON THAT TERRITORY AND CONFINE
THEMSELVES TO THE ELBOW IN THE COLORADO RIVER, NOT MORE THAN SEVENTY
FIVE THOUSAND ACRES.  BUT I DID NOT ENTER INTO ANY OBLIGATION ON
ACCOUNT OF THE UNITED STATES TO FURNISH THEM WITH SEEDS AND
AGRICULTURAL IMPLEMENTS.  I SIMPLY TOLD THEM THAT IF I WAS ELECTED TO
REPRESENT THAT TERRITORY IN THIS CONGRESS, I WOULD ENDEAVOR TO LAY
THEIR CLAIMS BEFORE THE GOVERNMENT, WHICH THEY UNDERSTOOD TO BE
MAGNANIMOUS, AND THAT I HOPED THAT THIS CONGRESS WOULD HAVE THE
GENEROSITY AND THE JUSTICE TO PROVIDE FOR THESE INDIANS, WHO HAVE BEEN
ROBBED OF THEIR LANDS AND THEIR MEANS OF SUBSISTENCE, AND THAT THEY MAY
BE ALLOWED TO LIVE THERE WHERE THEY HAVE ALWAYS MADE THEIR HOMES.  THEY
DESIRE TO LIVE AS DO THE PUEBLO INDIANS OF NEW MEXICO AND ARIZONA. 
THOSE PUEBLO INDIANS LIVE IN SETTLEMENTS, IN TOWNS, IN RESERVATIONS,
ACCORDING TO THE WISE POLICY OF THE SPANISH GOVERNMENT, WHICH COLONIZED
THE INDIANS IN RESERVATIONS AND MADE THEIR LABOR VALUABLE IN BUILDING
IMPROVEMENTS FOR THEIR OWN SUSTENANCE, FOR CHURCHES, AND PUBLIC
IMPROVEMENTS, AND IN THAT MANNER MADE THEM PEACEABLE INDIANS, INSTEAD
OF HAVING EVERLASTING AND ETERNAL WAR WITH THE PEOPLE WHOM THEY HAD
ROBBED OF THEIR LAND. 

"THESE PEOPLE HAVING BEEN CITIZENS OF THE MEXICAN GOVERNMENT, ARE
NOT, ACCORDING TO OUR THEORY, ENTITLED TO ANY RIGHT IN THE SOIL; AND
THEREFORE NO TREATY WITH THESE INDIANS FOR THE EXTINCTION OF THEIR
TITLE TO THE SOIL WOULD BE RECOGNIZED BY THIS GOVERNMENT.  IT IS A
FICTION OF LAW WHICH THESE INDIANS, IN THEIR IGNORANCE, ARE NOT ABLE TO
UNDERSTAND.  THEY CANNOT SEE WHY THE INDIANS OF THE NORTHEAST HAVE BEEN
PAID ANNUITIES SINCE THE FOUNDATION OF THIS GOVERNMENT FOR THE
EXTINCTION OF THEIR TITLE, WHILE THE INDIANS WHO WERE FORMERLY SUBJECT
TO THE SPANISH AND MEXICAN GOVERNMENTS ARE DRIVEN FROM THEIR LANDS
WITHOUT A DOLLAR.  IT IS IMPOSSIBLE FOR THESE SIMPLE-MINDED PEOPLE TO
UNDERSTAND THIS SOPHISTRY.  THEY CONSIDER THEMSELVES JUST AS MUCH
ENTITLED TO THE LAND WHICH THEIR ANCESTORS INHABITED BEFORE OURS LANDED
ON PLYMOUTH ROCK AS THE INDIANS OF THE NORTHEAST.  THEY HAVE NEVER
SIGNED ANY TREATY RELINQUISHING THEIR RIGHT TO THE PUBLIC DOMAIN." 

FN8  REPORT OF THE SECRETARY OF THE INTERIOR, DEC. 5, 1864, P. 165. 

FN9 RESPONDENT ALSO PLACES SOME STRESS ON THE ACT OF APRIL 20, 1871,
17 STAT. 19, IN WHICH CONGRESS PERMITTED RESPONDENT'S PREDECESSOR TO
MORTGAGE ITS PROPERTY.  BUT AS STATED IN LEAVENWORTH, L. & G.R. CO. V.
UNITED STATES, 92 U.S. 733, 753, "  ...  TITLE TO LANDS IS NOT
STRENGTHENED BY GIVING A MORTGAGE UPON THEM; NOR CAN THE FACT THAT IT
HAS BEEN GIVEN THROW ANY LIGHT UPON THE PRIOR ESTATE OF THE
MORTGAGOR."  AND SEE ATLANTIC & PACIFIC R. CO. V. MINGUS, 165 U.S. 413,
430, WHERE THIS COURT IN SPEAKING OF THE PURPOSE OF THE ACT OF APRIL
20, 1871, SAID: "THE ORIGINAL ACT BEING SILENT UPON THE SUBJECT OF
MORTGAGING THE GRANT, THERE IS REASON TO SUPPOSE THAT CONGRESS PASSED
THE ACT FOR THE PURPOSE OF RESOLVING ANY DOUBTS THAT CAPITALISTS MAY
HAVE ENTERTAINED WITH RESPECT TO SUCH POWER.  THE MORTGAGEES, STANDING
IN THE PLACE OF THE MORTGAGOR, HAD NO GREATER RIGHTS THAN IT HAD, AND
MUST BE HELD TO HAVE KNOWN THAT THEY WERE TAKING AN ESTATE WHICH WAS
DEFEASIBLE UPON CONDITION BROKEN." 

FN10  WALAPAI PAPERS, S. DOC. NO. 273, 74TH CONG., 2D SESS., PP. 96
98.  THOUGH THE WALAPAIS WERE AT PEACE WITH THE WHITES PRIOR TO
1866(ID. P. 92) THE KILLING OF THEIR HEAD CHIEF BY A WHITE LED TO
HOSTILITIES WHICH CONTINUED FOR A FEW YEARS.  ID. PP. 37-94. 

FN11  WALAPAI PAPERS, OP. CIT., P. 104. 

FN12  WALAPAI PAPERS, OP. CIT., P. 104. 

FN13  SEE WALAPAI PAPERS, OP. CIT., P. 108.  GENERAL SCHOFIELD
REPORTED ON MAY 24, 1875, TO THE ADJUTANT GENERAL AS FOLLOWS: 

"THE HUALPAI INDIANS HAVE BEEN OUR FIRM FRIENDS FOR MANY YEARS, AND
OUR ACTIVE ALLIES WHENEVER THEIR SERVICES HAVE BEEN REQUIRED AGAINST
THE HOSTILE APACHES.  IN RETURN FOR THEIR FIDELITY THEY HAVE BEEN
TREATED WITH GREAT INJUSTICE AND CRUELTY.  THEY WERE FORCED TO LEAVE
THEIR HOMES IN THE MOUNTAINS AND GO UPON A RESERVATION IN THE COLORADO
DESERT, WHERE THEY HAVE SUFFERED FROM THE EXTREME HEAT, TO WHICH THEY
WERE UNACCUSTOMED, FROM DISEASE, AND FROM HUNGER. 

"THIS WAS DONE IN SPITE OF THE PROTEST OF THE MILITARY COMMANDERS WHO
WERE FAMILIAR WITH THE WANTS OF THESE INDIANS AND WERE ANXIOUS TO REPAY
BY KIND TREATMENT THE FAITHFUL SERVICES THEY HAD RENDERED.  THE INDIANS
WERE BITTERLY OPPOSED TO THIS CHANGE, AND IT WAS ONLY THE GREAT
INFLUENCE WHICH GEN'L. CROOK AND CAPTAIN BYRNE HAD ACQUIRED OVER THEM
THAT ENABLED THE REMOVAL TO BE MADE WITHOUT WAR. 

"THE INDIAN AGENT, HAVING SEEN FIT TO RELINQUISH THE AID OF THIS
POWERFUL INFLUENCE, THE EFFECT WAS AT ONCE MANIFEST IN THE RETURN OF
THE HUALPAIS TO THEIR FORMER HOMES. 

"I AM DECIDEDLY OPPOSED TO THE USE OF ANY COERCIVE MEASURES TO FORCE
THEM BACK UPON THE COLORADO RESERVATION. 

"THE INJUSTICE AND BAD FAITH SHOWN BY THE GOVERNMENT TOWARD THE
HUALPAIS AND THE INDIANS WHICH GEN'L. CROOK HAD COLLECTED UPON THE
VERDE RESERVATION ARE CALCULATED TO UNDO AS FAR AS POSSIBLE THE GOOD
WORK WHICH GEN'L. CROOK AND HIS TROOPS HAD ACCOMPLISHED WITH SO MUCH
WISDOM AND GALLANTRY.  IT IS USELESS TO ATTEMPT TO DISGUISE THE FACT
THAT SUCH TREATMENT OF THE INDIANS IS IN VIOLATION OF THE JUST AND
HUMANE POLICY PRESCRIBED BY THE PRESIDENT AND A DISGRACE TO ANY
CIVILIZED COUNTRY." 

FN14  WALAPAI PAPERS, OP. CIT., PP. 113-131. 

FN15  WALAPAI PAPERS, OP. CIT., PP. 134-135.  FOR A STRIKINGLY CLOSE
VERSION OF THIS EPISODE AS RELATED IN 1931 BY A MEMBER OF THE WALAPAI
TRIBE WHO WAS PRESENT AT THE CONFERENCE IN 1881 BETWEEN THE COUNCIL OF
THE TRIBE AND THE UNITED STATES ARMY OFFICER, SEE WALAPAI PAPERS, PP.
247-249. 

FN16  WALAPAI PAPERS, OP. CIT., PP. 135-136. 

FN17  WALAPAI PAPERS, OP. CIT., P. 146.  AS TO THE VALIDITY OF A
RESERVATION ESTABLISHED BY EXECUTIVE ORDER, SEE UNITED STATES V.
MIDWEST OIL CO., 236 U.S. 459.  SPALDING V. CHANDLER, 160 U.S. 394. 
GENERAL INDIAN ALLOTMENT ACT OF FEBRUARY 8, 1887, 24 STAT. 388, SEC. 1;
34 OP. A.G. 181, 186-189. 

FN18  WALAPAI PAPERS, OP. CIT., P. 136. 

FN19  WALAPAI PAPERS, OP. CIT., PP. 163, 165-168, 178, 198. 

FN20  WALAPAI PAPERS, OP. CIT., PP. 151, 161-165. 

FN21  WALAPAI PAPERS, OP. CIT., PP. 192, 196. 

FN22  WALAPAI PAPERS, OP. CIT., PP. 179, 183. 

FN23  AS DISTINGUISHED FROM INDIVIDUAL RIGHTS OF OCCUPANCY, IF ANY,
AS WERE INVOLVED IN CRAMER V. UNITED STATES, SUPRA, 261 U.S. 219, BUT
WHICH, NOT BEING IN ISSUE HERE, ARE NOT FORECLOSED OR AFFECTED BY THE
JUDGMENT IN THIS CASE. 

FN24  IN CASE OF ANY LANDS IN THE RESERVATION WHICH WERE NOT PART OF
THE ANCESTRAL HOME OF THE WALAPAIS AND WHICH HAD PASSED TO THE RAILROAD
UNDER THE 1866 ACT, THE RAILROAD'S TITLE WOULD ANTEDATE THE CREATION OF
THE RESERVATION IN 1883 AND HENCE NOT BE SUBJECT TO THE INCUMBRANCE OF
INDIAN TITLE. 

FN25  H. REP. NO. 1446, 68TH CONG., 2D SESS., P. 1.  SO FAR AS
APPEARS THERE WERE NO RECONVEYANCES UNDER THAT ACT.  IT APPARENTLY WAS,
HOWEVER, THE OCCASION FOR PRECIPITATING THE PRESENT LITIGATION. 

FN26  ID.  AND SEE WALAPAI PAPERS, OP. CIT., PP. 320-321. 
..END :












NEW YORK, C. & ST. L.R. CO. V. FRANK, 314 U.S. 360 


NO. 15.  REARGUED OCTOBER 16, 17, 1941.  - DECIDED DECEMBER 8, 1941.  -
24 N.Y.S.2D 854, AFFIRMED. 


THE ATTEMPT OF A CONSOLIDATED INTERSTATE CARRIER TO ESCAPE LIABILITY
FOR DEBTS OF A CONSTITUENT, UPON THE GROUND THAT PERMISSION TO ASSUME
SUCH LIABILITY WAS NEVER APPLIED FOR OR OBTAINED UNDER SEC. 20A OF THE
INTERSTATE COMMERCE ACT, ALTHOUGH ACCORDING TO THE STATE LAW UNDER
WHICH THE CONSOLIDATION TOOK PLACE THE LIABILITY WAS ONE WHICH ATTACHED
TO THE CONSOLIDATED CORPORATION UPON ITS CREATION, CAN NOT BE UPHELD IN
THIS CASE IN VIEW OF A CONSISTENT AND LONG-STANDING INTERPRETATION
PLACED UPON SEC. 20A BY THE INTERSTATE COMMERCE COMMISSION, IN RELATION
TO THIS PARTICULAR CARRIER SYSTEM, AND WITH FULL KNOWLEDGE OF ITS
AFFAIRS, AS NOT REQUIRING SUCH PERMISSION, AND IN VIEW OF THE FACT THAT
TO REJECT THAT INTERPRETATION NOW WOULD RESULT IN THE ENRICHMENT OF A
STOCKHOLDER EQUITY WHICH ITSELF WAS CAPITALIZED, WITH NO THOROUGH
SCRUTINY BY THE COMMISSION, BY VIRTUE OF THAT INTERPRETATION.  P. 372. 

NEW YORK, CHICAGO & ST. LOUIS RAILROAD CO. V. FRANK. 

APPEAL FROM THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK. 

APPEAL FROM A JUDGMENT AFFIRMING A JUDGMENT OF THE MUNICIPAL COURT OF
THE CITY OF NEW YORK IN FAVOR OF THE ABOVE-NAMED APPELLEE, IN AN ACTION
AGAINST THE APPELLANT TO RECOVER INTEREST DUE ON BONDS ISSUED BY THE
NORTHERN OHIO RAILWAY COMPANY WHICH WERE GUARANTEED BY THE LAKE ERIE &
WESTERN RAILROAD COMPANY.  175 MISC. 902, 24 N.Y.S.2D 846.  THE LATTER
COMPANY WAS A CONSTITUENT OF THE APPELLANT IN THIS CASE, A CONSOLIDATED
RAILROAD CORPORATION EMBRACING A NUMBER OF RAILROAD SYSTEMS.  THE CASE
WAS FIRST ARGUED AT THE 1940 TERM AND THE JUDGMENT BELOW WAS AFFIRMED
BY AN EQUALLY DIVIDED COURT, 313 U.S. 538.  REHEARING WAS GRANTED, 313
U.S. 596. 

MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, COMMONLY KNOWN AS THE NICKEL PLATE ROAD, WAS ORGANIZED
IN 1923 AS A CONSOLIDATED CORPORATION UNDER THE LAWS OF FIVE STATES:
NEW YORK, PENNSYLVANIA, OHIO, INDIANA, AND ILLINOIS.  THE AGREEMENTS
AND ARTICLES OF CONSOLIDATION PROVIDED THAT IT SHOULD SUCCEED TO ALL OF
THE PROPERTIES AND FRANCHISES, CONTRACTS, AND OBLIGATIONS OWNED BY ITS
CONSTITUENT COMPANIES.  SECTION 143 OF THE NEW YORK RAILROAD LAW, UNDER
WHICH THE NEW CORPORATION CAME INTO BEING, PROVIDED THAT "ALL DEBTS AND
LIABILITIES INCURRED BY EITHER OF SUCH CORPORATIONS SHALL THENCEFORTH
ATTACH TO SUCH NEW CORPORATION, AND BE ENFORCED AGAINST IT AND ITS
PROPERTY TO THE SAME EXTENT AS IF INCURRED OR CONTRACTED BY IT."  FN1
AMONG THE CONSTITUENT COMPANIES WAS THE LAKE ERIE & WESTERN RAILROAD. 
IN CONNECTION WITH A LEASE OF CERTAIN PROPERTIES FROM THE NORTHERN OHIO
RAILWAY IT HAD GUARANTEED PAYMENT OF PRINCIPAL AND INTEREST UPON THE
LATTER'S BONDS SECURED BY MORTGAGE ON THE LEASED PROPERTY.  BECAUSE OF
THE CONTENTION THAT THE STATE LAW "ATTACHED" THE OBLIGATIONS OF THIS
GUARANTY TO THE NICKEL PLATE, IT HAS NOW BEEN HELD LIABLE UPON
DEFAULTED COUPONS BY A MUNICIPAL COURT OF THE CITY OF NEW YORK. 

THE APPELLANT DEFENDED ON TWO GROUNDS:  FIRST, THAT THE ORIGINAL
GUARANTY BY THE LAKE ERIE WAS ULTRA VIRES.  THIS DEFENSE WAS OVERRULED
BY THE STATE COURT AND NOTHING OF THAT ISSUE SURVIVES FOR OUR
CONSIDERATION.  SECOND, THAT APPROVAL BY THE INTERSTATE COMMERCE
COMMISSION WAS NECESSARY UNDER SEC. 20A OF THE INTERSTATE COMMERCE ACT
BEFORE APPELLANT LEGALLY COULD "ASSUME" THE OBLIGATION,  FN2  AND THAT
SUCH APPROVAL HAD NOT BEEN GIVEN.  THIS DEFENSE, TOO, WAS OVERRULED BY
THE STATE COURT, AND THIS FEDERAL QUESTION COMES HERE BY APPEAL. 

IN SUPPORT OF THIS DEFENSE THE APPELLANT SET FORTH A LETTER, DATED
NOVEMBER 25, 1939, FROM THE SECRETARY OF THE INTERSTATE COMMERCE
COMMISSION, WHICH ADVISED "THAT THE NEW YORK, CHICAGO & ST. LOUIS
RAILROAD COMPANY HAS NEVER APPLIED FOR, NOR RECEIVED AUTHORIZATION
PURSUANT TO SECTION 20(A) OF THE INTERSTATE COMMERCE ACT TO ASSUME ANY
OBLIGATION OR LIABILITY AS LESSOR, LESSEE, GUARANTOR, ENDORSER, SURETY,
OR OTHERWISE IN RESPECT OF BONDS OF THE NORTHERN OHIO RAILWAY
COMPANY."  BUT IT ADDED THAT "FOR FURTHER INFORMATION I WOULD REFER" TO
A REPORTED CASE IN WHICH THE COMMISSION HAD SAID:  "THAT THE
CONSOLIDATION HAD THE EFFECT OF TRANSFERRING THE GUARANTY OF THE LAKE
ERIE TO THE NICKEL PLATE APPEARS TO BE GENERALLY ASSUMED BY THE PARTIES
TO THE REORGANIZATION PROCEEDING  ...  "  FN3 

THIS REFERENCE SUGGESTS AN EXAMINATION OF THE ADMINISTRATIVE HISTORY
OF THE NICKEL PLATE CONSOLIDATION AND FINANCING TO LEARN WHAT
ADMINISTRATIVE APPLICATION HAS BEEN MADE OF THE STATUTES IN QUESTION TO
THE DEBT STRUCTURE OF THIS PARTICULAR APPELLANT. 

SHORTLY AFTER ITS CONSOLIDATION THE APPELLANT ASKED THE INTERSTATE
COMMERCE COMMISSION TO CERTIFY UNDER SEC. 1 OF THE INTERSTATE COMMERCE
ACT THAT PUBLIC CONVENIENCE AND NECESSITY REQUIRED THE ACQUISITION AND
OPERATION BY IT OF THE RAILROAD LINES OWNED BY THE CONSTITUENT
COMPANIES.  IT ALSO ASKED AUTHORITY UNDER SEC. 20A TO ISSUE PREFERRED
AND COMMON CAPITAL STOCKS IN THE AMOUNTS FIXED BY THE AGREEMENTS AND
ARTICLES OF CONSOLIDATION.  IT DID NOT, HOWEVER, ASK UNDER SEC. 5 OF
THE ACT FOR APPROVAL OF ITS CONSOLIDATION.  ACQUISITION AND STOCK ISSUE
BY N.Y., C. & ST. L.R. CO., 79 I.C.C. 581. 

THIS APPLICATION REQUIRED THE COMMISSION TO CONSTRUE THE
TRANSPORTATION ACT OF 1920, WHICH HAD RECENTLY INTRODUCED A WIDE RANGE
OF INNOVATIONS INTO THE INTERSTATE COMMERCE ACT.  SECTION 5 OF THE
INTERSTATE COMMERCE ACT, AS AMENDED BY THE TRANSPORTATION ACT OF 1920,
DIRECTED THE COMMISSION TO FORMULATE "AS SOON AS PRACTICABLE" A
COMPLETE PLAN FOR THE CONSOLIDATION OF THE RAILWAYS INTO A LIMITED
NUMBER OF SYSTEMS.  AS SO AMENDED, SEC. 5 ALSO SUBJECTED VOLUNTARY
CONSOLIDATIONS TO THE APPROVAL OF THE COMMISSION AND REQUIRED THAT THEY
BE APPROVED IF FOUND, AMONG OTHER THINGS, TO BE IN HARMONY WITH SUCH
COMPLETE PLAN FOR GENERAL CONSOLIDATION AND IF IT APPEARED THAT THE
BONDS OF THE CONSOLIDATED CORPORATIONS AT PAR TOGETHER WITH THE
OUTSTANDING CAPITAL STOCK AT PAR WOULD NOT EXCEED THE VALUE OF THE
CONSOLIDATED PROPERTIES AS DETERMINED BY THE COMMISSION.  BY ADDING
SEC. 20A, THE TRANSPORTATION ACT PLACED THE ISSUE OF NEW SECURITIES AND
THE ASSUMPTION OF OBLIGATIONS UNDER THE CONTROL OF THE COMMISSION.  THE
ACT DID NOT, HOWEVER, PROVIDE FOR FEDERAL INCORPORATION OR FOR FEDERAL
CONSOLIDATION OF CARRIERS, BUT LEFT THE CREATION OF NEW OR CONSOLIDATED
CORPORATIONS TO STATE LAWS. 

AT THE TIME OF THE NICKEL PLATE'S APPLICATION FOR APPROVAL OF ITS
ACQUISITION AND OPERATION OF PROPERTIES AND THE ISSUE OF ITS STOCK, THE
COMMISSION HAD NOT COMPLETED ITS VALUATION OF THE CONSTITUENT COMPANIES
NOR ADOPTED A COMPLETE PLAN OF CONSOLIDATION.  THE QUESTION AROSE,
THEREFORE, WHETHER UNDER THE PECULIARITIES OF THE STATUTE THE
COMMISSION WAS YET AUTHORIZED TO EXERCISE ANY CONTROL OVER VOLUNTARY
CONSOLIDATIONS AND THE LEGAL INCIDENTS AND CONSEQUENCES THEREOF.  ON
THIS QUESTION THE COMMISSION WAS DIVIDED IN OPINION.  COMMISSIONER
EASTMAN, SUPPORTED BY COMMISSIONERS ESCH AND HALL, THOUGHT THE
AMENDMENT TO SEC. 5 OF THE INTERSTATE COMMERCE ACT SHOULD BE CONSTRUED
AS BEING IMMEDIATELY EFFECTIVE TO MAKE ANY CONSOLIDATION NOT APPROVED
BY THE COMMISSION UNLAWFUL.  HAD SUCH A VIEW PREVAILED, THE TERMS OF
THE NICKEL PLATE CONSOLIDATION WOULD HAVE BEEN SUBJECT TO SCRUTINY AT
THAT TIME.  EACH ITEM OF ITS DEBT WOULD HAVE BEEN EXAMINED AND APPROVED
OR REJECTED, AND ITS CAPITAL STRUCTURE, INCLUDING STOCK ISSUE AS WELL
AS DEBTS, WOULD HAVE BEEN TESTED BY THE VALUATION OF ITS PROPERTIES. 
THE MAJORITY OPINION, HOWEVER, HELD THAT THE COMMISSION'S APPROVAL
UNDER SEC. 5 WAS UNNECESSARY.  IT STATED:  "APPLICABLE STATE LAWS
AFFORD MEANS TO EFFECT THE CONSOLIDATION.  SUCH LAWS ARE IN FORCE. 
THEY ARE, IN FACT, THE LAWS TO WHICH RESORT MUST BE HAD TO EFFECTUATE
CONSOLIDATIONS WHICH THE INTERSTATE COMMERCE ACT IS DESIGNED TO
FACILITATE.  WE CAN NOT CONCLUDE THAT THEY HAVE BEEN NULLIFIED OR
SUPERSEDED.  AS VALID EXISTING LAWS WE HAVE NO POWER TO SUSPEND THEM. 
WHETHER STATE CORPORATIONS IN MATTERS REGARDING THEIR STATUS AS LEGAL
ENTITIES AS DISTINGUISHED FROM THEIR PARTICIPATION IN INTERSTATE
COMMERCE MAY AVAIL THEMSELVES OF SUCH LAWS DOES NOT DEPEND UPON OUR
ELECTION OR ANYTHING WE DO.  AUTHORITY IN US TO WITHHOLD APPROVAL IN
THE PUBLIC INTEREST OF SECURITY ISSUES WHEN STATE LAWS PERMIT
CONSOLIDATION DOES NOT MEAN THAT WE MAY NOT GRANT APPROVAL WHEN PUBLIC
INTEREST REQUIRES THAT WE DO SO.  FURTHERMORE, IN THE ABSENCE OF
MANDATORY PROVISIONS OF A FEDERAL STATUTE WE SHOULD GIVE FULL FAITH AND
CREDIT TO THE ACTS OF SOVEREIGN STATES, ESPECIALLY WHEN, AS IN THIS
CASE, THEIR ACTION IS UNANIMOUS."  79 I.C.C. AT PP. 585-586.  THE
MAJORITY OPINION ADDED THAT THE ACT DID NOT PROVIDE FOR "COMPULSORY
CONSOLIDATION," THAT SUCH A PROVISION HAD BEEN "CONSIDERED BY THE
CONGRESS AND REJECTED," AND THAT ACCORDINGLY "IT DOES NOT SEEM WE
SHOULD CONCLUDE THAT THE CONGRESS INTENDED TO PREVENT VOLUNTARY
CONSOLIDATIONS UNDER AVAILABLE STATE LAWS IN ORDER THEREBY TO FORCE
CONSOLIDATION UNDER SUCH GENERAL PLAN AS WE MAY ULTIMATELY ADOPT." 
ID., P. 586.  IT SAID THAT "IF THE CONGRESS HAD INTENDED TO SUSPEND
STATE LAWS UNTIL WE SHOULD AT SOME LATER TIME ELECT TO PERMIT THEIR
USE, SUCH INTENT WOULD HAVE BEEN MANIFESTED IN PLAIN TERMS."  IBID.
THE MAJORITY OF THE COMMISSION CONCLUDED THAT BY VIRTUE OF THE STATE
PROCEEDINGS AND NOTWITHSTANDING THE LACK OF APPROVAL BY THE INTERSTATE
COMMERCE COMMISSION "ALL THINGS NECESSARY TO THE COMPLETION AND
CONSUMMATION OF THE CONSOLIDATION HAVE BEEN EFFECTED."  79 I.C.C. AT P.
583. 

THE COMMISSION THEREUPON ENTERED AN ORDER GIVING APPELLANT ITS FORMAL
APPROVAL TO THE ISSUE OF NEW STOCK, INCLUDING THAT TO BE EXCHANGED
SHARE FOR SHARE FOR UPWARDS OF $23,000,000 PAR VALUE OF THE SHARES IN
THE OLD LAKE ERIE COMPANY, SUBJECT TO AN AGREEMENT TO CONTRIBUTE A
RELATIVELY SMALL PART OF IT TO THE TREASURY OF THE NEW COMPANY, ALL AS
PROVIDED IN THE AGREEMENTS AND ARTICLES OF CONSOLIDATION. 

THE COMMISSION DID NOT, IN AUTHORIZING THIS STOCK ISSUE, MAKE ANY
FINDING THAT SUCH STOCK AT PAR TOGETHER WITH BONDS AT PAR DID NOT
EXCEED THE VALUE OF THE CONSOLIDATED PROPERTIES.  IT MADE NO ORDER
APPROVING ASSUMPTION OF ANY INDEBTEDNESS OF ANY KIND.  IT APPEARS THAT
THE APPELLANT AT THAT TIME SOUGHT NO SUCH AUTHORITY.  APPROACHING
MATURITY OF SOME ISSUES OF BONDS EVENTUALLY FORCED IT TO TAKE SOME
CORPORATE ACTION, AND UPON SUCH LATER OCCASIONS IT SOUGHT AND OBTAINED
AUTHORIZATION TO EXTEND MATURITY DATES AND IN CONNECTION WITH SUCH
EXTENSIONS TO MAKE AN EXPRESS ASSUMPTION OF LIABILITY AS PRIMARY
OBLIGOR. 

ONE OF THE CONSTITUENT COMPANIES - THE OLD NICKEL PLATE - HAD
OUTSTANDING AT CONSOLIDATION $16,381,000 OF A BOND ISSUE DATED OCTOBER
1, 1887, MATURING OCTOBER 1, 1937.  THE ASSUMPTION OF THIS OBLIGATION
WAS NOT APPROVED UNTIL SEPTEMBER 17, 1937, AT WHICH TIME THE COMMISSION
APPROVED A PROPOSAL TO EXTEND THE MATURITY DATE FOR TEN YEARS AND TO
ASSUME OBLIGATION AS PRIMARY OBLIGOR IN RESPECT OF THE EXTENDED BONDS. 
N.Y., C. & ST. L.R. CO. BONDS AND ASSUMPTION, 221 I.C.C. 772.  THE
PUBLISHED REPORTS OF THE COMMISSION DISCLOSE TWO INSTANCES OF SIMILAR
APPROVAL OF EXTENSION AND ASSUMPTION OF PRIMARY LIABILITY WITH RESPECT
TO BONDS OF THE LAKE ERIE & WESTERN OUTSTANDING AT THE DATE OF
CONSOLIDATION, ONE AS RECENT AS JUNE 7, 1941.  N.Y., C. & ST. L.R. CO.
ASSUMPTION OF OBLIGATION, 217 I.C.C. 598; N.Y., C. & ST. L.R. CO.
ASSUMPTION OF OBLIGATION, 247 I.C.C. 71. 

IT DOES NOT APPEAR THAT EITHER THE NICKEL PLATE OR THE COMMISSION
QUESTIONED THE NICKEL PLATE'S OBLIGATION TO PAY EITHER INTEREST OR
PRINCIPAL OF THE DEBTS OF THE CONSTITUENT COMPANIES, ALTHOUGH FOR LONG
PERIODS AFTER THE CONSOLIDATION THEY WERE WITHOUT THE COMMISSION'S
APPROVAL.  INSTEAD, THE COMMISSION HAS INDICATED THAT IT REGARDED THE
STATE LAW AS ADEQUATE TO ATTACH LIABILITY TO THE NEW COMPANY FOR SUCH
DEBTS.  IN 1923, SHORTLY AFTER THE CONSOLIDATION, THE NICKEL PLATE
APPLIED UNDER SEC. 20A OF THE INTERSTATE COMMERCE ACT TO ENDORSE ITS
GUARANTY OF PAYMENT UPON CERTAIN BONDS TO BE ISSUED BY A CONSTITUENT
COMPANY, AND THE PREMISE UPON WHICH RELIEF WAS GRANTED WAS STATED BY
THE COMMISSION:  "IT APPEARS THAT THE CONSOLIDATION WAS COMPLETED ON
APRIL 11, 1923, AND THAT THE NEW COMPANY IS NOW VESTED WITH THE
PROPERTY, RIGHTS, AND FRANCHISES OF THE NICKEL PLATE AND OTHER
CONSTITUENT COMPANIES, SUBJECT TO ALL THEIR DEBTS, OBLIGATIONS, AND
LIABILITIES."  N.Y., C. & ST. L.R.R. BONDS, 82 I.C.C. 365, 366.  THE
FOLLOWING YEAR, IN DEALING WITH ANOTHER CONSTITUENT COMPANY, THE
COMMISSION DEFINED THE STATUS OF THIS APPELLANT AS FOLLOWS:  "THE
APPLICANT IS THE SUCCESSOR, BY CONSOLIDATION, OF THE TOLEDO, ST. LOUIS
& WESTERN RAILROAD COMPANY AND OTHER COMPANIES, AND BY VIRTUE OF SUCH
CONSOLIDATION HAS ACQUIRED ALL PROPERTY, RIGHTS, AND POWERS, AND HAS
ASSUMED ALL OBLIGATIONS OF THE TOLEDO, ST. LOUIS & WESTERN RAILROAD
COMPANY."  PLEDGE OF BONDS BY N.Y., C. & ST. L.R.R., 86 I.C.C. 465. 

THE COMMISSION, AS WELL AS APPELLANT, AS RECENTLY AS 1938 GAVE
UNMISTAKABLE RECOGNITION TO THE VALIDITY OF THE GUARANTY ON WHICH
APPELLEE HAS RECOVERED.  THIS APPEARS FROM THE REORGANIZATION
PROCEEDINGS UNDER SEC. 77 OF THE BANKRUPTCY ACT INVOLVING THE
PROPERTIES OF THE NORTHERN OHIO, THE ORIGINAL OBLIGOR WHOSE PAYMENTS
WERE GUARANTEED BY APPELLANT'S CONSTITUENT COMPANY, THE LAKE ERIE &
WESTERN.  THE COMMISSION STATED THAT:  "FROM THE CONSOLIDATION OF THE
LAKE ERIE & WESTERN WITH THE NEW YORK, CHICAGO & ST. LOUIS, RESULTING
LIABILITY OF THE LATTER ON THE LAKE ERIE'S GUARANTY OF THE NORTHERN'S
BONDS THUS IS APPARENTLY ADMITTED."  FN4  UPON THAT PREMISE THE
COMMISSION MADE ALLOWANCE IN THE PLAN OF REORGANIZATION FOR THE
INDEMNIFICATION OF THE APPELLANT BECAUSE, IF REQUIRED TO MAKE GOOD ON
THE GUARANTY, IT WOULD BECOME SUBROGATED TO THE RIGHTS OF THE NORTHERN
OHIO BONDHOLDERS AS A MORTGAGE CREDITOR AND WOULD BECOME A GENERAL
CREDITOR IN THE AMOUNT OF ANY DEFICIENCY. 

WE DRAW THE FOLLOWING CONCLUSIONS FROM THIS HISTORY OF THE NICKEL
PLATE'S EXPERIENCE BEFORE THE INTERSTATE COMMERCE COMMISSION:    BY ITS
DECISION IN ACQUISITION AND STOCK ISSUE BY N.Y., C. & ST. L.R. CO., 79
I.C.C. 581, THE COMMISSION ADOPTED THE CONSTRUCTION OF THE
TRANSPORTATION ACT WHICH THE NICKEL PLATE URGED UPON IT AND HELD ITSELF
PRECLUDED FROM SUPERVISION OF THE CONSOLIDATION UNDER SEC. 5.  THIS
COURT SUBSEQUENTLY APPROVED THAT CONSTRUCTION IN SNYDER V. N.Y., C. &
ST. L.R. CO., 118 OHIO ST. 72, 160 N.E. 615, 278 U.S. 578, HOLDING THAT
THE NICKEL PLATE HAD THE RIGHTS OF A DE JURE CORPORATION
NOTWITHSTANDING ITS FAILURE TO HAVE ITS CREATION BY CONSOLIDATION
APPROVED BY THE COMMISSION, ON THE GROUND THAT THE CONSOLIDATION TOOK
PLACE AT A TIME WHEN SEC. 5 HAD "NOT AS YET BECOME APPLICABLE."    IT
SEEMS CLEAR THAT THE COMMISSION APPLIED A LIKE CONSTRUCTION OF ITS
POWERS UNDER SEC. 20A OVER THE ASSUMPTION OF THE DEBTS AND LIABILITIES
OF THE CONSTITUENT COMPANIES.  THAT IT DELIBERATELY DEFERRED TO A LATER
DAY CONSIDERATION OF ALL DEBTS SEEMS THE CORRECT INFERENCE FROM ITS
EXPRESS CAVEAT THAT "NOTHING IN THIS REPORT SHALL BE CONSTRUED AS
RESTRICTING THE COMMISSION IN ITS ACTION WITH RESPECT TO THE
PROMULGATION OF A COMPLETE CONSOLIDATION PLAN OR UPON THE SUBJECT OF
VALUATION."  79 I.C.C. AT P. 585.  EVEN APART FROM THIS CAVEAT, IT IS
CLEAR THAT THE COMMISSION'S FAILURE AT THIS TIME TO MAKE EITHER ORDER
OR INVESTIGATION WITH REFERENCE TO ANY DEBTS OR LIABILITIES WAS DUE TO
NO DELUSION THAT THE NICKEL PLATE WAS BEING LAUNCHED AS A DEBT-FREE
RAILROAD.  IT WAS A MATTER OF COMMON KNOWLEDGE THAT THE CONSTITUENT
COMPANIES WERE HEAVILY IN DEBT FOR WHICH NO PROVISION HAD BEEN MADE
OTHER THAN BY ATTACHMENT TO THE NEW CORPORATION UNDER STATE LAW.  THIS
AND THE RESULTING BURDEN OF FIXED CHARGES ON THE REVENUES OF THE NEW
COMPANY WERE WELL KNOWN TO THE COMMISSION.  FN5  THE DISAPPEARANCE OF
ALL DEBT FROM CONSIDERATION BY THE COMMISSION CANNOT BE ACCOUNTED FOR
EXCEPT ON THE GROUND THAT THE COMMISSION HELD ITSELF WITHOUT
JURISDICTION TO DEAL WITH IT UNTIL THE COMPANY SHOULD PROPOSE SOME
ACTION OF ITS OWN, SUCH AS EXTENSION, ENDORSEMENT, OR ISSUE OF
SUBSTITUTE SECURITIES - AS DISTINGUISHED FROM THE EFFECT OF THE LAW OF
CONSOLIDATION ON THE FACT OF PRE-EXISTING DEBTS.  THAT SUCH WAS THE
HOLDING IS FURTHER INDICATED BY THE COMMISSION'S SUBSEQUENT HANDLING OF
THE OBLIGATIONS OF THE CONSTITUENT COMPANIES. 

WHETHER WE WOULD AGREE WITH THE COMMISSION'S INTERPRETATION OF THE
ACT AS AN ORIGINAL MATTER, IT IS NOT NECESSARY TO DECIDE. 
CONSIDERATIONS OF PUBLIC INTEREST CERTAINLY SHOULD HAVE WEIGHED HEAVILY
IN FAVOR OF THE COMMISSION, HAD IT ASSERTED POWER TO REVIEW THE DEBTS
OF THE NEW COMPANY BEFORE GIVING EVEN TENTATIVE AND FORMAL APPROVAL TO
CAPITALIZATION OF ITS EQUITY.  WHAT WE MUST NOW DECIDE IS THE PRESENT
EFFECT OF THE COMMISSION'S INTERPRETATION OF ITS POWERS AS TO THE
INDEBTEDNESS OF THIS PARTICULAR APPELLANT, WOVEN, AS IT HAS BEEN, BY A
SERIES OF ACTIONS BY THE COMMISSION, INTO THE WHOLE FINANCIAL FABRIC OF
THIS IMPORTANT CARRIER SYSTEM.  WE ARE NOW ASKED BLINDLY TO UNRAVEL WE
KNOW NOT WHAT, BY REVERSING A CONSISTENT AND LONGSTANDING
INTERPRETATION OF SEC. 20A BY THE ADMINISTRATIVE BODY TO WHICH ITS
ENFORCEMENT WAS COMMITTED.  FN6  WE ARE ASKED TO DO THIS TO THE
ENRICHMENT OF A STOCKHOLDER EQUITY WHICH ITSELF WAS CAPITALIZED WITH NO
THOROUGH SCRUTINY BY VIRTUE OF THE SAME INTERPRETATION.  WE ARE ASKED
TO DO THIS ALTHOUGH THE COMMISSION, WITH KNOWLEDGE OF THE CLAIM OF
ILLEGALITY, HAS SET ASIDE SECURITIES IN THE AKRON REORGANIZATION TO
COMPENSATE IT IN SOME MEASURE AND HAS MADE NO EFFORT TO ENJOIN THE
NICKEL PLATE FROM USING ITS REVENUES TO SATISFY, IN PART AT LEAST, THE
CLAIMS OF THESE BONDHOLDERS. 

UNDER THE CIRCUMSTANCES OF THIS CASE, THE ADMINISTRATIVE
INTERPRETATION ON WHICH THE COMMISSION HAS ACTED IN ITS LONG COURSE OF
DEALING WITH NICKEL PLATE AFFAIRS SHOULD NOT BE UPSET.  UNITED STATES
V. CHICAGO NORTH SHORE R. CO., 288 U.S. 1. 

THE JUDGMENT APPEALED FROM IS AFFIRMED. 

FN1  THE COMPLETE TEXT OF SEC. 143 OF THE NEW YORK RAILROAD LAW WAS
AS FOLLOWS: 

"THE RIGHTS OF ALL CREDITORS OF, AND ALL LIENS UPON THE PROPERTY OF,
EITHER OF SUCH CORPORATIONS, PARTIES TO SUCH AGREEMENT AND ACT, SHALL
BE PRESERVED UNIMPAIRED, AND THE RESPECTIVE CORPORATIONS SHALL BE
DEEMED TO CONTINUE IN EXISTENCE TO PRESERVE THE SAME, AND ALL DEBTS AND
LIABILITIES INCURRED BY EITHER OF SUCH CORPORATIONS SHALL THENCEFORTH
ATTACH TO SUCH NEW CORPORATION, AND BE ENFORCED AGAINST IT AND ITS
PROPERTY TO THE SAME EXTENT AS IF INCURRED OR CONTRACTED BY IT.  NO
ACTIONS OR PROCEEDINGS IN WHICH EITHER OF SUCH CORPORATIONS IS A PARTY
SHALL ABATE OR BE DISCONTINUED BY SUCH AGREEMENT AND ACT OF
CONSOLIDATION, BUT MAY BE CONDUCTED TO FINAL JUDGMENT IN THE NAMES OF
SUCH CORPORATIONS, OR SUCH NEW CORPORATION MAY BE, BY ORDER OF THE
COURT, ON MOTION SUBSTITUTED AS A PARTY." 

FN2  SEC. 20A (2) OF THE INTERSTATE COMMERCE ACT PROVIDED THAT: 

"IT SHALL BE UNLAWFUL FOR ANY CARRIER TO ISSUE ANY SHARE OF CAPITAL
STOCK OR ANY BOND OR OTHER EVIDENCE OF INTEREST IN OR INDEBTEDNESS OF
THE CARRIER (HEREINAFTER IN THIS SECTION COLLECTIVELY TERMED
'SECURITIES') OR TO ASSUME ANY OBLIGATION OR LIABILITY AS LESSOR,
LESSEE, GUARANTOR, INDORSER, SURETY, OR OTHERWISE, IN RESPECT OF THE
SECURITIES OF ANY OTHER PERSON, NATURAL OR ARTIFICIAL, EVEN THOUGH
PERMITTED BY THE AUTHORITY CREATING THE CARRIER CORPORATION, UNLESS AND
UNTIL, AND THEN ONLY TO THE EXTENT THAT, UPON APPLICATION BY THE
CARRIER, AND AFTER INVESTIGATION BY THE COMMISSION OF THE PURPOSES AND
USES OF THE PROPOSED ISSUE AND THE PROCEEDS THEREOF, OR OF THE PROPOSED
ASSUMPTION OF OBLIGATION OR LIABILITY IN RESPECT OF THE SECURITIES OF
ANY OTHER PERSON, NATURAL OR ARTIFICIAL, THE COMMISSION BY ORDER
AUTHORIZES SUCH ISSUE OR ASSUMPTION.  THE COMMISSION SHALL MAKE SUCH
ORDER ONLY IF IT FINDS THAT SUCH ISSUE OR ASSUMPTION:  (A) IS FOR SOME
LAWFUL OBJECT WITHIN ITS CORPORATE PURPOSES, AND COMPATIBLE WITH THE
PUBLIC INTEREST, WHICH IS NECESSARY OR APPROPRIATE FOR OR CONSISTENT
WITH THE PROPER PERFORMANCE BY THE CARRIER OF SERVICE TO THE PUBLIC AS
A COMMON CARRIER, AND WHICH WILL NOT IMPAIR ITS ABILITY TO PERFORM THAT
SERVICE, AND (B) IS REASONABLY NECESSARY AND APPROPRIATE FOR SUCH
PURPOSE." 

FN3  AKRON, C. & Y. RY. CO. & NORTHERN O. RY. CO. REORGANIZATION, 236
I.C.C. 214, 216-217. 

COMPARE THE FOLLOWING, FROM A LETTER WRITTEN BY THE DIRECTOR OF THE
COMMISSION TO ONE ZINMAN, DATED MARCH 19, 1940, REFERRING TO THE NICKEL
PLATE GUARANTY ON THE NORTHERN OHIO BONDS, AND APPEARING IN THE
COMMISSION'S FILE IN ACQUISITION AND STOCK ISSUE BY N.Y., C. & ST. L.R.
CO., 79 I.C.C. 581: 

"AS TO THE MATTER OF ASSUMPTION OF OBLIGATION AND LIABILITY IN
RESPECT OF THE SECURITIES OF OTHERS, IT IS OUR UNDERSTANDING THAT NO
AUTHORITY WAS SOUGHT NOR GRANTED IN CONNECTION WITH THE APPLICATION
RECORDED UNDER THE ABOVE FINANCE DOCKET NUMBER.  IT IS OUR FURTHER
UNDERSTANDING THAT THE CONSOLIDATED COMPANY TOOK THE PROPERTIES,
RIGHTS, AND FRANCHISES OF THE CONSTITUENT COMPANIES, SUBJECT TO ALL
THEIR DEBTS, OBLIGATIONS, AND LIABILITIES, SUCH AS MIGHT BE IMPOSED BY
THE CONSOLIDATION STATUTES OF THE STATES OF THE CONSTITUENT COMPANIES. 
SEE 82 I.C.C. 365(366)." 

FN4  AKRON, C. & Y. RY. CO. AND NORTHERN O. RY. CO. REORGANIZATION,
228 I.C.C. 645, 647. 

THE PLAN APPROVED BY THE COMMISSION PROVIDED: 

"APPROPRIATE SECURITIES OF THE NEW COMPANY AS HEREINAFTER NOTED,
CONSISTENT WITH THE OTHER PROVISIONS OF THE PLAN, WITH WHICH TO
RECOMPENSE THE NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY FOR THE
DEBTOR'S AND THE INTERVENING DEBTOR'S LIABILITY TO IT FOR AMOUNTS
EXPENDED IN THE PERFORMANCE OF ITS GUARANTY OF THE FIRST-MORTGAGE BONDS
OF THE INTERVENING DEBTOR, SHALL BE ISSUED AND HELD IN TREASURY."  ID.,
PP. 679-680.  ALSO, "THE NEW YORK, CHICAGO & ST. LOUIS RAILROAD
COMPANY, UPON PRESENTATION TO THE TREASURER OF THE NEW COMPANY OF
APPROPRIATE PROOF OF LOSS SUSTAINED IN THE PERFORMANCE OF ITS CONTRACT
OF GUARANTY OF BONDS OF THE INTERVENING DEBTOR, SHALL RECEIVE OF THE
NEW COMPANY STOCK ISSUED IN REORGANIZATION AND HELD IN TREASURY, FOR
EACH $100 OF LOSS SO PROVED, $22.79, PAR VALUE, OF NEW COMMON STOCK;
AND SHALL PARTICIPATE EQUALLY AND RATABLY WITH THE HOLDERS OF CLASS A
WARRANTS IN ANY DISTRIBUTION OF STOCK PURSUANT THERETO, EACH $100 OF
PROVED LOSS ENTITLING THE NEW YORK, CHICAGO & ST. LOUIS RAILROAD
COMPANY TO PARTICIPATE IN THE DISTRIBUTION TO THE SAME EXTENT AS ONE
CLASS A WARRANT."  ID., PP. 681-682. 

THE TRUE INWARDNESS OF THESE PROVISIONS OF THE REORGANIZATION PLAN
APPEARS FROM THE OPINION: 

"THE NEW YORK, CHICAGO & ST. LOUIS SHOULD BE TREATED AS THOUGH HAVING
A CLAIM EQUAL TO THE LOSSES IT WILL SUSTAIN IN THE PERFORMANCE OF ITS
GUARANTY.  THE MATHEMATICAL MAXIMUM OF THIS CLAIM WOULD BE EQUAL TO THE
PRINCIPAL OF THE OUTSTANDING NORTHERN BONDS PLUS THE FOUR YEARS OF
OVERDUE INTEREST THEREON, OR $3,000,000.  THE PROBABLE MAXIMUM WOULD BE
VERY MUCH LESS, BUT CANNOT BE DETERMINED ON ANY DEFINITE BASIS. 
SECURITIES SHOULD ACCORDINGLY BE RESERVED PENDING PERFORMANCE OF THE
NEW YORK, CHICAGO & ST. LOUIS GUARANTY ON THE BASIS OF ITS HAVING A
$3,000,000 CLAIM."  ID., P. 673. 

THE SECURITIES, HOWEVER, THUS SET ASIDE TO THE NICKEL PLATE WERE TO
COME BACK TO OTHERS "AS MAY BE MADE POSSIBLE THROUGH THE NEW YORK,
CHICAGO & ST. LOUIS SETTLING WITH THE NORTHERN BONDHOLDERS, OR
OTHERWISE DISCHARGING ITS LIABILITIES, FOR LESS THAN THE MAXIMUM.  ...
"  ID., PP. 673-674. 

AN EFFORT WAS APPARENTLY MADE TO GET RID OF THIS OBLIGATION, IN PART
AT LEAST, IN THE REORGANIZATION; BUT THE COMMISSION HELD THAT THIS
GUARANTY RAN TO EACH NORTHERN BONDHOLDER INDIVIDUALLY, AND THAT THE
NICKEL PLATE COULD NOT DEAL WITH THE BONDHOLDERS AS A CLASS, ON THE
GROUND THAT THERE APPEARED TO BE NO PROVISION IN SEC. 77 "FOR ENFORCING
ON ALL IN LIEU OF THE GUARANTY A COMPROMISE THAT MAY BE AGREEABLE TO A
MAJORITY BUT NOT ACCEPTABLE TO A MINORITY, AND NO PROVISION FOR
DISCHARGING IN THESE PROCEEDINGS THE NEW YORK, CHICAGO & ST. LOUIS, A
SOLVENT OBLIGOR ABLE TO MEET ITS DEBTS AS THEY MATURE, FROM ANY OF ITS
OBLIGATIONS.  IT FOLLOWS THAT A PROVISION IN A PLAN OF REORGANIZATION
OF THE DEBTORS, PURSUANT TO SECTION 77, RELEASING THE GUARANTY, WOULD
BE OF SUCH DOUBTFUL VALIDITY AS TO REQUIRE OUR DISAPPROVAL, AND THAT
SETTLEMENTS FOR THIS GUARANTY SHOULD BE MADE SEPARATELY FROM THE PLAN
OF REORGANIZATION.  ...  "  ID., P. 667. 

FN5  THE APPLICATION OF THE NICKEL PLATE ASKED AUTHORITY TO ISSUE
327,200 SHARES OF PREFERRED STOCK AND 462,479 SHARES OF COMMON STOCK TO
BE EXCHANGED SHARE FOR SHARE FOR THE STOCKS OF THE CONSTITUENT
COMPANIES.  IT INCLUDED A GENERAL BALANCE SHEET OF EACH CONSTITUENT
COMPANY AND A CONSOLIDATED BALANCE SHEET SHOWING LONG-TERM DEBTS OF THE
CONSTITUENT COMPANIES AGGREGATING $78,897,000, WHICH ITEMS AND EXACT
AMOUNTS WERE CARRIED INTO THE CONSOLIDATED BALANCE SHEET. 

THE LAKE ERIE & WESTERN RAILROAD COMPANY WAS SHOWN TO HAVE
OUTSTANDING CAPITAL STOCKS WITH A PAR VALUE OF $23,680,000, $13,895,600
OF LONG-TERM DEBT, AND $4,996,944 OF "DEFERRED LIABILITIES."  THE STOCK
WAS REPLACED WITH A LIKE AMOUNT OF STOCK IN THE NEW COMPANY, AND THE
DEBT AND "DEFERRED LIABILITIES" WERE CARRIED IN FULL INTO THE
CONSOLIDATED BALANCE SHEET UNDER THE SAME HEADINGS.  THE OBLIGATION IN
SUIT WAS NOT SPECIFIED; PERHAPS IT WAS INCLUDED IN "DEFERRED
LIABILITIES." 

A STOCKHOLDERS' PROTECTIVE COMMITTEE OF THE OLD NICKEL PLATE FILED
OBJECTIONS TO THE PLAN OF CONSOLIDATION, ONE OF THE GROUNDS OF WHICH
WAS THE ALLEGED ASSUMPTION OF A HEAVY BOND INDEBTEDNESS AHEAD OF THE
STOCK, AND COMPLAINT WAS SPECIFICALLY MADE OF THE INDEBTEDNESS OF THE
LAKE ERIE & WESTERN. 

FN6  THIS INTERPRETATION IS NOT INCONSISTENT WITH THE COMMISSION'S
PRACTICE IN OTHER CASES.  ASSUMPTION OF OBLIGATION BY HUDSON RIVER
CONNECTING R.R., 72 I.C.C. 595, DEALT WITH ASSUMPTION OF LIABILITY ON A
MORTGAGE WHICH THE APPLICANT HAD AGREED TO ASSUME AS PART OF THE
PURCHASE PRICE OF A PIECE OF LAND.  IT HAD NO CONNECTION WITH ANY
CONSOLIDATION PROCEEDING.  ROCK ISLAND SYSTEM CONSOLIDATION, 193 I.C.C.
395, WAS DECIDED AFTER AMENDMENT OF SEC. 5 BY THE EMERGENCY RAILROAD
TRANSPORTATION ACT APPROVED JUNE 16, 1933.  THE COMMISSION HAD BY THE
TIME OF THAT DECISION PROMULGATED A PLAN OF CONSOLIDATION, AND IT FOUND
THAT THE ROCK ISLAND CONSOLIDATION WOULD BE "IN HARMONY WITH AND IN
FURTHERANCE OF THE PLAN."  ID., P. 403.  IT WAS THE ABSENCE OF SUCH A
PLAN THAT DEFEATED JURISDICTION OF THE COMMISSION TO APPROVE THE NICKEL
PLATE CONSOLIDATION.  SNYDER V. N.Y., C. & ST. L.R. CO., SUPRA. 

MR. JUSTICE DOUGLAS: 

WHILE I AGREE WITH THE OPINION OF THE COURT, I THINK AN ELABORATION
OF THE POINT, WHICH IS THE NUB OF THE CASE, IS DESIRABLE IN VIEW OF
CERTAIN OBSERVATIONS IN THE DISSENTING OPINION. 

APPELLANT IS A CORPORATION FORMED UNDER SEC. 141 OF NEW YORK RAILROAD
LAW, WHICH PROVIDES FOR CONSOLIDATION OF RAILROAD CORPORATIONS.  ON THE
FILING OF THE ARTICLES OR AGREEMENT OF CONSOLIDATION, THE SEVERAL
CONSTITUENT COMPANIES "SHALL BE ONE CORPORATION BY THE NAME PROVIDED IN
SUCH AGREEMENT."  AND SEC. 141 ALSO PROVIDES THAT "SUCH ACT OF
CONSOLIDATION SHALL NOT RELEASE SUCH NEW CORPORATION FROM ANY OF THE
RESTRICTIONS, LIABILITIES OR DUTIES OF THE SEVERAL CORPORATIONS SO
CONSOLIDATED."  BY SEC. 143 ALL DEBTS OF THE CONSTITUENT COMPANIES
"SHALL THENCEFORTH ATTACH TO SUCH NEW CORPORATION, AND BE ENFORCED
AGAINST IT AND ITS PROPERTY TO THE SAME EXTENT AS IF INCURRED OR
CONTRACTED BY IT."  WE ARE POINTED TO NO PROVISION OF THE NEW YORK LAW
WHICH WOULD PERMIT THE CREATION OF THE NEW CONSOLIDATED CORPORATION
WITHOUT THE ATTACHMENT OF THE DEBTS OF THE CONSTITUENT COMPANIES. 

SNYDER V. NEW YORK, C. & ST. L.R. CO., 118 OH. ST. 72, 160 N.E. 615,
AFF'D 278 U.S. 578, HELD THAT AUTHORITY FROM THE COMMISSION WAS NOT
NECESSARY TO CREATE THIS CONSOLIDATED CORPORATION.  A NECESSARY AND
INHERENT INCIDENT OF ITS CREATION WAS THE ATTACHMENT OF THESE
OBLIGATIONS.  HENCE, I DO NOT SEE HOW WE CAN SAY THAT, ALTHOUGH
AUTHORITY FROM THE COMMISSION WAS NOT NECESSARY TO CREATE APPELLANT,
SUCH AUTHORITY WAS NECESSARY IN ORDER FOR THIS CONSOLIDATED CORPORATION
TO MEET THE REQUIREMENTS WHICH THE NEW YORK LAW EXACTED AS CONDITIONS
TO ITS CREATION.  BUT IF WE HELD THAT AN ATTACHMENT OF LIABILITY UNDER
THE NEW YORK CONSOLIDATION ACT WAS AN "ASSUMPTION" OF LIABILITY WITHIN
THE MEANING OF SEC. 20(A), WE WOULD BE DOING JUST THAT.  HENCE, I FEEL
FORCED TO CONCLUDE THAT, IN CASE OF THIS TYPE OF CONSOLIDATION,
"ASSUMPTION" IN SEC. 20(A) DOES NOT INCLUDE ATTACHMENT OF LIABILITY BY
VIRTUE OF THE FILING OF ARTICLES OF CONSOLIDATION UNDER A STATE
STATUTE, THOUGH IT WOULD, OF COURSE, INCLUDE THE ISSUANCE OF ANY
SECURITY OR THE INCURRENCE OR EXTENSION OF ANY OBLIGATION SUBSEQUENT TO
CONSOLIDATION.  SUCH IS ONE CONSEQUENCE OF THE FAILURE TO FOLLOW
COMMISSIONER EASTMAN'S VIEWS IN ACQUISITION AND STOCK ISSUE OF N.Y., C.
& ST. L.R. CO., 79 I.C.C. 581.  BUT I DO NOT SEE HOW, IN ALL FAIRNESS,
WE CAN REOPEN AT THIS LATE STAGE THE UNFORTUNATE DECISION IN THE SNYDER
CASE. 

MR. CHIEF JUSTICE STONE: 

I THINK THE JUDGMENT SHOULD BE REVERSED, BUT WITHOUT PREJUDICE TO ANY
RIGHT OF APPELLEE TO RECOVER UNDER SEC. 20(A)(11) OF THE INTERSTATE
COMMERCE ACT. 

I AM NOT NOW PREPARED TO SAY THAT APPELLEE COULD NOT HAVE RECOVERED
UNDER THE PROVISIONS OF SEC. 20(A)(11) HAD COUNSEL SEEN FIT TO PRESENT
THE QUESTION FOR DECISION.  FN1  BUT THE ONLY QUESTION WHICH THEY HAVE
BRIEFED AND ARGUED HERE IS WHETHER SEC. 20(A)(2) PRECLUDES THE
IMPOSITION OF THE ASSERTED LIABILITY UPON APPELLANT WHERE, AS IS THE
CASE HERE, ITS ASSUMPTION BY APPELLANT HAS NOT BEEN APPROVED BY ORDER
OF THE COMMISSION AS REQUIRED BY THAT SECTION.  THE COURT AVOIDS
DECISION OF THIS QUESTION BY DECLARING THAT THE COMMISSION HAS DECLINED
TO GIVE ITS APPROVAL BECAUSE IT HAS CONSTRUED SEC. 20(A)(2) AS
INAPPLICABLE AND THAT WE ARE BOUND BY THAT CONSTRUCTION. 

EXAMINATION OF THE COMMISSION'S OPINIONS AND ORDERS FROM WHICH THE
COURT DRAWS ITS CRYPTIC ANSWER TO THE QUESTION BEFORE US MAKES IT PLAIN
THAT THE COMMISSION HAS PLACED NO SUCH CONSTRUCTION ON THE STATUTE IN
ANY CASE, AND THAT, IN THE CASES CITED RELATING TO THE NICKEL PLATE
CONSOLIDATION, IT HAS NEVER HAD ANY OCCASION TO CONSTRUE SEC.
20(A)(2).  ON THE CONTRARY, IN SEVERAL CASES, THE COMMISSION HAS
CONSTRUED SEC. 20(A)(2) AS APPLICABLE TO OBLIGATIONS LIKE THE PRESENT,
WHICH "ATTACH" BY OPERATION OF STATE LAW TO THE ACQUISITION BY THE
CARRIER OF THE PROPERTY OF OTHER ROADS, AND IN CONFORMITY TO THAT
CARRIER. 

IN THE CASES BEFORE THE COMMISSION ON WHICH THE COURT RELIES, IT
APPEARS THAT THE COMMISSION WAS NOT ASKED TO PASS UPON THE QUESTION NOW
BEFORE US AND DID NOT PURPORT TO PASS UPON IT.  THE OPINION OF THE
COURT THUS RESTS ON NO MORE SUBSTANTIAL BASIS THAN THE CIRCUMSTANCE
THAT THE COMMISSION HAS ACTED FAVORABLY ON AN APPLICATION OF APPELLANT
TO BE PERMITTED TO OPERATE THE CONSOLIDATED LINES AND TO ISSUE
SECURITIES IN CONFORMITY TO THE PLAN OF CONSOLIDATION, IN A PROCEEDING
IN WHICH THE COMMISSION WAS NEITHER ASKED TO TAKE, NOR TOOK, ANY ACTION
WITH RESPECT TO ASSUMPTION OF LIABILITIES; AND THIS UNDER A STATUTORY
SCHEME OF CONTROL WHICH PLAINLY CONTEMPLATES THAT A CONSOLIDATION MAY
GO INTO EFFECT WITHOUT ADOPTION OF ITS ASSUMPTION OF LIABILITY FEATURE,
WHICH IN ANY CASE CAN BECOME OPERATIVE ONLY BY ORDER OF THE COMMISSION
APPROVING IT UPON APPLICATION AND ON FINDINGS THAT THE PUBLIC INTEREST
WILL BE SERVED.  ROCK ISLAND SYSTEM CONSOLIDATION, 193 I.C.C. 395, 403
04; ACQUISITION AND STOCK ISSUE BY P., O. & D.R.R., 105 I.C.C. 189,
193.  THE COURT INFERS THE COMMISSION'S REFUSAL TO APPROVE THE
ASSUMPTION OF LIABILITY FOR WANT OF JURISDICTION FROM THE SILENCE AND
INACTION OF THE COMMISSION WHEN IT WAS NOT CALLED UPON TO SPEAK OR TO
ACT, EITHER BY THE STATUTE OR BY ANY APPLICATION PENDING BEFORE IT. 

PROHIBITIONS.  ONE IS IMPOSED ON THE ISSUANCE OF SECURITIES BY
RAILROADS WITHOUT APPROVAL OF THE COMMISSION.  THE OTHER MAKES IT
UNLAWFUL FOR SUCH A CARRIER TO ASSUME ANY OBLIGATION IN RESPECT OF
SECURITIES ISSUED BY OTHERS, "EVEN THOUGH PERMITTED BY THE AUTHORITY
CREATING THE CARRIER CORPORATION, UNLESS AND UNTIL, AND THEN ONLY TO
THE EXTENT THAT, UPON APPLICATION BY THE CARRIER, AND AFTER
INVESTIGATION BY THE COMMISSION OF THE PURPOSES AND USES OF  ...  THE
PROPOSED ASSUMPTION OF OBLIGATION  ...  THE COMMISSION BY ORDER
AUTHORIZES SUCH ISSUE OR ASSUMPTION."  THE STATUTE COMMANDS WITH
PARTICULARITY THAT "THE COMMISSION SHALL MAKE SUCH ORDER ONLY IF IT
FINDS THAT SUCH ISSUE OR ASSUMPTION:  (A) IS FOR SOME LAWFUL OBJECT
WITHIN ITS CORPORATE PURPOSES, AND COMPATIBLE WITH THE PUBLIC INTEREST,
WHICH IS NECESSARY OR APPROPRIATE FOR OR CONSISTENT WITH THE PROPER
PERFORMANCE BY THE CARRIER OF SERVICE TO THE PUBLIC AS A COMMON
CARRIER, AND WHICH WILL NOT IMPAIR ITS ABILITY TO PERFORM THAT SERVICE,
AND (B) IS REASONABLY NECESSARY AND APPROPRIATE FOR SUCH PURPOSE." 

IT WILL BE NOTED THAT THERE IS NO REQUIREMENT OF THE STATUTE THAT
APPLICATIONS FOR THE ACQUISITION OF OTHER ROADS OR FOR THE APPROVAL OF
SECURITY ISSUES, AND APPLICATIONS FOR APPROVAL OF THE ASSUMPTION OF
GUARANTEE OBLIGATIONS, SHALL BE UNITED IN A SINGLE PROCEEDING.  INDEED,
IT IS CLEAR THAT THE STATUTE LEAVES THE COMMISSION FREE TO APPROVE THE
ONE AND REJECT AN APPLICATION FOR THE OTHER.  AND IT APPEARS THAT THE
UNIFORM PRACTICE OF THE COMMISSION HAS BEEN, AS THE STATUTE DIRECTS, TO
ENTERTAIN NEITHER, EXCEPT ON AN APPLICATION ASKING THE DESIRED
APPROVAL.  AND WHERE MORE THAN ONE IS ASKED, THE COMMISSION HAS BY ITS
ORDER SEPARATELY DEALT WITH THOSE UPON WHICH IT INTENDED TO ACT.  E.G.,
ACQUISITION OF C. & O. NORTHERN RY. CO. BY C. & O. RY., 70 I.C.C. 550;
GAINESVILLE MIDLAND REORGANIZATION, 131 I.C.C. 355; CONTROL OF
GREENBRIER, CHEAT & ELK R.R., 131 I.C.C. 525; CHICAGO, M., ST.P. & P.R.
CO. ACQUISITION, 158 I.C.C. 770; ELMIRA & L.O.R. CO. ACQUISITION, 170
I.C.C. 127. 

THE COMMISSION HAS POINTED OUT THAT ITS ACTION IN PASSING ON
APPLICATIONS UNDER EACH OF THE PARAGRAPHS 18 TO 20 INCLUSIVE, OF SEC.
1, OR UNDER SEC. 5(2), OF THE ACT, IS LIMITED TO THE PARTICULAR
PROVISION OF THE ACT ON WHICH THE APPLICATION IS FOUNDED, AND IS NOT TO
BE CONSTRUED AS A DECISION ON ANY OTHER PROVISION.  SEE ACQUISITION OF
LINE BY O.C.S.I. RY., 86 I.C.C. 273, 274; ACQUISITION BY A., T. & S.F.
RY., 138 I.C.C. 787, 789; ACQUISITION BY ST. L.-S.F. RY., 145 I.C.C.
110, 114; CHICAGO, M. & ST. P. REORGANIZATION, 131 I.C.C. 673, 691-92;
NEW YORK CENTRAL R. CO. ASSUMPTION, 158 I.C.C. 317, 320-23; PACIFIC
COAST R. CO. ACQUISITION, 187 I.C.C. 563 AND 189 I.C.C. 79.  CF.
KEESHIN TRANSCON.  FREIGHT LINES, INC. - DEBENTURES, 5 M.C.C. 349,
351.  IN FACT, THE COMMISSION HAS SAID THAT SEC. 20(A)(2) "CONFERS UPON
US POWER TO GRANT OR DENY AUTHORITY TO ISSUE SECURITIES OR TO ASSUME
OBLIGATION OR LIABILITY  ...  ONLY UPON APPLICATION BY THE CARRIER FOR
SUCH AUTHORITY."  NEW YORK CENTRAL R. CO. ASSUMPTION, 158 I.C.C. 317,
322. 

IN THE COMMISSION'S VIEW, AUTHORITY TO CONSOLIDATE INCLUDES THE
AUTHORITY TO ACQUIRE AND OPERATE PROPERTIES OF OTHER ROADS, BUT NEITHER
THAT AUTHORITY NOR THE AUTHORITY TO ISSUE SECURITIES UPON CONSOLIDATION
INCLUDES AUTHORITY TO ASSUME LIABILITIES OF THE CONSTITUENT COMPANIES. 
ROCK ISLAND SYSTEM CONSOLIDATION, 193 I.C.C. 395, 403-04; SANTA FE
TRAIL TRANSP.  CO. - MERGER, 5 M.C.C. 324, 328; CF. ILLINOIS TERMINAL
R. CO. CONSOLIDATION AND SECURITIES, 221 I.C.C. 676.  THE COURT'S
SUGGESTION THAT THIS WAS NOT SO BEFORE THE COMMISSION PROMULGATED ITS
GENERAL PLAN OF CONSOLIDATION UNDER SEC. 5, IS CONTRARY TO THE RULING
IN ACQUISITION & STOCK ISSUE BY P., O. & D.R.R., 105 I.C.C. 189.  IN
THAT CASE, BEFORE THE PROMULGATION OF THE PLAN, THE COMMISSION WAS AT
PAINS TO WARN (P. 193) THAT ITS APPROVAL OF AN ISSUE OF SECURITIES TO
CARRY OUT A CONSOLIDATION UNDER STATE LAW DID NOT INVOLVE ANY DECISION
ON ASSUMPTION OF LIABILITY OF THE OBLIGATIONS OF THE CONSOLIDATED
COMPANY'S CONSTITUENTS.  ASSUMPTION OF OBLIGATION BY L.S. & I.R.R., 86
I.C.C. 640, AND GRAND TRUNK W.R. CO. UNIFICATION AND SECURITIES, 158
I.C.C. 117, 138, 142-43, BOTH DECIDED BEFORE THE PROMULGATION OF THE
PLAN, GRANTED PERMISSION TO ASSUME THE OBLIGATIONS OF THE CONSTITUENTS
AND THUS GIVES FURTHER PROOF THAT THE COMMISSION, WHEN IT INTENDED TO
TAKE ANY POSITION WITH RESPECT TO THE ASSUMPTION OF OBLIGATIONS IN
CONNECTION WITH A CONSOLIDATION, DID SO BY ACTION AFFIRMATIVELY
EXPRESSED RATHER THAN BY SILENCE. 

THE COMMISSION HAS ENTERTAINED APPLICATIONS FOR THE APPROVAL, UNDER
SEC. 1 OF THE ACT, OF THE OPERATION OF ACQUIRED PROPERTIES, OR FOR
APPROVAL OF SECURITY ISSUES UPON CONSOLIDATION, WITHOUT ANY APPLICATION
FOR THE APPROVAL OF THE ASSUMPTION OF THE LIABILITIES INVOLVED.  SEE
ACQUISITION AND STOCK ISSUE BY N.Y., C. & ST. L.R. CO., 79 I.C.C. 581;
PACIFIC COAST R. CO. ACQUISITION, 187 I.C.C. 563; CF. ROCK ISLAND
SYSTEM CONSOLIDATION, 193 I.C.C. 395, 403-04.  AND IN THE CASE OF THIS
APPELLANT, AS OF OTHER ROADS, IT HAS LATER ENTERTAINED AND DISPOSED OF
SEPARATE APPLICATIONS FOR THE APPROVAL OF THE ASSUMPTION OF THE
OBLIGATIONS INVOLVED.  N.Y., C. & ST. L.R. CO. ASSUMPTION OF
OBLIGATION, 217 I.C.C. 598; N.Y., C. & ST. L.R. CO. BONDS AND
ASSUMPTION, 221 I.C.C. 772; N.Y., C. & ST. L.R. CO. ASSUMPTION OF
OBLIGATION AND LIABILITY, 247 I.C.C. 71; ST. LOUIS-S. F. READJUSTMENT,
145 I.C.C. 218; PACIFIC COAST R. CO. SECURITIES, 189 I.C.C. 79;
CINCINNATI UNION TERM.  CO. SECURITIES, 166 I.C.C. 419 AND 499, AND 184
I.C.C. 619; WEST JERSEY & S.R. CO. BONDS, 217 I.C.C. 125; CF.
ASSUMPTION OF OBLIGATION BY N.O., T. & M. RY., 94 I.C.C. 218. 

SUCH ACTION BY THE COMMISSION PLAINLY PRECLUDES ANY INFERENCE THAT,
IN APPROVING AN APPLICATION FOR THE OPERATION OF THE CONSOLIDATED LINES
OR AN ISSUE OF SECURITIES UNDER A CONSOLIDATION, IT WAS DOING MORE THAN
RESPONDING TO THE PETITION PRESENTED TO IT OR THAT IT WAS UNDERTAKING
TO PASS ON THE LEGALITY OR PROPRIETY OF THE ASSUMPTION BY THE
CONSOLIDATED ROAD OF GUARANTEE OBLIGATIONS OF ITS CONSTITUENT
COMPANIES.  WE ARE POINTED TO NOTHING SUGGESTING THAT THE COMMISSION
HAS EVER REGARDED SUCH APPROVALS AS INVOLVING AN UNASKED DETERMINATION
WITH RESPECT TO THE ASSUMPTION BY THE CONSOLIDATED CARRIER OF THE
OBLIGATION OF ITS CONSTITUENT COMPANIES. 

THERE IS THUS NO PLAUSIBLE GROUND FOR SAYING THAT THERE WAS LURKING
IN THE COMMISSION'S DECISION IN 79 I.C.C. 581 SOME IMPLIED RULING AS TO
THE CONSTRUCTION OF SEC. 20(A)(2) AND SOME IMPLIED REFUSAL TO ACT
BECAUSE OF THAT CONSTRUCTION, IN A SITUATION IN WHICH IT WAS NOT ASKED
OR EXPECTED TO ACT AND IN WHICH, FOR REASONS ALREADY STATED, IT WAS
UNDER NO DUTY TO ACT.  IN NONE OF THE CASES CITED IN THE OPINION OF THE
COURT AS HINTING AT A POSSIBLE CONSTRUCTION BY THE COMMISSION OF SEC.
20(A)(2) WAS IT ASKED TO MAKE ANY FINDING OR ORDER WITH RESPECT TO THE
ASSUMPTION BY APPELLANT OF OBLIGATIONS OF ITS CONSTITUENT COMPANIES. 
IN NONE DID IT MAKE OR DECLINE TO MAKE ANY OF THE FINDINGS OR THE ORDER
REQUIRED BY SEC. 20(A)(2) WITH RESPECT TO SUCH OBLIGATIONS.  IN NONE
DID IT EXPRESS ANY OPINION WHETHER OBLIGATIONS ATTACHING TO A
CONSOLIDATED CARRIER ARE WITHIN THE PROHIBITION OF THE STATUTE, OR AS
TO ITS DUTY TO APPROVE OR DISAPPROVE OF THEIR ASSUMPTION. 

IN OPERATION OF LINES AND ISSUE OF CAPITAL STOCK BY THE N.Y., C. &
ST. L.R. CO., 79 I.C.C. 581, THE COMMISSION WAS ASKED TO, AND DID,
SPECIFICALLY APPROVE THE OPERATION BY APPELLANT OF THE CONSOLIDATED
LINE AND THE ISSUANCE OF CERTAIN STOCK BY APPELLANT, PURSUANT TO THE
CONSOLIDATION PLAN, AND NOTHING MORE.  IT MADE NO MENTION OF ANY
ASSUMPTION OF OBLIGATION BY APPELLANT OR OF THE ASSUMPTION PROVISIONS
OF SEC. 20(A)(2).  IT NEITHER TOOK NOR DECLINED TO TAKE ACTION
AFFECTING SUCH ASSUMPTION.  FOR ALL THAT APPEARS, THE COMMISSION, IN
ITS EXAMINATION OF THE CAPITAL STRUCTURE AND THE BALANCE SHEET OF
APPELLANT, MAY HAVE DISREGARDED THE GUARANTEE OBLIGATION AS ONE NOT
AFFECTING THE CONSOLIDATED COMPANY BECAUSE ITS ASSUMPTION HAD NOT BEEN
APPROVED BY THE COMMISSION. 

IT CONSTRUED THE CONSOLIDATION PROVISIONS IN SEC. 5 OF THE ACT AS
PERMITTING CARRIERS TO CONSOLIDATE UNDER STATE LAW WITHOUT FIRST
SECURING THE COMMISSION'S AUTHORIZATION FOR THE CONSOLIDATION ITSELF. 
WHETHER OR NOT THIS WAS THE NECESSARY INTERPRETATION OF THE
CONSOLIDATION PROVISIONS, CF. SNYDER V. NEW YORK, C. & ST. L.R. CO.,
278 U.S. 578, NOTHING IN THE REPORT OF THE COMMISSION'S DECISION
SUGGESTS THAT IF IT WAS ESSENTIAL, IN ORDER TO CARRY OUT THE
CONSOLIDATION UNDER STATE LAW, THAT OBLIGATIONS BE "ASSUMED," THEN THE
ASSUMPTION COULD BE ACCOMPLISHED WITHOUT COMPLIANCE WITH SEC.
20(A)(2).  ITS DECISION IS IN FACT INCONSISTENT WITH ANY SUCH THEORY,
AND AFFORDS AFFIRMATIVE EVIDENCE THAT THE COMMISSION THOUGHT SEC.
20(A)(2) WAS OPERATIVE NOTWITHSTANDING THE NARROW INTERPRETATION WHICH
IT GAVE TO SEC. 5. 

THE COMMISSION AUTHORIZED APPELLANT TO ISSUE, UNDER SEC. 20(A)(2),
CERTAIN PREFERRED AND COMMON STOCK, TO BE EXCHANGED FOR THE STOCK OF
ITS FIVE CONSTITUENT COMPANIES IN CARRYING OUT THE CONSOLIDATION.  IF
CONSOLIDATIONS UNDER STATE LAW COULD, IN THE COMMISSION'S VIEW, BE
EFFECTED AT THAT TIME WHOLLY WITHOUT REGARD TO SEC. 20(A)(2), THEN THE
GRANTING OF AUTHORITY TO ISSUE THE STOCK WOULD HAVE BEEN SUPERFLUOUS. 
THAT THE COMMISSION DEEMED SUCH AUTHORITY NECESSARY IS PERSUASIVE THAT
IT REGARDED SEC. 20(A)(2) AS APPLICABLE TO ALL ISSUES OF SECURITIES, OR
ASSUMPTIONS OF OBLIGATIONS, WHICH OCCURRED IN CONNECTION WITH A
CONSOLIDATION.  FREEDOM TO CONSOLIDATE, IN THE COMMISSION'S VIEW,
PLAINLY DID NOT INCLUDE FREEDOM TO MAKE ADJUSTMENTS IN CAPITAL
STRUCTURE WITHOUT THE AUTHORIZATION REQUIRED BY SEC. 20(A)(2).  HENCE,
THE ONLY REAL QUESTION IS WHETHER AN OBLIGATION ASSUMED OR ATTACHING
MERELY BY OPERATION OF LAW IS AN "ASSUMPTION" WITHIN THE MEANING OF
SEC. 20(A)(2) - A QUESTION WHICH, AS WILL PRESENTLY APPEAR, THE
COMMISSION HAS CONSISTENTLY ANSWERED IN THE AFFIRMATIVE, WHENEVER IT
HAS BEEN CALLED UPON TO GIVE AN ANSWER.    SUBSEQUENT PROCEEDINGS
BEFORE THE COMMISSION AFFECTING APPELLANT, IN THE CASES ON WHICH THE
COURT RELIES, PRESENTED NO QUESTION OF ITS LIABILITY UPON THE GUARANTEE
OBLIGATIONS OF ITS CONSTITUENT COMPANIES, AND ARE EQUALLY BARREN OF ANY
INDICATION THAT THE COMMISSION CONSIDERED THE MEANING AND APPLICATION
OF THE ASSUMPTION PROVISIONS OF SEC. 20(A)(2) OR THAT IT HAD ANY
OCCASION TO DO SO.  IN N.Y., C. & ST. L.R.R. BONDS, 82 I.C.C. 365, AND
IN PLEDGE OF BONDS BY N.Y., C. & ST. L.R.R., 86 I.C.C. 465, NEXT CITED
BY THE COURT AS SUSTAINING ITS DECISION, THE QUESTIONS PRESENTED TO THE
COMMISSION HAD NOT EVEN A REMOTE RELATION TO ANY ASSUMPTION BY
APPELLANT OF GUARANTEE OBLIGATIONS, RESULTING FROM THE CONSOLIDATION,
WHICH THE COMMISSION HAD NOT BY ITS ORDER APPROVED.  IN THE ONE CASE
THE APPLICATION WAS FOR AUTHORITY TO MAKE A NEW BOND ISSUE; IN THE
OTHER FOR PERMISSION TO PLEDGE SOME OF ITS OWN ASSETS TO SECURE A NEW
NOTE ISSUE.  PASSING REFERENCES BY THE COMMISSION, IN RECOUNTING THE
HISTORY OF THE CONSOLIDATION, TO THE FACT THAT APPELLANT HAD ACQUIRED
THE PROPERTIES OF CONSTITUENT COMPANIES "SUBJECT TO ALL THEIR DEBTS,
OBLIGATIONS AND LIABILITIES," AND THAT IT "HAS ASSUMED ALL OBLIGATIONS"
OF A DIFFERENT CONSTITUENT COMPANY FROM THAT HERE INVOLVED, CAN HARDLY
BE ACCEPTED AS EVIDENCE OF AN UNASKED ADMINISTRATIVE CONSTRUCTION OF A
PROVISION OF A STATUTE WHICH IT WAS NOT ADMINISTERING AND WITH RESPECT
TO WHICH IT EXPRESSED NO OPINION. 

THE COURT GAINS NO SUPPORT FOR ITS CONCLUSION FROM THE SUPPOSED
RECOGNITION BY THE COMMISSION, IN THE AKRON CASE, THAT THE "RESULTING
LIABILITY" FROM APPELLANT'S CONSOLIDATION HAD BEEN "APPARENTLY
ADMITTED."  AKRON, C. & Y. RY. CO. & NORTHERN O. RY. CO.
REORGANIZATION, 228 I.C.C. 645, 647.  THE BANKRUPTCY REORGANIZATION,
WHOSE APPROVAL BY THE COMMISSION WAS THERE SOUGHT, WAS THAT OF THE
NORTHERN OHIO RAILWAY, THE GUARANTEE OF WHOSE BONDS IS PRESENTLY
INVOLVED.  WHAT HAD "APPARENTLY" BEEN "ADMITTED" BY THE PROPOSED
REORGANIZATION WAS THAT, SO FAR AS APPELLANT SHOULD PERFORM OR BE
COMPELLED TO PERFORM THE GUARANTEE, IT WOULD BECOME A CREDITOR OF THE
NEW COMPANY, ENTITLED TO PARTICIPATE IN THE NEW SECURITIES TO BE ISSUED
TO CREDITORS UNDER THE REORGANIZATION.  THE ONLY ACTION TAKEN BY THE
COMMISSION WITH RESPECT TO THE OBLIGATION WAS TO APPROVE (P. 673) THE
PROVISION OF THE PLAN, WHICH RESERVED NEW SECURITIES OF THE REORGANIZED
COMPANY FOR THE SATISFACTION OF APPELLANT'S CLAIM "PENDING
PERFORMANCE," IF ANY, OF THE GUARANTEE, BY APPELLANT, AND TO ORDER (P.
684) THE REORGANIZED COMPANY TO ISSUE TO APPELLANT ITS PROPORTION OF
THE NEW SECURITIES UPON "APPROPRIATE PROOF" BY APPELLANT "OF LOSS
SUSTAINED IN THE PERFORMANCE OF ITS CONTRACT OF GUARANTEE."  THE
COMMISSION THUS HAD NO OCCASION TO DETERMINE THE QUESTION WHICH
APPELLANT ASKS TO HAVE DETERMINED HERE, AND POINTEDLY LEFT IT
UNDECIDED.  OBVIOUSLY, THE APPROVED PLAN GAVE APPELLANT A POWERFUL
INCENTIVE TO RESIST PERFORMANCE OF THE GUARANTEE AND MANIFESTLY DID NOT
PURPORT TO FORECLOSE APPELLANT FROM SECURING THE ADJUDICATION OF THE
LIABILITY WHICH IT SEEKS HERE. 

NOT ONLY DO THESE CASES FAIL TO DISCLOSE ANY SELF-DENYING
CONSTRUCTION OF SEC. 20(A)(2) BY THE COMMISSION, BUT IN OTHERS, WHERE
THE COMMISSION HAS BEEN CALLED ON TO CONSIDER THE QUESTION, IT HAS
TAKEN THE POSITION THAT THE WORD "ASSUMPTION" IN SEC. 20(A)(2) INCLUDES
AN OBLIGATION PLACED UPON THE CARRIER MERELY BY OPERATION OF THE STATE
LAW UNDER WHICH IT HAD ACQUIRED PROPERTY. 

THREE TIMES SINCE ITS DECISION IN 79 I.C.C., THE COMMISSION HAS
GRANTED THE APPLICATION OF APPELLANT TO BE PERMITTED TO EXTEND AND ALSO
TO ASSUME OBLIGATIONS OF ITS CONSTITUENT COMPANIES.  N.Y., C. & ST.
L.R. CO. ASSUMPTION OF OBLIGATION, 217 I.C.C. 598; N.Y., C. & ST. L.R.
CO. BONDS AND ASSUMPTION, 221 I.C.C. 772; N.Y., C. & ST. L.R. CO.
ASSUMPTION OF OBLIGATION AND LIABILITY, 247 I.C.C. 71.  IN TWO OF THESE
CASES, THE COMMISSION AUTHORIZED APPELLANT TO ASSUME OBLIGATIONS OF THE
LAKE ERIE & WESTERN - THE SAME CONSTITUENT COMPANY WHOSE OBLIGATION IS
NOW SAID TO HAVE BEEN ASSUMED WITHOUT THE NECESSITY OF THE COMMISSION'S
AUTHORIZATION.  IF APPELLANT WAS ALREADY PERSONALLY LIABLE ON THE
OBLIGATIONS, PERMISSION TO ASSUME THEM WAS UNNECESSARY.  AND SINCE THE
COMMISSION DOES NOT ENTERTAIN APPLICATIONS FOR AUTHORITY TO ASSUME
OBLIGATIONS WHERE IT IS OF THE OPINION THAT THE OBLIGATION IS NOT ONE
TO WHICH SEC. 20(A)(2) APPLIES, SOUTHERN PACIFIC CO. ASSUMPTION OF
OBLIGATION, 189 I.C.C. 212, 213; BONDS OF A. & M. RAILWAY BRIDGE &
TERM.  CO., 94 I.C.C. 79, 81; MISSOURI-K.-T. R. CO. ASSUMPTION OF
OBLIGATION, 212 I.C.C. 217; PITTSBURGH & SHAWMUT R. CO. SECURITIES, 166
I.C.C. 503, 505, ITS ACTION IN AUTHORIZING THE ASSUMPTIONS, IN ADDITION
TO THE EXTENSIONS, IS INCONSISTENT WITH ANY INFERENCE ON OUR PART THAT
IT HAD PREVIOUSLY RULED THAT THE OBLIGATIONS ASSUMED WERE NOT REQUIRED
TO COMPLY WITH SEC. 20(A)(2). 

ON THE CONTRARY, THE COMMISSION APPLIED THAT SECTION TO OBLIGATIONS
LIKE THE PRESENT SOON AFTER ENACTMENT OF THE TRANSPORTATION ACT OF
1920.  IN ASSUMPTION OF OBLIGATION BY HUDSON RIVER CONNECTING R.R., 72
I.C.C. 595, DECIDED NINE MONTHS BEFORE ITS DECISION IN 79 I.C.C., THE
COMMISSION TOOK JURISDICTION OF AN APPLICATION FOR APPROVAL OF AN
ASSUMPTION OF OBLIGATION RESULTING BY OPERATION OF NEW YORK LAW FROM A
CARRIER'S ACQUISITION OF PROPERTY.  IN GRANTING THE APPLICATION AND IN
AUTHORIZING THE CARRIER TO "ASSUME" THE ATTACHED OBLIGATION THE
COMMISSION STATED, PAGE 596: 

"WHILE THE APPLICANT DOES NOT PROPOSE TO MAKE ANY INDORSEMENT ON THE
BONDS, OR EXECUTE ANY AGREEMENT IN RESPECT OF THE PAYMENT OF THEM, IT
APPEARS THAT, UNDER THE LAWS OF NEW YORK, THE ACCEPTANCE OF A DEED
CONVEYING LAND SUBJECT TO A MORTGAGE INDEBTEDNESS, WHICH THE GRANTEE
AGREES TO ASSUME, HAS THE EFFECT OF MAKING THE LAND THE PRIMARY FUND
FOR THE PAYMENT OF THE MORTGAGE INDEBTEDNESS, SO THAT THE GRANTEE
BECOMES THE PRINCIPAL DEBTOR AND THE GRANTOR A SURETY." 

THE COMMISSION MADE THE FINDINGS PRESCRIBED BY SEC. 20(A)(2) AND
ORDERED THAT THE APPLICANT BE "AUTHORIZED TO ASSUME OBLIGATION AND
LIABILITY" IN RESPECT OF THE MORTGAGED BONDS, "SAID ASSUMPTION OF
OBLIGATION AND LIABILITY  ...  TO BE ACCOMPLISHED BY THE ACCEPTANCE BY
THE APPLICANT OF A DEED OF SAID LANDS." 

MORE RECENTLY, IN PUBLIC SERVICE COORDINATED TRANSPORT - ASSUMPTION
OF OBLIGATION, 15 M.C.C. 406, A MOTOR CARRIER CASE UNDER SEC. 214 OF
THE INTERSTATE COMMERCE ACT, WHICH INCORPORATES BY REFERENCE SEC.
20(A)(2), THE COMMISSION REAFFIRMED ITS EARLIER CONSTRUCTION OF SEC.
20(A)(2) AS APPLYING TO OBLIGATIONS LIKE THE PRESENT, SAYING (P. 408): 

"PRIOR TO CONSUMMATION OF THE MERGER, APPLICANT'S LIABILITY IN
RESPECT OF THE BONDS OF SAID COMPANIES WAS OF A CONTINGENT NATURE. 
UNDER THE STATUTES OF NEW JERSEY ALL DEBTS AND LIABILITIES OF MERGED OR
CONSOLIDATED CORPORATIONS SHALL THENCEFORTH ATTACH TO THE CONSOLIDATED
CORPORATION AND MAY BE ENFORCED AGAINST IT TO THE SAME EXTENT AS IF
SAID DEBTS AND LIABILITIES HAD BEEN INCURRED OR CONTRACTED BY IT.
THUS, THROUGH COMPLETION OF SAID MERGER, APPLICANT HAS, BY OPERATION OF
LAW, BECOME THE PRINCIPAL OBLIGOR IN RESPECT OF THESE BONDS, AND, AS
SUCH, HAS OBLIGATIONS AND LIABILITIES IN RESPECT THEREOF WHICH DIFFER
FROM THE CONTINGENT LIABILITY PREVIOUSLY EXISTENT.  IN OUR OPINION
ASSUMPTION OF SUCH OBLIGATIONS AND LIABILITIES AS SUCCESSOR IN TITLE IS
A MATTER OVER WHICH WE HAVE JURISDICTION."  FN2 

WHILE COURTS ARE NOT NECESSARILY BOUND BY THE COMMISSION'S
CONSTRUCTION OF THE INTERSTATE COMMERCE ACT, MITCHELL V. UNITED STATES,
313 U.S. 80; UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 282 U.S.
311, THEY RIGHTLY PAY DEFERENCE TO THE COMMISSION'S CONSIDERED
CONSTRUCTION OF IT, ESPECIALLY WHEN IT IS OF LONG STANDING AND HAS
NEVER BEEN DEPARTED FROM.  BUT IT IS NOVEL DOCTRINE THAT A PROVISION OF
AN ACT OF CONGRESS MAY BE NULLIFIED BY A CONSTRUCTION OF THE INTERSTATE
COMMERCE COMMISSION WHICH CAN BE INFERRED ONLY FROM THE FACT THAT THE
COMMISSION IGNORED THE PROVISION IN A PROCEEDING IN WHICH, BY ITS
SETTLED PRACTICE, IT WAS NOT CALLED UPON TO CONSTRUE OR APPLY IT.
CERTAINLY, THE COMMISSION DOES NOT APPEAR EVER TO HAVE ACTED UPON ANY
SUCH VIEW, NOR HAS IT COME BEFORE US TO ADVOCATE IT.  IT SEEMS PLAIN
THAT THE RULINGS OF THE COMMISSION THAT SEC. 20(A)(2) IS APPLICABLE TO
THOSE OBLIGATIONS WHICH STATE LAW ATTACHES TO THE CARRIER IN
CONSEQUENCE OF ITS PARTICIPATION IN A CONSOLIDATION, AS WELL AS TO
THOSE WHICH ATTACH TO IT BY REASON OF ITS EXPRESSED PROMISE, CARRY OUT
THE PURPOSES OF THE STATUTE AND ARE CONSISTENT WITH ITS LANGUAGE. 
OF THE COUNTRY, THROUGH CONSOLIDATION OR OTHERWISE, PERSONAL LIABILITY
FOR THE OBLIGATIONS OF OTHER ROADS, SUCH AS HAD OCCURRED IN CERTAIN
WELL KNOWN CONSOLIDATIONS NOTORIOUS FOR THEIR DISREGARD OF THE
INTERESTS OF SECURITY HOLDERS AND THE PUBLIC.  SEE 58 CONG. REC. 8317
18.  AS THE EFFECTIVE MEANS OF PREVENTION IT PRESCRIBED THAT ALL SUCH
OBLIGATIONS SHOULD BE VOID, UNLESS THE COMMISSION ORDERS THEIR APPROVAL
AS COMPATIBLE WITH THE PUBLIC INTEREST. 

BUT EVEN IF WE ASSUME THAT THE SILENCE OF THE COMMISSION IN 79 I.C.C.
CAN BE TAKEN TO INTIMATE A VIEW OF THE MEANING OF SEC. 20(A)(2), WITH
RESPECT TO WHICH IT TOOK NO ACTION AND MADE NO ORDER, IT SEEMS STILL
MORE NOVEL TO SAY THAT SUCH AN INFERENCE MUST CONTROL OUR DECISION
HERE, IN THE FACE OF ITS EXPLICIT CONSTRUCTION OF THE STATUTE IN OTHER
CASES AS APPLICABLE TO SITUATIONS LIKE THE PRESENT.  EVEN SPORADIC AND
INCONSISTENT ADMINISTRATIVE DECISIONS, WHERE THE PARTIES HAVE RELIED
UPON THEM, MAY SOMETIMES BOTH BE FOLLOWED BY COURTS WHEN APPLIED TO
THOSE PARTIES.  BUT THE UNARTICULATED INTIMATIONS OF OPINION OF AN
ADMINISTRATIVE BODY, UNACTED UPON, ARE TOO INCONCLUSIVE TO CONTROL
JUDICIAL DECISION.  COURTS ARE NOT LIKE WEATHERCOCKS, CHANGING WITH
EVERY ADMINISTRATIVE WIND THAT BLOWS.  THEY CANNOT ON THE SAME DAY
RIGHTLY DECIDE THAT THE SAME STATUTE MEANS DIFFERENT THINGS IN
DIFFERENT CASES, MERELY BECAUSE THE COMMISSION MAY ON DIFFERENT DAYS
HAVE HAD SHIFTING IMPRESSIONS WHICH IT HAS NOT THOUGHT SUFFICIENTLY
IMPORTANT TO EXPRESS IN ANY RULING, OPINION, DECISION OR ORDER. 

UNITED STATES V. CHICAGO NORTH SHORE R. CO., 288 U.S. 1, UPON WHICH
THE COURT RELIES, HAS NO SIGNIFICANCE HERE.  IT IS ONE THING TO ACCEPT
JUDICIALLY THE COMMISSION'S DECISION THAT A PARTICULAR CARRIER IS AN
"INTERURBAN ELECTRIC RAILWAY," A DETERMINATION UNQUESTIONABLY WITHIN
ITS POWER AND PECULIARLY WITHIN ITS ADMINISTRATIVE COMPETENCE.  IT IS
QUITE ANOTHER TO BIND THE COURTS BY A CONSTRUCTION OF THE STATUTE WHICH
THE COMMISSION HAS NEVER VOICED, BUT WHICH, ON THE CONTRARY, IT HAS
CONSISTENTLY DENIED, NAMELY, THAT OBLIGATIONS MAY BE ASSUMED WITHOUT
CONSCIOUS AND EXPRESS PERMISSION OF THE COMMISSION AND IN DEFIANCE OF
THE DECLARED WILL OF CONGRESS. 

IT IS IMPOSSIBLE TO BELIEVE THAT THE ALL-INCLUSIVE PROVISIONS OF SEC.
20(A)(2), PASSED IN RESPONSE TO A GENERAL AND LONG-FELT NEED FOR THE
FEDERAL REGULATION OF RAILROAD CAPITALIZATION, WERE INTENDED TO EXCLUDE
ASSUMPTIONS OF OBLIGATIONS WHICH ATTACH BY VIRTUE OF STATE LAW.  THE
STATUTE MAKES SEC. 20(A)(2) SUBJECT ONLY TO ONE EXCEPTION - SHORT-TERM
NOTES MATURING IN NOT MORE THAN TWO YEARS, SEC. 20(A)(9) - AND EVEN IN
THAT INSTANCE THE CARRIER IS REQUIRED TO FILE WITH THE COMMISSION A
CERTIFICATE OF NOTIFICATION.  NO OTHER EXCEPTION WAS PROVIDED, AND IT
IS APPARENT THAT NONE WAS INTENDED.  FN3 

WE ARE NOT CONCERNED HERE WITH DOUBTS WHETHER APPELLANT IS VALIDLY
ORGANIZED UNDER NEW YORK LAW.  NO SUCH ISSUE IS PRESENTED BY THE
RECORD.  THE ONLY QUESTION BEFORE US IS WHETHER PERSONAL LIABILITY CAN
BE ASSUMED BY APPELLANT WITHOUT COMPLYING WITH THE STATUTE, WHICH MAKES
SUCH AN ASSUMPTION VOID "EVEN THOUGH PERMITTED BY THE AUTHORITY
CREATING THE CARRIER CORPORATION" "UNLESS AND UNTIL, AND THEN ONLY TO
THE EXTENT THAT" THE COMMISSION HAS APPROVED THE ASSUMPTION AFTER
MAKING THE PRESCRIBED FINDINGS. 

THE STATUTE DOES NOT DEPRIVE THE HOLDERS OF OBLIGATIONS OF THE
CONSTITUENT COMPANIES OF ANY RIGHTS AGAINST THEM OR THEIR PROPERTY.  IT
ONLY PREVENTS THE ACQUISITION BY SUCH HOLDERS, CONTRARY TO THE PUBLIC
INTEREST, OF NEW RIGHTS AGAINST THE CONSOLIDATED CARRIER WITHOUT THE
CONSENT OF THE COMMISSION, AND BY SEC. 20(A)(11) THE STATUTE GIVES A
REMEDY TO THOSE WHO, LIKE APPELLEE, BECOME INNOCENT PURCHASERS OF SUCH
SECURITIES, AFTER CONSOLIDATION, FOR THE LOSS OF SUCH RIGHTS THROUGH
THE OPERATION OF SEC. 20(A)(2).  THE APPLICATION OF THE STATUTE IN THIS
CASE NO MORE INVOLVES ENRICHING STOCKHOLDER EQUITIES THAN IN ANY
OTHER.  THE QUESTION IN EVERY CASE IS WHETHER THE PUBLIC, AND RAILROAD
SECURITY HOLDERS, SHALL BE BURDENED, THROUGH REPEATED REORGANIZATIONS
OF RAILROADS, WITH EXCESSIVE INDEBTEDNESS WHICH IT WAS THE PURPOSE OF
THE STATUTE TO PROHIBIT.  IT IS OBVIOUS THAT THE STATUTE WOULD FAIL OF
ITS PROCLAIMED PURPOSE UNLESS, AS THE COMMISSION HAS RULED, ITS
PROHIBITIONS EXTEND TO THOSE OBLIGATIONS WHICH THE CONSOLIDATED CARRIER
ASSUMES BY VIRTUE OF ITS ENTERING INTO A CONSOLIDATION UNDER STATE LAW,
AS WELL AS THOSE WHICH IT ASSUMES BY ITS EXPRESSED PROMISE.  THE WORDS
OF THE STATUTE NEITHER COMPEL NOR PERSUADE TO THE DECISION NOW GIVEN,
WHICH SEEMS TO REST ON NOTHING MORE SUBSTANTIAL THAN A FAR-FETCHED
SURMISE.  IT DEFEATS THE CONGRESSIONAL PURPOSE AND CONFLICTS WITH THE
LEGISLATIVE HISTORY AND ADMINISTRATIVE CONSTRUCTION OF THE STATUTE. 
FN1  49 U.S.C. SEC. 20(A)(11), AFTER PROVIDING THAT ASSUMPTIONS OF
OBLIGATIONS NOT APPROVED BY THE COMMISSION ARE VOID, DECLARES: 

"IF  ...  ANY SECURITY IN RESPECT TO WHICH THE ASSUMPTION OF
OBLIGATION OR LIABILITY IS SO MADE VOID, IS ACQUIRED BY ANY PERSON FOR
VALUE AND IN GOOD FAITH AND WITHOUT NOTICE THAT THE  ... ASSUMPTION IS
VOID, SUCH PERSON MAY IN A SUIT OR ACTION IN ANY COURT OF COMPETENT
JURISDICTION, HOLD JOINTLY AND SEVERALLY LIABLE FOR THE FULL AMOUNT OF
THE DAMAGE SUSTAINED BY HIM IN RESPECT THEREOF, THE CARRIER WHICH  ...
ASSUMED THE OBLIGATION OR LIABILITY SO MADE VOID, AND ITS DIRECTORS,
OFFICERS, ATTORNEYS, AND OTHER AGENTS, WHO PARTICIPATED IN ANY WAY  ...
IN THE AUTHORIZING OF THE ASSUMPTION OF THE OBLIGATION OR LIABILITY SO
MADE VOID." 

IT APPEARS FROM THE RECORD, IN AN AFFIDAVIT UPON WHICH SUMMARY
JUDGMENT WAS GRANTED, THAT IN 1936, AFTER THE CONSOLIDATION, APPELLEE
PURCHASED THE BONDS FROM A BROKER FOR VALUE "WITHOUT NOTICE OF ANY
DEFENSE THERETO OR TO THE GUARANTEE THEREOF." 

FN2  SEE ALSO ELMIRA & L.O.R. CO. ACQUISITION, 170 I.C.C. 127, WHERE
THE COMMISSION APPROVED AN "ASSUMPTION" OF LIABILITY WHICH WAS
APPARENTLY TO ATTACH (SEE P. 128) SOLELY BY OPERATION OF THE NEW YORK
STOCK CORPORATION LAWS.  CF. ASSUMPTION OF OBLIGATION BY L.S. & I.R.R.,
86 I.C.C. 640, WHERE IN AUTHORIZING AN "ASSUMPTION" THE COMMISSION
STATED:  "UNDER THE AGREEMENT AND THE LAWS OF MICHIGAN THE DEBTS,
LIABILITIES, AND DUTIES OF THE LAST TWO COMPANIES NAMED ATTACH TO THE
APPLICANT AND ARE ENFORCEABLE AGAINST IT TO THE SAME EXTENT AND IN THE
SAME MANNER AS IF ORIGINALLY INCURRED BY IT.  THE APPLICANT ACCORDINGLY
SEEKS AUTHORITY TO ASSUME OBLIGATION AND LIABILITY IN RESPECT OF THE
SECURITIES OF THESE COMPANIES."  CF. ALSO UNION R. CO. ASSUMPTION OF
OBLIGATION AND LIABILITY, 217 I.C.C. 635, WHERE, IN AUTHORIZING AN
ASSUMPTION THE COMMISSION STATED:  "PURSUANT TO THE TERMS OF THE JOINT
AGREEMENT OF MERGER DATED OCTOBER 1, 1936, AND THE PROVISIONS OF THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, THE APPLICANT WILL ASSUME ALL
THE DEBTS AND OBLIGATIONS OF THE" CONSTITUENT CORPORATIONS. 

FN3  EXAMINATION OF THE HISTORICAL BACKGROUND OF SEC. 20(A) CAN LEAVE
NO GENUINE DOUBT THAT THE FINANCIAL PROVISIONS OF SEC. 20(A)(2) WERE
MEANT TO BE ALL-INCLUSIVE.  ABUSES IN RAILROAD FINANCING HAD BEEN A
CONTINUOUS SUBJECT OF PUBLIC CONCERN.  SEE THE REPORT OF THE WINDOM
COMMITTEE IN 1874, S. REP. NO. 307, 43RD CONG., 1ST SESS., VOL. I, PP.
71-76; THE REPORT OF THE CULLOM COMMITTEE IN 1886, S. REP. NO. 46, 49TH
CONG., 1ST SESS., PART I, PP. 51-52.  IN 1907 THE INTERSTATE COMMERCE
COMMISSION, REPORTING UPON ITS INVESTIGATION OF THE UNION PACIFIC AND
THE CHICAGO & ALTON RAILROADS, RECOMMENDED FEDERAL REGULATION OF
SECURITY ISSUES.  IN RE CONSOLIDATIONS AND COMBINATIONS OF CARRIERS, 12
I.C.C. 277; AND SEE ALSO THE COMMISSION'S ANNUAL REPORT FOR 1907, P.
24.  IN 1910 PRESIDENT TAFT URGED UPON CONGRESS FEDERAL REGULATION OF
RAILROAD SECURITIES, 45 CONG. REC. 380, BUT THE SENATE'S OPPOSITION
PREVENTED THE PROPOSAL FROM BEING INCLUDED IN THE MANN-ELKINS ACT.  IN
1913 THE COMMISSION CONCLUDED ITS NEW ENGLAND INVESTIGATION, 27 I.C.C.
560, 616, WITH THE RECOMMENDATION THAT "NO INTERSTATE RAILROAD SHOULD
BE PERMITTED TO LEASE OR PURCHASE ANY OTHER RAILROAD, NOR TO ACQUIRE
THE STOCKS OR SECURITIES OF ANY OTHER RAILROAD, NOR TO GUARANTEE THE
SAME, DIRECTLY OR INDIRECTLY, WITHOUT THE APPROVAL OF THE FEDERAL
GOVERNMENT."  SENATE OPPOSITION AGAIN PROVED TOO STRONG IN 1914, AS
WELL AS IN 1916, BUT BY THE END OF THE WAR OPPOSITION TO THE REGULATION
OF RAILROAD CAPITALIZATION PRACTICALLY DISAPPEARED.  SEE LOCKLIN,
REGULATION OF SECURITY ISSUES BY THE INTERSTATE COMMERCE COMMISSION,
PP. 12-22; SHARFMAN, THE INTERSTATE COMMERCE COMMISSION, VOL. I, PP. 86
94, 189-93; AND THE COMMISSION'S ANNUAL REPORT FOR 1919, PP. 4-5. 

LONG CONSIDERED AND AT LAST VIRTUALLY UNOPPOSED, DESIGNED TO VEST IN
THE COMMISSION "EXCLUSIVE AND PLENARY" JURISDICTION, SEC. 20(A)(7),
OVER CHANGES IN THE CAPITAL STRUCTURES OF THE RAILROADS.  ITS
ENACTMENT, SEE SHARFMAN, OP. CIT., SUPRA, VOL. I, P. 190, "WAS NOT ONLY
A FULFILMENT OF THE COMMISSION'S REPEATED RECOMMENDATIONS, BUT GREW OUT
OF A PRACTICAL UNANIMITY OF OPINION AMONG THE NUMEROUS AND DIVERSE
INTERESTS THAT SOUGHT TO INFLUENCE THE CHARACTER OF THE NEW
LEGISLATION.  WHILE THIS EXTENSION OF THE COMMISSION'S AUTHORITY WAS
DESIGNED, INDIRECTLY, TO PROTECT THE INVESTING PUBLIC AGAINST THE
DISSIPATION OF RAILROAD RESOURCES THROUGH FAULTY OR DISHONEST
FINANCING, ITS DOMINANT PURPOSE WAS TO MAINTAIN A SOUND STRUCTURE FOR
THE REHABILITATION AND SUPPORT OF RAILROAD CREDIT, AND FOR THE
CONSEQUENT DEVELOPMENT OF THE TRANSPORTATION SYSTEM.  IT AIMED TO
RENDER IMPOSSIBLE THE RECURRENCE OF THE VARIOUS FINANCIAL SCANDALS,
WITH THEIR DESTRUCTION OF CONFIDENCE IN RAILROAD INVESTMENT, WHICH HAD
BECOME NOTORIOUS, AND TO PREVENT THE SUBORDINATION OF THE CARRIERS'
STAKE AS TRANSPORTATION AGENCIES TO THE FINANCIAL ADVANTAGE OF ALIEN
INTERESTS." 

MR. JUSTICE REED, MR. JUSTICE FRANKFURTER AND MR. JUSTICE BYRNES JOIN
IN THIS OPINION. 
..END :






















EDWARDS V. CALIFORNIA, 314 U.S. 160 


NO. 17.  ARGUED APRIL 28, 29, 1941.  REARGUED OCTOBER 21, 1941.  -
DECIDED NOVEMBER 24, 1941.  - REVERSED. 


1.  TRANSPORTATION OF PERSONS FROM ONE STATE INTO ANOTHER IS
INTERSTATE COMMERCE.  P. 172. 

2.  A STATUTE OF CALIFORNIA MAKING IT A MISDEMEANOR FOR ANYONE
KNOWINGLY TO BRING OR ASSIST IN BRINGING INTO THE STATE A NONRESIDENT
"INDIGENT PERSON," HELD INVALID AS AN UNCONSTITUTIONAL BURDEN ON
INTERSTATE COMMERCE.  P. 174. 

FOR THE PURPOSES OF THIS CASE IT IS ASSUMED THAT THE TERM "INDIGENT
PERSON," THOUGH NOT CONFINED TO THE PHYSICALLY OR MENTALLY
INCAPACITATED, INCLUDES ONLY PERSONS WHO ARE PRESENTLY DESTITUTE OF
PROPERTY AND WITHOUT RESOURCES TO OBTAIN THE NECESSITIES OF LIFE, AND
WHO HAVE NO RELATIVES OR FRIENDS ABLE AND WILLING TO SUPPORT THEM.  P.
172. 

HOW FAR THE REGULATORY POWER OF CONGRESS EXTENDS OVER SUCH
TRANSPORTATION, AND WHETHER THE ATTEMPTED STATE REGULATION IS ALSO
PROHIBITED BY OTHER PROVISIONS OF THE CONSTITUTION, ARE QUESTIONS NOT
DECIDED IN THIS CASE AND UPON WHICH THE MAJORITY OF THE COURT EXPRESSES
NO OPINION.  PP. 176, 177. 

3.  REMARKS IN NEW YORK V. MILN, 11 PET. 102, AND OTHER CASES,
CONCERNING THE POWER OF A STATE TO EXCLUDE "PAUPERS" ARE CONSIDERED AND
THE MEANING OF THAT TERM DISCUSSED.  P. 176. 

EDWARDS V. CALIFORNIA, 314 U.S. 160 

APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF
YUBA. 

APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT OF CALIFORNIA WHICH
AFFIRMED THE CONVICTION OF EDWARDS UNDER A CALIFORNIA STATUTE DECLARING
IT TO BE A MISDEMEANOR FOR ANY PERSON TO BRING, OR ASSIST IN BRINGING,
INTO THE STATE ANY NONRESIDENT OF THE STATE, KNOWING HIM TO BE AN
INDIGENT PERSON.  THE COURT BELOW WAS THE HIGHEST COURT TO WHICH AN
APPEAL COULD BE TAKEN UNDER THE LAWS OF CALIFORNIA.  THE CASE WAS
ARGUED HERE, AND REARGUMENT WAS ORDERED, AT THE 1940 TERM, 313 U.S.
545. 

THE TRANSIENT UNEMPLOYED COMPRISE MOST OF THE NON-RESIDENTS WHO COME
INTO CALIFORNIA.  THE ACT OF BRINGING OR ASSISTING IN BRINGING ALMOST
ANY OF THESE PEOPLE INTO THE STATE HAS BEEN MADE A CRIME, FOR IT IS
CLEAR THAT PRACTICALLY ALL MIGRATORY-CASUAL LABOR AND TRANSIENT
UNEMPLOYED FALL WITHIN THE CLASSIFICATION OF "INDIGENT PERSONS." 

THE PASSAGE OF PERSONS FROM STATE TO STATE CONSTITUTES INTERSTATE
COMMERCE, GIBBONS V. OGDEN, 9 WHEAT.  1; HOKE V. UNITED STATES, 227
U.S. 308; GOOCH V. UNITED STATES, 297 U.S. 124; UNITED STATES V.
MILLER, 17 F.SUPP.  65; COVINGTON & CINCINNATI BRIDGE CO. V. KENTUCKY,
154 U.S. 204, WHETHER THEY BE MOVED BY COMMON CARRIER OR OTHERWISE. 
CAMINETTI V. UNITED STATES, 242 U.S. 470; UNITED STATES V. BURCH, 226
F. 974. 

THE EFFECT OF THE STATUTE IS TO BAR THE MOVEMENT OF INDIGENT PERSONS
INTO CALIFORNIA, AND TO COMPEL THEIR REMOVAL THEREFROM AT THE PLEASURE
OF THE AUTHORITIES. 

A NATURAL TENDENCY OF THE STATUTE IS TO INTIMIDATE, UNDER THREAT OF
CRIMINAL PROSECUTION, NOT ONLY ONE WHO WOULD TRANSPORT AN INDIGENT
MIGRANT, BUT ALSO THE MIGRANTS THEMSELVES.  ITS CONSEQUENCE OFTEN WILL
BE TO LEAVE THE LATTER SUBSTANTIALLY HELPLESS TO MOVE, COMPELLING THEM
TO REMAIN AT THEIR PLACE OF ORIGIN WHERE EMPLOYMENT IS WANTING AND
OPPORTUNITY LACKING. 

IF THE MOVEMENT OF INDIGENT MIGRANTS INTO A STATE MAY BE BARRED OR
IMPEDED BECAUSE OF FEAR OF THE CREATION OF A BURDEN WHICH MAY
SUBSEQUENTLY FALL ON THE RESIDENTS OF THAT STATE, THEN MIGRATION OUT OF
A STATE MIGHT ALSO BE RESTRAINED WHERE DEPOPULATION WOULD INCREASE THE
BURDEN OF GOVERNMENTAL INDEBTEDNESS ON THOSE REMAINING.  IF THE
PRINCIPLE OF FREEZING POPULATION IN AREAS OF ORIGIN IS CONSTITUTIONALLY
SOUND, THERE IS LEGAL SANCTION FOR THE GROWTH OF AN ECONOMIC CONDITION
OF VIRTUAL PEONAGE, CHAINING PEOPLE TO THAT PART OF THE LAND WHERE
ACCIDENT OF BIRTH HAS FIRST PLACED THEM. 

BY IMPEDING THE FREE MOVEMENT OF EMPLOYABLES ACROSS STATE LINES, THE
STATUTE INTERPOSES A BARRIER AGAINST THE COMPETITION OF THE LABOR OF
NONRESIDENTS WITH THAT OF RESIDENTS.  CF. BEST & CO. V. MAXWELL, 311
U.S. 454, 457.  THE ABSENCE OF CAPITAL CANNOT SERVE TO FETTER THE
MERCHANT OR DENY HIM A REGIONAL OR NATIONAL MARKET.  BALDWIN V. SEELIG,
294 U.S. 511, 527. 

POVERTY IS NOT A "MORAL PESTILENCE."  NEW YORK V. MILN, 11 PET. 102,
142.  MIGRANTS ARE NOT IMPROPER SUBJECTS OF COMMERCE.  ASBELL V.
KANSAS, 209 U.S. 251; BALDWIN V. SEELIG, SUPRA, 525. 

INTERSTATE TRADE, THE REDISTRIBUTION OF POPULATION FROM MARGINAL AND
SUB-MARGINAL AREAS, THE RIGHT TO MIGRATE IN PURSUIT OF LIVELIHOOD,
FREEDOM OF OPPORTUNITY, FREEDOM OF PASSAGE FROM STATE TO STATE, THE
NEEDS OF NATIONAL INDUSTRY, THE REQUIREMENTS OF NATIONAL DEFENSE -
THESE ARE NOT MERELY LOCAL, INTERNAL AFFAIRS AND MATTERS ON WHICH THE
STATE MAY HAVE SOME POWER TO AFFECT INTERSTATE COMMERCE.  THEY ARE
MATTERS AFFECTED WITH A VITAL NATIONAL INTEREST; THEY ARE THE VERY
FABRIC OF NATIONAL UNITY.  WHETHER BY THE STATUTE IN QUESTION
CALIFORNIA SEEKS TO BAR THE PASSAGE OF INDIGENTS DIRECTLY OR
INDIRECTLY, HER ACTION IN EITHER EVENT INVADES THE POWER OF THE
NATIONAL GOVERNMENT OVER INTERSTATE COMMERCE. 

THE STATUTE IS VOID ON ITS FACE AND OPERATES TO DEPRIVE THE APPELLANT
OF LIBERTY WITHOUT DUE PROCESS OF LAW AND TO DENY HIM THE EQUAL
PROTECTION OF THE LAWS. 

IT IS BEYOND THE POWER OF THE STATE TO MAKE A CRIME OF ASSISTING
ANOTHER IN THE EXERCISE OF HIS CONSTITUTIONAL RIGHTS.  DE JONGE V.
OREGON, 299 U.S. 353, 357, 362 ET SEQ. COULD DUNCAN HAVE BEEN BARRED
FROM CALIFORNIA, SOLELY BECAUSE OF HIS INDIGENCY, WITHOUT BEING
DEPRIVED OF LIBERTY WITHOUT DUE PROCESS?  CF. SCHNEIDER V. IRVINGTON,
308 U.S. 147, 161.  THE RIGHT TO WORK FOR A LIVING IN THE COMMON
OCCUPATIONS OF THE COMMUNITY IS OF THE VERY ESSENCE OF THE PERSONAL
FREEDOM AND OPPORTUNITY THAT IT WAS THE PURPOSE OF THE FOURTEENTH
AMENDMENT TO SECURE.  TRUAX V. RAICH, 239 U.S. 33, 41.  IMPLICIT
THEREIN IS THE RIGHT TO GO TO ANY PLACE WHERE THOSE OCCUPATIONS MAY
REQUIRE. 

FREEDOM OF MOVEMENT AND OF RESIDENCE MUST BE A FUNDAMENTAL RIGHT IN A
DEMOCRATIC STATE.  WHETHER WITHIN THE PRIVILEGES AND IMMUNITIES CLAUSE
OF THE FOURTEENTH AMENDMENT OR WITHIN THE TERM LIBERTY IN THE DUE
PROCESS CLAUSE, IT IS A BASIC CONSTITUTIONAL RIGHT, THE MORE VALUABLE
TO THOSE WHO MIGRATE BECAUSE OF ECONOMIC COMPULSIONS. 

THE PROTECTION OF OUR FORM OF GOVERNMENT MAY NOT BE MINIFIED BY
REASONS OF TEMPORARY ECONOMIC EXPEDIENCY.  "THOSE WHO WOULD ENJOY THE
BLESSINGS OF LIBERTY MUST, LIKE MEN, UNDERGO THE FATIGUES OF SUPPORTING
IT."  THOMAS PAINE, COMPLETE WORKS, VOL. 2, 135.  THE FOURTEENTH
AMENDMENT IS NO FAIR WEATHER PROTECTION OF THE LIBERTIES OF PERSONS. 
ITS OPERATION IS NOT LIMITED TO TIMES OF ECONOMIC SECURITY WHEN THERE
IS NO PRESSURE UPON STATES TO CURTAIL LIBERTY.  IT FURNISHES A
"GUARANTY AGAINST ANY ENCROACHMENT BY THE STATES UPON THE FUNDAMENTAL
RIGHTS WHICH BELONG TO EVERY CITIZEN AS A MEMBER OF SOCIETY."  UNITED
STATES V. CRUIKSHANK, 92 U.S. 542, 554. 

THE STATUTE CONTRAVENES THE PRIVILEGES AND IMMUNITIES CLAUSES OF THE
CONSTITUTION.  ART. IV, SEC. 2; FOURTEENTH AMENDMENT. 

ART. IV, SEC. 2, LIKE ART. IV OF THE ARTICLES OF CONFEDERATION, WAS
INTENDED TO INSURE TO EACH OF THE CITIZENS OF THE SEVERAL STATES THE
FUNDAMENTAL RIGHT TO MOVE ABOUT FREELY AND EASILY FROM STATE TO STATE
IN SEARCH OF OPPORTUNITY.  EXPRESSIONS OF THE COURTS CONFIRM THIS
CONCLUSION.  SEE CORFIELD V. CORYELL, 6 FED. CAS. 546, 551; PASSENGER
CASES, 7 HOW.  283, 492; CRANDALL V. NEVADA, 6 WALL.  35, 49; PAUL V.
VIRGINIA, 8 WALL.  168, 180; WARD V. MARYLAND, 12 WALL.  418, 430;
SLAUGHTER-HOUSE CASES, 16 WALL.  36, 76; UNITED STATES V. WHEELER, 254
U.S. 281, 290, 297; TRUAX V. RAICH, 239 U.S. 33.  DISTINGUISHING CASES
DEALING WITH QUARANTINES OF PERSONS AND PRODUCTS. 

THE PROPOSITION THAT A STATE, UNDER ITS POLICE POWERS, MAY EXCLUDE
"PAUPERS," IS NOT SUSTAINED BY THE CASES THAT HAVE BEEN CITED FOR IT.
DISTINGUISHING NEW YORK V. MILN, 11 PET. 102, AND OTHER CASES IN THIS
COURT. 

THE MILN CASE WAS DIRECTLY OR IMPLIEDLY OVERRULED BY HENDERSON V.
WICKHAM, 92 U.S. 259. 

THIS COURT HAS NEVER SQUARELY PASSED UPON THE QUESTION WHETHER A
STATE MAY, IN THE EXERCISE OF ITS POLICE POWER, EXCLUDE PAUPERS FROM
ITS LIMITS.  THERE IS, HOWEVER, AMPLE AUTHORITY IN THE STATE COURTS TO
THE EFFECT THAT A STATE MAY PREVENT PERSONS WHO ARE LUNATICS, IDIOTS,
VAGRANTS, AGED, OR INFIRM, AND WHO ARE WITHOUT ANY VISIBLE MEANS OF
SUPPORT, FROM COMING WITHIN ITS LIMITS.  BUT, UNFORTUNATELY, IN MOST OF
THESE CASES, THE DECISIONS DO NOT TURN ON WHETHER THESE PERSONS ARE
PAUPERS OR INDIGENTS, BUT RATHER ON THE QUESTION OF A PARTICULAR
LOCALITY'S SUPPORT OR NONSUPPORT OF THESE PEOPLE. 

IN EACH OF THESE CASES, EXCLUSION IS NARROWLY LIMITED TO THOSE WHO
ARE PHYSICALLY OR MENTALLY HANDICAPPED AND WITHOUT SOME MEANS OF
SUPPORT; AND, IN NO CASE HAS THIS DOCTRINE BEEN EXPANDED TO INCLUDE
PERSONS WHO ARE NOT IMBECILES, WHO ARE NOT DRUNKARDS, WHO ARE NOT
VAGRANTS OR TRAMPS, WHO ARE NOT DISEASED, WHO ARE NOT AGED OR INFIRM,
NOR AS TO PERSONS WHO HAVE ALWAYS WORKED, PERSONS WHO ARE WILLING TO
WORK, PERSONS WHO ARE ABLE TO WORK AND WHO ARE COMPETENT IN EVERY OTHER
RESPECT, EXCEPT THAT THEY ARE TEMPORARILY WITHOUT WORK AND WITHOUT
FUNDS. 

THIS STATE STATUTE, APPLYING TO ALL MODES OF INTERSTATE
TRANSPORTATION OF PERSONS INTO CALIFORNIA, IMPOSES THE BURDEN UPON
EVERY CARRIER INTO THAT STATE, IF IT WOULD AVOID CRIMINAL LIABILITY, OF
DETERMINING FOR ITSELF WHETHER IT HAS ABOARD ANY PERSONS WHO MAY BE
DEEMED "INDIGENT"; YET THE CONTENT OF THAT TERM IS WHOLLY UNDEFINED. 

THE STATUTE IS NOT SUFFICIENTLY EXPLICIT.  IT FAILS TO INFORM THOSE
SUBJECT TO ITS PENALTIES OF WHAT CONDUCT WILL RENDER THEM LIABLE.  IT
IS THEREFORE VOID FOR UNCERTAINTY.  EX PARTE LEACH, 215 CAL. 536; HEWIT
V. STATE BOARD OF MEDICAL EXAMINERS, 148 CAL. 590; STATE V. PARTLOW, 91
N.C. 550. 

THE ACT OBLIGES THE CARRIER TO CONDUCT AN INVESTIGATION OF ITS OWN
INTO THE HEALTH, MORALS, PERSONAL AND FINANCIAL POSITION, OF THOSE
ABOARD, IN ORDER TO DETERMINE WHO IS "INDIGENT."  IGNORANCE AND MISTAKE
DO NOT EXCUSE.  THE STATUTE MAKES NO PROVISION FOR ITS ADMINISTRATION,
OR FOR A HEARING, OR FOR AN APPEAL, AS TO WHETHER THE CARRIER HAS
COMPLIED WITH ITS PROVISIONS.  UPON ARRIVAL AT THE STATE BORDER, THE
CARRIER WILL BE SUBJECTED TO AN EQUALLY RIGOROUS INSPECTION BY STATE
OFFICIALS, OR WILL BE REQUIRED TO STOP AT A QUARANTINE STATION, OR AT
SOME PORT OF ENTRY.  THIS DOUBLE INVESTIGATION WILL INVOLVE THE
EXPENDITURE OF ENORMOUS SUMS BY THE CARRIERS, AND WILL EXCLUDE FROM
INTERSTATE PASSAGE ON PUBLIC CONVEYANCES THOUSANDS OF CITIZENS WHOM THE
CARRIERS MAY REGARD AS "POOR RISKS." 

THE CONTROLLING FACTOR IS NOT WHETHER SUCH A LAW OR REGULATION
AFFECTS INTERSTATE OR FOREIGN COMMERCE, BUT WHETHER THE TYPE OF
COMMERCE IS WITHIN THE EXCLUSIVE JURISDICTION OF CONGRESS. 

NO ONE CAN DENY THAT THIS ACT IMPOSES A DEFINITE, ARBITRARY
INTERFERENCE AND BURDEN ON INTERSTATE COMMERCE, OVER WHICH CONGRESS HAS
EXCLUSIVE JURISDICTION. 

THE QUESTION OF INTERSTATE MIGRATION IS NOT FOR EACH STATE TO
REGULATE INDIVIDUALLY AND WITHOUT REGARD TO THE REGULATIONS ENACTED BY
THE OTHER STATES.  NOR IS IT A PROBLEM WHICH EACH STATE IN INTERCOURSE
WITH ALL OTHERS CAN SETTLE FOR ITSELF, WITHOUT INTERFERING WITH THE
POWER OVER INTERSTATE COMMERCE DELEGATED TO CONGRESS BY THE
CONSTITUTION. 

THE STATUTE MUST ALSO FALL FOR THE REASON THAT IT VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, BARBIER V. CONNOLLY, 113
U.S. 27, 31.  IT DECLARES, IN EFFECT, THAT A PERSON, COMPETENT AND ABLE
AND WILLING TO WORK AND WHO CAN AFFORD TO PAY FOR HIS TRANSPORTATION ON
A PUBLIC CARRIER, IS NOT AN INDIGENT; WHILE A PERSON WHO POSSESSES LIKE
QUALIFICATIONS, BUT WHO CAN NOT AFFORD TO PAY FOR HIS TRANSPORTATION,
IS AN INDIGENT.  SEE TRUAX V. RAICH, 239 U.S. 33. 

THE STATUTE IS A VALID EXERCISE OF THE POLICE POWER OF THE STATE. 

IN NEW YORK V. MILN, 11 PET. 102, THIS COURT RECOGNIZED THE RIGHT OF
A STATE TO EXCLUDE PAUPERS FROM ITS BOUNDARIES.  SEE ALSO, HANNIBAL &
ST. JOSEPH R. CO. V. HUSEN, 95 U.S. 465; IN RE AH FONG, 3 SAW.  144, 1
FED. CAS. 213; HENDERSON V. WICKHAM, 92 U.S. 259; CHY LUNG V. FREEMAN,
92 U.S. 275; PASSENGER CASES, 7 HOW.  283; PLUMLEY V. MASSACHUSETTS,
155 U.S. 461; MISSOURI, K. & T. RY. V. HABER, 169 U.S. 613. 

IN KAORU YAMATAYA V. FISHER (THE "JAPANESE IMMIGRANT CASE"), 189 U.S.
86, THE COURT HELD THAT THE EXCLUSION OF PAUPERS WAS A POLICE MEASURE
PROPERLY TO BE EXERCISED BY THE FEDERAL GOVERNMENT.  SIMILARLY,
EXCLUSION BY THE STATES IS BUT THE STATES' EXERCISE OF THE SAME KIND OF
POWER, AND IS VALID UNDER THE RESERVATION OF SUCH POWER BY THE SEVERAL
STATES UNDER THE CONSTITUTION. 

MANY OTHER STATES HAVE STATUTES SIMILAR TO THE CALIFORNIA STATUTE. 
STATE V. CORNISH, 66 N.H. 329; PITKIN COUNTY V. LAW, 3 COLO. APP. 328;
SUPERINTENDENTS OF THE POOR V. NELSON, 75 MICH. 154; COE V. SMITH, 24
WEND.  341. 

ALTHOUGH IN 1901, WHEN THE STATUTE UNDER CONSIDERATION WAS ORIGINALLY
ENACTED, THERE WAS NO ACUTE PAUPER IMMIGRATION TO CALIFORNIA, THE LAST
DECADE HAS DEVELOPED FROM THIS SOURCE A PROBLEM STAGGERING IN ITS
PROPORTIONS. 

A SOCIAL PROBLEM IN THE SOUTH AND SOUTHWEST FOR OVER HALF A CENTURY,
THE "POOR WHITE" TENANTS AND SHARE CROPPERS, FOLLOWING REDUCTION OF
COTTON PLANTING, DROUGHTS AND ADVERSE CONDITIONS FOR SMALL-SCALE
FARMING, SWARMED INTO CALIFORNIA.  THESE UNFORTUNATE PEOPLE WERE
USUALLY DESTITUTE WHEN THEY ARRIVED.  THEIR ORDINARY ROUTINE UPON
COMING TO CALIFORNIA HAS BEEN, FIRST TO GO ON FEDERAL RELIEF FOR ONE
YEAR, AND THEN ON TO STATE AND COUNTY RELIEF ROLLS INDEFINITELY.  AFTER
THEY EARN A LITTLE MONEY IN THE HARVESTS, THEY SEND BACK HOME
TRANSPORTATION FOR THEIR RELATIVES, GENERALLY THE AGED AND INFIRM, AND
THESE IMMEDIATELY BECOME AND CONTINUE TO BE PUBLIC CHARGES. 

THEY AVOID OUR CITIES AND EVEN OUR TOWNS BY CROWDING TOGETHER, IN THE
OPEN COUNTRY AND IN CAMPS, UNDER LIVING CONDITIONS SHOCKING BOTH AS TO
SANITATION AND SOCIAL ENVIRONMENT.  UNDERFED FOR MANY GENERATIONS, THEY
BRING WITH THEM THE VARIOUS NUTRITIONAL DISEASES OF THE SOUTH.  THEIR
PRESENCE HERE UPON PUBLIC RELIEF, WITH THEIR HABITUAL UNBALANCED DIET
AND CONSEQUENTLY LOWERED BODY RESISTANCE, MEANS A CONSTANT THREAT OF
EPIDEMICS.  VENEREAL DISEASES AND TUBERCULOSIS ARE COMMON WITH THEM,
AND ARE ON THE INCREASE.  THE INCREASE OF RAPE AND INCEST ARE READILY
TRACEABLE TO THE CROWDED CONDITIONS IN WHICH THESE PEOPLE ARE FORCED TO
LIVE.  PETTY CRIME AMONG THEM HAS FEATURED THE CRIMINAL CALENDARS OF
EVERY COMMUNITY INTO WHICH THEY HAVE MOVED.    AS PROVEN BY EXPERIENCE
IN AGRICULTURAL STRIKES, THEY ARE READILY LED INTO RIOTS BY AGITATORS;
ALTHOUGH, IT MUST BE SAID, THEY STUBBORNLY RESIST ALL SUBVERSIVE
INFLUENCES, BEING LOYAL AMERICANS WHOSE ONLY WISH IS FOR A BETTER
CHANCE IN LIFE. 

THEIR COMING HERE HAS ALARMINGLY INCREASED OUR TAXES AND THE COST OF
WELFARE OUTLAYS, OLD AGE PENSIONS, AND THE CARE OF THE CRIMINAL, THE
INDIGENT SICK, THE BLIND AND THE INSANE. 

SHOULD THE STATES THAT HAVE SO LONG TOLERATED, AND EVEN FOSTERED, THE
SOCIAL CONDITIONS THAT HAVE REDUCED THESE PEOPLE TO THEIR STATE OF
POVERTY AND WRETCHEDNESS, BE ABLE TO GET RID OF THEM BY LOW RELIEF AND
INSIGNIFICANT WELFARE ALLOWANCES AND DRIVE THEM INTO CALIFORNIA TO
BECOME OUR PUBLIC CHARGES, UPON OUR IMMEASURABLY HIGHER STANDARD OF
SOCIAL SERVICES?  NATURALLY, WHEN THESE PEOPLE CAN LIVE ON RELIEF IN
CALIFORNIA BETTER THAN THEY CAN BY WORKING IN MISSISSIPPI, ARKANSAS,
TEXAS OR OKLAHOMA, THEY WILL CONTINUE TO COME TO THIS STATE. 

IF A STATUTE BE A PROPER POLICE MEASURE, IT IS VALID EVEN THOUGH
INTERSTATE COMMERCE MAY BE INCIDENTALLY AFFECTED.  BAYSIDE FISH FLOUR
CO. V. GENTRY, 297 U.S. 442; GREAT NORTHERN R. CO. V. WASHINGTON, 300
U.S. 154; DENVER & R.G.R. CO. V. DENVER, 250 U.S. 241.  A STATE
REGULATION DECLARING THAT PAUPERS, INDIGENTS, AND VAGABONDS ARE NOT
LEGITIMATE SUBJECTS OF INTERSTATE COMMERCE IS NOT VIOLATIVE OF THE
COMMERCE CLAUSE.  LICENSE CASES, 5 HOW.  504; PASSENGER CASES, 7 HOW. 
283. 

THE FOURTEENTH AMENDMENT PROTECTS THE LIFE, LIBERTY AND PROPERTY OF
PERSONS WITHIN THE BOUNDARIES OF THE UNITED STATES, BUT THIS PROTECTION
IS SUBJECT TO REASONABLE POLICE REGULATION BY THE STATES.  NEBBIA V.
NEW YORK, 291 U.S. 502; LACOSTE V. DEPARTMENT OF CONSERVATION, 263 U.S.
545; KELLER V. UNITED STATES, 213 U.S. 138. 

IT IN EFFECT EXCLUDE ANY INDIGENT FAMILY.  IT APPLIES ONLY TO OTHER
PERSONS, WHETHER CITIZENS OF CALIFORNIA OR NOT, WHO, AS VOLUNTEERS AND
WITHOUT ANY TIE OF LEGAL SUPPORT TO THE INDIGENT, KNOWINGLY BRING, OR
ASSIST IN BRINGING, INDIGENT PERSONS INTO THE STATE. 

SUCH ACT OF STIMULATING, PROMOTING OR ASSISTING AN INFLUX OF
DESTITUTE PERSONS, OVER AND ABOVE A NORMAL ENTRY OF INDIGENTS
THEMSELVES, IS, IN ITSELF, RELATED TO A LOCAL PROBLEM AFFECTING THE
HEALTH, SAFETY, WELFARE AND ECONOMIC RESOURCES OF THE STATE. 

THE STATUTE, IN ITS REFERENCE TO INDIGENT PERSONS, CONTEMPLATES ONLY
A LIMITED CLASS OF PERSONS, I.E., PERSONS SO DESTITUTE OF MEANS FOR THE
SUPPORT OF THEMSELVES AND THEIR FAMILIES AS TO BE DEPENDENT ON PUBLIC
AID. 

CONGRESS HAS NOT ACTED IN THE FIELD OF REGULATING THE MOVEMENT OF
SUCH PERSONS BETWEEN STATES BUT HAS MERELY MADE AVAILABLE SOME FUNDS TO
ASSIST IN THEIR CARE AFTER ARRIVAL, AND EVEN IN THIS RESPECT THE AID
CONSISTS MERELY IN THE PERMISSIVE USE BY CERTAIN FEDERAL AGENCIES OF
SUCH APPROPRIATIONS AS MAY BE AVAILABLE, THERE BEING NO PERMANENT OR
COMPREHENSIVE FEDERAL PLAN FOR THE PURPOSE. 

CONGRESS HAS ACTED TO EXCLUDE ALIEN "PAUPERS," "PROFESSIONAL
BEGGARS," "VAGRANTS," "PERSONS LIKELY TO BECOME A PUBLIC CHARGE" AND
"PERSONS WHOSE TICKET OR PASSAGE IS PAID FOR BY THE MONEY OF ANOTHER,
OR WHO ARE ASSISTED BY OTHERS TO COME  ...  " (U.S.C. TIT. 8, SEC. 3),
BUT HAS NOT PROVIDED ANY SIMILAR LEGISLATION FOR INTERSTATE MIGRATION. 

OF ARTICLE IV, SEC. 2 OF THE CONSTITUTION.  THE ARTICLES OF
CONFEDERATION EXPRESSLY EXCEPTED "PAUPPERS, VAGABONDS, AND FUGITIVES
FROM JUSTICE" FROM THOSE INHABITANTS OF EACH STATE ENTITLED TO ALL
PRIVILEGES AND IMMUNITIES OF THE CITIZENS OF THE SEVERAL STATES; AND
ARTICLE IV, SEC. 2 OF THE CONSTITUTION WAS DRAWN WITH REFERENCE TO THE
CORRESPONDING CLAUSE OF THE ARTICLES OF CONFEDERATION AND WAS INTENDED
TO PERPETUATE THE LIMITATIONS OF THE FORMER.  UNITED STATES V. WHEELER,
254 U.S. 281, 296. 

THE RIGHT OF PERSONS TO MOVE ACROSS STATE BOUNDARIES IS NOT REFERABLE
TO THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT. 
EVEN IF THAT CLAUSE COVERS THE RIGHT OF INGRESS AND EGRESS BETWEEN
STATES, IT DOES NOT, WHEN READ IN THE LIGHT OF THE EXCEPTION IMPLIED IN
ARTICLE IV, SEC. 2, IN RESPECT TO PAUPERS, AND IN THE LIGHT OF THE
REITERATED PRONOUNCEMENTS OF THIS COURT WITH RESPECT TO PAUPERS, APPLY
TO INGRESS AND EGRESS OF PAUPERS, PERSONS SO DESTITUTE AS TO BE
DEPENDENT ON PUBLIC AID. 

IN ANY EVENT, APPELLANT IS IN NO POSITION TO ASSERT THE INVALIDITY OF
SEC. 2615 UNDER THESE PARTICULAR CONSTITUTIONAL PROVISIONS, BECAUSE HE
HAS NOT BEEN DEPRIVED OF ANY PRIVILEGE OR IMMUNITY THEREBY SECURED,
EVEN IF IT BE ASSUMED THAT AN INDIGENT NONRESIDENT COULD RELY UPON THEM
IN A PROPER CASE. 

MR. JUSTICE BYRNES DELIVERED THE OPINION OF THE COURT. 

THE FACTS OF THIS CASE ARE SIMPLE AND ARE NOT DISPUTED.  APPELLANT IS
A CITIZEN OF THE UNITED STATES AND A RESIDENT OF CALIFORNIA.  IN
DECEMBER, 1939, HE LEFT HIS HOME IN MARYSVILLE, CALIFORNIA, FOR SPUR,
TEXAS, WITH THE INTENTION OF BRINGING BACK TO MARYSVILLE HIS WIFE'S
BROTHER, FRANK DUNCAN, A CITIZEN OF THE UNITED STATES AND A RESIDENT OF
TEXAS.  WHEN HE ARRIVED IN TEXAS, APPELLANT LEARNED THAT DUNCAN HAD
LAST BEEN EMPLOYED BY THE WORKS PROGRESS ADMINISTRATION.  APPELLANT
THUS BECAME AWARE OF THE FACT THAT DUNCAN WAS AN INDIGENT PERSON AND HE
CONTINUED TO BE AWARE OF IT THROUGHOUT THE PERIOD INVOLVED IN THIS
CASE.  THE TWO MEN AGREED THAT APPELLANT SHOULD TRANSPORT DUNCAN FROM
TEXAS TO MARYSVILLE IN APPELLANT'S AUTOMOBILE.  ACCORDINGLY, THEY LEFT
SPUR ON JANUARY 1, 1940, ENTERED CALIFORNIA BY WAY OF ARIZONA ON
JANUARY 3, AND REACHED MARYSVILLE ON JANUARY 5.  WHEN HE LEFT TEXAS,
DUNCAN HAD ABOUT $20.  IT HAD ALL BEEN SPENT BY THE TIME HE REACHED
MARYSVILLE.  HE LIVED WITH APPELLANT FOR ABOUT TEN DAYS UNTIL HE
OBTAINED FINANCIAL ASSISTANCE FROM THE FARM SECURITY ADMINISTRATION. 
DURING THE TEN DAY INTERVAL, HE HAD NO EMPLOYMENT. 

IN JUSTICE COURT A COMPLAINT WAS FILED AGAINST APPELLANT UNDER SEC.
2615 OF THE WELFARE AND INSTITUTIONS CODE OF CALIFORNIA, WHICH
PROVIDES:  "EVERY PERSON, FIRM OR CORPORATION OR OFFICER OR AGENT
THEREOF THAT BRINGS OR ASSISTS IN BRINGING INTO THE STATE ANY INDIGENT
PERSON WHO IS NOT A RESIDENT OF THE STATE, KNOWING HIM TO BE AN
INDIGENT PERSON, IS GUILTY OF A MISDEMEANOR."  ON DEMURRER TO THE
COMPLAINT, APPELLANT URGED THAT THE SECTION VIOLATED SEVERAL PROVISIONS
OF THE FEDERAL CONSTITUTION.  THE DEMURRER WAS OVERRULED, THE CAUSE WAS
TRIED, APPELLANT WAS CONVICTED AND SENTENCED TO SIX MONTHS IMPRISONMENT
IN THE COUNTY JAIL, AND SENTENCE WAS SUSPENDED. 

ON APPEAL TO THE SUPERIOR COURT OF YUBA COUNTY, THE FACTS AS STATED
ABOVE WERE STIPULATED.  THE SUPERIOR COURT, ALTHOUGH REGARDING AS
"CLOSE" THE QUESTION OF THE VALIDITY OF THE SECTION, FELT "CONSTRAINED
TO UPHOLD THE STATUTE AS A VALID EXERCISE OF THE POLICE POWER OF THE
STATE OF CALIFORNIA."  CONSEQUENTLY, THE CONVICTION WAS AFFIRMED.  NO
APPEAL TO A HIGHER STATE COURT WAS OPEN TO APPELLANT.  WE NOTED
PROBABLE JURISDICTION EARLY LAST TERM, AND LATER ORDERED REARGUMENT
(313 U.S. 545) WHICH HAS BEEN HELD. 

AT THE THRESHOLD OF OUR INQUIRY A QUESTION ARISES WITH RESPECT TO THE
INTERPRETATION OF SEC. 2615.  ON REARGUMENT, THE ATTORNEY GENERAL OF
CALIFORNIA HAS SUBMITTED AN EXPOSITION OF THE HISTORY OF THE SECTION,
WHICH REVEALS THAT STATUTES SIMILAR, THOUGH NOT IDENTICAL, TO IT HAVE
BEEN IN EFFECT IN CALIFORNIA SINCE 1860.  (SEE CAL. STAT. (1860) 213;
CAL. STAT. (1901) 636; CAL. STAT. (1933) 2005).  NEITHER UNDER THESE
FORERUNNERS NOR UNDER SEC. 2615 ITSELF DOES THE TERM "INDIGENT PERSON"
SEEM TO HAVE BEEN ACCORDED AN AUTHORITATIVE INTERPRETATION BY THE
CALIFORNIA COURTS.  THE APPELLEE CLAIMS FOR THE SECTION A VERY LIMITED
SCOPE.  IT URGES THAT THE TERM "INDIGENT PERSON" MUST BE TAKEN TO
INCLUDE ONLY PERSONS WHO ARE PRESENTLY DESTITUTE OF PROPERTY AND
WITHOUT RESOURCES TO OBTAIN THE NECESSITIES OF LIFE, AND WHO HAVE NO
RELATIVES OR FRIENDS ABLE AND WILLING TO SUPPORT THEM.  IT IS CONCEDED,
HOWEVER, THAT THE TERM IS NOT CONFINED TO THOSE WHO ARE PHYSICALLY OR
MENTALLY INCAPACITATED.  WHILE THE GENERALITY OF THE LANGUAGE OF THE
TO THE TERM THIS NARROW MEANING. 

ARTICLE I, SEC. 8 OF THE CONSTITUTION DELEGATES TO THE CONGRESS THE
AUTHORITY TO REGULATE INTERSTATE COMMERCE.  AND IT IS SETTLED BEYOND
QUESTION THAT THE TRANSPORTATION OF PERSONS IS "COMMERCE," WITHIN THE
MEANING OF THAT PROVISION.  FN1 IT IS NEVERTHELESS TRUE, THAT THE
STATES ARE NOT WHOLLY PRECLUDED FROM EXERCISING THEIR POLICE POWER IN
MATTERS OF LOCAL CONCERN EVEN THOUGH THEY MAY THEREBY AFFECT INTERSTATE
COMMERCE.  CALIFORNIA V. THOMPSON, 313 U.S. 109, 113.  THE ISSUE
PRESENTED IN THIS CASE, THEREFORE, IS WHETHER THE PROHIBITION EMBODIED
IN SEC. 2615 AGAINST THE "BRINGING" OR TRANSPORTATION OF INDIGENT
PERSONS INTO CALIFORNIA IS WITHIN THE POLICE POWER OF THAT STATE.  WE
THINK THAT IT IS NOT, AND HOLD THAT IT IS AN UNCONSTITUTIONAL BARRIER
TO INTERSTATE COMMERCE. 

THE GRAVE AND PERPLEXING SOCIAL AND ECONOMIC DISLOCATION WHICH THIS
STATUTE REFLECTS IS A MATTER OF COMMON KNOWLEDGE AND CONCERN.  WE ARE
NOT UNMINDFUL OF IT.  WE APPRECIATE THAT THE SPECTACLE OF LARGE
SEGMENTS OF OUR POPULATION CONSTANTLY ON THE MOVE HAS GIVEN RISE TO
URGENT DEMANDS UPON THE INGENUITY OF GOVERNMENT.  BOTH THE BRIEF OF THE
ATTORNEY GENERAL OF CALIFORNIA AND THAT OF THE CHAIRMAN OF THE SELECT
COMMITTEE OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, AS
AMICUS CURIAE, HAVE SHARPENED THIS APPRECIATION.  THE STATE ASSERTS
THAT THE HUGE INFLUX OF MIGRANTS INTO CALIFORNIA IN RECENT YEARS HAS
RESULTED IN PROBLEMS OF HEALTH, MORALS, AND ESPECIALLY FINANCE, THE
PROPORTIONS OF WHICH ARE STAGGERING.  IT IS NOT FOR US TO SAY THAT THIS
IS NOT TRUE.  WE HAVE REPEATEDLY AND RECENTLY AFFIRMED, AND WE NOW
REAFFIRM, THAT WE DO NOT CONCEIVE IT OUR FUNCTION TO PASS UPON "THE
WISDOM, NEED, OR APPROPRIATENESS" OF THE LEGISLATIVE EFFORTS OF THE
STATES TO SOLVE SUCH DIFFICULTIES.  SEE OLSEN V. NEBRASKA, 313 U.S.
236, 246. 

BUT THIS DOES NOT MEAN THAT THERE ARE NO BOUNDARIES TO THE
PERMISSIBLE AREA OF STATE LEGISLATIVE ACTIVITY.  THERE ARE.  AND NONE
IS MORE CERTAIN THAN THE PROHIBITION AGAINST ATTEMPTS ON THE PART OF
ANY SINGLE STATE TO ISOLATE ITSELF FROM DIFFICULTIES COMMON TO ALL OF
THEM BY RESTRAINING THE TRANSPORTATION OF PERSONS AND PROPERTY ACROSS
ITS BORDERS.  IT IS FREQUENTLY THE CASE THAT A STATE MIGHT GAIN A
MOMENTARY RESPITE FROM THE PRESSURE OF EVENTS BY THE SIMPLE EXPEDIENT
OF SHUTTING ITS GATES TO THE OUTSIDE WORLD.  BUT, IN THE WORDS OF MR.
JUSTICE CARDOZO:  "THE CONSTITUTION WAS FRAMED UNDER THE DOMINION OF A
POLITICAL PHILOSOPHY LESS PAROCHIAL IN RANGE.  IT WAS FRAMED UPON THE
THEORY THAT THE PEOPLES OF THE SEVERAL STATES MUST SINK OR SWIM
TOGETHER, AND THAT IN THE LONG RUN PROSPERITY AND SALVATION ARE IN
UNION AND NOT DIVISION."  BALDWIN V. SEELIG, 294 U.S. 511, 523. 

IT IS DIFFICULT TO CONCEIVE OF A STATUTE MORE SQUARELY IN CONFLICT
WITH THIS THEORY THAN THE SECTION CHALLENGED HERE.  ITS EXPRESS PURPOSE
AND INEVITABLE EFFECT IS TO PROHIBIT THE TRANSPORTATION OF INDIGENT
PERSONS ACROSS THE CALIFORNIA BORDER.  THE BURDEN UPON INTERSTATE
COMMERCE IS INTENDED AND IMMEDIATE; IT IS THE PLAIN AND SOLE FUNCTION
OF THE STATUTE.  MOREOVER, THE INDIGENT NON-RESIDENTS WHO ARE THE REAL
VICTIMS OF THE STATUTE ARE DEPRIVED OF THE OPPORTUNITY TO EXERT
POLITICAL PRESSURE UPON THE CALIFORNIA LEGISLATURE IN ORDER TO OBTAIN A
CHANGE IN POLICY.  SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303
U.S. 177, 185, N. 2.  WE THINK THIS STATUTE MUST FAIL UNDER ANY KNOWN
TEST OF THE VALIDITY OF STATE INTERFERENCE WITH INTERSTATE COMMERCE. 

IT IS URGED, HOWEVER, THAT THE CONCEPT WHICH UNDERLIES SEC. 2615
ENJOYS A FIRM BASIS IN ENGLISH AND AMERICAN HISTORY.  FN2  THIS IS THE
NOTION THAT EACH COMMUNITY SHOULD CARE FOR ITS OWN INDIGENT, THAT
RELIEF IS SOLELY THE RESPONSIBILITY OF LOCAL GOVERNMENT.  OF THIS IT
MUST FIRST BE SAID THAT WE ARE NOT NOW CALLED UPON TO DETERMINE
ANYTHING OTHER THAN THE PROPRIETY OF AN ATTEMPT BY A STATE TO PROHIBIT
THE TRANSPORTATION OF INDIGENT NON-RESIDENTS INTO ITS TERRITORY.  THE
NATURE AND EXTENT OF ITS OBLIGATION TO AFFORD RELIEF TO NEWCOMERS IS
NOT HERE INVOLVED.  WE DO, HOWEVER, SUGGEST THAT THE THEORY OF THE
ELIZABETHAN POOR LAWS NO LONGER FITS THE FACTS.  RECENT YEARS, AND
PARTICULARLY THE PAST DECADE, HAVE BEEN MARKED BY A GROWING RECOGNITION
THAT IN AN INDUSTRIAL SOCIETY THE TASK OF PROVIDING ASSISTANCE TO THE
NEEDY HAS CEASED TO BE LOCAL IN CHARACTER.  THE DUTY TO SHARE THE
BURDEN, IF NOT WHOLLY TO ASSUME IT, HAS BEEN RECOGNIZED NOT ONLY BY
STATE GOVERNMENTS, BUT BY THE FEDERAL GOVERNMENT AS WELL.  THE CHANGED
ATTITUDE IS REFLECTED IN THE SOCIAL SECURITY LAWS UNDER WHICH THE
FEDERAL AND STATE GOVERNMENTS COOPERATE FOR THE CARE OF THE AGED, THE
BLIND AND DEPENDENT CHILDREN.  U.S.C., TITLE 42, SECS. 301-1307, ESP. 
SECS.  301, 501, 601, 701, 721, 801, 1201.  IT IS REFLECTED IN THE
WORKS PROGRAMS UNDER WHICH WORK IS FURNISHED THE UNEMPLOYED, WITH THE
STATES SUPPLYING APPROXIMATELY 25% AND THE FEDERAL GOVERNMENT
APPROXIMATELY 75% OF THE COST.  SEE, E.G., JOINT RESOLUTION OF JUNE 26,
1940, C. 432, SEC. 1(D), 54 STAT. 611, 613.  IT IS FURTHER REFLECTED IN
THE FARM SECURITY LAWS, UNDER WHICH THE ENTIRE COST OF THE RELIEF
PROVISIONS IS BORNE BY THE FEDERAL GOVERNMENT.  ID., AT SECS. 2(A),
2(B), 2(D). 

INDEED, THE RECORD IN THIS VERY CASE ILLUSTRATES THE INADEQUATE BASIS
IN FACT FOR THE THEORY THAT RELIEF IS PRESENTLY A LOCAL MATTER.  BEFORE
LEAVING TEXAS, DUNCAN HAD RECEIVED ASSISTANCE FROM THE WORKS PROGRESS
ADMINISTRATION.  AFTER ARRIVING IN CALIFORNIA HE WAS AIDED BY THE FARM
SECURITY ADMINISTRATION, WHICH, AS WE HAVE SAID, IS WHOLLY FINANCED BY
THE FEDERAL GOVERNMENT.  THIS IS NOT TO SAY THAT OUR JUDGMENT WOULD BE
DIFFERENT IF DUNCAN HAD RECEIVED RELIEF FROM LOCAL AGENCIES IN TEXAS
AND CALIFORNIA.  NOR IS IT TO SUGGEST THAT THE FINANCIAL BURDEN OF
ASSISTANCE TO INDIGENT PERSONS DOES NOT CONTINUE TO FALL HEAVILY UPON
LOCAL AND STATE GOVERNMENTS.  IT IS ONLY TO ILLUSTRATE THAT IN NOT
INCONSIDERABLE MEASURE THE RELIEF OF THE NEEDY HAS BECOME THE COMMON
RESPONSIBILITY AND CONCERN OF THE WHOLE NATION.    WHAT HAS BEEN SAID
WITH RESPECT TO FINANCING RELIEF IS NOT WITHOUT ITS BEARING UPON THE
REGULATION OF THE TRANSPORTATION OF INDIGENT PERSONS.  FOR THE SOCIAL
PHENOMENON OF LARGE-SCALE INTERSTATE MIGRATION IS AS CERTAINLY A MATTER
OF NATIONAL CONCERN AS THE PROVISION OF ASSISTANCE TO THOSE WHO HAVE
FOUND A PERMANENT OR TEMPORARY ABODE.  MOREOVER, AND UNLIKE THE RELIEF
PROBLEM, THIS PHENOMENON DOES NOT ADMIT OF DIVERSE TREATMENT BY THE
SEVERAL STATES.  THE PROHIBITION AGAINST TRANSPORTING INDIGENT NON
RESIDENTS INTO ONE STATE IS AN OPEN INVITATION TO RETALIATORY MEASURES,
AND THE BURDENS UPON THE TRANSPORTATION OF SUCH PERSONS BECOME
CUMULATIVE.  MOREOVER, IT WOULD BE A VIRTUAL IMPOSSIBILITY FOR MIGRANTS
AND THOSE WHO TRANSPORT THEM TO ACQUAINT THEMSELVES WITH THE PECULIAR
RULES OF ADMISSION OF MANY STATES.  "THIS COURT HAS REPEATEDLY DECLARED
THAT THE GRANT (THE COMMERCE CLAUSE) ESTABLISHED THE IMMUNITY OF
INTERSTATE COMMERCE FROM THE CONTROL OF THE STATES RESPECTING ALL THOSE
SUBJECTS EMBRACED WITHIN THE GRANT WHICH ARE OF SUCH A NATURE AS TO
DEMAND THAT, IF REGULATED AT ALL, THEIR REGULATION MUST BE PRESCRIBED
BY A SINGLE AUTHORITY."  MILK CONTROL BOARD V. EISENBERG FARM PRODUCTS,
306 U.S. 346, 351.  WE ARE OF THE OPINION THAT THE TRANSPORTATION OF
INDIGENT PERSONS FROM STATE TO STATE CLEARLY FALLS WITHIN THIS CLASS OF
SUBJECTS.  THE SCOPE OF CONGRESSIONAL POWER TO DEAL WITH THIS PROBLEM
WE ARE NOT NOW CALLED UPON TO DECIDE. 

THERE REMAINS TO BE NOTICED ONLY THE CONTENTION THAT THE LIMITATION
UPON STATE POWER TO INTERFERE WITH THE INTERSTATE TRANSPORTATION OF
PERSONS IS SUBJECT TO AN EXCEPTION IN THE CASE OF "PAUPERS."  IT IS
TRUE THAT SUPPORT FOR THIS CONTENTION MAY BE FOUND IN EARLY DECISIONS
OF THIS COURT.  IN CITY OF NEW YORK V. MILN, 11 PET. 102, AT 143, IT
WAS SAID THAT IT IS "AS COMPETENT AND AS NECESSARY FOR A STATE TO
PROVIDE PRECAUTIONARY MEASURES AGAINST THE MORAL PESTILENCE OF PAUPERS,
VAGABONDS, AND POSSIBLY CONVICTS, AS IT IS TO GUARD AGAINST THE
PHYSICAL PESTILENCE, WHICH MAY ARISE FROM UNSOUND AND INFECTIOUS
ARTICLES IMPORTED,  ...  "  THIS LANGUAGE HAS BEEN CASUALLY REPEATED IN
NUMEROUS LATER CASES UP TO THE TURN OF THE CENTURY.  SEE, E.G.,
PASSENGER CASES, 7 HOW.  283, 426 AND 466-467; RAILWAY COMPANY V.
HUSEN, 95 U.S. 465, 471; PLUMLEY V. MASSACHUSETTS, 155 U.S. 461, 478;
MISSOURI, K. & T. RY. CO. V. HABER, 169 U.S. 613, 629.  IN NONE OF
THESE CASES, HOWEVER, WAS THE POWER OF A STATE TO EXCLUDE "PAUPERS"
ACTUALLY INVOLVED. 

WHETHER AN ABLE-BODIED BUT UNEMPLOYED PERSON LIKE DUNCAN IS A
"PAUPER" WITHIN THE HISTORICAL MEANING OF THE TERM IS OPEN TO
CONSIDERABLE DOUBT.  SEE 53 HARVARD L. REV. 1031, 1032.  BUT ASSUMING
THAT THE TERM IS APPLICABLE TO HIM AND TO PERSONS SIMILARLY SITUATED,
WE DO NOT CONSIDER OURSELVES BOUND BY THE LANGUAGE REFERRED TO.  CITY
OF NEW YORK V. MILN WAS DECIDED IN 1837.  WHATEVER MAY HAVE BEEN THE
NOTION THEN PREVAILING, WE DO NOT THINK THAT IT WILL NOW BE SERIOUSLY
CONTENDED THAT BECAUSE A PERSON IS WITHOUT EMPLOYMENT AND WITHOUT FUNDS
HE CONSTITUTES A "MORAL PESTILENCE."  POVERTY AND IMMORALITY ARE NOT
SYNONYMOUS. 

WE ARE OF THE OPINION THAT SEC. 2615 IS NOT A VALID EXERCISE OF THE
POLICE POWER OF CALIFORNIA; THAT IT IMPOSES AN UNCONSTITUTIONAL BURDEN
UPON INTERSTATE COMMERCE, AND THAT THE CONVICTION UNDER IT CANNOT BE
SUSTAINED.  IN THE VIEW WE HAVE TAKEN IT IS UNNECESSARY TO DECIDE
WHETHER THE SECTION IS REPUGNANT TO OTHER PROVISIONS OF THE
CONSTITUTION.  REVERSED. 

FN1  GLOUCESTER FERRY CO. V. PENNSYLVANIA, 114 U.S. 196, 203; LEISY
V. HARDIN, 135 U.S. 100, 112; COVINGTON BRIDGE CO. V. KENTUCKY, 154
U.S. 204, 218; HOKE V. UNITED STATES, 227 U.S. 308, 320; CAMINETTI V.
UNITED STATES, 242 U.S. 470, 491; UNITED STATES V. HILL, 248 U.S. 420,
423; MITCHELL V. UNITED STATES, 313 U.S. 80.  CF.  THE FEDERAL
KIDNAPING ACT OF 1932, U.S.C., TITLE 18, SECS. 408A-408C.  IT IS
IMMATERIAL WHETHER OR NOT THE TRANSPORTATION IS COMMERCIAL IN
CHARACTER.  SEE CAMINETTI V. UNITED STATES, SUPRA. 

FN2  SEE HIRSCH, H. M., OUR SETTLEMENT LAWS (N.Y. DEPT. OF SOCIAL
WELFARE, 1933), PASSIM. 

MR. JUSTICE DOUGLAS, CONCURRING: 

I EXPRESS NO VIEW ON WHETHER OR NOT THE STATUTE HERE IN QUESTION RUNS
AFOUL OF ART. I, SEC. 8 OF THE CONSTITUTION GRANTING TO CONGRESS THE
POWER "TO REGULATE COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL
STATES."  BUT I AM OF THE OPINION THAT THE RIGHT OF PERSONS TO MOVE
FREELY FROM STATE TO STATE OCCUPIES A MORE PROTECTED POSITION IN OUR
CONSTITUTIONAL SYSTEM THAN DOES THE MOVEMENT OF CATTLE, FRUIT, STEEL
AND COAL ACROSS STATE LINES.  WHILE THE OPINION OF THE COURT EXPRESSES
NO VIEW ON THAT ISSUE, THE RIGHT INVOLVED IS SO FUNDAMENTAL THAT I DEEM
IT APPROPRIATE TO INDICATE THE REACH OF THE CONSTITUTIONAL QUESTION
WHICH IS PRESENT. 

THE RIGHT TO MOVE FREELY FROM STATE TO STATE IS AN INCIDENT OF
NATIONAL CITIZENSHIP PROTECTED BY THE PRIVILEGES AND IMMUNITIES CLAUSE
OF THE FOURTEENTH AMENDMENT AGAINST STATE INTERFERENCE.  MR. JUSTICE
MOODY IN TWINING V. NEW JERSEY, 211 U.S. 78, 97, STATED, "PRIVILEGES
AND IMMUNITIES OF CITIZENS OF THE UNITED STATES  ...  ARE ONLY SUCH AS
ARISE OUT OF THE NATURE AND ESSENTIAL CHARACTER OF THE NATIONAL
GOVERNMENT, OR ARE SPECIFICALLY GRANTED OR SECURED TO ALL CITIZENS OR
PERSONS BY THE CONSTITUTION OF THE UNITED STATES."  AND HE WENT ON TO
STATE THAT ONE OF THOSE RIGHTS OF NATIONAL CITIZENSHIP WAS "THE RIGHT
TO PASS FREELY FROM STATE TO STATE."  ID., P. 97.  NOW IT IS APPARENT
THAT THIS RIGHT IS NOT SPECIFICALLY GRANTED BY THE CONSTITUTION.  YET
BEFORE THE FOURTEENTH AMENDMENT IT WAS RECOGNIZED AS A RIGHT
FUNDAMENTAL TO THE NATIONAL CHARACTER OF OUR FEDERAL GOVERNMENT.  IT
WAS SO DECIDED IN 1867 BY CRANDALL V. NEVADA, 6 WALL.  35.  IN THAT
CASE THIS COURT STRUCK DOWN A NEVADA TAX "UPON EVERY PERSON LEAVING THE
STATE" BY COMMON CARRIER.  MR. JUSTICE MILLER WRITING FOR THE COURT
HELD THAT THE RIGHT TO MOVE FREELY THROUGHOUT THE NATION WAS A RIGHT OF
NATIONAL CITIZENSHIP.  THAT THE RIGHT WAS IMPLIED DID NOT MAKE IT ANY
THE LESS "GUARANTEED" BY THE CONSTITUTION.  ID., P. 47.  TO BE SURE, HE
EMPHASIZED THAT THE NEVADA STATUTE WOULD OBSTRUCT THE RIGHT OF A
CITIZEN TO TRAVEL TO THE SEAT OF HIS NATIONAL GOVERNMENT OR ITS OFFICES
THROUGHOUT THE COUNTRY.  AND SEE UNITED STATES V. WHEELER, 254 U.S.
281, 299.  BUT THERE IS NOT A SHRED OF EVIDENCE IN THE RECORD OF THE
CRANDALL CASE THAT THE PERSONS THERE INVOLVED WERE EN ROUTE ON ANY SUCH
MISSION ANY MORE THAN IT APPEARS IN THIS CASE THAT DUNCAN ENTERED
CALIFORNIA TO INTERVIEW SOME FEDERAL AGENCY.  THE POINT WHICH MR.
JUSTICE MILLER MADE WAS MERELY IN ILLUSTRATION OF THE DAMAGE AND HAVOC
WHICH WOULD ENSUE IF THE STATES HAD THE POWER TO PREVENT THE FREE
MOVEMENT OF CITIZENS FROM ONE STATE TO ANOTHER.  THIS IS EMPHASIZED BY
HIS QUOTATION FROM CHIEF JUSTICE TANEY'S DISSENTING OPINION IN THE
PASSENGER CASES, 7 HOW.  283, 492:  "WE ARE ALL CITIZENS OF THE UNITED
STATES; AND, AS MEMBERS OF THE SAME COMMUNITY, MUST HAVE THE RIGHT TO
PASS AND REPASS THROUGH EVERY PART OF IT WITHOUT INTERRUPTION, AS
FREELY AS IN OUR OWN STATES."  HENCE THE DICTUM IN UNITED STATES V.
WHEELER, SUPRA, P. 299, WHICH ATTEMPTS TO LIMIT THE CRANDALL CASE TO A
HOLDING THAT THE STATUTE IN QUESTION DIRECTLY BURDENED "THE PERFORMANCE
BY THE UNITED STATES OF ITS GOVERNMENTAL FUNCTIONS" AND LIMITED THE
"RIGHTS OF THE CITIZENS GROWING OUT OF SUCH FUNCTIONS," DOES NOT BEAR
ANALYSIS. 

SO, WHEN THE FOURTEENTH AMENDMENT WAS ADOPTED IN 1868, IT HAD BEEN
SQUARELY AND AUTHORITATIVELY SETTLED THAT THE RIGHT TO MOVE FREELY FROM
STATE TO STATE WAS A RIGHT OF NATIONAL CITIZENSHIP.  AS SUCH IT WAS
PROTECTED BY THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH
AMENDMENT AGAINST STATE INTERFERENCE.  SLAUGHTER HOUSE CASES, 16 WALL. 
36, 74, 79.  IN THE LATTER CASE MR. JUSTICE MILLER RECOGNIZED THAT IT
WAS SO "PROTECTED BY IMPLIED GUARANTEES" OF THE CONSTITUTION.  ID., P.
79.  THAT WAS ALSO ACKNOWLEDGED IN TWINING V. NEW JERSEY, SUPRA.  AND
CHIEF JUSTICE FULLER IN WILLIAMS V. FEARS, 179 U.S. 270, 274, STATED:
"UNDOUBTEDLY THE RIGHT OF LOCOMOTION, THE RIGHT TO REMOVE FROM ONE
PLACE TO ANOTHER ACCORDING TO INCLINATION, IS AN ATTRIBUTE OF PERSONAL
LIBERTY, AND THE RIGHT, ORDINARILY, OF FREE TRANSIT FROM OR THROUGH THE
TERRITORY OF ANY STATE IS A RIGHT SECURED BY THE FOURTEENTH AMENDMENT
AND BY OTHER PROVISIONS OF THE CONSTITUTION." 

IN THE FACE OF THIS HISTORY I CANNOT ACCEDE TO THE SUGGESTION (HELSON
& RANDOLPH V. KENTUCKY, 279 U.S. 245, 251; COLGATE V. HARVEY, 296 U.S.
404, 444) THAT THE COMMERCE CLAUSE IS THE APPROPRIATE EXPLANATION OF
CRANDALL V. NEVADA, SUPRA.  TWO OF THE JUSTICES IN THAT CASE EXPRESSLY
PUT THE DECISION ON THE COMMERCE CLAUSE; THE OTHERS PUT IT ON THE
BROADER GROUND OF RIGHTS OF NATIONAL CITIZENSHIP, MR. JUSTICE MILLER
STATING THAT "WE DO NOT CONCEDE THAT THE QUESTION BEFORE US IS TO BE
DETERMINED" BY THE COMMERCE CLAUSE.  ID., P. 43.  ON THAT BROADER
GROUND IT SHOULD CONTINUE TO REST. 

TO BE SURE, THERE ARE EXPRESSIONS IN THE CASES THAT THIS RIGHT OF
FREE MOVEMENT OF PERSONS IS AN INCIDENT OF STATE CITIZENSHIP PROTECTED
AGAINST DISCRIMINATORY STATE ACTION BY ART. IV, SEC. 2 OF THE
CONSTITUTION.  CORFIELD V. CORYELL, 4 WASH. C.C. 371, 381; PAUL V.
VIRGINIA, 8 WALL.  168, 180; WARD V. MARYLAND, 12 WALL.  418, 430;
UNITED STATES V. WHEELER, SUPRA, PP. 298-299.  UNDER THE DICTA OF THOSE
CASES THE STATUTE IN THE INSTANT CASE WOULD NOT SURVIVE, SINCE
CALIFORNIA IS CURTAILING ONLY THE FREE MOVEMENT OF INDIGENTS WHO ARE
NON-RESIDENTS OF THAT STATE.  BUT THE THRUST OF THE CRANDALL CASE IS
DEEPER.  MR. JUSTICE MILLER ADVERTED TO CORFIELD V. CORYELL, PAUL V.
VIRGINIA, AND WARD V. MARYLAND, WHEN HE STATED IN THE SLAUGHTER HOUSE
CASES THAT THE RIGHT PROTECTED BY THE CRANDALL CASE WAS A RIGHT OF
NATIONAL CITIZENSHIP ARISING FROM THE "IMPLIED GUARANTEES" OF THE
CONSTITUTION.  16 WALL.  AT PP. 75-79.  BUT HIS FAILURE TO CLASSIFY
THAT RIGHT AS ONE OF STATE CITIZENSHIP PROTECTED SOLELY BY ART. IV,
SEC. 2, UNDERSCORES HIS VIEW THAT THE FREE MOVEMENT OF PERSONS
THROUGHOUT THIS NATION WAS A RIGHT OF NATIONAL CITIZENSHIP.  IT
LIKEWISE EMPHASIZES THAT ART. IV, SEC. 2, WHATEVER ITS REACH, IS
PRIMARILY CONCERNED WITH THE INCIDENTS OF RESIDENCE (THE MATTER
INVOLVED IN UNITED STATES V. WHEELER, SUPRA) AND THE EXERCISE OF RIGHTS
WITHIN A STATE, SO THAT A CITIZEN OF ONE STATE IS NOT IN A "CONDITION
OF ALIENAGE WHEN HE IS WITHIN OR WHEN HE REMOVES TO ANOTHER STATE." 
BLAKE V. MCCLUNG, 172 U.S. 239, 256.  FURTHERMORE, ART. IV, SEC. 2,
CANNOT EXPLAIN THE CRANDALL DECISION.  THE STATUTE IN THAT CASE APPLIED
TO CITIZENS OF NEVADA AS WELL AS TO CITIZENS OF OTHER STATES.  THAT IS
TO SAY, NEVADA WAS NOT "DISCRIMINATING AGAINST CITIZENS OF OTHER STATES
IN FAVOR OF ITS OWN."  HAGUE V. COMMITTEE FOR INDUSTRIAL ORGANIZATION,
307 U.S. 496, 511 AND CASES CITED.  THUS IT IS PLAIN THAT THE RIGHT OF
FREE INGRESS AND EGRESS RISES TO A HIGHER CONSTITUTIONAL DIGNITY THAN
THAT AFFORDED BY STATE CITIZENSHIP. 

THE CONCLUSION THAT THE RIGHT OF FREE MOVEMENT IS A RIGHT OF NATIONAL
CITIZENSHIP STANDS ON FIRM HISTORICAL GROUND.  IF A STATE TAX ON THAT
MOVEMENT, AS IN THE CRANDALL CASE, IS INVALID, A FORTIORI A STATE
STATUTE WHICH OBSTRUCTS OR IN SUBSTANCE PREVENTS THAT MOVEMENT MUST
FALL.  THAT RESULT NECESSARILY FOLLOWS UNLESS PERCHANCE A STATE CAN
CURTAIL THE RIGHT OF FREE MOVEMENT OF THOSE WHO ARE POOR OR DESTITUTE. 
BUT TO ALLOW SUCH AN EXCEPTION TO BE ENGRAFTED ON THE RIGHTS OF
NATIONAL CITIZENSHIP WOULD BE TO CONTRAVENE EVERY CONCEPTION OF
NATIONAL UNITY.  IT WOULD ALSO INTRODUCE A CASTE SYSTEM UTTERLY
INCOMPATIBLE WITH THE SPIRIT OF OUR SYSTEM OF GOVERNMENT.  IT WOULD
PERMIT THOSE WHO WERE STIGMATIZED BY A STATE AS INDIGENTS, PAUPERS, OR
VAGABONDS TO BE RELEGATED TO AN INFERIOR CLASS OF CITIZENSHIP.  IT
WOULD PREVENT A CITIZEN BECAUSE HE WAS POOR FROM SEEKING NEW HORIZONS
IN OTHER STATES.  IT MIGHT THUS WITHHOLD FROM LARGE SEGMENTS OF OUR
PEOPLE THAT MOBILITY WHICH IS BASIC TO ANY GUARANTEE OF FREEDOM OF
OPPORTUNITY.  THE RESULT WOULD BE A SUBSTANTIAL DILUTION OF THE RIGHTS
OF NATIONAL CITIZENSHIP, A SERIOUS IMPAIRMENT OF THE PRINCIPLES OF
EQUALITY.  SINCE THE STATE STATUTE HERE CHALLENGED INVOLVES SUCH
CONSEQUENCES, IT RUNS AFOUL OF THE PRIVILEGES AND IMMUNITIES CLAUSE OF
THE FOURTEENTH AMENDMENT. 

MR. JUSTICE BLACK AND MR. JUSTICE MURPHY JOIN IN THIS OPINION. 

MR. JUSTICE JACKSON, CONCURRING: 

I CONCUR IN THE RESULT REACHED BY THE COURT, AND I AGREE THAT THE
GROUNDS OF ITS DECISION ARE PERMISSIBLE ONES UNDER APPLICABLE
AUTHORITIES.  BUT THE MIGRATIONS OF A HUMAN BEING, OF WHOM IT IS
CHARGED THAT HE POSSESSES NOTHING THAT CAN BE SOLD AND HAS NO
WHEREWITHAL TO BUY, DO NOT FIT EASILY INTO MY NOTIONS AS TO WHAT IS
COMMERCE.  TO HOLD THAT THE MEASURE OF HIS RIGHTS IS THE COMMERCE
CLAUSE IS LIKELY TO RESULT EVENTUALLY EITHER IN DISTORTING THE
COMMERCIAL LAW OR IN DENATURING HUMAN RIGHTS.  I TURN, THEREFORE, AWAY
FROM PRINCIPLES BY WHICH COMMERCE IS REGULATED TO THAT CLAUSE OF THE
CONSTITUTION BY VIRTUE OF WHICH DUNCAN IS A CITIZEN OF THE UNITED
STATES AND WHICH FORBIDS ANY STATE TO ABRIDGE HIS PRIVILEGES OR
IMMUNITIES AS SUCH. 

THIS CLAUSE WAS ADOPTED TO MAKE UNITED STATES CITIZENSHIP THE
DOMINANT AND PARAMOUNT ALLEGIANCE AMONG US.  THE RETURN WHICH THE LAW
HAD LONG ASSOCIATED WITH ALLEGIANCE WAS PROTECTION.  THE POWER OF
CITIZENSHIP AS A SHIELD AGAINST OPPRESSION WAS WIDELY KNOWN FROM THE
EXAMPLE OF PAUL'S ROMAN CITIZENSHIP, WHICH SENT THE CENTURION SCURRYING
TO HIS HIGHER-UPS WITH THE MESSAGE:  "TAKE HEED WHAT THOU DOEST:  FOR
THIS MAN IS A ROMAN."  I SUPPOSE NONE OF US DOUBTS THAT THE HOPE OF
IMPARTING TO AMERICAN CITIZENSHIP SOME OF THIS VITALITY WAS THE PURPOSE
OF DECLARING IN THE FOURTEENTH AMENDMENT:  "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
...  "    BUT THE HOPE PROCLAIMED IN SUCH GENERALITY SOON SHRIVELED IN
THE PROCESS OF JUDICIAL INTERPRETATION.  FOR NEARLY THREE-QUARTERS OF A
CENTURY THIS COURT REJECTED EVERY PLEA TO THE PRIVILEGES AND IMMUNITIES
CLAUSE.  THE JUDICIAL HISTORY OF THIS CLAUSE AND THE VERY REAL
DIFFICULTIES IN THE WAY OF ITS PRACTICAL APPLICATION TO SPECIFIC CASES
HAVE BEEN TOO WELL AND RECENTLY REVIEWED TO WARRANT REPETITION.  FN1 

WHILE INSTANCES OF VALID "PRIVILEGES OR IMMUNITIES" MUST BE BUT FEW,
I AM CONVINCED THAT THIS IS ONE.  I DO NOT IGNORE OR BELITTLE THE
DIFFICULTIES OF WHAT HAS BEEN CHARACTERIZED BY THIS COURT AS AN "ALMOST
FORGOTTEN" CLAUSE.  BUT THE DIFFICULTY OF THE TASK DOES NOT EXCUSE US
FROM GIVING THESE GENERAL AND ABSTRACT WORDS WHATEVER OF SPECIFIC
CONTENT AND CONCRETENESS THEY WILL BEAR AS WE MARK OUT THEIR
APPLICATION, CASE BY CASE.  THAT IS THE METHOD OF THE COMMON LAW, AND
IT HAS BEEN THE METHOD OF THIS COURT WITH OTHER NO LESS GENERAL
STATEMENTS IN OUR FUNDAMENTAL LAW.  THIS COURT HAS NOT BEEN TIMOROUS
ABOUT GIVING CONCRETE MEANING TO SUCH OBSCURE AND VAGRANT PHRASES AS
"DUE PROCESS," "GENERAL WELFARE," "EQUAL PROTECTION," OR EVEN "COMMERCE
AMONG THE SEVERAL STATES."  BUT IT HAS ALWAYS HESITATED TO GIVE ANY
REAL MEANING TO THE PRIVILEGES AND IMMUNITIES CLAUSE LEST IT
IMPROVIDENTLY GIVE TOO MUCH. 

THIS COURT SHOULD, HOWEVER, HOLD SQUARELY THAT IT IS A PRIVILEGE OF
CITIZENSHIP OF THE UNITED STATES, PROTECTED FROM STATE ABRIDGMENT, TO
ENTER ANY STATE OF THE UNION, EITHER FOR TEMPORARY SOJOURN OR FOR THE
ESTABLISHMENT OF PERMANENT RESIDENCE THEREIN AND FOR GAINING RESULTANT
CITIZENSHIP THEREOF.  IF NATIONAL CITIZENSHIP MEANS LESS THAN THIS, IT
MEANS NOTHING. 

THE LANGUAGE OF THE FOURTEENTH AMENDMENT DECLARING TWO KINDS OF
CITIZENSHIP IS DISCRIMINATING.  IT IS:  "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."  WHILE IT THUS ESTABLISHES NATIONAL CITIZENSHIP FROM THE
MERE CIRCUMSTANCE OF BIRTH WITHIN THE TERRITORY AND JURISDICTION OF THE
UNITED STATES, BIRTH WITHIN A STATE DOES NOT ESTABLISH CITIZENSHIP
THEREOF.  STATE CITIZENSHIP IS EPHEMERAL.  IT RESULTS ONLY FROM
RESIDENCE AND IS GAINED OR LOST THEREWITH.  THAT CHOICE OF RESIDENCE
WAS SUBJECT TO LOCAL APPROVAL IS CONTRARY TO THE INESCAPABLE
IMPLICATIONS OF THE WESTWARD MOVEMENT OF OUR CIVILIZATION. 

EVEN AS TO AN ALIEN WHO HAD "BEEN ADMITTED TO THE UNITED STATES UNDER
THE FEDERAL LAW," THIS COURT, THROUGH MR. JUSTICE HUGHES, DECLARED THAT
"HE WAS THUS ADMITTED WITH THE PRIVILEGE OF ENTERING AND ABIDING IN THE
UNITED STATES, AND HENCE OF ENTERING AND ABIDING IN ANY STATE IN THE
UNION."  TRUAX V. RAICH, 239 U.S. 33, 39.  WHY WE SHOULD HESITATE TO
HOLD THAT FEDERAL CITIZENSHIP IMPLIES RIGHTS TO ENTER AND ABIDE IN ANY
STATE OF THE UNION AT LEAST EQUAL TO THOSE POSSESSED BY ALIENS PASSES
MY UNDERSTANDING.  THE WORLD IS EVEN MORE UPSIDE DOWN THAN I HAD
SUPPOSED IT TO BE, IF CALIFORNIA MUST ACCEPT ALIENS IN DEFERENCE TO
THEIR FEDERAL PRIVILEGES BUT IS FREE TO TURN BACK CITIZENS OF THE
UNITED STATES UNLESS WE TREAT THEM AS SUBJECTS OF COMMERCE. 

THE RIGHT OF THE CITIZEN TO MIGRATE FROM STATE TO STATE WHICH, I
AGREE WITH MR. JUSTICE DOUGLAS, IS SHOWN BY OUR PRECEDENTS TO BE ONE OF
NATIONAL CITIZENSHIP, IS NOT, HOWEVER, AN UNLIMITED ONE.  IN ADDITION
TO BEING SUBJECT TO ALL CONSTITUTIONAL LIMITATIONS IMPOSED BY THE
FEDERAL GOVERNMENT, SUCH CITIZEN IS SUBJECT TO SOME CONTROL BY STATE
GOVERNMENTS.  HE MAY NOT, IF A FUGITIVE FROM JUSTICE, CLAIM FREEDOM TO
MIGRATE UNMOLESTED, NOR MAY HE ENDANGER OTHERS BY CARRYING CONTAGION
ABOUT.  THESE CAUSES, AND PERHAPS OTHERS THAT DO NOT OCCUR TO ME NOW,
WARRANT ANY PUBLIC AUTHORITY IN STOPPING A MAN WHERE IT FINDS HIM AND
ARRESTING HIS PROGRESS ACROSS A STATE LINE QUITE AS MUCH AS FROM PLACE
TO PLACE WITHIN THE STATE. 

IT IS HERE THAT WE MEET THE REAL CRUX OF THIS CASE.  DOES "INDIGENCE"
AS DEFINED BY THE APPLICATION OF THE CALIFORNIA STATUTE CONSTITUTE A
BASIS FOR RESTRICTING THE FREEDOM OF A CITIZEN, AS CRIME OR CONTAGION
WARRANTS ITS RESTRICTION?  WE SHOULD SAY NOW, AND IN NO UNCERTAIN
TERMS, THAT A MAN'S MERE PROPERTY STATUS, WITHOUT MORE, CANNOT BE USED
BY A STATE TO TEST, QUALIFY, OR LIMIT HIS RIGHTS AS A CITIZEN OF THE
UNITED STATES.  "INDIGENCE" IN ITSELF IS NEITHER A SOURCE OF RIGHTS NOR
A BASIS FOR DENYING THEM.  THE MERE STATE OF BEING WITHOUT FUNDS IS A
NEUTRAL FACT - CONSTITUTIONALLY AN IRRELEVANCE, LIKE RACE, CREED, OR
COLOR.  I AGREE WITH WHAT I UNDERSTAND TO BE THE HOLDING OF THE COURT
THAT CASES WHICH MAY INDICATE THE CONTRARY ARE OVERRULED. 

ANY MEASURE WHICH WOULD DIVIDE OUR CITIZENRY ON THE BASIS OF PROPERTY
INTO ONE CLASS FREE TO MOVE FROM STATE TO STATE AND ANOTHER CLASS THAT
IS POVERTY-BOUND TO THE PLACE WHERE IT HAS SUFFERED MISFORTUNE IS NOT
ONLY AT WAR WITH THE HABIT AND CUSTOM BY WHICH OUR COUNTRY HAS
EXPANDED, BUT IS ALSO A SHORT-SIGHTED BLOW AT THE SECURITY OF PROPERTY
ITSELF.  PROPERTY CAN HAVE NO MORE DANGEROUS, EVEN IF UNWITTING, ENEMY
THAN ONE WHO WOULD MAKE ITS POSSESSION A PRETEXT FOR UNEQUAL OR
EXCLUSIVE CIVIL RIGHTS.  WHERE THOSE RIGHTS ARE DERIVED FROM NATIONAL
CITIZENSHIP NO STATE MAY IMPOSE SUCH A TEST, AND WHETHER THE CONGRESS
COULD DO SO WE ARE NOT CALLED UPON TO INQUIRE. 

I THINK CALIFORNIA HAD NO RIGHT TO MAKE THE CONDITION OF DUNCAN'S
PURSE, WITH NO EVIDENCE OF VIOLATION BY HIM OF ANY LAW OR SOCIAL POLICY
WHICH CAUSED IT, THE BASIS OF EXCLUDING HIM OR OF PUNISHING ONE WHO
EXTENDED HIM AID. 

IF I DOUBTED WHETHER HIS FEDERAL CITIZENSHIP ALONE WERE ENOUGH TO
OPEN THE GATES OF CALIFORNIA TO DUNCAN, MY DOUBT WOULD DISAPPEAR ON
CONSIDERATION OF THE OBLIGATIONS OF SUCH CITIZENSHIP.  DUNCAN OWES A
DUTY TO RENDER MILITARY SERVICE, AND THIS COURT HAS SAID THAT THIS DUTY
IS THE RESULT OF HIS CITIZENSHIP.  MR. CHIEF JUSTICE WHITE DECLARED IN
THE SELECTIVE DRAFT LAW CASES, 245 U.S. 366, 378:  "IT MAY NOT BE
DOUBTED THAT THE VERY CONCEPTION OF A JUST GOVERNMENT AND ITS DUTY TO
THE CITIZEN INCLUDES THE RECIPROCAL OBLIGATION OF THE CITIZEN TO RENDER
MILITARY SERVICE IN CASE OF NEED AND THE RIGHT TO COMPEL IT."  A
CONTENTION THAT A CITIZEN'S DUTY TO RENDER MILITARY SERVICE IS
SUSPENDED BY "INDIGENCE" WOULD MEET WITH LITTLE FAVOR.  RICH OR
PENNILESS, DUNCAN'S CITIZENSHIP UNDER THE CONSTITUTION PLEDGES HIS
STRENGTH TO THE DEFENSE OF CALIFORNIA AS A PART OF THE UNITED STATES,
AND HIS RIGHT TO MIGRATE TO ANY PART OF THE LAND HE MUST DEFEND IS
SOMETHING SHE MUST RESPECT UNDER THE SAME INSTRUMENT.  UNLESS THIS
COURT IS WILLING TO SAY THAT CITIZENSHIP OF THE UNITED STATES MEANS AT
LEAST THIS MUCH TO THE CITIZEN, THEN OUR HERITAGE OF CONSTITUTIONAL
PRIVILEGES AND IMMUNITIES IS ONLY A PROMISE TO THE EAR TO BE BROKEN TO
THE HOPE, A TEASING ILLUSION LIKE A MUNIFICENT BEQUEST IN A PAUPER'S
WILL. 

FN1  SEE DISSENTING OPINION OF MR. JUSTICE STONE IN COLGATE V.
HARVEY, 296 U.S. 404, 436, ET SEQ.
..END :







COMMERCIAL CORP. V. N.Y. BARGE CORP., 314 U.S. 104 


NO. 14.  REARGUED OCTOBER 16, 1941.  - DECIDED NOVEMBER 17, 1941.  - 114
F.2D 248, AFFIRMED. 


1.  IN THE CASE OF AN UNEXPLAINED SINKING OF A VESSEL UNDER
CIRCUMSTANCES WHICH MAY GIVE RISE TO AN INFERENCE OF UNSEAWORTHINESS,
THE PARTY ON WHOM THE BURDEN OF PROOF RESTS MUST DO MORE THAN MAKE A
CASE UPON THE WHOLE EVIDENCE SO EVENLY BALANCED THAT THE TRIER OF FACT
IS UNABLE TO RESOLVE DOUBTS AS TO THE VALIDITY OF THE INFERENCE.  PP.
105, 114. 

2.  WHERE THE OWNER OF A VESSEL HAS NOT ASSUMED THE COMMON CARRIER'S
SPECIAL UNDERTAKING TO DELIVER THE CARGO SAFELY, THE BURDEN OF PROVING
A BREACH OF THE SHIPOWNER'S DUTY TO FURNISH A SEAWORTHY VESSEL RESTS
UPON THE BAILOR.  P. 110. 

3.  THE BURDEN OF PROOF IN SUCH A CASE DOES NOT SHIFT WITH THE
EVIDENCE, BUT REMAINS WITH THE BAILOR, WHO MUST PROVE HIS CASE BY A
PREPONDERANCE OF ALL THE EVIDENCE.  P. 110. 

COMMERCIAL MOLASSES CORP. V. NEW YORK TANK BARGE CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

THIS CASE CAME HERE ON CERTIORARI, 311 U.S. 643, TO REVIEW THE
AFFIRMANCE OF A JUDGMENT DISMISSING PETITIONER'S CLAIM IN A PROCEEDING
IN ADMIRALTY BROUGHT ORIGINALLY BY THE RESPONDENT FOR A LIMITATION OF
LIABILITY.  THE JUDGMENT WAS AFFIRMED HERE BY AN EQUALLY DIVIDED COURT,
313 U.S. 541; SUBSEQUENTLY, A PETITION FOR REHEARING WAS GRANTED, THE
JUDGMENT WAS VACATED, AND THE CASE WAS RESTORED TO THE DOCKET FOR
REARGUMENT, 313 U.S. 596. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING IN ADMIRALTY ORIGINATING IN THE DISTRICT COURT
UPON A PETITION BY RESPONDENT, AS CHARTERED OWNER OF THE TANK BARGE
"T.N. NO. 73," FOR LIMITATION OF LIABILITY FOR DAMAGE TO PETITIONER'S
SHIPMENT OF MOLASSES RESULTING FROM THE SINKING OF THE BARGE IN NEW
YORK HARBOR. 

PETITIONER, THE SOLE CLAIMANT IN THE LIMITATION PROCEEDING, FILED, IN
BEHALF OF THE INSURER, ITS CLAIM FOR LOSS OF THE MOLASSES ON THE BARGE,
WHICH SANK ON OCT. 23, 1937, WHILE TAKING ON THE SHIPMENT FROM THE S.S.
"ALTHELSULTAN."  THE BARGE SANK IN SMOOTH WATER, WITHOUT CONTACT WITH
ANY OTHER VESSEL OR EXTERNAL OBJECT TO ACCOUNT FOR THE SINKING.  BY THE
CONTRACT OF AFFREIGHTMENT WITH PETITIONER'S PREDECESSOR IN INTEREST,
EXTENDED TO COVER THE YEAR 1937, RESPONDENT UNDERTOOK TO TRANSPORT THE
MOLASSES BY BARGES IN NEW YORK HARBOR FROM VESSELS OR TIDEWATER
REFINERIES TO THE SHIPPER'S CUSTOMERS; AND AGREED THAT THE BARGES ARE
"TIGHT, STAUNCH, STRONG AND IN EVERY WAY FITTED FOR THE CARRIAGE OF
MOLASSES WITHIN THE LIMITS ABOVE MENTIONED AND (RESPONDENT) WILL
MAINTAIN THE BARGES IN SUCH CONDITION DURING THE LIFE OF THIS
CONTRACT."  THE CONTRACT ALSO CONTAINED AN UNDERTAKING ON THE PART OF
THE SHIPPER OF THE MOLASSES TO EFFECT INSURANCE ON CARGOES FOR THE
ACCOUNT OF RESPONDENT, THE BREACH OF WHICH, IT IS CONTENDED, OPERATED
TO RELIEVE RESPONDENT FROM LIABILITY FOR ANY UNSEAWORTHINESS OF THE
BARGE. 

THE "T.N. NO. 73" WAS A STEEL TANK BARGE WITH FOUR CARGO TANKS, TWO
FORWARD AND TWO AFT, SEPARATED BY BULKHEADS, ONE EXTENDING FORE AND AFT
AND THE OTHER ATHWARTSHIP.  IT HAD A RAKE FORE AND AFT BEGINNING 23
INCHES BELOW THE DECK, AFFORDING SPACE FOR FORE AND AFT PEAK TANKS. 
THE CUSTOMARY METHOD OF STOWING THE BARGE WAS TO PUMP THE MOLASSES INTO
THE FORWARD TANKS UNTIL THE BARGE HAD A SPECIFIED FREEBOARD, THEN INTO
THE STERN TANKS UNTIL THE STERN HAD ANOTHER SPECIFIED FREEBOARD, THEN
BACK INTO THE FORWARD TANKS UNTIL THE BARGE WAS TRIMMED FORE AND AFT. 

IN THE CASE OF THE PRESENT SHIPMENT, THE CUSTOMARY PROCEDURE WAS
FOLLOWED AND THE MOLASSES WAS FIRST PUMPED INTO THE FORWARD AND THEN
INTO THE AFTER TANKS AT A RATE OF FROM 3 TO 3 1/2 TONS A MINUTE.  WHEN
THE STERN HAD APPROXIMATELY THE DESIRED FREEBOARD THE MATE OF THE BARGE
WENT FORWARD TO OPEN THE VALVES OF THE DISCHARGE PIPES CONNECTING WITH
THE FORWARD TANKS SO AS TO FILL THEM SUFFICIENTLY TO TRIM THE BARGE
FORE AND AFT.  ON HIS WAY HE STOPPED FOR A SHORT TIME, THE LENGTH OF
WHICH WAS NOT PRECISELY FIXED, TO CARRY ON A CONVERSATION WITH SOME OF
THE MEN ON THE VESSEL LYING ALONGSIDE.  WHEN HE REACHED THE VALVES FOR
THE FORWARD TANKS AND BEFORE THE VALVES FOR THE AFTER TANKS HAD BEEN
CLOSED, THE BARGE SANK BY THE STERN.  ONLY A SMALL PART OF THE MOLASSES
WAS SAVED, AND THE VALUE OF THAT LOST LARGELY EXCEEDED THE VALUE OF THE
BARGE AFTER SALVAGE OPERATIONS. 

RESPONDENT ATTRIBUTED THE SINKING TO OVERLOADING OF THE AFTER TANKS
RESULTING FROM THE MATE'S DELAY IN SHIFTING THE FLOW OF THE MOLASSES
FROM THE STERN TO THE FORWARD TANKS.  IF, AS ALLEGED, OVER-FILLING OF
THE STERN TANKS CAUSED THE LOSS WITHOUT THE PRIVITY OR KNOWLEDGE OF
RESPONDENT, IT COULD LIMIT LIABILITY.  R.S. SEC. 4283, 46 U.S.C. SEC.
183; LA BOURGOGNE, 210 U.S. 95, 122; THE GEORGE W. PRATT, 76 F.2D 902. 
BUT IT WAS UNNECESSARY TO DECIDE ANY QUESTION OF LIMITING LIABILITY
UNLESS PETITIONER, THE SOLE CLAIMANT, SUCCEEDED IN ESTABLISHING ITS
CLAIM. 

ON THE ISSUES THUS PRESENTED THE DISTRICT COURT HEARD A GREAT DEAL OF
TESTIMONY BY WITNESSES WHO TESTIFIED TO ALL THE CIRCUMSTANCES ATTENDING
THE LOADING AND SINKING OF THE BARGE, AND BY EXPERTS AS TO ITS
THEORETICAL LOAD CAPACITY AND THE PROBABLE DISPOSITION OF ITS LOAD AT
THE TIME THE BARGE SANK.  THERE WAS ALSO MUCH EVIDENCE BEARING ON THE
SEAWORTHINESS OF THE VESSEL.  THIS INCLUDED THE TESTIMONY OF A
REPRESENTATIVE OF THE CARGO INTERESTS WHO HAD INSPECTED THE BARGE JUST
BEFORE SHE BEGAN TO RECEIVE THE MOLASSES AND HAD FOUND THE TANKS DRY
AND CLEAN, AND WHO ADMITTED HE HAD FOUND NO EVIDENCE OF LEAKAGE.  THERE
WAS ALSO TESTIMONY BY A DIVER WHO HAD EXAMINED THE BARGE WHILE SHE WAS
ON THE BOTTOM, AND OF OTHERS WHO HAD EXAMINED HER CONDITION AFTER SHE
HAD BEEN RAISED AND PLACED IN DRY DOCK. 

AFTER A CAREFUL REVIEW OF ALL THE EVIDENCE, THE TRIAL JUDGE FOUND
THAT IT WAS NOT SUFFICIENT TO ESTABLISH THE FACT THAT THE SINKING WAS
CAUSED BY OVERLOADING THE AFTER TANKS.  HE ALSO FOUND AS A FACT THAT
UPON ALL THE EVIDENCE "THE CAUSE OF THE ACCIDENT HAS BEEN LEFT IN
DOUBT."  FROM ALL THIS HE CONCLUDED THAT RESPONDENT WAS CHARGEABLE UPON
ITS WARRANTY OF SEAWORTHINESS BY REASON OF THE "PRESUMPTION" OF
UNSEAWORTHINESS ARISING FROM THE UNEXPLAINED SINKING OF THE BARGE,
WHICH WOULD DEPRIVE THE OWNER OF THE RIGHT TO LIMIT LIABILITY.  BUT, AS
HE THOUGHT THE INSURANCE CLAUSE IN THE CONTRACT OF AFFREIGHTMENT
REQUIRED PETITIONER TO EFFECT CARGO INSURANCE FOR ACCOUNT OF
RESPONDENT, WHICH IT HAD FAILED TO DO, HE DISMISSED PETITIONER'S
CLAIM.  1939 A.M.C. 673. 

THE COURT OF APPEALS AFFIRMED, 114 F.2D 248, BUT FOR A DIFFERENT
REASON THAN THAT ASSIGNED BY THE TRIAL JUDGE FOR HIS DECISION.  IT HELD
THAT THE BURDEN WAS ON PETITIONER TO PROVE THAT RESPONDENT HAD
FURNISHED AN UNSEAWORTHY BARGE.  THE COURT SUSTAINED THE TRIAL COURT'S
FINDING, WHICH IT INTERPRETED AS MEANING "THAT THE EVIDENCE AS TO
WHETHER OR NOT THE BARGE SANK BECAUSE OF UNSEAWORTHINESS WAS SO EVENLY
MATCHED THAT THE JUDGE COULD COME TO NO CONCLUSION UPON THE ISSUE." 
BUT IT HELD THAT THE "PRESUMPTION OF UNSEAWORTHINESS," WHICH WOULD
ARISE FROM THE EVIDENCE OF THE SINKING OF THE BARGE IN SMOOTH WATER
WITHOUT ANY OTHER APPARENT OR PROBABLE CAUSE, DID NOT SURVIVE THE
FURTHER PROOF WHICH LEFT IN DOUBT THE ISSUE OF THE CAUSE OF THE LOSS. 
THE COURT ACCORDINGLY HELD THAT PETITIONER HAD NOT SUSTAINED ITS
BURDEN.  IT THUS BECAME UNNECESSARY TO CONSIDER WHAT BURDEN WOULD REST
ON THE BARGE OWNER IF HE WERE SEEKING TO LIMIT LIABILITY ON AN
ADMITTEDLY VALID CLAIM.  WE GRANTED CERTIORARI, 311 U.S. 643, TO
RESOLVE AN ALLEGED CONFLICT OF THE DECISION BELOW WITH THOSE OF OTHER
CIRCUIT COURTS OF APPEALS.  PACIFIC COAST S.S. CO. V. BANCROFT-WHITNEY
CO., 94 F. 180; THE JOHN TWOHY, 279 F. 343; LOVELAND CO. V. BETHLEHEM
STEEL CO., 33 F.2D 655; GARDNER V. DANTZLER LUMBER & EXPORT CO., 98
F.2D 478; CF. THE EDWIN I. MORRISON, 153 U.S. 199, AND BECAUSE OF THE
IMPORTANCE IN THE MARITIME LAW OF THE PRINCIPLE INVOLVED. 

WITH RESPECT TO THE BURDEN OF PROOF, THIS CASE IS TO BE DISTINGUISHED
FROM THOSE IN WHICH THE BURDEN OF PROVING SEAWORTHINESS RESTS UPON THE
VESSEL WHEN IT IS A COMMON CARRIER OR HAS ASSUMED THE OBLIGATION OF A
COMMON CARRIER.  THE PRESENT CONTRACT OF AFFREIGHTMENT WAS FOR PRIVATE
CARRIAGE IN NEW YORK HARBOR:  THE FRI, 154 F. 333; THE G. R. CROWE, 294
F. 506; THE WILDENFELS, 161 F. 864; THE C. R. SHEFFER, 249 F. 600; THE
LYRA, 255 F. 667; THE NORDHVALEN, 6 F.2D 883, AND THUS GAVE TO
RESPONDENT THE STATUS OF A BAILEE FOR HIRE OF THE MOLASSES.  SOUTHERN
RY. CO. V. PRESCOTT, 240 U.S. 632, 640; KOHLSAAT V. PARKERSBURG & M.
SAND CO., 266 F. 283; ALPINE FORWARDING CO. V. PENNSYLVANIA RAILROAD
CO., 60 F.2D 734; GERHARD & HEY, INC. V. CATTARAUGUS T. CO., 241 N.Y.
413, 150 N.E. 500.  CF. THE NORDHVALEN, SUPRA, 887.  HENCE, WE ARE NOT
CONCERNED WITH THE RULE THAT ONE WHO HAS ASSUMED THE OBLIGATION OF A
COMMON CARRIER CAN RELIEVE HIMSELF OF LIABILITY FOR FAILING TO CARRY
SAFELY ONLY BY SHOWING THAT THE CAUSE OF LOSS WAS WITHIN ONE OF THE
NARROWLY RESTRICTED EXCEPTIONS WHICH THE LAW ITSELF ANNEXES TO HIS
UNDERTAKING, OR FOR WHICH IT PERMITS HIM TO STIPULATE.  THE BURDEN
RESTS UPON HIM TO SHOW THAT THE LOSS WAS DUE TO AN EXCEPTED CAUSE AND
THAT HE HAS EXERCISED DUE CARE TO AVOID IT, NOT IN CONSEQUENCE OF HIS
BEING AN ORDINARY "BAILEE" BUT BECAUSE HE IS A SPECIAL TYPE OF BAILEE
WHO HAS ASSUMED THE OBLIGATION OF AN INSURER.  SCHNELL V. THE
VALLESCURA, 293 U.S. 296, 304, AND CASES CITED.  SEE COGGS V. BERNARD,
2 LD. RAYM.  909, 918. 

FOR THIS REASON, THE SHIPOWNER, IN ORDER TO BRING HIMSELF WITHIN A
PERMITTED EXCEPTION TO THE OBLIGATION TO CARRY SAFELY, WHETHER IMPOSED
BY STATUTE OR BECAUSE HE IS A COMMON CARRIER OR BECAUSE HE HAS ASSUMED
IT BY CONTRACT, MUST SHOW THAT THE LOSS WAS DUE TO AN EXCEPTED CAUSE
AND NOT TO BREACH OF HIS DUTY TO FURNISH A SEAWORTHY VESSEL.  THE EDWIN
I. MORRISON, SUPRA, 211; THE MAJESTIC, 166 U.S. 375; SCHNELL V. THE
VALLESCURA, SUPRA; THE BEECHE DENE, 55 F. 525.  CF. 39 STAT. 539, 49
U.S.C. SEC. 88; UNIFORM BILL OF LADING ACT, SEC. 12.  SEE IX WIGMORE ON
EVIDENCE (3RD ED.)  SEC.  2508 AND CASES CITED.  AND IN THAT CASE,
SINCE THE BURDEN IS ON THE SHIPOWNER, HE DOES NOT SUSTAIN IT, AND THE
SHIPPER MUST PREVAIL IF, UPON THE WHOLE EVIDENCE, IT REMAINS DOUBTFUL
WHETHER THE LOSS IS WITHIN THE EXCEPTION.  THE FOLMINA, 212 U.S. 354,
363; SCHNELL V. THE VALLESCURA, SUPRA, 306, 307.  A SIMILAR RULE IS
APPLIED UNDER THE HARTER ACT, WHICH GIVES TO THE OWNER AN EXCUSE FOR
UNSEAWORTHINESS, IF HE HAS EXERCISED DUE CARE TO MAKE HIS VESSEL
SEAWORTHY, FOR THERE THE BURDEN RESTS UPON HIM TO SHOW THAT HE HAS
EXERCISED SUCH CARE.  THE WILDCROFT, 201 U.S. 378; THE SOUTHWARK, 191
U.S. 1, 12; MAY V. HAMBURG-AMERIKANISCHE GESELLSCHAFT, 290 U.S. 333,
346. 

BUT, AS THE COURT BELOW HELD, THE BAILEE OF GOODS WHO HAS NOT ASSUMED
A COMMON CARRIER'S OBLIGATION IS NOT AN INSURER.  HIS UNDERTAKING IS TO
EXERCISE DUE CARE IN THE PROTECTION OF THE GOODS COMMITTED TO HIS CARE
AND TO PERFORM THE OBLIGATION OF HIS CONTRACT INCLUDING THE WARRANTY OF
SEAWORTHINESS WHEN HE IS A SHIPOWNER.  IN SUCH A CASE THE BURDEN OF
PROVING THE BREACH OF DUTY OR OBLIGATION RESTS UPON HIM WHO MUST ASSERT
IT AS THE GROUND OF THE RECOVERY WHICH HE SEEKS, SOUTHERN RY. CO. V.
PRESCOTT, SUPRA; KOHLSAAT V. PARKERSBURG & M. SAND CO., SUPRA; THE
TRANSIT, 250 F. 71, 72, 75; THE NORDHVALEN, SUPRA; DELAWARE DREDGING
CO. V. GRAHAM, 43 F.2D 852, 854; ALPINE FORWARDING CO. V. PENNSYLVANIA
R. CO., SUPRA, 736; GERHARD & HEY, INC. V. CATTARAUGUS & CO., SUPRA;
STORY ON BAILMENTS (8TH ED.)  SECS.  501, 504, 410, 410A; WIGMORE, OP.
CIT., SUPRA, SEC. 2508 AND CASED CITED, AS IT DID UPON PETITIONER HERE
WHEN IT ALLEGED THE BREACH OF WARRANTY AS THE BASIS OF ITS CLAIM. 
PETITIONER APPARENTLY DOES NOT CHALLENGE THE DISTINCTION WHICH FOR MORE
THAN TWO CENTURIES, SINCE COGGS V. BERNARD, SUPRA, HAS BEEN TAKEN
BETWEEN COMMON CARRIERS AND THOSE WHOM THE LAW LEAVES FREE TO REGULATE
THEIR MUTUAL RIGHTS AND OBLIGATIONS BY PRIVATE ARRANGEMENTS SUITED TO
THE SPECIAL CIRCUMSTANCES OF CASES LIKE THE PRESENT.  NOR DO WE SEE ANY
ADEQUATE GROUNDS FOR DEPARTING FROM IT NOW OR FOR DRAWING DISTINCTIONS
BETWEEN A PRIVATE BAILMENT OF MERCHANDISE ON A BARGE IN NEW YORK HARBOR
AND OF GOODS STORED IN A PRIVATE WAREHOUSE ON THE DOCKS.  NEITHER
BAILEE IS AN INSURER OF DELIVERY OF THE MERCHANDISE; BOTH ARE FREE TO
STIPULATE FOR SUCH INSURANCE OR FOR ANY LESSER OBLIGATION, IN WHICH
CASE THE BAILOR CANNOT RECOVER WITHOUT PROOF OF ITS BREACH. 

THE BURDEN OF PROOF IN A LITIGATION, WHEREVER THE LAW HAS PLACED IT,
DOES NOT SHIFT WITH THE EVIDENCE, AND IN DETERMINING WHETHER PETITIONER
HAS SUSTAINED THE BURDEN THE QUESTION OFTEN IS, AS IN THIS CASE, WHAT
INFERENCES OF FACT HE MAY SUMMON TO HIS AID.  IN ANSWERING IT IN THIS,
AS IN OTHERS WHERE BREACH OF DUTY IS THE ISSUE, THE LAW TAKES INTO
ACCOUNT THE RELATIVE OPPORTUNITY OF THE PARTIES TO KNOW THE FACT IN
ISSUE AND TO ACCOUNT FOR THE LOSS WHICH IT IS ALLEGED IS DUE TO THE
BREACH.  SINCE THE BAILEE IN GENERAL IS IN A BETTER POSITION THAN THE
BAILOR TO KNOW THE CAUSE OF THE LOSS AND TO SHOW THAT IT WAS ONE NOT
INVOLVING THE BAILEE'S LIABILITY, THE LAW LAYS ON HIM THE DUTY TO COME
FORWARD WITH THE INFORMATION AVAILABLE TO HIM.  THE NORTHERN BELLE, 9
WALL.  526, 529; GULF, C. & S.F. RY. CO. V. ELLIS, 54 F. 481, 483;
PACIFIC COAST S.S. CO. V. BANCROFT-WHITNEY CO., 94 F. 180; THE
NORDHVALEN, SUPRA, 886.  IF THE BAILEE FAILS, IT LEAVES THE TRIER OF
FACT FREE TO DRAW AN INFERENCE UNFAVORABLE TO HIM UPON THE BAILOR'S
ESTABLISHING THE UNEXPLAINED FAILURE TO DELIVER THE GOODS SAFELY. 
SOUTHERN RY. CO. V. PRESCOTT, SUPRA; CF. THE AMERICA, 174 F. 724. 

WHETHER WE LABEL THIS PERMISSIBLE INFERENCE WITH THE EQUIVOCAL TERM
"PRESUMPTION" OR CONSIDER MERELY THAT IT IS A RATIONAL INFERENCE FROM
THE FACTS PROVEN, IT DOES NO MORE THAN REQUIRE THE BAILEE, IF HE WOULD
AVOID THE INFERENCE, TO GO FORWARD WITH EVIDENCE SUFFICIENT TO PERSUADE
THAT THE NON-EXISTENCE OF THE FACT, WHICH WOULD OTHERWISE BE INFERRED,
IS AS PROBABLE AS ITS EXISTENCE.  IT DOES NOT CAUSE THE BURDEN OF PROOF
TO SHIFT, AND IF THE BAILEE DOES GO FORWARD WITH EVIDENCE ENOUGH TO
RAISE DOUBTS AS TO THE VALIDITY OF THE INFERENCE, WHICH THE TRIER OF
FACT IS UNABLE TO RESOLVE, THE BAILOR DOES NOT SUSTAIN THE BURDEN OF
PERSUASION WHICH UPON THE WHOLE EVIDENCE REMAINS UPON HIM, WHERE IT
RESTED AT THE START.  SOUTHERN RY. CO. V. PRESCOTT, SUPRA; KOHLSAAT V.
PARKERSBURG & M. SAND CO., SUPRA; TOMKINS COVE STONE CO. V. BLEAKLEY
CO., 40 F.2D 249; PICKUP V. THAMES INSURANCE CO., 3 Q.B.D. 594.  CF.
DEL VECCHIO V. BOWERS, 296 U.S. 280; WIGMORE, OP. CIT., SUPRA, SECS.
2485, 2490, 2491, AND CASES CITED.    PROOF OF THE BREACH OF WARRANTY
OF SEAWORTHINESS STANDS ON NO DIFFERENT FOOTING.  THE TRIER OF FACT MAY
IN MANY SITUATIONS INFER THE BREACH FROM THE UNEXPLAINED CIRCUMSTANCE
THAT THE VESSEL, WHETHER A COMMON OR PRIVATE CARRIER, SANK IN SMOOTH
WATER.  SEE THE EDWIN I. MORRISON, SUPRA; WORK V. LEATHERS, 97 U.S.
379, 380; THE HARPER NO. 145, 42 F.2D 161; THE JUNGSHOVED, 290 F. 733;
BARNEWALL V. CHURCH, 1 CAINES 217, 234; WALSH V. WASHINGTON MARINE
INSURANCE CO., 32 N.Y. 427, 436; ZILLAH TRANSPORTATION CO. V. AETNA
INS. CO., 175 MINN. 398, 221 N.W. 529; AND CASES CITED BELOW, 114 F.2D
248, 251; SCRUTTON ON CHARTER PARTIES AND BILLS OF LADING (14TH ED.) 
105.  WHETHER IN SUCH CIRCUMSTANCES THE VESSEL HAS THE STATUS OF A
PRIVATE BAILEE IS OF SIGNIFICANCE ONLY IN DETERMINING WHOSE IS THE
BURDEN OF PERSUASION.  WHEREVER THE BURDEN RESTS, HE WHO UNDERTAKES TO
CARRY IT MUST DO MORE THAN CREATE A DOUBT WHICH THE TRIER OF FACT IS
UNABLE TO RESOLVE.  THE EDWIN I. MORRISON, SUPRA, 212; THE FOLMINA,
SUPRA, 363; SCHNELL V. THE VALLESCURA, SUPRA.  THE ENGLISH COURTS,
AFTER SOME OBSCURITY OF TREATMENT, SEE WATSON V. CLARK, 1 DOW 336, HAVE
REACHED THE SAME CONCLUSION.  PICKUP V. THAMES INSURANCE CO., 3 Q.B.D.
594; AJUM GOOLAM HOSSEN & CO. V. UNION MARINE INSURANCE CO., (1901)
A.C. 362, 366; LINDSAY V. KLEIN, (1911) A.C. 194, 203, 205; SEE
CONSTANTINE S.S. LINE V. IMPERIAL SMELTING CORP., (1941) 2 ALL ENG.
165, 191-92. 

PROOF OF THE SINKING OF THE BARGE AIDED PETITIONER, BUT DID NOT
RELIEVE IT FROM SUSTAINING THE BURDEN OF PERSUASION WHEN ALL THE
EVIDENCE WAS IN.  THIS COURT, IN THE CASE OF PRIVATE BAILMENTS, HAS
GIVEN LIKE EFFECT TO THE RULE THAT THE UNEXPLAINED FAILURE OF THE
BAILEE TO RETURN THE BAILED GOODS IS PRIMA FACIE EVIDENCE OF HIS BREACH
OF DUTY, SOUTHERN RY. CO. V. PRESCOTT, SUPRA, 640, AND CASES CITED; SEE
CHESAPEAKE & OHIO RY. CO. V. THOMPSON MFG. CO., 270 U.S. 416, 422; AND
THE LOWER FEDERAL COURTS HAVE APPLIED, CORRECTLY WE THINK, THE SAME
RULE WITH RESPECT TO PROOF OF UNSEAWORTHINESS BY THE SHIPPER WHERE THE
VESSEL HAS NOT ASSUMED THE OBLIGATION OF A COMMON CARRIER.  KOHLSAAT V.
PARKERSBURG & M. SAND CO., SUPRA, 285; ROBERT A. MUNROE CO. V.
CHESAPEAKE LIGHTERAGE CO., 283 F. 526; THE NORDHVALEN, SUPRA; TOMKINS
COVE STONE CO. V. BLEAKLEY CO., SUPRA; DELAWARE DREDGING CO. V. GRAHAM,
SUPRA, 854.  THIS IS BUT A PARTICULAR APPLICATION OF THE DOCTRINE OF
RES IPSA LOQUITUR, WHICH SIMILARLY IS AN AID TO THE PLAINTIFF IN
SUSTAINING THE BURDEN OF PROVING BREACH OF THE DUTY OF DUE CARE BUT
DOES NOT AVOID THE REQUIREMENT THAT UPON THE WHOLE CASE HE MUST PROVE
THE BREACH BY THE PREPONDERANCE OF EVIDENCE.  SWEENEY V. ERVING, 228
U.S. 233. 

THE EDWIN I. MORRISON, 153 U.S. 199, CALLS FOR NO DIFFERENT RESULT. 
THERE THIS COURT REVERSED THE FINDINGS OF THE LOWER COURT ON THE GROUND
THAT THE EXPLANATION OFFERED FOR DAMAGE TO THE CARGO BY SEAWATER TAKEN
IN THROUGH A DEFECTIVE BILGE PUMP HOLE, WAS ONLY A CONJECTURE SUPPORTED
BY NO DIRECT TESTIMONY AND WAS NOT SUFFICIENT TO SUSTAIN THE BURDEN OF
THE SHIPOWNER TO PROVE THAT THE VESSEL WAS SEAWORTHY, SAYING (P. 212):
"IF THE DETERMINATION OF THIS QUESTION IS LEFT IN DOUBT, THAT DOUBT
MUST BE RESOLVED AGAINST" THE SHIPOWNER.  SEE THE DUNBRITTON, 73 F.
352, 358; THE ALVENA, 74 F. 252, 255.  THE COURT BELOW HAD FOUND THAT
THE BILL OF LADING SIGNED BY THE MASTER-OWNER UNDERTOOK TO DELIVER THE
SHIPMENT IN "GOOD ORDER AND CONDITION," THE "DANGERS OF THE SEA
EXCEPTED."  NO EXCEPTION WAS TAKEN TO THIS FINDING, AND IN THIS COURT
THE SHIPPER'S CONTENTION THAT SUCH WAS THE CONTRACT WAS NOT CHALLENGED
BY THE OWNER.  THE OPINION MUST BE TAKEN AS PROCEEDING, AS IN THE
FOLMINA AND SCHNELL V. THE VALLESCURA, SUPRA, ON THE GROUND THAT THE
CASE WAS ONE IN WHICH THE OBLIGATION ASSUMED WAS THAT OF A COMMON
CARRIER ON WHOM THE BURDEN RESTS OF PROVING THAT THE CARGO LOSS IS NOT
DUE TO UNSEAWORTHINESS.  THE EXPRESSIONS IN THE OPINION, AS TO THE
BURDEN OF PROOF WHICH THE SHIPOWNER MUST CARRY IN ORDER TO BRING HIM
WITHIN THE EXCEPTION OF PERILS OF THE SEA, HAVE BEEN CITED, IN THE ONLY
INSTANCES WHEN APPROVED BY THIS COURT, AS RELATING TO THE BURDEN OF
PROOF ON THOSE WHO HAVE ASSUMED THE OBLIGATIONS OF COMMON CARRIERS. 
SEE THE MAJESTIC, SUPRA, 386; THE FOLMINA, SUPRA, 363; SCHNELL V. THE
VALLESCURA, SUPRA, 305. 

HERE PETITIONER RELIED ON THE INFERENCE TO BE DRAWN FROM THE
UNEXPLAINED SINKING OF THE BARGE TO SUSTAIN ITS BURDEN OF PROVING
UNSEAWORTHINESS.  BUT THE EVIDENCE DID NOT STOP THERE.  TO REBUT THE
INFERENCE, RESPONDENT CAME FORWARD WITH EVIDENCE FULLY DISCLOSING THE
CIRCUMSTANCES ATTENDING THE SINKING.  INSPECTION OF THE BARGE BEFORE
THE LOADING BEGAN AND AFTER SHE SANK, AND AGAIN AFTER SHE WAS RAISED,
FAILED TO DISCLOSE ANY PERSUASIVE EVIDENCE OF UNSEAWORTHINESS.  THE
METHOD AND CIRCUMSTANCES OF HER LOADING AT LEAST TENDED TO WEAKEN THE
INFERENCE WHICH MIGHT OTHERWISE HAVE BEEN DRAWN THAT THE SINKING WAS
DUE TO UNSEAWORTHINESS RATHER THAN FAULT IN STOWING THE CARGO.  UPON AN
EXAMINATION OF ALL THE EVIDENCE OF WHICH THE SINKING, WITHOUT ANY
PROVEN SPECIFIC CAUSE, WAS A PART, THE TWO COURTS BELOW HAVE FOUND THAT
NO INFERENCE AS TO THE CAUSE OF SINKING CAN BE DRAWN.  PETITIONER HAS
THUS FAILED TO SUSTAIN THE BURDEN RESTING ON IT.  AFFIRMED. 

MR. JUSTICE BLACK, DISSENTING: 

IT HAS LONG BEEN RECOGNIZED THAT "COURTS OF ADMIRALTY ARE NOT
GOVERNED BY THE STRICT RULES OF THE COMMON LAW, BUT ACT UPON ENLARGED
PRINCIPLES OF EQUITY."  O'BRIEN V. MILLER, 168 U.S. 287, 297.  WHERE,
AS HERE, THE RESULT OF A CASE IN ADMIRALTY IS MADE TO TURN UPON THE
DISTINCTION BETWEEN A COMMON AND PRIVATE CARRIER, ONE MAY WELL ASK
WHETHER MORE RESPECT HAS BEEN PAID TO TECHNICAL NICETIES OF THE COMMON
LAW THAN BEFITS THE ADMIRALTY TRADITION.  CF. THE CONFISCATION CASES,
20 WALL.  92, 105-106, 107.  I DO NOT DENY THAT IN MANY SITUATIONS THE
DISTINCTION MAY BE IMPORTANT NOR THAT LEGISLATURES AND COURTS MAY BE
COMPELLED FROM TIME TO TIME TO RESURVEY THE CHANGING LINE OF
SEPARATION.  BUT HERE, I AM CONVINCED, THE DISTINCTION IS IRRELEVANT TO
A JUST DISPOSITION OF THE CASE BEFORE US. 

IN THE OPINION JUST ANNOUNCED, THE BURDEN OF PROVING SEAWORTHINESS IS
TIED UP WITH A COMMON CARRIER'S OBLIGATIONS AS AN INSURER.  BUT IN
SCHNELL V. THE VALLESCURA, 293 U.S. 296, ALTHOUGH THE DEFENDANT WAS A
COMMON CARRIER ON WHOM IT WAS HELD SUCH A BURDEN LIES, NO SUGGESTION
THAT THE COURT RESTED ITS RESULT UPON THE PECULIAR OBLIGATION OF THE
DEFENDANT AS AN INSURER CAN BE FOUND IN THE OPINION.  AND SO FAR AS
APPEARS FROM THE BRIEFS AND ARGUMENTS OF COUNSEL AS WELL AS THE
MAJORITY OPINION HERE, IT WOULD SEEM THAT THIS COURT HAS NEVER BEFORE
GIVEN THE INSURER'S LIABILITY OF COMMON CARRIERS AS THE REASON FOR THE
HEAVY BURDEN OF PROOF THEY BEAR IN ADMIRALTY CASES OF THIS TYPE.  ON
THE CONTRARY, THE BASIS USUALLY GIVEN FOR THE RULE IS THE ONE
EXPLICITLY STATED IN SCHNELL V. THE VALLESCURA, SUPRA, AT PAGE 304: 

"THE REASON FOR THE RULE IS APPARENT.  HE IS A BAILEE ENTRUSTED WITH
THE SHIPPER'S GOODS, WITH RESPECT TO THE CARE AND SAFE DELIVERY OF
WHICH THE LAW IMPOSES UPON HIM AN EXTRAORDINARY DUTY.  DISCHARGE OF THE
DUTY IS PECULIARLY WITHIN HIS CONTROL.  ALL THE FACTS AND CIRCUMSTANCES
UPON WHICH HE MAY RELY TO RELIEVE HIM OF THAT DUTY ARE PECULIARLY
WITHIN HIS KNOWLEDGE AND USUALLY UNKNOWN TO THE SHIPPER.  IN
CONSEQUENCE, THE LAW CASTS UPON HIM THE BURDEN OF THE LOSS WHICH HE
CANNOT EXPLAIN OR, EXPLAINING, BRING WITHIN THE EXCEPTIONAL CASE IN
WHICH HE IS RELIEVED FROM LIABILITY." 

IT IS DIFFICULT TO SEE ANY PERSUASIVE REASON FOR CONCLUDING THAT THE
RULE AS THUS EXPLAINED IS ANY LESS APPROPRIATELY APPLIED TO PRIVATE
CARRIERS THAN TO COMMON CARRIERS.  IN BOTH CASES THE SHIPPER NORMALLY
HAS NO REPRESENTATIVE ON BOARD THE SHIP, THE MASTER AND CREW BEING
EMPLOYEES OF THE CARRIER, WITH THE RESULT THAT THE DIFFICULTIES
ENCOUNTERED BY THE SHIPPER IN SEEKING TO FIND OUT HOW THE LOSS OCCURRED
ARE EQUALLY GREAT.  SEE CARVER, CARRIAGE OF GOODS BY SEA (8TH ED.)  9. 

I HAVE FOUND NO LANGUAGE IN THE OPINIONS OF THIS COURT, IN CASES
HOLDING THE BURDEN OF PROOF OF SEAWORTHINESS RESTS ON A COMMON CARRIER,
THAT EVEN SUGGESTS, NOT TO SAY COMPELS, THE INFERENCE THAT A DIFFERENT
RESULT WOULD HAVE BEEN REACHED IF THE CARRIER HAD BEEN A PRIVATE ONE. 
HENCE, IF THE QUESTION OF THIS CASE WERE ONE OF ORIGINAL IMPRESSION, I
SHOULD SEE NO OBSTACLE TO A HOLDING THAT WOULD GIVE TO THE SHIPPER
HERE, WHO CLEARLY HAD NO EASIER ACCESS TO EVIDENCE THAN DID THE SHIPPER
IN THE VALLESCURA CASE, THE BENEFITS OF A SIMILAR ALLOCATION OF THE
BURDEN OF PROOF. 

BUT THE QUESTION IS NOT ONE OF ORIGINAL IMPRESSION.  IN THE EDWIN I.
MORRISON, 153 U.S. 199, THIS COURT HELD THAT THE BURDEN WAS ON A
PRIVATE CARRIER TO PROVE SEAWORTHINESS IN A CONTROVERSY DISTINGUISHABLE
IN NO SIGNIFICANT RESPECT FROM THAT NOW BEFORE US.  THE OPINION OF THE
COURT HERE HAS SUGGESTED THAT THE FINDING BY THE CIRCUIT COURT IN THE
MORRISON CASE THAT THE BILL OF LADING STATED THAT THE CARRIER WOULD
DELIVER THE SHIPMENT "IN GOOD ORDER AND CONDITION" AMOUNTED TO A
FINDING THAT THE CARRIER HAD BY CONTRACT ASSUMED ADDITIONAL
OBLIGATIONS, I.E., THOSE OF A COMMON CARRIER.  HENCE, THE COURT SEES IN
THAT DECISION NOTHING MORE THAN THE REITERATION OF THE PROPOSITION THAT
A COMMON CARRIER HAS THE BURDEN OF PROVING SEAWORTHINESS AND FINDS IN
IT NO INDICATION OF WHAT THE BURDEN OF A PRIVATE CARRIER SHOULD BE. 

IT MAY SERIOUSLY BE QUESTIONED WHETHER THE FINDING THAT THE BILL OF
LADING CONTAINED THE CASUAL PHRASE JUST QUOTED CAN PROPERLY BE
INTERPRETED AS A FINDING OF A CONTRACT TO ASSUME THE PECULIAR
LIABILITIES (WHATEVER THEY MAY HAVE BEEN) OF A COMMON CARRIER.  BUT
EVEN ON THE ASSUMPTION THAT THE COURT'S INTERPRETATION OF THE FINDING
IS CORRECT, ITS INTERPRETATION OF THE BASIS OF DECISION IN THE MORRISON
CASE SEEMS CLEARLY ERRONEOUS.  NOWHERE IN THAT OPINION IS THERE THE
SMALLEST SUGGESTION THAT THE CARRIER WAS REGARDED AS HAVING BARGAINED
ITSELF INTO A POSITION OF SPECIAL LIABILITY.  IF THE COURT HAD BELIEVED
A DISTINCTION MUST BE MADE BETWEEN PRIVATE AND COMMON CARRIERS, I
SHOULD SUPPOSE IT WOULD HAVE BEEN EXPLICIT IN STATING THAT THIS
CARRIER, ALTHOUGH A PRIVATE CARRIER, HAD ASSUMED THE OBLIGATIONS OF A
COMMON CARRIER BY CONTRACT.  I THINK IT INCONCEIVABLE THAT IT WOULD
HAVE LEFT A FACT OF SUCH SIGNIFICANCE TO BE DEDUCED FROM AN
INCONSPICUOUS PHRASE IN THE FINDINGS OF THE CIRCUIT COURT SET OUT IN A
FOOTNOTE TO THE "STATEMENT OF THE CASE" SEVEN PAGES BEFORE THE OPINION
ITSELF BEGINS.  THE EDWIN I. MORRISON, SUPRA, 203, N. 1. 

IN THE LOTTAWANNA, 21 WALL.  558, 571, MR. JUSTICE BRADLEY STATED:
"IF  ...  WITH THE NEW LIGHTS THAT HAVE BEEN THROWN UPON THE WHOLE
SUBJECT OF MARITIME LAW AND ADMIRALTY JURISDICTION, A MORE RATIONAL
VIEW OF THE QUESTION DEMANDS AN ADVERSE RULING IN ORDER TO PRESERVE
HARMONY AND LOGICAL CONSISTENCY IN THE GENERAL SYSTEM, THE COURT MIGHT,
PERHAPS, IF NO EVIL CONSEQUENCES OF A GLARING CHARACTER WERE LIKELY TO
ENSUE, FEEL CONSTRAINED TO ADOPT IT.  BUT IF NO SUCH NECESSITY EXISTS,
WE OUGHT NOT TO PERMIT ANY CONSIDERATION OF MERE EXPEDIENCY OR LOVE OF
SCIENTIFIC COMPLETENESS, TO DRAW US INTO A SUBSTANTIAL CHANGE OF THE
RECEIVED LAW."  IN THE "RECEIVED LAW" OF THIS COURT, AT LEAST SINCE
1894, WHEN THE MORRISON CASE WAS DECIDED, NO DISTINCTION HAS BEEN DRAWN
BETWEEN PRIVATE AND COMMON CARRIERS WITH REFERENCE TO THE BURDEN OF
PROVING SEAWORTHINESS.  IF SUCH A DISTINCTION HAD EXISTED, THE "NEW
LIGHTS" SHED BY THE AWARENESS OF EVER INCREASING COMPLEXITY IN MODERN
SHIPPING, A COMPLEXITY EQUALLY INCOMPREHENSIBLE TO THE SHIPPER WHETHER
HE DEALS WITH A PRIVATE OR COMMON CARRIER, COULD, PERHAPS NOT WITHOUT
PROPRIETY, HAVE BEEN TAKEN BY THIS COURT AS A REASON FOR ERASING IT.
BUT THE CONTRARY PROCEDURE, OF ESTABLISHING A DISTINCTION WHICH NEITHER
WAS PRESENT IN OUR RECEIVED LAW NOR IS DEMANDED "TO PRESERVE HARMONY
AND LOGICAL CONSISTENCY," SEEMS WHOLLY UNJUSTIFIABLE. 

ACCORDINGLY, IT IS MY OPINION THAT THE JUDGMENT BELOW SHOULD BE
REVERSED. 

MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, AND MR. JUSTICE BYRNES
CONCUR IN THIS OPINION. 
..END :









TOUCEY V. N.Y. LIFE INS. CO., 314 U.S. 118 


NO. 16.  REARGUED OCTOBER 17, 1941.  - DECIDED NOVEMBER 17, 1941.  - 112
F.2D 927 AND 115 F.2D 1, REVERSED. 


PROCEEDING IN PERSONAM IN A STATE COURT ON THE GROUND THAT THE CLAIM IN
CONTROVERSY HAS BEEN PREVIOUSLY ADJUDICATED BY THE FEDERAL COURT.  P.
129. 

TOUCEY V. NEW YORK LIFE INSURANCE CO.* 

*TOGETHER WITH NO. 19, PHOENIX FINANCE CORP. V. IOWA-WISCONSIN BRIDGE
CO., ALSO ON WRIT OF CERTIORARI, 312 U.S. 670, TO THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT - ARGUED MARCH 13, 1941, REARGUED
OCTOBER 17, 20, 1941. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

NO. 16 CAME HERE ON CERTIORARI, 311 U.S. 643, TO REVIEW THE
AFFIRMANCE OF A DECREE OF INJUNCTION, 112 F.2D 927.  THE DECISION BELOW
WAS AFFIRMED HERE BY AN EQUALLY DIVIDED COURT, 313 U.S. 538;
SUBSEQUENTLY, A REHEARING WAS GRANTED, 313 U.S. 596. 

NO. 19 IS HERE ON CERTIORARI, 312 U.S. 670, TO REVIEW THE AFFIRMANCE
OF A DECREE OF INJUNCTION, 115 F.2D 1. 

THE ACTION OF THE DISTRICT COURT IN ENJOINING THE PROSECUTION OF THE
STATE COURT ACTION, PURSUANT TO RESPONDENT'S SUPPLEMENTAL BILL, WAS
PROPER AND IN ACCORDANCE WITH THE WELL-RECOGNIZED POWER OF FEDERAL
COURTS OF EQUITY TO EFFECTUATE AND PERFECT THEIR OWN FINAL DECREES. 

THE REMEDY BY SUPPLEMENTAL BILL IS OF ANCIENT ORIGIN.  STORY'S EQ.
JUR., C. 23, SEC. 874; EDEN, TREATISE ON THE LAW OF INJUNCTIONS, 1839;
KERSHAW V. THOMPSON, 4 JOHNS.  CH. 609; DOVE V. DOVE, DICKENS 617, 1
BRO. 375, 1 COX 101; STORY'S EQ. JUR.  SEC.  1291; 4 KENT COMM. LECT. 
58, PP. 191-192 (3RD ED.); SCHENCK V. CONOVER, 13 N.J. EQ. 220. 

THE REMEDY BY SUPPLEMENTAL BILL HAS NOT BEEN CONFINED TO ACTIONS
INVOLVING THE POSSESSION OF REAL ESTATE OR OTHER PROPERTY.  SHEPHERD V.
TOWGOOD, TUR.  & RUS.  379; BUFFUM'S CASE, 13 N.H. 14; LUDLOW V.
LANSING, 4 JOHNS.  CH. 613. 

THIS COURT HAS REPEATEDLY HELD THAT WHERE A FEDERAL COURT HAS MADE A
FINAL DECREE IN EQUITY AND WHERE ONE OF THE PARTIES, OR ONE IN PRIVITY
WITH HIM, ATTEMPTS OR THREATENS A COURSE OF ACTION WHICH WILL NULLIFY
THE DECREE OR LESSEN OR IMPAIR ITS EFFECT, THE FEDERAL COURT WILL, UPON
THE FILING OF A SUPPLEMENTAL BILL, AWARD ITS INJUNCTION.  ROOT V.
WOOLWORTH, 150 U.S. 401; JULIAN V. CENTRAL TRUST CO., 193 U.S. 93;
RIVERDALE COTTON MILLS V. ALABAMA & GEORGIA MFG. CO., 198 U.S. 188;
FRENCH V. HAY, 22 WALL.  250; GUNTER V. ATLANTIC COAST LINE, 200 U.S.
273; LOONEY V. EASTERN TEXAS R. CO., 247 U.S. 214; SUPREME TRIBE OF BEN
HUR V. CAUBLE, 255 U.S. 356; INDEPENDENT COAL & COKE CO. V. UNITED
STATES, 274 U.S. 640; LOCAL LOAN CO. V. HUNT, 292 U.S. 234; DUGAS V.
AMERICAN SURETY CO., 300 U.S. 414. 

THE LOWER FEDERAL COURTS HAVE FOLLOWED THESE DECISIONS IN A VARIETY
OF CASES. 

THE PRESENT CASE, PREVENT A FEDERAL COURT FROM STAYING PROCEEDINGS IN
AN ACTION IN PERSONAM PENDING IN A STATE COURT, WHERE THE PURPOSE AND
EFFECT OF THE STATE COURT PROCEEDING ARE TO RELITIGATE ISSUES FINALLY
ADJUDICATED BY A PRIOR FEDERAL COURT DECREE. 

THIS SECTION MUST BE CONSTRUED IN THE LIGHT OF SEC. 262 WHICH
AUTHORIZES THE FEDERAL COURTS TO ISSUE ALL WRITS NOT SPECIFICALLY
PROVIDED FOR BY STATUTE WHICH MAY BE NECESSARY FOR THE EXERCISE OF
THEIR RESPECTIVE JURISDICTIONS AND AGREEABLE TO THE USAGES AND
PRINCIPLES OF LAW. 

THE PURPOSE OF SEC. 265 IS TO PREVENT NEEDLESS FRICTION AND UNSEEMLY
CONFLICT BETWEEN FEDERAL AND STATE COURTS.  OKLAHOMA PACKING CO. V.
OKLAHOMA GAS CO., 309 U.S. 4; HALE V. BIMCO TRADING CO., 306 U.S. 375;
ESSANAY FILM CO. V. KANE, 258 U.S. 358. 

THERE ARE SEVERAL WELL-DEFINED CLASSES OF CASES WHICH THIS COURT HAS
HELD DO NOT COME WITHIN THE PROHIBITION OF THE STATUTE AND IN WHICH THE
FEDERAL COURTS HAVE ENJOINED PROCEEDINGS IN STATE COURTS.  SOME OF
THESE ARE: 

1.  SUITS TO ENJOIN THE INSTITUTION OR PROSECUTION IN THE STATE COURT
OF PROCEEDINGS TO ENFORCE A LOCAL STATUTE WHICH IS REPUGNANT TO THE
CONSTITUTION.  EX PARTE YOUNG, 209 U.S. 123; TRUAX V. RAICH, 239 U.S.
33; MISSOURI V. CHICAGO, B. & Q.R. CO., 241 U.S. 533. 

2.  SUITS TO ENJOIN THE INSTITUTION OR PROSECUTION OF A STATE COURT
ACTION, THE RESULT OF WHICH WOULD BE TO CAST AN UNDUE BURDEN UPON
INTERSTATE COMMERCE.  ATCHISON, T. & S.F. RY. CO. V. WELLS, 265 U.S.
101; RIEHLE V. MARGOLIES, 279 U.S. 218; HILL V. MARTIN, 296 U.S. 393. 

3.  SUITS TO ENJOIN THE INSTITUTION OR PROSECUTION OF A STATE COURT
ACTION WHERE THE LATTER WOULD INTERFERE WITH THE CUSTODY OF A RES
PREVIOUSLY ACQUIRED BY THE FEDERAL COURT, OR WHERE THE FEDERAL COURT
HAS THE PRIOR CUSTODY OF PROPERTY, IN WHATEVER FORM, BY RECEIVERSHIP,
EQUITABLE FORECLOSURE OR OTHER APPROPRIATE PROCEEDINGS.  COVELL V.
HEYMAN, 111 U.S. 176; JULIAN V. CENTRAL TRUST CO., 193 U.S. 93;
RIVERDALE COTTON MILLS V. ALABAMA & GEORGIA MFG. CO., 198 U.S. 188;
KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226. 

4.  SUITS TO ENJOIN THE ENFORCEMENT OF A JUDGMENT OBTAINED IN THE
STATE COURT BY FRAUD, WITHOUT SERVICE OF LEGAL PROCESS, AND WITHOUT
NOTICE.  ARROWSMITH V. GLEASON, 129 U.S. 86; SIMON V. SOUTHERN RY. CO.,
236 U.S. 115. 

5.  SUITS TO ENJOIN FURTHER PROCEEDINGS IN STATE COURTS IN CASES
WHICH HAVE BEEN REMOVED TO FEDERAL COURTS.  FRENCH V. HAY, 22 WALL. 
250; DIETZSCH V. HUIDEKOPER, 103 U.S. 494; MADISONVILLE TRACTION CO. V.
ST. BERNARD MINING CO., 196 U.S. 239. 

6.  SUITS UPON SUPPLEMENTAL BILLS TO ENJOIN THE INSTITUTION OR
PROSECUTION OF STATE COURT ACTIONS, THE OBJECT OR EFFECT OF WHICH IS TO
RELITIGATE AND READJUDICATE ISSUES SETTLED BY THE FINAL DECREES OF THE
FEDERAL COURTS, OR WHICH WOULD OTHERWISE TEND TO NULLIFY THOSE DECREES
OR LESSEN OR IMPAIR THEIR EFFECT.  ROOT V. WOOLWORTH, 150 U.S. 401;
JULIAN V. CENTRAL TRUST CO., 193 U.S. 93; RIVERDALE COTTON MILLS V.
ALABAMA & GEORGIA MFG. CO., 198 U.S. 188; GUNTER V. ATLANTIC COAST
LINE, 200 U.S. 273; LOONEY V. EASTERN TEXAS R. CO., 247 U.S. 214;
SUPREME TRIBE OF BEN-HUR V. CAUBLE, 255 U.S. 356; INDEPENDENT COAL &
COKE CO. V. UNITED STATES, 274 U.S. 640; LOCAL LOAN CO. V. HUNT, 292
U.S. 234; DUGAS V. AMERICAN SURETY CO., 300 U.S. 414. 

THE PRESENT CASE FALLS PERFECTLY WITHIN THE SIXTH CLASSIFICATION. 
SEE WELLS FARGO & CO. V. TAYLOR, 254 U.S. 175. 

THE NECESSITY FOR EXCEPTIONS TO THE LITERAL LANGUAGE OF SEC. 265 IS
ILLUSTRATED IN:  DIETZSCH V. HUIDEKOPER, 103 U.S. 494; FRENCH V. HAY,
22 WALL.  250; ARROWSMITH V. GLEASON, 129 U.S. 86; JULIAN V. CENTRAL
TRUST CO., 193 U.S. 93; LOONEY V. EASTERN TEXAS R. CO., 247 U.S. 214. 

THESE CASES EMPHASIZE THE PRINCIPLE THAT THE EXCEPTIONS WHICH THIS
COURT HAS RECOGNIZED FROM THE OPERATION OF THE STATUTE ARE FOR THE
PURPOSE OF AVOIDING CONFLICT RATHER THAN OF CREATING IT.  SEE GUNTER V.
ATLANTIC COAST LINE, 200 U.S. 273, 292; LOCAL LOAN CO. V. HUNT, 292
U.S. 234; DUGAS V. AMERICAN SURETY CO., 300 U.S. 414, 428. 

THE EXISTENCE OF THESE WELL DEFINED EXCEPTIONS TO THE OPERATION OF
THE STATUTE WAS PARTICULARLY NOTED BY JUSTICE BRANDEIS IN RIEHLE V.
MARGOLIES, 279 U.S. 218, 223, AND HILL V. MARTIN, 296 U.S. 393.  SEE
OKLAHOMA PACKING CO. V. OKLAHOMA GAS CO., 309 U.S. 4, 8. 

IF IT WERE HELD THAT INJUNCTIONS COULD NOT ISSUE IN SUPPLEMENTAL
PROCEEDINGS TO PROTECT THE INTEGRITY OF PRIOR DECREES IN EQUITY OF THE
FEDERAL COURTS, IT WOULD FOLLOW THAT THESE COURTS WOULD ALSO BE
POWERLESS TO ENJOIN THE ENFORCEMENT OF VOID LOCAL STATUTES, TO ENJOIN
PROCEEDINGS WHICH CAST AN UNDUE BURDEN ON INTERSTATE COMMERCE, AND TO
ENJOIN STATE COURT PROCEEDINGS WHICH WOULD INTERFERE WITH THE FEDERAL
COURT'S POSSESSION OF A RES OR OF PROPERTY HELD IN RECEIVERSHIP OR
UNDER EQUITABLE FORECLOSURE.  THE FEDERAL COURTS COULD NO LONGER
PROTECT ACTIONS WHICH HAD BEEN VALIDLY REMOVED TO THEM FROM THE STATE
COURTS.  ON THE CONTRARY, THE STATE TRIBUNALS COULD PROCEED WITH SUCH
CASES, THUS, IN EFFECT, NULLIFYING THE REMOVAL STATUTE, SINCE THERE IS
NO ACT OF CONGRESS WHICH EXPRESSLY AUTHORIZES INJUNCTIONS WHERE CASES
HAVE BEEN REMOVED.  HENCE, THE EFFECT, IF THE SALUTARY EXCEPTION TO THE
RULE EXEMPLIFIED IN THE PRESENT CASE WERE ABROGATED, IS INCALCULABLE,
AND WOULD NOT ONLY CRIPPLE THE NORMAL FUNCTION OF THE FEDERAL COURTS,
DESTROY A GREAT BODY OF LAW WHICH THE UNANIMOUS DECISIONS OF THIS COURT
HAVE BUILT UP OVER A PERIOD OF MANY YEARS, BUT WOULD LEAD TO THAT VERY
CONFLICT BETWEEN THE FEDERAL AND STATE COURTS WHICH THE STATUTE UNDER
CONSIDERATION SEEMS TO HAVE BEEN DESIGNED TO ELIMINATE.  THE EXCEPTIONS
TO THE STATUTE WHICH WE HAVE MENTIONED, AS THIS COURT HAS SAID, ARE
DESIGNED NOT TO FRUSTRATE THE STATUTE BUT TO CARRY OUT THE PURPOSE FOR
WHICH IT WAS ENACTED. 

TO CONSTRUE SEC. 265 TO PROHIBIT THE INJUNCTION ISSUED IN THIS CASE
WOULD CREATE GRAVE DOUBTS RESPECTING ITS CONSTITUTIONALITY UNDER SEC. 2
OF ARTICLE III OF THE CONSTITUTION.  SECTION 265 SHOULD BE SO CONSTRUED
AS TO AVOID THESE DOUBTS, IN HARMONY WITH THE UNIFORM AND UNANIMOUS
DECISIONS OF THIS COURT. 

SEE TREINIES V. SUNSHINE MINING CO., 308 U.S. 66; HILL V. MARTIN, 296
U.S. 393; SMITH V. APPLE, 264 U.S. 274. 

IT IS ENTIRELY CONCEIVABLE THAT CONGRESS MIGHT PROPERLY DEPRIVE THE
DISTRICT COURTS OF THE UNITED STATES OF THOSE POWERS EQUITABLE IN
NATURE WHICH THEY HAVE HERETOFORE EXERCISED, INCLUDING THE POWER TO
ISSUE INJUNCTIONS PROVIDED FOR BY SEC. 277 OF THE JUDICIAL CODE (SEC.
263, TITLE 28, U.S.C.), PROVIDED CONGRESS AT THE SAME TIME CONSTITUTED
OTHER INFERIOR COURTS HAVING THOSE EQUITY POWERS, AS THE CONSTITUTION
REQUIRES.  IT IS NOT CONCEIVABLE, HOWEVER, THAT, WITHOUT CREATING OTHER
COURTS INVESTED WITH THOSE POWERS, CONGRESS COULD, IN THE FACE OF THE
CONSTITUTIONAL MANDATE, ENTIRELY DEPRIVE A FEDERAL DISTRICT COURT OF
ITS POWERS AS A COURT OF EQUITY.  THIS POWER IS OF ANCIENT ORIGIN AND
INHERED IN COURTS OF EQUITY LONG BEFORE THE CONSTITUTION WAS ADOPTED. 
IRVINE V. MARSHALL, 20 HOW.  558, 564; MICHAELSON V. UNITED STATES, 266
U.S. 42, 64, 65; CROWELL V. BENSON, 285 U.S. 22. 

IT MAY BE THAT CONGRESS CAN LIMIT THE POWER OF INJUNCTION BY
ELIMINATING A PARTICULAR TYPE OF CONTROVERSY FROM ITS EFFECT, AS THIS
COURT HAS HELD WITH RESPECT TO THE NORRISLAGUARDIA ACT RESTRICTING THE
RIGHT OF INJUNCTION IN LABOR DISPUTES.  LAUF V. SHINNER & CO., 303 U.S.
323.  BUT THE PRESENT SITUATION IS OF A DIFFERENT KIND.  SECTION 265
LITERALLY CONSTRUED DOES NOT LIMIT THE USE OF THE INJUNCTION TO A
PARTICULAR CLASS OF CONTROVERSIES BUT PURPORTS TO ABOLISH ITS USE IN
EVERY CLASS OF CONTROVERSIES WHERE TO USE IT WILL EFFECT A STAY OF
PROCEEDINGS IN A STATE COURT.  IF A COURT OF EQUITY IS DEPRIVED OF THE
POWER TO CARRY OUT AND EFFECTUATE ITS OWN DECREES, IT IN EFFECT CEASES
TO BE A COURT OF EQUITY. 

THAT SEC. 265 CAN READILY BE SO CONSTRUED AS TO EFFECTUATE ITS
PURPOSE WITHOUT CREATING A DOUBT RESPECTING ITS CONSTITUTIONALITY IS
OBVIOUS FROM THE MANY CASES IN WHICH EXCEPTIONS TO ITS EFFECT HAVE BEEN
RECOGNIZED.  THAT SUCH AN INTERPRETATION AS THIS COURT AND INFERIOR
COURTS HAVE HERETOFORE GIVEN THE STATUTE OUGHT TO BE RESPECTED IS CLEAR
FROM THE RECENT PRONOUNCEMENTS OF THIS COURT UPON THE SUBJECT OF
STATUTORY CONSTRUCTION.  UNITED STATES V. AMERICAN TRUCKING ASSNS., 310
U.S. 534; WISCONSIN V. J. C. PENNEY CO., 311 U.S. 435. 

THE DECREES AND ORDERS OF THE DISTRICT COURT AND OF THE CIRCUIT COURT
OF APPEALS IN THE FORECLOSURE CAUSE CONSTITUTE ADJUDICATIONS AGAINST
PHOENIX OF THE SEVERAL ISSUES INVOLVED IN THE SUPPLEMENTAL AND
ANCILLARY PROCEEDINGS. 

THE DELAWARE SUPERIOR COURT ERRED IN UNDERTAKING TO REVIEW THE
FINDINGS OF THE FEDERAL COURT AND ITS CONCLUSIONS WERE ERRONEOUS. 

THE INJUNCTION ORDERS AGAINST PHOENIX DO NOT VIOLATE PRINCIPLES OF
EQUITY JURISDICTION.  THE FACT THAT THE DEFENSE OF RES JUDICATA CAN BE
URGED IN THE DELAWARE COURT DOES NOT FURNISH ANY REASON WHY INJUNCTIVE
RELIEF SHOULD NOT BE GRANTED.  STORY, EQUITY JURISPRUDENCE (14TH ED.),
SECS. 1194, 1209, 1227. 

THE PERMANENT PROHIBITORY AND MANDATORY INJUNCTION AGAINST PHOENIX
DID NOT VIOLATE SEC. 265 OF THE JUDICIAL CODE. 

THE FEDERAL COURT FIRST ACQUIRED JURISDICTION.  THE FEDERAL COURT HAD
APPOINTED A RECEIVER AND TAKEN INTO LEGAL CUSTODY ALL OF THE PROPERTY
OF THE BRIDGE COMPANY OF EVERY DESCRIPTION; IT HAD RENDERED ITS
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW AND FINAL DECREE,
RESERVING JURISDICTION TO DEAL WITH ALL MATTERS ARISING UNDER THE
RECEIVERSHIP AND IN CONNECTION WITH ADJUSTMENT AND PAYMENT OF TAXES AND
COUNSEL'S FEES BEFORE ANY OF THE DELAWARE ACTIONS WERE COMMENCED.  THIS
ACTION IS STILL PENDING IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF IOWA, WITH THE RECEIVER IN CHARGE OF ALL OF THE
BRIDGE COMPANY'S PROPERTY. 

JUDICIAL CODE SEC. 265 IS NOT A JURISDICTIONAL STATUTE, BUT A MERE
LIMITATION UPON THE GENERAL EQUITY POWERS OF THE FEDERAL COURTS,
PREVENTING RELIEF BY INJUNCTION IN THE CASES COVERED BY IT. SMITH V.
APPLE, 264 U.S. 274; PATTON V. MARSHALL, 173 F. 350. 

SEC. 262, AND IF A FEDERAL COURT HAS FIRST OBTAINED JURISDICTION OF A
CASE IT CAN TAKE SUCH ACTION AS MAY BE NECESSARY TO MAINTAIN ITS
AUTHORITY AND ENFORCE ITS DECREES.  LANNING V. OSBORNE, 79 F. 657, 662;
JULIAN V. CENTRAL TRUST CO., 193 U.S. 93; FRENCH V. HAY, 22 WALL.  250
253; DIETZSCH V. HUIDEKOPER, 103 U.S. 494. 

OTHERWISE CONFERRED BY THE FEDERAL STATUTES, BUT MERELY GOES TO THE
QUESTION OF EQUITY IN THE PARTICULAR BILL, MAKING IT THE DUTY OF THE
COURT, IN THE EXERCISE OF ITS JURISDICTION, TO DETERMINE WHETHER THE
SPECIFIC CASE PRESENTED IS ONE IN WHICH THE RELIEF BY INJUNCTION IS
PROHIBITED BY THIS SECTION OR MAY NEVERTHELESS BE GRANTED.  SOVEREIGN
CAMP V. O'NEILL, 266 U.S. 292; SMITH V. APPLE, 264 U.S. 274.    SECTION
265 APPLIES ONLY WHERE THE PROCEEDINGS ARE FIRST COMMENCED IN STATE
COURTS.  HAMILTON V. WALSH, 23 F. 420; LANNING V. OSBORNE, 79 F. 657;
JEWEL TEA CO. V. LEE'S SUMMIT, 198 F. 532, AFFIRMED 217 F. 965; KANSAS
CITY GAS CO. V. KANSAS CITY, 198 F. 500; LOONEY V. EASTERN TEXAS R.
CO., 247 U.S. 214; BETHKE V. GRAYBURG OIL CO., 89 F.2D 527, CERT.
DENIED 302 U.S. 730; LOCAL LOAN CO. V. HUNT, 292 U.S. 234; GARNER V.
SECOND NATIONAL BANK, 67 F. 833; ST. LOUIS MINING & MILLING CO. V.
MONTANA MINING CO., 148 F. 450. 

THE FEDERAL COURT HAS UNQUESTIONED POWER TO EFFECTUATE ITS DECREES
AND TO PREVENT RELITIGATION OF THE SAME MATTER.  ROOT V. WOOLWORTH, 150
U.S. 401; SARSON V. MACCIA, 108 A. 109, 111; FRENCH V. HAY, 22 WALL. 
250.  SEE ALSO:  HICKEY V. JOHNSON, 9 F.2D 498; STERLING V. GREDIG, 5
F.SUPP.  329; HESSELBERG V. AETNA LIFE INS. CO., 102 F.2D 23; TOUCEY V.
NEW YORK LIFE INS. CO., 102 F.2D 16, 33; SWIFT V. BLACK PANTHER, 244 F.
20; WILSON V. ALEXANDER, 276 F. 875; JULIAN V. CENTRAL TRUST CO., 193
U.S. 93; RIVERDALE COTTON MILLS V. ALABAMA-GEORGIA MFG. CO., 198 U.S.
189; WELLS FARGO & CO. V. TAYLOR, 254 U.S. 175; KERN V. HUIDEKOPER, 103
U.S. 494; MUNRO V. RAPHAEL, 288 U.S. 485; GUNTER V. ATLANTIC COAST LINE
R. CO., 200 U.S. 273; SLAUGHTER V. SLAUGHTER, 48 F.2D 210; ST. LOUIS
SAN FRANCISCO R. CO. V. MCELVAIN, 253 F. 123. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE CASES WERE ARGUED IN SUCCESSION AND ARE DEALT WITH IN A SINGLE
OPINION BECAUSE THE CONTROLLING QUESTION IN BOTH IS THE SAME:  DOES A
FEDERAL COURT HAVE POWER TO STAY A PROCEEDING IN A STATE COURT SIMPLY
BECAUSE THE CLAIM IN CONTROVERSY HAS PREVIOUSLY BEEN ADJUDICATED IN THE
FEDERAL COURT? 

NO. 16.  IN 1935, TOUCEY BROUGHT SUIT AGAINST THE NEW YORK LIFE
INSURANCE COMPANY IN A MISSOURI STATE COURT.  HE ALLEGED THAT IN 1924
THE COMPANY ISSUED HIM A LIFE INSURANCE POLICY PROVIDING FOR MONTHLY
DISABILITY BENEFITS AND FOR THE WAIVER OF PREMIUMS DURING DISABILITY;
THAT HE BECAME DISABLED IN APRIL, 1933, AND THAT THE DEFENDANT
FRAUDULENTLY CONCEALED THE DISABILITY PROVISIONS FROM HIM; THAT THE
DEFENDANT UNLAWFULLY CANCELLED THE POLICY FOR NONPAYMENT OF PREMIUMS;
THAT IN SEPTEMBER, 1935, HE DISCOVERED THE EXISTENCE OF THE DISABILITY
PROVISIONS; THAT HE THEN APPLIED TO THE COMPANY FOR REINSTATEMENT OF
THE POLICY AND FOR THE PAYMENT OF DISABILITY BENEFITS, AND THAT THE
COMPANY REFUSED. 

THE SUIT WAS REMOVED TO THE FEDERAL DISTRICT COURT FOR THE WESTERN
DISTRICT OF MISSOURI, THE PLAINTIFF BEING A CITIZEN OF MISSOURI, THE
DEFENDANT A NEW YORK CORPORATION, AND THE AMOUNT IN CONTROVERSY
EXCEEDING $3,000.  ALL OF THE MATERIAL ALLEGATIONS OF THE BILL WERE
DENIED.  THE DISTRICT COURT DISMISSED THE BILL, FINDING THAT THERE WAS
NO FRAUD ON THE DEFENDANT'S PART AND THAT THE PLAINTIFF WAS NOT
DISABLED WITHIN THE MEANING OF THE POLICY.  NO APPEAL WAS TAKEN. 

IN 1937, AN ACTION AT LAW WAS BROUGHT AGAINST THE INSURANCE COMPANY
IN THE MISSOURI STATE COURT BY ONE SHAY, A RESIDENT OF THE DISTRICT OF
COLUMBIA.  HE ALLEGED THAT HE WAS TOUCEY'S ASSIGNEE AND THAT TOUCEY'S
DISABILITY ENTITLED HIM TO JUDGMENT.  IT DOES NOT APPEAR THAT THE
INSURANCE COMPANY FILED AN ANSWER OR ANY OTHER PLEADING.  INSTEAD, A
"SUPPLEMENTAL BILL" WAS FILED IN THE WESTERN DISTRICT OF MISSOURI,
SETTING FORTH THE HISTORY OF THE LITIGATION BETWEEN THE PARTIES,
ALLEGING THAT THE ASSIGNMENT TO SHAY WAS MADE IN ORDER TO AVOID FEDERAL
JURISDICTION, AND PRAYING THAT TOUCEY BE ENJOINED FROM BRINGING ANY
SUIT FOR THE PURPOSE OF READJUDICATING THE ISSUES SETTLED BY THE
FEDERAL DECREE AND FROM FURTHER PROSECUTING THE SHAY SUIT. 

A PRELIMINARY INJUNCTION WAS GRANTED, AND AFFIRMED BY THE CIRCUIT
COURT OF APPEALS FOR THE EIGHTH CIRCUIT.  102 F.2D 16.  THE COURT HELD
THAT TOUCEY'S CLAIM IN THE PRIOR SUIT RESTED UPON PROOF OF HIS
DISABILITY, AND THAT THIS ISSUE, NECESSARILY INVOLVED IN THE SHAY
PROCEEDING, HAD BEEN CONCLUSIVELY DETERMINED IN THE INSURANCE COMPANY'S
FAVOR.  SECTION 265 OF THE JUDICIAL CODE, 36 STAT. 1162, 28 U.S.C. SEC.
379, WAS CONSTRUED NOT TO DEPRIVE A FEDERAL COURT OF THE POWER TO
ENJOIN STATE COURT PROCEEDINGS WHERE AN INJUNCTION IS "NECESSARY TO
PRESERVE TO LITIGANTS THE FRUITS OF, OR TO EFFECTUATE THE LAWFUL
DECREES OF THE FEDERAL COURTS."  CERTIORARI WAS DENIED, 307 U.S. 638,
AND THE INJUNCTION WAS MADE PERMANENT.  TOUCEY APPEALED AND THE CIRCUIT
COURT OF APPEALS AGAIN AFFIRMED, 112 F.2D 927.  IN VIEW OF THE
IMPORTANCE OF THE QUESTIONS PRESENTED, WE GRANTED CERTIORARI.  311 U.S.
643.  THE DECISION BELOW WAS AFFIRMED BY AN EQUALLY DIVIDED COURT, 313
U.S. 538, AND THE CASE IS NOW BEFORE US ON REHEARING, 313 U.S. 596. 

NO. 19.  THE IOWA-WISCONSIN BRIDGE COMPANY, A DELAWARE CORPORATION,
IN 1932 EXECUTED A DEED OF TRUST CONVEYING ALL OF ITS PROPERTY,
PRINCIPALLY A BRIDGE ACROSS THE MISSISSIPPI RIVER BETWEEN IOWA AND
WISCONSIN, TO SECURE A $200,000 BOND ISSUE.  IN 1933, THE TRUSTEES, AN
IOWA CORPORATION AND A WISCONSIN CITIZEN, FILED A BILL OF FORECLOSURE
IN THE FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA.  ONE
OF THE BRIDGE COMPANY'S STOCKHOLDERS INTERVENED AS A PARTY DEFENDANT,
ALLEGING THAT THE BONDS AND MORTGAGE WERE FRAUDULENT AND WITHOUT
CONSIDERATION.  UPON HIS MOTION, THE PHOENIX FINANCE CORPORATION, A
DELAWARE CORPORATION WHICH HELD ALMOST 90% OF THE BONDS, WAS JOINED AS
A PLAINTIFF.  THE BRIDGE COMPANY'S ANSWER CHALLENGED THE VALIDITY OF
THE INDENTURE AND ALLEGED THAT THE BONDS WERE ISSUED WITHOUT
CONSIDERATION.  PHOENIX DENIED ALL ALLEGATIONS OF FRAUD. 

THE CASE WAS TRIED BEFORE A MASTER, WHOSE MODIFIED CONCLUSIONS WERE
ADOPTED BY THE COURT.  FINDING THAT THE MORTGAGE AND BONDS WERE
FRAUDULENTLY ISSUED AND THAT ALMOST ALL THE BONDS WERE WITHOUT
CONSIDERATION, THE COURT DENIED FORECLOSURE.  THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED, 98 F.2D 416, AND CERTIORARI
WAS DENIED, 305 U.S. 650. 

PHOENIX THEREAFTER INSTITUTED FIVE SEPARATE SUITS AGAINST THE BRIDGE
COMPANY IN THE DELAWARE STATE COURTS, SEEKING RECOVERY ON VARIOUS NOTES
AND CONTRACTS CLAIMED TO HAVE CONSTITUTED THE CONSIDERATION FOR THE
BONDS.  THE BRIDGE COMPANY THEREUPON FILED A "SUPPLEMENTAL BILL" IN THE
NORTHERN DISTRICT OF IOWA, ASSERTING THAT THE ISSUES INVOLVED IN THE
STATE COURT SUITS HAD BEEN MADE RES JUDICATA BY THE FEDERAL DECREE, AND
PRAYING, INTER ALIA, THAT PHOENIX BE ENJOINED FROM FURTHER PROSECUTING
THE STATE SUITS.  (IN ONE OF THE SUITS, THE STATE COURT REJECTED THE
RES JUDICATA PLEA, PHOENIX FINANCE CORP. V. IOWAWISCONSIN BRIDGE CO.,
40 DEL. 500, 14 A.2D 386, AND AN APPEAL IS NOW PENDING IN THE SUPREME
COURT OF DELAWARE.)  THE DISTRICT COURT FOUND THAT PHOENIX WAS BOUND BY
THE FORMER DECREE, AND THAT THE PROHIBITION OF SEC. 265 WAS NO BAR TO
AN INJUNCTION.  THE CIRCUIT COURT OF APPEALS AFFIRMED, 115 F.2D 1, AND
BECAUSE OF THE RELATION OF THE QUESTIONS PRESENTED TO THOSE IN NO. 16,
WE BROUGHT THE CASE HERE.  312 U.S. 670. 

THE COURTS BELOW HAVE THUS DECIDED THAT THE PREVIOUS FEDERAL JUDGMENTS
ARE RES JUDICATA IN THE STATE PROCEEDINGS, AND THAT THEREFORE,
NOTWITHSTANDING THE PROHIBITORY PROVISIONS OF SEC. 265, THE FEDERAL
COURTS MAY USE THEIR INJUNCTIVE POWERS TO SAVE THE DEFENDANTS IN THE
STATE PROCEEDINGS THE INCONVENIENCE OF PLEADING AND PROVING RES
JUDICATA.  FN1 

FIRST.  SECTION 265 - "A LIMITATION OF THE POWER OF THE FEDERAL
COURTS DATING ALMOST FROM THE BEGINNING OF OUR HISTORY AND EXPRESSING
AN IMPORTANT CONGRESSIONAL POLICY - TO PREVENT NEEDLESS FRICTION
BETWEEN STATE AND FEDERAL COURTS," OKLAHOMA PACKING CO. V. GAS CO., 309
U.S. 4, 8-9 - IS DERIVED FROM SEC. 5 OF THE ACT OF MARCH 2, 1793, 1
STAT. 335:  "  ...  NOR SHALL A WRIT OF INJUNCTION BE GRANTED (BY ANY
COURT OF THE UNITED STATES) TO STAY PROCEEDINGS IN ANY COURT OF A STATE
...  "  IN ITS PRESENT FORM, 36 STAT. 1162, 28 U.S.C. SEC. 379, THE
PROVISION READS AS FOLLOWS:  "THE WRIT OF INJUNCTION SHALL NOT BE
GRANTED BY ANY COURT OF THE UNITED STATES TO STAY PROCEEDINGS IN ANY
COURT OF A STATE, EXCEPT IN CASES WHERE SUCH INJUNCTION MAY BE
AUTHORIZED BY ANY LAW RELATING TO PROCEEDINGS IN BANKRUPTCY."  FN2 

THE HISTORY OF THIS PROVISION IN THE JUDICIARY ACT OF 1793 IS NOT
FULLY KNOWN.  WE KNOW THAT ON DECEMBER 31, 1790, ATTORNEY GENERAL
EDMUND RANDOLPH REPORTED TO THE HOUSE OF REPRESENTATIVES ON DESIRABLE
CHANGES IN THE JUDICIARY ACT OF 1789.  AM. STATE PAPERS, MISC., VOL. 1,
NO. 17, PP. 21-36.  THE MOST SERIOUS QUESTION RAISED BY RANDOLPH
CONCERNED THE ARDUOUSNESS OF THE CIRCUIT DUTIES IMPOSED ON THE SUPREME
COURT JUSTICES.  BUT THE REPORT ALSO SUGGESTED A NUMBER OF AMENDMENTS
DEALING WITH PROCEDURAL MATTERS.  A SECTION OF THE PROPOSED BILL
SUBMITTED BY HIM PROVIDED THAT "NO INJUNCTION IN EQUITY SHALL BE
GRANTED BY A DISTRICT COURT TO A JUDGMENT AT LAW OF A STATE COURT." 
ID., P. 26.  RANDOLPH EXPLAINED THAT THIS CLAUSE "WILL DEBAR THE
DISTRICT COURT FROM INTERFERING WITH THE JUDGMENTS AT LAW IN THE STATE
COURTS; FOR IF THE PLAINTIFF AND DEFENDANT RELY UPON THE STATE COURTS,
AS FAR AS THE JUDGMENT, THEY OUGHT TO CONTINUE THERE AS THEY HAVE
BEGUN.  IT IS ENOUGH TO SPLIT THE SAME SUIT INTO ONE AT LAW, AND
ANOTHER IN EQUITY, WITHOUT ADDING A FURTHER SEPARATION, BY THROWING THE
COMMON LAW SIDE OF THE QUESTION INTO THE STATE COURTS, AND THE EQUITY
SIDE INTO THE FEDERAL COURTS."  ID., P. 34.  THE REPORT WAS CONSIDERED
BY THE HOUSE SITTING AS A COMMITTEE OF THE WHOLE, AND THEN WAS REFERRED
TO SUCCESSIVE SPECIAL COMMITTEES FOR FURTHER CONSIDERATION.  NO ACTION
WAS TAKEN UNTIL AFTER CHIEF JUSTICE JAY AND HIS ASSOCIATES WROTE THE
PRESIDENT THAT THEIR CIRCUIT-RIDING DUTIES WERE TOO BURDENSOME. 
AMERICAN STATE PAPERS, MISC., VOL. 1, NO. 32, P. 51.  IN RESPONSE TO
THIS COMPLAINT, WHICH WAS TRANSMITTED TO CONGRESS, THE ACT OF MARCH 2,
1793, WAS PASSED, CONTAINING IN SEC. 5, INTER ALIA, THE PROHIBITION
AGAINST STAYING STATE COURT PROCEEDINGS. 

CHARLES WARREN IN HIS ARTICLE FEDERAL AND STATE COURT INTERFERENCE,
43 HARV. L. REV. 345, 347, SUGGESTS THAT THIS PROVISION WAS THE DIRECT
CONSEQUENCE OF RANDOLPH'S REPORT.  THIS SEEMS DOUBTFUL, IN VIEW OF THE
VERY NARROW PURPOSE OF RANDOLPH'S PROPOSAL, NAMELY, THAT FEDERAL COURTS
OF EQUITY SHOULD NOT INTERFERE WITH THE ENFORCEMENT OF JUDGMENTS AT LAW
RENDERED IN THE STATE COURTS.  SEE TAYLOR AND WILLIS, THE POWER OF
FEDERAL COURTS TO ENJOIN PROCEEDINGS IN STATE COURTS, 42 YALE L.J.
1169, 1171, N. 14. 

THERE IS NO RECORD OF ANY DEBATES OVER THE STATUTE.  SEE 3 ANNALS OF
CONGRESS (1791-93).  IT HAS BEEN SUGGESTED THAT THE PROVISION REFLECTED
THE THEN STRONG FEELING AGAINST THE UNWARRANTED INTRUSION OF FEDERAL
COURTS UPON STATE SOVEREIGNTY.  CHISHOLM V. GEORGIA, 2 DALL.  419, WAS
DECIDED ON FEBRUARY 18, 1793, LESS THAN TWO WEEKS BEFORE THE PROVISION
WAS ENACTED INTO LAW.  THE SIGNIFICANCE OF THIS PROXIMITY IS DOUBTFUL. 
COMPARE WARREN, FEDERAL AND STATE COURT INTERFERENCE, 43 HARV. L. REV.
345, 347-48, WITH GUNTER V. ATLANTIC COAST LINE, 200 U.S. 273, 291-92. 
MUCH MORE PROBABLE IS THE SUGGESTION THAT THE PROVISION REFLECTED THE
PREVAILING PREJUDICES AGAINST EQUITY JURISDICTION.  THE JOURNAL OF
WILLIAM MACLAY (1927 ED.), CHRONICLING THE PROCEEDINGS OF THE SENATE
WHILE HE WAS ONE OF ITS MEMBERS (1789-1791), CONTAINS ABUNDANT EVIDENCE
OF A WIDESPREAD HOSTILITY TO CHANCERY PRACTICE.  SEE ESPECIALLY, PP. 92
94, 101-06(DEBATE ON THE BILL THAT BECAME JUDICIARY ACT OF 1789). 
MOREOVER, SENATOR ELLSWORTH (SOON TO BECOME CHIEF JUSTICE OF THE UNITED
STATES), THE PRINCIPAL DRAFTSMAN OF BOTH THE 1789 AND 1793 JUDICIARY
ACTS, OFTEN INDICATED A DISLIKE FOR EQUITY JURISDICTION.  SEE BROWN,
LIFE OF OLIVER ELLSWORTH (1905 ED.)  194; JOURNAL OF WILLIAM MACLAY
(1927 ED.)  103-04; WARREN, NEW LIGHT ON THE HISTORY OF THE FEDERAL
JUDICIARY ACT OF 1789, 37 HARV. L. REV. 49, 96-100.  FN3 

REGARDLESS OF THE VARIOUS INFLUENCES WHICH SHAPED THE ENACTMENT OF
SEC. 5 OF THE ACT OF MARCH 2, 1793, THE PURPOSE AND DIRECTION
UNDERLYING THE PROVISION ARE MANIFEST FROM ITS TERMS:  PROCEEDINGS IN
THE STATE COURTS SHOULD BE FREE FROM INTERFERENCE BY FEDERAL
INJUNCTION.  THE PROVISION EXPRESSES ON ITS FACE THE DUTY OF "HANDS
OFF" BY THE FEDERAL COURTS IN THE USE OF THE INJUNCTION TO STAY
LITIGATION IN A STATE COURT.  FN4 

SECOND.  THE LANGUAGE OF THE ACT OF 1793 WAS UNQUALIFIED:  "  ...
NOR SHALL A WRIT OF INJUNCTION BE GRANTED TO STAY PROCEEDINGS IN ANY
COURT OF A STATE  ...  " 1 STAT. 335.  IN THE COURSE OF ONE HUNDRED AND
FIFTY YEARS, CONGRESS HAS MADE FEW WITHDRAWALS FROM THIS SWEEPING
PROHIBITION: 

(1)  BANKRUPTCY PROCEEDINGS.  THIS IS THE ONLY LEGISLATIVE EXCEPTION
WHICH HAS BEEN INCORPORATED DIRECTLY INTO SEC. 265:  "  ...  EXCEPT IN
CASES WHERE SUCH INJUNCTION MAY BE AUTHORIZED BY ANY LAW RELATING TO
PROCEEDINGS IN BANKRUPTCY."  36 STAT. 1162.  THIS PROVISION, BASED UPON
SEC. 21 OF THE BANKRUPTCY ACT OF 1867, 14 STAT. 526, WAS INSERTED IN
THE ACT OF 1793 BY THE REVISERS.  R.S. SEC. 720; SEE PROPOSED DRAFT OF
REVISION OF U.S. STATUTES (1872), VOL. 1, PP. 418. 

(2)  REMOVAL OF ACTIONS.  THE REMOVAL ACTS, EVER SINCE THE ACT OF
SEPTEMBER 24, 1789, 1 STAT. 73, 79, HAVE PROVIDED THAT WHENEVER ANY
PARTY ENTITLED TO REMOVE A SUIT SHALL FILE WITH THE STATE COURT A
PROPER PETITION FOR REMOVAL AND A BOND WITH GOOD AND SUFFICIENT SURETY,
IT SHALL THEN BE THE DUTY OF THE STATE COURT TO ACCEPT SUCH PETITION
AND BOND "AND PROCEED NO FURTHER IN THE CAUSE."  SECTION 265 HAS ALWAYS
BEEN DEEMED INAPPLICABLE TO REMOVAL PROCEEDINGS.  DIETZSCH V.
HUIDEKOPER, 103 U.S. 494; MADISONVILLE TRACTION CO. V. MINING CO., 196
U.S. 239.  THE TRUE RATIONALE OF THESE DECISIONS IS THAT THE REMOVAL
ACTS QUALIFY PRO TANTO THE ACT OF 1793.  SUBSEQUENT DECISIONS HAVE
CLARIFIED THE LOOSE GROUND ADVANCED IN FRENCH V. HAY, 22 WALL.  250,
253.  SEE KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226; TAYLOR AND
WILLIS, THE POWER OF FEDERAL COURTS TO ENJOIN PROCEEDINGS IN STATE
COURTS, 42 YALE L.J. 1169, 1174-75; COMPARE BRYANT V. ATLANTIC COAST
LINE R. CO., 92 F.2D 569, 571.    (3)  LIMITATION OF SHIPOWNERS'
LIABILITY.  THE ACT OF 1851 LIMITING THE LIABILITY OF SHIPOWNERS
PROVIDES THAT AFTER A SHIPOWNER TRANSFERS HIS INTEREST IN THE VESSEL TO
A TRUSTEE FOR THE BENEFIT OF THE CLAIMANTS, "ALL CLAIMS AND PROCEEDINGS
AGAINST THE OWNER OR OWNERS SHALL CEASE."  9 STAT. 635, 636.  BEING A
"SUBSEQUENT STATUTE" TO THE ACT OF 1793, THIS PROVISION OPERATES AS AN
IMPLIED LEGISLATIVE AMENDMENT TO IT.  PROVIDENCE & N.Y.S.S. CO. V. HILL
MFG. CO., 109 U.S. 578, 599; SEE ADMIRALTY RULE 51, 254 U.S., APPENDIX,
P. 26. 

(4)  INTERPLEADER.  THE INTERPLEADER ACT OF 1926, 44 STAT. 416,
AMENDED THE 1917 INTERPLEADER ACT, 39 STAT. 929, TO PROVIDE AS FOLLOWS:
"NOTWITHSTANDING ANY PROVISION OF THE JUDICIAL CODE TO THE CONTRARY,
SAID (DISTRICT) COURT SHALL HAVE POWER TO ISSUE ITS PROCESS FOR ALL
SUCH CLAIMANTS AND TO ISSUE AN ORDER OF INJUNCTION AGAINST EACH OF
THEM, ENJOINING THEM FROM INSTITUTING OR PROSECUTING ANY SUIT OR
PROCEEDING IN ANY STATE COURT OR IN ANY OTHER FEDERAL COURT  ...  "
SEE DUGAS V. AMERICAN SURETY CO., 300 U.S. 414, 428; TREINIES V.
SUNSHINE MINING CO., 308 U.S. 66, 74. 

(5)  FRAZIER-LEMKE ACT.  THE FILING OF A PETITION FOR RELIEF UNDER
THIS ACT SUBJECTS THE FARMER AND HIS PROPERTY, WHEREVER LOCATED, TO THE
"EXCLUSIVE JURISDICTION" OF THE FEDERAL COURT.  AND EXCEPT WITH THE
CONSENT OF THE COURT, SPECIFIED PROCEEDINGS AGAINST THE FARMER OR HIS
PROPERTY "SHALL NOT BE INSTITUTED, OR IF INSTITUTED AT ANY TIME PRIOR
TO THE FILING OF A PETITION UNDER THIS SECTION, SHALL NOT BE
MAINTAINED, IN ANY COURT  ...  " 47 STAT. 1473.  SEE KALB V.
FEUERSTEIN, 308 U.S. 433. 

THIRD.  THIS BRINGS US TO APPLICATIONS OF SEC. 265 APART FROM THESE
STATUTORY QUALIFICATIONS.  THE EARLY DECISIONS OF THIS COURT APPLIED
THE ACT OF 1793 AS A MATTER OF COURSE.  FN5  HOWEVER, A LINE OF CASES
BEGINNING WITH HAGAN V. LUCAS, 10 PET. 400, HOLDS THAT THE COURT,
WHETHER FEDERAL OR STATE, WHICH FIRST TAKES POSSESSION OF A RES
WITHDRAWS THE PROPERTY FROM THE REACH OF THE OTHER.  TAYLOR V. CARRYL,
20 HOW.  583, 597; FREEMAN V. HOWE, 24 HOW.  450.  SEE KLINE V. BURKE
CONSTRUCTION CO., 260 U.S. 226, 235:  "THE RANK AND AUTHORITY OF THE
(FEDERAL AND STATE) COURTS ARE EQUAL BUT BOTH COURTS CANNOT POSSESS OR
CONTROL THE SAME THING AT THE SAME TIME, AND ANY ATTEMPT TO DO SO WOULD
RESULT IN UNSEEMLY CONFLICT.  THE RULE, THEREFORE, THAT THE COURT FIRST
ACQUIRING JURISDICTION SHALL PROCEED WITHOUT INTERFERENCE FROM A COURT
OF THE OTHER JURISDICTION IS A RULE OF RIGHT AND OF LAW BASED UPON
NECESSITY, AND WHERE THE NECESSITY, ACTUAL OR POTENTIAL, DOES NOT
EXIST, THE RULE DOES NOT APPLY.  SINCE THAT NECESSITY DOES EXIST IN
ACTIONS IN REM AND DOES NOT EXIST IN ACTIONS IN PERSONAM, INVOLVING A
QUESTION OF PERSONAL LIABILITY ONLY, THE RULE APPLIES IN THE FORMER BUT
DOES NOT APPLY IN THE LATTER." 

THE ACT OF 1793 EXPRESSES THE DESIRE OF CONGRESS TO AVOID FRICTION
BETWEEN THE FEDERAL GOVERNMENT AND THE STATES RESULTING FROM THE
INTRUSION OF FEDERAL AUTHORITY INTO THE ORDERLY FUNCTIONING OF A
STATE'S JUDICIAL PROCESS.  THE RECIPROCAL DOCTRINE OF THE RES CASES IS
BUT AN APPLICATION OF THE REASON UNDERLYING THE ACT.  CONTEST BETWEEN
THE REPRESENTATIVES OF TWO DISTINCT JUDICIAL SYSTEMS OVER THE SAME
PHYSICAL PROPERTY WOULD GIVE RISE TO ACTUAL PHYSICAL FRICTION.  THE
RULE HAS BECOME WELL SETTLED, THEREFORE, THAT SEC. 265 DOES NOT
PRECLUDE THE USE OF THE INJUNCTION BY A FEDERAL COURT TO RESTRAIN STATE
PROCEEDINGS SEEKING TO INTERFERE WITH PROPERTY IN THE CUSTODY OF THE
COURT.  FN6  FARMERS' LOAN & TRUST CO. V. LAKE STREET R. CO., 177 U.S.
51, 61; KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, 229, 235; LION
BONDING CO. V. KARATZ, 262 U.S. 77, 88-89; SEE WARREN, FEDERAL AND
STATE COURT INTERFERENCE, 43 HARV. L. REV. 345, 359-66.  AND WHERE A
STATE COURT FIRST ACQUIRES CONTROL OF THE RES, THE FEDERAL COURTS ARE
DISABLED FROM EXERCISING ANY POWER OVER IT, BY INJUNCTION OR
OTHERWISE.  PALMER V. TEXAS, 212 U.S. 118. 

ANOTHER GROUP OF CASES IS SAID TO CONSTITUTE AN EXCEPTION TO SEC.
265, NAMELY, WHERE FEDERAL COURTS HAVE ENJOINED LITIGANTS FROM
ENFORCING JUDGMENTS FRAUDULENTLY OBTAINED IN THE STATE COURTS. 
MARSHALL V. HOLMES, 141 U.S. 589; SIMON V. SOUTHERN RAILWAY CO., 236
U.S. 115; ESSANAY FILM CO. V. KANE, 258 U.S. 358; ATCHISON, T. & S.F.
RY. CO. V. WELLS, 265 U.S. 101; WELLS FARGO & CO. V. TAYLOR, 254 U.S.
175.  IN THE SIMON CASE, MR. JUSTICE LAMAR UNDERTOOK TO RATIONALIZE
THIS CLASS OF CASES BY REGARDING A STATE COURT "PROCEEDING" AS
COMPLETED ONCE JUDGMENT IS SECURED, WITH THE RESULT THAT AN INJUNCTION
AGAINST LEVYING EXECUTION DOES NOT STAY A JUDICIAL "PROCEEDING."  236
U.S. AT 124.  BUT THIS CONSTRUCTION OF SEC. 265 WAS REJECTED IN HILL V.
MARTIN, 296 U.S. 393, 403:  "THAT TERM (PROCEEDINGS) IS COMPREHENSIVE. 
IT INCLUDES ALL STEPS TAKEN OR WHICH MAY BE TAKEN IN THE STATE COURT OR
BY ITS OFFICERS FROM THE INSTITUTION TO THE CLOSE OF THE FINAL
PROCESS.  IT APPLIES TO APPELLATE AS WELL AS TO ORIGINAL PROCEEDINGS;
AND IS INDEPENDENT OF THE DOCTRINE OF RES JUDICATA.  IT APPLIES ALIKE
TO ACTION BY THE COURT AND BY ITS MINISTERIAL OFFICERS; APPLIES NOT
ONLY TO AN EXECUTION ISSUED ON A JUDGMENT, BUT TO ANY PROCEEDING
SUPPLEMENTAL OR ANCILLARY TAKEN WITH A VIEW TO MAKING THE SUIT OR
JUDGMENT EFFECTIVE."  HOWEVER, THE OPINION CITES THE WELLS FARGO AND
ESSANAY FILM CASES IN A FOOTNOTE DEALING WITH "THE RECOGNIZED
EXCEPTIONS TO SEC. 265."  296 U.S. 403, N. 19.  THE FOUNDATION OF THESE
CASES IS THUS VERY DOUBTFUL.  HOWEVER, WE NEED NOT UNDERTAKE TO
REEXAMINE THEM HERE SINCE, IN ANY EVENT, THEY DO NOT GOVERN THE CASES
AT BAR.  FN7 

FOURTH.  WE COME, THEN, TO THE SO-CALLED "RELITIGATION" CASES, THE
FIRST OF WHICH IS DIAL V. REYNOLDS, 96 U.S. 340.  THE FACTS OF THE CASE
ARE SIMPLE:  COOPER WAS INDEBTED TO STAATSMAN.  TO SECURE THESE DEBTS
HE EXECUTED A MORTGAGE DEED OF TRUST UNDER WHICH DIAL WAS TRUSTEE. 
ASSERTING TITLE IN HIMSELF TO THE PROPERTY COVERED BY THE MORTGAGE,
REYNOLDS BROUGHT EJECTMENT AGAINST COOPER IN THE FEDERAL COURT.  ON
WRIT OF ERROR THIS COURT SET ASIDE A JUDGMENT IN REYNOLDS' FAVOR AND
HELD TITLE TO BE IN COOPER.  COOPER V. REYNOLDS, 10 WALL.  308, 321. 
REYNOLDS THEREAFTER DISMISSED HIS EJECTMENT ACTION IN THE FEDERAL COURT
AND BROUGHT A NEW ACTION AGAINST COOPER IN A TENNESSEE STATE COURT
BASED UPON THE CLAIM THUS PREVIOUSLY LITIGATED.  DIAL AND STAATSMAN,
JOINING COOPER AS A PARTY DEFENDANT, FILED SUIT IN THE FEDERAL COURT TO
FORECLOSE THE MORTGAGE AND TO ENJOIN REYNOLDS FROM FURTHER PROSECUTING
HIS ACTION IN THE STATE COURT.  THE LOWER COURT SUSTAINED REYNOLDS'
DEMURRER, AND THIS COURT AFFIRMED.  IT HELD THAT THE "GRAVAMEN" OF THE
BILLS WAS AN INJUNCTION TO PREVENT REYNOLDS FROM PROCEEDING IN THE
STATE COURT.  "SUCH AN INJUNCTION, EXCEPT UNDER THE BANKRUPT ACT, NO
COURT OF THE UNITED STATES CAN GRANT.  WITH THIS EXCEPTION, IT IS
EXPRESSLY FORBIDDEN BY LAW."  96 U.S. AT 341.  FN8 

LOONEY V. EASTERN TEXAS R. CO., 247 U.S. 214, WAS NOT A
"RELITIGATION" CASE.  THE TEXAS FEDERAL DISTRICT COURT, IN A SUIT
BROUGHT BY VARIOUS CARRIERS, GRANTED A PRELIMINARY INJUNCTION
RESTRAINING THE STATE ATTORNEY GENERAL FROM PROCEEDING TO ASSESS FINES
AND PENALTIES UPON THEM FOR COMPLYING WITH AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION.  THE ATTORNEY GENERAL NEVERTHELESS INSTITUTED
PROCEEDINGS IN A STATE COURT TO ENJOIN THE CARRIERS FROM COMPLYING WITH
THE COMMISSION'S ORDER, AND A SUPPLEMENTAL BILL WAS FILED IN THE
FEDERAL COURT TO STAY THE PROCEEDINGS.  THE DISTRICT COURT ISSUED THE
INJUNCTION, AND THIS COURT DISMISSED AN APPEAL UNDER SEC. 266, HOLDING
THAT THE INJUNCTION BELOW WAS NOT BASED UPON THE UNCONSTITUTIONALITY OF
THE TEXAS STATE STATUTES, BUT WAS GRANTED MERELY TO PROTECT ITS
JURISDICTION UNTIL THE SUIT BROUGHT BY THE CARRIERS WAS FINALLY
SETTLED.  THE CASE OBVIOUSLY DOES NOT RULE OURS.  SUPREME TRIBE OF BEN
HUR V. CAUBLE, 255 U.S. 356, HELD THAT A FEDERAL DISTRICT COURT, HAVING
RENDERED A DECREE IN A CLASS SUIT BROUGHT IN BEHALF OF ALL THE MEMBERS
OF A CERTAIN CLASS OF BENEFICIARIES IN A FRATERNAL ASSOCIATION, MAY
ENJOIN MEMBERS OF THE CLASS, FOUND TO BE BOUND BY THE DECREE, FROM
PROSECUTING SUITS IN THE STATE COURTS WHICH WOULD RELITIGATE QUESTIONS
SETTLED BY SUCH DECREE.  THE OPINION OF MR. JUSTICE DAY CONTAINS NO
REFERENCE TO EITHER THE ACT OF MARCH 2, 1793, OR TO DIAL V. REYNOLDS. 
THE OPINION IS DEVOTED ALMOST ENTIRELY TO A DISCUSSION OF WHETHER THE
FORMER DECREE IS RES JUDICATA IN THE STATE SUITS.  HAVING DETERMINED
THIS QUESTION IN THE AFFIRMATIVE, THE COURT DISPOSED OF THE REMAINING -
SEC. 265 - QUESTION IN ONE SENTENCE, CITING ONLY ONE CASE IN SUPPORT OF
ITS CONCLUSION, LOONEY V. EASTERN TEXAS R. CO., SUPRA, WHICH, AS WE
HAVE SEEN, WAS NOT A RELITIGATION CASE.  FN9  255 U.S. AT 367. 

FIFTH.  WE FIND, THEREFORE, THAT APART FROM CONGRESSIONAL
AUTHORIZATION, ONLY ONE "EXCEPTION" HAS BEEN IMBEDDED IN SEC. 265 BY
JUDICIAL CONSTRUCTION, TO WIT, THE RES CASES.  THE FACT THAT ONE
EXCEPTION HAS FOUND ITS WAY INTO SEC. 265 IS NO JUSTIFICATION FOR
MAKING ANOTHER.  FURTHERMORE, THE RES EXCEPTION, HAVING ITS ROOTS IN
THE SAME POLICY FROM WHICH SPRANG SEC. 265, HAS HAD AN UNINTERRUPTED
AND FIRMLY ESTABLISHED ACCEPTANCE IN THE DECISIONS.  THE RULE OF THE
RES CASES WAS UNEQUIVOCALLY ON THE BOOKS WHEN CONGRESS REENACTED THE
ORIGINAL SEC. 5 OF THE ACT OF 1793, FIRST BY THE REVISED STATUTES OF
1874 AND LATER BY THE JUDICIAL CODE IN 1911. 

IN STRIKING CONTRAST ARE THE "RELITIGATION CASES."  LOOSE LANGUAGE
AND A SPORADIC, ILL-CONSIDERED DECISION CANNOT BE HELD TO HAVE IMBEDDED
IN OUR LAW A DOCTRINE WHICH SO PATENTLY VIOLATES THE EXPRESSED
PROHIBITION OF CONGRESS.  FN10  WE ARE NOT DEALING HERE WITH A SETTLED
COURSE OF DECISIONS, ERRONEOUS IN ORIGIN BUT AROUND WHICH SUBSTANTIAL
INTERESTS HAVE CLUSTERED.  ONLY A FEW RECENT AND EPISODIC UTTERANCES
FURNISH A TENUOUS BASIS FOR THE EXCEPTION WHICH WE ARE NOW ASKED
EXPLICITLY TO SANCTION.  WHATEVER JUSTIFICATION THERE MAY BE FOR
TURNING PAST ERROR INTO LAW WHEN REASONABLE EXPECTATIONS WOULD THEREBY
BE DEFEATED, NO SUCH JUSTIFICATION CAN BE URGED ON BEHALF OF A
PROCEDURAL DOCTRINE IN THE DISTRIBUTION OF JUDICIAL POWER BETWEEN
FEDERAL AND STATE COURTS.  IT DENIES REALITY TO SUGGEST THAT LITIGANTS
HAVE SHAPED THEIR CONDUCT IN RELIANCE UPON SOME LOOSE TALK IN PAST
DECISIONS IN THE APPLICATION OF SEC. 265 OR, MORE CONCRETELY, UPON
ERRONEOUS IMPLICATIONS DRAWN FROM LOONEY V. EASTERN TEXAS R. CO.,
SUPRA, AND SUPREME TRIBE OF BEN-HUR V. CAUBLE, SUPRA.  COMPARE
HELVERING V. HALLOCK, 309 U.S. 106, 119-20. 

IT IS INDULGING IN THE MEREST FICTION TO SUGGEST THAT THE DOCTRINE
WHICH FOR THE FIRST TIME WE ARE ASKED TO PRONOUNCE WITH OUR EYES OPEN
AND IN THE LIGHT OF FULL CONSIDERATION, WAS SO OBVIOUSLY AND FIRMLY
PART OF THE TEXTURE OF OUR LAW THAT CONGRESS IN EFFECT ENACTED IT
THROUGH ITS SILENCE.  THERE IS NO OCCASION HERE TO REGARD THE SILENCE
OF CONGRESS AS MORE COMMANDING THAN ITS OWN PLAINLY AND UNMISTAKABLY
SPOKEN WORDS.  THIS IS NOT A SITUATION WHERE CONGRESS HAS FAILED TO ACT
AFTER HAVING BEEN REQUESTED TO ACT OR WHERE THE CIRCUMSTANCES ARE SUCH
THAT CONGRESS WOULD ORDINARILY BE EXPECTED TO ACT.  THE PROVISIONS OF
SEC. 265 HAVE NEVER BEEN THE SUBJECT OF COMPREHENSIVE LEGISLATIVE
REEXAMINATION.  EVEN THE EXCEPTIONS REFERABLE TO LEGISLATION HAVE BEEN
INCIDENTAL FEATURES OF OTHER STATUTORY SCHEMES, SUCH AS THE REMOVAL AND
INTERPLEADER ACTS.  THE EXPLICIT AND COMPREHENSIVE POLICY OF THE ACT OF
1793 HAS BEEN LEFT INTACT.  TO FIND SIGNIFICANCE IN CONGRESSIONAL
NONACTION UNDER THESE CIRCUMSTANCES IS TO FIND SIGNIFICANCE WHERE THERE
IS NONE. 

FEDERAL COURTS EQUITY POWERS POSSESSED BY ANGLO-AMERICAN COURTS.  AS
PART OF THE DELICATE ADJUSTMENTS REQUIRED BY OUR FEDERALISM, CONGRESS
HAS RIGOROUSLY CONTROLLED THE "INFERIOR COURTS" IN THEIR RELATION TO
THE COURTS OF THE STATES.  THE UNITARY SYSTEM OF THE COURTS OF ENGLAND
IS SAVED THESE PROBLEMS. 

THE GUIDING CONSIDERATION IN THE ENFORCEMENT OF THE CONGRESSIONAL
POLICY WAS EXPRESSED BY MR. JUSTICE CAMPBELL, FOR THE COURT, IN TAYLOR
V. CARRYL, 20 HOW.  583, 597: 

"THE LEGISLATION OF CONGRESS, IN ORGANIZING THE JUDICIAL POWERS OF
THE UNITED STATES, EXHIBITS MUCH CIRCUMSPECTION IN AVOIDING OCCASIONS
FOR PLACING THE TRIBUNALS OF THE STATES AND OF THE UNION IN ANY
COLLISION." 

WE MUST BE SCRUPULOUS IN OUR REGARD FOR THE LIMITS WITHIN WHICH
CONGRESS HAS CONFINED THE AUTHORITY OF THE COURTS OF ITS OWN CREATION. 
REVERSED. 

FN1  PLEADING A FEDERAL DECREE AS RES JUDICATA IN A STATE SUIT RAISES
A FEDERAL QUESTION REVIEWABLE IN THIS COURT UNDER SEC. 237(B) OF THE
JUDICIAL CODE, 43 STAT. 937, 28 U.S.C. SEC. 344(B).  DUPASSEUR V.
ROCHEREAU, 21 WALL.  130; DEPOSIT BANK V. FRANKFORT, 191 U.S. 499;
VIRGINIA-CAROLINA CHEMICAL CO. V. KIRVEN, 215 U.S. 252; STOLL V.
GOTTLIEB, 305 U.S. 165, 167. 

FN2  FORMULATED AS A CONTRACTION OF THE FEDERAL COURTS' EQUITY
JURISDICTION, THE ACT OF 1793 "LIMITS THEIR GENERAL EQUITY POWERS IN
RESPECT TO THE GRANTING OF A PARTICULAR FORM OF EQUITABLE RELIEF; THAT
IS, IT PREVENTS THEM FROM GRANTING RELIEF BY WAY OF INJUNCTION IN THE
CASES INCLUDED WITHIN ITS INHIBITIONS."  SMITH V. APPLE, 264 U.S. 274,
279.  SEE TREINIES V. SUNSHINE MINING CO., 308 U.S. 66, 74. 

FN3  THE LAST CLAUSE OF SEC. 5 OF THE ACT OF 1793, OUTLAWING THE
FAMILIAR EX PARTE INJUNCTION, AFFORDS ANOTHER ILLUSTRATION OF HOSTILITY
TO CHANCERY PRACTICE:  "NOR SHALL SUCH WRIT (OF INJUNCTION) BE GRANTED
IN ANY CASE WITHOUT REASONABLE PREVIOUS NOTICE TO THE ADVERSE PARTY, OR
HIS ATTORNEY, OF THE TIME AND PLACE OF MOVING FOR THE SAME."  1 STAT.
335.    FN4  SECTION 262 OF THE JUDICIAL CODE, 36 STAT. 1162, 28 U.S.C.
SEC. 377, IS DERIVED FROM SEC. 14 OF THE JUDICIARY ACT OF 1789, 1 STAT.
81, WHICH PROVIDED THAT THE "COURTS OF THE UNITED STATES SHALL HAVE
POWER TO ISSUE WRITS OF SCIRE FACIAS, HABEAS CORPUS, AND ALL OTHER
WRITS NOT SPECIALLY PROVIDED FOR BY THE STATUTE, WHICH MAY BE NECESSARY
FOR THE EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND AGREEABLE TO
THE PRINCIPLES AND USAGES OF LAW."  THE GENERAL POWERS THUS GIVEN TO
THE FEDERAL COURTS WERE OBVIOUSLY LIMITED BY THE SUBSEQUENT ENACTMENT
OF THE SPECIFIC PROHIBITORY PROVISIONS OF THE ACT OF 1793.    FN5  THE
FIRST CASE ARISING UNDER THE PROVISION WAS DIGGS & KEITH V. WOLCOTT, 4
CRANCH 179(1807), WHERE THE APPELLANTS BROUGHT AN ACTION AT LAW ON
VARIOUS PROMISSORY NOTES IN A STATE COURT.  WHILE THIS ACTION WAS STILL
PENDING, THE DEFENDANT FILED A BILL IN THE STATE CHANCERY COURT FOR
CANCELLATION OF THE NOTES.  THE LATTER SUIT WAS REMOVED TO THE FEDERAL
CIRCUIT COURT WHICH CANCELLED THE NOTES AND ENJOINED THE FURTHER
PROSECUTION OF THE STATE ACTION AT LAW.  THE REPORT OF THE PROCEEDING
IN THIS COURT STATES MERELY THAT "THE COURT BEING OF OPINION THAT A
CIRCUIT COURT OF THE UNITED STATES HAD NOT JURISDICTION TO ENJOIN
PROCEEDINGS IN A STATE COURT, REVERSED THE DECREE."  IN HIS
COMMENTARIES ON AMERICAN LAW (1826) VOL. 1, P. 386, CHANCELLOR KENT,
STATING THAT THE DECISION IN THE CASE "IS NOT TO BE CONTESTED," REFERS
TO IT AS ILLUSTRATIVE OF A SITUATION "IN WHICH ANY CONTROL BY THE
FEDERAL OVER THE STATE COURTS, OTHER THAN BY MEANS OF THE ESTABLISHED
APPELLATE JURISDICTION, HAS EQUALLY BEEN PREVENTED."  PECK V. JENNESS,
7 HOW.  612, 625, HOLDING THAT A FEDERAL COURT SITTING IN BANKRUPTCY
COULD NOT DISCHARGE THE LIEN OF A PRIOR ATTACHMENT MADE UNDER STATE
LAW, WAS THE FIRST CASE WHICH EXPRESSLY RELIED UPON THE ACT OF 1793. 
IN ORTON V. SMITH, 18 HOW.  263, 266, THE COURT HELD IT ERROR TO ENJOIN
A STATE ACTION TO ESTABLISH TITLE TO CERTAIN LAND.  "THE COURTS OF THE
UNITED STATES HAVE NO SUCH POWER OVER SUITORS IN A STATE COURT." 

FN6  THE EXTENT TO WHICH A FEDERAL COURT'S EXCLUSIVE CONTROL OVER THE
RES MAY REQUIRE USE OF THE INJUNCTION TO EFFECTUATE ITS DECREES IN REM
IS ILLUSTRATED BY RIVERDALE MILLS V. MANUFACTURING CO., 198 U.S. 188;
JULIAN V. CENTRAL TRUST CO., 193 U.S. 93; AND LOCAL LOAN CO. V. HUNT,
292 U.S. 234, 241.  CF. EX PARTE BALDWIN, 291 U.S. 610, 615. 

FN7  FOR SIMILAR REASONS WE NEED NOT HERE CONSIDER CASES LIKE EX
PARTE YOUNG, 209 U.S. 123, AND GUNTER V. ATLANTIC COAST LINE, 200 U.S.
273, WITH WHICH COMPARE HALE V. BIMCO TRADING CO., 306 U.S. 375, 378. 

FN8  THE COURT ALSO HELD THAT IN A FORECLOSURE PROCEEDING THE
COMPLAINANT CANNOT JOIN A THIRD PERSON WHO CLAIMS ADVERSELY TO THE
MORTGAGOR AND MORTGAGEE, AND THAT CONSEQUENTLY THERE WAS A MISJOINDER
OF PARTIES.  96 U.S. AT 341.  THESE GROUNDS FOR DECISION WERE, OF
COURSE, ALTERNATIVE, AND EITHER ALONE WAS SUFFICIENT TO DISPOSE OF THE
CASE.  HOWEVER, THEY WERE ENTIRELY SEPARATE AND DISTINCT, AND THERE IS
NO BASIS FOR ANY INFERENCE THAT THE COURT MIGHT HAVE UPHELD AN
INJUNCTION IF REYNOLDS HAD BEEN PROPERLY JOINED.  NOR NEED WE CONSIDER
COMMON-LAW REFINEMENTS IN ACTIONS FOR EJECTMENT, FOR THE COURT WENT
EXPLICITLY ON ITS DUTY TO OBEY THE ACT OF 1793. 

FN9  ROOT V. WOOLWORTH, 150 U.S. 401, IS ERRONEOUSLY REGARDED AS
ILLUSTRATING A "RELITIGATION" EXCEPTION TO SEC. 265.  THE CASE HOLDS
MERELY THAT COURTS OF EQUITY HAVE JURISDICTION TO "EFFECTUATE THEIR OWN
DECREES BY INJUNCTIONS OR WRITS OF ASSISTANCE IN ORDER TO AVOID THE
RELITIGATION OF QUESTIONS ONCE SETTLED BETWEEN THE SAME PARTIES."  150
U.S. AT 411-12.  THE COURT DID NOT UPHOLD A FEDERAL INJUNCTION AGAINST
A STATE SUIT TO RELITIGATE A CLAIM ALREADY SETTLED BY A PREVIOUS
FEDERAL DECREE - NO SUCH STATE SUIT HAD BEEN BROUGHT.  CONSEQUENTLY,
THERE WAS NO OCCASION TO CONSIDER THE APPLICABILITY OF SEC. 265.  THE
"FIRST COME, FIRST SERVED" RATIONALE OF CASES LIKE PROUT V. STARR, 188
U.S. 537, WAS DISCARDED IN KLINE V. BURKE CONSTRUCTION CO., 260 U.S.
226, 235.  CF. HAINES V. CARPENTER, 91 U.S. 254, 257. 

FN10  THERE IS NO WARRANT FOR THE ASSUMPTION THAT, IN THE PROPOSALS
FOR THE JUDICIAL CODE OF 1911, CONGRESS HAD BEFORE IT THE
"RELITIGATION" EXCEPTION AS SETTLED DOCTRINE, AND THAT BY SEC. 265 GAVE
IT LEGISLATIVE CONFIRMATION.  THE REPORT OF THE SPECIAL JOINT COMMITTEE
ON REVISION AND CONDIFICATION OF THE LAWS OF THE UNITED STATES
ANNOTATED THE ACT OF 1793 WITH CITATIONS TO TWENTY-SIX DECISIONS OF
THIS COURT.  SEN. REPT. NO. 388, 61ST CONG., 2D SESS., P. 470.  YET NO
REFERENCE WAS MADE TO FOUR OF THE FIVE DECISIONS OF THIS COURT PRIOR TO
THE JUDICIAL CODE WHICH ARE SUPPOSED TO JUSTIFY THE "RELITIGATION"
DOCTRINE: ROOT V. WOOLWORTH, 150 U.S. 401; PROUT V. STARR, 188 U.S.
537; RIVERDALE MILLS V. MANUFACTURING CO., 198 U.S. 188; GUNTER V.
ATLANTIC COAST LINE, 200 U.S. 273.  (AS WE HAVE ALREADY SEEN, "REMOVAL"
CASES LIKE FRENCH V. HAY, 22 WALL.  250, AND DIETZSCH V. HUIDEKOPER,
103 U.S. 494, REST UPON AN ENTIRELY DIFFERENT FOOTING.)  NONE OF THE
REPORTS SUBMITTED TO CONGRESS CONTAINS ANY DISCUSSION OF SEC. 5 OF THE
ACT OF 1793 AND THE DECISIONS CONSTRUING IT.  SEE H. REPT. NO. 818,
61ST CONG., 2D SESS., REFERRING TO H. DOC. NO. 783, 61ST CONG., 2D
SESS.; SEN. REPT. NO. 388, 61ST CONG., 2D SESS.; FINAL REPORT OF THE
COMMISSION TO REVISE AND CODIFY THE LAWS OF THE UNITED STATES (1906),
PP. 29, 244.  NOR DO THE DEBATES DISCLOSE ANY CONSIDERATION OF THE
QUESTION.  SEE 45 CONG. REC., PTS.  III AND IV, AND 46 CONG. REC.,
PTS.  I-V, PASSIM. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
NO. 19. 

MR. JUSTICE REED, DISSENTING: 

THE CONTROLLING ISSUE IN BOTH THE TOUCEY AND THE PHOENIX FINANCE
CASES IS THE POWER OF A FEDERAL COURT TO PROTECT THOSE WHO HAVE
OBTAINED ITS DECREES AGAINST AN EFFORT TO FORCE RELITIGATION OF THE
SAME CAUSES OF ACTION IN THE STATE COURTS.  QUESTIONS OF RES JUDICATA
SEEM INAPPOSITE FOR THE CONCLUSION.  WE ARE NOT CONCERNED IN EITHER
CASE WITH THE EFFECT OF THE DECREES IF AND WHEN THEY MIGHT BE PLEADED
IN THE STATE ACTIONS.  SINCE FEDERAL JURISDICTION IN EACH CASE DEPENDED
UPON DIVERSITY, THEIR EFFECT AS A PLEADED BAR TO RECOVERY IN THE STATE
SUITS WOULD DEPEND UPON THE FAITH AND CREDIT BY LAW OR USAGE GIVEN LIKE
JUDGMENTS OF COURTS OF THE STATE CONTAINING THE FEDERAL DISTRICT.  FN1
BUT WHEN THE PRELIMINARY QUESTION IS THE MEANING AND APPLICATION OF THE
FEDERAL DECREE AS A BASIS FOR A CONCLUSION AS TO WHETHER OR NOT THE
DECREE SHALL BE ENFORCED BY FURTHER STEPS, IT IS ENTIRELY A FEDERAL
QUESTION.  IT IS IMMATERIAL FROM THAT POINT OF VIEW WHETHER THE FEDERAL
JURISDICTION WAS BOTTOMED ORIGINALLY ON DIVERSITY, OR THE CONSTITUTION
OR LAWS OF THE UNITED STATES.  THE POWER TO GIVE EFFECT TO THE
JUDGMENTS OF FEDERAL COURTS RESTS WITH CONGRESS.  FN2  IT HAS EXERCISED
THAT POWER FOR GENERAL PURPOSES BY JUDICIAL CODE SEC. 262.  FN3 

AS ORIGINALLY ENACTED, SEC. 265 WAS A SINGLE LINE IN A TWO PAGE ACT
CONCERNING PRACTICE IN THE FEDERAL COURTS, ACT OF MARCH 2, 1793, C. 22,
SEC. 5, 1 STAT. 334.  THE ACT'S DISCONNECTED PROVISIONS WERE AMENDMENTS
TO THE STATUTE ESTABLISHING JUDICIAL COURTS OF THE UNITED STATES.  THE
SHORT SECTION IN WHICH SEC. 265 APPEARED ON THE ONE HAND ENLARGED
EQUITY POWERS OF JUDGES OF THIS COURT BY AUTHORIZING THEM TO ISSUE
WRITS OF NE EXEAT AND INJUNCTION, AND ON THE OTHER RESTRICTED THE USE
OF RESTRAINING ORDERS WITHOUT NOTICE.  LEFT TO THE FOUR CORNERS OF THE
ACT, FOR LACK OF LEGISLATIVE MATERIALS, FOR DEDUCTIONS AS TO THE
PURPOSE AND INTENTION OF THE ENACTING CONGRESS, AND FACED WITH THE
ABSOLUTE PROHIBITION OF ITS WORDS, IT MIGHT WELL BE CONCLUDED THAT THE
INTENTION WAS TO BAR AN INJUNCTION RUNNING AGAINST THE COURT ITSELF AS
DISTINGUISHED FROM THE PARTIES.  FN4  THE FACT THAT COURTS OF EQUITY
HAD LONG EXERCISED THE POWER TO ENTERTAIN BILLS TO CARRY THEIR DECREES
INTO EXECUTION BY INJUNCTION AGAINST THE PARTIES ADDS STRENGTH TO SUCH
A SUPPOSITION.  FN5  SUCH NEEDED POWERS WOULD NOT BE LIGHTLY
WITHDRAWN. 

WE ARE NOT RELEGATED TO SUCH SPECULATIONS, HOWEVER.  THIS PROVISION
IN ONE FORM OR ANOTHER HAS BEEN EMBODIED IN OUR STATUTE LAW SINCE
1793.  IT WAS CONTINUED BY THE ADOPTION OF THE REVISED STATUTES OF 1878
AND THE JUDICIAL CODE OF 1911.  IT AND THE CASES INTERPRETING IT HAVE
BEEN WOVEN INTO THE FABRIC OF OUR LAW THROUGH THE DECADES.  WHAT
CHANGES WOULD HAVE BEEN MADE IN ITS FORM TO MEET THE NEEDS OF OUR
EXPANDING JURISPRUDENCE, WERE IT NOT FOR THE FLEXIBILITY SUPPLIED BY
JUDICIAL INTERPRETATION, WE CAN ONLY CONJECTURE.  CERTAINLY WHEN THE
CODE OF 1911 RESTATED ITS TERMS, THE CONGRESS TOOK INTO CONSIDERATION
WHAT HAD BY THAT TIME COME TO BE ITS ACCEPTED INTERPRETATION.  GRANTED
THAT SEC. 265 IS NOT A SENTENCE OR SECTION OF A LEGISLATIVE SCHEME
WHOSE MEANING IS TO BE SOUGHT IN THE PURPOSE OF THE ENTIRE ENACTMENT OR
SERIES OF ENACTMENTS,  FN6  WE ARE NEVERTHELESS LED BY THE JUDICIAL
HISTORY INTERVENING SINCE ITS PASSAGE TO LOOK BEYOND THE LITERAL
LANGUAGE AND GIVE WEIGHT TO THOSE DECISIONS WHICH HAD ADDED TO ITS
CONTENT BEFORE THE REENACTMENT IN THE JUDICIAL CODE.  IN THE SENATE
REPORT OF THE SPECIAL JOINT COMMITTEE ON REVISION AND CODIFICATION NO
CHANGE IN LANGUAGE WAS SUGGESTED.  YET THE COMMITTEE, AS INDICATIVE OF
THE THEN STATE OF THE LAW, CITED NUMEROUS CASES WHICH ARE RELITIGATION
CASES AND ARE ANALYZED OR REFERRED TO LATER IN THIS OPINION.  FN7  WE
ARE ALL THE MORE PERSUADED TO BELIEVE THAT THE CODE OF 1911 INTENDED TO
ACCEPT THIS EARLY LEGISLATION WITH ITS JUDICIAL GLOSS BECAUSE OF THE
ALTERNATIVE OFFERED.  THIS ALTERNATIVE IS THAT A FEDERAL JUDGMENT
ENTERED PERHAPS AFTER YEARS OF EXPENSE IN MONEY AND ENERGY AND AFTER
THE PRODUCTION OF THOUSANDS OF PAGES OF EVIDENCE COMES TO NOTHING THAT
IS FINAL.  IT IS TO BE ONLY THE BASIS FOR A PLEA OF RES JUDICATA WHICH
IS TO BE EXAMINED BY ANOTHER COURT, UNFAMILIAR WITH THE RECORD ALREADY
MADE, TO DETERMINE WHETHER THE ISSUES WERE OR WERE NOT SETTLED BY THE
FORMER ADJUDICATION.  FN8  WE, TOO, DESIRE THAT THE DIFFICULTIES INNATE
IN THE FEDERAL SYSTEM OF GOVERNMENT MAY BE SMOOTHED AWAY WITHOUT A
CLASH OF SOVEREIGNTIES, BUT WE FIND NO CAUSE FOR ALARM IN AFFIRMING A
COURT WHICH FORBIDS PARTIES BOUND BY ITS DECREE TO FIGHT THE BATTLE
OVER ON ANOTHER DAY AND FIELD.  FN9  WE SHOULD NOT, IN REACHING FOR
THEORETICAL SYMMETRY, HAMPER THE EFFICIENCY AND NEEDLESSLY BREAK THE
CONTINUITY OF OUR JUDICIAL METHODOLOGY.  A DECREE FORBIDDING A DEFEATED
PARTY FROM SETTING UP ANY RIGHT, ANYWHERE, BASED UPON CLAIMS ADJUDGED,
IS THE USUAL FORM WHERE INJUNCTIONS ARE APPROPRIATE FOR DETERMINING
CONTROVERSIES.  FN10 

THE COURTS PROPERLY ARE HESITANT TO DEPART FROM LITERALISM IN
INTERPRETING A STATUTE.  FN11 STRONG EQUITIES DO INDUCE DEPARTURE FROM
THE ORDINARY COURSE WHERE THE PURPOSE OF THE CONGRESS APPEARS PLAIN. 
FN12  IT IS HARD TO CONCEIVE OF A STATUTE, NEW OR OLD, WHICH HAS A
MEANING TOTALLY DISASSOCIATED FROM SUPPORTING LEGISLATION OR THE BODY
OF ADJUDICATIONS WITHIN ITS AMBIT.  THIS STATUTE IS IN A POSTURE MUCH
MORE FAVORABLE FOR THE INTERPRETATION THAT IT AUTHORIZES INJUNCTIONS
AGAINST RELITIGATION IN STATE COURTS THAN WERE THE STATUTES CONSTRUED
IN ANY OF THE CASES CITED IN THE PRECEDING NOTE FOR THE INTERPRETATION
GIVEN THEM.  IN FACT, WE CONCLUDE THAT ITS RESTATEMENT IN THE CODE OF
1911, WITH THE DECISIONS NOW TO BE EXAMINED IN EXISTENCE, NECESSITATES
THE INTERPRETATION HERE ADVOCATED.  ADDITIONAL DECISIONS SINCE 1911 AND
THE FAILURE OF CONGRESS TO REPUDIATE THIS INTERPRETATION ADD SOMETHING
OF SUBSTANCE TO THIS ARGUMENT. 

THERE EXISTS NO DIVERGENCE OF VIEW IN REGARD TO THE POWER OF FEDERAL
COURTS TO ENJOIN PROCEEDINGS IN STATE COURTS WHERE THE STATE ACTION MAY
EMBARRASS OR INTERFERE WITH THE FEDERAL COURT'S PRIOR CONTROL OVER A
RES WHICH IS IN ITS POSSESSION.  FN13  THAT IS AN EXCEPTION TO SEC.
265.  EQUALLY FIRMLY EMBEDDED IS THE POWER, LONG EXERCISED AS
COMPATIBLE WITH SEC. 265, OF CARRYING INTO EXECUTION BY INJUNCTION
AGAINST STATE ACTIONS THE EQUITABLE DECREES WHICH HAVE SETTLED RIGHTS
OR CLAIMS BETWEEN THE PARTIES TO THE FEDERAL LITIGATION.  THIS MIGHT BE
SAID TO BE AUXILIARY TO THE PROTECTIVE JURISDICTION OVER PROPERTY IN
THE POSSESSION OF A COURT.  INASMUCH, HOWEVER, AS THE CASES HEREAFTER
CITED CONCERN RIGHTS ARISING FROM CLAIMS ALREADY ADJUDICATED, AND
SINCE, IN THE CASES WHERE A RES WAS AT ONE TIME INVOLVED, THE PROPERTY
WAS NO LONGER IN THE POSSESSION OF THE COURT ISSUING THE INJUNCTION,
THE THEORY OF PREVENTING AN UNSEEMLY CLASH OVER PHYSICAL POSSESSION HAS
NO BASIS.  THE PRINCIPLE FOR WHICH THE FOLLOWING AUTHORITIES STAND IS
THAT A COURT HAS THE RIGHT TO EXECUTE ITS DECREES TO AVOID RELITIGATION
AND FORCED RELIANCE ON RES JUDICATA.  THE PROCEEDINGS, AS WILL BE MADE
TO APPEAR LATER, WHICH WERE SUPPLEMENTED BY THE ORDERS PROHIBITING
STATE SUITS HERE UNDER REVIEW, FALL WELL WITHIN THE LIMITS OF THIS
HITHERTO WELL RECOGNIZED CONCEPTION. 

AS EARLY AS 1893 THIS COURT DECLARED, IN ROOT V. WOOLWORTH, 150 U.S.
401, 411, THAT THE "JURISDICTION OF COURTS OF EQUITY TO INTERFERE AND
EFFECTUATE THEIR OWN DECREES BY INJUNCTIONS OR WRITS OF ASSISTANCE IN
ORDER TO AVOID THE RELITIGATION OF QUESTIONS ONCE SETTLED BETWEEN THE
SAME PARTIES, IS WELL SETTLED."  ROOT, THE PARTY ENJOINED BY THE
ORIGINAL DECREE, ASSERTED RIGHTS WHICH WOULD REQUIRE RELITIGATION OF
SETTLED ISSUES.  ACCORDINGLY HE WAS ENJOINED ON SUPPLEMENTAL BILL,
INTER ALIA, "FROM BRINGING ANY ACTION OR ACTIONS TOUCHING THE TITLE TO
OR POSSESSION OF THE SAID PREMISES  ...  "  UNTIL DISSOLVED, THAT
INJUNCTION FORBADE PROCEEDINGS IN STATE AND FEDERAL COURTS ALIKE. 
ALTHOUGH SEC. 265 WAS NOT DISCUSSED, THE CASE IS CITED AS A CONVENIENT
SUMMARY OF THE THEN LAW, AND BECAUSE IT PROMPTLY BECAME A PRECEDENT FOR
ENFORCEMENT OF DECREES EVEN WHEN THE PROBLEM OF SEC. 265 WAS RAISED. 
THE AUTHORITY OF THIS CASE HAS NOT BEEN DOUBTED UNTIL NOW.    PROUT V.
STARR, 188 U.S. 537, 544, FORBADE A STATE SUIT IN VIOLATION OF A
FEDERAL COURT STIPULATION FOR A DECREE, TREATED THE STIPULATION AS A
DECREE, AND ENJOINED AN ACTION IN PERSONAM IN THE STATE COURT FOR THE
COLLECTION OF PENALTIES UNDER AN UNCONSTITUTIONAL STATUTE.  THE STATE
ACTION WAS IN VIOLATION OF THE ORIGINAL FEDERAL DECREE.  THIS COURT
SAID:  "THE JURISDICTION OF THE CIRCUIT COURT COULD NOT BE DEFEATED OR
IMPAIRED BY THE INSTITUTION, BY ONE OF THE PARTIES, OF SUBSEQUENT
PROCEEDINGS, WHETHER CIVIL OR CRIMINAL, INVOLVING THE SAME LEGAL
QUESTIONS, IN THE STATE COURT."    IN 193 U.S. APPEARED THE CASE OF
JULIAN V. CENTRAL TRUST COMPANY.  A RAILROAD PROPERTY IN NORTH CAROLINA
HAD BEEN SOLD UNDER FORECLOSURE PROCEEDINGS IN THE FEDERAL CIRCUIT
COURT.  THE DECREE WAS THAT THE PROPERTY BE SOLD FREE OF ALL CLAIMS OF
PARTIES AND THE JUDICIAL SALE WAS CONFIRMED TO THE SOUTHERN RAILWAY
COMPANY.  SOME YEARS LATER A CAUSE OF ACTION AROSE WHICH WAS PROSECUTED
TO JUDGMENT IN A STATE COURT AGAINST THE ORIGINAL MORTGAGOR WITHOUT
NOTICE TO OR CLAIM AGAINST THE PURCHASER, THE SOUTHERN.  IN THE FACE OF
A THREAT TO SELL THE PROPERTY FORMERLY CONVEYED BY THE FEDERAL DECREE,
THE CIRCUIT COURT ENJOINED THE STATE PROCEEDINGS.  THIS COURT SAID, PP.
112, 114: "IN SUCH CASE WE ARE OF OPINION THAT A SUPPLEMENTAL BILL MAY
BE FILED IN THE ORIGINAL SUIT WITH A VIEW TO PROTECTING THE PRIOR
JURISDICTION OF THE FEDERAL COURT AND TO RENDER EFFECTUAL ITS DECREE. 
...  IN SUCH CASES WHERE THE FEDERAL COURT ACTS IN AID OF ITS OWN
JURISDICTION AND TO RENDER ITS DECREE EFFECTUAL, IT MAY,
NOTWITHSTANDING SEC. 720, REV. STAT., (SEC. 265 J.C.)  RESTRAIN ALL
PROCEEDINGS IN A STATE COURT WHICH WOULD HAVE THE EFFECT OF DEFEATING
OR IMPAIRING ITS JURISDICTION.  ...  IT IS CONCEDED THAT THE FEDERAL
RIGHT COULD BE SET UP IN THE STATE COURT FROM WHICH THE EXECUTION
ISSUED, AND, IF DENIED, THE ULTIMATE RIGHTS OF THE PARTIES CAN BE
DETERMINED UPON WRIT OF ERROR TO THIS COURT.  IN THE VIEW WE HAVE TAKEN
OF THIS CASE THE FEDERAL COURT HAD NOT LOST ITS JURISDICTION TO PROTECT
THE PURCHASER AT ITS SALE UPON DIRECT PROCEEDINGS SUCH AS ARE NOW
BEFORE US."  FN14 

RIVERDALE MILLS V. MANUFACTURING CO., 198 U.S. 189, FOLLOWED THE
ESTABLISHED DOCTRINE.  THE RIVERDALE MILLS ACQUIRED PROPERTY BY
JUDICIAL SALE IN THE FEDERAL COURT.  A STATE PROCEEDING LATER WAS BEGUN
BY PARTIES TO THE FEDERAL FORECLOSURE ALLEGING THE INVALIDITY OF THE
SALE AND SEEKING POSSESSION OF THE PROPERTY.  RIVERDALE THEN FILED AN
ANCILLARY BILL IN THE ORIGINAL FORECLOSURE SUIT FOR AN INJUNCTION
AGAINST PROSECUTION OF THE STATE SUIT.  AGAINST THE CLAIMED PROTECTION
OF R.S. SEC. 720(SEC.  265 J.C.), P. 193, IT WAS HELD HERE THAT A
FEDERAL COURT MAY "PROTECT THE TITLE WHICH IT HAS DECREED AS AGAINST
EVERY ONE A PARTY TO THE ORIGINAL SUIT AND PREVENT THAT PARTY FROM
RELITIGATING THE QUESTIONS OF RIGHT WHICH HAVE ALREADY BEEN
DETERMINED."  P. 195. 

IT IS QUITE CLEAR THAT THE COURT IN BOTH THE JULIAN AND THE RIVERDALE
CASES WAS INTENT NOT ON PROTECTING A RES, SINCE THAT HAD LONG PASSED
FROM ITS HANDS, BUT ON AVOIDING RELITIGATION BY EXECUTING ITS DECREES. 
THIS APPEARS PARTICULARLY FROM THEIR RELIANCE UPON FRENCH V. HAY, 22
WALL.  250; DIETZSCH V. HUIDEKOPER, 103 U.S. 494; AND SHARON V. TERRY,
36 F. 337.  IN THE FRENCH CASE NO RES WAS INVOLVED.  IT WAS A FEDERAL
INJUNCTION AGAINST THE ENFORCEMENT OF A JUDGMENT OF A STATE COURT
OBTAINED IN A STATE ACTION AFTER REMOVAL OF A RELATED BUT SEPARATE
STATE SUIT.  THE REASONING PROCEEDED UPON THE PROTECTION OF FEDERAL
JUDGMENTS, NOT ON THE LANGUAGE OF THE REMOVAL STATUTE.  THE SAME IS
TRUE OF DIETZSCH.  THERE A STATE SUIT ON A REPLEVIN BOND WAS ENJOINED
BY THE FEDERAL COURT BECAUSE IT GREW OUT OF A FAILURE TO RETURN
PROPERTY AWARDED IN REPLEVIN IN A STATE COURT AFTER THE REMOVAL OF THE
ORIGINAL REPLEVIN SUIT TO THE FEDERAL COURT WHICH ISSUED THE
INJUNCTION.  IT WAS THERE SAID, P. 497:  "A COURT OF THE UNITED STATES
IS NOT PREVENTED FROM ENFORCING ITS OWN JUDGMENTS BY THE STATUTE WHICH
FORBIDS IT TO GRANT A WRIT OF INJUNCTION TO STAY PROCEEDINGS IN A STATE
COURT." 

THE COURT TODAY LAYS ASIDE GUNTER V. ATLANTIC COAST LINE, 200 U.S.
273(1906), AS INAPPLICABLE.  THE CASE IN OUR VIEW MAY BE PROPERLY CITED
AS A RELITIGATION DECISION.  IT FORCEFULLY DECLARES, ALBEIT BY
ALTERNATIVE RULING, FOR THE POSITION HERE TAKEN.  A FEDERAL COURT HAD
ENJOINED A STATE TAX ON THE GROUND OF UNCONSTITUTIONALITY.  THE STATE
WAS A PARTY.  YEARS LATER THE STATE BROUGHT AN ACTION IN THE STATE
COURT FOR THE TAX WHICH THE DECREE PROHIBITED.  AN ANCILLARY BILL
SOUGHT AND OBTAINED AN INJUNCTION FROM THE FEDERAL COURT.  THIS COURT
SAID, P. 292, "INDEED, THE PROPOSITION THAT THE ELEVENTH AMENDMENT, OR
STATES IN ADMINISTERING RELIEF, ALTHOUGH THE COURT WAS ACTING IN A
MATTER ANCILLARY TO A DECREE RENDERED IN A CAUSE OVER WHICH IT HAD
JURISDICTION, IS NOT OPEN FOR DISCUSSION.  DIETZSCH V. HUIDEKOPER, 103
U.S. 494; PROUT V. STARR, 188 U.S. 537; JULIAN V. CENTRAL TRUST CO.,
193 U.S. 93, 112."  IT CANNOT FAIRLY BE SAID, WE THINK, THAT THIS WAS
NOT A HOLDING THAT A FEDERAL COURT HAS THE DUTY TO PROTECT ITS PARTIES
AGAINST RELITIGATION.  THIS SEEMS QUITE CERTAIN WHEN WE EXAMINE THE
CASES CITED WHICH ARE DISCUSSED HERETOFORE IN THIS OPINION. 

THE TERRY CASE, CITED UNDER THE RIVERDALE MILLS CASE, SUPRA, IS A
GOOD ILLUSTRATION OF THE PERMEATION OF OUR LAW BY THE PRINCIPLE OF
PROTECTION OF FEDERAL DECREES BY INJUNCTIONS AGAINST PROSECUTING STATE
SUITS WHICH RELITIGATE SETTLED ISSUES.  IN SHARON V. TERRY, A FORMER
DECREE HAD DETERMINED THE FRAUDULENT CHARACTER OF A MARRIAGE CONTRACT,
AND HAD ENJOINED ALL EFFORTS TO ESTABLISH RIGHTS UNDER ANY OF ITS
PROVISIONS.  NOTWITHSTANDING THIS DECREE, A PARTY THEREAFTER SOUGHT AND
OBTAINED A JUDGMENT OF THE HIGHEST COURT OF THE STATE DETERMINING THE
MARRIAGE CONTRACT VALID.  THERE WAS NO PLEA OF RES JUDICATA IN THE
STATE PROCEEDINGS.  AFTER THE ENTRY OF THE STATE JUDGMENT, THE PERSONAL
REPRESENTATIVE OF THE WINNING PARTY IN THE FEDERAL SUIT REVIVED THAT
PROCEEDING AND OBTAINED A RENEWAL OF THE INJUNCTION OVER THE SPECIFIC
OBJECTION THAT R.S. SEC. 720(SEC.  265 J.C.)  BARRED THE ORDER.  36 F.
337, 365. 

THE OPINION WAS BY JUSTICE FIELD OF THIS COURT, ON CIRCUIT, AND
STATED:  "THE DECREE OF THE FEDERAL COURT, WHEN REVIVED, MAY BE USED TO
STAY ANY ATTEMPTED ENFORCEMENT OF THE JUDGMENT OF THE STATE COURT."  P.
364.  IT IS TRUE THAT THE OPINION SHOWS THAT THE CIRCUIT COURT WAS OF
THE VIEW THAT PRIOR JURISDICTION OF AN IN PERSONAM CAUSE GAVE THE
FEDERAL COURT AUTHORITY TO ISSUE AN INJUNCTION AGAINST STATE
PROCEEDINGS.  P. 366.  BUT THE DECISION WAS DIRECTLY ON THE POINT OF
ENFORCEMENT OF A DECREE.  WHEN THE CASE CAME TO THIS COURT IT WAS
AFFIRMED WITHOUT CONSIDERATION OF SEC. 265 ON THE GROUND THAT THE
PROPRIETY OF THE REVIVOR WAS THE ONLY MATTER FOR DECISION, 131 U.S.
40. 

IN THE LATER CASE OF MISSOURI PACIFIC RY. CO. V. JONES, 170 F.
124(1909), A FEDERAL COURT HAD DECIDED THAT A STATE STATUTE FIXING
RAILROAD RATES WAS UNCONSTITUTIONAL, AND HAD ENTERED DECREES FOR THE
RAILROADS ACCORDINGLY.  THEREAFTER, A COUNTY ATTORNEY COMMENCED A SUIT
IN THE STATE COURT AGAINST THE COMPANIES TO RESTRAIN COLLECTION OF ANY
BUT THE STATUTORY RATE.  ON SUPPLEMENTAL BILL BY THE RAILROADS THE
FEDERAL COURT ENJOINED HIM FROM PROSECUTING THAT SUIT, AND RELITIGATING
THE RATE CONTROVERSY.  SIMILARLY, IN ST. LOUIS MINING & MILLING CO. V.
MONTANA MINING CO., 148 F. 450(1906), THE UNSUCCESSFUL PARTY IN THE
FEDERAL SUIT WAS ENJOINED FROM PROCEEDING FURTHER IN THE STATE COURT TO
RELITIGATE MATTERS ALREADY DECIDED.  FN15  THE FACT THAT THE FEDERAL
PROCEEDING WAS ANCILLARY TO AN ACTION TO TRY TITLE SEEMS TO HAVE HAD NO
PART IN THE DECISION.  FN16 

THESE CASES WERE ALL HANDED DOWN BEFORE THE ADOPTION OF THE JUDICIAL
CODE IN 1911.  THEY ARE CATALOGUED TO SHOW THAT THE POWER OF THE
FEDERAL COURTS TO MAKE THEIR DECREES EFFECTIVE WAS ACCEPTED AS
CONSONANT WITH THE GENERAL PROHIBITION OF SEC. 265.  POMEROY TAUGHT
THAT THIS WAS THE LAW IN 1905.  FN17  THE RULE WAS APPLIED AFTER 1911
WHEN OCCASION AROSE.  BY SUPREME TRIBE OF BEN-HUR V. CAUBLE, 255 U.S.
356, 367, IT WAS DECIDED IN 1921 ALMOST WITHOUT DISCUSSION THAT A
FEDERAL COURT WHICH HAD ENTERED A DECREE AS TO RIGHTS IN A FRATERNAL
BENEFIT ASSOCIATION IN A CLASS SUIT MIGHT ENJOIN BY ANCILLARY BILL
OTHER MEMBERS OF THE CLASS FROM RELITIGATING THE ISSUES IN A STATE
SUIT.  LOONEY V. EASTERN TEXAS R. CO., 247 U.S. 214, CITED AS A
CONTROLLING PRECEDENT, WAS SUGGESTED THERE BY APPELLANT, THE SUPREME
TRIBE OF BEN-HUR, UPON THE VERY POINT HERE UNDER DISCUSSION.  ID., 65
LAW.  ED. 675.  THIS COURT NOW LAYS THE LOONEY CASE ASIDE AS NOT BEING
A "RELITIGATION" CASE.  WHILE THE INJUNCTION IN THE LOONEY CASE WAS NOT
IN AID OF A DECREE, IT WAS IN AID OF JURISDICTION TAKEN TO DETERMINE A
TEXAS RATE CONTROVERSY.  A TEMPORARY INJUNCTION HAD BEEN ENTERED TO
MAINTAIN THE STATUS QUO UNTIL A REVIEW BY THE INTERSTATE COMMERCE
COMMISSION.  A TEMPORARY INJUNCTION MAY WELL BE LIKENED TO A DECREE AND
ENTITLED TO THE SAME PROTECTION AGAINST RELITIGATION.  SUCH WAS
EVIDENTLY THIS COURT'S VIEW.  IT SAID, PAGE 221:  "SO IMPORTANT IS IT
THAT UNSEEMLY CONFLICT OF AUTHORITY BETWEEN STATE AND FEDERAL COURTS
SHOULD BE AVOIDED BY MAINTAINING THE JURISDICTION OF EACH FREE FROM THE
ENCROACHMENTS OF THE OTHER, THAT SEC. 265 OF THE JUDICIAL CODE, REV.
STATS., SEC. 720, ACT OF MARCH 2, 1793, C. 22, 1 STAT. 334, HAS
REPEATEDLY BEEN HELD NOT APPLICABLE TO SUCH AN INJUNCTION." 

THE LAST CASE IN THIS COURT, LOCAL LOAN CO. V. HUNT, 292 U.S. 234,
UPHELD BY A UNANIMOUS COURT AN INJUNCTION, UPON AN ANCILLARY BILL IN A
BANKRUPTCY PROCEEDING, FORBIDDING THE PROSECUTION IN A STATE COURT OF A
CLAIM DISCHARGED IN BANKRUPTCY.  THIS COURT PLACED ITS DECISION
SQUARELY ON THE JURISDICTION OF THE BANKRUPTCY COURT TO EXECUTE ITS
DECREES "NOTWITHSTANDING THE PROVISIONS OF SEC. 265 OF THE JUDICIAL
CODE."  QUITE PROPERLY NO MENTION IS MADE OF THE EXCEPTION IN SEC. 265
"EXCEPT IN CASES WHERE SUCH INJUNCTION MAY BE AUTHORIZED BY ANY LAW
RELATING TO PROCEEDINGS IN BANKRUPTCY."  THE ONLY AUTHORIZATION FOR
INJUNCTIONS IS IN BANKRUPTCY ACT SEC. 11, 11 U.S.C. SEC. 29, WHICH
PROVIDES FOR A STAY OF PENDING SUITS DURING ADJUDICATION IN
BANKRUPTCY.  THIS IS SUBSTANTIALLY THE LANGUAGE OF SEC. 21 OF THE
BANKRUPTCY ACT OF 1867, 14 STAT. 526, WHICH CAUSED THE INSERTION OF THE
EXCEPTION IN THE REVISED STATUTES, AS IS SHOWN BY THE CROSS-REFERENCE
UNDER R.S. SEC. 720.  THE SPECIFIC EXCEPTION OF SEC. 265 WAS
INAPPLICABLE TO THE LOCAL LOAN COMPANY SITUATION.  FURTHERMORE, THIS
CASE INVOLVED A RES ONLY IN THE SENSE THAT EVERY BANKRUPTCY PROCEEDING
INVOLVES A RES, I.E., THE ESTATE. 

OTHER FEDERAL COURTS, SINCE THE ADOPTION OF THE JUDICIAL CODE, HAVE
CONTINUED TO ENJOIN RELITIGATION OF SETTLED ISSUES.  FN18 

WE THINK IT MAY BE ACCURATELY STATED THAT FOR MORE THAN HALF A
CENTURY THERE HAS BEEN A WIDELY ACCEPTED RULE SUPPORTING THE POWER OF
FEDERAL COURTS TO PREVENT RELITIGATION.  THERE ARE ADEQUATE PRECEDENTS
DIRECTLY IN POINT AND OTHERS WHICH RECOGNIZE THAT THE RULE EXISTS AND
IS SOUND.  SOME AT ONE TIME INVOLVED A RES.  A NUMBER APPLIED THE SAME
RULE WHEN A RES WAS NEVER IN THE HANDS OF THE COURT.  NOT A CASE NOR A
TEXT BOOK IS CITED TO SUPPORT THE COURT'S PRESENT POSITION.  NO
ARTICLES IN PERIODICALS SUGGEST THE PROPRIETY OR DESIRABILITY OF SO
POSITIVE A CHANGE, EXCEPT A SINGLE QUERY AS TO THE LOGIC OF THE
RELITIGATION DEVELOPMENT.  FN19  THOUGH THE JUDICIAL CODE RECEIVED
CAREFUL ANALYSIS BEFORE ADOPTION,  FN20  NO LANGUAGE WAS INSERTED TO
DISAVOW THE SETTLED CONSTRUCTION OF THE REENACTED SECTION.  DIAL V.
REYNOLDS, 96 U.S. 340, SAID BY THE COURT TO BE A "RELITIGATION" CASE,
DID NOT INVOLVE A DECREE.  IN A FEDERAL SUIT TO QUIET TITLE AN
INJUNCTION WAS SOUGHT TO FORBID A STATE ACTION IN EJECTMENT.  IT IS IN
LINE WITH KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, BUT NOT EVEN
PERSUASIVE ON THE QUESTION OF RELITIGATION OR EXECUTION OF DECREES. 

WE TURN NOW BRIEFLY TO THE ORIGINAL AND AUXILIARY DECREES IN THE TWO
CASES UNDER CONSIDERATION.  IN THE TOUCEY CASE, HIS SUIT IN EQUITY
AGAINST THE INSURANCE COMPANY FOR RESTORATION OF AN INSURANCE POLICY
AND PAYMENTS FOR BENEFITS UNDER IT ON THE GROUND OF THE FRAUD OF THE
COMPANY WAS DECIDED AGAINST TOUCEY.  AN ASSIGNEE OF TOUCEY'S IN PRIVITY
WITH HIM SOUGHT TO RELITIGATE THE SAME ISSUES IN A STATE COURT.  THE
FEDERAL COURT WHICH ENTERED THE ORIGINAL DECREE ENJOINED ON
SUPPLEMENTAL BILL "RETRIAL, RECONSIDERATION OR READJUDICATION" OF THE
SETTLED ISSUES AND THE PROSECUTION OF THE STATE ACTION.  FN21 

IN THE IOWA-WISCONSIN BRIDGE CO. CASE, A DECREE, INVALIDATING A
CERTAIN MORTGAGE AND BONDS ISSUED IN CONSIDERATION OF CLAIMED
INDEBTEDNESS AFTER PROTRACTED LITIGATION, WAS ENTERED DECEMBER 1, 1936,
IN A MORTGAGE FORECLOSURE SUIT BROUGHT IN A FEDERAL COURT BY THE
BONDHOLDERS.  THIS DECREE BECAME FINAL.  FN22  THEREAFTER PARTIES TO
THE PROCEEDINGS SOUGHT TO LITIGATE, IN THE STATE COURTS OF DELAWARE,
THE VALIDITY OF CERTAIN ITEMS OF THE INDEBTEDNESS WHICH ARE ALLEGED TO
FORM THE BASIS FOR THE BOND ISSUE AND TO HAVE BEEN INVALIDATED BY THE
FORMER FEDERAL DECREE.  A SUPPLEMENTAL AND ANCILLARY BILL WAS FILED BY
THE BRIDGE COMPANY IN THE ORIGINAL FEDERAL COURT SUIT SEEKING AN
INJUNCTION AGAINST THE RELITIGATION OF THE ALREADY ADJUDICATED CAUSES
OF ACTION.  THE DISTRICT COURT GRANTED THE INJUNCTION ON A FINDING THAT
THE CAUSES DECLARED UPON IN DELAWARE HAD BEEN SETTLED BY THE FEDERAL
LITIGATION.  FN23 

THESE SUMMARY STATEMENTS SHOW PLAINLY, IT SEEMS TO US, THAT THE
INJUNCTIONS NOW SET ASIDE BY THIS COURT WERE ISSUED WITHIN THE
RECOGNIZED RULE THAT FEDERAL COURTS MAY PROTECT THEIR DECREES BY
PROHIBITING RELITIGATION, WITHOUT VIOLATION OF SEC. 265 AS HERETOFORE
UNDERSTOOD AND INTERPRETED.  BOTH DECREES SHOULD BE AFFIRMED.  FN24 
FN1  R.S. SEC. 905; 28 U.S.C. SEC. 687; HANCOCK NATIONAL BANK V.
FARNUM, 176 U.S. 640. 

FN2  EMBRY V. PALMER, 107 U.S. 3, 9; ATCHISON, T. & S.F. RY. CO. V.
SOWERS, 213 U.S. 55, 64. 

FN3  "THE  SUPREME COURT AND THE DISTRICT COURTS SHALL HAVE POWER TO
ISSUE WRITS OF SCIRE FACIAS.  THE SUPREME COURT, THE CIRCUIT COURTS OF
APPEALS, AND THE DISTRICT COURTS SHALL HAVE POWER TO ISSUE ALL WRITS
NOT SPECIFICALLY PROVIDED FOR BY STATUTE, WHICH MAY BE NECESSARY FOR
THE EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND AGREEABLE TO THE
USAGES AND PRINCIPLES OF LAW."  (R.S. SEC. 716; ACT OF MAR. 3, 1911, C.
231, SEC. 262, 36 STAT. 1162.) 

FN4  CF. STEELMAN V. ALL CONTINENT CORP., 301 U.S. 278, 290; WARREN,
FEDERAL AND STATE COURT INTERFERENCE, (1930) 43 HARV. L. REV. 345,
372. 

FN5  STORY, EQUITY PLEADINGS (10TH ED.)  SEC.  429; MITFORD,
PLEADINGS IN CHANCERY (1780) P. 38; COOPER, EQUITY PLEADING, (1809) PP.
98, 99; BOOTH V. LEYCESTER, 1 KEEN 579(1837); KERSHAW V. THOMPSON, 4
JOHNS.  CH. 609(N.Y. 1820). 

FN6  CF. UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534,
543. 

FN7  FRENCH V. HAY, 22 WALL.  250; DIETZSCH V. HUIDEKOPER, 103 U.S.
494; JULIAN V. CENTRAL TRUST CO., 193 U.S. 112; SHARON V. TERRY, 36 F.
337; GARNER V. SECOND NATIONAL BANK, 67 F. 833; CENTRAL TRUST CO. V.
WESTERN N.C.R. CO., 89 F. 24; JAMES V. CENTRAL TRUST CO., 98 F. 489;
CHICAGO, R.I. & P. RY. CO. V. ST. JOSEPH UNION DEPOT CO., 92 F. 22;
STATE TRUST CO. V. KANSAS CITY, P. & G.R. CO., 110 F. 10. 

FN8  DIETZSCH V. HUIDEKOPER, 103 U.S. 494, 498. 

FN9  CF. PRINCESS LIDA V. THOMPSON, 305 U.S. 456, 466. 

FN10  E.G., IN RE CHILES, 22 WALL.  157, 166; SHARON V. TERRY, 36 F.
337, 345. 

FN11  CF. SOUTHERN RAILWAY CO. V. PAINTER, POST, P. 155. 

FN12  UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534; UNITED
STATES V. GUARANTY TRUST CO., 280 U.S. 478; MILLER V. NUT MARGARINE
CO., 284 U.S. 498; ALLEN V. REGENTS, 304 U.S. 439. 

FN13  KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, 229. 

FN14  THE DOCTRINE OF THE JULIAN CASE FINDS ILLUSTRATIONS IN THE
LOWER FEDERAL COURTS.  WHILE IT IS TRUE THAT THOSE COURTS WERE
ENFORCING FORECLOSURE, THAT PURPOSE HAD BEEN ACCOMPLISHED AND THE
ENJOINED STATE SUITS SOUGHT RELITIGATION OF CLOSED ISSUES.  JAMES V.
CENTRAL TRUST CO., 98 F. 489(1899), MODIFYING CENTRAL TRUST CO. V.
WESTERN N.C.R. CO., 89 F. 24(1898); STATE TRUST CO. V. KANSAS CITY, P.
& G.R. CO., 110 F. 10(1901); CENTRAL TRUST CO. V. WESTERN NORTH
CAROLINA R. CO., 112 F. 471(1901); ALTON WATER CO. V. BROWN, 166 F.
840(1908). 

FN15  CF. GARNER V. SECOND NATIONAL BANK, 67 F. 833(1895). 

FN16  THERE ARE INSTANCES OF THE RECOGNITION OF THE POWER TO PREVENT
RELITIGATION DESPITE R.S. SEC. 720 THOUGH THE POWER WAS NOT ACTUALLY
EXERCISED.  CHICAGO, R.I. & P. RY. V. ST. JOSEPH UNION DEPOT CO., 92 F.
22, 25(1898); GUARDIAN TRUST CO. V. KANSAS CITY SOUTHERN RY. CO., 146
F. 337, 340(1906).  CRAFT V. LATHROP, FED. CAS. NO. 3318(1851),
PRESENTS THE CONVERSE SITUATION OF THE EXERCISE OF THIS POWER WITHOUT
CONSIDERATION OF THE CONTEMPORARY EQUIVALENT OF SEC. 265. 

FN17  II POMEROY'S EQUITABLE REMEDIES (1905) SEC. 640, P. 1079. 
AFTER DISCUSSING SEC. 265 - "ACCORDINGLY, A FEDERAL COURT MAY GRANT AN
INJUNCTION AGAINST A PROCEEDING IN A STATE COURT WHEN NECESSARY TO
RENDER EFFECTIVE ITS OWN DECREE." 

FN18  ST. LOUIS-SAN FRANCISCO RY. V. MCELVAIN, 253 F.
123(1918)(VALIDITY OF MORTGAGE FORECLOSURE); WILSON V. ALEXANDER, 276
F. 875(1921)(DEFEASIBILITY OF TITLE TO LAND); HICKEY V. JOHNSON, 9 F.2D
498(1925)(VALIDITY OF DEEDS TO INDIAN LAND); AMERICAN SURETY CO. V.
BALDWIN, 2 F.SUPP.  679(1933)(LIABILITY OF SURETY ON APPEAL BOND);
STERLING V. GREDIG, 5 F.SUPP.  329(1932)(VALIDITY OF PROVISIONS IN A
WILL); HESSELBERG V. AETNA LIFE INS. CO., 102 F.2D 23(1939)(VALIDITY OF
INSURANCE POLICY). 

FN19  SEE TAYLOR AND WILLIS, THE POWER OF FEDERAL COURTS TO ENJOIN
PROCEEDINGS IN STATE COURTS, (1933) 42 YALE L.J. 1169, 1176.  CF.
WARREN, FEDERAL AND STATE COURT INTERFERENCE, (1930) 43 HARV. L. REV.
345, 378. 

FN20  SENATE REPORT NO. 388, 61ST CONG., 2D SESS., (1910), P. 2. 

FN21  CF. TOUCEY V. NEW YORK LIFE INS. CO., 102 F.2D 16, 20;
EQUITABLE LIFE ASSUR.  SOC.  V. WERT, 102 F.2D 10. 

FN22  98 F.2D 416, CERT. DENIED, 305 U.S. 650. 

FN23  SEE, FOR AN UNDERSTANDING OF THE COMPLEXITIES OF THE ISSUES
ALREADY SETTLED:  BECHTEL TRUST CO. V. IOWA-WISCONSIN BRIDGE CO., 19
F.SUPP.  127; FIRST TRUST & SAVINGS BANK V. IOWA-WISCONSIN BRIDGE CO.,
98 F.2D 416; PHOENIX FINANCE CORP. V. IOWA-WISCONSIN BRIDGE CO., 115
F.2D 1. 

FN24  IT MIGHT BE NOTED THAT SEC. 265 IS RECOGNIZED AS MERELY A
LIMITATION ON GENERAL EQUITY POWERS, SMITH V. APPLE, 264 U.S. 274,
WHILE THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, IS A DENIAL OF
JURISDICTION TO ENJOIN.  "NO COURT OF THE UNITED STATES  ...  SHALL
HAVE JURISDICTION TO ISSUE ANY ...  INJUNCTION IN A CASE INVOLVING OR
GROWING OUT OF A LABOR DISPUTE, EXCEPT  ...  " 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS CONCUR IN THIS DISSENT. 
..END :




SOUTHERN RY. CO. V. PAINTER, 314 U.S. 155 


NO. 24.  ARGUED OCTOBER 20, 21, 1941.  - DECIDED NOVEMBER 17, 1941.  -
117 F.2D 100, REVERSED. 


PROCEEDINGS IN A STATE COURT THOUGH SUCH INJUNCTION BE IN SUPPORT OF A
SUIT, UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, BEGUN EARLIER AND
THEN PENDING IN THE FEDERAL COURT.  P. 159. 

SOUTHERN RAILWAY CO. V. PAINTER, ADMINISTRATRIX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 313 U.S. 556, TO REVIEW THE AFFIRMANCE OF A DECREE OF
INJUNCTION. 

THE FEDERAL DISTRICT COURT HAD JURISDICTION, AS TO BOTH SUBJECT
MATTER AND PARTIES, OVER THE ACTION UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT. 

THAT THE PLAINTIFF UNDER SEC. 6, AS AMENDED, HAD AN UNQUALIFIED RIGHT
TO BRING THE ACTION IN THE FEDERAL COURT IN MISSOURI, IS PLAIN FROM THE
LANGUAGE AND THE LEGISLATIVE HISTORY OF THAT SECTION. 

THIS RIGHT TO SELECT THE FORUM IS AN ABSOLUTE FEDERAL RIGHT.  SECOND
EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 58; HOFFMAN V. MISSOURI EX REL.
FORAKER, 274 U.S. 21; MCKNETT V. ST. LOUIS & S.F.R. CO., 292 U.S. 230;
SEE, ALSO, MISSOURI EX REL. ST. LOUIS, B. & M.R. CO. V. TAYLOR, 255
U.S. 200. 

THE TENNESSEE CHANCERY COURT WAS WITHOUT JURISDICTION OF THE SUBJECT
MATTER OF THE RAILWAY'S COMPLAINT.  ITS INJUNCTION WAS UNAUTHORIZED AND
VOID. 

WHERE THE STATE AND FEDERAL COURTS HAVE CONCURRENT JURISDICTION, THE
PLAINTIFF HAS THE ABSOLUTE RIGHT TO ELECT THE FORUM IN WHICH HE WILL
BRING HIS ACTION. 

WHEN A FEDERAL COURT IS PROPERLY APPEALED TO IN A CASE OVER WHICH IT
HAS BY LAW JURISDICTION, IT IS NOT ONLY THE RIGHT, BUT THE DUTY, OF
THAT COURT TO TAKE AND EXERCISE JURISDICTION.  DIST'G CANADA MALTING
CO. V. PATERSON STEAMSHIPS, LTD., 285 U.S. 413; PENN GENERAL CASUALTY
CO. V. PENNSYLVANIA, 294 U.S. 189; PENNSYLVANIA V. WILLIAMS, 294 U.S.
176; AND HARKIN V. BRUNDAGE, 276 U.S. 36. 

THE DOCTRINE OF FORUM NON CONVENIENS IS ONE WHICH IS APPLICABLE ONLY
BY A COURT TO A CASE PENDING BEFORE IT, AS THE DECISIONS RELIED UPON BY
PETITIONER RAILWAY WELL ILLUSTRATE; IT CANNOT BE APPLIED BY ONE COURT
TO A CASE PENDING BEFORE A COURT IN ANOTHER JURISDICTION - AND
PETITIONER RAILWAY MADE NO ATTEMPT TO HAVE THE FEDERAL DISTRICT COURT
BELOW APPLY THAT DOCTRINE TO THIS RESPONDENT'S CASE, BUT, ON THE
CONTRARY, SOUGHT A "BACK-HANDED" APPLICATION OF THE DOCTRINE BY THE
STATE COURT OF TENNESSEE.  IN THE SECOND PLACE, THE DOCTRINE OF FORUM
NON CONVENIENS IS NOT TO BE APPLIED MERELY UPON CONSIDERATIONS OF
CONVENIENCE OR EXPENSE, BUT IS TO BE APPLIED ONLY WHERE THE TRIAL OF
THE CAUSE IN THE FORUM IN WHICH IT IS PENDING WILL PRODUCE AN
INJUSTICE.  IN THE THIRD PLACE, THE DOCTRINE OF FORUM NON CONVENIENS IS
NEVER TO BE APPLIED WHERE IT WILL RESULT IN AN INJUSTICE TO THE
PLAINTIFF. 

THE COURTS OF A STATE HAVE NO AUTHORITY OR JURISDICTION TO RESTRAIN
OR ENJOIN PROCEEDINGS IN THE FEDERAL COURTS. 

A COURT OF EQUITY, IN A PROPER CASE AND TO PREVENT HARASSING,
VEXATIOUS AND INEQUITABLE CONSEQUENCES, MAY RESTRAIN AND ENJOIN PARTIES
WITHIN ITS JURISDICTION FROM INSTITUTING OR PROSECUTING PROCEEDINGS IN
THE COURTS OF OTHER JURISDICTIONS.  COLE V. CUNNINGHAM, 133 U.S. 107. 
BUT THAT DOCTRINE IS SUBJECT TO THE EXCEPTION, BASED UPON NECESSITY,
THAT STATE COURTS CANNOT ENJOIN PARTIES FROM PROCEEDING IN FEDERAL
COURTS.  THE DOCTRINE APPLIES ONLY IN CASES WHERE BOTH PARTIES TO THE
PROCEEDINGS IN THE FOREIGN COURT ARE RESIDENTS WITHIN THE JURISDICTION
OF THE COURT OF EQUITY WHEREIN RELIEF IS SOUGHT FROM THE PROSECUTION OF
THE PROCEEDING IN THE FOREIGN COURT. 

FURTHERMORE, THE EFFECT OF THE SPECIFIC PROVISION OF THE FEDERAL
EMPLOYERS' LIABILITY ACT IS TO SUPERSEDE THE LAW OF THE STATES, COMMON
LAW AS WELL AS STATUTORY. 

THE INJUNCTION BY THE TENNESSEE CHANCERY COURT, WITHOUT AUTHORITY,
UNDERTOOK (1) TO DEPRIVE RESPONDENT ENTIRELY OF HER RIGHT TO BRING HER
ACTION IN THE FEDERAL COURT AT THE PLACE FIRST PROVIDED FOR BY THE ACT,
VIZ., IN THE DISTRICT OF THE RESIDENCE OF PETITIONER RAILWAY AT
RICHMOND, VIRGINIA; (2) TO IMPAIR AND LIMIT THE RIGHT OF RESPONDENT TO
BRING HER ACTION IN A FEDERAL COURT IN THE PLACES LAST PROVIDED FOR BY
THE ACT, VIZ., THE VARIOUS FEDERAL DISTRICTS IN WHICH THE PETITIONER
RAILWAY WAS DOING BUSINESS; AND (3) TO DIRECT RESPONDENT TO BRING HER
ACTION IN THE FEDERAL COURT AT A PLACE NOT PROVIDED FOR BY THE ACT,
VIZ., THE DISTRICT OF PLAINTIFF'S RESIDENCE, WHERE THE RAILWAY MIGHT
NOT BE DOING BUSINESS. 

THAT THE EMPLOYEE'S ELECTION OF A VENUE MAY CAUSE, INCIDENTALLY, A
BURDEN ON INTERSTATE COMMERCE, CANNOT AFFECT HIS RIGHT TO MAKE IT,
PURSUANT TO THE ACT. 

THE GENERAL RULE THAT, ORDINARILY, AN ADMINISTRATOR OR EXECUTOR
CANNOT SUE OR BE SUED IN HIS OFFICIAL CAPACITY IN THE COURTS OF A
JURISDICTION FOREIGN TO THAT FROM WHICH HE DERIVES HIS AUTHORITY, IS
WITHOUT APPLICATION TO AN ADMINISTRATOR OR EXECUTOR WHO BRINGS AN
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT. 

RESPONDENT DID NOT BRING HER ACTION IN THE FEDERAL DISTRICT COURT IN
MISSOURI BY VIRTUE OF HER INHERENT RIGHT AS THE REPRESENTATIVE OF THE
ESTATE OF HER DECEDENT, BUT BY VIRTUE OF HER DESIGNATION BY THE FEDERAL
STATUTE AS TRUSTEE FOR DESIGNATED DEPENDENT SURVIVORS OF THE DECEDENT
AND FOR THEM ALONE. 

THE INJUNCTION OF THE CHANCERY COURT IS NOT ENTITLED TO "FULL FAITH
AND CREDIT."  THE DISTRICT COURT HAD OCCASION AND POWER AND AUTHORITY
TO GRANT THE INJUNCTION AGAINST THE RAILWAY. 

NO STATE OR FEDERAL COURT, OTHER THAN THE FEDERAL DISTRICT COURT
BELOW IN MISSOURI, IS OPEN OR AVAILABLE TO RESPONDENT FOR THE
PROSECUTION OF HER CAUSE OF ACTION, FOR THE INJURY TO AND DEATH OF HER
DECEDENT, BECAUSE THE TWO-YEAR TIME LIMITATION OF THE ACT (BEFORE THE
AMENDMENT OF SEC. 6) APPLIES, AND THE TIME HAS EXPIRED. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON AUGUST 31, 1939, RESPONDENT BROUGHT AN ACTION AGAINST PETITIONER
IN THE FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI TO
RECOVER DAMAGES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT.
65; 45 U.S.C. SEC. 51 ET SEQ., FOR THE WRONGFUL DEATH OF HER HUSBAND
WHILE EMPLOYED BY PETITIONER AS A FIREMAN ON AN INTERSTATE TRAIN
OPERATED BETWEEN POINTS IN TENNESSEE AND NORTH CAROLINA.  WHILE THIS
ACTION WAS PENDING, PETITIONER FILED A BILL IN THE CHANCERY COURT OF
KNOX COUNTY, TENNESSEE, ALLEGING THAT RESPONDENT AND THE DECEASED WERE
CITIZENS OF TENNESSEE; THAT PETITIONER, A VIRGINIA CORPORATION HAVING
ITS PRINCIPAL OFFICE IN RICHMOND, VIRGINIA, DOES NO BUSINESS IN
MISSOURI OTHER THAN OF AN INTERSTATE CHARACTER; THAT THE ACCIDENT
OCCURRED IN MADISON COUNTY, NORTH CAROLINA, "JUST BEYOND THE NORTH
CAROLINA-TENNESSEE LINE"; THAT THE MISSOURI FEDERAL COURT IS MORE THAN
500 MILES DISTANT FROM RESPONDENT'S RESIDENCE, THE RESIDENCE OF
PETITIONER'S WITNESSES, AND THE PLACE WHERE THE ACCIDENT OCCURRED; THAT
PETITIONER COULD NOT TRANSPORT ITS WITNESSES TO MISSOURI EXCEPT AT
"ENORMOUS EXPENSE"; THAT RESPONDENT'S PURPOSE IN BRINGING SUIT IN
MISSOURI WAS TO EVADE THE LAW OF TENNESSEE AND NORTH CAROLINA; AND THAT
PETITIONER MAINTAINS AGENTS IN TENNESSEE AND NORTH CAROLINA UPON WHOM
PROCESS CAN BE SERVED.  THE CHANCELLOR THEREUPON ENJOINED RESPONDENT
FROM FURTHER PROSECUTING HER ACTION IN THE MISSOURI FEDERAL COURT AND
FROM INSTITUTING ANY SIMILAR SUITS AGAINST PETITIONER EXCEPT IN THE
STATE AND FEDERAL COURTS IN TENNESSEE AND NORTH CAROLINA.  RESPONDENT
DID NOT APPEAL FROM THIS DECREE.  INSTEAD, SHE FILED A "SUPPLEMENTAL
BILL" IN THE MISSOURI FEDERAL COURT TO ENJOIN THE PROCEEDINGS IN THE
TENNESSEE STATE COURT.  HOLDING THAT THE COMMENCEMENT OF RESPONDENT'S
ACTION FOR DAMAGES GAVE THE FEDERAL COURT "SPECIFIC, COMPLETE, SOLE AND
EXCLUSIVE JURISDICTION" WHICH COULD NOT BE "INTRENCHED UPON" BY
PROCEEDINGS IN ANOTHER COURT, THE DISTRICT COURT, BY AN APPROPRIATE
INTERLOCUTORY DECREE, FORBADE PETITIONER FROM FURTHER PROSECUTING ITS
SUIT IN THE TENNESSEE STATE COURT AND ORDERED IT TO DISMISS THE STATE
SUIT.  THIS DECREE WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS FOR THE
EIGHTH CIRCUIT, 117 F.2D 100.  WE BROUGHT THE CASE HERE, 313 U.S. 556,
IN VIEW OF THE RELATION OF ITS JURISDICTIONAL PROBLEMS TO THOSE IN
TOUCEY V. NEW YORK LIFE INSURANCE CO. AND PHOENIX FINANCE CORP. V. IOWA
WISCONSIN BRIDGE CO., ANTE, P. 118. 

THE LIMITATIONS IMPOSED ON THE POWER OF THE FEDERAL COURTS BY SEC.
265 OF THE JUDICIAL CODE, AS WE HAVE APPLIED THEM THIS DAY IN THE
TOUCEY AND PHOENIX CASES, SUPRA, GOVERN THE DISPOSITION OF THIS CASE. 
THE RESTRICTIONS OF SEC. 265 UPON THE USE OF THE INJUNCTION TO STAY A
LITIGATION IN A STATE COURT CONFINE THE DISTRICT COURTS EVEN THOUGH
SUCH AN INJUNCTION IS SOUGHT IN SUPPORT OF AN EARLIER SUIT IN THE
FEDERAL COURTS.  CONGRESS HAS ENDOWED THE FEDERAL COURTS WITH SUCH
PROTECTIVE JURISDICTION NEITHER GENERALLY NOR IN THE SPECIFIC INSTANCE
OF CLAIMS ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  EVER
SINCE THE ACT OF MARCH 2, 1793, 1 STAT. 334, SEC. 5, CONGRESS HAS DONE
PRECISELY THE OPPOSITE.  BECAUSE OF ITS VIEWS OF APPROPRIATE POLICY IN
THE INTERPLAY OF STATE AND FEDERAL JUDICIARIES, CONGRESS HAS FORBIDDEN
THE EXCLUSIVE ABSORPTION OF SUCH LITIGATION BY THE FEDERAL COURTS.  IF
A STATE COURT PROCEEDS AS THE CHANCERY COURT OF TENNESSEE ACTED, THE
ULTIMATE VINDICATION OF ANY FEDERAL RIGHT LIES WITH THIS COURT. 

THE DISTRICT COURT WAS HERE WITHOUT POWER TO ENJOIN PETITIONER FROM
FURTHER PROSECUTING ITS SUIT IN THE TENNESSEE STATE COURT.  REVERSED. 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS AND MR. JUSTICE REED,
CONCURRING: 

THE REASONS WHICH LED TO DISSENT IN TOUCEY V. NEW YORK LIFE INSURANCE
CO., AND PHOENIX FINANCE CORP. V. IOWA-WISCONSIN BRIDGE CO., ANTE, P.
118, DO NOT EXIST IN THIS CASE.  THERE IS NO FEDERAL DECREE AND
THEREFORE NO NEED OF AN INJUNCTION TO PROTECT THE DECREE OR PREVENT
RELITIGATION. 
..END :






















ALABAMA V. KING & BOOZER, 314 U.S. 1 


NO. 602.  ARGUED OCTOBER 23, 24, 1941.  - DECIDED NOVEMBER 10, 1941.  -
241 ALA. 557, 3 SO.2D 572, REVERSED. 


1.  NO CONSTITUTIONAL IMMUNITY OF THE UNITED STATES FROM STATE
TAXATION PREVENTS A STATE FROM APPLYING ITS SALES TAX TO A PURCHASE OF
BUILDING MATERIALS BY ONE WHO BUYS THEM FOR USE, AND USES THEM, IN
PERFORMING A "COST-PLUS" BUILDING CONTRACT FOR THE GOVERNMENT, ALTHOUGH
THE CONTRACT PROVIDES THAT THE TITLE TO SUCH MATERIALS SHALL VEST IN
THE UNITED STATES UPON THEIR DELIVERY, INSPECTION, AND ACCEPTANCE BY A
GOVERNMENT OFFICER, AT THE BUILDING SITE, AND THAT THE CONTRACTOR SHALL
BE REIMBURSED BY THE GOVERNMENT FOR THE COST OF THE MATERIALS,
INCLUDING THE TAX.  P. 8. 

(1)  THE FACT THAT THE ECONOMIC BURDEN OF THE TAX IS PASSED ON TO THE
UNITED STATES DOES NOT MAKE IT A TAX UPON THE UNITED STATES.  PANHANDLE
OIL CO. V. KNOX, 277 U.S. 218, AND GRAVES V. TEXAS CO., 298 U.S. 393,
OVERRULED.  P. 9. 

(2) IN THIS CASE, THE LEGAL INCIDENCE OF THE TAX WAS ON THE
CONTRACTOR, NOT ON THE UNITED STATES; THE CONTRACTOR, IN BUYING THE
MATERIALS, WAS NOT THE AGENT OR REPRESENTATIVE OF THE GOVERNMENT; AND
THE TRANSACTION WAS NOT SUCH AS TO PLACE THE GOVERNMENT IN THE ROLE OF
PURCHASER.  P. 9. 

NO QUESTION WAS HERE RAISED OF THE POWER OF CONGRESS TO FREE FROM
STATE TAXATION TRANSACTIONS OF INDIVIDUALS WHERE THE ECONOMIC BURDEN OF
THE TAX IS PASSED ON TO THE UNITED STATES.  P. 8. 

2.  UNDER THE ALABAMA STATUTE HERE INVOLVED (IT IS CONCEDED AND
ASSUMED FOR THE PURPOSES OF THIS CASE) THE PURCHASER OF TANGIBLE GOODS,
WHO IS SUBJECTED TO THE TAX MEASURED BY THE SALES PRICE, IS THE PERSON
WHO ORDERS AND PAYS FOR THEM WHEN THE SALE IS FOR CASH OR WHO IS
LEGALLY OBLIGATED TO PAY FOR THEM IF THE SALE IS ON CREDIT; AND UNDER
THE CONTRACT HERE INVOLVED THE CONTRACTORS WERE TO PURCHASE IN THEIR
OWN NAMES AND ON THEIR OWN CREDIT ALL THE MATERIALS REQUIRED, UNLESS
THE GOVERNMENT SHOULD ELECT TO FURNISH THEM, AND THE GOVERNMENT WAS NOT
BOUND BY THEIR PURCHASE CONTRACTS, BUT WAS OBLIGATED ONLY TO REIMBURSE
THE CONTRACTORS WHEN THE MATERIALS PURCHASED SHOULD BE DELIVERED,
INSPECTED AND ACCEPTED AT THE SITE.  P. 10. 

ALABAMA V. KING & BOOZER, A PARTNERSHIP, ET AL. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

CERTIORARI, POST, P. 599, TO REVIEW A DECREE OF THE SUPREME COURT OF
ALABAMA WHICH REVERSED A DECISION OF A STATE CIRCUIT COURT SUSTAINING A
SALES TAX.  THE DECISION OF THE CIRCUIT COURT WAS RENDERED UPON AN
APPEAL FROM THE ASSESSMENT.  THE UNITED STATES WAS PERMITTED TO
INTERVENE. 

THE TAX IS IMPOSED UPON THE PURCHASER. 

THE UNITED STATES IN ITS PURCHASES IS IMMUNE FROM A SALES TAX UPON
THE BUYER. 

CONGRESS HAS POWER TO WAIVE THE IMMUNITY FROM STATE TAXATION WHICH
WOULD OTHERWISE ATTACH TO FEDERAL INSTRUMENTALITIES AND TRANSACTIONS,
AND HAS ALSO POWER TO EXEMPT FROM STATE TAXATION TRANSACTIONS OF THE
UNITED STATES AND ITS INSTRUMENTALITIES WHICH MIGHT OTHERWISE BE
TAXABLE. 

ANY TAX UPON A TRANSACTION WILL AFFECT BOTH PARTIES.  RECOGNITION OF
THIS HAS, AT LEAST UNTIL RECENT YEARS, FORCED THE COURT TO ATTEMPT A
DISTINCTION BETWEEN VARIOUS TRANSACTION TAXES ACCORDING TO THE
IMMEDIACY OF THEIR EFFECT UPON THE GOVERNMENT.  THAT TASK HAS BEEN
NOTORIOUSLY DIFFICULT.  WE THINK THAT IT SHOULD BE ABANDONED, AND THAT,
IN THE SILENCE OF CONGRESS, IMMUNITY SHOULD TURN UPON THE SIMPLER AND
MORE SATISFACTORY TEST OF WHETHER THE TAX IS IMPOSED UPON THE
GOVERNMENT OR UPON A PRIVATE PERSON. 

THE COURT HAS IN THE LARGE ADHERED TO SOME SIX GENERAL TESTS BY WHICH
TO DISTINGUISH THE GOOD TAX FROM THE BAD TAX AS APPLIED TO THE
TRANSACTION BETWEEN THE GOVERNMENT AND A PRIVATE PERSON.  THESE MAY BE
CLASSIFIED AS FOLLOWS:  (1) PRESENCE OF BURDEN UPON THE GOVERNMENT. 
(2) INTERFERENCE WITH GOVERNMENT FUNCTIONS.  (3) IS THE TAX UPON THE
GOVERNMENTAL SOURCE OF THE PAYMENT TAXED?  (4) IS THE ECONOMIC BURDEN
BORNE BY THE GOVERNMENT?  (5) IS THE TAX NONDISCRIMINATORY?  (6) IS THE
TAX, IN LAW, IMPOSED UPON THE GOVERNMENT OR THE PRIVATE PERSON?  WE
THINK THE FIRST FOUR CRITERIA ARE UNSOUND AND HAVE BEEN REJECTED BY THE
COURT AND THAT ACCEPTANCE OF THE FIFTH AND SIXTH IS REQUIRED BOTH BY
PRINCIPLE AND BY EXISTING AUTHORITY. 

TAX-ON-THE-SOURCE TEST, EXEMPLIFIED IN POLLOCK V. FARMERS' LOAN &
TRUST CO., 157 U.S. 429, 158 U.S. 601, HAS BEEN REJECTED, BOTH IN TERMS
AND IN PRACTICAL RESULTS.  SEE GRAVES V. N.Y. EX REL. O'KEEFE, 306 U.S.
466, 480-481.  THE FORMULA WOULD HAVE REQUIRED THE INVALIDATION OF THE
TAXES SUSTAINED IN THE O'KEEFE CASE, SUPRA, AND OTHER CASES. 

IT IS VERY HARD TO TELL WHAT IS MEANT BY THE STATEMENT THAT A TAX
INTERFERES WITH OR BURDENS THE GOVERNMENT'S TRANSACTION.  ORDINARILY,
THE ONLY PRACTICAL INTERFERENCE WOULD SEEM TO BE THE DISCOURAGEMENT
FOUND IN THE ECONOMIC BURDEN OF THE TAX. 

ECONOMIC BURDEN OF THE TAX:  A SIMPLE AND INTELLIGIBLE REASON FOR
INVALIDATING A TAX LAID UPON A PRIVATE PERSON IS THAT, AS A PRACTICAL
MATTER, IT WILL INCREASE THE COSTS OR REDUCE THE REVENUES OF THE
GOVERNMENT WITH WHICH HE DEALS.  BUT THIS REASON HAS BEEN ADVANCED IN
ONLY THREE OF THE OPINIONS DECLARING AN IMMUNITY FROM TAXATION. 
INDEED, THE COURT HAS FIRMLY STATED THAT "THE QUESTION HERE IS ONE OF
POWER AND NOT OF ECONOMICS."  HOME SAVINGS BANK V. DES MOINES, 205 U.S.
503, 519. 

ONE SUPPOSES THAT AN ECONOMIC ANALYSIS OR INTUITION LIES BACK OF
EVERY DECISION THAT A PRIVATE PERSON IS IMMUNE FROM TAXATION BECAUSE HE
DEALS WITH THE GOVERNMENT.  SEE GRAVES V. TEXAS CO., 298 U.S. 393,
395.  YET THE DIFFICULTY WITH THE ANALYSIS IS THAT IT INEVITABLY PROVES
TOO MUCH.  WHEN THE GOVERNMENT BUYS AN ARTICLE, OR RECEIVES GOODS AND
SERVICES UNDER CONTRACT, IT MUST IN THE NORMAL COURSE PAY ALL OF THE
COSTS REQUIRED FOR THE FINISHED PRODUCT.  THESE COSTS INCLUDE TAXES OF
ALL FORMS.  THERE IS NO ECONOMIC REASON WHY THESE TAXES SHOULD BE VALID
AND THE TAX UPON THE FINAL TRANSACTION, SALE OR DELIVERY TO THE
GOVERNMENT, INVALID.  TRUE, IT IS PROBABLE THAT THE FINAL TAX WOULD
SOMEWHAT MORE CERTAINLY BE SHIFTED TO THE GOVERNMENT THAN THOSE
ANTERIOR IN POINT OF TIME.  BUT EVEN THE FINAL TAX IS BY NO MEANS
CERTAIN TO BE SHIFTED.  SEE MR. JUSTICE STONE, DISSENTING IN INDIAN
MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570, 581.  AND THE EARLIER
TAXES COULD EASILY BE ISOLATED THROUGH ACCOUNTING PROCEDURES AND BY
CONTRACT BE MADE SPECIFICALLY REIMBURSABLE BY THE GOVERNMENT; YET NONE
WOULD SUPPOSE THAT THE RESULTING CERTAINTY OF TAX INCIDENCE UPON THE
GOVERNMENT WOULD INVALIDATE TAXES OTHERWISE UNOBJECTIONABLE. 

FOR THESE REASONS, THE ECONOMIC TEST IS ILLUSORY AND INCAPABLE OF
CONSISTENT APPLICATION. 

THE COURT IN ITS RECENT OPINIONS SEEMS TO HAVE REJECTED THE ECONOMIC
BURDEN AS A CRITERION OF VALIDITY OR INVALIDITY.  THAT REJECTION HAS
TAKEN TWO FORMS:  (A) AN OUTRIGHT REFUSAL TO ACCEPT INCREASED COST AS A
REASON FOR INVALIDATION AND (B) AN ANALYSIS WHICH INDICATES THAT THE
ECONOMIC BURDEN OF THE CHALLENGED TAX ON THE GOVERNMENT IS SPECULATIVE,
AND SO INDICATES THAT THE ECONOMIC INCIDENCE OF ANY TAX MUST ALWAYS BE
SPECULATIVE.  EACH OF THE RECENT OPINIONS DEALING WITH THE QUESTION HAS
ADOPTED BOTH APPROACHES.  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134,
160; HELVERING V. PRODUCERS CORP., 303 U.S. 376; HELVERING V. GERHARDT,
304 U.S. 405, 418-419, 422; GRAVES V. N.Y. EX REL. O'KEEFE, 306 U.S.
466, 483, 484, 487. 

THE EXISTENCE OR NONEXISTENCE OF AN ECONOMIC BURDEN UPON THE
GOVERNMENT CAN NO LONGER BE ACCEPTED AS THE TOUCHSTONE OF VALIDITY OR
INVALIDITY OF A TAX IMPOSED UPON A PRIVATE PERSON. 

A DISCRIMINATORY TAX, SINGLING OUT A GOVERNMENTAL FUNCTION TO BEAR
ABNORMAL AND UNFRIENDLY BURDENS, DOES IN TRUTH INVOLVE THE POWER TO
DESTROY.  CF., MCCULLOCH V. MARYLAND, 4 WHEAT.  316; VEAZIE BANK V.
FENNO, 8 WALL.  533.  ACCORDINGLY, THE PRINCIPLE THAT A TAX, SO LONG AS
IT HAS ANY EFFECT UPON THE GOVERNMENT'S OPERATIONS, MUST BE
NONDISCRIMINATORY TO BE UPHELD, IS ONE OF PERVADING APPLICATION AND
IMPORTANCE. 

THE RULES OF INTERGOVERNMENTAL TAX IMMUNITY, SO FAR AS THEY HAVE BEEN
DEVELOPED AND APPLIED TO PRIVATE PERSONS WHO DEAL WITH THE GOVERNMENT,
EXHIBIT A GREAT DIVERSITY OF DECISION AND REASONING.  A NUMBER OF CASES
HAVE EXPRESSLY BEEN OVERRULED; MANY MORE HAVE BEEN DISTINGUISHED ON THE
NARROWEST OF GROUNDS; AND IN STILL OTHER DECISIONS TECHNICAL RULES HAVE
BEEN DEVISED TO REACH RESULTS IN PRACTICAL CONTRADICTION OF EARLIER
CASES.  IN SHORT, THERE IS NO SINGLE DECISION EXEMPTING A PRIVATE
TAXPAYER FROM A NONDISCRIMINATORY TAX WHICH CAN WITH CONFIDENCE BE SAID
TO BE GOOD LAW TODAY. 

THE DECISIONS RELATING TO A TAX ON THE UNITED STATES ITSELF SHOW AN
UNQUALIFIED UNIFORMITY.  NO DECISION OF THIS COURT HAS EVER HELD, IN
THE ABSENCE OF LEGISLATIVE CONSENT, THAT THE NATIONAL GOVERNMENT COULD
BE TAXED BY A STATE OR LOCAL GOVERNMENT. 

THE VALIDITY OF TAXES CHALLENGED AS INVADING THE IMMUNITY OF THE
GOVERNMENT SHOULD BE DECIDED, WE THEREFORE SUBMIT, IN TERMS OF THE
LEGAL INCIDENCE OF THE TAX.  IN TERMS OF THE PRESENT ISSUE, WE URGE
THAT PURCHASES WHICH THE UNITED STATES MAKES THROUGH THE COST-PLUS-A
FIXED-FEE CONTRACTOR ARE IN REALITY THOSE OF THE UNITED STATES AND NOT
THOSE OF THE CONTRACTOR.  IN ADVANCING A TEST BASED UPON THE LEGAL
INCIDENCE OF THE TAX UPON THE GOVERNMENT OR A PRIVATE PERSON, WE DO NOT
SPEAK IN TERMS OF TECHNICALITIES BUT IN TERMS OF THE REALITIES OF THE
GOVERNMENTAL FUNCTIONS WITH WHICH THE CONSTITUTIONAL PROTECTION IS
CONCERNED. 

THE IMMUNITY INCLUDES A VENDEE SALES TAX COLLECTED THROUGH A PRIVATE
PERSON.  THE ALABAMA SALES TAX IS IMPOSED UPON THE VENDEE AND THE
IMMUNITY OF THE UNITED STATES IS NOT LOST BECAUSE IT MAKES ITS
PURCHASES THROUGH A COST-PLUS-A-FIXED-FEE CONTRACTOR.  THE PROBLEM IS
SIMPLY WHETHER THE IMMUNITY OF THE UNITED STATES FROM A STATE TAX
IMPOSED UPON IT INCLUDES A SALES TAX THE LEGAL INCIDENCE OF WHICH IS
UPON THE PURCHASER BUT WHICH IS COLLECTED THROUGH THE SELLER.  WHETHER,
IN OTHER WORDS, THE GOVERNMENT'S IMMUNITY VANISHES IF THE TAX IS
COLLECTED FROM THE GOVERNMENT BY THE VENDOR INSTEAD OF BY A DIRECT
PAYMENT TO THE TAX COLLECTOR OF THE STATE. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS KING AND BOOZER SOLD LUMBER ON THE ORDER OF "COST-PLUS-A
FIXED-FEE" CONTRACTORS FOR USE BY THE LATTER IN CONSTRUCTING AN ARMY
CAMP FOR THE UNITED STATES.  THE QUESTION FOR DECISION IS WHETHER THE
ALABAMA SALES TAX WITH WHICH THE SELLER IS CHARGEABLE, BUT WHICH HE IS
REQUIRED TO COLLECT FROM THE BUYER, INFRINGES ANY CONSTITUTIONAL
IMMUNITY OF THE UNITED STATES FROM STATE TAXATION. 

THE ALABAMA STATUTE, ACT NO. 18, GENERAL ACTS OF ALABAMA, 1939,
EXPRESSLY MADE APPLICABLE TO SALES OF BUILDING MATERIALS TO
CONTRACTORS, SEC. I (J), LAYS A TAX OF 2 PER CENT ON THE GROSS RETAIL
SALES PRICE OF TANGIBLE PERSONAL PROPERTY.  WHILE IN TERMS, SEC. II,
THE TAX IS LAID ON THE SELLER, WHO IS DENOMINATED THE "TAXPAYER," BY
SEC. XXVI IT IS MADE THE DUTY OF THE SELLER "TO ADD TO THE SALES PRICE
AND COLLECT FROM THE PURCHASER THE AMOUNT DUE BY THE TAXPAYER ON
ACCOUNT OF SAID TAX." 

PAYABLE AS AND WHEN THE COLLECTION OF THE PURCHASE PRICE IS MADE.  THE
SUPREME COURT OF ALABAMA HAS CONSTRUED THESE PROVISIONS AS IMPOSING A
LEGAL OBLIGATION ON THE PURCHASER TO PAY THE TAX, WHICH THE SELLER IS
REQUIRED TO ADD TO HIS SALES PRICE AND TO COLLECT FROM THE PURCHASER
UPON COLLECTION OF THE PRICE, WHETHER THE SALE IS FOR CASH OR ON
CREDIT.  SEE LONE STAR CEMENT CORP. V. STATE TAX COMMISSION, 234 ALA.
465, 175 SO. 399; LONG V. ROBERTS & SON, 234 ALA. 570, 176 SO. 213;
NATIONAL LINEN SERVICE CORP. V. STATE TAX COMMISSION, 237 ALA. 360, 186
SO. 478; WOOD PRESERVING CORP. V. STATE TAX COMMISSION, 235 ALA. 438,
179 SO. 254.  SECTION V EXCLUDES FROM THE TAX THE PROCEEDS OF SALES
WHICH THE STATE IS PROHIBITED FROM TAXING BY THE CONSTITUTION OR LAWS
OF THE UNITED STATES. 

RESPONDENTS KING AND BOOZER, WHO FURNISHED THE LUMBER IN QUESTION ON
THE ORDER OF THE CONTRACTORS, APPEALED TO THE STATE CIRCUIT COURT FROM
AN ASSESSMENT OF THE TAX BY THE STATE DEPARTMENT OF REVENUE, ON THE
GROUND THAT THE TAX IS PROHIBITED BY THE CONSTITUTION BECAUSE LAID UPON
THE UNITED STATES, AND IS EXCLUDED FROM THE OPERATION OF THE TAXING
STATUTE BY ITS TERMS.  THE UNITED STATES WAS PERMITTED TO INTERVENE AND
JOINED IN THESE CONTENTIONS. 

THE TRIAL, UPON A STIPULATION OF FACTS EMBODYING THE RELEVANT
DOCUMENTS, RESULTED IN A DECREE SUSTAINING THE TAX, WHICH THE SUPREME
COURT OF ALABAMA REVERSED, 3 SO.2D 572.  APART FROM THE CONSTITUTIONAL
RESTRICTION, IT FOUND NO WANT OF AUTHORITY IN THE TAXING STATUTE FOR
THE COLLECTION OF THE TAX FROM THE CONTRACTORS.  BUT IT CONCLUDED THAT
ALTHOUGH THE CONTRACTORS WERE INDEBTED TO THE SELLER FOR THE PURCHASE
PRICE OF THE LUMBER, THEY WERE SO RELATED BY THEIR CONTRACT TO THE
GOVERNMENT'S UNDERTAKING TO BUILD A CAMP, AND WERE SO FAR ACTING FOR
THE GOVERNMENT IN THE ACCOMPLISHMENT OF THE GOVERNMENTAL PURPOSE, THAT
THE TAX WAS IN EFFECT "LAID ON A TRANSACTION BY WHICH THE UNITED STATES
SECURES THE THINGS DESIRED FOR GOVERNMENTAL PURPOSES," SO AS TO
INFRINGE THE CONSTITUTIONAL IMMUNITY, CITING PANHANDLE OIL CO. V. KNOX,
277 U.S. 218; GRAVES V. TEXAS CO., 298 U.S. 393.  WE GRANTED
CERTIORARI, 314 U.S. 599, THE QUESTION BEING ONE OF PUBLIC IMPORTANCE. 

CONGRESS HAS DECLINED TO PASS LEGISLATION IMMUNIZING FROM STATE
TAXATION CONTRACTORS UNDER "COST-PLUS" CONTRACTS FOR THE CONSTRUCTION
OF GOVERNMENTAL PROJECTS.  FN1  CONSEQUENTLY, THE PARTICIPANTS IN THE
PRESENT TRANSACTION ENJOY ONLY SUCH TAX IMMUNITY AS IS AFFORDED BY THE
CONSTITUTION ITSELF, AND WE ARE NOT NOW CONCERNED WITH THE EXTENT AND
THE APPROPRIATE EXERCISE OF THE POWER OF CONGRESS TO FREE SUCH
TRANSACTIONS FROM STATE TAXATION OF INDIVIDUALS IN SUCH CIRCUMSTANCES
THAT THE ECONOMIC BURDEN OF THE TAX IS PASSED ON TO THE NATIONAL
GOVERNMENT.  THE GOVERNMENT, RIGHTLY WE THINK, DISCLAIMS ANY CONTENTION
THAT THE CONSTITUTION, UNAIDED BY CONGRESSIONAL LEGISLATION, PROHIBITS
A TAX EXACTED FROM THE CONTRACTORS MERELY BECAUSE IT IS PASSED ON
ECONOMICALLY, BY THE TERMS OF THE CONTRACT OR OTHERWISE, AS A PART OF
THE CONSTRUCTION COST TO THE GOVERNMENT.  SO FAR AS SUCH A NON
DISCRIMINATORY STATE TAX UPON THE CONTRACTOR ENTERS INTO THE COST OF
THE MATERIALS TO THE GOVERNMENT, THAT IS BUT A NORMAL INCIDENT OF THE
ORGANIZATION WITHIN THE SAME TERRITORY OF TWO INDEPENDENT TAXING
SOVEREIGNTIES.  THE ASSERTED RIGHT OF THE ONE TO BE FREE OF TAXATION BY
THE OTHER DOES NOT SPELL IMMUNITY FROM PAYING THE ADDED COSTS,
ATTRIBUTABLE TO THE TAXATION OF THOSE WHO FURNISH SUPPLIES TO THE
GOVERNMENT AND WHO HAVE BEEN GRANTED NO TAX IMMUNITY.  SO FAR AS A
DIFFERENT VIEW HAS PREVAILED, SEE PANHANDLE OIL CO. V. KNOX, SUPRA;
GRAVES V. TEXAS CO., SUPRA, WE THINK IT NO LONGER TENABLE.  SEE METCALF
& EDDY V. MITCHELL, 269 U.S. 514; TRINITYFARM CO. V. GROSJEAN, 291 U.S.
466; JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 160; HELVERING V.
GERHARDT, 304 U.S. 405, 416; GRAVES V. NEW YORK EX REL. O'KEEFE, 306
U.S. 466. 

THE CONTENTION OF THE GOVERNMENT IS THAT THE TAX IS INVALID BECAUSE
IT IS LAID IN SUCH MANNER THAT, IN THE CIRCUMSTANCES OF THIS CASE, ITS
LEGAL INCIDENCE IS ON THE GOVERNMENT RATHER THAN ON THE CONTRACTORS,
WHO ORDERED THE LUMBER AND PAID FOR IT BUT WHO, AS THE GOVERNMENT
INSISTS, HAVE SO ACTED FOR THE GOVERNMENT AS TO PLACE IT IN THE ROLE OF
A PURCHASER OF THE LUMBER.  THE ARGUMENT RUNS:  THE GOVERNMENT WAS A
PURCHASER OF THE LUMBER, AND BUT FOR ITS IMMUNITY FROM SUIT AND FROM
TAXATION, THE STATE APPLYING ITS TAXING STATUTE COULD DEMAND THE TAX
FROM THE GOVERNMENT JUST AS FROM A PRIVATE INDIVIDUAL WHO HAD EMPLOYED
A CONTRACTOR TO DO CONSTRUCTION WORK UPON A LIKE COST-PLUS CONTRACT. 
THE SOUNDNESS OF THIS CONCLUSION TURNS ON THE TERMS OF THE CONTRACT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER IT.  THE TAXING
STATUTE, AS THE ALABAMA COURTS HAVE HELD, MAKES THE "PURCHASER" LIABLE
FOR THE TAX TO THE SELLER, WHO IS REQUIRED "TO ADD TO THE SALES PRICE"
THE AMOUNT OF THE TAX AND COLLECT IT WHEN THE SALES PRICE IS COLLECTED,
WHETHER THE SALE IS FOR CASH OR ON CREDIT.  WHO, IN ANY PARTICULAR
TRANSACTION LIKE THE PRESENT, IS A "PURCHASER" WITHIN THE MEANING OF
THE STATUTE, IS A QUESTION OF STATE LAW ON WHICH ONLY THE SUPREME COURT
OF ALABAMA CAN SPEAK WITH FINAL AUTHORITY.  BUT IT SEEMS PLAIN, AS THE
GOVERNMENT CONCEDES AND AS WE ASSUME FOR PRESENT PURPOSES, THAT UNDER
THE PROVISIONS OF THE STATUTE THE PURCHASER OF TANGIBLE GOODS WHO IS
SUBJECTED TO THE TAX MEASURED BY THE SALES PRICE, IS THE PERSON WHO
ORDERS AND PAYS FOR THEM WHEN THE SALE IS FOR CASH OR WHO IS LEGALLY
OBLIGATED TO PAY FOR THEM IF THE SALE IS ON CREDIT.  THE GOVERNMENT'S
CONTENTION IS THAT IT HAS A CONSTITUTIONAL IMMUNITY FROM STATE TAXATION
ON ITS PURCHASES AND THAT THIS WAS SUFFICIENTLY A GOVERNMENT PURCHASE
TO COME WITHIN THE ASSERTED IMMUNITY. 

AS THE SALE OF THE LUMBER BY KING AND BOOZER WAS NOT FOR CASH, THE
PRECISE QUESTION IS WHETHER THE GOVERNMENT BECAME OBLIGATED TO PAY FOR
THE LUMBER AND SO WAS THE PURCHASER WHOM THE STATUTE TAXES, BUT FOR THE
CLAIMED IMMUNITY.  BY THE COST-PLUS CONTRACT THE CONTRACTORS UNDERTOOK
TO "FURNISH THE LABOR, MATERIALS, TOOLS, MACHINERY, EQUIPMENT,
FACILITIES, SUPPLIES NOT FURNISHED BY THE GOVERNMENT, AND SERVICES, AND
TO DO ALL THINGS NECESSARY FOR THE COMPLETION OF" THE SPECIFIED WORK. 
IN CONSIDERATION OF THIS THE GOVERNMENT UNDERTOOK TO PAY A FIXED FEE TO
THE CONTRACTORS AND TO REIMBURSE THEM FOR SPECIFIED EXPENSES INCLUDING
THEIR EXPENDITURES FOR ALL SUPPLIES AND MATERIALS AND "STATE OR LOCAL
TAXES  ...  WHICH THE CONTRACTOR MAY BE REQUIRED ON ACCOUNT OF HIS
CONTRACT TO PAY."  THE CONTRACT PROVIDED THAT THE TITLE TO ALL
MATERIALS AND SUPPLIES FOR WHICH THE CONTRACTORS WERE "ENTITLED TO BE
REIMBURSED" SHOULD VEST IN THE GOVERNMENT "UPON DELIVERY AT THE SITE OF
THE WORK OR AT AN APPROVED STORAGE SITE AND UPON INSPECTION AND
ACCEPTANCE IN WRITING BY THE CONTRACTING OFFICER."  THE GOVERNMENT
RESERVED THE RIGHT TO FURNISH ANY AND ALL MATERIALS NECESSARY FOR
COMPLETION OF THE WORK, TO PAY FREIGHT CHARGES DIRECTLY TO COMMON
CARRIERS, AND "TO PAY DIRECTLY TO THE PERSONS CONCERNED ALL SUMS DUE
FROM THE CONTRACTOR FOR LABOR, MATERIALS OR OTHER CHARGES."  UPON
TERMINATION OF THE CONTRACT BY THE GOVERNMENT, IT UNDERTOOK TO "ASSUME
AND BECOME LIABLE FOR ALL OBLIGATIONS  ... THAT THE CONTRACTOR MAY HAVE
THERETOFORE IN GOOD FAITH UNDERTAKEN OR INCURRED IN CONNECTION WITH
SAID WORK AND IN ACCORDANCE WITH THE PROVISIONS OF THIS CONTRACT." 

A SECTION OF THE CONTRACT, DESIGNATED AS ONE OF SEVERAL "SPECIAL
REQUIREMENTS," STIPULATED THAT CONTRACTORS SHOULD "REDUCE TO WRITING
EVERY CONTRACT IN EXCESS OF TWO THOUSAND DOLLARS ($2,000) MADE BY HIM
FOR THE PURPOSE OF THE WORK HEREUNDER FOR SERVICES, MATERIALS, SUPPLIES
...  ; INSERT THEREIN A PROVISION THAT SUCH CONTRACT IS ASSIGNABLE TO
THE GOVERNMENT; MAKE ALL SUCH CONTRACTS IN HIS OWN NAME, AND NOT BIND
OR PURPORT TO BIND THE GOVERNMENT OR THE CONTRACTING OFFICER
THEREUNDER."  WHILE THIS SECTION REFERS TO CONTRACTS IN EXCESS OF
$2,000, WE THINK ALL THE PROVISIONS WHICH WE HAVE MENTIONED, READ
TOGETHER, PLAINLY CONTEMPLATE THAT THE CONTRACTORS WERE TO PURCHASE IN
THEIR OWN NAMES AND ON THEIR OWN CREDIT ALL THE MATERIALS REQUIRED,
UNLESS THE GOVERNMENT SHOULD ELECT TO FURNISH THEM; THAT THE GOVERNMENT
WAS NOT TO BE BOUND BY THEIR PURCHASE CONTRACTS, BUT WAS OBLIGATED ONLY
TO REIMBURSE THE CONTRACTORS WHEN THE MATERIALS PURCHASED SHOULD BE
DELIVERED, INSPECTED AND ACCEPTED AT THE SITE. 

THE COURSE OF BUSINESS FOLLOWED IN THE PURCHASE OF THE LUMBER
CONFORMED IN EVERY MATERIAL RESPECT TO THE CONTRACT.  KING AND BOOZER
SUBMITTED TO THE CONTRACTORS IN ADVANCE A PROPOSAL IN WRITING TO SUPPLY
AS ORDERED, AT SPECIFIED PRICES, ALL THE LUMBER OF CERTAIN DESCRIPTION
REQUIRED FOR USE IN PERFORMING THEIR CONTRACT WITH THE GOVERNMENT.  THE
CONTRACTORS, AFTER PROCURING APPROVAL BY THE CONTRACTING OFFICER OF THE
PARTICULAR WRITTEN ORDER FOR LUMBER WITH WHICH WE ARE PRESENTLY
CONCERNED, PLACED IT WITH KING AND BOOZER ON JANUARY 17, 1941.  IT
DIRECTED SHIPMENT TO THE CONSTRUCTION QUARTERMASTER AT THE SITE "FOR
ACCOUNT OF" THE CONTRACTORS AND STATED "THIS PURCHASE ORDER DOES NOT
BIND, NOR PURPORT TO BIND, THE UNITED STATES GOVERNMENT OR GOVERNMENT
OFFICERS."  KING AND BOOZER THEREUPON SHIPPED THE LUMBER ORDERED BY THE
CONTRACTORS BY CONTRACT TRUCKS TO THE SITE AS DIRECTED, WHERE IT WAS
USED IN PERFORMANCE OF THE CONTRACT.  THE SELLERS DELIVERED TO THE
CONTRACTORS THE INVOICE OF THE LUMBER, STATING THAT IT WAS "SOLD TO THE
UNITED STATES CONSTRUCTION QUARTERMASTER %" (FOR ACCOUNT OF) THE
CONTRACTORS.  FN2  THE INVOICE WAS THEN APPROVED BY THE CONSTRUCTION
QUARTERMASTER FOR PAYMENT; THE CONTRACTORS PAID KING AND BOOZER BY
THEIR CHECK THE AMOUNT OF THE INVOICE AND WERE LATER REIMBURSED BY THE
GOVERNMENT FOR THE COST OF THE LUMBER. 

WE THINK, AS THE SUPREME COURT OF ALABAMA HELD, THAT THE LEGAL EFFECT
OF THE TRANSACTION WHICH WE HAVE DETAILED WAS TO OBLIGATE THE
CONTRACTORS TO PAY FOR THE LUMBER.  THE LUMBER WAS SOLD AND DELIVERED
ON THE ORDER OF THE CONTRACTORS, WHICH STIPULATED THAT THE GOVERNMENT
SHOULD NOT BE BOUND TO PAY FOR IT.  IT WAS IN FACT PAID FOR BY THE
CONTRACTORS, WHO WERE REIMBURSED BY THE GOVERNMENT PURSUANT TO THEIR
CONTRACT WITH IT.  THE CONTRACTORS WERE THUS PURCHASERS OF THE LUMBER,
WITHIN THE MEANING OF THE TAXING STATUTE, AND AS SUCH WERE SUBJECT TO
THE TAX.  THEY WERE NOT RELIEVED OF THE LIABILITY TO PAY THE TAX EITHER
BECAUSE THE CONTRACTORS, IN A LOOSE AND GENERAL SENSE, WERE ACTING FOR
THE GOVERNMENT IN PURCHASING THE LUMBER OR, AS THE ALABAMA SUPREME
COURT SEEMS TO HAVE THOUGHT, BECAUSE THE ECONOMIC BURDEN OF THE TAX
IMPOSED UPON THE PURCHASER WOULD BE SHIFTED TO THE GOVERNMENT BY REASON
OF ITS CONTRACT TO REIMBURSE THE CONTRACTORS. 

THE GOVERNMENT, TO SUPPORT ITS THESIS THAT IT WAS THE PURCHASER,
INSISTS THAT TITLE TO THE LUMBER PASSED TO THE GOVERNMENT ON SHIPMENT
BY THE SELLER, AND POINTS TO THE VERY EXTENSIVE CONTROL BY THE
GOVERNMENT OVER ALL PURCHASES MADE BY THE CONTRACTORS.  IT EMPHASIZES
THE FACT THAT THE CONTRACT RESERVES TO GOVERNMENT OFFICERS THE DECISION
OF WHETHER TO BUY AND WHAT TO BUY; THAT PURCHASES OF MATERIALS OF $500
OR OVER COULD BE MADE BY THE CONTRACTORS ONLY WHEN APPROVED IN ADVANCE
BY THE CONTRACTING OFFICER; THAT THE GOVERNMENT RESERVED THE RIGHT TO
APPROVE THE PRICE, TO FURNISH THE MATERIALS ITSELF, IF IT SO ELECTED;
AND THAT IN THE CASE OF THE LUMBER PRESENTLY INVOLVED, THE GOVERNMENT
INSPECTED AND APPROVED THE LUMBER BEFORE SHIPMENT.  FROM THESE
CIRCUMSTANCES IT CONCLUDES THAT THE GOVERNMENT WAS THE PURCHASER.  THE
NECESSARY COROLLARY OF ITS POSITION IS THAT THE GOVERNMENT, IF A
PURCHASER WITHIN THE TAXING STATUTE, BECAME OBLIGATED TO PAY THE
PURCHASE PRICE. 

BUT HOWEVER EXTENSIVELY THE GOVERNMENT MAY HAVE RESERVED THE RIGHT TO
RESTRICT OR CONTROL THE ACTION OF THE CONTRACTORS IN OTHER RESPECTS,
NEITHER THE RESERVATION NOR THE EXERCISE OF THAT POWER GAVE TO THE
CONTRACTORS THE STATUS OF AGENTS OF THE GOVERNMENT TO ENTER INTO
CONTRACTS OR TO PLEDGE ITS CREDIT.  SEE UNITED STATES V. ALGOMA LUMBER
CO., 305 U.S. 415, 421; UNITED STATES V. DRISCOLL, 96 U.S. 421.  IT CAN
HARDLY BE SAID THAT THE CONTRACTORS WERE NOT FREE TO OBLIGATE
THEMSELVES FOR THE PURCHASE OF MATERIAL ORDERED.  THE CONTRACT
CONTEMPLATED THAT THEY SHOULD DO SO AND THAT THE GOVERNMENT SHOULD
REIMBURSE THEM FOR THEIR EXPENDITURES.  IT IS EQUALLY PLAIN THAT THEY
DID NOT ASSUME TO BIND THE GOVERNMENT TO PAY FOR THE LUMBER BY THEIR
ORDER, APPROVED BY THE CONTRACTING OFFICER, WHICH STIPULATED THAT IT
DID NOT BIND OR PURPORT TO BIND THE GOVERNMENT.  THE CIRCUMSTANCE THAT
THE TITLE TO THE LUMBER PASSED TO THE GOVERNMENT ON DELIVERY DOES NOT
OBLIGATE IT TO THE CONTRACTOR'S VENDOR UNDER A COST-PLUS CONTRACT MORE
THAN UNDER A LUMP SUM CONTRACT.  CF. JAMES V. DRAVO CONTRACTING CO.,
SUPRA; UNITED STATES V. DRISCOLL, SUPRA. 

WE CANNOT SAY THAT THE CONTRACTORS WERE NOT, OR THAT THE GOVERNMENT
WAS, BOUND TO PAY THE PURCHASE PRICE, OR THAT THE CONTRACTORS WERE NOT
THE PURCHASERS ON WHOM THE STATUTE LAYS THE TAX.  THE ADDED
CIRCUMSTANCE THAT THEY WERE BOUND BY THEIR CONTRACT TO FURNISH THE
PURCHASED MATERIAL TO THE GOVERNMENT AND ENTITLED TO BE REIMBURSED BY
IT FOR THE COST, INCLUDING THE TAX, NO MORE RESULTS IN AN INFRINGEMENT
OF THE GOVERNMENT IMMUNITY THAN DID THE TAX LAID UPON THE CONTRACTOR'S
GROSS RECEIPTS FROM THE GOVERNMENT IN JAMES V. DRAVO CONTRACTING CO.,
SUPRA.  SEE METCALF & EDDY V. MITCHELL, SUPRA, 523, 524; TRINITYFARM
CO. V. GROSJEAN, SUPRA, 472; HELVERING V. GERHARDT, SUPRA, 416; GRAVES
V. NEW YORK EX REL. O'KEEFE, SUPRA, 483.   REVERSED. 

FN1  SEE PROPOSED SENATE AMENDMENT NO. 120, TO H.R. 8438, WHICH
BECAME THE ACT OF JUNE 11, 1940, 54 STAT. 265; CONG. REC., 76TH CONG.,
3RD SESS., VOL. 86, PART 7, PP. 7518-19, 7527-7535, 7648. 

FN2  THE STATEMENT THAT THE LUMBER WAS "SOLD" TO THE CONSTRUCTION
QUARTERMASTER APPEARS TO HAVE BEEN INADVERTENT.  ON THE ARGUMENT THE
GOVERNMENT CONCEDED THAT THIS WAS NOT THE USUAL PRACTICE.  THE INVOICES
APPEARING OF RECORD IN CURRY V. UNITED STATES, POST, P. 14, ISSUED TO
THE SAME CONTRACTORS FOR SUPPLIES ORDERED BY THEM AND DELIVERED AT THE
SAME SITE STATED THAT THE SUPPLIES WERE SOLD TO THE CONTRACTORS. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














CURRY V. UNITED STATES, 314 U.S. 14 


NO. 603.  ARGUED OCTOBER 24, 1941.  - DECIDED NOVEMBER 10, 1941.  - 241
ALA. 569, 3 SO.2D 582, REVERSED. 


A STATE USE-TAX IMPOSED ON A CONTRACTOR IN RESPECT OF MATERIALS WHICH
HE PURCHASED OUTSIDE OF, AND USED WITHIN, THE STATE IN PERFORMANCE OF A
"COST-PLUS" CONTRACT WITH THE GOVERNMENT CAN NOT BE ADJUDGED INVALID AS
A TAX ON THE UNITED STATES, EITHER UPON THE ASSUMPTION THAT THE
CONTRACTOR IS THE GOVERNMENT'S AGENT OR REPRESENTATIVE IN THE MATTER,
WHICH IS NOT CORRECT, OR BECAUSE OF THE FACT THAT THE ECONOMIC BURDEN
OF THE TAX IS SHIFTED TO THE UNITED STATES WHEN THE GOVERNMENT,
PURSUANT TO THE CONTRACT, REIMBURSES THE CONTRACTOR FOR THE COST OF THE
MATERIALS, TAX INCLUDED.  ALABAMA V. KING & BOOZER, ANTE, P. 1.  P.
18. 

CURRY, COMMISSIONER OF REVENUE OF ALABAMA, V. UNITED STATES ET AL. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

CERTIORARI, POST, P. 599, TO REVIEW A DECREE OF THE SUPREME COURT OF
ALABAMA WHICH REVERSED A DECREE OF THE ALABAMA CIRCUIT COURT SUSTAINING
A USE TAX LAID ON GOVERNMENT CONTRACTORS.  THE SUIT WAS BROUGHT IN THE
LATTER COURT BY THE UNITED STATES AND THE CONTRACTORS AGAINST THE STATE
COMMISSIONER OF REVENUE TO DETERMINE THE TAX LIABILITY AND FOR A REFUND
OF PAYMENT MADE. 

THE ALABAMA USE TAX IS IMPOSED UPON THE USER. 

THE UNITED STATES IN STORING AND USING TANGIBLE PERSONAL PROPERTY IS
IMMUNE FROM USE TAX.  HERE, AS IN THE KING & BOOZER CASE, ANTE, P. 1,
THE PROBLEM ADMITS OF READY SOLUTION UNDER THE GUIDING PRINCIPLE THAT
THE UNITED STATES IS IMMUNE FROM ANY TAX IMPOSED UPON AND PAID BY THE
GOVERNMENT ITSELF.  AS THAT IMMUNITY INCLUDES A SALES TAX, IT INCLUDES,
A FORTIORI, A USE TAX COLLECTED DIRECTLY FROM THE CONSUMER OF THE
GOODS. 

THE IMMUNITY OF THE UNITED STATES IS NOT LOST WHEN IT STORES OR USES
GOODS THROUGH A COST-PLUS CONTRACTOR. 

MR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO ALABAMA V. KING & BOOZER, ANTE, P. 1.  IT
PRESENTS THE QUESTION WHETHER, BY THE COST-PLUS CONTRACT INVOLVED IN
THE KING & BOOZER CASE, THE CONTRACTORS, WHO ARE RESPONDENTS HERE, ARE
IMMUNE FROM THE USE TAX IMPOSED BY THE ALABAMA STATUTE, ACT NO. 67,
GENERAL ACTS OF ALABAMA, 1939, BECAUSE THE MATERIALS, WITH RESPECT TO
THE USE OF WHICH THE TAX WAS LAID, WERE ORDERED BY THE CONTRACTORS AND
USED BY THEM IN THE PERFORMANCE OF THEIR CONTRACT WITH THE GOVERNMENT. 

IMPOSED ON THE STORAGE, USE OR OTHER CONSUMPTION IN THIS STATE OF
TANGIBLE PERSONAL PROPERTY PURCHASED AT RETAIL  ...  FOR STORAGE, USE
OR OTHER CONSUMPTION IN THIS STATE AT THE RATE OF TWO PER CENT (2%) OF
THE SALES PRICE OF SUCH PROPERTY,  ...  (B)  ...  EVERY PERSON STORING,
USING OR OTHERWISE CONSUMING IN THIS STATE TANGIBLE PERSONAL PROPERTY
PURCHASED AT RETAIL SHALL BE LIABLE FOR THE TAX IMPOSED BY THIS ACT
...  "  SECTION III EXEMPTS FROM THE OPERATION OF THE STATUTE THE
STORAGE, USE OR OTHER CONSUMPTION OF PROPERTY, THE SALE OF WHICH IS
TAXED BY OTHER PROVISIONS OF THE STATUTES, AND THE STORAGE, USE OR
CONSUMPTION OF PROPERTY, TAXATION OF WHICH IS PROHIBITED BY THE
CONSTITUTION OR LAWS OF THE UNITED STATES. 

PETITIONER, COMMISSIONER OF REVENUE FOR THE STATE, ASSESSED AND
COLLECTED FROM THE CONTRACTORS A TAX ON THEIR USE OR CONSUMPTION,
WITHIN THE STATE, OF A QUANTITY OF ROOFING WHICH THEY PURCHASED OUTSIDE
THE STATE AND CAUSED TO BE SHIPPED TO THE CAMP-SITE WITHIN THE STATE,
WHERE THEY USED IT IN THE PERFORMANCE OF THEIR CONSTRUCTION CONTRACT
WITH THE GOVERNMENT.  THE PRESENT SUIT WAS BROUGHT BY THE UNITED STATES
AND THE CONTRACTORS IN THE STATE CIRCUIT COURT AGAINST PETITIONER,
INDIVIDUALLY AND AS COMMISSIONER, FOR A DECLARATORY JUDGMENT
DETERMINING THE TAX LIABILITY OF THE CONTRACTORS AND FOR A DECREE
ORDERING REFUND OF THE TAX PAID BY THE CONTRACTORS.  THE LAWFULNESS OF
THE TAX WAS CHALLENGED SPECIFICALLY ON THE GROUND THAT THE PLAINTIFFS,
RESPONDENTS HERE, ARE EXEMPT FROM THE TAX BY THE PROVISIONS OF THE
STATE STATUTE, AND ARE IMMUNE FROM IT, BECAUSE THE USE AND CONSUMPTION
OF THE ROOFING BY THE CONTRACTORS AS AGENTS OR INSTRUMENTALITIES OF THE
UNITED STATES IS CONSTITUTIONALLY IMMUNE FROM TAXATION. 

THE CIRCUIT COURT SUSTAINED THE TAX, DECLARING THAT IT WAS LAID UPON
THE CONTRACTORS BY THE STATUTE AND THAT THEY WERE NOT CONSTITUTIONALLY
IMMUNE FROM THE TAX BECAUSE OF THEIR USE OF THE PURCHASED PROPERTY IN
PERFORMANCE OF THEIR CONTRACT WITH THE UNITED STATES.  THE SUPREME
COURT OF ALABAMA REVERSED, 3 SO.2D 582, HOLDING THAT THE TAX INFRINGED
THE CONSTITUTIONAL IMMUNITY OF THE UNITED STATES, FOR REASONS STATED IN
ITS OPINION IN KING & BOOZER V. ALABAMA, 241 ALA. 557, 3 SO.2D 572.  WE
GRANTED CERTIORARI, 314 U.S. 599, SO THAT WE MIGHT CONSIDER THIS WITH
THE KING & BOOZER CASE. 

SINCE THE SUPREME COURT OF ALABAMA RESTED ITS DECISION ON THE
CONSTITUTIONAL GROUND AND NOT UPON THE INAPPLICABILITY OF THE TAXING
STATUTE TO THE CONTRACTORS, WE ASSUME FOR PRESENT PURPOSES, AS WE TAKE
IT THE STATE COURT ASSUMED, THAT THE CONTRACTORS ARE SUBJECT TO THE TAX
BUT FOR THE ASSERTED GOVERNMENT IMMUNITY, AND THAT UPON THE CORRECT
INTERPRETATION OF THE ALABAMA STATUTE THEY WOULD HAVE BEEN SUBJECT TO
THE TAX IF THEIR COST-PLUS CONTRACT HAD BEEN WITH A PRIVATE
INDIVIDUAL.  CF. FELT & TARRANT CO. V. GALLAGHER, 306 U.S. 62; SOUTHERN
PACIFIC CO. V. GALLAGHER, 306 U.S. 167; DEPARTMENT OF TREASURY V. WOOD
CORP., 313 U.S. 62. 

FOR THE REASONS STATED AT LENGTH IN OUR OPINION IN THE KING & BOOZER
CASE, WE THINK THAT THE CONTRACTORS, IN PURCHASING AND BRINGING THE
BUILDING MATERIAL INTO THE STATE AND IN APPROPRIATING IT TO THEIR
CONTRACT WITH THE GOVERNMENT, WERE NOT AGENTS OR INSTRUMENTALITIES OF
THE GOVERNMENT; AND THEY ARE NOT RELIEVED OF THE TAX, TO WHICH THEY
WOULD OTHERWISE BE SUBJECT, BY REASON OF THE FACT THAT THEY ARE
GOVERNMENT CONTRACTORS.  IF THE STATE LAW LAYS THE TAX UPON THEM RATHER
THAN THE INDIVIDUAL WITH WHOM THEY ENTER INTO A COST-PLUS CONTRACT LIKE
THE PRESENT ONE, THEN IT AFFECTS THE GOVERNMENT, LIKE THE INDIVIDUAL,
ONLY AS THE ECONOMIC BURDEN IS SHIFTED TO IT THROUGH OPERATION OF THE
CONTRACT.  AS POINTED OUT IN THE OPINION IN THE KING & BOOZER CASE, BY
CONCESSION OF THE GOVERNMENT AND ON AUTHORITY, THE CONSTITUTION,
WITHOUT IMPLEMENTATION BY CONGRESSIONAL LEGISLATION, DOES NOT PROHIBIT
A TAX UPON GOVERNMENT CONTRACTORS BECAUSE ITS BURDEN IS PASSED ON
ECONOMICALLY BY THE TERMS OF THE CONTRACT OR OTHERWISE AS A PART OF THE
CONSTRUCTION COST TO THE GOVERNMENT. 

UPON THE RECORD AS IT COMES TO US, WE ARE NOT CALLED UPON TO
DETERMINE WHETHER THE TAXING STATUTE IS APPLICABLE TO TRANSACTIONS OF
THE CONTRACTORS ON THE CAMP-SITE, A GOVERNMENT RESERVATION.  WE DECIDE
ONLY THE QUESTION PASSED UPON BY THE SUPREME COURT OF ALABAMA, THAT IF
THE STATUTE IS APPLICABLE TO, AND TAXES, THE CONTRACTORS UPON A COST
PLUS CONTRACT LIKE THE PRESENT, IF ENTERED INTO WITH A PRIVATE PERSON,
THEY ARE NOT IMMUNE FROM THE TAX WHEN, AS HERE, THE CONTRACT IS WITH
THE GOVERNMENT.  REVERSED. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











BERNARDS V. JOHNSON, 314 U.S. 19 


NO. 2.  REARGUED OCTOBER 14, 1941.  - DECIDED NOVEMBER 10, 1941.  - 103
F.2D 567, AFFIRMED. 


1.  WHERE THE CIRCUIT COURT OF APPEALS, TO AWAIT THE OUTCOME OF A
PETITION TO THIS COURT FOR CERTIORARI, STAYS THE ISSUE OF ITS MANDATE,
BUT ISSUES THE MANDATE AT A SUBSEQUENT TERM WHEN THE CERTIORARI IS
DENIED, IT HAS JURISDICTION AT THAT LATER TERM TO RECALL THE MANDATE
AND RECONSIDER THE APPEAL.  P. 29. 

2.  AN ORDER OF THE COURT OF BANKRUPTCY DISMISSING AN UNTIMELY
PETITION FOR REHEARING OR REVIEW DOES NOT EXTEND THE TIME FOR APPEAL
FROM THE ORIGINAL ORDER.  P. 31. 

3.  FARMER-BANKRUPTS, CLAIMING THAT FORECLOSURE PROCEEDINGS IN A
STATE COURT, WHEREBY MORTGAGE-CREDITORS HAD OBTAINED DEEDS TO LAND
PENDING THE BANKRUPTCY PROCEEDING, WERE VOID BECAUSE OF PROVISIONS OF
SEC. 75 OF THE BANKRUPTCY ACT, SOUGHT TO REOPEN FINAL ORDERS OF THE
BANKRUPTCY COURT SUSTAINING THE PROCEEDINGS.  THE TIME FOR APPEAL
HAVING EXPIRED, THAT COURT DISMISSED THE PETITION BECAUSE OF ITS
UNTIMELINESS, WITHOUT RE-EXAMINING THE ADJUDICATED MERITS.  HELD: 

(1)  THAT THE MERITS OF THE CLAIM WERE NOT OPEN UPON THE BANKRUPTS'
APPEAL TO THE CIRCUIT COURT OF APPEALS.  P. 32. 

(2)  ALTHOUGH THE BANKRUPTCY COURT, ACTING ON PRAYERS FOR AFFIRMATIVE
RELIEF IN THE ANSWERS OF THE MORTGAGEE-RESPONDENTS AND THE TRUSTEE,
MADE CERTAIN FINDINGS BASED UPON ADMISSIONS OF THE BANKRUPTS, AS TO THE
VALIDITY OF THE MORTGAGE TITLES, AND QUIETED THEM, AND MADE OTHER
FINDINGS, AND GAVE ITS APPROVALS AND INSTRUCTIONS TO THE TRUSTEES,
TOUCHING THE ADMINISTRATION OF THE ESTATE, THIS WAS NOT A REVIEW OF THE
BANKRUPTS' CLAIM AGAINST THE MORTGAGEES.  P. 31. 

(3)  OTHER FINDINGS, TO THE EFFECT THAT THE BANKRUPTS HAD MADE NO
ATTEMPT TO COMPLY WITH SEC. 75(S) OF THE ACT AND THAT THERE HAD BEEN NO
HOPE OR POSSIBILITY OF THEIR FINANCIAL REHABILITATION, WERE NOT
NECESSARY TO THE DECISION OF QUESTIONS PRESENTED AND DID NOT RENDER
THEIR DISPOSITION ERRONEOUS.  P. 31. 

4.  THE REMEDY FOR CORRECTING ERRONEOUS ORDERS AND DECREES OF THE
BANKRUPTCY COURT SUSTAINING FORECLOSURE PROCEEDINGS IN A STATE COURT
AND TITLES EMANATING THEREFROM, OVER THE BANKRUPT'S CLAIM THAT BECAUSE
OF PROVISIONS OF SEC. 75 OF THE BANKRUPTCY ACT THE PROCEEDINGS AND
TITLES ARE VOID, IS BY TIMELY APPLICATION FOR REVIEW OR BY TIMELY
APPEAL.  P. 32. 

BERNARDS ET AL. V. JOHNSON ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 310 U.S. 616, TO REVIEW A DECREE OF THE CIRCUIT COURT OF
APPEALS AFFIRMING ORDERS OF THE DISTRICT COURT IN BANKRUPTCY.  THE
ORDERS REFUSED TO REOPEN CERTAIN EARLIER ORDERS SUSTAINING FORECLOSURES
IN A STATE COURT, UPON THE GROUND THAT THEY WERE FINAL ADJUDICATIONS
AND THAT THE TIME ALLOWED FOR REVIEWING THEM HAD EXPIRED.  THEY ALSO
RATIFIED ORDERS OF A CONCILIATION COMMISSIONER, AND IN EFFECT DIRECTED
THAT THE CAUSE PROCEED AS AN ORDINARY BANKRUPTCY AND NOT UNDER SEC.
75(S) OF THE BANKRUPTCY ACT.  PETITION FOR CERTIORARI WAS DENIED, 308
U.S. 595.  A SECOND PETITION FOR CERTIORARI WAS GRANTED, 310 U.S. 616,
UPON WHICH, AFTER ARGUMENT, THERE WAS AN AFFIRMANCE BY AN EQUAL
DIVISION OF OPINION AMONG THE JUSTICES, 313 U.S. 537.  A REHEARING WAS
ORDERED, 313 U.S. 597. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE TOOK THIS CASE BECAUSE IT PRESENTS IMPORTANT QUESTIONS OF
APPELLATE PRACTICE UNDER SEC. 75 FN1  OF THE BANKRUPTCY ACT. 

THE PETITIONERS, WHO ARE ADJUDICATED BANKRUPTS, ATTACK AN ORDER AND A
DECREE OF THE DISTRICT COURT, WHICH WERE AFFIRMED BY THE CIRCUIT COURT
OF APPEALS.  FN2  THE RESPONDENTS ARE MORTGAGEES WHO PURCHASED PROPERTY
OF THE BANKRUPTS AT FORECLOSURE SALES, AND THE TRUSTEE IN BANKRUPTCY. 

THE PETITIONERS WERE OWNERS OF LAND IN OREGON.  APRIL 12, 1933, THE
RESPONDENT, COLLINS, BROUGHT FORECLOSURE PROCEEDINGS ON A MORTGAGE
WHICH WAS A FIRST LIEN ON A PORTION OF THE LAND.  APRIL 6, 1934, TWO OF
THE RESPONDENTS, JOHNSON AND UNITED STATES NATIONAL BANK (HEREIN, FOR
THE SAKE OF BREVITY, REFERRED TO AS JOHNSON) INSTITUTED A FORECLOSURE
SUIT UNDER A MORTGAGE WHICH WAS SECURED BY A PLEDGE OF PERSONALTY AND
WAS ALSO A FIRST LIEN ON ALL THE LAND NOT COVERED BY THE COLLINS
MORTGAGE, AND A SECOND LIEN ON THE TRACT MORTGAGED TO COLLINS.  JULY
11, 1934, A STATE COURT ENTERED A DECREE OF FORECLOSURE IN THE LATTER
SUIT. 

AUGUST 10, 1934, THE PETITIONERS JOINTLY APPLIED TO THE DISTRICT
COURT, AS FARMERS, FOR COMPOSITION OR EXTENSION OF THEIR INDEBTEDNESS. 
ON THE SAME DAY THE COURT RESTRAINED, UNTIL FURTHER ORDER, ANY SALE
UNDER THE JOHNSON MORTGAGE, AND REFERRED THE CAUSE TO A CONCILIATION
COMMISSIONER.  THAT OFFICER HAVING REPORTED, ON THE REFERENCE AND ON A
RE-REFERENCE, FAILURE TO AGREE ON A COMPOSITION OR EXTENSION, THE
PETITIONERS, DECEMBER 19, 1934, RECITING THE FAILURE AND THEIR DESIRE
TO HAVE THE BENEFITS OF THE BANKRUPTCY ACT, AND PARTICULARLY OF SUB
EACH OF THEM BE ADJUDGED BY THIS COURT TO BE BANKRUPTS, WITHIN THE
PURVIEW OF SAID ACTS OF CONGRESS."  AN ADJUDICATION AS TO EACH
PETITIONER WAS ENTERED, AND, DECEMBER 20, 1934, THE CASE WAS REFERRED
TO A REFEREE. 

FEBRUARY 8, 1935, THE BANKRUPTS PETITIONED FOR THE APPOINTMENT OF
APPRAISERS AND TO BE ALLOWED TO RETAIN POSSESSION OF THEIR PROPERTY, AS
PROVIDED IN SUB-SECTION (S). 

FEBRUARY 18, 1935, THE RESTRAINING ORDER OF AUGUST 10, 1934, WAS
VACATED AS SUPERFLUOUS, INASMUCH AS SUB-DIVISIONS (A) TO (R) OF SEC. 75
ARE SELF-EXECUTING.  FN4  MAY 21, 1935, APPRAISERS WERE APPOINTED.  MAY
27, 1935, THIS COURT HELD SUB-SECTION (S) UNCONSTITUTIONAL.  FN5 

JUNE 28, 1935, THE PETITIONERS APPLIED FOR A RE-REFERENCE OF THEIR
ORIGINAL PETITION FOR COMPOSITION OR EXTENSION TO A CONCILIATION
COMMISSIONER.  THE APPLICATION WAS DENIED BY THE COURT ON THE GROUND
THAT THEY HAD BEEN ADJUDGED BANKRUPTS AND THAT THEIR BANKRUPTCY
PROCEEDING WAS THEN PENDING BEFORE A REFEREE.  NO APPEAL WAS TAKEN. 

JUNE 29, 1935, JOHNSON PURCHASED THE MORTGAGED REALTY AND THE PLEDGED
PERSONALTY AT A SALE IN THE JOHNSON FORECLOSURE SUIT, HELD PURSUANT TO
ORDER OF THE STATE COURT, AND THE SALE WAS CONFIRMED JULY 20, 1935. 
THE PETITIONERS APPEARED AND OPPOSED CONFIRMATION, BUT DID NOT APPEAL
FROM THE DECREE. 

AUGUST 26, 1935, A SALE WAS MADE TO COLLINS PURSUANT TO A FORECLOSURE
DECREE ENTERED BY THE STATE COURT, JULY 9, 1935, UNDER THE COLLINS
MORTGAGE, AND THE SALE WAS CONFIRMED SEPTEMBER 16, 1935. 

A NEW SUB-SECTION (S), TO REPLACE THAT HELD UNCONSTITUTIONAL, HAVING
BEEN ADOPTED AUGUST 28, 1935,  FN6  THE PETITIONERS, SEPTEMBER 30,
1935, RECITING THEIR ADJUDICATION AS BANKRUPTS AND THE REFERENCE OF THE
CASE TO A REFEREE, AND, RELYING ON THE NEWLY ADOPTED SUB-SECTION (S),
WHICH AUTHORIZES CONCILIATION COMMISSIONERS TO ACT AS REFEREES IN SEC.
75 CASES SUBSEQUENT TO ADJUDICATION, MOVED THE COURT TO RECALL THE
PROCEEDINGS FROM THE REFEREE.  BY ORDER OF EVEN DATE THE PRIOR
REFERENCE WAS RECALLED, AND THE REFEREE WAS DIRECTED TO REMIT THE
RECORD TO THE COURT. 

ALTHOUGH, UNDER THE OREGON LAW, A PURCHASER AT FORECLOSURE SALE IS
ENTITLED TO POSSESSION OF THE LAND FROM THE DAY OF SALE,  FN7  THE
DEBTORS REMAINED IN POSSESSION.  TO OUST THEM, JOHNSON APPLIED TO THE
STATE COURT FOR A WRIT OF ASSISTANCE.  OCTOBER 3, 1935, THE BANKRUPTCY
COURT, AT PETITIONERS' INSTANCE, TEMPORARILY RESTRAINED THE SHERIFF
FROM EXECUTING ANY SUCH WRIT. 

BY ORDER OF OCTOBER 15, 1935, THE COURT, RECITING THE ADJUDICATION OF
DECEMBER 19, 1934, REFERRED THE BANKRUPTCY CASE TO A CONCILIATION
COMMISSIONER. 

DECEMBER 18, 1935, THE COURT DISSOLVED THE TEMPORARY RESTRAINING
ORDER AGAINST THE SHERIFF, FOR THE REASONS THAT THE PROPERTY HAD BEEN
SOLD PURSUANT TO AN EXECUTION IN THE JOHNSON FORECLOSURE AND THE SALE
DULY CONFIRMED; THAT, WHEN THESE STEPS WERE TAKEN, THE STATE COURT HAD
JURISDICTION ACQUIRED PRIOR TO THE COMMENCEMENT OF THE PROCEEDINGS
UNDER SEC. 75; AND THAT THE EXECUTION OF THE WRIT OF ASSISTANCE WOULD
NOT, THEREFORE, INTERFERE WITH ANY PROPERTY OF THE BANKRUPT.  NO APPEAL
WAS TAKEN FROM THE ORDER, THE WRIT OF ASSISTANCE ISSUED, AND THE
PETITIONERS WERE DISPOSSESSED JANUARY 25, 1936. 

THE PERIOD OF REDEMPTION FROM THE SALE IN THE JOHNSON FORECLOSURE
EXPIRED JUNE 29, 1936, AND, ON JULY 1, A SHERIFF'S DEED WAS DELIVERED. 

JULY 15, 1936, THE BANKRUPTS FILED WITH THE CONCILIATION COMMISSIONER
A PETITION RECITING THE INSTITUTION OF THE EXTENSION PROCEEDING, ITS
FUTILITY, THE CONSEQUENT ADJUDICATION OF BANKRUPTCY, THE SHERIFF'S SALE
UNDER THE JOHNSON MORTGAGE, AND ITS CONFIRMATION.  THEY ALLEGED THAT
THEY WERE FARMERS WITHIN SEC. 75 AS AMENDED AUGUST 28, 1935, AND WERE,
UNDER THE TERMS OF THE STATUTE, ENTITLED TO THE POSSESSION OF THE
MORTGAGED PROPERTY AND ITS PROCEEDS; THAT JOHNSON WAS ENDEAVORING TO
EXERCISE CONTROL OF, AND EXCLUDE THEM FROM, THE PROPERTY.  THEY PRAYED
AN ORDER GRANTING THEM IMMEDIATE POSSESSION, CONTROL, AND MANAGEMENT OF
THE REAL ESTATE, AND RESTRAINING THE SHERIFF, JOHNSON, AND COLLINS
"FROM TRANSFERRING WITHOUT PURCHASE OF SAID PROPERTY IN ACCORDANCE WITH
THE FRAZER-LEMKE ACT AS AMENDED"; AND FOR A FURTHER ORDER "SPECIFICALLY
EXTENDING THE PERIOD OF REDEMPTION AS PROVIDED" IN THE ACT. 

JOHNSON FILED AN ANSWER AND CROSS-PETITION, WHICH IS NOT INCLUDED IN
THE TRANSCRIPT OF RECORD CERTIFIED TO THIS COURT.  THE DEBTORS REPLIED,
ASKING THAT THE ANSWER BE DISMISSED; THAT THEY BE ACCORDED THE FULL
BENEFITS OF THE ACT; THAT THE SHERIFF'S DEED BE CANCELLED; AND THAT
JOHNSON BE REQUIRED TO ACCOUNT FOR ALL CROPS HARVESTED AND PROPERTY
REMOVED FROM THE LAND. 

AUGUST 8, 1936, THE COMMISSIONER FOUND THAT THE BANKRUPTS HAD NEVER
PETITIONED UNDER THE NEW SUB-SECTION (S) FOR APPRAISAL, THE SETTING
ASIDE OF THEIR EXEMPT PROPERTY, AND FOR POSSESSION OF THEIR PROPERTY
UNDER THE CONTROL OF THE COURT; THAT APPRAISERS HAD NEVER BEEN
APPOINTED OR THE PROPERTY APPRAISED; THAT NO ORDER IN RESPECT OF
EXEMPTIONS OR FOR POSSESSION BY THE BANKRUPTS HAD EVER BEEN MADE; THAT
NO STAY ORDER HAD BEEN ENTERED; THAT NO RENTAL HAD EVER BEEN FIXED;
THAT NO ORDER OF ANY SORT HAD BEEN MADE UNDER THE AMENDED SUB-SECTION
EXCEPT THE ORDERS RECALLING THE PROCEEDINGS FROM THE REFEREE AND
REFERRING THEM TO THE COMMISSIONER; THAT THE BANKRUPTS ARE NOT FARMERS
WITHIN THE DEFINITION OF THE ACT; THAT ON AUGUST 28, 1935, WHEN THE NEW
SUB-SECTION (S) TOOK EFFECT, THEY HAD ONLY AN EQUITY OF REDEMPTION IN
THE LANDS, EXCEPT FOR THE TRACT COVERED BY THE COLLINS MORTGAGE; AND
THAT THE NEW SUB-SECTION (S) WAS UNCONSTITUTIONAL.  HE ENTERED A DECREE
TO THE EFFECT THAT SINCE JUNE 29, 1935, THE DATE OF THE FORECLOSURE
SALE, THE BANKRUPTCY COURT HAD HAD NO JURISDICTION OF THE LAND THEN
SOLD; THAT THE NEW SUB-SECTION (S) HAD NO APPLICATION TO ANY OF THE
LAND SOLD IN FORECLOSURE; THAT THE BANKRUPTS WERE NOT FARMERS WITHIN
THE MEANING OF THE ACT, AND WERE NOT ENTITLED TO THE BENEFITS OF THE
ACT; THAT THEIR PETITION SHOULD BE DENIED; AND THAT A TRUSTEE SHOULD BE
APPOINTED TO LIQUIDATE THE ESTATE. 

THE TIME FIXED BY STANDING RULE OF THE DISTRICT COURT FOR PETITIONING
FOR A REVIEW OF A REFEREE'S ORDER IN BANKRUPTCY IS TWENTY DAYS.  NO
APPLICATION WAS MADE WITHIN THAT TIME TO HAVE THE ORDER REVIEWED. 

AUGUST 29, 1936, THE CREDITORS ELECTED, AND THE COMMISSIONER
THEREUPON APPOINTED, THE RESPONDENT LOOMIS TRUSTEE; AND, SEPTEMBER 3,
THE COMMISSIONER ENTERED AN ORDER APPROVING HIS BOND. 

SEPTEMBER 10, 1936, THE YEAR FOR REDEMPTION FROM THE SALE IN THE
COLLINS FORECLOSURE HAVING EXPIRED, THE SHERIFF DELIVERED HIS DEED TO
COLLINS AS PURCHASER. 

SEPTEMBER 19, 1936, THE BANKRUPTS FILED WITH THE COMMISSIONER A
"NOTICE OF APPEAL" FROM THE ORDERS OF AUGUST 29 AND SEPTEMBER 3. 
TREATING THE NOTICE AS A PETITION FOR REVIEW, THE COMMISSIONER FILED
HIS CERTIFICATE WITH THE DISTRICT COURT. 

MEANTIME, ADMINISTRATION OF THE ESTATE PROCEEDED AS IN ORDINARY
BANKRUPTCY, AND APPRAISERS WERE APPOINTED, SEPTEMBER 25, 1936.  OCTOBER
23, THEY FILED AN APPRAISEMENT OF THE PROPERTY OF THE BANKRUPTS, NOT
INCLUDING THAT WHICH HAD BEEN SOLD IN FORECLOSURE. 

DECEMBER 15, 1936, THE DISTRICT COURT ENTERED A DECREE CONFIRMING THE
COMMISSIONER'S ORDERS OF AUGUST 29 AND SEPTEMBER 3.  NO APPEAL WAS
TAKEN. 

JANUARY 4, 1937, THE BANKRUPTS FILED WITH THE COMMISSIONER A PETITION
RECITING THEIR ADJUDICATION AS BANKRUPTS, AND PRAYING THAT THE
COMMISSIONER PROCEED WITH THE APPRAISAL OF THEIR PROPERTY; THAT HE
RESCIND THE ORDER OF AUGUST 8, 1936; THAT HE REMOVE THE TRUSTEE BECAUSE
THE LATTER WAS NOT ELECTED BY THE REQUISITE MAJORITY IN AMOUNT OF
UNSECURED CREDITORS, AND WAS AN IMPROPER PERSON; THAT THE TRUSTEE BE
ORDERED TO ACCOUNT FOR ALL PROPERTY COMING INTO HIS POSSESSION; AND
THAT THE BANKRUPT'S EXEMPTIONS BE SET ASIDE TO THEM.  THEY ASKED FOR
OTHER SPECIFIC RELIEF, NOT NECESSARY TO DETAIL, AND FOR GENERAL
RELIEF.  JANUARY 11, 1937, THE COMMISSIONER ORDERED THE PETITION
DISMISSED, "FOR THE REASON THAT ALL MATTERS AND THINGS IN SAID PETITION
ALLEGED HAVE HERETOFORE BEEN CONSIDERED UPON PETITION FILED BY SAID
BANKRUPTS AND DECIDED ADVERSELY TO SAID BANKRUPTS, AND SAID ORDERS HAVE
ALL BECOME FINAL AND CONCLUSIVE." 

JANUARY 13, 1937, THE BANKRUPTS FILED IN THE DISTRICT COURT A
PETITION FOR AN ORDER RESTRAINING THE TRUSTEE FROM SELLING THE PERSONAL
PROPERTY OF THE ESTATE.  THE PETITION WAS DENIED TWO DAYS LATER.  NO
APPEAL WAS TAKEN. 

JANUARY 15, 1937, THEY FILED IN THE DISTRICT COURT A PETITION
WHEREIN, AFTER PRAYING THAT ALL THE FILES IN THE CASE BE INCORPORATED
BY REFERENCE, THEY SET OUT IN SUMMARY A HISTORY OF THE PROCEEDING FROM
THE FILING OF THE ORIGINAL PETITION FOR EXTENSION OR COMPOSITION,
ATTACKED MANY OF THE ORDERS THERETOFORE MADE, PRAYED THAT THEIR FAILURE
TO SEEK A REVIEW OF THE ORDER OF THE COMMISSIONER OF AUGUST 8, 1936,
WITHIN THE TIME LIMITED FOR THAT PURPOSE BE EXCUSED; THAT THE COURT
REVIEW THE ENTIRE PROCEEDING, REVERSE ALL PREVIOUS ORDERS OF THE
COMMISSIONER, AND HOLD THE PETITIONERS FARMERS ENTITLED TO THE BENEFITS
OF THE ACT; THAT THE COURT TREAT THE PETITION "AS EXCEPTIONS TO SAID
DECISIONS OF THE COMMISSIONER," AND GRANT THE PETITIONERS APPROPRIATE
RELIEF, AND, MEANTIME, RESTRAIN THE TRUSTEE FROM SELLING ANY PERSONAL
PROPERTY OF THE ESTATE. 

JANUARY 29, 1937, THEY FILED WITH THE COURT A PETITION FOR REVIEW OF
THE COMMISSIONER'S ORDER OF JANUARY 11, 1937, DISMISSING THEIR PETITION
OF JANUARY 4, 1937. 

TO THE PETITION OF JANUARY 15, 1937, JOHNSON AND COLLINS FILED
ANSWERS RECITING THE VARIOUS STEPS IN THE PROCEEDING, AND THE ORDERS
MADE BY THE COMMISSIONER AND THE COURT, AS TO WHICH THERE HAD BEEN NO
REVIEW OR APPEAL; AND ALLEGING THAT ALL THE ISSUES RAISED IN THE
PETITION HAD CONSEQUENTLY BEEN FINALLY ADJUDICATED AGAINST THE
PETITIONERS. 

IN ADDITION, EACH ANSWER RECITED THE PROCEEDINGS IN THE STATE COURT
AS THEY ARE ABOVE OUTLINED, AND ASSERTED THAT AS A RESULT OF THOSE
PROCEEDINGS EACH RESPONDENT HAD ACQUIRED TITLE AND POSSESSION, AND THAT
THE BANKRUPT, BERNARDS, WAS INTERFERING WITH THAT POSSESSION, AND
PRAYED THAT THEIR TITLE MIGHT BE QUIETED.  THE TRUSTEE IN BANKRUPTCY
ALSO FILED AN ANSWER SETTING UP THE FINALITY OF THE UNAPPEALED AND
UNREVIEWED ORDERS IN THE CAUSE AND PRAYING CERTAIN RELIEF. 

APRIL 13, 1938, THE BANKRUPTS FILED IN THE COURT A MOTION TO VACATE
AND SET ASIDE "ALL ORDERS OF THIS COURT, AND OF ALL THE REFEREES AND
CONCILIATION COMMISSIONERS WHERE IT WAS SOUGHT TO SET ASIDE OR DELAY
THE CARRYING OUT OF ANY OF THE PROVISIONS OF THE BANKRUPT ACT" AND TO
REINSTATE THE CAUSE.  THE GROUNDS ASSIGNED WERE TO THE EFFECT THAT THE
COURT, THE REFEREE AND CONCILIATION COMMISSIONER HAD FAILED TO COMPLY
WITH THE ACT.    THE DISTRICT COURT HELD A SINGLE HEARING UPON THE
PETITION OF JANUARY 15, 1937, THE PETITION FOR REVIEW OF JANUARY 29,
1937, AND THE MOTION OF APRIL 13, 1938.  THE BANKRUPTS ADMITTED THE
TRUTH OF THE FACTS SET UP BY THE RESPONDENTS IN THEIR CROSS-PETITIONS,
BUT NOT THEIR LEGAL EFFECT.  AS ALL THE FACTS WERE OF RECORD OR
ADMITTED NO TESTIMONY WAS TAKEN. 

MAY 10, 1938, THE COURT AFFIRMED THE COMMISSIONER'S ORDER OF JANUARY
11, 1937.  UPON THE PETITION OF JANUARY 15, 1937, AND THE MOTION OF
APRIL 13, 1938, THE COURT MADE FINDINGS OF FACT AND STATED CONCLUSIONS
OF LAW WHICH WERE EMBODIED IN THE ORDER AND DECREE ENTERED.  THIS
DISMISSED THE PETITION AND DENIED THE MOTION, QUIETED THE TITLE OF THE
MORTGAGE-CREDITOR RESPONDENTS AS AGAINST THE BANKRUPTS TO THE LANDS
PURCHASED BY THEM AT FORECLOSURE SALE, RATIFIED AND APPROVED THE ORDERS
OF THE COMMISSIONER, AND IN EFFECT DIRECTED THAT THE CAUSE PROCEED AS
AN ORDINARY BANKRUPTCY AND NOT UNDER SEC. 75(S). 

IN ITS FINDINGS THE COURT DETAILS THE HISTORY OF THE PROCEEDING AND
RECITES THE ORDER OF THE COURT OF DECEMBER 18, 1935, THE ORDER OF THE
COMMISSIONER OF AUGUST 8, 1936, THE ORDER OF THE COURT OF DECEMBER 15,
1936, AFFIRMING THE COMMISSIONER'S ORDERS OF AUGUST 29 AND SEPTEMBER 3,
1936, AND FINDS WITH RESPECT TO EACH THAT NO REVIEW WAS PRAYED OR
APPEAL TAKEN WITHIN THE TIME LIMITED BY RULE OR BY LAW AND THAT EACH OF
THEM HAD BECOME FINAL. 

THE BANKRUPTS TOOK ONE APPEAL FROM THE ORDER AFFIRMING ON REVIEW THE
COMMISSIONER'S ORDER OF JANUARY 11, 1937, AND THE ORDER AND DECREE
DISMISSING THEIR PETITION OF JANUARY 13, 1937, AND THEIR MOTION OF
APRIL 13, 1938, AND GRANTING THE RELIEF ASKED BY THE RESPONDENTS. 

MAY 2, 1939, THE CIRCUIT COURT OF APPEALS AFFIRMED BOTH ORDERS.  MAY
25, 1939, THAT COURT STAYED ITS MANDATE UNTIL JULY 15, AND, DIRECTED
THAT IF A PETITION TO THIS COURT FOR CERTIORARI SHOULD BE DOCKETED BY
THAT DATE, THE MANDATE SHOULD BE STAYED UNTIL AFTER WE HAD PASSED UPON
THE PETITION. 

A PETITION FOR CERTIORARI WAS DOCKETED JULY 10, 1939, AND WAS DENIED
OCTOBER 23.  THE MANDATE OF THE CIRCUIT COURT OF APPEALS ISSUED OCTOBER
28.  A MOTION MADE NOVEMBER 4, TO RECALL THE MANDATE AND HOLD IT
PENDING OUR DECISION IN JOHN HANCOCK MUTUAL LIFE INSURANCE CO. V.
BARTELS, 308 U.S. 180, WAS DENIED NOVEMBER 6.  THE BARTELS CASE WAS
DECIDED DECEMBER 4, 1939.  JANUARY 2, 1940, THE PETITIONERS PRESENTED
TO THE CIRCUIT COURT OF APPEALS A MOTION "FOR RECALL AND CORRECTION,
AMENDMENT, REVISION OR OPENING AND VACATING MANDATE AND JUDGMENT
ENTERED THEREON," UPON THE GROUND THAT THE COURT'S DECISION WAS
CONTRARY TO OURS IN THE BARTELS CASE. 

JANUARY 2, 1940, THIS COURT DECIDED KALB V. FEUERSTEIN, 308 U.S. 433,
AND, JANUARY 18, THE BANKRUPTS SUPPLEMENTED THEIR PENDING MOTION,
ALLEGING THAT OUR DECISION WAS IN CONFLICT WITH THAT OF THE CIRCUIT
COURT OF APPEALS IN THE INSTANT CASE. 

MARCH 22, 1940, THE CIRCUIT COURT OF APPEALS DENIED THE MOTION, AND,
APRIL 12, THE BANKRUPTS AGAIN PETITIONED FOR CERTIORARI, ASSERTING THAT
THE COURT HAD DISREGARDED OUR TWO DECISIONS IN HOLDING THAT THE
BANKRUPTS' INABILITY TO REHABILITATE THEMSELVES WAS A RELEVANT FACTOR
IN APPRAISING THEIR RIGHT TO RESORT TO SEC. 75(S), AND IN HOLDING
FURTHER THAT THE AUTOMATIC STAY CREATED BY SUB-SECTION (O) DID NOT
SURVIVE ADJUDICATION UNDER SUB-SECTION (S), AND HAD REFUSED, ALTHOUGH
IT HAD THE POWER, TO RECALL ITS MANDATE SO AS TO CORRECT ITS ERRONEOUS
CONSTRUCTION OF THE ACT.  WE GRANTED CERTIORARI APRIL 29, 1940. 

THREE QUESTIONS EMERGE FROM THIS LONG AND COMPLICATED RECORD.  THEY
ARE: 

1.  ASSUMING THE DECISION OF THE CIRCUIT COURT OF APPEALS WAS
ERRONEOUS, HAD IT POWER TO RECALL ITS MANDATE AND RECONSIDER THE
APPEAL?  WE HOLD THAT IT HAD. 

2.  ASSUMING THE CHALLENGED ORDERS OF THE COMMISSIONER AND THE COURT
WERE ERRONEOUS, WERE THEY FINAL, BINDING, AND IMPREGNABLE TO SUBSEQUENT
ATTACK, SINCE REVIEW OR APPEAL WAS NOT SOUGHT OR TAKEN WITHIN THE TIME
LIMITED BY COURT RULE OR BY LAW?  WE HOLD THAT THEY WERE. 

3.  HAD THE STATE COURT JURISDICTION TO PROCEED WITH FORECLOSURE AND
TO INVEST THE MORTGAGE CREDITORS, AS PURCHASERS AT THE EXECUTION SALES,
WITH VALID TITLE TO THE MORTGAGED LANDS?  WE HOLD THAT IT HAD. 

FIRST.  THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS WAS RENDERED IN
ITS OCTOBER 1938 TERM.  THE STAY OF THE MANDATE DID NOT END, AND THE
MANDATE WAS NOT ISSUED, UNTIL THAT TERM HAD EXPIRED.  THE APPLICATION
FOR RECALL OF THE MANDATE WAS PRESENTED WITHIN THE FOLLOWING TERM,
DURING WHICH THE MANDATE HAD GONE DOWN.  THE RESPONDENTS ASSERT THAT
THE COURT LACKED AUTHORITY, AFTER THE TERM IN WHICH ITS JUDGMENT WAS
RENDERED, TO RECALL ITS MANDATE AND TO AMEND ITS JUDGMENT IN MATTER OF
SUBSTANCE. 

IN GRANTING THE STAY, THE CIRCUIT COURT OF APPEALS MIGHT HAVE
EXTENDED THE TERM SO THAT IT COULD FURTHER CONSIDER THE CASE AFTER THIS
COURT HAD ACTED ON THE PETITION FOR CERTIORARI.  WE THINK THAT, BY
STAYING THE ISSUE OF THE MANDATE AND RETAINING THE CAUSE UNTIL AFTER
THE SUBSEQUENT TERM HAD OPENED, THE COURT, IN EFFECT, DID EXTEND THE
TERM AS RESPECTS THE INSTANT CASE AND THAT, UPON DISPOSITION OF THE
PETITION FOR CERTIORARI, IT HAD POWER TO TAKE FURTHER STEPS IN THE
CAUSE DURING THE TERM IN WHICH THE STAY EXPIRED AND THE MANDATE
ISSUED. 

SECOND.  THE DISTRICT COURT DISPOSED OF THREE DISTINCT MATTERS IN THE
ORDERS UNDER REVIEW:  THE PETITION FOR REVIEW OF THE COMMISSIONER'S
ORDERS OF JANUARY 11, 1937, THE PETITION OF JANUARY 15, 1937, AND THE
MOTION OF APRIL 13, 1938. 

THE COURT DISMISSED THE PETITION FOR REVIEW.  THE COMMISSIONER HAD
DENIED THE PETITION OF JANUARY 4, 1937, ON THE SOLE GROUND "THAT ALL
THE MATTERS AND THINGS SET OUT IN SAID PETITION HAVE BEEN PREVIOUSLY
ADJUDICATED AND NO REVIEW THEREOF HAS BEEN HAD, OR IF REVIEW WAS TAKEN,
SUCH ACTIONS OF THE REFEREE HAVE BEEN APPROVED ON REVIEW," AND THAT
"ALL MATTERS AND THINGS IN SAID PETITION ALLEGED HAVE HERETOFORE BEEN
CONSIDERED UPON PETITION FILED BY SAID BANKRUPTS AND DECIDED ADVERSELY
TO SAID BANKRUPTS, AND SAID ORDERS HAVE ALL BECOME FINAL AND
CONCLUSIVE."  THE ORDER AFFIRMING THE ACTION OF THE COMMISSIONER DID
NOT DEAL WITH THE MERITS.  THE COURT CLEARLY AFFIRMED THE
COMMISSIONER'S REFUSAL TO CONSIDER THE PETITION FOR THE REASON STATED
BY HIM. 

IN DISMISSING THE PETITION OF JANUARY 15, 1937, AND THE MOTION OF
APRIL 13, 1938, THE COURT MADE FINDINGS OF FACT AND STATED CONCLUSIONS
OF LAW COVERING BOTH.  IT ENTERED WHAT IT DENOMINATED AN "ORDER AND
DECREE" WITH RESPECT TO BOTH, AND, AS ABOVE NOTED, DISMISSED BOTH THE
PETITION AND THE MOTION, ON THE STATED GROUND THAT ALL ISSUES THEREIN
RAISED HAD BEEN FINALLY ADJUDICATED AND NO REVIEW OR APPEAL HAD BEEN
TIMELY SOUGHT OR TAKEN. 

IF THE RESPONDENTS HAD NOT CROSS-PETITIONED FOR AFFIRMATIVE RELIEF,
THE DISTRICT COURT NEED HAVE TAKEN NO FURTHER ACTION THAN IT DID IN
DISMISSING THE BANKRUPTS' PETITION AND MOTION.  AN ORDER DENYING A
PETITION FOR REHEARING OR REVIEW, WHICH IS DISMISSED BECAUSE THE
PETITION WAS FILED OUT OF TIME, WITHOUT RECONSIDERATION OF THE MERITS,
DOES NOT EXTEND THE TIME FOR APPEAL FROM THE ORIGINAL ORDER.  FN8  BUT
THERE REMAINED FOR DISPOSITION THE PRAYERS OF THE RESPONDENTS FOR
AFFIRMATIVE RELIEF.  THE ADDITIONAL PROVISIONS OF THE DECREE WERE IN
ANSWER TO THESE PRAYERS.  AS THOSE PROVISIONS WERE ASSIGNED AS ERROR,
THE CIRCUIT COURT OF APPEALS HAD JURISDICTION TO REVIEW THEM. 

UPON THE ADMISSION OF COUNSEL FOR THE BANKRUPTS, THE DISTRICT COURT
FOUND THE FACTS AS TO THE FORECLOSURE PROCEEDINGS AND FOUND THAT THEY
WERE BEFORE A COURT HAVING JURISDICTION; THAT THE TITLES ACQUIRED
THROUGH THE EXECUTION SALES WERE GOOD AS AGAINST THE BANKRUPTS, AND
QUIETED THE TITLES OF THE MORTGAGEES AS PURCHASERS.  WITH RESPECT TO
THE RELIEF AND THE INSTRUCTIONS PRAYED BY THE TRUSTEE, THE COURT MADE
CERTAIN FINDINGS AS TO WHAT HAD BEEN DONE IN THE ADMINISTRATION OF THE
ESTATE, CONFIRMED THAT ACTION, AND INSTRUCTED THE TRUSTEE AS TO HIS
FURTHER PROCEEDINGS.  THESE FINDINGS AND THESE PROVISIONS OF THE DECREE
OBVIOUSLY WERE MADE IN RESPONSE TO THE CROSS-PETITIONS OF THE
RESPONDENTS.  THEY CANNOT BE CONSIDERED AS A REVIEW OF THE MERITS
REQUESTED BY THE PETITIONERS. 

THE COURT ALSO FOUND THAT THE BANKRUPTS HAD MADE NO ATTEMPT TO COMPLY
WITH THE NEW SUB-SECTION (S) OF SEC. 75; THAT THEY HAD, EVER SINCE THE
FILING OF THEIR PETITION FOR ADJUDICATION ON DECEMBER 19, 1934, BEEN
BEYOND ALL HOPE OF FINANCIAL REHABILITATION; THAT THERE WAS NO
POSSIBILITY OF SUCH REHABILITATION.  SUCH FINDINGS CONSTITUTE NO BASIS
EITHER FOR A REFUSAL TO ADJUDICATE THE FARMER-PETITIONER A BANKRUPT
UNDER SEC. 75(S) OR FOR DISMISSING THE CAUSE INSTEAD OF FOLLOWING THE
PROCEDURE OUTLINED IN THE SUB-SECTION.  FN9  IN THE INSTANT CASE,
HOWEVER, THESE FINDINGS, THOUGH EVIDENTLY DIRECTED TO THE RELIEF PRAYED
BY THE RESPONDENTS, WERE NOT NECESSARY TO THE DECISION OF ANY OF THE
QUESTIONS THEY SUBMITTED TO THE COURT AND DO NOT RENDER ERRONEOUS THE
PROPER DISPOSITION OF THE ISSUES SUBMITTED. 

THIRD.  THE PETITIONERS URGE THAT THE AUTOMATIC STAY IMPOSED BY SUB
SUB-SECTION (N), CONTINUED THROUGHOUT THE CASE; AND THAT ALL ACTION
TAKEN IN THE STATE COURT WAS, THEREFORE, VOID UNDER THE DOCTRINE
ANNOUNCED IN KALB V. FEUERSTEIN, SUPRA.  THE RESPONDENTS INSIST THAT,
IN ORDER TO CONTINUE THE EXTENSION AND HAVE THE BENEFIT OF THE STAY
AFTER THE CONCLUSION OF THE CONCILIATION PROCEEDINGS AND THE
ADJUDICATION IN BANKRUPTCY, TIMELY APPLICATION TO THE BANKRUPTCY COURT
TO THAT END HAD TO BE MADE BY THE PETITIONERS.  WE FIND IT UNNECESSARY
TO DISCUSS OR DECIDE THE IMPORTANT QUESTION THUS MOOTED, FOR THE REASON
THAT THE ORDERS AND DECREES ENTERED BY THE BANKRUPTCY COURT, IF VALID,
RELIEVED THE RESPONDENTS, AS MORTGAGEES, OF ANY DISABILITY TO PURSUE
THEIR FORECLOSURE SUITS ARISING OUT OF THE PENDENCY OF THE BANKRUPTCY
PROCEEDING AND LEFT THEM FREE TO PROSECUTE THE FORECLOSURES IN THE
STATE COURTS.  HOWEVER ERRONEOUS THE CHALLENGED ORDERS, THE REMEDY FOR
THEIR CORRECTION WAS BY TIMELY APPLICATION FOR REVIEW OR TIMELY
APPEAL.  FN10  SINCE THE DISTRICT COURT REFUSED TO REVIEW THESE ORDERS
AND DECREES OUT OF TIME, THE PETITIONERS COULD NOT ATTACK THEM IN THE
CIRCUIT COURT OF APPEALS. 

THE JUDGMENT IS AFFIRMED. 

FN1  11 U.S.C. SEC. 203. 

FN2  103 F.2D 567. 

FN3  THE SUB-SECTION WAS ADDED TO SEC. 75 BY THE ACT OF JUNE 28,
1934, 48 STAT. 1289. 

FN4  IT APPEARS FROM THE RECORD THAT THIS ORDER WAS ENTERED NUNC PRO
TUNC ON AUGUST 31, 1938, THE COURT RECITING THAT, THROUGH INADVERTENCE,
THE ORDER WAS NOT ENTERED WHEN MADE, ALTHOUGH SHOWN ON THE CLERK'S
NOTES, AND WITHIN THE RECOLLECTION OF THE JUDGE.  THE PETITIONERS DO
NOT CHALLENGE THE VERITY OF THE RECITAL. 

FN5  LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555. 

FN6  ACT OF AUGUST 28, 1935, 49 STAT. 942, 943. 

FN7  OREGON CODE, 1930, SEC. 3-510.  SALES OF PERSONAL PROPERTY ARE
WITHOUT REDEMPTION; DIXIE MEADOWS CO. V. KIGHT, 150 ORE.  395, 405, 45
P.2D 909. 

FN8  BOWMAN V. LOPERENA, 311 U.S. 262, 266. 

FN9  JOHN HANCOCK MUTUAL INS. CO. V. BARTELS, 308 U.S. 180, 184-185. 

FN10  UNION JOINT STOCK LAND BANK V. BYERLY, 310 U.S. 1, 10. 
..END :



















REITZ V. MEALEY, 314 U.S. 33 


NO. 21.  REARGUED OCTOBER 22, 1941.  - DECIDED NOVEMBER 10, 1941.  - 34
F.SUPP.  532, AFFIRMED. 


1.  SECTION 94-B OF THE VEHICLE AND TRAFFIC LAW OF NEW YORK, AS
ORIGINALLY ENACTED, PROVIDES THAT ONE AGAINST WHOM A JUDGMENT IS
RENDERED FOR INJURY RESULTING FROM THE OPERATION OF A MOTOR CAR AND WHO
FAILS TO PAY IT WITHIN A TIME DESIGNATED, SHALL HAVE HIS LICENSE AND
REGISTRATION SUSPENDED FOR THREE YEARS, UNLESS IN THE MEANTIME THE
JUDGMENT IS SATISFIED OR DISCHARGED, EXCEPT BY DISCHARGE IN BANKRUPTCY;
AND THAT THE SUSPENSION SHALL PERSIST, AFTER THE THREE YEARS OR THE
SATISFACTION OF THE JUDGMENT, AND UNTIL THE LICENSEE GIVES PROOF OF HIS
ABILITY TO RESPOND IN DAMAGES BY THE PROCUREMENT OF INSURANCE, THE
GIVING OF A BOND OR THE POSTING OF A DEPOSIT.  HELD CONSISTENT WITH DUE
PROCESS OF LAW AND NOT IN DEROGATION OF THE BANKRUPTCY ACT.  P. 36. 

2.  THE AMENDMENT OF SEC. 94-B, SUPRA, BY THE ACT OF MAY 4, 1936,
N.Y. LAWS, C. 448, WHICH PROVIDES THAT "IF THE CREDITOR CONSENTS IN
WRITING, THE DEBTOR MAY BE ALLOWED A LICENSE AND REGISTRATION FOR SIX
MONTHS FROM THE DATE OF SUCH CONSENT AND THEREAFTER UNTIL THE CONSENT
IS REVOKED IN WRITING, IF PROOF OF ABILITY TO RESPOND TO DAMAGES IS
FURNISHED," IS NOT INCONSISTENT WITH DUE PROCESS OF LAW.  P. 37. 

3.  ASSUMING THAT AMENDMENTS OF SEC. 94-B, SUPRA, BY N.Y. LAWS, 1936,
C. 448, ID. 1939, C. 618, ARE CONTRARY TO THE BANKRUPTCY ACT BECAUSE OF
THE POWER THEY PURPORT TO GIVE THE JUDGMENT CREDITOR OVER THE LICENSE
OF THE DEBTOR WHO HAS BEEN DISCHARGED IN BANKRUPTCY, THE AMENDMENTS ARE
SEVERABLE AND THEIR INVALIDITY WOULD NOT AFFECT PROCEEDINGS BASED
ENTIRELY ON THE ORIGINAL STATUTE.  P. 38. 

4.  UNDER THE LAW OF NEW YORK, A STATUTE, IN ITSELF CONSTITUTIONAL,
IS NOT AFFECTED BY AN UNCONSTITUTIONAL AMENDMENT.  P. 38. 

5.  WHETHER AN AMENDMENT STANDS BY ITSELF AS AN INDEPENDENT
ENACTMENT, OR IS INCORPORATED IN THE SETTING OF THE ACT WHICH IT
AMENDS, BY A PROVISION THAT THE ACT "SHALL READ AS FOLLOWS:"  IS A
MATTER OF DRAFTSMANSHIP OR LEGISLATIVE MECHANICS.  IT DOES NOT TOUCH
THE SUBSTANCE OF CONSTITUTIONALITY.  P. 39. 

REITZ V. MEALEY, COMMISSIONER OF MOTOR VEHICLES OF THE STATE OF NEW
YORK. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES DISMISSING
A BILL TO ENJOIN THE ABOVE-NAMED COMMISSIONER FROM SUSPENDING THE
PLAINTIFF-APPELLANT'S AUTOMOBILE DRIVING LICENSE.  THE HEARING BELOW
WAS ON BILL AND ANSWER.  THE DECREE WAS AFFIRMED HERE BY AN EQUALLY
DIVIDED COURT, 313 U.S. 542; SUBSEQUENTLY, A PETITION FOR REHEARING WAS
GRANTED, THE JUDGMENT WAS VACATED, AND THE CASE WAS RESTORED TO THE
DOCKET FOR REARGUMENT, 313 U.S. 597. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT TO RESTRAIN THE APPELLEE FROM ENFORCING A SUSPENSION
OF THE APPELLANT'S DRIVER'S LICENSE.  THE COMPLAINT ALLEGES THAT THE
ORDER SUSPENDING THE LICENSE WAS ISSUED MAY 29, 1940, PURSUANT TO SEC.
94-B OF THE VEHICLE AND TRAFFIC LAW OF NEW YORK,  FN1  UPON RECEIPT BY
THE APPELLEE, FROM THE CLERK OF THE SUPREME COURT OF ALBANY COUNTY, OF
A TRANSCRIPT OF A JUDGMENT, ACCOMPANIED BY EVIDENCE OF ITS FINALITY AND
NONPAYMENT, RENDERED AGAINST THE APPELLANT IN THE SUM OF $5,138.25, IN
AN ACTION TO RECOVER DAMAGES FOR PERSONAL INJURIES CAUSED BY
APPELLANT'S OPERATION OF AN AUTOMOBILE.  IT IS ALLEGED THAT ON JUNE 21,
1940, THE APPELLANT WAS ADJUDICATED A BANKRUPT AND HIS CAUSE REFERRED
TO A REFEREE; THAT THE JUDGMENT WAS SCHEDULED AS A DEBT; AND, ALTHOUGH
NO DISCHARGE HAD BEEN GRANTED, THE JUDGMENT IS A DISCHARGEABLE DEBT. 
THE COMPLAINT CHARGES THAT SEC. 94-B VIOLATES THE DUE PROCESS CLAUSE OF
THE 14TH AMENDMENT AND IS RENDERED VOID BY SEC. 17 OF THE BANKRUPTCY
ACT.  FN2  A TEMPORARY AND A PERMANENT INJUNCTION ARE PRAYED.  A
RESTRAINING ORDER ISSUED.  THE ANSWER OF THE APPELLEE ADMITS ALL OF THE
RELEVANT ALLEGATIONS EXCEPT THAT THE JUDGMENT WAS DISCHARGEABLE IN
BANKRUPTCY.  UPON THE HEARING OF A MOTION FOR INJUNCTION, BASED UPON
THE BILL AND ANSWER, A COURT OF THREE JUDGES DENIED THE INJUNCTION AND
DISMISSED THE BILL.  FN3  AT THE ARGUMENT BEFORE US IT WAS ADMITTED
THAT A DISCHARGE HAS BEEN GRANTED AND THAT THE JUDGMENT DEBT IS THEREBY
DISCHARGED. 

REGISTRATION CERTIFICATE OF ANY PERSON IF A JUDGMENT AGAINST HIM, FOR
INJURY TO PERSON OR PROPERTY RESULTING FROM THE OPERATION OF A MOTOR
CAR, BE NOT PAID WITHIN FIFTEEN DAYS, UPON CERTIFICATION OF THE
JUDGMENT, ITS FINALITY, AND NONPAYMENT, TO THE COMMISSIONER BY THE
COUNTY CLERK.  IT DIRECTS THE COMMISSIONER TO SUSPEND THE LICENSE FOR
THREE YEARS UNLESS, IN THE MEANTIME, THE JUDGMENT IS SATISFIED OR
DISCHARGED, EXCEPT BY A DISCHARGE IN BANKRUPTCY.  THE SUSPENSION
PERSISTS AFTER THE EXPIRATION OF THE THREE YEARS OR SATISFACTION OF THE
JUDGMENT, UNTIL THE LICENSEE GIVES PROOF OF HIS ABILITY TO RESPOND IN
DAMAGES BY THE PROCUREMENT OF INSURANCE, THE GIVING OF A BOND, OR THE
POSTING OF A DEPOSIT.  FN4  THE COUNTY CLERK IS REQUIRED TO CERTIFY TO
THE COMMISSIONER ANY SUCH JUDGMENT UNAPPEALED AND UNSATISFIED FOR
FIFTEEN DAYS AFTER ENTRY. 

SO THE STATUTE STOOD UNTIL MAY 4, 1936, WHEN, BY AN AMENDATORY ACT,
FN5  A PROVISO WAS ADDED THAT, IF THE CREDITOR CONSENTS IN WRITING, THE
DEBTOR MAY BE ALLOWED A LICENSE AND REGISTRATION FOR SIX MONTHS FROM
THE DATE OF SUCH CONSENT AND THEREAFTER UNTIL THE CONSENT IS REVOKED IN
WRITING, IF PROOF OF ABILITY TO RESPOND TO DAMAGES IS FURNISHED.  A
FURTHER AMENDMENT, OF MAY 31, 1939,  FN6  MADE IT THE DUTY OF THE
COUNTY CLERK TO CERTIFY THE JUDGMENT ONLY UPON WRITTEN DEMAND OF THE
CREDITOR OR HIS ATTORNEY. 

THE PURPOSE OF THE STATUTE IS CLEAR.  IT IS NOT A CONDITION OF THE
GRANT OF LICENSE THAT THE APPLICANT SHALL HAVE INSURANCE.  INSTEAD, THE
POLICY OF THE STATE IS THAT, IF A DRIVER HAS AN ACCIDENT IN RESPECT OF
WHICH A JUDGMENT CONVICTS HIM OF NEGLIGENCE, HIS LICENSE WILL BE
SUSPENDED AND SO REMAIN UNLESS HE FURNISHES PROOF OF HIS ABILITY TO
RESPOND FOR DAMAGE THEREAFTER CAUSED; AND THAT, IN ANY EVENT, IT WILL
BE SUSPENDED FOR THREE YEARS UNLESS, IN THE MEANTIME, THE JUDGMENT IS
SATISFIED OR THE CREDITOR CONSENTS THAT THE LICENSE BE REINSTATED AND
REMAIN IN FORCE. 

FIRST.  THE STATUTE, LEAVING OUT OF CONSIDERATION THE AMENDMENTS, IS
NOT OBNOXIOUS TO THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT.  THE USE
OF THE PUBLIC HIGHWAYS BY MOTOR VEHICLES, WITH ITS CONSEQUENT DANGERS,
RENDERS THE REASONABLENESS AND NECESSITY OF REGULATION APPARENT.  THE
UNIVERSAL PRACTICE IS TO REGISTER OWNERSHIP OF AUTOMOBILES AND TO
LICENSE THEIR DRIVERS.  ANY APPROPRIATE MEANS ADOPTED BY THE STATES TO
INSURE COMPETENCE AND CARE ON THE PART OF ITS LICENSEES AND TO PROTECT
OTHERS USING THE HIGHWAY IS CONSONANT WITH DUE PROCESS.  SOME STATES
REQUIRE INSURANCE, OR ITS EQUIVALENT, AS A CONDITION OF THE ISSUE OF A
LICENSE.  NEW YORK CHOSE TO OBTAIN THE SAME END BY PROVIDING FOR THE
REVOCATION OR SUSPENSION OF A LICENSE IF THE HOLDER IS ADJUDGED GUILTY
OF NEGLIGENT DRIVING.  SECTION 94-B PERMITS THE RESTORATION OF THE
LICENSE UPON PAYMENT OR SATISFACTION OF THE JUDGMENT.  AS THE COURT
BELOW HAS HELD, THE EFFECT OF THE STATUTE AS IT STOOD PRIOR TO THE
AMENDMENT OF 1936 WAS TO MAKE THE LICENSE PRIVILEGE A FORM OF
PROTECTION AGAINST DAMAGE TO THE PUBLIC INFLICTED THROUGH THE
LICENSEE'S CARELESSNESS.  FN7 

SECOND.  PRIOR TO THE AMENDMENT OF 1936, THE LICENSE COULD NOT BE
RESTORED UNTIL THREE YEARS HAD EXPIRED FROM ITS SUSPENSION, UNLESS THE
JUDGMENT WERE PAID OR DISCHARGED, EXCEPT BY A DISCHARGE IN BANKRUPTCY,
AND UNLESS, ALSO, THE LICENSEE FURNISHED PROOF OF HIS ABILITY TO
RESPOND IN DAMAGES FOR ANY FUTURE ACCIDENT. 

IF THE STATUTE WENT NO FURTHER, WE ARE CLEAR THAT IT WOULD CONSTITUTE
A VALID EXERCISE OF THE STATE'S POLICE POWER NOT INCONSISTENT WITH SEC.
17 OF THE BANKRUPTCY ACT.  THE PENALTY WHICH SEC. 94-B IMPOSES FOR
INJURY DUE TO CARELESS DRIVING IS NOT FOR THE PROTECTION OF THE
CREDITOR MERELY, BUT TO ENFORCE A PUBLIC POLICY THAT IRRESPONSIBLE
DRIVERS SHALL NOT, WITH IMPUNITY, BE ALLOWED TO INJURE THEIR FELLOWS. 
THE SCHEME OF THE LEGISLATION WOULD BE FRUSTRATED IF THE RECKLESS
DRIVER WERE PERMITTED TO ESCAPE ITS PROVISIONS BY THE SIMPLE EXPEDIENT
OF VOLUNTARY BANKRUPTCY, AND, ACCORDINGLY, THE LEGISLATURE DECLARED
THAT A DISCHARGE IN BANKRUPTCY SHOULD NOT INTERFERE WITH THE OPERATION
OF THE STATUTE.  SUCH LEGISLATION IS NOT IN DEROGATION OF THE
BANKRUPTCY ACT.  RATHER IT IS AN ENFORCEMENT OF PERMISSIBLE STATE
POLICY TOUCHING HIGHWAY SAFETY. 

THIRD.  THE APPELLANT INSISTS THAT THE SECTION AS AMENDED, AND AS IT
WAS AT THE TIME THE JUDGMENT WAS RENDERED AGAINST HIM, VIOLATES THE DUE
PROCESS CLAUSE AND RUNS AFOUL OF THE BANKRUPTCY ACT IN VIRTUE OF THE
POWER GIVEN THE CREDITOR TO HAVE THE JUDGMENT CERTIFIED TO THE
COMMISSIONER OF MOTOR VEHICLES, THAT IS, THE POWER TO BRING SEC. 94-B
INTO OPERATION, AND THE FURTHER POWER TO SUSPEND THE OPERATION OF THE

THE CLAIM OF DEPRIVATION OF RIGHTS WITHOUT DUE PROCESS OF LAW IS
FRIVOLOUS.  THE STATE HAS SEEN FIT TO GIVE THE PLAINTIFF AN ADDITIONAL
MEANS OF ENFORCING THE PAYMENT OF A JUDGMENT FOR DAMAGES INFLICTED IN
THE OPERATION OF A MOTOR VEHICLE BY DEALING WITH THE REGISTRATION AND
LICENSE OF THE DRIVER.  THE GRANT OF THIS ADDITIONAL REMEDY IS NOT
INCONSISTENT WITH THE CONCEPT OF DUE PROCESS. 

A MORE SERIOUS QUESTION ARISES IN CONNECTION WITH SEC. 17 OF THE
BANKRUPTCY ACT.  THE DISCHARGE OF THE DEBTOR IS A DEFENSE AVAILABLE
AGAINST A SUIT ON THE JUDGMENT AND AGAINST EXECUTION PROCESS ISSUED
UPON IT.  AND THERE IS FORCE IN THE ARGUMENT THAT SEC. 94-B, AS
AMENDED, IN TRUTH DEPRIVES THE DEBTOR OF THE IMMUNITY AFFORDED BY HIS
DISCHARGE, LEAVES OUT OF VIEW THE PUBLIC POLICY OF THE STATE OR MAKES
THAT PUBLIC POLICY SUBSERVIENT TO THE PRIVATE INTEREST OF THE CREDITOR
BY AFFORDING HIM THE OPPORTUNITY TO INITIATE, REMOVE AND REVIVE THE
SUSPENSION OF THE LICENSE UPON TERMS AS TO PAYMENTS ON ACCOUNT OF HIS
CLAIM. 

THE DISTRICT COURT HELD THAT IT NEED NOT CONSIDER THE VALIDITY OF THE
AMENDMENT OF 1939, WHICH REQUIRES THE COUNTY CLERK TO CERTIFY THE
JUDGMENT ONLY UPON THE REQUEST OF THE CREDITOR.  UNDER THE OLD LAW IT
WAS THE DUTY OF THE COUNTY CLERK TO CERTIFY EVERY SUCH JUDGMENT WHICH
HAD BECOME FINAL AND REMAINED UNSATISFIED FOR FIFTEEN DAYS.  IT IS TRUE
THAT THE BILL ALLEGES THE JUDGMENT IN THIS CASE WAS CERTIFIED AT THE
REQUEST OF THE PLAINTIFF'S ATTORNEY.  BUT IF THE AMENDMENT IS VOID,
BECAUSE IT CONFERS A POWER ON THE CREDITOR INCONSISTENT WITH THE EFFECT
OF THE DEBTOR'S DISCHARGE, AND IS ELIMINATED FROM THE STATUTE FOR THAT
REASON, IT STILL REMAINS THAT UNDER THE OLD LAW THE COUNTY CLERK'S DUTY
TO CERTIFY WAS MANDATORY, AND THIS JUDGMENT WOULD HAVE BEEN CERTIFIED
IF HE HAD PERFORMED HIS OFFICIAL DUTY. 

THE COURT ALSO FOUND IT UNNECESSARY TO PASS UPON THE VALIDITY OF THE
1936 AMENDMENT.  THE POWER OF THE CREDITOR TO LIFT THE SUSPENSION AND
RESTORE IT DURING THE PERIOD OF THREE YEARS DOES NOT APPEAR TO HAVE
BEEN INVOKED IN THE PRESENT CASE.  IF THE CREDITOR ATTEMPTS TO EXERCISE
THAT POWER, THE COMMISSIONER WILL HAVE TO DETERMINE WHETHER THE
AMENDMENT GIVING THE CREDITOR SUCH POWER IS VALID. 

THE COURT WAS OF THE VIEW THAT IF THE AMENDMENTS ARE INVALID, AS
INCONSISTENT WITH SEC. 17 OF THE BANKRUPTCY ACT, THEY ARE SEVERABLE,
AND THAT THE STATUTE MAY STAND AS A COMPLETE ACT WITHOUT THEM, SINCE,
UNDER THE LAW OF NEW YORK, A STATUTE, IN ITSELF CONSTITUTIONAL, IS NOT
AFFECTED BY AN UNCONSTITUTIONAL AMENDMENT; - THE AMENDMENT DROPPING OUT
AND THE ORIGINAL ACT REMAINING IN FORCE.  DECISIONS OF THE HIGHEST
COURT OF THE STATE ARE CITED TO THIS EFFECT.  FN8 

THESE DECISIONS HOLD THAT, WHERE THE ORIGINAL AND AMENDING ACTS WERE
ENACTED BY DIFFERENT LEGISLATURES, IT CANNOT BE THOUGHT THAT THE
ORIGINAL ACT WOULD NOT HAVE BEEN RETAINED EXCEPT FOR THE AMENDMENTS,
AND THIS PRINCIPLE HAS BEEN APPLIED WHERE THE AMENDING ACT DECLARES, AS
IT DOES IN THIS INSTANCE, THAT THE ORIGINAL ACT IS "AMENDED TO READ AS
FOLLOWS" AND THEN CONTAINS A REDRAFT OF THE ENTIRE ACT WITH THE
AMENDMENT INSERTED.  WHETHER AN AMENDMENT STANDS BY ITSELF AS AN
INDEPENDENT ENACTMENT, OR IS INCORPORATED IN THE SETTING OF THE ACT
WHICH IT AMENDS, BY A PROVISION THAT THE ACT "SHALL READ AS FOLLOWS:"
IS A MATTER OF DRAFTSMANSHIP OR LEGISLATIVE MECHANICS.  IT DOES NOT
TOUCH THE SUBSTANCE OF CONSTITUTIONALITY. 

THERE IS NO EVIDENCE OF INTENT THAT IF THE AMENDMENTS COULD NOT STAND
THE LEGISLATION AS A WHOLE SHOULD FAIL.  ON THE CONTRARY, THE
LEGISLATIVE HISTORY DISCLOSES A PERSISTENT PURPOSE THAT SUCH A SCHEME
FOR THE CONTROL OF MOTOR DRIVERS SHOULD REMAIN.  SUCCESSIVE AND
FREQUENT AMENDMENTS HAVE DEALT WITH DETAILS BUT HAVE LEFT INTACT THE
MAJOR FEATURES OF THE LEGISLATION.  FN9  IN ANY CASE, WE SHOULD ACCORD
GREAT WEIGHT TO THE DISTRICT COURT'S VIEW OF NEW YORK LAW.  BUT AN
EXAMINATION OF THE AUTHORITIES CONVINCES THAT IN THIS CASE ANY CONTRARY
VIEW IS UNTENABLE.  SINCE THE JUDGMENT IN THIS CASE WOULD OR SHOULD
HAVE BEEN CERTIFIED PRIOR TO THE AMENDMENT OF 1939, AND SINCE THE
CREDITOR HAS NOT SOUGHT TO INVOKE THE AMENDMENT OF 1936 WHICH GIVES HIM
A CONTROL OVER THE RESTORATION OF APPELLANT'S LICENSE AND ITS CONTINUED
FORCE DURING THE THREE YEAR SUSPENSION PERIOD, WE THINK THE COURT WAS
RIGHT IN ABSTAINING FROM DECIDING WHETHER THE AMENDMENTS ARE ANNULLED
BY SEC. 17 OF THE BANKRUPTCY ACT. 

THE DECREE IS AFFIRMED. 

FN1  CONSOLIDATED LAWS, C. 71. 

FN2  11 U.S.C. SEC. 35. 

FN3  34 F.SUPP.  532. 

FN4  SEE SEC. 94-C. 

FN5  NEW YORK LAWS, 1936, C. 448. 

FN6  NEW YORK LAWS, 1939, C. 618. 

FN7  SEE ALSO MUNZ V. HARNETT, 6 F.SUPP.  158. 

FN8  E.G., PEOPLE V. MENSCHING, 187 N.Y. 8, 23, 79 N.E. 884; MARKLAND
V. SCULLY, 203 N.Y. 158, 96 N.E. 427; PEOPLE V. KLINCK PACKING CO., 214
N.Y. 121, 108 N.E. 278; PEOPLE V. KNAPP, 230 N.Y. 48, 63, 129 N.E.
202. 

FN9  SEE LAWS 1930, C. 398; LAWS 1931, C. 669; LAWS 1934, C. 438;
LAWS 1936, C. 293; LAWS 1936, C. 771; LAWS 1937, C. 114; LAWS 1937, C.
463; LAWS 1939, C. 618. 

MR. JUSTICE DOUGLAS, DISSENTING: 

UNDER THE STATUTE IN QUESTION, IT BECOMES THE DUTY OF THE
COMMISSIONER OF MOTOR VEHICLES TO SUSPEND THE OPERATOR'S LICENSE OF ONE
AGAINST WHOM THE UNSATISFIED JUDGMENT HAS BEEN RENDERED (MATTER OF
JONES V. HARNETT, 247 APP. DIV. 7, 286 N.Y.S. 220; AFF'D 271 N.Y. 626,
3 N.E.2D 455), "UPON RECEIVING A CERTIFIED COPY" OF SUCH FINAL JUDGMENT
FROM THE COURT.  MCKINNEY'S CONS.  L. BK. 62-A, SEC. 94-B.  THE STATUTE
FURTHER PROVIDES THAT "IT SHALL BE THE DUTY OF THE CLERK OF THE COURT,
OR OF THE COURT, WHERE IT HAS NO CLERK, IN WHICH ANY SUCH JUDGMENT IS
RENDERED, TO FORWARD IMMEDIATELY, UPON WRITTEN DEMAND OF THE JUDGMENT
CREDITOR OR HIS ATTORNEY ...  TO SUCH COMMISSIONER A CERTIFIED COPY OF
SUCH JUDGMENT OR A TRANSCRIPT THEREOF."  ID. 

IN THIS CASE THE JUDGMENT CREDITOR INVOKED THE POWER WHICH THE NEW
YORK LEGISLATURE PLACED IN HIS HANDS.  AT THE REQUEST OF HIS ATTORNEY,
THE CLERK OF THE COURT FORWARDED A TRANSCRIPT OF THE JUDGMENT TO THE
COMMISSIONER, WHO THEREUPON ISSUED THE ORDER OF SUSPENSION. 

THE POWER THUS GRANTED THE JUDGMENT CREDITOR CONTRAVENES SEC. 17 OF
THE BANKRUPTCY ACT.  JUDGMENTS ON CLAIMS OF THE KIND INVOLVED HERE  FN1
ARE PROVABLE (LEWIS V. ROBERTS, 267 U.S. 467) AND DO NOT FALL WITHIN
ANY OF THE CATEGORIES OF DEBTS EXCEPTED FROM DISCHARGE BY SEC. 17. 
SINCE THEY ARE DISCHARGEABLE, A STATE CANNOT SUPPLY A DEVICE FOR THEIR
COLLECTION WHICH SURVIVES A DISCHARGE IN BANKRUPTCY.  THE BANKRUPTCY
POWER IS "UNRESTRICTED AND PARAMOUNT"; THE STATES "MAY NOT PASS OR
ENFORCE LAWS TO INTERFERE WITH OR COMPLEMENT THE BANKRUPTCY ACT OR TO
PROVIDE ADDITIONAL OR AUXILIARY REGULATIONS."  INTERNATIONAL SHOE CO.
V. PINKUS, 278 U.S. 261, 265.  THE POWER WHICH NEW YORK HAS PLACED IN
THE HANDS OF THIS JUDGMENT CREDITOR IS SUCH AN INTERFERENCE, THOUGH THE
DISCHARGE IN BANKRUPTCY BE DEEMED TO DESTROY ONLY THE REMEDY (ZAVELO V.
REEVES, 227 U.S. 625) NOT THE DEBT. 

UNDER THE NEW YORK SCHEME A CREDITOR WHOSE CLAIM HAS BEEN DISCHARGED
STILL HOLDS A CLUB OVER HIS DEBTOR'S HEAD.  THE STATE HAS GIVEN HIM A
REMEDY WHICH SURVIVES BANKRUPTCY.  IF THE BANKRUPT REFUSES TO PAY HIS
DISCHARGED DEBT, THE CREDITOR WILL SEE TO IT THAT HIS DRIVER'S LICENSE
IS SUSPENDED.  IF, HOWEVER, THE BANKRUPT WILL PAY UP, THE CREDITOR WILL
REFRAIN. 

THE PRACTICAL PRESSURES OF THIS COLLECTION DEVICE ARE APPARENT. 
WHERE RETENTION OF THE OPERATOR'S LICENSE IS ESSENTIAL TO LIVELIHOOD,
AS HERE ALLEGED, THE BANKRUPT IS AT THE CREDITOR'S MERCY.  BANKRUPTCY
IS NOT THEN THE SANCTUARY FOR HAPLESS DEBTORS WHICH CONGRESS INTENDED. 
THE BANKRUPT, INSTEAD OF RECEIVING BY VIRTUE OF HIS DISCHARGE "A NEW
OPPORTUNITY IN LIFE AND A CLEAR FIELD FOR FUTURE EFFORT, UNHAMPERED BY
THE PRESSURE AND DISCOURAGEMENT OF PREEXISTING DEBT" (LOCAL LOAN CO. V.
HUNT, 292 U.S. 234, 244) FINDS HIMSELF STILL ENTANGLED WITH A FORMER
CREDITOR. 

IN PRACTICAL EFFECT THE BANKRUPT MAY BE IN AS BAD, OR EVEN WORSE, A
POSITION THAN IF THE STATE HAD MADE IT POSSIBLE FOR A CREDITOR TO
ATTACH HIS FUTURE WAGES.  SUCH A DEVICE WOULD CLEARLY CONTRAVENE THE
BANKRUPTCY ACT.  LOCAL LOAN CO. V. HUNT, SUPRA.  THE PRESENT ONE
LIKEWISE RUNS AFOUL OF THE ACT. 

BUT IT IS SAID THAT IF THIS PROVISION OF THE STATUTE FALLS OUT, THE
OLD ONE FALLS IN; AND UNDER THE OLD ONE IT WAS THE DUTY OF THE CLERK TO
CERTIFY THE UNSATISFIED JUDGMENT TO THE COMMISSIONER.  THE DIFFICULTY
WITH THAT VIEW IS THAT THIS IS NOT THAT CASE.  THIS BANKRUPT'S LICENSE
WAS SUSPENDED AS A RESULT OF LEGAL COMPULSION BY THE CREDITOR.  WHETHER
IT WOULD HAVE BEEN SUSPENDED HAD THE COMMISSIONER BEEN ADVISED THAT THE
AMENDMENT GIVING THE CREDITOR THAT POWER CONTRAVENED THE BANKRUPTCY ACT
IS WHOLLY CONJECTURAL.  THE QUESTION OF WHETHER A PROVISION OF A STATE
STATUTE SURVIVES AN INVALID AMENDMENT IS A QUESTION OF STATE LAW.  SEE
OKLAHOMA V. WELLS, FARGO & CO., 223 U.S. 298.  WE DO NOT KNOW WHAT THE
RULING OF THE NEW YORK COURTS WOULD BE UNDER THIS STATUTE.  NOR DO WE
KNOW WHETHER AS A MATTER OF ADMINISTRATIVE POLICY THE CLERK AND THE
COMMISSIONER WOULD HAVE PROCEEDED ON THE BASIS OF THE OLD STATUTE OR
WOULD HAVE AWAITED LEGISLATIVE CLARIFICATION.  BUT, SINCE WE DO KNOW
THAT THE BANKRUPT WAS DEPRIVED OF HIS LICENSE BY REASON OF A STATUTE
WHICH CONFLICTS WITH THE BANKRUPTCY ACT, WE SHOULD STRIKE DOWN THE
STATUTORY PROVISION WHICH IN FACT WAS INVOKED. 

THE CONSTITUTIONAL OBJECTION TO THIS STATUTE, HOWEVER, PERSISTS EVEN
THOUGH WE ASSUME THAT THE BANKRUPT'S LICENSE WOULD HAVE BEEN SUSPENDED
WITHOUT THE CREDITOR'S INITIATIVE.  THE ACT ALSO PROVIDES THAT "IF THE
JUDGMENT CREDITOR CONSENTS IN WRITING THAT THE JUDGMENT DEBTOR BE
ALLOWED LICENSE AND REGISTRATION, THE SAME MAY BE ALLOWED FOR SIX
MONTHS FROM THE DATE OF SUCH CONSENT BY THE COMMISSIONER AND
THEREAFTER.  ..."  I DO NOT THINK WE CAN PASS OVER THAT PROVISION ON
THE THEORY THAT THE POWER OF THE CREDITOR TO LIFT THE SUSPENSION DOES
NOT APPEAR TO HAVE BEEN INVOKED IN THIS CASE AND THAT IF THE CREDITOR
ATTEMPTS TO EXERCISE SUCH POWER THE COMMISSIONER WILL HAVE TO PASS ON
THE CONSTITUTIONAL ISSUE.  MEANWHILE, THE PROVISION IN QUESTION WILL
GIVE TO THE CREDITOR ENORMOUS LEVERAGE.  HIS BARGAINING POSITION WILL
BE GREATLY FORTIFIED.  THE BANKRUPT IS AT HIS MERCY WHERE THE MEANS OF
LIVELIHOOD ARE AT STAKE.  IF THE BANKRUPT AGREES TO A SETTLEMENT, MAKES
ARRANGEMENTS FOR INSTALMENT PAYMENTS, OR THE LIKE, THE CREDITOR WILL
SEE TO IT THAT THE LICENSE IS RESTORED.  IF THE BANKRUPT RESTS ON HIS
RIGHTS, THE CREDITOR WILL SHOW NO MERCY.  IN THE INTERIM, THERE IS NO
WAY BY WHICH THE BANKRUPT CAN RID HIMSELF OF THAT PRESSURE, UNLESS HE
MAKES PEACE WITH THE CREDITOR; HE CANNOT FORCE THE CONSTITUTIONAL ISSUE
IN ANY WAY OTHER THAN THE PRESENT SUIT.  IF THE CREDITOR AGREES TO LIFT
THE SUSPENSION, THE BANKRUPT WOULD BE THE LAST TO OBJECT.  IN ANY
EVENT, THE PROVISION BY THAT TIME WOULD HAVE SPENT MUCH OF ITS FORCE. 
IN SHORT, THIS POWER WHICH NEW YORK HAS GIVEN THE CREDITOR IS A
POWERFUL COLLECTION DEVICE WHICH SHOULD NOT BE ALLOWED TO SURVIVE
BANKRUPTCY. 

I AGREE THAT WE SHOULD NOT MEET A CONSTITUTIONAL ISSUE UNLESS IT IS
UNAVOIDABLE.  BUT THAT ISSUE CANNOT BE ESCAPED HERE, UNLESS WE ARE TO
OVERLOOK THE REALITIES OF COLLECTION METHODS. 

FN1  THE APPEARANCE OF JUDGMENTS, ARISING OUT OF AUTOMOBILE
ACCIDENTS, AMONG INDIVIDUAL BANKRUPTS' SCHEDULES OF LIABILITIES HAS
BEEN COMMON.  CAUSES OF BUSINESS FAILURES AND BANKRUPTCIES OF
INDIVIDUALS IN NEW JERSEY IN 1929-30, U.S. DEPT. OF COMMERCE, DON. 
COMM.  SERIES NO. 54, PP. 25-26(1931); CAUSES OF COMMERCIAL
BANKRUPTCIES, ID., NO. 69, PP. 14-16(1932); CAUSES OF BANKRUPTCIES
AMONG CONSUMERS, ID., NO. 82, PP. 14-15(1933). 

MR. JUSTICE BLACK, MR. JUSTICE BYRNES AND MR. JUSTICE JACKSON JOIN IN
THIS DISSENT. 
..END :









BALTIMORE & OHIO R. CO. V. KEPNER, 314 U.S. 44 


NO. 20.  REARGUED OCTOBER 20, 1941.  - DECIDED NOVEMBER 10, 1941.  - 137
OHIO ST. 409 - 30 N.E.2D 982, AFFIRMED. 


1.  UNDER SEC. 6 OF THE FEDERAL EMPLOYERS LIABILITY ACT, AS AMENDED,
THE INJURED EMPLOYEE HAS THE FEDERAL PRIVILEGE OF BRINGING HIS ACTION
IN ANY DISTRICT IN WHICH THE RAILROAD IS DOING BUSINESS, THOUGH THE
DISTRICT CHOSEN BE FAR FROM THE DISTRICT IN WHICH HE RESIDES, OR IN
WHICH THE CAUSE OF ACTION AROSE, AND IN ANOTHER STATE.  P. 52. 

2.  A STATE COURT MAY NOT VALIDLY EXERCISE ITS EQUITABLE JURISDICTION
TO ENJOIN A RESIDENT OF THE STATE FROM PROSECUTING A CAUSE OF ACTION
ARISING UNDER THE FEDERAL EMPLOYERS LIABILITY ACT IN A FEDERAL COURT OF
ANOTHER STATE WHERE THE ACT GAVE VENUE, ON THE GROUND THAT THE
PROSECUTION IN THAT DISTRICT IS INEQUITABLE, VEXATIOUS AND HARASSING TO
THE CARRIER.  P. 53. 

BALTIMORE & OHIO RAILROAD CO. V. KEPNER. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

CERTIORARI, 312 U.S. 671, TO REVIEW A DECREE AFFIRMING THE DISMISSAL
ON DEMURRER OF A BILL BY THE RAILROAD COMPANY TO ENJOIN KEPNER FROM
FURTHER PROSECUTION OF A SUIT IN THE FEDERAL COURT FOR THE EASTERN
DISTRICT OF NEW YORK SEEKING RECOVERY OF DAMAGES UNDER THE FEDERAL
EMPLOYERS LIABILITY ACT FOR INJURIES RESULTING FROM AN ACCIDENT IN
OHIO.  THE JUDGMENT WAS AFFIRMED HERE BY AN EQUALLY DIVIDED COURT, 313
U.S. 542; SUBSEQUENTLY, A PETITION FOR REHEARING WAS GRANTED, THE
JUDGMENT WAS VACATED, AND THE CASE WAS RESTORED TO THE DOCKET FOR
REARGUMENT, 313 U.S. 597. 

COURTS OF EQUITY HAVE INHERENT POWER TO RESTRAIN THE PROSECUTION OF
VEXATIOUS AND HARASSING LITIGATION, AND IT IS THE LAW OF OHIO THAT ITS
CITIZENS ARE SUBJECT TO THE EXERCISE OF SUCH POWER BY ITS COURTS. 
POMEROY'S EQUITY JURISPRUDENCE, 3RD ED., VOL. 4, SEC. 1360; VOL. 6,
SEC. 670; SNOOK V. SNETZER, 25 OHIO ST. 516; NEW YORK, C. & ST. L.R.
CO. V. MATZINGER, 136 OHIO ST. 271; COLE V. CUNNINGHAM, 133 U.S. 107;
DEHON V. FOSTER, 4 ALLEN 545(MASS.); STEELMAN V. ALL CONTINENT CORP.,
301 U.S. 278, 291; BOSTON & M.R. CO. V. WHITEHEAD, 29 N.E.2D 916, AND
CASES CITED. 

THE FEDERAL EMPLOYERS' LIABILITY ACT DOES NOT FORBID, EITHER
EXPRESSLY OR BY IMPLICATION, THIS EXERCISE OF POWER BY THE COURTS, NOR
DOES IT SO COMPLETELY COVER THE FIELD AS TO PRECLUDE THE APPLICATION OF
STATE LAW.  DOUGLAS V. N.Y., N.H. & H.R. CO., 279 U.S. 377; MAURER V.
HAMILTON, 309 U.S. 598; REID V. COLORADO, 187 U.S. 137, 148; FEDERAL
TRADE COMMISSION V. BUNTE BROS., 312 U.S. 349; UNITED STATES V. DARBY,
312 U.S. 100; HINES V. DAVIDOWITZ, 312 U.S. 52; KELLY V. WASHINGTON,
302 U.S. 1; MICHIGAN CENTRAL R. CO. V. MIX, 278 U.S. 492. 

THE HISTORY OF THE AMENDMENT TO SEC. 6 OF THE FEDERAL EMPLOYERS'
LIABILITY ACT DEMONSTRATES THAT CONGRESS DID NOT INTEND TO BAR THIS
EQUITABLE POWER, AND THAT THE EXERCISE OF SUCH POWER WOULD BE IN
HARMONY WITH THE PURPOSE OF THE ACT.  PALMER V. WEBSTER & ATLAS BANK,
312 U.S. 156; THORNTON'S FEDERAL EMPLOYERS' LIABILITY ACT, 3RD ED.,
APPENDIX B, PP. 576, 580; CONG. REC., VOL. 45, PT. 4, P. 4040. 

THE RESTRAINT OF A PARTY TO A SUIT IS NOT TANTAMOUNT TO THE RESTRAINT
OF THE COURT ITSELF.  STEELMAN V. ALL CONTINENT CORP., 301 U.S. 278,
290; BRYANT V. ATLANTIC COAST LINE R. CO., 92 F.2D 569. 

THE FACTS IN THE PRESENT CASE ARE SUFFICIENT TO INVOKE THE EQUITABLE
POWERS OF A COURT.  BALTIMORE & OHIO R. CO. V. KEPNER, 137 OHIO ST.
409; DAVIS V. FARMERS' COOPERATIVE CO., 262 U.S. 312; MICHIGAN CENTRAL
R. CO. V. MIX, 278 U.S. 492; DENVER & R.G.W.R. CO. V. TERTE, 284 U.S.
284; NEW YORK, C. & ST. L.R. CO. V. MATZINGER, 136 OHIO ST. 271; ERIE
R. CO. V. TOMPKINS, 304 U.S. 64. 

THE WEIGHT OF AUTHORITY SUPPORTS THE RIGHT TO INJUNCTION.  REED'S
ADMINISTRATRIX V. ILLINOIS CENTRAL R. CO., 182 KY. 455; EX PARTE
CRANDALL, 53 F.2D 969, CERT. DEN., 285 U.S. 540; BRYANT V. ATLANTIC
COAST LINE R. CO., 92 F.2D 569. 

WHETHER THE CONDUCT OF AN OHIO CITIZEN IS EQUITABLE IS A QUESTION OF
STATE LAW, WHICH AN OHIO COURT HAVING JURISDICTION OF THE CITIZEN IS TO
DETERMINE IN ACCORDANCE WITH THAT LAW, UNLESS CONGRESS WITHIN ITS
DELEGATED POWERS HAS MADE AN ENACTMENT INCONSISTENT WITH THE OHIO LAW. 
MILLIKEN V. MEYER, 311 U.S. 457. 

THE FEDERAL EMPLOYERS' LIABILITY ACT DREW TO ITSELF THE RIGHT OF
ACTION FOR INJURIES OR DEATH OF AN EMPLOYEE WITHIN ITS PURVIEW.  THE
ACTION MUST BE BROUGHT AS PRESCRIBED IN THE ACT.  MOORE V. C. & O. RY.
CO., 291 U.S. 205; BREISCH V. CENTRAL RAILROAD, 312 U.S. 484; SEABOARD
AIR LINE RY. CO. V. KENNEY, 240 U.S. 489. 

THE RIGHT OF RESPONDENT TO SUE IN THE FEDERAL DISTRICT COURT IN THE
DISTRICT WHERE PETITIONER IS DOING BUSINESS IS CLEAR AND UNQUALIFIED,
AND COMPELS SUCH COURT TO ASSUME JURISDICTION.  MOORE V. C. & O. RY.
CO., SUPRA; SOUTHERN RY. V. COCHRAN, 56 F.2D 1019; RADER V. B. & O.R.
CO., 108 F.2D 980; CHICAGO, M. & ST. P. RY. CO. V. SCHENDEL, 292 F.
326; ATCHISON, T. & S.F. RY. CO. V. SOWERS, 213 U.S. 55. 

NOTHING IN EITHER THE LANGUAGE OR THE HISTORY OF SEC. 6 OF THE
FEDERAL EMPLOYERS' LIABILITY ACT SUSTAINS THE CONTENTION THAT THE RIGHT
TO INVOKE A FEDERAL COURT'S JURISDICTION THEREIN PROVIDED IS SUBJECT TO
THE EQUITY POWERS OF A STATE COURT. 

THE LANGUAGE IS CLEAR, AND ITS OBVIOUS MEANING CONTROLS.  RAILROAD
COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S. 563, 588, 589; KUEHNER
V. IRVING TRUST CO., 299 U.S. 445, 449. 

THE OHIO COURT HAD NO JURISDICTION OF THE SUBJECT OF THE ACTION AFTER
DISTRICT COURT JURISDICTION ATTACHED. 

THE GRANT OF CONCURRENT JURISDICTION GIVES PLAINTIFF A CHOICE OF THE
COURT.  AS AN INCIDENT HE IS ENTITLED TO WHATEVER REMEDIAL ADVANTAGE
INHERES IN THE PARTICULAR FORUM.  MINNEAPOLIS & ST. LOUIS R. CO. V.
BOMBOLIS, 241 U.S. 211; MISSOURI V. TAYLOR, 266 U.S. 200. 

A STATE COURT IS WITHOUT POWER TO ARREST JURISDICTION OF THE FEDERAL
COURT.  SHARON V. TERRY, 36 F. 337, 355; WALLACE V. MCCONNELL, 13 PET.
138, 151; TERRAL V. BURKE CONSTRUCTION CO., 257 U.S. 532; PENNSYLVANIA
CASUALTY CO. V. PENNSYLVANIA, 294 U.S. 189, 197; RIGGS V. JOHNSON
COUNTY, 6 WALL.  166. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

WE HAVE FOR DECISION IN THIS CASE THE QUESTION WHETHER A STATE COURT
MAY VALIDLY EXERCISE ITS EQUITABLE JURISDICTION TO ENJOIN A RESIDENT OF
THE STATE FROM PROSECUTING A CAUSE OF ACTION ARISING UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT IN A FEDERAL COURT OF ANOTHER STATE WHERE THAT
ACT GAVE VENUE, ON THE GROUND THAT THE PROSECUTION IN THE FEDERAL COURT
IS INEQUITABLE, VEXATIOUS AND HARASSING TO THE CARRIER. 

AS THE ISSUE WAS DEEMED A FEDERAL QUESTION OF SUBSTANCE,  FN1
UNDECIDED BY THIS COURT, AND CONCERNING WHICH THERE WAS LACK OF
UNIFORMITY IN THE STATE COURT DECISIONS,  FN2  CERTIORARI WAS GRANTED,
312 U.S. 671, THE DECREE BELOW AFFIRMED HERE BY AN EQUALLY DIVIDED
COURT, 313 U.S. 542, AND THE PETITION FOR REHEARING ALLOWED, 313 U.S.
597. 

THIS PROCEEDING ORIGINALLY WAS BROUGHT BY THE PETITIONER, AN
INTERSTATE RAILROAD, IN THE COURT OF COMMON PLEAS OF HAMILTON COUNTY,
OHIO, AGAINST THE RESPONDENT KEPNER, AN INJURED RESIDENT EMPLOYEE, TO
ENJOIN HIS CONTINUED PROSECUTION OF A SUIT IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT FOR HIS INJURIES.  THE ACCIDENT, ACCORDING TO
THE PETITION, OCCURRED IN BUTLER COUNTY, OHIO, A COUNTY ADJACENT TO
THAT OF RESPONDENT'S RESIDENCE, THROUGH BOTH OF WHICH COUNTIES
PETITIONER'S RAILROAD RAN.  THE PETITION FURTHER SHOWED THAT SUITABLE
COURTS, STATE AND FEDERAL, WERE CONSTANTLY OPEN AND THAT PETITIONER AND
THE WITNESSES WERE AVAILABLE FOR PROCESS THEREIN.  IT WAS STATED THE
FEDERAL COURT CHOSEN WAS SEVEN HUNDRED MILES FROM THE RESIDENCE OF THE
RESPONDENT AND NUMEROUS WITNESSES; THAT TO PRESENT THE CASE PROPERLY
REQUIRED THE PERSONAL ATTENDANCE OF APPROXIMATELY TWENTY-FIVE LOCALLY
AVAILABLE WITNESSES - THE CREW, INSPECTORS AND THE MEDICAL ATTENDANTS -
AT A COST ESTIMATED TO EXCEED THE COST OF THE PRESENTATION OF THE CASE
AT A CONVENIENT POINT BY $4,000, WITH NO RESULTING BENEFIT TO THE
INJURED EMPLOYEE.  PETITIONER ASSERTED THESE FACTS ESTABLISHED THAT THE
CONTINUED PROSECUTION OF THE FEDERAL COURT ACTION WOULD BE AN UNDUE
BURDEN ON INTERSTATE COMMERCE AND AN UNREASONABLE, IMPROPER AND
INEQUITABLE BURDEN UPON PETITIONER ITSELF. 

THE DEFENDANT RAILROAD WAS DOING BUSINESS IN THE NEW YORK DISTRICT
WHERE THE DAMAGE SUIT WAS FILED, AS APPEARS FROM A COPY OF THE
COMPLAINT IN THE FEDERAL CASE MADE A PART OF THE PETITION. 

RESPONDENT DEMURRED FOR FAILURE TO STATE A CAUSE OF ACTION AND LACK
OF JURISDICTION OF THE SUBJECT OF THE ACTION.  THE TRIAL COURT
SUSTAINED THE DEMURRER AND DISMISSED THE ACTION, BY AN ORDER WHICH WAS
SUSTAINED BY THE COURT OF APPEALS AND, ON REHEARING, BY THE SUPREME
COURT OF OHIO.  FN3  THE BASIS FOR THE DECISION BELOW WAS THAT THE
RESPONDENT EMPLOYEE WAS PRIVILEGED TO ENJOY, WITHOUT INTERFERENCE FROM
A STATE COURT, THE VENUE ALLOWED BY THE FEDERAL EMPLOYERS' LIABILITY
ACT.  FN4 

THE STATUTORY PROVISION IN REGARD TO VENUE IS IN SEC. 6, WHICH SO FAR
AS PERTINENT READS AS FOLLOWS: 

"UNDER THIS CHAPTER AN ACTION MAY 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."  (APR. 5,
1910, C. 143, SEC. 1, 36 STAT. 291, AS AMENDED MARCH 3, 1911, C. 231,
SEC. 291, 36 STAT. 1167; 45 U.S.C. SEC. 56. 

WHEN THE SECOND EMPLOYERS' LIABILITY ACT WAS ENACTED, VENUE OF
ACTIONS UNDER IT WAS LEFT TO THE GENERAL VENUE STATUTE, 35 STAT. 65,
WHICH FIXED THE VENUE OF SUITS IN THE UNITED STATES COURTS, BASED IN
WHOLE OR IN PART UPON THE ACT, IN DISTRICTS OF WHICH THE DEFENDANT WAS
AN INHABITANT.  FN5  LITIGATION PROMPTLY DISCLOSED WHAT CONGRESS
CONSIDERED DEFICIENCIES IN SUCH A LIMITATION OF THE RIGHT OF RAILROAD
EMPLOYEES TO BRING PERSONAL INJURY ACTIONS,  FN6  WITH THE RESULT THAT
THE PRESENT LANGUAGE WAS ADDED.  FN7 

THE REASON FOR THE ADDITION WAS SAID TO BE THE INJUSTICE TO AN
INJURED EMPLOYEE OF COMPELLING HIM TO GO TO THE POSSIBLY FAR DISTANT
PLACE OF HABITATION OF THE DEFENDANT CARRIER, WITH CONSEQUENT INCREASED
EXPENSE FOR THE TRANSPORTATION AND MAINTENANCE OF WITNESSES, LAWYERS
AND PARTIES, AWAY FROM THEIR HOMES.  FN8  THE LEGISLATIVE HISTORY
THROWS LITTLE LIGHT ON THE REASON FOR THE CHOICE OF THE THREE STANDARDS
FOR DETERMINING VENUE:  THE RESIDENCE OF THE CARRIER, THE PLACE WHERE
IT IS DOING BUSINESS, OR THE PLACE WHERE THE CAUSE OF ACTION AROSE.  AT
ONE TIME, THE AMENDATORY BILL FIXED VENUE AS "THE DISTRICT OF THE
RESIDENCE OF EITHER THE PLAINTIFF OR THE DEFENDANT, OR IN WHICH THE
CAUSE OF ACTION AROSE, OR IN WHICH THE DEFENDANT SHALL BE FOUND AT THE
TIME OF COMMENCING SUCH ACTION."  FN9  FEARS WERE EXPRESSED THAT SO
WIDE A CHOICE MIGHT RESULT IN INJUSTICE TO THE CARRIER, P. 2257.  NO
DOUBT THIS LANGUAGE WAS ACTUALLY CONSIDERED BY THE SENATE JUDICIARY
COMMITTEE, AS WELL AS THE LANGUAGE OF THE GENERAL VENUE STATUTE FOR
WHICH THE COMMITTEE WAS PROVIDING AN EXCEPTION.  SPECIFIC ATTENTION WAS
CALLED IN THE SENATE REPORT TO THE MACON GROCERY CASE, INTERPRETING THE
GENERAL VENUE STATUTE.  THAT STATUTE PLACED VENUE IN THE RESIDENCE OF
EITHER PARTY, WHERE THE JURISDICTION WAS FOUNDED ON DIVERSITY OF
CITIZENSHIP ALONE.  THE LANGUAGE FINALLY ADOPTED MUST HAVE BEEN
DELIBERATELY CHOSEN TO ENABLE THE PLAINTIFF, IN THE WORDS OF SENATOR
BORAH, WHO SUBMITTED THE REPORT ON THE BILL, "TO FIND THE CORPORATION
AT ANY POINT OR PLACE OR STATE WHERE IT IS ACTUALLY CARRYING ON
BUSINESS, AND THERE LODGE HIS ACTION, IF HE CHOOSES TO DO SO."  FN10 

WHEN PETITIONER SOUGHT AN INJUNCTION IN THE OHIO COURT AGAINST THE
FURTHER PROSECUTION OF THE FEDERAL COURT ACTION IN NEW YORK, THE
PETITION ALLEGED THAT PROSECUTION OF THE NEW YORK ACTION WOULD ENTAIL
"AN UNDUE BURDEN" ON INTERSTATE COMMERCE.  NO OBJECTION TO THE DECREE
BELOW, UPON THAT EXPLICIT GROUND, APPEARS IN THE PETITION FOR
CERTIORARI, EITHER IN THE SPECIFICATION OF ERRORS OR REASONS FOR
GRANTING THE WRIT.  IN PETITIONER'S BRIEF ON THE MERITS, IT IS POINTED
OUT THAT THIS COURT HELD IN DENVER & R.G.W.R. CO. V. TERTE, 284 U.S.
284, THAT THE DISADVANTAGES OF LITIGATION FAR FROM THE SCENE OF THE
ACCIDENT ARE NOT SUBSTANTIAL ENOUGH TO JUSTIFY A STATE COURT IN
FORBIDDING THE CONTINUATION OF THE LITIGATION IN A DISTRICT WHERE THE
LINES OF THE CARRIER RUN.  THIS ACCORDS WITH HOFFMAN V. MISSOURI EX
REL. FORAKER, 274 U.S. 21, WHERE IT WAS SAID THE CARRIER MUST "SUBMIT,
IF THERE IS JURISDICTION, TO THE REQUIREMENTS OF ORDERLY, EFFECTIVE
ADMINISTRATION OF JUSTICE, ALTHOUGH THEREBY INTERSTATE COMMERCE IS
INCIDENTALLY BURDENED."  FN11 SINCE THE CARRIER'S EXHIBIT OF
RESPONDENT'S NEW YORK PETITION SHOWS AN ALLEGATION THAT IT IS DOING
BUSINESS IN NEW YORK, WE ASSUME THAT BUSINESS TO BE SUCH AS IS
CONTEMPLATED BY THE VENUE PROVISIONS OF SEC. 6.  THERE IS THEREFORE NO
OCCASION TO CONSIDER FURTHER THE SUGGESTION THAT THE SUIT IN NEW YORK
CREATES AN INADMISSIBLE BURDEN UPON INTERSTATE COMMERCE. 

THE REAL CONTENTION OF PETITIONER IS THAT, DESPITE THE ADMITTED
VENUE, RESPONDENT IS ACTING IN A VEXATIOUS AND INEQUITABLE MANNER IN
MAINTAINING THE FEDERAL COURT SUIT IN A DISTANT JURISDICTION WHEN A
CONVENIENT AND SUITABLE FORUM IS AT RESPONDENT'S DOORSTEP.  UNDER SUCH
CIRCUMSTANCES, PETITIONER ASSERTS POWER, ABSTRACTLY SPEAKING, IN THE
OHIO COURT TO PREVENT A RESIDENT UNDER ITS JURISDICTION FROM DOING
INEQUITY.  SUCH POWER DOES EXIST.  FN12  IN THE MATZINGER CASE, THE
SUPREME COURT OF OHIO EXERCISED THIS POWER TO PREVENT THE CONTINUATION
OF A PERSONAL INJURY SUIT IN ILLINOIS, BY A RESIDENT UNDER ITS
JURISDICTION, ON AN OHIO CAUSE OF ACTION.  SUCH POWER HAS OCCASIONALLY
BEEN EXERCISED BY ONE STATE OVER ITS CITIZENS, SEEKING TO ENFORCE IN
OTHER STATES REMEDIES UNDER THE EMPLOYERS' LIABILITY ACT, AGAINST
DEFENDANTS LOCALLY AVAILABLE FOR THE LITIGATION.  FN13  AT TIMES THE
INJUNCTION HAS BEEN REFUSED.  FN14    WE READ THE OPINION OF THE
SUPREME COURT OF OHIO TO EXPRESS THE VIEW THAT, IF IT WERE NOT FOR SEC.
6 OF THE EMPLOYERS' LIABILITY ACT, THE REQUESTED INJUNCTION WOULD BE
GRANTED, ON THE UNDISPUTED FACTS OF THE PETITION.  SECTION 6
ESTABLISHES VENUE FOR AN ACTION IN THE FEDERAL COURTS.  AS SUCH VENUE
IS A PRIVILEGE CREATED BY FEDERAL STATUTE  FN15  AND CLAIMED BY
RESPONDENT, THE SUPREME COURT OF OHIO FELT CONSTRAINED BY THE SUPREMACY
CLAUSE TO TREAT SEC. 6 AS DECISIVE OF THE ISSUE.  IT IS CLEAR THAT THE
ALLOWANCE OR DENIAL OF THIS FEDERAL PRIVILEGE IS A MATTER OF FEDERAL
LAW, NOT A MATTER OF STATE LAW UNDER ERIE RAILROAD CO. V. TOMPKINS, 304
U.S. 64, 72.  FN16 ITS CORRECT DECISION DEPENDS UPON A CONSTRUCTION OF
A FEDERAL ACT.  FN17  CONSEQUENTLY, THE ACTION OF A STATE COURT MUST BE
IN ACCORD WITH THE FEDERAL STATUTE AND THE FEDERAL RULE AS TO ITS
APPLICATION, RATHER THAN STATE STATUTE, RULE OR POLICY.  FN18 

PETITIONER PRESSES UPON US THE ARGUMENT THAT THE ACTION OF CONGRESS
GAVE AN INJURED RAILWAY EMPLOYEE THE PRIVILEGE OF EXTENDED VENUE,
SUBJECT TO THE USUAL POWERS OF THE STATE TO ENJOIN WHAT IN THE JUDGMENT
OF THE STATE COURTS WOULD BE CONSIDERED AN IMPROPER USE OF THAT
PRIVILEGE.  THIS RESULTS, SAYS PETITIONER, BECAUSE THE ACT DOES NOT IN
TERMS EXCLUDE THIS STATE POWER.  FN19  AS COURTS OF EQUITY ADMITTEDLY
POSSESSED THIS POWER BEFORE THE ENACTMENT OF SEC. 6, THE ARGUMENT
CONTINUES, IT IS NOT TO BE LIGHTLY INFERRED THAT THE VENUE PRIVILEGE
WAS IN DISREGARD OF THIS POLICY.  BUT THE FEDERAL COURTS HAVE FELT THEY
COULD NOT INTERFERE WITH SUITS IN FAR FEDERAL DISTRICTS WHERE THE
INEQUITY ALLEGED WAS BASED ONLY ON INCONVENIENCE.  FN20  THERE IS NO
OCCASION TO DISTINGUISH BETWEEN THE POWER AND THE PROPRIETY OF ITS
EXERCISE IN THIS INSTANCE, SINCE THE LIMITS OF THE TWO ARE HERE CO
EXTENSIVE.  THE PRIVILEGE WAS GRANTED BECAUSE THE GENERAL VENUE
PROVISIONS WORKED INJUSTICES TO EMPLOYEES.  IT IS OBVIOUS THAT NO STATE
STATUTE COULD VARY THE VENUE; FN21  AND, WE THINK, EQUALLY TRUE THAT NO
STATE COURT MAY INTERFERE WITH THE PRIVILEGE, FOR THE BENEFIT OF THE
CARRIER OR THE NATIONAL TRANSPORTATION SYSTEM, ON THE GROUND OF
INEQUITY BASED ON COST, INCONVENIENCE OR HARASSMENT.  WHEN THE SECTION
WAS ENACTED IT FILLED THE ENTIRE FIELD OF VENUE IN FEDERAL COURTS. 
FN22  A PRIVILEGE OF VENUE, GRANTED BY THE LEGISLATIVE BODY WHICH
CREATED THIS RIGHT OF ACTION, CANNOT BE FRUSTRATED FOR REASONS OF
CONVENIENCE OR EXPENSE.  IF IT IS DEEMED UNJUST, THE REMEDY IS
LEGISLATIVE - A COURSE FOLLOWED IN SECURING THE AMENDMENT OF APRIL 5,
1910, FOR THE BENEFIT OF EMPLOYEES.  THIS COURT HELD IN HOFFMAN V.
MISSOURI EX REL. FORAKER, 274 U.S. 21, THAT THE BURDEN ON INTERSTATE
COMMERCE WOULD BE DISREGARDED WHERE THE CARRIER HAD LINES IN THE
DISTANT STATE.  THE IMPORTANCE OF UNHAMPERED COMMERCE IS AT LEAST AS
GREAT AS THAT OF A CARRIER'S FREEDOM FROM HARASSING INCIDENTS OF
LITIGATION.  WHATEVER BURDEN THERE IS HERE UPON THE RAILROAD, BECAUSE
OF INCONVENIENCE OR COST, DOES NOT OUTWEIGH THE PLAIN GRANT OF
PRIVILEGE FOR SUIT IN NEW YORK.  FN23  AFFIRMED. 

FN1  JUDICIAL CODE, SEC. 237B. 

FN2  MCCONNELL V. THOMSON, 213 IND. 16, 8 N.E.2D 986, 11 N.E.2D 183;
REED'S ADMRX.  V. ILLINOIS CENTRAL R. CO., 182 KY. 455, 206 S.W. 794. 

FN3  137 OHIO ST. 206, 28 N.E.2D 586 AND 137 OHIO ST. 409, 30 N.E.2D
982. 

FN4  137 OHIO ST. 409, 416, 30 N.E.2D 982. 

FN5  FIRST SECTION OF THE ACT OF MARCH 3, 1875, 18 STAT. 470, AS
AMENDED BY THE ACT OF MARCH 3, 1887, 24 STAT. 552, AND ACT OF AUGUST
13, 1888, 25 STAT. 433. 

FN6  COUND V. ATCHISON, T. & S.F. RY. CO., 173 F. 527; MACON GROCERY
CO. V. ATLANTIC COAST LINE R. CO., 215 U.S. 501, 506.  SENATE REPORT
NO. 432, 61ST CONG., 2D SESS., P. 4. 

FN7  APRIL 5, 1910, C. 143, 36 STAT. 291. 

FN8  SENATE REPORT NO. 432, 61ST CONG., 2D SESS., P. 4. 

FN9  CONG. REC., 61ST CONG., 2D SESS., VOL. 45, PT. 3, P. 2253. 

FN10  ID., PT. 4, P. 4034. 

FN11  CF. INTERNATIONAL MILLING CO. V. COLUMBIA CO., 292 U.S. 511,
517-21; ST. LOUIS, B. & M. RY. CO. V. TAYLOR, 266 U.S. 200, 207.  DAVIS
V. FARMERS CO-OPERATIVE CO., 262 U.S. 312, IS LIMITED TO ITS PARTICULAR
FACTS, 292 U.S. 511 AT 517; MICHIGAN CENTRAL R. CO. V. MIX, 278 U.S.
492, AND ATCHISON, T. & S.F. RY. CO. V. WELLS, 265 U.S. 101, TURN ON
THE ABSENCE OR INCONSEQUENTIAL CHARACTER OF BUSINESS DONE WITHIN THE
STATES WHERE THE RAILROADS WERE SUED.  THE MIX CASE IS DIFFERENTIATED
FROM THE FORAKER AND TAYLOR CASES BECAUSE THE CARRIER'S LINES OR
CONTRACTS DID NOT RUN OR CALL FOR PERFORMANCE IN THE TERRITORY OVER
WHICH THE COURT WHERE THE OBJECTIONABLE ACTION WAS FILED HAD
JURISDICTION. 

FN12  NEW YORK, C. & ST. L.R. CO. V. MATZINGER, 136 OHIO ST. 271, 25
N.E.2D 349; COLE V. CUNNINGHAM, 133 U.S. 107; SIMON V. SOUTHERN RY.
CO., 236 U.S. 115, 123. 

FN13  KERN V. CLEVELAND, C., C. & ST. L. RY. CO., 204 IND. 595, 185
N.E. 446; REED'S ADMRX.  V. ILLINOIS CENTRAL R. CO., 182 KY. 455, 206
S.W. 794; EX PARTE CRANDALL, 53 F.2D 969. 

FN14  MISSOURI-KANSAS-TEXAS R. CO. V. BALL, 126 KAN. 745, 271 P. 313;
MOBILE & OHIO R. CO. V. PARRENT, 260 ILL. APP. 284; LANCASTER V. DUNN,
153 LA. 15, 95 SO. 385. 

FN15  NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165. 

FN16  A CONTRARY VIEW AS TO INJUNCTIONS AGAINST ACTIONS IN STATE
COURTS HAS BEEN EXPRESSED.  ROBERTS:  FEDERAL LIABILITIES OF CARRIERS
(2D ED.)  VOL.  2, SEC. 962. 

FN17  COHENS V. VIRGINIA, 6 WHEAT, 264, 379. 

FN18  CALHOUN GOLD MINING CO. V. AJAX GOLD MINING CO., 182 U.S. 499,
505; TULLOCK V. MULVANE, 184 U.S. 497, 505, 512-13; CINCINNATI, N.O. &
T.P. RY. CO. V. RANKIN, 241 U.S. 319, 326-27; CHESAPEAKE & OHIO RY. CO.
V. MARTIN, 283 U.S. 209, 213; CHESAPEAKE & OHIO RY. CO. V. KUHN, 284
U.S. 44, 47; FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229, 231; CF.
ROBERTS, OP. CIT., SUPRA. 

FN19  FEDERAL TRADE COMMISSION V. BUNTE BROS., 312 U.S. 349; UNITED
STATES V. DARBY, 312 U.S. 100; HINES V. DAVIDOWITZ, 312 U.S. 52; KELLY
V. WASHINGTON, 302 U.S. 1. 

FN20  CHESAPEAKE & OHIO RY. CO. V. VIGOR, 90 F.2D 7; BALTIMORE & OHIO
R. CO. V. CLEM, 36 F.SUPP.  703, OVERRULING BALTIMORE & OHIO R. CO. V.
BOLE, 31 F.SUPP.  221. 

FN21  IT WAS HELD IN CHICAGO, M. & ST. P. RY. CO. V. SCHENDEL, 292 F.
326, 327-32, THAT BY VIRTUE OF THE SUPREMACY CLAUSE A STATE STATUTE WAS
UNCONSTITUTIONAL WHICH FORBADE THE DOING OF ANY ACT TO FURTHER
LITIGATION IN ANOTHER STATE, BY TESTIMONY OR OTHERWISE, ON A PERSONAL
INJURY CLAIM ARISING LOCALLY. 

FN22  CF. NEW YORK CENTRAL R. CO. V. WINFIELD, 244 U.S. 147, 151. 

FN23  WE DO NOT THINK PETITIONER'S ATTEMPTED DISTINCTION BETWEEN A
PROHIBITED INJUNCTION DIRECTED AT THE COURT AND A PERMITTED ONE
DIRECTED AT THE PARTIES IS VALID.  AN ORDER TO THE PARTIES FORBIDDING
PROSECUTION WOULD DESTROY VENUE EFFECTUALLY.  OKLAHOMA PACKING CO. V.
GAS CO., 309 U.S. 4, 9.  CF. HILL V. MARTIN, 296 U.S. 393, 403. 
STEELMAN V. ALL CONTINENT CORP., 301 U.S. 278, RELIED UPON BY
PETITIONER, WOULD BE PERTINENT ONLY IF THERE WERE OCCASION FOR THE
STATE COURT TO CONTROL FEDERAL VENUE.  IT WOULD THEN BE EXERCISED
AGAINST THE PARTIES. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

DISAGREEMENT WITH THE VIEWS OF THE MAJORITY ON THE CONSTRUCTION OF A
VENUE PROVISION DOES NOT ORDINARILY CALL FOR EXPRESSION.  BUT INASMUCH
AS THE DECISION IN THIS CASE UNJUSTIFIABLY LIMITS LONG-SETTLED POWERS
OF THE STATE COURTS AND THEREBY BRINGS INTO DISEQUILIBRIUM THE
RELATIONSHIP OF FEDERAL AND STATE COURTS, I THINK IT PROPER TO EXPRESS
MY VIEWS. 

THE DECISION OF THE COURT SEEMS TO BE EPITOMIZED IN THIS SENTENCE:
"A PRIVILEGE OF VENUE, GRANTED BY THE LEGISLATIVE BODY WHICH CREATED
THIS RIGHT OF ACTION, CANNOT BE FRUSTRATED FOR REASONS OF CONVENIENCE
OR EXPENSE."  AS A GENERAL PROPOSITION, THE SUGGESTION THAT A PRIVILEGE
OF VENUE GRANTED BY THE LEGISLATIVE BODY WHICH CREATES THE RIGHT OF
ACTION "CANNOT BE FRUSTRATED FOR REASONS OF CONVENIENCE OR EXPENSE"
WOULD BE AS NOVEL AS IT IS UNTENABLE.  TO GIVE UNIQUE SCOPE TO THIS
VENUE PROVISION DIFFERENT FROM THE SIGNIFICANCE ACCORDED ALL OTHER
PROVISIONS OF VENUE "GRANTED BY THE LEGISLATIVE BODY WHICH CREATED" THE
RIGHT IS NO LESS NOVEL DOCTRINE.  FOR THIS DEPARTURE FROM THE EFFECT
CUSTOMARILY GIVEN TO VENUE PROVISIONS, NO WARRANT IS AVOUCHED IN THE
SPECIFIC PROVISIONS OF THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
GENERAL PROVISIONS OF LEGISLATION DEFINING THE RELATIONSHIP BETWEEN
FEDERAL AND STATE COURTS, THE PRINCIPLES APPLIED IN THE DECISIONS OF
THIS COURT, OR SETTLED DOCTRINES OF EQUITY JURISDICTION.  NONE IS
AVOUCHED BECAUSE NONE IS AVAILABLE. 

THE OPINION DOES NOT DENY THE HISTORIC POWER OF COURTS OF EQUITY TO
PREVENT A MISUSE OF LITIGATION BY ENJOINING RESORT TO VEXATIOUS AND
OPPRESSIVE FOREIGN SUITS.  SEE E.G., COLE V. CUNNINGHAM, 133 U.S. 107,
118-20; PERE MARQUETTE RY. CO. V. SLUTZ, 268 MICH. 388, 256 N.W. 458;
MASON V. HARLOW, 84 KAN. 277, 114 P. 218; WILSER V. WILSER, 132 MINN.
167, 156 N.W. 271; NORTHERN PACIFIC RY. CO. V. RICHEY & GILBERT CO.,
132 WASH. 526, 232 P. 355; O'HAIRE V. BURNS, 45 COLO. 432, 101 P. 755;
MILLER V. GITTINGS, 85 MD. 601, 37 A. 372.  NOR DOES IT QUESTION THE
FAMILIAR DOCTRINE OF FORUM NON CONVENIENS, UNDER WHICH A COURT HAVING
STATUTORY JURISDICTION MAY DECLINE ITS FACILITIES TO A SUIT THAT IN
JUSTICE SHOULD BE TRIED ELSEWHERE.  SEE CANADA MALTING CO. V. PATERSON
CO., 285 U.S. 413, 422-23; MASSACHUSETTS V. MISSOURI, 308 U.S. 1, 19;
ROGERS V. GUARANTY TRUST CO., 288 U.S. 123, 130-31.  THESE
MANIFESTATIONS OF A CIVILIZED JUDICIAL SYSTEM ARE FIRMLY IMBEDDED IN
OUR LAW.  SEE FOSTER, PLACE OF TRIAL IN CIVIL ACTIONS, 43 HARV. L. REV.
1217; BLAIR, THE DOCTRINE OF FORUM NON CONVENIENS IN ANGLO-AMERICAN
LAW, 29 COL. L. REV. 1.  NOR DOES THE DECISION GIVE NEW CURRENCY TO THE
DISCREDITED NOTION THAT THERE IS A GENERAL LACK OF POWER IN THE STATE
COURTS TO ENJOIN PROCEEDINGS IN FEDERAL COURTS.  CF. PRINCESS LIDA V.
THOMPSON, 305 U.S. 456, 466; WARREN, FEDERAL AND STATE COURT
INTERFERENCE, 43 HARV. L. REV. 345.  NOTHING IN ARTICLE III OF THE
CONSTITUTION OR IN THE LEGISLATION BY WHICH CONGRESS HAS VESTED
JUDICIAL POWER IN THE FEDERAL COURTS JUSTIFIES SUCH A DOCTRINE. 

AND SO THE BASIS OF THE DECISION OF THE COURT MUST BE FOUND, IF
ANYWHERE, IN THE TERMS OF THE VENUE PROVISION OF THE FEDERAL EMPLOYERS'
LIABILITY ACT.  THE SECTION PROVIDES, SIMPLY, THAT AN ACTION UNDER THE
ACT "MAY 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," THAT THE JURISDICTION OF THE FEDERAL
COURTS SHALL BE "CONCURRENT" WITH THAT OF THE STATE COURTS, AND THAT NO
ACTION BROUGHT IN A STATE COURT OF COMPETENT JURISDICTION SHALL BE
REMOVED TO A FEDERAL COURT.  36 STAT. 291; 45 U.S.C. SEC. 56.  THE
PHRASING OF THE SECTION IS NOT UNIQUE:  IT FOLLOWS THE FAMILIAR PATTERN
GENERALLY EMPLOYED BY CONGRESS IN FRAMING VENUE PROVISIONS.  E.G., 28
U.S.C. SEC. 112(SUITS BASED UPON DIVERSITY OF CITIZENSHIP); 28 U.S.C.
SEC. 53(SUITS BY OR AGAINST CHINA TRADE ACT CORPORATIONS); 28 U.S.C.
SEC. 104(SUITS FOR PENALTIES AND FORFEITURES); 28 U.S.C. SEC. 105(SUITS
FOR RECOVERY OF TAXES); 28 U.S.C. SEC. 41(26)(B)(INTERPLEADER).  THE
DECISION CANNOT REST, THEREFORE, UPON ANY PECULIARITIES OF THE LANGUAGE
OF THE PROVISION. 

NOR CAN JUSTIFICATION FOR THE COURT'S CONCLUSION BE FOUND IN THE
LEGISLATIVE HISTORY OF THE SECTION OR THE CLEARLY EXPRESSED REASONS OF
POLICY UNDERLYING ITS ENACTMENT.  AS THE HOUSE AND SENATE COMMITTEE
REPORTS SHOW, H. REPT. NO. 513, PP. 6-7, S. REPT. NO. 432, PP. 3-4,
61ST CONG., 2D SESS., CONGRESS WAS AWARE OF THE HARDSHIP BY WHICH,
UNDER THE ORIGINAL EMPLOYERS' LIABILITY ACT OF APRIL 22, 1908, 35 STAT.
65, THE PLAINTIFF COULD BRING HIS ACTION ONLY AT THE RAILROAD'S
"RESIDENCE."  COUND V. ATCHISON, T. & S.F. RY. CO., 173 F. 527.  THE
AMENDMENT OF 1910 GREATLY ENLARGED THE RANGE OF A PLAINTIFF'S
CONVENIENCE IN BRINGING SUIT.  IT IS NOT DISPUTED THAT THE AMENDMENT
WAS INTENDED TO OPEN TO A PLAINTIFF COURTS FROM WHICH HE PREVIOUSLY WAS
BARRED.  BUT THAT IS NOT THE QUESTION BEFORE US.  THE PROBLEM IS
WHETHER THE ACT WAS INTENDED TO GIVE A PLAINTIFF AN ABSOLUTE AND
UNQUALIFIED RIGHT TO COMPEL TRIAL OF HIS ACTION IN ANY OF THE SPECIFIED
PLACES HE CHOOSES, THEREBY NOT ONLY DEPRIVING STATE COURTS OF THEIR OLD
POWER TO PROTECT AGAINST UNJUSTLY OPPRESSIVE FOREIGN SUITS, BUT ALSO
FORBIDDING FEDERAL COURTS TO DECLINE JURISDICTION "IN THE INTEREST OF
JUSTICE" ON FAMILIAR GROUNDS OF FORUM NON CONVENIENS.  SEE CANADA
MALTING CO. V. PATERSON CO., 285 U.S. 413, 422-23.  NOTHING IN THE
HISTORY OF THE 1910 AMENDMENT INDICATES THAT ITS FRAMERS CONTEMPLATED
ANY SUCH VAST TRANSFORMATION IN THE ESTABLISHED RELATIONSHIP BETWEEN
FEDERAL AND STATE COURTS AND IN THE DUTY OF THE FEDERAL COURTS TO
DECLINE JURISDICTION "IN THE INTEREST OF JUSTICE."  ON THE CONTRARY,
THE EXPRESSED CONSIDERATIONS OF POLICY UNDERLYING THE AMENDMENT WERE
FUNDAMENTALLY THE SAME AS THOSE UNDERLYING THE EQUITABLE POWER TO
RESTRAIN OPPRESSIVE SUITS AND THE RECIPROCAL DOCTRINE OF FORUM NON
CONVENIENS:  IT DOES NOT COMPORT WITH EQUITY AND JUSTICE TO ALLOW A
SUIT TO BE LITIGATED IN A FORUM WHERE, ON THE BALANCE, UNNECESSARY
HARDSHIP AND INCONVENIENCE WOULD BE CAST UPON ONE PARTY WITHOUT ANY
COMPENSATINGLY FAIR CONVENIENCE TO THE OTHER PARTY, BUT WHERE, ON THE
CONTRARY, THE SUIT MIGHT MORE CONVENIENTLY BE LITIGATED IN ANOTHER
FORUM AVAILABLE EQUALLY TO BOTH PARTIES. 

THIS DOCTRINE OF JUSTICE APPLIES WITH ESPECIALLY COMPELLING FORCE
WHERE THE CONVENIENCES TO BE BALANCED ARE NOT MERELY CONVENIENCES OF
CONFLICTING PRIVATE INTERESTS BUT WHERE THERE IS ADDED THE CONTROLLING
FACTOR OF PUBLIC INTEREST.  THE SO-CALLED "CONVENIENCE" OF A RAILROAD
CONCERNS THE IMPORTANT NATIONAL FUNCTION OF WHICH THE RAILROADS ARE THE
AGENCY.  AS IN OTHER PHASES OF FEDERAL RAILROAD REGULATION, THE
INTERESTS OF CARRIERS, EMPLOYEES, AND THE PUBLIC MUST BE BALANCED. 
BECAUSE OF THE "DIRECT CONCERN OF THE PUBLIC" IN MAINTAINING AN
ECONOMIC AND EFFICIENT RAILROAD SYSTEM, A UNANIMOUS COURT, SPEAKING
THROUGH MR. JUSTICE BRANDEIS, HELD THAT A CARRIER MAY NOT BE SUED BY A
PLAINTIFF WHERE, UNDER THE CIRCUMSTANCES OF THE PARTICULAR FACTS, SUCH
SUIT WOULD IMPOSE AN UNFAIR BURDEN UPON RAILROADS AND THEREBY UPON THE
NATION.  DAVIS V. FARMERS CO-OPERATIVE CO., 262 U.S. 312.  THE
DECLARATION BY CONGRESS THAT A COURT HAS JURISDICTION AND VENUE IS NOT
A COMMAND THAT IT MUST EXERCISE ITS AUTHORITY IN SUCH A CASE TO THE
UNNECESSARY INJURY OF A DEFENDANT AND THE PUBLIC.  THIS DOCTRINE HAS
BEEN CONSISTENTLY FOLLOWED IN A SERIES OF UNANIMOUS DECISIONS. 
ATCHISON, T. & S.F. RY. CO. V. WELLS, 265 U.S. 101; MICHIGAN CENTRAL R.
CO. V. MIX, 278 U.S. 492; HOFFMAN V. FORAKER, 274 U.S. 21; DENVER &
R.G.W.R. CO. V. TERTE, 284 U.S. 284.  FN1 OF COURSE, CONGRESS, IF IT
CHOSE, COULD SUBJECT INTERSTATE CARRIERS TO THE JURISDICTION OF THE
STATE COURTS, EVEN IN THE SITUATIONS IN WHICH THIS COURT FOUND THAT
ASSUMPTION OF JURISDICTION WOULD BE AN INJUSTICE TO THE PUBLIC.  BUT
CONGRESS HAS NOT EXPRESSED A DIFFERENT VIEW OF THE GOVERNING PUBLIC
INTEREST - AND THESE CASES STAND AS UNCHALLENGED AUTHORITIES THAT,
NOTWITHSTANDING THE PROVISION OF THE FEDERAL EMPLOYERS' LIABILITY ACT
CONFERRING UNQUALIFIED "CONCURRENT JURISDICTION" UPON THE STATE COURTS,
A PLAINTIFF MAY IN SOME CIRCUMSTANCES BE BARRED FROM BRINGING HIS SUIT
IN ONE OF THE PLACES SPECIFIED BY THE ACT.  IN THIS RESPECT, AT LEAST,
A PLAINTIFF'S "PRIVILEGE OF VENUE, GRANTED BY THE LEGISLATIVE BODY
WHICH CREATED THIS RIGHT OF ACTION," CAN "BE FRUSTRATED FOR REASONS OF
CONVENIENCE OR EXPENSE." 

THE OPINION OF THE COURT ATTACHES IMPORTANCE TO A PHRASE TAKEN FROM
SENATOR BORAH'S REMARKS ON THE FLOOR OF THE SENATE IN SUBMITTING THE
BILL TO AMEND THE ACT:  "THE BILL ENABLES THE PLAINTIFF TO FIND THE
CORPORATION AT ANY POINT OR PLACE OR STATE WHERE IT IS ACTUALLY
CARRYING ON BUSINESS, AND THERE LODGE HIS ACTION, IF HE CHOOSES TO DO
SO."  45 CONG. REC. 4034.  THE CONTEXT OF THIS STATEMENT IS SET OUT IN
THE FOOTNOTE.  FN2 

THE INTRINSIC DIFFICULTIES OF LANGUAGE AND THE EMERGENCE, AFTER
ENACTMENT, OF SITUATIONS NOT ANTICIPATED BY EVEN THE MOST GIFTED
LEGISLATIVE IMAGINATION REVEAL THE DOUBTS AND AMBIGUITIES IN STATUTES
THAT SO OFTEN COMPEL JUDICIAL CONSTRUCTION.  TO ILLUMINE THESE DARK
PLACES IN LEGISLATIVE COMPOSITION ALL THE SOURCES OF LIGHT MUST BE
DRAWN UPON.  BUT THE VARIOUS AIDS TO CONSTRUCTION ARE GUIDES OF
EXPERIENCE, NOT TECHNICAL RULES OF LAW.  SEE BOSTON SAND CO. V. UNITED
STATES, 278 U.S. 41, 48.  ONE OF THE SOURCES WHICH MAY BE USED FOR
EXTRACTING MEANING FROM LEGISLATION IS THE DELIBERATIVE COMMENTARY OF
THE LEGISLATORS IMMEDIATELY IN CHARGE OF A MEASURE.  CONTEMPORARY
ANSWERS BY THOSE AUTHORIZED TO GIVE ANSWERS TO QUESTIONS RAISED ABOUT
THE MEANING OF PENDING LEGISLATION OBVIOUSLY GO A LONG WAY TO
ELUCIDATING DOUBTFUL LEGISLATIVE PURPOSE.  BUT THIS RULE OF GOOD SENSE
DOES NOT MEAN THAT EVERY LOOSE PHRASE, EVEN OF THE PROPONENT OF A
MEASURE, IS TO BE GIVEN THE AUTHORITY OF AN ENCYCLICAL.  THE LANGUAGE
OF A CHAIRMAN OF A COMMITTEE, LIKE THE LANGUAGE OF ALL PEOPLE, IS
MERELY A SYMBOL OF THOUGHT.  A SPEAKER'S CASUAL, ISOLATED GENERAL
OBSERVATION SHOULD NOT BE TORTURED INTO AN EXPRESSION OF DISREGARD FOR
AN ESTABLISHED, FAR-REACHING POLICY OF THE LAW.  ESPECIALLY IN THE CASE
OF SENATOR BORAH, SUCH IMPUTATION SHOULD NOT BE MADE.  AS IS WELL
KNOWN, HE EYED MOST JEALOUSLY THE ABSORPTION OF STATE AUTHORITY BY
EXTENSION OF FEDERAL POWER.  IT WOULD HAVE BEEN EASY TO VEST THE
ENFORCEMENT OF THE FEDERAL EMPLOYERS' LIABILITY ACT ENTIRELY IN THE
FEDERAL COURTS.  INSTEAD, NOT ONLY WAS CONCURRENT JURISDICTION GIVEN TO
THE STATE COURTS IN THE ENFORCEMENT OF THIS FEDERAL RIGHT, BUT REMOVAL
OF A STATE ACTION TO THE FEDERAL COURTS WAS PROHIBITED.  INSTEAD OF
BEING DEEMED HOSTILE TO THE PURPOSES OF THE FEDERAL EMPLOYERS'
LIABILITY ACT AND NOT TO BE ENTRUSTED WITH ITS ADMINISTRATION, THE
STATE COURTS WERE ACCEPTED AS THE MOST ACTIVE AGENCIES FOR ITS
ENFORCEMENT.  AND YET, ALTHOUGH NOWHERE IN THE COURSE OF THE WHOLE
LEGISLATIVE HISTORY OF THE ACT IN QUESTION - THE HEARINGS, THE REPORTS
IN BOTH HOUSES, THE DEBATES ON THE FLOOR - IS THERE THE SLIGHTEST
INTIMATION THAT THE PROBLEM BEFORE US ENTERED THE MIND OF ANY
LEGISLATOR, WE ARE ASKED TO ATTRIBUTE TO SENATOR BORAH THE UPROOTING OF
A DOCTRINE WHICH IS AN OLD AND FRUITFUL PART OF THE FABRIC OF THE LAW
OF THE STATES AS WELL AS THE LAW OF THE LAND, BY A GENERAL OBSERVATION
WHICH HAS NO RELATION TO THIS DOCTRINE AND TO WHICH RESPECTFUL MEANING
CAN BE GIVEN WITHOUT SUCH DISTORTION. 

TO READ THE VENUE PROVISION OF THE ACT AS DO THE MAJORITY OF THE
COURT, IS TO TRANSLATE THE PERMISSION GIVEN A PLAINTIFF TO ENTER COURTS
PREVIOUSLY CLOSED TO HIM INTO A WITHDRAWAL FROM THE STATE COURTS OF
POWER HISTORICALLY EXERCISED BY THEM, AND INTO AN ABSOLUTE DIRECTION TO
THE SPECIFIED FEDERAL AND STATE COURTS TO TAKE JURISDICTION.  THE
IMPLICATIONS OF SUCH A CONSTRUCTION EXTEND FAR BEYOND THE SITUATION WE
NOW HAVE HERE, OF AN ATTEMPT BY A STATE COURT TO ENJOIN AN ACTION
BROUGHT IN A FEDERAL COURT SITTING IN ANOTHER STATE.  IT SEEMS TO BE
GENERALLY HELD THAT THE GRANT TO THE STATE COURTS OF JURISDICTION
CONCURRENT WITH THE FEDERAL COURTS DOES NOT DEPRIVE ONE STATE COURT OF
THE POWER TO ENJOIN AN OPPRESSIVE SUIT UNDER THE ACT IN A FOREIGN STATE
COURT.  FN3  MOREOVER, THIS COURT HAS EXPRESSLY HELD THAT THE VENUE
PROVISION OF THE EMPLOYERS' LIABILITY ACT DOES NOT PREVENT A STATE
COURT FROM DECLINING JURISDICTION AS A FORUM NON CONVENIENS.  DOUGLAS
V. NEW YORK, N.H. & H.R. CO., 279 U.S. 377.  TO BE SURE, UNDER THE
GUISE OF APPLYING LOCAL DOCTRINES OF EQUITY JURISDICTION, A STATE COURT
CANNOT DEFEAT THE PROPER ASSERTION OF A FEDERAL RIGHT.  RESORT TO THIS
COURT MAY ALWAYS BE HAD TO LAY BARE SUCH AN UNWARRANTED FRUSTRATION. 
AMERICAN RAILWAY EXPRESS CO. V. LEVEE, 263 U.S. 19; DAVIS V. WECHSLER,
263 U.S. 22.  BUT SUCH SUPERVISORY POWER BY THIS COURT OVER THE
DETERMINATION OF FEDERAL RIGHTS BY STATE COURTS DOES NOT IMPLY THE
DENIAL OF POWER IN THE STATE COURTS TO MAKE SUCH DETERMINATIONS IN THE
FIRST INSTANCE.  SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 56-57;
CLAFLIN V. HOUSEMAN, 93 U.S. 130, 136-37; ROBB V. CONNOLLY, 111 U.S.
624, 637; CF. WARREN, FEDERAL CRIMINAL LAWS AND STATE COURTS, 38 HARV.
L. REV. 545, 596-97.  THE LONG HISTORY OF LEAVING THE EFFECTIVE
ENFORCEMENT OF FEDERAL RIGHTS TO STATE COURTS HAS PROCEEDED ON
RECOGNITION OF THE POWER OF THE STATE COURTS TO EXERCISE IN THE FIRST
INSTANCE THEIR SETTLED DOCTRINES OF LAW AND EQUITY.  THE OPINION OF THE
COURT IGNORES THESE SETTLED PRINCIPLES.  IN AN AREA DEMANDING THE
UTMOST JUDICIAL CIRCUMSPECTION, DISLOCATING UNCERTAINTY IS THEREBY
INTRODUCED. 

IF THE PRIVILEGE AFFORDED A PLAINTIFF TO BRING SUIT UNDER THE
EMPLOYERS' LIABILITY ACT IN ONE PLACE RATHER THAN IN ANOTHER IS TO BE
REGARDED AS AN ABSOLUTE COMMAND TO THE FEDERAL COURTS TO TAKE
JURISDICTION REGARDLESS OF ANY CONSIDERATIONS OF JUSTICE AND FAIRNESS,
WHY IS NOT THE SAME EFFECT TO BE GIVEN THE COMPARABLE GENERAL VENUE
PROVISIONS OF SEC. 51 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 112? 
NOTHING IN THE LANGUAGE OR THE HISTORY OF THE VENUE PROVISION OF THE
ACT DIFFERENTIATES IT FROM THE NUMEROUS OTHER VENUE PROVISIONS OF THE
JUDICIAL CODE.  IS THE SETTLED DOCTRINE OF FORUM NON CONVENIENS TO BE
DEEMED IMPLIEDLY REPEALED BY EVERY SUCH VENUE PROVISION?  SURELY, IT IS
MUCH MORE CONSONANT WITH REASON AND RIGHT TO READ VENUE PROVISIONS IN
THE FAMILIAR CONTEXT OF ESTABLISHED LAW RATHER THAN TO IMPUTE TO
CONGRESS AN UNCONSIDERED, PROFOUND ALTERATION IN THE RELATIONSHIP
BETWEEN THE FEDERAL AND THE STATE COURTS AND IN THE RELATIONS OF THE
FEDERAL COURTS INTER SE.  CF. GAY V. RUFF, 292 U.S. 25. 

FN1  INTERNATIONAL MILLING CO. V. COLUMBIA CO., 292 U.S. 511, DID NOT
RESTRICT BUT EXPRESSLY RECOGNIZED THE DOCTRINE OF THE DAVIS CASE.  IN
FINDING THE SCOPE OF THE DAVIS DOCTRINE IN THE CIRCUMSTANCES WHICH GAVE
RISE TO IT, THE OPINION IN THE MILLING CO. CASE ONLY FOLLOWED
TRADITIONAL TECHNIQUE IN THE USE OF PRECEDENTS.  IT MADE PRECISELY THE
SAME DIFFERENTIATION THAT MR. JUSTICE BRANDEIS, WHO ARTICULATED THE
DOCTRINE IN THE DAVIS CASE, MADE IN APPLYING THE PRINCIPLE OF THE CASE
TO SUBSEQUENT SITUATIONS.  SEE ST. LOUIS, B. & M. RY. CO. V. TAYLOR,
266 U.S. 200, AND HOFFMAN V. FORAKER, 274 U.S. 21.  THE DOCTRINE ITSELF
STANDS UNCHALLENGED.  THE PRESENT DECISION DOES NOT CHALLENGE IT. 

FN2  "MR. PRESIDENT, I WISH TO DISCUSS VERY BRIEFLY THE BILL.  THE
BILL AS IT IS NOW PENDING PROVIDES FOR THREE AMENDMENTS TO THE
EMPLOYERS' LIABILITY LAW WHICH IS NOW UPON THE STATUTE BOOKS.  THE
FIRST HAS REFERENCE TO THE VENUE  ...  THE OBJECTION WHICH HAS BEEN
MADE TO THE EXISTING LAW, AND THIS OBJECTION ARISES BY REASON OF THE
DECISION OF SOME OF THE COURTS, IS THAT THE PLAINTIFF MAY SOMETIMES BE
COMPELLED TO GO A GREAT DISTANCE IN ORDER TO HAVE HIS CAUSE OF ACTION
AGAINST THE DEFENDANT BY REASON OF THE FACT THAT NOW THE ACTION MUST BE
BROUGHT IN CERTAIN INSTANCES IN THE DISTRICT IN WHICH THE DEFENDANT IS
AN INHABITANT.  IN OTHER WORDS, THE CORPORATION BEING AN INHABITANT OF
THE STATE WHICH CREATES IT, IT MIGHT FOLLOW THAT THE PLAINTIFF WOULD
HAVE TO TRAVEL A LONG DISTANCE IN ORDER, UNDER CERTAIN CONDITIONS, TO
BRING HIS ACTION AGAINST THE DEFENDANT AND COME WITHIN THE TERMS OF THE
LAW.  SO, IF THIS BILL SHOULD BE PASSED THE LAW WILL BE REMEDIED IN
THAT RESPECT, IN ENABLING THE PLAINTIFF TO BRING HIS ACTION WHERE THE
CAUSE OF ACTION AROSE OR WHERE THE DEFENDANT MAY BE DOING BUSINESS. 
THE BILL ENABLES THE PLAINTIFF TO FIND THE CORPORATION AT ANY POINT OR
PLACE OR STATE WHERE IT IS ACTUALLY CARRYING ON BUSINESS, AND THERE
LODGE HIS ACTION, IF HE CHOOSES TO DO SO."  45 CONG. REC. 4034. 

FN3  SEE REED'S ADMRX.  V. ILLINOIS CENTRAL R. CO., 182 KY. 455, 206
S.W. 794; CHICAGO, M. & ST. P. RY. CO. V. MCGINLEY, 175 WIS. 565, 185
N.W. 218; STATE EX REL. NEW YORK, C. & ST. L.R. CO. V. NORTONI, 331 MO.
764, 55 S.W.2D 272; KERN V. CLEVELAND, C., C. & ST. L.R. CO., 204 IND.
595, 185 N.E. 446, WITH WHICH COMPARE MCCONNELL V. THOMSON, 213 IND.
16, 8 N.E.2D 986, 11 N.E.2D 183; CF. EX PARTE CRANDALL, 53 F.2D 969. 
THE LOWER FEDERAL COURTS HAVE USUALLY DECLINED TO ENJOIN SUITS UNDER
THE ACT BROUGHT IN OTHER FEDERAL COURTS.  SEE RADER V. BALTIMORE & OHIO
R. CO., 108 F.2D 980, 985-86; CHESAPEAKE & OHIO RY. CO. V. VIGOR, 90
F.2D 7; SOUTHERN RY. CO. V. COCHRAN, 56 F.2D 1019, 1020. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS JOIN IN THIS OPINION. 
..END :








INDIANAPOLIS V. CHASE NATIONAL BANK, 314 U.S. 63 


NOS. 10 AND 11.  ARGUED FEBRUARY 6, 7, 1941.  REARGUED OCTOBER 15, 16,
1941.  - DECIDED NOVEMBER 10, 1941.  - 113 F.2D 217, REVERSED. 


1.  TO SUSTAIN FEDERAL JURISDICTION ON THE GROUND OF DIVERSITY OF
CITIZENSHIP, THERE MUST EXIST AN ACTUAL, SUBSTANTIAL CONTROVERSY, ON
ONE SIDE OF WHICH THE PARTIES MUST ALL BE CITIZENS OF STATES DIFFERENT
FROM THOSE OF WHICH THE PARTIES ON THE OTHER SIDE ARE CITIZENS.  P.
69. 

2.  DIVERSITY JURISDICTION CAN NOT BE CONFERRED UPON THE FEDERAL
COURTS BY THE PARTIES' OWN DETERMINATION OF WHO ARE PLAINTIFFS AND WHO
ARE DEFENDANTS; AND IT IS THE DUTY OF THIS COURT, AS WELL AS OF THE
LOWER COURTS, TO LOOK BEYOND THE PLEADINGS AND ARRANGE THE PARTIES
ACCORDING TO THEIR SIDES IN THE DISPUTE.  P. 69. 

3.  WHETHER THERE EXISTS THE NECESSARY COLLISION OF INTERESTS TO
SUSTAIN DIVERSITY JURISDICTION, MUST BE ASCERTAINED FROM THE PRINCIPAL
PURPOSE OF THE SUIT AND THE PRIMARY AND CONTROLLING MATTER IN DISPUTE. 
P. 69. 

4.  UPON THE FACTS OF THIS CASE, WHICH WAS A SUIT BROUGHT, IN A
FEDERAL COURT OF INDIANA, BY A NEW YORK BANK AGAINST TWO INDIANA GAS
COMPANIES AND AN INDIANA CITY, THIS COURT HOLDS THAT THE "PRIMARY AND
CONTROLLING MATTER IN DISPUTE" IS WHETHER A LEASE, WHEREBY ONE OF THE
GAS COMPANIES CONVEYED ALL OF ITS GAS PLANT PROPERTY TO THE OTHER, WAS
BINDING UPON THE CITY, TO WHICH THE PROPERTY HAD BEEN AFTERWARDS
CONVEYED BY THE LESSEE CORPORATION PURSUANT TO ITS FRANCHISE; THAT,
WITH RESPECT TO THAT DISPUTE, ONE OF THE GAS COMPANIES AND THE CITY
("CITIZENS" OF THE SAME STATE) ARE ON OPPOSITE SIDES; AND THAT,
THEREFORE, FEDERAL JURISDICTION, WHICH DEPENDS ON DIVERSITY OF
CITIZENSHIP, IS LACKING.  PP. 70, 74. 

5.  THIS COURT'S EARLIER DENIAL OF CERTIORARI TO REVIEW A JUDGMENT OF
THE CIRCUIT COURT OF APPEALS REVERSING A JUDGMENT OF THE DISTRICT COURT
WHICH DISMISSED THIS SUIT FOR WANT OF JURISDICTION, COULD NOT CONFER ON
THE FEDERAL COURTS A JURISDICTION WHICH CONGRESS HAS DENIED.  P. 75. 

6.  THE POLICY OF THE STATUTE CONFERRING DIVERSITY JURISDICTION UPON
THE DISTRICT COURTS CALLS FOR ITS STRICT CONSTRUCTION.  P. 76. 

INDIANAPOLIS ET AL. V. CHASE NATIONAL BANK, TRUSTEE, ET AL* . 

*TOGETHER WITH NO. 12, CHASE NATIONAL BANK, TRUSTEE, V. CITIZENS GAS
CO. ET AL.; AND NO. 13, CHASE NATIONAL BANK, TRUSTEE, V. INDIANAPOLIS
GAS CO. ET AL., ALSO ON WRITS OF CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 311 U.S. 636, 637, TO REVIEW THE REVERSAL OF A JUDGMENT
WHICH HELD A LEASE INVALID.  A PETITION FOR CERTIORARI TO REVIEW THE
CASE IN AN EARLIER PHASE, 96 F.2D 363, WAS DENIED, 305 U.S. 600. 

THE CIRCUIT COURT OF APPEALS PROPERLY REFUSED TO REALIGN INDIANAPOLIS
GAS WITH CHASE AS A PARTY PLAINTIFF. 

IT IS INCONCEIVABLE THAT A PARTY AGAINST WHOM PLAINTIFF IS ENTITLED
TO RECOVER A JUDGMENT FOR APPROXIMATELY $1,700,000 CAN BE ALIGNED WITH
THE PLAINTIFF UNDER ANY CIRCUMSTANCES. 

THE CITY'S ARGUMENT IS BASED ENTIRELY ON THE FACT THAT THE CITY, AS
SUCCESSOR LESSEE, HAS BEEN HELD PRIMARILY LIABLE AND INDIANAPOLIS GAS
SECONDARILY LIABLE FOR THE AMOUNT OF THE JUDGMENT, AND THAT THE CITY IS
WELL ABLE TO PAY THE JUDGMENT OUT OF THE FUNDS OF THE PUBLIC CHARITABLE
TRUST.  A PARITY OF REASONING WOULD REQUIRE A REALIGNMENT WHENEVER A
CREDITOR SUES A PRINCIPAL AND SURETY ON A DEBT. 

THE SITUATION HERE IS SUBSTANTIALLY THE SAME AS WHEN A MORTGAGOR
SELLS THE MORTGAGED PROPERTY TO A THIRD PERSON, WHO AGREES TO PAY THE
MORTGAGE DEBT.  THE MORTGAGOR BECOMES THE SURETY AND THE GRANTEE OF THE
MORTGAGED PROPERTY BECOMES THE PRINCIPAL DEBTOR.  UNION MUTUAL LIFE
INS. CO. V. HANFORD, 143 U.S. 187; BIRKE V. ABBOTT, 103 IND. 1; TODD V.
OGLEBAY, 158 IND. 595. 

THE RELATIONSHIP OF PRINCIPAL AND SURETY IS SIMILARLY INVOLVED WHERE,
AS HERE, THE MORTGAGOR MERELY LEASES THE PROPERTY TO A THIRD PERSON,
WHO IN TURN AGREES TO PAY THE INTEREST ON THE MORTGAGE AS RENT. 
CENTRAL TRUST CO. V. BERWIND-WHITE COAL CO., 95 F. 391. 

WHEN THERE HAS BEEN AN ASSUMPTION OF THE MORTGAGE OBLIGATIONS, EITHER
BY A VENDEE OR A LESSEE, AND THE MORTGAGEE SUES TO RECOVER THE DEBT, HE
ORDINARILY JOINS AS DEFENDANTS BOTH THE ORIGINAL MORTGAGOR AND THE
VENDEE OR LESSEE WHO HAS ASSUMED THE MORTGAGE OBLIGATIONS.  THE
MORTGAGOR MAY BE VITALLY INTERESTED IN HAVING AN ADJUDICATION THAT HIS
VENDEE OR LESSEE DID ASSUME THE MORTGAGE AND THAT HE, THE MORTGAGOR, IS
MERELY A SURETY ON THE OBLIGATION; BUT THAT DOES NOT REQUIRE A
REALIGNMENT OF THE MORTGAGOR WITH THE MORTGAGEE.  THE MORTGAGEE HAS A
BONA FIDE CLAIM FOR RELIEF AGAINST BOTH DEFENDANTS AND IT IS WHOLLY
IMMATERIAL THAT ONE OF THEM IS LIABLE ONLY AS SURETY. 

THE PLAINTIFF HERE HAS A BONA FIDE CLAIM FOR UNPAID INTEREST AGAINST
INDIANAPOLIS GAS, CITIZENS GAS, AND THE CITY, AND THEY ARE ALL PROPERLY
ALIGNED AS DEFENDANTS, EVEN THOUGH SOME OF THEM MAY BE PRIMARILY AND
OTHERS ONLY SECONDARILY LIABLE. 

THE CITY HAS NOT CITED A SINGLE CASE IN WHICH THE PLAINTIFF HAD EVEN
ONE SUBSTANTIAL CONTROVERSY WITH A DEFENDANT AND SUCH DEFENDANT WAS
REALIGNED WITH THE PLAINTIFF FOR JURISDICTIONAL PURPOSES.  THE FACT
THAT PLAINTIFF AND SUCH DEFENDANT MAY BE IN ACCORD AS TO SOME OF THE
OTHER ISSUES IN THE CASE IS WHOLLY IMMATERIAL.  TO BE SURE, REALIGNMENT
IS REQUIRED WHERE THERE IS NO BONA FIDE PRAYER FOR RELIEF AGAINST A
PARTICULAR DEFENDANT, AS IN CITY OF DAWSON V. COLUMBIA TRUST CO., 197
U.S. 178, BUT THAT IS NOT THE SITUATION IN THE CASE AT BAR. 

SUTTON V. ENGLISH, 246 U.S. 199, SUPPORTS FEDERAL JURISDICTION OF
THIS CASE.  SEE ALSO REPUBLIC NATIONAL BANK & TRUST CO. V.
MASSACHUSETTS BONDING & INS. CO., 68 F.2D 445, 447; DETROIT TILE &
MOSAIC CO. V. MASON CONTRACTORS' ASSN., 48 F.2D 729, 731; FRANZ V.
FRANZ, 15 F.2D 797, 799; FEIDLER V. BARTLESON, 161 F. 30, 35. 

IN EACH OF THOSE CASES THERE WAS AT LEAST ONE CONTROVERSY BETWEEN THE
PLAINTIFF AND THE DEFENDANT SOUGHT TO BE REALIGNED, AND THIS SINGLE
CONTROVERSY PREVENTED SUCH REALIGNMENT, DESPITE THE FACT THAT PLAINTIFF
AND SUCH DEFENDANT WERE IN ACCORD AS TO SOME OF THE OTHER
CONTROVERSIES.  THE RULE OF LAW APPLIED IN THESE CASES AND IN THE CASE
AT BAR ON THE FIRST APPEAL - THAT A DEFENDANT AGAINST WHOM PLAINTIFF
ASKS RELIEF AND WITH WHOM PLAINTIFF HAS DISTINCT CONFLICTS OF INTERESTS
CANNOT BE REALIGNED WITH THE PLAINTIFF IN DETERMINING FEDERAL
JURISDICTION - HAS BEEN UNIVERSALLY RECOGNIZED.  THE FEDERAL COURTS
HAVE CONTINUED TO APPLY THIS RULE SINCE THE DECISION OF THE
JURISDICTIONAL QUESTION IN THIS CASE IN 1938.  SEE REX CO. V.
INTERNATIONAL HARVESTER CO., 107 F.2D 767, 768, CITING SUTTON V.
ENGLISH AND THE FIRST DECISION OF THE COURT OF APPEALS IN THE CASE AT
BAR IN SUPPORT. 

THE CITY'S CONTENTION THAT THE QUESTION AS TO THE VALIDITY OF THE
LEASE IS THE DOMINANT CONTROVERSY IN THIS CASE AND MUST GOVERN THE
QUESTION OF REALIGNMENT, WITHOUT REGARD TO ANY OTHER CONTROVERSIES, IS
BASED ON THE PROPOSITION THAT PLAINTIFF AND INDIANAPOLIS GAS ARE ON THE
SAME SIDE OF THAT CONTROVERSY.  THE FACT IS THAT PLAINTIFF ASKS
PRECISELY THE SAME RELIEF AGAINST INDIANAPOLIS GAS ON THIS ISSUE THAT
IT ASKS AGAINST THE CITY AND CITIZENS GAS, NAMELY, THAT THE LEASE BE
HELD BINDING ON EACH.  THE FALLACY IN THE CITY'S ARGUMENT IS ITS
ASSUMPTION THAT A DEFENDANT CAN DESTROY THE CONTROVERSY UPON WHICH
FEDERAL JURISDICTION DEPENDS BY ADMITTING ITS LIABILITY, OR EVEN BY
CONSENTING TO HAVE ITS LIABILITY ENFORCED.  THE LAW IS WELL SETTLED TO
THE CONTRARY.  RE METROPOLITAN RAILWAY RECEIVERSHIP, 208 U.S. 90. 

THE SUIT WAS BROUGHT BY CHASE AS MORTGAGEE, I.E., TRUSTEE, UNDER A
DEED OF TRUST SECURING AN ISSUE OF BONDS OF INDIANAPOLIS GAS.  CHASE
SOUGHT A DECREE DECLARING THAT THE NINETY-NINE YEAR LEASE BETWEEN
INDIANAPOLIS GAS, LESSOR, AND CITIZENS GAS, LESSEE, WAS BINDING UPON
AND ENFORCEABLE AGAINST THE CITY. 

THE CIRCUIT COURT OF APPEALS CORRECTLY HELD THAT INDIANAPOLIS GAS WAS
AN INDISPENSABLE PARTY.  CHASE NATIONAL BANK V. CITIZENS GAS CO., 96
F.2D 363. 

THE CONTROLLING CONTROVERSY IS WHETHER THE PLEADED LEASE HAS BECOME
ENFORCEABLE AGAINST THE CITY.  NO OTHER CAUSE OF ACTION IS ALLEGED
AGAINST THE CITY EXCEPT CLAIMS FOR DAMAGES WHICH ARE DEPENDENT UPON THE
DETERMINATION OF THE VALIDITY OF THE LEASE. 

THE CITY CONTENDS THAT THE LEASE IS INVALID AND UNENFORCEABLE AGAINST
IT; CHASE MAINTAINS THAT THE LEASE IS VALID AND BINDING AGAINST THE
CITY; INDIANAPOLIS GAS MAINTAINS THAT THE LEASE IS VALID AND BINDING
AGAINST THE CITY.  CHASE AND INDIANAPOLIS GAS THUS HAVE A SIMILAR AND
IDENTICAL INTEREST AGAINST THE CITY ON THE QUESTION OF THE VALIDITY OF
THE LEASE. 

THE CITY HAS BEEN HELD BOUND BY THE LEASE AND REQUIRED TO PAY THE
OBLIGATIONS OF INDIANAPOLIS GAS UNDER THE MORTGAGE.  NO MATTER WHAT THE
FORM OF THE JUDGMENT MAY BE, NO ONE CAN REALISTICALLY SUPPOSE THAT
INDIANAPOLIS GAS HAS BEEN HARMED BY THE ENTRY OF THIS JUDGMENT OR THAT
IT WILL BE REQUIRED TO PAY A SINGLE PENNY AS A RESULT OF IT.  ON THE
CONTRARY, IT WILL HAVE OBTAINED EXACTLY WHAT IT SOUGHT FROM THE
COMMENCEMENT OF THIS LITIGATION:  A DECREE REQUIRING THE CITY TO MAKE
THE PAYMENTS UNDER THE LEASE. 

THE OTHER SUBSIDIARY RELIEF ASKED AGAINST INDIANAPOLIS GAS BY CHASE
HAS EITHER NOT BEEN PROSECUTED BEYOND THE ALLEGATION IN THE COMPLAINT
AND PRAYERS, IS DEPENDENT UPON A DECISION RESPECTING THE VALIDITY OF
THE LEASE, OR IS RELIEF AGAINST WHICH INDIANAPOLIS GAS IS COMPLETELY
INSULATED. 

IF THE INTERESTS OF CHASE AND INDIANAPOLIS GAS WERE NOT IN ACCORD,
INDIANAPOLIS GAS WOULD NOT HAVE OPPOSED REVIEW BY THIS COURT OF A
JUDGMENT AGAINST IT FOR MORE THAN $1,000,000. 

BY ARRANGING THE PARTIES ACCORDING TO THEIR REAL INTEREST IN THE CASE
- VIZ., THE ENFORCEABILITY OF THE 99 YEAR LEASE AGAINST THE CITY - IT
IS CLEAR THAT THE INTERESTS OF INDIANAPOLIS GAS AND OF CHASE ARE
IDENTICAL.  THEY SHOULD BE REALIGNED AS PARTIES PLAINTIFF.  DIVERSITY
OF CITIZENSHIP WOULD THUS BE DESTROYED, AND THE SOLE GROUND OF
JURISDICTION OF THE FEDERAL DISTRICT COURT WOULD BE LOST.  COMPARE CITY
OF DAWSON V. COLUMBIA TRUST CO., 197 U.S. 178, 181; NILES-BEMENT-POND
CO. V. IRON MOULDERS UNION, 254 U.S. 77, 81. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT INSTITUTED BY THE CHASE NATIONAL BANK, A NEW YORK
CORPORATION, IN THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
INDIANA, NAMING AS DEFENDANTS THE INDIANAPOLIS GAS COMPANY, THE
CITIZENS GAS COMPANY OF INDIANAPOLIS (INDIANA CORPORATIONS), AND THE
CITY OF INDIANAPOLIS.  (FOR BREVITY'S SAKE THE PARTIES WILL BE REFERRED
TO AS CHASE, INDIANAPOLIS GAS, CITIZENS GAS, AND THE CITY,
RESPECTIVELY.)  THE POWER OF THE DISTRICT COURT TO ENTERTAIN THIS
LITIGATION WAS SUSTAINED BY THE CIRCUIT COURT OF APPEALS FOR THE
SEVENTH CIRCUIT UNDER THE PROVISION OF THE JUDICIAL CODE CONFERRING
UPON THE DISTRICT COURTS JURISDICTION "OF ALL SUITS OF A CIVIL NATURE
...  WHERE THE MATTER IN CONTROVERSY EXCEEDS  ...  THREE THOUSAND
DOLLARS, AND  ... IS BETWEEN CITIZENS OF DIFFERENT STATES  ...  " 36
STAT. 1091; 28 U.S.C. SEC. 41(1).  THE CORRECTNESS OF THIS
JURISDICTIONAL RULING MUST BE DETERMINED BEFORE THE MERITS OF CHASE'S
CLAIMS CAN BE CONSIDERED.  THE SPECIFIC QUESTION IS THIS:  DOES AN
ALIGNMENT OF THE PARTIES IN RELATION TO THEIR REAL INTERESTS IN THE
"MATTER IN CONTROVERSY" SATISFY THE SETTLED REQUIREMENTS OF DIVERSITY
JURISDICTION? 

AS IS TRUE OF MANY PROBLEMS IN THE LAW, THE ANSWER IS TO BE FOUND NOT
IN LEGAL LEARNING BUT IN THE REALITIES OF THE RECORD.  THOUGH VARIOUSLY
EXPRESSED IN THE DECISIONS, THE GOVERNING PRINCIPLES ARE CLEAR.  TO
SUSTAIN DIVERSITY JURISDICTION THERE MUST EXIST AN "ACTUAL," HELM V.
ZARECOR, 222 U.S. 32, 36, "SUBSTANTIAL," NILES-BEMENT-POND CO. V. IRON
MOULDERS UNION, 254 U.S. 77, 81, CONTROVERSY BETWEEN CITIZENS OF
DIFFERENT STATES, ALL OF WHOM ON ONE SIDE OF THE CONTROVERSY ARE
CITIZENS OF DIFFERENT STATES FROM ALL PARTIES ON THE OTHER SIDE. 
STRAWBRIDGE V. CURTISS, 3 CRANCH 267.  DIVERSITY JURISDICTION CANNOT BE
CONFERRED UPON THE FEDERAL COURTS BY THE PARTIES' OWN DETERMINATION OF
WHO ARE PLAINTIFFS AND WHO DEFENDANTS.  IT IS OUR DUTY, AS IT IS THAT
OF THE LOWER FEDERAL COURTS, TO "LOOK BEYOND THE PLEADINGS AND ARRANGE
THE PARTIES ACCORDING TO THEIR SIDES IN THE DISPUTE."  DAWSON V.
COLUMBIA TRUST CO., 197 U.S. 178, 180.  LITIGATION IS THE PURSUIT OF
PRACTICAL ENDS, NOT A GAME OF CHESS.  WHETHER THE NECESSARY "COLLISION
OF INTERESTS," DAWSON V. COLUMBIA TRUST CO., SUPRA, AT 181, EXISTS, IS
THEREFORE NOT TO BE DETERMINED BY MECHANICAL RULES.  IT MUST BE
ASCERTAINED FROM THE "PRINCIPAL PURPOSE OF THE SUIT," EAST TENNESSEE,
V. & G.R. V. GRAYSON, 119 U.S. 240, 244, AND THE "PRIMARY AND
CONTROLLING MATTER IN DISPUTE," MERCHANTS' COTTON PRESS CO. V.
INSURANCE CO., 151 U.S. 368, 385.  THESE FAMILIAR DOCTRINES GOVERNING
THE ALIGNMENT OF PARTIES FOR PURPOSES OF DETERMINING DIVERSITY OF
CITIZENSHIP HAVE CONSISTENTLY GUIDED THE LOWER FEDERAL COURTS  FN1  AND
THIS COURT.  FN2 

AND SO WE TURN TO THE ACTUALITIES OF THIS LITIGATION. 

CHASE IS THE TRUSTEE UNDER A MORTGAGE DEED, TO SECURE A BOND ISSUE,
EXECUTED BY INDIANAPOLIS GAS IN 1902.  IN 1906 CITIZENS GAS WAS FORMED
TO COMPETE WITH INDIANAPOLIS GAS IN THE DISTRIBUTION OF LIGHT, HEAT,
AND POWER TO THE PEOPLE OF INDIANAPOLIS.  ITS FRANCHISE PROVIDED THAT
AFTER THE EXPIRATION OF TWENTY-FIVE YEARS AND THE PERFORMANCE OF
CERTAIN SPECIFIED CONDITIONS, THE COMPANY SHOULD BE WOUND UP AND ITS
PROPERTY CONVEYED TO THE CITY SUBJECT TO THE COMPANY'S "OUTSTANDING
LEGAL OBLIGATIONS."  THE COMPETITION BETWEEN THE TWO GAS COMPANIES
CONTINUED UNTIL 1913, WHEN INDIANAPOLIS GAS LEASED ALL OF ITS GAS PLANT
PROPERTY TO CITIZENS GAS FOR A TERM OF NINETY-NINE YEARS.  CITIZENS GAS
AGREED TO PAY AS RENTAL (A) THE INTEREST ON THE LESSOR'S OUTSTANDING
BONDED INDEBTEDNESS, AND (B) ANNUAL SUMS EQUAL TO A SIX PER CENT RETURN
ON INDIANAPOLIS GAS'S COMMON STOCK.  FOR TWENTY-TWO YEARS THEREAFTER
CITIZENS GAS OPERATED THE MORTGAGED PROPERTY AND PAID THE INTEREST ON
THE BONDS.  IN 1935, PURSUANT TO ITS FRANCHISE, CITIZENS GAS CONVEYED
ITS ENTIRE PROPERTY, INCLUDING THAT COVERED BY ITS LEASE FROM
INDIANAPOLIS GAS, TO THE CITY.  BUT THE CITY REFUSED TO REGARD ITSELF
BOUND BY THIS LEASE.  ON MARCH 2, 1936, THE CITY AND INDIANAPOLIS GAS
AGREED THAT, PENDING THE SETTLEMENT OF THE "PRESENTLY EXISTING
CONTROVERSY" BETWEEN THEM AS TO WHETHER THE LEASE WAS VALID AND BINDING
UPON THE CITY, THE LATTER WOULD DEPOSIT IN ESCROW SUMS EQUAL TO THE
INTEREST AND DIVIDEND PAYMENTS FALLING DUE.  THE AGREEMENT EXPRESSLY
PROVIDED THAT IT WAS MADE WITHOUT PREJUDICE TO EITHER PARTY'S "POSITION
OR RIGHTS." 

CHASE THEREUPON FILED A BILL OF COMPLAINT IN THE DISTRICT COURT,
NAMING AS DEFENDANTS INDIANAPOLIS GAS, CITIZENS GAS, AND THE CITY.  IT
PRAYED THAT THE LEASE FROM INDIANAPOLIS GAS TO CITIZENS GAS BE DECLARED
VALID AND BINDING UPON THE DEFENDANTS, AND AS SUCH BE DEEMED PART OF
THE SECURITY FOR THE PERFORMANCE OF THE MORTGAGE OBLIGATIONS; THAT THE
CITY BE ORDERED TO PERFORM ALL OF THE LESSEE'S OBLIGATIONS IN THE LEASE
AND TO PAY DIRECTLY TO THE PLAINTIFF ALL OF THE INTEREST PAYMENTS AS
THEY SHALL BECOME DUE; THAT JUDGMENT FOR OVERDUE INTEREST BE ENTERED
AGAINST THE DEFENDANTS "LIABLE THEREFOR"; AND THAT THE PLAINTIFF BE
AWARDED COSTS AND ATTORNEYS' FEES.  THE CITY AND CITIZENS GAS
SPECIFICALLY DENIED THAT THE LEASE WAS VALID AND BINDING UPON THEM;
THEY ALLEGED, FURTHER, THAT THE CONTROVERSY EXISTED SOLELY BETWEEN
INDIANAPOLIS GAS AND THE CITY, "CITIZENS" OF THE SAME STATE.  IN ITS
ANSWER, INDIANAPOLIS GAS DENIED THAT IT HAD "EVER CONTENDED OR ADMITTED
THAT THE SAID NINETY-NINE YEAR LEASE WAS NOT AND IS NOT A VALID AND
BINDING OBLIGATION" UPON THE DEFENDANTS.    FINDING "NO COLLISION
BETWEEN THE INTERESTS OF THE PLAINTIFF AND THE INTERESTS OF THE
INDIANAPOLIS GAS COMPANY," THE DISTRICT COURT REALIGNED THE LATTER AS A
PARTY PLAINTIFF, AND FINDING IDENTITY OF CITIZENSHIP BETWEEN SOME OF
THE PLAINTIFFS AND THE REMAINING DEFENDANTS, DISMISSED THE SUIT FOR
WANT OF JURISDICTION.  THE CIRCUIT COURT OF APPEALS REVERSED, ONE JUDGE
DISSENTING, 96 F.2D 363, AND CERTIORARI WAS DENIED, 305 U.S. 600. 

ON REMAND TO THE DISTRICT COURT, CHASE FILED A SUPPLEMENTAL BILL
ALLEGING DEFAULT AS TO INTEREST PAYMENTS FALLING DUE AND PRAYING
JUDGMENT AGAINST THE DEFENDANTS IN THE AMOUNT OF THE UNPAID COUPONS. 
IT ALLEGED THAT "NEITHER THE INDIANAPOLIS GAS COMPANY NOR CITIZENS GAS
COMPANY, NOR BOTH OF THEM, HAVE PROPERTY SUFFICIENT TO PAY THE INTEREST
IN DEFAULT ON THE BONDS, OTHER THAN THE PROPERTY NOW IN THE POSSESSION
AND UNDER THE CONTROL OF THE CITY OF INDIANAPOLIS."  THIS WAS ADMITTED
BY INDIANAPOLIS GAS.  THE DISTRICT COURT HELD ON THE MERITS THAT THE
LEASE WAS NOT ENFORCEABLE AGAINST EITHER CITIZENS GAS OR THE CITY; THAT
THE FORMER HAD NO POWER UNDER ITS FRANCHISE TO BIND THE LATTER TO THE
LEASE, AND THAT BY CONVEYING THE LEASED PROPERTY TO THE CITY, CITIZENS
GAS THEREBY DISCHARGED ITSELF OF ITS LESSEE OBLIGATIONS.  ACCORDINGLY,
THE COURT ORDERED THAT JUDGMENT BE ENTERED ONLY AGAINST INDIANAPOLIS
GAS FOR THE AMOUNT OF THE UNPAID INTEREST. 

ASSERTING THAT THE DISTRICT COURT ERRED IN NOT HOLDING THE LEASE
VALID AND ENFORCEABLE AGAINST THE DEFENDANTS, BOTH CHASE AND
INDIANAPOLIS GAS APPEALED.  THE CIRCUIT COURT OF APPEALS SUSTAINED
THEIR POSITION AND AGAIN REVERSED, 113 F.2D 217.  THE COURT HELD,
FURTHER, THAT CHASE WAS ENTITLED TO A JUDGMENT FOR UNPAID INTEREST
AGAINST THE PARTIES IN THE FOLLOWING ORDER OF LIABILITY:  THE CITY,
CITIZENS GAS, AND INDIANAPOLIS GAS.  WE GRANTED CERTIORARI, 311 U.S.
636, BECAUSE OF THE IMPORTANT JURISDICTIONAL ISSUE INVOLVED IN THE
LITIGATION. 

THE FACTS LEAVE NO ROOM FOR DOUBT THAT ON THE MERITS ONLY ONE
QUESTION PERMEATES THIS LITIGATION:  IS THE LEASE WHEREBY INDIANAPOLIS
GAS IN 1913 CONVEYED ALL ITS GAS PLANT PROPERTY TO CITIZENS GAS VALID
AND BINDING UPON THE CITY?  THIS IS THE "PRIMARY AND CONTROLLING MATTER
IN DISPUTE."  THE REST IS WINDOW-DRESSING DESIGNED TO SATISFY THE
REQUIREMENTS OF DIVERSITY JURISDICTION.  EVERYTHING ELSE IN THE CASE IS
INCIDENTAL TO THIS DOMINATING CONTROVERSY, WITH RESPECT TO WHICH
INDIANAPOLIS GAS AND THE CITY, "CITIZENS" OF THE SAME STATE, ARE ON
OPPOSITE SIDES.  FN3  THAT THE CASE PRESENTS "ONLY ONE FUNDAMENTAL
ISSUE" AND THAT THAT IS THE OBLIGATION OF THE CITY UNDER THE LEASE,
CHASE ADMITS AND INDEED INSISTS UPON IN ITS BRIEF ON THE MERITS.  CHASE
AND INDIANAPOLIS GAS HAVE ALWAYS BEEN UNITED ON THIS ISSUE:  BOTH HAVE
ALWAYS CONTENDED FOR THE VALIDITY OF THE LEASE AND THE CITY'S
OBLIGATION UNDER IT.  THE OPINION OF THE DISTRICT COURT LAYS BARE THE
HEART OF THIS CONTROVERSY: 

"THERE CAN BE NO DOUBT THAT BOTH PLAINTIFF AND THE DEFENDANT, THE
INDIANAPOLIS GAS COMPANY, HAVE AT ALL TIMES ASSERTED THAT THE LEASE IN
QUESTION IS VALID AND IS BINDING UPON THE CITY, AS TRUSTEE.  NEITHER IS
THERE ANY DOUBT AS TO THEIR INTEREST IN SUSTAINING THE VALIDITY OF SUCH
LEASE AT THE TIME OF THE INSTITUTION OF THIS ACTION, PRIOR HERETO, AND
AT ALL TIMES SUBSEQUENT THERETO, AND THAT MANY CONFERENCES HAVE BEEN
HELD BY AND BETWEEN THEM, THROUGH THEIR ATTORNEYS, AND MANY LETTERS
HAVE PASSED BETWEEN THEM RELATING TO THIS SUBJECT.  ...  LATER, WHEN
THE PARTIES (I. E., INDIANAPOLIS GAS AND THE CITY) WERE UNABLE TO
ADJUST THEIR DIFFERENCES AND ARRIVE AT AN AGREEMENT, IT WAS DECIDED BY
THE INDIANAPOLIS GAS COMPANY AND THE PLAINTIFF THAT A SUIT SHOULD BE
INSTITUTED.  THE COMMON STOCKHOLDERS OF THAT COMPANY, OF COURSE, HAD A
VITAL INTEREST IN THE QUESTION OF THE VALIDITY OF THE LEASE BECAUSE, IF
THE LEASE IS VALID, THEY ARE ASSURED OF A SIX PER CENT RETURN UPON
THEIR STOCK FOR MANY YEARS.  IF, HOWEVER, A FORECLOSURE SUIT SHOULD
HAVE BEEN BEGUN, OR IF THE LEASE IS INVALID, NO SUCH RETURN IS
ASSURED.  IT WAS NATURAL, THEREFORE, THAT THE GAS COMPANY SHOULD TAKE
AN ACTIVE INTEREST IN THE LITIGATION AND ATTEMPT TO GUIDE IT ALONG THE
COURSE THAT WOULD BE MOST ADVANTAGEOUS TO IT AND TO ITS STOCKHOLDERS." 

PLAINLY, THEREFORE, CHASE AND INDIANAPOLIS GAS ARE, COLLOQUIALLY
SPEAKING, PARTNERS IN LITIGATION.  THE PROPERTY COVERED BY THE LEASE IS
NOW IN THE CITY'S POSSESSION; CHASE IS SIMPLY ACTING TO PROTECT THE
BONDHOLDERS' SECURITY.  AS TO INDIANAPOLIS GAS, IF THE LEASE IS UPHELD,
IT WILL CONTINUE TO RECEIVE A SIX PER CENT RETURN ON ITS CAPITAL, AND
THE BURDEN OF PAYING THE INTEREST ON ITS BONDED INDEBTEDNESS WILL BE
NOT UPON IT BUT UPON THE CITY.  WHAT CHASE WANTS, INDIANAPOLIS GAS
WANTS, AND THE CITY DOES NOT WANT.  YET, THE CITY AND INDIANAPOLIS GAS
WERE MADE TO HAVE A COMMON INTEREST AGAINST CHASE WHEN, AS A MATTER OF
FACT, THE INTERESTS OF THE CITY AND OF INDIANAPOLIS GAS ARE OPPOSED TO
ONE ANOTHER.  THEREFORE, IF REGARD BE HAD TO THE REQUIREMENTS OF
JURISDICTIONAL INTEGRITY, INDIANAPOLIS GAS AND CHASE ARE ON THE SAME
SIDE OF THE CONTROVERSY NOT ONLY FOR THEIR OWN PURPOSES BUT ALSO FOR
PURPOSES OF DIVERSITY JURISDICTION.  BUT SUCH REALIGNMENT PLACES
INDIANA "CITIZENS" ON BOTH SIDES OF THE LITIGATION AND PRECLUDES
ASSUMPTION OF JURISDICTION BASED UPON DIVERSITY OF CITIZENSHIP.  WE ARE
THUS COMPELLED TO THE CONCLUSION THAT THE DISTRICT COURT WAS WITHOUT
JURISDICTION.  FN4  AND, OF COURSE, THIS COURT, BY ITS DENIAL OF
CERTIORARI WHEN THE CASE WAS HERE THE FIRST TIME, COULD NOT CONFER THE
JURISDICTION WHICH CONGRESS HAS DENIED. 

THIS IS NOT A SACRIFICE OF JUSTICE TO TECHNICALITY.  FOR THE QUESTION
HERE IS NOT WHETHER CHASE AND INDIANAPOLIS GAS MAY PURSUE WHAT THEY
CONCEIVE TO BE JUST CLAIMS AGAINST THE CITY, BUT WHETHER THEY MAY
PURSUE THEM IN THE FEDERAL COURTS IN INDIANA, RATHER THAN IN ITS STATE
COURTS.  THE FACT THAT CHASE PREFERS THE ADJUDICATION OF ITS CLAIMS BY
THE FEDERAL COURT IS CERTAINLY NO REASON WHY WE SHOULD DENY THE PLAIN
FACTS OF THE CONTROVERSY AND YIELD TO ILLUSIVE ARTIFICES.  SETTLED
RESTRICTIONS AGAINST BRINGING LOCAL DISPUTES INTO THE FEDERAL COURTS
CANNOT THUS BE CIRCUMVENTED. 

THESE REQUIREMENTS, HOWEVER TECHNICAL SEEMING, MUST BE VIEWED IN THE
PERSPECTIVE OF THE CONSTITUTIONAL LIMITATIONS UPON THE JUDICIAL POWER
OF THE FEDERAL COURTS,  FN5  AND OF THE JUDICIARY ACTS IN DEFINING THE
AUTHORITY OF THE FEDERAL COURTS WHEN THEY SIT, IN EFFECT, AS STATE
COURTS.  SEE MADISONVILLE TRACTION CO. V. MINING CO., 196 U.S. 239,
255, AND EX PARTE SCHOLLENBERGER, 96 U.S. 369, 377.  THE DOMINANT NOTE
IN THE SUCCESSIVE ENACTMENTS OF CONGRESS RELATING TO DIVERSITY
JURISDICTION, IS ONE OF JEALOUS RESTRICTION, OF AVOIDING OFFENSE TO
STATE SENSITIVENESS, AND OF RELIEVING THE FEDERAL COURTS OF THE
OVERWHELMING BURDEN OF "BUSINESS THAT INTRINSICALLY BELONGS TO THE
STATE COURTS," IN ORDER TO KEEP THEM FREE FOR THEIR DISTINCTIVE FEDERAL
BUSINESS.  SEE FRIENDLY, THE HISTORIC BASIS OF DIVERSITY JURISDICTION,
41 HARV. L. REV. 483, 510; SHAMROCK OIL CORP. V. SHEETS, 313 U.S. 100,
108-09; HEALY V. RATTA, 292 U.S. 263, 270.  "THE POLICY OF THE STATUTE
(CONFERRING DIVERSITY JURISDICTION UPON THE DISTRICT COURTS) CALLS FOR
ITS STRICT CONSTRUCTION.  THE POWER RESERVED TO THE STATES, UNDER THE
CONSTITUTION, TO PROVIDE FOR THE DETERMINATION OF CONTROVERSIES IN
THEIR COURTS MAY BE RESTRICTED ONLY BY THE ACTION OF CONGRESS IN
CONFORMITY TO THE JUDICIARY SECTIONS OF THE CONSTITUTION.  ... DUE
REGARD FOR THE RIGHTFUL INDEPENDENCE OF STATE GOVERNMENTS, WHICH SHOULD
ACTUATE FEDERAL COURTS, REQUIRES THAT THEY SCRUPULOUSLY CONFINE THEIR
OWN JURISDICTION TO THE PRECISE LIMITS WHICH THE STATUTE HAS DEFINED." 
HEALY V. RATTA, SUPRA, AT 270.  IN DEFINING THE BOUNDARIES OF DIVERSITY
JURISDICTION, THIS COURT MUST BE MINDFUL OF THIS GUIDING CONGRESSIONAL
POLICY.  SEE HEPBURN & DUNDAS V. ELLZEY, 2 CRANCH 445; NEW ORLEANS V.
WINTER, 1 WHEAT.  91; MORRIS V. GILMER, 129 U.S. 315, 328-29; COAL
COMPANY V. BLATCHFORD, 11 WALL.  172; SHAMROCK OIL CORP. V. SHEETS, 313
U.S. 100; AND COMPARE OLD GRANT V. M'KEE, 1 PET. 248; ELGIN V.
MARSHALL, 106 U.S. 578; HEALY V. RATTA, 292 U.S. 263; MCNUTT V. GENERAL
MOTORS ACCEPTANCE CORP., 298 U.S. 178.  REVERSED. 

FN1  E.G., PITTSBURGH, C. & ST. L. RY. CO. V. BALTIMORE & OHIO R.
CO., 61 F. 705; CILLEY V. PATTEN, 62 F. 498; BOARD OF TRUSTEES V.
BLAIR, 70 F. 414; ALLEN-WEST COMMISSION CO. V. BRASHEAR, 176 F. 119;
LINDAUER V. COMPANIA PALOMAS, 247 F. 428; DEGRAFFENREID V. YOUNT-LEE
OIL CO., 30 F.2D 574. 

FN2  IN ADDITION TO THE CASES CITED IN THE TEXT, SEE REMOVAL CASES,
100 U.S. 457, 468-70; PACIFIC R. CO. V. KETCHUM, 101 U.S. 289, 298-99;
CORBIN V. VAN BRUNT, 105 U.S. 576; EVERS V. WATSON, 156 U.S. 527, 532;
DOCTOR V. HARRINGTON, 196 U.S. 579; VENNER V. GREAT NORTHERN RY. CO.,
209 U.S. 24; STEELE V. CULVER, 211 U.S. 26, 29; LEE V. LEHIGH VALLEY
COAL CO., 267 U.S. 542; SUTTON V. ENGLISH, 246 U.S. 199. 

FN3  IT IS CONTENDED THAT, NOTWITHSTANDING THEIR INDISSOLUBLE BOND ON
THE CONTROLLING ISSUE, THERE ARE "SUFFICIENT MATTERS IN CONTROVERSY"
BETWEEN CHASE AND INDIANAPOLIS GAS TO PRECLUDE THEIR ALIGNMENT ON THE
SAME SIDE.  CHASE, OF COURSE, DID NOT BRING THIS SUIT IN ORDER TO
OBTAIN A DECLARATION THAT, REGARDLESS OF THE VALIDITY OF THE LEASE,
INDIANAPOLIS GAS IS STILL ULTIMATELY RESPONSIBLE FOR THE INTEREST
PAYMENTS ON ITS BONDED INDEBTEDNESS.  THAT WAS NOT REALLY IN ISSUE, AND
BY ITS ANSWER, INDIANAPOLIS GAS TOOK IT OUT OF THE CASE.  THE FURTHER
ARGUMENT IS MADE THAT, BY ENTERING INTO THE ESCROW AGREEMENT WITH THE
CITY, INDIANAPOLIS GAS HAS ASSERTED A CLAIM TO THE INTEREST PAYMENTS
ADVERSE TO THAT OF CHASE AND THE BONDHOLDERS.  BUT THE FACTS ARE
AGAINST THIS CONTENTION.  THE AGREEMENT DEALS MERELY WITH THE
DISPOSITION OF THE INTEREST FALLING DUE DURING THE PENDENCY OF THE
LITIGATION.  MOREOVER, THE LEASE BETWEEN INDIANAPOLIS GAS AND CITIZENS
GAS CONTAINS NO PROVISIONS REQUIRING PAYMENT OF THE INTEREST DIRECT TO
CHASE OR THE BONDHOLDERS.  NOR CAN DIVERSITY JURISDICTION BE RESTED
UPON SO FLIMSY A BASIS AS CHASE'S PRAYER FOR REIMBURSEMENT OF COSTS AND
ATTORNEYS' FEES.  THE TAIL FLIES WITH THE KITE. 

FN4  COMPARE DAWSON V. COLUMBIA TRUST CO., 197 U.S. 178, A SUIT BY A
PENNSYLVANIA MORTGAGEE OF A GEORGIA WATERWORKS COMPANY TO RESTRAIN A
GEORGIA CITY FROM BUILDING A NEW WATERWORKS AND TO COMPEL SPECIFIC
PERFORMANCE OF THE CITY'S CONTRACT WITH THE WATERWORKS COMPANY.  THE
LATTER WAS JOINED AS A DEFENDANT, ON THE THEORY THAT IT WAS A PARTY TO
THE CONTRACT SOUGHT TO BE ENFORCED.  THE COURT HELD THAT THE BILL
SHOULD BE DISMISSED FOR LACK OF JURISDICTION:  "  ...  THE COURT WILL
LOOK BEYOND THE PLEADINGS AND ARRANGE THE PARTIES ACCORDING TO THEIR
SIDES IN THE DISPUTE.  WHEN THAT IS DONE IT IS OBVIOUS THAT THE WATER
WORKS COMPANY IS ON THE PLAINTIFF'S SIDE."  197 U.S. AT 180.  AYRES V.
WISWALL, 112 U.S. 187, AND CONEY V. WINCHELL, 116 U.S. 227, ARE NOT
APPLICABLE HERE.  THEY HOLD MERELY THAT IN A FORECLOSURE SUIT THE
MORTGAGEE MAY JOIN THE MORTGAGOR AND HIS ASSIGNEE AS DEFENDANTS; THEY
DID NOT INVOLVE ANY CONTROVERSY BETWEEN THE MORTGAGOR AND THE
"ASSIGNEE" AS TO WHETHER THE ASSIGNMENT IS BINDING UPON THE LATTER. 

SUTTON V. ENGLISH, 246 U.S. 199, CLEARLY HOLDS THAT THE PARTIES MUST
BE ALIGNED ACCORDING TO THEIR "ATTITUDE TOWARDS THE ACTUAL AND
SUBSTANTIAL CONTROVERSY."  246 U.S. AT 204.  THE PLAINTIFFS, WHO
INCLUDED ALL OF THE HEIRS OF MARY JANE EXCEPT CORA, SOUGHT TO ESTABLISH
THEIR RIGHT TO CERTAIN PROPERTY CLAIMED TO HAVE BELONGED TO MARY JANE. 
THE CLAIMANTS COULD NOT RECOVER UNLESS THEY PROVED THAT A RESIDUARY
BEQUEST TO CORA WAS INVALID - AND, WITH RESPECT TO THIS ISSUE, THEIR
POSITION WAS COMPLETELY ADVERSE TO CORA'S.  "BUT, AS ALREADY POINTED
OUT, EVEN COULD COMPLAINANTS SUCCEED IN SHOWING THAT MARY JANE HUBBARD
AT THE TIME OF HER DEATH WAS ENTITLED TO THE COMMUNITY PROPERTY, HER
WILL GIVING ALL THE RESIDUE OF HER PROPERTY TO CORA D. SPENCER STILL
STANDS IN THE WAY OF THEIR SUCCEEDING TO IT AS HEIRS-AT-LAW, AND HENCE
THEIR PRAYER TO HAVE THAT WILL ANNULLED WITH RESPECT TO THE RESIDUARY
CLAUSE IS ESSENTIAL TO THEIR RIGHT TO ANY RELIEF IN THE SUIT."  246
U.S. AT 207.  IF THE PLAINTIFFS PREVAILED ON THIS ISSUE OF THE VALIDITY
OF THE RESIDUARY GIFT TO CORA, THEIR INTERESTS AND HERS WOULD THEN BE
THE SAME WITH RESPECT TO THE REMAINING ISSUES IN THE CASE.  BUT THE
COURT HELD THAT IN RELATION TO THE "ACTUAL AND SUBSTANTIAL
CONTROVERSY," CORA AND THE PLAINTIFFS WERE ON OPPOSITE SIDES, THEREBY
SUSTAINING DIVERSITY JURISDICTION.  IN SUTTON V. ENGLISH, ALIGNMENT OF
THE PARTIES WITH RESPECT TO THEIR REAL INTERESTS SUSTAINED DIVERSITY;
SUCH ALIGNMENT HERE PRECLUDES JURISDICTION.  THAT CASE AND THIS ARE
APPLICATIONS OF THE SAME PRINCIPLE. 

FN5  CF. STRAWBRIDGE V. CURTISS, 3 CRANCH 267; CALIFORNIA V. SOUTHERN
PACIFIC CO., 157 U.S. 229, 261; TREINIES V. SUNSHINE MINING CO., 308
U.S. 66, 71. 

MR. JUSTICE JACKSON: 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, MR. JUSTICE REED AND I ARE
UNABLE TO CONCUR IN THIS DISPOSITION OF THESE WRITS, IN VIEW OF WHAT WE
CONSIDER TO BE THE CONTROLLING FACTS OF THIS CONTROVERSY. 

CHASE IS TRUSTEE UNDER A MORTGAGE EXECUTED IN 1902 BY INDIANAPOLIS
GAS TO SECURE A BOND ISSUE.  THE MORTGAGE COVERED A PUBLIC UTILITY GAS
PLANT AND DISTRIBUTION SYSTEM, TOGETHER WITH AFTER-ACQUIRED PROPERTY,
INCLUDING INTANGIBLES.    IN 1913, INDIANAPOLIS GAS TURNED THE
MORTGAGED UTILITY SYSTEM OVER TO CITIZENS GAS, A COMPETITOR, UNDER A
LEASE FOR A TERM OF NINETY-NINE YEARS.  CITIZENS GAS UNDERTOOK, AMONG
OTHER THINGS, TO PAY THE INTEREST "AS THE SAME SHALL FROM TIME TO TIME
FALL DUE" ON THE BONDS SECURED BY THE MORTGAGE, AND ALSO TO PAY CERTAIN
SUMS, SUBJECT TO SOME VARIATION BY REFERENCE TO THE PRICE RECEIVED FOR
GAS, TO THE STOCKHOLDERS OF INDIANAPOLIS GAS.  CITIZENS GAS UNIFIED
THIS LEASED PLANT WITH ITS OWN, AND IN 1935 CONVEYED TO THE CITY THE
ENTIRE PROPERTY IN CONFORMITY TO STATUTE WHICH IT IS CONTENDED
OBLIGATES THE CITY TO ASSUME THE OBLIGATIONS OF THE LEASE.  THE CITY
TOOK POSSESSION OF THE PROPERTY BUT REFUSED TO ACCEPT THE OBLIGATIONS
OF THE LEASE.  THE CITY AND INDIANAPOLIS GAS THEN AGREED THAT, PENDING
SETTLEMENT OF THE CONTROVERSY THUS PRECIPITATED, SUMS PAYABLE UNDER THE
LEASE AS INTEREST SHOULD BE DEPOSITED IN ESCROW, INSTEAD OF BEING PAID
TO CHASE.  ACCORDINGLY, THERE WAS DEFAULT IN THE PAYMENT TO THE TRUSTEE
OF INTEREST ON THE BONDS. 

FOR JURISDICTIONAL PURPOSES, INDIANAPOLIS GAS, THE MORTGAGE DEBTOR,
AND THE CITY, WHOSE POSSESSION OF THE PROPERTY UNDER THE CIRCUMSTANCES
WAS ALLEGED TO RESULT IN AN ASSUMPTION OF THE DEBT, AS WELL AS CITIZENS
GAS, THE INTERMEDIATE OWNER (WHICH SEEMS OF NO CONSEQUENCE TO THE
ISSUES UNDER DISCUSSION), WERE ALL CITIZENS OF THE STATE OF INDIANA,
WHILE CHASE, THE TRUSTEE, WAS A CITIZEN OF NEW YORK.  UNDER THESE
CIRCUMSTANCES, CHASE BEGAN AN ACTION IN THE FEDERAL DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF INDIANA, JOINING INDIANAPOLIS GAS, CITIZENS
GAS, AND THE CITY AS DEFENDANTS.  IT ASKED THAT THE INTEREST OF
INDIANAPOLIS GAS IN THE LEASE BE ADJUDGED A PART OF ITS SECURITY FOR
THE PERFORMANCE OF THE MORTGAGE OBLIGATIONS; THAT THE LEASE BE DECLARED
VALID AND BINDING UPON ALL THE DEFENDANTS; THAT THE CITY BE ORDERED TO
PAY DIRECTLY TO THE TRUSTEE ALL OF THE INTEREST PAYMENTS AS THEY FELL
DUE; THAT JUDGMENT FOR OVERDUE INTEREST BE ENTERED AGAINST THE
DEFENDANTS LIABLE THEREFOR, INCLUDING INDIANAPOLIS GAS; AND THAT
PLAINTIFF BE AWARDED COSTS AND ATTORNEYS' FEES. 

THIS COURT NOW DESTROYS FEDERAL JURISDICTION OF THE CASE BY A
TRANSPOSITION OF PARTIES, THE RADICAL NATURE OF WHICH APPEARS MOST
CLEARLY FROM THE JUDGMENTS RENDERED BELOW.  IT FORCES INTO THE POSITION
OF CO-PLAINTIFF ONE PARTY WHICH THE DISTRICT COURT ADJUDGED ENTITLED TO
RECOVER OVER A MILLION DOLLARS, AND ANOTHER WHICH THE DISTRICT COURT
ADJUDGED SOLELY LIABLE TO PAY THAT SUM.  THIS SAME ADVERSITY WAS FOUND
BY THE CIRCUIT COURT OF APPEALS, WHICH HELD THE ONE ENTITLED TO
RECEIVE, AND THE OTHER OBLIGATED TO PAY, THIS SUM WITH INCREASE DUE TO
THE LAPSE OF TIME.  IT MODIFIED THE JUDGMENT ONLY BY INCLUDING TWO
ADDITIONAL JUDGMENT DEBTORS ON WHOM IT FIXED PRIMARY AND SECONDARY
LIABILITY, BUT CONTINUED THE JUDGMENT AGAINST INDIANAPOLIS GAS WITH A
TERTIARY LIABILITY FOR ITS SATISFACTION.  THE SUBTLETY BY WHICH A
JUDGMENT DEBTOR IS TRANSFIGURED INTO A CREDITOR FOR JURISDICTIONAL
PURPOSES DESERVES ANALYSIS, IF FOR NO OTHER REASON THAN BECAUSE OF ITS
NOVELTY. 

THE COURT CANNOT RESORT TO A DECISION OF THE MERITS OF THE CASE, OVER
WHICH IT HOLDS ITSELF TO BE WITHOUT JURISDICTION, IN ORDER TO JUSTIFY
ITS CHARACTERIZATION OF SOME OF THE TRUSTEE'S CLAIMS AS "WINDOW
DRESSING" AND "ARTIFICE."  THE MEASURE OF JURISDICTION SHOULD BE TAKEN
FROM THE PLEADINGS, UNLESS THE CLAIMS ARE FRIVOLOUS ON THEIR FACE. 
THAT IS NOT THE CASE HERE.  IN ULTIMATE EFFECT, CHASE ALLEGED A CAUSE
OF ACTION AND SOUGHT JUDGMENT AGAINST THE CITY UPON ITS PERSONAL
UNDERTAKING TO ASSUME AND PAY THE INDEBTEDNESS UPON THE MORTGAGE GIVEN
BY INDIANAPOLIS GAS TO THE PLAINTIFF.  IT ALSO ALLEGED A CAUSE OF
ACTION AND SOUGHT JUDGMENT AGAINST INDIANAPOLIS GAS FOR THE AMOUNT OF
THE COUPON INTEREST.  BOTH DEMANDS WERE IN EXCESS OF $3,000.  IF THE
PLAINTIFF HAD ASSERTED THESE DEMANDS IN TWO SEPARATE ACTIONS, NO ONE
WOULD DOUBT THAT BOTH WERE WITHIN THE JURISDICTION OF THE DISTRICT
COURT.  IN EACH, THERE IS AN ADEQUATE DIVERSITY OF CITIZENSHIP, AND
EACH INVOLVES THE REQUISITE JURISDICTIONAL AMOUNT, AND EACH IS "ACTUAL"
AND "SUBSTANTIAL" ENOUGH TO SUPPORT THE JURISDICTION, IF THIS MEANS
ANYTHING MORE THAN THAT A DEMAND EXCEEDING $3,000 MUST BE INVOLVED.  A
UNITED STATES DISTRICT COURT IS NOT WITHOUT JURISDICTION TO RENDER A
JUDGMENT EXCEEDING $3,000 ON CONFESSION IF THERE IS THE REQUISITE
DIVERSITY OF CITIZENSHIP.  RE METROPOLITAN RAILWAY RECEIVERSHIP, 208
U.S. 90 AT 108.  THE TRUSTEE'S RIGHT TO JUDGMENT AGAINST THE MORTGAGOR,
EVEN THOUGH UNCONTESTED, IS A MATTER OF SUBSTANCE, FOR THE JUDGMENT IS
THE IMPORTANT - INDEED INDISPENSABLE - MEANS OF PURSUING THE MORTGAGED
PROPERTY INTO THE HANDS OF THE CITY, IN THE EVENT THAT IT SHOULD TURN
OUT IN THE SUIT AGAINST THE CITY THAT IT HAD NOT BECOME PERSONALLY
LIABLE FOR ANY PART OF THE MORTGAGE DEBT. 

JURISDICTION OF THE FEDERAL COURTS IS INDEED A VARIABLE AND ILLUSORY
THING, IF THE JURISDICTION WHICH A DISTRICT COURT ADMITTEDLY HAS OF TWO
SEPARATE CAUSES OF ACTION IS LOST WHEN THEY ARE UNITED IN ONE,
AGREEABLY TO THE FEDERAL RULES OF PROCEDURE, BECAUSE THE ONE DEFENDANT
AS A SURETY SEEKS TO ENFORCE ITS EQUITABLE RIGHT TO BE EXONERATED BY
THE OTHER, WHO IS ALLEGED TO BE THE PRINCIPAL DEBTOR. 

THE DOCTRINE OF REALIGNMENT PERMITS AND REQUIRES A NOMINAL DEFENDANT
TO BE TREATED AS A PLAINTIFF FOR THE PURPOSE OF DEFINING THE REAL
CONTROVERSY, WHERE NO REAL CAUSE OF ACTION IS ASSERTED AGAINST HIM BY
THE PLAINTIFF; BUT IT DOES NOT ADMIT OF SUCH TREATMENT OF A DEFENDANT
AGAINST WHOM THE PLAINTIFF ASSERTS A CAUSE OF ACTION WITHIN THE
JURISDICTION OF THE COURT.  THE PLAINTIFF CANNOT RIGHTLY BE DEPRIVED OF
THE BENEFIT OF THAT JURISDICTION, CONFERRED UPON HIM BY LAWS ENACTED
PURSUANT TO THE CONSTITUTION OF THE UNITED STATES, BECAUSE THE COURT
MAY THINK THAT SUCH A CAUSE OF ACTION IS RELATIVELY LESS IMPORTANT THAN
THAT ASSERTED AGAINST ANOTHER DEFENDANT, OR BECAUSE ONE ACTION
"DOMINATES" THE OTHER, OR BECAUSE ONE IS MORE "ACTUAL" OR "SUBSTANTIAL"
THAN THE OTHER.  THE STATUTE ITSELF SETS UP THE CRITERION OF
SUBSTANTIALITY BY FIXING THE JURISDICTIONAL AMOUNT AT $3,000. 
MOREOVER, IN THIS CASE, WHETHER EITHER OF THE RIGHTS ASSERTED IS MORE
SUBSTANTIAL THAN THE OTHER DEPENDS ON THE OUTCOME OF THE LITIGATION,
WHICH CAN HARDLY BE USED TO DETERMINE JURISDICTION WHICH MUST EXIST AT
THE BEGINNING OF THE LITIGATION. 

IF WE EXAMINE THIS CONTROVERSY IN DETAIL, IT APPEARS THAT THE
CONFLICTS BETWEEN THE TRUSTEE AND ITS MORTGAGOR WERE NOT FEIGNED OR
MERELY FORMAL.  WHILE THE MORTGAGE AND THE DEBT, WHICH CREATED THE
OPPOSITION INHERENT IN THE RELATION OF MORTGAGOR AND MORTGAGEE OR
BETWEEN DEBTOR AND CREDITOR, WERE UNDENIED, CHASE WAS ASKING THAT ITS
LIEN BE JUDICIALLY CONSTRUED TO COVER NOT MERELY THE PHYSICAL PROPERTY
DESCRIBED THEREIN BUT ALSO THE ENTIRE INTEREST OF INDIANAPOLIS GAS IN
THE LEASE, WHICH REQUIRED PAYMENTS TO STOCKHOLDERS OVER AND ABOVE THE
INTEREST PAYMENTS FOR THE BONDHOLDERS.  FURTHERMORE, CHASE ASKED THE
COURT TO SET ASIDE THE ESCROW AGREEMENT BY WHICH INDIANAPOLIS AND THE
CITY HAD ASSUMED TO EXCLUDE CHASE FROM DOMINION OVER THE ESCROW FUNDS. 
CHASE DEMANDED THAT INDIANAPOLIS GAS BE DENIED FUTURE CONTROL OVER SUCH
FUNDS AND THAT THEY BE PAID DIRECTLY TO ITSELF.  THESE WERE CONFLICTS
AS TO THE EXTENT OF ITS INTEREST IN, AND CONTROL OVER, ANY CAUSE OF
ACTION AGAINST THE CITY.  THEY EXISTED BETWEEN CHASE AND THE DEFENDANT
INDIANAPOLIS GAS, AND CONCERNED THEM ALONE. 

THERE WAS ALSO AN ISSUE AS TO THE AGGREGATE AMOUNT OF THE TRUSTEE'S
CLAIM, WHICH ALL DEFENDANTS HAD A COMMON INTEREST IN MINIMIZING.  THE
TRUSTEE CLAIMED TO BE ENTITLED TO INTEREST AT 6%, AFTER DEFAULT, ON
COUPONS WHICH BORE A 5% INTEREST RATE, AND IT ALSO CLAIMED INTEREST ON
OVERDUE INTEREST.  THIS COURT HAS HELD THAT WHERE THE ONLY ISSUE
CONCERNS THE AMOUNT OF THE DEBT, AS TO WHICH A MORTGAGOR AGREES WITH
THE PLAINTIFF, BUT THE ISSUE IS CONTESTED ONLY BY ANOTHER MORTGAGOR WHO
HAS ASSUMED THE ENTIRE MORTGAGE DEBT, THE MORTGAGE AND THE DEBT ARE THE
REAL SUBJECT MATTER OF THE CONTROVERSY; THAT THE DECREE WHEN THE AMOUNT
IS ASCERTAINED MUST RUN AGAINST ALL DEBTORS; AND THAT THE UNCONTESTING
MORTGAGOR IS A NECESSARY PARTY ON THE SIDE OPPOSITE THE MORTGAGEE. 
AYRES V. WISWALL, 112 U.S. 187. 

THERE WERE OTHER ISSUES ON WHICH THE DEFENDANTS WERE IN SHARP
CONFLICT BETWEEN THEMSELVES.  INDIANAPOLIS GAS AND CHASE BOTH SERVED
THEIR RESPECTIVE INTERESTS BY CONTENDING AGAINST THE CITY THAT ITS ACTS
HAD THE LEGAL EFFECT OF BINDING IT TO THE TERMS OF THE LEASE.  BUT
THEIR COMMON ATTITUDE IN RELATION TO THIS ISSUE SPRANG FROM DIFFERENT
LEGAL ORIGINS.  THE RIGHTS OF CHASE HAD THEIR SOURCE AND THEIR MEASURE
IN THE MORTGAGE.  THE MORTGAGE MIGHT OR MIGHT NOT, DEPENDING UPON THE
OUTCOME OF THE LITIGATION, BE CONSTRUED TO GIVE CHASE A RIGHT TO
ENFORCE FOR ITS OWN BENEFIT THE LEASE TERMS AS AGAINST THE CITY. 
INDIANAPOLIS GAS, ON THE OTHER HAND, DERIVED NO RIGHTS AGAINST THE CITY
FROM THAT INSTRUMENT AND WAS NOT, LIKE CHASE, LIMITED BY IT.
INDIANAPOLIS GAS'S RIGHTS HAD NO OTHER MEASURE THAN THAT FOUND IN THE
TERMS OF THE LEASE ITSELF. 

WE WOULD BE DILIGENT, NO LESS THAN THE MAJORITY, TO PREVENT
IMPOSITION ON THE JURISDICTION OF THE FEDERAL COURTS BY MEANS OF
"WINDOW DRESSING" OR "ARTIFICE."  WE FIND IN THIS CASE NOTHING THAT
WARRANTS EITHER CHARACTERIZATION, AND WE THINK THAT THE PRECEDENTS
INVOKED TO SUPPORT TODAY'S ACTION REVEAL THE GAP WHICH DIVIDES THE
DOCTRINE OF REALIGNMENT, AS HERETOFORE APPLIED BY THIS COURT, FROM THE
APPLICATION MADE OF IT TODAY. 

THE MAJORITY OPINION LEANS HEAVILY ON DAWSON V. COLUMBIA TRUST CO.,
197 U.S. 178.  MR. JUSTICE HOLMES IN THAT CASE SAID:  "  ...  IT IS
OBVIOUS THAT THE WATER WORKS COMPANY IS ON THE PLAINTIFF'S SIDE AND WAS
MADE A DEFENDANT SOLELY FOR THE PURPOSE OF REOPENING IN THE UNITED
STATES COURT A CONTROVERSY WHICH HAD BEEN DECIDED AGAINST IT IN THE
COURTS OF THE STATE."  AND HE SAID AGAIN:  "  ...  WHEN THE ARRANGEMENT
OF THE PARTIES IS MERELY A CONTRIVANCE BETWEEN FRIENDS FOR THE PURPOSE
OF FOUNDING A JURISDICTION WHICH OTHERWISE WOULD NOT EXIST, THE DEVICE
CANNOT BE ALLOWED TO SUCCEED."  AND SO SAY WE.  BUT THERE IS NOT THE
SLIGHTEST INDICATION OF THIS KIND OF CONNIVANCE IN THE CASE BEFORE US. 

IN HELM V. ZARECOR, 222 U.S. 32, THIS COURT REFUSED TO ALIGN WITH THE
PLAINTIFFS A CORPORATION ALTHOUGH ITS BOARD AND OFFICERS WERE IN ENTIRE
AGREEMENT WITH THE POSITION OF COMPLAINANTS ON THE MERITS OF THE CASE. 
ANOTHER OF THE CASES INVOKED IS NILES-BEMENT CO. V. IRON MOULDERS
UNION, 254 U.S. 77.  HERE A NEW JERSEY CORPORATION SOUGHT TO BREAK A
STRIKE BY FILING A BILL IN AN OHIO DISTRICT COURT AGAINST LABOR UNIONS,
INDIVIDUAL STRIKERS, AND AN OHIO CORPORATION, ALL CITIZENS OF OHIO. 
THE NEW JERSEY PLAINTIFF OWNED A CONTROLLING INTEREST IN THE OHIO
DEFENDANT, THE TWO HAD COMMON OFFICERS AND DIRECTORS, AND NO RELIEF
WHATEVER WAS ASKED AGAINST THE OHIO COMPANY, WHICH THE BILL ALLEGED WAS
BEING DELAYED IN DELIVERY OF GOODS BECAUSE OF THE STRIKE.  THE COURT
REFUSED TO ALLOW SUCH AN IMPOSITION ON ITS JURISDICTION.  IN SUTTON V.
ENGLISH, 246 U.S. 199, THIS COURT HELD IT TO BE ERROR TO ALIGN ONE OF
THE DEFENDANTS WITH THE PLAINTIFF FOR JURISDICTIONAL PURPOSES WHERE HER
INTEREST WAS ADVERSE TO PLAINTIFF ON ONE OUT OF FOUR ISSUES, ALTHOUGH
WITH PLAINTIFF AS TO THREE OF THE FOUR. 

WE TAKE THE STATEMENT IN THE OPINION OF THE COURT, THAT ITS BASIS IS
"NOT IN LEGAL LEARNING BUT IN THE REALITIES OF THE RECORD," TO BE
ANOTHER WAY OF SAYING THAT IT DISAGREES WITH THE LOWER COURT'S VIEW OF
THE FACTS RATHER THAN WITH ITS VIEW OF THE LAW.  REVIEW OF FACTS IS NOT
THE CONVENTIONAL FUNCTION OF THIS COURT, AND RESORT TO IT AT THIS STAGE
OF THIS LITIGATION IS SOMEWHAT LESS THAN FAIR TO THE COURTS BELOW AS
WELL AS TO THE LITIGANTS. 

THREE YEARS AGO THIS COURT REFUSED TO REVIEW THE DECISION OF THE
CIRCUIT COURT OF APPEALS THAT THIS CONTROVERSY WAS WITHIN THE FEDERAL
JURISDICTION.  INDIANAPOLIS V. CHASE NATIONAL BANK, 305 U.S. 600.  OF
COURSE, A DENIAL OF CERTIORARI IS NOT TO BE TAKEN AS A RULING ON THE
MERITS OF ANY QUESTION PRESENTED.  HOWEVER, WHERE THE CASE IS AGAIN
BROUGHT HERE AFTER SOME YEARS OF LITIGATION, JURISDICTION OUGHT NOT TO
BE OVERTURNED ON LIGHT OR INCONSEQUENTIAL GROUNDS, OR ON DISAGREEMENTS
WITH THE COURT BELOW ON MATTERS OF FACT.  TO DO SO HERE IS LIKELY TO
RESULT IN FURTHER AND, AS WE SEE IT, NEEDLESS DELAY IN SETTLING THE
STATUS OF AN IMPORTANT UTILITY AND THE OBLIGATIONS AND RIGHTS OF A
POPULOUS MUNICIPALITY.  WE THINK IT THE DUTY OF THE COURT TO END THIS
CONTROVERSY BY PROCEEDING TO JUDGMENT ON THE MERITS, AND THAT NOTHING
IN THIS RECORD JUSTIFIES OUSTING THESE PARTIES FROM THE FEDERAL
COURTS.  IF, AS THE OPINION INTIMATES, THE FOREFATHERS ARE THOUGHT TO
HAVE BEEN UNWISE IN CREATING A FEDERAL JURISDICTION BASED ON DIVERSITY
OF CITIZENSHIP, WE SHOULD THINK THE REMEDY OF THOSE SO MINDED WOULD BE
FOUND IN CONGRESSIONAL WITHDRAWAL OF SUCH JURISDICTION, RATHER THAN IN
THE CONFUSING PROCESS OF JUDICIAL CONSTRICTION. 

WE WOULD FOLLOW THE WORDS OF THE JURISDICTIONAL STATUTE WHEN IT IS
SOUGHT TO RESTRICT ITS APPLICATION, QUITE AS FAITHFULLY AS WHEN THE
EFFORT IS TO ENLARGE IT BY RECOURSE TO DOCTRINES WHICH CONFLICT WITH
ITS WORDS.  COMPARE HEALY V. RATTA, 292 U.S. 263, 270. 
..END :




CUNO CORP. V. AUTOMATIC DEVICES CORP., 314 U.S. 84 


NO. 37.  ARGUED OCTOBER 22, 23, 1941.  - DECIDED NOVEMBER 10, 1941.  -
117 F.2D 361, REVERSED. 


1.  CLAIMS 2, 3, AND 11 OF THE MEAD PATENT, NO. 1,736,544, FOR
IMPROVEMENTS IN LIGHTERS (COMMONLY USED IN AUTOMOBILES) FOR CIGARS,
CIGARETTES, AND PIPES, HELD INVALID FOR WANT OF INVENTION.  P. 88. 

2.  MEAD'S ADDITION TO THE SO-CALLED WIRELESS OR CORDLESS LIGHTER OF
A THERMOSTATIC CONTROL - WHICH, AFTER THE PLUG WAS SET "ON" AND THE
HEATING COIL HAD REACHED THE PROPER TEMPERATURE, AUTOMATICALLY RETURNED
THE PLUG TO ITS "OFF" POSITION - WAS NOT INVENTION BUT A MERE EXERCISE
OF THE SKILL OF THE CALLING, AND AN ADVANCE PLAINLY INDICATED BY THE
PRIOR ART. P. 89. 

3.  THAT MEAD'S COMBINATION PERFORMED A NEW AND USEFUL FUNCTION DID
NOT MAKE IT PATENTABLE.  THE NEW DEVICE, HOWEVER USEFUL, MUST REVEAL
THE FLASH OF CREATIVE GENIUS, NOT MERELY THE SKILL OF THE CALLING.  P.
90. 

CUNO ENGINEERING CORP. V. AUTOMATIC DEVICES CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 313 U.S. 553, LIMITED TO THE QUESTION WHETHER CLAIMS 2,
3, AND 11 OF THE MEAD PATENT NO. 1,736,544 ARE VALID.  IN A SUIT FOR
INFRINGEMENT, THE JUDGMENT OF THE DISTRICT COURT THAT THE CLAIMS WERE
NOT INFRINGED, 34 F.SUPP.  146, WAS REVERSED BY THE CIRCUIT COURT OF
APPEALS, WHICH HELD THEM VALID AND INFRINGED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION IN EQUITY BROUGHT BY RESPONDENT FOR INFRINGEMENT,
INTER ALIA, UPON CLAIMS 2, 3, AND 11 OF PATENT NO. 1,736,544, GRANTED
NOVEMBER 19, 1929, ON THE APPLICATION OF H.E. MEAD, FILED AUGUST 24,
1927, FOR A CIGAR LIGHTER.  THE DISTRICT COURT HELD THESE CLAIMS NOT
INFRINGED.  34 F.SUPP.  146.  THE CIRCUIT COURT OF APPEALS REVERSED,
HOLDING THEM VALID AND INFRINGED.  117 F.2D 361.  WE GRANTED THE
PETITION FOR CERTIORARI, LIMITED TO THE QUESTION WHETHER CLAIMS 2, 3,
AND 11 OF THE MEAD PATENT ARE VALID, BECAUSE OF A CONFLICT BETWEEN THE
DECISION BELOW AND AUTOMATIC DEVICES CORP. V. SINKO TOOL &
MANUFACTURING CO., 112 F.2D 335, DECIDED BY THE CIRCUIT COURT OF
APPEALS FOR THE SEVENTH CIRCUIT. 

THE CLAIMS IN QUESTION  FN1  ARE FOR IMPROVEMENTS IN LIGHTERS,
COMMONLY FOUND IN AUTOMOBILES, FOR CIGARS, CIGARETTES AND PIPES.  THERE
WERE EARLIER LIGHTERS OF THE "REEL TYPE."  THE IGNITER UNIT WAS
CONNECTED WITH A SOURCE OF CURRENT BY A CABLE WHICH WAS WOUND ON A
SPRING DRUM SO THAT THE IGNITER UNIT AND CABLE COULD BE WITHDRAWN FROM
THE SOCKET AND BE USED FOR LIGHTING A CIGAR OR CIGARETTE.  AS THE
REMOVABLE PLUG WAS RETURNED TO THE SOCKET, THE WIRES WERE REELED BACK
INTO IT. THE CIRCUIT WAS CLOSED EITHER BY MANUAL OPERATION OF A BUTTON
OR BY WITHDRAWAL OF THE IGNITER FROM ITS SOCKET.  IN 1921, THE MORRIS
PATENT (NO. 1,376,154) WAS ISSUED FOR A SO-CALLED "WIRELESS" OR
"CORDLESS" LIGHTER.  THIS LIGHTER ELIMINATED THE CABLES AND THE
MECHANISM FOR WINDING AND UNWINDING THEM, IT PROVIDED FOR HEATING THE
IGNITED UNIT WITHOUT REMOVING IT FROM ITS SOCKET, AND IT ELIMINATED ALL
ELECTRICAL AND MECHANICAL CONNECTION OF THE IGNITER UNIT WITH THE
SOCKET ONCE IT WAS REMOVED THEREFROM FOR USE.  SEVERAL TYPES OF THE
"WIRELESS" OR "CORDLESS" LIGHTER APPEARED.  FN2  MORRIS REPRESENTED A
TYPE IN WHICH THE CIRCUIT WAS OPEN WHEN THE PLUG RESTED IN THE SOCKET
AND CLOSED WHEN THE PLUG WAS PUSHED FARTHER INTO THE SOCKET AGAINST THE
RESISTANCE OF A SPRING.  IN ZECCHINI (NO. 1,437,701) THE OPERATOR
PRESSED AND HELD DOWN A PUSH-BUTTON TO CLOSE THE CIRCUIT.  IN METZGER
(NO. 1,622,334) THE OPERATOR CLOSED THE CIRCUIT BY DEPRESSING AND
ROTATING THE PLUG.  IN EACH THE OPERATOR WAS OBLIGED TO HOLD THE PLUG,
OR THE CIRCUIT-CLOSING PART, IN PLACE UNTIL THE HEATING COIL BECAME HOT
ENOUGH FOR USE.  AFTER HE CONCLUDED THAT IT HAD BECOME HOT ENOUGH (BY
OBSERVATION OR GUESSWORK), HE REMOVED THE PLUG, USING IT LIKE A MATCH
OR HOT COAL, AND THEN REPLACED IT IN THE SOCKET.  THUS, THESE LIGHTERS
WERE SAID TO REQUIRE RATHER CONTINUAL ATTENTION ON THE PART OF THE
PERSON USING THEM, SO THAT THERE WOULD BE NO OVER-HEATING OR BURNING
OUT OF THE HEATING COIL. 

THIS INCONVENIENCE AND HAZARD WERE ELIMINATED, ACCORDING TO
RESPONDENT,  FN3  BY THE AUTOMATIC FEATURE OF THE MEAD PATENT.  MEAD
ADDED TO THE SO-CALLED "WIRELESS" OR "CORDLESS" LIGHTER A THERMOSTATIC
CONTROL RESPONSIVE TO THE TEMPERATURE OF THE HEATING COIL.  IN
OPERATION IT AUTOMATICALLY RETURNED THE PLUG TO ITS "OFF" POSITION
AFTER THE HEATING COIL HAD REACHED THE PROPER TEMPERATURE.  TO OPERATE
MEAD'S DEVICE, THE KNOB ON THE IGNITER PLUG WAS TURNED TO A POINT WHERE
AN ELECTRICAL CONNECTION WAS ESTABLISHED FROM THE BATTERY THROUGH THE
HEATING COIL.  THERE THE PLUG REMAINED TEMPORARILY LATCHED.  WHEN THE
HEATING COIL WAS SUFFICIENTLY HOT FOR USE, THE BIMETALLIC ELEMENTS IN
THE THERMOSTAT, RESPONSIVE TO THE TEMPERATURE CONDITION OF THE HEATING
COIL, CAUSED THE IGNITER PLUG TO BE RELEASED AND TO BE MOVED BY
OPERATION OF A SPRING TO OPEN-CIRCUIT POSITION.  THE PLUG MIGHT THEN BE
MANUALLY REMOVED FOR USE IN THE MANNER OF A MATCH, TORCH, OR EMBER. 
WHEN REPLACED IN THE SOCKET AFTER USE, IT WAS HELD IN OPEN-CIRCUIT
POSITION UNTIL NEXT NEEDED. 

PETITIONER MAKES SEVERAL OBJECTIONS TO THE VALIDITY OF THE CLAIMS:
THAT THEY DO NOT COMPLY WITH THE STANDARDS FOR FULL, CLEAR AND CONCISE
DESCRIPTION PRESCRIBED BY 35 U.S.C. SEC. 33, R.S. SEC. 4888; THAT THEY
ARE INDEFINITE AND BROADER THAN ANY DISCLOSED INVENTION; AND THAT THEY
ARE FOR A DEVICE SO IMPERFECT AND UNSUCCESSFUL THAT A CONSTRUCTION OF
THE CLAIMS BROAD ENOUGH TO INCLUDE IT IS NOT PERMISSIBLE.  SEE DEERING
V. WINONA HARVESTER WORKS, 155 U.S. 286, 295.  WE DO NOT, HOWEVER, STOP
TO CONSIDER THESE OBJECTIONS.  FOR IT IS OUR OPINION THAT THE MEAD
DEVICE WAS NOT THE RESULT OF INVENTION BUT A "MERE EXERCISE OF THE
SKILL OF THE CALLING," AN ADVANCE "PLAINLY INDICATED BY THE PRIOR ART."
ALTOONA PUBLIX THEATRES V. AMERICAN TRI-ERGON CORP., 294 U.S. 477,
486. 

THERMOSTATIC CONTROLS OF A HEATING UNIT, OPERATING TO CUT OFF AN
ELECTRIC CURRENT ENERGIZING THE UNIT WHEN ITS TEMPERATURE HAD REACHED
THE DESIRED POINT, WERE WELL KNOWN TO THE ART WHEN MEAD MADE HIS
DEVICE.  THEY HAD BEEN EMPLOYED IN A WIDE VARIETY OF ELECTRICAL DESIGNS
SINCE HAMMARSTROM, IN 1893(NO. 493,380), SHOWED A BIMETALLIC THERMOSTAT
TO BREAK A CIRCUIT WHEN IT GOT OVERCHARGED.  A FEW EXAMPLES WILL
SUFFICE.  HARLEY, IN 1907(NO. 852,326), INCLUDED SUCH A THERMOSTAT IN
AN ELECTRIC HEATER FOR VULCANIZING, SO AS TO LIMIT AUTOMATICALLY THE
TEMPERATURE ATTAINABLE.  ANDREWS, IN 1912(NO. 1,025,852), SHOWED A
BIMETALLIC THERMOSTAT IN AN ELECTRICAL FLAT IRON, DESIGNED TO OPEN THE
CIRCUIT AT A PREDETERMINED TEMPERATURE.  IN 1919, NEWSOM (NO.
1,318,168), SHOWED AN ELECTRIC COFFEE COOKER IN WHICH A THERMOSTAT,
ACTUATED BY THE TEMPERATURE WITHIN THE RECEPTACLE, OPERATED TO OPEN AND
CLOSE THE CIRCUIT INTERMITTENTLY.  STAHL, IN 1921(NO. 1,372,207),
SHOWED AN ELECTRIC SWITCH AUTOMATICALLY RELEASED BY OPERATION OF A
THERMOSTAT.  HURXTHAL, IN 1925(NO. 1,540,628), SHOWED AN ELECTRIC BREAD
TOASTER WITH A THERMOSTAT FOR STOPPING THE TOASTING WHEN THE BREAD
REACHED A GIVEN DEGREE OF TEMPERATURE.  COPELAND (NO. 1,844,206), FILED
APRIL 18, 1927, BEFORE MEAD, SHOWED AN ELECTRIC LIGHTER FOR CIGARS AND
CIGARETTES WITH THERMOSTATIC CONTROL.  IT DIFFERED FROM MEAD IN SEVERAL
RESPECTS.  THUS, IN COPELAND'S DEVICE A CIGAR WAS INSERTED IN A TUBE AT
THE END OF WHICH WAS A HEATING COIL.  BY PRESSING THE CIGAR AGAINST THE
HEATING COIL (OR IN ANOTHER FORM, BY PRESSING A PUSH-BUTTON) A SPRING
WAS OVERSET AND THE CIRCUIT CLOSED.  WHEN THE DESIRED TEMPERATURE OF
THE HEATING UNIT WAS REACHED, A THERMOSTATIC BAR PUSHED BACK THE SPRING
AND OPENED THE CIRCUIT.  THUS, IN THE COPELAND DEVICE THE CIGAR (OR THE
PUSH-BUTTON) WAS THE "MEANS FOR MOVING" THE "HEATING MEMBER" OF THE
MEAD CLAIMS SO AS TO ESTABLISH THE ENERGIZING ELECTRIC HEATING
CIRCUIT.  THE ADVANCE OF MEAD OVER COPELAND WAS THE USE OF THE
REMOVABLE PLUG BEARING THE HEATING UNIT, AS IN MORRIS, TO ESTABLISH THE
AUTOMATICALLY CONTROLLED CIRCUIT OF COPELAND. 

AND SO THE QUESTION IS WHETHER IT WAS INVENTION FOR ONE SKILLED IN
THE ART AND FAMILIAR WITH MORRIS AND COPELAND, AND WITH THE EXTENSIVE
USE OF THE AUTOMATIC THERMOSTATIC CONTROL OF AN ELECTRIC HEATING
CIRCUIT, TO APPLY THE COPELAND AUTOMATIC CIRCUIT TO THE MORRIS
REMOVABLE HEATING UNIT IN SUBSTITUTION FOR A CIRCUIT MANUALLY
CONTROLLED. 

TO INCORPORATE SUCH A THERMOSTATIC CONTROL IN A SO-CALLED "WIRELESS"
OR "CORDLESS" LIGHTER WAS NOT TO MAKE AN "INVENTION" OR "DISCOVERY"
WITHIN THE MEANING OF THE PATENT LAWS.  AS WE HAVE SHOWN, BOTH THE
THERMOSTATICALLY CONTROLLED HEATING UNIT AND THE LIGHTER WITH A
REMOVABLE PLUG BEARING THE HEATING UNIT WERE DISCLOSED BY THE PRIOR
ART. MORE MUST BE DONE THAN TO UTILIZE THE SKILL OF THE ART IN BRINGING
OLD TOOLS INTO NEW COMBINATIONS.  HAILES V. VAN WORMER, 20 WALL.  353,
368; PICKERING V. MCCULLOUGH, 104 U.S. 310, 318; THATCHER HEATING CO.
V. BURTIS, 121 U.S. 286, 294; CONCRETE APPLIANCES CO. V. GOMERY, 269
U.S. 177, 184-185; POWERS-KENNEDY CONTRACTING CORP. V. CONCRETE MIXING
& CONVEYING CO., 282 U.S. 175, 186; CARBICE CORP. V. AMERICAN PATENTS
DEV.  CO., 283 U.S. 420.  RESPONDENT, HOWEVER, CONTENDS THAT WHOLLY NEW
FUNCTIONS WERE INVOLVED IN MEAD'S CONCEPTION, VIZ., RELIEVING THE
OPERATOR OF THE NECESSITY OF MANUALLY HOLDING THE PLUG IN CLOSED
CIRCUIT POSITION, AND AUTOMATICALLY AND PERMANENTLY OPENING THE CIRCUIT
WHEN THE HEATING COIL WAS AT THE TEMPERATURE PREDETERMINED FOR ITS
PROPER USE.  AND RESPONDENT ARGUES, MEAD'S NEW COMBINATION HAD AN
ENTIRELY DIFFERENT MODE OF OPERATION FROM ANY "WIRELESS" LIGHTER THEN
IN EXISTENCE AND FROM ANY THERMOSTATICALLY CONTROLLED ELECTRIC DEVICE. 
FN4 

WE MAY CONCEDE THAT THE FUNCTIONS PERFORMED BY MEAD'S COMBINATION
WERE NEW AND USEFUL.  BUT THAT DOES NOT NECESSARILY MAKE THE DEVICE
PATENTABLE.  UNDER THE STATUTE (35 U.S.C. SEC. 31; R.S. SEC. 4886) THE
DEVICE MUST NOT ONLY BE "NEW AND USEFUL," IT MUST ALSO BE AN
"INVENTION" OR "DISCOVERY."  THOMPSON V. BOISSELIER, 114 U.S. 1, 11. 
SINCE HOTCHKISS V. GREENWOOD, 11 HOW.  248, 267, DECIDED IN 1851, IT
HAS BEEN RECOGNIZED THAT IF AN IMPROVEMENT IS TO OBTAIN THE PRIVILEGED
POSITION OF A PATENT MORE INGENUITY MUST BE INVOLVED THAN THE WORK OF A
MECHANIC SKILLED IN THE ART.  HICKS V. KELSEY, 18 WALL.  670; SLAWSON
V. GRAND STREET R. CO., 107 U.S. 649; PHILLIPS V. DETROIT, 111 U.S.
604; MORRIS V. MCMILLIN, 112 U.S. 244; SARANAC AUTOMATIC MACHINE CORP.
V. WIREBOUNDS PATENTS CO., 282 U.S. 704; HONOLULU OIL CORP. V.
HALLIBURTON, 306 U.S. 550.  "PERFECTION OF WORKMANSHIP, HOWEVER MUCH IT
MAY INCREASE THE CONVENIENCE, EXTEND THE USE, OR DIMINISH EXPENSE, IS
NOT PATENTABLE."  RECKENDORFER V. FABER, 92 U.S. 347, 356-357.  THE
PRINCIPLE OF THE HOTCHKISS CASE APPLIES TO THE ADAPTATION OR
COMBINATION OF OLD OR WELL KNOWN DEVICES FOR NEW USES.  PHILLIPS V.
DETROIT, SUPRA; CONCRETE APPLIANCES CO. V. GOMERY, SUPRA; POWERS
KENNEDY CONTRACTING CORP. V. CONCRETE MIXING & CONVEYING CO., SUPRA;
ELECTRIC CABLE JOINT CO. V. BROOKLYN EDISON CO., 292 U.S. 69; ALTOONA
PUBLIX THEATRES V. AMERICAN TRI-ERGON CORP., SUPRA; TEXTILE MACHINE
WORKS V. LOUIS HIRSCH TEXTILE MACHINES, INC., 302 U.S. 490; TOLEDO
PRESSED STEEL CO. V. STANDARD PARTS, INC., 307 U.S. 350.  THAT IS TO
SAY, THE NEW DEVICE, HOWEVER USEFUL IT MAY BE, MUST REVEAL THE FLASH OF
CREATIVE GENIUS, NOT MERELY THE SKILL OF THE CALLING.  IF IT FAILS, IT
HAS NOT ESTABLISHED ITS RIGHT TO A PRIVATE GRANT ON THE PUBLIC DOMAIN. 

TESTED BY THAT PRINCIPLE, MEAD'S DEVICE WAS NOT PATENTABLE.  WE
CANNOT CONCLUDE THAT HIS SKILL IN MAKING THIS CONTRIBUTION REACHED THE
LEVEL OF INVENTIVE GENIUS WHICH THE CONSTITUTION (ART. I, SEC. 8)
AUTHORIZES CONGRESS TO REWARD.  HE MERELY INCORPORATED THE WELL-KNOWN
THERMOSTAT INTO THE OLD "WIRELESS" LIGHTER TO PRODUCE A MORE EFFICIENT,
USEFUL, AND CONVENIENT ARTICLE.  CF. ELECTRIC CABLE JOINT CO. V.
BROOKLYN EDISON CO., SUPRA.  A NEW APPLICATION OF AN OLD DEVICE MAY NOT
BE PATENTED IF THE "RESULT CLAIMED AS NEW IS THE SAME IN CHARACTER AS
THE ORIGINAL RESULT" (BLAKE V. SAN FRANCISCO, 113 U.S. 679, 683), EVEN
THOUGH THE NEW RESULT HAD NOT BEFORE BEEN CONTEMPLATED.  PENNSYLVANIA
R. CO. V. LOCOMOTIVE ENGINE SAFETY TRUCK CO., 110 U.S. 490, 494, AND
CASES CITED.  CERTAINLY, THE USE OF A THERMOSTAT TO BREAK A CIRCUIT IN
A "WIRELESS" CIGAR LIGHTER IS ANALOGOUS TO, OR THE SAME IN CHARACTER
AS, THE USE OF SUCH A DEVICE IN ELECTRIC HEATERS, TOASTERS, OR IRONS,
WHATEVER MAY BE THE DIFFERENCE IN DETAIL OF DESIGN.  INGENUITY WAS
REQUIRED TO EFFECT THE ADAPTATION, BUT NO MORE THAN THAT TO BE EXPECTED
OF A MECHANIC SKILLED IN THE ART. 

STRICT APPLICATION OF THAT TEST IS NECESSARY LEST IN THE CONSTANT
DEMAND FOR NEW APPLIANCES THE HEAVY HAND OF TRIBUTE BE LAID ON EACH
SLIGHT TECHNOLOGICAL ADVANCE IN AN ART. THE CONSEQUENCES OF THE
ALTERNATIVE COURSE WERE FORCEFULLY POINTED OUT BY MR. JUSTICE BRADLEY
IN ATLANTIC WORKS V. BRADY, 107 U.S. 192, 200:  "SUCH AN INDISCRIMINATE
CREATION OF EXCLUSIVE PRIVILEGES TENDS RATHER TO OBSTRUCT THAN TO
STIMULATE INVENTION.  IT CREATES A CLASS OF SPECULATIVE SCHEMERS WHO
MAKE IT THEIR BUSINESS TO WATCH THE ADVANCING WAVE OF IMPROVEMENT, AND
GATHER ITS FOAM IN THE FORM OF PATENTED MONOPOLIES, WHICH ENABLE THEM
TO LAY A HEAVY TAX UPON THE INDUSTRY OF THE COUNTRY, WITHOUT
CONTRIBUTING ANYTHING TO THE REAL ADVANCEMENT OF THE ARTS.  IT
EMBARRASSES THE HONEST PURSUIT OF BUSINESS WITH FEARS AND APPREHENSIONS
OF CONCEALED LIENS AND UNKNOWN LIABILITIES TO LAWSUITS AND VEXATIOUS
ACCOUNTINGS FOR PROFITS MADE IN GOOD FAITH."  CF. MR. JUSTICE CAMPBELL
DISSENTING IN WINANS V. DENMEAD, 15 HOW.  330, 344, 345, 347; HAMILTON,
PATENTS AND FREE ENTERPRISE, MON.  NO. 31; INVESTIGATION OF
CONCENTRATION, OF ECONOMIC POWER, TEMPORARY NATIONAL ECONOMIC
COMMITTEE, 76TH CONG., 3D SESS., CH. VIII (1941). 

SUCH CONSIDERATIONS PREVENT ANY RELAXATION OF THE RULE OF THE
HOTCHKISS CASE AS RESPONDENT WOULD SEEM TO DESIRE.  REVERSED.    FN1
"2.  IN A DEVICE OF THE CLASS DESCRIBED, A REMOVABLE HEATING MEMBER
HAVING AN ELECTRICAL HEATING UNIT, A SOCKET FOR RECEIVING AND HOLDING
SAID HEATING MEMBER, ELECTRICAL CURRENT SUPPLY TERMINALS, MEANS FOR
MOVING SAID HEATING MEMBER TO A POSITION FOR ESTABLISHING AN ENERGIZING
CIRCUIT TO SAID HEATING UNIT, AND MEANS RESPONSIVE TO THE TEMPERATURE
OF SAID HEATING UNIT FOR INTERRUPTING SAID ENERGIZING CIRCUIT. 

"3.  IN A LIGHTING DEVICE FOR CIGARS AND THE LIKE, A REMOVABLE
HEATING MEMBER HAVING AN ELECTRIC HEATER, A SUPPORT FOR RECEIVING AND
HOLDING SAID HEATING MEMBER, CURRENT SUPPLY TERMINALS ON SAID SUPPORT,
SAID HEATING MEMBER BEING MOVABLE ON SAID SUPPORT TO A POSITION WHERE
SAID HEATING UNIT IS ENERGIZED FROM SAID TERMINALS AND MEANS RESPONSIVE
TO THE TEMPERATURE OF SAID HEATING UNIT FOR CONTROLLING THE HEATING
THEREOF. 

"11.  IN AN ELECTRIC LIGHTER OF THE CLASS DESCRIBED, A BASE MEMBER, A
HEATER MEMBER MOVABLY MOUNTED ON SAID BASE MEMBER, AN ELECTRIC HEATER
ON SAID HEATER MEMBER, ELECTRICAL SUPPLY TERMINALS ON SAID BASE MEMBER,
SAID HEATER MEMBER BEING MOVABLE BETWEEN AN ENERGIZED POSITION WHERE A
CIRCUIT IS ESTABLISHED FROM SAID TERMINALS TO SAID HEATER, AND AN OFF
POSITION WHERE SAID CIRCUIT IS INTERRUPTED, AND AUTOMATIC MEANS FOR
WITHDRAWING SAID HEATER MEMBER FROM THE ON POSITION TO THE OFF POSITION
UPON HEATING OF SAID HEATER." 

FN2  SOME OF THESE ARE REVIEWED IN CASCO PRODUCTS CORP. V. SINKO TOOL
& MFG. CO., 116 F.2D 119. 

FN3  A PATENT HOLDING COMPANY WHICH HOLDS THE MEAD PATENT UNDER MESNE
ASSIGNMENTS.  NO ISSUE, HOWEVER, IS RAISED UNDER THE ASSIGNMENT
STATUTE. 

FN4  RESPONDENT ARGUES THAT MEAD'S COMBINATION WAS DIFFERENT FROM ANY
PRIOR THERMOSTATIC DEVICE BECAUSE, IN THE LATTER, THE OPERATION OF THE
THERMOSTAT WAS PLACED EITHER UNDER THE CONTROL OF SOME OTHER THING,
SUCH AS THE SOLE PLATE OF AN ELECTRIC IRON, OR UNDER THE CONTROL OF AN
AUXILIARY RESISTANCE.  THE POINT IS THAT IN MEAD'S COMBINATION THE
EFFECTIVE OPERATION OF THE THERMOSTAT WAS PLACED UNDER THE SOLE CONTROL
OF THE TEMPERATURE OF THE WORKING RESISTANCE.  WE AGREE, HOWEVER, WITH
THE COURT BELOW THAT ANY SUCH DIFFERENCE WAS MERELY ONE OF DETAIL OF
DESIGN, ON WHICH MEAD'S INVENTION CANNOT REST.  IN ANY CASE, IT IS THE
TEMPERATURE CREATED IN THE VICINITY OF THE THERMOSTAT THAT IS
EFFECTIVE.  THE MANNER IN WHICH IT IS TRANSMITTED TO THE THERMOSTAT
DOES NOT RISE TO THE DIGNITY OF A PATENTABLE DEVICE. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 

MR. CHIEF JUSTICE STONE: 

I CONCUR IN THE RESULT. 

I AGREE THAT THE USE OF THE WELL KNOWN THERMOSTATICALLY CONTROLLED
HEATING CIRCUIT EXEMPLIFIED BY COPELAND, WITH THE REMOVABLE WIRELESS
HEATING UNIT PLUG OF MORRIS, IN SUBSTITUTION FOR THE MANUALLY
CONTROLLED CIRCUIT WHICH HAD PREVIOUSLY BEEN USED WITH THE PLUG,
EXHIBITED NO MORE THAN THE SKILL OF THE ART. THE DOUBT WHICH THE COURT
BELOW RESOLVED IN FAVOR OF PATENTABILITY BECAUSE COPELAND'S INVENTION
WAS "STILL-BORN" SHOULD, I THINK, HAVE BEEN RESOLVED IN FAVOR OF
PETITIONERS, BECAUSE MEAD WAS LIKEWISE STILL-BORN SO FAR AS ITS
SUBSTANTIAL COMMERCIAL SUCCESS IS CONCERNED. 

THE COMMERCIALLY SUCCESSFUL STRUCTURE FOR WHICH RESPONDENT CLAIMS THE
PROTECTION OF THE MEAD PATENT, AND WHICH THE COURT BELOW THOUGHT
SATISFIED A FELT NEED, IS NOT THE STRUCTURE DESCRIBED BY MEAD.  BOTH
EMBODY THE COMBINATION OF A THERMOSTATICALLY CONTROLLED HEATING CIRCUIT
WITH A HEATING UNIT BORNE ON A REMOVABLE WIRELESS PLUG AND USED AS A
MEANS TO CLOSE THE CIRCUIT.  BUT THEY DIFFER STRUCTURALLY IN A NUMBER
OF PARTICULARS. 

TO MENTION ONLY THE MORE IMPORTANT, MEAD SHOWED A ROTATABLE SOCKET
WHICH IS TURNED BY MANUALLY ROTATING THE PLUG WHEN PLACED IN THE
SOCKET, SO AS TO CLOSE THE HEATING CIRCUIT.  A LATERALLY EXTENDING PIN
PROJECTING FROM THE SIDE OF THE PLUG, IN THE MEAD STRUCTURE, ENGAGES
WITH A SPRING LATCH OUTSIDE THE SOCKET TO HOLD THE PLUG AND SOCKET IN
THE CIRCUIT-CLOSING POSITION TO WHICH THEY HAVE BEEN ROTATED, UNTIL THE
LATCH IS RELEASED BY THE THERMOSTATIC CONTROL, THUS PERMITTING THE PLUG
AND THE SOCKET, WHICH IS ACTIVATED BY A SPRING, TO ROTATE BACK TO THE
OPEN CIRCUIT POSITION.  THE BASE REQUIRED FOR THE ACCOMMODATION OF THE
ROTATING SOCKET AND ITS EXTERNALLY OPERATED MECHANISM WAS LARGE AND
CUMBERSOME.  RESPONDENT'S COMMERCIAL STRUCTURE, LIKE THE ALLEGED
INFRINGING DEVICE, UTILIZES A FIXED SOCKET WITHIN WHICH THE
THERMOSTATIC CIRCUIT CONTROL IS LOCATED AND INTO WHICH THE HEAT-UNIT
CARRYING PLUG MAY BE INSERTED WITHOUT NECESSITY OF ROTATING IT AS IN
THE CASE OF THE ROTATING PLUG WITH THE PROJECTING PIN SHOWN BY MEAD. 
THE THERMOSTATICALLY CONTROLLED CIRCUIT IS CLOSED BY PRESSING THE PLUG
FURTHER INTO THE SOCKET, THE PLUG BEING RESTORED TO AN OPEN CIRCUIT
POSITION BY A SPRING CARRIED ON THE PLUG, WHEN THE LATCH MAINTAINING
THE CLOSED CIRCUIT IS THERMOSTATICALLY RELEASED. 

THE COMMERCIALLY EXPLOITED DEVICE, BECAUSE OF THE DIFFERENCES IN ITS
STRUCTURE FROM THAT SHOWN BY MEAD, IS THE MORE COMPACT AND EASILY
OPERATED.  ITS UTILITY AS A LIGHTER TO BE LOCATED ON THE DASH OF AN
AUTOMOBILE, WHICH IS SAID TO BE THE MERIT OF THE MEAD INVENTION, IS
OBVIOUS.  IF THE IMPROVEMENTS RESULTING IN SUCH UTILITY INVOLVED
INVENTION, IT IS NOT THE INVENTION OF MEAD.  IF THEY EXHIBITED ONLY THE
SKILL OF THE ART, THEIR SUCCESS CANNOT BE RELIED ON TO ESTABLISH
INVENTION BY MEAD, WHO DID NOT SHOW OR MAKE THEM.  THE CASE IS
THEREFORE NOT ONE FOR THE APPLICATION OF THE DOCTRINE THAT COMMERCIAL
SUCCESS OR THE MANIFEST SATISFACTION OF A FELT NEED WILL TURN THE SCALE
IN FAVOR OF INVENTION. 

MR. JUSTICE FRANKFURTER JOINS IN THIS OPINION. 
..END :





AUTOMATIC DEVICES CORP. V. SINKO TOOL & MANUFACTURING CO., 314 U.S. 94 


NO. 6.  ARGUED OCTOBER 22, 1941.  - DECIDED NOVEMBER 10, 1941.  - 112
F.2D 335, AFFIRMED. 


DECIDED ON THE AUTHORITY OF CUNO ENGINEERING CORP. V. AUTOMATIC
DEVICES CORP., ANTE, P. 84. 

AUTOMATIC DEVICES CORP. V. SINKO TOOL & MANUFACTURING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 312 U.S. 711, LIMITED TO THE QUESTION WHETHER CLAIMS 2,
3, AND 11 OF THE MEAD PATENT NO. 1,736,544 ARE VALID.  IN A SUIT FOR
INFRINGEMENT, A JUDGMENT OF THE DISTRICT COURT HOLDING THE CLAIMS VALID
AND INFRINGED WAS REVERSED BY THE CIRCUIT COURT OF APPEALS, WHICH HELD
THEM INVALID AND NOT INFRINGED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO CUNO ENGINEERING CORP. V. AUTOMATIC
DEVICES CORP., ANTE, P. 84.  THE COURT BELOW HELD THAT CLAIMS 2, 3, AND
11 OF THE MEAD PATENT (NO. 1,736,544) WERE INVALID AND NOT INFRINGED. 
112 F.2D 335.  WE GRANTED THE PETITION FOR CERTIORARI LIMITED TO THE
QUESTION OF VALIDITY OF THOSE CLAIMS.  FOR THE REASONS STATED IN CUNO
ENGINEERING CORP. V. AUTOMATIC DEVICES CORP., SUPRA, THE JUDGMENT IS
AFFIRMED. 
..END :
























FED. LAND BANK V. BISMARCK CO., 314 U.S. 95 


NO. 76.  ARGUED OCTOBER 23, 1941.  - DECIDED NOVEMBER 10, 1941.  - 70
N.D. 607 - 297 N.W. 42, REVERSED. 


1.  AS CONSTRUED BY THE HIGHEST COURT OF THE STATE, THE PURCHASER IS
LIABLE FOR THE SALES TAX IMPOSED BY NORTH DAKOTA LAWS OF 1937, C. 249,
AND THIS CONSTRUCTION IS CONTROLLING.  P. 99. 

2.  SECTION 26 OF THE FEDERAL FARM LOAN ACT OF 1916 EXEMPTS A FEDERAL
LAND BANK FROM THE TAX IMPOSED BY NORTH DAKOTA LAWS OF 1937, C. 249, IN
RESPECT OF PURCHASES, MADE BY THE BANK FROM A RETAIL DEALER, OF
MATERIALS FOR THE IMPROVEMENT OF PROPERTY THERETOFORE ACQUIRED BY THE
BANK IN THE COURSE OF ITS OPERATIONS.  P. 99. 

3.  IN THE PROVISION OF SEC. 26 THAT EVERY FEDERAL LAND BANK,
"INCLUDING THE CAPITAL AND RESERVE OR SURPLUS THEREIN AND THE INCOME
DERIVED THEREFROM," SHALL BE EXEMPT FROM STATE TAXATION, THE WORDS
QUOTED DO NOT DELIMIT THE SCOPE OF THE EXEMPTION.  P. 99. 

4.  NOTHING IN THE LEGISLATIVE HISTORY OF SEC. 26, NOR OF SIMILAR
EXEMPTION CLAUSES IN OTHER STATUTES, REQUIRES A RESULT CONTRARY TO THAT
HERE REACHED.  P. 100. 

5.  A TAX UPON THE SALE OF MATERIALS TO BE USED IN IMPROVING REAL
ESTATE IS NOT A TAX UPON THE REAL ESTATE; AND THEREFORE THE TAX HERE
INVOLVED IS NOT WITHIN THE EXCEPTION FROM THE EXEMPTION.  P. 101. 

6.  THE EXERCISE BY THE FEDERAL GOVERNMENT OF A POWER DELEGATED TO IT
BY THE CONSTITUTION IS GOVERNMENTAL; AND WHEN CONGRESS CONSTITUTIONALLY
CREATES A CORPORATION THROUGH WHICH THE FEDERAL GOVERNMENT LAWFULLY
ACTS, THE ACTIVITIES OF SUCH CORPORATION ARE GOVERNMENTAL.  P. 102. 

7.  FEDERAL LAND BANKS ARE CREATED CONSTITUTIONALLY; THEY ARE FEDERAL
INSTRUMENTALITIES ENGAGED IN THE PERFORMANCE OF AN IMPORTANT
GOVERNMENTAL FUNCTION.  P. 102. 

8.  CONGRESS CONSTITUTIONALLY MAY IMMUNIZE FROM STATE TAXATION THE
LENDING FUNCTIONS (OR ACTIVITIES INCIDENTAL THERETO) OF FEDERAL LAND
BANKS.  P. 103. 

9.  IT IS FOR CONGRESS TO DETERMINE WHETHER IMMUNITY FROM ONE TYPE OF
TAX, RATHER THAN ANOTHER, IS WISE.  P. 104. 

FEDERAL LAND BANK OF ST. PAUL V. BISMARCK LUMBER CO. ET AL. 

CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA. 

CERTIORARI, 313 U.S. 556, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE BANK FOR THE AMOUNT OF A STATE SALES TAX. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO DECIDE WHETHER, IN VIEW OF SEC. 26 OF THE FEDERAL
FARM LOAN ACT OF JULY 17, 1916(C. 245, 39 STAT. 360, 380; 12 U.S.C.
SECS. 931-933),  FN1  PETITIONER IS SUBJECT TO THE SALES TAX ACT OF
NORTH DAKOTA,  FN2  THE PERTINENT SECTIONS OF WHICH ARE SET FORTH IN
THE MARGIN.  FN3 

PETITIONER, THE FEDERAL LAND BANK OF ST. PAUL, WAS CREATED PURSUANT
TO THE FEDERAL FARM LOAN ACT, SUPRA.  IN THE COURSE OF ITS OPERATIONS
IT ACQUIRED BY FORECLOSURE PROCEEDINGS CERTAIN FARM PROPERTIES IN
BURLEIGH COUNTY, NORTH DAKOTA.  FN4  TO EFFECT NECESSARY REPAIRS AND
IMPROVEMENTS TO THE BUILDINGS AND FENCES ON THESE PROPERTIES,
PETITIONER PURCHASED LUMBER AND OTHER BUILDING MATERIALS OF AN
AGGREGATE VALUE OF $408.26 FROM THE BISMARCK LUMBER COMPANY, A RETAIL
DEALER.  THE LUMBER COMPANY DEMANDED THE SUM OF $8.02 FROM PETITIONER,
REPRESENTING THE TOTAL AMOUNT OF THE STATE SALES TAX ON THE VARIOUS
PURCHASES.  THIS, PETITIONER REFUSED TO PAY.  ON MARCH 9, 1938,
PETITIONER FILED A COMPLAINT IN THE DISTRICT COURT OF BURLEIGH COUNTY
AGAINST THE LUMBER COMPANY AND THE STATE TAX COMMISSIONER,  FN5
ALLEGING THE FOREGOING FACTS AND PRAYING FOR AN ADJUDICATION OF NON
LIABILITY FOR THE SALES TAX ON THE GROUND THAT PETITIONER IS EXEMPT
UNDER SEC. 26 OF THE FEDERAL FARM LOAN ACT, SUPRA, AND THE FEDERAL
CONSTITUTION.  TO THIS COMPLAINT RESPONDENTS DEMURRED.  IN SUSTAINING
THE DEMURRER THE TRIAL COURT HELD THAT THE SALES TO PETITIONER WERE
SUBJECT TO THE TAX, THAT THE LUMBER COMPANY WAS REQUIRED TO COLLECT THE
TAX, AND THAT PETITIONER WAS UNDER A LEGAL DUTY TO PAY IT.
ACCORDINGLY, JUDGMENT WAS ENTERED AGAINST PETITIONER IN THE AMOUNT OF
THE TAX.  THE SUPREME COURT OF NORTH DAKOTA AFFIRMED THE JUDGMENT OF
THE TRIAL COURT.  FEDERAL LAND BANK V. BISMARCK LUMBER CO., 70 N.D.
607, 297 N.W. 42.  THE CASE IS HERE BECAUSE IT PRESENTS A QUESTION OF
IMPORTANCE IN THE ADMINISTRATION OF THE FEDERAL FARM LOAN ACT. 

WE ARE CONFRONTED WITH TWO QUESTIONS: 

FIRST.  DOES SEC. 26 INCLUDE WITHIN ITS BAN A STATE SALES TAX SUCH AS
THIS?  WE HOLD THAT IT DOES. 

SECOND.  CAN CONGRESS CONSTITUTIONALLY IMMUNIZE FROM STATE TAXATION
ACTIVITIES IN FURTHERANCE OF THE LENDING FUNCTIONS OF FEDERAL LAND
BANKS?  WE HOLD THAT IT CAN. 

I. IT IS CLEAR THAT THE NORTH DAKOTA STATUTE MAKES THE PURCHASER,
PETITIONER HERE, LIABLE FOR THE SALES TAX.  SECTION 6 OF THE ACT
REQUIRES THE RETAILER TO ADD THE TAX TO THE SALES PRICE AND DECLARES
THE TAX TO BE A DEBT FROM THE CONSUMER TO THE RETAILER.  SECTION 7
MAKES IT UNLAWFUL FOR THE RETAILER TO HOLD OUT THAT HE WILL ABSORB OR
REFUND THE TAX IN WHOLE OR IN PART.  THE SUPREME COURT OF NORTH DAKOTA
HAS HELD THAT THE SALES TAX IS LAID UPON THE PURCHASER.  JEWEL TEA CO.
V. STATE TAX COMMISSIONER, 70 N.D. 229, 293 N.W. 386.  THIS HOLDING WAS
REAFFIRMED IN THE DECISION BELOW.  THESE DETERMINATIONS OF THE
INCIDENCE OF THE TAX BY THE STATE COURT ARE CONTROLLING, AND
RESPONDENTS CONCEDE THE POINT. 

THE UNQUALIFIED TERM "TAXATION" USED IN SEC. 26 CLEARLY ENCOMPASSES
WITHIN ITS SCOPE A SALES TAX SUCH AS THE INSTANT ONE, AND THIS
CONCLUSION IS CONFIRMED BY THE STRUCTURE OF THE SECTION.  IN REACHING
AN OPPOSITE CONCLUSION THE COURT BELOW IGNORED THE PLAIN LANGUAGE,
"THAT EVERY FEDERAL LAND BANK  ...  SHALL BE EXEMPT FROM FEDERAL,
STATE, MUNICIPAL, AND LOCAL TAXATION," AND SEIZED UPON THE PHRASE,
"INCLUDING THE CAPITAL AND RESERVE OR SURPLUS THEREIN AND THE INCOME
DERIVED THEREFROM," AS DELIMITING THE SCOPE OF THE EXEMPTION.  THE
PROTECTION OF SEC. 26 CANNOT THUS BE FRITTERED AWAY.  WE RECENTLY HAD
OCCASION, UNDER OTHER CIRCUMSTANCES, TO POINT OUT THAT THE TERM
"INCLUDING" IS NOT ONE OF ALL-EMBRACING DEFINITION, BUT CONNOTES SIMPLY
AN ILLUSTRATIVE APPLICATION OF THE GENERAL PRINCIPLE.  PHELPS DODGE
CORP. V. LABOR BOARD, 313 U.S. 177, 189; SEE ALSO HELVERING V.
MORGAN'S, INC., 293 U.S. 121, 125.  IF THE BROAD EXEMPTION ACCORDED TO
"EVERY FEDERAL LAND BANK" WERE LIMITED TO THE SPECIFIC ILLUSTRATIONS
MENTIONED IN THE PARTICIPIAL PHRASE INTRODUCED BY "INCLUDING," THERE
WOULD HAVE BEEN NO NECESSITY TO EXCEPT FROM THE PURVIEW OF SEC. 26 THE
REAL ESTATE HELD BY THE LAND BANKS. 

THE ADDITIONAL EXEMPTIONS GRANTED TO FARM LOAN BONDS AND FIRST
MORTGAGES EXECUTED TO THE LAND BANKS ARE PROPER ADDITIONS TO THE
GENERAL EXEMPTION OF SEC. 26.  THE BONDS MAY BE HELD BY PRIVATE
PERSONS, AND, OF COURSE, THE GENERAL EXEMPTION OF SEC. 26 WOULD NOT
EXTEND TO THEM.  LIKEWISE, THE GENERAL EXEMPTION WOULD PROTECT
MORTGAGES EXECUTED TO THE LAND BANKS AND HELD BY THEM, BUT IT WOULD NOT
SURVIVE A TRANSFER. 

NOTHING IN THE LEGISLATIVE HISTORY OF SEC. 26 COMMANDS A CONTRARY
RESULT; FN6  AND A BROAD CONSTRUCTION IS INDICATED BY CONGRESS'S
INTENTION TO ADVANCE CREDIT TO FARM BORROWERS AT THE LOWEST POSSIBLE
INTEREST RATE.  THE LEGISLATIVE HISTORY OF SIMILAR EXEMPTION CLAUSES IN
OTHER STATUTES SUPPORTS OUR INTERPRETATION OF SEC. 26.  FN7 

IT CANNOT BE SERIOUSLY CONTENDED THAT THE TAX FALLS WITHIN THE REAL
ESTATE EXCEPTION TO SEC. 26.  OBVIOUSLY, A TAX UPON THE SALE OF
BUILDING MATERIALS TO BE USED ON THE REAL ESTATE OF A FEDERAL LAND BANK
IS NOT A TAX UPON THAT REAL ESTATE. 

II.  THE PRINCIPAL ARGUMENT OF RESPONDENTS, AND THE MAJOR GROUND OF
THE DECISION BELOW, IS THAT CONGRESS CANNOT CONSTITUTIONALLY IMMUNIZE
THE LENDING FUNCTIONS, OR THE ACTIVITIES INCIDENTAL THERETO, OF FEDERAL
LAND BANKS, FROM STATE TAXATION.  IT RUNS IN THIS FASHION:  CONGRESS
HAS AUTHORITY TO EXTEND IMMUNITY ONLY TO THE GOVERNMENTAL FUNCTIONS OF
THE FEDERAL LAND BANKS; THE ONLY GOVERNMENTAL FUNCTIONS OF THE LAND
BANKS ARE THOSE PERFORMED BY ACTING AS DEPOSITARIES AND FISCAL AGENTS
FOR THE FEDERAL GOVERNMENT N8 AND PROVIDING A MARKET FOR GOVERNMENT
BONDS; FN9  ALL OTHER FUNCTIONS OF THE LAND BANKS ARE PRIVATE;
PETITIONER HERE WAS ENGAGED IN AN ACTIVITY INCIDENTAL TO ITS BUSINESS
OF LENDING MONEY, AN ESSENTIALLY PRIVATE FUNCTION; THEREFORE SEC. 26
CANNOT OPERATE TO STRIKE DOWN A SALES TAX UPON PURCHASES MADE IN
FURTHERANCE OF PETITIONER'S LENDING FUNCTIONS. 

THE ARGUMENT THAT THE LENDING FUNCTIONS OF THE FEDERAL LAND BANKS ARE
PROPRIETARY RATHER THAN GOVERNMENTAL MISCONCEIVES THE NATURE OF THE
FEDERAL GOVERNMENT WITH RESPECT TO EVERY FUNCTION WHICH IT PERFORMS. 
THE FEDERAL GOVERNMENT IS ONE OF DELEGATED POWERS, AND FROM THAT IT
NECESSARILY FOLLOWS THAT ANY CONSTITUTIONAL EXERCISE OF ITS DELEGATED
POWERS IS GOVERNMENTAL.  GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S.
466, 477.  IT ALSO FOLLOWS THAT, WHEN CONGRESS CONSTITUTIONALLY CREATES
A CORPORATION THROUGH WHICH THE FEDERAL GOVERNMENT LAWFULLY ACTS, THE
ACTIVITIES OF SUCH CORPORATION ARE GOVERNMENTAL.  PITTMAN V. HOME
OWNERS' LOAN CORP., 308 U.S. 21, 32; GRAVES V. NEW YORK EX REL.
O'KEEFE, SUPRA, 477. 

THE FEDERAL LAND BANKS ARE CONSTITUTIONALLY CREATED, SMITH V. KANSAS
CITY TITLE & TRUST CO., 255 U.S. 180, AND RESPONDENTS DO NOT URGE
OTHERWISE.  THROUGH THE LAND BANKS THE FEDERAL GOVERNMENT MAKES
POSSIBLE THE EXTENSION OF CREDIT ON LIBERAL TERMS TO FARM BORROWERS. 
AS PART OF THEIR GENERAL LENDING FUNCTIONS, THE LAND BANKS ARE
AUTHORIZED TO FORECLOSE THEIR MORTGAGES AND TO PURCHASE THE REAL ESTATE
AT THE RESULTING SALE.  FN10  THEY ARE "INSTRUMENTALITIES OF THE
FEDERAL GOVERNMENT, ENGAGED IN THE PERFORMANCE OF AN IMPORTANT
GOVERNMENTAL FUNCTION."  FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229,
231; FEDERAL LAND BANK V. GAINES, 290 U.S. 247, 254.  THE NATIONAL FARM
LOAN ASSOCIATIONS,  FN11  THE LOCAL CO-OPERATIVE ORGANIZATIONS OF
BORROWERS THROUGH WHICH THE LAND BANKS MAKE LOANS TO INDIVIDUALS, ARE
ALSO FEDERAL INSTRUMENTALITIES.  KNOX NATIONAL FARM LOAN ASSN. V.
PHILLIPS, 300 U.S. 194, 202; FEDERAL LAND BANK V. GAINES, SUPRA, 254. 

CONGRESS HAS THE POWER TO PROTECT THE INSTRUMENTALITIES WHICH IT HAS
CONSTITUTIONALLY CREATED.  THIS CONCLUSION FOLLOWS NATURALLY FROM THE
EXPRESS GRANT OF POWER TO CONGRESS "TO MAKE ALL LAWS WHICH SHALL BE
NECESSARY AND PROPER FOR CARRYING INTO EXECUTION ALL POWERS VESTED BY
THE CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES.  CONST. ART.
I, SEC. 8, PAR. 18."  PITTMAN V. HOME OWNERS' LOAN CORP., 308 U.S. 21,
33, AND CASES CITED.  WE HAVE HELD ON THREE OCCASIONS THAT CONGRESS HAS
AUTHORITY TO PRESCRIBE TAX IMMUNITY FOR ACTIVITIES CONNECTED WITH, OR
IN FURTHERANCE OF, THE LENDING FUNCTIONS OF FEDERAL CREDIT AGENCIES. 
SMITH V. KANSAS CITY TITLE & TRUST CO., SUPRA; FEDERAL LAND BANK V.
CROSLAND, 261 U.S. 374; PITTMAN V. HOME OWNERS' LOAN CORP., SUPRA.
FN12  THE FIRST TWO OF THESE CASES DEALT WITH THE VERY SEC. 26 NOW IN
ISSUE.  THEY ARE CONCLUSIVE HERE. 

IN SUPPORT OF THEIR ARGUMENT RESPONDENTS RELY ON SMITH V. KANSAS CITY
TITLE & TRUST CO., SUPRA, AND FEDERAL LAND BANK V. PRIDDY, SUPRA.  IN
THE SMITH CASE WE HELD THAT FARM LOAN BONDS, WHICH MIGHT BE SECURED BY
FIRST MORTGAGES ACCUMULATED IN THE COURSE OF THE LAND BANKS' LENDING
ACTIVITIES,  FN13  COULD BE EXEMPTED FROM STATE TAXATION.  IN THE
PRIDDY CASE, MERELY AS AN AID TO THE PROPER CONSTRUCTION OF SEC. 4 OF
THE FEDERAL FARM LOAN ACT, GIVING THE LAND BANKS THE RIGHT TO SUE AND
BE SUED "AS FULLY AS NATURAL PERSONS," WE NOTED THAT THE LAND BANKS
POSSESSED SOME OF THE CHARACTERISTICS OF PRIVATE BUSINESS
CORPORATIONS.  FN14  THEIR CHARACTER AS FEDERAL INSTRUMENTALITIES WAS
SPECIFICALLY AFFIRMED AND THE BROAD TAX IMMUNITY GRANTED TO THEM WAS
NOT QUESTIONED.  MANIFESTLY, THESE CASES DO NOT SUPPORT RESPONDENTS'
CONSTITUTIONAL THEORIES. 

WE CANNOT ACCEDE TO THE SUGGESTION THAT THE SMITH AND CROSLAND CASES
CAN BE DISTINGUISHED, AS THEY WERE BY THE STATE COURT, ON THE GROUND
THAT A SALES TAX UPON PURCHASES MADE BY PETITIONER IN FURTHERANCE OF
ITS LENDING FUNCTIONS, UNLIKE THE TAXES IN THOSE CASES, BEARS SO
REMOTELY UPON PETITIONER'S FUNCTIONS AS TO BE BEYOND THE POWER OF
CONGRESS TO PROHIBIT.  WE HAVE FOUND THAT THE INSTANT TAX IS WITHIN THE
SCOPE OF SEC. 26; AND THAT SECTION IS A VALID ENACTMENT.  IT IS NOT OUR
FUNCTION TO SPECULATE WHETHER THE IMMUNITY FROM ONE TYPE OF TAX, AS
CONTRASTED WITH ANOTHER, IS WISE.  THAT IS A QUESTION SOLELY FOR
CONGRESS, ACTING WITHIN ITS CONSTITUTIONAL SPHERE, TO DETERMINE. 
PITTMAN V. HOME OWNERS' LOAN CORP., SUPRA, 33; SMITH V. KANSAS CITY
TITLE & TRUST CO., SUPRA, 213.  REVERSED. 

FN1  "SEC.  26.  THAT EVERY FEDERAL LAND BANK AND EVERY NATIONAL FARM
LOAN ASSOCIATION, INCLUDING THE CAPITAL AND RESERVE OR SURPLUS THEREIN
AND THE INCOME DERIVED THEREFROM, SHALL BE EXEMPT FROM FEDERAL, STATE,
MUNICIPAL, AND LOCAL TAXATION, EXCEPT TAXES UPON REAL ESTATE HELD,
PURCHASED, OR TAKEN BY SAID BANK OR ASSOCIATION UNDER THE PROVISIONS OF
EXECUTED TO FEDERAL LAND BANKS, OR TO JOINT STOCK LAND BANKS, AND FARM
LOAN BONDS ISSUED UNDER THE PROVISIONS OF THIS ACT, SHALL BE DEEMED AND
HELD TO BE INSTRUMENTALITIES OF THE GOVERNMENT OF THE UNITED STATES,
AND AS SUCH THEY AND THE INCOME DERIVED THEREFROM SHALL BE EXEMPT FROM
FEDERAL, STATE, MUNICIPAL, AND LOCAL TAXATION. 

"NOTHING HEREIN SHALL PREVENT THE SHARES IN ANY JOINT STOCK LAND BANK
FROM BEING INCLUDED IN THE VALUATION OF THE PERSONAL PROPERTY OF THE
OWNER OR HOLDER OF SUCH SHARES, IN ASSESSING TAXES IMPOSED BY AUTHORITY
OF THE STATE WITHIN WHICH THE BANK IS LOCATED; BUT SUCH ASSESSMENT AND
TAXATION SHALL BE IN MANNER AND SUBJECT TO THE CONDITIONS AND
LIMITATIONS CONTAINED IN SECTION FIFTY-TWO HUNDRED AND NINETEEN OF THE
REVISED STATUTES WITH REFERENCE TO THE SHARES OF NATIONAL BANKING
ASSOCIATIONS. 

"NOTHING HEREIN SHALL BE CONSTRUED TO EXEMPT THE REAL PROPERTY OF
FEDERAL AND JOINT STOCK LAND BANKS AND NATIONAL FARM LOAN ASSOCIATIONS
FROM EITHER STATE, COUNTY, OR MUNICIPAL TAXES, TO THE SAME EXTENT,
ACCORDING TO ITS VALUE, AS OTHER REAL PROPERTY IS TAXED." 

FN2  NORTH DAKOTA LAWS OF 1937, C. 249. 

FN3  "SEC.  2.  TAX IMPOSED.  THERE IS HEREBY IMPOSED, BEGINNING THE
FIRST DAY OF MAY, 1937, AND ENDING JUNE 30TH, 1939, A TAX OF TWO PER
CENT (2%) UPON THE GROSS RECEIPTS FROM ALL SALES OF TANGIBLE PERSONAL
PROPERTY, CONSISTING OF GOODS, WARES, OR MERCHANDISE, EXCEPT AS
OTHERWISE PROVIDED IN THIS ACT, SOLD AT RETAIL IN THE STATE OF NORTH
DAKOTA TO CONSUMERS OR USERS; ...  " (LAWS OF 1939, C. 234, SEC. 1,
EXTENDS THE PERIOD OF THE TAX THROUGH JUNE 30, 1941, AND S.B. NO. 40,
APPROVED MARCH 14, 1941, EXTENDS THE TAX THROUGH JUNE 30, 1943.) 

"SEC. 3.  EXEMPTIONS.  THERE ARE HEREBY SPECIFICALLY EXEMPTED FROM
THE PROVISIONS OF THIS ACT AND FROM COMPUTATION OF THE AMOUNT OF TAX
IMPOSED BY IT, THE FOLLOWING: 

"(A)  THE GROSS RECEIPTS FROM SALES OF TANGIBLE PERSONAL PROPERTY
WHICH THIS STATE IS PROHIBITED FROM TAXING UNDER THE CONSTITUTION OR
LAWS OF THE UNITED STATES OR UNDER THE CONSTITUTION OF THIS STATE. 
... 

"SEC. 6.  RETAILERS SHALL ADD THE TAX IMPOSED UNDER THIS ACT, OR THE
AVERAGE EQUIVALENT THEREOF, TO THE SALES PRICE OR CHARGE AND WHEN ADDED
SUCH TAXES SHALL CONSTITUTE A PART OF SUCH PRICE OR CHARGE, SHALL BE A
DEBT FROM CONSUMER OR USER TO RETAILER UNTIL PAID, AND SHALL BE
RECOVERABLE AT LAW IN THE SAME MANNER AS OTHER DEBTS.  ...    "SEC. 7. 
UNLAWFULACTS.  IT SHALL BE UNLAWFUL FOR ANY RETAILER TO ADVERTISE OR
HOLD OUT OR STATE TO THE PUBLIC OR TO ANY CONSUMER, DIRECTLY OR
INDIRECTLY, THAT THE TAX OR ANY PART THEREOF IMPOSED BY THIS ACT WILL
BE ASSUMED OR ABSORBED BY THE RETAILER OR THAT IT WILL NOT BE
CONSIDERED AS AN ELEMENT IN THE PRICE TO THE CONSUMER, OR IF ADDED,
THAT IT OR ANY PART THEREOF WILL BE REFUNDED." 

FN4  SECTION 13 OF THE FEDERAL FARM LOAN ACT (39 STAT. 360, 372)
GIVES FEDERAL LAND BANKS THE POWER "TO ACQUIRE AND DISPOSE OF  ...
PARCELS OF LAND ACQUIRED IN SATISFACTION OF DEBTS OR PURCHASED AT SALES
UNDER JUDGMENTS, DECREES, OR MORTGAGES HELD BY IT." 

FN5  OWEN T. OWEN WAS NAMED AS THE ORIGINAL DEFENDANT.  HE RESIGNED
THE OFFICE OF TAX COMMISSIONER ON DECEMBER 26, 1938.  HIS SUCCESSOR,
RESPONDENT GRAY, WHO TOOK OFFICE ON MAY 18, 1939, WAS SUBSTITUTED BY
ORDER OF THIS COURT ON MAY 26, 1941. 

FN6  THE COMMITTEE REPORTS EMPHASIZE THE TAX EXEMPT CHARACTER OF THE
FARM LOAN BONDS.  S. RPT.  NO. 144, 64TH CONG., 1ST SESS., P. 7; H.
RPT.  NO. 630, 64TH CONG., 1ST SESS., P. 8; H.R. DOC. NO. 494, 64TH
CONG., 1ST SESS., P. 11.  THE LENGTHY DEBATES IN THE SENATE OVER THE
CONSTITUTIONALITY OF SEC. 26 MAY BE EXPLAINABLE IN PART ON THE GROUND
THAT THE BROAD EXEMPTION THEREBY CREATED WOULD DEPRIVE THE STATES OF A
LARGE SOURCE OF POTENTIAL REVENUE.  SEE 53 CONG. REC. 6851-6854, 6961
6970, 7245-7247, 7305-7318, 7372-7378. 

FN7  MOST ENLIGHTENING IS THE RECENT AMENDMENT (ACT OF JUNE 10, 1941,
C. 190, 55 STAT. 248) TO SEC. 10 OF THE RECONSTRUCTION FINANCE
CORPORATION ACT (47 STAT. 5, 9), WHICH DECLARES THAT EXEMPTION INCLUDES
SALES TAXES.  THE COMMITTEE REPORTS MAKE IT CLEAR THAT CONGRESS SOUGHT
ONLY TO CONFIRM ITS ORIGINAL UNDERSTANDING OF THE SCOPE OF THE
EXEMPTION BY THIS AMENDMENT.  H. RPT.  NO. 514, 77TH CONG., 1ST SESS.,
P. 2; S. RPT.  NO. 292, 77TH CONG., 1ST SESS., P. 2.  SEE ALSO 87 CONG.
REC. 4255-4256, 4616, 4626-4629(PAMPH.). 

WHEN CONGRESS MOVED TO AVOID THE EFFECT OF OUR DECISION IN BALTIMORE
NATIONAL BANK V. STATE TAX COMMISSION, 297 U.S. 209, THAT THE
RECONSTRUCTION FINANCE CORPORATION WAS TAXABLE ON ITS NATIONAL BANK
SHARES, THE COMMITTEE REPORTS EXPLAIN THAT SEC. 10 "WAS INTENDED TO
GIVE AS WIDE IMMUNITY AS POSSIBLE TO THE FUNCTIONS AND ACTIVITIES OF
THE CORPORATION."  H. RPT.  NO. 1995, 74TH CONG., 2D SESS., PP. 1-2; H.
RPT.  NO. 2199, 74TH CONG., 2D SESS.; S. RPT.  NO. 1545, 74TH CONG., 2D
SESS. 

SEE ALSO THE COMMITTEE REPORT ON THE FEDERAL RESERVE ACT, IN WHICH
THE STANDARD EXEMPTION CLAUSE FIRST APPEARED, H. RPT.  NO. 69, 63D
CONG., 1ST SESS., P. 39, AND THE REPORT ON THE BILL CREATING THE
FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION.  H. RPT.  NO. 1922, 73D
CONG., 2D SESS., P. 4. 

FN8  SEC. 6, 39 STAT. 360, 365. 

FN9  SEC. 5, 39 STAT. 360, 364.  SEC. 13, 39 STAT. 360, 372. 

FN10  SEC. 13, 39 STAT. 360, 372. 

FN11  SEC. 7, 39 STAT. 360, 365. 

FN12  SEE ALSO OWENSBORO NATIONAL BANK V. OWENSBORO, 173 U.S. 664,
667, 668; COLORADO NATIONAL BANK V. BEDFORD, 310 U.S. 41, 50, 51. 

FN13  SEC. 18, 39 STAT. 360, 375. 

FN14  SEE ALSO R.F.C. V. MENIHAN CORP., 312 U.S. 81, 83. 

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















UNION PACIFIC R. CO. V. U.S., 313 U.S. 450 


NO. 594.  ARGUED APRIL 9, 10, 1941.  - DECIDED JUNE 2, 1941.  - 32
F.SUPP.  917, AFFIRMED WITH MODIFICATION. 


1.  THE INTERSTATE COMMERCE ACTS CONDEMN FAVORITISM AMONG SHIPPERS,
HOWEVER BROUGHT ABOUT.  P. 462. 

2.  UNDER SEC. 1 OF THE ELKINS ACT, WHICH FORBIDS "ANY PERSON,
PERSONS OR CORPORATION" TO GIVE OR RECEIVE ANY CONCESSION "IN RESPECT
TO TRANSPORTATION" IN INTERSTATE COMMERCE, AND WHICH PROVIDES THAT ANY
PERSON, "WHETHER CARRIER OR SHIPPER," WHO GIVES OR RECEIVES SUCH A
CONCESSION, IS GUILTY OF A MISDEMEANOR, PAYMENT OF A BONUS TO A
PROSPECTIVE SHIPPER TO INDUCE HIM TO LOCATE ON A CARRIER'S LINE IS
UNLAWFUL, THOUGH MADE BY A PERSON WHO IS NEITHER A CARRIER NOR A
SHIPPER, IF IT BE A PAYMENT "IN RESPECT TO TRANSPORTATION."  P. 462. 

THE WORDS "WHETHER CARRIER OR SHIPPER" WERE ADDED TO SEC. 1 OF THE
ELKINS ACT BY THE HEPBURN ACT TO MAKE CLEAR THAT THE PHRASE "ANY
PERSON, PERSONS, OR CORPORATION" INCLUDES SHIPPERS AS WELL AS CARRIERS;
THEY DID NOT RESTRICT THE ORDINARY MEANING OF THE WORDS "ANY PERSON." 

3.  ACTION BY ANY PERSON TO BRING ABOUT DISCRIMINATION IN RESPECT TO
INTERSTATE TRANSPORTATION BY A CARRIER SUBJECT TO THE INTERSTATE
COMMERCE ACTS, IS UNLAWFUL UNDER THE ELKINS ACT.  P. 463. 

4.  A CITY, UNDER THE DOMINATING INFLUENCE AND WITH THE FINANCIAL
ASSISTANCE OF AN INTERSTATE CARRIER SEEKING COMPETITIVE ADVANTAGES,
ESTABLISHED A NEW TERMINAL MARKET FOR FOODSTUFFS, ON LAND OWNED BY THE
CITY ON THE CARRIER'S LINE.  IN ORDER TO SECURE TENANTS FOR THIS
MARKET, CARRIER AND CITY SOUGHT TO OBTAIN, AND OBTAINED, AGREEMENTS
WITH DEALERS (INTERSTATE SHIPPERS) WHO MARKETED SUCH PRODUCE IN A
NEARBY MUNICIPALITY TO MOVE TO THE NEW MARKET, UNDER THE STIMULUS OF
CONCESSIONS OFFERED TO THEM BY THE CITY ALONE, IN THE WAY OF RENTAL
REDUCTIONS AND CASH PAYMENTS, WHICH WERE CHARACTERIZED AS COMPENSATION
FOR THEIR LOSSES IN MOVING, BUT WHICH IN SOME CASES WERE EXCESSIVE. 
THE UNITED STATES, AT THE REQUEST OF THE INTERSTATE COMMERCE
COMMISSION, FILED A BILL TO ENJOIN.  HELD: 

(1)  THAT THE CONCESSIONS WERE "IN RESPECT TO TRANSPORTATION" AND
CONTRARY TO SEC. 1 OF THE ELKINS ACT.  P. 464. 

(2)  WHILE IT IS THE RESULT AND NOT THE PURPOSE WHICH DETERMINES THE
ILLEGAL CHARACTER OF ADVANTAGES GRANTED SHIPPERS, WHEN THERE IS A
PURPOSE OR PLAN FOR SECURING TRAFFIC, DEVELOPED COOPERATIVELY BY A
CARRIER AND OTHERS, THE PURPOSE MAKES CLEAR THAT THE CONCESSIONS
OFFERED ARE IN RESPECT TO TRANSPORTATION.  P. 467. 

(3)  THE INJUNCTION SHOULD REQUIRE THAT RATES TO DEALERS FOR SPACE IN
THE NEW MARKET SHALL BE THE FAIR RENTAL VALUE OF THE FACILITIES
LEASED.  P. 471. 

5.  CRITERIA OF "FAIR RENTAL VALUE."  P. 473. 

UNION PACIFIC RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MISSOURI. 

APPEAL FROM A DECREE OF THE DISTRICT COURT ENJOINING VIOLATION OF
PROHIBITIONS OF THE INTERSTATE COMMERCE ACTS IN RESPECT OF
DISCRIMINATORY CONCESSIONS TO SHIPPERS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL INVOLVES THE LEGALITY, UNDER THE ELKINS ACT, OF
APPELLANTS' ACTIVITIES AND COURSE OF CONDUCT WITH RESPECT TO THE NEW
FOOD TERMINAL AT KANSAS CITY, KANSAS.  THAT CITY AND KANSAS CITY,
MISSOURI, ARE BOTH PART OF A DISTRICT KNOWN AS GREATER KANSAS CITY,
WHICH FOR OVER THREE-QUARTERS OF A CENTURY HAD BEEN SERVED BY A PRODUCE
MARKET LOCATED IN KANSAS CITY, MISSOURI.  IN 1937 THE UNION PACIFIC
RAILROAD, ACTING UPON THE SUGGESTION OF TWO PROMOTERS, DEOREO AND FEAN,
FORMULATED A PLAN FOR THE CONSTRUCTION OF A NEW MARKET IN KANSAS CITY,
KANSAS.  THE UNION PACIFIC IN TURN INDUCED THE CITY OF KANSAS CITY,
KANSAS, TO UNDERTAKE THE DEVELOPMENT OF SUCH A MARKET, WHICH THE CITY
WAS TO CONSTRUCT, OPERATE AND OWN.  UNION PACIFIC BECAME INTERESTED IN
THE DEVELOPMENT IN ORDER TO INCREASE THE VOLUME OF ITS TRAFFIC; FOR,
UNLIKE THE SITUATION IN THE MISSOURI MARKET, IT WAS, WITH A MINOR
EXCEPTION, THE ONLY RAILROAD WITH TRACKS SERVING THE PROPOSED KANSAS
SITE.  BECAUSE BUSINESS IN THE GREATER KANSAS CITY AREA WAS BELIEVED
INSUFFICIENT TO SUPPORT A SPLIT MARKET, PARTLY IN KANSAS AND PARTLY IN
MISSOURI, THE PLAN INCLUDED TAKING STEPS TO PERSUADE DEALERS ON THE
MISSOURI SIDE TO MOVE TO KANSAS.  THESE NEGOTIATIONS WILL APPEAR MORE
FULLY BELOW, BUT IN GENERAL THEY CONTEMPLATED CERTAIN CONCESSIONS AND
FREE RENTS BY THE CITY OF KANSAS CITY, KANSAS, TO THOSE DEALERS WHO
DECIDED TO MAKE THE TRANSFER.  OSTENSIBLY THIS WAS TO COMPENSATE THE
DEALERS FOR THEIR COSTS OF REMOVAL, BUT ACTUALLY, AT LEAST IN SOME
INSTANCES, IT WENT SOMEWHAT BEYOND.  THROUGHOUT THE PROMOTION,
FINANCING AND LEASING OF THE NEW MARKET FACILITIES, UNION PACIFIC TOOK
A LEADING AND DOMINANT PART.  THE MARKET OPENED FOR OPERATION ON
DECEMBER 4, 1939. 

ON DECEMBER 29, 1939, AT THE REQUEST OF THE INTERSTATE COMMERCE
COMMISSION, THE GOVERNMENT FILED A BILL TO ENJOIN THE UNION PACIFIC,
THE CITY OF KANSAS CITY, KANSAS, CERTAIN OF THEIR OFFICERS AND AGENTS,
AND THIRTY-THREE PRODUCE DEALERS, FROM VIOLATING THE INTERSTATE
COMMERCE ACT, 49 U.S.C. SEC. 1 ET SEQ., AND THE ELKINS ACT, 49 U.S.C.
SECS. 41-45, WHICH PROHIBIT REBATES, CONCESSIONS AND DISCRIMINATIONS IN
RESPECT TO THE TRANSPORTATION OF PROPERTY BY RAILROAD IN INTERSTATE
COMMERCE.  FN1  UNDER THE PROVISIONS OF SEC. 3 OF THE ELKINS ACT,  FN2
FOUR OTHER RAILROADS AND THE CITY OF KANSAS CITY, MISSOURI, WERE
PERMITTED TO INTERVENE AS PARTIES PLAINTIFF.  THE DISTRICT COURT ISSUED
A TEMPORARY RESTRAINING ORDER, HELD HEARINGS, AND ON APRIL 10, 1940,
GRANTED A TEMPORARY INJUNCTION.  AFTER FURTHER HEARINGS A PERMANENT
INJUNCTION WAS ENTERED ON JULY 13.  THE APPEAL COMES DIRECT TO THIS
COURT BY VIRTUE OF THE EXPEDITING ACT, 49 U.S.C. SEC. 45, UNDER SEC.
238(1) OF THE JUDICIAL CODE.  FN3 

THE FACTS SET FORTH IN THE FINDINGS AND OPINION OF THE DISTRICT
COURT, 32 F.SUPP.  917, TOGETHER WITH THE SUPPORTING RECORD REFERENCES
SPECIFIED BY THE DISTRICT JUDGE, GIVE A CLEAR STATEMENT OF THE ORIGIN
AND DEVELOPMENT OF THE KANSAS CITY, KANSAS, PROJECT: 

APPELLANTS DEOREO AND FEAN, BEFORE 1937, HAD PROMOTED VARIOUS
METROPOLITAN TERMINALS WITH WHOLESALE PRODUCE MARKET AND RAIL
FACILITIES.  IN DECEMBER, 1936, THEY SUGGESTED TO UNION PACIFIC THE
FEASIBILITY OF SUCH A TERMINAL TO BE SERVED BY ITS LINE AT GREATER
KANSAS CITY, AND A PLAN WAS SOON FORMULATED FOR THE CONSTRUCTION OF
FACILITIES ON THE PUBLIC LEVEE, PROPERTY OF KANSAS CITY, KANSAS; UNION
PACIFIC'S AIM WAS TO INCREASE ITS TRAFFIC AND REVENUES FROM PERISHABLE
FOOD PRODUCTS.  THE PLAN CONTEMPLATED THAT OWNERSHIP OF THE TERMINAL BE
VESTED IN THE CITY, WHICH WOULD BE ELIGIBLE FOR A PWA GRANT FROM THE
UNITED STATES TO COVER PART OF THE CONSTRUCTION COSTS.  A FURTHER
CONSIDERATION WAS THAT A CITY-OWNED MARKET WOULD BE TAX-FREE, AND THUS
ABLE TO OFFER DEALERS THE INDUCEMENT OF ESPECIALLY LOW RENTALS.  UNION
PACIFIC PRESENTED ENGINEERING AND COST ESTIMATES TO OFFICIALS OF THE
CITY OF KANSAS CITY, KANSAS, WHO BECAME INTERESTED IN THE PROJECT AND
DETERMINED THAT PLANS SHOULD GO FORWARD.  THEREAFTER, UNION PACIFIC AND
THE CITY PARTICIPATED JOINTLY IN THE PROMOTION AND FINANCING OF THE
TERMINAL; AND THE COURT BELOW FOUND AFTER A CAREFUL REVIEW OF THE
EVIDENCE THAT UNION PACIFIC TOOK "A LEADING AND DOMINANT PART."  UNION
PACIFIC SUGGESTED THE PLAN THAT FINANCING BE ACCOMPLISHED BY A PWA
GRANT AND BY REVENUE BONDS OF THE CITY, SECURED ONLY BY REVENUE FROM
THE TERMINAL AND OTHER LEVEE PROPERTY.  UNION PACIFIC SUGGESTED THAT
THE CITY MAKE DEOREO AND FEAN EXCLUSIVE LEASING AGENTS OF THE TERMINAL
FOR A PERIOD OF TEN YEARS; WHEN THIS CONTRACT WAS DISAPPROVED BY PWA
OFFICIALS, THE TWO PROMOTERS WERE PERSUADED TO CONSENT TO ITS
CANCELLATION, AND UNION PACIFIC LATER CAUSED SUBSTANTIAL PAYMENTS TO BE
MADE TO THEM BY ITS SUBSIDIARY, THE KANSAS CITY INDUSTRIAL LAND
COMPANY.  THE CITY'S FIRST APPLICATION FOR A PWA GRANT, WHICH IT
PREPARED WITH UNION PACIFIC'S ASSISTANCE, WAS DENIED, BUT A LATER
APPLICATION FOR $1,710,000 WON APPROVAL IN OCTOBER, 1938.  THIS
SUPPLIED 45% OF THE COST OF STRUCTURES THE CITY WAS TO BUILD; THE
REMAINING 55% WAS TO BE OBTAINED BY SELLING REVENUE BONDS TO INVESTMENT
BANKERS.  UNION PACIFIC HELPED THE CITY SECURE STATE LEGISLATION
AUTHORIZING THE BONDS; THE BANKERS, HOWEVER, DECLINED TO PURCHASE THEM
WHEN UNION PACIFIC REFUSED TO GUARANTEE INCOME SUFFICIENT TO MEET FIXED
CHARGES.  UNION PACIFIC THEN DECIDED TO BUY THE BONDS FOR ITSELF,
PAYING $3,000,000 PLUS ACCRUED INTEREST; $1,033,000 OF THIS WAS USED TO
RETIRE OUTSTANDING REVENUE BONDS, AND THE REMAINDER MADE AVAILABLE FOR
CONSTRUCTION OF THE TERMINAL.  THE BONDS, WHICH WERE HELD VALID IN
STATE EX REL. BECK V. KANSAS CITY, 149 KAN. 252; 86 P.2D 476, ARE
SECURED SOLELY BY THE REVENUES ACCRUING FROM THE TERMINAL AND OTHER
PROPERTY ON THE PUBLIC LEVEE; THEY CONSTITUTE NO CLAIM AGAINST THE
CITY'S GENERAL REVENUES, AND THE DISTRICT COURT FOUND THAT THEY "WERE
AND ARE SPECULATIVE AND WERE NOT THEN SALABLE IN THE ORDINARY COURSE OF
THE COMMERCIAL INVESTMENT BUSINESS." 

UNION PACIFIC ALSO CAUSED ITS OFFICERS, EMPLOYEES AND AGENTS, AND
THOSE OF ITS SUBSIDIARY, THE KANSAS CITY INDUSTRIAL LAND COMPANY, AND
ITS AFFILIATE, THE PACIFIC FRUIT EXPRESS COMPANY, TO RENDER VARIOUS
SERVICES RELATED TO THE PROMOTIONAL, LEASING AND FINANCING ACTIVITIES;
IT ADVANCED MONEY FOR FINANCING PRELIMINARY EXPENSES; AND TOGETHER WITH
THE CITY IT SUPERVISED THE ACTUAL CONSTRUCTION.  THE TERMINAL AS
COMPLETED CONSISTS OF RAILROAD FACILITIES, OWNED BY UNION PACIFIC, FOR
WHICH IT SPENT $603,000; AND THE CITY'S WHOLESALE PRODUCE MARKET, WITH
A COLD STORAGE PLANT, PRODUCE DEALERS' BUILDINGS, A FARMERS' MARKET,
AND SOME TERMINAL TRACKAGE, ALL CONSTRUCTED WITH FUNDS DERIVED FROM THE
PWA GRANT AND THE REVENUE BONDS SOLD TO UNION PACIFIC.  FN4  THE FOOD
TERMINAL IS A UNITARY ENTERPRISE, WITH THE MARKET AND THE RAILROAD
FACILITIES INTEGRAL PARTS OF A UNIFIED WHOLE.  UNION PACIFIC HAS THE
ONLY TRACKS REACHING THE TERMINAL, EXCEPT THAT THE MISSOURI PACIFIC
JOINTLY SERVES THE COLD-STORAGE PLANT. 

ACTIVE SOLICITATION OF THE MISSOURI DEALERS TO MOVE TO KANSAS BEGAN
IN JUNE, 1937.  AS EARLY AS AUGUST, 1937, UNION PACIFIC CONTEMPLATED
THE NECESSITY OF GIVING INDUCEMENTS TO DEALERS, EITHER BY MAKING DIRECT
PAYMENTS OR BY BUYING FROM THEM "UNWANTED PROPERTIES."  IN THE SUMMER
AND FALL OF THAT YEAR, DEOREO AND FEAN INDUCED FIVE OF THE MISSOURI
DEALERS TO SERVE ON A COMMITTEE FOR THE PROMOTION OF THE KANSAS
TERMINAL, AGREEING TO PAY EACH OF THEM $5000 "IN CONSIDERATION OF THE
SERVICES RENDERED  ...  AND THE OCCUPANCY OF THE FOOD TERMINAL" AS
TENANT.  BY AUGUST, 1938, UNION PACIFIC'S EMPLOYEES AND AGENTS HAD
NEGOTIATED WITH OTHER DEALERS WITH RESPECT TO CASH PAYMENTS AND OTHER
INDUCEMENTS.  AS OPPOSITION DEVELOPED ON THE MISSOURI SIDE, THE
DISTRICT COURT FOUND THAT THE CAMPAIGN FOR ENLISTMENT OF THE MISSOURI
DEALERS BECAME "OPEN AND INTENSE."  UNION PACIFIC, HOWEVER, WAS ANXIOUS
TO AVOID VIOLATING THE ELKINS ACT, AND SOUGHT THE ADVICE OF ITS LEGAL
DEPARTMENT, WHICH RENDERED AN OPINION THAT PAYMENTS MADE BY THE CITY TO
DEALERS WOULD BE LAWFUL.  WITH THE ASSISTANCE OF A COMMITTEE OF
PROMINENT CITIZENS, THE CITY WAS PERSUADED TO UNDERTAKE SUCH PAYMENTS;
IN DECEMBER, 1939, IT PASSED RESOLUTION 11275 AUTHORIZING USE OF THE
PUBLIC LEVEE REVENUE FUND FOR SETTLEMENTS EITHER WITH CASH OR CREDITS
ON RENTAL, OR BOTH, TO COVER COSTS INCURRED BY PROSPECTIVE TENANTS,
"DUE TO RENTAL OBLIGATIONS ON PRESENT PLACES OF BUSINESS AND COSTS DUE
TO ABANDONMENT OF EQUIPMENT AND FACILITIES NOW LOCATED IN, AND THE GOOD
WILL OF SAID ESTABLISHED PLACES OF BUSINESS."  THE LEGALITY UNDER STATE
LAW OF SUCH PAYMENTS BY THE CITY WAS PROMPTLY ESTABLISHED IN A TEST
SUIT AT LEAST PARTIALLY DIRECTED BY UNION PACIFIC.  STATE EX REL.
PARKER V. KANSAS CITY, 151 KAN. 1 AND 2; 97 P.2D 104; 98 P.2D 101. 

THE CITY, ALTHOUGH NOW WILLING TO MAKE PAYMENTS TO PROSPECTIVE
TENANTS WHERE NECESSARY, WAS LACKING FUNDS.  IN ARRANGING FOR
REFRIGERATOR SERVICE AT THE MARKET, UNION PACIFIC CONTRACTED TO BUY ITS
ENTIRE KANSAS CITY AND OMAHA ICE REQUIREMENTS FROM THE CITY ICE & FUEL
COMPANY.  THIS COMPANY LEASED THE MARKET'S COLD-STORAGE UNIT FOR
FIFTEEN YEARS AT $37,500 PER YEAR; UNION PACIFIC NOW URGED THE COMPANY
TO PAY THE CITY $80,000 AS ADVANCE RENT.  THE CITY ICE & FUEL COMPANY
DID THIS AND ALSO, AT UNION PACIFIC'S AND THE CITY'S SUGGESTION,
DEPOSITED $25,000 WITH A BANK AS COLLATERAL FOR PROPOSED UNSECURED AND
INADEQUATELY SECURED LOANS TO MISSOURI PRODUCE DEALERS, ALTHOUGH SUCH
LOANS, WHILE OFFERED, WERE NEVER ACTUALLY MADE. 

IN THE NEGOTIATIONS WITH THE MISSOURI DEALERS, UNION PACIFIC'S
REPRESENTATIVES TOOK AN ACTIVE PART.  THE DISTRICT COURT FOUND THAT IT
AND THE CITY ACTED TOGETHER TO INDUCE PROSPECTIVE TENANTS "BY MEANS OF
OFFERS, AGREEMENTS, PAYMENTS, AND GIFTS TO SUCH DEFENDANT PRODUCE
DEALERS AND OTHER PRODUCE DEALERS OF FREE RENTS, REDUCED RENTS, FREE
REFRIGERATION, CASH PAYMENTS AND RENTAL CREDITS PURPORTING TO BE FOR
THE PURPOSE OF PAYING SUCH PRODUCE DEALERS' COST OF REMOVAL FROM KANSAS
CITY, MISSOURI  ...  AND THE VALUE OF FURNITURE AND FIXTURES IN THEIR
KANSAS CITY, MISSOURI, PLACES OF BUSINESS AND THE LIABILITY ON
UNEXPIRED LEASES IN KANSAS CITY, MISSOURI, BUT IN SOME CASES IN EXCESS
OF ANY SUCH COSTS, VALUES OR LIABILITIES."  THE OPINION ADDS THAT "THE
TESTIMONY OF SEVERAL DEALERS WITH WHOM NEGOTIATIONS WERE CONDUCTED
WARRANTS THE CONCLUSION THAT THE PRIMARY OBJECTIVE OF THOSE WHO
CONDUCTED OR TOOK PART IN THE NEGOTIATIONS WAS NOT THE ASCERTAINMENT OF
THE LOSS OR EXPENSE TO THE DEALER OF MOVING, BUT WAS THE ASCERTAINMENT
OF THE AMOUNT NECESSARY TO BE PAID TO BRING ABOUT THE MOVE." 

THE RECORD FULLY SUPPORTS THE TRIAL COURT'S CONCLUSION THAT THE
CONCESSIONS OFFERED WERE NOT CONFINED TO FAIR COMPENSATION FOR THE
COSTS OF REMOVAL, AS A BRIEF REVIEW OF THE INSTANCES SPECIFIED BY THE
JUDGE WILL SHOW.  MALLIN PRODUCE COMPANY, THE LARGEST APPLE CONCERN IN
THE MARKET, CLAIMED $17,300 AS ITS COSTS OF REMOVAL, $7,300 FOR MOVING
ITS APPLES, AND $10,000 AS THE "VALUE OF EXISTING LEASE TO BE
ABANDONED."  HOWEVER, MALLIN MADE NO CLAIM THAT HE HAD ANY OBLIGATIONS
UNDER HIS MISSOURI LEASE; FN5  HE MERELY SAID THAT HE HAD BEEN ASSURED
BY HIS LANDLORD THAT HE COULD CONTINUE THE LEASE AS LONG AS HE LIVED,
AND THAT HE WOULD CONTINUE TO LEASE THE PROPERTY "IN ORDER TO KEEP A
COMPETITOR FROM SECURING IT."  UNION PACIFIC'S REPRESENTATIVE
NEVERTHELESS OFFERED HIM $15,000 FROM THE CITY, AND THEN RAISED THE
OFFER TO $20,000 WHEN MALLIN AGREED TO TAKE TWO UNITS INSTEAD OF ONE AT
THE TERMINAL.  THE O.C. EVANS COMPANY, WHICH MADE NO STATEMENT OF THE
AMOUNT OF ITS MISSOURI INVESTMENT, WAS OFFERED $5,000; WHEN IT DEMANDED
$10,000, THE OFFER WAS INCREASED TO $7,000.  THE NEGOTIATORS INCREASED
CHERRITO'S CLAIM FROM $900 TO $1,450 BY RAISING THE COST FIGURES FOR
HIS MISSOURI FIXTURES ABOVE THE AMOUNTS HE HAD SPECIFIED.  GARRETT
HOLMES & COMPANY, WHICH HAD CLAIMED ONLY ABOUT $20,000 IN THE SUMMER OF
1939 WITHOUT PRESENTING DEFINITE FIGURES, IN DECEMBER DEMANDED AN
ADJUSTMENT OF $35,000, AND ACCEPTED $30,500 IN CASH AND ONE YEAR'S FREE
REFRIGERATION.  SETTLEMENT WAS REACHED ON A CLAIM FOR UNEXPIRED RENTALS
OF $15,000 AND COST OF IRREMOVABLE BUSINESS FIXTURES, $20,000.  LITMAN
PRODUCE COMPANY WAS GIVEN $15,000 IN CASH AND ADVANCE RENT AFTER
ASSERTING AN OBLIGATION TO PAY SIX YEARS' RENT ON AN UNEXPIRED MISSOURI
LEASE, WHEN IN FACT THE LEASE WAS TO EXPIRE IN A FEW MONTHS AND MERELY
CONTAINED AN OPTION TO RENEW FOR FOUR YEARS; LITMAN HAD NOT EXERCISED
THE OPTION, THOUGH AFTER THE INJUNCTION HE ENTERED INTO A NEW LEASE
WITH HIS MISSOURI LESSOR.  ROBINSON WAS ALLOWED TO PUT IN A CLAIM FOR
$600 FOR SEVERAL UNEXPIRED MONTHS OF AN ASSERTED SIX MONTHS' LEASE,
WHEN THE TENANCY WAS IN FACT ON A MONTH-TO-MONTH BASIS.  WINNICK
BROTHERS, A BANANA FIRM, WAS ALLOWED MORE THAN $7,000 AS THE
UNAMORTIZED COST OF FIXTURES AND EQUIPMENT THAT HAD APPARENTLY COST
THEM LESS THAN A THOUSAND DOLLARS.    THE PROPOSED CASH PAYMENTS TO
DEALERS TOTALLED $111,000, AND THE PROPOSED CREDITS ON RENT MORE THAN
$30,000.  WHEN NEGOTIATIONS WITH A DEALER RESULTED IN A TENTATIVE
UNDERSTANDING OR AGREEMENT, HE WOULD BE TOLD THAT UNION PACIFIC COULD
NOT PAY HIM BUT THAT THE MATTER WOULD BE SUBMITTED TO THE CITY.  THE
DISTRICT COURT'S INJUNCTION INTERVENED BEFORE MORE THAN ONE OF THE
ADJUSTMENTS HAD BEEN FORMALLY AGREED TO BY THE CITY BOARD AND NONE OF
THESE PAYMENTS HAD ACTUALLY BEEN MADE. 

IN ADDITION TO THESE CIRCUMSTANCES, THE STANDARD FORM LEASE CONTAINED
EXPRESS PROVISIONS FOR FREE RENTS AND REDUCED RENTS.  THE STANDARD
RENTAL ADOPTED WAS $150 PER MONTH PER UNIT, BUT FOR THE FIRST THREE
MONTHS AFTER THE OFFICIAL COMPLETION DATE ONLY $50 WAS CHARGED. 
MOREOVER, THE TERMINAL OPENED FOR BUSINESS ON DECEMBER 4, 1939; DEALERS
BEGAN MOVING IN THEN AND ENJOYED RENT-FREE OCCUPATION UNTIL FEBRUARY 1,
1940, WHICH WAS ANNOUNCED AS THE OFFICIAL COMPLETION DATE. 

UNION PACIFIC ALSO MADE AVAILABLE A CERTAIN AMOUNT OF FREE
ADVERTISING BY INTERVIEWING THE TERMINAL'S TENANTS ON ITS RADIO PROGRAM
AND ALLOWING THEM TO DESCRIBE THE KIND AND QUALITY OF THEIR PRODUCE. 

THROUGHOUT ALL PHASES OF THESE ACTIVITIES, UNION PACIFIC'S PRINCIPAL
AND COMPELLING MOTIVE HAS BEEN TO DIVERT PRODUCE TRAFFIC FROM OTHER
RAILROADS TO ITS OWN.  BY TARIFFS FILED WITH THE INTERSTATE COMMERCE
COMMISSION, CHARGES FOR HANDLING ARE COLLECTED BY THE UNION PACIFIC FOR
CARS ORIGINATING ON OR DESTINED TO OTHER LINES.  IF THE MARKET SHIFTS
FROM MISSOURI TO KANSAS, IT IS ESTIMATED THAT UNION PACIFIC STANDS TO
GAIN TRAFFIC REVENUES OF SEVERAL HUNDRED THOUSAND DOLLARS ANNUALLY FROM
THE DEVELOPMENT OF THE MARKET, DUE LARGELY TO THE FACT THAT A RAILROAD
ON WHOSE LINE A SHIPPER IS LOCATED ENJOYS A SUBSTANTIAL ADVANTAGE IN
SOLICITING COMPETITIVE TRAFFIC, AND COMPARABLE LOSSES MAY BE REASONABLY
EXPECTED BY THE RAILROADS NOW SERVING THE MISSOURI MARKET. 

THE APPLICABLE STATUTES.  THE ELKINS ACT IS A PART OF THE FEDERAL
STATUTORY SYSTEM FOR THE REGULATION OF INTERSTATE CARRIERS OF
COMMERCE.  AS WITH OTHER PORTIONS OF THAT SYSTEM A CHIEF PURPOSE FOR
ITS ENACTMENT WAS TO ELIMINATE REBATES, CONCESSIONS OR DISCRIMINATIONS
FROM THE HANDLING OF COMMERCE, TO THE END THAT PERSONS AND PLACES MIGHT
CARRY ON THEIR ACTIVITIES ON AN EQUAL BASIS.  WITH THE ADOPTION OF
PROHIBITION AGAINST OPEN RATE-CUTTING, VARIOUS DEVICES WERE RESORTED
TO.  FN6  THE RAILROADS SOUGHT CONTROL OVER COMPETITORS TO ESCAPE RATE
WARS AND, DESPITE ABHORRENCE OF MONOPOLIES EVEN IN THE UTILITY FIELD,
STRONG IN THE EARLY YEARS OF THIS CENTURY, SUCH CONCENTRATIONS OF
CARRIER CONTROL WERE THOUGHT TO HAVE ONE ADVANTAGE AT LEAST, THE
REDUCTION OF DISCRIMINATORY PRACTICES.  FN7  CONCEALMENT OF THE RECEIPT
OR PAYMENT OF REBATES WAS MADE MANIFEST.  STRENGTHENING OF THE
ENFORCEMENT PROVISIONS WAS SOUGHT.  THIS EFFORT FINALLY CULMINATED IN
THE LEGISLATIVE AUTHORIZATION OF THE INJUNCTION AS THE SIMPLEST AND
MOST SUMMARY LEGAL INSTRUMENT TO DESTROY DISCRIMINATION.  FN8  THE
COURTS HAVE FOUND THE STATUTES EFFECTIVE TO ACCOMPLISH THE DESTRUCTION
OF DISCRIMINATORY PRACTICES, WHATEVER THEIR FORM.  VIOLATION OF THE
COMMERCE ACTS THROUGH RECEIPT OF ADVANTAGES IS TO BE TESTED BY ACTUAL
RESULTS, NOT BY INTENTION.  FN9  ANY AND ALL MEANS TO ACCOMPLISH THE
PROHIBITED END ARE BANNED.  FN10  WE RECENTLY SAID THAT UNDER
COMPETITIVE CONDITIONS EXISTING IN THE NEW YORK AREA THE ACTION OF THE
COMMISSION IN ATTACKING DISCRIMINATION BY AN ORDER AGAINST FURNISHING
NON-TRANSPORTATION SERVICES BELOW COST TO THE CARRIER WAS VALID,
ALTHOUGH THERE WAS NO SHOWING THAT THE CHARGES WERE BELOW FAIR VALUE. 
FN11 CONTRIBUTION TO A SHIPPER'S CONSTRUCTION COST IS FORBIDDEN.  FN12
IN FACT, FAVORITISM WHICH DESTROYS EQUALITY BETWEEN SHIPPERS, HOWEVER
BROUGHT ABOUT, IS NOT TOLERATED.  OF COURSE, NO PARTY TO THIS APPEAL
DISPUTES THIS BROAD PRINCIPLE. 

DIFFICULTIES IN STATUTORY CONSTRUCTION ARISE UPON FURTHER ANALYSIS OF
THE STATUTE.  SECTION 1, QUOTED IN NOTE 1, HAS A PROVISION MAKING IT
UNLAWFUL FOR ANY PERSON TO GIVE OR RECEIVE ANY CONCESSION IN RESPECT TO
TRANSPORTATION.  A SUBSEQUENT CLAUSE MAKES THE ACT OF GIVING OR
RECEIVING A CONCESSION A MISDEMEANOR AND PUNISHES ITS VIOLATION BY
"EVERY PERSON OR CORPORATION, WHETHER CARRIER OR SHIPPER."  OBVIOUSLY A
BONUS PAID BY A RAILWAY TO INDUCE A PROSPECTIVE SHIPPER TO LOCATE ALONG
ITS LINE WOULD BE AS MUCH A CONCESSION UNDER THE STATUTE AS A REDUCTION
IN TARIFF APPLICABLE ONLY TO THE FAVORED SHIPPER.  WE ARE OF THE
OPINION THAT SUCH A PAYMENT BY A PERSON WHO IS NOT A CARRIER, IF IT IS
A PAYMENT "IN RESPECT TO TRANSPORTATION," WOULD BE EQUALLY VIOLATIVE OF
THE SECTION IN QUESTION. 

THE FIRST PROHIBITION MAKES IT UNLAWFUL "FOR ANY PERSON OR
CORPORATION" TO GIVE OR RECEIVE THE CONCESSION.  THE APPELLANTS'
ARGUMENT THAT ONLY CARRIERS OR SHIPPERS ARE COVERED IS BASED ON THE
CLAUSE STATING THE PUNISHMENT TO BE APPLICABLE WHETHER THE ALLEGED
VIOLATOR IS "CARRIER OR SHIPPER."  SUCH AN ARGUMENT ASSUMES THAT THE
CARRIER AND SHIPPER CLAUSE RESTRICTS THE ORDINARY MEANING OF "ANY
PERSON."  NO REASON IS ADVANCED FOR SUCH A RESTRICTION.  AS HAS BEEN
SET OUT, THERE HAS BEEN A WELL-DEFINED AND CONTINUOUS PURPOSE TO
ELIMINATE PREFERENCES TO SHIPPERS FROM OUR SYSTEM OF TRANSPORTATION FOR
REASONS OF FAIRNESS AND TO AVOID RATE WARS, DETRIMENTAL TO THE
EFFICIENCY OF THE CARRIERS.  THE WORDS STRESSED BY APPELLANTS AS
RESTRICTIVE WERE ADDED BY THE HEPBURN ACT AS AN AMENDMENT TO SEC. 1 OF
THE ELKINS ACT TO MAKE CLEAR THAT THE EARLIER PHRASE "ANY PERSON,
PERSONS OR CORPORATION" INCLUDED SHIPPERS AS WELL AS CARRIERS.  FN13
IN OUR VIEW, ACTION BY ANY PERSON TO BRING ABOUT DISCRIMINATIONS IN
RESPECT TO THE TRANSPORTATION OF PROPERTY IS RENDERED UNLAWFUL BY THE
ELKINS ACT.  ANY OTHER CONCLUSION WOULD DO VIOLENCE TO A DOMINANT
PURPOSE OF CARRIER LEGISLATION. 

THIS CONCLUSION IS BUTTRESSED BY OTHER LANGUAGE IN THE ELKINS ACT AND
BY DECISIONS IN OTHER COURTS WHICH HAVE DEALT WITH THE QUESTION. 
OTHER PERSONS "AS THE COURT MAY DEEM NECESSARY" WHEN A CARRIER IS
"COMMITTING ANY DISCRIMINATIONS," AND THE COURT MAY ENFORCE ITS ORDERS
"AS WELL AGAINST THE PARTIES INTERESTED IN THE TRAFFIC" AS AGAINST THE
CARRIER.  FOR EXAMPLE, IN SPENCER KELLOGG & SONS V. UNITED STATES, 20
F.2D 459, A GRAIN ELEVATOR OWNER, WITHOUT CARRIER AFFILIATION OR
COOPERATION, WAS CONVICTED FOR SHARING ITS ALLOWANCE FOR ELEVATION
SERVICE WITH A SHIPPER.  FN14 

THE STATUTE SPECIFICALLY REQUIRES THAT THE CONCESSION GIVEN OR
RECEIVED SHALL BE "IN RESPECT TO THE TRANSPORTATION OF ANY PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE BY ANY COMMON CARRIER."  AS THE LANGUAGE
OF THE SECTION COVERS INDISPUTABLY THE CARRIER AND THE FREIGHT INVOLVED
IN MOVEMENT INTO AND OUT OF A METROPOLITAN TERMINAL MARKET,  FN15  ONLY
THE PHRASE "IN RESPECT TO THE TRANSPORTATION" REQUIRES ANALYSIS.  WHAT
HAS BEEN SAID SHOWS ITS MEANING CONNOTES MORE THAN DISCRIMINATION IN
PAYMENT OF TARIFFS.  OFFERING OR SOLICITING THE CONCESSIONS EXPLICITLY
VIOLATES THE SECTION.  SO DOES A BUILDING BONUS GRANTED ON CONDITION
THAT THE FAVORED INDUSTRY USE THE CARRIER'S FACILITIES.  FN16  THE
CONCESSIONS ARE NONE THE LESS ILLEGAL, IF MADE FOR NON-TRANSPORTATION
SERVICES,  FN17  AS LONG AS THEY RESULT IN LOWERING DIRECTLY OR
INDIRECTLY TRANSPORTATION COSTS TO A SHIPPER.  THAT OTHER INDUCEMENTS
MAY ALSO HAVE INFLUENCED THE CONCESSIONS IS NOT IMPORTANT WHEN A
MATERIALLY EFFECTIVE PURPOSE IS THE SECURING OF TRAFFIC FOR AN
INTERSTATE CARRIER.  WHERE TRAFFIC IS AN OBJECT, AND DISCRIMINATORY
ADVANTAGE THE MEANS EMPLOYED IN ATTEMPTING TO OBTAIN OR ACTUALLY
OBTAINING IT, THERE IS A VIOLATION OF THE SECTION IN RESPECT TO
TRANSPORTATION. 

VALIDITY OF THE PLAN.  APPELLANTS URGE THAT THE CITY'S ACTION IN
MAKING ARRANGEMENTS FOR PAYMENTS TO DEALERS LOCATED IN THE MISSOURI
CITY WAS TAKEN SOLELY IN FURTHERANCE OF ITS MUNICIPAL INTERESTS AND
WITHOUT INTENTION TO INFLUENCE TRAFFIC AND CONSEQUENTLY NOT "IN RESPECT
TO THE TRANSPORTATION OF PROPERTY."  IT IS POINTED OUT THAT IT IS QUITE
PERMISSIBLE AND INDEED DESIRABLE FOR A RAILROAD, LARGELY DEPENDENT AS
ITS PROSPERITY IS UPON THE PROSPERITY OF THE COMMUNITIES REACHED BY ITS
TRACKS, TO TAKE PART IN FURTHERING CIVIC DEVELOPMENT.  CERTAINLY THERE
CAN BE NO OBJECTION ON THE SCORE OF ILLEGALITY UNDER FEDERAL
TRANSPORTATION ACTS FOR A CITY, ANXIOUS TO MAKE ITS MARKET HOUSE
PROFITABLE, TO ADOPT BUSINESS PRACTICES, NORMAL FOR REAL ESTATE
OPERATORS, IF THE PRACTICES DO NOT INVOLVE DISCRIMINATIONS "IN RESPECT
TO TRANSPORTATION" BY INTERSTATE CARRIERS.  THUS IT IS UNDERSTANDABLE
THAT CITY AND RAILROAD MIGHT INDIVIDUALLY AND EVEN COOPERATIVELY WORK
HAND IN HAND TO PROMOTE THE CITY'S ECONOMIC WELFARE WITHOUT VIOLATING
THE ELKINS ACT.  BUT THE PROMOTION OF CIVIC ADVANCEMENT MAY NOT BE USED
AS A CLOAK TO SCREEN THE GRANTING OF DISCRIMINATORY ADVANTAGES TO
SHIPPERS.  CONSEQUENTLY IN THE PRESENT CASE THE THINGS DONE ARE TO BE
APPRAISED BY THE STANDARDS OF THE STATUTES, HERETOFORE EXAMINED.  FOR
THIS PURPOSE WE MAY LAY ASIDE AS OF SMALL IMPORTANCE THE ACTION OF THE
UNION PACIFIC IN ADVANCING FUNDS FOR THE EXPENSES OF AN INSPECTION TOUR
TO OTHER CITIES BY THE MISSOURI MERCHANTS, WHO WERE THUS MADE FAMILIAR
WITH MARKETS SIMILAR TO THE PROPOSED MARKET ON THE KANSAS SIDE OF THE
MISSOURI RIVER.  THE USE OF THE RAILROAD'S RADIO TIME TO ADVERTISE
SHIPPERS' AVAILABLE STOCK IN TRADE, WHILE UNLAWFUL, SEEMS TOO MINOR FOR
FURTHER COMMENT IN A SUIT TO ENJOIN DISCRIMINATIONS THROUGH CASH
BONUSES AND FREE RENT.  FURTHER, WHILE IT WOULD BE A VIOLATION OF THE
ELKINS ACT FOR A CARRIER TO OFFER A SHIPPER A CONCESSION TO BE PAID TO
THE SHIPPER BY A NON-CARRIER, WE DO NOT FIND IT NECESSARY TO REST THE
DECISION HERE UPON THE CARRIER'S ALLEGED ACTION IN OFFERING PAYMENTS TO
SHIPPERS BY THE CITY.  FOR IN THIS CASE INVALIDITY OF THE CARRIER'S
ACTION WOULD FOLLOW A FORTIORI FROM THE INVALIDITY OF THE CITY'S
ACTION.  THEREFORE WE EXAMINE THE CITY'S SITUATION. 

ENOUGH HAS HERETOFORE BEEN STATED TO SUPPORT FULLY THE CONCLUSION
THAT SOME SHIPPERS OBTAINED AGREEMENTS FROM THE CITY COMMITTEE ON
NEGOTIATIONS FOR CONCESSIONS IN RETURN FOR MOVING INTO THE NEW MARKET. 
IN DETERMINING WHETHER THE CONCESSIONS WERE IN RESPECT TO
TRANSPORTATION, THE COOPERATIVE FUNCTIONING OF RAILWAY AND CITY,
TRANSPORTATION AND MUNICIPAL OFFICERS, BECOMES SIGNIFICANT.  THE PHRASE
"IN RESPECT TO TRANSPORTATION" HAS NOT A TECHNICAL CONNOTATION.  IT
DIFFERS FROM INTENT OR PURPOSE TO AFFECT TRANSPORTATION.  IT IS BROADER
THAN "IN REDUCTION OF TARIFFS" THOUGH, AS APPEARS FROM THE ACT, IT IS
SUCH A DISCRIMINATION AS RESULTS IN TRANSPORTATION "AT A LESS RATE THAN
THAT NAMED IN THE TARIFFS  ...  OR WHEREBY ANY OTHER ADVANTAGE IS GIVEN
... "  OUR ATTENTION IS NOT CALLED TO ANY LEGISLATIVE HISTORY AS TO
THE PURPOSE OF THE INCLUSION OF THE WORDS IN THE ELKINS ACT OR AS TO
THEIR MEANING.  WE HAVE FOUND NONE.  WE ARE OF THE VIEW THAT THE PHRASE
LIMITS THE "REBATE, CONCESSION OR DISCRIMINATION" TO ADVANTAGES OR
DISADVANTAGES IN TRANSPORTATION BUT HAS NO FURTHER EFFECT.  AS THE
DISCRIMINATION IS LIMITED TO TRANSPORTATION MATTERS, NORMALLY ONE WOULD
FIND INVOLVED IN THE DISCRIMINATION NOT ONLY A USER OR PROSPECTIVE USER
OF THE FACILITIES OF THE CARRIER BUT ALSO THE CARRIER ITSELF.  THIS IS
TRUE IN THIS INSTANCE.  CARRIER AND CITY, THROUGH A COMMITTEE OF
EMPLOYEES OF EACH AND THROUGH DEOREO AND FEAN AND THEIR AIDES, WORKED
TOGETHER TO BRING INTO THE TERMINAL TENANTS WHOSE BUSINESS AS FOUND
BELOW WAS "SHIPPING INTO AND OUT OF THE FOOD TERMINAL PRODUCTS
TRANSPORTED IN INTERSTATE COMMERCE UPON WHICH THE DEALERS PAY THE
FREIGHT."  WHERE CONCESSIONS ARE OFFERED TO SUCH DEALERS BY THE CITY IN
A PLAN WORKED OUT COOPERATIVELY BY THE CITY AND CARRIER, AS HERE, THESE
CONCESSIONS ARE NECESSARILY IN RESPECT TO TRANSPORTATION.  THE UNION
PACIFIC IS CHARGED WITH THE PUBLIC DUTY OF AND IS INTERESTED IN
TRANSPORTATION.  THE PROMOTERS BROUGHT THE SCHEME FOR THE MARKET FIRST
TO THE RAILWAY COMPANY.  IT WAS IMPRESSED WITH THE POSSIBILITIES AND
WORKED EARNESTLY TO CONVINCE FIRST A FEW CITY OFFICIALS, AND THEN THE
BOARD, OF THE DESIRABILITY OF ACTION BY THE CITY.  MONEY FOR THE
PRELIMINARY EXPENSES WAS ADVANCED BY THE UNION PACIFIC.  NO OBJECTION
WAS MADE TO THE USE BY THE CITY OF PREPAID RENTS FROM THE CITY ICE &
FUEL COMPANY TO FURTHER THE REMOVAL OF THE DEALERS IN THE MANNER
"CONCEIVED AND DEVISED," IN THE WORDS OF A FINDING, BY THE UNION
PACIFIC.  THE RAILROAD WAS THE "LEADING AND DOMINANT" INFLUENCE IN THE
ENTIRE TRANSACTION.  IF THE CITY WAS NOT COMPLETELY "SUBSERVIENT TO THE
COMPETITIVE NEEDS" OF THE CARRIER, AS WE SAID OF THE WAREHOUSING
CORPORATIONS IN BALTIMORE & OHIO R. CO. V. UNITED STATES, 305 U.S. 507,
516-17, AT LEAST THE ENCOURAGEMENT AND COOPERATION GIVEN BY THE
RAILROAD WAS OF A KIND TO MAKE IT PLAIN THAT THE CITY'S ACTION LOOKED
SPECIFICALLY TOWARDS GAINING TRAFFIC FOR THE ROAD.  WHILE, AS HAS BEEN
STATED, IT IS THE RESULT AND NOT THE PURPOSE WHICH DETERMINES THE
ILLEGAL CHARACTER OF ADVANTAGES GRANTED SHIPPERS, WHEN THERE IS A
PURPOSE OR PLAN FOR SECURING TRAFFIC, DEVELOPED COOPERATIVELY BY A
CARRIER AND OTHERS, THE PURPOSE MAKES CLEAR THAT THE CONCESSIONS
OFFERED ARE IN RESPECT TO TRANSPORTATION. 

THE POWER OF THE CITY TO MAKE THE CONCESSIONS AND THE QUESTION OF
WHETHER ANY MONEY TO BE USED BY THE CITY WAS CONTRIBUTED DIRECTLY OR
INDIRECTLY BY THE UNION PACIFIC DO NOT AFFECT THIS CONCLUSION.  THE
JUDGMENT OF THE SUPREME COURT OF KANSAS IN STATE EX REL. PARKER V.
KANSAS CITY, FN18  THAT THE CITY, IN ITS PROPRIETARY CAPACITY, UNDER
KANSAS LAW HAS "AUTHORITY TO PAY SUCH SUMS AS ARE NECESSARY  ...  TO
CARRY OUT  ...  SUCH POLICIES AND TRANSACTIONS AS MAY BE TO THE BEST
INTEREST OF SAID CITY IN SECURING TENANTS  ...  FOR SAID TERMINAL" IS
NOT REVIEWABLE HERE.  BUT THE OPINIONS IN THESE KANSAS CASES DO NOT
CONSIDER OR DECIDE WHETHER THE PROPOSED PAYMENTS ARE A PART OF A PLAN
TO GRANT ADVANTAGES TO SHIPPERS CONTRARY TO THE ELKINS ACT.  EVEN IF
THE CITY'S ACTION HAD BEEN DISCUSSED FROM THAT STANDPOINT, THE RESULT
WOULD NOT CONCLUDE THIS COURT.  IT IS OUR DUTY TO DETERMINE FINALLY THE
EFFECT OF ACTS OR PLANS PLAINLY UNDER THAT FEDERAL STATUTE.  FN19  IT
IS IMPOSSIBLE, AND IN OUR VIEW IMMATERIAL, TO DETERMINE FROM THE
EVIDENCE AND FINDINGS WHETHER THE UNION PACIFIC CONTRIBUTED INDIRECTLY
TO THE FUND FOR MAKING PAYMENTS TO SHIPPERS.  THE RAILROAD OWNED A
THREE MILLION DOLLAR BOND ISSUE WHICH CARRIES A COVENANT TO APPLY ALL
REVENUES OF THE PROPERTIES INVOLVED, AFTER OPERATING EXPENSES, TO THE
BOND LIQUIDATION.  BY ACQUIESCING IN THE APPLICATION OF THE REVENUES TO
SECURE TENANTS, THE RAILWAY DID CONTRIBUTE FINANCIALLY, IF THERE WAS A
FAILURE TO EARN ENOUGH TO MEET EXPENSES.  THE ESTIMATES AS TO EARNINGS
ARE NECESSARILY UNCERTAIN.  FROM ITS FINDING THAT THE PROJECTED NET
RETURN WAS COMPENSATORY, THE DISTRICT COURT WAS APPARENTLY OF THE VIEW
THAT THE TERMINAL WOULD PAY OUT.  FN20 

INJUNCTION.  ONE PROVISION OF THE PERMANENT INJUNCTION ENTERED BY THE
DISTRICT COURT ENJOINED THE UNION PACIFIC AND KANSAS CITY, KANSAS, AND
THEIR OFFICERS OR AGENTS FROM GIVING CASH OR RENTAL CREDITS TO PRODUCE
DEALERS TO MOVE INTO OR REMAIN IN QUARTERS IN THE KANSAS CITY FOOD
TERMINAL.  FN21  THE APPELLANTS ASSIGN AS ERROR THE ACTION OF THE
DISTRICT COURT IN ENTERING ANY PROHIBITION AGAINST PAYMENTS "IN SUCH
AMOUNTS AS ITS (THE CITY'S) GOVERNING BODY MAY DETERMINE" AND "AGAINST
USE OF ITS PUBLIC LEVEE REVENUES" FOR THE PAYMENT OF "DAMAGES SUSTAINED
BY PRODUCE DEALERS MOVING" TO THE TERMINAL. 

RESOLUTION 11275 WAS CONSTRUED BY THE SUPREME COURT OF KANSAS TO
AUTHORIZE DISBURSEMENTS OF AVAILABLE MARKET FUNDS FOR SUCH PURPOSES "AS
IN THE JUDGMENT OF SAID GOVERNING BODY WILL BE TO THE BEST INTERESTS OF
THE CITY."  FN22  BY THE RESOLUTION THESE EXPENDITURES WERE LIMITED TO
THE DEALERS' ACTUAL COSTS OF REMOVAL, INCLUDING LOSS OF GOOD WILL. 

IN PRIOR SECTIONS OF THIS OPINION, IT HAS BEEN POINTED OUT THAT ANY
CONCESSION BY ANY PERSON OR CORPORATION IN RESPECT TO TRANSPORTATION IS
FORBIDDEN BY THE FEDERAL TRANSPORTATION STATUTES.  THE PARAGRAPH OF THE
INJUNCTION NOW UNDER EXAMINATION UNDERTAKES TO APPLY THIS RULE SO THAT
NO CASH PAYMENTS OR RENTAL CREDITS MAY BE GIVEN.  IT IS CLEAR THAT IN
SO FAR AS SUCH CASH OR CREDIT IS A "REBATE, CONCESSION OR
DISCRIMINATION" SUCH AN INJUNCTION IS PROPER, BUT DO ALL PAYMENTS TO
INDUCE DEALERS TO RENT SPACE IN THE TERMINAL FALL IN THESE
CLASSIFICATIONS?  THE TRIAL COURT SAID, 

"THE PROPOSED PAYMENTS TO MISSOURI DEALERS TO INDUCE THEM TO MOVE TO
THE NEW MARKET NOT BEING MADE TO ALL TENANTS AT THE NEW MARKET AND
BEING IN THE NATURE OF BONUSES THE AMOUNT OF WHICH WAS NOT BASED ON
ACTUAL LOSS OR EXPENSE, FALL WITHIN THE CLASSIFICATION OF
DISCRIMINATIONS PROHIBITED BY THE ELKINS ACT."  THE WORDS OF THE
INJUNCTION, HOWEVER, GO FARTHER AND FORBID PAYMENTS EVEN THOUGH THE
PAYMENTS ARE IN ALL FAIRNESS AND STRICTNESS LIMITED TO ACTUAL AND
NECESSARY EXPENSES AND LOSSES IN MOVING AN ESTABLISHMENT. 
CONSEQUENTLY, IN DECIDING THE FORM OF THE INJUNCTION, WE NEED TO
DETERMINE THE BREADTH OF LANGUAGE NECESSARY "TO SUPPRESS THE UNLAWFUL
PRACTICES" AND PRECLUDE THEIR REVIVAL.  FN23  THE DISTRICT COURT
SUMMARIZED IN FINDINGS OF FACT AND CONCLUSIONS OF LAW THE CONSTANT
ACTIVITY OF THE UNION PACIFIC IN PRESSING FORWARD THE IDEA OF THE
TERMINAL.  IT HAD BEFORE IT THE TESTIMONY THAT THE ROAD SOUGHT,
METICULOUSLY, TO AVOID CONFLICT WITH THE ELKINS ACT AND YET GAIN THE
INSTALLATION OF THE MARKET; THAT THE RAILWAY REPRESENTATIVES ACTED WITH
THE CITY COMMITTEES AND TALKED WITH PROSPECTIVE TENANTS.  RAILROAD
INFLUENCE PERVADED EACH CITY ACTION AND, IN THOSE CIRCUMSTANCES, THE
DECREE MUST BE MOLDED TO MEET THE DANGER OF SUBTLE MOVES AGAINST THE
EQUALITY BETWEEN SHIPPERS GUARANTEED BY THE ELKINS ACT. 

WHERE, AS HERE, THE ACTION OF THE CITY IN GIVING CASH AND RENTAL
CREDITS IS, AS WE HAVE DECIDED, A PART OF A PLAN IN RESPECT TO
TRANSPORTATION RESULTING IN AN ADVANTAGE TO SHIPPERS, WE CONCLUDE THAT
THE GIVING OF ANY CASH, RENTAL CREDIT, FREE OR REDUCED RENTS, TO INDUCE
LEASING OF SPACE IN THE TERMINAL IS CONTRARY TO THE ELKINS ACT.  EVEN
IF WE ASSUME THAT NOTHING WILL BE GIVEN EXCEPT THE ACTUAL COSTS OF
REMOVAL, THE RECEIPT OF THOSE COSTS WOULD PUT THE SHIPPER IN A
PREFERRED POSITION TO ALL OTHER SHIPPERS USING THE FACILITIES OF AN
INTERSTATE CARRIER WHO DID NOT RECEIVE SUCH CONCESSIONS.  THE ACT
CONDEMNS ANY DEVICE "WHEREBY ANY OTHER ADVANTAGE (THAN LOWER TARIFFS)
IS GIVEN.  ...  "  THE WORDING OF PARAGRAPH (1) IS APPROVED. 

ANOTHER PROHIBITION OF THE INJUNCTION DETERMINES THAT THE RATES FOR
SPACE SHALL BE SUCH "WHICH WILL YIELD A PROPER RATE OF RETURN UPON THE
FULL VALUE OF THE MARKET FACILITIES AS A WHOLE, AFTER MAKING PROVISION
FOR ALL EXPENSES OF OPERATION, INCLUDING MAINTENANCE AND
DEPRECIATION."  FN24 IDENTICAL LANGUAGE IN PARAGRAPH THIRD (2) OF THE
INJUNCTION FORBIDS PRODUCE DEALERS, OF WHOM MANY WERE PARTIES TO THIS
PROCEEDING, AND THEIR AGENTS FROM BEING TENANTS OF THE TERMINAL AT
RENTAL RATES WHICH ARE NOT ADEQUATE TO YIELD THE REQUIRED AMOUNT.  THE
INCLUSION OF THIS REQUIREMENT IS IN OUR OPINION ERRONEOUS.  THE WORDS
QUOTED IN THE TEXT SHOULD BE STRICKEN AND THE INJUNCTION AMENDED BY
INSERTING IN LIEU OF THE STRICKEN WORDS THE FOLLOWING:  "WHICH IS A
FAIR RENTAL VALUE FOR THE FACILITIES OCCUPIED."  THE REASONS FOR THE
DELETION FOLLOW. 

THE PRELIMINARY INJUNCTION REFERRED TO IN THE EXCERPT FROM THE FINAL
INJUNCTION QUOTED IN NOTE 24 SET THE RENTALS AT NOT LESS THAN CERTAIN
DEFINITE AMOUNTS PER MONTH AND PER ANNUM FOR OPERATING UNITS AND OFFICE
SPACE.  THERE WERE ALLOWANCES FOR UNCOMPLETED FACILITIES NOT NOW
IMPORTANT.  NO ISSUE IS RAISED HERE AS TO WHETHER THE SUMS FIXED WERE
OR WERE NOT A FAIR RENTAL VALUE.  ADEQUATE FINDINGS DETERMINED THE
VALUES OF THE FACILITIES, THE ESTIMATED GROSS AND NET REVENUES AND
RATES OF RETURN.  WITH THESE FINDINGS BEFORE IT, THE DISTRICT COURT
FURTHER FOUND IN ITS FINAL ORDER THAT THE RATES FIXED IN THE
PRELIMINARY INJUNCTION WERE COMPENSATORY AND DID NOT AMOUNT "TO A GIFT
OF ANY PART OF THE VALUE OF THE USE OF THE FOOD TERMINAL TO THE TENANT
SHIPPERS."  FN25  THIS RESULT IS NOT QUESTIONED.  IT MAY THEREFORE BE
CONCLUDED THAT THIS SCALE OF CHARGES MEETS THE REQUIREMENTS OF THE
DECREE FOR AGGREGATE RATES WHICH DO NOT AMOUNT TO CONCESSIONS.  SINCE
THE ADEQUACY OF THESE RATES WAS REACHED IN CONSIDERING THE FULL VALUE
OF THE PROPERTIES, INCLUDING THE LAND FURNISHED BY THE CITY AND THE
GRANT FROM THE PUBLIC WORKS ADMINISTRATION, IT MAY BE ASSUMED THAT THEY
ARE NOT LESS THAN A FAIR RENTAL VALUE.  THE LAST PARAGRAPH OF THE ORDER
PROVIDES A METHOD FOR MODIFICATION BY APPLICATION TO THE COURT SHOULD
EITHER SIDE BE OF OPINION THAT THIS ASSUMPTION IS INCORRECT.  AS WILL
IMMEDIATELY APPEAR FROM THIS OPINION, IT IS UNNECESSARY TO GIVE
CONSIDERATION TO THE CONTENTION THAT THE DISTRICT COURT ERRED IN ADDING
THE VALUE OF THE CITY'S LAND AND THE AMOUNT OF THE GRANT TO THE COST OF
THE FACILITIES.  IF THE CORRECT TEST IS FAIR RENTAL VALUE, COST OF
FACILITY IS ONLY PERSUASIVE, NOT DETERMINATIVE.  CONSEQUENTLY IT MAY BE
SHOWN AS A MATERIAL FACTOR IN DETERMINING THE FAIR RENTAL VALUE OF THE
PROPERTIES BUT THE RATES ARE NOT REQUIRED TO BE UPON A LEVEL WHICH WILL
GIVE A RETURN UPON THE VALUE OF THE INVESTMENT AS A WHOLE. 

FAIR RENTAL VALUE RATHER THAN A COMPENSATORY RETURN UPON FULL VALUE
OF THE MARKET FACILITIES IS THE STANDARD BY WHICH THE CITY'S SCHEDULE
OF RATES IS TO BE JUDGED.  TO DETERMINE FAIR RENTAL VALUE, THE GOING
RATES OF RENTAL FOR SIMILAR FACILITIES IN THE COMMUNITY ARE
SIGNIFICANT, AS ARE THE RENTALS PROSPECTIVE TENANTS ARE WILLING TO
PAY.  LIKEWISE, EVIDENCE OF THE OVER-ALL COST AND THE OVER-ALL VALUE OF
THE PROPERTIES WOULD BE MATERIAL.  THE COST OF FURNISHING THE
FACILITIES, INCLUDING THE NORMAL RETURN ON CAPITAL EMPLOYED IN LIKE
ENTERPRISES WOULD HAVE WEIGHT.  OTHER PERTINENT FACTORS WOULD DOUBTLESS
EMERGE IN A CONTROVERSY TO HAVE DETERMINED JUDICIALLY WHETHER CERTAIN
RENTALS RECEIVED ARE OR ARE NOT FAIR.  WHEN ENOUGH EVIDENCE IS OFFERED
TO JUSTIFY A CONCLUSION BASED UPON JUDGMENT AND NOT GUESSWORK, THE
REQUIREMENTS OF THE JUDICIAL PROCESS ARE MET.  FN26 

THIS IS NOT THE CASE FOR A RIGID RULE THAT AGGREGATE RENTALS ARE TO
EQUAL COSTS, SUCH AS WAS APPLIED IN BALTIMORE & OHIO R. CO. V. UNITED
STATES, 305 U.S. 507, 523-524, WHERE THIS COURT APPROVED AN ORDER OF
THE INTERSTATE COMMERCE COMMISSION DESIGNED TO ROOT OUT COMPETITIVE
EVILS IN DISCRIMINATORY WAREHOUSING INDULGED IN BY CARRIERS IN AN
EFFORT TO ACQUIRE TRAFFIC.  THE CITY IS ENTITLED TO DEVELOP ITS
PROPERTIES AND LOCATION IN ACCORDANCE WITH THE LAWS OF KANSAS FOR CIVIC
ADVANTAGE, SO LONG AS IT DOES NOT UTILIZE ITS FACILITIES IN FURTHERANCE
OF A SCHEME TO OBTAIN CUSTOMERS FOR A CARRIER BY THE OFFERING OF
CONCESSIONS, CONTRARY TO THE ELKINS ACT.  IT WAS RECOGNIZED IN
BALTIMORE & OHIO R. CO. V. UNITED STATES THAT A CHARGE OF FAIR RENTAL
VALUE FOR SERVICES ACCESSORIAL TO TRANSPORTATION WOULD ADEQUATELY
PROTECT EVEN A CARRIER UNDER PROPER CIRCUMSTANCES.  WE ARE OF THE VIEW
THAT RENTAL CHARGES FIXED UPON THAT CONCEPT WILL AVOID THE
DISCRIMINATORY EVILS PROSCRIBED BY THE ELKINS ACT. 

WITH THE MODIFICATIONS DIRECTED IN THIS OPINION, THE ORDER OF THE
DISTRICT COURT IS AFFIRMED. 

FN1  SECTION 1(1) OF THE ELKINS ACT (32 STAT. 847; 34 STAT. 587; 49
U.S.C. SEC. 41(1)), SO FAR AS PERTINENT HERE, PROVIDES: 

"ANYTHING DONE OR OMITTED TO BE DONE BY A CORPORATION COMMON CARRIER,
SUBJECT TO CHAPTER 1 OF THIS TITLE, WHICH, IF DONE OR OMITTED TO BE
DONE BY ANY DIRECTOR OR OFFICER THEREOF, OR ANY RECEIVER, TRUSTEE,
LESSEE, AGENT, OR PERSON ACTING FOR OR EMPLOYED BY SUCH CORPORATION,
WOULD CONSTITUTE A MISDEMEANOR UNDER SAID CHAPTER OR UNDER SECTIONS 41,
42, OR 43 OF THIS TITLE, SHALL ALSO BE HELD TO BE A MISDEMEANOR
COMMITTED BY SUCH CORPORATION, AND UPON CONVICTION THEREOF IT SHALL BE
SUBJECT TO LIKE PENALTIES AS ARE PRESCRIBED IN SAID CHAPTER OR BY
EXCEPT AS SUCH PENALTIES ARE HEREIN CHANGED.  THE WILLFUL FAILURE UPON
THE PART OF ANY CARRIER SUBJECT TO SAID CHAPTER TO FILE AND PUBLISH THE
TARIFFS OR RATES AND CHARGES AS REQUIRED BY SAID CHAPTER, OR STRICTLY
TO OBSERVE SUCH TARIFFS UNTIL CHANGED ACCORDING TO LAW, SHALL BE A
MISDEMEANOR, AND UPON CONVICTION THEREOF THE CORPORATION OFFENDING
SHALL BE SUBJECT TO A FINE OF NOT LESS THAN $1,000 NOR MORE THAN
$20,000 FOR EACH OFFENSE; AND IT SHALL BE UNLAWFUL FOR ANY PERSON,
PERSONS, OR CORPORATION TO OFFER, GRANT, OR GIVE, OR TO SOLICIT,
ACCEPT, OR RECEIVE ANY REBATE, CONCESSION, OR DISCRIMINATION IN RESPECT
TO THE TRANSPORTATION OF ANY PROPERTY IN INTERSTATE OR FOREIGN COMMERCE
BY ANY COMMON CARRIER SUBJECT TO SAID CHAPTER WHEREBY ANY SUCH PROPERTY
SHALL BY ANY DEVICE WHATEVER BE TRANSPORTED AT A LESS RATE THAN THAT
NAMED IN THE TARIFFS PUBLISHED AND FILED BY SUCH CARRIER, AS IS
REQUIRED BY SAID CHAPTER, OR WHEREBY ANY OTHER ADVANTAGE IS GIVEN OR
DISCRIMINATION IS PRACTICED.  EVERY PERSON OR CORPORATION, WHETHER
CARRIER OR SHIPPER, WHO SHALL, KNOWINGLY, OFFER, GRANT, OR GIVE, OR
SOLICIT, ACCEPT, OR RECEIVE ANY SUCH REBATES, CONCESSION, OR
DISCRIMINATION SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND ON
CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT LESS THAN $1,000
NOR MORE THAN $20,000:  PROVIDED, THAT ANY PERSON, OR ANY OFFICER OR
DIRECTOR OF ANY CORPORATION SUBJECT TO THE PROVISIONS OF SECTIONS 41,
42, OR 43 OF THIS TITLE OR OF CHAPTER 1 OF THIS TITLE, OR ANY RECEIVER,
TRUSTEE, LESSEE, AGENT, OR PERSON ACTING FOR OR EMPLOYED BY ANY SUCH
CORPORATION, WHO SHALL BE CONVICTED AS AFORESAID, SHALL, IN ADDITION TO
THE FINE HEREIN PROVIDED FOR, BE LIABLE TO IMPRISONMENT IN THE
PENITENTIARY FOR A TERM OF NOT EXCEEDING TWO YEARS, OR BOTH SUCH FINE
AND IMPRISONMENT, IN THE DISCRETION OF THE COURT.  ...  " 

FN2  32 STAT. 848; 36 STAT. 1167; 49 U.S.C. SEC. 43: 

"WHENEVER THE INTERSTATE COMMERCE COMMISSION SHALL HAVE REASONABLE
GROUND FOR BELIEF THAT ANY COMMON CARRIER IS ENGAGED IN THE CARRIAGE OF
PASSENGERS OR FREIGHT TRAFFIC BETWEEN GIVEN POINTS AT LESS THAN THE
PUBLISHED RATES ON FILE, OR IS COMMITTING ANY DISCRIMINATIONS FORBIDDEN
BY LAW, A PETITION MAY BE PRESENTED ALLEGING SUCH FACTS TO THE DISTRICT
COURT OF THE UNITED STATES SITTING IN EQUITY HAVING JURISDICTION; AND
WHEN THE ACT COMPLAINED OF IS ALLEGED TO HAVE BEEN COMMITTED OR AS
BEING COMMITTED IN PART IN MORE THAN ONE JUDICIAL DISTRICT OR STATE, IT
MAY BE DEALT WITH, INQUIRED OF, TRIED, AND DETERMINED IN EITHER SUCH
JUDICIAL DISTRICT OR STATE, WHEREUPON IT SHALL BE THE DUTY OF THE COURT
SUMMARILY TO INQUIRE INTO THE CIRCUMSTANCES, UPON SUCH NOTICE AND IN
SUCH MANNER AS THE COURT SHALL DIRECT AND WITHOUT THE FORMAL PLEADINGS
AND PROCEEDINGS APPLICABLE TO ORDINARY SUITS IN EQUITY, AND TO MAKE
SUCH OTHER PERSONS OR CORPORATIONS PARTIES THERETO AS THE COURT MAY
DEEM NECESSARY, AND UPON BEING SATISFIED OF THE TRUTH OF THE
ALLEGATIONS OF SAID PETITION SAID COURT SHALL ENFORCE AN OBSERVANCE OF
THE PUBLISHED TARIFFS OR DIRECT AND REQUIRE A DISCONTINUANCE OF SUCH
DISCRIMINATION BY PROPER ORDERS, WRITS, AND PROCESS, WHICH SAID ORDERS,
WRITS, AND PROCESS MAY BE ENFORCEABLE AS WELL AGAINST THE PARTIES
INTERESTED IN THE TRAFFIC AS AGAINST THE CARRIER, SUBJECT TO THE RIGHT
OF APPEAL AS NOW PROVIDED BY LAW.  IT SHALL BE THE DUTY OF THE SEVERAL
DISTRICT ATTORNEYS OF THE UNITED STATES, WHENEVER THE ATTORNEY GENERAL
SHALL DIRECT, EITHER OF HIS OWN MOTION OR UPON THE REQUEST OF THE
INTERSTATE COMMERCE COMMISSION, TO INSTITUTE AND PROSECUTE SUCH
PROCEEDINGS, AND THE PROCEEDINGS PROVIDED FOR BY SECTIONS 41, 42, OR 43
OF THIS TITLE SHALL NOT PRECLUDE THE BRINGING OF SUIT FOR THE RECOVERY
OF DAMAGES BY ANY PARTY INJURED, OR ANY OTHER ACTION PROVIDED BY
CHAPTER 1 OF THIS TITLE.  ...  PROVIDED, THAT THE PROVISIONS OF
UNDER THE DIRECTION OF THE ATTORNEY GENERAL IN THE NAME OF THE
INTERSTATE COMMERCE COMMISSION."    FN3  CF. UNITED STATES V. CHICAGO
NORTH SHORE R. CO., 288 U.S. 1, AN APPEAL FROM A ONE-JUDGE COURT FROM
DECREE ON A PETITION UNDER SEC. 12(1) OF THE INTERSTATE COMMERCE ACT AS
AMENDED, 49 U.S.C. SEC. 12(1); ETHYL GASOLINE CORP. V. UNITED STATES,
309 U.S. 436, 446. 

FN4  THE CITY SPENT AN ADDITIONAL $149,000 FROM ITS GENERAL REVENUES
FOR STREET AND SEWER IMPROVEMENTS IN THE TERMINAL AREA. 

FN5  FURTHER, MALLIN HAD SUBLET PART OF THE PROPERTY, AND AT THE TIME
HAD A NET RENTAL EXPENSE OF NO MORE THAN $25 PER MONTH. 

FN6  1897 ANNUAL REPORT, I.C.C., 47. 

FN7  1900 ANNUAL REPORT, I.C.C., 13. 

FN8  1902 ANNUAL REPORT, I.C.C., 8-10; 32 STAT. 848. 

FN9  NEW YORK, N.H. & H.R. CO. V. INTERSTATE COMMERCE COMM'N, 200
U.S. 361, 398. 

FN10  ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, 72. 

FN11  BALTIMORE & OHIO R. CO. V. UNITED STATES, 305 U.S. 507, 524. 

FN12  UNITED STATES V. UNION STOCK YARD CO., 226 U.S. 286. 

FN13  34 STAT. 584, 588; 40 CONG. REC. 7022. 

FN14  SEE INTERSTATE COMMERCE COMMISSION V. REICHMANN, 145 F. 235,
240, REBATE BY NON-CARRIER PRIVATE CAR COMPANY TO SHIPPER, DECIDED
PRIOR TO THE ADDITION OF THE CLAUSE "WHETHER CARRIER OR SHIPPER" BY THE
ACT OF JUNE 29, 1906; UNITED STATES V. MILWAUKEE REFRIGERATOR CO., 145
F. 1007, 1012, LIKEWISE DECIDED BEFORE THE AMENDMENT; DYE V. UNITED
STATES, 262 F. 6; UNITED STATES V. KOENIG COAL CO., 270 U.S. 512, 520. 

FN15  SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE COMMERCE
COMMISSION, 219 U.S. 498. 

FN16  UNITED STATES V. UNION STOCK YARD CO., 226 U.S. 286, 308. 

FN17  BALTIMORE & OHIO R. CO. V. UNITED STATES, 305 U.S. 507. 

FN18  151 KAN. 1 AND 2, 8; 97 P.2D 104, 105; 98 P.2D 101. 

FN19  HOUSTON & TEXAS RY. CO. V. UNITED STATES, 234 U.S. 342, 351;
UNITED STATES V. CALIFORNIA, 297 U.S. 175; PALMER V. MASSACHUSETTS, 308
U.S. 79, 84; NEW YORK V. UNITED STATES, 257 U.S. 591, 600-01; UNITED
STATES V. HOLT BANK, 270 U.S. 49, 55-56; MORGAN V. COMMISSIONER, 309
U.S. 78, 80-81; CHICAGO BOARD OF TRADE V. JOHNSON, 264 U.S. 1, 10; CITY
OF NEW YORK V. FEIRING, ANTE, P. 283. 

FN20  THE DIFFICULTY IS SHOWN BY THE DISTRICT COURT'S LANGUAGE IN
FINDING 34: 

"THE CITY'S FORECAST OF ITS ABILITY TO PAY OFF THE BONDS IN TWENTY
TWO YEARS IS BASED UPON A NINETY PERCENT OCCUPANCY OF THE MARKET
FACILITIES AS COMPARED WITH AN ACTUAL PERCENTAGE OF OCCUPANCY OF LESS
THAN THIRTY-FIVE PERCENT AT THE PRESENT TIME, AND THERE IS ASSUMED AN
ABILITY TO EXACT THE SAME LEVEL OF RENTALS WHEN THE MARKET BUILDINGS
BECOME TWENTY-FIVE OR THIRTY YEARS OLD AS AT THE PRESENT TIME WHEN THEY
ARE NEW.  THE CITY'S ESTIMATE OF OPERATING EXPENSES IS UNDULY LOW BY
REASON OF THE OMISSION OF ANY SUMS TO COVER THE ANNUAL LOSS DUE TO
DEPRECIATION AND OBSOLESCENCE NOT MADE GOOD BY CURRENT MAINTENANCE. 

"THE DEFENDANT CITY WILL DERIVE NO IMMEDIATE DIRECT FINANCIAL BENEFIT
FROM THE OPERATION OF THE KANSAS CITY FOOD TERMINAL.  THE UNION
PACIFIC, BY REASON OF THE ANTICIPATED IMPROVEMENT OF THE VOLUME OF ITS
TRAFFIC IN PERISHABLE PRODUCE AND CONSEQUENT INCREASE IN ITS REVENUES,
WILL RECEIVE AN IMMEDIATE AND CONTINUING BENEFIT FROM THE PROJECT." 

FN21  THIS PROVISION READS:  "(1)  FROM OFFERING, GRANTING, OR
GIVING, OR ASSISTING, JOINING, OR CO-OPERATING IN OFFERING, GRANTING,
OR GIVING CASH PAYMENTS OR RENTAL CREDITS, FREE RENTS, AND REDUCED
RENTS, UNSECURED OR INADEQUATELY SECURED LOANS CONSTITUTING
CONCESSIONS, OR OTHER VALUABLE CONSIDERATIONS TO DEFENDANT PRODUCE
DEALERS OR OTHER PRODUCE DEALERS, OR PRODUCE BROKERS OR OTHER PERSONS,
FIRMS, OR CORPORATIONS SHIPPING PRODUCE BY RAILROAD IN INTERSTATE
COMMERCE TO MOVE OR FOR MOVING TO THE KANSAS CITY FOOD TERMINAL OR FOR
LEASING SPACE OR REMAINING AS TENANTS IN SAID FOOD TERMINAL." 

FN22  STATE EX REL. PARKER V. KANSAS CITY, 151 KAN. 2, 8; 98 P.2D
101, 105. 

FN23  ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 461.  CF.
NATIONAL LABOR RELATIONS BOARD V. EXPRESS PUBLISHING CO., 312 U.S. 426,
435. 

FN24  THE FULL PARAGRAPH ENJOINS THE UNION PACIFIC AND THE CITY OF
KANSAS CITY, KANSAS, AND THEIR OFFICERS AND EMPLOYEES, 

"(2)  FROM PERMITTING DEFENDANT PRODUCE DEALERS OR OTHER PRODUCE
DEALERS, OR PRODUCE BROKERS OR OTHER PERSONS, FIRMS, OR CORPORATIONS
SHIPPING OR RECEIVING TRAFFIC BY RAILROAD IN INTERSTATE COMMERCE TO
OCCUPY OR REMAIN AS TENANTS OF THE WHOLESALE PRODUCE BUILDINGS OR OF
OTHER FACILITIES AT THE KANSAS CITY FOOD TERMINAL UNLESS SAID PRODUCE
DEALERS, PRODUCE BROKERS, OR OTHER PERSONS, FIRMS, OR CORPORATIONS -
(A) SHALL PAY RENTAL FOR PAST OCCUPANCY OF SUCH FACILITIES UNDER THE
PROVISIONS OF THE TEMPORARY RESTRAINING ORDER AND THE PRELIMINARY
INJUNCTION HERETOFORE ENTERED IN THIS CAUSE, AND (B) SHALL PAY RENTAL
HEREAFTER FOR SUCH FACILITIES AT THE SAME RATE CHARGED ALL OTHER
SHIPPERS OCCUPYING SIMILAR FACILITIES AT SAID TERMINAL, WHICH DOES NOT
AMOUNT TO A REBATE OR CONCESSION TO ANY TENANT, AND WHICH WILL YIELD A
PROPER RATE OF RETURN UPON THE FULL VALUE OF THE MARKET FACILITIES AS A
WHOLE, AFTER MAKING PROVISION FOR ALL EXPENSES OF OPERATION, INCLUDING
MAINTENANCE AND DEPRECIATION.  PROVIDED FURTHER THAT NOTHING CONTAINED
IN THIS DECREE SHALL BE CONSTRUED TO LIMIT THE CITY IN THE RENTING OF
SAID FACILITIES TO A UNIT BASIS; BUT IN NO EVENT SHALL THE RATES OF
RENTAL AND CHARGES PRESCRIBED FOR SUCH FACILITIES AGGREGATE LESS THAN
IS HEREINABOVE PROVIDED." 

FN25  THESE ULTIMATE FINDINGS ARE AS FOLLOWS: 

"41.  THE UNIFORM OR STANDARD RATES OF RENTAL ADOPTED AND APPROVED BY
KANSAS CITY, KANSAS, FOR LEASE OF WAREHOUSE SPACE AND OFFICE SPACE AT
THE KANSAS CITY FOOD TERMINAL ARE $150.00 PER MONTH PER UNIT AND $1.10
PER SQUARE FOOT PER ANNUM, RESPECTIVELY, AND THE AVERAGE RATE OF RENTAL
ADOPTED OR APPROVED BY KANSAS CITY, KANSAS, FOR LEASE OF THE COLD
STORAGE PLANT AND APPURTENANT FACILITIES AT SAID FOOD TERMINAL IS
$38,497 PER ANNUM.  SUCH RENTALS ARE INTENDED TO PROVIDE SUFFICIENT
FUNDS TO AMORTIZE THE PRINCIPAL AND PAY THE INTEREST ON THE PUBLIC
LEVEE REVENUE BONDS PURCHASED BY THE DEFENDANT UNION PACIFIC RAILROAD
COMPANY, REPRESENTING 55 PERCENT OF THE TOTAL COST OF CONSTRUCTION OF
THE SAID FOOD TERMINAL, AND TO COMPENSATE THE CITY FOR THE USE OF THE
FACILITIES FOR THE PURPOSE TO WHICH THEY ARE DEDICATED. 

"42.  THE NET RETURN, WHILE LOW AS COMPARED TO THE FAIR RETURN OF
MANY PRIVATELY OWNED UTILITIES DEVOTED TO THE SERVICE OF THE PUBLIC, IS
COMPENSATORY AND, IN VIEW OF THE PURPOSE OF THE CITY TO BRING ABOUT
INDUSTRIAL IMPROVEMENT AND THE INCIDENTAL ADVANTAGE TO THE CITY FOR
THAT PURPOSE AND THE RETURN GENERALLY OBTAINED FROM INVESTMENTS IN
UTILITIES OF LIKE OR SIMILAR NATURE, THE PRESENT RENTAL RATES AND THE
CONSEQUENT RETURN TO THE CITY ARE NOT SO LOW THAT THE USE OF THE FOOD
TERMINAL BY TENANTS IN INTERSTATE COMMERCE AT THOSE RENTALS WILL AMOUNT
TO A GIFT OF ANY PART OF THE VALUE OF THE USE OF THE FOOD TERMINAL TO
THE TENANT SHIPPERS." 

FN26  CF. PALMER V. CONNECTICUT RY. & LIGHTING CO., 311 U.S. 544,
559, AND CASES CITED. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE ROBERTS: 

I CANNOT AGREE WITH THE JUDGMENT IN THIS CASE.  IN LAST ANALYSIS THE
QUESTION PRESENTED IS WHETHER THE ELKINS ACT PROSCRIBES FINANCIAL
TRANSACTIONS BY A CITY WITH PROPOSED OCCUPANTS OF A CITY-OWNED BUILDING
BECAUSE THOSE OCCUPANTS WILL BE SHIPPERS IN INTERSTATE COMMERCE FROM
SUCH BUILDING, WHERE THE CITY IS TO FURNISH NO FACILITIES OR SERVICES
OF TRANSPORTATION, WHERE THE TRANSACTIONS INVOLVE NO PAYMENTS,
CONCESSIONS OR DISCRIMINATIONS ON THE PART OF ANY INTERSTATE CARRIER,
ARE AUTHORIZED BY STATE LAW AND ARE FOR THE CITY'S BENEFIT.  A
SUBSIDIARY QUESTION IS WHETHER IN FACT THE PROPOSED TRANSACTIONS AMOUNT
TO DISCRIMINATIONS IN FAVOR OF SUCH OCCUPANTS.  A FURTHER QUESTION IS
PRESENTED WITH RESPECT TO THE DECREE TO BE ENTERED. 

I FIND IT UNNECESSARY TO DISCUSS THE EVIDENCE IN DETAIL, OR NARROWLY
TO EXAMINE THE FINDINGS.  I SHALL ENDEAVOR, FOR THE PURPOSE OF REACHING
THE LEGAL QUESTIONS, TO CONSIDER THE CASE IN THE LIGHT MOST FAVORABLE
TO THE APPELLEES. 

THE DEFENDANTS DEOREO AND FEAN ARE NOT PHILANTHROPISTS BUT PROMOTERS
WHO HAD MORE OR LESS SUCCESSFULLY PROMOTED PRODUCE TERMINALS IN VARIOUS
CITIES.  THEY CONCEIVED THE PLAN OF ESTABLISHING ONE IN KANSAS CITY,
KANSAS.  THEY EXPECTED A PROFIT OUT OF THE VENTURE.  THEIR ORIGINAL
IDEA WAS THAT THEY SHOULD BECOME LESSEES OF THE TERMINAL AND MAKE THEIR
PROFIT BY SUB-RENTING SPACE IN IT.  WHEN THIS PURPOSE WAS ABANDONED
THEY SOUGHT TO BE MADE EXCLUSIVE RENTAL AGENTS.  OBJECTION BY THE
P.W.A. RENDERED THIS PROPOSAL IMPRACTICABLE.  THEY HAVE RECEIVED
CONSIDERABLE PAYMENTS FROM UNION PACIFIC FOR THEIR EFFORTS IN
CONNECTION WITH THE ESTABLISHMENT OF THE TERMINAL. 

DEOREO AND FEAN PRESENTED THEIR PLAN TO UNION PACIFIC.  THAT COMPANY
TOOK AN INTEREST, NOT ELEEMOSYNARY BUT PRACTICAL, IN THE PROJECT. 
INASMUCH AS ITS TRACKS WOULD SERVE THE PROPOSED TERMINAL, THE RAILROAD
NATURALLY DESIRED THAT THE PLAN GO THROUGH SO THAT IT MIGHT GET
INCREASED BUSINESS AND OBTAIN A COMPETITIVE ADVANTAGE OVER OTHER
RAILROADS SERVING THE AREA KNOWN AS GREATER KANSAS CITY AND
PARTICULARLY THE FOOD TERMINAL AT KANSAS CITY, MISSOURI.  BUT THE
RAILROAD DID NOT DESIRE TO ERECT THE TERMINAL.  IT SOUGHT TO INTEREST
THE OFFICIALS OF KANSAS CITY, KANSAS, IN THE SCHEME, AND SUCCEEDED IN
DOING SO. 

SOME YEARS AGO KANSAS CITY, KANSAS, HAD BEEN GIVEN A LARGE TRACT OF
WATER-FRONT LAND WHICH, UNTIL RECENTLY, HAD BEEN UNUSED.  THROUGH A
P.W.A. GRANT AND A LOAN FROM RECONSTRUCTION FINANCE CORPORATION, THE
CITY HAD MADE SOME IMPROVEMENTS AND HAD ERECTED A GRAIN ELEVATOR AND
DOCKS ON THE TRACT WHICH WERE SERVED BY THE LINES OF UNION PACIFIC AND
MISSOURI PACIFIC.  THE BALANCE OF THE TRACT WAS AVAILABLE FOR A PRODUCE
TERMINAL.  THE ESTABLISHMENT OF SUCH AN INSTRUMENTALITY WOULD OBVIOUSLY
BE OF GREAT BENEFIT TO THE CITY IN BOTH FINANCIAL AND CIVIC ASPECTS. 
THE PLAN EVOLVED WAS THAT THE CITY SHOULD ERECT SUCH A TERMINAL; THAT
UNION PACIFIC WOULD CONSTRUCT A LARGE TEAM TRACK AND SWITCHING YARD ON
THE GROUND ADJACENT TO THE TERMINAL TO BE LEASED BY UNION PACIFIC FROM
THE CITY AND THAT THE TERMINAL SHOULD BE FINANCED BY THE CITY THROUGH A
P.W.A. GRANT AND INCOME BONDS. 

DEOREO AND FEAN, UNION PACIFIC, AND THE CITY OFFICIALS ALL STRUGGLED
EARNESTLY TO OBTAIN A GRANT FROM P.W.A.  AN INVESTIGATION BY THE
DEPARTMENT OF AGRICULTURE DISCLOSED THAT THE TERMINAL WOULD BE HIGHLY
BENEFICIAL TO THE PRODUCERS TRIBUTARY TO THE KANSAS CITY MARKET. 
INVESTIGATION BY THE P.W.A. DISCLOSED THAT THE SCHEME WAS DESIRABLE AND
PRACTICABLE.  A GRANT OF NOT TO EXCEED $1,700,000 WAS MADE, CONDITIONED
ON THE FINANCING OF THE REMAINDER OF THE PROJECT. 

UNION PACIFIC AND THE CITY OFFICIALS NEGOTIATED WITH AN UNDERWRITING
HOUSE FOR THE SALE, BY THE CITY, OF $3,000,000 OF INCOME BONDS,
$1,033,000 OF WHICH WERE TO BE USED TO PAY OFF THE OUTSTANDING BONDS,
AND THE BALANCE FOR THE ERECTION OF THE TERMINAL.  ALTHOUGH A FIRM
COMMITMENT HAD BEEN OBTAINED, THE BOND HOUSE, AT THE LAST MOMENT,
RECEDED FROM THE PROPOSITION, THUS LEAVING THE WHOLE PROJECT IN
JEOPARDY.  IN THIS SITUATION UNION PACIFIC ASSERTED ITS WILLINGNESS TO
BUY THE BONDS.  A BIDDING WAS HELD AND UNION PACIFIC WAS THE SUCCESSFUL
BIDDER.  NO QUESTION IS MADE OF THE LEGALITY OF THIS INVESTMENT BY THE
RAILROAD, AND ITS INTENTION TO TAKE THE BOND ISSUE WAS APPROVED BY
P.W.A. AND WAS CERTIFIED TO THE INTERSTATE COMMERCE COMMISSION.  THE
CITY HAD NO POWER TO PLEDGE ITS PROPERTY AND ITS GENERAL REVENUES AS
SECURITY FOR THE BONDS.  IT HAD FULL AUTHORITY TO ISSUE INCOME BONDS,
INTEREST, AND PRINCIPAL TO BE PAID FROM THE RECEIPTS OF THE TERMINAL. 
FN1 

THE CONDITION PRECEDENT TO THE P.W.A. GRANT HAVING BEEN FULFILLED,
THE CITY PROCEEDED WITH THE ERECTION OF THE TERMINAL WITH THE FULLEST
AID AND COOPERATION OF UNION PACIFIC.  THAT COMPANY HAD ADVANCED SOME
$22,000 FOR PRELIMINARY EXPENSES, WHICH THE CITY PROPOSED TO REPAY IT.
UNDER A RULING OF P.W.A. THE CITY COULD NOT DO SO WITH FUNDS PROCURED
FOR CONSTRUCTION, AND IF THE SUM IS REPAID THE FUNDS MUST COME OUT OF
INCOME.  THE RAILROAD, NOT UNNATURALLY, RETAINED AN ARCHITECT TO
COLLABORATE WITH THE CITY'S ARCHITECT RESPECTING THE CONSTRUCTION AND
EXERTED EVERY EFFORT TO BRING THE PLAN TO FRUITION. 

IN KANSAS CITY, MISSOURI, THERE WAS AN EXISTING WHOLESALE PRODUCE
MARKET.  THIS NEEDED EXTENSIVE ALTERATIONS AND ADDITIONS AND THE
EXPECTATION WAS THAT MANY OF THE TENANTS WOULD MOVE TO THE NEW AND MORE
CONVENIENT TERMINAL IN KANSAS CITY, KANSAS.  ALL WHO WERE INTERESTED IN
THE LATTER REALIZED THAT TENANTS OF THE OLD ONE IN MISSOURI MIGHT INCUR
EXPENSE IN GIVING UP THEIR QUARTERS AND MOVING TO THE NEW.  THEY
REALIZED ALSO THAT, IN ORDER PROMPTLY TO FILL THE NEW BUILDING, SOME
CONCESSIONS IN THE AMOUNT OF EARLY-ACCRUING RENTALS MIGHT HAVE TO BE
MADE.  AN ICE MANUFACTURING AND COLD STORAGE PLANT WAS PART OF THE
PROJECT.  A TENANT WAS OBTAINED FOR THIS UNIT AT A SUBSTANTIAL RENTAL. 
THE CITY AUTHORITIES NEGOTIATED AN ARRANGEMENT WITH THE TENANT FOR
PAYMENT OF SOME $80,000 IN ADVANCE RENTAL.  WITH THIS MONEY, AND OTHER
ADVANCE RENTS IT MIGHT OBTAIN, THE CITY FELT THAT IT COULD ARRANGE TO
REIMBURSE PERSONS WHO MIGHT BECOME TENANTS FOR LOSSES INCIDENT TO THEIR
REMOVAL.  THE QUESTION AROSE, HOWEVER, AS TO THE CITY'S AUTHORITY SO TO
DO.  THE MATTER WAS REFERRED TO A COMMITTEE OF LAWYERS AND ULTIMATELY
TO THE ATTORNEY GENERAL OF KANSAS.  THAT OFFICER THOUGHT THE MATTER
SHOULD BE SETTLED BY COURT DECISION.  ACCORDINGLY A PROCEEDING WAS
INSTITUTED IN THE SUPREME COURT OF KANSAS AND THAT COURT HELD THE CITY
HAD POWER, IN THE CIRCUMSTANCES, TO USE ADVANCE RENTS IN THE MANNER
PROPOSED.  FN2    AS WAS EXPECTED, TENANTS OF THE OLD MARKET IN
MISSOURI, WHEN SOLICITED TO MOVE TO THE NEW, RAISED QUESTIONS OF LOSSES
DUE TO UNEXPIRED LEASES, ABANDONMENT OF FIXTURES, ETC.  EVERYBODY
INTERESTED IN THE NEW TERMINAL, INCLUDING DEOREO AND FEAN, EMPLOYES OF
UNION PACIFIC, AND REPRESENTATIVES OF THE CITY, NEGOTIATED WITH THESE
PROSPECTIVE TENANTS IN RESPECT OF WHAT WOULD BE A FAIR RECOMPENSE FOR
THEIR LOSSES DUE TO REMOVAL AND REESTABLISHMENT.  NONE OF THESE
NEGOTIATORS HAD AUTHORITY TO DO MORE THAN ASCERTAIN THE CLAIMS OF SUCH
PROPOSED TENANTS, WHICH WERE TO BE SUBMITTED TO, AND ADJUSTED BY, A
COMMITTEE REPRESENTING AND ACTING FOR KANSAS CITY, KANSAS.  THE
EVIDENCE IS UNCONTRADICTED AND OVERWHELMING THAT UNION PACIFIC'S
EMPLOYES, AND EVERYONE ELSE CONCERNED, MADE IT CLEAR THAT ANY
ADJUSTMENT OF THESE LOSSES WOULD HAVE TO BE MADE BY THE CITY, AND BY
THE CITY ONLY; THAT THE RAILROAD COULD NOT, AND WOULD NOT, PAY A CENT
TOWARDS ANY SUCH EXPENSE. 

WHEN THIS SUIT WAS BROUGHT NOTHING HAD BEEN PAID TO ANY CLAIMANT. 
ONE CLAIM HAD BEEN APPROVED BY THE COMMITTEE.  IT TURNS OUT THAT
ALTHOUGH THAT CLAIM WAS SUPPORTED BY AFFIDAVIT IT WAS IN AN
UNJUSTIFIABLY LARGE AMOUNT WITH RESPECT TO THE CANCELLATION OF AN
EXISTING LEASE, BUT THERE IS NO EVIDENCE THAT THE CITY OFFICIALS, IN
APPROVING THE CLAIM, KNEW THIS OR WOULD HAVE APPROVED THE CLAIM HAD
THEY KNOWN IT, AND THERE IS NO FINDING THAT THE CLAIM WAS MADE IN BAD
FAITH.  MOREOVER, NEITHER WITH RESPECT TO THIS CLAIM NOR TO ANY OTHER
WHICH WAS UNDER CONSIDERATION AT THE TIME SUIT WAS INSTITUTED, IS THERE
EVIDENCE, AND THERE IS NO FINDING BY THE COURT BELOW OR BY THIS COURT,
EXCEPT BY INNUENDO, THAT IF THE CLAIMS MADE WERE PAID ANY PAYEE WOULD
HAVE EVEN BEEN MADE WHOLE FOR LOSSES CONSEQUENT ON MOVING AND
ESTABLISHING HIMSELF IN THE NEW LOCATION, OR THAT HE WOULD THEREBY HAVE
HAD ANY PREFERENCE OR ADVANTAGE OVER OTHER TENANTS TO WHOM NO SUCH
PAYMENTS WERE MADE. 

AT AN EARLY DAY IN THE DEVELOPMENT OF THE PROJECT, UNION PACIFIC
EXPRESSED ITS WILLINGNESS TO SWITCH ALL CONSIGNMENTS IN AND OUT OF THE
TERMINAL TO AND FROM OTHER RAILROADS AT A UNIFORM AND FAIR CHARGE.  IT
FILED A SWITCHING TARIFF WITH THE INTERSTATE COMMERCE COMMISSION WHICH
HAS BEEN ACCEPTED AND IS CONCURRED IN BY THE OTHER RAILROADS.  THE
TARIFF IS THE SAME AS THAT WHICH HAS BEEN IN FORCE FOR SIMILAR SERVICE
IN KANSAS CITY, MISSOURI.  THUS, ALL RAILROADS AND SHIPPERS ARE TO BE
SERVED INDIFFERENTLY AND AT A UNIFORM AND FAIR RATE FOR THE
TRANSPORTATION SERVICES INVOLVED. 

ON THESE FACTS THE QUESTION IS WHETHER THE ACTIONS OF THE RAILROAD,
THOSE OF THE CITY, OR THOSE OF THE TWO JOINTLY, CONSTITUTE A REBATE OR
A DISCRIMINATION WITHIN THE MEANING OF THE ELKINS ACT.  FN3 

1.  IT HAS ALWAYS BEEN UNDERSTOOD THAT ONE OF THE PURPOSES OF THE
INTERSTATE COMMERCE LAW WAS TO PREVENT A CARRIER FROM GIVING, AND A
SHIPPER FROM RECEIVING, TRANSPORTATION SERVICES AT LESS THAN THE
PUBLISHED TARIFF RATES, AND TO PRECLUDE WHAT IS EQUIVALENT, NAMELY, THE
FURNISHING OF A SERVICE AT TARIFF RATES TO ONE SHIPPER WHICH IS
WITHHELD FROM OTHERS.  THE SECTIONS OF THE ELKINS ACT HERE RELIED UPON
WERE MERELY INTENDED TO IMPLEMENT THIS CONGRESSIONAL AIM AND MORE
EFFICIENTLY TO PROVIDE AGAINST EVASION.  THUS IT IS MADE UNLAWFUL FOR
ANY PERSON OR CORPORATION TO OFFER, TO GRANT, TO GIVE, OR TO SOLICIT,
TO ACCEPT, OR TO RECEIVE, ANY REBATE, CONCESSION OR DISCRIMINATION IN
RESPECT OF THE TRANSPORTATION OF ANY PROPERTY IN INTERSTATE COMMERCE BY
ANY COMMON CARRIER SUBJECT TO THE INTERSTATE COMMERCE ACT, WHEREBY ANY
SUCH PROPERTY SHALL BY ANY DEVICE WHATEVER BE TRANSPORTED AT A LESS
RATE THAN THE PUBLISHED TARIFF RATE, OR WHEREBY ANY OTHER ADVANTAGE IS
GIVEN OR DISCRIMINATION IS PRACTICED.  THE LANGUAGE SEEMS TOO CLEAR TO
BE MISUNDERSTOOD.  IT IS ONLY THE CARRIER, OR SOMEONE ACTING IN ITS
BEHALF, WHO CAN GIVE OR GRANT A CONCESSION.  IT IS ONLY THE SHIPPER, OR
SOMEONE ACTING IN HIS BEHALF, WHO CAN RECEIVE OR SOLICIT ONE.  THE
CORPORATION WHO SHALL KNOWINGLY OFFER, GRANT, OR GIVE, OR SOLICIT,
ACCEPT, OR RECEIVE ANY SUCH REBATE, CONCESSION OR DISCRIMINATION" SHALL
BE DEEMED GUILTY OF A MISDEMEANOR AND PUNISHED BY FINE.  AS AMENDED, IT
IMPOSES A FURTHER PUNISHMENT BY FINE OR IMPRISONMENT UPON ANY OFFICER
OF A CORPORATION OR ANY PERSON "ACTING FOR OR EMPLOYED BY" ANY
CORPORATION, WHO IS CONVICTED OF VIOLATING THE PROVISIONS OF THE ACT. 
UNTIL THE PRESENT TIME NO ONE HAS SUPPOSED THAT A THIRD PARTY WHO IS
NEITHER CARRIER NOR SHIPPER AND NEITHER FURNISHES NOR RECEIVES
TRANSPORTATION SERVICE, IN MAKING A BUSINESS DEAL WITH A MAN WHO
HAPPENS TO BE A SHIPPER OVER AN INTERSTATE CARRIER'S LINE, MAY RENDER
HIMSELF LIABLE CRIMINALLY IF, AND MERELY BECAUSE, THE RESULT OF HIS
TRANSACTION WILL BE BENEFICIAL WHEN RECKONED UP IN THE YEAR'S PROFIT
AND LOSS STATEMENT OF THE OTHER PARTY TO THE TRANSACTION. 

THERE SEEMS TO HAVE BEEN SOME QUESTION, ALTHOUGH IT IS HARD TO
UNDERSTAND WHY, WHETHER THE PENAL PROVISIONS OF THE ACT APPLIED TO A
SHIPPER OR HIS AGENTS.  WHEN THE ACT WAS AMENDED BY THE HEPBURN ACT THE
PHRASE "EVERY PERSON OR CORPORATION" WAS SUPPLEMENTED BY AN
EPEXEGETICAL CLAUSE "WHETHER CARRIER OR SHIPPER."  THE LEGISLATIVE
RECORD SHOWS THAT THE AMENDMENT WAS INTENDED TO MAKE SURE THAT SHIPPERS
WHO RECEIVED REBATES SHOULD BE GUILTY EQUALLY WITH CARRIERS WHO GAVE
THEM.  IT HAD NO OTHER PURPOSE. 

EVERY DECISION APPLYING THE RELEVANT PROVISIONS OF THE INTERSTATE
COMMERCE ACT AND THE ELKINS ACT HAS TURNED UPON THE FACT THAT SOMEONE
FURNISHING A SERVICE OF TRANSPORTATION COVERED BY A TARIFF HAS REMITTED
A PART OF THE TARIFF CHARGE, OR HAS RENDERED A FREE SERVICE, OR A
SERVICE BELOW COST TO SOME SHIPPERS WHICH OTHERS DID NOT ENJOY; AND
WHERE ONE NOT A CARRIER HAS BEEN HELD GUILTY OF A VIOLATION OF THE ACT
IT HAS BEEN BECAUSE HE RETURNED TO THE SHIPPER, THROUGH ONE PERFORMING
A PART OF THE TRANSPORTATION SERVICE COVERED BY THE CARRIER'S TARIFF,
PART OF THE PUBLISHED RATE, OR HAS INDUCED THE CARRIER TO PERFORM A
SERVICE FOR THE SHIPPER COVERED BY THE TARIFF AT LESS THAN THE
PUBLISHED RATE, OR HAS INDUCED THE CARRIER TO PERFORM A TRANSPORTATION
SERVICE FOR A SHIPPER TO WHICH THE SHIPPER WAS NOT ENTITLED UNDER THE
PUBLISHED TARIFF AND WHICH, THEREFORE, THE CARRIER FAILED TO PERFORM
FOR OTHERS. 

THE DISTRICT COURT, SENSIBLE OF THIS UNBROKEN LINE OF AUTHORITY,
THOUGHT IT NECESSARY TO ATTRIBUTE THE PROPOSED PAYMENTS IN SOME WAY TO
UNION PACIFIC.  TO REACH THIS RESULT, IT HELD THAT IN THE TERMINAL
ENTERPRISE UNION PACIFIC AND KANSAS CITY WERE JOINT ADVENTURERS. 
OBVIOUSLY THE CONCLUSION IS INCORRECT.  UNION PACIFIC WAS IN NO SENSE A
PARTNER AND DID NOT STAND TO MAKE A PROFIT FROM THE CONDUCT OF THE
ENTERPRISE.  IT WAS A LESSEE OF A PART OF THE PROPERTY FOR ITS FREIGHT
YARD AT AN ADEQUATE RENTAL.  IT WAS THE OWNER OF BONDS LAWFULLY
ACQUIRED, AND, AS SUCH, DEALT AT ARM'S LENGTH WITH THE CITY.  ALTHOUGH
THE GOVERNMENT SEEKS TO SUSTAIN THE CONCLUSION OF THE DISTRICT COURT
THIS COURT APPARENTLY DISCARDS IT AS UNJUSTIFIABLE. 

IN THE SECOND PLACE, THE DISTRICT COURT HELD THAT UNION PACIFIC AND
THE CITY WERE IN A CONSPIRACY TO GRANT COMPENSATION TO PROSPECTIVE
TENANTS.  BUT THIS IS NOT EQUIVALENT TO FINDING THAT THE PURPOSE OF THE
CONSPIRACY WAS TO GRANT TRANSPORTATION TO THESE TENANTS AT LESS THAN
THE TARIFF RATES OF UNION PACIFIC.  INASMUCH AS IT IS CONCEDED THAT
THERE WAS NO PURPOSE TO GRANT ANY SHIPPER ANY SERVICE NOT GRANTED TO
OTHERS, OR TO GIVE ANY SHIPPER A REBATE FROM THE PUBLISHED TARIFF
RATES, IT SEEMS PLAIN THAT THE LATTER SORT OF CONSPIRACY IS NOT MADE
OUT. 

FINALLY, THE DISTRICT COURT SOUGHT TO SPELL OUT A FINANCIAL
CONTRIBUTION BY UNION PACIFIC FOR THE BENEFIT OF PROPOSED TENANTS BY
WHAT IT DENOMINATED THE WAIVER OF THE LIEN OF THE BONDS HELD BY THE
RAILROAD ON THE TERMINAL PROPERTY.  AN EXAMINATION OF THE DECISION OF
THE SUPREME COURT OF KANSAS  FN4  MAKES IT CLEAR THAT, UNDER THE LAW OF
THAT STATE, THE RAILROAD HAD NO LIEN, IN ANY PROPER SENSE OF THE TERM. 
THE STATE COURT HELD THAT THE OBLIGATION OF THE CITY UNDER THE BONDS
WAS TO DEVOTE THE NET PROFITS OF THE ENTERPRISE TO THE PAYMENT OF THE
PRINCIPAL AND INTEREST, BUT THAT IT WAS AT LIBERTY TO PAY ALL NECESSARY
OPERATING EXPENSES, INCLUDING THE EXPENSES OF OBTAINING TENANTS.  I DO
NOT UNDERSTAND THAT THE OPINION OF THIS COURT APPROVES THE FINDING AND
CONCLUSION OF THE DISTRICT COURT IN THIS RESPECT. 

THE RULING HERE IS MUCH BROADER, AND DOES NOT CONDITION VIOLATION OF
THE LAW ON ANY PAYMENT OR CONCESSION BY UNION PACIFIC.  IT IS THAT IF
THE CITY, WHICH IS NOT A SHIPPER, NOR A CARRIER, AND NOT A FURNISHER OF
ANY TRANSPORTATION SERVICE, IN DEALING WITH ITS OWN PROPERTY NOT
DEVOTED TO ANY SERVICE OF TRANSPORTATION, SEES FIT TO MAKE AN
ADVANTAGEOUS FINANCIAL ARRANGEMENT WITH A PROPOSED TENANT OF ITS
PROPERTY, THAT TRANSACTION, OTHERWISE LEGAL, AT ONCE BECOMES ILLEGAL
AND SUBJECTS THE CITY, OR ITS OFFICERS, TO CRIMINAL PENALTIES AND TO AN
INJUNCTION IF IT HAPPENS THAT THE PARTY WITH WHOM IT DEALS BECOMES, IN
VIRTUE OF THE TRANSACTION, A SHIPPER OVER THE LINES OF AN INTERSTATE
CARRIER, AND IS BENEFITED BY THE TRANSACTION.  THE DISTINCTION SOUGHT
TO BE MADE BETWEEN BENEFITS APPLICABLE TO TRANSPORTATION AND BENEFITS
GENERALLY SEEMS TO ME ILLUSORY.  THE COURT EXPRESSLY HOLDS THAT INTENT
IS IMMATERIAL; THAT IF THE RESULT IS ADVANTAGEOUS TO THE SHIPPER, A
REBATE, CONCESSION, OR DISCRIMINATION FROM THE TARIFFS OF THE CARRIER
HAS BEEN ACCOMPLISHED, WITHIN THE MEANING OF THE ELKINS ACT. 

I VENTURE TO THINK THAT NO ONE WILL BE MORE SURPRISED THAN THE
MEMBERS OF THE CONGRESS AT THE ATTRIBUTION OF THE STATUTORY PHRASE
"EVERY PERSON" WHO GIVES OR RECEIVES, GRANTS OR SOLICITS REBATES OR
DISCRIMINATORY SERVICE, TO STATES AND MUNICIPAL CORPORATIONS AND THEIR
OFFICERS WHO, IN PROMOTING LAWFUL MUNICIPAL PURPOSES, INCIDENTALLY
BRING ADDITIONAL BUSINESS TO AN INTERSTATE CARRIER.  WE KNOW THAT IT IS
A COMMON PRACTICE FOR CHAMBERS OF COMMERCE AND CITY AUTHORITIES TO
OFFER TO MANUFACTURING AND BUSINESS CONCERNS LANDS AND SITES ON
FAVORABLE TERMS, SUCH AS LOW PURCHASE PRICE, REDUCED RENTALS, EXEMPTION
FROM TAXATION FOR A GIVEN PERIOD, IN AN EFFORT TO INDUCE SUCH CONCERNS
TO LOCATE WITHIN THE LIMITS OF A MUNICIPALITY. 

WE KNOW THAT, IN ORDER TO INDUCE MEN TO MOVE THEIR PLANTS FROM ONE
LOCATION TO ANOTHER, IT IS A PRACTICAL NECESSITY TO OFFER THEM SOME
RECOMPENSE FOR THE EXPENSE INVOLVED AND FOR THE LOSS WHICH MAY RESULT
FROM DOING BUSINESS IN A NEW LOCATION.  UNDER THE DECISION NOW
ANNOUNCED, CITIZENS OR CITY OFFICIALS CONNECTED WITH SUCH A
TRANSACTION, THOUGH THEIR PURPOSE BE WHOLLY REMOTE FROM ANY BENEFIT TO
A RAILROAD, ARE GUILTY OF A CRIMINAL OFFENSE. 

WE ALSO KNOW THAT IN THE COMPETITIVE EFFORT OF RAILROADS TO OBTAIN
BUSINESS THEY HAVE ASSISTED MUNICIPALITIES TO ESTABLISH INDUSTRIES
ALONG THEIR LINES.  IT HAS NEVER BEEN THOUGHT THAT SUCH ACTIVITY ON THE
PART OF THE RAILROAD, WHERE IT GAVE NOTHING IN MONEY AND REBATED
NOTHING FROM ITS PUBLISHED TARIFFS IN SERVICE OR RATES, CONSTITUTED A
VIOLATION OF THE ELKINS ACT.  TO HOLD THAT, BY THIS STATUTE, CONGRESS
INTENDED TO PARALYZE LAWFUL EFFORT, WELL WITHIN THE POWERS CONFERRED BY
THE STATES ON THEIR MUNICIPALITIES, IN THE VIEW THAT SUCH EFFORT
CONSTITUTES A REBATE FROM A CARRIER'S TARIFF RATE, SEEMS TO ME TO PLACE
A FORCED AND UNREASONABLE CONSTRUCTION UPON THE WORDS OF THE ACT. 

THE OPINIONS OF THE COURT BELOW AND OF THIS COURT POINT OUT THAT, AS
A RESULT OF THE CONSUMMATION OF THE PLAN FOR A TERMINAL, UNION PACIFIC
EXPECTED TO CARRY GREATLY INCREASED TRAFFIC INTO AND OUT OF KANSAS CITY
AND THAT THIS INCREASE NECESSARILY WOULD INFLICT LOSSES UPON ITS
COMPETITORS.  BUT THE ELKINS ACT AND THE INTERSTATE COMMERCE ACT WERE
AIMED AT SPECIFIC ABUSES, AND WERE NOT GENERAL PROHIBITIONS OF ALL
FORMS OF COMPETITION BETWEEN CARRIERS OR LIMITATIONS ON THE INCREASE OF
A CARRIER'S TRAFFIC BY ANY SORT OF COMPETITION.  IN FACT, THE
CONGRESSIONAL POLICY IS TO FOSTER AND ENCOURAGE COMPETITION BETWEEN
RAILROADS, AND TO PROHIBIT AGREEMENTS OR CONSPIRACIES TO SUPPRESS IT.
FN5  IT IS COMMON KNOWLEDGE THAT CARRIERS CUSTOMARILY ADVERTISE THE
ADVANTAGES OF SITES LYING ALONG THEIR LINES IN THE HOPE OF ENCOURAGING
SHIPPERS TO LOCATE THEREON.  IT SEEMS TO ME THAT THE CIRCUMSTANCE SO
POINTEDLY NOTICED IS IRRELEVANT TO ANY QUESTION INVOLVED IN THIS CASE. 
OF COURSE, UNION PACIFIC WAS ACTUATED BY THE LEGITIMATE DESIRE OF
INCREASED TRAFFIC IN ALL ITS EFFORTS TOWARDS THE ESTABLISHMENT OF THE
TERMINAL.  THAT AVOWED MOTIVE WAS, IN MY JUDGMENT, INNOCENT AND
LAWFUL.  MOREOVER, IN TRUTH, THIS CONTROVERSY HAS ITS ROOTS IN THE
COMPETITION OF TWO CITIES, RATHER THAN THAT OF RAILROADS. 

2.  ASSUMING, AS THE OPINION DOES, THAT THE CITY AND ITS OFFICERS
WERE, WITHIN THE MEANING OF THE ACT, PERSONS "ACTING FOR" UNION
PACIFIC, THE PROOF FAILS TO DISCLOSE THAT THE SUM PROPOSED TO BE PAID
TO ANY PRODUCE MERCHANT IN CONNECTION WITH HIS MOVING TO THE NEW
TERMINAL WAS IN FACT MORE THAN FAIR COMPENSATION FOR LOSS OR WAS A
DISCRIMINATION AGAINST ANY OTHER TENANT.  THERE IS NO PROOF, AND INDEED
IT WOULD BE VERY DIFFICULT TO FURNISH ANY, THAT AT THE END OF ONE, TWO,
OR THREE YEARS OF BUSINESS AT THE NEW TERMINAL,  - CONSIDERING THE
ATTENDANT EXPENSE OF MOVING AND REESTABLISHING THE BUSINESS AT THE NEW
LOCATION, THE INCIDENT LOSS OF GOOD WILL AND CUSTOM, AND THE NECESSITY
OF FINDING NEW CUSTOM TO TAKE THE PLACE OF THAT LOST,  - THE BALANCE
SHEET OF ANY OF THE TENANTS WOULD DISCLOSE THAT HE WAS BETTER OFF THAN
IF HE HAD STAYED IN HIS OLD LOCATION.  AND IT WOULD BE EVEN MORE
DIFFICULT TO DETERMINE THAT A SUM PAID HIM TO COVER SUCH LOSS AND
DAMAGE IS REFLECTED UPON HIS BOOKS IN THE TRANSPORTATION CHARGES PAID
BY HIM, RATHER THAN IN THE OTHER ITEMS OF EXPENSE CONNECTED WITH HIS
BUSINESS.  HOW SHALL ANY SUCH ALLOCATION BE MADE?  NONE SUCH IS
NECESSARY WHERE THE CARRIER ITSELF, OR SOMEONE REPRESENTING IT, GRANTS
A CONCESSION FROM THE PUBLISHED RATE OR RENDERS A SERVICE NOT
COMPREHENDED IN ITS TARIFF.  IN SUCH CASE THE FACT SPEAKS FOR ITSELF. 
IN THIS CASE THE COURT ASSUMES THE FACT AND, BY A BLANKET AND SWEEPING
DECREE, BANS ANY COMPENSATION, HOWEVER JUST, TO ANYONE FOR REMOVING
FROM AN OLD LOCATION TO THE NEW TERMINAL ON THE SUSPICION THAT THE
PAYEE MAY HAVE SOME ADVANTAGE OVER ANOTHER TENANT WHO DID NOT INCUR ANY
SUCH EXPENSE.  THUS THE DECREE WILL RENDER IT IMPOSSIBLE FOR KANSAS
CITY TO MAKE WHAT IT DEEMS LEGITIMATE AND PROPER ARRANGEMENTS FOR THE
PROSECUTION OF A BUSINESS ENTERPRISE IN NO SENSE CONSISTING OF THE
SERVICE OF TRANSPORTATION.  IT SEEMS CLEAR THAT CONGRESS NEVER HAD ANY
SUCH INTENT IN ADOPTING THE ELKINS ACT.  THIS IS TO REACH INTO THE
PECULIARLY LOCAL AFFAIRS OF THE STATES AND TO LAY THE DEAD HAND UPON
THE OTHERWISE LAWFUL ACTIVITIES OF STATES AND THEIR SUBDIVISIONS. 
CERTAINLY A FAR MORE SPECIFIC MANDATE SHOULD BE REQUIRED TO PERSUADE US
THAT CONGRESS HAD ANY SUCH PURPOSE. 

3.  ANOTHER FEATURE OF THE DECREE SEEMS TO ME TO BE EQUALLY
UNJUSTIFIED.  THE RECORD DISCLOSES THAT THE CITY ADOPTED A STANDARD
FORM OF LEASE WHICH FIXED A UNIFORM RENTAL PER UNIT OF SPACE.  IN ORDER
TO FILL THE BUILDING PROMPTLY, THIS LEASE PROVIDED THAT FOR THE FIRST
THREE MONTHS THE MONTHLY RENTAL SHOULD BE ONE-THIRD OF THE STANDARD
MONTHLY RENTAL.  THUS A TENANT WHO, AFTER THE THREE MONTHS, WOULD PAY
$150 A UNIT WOULD GET THE USE OF THAT UNIT FOR THE FIRST THREE MONTHS
FOR $50.  IT IS AGAIN COMMON KNOWLEDGE THAT, IN A COMPETITIVE
SITUATION, THE OWNER OFTEN HAS TO MAKE RENTAL CONCESSIONS FOR A BRIEF
TIME AT THE BEGINNING OF THE LEASE TERM.  THERE IS NOTHING UNLAWFUL
ABOUT THIS AND THE DECISION OF THE SUPREME COURT OF KANSAS SANCTIONS
IT.  THE COURT BELOW SWEPT ASIDE ALL THESE ARRANGEMENTS AND, ALTHOUGH
IT FOUND "THE PRESENT RENTAL RATES AND THE CONSEQUENT RETURN TO THE
CITY ARE NOT SO LOW THAT THE USE OF THE FOOD TERMINAL BY TENANTS IN
INTERSTATE COMMERCE AT THOSE RENTALS WILL AMOUNT TO A GIFT OF ANY PART
OF THE VALUE OF THE USE OF THE FOOD TERMINAL TO THE TENANT SHIPPERS,"
IT NEVERTHELESS REQUIRED THAT THE RENTALS MUST BE SUCH AS TO ALLOW A
FAIR RETURN TO THE CITY ON THE TOTAL VALUE OF THE PREMISES INCLUDING
THE PRODUCT OF THE MONEY GRANTED BY P.W.A. AND THE LAND ACQUIRED BY
FREE GIFT.  UNDER THE LAW, THE CITY WAS AT LIBERTY TO TURN THIS LAND TO
ACCOUNT IN SUCH MANNER AND AT SUCH RATE OF RETURN AS IT MIGHT SEE FIT. 
WHILE THE OPINION OF THE COURT HOLDS THIS PROVISION OF THE DECREE
ERRONEOUS, IT SUBSTITUTES WHAT I THINK AN EQUALLY IMPROPER RULE.  THE
CITY IS TO BE PROHIBITED FROM LEASING ITS OWN PUBLICLY OWNED PROPERTY,
IN THE PROSECUTION OF AN ENTERPRISE WHICH IT DEEMS BENEFICIAL TO THE
COMMUNITY, AT RATES IT DEEMS PROPER AND RATES WHICH ARE OTHERWISE
WITHIN ITS LAWFUL POWER.  IT IS TOLD THAT IT MUST GET A FAIR RENTAL
VALUE, AND VARIOUS CRITERIA OF FAIRNESS ARE SUGGESTED.  THUS, THE COURT
HOLDS THAT CONGRESS INTENDED IN SUCH A SITUATION TO SHACKLE THE
MUNICIPAL ARM OF A SOVEREIGN STATE, FOR THE INDEFINITE FUTURE, AND
COMPEL IT TO CONDUCT ITS BUSINESS CONTRARY TO WHAT THE LAW OF ITS OWN
STATE PERMITS.  THIS RESULT CANNOT BE JUSTIFIED IN THE GUISE OF
PREVENTING AN ALLEGED REBATE OF TARIFF RATES BY A CARRIER, UNCONNECTED
WITH AND NEITHER CONTROLLED BY THE CITY NOR EXERTING ANY LEGAL CONTROL
OVER THE CITY, WHOSE ONLY FUNCTION IS THAT OF SERVING THOSE WHO USE THE
CITY'S FACILITIES. 

I AM OF OPINION THAT THE BILL SHOULD HAVE BEEN DISMISSED. 

FN1  STATE ES REL. BECK V. KANSAS CITY, 149 KAN. 252; 86 P.2D 476. 

FN2  STATE EX REL. PARKER V. KANSAS CITY, 151 KAN. 2; 98 P.2D 101. 

FN3  49 U.S.C. SEC. 41(1). 

FN4  NOTE 2, SUPRA. 

FN5  UNITED STATES V. TRANS-MISSOURI FREIGHT ASSOCIATION, 166 U.S.
290, 312, 325. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS JOIN IN THIS OPINION. 
..END :













KLAXON CO. V. STENTOR CO., 313 U.S. 487 


NO. 741.  ARGUED MAY 1, 2, 1941.  - DECIDED JUNE 2, 1941.  - 115 F.2D
268, REVERSED. 


1.  IN DIVERSITY OF CITIZENSHIP CASES, THE FEDERAL COURTS, WHEN
DECIDING QUESTIONS OF CONFLICT OF LAWS, MUST FOLLOW THE RULES
PREVAILING IN THE STATES IN WHICH THEY SIT.  ERIE R. CO. V. TOMPKINS,
304 U.S. 64.  P. 496. 

2.  IN AN ACTION IN A FEDERAL COURT IN DELAWARE, FOR BREACH OF A NEW
YORK CONTRACT, THE APPLICABILITY OF A NEW YORK STATUTE DIRECTING THAT
INTEREST BE ADDED TO THE RECOVERY IN CONTRACT CASES IS A QUESTION OF
CONFLICT OF LAWS, WHICH THE FEDERAL COURT MUST DETERMINE BY THE LAW OF
DELAWARE.  P. 496. 

3.  THE FULL FAITH AND CREDIT CLAUSE DOES NOT REQUIRE THAT A STATE,
CONTRARY TO ITS OWN POLICY, SHALL GIVE EFFECT IN ACTIONS BROUGHT
LOCALLY ON CONTRACTS MADE IN OTHER STATES, TO LAWS OF THOSE STATES
RELATING, NOT TO THE VALIDITY OF SUCH CONTRACTS, BUT TO THE RIGHT TO
ADD INTEREST TO THE RECOVERY AS AN INCIDENTAL ITEM OF DAMAGES.  SEC.
480 N.Y. CIV. PRAC.  ACT.  JOHN HANCOCK MUTUAL LIFE INS. CO. V. YATES,
299 U.S. 178, DISTINGUISHED.  P. 497. 

KLAXON COMPANY V. STENTOR ELECTRIC MANUFACTURING CO., INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 312 U.S. 674, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED FOR BREACH OF A CONTRACT, 30 F.SUPP.  425.  THE REVIEW IN
THIS COURT WAS LIMITED TO THE QUESTION WHETHER SEC. 480 OF THE NEW YORK
CIVIL PRACTICE ACT IS APPLICABLE TO AN ACTION IN THE FEDERAL COURT IN
DELAWARE. 

AND REMEDY RATHER THAN TO SUBSTANTIVE RIGHT.  FUNKHOUSER V. J.B.
PRESTON CO., 290 U.S. 163; STANDARD OIL CO. V. UNITED STATES, 107 F.2D
402, 418. 

THIS COURT'S DECISION IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64, AND
THE ADOPTION OF THE FEDERAL RULES OF CIVIL PROCEDURE, MAKE IT OF
PARAMOUNT IMPORTANCE THAT THE DISTINCTION BETWEEN SUBSTANTIVE LAW AND
PROCEDURE BE KEPT CLEAR. 

THE NEW YORK LEGISLATURE REGARDED SEC. 480 AS A REGULATION OF ITS OWN
ADJECTIVE LAW AND NOT AS A GRANT OF SUBSTANTIVE RIGHT ENTITLED TO
ENFORCEMENT IN FOREIGN JURISDICTIONS.  SEE MATTER OF 1610 P, INC., 168
MISC. 918; CF., FIDELITY-PHENIX FIRE INS. CO. V. CORTEZ CIGAR CO., 92
F.2D 882; KLINE BROS. V. ROYAL INS. CO., 192 F. 378. 

THERE APPEARS TO BE NO DELAWARE DECISION AS TO WHETHER INTEREST IS
SUBSTANTIVE OR PROCEDURAL.  IT IS DOUBTFUL WHETHER SUCH A DECISION
WOULD BE OF BINDING FORCE ON A FEDERAL COURT SITTING IN DELAWARE.  CF.,
RUHLIN V. NEW YORK LIFE INS. CO., 304 U.S. 202; E.E. CHEATHAM, SOURCES
OF RULES FOR CONFLICT OF LAWS (1941), 89 U. OF PA. L.R. 430, 446-7;
NOTE (1939), 52 HARV. L.R. 1002. 

BY THE PREPONDERANCE OF AUTHORITY THE MATTER OF INTEREST IS DEEMED
PROCEDURAL AND GOVERNED BY THE LEX FORI.  BOARD OF COUNTY COMMISSIONERS
V. UNITED STATES, 308 U.S. 343, 349, 350; STANDARD OIL CO. V. UNITED
STATES, 107 F.2D 402; GODDARD V. FOSTER, 17 WALL.  123; MATHER V.
STOKELY, 218 F. 764; GEORGE M. JONES CO. V. CANADIAN NAT. RY. CO., 14
F.2D 852; MITCHELL V. REOLDS FARMS CO., 256 N.W. 445, 449; BUTTE, A. &
P. RY. CO. V. UNITED STATES, 61 F.2D 587; MASSACHUSETTS BENEFIT ASSN.
V. MILES, 137 U.S. 689. 

INCONVENIENCE AND DELAY IN THE TRIAL OF CASES INVOLVING CONFLICT OF
LAWS WILL RESULT FROM A DETERMINATION THAT INTEREST IS SUBSTANTIVE;
CONTROLLING CONSIDERATIONS OF CONVENIENCE AND FLEXIBILITY IN JUDICIAL
ADMINISTRATION REQUIRE THAT INTEREST BE CLASSIFIED AS PROCEDURAL. 
CLARK, PROCEDURAL ASPECTS OF THE NEW STATE INDEPENDENCE (1940), 8 GEO.
WASH. L. REV. 1230, 1234; "THE TOMPKINS CASE AND THE FEDERAL RULES"
(1941), 24 J. AM. JURID.  SOC.  158, 160. 

IN EVERY SUCH CASE IN THE FEDERAL DISTRICT COURT ON A CAUSE OF ACTION
ARISING ELSEWHERE THAN AT THE FORUM THE COURT MUST DETERMINE THE LEX
LOCI AS A STEP PRELIMINARY TO THE AWARD OR DENIAL OF INTEREST AS WELL
AS THE RATE THEREOF AND THE PERIOD COVERED THEREBY.  THIS MUST BE DONE
EVEN THOUGH THE LOCUS OF THE CAUSE OF ACTION MAY BE UNIMPORTANT FOR ANY
OTHER PURPOSE IN THE CASE. 

THE CONCLUSION OF LAW AS TO THE CONTROLLING LOCUS MUST BE BASED ON
PROOF OF FACTS FREQUENTLY DIFFICULT TO ASCERTAIN, E.G., IN A CONTRACT
ACTION, THE INTENTION OF THE PARTIES AS TO WHERE PERFORMANCE OF THE
OBLIGATION INVOLVED SHOULD TAKE PLACE. 

IT WOULD BE INTOLERABLE TO HAVE THE LEX LOCI DETERMINED AS IT WAS IN
THE CASE AT BAR.  HERE THE PLACE OF PERFORMANCE WAS NOT CONSIDERED AN
ISSUE IN THE CASE UNTIL AFTER THE VERDICT WAS RENDERED.  THE DISTRICT
COURT CONSIDERED THAT INTEREST WAS GOVERNED BY THE LEX LOCI
CONTRACTUS.  IT REMAINED FOR THE CIRCUIT COURT TO FIND THAT THE LAW OF
THE PLACE OF PERFORMANCE CONTROLLED THE QUESTION.  UNDER THESE
CIRCUMSTANCES, NATURALLY, NO EVIDENCE WAS OFFERED BY PETITIONER TO SHOW
THAT NEW YORK WAS NOT THE INTENDED PLACE OF PERFORMANCE.  THE
CONCLUSION OF THE COURTS BELOW THAT NEW YORK WAS THE PLACE OF
PERFORMANCE OF PETITIONER'S OBLIGATION TO USE ITS BEST EFFORTS TO
EXPLOIT THE PATENTS RESTS ON NO FACTUAL SUPPORT OTHER THAN COLLATERAL
EVIDENCE OFFERED ON OTHER ISSUES. 

THE LOCUS WILL OFTEN BE A DISTANT STATE.  ITS STATUTE BOOKS MAY BE
UNAVAILABLE AT THE FORUM, ESPECIALLY IF, AS HERE, THE RELEVANT
PROVISION IS FOUND IN A CODE OF PROCEDURE.  OR THERE MAY BE NO
STATUTORY PROVISION WHATEVER, IN WHICH EVENT THE COURT MUST EXAMINE THE
STATE DECISIONS INCLUDING THOSE OF THE INFERIOR COURTS IF THE MATTER
HAS NOT BEEN SETTLED BY THE STATE SUPREME COURT.  SEE WEST V. AMERICAN
TEL. & TEL. CO., 311 U.S. 223. 

DELAY WILL BE THE CONCOMITANT OF THE RESEARCH AND INQUIRY THUS
NECESSITATED.  MOREOVER, AS THE LAW OF INTEREST IN MANY STATES IS
OBSCURE AND CONFUSED, FREQUENT APPEALS WITH RESPECT TO THE DENIAL OR
AWARD OF INTEREST PURSUANT TO STATE LAW MUST BE EXPECTED. 

A COLLATERAL EFFECT OF A DETERMINATION THAT INTEREST IS "SUBSTANTIVE"
IS TO CAST DOUBT UPON THE VALIDITY OF CERTAIN OF THE FEDERAL RULES OF
CIVIL PROCEDURE.  CLARK, "THE TOMPKINS CASE AND THE FEDERAL RULES," 24
J. AM. JURID.  SOC.  158, 161. 

AN INDEPENDENT FEDERAL RULE REGARDING THE ALLOWANCE OF INTEREST MAY
BE PROMULGATED EITHER BY CONGRESS, OR BY THIS COURT, OR BY THE DISTRICT
COURTS. 

PENDING THE ADOPTION OF SUCH A RULE OR AS AN ALTERNATIVE THERETO, THE
DISTRICT COURTS ARE GUIDED BY THE PRINCIPLES AS TO THE ALLOWANCE OF
INTEREST WHICH THE FEDERAL COURTS THEMSELVES HAVE FORMULATED.  SEE
JONES V. FOSTER, 70 F.2D 200; COMPANHIA DE NAVAGACAO LLOYD BRASILEIRO
V. C.G. BLAKE CO., 34 F.2D 616. 

NO MATTER BY WHAT LAW THE QUESTION IS TESTED, THE COURTS BELOW WERE
RIGHT TO APPLY THE NEW YORK STATUTE IN ADDING INTEREST TO THE AMOUNT OF
THE VERDICT.  UNDER ERIE R. CO. V. TOMPKINS, 304 U.S. 64, THE DELAWARE
CONFLICTS RULE GOVERNS.  THE RULE IS (RESTATEMENT, CONFLICT OF LAWS,
SEC. 584; ACCORD, 3 BEALE, CONFLICT OF LAWS, SEC. 584.2, P. 1601) THAT
"THE COURT AT THE FORUM DETERMINES ACCORDING TO ITS OWN CONFLICT OF
LAWS RULE WHETHER A GIVEN QUESTION IS ONE OF SUBSTANCE OR PROCEDURE." 
THE DOCTRINE OF CONFLICTS, HOWEVER, IS "PURELY A QUESTION OF LOCAL
COMMON LAW."  KRYGER V. WILSON, 242 U.S. 171, 176; CF., 1 BEALE,
CONFLICT OF LAWS, X, AND SEC. 5.1, P. 51.  WHEN THIS CONFLICT QUESTION
IS PRESENTED, THE FEDERAL COURT IS BOUND TO DECIDE IT ACCORDING TO THE
LAW OF CONFLICTS OF THE STATE IN WHICH IT IS SITTING.  SAMPSON V.
CHANNELL, 110 F.2D 754, 760-2, CERT. DEN., 310 U.S. 650; WAGGAMAN V.
GENERAL FINANCE CO., 36 F.SUPP.  85, 87; GOODRICH, CONFLICT OF LAWS, 2D
ED., P. 24; COMMENT, 4 FEDERAL RULES SERVICE CASES 1.3, CASE 1. 

THE DELAWARE CONFLICTS RULE IS THAT DAMAGES FOR BREACH OF CONTRACT
AND THE MEASURE THEREOF ARE GOVERNED BY THE LEX LOCI - IN OUR CASE THE
LAW OF NEW YORK.  MACKENZIE V. OMAR, 4 HARR.  (DEL.)  435, 457;
CANADIAN INDUSTRIAL ALCOHOL CO. V. NELSON, 8 HARR.  (DEL.)  26, 58. 

MOREOVER, IT HAS BEEN HELD IN DELAWARE THAT THE RATE OF INTEREST IS
GOVERNED BY THE LEX LOCI.  BARSTOW V. THATCHER, 3 HOUST.  (DEL.)  32;
MACKENZIE V. OMAR, 4 HARR.  (DEL.)  435, 458-9. 

IT FOLLOWS THAT THE RIGHT TO INTEREST AS AN ELEMENT OF DAMAGES IS
SIMILARLY GOVERNED.  CF., CURTIS V. CAMPBELL, 76 F.2D 84, CERT. DEN.,
295 U.S. 737. 

THE SAME RESULT WOULD HAVE BEEN REACHED IF THE COURTS BELOW HAD GONE
DIRECTLY TO THE NEW YORK LAW, SINCE THE MEASURE OF DAMAGES AND THE
RIGHT TO INTEREST ARE SUBSTANTIVE UNDER NEW YORK LAW.  DYKE V. ERIE R.
CO., 45 N.Y. 113, 118; KEIFER V. GRAND TRUNK R. CO., 12 APP. DIV. 28;
LOUCKS V. STANDARD OIL CO., 224 N.Y. 99, 109; PRESTON CO. V.
FUNKHOUSER, 261 N.Y. 140, 145. 

THE CLASSIC DISTINCTION IS BETWEEN THE NATURE, THE OBLIGATION, AND
THE INTERPRETATION OF A CONTRACT, ALL OF WHICH ARE THE SUBSTANCE
(LIVERPOOL & GREAT WESTERN STEAM CO. V. PHENIX INS. CO., 129 U.S. 397,
458), AND "PROCEDURAL" MATTERS - SUCH AS, FOR EXAMPLE, THE FORM OF THE
ACTION, AS TO WHETHER IT SHALL BE ASSUMPSIT, COVENANT, OR DEBT; ALL
PROCESS, BOTH MESNE AND FINAL; PLEADINGS; AND RULES OF EVIDENCE. 
PRITCHARD V. NORTON, 106 U.S. 124, 133-5. 

THE DELAWARE CONFLICTS RULE, THAT THE MEASURE OF DAMAGES AND INTEREST
ARE SUBSTANTIVE AND REFERABLE TO THE LEX LOCI, IS SUPPORTED BY THE
WEIGHT OF FEDERAL AND OTHER AUTHORITY.  RESTATEMENT, CONFLICT OF LAWS,
SEC. 413; 2 BEALE, CONFLICT OF LAWS, SEC. 412.1, P. 1332; CHESAPEAKE &
OHIO RY. V. KELLY, 241 U.S. 485; ROBERTSON, CHARACTERIZATION IN THE
CONFLICT OF LAWS (HARV. UNIV.  PRESS, 1940) 270. 

ON THE RIGHT TO INTEREST AS PART OF THE DAMAGES THE FOLLOWING FEDERAL
DECISIONS HOLD THAT THE LEX LOCI GOVERNS.  FREYGANG V. VERA CRUZ & P.R.
CO., 154 F. 640; WYNNE V. MCCARTHY, 97 F.2D 964, 970; U.S. V. GARLAND,
271 F. 14; CF., CURTIS V. CAMPBELL, 76 F.2D 84; BELL V. LAMBORN, 2 F.2D
205. 

THE PREVAILING RULE IS THAT THE LEX LOCI GOVERNS.  SCUDDER V. UNION
NATIONAL BANK OF CHICAGO, 91 U.S. 406; PANA V. BOWLER, 107 U.S. 529,
546; SCOTLAND COUNTY V. HILL, 132 U.S. 107, 117; SLOSS-SHEFFIELD STEEL
& IRON CO. V. TACONY IRON CO., 183 F. 645, AFF'D 188 F. 896; 91
AMERICAN STATE REPORTS 741; RESTATEMENT, CONFLICT OF LAWS, SEC. 418; 2
BEALE, CONFLICT OF LAWS, SEC. 418.1, P. 1335; 16 AM. & ENG. ENCYC.  OF
LAW (2D ED.), 1090; NOTE, CONFLICT OF LAWS - INTEREST AS DAMAGES - WHAT
LAW GOVERNS, 25 MICH. L. REV. 537, 538; NOTE, LAW GOVERNING THE MEASURE
OF DAMAGES FOR BREACH OF CONTRACT, 78 U. OF PA. L. REV. 640, 644. 

SOUND REASON AND POLICY SUPPORT THE RULE THAT THE RIGHT TO INTEREST
IS GOVERNED BY THE LEX LOCI.  WESTERN UNION TEL. CO. V. BROWN, 234 U.S.
542, 547; CF., SLATER V. MEXICAN NAT. RY., 194 U.S. 120; CURTIS V.
CAMPBELL, 76 F.2D 84, 85; RESTATEMENT, CONFLICT OF LAWS, P. 699. 

SINCE THE NEW YORK STATUTE IS HELD SUBSTANTIVE BY CONTROLLING NEW
YORK DECISIONS, THE COURTS BELOW WOULD, IN ANY EVENT, HAVE BEEN BOUND
TO APPLY THAT STATUTE AND ADD INTEREST TO THE AMOUNT OF THE VERDICT,
UNDER THE FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION. 

BRADFORD ELEC.  CO. V. CLAPPER, 286 U.S. 145, 155; JOHN HANCOCK INS.
CO. V. YATES, 299 U.S. 178, 183. 

EVEN BEFORE THE AMENDMENT OF SEC. 480, N.Y. CIV. PR. ACT, IT HAD BEEN
HELD THAT THE MEASURE OF DAMAGES AND THE RIGHT TO INTEREST WERE OF
SUBSTANCE.  THE AMENDMENT ACTED UPON A SUBSTANTIVE RIGHT - THE
OBLIGATION OF THE CONTRACT; IT ACCOMPLISHED ITS PURPOSE BY MAKING
MANDATORY THE ADDITION OF INTEREST TO DAMAGES FOR BREACH OF CONTRACT,
WHETHER THERETOFORE LIQUIDATED OR UNLIQUIDATED.  STENTOR ELECTRIC MFG.
CO. V. KLAXON CO., 30 F.SUPP.  432; PRESTON CO. V. FUNKHOUSER, 261 N.Y.
140; FUNKHOUSER V. J.B. PRESTON CO., 290 U.S. 163. 

THE CONSTRUCTION PLACED UPON SEC. 480 BY THE NEW YORK COURTS, AND THE
NEW YORK RULE THAT THE RIGHT TO INTEREST FOR BREACH OF CONTRACT IS A
SUBSTANTIVE RIGHT, ARE PART OF THE STATUTE, AS MUCH SO AS THOUGH THEY
WERE FOUND IN APPROPRIATE WORDS IN ITS TEXT.  GEORGIA RY. & ELEC.  CO.
V. DECATUR, 295 U.S. 165, 170; WEST V. AMERICAN TEL. & TEL. CO., 311
U.S. 223. 

THE STATUTE AS THUS CONSTRUED IS A SUBSTANTIVE PROVISION OF EVERY NEW
YORK CONTRACT TO WHICH IT IS APPLICABLE, SUCH AS THE CONTRACT IN THE
CASE AT BAR.  THE CONTRACTUAL RIGHTS ESTABLISHED THEREBY ARE RIGHTS OF
PROPERTY, ENFORCEABLE WHEREVER THE CONTRACT IS SUED UPON.  LOUCKS V.
STANDARD OIL CO., 224 N.Y. 99; CURTIS V. CAMPBELL, 76 F.2D 84. 

TO DEPRIVE A PARTY OF THE BENEFIT OF SUCH PROPERTY RIGHT BY REFUSING
TO GIVE FULL FAITH AND CREDIT TO THE STATUTE, WOULD BE A VIOLATION OF
THE CONSTITUTIONAL RIGHTS OF SUCH PARTY.  BRADFORD ELEC.  CO. V.
CLAPPER, 286 U.S. 145; JOHN HANCOCK INS. CO. V. YATES, 299 U.S. 178;
BRODERICK V. ROSNER, 294 U.S. 629; CF. SAMPSON V. CHANNELL, 110 F.2D
754, 759. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION IN THIS CASE IS WHETHER IN DIVERSITY CASES THE
FEDERAL COURTS MUST FOLLOW CONFLICT OF LAWS RULES PREVAILING IN THE
STATES IN WHICH THEY SIT.  WE LEFT THIS OPEN IN RUHLIN V. NEW YORK LIFE
INSURANCE CO., 304 U.S. 202, 208, N. 2.  THE FREQUENT RECURRENCE OF THE
PROBLEM, AS WELL AS THE CONFLICT OF APPROACH TO THE PROBLEM BETWEEN THE
THIRD CIRCUIT'S OPINION HERE AND THAT OF THE FIRST CIRCUIT IN SAMPSON
V. CHANNELL, 110 F.2D 754, 759-62, LED US TO GRANT CERTIORARI. 

IN 1918, RESPONDENT, A NEW YORK CORPORATION, TRANSFERRED ITS ENTIRE
BUSINESS TO PETITIONER, A DELAWARE CORPORATION.  PETITIONER CONTRACTED
TO USE ITS BEST EFFORTS TO FURTHER THE MANUFACTURE AND SALE OF CERTAIN
PATENTED DEVICES COVERED BY THE AGREEMENT, AND RESPONDENT WAS TO HAVE A
SHARE OF PETITIONER'S PROFITS.  THE AGREEMENT WAS EXECUTED IN NEW YORK,
THE ASSETS WERE TRANSFERRED THERE, AND PETITIONER BEGAN PERFORMANCE
THERE ALTHOUGH LATER IT MOVED ITS OPERATIONS TO OTHER STATES. 
RESPONDENT WAS VOLUNTARILY DISSOLVED UNDER NEW YORK LAW IN 1919.  TEN
YEARS LATER IT INSTITUTED THIS ACTION IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF DELAWARE, ALLEGING THAT PETITIONER HAD FAILED
TO PERFORM ITS AGREEMENT TO USE ITS BEST EFFORTS.  JURISDICTION RESTED
ON DIVERSITY OF CITIZENSHIP.  IN 1939 RESPONDENT RECOVERED A JURY
VERDICT OF $100,000, UPON WHICH JUDGMENT WAS ENTERED.  RESPONDENT THEN
MOVED TO CORRECT THE JUDGMENT BY ADDING INTEREST AT THE RATE OF SIX
PERCENT FROM JUNE 1, 1929, THE DATE THE ACTION HAD BEEN BROUGHT.  THE
BASIS OF THE MOTION WAS THE PROVISION IN SEC. 480 OF THE NEW YORK CIVIL
PRACTICE ACT DIRECTING THAT IN CONTRACT ACTIONS INTEREST BE ADDED TO
THE PRINCIPAL SUM "WHETHER THERETOFORE LIQUIDATED OR UNLIQUIDATED." 
FN1  THE DISTRICT COURT GRANTED THE MOTION, TAKING THE VIEW THAT THE
RIGHTS OF THE PARTIES WERE GOVERNED BY NEW YORK LAW AND THAT UNDER NEW
YORK LAW THE ADDITION OF SUCH INTEREST WAS MANDATORY.  30 F.SUPP.  425,
431.  THE CIRCUIT COURT OF APPEALS AFFIRMED, 115 F.2D 268, AND WE
GRANTED CERTIORARI, LIMITED TO THE QUESTION WHETHER SEC. 480 OF THE NEW
YORK CIVIL PRACTICE ACT IS APPLICABLE TO AN ACTION IN THE FEDERAL COURT
IN DELAWARE.  312 U.S. 674.    THE CIRCUIT COURT OF APPEALS WAS OF THE
VIEW THAT UNDER NEW YORK LAW THE RIGHT TO INTEREST BEFORE VERDICT UNDER
SEC. 480 WENT TO THE SUBSTANCE OF THE OBLIGATION, AND THAT PROPER
CONSTRUCTION OF THE CONTRACT IN SUIT FIXED NEW YORK AS THE PLACE OF
PERFORMANCE.  IT THEN CONCLUDED THAT SEC. 480 WAS APPLICABLE TO THE
CASE BECAUSE "IT IS CLEAR BY WHAT WE THINK IS UNDOUBTEDLY THE BETTER
VIEW OF THE LAW THAT THE RULES FOR ASCERTAINING THE MEASURE OF DAMAGES
ARE NOT A MATTER OF PROCEDURE AT ALL, BUT ARE MATTERS OF SUBSTANCE
WHICH SHOULD BE SETTLED BY REFERENCE TO THE LAW OF THE APPROPRIATE
STATE ACCORDING TO THE TYPE OF CASE BEING TRIED IN THE FORUM.  THE
MEASURE OF DAMAGES FOR BREACH OF A CONTRACT IS DETERMINED BY THE LAW OF
THE PLACE OF PERFORMANCE; RESTATEMENT, CONFLICT OF LAWS SEC. 413."  THE
COURT REFERRED ALSO TO SEC. 418 OF THE RESTATEMENT, WHICH MAKES
INTEREST PART OF THE DAMAGES TO BE DETERMINED BY THE LAW OF THE PLACE
OF PERFORMANCE.  APPLICATION OF THE NEW YORK STATUTE APPARENTLY
FOLLOWED FROM THE COURT'S INDEPENDENT DETERMINATION OF THE "BETTER
VIEW" WITHOUT REGARD TO DELAWARE LAW, FOR NO DELAWARE DECISION OR
STATUTE WAS CITED OR DISCUSSED. 

WE ARE OF OPINION THAT THE PROHIBITION DECLARED IN ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, AGAINST SUCH INDEPENDENT DETERMINATIONS BY THE
FEDERAL COURTS, EXTENDS TO THE FIELD OF CONFLICT OF LAWS.  THE CONFLICT
OF LAWS RULES TO BE APPLIED BY THE FEDERAL COURT IN DELAWARE MUST
CONFORM TO THOSE PREVAILING IN DELAWARE'S STATE COURTS.  FN2
OTHERWISE, THE ACCIDENT OF DIVERSITY OF CITIZENSHIP WOULD CONSTANTLY
DISTURB EQUAL ADMINISTRATION OF JUSTICE IN COORDINATE STATE AND FEDERAL
COURTS SITTING SIDE BY SIDE.  SEE ERIE R. CO. V. TOMPKINS, SUPRA, AT 74
77.  ANY OTHER RULING WOULD DO VIOLENCE TO THE PRINCIPLE OF UNIFORMITY
WITHIN A STATE, UPON WHICH THE TOMPKINS DECISION IS BASED.  WHATEVER
LACK OF UNIFORMITY THIS MAY PRODUCE BETWEEN FEDERAL COURTS IN DIFFERENT
STATES IS ATTRIBUTABLE TO OUR FEDERAL SYSTEM, WHICH LEAVES TO A STATE,
WITHIN THE LIMITS PERMITTED BY THE CONSTITUTION, THE RIGHT TO PURSUE
LOCAL POLICIES DIVERGING FROM THOSE OF ITS NEIGHBORS.  IT IS NOT FOR
THE FEDERAL COURTS TO THWART SUCH LOCAL POLICIES BY ENFORCING AN
INDEPENDENT "GENERAL LAW" OF CONFLICT OF LAWS.  SUBJECT ONLY TO REVIEW
BY THIS COURT ON ANY FEDERAL QUESTION THAT MAY ARISE, DELAWARE IS FREE
TO DETERMINE WHETHER A GIVEN MATTER IS TO BE GOVERNED BY THE LAW OF THE
FORUM OR SOME OTHER LAW.  CF. MILWAUKEE COUNTY V. WHITE CO., 296 U.S.
268, 272.  THIS COURT'S VIEWS ARE NOT THE DECISIVE FACTOR IN
DETERMINING THE APPLICABLE CONFLICTS RULE.  CF. FUNKHOUSER V. J.B.
PRESTON CO., 290 U.S. 163.  AND THE PROPER FUNCTION OF THE DELAWARE
FEDERAL COURT IS TO ASCERTAIN WHAT THE STATE LAW IS, NOT WHAT IT OUGHT
TO BE. 

BESIDES THESE GENERAL CONSIDERATIONS, THE TRADITIONAL TREATMENT OF
INTEREST IN DIVERSITY CASES BROUGHT IN THE FEDERAL COURTS POINTS TO THE
SAME CONCLUSION.  SECTION 966 OF THE REVISED STATUTES, 28 U.S.C. SEC.
811, RELATING TO INTEREST ON JUDGMENTS, PROVIDES THAT IT BE CALCULATED
FROM THE DATE OF JUDGMENT AT SUCH RATE AS IS ALLOWED BY LAW ON
JUDGMENTS RECOVERED IN THE COURTS OF THE STATE IN WHICH THE COURT IS
HELD.  IN MASSACHUSETTS BENEFIT ASSOCIATION V. MILES, 137 U.S. 689,
THIS COURT HELD THAT SEC. 966 DID NOT EXCLUDE THE ALLOWANCE OF INTEREST
ON VERDICTS AS WELL AS JUDGMENTS, AND THE OPINION OBSERVED THAT "THE
COURTS OF THE STATE AND THE FEDERAL COURTS SITTING WITHIN THE STATE
SHOULD BE IN HARMONY UPON THIS POINT" (P. 691). 

LOOKING THEN TO THE DELAWARE CASES, PETITIONER RELIES ON ONE GROUP TO
SUPPORT HIS CONTENTION THAT THE DELAWARE STATE COURTS WOULD REFUSE TO
APPLY SEC. 480 OF THE NEW YORK CIVIL PRACTICE ACT, AND RESPONDENT ON
ANOTHER TO PROVE THE CONTRARY.  WE MAKE NO ANALYSIS OF THESE DELAWARE
DECISIONS, BUT LEAVE THIS FOR THE CIRCUIT COURT OF APPEALS WHEN THE
CASE IS REMANDED. 

RESPONDENT MAKES THE FURTHER ARGUMENT THAT THE JUDGMENT MUST BE
AFFIRMED BECAUSE, UNDER THE FULL FAITH AND CREDIT CLAUSE OF THE
CONSTITUTION, THE STATE COURTS OF DELAWARE WOULD BE OBLIGED TO GIVE
EFFECT TO THE NEW YORK STATUTE.  THE ARGUMENT RESTS MAINLY ON THE
DECISION OF THIS COURT IN JOHN HANCOCK MUTUAL LIFE INS. CO. V. YATES,
299 U.S. 178, WHERE A NEW YORK STATUTE WAS HELD SUCH AN INTEGRAL PART
OF A CONTRACT OF INSURANCE, THAT GEORGIA WAS COMPELLED TO SUSTAIN THE
CONTRACT UNDER THE FULL FAITH AND CREDIT CLAUSE.  HERE, HOWEVER, SEC.
480 OF THE NEW YORK CIVIL PRACTICE ACT IS IN NO WAY RELATED TO THE
VALIDITY OF THE CONTRACT IN SUIT, BUT MERELY TO AN INCIDENTAL ITEM OF
DAMAGES, INTEREST, WITH RESPECT TO WHICH COURTS AT THE FORUM HAVE
COMMONLY BEEN FREE TO APPLY THEIR OWN OR SOME OTHER LAW AS THEY SEE
FIT.  NOTHING IN THE CONSTITUTION ENSURES UNLIMITED EXTRATERRITORIAL
RECOGNITION OF ALL STATUTES OR OF ANY STATUTE UNDER ALL CIRCUMSTANCES. 
PACIFIC EMPLOYERS INSURANCE CO. V. INDUSTRIAL ACCIDENT COMM'N, 306 U.S.
493; KRYGER V. WILSON, 242 U.S. 171.  THE FULL FAITH AND CREDIT CLAUSE
DOES NOT GO SO FAR AS TO COMPEL DELAWARE TO APPLY SEC. 480 IF SUCH
APPLICATION WOULD INTERFERE WITH ITS LOCAL POLICY. 

ACCORDINGLY, THE JUDGMENT IS REVERSED AND THE CASE REMANDED TO THE
CIRCUIT COURT OF APPEALS FOR DECISION IN CONFORMITY WITH THE LAW OF
DELAWARE.  REVERSED. 

FN1  SECTION 480, NEW YORK CIVIL PRACTICE ACT: 

"INTEREST TO BE INCLUDED IN RECOVERY.  WHERE IN ANY ACTION, EXCEPT AS
PROVIDED IN SECTION FOUR HUNDRED EIGHTY-A, FINAL JUDGMENT IS RENDERED
FOR A SUM OF MONEY AWARDED BY A VERDICT, REPORT OR DECISION, INTEREST
UPON THE TOTAL AMOUNT AWARDED, FROM THE TIME WHEN THE VERDICT WAS
RENDERED OR THE REPORT OR DECISION WAS MADE TO THE TIME OF ENTERING
JUDGMENT, MUST BE COMPUTED BY THE CLERK, ADDED TO THE TOTAL AMOUNT
AWARDED, AND INCLUDED IN THE AMOUNT OF THE JUDGMENT.  IN EVERY ACTION
WHEREIN ANY SUM OF MONEY SHALL BE AWARDED BY VERDICT, REPORT OR
DECISION UPON A CAUSE OF ACTION FOR THE ENFORCEMENT OF OR BASED UPON
BREACH OF PERFORMANCE OF A CONTRACT, EXPRESS OR IMPLIED, INTEREST SHALL
BE RECOVERED UPON THE PRINCIPAL SUM WHETHER THERETOFORE LIQUIDATED OR
UNLIQUIDATED AND SHALL BE ADDED TO AND BE A PART OF THE TOTAL SUM
AWARDED." 

FN2  AN OPINION IN SAMPSON V. CHANNELL, 110 F.2D 754, 759-62, REACHES
THE SAME CONCLUSION, AS DOES AN OPINION OF THE THIRD CIRCUIT HANDED
DOWN SUBSEQUENT TO THE CASE AT BAR, WAGGAMAN V. GENERAL FINANCE CO.,
116 F.2D 254, 257.  SEE ALSO GOODRICH, CONFLICT OF LAWS, SEC. 12. 
..END :





GRIFFIN V. MCCOACH, 313 U.S. 498 


NO. 755.  ARGUED MAY 2, 1941.  - DECIDED JUNE 2, 1941.  - 116 F.2D 261,
REVERSED. 


1.  THE RULES OF CONFLICT OF LAWS WHICH GOVERN A FEDERAL COURT IN
DIVERSITY OF CITIZENSHIP CASES ARE THOSE OF THE STATE IN WHICH THE
FEDERAL COURT SITS.  KLAXON CO. V. STENTOR MFG. CO., ANTE, P. 487.  P.
503. 

2.  A STATE MAY CONSTITUTIONALLY DECLINE TO ENFORCE IN ITS COURTS, AS
CONTRARY TO ITS POLICY, A CONTRACT INSURING THE LIFE OF ITS CITIZEN IN
FAVOR OF BENEFICIARIES WHO HAVE NO INSURABLE INTEREST, THOUGH MADE IN
ANOTHER STATE AND VALID WHERE MADE; AND SUCH RULE OR POLICY BINDS THE
FEDERAL COURT EXERCISING DIVERSE CITIZENSHIP JURISDICTION IN THE STATE
ADOPTING IT.  P. 506. 

3.  IN AN ACTION IN A FEDERAL COURT IN TEXAS TO COLLECT THE AMOUNT OF
A LIFE INSURANCE POLICY WHICH HAD BEEN MADE IN NEW YORK AND LATER
CHANGED BY INSTRUMENTS ASSIGNING BENEFICIAL INTERESTS, HELD:  THAT THE
QUESTIONS (1) WHETHER THE CONTRACT, NOTWITHSTANDING THE CHANGES,
REMAINED A CONTRACT GOVERNED BY THE LAW OF NEW YORK WITH RESPECT TO THE
RIGHTS OF ASSIGNEES, RATHER THAN BY THE LAW OF TEXAS; AND (2) WHETHER
THE PUBLIC POLICY OF TEXAS PERMITS OF RECOVERY BY ONE NAMED AS
BENEFICIARY WHO HAS NO BENEFICIAL INTEREST IN THE LIFE OF THE INSURED;
AND (3) WHETHER LACK OF INSURABLE INTEREST BECOMES IMMATERIAL WHEN THE
INSURER ACKNOWLEDGES LIABILITY AND PAYS THE MONEY INTO COURT - WERE
QUESTIONS OF TEXAS LAW, TO BE DECIDED ACCORDING TO TEXAS DECISIONS. 
PP. 504 ET SEQ. 

GRIFFIN, ADMINISTRATOR, V. MCCOACH, TRUSTEE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 312 U.S. 676, TO REVIEW A DECREE WHICH AFFIRMED A
DISTRIBUTION OF THE PROCEEDS OF A LIFE INSURANCE POLICY AMONG SEVERAL
CONTENDING CLAIMANTS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION, BEGUN IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS, BY THE PERSONAL REPRESENTATIVES SUBSTITUTED
FOR THE HEIRS AT LAW OF COLONEL ROBERT D. GORDON, WHO DIED A CITIZEN
AND RESIDENT OF TEXAS, AGAINST THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA TO COLLECT AN INSURANCE POLICY ON THE LIFE OF THE DECEDENT. 
THE COMPANY FILED A BILL OF INTERPLEADER (49 STAT. 1096; 28 U.S.C. SEC.
41(26)) MAKING THE RESPONDENT JOHN D. MCCOACH, TRUSTEE, AND OTHER
ALLEGED CLAIMANTS PARTIES, AND TENDERING THE NET AMOUNT DUE UNDER THE
POLICY.  THE INTERPLEADER WAS ALLOWED, THE COMPANY DISCHARGED FROM THE
LITIGATION, AND THE INTERESTS OF ALL PARTIES TO THE SUIT, OTHER THAN
PETITIONER AND RESPONDENT, DISPOSED OF BY THE DECREE IN A MANNER TO
WHICH NO ONE OBJECTS HERE.  THE CONTROVERSY STILL TO BE DECIDED IS AS
TO WHETHER THE ESTATE OR THE TRUSTEE IS ENTITLED TO CERTAIN PORTIONS OF
THE INSURANCE.  THE CIRCUMSTANCES GIVING RISE TO THE ISSUE FOLLOW. 

COLONEL GORDON, THE INSURED, INTERESTED SEVEN PERSONS IN TEXAS OIL
DEVELOPMENTS, INCLUDING MCCOACH, THE TRUSTEE, IN HIS INDIVIDUAL
CAPACITY.  THEY OPERATED AS A NEW YORK COMMON LAW ASSOCIATION CALLED
THE MIDDLETON TEX OIL SYNDICATE.  THE RECORD HERE SHOWS THAT "PRIOR TO
THE ISSUING OF THE POLICY AND THEREAFTER, THE MEMBERS ADVANCED
CONSIDERABLE MONEY TO GORDON, AND THE PREMIUMS ON THE POLICY WERE PAID
BY THE MEMBERS OF THE SYNDICATE AT GORDON'S REQUEST, UPON HIS AGREEMENT
TO REPAY THE SYNDICATE.  PREMIUMS WERE PAID ON THE POLICY BY THE
SYNDICATE, IN ACCORDANCE WITH THIS AGREEMENT AND WERE NEVER REPAID BY
GORDON."  A TERM INSURANCE POLICY WAS TAKEN OUT BY GORDON WITH THE
SYNDICATE NAMED AS BENEFICIARY.  WHEN THE POLICY WAS ISSUED, AND AT ALL
TIMES SUBSEQUENT UNTIL HIS DEATH, GORDON WAS A CITIZEN OF TEXAS.  THE
SYNDICATE ORIGINALLY HAD PHYSICAL POSSESSION OF THE POLICY.  TWO YEARS
AFTER ITS ISSUANCE THE SYNDICATE CEASED OPERATIONS.  IN 1924, DUE TO
FINANCIAL REVERSES, IT CEASED TO DO BUSINESS AND THE MEMBERS FORMED A
NEW ASSOCIATION CALLED THE PROTECTION SYNDICATE.  MCCOACH BECAME AND
CONTINUES AS TRUSTEE OF THE SYNDICATE.  IT WAS ORGANIZED "FOR THE SOLE
PURPOSE" OF PAYING THE PREMIUMS ON THE POLICY AND RECEIVING AND
DISTRIBUTING THE PROCEEDS AMONG THE MEMBERS.  THIS IT DID UNTIL THE
INSURED'S DEATH.  THE BENEFICIARY IN THE POLICY WAS CHANGED TO MAKE THE
MEMBERS OF THE PROTECTION SYNDICATE THE BENEFICIARIES.  BY ARRANGEMENT
BETWEEN THE DECEDENT AND THE MEMBERS OF THE PROTECTION SYNDICATE IN
1934 A FURTHER CHANGE OF BENEFICARIES WAS MADE BY WHICH, IN
CONSIDERATION OF THE INSURED'S RELEASE OF THE RIGHT TO CHANGE
BENEFICIARIES ON PRESENTATION OF THE POLICY FOR ENDORSEMENT, HITHERTO
RETAINED, ONE-EIGHTH OF THE DISABILITY PROCEEDS OF THE POLICY WERE TO
BE PAID THE INSURED, AND ONE-EIGHTH OF THE DEATH PROCEEDS TO HIS WIFE,
AND THE REMAINING SEVEN-EIGHTHS TO THE TRUSTEE FOR THE MEMBERS OF THE
PROTECTION SYNDICATE. 

"THE APPLICATION FOR THE POLICY WAS SIGNED BY GORDON IN THE STATE OF
NEW YORK, AND FORWARDED TO THE HOME OFFICE OF THE PRUDENTIAL INSURANCE
COMPANY IN THE STATE OF NEW JERSEY, AND THERE ACTED UPON, AND THE
POLICY WAS DELIVERED IN THE STATE OF NEW YORK."  THE LATER ARRANGEMENT,
BY WHICH GORDON AND HIS WIFE BECAME BENEFICIARIES OF ONE-EIGHTH OF THE
PROCEEDS, WAS CONSUMMATED BY CERTAIN FORMS FURNISHED BY THE PRUDENTIAL
AND "TRANSMITTED  ...  FROM MIDDLETOWN, N.Y., TO TYLER, TEXAS, FOR
COLONEL GORDON'S SIGNATURE.  THEY WERE THERE EXECUTED BY COLONEL GORDON
BEFORE A NOTARY PUBLIC IN TYLER, TEXAS, AND RETURNED TO MIDDLETOWN,
N.Y., WHERE THEY WERE EXECUTED BY THE PARTIES RESIDING THERE, FROM
WHENCE THEY WERE SENT BY SCHWEIGER (AN AGENT OF THE PRUDENTIAL AND A
MEMBER OF THE SYNDICATE), WITH THE POLICY, TO THE HOME OFFICE AT
NEWARK, N.J., AND SUBSEQUENTLY THE FORMS WERE INDORSED ON THE POLICY
AND IT WAS RETURNED DIRECTLY FROM NEW JERSEY TO THE BENEFICIARIES IN
NEW YORK." 

THEREAFTER, THREE OF THE MEMBERS OF THE PROTECTION SYNDICATE
SEPARATELY ASSIGNED THEIR INTERESTS IN THE POLICY TO THREE INDIVIDUALS
NOT PREVIOUSLY INTERESTED IN THE TRANSACTION.  THESE ASSIGNEES PAID
THEIR PROPORTION OF THE PREMIUMS AFTER THE RESPECTIVE ASSIGNMENTS. 

THE DISTRICT COURT DECREED THAT MRS. GORDON SHOULD RECEIVE HER ONE
EIGHTH AND THAT THE BALANCE OF THE PROCEEDS SHOULD BE PAID THE TRUSTEE
FOR THE BENEFIT OF THE CROSS-DEFENDANTS, MEMBERS OF THE PROTECTION
SYNDICATE.  THE DECREE WAS BASED ON A FINDING THAT THE POLICY WAS A NEW
YORK CONTRACT AND THAT THE SUBSEQUENT CHANGES WERE MADE IN NEW JERSEY
AND DELIVERED IN NEW YORK.  FURTHER, THE DISTRICT COURT CONCLUDED THAT
THE RELATION OF DEBTOR AND CREDITOR EXISTED BETWEEN THE MEMBERS OF THE
SYNDICATE AND THEIR ASSIGNEES UPON THE ONE HAND AND THE INSURED UPON
THE OTHER, AND THAT THEREFORE ALL THE CESTUIS QUE TRUSTENT HAD AN
INSURABLE INTEREST IN COLONEL GORDON'S LIFE. 

AN APPEAL LIMITED TO THE "CORRECTNESS OF THE JUDGMENT OF THE TRIAL
COURT CONCERNING THE PERSONS ENTITLED TO RECEIVE THE ASSIGNED
INTERESTS" WAS PROSECUTED ON AN AGREED STATEMENT OF THE RECORD UNDER
RULE 76 OF THE RULES OF CIVIL PROCEDURE.  IN THE STATEMENT, PETITIONER
SETS OUT TWO POINTS NOW RELIED UPON FOR REVERSAL.  FIRST:  THAT THE
ASSIGNMENT AND CHANGE OF BENEFICIARY WAS GOVERNED BY THE LAW OF TEXAS;
THAT THE TRUSTEE CLAIMED ONLY UNDER THE ASSIGNMENT; THAT BENEFICIARIES
MUST HAVE AN INSURABLE INTEREST UNDER TEXAS LAW AND THAT THE ASSIGNEES
HAD NONE.  HENCE, THE PERSONAL REPRESENTATIVE WAS ENTITLED TO RECOVER
THEIR PORTIONS OF THE POLICY FOR THE ESTATE.  WILKE V. FINN, 39 S.W.2D
836.  SECOND:  THAT IF THE WHOLE TRANSACTION WAS GOVERNED BY THE LAW OF
ANOTHER STATE THAN TEXAS, IN WHICH OTHER STATE AN INSURABLE INTEREST
WAS NOT REQUIRED, THE UNITED STATES DISTRICT COURT SITTING IN TEXAS WAS
BOUND BY THE PUBLIC POLICY OF TEXAS WHICH FORBIDS PERSONS WITHOUT AN
INSURABLE INTEREST TO COLLECT IN TEXAS, AS BENEFICIARIES, THE PROCEEDS
OF INSURANCE POLICIES. 

THE CIRCUIT COURT OF APPEALS AFFIRMED.  116 F.2D 261.  IT HELD TOO
THAT THE POLICY WAS A NEW YORK POLICY, GOVERNED BY THE LAW OF THAT
STATE, AND THAT, AS THE SUBSEQUENT CHANGES WERE MADE PURSUANT TO
AGREEMENTS CONTAINED IN THE ORIGINAL POLICY, THEY DID NOT AMOUNT TO NEW
CONTRACTS OR CHANGE THE GOVERNING LAW.  CF. AETNA LIFE INSURANCE CO. V.
DUNKEN, 266 U.S. 389.  THE COURT SAID: 

"UNDER THE TERMS OF THE POLICY, A NEW YORK CONTRACT, NO RESTRICTIONS
WERE PLACED UPON ASSIGNMENTS RELATING TO INSURABLE INTEREST.  NONE WAS
CREATED BY THE LAWS OF NEW YORK.  EACH OF THE ASSIGNMENTS WAS EXECUTED
AND DELIVERED IN NEW YORK BY RESIDENTS OF THAT STATE TO OTHER
RESIDENTS.  THEY WERE NEW YORK CONTRACTS AND VALID UNDER ITS LAWS.  TO
APPLY THE LAWS OF TEXAS TO THE NEW YORK CONTRACTS WOULD CONSTITUTE AN
UNWARRANTED EXTRA-TERRITORIAL CONTROL OF CONTRACTS AND REGULATION OF
BUSINESS OUTSIDE OF TEXAS IN DISREGARD OF THE LAWS OF NEW YORK; THIS IS
NOT CHANGED BY THE TRIAL OF THE SUIT IN A COURT SITTING IN TEXAS." 

AS TO THE VIOLATION OF THE CLAIMED PUBLIC POLICY OF TEXAS AGAINST
BENEFICIARIES WITH NON-INSURABLE INTERESTS, THE COURT OF APPEALS
DECIDED THAT THE RULE COULD NOT BE APPLIED WHERE, AS HERE, A "FAIR AND
PROPER INSURABLE INTEREST" EXISTED WHEN THE POLICY WAS ISSUED.  116
F.2D 261, 264.  CERTIORARI WAS SOUGHT AND ALLOWED, 312 U.S. 676, ON THE
GROUND, AMONG OTHERS, OF A CONFLICT BETWEEN THE INSTANT CASE AND
SAMPSON V. CHANNELL, 110 F.2D 754, 759-62, WHERE THE FIRST CIRCUIT HELD
THAT A UNITED STATES COURT MUST APPLY THE CONFLICT OF LAWS RULES OF THE
STATE WHERE IT SITS. 

FOR THE REASONS GIVEN IN KLAXON COMPANY V. STENTOR ELECTRIC
MANUFACTURING CO., ANTE, P. 487, WE ARE OF THE VIEW THAT THE FEDERAL
COURTS IN DIVERSITY OF CITIZENSHIP CASES ARE GOVERNED BY THE CONFLICT
OF LAWS RULES OF THE COURTS OF THE STATES IN WHICH THEY SIT.  IN
DECIDING THAT THE CHANGES MADE IN THE INSURANCE CONTRACT LEFT ITS
GOVERNING LAW UNAFFECTED N1 AND THAT THE LAWS OF TEXAS COULD NOT BE
APPLIED TO A FOREIGN CONTRACT IN TEXAS COURTS,  FN2  THE FEDERAL COURTS
WERE APPLYING RULES OF LAW IN A WAY WHICH MAY OR MAY NOT HAVE BEEN
CONSISTENT WITH TEXAS DECISIONS.  LIKEWISE IT IS FOR TEXAS TO SAY
WHETHER ITS PUBLIC POLICY PERMITS A BENEFICIARY OF AN INSURANCE POLICY
ON THE LIFE OF A TEXAS CITIZEN TO RECOVER WHERE NO INSURABLE INTEREST
IN THE DECEDENT EXISTS IN THE BENEFICIARY.  THE OPINION DOES NOT REST
ITS CONCLUSIONS UPON ITS APPRAISAL OF TEXAS LAW OR TEXAS DECISIONS, BUT
UPON DECISIONS OF THIS COURT INAPPLICABLE TO THIS SITUATION IN THE
LIGHT OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64, AND RUHLIN V. NEW YORK
LIFE INSURANCE CO., 304 U.S. 202, 205.  FN3  THE STATEMENT IN THE
OPINION "THAT IT IS IMMATERIAL, IN SO FAR AS THE DECISION OF THIS CASE
IS CONCERNED, WHETHER THE LAW OF TEXAS OR THE LAW OF NEW YORK BE
APPLIED," WE UNDERSTAND, FROM A READING OF THE WHOLE OPINION, TO MEAN
THAT, WHILE AN INSURABLE INTEREST IS REQUIRED IN TEXAS AND NOT IN NEW
YORK, THE LACK OF INSURABLE INTEREST IS IMMATERIAL IN THIS CASE EVEN IN
TEXAS BECAUSE "THE INSURER ACKNOWLEDGED LIABILITY AND PAID THE MONEY
INTO COURT.  THIS BEING SO, NOT ONLY DOES THE OBJECTION OF WAGERS
DISAPPEAR, BUT ALSO THE CLAIMED PRINCIPLE OF PUBLIC POLICY."  BUT THIS
IS SOMETHING TO BE DECIDED ACCORDING TO TEXAS DECISIONS, TO NONE OF
WHICH THE OPINION REFERS.  CF. WILKE V. FINN, 39 S.W.2D 836; CHEEVES V.
ANDERS, 87 TEXAS 287; 28 S.W. 274.  THE DECISION MUST BE REVERSED AND
REMANDED TO THE CIRCUIT COURT OF APPEALS FOR DETERMINATION OF THE LAW
OF TEXAS AS APPLIED TO THE CIRCUMSTANCES OF THIS CASE. 

IN VIEW OF THE HOLDING QUOTED FROM THE OPINION BELOW, ANTE, P. 502,
THAT TO APPLY THE LAWS OF TEXAS TO NEW YORK CONTRACTS WHEN TEXAS
CITIZENS WERE PARTIES WOULD CONSTITUTE AN UNWARRANTED EXTRATERRITORIAL
CONTROL OF CONTRACTS AND REGULATION OF BUSINESS, IT SEEMS NECESSARY TO
EXAMINE THAT POSITION, AS IT MAY BE DETERMINED UPON REMAND THAT THESE
ARE FOREIGN CONTRACTS AND UNDER TEXAS LAW UNENFORCEABLE AS CONTRARY TO
THE PUBLIC POLICY OF TEXAS, BECAUSE THE ASSIGNEES HAVE NO INSURABLE
INTEREST.  IT WOULD THEN BE NECESSARY TO DECIDE WHETHER THE COURTS OF
TEXAS COULD CONSTITUTIONALLY APPLY TEXAS LAW TO A FOREIGN CONTRACT,
VALID WHERE MADE, BECAUSE SUCH CONTRACT IS CONTRARY TO THE STATE'S
PUBLIC POLICY.  FN4  IF THE CIRCUIT COURT OF APPEALS WAS CORRECT IN ITS
VIEW THAT THE CONSTITUTION FORECLOSED APPLICATION OF SUCH A TEXAS
PUBLIC POLICY TO THIS CASE, THE ONLY QUESTION OPEN ON REMAND WOULD BE
WHETHER THE CONTRACT SUED UPON WAS A TEXAS CONTRACT. 

BUT THE CASES RELIED UPON IN THE COURT OF APPEALS TO SUPPORT ITS
HOLDING  FN5  DO NOT IN OUR OPINION DECIDE THIS QUESTION.  OVERBY V.
GORDON HOLDS THAT THE ADJUDICATION OF A PROBATE COURT OF GEORGIA THAT
THE DECEDENT WAS A RESIDENT OF THAT STATE WAS A PROCEEDING IN REM AND
DID NOT BIND THE COURTS OF THE DISTRICT OF COLUMBIA IN A SUIT TO
DETERMINE ANEW DECEDENT'S DOMICILE.  NEW YORK LIFE INSURANCE CO. V.
HEAD PASSED UPON THE APPLICATION, BY MISSOURI COURTS, OF MISSOURI
STATUTES, PROVIDING FOR AN EXTENSION OF INSURANCE ON DEFAULT OF
PREMIUM, TO AN INSURANCE CONTRACT ASSUMED AS OF MISSOURI, THOUGH THE
INSURED AT THE TIME OF ISSUE AND THEREAFTER WAS A CITIZEN OF NEW
MEXICO.  A NEW YORK LOAN AGREEMENT SUBSEQUENT TO THE ISSUANCE OF THE
POLICY BETWEEN THE INSURED AND THE COMPANY, A CITIZEN OF NEW YORK,
PROVIDED FOR EXTENSION AFTER DEFAULT, WHICH WAS CONTRARY TO THE
MISSOURI STATUTES.  THIS COURT HELD THE MISSOURI STATUTES WERE
INEFFECTIVE BECAUSE THE NEW YORK LOAN AGREEMENT WAS BEYOND MISSOURI'S
JURISDICTION.  THE POINT THAT MISSOURI MIGHT REFUSE ENFORCEMENT BECAUSE
THE AGREEMENT, VALID IN NEW YORK, WAS CONTRARY TO THE PUBLIC POLICY OF
THE FORMER, WAS NOT DISCUSSED.  IN BOND V. HUME, A FEW YEARS LATER,
THIS COURT RESERVED THE PRINCIPLE HERE IN QUESTION.  FN6  THE AETNA
CASE DENIED THE CONSTITUTIONAL POWER OF THE TEXAS COURTS TO APPLY A
TEXAS STATUTE ALLOWING A PENALTY AND ATTORNEYS' FEES AGAINST THE
COMPANY IN A SUIT ON AN INSURANCE CONTRACT MADE IN A FOREIGN
JURISDICTION WITH A PERSON THEN A CITIZEN OF TENNESSEE, BECAUSE THE
"EFFECT OF SUCH APPLICATION WOULD BE TO REGULATE BUSINESS OUTSIDE THE
STATE OF TEXAS AND CONTROL CONTRACTS MADE BY CITIZENS OF OTHER STATES
IN DISREGARD OF THEIR LAWS UNDER WHICH PENALTIES AND ATTORNEY'S FEES
ARE NOT RECOVERABLE."  266 U.S. AT 399.  THE FREEDOM FROM PENALTY AND
FEE WAS DEEMED A PART OF THE FOREIGN CONTRACT AND ITS EFFECT ON THE
PUBLIC POLICY OF TEXAS WAS NOT APPRAISED.  FN7 

IF UPON EXAMINATION OF THE TEXAS LAW IT APPEARS THAT THE COURTS OF
TEXAS WOULD REFUSE ENFORCEMENT OF AN INSURANCE CONTRACT WHERE THE
BENEFICIARIES HAVE NO INSURABLE INTEREST, ON THE GROUND OF ITS
INTERFERENCE WITH LOCAL LAW, SUCH REFUSAL WOULD BE, IN OUR OPINION,
WITHIN THE CONSTITUTIONAL POWER OF THE TEXAS COURTS.  RIGHTS ACQUIRED
BY CONTRACT OUTSIDE A STATE ARE ENFORCED WITHIN A STATE, CERTAINLY
WHERE ITS OWN CITIZENS ARE CONCERNED; BUT THAT PRINCIPLE EXCEPTS
CLAIMED RIGHTS SO CONTRARY TO THE LAW OF THE FORUM AS TO SUBVERT THE
FORUM'S VIEW OF PUBLIC POLICY.  CF. LOUCKS V. STANDARD OIL CO., 224
N.Y. 99, 110; 120 N.E. 198.  IT IS "RUDIMENTARY" THAT A STATE "WILL NOT
LEND THE AID OF ITS COURTS TO ENFORCE A CONTRACT FOUNDED UPON A FOREIGN
LAW WHERE TO DO SO WOULD BE REPUGNANT TO GOOD MORALS, WOULD LEAD TO
DISTURBANCE AND DISORGANIZATION OF THE LOCAL MUNICIPAL LAW, OR IN OTHER
WORDS, VIOLATE THE PUBLIC POLICY OF THE STATE WHERE THE ENFORCEMENT OF
THE FOREIGN CONTRACT IS SOUGHT."  BOND V. HUME, 243 U.S. 15, 21. 
APPLYING THAT REASONING, THIS COURT AFFIRMED THE FEDERAL COURT IN
FOLLOWING TEXAS' DECISIONS WHICH REFUSED TO ENFORCE A VALID FOREIGN
CONTRACT OF GUARANTYSHIP AGAINST A MARRIED WOMAN.  UNION TRUST CO. V.
GROSMAN, 245 U.S. 412.  LIKEWISE, STATE COURTS HAVE BEEN UPHELD IN
REFUSING TO LEND THEIR AID TO ENFORCE VALID FOREIGN CONTRACTS WHICH
REQUIRED THE DOING OF PROHIBITED ACTS WITHIN THE STATE OF THE FORUM. 
BOTHWELL V. BUCKBEE, MEARS CO., 275 U.S. 274, 278.  WHERE THIS COURT
HAS REQUIRED THE STATE OF THE FORUM TO APPLY THE FOREIGN LAW UNDER THE
FULL FAITH AND CREDIT CLAUSE OR UNDER THE FOURTEENTH AMENDMENT, IT HAS
RECOGNIZED THAT A STATE IS NOT REQUIRED TO ENFORCE A LAW OBNOXIOUS TO
ITS PUBLIC POLICY.  BRADFORD ELECTRIC CO. V. CLAPPER, 286 U.S. 145,
160, 161; HARTFORD INDEMNITY CO. V. DELTA CO., 292 U.S. 143, 150.  THE
RULE WAS NOT APPLIED WHERE THE PARTIES TO THE CONTRACT ACQUIRED RIGHTS
BEYOND THE STATE'S BORDERS WITH NO RELATION TO ANYTHING DONE OR TO BE
DONE WITHIN THE BORDERS.  HOME INSURANCE CO. V. DICK, 281 U.S. 397,
410. 

IN THE HEAD CASE THE FOREIGN AND LOCAL LAW DIFFERED AS TO THE MANNER
OF EXTENDING INSURANCE; IN THE AETNA CASE THE DIFFERENCE AROSE FROM A
LOCAL PROVISION FOR ATTORNEY'S FEES AND PENALTY; IN THE DELTA CASE THE
TIME FOR NOTICE VARIED IN THE TWO JURISDICTIONS.  IN NEW YORK LIFE
INSURANCE CO. V. DODGE, 246 U.S. 357, IT WAS SAID THAT A STATUTE OF THE
STATE OF THE FORUM, REGULATING THE APPLICATION OF INSURANCE RESERVES IN
CASE OF DEFAULT OF PREMIUM, WAS NOT EFFECTIVE, EVEN THOUGH THE
INSURANCE CONTRACT WAS A LOCAL CONTRACT AND THE INSURED A CITIZEN OF
THE STATE, TO GOVERN RIGHTS UNDER A LOAN AGREEMENT MADE IN A FOREIGN
JURISDICTION.  BUT THESE FALL SHORT OF A PUBLIC POLICY WHICH PROTECTS
CITIZENS AGAINST THE ASSUMED DANGERS OF INSURANCE ON THEIR LIVES HELD
BY STRANGERS.  IT IS FOR THE STATE TO SAY WHETHER A CONTRACT CONTRARY
TO SUCH A STATUTE OR RULE OF LAW IS SO OFFENSIVE TO ITS VIEW OF PUBLIC
WELFARE AS TO REQUIRE ITS COURTS TO CLOSE THEIR DOORS TO ITS
ENFORCEMENT.  REVERSED. 

FN1  CF. MILLER V. CAMPBELL, 140 N.Y. 457; 35 N.E. 651. 

FN2  CF. UNION TRUST CO. V. GROSMAN, 245 U.S. 412. 

FN3  COMPARE GRIGSBY V. RUSSELL, 222 U.S. 149; CONNECTICUT MUTUAL
LIFE INS. CO. V. SCHAEFER, 94 U.S. 457, RELIED UPON BELOW. 

FN4  CF. SAMPSON V. CHANNELL, 110 F.2D 754, 759. 

FN5  OVERBY V. GORDON, 177 U.S. 214, 222; NEW YORK LIFE INSURANCE CO.
V. HEAD, 234 U.S. 149; BOND V. HUME, 243 U.S. 15; AETNA LIFE INSURANCE
CO. V. DUNKEN, 266 U.S. 389, 399. 

FN6  243 U.S. AT 25:  "AND OF COURSE WE MUST NOT BE UNDERSTOOD AS
DECIDING WHETHER THE MERE EXISTENCE OF A STATE STATUTE PUNISHING ONE
WHO IN BAD FAITH, AND BECAUSE OF SUCH BAD FAITH, HAD MADE AN AGREEMENT
TO DELIVER IN A CONTRACT OF SALE WHICH WOULD BE OTHERWISE VALID, COULD
BECOME THE BASIS OF A PUBLIC POLICY PREVENTING THE ENFORCEMENT IN TEXAS
OF CONTRACTS FOR SALE AND DELIVERY MADE IN ANOTHER STATE WHICH WERE
THERE VALID ALTHOUGH ONE OF THE PARTIES MIGHT HAVE MADE THE AGREEMENT
TO DELIVER IN BAD FAITH." 

FN7  BEFORE ERIE R. CO. V. TOMPKINS, 304 U.S. 64, THIS COURT DECIDED
AS A MATTER OF GENERAL LAW THAT WHERE TIME OF NOTICE IS IMPORTANT THE
FOREIGN LAW GOVERNS.  BOSEMAN V. INSURANCE CO., 301 U.S. 196, 202. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 
..END :




OKLAHOMA V. ATKINSON CO., 313 U.S. 508 


NO. 832.  ARGUED MAY 6, 7, 1941.  - DECIDED JUNE 2, 1941.  - 37 F.SUPP. 
93, AFFIRMED. 


1.  THE DENISON DAM AND RESERVOIR PROJECT ON THE RED RIVER IN OKLAHOMA
AND TEXAS, AUTHORIZED BY THE ACT OF JUNE 28, 1938, IS A VALID EXERCISE
OF THE COMMERCE POWER BY CONGRESS.  P. 516. 

THIS IS A MULTI-PURPOSE PROJECT - PART OF A COMPREHENSIVE SCHEME FOR
CONTROLLING FLOODS IN THE MISSISSIPPI RIVER THROUGH RESERVOIR CONTROL
OF ITS TRIBUTARIES, OF WHICH THE RED RIVER IS ONE OF THE MORE
IMPORTANT.  IT AIMS ALSO TO PROTECT AND IMPROVE NAVIGATION OF THE RED
RIVER ITSELF ON ITS NAVIGABLE STRETCHES (WHICH LIE BELOW THE STATE OF
OKLAHOMA) BY AVERTING DAMAGING FLOODS AND BY REGULATING STREAM-FLOW;
AND IT PROVIDES MEANS FOR CREATING HYDROELECTRIC POWER, THE DISPOSITION
OF WHICH WILL OFFSET SOME OF THE COSTS OF THE FLOOD-CONTROL AND OF THE
STREAM-FLOW REGULATION. 

2.  THE FACT THAT PORTIONS OF A NAVIGABLE STREAM ARE NO LONGER USED
FOR COMMERCE DOES NOT DILUTE THE POWER OF CONGRESS OVER THEM.  P. 523. 

3.  CONGRESS MAY CONTROL NON-NAVIGABLE PARTS OF A RIVER IN ORDER TO
PRESERVE AND PROMOTE COMMERCE ON THE NAVIGABLE PARTS.  P. 523. 

4.  THE POWER OF CONGRESS, UNDER THE COMMERCE CLAUSE, TO PROTECT A
NAVIGABLE RIVER FROM FLOODS EXTENDS TO THE CONTROL OF WATERS OF ITS
TRIBUTARIES.  P. 525. 

5.  THE EXERCISE OF THE GRANTED POWER TO REGULATE INTERSTATE COMMERCE
MAY BE AIDED BY APPROPRIATE AND NEEDFUL CONTROL OF ACTIVITIES AND
AGENCIES WHICH, THOUGH INTRASTATE, AFFECT THAT COMMERCE.  P. 526. 

6.  IT IS FOR CONGRESS ALONE TO DECIDE WHETHER A PARTICULAR PROJECT,
BY ITSELF OR AS PART OF A MORE COMPREHENSIVE SCHEME, WILL HAVE SUCH A
BENEFICIAL EFFECT ON THE ARTERIES OF INTERSTATE COMMERCE AS TO WARRANT
IT.  P. 527. 

IT IS NOT FOR THE COURT TO DETERMINE WHETHER THE RESULTING BENEFITS
TO COMMERCE WILL OUTWEIGH THE COSTS OF THE PROJECT.  NOR MAY THE COURT
INQUIRE INTO THE CONSIDERATIONS OR OBJECTIVES WHICH MOVED MEMBERS OF
CONGRESS TO VOTE FOR THE PROJECT. 

7.  INCLUSION OF THE WATER-POWER FEATURE IN THE DENISON PROJECT,
THEREBY INCREASING THE HEIGHT OF THE DAM AND THE AREA OF LAND TO BE
TAKEN FOR THE RESERVOIR, DID NOT EXCEED THE AUTHORITY OF CONGRESS.  THE
PROJECT IS BASICALLY ONE OF FLOOD-CONTROL INCLUDING RIVER-FLOW, AND
THOSE FUNCTIONS ARE INTERRELATED WITH THE POWER FUNCTION.  P. 529. 

8.  WHETHER THE WORK OF FLOOD-CONTROL WOULD BE BETTER DONE BY A DAM
OF ONE DESIGN OR ANOTHER, WAS FOR CONGRESS TO DETERMINE.  P. 533. 

9.  AS RESPECTS THE AUTHORITY OF CONGRESS TO ADOPT A PLAN FOR FLOOD
CONTROL, IT IS NOT AN OBJECTION THAT IT WILL ALSO SERVE OTHER ENDS
WHICH MAY BE RELATIVELY MORE IMPORTANT.  P. 534. 

10.  THE TENTH AMENDMENT DOES NOT DEPRIVE THE NATIONAL GOVERNMENT OF
AUTHORITY TO RESORT TO ALL MEANS FOR THE EXERCISE OF A GRANTED POWER
WHICH ARE APPROPRIATE AND PLAINLY ADAPTED TO THE PERMITTED END.  P.
534. 

11.  CONSTRUCTION OF THE DENISON DAM AND RESERVOIR DOES NOT INTERFERE
WITH THE SOVEREIGNTY OF OKLAHOMA.  P. 534. 

12. THE FACTS THAT LAND INCLUDED IN A FEDERAL RESERVOIR PROJECT IS
OWNED BY A STATE, OR THAT ITS TAKING MAY IMPAIR THE TAX REVENUE OF THE
STATE, AND THAT THE RESERVOIR WILL OBLITERATE PART OF THE STATE'S
BOUNDARY, AND THAT THE STATE'S OWN PROJECT FOR WATER DEVELOPMENT AND
CONSERVATION WILL BE INTERFERED WITH - CONSTITUTE NO BARRIER TO
CONDEMNATION OF THE LAND BY THE UNITED STATES UNDER ITS SUPERIOR POWER
OF EMINENT DOMAIN.  P. 534. 

OKLAHOMA EX REL. PHILLIPS, GOVERNOR, V. GUY F. ATKINSON CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF OKLAHOMA. 

APPEAL FROM A DECREE DISMISSING ON MOTION A BILL THROUGH WHICH THE
STATE OF OKLAHOMA SOUGHT TO ENJOIN THE CONSTRUCTION, PURSUANT TO AN ACT
OF CONGRESS, OF A DAM AND RESERVOIR, UPON THE GROUND THAT THE ACT AND
THE PROJECT EXCEEDED THE POWER OF CONGRESS AND WERE CONTRARY TO THE
SOVEREIGN AND PROPRIETARY RIGHTS OF THE STATE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES PRIMARILY THE CONSTITUTIONALITY OF THE ACT OF JUNE
28, 1938(52 STAT. 1215) INSOFAR AS IT AUTHORIZES THE CONSTRUCTION OF
THE DENISON RESERVOIR ON RED RIVER IN TEXAS AND OKLAHOMA.  FN1 

THE BILL IN EQUITY WAS FILED BY THE STATE OF OKLAHOMA SEEKING TO
ENJOIN THE CONSTRUCTION OF ANY DAM ACROSS RED RIVER WITHIN THE DOMAIN
OF OKLAHOMA WHICH WOULD IMPOUND THE WATERS OF THE RED RIVER (OR ITS
TRIBUTARY, WASHITA RIVER) SO AS TO INUNDATE AND DESTROY ANY OF THE
LANDS, HIGHWAYS OR BRIDGES BELONGING TO OR UNDER THE JURISDICTION AND
CONTROL OF THE STATE, OR WHICH WOULD OBLITERATE OR INTERFERE WITH ITS
BOUNDARIES.  THE BILL ALSO SEEKS TO RESTRAIN THE INSTITUTION OR CONDUCT
IN ANY COURT IN OKLAHOMA OF PROCEEDINGS TO CONDEMN LANDS FOR THE
PURPOSE OF THE DAM OR RESERVOIR.  FN2 

THE BILL ALLEGES THAT OKLAHOMA WILL BE INJURED IN THE FOLLOWING
MANNER BY CONSTRUCTION OF THE PROJECT:  THE GREATER PART OF THE DAM
WILL REST ON OKLAHOMA SOIL AND WILL FORM A RESERVOIR INUNDATING ABOUT
150,000 ACRES OF LAND, OF WHICH 100,000 ACRES ARE LOCATED IN OKLAHOMA. 
OF THOSE ACRES ABOUT 3,800 ARE OWNED BY THE STATE.  THE UNITED STATES
WILL ACQUIRE TITLE TO THE INUNDATED LAND.  THE LAND OWNED BY THE STATE
IS USED FOR SCHOOL PURPOSES, FOR A PRISON FARM, FOR HIGHWAYS, RIGHTS OF
WAY, AND BRIDGES.  THE BASIN TO BE INUNDATED IS INHABITED BY ABOUT
8,000 OKLAHOMA CITIZENS.  MUCH OF THE LAND IS RICH SOIL IN A HIGH STATE
OF CULTIVATION.  MUCH OF IT HAS LARGE POTENTIAL OIL RESERVES.  ON SOME
OF IT THERE ARE LARGE PRODUCING OIL WELLS AND ON OTHER PARTS THERE ARE
DRILLING OPERATIONS AND EXPLORATION FOR OIL AND GAS.  AT LEAST 15,000
ACRES WILL BE HIGHLY PRODUCTIVE OIL LANDS AND AT LEAST 50,000 ACRES ARE
UNDERLAID WITH OIL AND GAS.  THERE ARE THIRTY-NINE SCHOOL DISTRICTS AND
TOWNSHIPS IN THE FOUR COUNTIES IN WHICH THE AFFECTED AREA IS LOCATED. 
THOSE GOVERNMENTAL UNITS ARE LARGELY SUPPORTED BY AD VALOREM TAXES. 
THE TAKING OF THE 100,000 ACRES WILL DECREASE THE TAXABLE PROPERTY IN
EACH OF THE COUNTIES AND TAKE VIRTUALLY ALL OF THE TAXABLE PROPERTY IN
MANY OF THE TOWNSHIPS AND SCHOOL DISTRICTS.  EACH OF THESE GOVERNMENTAL
UNITS HAS A LARGE BONDED INDEBTEDNESS PAYABLE FROM AN ANNUAL LEVY OF
TAXES.  INUNDATION OF THE LAND WILL DEPRIVE THOSE UNITS OF MUCH OF THE
TAX REVENUE, SO THAT MANY WILL BE PRACTICALLY DESTROYED AND THE
REMAINDER SERIOUSLY HAMPERED.  SINCE THE STATE DERIVES MUCH OF ITS
REVENUE FROM A GROSS PRODUCTION TAX ON OIL AND GAS, IT WILL SUFFER
GREAT LOSSES IN TAX REVENUES FROM THE INUNDATION OF THE OIL AND GAS
LANDS.  THE "ANNUAL WEALTH PRODUCTION" TO THE CITIZENS OF OKLAHOMA FROM
THE LANDS IN THE RESERVOIR BASIN IS ABOUT $1,500,000.  ASIDE FROM SUCH
LOSSES AND LOSSES FROM OIL REVENUES AND PERSONAL PROPERTY TAXATION, THE
NET TAXABLE LOSS TO THE COUNTIES, TOWNSHIPS AND SCHOOL DISTRICTS WILL
BE ABOUT $40,000 ANNUALLY. 

IT IS ALSO ALLEGED THAT THE CONSTRUCTION OF THE DAM WILL BE A "DIRECT
INVASION AND DESTRUCTION" OF THE SOVEREIGN AND PROPRIETARY RIGHTS OF
OKLAHOMA IN THAT:  THE BOUNDARY OF OKLAHOMA WILL BE OBLITERATED FOR
APPROXIMATELY 40 MILES (SEE OKLAHOMA V. TEXAS, 260 U.S. 606); THERE
WILL BE A "FORCIBLE REDUCTION OF THE AREA OF PLAINTIFF AS ONE OF THE
UNITED STATES"; LANDS OWNED BY IT WILL BE TAKEN; ITS HIGHWAYS AND
BRIDGES WILL BE DESTROYED CAUSING AN INTERRUPTION IN COMMUNICATION
BETWEEN VARIOUS PARTS OF THE STATE; THE WATERS TO BE IMPOUNDED BELONG
TO OKLAHOMA BUT WILL BE TAKEN FROM IT WITHOUT PAYMENT OF JUST
COMPENSATION; THOSE WATERS WILL BE DIVERTED FROM OKLAHOMA AND WILL BE
RUN THROUGH TURBINES LOCATED IN TEXAS FOR THE GENERATION OF POWER FOR
SALE PRINCIPALLY IN TEXAS; THE REMOVAL OF CITIZENS FROM THE 100,000
ACRES OF LAND WILL CREATE A "SERIOUS SOCIAL AND ECONOMIC PROBLEM," THE
BURDEN OF WHICH WILL FALL ON OKLAHOMA FOR WHICH NO COMPENSATION IS
AFFORDED. 

THE BILL INCORPORATES H. DOC. NO. 541, 75TH CONG., 3D SESS.
(HEREINAFTER CALLED THE REPORT), WHICH CONTAINS THE WAR DEPARTMENT'S
SURVEY AND RECOMMENDATIONS ON THE DENISON RESERVOIR AND WHICH SERVED AS
THE BROAD DEFINITION OF THE PROJECT WHICH WAS AUTHORIZED BY THE ACT OF
JUNE 28, 1938.  THE BILL ALLEGES THAT UNDER THE STATUTORY SCHEME FLOOD
CONTROL AND POWER PURPOSES ARE "INEXTRICABLY AND INSEVERABLY
INVOLVED."  IT ALLEGES THAT, AS DESCRIBED IN THE REPORT, THE FIRST 110
FEET OF THE DAM ARE TO BE USED "SOLELY AND EXCLUSIVELY FOR THE
DEVELOPMENT OF WATER-POWER," WHILE 40 FEET "SUPERIMPOSED" ON THE POWER
RESERVOIR ARE TO BE USED "SOLELY AND EXCLUSIVELY" FOR FLOOD CONTROL. 
THAT IS TO SAY, FROM ELEVATION 510 FEET (SEA LEVEL) TO 590 FEET THERE
IS TO BE A DEAD STORAGE POOL FOR WATER-POWER HEAD, FROM 595 FEET TO 620
FEET THERE IS TO BE A WATER POWER RESERVOIR, AND FROM 620 FEET TO 660
FEET THERE IS TO BE A FLOOD-CONTROL RESERVOIR.  IT IS ALLEGED THAT
THOSE PURPOSES ARE "FUNCTIONALLY SEPARATE AND NEITHER IS THE INCIDENTAL
OR NECESSARY RESULT OF THE OTHER"; THAT THE SAME PART OF THE RESERVOIR
WILL NOT AND CANNOT BE USED FOR BOTH FLOOD CONTROL AND WATERPOWER
PURPOSES; AND THAT THE POWER PORTION OF THE DAM IS CREATED AT THE
EXPENSE OF ITS UTILIZATION FOR FLOOD CONTROL.  THE BILL FURTHER ALLEGES
THAT AS A RESULT OF THE MODIFICATION OF THE STATUTORY PLAN SET FORTH IN
THE REPORT THE DAM IS BEING CONSTRUCTED SO AS TO PROVIDE DEAD STORAGE
FOR WATER HEAD FROM 510 FEET TO 567 FEET, A POWER POOL RESERVOIR FROM
587 FEET TO 617 FEET, AND A FLOOD-CONTROL RESERVOIR FROM 617 FEET TO
640 FEET.  IT IS ALLEGED THAT BY REASON OF THAT MODIFICATION THE
RESERVOIR WILL INUNDATE 3,080,000 ACRE FEET FOR POWER AND 2,745,000
ACRE FEET FOR FLOOD CONTROL, AS CONTRASTED TO 3,400,000 ACRE FEET FOR
POWER AND 5,900,000 ACRE FEET FOR FLOOD CONTROL UNDER THE ORIGINAL
PLAN; FN3  AND THAT, AS A RESULT, THE STATUTORY SCHEME HAS BEEN CHANGED
FROM ONE PREPONDERANTLY FOR FLOOD CONTROL TO ONE PREPONDERANTLY FOR
WATER POWER.  IT IS ALSO ALLEGED THAT NO PART OF THE RED RIVER IN
OKLAHOMA IS NAVIGABLE. 

THE BILL ALLEGES THAT THE ACT UNDER WHICH APPELLEES ARE PROCEEDING IS
UNCONSTITUTIONAL IN THAT IT VIOLATES THE TENTH AMENDMENT, THAT IT IS
NOT WITHIN THE POWERS OF CONGRESS CONFERRED BY ART. I, SEC. 8 OF THE
FEDERAL CONSTITUTION, AND THAT SINCE APPELLEES ARE ACTING UNDER A VOID
AND UNCONSTITUTIONAL STATUTE THEY SHOULD BE ENJOINED.  BY AN AMENDMENT
TO ITS BILL, THE STATE OF OKLAHOMA ALSO CHALLENGES THE
CONSTITUTIONALITY OF SEC. 4 OF THE ACT OF OCTOBER 17, 1940, C. 895, 54
STAT. 1198.  FN4  THE AMENDED BILL ALLEGES THAT THE PROJECT "DOES NOT
IN ANY WAY PROTECT OR IMPROVE THE NAVIGABLE PORTIONS OF THE LOWER
REACHES OF RED RIVER OR OF THE MISSISSIPPI RIVER EITHER BY ENRICHING
THE LOWER WATER FLOW  ...  AS THE INCIDENTAL RESULT OF THE OPERATION OF
SAID FLOOD CONTROL AND HYDROELECTRIC POWER PROJECT, EXCEPT IN THE
INTANGIBLE, INDIRECT, INCONSEQUENTIAL AND UNSUBSTANTIAL WAY" SET FORTH
IN THE REPORT; AND THAT SUCH INCONSEQUENTIAL AND INTANGIBLE BENEFITS TO
NAVIGATION AS MAY RESULT WILL FLOW FROM THE FLOOD CONTROL, NOT THE
POWER FEATURE, OF THE PROJECT. 

BY MOTIONS TO DISMISS, THE APPELLEES ASSERTED, INTER ALIA, THAT THE
ACTS OF CONGRESS SO CHALLENGED WERE CONSTITUTIONAL AND VALID.  THE CASE
WAS HEARD BY A THREE-JUDGE COURT (ACT OF AUGUST 24, 1937, C. 754, SEC.
3, 50 STAT. 751, 28 U.S.C. SEC. 380A) WHICH SUSTAINED THE ACT
AUTHORIZING THE PROJECT.  37 F.SUPP.  93.  FROM A JUDGMENT DISMISSING
THE COMPLAINT AND DENYING THE INJUNCTION, A DIRECT APPEAL WAS TAKEN TO
THIS COURT. 

WE ARE OF THE VIEW THAT THE DENISON DAM AND RESERVOIR PROJECT IS A
VALID EXERCISE OF THE COMMERCE POWER BY CONGRESS. 

THIS PROJECT IS A PART OF A RATHER RECENT CHAPTER IN THE LONG HISTORY
OF FLOOD CONTROL ON THE MISSISSIPPI RIVER.  FN5  THE FEDERAL GOVERNMENT
HAD CONCERNED ITSELF WITH THE PROBLEMS OF NAVIGATION AND FLOOD CONTROL
ON THAT RIVER LONG BEFORE  FN6  THE ESTABLISHMENT OF THE MISSISSIPPI
RIVER COMMISSION (21 STAT. 37) IN 1879.  EARLIER EFFORTS TOWARDS A MORE
COMPREHENSIVE FLOOD-CONTROL PROGRAM ON A NATIONAL SCALE  FN7  WERE
ACCELERATED BY THE DISASTROUS MISSISSIPPI FLOOD IN 1927.  THE AGITATION
AND CONCERN OVER THAT DISASTER  FN8  LED TO THE ENACTMENT OF THE FLOOD
CONTROL ACT OF MAY 15, 1928(45 STAT. 534), SEC. 10 OF WHICH PROVIDED
THAT THE SECRETARY OF WAR SHOULD SUBMIT TO CONGRESS "AT THE EARLIEST
PRACTICABLE DATE PROJECTS FOR FLOOD CONTROL ON ALL TRIBUTARY STREAMS OF
THE MISSISSIPPI RIVER SYSTEM SUBJECT TO DESTRUCTIVE FLOODS WHICH
PROJECTS SHALL INCLUDE:  THE RED RIVER AND TRIBUTARIES  ...  "  THAT
CONTROL OF THE LOWER MISSISSIPPI TO BE ATTAINED THROUGH THE USE OF A
RESERVOIR SYSTEM, THE "BENEFITS THAT WILL ACCRUE TO NAVIGATION AND
AGRICULTURE" FROM THE PREVENTION OF SILTAGE AND EROSION, THE
"PROSPECTIVE INCOME FROM THE DISPOSAL OF RESERVOIRED WATERS," AND
"INQUIRY AS TO THE RETURN FLOW OF WATERS PLACED IN THE SOILS FROM
RESERVOIRS, AND AS TO THEIR STABILIZING EFFECT ON STREAM FLOW AS A
MEANS OF PREVENTING EROSION, SILTAGE, AND IMPROVING NAVIGATION." 
PURSUANT TO THAT AUTHORIZATION AND DIRECTION, A REPORT (H. DOC. NO.
378, 74TH CONG., 2D SESS.) WAS SUBMITTED ON DECEMBER 2, 1935, DEALING
AT GREAT LENGTH WITH THE PROBLEMS OF THE RED RIVER AND ITS TRIBUTARIES,
AND THEIR RELATIONSHIP WITH THE MISSISSIPPI. 

ON JUNE 22, 1936, THERE WAS ENACTED  FN9  THE FLOOD CONTROL ACT OF
1936(49 STAT. 1570).  SEC. 1 OF THAT ACT SET FORTH A BROAD
CONGRESSIONAL POLICY, STATING, INTER ALIA, 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" AND THAT "DESTRUCTIVE FLOODS UPON THE
RIVERS OF THE UNITED STATES, UPSETTING ORDERLY PROCESSES AND CAUSING
LOSS OF LIFE AND PROPERTY, INCLUDING THE EROSION OF LANDS, AND
IMPAIRING AND OBSTRUCTING NAVIGATION, HIGHWAYS, RAILROADS, AND OTHER
CHANNELS OF COMMERCE BETWEEN THE STATES, CONSTITUTE A MENACE TO
NATIONAL WELFARE."  THAT ACT AUTHORIZED THE CONSTRUCTION OF VARIOUS
FLOOD-CONTROL PROJECTS.  BY SEC. 7 OF THAT ACT THE SECRETARY OF WAR WAS
AUTHORIZED AND DIRECTED TO CONTINUE THE INVESTIGATION OF OTHER
PROJECTS, INCLUDING THE DENISON RESERVOIR, WHERE "OPPORTUNITIES APPEAR
TO EXIST FOR USEFUL FLOOD-CONTROL OPERATIONS WITH ECONOMICAL
DEVELOPMENT OF HYDROELECTRIC POWER WHENEVER SUFFICIENT MARKETS TO
ABSORB SUCH POWER BECOME AVAILABLE." 

FOLLOWING THE DISASTROUS OHIO RIVER FLOOD IN JANUARY, 1937, THE HOUSE
COMMITTEE ON FLOOD CONTROL REQUESTED  FN10  THE CHIEF OF ENGINEERS TO
SUBMIT "COMPREHENSIVE PLANS FOR PROTECTIVE WORKS AGAINST FLOODS IN THE
OHIO VALLEY" AND PLANS "TO FURTHER INSURE PROTECTION IN THE MISSISSIPPI
VALLEY."  HE SUBMITTED A REPORT PURSUANT TO THAT DIRECTION, AND
RECOMMENDED THE CONSTRUCTION OF 45 FLOOD-CONTROL RESERVOIRS ON THE
TRIBUTARIES OF THE OHIO AND 24 ON OTHER TRIBUTARIES OF THE MISSISSIPPI,
INCLUDING THE RED RIVER.  FN11  AS TO THE PROPOSED DENISON RESERVOIR,
HE STATED THAT IT "WOULD REMOVE THE THREAT OF THE COINCIDENCE OF A
LARGE FLOOD FROM THE RED WITH A FLOOD IN THE MISSISSIPPI, AND WOULD
ALSO AFFORD HIGHLY DESIRABLE PROTECTION TO THE FERTILE BOTTOM LANDS IN
THE LOWER RED RIVER VALLEY.  BESIDES ITS FLOOD-CONTROL BENEFITS, IT HAS
VALUABLE POTENTIALITY FOR POWER PURPOSES."  FN12  AND HE ADDED:  "ON
THE RED RIVER  ...  INVESTIGATIONS INDICATE THAT A FLOOD FAR EXCEEDING
ANY OF RECORD IS DISTINCTLY POSSIBLE.  THE DENISON RESERVOIR WOULD
PREVENT SUCH A FLOOD FROM REACHING DISASTROUS PROPORTIONS IN THE VALLEY
BELOW IT."  FN13 

ON MARCH 12, 1938, THE ACTING SECRETARY OF WAR TRANSMITTED TO
CONGRESS A REPORT FROM THE CHIEF OF ENGINEERS, UNITED STATES ARMY,
PURSUANT TO THE DIRECTION CONTAINED IN SEC. 7 OF THE FLOOD CONTROL ACT
OF 1936.  THAT REPORT, BEING THE ONE HERE INVOLVED, (H. DOC. NO. 541,
75TH CONG., 3D SESS.) RECOMMENDED THE CONSTRUCTION OF A DAM NEAR
DENISON, TEXAS, FOR THE COMBINED PURPOSE OF FLOOD CONTROL AND
DEVELOPMENT OF HYDROELECTRIC POWER.  AFTER HEARINGS,  FN14  CONGRESS
PASSED THE FLOOD CONTROL ACT OF 1938, HERE CHALLENGED, WHICH
AUTHORIZED,  FN15  INTER ALIA, THE DENISON PROJECT ON THE BASIS OF THE
REPORT AND AT AN ESTIMATED COST OF $54,000,000.  THIS WAS FOLLOWED BY
APPROPRIATIONS FOR THE CONSTRUCTION WORK  FN16  AND BY THE ACT OF
OCTOBER 17, 1940, ALSO CHALLENGED BY APPELLANT, DECLARING THE DENISON
RESERVOIR TO BE "FOR THE PURPOSE OF IMPROVING NAVIGATION, REGULATING
THE FLOW OF THE RED RIVER, CONTROLLING FLOODS, AND FOR OTHER BENEFICIAL
USES."  FN17  THUS, WHILE THE REPORT SPOKE OF THE DAM AS A "DUAL
PURPOSE" PROJECT, CONGRESS DID NOT SO LIMIT IT BUT AUTHORIZED IT FOR
MULTIPLE PURPOSES.    FROM THIS HISTORY IT IS PLAIN THAT THIS PROJECT,
WHICH IS PART OF A COMPREHENSIVE FLOOD-CONTROL PLAN, IS DESIGNED TO
CONTROL THE WATERSHED OF ONE OF THE PRINCIPAL TRIBUTARIES OF THE
MISSISSIPPI IN ALLEVIATION OF FLOODS IN THE LOWER RED RIVER AND
MISSISSIPPI VALLEYS.  THE RED RIVER, SIXTH IN LENGTH AMONG RIVERS IN
THE UNITED STATES, HAS ONE OF THE LARGEST WATERSHEDS IN THE COUNTRY,
DRAINING AN AREA ABOUT 50 PER CENT LARGER THAN NEW ENGLAND - AN AREA OF
91,430 SQUARE MILES, OF WHICH 38,291 SQUARE MILES ARE ABOVE THE DAM
SITE.  FN18  IT RISES NEAR THE EAST EDGE OF NEW MEXICO, FLOWS EASTERLY
ABOUT 850 MILES ACROSS THE TEXAS PANHANDLE AND BETWEEN THE STATES OF
OKLAHOMA AND TEXAS TO FULTON, ARKANSAS.  FROM THERE IT FLOWS SOUTH AND
SOUTHEAST SOME 460 MILES AND ENTERS THE MISSISSIPPI AT RED RIVER
LANDING.  THE SITE OF THE DENISON DAM IS 228 MILES UP THE RIVER FROM
FULTON.  THE CONTRIBUTION WHICH THE RED RIVER MAKES TO DISASTROUS
FLOODS IN ITS BASIN AND IN THE LOWER MISSISSIPPI HAS LONG BEEN
RECOGNIZED.  HUGE CROP DAMAGE, THE LOSS OF BUILDINGS, BRIDGES AND
LIVESTOCK, POLLUTION OF FERTILE FIELDS, THE EROSION OF RICH FARM LANDS,
BANK CAVINGS, INTERRUPTION OF NAVIGATION, INJURY OF PORT FACILITIES,
THE CREATION OF SAND BARS IN THE CHANNELS, INTERRUPTION OR STOPPAGE OF
INTERSTATE TRANSPORTATION BY RAIL, TRUCK AND MOTORCAR, DISEASE,
PESTILENCE AND DEATH, RELIEF OF THE HOMELESS AND DESTITUTE - ALL THESE
ARE NOW FAMILIAR COSTS OF THE FLOODS ON THE MISSISSIPPI.  FN19  AND THE
HISTORY OF THE RED RIVER VALLEY SHOWS THAT IT HAS LONG BEEN PLAGUED BY
SUCH DISASTERS AND BURDENED BY THEIR COSTS.  FN20 

FLOODS PAY NO RESPECT TO STATE LINES.  FN21  THEIR EFFECTIVE CONTROL
IN THE MISSISSIPPI VALLEY HAS BECOME INCREASINGLY A SUBJECT OF NATIONAL
CONCERN,  FN22  IN RECOGNITION OF THE FACT THAT SINGLE STATES ARE
IMPOTENT TO COPE WITH THEM EFFECTIVELY.  THE METHODS OF DEALING WITH
THEM HAVE ELICITED A CONTRARIETY OF VIEWS..  FN23 

THE IDEA OF RESERVOIR CONTROL ON THE TRIBUTARIES OF THE MISSISSIPPI
IS NOT NEW.  THE ELLET REPORT  FN24  TO THE WAR DEPARTMENT IN 1852
URGED THE MAKING OF SURVEYS FOR THE INSTALLATION OF RESERVOIRS ON THE
RED RIVER AND OTHER TRIBUTARIES WHICH WOULD SERVE THE "DOUBLE PURPOSE"
OF "KEEPING BACK THE FLOODS" AND RELIEVING "SUMMER NAVIGATION FROM
OBSTRUCTION, BY ALLOWING THE SURPLUS SO RETAINED, TO PASS DOWN IN THE
SEASON OF LOW WATER."  FN25  THE EMERGENCE IN RECENT YEARS OF
COMPREHENSIVE PLANS FOR RESERVOIRS IN THE MISSISSIPPI RIVER BASIN  FN26
MARKS THE DEVELOPMENT OF AN INTEGRATED SYSTEM DESIGNED NOT ONLY TO
ALLEVIATE, ULTIMATELY, FLOOD CONDITIONS ON THE MISSISSIPPI ITSELF, BUT
ALSO TO AVOID OR REDUCE LOCAL FLOOD DISASTERS.  A PART OF THE LOCAL
BENEFITS OF FLOOD CONTROL IS FREQUENTLY PROTECTION OF NAVIGATION IN THE
TRIBUTARY ITSELF.  THAT IS PRESENT HERE TO A DEGREE.  IT IS TRUE THAT
"NO PART OF THE (RED) RIVER WITHIN OKLAHOMA IS NAVIGABLE."  OKLAHOMA V.
TEXAS, 258 U.S. 574, 591.  THOUGH APPELLANT ALLEGED THAT THE STREAM IS
NOT NOW A NAVIGABLE RIVER OF THE UNITED STATES, IT HAS HERETOFORE BEEN
AUTHORITATIVELY DETERMINED THAT IN YEARS PAST "THE USUAL HEAD OF
NAVIGATION" WAS LANESPORT, ARKANSAS, NEAR THE OKLAHOMA BOUNDARY.  ID.,
P. 589.  AT THE PRESENT TIME, COMMERCE ON THE RED RIVER IS LIMITED TO
THE SECTION BELOW ALEXANDRIA, LOUISIANA, 122 MILES ABOVE ITS MOUTH. 
FN27  THE FACT THAT PORTIONS OF A RIVER ARE NO LONGER USED FOR COMMERCE
DOES NOT DILUTE THE POWER OF CONGRESS OVER THEM.  ECONOMY LIGHT & POWER
CO. V. UNITED STATES, 256 U.S. 113, 123; UNITED STATES V. APPALACHIAN
POWER CO., 311 U.S. 377, 409-410.  AND IT IS CLEAR THAT CONGRESS MAY
EXERCISE ITS CONTROL OVER THE NON-NAVIGABLE STRETCHES OF A RIVER IN
ORDER TO PRESERVE OR PROMOTE COMMERCE ON THE NAVIGABLE PORTIONS. 
UNITED STATES V. RIO GRANDE DAM & IRRIGATION CO., 174 U.S. 690, 703,
706, 708; UNITED STATES V. UTAH, 283 U.S. 64, 90.  IT IS OBVIOUS THAT,
AT LEAST INCIDENTALLY, CONGRESS HAS DONE PRECISELY THAT IN THIS CASE. 
CONGRESS WAS NOT UNMINDFUL OF THE EFFECT OF THIS PROJECT ON THE
NAVIGABLE CAPACITY OF THE RIVER.  IN AUTHORIZING IT, CONGRESS EXERCISED
ALL THE POWER IT POSSESSED TO CONTROL NAVIGABLE WATERS.  THE ACTS IN
QUESTION CONTAIN A DECLARATION THAT ONE OF THEIR PURPOSES IS TO IMPROVE
NAVIGATION.  AND THE REPORT CLEARLY SHOWS THAT THE DENISON RESERVOIR
WILL HAVE AT LEAST AN INCIDENTAL EFFECT IN PROTECTING OR IMPROVING THE
NAVIGABILITY OF PORTIONS OF THE RED RIVER.  THE DISTRICT ENGINEER
REPORTED THAT "INASMUCH AS ANY NEW NAVIGATION SYSTEM FOR THE RED RIVER
WOULD REQUIRE FLOW REGULATION TO FURNISH A DEPENDABLE NAVIGABLE
IMPROVEMENT, THE DENISON RESERVOIR WOULD BE OF CONSIDERABLE BENEFIT." 
FN28  IN HIS VIEW, IT WOULD DECREASE BANK CAVING AND SILT CARRIAGE,
SUBSTITUTE "MODERATELY HIGH STAGES OF LONG DURATIONS FOR HIGH-FLOOD
STAGES OF SHORT DURATION," "FURNISH MORE DEPENDABLE NAVIGABLE STAGES
ESPECIALLY IN THE UPPER PORTIONS OF THE NAVIGATION POOLS,"  FN29  AND
HAVE A "FAVORABLE EFFECT ON OPEN-CHANNEL NAVIGATION BY REDUCING FLOOD
STAGES AND INCREASING LOW-WATER FLOWS."  FN30  THE DIVISION ENGINEER
EXPRESSED THE VIEW THAT A "DEPENDABLE LOW-WATER FLOW OF 2,200 TO 3,000
CUBIC FEET PER SECOND WHICH WOULD RESULT FROM CONSTRUCTION AND
OPERATION OF THE POWER PROJECT AT DENISON WOULD BE OF DISTINCT BENEFIT
TO THE SMALL COMMERCE NOW DEVELOPED UPON THOSE REACHES OF THE LOWER RED
RIVER WHICH ARE INCLUDED IN APPROVED NAVIGATION PROJECTS, AND MIGHT
HAVE A MATERIAL BEARING UPON FUTURE STUDIES OF THE RED RIVER WITH A
VIEW TO ITS FURTHER IMPROVEMENT.  IN THE PRESENT STATE OF KNOWLEDGE
UPON THIS POINT, IT IS NECESSARY TO CLASSIFY THESE BENEFITS AMONG THE
INTANGIBLES.  BUT THERE IS NO DOUBT THAT A DEPENDABLE LOW WATER SUPPLY
WOULD SIMPLIFY, PERHAPS MATERIALLY, SUCH FUTURE DEVELOPMENT OF THE
RIVER AS MAY BE UNDERTAKEN."  FN31  THUS THE EFFECT ON THE RIVER IS
TANGIBLE, THOUGH THE VALUE MAY BE UNCERTAIN  FN32  SINCE IT DEPENDS IN
PART ON FUTURE ACTION OF CONGRESS.  BUT THAT IS NOT OUR CONCERN. 

WE WOULD, HOWEVER, BE LESS THAN FRANK IF WE FAILED TO RECOGNIZE THIS
PROJECT AS PART OF A COMPREHENSIVE FLOOD-CONTROL PROGRAM FOR THE
MISSISSIPPI ITSELF.  BUT THERE IS NO CONSTITUTIONAL REASON WHY CONGRESS
OR THE COURTS SHOULD BE BLIND TO THE ENGINEERING PROSPECTS OF
PROTECTING THE NATION'S ARTERIES OF COMMERCE THROUGH CONTROL OF THE
WATERSHEDS.  THERE IS NO CONSTITUTIONAL REASON WHY CONGRESS CANNOT,
UNDER THE COMMERCE POWER, TREAT THE WATERSHEDS AS A KEY TO FLOOD
CONTROL ON NAVIGABLE STREAMS AND THEIR TRIBUTARIES.  NOR IS THERE A
CONSTITUTIONAL NECESSITY FOR VIEWING EACH RESERVOIR PROJECT IN
ISOLATION FROM A COMPREHENSIVE PLAN COVERING THE ENTIRE BASIN OF A
PARTICULAR RIVER.  WE NEED NO SURVEY TO KNOW THAT THE MISSISSIPPI IS A
NAVIGABLE RIVER.  WE NEED NO SURVEY TO KNOW THAT THE TRIBUTARIES ARE
GENEROUS CONTRIBUTORS TO THE FLOODS OF THE MISSISSIPPI.  AND IT IS
COMMON KNOWLEDGE THAT MISSISSIPPI FLOODS HAVE PARALYZED COMMERCE  FN33
IN THE AFFECTED AREAS AND HAVE IMPAIRED NAVIGATION ITSELF.  WE HAVE
RECENTLY RECOGNIZED THAT "FLOOD PROTECTION, WATERSHED DEVELOPMENT,
RECOVERY OF THE COST OF IMPROVEMENTS THROUGH UTILIZATION OF POWER ARE
...  PARTS OF COMMERCE CONTROL."  UNITED STATES V. APPALACHIAN POWER
CO., SUPRA, P. 426.  AND WE NOW ADD THAT THE POWER OF FLOOD CONTROL
EXTENDS TO THE TRIBUTARIES OF NAVIGABLE STREAMS.  FOR, JUST AS CONTROL
OVER THE NON-NAVIGABLE PARTS OF A RIVER MAY BE ESSENTIAL OR DESIRABLE
IN THE INTERESTS OF THE NAVIGABLE PORTIONS, SO MAY THE KEY TO FLOOD
CONTROL ON A NAVIGABLE STREAM BE FOUND IN WHOLE OR IN PART IN FLOOD
CONTROL ON ITS TRIBUTARIES.  AS REPEATEDLY RECOGNIZED BY THIS COURT
FROM M'CULLOCH V. MARYLAND, 4 WHEAT.  316, TO UNITED STATES V. DARBY,
312 U.S. 100, THE EXERCISE OF THE GRANTED POWER OF CONGRESS TO REGULATE
INTERSTATE COMMERCE MAY BE AIDED BY APPROPRIATE AND NEEDFUL CONTROL OF
ACTIVITIES AND AGENCIES WHICH, THOUGH INTRASTATE, AFFECT THAT
COMMERCE. 

IT IS, OF COURSE, TRUE THAT THE EXTENT TO WHICH THIS PROJECT WILL
ALLEVIATE FLOOD CONDITIONS IN THE LOWER MISSISSIPPI IS SOMEWHAT
CONJECTURAL.  THE DISTRICT ENGINEER ESTIMATED THAT THE DENISON PROJECT
WOULD CAUSE A REDUCTION OF 35,000 CUBIC FEET PER SECOND IN THE LOWER
MISSISSIPPI IN CASE THE MAY, 1908, FLOOD WERE REPEATED; 8,000 CUBIC
FEET PER SECOND, IN CASE OF THE MAY, 1935, FLOOD; AND 100,000 CUBIC
FEET PER SECOND, IN CASE OF THE ESTIMATED MAXIMUM PROBABLE FLOOD.  FN34
BUT THE DIVISION ENGINEER POINTED OUT THAT "THE MAGNITUDE OF THE
EFFECT WOULD DEPEND UPON THE SIZE AND ORIGIN OF THE CONCURRENT FLOOD IN
RED RIVER, AND UPON THE BASIS OF RESERVOIR OPERATION."  FN35  IN HIS
VIEW, A REDUCTION IN FLOW OF 35,000 CUBIC FEET PER SECOND IN CASE OF
SUCH A FLOOD AS 1908 "IF LONG ENOUGH SUSTAINED, WOULD IMPLY A REDUCTION
IN STAGE AVERAGING 1.3 FEET BETWEEN ALEXANDRIA AND MONCLA, AND A
REDUCTION OF 0.15 FOOT IN THE FLOW LINES OF THE ATCHAFALAYA BASIN AND
THE MAIN RIVER BELOW OLD RIVER, PROVIDED THEY WERE AT PEAK STAGE.  AT
LOWER STAGES THE EFFECT WOULD BE GREATER, BUT LESS NECESSARY."  FN36
THIS MATTER WAS AGAIN REVIEWED IN THE DEFINITE PROJECT AND THE
FOLLOWING OBSERVATIONS WERE MADE:  FN37  "FLOODS IN THE MISSISSIPPI
RIVER USUALLY OCCUR IN THE SPRING AS A RESULT OF FLOOD FLOWS OUT OF THE
OHIO RIVER.  THE COINCIDENCE OF FLOOD FLOWS OUT OF THE RED RIVER WITH
THE MISSISSIPPI RIVER SPRING FLOODS IS RARE.  HOWEVER, THE EARLY SUMMER
FLOODS OUT OF THE MISSOURI RIVER OCCASIONALLY COINCIDE IN THE
MISSISSIPPI RIVER WITH THE SUMMER FLOODS OUT OF THE RED RIVER.  THE
CONTROL PROVIDED BY THE PROPOSED DENISON DAM AND RESERVOIR ON THE RED
RIVER SUMMER FLOODS HAS BEEN ESTIMATED TO PRODUCE A REDUCTION OF
APPROXIMATELY 0.6 FOOT AT THE MOUTH OF OLD RIVER ON THE MISSISSIPPI. 
THIS REDUCTION, WHILE NOT SUBSTANTIAL WITH RESPECT TO MISSISSIPPI FLOOD
STAGES, IS IMPORTANT WHEN FLOOD CRESTS SERIOUSLY TAX THE MISSISSIPPI
LEVEE SYSTEM." 

SUCH MATTERS RAISE NOT CONSTITUTIONAL ISSUES BUT QUESTIONS OF
POLICY.  THEY RELATE TO THE WISDOM, NEED, AND EFFECTIVENESS OF A
PARTICULAR PROJECT.  THEY ARE THEREFORE QUESTIONS FOR THE CONGRESS, NOT
THE COURTS.  FOR US TO INQUIRE WHETHER THIS RESERVOIR WILL EFFECT A
SUBSTANTIAL REDUCTION IN THE LOWER MISSISSIPPI FLOODS WOULD BE TO
EXERCISE A LEGISLATIVE JUDGMENT BASED ON A COMPLEXITY OF ENGINEERING
DATA.  IT IS FOR CONGRESS ALONE TO DECIDE WHETHER A PARTICULAR PROJECT,
BY ITSELF OR AS PART OF A MORE COMPREHENSIVE SCHEME, WILL HAVE SUCH A
BENEFICIAL EFFECT ON THE ARTERIES OF INTERSTATE COMMERCE AS TO WARRANT
IT.  THAT DETERMINATION IS LEGISLATIVE IN CHARACTER.  CF. UNITED STATES
V. APPALACHIAN POWER CO., SUPRA, P. 424.  THE NATURE OF THE JUDGMENT
INVOLVED IS REEMPHASIZED IF THIS PROJECT IS VIEWED NOT IN ISOLATION BUT
AS PART OF A COMPREHENSIVE, INTEGRATED RESERVOIR SYSTEM IN THE
MISSISSIPPI RIVER BASIN.  A WAR DEPARTMENT SURVEY IN 1935 REVEALS
PROMISING ENGINEERING PROSPECTS IN A SYSTEM OF 157 RESERVOIRS N38
THROUGHOUT THE TRIBUTARIES OF THE MISSISSIPPI.  TO SAY THAT NO ONE OF
THOSE PROJECTS COULD BE CONSTITUTIONALLY AUTHORIZED BECAUSE ITS
SEPARATE EFFECT ON FLOODS IN THE MISSISSIPPI WOULD BE TOO CONJECTURAL
WOULD BE TO DENY THE ACTUAL OR POTENTIAL AGGREGATE BENEFITS OF THE
INTEGRATED SYSTEM AS A WHOLE.  THAT REVEALS THE NECESSITY, FROM THE
CONSTITUTIONAL VIEWPOINT, OF LEAVING TO CONGRESS THE DECISION AS TO
WHAT WATERSHEDS SHOULD BE CONTROLLED (AND WHAT METHODS SHOULD BE
EMPLOYED) IN ORDER TO PROTECT THE VARIOUS ARTERIES OF INTERSTATE
COMMERCE FROM THE DISASTERS OF FLOODS. 

NOR IS IT FOR US TO DETERMINE WHETHER THE RESULTING BENEFITS TO
COMMERCE AS A RESULT OF THIS PARTICULAR EXERCISE BY CONGRESS OF THE
COMMERCE POWER OUTWEIGH THE COSTS OF THE UNDERTAKING.  ARIZONA V.
CALIFORNIA, 283 U.S. 423, 456-457; ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 329-330.  NOR MAY WE INQUIRE INTO THE MOTIVES
OF MEMBERS OF CONGRESS WHO VOTED FOR THIS PROJECT, IN AN ENDEAVOR TO
ASCERTAIN WHETHER THEIR CONCERN OVER THE GREAT NATIONAL LOSS FROM SOIL
EROSION, THE ENORMOUS CROP DAMAGES, THE DESTRUCTION OF HOMES, THE LOSS
OF LIFE AND OTHER LIKE RAVAGES OF FLOODS, OVERSHADOWED IN THEIR MINDS
THE DESIRABILITY OF PROTECTING THE MISSISSIPPI AND OTHER ARTERIES OF
COMMERCE.  ARIZONA V. CALIFORNIA, SUPRA, P. 455, AND CASES CITED.  IT
IS SUFFICIENT FOR US THAT CONGRESS HAS EXERCISED ITS COMMERCE POWER,
THOUGH OTHER PURPOSES WILL ALSO BE SERVED.  ID., P. 456. 

BUT OKLAHOMA POINTS OUT THAT THE DENISON RESERVOIR IS A MULTIPLE
PURPOSE PROJECT,  FN39 COMBINING FUNCTIONALLY AND PHYSICALLY SEPARATE
AND UNRELATED PURPOSES.  IT SAYS THAT ONLY THE TOP 40 FEET OF THE DAM
IS SET APART FOR FLOOD CONTROL AND THAT THE LOWER PORTIONS OF THE DAM
ARE DESIGNED FOR THE POWER PROJECT AND ARE NEITHER USEFUL NOR NECESSARY
FOR FLOOD CONTROL.  IT POINTS OUT FROM THE REPORT N40 THAT A RESERVOIR
FOR FLOOD CONTROL ONLY WOULD HAVE A MAXIMUM HEIGHT OF 165 FEET, WHILE A
RESERVOIR FOR FLOOD CONTROL AND POWER DEVELOPMENT WOULD REQUIRE A
MAXIMUM HEIGHT OF 185 FEET.  IT THEREFORE EARNESTLY CONTENDS THAT THE
ADDITIONAL 20 FEET IN HEIGHT OF THE DAM REQUIRES A VERY MUCH GREATER
ACREAGE OF APPELLANT'S DOMAIN THAN WOULD A PROJECT FOR FLOOD CONTROL
ONLY.  AND IT INSISTS THAT CONGRESS IS WITHOUT AUTHORITY TO AUTHORIZE A
TAKING OF OKLAHOMA'S DOMAIN FOR THE CONSTRUCTION OF THE WATER POWER
FEATURE OF THE PROJECT. 

THERE ARE SEVERAL ANSWERS TO THESE CONTENTIONS.  WE ARE NOT CONCERNED
HERE WITH THE QUESTION AS TO THE AUTHORITY OF THE FEDERAL GOVERNMENT TO
ESTABLISH ON A NON-NAVIGABLE STREAM A POWER PROJECT WHICH HAS NO
RELATION TO, OR IS NOT A PART OF, A FLOOD-CONTROL PROJECT.  WHILE THIS
RESERVOIR IS A MULTIPLE-PURPOSE PROJECT, IT IS BASICALLY ONE FOR FLOOD
CONTROL.  THERE IS NO INDICATION THAT BUT FOR FLOOD CONTROL IT WOULD
HAVE BEEN PROJECTED.  IT ORIGINATED AS PART OF A COMPREHENSIVE PROGRAM
FOR FLOOD CONTROL.  AND THE RECOMMENDATION IN THE REPORT THAT A DUAL
PURPOSE DAM BE CONSTRUCTED WAS BASED "ON THE ASSUMPTION THAT THE FLOOD
CONTROL PROJECT IS TO BE BUILT IN ANY EVENT."  FN41 SEE UNITED STATES
V. CHANDLER-DUNBAR CO., 229 U.S. 53, 73.  FURTHERMORE, IT IS PLAIN FROM
THE REPORT THAT THE CONSTRUCTION OF THE PROJECT SO AS TO ACCOMMODATE
POWER WILL INCREASE OR AUGMENT SOME OF THE FLOOD-CONTROL BENEFITS,
INCLUDING RIVER FLOW, WHICH WOULD ACCRUE WERE THE DAM TO BE ERECTED FOR
FLOOD CONTROL ONLY.  THUS, THE DISTRICT ENGINEER STATED:  "IF IT WERE
CONSTRUCTED SOLELY FOR FLOOD CONTROL IT WOULD HAVE BENEFICIAL EFFECTS
IN REDUCING FLOODS, DECREASING BANK CAVING AND SILT CARRIAGE, AND IN
SUBSTITUTING MODERATELY HIGH STAGES OF LONG DURATIONS FOR HIGH-FLOOD
STAGES OF SHORT DURATION.  IF THE DENISON RESERVOIR WERE CONSTRUCTED
FOR THE DUAL PURPOSES OF FLOOD CONTROL AND POWER DEVELOPMENT, THESE
BENEFICENT EFFECTS WOULD BE AUGMENTED BY THOSE RESULTING FROM THE
REGULATED POWER DISCHARGE WHICH WOULD INCREASE LOW-WATER FLOWS AND
FURNISH MORE DEPENDABLE NAVIGABLE STAGES ESPECIALLY IN THE UPPER
PORTIONS OF THE NAVIGATION POOLS."  FN42 

IT IS TRUE THAT THE POWER PHASE OF THIS PROJECT IN PURPOSE AND EFFECT
WILL CARRY SOME OF THE COSTS OF FLOOD CONTROL.  THE DIVISION ENGINEER
ESTIMATED THAT THE ANNUAL DEFICIT OF $287,000 FROM FLOOD CONTROL WOULD
BE OFFSET BY AN ANNUAL PROFIT OF $404,310 FROM POWER, LEAVING AN ANNUAL
NET PROFIT OF $117,000.  FN43  BUT THE FACT THAT CONGRESS HAS
INTRODUCED POWER DEVELOPMENT INTO THIS PROJECT AS A PAYING PARTNER
FN44  DOES NOT DEROGATE FROM THE AUTHORITY OF CONGRESS TO CONSTRUCT THE
DAM FOR FLOOD CONTROL, INCLUDING RIVER FLOW.  THE POWER PROJECT IS NOT
UNRELATED TO THOSE PURPOSES.  FN45  THE ALLOCATIONS OF COST  FN46  AND
STORAGE BETWEEN POWER AND FLOOD CONTROL, HOWEVER SIGNIFICANT FOR SOME
PURPOSES, CANNOT CONCEAL THE FLOOD-CONTROL REALITIES OF THIS TOTAL
PROJECT.  COST OF THE POWER PROJECT, ROUGHLY SPEAKING, WAS DETERMINED
BY THE COST OF THE MULTIPLE-PURPOSE DAM LESS THE COST OF A DAM FOR
FLOOD CONTROL ONLY.  FN47  ON THAT BASIS THE REPORT POINTS OUT THAT THE
COST OF STORAGE FOR FLOOD CONTROL ONLY (5,800,000 ACRE-FEET) IS ABOUT
$6.60 PER ACRE-FOOT, WHILE THE COST OF THE 3,500,000 ACRE-FEET IN THE
SO-CALLED POWER POOL IS AROUND $2 PER ACRE-FOOT, EXCLUSIVE OF THE COST
OF THE POWERHOUSE AND APPURTENANT CONSTRUCTION.  FN48  IN THIS
CONNECTION, THE DEFINITE PROJECT STATES THAT THE "AMOUNT OF STORAGE
WHICH CAN BE ECONOMICALLY ALLOCATED TO THE PRODUCTION OF POWER DEPENDS
ON THE ABILITY OF THE POWER MARKET TO ABSORB THE POWER DURING THE
USEFUL LIFE OF THE PROJECT."  FN49  BUT THE DIVISION ENGINEER OBSERVED
THAT "IN ACTUAL OPERATION OF THE DUAL-PURPOSE PROJECT THIS CHEAP
STORAGE WOULD BE DEDICATED TO FLOOD CONTROL, WHEREAS IN THE FINANCIAL
SET-UP IT IS CREDITED TO POWER."  FN50  IT IS CLEAR FROM THE REPORT
FN51  AND THE DEFINITE PROJECT, THAT THE BOTTOM POOL OF DEAD STORAGE IS
DESIGNED TO TAKE CARE OF THE DEPOSIT OF SILT "WHICH WOULD OTHERWISE
REDUCE THE EFFICIENCY AND ECONOMIC WORTH OF THE FLOOD CONTROL
STORAGE."  FN52  AT THE SAME TIME, IT WILL EFFECTIVELY PROVIDE
WATERPOWER HEAD.  AND SO FAR AS THE POWER STORAGE IS CONCERNED, THE
DEFINITE PROJECT MAKES PLAIN THAT IT IS FUNCTIONALLY RELATED TO THE
BROAD OBJECTIVES OF FLOOD CONTROL.  THE OPERATION OF THE RESERVOIR WILL
INVOLVE A CONSIDERATION OF ITS MULTIPLE PURPOSES.  FN53  ITS OPERATION
IN PERIODS OF DROUGHT SO AS TO REGULARIZE THE FLOW BELOW THE DAM; FN54
THE REDUCTION IN RESERVOIR OUTFLOW IN CASE OF FLOODS DOWN THE VALLEY;
THE INCREASE OF THE OUTFLOW, IN CASE OF IMPENDING FLOODS FROM ABOVE THE
DAM, TO THE MAXIMUM "BANK FULL CAPACITY DOWNSTREAM OF THE DAM, SO THAT
THE MAXIMUM AMOUNT OF FLOOD CONTROL STORAGE WILL BE AVAILABLE WHEN THE
PEAK OF THE FLOOD REACHES THE RESERVOIR, THEREBY REDUCING THE PEAK
OUTFLOW OF THE RESERVOIR TO A MINIMUM"  FN55  - THESE ARE AMPLE
EVIDENCE THAT THE POWER FEATURES AND THE FLOOD-CONTROL FEATURES OF THE
DAM, INCLUDING RIVER FLOW, ARE NOT UNRELATED.  THEY DEMONSTRATE THAT,
IN OPERATION OF THE DAM, THE SEVERAL FUNCTIONS WILL BE INTERDEPENDENT,
AND THAT THE CONFLICTS BETWEEN THE RESPECTIVE REQUIREMENTS OF FLOOD
CONTROL AND POWER DEVELOPMENT ARE HERE MORE APPARENT THAN REAL.  FN56
THEY SHOW THAT THIS IS NONETHELESS A FLOOD-CONTROL PROJECT WHICH WILL
"FULLY CONTROL THE MAXIMUM FLOOD OF RECORD,"  FN57  THOUGH POWER, IT IS
HOPED, WILL PAY THE WAY.  WHETHER THE WORK OF FLOOD-CONTROL, INCLUDING
RIVER FLOW, WOULD BE BETTER DONE BY A DAM OF ONE DESIGN OR ANOTHER IS
FOR CONGRESS TO DETERMINE.  AND, AS WE HAVE SAID, THE FACT THAT ENDS
OTHER THAN FLOOD CONTROL WILL ALSO BE SERVED, OR THAT FLOOD CONTROL MAY
BE RELATIVELY OF LESSER IMPORTANCE, DOES NOT INVALIDATE THE EXERCISE OF
THE AUTHORITY CONFERRED ON CONGRESS.  KAUKAUNA WATER POWER CO. V. GREEN
BAY & MISSISSIPPI CANAL CO., 142 U.S. 254, 275, 276; SEE IN RE KOLLOCK,
165 U.S. 526, 536; WEBER V. FREED, 239 U.S. 325, 329-330; ARIZONA V.
CALIFORNIA, SUPRA, P. 456. 

THE TENTH AMENDMENT DOES NOT DEPRIVE "THE NATIONAL GOVERNMENT OF
AUTHORITY TO RESORT TO ALL MEANS FOR THE EXERCISE OF A GRANTED POWER
WHICH ARE APPROPRIATE AND PLAINLY ADAPTED TO THE PERMITTED END." 
UNITED STATES V. DARBY, SUPRA, P. 124, AND CASES CITED.  SINCE THE
CONSTRUCTION OF THIS DAM AND RESERVOIR IS A VALID EXERCISE BY CONGRESS
OF ITS COMMERCE POWER, THERE IS NO INTERFERENCE WITH THE SOVEREIGNTY OF
THE STATE.  FN58  UNITED STATES V. APPALACHIAN POWER CO., SUPRA, P.
428.  THE FACT THAT LAND IS OWNED BY A STATE IS NO BARRIER TO ITS
CONDEMNATION BY THE UNITED STATES.  WAYNE COUNTY V. UNITED STATES, 53
CT. CLS. 417, AFF'D 252 U.S. 574.  THERE IS NO COMPLAINT THAT ANY
PROPERTY OWNER WILL NOT RECEIVE JUST COMPENSATION FOR THE LAND TAKEN. 
THE POSSIBLE ADVERSE EFFECT ON THE TAX REVENUES OF OKLAHOMA AS A RESULT
OF THE EXERCISE BY THE FEDERAL GOVERNMENT OF ITS POWER OF EMINENT
DOMAIN IS NO BARRIER TO THE EXERCISE OF THAT POWER.  "WHENEVER THE
CONSTITUTIONAL POWERS OF THE FEDERAL GOVERNMENT AND THOSE OF THE STATE
COME INTO CONFLICT, THE LATTER MUST YIELD."  FLORIDA V. MELLON, 273
U.S. 12, 17.  NOR CAN A STATE CALL A HALT TO THE EXERCISE OF THE
EMINENT DOMAIN POWER OF THE FEDERAL GOVERNMENT BECAUSE THE SUBSEQUENT
FLOODING OF THE LAND TAKEN WILL OBLITERATE ITS BOUNDARY.  AND THE
SUGGESTION THAT THIS PROJECT INTERFERES WITH THE STATE'S OWN PROGRAM
FOR WATER DEVELOPMENT AND CONSERVATION IS LIKEWISE OF NO AVAIL.  THAT
PROGRAM MUST BOW BEFORE THE "SUPERIOR POWER" OF CONGRESS.  UNITED
STATES V. RIO GRANDE DAM & IRRIGATION CO., SUPRA, P. 703; NEW JERSEY V.
SARGENT, 269 U.S. 328, 337; ARIZONA V. CALIFORNIA, 298 U.S. 558, 569;
UNITED STATES V. APPALACHIAN POWER CO., SUPRA.  AFFIRMED. 

FN1  THE ACT PROVIDES IN PART: 

"SEC. 4.  THAT THE FOLLOWING WORKS OF IMPROVEMENT FOR THE BENEFIT OF
NAVIGATION AND THE CONTROL OF DESTRUCTIVE FLOODWATERS AND OTHER
PURPOSES ARE HEREBY ADOPTED AND AUTHORIZED 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:  PROVIDED, THAT PENSTOCKS OR OTHER SIMILAR
FACILITIES ADAPTED TO POSSIBLE FUTURE USE IN THE DEVELOPMENT OF
HYDROELECTRIC POWER SHALL BE INSTALLED IN ANY DAM HEREIN AUTHORIZED
WHEN APPROVED BY THE SECRETARY OF WAR UPON THE RECOMMENDATION OF THE
CHIEF OF ENGINEERS AND OF THE FEDERAL POWER COMMISSION. 

     .         .         .         .         . 

"THE DENISON RESERVOIR ON RED RIVER IN TEXAS AND OKLAHOMA FOR FLOOD
CONTROL AND OTHER PURPOSES AS DESCRIBED IN HOUSE DOCUMENT NUMBERED 541,
SEVENTY-FIFTH CONGRESS, THIRD SESSION, WITH SUCH MODIFICATIONS THEREOF
AS IN THE DISCRETION OF THE SECRETARY OF WAR AND THE CHIEF OF ENGINEERS
MAY BE ADVISABLE, IS ADOPTED AND AUTHORIZED AT AN ESTIMATED COST OF
$54,000,000.  ... 

   .         .         .         .         . 

"THE GOVERNMENT OF THE UNITED STATES ACKNOWLEDGES THE RIGHT OF THE
STATES OF OKLAHOMA AND TEXAS TO CONTINUE TO EXERCISE ALL EXISTING
PROPRIETARY OR OTHER RIGHTS OF SUPERVISION OF AND JURISDICTION OVER THE
WATERS OF ALL TRIBUTARIES OF RED RIVER WITHIN THEIR BORDERS ABOVE
DENISON DAM SITE AND ABOVE SAID DAM, IF AND WHEN CONSTRUCTED, IN THE
SAME MANNER AND TO THE SAME EXTENT AS IS NOW OR MAY HEREAFTER BE
PROVIDED BY THE LAWS OF SAID STATES, RESPECTIVELY, AND ALL OF SAID LAWS
AS THEY NOW EXIST OR AS SAME MAY BE HEREAFTER AMENDED OR ENACTED AND
ALL RIGHTS THEREUNDER, INCLUDING THE RIGHTS TO IMPOUND OR AUTHORIZE THE
RETARDATION OR IMPOUNDING THEREOF FOR FLOOD CONTROL ABOVE THE SAID
DENISON DAM AND TO DIVERT THE SAME FOR MUNICIPAL PURPOSES, DOMESTIC
USES, AND FOR IRRIGATION, POWER GENERATION, AND OTHER BENEFICIAL USES,
SHALL BE AND REMAIN UNAFFECTED BY OR AS A RESULT HEREOF.  ALL SUCH
RIGHTS ARE HEREBY SAVED AND RESERVED FOR AND TO THE SAID STATES AND THE
PEOPLE AND THE MUNICIPALITIES THEREOF, AND THE IMPOUNDING OF ANY SUCH
WATERS FOR ANY AND ALL BENEFICIAL USES BY SAID STATES OR UNDER THEIR
AUTHORITY MAY BE AS FREELY DONE AFTER THE PASSAGE HEREOF AS THE SAME
MAY NOW BE DONE." 

IN OCTOBER, 1939, THE STATE OF OKLAHOMA FILED WITH THIS COURT A
MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT SEEKING AN INJUNCTION
AGAINST THE THEN SECRETARY OF WAR FROM PROCEEDING WITH THE CONSTRUCTION
OF THIS PROJECT.  THE MOTION FOR LEAVE TO FILE WAS DENIED BY AN EQUALLY
DIVIDED COURT.  OKLAHOMA V. WOODRING, 309 U.S. 623. 

FN2  APPELLEES ARE GUY F. ATKINSON CO., ALLEGED TO BE CONSTRUCTING
THE DAM UNDER A CONTRACT WITH THE WAR DEPARTMENT; AND CLEON A. SUMMERS
AND CURTIS P. HARRIS, WHO AS ATTORNEYS FOR THE GOVERNMENT ARE ALLEGED
TO HAVE INSTITUTED NUMEROUS CONDEMNATION SUITS FOR THE PURPOSES OF THE
PROPOSED RESERVOIR. 

FN3  IN THIS CONNECTION IT IS ALLEGED THAT UNDER THE STATUTORY SCHEME
75% OF THE HEIGHT OF THE DAM IS FOR POWER AND 25% FOR FLOOD CONTROL,
AND 37% OF THE ACRE FEET INUNDATED IS FOR WATER STORAGE FOR POWER AND
63% FOR FLOOD CONTROL, WHILE UNDER THE MODIFIED PLAN 82% OF THE HEIGHT
OF THE DAM IS FOR POWER AND 18% FOR FLOOD CONTROL, AND 53% OF THE ACRE
FEET INUNDATED IS FOR WATER STORAGE FOR POWER AND 47% FOR FLOOD
CONTROL. 

THE ORIGINAL PLAN OR STATUTORY SCHEME AS SET FORTH IN THE REPORT (H.
DOC. NO. 541, 75TH CONG., 3D SESS., P. 45) WAS DESCRIBED THEREIN AS
FOLLOWS: 

"THE PROJECT PLAN AS DESIGNED FOR THE COMBINED FLOOD CONTROL AND POWER
DEVELOPMENT SCHEME WITH TOP OF DAM AT ELEVATION 695 IS BASED UPON THE
FOLLOWING ALLOCATION OF RESERVOIR CAPACITY, THE VOLUMES BEING GIVEN IN
ROUND FIGURES. 

"(A)  DEAD STORAGE.  - STREAM BED ELEVATION 505 TO LOWER POWER POOL
ELEVATION 595, 1,400,000 ACRE FEET. 

"(B)  POWER POOL STORAGE.  - ELEVATION 595 TO ELEVATION 620,
2,000,000 ACRE-FEET. 

"(C)  FLOOD POOL STORAGE.  - ELEVATION 620 TO CREST OF SPILLWAY,
ELEVATION 660, 5,900,000 ACRE FEET. 

"(D)  DETENTION FLOOD STORAGE.  - STORAGE ABOVE THE SPILLWAY CREST,
ELEVATION 660, TO THE MAXIMUM RESERVOIR SURFACE REACHED BY THE
IMPOUNDED FLOODWATERS, WHICH IN THE CASE OF THE PROJECT FLOOD WOULD BE
6,400,000 ACRE-FEET FOR ELEVATION 687." 

UNDER SEC. 4 OF THE ACT OF JUNE 28, 1938, THE SECRETARY OF WAR AND
THE CHIEF OF ENGINEERS WERE AUTHORIZED TO MODIFY THE PROJECT AS IT WAS
DESCRIBED IN THE REPORT.  A MODIFICATION HAS BEEN MADE.  DEFINITE
PROJECT FOR DENISON DAM & RESERVOIR, RED RIVER, CORPS OF ENGINEERS,
U.S. ARMY (NOT PRINTED).  THOSE CHANGES WERE REPORTED TO A COMMITTEE OF
CONGRESS.  HEARINGS, S. SUBCOM.  ON APPROPRIATIONS, H.R. 6260, 76TH
CONG., 1ST SESS., PP. 25-26, 201.  UNDER THE DEFINITE PROJECT (PP. 10
14) THE FOLLOWING ALLOCATION OF RESERVOIR CAPACITY HAS BEEN MADE: 

(A)  DEAD STORAGE.  STREAM BED ELEVATION 505 TO LOWER POWER POOL
ELEVATION 587, 1,020,000 ACRE FEET. 

(B)  POWER POOL STORAGE.  ELEVATION 587 TO ELEVATION 617, 2,060,000
ACRE FEET. 

(C)  FLOOD POOL STORAGE.  ELEVATION 617 TO SPILLWAY CREST, ELEVATION
640, 2,745,000 ACRE FEET. 

(D)  DETENTION FLOOD STORAGE.  ELEVATION SPILLWAY CREST, 640, TO
CREST OF DAM, 670.  APPELLEES ON THE BASIS OF DEFINITE PROJECT,
APPENDIX A, PLATE A-23, PLACE THE ACRE FEET AT APPROXIMATELY 3,300,000
FOR ELEVATION 662 - THE CONDITION WHICH, IT IS ASSERTED, WILL EXIST IN
CASE OF THE MAXIMUM PROBABLE FLOOD. 

FN4  THAT SECTION PROVIDES:  "THE PROJECT FOR THE DENISON RESERVOIR
ON RED RIVER IN TEXAS AND OKLAHOMA, AUTHORIZED BY THE FLOOD CONTROL ACT
APPROVED JUNE 28, 1938, IS HEREBY DECLARED TO BE FOR THE PURPOSE OF
IMPROVING NAVIGATION, REGULATING THE FLOW OF THE RED RIVER, CONTROLLING
FLOODS, AND FOR OTHER BENEFICIAL USES." 

FN5  FOR A SUMMARY OF VARIOUS FLOOD-CONTROL PROJECTS ON THE LOWER
MISSISSIPPI, SEE REPORT OF THE MISSISSIPPI VALLEY COMMITTEE OF THE
PUBLIC WORKS ADMINISTRATION (1934), PP. 207 ET SEQ.; ELLIOTT, THE
IMPROVEMENT OF THE LOWER MISSISSIPPI RIVER FOR FLOOD CONTROL &
NAVIGATION (1932), PP. 1-21; FRANK, THE DEVELOPMENT OF THE FEDERAL
PROGRAM OF FLOOD CONTROL ON THE MISSISSIPPI RIVER (1930); BEMAN, FLOOD
CONTROL (1928). 

AND SEE H. DOC. NO. 541, 75TH CONG., 3D SESS., P. 3; FLY, THE ROLE OF
THE FEDERAL GOVERNMENT IN THE CONSERVATION AND UTILIZATION OF WATER
RESOURCES, 86 U. PA. L. REV. 274; KERWIN, FEDERAL WATER-POWER
LEGISLATION (1926). 

FOR BIBLIOGRAPHY, SEE H. COM. DOC. NO. 4, 70TH CONG., 1ST SESS. 

FN6  SEE ELLIOTT, OP. CIT., PP. 1-21; S. EX. DOC. NO. 20, 32D CONG.,
1ST SESS.; S. EX. DOC. NO. 8, 40TH CONG., 1ST SESS.; H. EX. DOC. NO.
127, 43 CONG., 2D SESS.  FOR THE HISTORY AND WORK OF THE MISSISSIPPI
RIVER COMMISSION, SEE H. REP. NO. 1072, 70TH CONG., 1ST SESS., PP. 334
354. 

FN7  SEE, FOR EXAMPLE, THE SO-CALLED FIRST FLOOD CONTROL ACT OF MARCH
1, 1917, C. 144, 39 STAT. 948. 

FN8  H. REP. NO. 1072, 70TH CONG., 1ST SESS.; H. DOC. NO. 90, 70TH
CONG., 1ST SESS.; HEARINGS, H. COMM. ON FLOOD CONTROL, 70TH CONG., 1ST
SESS., ON THE MISSISSIPPI RIVER AND ITS TRIBUTARIES; HEARINGS, S. COMM.
ON COMMERCE, 70TH CONG., 1ST SESS., ON FLOOD CONTROL OF THE MISSISSIPPI
RIVER.    AND SEE HOOVER, THE IMPROVEMENT OF OUR MID-WEST WATERWAYS,
135 ANNALS, NO. 224, P. 15. 

FN9  SEE HEARINGS, S. SUBCOM.  ON COMMERCE, 74TH CONG., 2D SESS., ON
S. 3531; HEARINGS, H. COMM. ON FLOOD CONTROL, 74TH CONG., 2D SESS., ON
S. 3531; HEARINGS, S. COMM. ON COMMERCE, EX. SESS. 74TH CONG., 2D
SESS., ON H.R. 8455; S. REP. NO. 1963, 74TH CONG., 2D SESS.; H. REP.
NO. 2918, 74TH CONG., 2D SESS.; H. REP. NO. 2583, 74TH CONG., 2D SESS.;
S. REP. NO. 1662, 74TH CONG., 2D SESS. 

FN10  THE RESOLUTION IS SET FORTH IN COM. DOC. NO. 1, H. COMM. ON
FLOOD CONTROL, 75TH CONG., 1ST SESS., P. 1.    FN11  COM. DOC. NO. 1,
OP. CIT., P. 11. 

FN12  COM. DOC. NO. 1, OP. CIT., PP. 7-8. 

FN13  COM. DOC. NO. 1, OP. CIT., P. 8.  THE CHIEF OF ENGINEERS,
UNITED STATES ARMY, ON FEBRUARY 12, 1935, HAD SUBMITTED A SPECIAL
REPORT TO THE HOUSE COMMITTEE ON FLOOD CONTROL, ENTITLED FLOOD-CONTROL
WORKS IN THE ALLUVIAL VALLEY OF THE MISSISSIPPI RIVER, COM. DOC. NO. 1,
74TH CONG., 1ST SESS.  AND SEE THE MESSAGE BY PRESIDENT ROOSEVELT TO
CONGRESS JUNE 3, 1937, 81 CONG. REC., PT. 5, 75TH CONG., 1ST SESS., P.
5280. 

FN14  HEARINGS, HOUSE COMM. ON FLOOD CONTROL ON H.R. 10618, 75TH
CONG., 3D SESS., PP. 605-686. 

FN15  SEC. 4 OF THAT ACT IS SET FORTH IN PART IN NOTE 1, SUPRA. 

FN16  ACT OF JUNE 28, 1939, C. 246, 53 STAT. 856; ACT OF JUNE 24,
1940, C. 415, 54 STAT. 505.  SEE H. REP. NO. 604, 76TH CONG., 1ST
SESS., P. 4; HEARINGS, S. SUBCOM.  ON APPROPRIATIONS ON H.R. 6260, 76TH
CONG., 1ST SESS., P. 13. 

FN17  SEE NOTE 4, SUPRA. 

FN18  REPORT, P. 17. 

FN19  AS RESPECTS THE JANUARY, 1937 OHIO RIVER FLOOD, THE CHIEF OF
ENGINEERS REPORTED IN APRIL, 1937:  "THE RIVER ROSE TO A HEIGHT OF 80
FEET ABOVE LOW WATER AT CINCINNATI, BEING NEARLY 9 FEET ABOVE ANY FLOOD
HERETOFORE OF RECORD.  THE RESULTING DAMAGE WAS ENORMOUS.  PRACTICALLY
EVERY COMMUNITY ALONG THE ENTIRE RIVER SUFFERED HEAVY LOSS.  WATER,
ELECTRICITY, AND GAS SERVICES WERE DISCONTINUED IN MANY CITIES.  MORE
THAN 500,000 PERSONS WERE DRIVEN FROM THEIR HOMES AND SUFFERED GREAT
DISCOMFORT AND DISTRESS.  HIGHWAY AND RAILWAY COMMUNICATIONS WERE
SEVERED AND BUSINESS AND INDUSTRIAL ACTIVITIES WERE COMPLETELY
DISRUPTED FOR SEVERAL WEEKS.  RELIEF AGENCIES WERE TAXED TO THE UTMOST
TO PROVIDE FOR THE FLOOD REFUGEES.  ALTHOUGH THE DIRECT DAMAGES HAVE
NOT YET BEEN FULLY ASCERTAINED, THEY MAY CONSERVATIVELY BE ESTIMATED AT
MORE THAN $400,000,000.  THE WAR DEPARTMENT EXPENDED MORE THAN
$5,000,000 IN RELIEF WORK AND IN PROVIDING SUPPLIES AND MATERIALS FOR
THE FLOOD AREAS, AND APPROXIMATELY $5,000,000 FOR EMERGENCY WORK TO
PROTECT EXISTING STRUCTURES.  THE WORKS PROGRESS ADMINISTRATION
PROVIDED LABOR AND SERVICES.  THE RELIEF ACTIVITIES OF THE AMERICAN RED
CROSS AGGREGATED MORE THAN $7,500,000.  THE EXPENDITURES OF THE FEDERAL
GOVERNMENT AND OF THE RED CROSS FOR REHABILITATION WILL ADD GREATLY TO
THE EXPENDITURES ALREADY MADE."  COM. DOC. NO. 1, H. COMM. ON FLOOD
CONTROL, 75TH CONG., 1ST SESS., P. 3.  AND SEE H. DOC. NO. 90, 70TH
CONG., 1ST SESS., P. 2; H. REP. NO. 1072, 70TH CONG., 1ST SESS.; H.
DOC. NO. 455, 76TH CONG., 1ST SESS.; H. DOC. NO. 91, 76TH CONG., 1ST
SESS.; H. REP. NO. 616, 64TH CONG., 1ST SESS.; THOMAS, HUNGRY WATERS
(1937). 

FN20  SEE H. DOC. NO. 378, 74TH CONG., 2D SESS., PP. 372 ET SEQ.;
REPORT, PP. 29, 70-71, 84-87, 88, 94. 

FN21 THE FLOOD PROTECTION AFFORDED BY DENISON RESERVOIR WILL ACCRUE
TO FOUR STATES:  TWO-FIFTHS TO LOUISIANA, AND ONE-FIFTH EACH TO
OKLAHOMA, TEXAS, AND ARKANSAS.  REPORT, P. 11.  AND SEE REPORT OF THE
MISSISSIPPI VALLEY COMMITTEE OF THE PUBLIC WORKS ADMINISTRATION
(1934). 

FN22  NATIONAL RESOURCES BOARD, REPORT 1934, PP. 26-30, 325-329;
NATIONAL RESOURCES COMMITTEE, DRAINAGE BASIN PROBLEMS AND PROGRAMS
(1936), PP. 73-77; H. DOC. NO. 306, OHIO RIVER, 74TH CONG., 1ST SESS.;
S. REP. NO. 891, 64TH CONG., 2D SESS. 

ON FOREST AND FLOOD RELATIONSHIPS IN THE MISSISSIPPI RIVER WATERSHED,
SEE H. DOC. NO. 573, 70TH CONG., 2D SESS., PP. 57 ET SEQ. S. DOC. NO.
12, 73D CONG., 1ST SESS., PP. 299 ET SEQ.; PP. 1509 ET SEQ. 

FN23  H. REP. NO. 1072, 70TH CONG., 1ST SESS., PP. 5-16.  AND SEE
UNITED STATES V. SPONENBARGER, 308 U.S. 256; H. DOC. NO. 90, 70TH
CONG., 1ST SESS.; S. DOC. NO. 1094, 62D CONG., 3D SESS.; S. REP. NO.
1662, 74TH CONG., 2D SESS.; H. REP. NO. 2583, 74TH CONG., 2D SESS. 

FN24  S. EX. DOC. NO. 20, 32D CONG., 1ST SESS., PP. 13, 99, ET SEQ.
AND SEE THE REVIEW OF THE IDEAS FOR RESERVOIRS CONTAINED IN FINAL
REPORT, NATIONAL WATERWAYS COMMISSION, S. DOC. NO. 469, 62D CONG., 2D
SESS., APP. II; NATIONAL WATERWAYS COMM., DOC. NO. 14, JAN. 1910; H.
DOC. NO. 1289, 62D CONG., 3D SESS. 

FN25  S. EX. DOC. NO. 20, 32D CONG., 1ST SESS., P. 102. 

FN26  SEE H. DOC. NO. 259, 74TH CONG., 1ST SESS.; NAT. RES. COM.,
DRAINAGE BASIN PROBLEMS AND PROGRAMS (1938); H. DOC. NO. 798, 71ST
CONG., 3D SESS., VOL. 2; H. REP. NO. 1072, 70TH CONG., 1ST SESS., PP.
101-109; H. DOC. NO. 395, 73D CONG., 2D SESS., PT. 5; H. REP. NO. 1100,
70TH CONG., 1ST SESS., P. 14; H. REP. NO. 1120, 75TH CONG., 1ST SESS. 

FN27  REPORT, PP. 2-3; AND SEE P. 65. 

FN28  REPORT, P. 67.  AND SEE P. 72. 

FN29  ID., P. 67. 

FN30  ID., P. 68. 

FN31  REPORT, PP. 79-80.  THE INITIAL PROJECT FOR IMPROVEMENT OF
NAVIGATION ON THE RED RIVER WAS AUTHORIZED IN 1828.  FEDERAL
EXPENDITURES TO JUNE 30, 1936, EXCEEDED $4,000,000.  ID., P. 3. 

FN32  AS TO THE INTANGIBLE BENEFITS FROM FLOOD CONTROL SEE H. DOC.
NO. 455, 76TH CONG., 1ST SESS., ENTITLED VALUE OF FLOOD HEIGHT
REDUCTION FROM TENNESSEE VALLEY AUTHORITY RESERVOIRS TO THE ALLUVIAL
VALLEY OF THE LOWER MISSISSIPPI RIVER; H. DOC. NO. 91, 76TH CONG., 1ST
SESS., PP. 22 ET SEQ., ENTITLED THE CHATTANOOGA FLOOD CONTROL PROBLEM;
COOKE, ON THE RELATIONS OF ENGINEERING SCIENCE TO FLOOD CONTROL, 84
SCIENCE (SUPP.) 40. 

FN33  AS RESPECTS BENEFITS FROM FLOOD HEIGHT REDUCTION TO RAILROADS
AND HIGHWAYS, SEE H. DOC. NO. 455, 76TH CONG., 1ST SESS., PP. 21-27;
REPORT, APP. H. (NOT PRINTED) SECS. 8-10, 16; H. DOC. NO. 378, 74TH
CONG., 2D SESS., PP. 35-36, 264-265, 372-373; H. REP. NO. 1072, 70TH
CONG., 1ST SESS., PP. 224-228, 246-248; HEARINGS, S. COMM. ON COMMERCE,
EX. SESS., 74TH CONG., 2D SESS., ON H.R. 8455, PP. 71-72, 307.  FOR A
FULL ACCOUNT OF FLOOD DAMAGE TO RAILROADS SEE:  BULL., AMER.  RY. ENG.
ASSN. (1928) VOL. 29, NO. 303, PT. 2. 

FN34  REPORT, P. 74.  CF. H. DOC. NO. 798, 71ST CONG., 3D SESS., VOL.
2, ANNEX 18, PP. 1496-1498. 

FN35  REPORT, P. 86. 

FN36  ID., P. 86. 

FN37  DEFINITE PROJECT, APP. D., P. 7.  AS RESPECTS THE RELATION OF
THE MISSISSIPPI RIVER AS A COMMERCE CARRIER TO FLOOD CONTROL, SEE H.
REP. NO. 1072, 70TH CONG., 1ST SESS., P. 359. 

FN38  H. DOC. NO. 259, 74TH CONG., 1ST SESS. 

FN39  ON FUNCTIONAL ASPECTS OF MULTIPLE-PURPOSE DAMS, SEE NOTE 45,
INFRA. 

FN40  P. 42.  IN THIS CONNECTION, IT SHOULD BE NOTED THAT THE
DISTRICT ENGINEER RECOMMENDED THAT A DAM FOR FLOOD CONTROL ONLY WOULD
BE AT ELEVATION 675, WHILE THE MULTIPLE-PURPOSE DAM WOULD BE AT
ELEVATION 695.  REPORT, P. 42.  THE DIVISION ENGINEER, HOWEVER, STATED
THAT A RESTUDY INDICATED "THAT IN THE CASE OF THE FLOOD-CONTROL-ONLY
PROJECT GREATER ECONOMY WOULD RESULT FROM NARROWING THE SPILLWAY TO
1500 FEET AND RAISING THE CREST OF THE DAM TO ELEVATION 681 FEET." 
ID., P. 80. 

FN41  P. 94. 

FN42  REPORT, P. 67. 

FN43  ID., P. 94. 

FN44  AS STATED IN REPORT OF THE MISSISSIPPI VALLEY COMMITTEE OF THE
PUBLIC WORKS ADMINISTRATION (1934), P. 23: 

"NAVIGATION IS PARTICULARLY BENEFITED BY REDUCTION OF FLOOD CRESTS,
AND ALL OF THE POSSIBILITIES OF WATER USE ARE IMPROVED BY INCREASES IN
FLOW AT EXTREME LOW STAGES.  UNDER CERTAIN FAVORABLE CIRCUMSTANCES IT
MAY BE POSSIBLE TO RELEASE WATER FROM FLOOD-CONTROL RESERVOIRS TO
SATISFY REQUIREMENTS FOR HYDROELECTRIC POWER DEVELOPMENT AT THE DAM, OR
TO REGULATE THE FLOW DOWN STREAM TO THE ADVANTAGE OF A VARIETY OF WATER
USES.  IN SUCH CASES EQUITABLE DISTRIBUTION OF COSTS AMONG THE SEVERAL
PURPOSES SERVED MAY EVEN SUFFICIENTLY REDUCE THE COSTS CHARGEABLE TO
FLOOD PROTECTION TO WARRANT THE CONSTRUCTION OF FLOOD-CONTROL
RESERVOIRS WHICH COULD NOT BE JUSTIFIED FOR FLOOD PROTECTION ALONE." 

AND SEE FLY, THE ROLE OF THE FEDERAL G3VERNMENT IN THE CONSERVATION
AND UTILIZATION OF WATER RESOURCES, 86 U. PA. L. REV. 274, 286 ET SEQ.;
MESSAGE BY PRESIDENT TAFT, AUGUST 24, 1912, 48 CONG. REC., PT. 11, 62D
CONG., 2D SESS., P. 11796, VETOING A BILL AUTHORIZING THE BUILDING OF A
DAM ACROSS COOSA RIVER, ALABAMA, BY A PRIVATE COMPANY; S. DOC. NO. 246,
64TH CONG., 1ST SESS. 

FN45  ON THE RELATIONSHIPS BETWEEN THE MULTIPLE PURPOSES OF WATER
CONTROL SEE REPORT OF THE MISSISSIPPI VALLEY COMMITTEE OF THE PUBLIC
WORKS ADMINISTRATION (1934), PP. 20-24; ALVORD & BURDICK, RELIEF FROM
FLOODS (1918), PP. 28-36; CLEMENS, THE RESERVOIR AS A FLOOD-CONTROL
STRUCTURE (1935), 100 AM. SOC. OF CIV. ENGS.  879; H. DOC. NO. 1792,
64TH CONG., 2D SESS., P. 5. 

AND SEE NAT. RES. COM., WATER PLANNING (1938); NAT. RES. COM., ENERGY
RESOURCES & NATIONAL POLICY (1939), P. 306. 

FN46  CF. HAMILTON, COST AS A STANDARD FOR PRICE, 4 LAW & CONT. 
PROBLEMS (1937), 321, 325. 

FN47  REPORT, PP. 60, 64. 

FN48  REPORT, P. 82. 

FN49  DEFINITE PROJECT, P. 11.  THE DISTRICT ENGINEER STATED IN THE
REPORT, P. 32:  "A HYDROELECTRIC DEVELOPMENT ALONE AT THE DENISON
RESERVOIR SITE COULD NOT ABSORB ALL OF THE RESERVOIR COSTS AND PRODUCE
POWER IN COMPETITION WITH THAT FROM FUEL-CONSUMING PLANTS.  HOWEVER,
THE COMBINATION OF FLOOD CONTROL AND POWER DEVELOPMENT IN THE DENISON
RESERVOIR PRESENTS CERTAIN PROMISE OF FAVORABLE ECONOMIC FEASIBILITY. 
ALTHOUGH THIS RESERVOIR WOULD APPROACH ECONOMIC JUSTIFICATION IF
CONSTRUCTED EXCLUSIVELY FOR FLOOD CONTROL, THE INCOME FROM POWER
DEVELOPED IN CONJUNCTION WITH FLOOD CONTROL WOULD IN PART ABSORB THIS
DEFICIENCY SINCE THE VALUE OF THE AVAILABLE POWER WOULD BE SOMEWHAT IN
EXCESS OF ITS COST.  IT IS APPARENT THAT THE RELATIVE AMOUNTS OF ANNUAL
RETURN, FLOOD BENEFITS, OR POWER REVENUES, FROM EACH OF THE TWO
FUNCTIONS OF A DUAL-PURPOSE DEVELOPMENT ARE QUANTITIVELY DEPENDENT UPON
THE MANNER IN WHICH STORAGE POTENTIALITIES OF THE SITE ARE APPORTIONED
BETWEEN THESE TWO FUNCTIONS.  IT IS BELIEVED, HOWEVER, THAT AN
INCREASED ALLOCATION OF SUCH STORAGE TO FLOOD CONTROL AT THE EXPENSE OF
POWER WOULD NOT MATERIALLY ALTER THE ABOVE CONCLUSION EXCEPT PERHAPS TO
SHOW ECONOMIC DEFICIENCIES FOR BOTH PHASES OF THE DEVELOPMENT." 

FN50  REPORT, P. 82. 

FN51  ID., PP. 45-46. 

FN52  DEFINITE PROJECT, PP. 10-11, APP. F., P. 5.  AND SEE HEARINGS,
H. COMM. ON FLOOD CONTROL, 75TH CONG., 3D SESS., P. 641. 

FN53  DEFINITE PROJECT, P. 26. 

FN54  ID., APP. F., P. 7; REPORT, P. 67. 

FN55  DEFINITE PROJECT, PP. 26, 12. 

FN56  IT WAS NOTED IN NAT. RES. COM., ENERGY RESOURCES & NATIONAL
POLICY (1939), P. 276, THAT: 

"THE MOST OBVIOUS AND MOST DISCUSSED CONFLICT OF PURPOSE IN USE OF
WATER RESOURCES RELATES TO FLOOD CONTROL AND POWER.  SINCE FLOOD
CONTROL IS OF GREAT URGENCY IN SO MANY BASINS, ONE MAY APPEAR TO
DEMOLISH ALL CONCEPT OF WISDOM IN PRODUCTION OF WATER POWER BY THE PAT
OBSERVATION THAT AN EMPTY RESERVOIR WILL NOT RUN TURBINES AND A FULL
RESERVOIR WILL NOT CATCH FLOODS.  WITH RESPECT TO A PARTICULAR
RESERVOIR, THE OBSERVATION IS IN POINT, BUT IT IS NOT THEREBY
CONCLUSIVE.  THAT ONE RESERVOIR MIGHT BE RESERVED FOR FLOOD CONTROL AND
ANOTHER ON THE SAME STREAM USED FOR POWER PROBABLY STUMPS NO ONE. 
NEITHER SHOULD IT STUMP ANYONE THAT PART OF A SINGLE RESERVOIR BE
RESERVED FOR FLOOD AND PART BE USED FOR POWER.  INDEED, IT WOULD OFTEN
COST LESS TO PROVIDE FLOOD-CONTROL SPACE IN THE SAME RESERVOIR WITH
POWER SPACE THAN TO BUILD A SEPARATE RESERVOIR.  AND IT SHOULD NOT BE
FORGOTTEN THAT STORAGE TO PREVENT THE ORDINARILY LOW FLOW OF DRY
SEASONS IS ITSELF FLOOD PREVENTION IN THAT BETTER SUSTAINED ORDINARY
FLOW TENDS TO MAINTAIN CLEAR CHANNELS.  IF THE CONFLICT REALLY WERE
IRRECONCILABLE, WE SHOULD BE FORCED TO ABOLISH PRIVATE WATER-POWER
PLANTS ON EVERY STREAM SYSTEM REQUIRING FLOOD CONTROL.  IF PRIVATE
POWER AND PUBLIC FLOOD CONTROL MAY HARMONIZE, ONE MAY BELIEVE THE SAME
OF PUBLIC POWER AND PUBLIC FLOOD CONTROL." 

AND SEE THE NORRIS PROJECT (1940), CH. 8. 

FN57  REPORT, P. 88. 

FN58  THE GOVERNMENT CONCEDES THAT THERE WILL BE NO LOSS OF POLITICAL
JURISDICTION OVER THE LANDS TAKEN EXCEPT WITH THE CONSENT OF THE
STATE.  ART. 1, SEC. 8, CLAUSE 17 OF THE CONSTITUTION. 
..END :















UNITED STATES V. ALABAMA, 313 U.S. 274 


NO. 12, ORIGINAL.  ARGUED APRIL 28, 1941.  - DECIDED MAY 26, 1941. 


1.  THE LAW OF ALABAMA FIXES OCTOBER 1ST OF EACH YEAR AS THE TAX DAY
AS OF WHICH REAL PROPERTY SHALL BE ASSESSED FOR THE TAXES OF THE
SUCCEEDING TAX YEAR, AND PROVIDES A STATUTORY PROCESS WHEREBY, IN DUE
COURSE, VALUATIONS OF PROPERTIES AND AMOUNTS OF TAX ARE DETERMINED. 
TAXES ARE MADE LIENS ON THE PROPERTIES TAXED, RELATING BACK TO THE TAX
DAY AND CONTINUING UNTIL THE TAXES HAVE BEEN PAID.  THE LIEN IS
EFFECTIVE NOT ONLY AGAINST THE OWNER ON THE TAX DAY BUT ALSO AGAINST
SUBSEQUENT PURCHASERS.  HELD: 

(1)  THAT THE TAX LIEN IS NOT OBJECTIONABLE UNDER THE FEDERAL
CONSTITUTION AS APPLIED TO A PURCHASER WHO BOUGHT ON OR AFTER THE TAX
DAY AND BEFORE THE AMOUNT OF THE TAX HAD BEEN FIXED BY LEVY AND
ASSESSMENT.  P. 279. 

(2)  THE FACT THAT THE PURCHASER, IN SUCH CIRCUMSTANCES, WAS THE
UNITED STATES DID NOT INVALIDATE THE LIEN.  P. 281. 

(3)  SUCH A LIEN CAN NOT BE ENFORCED AGAINST THE UNITED STATES
WITHOUT ITS CONSENT.  P. 281. 

2.  A PROCEEDING AGAINST PROPERTY IN WHICH THE UNITED STATES HAS AN
INTEREST IS A SUIT AGAINST THE UNITED STATES.  P. 282. 

UNITED STATES V. ALABAMA. 

THIS WAS A SUIT BROUGHT IN THIS COURT BY THE UNITED STATES AGAINST
THE STATE OF ALABAMA IN WHICH THE PLAINTIFF SOUGHT TO HAVE REMOVED, AS
CLOUDS ON ITS TITLE, TAX LIENS IMPOSED UNDER THE LAW OF THE STATE UPON
LANDS PURCHASED BY THE PLAINTIFF. 

THE COURT DECREES THAT TAX SALES AND CERTIFICATES OF PURCHASE,
RESULTING FROM PROCEEDINGS IN AN ALABAMA COUNTY COURT FOR ENFORCEMENT
OF THE LIENS, SHALL BE SET ASIDE, BUT IN OTHER RESPECTS THE BILL IS
DISMISSED. 

THE LANDS WERE ACQUIRED BEFORE THE TIME WHEN, BY COMPLETION OF LEVY
AND ASSESSMENT, THE AMOUNTS OF STATE TAXES HAD BEEN ASCERTAINED.  THEY
ARE THEREFORE NOT SUBJECT TO LIENS FOR THE TAXES. 

TWO THINGS ARE REQUISITE FOR THE ASCERTAINMENT OF AN AD VALOREM TAX:
THE TAX RATE MUST BE FIXED AND THE PROPERTY MUST BE VALUED.  ON OCTOBER
1, 1936, ONLY THE STATE TAX RATE WAS FIXED.  THE LANDS HAD NOT BEEN
VALUED AND THE COUNTY AND SCHOOL TAX RATES HAD NOT BEEN FIXED.  AND
WHEN THE THREE TRACTS WERE ACQUIRED BY THE UNITED STATES, THE TAXES
WERE STILL UNASCERTAINED.  IF THE ASSESSMENTS HAD NOT BEEN THEREAFTER
DETERMINED AND THE ADDITIONAL LEVIES MADE, THE TAXES WOULD NEVER HAVE
BEEN IMPOSED.  SEE BANNON V. BURNES, 39 F. 892, 898; PORTLAND V.
MULTNOMAH COUNTY, 135 ORE.  469, 473. 

THE ASCERTAINMENT OF THE TAXES AFTER ACQUISITION OF THE LANDS BY THE
UNITED STATES, COULD NOT IMPOSE ANY LIABILITY UPON THE LANDS.  THE
STATE COULD STILL LEVY AND ASSESS FOR THE PURPOSE OF IMPOSING A
PERSONAL LIABILITY ON THE FORMER OWNERS.  BUT THE PROPERTY OF THE
UNITED STATES IS NOT SUBJECT TO STATE TAXATION.  VAN BROCKLIN V.
TENNESSEE, 117 U.S. 151, 179-180; CLALLAM COUNTY V. UNITED STATES, 263
U.S. 341, 345; LEE V. OSCEOLA IMP.  DIST., 268 U.S. 643, 645; MULLEN
BENEVOLENT CORP. V. UNITED STATES, 290 U.S. 89, 94-95. 

THE ALABAMA LIEN STATUTE DID NOT PER SE MAKE THE LANDS LIABLE FOR
TAXES.  IT NEITHER FIXES RATES OF TAXATION NOR ENUMERATES SUBJECTS OF
TAXATION.  IT DOES NOT IMPOSE TAXES BUT SECURES THEIR PAYMENT.  UNLESS
TAXES ARE IMPOSED, SEC. 372 ACCOMPLISHES NOTHING.  CF., HEINE V. LEVEE
COMMISSIONERS, 19 WALL.  655, 659.  IN RE OPINIONS OF THE JUSTICES, 234
ALA. 358.  THE DECLARATION THAT THE LIEN ATTACHES AS OF OCTOBER 1, WHEN
THE PROCEDURE OF IMPOSING THE TAX COMMENCES, DOES NOT DO AWAY WITH THE
NECESSITY OF COMPLETING THAT PROCEDURE.  NOR WILL IT CURE ANY DEFECT OF
PROCEDURE.  SEE GASTON V. RECONSTRUCTION FINANCE CORPORATION, 237 ALA.
111, 112; LEWIS V. BURCH, 215 ALA. 20, 21; LANEY V. PROCTOR, 236 ALA.
318, 320. 

THE STATUTORY DECLARATION OF A LIEN FOR TAXES IMPOSES NO LIABILITY
UPON PROPERTY CONVEYED TO THE UNITED STATES BEFORE, BY COMPLETION OF
LEVY AND ASSESSMENT, THE TAXES HAVE BEEN ASCERTAINED.  BANNON V.
BURNES, 39 F. 892, 897, 898; UNITED STATES V. PIERCE COUNTY, 193 F.
529, 532-533; TERRITORY V. PERRIN, 9 ARIZ. 316, 320; SEE, ALSO, UNITED
STATES V. CITY OF BUFFALO, 54 F.2D 471, 474; CERT. DEN.  285 U.S. 550;
UNITED STATES V. CERTAIN LANDS IN CITY OF ST. LOUIS, MO., 29 F.SUPP. 
92, 96; 3 COOLEY, TAXATION (4TH ED. 1924), SEC. 1232, N. 13, PP. 2454
2455; BERG, THE STATUS OF TAXES RELATIVE TO LAND ACQUIRED BY THE UNITED
STATES, 16 ORE.  L. REV. 340-356; 48 L.R.A. (N.S.)  708-712.  SEE ALSO,
NEW YORK V. MACLAY, 288 U.S. 290, 294. 

NOR DOES A DECLARATION OF LIEN LIKE THAT OF THE ALABAMA STATUTE
IMPOSE LIABILITY UPON PROPERTY WHEN, BEFORE ASCERTAINMENT OF TAXES, THE
POWER TO TAX IS LOST BY REASON OF ACQUISITION OF THE PROPERTY BY A
STATE OR ONE OF ITS POLITICAL SUBDIVISIONS, STATE V. SNOHOMISH COUNTY,
71 WASH. 320, 322-326; PORTLAND V. MULTNOMAH COUNTY, 135 ORE.  469,
473; CITY OF LAUREL V. WEEMS, 100 MISS.  335, 340-341, OR IS LOST
BECAUSE THE PROPERTY IS DISCONNECTED FROM THE TERRITORY OF THE TAXING
POWER, GILLMOR V. DALE, 27 UTAH 372, 377; STATE EX REL. HINSON V.
NICKERSON, 99 NEB. 517, 520, OR BECAUSE THE LEGISLATURE DIVESTS THE
TAXING BODY OF POWER TO TAX.  DENVER V. RESEARCH BUREAU, 101 COLO. 140,
144 ET SEQ. SEE, ALSO, UNITED STATES V. PIERCE COUNTY, 193 F. 529,
533. 

THE PROBATE COURT WAS WITHOUT JURISDICTION TO DECREE THAT THE LANDS
OF THE UNITED STATES BE SOLD TO PAY THE TAXES. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS SUIT TO QUIET ITS TITLE TO LAND IN
MACON COUNTY, ALABAMA.  THE COMPLAINT ALLEGES THAT THE STATE OF ALABAMA
IS ASSERTING LIENS AS ATTACHING TO THE LAND ON OCTOBER 1, 1936, FOR
STATE AND COUNTY TAXES FOR THE TAX YEAR 1937; AND FURTHER THAT THE
STATE CLAIMS AN INTEREST IN THE LAND BY REASON OF TAX SALES AND THE
ISSUE TO THE STATE OF CERTIFICATES OF PURCHASE.  THE GOVERNMENT ASKS A
DECREE DECLARING THE LIENS, TAX SALES AND CERTIFICATES OF PURCHASE TO
BE INVALID AND ENJOINING THE STATE FROM ASSERTING ITS CLAIMS.  THE CASE
WAS HEARD ON BILL AND ANSWER. 

THERE ARE THREE TRACTS INVOLVED, WHICH WERE CONVEYED BY THE OWNERS TO
THE UNITED STATES ON OCTOBER 1, 1936, DECEMBER 10, 1936, AND MARCH 10,
1937, RESPECTIVELY. 

THE APPLICABLE STATUTE OF ALABAMA  FN1  PROVIDES THAT "FROM AND AFTER
THE FIRST DAY OF OCTOBER OF EACH YEAR, WHEN PROPERTY BECOMES ASSESSABLE
THE STATE SHALL HAVE A LIEN UPON EACH AND EVERY PIECE OR PARCEL OF
PROPERTY OWNED BY ANY TAXPAYER FOR THE PAYMENT OF ALL TAXES WHICH MAY
BE ASSESSED AGAINST HIM  ...  WHICH LIEN SHALL CONTINUE UNTIL SUCH
TAXES ARE PAID."  THE COUNTY IS TO HAVE A LIKE LIEN FOR TAXES ASSESSED
BY IT.  THESE LIENS ARE MADE SUPERIOR TO ALL OTHER LIENS AND MAY BE
ENFORCED BY SALE AS PROVIDED IN THE ACT. 

UNDER THE STATUTE, THE PROCESS OF ASSESSMENT FOR THE TAX YEAR 1937
BEGAN ON OCTOBER 1, 1936.  THE GRANTORS IN THE ABOVE MENTIONED
CONVEYANCES, AS THE RESPECTIVE OWNERS ON THAT DATE, MADE THEIR RETURNS
AND IN DUE COURSE THE TAX ASSESSOR LISTED AND VALUED THE SEVERAL
TRACTS.  FN2  HIS VALUATIONS WERE CERTIFIED AS PROVIDED BY THE STATUTE
TO THE COUNTY BOARD OF REVIEW, WHICH BY VIRTUE OF ITS AUTHORITY TO FIX
VALUATIONS, MADE THE DEFINITIVE ASSESSMENTS.  FN3  IT APPEARS THAT THE
BOARD OF REVIEW MET ON MARCH 8, 1937, AND ADJOURNED ON MARCH 20, 1937. 
IT ALSO APPEARS THAT THE RATE FOR STATE TAXES HAD BEEN FIXED BY THE
STATUTE N4, AND THE RATE FOR COUNTY TAXES WAS SET ON FEBRUARY 8, 1937,
UNDER THE AUTHORITY GIVEN TO THE COURT OF COUNTY COMMISSIONER.  FN5
THE SCHOOL DISTRICT TAX WAS APPROVED BY THE ELECTORS OF THE SCHOOL
DISTRICT AT AN ELECTION HELD ON JUNE 14, 1937.  THE TAXES FOR THE YEAR
1937 BECAME PAYABLE ON OCTOBER 1, 1937, AND BECAME DELINQUENT ON
JANUARY 1, 1938.  FN6  PROCEEDINGS WERE THEN INSTITUTED IN THE COUNTY
COURT FOR THE SALE OF THE LANDS, AND UNDER ITS DECREES THE SALES TOOK
PLACE ON JUNE 12, 1939.  THE LANDS WERE SOLD TO THE STATE AND
CERTIFICATES OF PURCHASE WERE ISSUED ACCORDINGLY. 

FIRST.  THE GOVERNMENT, INVOKING THE PRINCIPLE THAT LANDS OWNED BY
THE UNITED STATES CANNOT BE TAXED BY A STATE (VAN BROCKLIN V.
TENNESSEE, 117 U.S. 151), CONTENDS THAT THE ASSERTED LIENS ARE WITHOUT
VALIDITY BECAUSE AT THE TIME THE TRACTS WERE ACQUIRED BY THE UNITED
STATES THE AMOUNT OF THE TAXES HAD NOT BEEN ASCERTAINED, AS THE VALUES
HAD NOT THEN BEEN ASSESSED AND THE RATES OF TAXATION HAD NOT BEEN
FIXED.  THEREFORE IT IS SAID THAT THE TAXES HAD NOT THEN BEEN IMPOSED. 
THE ARGUMENT IS THAT THE ALABAMA TAX STATUTE DOES NOT "IMPOSE TAXES"
BUT "SECURES THEIR PAYMENT" AND THAT UNLESS TAXES ARE IMPOSED THE
STATUTE HAS NO EFFECT.  THE LIEN, IT IS URGED, BECOMES "FIXED AND
FINAL" ONLY WHEN THE TAXES HAVE BEEN ASCERTAINED "BY COMPLETION OF LEVY
AND ASSESSMENT." 

THERE IS NO QUESTION HOWEVER, AS THE GOVERNMENT CONCEDES, THAT THE
STATE STATUTE PURPORTS TO IMPOSE A LIEN AS OF OCTOBER 1, 1936, FOR THE
TAXES WHICH BY THE PROCESS OF ASSESSMENT WERE TO BECOME PAYABLE FOR THE
TAX YEAR 1937.  OCTOBER FIRST IS FIXED AS THE TAX DAY, AND AS OF THAT
DAY OWNERS ARE TO MAKE THEIR RETURNS, VALUES ARE TO BE FIXED AND THE
TAXES LAID.  THERE IS NO QUESTION THAT THE STATE THUS UNDERTAKES TO
CREATE AN INCHOATE LIEN UPON THE LANDS AS OF THE TAX DAY, A LIEN WHICH
IS TO BE EFFECTIVE FOR THE AMOUNT OF THE TAXES FOR THE ENSUING YEAR AS
THESE ARE FIXED BY THE DEFINED STATUTORY METHOD.  THIS LIEN BY THE
STATE LAW IS MADE EFFECTIVE NOT ONLY AS AGAINST THE OWNERS ON THE TAX
DAY BUT ALSO AS AGAINST SUBSEQUENT MORTGAGEES AND PURCHASERS.  "IT
FOLLOWS THE LAND IN THE HANDS OF THE VENDEE, ALL PERSONS BEING
CHARGEABLE WITH A KNOWLEDGE OF ITS EXISTENCE."  DRIGGERS V. CASSADAY,
71 ALA. 529, 534.  SEE, ALSO, SWANN V. STATE, 77 ALA. 545; STATE V.
ALABAMA EDUCATIONAL FOUNDATION, 231 ALA. 11, 16; 163 SO. 527.  WE FIND
NOTHING IN THE FEDERAL CONSTITUTION WHICH INVALIDATES SUCH A STATUTORY
SCHEME.  SUBSEQUENT LIENORS AND PURCHASERS HAVE DUE NOTICE OF THE TAX
LIABILITY IMPOSED AS OF THE TAX DAY AND OF THE PROCESS OF ASSESSMENT,
AND THAT LIABILITY, WHEN ITS AMOUNT IS DEFINITELY ASCERTAINED, RELATES
BACK TO THE DAY SPECIFIED.  WE RECOGNIZED THE VALIDITY OF SUCH A
PROVISION IN NEW YORK V. MACLAY, 288 U.S. 290, 292, WHERE WE OBSERVED
THAT A TAX LIEN CREATED IN A SIMILAR MANNER UNDER A STATUTE OF NEW YORK
"IS EFFECTIVE FOR MANY PURPOSES THOUGH ITS AMOUNT IS UNDETERMINED.  IT
IS NOTICE TO MORTGAGEES OR PURCHASERS, WHO ARE HELD TO LOAN OR PURCHASE
AT THEIR OWN RISK IF THEY TAKE THEIR MORTGAGES OR DEEDS BEFORE THE TAX
HAS BEEN ASSESSED OR PAID."  THE PRECISE DECISION IN THAT CASE ALLOWING
PRIORITY TO THE UNITED STATES UNDER R.S. 3466 FOR DEBTS DUE BY AN
INSOLVENT CORPORATION OVER CLAIMS OF THE STATE FOR FRANCHISE TAXES DUE
BUT NOT ASSESSED OR LIQUIDATED UNTIL AFTER A RECEIVERSHIP, IN NO WAY
DETRACTED FROM THE RECOGNITION OF THE EFFECTIVENESS OF THE STATE LAW
CREATING A LIEN AS AGAINST MORTGAGEES AND PURCHASERS.  AS THE COURT
SAID, "AGAINST MORTGAGEES AND PURCHASERS A LIEN PERFECTED AFTERWARDS
MAY TAKE EFFECT BY RELATION AS OF THE DATE OF THE INCHOATE LIEN THROUGH
WHICH MORTGAGEES AND PURCHASERS BECOME CHARGEABLE WITH NOTICE."  ID.,
P. 293.  SEE ALSO, OSTERBERG V. UNION TRUST CO., 93 U.S. 424, 425, 428;
PEOPLE V. COMMISSIONERS, 104 U.S. 466, 468.  COMPARE SHOTWELL V. MOORE,
129 U.S. 590, 598.  THE LIEN IN SUCH A CASE, THOUGH INCHOATE ON THE DAY
SPECIFIED, AND MATURING WHEN THE EXTENT OF LIABILITY IS ASCERTAINED BY
THE STATUTORY PROCESS, IS SIMILAR IN THAT RESPECT, AS THE COURT SAID IN
THE MACLAY CASE, TO THE LIEN OF A TRANSFER TAX OR DUTY UPON THE ESTATE
OF A DECEDENT WHICH IS EFFECTIVE ALTHOUGH THE AMOUNT IS ASCERTAINED
AFTER DEATH. 

OUR PRESENT INQUIRY IS WHETHER, ASSUMING THE VALIDITY OF THE STATE
STATUTE CREATING A LIEN AS OF OCTOBER 1, 1936, AS AGAINST OTHER
SUBSEQUENT PURCHASERS, IT SHOULD BE DEEMED INVALID AS AGAINST THE
UNITED STATES.  THE QUESTION IS NOT WHETHER SUCH A LIEN COULD BE
ENFORCED AGAINST THE UNITED STATES.  THE FACT THAT THE UNITED STATES
HAD TAKEN TITLE AND THAT PROCEEDINGS COULD NOT BE TAKEN AGAINST THE
UNITED STATES WITHOUT ITS CONSENT WOULD PROTECT IT AGAINST SUCH
ENFORCEMENT.  BUT THAT IMMUNITY WOULD NOT BE PREDICATED UPON THE
INVALIDITY OF THE LIEN.  IF IN THIS INSTANCE TITLE HAD BEEN TAKEN BY
THE UNITED STATES IN THE SUMMER OF 1937 AFTER THE AMOUNT OF THE TAXES
HAD BEEN ASCERTAINED AND THE RESPECTIVE LIENS WERE CONCEDEDLY VALID,
STILL PROCEEDINGS AGAINST THE UNITED STATES COULD NOT BE PROSECUTED
WITHOUT ITS CONSENT. 

THE GOVERNMENT IS NOT CONTENT WITH THAT MEASURE OF PROTECTION.  THE
GOVERNMENT BRINGS THIS SUIT IN THE VIEW THAT IT IS ENTITLED TO HAVE A
MARKETABLE TITLE AND IT SEEKS TO REMOVE THE LIENS IN QUESTION AS CLOUDS
UPON THAT TITLE WHICH WOULD INTERFERE WITH THE DISPOSITION OF THE LANDS
IN THE FUTURE.  FROM THAT STANDPOINT THE GOVERNMENT ASKS A DECREE
DECLARING THE INVALIDITY OF THE LIENS AND ENJOINING THE STATE FROM
ASSERTING ANY CLAIM IN THE LANDS EITHER ADVERSE TO THE UNITED STATES OR
TO ITS SUCCESSORS IN TITLE.  WE THINK THAT THE UNITED STATES IS NOT
ENTITLED TO THAT RELIEF.  THE UNITED STATES TOOK THE CONVEYANCES WITH
KNOWLEDGE OF THE STATE LAW FIXING THE LIEN AS OF OCTOBER 1ST.  THAT LAW
IN CREATING SUCH LIENS FOR THE TAXES SUBSEQUENTLY ASSESSED IN DUE
COURSE AND MAKING THEM EFFECTIVE AS AGAINST SUBSEQUENT PURCHASERS DID
NOT CONTRAVENE THE CONSTITUTION OF THE UNITED STATES AND WE PERCEIVE NO
REASON WHY THE UNITED STATES, ALBEIT PROTECTED WITH RESPECT TO
PROCEEDINGS AGAINST IT WITHOUT ITS CONSENT, SHOULD STAND, SO FAR AS THE
EXISTENCE OF THE LIENS IS CONCERNED, IN ANY DIFFERENT POSITION FROM
THAT OF OTHER PURCHASERS OF LANDS IN ALABAMA WHO TAKE CONVEYANCES ON
AND AFTER THE SPECIFIED TAX DATE.  IT IS FAMILIAR PRACTICE FOR GRANTEES
WHO TAKE TITLE IN SUCH CIRCUMSTANCES TO SEE THAT PROVISION IS MADE FOR
THE PAYMENT OF TAXES AND THE GOVERNMENT COULD EASILY HAVE PROTECTED
ITSELF IN LIKE MANNER.  FINDING NO CONSTITUTIONAL INFIRMITY IN THE
STATE LEGISLATION, WE THINK THAT THE LIENS SHOULD BE HELD VALID. 

WE MAKE NO EXCEPTION OF THE TRACT CONVEYED TO THE UNITED STATES ON
THE TAX DAY, OCTOBER 1, 1936, AS WE THINK THE STATE STATUTE, AS
CONTENDED BY THE STATE, IS TO BE DEEMED EFFECTIVE FROM THE MOMENT THE
TAX DAY BEGAN.  SEE BECK V. JOHNSON, 235 ALA. 323, 324; 179 SO. 225. 

SECOND.  WITH RESPECT TO THE TAX SALES THE CASE HAS A DIFFERENT
ASPECT.  THE PROCEEDINGS IN THE COUNTY COURT FOR THE SALE OF THE LANDS
WERE TAKEN AND THE DECREES WERE RENDERED AFTER THE UNITED STATES HAD
BECOME THE OWNER OF THE TRACTS.  A PROCEEDING AGAINST PROPERTY IN WHICH
THE UNITED STATES HAS AN INTEREST IS A SUIT AGAINST THE UNITED STATES. 
THE SIREN, 7 WALL.  152, 154.  THE UNITED STATES WAS AN INDISPENSABLE
PARTY TO PROCEEDINGS FOR THE SALE OF THE LANDS, AND IN THE ABSENCE OF
ITS CONSENT TO THE PROSECUTION OF SUCH PROCEEDINGS, THE COUNTY COURT
WAS WITHOUT JURISDICTION AND ITS DECREES, THE TAX SALES AND THE
CERTIFICATES OF PURCHASE ISSUED TO THE STATE WERE VOID.  MINNESOTA V.
UNITED STATES, 305 U.S. 382, 386.  WHILE PLEADING TO THE CONTRARY IN
ITS ANSWER, THE INVALIDITY OF THE TAX SALES IS NOW CONCEDED BY THE
STATE.    THE UNITED STATES IS ENTITLED TO A DECREE SETTING ASIDE THE
TAX SALES AND THE CERTIFICATES OF PURCHASE, AND IN OTHER RESPECTS THE
COMPLAINT IS DISMISSED.  IT IS SO ORDERED. 

FN1  SECTION 372, ACT NO. 194, GENERAL ACTS ALABAMA, 1935, P. 566, IS
AS FOLLOWS: 

"FROM AND AFTER THE FIRST DAY OF OCTOBER OF EACH YEAR, WHEN PROPERTY
BECOMES ASSESSABLE THE STATE SHALL HAVE A LIEN UPON EACH AND EVERY
PIECE OR PARCEL OF PROPERTY OWNED BY ANY TAXPAYER FOR THE PAYMENT OF
ALL TAXES WHICH MAY BE ASSESSED AGAINST HIM AND UPON EACH PIECE AND
PARCEL OF PROPERTY REAL OR PERSONAL ASSESSED TO OWNER UNKNOWN WHICH
LIEN SHALL CONTINUE UNTIL SUCH TAXES ARE PAID, AND THE COUNTY SHALL
HAVE A LIKE LIEN THEREON FOR THE PAYMENT OF THE TAXES WHICH MAY BE
ASSESSED BY IT; AND IF SUCH PROPERTY IS WITHIN THE LIMITS OF A
MUNICIPAL CORPORATION SUCH MUNICIPAL CORPORATION SHALL HAVE A LIKE LIEN
THEREON FOR THE PAYMENT OF THE TAXES WHICH MAY BE ASSESSED BY IT.
THESE LIENS SHALL BE SUPERIOR TO ALL OTHER LIENS AND SHALL EXIST IN THE
ORDER NAMED AND EACH OF SUCH LIENS MAY BE ENFORCED AND FORECLOSED BY
SALE FOR TAXES AS PROVIDED IN THIS ACT, OR AS OTHER LIENS UPON PROPERTY
ARE ENFORCED." 

THE STATE ALSO CITES SEC. 8874 OF ARTICLE 6, CHAPTER 314, OF THE CODE
OF ALABAMA, 1923, WHICH PROVIDES: 

"FROM AND AFTER THE FIRST DAY OF OCTOBER OF EACH YEAR, THE STATE
SHALL HAVE A PRIOR LIEN UPON EACH AND EVERY PIECE OR PARCEL OF
PROPERTY, REAL OR PERSONAL, FOR THE PAYMENT OF ANY AND ALL TAXES WHICH
MAY BE ASSESSED AGAINST THE OWNER, OR UPON SUCH PROPERTY, DURING THAT
YEAR, FOR THE USE OF THE STATE; AND THE COUNTY SHALL HAVE A LIKE LIEN
THEREON FOR THE PAYMENT OF THE TAXES WHICH MAY BE ASSESSED AGAINST SUCH
OWNER, OR UPON SUCH PROPERTY, DURING THAT YEAR, FOR THE USE OF THE
COUNTY; AND THESE LIENS SHALL EXIST AS TO ALL LANDS BID IN BY THE STATE
AT TAX SALES FOR THE ANNUAL TAXES THEREAFTER ASSESSED ON THE VALUE OF
THE PROPERTY SO PURCHASED, IN THE EVENT OF THE TAX TITLE FAILING." 

FN2  ACT NO. 194, GENERAL ACTS ALABAMA, 1935, SEC. 29, P. 274. 

FN3  ID., SECS. 50, 72, PP. 284, 292. 

FN4  ID., SEC. 7, P. 263. 

FN5  ID., SEC. 64, P. 288. 

FN6  ID., SEC. 11, P. 267. 
..END :














NEW YORK V. FEIRING, 313 U.S. 283 


NO. 863.  ARGUED MAY 7, 1941.  - DECIDED MAY 26, 1941.  - 118 F.2D 329,
REVERSED. 


1.  THE QUESTION WHETHER AN OBLIGATION TO A STATE IS A TAX ENTITLED TO
PRIORITY UNDER SEC. 64 OF THE BANKRUPTCY ACT IS A FEDERAL QUESTION.  P.
285. 

2.  THE BANKRUPTCY ACT IS OF NATIONWIDE APPLICATION AND SEC. 64
THEREOF IS NOT TO BE CONSTRUED OR VARIED BY THE PARTICULAR
CHARACTERIZATION BY LOCAL LAW OF THE STATE'S DEMAND.  P. 285. 

PROVISIONS OF THE STATE LAW CREATING THE OBLIGATION AND DECISIONS OF
THE STATE COURTS INTERPRETING THEM ARE RESORTED TO NOT TO LEARN WHETHER
THEY HAVE DENOMINATED THE OBLIGATION A "TAX" BUT TO ASCERTAIN WHETHER
ITS INCIDENTS ARE SUCH AS TO CONSTITUTE A TAX WITHIN THE MEANING OF
SEC. 64. 

3.  THE TAX IMPOSED BY THE NEW YORK CITY SALES TAX LAW IS A TAX ON
THE SELLER WITHIN THE MEANING OF SEC. 64 OF THE BANKRUPTCY ACT, AS WELL
AS ON THE BUYER, SINCE BOTH ARE MADE LIABLE FOR PAYMENT IN INVITUM AND
SUBJECT TO DISTRAINT OF THEIR PROPERTY FOR ITS COLLECTION.  P. 287. 

IT IS NOT ANY THE LESS A TAX LAID ON THE SELLER BECAUSE THE STATUTE
PLACES A LIKE BURDEN IN THE ALTERNATIVE ON THE PURCHASER OR BECAUSE IT
AFFORDS TO THE SELLER FACILITIES OF WHICH HE DID NOT AVAIL HIMSELF TO
PASS THE TAX ON TO THE BUYER. 

CITY OF NEW YORK V. FEIRING, TRUSTEE IN BANKRUPTCY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 552, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
DISTRICT COURT REFUSING PRIORITY OF PAYMENT TO A TAX CLAIM ASSERTED BY
THE CITY OF NEW YORK UNDER SEC. 64 OF THE BANKRUPTCY ACT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE OBLIGATION IMPOSED UPON SELLERS BY A NEW
YORK CITY SALES TAX (NO. 20, LOCAL LAWS OF NEW YORK CITY, 1934, AS
AMENDED, NO. 24, LOCAL LAWS OF NEW YORK CITY, 1934), TO PAY A TAX LAID
UPON RECEIPTS FROM SALES OF PERSONAL PROPERTY AND COLLECTIBLE
ALTERNATIVELY FROM THE BUYER OR THE SELLER IS A "TAX" ENTITLED TO
PRIORITY OF PAYMENT IN BANKRUPTCY UNDER SEC. 64 OF THE BANKRUPTCY ACT. 

PETITIONER, NEW YORK CITY, FILED ITS CLAIM AGAINST THE ESTATE OF THE
BANKRUPT FOR TAXES ON SALES OF TANGIBLE PROPERTY BY THE BANKRUPT DURING
THE FIVE YEARS FOLLOWING JANUARY 10, 1934.  IN THE PROCEEDING BEFORE
THE REFEREE IT APPEARED THAT THE BANKRUPT HAD FAILED TO COLLECT MOST OF
THE TAXES FROM ITS BUYERS AS REQUIRED BY THE APPLICABLE LAW, AND THAT
THE SOLE ISSUE WAS WITH RESPECT TO THE RIGHT OF THE CITY TO PRIORITY OF
PAYMENT OF THE CITY'S CLAIM OVER THOSE OF GENERAL CREDITORS.  THE
DISTRICT COURT SET ASIDE THE REFEREE'S ORDER ALLOWING THE PRIORITY AND
THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED, 118 F.2D 329,
HOLDING THAT THE SUM CLAIMED WAS NOT A TAX, BUT THAT THE "BANKRUPT WAS
LIABLE TO THE CITY AS A TAX COLLECTOR WHO OWES AS A DEBT THE AMOUNT OF
TAXES COLLECTED OR TO BE COLLECTED."  WE GRANTED CERTIORARI APRIL 14,
1941, BECAUSE OF THE SUGGESTED FAILURE OF THE COURT BELOW TO FOLLOW OUR
DECISION IN NEW YORK CITY V. GOLDSTEIN, 299 U.S. 522, REVERSING IN RE
LAZAROFF, 84 F.2D 982, AND OF THE ASSERTED CONFLICT IN PRINCIPLE OF THE
DECISION BELOW WITH THAT OF THE COURT OF APPEALS FOR THE TENTH CIRCUIT
IN BARBEE V. OKLAHOMA TAX COMMISSION, 103 F.2D 114. 

840, 874, AWARDS PRIORITY OF PAYMENT, IN BANKRUPTCY, TO "TAXES LEGALLY
DUE AND OWING BY THE BANKRUPT TO THE UNITED STATES OR ANY STATE OR ANY
SUBDIVISION THEREOF  ...  "  WHETHER THE PRESENT OBLIGATION IS A "TAX"
ENTITLED TO PRIORITY WITHIN THE MEANING OF THE STATUTE IS A FEDERAL
QUESTION.  NEW JERSEY V. ANDERSON, 203 U.S. 483, 491; CF. BURNET V.
HARMEL, 287 U.S. 103, 110; PALMER V. BENDER, 287 U.S. 551, 555; CF.
UNITED STATES V. PELZER, 312 U.S. 399.  INTENDED TO BE NATION-WIDE IN
ITS APPLICATION, NOTHING IN THE LANGUAGE OF SEC. 64 OR ITS LEGISLATIVE
HISTORY SUGGESTS THAT ITS INCIDENCE IS TO BE CONTROLLED OR VARIED BY
THE PARTICULAR CHARACTERIZATION BY LOCAL LAW OR THE STATE'S DEMAND. 
HENCE WE LOOK TO THE TERMS AND PURPOSES OF THE BANKRUPTCY ACT AS
ESTABLISHING THE CRITERIA UPON THE BASIS OF WHICH THE PRIORITY IS TO BE
ALLOWED. 

AS WAS POINTED OUT IN NEW JERSEY V. ANDERSON, SUPRA, 491, THE
PRIORITY COMMANDED BY SEC. 64 EXTENDS TO THOSE PECUNIARY BURDENS LAID
UPON INDIVIDUALS OR THEIR PROPERTY, REGARDLESS OF THEIR CONSENT, FOR
THE PURPOSE OF DEFRAYING THE EXPENSES OF GOVERNMENT OR OF UNDERTAKINGS
AUTHORIZED BY IT.  THE PARTICULAR DEMAND FOR WHICH THE CITY NOW CLAIMS
PRIORITY OF PAYMENT AS A TAX IS CREATED AND DEFINED BY STATE
ENACTMENT.  WE TURN TO ITS PROVISIONS AND TO THE DECISIONS OF THE STATE
COURTS IN INTERPRETING THEM, NOT TO LEARN WHETHER THEY HAVE DENOMINATED
THE OBLIGATION A "TAX" BUT TO ASCERTAIN WHETHER ITS INCIDENTS ARE SUCH
AS TO CONSTITUTE A TAX WITHIN THE MEANING OF SEC. 64.  CF. MORGAN V.
COMMISSIONER, 309 U.S. 78, 80, 81 AND CASES CITED; UNITED STATES V.
PELZER, SUPRA; RYERSON V. UNITED STATES, 312 U.S. 405. 

THE PRESENT EXACTION IS THAT WHICH WAS CONSIDERED, AND ITS
CONSTITUTIONALITY SUSTAINED, IN MCGOLDRICK V. BERWIND-WHITE CO., 309
U.S. 33.  THE DISCUSSION OF IT THERE WILL BE SUPPLEMENTED HERE ONLY SO
FAR AS IS NEEDFUL FOR THE DISPOSITION OF THE ISSUE NOW BEFORE US.  IT
WAS ENACTED BY THE MUNICIPAL ASSEMBLY OF NEW YORK CITY AS AN EMERGENCY
REVENUE MEASURE TO DEFRAY THE EXPENSE OF UNEMPLOYMENT RELIEF, PURSUANT
TO AUTHORITY CONFERRED BY THE STATE LEGISLATURE.  CH. 815, NEW YORK
LAWS 1933; CH. 873, NEW YORK LAWS 1934.  ORIGINALLY NO. 24 OF NEW YORK
LOCAL LAWS, 1934, IT HAS SINCE BEEN ANNUALLY RENEWED WITH MINOR
AMENDMENTS NOT NOW MATERIAL.  SECTION 2 LAYS A TAX UPON RECEIPTS FROM
RETAIL SALES IN NEW YORK CITY OF TANGIBLE PERSONAL PROPERTY, AND
REQUIRES THE SELLER, WITH EXCEPTIONS NOT NOW MATERIAL, TO CHARGE THE
BUYER WITH THE AMOUNT OF THE TAX, SEPARATELY FROM THE SALES PRICE AND
TO COLLECT THE TAX FROM HIM.  PENALTIES ARE IMPOSED BY SEC. 15 FOR THE
SELLER'S WILLFUL FAILURE TO COMPLY WITH THESE REQUIREMENTS.  SECTION 2
ALSO COMMANDS THAT THE TAX "SHALL BE PAID BY THE PURCHASER TO THE
VENDOR, FOR AND ON ACCOUNT OF THE CITY OF NEW YORK."  SECTION 5
REQUIRES THE SELLER TO FILE WITH THE CITY COMPTROLLER A "RETURN OF HIS
RECEIPTS AND OF THE TAXES PAYABLE THEREON" FOR PRESCRIBED PERIODS. 
THE COMPTROLLER THE TAXES UPON ALL RECEIPTS REQUIRED TO BE INCLUDED IN
HIS RETURN AND ALSO PROVIDES THAT "ALL TAXES FOR THE PERIOD FOR WHICH A
RETURN IS REQUIRED TO BE FILED SHALL BE DUE FROM THE VENDOR AND PAYABLE
TO THE COMPTROLLER ON THE DATE LIMITED FOR THE FILING OF THE RETURN FOR
SUCH PERIOD, WITHOUT REGARD TO WHETHER A RETURN IS FILED OR WHETHER THE
RETURN WHICH IS FILED CORRECTLY SHOWS THE AMOUNT OF RECEIPTS AND THE
TAXES DUE THEREON."  BUT IF THE SELLER FAILS TO COLLECT THE TAX SEC. 2
ALSO MAKES IT THE DUTY OF THE PURCHASER TO FILE A RETURN WITH THE
COMPTROLLER AND COMMANDS THAT "SUCH TAX SHALL BE PAYABLE BY THE
PURCHASER DIRECTLY TO THE COMPTROLLER." 

BY SEC. 8, WHENEVER EITHER THE SELLER OR PURCHASER "SHALL FAIL TO
COLLECT OR PAY OVER ANY TAX AND/OR TO PAY ANY TAX" IMPOSED BY THE LAW,
THE CITY IS AUTHORIZED TO BRING AN ACTION FOR ITS RECOVERY OR, AS AN
ALTERNATIVE REMEDY, THE COMPTROLLER IS AUTHORIZED TO ISSUE A WARRANT
DIRECTED TO THE SHERIFF OF THE COUNTY, COMMANDING HIM TO LEVY UPON AND
SELL THE REAL AND PERSONAL PROPERTY OF THE SELLER OR THE PURCHASER AND
APPLY THE PROCEEDS TO THE PAYMENT OF THE TAX.  IN CONSTRUING THESE
PROVISIONS THE NEW YORK COURT OF APPEALS HAS HELD THAT WHILE THE
COMPTROLLER MAY PROCEED UNDER SEC. 2 TO COLLECT THE TAX FROM THE
PURCHASER IF HE HAS NOT PAID IT TO THE SELLER, SEE MATTER OF KESBEC,
INC. V. MCGOLDRICK, 278 N.Y. 293; 16 N.E.2D 288, THE DUTY TO PAY THE
TAX IS ALSO LAID UPON THE SELLER WHETHER HE HAS IN FACT COLLECTED IT
AND REGARDLESS OF HIS ABILITY TO COLLECT IT FROM THE BUYER.  MATTER OF
ATLAS TELEVISION CO., 273 N.Y. 51; 6 N.E.2D 94; MATTER OF BROWN
PRINTING CO., 285 N.Y. 47; 32 N.E.2D 787. 

THE STATUTE THUS CONTAINS PROVISIONS WHICH IN ITS NORMAL OPERATION
ARE CALCULATED TO ENABLE THE SELLER TO SHIFT THE TAX BURDEN TO THE
PURCHASER, SEE MATTER OF KESBEC, INC. V. MCGOLDRICK, SUPRA, 297; MATTER
OF MERCHANTS REFRIGERATING CORP. V. TAYLOR, 275 N.Y. 113, 124; 9 N.E.2D
799; CF. MCGOLDRICK V. BERWIND-WHITE CO., SUPRA, 43, 44.  BUT IT IS
PLAIN THAT BOTH THE VENDOR AND THE VENDEE ARE MADE LIABLE FOR PAYMENT
OF THE TAX IN INVITUM WITHOUT REGARD TO THOSE PROVISIONS BY WHICH THE
SELLER MAY SHIFT THE INCIDENCE OF THE TAX TO THE BUYER AND THE TAX MAY
BE SUMMARILY COLLECTED BY DISTRAINT OF THE PROPERTY OF EITHER THE
SELLER OR THE BUYER.  A PECUNIARY BURDEN SO LAID UPON THE BANKRUPT
SELLER FOR THE SUPPORT OF GOVERNMENT, AND WITHOUT HIS CONSENT, THUS HAS
ALL THE CHARACTERISTICS OF A TAX ENTITLED TO PRIORITY OF PAYMENT IN
BANKRUPTCY WITHIN THE MEANING OF SEC. 64 OF THE BANKRUPTCY ACT.  NEW
JERSEY V. ANDERSON, SUPRA.  CF. UNITED STATES V. UPDIKE, 281 U.S. 489,
494.  IT IS NOT ANY THE LESS A TAX LAID ON THE SELLER BECAUSE THE
STATUTE PLACES A LIKE BURDEN IN THE ALTERNATIVE ON THE PURCHASER OR
BECAUSE IT AFFORDS TO THE SELLER FACILITIES OF WHICH HE DID NOT AVAIL
HIMSELF TO PASS THE TAX ON TO THE BUYER.  WHILE AN ACTION IN DEBT MAY
BE RESORTED TO FOR THE RECOVERY OF A TAX, IT IS EVIDENT THAT IN THIS
CASE THE BANKRUPT IS LIABLE TO THE STATE ONLY BECAUSE IT OWES A TAX. 
PRICE V. UNITED STATES, 269 U.S. 492, 500; MILWAUKEE COUNTY V. WHITE
CO., 296 U.S. 268, 271. 

IN NEW YORK CITY V. GOLDSTEIN, SUPRA, WE REVERSED PER CURIAM, CITING
MATTER OF ATLAS TELEVISION CO., SUPRA, A DECISION OF THE COURT OF
APPEALS FOR THE SECOND CIRCUIT THAT A CLAIM OF THE CITY FOR PAYMENT OF
TAX BY THE SELLER WAS NOT ENTITLED TO PRIORITY UNDER SEC. 64 OF THE
BANKRUPTCY ACT.  THE COURT BELOW ATTRIBUTED OUR REVERSAL TO THE
CIRCUMSTANCES THAT AT THAT TIME, THOUGH NOT NOW, SEC. 64 ALLOWED
PRIORITY TO DEBTS ENTITLED TO PRIORITY UNDER STATE LAW, AND TO THE
DECISION OF THE STATE COURT IN THE ATLAS CASE, THAT UPON A GENERAL
ASSIGNMENT FOR THE BENEFIT OF CREDITORS MADE UNDER STATE LAW A CLAIM
AGAINST THE SELLER FOR THE SALES TAX WAS ENTITLED TO PRIORITY.  BUT IN
PLACING THIS INTERPRETATION UPON OUR DECISION IN THE GOLDSTEIN CASE THE
COURT BELOW OVERLOOKED THE FACT THAT THE COURT OF APPEALS RULED IN THE
ATLAS CASE THAT AN ORDINARY DEBT DUE THE STATE IS NOT ENTITLED TO
PRIORITY BY STATE LAW, AND IT SUSTAINED THE PRIORITY IN THAT CASE ONLY
ON THE GROUND THAT THE DEMAND WAS FOR A TAX, THE UNQUALIFIED DUTY TO
PAY WHICH WAS PLACED BY THE STATUTE ON THE SELLER.  THIS INTERPRETATION
OF THE STATE STATUTE WAS REAFFIRMED BY THAT COURT IN THE MATTER OF
BROWN PRINTING CO., SUPRA.  FOR REASONS ALREADY GIVEN, THE DUTY IMPOSED
UPON THE SELLER BY THE TAXING ACT THUS CONSTRUED IS ALSO A TAX WITHIN
THE MEANING OF SEC. 64 OF THE BANKRUPTCY ACT.  REVERSED. 

MR. JUSTICE ROBERTS THINKS THE JUDGMENT SHOULD BE AFFIRMED FOR THE
REASONS STATED BY THE CIRCUIT COURT OF APPEALS. 
..END :




















ROYAL INDEMNITY CO. V. U.S., 313 U.S. 289 


NO. 817.  ARGUED MAY 7, 1941.  - DECIDED MAY 26, 1941.  - 116 F.2D 247,
AFFIRMED. 


1.  COLLECTORS OF INTERNAL REVENUE ARE SUBORDINATE OFFICERS CHARGED
WITH THE MINISTERIAL DUTY OF COLLECTING TAXES; AND IN THE ABSENCE OF
ANY STATUTE GRANTING THE AUTHORITY, THEY CAN NOT RELEASE A BOND TO THE
GOVERNMENT OF THE UNITED STATES SECURING PAYMENT OF A TAX.  ONLY THE
COMMISSIONER OF INTERNAL REVENUE, WITH THE CONSENT OF THE SECRETARY OF
THE TREASURY, IS AUTHORIZED TO COMPROMISE A TAX DEFICIENCY FOR A SUM
LESS THAN THE AMOUNT LAWFULLY DUE.  P. 294. 

2.  THE RULE AGAINST ALLOWING INTEREST AS DAMAGES FOR DELAY IN PAYING
INTEREST ALONE, IS INAPPLICABLE TO AN ACTION TO ENFORCE A SURETY'S
AGREEMENT TO PAY A TAX WITH INTEREST FOUND DUE TO THE GOVERNMENT UNDER
THE REVENUE LAWS.  P. 295. 

3.  A SUIT UPON A CONTRACTUAL OBLIGATION TO PAY MONEY AT A FIXED OR
ASCERTAINABLE TIME IS A SUIT TO RECOVER DAMAGE FOR ITS BREACH,
INCLUDING BOTH THE PRINCIPAL AMOUNT AND INTEREST BY WAY OF DAMAGE FOR
DELAY IN PAYMENT OF THE PRINCIPAL, AFTER THE DUE DATE.  AND, IN THE
ABSENCE OF ANY CONTROLLING STATUTORY REGULATION, THE TRIAL COURT IS AS
COMPETENT TO DETERMINE THE AMOUNT OF INTEREST FOR DELAY AS ANY OTHER
ITEM OF DAMAGE.  P. 295. 

4.  IN THE ABSENCE OF AN APPLICABLE FEDERAL STATUTE, IT IS FOR THE
FEDERAL COURTS TO DETERMINE, ACCORDING TO THEIR OWN CRITERIA, THE
APPROPRIATE MEASURE OF DAMAGE, EXPRESSED IN TERMS OF INTEREST, FOR
DELAYED PAYMENT OF A CONTRACTUAL OBLIGATION OF THE UNITED STATES.  P.
296. 

5.  IN AN ACTION AT LAW BY THE UNITED STATES TO RECOVER AN AMOUNT DUE
AND OWING FROM A TAXPAYER'S SURETY, EQUITABLE RULES GOVERNING INTEREST
RECOVERABLE IN SUITS FOR AN ACCOUNTING OR FOR RECOVERY ON QUASI
CONTRACTUAL OBLIGATIONS ARE INAPPLICABLE, AND INTEREST UPON THE
PRINCIPAL SUM FROM THE DATE OF DEFAULT, AT A FAIR RATE, IS AN
APPROPRIATE MEASURE OF DAMAGE FOR THE DELAY IN PAYMENT.  P. 296. 

6. IN THE CIRCUMSTANCES OF THIS CASE, A SUITABLE RATE OF INTEREST IS
THAT PREVAILING IN NEW YORK, THE STATE WHERE THE OBLIGATION WAS
CONTRACTED AND TO BE PERFORMED.  P. 297. 

ROYAL INDEMNITY CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 552, TO REVIEW A JUDGMENT AFFIRMING WITH
MODIFICATION A RECOVERY BY THE UNITED STATES IN AN ACTION AGAINST THE
SURETY ON A TAXPAYER'S BOND. 

THE COLLECTOR OF INTERNAL REVENUE WAS VESTED WITH IMPLIED POWER TO
CANCEL THE SURETY BOND AND TO DISCHARGE FROM LIABILITY THEREON.  26
U.S.C. SEC. 1541(A); R.S. 3183; 26 U.S.C. SEC. 1549(B).  SEE UNITED
STATES V. WOLPER, 86 F.2D 715; UNITED STATES V. ROYAL INDEMNITY CO.,
116 F.2D 247, 248; UNITED STATES V. FIDELITY & DEPOSIT CO., 80 F.2D 24,
CERT. DEN.  298 U.S. 665. 

THIS IMPLIED POWER DERIVES FROM HIS EXPRESS POWERS IN THE COLLECTION
OF TAXES.  HEINEMANN CHEMICAL CO. V. UNITED STATES, 92 F.2D 302, 303,
304; BREWERTON V. UNITED STATES, 9 F.SUPP.  503, 507.  CF., UNITED
STATES V. ALEXANDER, 110 U.S. 325, 328.  THE GOVERNMENT'S ACQUIESCENCE
IN THE PRACTICE POINTS PERSUASIVELY TO THE EXISTENCE OF SUCH IMPLIED
POWER. 

IN THE COLLECTION OF TAXES, THE COLLECTOR IS NOT A SUBORDINATE
OFFICIAL OF THE GOVERNMENT.  26 U.S.C. SEC. 1541(A).  HE HAS NO
SUPERIOR VESTED WITH POWER OR AUTHORITY TO DIRECT AND CONTROL HIM IN
THE PERFORMANCE OF HIS DUTIES.  STATE EX REL. LANDIS V. BLAKE, 110 FLA.
178, 181; PEOPLE EX REL. JACOBUS V. VAN WYCK, 157 N.Y. 495, 506; KANE
V. ERIE R. CO., 142 F. 682, 685; IN RE WEAVER, 131 N.Y.S. 144, 145. 

THE COLLECTOR IS VESTED WITH POWER TO COLLECT TAXES WITHOUT DIRECTION
AS TO HOW IT IS TO BE EXERCISED.  HE THEREFORE HAS DISCRETION IN THE
EXERCISE OF THE POWER.  STATE V. SUPERIOR COURT, 98 P.2D 985, 900;
STATE V. HILDEBRANT, 93 OH. 1, 11, 12; THOMPSON V. UNITED STATES, 9 CT.
CLS. 187, 197, 198; AMERICAN STORES CO. V. UNITED STATES, 68 CT. CLS.
128; LEVY V. UNITED STATES, 63 CT. CLS. 126; UNITED STATES V. WEST
POINT GROCERY CO., 30 F.2D 941; UNITED STATES V. CORLISS STEAM ENGINE
CO., 91 U.S. 321, 322, 323. 

TO THE SAME POINT, SEE GREAT FALLS MFG. CO. V. ATTORNEY GENERAL, 124
U.S. 581, 596, 597; MARYLAND STEEL CO. V. UNITED STATES, 235 U.S. 451,
459; UNITED STATES V. MASON & HANGAR CO., 260 U.S. 323, 325; WELLS V.
NICKLES, 104 U.S. 444; BROOKS V. UNITED STATES, 39 CT. CLS. 494, 505;
HAYNES V. BUTLER, 30 ARK. 69; RELIANCE MFG. CO. V. BOARD OF PRISON
COMMISSIONERS, 161 KY. 135, 142; STATE V. YOUNKIN, 108 KAN. 634, 638;
STATE EX REL. BYBEE V. HACKMANN, 276 MO. 110, 116; STATE V. DISTRICT
COURT, 19 N.D. 819; KASIK V. JANSSEN, 158 WIS. 606, 609, 610; CITY OF
WILBURTON V. KING, 18 P.2D 1075, 1076; MAYOR V. SANDS, 105 N.Y. 210,
217-220. 

THE INTEREST CLAIMED BY RESPONDENT IS THAT PROVIDED BY NEW YORK
GENERAL BUSINESS LAW, CONSOL.  LAWS, C. 20, SEC. 370, AS DAMAGES FOR
BREACH OF CONTRACT.  THIS INTEREST IS NOT PROVIDED FOR IN THE BOND; AND
IS THEREFORE NOT A PART OF THE CONTRACT AND CANNOT BE RECOVERED AS
SUCH.  IF RECOVERABLE AT ALL, IT IS BY WAY OF DAMAGES FOR THE DETENTION
OF MONEY AFTER IT IS DUE. 

INTEREST IS THE COMPENSATION ALLOWED BY LAW, OR FIXED BY THE PARTIES,
FOR THE USE OR FORBEARANCE OF MONEY, OR AS DAMAGES FOR ITS DETENTION. 
LOUDON V. SHELBY COUNTY TAXING DISTRICT, 104 U.S. 771, 774; NEW ORLEANS
INS. ASSN. V. PIAGGIO, 16 WALL.  378, 386; HIATT V. BROWN, 15 WALL. 
177, 185, 186. 

THE LAW ALLOWS INTEREST ONLY ON THE GROUND OF A CONTRACT, EXPRESS OR
IMPLIED, FOR ITS PAYMENT, OR AS DAMAGES FOR THE DETENTION OF MONEY, OR
FOR THE BREACH OF SOME CONTRACT, OR THE VIOLATION OF SOME DUTY.  MORLEY
V. LAKE SHORE R. CO., 146 U.S. 162, 168; NEW YORK TRUST CO. V. DETROIT
R. CO., 251 F. 514; HERMAN H. HETTLER LUMBER CO. V. OLDS, 242 F. 456,
459. 

INTEREST WHICH MIGHT HAVE BEEN PREVENTED BY REASONABLE AND DILIGENT
EFFORTS ON THE PART OF RESPONDENT IN PROMPTLY ASSERTING AND PROSECUTING
ITS CLAIM IS NOT RECOVERABLE.  WARREN V. STODDARD, 105 U.S. 224, 229;
WICKER V. HOPPOCK, 6 WALL.  94; WESTERN REAL ESTATES TRUSTEES V.
HUGHES, 172 F. 206 211; LILLARD V. KENTUCKY DISTILLERS & WAREHOUSE CO.,
134 F. 168, 178. 

WHERE SUCH INTEREST IS CLAIMED, LACHES IS A BAR TO RECOVERY.  UNITED
STATES V. SANBORN, 135 U.S. 271, 281, 282; REDFIELD V. YSTALYFERA IRON
CO., 110 U.S. 174; REDFIELD V. BARTELS, 139 U.S. 694; MASON V.
WALKOWICH, 150 F. 699, 700, 706; JOURALMON V. EWING, 80 F. 604, 607,
608; STEWART V. SCHELL, 31 F. 65, 66; MITCHELL V. KELSEY, FED. CAS. NO.
9,664.  THE SAME RULE HAS BEEN HELD BY THIS COURT TO APPLY TO THE
UNITED STATES.  UNITED STATES V. SANBORN, SUPRA. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

A COLLECTOR OF INTERNAL REVENUE, WHO HAD ACCEPTED A SURETY BOND FILED
WITH HIM BY A TAXPAYER TO ACCOMPANY HIS CLAIM FOR ABATEMENT OF INCOME
TAX, CONSENTED TO TERMINATION OF ALL LIABILITY UPON THE BOND AND
SURRENDERED IT BEFORE ITS OBLIGATION WAS FULLY SATISFIED.  THE
QUESTIONS FOR DECISION ARE WHETHER THE COLLECTOR HAD POWER TO RELEASE
THE OBLIGATION OF THE BOND AND, IF NOT, WHETHER THE UNITED STATES IS
ENTITLED TO INTEREST ON THE AMOUNT OF ITS CLAIM AGAINST THE SURETY. 

UPON THE COMMISSIONER'S ASSESSMENT IN 1920 OF ADDITIONAL INCOME TAXES
IN THE SUM OF $29,128, ASSERTED TO BE DUE FROM THE TAXPAYER FOR 1917,
THE TAXPAYER FILED A CLAIM FOR ABATEMENT OF THE ASSESSMENT, AND TO
SECURE SUSPENSION OF COLLECTION OF THE TAX, EXECUTED A BOND TO THE
COLLECTOR IN THE SUM OF $38,000 WITH PETITIONER AS SURETY, CONDITIONED
UPON PAYMENT ON MAY 2, 1923, OF THE TAX WITH INTEREST.  THE
COMMISSIONER ALLOWED THE CLAIM IN ABATEMENT IN PART BUT REJECTED IT TO
THE EXTENT OF $8,223.38, ON WHICH INTEREST HAD THEN ACCRUED IN THE SUM
OF $4,169.07.  ON DEMAND OF THE COMMISSIONER ON AUGUST 5, 1926, FOR THE
PRINCIPAL AMOUNT OF THE TAX WITH INTEREST TO THE DATE OF DEMAND,
PETITIONER PAID ONLY THE PRINCIPAL AMOUNT OF THE TAX TO THE COLLECTOR
BY DRAFT OF DECEMBER 17, 1926, BEARING THE NOTATION ON ITS FACE THAT IT
WAS IN FULL PAYMENT OF THE TAX AND OF ALL LIABILITY ON THE BOND.  THE
COLLECTOR COLLECTED THE DRAFT AND SURRENDERED THE BOND TO PETITIONER
WITH THE STATEMENT THAT ALL LIABILITY ON IT HAD TERMINATED. 

IN THE PRESENT SUIT ON THE BOND THE DISTRICT COURT HELD THAT THE
COLLECTOR WAS WITHOUT AUTHORITY TO RELEASE THE BOND AND GAVE JUDGMENT
FOR THE SUM OF $4,169.07, FOUND BY THE COMMISSIONER TO BE THE INTEREST
ON THE UNPAID TAX TO THE DATE OF THE REJECTION OF THE CLAIM FOR ITS
ABATEMENT, BUT REFUSED TO ALLOW INTEREST ACCRUING SUBSEQUENT TO THAT
DATE.  ON APPEAL THE CIRCUIT COURT OF APPEALS RULED THAT, UNDER SEC.
370 OF THE NEW YORK GENERAL BUSINESS LAW, INTEREST AT SIX PER CENT.
SHOULD BE ADDED TO THE UNPAID BALANCE FOUND TO BE DUE ON THE BOND, AND
MODIFIED THE JUDGMENT ACCORDINGLY.  116 F.2D 247.  WE GRANTED
CERTIORARI APRIL 7, 1941, BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
PRESENTED, AND OF A CONFLICT OF THE DECISION BELOW WITH THAT OF THE
CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT IN HEINEMANN CHEMICAL
CO. V. UNITED STATES, 92 F.2D 302. 

IT IS NOT DENIED THAT THE COLLECTOR HAD AUTHORITY TO ACCEPT THE BOND,
THAT IT CREATED A NEW CAUSE OF ACTION DISTINCT FROM THAT ON THE
TAXPAYER'S OBLIGATION, AND THAT, IF IT HAS NOT BEEN RELEASED, THE
UNITED STATES HAS AUTHORITY TO SUE UPON IT, SEE UNITED STATES V. JOHN
BARTH CO., 279 U.S. 370; GULF STATES STEEL CO. V. UNITED STATES, 287
U.S. 32; UNITED STATES V. WOLPER, 86 F.2D 715; UNITED STATES V. OSWEGO
FALLS CORP., 113 F.2D 322.  AND IT IS CONCEDED THAT, AS THE BOND WAS
CONDITIONED ON THE PAYMENT OF THE TAXES WITH INTEREST, PETITIONER IS
INDEBTED TO THE GOVERNMENT UPON IT FOR THE AMOUNT OF THE INTEREST WHICH
HAD ACCRUED AT THE TIME OF THE REJECTION OF THE CLAIM IN ABATEMENT. 
SEE BOTANY WORSTED MILLS V. UNITED STATES, 278 U.S. 282; HUGHSON V.
UNITED STATES, 59 F.2D 17, 19; UNITED STATES V. STEINBERG, 100 F.2D
124, 126.  RESPONDENT'S CONTENTIONS ARE THAT THE BALANCE OF INTEREST
THEN DUE WAS RELEASED BY THE COLLECTOR AND THAT IN ANY CASE IT WAS NOT
BOUND TO PAY INTEREST ON THAT BALANCE. 

POWER TO RELEASE OR OTHERWISE DISPOSE OF THE RIGHTS AND PROPERTY OF
THE UNITED STATES IS LODGED IN THE CONGRESS BY THE CONSTITUTION.  ART.
IV, SEC. 3, CL. 2.  SUBORDINATE OFFICERS OF THE UNITED STATES ARE
WITHOUT THAT POWER, SAVE ONLY AS IT HAS BEEN CONFERRED UPON THEM BY ACT
OF CONGRESS OR IS TO BE IMPLIED FROM OTHER POWERS SO GRANTED. 
WHITESIDE V. UNITED STATES, 93 U.S. 247, 256-257; HART V. UNITED
STATES, 95 U.S. 316, 318; HAWKINS V. UNITED STATES, 96 U.S. 689, 691;
UTAH POWER & LIGHT CO. V. UNITED STATES, 243 U.S. 389, 409; WILBER
NATIONAL BANK V. UNITED STATES, 294 U.S. 120, 123-124; CF. UNITED
STATES V. SHAW, 309 U.S. 495, 501; RITTER V. UNITED STATES, 28 F.2D
265; UNITED STATES V. GLOBE INDEMNITY CO., 94 F.2D 576.  COLLECTORS OF
INTERNAL REVENUE ARE SUBORDINATE OFFICERS CHARGED WITH THE MINISTERIAL
DUTY OF COLLECTING THE TAXES.  R.S. SEC. 3183, ERSKINE V. HOHNBACH, 14
WALL.  613, 616; HARDING V. WOODCOCK, 137 U.S. 43, 46; MOORE ICE CREAM
CO. V. ROSE, 289 U.S. 373, 380, 381.  THERE IS NO STATUTE IN TERMS
AUTHORIZING THEM TO REMIT TAXES, TO PASS UPON THE CLAIMS FOR ABATEMENT
OF TAXES, OR TO RELEASE ANY OBLIGATION FOR THEIR PAYMENT.  ONLY THE
COMMISSIONER, WITH THE CONSENT OF THE SECRETARY OF THE TREASURY, IS
AUTHORIZED TO COMPROMISE A TAX DEFICIENCY FOR A SUM LESS THAN THE
AMOUNT LAWFULLY DUE.  R.S. SECS. 3220, 3229, 26 U.S.C. 1661; 45 T.R.,
ART. 1011(1918 ACT); BOTANY WORSTED MILLS V. UNITED STATES, SUPRA, 288;
LOEWY & SON V. COMMISSIONER, 31 F.2D 652, 654. 

THERE IS THUS NO BASIS IN THE STATUTES OF THE UNITED STATES FOR
IMPLYING AN AUTHORITY IN A COLLECTOR TO RELEASE A BOND FOR THE PAYMENT
OF THE TAX WHICH THE COMMISSIONER ALONE IS PERMITTED TO REDUCE BY WAY
OF COMPROMISE WHEN THE SECRETARY OF THE TREASURY CONSENTS.  HEINEMANN
CHEMICAL CO. V. UNITED STATES, SUPRA, AND BREWERTON V. UNITED STATES, 9
F.SUPP.  503, TO THE CONTRARY, PLAINLY REST UPON A MISAPPLICATION OF
THE RULING IN UNITED STATES V. ALEXANDER, 110 U.S. 325, WHICH SUSTAINED
THE RELEASE OF A BOND FOR TAXES BY THE SECRETARY OF THE TREASURY WHICH
HAD BEEN SPECIFICALLY AUTHORIZED BY AN ACT OF CONGRESS. 

THE DISTRICT COURT REJECTED THE GOVERNMENT'S CLAIM FOR INTEREST UPON
THE BALANCE FOUND DUE UPON THE BOND AS A DEMAND FOR INTEREST ON
INTEREST, WHICH HAS GENERALLY BEEN HELD NOT TO BE AN APPROPRIATE
MEASURE OF DAMAGES FOR THE DELAYED PAYMENT OF INTEREST ALONE.  SEE
CHEROKEE NATION V. UNITED STATES, 270 U.S. 476, 490.  IN ANY CASE, IT
THOUGHT THAT THE ALLOWANCE OF INTEREST WOULD BE INEQUITABLE BECAUSE OF
THE COLLECTOR'S RETURN OF THE BOND TO PETITIONER AND THE GOVERNMENT'S
DELAY IN BRINGING THE SUIT.  BUT, AS THE COURT OF APPEALS HELD, THE
OBLIGATION OF PETITIONER TO PAY THE INTEREST ACCRUED ON THE PRINCIPAL
AMOUNT OF TAX UNDER THE APPLICABLE PROVISIONS OF THE REVENUE ACT WAS
NOT DAMAGE ASSESSED AGAINST PETITIONER FOR ITS NONPAYMENT OF INTEREST. 
PETITIONER'S OBLIGATION WAS CONTRACTUAL TO PAY AN AMOUNT FOUND TO BE
DUE FROM THE TAXPAYER, AND THE SUIT AGAINST IT IS FOR A DEBT EX
CONTRACTU, DUE AND OWING IN CONFORMITY TO THE TERMS OF THE BOND.  SEE
UNITED STATES V. JOHN BARTH CO., SUPRA; GULF STATES STEEL CO. V. UNITED
STATES, SUPRA. 

A SUIT UPON A CONTRACTUAL OBLIGATION TO PAY MONEY AT A FIXED OR
ASCERTAINABLE TIME IS A SUIT TO RECOVER DAMAGE FOR ITS BREACH,
INCLUDING BOTH THE PRINCIPAL AMOUNT AND INTEREST BY WAY OF DAMAGE FOR
DELAY IN PAYMENT OF THE PRINCIPAL, AFTER THE DUE DATE.  AND IN THE
ABSENCE OF ANY CONTROLLING STATUTORY REGULATION THE TRIAL COURT IS AS
COMPETENT TO DETERMINE THE AMOUNT OF INTEREST FOR DELAY AS ANY OTHER
ITEM OF DAMAGE.  UNITED STATES V. UNITED STATES FIDELITY CO., 236 U.S.
512, 528; YOUNG V. GODBE, 15 WALL.  562, 565; MARYLAND CASUALTY CO. V.
UNITED STATES, 76 F.2D 626; UNITED STATES V. WAGNER, 93 F.2D 77; UNITED
STATES V. HAMILTON, 96 F.2D 878; MASSACHUSETTS BONDING & INS. CO. V.
UNITED STATES, 97 F.2D 879, 881. 

BUT THE RULE GOVERNING THE INTEREST TO BE RECOVERED AS DAMAGES FOR
DELAYED PAYMENT OF A CONTRACTUAL OBLIGATION TO THE UNITED STATES IS NOT
CONTROLLED BY STATE STATUTE OR LOCAL COMMON LAW.  IN THE ABSENCE OF AN
APPLICABLE FEDERAL STATUTE, IT IS FOR THE FEDERAL COURTS TO DETERMINE,
ACCORDING TO THEIR OWN CRITERIA, THE APPROPRIATE MEASURE OF DAMAGE,
EXPRESSED IN TERMS OF INTEREST, FOR NON-PAYMENT OF THE AMOUNT FOUND TO
BE DUE.  BOARD OF COUNTY COMMISSIONERS V. UNITED STATES, 308 U.S. 343,
350, 352; YOUNG V. GODBE, SUPRA, 565; CF. BILLINGS V. UNITED STATES,
232 U.S. 261, 284, ET SEQ. 

THE PRESENT SUIT IS AT LAW FOR THE RECOVERY OF AN AMOUNT DUE AND
OWING, WHICH PETITIONER HAS CONTRACTED TO PAY.  TO SUCH A CASE,
EQUITABLE RULES RELATING TO INTEREST RECOVERABLE IN SUITS FOR AN
ACCOUNTING, OR FOR RECOVERY ON QUASI-CONTRACTUAL OBLIGATIONS ARISING
FROM PAYMENT OF MONEY BY MISTAKE, ARE INAPPLICABLE.  UNITED STATES V.
UNITED STATES FIDELITY CO., SUPRA, 528; CF. REDFIELD V. YSTALYFERA IRON
CO., 110 U.S. 174, 176; UNITED STATES V. SANBORN, 135 U.S. 271, 281;
REDFIELD V. BARTELS, 139 U.S. 694, 702.  HERE, RESPONSIBILITY FOR DELAY
IN PAYMENT RESTS QUITE AS MUCH UPON THE DEBTOR, WHO IS CHARGEABLE WITH
KNOWLEDGE OF ITS OWN OBLIGATION AND THE BREACH OF IT, AS UPON THE
CREDITOR.  AND IN THE MEANTIME THE DEBTOR HAS HAD THE USE OF THE MONEY,
OF WHICH ITS DEFAULT HAS DEPRIVED THE CREDITOR.  INTEREST UPON THE
PRINCIPAL SUM FROM THE DATE OF DEFAULT, AT A FAIR RATE, IS THEREFORE AN
APPROPRIATE MEASURE OF DAMAGE FOR THE DELAY IN PAYMENT.  UNITED STATES
V. UNITED STATES FIDELITY CO., SUPRA, 528; MASSACHUSETTS BONDING & INS.
CO. V. UNITED STATES, SUPRA.  UNITED STATES V. WAGNER, SUPRA; MARYLAND
CASUALTY CO. V. UNITED STATES, SUPRA.  WHILE THE NEW YORK STATUTE
FIXING THE RATE OF INTEREST IS NOT CONTROLLING, THE ALLOWANCE OF
INTEREST DOES NOT CONFLICT WITH ANY STATE OR FEDERAL POLICY, AND WE
THINK THAT, IN THE CIRCUMSTANCES OF THIS CASE, A SUITABLE RATE IS THAT
PREVAILING IN THE STATE WHERE THE OBLIGATION WAS GIVEN AND TO BE
PERFORMED.  SEE YOUNG V. GODBE, SUPRA, 565; BOARD OF COUNTY
COMMISSIONERS V. UNITED STATES, SUPRA, 352.  AFFIRMED. 

MR. JUSTICE BLACK, DISSENTING: 

I AGREE WITH THE COURT'S JUDGMENT THAT THE COLLECTOR OF INTERNAL
REVENUE DID NOT HAVE POWER TO RELEASE A TAXPAYER FROM HIS OBLIGATION TO
PAY, BUT I AM UNABLE TO AGREE WITH THE COURT'S CONCLUSIONS ON THE
QUESTION OF INTEREST.  THE CONTRACT ON WHICH THE GOVERNMENT'S SUIT
RESTS CONTAINED NO PROVISION FOR INTEREST.  THE STATE'S INTEREST LAW,
ACCORDING TO THE HOLDING OF THE COURT, IS NOT CONTROLLING.  CONGRESS
HAS ENACTED NO LAW REQUIRING PAYMENT OF INTEREST AND FIXING AN INTEREST
RATE ON CONTRACTS GUARANTEEING TAX PAYMENTS.  NEVERTHELESS, THIS COURT
NOW REQUIRES THAT INTEREST BE PAID - A JUDICIAL REQUIREMENT WHICH UNDER
SIMILAR CIRCUMSTANCES HAS BEEN FRANKLY DESCRIBED AS "JUDICIAL LAW
MAKING."  BOARD OF COUNTY COMMISSIONERS V. UNITED STATES, 308 U.S. 343,
350. 

WERE THE QUESTION AN OPEN ONE, I WOULD BE RELUCTANT TO ACQUIESCE IN
HOLDING THAT FEDERAL COURTS, IN THE ABSENCE OF STATUTES, COULD OR
SHOULD ASSUME THE POWER TO FIX INTEREST IN SUCH A CASE.  BUT, GRANTING
THAT WE HAVE THE POWER TO TAKE THIS STEP, THE RATE OF INTEREST TO BE
CHARGED IS FROM NECESSITY AN ELEMENT OF THE LEGISLATIVE AND POLICY
POWER THUS EXERCISED, AND THAT RATE MUST THEREFORE BE DETERMINED BY THE
COURT.  THE RATE FIXED IN THIS CASE IS 6%.  RESOLUTION AS TO THE AMOUNT
IS RESTED IN PART AT LEAST ON NEW YORK'S LEGISLATIVE RATE.  THE
INFERENCE IS THAT A DIFFERENT RATE MIGHT APPLY TO CONTRACTS
GUARANTEEING TAX PAYMENTS MADE IN OTHER STATES.  FOR IT IS WELL KNOWN
THAT INTEREST RATES FIXED BY STATE LEGISLATURES ARE NOT UNIFORM BUT
VARY IN AMOUNT. 

SINCE IN PRESCRIBING INTEREST AND FIXING AN INTEREST RATE WE ARE
PASSING UPON QUESTIONS OF PUBLIC POLICY, NOT MARKED AT ALL BY DEFINITE
LEGISLATIVE BOUNDARIES, I FIND IT DIFFICULT TO AGREE TO THE RESULT HERE
FOR TWO REASONS:  (1)  UNLESS THE RATE FIXED IS TO BE CONSIDERED IN THE
NATURE OF A PENALTY, 6% SEEMS VERY HIGH.  A SMALLER RATE WOULD APPEAR
TO COME NEARER TO HARMONIZING WITH FAIR AND EQUITABLE INTEREST
EXACTIONS.  (2)  I AM OF OPINION THAT SINCE OUR "JUDICIAL LAW-MAKING"
IS AND MUST BE NATIONAL IN ITS SCOPE, THE LAW WHICH WE ADOPT FIXING A
RATE OF INTEREST FOR TRANSACTIONS SUCH AS THAT HERE INVOLVED SHOULD
OPERATE WITH UNIFORMITY THROUGHOUT THE NATION.  FEDERAL TAXPAYERS OR
THEIR SURETIES SHOULD NOT BE REQUIRED TO PAY 6% IN ONE STATE, 4% IN A
SECOND, AND 10% IN A THIRD.  SUCH VARYING RATES ARE NOT SUBJECT TO
CRITICISM BY FEDERAL COURTS IF THEY GOVERN LOCAL INTRASTATE
TRANSACTIONS SUBJECT TO STATE LAW.  BUT IT SEEMS TO ME THAT FEDERAL
TAXPAYERS AND THEIR SURETIES SHOULD BE SUBJECT TO THE SAME INTEREST
RATE WITHOUT REGARD TO THE STATE RATES GOVERNING PURELY LOCAL
TRANSACTIONS WITHIN A PARTICULAR AREA IN WHICH FEDERAL TAXPAYERS HAPPEN
TO RESIDE.  TO THE EXTENT THAT THE COURT'S OPINION INDICATES THE
POSSIBILITY OF SUCH A VARIANCE AMONG THE STATES, I AM COMPELLED TO
DISAGREE. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY CONCUR IN THIS OPINION. 
..END :








UNITED STATES V. CLASSIC, 313 U.S. 299 


NO. 618.  ARGUED APRIL 7, 1941.  - DECIDED MAY 26, 1941.  - 35 F.SUPP. 
66, REVERSED. 


1.  REVIEW UNDER THE CRIMINAL APPEALS ACT OF A JUDGMENT SUSTAINING A
DEMURRER TO AN INDICTMENT IS CONFINED TO THE QUESTIONS OF STATUTORY
CONSTRUCTION AND VALIDITY DECIDED BY THE DISTRICT COURT.  P. 309. 

2.  IN LOUISIANA, A PRIMARY ELECTION TO NOMINATE A PARTY CANDIDATE
FOR THE OFFICE OF REPRESENTATIVE IN CONGRESS IS CONDUCTED AT THE PUBLIC
EXPENSE AND REGULATED BY STATUTE.  CANDIDATES WHO MAY BE VOTED FOR AT
GENERAL ELECTIONS ARE RESTRICTED TO PRIMARY NOMINEES; TO PERSONS, NOT
CANDIDATES IN THE PRIMARY, WHO FILE NOMINATION PAPERS WITH THE
REQUISITE NUMBER OF SIGNATURES; AND TO PERSONS WHOSE NAMES MAY BE
LAWFULLY WRITTEN INTO THE BALLOTS BY THE ELECTORS.  THE PRACTICAL
EFFECT IS TO IMPOSE SERIOUS RESTRICTIONS UPON THE CHOICE OF CANDIDATES
BY THE VOTERS SAVE BY VOTING AT THE PRIMARY ELECTION.  THE PRIMARY
ELECTION IS AN INTEGRAL PART OF THE PROCEDURE FOR CHOOSING
REPRESENTATIVES; AND IN THIS CASE, AS ALLEGED BY THE INDICTMENT, ITS
PRACTICAL OPERATION, IN THE PARTICULAR CONGRESSIONAL DISTRICT INVOLVED,
IS TO SECURE THE ELECTION OF THE PRIMARY NOMINEE OF A PARTICULAR
POLITICAL PARTY.  P. 311 ET SEQ. 

3.  THE RIGHT OF THE PEOPLE TO CHOOSE REPRESENTATIVES IN CONGRESS IS
A RIGHT ESTABLISHED AND GUARANTEED BY ART. I, SEC. 2 OF THE
CONSTITUTION AND HENCE IS ONE SECURED BY IT TO THOSE CITIZENS AND
INHABITANTS OF THE STATE WHO ARE ENTITLED TO EXERCISE THE RIGHT.  P.
314. 

THE RIGHT TO VOTE FOR REPRESENTATIVES IN CONGRESS IS A RIGHT "DERIVED
FROM THE STATES," ONLY IN THE SENSE THAT THE STATES ARE AUTHORIZED BY
THE CONSTITUTION TO LEGISLATE ON THE SUBJECT, AS PROVIDED BY SEC. 2 OF
ART. I, TO THE EXTENT THAT CONGRESS HAS NOT RESTRICTED STATE ACTION BY
THE EXERCISE OF ITS POWERS TO REGULATE ELECTIONS UNDER SEC. 4, AND ITS
MORE GENERAL POWER, UNDER ART. I, SEC. 8, CL. 18, "TO MAKE ALL LAWS
WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE
FOREGOING POWERS." 

4.  INCLUDED WITHIN THE RIGHT TO CHOOSE, SECURED BY THE CONSTITUTION,
IS THE RIGHT OF QUALIFIED VOTERS WITHIN A STATE TO CAST THEIR BALLOTS
AND HAVE THEM COUNTED AT CONGRESSIONAL ELECTIONS.  P. 315. 

SINCE THE CONSTITUTIONAL COMMAND IS WITHOUT RESTRICTION OR
LIMITATION, THIS RIGHT, UNLIKE THOSE GUARANTEED BY THE FOURTEENTH AND
FIFTEENTH AMENDMENTS, IS SECURED AGAINST THE ACTION OF INDIVIDUALS AS
WELL AS OF STATES. 

5.  WHERE THE STATE LAW HAS MADE THE PRIMARY ELECTION AN INTEGRAL
PART OF THE PROCEDURE OF CHOOSING REPRESENTATIVES, OR WHERE IN FACT THE
PRIMARY EFFECTIVELY CONTROLS THE CHOICE, THE RIGHT OF THE QUALIFIED
ELECTOR TO VOTE AND HAVE HIS BALLOT COUNTED AT THE PRIMARY, IS PART OF
THE RIGHT TO CHOOSE REPRESENTATIVES SECURED BY ART. I, SEC. 2.  P.
316. 

IN DETERMINING WHETHER A PROVISION OF THE CONSTITUTION APPLIES TO A
NEW SUBJECT MATTER, IT IS OF LITTLE SIGNIFICANCE THAT IT IS ONE WITH
WHICH THE FRAMERS WERE NOT FAMILIAR.  FOR IN SETTING UP AN ENDURING
FRAMEWORK OF GOVERNMENT THEY UNDERTOOK TO CARRY OUT FOR THE INDEFINITE
FUTURE AND IN ALL THE VICISSITUDES OF THE CHANGING AFFAIRS OF MEN,
THOSE FUNDAMENTAL PURPOSES WHICH THE INSTRUMENT ITSELF DISCLOSES. 
HENCE WE READ ITS WORDS, NOT AS WE READ LEGISLATIVE CODES WHICH ARE
SUBJECT TO CONTINUOUS REVISION WITH THE CHANGING COURSE OF EVENTS, BUT
AS THE REVELATION OF THE GREAT PURPOSES WHICH WERE INTENDED TO BE
ACHIEVED BY THE CONSTITUTION AS A CONTINUING INSTRUMENT OF GOVERNMENT. 

6.  A PRIMARY ELECTION WHICH IS A NECESSARY STEP IN THE CHOICE OF
CANDIDATES FOR ELECTION AS REPRESENTATIVES IN CONGRESS, AND WHICH IN
THE CIRCUMSTANCES OF THE CASE CONTROLS THAT CHOICE, IS AN ELECTION
WITHIN THE MEANING OF ART. I, SECS. 2 AND 4 OF THE CONSTITUTION, AND IS
SUBJECT TO CONGRESSIONAL REGULATION AS TO THE MANNER OF HOLDING IT.  P.
317. 

7.  ART. I, SEC. 8, CL. 18 OF THE CONSTITUTION EMPOWERS CONGRESS TO
SAFEGUARD BY APPROPRIATE LEGISLATION THE RIGHT OF CHOICE BY THE PEOPLE
OF REPRESENTATIVES IN CONGRESS SECURED BY SEC. 2 OF ART. I. P. 320. 

8.  SECTION 19 OF THE CRIMINAL CODE, MAKING IT A CRIME TO CONSPIRE TO
"INJURE" OR "OPPRESS" ANY CITIZEN "IN THE FREE EXERCISE OF ANY RIGHT OR
PRIVILEGE SECURED TO HIM BY THE CONSTITUTION," EMBRACES A CONSPIRACY TO
PREVENT QUALIFIED VOTERS FROM EXERCISING THEIR CONSTITUTIONAL RIGHT OF
VOTING, AND HAVING THEIR VOTES COUNTED, IN A PRIMARY ELECTION
PREREQUISITE TO THE CHOICE OF PARTY CANDIDATES FOR A CONGRESSIONAL
ELECTION.  P. 321. 

9.  SECTION 20 OF THE CRIMINAL CODE PROVIDES THAT WHOEVER, "UNDER
COLOR OF ANY LAW," WILLFULLY SUBJECTS ANY INHABITANT OF ANY STATE TO
THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES OR IMMUNITIES SECURED OR
PROTECTED BY THE CONSTITUTION AND LAWS OF THE UNITED STATES "OR TO
DIFFERENT PUNISHMENTS, PAINS, OR PENALTIES, ON ACCOUNT OF SUCH
INHABITANT BEING AN ALIEN, OR BY REASON OF HIS COLOR, OR RACE, THAN ARE
PRESCRIBED FOR THE PUNISHMENT OF CITIZENS," SHALL BE PUNISHED AS
PRESCRIBED.  HELD: 

(1)  THE ACTS OF ELECTION OFFICIALS WHO CONDUCTED A PRIMARY ELECTION
TO NOMINATE A PARTY CANDIDATE FOR REPRESENTATIVE IN CONGRESS IN
WILLFULLY ALTERING AND FALSELY COUNTING AND CERTIFYING THE BALLOTS,
WERE ACTS UNDER COLOR OF STATE LAW DEPRIVING THE VOTER OF
CONSTITUTIONAL RIGHTS WITHIN THE MEANING OF THE SECTION.  P. 325. 

(2)  THE SECTION AUTHORIZES PUNISHMENT FOR TWO DIFFERENT OFFENSES:
THE OFFENSE OF WILLFULLY SUBJECTING ANY INHABITANT TO THE DEPRIVATION
OF RIGHTS SECURED BY THE CONSTITUTION, AND THE OFFENSE OF WILLFULLY
SUBJECTING ANY INHABITANT TO DIFFERENT PUNISHMENTS ON ACCOUNT OF HIS
ALIENAGE, COLOR OR RACE, THAN ARE PRESCRIBED FOR THE PUNISHMENT OF
CITIZENS.  P. 327. 

10.  THE COURT DECLINES TO CONSIDER THE APPLICATION OF SEC. 20 TO
DEPRIVATIONS OF THE RIGHT TO EQUAL PROTECTION OF THE LAWS GUARANTEED BY
THE FOURTEENTH AMENDMENT, A POINT APPARENTLY RAISED FOR THE FIRST TIME
BY THE GOVERNMENT'S BRIEF IN THIS COURT AND NOT ASSIGNED AS ERROR. 
SINCE THE INDICTMENT ON ITS FACE DOES NOT PURPORT TO CHARGE A
DEPRIVATION OF EQUAL PROTECTION TO VOTERS OR CANDIDATES, THE COURT IS
NOT CALLED UPON TO CONSTRUE THE INDICTMENT IN ORDER TO RAISE A QUESTION
OF STATUTORY VALIDITY OR CONSTRUCTION.  P. 329. 

UNITED STATES V. CLASSIC ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF LOUISIANA. 

APPEAL FROM AN ORDER OF THE DISTRICT COURT SUSTAINING A DEMURRER TO
TWO COUNTS OF AN INDICTMENT. 

THE RIGHT TO CHOOSE MEMBERS OF CONGRESS IS SECURED AND PROTECTED BY
SEC. 2 OF ART. I OF THE CONSTITUTION, AGAINST INTERFERENCE BY PRIVATE
INDIVIDUALS, AS WELL AS AGAINST INTERFERENCE BY ACTION OF THE STATES. 
CONGRESS MAY PROTECT THE RIGHTS BY PROVIDING FOR THE PUNISHMENT OF BOTH
TYPES OF INTERFERENCE AND HAS DONE SO BY SECS. 19 AND 20 OF THE
CRIMINAL CODE. 

AS A MATTER OF LAW, THE LOUISIANA PRIMARY ELECTIONS DETERMINE THE
CANDIDATES AT THE GENERAL ELECTION.  AS A MATTER OF UNBROKEN PRACTICE,
THE DEMOCRATIC PRIMARY ELECTION DETERMINES THE VICTOR AT THE GENERAL
ELECTION.  EITHER OF THESE CONSIDERATIONS DEMONSTRATES THAT THE RIGHT
TO CHOOSE REPRESENTATIVES, SECURED BY SEC. 2 OF ART. I, REACHES TO THE
LOUISIANA PRIMARY. 

IF THE MACHINERY OF CHOICE INVOLVES TWO ELECTIONS, PRIMARY AND
GENERAL, RATHER THAN ONE, THE RIGHT TO PARTICIPATE IN THE CHOICE MUST
INCLUDE BOTH STEPS. 

ART. I, SEC. 2 APPLIES TO THE DECISIVE PHASE OF THE PROCESS BY WHICH
REPRESENTATIVES ARE CHOSEN.  CF., UNITED STATES V. WOOD, 299 U.S. 123,
143.  THE FRAMERS MAY NOT HAVE ANTICIPATED THE PRIMARY, BUT THEY GAVE
TO THE QUALIFIED ELECTORS OF THE STATES THE RIGHT TO CHOOSE THEIR
REPRESENTATIVES IN CONGRESS. 

THE CHIEF SOURCE OF SERIOUS DISAGREEMENT AT THE CONSTITUTIONAL
CONVENTION, SO FAR AS THE SUFFRAGE WAS CONCERNED, HAD TO DO WITH THE
QUALIFICATIONS OF VOTERS.  UNITED STATES DOCUMENTS ILLUSTRATIVE OF THE
UNION OF THE AMERICAN STATES (1927) 487, 488, 489, 492.  IT WAS TO
AVOID ANY OBSTACLES TO RATIFICATION WHICH MIGHT HAVE ARISEN FROM THIS
CONTROVERSY THAT THE CONVENTION ACCEPTED THE COMPROMISE EMBODIED IN
ARTICLE I, SEC. 2.  STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES (BIGELOW, 5TH ED. 1891), SEC. 584.  IN THE STATE
RATIFYING CONVENTIONS THE DEBATE SHIFTED TO THE GRANT OF CONGRESSIONAL
POWER TO REGULATE NATIONAL ELECTIONS WHICH IS CONTAINED IN ARTICLE I,
SEC. 4.  IT IS TRUE THAT SIX STATES INCLUDED IN THEIR RESOLUTIONS OF
RATIFICATION THE RECOMMENDATION THAT A CONSTITUTIONAL AMENDMENT BE
ADOPTED TO DENY CONGRESSIONAL AUTHORITY TO REGULATE ELECTIONS UNLESS
THE STATES SHOULD REFUSE TO PROVIDE FOR THEM OR SHOULD BE UNABLE TO DO
SO BECAUSE OF INVASION OR FOR ANY OTHER REASON.  BUT NO SUCH AMENDMENT
WAS EVER ADOPTED, AND ANY LINGERING DOUBT AS TO THE UNCONDITIONAL POWER
OF CONGRESS TO REGULATE THE CONDUCT OF NATIONAL ELECTIONS WAS REMOVED
IN EX PARTE SIEBOLD, 100 U.S. 371.  CLEARLY NEITHER OF THESE DISPUTES
IS RELEVANT TO THE NATURE AND BOUNDS OF THE CONSTITUTIONALLY PROTECTED
RIGHT TO CHOOSE.  INDEED, THE WORD "ELECTED" IN A DRAFT OF THE PROPOSAL
WHICH BECAME ART. I, SEC. 2, WAS ELIMINATED BY THE COMMITTEE OF DETAIL
IN FAVOR OF THE SEEMINGLY BROADER WORD "CHOSEN."  DISTINGUISHING UNITED
STATES V. GRADWELL, 243 U.S. 476; NEWBERRY V. UNITED STATES, 256 U.S.
232; AND GROVEY V. TOWNSEND, 295 U.S. 45. 

CONGRESSIONAL PRACTICE HAS WEIGHT IN DETERMINING THE MEANING OF
CONSTITUTIONAL PROVISIONS.  BUT IT IS ESPECIALLY SIGNIFICANT WHERE THE
PRACTICE INVOLVES A CONGRESSIONAL INTERPRETATION OF THE CONSTITUTION IN
A FIELD IN WHICH CONGRESS HAS AN AUTONOMOUS POWER.  CF., SMILEY V.
HOLM, 285 U.S. 355, 369. 

VOTERS IN A PRIMARY ELECTION ARE DENIED THE EQUAL PROTECTION OF THE
LAWS BY STATE OFFICERS WHO REFUSE TO COUNT THEIR VOTES AS CAST AND
COUNT THEM IN FAVOR OF AN OPPOSING CANDIDATE.  IT IS OF NO CONSEQUENCE
THAT THE INDICTMENT DOES NOT COUNT IN TERMS UPON THE FOURTEENTH
AMENDMENT AND THE RIGHT OF THE VOTERS TO EQUAL PROTECTION OF THE LAWS. 
THE CHARGE IS LAID IN THE LANGUAGE OF THE STATUTE AND SPECIFIES AS THE
RIGHT "SECURED" AND "PROTECTED" BY THE CONSTITUTION THE RIGHT OF THE
VOTERS WHOSE BALLOTS WERE ALTERED TO HAVE THEIR VOTES COUNTED AS CAST. 
IF THE INFRINGEMENT OF THAT RIGHT BY THE ALLEGED ACTS OF THE DEFENDANTS
CONSTITUTES A DENIAL OF EQUAL PROTECTION, THE DISTRICT COURT ERRED IN
HOLDING THAT THE RIGHT IS NOT "SECURED" AND "PROTECTED" BY THE
CONSTITUTION OF THE UNITED STATES. 

THE ACTS ALLEGED IN THE INDICTMENT. 

IT IS NO MORE MATERIAL THAT PRIMARY ELECTIONS WERE UNKNOWN WHEN THE
STATUTE WAS PASSED THAN IT WOULD BE THAT A CITY ORDINANCE WHICH WORKED
A DEPRIVATION OF FEDERAL RIGHTS WAS ENACTED AFTER 1870 OR, INDEED, THAT
THE CITY WHICH ENACTED THE ORDINANCE WAS NOT ESTABLISHED UNTIL AFTER
THAT TIME.  NOR IS THERE SIGNIFICANCE IN THE FACT THAT IN 1894 CONGRESS
REPEALED THE COMPANION PROVISIONS OF THE STATUTE DEALING WITH SPECIFIC
IRREGULARITIES IN ELECTIONS.  UNITED STATES V. MOSLEY, 238 U.S. 383. 

NOTHING IN THE ENABLING CLAUSE OF THE FOURTEENTH AMENDMENT SUGGESTS
THAT LEGISLATION IS NOT "APPROPRIATE" TO ENFORCE THE AMENDMENT IF IT
DEALS NOT ONLY WITH RIGHTS GUARANTEED BY THE AMENDMENT AGAINST STATE
ACTION BUT ALSO WITH RIGHTS PROTECTED BY OTHER CONSTITUTIONAL
PROVISIONS AGAINST INDIVIDUAL ACTION AS WELL.  KAREM V. UNITED STATES,
121 F. 250; CF., UNITED STATES V. REESE, 92 U.S. 214; FLACK, THE
ADOPTION OF THE FOURTEENTH AMENDMENT, 1908, 219 ET SEQ.; GUINN V.
UNITED STATES, 238 U.S. 347, 368. 

THE DISTRICT JUDGE CORRECTLY SUSTAINED THE DEMURRER.  SECTION 19 DOES
NOT APPLY TO THE AFFAIRS OF A POLITICAL PARTY IN CONDUCTING A PARTY
PRIMARY.  NOR COULD IT APPLY TO THE PURELY PRIVATE POLITICAL RIGHTS OF
A CANDIDATE TO A VOTE CAST BY A CITIZEN.  THE RIGHT TO VOTE AND TO HAVE
THE VOTE COUNTED AS CAST BELONGS TO THE CITIZEN, NOT TO THE CANDIDATE. 
UNITED STATES V. MOSLEY, 238 U.S. 383. 

THE COMMISSIONERS ARE NOT OFFICERS OR EMPLOYEES OF THE STATE.  THEY
ARE OFFICERS OF A POLITICAL PARTY.  THEY ACT FOR AND ON BEHALF OF THE
POLITICAL PARTY, AND NOT FOR AND ON BEHALF OF THE STATE, AND THEREFORE
DO NOT ACT UNDER COLOR OF ANY LAW OF THE STATE.  THE CANDIDATES ALONE
HAVE THE RIGHT TO NAME THEM. 

THE FACT THAT A POLITICAL PARTY, AND ITS NOMINATING PRIMARY, IS
REGULATED BY STATE LAW, DOES NOT MAKE IT A CREATURE OF THE STATE, NOR
DOES IT MAKE THE PARTY'S OFFICIALS, OFFICERS OR EMPLOYEES OF THE
STATE. 

PRIMARIES ARE IN NO SENSE ELECTIONS FOR AN OFFICE, BUT MERELY METHODS
BY WHICH PARTY ADHERENTS AGREE UPON CANDIDATES WHOM THEY INTEND TO
OFFER TO SUPPORT FOR ULTIMATE CHOICE BY ALL QUALIFIED ELECTORS. 
GENERAL PROVISIONS AFFECTING ELECTIONS IN CONSTITUTIONS OR STATUTES ARE
NOT NECESSARILY APPLICABLE TO PRIMARIES,  - THE TWO THINGS BEING
RADICALLY DIFFERENT.  NEWBERRY V. UNITED STATES, 256 U.S. 232; UNITED
STATES V. GRADWELL, 243 U.S. 476; GROVEY V. TOWNSEND, 295 U.S. 45;
NIXON V. HERNDON, 273 U.S. 536; NIXON V. CONDON, 286 U.S. 73; UNITED
STATES V. O'TOOLE, 236 F. 993. 

THE STATE COURTS DIFFERENTIATE BETWEEN A NOMINATING PRIMARY AND AN
ELECTION.  THEY HAVE HELD THAT PRIMARY ELECTIONS TO CHOOSE DELEGATES TO
CONVENTIONS ARE NOT WITHIN CONSTITUTIONAL OR STATUTORY REQUIREMENTS IN
REGARD TO ELECTIONS; THAT PRIMARY ELECTIONS ARE NOT A PART OF THE
GENERAL ELECTION BECAUSE HELD AT THE SAME TIME AS THE LATTER, WITH THE
SAME MACHINERY, MERELY FOR CONVENIENCE AND ECONOMY; THAT PRIMARIES ARE
NOT ELECTIONS WITHIN THE COMMON LAW MEANING OF THE TERM; THAT LAWS
PROVIDING FOR THE DETERMINATION OF CONTESTED ELECTIONS DO NOT APPLY TO
PRIMARY ELECTIONS; THAT A STATUTE MAKING IT A MISDEMEANOR TO PLACE ANY
BET OR WAGER ON ANY ELECTION DOES NOT APPLY TO PRIMARIES; THAT A
STATUTE DISQUALIFYING A PERSON FROM HOLDING OFFICE WHEN HE SHALL HAVE
GIVEN A BRIBE, THREAT OR REWARD TO SECURE HIS ELECTION DOES NOT APPLY
TO PRIMARIES; AND THAT IT IS NOT AN OFFENSE FOR OFFICIALS AT PRIMARIES
TO ELECTIONEER, WHEN THE GENERAL ELECTION LAWS FORBID IT. 

IF THE WORD "ELECTIONS" IS HELD TO INCLUDE THE MANNER BY WHICH A
VOLUNTARY ASSOCIATION OR POLITICAL PARTY SELECTS ITS CANDIDATES BY
DIRECT PRIMARY (A CONCEPT UNKNOWN BY THE FRAMERS OF THE CONSTITUTION),
THEN CONGRESS MAY PASS LAWS TO REGULATE THE INTERNAL AFFAIRS OF
POLITICAL PARTIES, AND DICTATE THE TIME, PLACE AND MANNER OF THEIR
SELECTION OR NOMINATION OF THE CANDIDATE THEY WILL SUPPORT IN THE
ENSUING GENERAL ELECTION, OR MAY PROHIBIT THE HOLDING OF PRIMARIES
ALTOGETHER.  STATE V. SIMMONS, 117 ARK. 159. 

IN NIXON V. HERNDON, 273 U.S. 536, THE COURT DID NOT ADOPT THE THEORY
THAT EXCLUSION FROM A PRIMARY BY SPECIFIC STATE LAW WOULD CONSTITUTE A
DENIAL OF THE RIGHT TO VOTE WITHIN THE MEANING OF THE FIFTEENTH
AMENDMENT, BUT FOUND THE LAW UNCONSTITUTIONAL UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  SO IN NIXON V. CONDON,
286 U.S. 73. 

THE POWER CONFERRED UPON CONGRESS IN SEC. 4 OF ART. I IS A LIMITED
POWER.  IT WAS NOT INTENDED TO DEPRIVE THE PEOPLE OF THE STATES OF
THEIR FREEDOM WITH RESPECT TO THEIR POLITICAL ACTIVITIES. 

SINCE CONGRESS ASSERTED ITS POWER TO THE FULLEST EXTENT, IN THE
ENFORCEMENT ACT OF 1870, THE LIMITATION UPON ITS POWER IS ILLUSTRATED
BY A CONSIDERATION OF THE HISTORY OF THOSE BILLS IN UNITED STATES V.
GRADWELL, 243 U.S. 476, 482-484. 

THE CONSTITUTION GIVES TO CONGRESS NO POWER TO REGULATE THE PROCESS
OF NOMINATION.  UNITED STATES V. GRADWELL, 243 U.S. 476, 487-489;
UNITED STATES V. BLAIR, 250 U.S. 273, 278-279; UNITED STATES V.
O'TOOLE, 236 F. 993, 996. 

A NOMINATING PRIMARY IS NOT AN ELECTION ANY MORE THAN THE NOMINATING
CONVENTION, OR ITS PREDECESSOR THE CAUCUS, IS AN "ELECTION." 

WHAT THE TERM "ELECTIONS" MEANT AT THE TIME OF THE ADOPTION OF THE
ARTICLE IT MEANS NOW.  HAWKE V. SMITH, 253 U.S. 221. 

THE POWER EXERCISED MUST BE FOUND WITHIN THE DEFINITION OF THE POWER
CONFERRED.  SEE IN RE DEBS, 158 U.S. 564, 591. 

THE WORD "ELECTION" SHOULD BE RESTRICTED TO THE WELL-DEFINED MEANING
THAT IT HAD WHEN INCORPORATED INTO THE CONSTITUTION.  CF. THE HAWKE
CASE, SUPRA, CONCERNING THE WORD "LEGISLATURES." 

OTHER ARTICLES OF THE CONSTITUTION SHOW THAT THE TERM "ELECTIONS" HAS
EXCLUSIVE REFERENCE TO ELECTIONS FOR THE OFFICE ITSELF. 

THE OPPONENTS OF SEC. 4 OF ART. I WERE IN A MEASURE APPEASED BY THE
ASSURANCE GIVEN THEM TO THE EFFECT THAT THE CLAUSE WAS CONFINED TO THE
REGULATION OF THE TIMES, PLACES, AND MANNER OF HOLDING ELECTIONS. 
STORY ON THE CONSTITUTION, SECS. 815-828; THE FEDERALIST, LX. 

ALEXANDER HAMILTON COULD NEVER HAVE DEFENDED THE THEORY THAT THE
PEOPLE WERE SURRENDERING SUCH RIGHTS TO THE FEDERAL GOVERNMENT AS WOULD
AUTHORIZE SUPERVISING THE METHODS THAT SHOULD BE EMPLOYED TO ENLIST
SUPPORT OF A CANDIDACY. 

IF CONGRESS HAS THE POWER WHICH APPELLANT SEEKS TO ATTRIBUTE TO IT,
THEN IT HAS THE POWER TO ABOLISH ALL PRIMARY ELECTIONS FOR SENATORS AND
REPRESENTATIVES IN EVERY STATE IN THE UNION; THE POWER TO ESTABLISH
CONVENTIONS, TO OVERTHROW CONVENTIONS, TO PROVIDE ANY SORT OF A PRIMARY
THAT IT MAY DESIRE. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

TWO COUNTS OF AN INDICTMENT FOUND IN A FEDERAL DISTRICT COURT CHARGED
THAT APPELLEES, COMMISSIONERS OF ELECTIONS, CONDUCTING A PRIMARY
ELECTION UNDER LOUISIANA LAW, TO NOMINATE A CANDIDATE OF THE DEMOCRATIC
PARTY FOR REPRESENTATIVE IN CONGRESS, WILLFULLY ALTERED AND FALSELY
COUNTED AND CERTIFIED THE BALLOTS OF VOTERS CAST IN THE PRIMARY
ELECTION.  THE QUESTIONS FOR DECISION ARE WHETHER THE RIGHT OF
QUALIFIED VOTERS TO VOTE IN THE LOUISIANA PRIMARY AND TO HAVE THEIR
BALLOTS COUNTED IS A RIGHT "SECURED BY THE CONSTITUTION" WITHIN THE
MEANING OF SECS. 19 AND 20 OF THE CRIMINAL CODE, AND WHETHER THE ACTS
OF APPELLEES CHARGED IN THE INDICTMENT VIOLATE THOSE SECTIONS. 

ON SEPTEMBER 25, 1940, APPELLEES WERE INDICTED IN THE DISTRICT COURT
FOR EASTERN LOUISIANA FOR VIOLATIONS OF SECS. 19 AND 20 OF THE CRIMINAL
CODE, 18 U.S.C. SECS. 51, 52.  THE FIRST COUNT OF THE INDICTMENT
ALLEGED THAT A PRIMARY ELECTION WAS HELD ON SEPTEMBER 10, 1940, FOR THE
PURPOSE OF NOMINATING A CANDIDATE OF THE DEMOCRATIC PARTY FOR THE
OFFICE OF REPRESENTATIVE IN CONGRESS FOR THE SECOND CONGRESSIONAL
DISTRICT OF LOUISIANA, TO BE CHOSEN AT AN ELECTION TO BE HELD ON
NOVEMBER 10TH; THAT IN THAT DISTRICT NOMINATION AS A CANDIDATE OF THE
DEMOCRATIC PARTY IS AND ALWAYS HAS BEEN EQUIVALENT TO AN ELECTION; THAT
APPELLEES WERE COMMISSIONERS OF ELECTION, SELECTED IN ACCORDANCE WITH
THE LOUISIANA LAW TO CONDUCT THE PRIMARY IN THE SECOND PRECINCT OF THE
TENTH WARD OF NEW ORLEANS, IN WHICH THERE WERE FIVE HUNDRED AND THIRTY
SEVEN CITIZENS AND QUALIFIED VOTERS. 

THE CHARGE, BASED ON THESE ALLEGATIONS, WAS THAT THE APPELLEES
CONSPIRED WITH EACH OTHER, AND WITH OTHERS UNKNOWN, TO INJURE AND
OPPRESS CITIZENS IN THE FREE EXERCISE AND ENJOYMENT OF RIGHTS AND
PRIVILEGES SECURED TO THEM BY THE CONSTITUTION AND LAWS OF THE UNITED
STATES, NAMELY, (1) THE RIGHT OF QUALIFIED VOTERS WHO CAST THEIR
BALLOTS IN THE PRIMARY ELECTION TO HAVE THEIR BALLOTS COUNTED AS CAST
FOR THE CANDIDATE OF THEIR CHOICE, AND (2) THE RIGHT OF THE CANDIDATES
TO RUN FOR THE OFFICE OF CONGRESSMAN AND TO HAVE THE VOTES IN FAVOR OF
THEIR NOMINATION COUNTED AS CAST.  THE OVERT ACTS ALLEGED WERE THAT THE
APPELLEES ALTERED EIGHTY-THREE BALLOTS CAST FOR ONE CANDIDATE AND
FOURTEEN CAST FOR ANOTHER, MARKING AND COUNTING THEM AS VOTES FOR A
THIRD CANDIDATE, AND THAT THEY FALSELY CERTIFIED THE NUMBER OF VOTES
CAST FOR THE RESPECTIVE CANDIDATES TO THE CHAIRMAN OF THE SECOND
CONGRESSIONAL DISTRICT COMMITTEE.    THE SECOND COUNT, REPEATING THE
ALLEGATIONS OF FACT ALREADY DETAILED, CHARGED THAT THE APPELLEES, AS
COMMISSIONERS OF ELECTION, WILLFULLY AND UNDER COLOR OF LAW SUBJECTED
REGISTERED VOTERS AT THE PRIMARY WHO WERE INHABITANTS OF LOUISIANA TO
THE DEPRIVATION OF RIGHTS, PRIVILEGES AND IMMUNITIES SECURED AND
PROTECTED BY THE CONSTITUTION AND LAWS OF THE UNITED STATES, NAMELY
THEIR RIGHT TO CAST THEIR VOTES FOR THE CANDIDATES OF THEIR CHOICE AND
TO HAVE THEIR VOTES COUNTED AS CAST.  IT FURTHER CHARGED THAT THIS
DEPRIVATION WAS EFFECTED BY THE WILLFUL FAILURE AND REFUSAL OF
DEFENDANTS TO COUNT THE VOTES AS CAST, BY THEIR ALTERATION OF THE
BALLOTS, AND BY THEIR FALSE CERTIFICATION OF THE NUMBER OF VOTES CAST
FOR THE RESPECTIVE CANDIDATES IN THE MANNER ALREADY INDICATED. 

THE DISTRICT COURT SUSTAINED A DEMURRER TO COUNTS 1 AND 2 ON THE
GROUND THAT SECS. 19 AND 20 OF THE CRIMINAL CODE, UNDER WHICH THE
INDICTMENT WAS DRAWN, DO NOT APPLY TO THE STATE OF FACTS DISCLOSED BY
THE INDICTMENT, AND THAT, IF APPLIED TO THOSE FACTS, SECS. 19 AND 20
ARE WITHOUT CONSTITUTIONAL SANCTION, CITING UNITED STATES V. GRADWELL,
243 U.S. 476, 488, 489; NEWBERRY V. UNITED STATES, 256 U.S. 232.  THE
CASE COMES HERE ON DIRECT APPEAL FROM THE DISTRICT COURT UNDER THE
PROVISIONS OF THE CRIMINAL APPEALS ACT, JUDICIAL CODE, SEC. 238, 18
U.S.C. SEC. 682; 28 U.S.C. SEC. 345, WHICH AUTHORIZE AN APPEAL BY THE
UNITED STATES FROM A DECISION OR JUDGMENT SUSTAINING A DEMURRER TO AN
INDICTMENT WHERE THE DECISION OR JUDGMENT IS "BASED UPON THE INVALIDITY
OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT IS FOUNDED." 

UPON SUCH AN APPEAL OUR REVIEW IS CONFINED TO THE QUESTIONS OF
STATUTORY CONSTRUCTION AND VALIDITY DECIDED BY THE DISTRICT COURT. 
UNITED STATES V. PATTEN, 226 U.S. 525; UNITED STATES V. BIRDSALL, 233
U.S. 223, 230; UNITED STATES V. BORDEN CO., 308 U.S. 188, 192-193. 
HENCE, WE DO NOT PASS UPON VARIOUS ARGUMENTS ADVANCED BY APPELLEES AS
TO THE SUFFICIENCY AND CONSTRUCTION OF THE INDICTMENT. 

CONSPIRACY TO INJURE A CITIZEN IN THE EXERCISE "OF ANY RIGHT OR
PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES."  SECTION 20 MAKES IT A PENAL OFFENSE FOR ANYONE WHO, ACTING
"UNDER COLOR OF ANY LAW," "WILLFULLY SUBJECTS, OR CAUSES TO BE
SUBJECTED, ANY INHABITANT OF ANY STATE  ...  TO THE DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, AND IMMUNITIES SECURED AND PROTECTED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES."  THE GOVERNMENT ARGUES
THAT THE RIGHT OF A QUALIFIED VOTER IN A LOUISIANA CONGRESSIONAL
PRIMARY ELECTION TO HAVE HIS VOTE COUNTED AS CAST IS A RIGHT SECURED BY
ARTICLE I, SECS. 2 AND 4 OF THE CONSTITUTION, AND THAT A CONSPIRACY TO
DEPRIVE THE CITIZEN OF THAT RIGHT IS A VIOLATION OF SEC. 19, AND ALSO
THAT THE WILLFUL ACTION OF APPELLEES AS STATE OFFICIALS, IN FALSELY
COUNTING THE BALLOTS AT THE PRIMARY ELECTION AND IN FALSELY CERTIFYING
THE COUNT, DEPRIVED QUALIFIED VOTERS OF THAT RIGHT AND OF THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT, ALL IN
VIOLATION OF SEC. 20 OF THE CRIMINAL CODE. 

ARTICLE I, SEC. 2 OF THE CONSTITUTION, COMMANDS THAT "THE HOUSE OF
REPRESENTATIVES SHALL BE COMPOSED OF MEMBERS CHOSEN EVERY SECOND YEAR
BY THE PEOPLE OF THE SEVERAL STATES AND THE ELECTORS IN EACH STATE
SHALL HAVE THE QUALIFICATIONS REQUISITE FOR ELECTORS OF THE MOST
NUMEROUS BRANCH OF THE STATE LEGISLATURE."  BY SEC. 4 OF THE SAME
ARTICLE "THE TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR SENATORS
AND REPRESENTATIVES SHALL BE PRESCRIBED IN EACH STATE BY THE
LEGISLATURE THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR
ALTER SUCH REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING SENATORS." 
SUCH RIGHT AS IS SECURED BY THE CONSTITUTION TO QUALIFIED VOTERS TO
CHOOSE MEMBERS OF THE HOUSE OF REPRESENTATIVES IS THUS TO BE EXERCISED
IN CONFORMITY TO THE REQUIREMENTS OF STATE LAW SUBJECT TO THE
RESTRICTIONS PRESCRIBED BY SEC. 2 AND TO THE AUTHORITY CONFERRED ON
CONGRESS BY SEC. 4, TO REGULATE THE TIMES, PLACES AND MANNER OF HOLDING
ELECTIONS FOR REPRESENTATIVES. 

WE LOOK THEN TO THE STATUTES OF LOUISIANA HERE INVOLVED TO ASCERTAIN
THE NATURE OF THE RIGHT WHICH UNDER THE CONSTITUTIONAL MANDATE THEY
DEFINE AND CONFER ON THE VOTER, AND THE EFFECT UPON ITS EXERCISE OF THE
ACTS WITH WHICH APPELLEES ARE CHARGED, ALL WITH THE VIEW TO
DETERMINING, FIRST, WHETHER THE RIGHT OR PRIVILEGE IS ONE SECURED BY
THE CONSTITUTION OF THE UNITED STATES, SECOND, WHETHER THE EFFECT UNDER
THE STATE STATUTE OF APPELLEES' ALLEGED ACTS IS SUCH THAT THEY OPERATE
TO INJURE OR OPPRESS CITIZENS IN THE EXERCISE OF THAT RIGHT WITHIN THE
MEANING OF SEC. 19 AND TO DEPRIVE INHABITANTS OF THE STATE OF THAT
RIGHT WITHIN THE MEANING OF SEC. 20, AND FINALLY, WHETHER SECS. 19 AND
20 RESPECTIVELY ARE IN OTHER RESPECTS APPLICABLE TO THE ALLEGED ACTS OF
APPELLEES. 

PURSUANT TO THE AUTHORITY GIVEN BY SEC. 2 OF ARTICLE I OF THE
CONSTITUTION, AND SUBJECT TO THE LEGISLATIVE POWER OF CONGRESS UNDER
SEC. 4 OF ARTICLE I, AND OTHER PERTINENT PROVISIONS OF THE
CONSTITUTION, THE STATES ARE GIVEN, AND IN FACT EXERCISE, A WIDE
DISCRETION IN THE FORMULATION OF A SYSTEM FOR THE CHOICE BY THE PEOPLE
OF REPRESENTATIVES IN CONGRESS.  IN COMMON WITH MANY OTHER STATES,
LOUISIANA HAS EXERCISED THAT DISCRETION BY SETTING UP MACHINERY FOR THE
EFFECTIVE CHOICE OF PARTY CANDIDATES FOR REPRESENTATIVE IN CONGRESS BY
PRIMARY ELECTIONS, AND BY ITS LAWS IT ELIMINATES OR SERIOUSLY RESTRICTS
THE CANDIDACY AT THE GENERAL ELECTION OF ALL THOSE WHO ARE DEFEATED AT
THE PRIMARY.  ALL POLITICAL PARTIES, WHICH ARE DEFINED AS THOSE THAT
HAVE CAST AT LEAST 5 PER CENT OF THE TOTAL VOTE AT SPECIFIED PRECEDING
ELECTIONS, ARE REQUIRED TO NOMINATE THEIR CANDIDATES FOR REPRESENTATIVE
BY DIRECT PRIMARY ELECTIONS.  LOUISIANA ACT NO. 46, REGULAR SESSION,
1940, SECS. 1 AND 3. 

THE PRIMARY IS CONDUCTED BY THE STATE AT PUBLIC EXPENSE.  ACT NO. 46,
SUPRA, SEC. 35.  THE PRIMARY, AS IS THE GENERAL ELECTION, IS SUBJECT TO
NUMEROUS STATUTORY REGULATIONS AS TO THE TIME, PLACE AND MANNER OF
CONDUCTING THE ELECTION, INCLUDING PROVISIONS TO INSURE THAT THE
BALLOTS CAST AT THE PRIMARY ARE CORRECTLY COUNTED, AND THE RESULTS OF
THE COUNT CORRECTLY RECORDED AND CERTIFIED TO THE SECRETARY OF STATE,
WHOSE DUTY IT IS TO PLACE THE NAMES OF THE SUCCESSFUL CANDIDATES OF
EACH PARTY ON THE OFFICIAL BALLOT.  FN1  THE SECRETARY OF STATE IS
PROHIBITED FROM PLACING ON THE OFFICIAL BALLOT THE NAME OF ANY PERSON
AS A CANDIDATE FOR ANY POLITICAL PARTY NOT NOMINATED IN ACCORDANCE WITH
THE PROVISIONS OF THE ACT.  ACT 46, SEC. 1. 

ONE WHOSE NAME DOES NOT APPEAR ON THE PRIMARY BALLOT, IF OTHERWISE
ELIGIBLE TO BECOME A CANDIDATE AT THE GENERAL ELECTION, MAY DO SO IN
EITHER OF TWO WAYS:  BY FILING NOMINATION PAPERS WITH THE REQUISITE
NUMBER OF SIGNATURES OR BY HAVING HIS NAME "WRITTEN IN" ON THE BALLOT
ON THE FINAL ELECTION.  LOUISIANA ACT NO. 224, REGULAR SESSION 1940,
SECS. 50, 73.  SECTION 87 OF ACT NO. 46 PROVIDES "NO ONE WHO
PARTICIPATES IN THE PRIMARY ELECTION OF ANY POLITICAL PARTY SHALL HAVE
THE RIGHT TO PARTICIPATE IN A PRIMARY ELECTION OF ANY OTHER POLITICAL
PARTY, WITH THE VIEW OF NOMINATING OPPOSING CANDIDATES, NOR SHALL HE BE
PERMITTED TO SIGN ANY NOMINATION FOR ANY OPPOSING CANDIDATE OR
CANDIDATES; NOR SHALL HE BE PERMITTED TO BE HIMSELF A CANDIDATE IN
OPPOSITION TO ANYONE NOMINATED AT OR THROUGH A PRIMARY ELECTION IN
WHICH HE TOOK PART." 

AMENDED BY ACT 80 OF 1934, PROVIDES THAT "NO PERSON WHOSE NAME IS NOT
AUTHORIZED TO BE PRINTED ON THE OFFICIAL BALLOT, AS THE NOMINEE OF A
POLITICAL PARTY OR AS AN INDEPENDENT CANDIDATE, SHALL BE CONSIDERED A
CANDIDATE" UNLESS HE SHALL FILE IN THE APPROPRIATE OFFICE AT LEAST TEN
DAYS BEFORE THE GENERAL ELECTION A STATEMENT CONTAINING THE CORRECT
NAME UNDER WHICH HE IS TO BE VOTED FOR, AND CONTAINING THE FURTHER
STATEMENT THAT HE IS WILLING AND CONSENTS TO BE VOTED FOR FOR THAT
OFFICE.  THE ARTICLE ALSO PROVIDES THAT "NO COMMISSIONERS OF ELECTION
SHALL COUNT A BALLOT AS CAST FOR ANY PERSON WHOSE NAME IS NOT PRINTED
ON THE BALLOT OR WHO DOES NOT BECOME A CANDIDATE IN THE FOREGOING
MANNER."  APPLYING THESE PROVISIONS, THE LOUISIANA COURT OF APPEALS FOR
THE PARISH OF ORLEANS HAS HELD, IN SERPAS V. TREBUCQ, DECIDED APRIL 7,
1941, 1 SO.2D 346, REHEARING DENIED WITH OPINION APRIL 21, 1941, 1
SO.2D 705, THAT AN UNSUCCESSFUL CANDIDATE AT THE PRIMARY MAY NOT OFFER
HIMSELF AS A CANDIDATE AT A GENERAL ELECTION, AND THAT VOTES FOR HIM
MAY NOT LAWFULLY BE WRITTEN INTO THE BALLOT OR COUNTED AT SUCH AN
ELECTION. 

THE RIGHT TO VOTE FOR A REPRESENTATIVE IN CONGRESS AT THE GENERAL
ELECTION IS, AS A MATTER OF LAW, THUS RESTRICTED TO THE SUCCESSFUL
PARTY CANDIDATE AT THE PRIMARY, TO THOSE NOT CANDIDATES AT THE PRIMARY
WHO FILE NOMINATION PAPERS, AND THOSE WHOSE NAMES MAY BE LAWFULLY
WRITTEN INTO THE BALLOT BY THE ELECTORS.  EVEN IF, AS APPELLEES ARGUE,
CONTRARY TO THE DECISION IN SERPAS V. TREBUCQ, SUPRA, VOTERS MAY
LAWFULLY WRITE INTO THEIR BALLOTS, CAST AT THE GENERAL ELECTION, THE
NAME OF A CANDIDATE REJECTED AT THE PRIMARY AND HAVE THEIR BALLOTS
COUNTED, THE PRACTICAL OPERATION OF THE PRIMARY LAW IN OTHERWISE
EXCLUDING FROM THE BALLOT ON THE GENERAL ELECTION THE NAMES OF
CANDIDATES REJECTED AT THE PRIMARY IS SUCH AS TO IMPOSE SERIOUS
RESTRICTIONS UPON THE CHOICE OF CANDIDATES BY THE VOTERS SAVE BY VOTING
AT THE PRIMARY ELECTION.  IN FACT, AS ALLEGED IN THE INDICTMENT, THE
PRACTICAL OPERATION OF THE PRIMARY IN LOUISIANA IS, AND HAS BEEN SINCE
THE PRIMARY ELECTION WAS ESTABLISHED IN 1900, TO SECURE THE ELECTION OF
THE DEMOCRATIC PRIMARY NOMINEE FOR THE SECOND CONGRESSIONAL DISTRICT OF
LOUISIANA N2. 

INTERFERENCE WITH THE RIGHT TO VOTE IN THE CONGRESSIONAL PRIMARY IN
THE SECOND CONGRESSIONAL DISTRICT FOR THE CHOICE OF DEMOCRATIC
CANDIDATE FOR CONGRESS IS THUS, AS A MATTER OF LAW AND IN FACT, AN
INTERFERENCE WITH THE EFFECTIVE CHOICE OF THE VOTERS AT THE ONLY STAGE
OF THE ELECTION PROCEDURE WHEN THEIR CHOICE IS OF SIGNIFICANCE, SINCE
IT IS AT THE ONLY STAGE WHEN SUCH INTERFERENCE COULD HAVE ANY PRACTICAL
EFFECT ON THE ULTIMATE RESULT, THE CHOICE OF THE CONGRESSMAN TO
REPRESENT THE DISTRICT.  THE PRIMARY IN LOUISIANA IS AN INTEGRAL PART
OF THE PROCEDURE FOR THE POPULAR CHOICE OF CONGRESSMAN.  THE RIGHT OF
QUALIFIED VOTERS TO VOTE AT THE CONGRESSIONAL PRIMARY IN LOUISIANA AND
TO HAVE THEIR BALLOTS COUNTED IS THUS THE RIGHT TO PARTICIPATE IN THAT
CHOICE. 

WE COME THEN TO THE QUESTION WHETHER THAT RIGHT IS ONE SECURED BY THE
CONSTITUTION.  SECTION 2 OF ARTICLE I COMMANDS THAT CONGRESSMEN SHALL
BE CHOSEN BY THE PEOPLE OF THE SEVERAL STATES BY ELECTORS, THE
QUALIFICATIONS OF WHICH IT PRESCRIBES.  THE RIGHT OF THE PEOPLE TO
CHOOSE, WHATEVER ITS APPROPRIATE CONSTITUTIONAL LIMITATIONS, WHERE IN
OTHER RESPECTS IT IS DEFINED, AND THE MODE OF ITS EXERCISE IS
PRESCRIBED BY STATE ACTION IN CONFORMITY TO THE CONSTITUTION, IS A
RIGHT ESTABLISHED AND GUARANTEED BY THE CONSTITUTION AND HENCE IS ONE
SECURED BY IT TO THOSE CITIZENS AND INHABITANTS OF THE STATE ENTITLED
TO EXERCISE THE RIGHT.  EX PARTE YARBROUGH, 110 U.S. 651; UNITED STATES
V. MOSLEY, 238 U.S. 383.  AND SEE HAGUE V. C.I.O., 307 U.S. 496, 508,
513, 526, 527, 529, GIVING THE SAME INTERPRETATION TO THE LIKE PHRASE
"RIGHTS" "SECURED BY THE CONSTITUTION" APPEARING IN SEC. 1 OF THE CIVIL
RIGHTS ACT OF 1871, 17 STAT. 13.  WHILE, IN A LOOSE SENSE, THE RIGHT TO
VOTE FOR REPRESENTATIVES IN CONGRESS IS SOMETIMES SPOKEN OF AS A RIGHT
DERIVED FROM THE STATES, SEE MINOR V. HAPPERSETT, 21 WALL.  162, 170;
UNITED STATES V. REESE, 92 U.S. 214, 217-218; MCPHERSON V. BLACKER, 146
U.S. 1, 38-39; BREEDLOVE V. SUTTLES, 302 U.S. 277, 283, THIS STATEMENT
IS TRUE ONLY IN THE SENSE THAT THE STATES ARE AUTHORIZED BY THE
CONSTITUTION, TO LEGISLATE ON THE SUBJECT AS PROVIDED BY SEC. 2 OF ART.
I, TO THE EXTENT THAT CONGRESS HAS NOT RESTRICTED STATE ACTION BY THE
EXERCISE OF ITS POWERS TO REGULATE ELECTIONS UNDER SEC. 4 AND ITS MORE
GENERAL POWER UNDER ARTICLE I, SEC. 8, CLAUSE 18 OF THE CONSTITUTION
"TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO
EXECUTION THE FOREGOING POWERS."  SEE EX PARTE SIEBOLD, 100 U.S. 371;
EX PARTE YARBROUGH, SUPRA, 663, 664; SWAFFORD V. TEMPLETON, 185 U.S.
487; WILEY V. SINKLER, 179 U.S. 58, 64. 

OBVIOUSLY INCLUDED WITHIN THE RIGHT TO CHOOSE, SECURED BY THE
CONSTITUTION, IS THE RIGHT OF QUALIFIED VOTERS WITHIN A STATE TO CAST
THEIR BALLOTS AND HAVE THEM COUNTED AT CONGRESSIONAL ELECTIONS.  THIS
COURT HAS CONSISTENTLY HELD THAT THIS IS A RIGHT SECURED BY THE
CONSTITUTION.  EX PARTE YARBROUGH, SUPRA; WILEY V. SINKLER, SUPRA;
SWAFFORD V. TEMPLETON, SUPRA; UNITED STATES V. MOSLEY, SUPRA; SEE EX
PARTE SIEBOLD, SUPRA; IN RE COY, 127 U.S. 731; LOGAN V. UNITED STATES,
144 U.S. 263.  AND SINCE THE CONSTITUTIONAL COMMAND IS WITHOUT
RESTRICTION OR LIMITATION, THE RIGHT, UNLIKE THOSE GUARANTEED BY THE
FOURTEENTH AND FIFTEENTH AMENDMENTS, IS SECURED AGAINST THE ACTION OF
INDIVIDUALS AS WELL AS OF STATES.  EX PARTE YARBROUGH, SUPRA; LOGAN V.
UNITED STATES, SUPRA. 

BUT WE ARE NOW CONCERNED WITH THE QUESTION WHETHER THE RIGHT TO
CHOOSE AT A PRIMARY ELECTION, A CANDIDATE FOR ELECTION AS
REPRESENTATIVE, IS EMBRACED IN THE RIGHT TO CHOOSE REPRESENTATIVES
SECURED BY ARTICLE I, SEC. 2.  WE MAY ASSUME THAT THE FRAMERS OF THE
CONSTITUTION IN ADOPTING THAT SECTION, DID NOT HAVE SPECIFICALLY IN
MIND THE SELECTION AND ELIMINATION OF CANDIDATES FOR CONGRESS BY THE
DIRECT PRIMARY ANY MORE THAN THEY CONTEMPLATED THE APPLICATION OF THE
COMMERCE CLAUSE TO INTERSTATE TELEPHONE, TELEGRAPH AND WIRELESS
COMMUNICATION, WHICH ARE CONCEDEDLY WITHIN IT.  BUT IN DETERMINING
WHETHER A PROVISION OF THE CONSTITUTION APPLIES TO A NEW SUBJECT
MATTER, IT IS OF LITTLE SIGNIFICANCE THAT IT IS ONE WITH WHICH THE
FRAMERS WERE NOT FAMILIAR.  FOR IN SETTING UP AN ENDURING FRAMEWORK OF
GOVERNMENT THEY UNDERTOOK TO CARRY OUT FOR THE INDEFINITE FUTURE AND IN
ALL THE VICISSITUDES OF THE CHANGING AFFAIRS OF MEN, THOSE FUNDAMENTAL
PURPOSES WHICH THE INSTRUMENT ITSELF DISCLOSES.  HENCE WE READ ITS
WORDS, NOT AS WE READ LEGISLATIVE CODES WHICH ARE SUBJECT TO CONTINUOUS
REVISION WITH THE CHANGING COURSE OF EVENTS, BUT AS THE REVELATION OF
THE GREAT PURPOSES WHICH WERE INTENDED TO BE ACHIEVED BY THE
CONSTITUTION AS A CONTINUING INSTRUMENT OF GOVERNMENT.  CF. DAVIDSON V.
NEW ORLEANS, 96 U.S. 97; BROWN V. WALKER, 161 U.S. 591, 595; ROBERTSON
V. BALDWIN, 165 U.S. 275, 281, 282.  IF WE REMEMBER THAT "IT IS A
CONSTITUTION WE ARE EXPOUNDING," WE CANNOT RIGHTLY PREFER, OF THE
POSSIBLE MEANINGS OF ITS WORDS, THAT WHICH WILL DEFEAT RATHER THAN
EFFECTUATE THE CONSTITUTIONAL PURPOSE. 

THAT THE FREE CHOICE BY THE PEOPLE OF REPRESENTATIVES IN CONGRESS,
SUBJECT ONLY TO THE RESTRICTIONS TO BE FOUND IN SECS. 2 AND 4 OF
ARTICLE I AND ELSEWHERE IN THE CONSTITUTION, WAS ONE OF THE GREAT
PURPOSES OF OUR CONSTITUTIONAL SCHEME OF GOVERNMENT CANNOT BE DOUBTED. 
WE CANNOT REGARD IT AS ANY THE LESS THE CONSTITUTIONAL PURPOSE, OR ITS
WORDS AS ANY THE LESS GUARANTYING THE INTEGRITY OF THAT CHOICE, WHEN A
STATE, EXERCISING ITS PRIVILEGE IN THE ABSENCE OF CONGRESSIONAL ACTION,
CHANGES THE MODE OF CHOICE FROM A SINGLE STEP, A GENERAL ELECTION, TO
TWO, OF WHICH THE FIRST IS THE CHOICE AT A PRIMARY OF THOSE CANDIDATES
FROM WHOM, AS A SECOND STEP, THE REPRESENTATIVE IN CONGRESS IS TO BE
CHOSEN AT THE ELECTION. 

NOR CAN WE SAY THAT THAT CHOICE WHICH THE CONSTITUTION PROTECTS IS
RESTRICTED TO THE SECOND STEP BECAUSE SEC. 4 OF ARTICLE I, AS A MEANS
OF SECURING A FREE CHOICE OF REPRESENTATIVES BY THE PEOPLE, HAS
AUTHORIZED CONGRESS TO REGULATE THE MANNER OF ELECTIONS, WITHOUT MAKING
ANY MENTION OF PRIMARY ELECTIONS.  FOR WE THINK THAT THE AUTHORITY OF
CONGRESS, GIVEN BY SEC. 4, INCLUDES THE AUTHORITY TO REGULATE PRIMARY
ELECTIONS WHEN, AS IN THIS CASE, THEY ARE A STEP IN THE EXERCISE BY THE
PEOPLE OF THEIR CHOICE OF REPRESENTATIVES IN CONGRESS.  THE POINT
WHETHER THE POWER CONFERRED BY SEC. 4 INCLUDES IN ANY CIRCUMSTANCES THE
POWER TO REGULATE PRIMARY ELECTIONS WAS RESERVED IN UNITED STATES V.
GRADWELL, SUPRA, 487.  IN NEWBERRY V. UNITED STATES, SUPRA, FOUR
JUSTICES OF THIS COURT WERE OF OPINION THAT THE TERM "ELECTIONS" IN
SEC. 4 OF ARTICLE I DID NOT EMBRACE A PRIMARY ELECTION, SINCE THAT
PROCEDURE WAS UNKNOWN TO THE FRAMERS.  A FIFTH JUSTICE, WHO WITH THEM
PRONOUNCED THE JUDGMENT OF THE COURT, WAS OF OPINION THAT A PRIMARY,
HELD UNDER A LAW ENACTED BEFORE THE ADOPTION OF THE SEVENTEENTH
AMENDMENT, FOR THE NOMINATION OF CANDIDATES FOR SENATOR, WAS NOT AN
ELECTION WITHIN THE MEANING OF SEC. 4 OF ARTICLE I OF THE CONSTITUTION,
PRESUMABLY BECAUSE THE CHOICE OF THE PRIMARY IMPOSED NO LEGAL
RESTRICTIONS ON THE ELECTION OF SENATORS BY THE STATE LEGISLATURES TO
WHICH THEIR ELECTION HAD BEEN COMMITTED BY ARTICLE I, SEC. 3.  THE
REMAINING FOUR JUSTICES WERE OF THE OPINION THAT A PRIMARY ELECTION FOR
THE CHOICE OF CANDIDATES FOR SENATOR OR REPRESENTATIVE WERE ELECTIONS
SUBJECT TO REGULATION BY CONGRESS WITHIN THE MEANING OF SEC. 4 OF
ARTICLE I. THE QUESTION THEN HAS NOT BEEN PREJUDGED BY ANY DECISION OF
THIS COURT. 

TO DECIDE IT WE TURN TO THE WORDS OF THE CONSTITUTION READ IN THEIR
HISTORICAL SETTING AS REVEALING THE PURPOSE OF ITS FRAMERS, AND SEARCH
FOR ADMISSIBLE MEANINGS OF ITS WORDS WHICH, IN THE CIRCUMSTANCES OF
THEIR APPLICATION, WILL EFFECTUATE THOSE PURPOSES.  AS WE HAVE SAID, A
DOMINANT PURPOSE OF SEC. 2, SO FAR AS THE SELECTION OF REPRESENTATIVES
IN CONGRESS IS CONCERNED, WAS TO SECURE TO THE PEOPLE THE RIGHT TO
CHOOSE REPRESENTATIVES BY THE DESIGNATED ELECTORS, THAT IS TO SAY, BY
SOME FORM OF ELECTION.  CF. THE SEVENTEENTH AMENDMENT AS TO POPULAR
"ELECTION" OF SENATORS.  FROM TIME IMMEMORIAL AN ELECTION TO PUBLIC
OFFICE HAS BEEN IN POINT OF SUBSTANCE NO MORE AND NO LESS THAN THE
EXPRESSION BY QUALIFIED ELECTORS OF THEIR CHOICE OF CANDIDATES. 

LONG BEFORE THE ADOPTION OF THE CONSTITUTION THE FORM AND MODE OF
THAT EXPRESSION HAD CHANGED FROM TIME TO TIME.  THERE IS NO HISTORICAL
WARRANT FOR SUPPOSING THAT THE FRAMERS WERE UNDER THE ILLUSION THAT THE
METHOD OF EFFECTING THE CHOICE OF THE ELECTORS WOULD NEVER CHANGE OR
THAT, IF IT DID, THE CHANGE WAS FOR THAT REASON TO BE PERMITTED TO
DEFEAT THE RIGHT OF THE PEOPLE TO CHOOSE REPRESENTATIVES FOR CONGRESS
WHICH THE CONSTITUTION HAD GUARANTEED.  THE RIGHT TO PARTICIPATE IN THE
CHOICE OF REPRESENTATIVES FOR CONGRESS INCLUDES, AS WE HAVE SAID, THE
RIGHT TO CAST A BALLOT AND TO HAVE IT COUNTED AT THE GENERAL ELECTION,
WHETHER FOR THE SUCCESSFUL CANDIDATE OR NOT.  WHERE THE STATE LAW HAS
MADE THE PRIMARY AN INTEGRAL PART OF THE PROCEDURE OF CHOICE, OR WHERE
IN FACT THE PRIMARY EFFECTIVELY CONTROLS THE CHOICE, THE RIGHT OF THE
ELECTOR TO HAVE HIS BALLOT COUNTED AT THE PRIMARY IS LIKEWISE INCLUDED
IN THE RIGHT PROTECTED BY ARTICLE I, SEC. 2.  AND THIS RIGHT OF
PARTICIPATION IS PROTECTED JUST AS IS THE RIGHT TO VOTE AT THE
ELECTION, WHERE THE PRIMARY IS BY LAW MADE AN INTEGRAL PART OF THE
ELECTION MACHINERY, WHETHER THE VOTER EXERCISES HIS RIGHT IN A PARTY
PRIMARY WHICH INVARIABLY, SOMETIMES OR NEVER DETERMINES THE ULTIMATE
CHOICE OF THE REPRESENTATIVE.  HERE, EVEN APART FROM THE CIRCUMSTANCE
THAT THE LOUISIANA PRIMARY IS MADE BY LAW AN INTEGRAL PART OF THE
PROCEDURE OF CHOICE, THE RIGHT TO CHOOSE A REPRESENTATIVE IS IN FACT
CONTROLLED BY THE PRIMARY BECAUSE, AS IS ALLEGED IN THE INDICTMENT, THE
CHOICE OF CANDIDATES AT THE DEMOCRATIC PRIMARY DETERMINES THE CHOICE OF
THE ELECTED REPRESENTATIVE.  MOREOVER, WE CANNOT CLOSE OUR EYES TO THE
FACT, ALREADY MENTIONED, THAT THE PRACTICAL INFLUENCE OF THE CHOICE OF
CANDIDATES AT THE PRIMARY MAY BE SO GREAT AS TO AFFECT PROFOUNDLY THE
CHOICE AT THE GENERAL ELECTION, EVEN THOUGH THERE IS NO EFFECTIVE LEGAL
PROHIBITION UPON THE REJECTION AT THE ELECTION OF THE CHOICE MADE AT
THE PRIMARY, AND MAY THUS OPERATE TO DEPRIVE THE VOTER OF HIS
CONSTITUTIONAL RIGHT OF CHOICE.  THIS WAS NOTED AND EXTENSIVELY
COMMENTED UPON BY THE CONCURRING JUSTICES IN NEWBERRY V. UNITED STATES,
SUPRA, 263-269, 285, 287. 

UNLESS THE CONSTITUTIONAL PROTECTION OF THE INTEGRITY OF "ELECTIONS"
EXTENDS TO PRIMARY ELECTIONS, CONGRESS IS LEFT POWERLESS TO EFFECT THE
CONSTITUTIONAL PURPOSE, AND THE POPULAR CHOICE OF REPRESENTATIVES IS
STRIPPED OF ITS CONSTITUTIONAL PROTECTION SAVE ONLY AS CONGRESS, BY
TAKING OVER THE CONTROL OF STATE ELECTIONS, MAY EXCLUDE FROM THEM THE
INFLUENCE OF THE STATE PRIMARIES.  FN3  SUCH AN EXPEDIENT WOULD END
THAT STATE AUTONOMY WITH RESPECT TO ELECTIONS WHICH THE CONSTITUTION
CONTEMPLATED THAT CONGRESS SHOULD BE FREE TO LEAVE UNDISTURBED, SUBJECT
ONLY TO SUCH MINIMUM REGULATION AS IT SHOULD FIND NECESSARY TO INSURE
THE FREEDOM AND INTEGRITY OF THE CHOICE.  WORDS, ESPECIALLY THOSE OF A
CONSTITUTION, ARE NOT TO BE READ WITH SUCH STULTIFYING NARROWNESS.  THE
WORDS OF SECS. 2 AND 4 OF ARTICLE I, READ IN THE SENSE WHICH IS PLAINLY
PERMISSIBLE AND IN THE LIGHT OF THE CONSTITUTIONAL PURPOSE, REQUIRE US
TO HOLD THAT A PRIMARY ELECTION WHICH INVOLVES A NECESSARY STEP IN THE
CHOICE OF CANDIDATES FOR ELECTION AS REPRESENTATIVES IN CONGRESS, AND
WHICH IN THE CIRCUMSTANCES OF THIS CASE CONTROLS THAT CHOICE, IS AN
ELECTION WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION AND IS
SUBJECT TO CONGRESSIONAL REGULATION AS TO THE MANNER OF HOLDING IT. 

NOT ONLY DOES SEC. 4 OF ARTICLE I AUTHORIZE CONGRESS TO REGULATE THE
MANNER OF HOLDING ELECTIONS, BUT BY ARTICLE I, SEC. 8, CLAUSE 18,
CONGRESS IS GIVEN AUTHORITY "TO MAKE ALL LAWS WHICH SHALL BE NECESSARY
AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS AND ALL
OTHER POWERS VESTED BY THIS CONSTITUTION IN THE GOVERNMENT OF THE
UNITED STATES OR IN ANY DEPARTMENT OR OFFICER THEREOF."  THIS PROVISION
LEAVES TO THE CONGRESS THE CHOICE OF MEANS BY WHICH ITS CONSTITUTIONAL
POWERS ARE TO BE CARRIED INTO EXECUTION.  "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."  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 421.  THAT
PRINCIPLE HAS BEEN CONSISTENTLY ADHERED TO AND LIBERALLY APPLIED, AND
EXTENDS TO THE CONGRESSIONAL POWER BY APPROPRIATE LEGISLATION TO
SAFEGUARD THE RIGHT OF CHOICE BY THE PEOPLE OF REPRESENTATIVES IN
CONGRESS, SECURED BY SEC. 2 OF ARTICLE I. EX PARTE YARBROUGH, SUPRA,
657, 658; CF. SECOND EMPLOYERS LIABILITY CASES, 223 U.S. 1, 49; HOUSTON
& TEXAS RY. CO. V. UNITED STATES, 234 U.S. 342, 350, 355; WILSON V.
NEW, 243 U.S. 332, 346, 347; FIRST NATIONAL BANK V. UNION TRUST CO.,
244 U.S. 416, 419; SELECTIVE DRAFT LAW CASES, 245 U.S. 366, 381; UNITED
STATES V. FERGER, 250 U.S. 199, 205; HAMILTON V. KENTUCKY DISTILLERIES
CO., 251 U.S. 146, 155, 163; JACOB RUPPERT V. CAFFEY, 251 U.S. 264;
SMITH V. KANSAS CITY TITLE & TRUST CO., 255 U.S. 180; UNITED STATES V.
DARBY, 312 U.S. 100, AND CASES CITED. 

THERE REMAINS THE QUESTION WHETHER SECS. 19 AND 20 ARE AN EXERCISE OF
THE CONGRESSIONAL AUTHORITY APPLICABLE TO THE ACTS WITH WHICH APPELLEES
ARE CHARGED IN THE INDICTMENT.  SECTION 19 MAKES IT A CRIME TO CONSPIRE
TO "INJURE" OR "OPPRESS" ANY CITIZEN "IN THE FREE EXERCISE OR ENJOYMENT
OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION."  N4  IN
EX PARTE YARBROUGH, SUPRA, AND IN UNITED STATES V. MOSLEY, SUPRA, AS WE
HAVE SEEN, IT WAS HELD THAT THE RIGHT TO VOTE IN A CONGRESSIONAL
ELECTION IS A RIGHT SECURED BY THE CONSTITUTION, AND THAT A CONSPIRACY
TO PREVENT THE CITIZEN FROM VOTING, OR TO PREVENT THE OFFICIAL COUNT OF
HIS BALLOT WHEN CAST, IS A CONSPIRACY TO INJURE AND OPPRESS THE CITIZEN
IN THE FREE EXERCISE OF A RIGHT SECURED BY THE CONSTITUTION WITHIN THE
MEANING OF SEC. 19.  IN REACHING THIS CONCLUSION THE COURT FOUND NO
UNCERTAINTY OR AMBIGUITY IN THE STATUTORY LANGUAGE, OBVIOUSLY DEVISED
TO PROTECT THE CITIZEN "IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT
OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION," AND CONCERNED ITSELF
WITH THE QUESTION WHETHER THE RIGHT TO PARTICIPATE IN CHOOSING A
REPRESENTATIVE IS SO SECURED.  FN5  SUCH IS OUR FUNCTION HERE. 
CONSPIRACY TO PREVENT THE OFFICIAL COUNT OF A CITIZEN'S BALLOT, HELD IN
UNITED STATES V. MOSLEY, SUPRA, TO BE A VIOLATION OF SEC. 19 IN THE
CASE OF A CONGRESSIONAL ELECTION, IS EQUALLY A CONSPIRACY TO INJURE AND
OPPRESS THE CITIZEN WHEN THE BALLOTS ARE CAST IN A PRIMARY ELECTION
PREREQUISITE TO THE CHOICE OF PARTY CANDIDATES FOR A CONGRESSIONAL
ELECTION.  IN BOTH CASES THE RIGHT INFRINGED IS ONE SECURED BY THE
CONSTITUTION.  THE INJURY SUFFERED BY THE CITIZEN IN THE EXERCISE OF
THE RIGHT IS AN INJURY WHICH THE STATUTE DESCRIBES AND TO WHICH IT
APPLIES IN THE ONE CASE AS IN THE OTHER. 

THE SUGGESTION THAT SEC. 19, CONCEDEDLY APPLICABLE TO CONSPIRACIES TO
DEPRIVE ELECTORS OF THEIR VOTES AT CONGRESSIONAL ELECTIONS, IS NOT
SUFFICIENTLY SPECIFIC TO BE DEEMED APPLICABLE TO PRIMARY ELECTIONS,
WILL HARDLY BEAR EXAMINATION.  SECTION 19 SPEAKS NEITHER OF ELECTIONS
NOR OF PRIMARIES.  IN UNAMBIGUOUS LANGUAGE IT PROTECTS "ANY RIGHT OR
PRIVILEGE SECURED BY THE CONSTITUTION," A PHRASE WHICH, AS WE HAVE
SEEN, EXTENDS TO THE RIGHT OF THE VOTER TO HAVE HIS VOTE COUNTED IN
BOTH THE GENERAL ELECTION AND IN THE PRIMARY ELECTION, WHERE THE LATTER
IS A PART OF THE ELECTION MACHINERY, AS WELL AS TO NUMEROUS OTHER
CONSTITUTIONAL RIGHTS WHICH ARE WHOLLY UNRELATED TO THE CHOICE OF A
REPRESENTATIVE IN CONGRESS.  UNITED STATES V. WADDELL, 112 U.S. 76;
LOGAN V. UNITED STATES, 144 U.S. 263; IN RE QUARLES, 158 U.S. 532;
MOTES V. UNITED STATES, 178 U.S. 458; GUINN V. UNITED STATES, 238 U.S.
347. 

IN THE FACE OF THE BROAD LANGUAGE OF THE STATUTE, WE ARE POINTED TO
NO PRINCIPLE OF STATUTORY CONSTRUCTION AND TO NO SIGNIFICANT
LEGISLATIVE HISTORY WHICH COULD BE THOUGHT TO SANCTION OUR SAYING THAT
THE STATUTE APPLIES ANY THE LESS TO PRIMARIES THAN TO ELECTIONS, WHERE
IN ONE AS IN THE OTHER IT IS THE SAME CONSTITUTIONAL RIGHT WHICH IS
INFRINGED.  IT DOES NOT AVAIL TO ATTEMPT TO DISTINGUISH THE PROTECTION
AFFORDED BY SEC. 1 OF THE CIVIL RIGHTS ACT OF 1871,  FN6  TO THE RIGHT
TO PARTICIPATE IN PRIMARY AS WELL AS GENERAL ELECTIONS SECURED TO ALL
CITIZENS BY THE CONSTITUTION, SEE GUINN V. UNITED STATES, 238 U.S. 347;
NIXON V. HERNDON, 273 U.S. 536; NIXON V. CONDON, 286 U.S. 73; LANE V.
WILSON, 307 U.S. 268, ON THE GROUND THAT IN THOSE CASES THE INJURED
CITIZENS WERE NEGROES WHOSE RIGHTS WERE CLEARLY PROTECTED BY THE
FOURTEENTH AMENDMENT.  AT LEAST SINCE EX PARTE YARBROUGH, SUPRA, AND NO
MEMBER OF THE COURT SEEMS EVER TO HAVE QUESTIONED IT, THE RIGHT TO
PARTICIPATE IN THE CHOICE OF REPRESENTATIVES IN CONGRESS HAS BEEN
RECOGNIZED AS A RIGHT PROTECTED BY ART. I, SECS. 2 AND 4 OF THE
CONSTITUTION.  FN7  DIFFERENCES OF OPINION HAVE ARISEN AS TO THE EFFECT
OF THE PRIMARY IN PARTICULAR CASES ON THE CHOICE OF REPRESENTATIVES. 
BUT WE ARE TROUBLED BY NO SUCH DOUBT HERE.  HENCE, THE RIGHT TO
PARTICIPATE THROUGH THE PRIMARY IN THE CHOICE OF REPRESENTATIVES IN
CONGRESS - A RIGHT CLEARLY SECURED BY THE CONSTITUTION - IS WITHIN THE
WORDS AND PURPOSE OF SEC. 19 IN THE SAME MANNER AND TO THE SAME EXTENT
AS THE RIGHT TO VOTE AT THE GENERAL ELECTION.  UNITED STATES V. MOSLEY,
SUPRA.  IT IS NO EXTENSION OF THE CRIMINAL STATUTE, AS IT WAS NOT OF
THE CIVIL STATUTE IN NIXON V. HERNDON, SUPRA, TO FIND A VIOLATION OF IT
IN A NEW METHOD OF INTERFERENCE WITH THE RIGHT WHICH ITS WORDS
PROTECT.  FOR IT IS THE CONSTITUTIONAL RIGHT, REGARDLESS OF THE METHOD
OF INTERFERENCE, WHICH IS THE SUBJECT OF THE STATUTE AND WHICH IN
PRECISE TERMS IT PROTECTS FROM INJURY AND OPPRESSION.    IT IS HARDLY
THE PERFORMANCE OF THE JUDICIAL FUNCTION TO CONSTRUE A STATUTE, WHICH
IN TERMS PROTECTS A RIGHT SECURED BY THE CONSTITUTION, HERE THE RIGHT
TO CHOOSE A REPRESENTATIVE IN CONGRESS, AS APPLYING TO AN ELECTION
WHOSE ONLY FUNCTION IS TO RATIFY A CHOICE ALREADY MADE AT THE PRIMARY,
BUT AS HAVING NO APPLICATION TO THE PRIMARY WHICH IS THE ONLY EFFECTIVE
MEANS OF CHOICE.  TO WITHDRAW FROM THE SCOPE OF THE STATUTE AN
EFFECTIVE INTERFERENCE WITH THE CONSTITUTIONAL RIGHT OF CHOICE, BECAUSE
OTHER WHOLLY DIFFERENT SITUATIONS NOT NOW BEFORE US MAY NOT BE FOUND TO
INVOLVE SUCH AN INTERFERENCE, CF. UNITED STATES V. BATHGATE, 246 U.S.
220; UNITED STATES V. GRADWELL, 243 U.S. 476, IS TO SAY THAT ACTS
PLAINLY WITHIN THE STATUTE SHOULD BE DEEMED TO BE WITHOUT IT BECAUSE
OTHER HYPOTHETICAL CASES MAY LATER BE FOUND NOT TO INFRINGE THE
CONSTITUTIONAL RIGHT WITH WHICH ALONE THE STATUTE IS CONCERNED. 

IF A RIGHT SECURED BY THE CONSTITUTION MAY BE INFRINGED BY THE
CORRUPT FAILURE TO INCLUDE THE VOTE AT A PRIMARY IN THE OFFICIAL COUNT,
IT IS NOT SIGNIFICANT THAT THE PRIMARY, LIKE THE VOTING MACHINE, WAS
UNKNOWN WHEN SEC. 19 WAS ADOPTED.  FN8  ABUSE OF EITHER MAY INFRINGE
THE RIGHT AND THEREFORE VIOLATE SEC. 19.  SEE UNITED STATES V. PLEVA,
66 F.2D 529, 530; CF. BROWDER V. UNITED STATES, 312 U.S. 335.  NOR DOES
THE FACT THAT IN CIRCUMSTANCES NOT HERE PRESENT THERE MAY BE DIFFICULTY
IN DETERMINING WHETHER THE PRIMARY SO AFFECTS THE RIGHT OF THE CHOICE
AS TO BRING IT WITHIN THE CONSTITUTIONAL PROTECTION, AFFORD ANY GROUND
FOR DOUBTING THE CONSTRUCTION AND APPLICATION OF THE STATUTE ONCE THE
CONSTITUTIONAL QUESTION IS RESOLVED.  THAT DIFFICULTY IS INHERENT IN
THE JUDICIAL ADMINISTRATION OF EVERY FEDERAL CRIMINAL STATUTE, FOR
NONE, WHATEVER ITS TERMS, CAN BE APPLIED BEYOND THE REACH OF THE
CONGRESSIONAL POWER WHICH THE CONSTITUTION CONFERS.  STANDARD SANITARY
MFG. CO. V. UNITED STATES, 226 U.S. 20; HOKE V. UNITED STATES, 227 U.S.
308; NASH V. UNITED STATES, 229 U.S. 373; UNITED STATES V. FREEMAN, 239
U.S. 117; UNITED STATES V. DARBY, 312 U.S. 100. 

THE RIGHT OF THE VOTERS AT THE PRIMARY TO HAVE THEIR VOTES COUNTED
IS, AS WE HAVE STATED, A RIGHT OR PRIVILEGE SECURED BY THE
CONSTITUTION, AND TO THIS SEC. 20 ALSO GIVES PROTECTION.  FN9 THE
ALLEGED ACTS OF APPELLEES WERE COMMITTED IN THE COURSE OF THEIR
PERFORMANCE OF DUTIES UNDER THE LOUISIANA STATUTE REQUIRING THEM TO
COUNT THE BALLOTS, TO RECORD THE RESULT OF THE COUNT, AND TO CERTIFY
THE RESULT OF THE ELECTION.  MISUSE OF POWER, POSSESSED BY VIRTUE OF
STATE LAW AND MADE POSSIBLE ONLY BECAUSE THE WRONGDOER IS CLOTHED WITH
THE AUTHORITY OF STATE LAW, IS ACTION TAKEN "UNDER COLOR OF" STATE
LAW.  EX PARTE VIRGINIA, 100 U.S. 339, 346; HOME TELEPHONE & TELEGRAPH
CO. V. LOS ANGELES, 227 U.S. 278, 287, ET SEQ.; HAGUE V. C.I.O., 307
U.S. 496, 507, 519; CF. 101 F.2D 774, 790.  HERE THE ACTS OF APPELLEES
INFRINGED THE CONSTITUTIONAL RIGHT AND DEPRIVED THE VOTERS OF THE
BENEFIT OF IT WITHIN THE MEANING OF SEC. 20, UNLESS BY ITS TERMS ITS
APPLICATION IS RESTRICTED TO DEPRIVATIONS "ON ACCOUNT OF SUCH
INHABITANT BEING AN ALIEN OR BY REASON OF HIS COLOR, OR RACE." 

THE LAST CLAUSE OF SEC. 20 PROTECTS INHABITANTS OF A STATE FROM BEING
SUBJECTED TO DIFFERENT PUNISHMENTS, PAINS OR PENALTIES, BY REASON OF
ALIENAGE, COLOR OR RACE, THAN ARE PRESCRIBED FOR THE PUNISHMENT OF
CITIZENS.  THAT THE QUALIFICATION WITH RESPECT TO ALIENAGE, COLOR AND
RACE, REFERS ONLY TO DIFFERENCES IN PUNISHMENT AND NOT TO DEPRIVATIONS
OF ANY RIGHTS OR PRIVILEGES SECURED BY THE CONSTITUTION, IS EVIDENCED
BY THE STRUCTURE OF THE SECTION AND THE NECESSITIES OF THE PRACTICAL
APPLICATION OF ITS PROVISIONS.  THE QUALIFICATION AS TO ALIENAGE, COLOR
AND RACE, IS A PARENTHETICAL PHRASE IN THE CLAUSE PENALIZING DIFFERENT
PUNISHMENTS "THAN ARE PRESCRIBED FOR CITIZENS," AND IN THE COMMON USE
OF LANGUAGE COULD REFER ONLY TO THE SUBJECT-MATTER OF THE CLAUSE AND
NOT TO THAT OF THE EARLIER ONE RELATING TO THE DEPRIVATION OF RIGHTS TO
WHICH IT MAKES NO REFERENCE IN TERMS. 

MOREOVER, THE PROHIBITED DIFFERENCES OF PUNISHMENT ON ACCOUNT OF
ALIENAGE, COLOR OR RACE, ARE THOSE REFERABLE TO PRESCRIBED PUNISHMENTS
WHICH ARE TO BE COMPARED WITH THOSE PRESCRIBED FOR CITIZENS.  A
STANDARD IS THUS SET UP APPLICABLE TO DIFFERENCES IN PRESCRIBED
PUNISHMENTS ON ACCOUNT OF ALIENAGE, COLOR OR RACE, WHICH IT WOULD BE
DIFFICULT, IF NOT IMPOSSIBLE, TO APPLY TO THE WILLFUL DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS OR PRIVILEGES, IN ORDER TO DETERMINE WHETHER THEY
ARE ON ACCOUNT OF ALIENAGE, COLOR OR RACE.  WE THINK THAT SEC. 20
AUTHORIZES THE PUNISHMENT OF TWO DIFFERENT OFFENSES.  THE ONE IS
WILLFULLY SUBJECTING ANY INHABITANT TO THE DEPRIVATION OF RIGHTS
SECURED BY THE CONSTITUTION; THE OTHER IS WILLFULLY SUBJECTING ANY
INHABITANT TO DIFFERENT PUNISHMENTS ON ACCOUNT OF HIS ALIENAGE, COLOR
OR RACE, THAN ARE PRESCRIBED FOR THE PUNISHMENT OF CITIZENS.  THE
MEAGER LEGISLATIVE HISTORY OF THE SECTION SUPPORTS THIS CONCLUSION. 
FN10 

SO INTERPRETED, SEC. 20 APPLIES TO DEPRIVATION OF THE CONSTITUTIONAL
RIGHTS OF QUALIFIED VOTERS TO CHOOSE REPRESENTATIVES IN CONGRESS.  THE
GENERALITY OF THE SECTION, MADE APPLICABLE AS IT IS TO DEPRIVATIONS OF
ANY CONSTITUTIONAL RIGHT, DOES NOT OBSCURE ITS MEANING OR IMPAIR ITS
FORCE WITHIN THE SCOPE OF ITS APPLICATION, WHICH IS RESTRICTED BY ITS
TERMS TO DEPRIVATIONS WHICH ARE WILLFULLY INFLICTED BY THOSE ACTING
UNDER COLOR OF ANY LAW, STATUTE AND THE LIKE. 

WE DO NOT DISCUSS THE APPLICATION OF SEC. 20 TO DEPRIVATIONS OF THE
RIGHT TO EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH
AMENDMENT, A POINT APPARENTLY RAISED AND DISCUSSED FOR THE FIRST TIME
IN THE GOVERNMENT'S BRIEF IN THIS COURT.  THE POINT WAS NOT SPECIALLY
CONSIDERED OR DECIDED BY THE COURT BELOW, AND HAS NOT BEEN ASSIGNED AS
ERROR BY THE GOVERNMENT.  SINCE THE INDICTMENT ON ITS FACE DOES NOT
PURPORT TO CHARGE A DEPRIVATION OF EQUAL PROTECTION TO VOTERS OR
CANDIDATES, WE ARE NOT CALLED UPON TO CONSTRUE THE INDICTMENT IN ORDER
TO RAISE A QUESTION OF STATUTORY VALIDITY OR CONSTRUCTION WHICH WE ARE
ALONE AUTHORIZED TO REVIEW UPON THIS APPEAL.  REVERSED. 

FN1  THE BALLOTS ARE PRINTED AT PUBLIC EXPENSE, SEC. 35 OF ACT NO.
46, REGULAR SESSION, 1940, ARE FURNISHED BY THE SECRETARY OF STATE,
SEC. 36 IN A FORM PRESCRIBED BY STATUTE, SEC. 37.  CLOSE SUPERVISION OF
THE DELIVERY OF THE BALLOTS TO THE ELECTION COMMISSIONERS IS
PRESCRIBED, SECS. 43-46.  THE POLLING PLACES ARE REQUIRED TO BE
EQUIPPED TO SECURE SECRECY, SECS. 48-50; SECS. 54-57.  THE SELECTION OF
ELECTION COMMISSIONERS IS PRESCRIBED, SEC. 61 AND THEIR DUTIES
DETAILED.  THE COMMISSIONERS MUST SWEAR TO CONDUCT THE ELECTION
IMPARTIALLY, SEC. 64 AND ARE SUBJECT TO PUNISHMENT FOR DELIBERATELY
FALSIFYING THE RETURNS OR DESTROYING THE LISTS AND BALLOTS, SECS. 98,
99.  THEY MUST IDENTIFY BY CERTIFICATE THE BALLOT BOXES USED, SEC. 67,
KEEP A TRIPLICATE LIST OF VOTERS, SEC. 68, PUBLICLY CANVASS THE RETURN,
SEC. 74 AND CERTIFY THE SAME TO THE SECRETARY OF STATE, SEC. 75. 

FN2  FOR A DISCUSSION OF THE PRACTICAL EFFECT OF THE PRIMARY IN
CONTROLLING OR RESTRICTING ELECTION OF CANDIDATES AT GENERAL ELECTIONS,
SEE, HASBROUCK, PARTY GOVERNMENT IN THE HOUSE OF REPRESENTATIVES (1927)
172, 176, 177; MERRIAM AND OVERACKER, PRIMARY ELECTIONS (1928) 267-269;
STONEY, SUFFRAGE IN THE SOUTH; 29 SURVEY GRAPHIC, 163, 164. 

FN3  CONGRESS HAS RECOGNIZED THE EFFECT OF PRIMARIES ON THE FREE
EXERCISE OF THE RIGHT TO CHOOSE THE REPRESENTATIVES, FOR IT HAS
INQUIRED INTO FRAUDS AT PRIMARIES AS WELL AS AT THE GENERAL ELECTIONS
IN JUDGING THE "ELECTIONS RETURNS AND QUALIFICATIONS OF ITS OWN
MEMBERS," ART. I, SEC. 5.  SEE GRACE V. WHALEY, H. REPT. NO. 158, 63D
CONG., 2D SESS.; PEDDY V. MAYFIELD, S. REPT. NO. 973, 68TH CONG., 2D
SESS.; WILSON V. VARE, S. REPT. NO. 1858, 70TH CONG., 2D SESS., S.
REPT. NO. 47, 71ST CONG., 2D SESS., AND S. RES. 111, 71ST CONG., 2D
SESS. 

SEE ALSO INVESTIGATION OF CAMPAIGN EXPENDITURES IN THE 1940 CAMPAIGN,
S. REPT. NO. 47, 77TH CONG., 1ST SESS., P. 48 ET SEQ. 

FN4  SECTION 19 OF THE CRIMINAL CODE (U.S.C., TITLE 18, SEC. 51): 

"IF TWO OR MORE PERSONS CONSPIRE TO INJURE, OPPRESS, THREATEN, OR
INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR ENJOYMENT OF ANY RIGHT
OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES, OR BECAUSE OF HIS HAVING SO EXERCISED THE SAME, OR IF TWO OR
MORE PERSONS GO IN DISGUISE ON THE HIGHWAY, OR ON THE PREMISES OF
ANOTHER, WITH INTENT TO PREVENT OR HINDER HIS FREE EXERCISE OR
ENJOYMENT OF ANY RIGHT OR PRIVILEGE SO SECURED, THEY SHALL BE FINED NOT
MORE THAN $5,000 AND IMPRISONED NOT MORE THAN TEN YEARS, AND SHALL,
MOREOVER, BE THEREAFTER INELIGIBLE TO ANY OFFICE, OR PLACE OF HONOR,
PROFIT, OR TRUST CREATED BY THE CONSTITUTION OR LAWS OF THE UNITED
STATES."  (R.S. SEC. 5508; MAR. 4, 1909, C. 321, SEC. 19, 35 STAT.
1092.) 

FN5  IN UNITED STATES V. MOSLEY, 238 U.S. 383, 386, THE COURT THOUGHT
THAT "MANIFESTLY THE WORDS ARE BROAD ENOUGH TO COVER THE CASE," IT
CANVASSED AT LENGTH THE OBJECTIONS THAT SEC. 19 WAS NEVER INTENDED TO
APPLY TO CRIMES AGAINST THE FRANCHISE, AND THE OTHER CONTENTION, WHICH
IT ALSO REJECTED, THAT SEC. 19 HAD BEEN REPEALED OR SO RESTRICTED AS
NOT TO APPLY TO OFFENSES OF THAT CLASS.  IT IS UNNECESSARY TO REPEAT
THAT DISCUSSION HERE. 

FN6  SECTION 1 NOW READS, 8 U.S.C. SEC. 43:  "EVERY PERSON WHO, UNDER
COLOR OF ANY STATUTE, ORDINANCE, REGULATION, CUSTOM OR USAGE, OF ANY
STATE OR TERRITORY, SUBJECTS OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF
THE UNITED STATES OR OTHER PERSON WITHIN THE JURISDICTION THEREOF TO
THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED IN AN
ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR
REDRESS." 

FN7  SEE E.G. GUINN V. UNITED STATES, 238 U.S. 347; UNITED STATES V.
O'TOOLE, 236 F. 993, AFF'D UNITED STATES V. GRADWELL, 243 U.S. 476;
ACZEL V. UNITED STATES, 232 F. 652; FELIX V. UNITED STATES, 186 F. 685;
KAREM V. UNITED STATES, 121 F. 250; WALKER V. UNITED STATES, 93 F.2D
383; LUTERAN V. UNITED STATES, 93 F.2D 395. 

FN8  NO CONCLUSION IS TO BE DRAWN FROM THE FAILURE OF THE HATCH ACT,
53 STAT. 1147, 18 U.S.C. SEC. 61, TO ENLARGE SEC. 19 BY PROVISIONS
SPECIFICALLY APPLICABLE TO PRIMARIES.  ITS FAILURE TO DEAL WITH THE
SUBJECT SEEMS TO BE ATTRIBUTABLE TO CONSTITUTIONAL DOUBTS, STIMULATED
BY NEWBERRY V. UNITED STATES, 256 U.S. 232, WHICH ARE HERE RESOLVED. 
SEE 84 CONG. REC., 76TH CONG., 1ST SESS., P. 4191; CF. INVESTIGATION OF
CAMPAIGN EXPENDITURES IN THE 1940 CAMPAIGN, S. REPT. NO. 47, 77TH
CONG., 1ST SESS., P. 48. 

FN9  SECTION 20 OF THE CRIMINAL CODE (U.S.C., TITLE 18 SEC. 52): 

"WHOEVER, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION, OR
CUSTOM, WILLFULLY SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY INHABITANT
OF ANY STATE, TERRITORY, OR DISTRICT TO THE DEPRIVATION OF ANY RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED OR PROTECTED BY THE CONSTITUTION AND
LAWS OF THE UNITED STATES, OR TO DIFFERENT PUNISHMENTS, PAINS, OR
PENALTIES, ON ACCOUNT OF SUCH INHABITANT BEING AN ALIEN, OR BY REASON
OF HIS COLOR, OR RACE, THAN ARE PRESCRIBED FOR THE PUNISHMENT OF
CITIZENS, SHALL BE FINED NOT MORE THAN $1,000, OR IMPRISONED NOT MORE
THAN ONE YEAR, OR BOTH."  (R.S. SEC. 5510; MAR. 4, 1909, C. 321, SEC.
20, 35 STAT. 1092.) 

FN10  THE PRECURSOR OF SEC. 20 WAS SEC. 2 OF THE CIVIL RIGHTS ACT OF
APRIL 9, 1866, 14 STAT. 27, WHICH READS: 

"THAT ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, OR CUSTOM, SHALL SUBJECT, OR CAUSE TO BE SUBJECTED, ANY
INHABITANT OF ANY STATE OR TERRITORY TO THE DEPRIVATION OF ANY RIGHT
SECURED OR PROTECTED BY THIS ACT, OR TO DIFFERENT PUNISHMENT, PAINS, OR
PENALTIES ON ACCOUNT OF SUCH PERSON HAVING AT ANY TIME BEEN HELD IN A
CONDITION OF SLAVERY OR INVOLUNTARY SERVITUDE, EXCEPT AS A PUNISHMENT
FOR CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED, OR BY
REASON OF HIS COLOR OR RACE, THAN IS PRESCRIBED FOR THE PUNISHMENT OF
WHITE PERSONS, SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND, ON
CONVICTION SHALL BE PUNISHED BY FINE.  ...  " 

THIS SECTION, SO FAR AS NOW MATERIAL, WAS IN SUBSTANCE THE SAME AS
SEC. 20 EXCEPT THAT THE QUALIFYING REFERENCE TO DIFFERENCES IN
PUNISHMENT MADE NO MENTION OF ALIENAGE, THE REFERENCE BEING TO
"DIFFERENT PUNISHMENT  ... ON ACCOUNT OF SUCH PERSON HAVING AT ANY TIME
BEEN HELD IN A CONDITION OF SLAVERY OR INVOLUNTARY SERVITUDE." 

SENATOR TRUMBULL, THE PUTATIVE AUTHOR OF S. 61, 39TH CONG., 1ST
SESS., THE CIVIL RIGHTS BILL OF 1866, AND CHAIRMAN OF THE SENATE
JUDICIARY COMMITTEE WHICH REPORTED THE BILL, IN EXPLAINING IT STATED
THAT THE BILL WAS "TO PROTECT ALL PERSONS IN THE UNITED STATES IN THEIR
CIVIL RIGHTS, AND FURNISH THE MEANS OF THEIR VINDICATION.  ...  "
CONG.  GLOBE, 39TH CONG., 1ST SESS., P. 211.  HE ALSO DECLARED, "THE
BILL APPLIES TO WHITE MEN AS WELL AS BLACK MEN."  CONG. GLOBE, 39TH
CONG., 1ST SESS., P. 599.  OPPONENTS OF THE BILL AGREED WITH THIS
CONSTRUCTION OF THE FIRST CLAUSE OF THE SECTION, DECLARING THAT IT
REFERRED TO THE DEPRIVATION OF CONSTITUTIONAL RIGHTS OF ALL INHABITANTS
OF THE STATES OF EVERY RACE AND COLOR.  PP. 598, 601. 

ON FEBRUARY 24, 1870, SENATOR STEWART OF NEVADA, INTRODUCED S. 365,
41ST CONG., 2D SESS., SEC. 2 OF WHICH READ: 

"THAT ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, OR CUSTOM SHALL SUBJECT, OR CAUSE TO BE SUBJECTED, ANY
INHABITANT OF ANY STATE OR TERRITORY TO THE DEPRIVATION OF ANY RIGHT
SECURED OR PROTECTED BY THIS ACT, OR TO DIFFERENT PUNISHMENT, PAINS, OR
PENALTIES ON ACCOUNT OF SUCH PERSON BEING AN ALIEN, OR BY REASON OF HIS
COLOR OR RACE, THAN IS PRESCRIBED FOR THE PUNISHMENT OF WHITE PERSONS,
SHALL BE DEEMED GUILTY OF A MISDEMEANOR.  ...  "    IN EXPLAINING THE
BILL HE DECLARED, CONG. GLOBE, 41ST CONG., 2D SESS., P. 1536, THAT THE
PURPOSE OF THE BILL WAS TO EXTEND ITS BENEFITS TO ALIENS, SAYING, "IT
EXTENDS THE OPERATION OF THE CIVIL RIGHTS BILL, WHICH IS WELL KNOWN IN
THE SENATE AND TO THE COUNTRY, TO ALL PERSONS WITHIN THE JURISDICTION
OF THE UNITED STATES."  THE COMMITTEE REPORTED OUT A SUBSTITUTE BILL TO
H.R. 1293, TO WHICH S. 365 WAS ADDED AS AN AMENDMENT.  AS SO AMENDED
THE BILL WHEN ADOPTED BECAME THE PRESENT SEC. 20 OF THE CRIMINAL CODE
WHICH READ EXACTLY AS DID SEC. 2 OF THE CIVIL RIGHTS ACT, EXCEPT THAT
THE WORD "ALIENS" WAS ADDED AND THE WORD "CITIZENS" WAS SUBSTITUTED FOR
THE PHRASE "WHITE PERSONS."    WHILE THE LEGISLATIVE HISTORY INDICATES
THAT THE IMMEDIATE OCCASION FOR THE ADOPTION OF SEC. 20, LIKE THE
FOURTEENTH AMENDMENT ITSELF, WAS THE MORE ADEQUATE PROTECTION OF THE
COLORED RACE AND THEIR CIVIL RIGHTS, IT SHOWS THAT NEITHER WAS
RESTRICTED TO THE PURPOSE AND THAT THE FIRST CLAUSE OF SEC. 20 WAS
INTENDED TO PROTECT THE CONSTITUTIONAL RIGHTS OF ALL INHABITANTS OF THE
STATES.  H.R. 1293, 41ST CONG., 2D SESS., WHICH WAS LATER AMENDED IN
THE SENATE TO INCLUDE SEC. 2 OF S. 365 AS SEC. 17 OF THE BILL AS IT
PASSED, NOW SEC. 20 OF THE CRIMINAL CODE, WAS ORIGINALLY ENTITLED "A
BILL TO ENFORCE THE RIGHT OF CITIZENS OF THE UNITED STATES TO VOTE IN
THE SEVERAL STATES OF THIS UNION, WHO HAVE HITHERTO BEEN DENIED THAT
RIGHT ON ACCOUNT OF RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE." 
WHEN THE BILL CAME TO THE SENATE ITS TITLE WAS AMENDED AND ADOPTED TO
READ, "A BILL TO ENFORCE THE RIGHT OF CITIZENS OF THE UNITED STATES TO
VOTE IN THE SEVERAL STATES OF THIS UNION AND FOR OTHER PURPOSES." 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE DOUGLAS, DISSENTING. 

FREE AND HONEST ELECTIONS ARE THE VERY FOUNDATION OF OUR REPUBLICAN
FORM OF GOVERNMENT.  HENCE ANY ATTEMPT TO DEFILE THE SANCTITY OF THE
BALLOT CANNOT BE VIEWED WITH EQUANIMITY.  AS STATED BY MR. JUSTICE
MILLER IN EX PARTE YARBROUGH, 110 U.S. 651, 666, "THE TEMPTATIONS TO
CONTROL THESE ELECTIONS BY VIOLENCE AND CORRUPTION" HAVE BEEN A
CONSTANT SOURCE OF DANGER IN THE HISTORY OF ALL REPUBLICS.  THE ACTS
HERE CHARGED, IF PROVEN, ARE OF A KIND WHICH CARRIES THAT THREAT AND
ARE HIGHLY OFFENSIVE.  SINCE THEY CORRUPT THE PROCESS OF CONGRESSIONAL
ELECTIONS, THEY TRANSCEND MERE LOCAL CONCERN AND EXTEND A CONTAMINATING
INFLUENCE INTO THE NATIONAL DOMAIN. 

I THINK CONGRESS HAS AMPLE POWER TO DEAL WITH THEM.  THAT IS TO SAY,
I DISAGREE WITH NEWBERRY V. UNITED STATES, 256 U.S. 232, TO THE EXTENT
THAT IT HOLDS THAT CONGRESS HAS NO POWER TO CONTROL PRIMARY ELECTIONS. 
ART. I, SEC. 2 OF THE CONSTITUTION PROVIDES THAT "THE HOUSE OF
REPRESENTATIVES SHALL BE COMPOSED OF MEMBERS CHOSEN EVERY SECOND YEAR
BY THE PEOPLE OF THE SEVERAL STATES."  ART. I, SEC. 4 PROVIDES THAT
"THE TIMES, PLACES AND MANNER OF HOLDING ELECTIONS FOR SENATORS AND
REPRESENTATIVES, SHALL BE PRESCRIBED IN EACH STATE BY THE LEGISLATURE
THEREOF; BUT THE CONGRESS MAY AT ANY TIME BY LAW MAKE OR ALTER SUCH
REGULATIONS, EXCEPT AS TO THE PLACES OF CHUSING SENATORS."  AND ART. I,
SEC. 8, CLAUSE 18 GIVES CONGRESS THE POWER "TO MAKE ALL LAWS WHICH
SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING
POWERS, AND ALL OTHER POWERS VESTED BY THIS CONSTITUTION IN THE
GOVERNMENT OF THE UNITED STATES, OR IN ANY DEPARTMENT OR OFFICER
THEREOF."  THOSE SECTIONS ARE AN ARSENAL OF POWER AMPLE TO PROTECT
CONGRESSIONAL ELECTIONS FROM ANY AND ALL FORMS OF POLLUTION.  THE FACT
THAT A PARTICULAR FORM OF POLLUTION HAS ONLY AN INDIRECT EFFECT ON THE
FINAL ELECTION IS IMMATERIAL.  THE FACT THAT IT OCCURS IN A PRIMARY
ELECTION OR NOMINATING CONVENTION IS LIKEWISE IRRELEVANT.  THE
IMPORTANT CONSIDERATION IS THAT THE CONSTITUTION SHOULD BE INTERPRETED
BROADLY SO AS TO GIVE TO THE REPRESENTATIVES OF A FREE PEOPLE ABUNDANT
POWER TO DEAL WITH ALL THE EXIGENCIES OF THE ELECTORAL PROCESS.  IT
MEANS THAT THE CONSTITUTION SHOULD BE READ SO AS TO GIVE CONGRESS AN
EXPANSIVE IMPLIED POWER TO PLACE BEYOND THE PALE ACTS WHICH, IN THEIR
DIRECT OR INDIRECT EFFECT, IMPAIR THE INTEGRITY OF CONGRESSIONAL
ELECTIONS.  FOR WHEN CORRUPTION ENTERS, THE ELECTION IS NO LONGER FREE,
THE CHOICE OF THE PEOPLE IS AFFECTED.  TO HOLD THAT CONGRESS IS
POWERLESS TO CONTROL THESE PRIMARIES WOULD INDEED BE A NARROW
CONSTRUCTION OF THE CONSTITUTION, INCONSISTENT WITH THE VIEW THAT THAT
INSTRUMENT OF GOVERNMENT WAS DESIGNED NOT ONLY FOR CONTEMPORARY NEEDS
BUT FOR THE VICISSITUDES OF TIME. 

SO I AGREE WITH MOST OF THE VIEWS EXPRESSED IN THE OPINION OF THE
COURT.  AND IT IS WITH DIFFIDENCE THAT I DISSENT FROM THE RESULT THERE
REACHED. 

THE DISAGREEMENT CENTERS ON THE MEANING OF SEC. 19 OF THE CRIMINAL
CODE, WHICH PROTECTS EVERY RIGHT SECURED BY THE CONSTITUTION.  THE
RIGHT TO VOTE AT A FINAL CONGRESSIONAL ELECTION AND THE RIGHT TO HAVE
ONE'S VOTE COUNTED IN SUCH AN ELECTION HAVE BEEN HELD TO BE PROTECTED
BY SEC. 19.  EX PARTE YARBROUGH, SUPRA; UNITED STATES V. MOSLEY, 238
U.S. 383.  YET I DO NOT THINK THAT THE PRINCIPLES OF THOSE CASES SHOULD
BE, OR PROPERLY CAN BE, EXTENDED TO PRIMARY ELECTIONS.  TO SUSTAIN THIS
INDICTMENT WE MUST SO EXTEND THEM.  BUT WHEN WE DO, WE ENTER PERILOUS
TERRITORY. 

WE ENTER PERILOUS TERRITORY BECAUSE, AS STATED IN UNITED STATES V.
GRADWELL, 243 U.S. 476, 485, THERE IS NO COMMON LAW OFFENSE AGAINST THE
UNITED STATES; "THE LEGISLATIVE AUTHORITY OF THE UNION MUST MAKE AN ACT
A CRIME, AFFIX A PUNISHMENT TO IT, AND DECLARE THE COURT THAT SHALL
HAVE JURISDICTION OF THE OFFENCE."  UNITED STATES V. HUDSON, 7 CRANCH
32, 34.  IF A PERSON IS TO BE CONVICTED OF A CRIME, THE OFFENSE MUST BE
CLEARLY AND PLAINLY EMBRACED WITHIN THE STATUTE.  AS STATED BY CHIEF
JUSTICE MARSHALL IN UNITED STATES V. WILTBERGER, 5 WHEAT.  76, 105,
"PROBABILITY IS NOT A GUIDE WHICH A COURT, IN CONSTRUING A PENAL
STATUTE, CAN SAFELY TAKE."  IT IS ONE THING TO ALLOW WIDE AND GENEROUS
SCOPE TO THE EXPRESS AND IMPLIED POWERS OF CONGRESS; IT IS DISTINCTLY
ANOTHER TO READ INTO THE VAGUE AND GENERAL LANGUAGE OF AN ACT OF
CONGRESS SPECIFICATIONS OF CRIMES.  WE SHOULD EVER BE MINDFUL THAT
"BEFORE A MAN CAN BE PUNISHED, HIS CASE MUST BE PLAINLY AND
UNMISTAKABLY WITHIN THE STATUTE."  UNITED STATES V. LACHER, 134 U.S.
624, 628.  THAT ADMONITION IS REEMPHASIZED HERE BY THE FACT THAT SEC.
19 IMPOSES NOT ONLY A FINE OF $5,000 AND TEN YEARS IN PRISON, BUT ALSO
MAKES HIM WHO IS CONVICTED "INELIGIBLE TO ANY OFFICE, OR PLACE OF
HONOR, PROFIT, OR TRUST CREATED BY THE CONSTITUTION OR LAWS OF THE
UNITED STATES."  IT IS NOT ENOUGH FOR US TO FIND IN THE VAGUE PENUMBRA
OF A STATUTE SOME OFFENSE ABOUT WHICH CONGRESS COULD HAVE LEGISLATED,
AND THEN TO PARTICULARIZE IT AS A CRIME BECAUSE IT IS HIGHLY
OFFENSIVE.  CF. JAMES V. BOWMAN, 190 U.S. 127.  CIVIL LIBERTIES ARE TOO
DEAR TO PERMIT CONVICTION FOR CRIMES WHICH ARE ONLY IMPLIED AND WHICH
CAN BE SPELLED OUT ONLY BY ADDING INFERENCE TO INFERENCE. 

SEC. 19 DOES NOT PURPORT TO BE AN EXERCISE BY CONGRESS OF ITS POWER
TO REGULATE PRIMARIES.  IT MERELY PENALIZES CONSPIRACIES "TO INJURE,
OPPRESS, THREATEN, OR INTIMIDATE ANY CITIZEN IN THE FREE EXERCISE OR
ENJOYMENT OF ANY RIGHT OR PRIVILEGE SECURED TO HIM BY THE CONSTITUTION
OR LAWS OF THE UNITED STATES."  THUS, IT DOES NO MORE THAN REFER US TO
THE CONSTITUTION  FN1  FOR THE PURPOSE OF DETERMINING WHETHER OR NOT
THE RIGHT TO VOTE IN A PRIMARY IS THERE SECURED.  HENCE WE MUST DO MORE
THAN FIND IN THE CONSTITUTION THE POWER OF CONGRESS TO AFFORD THAT
PROTECTION.  WE MUST FIND THAT PROTECTION ON THE FACE OF THE
CONSTITUTION ITSELF.  THAT IS TO SAY, WE MUST IN VIEW OF THE WORDING OF
SEC. 19 READ THE RELEVANT PROVISIONS OF THE CONSTITUTION FOR THE
PURPOSES OF THIS CASE THROUGH THE WINDOW OF A CRIMINAL STATUTE. 

THERE CAN BE PUT TO ONE SIDE CASES WHERE STATE ELECTION OFFICIALS
DEPRIVE NEGRO CITIZENS OF THEIR RIGHT TO VOTE AT A GENERAL ELECTION
(GUINN V. UNITED STATES, 238 U.S. 347), OR AT A PRIMARY.  NIXON V.
HERNDON, 273 U.S. 536; NIXON V. CONDON, 286 U.S. 73.  DISCRIMINATION ON
THE BASIS OF RACE OR COLOR IS PLAINLY OUTLAWED BY THE FOURTEENTH
AMENDMENT.  SINCE THE CONSTITUTIONAL MANDATE IS PLAIN, THERE IS NO
REASON WHY SEC. 19 OR SEC. 20 SHOULD NOT BE APPLICABLE.  BUT THE
SITUATION HERE IS QUITE DIFFERENT.  WHEN WE TURN TO THE CONSTITUTIONAL
PROVISIONS RELEVANT TO THIS CASE WE FIND NO SUCH UNAMBIGUOUS MANDATE. 

ART. I, SEC. 4 SPECIFIES THE MACHINERY WHEREBY THE TIMES, PLACES AND
MANNER OF HOLDING ELECTIONS SHALL BE ESTABLISHED AND CONTROLLED.  ART.
I, SEC. 2 PROVIDES THAT REPRESENTATIVES SHALL BE "CHOSEN" BY THE
PEOPLE.  BUT FOR PURPOSES OF THE CRIMINAL LAW AS CONTRASTED TO THE
INTERPRETATION OF THE CONSTITUTION AS THE SOURCE OF THE IMPLIED POWER
OF CONGRESS, I DO NOT THINK THAT THOSE PROVISIONS IN ABSENCE OF
SPECIFIC LEGISLATION BY CONGRESS PROTECT THE PRIMARY ELECTION OR THE
NOMINATING CONVENTION.  WHILE THEY PROTECT THE RIGHT TO VOTE, AND THE
RIGHT TO HAVE ONE'S VOTE COUNTED, AT THE FINAL ELECTION, AS HELD IN THE
YARBROUGH AND MOSLEY CASES, THEY CERTAINLY DO NOT PER SE EXTEND TO ALL
ACTS WHICH IN THEIR INDIRECT OR INCIDENTAL EFFECT RESTRAIN, RESTRICT,
OR INTERFERE WITH THAT CHOICE.  BRIBERY OF VOTERS AT A GENERAL ELECTION
CERTAINLY IS AN INTERFERENCE WITH THAT FREEDOM OF CHOICE.  IT IS A
CORRUPTIVE INFLUENCE WHICH FOR ITS IMPACT ON THE ELECTION PROCESS IS AS
INTIMATE AND DIRECT AS THE ACTS CHARGED IN THIS INDICTMENT.  AND
CONGRESS HAS AMPLE POWER TO DEAL WITH IT.  BUT THIS COURT IN UNITED
STATES V. BATHGATE, 246 U.S. 220, BY A UNANIMOUS VOTE, HELD THAT
CONSPIRACIES TO BRIBE VOTERS AT A GENERAL ELECTION WERE NOT COVERED BY
SEC. 19.  WHILE THE CONCLUSION IN THAT CASE MAY BE RECONCILED WITH THE
RESULTS IN THE YARBROUGH AND MOSLEY CASES ON THE GROUND THAT THE RIGHT
TO VOTE AT A GENERAL ELECTION IS PERSONAL WHILE THE BRIBERY OF VOTERS
ONLY INDIRECTLY AFFECTS THAT PERSONAL RIGHT, THAT DISTINCTION IS NOT OF
AID HERE.  FOR THE FAILURE TO COUNT VOTES CAST AT A PRIMARY HAS BY THE
SAME TOKEN ONLY AN INDIRECT EFFECT ON THE VOTING AT THE GENERAL
ELECTION.  IN TERMS OF CAUSAL EFFECT, TAMPERING WITH THE PRIMARY VOTE
MAY BE AS IMPORTANT ON THE OUTCOME OF THE GENERAL ELECTION AS BRIBERY
OF VOTERS AT THE GENERAL ELECTION ITSELF.  CERTAINLY FROM THE VIEWPOINT
OF THE INDIVIDUAL VOTER THERE IS AS MUCH A DILUTION OF HIS VOTE IN THE
ONE CASE AS IN THE OTHER.  SO, IN LIGHT OF THE MOSLEY AND BATHGATE
CASES, THE TEST UNDER SEC. 19 IS NOT WHETHER THE ACTS IN QUESTION
CONSTITUTE AN INTERFERENCE WITH THE EFFECTIVE CHOICE OF THE VOTERS.  IT
IS WHETHER THE VOTERS ARE DEPRIVED OF THEIR VOTES IN THE GENERAL
ELECTION.  SUCH A TEST COMPORTS WITH THE STANDARDS FOR CONSTRUCTION OF
A CRIMINAL LAW, SINCE IT RESTRICTS SEC. 19 TO PROTECTION OF THE RIGHTS
PLAINLY AND DIRECTLY GUARANTEED BY THE CONSTITUTION.  ANY OTHER TEST
ENTAILS AN INQUIRY INTO THE INDIRECT OR INCIDENTAL EFFECT ON THE
GENERAL ELECTION OF THE ACTS DONE.  BUT IN VIEW OF THE GENERALITY OF
THE WORDS EMPLOYED, SUCH A TEST WOULD BE INCOMPATIBLE WITH THE CRITERIA
APPROPRIATE FOR A CRIMINAL CASE. 

THE MOSLEY CASE, IN MY VIEW, WENT TO THE VERGE WHEN IT HELD THAT SEC.
19 AND THE RELEVANT CONSTITUTIONAL PROVISIONS MADE IT A CRIME TO FAIL
TO COUNT VOTES CAST AT A GENERAL ELECTION.  THAT CONGRESS INTENDED SEC.
19 TO HAVE THAT EFFECT WAS NONE TOO CLEAR.  THE DISSENTING OPINION OF
MR. JUSTICE LAMAR IN THAT CASE POINTS OUT THAT SEC. 19 WAS ORIGINALLY
PART OF THE ENFORCEMENT ACT OF MAY 31, 1870, C. 114, SEC. 6, 16 STAT.
140.  UNDER ANOTHER SECTION OF THAT ACT (SEC. 4), WHICH WAS REPEALED BY
THE ACT OF FEBRUARY 8, 1894(28 STAT. 36), THE CRIME CHARGED IN THE
MOSLEY CASE WOULD HAVE BEEN PUNISHABLE BY A FINE OF NOT LESS THAN $500
AND IMPRISONMENT FOR 12 MONTHS.  FN2 UNDER SEC. 19 IT CARRIED, AS IT
STILL DOES, A PENALTY OF $5000 AND TEN YEARS IN PRISON.  THE COMMITTEE
REPORT (H. REP. NO. 18, 53D CONG., 1ST SESS.), WHICH RECOMMENDED THE
REPEAL OF OTHER SECTIONS, CLEARLY INDICATED AN INTENT TO REMOVE THE
HAND OF THE FEDERAL GOVERNMENT FROM SUCH ELECTIONS AND TO RESTORE THEIR
CONDUCT AND POLICING TO THE STATES.  AS THE REPORT STATED (P. 7): "LET
EVERY TRACE OF THE RECONSTRUCTION MEASURES BE WIPED FROM THE STATUTE
BOOKS; LET THE STATES OF THIS GREAT UNION UNDERSTAND THAT THE ELECTIONS
ARE IN THEIR OWN HANDS, AND IF THERE BE FRAUD, COERCION, OR FORCE USED
THEY WILL BE THE FIRST TO FEEL IT.  RESPONDING TO A UNIVERSAL SENTIMENT
THROUGHOUT THE COUNTRY FOR GREATER PURITY IN ELECTIONS MANY OF OUR
STATES HAVE ENACTED LAWS TO PROTECT THE VOTER AND TO PURIFY THE
BALLOT.  THESE, UNDER THE GUIDANCE OF STATE OFFICERS, HAVE WORKED
EFFICIENTLY, SATISFACTORILY, AND BENEFICENTLY; AND IF THESE FEDERAL
STATUTES ARE REPEALED THAT SENTIMENT WILL RECEIVE AN IMPETUS WHICH, IF
THE CAUSE STILL EXISTS, WILL CARRY SUCH ENACTMENTS IN EVERY STATE IN
THE UNION."  IN VIEW OF THIS BROAD, COMPREHENSIVE PROGRAM OF REPEAL, IT
IS NOT EASY TO CONCLUDE THAT THE GENERAL LANGUAGE OF SEC. 19, WHICH WAS
NOT REPEALED, NOT ONLY CONTINUED IN EFFECT MUCH WHICH HAD BEEN REPEALED
BUT ALSO UPPED THE PENALTIES FOR CERTAIN OFFENSES WHICH HAD BEEN
EXPLICITLY COVERED BY ONE OF THE REPEALED SECTIONS.  MR. JUSTICE
HOLMES, WRITING FOR THE MAJORITY IN THE MOSLEY CASE, FOUND IN THE
LEGISLATIVE AND HISTORICAL SETTING OF SEC. 19 AND IN ITS REVISED FORM A
CONGRESSIONAL INTERPRETATION WHICH, IF SEC. 19 WERE TAKEN AT ITS FACE
VALUE, WAS THOUGHT TO AFFORD VOTERS IN FINAL CONGRESSIONAL ELECTIONS
GENERAL PROTECTION.  AND THAT VIEW IS A TENABLE ONE, SINCE SEC. 19
ORIGINALLY WAS PART OF AN ACT REGULATING GENERAL ELECTIONS, AND SINCE
THE ACTS CHARGED HAD A DIRECT RATHER THAN AN INDIRECT EFFECT ON THE
RIGHT TO VOTE AT A GENERAL ELECTION.    BUT AS STATED BY A UNANIMOUS
COURT IN UNITED STATES V. GRADWELL, SUPRA, P. 486, THE MOSLEY CASE
"FALLS FAR SHORT" OF MAKING SEC. 19 "APPLICABLE TO THE CONDUCT OF A
STATE NOMINATING PRIMARY."  INDEED, MR. JUSTICE HOLMES, THE AUTHOR OF
THE MOSLEY OPINION, JOINED WITH MR. JUSTICE MCREYNOLDS IN THE NEWBERRY
CASE IN HIS VIEW THAT CONGRESS HAD NO AUTHORITY UNDER ART. I, SEC. 4 OF
THE CONSTITUTION TO LEGISLATE ON PRIMARIES.  WHEN SEC. 19 WAS PART OF
THE ACT OF MAY 31, 1870, IT CERTAINLY WOULD NEVER HAVE BEEN CONTENDED
THAT IT EMBRACED PRIMARIES, FOR THEY WERE HARDLY KNOWN AT THAT TIME. 
FN3  IT IS TRUE THAT "EVEN A CRIMINAL STATUTE EMBRACES EVERYTHING WHICH
SUBSEQUENTLY FALLS WITHIN ITS SCOPE."  BROWDER V. UNITED STATES, 312
U.S. 335, 340.  YET THE ATTEMPT TO BRING UNDER SEC. 19 OFFENSES
"COMMITTED IN THE CONDUCT OF PRIMARY ELECTIONS OR NOMINATING CAUCUSES
OR CONVENTIONS" WAS REJECTED IN THE GRADWELL CASE, WHERE THIS COURT
SAID THAT IN ABSENCE OF LEGISLATION BY CONGRESS ON THE SUBJECT OF
PRIMARIES IT IS NOT FOR THE COURTS "TO ATTEMPT TO SUPPLY IT BY
STRETCHING OLD STATUTES TO NEW USES, TO WHICH THEY ARE NOT ADAPTED AND
FOR WHICH THEY WERE NOT INTENDED.  ...  THE SECTION OF THE CRIMINAL
CODE RELIED UPON, ORIGINALLY ENACTED FOR THE PROTECTION OF THE CIVIL
RIGHTS OF THE THEN LATELY ENFRANCHISED NEGRO, CANNOT BE EXTENDED SO AS
TO MAKE IT AN AGENCY FOR ENFORCING A STATE PRIMARY LAW."  243 U.S. PP.
488-489.  THE FACT THAT PRIMARIES WERE HARDLY KNOWN WHEN SEC. 19 WAS
ENACTED, THE FACT THAT IT WAS PART OF A LEGISLATIVE PROGRAM GOVERNING
GENERAL ELECTIONS, NOT PRIMARY ELECTIONS, THE FACT THAT IT HAS BEEN IN
NOWISE IMPLEMENTED BY LEGISLATION DIRECTED AT PRIMARIES, GIVE CREDENCE
TO THE UNANIMOUS VIEW IN THE GRADWELL CASE THAT SEC. 19 HAS NOT BY THE
MERE PASSAGE OF TIME TAKEN ON A NEW AND BROADENED MEANING.  AT LEAST IT
SEEMS PLAIN THAT THE DIFFICULTIES OF APPLYING THE HISTORICAL REASON
ADDUCED BY MR. JUSTICE HOLMES IN THE MOSLEY CASE TO BRING GENERAL
ELECTIONS WITHIN SEC. 19 ARE SO GREAT IN CASE OF PRIMARIES THAT WE HAVE
LEFT THE SAFETY ZONE OF INTERPRETATION OF CRIMINAL STATUTES WHEN WE
SUSTAIN THIS INDICTMENT.  IT IS ONE THING TO SAY, AS IN THE MOSLEY
CASE, THAT CONGRESS WAS LEGISLATING AS RESPECTS GENERAL ELECTIONS WHEN
IT PASSED SEC. 19.  THAT WAS THE FACT.  IT IS QUITE ANOTHER THING TO
SAY THAT CONGRESS BY LEAVING SEC. 19 UNMOLESTED FOR SOME SEVENTY YEARS
HAS LEGISLATED UNWITTINGLY ON PRIMARIES.  SEC. 19 WAS NEVER PART OF AN
ACT OF CONGRESS DIRECTED TOWARDS PRIMARIES.  THAT WAS NOT ITS ORIGINAL
FRAME OF REFERENCE.  THEREFORE, UNLIKE THE MOSLEY CASE, IT CANNOT BE
SAID HERE THAT SEC. 19 STILL COVERS PRIMARIES BECAUSE IT WAS ONCE AN
INTEGRAL PART OF PRIMARY LEGISLATION. 

FURTHERMORE, THE FACT THAT CONGRESS HAS LEGISLATED ONLY SPARINGLY AND
AT INFREQUENT INTERVALS EVEN ON THE SUBJECT OF GENERAL ELECTIONS
(UNITED STATES V. GRADWELL, SUPRA) SHOULD MAKE US HESITATE TO CONCLUDE
THAT BY MERE INACTION CONGRESS HAS TAKEN THE GREATER STEP, ENTERED THE
FIELD OF PRIMARIES, AND GONE FURTHER THAN ANY ANNOUNCED LEGISLATIVE
PROGRAM HAS INDICATED.  THE ACTS HERE CHARGED CONSTITUTE CRIMES UNDER
THE LOUISIANA STATUTE.  LA. ACT NO. 46, REG. SESS. 1940, SEC. 89.  IN
ABSENCE OF SPECIFIC CONGRESSIONAL ACTION WE SHOULD ASSUME THAT CONGRESS
HAS LEFT THE CONTROL OF PRIMARIES AND NOMINATING CONVENTIONS TO THE
STATES - AN ASSUMPTION PLAINLY IN LINE WITH THE COMMITTEE REPORT,
QUOTED ABOVE, RECOMMENDING THE REPEAL OF PORTIONS OF THE ENFORCEMENT
ACT OF MAY 31, 1870 SO AS TO PLACE THE DETAILS OF ELECTIONS IN STATE
HANDS.  THERE IS NO GROUND FOR INFERENCE IN SUBSEQUENT LEGISLATIVE
HISTORY THAT CONGRESS HAS DEPARTED FROM THAT POLICY BY SUPERIMPOSING
ITS OWN PRIMARY PENAL LAW ON THE PRIMARY PENAL LAWS OF THE STATES. 
RATHER, CONGRESS HAS BEEN FAIRLY CONSISTENT IN RECOGNIZING STATE
AUTONOMY IN THE FIELD OF ELECTIONS.  TO BE SURE, IT HAS OCCASIONALLY
LEGISLATED ON PRIMARIES.  FN4  BUT EVEN WHEN DEALING SPECIFICALLY WITH
THE NOMINATING PROCESS, IT HAS NEVER MADE ACTS OF THE KIND HERE IN
QUESTION A CRIME.  IN THIS CONNECTION IT SHOULD BE NOTED THAT THE BILL
WHICH BECAME THE HATCH ACT (53 STAT. 1147; 18 U.S.C. SEC. 61) CONTAINED
A SECTION WHICH MADE IT UNLAWFUL "FOR ANY PERSON TO INTIMIDATE,
THREATEN, OR COERCE, OR TO ATTEMPT TO INTIMIDATE, THREATEN, OR COERCE,
ANY OTHER PERSON FOR THE PURPOSE OF INTERFERING WITH THE RIGHT OF SUCH
OTHER PERSON TO VOTE OR TO VOTE AS HE MAY CHOOSE, OR OF CAUSING SUCH
OTHER PERSON TO VOTE FOR, OR NOT TO VOTE FOR, ANY CANDIDATE FOR THE
NOMINATION OF ANY PARTY AS ITS CANDIDATE" FOR VARIOUS FEDERAL OFFICES,
INCLUDING REPRESENTATIVES, "AT ANY PRIMARY OR NOMINATING CONVENTION
HELD SOLELY OR IN PART" FOR THAT PURPOSE.  THIS WAS STRICKEN IN THE
SENATE.  84 CONG. REC., PT. 4, 76TH CONG., 1ST SESS., P. 4191.  THAT
NOMINATING CONVENTION AS SEC. 1 OF THE HATCH ACT FN5  EXTENDS TO THE
GENERAL ELECTION.  THE SENATE, HOWEVER, REFUSED TO DO SO.  YET THIS
COURT NOW HOLDS THAT SEC. 19 HAS PROTECTED THE PRIMARY VOTE ALL ALONG
AND THAT IT COVERS CONSPIRACIES TO DO THE PRECISE THING ON WHICH
CONGRESS REFUSED TO LEGISLATE IN 1939.  THE HESITATION ON THE PART OF
CONGRESS THROUGH THE YEARS TO ENTER THE PRIMARY FIELD, ITS REFUSAL TO
DO SO  FN6  IN 1939, AND THE RESTRICTED SCOPE OF SUCH PRIMARY LAWS AS
IT HAS PASSED, SHOULD BE AMPLE EVIDENCE THAT THIS COURT IS LEGISLATING
WHEN IT TAKES THE INITIATIVE IN EXTENDING SEC. 19 TO PRIMARIES. 

WE SHOULD ADHERE TO THE STRICT CONSTRUCTION GIVEN TO SEC. 19 BY A
UNANIMOUS COURT IN UNITED STATES V. BATHGATE, 246 U.S. 220, 226, WHERE
IT WAS SAID:  "SECTION 19, CRIMINAL CODE, OF COURSE, NOW HAS THE SAME
MEANING AS WHEN FIRST ENACTED  ...  AND CONSIDERING THE POLICY OF
CONGRESS NOT TO INTERFERE WITH ELECTIONS WITHIN A STATE EXCEPT BY CLEAR
AND SPECIFIC PROVISIONS, TOGETHER WITH THE RULE RESPECTING CONSTRUCTION
OF CRIMINAL STATUTES, WE CANNOT THINK IT WAS INTENDED TO APPLY TO
CONSPIRACIES TO BRIBE VOTERS."  THAT LEADS TO THE CONCLUSION THAT SEC.
19 AND THE RELEVANT CONSTITUTIONAL PROVISIONS SHOULD BE READ SO AS TO
EXCLUDE ALL ACTS WHICH DO NOT HAVE THE DIRECT EFFECT OF DEPRIVING
VOTERS OF THEIR RIGHT TO VOTE AT GENERAL ELECTIONS.  THAT VIEW HAS
RECEIVED TACIT RECOGNITION BY CONGRESS.  FOR THE HISTORY OF LEGISLATION
GOVERNING FEDERAL ELECTIONS SHOWS THAT THE OCCASIONAL ACTS OF CONGRESS
FN7  ON THE SUBJECT HAVE BEEN PRIMARILY DIRECTED TOWARDS SUPPLYING
DETAILED REGULATIONS DESIGNED TO PROTECT THE INDIVIDUAL'S
CONSTITUTIONAL RIGHT TO VOTE AGAINST POLLUTION AND CORRUPTION.  THOSE
LAWS, THE LATEST OF WHICH IS SEC. 1 OF THE HATCH ACT, ARE AMPLE
RECOGNITION BY CONGRESS ITSELF THAT SPECIFIC LEGISLATION IS NECESSARY
IN ORDER TO PROTECT THE ELECTORAL PROCESS AGAINST THE WIDE VARIETY OF
ACTS WHICH IN THEIR INDIRECT OR INCIDENTAL EFFECT INTERFERE WITH THE
VOTER'S FREEDOM OF CHOICE AND CORRUPT THE ELECTORAL PROCESS.  THEY ARE
EVIDENCE THAT DETAILED REGULATIONS ARE ESSENTIAL IN ORDER TO REACH ACTS
WHICH DO NOT DIRECTLY INTERFERE WITH THE VOTING PRIVILEGE.  THEY ARE
INCONSISTENT WITH THE NOTIONS IN THE OPINION OF THE COURT THAT THE
CONSTITUTION, UNAIDED BY DEFINITE SUPPLEMENTARY LEGISLATION, PROTECTS
THE METHODS BY WHICH PARTY CANDIDATES ARE NOMINATED. 

THAT SEC. 19 LACKS THE REQUISITE SPECIFICITY NECESSARY FOR INCLUSION
OF ACTS WHICH INTERFERE WITH THE NOMINATION OF PARTY CANDIDATES IS
REEMPHASIZED BY THE TEST HERE EMPLOYED.  THE OPINION OF THE COURT
STRESSES, AS DOES THE INDICTMENT, THAT THE WINNER OF THE DEMOCRATIC
PRIMARY IN LOUISIANA INVARIABLY CARRIES THE GENERAL ELECTION.  IT IS
ALSO EMPHASIZED THAT A CANDIDATE DEFEATED IN THE LOUISIANA PRIMARIES
CANNOT BE A CANDIDATE AT THE GENERAL ELECTION.  HENCE, IT IS ARGUED
THAT INTERFERENCE WITH THE RIGHT TO VOTE IN SUCH A PRIMARY IS "AS A
MATTER OF LAW AND IN FACT AN INTERFERENCE WITH THE EFFECTIVE CHOICE OF
THE VOTERS AT THE ONLY STAGE OF THE ELECTION PROCEDURE WHEN THEIR
CHOICE IS OF SIGNIFICANCE," AND THAT THE "PRIMARY IN LOUISIANA IS AN
INTEGRAL PART OF THE PROCEDURE FOR THE POPULAR CHOICE" OF
REPRESENTATIVES.  BY THAT MEANS, THE GRADWELL CASE IS APPARENTLY
DISTINGUISHED.  BUT I DO NOT THINK IT IS A VALID DISTINCTION FOR THE
PURPOSES OF THIS CASE. 

ONE OF THE INDICTMENTS IN THE GRADWELL CASE CHARGED THAT THE
DEFENDANTS CONSPIRED TO PROCURE ONE THOUSAND UNQUALIFIED PERSONS TO
VOTE IN A WEST VIRGINIA PRIMARY FOR THE NOMINATION OF A UNITED STATES
SENATOR.  THIS COURT, BY A UNANIMOUS VOTE, AFFIRMED THE JUDGMENT WHICH
SUSTAINED A DEMURRER TO THAT INDICTMENT.  THE COURT SPECIFICALLY
RESERVED THE QUESTION AS TO WHETHER A "PRIMARY SHOULD BE TREATED AS AN
ELECTION WITHIN THE MEANING OF THE CONSTITUTION."  BUT IT WENT ON TO
SAY THAT, EVEN ASSUMING IT WERE, CERTAIN "STRIKINGLY UNUSUAL FEATURES"
OF THE PARTICULAR PRIMARY PRECLUDED SUCH A HOLDING IN THAT CASE.  IT
NOTED THAT CANDIDATES OF CERTAIN PARTIES WERE EXCLUDED FROM THE
PRIMARY, AND THAT EVEN CANDIDATES WHO WERE DEFEATED AT THE PRIMARY
COULD ON CERTAIN CONDITIONS BE NOMINATED FOR THE GENERAL ELECTION.  IT
THEREFORE CONCLUDED THAT WHATEVER POWER CONGRESS MIGHT HAVE TO CONTROL
SUCH PRIMARIES, IT HAD NOT DONE SO BY SEC. 19. 

IF THE GRADWELL CASE IS TO SURVIVE, AS I THINK IT SHOULD, WE HAVE
THEREFORE THIS RATHER CURIOUS SITUATION.  PRIMARIES IN STATES WHERE THE
WINNER INVARIABLY CARRIES THE GENERAL ELECTION ARE PROTECTED BY SEC. 19
AND THE CONSTITUTION, EVEN THOUGH SUCH PRIMARIES ARE NOT BY LAW AN
INTEGRAL PART OF THE ELECTION PROCESS.  PRIMARIES IN STATES WHERE THE
SUCCESSFUL CANDIDATE NEVER WINS, SELDOM WINS, OR MAY NOT WIN IN THE
GENERAL ELECTION ARE NOT SO PROTECTED, UNLESS PERCHANCE STATE LAW MAKES
SUCH PRIMARIES AN INTEGRAL PART OF THE ELECTION PROCESS.  CONGRESS,
HAVING A BROAD CONTROL OVER PRIMARIES, MIGHT CONCEIVABLY DRAW SUCH
DISTINCTIONS IN A PENAL CODE.  BUT FOR US TO DRAW THEM UNDER SEC. 19 IS
QUITE ANOTHER MATTER.  FOR WE MUST GO OUTSIDE THE STATUTE, EXAMINE
LOCAL LAW AND LOCAL CUSTOMS, AND THEN, ON THE BASIS OF THE LEGAL OR
PRACTICAL IMPORTANCE OF A PARTICULAR PRIMARY, INTERPRET THE VAGUE
LANGUAGE OF SEC. 19 IN THE LIGHT OF THE SIGNIFICANCE OF THE ACTS DONE. 
THE RESULT IS TO MAKE REFINED AND NICE DISTINCTIONS WHICH CONGRESS
CERTAINLY HAS NOT MADE, TO CREATE UNEVENNESS IN THE APPLICATION OF SEC.
19 AMONG THE VARIOUS STATES, AND TO MAKE THE EXISTENCE OF A CRIME
DEPEND, NOT ON THE PLAIN MEANING OF WORDS EMPLOYED INTERPRETED IN LIGHT
OF THE LEGISLATIVE HISTORY OF THE STATUTE, BUT ON THE RESULT OF
RESEARCH INTO LOCAL LAW OR LOCAL PRACTICES.  UNLESS CONGRESS HAS
EXPLICITLY MADE A CRIME DEPENDENT ON SUCH FACTS, WE SHOULD NOT
UNDERTAKE TO DO SO.  SUCH PROCEDURE DOES NOT COMPORT WITH THE STRICT
STANDARDS ESSENTIAL FOR THE INTERPRETATION OF A CRIMINAL LAW.  THE
NECESSITY OF RESORTING TO SUCH A CIRCUITOUS ROUTE IS SUFFICIENT
EVIDENCE TO ME THAT WE ARE PERFORMING A LEGISLATIVE FUNCTION IN FINDING
HERE A DEFINITION OF A CRIME WHICH WILL SUSTAIN THIS INDICTMENT.  A
CRIME, NO MATTER HOW OFFENSIVE, SHOULD NOT BE SPELLED OUT FROM SUCH
VAGUE INFERENCES. 

FN1  WHILE SEC. 19 ALSO REFERS TO "LAWS OF THE UNITED STATES," SEC.
19 AND SEC. 20 ARE THE ONLY STATUTES DIRECTLY IN POINT. 

FN2  SEC. 5506, REV. STAT.:  "EVERY PERSON WHO, BY ANY UNLAWFUL
MEANS, HINDERS, DELAYS, PREVENTS, OR OBSTRUCTS, OR COMBINES AND
CONFEDERATES WITH OTHERS TO HINDER, DELAY, PREVENT, OR OBSTRUCT, ANY
CITIZEN FROM DOING ANY ACT REQUIRED TO BE DONE TO QUALIFY HIM TO VOTE,
OR FROM VOTING AT ANY ELECTION  ...  SHALL BE FINED NOT LESS THAN FIVE
HUNDRED DOLLARS, OR BE IMPRISONED NOT LESS THAN ONE MONTH NOR MORE THAN
ONE YEAR, OR BE PUNISHED BY BOTH SUCH FINE AND IMPRISONMENT."  SEC.
5511 PROVIDED:  "IF, AT ANY ELECTION FOR REPRESENTATIVE OR DELEGATE IN
CONGRESS, ANY PERSON  ... KNOWINGLY RECEIVES THE VOTE OF ANY PERSON NOT
ENTITLED TO VOTE, OR REFUSES TO RECEIVE THE VOTE OF ANY PERSON ENTITLED
TO VOTE  ...  HE SHALL BE PUNISHED BY A FINE OF NOT MORE THAN FIVE
HUNDRED DOLLARS, OR BY IMPRISONMENT NOT MORE THAN THREE YEARS, OR BY
BOTH  ... " 

FN3  MERRIAM & OVERACKER, PRIMARY ELECTIONS (1928) CHS.  I-III, V;
SAIT, AMERICAN PARTIES & ELECTIONS (1927) CH. X; BROOKS, POLITICAL
PARTIES & ELECTORAL PROBLEMS (1933) CH. X. 

FN4  ACT OF JUNE 25, 1910, C. 392, 36 STAT. 822, AS AMENDED BY THE
ACT OF AUGUST 19, 1911, C. 33, 37 STAT. 25; ACT OF OCTOBER 16, 1918, C.
187, 40 STAT. 1013. 

FN5  "THAT IT SHALL BE UNLAWFUL FOR ANY PERSON TO INTIMIDATE,
THREATEN, OR COERCE, OR TO ATTEMPT TO INTIMIDATE, THREATEN, OR COERCE,
ANY OTHER PERSON FOR THE PURPOSE OF INTERFERING WITH THE RIGHT OF SUCH
OTHER PERSON TO VOTE OR TO VOTE AS HE MAY CHOOSE, OR OF CAUSING SUCH
OTHER PERSON TO VOTE FOR, OR NOT TO VOTE FOR, ANY CANDIDATE FOR THE
OFFICE OF PRESIDENT, VICE PRESIDENT, PRESIDENTIAL ELECTOR, MEMBER OF
THE SENATE, OR MEMBER OF THE HOUSE OF REPRESENTATIVES AT ANY ELECTION
HELD SOLELY OR IN PART FOR THE PURPOSE OF SELECTING A PRESIDENT, A VICE
PRESIDENT, A PRESIDENTIAL ELECTOR, OR ANY MEMBER OF THE SENATE OR ANY
MEMBER OF THE HOUSE OF REPRESENTATIVES, DELEGATES OR COMMISSIONERS FROM
THE TERRITORIES AND INSULAR POSSESSIONS."    FN6  SEC. 2 OF THE HATCH
ACT, HOWEVER, DOES MAKE UNLAWFUL CERTAIN ACTS OF ADMINISTRATIVE
EMPLOYEES EVEN IN CONNECTION WITH THE NOMINATIONS FOR CERTAIN FEDERAL
OFFICES.  AND SEE 54 STAT. 767, NO. 753, CH. 640, 76TH CONG., 3D SESS.
AS TO THE POWER OF CONGRESS CVER EMPLOYEES OR OFFICERS OF THE
GOVERNMENT, SEE UNITED STATES V. WURZBACH, 280 U.S. 396. 

FN7  SEE FOR EXAMPLE, ACT OF MAY 31, 1870, 16 STAT. 140; ACT OF JULY
14, 1870, 16 STAT. 254, 255-256; ACT OF FEB. 28, 1871, 16 STAT. 433;
ACT OF JUNE 25, 1910, 36 STAT. 822; ACT OF AUGUST 19, 1911, 37 STAT.
25; ACT OF AUGUST 23, 1912, 37 STAT. 360; ACT OF OCTOBER 16, 1918, 40
STAT. 1013; FEDERAL CORRUPT PRACTICES ACT, 1925, 43 STAT. 1070; HATCH
ACT, AUGUST 2, 1939, 53 STAT. 1147.    MR. JUSTICE BLACK AND MR.
JUSTICE MURPHY JOIN IN THIS DISSENT. 
..END :























HOLIDAY V. JOHNSTON, 313 U.S. 342 


NO. 14, ORIGINAL.  ARGUED MAY 5, 6, 1941.  - DECIDED MAY 26, 1941.  -
REVERSED. 


1.  THE ERRONEOUS IMPOSITION OF TWO SENTENCES FOR A SINGLE OFFENSE OF
WHICH THE ACCUSED HAS BEEN CONVICTED, OR AS TO WHICH HE HAS PLEADED
GUILTY, DOES NOT CONSTITUTE DOUBLE JEOPARDY.  P. 349. 

2.  A PRISONER WHILE SERVING A VALID SENTENCE CAN NOT BY HABEAS
CORPUS ATTACK A SECOND SENTENCE FOR THE SAME OFFENSE TIMED TO BEGIN AT
THE END OF THE FIRST, ALTHOUGH THE SECOND MUST BE VACATED BEFORE HE CAN
APPLY FOR PAROLE UNDER THE FIRST.  P. 349. 

HIS REMEDY IS TO APPLY FOR VACATION OF THE SENTENCE AND FOR A RE
SENTENCE IN CONFORMITY WITH THE STATUTE UNDER WHICH HE WAS ADJUDGED
GUILTY. 

3.  PETITIONS FOR HABEAS CORPUS ARE NOT TO BE REGARDED METICULOUSLY;
AND, EVEN IF INSUFFICIENT IN SUBSTANCE, MAY BE AMENDED IN THE INTEREST
OF JUSTICE.  P. 350. 

IN THE PRESENT INSTANCE, THE DISTRICT JUDGE, BY REGARDING THE
PETITION, TRAVERSE, AND RETURN AS MAKING ISSUES OF FACT JUSTIFYING THE
TAKING OF EVIDENCE, DID NOT ABUSE HIS DISCRETION. 

4.  UNDER THE HABEAS CORPUS STATUTE, THE DISTRICT JUDGE MUST HIMSELF
HEAR THE PRISONER'S TESTIMONY AND IN THE LIGHT OF IT AND OTHER
TESTIMONY MUST FIND THE FACTS AND BASE HIS DISPOSITION OF THE CASE UPON
HIS FINDINGS.  P. 351. 

A PRACTICE OF COMMANDING THAT THE PRISONER BE TAKEN BEFORE A
COMMISSIONER TO TAKE EVIDENCE AND REPORT AND OF DISPOSING OF THE CASE
UPON THE RECORD MADE BEFORE THE COMMISSIONER, CAN NOT BE SUSTAINED
BECAUSE OF ITS CONVENIENCE OR BECAUSE IT IS A PRACTICE OF LONG STANDING
WHICH HAS FOUND ITS PLACE IN A RULE OF COURT. 

5.  RULE 53 OF THE RULES OF CIVIL PROCEDURE DEALING WITH REFERENCES
TO MASTERS, HAS NO APPLICATION TO HABEAS CORPUS CASES.  P. 353. 

HOLIDAY V. JOHNSTON, WARDEN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 312 U.S. 673, TO REVIEW AN ORDER REFUSING A PETITION FOR
LEAVE TO APPEAL IN FORMA PAUPERIS FROM A JUDGMENT OF THE DISTRICT COURT
DISCHARGING A WRIT OF HABEAS CORPUS. 

THE COURT HAS JURISDICTION (IN RE 620 CHURCH STREET CORP., 299 U.S.
24, 26), AND ALSO THE POWER TO PROCEED IN FORMA PAUPERIS.  28 U.S.C.
832.  EVEN THOUGH THE TECHNICAL ISSUE BEFORE THE COURT MAY BE ONLY
WHETHER THE CIRCUIT COURT OF APPEALS ABUSED ITS DISCRETION IN DENYING
AN APPEAL IN FORMA PAUPERIS, NEVERTHELESS, FOR MANY REASONS, THE COURT
SHOULD NOW PASS ON THE MERITS OF THE ISSUES RAISED. 

THE WRIT WAS NOT VALID.  IT DID NOT COMPLY WITH THE PROVISIONS OF THE
STATUTE REQUIRING THE PRODUCTION OF THE PETITIONER "BEFORE THE JUDGE
WHO GRANTED THE WRIT," R.S. SEC. 758, NOR WITH THE REQUIREMENT THAT THE
JUDGE SHALL DETERMINE THE FACTS BY HEARING THE TESTIMONY.  R.S. SEC.
761. 

A UNITED STATES COMMISSIONER HAS NOT A JUDGE'S AUTHORITY.  GRIN V.
SHINE, 187 U.S. 181, DISTINGUISHED. 

THE PROCEDURE OF A COMMISSIONER'S REPORT IS COMPLETELY INCONSISTENT
WITH THE POLICY EXPRESSED IN RECENT DECISIONS OF THIS COURT. 

RULE 53 OF THE RULES OF CIVIL PROCEDURE IS NOT APPLICABLE. 

EVEN IF THE REFERENCE TO A SPECIAL MASTER IN HABEAS CORPUS
PROCEEDINGS IS PROPER, THE COURT SHOULD NOT SANCTION THE MANNER IN
WHICH THE DEVICE WAS UTILIZED HERE.  THE HEARING WAS HELD IN PRISON -
CERTAINLY NOT "JUDICIAL" PROCEDURE.  THE COMMISSIONER BASED HIS
DECISION ON PLAIN ERRORS OF LAW, WHICH ARE DEMONSTRABLY PREJUDICIAL AND
NOT CURED BY THE DISTRICT COURT.  THE DISTRICT COURT MADE NO FINDINGS
OF FACT.  THE HEARING ON THE "APPROVAL" OF THE REPORT WAS APPARENTLY EX
PARTE. 

ON THE FACTS STATED, THERE IS PLAINLY A DENIAL OF THE ASSISTANCE OF
COUNSEL GUARANTEED IN THE FIFTH AND SIXTH AMENDMENTS TO THE
CONSTITUTION. 

THE CASE IS CONTROLLED BY WALKER V. JOHNSTON, 312 U.S. 275, AND
JOHNSON V. ZERBST, 304 U.S. 458. 

THAT THE CONSECUTIVE SENTENCES PUNISH PETITIONER TWICE FOR THE SAME
OFFENSE IS ADMITTED BY THE GOVERNMENT.  THE QUESTION OF WHICH SENTENCE
IS VALID IS PROPERLY BEFORE THE COURT, INASMUCH AS IT MUST BE
DETERMINED IN ORDER TO DECIDE WHETHER THE PETITION IS IN THIS RESPECT
PREMATURE.  THAT QUESTION MUST BE RESOLVED AGAINST THE VALIDITY OF THE
FIFTEEN-YEAR SENTENCE ON THE SECOND COUNT. 

THE PETITION AND TRAVERSE STATED NO CASE FOR THE ISSUANCE OF THE
WRIT.  THE PETITION FOR THE WRIT ATTACKED THE LEGALITY OF THE DETENTION
ON TWO GROUNDS:  (1) THAT THE CUMULATIVE SENTENCES ON THE TWO COUNTS
CONSTITUTED DOUBLE JEOPARDY; AND (2) THAT THE JUDGMENT WAS IN CONFLICT
WITH THE SIXTH AMENDMENT BECAUSE THE RIGHT TO COUNSEL WAS DENIED.  THE
TRAVERSE ALLEGES NO NEW FACTS AND MAKES NO ADDITIONAL CONTENTIONS.  THE
PETITION WAS PREMATURE ON THE FIRST GROUND; AND, ON THE SECOND, THE
FACTS ALLEGED ARE LEGALLY INSUFFICIENT TO ENTITLE THE PETITIONER TO
RELIEF.  HENCE, THERE WAS NO OCCASION TO ISSUE A WRIT OF HABEAS CORPUS
(WALKER V. JOHNSTON, 312 U.S. 275) AND THE APPLICATION WAS PROPERLY
DISMISSED. 

THE PROCEDURE WAS EQUIVALENT TO A REFERENCE TO THE COMMISSIONER TO
HEAR AND REPORT THE TESTIMONY, WITH FINDINGS OF FACT AND CONCLUSIONS OF
LAW. 

THE PROCEDURE WAS IN KEEPING WITH THE HISTORIC PRACTICE OF THE
FEDERAL COURTS FOR CALIFORNIA.  THE REFERENCE OF ISSUES OF FACT ARISING
IN HABEAS CORPUS PROCEEDINGS TO A UNITED STATES COMMISSIONER TO HEAR
THE EVIDENCE AND REPORT FINDINGS ORIGINATED LONG AGO AS A RESPONSE TO
THE TREMENDOUS NUMBER OF PETITIONS FILED IN CHINESE EXCLUSION CASES. 
DECISIONS OF THE PERIOD REFER TO SUCH REFERENCES AS "THE ESTABLISHED
PRACTICE" OF THE DISTRICT COURT.  WE ARE NOT AWARE THAT IT WAS EVER
QUESTIONED, THOUGH IT WAS FOLLOWED IN AT LEAST TWO CASES WHICH REACHED
THIS COURT.  CF., NISHIMURA EKIU V. UNITED STATES, 142 U.S. 651, 652,
656; UNITED STATES V. JU TOY, 198 U.S. 253, 264. 

THE FEDERAL COURTS IN CALIFORNIA HAVE REFERRED ISSUES OF FACT TO
COMMISSIONERS IN HABEAS CORPUS CASES FOR MORE THAN FIFTY YEARS AND THE
ISSUANCE OF A WRIT RETURNABLE BEFORE A COMMISSIONER IS A TRADITIONAL
EQUIVALENT OF SUCH AN ORDER OF REFERENCE. 

THE STATUTORY COMMAND THAT THE COURT "SHALL PROCEED IN A SUMMARY WAY
TO DETERMINE THE FACTS OF THE CASE, BY HEARING THE TESTIMONY AND
ARGUMENTS" DOES NOT PRECLUDE A REFERENCE TO A MASTER TO HEAR AND REPORT
THE TESTIMONY WITH HIS FINDINGS OF FACT AND CONCLUSIONS OF LAW - SO
LONG AS THE ACTUAL ADJUDICATION IS MADE BY THE COURT. 

THE EQUITY PRACTICE IS PECULIARLY PERSUASIVE IN THE PRESENT CONTEXT
BECAUSE IN ENGLAND - AT LEAST SINCE THE HABEAS CORPUS ACT (31 CAR.  II,
C. 2) - THE WRIT OF HABEAS CORPUS ISSUED OUT OF CHANCERY AS WELL AS THE
LAW COURTS.  CF. PEOPLE EX REL. WOODBURY V. HENDRICK, 215 N.Y. 339,
346.  THE ANALOGY OF EQUITY HAS BEEN OBSERVED BY THIS COURT.  STORTI V.
MASSACHUSETTS, 183 U.S. 138, 143; SEE ALSO EX PARTE ROYALL, 117 U.S.
241, 251.  IF A REFERENCE WERE IMPOSSIBLE UNDER THE STATUTE, IT IS
DIFFICULT TO SEE HOW THIS COURT COULD EVER PRACTICALLY EXERCISE ITS
POWER TO ISSUE AN ORIGINAL WRIT OF HABEAS CORPUS IF ISSUES OF FACT WERE
INVOLVED.  THE MANDATE OF THE STATUTE "IS APPLICABLE TO THIS COURT
WHETHER IT IS EXERCISING ITS ORIGINAL OR APPELLATE JURISDICTION." 
STORTI V. MASSACHUSETTS, SUPRA. 

THERE IS ENGLISH PRECEDENT, AND PRIOR TO THE FEDERAL STATUTE, FOR
ORDERING A REFERENCE (THE CASE OF THE HOTTENTOT VENUS, 13 EAST 194);
THE PRACTICE OF TAKING THE VERDICT OF A JURY APPEARS TO BE MORE
COMMON.  IN THE MATTER OF ANDREWS, 8 Q.B. 153, 160; RE GUERIN, 60 L.T.
538, 542N.; RE GIBSON, 15 ONT.  L.R. 245, 247; SEE IN RE HAKEWILL, 12
C.B. 223, 228.  BOTH PRACTICES HAVE BEEN FOLLOWED IN THE STATE COURTS,
ESPECIALLY, THOUGH NOT EXCLUSIVELY, IN INFANT CUSTODY CASES.  NEITHER
HAS BEEN REGARDED AS DETRACTING FROM A JUDICIAL INQUIRY INTO THE FACTS
OR THE FUNCTION OF A HABEAS CORPUS HEARING. 

THE USE OF A MASTER OR COMMISSIONER IS NOT PRECLUDED IN OTHER
PROCEEDINGS WHICH MAY TERMINATE IN PUNISHMENT, NOTABLY IN THE CASE OF
CONTEMPT.  CF., UNITED STATES V. SHIPP, 214 U.S. 386; CHIN BAK KAN V.
UNITED STATES, 186 U.S. 193, 200; NG FUNG HO V. WHITE, 259 U.S. 276,
279. 

IF A REFERENCE IS NOT INCOMPATIBLE WITH THE HABEAS CORPUS STATUTE,
THE POWER TO REFER EXISTS IN THE INHERENT POWER OF FEDERAL COURTS "TO
PROVIDE THEMSELVES WITH APPROPRIATE INSTRUMENTS REQUIRED FOR THE
PERFORMANCE OF THEIR DUTIES" (EX PARTE PETERSON, 253 U.S. 300, 312), A
POWER BROADLY ARTICULATED IN RULE 53(A) OF THE RULES OF CIVIL
PROCEDURE. 

THERE WAS NO OBJECTION TO THE REFERENCE TO THE COMMISSIONER EITHER AT
THE HEARING OR IN COURT.  UNDER THESE CIRCUMSTANCES, IT IS CERTAINLY
TOO LATE TO CHALLENGE THE ACTION OF THE COURT ON A MATTER PECULIARLY
WITHIN ITS DISCRETION. 

MOREOVER, THERE IS AN "EXCEPTIONAL CONDITION" WELL KNOWN TO THE
DISTRICT COURT.  FROM JUNE 1, 1938 TO APRIL 1, 1941, THERE WERE 131
PETITIONS FOR WRITS OF HABEAS CORPUS FILED IN THE NORTHERN DISTRICT OF
CALIFORNIA BY PRISONERS IN ALCATRAZ PENITENTIARY, 75 BASED UPON THE
DECISION IN JOHNSON V. ZERBST, 304 U.S. 458, AND 3 UPON THE DECISION IN
WALKER V. JOHNSTON, 312 U.S. 275.  PRISONERS ARE SENT TO ALCATRAZ ONLY
IF THEY ARE REGARDED AS CUSTODIAL PROBLEMS, REQUIRING MAXIMUM
SECURITY.  THE HAZARDS OF ESCAPE ARE GREAT AND REQUIRE UNUSUAL
PRECAUTIONS FOR SAFE CUSTODY.  SEE FEDERAL OFFENDERS (1938) P. 95;
IBID. (1939) P. 30; ANNUAL REPORT OF THE ATTORNEY GENERAL (1935) P.
151.  THESE CONSIDERATIONS CONSTITUTE AN "EXCEPTIONAL CONDITION" AND
WOULD, IN OUR VIEW, JUSTIFY AN ORDER OF REFERENCE.  NOTHING IN RULE
53(B) INDICATES THAT THE "EXCEPTIONAL CONDITION" MUST APPEAR OF RECORD
WHEN IT IS WITHIN THE KNOWLEDGE OF THE COURT. 

THE PROCEDURE DID NOT OTHERWISE DEPRIVE THE PETITIONER OF ANY
SUBSTANTIAL RIGHT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER APPLIED TO THE DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA FOR A WRIT OF HABEAS CORPUS.  HIS PETITION
ALLEGED THAT HE WAS UNLAWFULLY DETAINED BY THE RESPONDENT IN ALCATRAZ
PENITENTIARY; THAT HE HAD BEEN INDICTED IN THE DISTRICT COURT FOR NORTH
DAKOTA UNDER AN ACT OF MAY 18, 1934, SEC. 2,  FN1  THE INDICTMENT BEING
IN TWO COUNTS, ONE FOR ROBBERY OF AN INSURED BANK AND THE OTHER FOR
JEOPARDIZING THE LIVES OF OFFICIALS OF THE BANK IN THE COURSE OF THE
ROBBERY; THAT HE PLEADED GUILTY TO BOTH COUNTS AND WAS SENTENCED TO TEN
YEARS UNDER THE FIRST AND TO FIFTEEN YEARS UNDER THE SECOND,
"COMMENCING AT THE EXPIRATION OF THE SENTENCE IMPOSED UNDER COUNT
ONE."  THE PETITION CHARGED THAT HE WAS UNLAWFULLY DETAINED BECAUSE HE
WAS TRIED WITHOUT THE ADVICE AND ASSISTANCE OF COUNSEL, WAS IGNORANT OF
HIS RIGHT TO HAVE COUNSEL ALTHOUGH UNABLE TO PAY FOR AN ATTORNEY, WAS
NOT ADVISED BY THE COURT THAT HE WAS ENTITLED TO COUNSEL, AND WAS
UNABLE TO, AND DID NOT, INTELLIGENTLY WAIVE HIS CONSTITUTIONAL RIGHT TO
HAVE COUNSEL.  THE PETITION ALLEGED THAT THE TWO COUNTS OF THE
INDICTMENT CHARGED BUT ONE OFFENSE AND THAT THE PETITIONER WAS PLACED
IN DOUBLE JEOPARDY BY THE IMPOSITION OF THE CONSECUTIVE SENTENCES. 

THE COURT ISSUED A RULE ON THE RESPONDENT TO SHOW CAUSE WHY A WRIT
SHOULD NOT ISSUE.  THE RESPONDENT MADE RETURN SHOWING THAT THE
PETITIONER WAS HELD UNDER A COMMITMENT ISSUED PURSUANT TO HIS
CONVICTION UPON THE INDICTMENT IN QUESTION.  HE ATTACHED A CERTIFICATE
OF THE JUDGE WHO IMPOSED THE SENTENCE, ATTESTING TO HIS UNIFORM
PRACTICE OF INQUIRING OF PRISONERS CHARGED WITH FELONY WHETHER THEY
WANTED COUNSEL AND HIS FIRM BELIEF THAT HE SO INQUIRED OF THE
PETITIONER, AND THE AFFIDAVIT OF A DEPUTY MARSHAL TO THE EFFECT THAT
PETITIONER SAID HE DID NOT DESIRE COUNSEL. 

PETITIONER FILED A TRAVERSE IN WHICH HE DENIED THAT THE TRIAL JUDGE
HAD INTERROGATED HIM AS STATED AND DENIED THAT HE HAD MADE THE ALLEGED
STATEMENT TO THE DEPUTY MARSHAL.  THE DISTRICT JUDGE ISSUED A WRIT
COMMANDING THE RESPONDENT TO PRODUCE THE PETITIONER BEFORE A
COMMISSIONER OF THE DISTRICT COURT AT THE ALCATRAZ PRISON ON A DAY
NAMED.  THIS WAS DONE AND THE COMMISSIONER THERE TOOK THE PETITIONER'S
TESTIMONY AND LATER RECEIVED THE DEPOSITIONS OF TWO WITNESSES ON BEHALF
OF THE RESPONDENT.  THE COMMISSIONER SUBMITTED A REPORT IN WHICH HE
RECITED HIS PROCEEDINGS, SUMMARIZED THE ASSERTED GROUNDS FOR RELIEF,
MADE FINDINGS OF FACT, STATED CONCLUSIONS OF LAW, AND RECOMMENDED THAT
THE APPLICATION BE DENIED.  AFTER HEARING ARGUMENT ON THE REPORT THE
JUDGE ENTERED AN ORDER DISCHARGING THE WRIT. 

THE PETITIONER APPLIED FOR LEAVE TO APPEAL IN FORMA PAUPERIS.  THIS
WAS DENIED BY AN ORDER WHICH RECITED THAT, SO FAR AS THE PETITION WAS
BASED ON THE ALLEGED INVALIDITY OF THE SENTENCE ON THE SECOND COUNT OF
THE INDICTMENT IT WAS PREMATURE AND, SO FAR AS IT WAS GROUNDED ON THE
DEPRIVATION OF THE ASSISTANCE OF COUNSEL, THE EVIDENCE SUSTAINED THE
FINDING OF THE COMMISSIONER THAT THE PETITIONER HAD COMPETENTLY AND
INTELLIGENTLY WAIVED HIS RIGHT TO SUCH ASSISTANCE.  ACCORDINGLY, THE
JUDGE DENIED AN APPEAL FOR WANT OF MERIT IN THE APPLICATION. 

THE PETITIONER MOVED THE CIRCUIT COURT OF APPEALS FOR LEAVE TO APPEAL
IN FORMA PAUPERIS, WHICH WAS DENIED.  HE THEN PETITIONED THIS COURT FOR
CERTIORARI  FN2  AND FOR LEAVE TO PROCEED IN FORMA PAUPERIS.  BOTH
PETITIONS WERE GRANTED AND COUNSEL WAS APPOINTED TO REPRESENT HIM IN
THIS COURT. 

THE BURDEN OF PETITIONER'S COMPLAINT IS THAT THE PROCEDURE ADOPTED BY
THE DISTRICT COURT - THAT OF A HEARING BEFORE A COMMISSIONER AND THE
DISPOSITION OF THE CAUSE ON THE RECORD MADE BEFORE HIM - IS A PLAIN
VIOLATION OF THE ACTS OF CONGRESS REGULATING THE PRACTICE IN HABEAS
CORPUS CASES.  IN ADDITION, HE SEEKS A REVERSAL OF THE JUDGMENT ON THE
GROUND THAT THE SENTENCE ON THE SECOND COUNT IS VOID.  HE INSISTS THAT
HE IS ENTITLED TO A DECISION TO THIS EFFECT SO THAT HE MAY APPLY FOR
PAROLE UNDER THE SENTENCE IMPOSED ON THE FIRST COUNT. 

THE RESPONDENT ARGUES THAT WE NEED NOT CONSIDER THE QUESTION OF THE
REGULARITY OF THE HEARING IN HABEAS CORPUS, SINCE THE PETITION SHOULD
HAVE BEEN DENIED AS PREMATURE SO FAR AS IT RESTED ON THE ASSERTED
ILLEGALITY OF THE SENTENCE, AND SINCE THE DISTRICT COURT SHOULD HAVE
DISMISSED THE PETITION FOR INSUFFICIENCY OF THE ALLEGATIONS CONCERNING
THE DENIAL OF ASSISTANCE OF COUNSEL. 

1.  THE RESPONDENT ADMITS THAT SEC. 2 OF THE ACT OF MAY 18, 1934,
SUPRA, DOES NOT CREATE TWO SEPARATE CRIMES BUT PRESCRIBES ALTERNATIVE
SENTENCES FOR THE SAME CRIME DEPENDING UPON THE MANNER OF ITS
PERPETRATION.  THIS CONCESSION, HOWEVER, DOES NOT AID THE PETITIONER. 
THE ERRONEOUS IMPOSITION OF TWO SENTENCES FOR A SINGLE OFFENSE OF WHICH
THE ACCUSED HAS BEEN CONVICTED, OR AS TO WHICH HE HAS PLEADED GUILTY,
DOES NOT CONSTITUTE DOUBLE JEOPARDY.  AND IF, AS THE PETITIONER
CONTENDS, THE FIRST SENTENCE OF TEN YEARS IS VALID AND THE SECOND VOID,
HE IS NO BETTER OFF.  CONCEDING, WITHOUT DECIDING, THAT HE IS RIGHT IN
SAYING THE FIRST SENTENCE IS THE ONLY VALID ONE, HE HAS NOT SERVED THAT
SENTENCE AND IS NOT ENTITLED NOW TO BE DISCHARGED FROM CUSTODY UNDER
IT. HE URGES THAT IF THE SECOND SENTENCE IS ADJUDGED VOID HE WILL NOW
BE ENTITLED TO APPLY FOR PAROLE UNDER THE FIRST.  BUT WE HAVE RECENTLY
DECIDED THAT HABEAS CORPUS CANNOT BE AWARDED TO AFFORD A PRISONER SUCH
AN OPPORTUNITY.  FN3  HIS REMEDY IS TO APPLY FOR VACATION OF THE
SENTENCE AND A RESENTENCE IN CONFORMITY TO THE STATUTE UNDER WHICH HE
WAS ADJUDGED GUILTY.    2.  THE RESPONDENT'S CONTENTION THAT WE SHOULD
AFFIRM THE JUDGMENT BECAUSE THE PETITION FOR THE WRIT INSUFFICIENTLY
ALLEGES A DENIAL OF CONSTITUTIONAL RIGHT AND FAILS TO REBUT THE
PRESUMPTION OF REGULARITY WHICH ATTACHES TO THE RECORD OF PETITIONER'S
TRIAL AND CONVICTION MAY BE SHORTLY ANSWERED.  A PETITION FOR HABEAS
CORPUS OUGHT NOT TO BE SCRUTINIZED WITH TECHNICAL NICETY.  EVEN IF IT
IS INSUFFICIENT IN SUBSTANCE IT MAY BE AMENDED IN THE INTEREST OF
JUSTICE.  IN THE PRESENT INSTANCE, MOREOVER, THE JUDGE, BY CALLING ON
THE RESPONDENT TO SHOW CAUSE, ADJUDGED THAT, IN HIS VIEW, THE PETITION
WAS SUFFICIENT AND, BY REFERRING THE CAUSE TO A MASTER, EVINCED A
JUDGMENT THAT THE PETITION, THE RETURN, AND THE TRAVERSE MADE ISSUES OF
FACT JUSTIFYING THE TAKING OF EVIDENCE.  THESE DECISIONS DID NOT
CONSTITUTE AN ABUSE OF DISCRETION AND WE WILL NOT REVIEW THEM. 

3.  THE RESPONDENT INSISTS THAT THE PETITION WAS PREMATURE IF THE
PETITIONER'S CLAIM THAT HE WAS DENIED THE ASSISTANCE OF COUNSEL IS
WITHOUT MERIT, BUT THE CONTENTION IS PRESSED ONLY IF WE FIND THAT NO
QUESTION AS TO SUCH DENIAL IS PRESENTED. 

4.  WE COME THEN TO THE SERIOUS QUESTION IN THE CASE.  WAS THE METHOD
OF TRIAL OF THE FACT ISSUES PRESENTED BY THE PLEADINGS IN ACCORDANCE
WITH LAW? 

REVISED STATUTES SECS. 757, 758, AND 761  FN4  PRESCRIBE THE
PROCEDURE TO BE FOLLOWED.  THE FIRST REQUIRES THAT "THE PERSON TO WHOM
THE WRIT IS DIRECTED SHALL CERTIFY TO THE COURT, OR JUSTICE, OR JUDGE
BEFORE WHOM IT IS RETURNABLE THE TRUE CAUSE OF THE DETENTION OF SUCH
PARTY"; AND THE SECOND THAT:  "THE PERSON MAKING THE RETURN SHALL AT
THE SAME TIME BRING THE BODY OF THE PARTY BEFORE THE JUDGE WHO GRANTED
THE WRIT."  FN5  THE THIRD PROVIDES THAT:  "THE COURT, OR JUSTICE, OR
JUDGE SHALL PROCEED IN A SUMMARY WAY TO DETERMINE THE FACTS OF THE
CASE, BY HEARING THE TESTIMONY AND ARGUMENTS, AND THEREUPON TO DISPOSE
OF THE PARTY AS LAW AND JUSTICE REQUIRE." 

IT IS PLAIN, AS THE RESPONDENT CONCEDES, THAT A COMMISSIONER IS NOT A
JUDGE AND THAT THE COMMAND OF THE COURT'S WRIT THAT THE PETITIONER
APPEAR BEFORE THAT OFFICER WAS NOT A LITERAL COMPLIANCE WITH THE
STATUTE.  THE RESPONDENT ARGUES, HOWEVER, THAT THE WRIT IN EFFECT
REFERRED THE CAUSE TO THE COMMISSIONER AS A MASTER WHOSE FUNCTION WAS
TO TAKE THE TESTIMONY AND SUBMIT IT, TOGETHER WITH HIS FINDINGS AND
CONCLUSIONS, FOR SUCH ACTION AS THE COURT MIGHT TAKE UPON SUCH
SUBMISSION.  THE ARGUMENT RUNS THAT THIS PRACTICE IS IN SUBSTANCE
EQUIVALENT TO A HEARING BEFORE THE JUDGE IN HIS PROPER PERSON, HAS LONG
BEEN FOLLOWED IN THE DISTRICT COURTS IN CALIFORNIA, HAS NOT INCURRED
THE CRITICISM OF THIS COURT IN CASES BROUGHT HERE WHERE IT WAS
FOLLOWED, IS A CONVENIENT PROCEDURE, TENDS TO EXPEDITE THE DISPOSITION
OF SUCH CASES, IS IN ACCORDANCE WITH LONG STANDING EQUITY PRACTICE AND
IS COUNTENANCED BY RULE 53(A)(B) OF THE RULES OF CIVIL PROCEDURE.  FN6 

WE CANNOT SANCTION A DEPARTURE FROM THE PLAIN MANDATE OF THE STATUTE
ON ANY OF THE GROUNDS ADVANCED.  WE HAVE RECENTLY EMPHASIZED THE BROAD
AND LIBERAL POLICY ADOPTED BY CONGRESS RESPECTING THE OFFICE AND USE OF
THE WRIT OF HABEAS CORPUS IN THE INTEREST OF THE PROTECTION OF
INDIVIDUAL FREEDOM TO THE END THAT THE VERY TRUTH AND SUBSTANCE OF THE
CAUSE OF A PERSON'S DETENTION MAY BE DISCLOSED AND JUSTICE BE DONE. 
FN7  THE CONGRESS HAS SEEN FIT TO LODGE IN THE JUDGE THE DUTY OF
INVESTIGATION.  ONE OF THE ESSENTIAL ELEMENTS OF THE DETERMINATION OF
THE CRUCIAL FACTS IS THE WEIGHING AND APPRAISING OF THE TESTIMONY. 
PLAINLY IT WAS INTENDED THAT THE PRISONER MIGHT INVOKE THE EXERCISE OF
THIS APPRAISAL BY THE JUDGE HIMSELF.  WE CANNOT SAY THAT AN APPRAISAL
OF THE TRUTH OF THE PRISONER'S ORAL TESTIMONY BY A MASTER OR
COMMISSIONER IS, IN THE LIGHT OF THE PURPOSE AND OBJECT OF THE
PROCEEDING, THE EQUIVALENT OF THE JUDGE'S OWN EXERCISE OF THE FUNCTION
OF THE TRIER OF THE FACTS. 

THE CIRCUMSTANCE THAT THE PRACTICE HAS GROWN UP OF REFERRING SUCH
CAUSES TO A COMMISSIONER, HAS LONG BEEN INDULGED IN IN THE FEDERAL
COURTS OF CALIFORNIA, AND HAS FOUND A PLACE IN A RULE OF COURT, CANNOT
OVERCOME THE PLAIN COMMAND OF THE STATUTE.  IT IS TRUE THAT THE
PRACTICE WAS FOLLOWED IN CERTAIN DEPORTATION CASES WHICH WERE REVIEWED
BY THIS COURT, BUT, SO FAR AS APPEARS, NO POINT WAS MADE AS TO THE
PROCEDURE FOLLOWED IN THOSE CASES AND THE MATTER WAS PASSED WITHOUT
NOTICE. 

IT MAY BE THAT THE PRACTICE IS A CONVENIENT ONE, BUT, IF SO, THAT
CONSIDERATION IS FOR CONGRESS.  IN VIEW OF THE PLAIN TERMS IN WHICH THE
CONGRESSIONAL POLICY IS EVIDENCED IN THE HABEAS CORPUS ACT, THE COURTS
MAY NOT SUBSTITUTE ANOTHER MORE CONVENIENT MODE OF TRIAL. 

IT IS SAID THAT THE PROCEDURE TENDS TO EXPEDITE THE DISPOSITION OF
HABEAS CORPUS CASES.  THE RECORD IN THIS CASE WOULD SEEM TO CONTRADICT
THE ARGUMENT.  FN8  AND WHEN IT IS REMEMBERED THAT R.S. 756  FN9
REQUIRED THAT THE RETURN IN THIS CASE BE MADE WITHIN THREE DAYS OF THE
ISSUE OF THE WRIT, AND THAT R.S. 758, SUPRA, REQUIRED THE RESPONDENT TO
PRODUCE THE BODY AT THE SAME TIME HE MADE THE RETURN; THAT R.S. 759
FN10  COMMANDS THAT THE HEARING SHALL BE SET NOT MORE THAN FIVE DAYS
AFTER THE RETURN; AND THAT R.S. 761, SUPRA, ENJOINS THE JUDGE TO
PROCEED IN A SUMMARY WAY TO HEAR THE CAUSE AND DISPOSE OF THE
PETITIONER, IT IS DIFFICULT TO SEE HOW THE COMPARATIVELY CUMBERSOME AND
TIME-CONSUMING PROCEDURE OF REFERENCE, REPORT, AND HEARING UPON THE
REPORT, CAN BE THOUGHT A MORE EXPEDITIOUS METHOD THAN THAT PRESCRIBED
BY THE STATUTE. 

THE PRACTICE OF REFERRING EQUITY CAUSES TO MASTERS PRESENTS NO
PERSUASIVE ANALOGY.  THE SCOPE AND PURPOSE OF THE TWO PROCEEDINGS ARE
OBVIOUSLY DIFFERENT.  MOREOVER, WHEN CONGRESS PRESCRIBED THE PROCEDURE
IN HABEAS CORPUS THE PRACTICE OF REFERENCE TO MASTERS IN CHANCERY WAS
WELL KNOWN TO IT.  THE LEGISLATURE, NEVERTHELESS, SAW FIT TO REQUIRE A
DIFFERENT PROCEDURE IN HABEAS CORPUS CASES. 

FINALLY, THE SANCTION BY RULE 53 OF THE RULES OF CIVIL PROCEDURE OF
REFERENCES TO MASTERS DOES NOT AID IN THE DECISION OF THE QUESTION
PRESENTED.  RULE 81(A)(2) PROVIDES THAT APPEALS IN HABEAS CORPUS CASES
ARE TO BE GOVERNED BY THE RULES, BUT THAT THE RULES ARE NOT APPLICABLE
"OTHERWISE THAN ON APPEAL" IN HABEAS CORPUS CASES "EXCEPT TO THE EXTENT
THAT THE PRACTICE IN SUCH PROCEEDINGS IS NOT SET FORTH IN STATUTES OF
THE UNITED STATES AND HAS HERETOFORE CONFORMED TO THE PRACTICE IN
ACTIONS AT LAW OR SUITS IN EQUITY  ...  "  SINCE THE PRACTICE IN HABEAS
CORPUS IS SET FORTH IN PLAIN TERMS IN THE REVISED STATUTES, TO WHICH
REFERENCE HAS BEEN MADE, RULE 53 HAS NO APPLICATION. 

IN SUMMARY, WE HOLD THAT THE PROVISIONS OF THE HABEAS CORPUS ACT, AS
EMBODIED IN THE REVISED STATUTES, ARE TOO PLAIN TO BE DISREGARDED FOR
ANY OF THE REASONS ADVANCED.  THE DISTRICT JUDGE SHOULD HIMSELF HAVE
HEARD THE PRISONER'S TESTIMONY AND, IN THE LIGHT OF IT AND THE OTHER
TESTIMONY, HIMSELF HAVE FOUND THE FACTS AND BASED HIS DISPOSITION OF
THE CAUSE UPON HIS FINDINGS.  THE PETITIONER HAS NOT BEEN AFFORDED THE
RIGHT OF TESTIFYING BEFORE THE JUDGE, WHICH THE STATUTE PLAINLY ACCORDS
HIM.  IN ORDER THAT HE MAY HAVE THAT RIGHT WE REVERSE THE JUDGMENT AND
REMAND THE CAUSE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY TO THIS OPINION.  WE EXPRESS NO OPINION AS TO THE WEIGHT OR
SUFFICIENCY OF THE EVIDENCE HERETOFORE ADDUCED.  THE ISSUES OF FACT
WILL BE FOR SOLUTION BY THE DISTRICT COURT UPON A FURTHER HEARING. 
REVERSED. 

FN1  48 STAT. 783, 12 U.S.C. SEC. 588B. 

FN2  WE HAVE JURISDICTION UNDER SEC. 262 OF THE JUDICIAL CODE, 28
U.S.C. SEC. 377; IN RE 620 CHURCH STREET CORPORATION, 299 U.S. 24. 

FN3  MCNALLY V. HILL, 293 U.S. 131. 

FN4 28 U.S.C. SECS. 457, 458, 461. 

FN5  BOTH THESE SECTIONS ARE DERIVED FROM THE HABEAS CORPUS ACT OF
FEBRUARY 5, 1867, C. 28, 14 STAT. 385.  IN THE CODIFICATION THE
LANGUAGE OF THE ORIGINAL STATUTE WAS ALTERED TO INDICATE THAT THE
RETURN MIGHT BE MADE TO THE COURT, JUSTICE, OR JUDGE, WHEREAS, IN THE
ORIGINAL STATUTE, THE PROVISION IS THAT THE RESPONDENT "SHALL MAKE
RETURN OF SAID WRIT AND BRING THE PARTY BEFORE THE JUDGE WHO GRANTED
THE WRIT, AND CERTIFY THE TRUE CAUSE OF THE DETENTION OF SUCH PERSON
...  "  14 STAT. 386.  NOTHING IN THIS CASE TURNS ON THE DIVERSITY
BETWEEN THE LANGUAGE EMPLOYED IN THE STATUTE AND THAT FOUND IN THE
REVISION. 

FN6  28 U.S.C. FOLLOWING SEC. 723C. 

FN7  JOHNSON V. ZERBST, 304 U.S. 458; WALKER V. JOHNSTON, 312 U.S.
275. 

FN8  THE PETITION WAS FILED MAY 8, 1939.  THE ORDER TO SHOW CAUSE
ISSUED JUNE 29, 1939.  THE RETURN WAS PRESENTED JULY 10, 1939; THE
TRAVERSE JULY 31, 1939.  THE WRIT ISSUED DECEMBER 14, 1939.  THE
COMMISSIONER HELD HEARINGS ON DECEMBER 16, 1939, AND APRIL 30, 1940. 
HE FILED HIS REPORT MAY 23, 1940, AND THE JUDGE ENTERED AN ORDER
CONFIRMING THE REPORT AND DISCHARGING THE WRIT JULY 1, 1940.  NO
EXPLANATION IS VOUCHSAFED FOR WHAT SEEMS, IN VIEW OF THE PEREMPTORY
TERMS OF THE STATUTE, AN INORDINATE PROTRACTION OF THE PROCEEDING. 

FN9  28 U.S.C. SEC. 456. 

FN10  28 U.S.C. SEC. 459. 
..END :





BROOKS V. DEWAR, 313 U.S. 354 


NO. 718.  ARGUED MAY 1, 1941.  - DECIDED MAY 26, 1941.  - 60 NEV. 219 -
106 P.2D 755, REVERSED. 


1.  THE JUDGMENT BEING ERRONEOUS ON THE MERITS, THE COURT ABSTAINS
FROM INQUIRING WHETHER THIS SUIT TO ENJOIN A SUBORDINATE FEDERAL
OFFICER FROM ALLEGED INVASION OF PLAINTIFF'S RIGHTS UNDER COLOR OF A
FEDERAL STATUTE BUT WITHOUT AUTHORITY, IS A SUIT AGAINST THE UNITED
STATES, OR WHETHER THE SECRETARY OF THE INTERIOR SHOULD HAVE BEEN
JOINED AS A NECESSARY PARTY DEFENDANT, OR WHETHER THE STATE COURT WAS
WITHOUT POWER TO ENJOIN A FEDERAL OFFICER.  P. 359. 

2.  IN ADMINISTERING THE TAYLOR GRAZING ACT OF JUNE 28, 1934, THE
SECRETARY OF THE INTERIOR, RELYING ON THE BROAD POWERS CONFERRED BY
SEC. 2, ISSUED TEMPORARY LICENSES TO STOCKOWNERS, FOR THE GRAZING OF
THEIR LIVESTOCK UPON THE PUBLIC LANDS WITHIN GRAZING DISTRICTS, AND
CHARGED A UNIFORM PRICE PER HEAD, RATHER THAN HAVE THE GRAZING LANDS GO
UNREGULATED PENDING THE LENGTHY PERIOD REQUIRED FOR INSTITUTING THE
PLAN, CONTEMPLATED BY SEC. 3, OF RENEWABLE TERM PERMITS AT REASONABLE
FEES ADJUSTED TO EACH CASE, ETC.  WITH FULL KNOWLEDGE OF THIS, CONGRESS
REPEATEDLY APPROPRIATED PART OF THE MONEY THUS BROUGHT INTO THE
TREASURY FOR EXPENDITURE BY THE SECRETARY IN IMPROVEMENT OF THE
RANGES.  HELD, THAT THE SECRETARY'S CONSTRUCTION OF THE STATUTE WAS
THEREBY CONFIRMED AND HIS ACTION AS AGENT OF CONGRESS IN THE
ADMINISTRATION OF THE ACT WAS THEREBY RATIFIED.  P. 360. 

BROOKS V. DEWAR ET AL. 

CERTIORARI TO THE SUPREME COURT OF NEVADA. 

CERTIORARI, 312 U.S. 674, TO REVIEW THE AFFIRMANCE OF A DECREE OF
INJUNCTION, ENTERED UPON THE OVERRULING OF A DEMURRER TO THE BILL. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENTS BROUGHT SUIT IN A NEVADA DISTRICT COURT TO ENJOIN THE
PETITIONER FROM BARRING, OR THREATENING TO BAR, THEM FROM GRAZING THEIR
LIVESTOCK WITHIN NEVADA GRAZING DISTRICT NO. 1 IN DEFAULT OF THE
PAYMENT OF CERTAIN GRAZING FEES AND IN DEFAULT OF THEIR HOLDING A
LICENSE PERMITTING SUCH USE OF THE PUBLIC LANDS BY THEM.  THE BILL
ALLEGED THAT THE RESPONDENTS WERE, AND FOR YEARS HAD BEEN, IN THE
BUSINESS OF BREEDING, RAISING, GRAZING, AND SELLING LIVESTOCK WITHIN
NEVADA AND WITHIN THE DISTRICT; THAT IT WAS IMPOSSIBLE FOR THEM TO OWN
OR LEASE ALL THE LAND NEEDED FOR THEIR BUSINESS AND THEY OWNED OR
LEASED A SMALL PORTION OF THE REQUIRED LAND AND USED VACANT
UNAPPROPRIATED AND UNRESERVED PUBLIC LANDS OF THE UNITED STATES TO
SATISFY THE REMAINDER OF THEIR GRAZING REQUIREMENTS; THAT THEIR
FINANCIAL AND BUSINESS NECESSITIES MADE IT IMPOSSIBLE TO CONTINUE TO
OPERATE IF THEIR ABILITY TO GRAZE THEIR LIVESTOCK ON THE PUBLIC RANGE
WERE SERIOUSLY IMPAIRED OR INTERFERED WITH.  THEY AVERRED THAT, UNTIL
MAY 31, 1935, THEY HAD BEEN IMPLIEDLY LICENSED BY THE UNITED STATES TO
GRAZE LIVESTOCK ON PORTIONS OF THE PUBLIC RANGE IN NEVADA.  FN1 THEY
RECITED THE PASSAGE BY CONGRESS OF AN ACT OF JUNE 28, 1934,  FN2  AND
ALLEGED THAT, ON APRIL 8, 1935, THE SECRETARY OF THE INTERIOR, IN
ACCORDANCE WITH THE PROVISIONS OF THE ACT, ESTABLISHED A GRAZING
DISTRICT KNOWN AS NEVADA GRAZING DISTRICT NO. 1, WHICH INCLUDED
PORTIONS OF THE PUBLIC RANGE UPON WHICH THE RESPONDENTS HAD THERETOFORE
GRAZED THEIR LIVESTOCK AND THAT, ON MAY 31, 1935, THE DIRECTOR OF
GRAZING, WITH THE APPROVAL OF THE SECRETARY, HAD PROMULGATED RULES
WHICH REQUIRED ALL PERSONS GRAZING WITHIN THE DISTRICT TO OBTAIN
TEMPORARY LICENSES SO TO DO, FOR WHICH NO FEES WERE TO BE PAID; THAT,
PURSUANT TO THE RULES, THE RESPONDENTS OBTAINED TEMPORARY LICENSES;
THAT, ON MARCH 2, 1936, AFTER AN INVESTIGATION BY THE SECRETARY, THE
DIRECTOR OF GRAZING, WITH THE APPROVAL OF HIS SUPERIOR, PURPORTING TO
ACT UNDER THE AUTHORITY OF SEC. 2 OF THE ACT OF JUNE 28, 1934,
PROMULGATED RULES FOR THE ADMINISTRATION OF GRAZING DISTRICTS, WHICH
PROVIDED FOR THE ISSUE OF TEMPORARY LICENSES TO EXPIRE ON A DATE NAMED
IN 1937 OR UPON THE ISSUE OF PERMITS PROVIDED FOR BY SEC. 3 OF THE ACT,
FOR WHICH LICENSES GRAZIERS WERE TO PAY A FEE OF FIVE CENTS PER MONTH
FOR EACH HEAD OF CATTLE AND A FEE OF ONE CENT PER MONTH FOR EACH HEAD
OF SHEEP FOR THE PRIVILEGE OF GRAZING; THAT THE RULES FURTHER PROVIDED
THAT, AFTER ISSUE OF THE TEMPORARY LICENSES, NO STOCKMAN SHOULD GRAZE
LIVESTOCK UPON, NOR DRIVE THEM ACROSS, THE PUBLIC RANGE WITHIN A
GRAZING DISTRICT WITHOUT A LICENSE.  THE COMPLAINT RECITED THAT, ABOUT
MAY 1, 1936, THE RESPONDENTS WERE NOTIFIED BY THE REGISTER OF THE
DISTRICT LAND OFFICE THAT LICENSES WOULD BE GRANTED THEM UPON PAYMENT
OF THE FIRST INSTALLMENT OF THE GRAZING FEES, AND THAT SHORTLY
THEREAFTER THE DEFENDANT, BROOKS, WHO WAS ACTING AS REGIONAL GRAZIER OF
THE UNITED STATES, NOTIFIED THE RESPONDENTS THAT UNLESS THEY PAID THE
INSTALLMENTS AND OBTAINED LICENSES BY JUNE 15TH THEY WOULD BE
CONSIDERED IN TRESPASS UNDER THE TERMS OF THE ACT OF 1934 AND WOULD BE
PUNISHED BY FINE AS PROVIDED IN THE ACT.  THE RESPONDENTS ALLEGED WITH
PARTICULARITY THE URGENT NECESSITY IN THE CONDUCT OF THEIR BUSINESS
THAT THEY BE PERMITTED TO GRAZE THEIR CATTLE ON PUBLIC LANDS AND THAT,
UNLESS THEY CAN DO SO, THEY WILL SUFFER IRREPARABLE AND SERIOUS DAMAGE
DUE TO THE DESTRUCTION OF THEIR BUSINESSES.  THE BILL CHARGES THAT
ALTHOUGH THE SECRETARY IN PROMULGATING THE RULES WITH RESPECT TO
TEMPORARY LICENSES PURPORTED TO ACT UNDER THE AUTHORITY OF SEC. 2 OF
THE ACT OF 1934, THAT SECTION CONFERS UPON HIM NO POWER SO TO DO AND
THAT GRAZING FEES SPECIFIED BY THE RULES WERE FIXED WITHOUT ANY ATTEMPT
TO DETERMINE THEIR AMOUNTS AS REQUIRED BY SEC. 3 OF THE ACT AND IN
VIOLATION OF CONDITIONS PRESCRIBED BY SEC. 3. 

THE PETITIONER DEMURRED AND ASSIGNED AS REASONS THAT THE COMPLAINT
FAILED TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION
AGAINST HIM; THAT THERE WAS A DEFECT OF PARTIES DEFENDANT FOR FAILURE
TO JOIN THE SECRETARY OF THE INTERIOR; THAT AS THE UNITED STATES, AN
INDISPENSABLE PARTY, HAD NOT CONSENTED TO BE SUED, THE COURT WAS
WITHOUT JURISDICTION; AND THAT THE SUBJECT MATTER OF THE COMPLAINT WAS
EXCLUSIVELY WITHIN THE POLITICAL POWER OF THE UNITED STATES AND NOT
SUBJECT TO JUDICIAL REVIEW.  THE COURT OVERRULED THE DEMURRER, WITH
LEAVE TO ANSWER.  THE PETITIONER ELECTED TO STAND UPON HIS DEMURRER,
AND THE COURT THEREUPON ENTERED A DECREE IN FAVOR OF THE RESPONDENTS,
WHICH THE SUPREME COURT OF NEVADA AFFIRMED.  FN3  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE QUESTIONS INVOLVED. 

BY SEC. 1 OF THE ACT OF 1934, THE SECRETARY OF THE INTERIOR IS
AUTHORIZED TO ESTABLISH GRAZING DISTRICTS NOT EXCEEDING IN THE
AGGREGATE AN AREA OF 80,000,000 ACRES OUT OF CERTAIN UNAPPROPRIATED AND
UNRESERVED PUBLIC LANDS OF THE UNITED STATES  FN4  IF THE LANDS, IN HIS
OPINION, ARE CHIEFLY VALUABLE FOR GRAZING AND RAISING FORAGE CROPS. 
BEFORE ANY DISTRICT IS CREATED A HEARING IS TO BE HELD AFTER NOTICE AT
WHICH OFFICIALS AND PERSONS INTERESTED ARE TO BE HEARD.  SECTION 2
PROVIDES: 

"THE SECRETARY OF THE INTERIOR SHALL MAKE PROVISION FOR THE
PROTECTION, ADMINISTRATION, REGULATION, AND IMPROVEMENT OF SUCH GRAZING
DISTRICTS AS MAY BE CREATED UNDER THE AUTHORITY OF THE FOREGOING
SUCH SERVICE, ENTER INTO SUCH COOPERATIVE AGREEMENTS, AND DO ANY AND
ALL THINGS NECESSARY TO ACCOMPLISH THE PURPOSES OF THIS ACT AND TO
INSURE THE OBJECTS OF SUCH GRAZING DISTRICTS, NAMELY, TO REGULATE THEIR
OCCUPANCY AND USE, TO PRESERVE THE LAND AND ITS RESOURCES FROM
DESTRUCTION OR UNNECESSARY INJURY, TO PROVIDE FOR THE ORDERLY USE,
IMPROVEMENT, AND DEVELOPMENT OF THE RANGE; ...  AND ANY WILLFUL
VIOLATION OF THE PROVISIONS OF THIS ACT OR OF SUCH RULES AND
REGULATIONS THEREUNDER AFTER ACTUAL NOTICE THEREOF SHALL BE PUNISHABLE
BY A FINE OF NOT MORE THAN $500." 

LIVESTOCK IN GRAZING DISTRICTS "UPON THE PAYMENT ANNUALLY OF REASONABLE
FEES IN EACH CASE TO BE FIXED OR DETERMINED FROM TIME TO TIME."  IT
COMMANDS THAT PREFERENCE BE GIVEN, IN THE ISSUE OF PERMITS, TO CERTAIN
PERSONS DESCRIBED IN THE SECTION AND THAT NO PERMITTEE WHO COMPLIES
WITH THE RULES AND REGULATIONS OF THE SECRETARY SHALL BE DENIED THE
RENEWAL OF HIS PERMIT IF SUCH DENIAL WILL IMPAIR THE VALUE OF THE
PERMITTEE'S GRAZING UNIT WHEN SUCH UNIT IS PLEDGED AS SECURITY FOR ANY
BONA FIDE LOAN.  THE PERMITS ARE TO BE FOR A PERIOD OF NOT MORE THAN
TEN YEARS, SUBJECT TO THE PREFERENTIAL RIGHT OF THE PERMITTEE TO
RENEWAL IN THE DISCRETION OF THE SECRETARY.  THERE ARE OTHER PROVISIONS
FOR ADJUSTMENT OF THE AMOUNT OF GRAZING TO BE PERMITTED UNDER THE
PERMITS, AND A CORRESPONDING ADJUSTMENT OF THE GRAZING FEES IN THE CASE
OF THE OCCURRENCE OF RANGE DEPLETION DUE TO NATURAL CAUSES. 

BY SEC. 10 IT IS PROVIDED THAT ALL MONEYS RECEIVED UNDER THE
AUTHORITY OF THE ACT ARE TO BE DEPOSITED IN THE TREASURY OF THE UNITED
STATES, AND TWENTY-FIVE PER CENT. OF SUCH MONEYS RECEIVED FROM ANY
DISTRICT IN A FISCAL YEAR IS MADE AVAILABLE, WHEN APPROPRIATED BY THE
CONGRESS, FOR EXPENDITURE BY THE SECRETARY FOR RANGE IMPROVEMENTS, AND
FIFTY PER CENT. OF SUCH MONEY RECEIVED FROM A DISTRICT IN ANY FISCAL
YEAR IS TO BE PAID, AT THE END OF THE YEAR, BY THE SECRETARY OF THE
TREASURY, TO THE STATE IN WHICH THE GRAZING DISTRICT IS SITUATED, TO BE
EXPENDED BY THE STATE FOR THE BENEFIT OF THE COUNTIES IN WHICH THE
DISTRICT LIES.  FN5 

THE PETITIONER ASSERTS THAT THE JUDGMENT BELOW SHOULD BE REVERSED
BECAUSE THE SUIT IS ONE AGAINST THE UNITED STATES; BECAUSE THE
SECRETARY OF THE INTERIOR IS AN INDISPENSABLE PARTY, AND BECAUSE THE
STATE COURT WAS WITHOUT POWER TO ENJOIN A FEDERAL OFFICER.  HE ADMITS
THAT EARLIER CASES IN THIS COURT ARE AGAINST HIS CONTENTION BUT RELIES
ON OTHERS WHICH HE SAYS SUSTAIN HIS VIEW.  AS THIS COURT REMARKED
NEARLY SIXTY YEARS AGO RESPECTING QUESTIONS OF THIS KIND, THEY "HAVE
RARELY BEEN FREE FROM DIFFICULTY" AND IT IS NOT "AN EASY MATTER TO
RECONCILE ALL THE DECISIONS OF THE COURT IN THIS CLASS OF CASES."  FN6
THE STATEMENT APPLIES WITH EQUAL FORCE AT THIS DAY.  WE ARE NOT
DISPOSED TO ATTEMPT A CRITIQUE OF THE AUTHORITIES.  SINCE THE
JURISDICTION AND THE PROCEDURE OF THE COURT BELOW ARE SUSTAINED BY
DECISIONS OF THIS COURT, WE ARE UNWILLING TO BASE OUR JUDGMENT UPON A
RESOLUTION OF ASSERTED CONFLICT TOUCHING ISSUES OF SO GRAVE
CONSEQUENCE, WHERE, AS HERE, THE BILL FAILS TO MAKE A CASE UPON THE
MERITS. 

THE RESPONDENTS SAY THAT, UNDER THE ACT OF 1934, THE SECRETARY IS
POWERLESS TO GRANT TEMPORARY LICENSES AND CHARGE FEES THEREFOR; THAT
HIS SOLE AUTHORITY IS TO ISSUE PERMANENT PERMITS FOR SPECIFIED PERIODS
NOT TO EXCEED TEN YEARS, AT FEES ADJUSTED TO THE CIRCUMSTANCES OF
INDIVIDUAL PERMITTEES, AND WITH PREFERENTIAL RIGHTS OF RENEWAL.  IF
THIS VIEW BE CORRECT, IT MIGHT WELL BE YEARS BEFORE THE SECRETARY COULD
PLACE THE USERS OF LANDS IN ANY DISTRICT UNDER PERMITS.  THE PETITIONER
ASSERTS THAT IT WAS NOT THE INTENT OF CONGRESS THAT THE GRAZING LANDS
SHOULD GO UNREGULATED AND WITHOUT LICENSE FOR ANY SUCH EXTENSIVE PERIOD
AS WOULD BE REQUIRED FOR THE ISSUE OF PERMITS UNDER SEC. 3.  HE RELIES
ON THE BROAD POWERS CONFERRED BY SEC. 2, AND POINTS OUT THAT THE
GRIMAUD, 220 U.S. 506, AND THERE HELD TO AUTHORIZE SIMILAR RULES AND
REGULATIONS. 

WITH KNOWLEDGE THAT THE DEPARTMENT OF THE INTERIOR WAS ISSUING
TEMPORARY LICENSES INSTEAD OF TERM PERMITS AND THAT UNIFORM FEES WERE
BEING CHARGED AND COLLECTED FOR THE ISSUE OF TEMPORARY LICENSES,
CONGRESS REPEATEDLY APPROPRIATED TWENTY-FIVE PER CENT. OF THE MONEY
THUS COMING INTO THE TREASURY FOR EXPENDITURE BY THE SECRETARY IN
IMPROVEMENTS UPON THE RANGES.  FN7  THE INFORMATION IN THE POSSESSION
OF CONGRESS WAS PLENTIFUL AND FROM VARIOUS SOURCES.  IT KNEW FROM THE
ANNUAL REPORTS OF THE SECRETARY OF THE INTERIOR THAT A SYSTEM OF
TEMPORARY LICENSING WAS IN FORCE.  FN8 THE SAME INFORMATION WAS
FURNISHED THE APPROPRIATIONS COMMITTEE AT ITS HEARINGS.  FN9  NOT ONLY
WAS IT DISCLOSED BY THE ANNUAL REPORT OF THE DEPARTMENT THAT NO PERMITS
WERE ISSUED IN 1936, 1937, AND 1938, AND THAT PERMITS WERE ISSUED IN
ONLY ONE DISTRICT IN 1939, BUT IT WAS ALSO DISCLOSED IN THE HEARINGS
THAT UNIFORM FEES WERE BEING CHARGED AND COLLECTED FOR THE ISSUE OF
TEMPORARY LICENSES.  AND MEMBERS FROM THE FLOOR INFORMED THE CONGRESS
THAT THE TEMPORARY LICENSING SYSTEM WAS IN FORCE AND THAT AS MUCH AS
$1,000,000 HAD BEEN OR WOULD BE COLLECTED IN FEES FOR SUCH LICENSES. 
FN10  THE REPEATED APPROPRIATIONS OF THE PROCEEDS OF THE FEES THUS
COVERED, AND TO BE COVERED, INTO THE TREASURY, NOT ONLY CONFIRMS THE
DEPARTMENTAL CONSTRUCTION OF THE STATUTE,  FN11 BUT CONSTITUTES A
RATIFICATION OF THE ACTION OF THE SECRETARY AS THE AGENT OF CONGRESS IN
THE ADMINISTRATION OF THE ACT.  FN12 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  SEE BUFORD V. HOUTZ, 133 U.S. 320; OMAECHEVARRIA V. IDAHO, 246
U.S. 343. 

FN2  C. 865, 48 STAT. 1269, AS AMENDED BY ACT OF JUNE 26, 1936, C.
842, 49 STAT. 1976, 43 U.S.C. SUPP. V, SEC. 315 ET SEQ. 

FN3  60 NEV. 219; 106 P.2D 755. 

FN4  INCREASED TO AN AGGREGATE OF 142,000,000 ACRES BY THE AMENDATORY
ACT OF JUNE 26, 1936, SUPRA, NOTE 2. 

FN5  BY SEC. 11 PROVISION IS MADE FOR DISPOSITION OF MONEYS RECEIVED
FROM DISTRICTS LOCATED ON INDIAN LANDS.  TWENTY-FIVE PER CENT. IS MADE
AVAILABLE, WHEN APPROPRIATED, FOR EXPENDITURE BY THE SECRETARY FOR
RANGE IMPROVEMENT. 

FN6  CUNNINGHAM V. MACON & BRUNSWICK R. CO., 109 U.S. 446, 451. 

FN7  ACT OF JUNE 22, 1936, C. 691, 49 STAT. 1757, 1758; ACT OF AUGUST
9, 1937, C. 570, 50 STAT. 564, 565; ACT OF MAY 9, 1938, C. 187, 52
STAT. 291, 292; ACT OF MAY 10, 1939, C. 119, 53 STAT. 685, 687; ACT OF
JUNE 18, 1940, C. 395, 54 STAT. 406.  THE FORM OF THE APPROPRIATIONS
ACT OF JUNE 22, 1936, IS TYPICAL.  IT IS:  "FOR CONSTRUCTION, PURCHASE,
AND MAINTENANCE OF RANGE IMPROVEMENTS WITHIN GRAZING DISTRICTS,
PURSUANT TO THE PROVISIONS OF SECTIONS 10 AND 11 OF THE ACT OF JUNE 28,
1934(48 STAT., P. 1269), AND NOT INCLUDING CONTRIBUTIONS UNDER SECTION
9 OF SAID ACT, $250,000:  PROVIDED, THAT EXPENDITURES HEREUNDER IN ANY
GRAZING DISTRICT SHALL NOT EXCEED 25 PER CENTUM OF ALL MONEYS RECEIVED
UNDER THE PROVISIONS OF SAID ACT FROM SUCH DISTRICT DURING THE FISCAL
YEARS 1936 AND 1937." 

FN8  ANNUAL REPORT SECRETARY OF THE INTERIOR 1936, PP. 16-17.  ID.,
1937, PP. XII, 102, 105-107.  ID., 1938, PP. XV, 107. 

FN9  HEARINGS SUBCOMMITTEE OF HOUSE COMMITTEE ON APPROPRIATIONS ON
H.R. 10,630, 74TH CONG., 2D SESS., PP. 13-15; HEARINGS SUBCOMMITTEE OF
HOUSE COMMITTEE ON APPROPRIATIONS ON H.R. 6958, 75TH CONG., 1ST SESS.,
PP. 80, 83, 89; HEARINGS SUBCOMMITTEE OF HOUSE COMMITTEE ON
APPROPRIATIONS ON H.R. 9621, 75TH CONG., 3D SESS., PP. 65, 70, 71;
HEARINGS SUBCOMMITTEE OF SENATE COMMITTEE ON APPROPRIATIONS ON H.R.
9621, 75TH CONG., 3D SESS., PP. 3, 28, 29.    FN10  81 CONG. REC., PART
4, PP. 4570-4571; 83 CONG. REC., PART 11, P. 2376; 84 CONG. REC., PART
13, PP. 2931, 2932, 2933. 

FN11  WELLS V. NICKLES, 104 U.S. 444, 447. 

FN12  ISBRANDTSEN-MOLLER CO. V. UNITED STATES, 300 U.S. 139, 147. 
..END :










WOOD V. LOVETT, 313 U.S. 362 


NO. 709.  SUBMITTED APRIL 2, 1941.  - DECIDED MAY 26, 1941.  - 201 ARK.
129 - 143 S.W.2D 880, REVERSED. 


WHERE A STATE HAS SOLD LAND UNDER A TAX TITLE WHICH IS VALID WITH THE
HELP OF A STATUTE CURING IRREGULARITIES IN THE TAX PROCEEDING, BUT
INVALID WITHOUT IT, A REPEAL OF THE CURATIVE STATUTE IMPAIRS THE
OBLIGATION OF THE CONTRACT BETWEEN THE STATE AND ITS VENDEE, IN
VIOLATION OF THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION.  P. 371. 

WOOD ET AL. V. LOVETT. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

APPEAL FROM A DECREE AFFIRMING A DECREE QUIETING TITLE IN LOVETT,
RELYING ON A DEED FROM A FORMER OWNER, AGAINST WOOD ET AL., RELYING ON
A TAX TITLE. 

THE EFFECT OF ACT 142 WAS TO CURE ALL DEFECTS IN THE TAX SALE AND
VEST A VALID TITLE IN THE STATE OF ARKANSAS. 

APPELLANTS ACQUIRED VESTED RIGHTS BY THEIR DEEDS FROM THE STATE OF
ARKANSAS.  HOLLAND V. ROGERS, 33 ARK. 251; CAMPBELL V. HOLT, 115 U.S.
620; PEARSALL V. GREAT NORTHERN RY. CO., 161 U.S. 644; ST. LOUIS, I.M.
& S. RY. CO. V. ALEXANDER, 49 ARK. 190; 4 S.W. 753; WALKER V. FERGUSON,
176 ARK. 625; 3 S.W.2D 694; SMITH V. SPILLMAN, 135 ARK. 279; 205 S.W.
107; MASSA V. NASTRI, 125 CONN. 144; 3 A.2D 839; KOSEK V. WALKER, 196
ARK. 656; 118 S.W.2D 575. 

THE REPEAL OF THE ACT IMPAIRED THE OBLIGATION OF APPELLANTS'
CONTRACTS WITH THE STATE, IN VIOLATION OF ART. I, SEC. 10, OF THE
CONSTITUTION. 

ACT 264 OF THE GENERAL ASSEMBLY OF 1937, VOL. 1, PAGE 933, APPROVED
MARCH 17, 1937; BERRY V. DAVIDSON, 199 ARK. 96; 133 S.W.2D 442;
FLETCHER V. PECK, 6 CRANCH 87; PACIFIC MAIL STEAMSHIP CO. V. JOLIFFE, 2
WALL.  450; POINDEXTER V. GREENHOW, 114 U.S. 270; W.B. WORTHEN CO. V.
KAVANAUGH, 295 U.S. 56; BARNITZ V. BEVERLY, 163 U.S. 118; HANS V.
LOUISIANA, 134 U.S. 1; OSBORN V. NICHOLSON, 13 WALL.  654; NEW JERSEY
V. WILSON, 7 CRANCH 164; DAVIS V. GRAY, 16 WALL.  203; TERRETT V.
TAYLOR, 9 CRANCH 41; ETTOR V. TACOMA, 228 U.S. 148; PENNOYER V.
MCCONNAUGHY, 140 U.S. 1; REID V. FEDERAL LAND BANK OF NEW ORLEANS, 166
MISS.  39; 148 SO. 392; STATE V. OSTEN, 91 MONT.  76; 5 P.2D 562; STATE
V. GETHER CO., 203 WIS. 311; 234 N.W. 331. 

THE REPEAL DEPRIVED APPELLANTS OF THEIR PROPERTY WITHOUT DUE PROCESS
OF LAW, AND DENIED THEM EQUAL PROTECTION OF THE LAWS IN VIOLATION OF
THE FOURTEENTH AMENDMENT.  BLAIR V. CHICAGO, 201 U.S. 400, 484; BEAVERS
V. MYAR, 68 ARK. 333; 58 S.W. 40; MISSOURI PACIFIC RY. CO. V. NEBRASKA,
164 U.S. 403; NOBLE V. UNION RIVER LOGGING R. CO., 147 U.S. 165; ETTOR
V. TACOMA, 228 U.S. 148; CAMPBELL V. HOLT, 115 U.S. 620; RHODES V.
CANNON, 112 ARK. 6; 164 S.W. 752; CARLE V. GEHL, 193 ARK. 1061; 104
S.W.2D 445. 

THE CONSTRUCTION OF ACT 142 PRESENTS A QUESTION EXCLUSIVELY WITHIN
THE POWER AND JURISDICTION OF THE SUPREME COURT OF ARKANSAS.  FIDELITY
UNION TRUST CO. V. FIELD, 311 U.S. 169; ERIE R. CO. V. TOMPKINS, 304
U.S. 64. 

WE MAY CONCEDE FOR THE ARGUMENT THAT APPELLANTS PURCHASED FROM THE
STATE IN THE BELIEF THAT THE EFFECT OF ACT 142 WAS TO MAKE IMPERVIOUS
TO ATTACK A TAX TITLE CONVEYED BY THE STATE AND TO VEST SUCH TITLE IN
THE STATE'S GRANTEES.  BUT EVEN SO, APPELLANTS PURCHASED AT THEIR PERIL
AND UNDER THE RISK THAT THE SUPREME COURT OF ARKANSAS MIGHT DISAGREE
WITH THEM AS TO THE EFFECT OF THE ACT UPON WHICH THEY RELIED, AND MIGHT
PLACE UPON IT ANOTHER AND ENTIRELY DIFFERENT CONSTRUCTION.  THIS IS
WHAT HAS BEEN DONE, AND ALL THAT HAS BEEN DONE, IN THE PRESENT CASE. 

IN CARLE V. GEHL, 193 ARK. 1061, THE SUPREME COURT OF ARKANSAS HELD
THAT ACT 142 WAS NOT A STATUTE OF LIMITATIONS.  IN KOSEK V. WALKER, 196
ARK. 656, THE COURT HELD THAT THE ACT WAS OF NO AVAIL TO PURCHASERS
FROM THE STATE IN LITIGATION OVER SUCH TITLES ARISING AFTER THE REPEAL
OF THE ACT BY ACT 264 OF 1937. 

IN UNION TRUST CO. V. WATTS, 75 ARK. L.R. 30, THE COURT AGAIN HELD
THAT ACT 142 WAS NOT A CONFIRMATION ACT AND THAT IT WAS NOT EFFECTIVE
TO CURE DEFECTIVE TAX TITLES NOR TO VEST TITLE DURING THE TIME IT WAS
IN FORCE. 

BEFORE THIS LITIGATION WAS INSTITUTED, THE SUPREME COURT OF ARKANSAS
HAD AUTHORITATIVELY DETERMINED THE MEANING OF THE ACT IN QUESTION.  THE
FACT THAT THIS DETERMINATION WAS MADE AFTER APPELLANTS HAD BOUGHT FROM
THE STATE, RELYING UPON ANOTHER INTERPRETATION OF THE ACT, IS
UNIMPORTANT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS THE QUESTION WHETHER AN ARKANSAS ACT OF MARCH
17, 1937, AS CONSTRUED AND APPLIED, VIOLATES ARTICLE I, SEC. 10, OF THE
CONSTITUTION. 

MARCH 20, 1935, AN ACT OF THE LEGISLATURE OF ARKANSAS  FN1  TOOK
EFFECT WHICH PROVIDED: 

"WHENEVER THE STATE AND COUNTY TAXES HAVE NOT BEEN PAID UPON ANY REAL
OR PERSONAL PROPERTY WITHIN THE TIME PROVIDED BY LAW, AND PUBLICATION
OF THE NOTICE OF THE SALE HAS BEEN GIVEN UNDER A VALID AND PROPER
DESCRIPTION, AS PROVIDED BY LAW, THE SALE OF ANY REAL OR PERSONAL
PROPERTY FOR THE NON-PAYMENT OF SAID TAXES SHALL NOT HEREAFTER BE SET
ASIDE BY ANY PROCEEDINGS AT LAW OR IN EQUITY BECAUSE OF ANY
IRREGULARITY, INFORMALITY OR OMISSION BY ANY OFFICER IN THE ASSESSMENT
OF SAID PROPERTY, THE LEVYING OF SAID TAXES, THE MAKING OF THE
ASSESSOR'S OR TAX BOOK, THE MAKING OR FILING OF THE DELINQUENT LIST,
THE RECORDING THEREOF, OR THE RECORDING OF THE LIST AND NOTICE OF SALE,
OR THE CERTIFICATE AS TO THE PUBLICATION OF SAID NOTICE OF SALE;
PROVIDED, THAT THIS ACT SHALL NOT APPLY TO ANY SUIT NOW PENDING SEEKING
TO SET ASIDE ANY SUCH SALE, OR TO ANY SUIT BROUGHT WITHIN SIX MONTHS
FROM THE EFFECTIVE DATE OF THIS ACT FOR THE PURPOSE OF SETTING ASIDE
ANY SUCH SALE." 

CERTAIN LAND IN DESHA COUNTY, ARKANSAS, WAS SOLD TO THE STATE IN 1933
FOR NON-PAYMENT OF 1932 TAXES.  THE LAND WAS NOT REDEEMED AND WAS
CERTIFIED TO THE STATE, AS OWNER.  IN 1936 THE COMMISSIONER OF STATE
LANDS, ON BEHALF OF THE STATE, BY DEEDS RECITING HIS STATUTORY
AUTHORITY SO TO DO, CONVEYED TO THE APPELLANTS ALL THE RIGHT, TITLE,
AND INTEREST OF THE STATE IN TWO PARCELS OF THE LAND. 

BY AN ACT OF MARCH 17, 1937, THE ACT OF MARCH 20, 1935, WAS
REPEALED.  FN2 

JANUARY 10, 1939, THE CORPORATION WHICH OWNED THE LAND WHEN SOLD FOR
NON-PAYMENT OF TAXES CONVEYED TO THE APPELLEE, AND, ON JANUARY 21, HE
BROUGHT SUIT AGAINST THE APPELLANTS TO CANCEL THE STATE'S DEEDS, TO
QUIET HIS TITLE, AND FOR MESNE PROFITS OR RENTS.  HE ALLEGED THAT THERE
WERE IRREGULARITIES IN THE PROCEEDINGS PRIOR TO THE SALE TO THE STATE
WHICH RENDERED IT VOID.  THE APPELLANTS ADMITTED THE IRREGULARITIES. 
IT WAS AGREED ON ALL HANDS THAT THOUGH THESE IRREGULARITIES WOULD HAVE
CONSTITUTED GROUNDS FOR AVOIDING THE SALE BUT FOR THE PROVISIONS OF THE
ACT OF 1935, THEY WOULD NOT HAVE BEEN AVAILABLE TO THE APPELLEE IF THE
ACT WERE STILL IN FORCE.  THE TRIAL COURT ENTERED A DECREE IN FAVOR OF
THE APPELLEE WHICH THE SUPREME COURT AFFIRMED.  FN3 

THE APPELLANTS CONTENDED IN THE COURTS BELOW, AND CONTEND HERE, THAT
IF THE ACT OF 1937 BE GIVEN THE EFFECT OF DIVESTING THEM OF TITLE
CONFIRMED IN THEM BY THE ACT OF 1935 THE LATER ACT IMPAIRS THE
OBLIGATION OF THEIR CONTRACTS WITH THE STATE.  THE SUPREME COURT OF
ARKANSAS HELD THAT "THE ACT (OF 1935) DOES NOT PROFESS TO CURE TAX
SALES, BUT ONLY (PROVIDES) THAT TAX SALES SHALL NOT BE SET ASIDE BY THE
COURTS BECAUSE OF CERTAIN IRREGULARITIES AND INFORMALITIES, NAMING
THEM."  IT SAID THAT THE APPELLANTS ACQUIRED NO GREATER VESTED INTEREST
OR TITLE THAN THE STATE HAD AND THE REPEAL OF THE ACT OF 1935 "VIOLATED
NO CONSTITUTIONAL RIGHT OF THEIRS TO A DEFENSE" THEREUNDER.  WE ARE OF
OPINION THAT THE DECISION WAS ERRONEOUS. 

FOR PRESENT PURPOSES IT IS UNNECESSARY TO RECITE THE STATUTORY
PROCEDURE FOR ASSESSMENT, LEVY, AND COLLECTION OF REAL ESTATE TAXES IN
ARKANSAS.  IF THE TAXES LEVIED BECOME DELINQUENT, A SALE BY THE
COLLECTOR IS AUTHORIZED.  IF NO PERSON BIDS THE AMOUNT OF THE
DELINQUENT TAXES, PENALTY, AND COSTS, THE COLLECTOR IS TO BID IN THE
PROPERTY IN THE NAME OF THE STATE.  FN4  THE STATE IS NOT REQUIRED TO
PAY THE AMOUNT BID IN ITS NAME.  FN5  THE CLERK OF THE COUNTY COURT IS
REQUIRED TO MAKE A RECORD OF THE SALE TO THE STATE AND SEND A
CERTIFICATE THEREOF TO THE AUDITOR OF STATE.  FN6  LANDS THUS SOLD TO
THE STATE MAY BE REDEEMED WITHIN TWO YEARS OF THE SALE.  FN7  AFTER
EXPIRATION OF THE PERIOD OF REDEMPTION, THE COUNTY CLERK EXECUTES A
CERTIFICATE OF SALE AND CAUSES THE SAME TO BE RECORDED IN THE COUNTY
RECORDER'S OFFICE.  THEREUPON THE LANDS VEST IN THE STATE.  THE
CERTIFICATE, AFTER RECORDATION, IS SENT BY THE CLERK TO THE
COMMISSIONER OF STATE LANDS AND THEREUPON THE LANDS ARE SUBJECT TO
DISPOSAL ACCORDING TO LAW.  FN8  THE COMMISSIONER IS AUTHORIZED TO SELL
THEM AND TO MAKE DEEDS TO PURCHASERS.  FN9 

AS THE SUPREME COURT HAS INDICATED IN THIS CASE, ACT 142 OF 1935 WAS
ONE OF A SERIES OF STATUTES ADOPTED TO PREVENT THE SETTING ASIDE OF TAX
SALES AND TITLES BASED UPON THEM, FOR INFORMALITIES AND IRREGULARITIES
IN THE ASSESSMENT AND LEVY OF TAXES AND THE SALE OF PROPERTY FOR
DELINQUENT TAXES, WHICH HAD SERIOUSLY IMPEDED THE EFFECTIVE COLLECTION
OF TAXES AND DIMINISHED THE STATE'S REVENUE. 

IN BERRY V. DAVIDSON, 199 ARK. 276, 280; 133 S.W.2D 442, THE COURT,
AFTER REFERRING TO SEVERAL SIMILAR ACTS, SAID: 

"  ...  WE NOW THINK IT APPARENT THAT THE LEGISLATURE WAS ENDEAVORING
TO FIND AND PUT INTO EFFECT A REMEDY OR MEANS TO CORRECT THE EVILS
GROWING OUT OF NONPAYMENT OF TAXES, TO PREVENT TAX EVASION.  FOR MANY
YEARS IT WAS A RECOGNIZED PROPOSITION THAT TAX FORFEITURES AND SALES OF
LAND ON ACCOUNT THEREOF WERE WELL NIGH UNIVERSALLY HELD INEFFECTUAL TO
CONVEY TITLE, AND THERE IS PERHAPS AT THIS TIME, NO DOUBT, THAT THERE
WAS A GENERAL RECOGNITION OF THE FUTILITY OF TAXING LAWS; THAT IT WAS
THOUGHT BY MANY THAT PEOPLE NEED NOT PAY TAXES IF THEY WERE WILLING TO
MEET THE WORRY AND EXPENSES OF LITIGATION IN REGARD THERETO." 

     .         .         .  .         . 

"ACT 142, ABOVE MENTIONED, WHILE IT WAS STILL IN FORCE, WAS ANOTHER
EVIDENCE OF THE LEGISLATURE'S EFFORT AND STRUGGLE TO CORRECT OR CURE
THESE WELL GROUNDED AND LONG ESTABLISHED PRACTICES ILLUSTRATING THE
FUTILITY OF THE LAW REQUIRING PAYMENT OF TAXES.  OUT OF ALL THIS HAS
COME ACT 119 OF THE ACTS OF 1935 CONSTRUED AND UPHELD IN THE LAST CITED
CASE.  (FULLER V. WILKINSON, 198 ARK. 102, 128 S.W.2D 251.)  ACCORDING
TO THE TERMS OF THAT STATUTE, WHEN IT SHALL HAVE BEEN INVOKED IN REGARD
TO SUCH TAX SALES, WE MUST, AND DO, HOLD THAT THE DECREE OF
CONFIRMATION OF A SALE TO THE STATE 'OPERATES AS A COMPLETE BAR AGAINST
ANY AND ALL PERSONS, FIRMS, CORPORATIONS, QUASI-CORPORATIONS,
ASSOCIATIONS WHO MAY CLAIM SAID PROPERTY' SOLD FOR TAXES SUBJECT ONLY
TO THE EXCEPTIONS SET FORTH AND STATED IN THE ACT, NONE OF WHICH IS
APPLICABLE TO AID THE APPELLANT." 

IT IS EVIDENT FROM THESE STATEMENTS THAT THE PURPOSE OF ACT 142 WAS
DEFINITELY TO ASSURE PURCHASERS FROM THE STATE THAT THE LAND BOUGHT BY
THEM COULD NOT BE TAKEN AWAY FROM THEM ON GROUNDS THERETOFORE AVAILABLE
TO THE DELINQUENT TAXPAYER. 

IN ITS OPINION IN THE PRESENT CASE, THE COURT LAYS STRESS ON THE FACT
THAT ACT 142 WAS NOT A CURATIVE ACT, ALTHOUGH IN EARLIER DECISIONS IT
HAD REPEATEDLY SO DESIGNATED IT.  FN10  BUT WE DO NOT DEEM THE NAME OR
LABEL OF THE LEGISLATION IMPORTANT.  THE FACT IS, AS THE COURT BELOW
HOLDS, THAT THE PURPOSE AND EFFECT OF THE STATUTE WERE TO RENDER
UNAVAILING TO THE OWNER WHOSE PROPERTY HAD BEEN SOLD FOR TAXES, AS
GROUNDS OF ATTACK ON THE TITLE OF THE PURCHASER FROM THE STATE,
IRREGULARITIES AND INFORMALITIES IN THE PERFORMANCE OF ACTS BY STATE
OFFICERS IN CONNECTION WITH THE ASSESSMENT, LEVY, AND SALE WHICH THE
LEGISLATURE COULD, IN ITS DISCRETION, HAVE OMITTED TO PRESCRIBE AS
ESSENTIALS TO THE PASSING OF A VALID TITLE. 

THE ACT OF 1935 MUST BE VIEWED IN THE SETTING OF THE STATUTORY SCHEME
OF TAXATION, SALE OF FORFEITED LANDS TO THE STATE, AND SALE IN TURN BY
THE STATE.  ITS PURPOSE WAS TO ASSURE ONE WILLING TO PURCHASE FROM THE
STATE A TITLE IMMUNE FROM ATTACK ON GROUNDS THERETOFORE AVAILABLE.  BY
ITS LEGISLATION THE STATE SAID, IN EFFECT, TO THE PROSPECTIVE PURCHASER
OF LANDS ACQUIRED FOR DELINQUENT TAXES, THAT IF HE WOULD PURCHASE HE
SHOULD HAVE THE IMMUNITY.  UNDER THE SETTLED RULE OF DECISION IN THIS
COURT, THE EXECUTION OF THE STATE'S DEEDS TO THE APPELLANTS CONSTITUTED
THE EXECUTION OR CONSUMMATION OF A CONTRACT, THE RIGHTS ARISING FROM
WHICH ARE PROTECTED FROM IMPAIRMENT BY ARTICLE I, SEC. 10 OF THE
CONSTITUTION; AND THE OBLIGATION OF THE STATE ARISING OUT OF SUCH A
GRANT IS AS MUCH PROTECTED BY ARTICLE I, SEC. 10, AS THAT OF AN
AGREEMENT BY AN INDIVIDUAL.  FLETCHER V. PECK, 6 CRANCH 87, 136, 137,
139.  THE ACT OF 1935, TAKEN IN CONNECTION WITH THE OTHER STATUTES
REGULATING THE ACQUIREMENT BY THE STATE, AND THE DISPOSITION BY IT, OF
LANDS SOLD FOR DELINQUENT TAXES, CONSTITUTED, IN EFFECT, AN OFFER BY
THE STATE TO THOSE WHO MIGHT BECOME PURCHASERS OF SUCH LANDS, AND THE
PROTECTION IT AFFORDED TO THE TITLE ACQUIRED BY SUCH PURCHASERS
NECESSARILY INURED TO EVERY PURCHASER ACTING UNDER IT AND CONSTITUTED A
CONTRACT WITH HIM.  FN11 

THE FEDERAL AND STATE COURTS HAVE HELD, WITH PRACTICAL UNANIMITY,
THAT ANY SUBSTANTIAL ALTERATION BY SUBSEQUENT LEGISLATION OF THE RIGHTS
OF A PURCHASER AT TAX SALE, ACCRUING TO HIM UNDER LAWS IN FORCE AT THE
TIME OF HIS PURCHASE, IS VOID AS IMPAIRING THE OBLIGATION OF CONTRACT. 
FN12 

APPELLEE RELIES UPON THE CIRCUMSTANCE THAT THE STATE'S DEED IS A
QUITCLAIM.  FROM THIS IT IS INFERRED THAT NO CONTRACT WAS MADE THAT THE
TERMS OF THE ACT OF 1935 WERE TO BIND THE STATE WITH RESPECT TO THE
TITLE CONVEYED.  BUT "THE LAWS WHICH SUBSIST AT THE TIME AND PLACE OF
THE MAKING OF A CONTRACT, AND WHERE IT IS TO BE PERFORMED, ENTER INTO
AND FORM A PART OF IT, AS IF THEY WERE EXPRESSLY REFERRED TO OR
INCORPORATED IN ITS TERMS."  FN13  THIS COURT HAS HELD THAT THE TERMS
OF A STATUTE ACCORDING RIGHTS AND IMMUNITIES TO A VENDEE OF THE STATE
ARE A PART OF THE OBLIGATION OF THE DEED MADE PURSUANT TO IT.  THE
GRANT OF THE STATE OF GEORGIA INVOLVED IN FLETCHER V. PECK, SUPRA, WAS
A PATENT OF THE PUBLIC LANDS OF THE STATE AND, OF COURSE, CONTAINED NO
WARRANTY OF TITLE SAVE SUCH AS IS IMPLIED FROM THE FACT THAT THE STATE
PURPORTS TO GRANT ITS OWN LANDS.  IN PENNOYER V. MCCONNAUGHY, 140 U.S.
1, THE RIGHTS OF THE PLAINTIFF HELD TO BE PROTECTED BY ART. 1, SEC. 10,
AROSE OUT OF HIS APPLICATION FOR A PATENT FILED PURSUANT TO A STATE
STATUTE.  THE IMPAIRMENT WAS WORKED OUT BY A SUBSEQUENT STATUTE SEEKING
TO DESTROY THE RIGHT OF THE PLAINTIFF TO THE PATENT PURSUANT TO HIS
COMPLIANCE WITH THE EARLIER ACT.  NO WARRANTY WAS INVOLVED.  IN APPLEBY
V. NEW YORK CITY, 271 U.S. 364, IT APPEARED THAT THE LEGISLATURE HAD
FIXED THE SHORE LINE OF THE CITY OF NEW YORK ALONG THE HUDSON RIVER AND
THAT THE LAND INSIDE THAT LINE HAD BEEN GRANTED TO THE CITY WITH THE
CONSEQUENT RIGHT TO CONVEY IT.  THE CITY HAD CONVEYED LAND UNDER WATER,
ON THE LANDWARD SIDE OF THE LINE, TO APPLEBY BY A QUITCLAIM DEED.  FN14
BY SUBSEQUENT STATUTES THE STATE GRANTED THE CITY AUTHORITY TO USE THE
LAND IN QUESTION FOR MUNICIPAL PURPOSES AND THE CITY PROCEEDED TO
IMPROVE IT.  THIS COURT HELD THAT THE CITY'S GRANT, MADE WITH FULL
LEGISLATIVE SANCTION, COULD NOT BE IMPAIRED BY THE SUBSEQUENT
LEGISLATION. 

AS IN THE CASES CITED, SO HERE, THE QUESTION IS WHETHER THE STATE
GRANTED A VALUABLE RIGHT WHICH IT SUBSEQUENTLY ESSAYED TO TAKE AWAY. 
THE SUPREME COURT OF ARKANSAS SUSTAINED THE CONSTITUTIONAL VALIDITY OF
ACT 142 OF 1935 ON THE OBVIOUS GROUND THAT A TAXPAYER HAS NO VESTED
RIGHT IN ANY GIVEN FORM OF PROCEDURE FOR FORFEITURE OF LANDS FOR NON
PAYMENT OF TAXES.  AS THAT COURT HAS HELD, THE EXTENT OF HIS RIGHT IS
THAT HE SHALL HAVE NOTICE OF THE SALE AND A FAIR OPPORTUNITY TO PREVENT
FORFEITURE FOR DEFAULT.  IT IS SUGGESTED THAT THE ACT OF THE STATE IN
DEPRIVING THE TAXPAYER OF THE RIGHT TO SET ASIDE A SALE FOR TECHNICAL
PROCEDURAL DEFECTS IS OF LIKE QUALITY WITH THE STATE'S ATTEMPT TO
RESTORE THE TAXPAYER'S RIGHTS AGAINST THE APPELLANTS WHO PURCHASED FROM
THE STATE.  BUT OBVIOUSLY THE TWO ACTS ARE NOT OF THE SAME QUALITY. 
THE TAXPAYER HAD NEITHER A CONTRACT NOR ANY OTHER CONSTITUTIONAL RIGHT
AS AGAINST THE STATE TO INSIST UPON ANY GIVEN FORM OF PROCEDURE, SO
LONG AS WHAT WAS DONE IN FORFEITING HIS LANDS WAS NOT ARBITRARY OR
UNFAIR.  BUT THE APPELLANTS, AS PURCHASERS FROM THE STATE, WERE GIVEN,
BY THE ACT OF 1935, AN IMPORTANT ASSURANCE THAT THE STATE WOULD NOT
ITSELF TAKE AWAY OR AUTHORIZE OTHERS TO DESTROY THE ESTATE WHICH IT HAD
GRANTED, BY REASON OF TECHNICAL DEFECTS IN PROCEDURE CURED BY THE ACT
OF 1935. 

THE APPELLEE SUGGESTS THAT IT IS SIGNIFICANT THAT THE STATE WAS NOT A
PARTY TO THIS SUIT, AND WAS NOT, THEREFORE, SEEKING TO TAKE BACK WHAT
IT HAD GRANTED.  BUT, AS FLETCHER V. PECK, SUPRA, SHOWS, THIS IS NOT
IMPORTANT; FOR THAT SUIT WAS BETWEEN TWO PRIVATE PARTIES, AS IS THIS,
ONE CLAIMING RIGHTS CONFERRED BY THE EARLIER STATE ACTION AND THE OTHER
CLAIMING SUPERSEDING RIGHTS UNDER LATER LEGISLATION. 

IT BEGS THE QUESTION TO SAY THAT THE STATE MAY NOT ABDICATE ITS
POLICE POWER.  IN THE EXERCISE OF THE POLICY COMMITTED TO THE
LEGISLATURE IT IS COMPETENT FOR THE STATE TO ENTER INTO A CONTRACT
WHICH IT INTENDS AS AN ASSURANCE OF PROTECTION TO ITS GRANTEE.  FN15
THIS WE THINK THE STATE HAS PLAINLY DONE IN THE PRESENT INSTANCE.  THE
JUDGMENT IS REVERSED. 

FN1  ACT 142 OF 1935. 

FN2  ACT 264 OF 1937. 

THE WORDS OF THE ACT ARE:  "THAT ACT 142 OF THE ACTS OF 1935 BE AND
THE SAME IS HEREBY REPEALED." 

FN3  201 ARK. 129; 143 S.W.2D 880. 

FN4  POPE'S DIGEST 1937, SEC. 13849. 

FN5  ID., SEC. 13853. 

FN6  ID., SEC. 13855. 

FN7  ID., SEC. 13868. 

FN8  ID., SEC. 13876. 

FN9  ID., SECS. 8610, 8620. 

FN10  CARLE V. GEHL, 193 ARK. 1061; 104 S.W.2D 445; DEANER V.
GWALTNEY, 194 ARK. 332; 108 S.W.2D 600; LAMBERT V. REEVES, 194 ARK.
1109; 110 S.W.2D 503; 112 S.W.2D 33; GILLEY V. SOUTHERN CORPORATION,
194 ARK. 1134; 110 S.W.2D 509; FOSTER V. REYNOLDS, 195 ARK. 5; 110
S.W.2D 689; WALLACE V. TODD, 195 ARK. 134; 111 S.W.2D 472; BURBRIDGE V.
CRAWFORD, 195 ARK. 191; 112 S.W.2D 423; KANSAS CITY LIFE INS. CO. V.
MOSS, 196 ARK. 553; 118 S.W.2D 873; SANDERSON V. WALLS, 200 ARK. 534;
140 S.W.2D 117. 

FN11  WOODRUFF V. TRAPNALL, 10 HOW.  190, 205. 

FN12  CORBIN V. COMMISSIONERS, 3 F. 356; MARX V. HANTHORN, 30 F.
579(SEE 148 U.S. 172, 182); TRACY V. REED, 38 F. 69; WALKER V.
FERGUSON, 176 ARK. 625, 3 S.W.2D 694; CHAPMAN V. JOCELYN, 182 CAL. 294,
187 P. 962; HULL V. FLORIDA, 29 FLA. 79, 11 SO. 97; STATE ADJUSTMENT
CO. V. WINSLOW, 114 FLA. 609, 154 SO. 325; MORRIS V. INTERSTATE BOND
CO., 180 GA. 689, 180 S.E. 819; BRUCE V. SCHUYLER, 9 ILL. 221; SOLIS V.
WILLIAMS, 205 MASS. 350, 91 N.E. 148; CURRY V. BACKUS, 156 MICH. 342,
120 N.W. 796; ROTT V. STEFFENS, 229 MICH. 241, 201 N.W. 227; STATE V.
MCDONALD, 26 MINN. 145, 1 N.W. 832; BLAKELEY V. L.M. MANN LAND CO., 153
MINN. 415, 190 N.W. 797; PRICE V. HARLEY, 142 MISS.  584, 107 SO. 673;
STATE V. OSTEN, 91 MONT. 76, 5 P.2D 562; PACE V. WIGHT, 25 N.M. 276,
181 P. 430; DIKEMAN V. DIKEMAN, 11 PAIGE (N.Y.)  484; STATE V.
STEPHENS, 182 WASH. 444, 47 P.2D 837; MILKINT V. MCNEELEY, 113 W. VA.
804, 169 S.E.790; STATE V. GETHER CO., 203 WIS. 311, 234 N.W. 331. 
COMPARE MCNEE V. WALL, 4 F.SUPP.  496; MOORE V. BRANCH, 5 F.SUPP. 
1011. 

FN13  HOME BUILDING & L. ASSN. V. BLAISDELL, 290 U.S. 398,429. 

FN14  THE PHRASEOLOGY OF THE DEED IS:  "AND IT IS HEREBY FURTHER
AGREED BY AND BETWEEN THE PARTIES TO THESE PRESENTS, AND THE TRUE
INTENT AND MEANING HEREOF, IS THAT THIS PRESENT GRANT AND EVERY WORD OR
THING IN THE SAME CONTAINED SHALL NOT BE CONSTRUED OR TAKEN TO BE A
COVENANT OR COVENANTS OF WARRANTY OR OF SEIZIN, OF SAID PARTIES OF THE
FIRST PART OR THEIR SUCCESSORS OR TO OPERATE FURTHER THAN TO PASS THE
ESTATE RIGHT, TITLE OR INTEREST THEY MAY HAVE OR MAY LAWFULLY CLAIM IN
THE PREMISES HEREBY CONVEYED BY VIRTUE OF THEIR SEVERAL CHARTERS AND
THE VARIOUS ACTS OF THE LEGISLATURE OF THE PEOPLE OF THE STATE OF NEW
YORK." 

FN15  INDIANA EX REL. ANDERSON V. BRAND, 303 U.S. 95. 

MR. JUSTICE BLACK, DISSENTING: 

THERE IS FAR MORE INVOLVED HERE THAN A MERE LITIGATION BETWEEN RIVAL
CLAIMANTS TO A FEW HUNDRED ACRES OF ARKANSAS LAND.  IN MY VIEW, THE
STATUTE HERE STRICKEN DOWN IS BUT ONE OF MANY ACTS ADOPTED BOTH BY
CONGRESS AND BY STATE LEGISLATURES IN AN EFFORT TO MEET THE BAFFLING
ECONOMIC AND SOCIOLOGICAL PROBLEMS GROWING OUT OF A NATION-WIDE
DEPRESSION.  THESE PROBLEMS - AMONG THEM THE OWNERS' LOSS OF HOMES AND
FARMS, CHIEFLY THROUGH MORTGAGE SALES AND TAX FORFEITURES AND THE
STATES' CONCOMITANT LOSS OF TAX REVENUES - CHALLENGED THE WISDOM AND
CAPACITY OF THE NATION'S LEGISLATORS. 

AMONG THE EFFORTS OF ARKANSAS' LEGISLATORS TO MEET THESE PROBLEMS WAS
THE LEGISLATION ADOPTED BY ACT 142 OF 1935 AND REPEALED BY ACT 264 OF
1937 - THE REPEALING ACT BEING THE STATUTE HERE HELD INVALID.  IT IS
QUITE APPARENT THAT CONSIDERATIONS OF PUBLIC POLICY INDUCED THE
ARKANSAS LEGISLATURE TO PASS THE 1935 ACT WHEREBY ARKANSAS COURTS WERE
PROHIBITED FROM SETTING ASIDE CERTAIN TYPES OF DEFECTIVE TAX SALES "BY
ANY PROCEEDINGS AT LAW OR IN EQUITY."  AT THE TIME THAT ACT WAS PASSED,
MORE THAN 25% OF THE REAL PROPERTY IN THE STATE WAS TAX DELINQUENT. 
FN1  LOSS OF REVENUE FROM SO SUBSTANTIAL A PORTION OF THE STATE'S TOTAL
ACREAGE WAS A SERIOUS MATTER.  IN THE EYES OF SOME PEOPLE, THE LAND
COULD BE SOLD AND THE LOST REVENUES RECOUPED IF SOME OF THE FORMAL
GROUNDS ON WHICH TAX TITLES COULD BE INVALIDATED WERE RENDERED
UNAVAILING.  FN2  IT SEEMS CLEAR THAT THE 1935 LEGISLATURE WAS
PERSUADED OF THE WISDOM OF SUCH A STEP.  BUT IT ALSO SEEMS CLEAR THAT
THE 1935 ACT WAS REPEALED IN 1937 BECAUSE THE LEGISLATURE BECAME
CONVINCED THAT THE LAW HAD WORKED DIRECTLY CONTRARY TO THE STATE'S
POLICY OF OBTAINING THE BENEFITS BELIEVED TO FLOW FROM CONTINUITY OF
POSSESSION BY HOME OWNERS AND FARMERS,  FN3  THAT IT HAD ACCOMPLISHED
INEQUITABLE RESULTS, THAT IT HAD THEREBY "OPERATED INJURIOUSLY TO THE
INTERESTS OF THE STATE, AND THAT SOUND POLICY DICTATED ITS REPEAL." 
FN4  THIS IS APPARENT FROM READING THAT PART OF SEC. 2 OF THE REPEALING
ACT OF 1937 WHICH DECLARED THAT "SAID ACT 142, ACTS 1935, IGNORES
JURISDICTIONAL PREREQUISITES TO EFFECT VALID SALES OF TAX DELINQUENT
LANDS, AS PRESCRIBED BY LAW, AND HAS BROUGHT THE LAWS OF THE STATE
INCIDENT THERETO INTO DOUBT AND CONFUSION  ...  " 

BOTH THE 1935 ACT AND THE 1937 ACT REPEALING IT TOUCH ON ARKANSAS'
POLICY AS TO TAXATION, TAX FORFEITURE, AND LAND OWNERSHIP - MATTERS OF
PUBLIC POLICY WHICH ARE OF VITAL INTEREST TO THE STATE AND ALL ITS
CITIZENS.  IT WAS A MATTER OF SERIOUS MOMENT TO ARKANSAS THAT 25% OF
THE STATE'S PRIVATELY OWNED LAND - HOMES, FARMS, AND OTHER PROPERTY -
WAS IN JEOPARDY OF BEING TAKEN FROM ITS OWNERS BECAUSE OF INABILITY TO
PAY TAXES.  IF ONLY 50% OF THE FORFEITURES WERE HOMES AND FARMS,
SIMULTANEOUS OUSTER OF SO MANY CITIZENS COULD RESULT IN FORCED
MIGRATIONS AND DISCONTENTS DISASTROUS IN THEIR CONSEQUENCES.  THE
MANIFESTATIONS OF FINANCIAL DISTRESS REVEALED BY THE WIDESPREAD
DELINQUENCY SPOTLIGHTED CONDITIONS WHICH CALLED FOR THE BEST IN
LEGISLATIVE STATESMANSHIP.  TO SEEK A RATIONAL AND FAIR SOLUTION TO THE
PROBLEM WAS NOT ONLY WITHIN THE POWER OF ARKANSAS' LAWMAKERS, BUT WAS
ALSO THEIR IMPERATIVE DUTY.  WITHOUT ATTEMPTING TO JUDGE THE WISDOM OR
EQUITIES OF EITHER ACT, IT IS EASY TO SEE THAT BOTH THE 1935 AND THE
1937 ACT REPRESENTED RATIONAL AND UNDERSTANDABLE ATTEMPTS TO ACHIEVE
SUCH A SOLUTION.  TO HOLD THAT THE CONTRACT CLAUSE OF THE FEDERAL
CONSTITUTION IS A BARRIER TO THE 1937 ATTEMPT TO RESTORE TO THE
DISTRESSED LANDOWNERS THE REMEDY PARTLY TAKEN AWAY BY THE 1935 ACT IS,
IN MY VIEW, WHOLLY INCONSISTENT WITH THE SPIRIT AND THE LANGUAGE OF
THAT CONSTITUTION. 

AS ALREADY STATED, ARKANSAS WAS NOT FACED WITH A PROBLEM PECULIAR TO
THAT STATE ALONE.  AT THE DEPTH OF THE DEPRESSION, OVER 20% OF ALL REAL
PROPERTY IN THE UNITED STATES WAS TAX DELINQUENT.  FN5  NOR WAS
ARKANSAS ALONE IN SEEKING TO DO SOMETHING ABOUT THE SITUATION.  "SINCE
1928 NEARLY EVERY STATE IN THE UNION HAS ENACTED LEGISLATION DEALING
WITH THE PROBLEM OF DELINQUENT TAXES AND A NUMBER OF STATES HAVE
COMPLETELY REMODELED THEIR SYSTEMS OF TAX DELINQUENCY LAWS.  THIS
LEGISLATIVE ACTIVITY HAS BEEN CALLED FORTH BY THE UNPRECEDENTED
INCREASE JUST BEFORE AND DURING THE DEPRESSION IN THE AMOUNT OF UNPAID
PROPERTY TAXES AND BY THE CONSEQUENT THREAT BOTH TO THE FINANCIAL
STABILITY OF STATE AND LOCAL GOVERNMENTS AND TO THE SECURITY OF PRIVATE
PROPERTY."  FN6 BY ACTS PASSED IN THE SINGLE YEAR OF 1933, TWELVE
STATES EXTENDED THE TIME FOR PAYING TAXES ALREADY DUE, ELEVEN STATES
POSTPONED SALES FOR TAXES, TWENTY-SIX STATES (AMONG THEM ARKANSAS)
WAIVED OR REDUCED PENALTIES AND INTEREST ON TAXES ALREADY DELINQUENT OR
FOR WHICH PROPERTY HAD ALREADY BEEN SOLD, NINE STATES (AMONG THEM
ARKANSAS) LENGTHENED THE PERIOD OF REDEMPTION ON PROPERTY ALREADY SOLD,
AND SIXTEEN STATES PERMITTED PAYMENT OF ALREADY DELINQUENT TAXES IN
INSTALLMENTS SPREAD OVER A PERIOD OF YEARS.  FN7 

THE STATES, AND THE FEDERAL GOVERNMENT ALSO, WERE FACED WITH A
"FINANCIAL CRISIS (WHICH HAD) THE SAME RESULTS AS IF IT WERE CAUSED BY
FLOOD, EARTHQUAKE, OR DISTURBANCE IN NATURE."  FN8  THE FEDERAL
GOVERNMENT GREATLY EXPANDED FACILITIES FOR FARM LOANS; SET UP THE HOME
OWNERS LOAN CORPORATION; PRACTICALLY UNDERWROTE THE NATION'S BANKING
SYSTEM; PASSED THE FRAZIER-LEMKE ACT; WIDENED THE SCOPE OF BANKRUPTCY
JURISDICTION; AND EMBARKED ON A SYSTEM OF NATIONWIDE RELIEF.  IN THE
STATES, PART OF THE EFFORT TO MEET THE CRISIS TOOK THE FORM OF MORTGAGE
AND TAX MORATORIA; PART TOOK OTHER FORMS, INCLUDING THAT OF THE
LEGISLATION NOW BEFORE US.  ALL MAY WELL BE CONSIDERED PARTS OF THE
LARGER AND OVER-ALL EFFORT TO AVERT CATACLYSMIC CHANGES WHICH WERE
THOUGHT TO THREATEN THE EQUILIBRIUM AND TRANQUILITY OF OUR SOCIETY. 
THIS COURT, IN ITS NOTABLE DECISION IN HOME BUILDING & LOAN ASSN. V.
BLAISDELL, 290 U.S. 398, UPHELD THAT PHASE OF THE MINNESOTA EFFORT
WHICH TOOK THE FORM OF A MORTGAGE MORATORIUM.  IN THE COURSE OF THE
OPINION, THE COURT QUOTED THE STATE ATTORNEY GENERAL, WHO IN HIS
ARGUMENT HERE HAD STATED:  "'TAX DELINQUENCIES WERE ALARMINGLY GREAT,
RISING AS HIGH AS 78% IN ONE COUNTY OF THE STATE.  IN SEVEN COUNTIES OF
THE STATE THE TAX DELINQUENCY WAS OVER 50%.  BECAUSE OF THESE
DELINQUENCIES MANY TOWNS, SCHOOL DISTRICTS, VILLAGES AND CITIES WERE
PRACTICALLY BANKRUPT'  ...  (AND) SERIOUS BREACHES OF THE PEACE HAD
OCCURRED."  FN9  THE POLICY BEHIND MORTGAGE MORATORIA AND THE POLICY
BEHIND TAX LENIENCY TO LANDOWNERS ARE INEXTRICABLY INTERTWINED.  FN10
THE BASIC PHILOSOPHY OF THE TWO TYPES OF LEGISLATION IS IDENTICAL.  FOR
ENCOURAGEMENT OF HOME AND FARM OWNERSHIP HAS ALWAYS BEEN TREATED AS A
MAJOR OBJECTIVE OF OUR SOCIAL AND GOVERNMENTAL POLICY.  AND THEREFORE
WHAT WAS SAID IN THE BLAISDELL CASE WITH REFERENCE TO THE CONTRACT
CLAUSE IS EQUALLY APPLICABLE HERE:  "NOT ONLY IS THE CONSTITUTIONAL
PROVISION QUALIFIED BY THE MEASURE OF CONTROL WHICH THE STATE RETAINS
OVER REMEDIAL PROCESSES, BUT THE STATE ALSO CONTINUES TO POSSESS
AUTHORITY TO SAFEGUARD THE VITAL INTERESTS OF ITS PEOPLE.  IT DOES NOT
MATTER THAT LEGISLATION APPROPRIATE TO THAT END 'HAS THE RESULT OF
MODIFYING OR ABROGATING CONTRACTS ALREADY IN EFFECT.'  STEPHENSON V.
BINFORD, 287 U.S. 251, 276.  NOT ONLY ARE EXISTING LAWS READ INTO
CONTRACTS IN ORDER TO FIX OBLIGATIONS AS BETWEEN THE PARTIES, BUT THE
RESERVATION OF ESSENTIAL ATTRIBUTES OF SOVEREIGN POWER IS ALSO READ
INTO CONTRACTS AS A POSTULATE OF THE LEGAL ORDER."  FN11    SO MUCH FOR
THE GENERAL SETTING WHICH GAVE RISE TO THE LAW HERE HELD INVALID.  IN
ORDER BETTER TO UNDERSTAND THE EFFECT THAT LAW HAD ON THE APPELLANTS
AND THE APPELLEE, IT IS NECESSARY TO CONSIDER OTHER PROVISIONS OF
ARKANSAS LAW. 

AT THE TIME APPELLANTS SECURED FROM THE STATE A QUITCLAIM DEED TO THE
LANDS HERE IN QUESTION, THE LAW PROVIDED TWO ALTERNATIVE MEANS OF
ASSURING PURCHASERS OF TAX FORFEITED LANDS AGAINST LOSS: 

(1)  SUCH PURCHASERS, UNDER CERTAIN CIRCUMSTANCES, COULD HOLD ON TO
THE LAND THROUGH THE PROTECTION AFFORDED BY THE REMEDIAL PROCESSES OF
THE COURTS; FN12 

(2)  IN CASE THEY COULD NOT HOLD ON TO THE LAND, SUCH PURCHASERS WERE
AFFORDED THE PROTECTION OF A JUDICIALLY ENFORCEABLE RIGHT TO BE
REIMBURSED BY THE LANDOWNER FOR THE AMOUNT PAID OUT FOR PURCHASE PRICE
AND SUBSEQUENT TAXES, WITH INTEREST, AS WELL AS FOR IMPROVEMENTS - ALL
IN THE EVENT THAT THE FORMER OWNERS OF THE LAND SHOULD FOR ANY REASON
BE ABLE TO PROVE THAT THE LANDS HAD NEVER BEEN VALIDLY FORFEITED.  ARK.
DIG.  STATS.  (POPE, 1937) SECS. 4663-4665, 13881. 

THE ARKANSAS LEGISLATURE, BY ACT 264 OF 1937, NARROWED THE
CIRCUMSTANCES UNDER WHICH PURCHASERS MIGHT HOLD ON TO THE LAND.  BUT
THE SECOND ALTERNATIVE ASSURANCE REMAINED INTACT. 

FROM MY STUDY OF THE CASE I AM OF OPINION THAT: 

(1)  THE 1937 ARKANSAS STATUTE HERE ATTACKED NEITHER IMPAIRED NOR
SOUGHT TO REPUDIATE ANY CONTRACTUAL AGREEMENT OR OBLIGATION EXPRESSLY
OR IMPLIEDLY ASSUMED BY THE STATE; 

(2)  THE 1937 ARKANSAS STATUTE WAS ENACTED WELL WITHIN THE STATE'S
GENERAL LEGISLATIVE POWERS AND IS IN NO WAY INCONSISTENT WITH THE TRUE
INTENT AND FAIR INTERPRETATION OF THE FEDERAL CONSTITUTIONAL
PROHIBITION WHICH COMMANDS THAT "NO STATE SHALL  ...  PASS ANY  ...
LAW IMPAIRING THE OBLIGATION OF CONTRACTS  ...  " 

FIRST.  THE STATE, BY QUITCLAIM DEEDS, WITHOUT ANY EXPRESS WARRANTY
WHATEVER, CONVEYED THE LANDS IN QUESTION TO APPELLANTS.  IT IS
APPELLANTS' CLAIM THAT AN "OBLIGATION OF THE CONTRACT CREATED BY THE
GRANT OF THE STATE" HAS BEEN IMPAIRED BY THE ARKANSAS STATUTE. 
STRIPPED OF SURPLUS VERBIAGE, APPELLANTS' NAKED CONTENTION IS THAT
ARKANSAS, BY ITS QUITCLAIM SALE AND CONVEYANCE, OBLIGATED ITSELF TO
REFRAIN FROM THEREAFTER PASSING A GENERAL LEGISLATIVE ENACTMENT IF SUCH
ENACTMENT WOULD AFFECT IN ANY MANNER ANY OF THE LEGAL MEANS PROVIDED TO
PROTECT TAX SALE PURCHASERS AGAINST LOSS.  WE NEED NOT HERE CONSIDER
WHETHER UNDER THE ARKANSAS CONSTITUTION THE LEGISLATURE COULD HAVE THUS
BARGAINED AWAY THE STATE'S LEGISLATIVE POWER IN SETTING UP A SCHEME FOR
THE SALE OF TAX FORFEITED LAND.  FOR THERE WAS NO ATTEMPT ON THE PART
OF THE STATE OFFICIALS WHO MADE THE SALE TO EXERCISE ANY SUCH
EXTRAORDINARY AUTHORITY. 

A DEED TO PROPERTY WITHOUT WARRANTY IS AN AGREEMENT TO TRANSFER
WHATEVER TITLE THE GRANTOR HAS.  AND EVEN WITHOUT EXPRESS LANGUAGE TO
THAT EFFECT IN THE CONVEYANCE, IT IS REASONABLE TO SAY THAT A VALID
QUITCLAIM CONVEYANCE CARRIES ALONG WITH IT AN IMPLIED OBLIGATION THAT
THE GRANTOR WILL NOT REPUDIATE THE GRANT AND ATTEMPT TO REASSERT TITLE
IN HIMSELF, FOR SUCH A REASSERTION OF TITLE WOULD BE CONTRARY TO THE
EXPRESS PURPOSE WHICH ACTUATED THE PARTIES IN REACHING THE AGREEMENT
WHICH ENDED IN THE CONVEYANCE.  THE IMPLIED OBLIGATION NOT TO REASSERT
TITLE WAS THE BASIS OF THE DECISION IN FLETCHER V. PECK, 6 CRANCH 87, A
DECISION WHICH THIS COURT RELIES ON IN THE CASE AT BAR.  CF. SATTERLEE
V. MATTHEWSON, 2 PET. 380, 414-415.  IN FLETCHER V. PECK, THE COURT
SAID:  "A CONTRACT EXECUTED, AS WELL AS ONE WHICH IS EXECUTORY,
CONTAINS OBLIGATIONS BINDING ON THE PARTIES.  A GRANT, IN ITS OWN
NATURE, AMOUNTS TO AN EXTINGUISHMENT OF THE RIGHT OF THE GRANTOR, AND
IMPLIES A CONTRACT, NOT TO REASSERT THAT RIGHT.  A PARTY IS, THEREFORE,
ALWAYS ESTOPPED BY HIS OWN GRANT."  FN13  WHAT THE STATE OF GEORGIA DID
IN THAT CASE WAS TO SEEK TO REASSERT TITLE TO LAND WHICH THE COURT
FOUND IT HAD CONVEYED FOR A CONSIDERATION UNDER WHAT THE COURT DEEMED
TO BE A VALID CONTRACT.  TRUE, GEORGIA WAS NOT A PARTY TO THE ACTUAL
LITIGATION, BUT BY PURPORTING TO CONVEY TO ONE PURCHASER LAND WHICH HAD
ALREADY BEEN CONVEYED BY IT TO ANOTHER PURCHASER THE STATE CLEARLY
ATTEMPTED TO ASSERT THAT IT STILL HAD TITLE TO THE LAND.  HERE THE
STATE OF ARKANSAS HAS NOT REPUDIATED ANY IMPLIED OBLIGATION BY
ATTEMPTING TO REASSERT TITLE IN THE LANDS WHOSE OWNERSHIP IS NOW IN
ISSUE.  THERE IS NO LITIGATION HERE BETWEEN THE STATE AND ITS GRANTEES,
AND NONE, AS IN FLETCHER V. PECK, BETWEEN RIVAL GRANTEES OF THE STATE. 
APPELLEE CLAIMS TITLE THROUGH AN OWNER WHOSE ESTATE ARKANSAS HAD
PURPORTEDLY FORFEITED FOR UNPAID TAXES.  NEITHER IN THE FACTS OF THIS
CASE NOR IN THE LEGISLATION ATTACKED IS THERE ANY KIND OF CHALLENGE TO
THE VALIDITY OF THE STATE'S CONVEYANCE OF ALL THE TITLE THE STATE
POSSESSED.  AS POINTED OUT ABOVE, FLETCHER V. PECK RESTED UPON THE
ASSUMPTION THAT THERE WAS A CONTINUING OBLIGATION ON THE PART OF THE
STATE, AS ON THE PART OF ANY OTHER GRANTOR, NOT TO REPUDIATE A VALID
CONVEYANCE AND ATTEMPT TO REASSERT A CLAIM TO PROPERTY WHICH HAD BEEN
SOLD.  SUCH A RULING OFFERS NO SUPPORT TO THE CONTENTION THAT ARKANSAS,
IN QUITCLAIMING ALL ITS INTEREST TO APPELLANTS, THEREBY ASSUMED A
CONTINUING CONTRACTUAL OBLIGATION THAT ITS LEGISLATIVE DEPARTMENT WOULD
IN NO WAY ALTER THE PROCEDURAL RULES TO BE FOLLOWED BY THE ARKANSAS
COURTS IN ADJUDICATING CONTROVERSIES BETWEEN THE STATE'S GRANTEES AND
THE ORIGINAL OWNERS WHOM THE STATE HAD ATTEMPTED TO DIVEST OF THEIR
PROPERTY BY THE DRASTIC METHOD OF FORFEITURE.  "THE TROUBLE AT THE
BOTTOM OF THE  ...  CASE IS THAT THE SUPPOSED PROMISE  ...  ON WHICH IT
IS FOUNDED DOES NOT EXIST.  IF SUCH A PROMISE HAD BEEN INTENDED IT WAS
FAR TOO IMPORTANT TO BE LEFT TO IMPLICATION."  KNOXVILLE WATER CO. V.
KNOXVILLE, 189 U.S. 434, 436.  "THE PATENT (HERE, THE QUITCLAIM DEED)
CONTAINS NO COVENANT TO DO OR NOT TO DO ANY FURTHER ACT IN RELATION TO
THE LAND; AND WE DO NOT, IN THIS CASE, FEEL AT LIBERTY TO CREATE ONE BY
IMPLICATION."  JACKSON V. LAMPHIRE, 3 PET. 280, 289.  "A CONTRACT
BINDING THE STATE IS ONLY CREATED BY CLEAR LANGUAGE, AND IS NOT TO BE
EXTENDED BY IMPLICATION BEYOND THE TERMS OF THE STATUTE.  ...  IN THE
CASE AT BAR  ...  THE ACT ...  OPERATED IN NO MANNER AS A RESTRAINT ON
THE LEGISLATURE OR AS A CONTRACT UPON ITS PART THAT THE STATE WOULD NOT
ACT WHENEVER IN ITS JUDGMENT IT PERCEIVED THE NECESSITY FOR AN
ADDITIONAL FERRY.  ...  NO PROMISE MADE BY THE LEGISLATURE BY THE FIRST
ACT IS BROKEN BY THE SECOND."  WILLIAMS V. WINGO, 177 U.S. 601, 603,
604.  "THERE IS NO UNDERTAKING ON THE PART OF THE STATE WITH THE
PURCHASER THAT THE REMEDY PRESCRIBED IN THIS STATUTE, AND NO OTHER,
SHALL BE PURSUED, UNLESS IT IS TO BE IMPLIED FROM THE MERE PRESENCE OF
THE PROVISION IN THE STATUTE, AND WE THINK IT IS WELL SETTLED THAT NO
SUCH IMPLICATION ARISES."  WILSON V. STANDEFER, 184 U.S. 399, 410. 

IN THIS CASE ARKANSAS HAS FULLY COMPLIED WITH THE EXPRESS TERMS OF
ITS CONTRACT.  FOR THERE WAS CERTAINLY NO EXPRESS OBLIGATION ON THE
PART OF ARKANSAS THAT ITS GENERAL LAWS CONCERNING FORFEITURE OF
PROPERTY AND SALE OF LAND SHOULD REMAIN STATIC.  NOR DO I BELIEVE THAT
ANY SUCH OBLIGATION CAN PROPERLY BE IMPLIED.  ARKANSAS DID NOT AGREE
WITH THE APPELLANTS THAT IT WOULD KEEP ON ITS STATUTE BOOKS LEGISLATION
WHICH IN EFFECT FORFEITED ITS CITIZENS' LANDS IN A WAY AND MANNER WHICH
WAS DIRECTLY IN THE TEETH OF WHAT HAD BEEN THE ARKANSAS LAW AT THE TIME
THE ALLEGED FORFEITURES OCCURRED.  AND I DO NOT BELIEVE THAT WE SHOULD
COMPEL THE ACCOMPLISHMENT OF SUCH A RESULT BY WHAT I CONCEIVE TO BE A
STRETCHING OF THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION. 

SECOND.  MEASURED EITHER BY THE CONSTITUTIONAL PROVISION ITSELF OR BY
THAT PROVISION AS CONSTRUED BY PRIOR DECISIONS OF THIS COURT, I AM OF
OPINION THAT THE ARKANSAS STATUTE IS CONSISTENT WITH WHAT WAS REFERRED
TO IN HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 438-439,
AS THE TRUE INTENT AND FAIR INTERPRETATION OF THE CONTRACT CLAUSE. 

WRITING IN 1817, JUDGE LIVINGSTON, OF THE FEDERAL CIRCUIT COURT OF
NEW YORK, HAD THIS TO SAY OF THE CONTRACT CLAUSE:  "THERE IS NOT,
PERHAPS, IN THE CONSTITUTION ANY ARTICLE OF MORE AMBIGUOUS IMPORT, OR
WHICH HAS OCCASIONED, AND WILL CONTINUE TO OCCASION, MORE DISCUSSION
AND DISAGREEMENT, ...  OR THE APPLICATION OF WHICH TO THE CASES WHICH
OCCUR WILL BE ATTENDED WITH MORE PERPLEXITY AND EMBARRASSMENT.  ...
AND IT WILL NOT BE SURPRISING IF, IN THE DISCHARGE OF IT, GREAT
DIVERSITY OF OPINION SHOULD ARISE."  ADAM V. STOREY, FED. CAS. NO. 66;
1 PAINE'S REP. 79, 88-89.  IN HOME BUILDING & LOAN ASSN. V. BLAISDELL,
SUPRA, WRITTEN IN 1933, APPEARS A RESUME OF PREVIOUS DECISIONS WHICH
SUBSTANTIATE THE ACCURACY OF JUDGE LIVINGSTON'S PROPHECY.  AND IN THE
BLAISDELL CASE THIS COURT QUOTED A STATEMENT ORIGINALLY MADE BY JUSTICE
JOHNSON IN OGDEN V. SAUNDERS, 12 WHEAT.  213, 286:  "BUT TO ASSIGN TO
CONTRACTS, UNIVERSALLY, A LITERAL PURPORT, AND TO EXACT FOR THEM A
RIGID LITERAL FULFILMENT, COULD NOT HAVE BEEN THE INTENT OF THE
CONSTITUTION.  IT IS REPELLED BY A HUNDRED EXAMPLES.  SOCIETIES
EXERCISE A POSITIVE CONTROL AS WELL OVER THE INCEPTION, CONSTRUCTION,
AND FULFILMENT OF CONTRACTS AS OVER THE FORM AND MEASURE OF THE REMEDY
TO ENFORCE THEM."  THE ACCURACY OF THIS STATEMENT CANNOT BE QUESTIONED
BY ONE WHO REFLECTS UPON THE EXTENT TO WHICH CONTRACTS AND AGREEMENTS
ARE A PART OF THE DAILY ACTIVITIES OF OUR SOCIETY.  FOR, SO NEARLY
UNIVERSAL ARE CONTRACTUAL RELATIONSHIPS THAT IT IS DIFFICULT IF NOT
IMPOSSIBLE TO CONCEIVE OF LAWS WHICH DO NOT HAVE EITHER DIRECT OR
INDIRECT BEARING UPON CONTRACTUAL OBLIGATIONS.  THEREFORE, IT WOULD GO
FAR TOWARDS PARALYZING THE LEGISLATIVE ARM OF STATE GOVERNMENTS TO SAY
THAT NO LEGISLATIVE BODY COULD EVER PASS A LAW WHICH WOULD IMPAIR IN
ANY MANNER ANY CONTRACTUAL OBLIGATION OF ANY KIND.  UPON A RECOGNITION
OF THIS BASIC TRUTH RESTS THE DECISION IN THE BLAISDELL CASE.  SUCH
RECOGNITION WAS MADE CLEAR BY THE USE OF THE FOLLOWING EXPRESSIONS,
EITHER QUOTED AND IMPLICITLY APPROVED, OR USED FOR THE FIRST TIME:
"THE PROHIBITION IS NOT AN ABSOLUTE ONE AND IS NOT TO BE READ WITH
LITERAL EXACTNESS LIKE A MATHEMATICAL FORMULA"; "NO ATTEMPT HAS BEEN
MADE TO FIX DEFINITELY THE LINE BETWEEN ALTERATIONS OF THE REMEDY,
WHICH ARE TO BE DEEMED LEGITIMATE, AND THOSE WHICH, UNDER THE FORM OF
MODIFYING THE REMEDY, IMPAIR SUBSTANTIAL RIGHTS.  EVERY CASE MUST BE
DETERMINED UPON ITS OWN CIRCUMSTANCES"; "IN ALL SUCH CASES THE QUESTION
BECOMES, THEREFORE, ONE OF REASONABLENESS, AND OF THAT THE LEGISLATURE
IS PRIMARILY THE JUDGE"; "THE QUESTION IS NOT WHETHER THE LEGISLATIVE
ACTION AFFECTS CONTRACTS INCIDENTALLY, OR DIRECTLY OR INDIRECTLY, BUT
WHETHER THE LEGISLATION IS ADDRESSED TO A LEGITIMATE END AND THE
MEASURES TAKEN ARE REASONABLE AND APPROPRIATE TO THAT END"; "IF IT BE
DETERMINED, AS IT MUST BE, THAT THE CONTRACT CLAUSE IS NOT AN ABSOLUTE
AND UTTERLY UNQUALIFIED RESTRICTION OF THE STATE'S PROTECTIVE POWER,
THIS LEGISLATION IS CLEARLY SO REASONABLE AS TO BE WITHIN THE
LEGISLATIVE COMPETENCY."  290 U.S. 398, 430, 438, 447. 

THE BLAISDELL DECISION REPRESENTED A REALISTIC APPRECIATION OF THE
FACT THAT OURS IS AN EVOLVING SOCIETY AND THAT THE GENERAL WORDS OF THE
CONTRACT CLAUSE WERE NOT INTENDED TO REDUCE THE LEGISLATIVE BRANCH OF
GOVERNMENT TO HELPLESS IMPOTENCY.  SEE VEIX V. SIXTH WARD BUILDING &
LOAN ASSN., 310 U.S. 32, 38.  WHETHER THE CONTRACT CLAUSE HAD BEEN
GIVEN TOO BROAD A CONSTRUCTION IN JUDICIAL OPINIONS PRIOR TO THE
BLAISDELL DECISION IS NOT NOW MATERIAL.  AND WHETHER I BELIEVE THAT THE
LANGUAGE QUOTED FROM THE BLAISDELL OPINION CONSTITUTES THE ULTIMATE
CRITERIA UPON WHICH LEGISLATION SHOULD BE MEASURED I NEED NOT NOW
DISCUSS.  FOR I AM OF OPINION THAT THE ARKANSAS STATUTE, PASSED IN
PURSUANCE OF A GENERAL PUBLIC POLICY OF THAT STATE, COMES WELL WITHIN
THE PERMISSIBLE AREA OF STATE LEGISLATION AS THAT AREA IS DEFINED BY
THE BLAISDELL CASE AND THE DECISIONS UPON WHICH THAT CASE RESTS.  FN14 

AS HAS ALREADY BEEN POINTED OUT, THE FORFEITURE IN THE CASE AT BAR
WAS WHOLLY INVALID UNDER WHAT WAS THE GOVERNING LAW AT THE TIME OF SUCH
FORFEITURE.  THAT INVALIDITY WAS RENDERED UNAVAILING TO THE LAND'S
FORMER OWNERS - AND TO ALL OTHER OWNERS SIMILARLY SITUATED - BY THE
1935 ACT.  AS HAS ALSO BEEN POINTED OUT, EXPERIENCE EVIDENTLY
DEMONSTRATED TO THE LEGISLATURE THAT THE BEST INTEREST OF ALL THE
PEOPLE OF THE STATE WAS NOT SERVED BY THE CHANGE EFFECTED BY THE 1935
ACT; HENCE ITS REPEAL IN 1937.  IN ARKANSAS, AS APPELLANTS ARGUE HERE,
"THESE ACTIONS TO CANCEL TAX DEEDS ARE IN THEIR ESSENTIAL NATURE
NOTHING MORE OR LESS THAN SUITS TO REDEEM THE PROPERTY  ...  "  AND IT
HAS LONG BEEN RECOGNIZED AS THE LAW IN ARKANSAS THAT "THE RIGHT TO
REDEEM LANDS FROM A TAX SALE DEPENDS UPON THE STATUTE IN FORCE AT THE
DATE OF THE SALE."  THOMPSON V. SHERRILL, 51 ARK. 453, 458; 11 S.W.
689; GROVES V. KEENE, 105 ARK. 40, 43; 150 S.W. 575.  AT THE TIME OF
THE FORFEITURE AND SALE TO THE STATE, ARKANSAS LAW PROTECTED THE
PURCHASER BY PROVIDING THAT HE SHOULD BE REIMBURSED AND MADE WHOLE IN
CASE HIS TAX PURCHASE WAS SET ASIDE FOR IRREGULARITY.  THAT PROTECTION
IS TODAY AFFORDED TO THE FULL EXTENT THAT IT WAS WHEN APPELLANTS BOUGHT
THE LAND; THE REPEALING ACT OF WHICH APPELLANTS COMPLAIN DID NOT TAKE
AWAY ANY PART OF THAT RIGHT.  FROM ALL OF THIS IT IS MANIFEST THAT THE
ENTIRE PLAN OF THE STATE IN CONNECTION WITH TAX SALES, BOTH BEFORE AND
AFTER THE REPEALING ACT OF 1937, SHOWS A SCRUPULOUS DESIRE TO PROVIDE
COMPENSATION FOR THE PURCHASER IN ORDER THAT HE MAY NOT SUFFER
PECUNIARY LOSS, WHATEVER MAY BE THE CONSEQUENCES OF A SUIT FOR THE
LAND.  AND THE WHOLE COURSE OF LEGISLATION IN ARKANSAS SHOWS A DESIRE
TO BE FAIR BOTH TO THE PURCHASER OF TAX FORFEITED LAND AND TO THE
FORMER OWNERS WHOSE LAND IS ABOUT TO BE LOST BY REASON OF THE DRASTIC
DEVICE OF FORFEITURE.  CF. CURTIS V. WHITNEY, 13 WALL.  68, 71.  I
CANNOT BELIEVE THAT THE TRUE INTENT AND INTERPRETATION OF THE CONTRACT
CLAUSE PROHIBITS ARKANSAS FROM MAKING SUCH AN EFFORT TO PRESERVE THE
RIGHTS OF BOTH THE LANDOWNER AND THE ONE WHO CLAIMS THE LANDOWNER'S
FORFEITED PROPERTY.  ARKANSAS HAS NOT HERE TAKEN AWAY
APPELLANTS'"ENTIRE REMEDY" BUT HAS DONE SO "IN PART ONLY."  MASON V.
HAILE, 12 WHEAT.  370, 378.  I AM WILLING TO CONCEDE THAT THERE MAY BE
A "VAST DISPROPORTION BETWEEN THE VALUE OF THE LAND AND THE SUM FOR
WHICH IT IS USUALLY BID OFF AT SUCH SALES."  CURTIS V. WHITNEY, SUPRA,
AT 70.  BUT ASSUMING THAT THE TAX FORFEITED LAND HERE WAS OBTAINED AT
SUCH A BARGAIN, I AM STILL OF THE OPINION THAT THESE APPELLANTS - WHO
HAVE THE RIGHT TO THEIR MONEY, WITH INTEREST - HAVE BEEN DENIED NO
RIGHT GUARANTEED BY THE CONTRACT CLAUSE.  AND IN THIS CONNECTION IT IS
NOT TO BE FORGOTTEN THAT APPELLANTS COULD HAVE OBTAINED A PERFECT TITLE
BY OPENLY AND ADVERSELY HOLDING POSSESSION OF THE LAND FOR TWO YEARS -
A PRIVILEGE WHICH THE STATE COURTS FINALLY AND AUTHORITATIVELY FOUND
HAD NOT BEEN EXERCISED.  TAX SOLD PROPERTIES ARE UNDOUBTEDLY BOUGHT
WITH THE KNOWLEDGE ON THE PART OF THOSE WHO SPECULATE  FN15  IN THEM
THAT STATES ORDINARILY ADOPT A LIBERAL POLICY IN ORDER TO PROTECT
PROPERTY OWNERS FROM TAX FORFEITURE.  AND EVEN GRANTING THAT WE COULD
ENTER INTO QUESTIONS OF POLICY, I WOULD BE UNABLE TO REACH THE
CONCLUSION THAT ARKANSAS, BY REPEALING ITS 1935 STATUTE, ACTED "WITHOUT
...  REASON OR IN A SPIRIT OF OPPRESSION."  W.B. WORTHEN CO. V.
KAVANAUGH, 295 U.S. 56, 60.  IT WOULD SEEM TO ME TO BE DIFFICULT TO
SUPPORT AN ARGUMENT THAT ARKANSAS WAS ACTING EITHER UNREASONABLY,
UNJUSTLY, OPPRESSIVELY, OR COUNTER TO SOUND PUBLIC POLICY IN ADOPTING A
LAW WHICH, WITHOUT DEPRIVING PURCHASERS OF THE RIGHT TO RECOVER THEIR
MONEY OUTLAY, WITH INTEREST, SOUGHT TO MAKE THE WAY EASY FOR FORMER
HOME OWNERS AND PROPERTY OWNERS OF ALL TYPES TO REACQUIRE POSSESSION
AND OWNERSHIP OF FORFEITED PROPERTY.  IF UNDER THE CONTRACT CLAUSE IT
IS JUSTIFIABLE TO SEEK TO FIND "A RATIONAL COMPROMISE BETWEEN
INDIVIDUAL RIGHTS AND PUBLIC WELFARE," HOME BUILDING & LOAN ASSN. V.
BLAISDELL, SUPRA, AT 442, THEN IT SEEMS TO ME THAT THIS IS A CASE FOR
THE APPLICATION OF THAT PRINCIPLE.  I DO NOT BELIEVE THAT THE ARKANSAS
LEGISLATURE IS PROHIBITED BY THE FEDERAL CONSTITUTION FROM ADOPTING THE
PUBLIC POLICY WHICH THE DECISION OF THE ARKANSAS SUPREME COURT HAS
UPHELD IN THIS CASE.  "ESPECIAL RESPECT SHOULD BE HAD TO SUCH DECISIONS
WHEN THE DISPUTE ARISES OUT OF GENERAL LAWS OF A STATE, REGULATING ITS
EXERCISE OF THE TAXING POWER, OR RELATING TO THE STATE'S DISPOSITION OF
ITS PUBLIC LANDS."  FN16 

FN1  ARK. ACTS 1935, NO. 119, SEC. 12.  IN DESHA COUNTY, WHERE THE
LANDS HERE INVOLVED ARE LOCATED, TAX DELINQUENCY AS OF DECEMBER 31,
1933, AMOUNTED TO 57.5%.  THIS WAS THE HIGHEST FIGURE REPORTED FOR ANY
COUNTY IN THE STATE.  REALTY TAX DELINQUENCY (BUREAU OF THE CENSUS,
1934) VOL. I, PART II, ARKANSAS, PP. 3-4.  AND SEE BRANNEN, TAX
DELINQUENT RURAL LANDS IN ARKANSAS (UNIVERSITY OF ARKANSAS, COLLEGE OF
AGRICULTURE, BULLETIN NO. 311, 1934) PASSIM. 

FN2  BRANNEN, TAX DELINQUENCY IN ARKANSAS, 15 SOUTHWESTERN SOCIAL
SCIENCE QUARTERLY 201, 206-207(1934); BRANNEN, TAX DELINQUENT RURAL
LANDS IN ARKANSAS, SUPRA, P. 35.  AND SEE BERRY V. DAVIDSON, 199 ARK.
276, 280; 133 S.W.2D 442. 

FN3  ARKANSAS HAS EXPRESSED ITS CONTINUING SOLICITUDE IN THIS REGARD
BY NUMEROUS ACTS OF ITS LEGISLATURE.  FOR EXAMPLE, BY SUCH AN ACT
ARKANSAS TAXPAYERS WERE PERMITTED TO RETAIN TITLE TO THEIR REAL
PROPERTY FOR THREE YEARS BY PAYING TAXES FOR ONLY ONE YEAR.  SEE THIRD
BIENNIAL REPORT, ARKANSAS STATE TAX COMMISSION (1931-32) P. 6. 

FN4  OCHILTREE V. RAILROAD CO., 21 WALL.  249, 251. 

FN5  REALTY TAX DELINQUENCY (BUREAU OF THE CENSUS, 1934) VOL. 1, PP.
6-7.  BY STATES, TAX DELINQUENCY VARIED FROM A LOW OF 6% IN
MASSACHUSETTS TO A HIGH OF 40.5% IN MICHIGAN.  NORTH DAKOTA (37.5%),
ILLINOIS (37%) AND FLORIDA (36%) FOLLOWED CLOSE AFTER MICHIGAN. 

FN6  PUTNEY, TAX DELINQUENCY IN THE UNITED STATES, IN EDITORIAL
RESEARCH REPORTS (VOL. II, 1935) 327.  AND SEE FAIRCHILD, THE PROBLEM
OF TAX DELINQUENCY (1934) 24 AMERICAN ECONOMIC REVIEW 140, 144. 

FN7  PROCEEDINGS OF THE NATIONAL TAX ASSOCIATION (1933) 28-30; CF.
ID. (1934) 30-31.  FOR A COMPLETE LIST OF CHANGES IN TAX COLLECTION
PROCEDURE MADE DURING THE 1930-1934 PERIOD, SEE REALTY TAX DELINQUENCY
(BUREAU OF THE CENSUS, 1934) VOL. 1, PP. IA-III. 

FN8  JUSTICE OLSEN OF THE MINNESOTA SUPREME COURT, AS QUOTED IN HOME
BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 423. 

FN9  HOME BUILDING & LOAN ASSN. V. BLAISDELL, SUPRA, AT 424. 

FN10  CF.  THE FARM DEBT PROBLEM, LETTER FROM THE SECRETARY OF
AGRICULTURE (73RD CONG., 1ST SESS., HOUSE DOC. NO. 9) PP. 26-29. 

FN11  HOME BUILDING & LOAN ASSN. V. BLAISDELL, SUPRA, AT 434-435. 

FN12  THERE WERE THREE PRINCIPAL WAYS BY WHICH PURCHASERS OF TAX
TITLES COULD HOLD ON TO THE LAND: 

(1)  BY ACQUIRING A VALID TAX DEED.  (THE TAX DEEDS HERE WERE
ADMITTEDLY INVALID UNDER THE LAWS EXISTING AT THE TIME OF FORFEITURE.) 

(2)  BY TWO YEARS OPEN AND ADVERSE POSSESSION.  (THOUGH OVER TWO
YEARS HAD ELAPSED BETWEEN THE DATE OF PURCHASE AND THE BEGINNING OF
THIS LITIGATION, THE COURTS BELOW FOUND THAT THE PURCHASERS HAD NOT
AVAILED THEMSELVES OF THIS REMEDY.) 

(3)  BY FAILURE OF THE FORMER LANDOWNER TO COMPENSATE THE PURCHASER
FOR HIS EXPENDITURES.  (THE ORDER OF THE COURT BELOW PROVIDED THAT SUCH
COMPENSATION BE PAID.) 

FN13  6 CRANCH 87, 137.  IN THAT CASE MR. JUSTICE JOHNSON DENIED THAT
THE IMPAIRMENT OF CONTRACT CLAUSE WAS INTENDED TO APPLY TO CONTRACTS
ALREADY FULLY EXECUTED.  ID., AT 145.  THAT QUESTION, HOWEVER, IS NOT
MATERIAL TO THE POINT HERE UNDER DISCUSSION. 

FN14  THE ONLY PART OF THE BLAISDELL DECISION MENTIONED BY THE COURT
IN THE CASE AT BAR IS A PASSAGE QUOTING A STATEMENT WHICH IN BLAISDELL
THE CHIEF JUSTICE QUOTED FROM VON HOFFMAN V. CITY OF QUINCY, 4 WALL. 
535, 550, 552:  "THE LAWS WHICH SUBSIST AT THE TIME AND PLACE OF THE
MAKING OF A CONTRACT, AND WHERE IT IS TO BE PERFORMED, ENTER INTO AND
FORM A PART OF IT, AS IF THEY WERE EXPRESSLY REFERRED TO OR
INCORPORATED IN ITS TERMS."  THE COURT NOW QUOTES THIS LANGUAGE AS THE
GOVERNING LAW.  IN THE BLAISDELL CASE, HOWEVER, THE CHIEF JUSTICE
FOLLOWED THE QUOTATION WITH THIS STATEMENT:  "BUT THIS BROAD LANGUAGE
CANNOT BE TAKEN WITHOUT QUALIFICATION.  CHIEF JUSTICE MARSHALL POINTED
OUT THE DISTINCTION BETWEEN OBLIGATION AND REMEDY.  STURGES V.
CROWNINSHIELD, SUPRA (4 WHEAT.  122), P. 200.  SAID HE:  'THE
DISTINCTION BETWEEN THE OBLIGATION OF A CONTRACT, AND THE REMEDY GIVEN
BY THE LEGISLATURE TO ENFORCE THAT OBLIGATION, HAS BEEN TAKEN AT THE
BAR, AND EXISTS IN THE NATURE OF THINGS.  WITHOUT IMPAIRING THE
OBLIGATION OF THE CONTRACT, THE REMEDY MAY CERTAINLY BE MODIFIED AS THE
WISDOM OF THE NATION SHALL DIRECT.'"  HOME BUILDING & LOAN ASSN. V.
BLAISDELL, SUPRA, AT 430.  AND CHIEF JUSTICE MARSHALL, ELABORATING HIS
VIEWS OF THIS SAME SUBJECT IN HIS DISSENTING OPINION IN OGDEN V.
SAUNDERS, 12 WHEAT.  213, 343, 353, SAID:  "WE HAVE, THEN, NO
HESITATION IN SAYING THAT, HOWEVER LAW MAY ACT UPON CONTRACTS, IT DOES
NOT ENTER INTO THEM, AND BECOME A PART OF THE AGREEMENT.  THE EFFECT OF
SUCH A PRINCIPLE WOULD BE A MISCHIEVOUS ABRIDGMENT OF LEGISLATIVE POWER
OVER SUBJECTS WITHIN THE PROPER JURISDICTION OF STATES, BY ARRESTING
THEIR POWER TO REPEAL OR MODIFY SUCH LAWS WITH RESPECT TO EXISTING
CONTRACTS."  "WE THINK, THAT OBLIGATION AND REMEDY ARE DISTINGUISHABLE
FROM EACH OTHER.  THAT THE FIRST IS CREATED BY THE ACT OF THE PARTIES,
THE LAST IS AFFORDED BY GOVERNMENT." 

FN15  TREAT V. ORONO, 26 ME. 217; LISSO & BRO. V. NATCHITOCHES, 127
LA. 283; 53 SO. 566; LYNDE V. MELROSE, 10 ALLEN (MASS.) 49.  AND SEE
UPSON, LOCAL GOVERNMENT FINANCE IN THE DEPRESSION, 24 NATIONAL
MUNICIPAL REVIEW 503, 506.  ("ORDINARILY, IN IMPORTANT COMMUNITIES TAX
TITLE BUYING HAS BEEN IN THE HANDS OF PROFESSIONAL BUYERS INTERESTED IN
SECURING A QUICK TURNOVER OF INVESTMENTS AND BY NO MEANS DESIRING TO
GET INTO THE REAL ESTATE BUSINESS THROUGH THE ACTUAL ACQUISITION OF
PROPERTIES.") 

FN16  WILSON V. STANDEFER, 184 U.S. 399, 412. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY CONCUR IN THIS OPINION. 
..END :












WATSON V. BUCK, 313 U.S. 387 


NO. 610.  ARGUED APRIL 29, 30, 1941.  - DECIDED MAY 26, 1941.  - 34
F.SUPP.  510, REVERSED IN PART - AFFIRMED IN PART. 


1.  A FEDERAL COURT, UPON FINDING UNCONSTITUTIONAL SOME PARTS OF A
STATE STATUTE EMBRACING MANY PROVISIONS, IS NOT JUSTIFIED IN DECLARING
IT VOID IN TOTO, UPON THE GROUND THAT THE LEGISLATURE INTENDED TO FORM
A HARMONIOUS WHOLE, WHERE PARTS WHOSE VALIDITY STANDING ALONE WAS NOT
PASSED UPON ARE COMPLETE IN THEMSELVES AND WHERE THE STATUTE DECLARES
THAT THE INVALIDITY OF ANY PART SHALL NOT AFFECT THE OTHERS.  P. 395. 

2.  CRIMINAL PROCEEDINGS TO ENFORCE A STATE STATUTE, EVEN THOUGH IT
BE UNCONSTITUTIONAL, ARE NOT TO BE ENJOINED BY A FEDERAL COURT IN THE
ABSENCE OF A DEFINITE THREAT OF PROSECUTION AND OF A CLEAR SHOWING OF
GREAT AND IMMEDIATE DANGER OF IRREPARABLE LOSS.  P. 400. 

3.  AS A RULE, THE CONSTITUTIONALITY OF STATE STATUTES CONTAINING
MANY SEPARATE AND DISTINCT PROVISIONS, WHICH HAVE NOT BEEN PASSED UPON
BY THE SUPREME COURT OF THE STATE, SHOULD BE DETERMINED AS CASES ARISE
FROM SPECIFIC APPLICATIONS OF THE STATUTE, AND PREFERABLY BY THE STATE
COURTS.  P. 401. 

4.  THE COPYRIGHT LAWS DO NOT GRANT TO COPYRIGHT OWNERS THE PRIVILEGE
OF COMBINING IN VIOLATION OF OTHERWISE VALID STATE LAWS.  P. 404. 

5.  SECTION 1 OF THE FLORIDA LAWS OF 1937, C. 17807, WHICH DEFINES AS
AN UNLAWFUL COMBINATION AN AGGREGATION OF AUTHORS, COMPOSERS,
PUBLISHERS, AND OWNERS OF COPYRIGHTED VOCAL OR INSTRUMENTAL MUSICAL
COMPOSITIONS WHO FORM ANY SOCIETY, ASSOCIATION, OR THE LIKE, AND THE
MEMBERS OF WHICH CONSTITUTE A SUBSTANTIAL NUMBER OF THE PERSONS, FIRMS
OR CORPORATIONS WITHIN THE UNITED STATES WHO OWN OR CONTROL SUCH
MUSICAL COMPOSITIONS, "WHEN ONE OF THE OBJECTS OF SUCH COMBINATION IS
THE DETERMINATION AND FIXATION OF LICENSE FEES OR OTHER EXACTIONS
REQUIRED BY SUCH COMBINATION FOR ITSELF OR ITS MEMBERS OR OTHER
INTERESTED PARTIES," AND WHICH MAKES IT AN OFFENSE FOR SUCH
COMBINATIONS TO ACT WITHIN THE STATE IN VIOLATION OF THE TERMS OF THE
STATUTE, DOES NOT CONTRAVENE THE COPYRIGHT LAWS OR THE FEDERAL
CONSTITUTION.  P. 404. 

WATSON, ATTORNEY GENERAL OF FLORIDA, ET AL. V. BUCK ET AL.* 

*TOGETHER WITH NO. 611, BUCK ET AL. V. WATSON, ATTORNEY GENERAL OF
FLORIDA, ET AL., ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF FLORIDA. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF FLORIDA. 

APPEAL AND CROSS-APPEAL FROM A DECREE OF THE DISTRICT COURT,
CONSTITUTED OF THREE JUDGES, WHICH ENJOINED THE PROSECUTING OFFICERS OF
THE STATE OF FLORIDA FROM ENFORCING A FLORIDA STATUTE OF 1937 DEFINING
AND FORBIDDING UNLAWFUL COMBINATIONS OF AUTHORS, COMPOSERS, PUBLISHERS,
AND OWNERS OF COPYRIGHTED VOCAL OR INSTRUMENTAL MUSICAL COMPOSITIONS,
ETC., AND WHICH GRANTED THE INJUNCTION ALSO, BUT ONLY AS TO CERTAIN
1939.  THE CASE WAS CONSIDERED BY THIS COURT IN EARLIER ASPECTS IN
GIBBS V. BUCK, 307 U.S. 66.  ATTORNEY GENERAL WATSON WAS SUBSTITUTED
FOR HIS PREDECESSOR MR. GIBBS. 

ORGANIZATION OF THE SOCIETY WAS NECESSARY TO MEET THE EVIL OF
WHOLESALE INFRINGEMENT OF COPYRIGHTED MUSICAL WORKS BY UNAUTHORIZED
PUBLIC PERFORMANCES FOR PROFIT.  THE NATURE OF THE RIGHT OF "PUBLIC
PERFORMANCE FOR PROFIT" REQUIRES COLLECTIVE ACTION ON THE PART OF
CREATORS AND PUBLISHERS. 

COOPERATIVE LICENSING IS NECESSARY BECAUSE OF DIVIDED AND DIVERSE
OWNERSHIP OF PERFORMING RIGHTS.  THE BLANKET LICENSE IS THE ONLY
FEASIBLE METHOD OF LICENSING THE "SMALL RIGHT."  IT IS IMPOSSIBLE TO
ASSIGN IN ADVANCE A SEPARATE PRICE FOR EACH PERFORMANCE OF SPECIFIED
COMPOSITIONS; NOR IS IT POSSIBLE TO BARGAIN SEPARATELY FOR EACH USE. 
THE BLANKET LICENSE OVERCOMES THESE OBSTACLES.  IT ENABLES THE SOCIETY
TO ISSUE LICENSES AT A VERY LOW COST TO THE USER. 

THE SOCIETY CONTROLS ONLY A SMALL PART OF AVAILABLE MUSIC. 

THE STATUTES VIOLATE THE COPYRIGHT CLAUSE OF THE FEDERAL
CONSTITUTION.  (1) THEY INVADE A FIELD DELEGATED TO CONGRESS,
NULLIFYING THE MOST VITAL PROVISIONS OF THE 1909 REVISION OF THE
COPYRIGHT LAWS, AND CONFISCATING PLAINTIFFS' RIGHT OF PUBLIC
PERFORMANCE FOR PROFIT BY BARRING THEM FROM LICENSING THEIR COPYRIGHTED
MUSICAL COMPOSITIONS IN THE ONLY MANNER THAT IS COMMERCIALLY FEASIBLE;
AND (2) THEY DISCRIMINATE AGAINST OWNERS OF COPYRIGHTED WORKS. 

THE 1937 ACT CONTAINS NO LEGISLATIVE FINDING AS TO ANY EXISTING EVIL
REQUIRING ITS PASSAGE.  NOR WAS ANY ESTABLISHED AT THE TRIAL.  THE
COURT BELOW FOUND THAT THE ACT WAS NOT A REASONABLE EXERCISE OF THE
POLICE POWER OF THE STATE AND THAT ITS TRUE PURPOSE WAS TO DEPRIVE
PLAINTIFFS OF THEIR COPYRIGHTED COMPOSITIONS FOR THE PRIVATE BENEFIT OF
410 COMMERCIAL USERS IN FLORIDA. 

THE 1939 ACT DOES NOT PURPORT TO REGULATE OR PENALIZE COMBINATIONS IN
RESTRAINT OF TRADE.  IT REQUIRES VIRTUAL DUPLICATION OF ALL DATA FILED
WITH THE REGISTER OF COPYRIGHTS UNDER THE ACT OF 1909 FOR THE ALLEGED
PURPOSE OF ENABLING FLORIDA USERS TO AVOID INNOCENT INFRINGEMENT.  IT
BARS TWO OR MORE COPYRIGHT OWNERS FROM ISSUING BLANKET LICENSES IN
FLORIDA UNLESS THEY GIVE ALL USERS IN THE STATE AN OPTION TO HAVE A
LICENSE TO PERFORM EACH SEPARATE COMPOSITION AT A PRICE FIXED
INDEPENDENTLY IN ADVANCE BY EACH OWNER FOR EACH USER IN THE STATE, AND
STATED IN A SCHEDULE FILED AT LEAST SEVEN DAYS PRIOR TO THE ISSUANCE OF
THE LICENSE IF THE PRICE CHARGED IS TO DIFFER FROM ANY PRICE PREVIOUSLY
SCHEDULED.  WHETHER A BLANKET LICENSE OR ANY OTHER FORM OF LICENSE IS
ISSUED BY A SINGLE PERSON OR BY MANY, THE LICENSE FEE MUST NOT BE BASED
IN WHOLE OR IN PART UPON A PROGRAM NOT USING SUCH COMPOSITION.  IN
OTHER WORDS, THE LICENSE FEE MUST BE COMPUTED SOLELY UPON THE VALUE OF
THE COMPOSITION IN THE PARTICULAR PROGRAM EVEN THOUGH IT MAY BE
ESTABLISHED THAT THE USE OF THE COMPOSITION IN THE PARTICULAR PROGRAM
ENHANCES THE VALUE OF THE PRECEDING AND SUCCEEDING PROGRAMS WHICH DO
NOT ACTUALLY EMPLOY THE LICENSED COMPOSITION.  A TAX OF THREE PER CENT.
IS IMPOSED ON GROSS LICENSE FEES COLLECTED. 

THE ACTION OF CONGRESS IN FULLY COVERING THE FIELD IN THE 1909
REVISION OF THE COPYRIGHT ACT BARS THE STATES FROM MAKING ANY
REGULATIONS IN THAT FIELD.  H.R. REPT. NO. 2222, 60TH CONG., 2D SESS.,
1909; NAPIER V. ATLANTIC COAST LINE RY. CO., 272 U.S. 605; JENNINGS V.
U.S. FIDELITY & GUARANTY CO., 294 U.S. 216, 226. 

ALL RIGHTS GRANTED UNDER THE 1909 COPYRIGHT LAW WERE EXPRESSLY MADE
EXCLUSIVE (SEC. 1).  THIS COURT HAD MANY TIMES PREVIOUSLY PASSED UPON
THE EXCLUSIVE NATURE OF THOSE RIGHTS.  BURROWS-GILES LITHOGRAPH CO. V.
SARONY, 111 U.S. 53, 56, 59; AMERICAN TOBACCO CO. V. WERCKMEISTER, 207
U.S. 284, 291; CALIGA V. INTER OCEAN NEWSPAPER CO., 215 U.S. 182, 188. 

NOT EVEN THE UNITED STATES MAY INVADE THE EXCLUSIVE RIGHTS OF OWNERS
OF COPYRIGHTS OR PATENTS.  UNITED STATES V. DUBILIER CONDENSER CORP.,
289 U.S. 178, 186, 189; JAMES V. CAMPBELL, 104 U.S. 356, 358; UNITED
STATES V. BELL TELEPHONE CO., 167 U.S. 224, 249-50. 

COPYRIGHT OWNERS CANNOT BE COMPELLED TO GRANT LICENSES EXCEPT UPON
THEIR OWN TERMS AND AT PRICES FIXED BY SUCH OWNERS.  F.A.D. ANDREA,
INC. V. RADIO CORP., 88 F.2D 474; BUCK V. HILLSGROVE COUNTRY CLUB,
INC., 17 F.SUPP.  643.  THE SEVERAL STATES MAY NOT PASS LAWS TO THE
CONTRARY.  HENRY BILL PUB. CO. V. SMYTHE, 27 F. 914, 917. 

THE EXCLUSIVE PERFORMING RIGHTS (SEC. 1(E) OF THE ACT) INCLUDE
PERFORMANCES BY LIVE MUSICIANS IN HOTELS, RESTAURANTS AND NIGHT CLUBS
(HERBERT V. SHANLEY, 242 U.S. 591); PERFORMANCES BY MEANS OF RADIO
BROADCASTING OR REBROADCASTING (BUCK V. JEWELL-LASALLE REALTY CO., 283
U.S. 191); AND BY MEANS OF RADIO RECEIVING SETS IN HOTEL ROOMS OPERATED
FROM A MASTER-CONTROLLED SET.  SOCIETY OF EUROPEAN AUTHORS V. NEW YORK
STATLER HOTEL, INC., 19 F.SUPP.  1. 

THE COPYRIGHT LAW PERMITS A PURCHASER OF A PHONOGRAPH RECORD OR
ELECTRICAL TRANSCRIPTION TO PERFORM IT PRIVATELY, BUT HE MAY NOT
PERFORM IT PUBLICLY FOR PROFIT WITHOUT THE EXPRESS CONSENT OF THE
COPYRIGHT OWNER.  IRVING BERLIN, INC. V. DAIGLE, 31 F.2D 832; LUTZ V.
BUCK, 40 F.2D 501. 

THE STATE STATUTES CONFISCATE PLAINTIFFS' RIGHT OF PUBLIC PERFORMANCE
FOR PROFIT; ABRIDGE AND REGULATE RIGHTS GRANTED THEM UNDER THE
COPYRIGHT ACT AND BAR THEM FROM SEPARATELY LICENSING THE SEVERAL RIGHTS
GRANTED TO THEM BY CONGRESS; DISCRIMINATE AGAINST OWNERS OF COPYRIGHTED
MUSICAL WORKS BY FAILING TO INCLUDE, AND THEREBY EXEMPTING, OWNERS OF
MUSICAL WORKS PROTECTED UNDER THE COMMON LAW. 

THE PENALTIES AND FORFEITURES IMPOSED FOR VIOLATION ARE FAR MORE
SEVERE THAN THOSE IMPOSED UNDER OTHER FLORIDA LAWS ON COMBINATIONS
ACTUALLY MONOPOLIZING OR RESTRAINING TRADE. 

THE STATE STATUTES DISCRIMINATE AGAINST COPYRIGHT OWNERS BY DENYING
THEM THE RIGHT TO SHOW THE REASONABLENESS OF THEIR ASSOCIATION AND THE
FACT THAT THEY DO NOT ACTUALLY MONOPOLIZE OR RESTRAIN TRADE. 

THE STATUTES FALL SQUARELY WITHIN THE CONDEMNATION OF MCFARLAND V.
AMERICAN SUGAR REFINING CO., 241 U.S. 79, BY CREATING ARBITRARY
PRESUMPTIONS MAKING PLAINTIFFS PRIMA FACIE GUILTY.  MORRISON V.
CALIFORNIA, 291 U.S. 82, 90. 

BOTH THE 1937 AND 1939 ACTS DISCRIMINATE IN FAVOR OF THOSE WHO HAVE
NOT COPYRIGHTED THEIR COMPOSITIONS PURSUANT TO THE STATUTE OF 1909, BUT
RELY UPON THEIR COMMON LAW RIGHT, AS AGAINST THOSE WHO HAVE AVAILED
THEMSELVES OF THE 1909 ACT. 

THE 1937 ACT DISCRIMINATES IN FAVOR OF COPYRIGHT OWNERS RESIDING
OUTSIDE OF THE UNITED STATES, AS AGAINST THOSE WHO RESIDE WITHIN THE
UNITED STATES. 

THE STATUTES DISCRIMINATE BETWEEN OWNERS OF COPYRIGHTED MUSICAL
COMPOSITIONS AND OTHER COPYRIGHT OWNERS. 

THE LEGISLATURE MAY NOT, UNDER THE GUISE OF PROTECTING THE PUBLIC
INTERESTS, ARBITRARILY INTERFERE WITH PRIVATE BUSINESS, OR IMPOSE
UNUSUAL AND UNNECESSARY RESTRICTIONS UPON LAWFUL OCCUPATIONS.  LAWTON
V. STEELE, 152 U.S. 133, 137. 

NATIONAL AND STATE ANTI-TRUST LAWS ARE DESIGNED TO REGULATE
MARKETING, AND MAY NOT BE USED AS A SCREEN TO DESTROY IT.  SUCH LAWS
ARE NECESSARILY BASED UPON THE ASSUMPTION THAT THERE IS A RIGHT WAY AND
A WRONG WAY OF MARKETING PROPERTY.  THERE IS ONLY ONE WAY BY WHICH THE
OWNERS OF COPYRIGHTED MUSICAL COMPOSITIONS MAY OBTAIN REVENUE FOR THE
PUBLIC PERFORMANCE FOR PROFIT OF SUCH COMPOSITIONS, AND THAT WAY IS BY
COLLECTIVE ACTION.  WITHOUT SUCH COLLECTIVE ACTION THE EXCLUSIVE RIGHT
OF PUBLIC PERFORMANCE FOR PROFIT BECOMES UNENFORCEABLE. 

THE STATUTES IMPAIR OBLIGATIONS UNDER EXISTING CONTRACTS. 

THE STATUTES VIOLATE THE FOURTEENTH AMENDMENT BY INTERFERING WITH
PLAINTIFFS' RIGHT TO DO BUSINESS OUTSIDE OF THE STATE, AND INTERFERE
WITH INTERSTATE COMMERCE BY REQUIRING PRICES TO BE FIXED ON SHEETS OF
MUSIC AND PHONOGRAPH RECORDS COMING FROM OUTSIDE OF THE STATE AND
PRESCRIBING THE USES THAT CAN BE MADE OF SUCH COMPOSITIONS AND RECORDS,
AS WELL AS BY THE PROVISIONS RESPECTING BROADCASTING. 

THE SOCIETY IS NOT AN UNLAWFUL COMBINATION IN RESTRAINT OF TRADE; BUT
EVEN IF IT WERE, THE STATE MAY NOT DEPRIVE THE MEMBERS OF THE RIGHTS
SECURED TO THEM BY THEIR COPYRIGHTS, AND A COURT OF EQUITY MAY NOT DENY
THEM THE MEANS OF PROTECTING THOSE RIGHTS. 

THE STATUTES MUST FALL AS A WHOLE, AND THEIR VARIOUS SECTIONS CAN NOT
BE SEPARATED.  CARTER V. CARTER COAL CO., 298 U.S. 238, 316; WILLIAMS
V. STANDARD OIL CO., 278 U.S. 235, 243; RAILROAD RETIREMENT BOARD V.
ALTON R. CO., 295 U.S. 330, 362; MCFARLAND V. AMERICAN SUGAR REFINING
CO., 241 U.S. 79, 87. 

THE PLAINTIFFS CAME INTO COURT WITH "UNCLEAN HANDS," SEEKING AID IN
PERPETUATING THEIR MONOPOLISTIC ACTIVITIES.  INJUNCTIVE RELIEF SHOULD
NOT HAVE BEEN GRANTED. 

THE PROVISIONS OF THE 1937 ACT WERE SEVERABLE, AND THE COURT SHOULD
NOT HAVE STRUCK DOWN THE WHOLE MERELY BECAUSE IT FOUND CERTAIN SECTIONS
VOID. 

THE 1937 STATUTE IS A VALID EXERCISE OF THE POLICE POWER OF THE STATE
IN THE PREVENTION OF MONOPOLY AND RESTRAINT OF TRADE. 

NEITHER THE FEDERAL CONSTITUTION NOR CONGRESS HAS BESTOWED UPON THE
HOLDERS OF COPYRIGHTS ANY RIGHT TO COMBINE FOR PRICE-FIXING PURPOSES. 

WHERE CONGRESS, IN EXERCISING A CONSTITUTIONAL POWER, HAS NOT SHOWN
AN INTENTION TO COVER THE FIELD COMPLETELY, A STATE IS FREE TO ACT. 
CAREY V. SOUTH DAKOTA, 250 U.S. 118, 122; SAVAGE V. JONES, 225 U.S.
501, 533; M., K. & T. RY. CO. V. HABER, 169 U.S. 613, 623. 

A STATE MAY ENACT REASONABLE REGULATIONS AFFECTING COMMERCIAL
DEALINGS IN PATENTS AND COPYRIGHTS WITHIN ITS BORDERS.  ALLEN V. RILEY,
203 U.S. 347; ALBRIGHT V. TEAS, 106 U.S. 613; PATTERSON V. KENTUCKY, 97
U.S. 501; JOHN WOODS & SONS V. CARL, 203 U.S. 358; OZAN LUMBER CO. V.
UNION COUNTY NAT. BANK, 207 U.S. 251; CARBICE CORP. V. AMERICAN PATENTS
CORP., 283 U.S. 27; FOX FILM CORP. V. DOYAL, 286 U.S. 123. 

PATENTS AND COPYRIGHTS ARE NO MORE IMMUNE FROM ANTI-MONOPOLY
LEGISLATION THAN OTHER KINDS OF PROPERTY.  STANDARD SANITARY MFG. CO.
V. UNITED STATES, 226 U.S. 20, 49; STRAUS V. AMERICAN PUBLISHERS ASSN.,
231 U.S. 222, 234, 235; VIRTUE V. CREAMERY PACKAGE MFG. CO., 227 U.S.
8, 32; UNITED SHOE MACHINERY CO. V. UNITED STATES, 258 U.S. 451;
STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163, 174; INTERSTATE
CIRCUIT V. UNITED STATES, 306 U.S. 208; NATIONAL HARROW CO. V. HENCH,
83 F. 36, 38. 

FIXING COMBINATIONS. 

LICENSING THE USE OF MUSICAL COPYRIGHTS TO PROGRAMS ACTUALLY USING THE
LICENSED MUSIC. 

THE PUBLIC ENTERTAINMENT BUSINESS IS AFFECTED WITH A PUBLIC
INTEREST.  MOTION PICTURE PATENTS CO. V. UNIVERSAL FILM CO., 243 U.S.
502, 517. 

THE RIGHT TO CHARGE FOR USE OF A COPYRIGHT OR PATENT DOES NOT EMBRACE
A RIGHT TO COMPENSATION FOR THE USE OF OTHER THAN THE PROTECTED WORK OR
INVENTION.  ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 456. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN BROAD OUTLINE, THESE CASES INVOLVE THE CONSTITUTIONALITY OF
FLORIDA STATUTES REGULATING THE BUSINESS OF PERSONS HOLDING MUSIC
COPYRIGHTS AND DECLARING PRICE-FIXING COMBINATIONS OF "AUTHORS,
COMPOSERS, PUBLISHERS, (AND) OWNERS" OF SUCH COPYRIGHTS TO BE ILLEGAL
AND IN RESTRAINT OF TRADE. 

THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS (ASCAP),
ONE OF THE APPELLANTS IN NO. 611 AND ONE OF THE APPELLEES IN NO. 610,
IS A COMBINATION WHICH CONTROLS THE PERFORMANCE RIGHTS OF A MAJOR PART
OF THE AVAILABLE SUPPLY OF COPYRIGHTED POPULAR MUSIC.  THE OTHER
APPELLANTS IN NO. 611(APPELLEES IN NO. 610) ARE INDIVIDUAL COMPOSERS,
AUTHORS AND PUBLISHERS OF MUSIC CONTROLLED BY ASCAP.  THE APPELLEES IN
NO. 611(APPELLANTS IN NO. 610) ARE THE ATTORNEY GENERAL AND ALL THE
STATE PROSECUTING ATTORNEYS OF FLORIDA, WHO ARE CHARGED WITH THE DUTY
OF ENFORCING CERTAIN PARTS OF THE STATUTES IN QUESTION. 

THESE TWO CASES WERE ORIGINALLY A SINGLE ACTION, IN WHICH ASCAP AND
ITS CO-PARTIES SOUGHT TO ENJOIN THE STATE OFFICIALS FROM ENFORCING A
1937 FLORIDA STATUTE.  FN1  A FEDERAL DISTRICT COURT, COMPOSED OF THREE
JUDGES UNDER SEC. 266 OF THE JUDICIAL CODE, GRANTED A TEMPORARY
INJUNCTION, AND THIS COURT AFFIRMED WITHOUT PASSING UPON THE MERITS OF
THE CONSTITUTIONAL QUESTIONS INVOLVED.  GIBBS V. BUCK, 307 U.S. 66.  A
SUPPLEMENTAL BILL OF COMPLAINT WAS THEN FILED, ASKING THAT THE THREE
JUDGE COURT ENJOIN A 1939 FLORIDA STATUTE RELATING TO THE SAME
SUBJECT.  FN2  ON FINAL HEARING, THE THREE-JUDGE COURT AGAIN ENJOINED
THE STATE OFFICIALS FROM ENFORCING ANY PART OF THE 1937 STATUTE, BUT
GRANTED THE INJUNCTION ONLY AS TO CERTAIN SECTIONS OF THE 1939 ACT.  34
F.SUPP.  510.  NO. 611 IS AN APPEAL BY ASCAP AND ITS CO-COMPLAINANTS
FROM THE REFUSAL TO ENJOIN THE STATE OFFICIALS FROM ENFORCING THE
REMAINDER OF THE 1939 ACT.  NO. 610 IS AN APPEAL BY THE STATE OFFICIALS
FROM THE ORDER GRANTING THE INJUNCTION AS TO THE 1937 ACT AND AS TO
CERTAIN SECTIONS OF THE 1939 ACT.    THE COURT BELOW, WITHOUT PASSING
AT ALL UPON THE VALIDITY OF THIRTEEN OUT OF THE TWENTY-ONE SECTIONS AND
SUBSECTIONS OF THE 1937 ACT, HELD THAT THE REMAINING EIGHT SECTIONS
DEPRIVED COPYRIGHT OWNERS OF RIGHTS GRANTED THEM BY THE FEDERAL
COPYRIGHT LAWS, AND THAT THE STATUTE MUST FALL IN ITS ENTIRETY.  THIS
IT DID UPON THE PREMISE THAT THE SECTIONS HELD INVALID AND THE OTHER
PARTS OF THE BILL WERE INTENDED BY THE FLORIDA LEGISLATURE TO FORM "A
HARMONIOUS WHOLE" AND TO "STAND OR FALL TOGETHER."  THE ULTIMATE
QUESTIONS INVOLVED ARE SUCH THAT WE MUST FIRST DETERMINE WHETHER THIS
RULING WAS CORRECT.  WE HOLD THAT IT WAS NOT, FOR THE FOLLOWING
REASONS. 

THE FLORIDA LEGISLATURE EXPRESSED A PURPOSE DIRECTLY CONTRARY TO THE
DISTRICT COURT'S FINDING.  FOR WHAT THE LEGISLATURE INTENDED IN THIS
REGARD WAS SPELLED OUT IN SEC. 12 OF THE ACT IN THE CLEAR AND EMPHATIC
LANGUAGE OF THE LEGISLATURE ITSELF.  THAT SECTION READS: 

"IF ANY SECTION, SUB-SECTION, SENTENCE, CLAUSE OR ANY PART OF THIS
ACT, IS FOR ANY REASON, HELD OR DECLARED TO BE UNCONSTITUTIONAL,
IMPERATIVE OR VOID, SUCH HOLDING OR INVALIDITY SHALL NOT AFFECT THE
REMAINING PORTIONS OF THIS ACT; AND IT SHALL BE CONSTRUED TO HAVE BEEN
THE LEGISLATIVE INTENT TO PASS THIS ACT WITHOUT SUCH UNCONSTITUTIONAL,
INOPERATIVE OR INVALID PART THEREIN; AND, THE REMAINDER OF THIS ACT,
AFTER THE EXCLUSION OF SUCH PART OR PARTS, SHALL BE HELD AND DEEMED TO
BE VALID AS IF SUCH EXCLUDED PARTS HAD NOT BEEN INCLUDED HEREIN." 

THIS IS A FLAT STATEMENT THAT THE FLORIDA LEGISLATURE INTENDED THAT
THE ACT SHOULD STAND AND BE ENFORCED "AFTER THE EXCLUSION OF SUCH PART
OR PARTS" AS MIGHT BE HELD INVALID.  UNLESS A CONTROLLING DECISION BY
FLORIDA'S COURTS COMPELS A DIFFERENT COURSE, THE FEDERAL COURTS ARE NOT
JUSTIFIED IN SPECULATING THAT THE STATE LEGISLATURE MEANT EXACTLY THE
OPPOSITE OF WHAT IT DECLARED "TO HAVE BEEN THE LEGISLATIVE INTENT." 
BUT THE SUPREME COURT OF FLORIDA RECOGNIZES AND SEEKS TO CARRY OUT THE
LEGISLATIVE INTENT THUS EXPRESSED.  SPEAKING OF A SIMILAR SEVERABILITY
CLAUSE OF ANOTHER STATUTE, THAT COURT SAID:  "THE ACT AS A WHOLE
EVINCES A PURPOSE ON THE PART OF THE LEGISLATURE TO IMPOSE A LICENSE
TAX ON CHAIN STORES AND SECTION FIFTEEN PROVIDES THAT IF ANY SECTION,
PROVISION OR CLAUSE THEREOF, OR IF THE ACT AS APPLIED TO ANY
CIRCUMSTANCE, SHALL BE DECLARED INVALID OR UNCONSTITUTIONAL SUCH
INVALIDITY SHALL NOT AFFECT OTHER PORTIONS OF THE ACT HELD VALID NOR
SHALL IT EXTEND TO OTHER CIRCUMSTANCES NOT HELD TO BE INVALID.  UNDER
THE LIBERAL TERMS OF SECTION FIFTEEN IT MAY BE REASONABLY DISCERNED
THAT THE LEGISLATURE INTENDED THAT THE ACT UNDER REVIEW SHOULD BE HELD
GOOD UNDER ANY EVENTUALITY THAT DID NOT PRODUCE AN UNREASONABLE,
UNCONSTITUTIONAL OR AN ABSURD RESULT.  ...  THE TEST TO DETERMINE
WORKABILITY AFTER SEVERANCE AND WHETHER THE REMAINDER OF THE ACT SHOULD
BE UPHELD RESTS ON THE FACT OF WHETHER OR NOT THE INVALID PORTION IS OF
SUCH IMPORT THAT THE VALID PART WOULD BE INCOMPLETE OR WOULD CAUSE
RESULTS NOT CONTEMPLATED BY THE LEGISLATURE."  LOUIS K. LIGGETT CO. V.
LEE, 109 FLA. 477, 481; 147 SO. 463; 149 SO. 8.  MEASURED BY THIS TEST
THE COURT BELOW WAS IN ERROR, FOR THERE CAN BE NO DOUBT THAT SEC. 1 AND
THE OTHER SECTIONS UPON WHICH THE COURT FAILED TO PASS ARE COMPLETE IN
THEMSELVES; THEY ARE NOT ONLY CONSISTENT WITH THE STATUTE'S PURPOSE BUT
ARE IN REALITY THE VERY HEART OF THE ACT, COMPRISING A DISTINCT
LEGISLATIVE PLAN FOR THE SUPPRESSION OF COMBINATIONS DECLARED TO BE
UNLAWFUL.  FOR, AS POINTED OUT BY THE COURT BELOW, THE SECTIONS THAT
WERE NOT PASSED ON ARE THOSE WHICH OUTLAW COMBINATIONS TO FIX FEES AND
PRESCRIBE THE MEANS WHEREBY THE LEGISLATIVE PROSCRIPTION AGAINST THEM
CAN BE MADE EFFECTIVE.  FN3  SINCE, THEREFORE, THAT PHASE OF THE ACT
WHICH AIMED AT UNLAWFUL COMBINATIONS IS COMPLETE IN ITSELF AND CAPABLE
OF STANDING ALONE, WE MUST CONSIDER IT AS A SEPARABLE PHASE OF THE
STATUTE IN DETERMINING WHETHER THE INJUNCTION WAS PROPERLY ISSUED
AGAINST THE STATE OFFICIALS. 

AS A MATTER OF FACT, AS THE RECORD STANDS, THE RIGHT OF ASCAP AND ITS
CO-COMPLAINANTS TO AN INJUNCTION DEPENDS UPON THIS PHASE OF THE STATUTE
AND IS NOT TO BE DETERMINED AT ALL BY THE VALIDITY OR INVALIDITY OF THE
PARTICULAR SECTIONS WHICH THE COURT BELOW THOUGHT INCONSISTENT WITH THE
FEDERAL CONSTITUTION AND THE COPYRIGHT LAWS PASSED PURSUANT TO IT.  THE
ULTIMATE DETERMINATIVE QUESTION, THEREFORE, IS WHETHER FLORIDA HAS THE
POWER IT EXERCISED TO OUTLAW ACTIVITIES WITHIN THE STATE OF PRICE
FIXING COMBINATIONS COMPOSED OF COPYRIGHT OWNERS.  BUT BEFORE
CONSIDERING THAT QUESTION, IT IS NECESSARY THAT WE EXPLAIN WHY WE DO
NOT DISCUSS, AND WHY AN INJUNCTION COULD NOT REST UPON, ANY OTHER PHASE
OF FLORIDA'S STATUTORY PLAN. 

DEFENDANTS IN THE INJUNCTION PROCEEDINGS ARE THE STATE'S ATTORNEY
GENERAL, WHO IS CHARGED WITH THE RESPONSIBILITY OF ENFORCING THE
STATE'S CRIMINAL LAWS, AND ALL OF THE STATE'S PROSECUTING ATTORNEYS,
WHO ARE SUBJECT TO THE ATTORNEY GENERAL'S AUTHORITY IN THE PERFORMANCE
OF THEIR OFFICIAL DUTIES.  FN4  UNDER THE STATUTES BEFORE US, IT IS
MADE THE DUTY OF THE STATE'S PROSECUTING ATTORNEYS, ACTING UNDER THE
ATTORNEY GENERAL'S DIRECTION, TO INSTITUTE IN THE STATE COURTS CRIMINAL
OR CIVIL PROCEEDINGS.  THE ORIGINAL BILL ALLEGED THAT THE DEFENDANTS
HAD THREATENED TO - AND WOULD, UNLESS RESTRAINED - ENFORCE THE 1937
STATUTE "IN EACH AND ALL OF ITS TERMS AND THE WHOLE THEREOF, AND
PARTICULARLY AGAINST THESE COMPLAINANTS AND OTHERS SIMILARLY SITUATED
...  ," AND THAT AS A CONSEQUENCE COMPLAINANTS WOULD SUFFER IRREPARABLE
INJURY AND DAMAGES.  THE SUPPLEMENTAL BILL CONTAINED SIMILAR
ALLEGATIONS AS TO THE 1939 ACT.  BOTH BILLS WERE DRAWN UPON THE PREMISE
THAT COMPLAINANTS WERE ENTITLED TO AN INJUNCTION RESTRAINING ALL THE
STATE'S PROSECUTING OFFICERS FROM ENFORCING ANY SINGLE PART OF EITHER
OF THE LENGTHY STATUTES, UNDER ANY CIRCUMSTANCES THAT COULD ARISE AND
IN RESPECT TO EACH AND EVERY ONE OF THE MULTITUDINOUS REGULATIONS AND
PROHIBITIONS CONTAINED IN THOSE LAWS.  IN THEIR ANSWERS, THE STATE'S
REPRESENTATIVES SPECIFICALLY DENIED THAT THEY HAD MADE ANY THREATS
WHATEVER TO ENFORCE THE ACTS AGAINST COMPLAINANTS OR ANY ONE ELSE.  IN
THEIR ANSWER TO THE SUPPLEMENTAL BILL, HOWEVER, THEY SAID THAT THEY
WOULD PERFORM ALL DUTIES IMPOSED UPON THEM BY THE 1939 ACT.  THE
FINDINGS OF THE COURT ON THIS SUBJECT WERE GENERAL, AND WERE TO THE
EFFECT THAT "DEFENDANTS HAVE THREATENED TO AND WILL ENFORCE SUCH STATE
STATUTES AGAINST THESE COMPLAINANTS AND OTHERS SIMILARLY SITUATED IN
THE EVENT THAT SUCH COMPLAINANTS AND OTHERS SIMILARLY SITUATED REFUSE
TO COMPLY WITH SAID STATE STATUTES OR DO ANY OF THE ACTS MADE UNLAWFUL
BY SAID STATE STATUTES."  IT IS TO BE NOTED THAT THE COURT DID NOT FIND
ANY THREAT TO ENFORCE ANY SPECIFIC PROVISION OF EITHER LAW.  AND THERE
IS A COMPLETE LACK OF RECORD EVIDENCE OR INFORMATION OF ANY OTHER SORT
TO SHOW ANY THREAT TO PROSECUTE THE COMPLAINANTS OR ANY ONE ELSE IN
CONNECTION WITH ANY SPECIFIC CLAUSE OR PARAGRAPH OF THE NUMEROUS
PROHIBITIONS OF THE ACTS, SUBJECT TO A POSSIBLE EXCEPTION TO BE
DISCUSSED LATER.  THE MOST THAT CAN POSSIBLY BE GATHERED FROM THE
MEAGER RECORD REFERENCES TO THIS VITAL ALLEGATION OF COMPLAINANTS' BILL
IS THAT THOUGH NO SUITS HAD BEEN THREATENED, AND NO CRIMINAL OR CIVIL
PROCEEDINGS INSTITUTED, AND NO PARTICULAR PROCEEDINGS CONTEMPLATED, THE
STATE OFFICIALS STOOD READY TO PERFORM THEIR DUTIES UNDER THEIR OATH OF
OFFICE SHOULD THEY ACQUIRE KNOWLEDGE OF VIOLATIONS.  AND AS TO THE 1937
ACT, THE STATE'S ATTORNEY GENERAL TOOK THE POSITION FROM THE VERY
BEGINNING, BOTH BELOW AND IN THIS COURT, THAT UNDER HIS CONSTRUCTION OF
THE EARLIER ACT NO DUTIES OF ANY KIND WERE IMPOSED UPON HIM AND HIS
SUBORDINATES EXCEPT WITH RELATIONSHIP TO PROHIBITED COMBINATIONS OF THE
TYPE DEFINED IN SEC. 1. 

FEDERAL INJUNCTIONS AGAINST STATE CRIMINAL STATUTES, EITHER IN THEIR
ENTIRETY OR WITH RESPECT TO THEIR SEPARATE AND DISTINCT PROHIBITIONS,
ARE NOT TO BE GRANTED AS A MATTER OF COURSE, EVEN IF SUCH STATUTES ARE
UNCONSTITUTIONAL.  "NO CITIZEN OR MEMBER OF THE COMMUNITY IS IMMUNE
FROM PROSECUTION, IN GOOD FAITH, FOR HIS ALLEGED CRIMINAL ACTS.  THE
IMMINENCE OF SUCH A PROSECUTION EVEN THOUGH ALLEGED TO BE UNAUTHORIZED
AND HENCE UNLAWFUL IS NOT ALONE GROUND FOR RELIEF IN EQUITY WHICH
EXERTS ITS EXTRAORDINARY POWERS ONLY TO PREVENT IRREPARABLE INJURY TO
THE PLAINTIFF WHO SEEKS ITS AID."  BEAL V. MISSOURI PACIFIC RAILROAD
CORP., 312 U.S. 45, 49.  A GENERAL STATEMENT THAT AN OFFICER STANDS
READY TO PERFORM HIS DUTY FALLS FAR SHORT OF SUCH A THREAT AS WOULD
WARRANT THE INTERVENTION OF EQUITY.  AND THIS IS ESPECIALLY TRUE WHERE
THERE IS A COMPLETE ABSENCE OF ANY SHOWING OF A DEFINITE AND EXPRESSED
INTENT TO ENFORCE PARTICULAR CLAUSES OF A BROAD, COMPREHENSIVE AND
MULTI-PROVISIONED STATUTE.  FOR SUCH A GENERAL STATEMENT IS NOT THE
EQUIVALENT OF A THREAT THAT PROSECUTIONS ARE TO BE BEGUN SO
IMMEDIATELY, IN SUCH NUMBERS, AND IN SUCH MANNER AS TO INDICATE THE
VIRTUAL CERTAINTY OF THAT EXTRAORDINARY INJURY WHICH ALONE JUSTIFIES
EQUITABLE SUSPENSION OF PROCEEDINGS IN CRIMINAL COURTS.  THE IMMINENCE
AND IMMEDIACY OF PROPOSED ENFORCEMENT, THE NATURE OF THE THREATS
ACTUALLY MADE, AND THE EXCEPTIONAL AND IRREPARABLE INJURY WHICH
COMPLAINANTS WOULD SUSTAIN IF THOSE THREATS WERE CARRIED OUT ARE AMONG
THE VITAL ALLEGATIONS WHICH MUST BE SHOWN TO EXIST BEFORE RESTRAINT OF
CRIMINAL PROCEEDINGS IS JUSTIFIED.  YET FROM THE LACK OF CONSIDERATION
ACCORDED TO THIS ASPECT OF THE COMPLAINT, BOTH BY COMPLAINANTS IN
PRESENTING THEIR CASE AND BY THE COURT BELOW IN REACHING A DECISION, IT
IS CLEARLY APPARENT THAT THERE WAS A FAILURE TO GIVE PROPER WEIGHT TO
WHAT IS IN OUR EYES AN ESSENTIAL PREREQUISITE TO THE EXERCISE OF THIS
EQUITABLE POWER.  THE CLEAR IMPORT OF THIS RECORD IS THAT THE COURT
BELOW THOUGHT THAT IF A FEDERAL COURT FINDS A MANY-SIDED STATE CRIMINAL
STATUTE UNCONSTITUTIONAL, A MERE STATEMENT BY A PROSECUTING OFFICER
THAT HE INTENDS TO PERFORM HIS DUTY IS SUFFICIENT JUSTIFICATION TO
WARRANT THE FEDERAL COURT IN ENJOINING ALL STATE PROSECUTING OFFICERS
FROM IN ANY WAY ENFORCING THE STATUTE IN QUESTION.  SUCH, HOWEVER, IS
NOT THE RULE.  "THE GENERAL RULE IS THAT EQUITY WILL NOT INTERFERE TO
PREVENT THE ENFORCEMENT OF A CRIMINAL STATUTE EVEN THOUGH
UNCONSTITUTIONAL.  ...  TO JUSTIFY SUCH INTERFERENCE THERE MUST BE
EXCEPTIONAL CIRCUMSTANCES AND A CLEAR SHOWING THAT AN INJUNCTION IS
NECESSARY IN ORDER TO AFFORD ADEQUATE PROTECTION OF CONSTITUTIONAL
RIGHTS.  ...  WE HAVE SAID THAT IT MUST APPEAR THAT 'THE DANGER OF
IRREPARABLE LOSS IS BOTH GREAT AND IMMEDIATE'; OTHERWISE THE ACCUSED
SHOULD FIRST SET UP HIS DEFENSE IN THE STATE COURT, EVEN THOUGH THE
VALIDITY OF A STATUTE IS CHALLENGED.  THERE IS AMPLE OPPORTUNITY FOR
ULTIMATE REVIEW BY THIS COURT OF FEDERAL QUESTIONS."  SPIELMAN MOTOR
SALES CO. V. DODGE, 295 U.S. 89, 95-96. 

SUCH "EXCEPTIONAL CIRCUMSTANCES" AND "GREAT AND IMMEDIATE" DANGER OF
IRREPARABLE LOSS WERE NOT HERE SHOWN.  TESTED BY THIS RULE, THEREFORE,
AND WITH THE POSSIBLE EXCEPTION OF THAT PHASE OF THE STATUTE OUTLAWING
FLORIDA ACTIVITIES BY COMBINATIONS DECLARED UNLAWFUL IN SEC. 1 OF THE
1937 ACT (WHICH WE SHALL LATER CONSIDER SEPARATELY), NEITHER THE
FINDINGS OF THE COURT BELOW NOR THE RECORD ON WHICH THEY WERE BASED
JUSTIFIED AN INJUNCTION AGAINST THE STATE PROSECUTING OFFICERS. 

IN ADDITION TO THE FACT THAT THE SITUATION HERE DOES NOT MEET THE
TESTS LAID DOWN IN THE DECIDED CASES, THE VERY SCOPE OF THESE TWO
STATUTES ILLUSTRATES THE WISDOM OF A POLICY OF JUDICIAL SELF-RESTRAINT
ON THE PART OF FEDERAL COURTS IN SUSPENDING STATE STATUTES IN THEIR
ENTIRETY UPON THE GROUND THAT A COMPLAINANT MIGHT EVENTUALLY BE
PROSECUTED FOR VIOLATING SOME PART OF THEM.  THE FLORIDA SUPREME COURT,
WHICH UNDER OUR DUAL SYSTEM OF GOVERNMENT HAS THE LAST WORD ON THE
CONSTRUCTION AND MEANING OF STATUTES OF THAT STATE, HAS NEVER YET
PASSED UPON THE STATUTES NOW BEFORE US.  IT IS HIGHLY DESIRABLE THAT IT
SHOULD HAVE AN OPPORTUNITY TO DO SO.  FN5  THERE ARE FORTY-TWO SEPARATE
WHILE OTHER SECTIONS ARE UNIMPORTANT FOR PRESENT PURPOSES, THERE ARE
EMBRACED WITHIN THESE TWO ACTS MANY SEPARATE AND DISTINCT REGULATIONS,
COMMANDS AND PROHIBITIONS.  NO ONE CAN FORESEE THE VARYING APPLICATIONS
OF THESE SEPARATE PROVISIONS WHICH CONCEIVABLY MIGHT BE MADE.  A LAW
WHICH IS CONSTITUTIONAL AS APPLIED IN ONE MANNER MAY STILL CONTRAVENE
THE CONSTITUTION AS APPLIED IN ANOTHER.  SINCE ALL CONTINGENCIES OF
ATTEMPTED ENFORCEMENT CANNOT BE ENVISIONED IN ADVANCE OF THOSE
APPLICATIONS, COURTS HAVE IN THE MAIN FOUND IT WISER TO DELAY PASSING
UPON THE CONSTITUTIONALITY OF ALL THE SEPARATE PHASES OF A
COMPREHENSIVE STATUTE UNTIL FACED WITH CASES INVOLVING PARTICULAR
PROVISIONS AS SPECIFICALLY APPLIED TO PERSONS WHO CLAIM TO BE INJURED. 
PASSING UPON THE POSSIBLE SIGNIFICANCE OF THE MANIFOLD PROVISIONS OF A
BROAD STATUTE IN ADVANCE OF EFFORTS TO APPLY THE SEPARATE PROVISIONS IS
ANALOGOUS TO RENDERING AN ADVISORY OPINION UPON A STATUTE OR A
DECLARATORY JUDGMENT UPON A HYPOTHETICAL CASE.  IT IS OF COURSE
CONCEIVABLE THAT A STATUTE MIGHT BE FLAGRANTLY AND PATENTLY VIOLATIVE
OF EXPRESS CONSTITUTIONAL PROHIBITIONS IN EVERY CLAUSE, SENTENCE AND
PARAGRAPH, AND IN WHATEVER MANNER AND AGAINST WHOMEVER AN EFFORT MIGHT
BE MADE TO APPLY IT.  IT IS SUFFICIENT TO SAY THAT THE STATUTES BEFORE
US ARE NOT OF THIS TYPE.  CASES UNDER THE SEPARATE SECTIONS AND
PARAGRAPHS OF THE ACTS CAN BE TRIED AS THEY ARISE - PREFERABLY IN THE
STATE COURTS.  ANY FEDERAL QUESTIONS THAT ARE PROPERLY PRESENTED CAN
THEN BE BROUGHT HERE.  BUT AT THIS TIME THE RECORD DOES NOT JUSTIFY OUR
PASSING UPON ANY PART OF THE STATUTE EXCEPT, POSSIBLY, THAT PHASE WHICH
PROHIBITS ACTIVITIES IN FLORIDA BY COMBINATIONS DECLARED UNLAWFUL. 
WHILE THE PROOF AND FINDINGS IN THIS REGARD ARE NOT AS CLEAR AND
SPECIFIC AS THEY MIGHT AND SHOULD BE, WE NEVERTHELESS, UNDER THE
CIRCUMSTANCES OF THIS CASE, PROCEED TO THIS ULTIMATE AND DECISIVE
QUESTION.    IN THE CONSIDERATION OF THIS CASE, MUCH CONFUSION HAS BEEN
BROUGHT ABOUT BY DISCUSSING THE STATUTES AS THOUGH THE POWER OF A STATE
TO PROHIBIT OR REGULATE COMBINATIONS IN RESTRAINT OF TRADE WAS
IDENTICAL WITH AND WENT NO FURTHER THAN THE POWER EXERCISED BY CONGRESS
IN THE SHERMAN ACT.  SUCH AN ARGUMENT RESTS UPON A MISTAKEN PREMISE. 
FN6  NOR IS IT WITHIN OUR PROVINCE, IN DETERMINING WHETHER OR NOT THIS
PHASE OF THE STATE STATUTE COMES INTO COLLISION WITH THE FEDERAL
CONSTITUTION OR LAWS PASSED PURSUANT THERETO, TO SCRUTINIZE THE ACT IN
ORDER TO DETERMINE WHETHER WE BELIEVE IT TO BE FAIR OR UNFAIR,
CONDUCIVE TO GOOD OR EVIL FOR THE PEOPLE OF FLORIDA, OR CAPABLE OF
PROTECTING OR DEFEATING THE PUBLIC INTEREST OF THE STATE.  FN7  THESE
QUESTIONS WERE FOR THE LEGISLATURE OF FLORIDA AND IT HAS DECIDED THEM. 
AND, UNLESS CONSTITUTIONALLY VALID FEDERAL LEGISLATION HAS GRANTED TO
INDIVIDUAL COPYRIGHT OWNERS THE RIGHT TO COMBINE, THE STATE'S POWER
VALIDLY TO PROHIBIT THE PROSCRIBED COMBINATIONS CANNOT BE HELD NON
EXISTENT MERELY BECAUSE SUCH INDIVIDUALS CAN PRESERVE THEIR PROPERTY
RIGHTS BETTER IN COMBINATION THAN THEY CAN AS INDIVIDUALS.  WE FIND
NOTHING IN THE COPYRIGHT LAWS WHICH PURPORTS TO GRANT TO COPYRIGHT
OWNERS THE PRIVILEGE OF COMBINING IN VIOLATION OF OTHERWISE VALID STATE
OR FEDERAL LAWS.  WE HAVE, IN FACT, DETERMINED TO THE CONTRARY WITH
RELATION TO OTHER COPYRIGHT PRIVILEGES.  FN8  BUT COMPLAINANTS URGE
THAT THERE IS A DISTINCTION BETWEEN OUR PREVIOUS HOLDINGS AND THE
QUESTION HERE.  THIS CONTENTION IS BASED ON THE IDEA THAT CONGRESS HAS
GRANTED THE COPYRIGHT PRIVILEGE WITH RELATION TO PUBLIC PERFORMANCES OF
MUSIC, AND THAT WITH REFERENCE TO THE PROTECTION OF THIS PARTICULAR
PRIVILEGE, COMBINATION IS ESSENTIAL.  WE ARE THEREFORE ASKED TO
CONCLUDE FROM THE ASSERTED NECESSITIES OF THEIR SITUATION THAT CONGRESS
INTENDED TO GRANT THIS EXTRAORDINARY PRIVILEGE OF COMBINATION.  THIS WE
CANNOT DO.  WE ARE POINTED TO NOTHING EITHER IN THE LANGUAGE OF THE
COPYRIGHT LAWS OR IN THE HISTORY OF THEIR ENACTMENT TO INDICATE ANY
CONGRESSIONAL PURPOSE TO DEPRIVE THE STATES, EITHER IN WHOLE OR IN
PART, OF THEIR LONG-RECOGNIZED POWER TO REGULATE COMBINATIONS IN
RESTRAINT OF TRADE.  COMPARE WATERS-PIERCE OIL CO. V. TEXAS (NO. 1),
212 U.S. 86, 107. 

UNDER THE FINDINGS OF FACT OF THE COURT BELOW, ASCAP COMES SQUARELY
WITHIN THE DEFINITION OF THE COMBINATIONS PROHIBITED BY SEC. 1 OF THE
1937 ACT.  SECTION 1 DEFINES AS AN UNLAWFUL COMBINATION AN AGGREGATION
OF AUTHORS, COMPOSERS, PUBLISHERS, AND OWNERS OF COPYRIGHTED VOCAL OR
INSTRUMENTAL MUSICAL COMPOSITIONS WHO FORM ANY SOCIETY, ASSOCIATION, OR
THE LIKE, AND THE MEMBERS OF WHICH CONSTITUTE A SUBSTANTIAL NUMBER OF
THE PERSONS, FIRMS OR CORPORATIONS WITHIN THE UNITED STATES WHO OWN OR
CONTROL SUCH MUSICAL COMPOSITIONS, AND "WHEN ONE OF THE OBJECTS OF SUCH
COMBINATION IS THE DETERMINATION AND FIXATION OF LICENSE FEES OR OTHER
EXACTIONS REQUIRED BY SUCH COMBINATION FOR ITSELF OR ITS MEMBERS OR
OTHER INTERESTED PARTIES."  SECTION 8 OF THE 1937 ACT MAKES IT AN
OFFENSE FOR SUCH COMBINATIONS "TO ACT WITHIN THIS STATE IN VIOLATION OF
THE TERMS OF THIS ACT."  THE COURT BELOW FOUND THAT THERE WERE 1425
COMPOSERS AND AUTHORS WHO WERE MEMBERS OF ASCAP; THAT THE PRINCIPAL
MUSIC PUBLISHERS OF THE COUNTRY ARE MEMBERS; THAT THE SOCIETY CONTROLS
THE RIGHT OF PERFORMANCE OF 45,000 MEMBERS OF SIMILAR SOCIETIES IN
FOREIGN COUNTRIES; AND THAT THE BOARD OF DIRECTORS OF ASCAP HAVE
"ABSOLUTE CONTROL OVER THE FIXING OF PRICES TO BE CHARGED FOR
PERFORMANCE LICENSES  ...  "  SINCE UNDER THE RECORD AND FINDINGS HERE
ASCAP IS AN ASSOCIATION WITHIN THE MEANING OF SEC. 1 OF THE 1937 ACT,
WE ARE NOT CALLED UPON AT ITS INSTANCE TO PASS UPON THE VALIDITY OF
OTHER PROVISIONS CONTAINED IN THE NUMEROUS CLAUSES, SENTENCES, AND
PHASES OF THE 1937 OR 1939 ACT WHICH MIGHT COVER OTHER COMBINATIONS NOT
NOW BEFORE US.  IT IS ENOUGH FOR US TO SAY IN THIS CASE THAT THE PHASE
OF FLORIDA'S LAW PROHIBITING ACTIVITIES OF THOSE UNLAWFUL COMBINATIONS
DESCRIBED IN SEC. 1 OF THE 1937 ACT DOES NOT CONTRAVENE THE COPYRIGHT
LAWS OR THE FEDERAL CONSTITUTION; THAT PARTICULAR ATTACKS UPON OTHER
SPECIFIED PROVISIONS OF THE STATUTES INVOLVED ARE NOT APPROPRIATE FOR
DETERMINATION IN THIS PROCEEDING; THAT THE COURT BELOW ERRED IN
GRANTING THE INJUNCTION; AND THAT THE BILL SHOULD HAVE BEEN DISMISSED. 
ALL OTHER QUESTIONS REMAIN OPEN FOR CONSIDERATION AND DISPOSITION IN
APPROPRIATE PROCEEDINGS.  FOR THE REASONS GIVEN, THE JUDGMENT BELOW IN
NO. 610 IS REVERSED AND THE CAUSE IS REMANDED TO THE LOWER COURT WITH
INSTRUCTIONS TO DISMISS THE BILL.  THE JUDGMENT IN NO. 611 IS
AFFIRMED.  NO. 610 REVERSED.  NO. 611 AFFIRMED. 

FN1  FLA. LAWS 1937, CH. 17807. 

FN2  FLA. LAWS 1939, CH. 19653. 

FN3  THE COURT SAID: 

"THERE REMAIN:  SECTIONS 1, 2-C AND 3, IN EFFECT DECLARING ASCAP AND
SIMILAR SOCIETIES ILLEGAL ASSOCIATIONS, OUTLAWING ITS ARRANGEMENTS FOR
LICENSE FEES, AND PROSCRIBING AND MAKING AN OFFENSE, ATTEMPTS TO
COLLECT THEM; SECTION 7-B MAKING PERSONS, ACTING FOR SUCH A
COMBINATION, AGENTS FOR IT AND LIABLE TO THE PENALTIES OF THE ACT;
JURISDICTION TO ENFORCE THE ACT, CIVILLY AND CRIMINALLY; AND SECTIONS
10-A, 10-B, 11-A AND 11-B, PRESCRIBING PROCEDURE UNDER IT."  34
F.SUPP.  516.  WITH THE POSSIBLE EXCEPTION OF SEC. 3, NOWHERE IN THE
COURSE OF THE OPINION WERE ANY OF THESE SECTIONS HELD INVALID. 

FN4  THE SECRETARY OF STATE AND THE STATE COMPTROLLER WERE ADDED AS
PARTIES DEFENDANT BY A "FURTHER SUPPLEMENTAL BILL OF COMPLAINT" FILED
OCTOBER 19, 1939.  THE GROUND GIVEN BY THE COMPLAINANTS FOR ADDING
PARTIES WAS THAT CERTAIN DUTIES WERE IMPOSED ON THESE OFFICIALS BY THE
1939 ACT.  THE DUTIES, HOWEVER, REQUIRED ONLY THAT CERTAIN FEES BE
COLLECTED, AND NOT THAT ACTIONS BE BROUGHT TO ENFORCE THE LAW. 

IN THE COURSE OF THIS LITIGATION, FLORIDA HAS HAD THREE ATTORNEYS
GENERAL.  THE PRESENT ATTORNEY GENERAL TOOK OFFICE ON JANUARY 7, 1941,
AND ALL THE PARTIES HAVE JOINED IN A MOTION TO SUBSTITUTE HIM AS A
DEFENDANT IN PLACE OF HIS PREDECESSOR IN OFFICE.  THERE IS NO OBJECTION
TO THE SUBSTITUTION, AND THE MOTION IS GRANTED. 

FN5  CF., E.G., ARKANSAS CORPORATION COMMISSION V. THOMPSON, ANTE,
132, 144; RAILROAD COMMISSION OF TEXAS V. PULLMAN CO., 312 U.S. 496,
499; RAILROAD COMMISSION OF TEXAS V. ROWAN & NICHOLS OIL CO., 311 U.S.
570, 575; THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478, 483; EX
PARTE BALDWIN, 291 U.S. 610, 619; GILCHRIST V. INTERBOROUGH RAPID
TRANSIT CO., 279 U.S. 159, 207. 

FN6  WE HAVE BEEN REFERRED TO A RECENT CONSENT DECREE AGAINST ASCAP
IN THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
THE THEORY BEING THAT THE DECREE MIGHT HAVE SOME BEARING UPON THE
STATE'S POWER TO PASS THE LEGISLATION NOW UNDER ATTACK.  BUT IT HAS
NOT.  IN MATTERS RELATING TO PURELY INTRASTATE TRANSACTIONS, THE STATE
MIGHT PASS VALID REGULATIONS TO PROHIBIT RESTRAINT OF TRADE EVEN IF THE
FEDERAL GOVERNMENT HAD NO LAW WHATEVER WITH REFERENCE TO SIMILAR
MATTERS INVOLVING INTERSTATE TRANSACTIONS. 

FN7 THE COURT BELOW CONCLUDED AS A MATTER OF LAW THAT "ENACTMENT OF
THE SAID STATUTE WAS NOT NECESSARY TO PROTECT, NOR DOES IT SERVE THE
PUBLIC INTEREST OF THE STATE OF FLORIDA.  ...  " 

INTERSTATE CIRCUIT, INC. V. UNITED STATES, 306 U.S. 208.  CF. FASHION
ORIGINATORS' GUILD OF AMERICA V. FEDERAL TRADE COMMISSION, 312 U.S.
457; ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






MARSH V. BUCK, 313 U.S. 406 


NO. 312.  ARGUED APRIL 29, 1941.  - DECIDED MAY 26, 1941.  - 33 F.SUPP. 
377, REVERSED. 


DECIDED UPON THE AUTHORITY OF WATSON V. BUCK, ANTE, P. 387.  P. 407. 

MARSH, SECRETARY OF STATE OF NEBRASKA, ET AL. V. BUCK ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEBRASKA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH
ENJOINED ENFORCEMENT OF THE NEBRASKA ANTI-MONOPOLY ACT OF MAY 17, 1937,
AGAINST THE PLAINTIFFSAPPELLEES, WHO WERE MEMBERS OF THE AMERICAN
SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, AN UNINCORPORATED
ASSOCIATION RECOGNIZED BY THE LAWS OF THE STATE OF NEW YORK, CONSISTING
OF APPROXIMATELY 1,425 COMPOSERS AND AUTHORS AND 131 PUBLISHERS OF
MUSIC. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

MOST OF THE QUESTIONS PRESENTED BY THIS CASE ARE THE SAME AS THOSE
THAT WERE RAISED IN WATSON V. BUCK, ANTE, P. 387.  HERE, AS THERE, AT
THE REQUEST OF ASCAP AND ITS CO-COMPLAINANTS A FEDERAL DISTRICT COURT
COMPOSED OF THREE JUDGES ENJOINED VARIOUS STATE OFFICIALS FROM
ENFORCING A STATE STATUTE  FN1  AIMED PRIMARILY AT PRICE-FIXING
COMBINATIONS OPERATING IN THE FIELD OF PUBLIC PERFORMANCE OF COPYRIGHT
MUSIC.  FN2  HERE, AS THERE, THE COMPLAINANTS ALLEGED, AND THE
DEFENDANTS DENIED, THAT ENFORCEMENT OF THE ACT HAD BEEN THREATENED. 
HERE, AS THERE, THE COURT BELOW FOUND THAT THREATS HAD BEEN MADE, THAT
SOME OF THE SECTIONS OF THE ACT WERE INVALID, THAT THE INVALIDITY OF
THOSE SECTIONS PERMEATED THE WHOLE, AND THAT THE STATE OFFICIALS SHOULD
BE ENJOINED FROM ENFORCING ANY OF THE NUMEROUS PROVISIONS OF THE ACT. 
BUT, AS IN THE FLORIDA CASE, THE COURT BELOW PROCEEDED ON A MISTAKEN
PREMISE AS TO THE ROLE A FEDERAL EQUITY COURT SHOULD PLAY IN ENJOINING
STATE CRIMINAL STATUTES.  HERE, THERE WAS NO MORE OF A SHOWING OF
EXCEPTIONAL CIRCUMSTANCES, SPECIFIC THREATS, AND IRREPARABLE INJURY
THAN IN THE FLORIDA CASE.  IN HIS BRIEF IN THIS COURT, THE ATTORNEY
GENERAL OF NEBRASKA STATED THAT "APPELLANTS, AS LAW ENFORCEMENT
OFFICERS, SINCERELY HOPE THAT NO ACTION UNDER THIS LAW WILL BE
REQUIRED.  NONE WAS THREATENED BEFORE NOR SINCE THE SUIT WAS STARTED." 
WITH ONE POSSIBLE EXCEPTION, THE RECORD BEARS OUT THE STATEMENT OF THE
ATTORNEY GENERAL; THERE WAS NO EVIDENCE WHATEVER THAT ANY THREATS HAD
BEEN MADE, BUT IN HIS ANSWER THE ATTORNEY GENERAL STATED THAT HE WOULD
"ENFORCE THE ACT AGAINST THE COMPLAINANT SOCIETY  ... (IF) THE
COMPLAINANT SOCIETY WOULD OPERATE IN THE STATE OF NEBRASKA IN VIOLATION
OF THE TERMS OF THE STATUTE BY CONNIVING AND CONSPIRING TO FIX AND
DETERMINE PRICES FOR PUBLIC PERFORMANCE OF COPYRIGHTED MUSICAL
COMPOSITIONS  ...  "  AS WE HAVE JUST HELD IN WATSON V. BUCK, IT WAS
ERROR TO ISSUE AN INJUNCTION UNDER THESE CIRCUMSTANCES. 

IN OTHER MATERIAL RESPECTS ALSO, THIS CASE IS LIKE THE FLORIDA CASE. 
THE COURT BELOW FAILED TO PASS ON WHAT WE CONSIDER THE HEART OF THE
STATUTE BECAUSE OF WHAT IT REGARDED AS THE PERVADING VICE OF THE
INVALID SECTIONS.  BUT SEC. 12 OF THE NEBRASKA STATUTE IS SIMILAR TO
SEC. 12 OF THE FLORIDA STATUTE AND PROVIDES THAT "IF ANY SECTION,
SUBDIVISION, SENTENCE OR CLAUSE IN THIS ACT SHALL, FOR ANY REASON, BE
HELD VOID OR NON-ENFORCEABLE, SUCH DECISION SHALL IN NO WAY AFFECT THE
VALIDITY OR ENFORCEABILITY OF ANY OTHER PART OR PARTS OF THIS ACT." 
THE LEGISLATIVE WILL IS RESPECTED BY THE SUPREME COURT OF NEBRASKA,
FN3  AND THE COURT BELOW SHOULD HAVE FOLLOWED STATE LAW IN THIS
REGARD.  THAT PART OF THE STATUTE ON WHICH THE COURT DID NOT PASS - AND
THE PART WHICH THE ATTORNEY GENERAL SAID HE STOOD WILLING TO ENFORCE IF
VIOLATED - SET UP A COMPLETE SCHEME FOR THE REGULATION OF COMBINATIONS
CONTROLLING PERFORMING RIGHTS IN COPYRIGHT MUSIC.  ON THE AUTHORITY OF
WATSON V. BUCK, THE DECISION BELOW IS REVERSED AND THE CAUSE IS
REMANDED WITH INSTRUCTIONS TO DISMISS THE BILL.  REVERSED. 

FN1  NEB. LAWS 1937, CH. 138. 

FN2  33 F.SUPP.  377. 

FN3  SEE PETERSEN V. BEAL, 121 NEB. 348, 353; 237 N.W. 146, QUOTING
AND APPROVING THE FOLLOWING EXCERPT FROM SCOTT V. FLOWERS, 61 NEB. 620,
622-623; 85 N.W. 857:  "THE GENERAL RULE UPON THE SUBJECT IS THAT,
WHERE THERE IS A CONFLICT BETWEEN AN ACT OF THE LEGISLATURE AND THE
CONSTITUTION OF THE STATE, THE STATUTE MUST YIELD TO THE EXTENT OF THE
REPUGNANCY, BUT NO FURTHER.  IF, AFTER STRIKING OUT THE
UNCONSTITUTIONAL PART OF A STATUTE, THE RESIDUE IS INTELLIGIBLE,
COMPLETE, AND CAPABLE OF EXECUTION, IT WILL BE UPHELD AND ENFORCED,
EXCEPT, OF COURSE, IN CASES WHERE IT IS APPARENT THAT THE REJECTED PART
WAS AN INDUCEMENT TO THE ADOPTION OF THE REMAINDER.  IN OTHER WORDS,
THE LEGISLATIVE WILL IS, WITHIN CONSTITUTIONAL LIMITS, THE LAW OF THE
LAND, AND WHEN EXPRESSED IN ACCORDANCE WITH ESTABLISHED PROCEDURE, MUST
BE ASCERTAINED BY COURTS AND MADE EFFECTIVE." 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






UNITED STATES V. MORGAN, 313 U.S. 409 


NO. 640.  ARGUED APRIL 10, 1941.  - DECIDED MAY 26, 1941.  - 32 F.SUPP. 
546, REVERSED. 


1.  THE FUNCTION OF THE SECRETARY OF AGRICULTURE, WHEN DETERMINING
UNDER THE PACKERS AND STOCKYARDS ACT REASONABLE RATES FOR SERVICES
RENDERED BY MARKET AGENCIES DURING A PERIOD OF YEARS PAST, IS NOT
MERELY TO COMPARE THEIR ACTUAL EXPENDITURES AND INCOMES, BUT INVOLVES
CONSIDERATION OF THE EXTENT TO WHICH THE SERVICES PROPERLY SHOULD BE
CHARGED TO THE PUBLIC.  P. 414. 

2.  AS A BASIS FOR DISTRIBUTION OF FUNDS PAID INTO THE REGISTRY OF
THE DISTRICT COURT BY MARKET AGENCIES PURSUANT TO AN ORDER GRANTING AN
INTERLOCUTORY INJUNCTION IN THEIR SUIT TO ENJOIN THE ENFORCEMENT OF AN
ORDER OF THE SECRETARY OF AGRICULTURE PURPORTING TO FIX THEIR RATES,
WHICH ULTIMATELY WAS ADJUDGED VOID FOR DEFECTS OF PROCEDURE, THE
SECRETARY OF AGRICULTURE REOPENED THE PROCEEDING AND FOUND AND FIXED
FOR THE IMPOUNDING PERIOD, RATES WHICH WERE ON THE LEVEL OF THOSE FIXED
BY THE ORIGINAL ORDER.  HELD: 

(1)  A CONTENTION THAT THE SECRETARY BASED HIS JUDGMENT ON CONDITIONS
EXISTING AT THE DATE OF THE ORIGINAL ORDER WITHOUT CONSIDERING
SUBSEQUENT CHANGES, IS DISPROVED BY THE RECORD.  P. 416. 

(2)  A CONTENTION THAT THE SECRETARY'S FINDINGS ARE WITHOUT SUPPORT
IN THE EVIDENCE, IS WITHOUT MERIT.  P. 417. 

(3)  QUITE DIFFERENT CONSIDERATIONS MAY PROPERLY HAVE INFLUENCED THE
SECRETARY IN FIXING RATES FOR THE IMPOUNDING PERIOD FROM THOSE BY WHICH
HE DETERMINED A SCHEDULE OF RATES FOR THE FUTURE.  P. 419. 

(4)  A MOTION THAT THE SECRETARY BE DISQUALIFIED FOR BIAS WAS
PROPERLY OVERRULED BY HIM.  P. 420. 

THE CHARGE OF BIAS GREW OUT OF HIS CRITICISM OF THE DECISION OF THIS
COURT DECLARING HIS ORIGINAL ORDER VOID (304 U.S. 1), IN A LETTER WHICH
HE WROTE TO A NEWSPAPER WHILE IN THE MISTAKEN BELIEF THAT THE DECISION
MEANT RETURN OF THE IMPOUNDED FUNDS TO THE MARKET AGENCIES.  IN
OVERRULING THE MOTION, HE EXPLAINED THE MISTAKE, DENIED BIAS AND ADDED
THAT, AS A MATTER OF EXPEDIENCY, HE MIGHT HAVE DISQUALIFIED HIMSELF BUT
FOR THE FACT THAT, WHILE THE MARKET AGENCIES WERE PRESSING HIS
DISQUALIFICATION, THEY WERE SIMULTANEOUSLY URGING THAT NONE OTHER THAN
THE SECRETARY HAD LEGAL AUTHORITY TO MAKE THE RATE ORDER. 

(5)  THE FACT THAT THE SECRETARY NOT MERELY HELD BUT EXPRESSED STRONG
VIEWS ON MATTERS BELIEVED BY HIM TO HAVE BEEN IN ISSUE IN THE EARLIER
STAGE OF THE CASE, DID NOT UNFIT HIM FOR EXERCISING HIS DUTY IN THE
SUBSEQUENT PROCEEDINGS.  P. 421. 

3.  IN A SUIT BY MARKET AGENCIES ATTACKING RATES FIXED BY THE
SECRETARY OF AGRICULTURE, IT WAS IMPROPER FOR THE DISTRICT COURT, OVER
THE GOVERNMENT'S OBJECTION, TO AUTHORIZE THE PLAINTIFFS TO TAKE THE
SECRETARY'S DEPOSITION, AND IMPROPER, UPON HIS APPEARING AT THE TRIAL,
TO EXAMINE HIM REGARDING THE PROCESS BY WHICH HE REACHED HIS
CONCLUSIONS, INCLUDING THE MANNER AND EXTENT OF HIS STUDY OF THE RECORD
AND HIS CONSULTATION WITH SUBORDINATES.  P. 422. 

4.  ADMINISTRATIVE AND JUDICIAL PROCESSES ARE COLLABORATIVE
INSTRUMENTALITIES OF JUSTICE, AND THE APPROPRIATE INDEPENDENCE OF EACH
SHOULD BE RESPECTED BY THE OTHER.  P. 422. 

UNITED STATES ET AL. V. MORGAN, ADMINISTRATRIX, ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MISSOURI. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES, WHICH
ADJUDGED INVALID AN ORDER OF THE SECRETARY OF AGRICULTURE, FIXING
RATES, AND DIRECTED THAT FUNDS IN THE REGISTRY THAT HAD BEEN PAID IN BY
THE PLAINTIFFS BE RETURNED TO THEM.  THE HISTORY OF THIS PROTRACTED
LITIGATION IS SUMMED UP IN THE FIRST PARAGRAPH OF THE OPINION. 

THE COURT BELOW COMPELLED THE SECRETARY TO TESTIFY AS TO THE MANNER
IN WHICH HE REACHED HIS DECISION, ALTHOUGH THE RECORD WAS IN ALL
RESPECTS REGULAR ON ITS FACE.  THIS WAS ERROR, AND FATAL TO THE
DECISION, WHICH RESTS IN SUBSTANTIAL PART UPON THE TESTIMONY OF THE
SECRETARY. 

THE FINDING THAT THE SECRETARY WAS NOT AN "IMPARTIAL TRIER OF THE
FACTS" IS AN ACCUSATION SUPPORTED ONLY BY A LETTER PUBLISHED BY THE
SECRETARY, AFTER HIS ORDER HAD BEEN HELD INVALID BECAUSE OF PROCEDURAL
IRREGULARITY, WHICH STATED THAT THE IMPOUNDED FUNDS "RIGHTFULLY" BELONG
TO THE FARMERS.  (1) THIS STATEMENT SIMPLY REFLECTED THE FACT THAT THE
SECRETARY'S ORDER HAD BEEN UPHELD BY THE ONLY COURT WHICH HAD
CONSIDERED ITS MERITS, AND CANNOT REASONABLY BE CONSTRUED TO INDICATE
THAT HIS MIND WOULD BE CLOSED TO THE FORCE OF NEW EVIDENCE AND NEW
ARGUMENTS. 

(2)  BUT EVEN IF THE FACTUAL BASIS OF THE DECISION BELOW WERE
CORRECT, THERE YET WOULD BE NO DISQUALIFICATION.  IT MAY BE ASSUMED
THAT THE ACT HOLDS THE ADMINISTRATIVE TRIBUNAL TO THE SAME CRITERIA OF
IMPARTIALITY AS OBTAINS FOR THE JUDICIARY.  BUT SEC. 21 OF THE JUDICIAL
CODE DISQUALIFIES ONLY FOR A PERSONAL BIAS, WITH WHICH THE SECRETARY
WAS NOT CHARGED.  AND, AS IN THE CASE OF A COURT, IF THE SECRETARY
CHOSE TO SIT THERE CAN BE NO DISQUALIFICATION. 

THE SECRETARY PROPERLY REOPENED THE PROCEEDINGS BY SERVICE OF THE
1933 FINDINGS AND ORDER.  AS HE EXPLAINED, THE SUMMARIZATION OF THE
VOLUMINOUS EVIDENCE THERE CONTAINED WOULD "PROVE VERY HELPFUL AS A
WORKING BASIS FOR THIS HEARING," AND WOULD BE REVISED ACCORDING TO ANY
ADDITIONAL EVIDENCE WHICH THE PARTIES MIGHT INTRODUCE. 

THE COURT BELOW FOUND FURTHER EVIDENCE OF AN IMPROPER PROCEEDING IN
THE FAILURE OF THE GOVERNMENT TO INTRODUCE NEW EVIDENCE.  THE RULING IS
UNWARRANTED.  IN THE CIRCUMSTANCES OF THIS CASE THE EVIDENCE SUPPORTING
THE 1933 ORDER WAS SUFFICIENT TO SUPPORT THE 1939 ORDER AND, EVEN IF IT
WERE NOT, THE BURDEN OF GOING FORWARD COULD BE ASSUMED TO REST UPON THE
APPELLEES.  THE SECRETARY PROPERLY ASSUMED THAT THE EXISTING RECORD
MIGHT BE TAKEN AS SATISFACTORY EXCEPT SO FAR AS THE PARTIES WISHED TO
SUPPLEMENT IT. 

IF THE OLD RECORD, SUPPLEMENTED BY THE NEW EVIDENCE INTRODUCED BY THE
APPELLEES, IS INSUFFICIENT TO SUPPORT THE 1939 ORDER OF THE SECRETARY,
THIS OBJECTION GOES TO THE MERITS AND DOES NOT ESTABLISH PROCEDURAL
IRREGULARITY.  UNDER THE PACKERS AND STOCKYARDS ACT, IN CONTRAST TO
PUBLIC UTILITY REGULATION, THE REASONABLE RATES HAVE NO NECESSARY
RELATIONSHIP TO ACTUAL COSTS. 

THE NECESSITY OF TAKING EVIDENCE AS TO CHANGED CONDITIONS WAS SIMPLY
A QUESTION FOR ADMINISTRATIVE DETERMINATION. 

THE FINDING OF THE COURT BELOW THAT THE SECRETARY DID NOT PERSONALLY
WEIGH OR APPRAISE THE EVIDENCE IS WHOLLY WITHOUT SUPPORT IN THE
EVIDENCE. 

THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE ORDER OF THE
SECRETARY. 

THE CHANGES DURING THE IMPOUNDING PERIOD DID NOT MAKE THE RATES
INADEQUATE. 

AN ADMINISTRATIVE TRIBUNAL IS REQUIRED TO GRANT A FULL, FAIR AND
IMPARTIAL HEARING BEFORE AN IMPARTIAL TRIER OF THE FACTS. 

THE ORDER OF JUNE 20, 1939, IS INVALID BECAUSE THE REOPENED
PROCEEDINGS WERE CONDUCTED BY THE SECRETARY, AND THE ORDER RESULTING
THEREFROM WAS BASED UPON AN ERRONEOUS CONCEPTION OF THE NATURE OF THE
PROCEEDINGS BEFORE HIM, OF THE STATUS OF THE INVALIDATED FINDINGS OF
JUNE 14, 1933, OF THE PRIOR OPINIONS OF THIS COURT IN THIS CASE, AND
UPON A MISCONCEPTION OF THE POWERS AND DUTIES OF THE SECRETARY IN
RESPECT OF THE REOPENED PROCEEDINGS. 

THE ORDER IS INVALID BECAUSE THE PURPOSE OF THE SECRETARY THROUGHOUT
THE REOPENED PROCEEDINGS WAS TO PROCURE THE VALIDATION NUNC PRO TUNC OF
THE INVALIDATED ORDER OF JUNE 14, 1933. 

THE DISTRICT COURT DID NOT ERR IN PERMITTING THE SECRETARY TO BE
CALLED AS A WITNESS.  RESPONDENTS WERE DENIED A HEARING BEFORE THE ONLY
TRIBUNAL AUTHORIZED TO HEAR THE MATTER, TO-WIT, THE SECRETARY HIMSELF. 

THE ORDER OF JUNE 20, 1939 IS INVALID BECAUSE IT WAS ARRIVED AT
WITHOUT CONSIDERING RELEVANT AND MATERIAL FACTS AND CIRCUMSTANCES. 

THE FINDING OF THE COURT BELOW, THAT THE FINDINGS AND ORDER OF JUNE
20, 1939 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, SHOULD NOT BE
DISTURBED, (1) BECAUSE IT IS NOT CLEARLY ERRONEOUS, AND (2) BECAUSE IT
IS FULLY SUPPORTED BY THE RECORD. 

IN FIXING RATES WHICH ARE NON-COMPENSATORY TO ANY REPRESENTATIVE FIRM
OR GROUP OF REPRESENTATIVE FIRMS, HOWEVER EFFICIENT, THE ORDER HAS NOT
ONLY VIOLATED THE STANDARDS OF THE STATUTE BUT HAS VIOLATED STANDARDS
AS EXPRESSED IN THE ORDER ITSELF. 

THE ORDER OF JUNE 20, 1939 IS INVALID BECAUSE THE FINDINGS AND ORDER
CONTAIN NO LEGALLY SUFFICIENT FINDING THAT THE EXISTING RATES WERE
UNREASONABLY HIGH. 

THE COURT BELOW PROPERLY DISCHARGED ITS "DUTY TO USE BROAD
DISCRETION" TO ATTAIN A JUST AND LAWFUL RESULT, IN HOLDING THAT, IN
EQUITY AND GOOD CONSCIENCE, THE IMPOUNDED FUNDS SHOULD BE DISTRIBUTED
TO THE MARKET AGENCIES. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE ORIGINATED ELEVEN YEARS AGO.  AS A RESULT OF PROCEEDINGS
BEGUN IN APRIL, 1930 UNDER THE PACKERS AND STOCKYARDS ACT, 42 STAT.
159, 7 U.S.C. SEC. 181 ET SEQ., THE SECRETARY OF AGRICULTURE IN JUNE,
1933, ISSUED AN ORDER SETTING MAXIMUM RATES TO BE CHARGED BY MARKET
AGENCIES FOR THEIR SERVICES AT THE KANSAS CITY STOCKYARDS.  THE MARKET
AGENCIES BROUGHT SUIT TO SET ASIDE HIS ORDER.  THE DISTRICT COURT
ISSUED A TEMPORARY RESTRAINING ORDER, UNDER WHICH AMOUNTS CHARGED IN
EXCESS OF THE RATES FIXED BY THE ORDER WERE IMPOUNDED, AND LATER IT
UPHELD THE ORDER.  8 F.SUPP.  766.  ON APPEAL HERE, 7 U.S.C. SEC. 217;
28 U.S.C. SECS. 44, 47A, THE CASE WAS SENT BACK TO THE DISTRICT COURT
IN ORDER TO DETERMINE ON THE ISSUES RAISED BY THE PLEADINGS WHETHER THE
AGENCIES HAD BEEN DENIED THE "FULL HEARING" DEMANDED BY SEC. 310 OF THE
ACT.  298 U.S. 468.  THE DISTRICT COURT THEREUPON DECIDED THAT THIS
REQUIREMENT OF THE STATUTE HAD BEEN SATISFIED.  23 F.SUPP.  380.  THE
CASE WAS AGAIN BROUGHT HERE AND THE ORDER OF THE SECRETARY WAS HELD
INVALID BECAUSE OF PROCEDURAL DEFECTS.  304 U.S. 1.  PRIOR TO THIS
DECISION, THE SECRETARY AND THE MARKET AGENCIES HAD AGREED UPON A
HIGHER SCHEDULE OF RATES TO BECOME EFFECTIVE ON DECEMBER 1, 1937. 
HOWEVER, UNDER THE IMPOUNDING ORDER, WHICH HAD CONTINUED IN EFFECT
UNTIL THAT DATE, OVER HALF A MILLION DOLLARS HAD BEEN DEPOSITED.  THE
DISPOSITION OF THIS FUND WAS MADE A GROUND FOR A PETITION FOR REHEARING
AFTER THE SECOND MORGAN DECISION, BUT THE PETITION WAS DENIED BECAUSE
THAT QUESTION WAS FOR THE DISTRICT COURT.  304 U.S. 23, 26.  THE
SECRETARY THEN REOPENED THE ORIGINAL PROCEEDINGS TO DETERMINE
REASONABLE RATES DURING THE IMPOUNDING PERIOD.  BEFORE THE SECRETARY
HAD MADE A NEW ORDER, THE DISTRICT COURT DIRECTED THAT THE IMPOUNDED
MONEYS BE TURNED OVER TO THE MARKET AGENCIES.  24 F.SUPP.  214.  THE
CASE CAME HERE FOR THE THIRD TIME, AND WE REVERSED THE DISTRICT COURT
AND REQUIRED ITS RETENTION OF THE FUND "UNTIL SUCH TIME AS THE
SECRETARY, PROCEEDING WITH DUE EXPEDITION, SHALL HAVE ENTERED A FINAL
ORDER IN THE PROCEEDINGS BEFORE HIM."  307 U.S. 183, 198.  THIS
DECISION WAS RENDERED ON MAY 15, 1939.  A MONTH LATER, THE SECRETARY
ISSUED A NEW SCHEDULE OF RATES FOR THE IMPOUNDING PERIOD BASED ON
ELABORATE FINDINGS.  ACCORDINGLY, THE GOVERNMENT MOVED THE DISTRICT
COURT TO DISTRIBUTE THE FUNDS IN ACCORDANCE WITH THE SECRETARY'S ORDER,
BUT THAT COURT, WITH ONE OF ITS THREE JUDGES DISSENTING, HELD THE ORDER
INVALID AND DIRECTED THAT THE FUNDS BE GIVEN TO THE MARKET AGENCIES. 
32 F.SUPP.  546.  THE CASE IS NOW HERE FOR THE FOURTH TIME. 

THE VALIDITY OF THE SECRETARY'S ORDER HAS UNDERGONE THE CLOSEST
SCRUTINY IN ELABORATE BRIEFS AND EXTENDED ORAL ARGUMENTS.  NOTHING HAS
BEEN OVERLOOKED.  HOWEVER, IN THE FINAL STAGE OF THIS LONG DRAWN OUT
LITIGATION, CRITICAL EXAMINATION REVEALS ONLY A FEW ISSUES DEMANDING
ATTENTION. 

WHEN THE MATTER WAS LAST HERE WE DEFINED THE DUTY OF THE SECRETARY. 
HE WAS TO DETERMINE REASONABLE RATES FOR THE IMPOUNDING PERIOD SO THAT
THERE COULD BE JUST DISTRIBUTION OF THE FUNDS WHICH THE COURT BELOW HAD
TAKEN INTO ITS REGISTRY.  THE NATURE OF THE PROBLEM BEFORE THE
SECRETARY WAS A GUIDE TO ITS SOLUTION.  THE SECRETARY'S TASK WAS NOT
THE USUAL ENTERPRISE OF FIXING RATES FOR THE FUTURE, SO LARGELY AN
EXERCISE IN PROPHECY.  UNIQUE CIRCUMSTANCES MADE HIM, IN 1939, THE
ARBITER OF RATES FOR A PERIOD BETWEEN 1933 AND 1937.  BUT EVEN SUCH A
RETROSPECTIVE DETERMINATION DOES NOT PRESENT A MATHEMATICAL PROBLEM. 
DOUBTS AND DIFFICULTIES INCAPABLE OF EXACT RESOLUTION CONFRONT
JUDGMENT.  MORE THAN THAT, SINCE THE SECRETARY IS THE GUARDIAN OF THE
PUBLIC INTEREST IN REGULATING A BUSINESS OF PUBLIC CONCERN IT IS NOT
FOR HIM MERELY TO REFLECT THE ITEMS ON A PROFIT AND LOSS STATEMENT.  HE
MUST CONSIDER WHETHER THESE REPRESENT SERVICES WHICH PROPERLY SHOULD BE
CHARGED TO THE PUBLIC.  WHILE, THEREFORE, THE SECRETARY IN DETERMINING
RATES FOR THE PAST COULD NOT DENY HIMSELF THE BENEFIT OF HINDSIGHT, HE
WAS NOT MERELY A BOOKKEEPER POSTING ITEMS INTO A LEDGER.  RATES TO
WHICH THESE PUBLIC AGENCIES WERE ENTITLED WERE NOT TO BE DERIVED MERELY
FROM THEIR EXPENDITURES AND ACTUAL INCOME. 

THIS COURT DEFINED THE DUTY OF THE SECRETARY IN ITS DECISION IN THE
307TH U.S. THE RECORD LEAVES NO DOUBT THAT THE SECRETARY, WHEN HE FILED
HIS ORDER A MONTH AFTER THAT DECISION, APPROPRIATELY DISCHARGED THE
DUTY.  HE SERVED UPON THE MARKET AGENCIES THE ORDER OF JUNE 14, 1933,
AND THE FINDINGS UNDERLYING IT AS THE STARTING POINT OF THE INQUIRY. 
THE MARKET AGENCIES PROTESTED AGAINST ANY ORDER "NUNC PRO TUNC AS OF
JUNE 14, 1933," ALLEGED THAT CONDITIONS HAD CHANGED MUCH SINCE 1933,
AND ASKED FOR THE APPOINTMENT OF AN EXAMINER TO TAKE NEW EVIDENCE. 
BECAUSE HE DEEMED THE EARLIER FINDINGS ILLUMINATING AND HELPFUL "AS A
WORKING BASIS FOR THIS HEARING," THE SECRETARY REFUSED TO WITHDRAW
THEM.  BUT HE APPOINTED AN EXAMINER TO HEAR NEW EVIDENCE AND DENIED
"ANY INTENTION OF DEPRIVING THE RESPONDENTS OF THE OPPORTUNITY OF
OFFERING EVIDENCE CONCERNING CONDITIONS AFFECTING THE REASONABLENESS OF
THEIR RATES DURING THE PERIOD SUBSEQUENT TO JUNE 14, 1933."  HE FURTHER
STATED THAT THE "FORECASTS OF CONDITIONS" IN THE 1933 ORDER "CAN NOW BE
CHECKED IN LIGHT OF SUBSEQUENT EVENTS."  HE NEITHER PURPORTED TO MAKE
NOR DID HE MAKE A NUNC PRO TUNC ORDER.  THE SECRETARY THUS ADOPTED A
PROCEDURE WHICH ADMITTED WHATEVER LIGHT WAS SHED BY CHANGE OF
CIRCUMSTANCES AFTER 1933.  THE MARKET AGENCIES FREELY AVAILED
THEMSELVES OF THIS PROCEDURE; AND THE SECRETARY'S FINDINGS LEAVE NO
ROOM FOR DOUBT THAT HIS CONCLUSIONS REPRESENT A JUDGMENT OF 1939 AND
NOT A PROPHECY OF 1933.  HAVING OVERRULED THE CONTENTION OF GOVERNMENT
COUNSEL THAT EVIDENCE OF CONDITIONS AFTER 1933 WAS IRRELEVANT, HE TOOK
NOTE OF THE FACT THAT FEWER LIVESTOCK CAME TO THE MARKET AFTER 1933;
THAT A LARGER NUMBER CAME BY TRUCK, THEREBY CAUSING A DECREASE IN THE
NUMBER OF ANIMALS IN AN AVERAGE CONSIGNMENT; THAT SPECIFIC AS WELL AS
GENERAL ECONOMIC FACTORS TOUCHING THE MARKET AT KANSAS CITY HAD
CHANGED; THAT STATISTICS RELEVANT IN 1933 HAD BECOME OUTMODED; AND THAT
HE HAD BEFORE HIM EVIDENCE OF EXPENSES FOR "BUSINESS GETTING AND
MAINTAINING" AND SALESMANSHIP NOT BEFORE HIM IN 1933.  THE SECRETARY
THUS UNEQUIVOCALLY AVOWED HIS INTENTION TO CONSIDER CONDITIONS AFTER
1933 AND HIS FINDINGS CARRY OUT HIS PURPOSE.  FN1  WE MUST THEREFORE
REJECT THE CLAIM THAT THE SECRETARY'S JUDGMENT WAS FOUNDED ON THE
MISCONCEPTION THAT HE MUST SHUT HIS MIND TO EVERYTHING THAT HAPPENED
AFTER 1933 AND IN 1939 FIX RATES IN THE IMAGINARY WORLD OF 1933. 

ANOTHER ATTACK UPON THE SECRETARY'S ORDER IS THE CONVENTIONAL
OBJECTION THAT THE FINDINGS WERE NOT ROOTED IN PROOF.  TO REEXAMINE
HERE WITH PARTICULARITY THE EXTENSIVE FINDINGS MADE BY THE SECRETARY,
AND TO TEST THEM BY A RECORD OF 1340 PRINTED PAGES AND THOUSANDS OF
PAGES OF ADDITIONAL EXHIBITS, WOULD IN ITSELF GO A LONG WAY TO CONVERT
A CONTEST BEFORE THE SECRETARY INTO ONE BEFORE THE COURTS.  COMPARE
LITCHFIELD V. REGISTER AND RECEIVER, 9 WALL.  575, 578.  WE HAVE
CANVASSED TOO FULLY IN THE PAST THE DUTIES RESPECTIVELY ALLOTTED TO THE
SECRETARY OF AGRICULTURE AND THE COURTS IN THE ENFORCEMENT OF THE
PACKERS AND STOCKYARDS ACT TO JUSTIFY EXTENDED DISCUSSION OF THE
GOVERNING PRINCIPLES.  TAGG BROS. & MOORHEAD V. UNITED STATES, 280 U.S.
420; ACKER V. UNITED STATES, 298 U.S. 426; SEE ALSO UNITED STATES V.
MORGAN, 307 U.S. 183, 190-91.  WE ARE IN THE LEGISLATIVE REALM OF
FIXING RATES.  THIS IS A TASK OF STRIKING A BALANCE AND REACHING A
JUDGMENT ON FACTORS BESET WITH DOUBTS AND DIFFICULTIES, UNCERTAINTY AND
SPECULATION.  ON ULTIMATE ANALYSIS THE REAL QUESTION IS WHETHER THE
SECRETARY OR A COURT SHOULD MAKE AN APPRAISAL OF ELEMENTS HAVING
DELUSIVE CERTAINTY.  CONGRESS HAS PUT THE RESPONSIBILITY ON THE
SECRETARY AND THE CONSTITUTION DOES NOT DENY THE ASSIGNMENT.    THE
OBJECTION THAT THE PROOF DOES NOT SUPPORT THE FINDINGS IS REALLY A
REPETITION IN DISGUISE OF THE UNFOUNDED CLAIM THAT THE SECRETARY
MISCONCEIVED HIS DUTY AND MADE HIS ORDER IN 1939 AS THOUGH HE WERE
ACTING IN 1933.  THE BEDROCK OF THESE VARIOUSLY PHRASED ATTACKS UPON
THE ORDER IS THE CONTENTION THAT THE SECRETARY WAS INDIFFERENT TO
EVENTS OCCURRING AFTER 1933.  THE SHORT ANSWER IS THAT HE WAS NOT.  THE
CONCLUSION WHICH HE DREW FROM THESE EVENTS IS ANOTHER MATTER.  FN2 
SPECIFICALLY, IT IS URGED THAT BY THE INCREASE OF RATES FOR THE FUTURE,
TO WHICH THE MARKET AGENCIES AND THE SECRETARY AGREED IN 1937, CHANGES
IN CIRCUMSTANCES WERE RECOGNIZED, WHILE THE PRESENT ORDER IGNORED THESE
CHANGES BECAUSE ITS RATES ARE AT THE SAME LEVEL AS THE ORIGINAL ORDER. 
BUT THE SECRETARY DID NOT DISREGARD CHANGED MARKET CONDITIONS DURING
THE IMPOUNDING PERIOD.  EVIDENCE SHOWING THESE CHANGES WAS SUBMITTED BY
THE MARKET AGENCIES.  FN3  HE WAS THUS DULY APPRISED OF THE CHANGES AND
THEY ENTERED INTO THE FINDINGS.  TO BE SURE, IN ASCERTAINING THE
REASONABLE RATES FOR THE IMPOUNDING PERIOD HE DID NOT ATTACH TO THEM
THE SIGNIFICANCE WHICH THE MARKET AGENCIES DREW FROM THEM.  AS A RESULT
OF AN ELABORATE STUDY OF CONDITIONS PRIOR TO 1933 AND EVIDENCE
INDICATING NO ESSENTIAL CHANGE IN THOSE CONDITIONS FOR THE PURPOSE AT
HAND DURING THE LATER YEARS, THE SECRETARY CONCLUDED THAT THE MARKET
WAS OVERSTAFFED AND THAT IN THE COMPETITIVE SETTING OF THE BUSINESS
AMOUNTS HAD BEEN SPENT NOT JUSTIFIED BY THAT PUBLIC INTEREST WHICH HE
IS CHARGED TO PROTECT.  ACTUAL EXPENSES FOR SALESMEN'S SALARIES AND
"BUSINESS GETTING," THE ITEMS CHIEFLY IN CONTROVERSY, HE FOUND, DID NOT
FURNISH AN ADEQUATE GUIDE TO THE ASCERTAINMENT OF REASONABLE RATES. 
HAD THE LOWER RATES ORIGINALLY SET BY THE SECRETARY IN 1933 BEEN TESTED
BY EXPERIENCE, AUDITS OF THE MARKET AGENCIES UNDER THESE RATES WOULD
HAVE REFLECTED THE PRACTICAL OPERATION OF THE POLICY OF LOWERING COSTS
UNDER CONTROLLED CONDITIONS.  BUT THIS SOURCE OF EXPERIENCE WAS
UNAVAILABLE BECAUSE THE AGENCIES THROUGHOUT THE IMPOUNDING PERIOD
CONTINUED TO OPERATE UNDER THE HIGHER RATES.  QUITE DIFFERENT
CONSIDERATIONS MAY PROPERLY HAVE INFLUENCED THE SECRETARY IN FIXING
RATES FOR THE IMPOUNDING PERIOD FROM THOSE BY WHICH HE DETERMINED A
SCHEDULE OF RATES FOR THE FUTURE.  THE EXISTENCE OF THE DIFFERENCES IS
RECOGNIZED IN THE AGREEMENT BETWEEN THE SECRETARY AND THE MARKET
AGENCIES WHEREBY THE HIGHER RATES OF THE 1937 SCHEDULE WERE TO BE
"WITHOUT PREJUDICE" EITHER TO THE GOVERNMENT OR TO THE AGENCIES IN THE
PRESENT LITIGATION.  IT WAS FURTHER AGREED IN 1937 THAT AFTER SIX
MONTHS, AND UNLESS THE RATE ORDER OF 1933 WAS FOUND INVALID, THE
SECRETARY COULD AT ANY TIME "WITHOUT FURTHER HEARING" REDUCE THE RATES
FOR THE FUTURE TO THE 1933 LEVEL.  THERE WERE VERY GREAT COMPLEXITIES
IN DETERMINING RATES FOR AN INDUSTRY AFFECTED BY THE UNSTABLE
CONDITIONS WHICH SURROUNDED THE KANSAS CITY MARKET IN 1937.  AND THE
EXPERT TRIBUNAL CHARGED WITH THE TASK MAY WELL HAVE FELT A NEED FOR
FLEXIBILITY IN THE PROPHECY INVOLVED IN SETTING FUTURE RATES WHICH DID
NOT ENTER THE JUDGMENT REQUIRED IN FIXING RATES FOR A PAST PERIOD.  IT
IS NOT FOR US TO TRY TO PENETRATE THE PRECISE COURSE OF THE SECRETARY'S
REASONING.  OUR DUTY IS AT AN END WHEN WE FIND, AS WE DO FIND, THAT THE
SECRETARY WAS RESPONSIBLY CONSCIOUS OF CONDITIONS AT THE MARKET DURING
THE YEARS FOLLOWING 1933, THAT HE DULY WEIGHED THEM, AND NEVERTHELESS
CONCLUDED THAT RATES SIMILAR TO THOSE IN THE 1933 ORDER WERE PROPER. 

BUT THE MARKET AGENCIES GO BEYOND SAYING THAT THE RECORD DID NOT
WARRANT WHAT THE SECRETARY FOUND.  THEY SAY THAT BIAS DISQUALIFIED
HIM.  THIS SERIOUS CHARGE DERIVES FROM A LETTER WRITTEN BY THE
SECRETARY TO THE NEW YORK TIMES IMMEDIATELY FOLLOWING THE DECISION OF
THIS COURT IN THE SECOND MORGAN CASE, 304 U.S. 1.  BY THAT DECISION,
THE COURT HAD UPSET THE ORDER OF 1933 BECAUSE OF PROCEDURAL DEFECTS. 
LARGELY BECAUSE OF HIS ASSUMPTION THAT THIS MEANT THE RETURN OF THE
IMPOUNDED FUNDS TO THE MARKET AGENCIES, THE SECRETARY IN HIS LETTER
VIGOROUSLY CRITICIZED THE DECISION.  THE MARKET AGENCIES IN DUE COURSE
MOVED TO DISQUALIFY THE SECRETARY IN THE PROCEEDINGS STARTED BY HIM TO
FIX NEW RATES.  IN DENYING THEIR MOTION THE SECRETARY WROTE A PATENTLY
SINCERE DENIAL OF BIAS.  HE STATED THAT HE HAD COMPLAINED AGAINST A
RETURN OF THE IMPOUNDED FUNDS TO THE MARKET AGENCIES PRIOR TO A
DETERMINATION OF THE RATES ON THE MERITS, THAT THE DENIAL OF THE
PETITION FOR REHEARING, 304 U.S. 23, 26, HAD SHOWN HIM THE ERROR OF HIS
ASSUMPTION, THAT IN HIS LETTER OF CRITICISM HE MADE NO PREJUDGMENT
ABOUT THE RATES TO BE FIXED, AND THAT HIS ONLY CONCERN WAS TO "SEE THAT
THE SUBSTANTIVE RIGHTS OF THE PARTIES ARE FAIRLY DETERMINED."  HE ADDED
THAT "AS A MATTER OF EXPEDIENCY" HE MIGHT HAVE DISQUALIFIED HIMSELF BUT
FOR THE FACT THAT, WHILE THE MARKET AGENCIES WERE PRESSING HIS
DISQUALIFICATION, THEY WERE SIMULTANEOUSLY URGING THAT NONE OTHER THAN
THE SECRETARY HAD LEGAL AUTHORITY TO MAKE THE RATE ORDER.  PLAINLY
ENOUGH, WHEN IT WAS THUS SUGGESTED THAT HE CREATE A SITUATION IN WHICH
NO ORDER COULD BE MADE, THE SECRETARY WAS OFFERED NO ESCAPE FROM HIS
DUTY EVEN HAD HE PREFERRED TO CONSULT THE COMFORTS OF PERSONAL
CONVENIENCE. 

BUT, INTRINSICALLY, THE LETTER DID NOT REQUIRE THE SECRETARY'S
DIGNIFIED DENIAL OF BIAS.  THAT HE NOT MERELY HELD, BUT EXPRESSED,
STRONG VIEWS ON MATTERS BELIEVED BY HIM TO HAVE BEEN IN ISSUE, DID NOT
UNFIT HIM FOR EXERCISING HIS DUTY IN SUBSEQUENT PROCEEDINGS ORDERED BY
THIS COURT.  AS WELL MIGHT IT BE ARGUED THAT THE JUDGES BELOW, WHO HAD
THREE TIMES HEARD THIS CASE, HAD DISQUALIFYING CONVICTIONS.  IN
PUBLICLY CRITICIZING THIS COURT'S OPINION THE SECRETARY MERELY INDULGED
IN A PRACTICE FAMILIAR IN THE LONG HISTORY OF ANGLO-AMERICAN
LITIGATION, WHEREBY UNSUCCESSFUL LITIGANTS AND LAWYERS GIVE VENT TO
THEIR DISAPPOINTMENT IN TAVERN OR PRESS.  CABINET OFFICERS CHARGED BY
CONGRESS WITH ADJUDICATORY FUNCTIONS ARE NOT ASSUMED TO BE FLABBY
CREATURES ANY MORE THAN JUDGES ARE.  BOTH MAY HAVE AN UNDERLYING
PHILOSOPHY IN APPROACHING A SPECIFIC CASE.  BUT BOTH ARE ASSUMED TO BE
MEN OF CONSCIENCE AND INTELLECTUAL DISCIPLINE, CAPABLE OF JUDGING A
PARTICULAR CONTROVERSY FAIRLY ON THE BASIS OF ITS OWN CIRCUMSTANCES. 
NOTHING IN THIS RECORD DISTURBS SUCH AN ASSUMPTION. 

AND SO WE CONCLUDE THAT THE ORDER OF THE SECRETARY FURNISHES "THE
APPROPRIATE BASIS FOR ACTION IN THE DISTRICT COURT IN MAKING
DISTRIBUTION OF THE FUND IN ITS CUSTODY."  UNITED STATES V. MORGAN, 307
U.S. 183, 198.  BUT, FINALLY, A MATTER NOT TOUCHING THE VALIDITY OF THE
ORDER REQUIRES CONSIDERATION.  OVER THE GOVERNMENT'S OBJECTION THE
DISTRICT COURT AUTHORIZED THE MARKET AGENCIES TO TAKE THE DEPOSITION OF
THE SECRETARY.  THE SECRETARY THEREUPON APPEARED IN PERSON AT THE
TRIAL.  HE WAS QUESTIONED AT LENGTH REGARDING THE PROCESS BY WHICH HE
REACHED THE CONCLUSIONS OF HIS ORDER, INCLUDING THE MANNER AND EXTENT
OF HIS STUDY OF THE RECORD AND HIS CONSULTATION WITH SUBORDINATES.  HIS
TESTIMONY SHOWS THAT HE DEALT WITH THE ENORMOUS RECORD IN A MANNER NOT
UNLIKE THE PRACTICE OF JUDGES IN SIMILAR SITUATIONS, AND THAT HE HELD
VARIOUS CONFERENCES WITH THE EXAMINER WHO HEARD THE EVIDENCE.  MUCH WAS
MADE OF HIS DISREGARD OF A MEMORANDUM FROM ONE OF HIS OFFICIALS WHO, ON
READING THE PROPOSED ORDER, URGED CONSIDERATIONS FAVORABLE TO THE
MARKET AGENCIES.  BUT THE SHORT OF THE BUSINESS IS THAT THE SECRETARY
SHOULD NEVER HAVE BEEN SUBJECTED TO THIS EXAMINATION.  THE PROCEEDING
BEFORE THE SECRETARY "HAS A QUALITY RESEMBLING THAT OF A JUDICIAL
PROCEEDING."  MORGAN V. UNITED STATES, 298 U.S. 468, 480.  SUCH AN
EXAMINATION OF A JUDGE WOULD BE DESTRUCTIVE OF JUDICIAL
RESPONSIBILITY.  WE HAVE EXPLICITLY HELD IN THIS VERY LITIGATION THAT
"IT WAS NOT THE FUNCTION OF THE COURT TO PROBE THE MENTAL PROCESSES OF
THE SECRETARY."  304 U.S. 1, 18.  JUST AS A JUDGE CANNOT BE SUBJECTED
TO SUCH A SCRUTINY, COMPARE FAYERWEATHER V. RITCH, 195 U.S. 276, 306
07, SO THE INTEGRITY OF THE ADMINISTRATIVE PROCESS MUST BE EQUALLY
RESPECTED.  SEE CHICAGO, B. & Q. RY. CO. V. BABCOCK, 204 U.S. 585,
593.  IT WILL BEAR REPEATING THAT ALTHOUGH THE ADMINISTRATIVE PROCESS
HAS HAD A DIFFERENT DEVELOPMENT AND PURSUES SOMEWHAT DIFFERENT WAYS
FROM THOSE OF COURTS, THEY ARE TO BE DEEMED COLLABORATIVE
INSTRUMENTALITIES OF JUSTICE AND THE APPROPRIATE INDEPENDENCE OF EACH
SHOULD BE RESPECTED BY THE OTHER.  UNITED STATES V. MORGAN, 307 U.S.
183, 191.  REVERSED. 

FN1  ATTENTION IS CALLED TO THE TITLE PAGE OF THE TENTATIVE FINDINGS,
ON WHICH APPEARED, OPPOSITE THE DOCKET NUMBER OF THE CASE AND THE NAMES
OF THE FORMAL PARTIES, THE WORDS "TENTATIVE FINDINGS OF FACT,
CONCLUSIONS AND PROPOSED ORDER, ISSUED AS OF JUNE 14, 1933."  THIS
FORMAL CAPTION IS NOT AN UNNATURAL DESCRIPTION OF THE STARTING POINT OF
THE SECRETARY'S NEW INQUIRY.  IT CLEARLY IS NOT DESCRIPTIVE OF HIS
FINAL FINDINGS AND ORDER, LET ALONE A DENIAL OF THE PROPER THEORY ON
WHICH HE AVOWEDLY PROCEEDED. 

FN2  THAT INFERENCES FROM FACTS AND CONTENTIONS REGARDING THEIR
SIGNIFICANCE ARE THE REAL STUFF OF THESE RATE DETERMINATIONS IS WELL
ILLUSTRATED BY THE PHASE OF THE PROBLEM BEFORE THE SECRETARY THAT WAS
MOST STRONGLY PRESSED UPON US.  IT IS UNDISPUTED THAT SINCE 1933 THE
ARRIVAL OF ANIMALS BY TRUCK HAS INCREASED, THEREBY CAUSING A DECREASE
IN THE AVERAGE NUMBER OF ANIMALS IN A CONSIGNMENT.  AND SINCE THE
CONSIGNMENT IS THE UNIT OF COST, A DECREASE IN THE NUMBER OF ANIMALS
RESULTS IN AN INCREASE IN COST PER HEAD IN THE CONSIGNMENT.  HENCE,
FORMAL LOGIC CONCLUDES, THE PRESENT ORDER IN SETTING THE SAME RATES AS
THOSE OF 1933 FAILS TO REFLECT THIS INCREASE IN PER HEAD COST, AND ON
THAT GROUND IS INVALID.  BUT BOTH THE 1933 AND 1939 SCHEDULES RECOGNIZE
THAT THERE ARE MINIMAL COSTS UNRELATED TO THE NUMBER OF ANIMALS IN A
CONSIGNMENT.  BOTH ORDERS, THEREFORE, WERE GRADUATED ACCORDING TO THE
NUMBER OF ANIMALS IN A CONSIGNMENT.  THE SECRETARY FOUND THAT THIS
GRADUATED SCALE WHICH "PRODUCES AN INCREASING PER HEAD REVENUE AS THE
NUMBER OF HEAD IN THE CONSIGNMENT DECREASES" WOULD "GIVE RECOGNITION TO
THE CHANGING METHOD OF ARRIVAL OF LIVE-STOCK."  MOREOVER, THE DECREASE
IN THE SIZE OF CONSIGNMENTS MAY WELL HAVE BEEN REFLECTED IN THE
INCREASED ESTIMATE OF SALESMANSHIP COST.  ALL THESE CONSIDERATIONS ONLY
ILLUSTRATE THAT WE ARE MOVING IN A DIFFICULT AND SPECIALIZED REALM OF
JUDGMENT WHICH HAS BEEN ENTRUSTED TO THE SECRETARY OF AGRICULTURE AND
NOT TO THE COURTS.  THE SECRETARY'S JUDGMENT MUST PREVAIL SINCE HIS
FINDING HAD THE SUPPORT OF INFERENCES FAIRLY DRAWN FROM THE ENTIRE
EVIDENCE, INCLUDING ALL THAT THE MARKET AGENCIES SAW FIT TO INTRODUCE
BEARING ON THEIR OPERATIONS AFTER 1933. 

FN3  AN OBJECTION TO AN EXCLUSION OF EVIDENCE BY THE EXAMINER
REQUIRES BUT SLIGHT COMMENT.  TWO COOPERATIVE COMMISSION COMPANIES HAD
ACCEPTED THE RATES OF THE SECRETARY'S ORDER OF 1933, AND THE MARKET
AGENCIES ASKED THAT THE ANNUAL REPORTS OF THESE COMPANIES FOR THE
IMPOUNDING PERIOD BE PRODUCED BY THE DIVISION OF THE DEPARTMENT OF
AGRICULTURE WITH WHICH THEY WERE FILED.  THE EXAMINER REFUSED TO ORDER
PRODUCTION OF THE REPORTS ON THE GROUND THAT HE HAD NO AUTHORITY TO DO
SO, BASING HIS RULING ON A SECTION WHICH THE PACKERS AND STOCKYARDS ACT
INCORPORATES FROM THE FEDERAL TRADE COMMISSION ACT AND WHICH PROVIDES
THAT IT SHALL BE A MISDEMEANOR FOR ANY OFFICER OF THE REGULATORY AGENCY
TO MAKE PUBLIC ANY INFORMATION WHICH THE AGENCY HAS OBTAINED "WITHOUT
ITS AUTHORITY, UNLESS DIRECTED BY A COURT."  7 U.S.C. SEC. 222, 15
U.S.C. SEC. 50.  WE NEED NOT DETERMINE WHETHER THE REPORTS SHOULD
PROPERLY HAVE BEEN ADMITTED.  IF THEY SHOULD HAVE BEEN, THE STATUTE
PROVIDES AN ORDERLY WAY FOR HAVING THIS DONE DURING THE COURSE OF THE
HEARING BY SEEKING THE SECRETARY'S AUTHORIZATION.  HAVING FAILED TO
PURSUE THE WAY OF THE STATUTE, THE MARKET AGENCIES WERE DEBARRED FROM
RAISING THE MATTER AT A LATER TIME. 

MR. JUSTICE REED DID NOT PARTICIPATE IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE ROBERTS: 

WITH MUCH THAT IS SAID IN THE OPINION OF THE COURT I AGREE, BUT I AM
COMPELLED TO DISSENT FROM THE CONCLUSION.  DESPITE THE FACT THAT THIS
LITIGATION HAS EXTENDED OVER MANY YEARS, I STILL THINK THAT NOT ONLY
THE RIGHTS OF THE MARKET AGENCIES BUT THE PRINCIPLES INVOLVED REQUIRE
THE COURT TO TAKE CARE THAT THE LITIGATION IS DISPOSED OF IN ACCORDANCE
WITH THE PRINCIPLES IT HAS LAID DOWN.  THE RESULT NOW REACHED IS NOT IN
ACCORDANCE WITH THOSE PRINCIPLES.  A RECITAL OF THE COURSE OF THE
LITIGATION IS NECESSARY FOR AN UNDERSTANDING OF THE CASE AS NOW
PRESENTED. 

RATES FOR THE MARKET AGENCIES AT KANSAS CITY WERE FIXED BY THE
SECRETARY OF AGRICULTURE  FN1 JULY 24, 1923.  BY VIRTUE OF THE STATUTE
THESE BECAME THE LEGAL RATES AND THE AGENCIES WERE BOUND NOT TO EXCEED
THEM UNTIL THE FURTHER ORDER OF THE SECRETARY.  APRIL 7, 1930, THE
SECRETARY INSTITUTED AN INQUIRY INTO THE EXISTING RATES.  JUNE 14,
1933, HE ISSUED AN ORDER REDUCING THEM. 

JULY 19, 1933, THE MARKET AGENCIES BROUGHT SUIT TO ENJOIN AND SET
ASIDE THE ORDER.  THE DISTRICT COURT ENTERED A TEMPORARY INJUNCTION
JULY 22, 1933, IN CONNECTION WITH WHICH IT PROVIDED THAT THE DIFFERENCE
BETWEEN THE RATES BEING CHARGED BY THE AGENCIES AND THOSE FIXED BY THE
ORDER UNDER ATTACK SHOULD BE IMPOUNDED PENDING THE OUTCOME OF THE
LITIGATION.  UPON THE TRIAL OF THE CAUSE THE COURT REFUSED TO CONSIDER
AN ISSUE TENDERED BY THE AGENCIES AS TO WHETHER THE SECRETARY HAD
GRANTED THEM A FULL HEARING.  UPON EXAMINATION OF THE RECORD, IT HELD
THE ORDER WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND, ON OCTOBER 29,
1934, DISMISSED THE BILL.  FN2  THIS COURT REVERSED, ON MAY 25, 1936,
HOLDING THAT THE DISTRICT COURT SHOULD HAVE CONSIDERED AND DECIDED THE
QUESTION WHETHER THE AGENCIES HAD BEEN AFFORDED A FULL HEARING.  FN3 
ON A FURTHER TRIAL THE DISTRICT COURT AGAIN UPHELD THE ORDER BY A
DECREE OF JULY 2, 1937.  FN4 THE UNITED STATES APPEALED FROM THIS
DECREE.  IN THE MEANTIME, HOWEVER, A SIGNIFICANT THING OCCURRED.  ON
NOVEMBER 14, 1937, THE SECRETARY APPROVED NEW RATES, EFFECTIVE NOVEMBER
1, 1937, IN RECOGNITION OF CHANGED CONDITIONS EXISTING IN THE BUSINESS
AT KANSAS CITY.  THE IMPOUNDING ORDER, THEREFORE, CEASED TO OPERATE
NOVEMBER 1, 1937. 

THIS COURT REVERSED THE SECOND DECREE OF THE DISTRICT COURT BECAUSE
IT FOUND THAT THE AGENCIES HAD BEEN DENIED A FULL HEARING IN THE
PROCEEDINGS WHICH EVENTUATED IN THE ORDER OF 1933.  ITS DECISION WAS
RENDERED APRIL 25, 1938, AND A REHEARING WAS DENIED MAY 31, 1938.  FN5 

THE SECRETARY AND HIS LEGAL ADVISERS EVIDENTLY BELIEVED, AND, AS I
THINK, CORRECTLY, THAT THE OLD RATES AUTHORIZED IN 1923 STOOD UNTIL A
NEW ORDER, LAWFULLY MADE, SUPERSEDED THEM FOR THE FUTURE.  THE RATES
FIXED FOR THE FUTURE BY THE ORDER OF 1933 HAD NOT BECOME EFFECTIVE AND
THE ACT CONTAINED NO PROVISION FOR ALTERING RATES CHARGED IN THE PAST
UNDER AUTHORITY OF THE EXISTING AND OUTSTANDING ORDER OF 1923, OR
GRANTING REPARATION IN RESPECT OF THEM.  THE SECRETARY SEEMS TO HAVE
THOUGHT THAT HE COULD REACH THIS SITUATION BY THE ENTRY OF A NUNC PRO
TUNC ORDER AS OF JULY 14, 1933.  ON JUNE 2, 1938, THEREFORE, HE
DIRECTED THAT THE PROCEEDING BE REOPENED AND THAT THE "PROCEEDINGS,
FINDINGS OF FACT, CONCLUSION AND ORDER" ISSUED ON JUNE 14, 1933, BE
SERVED UPON THE AGENCIES AS THE "TENTATIVE FINDINGS OF FACT, CONCLUSION
AND PROPOSED ORDER" OF THE SECRETARY, AND HE DENOMINATED THEM AS
"TENTATIVE FINDINGS OF FACT, CONCLUSION, AND PROPOSED ORDER" ISSUED AS
OF JUNE 14, 1933.  IT IS PLAIN THAT HE PROPOSED THUS TO CURE WHAT HAD
BEEN FOUND TO BE THE DEFECT IN THE ORDER, BY AFFORDING THE MARKET
AGENCIES AN OPPORTUNITY TO FILE AND ARGUE EXCEPTIONS, IN AN EFFORT TO
SHOW ANY INFIRMITY IN THE FINDINGS AND CONCLUSION ON WHICH THE 1933
ORDER WAS BASED.  IF NONE WAS MADE TO APPEAR, HE PROPOSED TO ISSUE THE
ORDER NUNC PRO TUNC AS OF ITS ORIGINAL DATE.  IT IS TRUE THAT AFTER
EXCEPTIONS WERE FILED, AND UPON THE HEARING BEFORE AN EXAMINER, THE
AGENCIES WERE PERMITTED TO OFFER EVIDENCE TO SHOW CHANGED CONDITIONS
SUPERVENING IN THE PERIOD BETWEEN 1933 AND 1937.  IT IS ALSO TRUE THAT,
WHILE THE EXAMINER RETAINED ALL OF THE FINDINGS PREVIOUSLY MADE AS THE
FOUNDATION FOR THE ORDER OF 1933, HE ADDED CERTAIN FINDINGS, BUT HE DID
NOT, IN ANY MATERIAL RESPECT, ALTER THE ULTIMATE FINDINGS AND, INDEED,
HE RETAINED THE EXACT RATES FIXED IN THE EARLIER ORDER AND LEFT
UNDISTURBED EVERY FINDING AS TO COST (WITH ONE IMMATERIAL EXCEPTION),
EVEN TO THE FOURTH DECIMAL PLACE, AS IT HAD STOOD IN THE ORIGINAL
REPORT. 

IMMEDIATELY AFTER THE REOPENING OF THE PROCEEDING CONSEQUENT UPON THE
DECISION OF THIS COURT OF MAY 31, 1938, THE SECRETARY, ON JUNE 12,
1938, APPLIED TO THE DISTRICT COURT FOR AN ORDER STAYING THE
DISTRIBUTION OF THE IMPOUNDED FUNDS, PENDING HIS FURTHER DECISION AND
ORDER.  IN HIS PETITION HE SAID:  "AFTER A FULL HEARING THE SECRETARY
WILL DETERMINE BY AN ORDER AS OF JUNE 14, 1933, WHAT RATES MAY
REASONABLY BE CHARGED BY PETITIONERS TO THEIR CLIENTS FOR THE SERVICES
RENDERED THEM."  THE DISTRICT COURT DENIED THE APPLICATION.  FN6 

THE UNITED STATES APPEALED FROM THE DECREE.  IN ITS BRIEF IT STATED
"THE ONLY PURPOSE AND EFFECT ...  (OF THE REOPENED PROCEEDING) IS TO
DETERMINE WHETHER AND TO WHAT EXTENT THE APPELLEES HAVE BEEN PREJUDICED
BY THE PROCEDURAL DEFECT IN THE EARLIER PROCEEDING." 

BEFORE THE CASE HAD BEEN DECIDED HERE, THE REOPENED PROCEEDING BEFORE
THE SECRETARY HAD SO PROGRESSED THAT THE EVIDENCE HAD BEEN CLOSED, A
TENTATIVE REPORT MADE BY AN EXAMINER, EXCEPTIONS FILED, AND ARGUMENT
HEARD BY THE SECRETARY.  THE RECORD PLAINLY DISCLOSES THAT, UP TO THE
TIME OF OUR FINAL DECISION ON THIS LAST APPEAL, THE SECRETARY HAD BEEN
CONTENT TO TAKE THE DATA DISCLOSED BY HIS INVESTIGATION OF THE MARKET
AGENCIES' ACTIVITIES IN THE YEARS 1929, 1930 AND 1931 AS THE BASIS OF
ANY ORDER, AND THIS WAS NATURAL IF, AS HE THEN SUPPOSED, HE WAS
JUSTIFIED IN ENTERING AN ORDER NUNC PRO TUNC AS OF THE DATE OF HIS
ORIGINAL 1933 ORDER. 

THIS COURT RENDERED ITS OPINION IN THE LAST APPEAL MAY 15, 1939.  FN7
SPEAKING BY A MAJORITY, THE COURT THERE HELD THAT, AS THE DISTRICT
COURT WAS ACTING AS A COURT OF EQUITY IN THE PREMISES, THE IMPOUNDED
FUNDS SHOULD BE DISBURSED ACCORDING TO THE EQUITIES OF THE SITUATION. 
IT ADVERTED TO THE FACT THAT THE RATES FIXED BY THE SECRETARY OCTOBER
14, 1937, GOVERNED FOR THE FUTURE UNTIL ALTERED IN ACCORDANCE WITH LAW,
BUT IT HELD THAT THE EQUITIES OF THE CASE REQUIRED AN INVESTIGATION AS
TO WHETHER THE RATES CHARGED IN THE INTERVAL BETWEEN 1933 AND 1937 HAD
BEEN UNREASONABLE AND, AS A RESULT, WHETHER IT WOULD BE INEQUITABLE TO
WITHHOLD FROM THE MARKET AGENCIES' CUSTOMERS AND RETURN TO THE MARKET
AGENCIES ALL OR ANY PART OF THE IMPOUNDED FUND.  THE COURT WAS OF THE
VIEW THAT THE SECRETARY WAS IN A PECULIARLY FAVORABLE POSITION TO FIND
THE FACTS AND ADVISE THE COURT UPON THIS SUBJECT AND THAT THE COURT
OUGHT TO COOPERATE WITH THE SECRETARY TO ATTAIN A JUST RESULT. 

AT THIS JUNCTURE THE REOPENED PROCEEDING WAS UNDER SUBMISSION BEFORE
THE SECRETARY.  IT IS TO BE NOTED THAT HE HAD REFUSED TO CONSIDER THE
DATA IN HIS OWN POSSESSION WITH RESPECT TO THE ACTUAL EXPERIENCE OF TWO
OF THE MARKET AGENCIES WHICH HAD CONFORMED TO THE RATES HE FIXED IN
1933.  IT IS FURTHER TO BE NOTED THAT THE EXISTENCE OF CHANGED
CONDITIONS NOT ONLY IS SHOWN BY THE UNCONTRADICTED EVIDENCE OFFERED BY
THE AGENCIES BUT BY THE FACT THAT THE SECRETARY RECOGNIZED SUCH CHANGE
IN MAKING HIS ORDER OF OCTOBER 14, 1937. 

THE COURT BELOW HAS FOUND THAT CONDITIONS IN THE BUSINESS HAD
SUBSTANTIALLY, AND IN SOME RESPECTS RADICALLY, CHANGED SINCE THE
COMPLETION OF THE ORIGINAL RECORD ON WHICH THE 1933 ORDER WAS BASED. 
THE COURT FOUND THE FACTS AS TO THE CHANGES WHICH HAD INCREASED THE
COST OF DOING THE BUSINESS.  THE GOVERNMENT DOES NOT QUESTION THE
CORRECTNESS OF THESE FINDINGS.  I THINK THESE INCREASED COSTS CANNOT BE
IGNORED OR DISMISSED WITH THE COMMENT THAT THE SECRETARY CONSIDERED
THEM, WHEN IT IS PLAIN HE DID NOT.  THIS COURT DID NOT INTEND BY ITS
DECISION IN 1939 THAT THE SECRETARY SHOULD SHUT HIS EYES TO THESE
CHANGED CONDITIONS, AND MAKE A FORECAST IN 1939 AS OF 1933 AND UPON THE
DATA AVAILABLE IN 1933, AS IF HE HAD BEFORE HIM ONLY THE EXPERIENCE
PRIOR TO 1933 AND WERE THEN ACTING.  OF A SIMILAR SITUATION THIS COURT
HAS SAID:  "A FORECAST GIVES US ONE RATE.  A SURVEY GIVES ANOTHER.  TO
PREFER THE FORECAST TO THE SURVEY IS AN ARBITRARY JUDGMENT."  FN8 

THE SECRETARY HAD MADE A CAREFUL INVESTIGATION OF THE OPERATIONS OF
THE MARKET AGENCIES IN THE YEARS PRIOR TO 1933.  THE SAME DATA WERE
AVAILABLE TO HIM IN 1939 FOR THE PERIOD 1933 TO 1937, BUT WERE NOT
CONSIDERED.  WHAT HE SHOULD HAVE DONE, IN THE LIGHT OF THIS COURT'S
DECISION, WAS AGAIN TO REOPEN THE CAUSE AND TO INVESTIGATE THE FAIRNESS
AND REASONABLENESS OF THE CHARGES EXACTED FROM 1933 TO 1937, IN THE
LIGHT OF ACTUAL EXPERIENCE.  TO ASSERT THAT HE DID IN FACT PURSUE THIS
COURSE IS TO PLACE AN UNJUSTIFIED GLOSS UPON THE RECORD NOW BEFORE THE
COURT. 

WE OUGHT NOT TO CONCLUDE THE PARTIES BY A STRAINED CONSTRUCTION OF
THE RECORD FACTS, OR BY APPLYING TO THIS INQUIRY TECHNICAL RULES OF
EVIDENCE AND PROCEDURE WHICH HAVE NO PLACE IN SUCH A PROCEEDING.  ON
THE CONTRARY, WE SHOULD REQUIRE THAT TO BE DONE WHICH THE BROAD
EQUITIES OF THE CASE DEMAND.  NO LESS, IT SEEMS TO ME, WILL SATISFY THE
MANDATE OF THIS COURT IN ITS EARLIER PRONOUNCEMENT.  I SHOULD,
THEREFORE, REVERSE THE DECREE AND DIRECT THAT THE SECRETARY ASCERTAIN
THE FACTS UPON ALL AVAILABLE EVIDENCE, IN ACCORDANCE WITH THE DECISIONS
OF THIS COURT WHEN THE CASE WAS LAST HERE. 

FN1  SEVERAL INCUMBENTS OF THE OFFICE ACTED IN THE CASE AT SUCCESSIVE
DATES.  THE TERM SECRETARY IS USED TO DESIGNATE THE OFFICIAL WHO ACTED
IN ANY INSTANCE. 

FN2  8 F.SUPP.  766. 

FN3  298 U.S. 468. 

FN4  23 F.SUPP.  380. 

FN5  304 U.S. 1, 23. 

FN6  24 F.SUPP.  214. 

FN7  307 U.S. 183. 

FN8  WEST OHIO GAS CO. V. PUBLIC UTILITIES COMMISSION, 294 U.S. 79,
82. 
..END :









HELVERING V. REYNOLDS, 313 U.S. 428 


NO. 684.  ARGUED APRIL 30, MAY 1, 1941.  - DECIDED MAY 26, 1941.  - 114
F.2D 804, REVERSED. 


1.  UNDER SEC. 113(A)(5) OF THE REVENUE ACT OF 1934, WHICH PROVIDES
THAT WHERE PROPERTY IS "ACQUIRED BY BEQUEST, DEVISE, OR INHERITANCE"
THE BASIS FOR COMPUTING GAIN OR LOSS SHALL BE ITS VALUE "AT THE TIME OF
SUCH ACQUISITION," AND UNDER TREASURY REGULATIONS 86 CONSTRUING THAT
PROVISION, THE BASIS IN THE CASE OF SECURITIES THAT WERE OWNED BY THE
TESTATOR IN SPECIE AND THAT WERE DELIVERED TO THE TAXPAYER IN PURSUANCE
OF A TESTAMENTARY TRUST, AND SOLD BY HIM, IS THEIR VALUE AT THE TIME OF
THE TESTATOR'S DEATH, ALTHOUGH THE TAXPAYER'S INTEREST AT THAT TIME,
UNDER THE WILL WAS A CONTINGENT REMAINDER.  P. 431. 

THE FACT THAT THE REGULATION WAS NOT PROMULGATED UNTIL SOME TIME
AFTER THE TRANSACTIONS OCCURRED WHICH GAVE RISE TO THE TAX, IS
IMMATERIAL. 

2.  THE RULE THAT RE-ENACTMENT IMPLIES A LEGISLATIVE ADOPTION OF
ADMINISTRATIVE OR JUDICIAL CONSTRUCTION OF THE LANGUAGE RE-ENACTED IS
NO MORE THAN AN AID IN STATUTORY CONSTRUCTION.  IT DOES NOT MEAN THAT
THE PRIOR CONSTRUCTION BECOMES SO IMBEDDED IN THE LAW THAT ONLY
CONGRESS CAN CHANGE IT; IT GIVES WAY BEFORE CHANGES IN THE PRIOR RULE
OR PRACTICE THROUGH EXERCISE BY THE ADMINISTRATIVE AGENCY OF ITS
CONTINUING RULE-MAKING POWER.  P. 432. 

3.  UNDER THE REVENUE ACT OF 1934, WHERE SECURITIES DELIVERED BY A
TESTAMENTARY TRUSTEE TO A LEGATEE WHO DERIVED OWNERSHIP THROUGH A
BEQUEST OF A CONTINGENT REMAINDER, WERE SECURITIES PURCHASED BY THE
TRUSTEE, THE BASIS FOR COMPUTING GAIN OR LOSS WAS THEIR COST TO THE
TRUSTEE.  P. 434. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. REYNOLDS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 312 U.S. 672, TO REVIEW A JUDGMENT OVERRULING A DECISION
OF THE BOARD OF TAX APPEALS, 41 B.T.A. 59, SUSTAINING A TAX
ASSESSMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT'S FATHER DIED IN 1918, LEAVING HIM A REMAINDER INTEREST IN
A TESTAMENTARY TRUST, AN INTEREST WHICH THE COURT BELOW FOUND TO BE
CONTINGENT UNDER NORTH CAROLINA LAW.  HE RECEIVED HIS SHARE OF THE
TRUST, INCLUDING SECURITIES, FROM THE TRUSTEE ON APRIL 4, 1934.  SOME
OF THE SECURITIES SO DISTRIBUTED HAD BEEN RECEIVED BY THE TRUSTEE FROM
THE DECEDENT'S ESTATE AND OTHERS HAD BEEN PURCHASED BY THE TRUSTEE
BETWEEN 1918 AND 1934.  DURING THE YEAR 1934 RESPONDENT SOLD SOME OF
THE SECURITIES IN EACH GROUP.  IN COMPUTING HIS GAINS AND LOSSES HE
USED AS THE BASIS THE VALUE ON APRIL 4, 1934, WHEN HE RECEIVED THE
SECURITIES FROM THE TRUSTEE.  THE COMMISSIONER DETERMINED THAT THE
PROPER BASIS UNDER THE REVENUE ACT OF 1934(48 STAT. 680) WAS THE VALUE
OF THE SECURITIES AT THE TIME OF DECEDENT'S DEATH IN THE CASE OF THOSE
THEN HELD BY DECEDENT AND THEIR COST TO THE TRUSTEE IN THE CASE OF
THOSE WHICH THE TRUSTEE HAD PURCHASED.  THE BOARD OF TAX APPEALS
SUSTAINED THE COMMISSIONER.  41 B.T.A. 59.  THE CIRCUIT COURT OF
APPEALS REVERSED.  114 F.2D 804.  WE GRANTED THE PETITION FOR
CERTIORARI (EXCLUSIVE OF THE QUESTION WHETHER THE REMAINDER WAS VESTED
OR CONTINGENT UNDER THE LAW OF NORTH CAROLINA) BECAUSE OF A CONFLICT
AMONG THE CIRCUITS.  FN1 

SEC. 113(A)(5) OF THE 1934 ACT PROVIDED:  "IF THE PROPERTY WAS
ACQUIRED BY BEQUEST, DEVISE, OR INHERITANCE, OR BY THE DECEDENT'S
ESTATE FROM THE DECEDENT, THE BASIS SHALL BE THE FAIR MARKET VALUE OF
SUCH PROPERTY AT THE TIME OF SUCH ACQUISITION."  THE GOVERNMENT PLACES
CONSIDERABLE STRESS ON MAGUIRE V. COMMISSIONER, ANTE, P. 1; HELVERING
V. GAMBRILL, ANTE, P. 11; AND HELVERING V. CAMPBELL, ANTE, P. 15,
DECIDED UNDER THE 1928 AND 1932 ACTS, IN SUPPORT OF ITS CONTENTION THAT
AS RESPECTS SECURITIES OWNED BY DECEDENT THE PROPER BASIS WAS THEIR
VALUE AT HIS DEATH EVEN THOUGH RESPONDENT'S INTEREST WAS THEN
CONTINGENT.  AND IT ALSO RELIES ON TREASURY REGULATIONS 86, PROMULGATED
UNDER THE 1934 ACT, ART. 113(A)(5)-1(B) OF WHICH PROVIDED THAT "ALL
TITLES TO PROPERTY ACQUIRED BY BEQUEST, DEVISE, OR INHERITANCE RELATE
BACK TO THE DEATH OF THE DECEDENT, EVEN THOUGH THE INTEREST OF HIM WHO
TAKES THE TITLE WAS, AT THE DATE OF DEATH OF THE DECEDENT, LEGAL,
EQUITABLE, VESTED, CONTINGENT, GENERAL, SPECIFIC, RESIDUAL,
CONDITIONAL, EXECUTORY, OR OTHERWISE."  RESPONDENT, ON THE OTHER HAND,
URGES THAT THE PHRASE "AT THE TIME OF SUCH ACQUISITION," WHEN IT WAS
INCLUDED IN THE 1934 ACT, HAD ACQUIRED BY CONSTRUCTION A DEFINITE
MEANING WHICH EXCLUDED CONTINGENT REMAINDERS, AND THEREFORE THAT
CONGRESS MUST BE PRESUMED TO HAVE USED THOSE WORDS IN THAT SENSE.  IN
THAT CONNECTION HE POINTS OUT THAT THE PHRASE "AT THE TIME OF SUCH
ACQUISITION" HAD APPEARED IN THE 1921, 1924, AND 1926 ACTS  FN2  AND
THAT CERTAIN OFFICE DECISIONS OF THE TREASURY,  FN3  AND CERTAIN
DECISIONS OF THE LOWER FEDERAL COURTS  FN4  UNDER THOSE ACTS, MADE
PRIOR TO THE ENACTMENT OF THE 1934 ACT, HAD HELD THAT A BENEFICIARY DID
NOT ACQUIRE PROPERTY WHEN HIS INTEREST WAS MERELY CONTINGENT. 
RESPONDENT EMPHASIZES THAT THE LEGISLATIVE HISTORY OF THE 1934 ACT
SHOWS NO MENTION OF THE PRIOR ADMINISTRATIVE AND JUDICIAL TREATMENT OF
CONTINGENT REMAINDERS AND MAKES NO COMPLAINT WITH THE PRACTICE OF THE
BUREAU OR WITH THE DECISIONS.  HE INSISTS THAT THE WORDS "ACQUIRED" OR
"ACQUISITION" ARE NOT VAGUE OR AMBIGUOUS WORDS BUT MEAN TO OBTAIN "AS
ONE'S OWN," AS HELD IN HELVERING V. SAN JOAQUIN FRUIT & INVESTMENT CO.,
297 U.S. 496, 499.  BY THESE ARGUMENTS AND RELATED ONES, RESPONDENT
SEEKS TO DEMONSTRATE THAT THE EARLIER RULE HAD BECOME EMBEDDED IN THE
LAW SO THAT IT COULD BE CHANGED NOT BY ADMINISTRATIVE RULES OR
REGULATIONS BUT BY CONGRESS ALONE.  ON THE BASIS OF SUCH REASONING AND
THE DIFFERENCE IN WORDING BETWEEN THE 1934 ACT AND THE 1928 AND 1932
ACTS, HE SEEKS TO DISTINGUISH THE MAGUIRE, GAMBRILL, AND CAMPBELL
CASES.  AND SINCE ART. 113(A)(5)-1(B) WAS PROMULGATED ON FEBRUARY 11,
1935, RESPONDENT INSISTS THAT TO MAKE IT APPLICABLE TO TRANSACTIONS
OCCURRING IN 1934 WOULD BE TO GIVE IT A RETROACTIVE EFFECT CONTRARY TO
HELVERING V. R.J. REYNOLDS TOBACCO CO., 306 U.S. 110. 

RESPONDENT'S POSITION IS NOT TENABLE.  WE ARE NOT DEALING HERE WITH A
SITUATION WHERE THE MEANING OF STATUTORY LANGUAGE IS RESOLVED BY
REFERENCE TO EXPLICIT STATEMENTS OF CONGRESSIONAL PURPOSE.  MAGUIRE V.
COMMISSIONER, SUPRA; HELVERING V. CAMPBELL, SUPRA.  HERE, THE COMMITTEE
REPORTS  FN5  ON THE 1934 ACT ARE WHOLLY SILENT AS TO WHETHER A
TAXPAYER HAS ACQUIRED PROPERTY WITHIN THE MEANING OF SEC. 113(A)(5) AT
A TIME WHEN HE HAS OBTAINED ONLY A CONTINGENT REMAINDER INTEREST.  AND
WE NEED NOT STOP TO INQUIRE WHETHER, IN ABSENCE OF THE TREASURY
REGULATIONS UNDER THE 1934 ACT, THE ADMINISTRATIVE CONSTRUCTION OF
"ACQUISITION" UNDER THE EARLIER ACTS WAS OF SUCH A CHARACTER (HIGGINS
V. COMMISSIONER, 312 U.S. 212) AND THE PRIOR JUDICIAL DECISIONS HAD
SUCH CONSISTENCY AND UNIFORMITY THAT CONGRESSIONAL REENACTMENT OF THE
LANGUAGE IN QUESTION WAS AN ADOPTION OF ITS PREVIOUS INTERPRETATION,
WITHIN THE RULE OF SUCH CASES AS UNITED STATES V. DAKOTA-MONTANA OIL
CO., 288 U.S. 459.  THAT RULE IS NO MORE THAN AN AID IN STATUTORY
CONSTRUCTION.  WHILE IT IS USEFUL AT TIMES IN RESOLVING STATUTORY
AMBIGUITIES, IT DOES NOT MEAN THAT THE PRIOR CONSTRUCTION HAS BECOME SO
EMBEDDED IN THE LAW THAT ONLY CONGRESS CAN EFFECT A CHANGE.  MORRISSEY
V. COMMISSIONER, 296 U.S. 344, 355.  AND SEE MURPHY OIL CO. V. BURNET,
287 U.S. 299.  IT GIVES WAY BEFORE CHANGES IN THE PRIOR RULE OR
PRACTICE THROUGH EXERCISE BY THE ADMINISTRATIVE AGENCY OF ITS
CONTINUING RULE-MAKING POWER.  HELVERING V. WILSHIRE OIL CO., 308 U.S.
90, 100-101.  NOR IS ART. 113(A)(5)-1(B) OF THE REGULATIONS CONDEMNED
BY HELVERING V. R.J. REYNOLDS TOBACCO CO., SUPRA.  THAT CASE TURNED ON
ITS OWN SPECIAL FACTS.  THE TRANSACTIONS THERE IN QUESTION TOOK PLACE
AT A TIME WHEN A REGULATION WAS IN FORCE WHICH EXPRESSLY NEGATIVED ANY
TAX LIABILITY.  THE REGULATION REMAINED OUTSTANDING FOR A LONG TIME AND
WAS FOLLOWED BY SEVERAL REENACTMENTS OF THE STATUTE.  ABOUT FIVE YEARS
AFTER THE TRANSACTIONS IN QUESTION TOOK PLACE, THE PRIOR REGULATION WAS
AMENDED SO AS TO IMPOSE A TAX LIABILITY.  THERE ARE NO SUCH
CIRCUMSTANCES HERE.  NO RELEVANT REGULATION WAS IN FORCE AT THE TIME
RESPONDENT SOLD THE SECURITIES IN 1934.  THE REGULATION HERE IN
QUESTION WAS PROMULGATED UNDER THE VERY ACT WHICH DETERMINES
RESPONDENT'S LIABILITY.  THE FACT THAT THE REGULATION WAS NOT
PROMULGATED UNTIL AFTER THE TRANSACTIONS IN QUESTION HAD BEEN
CONSUMMATED IS IMMATERIAL.  CF. MANHATTAN GENERAL EQUIPMENT CO. V.
COMMISSIONER, 297 U.S. 129.  THE MAGNITUDE OF THE TASK OF PREPARING
REGULATIONS UNDER A NEW ACT MAY WELL OCCASION SOME DELAY.  TO HOLD THAT
RESPONDENT HAD A VESTED INTEREST IN A HYPOTHETICAL DECISION IN HIS
FAVOR PRIOR TO THE ADVENT OF THE REGULATIONS, WOULD INTRODUCE INTO THE
SCHEME OF THE REVENUE ACTS REFINED NOTIONS OF STATUTORY CONSTRUCTION
WHICH WOULD, TO SAY THE LEAST, IMPAIR AN IMPORTANT ADMINISTRATIVE
RESPONSIBILITY IN THE TAX COLLECTING PROCESS. 

HENCE THE REGULATION GOVERNS THIS CASE IF THE WORD "ACQUISITION" AS
USED IN SEC. 113(A)(5) WAS SUSCEPTIBLE OF THIS ADMINISTRATIVE
INTERPRETATION.  WE THINK IT WAS.  HOWEVER UNAMBIGUOUS THAT WORD MIGHT
BE AS RESPECTS OTHER TRANSACTIONS (HELVERING V. SAN JOAQUIN FRUIT &
INVESTMENT CO., SUPRA), ITS MEANING IN THIS STATUTORY SETTING WAS FAR
FROM CLEAR AS RESPECTS PROPERTY PASSING BY BEQUEST, DEVISE, OR
INHERITANCE.  THE DEFINITION OF "ACQUISITION" CONTAINED IN THE
REGULATION IS NOT A STRAINED OR ARTIFICIAL ONE.  ADMITTEDLY, THE DATE
OF DEATH WOULD BE THE PROPER BASIS IF RESPONDENT'S INTEREST UNDER THE
TESTAMENTARY TRUST HAD BEEN A VESTED REMAINDER.  BUT EVEN A VESTED
REMAINDERMAN DOES NOT HAVE ALL OF THE ATTRIBUTES OF OWNERSHIP.  SO THE
TEST IN THIS TYPE OF CASE IS NOT WHETHER RESPONDENT HAD FULL ENJOYMENT
OF THE PROPERTY PRIOR TO THE DELIVERY OF THE SECURITIES TO HIM, BUT
WHETHER HE EARLIER HAD ACQUIRED AN INTEREST WHICH ULTIMATELY RIPENED
INTO COMPLETE OWNERSHIP.  RESPONDENT HAS BECOME THE TAXPAYER BECAUSE HE
HAS OBTAINED FULL OWNERSHIP OF THE PROPERTY AND HAS SOLD IT. THE TAX IS
ON GAINS, IF ANY, REALIZED BY HIM IN THAT TRANSACTION.  HENCE, AS WE
INDICATED IN THE MAGUIRE AND CAMPBELL CASES, TO CARRY INTO THAT
COMPUTATION THE VALUE OF THE PROPERTY AT THE TIME THE TAXPAYER HAD ONLY
A CONTINGENT REMAINDER INTEREST IN IT IS NOT TO TAX HIM ON VALUES WHICH
HE NEVER RECEIVED.  THE STATUTE AS THUS INTERPRETED "MERELY PROVIDES A
RULE OF THUMB IN ALLEVIATION OF A TAX WHICH WOULD BE COMPUTED BY
REFERENCE TO THE ENTIRE AMOUNT OF THE ORIGINAL INHERITANCE WERE IT TO
BE BASED ON COST TO THE TAXPAYER."  HELVERING V. CAMPBELL, SUPRA, P.
22.  AS STATED BY JUDGE ARANT IN AUGUSTUS V. COMMISSIONER, 118 F.2D 38,
43, THE REGULATION WAS AN "APT INTERPRETATION TO MAKE THIS PART OF THE
STATUTE FIT EFFICIENTLY AND CONSISTENTLY INTO THE SCHEME OF THE REVENUE
SYSTEM AS A WHOLE."  SEE MAGUIRE V. COMMISSIONER, SUPRA. 

RESPONDENT'S SUGGESTION THAT THE REGULATION DOES NOT COVER THIS CASE
WILL NOT STAND ANALYSIS.  IT HAS A BROAD SWEEP AND EMBRACES ALL
INTERESTS WHICH HAVE THEIR ORIGIN IN A BEQUEST, DEVISE, OR
INHERITANCE. 

FOR THE REASONS STATED, THE PROPER BASIS AS TO THE SECURITIES OWNED
BY THE DECEDENT WAS THEIR VALUE AT HIS DEATH. 

THERE REMAINS THE QUESTION AS TO THE PROPER BASIS FOR SECURITIES
PURCHASED BY THE TRUSTEE.  IN THE MAGUIRE CASE WE HELD THAT "COST" WAS
THE PROPER BASIS AS PROVIDED IN SEC. 113(A) OF THE 1928 ACT, SINCE
SECURITIES PURCHASED BY A TRUSTEE WERE NOT "ACQUIRED  ...  BY WILL"
WITHIN THE MEANING OF SEC. 113(A)(5) OF THAT ACT.  WHILE SEC. 113(A)(5)
OF THE 1934 ACT SUBSTITUTES "ACQUIRED BY BEQUEST, DEVISE, OR
INHERITANCE" FOR "ACQUIRED EITHER BY WILL OR INTESTACY" IN THE 1928
ACT, THAT CHANGE DOES NOT CALL FOR A RESULT DIFFERENT FROM THAT REACHED
IN THE MAGUIRE CASE.  FOR THE REASONS THERE STATED, WE HOLD THAT AS
RESPECTS SECURITIES PURCHASED BY THE TRUSTEE THE PROPER BASIS IS THE
COST TO HIM.  THAT MAKES IT UNNECESSARY TO EXAMINE THE VALIDITY OF THE
HOLDING OF THE COURT BELOW THAT ART. 113(A)(5)-1(D) OF THE REGULATIONS
FN6  IS INAPPLICABLE BECAUSE DECEDENT DID NOT DIE BEFORE MARCH 1,
1913.  REVERSED. 

FN1  OPPOSED TO THE DECISION BELOW ARE VAN VRANKEN V. HELVERING, 115
F.2D 709; CARY V. HELVERING, 116 F.2D 800; ARCHBOLD V. HELVERING, 115
F.2D 1005 - ALL FROM THE SECOND CIRCUIT; AND AUGUSTUS V. COMMISSIONER,
118 F.2D 38, FROM THE SIXTH CIRCUIT. 

FN2  SEC. 202(A)(3), REVENUE ACT OF 1921(42 STAT. 229); SEC.
204(A)(5), REVENUE ACT OF 1924(43 STAT. 258); SEC. 204(A)(5), REVENUE
ACT OF 1926(44 STAT. 14). 

FN3  O.D. 727, 3 COM. BULL.  53(1920); G.C.M. 10260, XI-1 CUM. BULL. 
79, 80(1932). 

FN4  SEE, FOR EXAMPLE, PRINGLE V. COMMISSIONER, 64 F.2D 863; HOPKINS
V. COMMISSIONER, 69 F.2D 11.  CF. LANE V. CORWIN, 63 F.2D 767. 

FN5  H. REP. NO. 704, 73D CONG., 2D SESS., PP. 27-28; S. REP. NO.
558, 73D CONG., 2D SESS., PP. 34-35. 

FN6  "PROPERTY ACQUIRED BEFORE MARCH 1, 1913; REINVESTMENTS BY
FIDUCIARY.  - IF THE DECEDENT DIED BEFORE MARCH 1, 1913, THE FAIR
MARKET VALUE ON THAT DATE IS TAKEN IN LIEU OF THE FAIR MARKET VALUE ON
THE DATE OF DEATH, BUT ONLY TO THE SAME EXTENT AND FOR THE SAME
PURPOSES AS THE FAIR MARKET VALUE ON MARCH 1, 1913, IS TAKEN UNDER

"IF THE PROPERTY IS AN INVESTMENT BY THE FIDUCIARY UNDER A WILL (AS,
FOR EXAMPLE, IN THE CASE OF A SALE BY A FIDUCIARY UNDER A WILL OF
PROPERTY TRANSMITTED FROM THE DECEDENT, AND THE REINVESTMENT OF THE
PROCEEDS), THE COST OR OTHER BASIS TO THE FIDUCIARY IS TAKEN IN LIEU OF
THE FAIR MARKET VALUE AT THE TIME WHEN THE DECEDENT DIED." 

MR. JUSTICE ROBERTS: 

I DISAGREED WITH THE DECISIONS OF THE COURT IN MAGUIRE V.
COMMISSIONER, ANTE, P. 1, HELVERING V. GAMBRILL, ANTE, P. 11, AND
HELVERING V. CAMPBELL, ANTE, P. 15, CONSTRUING THE MEANING OF THE
PHRASE "TIME OF DISTRIBUTION TO THE TAXPAYER," AS USED IN SEC. 113A(5)
OF THE REVENUE ACTS OF 1928 AND 1932.  MY DISSENT WAS BOTTOMED UPON THE
VIEW THAT TO CONSTRUE THAT PHRASE AS MEANING THE TIME OF THE
DISTRIBUTION TO A TRUSTEE, IN A CASE WHERE THE TAXPAYER COULD NEITHER
RECEIVE NOR ENJOY THE PROPERTY, WAS TO DISREGARD THE UNAMBIGUOUS WORDS
OF THE STATUTE.  I RECOGNIZE THE BINDING FORCE OF THOSE DECISIONS BUT
THINK THAT THE COURT'S DISPOSITION OF THE PRESENT CASES CONSTITUTES AN
EVEN LOOSER AND LESS ADMISSIBLE CONSTRUCTION, AMOUNTING, IN EFFECT, TO
LEGISLATION. 

IN ALL THE REVENUE ACTS FROM THAT OF 1921 TO THAT OF 1926, INCLUSIVE,
THE COGNATE PROVISION WAS THAT IF THE PROPERTY WAS ACQUIRED BY BEQUEST,
DEVISE, OR INHERITANCE, OR BY THE DECEDENT'S ESTATE FROM THE DECEDENT,
THE BASIS SHOULD BE THE FAIR MARKET VALUE OF SUCH PROPERTY AT THE TIME
OF SUCH ACQUISITION.  IN THE REVENUE ACT OF 1928 A NEW PROVISION WAS
SUBSTITUTED MAKING THE BASIS IN THE CASE OF A GENERAL OR A SPECIFIC
DEVISE OR OF INTESTACY THE FAIR MARKET VALUE AT THE TIME OF THE DEATH
OF THE DECEDENT.  THE SAME BASIS WAS PROVIDED IF PROPERTY WAS ACQUIRED
BY THE DECEDENT'S ESTATE FROM THE DECEDENT.  IN ALL OTHER CASES, IF THE
PROPERTY WAS ACQUIRED BY WILL OR BY INTESTACY, THE BASIS WAS MADE VALUE
AT THE TIME OF THE DISTRIBUTION TO THE TAXPAYER.  THE LANGUAGE WAS
RETAINED IN THE ACT OF 1932.  IN THE REVENUE ACT OF 1934, SEC. 113A(5)
WAS AGAIN CAST IN THE EXACT LANGUAGE IN WHICH THE COGNATE SECTIONS HAD
APPEARED IN ALL THE ACTS PRIOR TO THAT OF 1928.    THE MEANING OF THE
PROVISION IS PLAIN.  WHAT CONGRESS WAS DEALING WITH WAS THE
"PROPERTY."  IT DID NOT SPECIFY A RIGHT INCHOATE OR OTHERWISE, OR AN
INTEREST LESS THAN OWNERSHIP, BUT USED THE COLLOQUIAL TERM "PROPERTY." 
AND CONGRESS EMPLOYED A WORD IN COMMON AND ORDINARY USE, AND NOT A
TECHNICAL EXPRESSION OF CONVEYANCERS, WHEN IT SPOKE OF THE TIME OF
"ACQUISITION" OF THE PROPERTY.  ANYONE READING THE SENTENCE WOULD BE
JUSTIFIED IN CONCLUDING THAT IF HE SOLD PROPERTY WHICH CAME TO HIM FROM
A DECEDENT'S ESTATE HE MUST TAKE AS HIS BASIS OF VALUE THE MARKET VALUE
AS OF THE DATE WHEN HE BECAME THE OWNER OF THE PROPERTY; WHEN HE BECAME
ABLE TO ENJOY IT AND DISPOSE OF IT AT HIS WILL. 

THE PRESENT DECISION FINDS THAT CONGRESS DID NOT INTEND ANY SUCH
THING; THAT, ON THE CONTRARY, BY A CIRCUMLOCUTION, IT MEANT THAT THE
TAXPAYER MUST TAKE AS HIS BASIS THE FAIR VALUE AT THE DATE OF THE
DECEDENT'S DEATH IF HIS ULTIMATE ACQUISITION OF THE PROPERTY IS
TRACEABLE TO A DECEDENT'S WILL.  THUS, THOUGH HE HAD NO USE OR BENEFIT
OF THE PROPERTY, COULD NOT DISPOSE OF IT, AND MIGHT NEVER ENJOY IT, HE
IS TO BE TREATED AS HAVING ACQUIRED IT. 

A CONTRARY CONCLUSION IS REQUIRED BY HELVERING V. SAN JOAQUIN FRUIT &
INVESTMENT CO., 297 U.S. 496.  THERE THE COURT, IN APPLYING THE SAME
ART; AND THOUGH THE ACQUISITION HAD ITS ORIGIN IN AN OPTION WHICH THE
TAXPAYER EXERCISED, AS HERE THE ACQUISITION HAD ITS ORIGIN IN A WILL,
AGREED WITH THE GOVERNMENT'S CONTENTION THAT THE TIME OF FULL ENJOYMENT
AS ONE'S OWN IS THE DATE OF ACQUISITION, NOT THE TIME OF OBTAINING SOME
INCHOATE INTEREST WHICH MAY OR MAY NOT RIPEN INTO OWNERSHIP. 

BUT IF THERE WERE DOUBT AS TO THE MEANING OF CONGRESS, THE
LEGISLATIVE HISTORY SHOULD PRECLUDE THE STRAINED CONSTRUCTION NOW
ADOPTED.  IN THE MAGUIRE AND RELATED CASES, ADMINISTRATIVE CONSTRUCTION
AND LEGISLATIVE HISTORY WERE MEAGRE AND INCONCLUSIVE.  HERE, VIOLENCE
MUST BE DONE TO A SUBSTANTIAL VOLUME OF SUCH AIDS TO CONSTRUCTION TO
REACH THE ANNOUNCED RESULT. 

IN 1920 THE TREASURY RULED THAT 

"WHERE IN A BEQUEST OF PROPERTY THE REMAINDERMEN HAVE ONLY A
CONTINGENT INTEREST PRIOR TO THE DEATH OF THE LIFE TENANT, THE BASIS
FOR DETERMINING GAIN OR LOSS FROM A SALE OF SUCH PROPERTY BY THE
REMAINDERMEN IS ITS VALUE AS OF THE DATE OF DEATH OF THE LIFE TENANT." 
FN1 

THERE IS NO DISPUTE THAT BETWEEN 1920 AND 1935 THE TREASURY UNIFORMLY
SO INTERPRETED THE STATUTORY PROVISION NOW OTHERWISE CONSTRUED.  IN
1930 THIS COURT HELD THAT IN THE CASE OF A RESIDUARY LEGATEE WHOSE
PROPERTY RIGHTS ATTACHED AT THE MOMENT OF DEATH, AND WHO WAS IN
CONTEMPLATION OF LAW AND IN FACT THE OWNER OF THE PROPERTY BEQUEATHED
TO HIM FROM THE DATE OF DEATH, THE TIME OF ACQUISITION WAS THE DATE OF
DEATH.  FN2  THE DECISION OBVIOUSLY DID NOT TOUCH A SITUATION SUCH AS
THAT DISCLOSED IN THE PRESENT CASES AND THE TREASURY SO UNDERSTOOD.  IN
1932 THE GENERAL COUNSEL OF THE BUREAU OF INTERNAL REVENUE RENDERED AN
EXHAUSTIVE OPINION IN WHICH HE REFERRED TO, AND ANALYZED, OUR DECISION
AND SUMMARIZED THE ADMINISTRATIVE PRACTICE BY SAYING: 

"...  THE POSITION OF THIS OFFICE HAS BEEN THAT ONE WHO HAS A MERE
CONTINGENT INTEREST DOES NOT 'ACQUIRE' THE PROPERTY IN QUESTION UNTIL
HIS INTEREST BECOMES VESTED.  (O.D. 727, C.B. 3, 53; S.M. 4640, C.B. V
1, 60.)  SEE ALSO I.T. 1622, C.B.II-1, 135; S.O. 35, C.B. 3, 50."  THE
JUDICIAL CONSTRUCTION WAS UNIFORM TO THE SAME EFFECT.  FN3 

THAT THE TREASURY THOUGHT THE DISTINCTION BETWEEN THE ACQUISITION
DATE OF VESTED AND CONTINGENT INTERESTS IMPROPER IS ATTESTED BY THE
FACT THAT IN ITS BRIEFS ON APPLICATIONS FOR CERTIORARI IN SEVERAL OF
THE CASES CITED IN NOTE 4 IT SO STATED; AND IN THE PRINGLE CASE IT
STRENUOUSLY CONTENDED FOR A REVERSAL OF THE JUDGMENT ON THAT GROUND. 
IN ITS BRIEF IN THE SAN JOAQUIN CASE, SUPRA, WHICH AROSE UNDER THE VERY
RECOGNIZED THAT THE HOLDER OF A CONTINGENT ESTATE IN PROPERTY DOES NOT
ACQUIRE THE SAME WITHIN THE MEANING OF THE REVENUE ACTS UNTIL THE
ESTATE BECOMES VESTED."  (CITING SEVERAL OF THE CASES FOUND IN THE
NOTE.)  OF COURSE THAT STATEMENT SUPPORTED THE POSITION OF THE
GOVERNMENT IN THAT CASE.  BUT A NEW VIEW HAS APPARENTLY EMERGED, WHICH
BETTER SERVES THE GOVERNMENT'S INTEREST HERE. 

IT SEEMS PLAIN THAT WHEN, IN 1934, CONGRESS DECIDED TO RE-ADOPT THE
LANGUAGE USED IN THE REVENUE ACTS FROM 1921 TO 1926, INCLUSIVE, IT
SHOULD BE TAKEN AS HAVING ADOPTED IT NOT ONLY WITH A SENSE OF ITS PLAIN
MEANING BUT WITH A RECOGNITION OF ITS UNIFORM INTERPRETATION.  WE ARE
NOT LEFT, HOWEVER, WITHOUT LIGHT SHED BY THE LEGISLATIVE HISTORY, AND
THAT HISTORY FURNISHES CONFIRMATION OF THE VIEW THAT CONGRESS DID NOT
INTEND TO GIVE ANY STRAINED, EXTRAORDINARY, OR UNUSUAL MEANING TO ITS
LANGUAGE OR TO DISREGARD ITS ACCEPTED SIGNIFICANCE. 

THE REVENUE ACTS HAVE ALWAYS TREATED ESTATES AS TAXPAYERS FOR
PURPOSES OF INCOME TAX.  FROM THE ADOPTION OF THE REVENUE ACT OF 1918
THE TREASURY REGULATIONS UNIFORMLY PROVIDED THAT IF AN EXECUTOR SOLD
ESTATE PROPERTY HE MUST TAKE AS A BASIS THE VALUE OF THE PROPERTY AT
THE TIME OF THE DECEDENT'S DEATH FOR CALCULATING TAXABLE GAIN.  FN4
THE TREASURY TREATED THE ESTATE'S TIME OF ACQUISITION AS THE DATE OF
THE DECEDENT'S DEATH WITHIN THE MEANING OF THE SECTIONS OF THE REVENUE
ACTS FROM 1921 TO 1926.  IN 1926 THE COURT OF CLAIMS HELD THAT WHEN
CONGRESS USED THE TERMS "ACQUIRED" AND "ACQUISITION" IT MEANT THAT THE
EXECUTOR MIGHT TAKE, AS THE BASIS DATE, THE DATE OF ACQUISITION BY THE
DECEDENT.  FN5  THIS DECISION UPSET THE UNIFORM PRACTICE OF THE
TREASURY AND REQUIRED AN AMENDMENT OF THE REGULATIONS TO CONFORM TO IT.
CONGRESS WAS CONFRONTED WITH THIS SITUATION WHEN IT CAME TO PASS THE
REVENUE ACT OF 1928.  THE HISTORY OF WHAT HAPPENED IN THIS RESPECT IS
MOST ENLIGHTENING.  THE JOINT COMMITTEE ON INTERNAL REVENUE, IN ITS
REPORT,  FN6 REFERRED TO THE DIFFICULTY CREATED BY THE MCKINNEY
DECISION, AND THE DOUBT THE DECISION HAD THROWN ON THE MEANING OF
ACQUISITION, AND STATED, WITH RESPECT TO THE PROPOSED SECTION:  "THE
'DATE OF DEATH' IS RECOMMENDED TO MAKE THE BASIS CERTAIN AND
DEFINITE."  THE WAYS AND MEANS COMMITTEE ALSO RENDERED A REPORT TO
ACCOMPANY THAT OF THE JOINT COMMITTEE.  IN THIS IT SAID:"  FN7  IT IS
BELIEVED THAT THE BASIS SHOULD BE THE VALUE OF THE PROPERTY ON THE DATE
OF THE DECEDENT'S DEATH, AND THIS RULE IS INCORPORATED IN SECTION
113(A)(5)."  IT CONTINUED:  "IT IS ALSO PROVIDED, IN THE SAME
PARAGRAPH, THAT THE BASIS IN CASE OF A SALE BY A BENEFICIARY SHALL BE
THE VALUE OF THE PROPERTY ON THE DATE OF THE DECEDENT'S DEATH." 

IT IS THUS ABUNDANTLY CLEAR THAT CONGRESS KNEW HOW TO WRITE A STATUTE
TO ACCOMPLISH WHAT THE OPINION OF THE COURT HOLDS TOTALLY DIFFERENT
LANGUAGE ACCOMPLISHES. 

THE SENATE COMMITTEE ON FINANCE REWROTE THE SUBSECTION AS EMBODIED IN
THE HOUSE BILL, ALTERING IT TO READ AS IT DOES IN THE REVENUE ACT OF
1928.  FN8  THIS WAS THE SECTION WHICH WAS CONSTRUED IN MAGUIRE V.
COMMISSIONER AND RELATED CASES.  FN9  IT THUS APPEARS THAT CONGRESS
REJECTED THE VERBIAGE INTENDED TO SPECIFY THE DATE OF THE DECEDENT'S
DEATH AS THE BASIS DATE TO BE TAKEN BY A BENEFICIARY UNDER THE
DECEDENT'S WILL. 

WITH THIS BACKGROUND, CONGRESS, IN ADOPTING THE 1934 ACT, DISCARDED
THE VARIOUS BASIS DATES PRESCRIBED BY THE ACTS OF 1928 AND 1932 AND
HARKED BACK TO THE LANGUAGE WHICH HAD BEEN USED IN EARLIER REVENUE
ACTS, WHICH HAD UNIFORMLY BEEN CONSTRUED BY THE TREASURY TO MEAN THAT
THE BASIS DATE WAS THE DATE WHEN THE TAXPAYER ACTUALLY ACQUIRED AS HIS
OWN THE PROPERTY WHOSE DISPOSITION GAVE RISE TO A TAXABLE GAIN OR A
DEDUCTIBLE LOSS.  THE REASON FOR THE CHANGE, AS SHOWN BY THE COMMITTEE
REPORTS ON THE REVENUE ACT OF 1934, WAS NOT A DESIRE TO ALTER THE
SETTLED ADMINISTRATIVE CONSTRUCTION OF THE PHRASE "TIME OF ACQUISITION"
BUT TO DO AWAY WITH THE DIVERSITY BETWEEN THE BASIS DATES FOR REAL AND
PERSONAL PROPERTY WHICH HAD BEEN CREATED BY THE PROVISIONS OF THE 1928
AND THE 1932 ACTS.  NO OTHER PURPOSE IS SHOWN BY THE REPORTS.  FN10 

REGULATIONS 86 WERE APPROVED BY THE SECRETARY OF THE TREASURY
FEBRUARY 11, 1935, AND WERE LATER PROMULGATED AS APPLICABLE TO THE ACT
OF 1934.  BY THESE REGULATIONS IT IS PROVIDED:  "PURSUANT TO THIS RULE
OF LAW, (I.E. THE DOCTRINE OF RELATION) SECTION 113(A)(5) PRESCRIBES A
SINGLE UNIFORM BASIS RULE APPLICABLE TO ALL PROPERTY PASSING FROM A
DECEDENT BY WILL OR UNDER THE LAW GOVERNING THE DESCENT AND
DISTRIBUTION OF THE PROPERTY OF DECEDENTS.  ACCORDINGLY, THE TIME OF
ACQUISITION OF SUCH PROPERTY IS THE DEATH OF THE DECEDENT, AND ITS
BASIS IS THE FAIR MARKET VALUE AT THE TIME OF THE DECEDENT'S DEATH,
REGARDLESS OF THE TIME WHEN THE TAXPAYER COMES INTO POSSESSION AND
ENJOYMENT OF THE PROPERTY."  IT IS UPON THIS REGULATION THAT THE COURT
RELIES TO JUSTIFY ITS CONSTRUCTION OF THE STATUTE. 

I THINK THE REGULATION PLAINLY UNJUSTIFIED, AS AN ATTEMPT ON THE PART
OF THE TREASURY TO LEGISLATE WHEN CONGRESS HAS FAILED TO DO SO.  THE
HEARINGS ON THE REVENUE ACT OF 1934 SHOW THAT THE TREASURY WAS NOT
SATISFIED WITH THE PROVISION THE COMMITTEE RECOMMENDED CONGRESS SHOULD
ADOPT AND WHICH CONGRESS DID ADOPT.  IT EVIDENTLY ATTEMPTED TO REWRITE
THE CONGRESSIONAL LANGUAGE TO CARRY OUT WHAT IT THOUGHT CONGRESS SHOULD
HAVE PROVIDED.  IT NEEDS NO CITATION OF AUTHORITY TO DEMONSTRATE THAT
SUCH IS NOT THE FUNCTION OF A REGULATION AND THAT THE ATTEMPT SHOULD
FAIL. 

FN1  O.D. 727, 3 C.B. 53. 

FN2  BREWSTER V. GAGE, 280 U.S. 327. 

FN3  LANE V. CORWIN, 63 F.2D 767; PRINGLE V. COMMISSIONER, 64 F.2D
863; HOPKINS V. COMMISSIONER, 69 F.2D 11; BECKER V. ANCHOR REALTY &
INVESTMENT CO., 3 F.SUPP.  22, AFF'D 71 F.2D 355; WARNER V.
COMMISSIONER, 72 F.2D 225; BEERS V. COMMISSIONER, 78 F.2D 447. 

FN4  SEE HARTLEY V. COMMISSIONER, 295 U.S. 216, 220. 

FN5  MCKINNEY V. UNITED STATES, 62 CT. CLS. 180. 

FN6  HOUSE DOCUMENT NO. 139, 70TH CONG., 1ST SESS., PP. 17-18. 

FN7  H.R. NO. 2, 70TH CONG., 1ST SESS., P. 18. 

FN8  SENATE REPORT NO. 960, 70TH CONG., 1ST SESS., P. 26. 

FN9 FOR THE LANGUAGE OF THE SECTION SEE NOTE 5, MAGUIRE V.
COMMISSIONER, ANTE, P. 3. 

FN10  REPORT OF SUBCOMMITTEE ON WAYS AND MEANS OF DECEMBER 4, 1933,
P. 17; REPORT OF THE WAYS AND MEANS COMMITTEE H.R. 704, 73D CONG., 2D
SESS., PP. 27-28; SENATE REPORT NO. 558, 73D CONG.2D SESS., PP. 34-35. 

THE CHIEF JUSTICE JOINS IN THIS OPINION. 
..END :





















CARY V. COMMISSIONER, 313 U.S. 441 


NO. 734.  ARGUED MAY 1, 1941.  - DECIDED MAY 26, 1941.  - 116 F.2D 800,
AFFIRMED. 


DECIDED UPON THE AUTHORITY OF HELVERING V. REYNOLDS, ANTE, P. 428.  P.
443. 

CARY V. COMMISSIONER OF INTERNAL REVENUE.* 

*TOGETHER WITH NO. 735, FLAGLER V. COMMISSIONER OF INTERNAL REVENUE;
NO. 736, ESTATE OF FLAGLER V. COMMISSIONER OF INTERNAL REVENUE; AND NO.
737, MATTHEWS V. COMMISSIONER OF INTERNAL REVENUE, ALSO ON WRITS OF
CERTIORARI, 312 U.S. 675, 676, TO THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 312 U.S. 675, TO REVIEW JUDGMENTS WHICH AFFIRMED
DECISIONS OF THE BOARD OF TAX APPEALS SUSTAINING INCOME TAX
ASSESSMENTS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

HENRY M. FLAGLER DIED ON MAY 20, 1913.  PETITIONERS ARE LEGATEES
UNDER A TESTAMENTARY TRUST CREATED UNDER HIS WILL.  THE TRUST CONTINUED
FOR A PERIOD OF TEN YEARS FROM HIS DEATH AND TERMINATED ON MAY 20,
1923.  AS OF THAT TIME, THE TRUSTEES DELIVERED TO PETITIONERS  FN1
CERTAIN SECURITIES WHICH WERE SOLD BY THEM IN 1934 AND 1936.  THE
QUESTION PRESENTED IS WHETHER THE BASIS FOR COMPUTING GAIN OR LOSS ON
SUCH SALES UNDER SEC. 113(A)(5) OF THE REVENUE ACTS OF 1934(48 STAT.
680) AND 1936  FN2  (49 STAT. 1648) IS THE VALUE OF THE SECURITIES WHEN
DELIVERED TO THE LEGATEES, OR THEIR VALUE ON THE DATE OF DEATH OF THE
DECEDENT.  PETITIONERS MAKE SUBSTANTIALLY THE SAME ARGUMENT FOR
APPLICATION OF THE FORMER CRITERION AS DID RESPONDENT IN HELVERING V.
REYNOLDS, ANTE, P. 428.  AND THEY CONTEND THAT UNDER FLORIDA LAW THEY
HAD AT THE DATE OF DEATH ONLY CONTINGENT INTERESTS.  BUT ASSUMING THEY
ARE CORRECT IN THE LATTER CONTENTION, IT IS OF NO AVAIL.  FOR THE
REASONS STATED IN HELVERING V. REYNOLDS, SUPRA, THE PROPER BASIS WAS
THE VALUE OF THE SECURITIES AT THE DEATH OF THE DECEDENT.  ACCORDINGLY,
THE JUDGMENTS OF THE COURT BELOW (116 F.2D 800) MUST BE AFFIRMED. 

FN1  SOME SECURITIES HAD PREVIOUSLY BEEN DELIVERED TO HARRY HARKNESS
FLAGLER, PETITIONER IN NO. 735, ON APRIL 26, 1921.  ANNIE L. FLAGLER,
WHOSE ESTATE IS THE PETITIONER IN NO. 736, RECEIVED THE SECURITIES HERE
INVOLVED AS A GIFT FROM HER HUSBAND, HARRY HARKNESS FLAGLER.  THE
SITUATION THEREFORE IS THE SAME AS TO BOTH THESE PARTIES SINCE IT IS
STIPULATED THAT HE HAD RECEIVED THE SECURITIES AS INDICATED ABOVE. 

FN2  SEC. 113(A)(5) OF THE 1936 ACT IS THE SAME AS SEC. 113(A)(5) OF
THE 1934 ACT.  ART. 113(A)(5)-1 OF TREASURY REGULATIONS 94, PROMULGATED
UNDER THE 1936 ACT, CONTAINS PROVISIONS IDENTICAL WITH THOSE OF ART.
113(A)(5)-1 OF REGULATIONS 86 UNDER THE 1934 ACT.  THE RELEVANT
PORTIONS OF THAT SECTION AND REGULATION UNDER THE 1934 ACT ARE SET
FORTH IN HELVERING V. REYNOLDS, ANTE, P. 428. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS DISSENT FOR THE REASONS
STATED IN THEIR DISSENT IN HELVERING V. REYNOLDS, ANTE, P. 435. 
..END :















U.S. V. A.S. KREIDER CO., 313 U.S. 443 


NO. 853.  ARGUED MAY 7, 1941.  - DECIDED MAY 26, 1941.  - 117 F.2D 133,
REVERSED. 


1.  SECTION 24(20) OF THE JUDICIAL CODE, WHICH GIVES THE DISTRICT
COURTS JURISDICTION CONCURRENT WITH THE COURT OF CLAIMS OVER CERTAIN
SUITS AGAINST THE UNITED STATES, PROVIDES THAT NO SUIT SHALL BE ALLOWED
THEREUNDER UNLESS THE SAME SHALL HAVE BEEN BROUGHT WITHIN SIX YEARS
AFTER THE RIGHT ACCRUED FOR WHICH THE CLAIM IS MADE.  HELD, THAT THE
SIX-YEARS PERIOD IS AN OUTSIDE LIMIT CONSISTENT WITH THE FIVE-YEARS
LIMIT ON SUITS FOR THE RECOVERY OF INTERNAL REVENUE TAXES SET BY SEC.
1113(A) OF THE REVENUE ACT OF 1926, AMENDING R.S. SEC. 3226.  P. 446. 

2.  IN RESPONSE TO A CLAIM OF TAX REFUND, THE COMMISSIONER OF
INTERNAL REVENUE FOUND AN OVERPAYMENT IN THE AMOUNT CLAIMED AND SENT
THE TAXPAYER A CERTIFICATE OF OVERASSESSMENT IN THAT AMOUNT BEARING
NOTATION THAT A STATED PART OF IT WAS BARRED BY LIMITATIONS AND
ENCLOSED A CHECK FOR THE DIFFERENCE, WHICH THE TAXPAYER ACCEPTED. 
HELD, THAT THERE WAS NO ACCOUNT STATED UPON WHICH THE TAXPAYER COULD
GROUND AN ACTION FOR THE PART NOT REPAID AND THUS AVOID THE FIVE-YEARS
LIMITATION OF SEC. 1113(A) OF THE REVENUE ACT OF 1926 ON SUITS TO
RECOVER INTERNAL REVENUE TAXES.  BONWIT TELLER & CO. V. UNITED STATES,
283 U.S. 258, DISTINGUISHED.  P. 448. 

3.  TO ESTABLISH AN ACCOUNT STATED THERE MUST BE A BALANCE STRUCK IN
SUCH CIRCUMSTANCES AS TO IMPORT A PROMISE OF PAYMENT ON THE ONE SIDE
AND OF ACCEPTANCE ON THE OTHER.  P. 448. 

UNITED STATES V. A.S. KREIDER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 552, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
SUSTAINING A CLAIM FOR A REFUND OF TAXES.  SEE 97 F.2D 387; 30 F.SUPP. 
722. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN 1921, RESPONDENT FILED ITS INCOME TAX RETURN FOR 1920, DISCLOSING
TAX LIABILITY OF $52,481.97, WHICH IT PAID IN FULL.  THEREAFTER, AND
PRIOR TO JUNE 15, 1926, IT EXECUTED A WAIVER EXTENDING UNTIL DECEMBER
31, 1926, THE TIME FOR AUDIT AND POSSIBLE ADDITIONAL ASSESSMENT OF
TAXES.  ON JULY 26, 1926, RESPONDENT PAID A DEFICIENCY ASSESSMENT OF
$1,362.50.  ALMOST THREE YEARS LATER, ON MARCH 23, 1929, RESPONDENT
FILED A CLAIM FOR REFUND OF $53,844.47, THE ENTIRE AMOUNT OF TAXES PAID
FOR 1920. 

THE COMMISSIONER FOUND THAT RESPONDENT HAD OVERPAID ITS 1920 TAXES IN
THE SUM OF $14,833.68.  IN OCTOBER, 1929, HE SENT RESPONDENT A
CERTIFICATE OF OVERASSESSMENT WHICH NOTED THAT THERE HAD BEEN AN
OVERPAYMENT IN THAT AMOUNT BUT THAT $13,471.18 WAS "BARRED BY STATUTE
OF LIMITATIONS."  ACCOMPANYING THE CERTIFICATE WAS A CHECK FOR THE
DIFFERENCE, $1,362.50, WHICH RESPONDENT APPARENTLY ACCEPTED.  IN THUS
COMPUTING THE REFUND OWING TO RESPONDENT, THE COMMISSIONER ASSUMED THAT
SUBSECTIONS (B)(1), (B)(2), AND (G) OF SEC. 284  FN1  OF THE REVENUE
ACT OF 1926(44 STAT. 9, 66, 67) AUTHORIZED HIM TO REMIT ONLY THAT PART
OF THE 1920 TAX WHICH WAS PAID IN 1926. 

ON MARCH 7, 1932, RESPONDENT BROUGHT THE PRESENT ACTION IN A UNITED
STATES DISTRICT COURT TO RECOVER THE SUM WITHHELD.  AT THE CLOSE OF THE
TRIAL, PETITIONER MOVED FOR JUDGMENT ON THE GROUND THAT THE ACTION WAS
BARRED BY SEC. 1113(A) OF THE REVENUE ACT OF 1926(44 STAT. 9, 116). 
THE DISTRICT COURT GRANTED THE MOTION AND ENTERED JUDGMENT FOR
PETITIONER.  30 F.SUPP.  722.  THE CIRCUIT COURT OF APPEALS REVERSED,
ONE JUDGE DISSENTING, HOLDING THAT THE GENERAL SIX-YEAR LIMITATION IN
SEC. 24(20) OF THE JUDICIAL CODE (28 U.S.C. SEC. 41(20)) RATHER THAN
THE LIMITATIONS IN SEC. 1113(A) DETERMINED THE TIMELINESS OF
RESPONDENT'S ACTION.  97 F.2D 387. 

THE CAUSE WAS RETURNED TO THE DISTRICT COURT.  OVER THE RENEWED
CONTENTION OF PETITIONER THAT THE ACTION WAS BARRED BY SEC. 1113(A),
THE DISTRICT COURT PROCEEDED TO THE MERITS.  IT HELD, IN EFFECT, THAT
SEC. 284(B)(2) DID NOT LIMIT THE REFUND SANCTIONED BY SEC. 284(G) TO
THE PORTION OF THE TAX PAID WITHIN FOUR YEARS OF RESPONDENT'S CLAIM,
AND ENTERED JUDGMENT AS PRAYED IN THE COMPLAINT.  30 F.SUPP.  724.  THE
CIRCUIT COURT OF APPEALS AFFIRMED, ACCEPTING AS THE LAW OF THE CASE ITS
EARLIER DECISION THAT THE ACTION WAS TIMELY, DESPITE PETITIONER'S
ARGUMENT TO THE CONTRARY.  117 F.2D 133.  ON APRIL 14, 1941, WE GRANTED
CERTIORARI. 

RELYING PRINCIPALLY ON BONWIT TELLER & CO. V. UNITED STATES, 283 U.S.
258, RESPONDENT MAINTAINS THAT ITS ACTION WAS COMMENCED WELL WITHIN THE
APPLICABLE PERIOD OF LIMITATION.  FURTHER, RESPONDENT CONTENDS THAT
BOTH COURTS BELOW CORRECTLY REFUSED TO REGARD SEC. 284(B)(2) AS A
LIMITATION ON THE COMMISSIONER'S DUTY TO MAKE REFUNDS UNDER SEC.
284(G).  WE FIND IT UNNECESSARY TO EXAMINE THE LATTER CONTENTION, FOR
WE ARE OF OPINION THAT RESPONDENT SUED TOO LATE. 

INSOFAR AS MATERIAL HERE, SEC. 1113(A) PROVIDES:  "...  NO (SUIT OR
PROCEEDING FOR THE RECOVERY OF ANY INTERNAL-REVENUE TAX ALLEGED TO HAVE
BEEN ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED) SHALL BE BEGUN
...  AFTER THE EXPIRATION OF FIVE YEARS FROM THE DATE OF THE PAYMENT OF
SUCH TAX ...  UNLESS SUCH SUIT OR PROCEEDING IS BEGUN WITHIN TWO YEARS
AFTER THE DISALLOWANCE OF THE PART OF SUCH CLAIM TO WHICH SUCH SUIT OR
PROCEEDING RELATES." 

UNDOUBTEDLY, RESPONDENT HAS FAILED TO BEGIN ITS ACTION WITHIN EITHER
OF THE PERIODS SPECIFIED IN SEC. 1113(A).  SEE UNITED STATES V. A.S.
KREIDER CO., 97 F.2D 387, 388.  THE SUIT WAS NOT INSTITUTED UNTIL MARCH
7, 1932, ALTHOUGH THE LAST TAX PAYMENT WAS MADE ON JULY 26, 1926, AND
THE CLAIM FOR REFUND WAS DISALLOWED IN OCTOBER, 1929.  FN2  BUT AS
ALREADY STATED, THE COURT BELOW HELD THAT THE ACTION WAS NOT BARRED
BECAUSE THE TUCKER ACT (24 STAT. 505), LATER INCORPORATED IN SEC.
24(20) OF THE JUDICIAL CODE, RATHER THAN SEC. 1113(A) PRESCRIBED THE
PERIOD WITHIN WHICH RESPONDENT WAS BOUND TO BRING SUIT.  WE VIEW THE
STATUTES DIFFERENTLY. 

THE COURT OF CLAIMS OF CERTAIN SUITS AGAINST THE UNITED STATES.  TO
EQUATE THE RIGHT THUS CONFERRED TO THE EXISTING RIGHT TO SUE IN THE
COURT OF CLAIMS (SEE 28 U.S.C. SEC. 262), THE STATUTE PROVIDES:  "NO
SUIT AGAINST THE GOVERNMENT OF THE UNITED STATES SHALL BE ALLOWED UNDER
THIS PARAGRAPH UNLESS THE SAME SHALL HAVE BEEN BROUGHT WITHIN SIX YEARS
AFTER THE RIGHT ACCRUED FOR WHICH THE CLAIM IS MADE." 

WE THINK THE QUOTED LANGUAGE WAS INTENDED MERELY TO PLACE AN OUTSIDE
LIMIT ON THE PERIOD WITHIN WHICH ALL SUITS MIGHT BE INITIATED UNDER
SEC. 24(20).  CLEARLY, NOTHING IN THAT LANGUAGE PRECLUDES THE
APPLICATION OF A DIFFERENT AND SHORTER PERIOD OF LIMITATION TO AN
INDIVIDUAL CLASS OF ACTIONS EVEN THOUGH THEY ARE BROUGHT UNDER SEC.
24(20).  PHRASING THE CONDITION NEGATIVELY, CONGRESS LEFT IT OPEN TO
PROVIDE LESS LIBERALLY FOR PARTICULAR ACTIONS WHICH, BECAUSE OF SPECIAL
CONSIDERATIONS, REQUIRED DIFFERENT TREATMENT.  SEE CHRISTIE-STREET
COMMISSION CO. V. UNITED STATES, 136 F. 326, 332-333. 

THAT SUITS AGAINST THE UNITED STATES FOR THE RECOVERY OF TAXES IMPEDED
EFFECTIVE ADMINISTRATION OF THE REVENUE LAWS, CONGRESS ALLOWED ONLY
FIVE YEARS FROM PAYMENT OF THE TAX FOR THE COMMENCEMENT OF SUCH
ACTIONS, UNLESS SPECIFIED CIRCUMSTANCES EXTENDED THE PERIOD.  THAT THIS
SPECIFIC PROVISION IS ENTIRELY CONSISTENT WITH THE GENERAL PROVISION IN
SEC. 24(20) IS PLAIN.  INDEED, THE LIMITATION IN SEC. 1113(A) HAS NO
MEANING WHATEVER UNLESS THE LIMITATION IN SEC. 24(20) IS CONSTRUED NOT
TO GOVERN PROCEEDINGS FOR THE RECOVERY OF "INTERNAL-REVENUE TAX ALLEGED
TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED."  FN3 

BONWIT TELLER & CO. V. UNITED STATES, SUPRA, DOES NOT REMOVE THE BAR
OF SEC. 1113(A) HERE.  THERE WE HELD UNDER THE PECULIAR FACTS DISCLOSED
THAT THE TAXPAYER COULD EVADE THE LIMITATIONS OF THAT SECTION BY
GROUNDING ITS ACTION ON A SUBSEQUENT "ACCOUNT STATED" RATHER THAN ON
THE ORIGINAL, WRONGFUL OVERASSESSMENT.  BUT THE INSTANT CASE IS PLAINLY
DISTINGUISHABLE, FOR, ASSUMING THAT FAMILIAR DOCTRINES OF CONTRACTS
FURNISH THE TEST (DAUBE V. UNITED STATES, 289 U.S. 367, 370), WE ARE
UNABLE TO FIND THE REQUISITES OF AN ACCOUNT STATED IN THE TRANSACTIONS
ON WHICH RESPONDENT RELIES. 

TO ESTABLISH AN ACCOUNT STATED, RESPONDENT MUST SHOW THAT A BALANCE
WAS STRUCK "IN SUCH CIRCUMSTANCES AS TO IMPORT A PROMISE OF PAYMENT ON
THE ONE SIDE AND ACCEPTANCE ON THE OTHER."  R.H. STEARNS CO. V. UNITED
STATES, 291 U.S. 54, 65; SEE ALSO, TOLAND V. SPRAGUE, 12 PET. 300, 325;
NUTT V. UNITED STATES, 125 U.S. 650.  BUT PLAINLY, "NO SUCH PROMISE IS
A JUST OR REASONABLE INFERENCE FROM THE CERTIFICATE OF OVERASSESSMENT
DELIVERED TO THIS TAXPAYER, IF THE CERTIFICATE IS INTERPRETED IN THE
SETTING OF THE OCCASION."  R.H. STEARNS CO. V. UNITED STATES, SUPRA.
IN FACT, A CONTRARY INFERENCE IS THE ONLY LEGITIMATE SUPPOSITION
RESPONDENT COULD MAKE.  AT MOST, RESPONDENT COULD ASSUME THAT THE
UNITED STATES PROMISED TO PAY $1,362.50; THE CHECK WAS THERE IN
FULFILLMENT.  OBVIOUSLY, REFUSAL TO REFUND THE BALANCE DID NOT AND
COULD NOT IMPLY A PROMISE TO PAY THE AMOUNT WITHHELD. 

ACCEPTANCE BY RESPONDENT, ANOTHER ESSENTIAL OF AN ACCOUNT STATED, IS
EQUALLY LACKING.  BY ACCEPTING THE CHECK FOR $1,362.50 RESPONDENT
AGREED ONLY TO A PARTIAL ACCOUNT STATED (COMPARE STURM V. BOKER, 150
U.S. 312, 340), THEREBY CONVERTING THAT MUCH OF THE STATEMENT INTO AN
ACCOUNT SETTLED.  THE INSTITUTION OF THIS SUIT IS AMPLE PROOF THAT
RESPONDENT NEVER INTENDED TO ACCEPT THE CERTIFICATE IN ITS ENTIRETY AS
A CORRECT COMPUTATION OF THE AMOUNT WHICH IT CLAIMED WAS DUE. 

WE CONCLUDE THAT RESPONDENT'S SUIT IS BARRED BY THE LIMITATIONS OF
SEC. 1113(A).  THE JUDGMENT IS REVERSED, AND THE CAUSE IS REMANDED WITH
DIRECTIONS TO DISMISS THE PETITION.  REVERSED. 

FN1  SEC. 284.  (A)  WHERE THERE HAS BEEN AN OVERPAYMENT OF ANY
INCOME, WAR-PROFITS, OR EXCESS-PROFITS TAX IMPOSED (BY SPECIFIED ACTS),
THE AMOUNT OF SUCH OVERPAYMENT SHALL (SUBJECT TO ENUMERATED CONDITIONS)
BE REFUNDED IMMEDIATELY TO THE TAXPAYER. 

(B)  EXCEPT AS PROVIDED IN SUBDIVISIONS  ...  (G) OF THIS SECTION - 

(1)  NO SUCH CREDIT OR REFUND SHALL BE ALLOWED OR MADE AFTER  ...
FOUR YEARS FROM THE TIME THE TAX WAS PAID IN THE CASE OF A TAX IMPOSED
BY ANY PRIOR ACT, UNLESS BEFORE THE EXPIRATION OF SUCH PERIOD A CLAIM
THEREFOR IS FILED BY THE TAXPAYER; AND 

(2)  THE AMOUNT OF THE CREDIT OR REFUND SHALL NOT EXCEED THE PORTION
OF THE TAX PAID DURING THE ...  FOUR YEARS  ...  IMMEDIATELY PRECEDING
THE FILING OF THE CLAIM.  ... 

(G)  ...  IF THE TAXPAYER HAS, ON OR BEFORE JUNE 15, 1926, FILED SUCH
A WAIVER IN RESPECT OF THE TAXES DUE FOR THE TAXABLE YEAR 1920 OR 1921,
THEN SUCH CREDIT OR REFUND RELATING TO THE TAXES FOR THE TAXABLE YEAR
1920 OR 1921 SHALL BE ALLOWED OR MADE IF CLAIM THEREFOR IS FILED EITHER
ON OR BEFORE APRIL 1, 1927, OR WITHIN FOUR YEARS FROM THE TIME THE TAX
WAS PAID.  ... 

FN2  IT SHOULD BE NOTED THAT THIS ACTION SEEKS RECOVERY OF MONEY
WHICH WAS PAID IN 1921.  WE ASSUME, SO FAR AS THIS DECISION IS
CONCERNED, THAT THE PHRASE "SUCH TAX" IN THE QUOTED LANGUAGE REFERS TO
THE TOTAL TAX FOR THE YEAR IN QUESTION WHENEVER DETERMINED AND
ASSESSED; OR STATED DIFFERENTLY, THAT "PAYMENT" WITHIN THE MEANING OF
THIS STATUTE DOES NOT OCCUR UNTIL THE ENTIRE TAX FOR 1920 IS PAID,
INCLUDING DEFICIENCY ASSESSMENTS MADE SEVERAL YEARS LATER.  COMPARE
UNION TRUST CO. V. UNITED STATES, 70 F.2D 629. 

WE ASSUME ALSO THAT THE COMMISSIONER'S REFUSAL IN 1929 TO MAKE THE
REFUND WAS A "DISALLOWANCE" OF RESPONDENT'S CLAIM.  COMPARE BONWIT
TELLER & CO. V. UNITED STATES, 283 U.S. 258, 265, WITH UNITED STATES V.
BERTELSEN & PETERSEN ENGINEERING CO., 306 U.S. 276, 280. 

FN3  APPARENTLY THE APPLICABILITY OF A SPECIFIC LIMITATION INSTEAD OF
THE GENERAL TUCKER ACT LIMITATION HAS NOT BEEN CHALLENGED FOR 35
YEARS.  SEE CHRISTIE-STREET COMMISSION CO. V. UNITED STATES, 136 F.
326.  THE SPECIFIC LIMITATION HAS BEEN ASSUMED TO APPLY IN NUMEROUS
CASES.  SEE, E.G., UNITED STATES V. BERTELSEN & PETERSEN ENGINEERING
CO., 306 U.S. 276; BATES MFG. CO. V. UNITED STATES, 303 U.S. 567; R.H.
STEARNS CO. V. UNITED STATES, 291 U.S. 54; DAUBE V. UNITED STATES, 289
U.S. 367. 
..END :









DETROLA CORP. V. HAZELTINE CORP., 313 U.S. 259 


NO. 666.  ARGUED APRIL 7, 1941.  - DECIDED MAY 12, 1941.  - 117 F.2D
238, REVERSED. 


WHEELER REISSUE PATENT, NO. 19,744, CLAIMS 1-7, INCLUSIVE, AND 9-13,
INCLUSIVE, RELATING TO AMPLIFIERS IN MODULATED CURRENT-CARRYING
SIGNALING SYSTEMS, WHEREIN THE LIMIT OF AMPLIFICATION IS AUTOMATICALLY
MAINTAINED SUBSTANTIALLY AT A PREDETERMINED LEVEL, - HELD INVALID FOR
WANT OF INVENTION OVER THE PRIOR ART. P. 268. 

THE ALLEGED INVENTION, AS UPHELD BY THE COURT BELOW, WAS OF IMPROVED
MEANS FOR OBTAINING AUTOMATIC AMPLIFICATION CONTROL BY THE COMBINATION
IN A RADIO RECEIVER OF A DIODE DETECTOR WITH A HIGH RESISTANCE
CONNECTED BETWEEN THE ANODE OF THE DETECTOR AND THE CATHODE OF THE
AMPLIFYING TUBE, AND A DIRECT CONNECTION BETWEEN THE ANODE OF THE
DETECTOR AND THE GRID OF THE AMPLIFIER FOR IMPRESSING NEGATIVE
POTENTIAL UPON THE LATTER, THUS OBTAINING FROM THE SIGNAL VOLTAGE A SO
CALLED LINEAR RESPONSE TO THE VARIATIONS IN THE AMPLITUDE OF THE SIGNAL
CURRENT. 

WHEELER ACCOMPLISHED AN OLD RESULT BY A COMBINATION OF MEANS WHICH,
SINGLY OR IN SIMILAR COMBINATION, WERE DISCLOSED BY THE PRIOR ART, AND
NOTWITHSTANDING THE FACT THAT HE WAS IGNORANT OF THE PENDING
APPLICATIONS WHICH ANTEDATED HIS CLAIMED DATE OF INVENTION AND
EVENTUATED INTO PATENTS, HE WAS NOT IN FACT THE FIRST INVENTOR, SINCE
HIS ADVANCE OVER THE PRIOR ART, IF ANY, REQUIRED ONLY THE EXERCISE OF
THE SKILL OF THE ART. 

DETROLA RADIO & TELEVISION CORP. V. HAZELTINE CORPORATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 312 U.S. 671, TO REVIEW A DECREE WHICH AFFIRMED THE
DISTRICT COURT IN UPHOLDING A PATENT, ENJOINING INFRINGEMENT, AND
RETAINING JURISDICTION TO TAKE AN ACCOUNT OF PROFITS, ASSESS DAMAGES,
ETC. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

JULY 7, 1927, HAROLD A. WHEELER APPLIED FOR A PATENT FOR A CIRCUIT
DESIGNED AUTOMATICALLY TO CONTROL THE AMPLITUDE OF AMPLIFIED SIGNAL
VOLTAGE IN MODULATED CARRIER-CURRENT SIGNALLING SYSTEMS.  PATENT NO.
1,879,863 ISSUED SEPTEMBER 27, 1932, TO THE RESPONDENT AS ASSIGNEE OF
WHEELER. 

A SUIT WAS BROUGHT IN THE EASTERN DISTRICT OF NEW YORK FOR
INFRINGEMENT OF CLAIMS 1, 5, 6, AND 10.  FN1  THE DISTRICT COURT HELD
THE CLAIMS INVALID FOR WANT OF INVENTION.  THE CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT AFFIRMED THE DECREE.  FN2 

SEPTEMBER 26, 1934, WHILE THE APPEAL TO THE CIRCUIT COURT OF APPEALS
WAS PENDING, RESPONDENT APPLIED FOR A REISSUE.  AFTER THE DECISION OF
THE CIRCUIT COURT OF APPEALS, RESPONDENT REDRAFTED THE CLAIMS AND,
OCTOBER 29, 1935, A REISSUE PATENT, NO. 19,744, WAS GRANTED.  THE
PRESENT SUIT WAS THEREAFTER INSTITUTED AGAINST THE PETITIONER FOR
INFRINGEMENT OF ALL THE THIRTEEN CLAIMS OF THE REISSUE EXCEPT CLAIM 8*
.  THE DISTRICT COURT HELD THE PATENT VALID AND INFRINGED, AND ITS
DECREE WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  FN3  THE PETITION
FOR CERTIORARI PRESENTED, INTER ALIA, THE QUESTION WHETHER THE DECISION
CONFLICTS WITH THAT OF THE SECOND CIRCUIT. 

*AS AMENDED BY ORDER OF OCTOBER 13, 1941, SEE 314 U.S. - REPORTER. 

CONTROL OF THE AMPLIFICATION OF A MODULATED CARRIERWAVE SIGNAL IS
USEFUL IN CONNECTION WITH TRANSMITTING AND RECEIVING APPARATUS AND, IN
THE ORIGINAL PATENT, WHEELER CLAIMED HIS SYSTEM AS RESPECTS BOTH.  IN
HIS SPECIFICATIONS, HOWEVER, HE CONFINED HIMSELF TO ITS APPLICATION TO
RECEIVERS, WHEREIN ITS FUNCTION IS TO CONTROL THE VOLUME OF SOUND
EMITTED FROM THE LOUD SPEAKER.  IN BROADCASTING, A HIGH FREQUENCY WAVE,
KNOWN AS A CARRIER WAVE, IS IMPRESSED WITH ANOTHER LOW FREQUENCY WAVE
OR, AS IT IS SAID, MODULATED.  THE HIGH FREQUENCY, OR SIGNAL, WAVE IS
PICKED UP BY THE ANTENNA OF A RECEIVER AND CONDUCTED THENCE TO THE
INPUT OF AN AMPLIFYING DEVICE WHICH CONSISTS OF AN AMPLIFIER TUBE, OR
SEVERAL OF THEM IN SERIES.  THESE TUBES HAVE THREE ELECTRODES, A
CATHODE, AN ANODE, AND A GRID, AND ARE CALLED TRIODES.  THE SIGNAL
WAVE, AS AMPLIFIED, IS CARRIED FROM THE OUTPUT OF THE AMPLIFYING DEVICE
TO THE INPUT OF A VACUUM TUBE, KNOWN AS A DETECTOR OR RECTIFIER, WHICH
TRANSMUTES THE ALTERNATING CURRENT INTO A UNIDIRECTIONAL OR DIRECT
PULSATING CURRENT.  THIS IS LED TO AUDIO TUBES WHICH ENHANCE ITS
VOLUME, AND THENCE TO A LOUD SPEAKER.  SUCH A RECEIVING SET HAS OTHER
EQUIPMENT FOR SELECTING SIGNALS OF VARYING FREQUENCY AND ADJUSTING THE
AMPLIFICATION OF THE AUDIO WAVES, WITH WHICH WE NEED NOT CONCERN
OURSELVES. 

ONE OF THE PROBLEMS OF THE ART HAS ARISEN FROM VARIATIONS OF THE
RECEIVED SIGNALS.  WHEN THE SET IS TUNED FROM A WEAK SIGNAL TO A MUCH
STRONGER ONE, THE TENDENCY IS FOR POTENTIAL TO BUILD UP IN THE LAST
AMPLIFYING TUBE, WHICH RESULTS IN WHAT IS KNOWN AS BLASTING IN THE LOUD
SPEAKER.  OFTEN THE SAME SIGNAL VARIES IN INTENSITY.  WEAKENING MAY
RESULT IN FADING, WHEREBY THE SOUND PRODUCTION WEAKENS OR DISAPPEARS;
AND STRENGTHENING MAY BEGET DISTORTION OF THE SOUNDS EMITTED. 

WHEELER ESSAYED TO OBVIATE THESE OBJECTIONABLE FEATURES.  IT WAS
KNOWN THAT THE AMPLIFICATION OF THE CARRIER SIGNAL COULD BE CONTROLLED
BY INCREASING OR DECREASING THE POTENTIAL UPON THE GRID OF A TRIODE
AMPLIFIER.  WHEELER PROPOSED AUTOMATICALLY TO VARY THIS POTENTIAL SO AS
TO INCREASE OR DECREASE THE DEGREE OF AMPLIFICATION AND THUS HOLD IT AT
A SUBSTANTIALLY PREDETERMINED LEVEL.  TO THIS END HE PROVIDED MEANS TO
INCREASE THE NEGATIVE POTENTIAL UPON THE ANODE OF THE DETECTOR TUBE IN
STEP WITH THE INCREASED STRENGTH OF THE SIGNAL AND TO CONDUCT A DIRECT
CURRENT FROM THAT ANODE TO THE GRID ELECTRODE OF ONE OR MORE OF THE
AMPLIFYING TUBES.  THUS AN INCREASE OF THE STRENGTH OF THE SIGNAL WOULD
AUTOMATICALLY INCREASE THE NEGATIVE POTENTIAL ON THE GRID OF THE
AMPLIFIER AND DECREASE THE AMPLIFICATION; THE REVERSE RESULT WOULD BE
EFFECTED IF THE SIGNAL WEAKENED.  THE MEANS HE ADOPTED TO ACCOMPLISH
THIS WERE ALTERNATIVE. 

ACCORDING TO ONE METHOD, THE SIGNAL WAS AMPLIFIED TO A COMPARATIVELY
HIGH VOLTAGE, AND A DIODE USED AS A DETECTOR.  THE OUTPUT VOLTAGE FROM
THE DETECTOR WAS APPROXIMATELY AS GREAT AS THAT OF THE AMPLIFIED
SIGNAL.  BY COUPLING THE CATHODE AND ANODE OF THE DETECTOR AND
INSERTING A RESISTANCE IN THE COUPLING HE COULD MAINTAIN THE ANODE OF
THE DETECTOR SLIGHTLY NEGATIVE AT ALL TIMES.  SINCE HE CONNECTED ALL
THE CATHODES IN PARALLEL THE CATHODE OF THE DETECTOR WAS MAINTAINED AT
SUBSTANTIALLY THE SAME POTENTIAL AS THE CATHODE OF THE RADIO FREQUENCY
AMPLIFIER.  BY THIS MEANS, THE ANODE OF THE DETECTOR COULD BE
MAINTAINED NORMALLY NEGATIVE RELATIVE TO AT LEAST A PART OF THE
AMPLIFIER CATHODE.  WHEN THE RECTIFIED CURRENT FLOWING THROUGH THE
DETECTOR CIRCUIT INCREASED WITH THE STRENGTH OF THE SIGNAL, THERE WAS
DEVELOPED AT THE OUTPUT TERMINAL OF THE DETECTOR CIRCUIT, THROUGH THE
OPERATION OF THE RESISTANCE, WHICH WAS ALSO CONNECTED BETWEEN THE ANODE
OF THE DETECTOR AND THE GRID OF THE AMPLIFIER, AN INCREASE OF NEGATIVE
VOLTAGE WHICH, THROUGH THE DIRECT CURRENT CONNECTION FROM THE TERMINAL
OF THE DETECTOR CIRCUIT TO THE GRID OF THE AMPLIFIER, INCREASED THE
NEGATIVE POTENTIAL THEREOF, AND LESSENED THE SIGNAL AMPLIFICATION. 
CONVERSELY, IF THE STRENGTH OF THE SIGNAL CURRENT DECREASED, THE
NEGATIVE POTENTIAL DEVELOPED UPON THE ANODE OF THE DETECTOR
CORRESPONDINGLY DECREASED AND THERE WAS A DECREASED INHIBITION OF THE
AMPLIFYING POWER OF THE SIGNAL AMPLIFIER. 

IN HIS ALTERNATIVE METHOD, HE ACCOMPLISHED THE SAME RESULT WITH A
TRIODE DETECTOR.  IN THIS ARRANGEMENT HE MAINTAINED A NEGATIVE VOLTAGE
ON THE GRID OF THE DETECTOR TRIODE BY THE USE OF A BATTERY AND A
POTENTIOMETER CONNECTED ACROSS THE CATHODE OF THE DETECTOR TUBE.  THE
OUTPUT CIRCUIT OF THE DETECTOR INCLUDED A RESISTANCE CONNECTED BETWEEN
THE ANODE OF THE DETECTOR AND THE COMMON "B" BATTERY OF A RADIO SET.  A
DIRECT CONNECTION WAS PROVIDED FROM THE OUTPUT TERMINAL OF THIS CIRCUIT
TO THE GRID OF THE SIGNAL AMPLIFIER FOR IMPRESSING THEREON THE
POTENTIAL DEVELOPED ON THE ANODE OF THE DETECTOR.  THE AMPLIFIED SIGNAL
VOLTAGE OPERATED TO BRING INTO PLAY THE VOLTAGE OF THE BATTERY WHICH
CREATED THE POTENTIAL ON THE ANODE OF THE DETECTOR. 

ACCORDING TO THE SPECIFICATIONS, EACH ARRANGEMENT HAD ADVANTAGES AND
DISADVANTAGES.  THE DIODE DETECTOR USED IN THE FIRST FURNISHED NO
AMPLIFICATION BUT IT DISPENSED WITH THE NECESSITY OF AN ADDITIONAL
BATTERY OR SOURCE OF CURRENT SUPPLY.  THE SECOND NOT ONLY REQUIRED AN
ADDITIONAL BATTERY BUT AN ADJUSTMENT BETWEEN THE VOLTAGE DELIVERED BY
THE TWO BATTERIES WHICH COOPERATE TO VARY THE NEGATIVE POTENTIAL ON THE
ANODE OF THE TRIODE DETECTOR. 

BOTH ARRANGEMENTS INCLUDE DEVICES TO PREVENT THE PASSAGE FROM THE
DETECTOR TO THE AUDIO TUBES, AND FROM THE DETECTOR TO THE GRID OF THE
AMPLIFIER TUBES, OF UNDESIRED FORMS OF ELECTRICAL ENERGY AND BOTH
EMBRACE MEANS TO PROVIDE A TIME CONSTANT WITH RESPECT TO THE
TRANSMISSION OF NEGATIVE POTENTIAL FROM THE ANODE OF THE DETECTOR TO
THE GRID OF THE AMPLIFIER.  NONE OF THESE ARE NOW ASSERTED TO BE NOVEL
OR TO CONSTITUTE A PART OF THE ASSERTED INVENTION. 

IN WHEELER'S DRAWINGS AND SPECIFICATIONS HE EXHIBITED BOTH METHODS
AND SAID OF THEM THAT THEY OPERATE "SUBSTANTIALLY IN THE SAME MANNER,"
AND AGAIN THAT THEY ARE "SUBSTANTIALLY SIMILAR IN OPERATION."  IN HIS
APPLICATION HE PRESENTED CLAIMS WHICH DID NOT SPECIFY THE KIND OF
DETECTOR TO BE USED, AND OTHERS CALLING FOR A DIODE.  ALL OF THE LATTER
WERE DISALLOWED AND HE CONCURRED IN THEIR CANCELLATION WITHOUT
PREJUDICE.  HE HAD ASSERTED IN PROSECUTING HIS APPLICATION THAT "THE
INVENTION CAN OBVIOUSLY BE USED WITH ANY KIND OF DETECTOR."  NINE
CLAIMS WERE FINALLY ALLOWED.  JUST BEFORE THE PATENT ISSUED, AND NEARLY
FIVE YEARS AFTER ORIGINAL APPLICATION, WHEELER PRESENTED A NUMBER OF
ADDITIONAL CLAIMS.  IN TWO HE DESCRIBED THE DETECTOR AS A DIODE AND IN
ONE OF THESE HE DENOMINATED THE RESISTANCE CONNECTED BETWEEN THE
DETECTOR ANODE AND THE AMPLIFIER CATHODE AS A "HIGH RESISTANCE."  HE
ASSERTED THAT THESE TWO CLAIMS WERE "PRACTICALLY THE SAME AS ALLOWED
CLAIM 11," WHICH BECAME CLAIM 1 OF THE PATENT AS ISSUED AND SPECIFIED
NO PARTICULAR FORM OF DETECTOR TUBE AND NO HIGH RESISTANCE.  THEY WERE
ALLOWED AS CLAIMS 10 AND 11 OF THE PATENT AS ISSUED. 

IN THE ABRAMS SUIT ONLY CLAIMS 1, 5, 6 AND 10 WERE IN ISSUE.  THE
CONTENTION WAS THAT THE INVENTION WAS A BROAD ONE COVERING THE
PRINCIPLE OF AUTOMATIC VOLUME CONTROL BY MEANS OF ANY FORM OF CIRCUIT. 
THE DEFENDANT INSISTED THAT THE PATENT INVOLVED NO INVENTION IN VIEW OF
THE PRIOR ART AND CITED PATENTS ISSUED BEFORE WHEELER'S DATE OF
CONCEPTION N4 AND OTHERS ISSUED BEFORE THE PATENT IN SUIT ON
APPLICATIONS ANTEDATING HIS DATE OF INVENTION AND PENDING WHEN HIS
APPLICATION WAS FILED.  FN5 

SOME OF THESE WERE FOR TRANSMISSION SYSTEMS AND SOME FOR RECEIVING
SYSTEMS.  SEVERAL DISCLOSED AUTOMATIC AMPLIFICATION CONTROL.  ALL
CONSTITUTED PRIOR ART. FN6  HAZELTINE ATTEMPTED TO DISTINGUISH THEM
FROM THE WHEELER PATENT IN THREE RESPECTS.  IT CONTENDED THAT WHEELER'S
PATENT WAS LIMITED TO THE RECEIVING ART AND THAT PRIOR INVENTIONS
ADDRESSED TO AUTOMATIC AMPLIFICATION CONTROL IN TRANSMISSION DID NOT
CONSTITUTE ANTICIPATION.  THE DISTRICT COURT ANSWERED THAT WHEELER'S
PATENT WAS NOT LIMITED BUT WAS FOR ANY MODULATED WAVE CARRIER
SIGNALLING SYSTEM.  HAZELTINE ALSO INSISTED THAT SOME OF THE PRIOR ART
DEALT WITH AMPLIFICATION CONTROL IN AMPLIFIERS BEYOND THE DETECTOR
RATHER THAN IN THOSE THROUGH WHICH THE CONTROLLED CURRENT PASSED BEFORE
IT REACHED THE DETECTOR, AS IN WHEELER.  THE DISTRICT COURT WAS UNABLE
TO FIND ANY SUCH DISTINCTION FROM THE PRIOR ART IN THE WHEELER CLAIMS. 
FINALLY, HAZELTINE URGED THAT THE TIME CONSTANT DEVICE WAS NOT FOUND IN
THE PRIOR ART CITED.  THE DISTRICT COURT HELD THAT, IF ANY OF THESE
ALLEGED DIFFERENCES CONSTITUTED INVENTION ON WHEELER'S PART THE CLAIMS
DID NOT DISCLOSE THEM, AND THAT TO SUSTAIN HAZELTINE'S CONTENTION WOULD
BE TO REWRITE THE CLAIMS. 

THE CIRCUIT COURT OF APPEALS TOOK A MORE LIBERAL VIEW OF THE WHEELER
PATENT AS EVIDENCED BY THE CLAIMS IN CONNECTION WITH THE
SPECIFICATIONS.  IT ASSUMED, FOR THE PURPOSES OF DECISION, THAT
WHEELER'S PATENT WAS LIMITED TO RECEIVERS.  IT RECOGNIZED THE
DIFFERENCE BETWEEN THE FEED OF THE NEGATIVE POTENTIAL BACK TO THE RADIO
FREQUENCY AMPLIFIERS INSTEAD OF FORWARD BUT IT FOUND NO INVENTION IN
THE CHANGE.  IT HELD THERE WAS NO INVENTION IN THE PROVISION OF A TIME
CONSTANT.  THAT COURT, THEREFORE, FOUND THAT ALL WHEELER DID WAS TO
TAKE CERTAIN OBVIOUS STEPS IN AN ALREADY CROWDED ART, WHICH STEPS WERE
BASED UPON VARIOUS DISCLOSURES OF THAT ART, AND THAT THE CHANGES HE
MADE DID NOT AMOUNT TO INVENTION.  BOTH THE DISTRICT COURT AND THE
CIRCUIT COURT OF APPEALS FOUND THAT THE MENTION OF A DIODE DETECTOR IN
CLAIM 10 REPRESENTED NO NEW INVENTIVE ELEMENT SINCE AT LEAST ONE OF THE
PATENTS IN THE PRIOR ART - THAT OF HEISING - DISCLOSED THE USE OF SUCH
A TUBE IN AN AUTOMATIC AMPLIFICATION CONTROL SYSTEM. 

CONFRONTED WITH THESE HOLDINGS, HAZELTINE, AS HAS BEEN STATED,
REWROTE THE SPECIFICATIONS AND CLAIMS IN ITS APPLICATION FOR REISSUE. 
IT ELIMINATED ALL REFERENCE TO THE USE OF A TRIODE DETECTOR IN ITS
DRAWINGS AND SPECIFICATIONS AND LIMITED THEM TO A SYSTEM EMPLOYING A
DIODE.  CERTAIN OF THE CLAIMS OF THE OLD PATENT, HOWEVER, WERE RETAINED
WHICH MAKE NO DISTINCTION BETWEEN A DIODE AND A TRIODE SINCE THEY REFER
MERELY TO A DETECTOR.  HAZELTINE ALSO ALTERED THE SPECIFICATIONS TO
REFER PARTICULARLY TO A DIODE AND A HIGH RESISTANCE.  SUCH A HIGH
RESISTANCE HAD BEEN CLAIMED AS PART OF THE INVENTION IN CLAIM 11 OF THE
ORIGINAL PATENT, WHICH CLAIM WAS NOT IN SUIT IN THE ABRAMS CASE.  THIS
FACT IS SIGNIFICANT FOR, IF THE HIGH RESISTANCE HAD BEEN CONSIDERED
NOVEL OR ESSENTIAL TO THE INVENTION, IT IS HARD TO SEE WHY SUIT WAS NOT
FOUNDED ON CLAIM 11, THE ONLY CLAIM WHICH DISCLOSED IT. 

IT IS EVIDENT THAT HAZELTINE FOUND IT NECESSARY TO ABANDON ITS BROAD
CLAIMS TO A MONOPOLY OF AUTOMATIC VOLUME CONTROL CIRCUITS AND TO LIMIT
THE CLAIMS TO AN ALLEGED IMPROVEMENT IN SUCH CIRCUITS.  THE PETITIONER
INSISTS THAT THE EFFORT IS UNAVAILING FOR THE REASON THAT THE PATENT,
AS DEFINED IN THE REISSUE, FAILS TO DISCLOSE INVENTION IN VIEW OF THE
PRIOR ART. 

AS IS ADMITTED, AUTOMATIC AMPLIFICATION CONTROL WAS OLD IN THE ART
WHEN WHEELER MADE HIS ALLEGED INVENTION.  THE INVENTION MUST THEN
CONSIST IN THE CONCEPTION OF IMPROVED MEANS FOR OBTAINING SUCH
CONTROL.  THE COURTS BELOW HAVE FOUND INVENTION IN THE COMBINATION IN A
RADIO RECEIVER OF A DIODE DETECTOR WITH A HIGH RESISTANCE CONNECTED
BETWEEN THE ANODE OF THE DETECTOR AND THE CATHODE OF THE AMPLIFYING
TUBE AND A DIRECT CONNECTION BETWEEN THE ANODE AND THE GRID OF THE
AMPLIFIER FOR IMPRESSING NEGATIVE POTENTIAL UPON THE LATTER, THUS
OBTAINING FROM THE SIGNAL VOLTAGE A SO-CALLED LINEAR RESPONSE TO THE
VARIATIONS IN THE AMPLITUDE OF THE SIGNAL CURRENT.  THIS COMBINATION,
THEY HELD, WAS SUCH AN ADVANCE IN THE ART AS TO CONSTITUTE INVENTION. 
WE THINK THE DECISION BELOW CONFLICTS WITH THAT IN THE ABRAMS CASE AND
FAILS TO GIVE DUE WEIGHT TO THE DISCLOSURES OF THE PRIOR ART.    THE
CIRCUIT COURT OF APPEALS DISTINGUISHES FROM WHEELER'S CONCEPTION
AUTOMATIC AMPLIFICATION CONTROL USED IN RECEIVERS, SUCH CONTROL USED IN
TRANSMITTERS, SUCH CONTROL USED FOR OTHER PURPOSES THAN VOLUME CONTROL
OF AUDIO WAVES, OR ACCOMPLISHED BY THE USE OF A TRIODE OR BY MEANS
OTHER THAN THOSE WHICH EMPLOY THE SIGNAL CURRENT ITSELF AND ALSO SETS
APART AMPLIFICATION CONTROL WHICH DOES NOT PRODUCE A LINEAR RESPONSE. 

THERE CAN BE NO QUESTION THAT THE PATENTS CITED AS PRIOR ART DISCLOSE
THE ACCOMPLISHMENT OF LINEAR RESPONSE.  THE CURVE EXHIBITED IN
WHEELER'S DRAWINGS TO ILLUSTRATE THE RESULT OF THE USE OF HIS SYSTEM IS
DUPLICATED IN SIMILAR CURVES BY AFFEL AND FRIIS.  IT CANNOT BE CLAIMED,
THEREFORE, THAT WHEELER HAS ACCOMPLISHED A NEW RESULT.  AT MOST HE CAN
HAVE OBTAINED AN OLD RESULT BY NEW MEANS. 

THE PRIOR ART DISCLOSES THAT AUTOMATIC AMPLIFICATION CONTROL IS USEFUL
BOTH IN RECEIVING AND TRANSMITTING DEVICES FOR THE ACCOMPLISHMENT OF
VARIOUS ENDS, INCLUDING VOLUME CONTROL.  WE AGREE WITH THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT THAT THE LIMITATION OF
WHEELER'S CLAIMS TO RECEIVERS OF RADIO SIGNALS WOULD NOT SPELL
INVENTION. 

THE RESPONDENT INSISTS, AND THE COURTS BELOW HELD, THAT THE REISSUE
PATENT IS LIMITED TO CLAIMING A DIODE DETECTOR AND A HIGH RESISTANCE
CONNECTED BETWEEN THE DETECTOR ANODE AND THE AMPLIFIER CATHODE AND A
DIRECT CONNECTION OF ANODE WITH CATHODE.  PASSING THE FACT THAT CLAIMS
2, 3, AND 6 IN SUIT EMBRACE ANY SORT OF DETECTOR WITHOUT LIMITATION,
AND ASSUMING THAT THE REISSUE IS LIMITED AS SUGGESTED, IT REMAINS THAT
PRACTICALLY ALL OF THE PATENTS CITED FROM THE PRIOR ART EMPLOY A
RESISTANCE TO IMPRESS THE REQUIRED POTENTIAL ON THE AMPLIFIER GRID FOR
CONTROLLING AMPLIFICATION AND THAT TWO OF THEM, THOSE OF HEISING AND
SLEPIAN, DISCLOSE THE USE OF A RESISTANCE IN CONNECTION WITH A DIODE. 

THE COURT BELOW DISTINGUISHES HEISING ON THE GROUND THAT HIS PURPOSE
WAS NOT TO CONTROL THE VOLUME OF AUDIO WAVES BUT RATHER TO USE LESS
CURRENT IN THE RADIO FREQUENCY AMPLIFIERS OF A TRANSMITTER.  WE HOLD,
AS DID THE CIRCUIT COURT OF APPEALS OF THE SECOND CIRCUIT, THAT THESE
DISTINCTIONS DO NOT NEGATIVE ANTICIPATION BY HEISING.  WITH RESPECT TO
SLEPIAN, THE COURT BELOW REMARKS THAT HIS DEVICE WAS INTENDED TO
ACCOMPLISH A DIFFERENT END.  THIS IS TRUE FOR HIS OBJECT WAS TO PROVIDE
A RECEIVING SYSTEM WHICH WOULD ADMIT OF AN EXTREMELY HIGH AMPLIFICATION
OF RECEIVED SIGNAL IMPULSES.  BUT THE USE OF AUTOMATIC AMPLIFICATION
CONTROL, WHATEVER THE END IN VIEW, IS THE CRITICAL CONSIDERATION. 

THE COURT BELOW STATES THAT NEITHER HEISING NOR SLEPIAN SUCCEEDED IN
PRODUCING AUTOMATIC AMPLIFICATION CONTROL.  IN THIS THE COURT
OVERLOOKED THE UNCONTRADICTED TESTIMONY OF THE RESPONDENT'S EXPERT, DR.
HAZELTINE, WHO FLATLY TESTIFIED THAT EACH OF THEM DOES PRODUCE IT.  AND
HEISING PRODUCES IT FROM THE SIGNAL CURRENT BY THE USE OF A DIODE
DETECTOR, A "HIGH RESISTANCE" INSERTED BETWEEN THE ANODE THEREOF AND
THE CATHODE OF THE AMPLIFIER AND A DIRECT CURRENT CONNECTION FROM THE
DETECTOR ANODE TO THE AMPLIFIER CATHODE. 

WE THINK THE COURT BELOW WAS IN ERROR IN STATING THAT ALL THE WORKERS
IN THE PRIOR ART OBTAINED THEIR CONTROL POTENTIAL FROM AN ADDITIONAL
BATTERY WHEREAS WHEELER OBTAINED IT FROM SIGNAL ENERGY.  THIS IS NOT
TRUE OF HEISING OR SLEPIAN. 

NOR CAN WHEELER CLAIM NOVELTY, AS THE COURT HELD, IN THE PRODUCTION
OF A LINEAR RESPONSE.  WHILE FRIIS OBTAINED ENERGY FOR THE PRODUCTION
OF POTENTIAL FROM A BATTERY, HE DISCLOSES A RESULTING LINEAR RESPONSE
COMPARABLE TO THAT CLAIMED BY WHEELER.  IF, AS IS NOW ASSERTED, THE
INSERTION OF A HIGH RESISTANCE BETWEEN THE ANODE OF THE DETECTOR AND
THE CATHODE OF THE AMPLIFIER IS AN INTEGRAL PART OF WHEELER'S
CONCEPTION, IT MAY BE NOTED THAT A RESISTANCE TO DEVELOP A POTENTIAL TO
BE CARRIED TO THE AMPLIFIER GRID IS DISCLOSED BY PRIOR INVENTORS,
INCLUDING HEISING, FRIIS, SLEPIAN, AFFEL AND EVANS AND SEVERAL OF THEM
DESCRIBE IT AS WHEELER DOES, NAMELY, A "HIGH RESISTANCE." 

WE CONCLUDE THAT WHEELER ACCOMPLISHED AN OLD RESULT BY A COMBINATION
OF MEANS WHICH, SINGLY OR IN SIMILAR COMBINATION, WERE DISCLOSED BY THE
PRIOR ART AND THAT, NOTWITHSTANDING THE FACT HE WAS IGNORANT OF THE
PENDING APPLICATIONS WHICH ANTEDATED HIS CLAIMED DATE OF INVENTION AND
EVENTUATED INTO PATENTS, HE WAS NOT IN FACT THE FIRST INVENTOR, SINCE
HIS ADVANCE OVER THE PRIOR ART, IF ANY, REQUIRED ONLY THE EXERCISE OF
THE SKILL OF THE ART. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  HAZELTINE CORPORATION V. ABRAMS, 7 F.SUPP.  908. 

FN2  HAZELTINE CORPORATION V. ABRAMS, 79 F.2D 329. 

FN3  DETROLA RADIO & TELEVISION CORP. V. HAZELTINE CORPORATION, 117
F.2D 238. 

FN4  WHEELER'S DATE OF CONCEPTION OF HIS INVENTION, ACCORDING TO HIS
TESTIMONY, WAS DECEMBER 17, 1925. 

FN5  AFFEL, 1,574,780, MARCH 2, 1926; HEISING, 1,687,245, OCTOBER 9,
1928; BJORNSON, 1,666,676, APRIL 17, 1928, AND SCHELLENG, 1,836,556,
DECEMBER 15, 1931.  FRIIS, 1,675,848, JULY 3, 1928, AND EVANS,
1,736,852, NOVEMBER 26, 1929, WERE ALSO CITED BUT NOT DISCUSSED IN THE
OPINION.  IT WAS STIPULATED THAT THE DISCLOSURES AND CLAIMS OF THESE
PATENTS DID NOT DIFFER MATERIALLY FROM THOSE EMBODIED IN THE
APPLICATIONS THEREFOR. 

FN6  ALEXANDER MILBURN CO. V. DAVIS-BOURNONVILLE CO., 270 U.S. 390. 
..END :






BENITEZ V. BANK, 313 U.S. 270 


NO. 90.  SUBMITTED APRIL 10, 1941.  - DECIDED MAY 12, 1941.  - 109 F.2D
743, 750, REVERSED. 


THE STATUS OF "FARMER" FOR THE PURPOSES OF PROCEEDINGS UNDER SEC. 75
OF THE BANKRUPTCY ACT, IS DETERMINED BY THE DEFINITION OF THAT TERM IN
SEC. 75(R); NOT BY THE DEFINITION IN SEC. 1(17), WHICH RELATES TO OTHER

THIS RESULTS NOT ONLY FROM THE LANGUAGE OF SEC. 75(R) BUT ALSO FROM
THE LEGISLATIVE HISTORY. 

CARLOTA BENITEZ SAMPAYO V. BANK OF NOVA SCOTIA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 311 U.S. 623, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
DISTRICT COURT WHICH DISMISSED A PROCEEDING UNDER SEC. 75 OF THE
BANKRUPTCY ACT ON THE GROUND THAT THE PETITIONER WAS NOT A "FARMER." 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

TO ARRANGE A COMPOSITION OR AN EXTENSION AS A FARMER-DEBTOR,
PETITIONER FILED A PETITION IN OCTOBER, 1938, UNDER SEC. 75 OF THE
BANKRUPTCY ACT (47 STAT. 1467, 1470; AS AMENDED 48 STAT. 925; ID.,
1289; 49 STAT. 246; ID., 942).  FAILING TO SECURE THE ASSENTS REQUIRED
BY SEC. 75(G), PETITIONER AMENDED HER PETITION IN NOVEMBER, 1938, TO
PROCEED UNDER SEC. 75(S).  RESPONDENT THEN MOVED TO DISMISS THE
PETITION ON THE GROUND THAT PETITIONER WAS NOT A "FARMER" AND THEREFORE
WAS NOT ENTITLED TO THE RELIEF AFFORDED BY SEC. 75(S).  AFTER A
HEARING, THE DISTRICT COURT SUSTAINED THE MOTION. 

THE CIRCUIT COURT OF APPEALS AFFIRMED.  IT HELD THAT THE FORMULA FOR
DETERMINING WHETHER PETITIONER WAS A FARMER WAS TO BE FOUND IN SEC.
1(17) OF THE CHANDLER ACT OF 1938(52 STAT. 840, 841), AND THAT
PETITIONER COULD NOT BE REGARDED AS A FARMER WITHIN ITS TERMS.  109
F.2D 743, ON REHEARING, 109 F.2D 750.  BECAUSE THE DECISION WAS
SUBSTANTIALLY INCONSISTENT WITH ORDER 50(9) OF THE GENERAL ORDERS IN
BANKRUPTCY (305 U.S. 677, 710), WE GRANTED CERTIORARI.  FN1  311 U.S.
623. 

THE ULTIMATE QUESTION, OF COURSE, IS WHETHER PETITIONER MAY PROCEED
UNDER SEC. 75(S) AS A FARMER-DEBTOR, BUT FOR PRESENT PURPOSES THE
PROBLEM IS TO SELECT THE DEFINITION OF "FARMER" WHICH IS APPLICABLE TO
PERSONS PETITIONING FOR RELIEF UNDER SEC. 75. 

THE BANKRUPTCY ACT CONTAINS TWO DEFINITIONS OF THE TERM "FARMER." 
AN INDIVIDUAL PERSONALLY ENGAGED IN FARMING OR TILLAGE OF THE SOIL, AND
SHALL INCLUDE AN INDIVIDUAL PERSONALLY ENGAGED IN DAIRY FARMING OR IN
THE PRODUCTIONS OF POULTRY, LIVESTOCK, OR POULTRY OR LIVESTOCK PRODUCTS
IN THEIR UNMANUFACTURED STATE, IF THE PRINCIPAL PART OF HIS INCOME IS
DERIVED FROM ANY ONE OR MORE OF SUCH OPERATIONS." 

PURPOSES OF THIS SECTION, SECTION 4(B), AND SECTION 74, THE TERM
'FARMER' INCLUDES NOT ONLY AN INDIVIDUAL WHO IS PRIMARILY BONA FIDE
PERSONALLY ENGAGED IN PRODUCING PRODUCTS OF THE SOIL, BUT ALSO ANY
INDIVIDUAL WHO IS PRIMARILY BONA FIDE PERSONALLY ENGAGED IN DAIRY
FARMING, THE PRODUCTION OF POULTRY OR LIVESTOCK, OR THE PRODUCTION OF
POULTRY PRODUCTS OR LIVESTOCK PRODUCTS IN THEIR UNMANUFACTURED STATE,
OR THE PRINCIPAL PART OF WHOSE INCOME IS DERIVED FROM ANY ONE OR MORE
OF THE FOREGOING OPERATIONS, AND INCLUDES THE PERSONAL REPRESENTATIVE
OF A DECEASED FARMER.  ...  " 

STARTING WITH THE PREMISE THAT ONLY ONE OF THE DEFINITIONS CAN STAND,
RESPONDENT CONTENDS THAT SEC. 1(17) IS AN IMPLICIT REPEAL OF SEC.
75(R).  TO SUPPORT THE CONTENTION, RESPONDENT POINTS TO THE OBSOLETE
REFERENCE IN SEC. 75(R) TO SEC. 74, AND TO A STATEMENT IN A COMMITTEE
REPORT WHICH IS SAID TO INDICATE THAT CONGRESS INTENDED THE DEFINITION
IN SEC. 1(17) TO MEASURE THE APPLICABILITY OF SEC. 4(B) TO PERSONS WHO
CLAIM TO BE FARMERS.  FN2 

THE ARGUMENT IGNORES THE PLAIN IMPORT OF SEC. 75(R).  THE MEANING OF
THE PHRASE "FOR THE PURPOSES OF THIS SECTION" IS HARDLY OPEN TO
QUESTION.  OBVIOUSLY, IT IS NEITHER IMPOSSIBLE NOR NECESSARILY
INCONSISTENT TO PRESCRIBE ONE DEFINITION FOR A PARTICULAR SECTION OR
APPLICABILITY OF SEC. 75(R) TO PROCEEDINGS UNDER SEC. 75 SERIOUSLY
PLACED IN DOUBT BECAUSE THE FORMER SECTION REFERS TO A SECTION WHICH NO
LONGER EXISTS UNDER THAT NUMBER AND TO A SECTION WHICH NOW MAY BE
GOVERNED BY SEC. 1(17).  THE ONLY QUESTION HERE IS WHETHER SEC. 75(R)
OR SEC. 1(17) IS APPLICABLE TO SEC. 75. 

DISTRESSED-DEBTOR LEGISLATION OF 1933.  47 STAT. 1467, 1470-1473. 
DESIGNED FOR A PARTICULAR PURPOSE, THE RELIEF OF HARD-PRESSED FARMERS,
IT WAS REGARDED AS A SPECIAL AND TEMPORARY ENACTMENT.  SEE SEC. 75(C);
COMPARE S. REP. NO. 1215, 73D CONG., 2D SESS., P. 3; H. REP. NO. 1898,
73D CONG., 2D SESS., P. 2.  IN 1938 ITS TIME LIMIT WAS EXTENDED TO
1940.  52 STAT. 84, 85.  AT THAT TIME A SPECIAL COMMITTEE HELD
EXTENSIVE HEARINGS ON A PROPOSAL TO MAKE SEC. 75 A PERMANENT PART OF
THE BANKRUPTCY ACT, AND FINALLY CONCLUDED THAT THE SECTION SHOULD BE
CONTINUED ONLY AS TEMPORARY LEGISLATION.  HEARINGS BEFORE SPECIAL
SUBCOMMITTEE ON BANKRUPTCY OF THE COMMITTEE ON THE JUDICIARY, 75TH
CONGRESS, 2D AND 3D SESSIONS; SEE ALSO H. REP. NO. 1833, 75TH CONG., 3D
SESS., P. 2; S. REP. NO. 899, 75TH CONG., 1ST SESS.; H. REP. NO. 1658,
76TH CONG., 3D SESS., P. 2.  NATURALLY ENOUGH, LEGISLATION DRAFTED FOR
SUCH A PURPOSE CARRIED ITS OWN TEST FOR DETERMINING THE PERSONS TO WHOM
IT SHOULD APPLY. 

WHEN THE PROPOSED REVISION OF 1938 WAS BEFORE A SENATE COMMITTEE,
REPRESENTATIVE CHANDLER, THE PROPONENT OF THE BILL, STATED:  "WE DID
NOT TOUCH (SEC. 75) AND IT IS NOT AFFECTED BY THIS ACT."  DISCUSSING
THE ALTERATIONS IN EXISTING STATUTES WORKED BY THE NEW ACT, THE HOUSE
REPORT LACONICALLY OBSERVED THAT THERE WAS "NO CHANGE" IN SEC. 75.  H.
REP. NO. 1409, 75TH CONG., 1ST SESS., P. 144.  SOMEWHAT LESS BRIEFLY,
THE SENATE REPORT STATED:  "SECTION 75 RELATES TO AGRICULTURAL
COMPOSITIONS AND EXTENSIONS.  THESE EXPIRE BY LIMITATION AND ARE,
THEREFORE, NOT COVERED BY THE BILL."  S. REP. NO. 1916, 75TH CONG., 3D
SESS., P. 18. 

THE CHANDLER ACT, A CAREFUL AND COMPREHENSIVE REVISION OF BANKRUPTCY
LEGISLATION, WAS THE PRODUCT OF SEVERAL YEARS OF THOUGHTFUL STUDY.  SEE
81 CONG. REC. 8646-8649.  ONE OF ITS AVOWED PURPOSES WAS TO CLARIFY OR
REMOVE INCONSISTENT AND OVERLAPPING PROVISIONS.  SEE H. REP. NO. 1409,
75TH CONG., 1ST SESS., PP. 1-3.  AS A PART OF THIS COMPREHENSIVE
REVISION, NUMEROUS DEFINITIONS WERE OVERHAULED OR INSERTED FOR THE
FIRST TIME.  AMONG THE LATTER WAS SEC. 1(17).  SEE H. REP. NO. 1409,
SUPRA, P. 6.  BUT SEC. 75(R) ALSO WAS LEFT IN THE ACT, AND, AS ALREADY
INDICATED, ITS EXISTENCE WAS NOT UNKNOWN TO THE REVISORS.  ITS VERY
PRESENCE IN THE STATUTE AFTER THE REVISION IS PERSUASIVE EVIDENCE THAT
SEC. 1(17) WAS NOT INTENDED TO GOVERN PROCEEDINGS UNDER SEC. 75. 

WE CONCLUDE THAT PETITIONER'S ACTIVITIES MUST BE TESTED BY THE
DEFINITION IN SEC. 75(R) RATHER THAN BY THE ONE IN SEC. 1(17).  THE
JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT COURT OF
APPEALS FOR CONSIDERATION OF OTHER QUESTIONS IN LIGHT OF OUR DECISION. 
REVERSED. 

FN1  INSOFAR AS MATERIAL HERE, ORDER 50(9) READS:  "  ...  THE
PETITION SHALL SHOW TO THE SATISFACTION OF THE DISTRICT COURT THAT THE
DECEDENT AT THE TIME OF HIS DEATH WAS A FARMER WITHIN THE MEANING OF
SUBDIVISION (R) OF SECTION 75.  ...  " 

FN2  THE LATTER ARGUMENT, UPON WHICH WE EXPRESS NO OPINION, IS
GROUNDED ON THE STATEMENT IN H. REP. NO. 1409, 75TH CONG., 1ST SESS.,
P. 6, WHICH RUNS:  "THE AMENDMENT OF MAY 5, 1935  ... EXTENDS THE
MEANING OF THE TERM 'FARMER.'  ...  CORRESPONDINGLY, SECTION 4 OF THE
ACT IS AMENDED BY SUBSTITUTING THE PHRASE 'A FARMER' FOR THE LANGUAGE
'A PERSON ENGAGED CHIEFLY IN FARMING OR THE TILLAGE OF THE SOIL.' 
PURSUANT TO THIS PURPOSE OF CONGRESS TO EXPAND THE MEANING OF THE TERM,
IT WOULD SEEM ADVISABLE TO FORMULATE A NEW DEFINITION AND TO INCLUDE IT
IN SECTION 1 AS CLAUSE (17)." 

MR. JUSTICE STONE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :













DEPT. OF TREASURY V. MFG. CO., 313 U.S. 252 


NO. 655.  ARGUED APRIL 1, 1941.  - DECIDED MAY 5, 1941.  - 114 F.2D 889,
REVERSED. 


AN INDIANA CORPORATION HAVING A FACTORY IN THAT STATE AT WHICH IT
MANUFACTURED ENAMEL AND APPLIED IT BY HEAT TO METAL ARTICLES, OBTAINED
THROUGH ITS TRAVELING SALESMEN FROM MANUFACTURERS IN OTHER STATES
ORDERS FOR THE ENAMELING OF METAL PARTS WHICH THEY USED IN THE MAKING
OF STOVES AND REFRIGERATORS; PURSUANT TO WHICH CONTRACTS, IT
TRANSPORTED THE PARTS FROM THE CUSTOMERS' PLANTS TO ITS OWN PLANT,
ENAMELED THEM THERE, AND RETURNED THEM TO THE PLANTS OF THE CUSTOMERS,
DOING THE TRANSPORTATION BY MEANS OF ITS OWN TRUCKS.  THEREAFTER IT
BILLED THE CUSTOMERS FOR THE ENAMELING, AND REMITTANCES WERE MADE TO IT
BY MAIL.  THE VALUE OF THE METAL PARTS AS UNITS AFTER THE COMPLETION OF
THE ENAMELING PROCESS WAS FROM TWO AND ONE-HALF TO THREE TIMES THE
VALUE OF THE PARTS BEFORE THE ENAMELING.  HELD: 

1.  THAT THE INCOME WAS DERIVED FROM SERVICES, NOT FROM SALES OF THE
ENAMEL IN INTERSTATE COMMERCE.  P. 254. 

2.  THE GROSS RECEIPTS FROM THE ENAMELING WERE TAXABLE BY INDIANA
UNDER ITS GROSS INCOME TAX LAW.  P. 254. 

3.  THE TRANSPORTATION WAS AN INCIDENT TO THE ENAMELING SERVICE.  P.
255. 

4.  IF THE TRANSPORTATION WAS AN ITEM OF SERVICE FOR WHICH DEDUCTIONS
SHOULD HAVE BEEN ALLOWED IN THE TAX, THE TAXPAYER SHOULD HAVE CLAIMED
THE DEDUCTION AND SHOWN ITS AMOUNT.  P. 255. 

5.  THE QUESTION WHETHER THE INDIANA TAX LAW ALLOWS THE TAXPAYER TO
CLAIM DEDUCTIONS IN HIS TAX RETURN AND SECURE AN APPORTIONMENT OF THE
TAX, IS A QUESTION OF STATE LAW WHICH THIS COURT IS NOT CALLED UPON TO
ANSWER, THE TAXPAYER NOT HAVING PRESENTED IT TO THE STATE AUTHORITIES. 
P. 256. 

DEPARTMENT OF TREASURY OF INDIANA ET AL. V. INGRAM-RICHARDSON
MANUFACTURING CO. OF INDIANA, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 312 U.S. 671, TO REVIEW A JUDGMENT AFFIRMING A RECOVERY
IN A SUIT FOR A REFUND OF TAXES ALLEGED TO HAVE BEEN UNLAWFULLY
COLLECTED. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS, AFFIRMING THE DISTRICT COURT, HAS HELD
THAT RESPONDENT, INGRAM-RICHARDSON MANUFACTURING COMPANY, IS ENTITLED
TO A REFUND OF A TAX LEVIED UNDER THE INDIANA GROSS INCOME TAX LAW,
FN1  UPON THE GROUND OF THE INVALIDITY OF THE TAX UNDER THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION.  114 F.2D 889.  WE GRANTED
CERTIORARI BECAUSE OF AN ALLEGED CONFLICT WITH APPLICABLE DECISIONS OF
THIS COURT. 

THE TAX WAS FOR $5410.20  FN2  AND WAS LAID UPON RESPONDENT'S GROSS
RECEIPTS DERIVED AS FOLLOWS: 

RESPONDENT, AN INDIANA CORPORATION, HAS A FACTORY AT FRANKFORT IN
THAT STATE WHERE IT MANUFACTURES ENAMEL, BOTH IN A GRANULAR FORM, KNOWN
AS FRIT, AND IN A HARD, FINISHED FORM FUSED WITH METAL ARTICLES.  IN
THE INSTANT CASE THE ENAMEL WAS FUSED WITH METAL PARTS USED IN STOVES
AND REFRIGERATORS MANUFACTURED BY RESPONDENT'S CUSTOMERS IN VARIOUS
STATES OTHER THAN INDIANA.  RESPONDENT'S TRAVELING SALESMEN SOLICITED
ORDERS FROM SUCH CUSTOMERS PURSUANT TO WHICH RESPONDENT TRANSPORTED BY
ITS TRUCKS THE STOVE AND REFRIGERATOR PARTS BELONGING TO ITS CUSTOMERS
FROM THEIR PLANTS TO ITS OWN PLANT FOR ENAMELING.  THERE THE ENAMELING
WAS DONE BY THE PROCESS SET FORTH IN THE FINDINGS, AND RESPONDENT THEN
HAULED THE ENAMELED PARTS BACK TO ITS CUSTOMERS' FACTORIES.  RESPONDENT
THEREAFTER BILLED ITS CUSTOMERS FOR THE ENAMELING AND REMITTANCES WERE
MADE TO RESPONDENT BY MAIL.  THE VALUE OF THE METAL PARTS AS UNITS
AFTER THE COMPLETION OF THE ENAMELING PROCESS WAS FROM TWO AND ONE-HALF
TO THREE TIMES THE VALUE OF THE RESPECTIVE PARTS BEFORE THE ENAMELING. 

RESPONDENT'S CONTENTION, AS SET FORTH IN ITS COMPLAINT AND AS STILL
ASSERTED, IS THAT THESE TRANSACTIONS CONSTITUTED SALES OF THE HARD,
FINISHED ENAMEL IN INTERSTATE COMMERCE.  THE CIRCUIT COURT OF APPEALS
DISAGREED WITH THAT CONTENTION AND HELD THAT THE INCOME IN QUESTION WAS
DERIVED FROM SERVICES.  WE ARE IN ACCORD WITH THAT VIEW. 

IN THE ALTERNATIVE, RESPONDENT CONTENDS THAT THE SERVICES PAID FOR
INCLUDED THE SOLICITATION OF ORDERS BY RESPONDENT'S AGENTS AND THE
EXECUTION OF CONTRACTS IN OTHER STATES, INTERSTATE COMMUNICATIONS BY
MAIL, TELEPHONE AND TELEGRAPH, AND ALSO THE TRANSPORTATION BY
RESPONDENT OF THE STOVE AND REFRIGERATOR PARTS FROM AND TO PLACES IN
OTHER STATES. 

THE ENAMELING PROCESS WAS AN ACTIVITY PERFORMED AT RESPONDENT'S PLANT
IN INDIANA AND THE GROSS RECEIPTS THEREFROM WERE TAXABLE BY INDIANA
UNDER ITS GROSS INCOME TAX LAW.  SEE DEPARTMENT OF TREASURY V. WOOD
PRESERVING CORP., ANTE, P. 62.  THE FACT THAT THE ORDERS FOR THE
ENAMELING WERE OBTAINED BY RESPONDENT'S AGENTS AND CONTRACTS WERE
EXECUTED OUTSIDE INDIANA DID NOT MAKE THE ENAMELING PROCESS OTHER THAN
AN INTRASTATE ACTIVITY AND ANY THE LESS A PROPER SUBJECT FOR THE
APPLICATION OF THE TAXING STATUTE.  WESTERN LIVE STOCK V. BUREAU OF
REVENUE, 303 U.S. 250, 253. 

BUT THE COURT BELOW HAS HELD THAT THERE WAS INCLUDED IN THE SERVICE
RENDERED BY RESPONDENT THE TRANSPORTATION BY ITS TRUCKS OF THE STOVE
AND REFRIGERATOR PARTS FROM AND TO THE CUSTOMERS' PLANTS IN OTHER
STATES.  THE COURT THOUGHT THAT THE REASONING OF OUR OPINION IN GWIN,
WHITE & PRINCE V. HENNEFORD, 305 U.S. 434, APPLIED.  THAT CASE,
HOWEVER, PRESENTED A DIFFERENT SITUATION.  THE BUSINESS THERE WAS THAT
OF A MARKETING AGENT FOR A FEDERATION OF FRUIT GROWERS AND THE STATE
TAX WAS MEASURED BY THE GROSS RECEIPTS OF THE TAXPAYER FROM THE
BUSINESS OF MARKETING FRUIT SHIPPED FROM THE TAXING STATE TO THE PLACES
OF SALE IN OTHER STATES AND FOREIGN COUNTRIES.  WE FOUND THAT THE
ENTIRE SERVICE FOR WHICH THE COMPENSATION WAS PAID WAS "IN AID OF THE
SHIPMENT AND SALE OF MERCHANDISE IN THAT COMMERCE" (INTERSTATE AND
FOREIGN) AND HENCE THE SERVICE WAS HELD TO BE WITHIN THE PROTECTION OF
THE COMMERCE CLAUSE.  ID., P. 437.  HERE, ON THE CONTRARY, THE ENTIRE
SERVICE WAS IN AID OF THE ENAMELING BUSINESS CONDUCTED WITHIN THE
STATE.  THE TRANSPORTATION OF THE METAL PARTS TO AND FROM INDIANA WERE
BUT INCIDENT TO THAT INTRASTATE BUSINESS, AS WAS THE CIRCULATION OF
APPELLANTS' MAGAZINE IN STATES OTHER THAN THE TAXING STATE IN THE
WESTERN LIVE STOCK CASE, SUPRA, P. 254. 

MOREOVER, IF THE TRANSPORTATION OF THE METAL PARTS WERE REGARDED AS
AN ITEM OF SERVICE FOR WHICH A DEDUCTION SHOULD HAVE BEEN ALLOWED, WE
THINK THAT IT WAS THE DUTY OF RESPONDENT, IN VIEW OF THE FACT THAT IT
WAS CONDUCTING AN INTRASTATE BUSINESS CLEARLY SUBJECT TO THE TAX, TO
CLAIM THE DEDUCTION AND SHOW THE AMOUNT WHICH SHOULD BE ALLOWED.  IT
DOES NOT APPEAR THAT RESPONDENT DID EITHER.  RESPONDENT MADE ITS CLAIM
FOR A TOTAL EXEMPTION FROM THE TAX UPON THE GROUND THAT IT WAS LAID
UPON INTERSTATE SALES, A CONTENTION WHICH IT HAS FAILED TO SUPPORT. 

THE STATE CONTENDS, CITING PROVISIONS OF THE TAXING ACT, THAT THE
LEGISLATURE OF INDIANA CONTEMPLATED THAT THE TAXPAYER WOULD REFLECT IN
THE TAX RETURN ANY DEDUCTIONS CLAIMED, MAKING A SEPARATION BETWEEN
TAXABLE AND NON-TAXABLE ITEMS, AND THAT THE TAX RETURN ITSELF PROVIDED
A METHOD FOR CLAIMING ANY DEDUCTIONS TO WHICH THE TAXPAYER THOUGHT
ITSELF ENTITLED.  RESPONDENT INSISTS THAT THE ACT DID NOT PROVIDE A
METHOD OF APPORTIONMENT.  IN THE ABSENCE OF AN EFFORT ON THE PART OF
RESPONDENT TO PRESENT A CLAIM FOR DEDUCTION AND TO HAVE THE STATE
AUTHORITIES PASS UPON THE QUESTION OF DEDUCTION OR APPORTIONMENT, AS
DISTINGUISHED FROM ITS CLAIM FOR A TOTAL EXEMPTION, WE ARE NOT CALLED
UPON TO ATTEMPT TO RESOLVE THE QUESTION OF STATE LAW. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  SECTION 2 OF CHAPTER 50 OF THE ACTS OF INDIANA OF 1933.  11
BURNS INDIANA STATUTES, SEC. 64-2602.  SEE DEPARTMENT OF TREASURY V.
WOOD PRESERVING CORP., ANTE, P. 62. 

FN2  THE SUIT ALSO EMBRACED A CLAIM FOR AN ADDITIONAL SUM OF $1154.26
RECOVERY OF WHICH WAS DENIED BELOW.  THAT CLAIM IS NOT BEFORE US.
..END :












JENKINS V. KURN, 313 U.S. 256 


NO. 732.  ARGUED APRIL 8, 1941.  - DECIDED MAY 5, 1941.  - 146 MO. 904 -
144 S.W.2D 76, REVERSED. 


1.  THE RIGHT OF ACTION CONFERRED BY THE FEDERAL EMPLOYERS LIABILITY
ACT, 45 U.S.C. SEC. 51, IS NOT TO BE BURDENED WITH IMPOSSIBLE
CONDITIONS.  P. 258. 

2.  IN AN ACTION BY A LOCOMOTIVE FIREMAN TO RECOVER DAMAGES FOR
INJURIES RESULTING FROM A FALL ALLEGED TO HAVE BEEN DUE TO THE
NEGLIGENCE OF THE ENGINEER IN FAILING TO APPLY THE BRAKES AFTER NOTICE
THAT A TRAIN WAS STANDING ON THE TRACK AHEAD, HELD THAT EVIDENCE
TENDING TO PROVE THAT THE ENGINEER RECEIVED A WARNING FROM THE FIREMAN
WHICH, UNDER THE CIRCUMSTANCES, HE SHOULD HAVE UNDERSTOOD, WAS
SUFFICIENT TO GO TO THE JURY WITHOUT FURTHER PROOF THAT HE ACTUALLY
UNDERSTOOD WHAT WAS SAID.  P. 258. 

JENKINS V. KURN ET AL., TRUSTEES. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

CERTIORARI, 312 U.S. 675, TO REVIEW A JUDGMENT REVERSING A RECOVERY
IN AN ACTION UNDER THE FEDERAL EMPLOYERS LIABILITY ACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WHEN THE INTERSTATE TRAIN ON WHICH HE WAS FIREMAN EMERGED FROM A
CURVE ON THE OUTSKIRTS OF WINFIELD, KANSAS, PETITIONER SIGHTED A TRAIN
STANDING NOT MORE THAN SIX HUNDRED FEET AHEAD ON THE SAME TRACK.  HE
SHOUTED TO THE ENGINEER TO PUSH THE BRAKE VALVE OVER IN EMERGENCY.  THE
ENGINEER TURNED AND LOOKED AT HIM BUT DID NOTHING TO ARREST THE
MOVEMENT OF THE TRAIN.  PETITIONER JUMPED FROM HIS SEAT, CROSSED THE
CAB, AND STOOD BEHIND THE ENGINEER FOR A BRIEF TIME BUT SAID NOTHING. 
WHEN THE ENGINE WAS BUT TWO OR THREE CAR LENGTHS FROM THE STANDING
TRAIN, THE ENGINEER APPLIED THE BRAKES.  AT THAT MOMENT PETITIONER
LEAPED FROM THE ENGINE AND LANDED IN SOME ROCKS ALONG THE TRACK.  HE
SUSTAINED SERIOUS INJURIES AND TO RECOVER DAMAGES BROUGHT THE INSTANT
ACTION UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT (45 U.S.C. SECS. 51
59) AGAINST RESPONDENTS IN A MISSOURI CIRCUIT COURT. 

THE COMPLAINT CONTAINED FIVE COUNTS CHARGING NEGLIGENCE, BUT ONLY THE
FOURTH WAS SUBMITTED TO THE JURY.  COUNT FOUR ALLEGED:  "  ...  THAT
SAID ENGINEER  ...  WAS FURTHER NEGLIGENT IN THAT AFTER HE WAS NOTIFIED
BY (PETITIONER) THAT THE (TRAIN) WAS STANDING ON SAID TRACK NEAR SAID
CROSSING, HE FAILED TO IMMEDIATELY APPLY THE AIR IN THE EMERGENCY, TO
STOP SAID TRAIN, WHICH NEGLIGENCE CREATED A DILEMMA OF IMMINENT PERIL,
WHICH FORCED (PETITIONER) TO JUMP FROM SAID TRAIN IN ORDER TO SAVE HIS
LIFE, OR SOME BODILY HARM." 

THE CASE WAS TRIED BEFORE A JURY WHICH RETURNED A VERDICT OF
$12,000.  FROM JUDGMENT IN THAT AMOUNT ENTERED FOR PETITIONER,
RESPONDENTS APPEALED, ASSIGNING VARIOUS ERRORS.  CONFINING ITS
ATTENTION TO ONE, THE SUPREME COURT OF MISSOURI HELD THAT THE CIRCUIT
COURT SHOULD HAVE GRANTED RESPONDENTS' MOTION FOR A DIRECTED VERDICT. 
IT REVERSED THE JUDGMENT BUT DID NOT REMAND THE CAUSE FOR A NEW TRIAL. 
146 MO. 904; 144 S.W.2D 76.  WE GRANTED CERTIORARI, 312 U.S. 675. 

IT IS CONCEDED THAT THE ACTION WAS PROPERLY BROUGHT UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  THE SINGLE QUESTION IS WHETHER THE TRIAL
COURT CORRECTLY REFUSED TO DIRECT A VERDICT FOR RESPONDENTS. 

IN EXPLANATION OF ITS CONCLUSION THAT THE TRIAL COURT ERRED, THE
SUPREME COURT OF MISSOURI OBSERVED: "THE BURDEN WAS ON (PETITIONER) TO
ESTABLISH THAT HE NOTIFIED THE ENGINEER TO GO INTO EMERGENCY.  HE DID
NOT SO NOTIFY HIM UNLESS THE ENGINEER UNDERSTOOD WHAT WAS SAID, AND
THERE IS NOT EVEN A SCINTILLA OF EVIDENCE THAT THE ENGINEER UNDERSTOOD
WHAT (PETITIONER) SAID."  IN OTHER WORDS, NOT ONLY MUST PETITIONER
PROVE THAT HE MOVED TO WARN THE ENGINEER OF THE IMPENDING DANGER, BUT
HE MUST PROVE THE ENGINEER'S SUBJECTIVE COMPREHENSION AND CORRECT
INTERPRETATION OF THAT WARNING, VERBAL OR OTHERWISE.  WE CANNOT AGREE. 

TO BE SURE, PETITIONER WAS REQUIRED BY THE ALLEGATIONS OF HIS
COMPLAINT TO PROVE THAT HE ACTED PROMPTLY AND REASONABLY TO AWAKEN THE
ENGINEER TO THE DANGER AHEAD.  SINCE THE ONLY COUNT SUBMITTED TO THE
JURY CHARGED THAT THE ENGINEER WAS NEGLIGENT IN FAILING TO APPLY THE
BRAKES AFTER NOTICE OF THE TRAIN IN FRONT, PETITIONER WAS COMPELLED
ALSO TO PROVE THAT THE NOTICE WAS COMMUNICATED TO THE ENGINEER.  BUT TO
ESTABLISH THE FACT OF COMMUNICATION PETITIONER HAD ONLY TO PROVE THAT
THE ENGINEER SHOULD HAVE COMPREHENDED THE WARNING UNDER THE
CIRCUMSTANCES DISCLOSED.  HE WAS NOT OBLIGATED TO GO FURTHER AND
PRODUCE EVIDENCE OF THE SUBJECTIVE REACTIONS IN THE ENGINEER'S MIND. 
THE RIGHT OF ACTION CONFERRED BY SEC. 51 IS NOT TO BE BURDENED WITH
IMPOSSIBLE CONDITIONS. 

THERE WAS EVIDENCE FROM WHICH THE JURY COULD HAVE CONCLUDED THAT IF
NOT SUBJECT TO ANY PHYSICAL DISABILITY THE ENGINEER WOULD HAVE
COMPREHENDED PETITIONER'S MONITION AND UNDERSTOOD THAT PERIL WAS
IMMINENT.  PETITIONER TESTIFIED WITHOUT CONTRADICTION THAT HE
"HOLLERED" HIS WARNING LOUDLY; THAT ONLY A NARROW SPACE SEPARATED HIS
PERCH FROM THE ENGINEER'S SEAT; THAT THE ENGINEER'S HEARING WAS "ALL
RIGHT"; THAT PETITIONER AND THE ENGINEER COULD AND DID CARRY ON "NORMAL
CONVERSATIONS" WHILE THE TRAIN WAS OPERATING; AND THAT THERE WAS
COMPARATIVELY LITTLE NOISE IN THE CAB FROM THE TRAIN. 

JUDGED BY THE TEST OUTLINED ABOVE, THAT EVIDENCE WAS AMPLE TO WARRANT
SUBMISSION OF THE ISSUE TO THE JURY.  SINCE OTHER QUESTIONS, WHICH OUR
DECISION DOES NOT TOUCH, WERE PRESENTED TO THE SUPREME COURT OF
MISSOURI, THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THAT
COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 
..END :
















DEPT. OF TREASURY V. WOOD CORP., 313 U.S. 62 


NO. 654.  ARGUED APRIL 1, 1941.  - DECIDED APRIL 28, 1941.  - 114 F.2D
922, REVERSED. 


1.  A STATE MAY TAX THE GROSS RECEIPTS DERIVED BY A FOREIGN
CORPORATION FROM GOODS BOUGHT AND SOLD BY IT WITHIN THE STATE.  ADAMS
MANUFACTURING CO. V. STOREN, 304 U.S. 307, DISTINGUISHED.  P. 66. 

2.  A FOREIGN CORPORATION CAN NOT ESCAPE SUCH A TAX BY ARRANGING TO
HAVE THE PROCEEDS OF ITS INTRASTATE TRANSACTIONS PAID TO IT IN ANOTHER
STATE.  P. 67. 

3.  A DELAWARE CORPORATION, RESPONDENT IN THIS CASE, ARRANGED BY
TELEPHONE FROM ITS OHIO OFFICE WITH INDIANA PRODUCERS FOR DELIVERY OF
RAILROAD TIES IN INDIANA AT A LOADING POINT ON THE LINE OF A RAILROAD
COMPANY WITH WHICH IT HAD CONTRACTED BOTH TO SELL TIES AND TO TREAT
THEM WITH CREOSOTE AT ITS PLANT IN OHIO.  WHEN BROUGHT TO THE RAILROAD,
IN INDIANA, THE TIES WERE EXAMINED BY THE RAILROAD'S INSPECTOR IN THE
PRESENCE OF RESPONDENT'S AGENT, AND THOSE ACCEPTED BY THE INSPECTOR
WERE IMMEDIATELY LOADED ON CARS AND WERE HAULED TO THE OHIO PLANT,
UNDER BILLS OF LADING NAMING THE RESPONDENT AS CONSIGNOR AND AN OFFICER
OF THE RAILROAD AS CONSIGNEE.  RESPONDENT PAID NO FREIGHT FOR THE
TRANSPORTATION.  ITS OHIO OFFICE MAILED WEEKLY INVOICES TO THE RAILROAD
AT ITS OFFICE IN MARYLAND FOR THE TIES SO DELIVERED TO THE RAILROAD,
AND MONTHLY REPORTS OF SUCH INVOICES WERE MADE TO RESPONDENT'S MAIN
OFFICE IN PENNSYLVANIA.  ALL PAYMENTS FOR TIES WERE MADE TO
RESPONDENT'S OFFICE IN PENNSYLVANIA AND WERE THERE DEPOSITED IN BANK. 
HELD: 

(1)  THAT THE SALES OF TIES TO THE RAILROAD IN INDIANA WERE LOCAL
TRANSACTIONS SEPARATE FROM THE CREOSOTING SERVICE AND THE RECEIPTS FROM
SUCH SALES WERE SUBJECT TO THE INDIANA TAX.  P. 68. 

(2)  THE CIRCUMSTANCE THAT THE BILLING WAS IN THE NAME OF THE
RESPONDENT AS CONSIGNOR IS IMMATERIAL, IN VIEW OF THE COMPLETED
DELIVERY TO THE RAILROAD IN INDIANA.  P. 68. 

DEPARTMENT OF TREASURY OF INDIANA ET AL. V. WOOD PRESERVING
CORPORATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 312 U.S. 670, TO REVIEW THE REVERSAL OF A JUDGMENT
AGAINST THE PRESENT RESPONDENT IN ITS SUIT TO RECOVER MONEY COLLECTED
AS TAXES BY THE TREASURER OF THE STATE OF INDIANA. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT BY RESPONDENT, THE WOOD PRESERVING CORPORATION,
TO RECOVER TAXES COLLECTED FROM IT BY THE DEPARTMENT OF TREASURY OF THE
STATE OF INDIANA UNDER THE INDIANA GROSS INCOME TAX ACT OF 1933.  THE
DISTRICT COURT DENIED RECOVERY AND ITS JUDGMENT WAS REVERSED BY THE
CIRCUIT COURT OF APPEALS UPON THE GROUND THAT THE TAXES WERE INVALID
UNDER THE FEDERAL CONSTITUTION AS LAID UPON INCOME RECEIVED OUTSIDE THE
STATE AND AS CONSTITUTING AN UNLAWFUL BURDEN UPON INTERSTATE COMMERCE. 
114 F.2D 922.  IN VIEW OF THE ASSERTED CONFLICT WITH APPLICABLE
DECISIONS OF THIS COURT, CERTIORARI WAS GRANTED, 312 U.S. 670. 

THE FACTS WERE FOUND IN ACCORDANCE WITH THE STIPULATION OF THE
PARTIES.  RESPONDENT IS A DELAWARE CORPORATION WITH ITS PRINCIPAL PLACE
OF BUSINESS AT PITTSBURGH, PENNSYLVANIA.  IT IS QUALIFIED TO DO
BUSINESS IN INDIANA BUT HAS NO AGENTS OR EMPLOYEES WITHIN THAT STATE
EXCEPT AS SPECIFIED.  RESPONDENT IS ENGAGED IN THE BUSINESS OF TREATING
RAILROAD TIES BY CREOSOTING THEM AND ALSO IN THE BUSINESS OF PURCHASING
AND SELLING TIES.  IT DOES NOT, HOWEVER, SELL TIES SAVE TO THOSE WITH
WHOM IT HAS A CONTRACT FOR TREATMENT. 

THE TAXES IN QUESTION WERE FOR THE YEARS 1934, 1935, AND 1936.  THE
TAXES WERE LAID UPON RESPONDENT'S GROSS RECEIPTS FROM THE SALE OF TIES
TO THE BALTIMORE AND OHIO RAILROAD COMPANY IN ACCORDANCE WITH CERTAIN
CONTRACTS.  ONE CONTRACT REQUIRED THE RAILROAD COMPANY TO DELIVER FOR
TREATMENT 600,000 TIES ANNUALLY TO A TREATMENT PLANT AT FINNEY, OHIO,
BELONGING (THROUGH A SUBSIDIARY) TO RESPONDENT.  THE OTHER PROVIDED FOR
THE SALE OF RAW TIES TO THE RAILROAD COMPANY, DELIVERED F.O.B. CARS ON
THE RAILROAD TRACKS; ALSO FOR TREATMENT OF TIES AT ANOTHER PLANT TO BE
OPERATED BY RESPONDENT (UNDER LEASE FROM THE RAILROAD COMPANY) IN WEST
VIRGINIA.  A SUPPLEMENTAL AGREEMENT REQUIRED RESPONDENT TO SHIP ALL
TIES DELIVERED TO THE RAILROAD IN TERRITORY WEST OF THE OHIO RIVER,
INCLUDING INDIANA, TO THE PLANT AT FINNEY, OHIO, FOR TREATMENT. 
RESPONDENT SOLD TO THE RAILROAD COMPANY NO TIES THAT WERE NOT TO BE
TREATED AT ONE OR THE OTHER OF ITS PLANTS BEFORE USE. 

THE COURSE OF BUSINESS, SO FAR AS MATERIAL HERE, WAS AS FOLLOWS:
RESPONDENT ITSELF PRODUCED NO TIES IN INDIANA.  REQUISITIONS FOR TIES
WERE ISSUED FROM THE RAILROAD COMPANY'S OFFICE IN BALTIMORE AND WERE
ACCEPTED AT RESPONDENT'S OFFICE IN MARIETTA, OHIO, BY TELEPHONE OR
MAIL.  RESPONDENT THEN PROCURED THE TIES FROM LOCAL PRODUCERS IN
INDIANA THROUGH COMMUNICATIONS BY TELEPHONE OR MAIL FROM ITS MARIETTA
OFFICE.  THE INDIANA VENDORS DELIVERED THE TIES AT LOADING POINTS ON
THE RAILROAD IN INDIANA.  WHEN THE TIES WERE READY, AN INSPECTOR FOR
THE RAILROAD COMPANY AND RESPONDENT'S AGENT MET AT THE LOADING POINT IN
INDIANA, AND AS THE TIES WERE EXAMINED WITH RESPECT TO COMPLIANCE WITH
SPECIFICATIONS, THOSE ACCEPTED BY THE RAILROAD INSPECTOR WERE LOADED ON
FREIGHT CARS FURNISHED BY THE RAILROAD COMPANY AT THE LOADING POINT. 
THE INSPECTION AND LOADING WERE SIMULTANEOUS.  RESPONDENT PAID THE
INDIANA PRODUCERS ONLY FOR TIES WHICH WERE THUS ACCEPTED.  RESPONDENT'S
AGENT MADE OUT BILLS OF LADING WITH RESPONDENT AS CONSIGNOR AND THE
RAILROAD COMPANY'S CHIEF ENGINEER OF MAINTENANCE AT FINNEY, OHIO, AS
CONSIGNEE, AND THE TIES WERE CARRIED TO FINNEY, OHIO, FOR TREATMENT. 
RESPONDENT PAID NO FREIGHT TO THE RAILROAD COMPANY FOR THAT
TRANSPORTATION.  RESPONDENT'S OFFICE AT MARIETTA MAILED WEEKLY INVOICES
TO THE RAILROAD COMPANY AT ITS BALTIMORE OFFICE FOR THE TIES SOLD AND
DELIVERED TO THE RAILROAD COMPANY AND MONTHLY REPORTS OF SUCH INVOICES
WERE MADE TO RESPONDENT'S MAIN OFFICE AT PITTSBURGH.  ALL PAYMENTS FOR
TIES WERE MADE TO RESPONDENT'S PITTSBURGH OFFICE AND WERE THERE
DEPOSITED IN BANK. 

THE TAXES IN QUESTION WERE LAID BY THE INDIANA AUTHORITIES ON THE
RECEIPTS WHICH RESPONDENT DERIVED FROM THE SALE OF THE UNTREATED TIES. 
THESE RECEIPTS DID NOT INCLUDE CHARGES FOR THE CREOSOTING TREATMENT;
THOSE CHARGES WERE SEPARATELY BILLED BY RESPONDENT'S SUBSIDIARY WHEN
THE TREATMENT WAS COMPLETED. 

FORTH IN THE MARGIN,  FN1 PROVIDES FOR A TAX UPON GROSS INCOME "DERIVED
FROM SOURCES WITHIN THE STATE OF INDIANA" OF ALL NONRESIDENT PERSONS
AND CORPORATIONS.  THE COURT BELOW HAS HELD THAT UNDER THIS STATUTE THE
THING TAXED WAS "THE RECEIPT OF GROSS INCOME" AND AS THE INCOME IN
QUESTION WAS RECEIVED BY RESPONDENT IN PENNSYLVANIA, IT WAS BEYOND THE
JURISDICTION OF INDIANA; THAT, IF THE CONTRARY THEORY OF THE TAXING
OFFICIALS WAS SOUND, STILL THE TAX WAS INVALID BECAUSE NO METHOD WAS
PROVIDED FOR ALLOCATING THE TAX TO THE INCOME DERIVED FROM THAT PART OF
THE BUSINESS TRANSACTED WITHIN INDIANA; AND, FURTHER, THAT THE
TRANSACTIONS IN QUESTION "WERE HAD IN INTERSTATE COMMERCE," THAT THE
TAX DISCRIMINATED AGAINST THAT COMMERCE AND FOR THAT REASON WAS VOID. 

WE THINK THAT THE COURT WAS IN ERROR IN EACH OF THESE CONCLUSIONS. 

AS TO THE FIRST POINT, THE COURT RELIED UPON OUR DECISION IN ADAMS
MANUFACTURING CO. V. STOREN, 304 U.S. 307.  THAT WAS A CASE UNDER THE
SAME TAXING ACT OF INDIANA, BUT THERE THE TAX WAS APPLIED TO GROSS
RECEIPTS DERIVED BY AN INDIANA CORPORATION FROM SALES IN OTHER STATES
OF GOODS MANUFACTURED IN INDIANA.  WE OBSERVED THAT THE TAX IS NOT AN
EXCISE FOR THE PRIVILEGE OF DOMICILE "SINCE IT IS LEVIED UPON THE GROSS
INCOME OF NONRESIDENTS FROM SOURCES WITHIN THE STATE."  THE POINT OF
THE DECISION WAS THAT "THE TAX IS WHAT IT PURPORTS TO BE,  - A TAX UPON
GROSS RECEIPTS FROM COMMERCE," AND THAT THE TAX WAS THERE LAID UPON
RECEIPTS FROM SALES TO CUSTOMERS IN OTHER STATES AND ABROAD WHICH
CONSTITUTED INTERSTATE AND FOREIGN COMMERCE.  ID., PP. 310, 311. 

THE PRESENT QUESTION IS AS TO THE VALIDITY OF THE TAX UPON RECEIPTS
"DERIVED FROM SOURCES WITHIN THE STATE,"  FN2  THAT IS, UNDER SEC. 2 OF
THE ACT, FROM ACTIVITIES WHICH PETITIONERS INSIST WERE INTRASTATE.  IF
PETITIONERS ARE RIGHT IN THIS CONTENTION THERE CAN BE NO DOUBT THAT
INDIANA HAD AUTHORITY TO LAY THE TAX.  UNDERWOOD TYPEWRITER CO. V.
CHAMBERLAIN, 254 U.S. 113, 120, 121; BOWMAN V. CONTINENTAL OIL CO., 256
U.S. 642, 648, 649; NATIONAL LEATHER CO. V. MASSACHUSETTS, 277 U.S.
413, 423; HANS REES' SONS V. NORTH CAROLINA, 283 U.S. 123, 134; JAMES
V. DRAVO CONTRACTING CO., 302 U.S. 134, 149, 161; DRAVO CONTRACTING CO.
V. JAMES, 114 F.2D 242, 247.  COMPARE WISCONSIN V. J.C. PENNEY CO., 311
U.S. 435.  IN THAT VIEW, IT CANNOT BE SAID THAT RESPONDENT HAD A
CONSTITUTIONAL RIGHT TO ESCAPE THAT BURDEN BY ARRANGING TO HAVE THE
PROCEEDS OF ITS INTRASTATE TRANSACTIONS PAID TO IT IN ANOTHER STATE. 
UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, SUPRA, P. 120; CONTINENTAL
ASSURANCE CO. V. TENNESSEE, 311 U.S. 5. 

FURTHER, AS THE SOLE SUBJECT OF THE CHALLENGED TAX IS THE INCOME
DERIVED FROM RESPONDENT'S SALES TO THE RAILROAD COMPANY THERE IS NO
OCCASION FOR APPORTIONMENT.  THE CREOSOTING OPERATIONS IN OHIO, AND THE
INCOME DERIVED FROM THEM, WERE NOT INVOLVED.  AND THE FACT THAT THE
TIES WHICH WERE SOLD TO THE RAILROAD COMPANY WERE PURCHASED BY
RESPONDENT THROUGH ORDERS GIVEN TO THE INDIANA PRODUCERS FROM
RESPONDENT'S MARIETTA OFFICE CANNOT AFFECT THE AUTHORITY OF INDIANA TO
TAX THE RECEIPTS FROM INTRASTATE ACTIVITIES OF RESPONDENT IN ITS
DEALINGS WITH THE RAILROAD COMPANY.  WOODRUFF V. PARHAM, 8 WALL.  123,
140; BANKER BROTHERS V. PENNSYLVANIA, 222 U.S. 210; WILOIL CORPORATION
V. PENNSYLVANIA, 294 U.S. 169, 175. 

AS TO THESE DEALINGS, IT APPEARS THAT RESPONDENT RECEIVED IN INDIANA
THE TIES IT PURCHASED FROM THE LOCAL PRODUCERS AND THAT RESPONDENT SOLD
AND DELIVERED THESE TIES IN INDIANA TO THE RAILROAD COMPANY.  THE FACT
THAT THE DELIVERY BY THE PRODUCERS TO RESPONDENT AND RESPONDENT'S
DELIVERY TO THE RAILROAD COMPANY TOOK PLACE AT THE SAME TIME IS NOT
IMPORTANT.  RESPONDENT WAS IN INDIANA ACTING THROUGH ITS AGENT AT THE
DESIGNATED POINTS ON THE RAILROAD LINE.  THE RAILROAD COMPANY WAS AT
THE SAME POINTS REPRESENTED BY ITS INSPECTOR.  THE TIES BROUGHT THERE
BY THE PRODUCERS WERE THEN EXAMINED AND THOSE FOUND BY THE INSPECTOR TO
BE IN ACCORDANCE WITH SPECIFICATIONS WERE ACCEPTED.  IN THESE
TRANSACTIONS, RESPONDENT THROUGH ITS AGENT AT ONCE ACCEPTED FROM ITS
VENDORS THE TIES WHICH THE RAILROAD COMPANY FOUND SATISFACTORY AND THEN
AND THERE SOLD AND DELIVERED THESE TIES TO THE RAILROAD COMPANY.  THESE
WERE LOCAL TRANSACTIONS,  - SALES AND DELIVERIES OF PARTICULAR TIES BY
RESPONDENT TO THE RAILROAD COMPANY IN INDIANA.  THE TRANSACTIONS WERE
NONE THE LESS INTRASTATE ACTIVITIES BECAUSE THE TIES THUS SOLD AND
DELIVERED WERE FORTHWITH LOADED ON THE RAILROAD CARS TO GO TO OHIO FOR
TREATMENT.  THE CONTRACT PROVIDING FOR THAT TREATMENT CALLED FOR THE
TREATMENT OF TIES TO BE DELIVERED BY THE RAILROAD COMPANY AT THE OHIO
PLANT, AND THE TIES BOUGHT BY THE RAILROAD COMPANY IN INDIANA, AS ABOVE
STATED, WERE TRANSPORTED AND DELIVERED BY THE RAILROAD COMPANY TO THAT
TREATMENT PLANT.  RESPONDENT DID NOT PAY THE FREIGHT FOR THAT
TRANSPORTATION AND THE CIRCUMSTANCE THAT THE BILLING WAS IN ITS NAME AS
CONSIGNOR IS NOT OF CONSEQUENCE IN THE LIGHT OF THE FACTS SHOWING THE
COMPLETED DELIVERY TO THE RAILROAD COMPANY IN INDIANA.  SEE SUPERIOR
OIL CO. V. MISSISSIPPI, 280 U.S. 390. 

WE FIND NO GROUND FOR SAYING THAT IN TAXING THE RECEIPTS FROM THESE
LOCAL TRANSACTIONS INDIANA HAS EXCEEDED ITS CONSTITUTIONAL AUTHORITY BY
TAXING INTERSTATE COMMERCE OR DISCRIMINATING AGAINST IT. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  SECTION 2 OF CHAPTER 50 OF THE ACTS OF 1933 OF INDIANA IS AS
FOLLOWS: 

"SEC. 2.  THERE IS HEREBY IMPOSED A TAX, MEASURED BY THE AMOUNT OR
VOLUME OF GROSS INCOME, AND IN THE AMOUNT TO BE DETERMINED BY THE
APPLICATION OF RATES ON SUCH GROSS INCOME AS HEREINAFTER PROVIDED. 
SUCH TAX SHALL BE LEVIED UPON THE ENTIRE GROSS INCOME OF ALL RESIDENTS
OF THE STATE OF INDIANA, AND UPON THE GROSS INCOME DERIVED FROM SOURCES
WITHIN THE STATE OF INDIANA, OF ALL PERSONS AND/OR COMPANIES, INCLUDING
BANKS, WHO ARE NOT RESIDENTS OF THE STATE OF INDIANA, BUT ARE ENGAGED
IN BUSINESS IN THIS STATE, OR WHO DERIVE GROSS INCOME FROM SOURCES
WITHIN THIS STATE, AND SHALL BE IN ADDITION TO ALL OTHER TAXES NOW OR
HEREAFTER IMPOSED WITH RESPECT TO PARTICULAR OCCUPATIONS AND/OR
ACTIVITIES.  SAID TAX SHALL APPLY TO, AND SHALL BE LEVIED AND COLLECTED
UPON, ALL GROSS INCOMES RECEIVED ON OR AFTER THE FIRST DAY OF MAY,
1933, WITH SUCH EXCEPTIONS AND LIMITATIONS AS MAY BE HEREINAFTER
PROVIDED."  11 BURNS INDIANA STATUTES, SEC. 64-2602. 

FN2  SEE MILES V. DEPARTMENT OF TREASURY, 209 IND. 172, 188; 199 N.E.
372; INDIANA CREOSOTING CO. V. MCNUTT, 210 IND. 656, 663, 664; 5 N.E.2D
310. 
..END :



SKIRIOTES V. FLORIDA, 313 U.S. 69 


NO. 658.  ARGUED MARCH 14, 1941.  - DECIDED APRIL 28, 1941.  - 144 FLA.
220 - 197 SO. 736, AFFIRMED. 


1.  A STATE HAS POWER TO GOVERN THE CONDUCT OF ITS CITIZENS UPON THE
HIGH SEAS WITH RESPECT TO MATTERS IN WHICH THE STATE HAS A LEGITIMATE
INTEREST AND WHERE THERE IS NO CONFLICT WITH ACTS OF CONGRESS.  P. 77. 

2.  THE FLORIDA STATUTE FORBIDDING THE USE OF DIVING EQUIPMENT FOR
THE PURPOSE OF "TAKING COMMERCIAL SPONGES FROM THE GULF OF MEXICO, OR
THE STRAITS OF FLORIDA OR OTHER WATERS WITHIN THE TERRITORIAL LIMITS OF
THE STATE OF FLORIDA" IS NOT IN CONFLICT WITH AN ACT OF CONGRESS WHICH
PROHIBITS TAKING, IN THOSE WATERS, OUTSIDE OF STATE TERRITORIAL LIMITS,
SPONGES OF LESS THAN A PARTICULAR SIZE.  P. 74. 

3.  THE FLORIDA REGULATION IS WITHIN THE COMPETENCY OF THE STATE,
REGARDLESS OF THE QUESTION OF TERRITORIAL LIMITS, WHEN APPLIED TO A
CITIZEN OF THE STATE FOUND TAKING SPONGES WITH DIVING EQUIPMENT AT A
POINT TWO MARINE LEAGUES OFF THE WEST SHORE-LINE OF THE STATE.  PP. 74,
79. 

SKIRIOTES V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

APPEAL FROM A JUDGMENT AFFIRMING A CONVICTION UNDER SEC. 5846 REV.
GEN. STATS.; SEC. 8087 COMP. GEN. LAWS, 1927, OF FLORIDA. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

APPELLANT, LAMBIRIS SKIRIOTES, WAS CONVICTED IN THE COUNTY COURT OF
PINELLAS COUNTY, FLORIDA, OF THE USE ON MARCH 8, 1938, OF DIVING
EQUIPMENT IN THE TAKING OF SPONGES FROM THE GULF OF MEXICO OFF THE
COAST OF FLORIDA IN VIOLATION OF A STATE STATUTE.  COMPILED GENERAL
LAWS OF FLORIDA (1927), SEC. 8087.  THE CONVICTION WAS AFFIRMED BY THE
SUPREME COURT OF FLORIDA (144 FLA. 220; 197 SO. 736) AND THE CASE COMES
HERE ON APPEAL. 

THE CASE WAS TRIED WITHOUT A JURY AND THE FACTS WERE STIPULATED.  THE
STATUTE, THE TEXT OF WHICH IS SET FORTH IN THE MARGIN,  FN1  FORBIDS
THE USE OF DIVING SUITS, HELMETS OR OTHER APPARATUS USED BY DEEP-SEA
DIVERS, FOR THE PURPOSE OF TAKING COMMERCIAL SPONGES FROM THE GULF OF
MEXICO, OR THE STRAITS OF FLORIDA OR OTHER WATERS WITHIN THE
TERRITORIAL LIMITS OF THAT STATE. 

THE CHARGE WAS THAT APPELLANT WAS USING THE FORBIDDEN APPARATUS "AT A
POINT APPROXIMATELY TWO MARINE LEAGUES FROM MEAN LOW TIDE ON THE WEST
SHORE LINE OF THE STATE OF FLORIDA AND WITHIN THE TERRITORIAL LIMITS OF
THE COUNTY OF PINELLAS."  THE STATE COURT HELD THAT THE WESTERN
BOUNDARY OF FLORIDA WAS FIXED BY THE STATE CONSTITUTION OF 1885 AT
THREE MARINE LEAGUES (NINE NAUTICAL MILES) FROM THE SHORE; THAT THIS
WAS THE SAME BOUNDARY WHICH HAD BEEN DEFINED BY THE STATE CONSTITUTION
OF 1868 TO WHICH THE ACT OF CONGRESS HAD REFERRED IN ADMITTING THE
STATE OF FLORIDA TO REPRESENTATION IN CONGRESS.  ACT OF JUNE 25, 1868,
15 STAT. 73.  THE STATE COURT SUSTAINED THE RIGHT OF THE STATE TO FIX
ITS MARINE BOUNDARY WITH THE APPROVAL OF CONGRESS, AND CONCLUDED THAT
THE STATUTE WAS VALID IN ITS APPLICATION TO APPELLANT'S CONDUCT. 

BY MOTIONS TO QUASH THE INFORMATION AND IN ARREST OF JUDGMENT,
APPELLANT CONTENDED THAT THE CONSTITUTION OF FLORIDA FIXING THE
BOUNDARY OF THE STATE AND THE STATUTE UNDER WHICH HE WAS PROSECUTED
VIOLATED THE CONSTITUTION AND TREATIES OF THE UNITED STATES; THAT THE
CRIMINAL JURISDICTION OF THE COURTS OF FLORIDA COULD NOT EXTEND BEYOND
THE INTERNATIONAL BOUNDARIES OF THE UNITED STATES AND HENCE COULD NOT
EXTEND "TO A GREATER DISTANCE THAN ONE MARINE LEAGUE FROM MEAN LOW
TIDE" ON THE MAINLAND OF THE STATE AND ADJACENT ISLANDS INCLUDED WITHIN
ITS TERRITORY. 

IN SUPPORT OF THIS CONTENTION APPELLANT INVOKED SEVERAL PROVISIONS OF
THE CONSTITUTION OF THE UNITED STATES, TO WIT, ARTICLE I, SEC. 10,
CLAUSES 1 AND 3, ARTICLE II, SEC. 2, CLAUSE 2, ARTICLE VI, AND THE
FOURTEENTH AMENDMENT.  APPELLANT ALSO RELIED UPON NUMEROUS TREATIES OF
THE UNITED STATES, INCLUDING THE TREATY WITH SPAIN OF FEBRUARY 22,
1919, AND THE TREATIES WITH SEVERAL COUNTRIES, SIGNED BETWEEN 1924 AND
1930, INCLUSIVE, FOR THE PREVENTION OF SMUGGLING OF INTOXICATING
LIQUORS.  THERE WERE ALSO INTRODUCED IN EVIDENCE DIPLOMATIC
CORRESPONDENCE AND EXTRACTS FROM STATEMENTS OF OUR SECRETARIES OF STATE
WITH RESPECT TO THE LIMITS OF THE TERRITORIAL WATERS OF THE UNITED
STATES.  THESE CONTENTIONS WERE PRESENTED TO THE HIGHEST COURT OF THE
STATE AND WERE OVERRULED. 

THE FIRST POINT OF INQUIRY IS WITH RESPECT TO THE STATUS OF
APPELLANT.  THE STIPULATION OF FACTS STATES THAT APPELLANT "IS BY TRADE
AND OCCUPATION A DEEP-SEA DIVER ENGAGED IN SPONGE FISHERY, HIS
RESIDENCE ADDRESS BEING AT TARPON SPRINGS, PINELLAS COUNTY, FLORIDA,"
AND THAT HE "HAS BEEN ENGAGED IN THIS BUSINESS FOR THE PAST SEVERAL
YEARS."  APPELLANT HAS NOT ASSERTED OR ATTEMPTED TO SHOW THAT HE IS NOT
A CITIZEN OF THE UNITED STATES, OR THAT HE IS A CITIZEN OF ANY STATE
OTHER THAN FLORIDA, OR THAT HE IS A NATIONAL OF ANY FOREIGN COUNTRY. 
IT IS ALSO SIGNIFICANT THAT IN HIS BRIEF IN THIS COURT, REPLYING TO THE
STATE'S ARGUMENT THAT AS A CITIZEN OF FLORIDA HE IS NOT IN A POSITION
TO QUESTION THE BOUNDARIES OF THE STATE AS DEFINED BY ITS CONSTITUTION,
APPELLANT HAS NOT CHALLENGED THE STATEMENT AS TO HIS CITIZENSHIP, WHILE
HE DOES CONTEST THE LEGAL CONSEQUENCES WHICH THE STATE INSISTS FLOW
FROM THAT FACT. 

IT FURTHER APPEARS THAT UPON APPELLANT'S ARREST FOR VIOLATION OF THE
STATUTE, HE SUED OUT A WRIT OF HABEAS CORPUS IN THE DISTRICT COURT OF
THE UNITED STATES AND WAS RELEASED, BUT THIS DECISION WAS REVERSED BY
THE CIRCUIT COURT OF APPEALS.  CUNNINGHAM V. SKIRIOTES, 101 F.2D 635. 
THAT COURT THOUGHT THAT THE QUESTION OF THE STATUTE'S VALIDITY SHOULD
BE DETERMINED IN ORDERLY PROCEDURE BY THE STATE COURT SUBJECT TO
APPROPRIATE REVIEW BY THIS COURT, BUT THE COURT EXPRESSED DOUBT AS TO
THE RIGHT OF THE APPELLANT TO RAISE THE QUESTION, SAYING:  "SKIRIOTES
STATES HE IS A CITIZEN OF THE UNITED STATES RESIDENT IN FLORIDA, AND
THEREFORE IS A CITIZEN OF FLORIDA.  HIS BOAT, FROM WHICH HIS DIVING
OPERATIONS WERE CONDUCTED, WE MAY ASSUME WAS A FLORIDA VESSEL, CARRYING
FLORIDA LAW WITH HER, BUT OF COURSE AS MODIFIED BY SUPERIOR FEDERAL
LAW."  ID., PP. 636, 637. 

IN THE LIGHT OF APPELLANT'S STATEMENTS TO THE FEDERAL COURT,
JUDICIALLY RECITED, AND UPON THE PRESENT RECORD SHOWING HIS LONG
RESIDENCE IN FLORIDA AND THE ABSENCE OF A CLAIM OF ANY OTHER DOMICILE
OR OF ANY FOREIGN ALLEGIANCE, WE ARE JUSTIFIED IN ASSUMING THAT HE IS A
CITIZEN OF THE UNITED STATES AND OF FLORIDA.  CERTAINLY APPELLANT HAS
NOT SHOWN HIMSELF ENTITLED TO ANY GREATER RIGHTS THAN THOSE WHICH A
CITIZEN OF FLORIDA POSSESSES. 

IN THESE CIRCUMSTANCES, NO QUESTION OF INTERNATIONAL LAW, OR OF THE
EXTENT OF THE AUTHORITY OF THE UNITED STATES IN ITS INTERNATIONAL
RELATIONS, IS PRESENTED.  INTERNATIONAL LAW IS A PART OF OUR LAW AND AS
SUCH IS THE LAW OF ALL STATES OF THE UNION (THE PAQUETE HABANA, 175
U.S. 677, 700), BUT IT IS A PART OF OUR LAW FOR THE APPLICATION OF ITS
OWN PRINCIPLES, AND THESE ARE CONCERNED WITH INTERNATIONAL RIGHTS AND
DUTIES AND NOT WITH DOMESTIC RIGHTS AND DUTIES.  THE ARGUMENT BASED ON
THE LIMITS OF THE TERRITORIAL WATERS OF THE UNITED STATES, AS THESE ARE
DESCRIBED BY THIS COURT IN CUNARD STEAMSHIP CO. V. MELLON, 262 U.S.
100, 122, AND IN DIPLOMATIC CORRESPONDENCE AND STATEMENTS OF THE
POLITICAL DEPARTMENT OF OUR GOVERNMENT, IS THUS BESIDE THE POINT.  FOR,
ASIDE FROM THE QUESTION OF THE EXTENT OF CONTROL WHICH THE UNITED
STATES MAY EXERT IN THE INTEREST OF SELF-PROTECTION OVER WATERS NEAR
ITS BORDERS, ALTHOUGH BEYOND ITS TERRITORIAL LIMITS,  FN2  THE UNITED
STATES 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.  WITH RESPECT TO SUCH AN EXERCISE OF AUTHORITY THERE IS NO
QUESTION OF INTERNATIONAL LAW,  FN3  BUT SOLELY OF THE PURPORT OF THE
MUNICIPAL LAW WHICH ESTABLISHES THE DUTY OF THE CITIZEN IN RELATION TO
HIS OWN GOVERNMENT.  AMERICAN BANANA CO. V. UNITED FRUIT CO., 213 U.S.
347, 355, 356; UNITED STATES V. BOWMAN, 260 U.S. 94; COOK V. TAIT, 265
U.S. 47; BLACKMER V. UNITED STATES, 284 U.S. 421, 437.  THUS, A
CRIMINAL STATUTE DEALING WITH ACTS THAT ARE DIRECTLY INJURIOUS TO THE
GOVERNMENT, AND ARE CAPABLE OF PERPETRATION WITHOUT REGARD TO
PARTICULAR LOCALITY, IS TO BE CONSTRUED AS APPLICABLE TO CITIZENS OF
THE UNITED STATES UPON THE HIGH SEAS OR IN A FOREIGN COUNTRY, THOUGH
THERE BE NO EXPRESS DECLARATION TO THAT EFFECT.  UNITED STATES V.
BOWMAN, SUPRA,  FN4  THE BOWMAN CASE AROSE UNDER SEC. 35 OF THE
CRIMINAL CODE.  18 U.S.C., SEC. 80.  ANOTHER ILLUSTRATION IS FOUND IN
THE STATUTE RELATING TO CRIMINAL CORRESPONDENCE WITH FOREIGN
GOVERNMENTS.  18 U.S.C., SEC. 5.  IN COOK V. TAIT, SUPRA, WE HELD THAT
CONGRESS COULD IMPOSE A TAX UPON INCOME RECEIVED BY A CITIZEN OF THE
UNITED STATES WHO WAS DOMICILED IN A FOREIGN COUNTRY ALTHOUGH THE
INCOME WAS DERIVED FROM PROPERTY THERE LOCATED.  IN BLACKMER V. UNITED
STATES, SUPRA, THE VALIDITY OF AN ACT OF CONGRESS REQUIRING A CITIZEN
OF THE UNITED STATES RESIDING IN FRANCE TO RETURN TO THIS COUNTRY FOR
THE PURPOSE OF GIVING TESTIMONY AND THE SERVICE OF A SUBPOENA UPON HIM
PERSONALLY BY AN AMERICAN CONSUL WERE SUSTAINED. 

FOR THE SAME REASON, NONE OF THE TREATIES WHICH APPELLANT CITES ARE
APPLICABLE TO HIS CASE.  HE IS NOT IN A POSITION TO INVOKE THE RIGHTS
OF OTHER GOVERNMENTS OR OF THE NATIONALS OF OTHER COUNTRIES.  IF A
STATUTE SIMILAR TO THE ONE IN QUESTION HAD BEEN ENACTED BY THE CONGRESS
FOR THE PROTECTION OF THE SPONGE FISHERY OFF THE COASTS OF THE UNITED
STATES THERE WOULD APPEAR TO BE NO GROUND UPON WHICH APPELLANT COULD
CHALLENGE ITS VALIDITY. 

THE QUESTION THEN IS WHETHER SUCH AN ENACTMENT, AS APPLIED TO THOSE
WHO ARE SUBJECT TO THE JURISDICTION OF FLORIDA, IS BEYOND THE
COMPETENCY OF THAT STATE.  WE HAVE NOT BEEN REFERRED TO ANY LEGISLATION
OF CONGRESS WITH WHICH THE STATE STATUTE CONFLICTS.  BY THE ACT OF
AUGUST 15, 1914 FN5  (38 STAT. 692, 16 U.S.C., SEC. 781), CONGRESS HAS
PROHIBITED "ANY CITIZEN OF THE UNITED STATES, OR PERSON OWING DUTY OF
OBEDIENCE TO THE LAWS OF THE UNITED STATES" FROM TAKING "IN THE WATERS
OF THE GULF OF MEXICO OR THE STRAITS OF FLORIDA OUTSIDE OF STATE
TERRITORIAL LIMITS" ANY COMMERCIAL SPONGES WHICH ARE LESS THAN A GIVEN
SIZE, OR TO POSSESS SUCH SPONGES OR OFFER THEM FOR SALE.  BUT THAT ACT
IS LIMITED TO THE PARTICULAR MATTER OF SIZE AND DOES NOT DEAL WITH THE
DIVERS' APPARATUS WHICH IS THE PARTICULAR SUBJECT OF THE FLORIDA
STATUTE.  ACCORDING TO FAMILIAR PRINCIPLES, CONGRESS HAVING OCCUPIED
BUT A LIMITED FIELD, THE AUTHORITY OF THE STATE TO PROTECT ITS
INTERESTS BY ADDITIONAL OR SUPPLEMENTARY LEGISLATION OTHERWISE VALID IS
NOT IMPAIRED.  REID V. COLORADO, 187 U.S. 137, 147, 150; SAVAGE V.
JONES, 225 U.S. 501, 533; MINTZ V. BALDWIN, 289 U.S. 346, 350; KELLY V.
WASHINGTON, 302 U.S. 1, 10.  IT IS ALSO CLEAR THAT FLORIDA HAS AN
INTEREST IN THE PROPER MAINTENANCE OF THE SPONGE FISHERY AND THAT THE
STATUTE SO FAR AS APPLIED TO CONDUCT WITHIN THE TERRITORIAL WATERS OF
FLORIDA, IN THE ABSENCE OF CONFLICTING FEDERAL LEGISLATION, IS WITHIN
THE POLICE POWER OF THE STATE.  MANCHESTER V. MASSACHUSETTS, 139 U.S.
240, 266.  SEE, ALSO, COOLEY V. BOARD OF PORT WARDENS, 12 HOW.  299;
MORGAN'S S.S. CO. V. LOUISIANA, 118 U.S. 455; COMPAGNIE FRANCAISE V.
BOARD OF HEALTH, 186 U.S. 380; MINNESOTA RATE CASES, 230 U.S. 352, 402
410; CALIFORNIA V. THOMPSON, POST, P. 109.  NOR IS THERE ANY REPUGNANCE
IN THE PROVISIONS OF THE STATUTE TO THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.  THE STATUTE APPLIES EQUALLY TO ALL PERSONS
WITHIN THE JURISDICTION OF THE STATE. 

APPELLANT'S ATTACK THUS CENTERS IN THE CONTENTION THAT THE STATE HAS
TRANSCENDED ITS POWER SIMPLY BECAUSE THE STATUTE HAS BEEN APPLIED TO
HIS OPERATIONS INIMICAL TO ITS INTERESTS OUTSIDE THE TERRITORIAL WATERS
OF FLORIDA.  THE STATE DENIES THIS, POINTING TO ITS BOUNDARIES AS
DEFINED BY THE STATE CONSTITUTION OF 1868, WHICH THE STATE INSISTS HAD
THE APPROVAL OF CONGRESS AND IN WHICH THERE HAS BEEN ACQUIESCENCE OVER
A LONG PERIOD.  SEE LIPSCOMB V. GIALOURAKIS, 101 FLA. 1130, 1134, 1135;
133 SO. 104; POPE V. BLANTON, 10 F.SUPP.  18, 22.  FN6  APPELLANT
ARGUES THAT CONGRESS BY THE ACT OF JUNE 25, 1868,  FN7  TO WHICH THE
STATE COURT REFERS, DID NOT SPECIFICALLY ACCEPT OR APPROVE ANY
BOUNDARIES AS SET UP IN THE STATE CONSTITUTION BUT MERELY ADMITTED
FLORIDA AND THE OTHER STATES MENTIONED TO REPRESENTATION IN CONGRESS. 
AND, FURTHER, THAT IF CONGRESS CAN BE REGARDED AS HAVING APPROVED THE
BOUNDARIES DEFINED BY THE STATE CONSTITUTION, THESE HAVE BEEN CHANGED
BY THE TREATIES WITH FOREIGN COUNTRIES RELATING TO THE SMUGGLING OF
INTOXICATING LIQUORS, IN WHICH THE PRINCIPLE OF THE THREE-MILE LIMIT
WAS DECLARED. 

BUT PUTTING ASIDE THE TREATIES, WHICH APPELLANT HAS NO STANDING TO
INVOKE, WE DO NOT FIND IT NECESSARY TO RESOLVE THE CONTENTIONS AS TO
THE INTERPRETATION AND EFFECT OF THE ACT OF CONGRESS OF 1868.  EVEN IF
IT WERE ASSUMED THAT THE LOCUS OF THE OFFENSE WAS OUTSIDE THE
TERRITORIAL WATERS OF FLORIDA, IT WOULD NOT FOLLOW THAT THE STATE COULD
NOT PROHIBIT ITS OWN CITIZENS FROM THE USE OF THE DESCRIBED DIVERS'
EQUIPMENT AT THAT PLACE.  NO QUESTION AS TO THE AUTHORITY OF THE UNITED
STATES OVER THESE WATERS, OR OVER THE SPONGE FISHERY, IS HERE
INVOLVED.  NO RIGHT OF A CITIZEN OF ANY OTHER STATE IS HERE ASSERTED. 
THE QUESTION IS SOLELY BETWEEN APPELLANT AND HIS OWN STATE.  THE
PRESENT CASE THUS DIFFERS FROM THAT OF MANCHESTER V. MASSACHUSETTS,
SUPRA, FOR THERE THE REGULATION BY MASSACHUSETTS OF THE MENHADEN
FISHERIES IN BUZZARDS BAY WAS SOUGHT TO BE ENFORCED AS AGAINST CITIZENS
OF RHODE ISLAND (ID., P. 242) AND IT WAS IN THAT RELATION THAT THE
QUESTION WHETHER BUZZARDS BAY COULD BE INCLUDED WITHIN THE TERRITORIAL
LIMITS OF MASSACHUSETTS WAS PRESENTED AND WAS DECIDED IN FAVOR OF THAT
COMMONWEALTH.  THE QUESTION AS TO THE EXTENT OF THE AUTHORITY OF A
STATE OVER ITS OWN CITIZENS ON THE HIGH SEAS WAS NOT INVOLVED. 

IF THE UNITED STATES MAY CONTROL THE CONDUCT OF ITS CITIZENS UPON THE
HIGH SEAS, WE SEE NO REASON WHY THE STATE OF FLORIDA MAY NOT LIKEWISE
GOVERN THE CONDUCT OF ITS CITIZENS UPON THE HIGH SEAS WITH RESPECT TO
MATTERS IN WHICH THE STATE HAS A LEGITIMATE INTEREST AND WHERE THERE IS
NO CONFLICT WITH ACTS OF CONGRESS.  SAVE FOR THE POWERS COMMITTED BY
THE CONSTITUTION TO THE UNION, THE STATE OF FLORIDA HAS RETAINED THE
STATUS OF A SOVEREIGN.  FLORIDA WAS ADMITTED TO THE UNION "ON EQUAL
FOOTING WITH THE ORIGINAL STATES, IN ALL RESPECTS WHATSOEVER."  FN8
AND THE POWER GIVEN TO CONGRESS BY SEC. 3 OF ARTICLE IV OF THE
CONSTITUTION TO ADMIT NEW STATES RELATES ONLY TO SUCH STATES AS ARE
EQUAL TO EACH OTHER "IN POWER, DIGNITY AND AUTHORITY, EACH COMPETENT TO
EXERT THAT RESIDUUM OF SOVEREIGNTY NOT DELEGATED TO THE UNITED STATES
BY THE CONSTITUTION ITSELF."  COYLE V. SMITH, 221 U.S. 559, 567. 
THERE IS NOTHING NOVEL IN THE DOCTRINE THAT A STATE MAY EXERCISE ITS
AUTHORITY OVER ITS CITIZENS ON THE HIGH SEAS.  THAT DOCTRINE WAS
EXPOUNDED IN THE CASE OF THE HAMILTON, 207 U.S. 398.  THERE, A STATUTE
OF DELAWARE GIVING DAMAGES FOR DEATH WAS HELD TO BE A VALID EXERCISE OF
THE POWER OF THE STATE, EXTENDING TO THE CASE OF A CITIZEN OF THAT
STATE WRONGFULLY KILLED ON THE HIGH SEAS IN A VESSEL BELONGING TO A
DELAWARE CORPORATION BY THE NEGLIGENCE OF ANOTHER VESSEL ALSO BELONGING
TO A DELAWARE CORPORATION.  IF IT BE SAID THAT THE CASE WAS ONE OF
VESSELS AND FOR THE RECOGNITION OF THE FORMULA THAT A VESSEL AT SEA IS
REGARDED AS PART OF THE TERRITORY OF THE STATE, THAT PRINCIPLE WOULD
ALSO BE APPLICABLE HERE.  THERE IS NO SUGGESTION THAT APPELLANT DID NOT
CONDUCT HIS OPERATIONS BY MEANS OF FLORIDA BOATS.  THAT HE DID SO
CONDUCT THEM WAS ASSUMED BY THE CIRCUIT COURT OF APPEALS IN DEALING
WITH APPELLANT'S ARREST IN CUNNINGHAM V. SKIRIOTES, SUPRA, AND THAT
REASONABLE INFERENCE HAS NOT IN ANY WAY BEEN REBUTTED HERE. 

BUT THE PRINCIPLE RECOGNIZED IN THE HAMILTON, SUPRA, WAS NOT LIMITED
BY THE CONCEPTION OF VESSELS AS FLOATING TERRITORY.  THERE WAS
RECOGNITION OF THE BROADER PRINCIPLE OF THE POWER OF A SOVEREIGN STATE
TO GOVERN THE CONDUCT OF ITS CITIZENS ON THE HIGH SEAS.  THE COURT
OBSERVED THAT "APART FROM THE SUBORDINATION OF THE STATE OF DELAWARE TO
THE CONSTITUTION OF THE UNITED STATES" THERE WAS NO DOUBT OF ITS POWER
TO MAKE ITS STATUTE APPLICABLE TO THE CASE AT BAR.  AND THE BASIC
REASON WAS, AS THE COURT PUT IT, THAT WHEN SO APPLIED "THE STATUTE
GOVERNS THE RECIPROCAL LIABILITIES OF TWO CORPORATIONS, EXISTING ONLY
BY VIRTUE OF THE LAWS OF DELAWARE, AND PERMANENTLY WITHIN ITS
JURISDICTION, FOR THE CONSEQUENCES OF CONDUCT SET IN MOTION BY THEM
THERE, OPERATING OUTSIDE THE TERRITORY OF THE STATE, IT IS TRUE, BUT
WITHIN NO OTHER TERRITORIAL JURISDICTION."  IF CONFINED TO
CORPORATIONS, "THE STATE WOULD HAVE POWER TO ENFORCE ITS LAW TO THE
EXTENT OF THEIR PROPERTY IN EVERY CASE."  BUT THE COURT WENT ON TO SAY
THAT "THE SAME AUTHORITY WOULD EXIST AS TO CITIZENS DOMICILED WITHIN
THE STATE, EVEN WHEN PERSONALLY ON THE HIGH SEAS, AND NOT ONLY COULD BE
ENFORCED BY THE STATE IN CASE OF THEIR RETURN, WHICH THEIR DOMICIL BY
ITS VERY MEANING PROMISED, BUT IN PROPER CASES WOULD BE RECOGNIZED IN
OTHER JURISDICTIONS BY THE COURTS OF OTHER STATES."  THAT IS, "THE BARE
FACT OF THE PARTIES BEING OUTSIDE THE TERRITORY IN A PLACE BELONGING TO
NO OTHER SOVEREIGN WOULD NOT LIMIT THE AUTHORITY OF THE STATE, AS
ACCEPTED BY CIVILIZED THEORY."  THE HAMILTON, SUPRA, P. 403.  WHEN ITS
ACTION DOES NOT CONFLICT WITH FEDERAL LEGISLATION, THE SOVEREIGN
AUTHORITY OF THE STATE OVER THE CONDUCT OF ITS CITIZENS UPON THE HIGH
SEAS IS ANALOGOUS TO THE SOVEREIGN AUTHORITY OF THE UNITED STATES OVER
ITS CITIZENS IN LIKE CIRCUMSTANCES. 

WE ARE NOT UNMINDFUL OF THE FACT THAT THE STATUTORY PROHIBITION
REFERS TO THE "GULF OF MEXICO, OR THE STRAITS OF FLORIDA OR OTHER
WATERS WITHIN THE TERRITORIAL LIMITS OF THE STATE OF FLORIDA."  BUT WE
ARE DEALING WITH THE QUESTION OF THE VALIDITY OF THE STATUTE AS APPLIED
TO APPELLANT FROM THE STANDPOINT OF STATE POWER.  THE STATE HAS APPLIED
IT TO APPELLANT AT THE PLACE OF HIS OPERATIONS AND IF THE STATE HAD
POWER TO PROHIBIT THE DESCRIBED CONDUCT OF ITS CITIZEN AT THAT PLACE WE
ARE NOT CONCERNED FROM THE STANDPOINT OF THE FEDERAL CONSTITUTION WITH
THE RULING OF THE STATE COURT AS TO THE EXTENT OF TERRITORIAL WATERS. 
THE QUESTION BEFORE US MUST BE CONSIDERED IN THE LIGHT OF THE TOTAL
POWER THE STATE POSSESSES (CASTILLO V. MCCONNICO, 168 U.S. 674, 684;
HEBERT V. LOUISIANA, 272 U.S. 312, 316; UNITED GAS CO. V. TEXAS, 303
U.S. 123, 142), AND SO CONSIDERED WE FIND NO GROUND FOR HOLDING THAT
THE ACTION OF THE STATE WITH RESPECT TO APPELLANT TRANSCENDED THE
LIMITS OF THAT POWER. 

THE JUDGMENT OF THE SUPREME COURT OF FLORIDA IS AFFIRMED. 

FN1  THE STATUTE, ORIGINALLY SEC. 4 OF CHAPTER 7389 OF THE LAWS OF
FLORIDA OF 1917, CARRIED FORWARD AS SEC. 5846 OF THE REVISED GENERAL
STATUTES OF FLORIDA AND AS SEC. 8087 OF THE COMPILED GENERAL LAWS OF
1927, IS AS FOLLOWS: 

"IT SHALL BE UNLAWFUL FOR ANY PERSON, PERSONS, FIRM OR CORPORATION TO
MAINTAIN AND USE FOR THE PURPOSE OF CATCHING OR TAKING COMMERCIAL
SPONGES FROM THE GULF OF MEXICO, OR THE STRAITS OF FLORIDA OR OTHER
WATERS WITHIN THE TERRITORIAL LIMITS OF THE STATE OF FLORIDA, DIVING
SUITS, HELMETS OR OTHER APPARATUS USED BY DEEP-SEA DIVERS. 

"ANYONE VIOLATING ANY OF THE PROVISIONS OF THIS SECTION SHALL BE
FINED IN THE SUM NOT EXCEEDING FIVE HUNDRED DOLLARS OR BY IMPRISONMENT
NOT EXCEEDING ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT."  SEE
LIPSCOMB V. GIALOURAKIS, 101 FLA. 1130; 133 SO. 104. 

FN2  SEE JESSUP, "THE LAW OF TERRITORIAL WATERS AND MARITIME
JURISDICTION," INTRODUCTORY CHAPTER, P. XXXIII, ALSO PP. 9 ET SEQ., 80
ET SEQ.; CHURCH V. HUBBART, 2 CRANCH 187; THE GRACE AND RUBY, 283 F.
475; THE HENRY L. MARSHALL, 286 F. 260, 292 F. 486; UNITED STATES V.
FORD, 3 F.2D 643; 40 HARV. L.R. 1. 

FN3  OPPENHEIM, INTERNATIONAL LAW, 4TH ED., VOL. I, SEC. 145, P. 281;
STORY, CONFLICT OF LAWS, 8TH ED., SEC. 540, P. 755; MOORE'S
INTERNATIONAL LAW DIGEST, VOL. II, PP. 255, 256; HYDE, INTERNATIONAL
LAW, VOL. I, SEC. 240, P. 424; BORCHARD, DIPLOMATIC PROTECTION OF
CITIZENS ABROAD, SEC. 13, PP. 21, 22. 

FN4  AS TO VENUE OF PROSECUTIONS FOR OFFENSES COMMITTED UPON THE HIGH
SEAS OR ELSEWHERE OUT OF THE JURISDICTION OF ANY PARTICULAR STATE OR
DISTRICT SEE 28 U.S.C., SEC. 102. 

FN5  THIS ACT REPEALED THE ACT OF JUNE 20, 1906, 34 STAT. 313, WHICH
WAS BEFORE THIS COURT IN THE CASE OF THE ABBY DODGE, 223 U.S. 166. 

FN6  THE BILL IN THIS CASE WAS DISMISSED BECAUSE OF THE ABSENCE OF
THE JURISDICTIONAL AMOUNT.  POPE V. BLANTON, 299 U.S. 521. 

FN7  15 STAT. 73. 

FN8  ACT OF MARCH 3, 1845, 5 STAT. 742. 
..END :









MITCHELL V. UNITED STATES, 313 U.S. 80 


NO. 577.  ARGUED MARCH 13, 1941.  - DECIDED APRIL 28, 1941.  -
REVERSED. 


1.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DISMISSING A
COMPLAINT AGAINST AN INTERSTATE CARRIER BY AN INDIVIDUAL, CHARGING
UNJUST AND UNLAWFUL DISCRIMINATION IN THE MATTER OF FACILITIES AFFORDED
HIM AS A PASSENGER ON AN INTERSTATE JOURNEY, IS REVIEWABLE, THOUGH
NEGATIVE IN FORM.  P. 92. 

2.  THE RIGHT OF A COLORED CITIZEN TO COMPLAIN TO THE INTERSTATE
COMMERCE COMMISSION OF DISCRIMINATION AGAINST HIM, BECAUSE OF HIS RACE,
IN THE MATTER OF FACILITIES AFFORDED ON AN INTERSTATE RAILROAD JOURNEY,
DOES NOT DEPEND UPON WHETHER HE INTENDS TO MAKE A SIMILAR JOURNEY IN
THE FUTURE.  P. 93. 

3.  IN THE CASE OF A PASSENGER, AS IN THE CASE OF A SHIPPER, IT IS
WITHIN THE AUTHORITY OF THE COMMISSION TO DETERMINE WHETHER A
DISCRIMINATION IS UNJUST AND UNLAWFUL, UPON INQUIRY INTO THE PARTICULAR
FACTS AND THE PRACTICE OF THE CARRIER IN THE PARTICULAR RELATION.  P.
93. 

4.  BECAUSE OF HIS RACE, A COLORED MAN WHO HAD PAID A FIRST-CLASS
FARE FOR AN INTERSTATE JOURNEY, AND WHO OFFERED TO PAY THE PROPER
CHARGE FOR AN AVAILABLE SEAT IN A PULLMAN CAR, WAS COMPELLED, IN
ACCORDANCE WITH CUSTOM, TO LEAVE THAT CAR AND RIDE IN A SECOND-CLASS
CAR, AND WAS THUS DENIED THE STANDARD CONVENIENCES AFFORDED FIRST-CLASS
PASSENGERS.  HELD: 

(1)  THE DISCRIMINATION WAS ESSENTIALLY UNJUST AND VIOLATED THE
INTERSTATE COMMERCE ACT.  P. 94. 

(2)  PARAGRAPH 1 OF SEC. 2 OF THE ACT, WHICH DECLARES IT UNLAWFUL FOR
ANY CARRIER TO SUBJECT ANY PARTICULAR PERSON TO ANY UNDUE OR
UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT WHATSOEVER,
APPLIES TO DISCRIMINATION AGAINST COLORED PASSENGERS BECAUSE OF THEIR
RACE, AND REQUIRES THAT COLORED PERSONS WHO BUY FIRST-CLASS TICKETS
SHALL BE FURNISHED WITH ACCOMMODATIONS EQUAL IN COMFORTS AND
CONVENIENCES TO THOSE AFFORDED TO FIRST-CLASS WHITE PASSENGERS.  P.
95. 

(3)  THE FACT THAT THERE WAS BUT ONE INSTANCE OF DISCRIMINATION IN
THE CASE OF THE COMPLAINANT AFFORDS NO REASON WHY SUCH DISCRIMINATION
SHOULD NOT BE FORBIDDEN FOR THE FUTURE.  P. 96. 

(4)  THE FACT THAT THERE IS COMPARATIVELY LITTLE DEMAND FOR FIRST
CLASS ACCOMMODATIONS FOR COLORED PEOPLE CAN NOT JUSTIFY SUCH
DISCRIMINATION.  P. 97. 

MITCHELL V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH
DISMISSED FOR WANT OF JURISDICTION A SUIT TO SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION.  229 I.C.C. 703. 

THE APPELLANT WAS ENGAGED IN THROUGH INTERSTATE TRAVEL, TO WHICH THE
SEPARATE COACH LAW OF ARKANSAS WAS INAPPLICABLE.  MCCABE V. ATCHISON,
T. & S.F. RY., 235 U.S. 151, 160; S.C., 186 F. 966.  SEE, ALSO,
LOUISVILLE, N.O. & T. RY. CO. V. MISSISSIPPI, 133 U.S. 587, 590;
CHESAPEAKE & OHIO RY. CO. V. KENTUCKY, 179 U.S. 388, 391; HINES V.
DAVIDOWITZ, 312 U.S. 52. 

THE COMMISSION DISREGARDED THE LAW AS LAID DOWN BY THIS COURT AND
CONSISTENTLY FOLLOWED BY ALL FEDERAL COURTS, THAT THE SEPARATE COACH
LAWS OF THE SEVERAL STATES DO NOT APPLY TO INTERSTATE COMMERCE.  HART
V. STATE, 60 A. 457; HUFF V. NORFOLK & SOUTHERN RY. CO., 171 N.C. 203;
WASHINGTON, B. & A. ELECTRIC R. CO. V. WALLER, 289 F. 598, 600. 

SMITH V. TENNESSEE, 100 TENN. 494, AND SOUTHERN RY. CO. V. NORTON,
112 MISS.  302, CITED BY THE DEFENDANTS, HAVE NOT BEEN FOLLOWED OR
APPROVED. 

THE POWER TO REGULATE COMMERCE EMBRACES ALL THE INSTRUMENTS BY WHICH
SUCH COMMERCE MAY BE CONDUCTED; AND WHEN THE SUBJECT TO WHICH THE POWER
APPLIES IS NATIONAL IN ITS CHARACTER, OR ADMITS OF UNIFORMITY OF
REGULATION, THE POWER IS EXCLUSIVE OF ALL STATE AUTHORITY. 

THE RIGHT OF APPELLANT TO FIRST-CLASS ACCOMMODATIONS AND FACILITIES
DOES NOT DEPEND UPON THE VOLUME OF TRAFFIC.  MCCABE V. ATCHISON, T. &
S.F. RY. CO., 235 U.S. 151, 161, 162; S.C., 186 F. 966, 977; BUCHANAN
V. WARLEY, 245 U.S. 60, 74-80; MISSOURI EX REL. GAINES V. CANADA, 305
U.S. 337, 350; UNITED STATES V. CHICAGO HEIGHTS TRUCKING CO., 310 U.S.
344, 351, 352. 

THE RECORD SHOWS THAT THE PERSONAL CONSTITUTIONAL RIGHTS OF THE
APPELLANT WERE RUTHLESSLY VIOLATED.  PERSONAL RIGHTS INCLUDE PERSONAL
LIBERTY.  PERSONAL RIGHTS INCLUDE THE EQUAL PROTECTION OF THE LAWS AND
THE RIGHT TO CONTRACT FOR FIRST-CLASS SERVICES, ACCOMMODATIONS AND
FACILITIES IN INTERSTATE COMMERCE, AND THE RIGHT TO ENFORCE THE
CONTRACT. 

MANY DECISIONS OF THE COMMISSION CONDEMN SUCH DISCRIMINATION AS WAS
PRACTICED IN THIS CASE. 

THE INTERSTATE COMMERCE ACT PROVIDES A COMPREHENSIVE SYSTEM FOR THE
REGULATION OF INTERSTATE COMMERCE, WHICH EXCLUDES THE APPLICATION OF
LOCAL SEPARATE COACH LAWS. 

CONGRESS HAS PROHIBITED DISCRIMINATION, UNDUE PREJUDICE, UNREASONABLE
AND UNDUE ADVANTAGE AND PREFERENCE IN RELATION TO CITIZENS TRAVELING AS
INTERSTATE PASSENGERS. 

THE APPELLANT HAVING SUFFERED DIRECT INJURY TO HIS RIGHTS GUARANTEED
BY THE CONSTITUTION AND LAWS MADE PURSUANT THERETO HAS THE RIGHT TO
PROSECUTE THESE PROCEEDINGS. 

CUSTOM DOES NOT JUSTIFY CONTINUED UNJUST DISCRIMINATION. 

REFUND OF MONEY IS NOT ADEQUATE REDRESS FOR THE WRONGFUL EXCLUSION. 
BROWN V. MEMPHIS & C. RY. CO., 7 F. 51. 

THE COURT SHOULD TAKE JUDICIAL NOTICE OF DISCRIMINATION AGAINST
COLORED PEOPLE IN THE LACK OF FACILITIES ON INTERSTATE RAILROADS.  OHIO
BELL TEL. CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292, 301. 

APPELLANT HAS FAILED TO SHOW THAT HE HAS LEGAL INTEREST IN THE
ACCOMMODATIONS TO BE FURNISHED IN THE FUTURE BY THE ROCK ISLAND ON ITS
TRAIN NO. 45.  ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125. 

APPELLANT'S CASE BEFORE THE COMMISSION RELATED SOLELY TO THE
ACCOMMODATIONS FURNISHED TO HIM ON A SINGLE TRIP FROM CHICAGO TO HOT
SPRINGS.  HE NEITHER ALLEGED NOR SUBMITTED EVIDENCE TO SHOW THAT HE
WILL HAVE OCCASION OR INTENDS TO MAKE A SIMILAR TRIP IN THE FUTURE.  IN
THESE CIRCUMSTANCES IT WOULD SEEM THAT RECOVERY OF DAMAGES, IF ANY,
SUSTAINED ON HIS ONE TRIP WOULD CONSTITUTE COMPLETE RELIEF.  HE HAS AN
ACTION AT LAW PENDING IN A STATE COURT FOR SUCH DAMAGES. 

HE WAS NOT AUTHORIZED TO SEEK AVOIDANCE OF DISCRIMINATION AGAINST
OTHER COLORED PASSENGERS.  THIS COURT HAS SAID SEVERAL TIMES THAT IT
"WILL NOT LISTEN TO A PARTY WHO COMPLAINS OF A GRIEVANCE WHICH IS NOT
HIS."  INTERSTATE COMMERCE COMM'N V. CHICAGO, R.I. & P. RY., 218 U.S.
88, 109, AND CASES CITED; ARKADELPHIA CO. V. ST. LOUIS S.W. RY. CO.,
249 U.S. 134, 149; AVENT V. UNITED STATES, 266 U.S. 127; MCCABE V.
ATCHISON, T. & S.F. RY. CO., 235 U.S. 151; MOFFAT TUNNEL LEAGUE V.
UNITED STATES, 289 U.S. 113; HINES TRUSTEES V. UNITED STATES, 263 U.S.
143, 148; SPRUNT V. UNITED STATES, 281 U.S. 249, 254; PITTSBURGH & W.
VA. RY. V. UNITED STATES, 281 U.S. 479, 486. 

THE COMMISSION IS AUTHORIZED TO AWARD FULL DAMAGES FOR ANY VIOLATION
OF THE ACT.  SEC. 16(1) INTERSTATE COMMERCE ACT; LOUISVILLE & N.R. CO.
V. OHIO VALLEY TIE CO., 242 U.S. 288. 

THE CIRCUMSTANCES SEEM TO INDICATE THAT APPELLANT'S ACTION AT LAW IS
BASED ON ALLEGED VIOLATION OF COMMON LAW RIGHTS.  SUCH SUITS HAVE BEEN
MAINTAINED IN SEVERAL INSTANCES; IN NONE WAS IT HELD THAT AN
ADMINISTRATIVE DETERMINATION BY THE COMMISSION WAS NECESSARY.  CHILES
V. CHESAPEAKE & OHIO R. CO., 218 U.S. 71; WASHINGTON, B. & A. ELECTRIC
R. CO. V. WALLER, 289 F. 598; HUFF V. NORFOLK-S.R. CO., 88 S.E. 344. 

THE DEFENDANTS URGED THAT THE COMPLAINT WAS INSUFFICIENT TO RAISE ANY
ISSUE AS TO PRACTICE, SINCE THE COMPLAINT MENTIONS BUT A SINGLE
INSTANCE OF ALLEGED DISCRIMINATION AND PREJUDICE, AND THAT ONE INSTANCE
DOES NOT AMOUNT TO A PRACTICE. 

COMPLAINT SHALL AT ANY TIME BE DISMISSED BECAUSE OF THE ABSENCE OF
DIRECT DAMAGE TO THE COMPLAINANT.  CF., INTERSTATE COMMERCE COMM'N V.
BAIRD, 194 U.S. 25, 39. 

BUT THE RIGHT OF AN INDIVIDUAL OR OF AN ASSOCIATION OR LEAGUE TO
PROSECUTE PROCEEDINGS BEFORE THE COMMISSION DOES NOT IN ITSELF CONFER
THE RIGHT TO MAINTAIN JUDICIAL PROCEEDINGS TO SET ASIDE THE
COMMISSION'S ORDER AND THE COROLLARY RIGHT TO TAKE A DIRECT APPEAL TO
THIS COURT.  HINES TRUSTEES V. UNITED STATES, 263 U.S. 143, 148;
PITTSBURGH & W. VA. RY. V. UNITED STATES, 281 U.S. 479.  SEE ALSO
SPRUNT V. UNITED STATES, 281 U.S. 249, 256-257; ALGOMA COAL CO. V.
UNITED STATES, 11 F.SUPP.  487, 495-496; UNITED STATES V. MERCHANTS
ASSN., 242 U.S. 178, 188. 

THE COMMISSION'S FINDINGS ARE FULLY SUPPORTED BY THE EVIDENCE. 

NOT ALL DISCRIMINATIONS ARE UNLAWFUL UNDER THE INTERSTATE COMMERCE
ACT BUT ONLY THOSE THAT ARE UNDUE, UNREASONABLE, OR UNJUST.  WHETHER A
DISCRIMINATION IS UNDUE, UNREASONABLE, OR UNJUST IS A QUESTION OF FACT
FOR THE COMMISSION.  TEXAS & PACIFIC RY. V. INTERSTATE COMMERCE COMM'N,
162 U.S. 197; MANUFACTURERS RY. CO. V. UNITED STATES, 246 U.S. 457,
481; NASHVILLE RY. V. TENNESSEE, 262 U.S. 318; UNITED STATES V.
TRUCKING CO., 310 U.S. 344. 

IN DETERMINING APPELLANT'S CASE THE COMMISSION PROPERLY GAVE
CONSIDERATION TO THE NATIONAL TRANSPORTATION POLICY, WHICH HAS FOR ITS
PURPOSE THE MAINTENANCE OF ADEQUATE TRANSPORTATION SERVICE.  IT WAS
WITHIN ITS POWER, AND THEREFORE NOT IN EXCESS OF ITS AUTHORITY, TO
DECLINE TO ISSUE AN ORDER, OPERATING INDEFINITELY AND PERMANENTLY IN
THE FUTURE, THE EFFECT OF WHICH WOULD BE TO REQUIRE THE CARRIER TO
PROVIDE FACILITIES WHICH APPELLANT HAS NOT SHOWN HE WILL EVER USE, AT
AN EXPENSE WIDELY DISPROPORTIONATE TO THE DEMAND FOR SUCH FACILITIES,
AND THE REVENUE TO BE DERIVED THEREFROM, IN THE FACE OF THE UNDISPUTED
EVIDENCE THAT NEGRO PASSENGERS PURCHASING FIRST-CLASS TICKETS ARE
SEATED IN THE DRAWING ROOMS OF PULLMAN CARS, AT THE REGULAR SEAT FARE,
AND THAT ORDINARILY SUCH FACILITIES ARE AMPLE TO TAKE CARE OF THE
COLORED DEMAND.  CF. WISCONSIN RAILROAD COMM'N V. CHICAGO, B. & Q.R.,
257 U.S. 563, 585; NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 189-190;
UNITED STATES V. LOUISIANA, 290 U.S. 70, 75; DAYTON-GOOSE CREEK RY. V.
UNITED STATES, 263 U.S. 456; TEXAS V. UNITED STATES, 292 U.S. 530, 531;
TEXAS & PACIFIC RY. CO. V. GULF, C. & S.F. RY. CO., 270 U.S. 266;
PIEDMONT & NOR.  RY. V. UNITED STATES, 280 U.S. 469; 286 U.S. 299;
ATCHISON RY. V. RAILROAD COMM'N, 283 U.S. 380; FLORIDA V. UNITED
STATES, 292 U.S. 1, 6-7. 

THE INTERSTATE COMMERCE ACT NEITHER REQUIRES NOR PROHIBITS
SEGREGATION. 

THE EVIDENCE SUBMITTED TO THE COMMISSION WAS VERY NARROW IN ITS
SCOPE.  IT DID NOT DISCLOSE GENERAL CONDITIONS; IT RELATED ALMOST
ENTIRELY TO ONE TRAIN OF ONE RAILROAD.  THE COMMISSION OBVIOUSLY COULD
NOT LAWFULLY ISSUE AN ORDER HAVING GENERAL APPLICATION, UPON THE NARROW
RECORD BEFORE IT. 

THE GENERAL QUESTION WHETHER SEGREGATION IS TO BE ABOLISHED IN ALL
SOUTHWEST - WOULD SEEM TO BE ONE APPROPRIATELY FOR DETERMINATION BY
CONGRESS. 

THE COMMISSION'S ORDER CONTRAVENES NO CONSTITUTIONAL PROVISION.  NEW
YORK V. UNITED STATES, 257 U.S. 591, 600-601. 

THE QUESTION OF SEGREGATION IS NOT HERE INVOLVED.  COUNCILL V. W. &
A.R. CO., 1 I.C.C. 399, 345; HEARD V. GEORGIA R. CO., 1 I.C.C. 428; 3
I.C.C. 111; EDWARDS V. NASHVILLE, C. & ST. L.R. CO., 12 I.C.C. 247;
GAINES V. S.A.L. RY., 16 I.C.C. 471.  SEE ALSO COZART V. SOUTHERN RY.
CO., 16 I.C.C. 226; CROSBY V. ST. LOUIS-S. RY. CO. 112 I.C.C. 239, AND
HARDEN V. PULLMAN CO., 120 I.C.C. 359. 

THE QUESTION OF THE APPLICABILITY OF THE ARKANSAS SEGREGATION STATUTE
TO INTERSTATE PASSENGERS, AND OF ITS CONSTITUTIONALITY IF SO
APPLICABLE, IS NOT NECESSARILY PRESENTED FOR DECISION IN THIS CASE. 
SEE LOUISVILLE, N.O. & T.R. CO. V. MISSISSIPPI, 133 U.S. 587;
CHESAPEAKE & OHIO RY. CO. V. KENTUCKY, 179 U.S. 388; MCCABE V.
ATCHISON, T. & S.F.R. CO., 235 U.S. 151; CHILES V. CHESAPEAKE & OHIO
RY. CO., 218 U.S. 71; PLESSY V. FERGUSON, 163 U.S. 540; HALL V. DECUIR,
95 U.S. 485. 

MANY DECISIONS OF THE COMMISSION RECOGNIZE THE RIGHT OF INTERSTATE
CARRIERS TO REQUIRE SEGREGATION. 

AS TO THE APPLICABILITY OF STATE SEGREGATION STATUTES TO INTERSTATE
COMMERCE, SEE HALL V. DECUIR, SUPRA; MCCABE V. ATCHISON, T. & S.F. RY.
CO., 186 F. 966, 972; 235 U.S. 151; HART V. STATE, 60 A. 457, 462;
WASHINGTON, B. & A. ELECTRIC R. CO. V. WALLER, 289 F. 598; SMITH V.
STATE, 46 S.W. 566; ALABAMA & V. RY. CO. V. MORRIS, 60 SO. 11; SOUTHERN
RY. CO. V. NORTON, 73 SO. 1; SOUTHERN RY. CO. V. PRIMROSE, 73 SO. 2. 

THE JUDICIAL FUNCTION IS EXHAUSTED WHEN THERE IS FOUND TO BE A
RATIONAL BASIS FOR THE CONCLUSIONS APPROVED BY THE ADMINISTRATIVE
BODY.  ROCHESTER TEL. CORP. V. UNITED STATES, 307 U.S. 125, 146. 

APPELLANT'S ACCEPTANCE OF THE CONSTITUTIONALITY OF THE ARKANSAS
SEPARATE-COACH STATUTE REMOVES THE FOURTEENTH AMENDMENT AND THE CIVIL
RIGHTS ACT FROM THE CASE, AND THEIR DISCUSSION BY APPELLANT THUS
BECOMES IRRELEVANT. 

WHETHER OR NOT THE ARKANSAS SEPARATE-COACH STATUTE APPLIES TO AN
INTERSTATE PASSENGER IS OF NO IMPORTANCE, UNLESS IT CAN BE FOUND TO
HAVE CONTROLLED THE COMMISSION'S DECISION TO THE EXCLUSION OF ITS OWN
ADMINISTRATIVE JUDGMENT.  AN ANALYSIS SHOWS THAT, WHILE THE COMMISSION
TOOK NOTICE OF THE STATUTE, IT DEALT WITH THE QUESTION OF
ACCOMMODATIONS WITHIN THE TERMS OF THE INTERSTATE COMMERCE ACT.  THE
QUESTION OF AN UNDUE OR UNREASONABLE PREFERENCE OR PREJUDICE BEING ONE
OF FACT AND NOT OF LAW, THE COMMISSION'S DECISION THAT THE PRESENT
ACCOMMODATIONS FURNISHED COLORED PASSENGERS ON THE TRAIN INVOLVED MEET
THE REQUIREMENTS OF THE INTERSTATE COMMERCE ACT IS CONCLUSIVE. 

THE SEVERAL COURT DECISIONS CITED BY APPELLANT TO SUPPORT HIS
CONTENTION THAT THE ARKANSAS LAW DOES NOT APPLY TO AN INTERSTATE
PASSENGER ARE NOT PERTINENT, FOR NONE OF THEM DEALT WITH A PROCEEDING
IN WHICH THE INTERSTATE COMMERCE COMMISSION HAD PREVIOUSLY EXERCISED
ITS STATUTORY POWER.  THEY CALLED FOR A DIFFERENT JUDICIAL POWER FROM
THAT INVOKED HERE.  THIS CASE INVOLVES MERELY A REQUEST BY APPELLANT
FOR AN ADMINISTRATIVE RULING FROM A BODY WHOSE LIMITS OF JURISDICTION
HE WAS BOUND TO KNOW.  BESIDES, THE CITED CASES DO NOT ESTABLISH
FINALLY THAT A STATE MAY NOT ADOPT A LEGISLATIVE POLICY, IN THE
EXERCISE OF ITS POLICE POWER, FOR THE PRESERVATION OF THE PUBLIC PEACE
AND ORDER, EVEN THOUGH SUCH A POLICY MAY INCIDENTALLY AFFECT INTERSTATE
COMMERCE, IN THE ABSENCE OF CONGRESSIONAL ACTION OCCUPYING THE SAME
FIELD.  THE CONGRESS HAS ENACTED NO LEGISLATION PROHIBITING THE
SEPARATION OF RACES ON INTERSTATE JOURNEYS. 

APPELLEES PROVIDE ACCOMMODATIONS WHICH, THE COMMISSION FINDS, MEET
THE REQUIREMENTS OF THE INTERSTATE COMMERCE ACT.  THE COMMISSION HAS
NOT MADE MERE VOLUME OF BUSINESS THE TEST OF A RIGHT, BUT HAS MERELY
PERMITTED VOLUME OF BUSINESS TO DETERMINE THE REASONABLENESS OF THE
CAPACITY OF ACCOMMODATIONS FURNISHED.  THIS IS PROPERLY WITHIN THE
EXPERT DISCRETION OF THE REGULATING BODY. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

APPELLANT, ARTHUR W. MITCHELL, FILED A COMPLAINT WITH THE INTERSTATE
COMMERCE COMMISSION ALLEGING AN UNJUST DISCRIMINATION IN THE FURNISHING
OF ACCOMMODATIONS TO COLORED PASSENGERS ON THE LINE OF THE CHICAGO,
ROCK ISLAND & PACIFIC RAILWAY COMPANY FROM CHICAGO TO HOT SPRINGS,
ARKANSAS, IN VIOLATION OF THE INTERSTATE COMMERCE ACT.  THE COMMISSION
DISMISSED THE COMPLAINT (229 I.C.C. 703) AND APPELLANT BROUGHT THIS
SUIT TO SET ASIDE THE COMMISSION'S ORDER.  UPON A HEARING BEFORE THREE
JUDGES, THE DISTRICT COURT FOUND THE FACTS AS STATED IN THE
COMMISSION'S FINDINGS, AND HELD THAT THE LATTER WERE SUPPORTED BY
SUBSTANTIAL EVIDENCE AND THAT THE COMMISSION'S ORDER WAS SUPPORTED BY
ITS FINDINGS.  THE COURT THEN RULED THAT IT WAS WITHOUT JURISDICTION,
AND ITS DISMISSAL OF THE COMPLAINT WAS STATED TO BE UPON THAT GROUND. 
THE CASE COMES HERE ON DIRECT APPEAL.  28 U.S.C. 47A.    THE FOLLOWING
FACTS WERE FOUND BY THE COMMISSION:  APPELLANT, A NEGRO RESIDENT OF
CHICAGO, AND A MEMBER OF THE HOUSE OF REPRESENTATIVES OF THE UNITED
STATES, LEFT CHICAGO FOR HOT SPRINGS ON THE EVENING OF APRIL 20, 1937,
OVER THE LINES OF THE ILLINOIS CENTRAL RAILROAD COMPANY TO MEMPHIS,
TENNESSEE, AND THE ROCK ISLAND BEYOND, TRAVELING ON A ROUND-TRIP TICKET
HE HAD PURCHASED AT THREE CENTS PER MILE.  HE HAD REQUESTED A BEDROOM
ON THE CHICAGO-HOT SPRINGS PULLMAN SLEEPING CAR BUT NONE BEING
AVAILABLE HE WAS PROVIDED WITH A COMPARTMENT AS FAR AS MEMPHIS IN THE
SLEEPER DESTINED TO NEW ORLEANS.  JUST BEFORE THE TRAIN REACHED
MEMPHIS, ON THE MORNING AFTER LEAVING CHICAGO, HE HAD A PULLMAN PORTER
TRANSFER HIM TO THE CHICAGO-HOT SPRINGS SLEEPER ON THE SAME TRAIN. 
SPACE WAS THERE AVAILABLE AND THE PORTER ASSIGNED HIM A PARTICULAR SEAT
IN THAT CAR FOR WHICH HE WAS TO PAY THE ESTABLISHED FARE OF NINETY
CENTS.  SHORTLY AFTER LEAVING MEMPHIS AND CROSSING THE MISSISSIPPI
RIVER INTO ARKANSAS, THE TRAIN CONDUCTOR TOOK UP THE MEMPHIS-HOT
SPRINGS PORTION OF HIS TICKET BUT REFUSED TO ACCEPT PAYMENT FOR THE
PULLMAN SEAT FROM MEMPHIS AND, IN ACCORDANCE WITH CUSTOM, COMPELLED HIM
OVER HIS PROTEST AND FINALLY UNDER THREAT OF ARREST TO MOVE INTO THE
CAR PROVIDED FOR COLORED PASSENGERS.  THIS WAS IN PURPORTED COMPLIANCE
WITH AN ARKANSAS STATUTE REQUIRING SEGREGATION OF COLORED FROM WHITE
PERSONS BY THE USE OF CARS OR PARTITIONED SECTIONS PROVIDING "EQUAL,
BUT SEPARATE AND SUFFICIENT ACCOMMODATIONS" FOR BOTH RACES.  LATER THE
CONDUCTOR RETURNED THE PORTION OF THE TICKET HE HAD TAKEN UP AND
ADVISED APPELLANT THAT HE COULD GET A REFUND ON THE BASIS OF THE COACH
FARE OF TWO CENTS PER MILE FROM MEMPHIS.  THAT REFUND WAS NOT CLAIMED
FROM DEFENDANTS AND WAS NOT SOUGHT BEFORE THE COMMISSION, BUT IT WAS
FOUND THAT THE CARRIERS STOOD READY TO MAKE IT UPON APPLICATION. 
APPELLANT HAS AN ACTION AT LAW PENDING AGAINST DEFENDANTS IN COOK
COUNTY, ILLINOIS, FOR DAMAGES INCIDENT TO HIS TRANSFER. 

THE COMMISSION FURTHER FOUND THAT THE PULLMAN CAR CONTAINED TEN
ONE OF THE DRAWING ROOMS WOULD HAVE AMOUNTED TO SEGREGATION UNDER THE
STATE LAW AND ORDINARILY SUCH COMBINATIONS ARE AVAILABLE TO COLORED
PASSENGERS UPON DEMAND, THE NINETY CENT FARE BEING APPLICABLE. 
OCCASIONALLY THEY ARE USED BY COLORED PASSENGERS BUT IN THIS INSTANCE
BOTH DRAWING ROOMS WERE ALREADY OCCUPIED BY WHITE PASSENGERS.  THE
PULLMAN CAR WAS OF MODERN DESIGN AND HAD ALL THE USUAL FACILITIES AND
CONVENIENCES FOUND IN STANDARD SLEEPING CARS.  IT WAS AIR-CONDITIONED,
HAD HOT AND COLD RUNNING WATER AND SEPARATE FLUSHABLE TOILETS FOR MEN
AND WOMEN.  IT WAS IN EXCELLENT CONDITION THROUGHOUT.  FIRST-CLASS
WHITE PASSENGERS HAD, IN ADDITION TO THE PULLMAN SLEEPER, THE EXCLUSIVE
USE OF THE TRAIN'S ONLY DINING-CAR AND ONLY OBSERVATION-PARLOR CAR, THE
LATTER HAVING SOMEWHAT THE SAME ACCOMMODATIONS FOR DAY USE AS THE
PULLMAN CAR. 

THE COACH FOR COLORED PASSENGERS, THOUGH OF STANDARD SIZE AND STEEL
CONSTRUCTION, WAS "AN OLD COMBINATION AFFAIR," NOT AIR-CONDITIONED,
DIVIDED BY PARTITIONS INTO THREE MAIN PARTS, ONE FOR COLORED SMOKERS,
ONE FOR WHITE SMOKERS AND ONE IN THE CENTER FOR COLORED MEN AND WOMEN,
KNOWN AS THE WOMEN'S SECTION, IN WHICH APPELLANT SAT.  THERE WAS A
TOILET IN EACH SECTION BUT ONLY THE ONE IN THE WOMEN'S SECTION WAS
EQUIPPED FOR FLUSHING AND IT WAS FOR THE EXCLUSIVE USE OF COLORED
WOMEN.  THE CAR WAS WITHOUT WASH BASINS, SOAP, TOWELS OR RUNNING WATER,
EXCEPT IN THE WOMEN'S SECTION.  THE COMMISSION STATED THAT, ACCORDING
TO APPELLANT, THE CAR WAS "FILTHY AND FOUL SMELLING," BUT THAT THE
TESTIMONY OF DEFENDANTS' WITNESSES WAS TO THE CONTRARY. 

THE COMMISSION FOUND THAT IN JULY, 1937, ABOUT THREE MONTHS AFTER
COMPLAINANT'S JOURNEY ABOVE MENTIONED, THE OLD COMBINATION COACH WAS
REPLACED BY A MODERN, ALL-STEEL, AIR-CONDITIONED COACH, WHICH WAS
DIVIDED BY A PARTITION INTO TWO SECTIONS, ONE FOR COLORED AND THE OTHER
FOR WHITE PASSENGERS, AND HAD COMFORTABLE SEATS.  IN EACH SECTION THERE
ARE WASH BASINS, RUNNING HOT AND COLD WATER, "AND SEPARATE FLUSH
TOILETS FOR MEN AND WOMEN."  THIS COACH, THE COMMISSION SAID, WAS "AS
FULLY DESIRABLE IN ALL ITS APPOINTMENTS AS THE COACH USED ENTIRELY BY
WHITE PASSENGERS TRAVELING AT SECOND-CLASS FARES." 

THE COMMISSION ALSO FOUND THAT THE DEMAND OF COLORED PASSENGERS FOR
PULLMAN ACCOMMODATIONS OVER THE ROUTE IN QUESTION WAS SHOWN TO HAVE
BEEN NEGLIGIBLE FOR MANY YEARS; THAT "ONLY ABOUT ONE NEGRO TO TWENTY
WHITE PASSENGERS RIDES THIS TRAIN FROM AND TO POINTS ON THE LINE
BETWEEN MEMPHIS AND HOT SPRINGS," AND THERE IS HARDLY EVER A DEMAND
FROM A COLORED PASSENGER FOR PULLMAN ACCOMMODATIONS.  THE CONDUCTOR
ESTIMATED THAT THIS DEMAND DID NOT AMOUNT TO ONE PER YEAR.  WHAT DEMAND
THERE MAY HAVE BEEN AT TICKET OFFICES DID NOT APPEAR. 

THE COMMISSION'S CONCLUSION WAS THUS STATED:  "THE PRESENT COACH
PROPERLY TAKES CARE OF COLORED SECOND-CLASS PASSENGERS, AND THE DRAWING
ROOMS AND COMPARTMENTS IN THE SLEEPER PROVIDE PROPER PULLMAN
ACCOMMODATIONS FOR COLORED FIRST-CLASS PASSENGERS, BUT THERE ARE NO
DININGCAR NOR OBSERVATION-PARLOR CAR ACCOMMODATIONS FOR THE LATTER, AND
THEY CANNOT LAWFULLY RANGE THROUGH THE TRAIN." 

THE COMMISSION, THOUGH TREATING THE ENFORCEMENT OF THE STATE LAW AS A
MATTER FOR STATE AUTHORITIES, THOUGHT THAT IN DECIDING THE CASE ON THE
FACTS PRESENTED IT MUST RECOGNIZE THAT THE STATE LAW REQUIRED THE
DEFENDANTS TO SEGREGATE COLORED PASSENGERS; THAT IN THESE CIRCUMSTANCES
THE PRESENT COLORED-PASSENGER COACH AND THE PULLMAN DRAWING ROOMS MET
THE REQUIREMENTS OF THE ACT; AND THAT AS THERE WAS COMPARATIVELY LITTLE
COLORED TRAFFIC AND NO INDICATION THAT THERE WAS LIKELY TO BE SUCH
DEMAND FOR DINING-CAR AND OBSERVATION-PARLOR CAR ACCOMMODATIONS BY
COLORED PASSENGERS AS TO WARRANT THE RUNNING OF ANY EXTRA CARS OR THE
CONSTRUCTION OF PARTITIONS, THE DISCRIMINATION AND PREJUDICE WAS
"PLAINLY NOT UNJUST OR UNDUE."  THE COMMISSION OBSERVED THAT IT WAS
ONLY DIFFERENCES IN TREATMENT OF THE LATTER CHARACTER THAT WERE
"UNLAWFUL AND WITHIN THE POWER OF THIS COMMISSION TO CONDEMN, REMOVE
AND PREVENT." 

FROM THE DISMISSAL OF THE COMPLAINT, FIVE COMMISSIONERS DISSENTED. 

THE UNITED STATES AS A PARTY TO THIS SUIT TO SET ASIDE THE
COMMISSION'S ORDER, AND ONE OF THE APPELLEES, DOES NOT SUPPORT THE
JUDGMENT OF THE COURT BELOW AND HAS FILED A MEMORANDUM STATING ITS
REASONS.  THE GOVERNMENT CONCLUDES THAT THE COMMISSION ERRONEOUSLY
SUPPOSED THAT THE ARKANSAS SEPARATE COACH LAW APPLIED TO AN INTERSTATE
PASSENGER AND ERRONEOUSLY DETERMINED THAT THE SMALL NUMBER OF COLORED
PASSENGERS ASKING FOR FIRST-CLASS ACCOMMODATIONS JUSTIFIED AN
OCCASIONAL DISCRIMINATION AGAINST THEM BECAUSE OF THEIR RACE. 

THE OTHER APPELLEES - THE INTERSTATE COMMERCE COMMISSION AND THE
CARRIERS - APPEAR IN SUPPORT OF THE JUDGMENT. 

FIRST.  THE COMMISSION CHALLENGES THE STANDING OF APPELLANT TO BRING
THIS SUIT.  WE FIND THE OBJECTION UNTENABLE.  THIS QUESTION DOES NOT
TOUCH THE MERITS OF THE SUIT, BUT MERELY THE AUTHORITY OF THE DISTRICT
COURT TO ENTERTAIN IT.  THE FACT THAT THE COMMISSION'S ORDER WAS ONE OF
DISMISSAL OF APPELLANT'S COMPLAINT DID NOT FORECLOSE THE RIGHT OF
REVIEW.  APPELLANT WAS AN AGGRIEVED PARTY AND THE NEGATIVE FORM OF THE
ORDER IS NOT CONTROLLING.  ROCHESTER TELEPHONE CORP. V. UNITED STATES,
307 U.S. 125, 143. 

NOR IS IT DETERMINATIVE THAT IT DOES NOT APPEAR THAT APPELLANT
INTENDS TO MAKE A SIMILAR RAILROAD JOURNEY.  HE IS AN AMERICAN CITIZEN
FREE TO TRAVEL, AND HE IS ENTITLED TO GO BY THIS PARTICULAR ROUTE
WHENEVER HE CHOOSES TO TAKE IT AND IN THAT EVENT TO HAVE FACILITIES FOR
HIS JOURNEY WITHOUT ANY DISCRIMINATION AGAINST HIM WHICH THE INTERSTATE
COMMERCE ACT FORBIDS.  HE PRESENTS THE QUESTION WHETHER THE ACT DOES
FORBID THE CONDUCT OF WHICH HE COMPLAINS. 

THE QUESTION OF APPELLANT'S RIGHT TO SEEK REVIEW OF THE COMMISSION'S
ORDER THUS INVOLVES THE PRIMARY QUESTION OF ADMINISTRATIVE AUTHORITY,
THAT IS, WHETHER APPELLANT TOOK AN APPROPRIATE COURSE IN SEEKING A
RULING OF THE COMMISSION.  THE ESTABLISHED FUNCTION OF THE COMMISSION
GIVES THE ANSWER.  THE DETERMINATION WHETHER A DISCRIMINATION BY AN
INTERSTATE CARRIER IS UNJUST AND UNLAWFUL NECESSITATES AN INQUIRY INTO
PARTICULAR FACTS AND THE PRACTICE OF THE CARRIER IN A PARTICULAR
RELATION, AND THIS UNDERLYING INQUIRY IS PRECISELY THAT WHICH THE
COMMISSION IS AUTHORIZED TO MAKE.  AS TO THE DUTY TO SEEK A
DETERMINATION BY THE COMMISSION IN SUCH A CASE, WE DO NOT SEE THAT A
PASSENGER WOULD BE IN ANY BETTER SITUATION THAN A SHIPPER.  TEXAS &
PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426; ROBINSON V.
BALTIMORE & OHIO R. CO., 222 U.S. 506; MITCHELL COAL CO. V.
PENNSYLVANIA R. CO., 230 U.S. 247; MORRISDALE COAL CO. V. PENNSYLVANIA
R. CO., 230 U.S. 304; GENERAL AMERICAN TANK CAR CORP. V. EL DORADO
TERMINAL CO., 308 U.S. 422. 

THE DISTRICT COURT HAD JURISDICTION TO REVIEW THE ACTION OF THE
COMMISSION AND THE QUESTION ON THAT REVIEW WAS WHETHER THAT ACTION WAS
IN ACCORDANCE WITH THE APPLICABLE LAW. 

SECOND.  THE CASE WAS SUBMITTED TO THE DISTRICT COURT UPON THE
EVIDENCE TAKEN BEFORE THE COMMISSION.  THE UNDISPUTED FACTS SHOWED
CONCLUSIVELY THAT, HAVING PAID A FIRST-CLASS FARE FOR THE ENTIRE
JOURNEY FROM CHICAGO TO HOT SPRINGS, AND HAVING OFFERED TO PAY THE
PROPER CHARGE FOR A SEAT WHICH WAS AVAILABLE IN THE PULLMAN CAR FOR THE
TRIP FROM MEMPHIS TO HOT SPRINGS, HE WAS COMPELLED, IN ACCORDANCE WITH
CUSTOM, TO LEAVE THAT CAR AND TO RIDE IN A SECOND-CLASS CAR AND WAS
THUS DENIED THE STANDARD CONVENIENCES AND PRIVILEGES AFFORDED TO FIRST
CLASS PASSENGERS.  THIS WAS MANIFESTLY A DISCRIMINATION AGAINST HIM IN
THE COURSE OF HIS INTERSTATE JOURNEY AND ADMITTEDLY THAT DISCRIMINATION
WAS BASED SOLELY UPON THE FACT THAT HE WAS A NEGRO.  THE QUESTION
WHETHER THIS WAS A DISCRIMINATION FORBIDDEN BY THE INTERSTATE COMMERCE
ACT IS NOT A QUESTION OF SEGREGATION  FN1 BUT ONE OF EQUALITY OF
TREATMENT.  THE DENIAL TO APPELLANT OF EQUALITY OF ACCOMMODATIONS
BECAUSE OF HIS RACE WOULD BE AN INVASION OF A FUNDAMENTAL INDIVIDUAL
RIGHT WHICH IS GUARANTEED AGAINST STATE ACTION BY THE FOURTEENTH
AMENDMENT (MCCABE V. ATCHISON, T. & S.F. RY. CO., 235 U.S. 151, 160
162; MISSOURI EX REL. GAINES V. CANADA, 305 U.S. 337, 344, 345) AND IN
VIEW OF THE NATURE OF THE RIGHT AND OF OUR CONSTITUTIONAL POLICY IT
CANNOT BE MAINTAINED THAT THE DISCRIMINATION AS IT WAS ALLEGED WAS NOT
ESSENTIALLY UNJUST.  IN THAT ASPECT IT COULD NOT BE DEEMED TO LIE
OUTSIDE THE PURVIEW OF THE SWEEPING PROHIBITIONS OF THE INTERSTATE
COMMERCE ACT. 

WE HAVE REPEATEDLY SAID THAT IT IS APPARENT FROM THE LEGISLATIVE
HISTORY OF THE ACT THAT NOT ONLY WAS THE EVIL OF DISCRIMINATION THE
PRINCIPAL THING AIMED AT, BUT THAT THERE IS NO BASIS FOR THE CONTENTION
THAT CONGRESS INTENDED TO EXEMPT ANY DISCRIMINATORY ACTION OR PRACTICE
OF INTERSTATE CARRIERS AFFECTING INTERSTATE COMMERCE WHICH IT HAD
AUTHORITY TO REACH.  THE SHREVEPORT CASE, 234 U.S. 342, 356; LOUISVILLE
& NASHVILLE R. CO. V. UNITED STATES, 282 U.S. 740, 749, 750; MERCHANTS
WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501, 512, 513.  PARAGRAPH 1 OF
SEC. 3 OF THE ACT SAYS EXPLICITLY THAT IT SHALL BE UNLAWFUL FOR ANY
COMMON CARRIER SUBJECT TO THE ACT "TO SUBJECT ANY PARTICULAR PERSON ...
TO ANY UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE IN ANY RESPECT
WHATSOEVER."  49 U.S.C. 3.  FROM THE INCEPTION OF ITS ADMINISTRATION
THE INTERSTATE COMMERCE COMMISSION HAS RECOGNIZED THE APPLICABILITY OF
THIS PROVISION TO DISCRIMINATION AGAINST COLORED PASSENGERS BECAUSE OF
THEIR RACE AND THE DUTY OF CARRIERS TO PROVIDE EQUALITY OF TREATMENT
WITH RESPECT TO TRANSPORTATION FACILITIES; THAT IS, THAT COLORED
PERSONS WHO BUY FIRST-CLASS TICKETS MUST BE FURNISHED WITH
ACCOMMODATIONS EQUAL IN COMFORTS AND CONVENIENCES TO THOSE AFFORDED TO
FIRST-CLASS WHITE PASSENGERS.  SEE COUNCILL V. WESTERN & ATLANTIC R.
CO., 1 I.C.C. 339; HEARD V. GEORGIA R. CO., 1 I.C.C. 428; HEARD V.
GEORGIA R. CO., 3 I.C.C. 111; EDWARDS V. NASHVILLE, C. & ST. L. RY.
CO., 12 I.C.C. 247; COZART V. SOUTHERN RY. CO., 16 I.C.C. 226; GAINES
V. SEABOARD AIR LINE RY. CO., 16 I.C.C. 471; CROSBY V. ST. LOUIS-SAN
FRANCISCO RY. CO., 112 I.C.C. 239.  FN2 

THIRD. WE FIND NO SOUND REASON FOR THE FAILURE TO APPLY THIS
PRINCIPLE BY HOLDING THE DISCRIMINATION FROM WHICH THE APPELLANT
SUFFERED TO BE UNLAWFUL AND BY FORBIDDING IT IN THE FUTURE. 

THAT THERE WAS BUT A SINGLE INSTANCE WAS NOT A JUSTIFICATION OF THE
TREATMENT OF THE APPELLANT.  MOREOVER, THE COMMISSION THOUGHT IT PLAIN
THAT "THE INCIDENT WAS MENTIONED AS REPRESENTATIVE OF AN ALLEGED
PRACTICE THAT WAS EXPECTED TO CONTINUE."  AND THE COMMISSION FOUND THAT
THE EJECTION OF APPELLANT FROM THE PULLMAN CAR AND THE REQUIREMENT THAT
HE SHOULD CONTINUE HIS JOURNEY IN A SECOND-CLASS CAR WAS "IN ACCORDANCE
WITH CUSTOM," THAT IS, AS WE UNDERSTAND IT, ACCORDING TO THE CUSTOM
WHICH OBTAINED IN SIMILAR CIRCUMSTANCES. 

NOR DOES THE CHANGE IN THE CARRIER'S PRACTICE AVAIL.  THAT DID NOT
ALTER THE DISCRIMINATION TO WHICH APPELLANT HAD BEEN SUBJECTED, AND AS
TO THE FUTURE THE CHANGE WAS NOT ADEQUATE.  IT APPEARS THAT SINCE JULY,
1937, THE CARRIER HAS PUT IN SERVICE A COACH FOR COLORED PASSENGERS
WHICH IS OF EQUAL QUALITY WITH THAT USED BY SECOND-CLASS WHITE
PASSENGERS.  BUT, AS THE GOVERNMENT WELL OBSERVES, THE QUESTION DOES
NOT END WITH TRAVEL ON SECOND-CLASS TICKETS.  IT DOES NOT APPEAR THAT
COLORED PASSENGERS WHO HAVE BOUGHT FIRST-CLASS TICKETS FOR
TRANSPORTATION BY THE CARRIER ARE GIVEN ACCOMMODATIONS WHICH ARE
SUBSTANTIALLY EQUAL TO THOSE AFFORDED TO WHITE PASSENGERS.  THE
GOVERNMENT PUTS THE MATTER SUCCINCTLY:  "WHEN A DRAWING ROOM IS
AVAILABLE, THE CARRIER PRACTICE OF ALLOWING COLORED PASSENGERS TO USE
ONE AT PULLMAN SEAT RATES AVOIDS INEQUALITY AS BETWEEN THE
ACCOMMODATIONS SPECIFICALLY ASSIGNED TO THE PASSENGER.  BUT WHEN NONE
IS AVAILABLE, AS ON THE TRIP WHICH OCCASIONED THIS LITIGATION, THE
DISCRIMINATION AND INEQUALITY OF ACCOMMODATION BECOME SELF-EVIDENT.  IT
IS NO ANSWER TO SAY THAT THE COLORED PASSENGERS, IF SUFFICIENTLY
DILIGENT AND FOREHANDED, CAN MAKE THEIR RESERVATIONS SO FAR IN ADVANCE
AS TO BE ASSURED OF FIRST-CLASS ACCOMMODATIONS.  SO LONG AS WHITE
PASSENGERS CAN SECURE FIRST-CLASS RESERVATIONS ON THE DAY OF TRAVEL AND
THE COLORED PASSENGERS CANNOT, THE LATTER ARE SUBJECTED TO INEQUALITY
AND DISCRIMINATION BECAUSE OF THEIR RACE."  AND THE COMMISSION HAS
RECOGNIZED THAT INEQUALITY PERSISTS WITH RESPECT TO CERTAIN OTHER
FACILITIES SUCH AS DINING-CAR AND OBSERVATION-PARLOR CAR
ACCOMMODATIONS. 

WE TAKE IT THAT THE CHIEF REASON FOR THE COMMISSION'S ACTION WAS THE
"COMPARATIVELY LITTLE COLORED TRAFFIC."  BUT THE COMPARATIVE VOLUME OF
TRAFFIC CANNOT JUSTIFY THE DENIAL OF A FUNDAMENTAL RIGHT OF EQUALITY OF
TREATMENT, A RIGHT SPECIFICALLY SAFEGUARDED BY THE PROVISIONS OF THE
INTERSTATE COMMERCE ACT.  WE THOUGHT A SIMILAR ARGUMENT WITH RESPECT TO
VOLUME OF TRAFFIC TO BE UNTENABLE IN THE APPLICATION OF THE FOURTEENTH
AMENDMENT.  WE SAID THAT IT MADE THE CONSTITUTIONAL RIGHT DEPEND UPON
THE NUMBER OF PERSONS WHO MAY BE DISCRIMINATED AGAINST, WHEREAS THE
ESSENCE OF THAT RIGHT IS THAT IT IS A PERSONAL ONE.  MCCABE V.
ATCHISON, T. & S.F. RY. CO., SUPRA.  WHILE THE SUPPLY OF PARTICULAR
FACILITIES MAY BE CONDITIONED UPON THERE BEING A REASONABLE DEMAND
THEREFOR, IF FACILITIES ARE PROVIDED, SUBSTANTIAL EQUALITY OF TREATMENT
OF PERSONS TRAVELING UNDER LIKE CONDITIONS CANNOT BE REFUSED.  IT IS
THE INDIVIDUAL, WE SAID, WHO IS ENTITLED TO THE EQUAL PROTECTION OF THE
LAWS,  - NOT MERELY A GROUP OF INDIVIDUALS, OR A BODY OF PERSONS
ACCORDING TO THEIR NUMBERS.  ID.  SEE, ALSO, MISSOURI EX REL. GAINES V.
CANADA, PP. 350, 351.  AND THE INTERSTATE COMMERCE ACT EXPRESSLY
EXTENDS ITS PROHIBITIONS TO THE SUBJECTING OF "ANY PARTICULAR PERSON"
TO UNREASONABLE DISCRIMINATIONS. 

ON THE FACTS HERE PRESENTED, THERE IS NO ROOM, AS THE GOVERNMENT
PROPERLY SAYS, FOR ADMINISTRATIVE OR EXPERT JUDGMENT WITH RESPECT TO
PRACTICAL DIFFICULTIES.  IT IS ENOUGH THAT THE DISCRIMINATION SHOWN WAS
PALPABLY UNJUST AND FORBIDDEN BY THE ACT. 

THE DECREE OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED WITH DIRECTIONS TO SET ASIDE THE ORDER OF THE COMMISSION AND
TO REMAND THE CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  IN THIS VIEW, WE HAVE NO OCCASION TO CONSIDER THE QUESTIONS
DISCUSSED BY THE ATTORNEYS GENERAL OF SEVERAL STATES IN THEIR BRIEFS AS
AMICI CURIAE. 

FN2  IN EDWARDS V. NASHVILLE, C. & ST. L. RY. CO., 12 I.C.C. 247,
249, THE PRINCIPLE WAS THUS STATED:  "IF A RAILROAD PROVIDES CERTAIN
FACILITIES AND ACCOMMODATIONS FOR FIRST-CLASS PASSENGERS OF THE WHITE
RACE, IT IS COMMANDED BY THE LAW THAT LIKE ACCOMMODATIONS SHALL BE
PROVIDED FOR COLORED PASSENGERS OF THE SAME CLASS.  THE PRINCIPLE THAT
MUST GOVERN IS THAT CARRIERS MUST SERVE EQUALLY WELL ALL PASSENGERS,
WHETHER WHITE OR COLORED, PAYING THE SAME FARE.  FAILURE TO DO THIS IS
DISCRIMINATION AND SUBJECTS THE PASSENGER TO 'UNDUE AND UNREASONABLE
PREJUDICE AND DISADVANTAGE.'" 
..END :















HUDSON & MANHATTAN R. CO. V. U.S., 313 U.S. 98 


NO. 628.  ARGUED APRIL 7, 8, 1941.  - DECIDED APRIL 28, 1941.  - 33
F.SUPP.  495, AFFIRMED. 


THE INTERSTATE COMMERCE COMMISSION, ACTING ON A PASSENGER TARIFF
RAISING THE FARE FROM 6 TO 10 CENTS, AND FINDING THAT 10 CENTS WOULD BE
UNREASONABLE BUT THAT 8 CENTS WOULD BE REASONABLE AND WOULD PRODUCE THE
BETTER REVENUE, FIXED THE FARE AT 8 CENTS.  HELD: 

1.  THE QUESTION WHETHER A 10 OR AN 8 CENT FARE WOULD PRODUCE MORE
REVENUE WAS ONE OF JUDGMENT UPON EVIDENCE.  P. 99. 

2.  THERE WAS EVIDENCE TO SUPPORT THE FINDINGS AND ORDER.  P. 99. 

HUDSON & MANHATTAN RAILROAD CO. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEW JERSEY. 

APPEAL FROM A JUDGMENT DISMISSING A BILL TO SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION.  227 I.C.C. 741. 

PER CURIAM. 

ON JULY 31, 1937, APPELLANT FILED WITH THE INTERSTATE COMMERCE
COMMISSION A PASSENGER TARIFF ESTABLISHING A FARE OF 10 CENTS FOR
INTERSTATE TRANSPORTATION ON ITS DOWNTOWN LINE IN LIEU OF THE EXISTING
FARE OF 6 CENTS.  THE COMMISSION SUSPENDED THE TARIFF AND AFTER FULL
HEARING FOUND THAT THE REVENUE RESULTS TO APPELLANT WOULD BE MORE
FAVORABLE UNDER AN 8-CENT FARE THAN UNDER A 10-CENT FARE AND FURTHER
DETERMINED THAT THE PROPOSED 10-CENT FARE WOULD BE UNREASONABLE UNDER
SECS. 1 AND 15A OF THE INTERSTATE COMMERCE ACT AND THAT AN 8-CENT FARE
HAD BEEN JUSTIFIED. 

THE COMMISSION DIRECTED THE CANCELLATION OF THE SCHEDULE FILED,
WITHOUT PREJUDICE TO THE ESTABLISHMENT OF AN 8-CENT FARE, AND
ACCORDINGLY, IN JULY, 1938, APPELLANT CANCELED ITS PROPOSED TARIFF AND
PUT INTO EFFECT A FARE OF 8 CENTS.  THE COMMISSION REFUSED A
REHEARING. 

IN JUNE, 1939, APPELLANT BROUGHT THIS SUIT TO SET ASIDE THE
COMMISSION'S ORDER.  THE CASE WAS HEARD IN THE DISTRICT COURT BY THREE
JUDGES UPON THE RECORD MADE BEFORE THE COMMISSION, AND THE COURT
RENDERED ITS DECISION IN JUNE, 1940, HOLDING THAT THE FINDINGS OF THE
COMMISSION WERE BASED UPON SUBSTANTIAL EVIDENCE AND THAT THE ORDER WAS
WITHIN THE COMMISSION'S AUTHORITY, WAS NOT CONFISCATORY, AND DID NOT
DEPRIVE APPELLANT OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW.  33
F.SUPP.  495. 

AS THIS COURT HAS OBSERVED, "THE RAISING OF RATES DOES NOT
NECESSARILY INCREASE REVENUE.  IT MAY IN PARTICULAR LOCALITIES REDUCE
REVENUE INSTEAD OF INCREASING IT, BY DISCOURAGING PATRONAGE."  FLORIDA
V. UNITED STATES, 282 U.S. 194, 214.  THE EFFECT OF AN INCREASED RATE
OF 10 CENTS AS COMPARED WITH ONE OF 8 CENTS, WITH RESPECT TO RESULTING
REVENUES, WAS NECESSARILY ONE OF JUDGMENT UPON EVIDENCE AND THE
COMMISSION HAD EVIDENCE BEFORE IT WITH RESPECT TO TRAFFIC CONDITIONS IN
THE AREA IN QUESTION AND THE EXTENT OF PROBABLE DIVERSION OF TRAFFIC IF
THE FARE WERE INCREASED TO 10 CENTS.  WE CONCLUDE THAT IN THIS RELATION
THERE WAS EVIDENCE TO SUPPORT THE COMMISSION'S FINDINGS AND ITS
FINDINGS SUPPORTED ITS ORDER. 

THE DECREE OF THE DISTRICT COURT IS AFFIRMED.  INTERSTATE COMMERCE
COMMISSION V. LOUISVILLE & NASHVILLE R. CO., 227 U.S. 88, 98; VIRGINIAN
RAILWAY CO. V. UNITED STATES, 272 U.S. 658, 665, 666; FLORIDA V. UNITED
STATES, 292 U.S. 1, 9; OHIO V. UNITED STATES, 292 U.S. 498, 506; UNITED
STATES V. AMERICAN TIN PLATE CO., 301 U.S. 402, 411.  AFFIRMED. 
..END :






SHAMROCK OIL CORP. V. SHEETS, 313 U.S. 100 


NO. 727.  ARGUED APRIL 8, 1941.  - DECIDED APRIL 28, 1941.  - 115 F.2D
880, AFFIRMED. 


1.  REMOVABILITY OF SUITS FROM STATE TO FEDERAL COURTS IS DETERMINED
BY THE FEDERAL REMOVAL STATUTE, UNAFFECTED BY LOCAL LAW.  P. 104. 

2.  THE RIGHT OF REMOVAL UNDER THE ACT OF 1887, JUD.  CODE SEC. 28,
IS CONFINED TO THE DEFENDANT OR DEFENDANTS.  P. 104. 

3.  THE INTERPOSITION BY THE CITIZEN DEFENDANT IN A SUIT IN A STATE
COURT, OF A COUNTERCLAIM SETTING UP AN INDEPENDENT CAUSE OF ACTION
INVOLVING THE REQUISITE JURISDICTIONAL AMOUNT, DOES NOT CONFER UPON THE
NON-CITIZEN PLAINTIFF THE RIGHT OF REMOVAL.  P. 107. 

THE AMOUNT OF THE PLAINTIFF'S DEMAND IN THE STATE COURT IS
IMMATERIAL. 

4.  NOT ONLY DOES THE LANGUAGE OF THE JURISDICTIONAL ACT OF 1887
EVIDENCE THE CONGRESSIONAL PURPOSE TO RESTRICT THE JURISDICTION OF THE
FEDERAL COURTS ON REMOVAL, BUT THE POLICY OF THE SUCCESSIVE ACTS OF
CONGRESS REGULATING THE JURISDICTION OF FEDERAL COURTS IS ONE CALLING
FOR THE STRICT CONSTRUCTION OF SUCH JURISDICTION.  P. 108. 

SHAMROCK OIL & GAS CORP. V. SHEETS ET AL., DOING BUSINESS AS FRIONA
INDEPENDENT OIL CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 312 U.S. 675, TO REVIEW THE REVERSAL OF A JUDGMENT OF THE
DISTRICT COURT IN A SUIT REMOVED FROM A STATE COURT.  THE JUDGMENT WENT
IN FAVOR OF THE DEFENDANT, PETITIONER HEREIN, BOTH ON THE CAUSE OF
ACTION SET UP IN THE COMPLAINT AND ON A COUNTERCLAIM. 

THE CROSS-ACTION OR COUNTERCLAIM FILED BY THE RESPONDENTS SOUGHT
AFFIRMATIVE RELIEF FOR MORE THAN $3,000 ON A MATTER UNRELATED TO THE
VERIFIED ACCOUNT SUED UPON BY PETITIONER. 

UNDER TEXAS PRACTICE A CROSS-ACTION OR COUNTERCLAIM SUCH AS THAT HERE
INVOLVED IS A SUIT, AND ONE WHO DEFENDS IT IS A DEFENDANT.  CF. MASON
CITY & FORT DODGE R. CO. V. BOYNTON, 204 U.S. 570; MERCHANTS HEAT &
LIGHT CO. V. JAMES B. CLOW & SONS, 204 U.S. 286; KIRBY V. AMERICAN SODA
FOUNTAIN CO., 194 U.S. 141. 

THE CROSS-ACTION OR COUNTERCLAIM WAS FOR DAMAGES TOTALING $7,200 FOR
ALLEGED BREACH OF CONTRACT.  SUCH CONTRACT ALLEGEDLY WAS MADE ON A
DIFFERENT DATE FROM THAT UPON WHICH THE INDEBTEDNESS TO THE PETITIONER
WAS INCURRED, AND WAS UNRELATED TO THAT INDEBTEDNESS. 

TO THAT CROSS-ACTION, PETITIONER NOT ONLY OCCUPIED THE POSITION OF A
DEFENDANT BUT WAS AN ACTUAL DEFENDANT WITHIN THE LETTER AND INTENT OF
THE REMOVAL STATUTE. 

OF TWENTY-FIVE DECISIONS BY THE LOWER FEDERAL COURTS SINCE THE
ENACTMENT OF SEC. 28 OF THE JUDICIAL CODE IN 1887, WHEREIN WAS INVOLVED
THE RIGHT OF A DEFENDANT TO A CROSS-ACTION TO REMOVE SUCH CROSS-ACTION,
TWENTY-ONE RECOGNIZE THE RIGHT OF REMOVAL.  THE CASES UPHOLDING THE
RIGHT OF REMOVAL ARE BETTER REASONED.  SEE BANKERS SECURITIES CORP. V.
INSURANCE EQUITIES CORP., 85 F.2D 856, 857; AMERICAN FRUIT GROWERS V.
LAROCHE, 39 F.2D 243, 244; SAN ANTONIO SUBURBAN IRRIGATED FARMS V.
SHANDY, 29 F.2D 579, 581; WICHITA ROYALTY CO. V. CITY NATIONAL BANK, 18
F.SUPP.  609, 610; 95 F.2D 671; 306 U.S. 103. 

THE DECISION THAT THE TERM "DEFENDANT" IN THE REMOVAL ACT IS USED IN
A TECHNICAL SENSE AND REFERS ONLY TO THE PARTY DESIGNATED AS THE
ORIGINAL DEFENDANT IN THE ACTION, CONFLICTS WITH DECISIONS OF THIS
COURT AS WELL AS THOSE ABOVE REFERRED TO WHICH DIRECTLY PASS UPON THE
QUESTION.  IN MASON CITY & FORT DODGE R. CO. V. BOYNTON, 204 U.S. 570,
579, THIS COURT HELD THAT THE WORD "DEFENDANT" AS USED IN THE ACT WAS
DIRECTED TO MORE IMPORTANT MATTERS THAN THE BURDEN OF PROOF OR THE
RIGHT TO OPEN AND CLOSE.  IT HAS REPEATEDLY HELD THAT, UNDER THE
JUDICIARY ACTS OF 1875 AND 1887-8, IN DETERMINING THE RIGHT OF REMOVAL,
THE PARTIES SHOULD BE REALIGNED IN ACCORDANCE WITH THE MATTER IN
DISPUTE WITHOUT REGARD TO THE POSITION THEY OCCUPY IN THE PLEADINGS AS
PLAINTIFF OR DEFENDANT. 

THE DECISION THAT THE ACT GIVES THE RIGHT OF REMOVAL TO AN ORIGINAL
DEFENDANT ONLY, LIKEWISE CONFLICTS WITH THE FOLLOWING DECISIONS
RECOGNIZING THE REMOVAL RIGHT OF A THIRD PARTY, BROUGHT IN BY A CROSS
ACTION.  HABERMEL V. MONG, 31 F.2D 822; HOULTON SAVINGS BANK V.
AMERICAN LAUNDRY MACHINERY CO., 7 F.SUPP.  858; ELLIS V. PEAKE, 22
F.SUPP.  908.  DISTINGUISHING WEST V. CITY OF AURORA, 6 WALL.  139. 

THE PLAIN MEANING OF THE LANGUAGE USED IN THE ACT MAY NOT BE
IGNORED.  NEW ORLEANS V. QUINLAN, 173 U.S. 191. 

THE ACTION OF CONGRESS IN OMITTING FROM THE ACT OF 1887-8 THE
PROVISION IN THE JUDICIARY ACT OF 1789 THAT THE DEFENDANT SHOULD "AT
THE TIME OF ENTERING HIS APPEARANCE IN SUCH STATE COURT" FILE HIS
PETITION FOR REMOVAL, WHICH LANGUAGE WAS HELD BY THE SUPREME COURT IN
WEST V. CITY OF AURORA, SUPRA, TO LIMIT THE RIGHT OF REMOVAL TO AN
ORIGINAL DEFENDANT UNDER THE ACT OF 1789, MANIFESTS AN INTENT THAT THE
RIGHT OF REMOVAL SHOULD NOT BE LIMITED TO THE ORIGINAL DEFENDANT.  FISK
V. HENAIRIE, 142 U.S. 459. 

WHERE THE DEFENDANT IN THE CROSS-ACTION FILES HIS REMOVAL PETITION AT
OR BEFORE THE TIME REQUIRED, BY THE LAWS OF THE STATE OR THE RULES OF
THE STATE COURT, TO PLEAD TO THE COMPLAINT IN THE CROSS-ACTION, SEC. 29
JUD.  CODE HAS BEEN COMPLIED WITH. 

CASES DENYING TO A DEFENDANT IN A CROSS-ACTION THE RIGHT TO REMOVE
ARE BASED UPON WEST V. CITY OF AURORA, SUPRA, WHICH IS NOT CONTROLLING
UNDER THE PRESENT REMOVAL STATUTES IN THE PRESENT CONTROVERSY. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, A CITIZEN OF TEXAS AND DEFENDANT IN A COURT OF THAT
STATE, SET UP BY WAY OF COUNTERCLAIM OR CROSS-ACTION AGAINST
PETITIONER, THE NON-CITIZEN PLAINTIFF IN THE SUIT, A CAUSE OF ACTION
FOR DAMAGES IN EXCESS OF $3,000 FOR BREACH OF A CONTRACT, WHICH WAS
SEPARATE AND DISTINCT FROM THE ALLEGED INDEBTEDNESS SUED UPON BY THE
PETITIONER.  THE QUESTION FOR DECISION IS WHETHER THE SUIT IN WHICH THE
COUNTERCLAIM IS FILED, IS ONE REMOVABLE BY THE PLAINTIFF TO THE FEDERAL
DISTRICT COURT ON GROUNDS OF DIVERSITY OF CITIZENSHIP UNDER SEC. 28 OF
THE JUDICIAL CODE, 28 U.S.C. SEC. 71. 

THE PLAINTIFF IN THE STATE COURT REMOVED THE CAUSE TO THE UNITED
STATES DISTRICT COURT FOR NORTHERN TEXAS, WHICH DENIED RESPONDENT'S
MOTION TO REMAND.  AFTER A TRIAL ON THE MERITS IT GAVE JUDGMENT FOR
PETITIONER, PLAINTIFF BELOW, BOTH ON THE CAUSE OF ACTION SET UP ON ITS
COMPLAINT IN THE SUIT AND ON THE COUNTERCLAIM.  THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT REVERSED, 115 F.2D 880, AND ORDERED THE CAUSE
REMANDED TO THE STATE COURT ON THE GROUND THAT THE PLAINTIFF IN THE
STATE COURT WAS NOT A "DEFENDANT" WITHIN THE MEANING OF SEC. 28 OF THE
JUDICIAL CODE, AND SO WAS NOT ENTITLED TO REMOVE THE CAUSE UNDER THAT
PROVISIONS ONLY "BY THE DEFENDANT OR DEFENDANTS THEREIN."  WE GRANTED
CERTIORARI, 312 U.S. 675, TO RESOLVE THE CONFLICT OF THE DECISION OF
THE COURT BELOW AND THAT OF WACO HARDWARE CO. V. MICHIGAN STOVE CO., 91
F. 289; SEE WEST V. AURORA CITY, 6 WALL.  139, WITH NUMEROUS DECISIONS
OF OTHER CIRCUIT COURTS OF APPEALS.  CARSON & RAND LUMBER CO. V.
HOLTZCLAW, 39 F. 578; BANKERS SECURITIES CORP. V. INSURANCE EQUITIES
CORP., 85 F.2D 856; CHAMBERS V. SKELLY OIL CO., 87 F.2D 853, AND CASES
CITED IN NOTE 5 OF THE OPINION BELOW, 115 F.2D 880, 882. 

WE ASSUME FOR PURPOSES OF DECISION, THAT IF THE CAUSE WAS REMOVABLE
BY PETITIONER, THE REMOVAL PROCEEDINGS WERE REGULAR AND TIMELY; THAT
RESPONDENT'S COUNTERCLAIM STATED AN INDEPENDENT CAUSE OF ACTION AND
THAT THE AMOUNT IN CONTROVERSY IN THAT ACTION EXCEEDED THE
JURISDICTIONAL AMOUNT, AND WE CONFINE OUR DECISION TO THE QUESTION OF
STATUTORY CONSTRUCTION RAISED BY THE PETITION FOR CERTIORARI. 

PETITIONER ARGUES THAT ALTHOUGH NOMINALLY A PLAINTIFF IN THE STATE
COURT IT WAS IN POINT OF SUBSTANCE A DEFENDANT TO THE CAUSE OF ACTION
ASSERTED IN THE COUNTERCLAIM UPON WHICH, UNDER TEXAS PROCEDURE,
JUDGMENT COULD GO AGAINST THE PLAINTIFF IN THE FULL AMOUNT DEMANDED. 
PECK V. MCKELLAR, 33 TEX. 234; GIMBEL & SON V. GOMPRECHT & CO., 89 TEX.
497; 35 S.W. 470; HARRIS V. SCHLINKE, 95 TEX. 88; 65 S.W. 172.  BUT AT
THE OUTSET IT IS TO BE NOTED THAT DECISION TURNS ON THE MEANING OF THE
REMOVAL STATUTE AND NOT UPON THE CHARACTERIZATION OF THE SUIT OR THE
PARTIES TO IT BY STATE STATUTES OR DECISIONS.  MASON CITY & FT. DODGE
R. CO. V. BOYNTON, 204 U.S. 570.  THE REMOVAL STATUTE, WHICH IS
NATIONWIDE IN ITS OPERATION, WAS INTENDED TO BE UNIFORM IN ITS
APPLICATION, UNAFFECTED BY LOCAL LAW DEFINITION OR CHARACTERIZATION OF
THE SUBJECT MATTER TO WHICH IT IS TO BE APPLIED.  HENCE THE ACT OF
CONGRESS MUST BE CONSTRUED AS SETTING UP ITS OWN CRITERIA, IRRESPECTIVE
OF LOCAL LAW, FOR DETERMINING IN WHAT INSTANCES SUITS ARE TO BE REMOVED
FROM THE STATE TO THE FEDERAL COURTS.  CF. BURNET V. HARMEL, 287 U.S.
103, 110. 

WHICH IT APPLIES "BY THE DEFENDANT OR DEFENDANTS THEREIN."  FN1  DURING
THE PERIOD FROM 1875 TO 1887 THE STATUTE GOVERNING REMOVALS, 18 STAT.
470, SPECIFICALLY GAVE TO "EITHER PARTY" TO THE SUIT THE PRIVILEGE OF
REMOVAL.  AT ALL OTHER PERIODS SINCE THE ADOPTION OF THE JUDICIARY ACT
OF 1789 THE STATUTES GOVERNING REMOVALS HAVE IN TERMS GIVEN THE
PRIVILEGE OF REMOVAL TO "DEFENDANTS" ALONE, EXCEPT THE ACT OF 1867, 14
STAT. 558, CONTINUED AS PART OF SEC. 28 OF THE JUDICIAL CODE, WHICH
PERMITS EITHER PLAINTIFF OR DEFENDANT TO REMOVE WHERE THERE IS THE
ADDITIONAL GROUND OF PREJUDICE AND LOCAL INFLUENCE. 

"IF A SUIT BE COMMENCED IN ANY STATE COURT AGAINST AN ALIEN  ...  OR
...  AGAINST A CITIZEN OF ANOTHER STATE, AND THE MATTER IN DISPUTE
EXCEEDS" THE JURISDICTIONAL AMOUNT "AND THE DEFENDANT SHALL, AT THE
TIME OF ENTERING HIS APPEARANCE IN SUCH STATE COURT, FILE A PETITION
FOR THE REMOVAL OF THE CAUSE," IT SHALL BE REMOVABLE TO THE CIRCUIT
COURT.  IN WEST V. AURORA CITY, 6 WALL.  139, THIS COURT HELD THAT
REMOVAL OF A CAUSE FROM A STATE TO A FEDERAL COURT COULD BE EFFECTED
UNDER SEC. 12 ONLY BY A DEFENDANT AGAINST WHOM THE SUIT IS BROUGHT BY
PROCESS SERVED UPON HIM.  CONSEQUENTLY A NON-CITIZEN PLAINTIFF IN THE
STATE COURT, AGAINST WHOM THE CITIZEN-DEFENDANT HAD ASSERTED IN THE
SUIT A CLAIM BY WAY OF COUNTERCLAIM WHICH, UNDER STATE LAW, HAD THE
CHARACTER OF AN ORIGINAL SUIT, WAS NOT ENTITLED TO REMOVE THE CAUSE. 
THE COURT RULED THAT THE PLAINTIFF, HAVING SUBMITTED HIMSELF TO THE
JURISDICTION OF THE STATE COURT, WAS NOT ENTITLED TO AVAIL HIMSELF OF A
RIGHT OF REMOVAL CONFERRED ONLY ON A DEFENDANT WHO HAS NOT SUBMITTED
HIMSELF TO THE JURISDICTION. 

BY SEC. 3 OF THE ACT OF 1875, THE PRACTICE ON REMOVAL WAS GREATLY
LIBERALIZED.  IT AUTHORIZED "EITHER PARTY OR ANY ONE OR MORE OF THE
PLAINTIFFS OR DEFENDANTS ENTITLED TO REMOVE ANY SUIT" FROM THE STATE
COURT TO DO SO UPON PETITION IN SUCH SUIT TO THE STATE COURT "BEFORE OR
AT THE TERM AT WHICH SAID CAUSE COULD BE FIRST TRIED AND BEFORE THE
TRIAL THEREOF."  THESE PROVISIONS WERE CONTINUED UNTIL THE ADOPTION OF
THE PROVISIONS OF THE PRESENT STATUTE, SO FAR AS NOW MATERIAL, BY THE
ACT OF 1887, 24 STAT. 552. 

WE CANNOT ASSUME THAT CONGRESS, IN THUS REVISING THE STATUTE WAS
UNAWARE OF THE HISTORY WHICH WE HAVE JUST DETAILED,  FN2  OR CERTAINLY
THAT IT REGARDED AS WITHOUT SIGNIFICANCE THE OMISSION FROM THE EARLIER
ACT OF THE PHRASE "EITHER PARTY," AND THE SUBSTITUTION FOR IT OF THE
PHRASE AUTHORIZING REMOVAL BY THE "DEFENDANT OR DEFENDANTS" IN THE
SUIT, OR THE LIKE OMISSION OF THE PROVISION FOR REMOVAL AT ANY TIME
BEFORE THE TRIAL, AND THE SUBSTITUTION FOR IT OF THE REQUIREMENT THAT
THE REMOVAL PETITION BE FILED BY THE "DEFENDANT" AT OR BEFORE THE TIME
HE IS REQUIRED TO PLEAD IN THE STATE COURT. 

WE THINK THESE ALTERATIONS IN THE STATUTE ARE OF CONTROLLING
SIGNIFICANCE AS INDICATING THE CONGRESSIONAL PURPOSE TO NARROW THE
FEDERAL JURISDICTION ON REMOVAL BY REVIVING IN SUBSTANCE THE PROVISIONS
OF SEC. 12 OF THE JUDICIARY ACT OF 1789 AS CONSTRUED IN WEST V. AURORA
CITY, SUPRA. SEE H. REPT. NO. 1078, 49TH CONG., 1ST SESS., P. 1.  IF,
IN REENACTING IN SUBSTANCE THE PERTINENT PROVISIONS OF SEC. 12 OF THE
JUDICIARY ACT, CONGRESS INTENDED TO RESTRICT THE OPERATION OF THOSE
PROVISIONS OR TO REJECT THE CONSTRUCTION WHICH THIS COURT HAD PLACED
UPON THEM, BY SAVING THE RIGHT OF A PLAINTIFF, IN ANY CASE OR TO ANY
EXTENT, TO REMOVE THE CAUSE UPON THE FILING OF A COUNTERCLAIM PRAYING
AN AFFIRMATIVE JUDGMENT AGAINST HIM, WE CAN HARDLY SUPPOSE THAT IT
WOULD HAVE FAILED TO USE SOME APPROPRIATE LANGUAGE TO EXPRESS THAT
INTENTION.  THAT ITS OMISSION OF THE REFERENCE IN THE EARLIER STATUTE
TO REMOVAL BY "EITHER PARTY" WAS DELIBERATE IS INDICATED BY THE
COMMITTEE REPORTS WHICH RECOMMENDED THE RETENTION OF THE PROVISIONS OF
THE ACT OF 1867 FOR REMOVAL BY EITHER PLAINTIFF OR DEFENDANT WHEN AN
ADDITIONAL GROUND OF REMOVAL IS PREJUDICE AND LOCAL INFLUENCE.  SEE H.
REPT., OP. CIT., SUPRA, P. 2. 

THE CASES IN THE FEDERAL COURTS ON WHICH PETITIONER RELIES HAVE
DISTINGUISHED THE DECISION IN WEST V. AURORA CITY, SUPRA, ON THE GROUND
THAT IT AROSE UNDER AN EARLIER STATUTE.  BUT WE FIND NO MATERIAL
DIFFERENCE UPON THE PRESENT ISSUE BETWEEN THE TWO STATUTES, AND THE
REASONING OF THE COURT IN SUPPORT OF ITS DECISION IS AS APPLICABLE TO
ONE AS TO THE OTHER.  IN SOME OF THOSE CASES IT IS SUGGESTED ALSO THAT
A PLAINTIFF WHO BRINGS HIS SUIT IN A STATE COURT FOR LESS THAN THE
JURISDICTIONAL AMOUNT DOES NOT WAIVE HIS RIGHT TO REMOVE, UPON THE
FILING OF A COUNTERCLAIM AGAINST HIM.  AND PETITIONER ARGUES THAT THIS
IS SO EVEN WHEN, AS IN THE PRESENT CASE, THE PLAINTIFF'S DEMAND IS IN
EXCESS OF THE JURISDICTIONAL AMOUNT.  BUT WE THINK THE AMOUNT OF THE
PLAINTIFF'S DEMAND IN THE STATE COURT IS IMMATERIAL, FOR ONE DOES NOT
ACQUIRE AN ASSERTED RIGHT BY NOT WAIVING IT, AND THE QUESTION HERE IS
NOT OF WAIVER BUT OF THE ACQUISITION OF A RIGHT WHICH CAN ONLY BE
CONFERRED BY ACT OF CONGRESS.  WE CAN FIND NO BASIS FOR SAYING THAT
CONGRESS, BY OMITTING FROM THE PRESENT STATUTE ALL REFERENCE TO
"PLAINTIFFS," INTENDED TO SAVE A RIGHT OF REMOVAL TO SOME PLAINTIFFS
AND NOT TO OTHERS.  THE QUESTION OF THE RIGHT OF REMOVAL, DECIDED IN
WICHITA ROYALTY CO. V. CITY NATIONAL BANK, 95 F.2D 671, 674, ON WHICH
PETITIONER ALSO RELIES, WAS NOT PRESENTED TO OR PASSED UPON BY THIS
COURT.  306 U.S. 103.  IT INVOLVED FACTORS NOT HERE PRESENT WHICH WE
FIND IT UNNECESSARY TO CONSIDER.    NOT ONLY DOES THE LANGUAGE OF THE
ACT OF 1887 EVIDENCE THE CONGRESSIONAL PURPOSE TO RESTRICT THE
JURISDICTION OF THE FEDERAL COURTS ON REMOVAL, BUT THE POLICY OF THE
SUCCESSIVE ACTS OF CONGRESS REGULATING THE JURISDICTION OF FEDERAL
COURTS IS ONE CALLING FOR THE STRICT CONSTRUCTION OF SUCH LEGISLATION. 
THE POWER RESERVED TO THE STATES UNDER THE CONSTITUTION TO PROVIDE FOR
THE DETERMINATION OF CONTROVERSIES IN THEIR COURTS, MAY BE RESTRICTED
ONLY BY THE ACTION OF CONGRESS IN CONFORMITY TO THE JUDICIARY ARTICLES
OF THE CONSTITUTION.  "DUE REGARD FOR THE RIGHTFUL INDEPENDENCE OF
STATE GOVERNMENTS, WHICH SHOULD ACTUATE FEDERAL COURTS, REQUIRES THAT
THEY SCRUPULOUSLY CONFINE THEIR OWN JURISDICTION TO THE PRECISE LIMITS
WHICH THE STATUTE HAS DEFINED."  HEALY V. RATTA, 292 U.S. 263, 270; SEE
KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, 233, 234; MATTHEWS V.
RODGERS, 284 U.S. 521, 525; CF. ELGIN V. MARSHALL, 106 U.S. 578. 
AFFIRMED. 

FN1  "ANY SUIT OF A CIVIL NATURE, AT LAW OR IN EQUITY, ARISING UNDER
THE CONSTITUTION OR LAWS OF THE UNITED STATES, OR TREATIES MADE, OR
WHICH SHALL BE MADE, UNDER THEIR AUTHORITY, OF WHICH THE DISTRICT
COURTS OF THE UNITED STATES ARE GIVEN ORIGINAL JURISDICTION, IN ANY
STATE COURT, MAY BE REMOVED BY THE DEFENDANT OR DEFENDANTS THEREIN TO
THE DISTRICT COURT OF THE UNITED STATES FOR THE PROPER DISTRICT.  ANY
OTHER SUIT OF A CIVIL NATURE, AT LAW OR IN EQUITY, OF WHICH THE
DISTRICT COURTS OF THE UNITED STATES ARE GIVEN JURISDICTION, IN ANY
STATE COURT, MAY BE REMOVED INTO THE DISTRICT COURT OF THE UNITED
STATES FOR THE PROPER DISTRICT BY THE DEFENDANT OR DEFENDANTS THEREIN,
BEING NONRESIDENTS OF THAT STATE.  ...  AND WHERE A SUIT IS BROUGHT IN
ANY STATE COURT, IN WHICH THERE IS A CONTROVERSY BETWEEN A CITIZEN OF
THE STATE IN WHICH THE SUIT IS BROUGHT AND A CITIZEN OF ANOTHER STATE,
ANY DEFENDANT, BEING SUCH CITIZEN OF ANOTHER STATE, MAY REMOVE SUCH
SUIT INTO THE DISTRICT COURT OF THE UNITED STATES FOR THE PROPER
DISTRICT, AT ANY TIME BEFORE THE TRIAL THEREOF, WHEN IT SHALL BE MADE
TO APPEAR TO SAID DISTRICT COURT THAT FROM PREJUDICE OR LOCAL INFLUENCE
HE WILL NOT BE ABLE TO OBTAIN JUSTICE IN SUCH STATE COURT, OR IN ANY
OTHER STATE COURT TO WHICH THE SAID DEFENDANT MAY, UNDER THE LAWS OF
THE STATE, HAVE THE RIGHT, ON ACCOUNT OF SUCH PREJUDICE OR LOCAL
INFLUENCE, TO REMOVE SAID CAUSE.  ...  AT ANY TIME BEFORE THE TRIAL OF
ANY SUIT IN ANY DISTRICT COURT, WHICH HAS BEEN REMOVED TO SAID COURT
FROM A STATE COURT ON THE AFFIDAVIT OF ANY PARTY PLAINTIFF THAT HE HAD
REASON TO BELIEVE AND DID BELIEVE THAT, FROM PREJUDICE OR LOCAL
INFLUENCE, HE WAS UNABLE TO OBTAIN JUSTICE IN SAID STATE COURT, THE
DISTRICT COURT SHALL, ON APPLICATION OF THE OTHER PARTY, EXAMINE INTO
THE TRUTH OF SAID AFFIDAVIT AND THE GROUNDS THEREOF, AND, UNLESS IT
SHALL APPEAR TO THE SATISFACTION OF SAID COURT THAT SAID PARTY WILL NOT
BE ABLE TO OBTAIN JUSTICE IN SAID STATE COURT, IT SHALL CAUSE THE SAME
TO BE REMANDED THERETO.  ...  " 

FN2  SEE H. REPT. NO. 1078, 49TH CONG., 1ST SESS., P. 1: 

"THE NEXT CHANGE PROPOSED IS TO RESTRICT THE RIGHT TO REMOVE A CAUSE
FROM THE STATE TO THE FEDERAL COURT TO THE DEFENDANT.  AS THE LAW NOW
PROVIDES, EITHER PLAINTIFF OR DEFENDANT MAY REMOVE A CAUSE.  THIS WAS
AN INNOVATION ON THE LAW AS IT EXISTED FROM 1789 UNTIL THE PASSAGE OF
THE ACT OF 1875. 

"IN THE OPINION OF THE COMMITTEE IT IS BELIEVED TO BE JUST AND PROPER
TO REQUIRE THE PLAINTIFF TO ABIDE HIS SELECTION OF A FORUM.  IF HE
ELECTS TO SUE IN A STATE COURT WHEN HE MIGHT HAVE BROUGHT HIS SUIT IN A
FEDERAL COURT THERE WOULD SEEM TO BE, ORDINARILY, NO GOOD REASON TO
ALLOW HIM TO REMOVE THE CAUSE.  EXPERIENCE IN THE PRACTICE UNDER THE
ACT OF 1875 HAS SHOWN THAT SUCH A PRIVILEGE IS OFTEN USED BY PLAINTIFFS
TO OBTAIN UNFAIR CONCESSIONS AND COMPROMISES FROM DEFENDANTS WHO ARE
UNABLE TO MEET THE EXPENSES INCIDENT TO LITIGATION IN THE FEDERAL
COURTS REMOTE FROM THEIR HOMES. 

"THE COMMITTEE, HOWEVER, BELIEVE THAT WHEN A PLAINTIFF MAKES
AFFIDAVIT THAT FROM PREJUDICE OR LOCAL INFLUENCE HE BELIEVES THAT HE
WILL NOT BE ABLE TO OBTAIN JUSTICE IN THE STATE COURT HE SHOULD HAVE
THE RIGHT TO REMOVE THE CAUSE TO THE FEDERAL COURT.  THE BILL SECURES
THAT RIGHT TO A PLAINTIFF." 
..END :


















CALIFORNIA V. THOMPSON, 313 U.S. 109 


NO. 687.  ARGUED APRIL 3, 1941.  - DECIDED APRIL 28, 1941.  - 41 CAL.
APP.2D 965, REVERSED. 


1.  THE COMMERCE CLAUSE DID NOT WHOLLY WITHDRAW FROM THE STATES THE
POWER TO REGULATE MATTERS OF LOCAL CONCERN WITH RESPECT TO WHICH
CONGRESS HAS NOT EXERCISED ITS POWER, EVEN THOUGH THE REGULATION
AFFECTS INTERSTATE COMMERCE.  P. 113. 

2.  THE FEDERAL MOTOR CARRIER ACT OF 1935 DOES NOT INCLUDE THE
REGULATION OF CASUAL OR OCCASIONAL INTERSTATE TRANSPORTATION OF
PASSENGERS BY PERSONS NOT ENGAGED IN SUCH TRANSPORTATION AS A REGULAR
OCCUPATION OR BUSINESS, SEC. 303(B)(9).  P. 112. 

3.  A CALIFORNIA STATUTE REQUIRES EVERY "TRANSPORTATION AGENT,"
DEFINED AS ONE WHO SELLS OR OFFERS TO SELL OR NEGOTIATE FOR
TRANSPORTATION ON THE PUBLIC HIGHWAYS OF THE STATE, TO OBTAIN A LICENSE
ASSURING HIS FITNESS AND TO FILE A BOND SECURING FAITHFUL PERFORMANCE
OF THE TRANSPORTATION CONTRACTS WHICH HE NEGOTIATES.  IT APPLIES ALIKE
TO AGENTS NEGOTIATING FOR INTERSTATE OR INTRASTATE COMMERCE, IS NOT A
REVENUE MEASURE, AND DOES NOT APPEAR TO INCREASE THE COST OF INTERSTATE
COMMERCE.  ITS APPARENT OBJECT IS TO SAFEGUARD MEMBERS OF THE PUBLIC,
DESIRING TO SECURE TRANSPORTATION BY MOTOR VEHICLE, FROM FRAUD AND
OVERREACHING.  HELD, CONSISTENT WITH THE COMMERCE CLAUSE WHEN APPLIED
TO A PERSON WHO, WITHOUT HAVING OBTAINED THE LICENSE OR FURNISHED THE
BOND, ARRANGED FOR MOTOR TRANSPORTATION OF PASSENGERS FROM CALIFORNIA
TO TEXAS, BY A CARRIER WHO, SO FAR AS APPEARS, MADE ONLY THE SINGLE
TRIP.  P. 115. 

4.  DI SANTO V. PENNSYLVANIA, 273 U.S. 34, OVERRULED.  P. 116. 

CALIFORNIA V. THOMPSON. 

CERTIORARI TO THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT, LOS
ANGELES COUNTY, CALIFORNIA. 

CERTIORARI, 312 U.S. 672, TO REVIEW THE REVERSAL OF A CONVICTION ON A
CHARGE OF MISDEMEANOR. 

IN ORDER TO PROTECT THE PUBLIC SAFETY AND WELFARE, AND TO PREVENT
FRAUD UPON THE PUBLIC, THE BUSINESS OF ACTING AS AGENT OR BROKER FOR
THE SALE OF TRANSPORTATION OF PERSONS BY MEANS OF PRIVATE PASSENGER
MOTOR VEHICLES OPERATED CASUALLY BY UNLICENSED PERSONS MUST BE
REGULATED. 

THE DECISION BELOW THAT EVEN IN THE ABSENCE OF LEGISLATION BY
CONGRESS THE STATES ARE WITHOUT SUCH POWER IN RESPECT OF TRANSPORTATION
TO DESTINATIONS BEYOND THE STATE, CONFLICTS WITH DECISIONS OF THIS
COURT. 

THIS LEGISLATION IS NOT A DIRECT BURDEN UPON INTERSTATE COMMERCE. 
BRADLEY V. PUBLIC UTILITIES COMM'N, 289 U.S. 92; CONTINENTAL BAKING CO.
V. WOODRING, 286 U.S. 352; FRANCIS V. ALLEN, 54 ARIZ. 377, 386; BOWEN
V. HANNAH, 167 TENN. 451, 463; MARTIN V. RAILROAD COMM'N, 93 S.W.2D
1155, 1157, 1159; CONTRA, EX PARTE TALKINGTON, 132 TEX. CR. R. 361; EX
PARTE MARTIN, 127 TEX. CR. R. 25. 

THE PRINCIPLES ENUNCIATED IN THE DISSENTING OPINIONS IN DI SANTO V.
PENNSYLVANIA, 273 U.S. 34, HAVE BEEN ADOPTED AND APPROVED BY THIS COURT
IN SUBSEQUENT DECISIONS.  CONTINENTAL BAKING CO. V. WOODRING, 286 U.S.
352; BRADLEY V. PUBLIC UTILITIES COMM'N, 289 U.S. 92; H.P. WELCH CO. V.
NEW HAMPSHIRE, 306 U.S. 79; EICHHOLZ V. PUBLIC SERVICE COMM'N, 306 U.S.
268; ZIFFRIN V. REEVES, 308 U.S. 132; MAURER V. HAMILTON, 309 U.S. 598;
HARTFORD ACCIDENT & INDEMNITY CO. V. ILLINOIS, 298 U.S. 155. 

THE MOTOR CARRIER ACT OF 1935 EXCLUDES FROM ITS OPERATION THE CASUAL,
OCCASIONAL OR RECIPROCAL TRANSPORTATION OF PASSENGERS IN INTERSTATE
COMMERCE, FOR COMPENSATION, BY ANY PERSON NOT ENGAGED IN TRANSPORTATION
BY MOTOR VEHICLE AS A REGULAR OCCUPATION OR BUSINESS.  HALE BROKER
APPLICATION, 14 M.C.C. 451, 453; MICHAUX BROKER APPLICATION, 11 M.C.C.
317, 318; FRANK BROKER APPLICATION, 8 M.C.C. 15, 19.  SEE MAURER V.
HAMILTON, SUPRA; H.P. WELCH CO. V. NEW HAMPSHIRE, SUPRA. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

A STATUTE OF CALIFORNIA, CH. 390, STATUTES OF 1933, P. 1011, AS
AMENDED BY CH. 665, STATUTES OF 1935, P. 1833, DEFINES A TRANSPORTATION
AGENT AS ONE WHO "SELLS OR OFFERS TO SELL OR NEGOTIATE FOR"
TRANSPORTATION OVER THE PUBLIC HIGHWAYS OF THE STATE, SEC. 2, AND
REQUIRES EVERY SUCH AGENT TO PROCURE A LICENSE FROM THE STATE RAILROAD
COMMISSION AUTHORIZING HIM SO TO ACT.  BY SECS. 6, 7, AND 8,
PREREQUISITES TO THE LICENSE ARE DETERMINATION BY THE COMMISSION OF THE
APPLICANT'S FITNESS TO EXERCISE THE LICENSED PRIVILEGE, THE PAYMENT OF
A LICENSE FEE OF $1.00, AND THE FILING BY THE APPLICANT OF A BOND IN
THE SUM OF $1,000, CONDITIONED UPON THE FAITHFUL PERFORMANCE OF THE
TRANSPORTATION CONTRACTS WHICH HE NEGOTIATES.  BY SEC. 16 ANY PERSON
ACTING AS A TRANSPORTATION AGENT WITHOUT A LICENSE IS GUILTY OF A
MISDEMEANOR.  THE QUESTION FOR DECISION IS WHETHER THE STATUTORY
EXACTION OF THE LICENSE AND BOND INFRINGES THE COMMERCE CLAUSE OF THE
CONSTITUTION WHEN APPLIED TO ONE WHO NEGOTIATES FOR THE TRANSPORTATION
INTERSTATE OF PASSENGERS OVER THE PUBLIC HIGHWAYS OF THE STATE. 

RESPONDENT WAS CONVICTED OF VIOLATION OF THE STATUTE BY ARRANGING FOR
THE TRANSPORTATION BY MOTOR VEHICLE, OF PASSENGERS FROM LOS ANGELES,
CALIFORNIA, TO DALLAS, TEXAS, BY ONE WHO, SO FAR AS APPEARS, MADE ONLY
THE SINGLE TRIP IN QUESTION.  THE STATE APPELLATE COURT REVERSED THE
JUDGMENT OF CONVICTION, HOLDING ON THE AUTHORITY OF DI SANTO V.
PENNSYLVANIA, 273 U.S. 34, THAT THE STATUTE AS APPLIED INFRINGES THE
COMMERCE CLAUSE.  WE GRANTED CERTIORARI, 312 U.S. 672, THE QUESTION,
CONSIDERED IN THE LIGHT OF OUR DECISIONS SINCE THE DI SANTO CASE,
SUSTAINING STATE REGULATIONS AFFECTING INTERSTATE TRANSPORTATION BY
MOTOR VEHICLE, BEING OF IMPORTANCE. 

CONGRESS HAS NOT UNDERTAKEN TO REGULATE THE ACTS FOR WHICH RESPONDENT
WAS CONVICTED OR THE INTERSTATE TRANSPORTATION TO WHICH THEY RELATED. 
THE MOTOR CARRIER ACT OF 1935, 49 STAT. 543, 49 U.S.C. SECS. 301-327,
WHICH APPLIES TO CERTAIN CLASSES OF COMMON AND CONTRACT INTERSTATE
CARRIERS BY MOTOR VEHICLE, EXCLUDES FROM ITS OPERATION THE CASUAL OR
OCCASIONAL TRANSPORTATION BY MOTOR VEHICLE OF PASSENGERS IN INTERSTATE
COMMERCE BY PERSONS NOT ENGAGED IN SUCH TRANSPORTATION AS A REGULAR
OCCUPATION OR BUSINESS, SEC. 303(B)(9).  HENCE WE ARE CONCERNED HERE
ONLY WITH THE CONSTITUTIONAL AUTHORITY OF THE STATE TO REGULATE THOSE
WHO, WITHIN THE STATE, AID OR PARTICIPATE IN A FORM OF INTERSTATE
COMMERCE OVER WHICH CONGRESS HAS NOT UNDERTAKEN TO EXERCISE ITS
REGULATORY POWER. 

THE STATUTE IS NOT A REVENUE MEASURE.  CF. TEXAS TRANSPORT CO. V. NEW
ORLEANS, 264 U.S. 150.  IT APPLIES ALIKE TO TRANSPORTATION AGENTS WHO
NEGOTIATE FOR TRANSPORTATION INTRASTATE AS WELL AS INTERSTATE AND SO
DOES NOT DISCRIMINATE AGAINST INTERSTATE COMMERCE.  CF. REAL SILK MILLS
V. PORTLAND, 268 U.S. 325.  IT DOES NOT APPEAR THAT THE REGULATION WILL
OPERATE TO INCREASE THE COST OF THE TRANSPORTATION OR IN RESPECTS NOT
ALREADY INDICATED AFFECT INTERSTATE COMMERCE.  IT IS NOT SHOWN TO BE
OTHER THAN WHAT ON ITS FACE IT APPEARS TO BE, A MEASURE TO SAFEGUARD
THE MEMBERS OF THE PUBLIC DESIRING TO SECURE TRANSPORTATION BY MOTOR
VEHICLE, WHO ARE PECULIARLY UNABLE TO PROTECT THEMSELVES FROM FRAUD AND
OVERREACHING OF THOSE ENGAGED IN A BUSINESS NOTORIOUSLY SUBJECT TO
THOSE ABUSES. 

AS THIS COURT HAS OFTEN HAD OCCASION TO POINT OUT, THE COMMERCE
CLAUSE, IN CONFERRING ON CONGRESS POWER TO REGULATE COMMERCE, DID NOT
WHOLLY WITHDRAW FROM THE STATES THE POWER TO REGULATE MATTERS OF LOCAL
CONCERN WITH RESPECT TO WHICH CONGRESS HAS NOT EXERCISED ITS POWER,
EVEN THOUGH THE REGULATION AFFECTS INTERSTATE COMMERCE.  EVER SINCE
WILLSON V. BLACK BIRD CREEK MARSH CO., 2 PET. 245, AND COOLEY V. BOARD
OF PORT WARDENS, 12 HOW.  299, IT HAS BEEN RECOGNIZED THAT THERE ARE
MATTERS OF LOCAL CONCERN, THE REGULATION OF WHICH UNAVOIDABLY INVOLVES
SOME REGULATION OF INTERSTATE COMMERCE, BUT WHICH BECAUSE OF THEIR
LOCAL CHARACTER AND THEIR NUMBER AND DIVERSITY MAY NEVER BE ADEQUATELY
DEALT WITH BY CONGRESS.  BECAUSE OF THEIR LOCAL CHARACTER, ALSO, THERE
IS WIDE SCOPE FOR LOCAL REGULATION WITHOUT IMPAIRING THE UNIFORMITY OF
CONTROL OF THE NATIONAL COMMERCE IN MATTERS OF NATIONAL CONCERN AND
WITHOUT MATERIALLY OBSTRUCTING THE FREE FLOW OF COMMERCE WHICH WERE THE
PRINCIPAL OBJECTS SOUGHT TO BE SECURED BY THE COMMERCE CLAUSE. 
NOTWITHSTANDING THE COMMERCE CLAUSE, SUCH REGULATION IN THE ABSENCE OF
CONGRESSIONAL ACTION HAS, FOR THE MOST PART, BEEN LEFT TO THE STATES BY
THE DECISIONS OF THIS COURT, SUBJECT ONLY TO OTHER APPLICABLE
CONSTITUTIONAL RESTRAINTS.  SEE CASES COLLECTED IN DI SANTO V.
PENNSYLVANIA, SUPRA, 40. 

A STATE MAY LICENSE TRAINMEN ENGAGED IN INTERSTATE COMMERCE IN ORDER
TO INSURE THEIR SKILL AND FITNESS.  SMITH V. ALABAMA, 124 U.S. 465;
NASHVILLE, C. & ST. L. RY. CO. V. ALABAMA, 128 U.S. 96.  IT MAY DEFINE
THE SIZE OF CREWS MANNING INTERSTATE TRAINS, CHICAGO, R.I. & P. RY. CO.
V. ARKANSAS, 219 U.S. 453; MISSOURI PACIFIC R. CO. V. NORWOOD, 283 U.S.
249, AND PRESCRIBE REGULATIONS FOR PAYMENT OF THEIR WAGES.  ERIE R. CO.
V. WILLIAMS, 233 U.S. 685.  IT MAY REQUIRE INTERSTATE PASSENGER CARS TO
BE HEATED AND GUARD POSTS TO BE PLACED ON BRIDGES OF AN INTERSTATE
RAILROAD.  NEW YORK, N.H. & H.R. CO. V. NEW YORK, 165 U.S. 628.  IT MAY
LIMIT THE SPEED OF INTERSTATE TRAINS WITHIN CITY LIMITS.  ERB V.
MORASCH, 177 U.S. 584.  IT MAY REQUIRE AN INTERSTATE RAILROAD TO
ELIMINATE GRADE CROSSINGS.  ERIE R. CO. V. PUBLIC UTILITY
COMMISSIONERS, 254 U.S. 394, 409, 412.  IT MAY PASS LOCAL QUARANTINE
LAWS APPLICABLE TO MERCHANDISE MOVING IN INTERSTATE COMMERCE, AS A
MEANS OF PROTECTING LOCAL HEALTH.  MORGAN'S S.S. CO. V. LOUISIANA, 118
U.S. 455; COMPAGNIE FRANCAISE V. BOARD OF HEALTH, 186 U.S. 380.  IT MAY
REGULATE AND PROTECT THE SAFE AND CONVENIENT USE OF ITS HARBORS AND
NAVIGABLE WATERWAYS UNLESS THERE IS CONFLICT WITH SOME ACT OF
CONGRESS.  WILLSON V. BLACK BIRD CREEK MARSH CO., SUPRA; SEE CLYDE
MALLORY LINES V. ALABAMA, 296 U.S. 261, 267.  IT MAY REGULATE PILOTS
AND PILOTAGE IN ITS HARBORS.  COOLEY V. BOARD OF PORT WARDENS, SUPRA.
WHERE, AS HERE, CONGRESS HAS NOT ENTERED THE FIELD, A STATE MAY PASS
INSPECTION LAWS AND REGULATIONS, APPLICABLE TO ARTICLES OF INTERSTATE
COMMERCE, DESIGNED TO SAFEGUARD THE INHABITANTS OF THE STATE FROM
FRAUD, PROVIDED ONLY THAT THE REGULATION NEITHER DISCRIMINATES AGAINST
NOR SUBSTANTIALLY OBSTRUCTS THE COMMERCE.  TURNER V. MARYLAND, 107 U.S.
38; PLUMLEY V. MASSACHUSETTS, 155 U.S. 461; PATAPSCO GUANO CO. V. NORTH
CAROLINA, 171 U.S. 345, 357, 358; SAVAGE V. JONES, 225 U.S. 501; SEE
ALSO MINNESOTA RATE CASES, 230 U.S. 352, 398-412 AND CASES CITED; SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177, 185-191 AND
CASES CITED. 

THE PRESENT CASE IS NOT ONE OF PROHIBITING INTERSTATE COMMERCE OR
LICENSING IT ON CONDITIONS WHICH RESTRICT OR OBSTRUCT IT.  CF. CRUTCHER
V. KENTUCKY, 141 U.S. 47; DAHNKE-WALKER CO. V. BONDURANT, 257 U.S.
282.  FOR HERE THE REGULATION IS APPLIED TO ONE WHO IS NOT HIMSELF
ENGAGED IN THE TRANSPORTATION BUT WHO ACTS ONLY AS BROKER OR
INTERMEDIARY IN NEGOTIATING A TRANSPORTATION CONTRACT BETWEEN THE
PASSENGERS AND THE CARRIER.  THE LICENSE REQUIRED OF THOSE ENGAGED IN
SUCH BUSINESS IS NOT CONDITIONED UPON ANY CONTROL OR RESTRICTION OF THE
MOVEMENT OF THE TRAFFIC INTERSTATE BUT ONLY ON THE GOOD CHARACTER AND
RESPONSIBILITY OF THOSE ENGAGED LOCALLY AS TRANSPORTATION BROKERS. 

FRAUDULENT OR UNCONSCIONABLE CONDUCT OF THOSE SO ENGAGED WHICH IS
INJURIOUS TO THEIR PATRONS, IS PECULIARLY A SUBJECT OF LOCAL CONCERN
AND THE APPROPRIATE SUBJECT OF LOCAL REGULATION.  IN EVERY PRACTICAL
SENSE REGULATION OF SUCH CONDUCT IS BEYOND THE EFFECTIVE REACH OF
CONGRESSIONAL ACTION.  UNLESS SOME MEASURE OF LOCAL CONTROL IS
PERMISSIBLE, IT MUST GO LARGELY UNREGULATED.  IN ANY CASE, UNTIL
CONGRESS UNDERTAKES ITS REGULATION, WE CAN FIND NO ADEQUATE BASIS FOR
SAYING THAT THE CONSTITUTION, INTERPRETED AS A WORKING INSTRUMENT OF
GOVERNMENT, HAS FORECLOSED REGULATION, SUCH AS THE PRESENT, BY LOCAL
AUTHORITY. 

IN DI SANTO V. PENNSYLVANIA, THIS COURT TOOK A DIFFERENT VIEW. 
FOLLOWING WHAT IT CONCEIVED TO BE THE REASONING OF MCCALL V.
CALIFORNIA, 136 U.S. 104, IT HELD THAT A PENNSYLVANIA STATUTE REQUIRING
OTHERS THAN RAILROAD OR STEAMSHIP COMPANIES, WHO ENGAGE IN THE
INTRASTATE SALE OF STEAMSHIP TICKETS OR OF ORDERS FOR TRANSPORTATION TO
AND FROM FOREIGN COUNTRIES, TO PROCURE A LICENSE BY GIVING PROOF OF
GOOD MORAL CHARACTER AND FILING A BOND AS SECURITY AGAINST FRAUD AND
MISREPRESENTATION TO PURCHASERS, WAS AN INFRINGEMENT OF THE COMMERCE
CLAUSE.  SINCE THE DECISION IN THAT CASE THIS COURT HAS BEEN REPEATEDLY
CALLED UPON TO EXAMINE THE CONSTITUTIONALITY OF NUMEROUS LOCAL
REGULATIONS AFFECTING INTERSTATE MOTOR VEHICLE TRAFFIC.  IT HAS
UNIFORMLY HELD THAT IN THE ABSENCE OF PERTINENT CONGRESSIONAL
LEGISLATION THERE IS CONSTITUTIONAL POWER IN THE STATES TO REGULATE
INTERSTATE COMMERCE BY MOTOR VEHICLE WHEREVER IT AFFECTS THE SAFETY OF
THE PUBLIC OR THE SAFETY AND CONVENIENT USE OF ITS HIGHWAYS, PROVIDED
ONLY THAT THE REGULATION DOES NOT IN ANY OTHER RESPECT UNNECESSARILY
OBSTRUCT INTERSTATE COMMERCE.  CONTINENTAL BAKING CO. V. WOODRING, 286
U.S. 352, 371; BRADLEY V. PUBLIC UTILITIES COMMISSION, 289 U.S. 92, 95;
SEE SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, AND CASES
CITED; H.P. WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79, 83; EICHHOLZ V.
PUBLIC SERVICE COMMISSION, 306 U.S. 268; MAURER V. HAMILTON, 309 U.S.
598, 603; AND SEE ZIFFRIN, INC. V. REEVES, 308 U.S. 132. 

IF THERE IS AUTHORITY IN THE STATE, IN THE EXERCISE OF ITS POLICE
POWER, TO ADOPT SUCH REGULATIONS AFFECTING INTERSTATE TRANSPORTATION,
IT MUST BE DEEMED TO POSSESS THE POWER TO REGULATE THE NEGOTIATIONS FOR
SUCH TRANSPORTATION WHERE THEY AFFECT MATTERS OF LOCAL CONCERN WHICH
ARE IN OTHER RESPECTS WITHIN STATE REGULATORY POWER, AND WHERE THE
REGULATION DOES NOT INFRINGE THE NATIONAL INTEREST IN MAINTAINING THE
FREE FLOW OF COMMERCE AND IN PRESERVING UNIFORMITY IN THE REGULATION OF
THE COMMERCE IN MATTERS OF NATIONAL CONCERN.  SEE HARTFORD ACCIDENT &
INDEMNITY CO. V. ILLINOIS, 298 U.S. 155. 

THE DECISION IN THE DI SANTO CASE WAS A DEPARTURE FROM THIS PRINCIPLE
WHICH HAS BEEN RECOGNIZED SINCE COOLEY V. BOARD OF PORT WARDENS, SUPRA.
IT CANNOT BE RECONCILED WITH LATER DECISIONS OF THIS COURT WHICH HAVE
LIKEWISE RECOGNIZED AND APPLIED THE PRINCIPLE, AND IT CAN NO LONGER BE
REGARDED AS CONTROLLING AUTHORITY.  REVERSED. 
..END :






CASKEY BAKING CO. V. VIRGINIA, 313 U.S. 117 


NO. 676.  ARGUED APRIL 2, 1941.  - DECIDED APRIL 28, 1941.  - 176 VA.
170 - 10 S.E.2D 535, AFFIRMED. 


A STATUTE OF VIRGINIA IMPOSES AN ANNUAL FEE OF $100 FOR EACH VEHICLE
USED IN THE BUSINESS OF PEDDLING GOODS, WARES, OR MERCHANDISE "BY
SELLING AND DELIVERING THE SAME AT THE SAME TIME TO LICENSED DEALERS OR
RETAILERS AT OTHER THAN A DEFINITE PLACE OF BUSINESS OPERATED BY THE
SELLER."  THE STATUTE EXEMPTS MANUFACTURERS TAXABLE BY THE STATE ON
CAPITAL; DISTRIBUTORS OF MANUFACTURED GOODS PAYING A STATE LICENSE TAX
ON THEIR PURCHASES; AND WHOLESALE DEALERS REGULARLY LICENSED BY THE
STATE.  HELD - AS APPLIED TO A FOREIGN CORPORATION WHICH HAD ITS
PRINCIPAL OFFICE AND PLACE OF BUSINESS OUTSIDE OF THE STATE AND WHOSE
DRIVERS BROUGHT INTO THE STATE BREAD WHICH THEY THERE SOLD AND
DELIVERED TO REGULAR CUSTOMERS - NOT IN CONTRAVENTION OF THE COMMERCE
CLAUSE OR THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION.  P.
119. 

CASKEY BAKING CO., INC. V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

APPEAL FROM THE AFFIRMANCE OF A CONVICTION FOR VIOLATION OF A STATE
LICENSE TAX STATUTE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT, A CORPORATION OF WEST VIRGINIA, HAS ITS PRINCIPAL
OFFICE AND PLACE OF BUSINESS IN MARTINSBURG, IN THAT STATE.  AS A
FOREIGN CORPORATION REGISTERED IN VIRGINIA, IT HAS PAID THE LATTER
STATE AN ANNUAL REGISTRATION FEE AND AN INCOME TAX ON ITS NET PROFITS
ALLOCABLE TO ITS VIRGINIA BUSINESS.  IT MAKES BREAD WHICH IT SELLS TO
GROCERS AND OTHER RETAILERS IN TERRITORY ADJACENT TO MARTINSBURG,
INCLUDING WINCHESTER AND OTHER PLACES IN VIRGINIA.  APPELLANT'S TRUCKS
CARRY THE BREAD INTO VIRGINIA WHERE THEY SERVE REGULAR ROUTES AT
REGULAR INTERVALS.  THE DRIVERS CALL ONLY ON REGULAR CUSTOMERS, INQUIRE
OF EACH HOW MUCH BREAD HE NEEDS AND, IN RESPONSE TO HIS ORDER, TAKE IT
FROM THE TRUCK AND DELIVER IT TO THE CUSTOMER.  THUS EACH SUCH
TRANSACTION IN VIRGINIA IS A SALE AND DELIVERY IN THAT STATE TO A
REGULAR CUSTOMER. 

THE COMPANY HAS NO PROPERTY PERMANENTLY LOCATED IN VIRGINIA AND NO
PLACE OF BUSINESS IN THE STATE, EXCEPT THAT, AS REQUIRED BY THE STATUTE
RESPECTING REGISTERED FOREIGN CORPORATIONS, IT MAINTAINS AN OFFICE IN
THE STATE WHERE CLAIMS AGAINST IT MAY BE AUDITED, SETTLED, AND PAID. 

THE APPELLANT WAS CONVICTED FOR MAKING A SALE IN VIRGINIA WITHOUT
HAVING PROCURED A LICENSE PURSUANT TO SEC. 192B  FN1  OF THE TAX CODE
OF VIRGINIA AND A FINE WAS IMPOSED.  THE SUPREME COURT OF APPEALS
AFFIRMED THE CONVICTION.  FN2 

SO FAR AS MATERIAL THE STATUTE PROVIDES:  "THERE IS HEREBY IMPOSED AN
ANNUAL STATE LICENSE TAX ON EVERY PERSON, FIRM AND CORPORATION (OTHER
THAN  ...  A MANUFACTURER TAXABLE ON CAPITAL BY THIS STATE, OR A
DISTRIBUTOR OF MANUFACTURED GOODS PAYING A STATE LICENSE TAX ON HIS
PURCHASES) WHO OR WHICH SHALL PEDDLE GOODS, WARES OR MERCHANDISE BY
SELLING AND DELIVERING THE SAME AT THE SAME TIME TO LICENSED DEALERS OR
RETAILERS AT OTHER THAN A DEFINITE PLACE OF BUSINESS OPERATED BY THE
SELLER.  PROVIDED, HOWEVER, THIS ACT SHALL NOT BE CONSTRUED TO APPLY TO
WHOLESALE DEALERS REGULARLY LICENSED BY THIS STATE, AND WHO SHALL AT
THE SAME TIME SELL AND DELIVER MERCHANDISE TO RETAIL MERCHANTS."  THE
ANNUAL FEE IS $100 FOR EACH VEHICLE USED IN THE BUSINESS. 

IT IS ADMITTED THAT APPELLANT WAS NOT A MANUFACTURER TAXABLE ON ITS
CAPITAL STOCK, NOR A DISTRIBUTOR OF MANUFACTURED PRODUCTS PAYING A
STATE LICENSE TAX ON ITS PURCHASES, NOR A LICENSED WHOLESALE DEALER,
AND DID NOT, THEREFORE, COME WITHIN ANY OF THE CLASSES EXEMPTED BY THE
ACT. 

IN THE STATE COURTS, AND HERE, THE APPELLANT CHALLENGED THE STATUTE
AS CONTRAVENING THE COMMERCE CLAUSE AND THE EQUAL PROTECTION CLAUSE OF
THE FEDERAL CONSTITUTION.  ITS POSITION IS THAT IT IS DOING EITHER AN
INTERSTATE BUSINESS WHICH THE STATE MAY NOT BURDEN BY IMPOSING A
LICENSE TAX, OR AN INTRASTATE BUSINESS AS TO WHICH THE EXACTION WORKS A
FORBIDDEN DISCRIMINATION.  WE HOLD BOTH CONTENTIONS UNTENABLE. 

1.  WHILE THE TRANSPORTATION OF BREAD ACROSS THE STATE LINE IS
INTERSTATE COMMERCE, THAT IS NOT THE ACTIVITY WHICH IS LICENSED OR
TAXED.  THE PURELY LOCAL BUSINESS OF PEDDLING IS WHAT THE ACT HITS, AND
THIS IRRESPECTIVE OF THE SOURCE OF THE GOODS SOLD.  IT IS SETTLED THAT
SUCH A STATUTE IMPOSES NO BURDEN UPON INTERSTATE COMMERCE WHICH THE
CONSTITUTION INTERDICTS.  FN3  THE APPELLANT, HOWEVER, URGES THAT THE
ACT DISCRIMINATES AGAINST INTERSTATE COMMERCE BY EXEMPTING FROM ITS
OPERATION THE PRIVILEGE OF SALES BY MANUFACTURERS PAYING TAX ON THEIR
CAPITAL EMPLOYED IN MANUFACTURE IN VIRGINIA.  IT IS SAID THAT IF ITS
BAKERY WERE SITUATE IN VIRGINIA THE APPELLANT WOULD HAVE THE BENEFIT OF
THIS EXEMPTION AND, SINCE IT IS NOT, THE MARKETING OF APPELLANT'S GOODS
SHIPPED INTO THE STATE IS THE TARGET OF A HOSTILE DISCRIMINATION.  BUT
THE ARGUMENT OVERLOOKS THE FACT THAT PEDDLERS RESIDENT IN VIRGINIA WHO
BUY THEIR GOODS WITHIN THE STATE, OR BUY OR PROCURE THEM FROM EXTRA
STATE SOURCES, ARE ALIKE SUBJECT TO THE ACT.  THE CONTENTION THAT THE
ACT DISCRIMINATES AGAINST INTERSTATE COMMERCE BY VIRTUE OF THE
EXEMPTION IN QUESTION IS NEGATIVED BY OUR DECISIONS.  FN4 

2.  EXAMINATION OF THE TAX CODE OF VIRGINIA DISCLOSES THAT THE ACT IN
QUESTION IS BUT ONE PORTION OF A COMPREHENSIVE SCHEME OF TAXATION. 
MANUFACTURERS WHO SELL THEIR OWN PRODUCTS PAY A TAX ON CAPITAL, WHICH
THE STATE DEEMS SUFFICIENT TO COVER ALL THEIR ACTIVITIES, INCLUDING THE
VENDING OF THE GOODS.  FN5  WHOLESALE MERCHANTS WHO HAVE A FIXED PLACE
OF BUSINESS PAY A LICENSE TAX MEASURED BY A PERCENTAGE OF ALL THEIR
PURCHASES; AND IF THEY ARE ALSO LICENSED BY THE TOWN OR CITY IN WHICH
THEY HAVE THEIR PLACE OF BUSINESS OR, IN LIEU THEREOF, ARE TAXED BY
SUCH TOWN OR CITY ON THE CAPITAL EMPLOYED IN THE BUSINESS, THEY MAY
SELL AND DELIVER AT THE SAME TIME AND PLACE ANYWHERE IN THE STATE
WITHOUT PAYMENT OF ANY ADDITIONAL LICENSE TAX.  FN6  EVERY DISTRIBUTING
HOUSE, WHETHER OPERATED BY A MANUFACTURER OR WHOLESALER, FOR
DISTRIBUTING GOODS AMONGST THE OWNER'S RETAIL STORES, MUST BE LICENSED
AND PAY THE SAME TAX AS IF IT WERE A WHOLESALER.  FN7 RETAIL MERCHANTS
FN8  AND PEDDLERS AT RETAIL  FN9  MUST BE LICENSED AND PAY LICENSE
TAXES,  - THE FORMER A PERCENTAGE OF THE VALUE OF HIS PURCHASES AND THE
LATTER A FIXED ANNUAL FEE.  THOSE WHO HAVE NO FIXED PLACE OF BUSINESS,
WHO PEDDLE THEIR WARES ONLY TO LICENSED DEALERS OR RETAILERS AT THE
PLACES OF BUSINESS OF THE LATTER, FALL INTO NONE OF THE DESCRIBED
CLASSES.  AS THE COURT BELOW POINTS OUT, WERE IT NOT FOR SEC. 192B,
SUCH PEDDLERS WOULD BE THE ONLY VENDORS IN VIRGINIA TO ESCAPE SOME FORM
OF TAXATION. 

PEDDLERS AT WHOLESALE ARE NOT ENTITLED TO BE LICENSED AND TAXED ON
THE SAME BASIS AS OTHER VENDORS, AS RESPECTS EITHER FORM OR AMOUNT.  AS
WE HAVE REPEATEDLY HELD, THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT DOES NOT PREVENT A STATE FROM CLASSIFYING BUSINESSES FOR
TAXATION OR IMPOSE ANY IRON RULE OF EQUALITY.  FN10  SOME OCCUPATIONS
MAY BE TAXED THOUGH OTHERS ARE NOT.  SOME MAY BE TAXED AT ONE RATE,
OTHERS AT A DIFFERENT RATE.  CLASSIFICATION IS NOT DISCRIMINATION.  IT
IS ENOUGH THAT THOSE IN THE SAME CLASS ARE TREATED WITH EQUALITY.  THAT
IS TRUE HERE.  AFFIRMED. 

FN1  ACTS OF VIRGINIA, 1932, P. 376, 1938, P. 440; VA. TAX CODE,
1936, 192B, MICHIE, P. 2458, 1940 SUPP. 472. 

FN2  176 VA. 170, 10 S.E.2D 535. 

FN3  MACHINE CO. V. GAGE, 100 U.S. 676; EMERT V. MISSOURI, 156 U.S.
296; WAGNER V. COVINGTON, 251 U.S. 95. 

FN4  ARMOUR & CO. V. VIRGINIA, 246 U.S. 1, AND CASES THEREIN CITED. 

FN5  TAX CODE OF VIRGINIA, 1936, SECS. 73, 188, VA. CODE, 1936,
MICHIE, PP. 2416, 2451. 

FN6  TAX CODE OF VIRGINIA, SEC. 188, VA. CODE, 1936, MICHIE, PP. 2451
2452. 

FN7  IBID. 

FN8  IBID. 

FN9  ID., SEC. 192, VA. CODE, 1936, MICHIE, P. 2457. 

FN10  STATE BOARD OF TAX COMMISSIONERS V. JACKSON, 283 U.S. 527, 537,
AND CASES CITED. 
..END :









CITY BANK CO. V. HELVERING, 313 U.S. 121 


NOS. 408 AND 409.  ARGUED APRIL 1, 1941.  - DECIDED APRIL 28, 1941.  -
112 F.2D 457, AFFIRMED. 


THE ADMINISTRATION OF A TRUST BY A TESTAMENTARY TRUSTEE WHOSE DUTIES
AND ACTIVITIES ARE CONFINED TO HOLDING AND SAFEGUARDING A FUND OF
STOCKS AND BONDS, COLLECTING INCOME, MAKING SAFE INVESTMENTS AND
REINVESTMENTS, DISTRIBUTING INCOME TO BENEFICIARIES, KEEPING ACCOUNTS,
PREPARING AND FILING INCOME TAX RETURNS, ETC., IS NOT A "CARRYING ON
BUSINESS" WITHIN SEC. 23(A) OF THE REVENUE ACT OF 1928.  HENCE THE
COMMISSIONS ALLOWED AND PAID THE TRUSTEE ARE NOT DEDUCTIBLE UNDER THAT
TAXABLE INCOME THE TRUST IS SUBJECT TO THE SAME RULES AS AN INDIVIDUAL,
REVENUE ACT, 1928, SECS. 161-162.  HIGGINS V. COMMISSIONER, 312 U.S.
212, FOLLOWED.  P. 124. 

CITY BANK FARMERS TRUST CO., TRUSTEE, V. HELVERING, COMMISSIONER OF
INTERNAL REVENUE. 

ON WRITS OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

CERTIORARI, 312 U.S. 672, TO REVIEW A JUDGMENT AFFIRMING A DECISION
OF THE BOARD OF TAX APPEALS, 39 B.T.A. 29. 

THE COMMISSIONER'S CONCESSION AT THE TRIAL THAT CERTAIN ITEMS WERE
DEDUCTIBLE AS BUSINESS EXPENSES IN COMPUTING THE NET INCOME OF THE
TRUSTS WAS AN ADMISSION THAT THE ADMINISTRATION OF THE TRUSTS WAS A
BUSINESS.  THAT ISSUE WAS THUS REMOVED FROM THE CASE.  THE COMMISSIONER
SHOULD NOT HAVE BEEN PERMITTED TO REPUDIATE HIS CONCESSION. 

BY SETTLED AND UNIFORM ADMINISTRATIVE PRACTICE, "ORDINARY AND
NECESSARY" TRUSTEES' COMMISSIONS HAVE BEEN ALLOWED AS "BUSINESS"
EXPENSES.  WHILE THIS ADMINISTRATIVE PRACTICE HAS BEEN IN EFFECT, THE
STATUTORY PROVISION ALLOWING DEDUCTIONS FOR ORDINARY AND NECESSARY
BUSINESS EXPENSES HAS BEEN REENACTED TWELVE TIMES.  THIS INDICATES
CONGRESSIONAL APPROVAL OF THE ADMINISTRATIVE PRACTICE AND GIVES TO IT
THE FORCE AND EFFECT OF LAW. 

THE ADMINISTRATIVE PRACTICE IS SOUND, AND SHOULD BE APPROVED. 
HIGGINS V. COMMISSIONER, 312 U.S. 212, INVOLVING PERSONAL INVESTMENT
ACTIVITIES OF AN INDIVIDUAL, IS DISTINGUISHABLE.  HERE, THE TRUSTS WERE
SEPARATE LEGAL AND TAXABLE ENTITIES, AND THE TRUSTEE WAS ADMINISTERING
THE TRUST ESTATES FOR THE BENEFIT OF OTHERS.  THEREFORE, THE
COMMISSIONS OF THE TRUSTEE AND THE OTHER EXPENSES OF ADMINISTERING THE
TRUSTS CAN NOT POSSIBLY BE REGARDED AS "PERSONAL" EXPENSES. 

THE TRUSTS WERE ESTABLISHED FOR THE INVESTMENT AND REINVESTMENT OF A
LARGE SUM AND ACCUMULATING AND REINVESTING THE INCOME THEREFROM, THUS
BUILDING UP AN EVER-INCREASING FUND.  INVESTMENT ACTIVITIES OF THAT
NATURE, WHEN CARRIED ON BY A CORPORATION OR A TRUST, HAVE OFTEN BEEN
HELD TO CONSTITUTE THE CONDUCT OF BUSINESS. 

THE DISALLOWANCE OF TRUSTEES' COMMISSIONS AS "BUSINESS" EXPENSES
WOULD PRODUCE DIFFICULT COMPLICATIONS, AND WOULD RESULT IN ONLY A
SLIGHT INCREASE IN THE PUBLIC REVENUES. 

THE COMMISSIONS HERE IN ISSUE SHOULD NOT BE DISALLOWED MERELY BECAUSE
THEY WERE COMPUTED ON THE BASIS OF AND PAID OUT OF PRINCIPAL OF THE
TRUST FUNDS.  SUCH COMMISSIONS WERE PAID FOR THE TRUSTEE'S CARE AND
MANAGEMENT OF THE TRUSTS, AND NOT FOR THE MERE ACT OF RECEIVING THE
PRINCIPAL.  THEY DIFFER IN NO RESPECT FROM THE COMMISSIONS PAID ON
INCOME, WHICH THE RESPONDENT CONCEDED ARE ALLOWABLE DEDUCTIONS.  AN
ITEM OTHERWISE DEDUCTIBLE IN COMPUTING NET INCOME TAXABLE TO A TRUST AS
AN ENTITY MAY NOT BE DISALLOWED JUST BECAUSE IT IS CHARGED AGAINST
PRINCIPAL INSTEAD OF INCOME OF THE TRUST. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE ULTIMATE QUESTION HERE INVOLVED IS WHETHER TWO TESTAMENTARY
TRUSTS OF WHICH PETITIONER IS TRUSTEE WERE IN 1931 "CARRYING ON  ...
BUSINESS" WITHIN THE MEANING OF SEC. 23(A) OF THE REVENUE ACT OF 1928. 

PURSUANT TO THE WILL OF ANGIER B. DUKE, TWO TRUSTS, CONSISTING OF
STOCKS AND BONDS WORTH APPROXIMATELY $7,600,000, WERE ESTABLISHED IN
1923 FOR THE BENEFIT OF DUKE'S TWO MINOR SONS.  PETITIONER, AS TRUSTEE,
WAS CHARGED WITH THE DUTY OF APPLYING A SUFFICIENT AMOUNT OF THE INCOME
OF EACH TRUST TO THE SUPPORT AND EDUCATION OF THE BENEFICIARY; THE
SURPLUS INCOME WAS TO BE ACCUMULATED UNTIL THE BENEFICIARY'S MAJORITY;
AND AT THAT TIME ALL ACCUMULATED INCOME WAS TO BE PAID TO THE
BENEFICIARY, WHILE THE PRINCIPAL WAS TO BE CONTINUED IN TRUST FOR THE
BENEFIT OF THE SON AND HIS DESCENDANTS.  BY 1931, THE PRINCIPAL AND
ACCUMULATED INCOME OF THE TWO TRUSTS AGGREGATED ABOUT $10,000,000.  IN
THAT YEAR THE SURROGATE COURT OF NEW YORK COUNTY ALLOWED TRUSTEES'
COMMISSIONS OF ABOUT $77,000, ORDERING THAT PAYMENT BE MADE OUT OF
PRINCIPAL.  IN REPORTING TRUST INCOME FOR 1931, THE TRUSTEE DID NOT
CLAIM ANY DEDUCTION FOR THESE COMMISSIONS.  LATER, IN PROCEEDINGS
BEFORE THE BOARD OF TAX APPEALS, THE DEDUCTION WAS CLAIMED BUT DENIED. 
THE GROUND OF DENIAL WAS THAT DURING THE TAXABLE YEAR THE TRUSTS HAD
NOT BEEN "CARRYING ON ANY TRADE OR BUSINESS," THE CARRYING ON OF SUCH
AN ACTIVITY BEING A CONDITION PRECEDENT TO THE ALLOWANCE OF THE CLAIMED
DEDUCTION UNDER THE CONTROLLING REVENUE ACT.  FN1  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  FN2  DIFFERING INTERPRETATIONS AS TO THE MEANING AND
SCOPE OF "CARRYING ON ANY TRADE OR BUSINESS" PROMPTED US TO GRANT
CERTIORARI IN THIS CASE, IN THE CASE OF PYNE V. UNITED STATES, 92 CT.
CLS. 44; 35 F.SUPP.  81; POST, P. 127, AND IN THE CASE OF HIGGINS V.
COMMISSIONER, 111 F.2D 795, 312 U.S. 212. 

IN THE HIGGINS CASE, 312 U.S. 212, WE AFFIRMED THE JUDGMENT OF THE
SAME CIRCUIT COURT OF APPEALS THAT RENDERED THE DECISION BELOW. 
HIGGINS, AN INDIVIDUAL TAXPAYER WHOSE ACTIVITIES DID NOT VARY
MATERIALLY FROM THE ACTIVITIES OF THE TAXPAYING TRUSTS IN THE CASE AT
BAR,  FN3  WAS DENIED THE DEDUCTION WHICH PETITIONER HERE SEEKS.  AND
SECS. 161-162 OF THE REVENUE ACT OF 1928 PROVIDE: "THE TAXES IMPOSED BY
THIS TITLE UPON INDIVIDUALS SHALL APPLY TO THE INCOME OF ESTATES OR OF
ANY KIND OF PROPERTY HELD IN TRUST.  ...  THE NET INCOME OF THE ESTATE
OR TRUST SHALL BE COMPUTED IN THE SAME MANNER AND ON THE SAME BASIS AS
IN THE CASE OF AN INDIVIDUAL.  ..."  SINCE THE TRUST IS SUBJECT TO THE
SAME RULES AS THE INDIVIDUAL, AND SINCE THE FINDINGS OF THE BOARD OF
TAX APPEALS IN THE HIGGINS CASE AND IN THE CASE AT BAR ARE
SUBSTANTIALLY THE SAME,  FN4  THE HIGGINS CASE IS CONTROLLING HERE,
UNLESS, AS PETITIONER CONTENDS, DISTINGUISHABLE BY REASON OF
ADMINISTRATIVE PRACTICE IN RELATION TO TRUSTS. 

BUT WE REGARD THE HIGGINS DECISION AS CONTROLLING DESPITE
PETITIONER'S INSISTENCE THAT ADMINISTRATIVE PRACTICE HAS LONG PERMITTED
DEDUCTION OF TRUSTEES' COMMISSIONS.  IN VIEW OF THE EXPRESS
CONGRESSIONAL COMMAND THAT THE SAME METHOD AND BASIS OF COMPUTATION
MUST BE APPLIED TO TRUST INCOME AS TO INDIVIDUAL INCOME, IT IS DOUBTFUL
WHETHER ANY ADMINISTRATIVE PRACTICE, NO MATTER HOW CLEAR OR LONG
EXISTING, WOULD WARRANT OUR APPLYING ONE CONCEPT OF CARRYING ON
BUSINESS IN THE CASE OF AN INDIVIDUAL AND ANOTHER CONCEPT IN THE CASE
OF A TRUST.  THIS IS PARTICULARLY TRUE HERE, WHERE THE STATUTORY
INTERPRETATION PETITIONER URGES HAS NEVER RECEIVED SUPPORT IN ANY
REGULATIONS PROMULGATED BY THE SECRETARY OF THE TREASURY.  FN5  AND NOT
ONLY IS THE RESULT REACHED BY THE COURT BELOW CONSISTENT WITH OUR
DECISION IN HIGGINS V. COMMISSIONER, BUT, AS WE SAID IN THE HIGGINS
CASE, THE CONCLUSION OF THE BOARD OF TAX APPEALS "IS ADEQUATELY
SUPPORTED BY THIS RECORD, AND RESTS UPON A CONCEPTION OF CARRYING ON
BUSINESS SIMILAR TO THAT EXPRESSED BY THIS COURT FOR AN ANTECEDENT

FN1  REVENUE ACT OF 1928, SECS. 23(A), 161, 162, 45 STAT. 799, 838. 
CF. GEORGE VANDERBILT TRUST, 36 B.T.A. 967.  THOUGH PETITIONER URGES
THAT THE COMMISSIONER, BECAUSE OF CONCESSIONS MADE BEFORE THE BOARD OF
TAX APPEALS, SHOULD BE BARRED FROM ASSERTING THAT THE TRUSTS WERE NOT
CARRYING ON BUSINESS, THE JUDGMENT OF THE BOARD RESTED ON ITS FINDING
THAT THE TRUSTS WERE NOT SO ENGAGED, AND THE ISSUE IS PROPERLY BEFORE
US. 

FN2  112 F.2D 457. 

FN3  THE BOARD FOUND IN THIS CASE THAT THE TRUSTEE'S ACTIVITIES WERE
LIMITED TO REVIEWING THE STOCKS AND BONDS IN TRUST SEVERAL TIMES A
YEAR; SELLING SECURITIES AND REINVESTING THE PROCEEDS IN OTHER STOCKS
AND BONDS; COLLECTING INTEREST AND DIVIDENDS ON SECURITY; KEEPING
ACCOUNT BOOKS FOR THE TRUSTS AND RENDERING STATEMENTS TO THE INTERESTED
PARTIES; PREPARING AND FILING INCOME TAX RETURNS; AND DISTRIBUTING
INCOME TO THE BENEFICIARIES.  SUMMARIZING, THE BOARD OF TAX APPEALS
SAID, "THE ABOVE FACTS DEMONSTRATE CONCLUSIVELY TO US THAT THIS IS A
CASE OF PASSIVE INVESTMENT AND NOT OF CARRYING ON A BUSINESS, FOR NOT
ONLY IS THE TRUSTEE LIMITED IN ITS INVESTMENTS, BUT IT IS CAUTIONED IN
EFFECT TO BE A SAFE INVESTOR RATHER THAN A PARTICIPANT IN TRADE OR
BUSINESS, AND, PLAINLY CARRYING OUT THE TESTATOR'S INJUNCTIONS, IT
CONDUCTS NO BUSINESS, BECAUSE IT HAS, AS ABOVE SEEN, NO EXPENSES OF
CONDUCTING BUSINESS OTHER THAN THE COLLECTION OF COUPONS AND MAILING
BONDS, AMOUNTING TO A FEW DOLLARS, AND AN EVEN MORE NEGLIGIBLE AMOUNT
FOR TRANSFER STAMPS OR NOTARY FEES.  ...  EXTENSIVE AUTHORITY NEED NOT
BE COMPILED TO DEMONSTRATE THAT A MERE PASSIVE INVESTOR, COLLECTING
INTEREST AND CLIPPING COUPONS, AND MAKING A VERY FEW REINVESTMENTS, IS
NOT ENGAGED IN TRADE OR BUSINESS." 

FN4  IT IS CLEAR THAT THE BOARD WAS JUSTIFIED IN REACHING THE
CONCLUSION THAT THE INSTANT TRUSTS WERE NOT "BUSINESS TRUSTS" BUT
EXISTED MERELY TO HOLD AND CONSERVE PROPERTY AND DISTRIBUTE THE INCOME
RECEIVED.  COMPARE MORRISEY V. COMMISSIONER, 296 U.S. 344, 356-357; VON
BAUMBACH V. SARGENT LAND CO., 242 U.S. 503, 515; ZONNE V. MINNEAPOLIS
SYNDICATE, 220 U.S. 187. 

FN5  BIDDLE V. COMMISSIONER, 302 U.S. 573, 582; HELVERING V. NEW YORK
TRUST CO., 292 U.S. 455, 467-468. 

FN6  THE CASE REFERRED TO WAS VAN WART V. COMMISSIONER, 295 U.S. 112,
115. 
..END :








UNITED STATES V. PYNE, 313 U.S. 127 


NO. 683.  ARGUED APRIL 2, 1941.  - DECIDED APRIL 28, 1941.  - 92 CT.
CLS. 44 - 35 F.SUPP.  81, REVERSED. 


1.  EXECUTORS IN CARING FOR SECURITIES AND INVESTMENTS IN ORDER TO
CONSERVE AND PROTECT THE ESTATE PENDING FINAL DISTRIBUTION, ARE NOT
CARRYING ON BUSINESS WITHIN THE MEANING OF SECS. 23(A), 161, AND 162 OF
THE REVENUE ACT OF 1934, WHATEVER THE SIZE OF THE ESTATE OR THE NUMBER
OF THOSE WHOSE SERVICES ARE REQUIRED IN ITS CONSERVATION; AND FEES PAID
TO AN ATTORNEY FOR ADVICE ON LEGAL AND ECONOMIC QUESTIONS ARISING IN
THE COURSE OF ADMINISTRATION OF THE ESTATE ARE NOT DEDUCTIBLE IN
COMPUTING THEIR INCOME TAX UNDER THAT ACT.  PP. 129, 132. 

THEREFORE, A FINDING OF THE COURT OF CLAIMS THAT THE EXECUTORS
CONTINUED TO CONSERVE THE DECEDENT'S ESTATE AS HE HAD WHEN HE WAS
HIMSELF "A FINANCIER AND INVESTOR" FALLS SHORT OF A FINDING THAT THEY
WERE ENTITLED TO A DEDUCTION ACCORDED BY CONGRESS ONLY TO THOSE
"CARRYING ON ...  BUSINESS." 

2.  THIS COURT WILL NOT WEIGH THE FACTS SET OUT IN SUBSIDIARY
FINDINGS OF THE COURT OF CLAIMS TO SUPPLY AN ULTIMATE AND DETERMINATIVE
FINDING WHICH THAT COURT FAILED TO MAKE BUT WHICH IS NECESSARY TO
SUPPORT THE JUDGMENT.  P. 130. 

UNITED STATES V. PYNE ET AL., EXECUTORS. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 312 U.S. 672, TO REVIEW A JUDGMENT ALLOWING A CLAIM FOR A
REFUND OF MONEY EXACTED, AND PAID UNDER PROTEST, AS AN INCOME TAX. 

THE COMMISSIONER WOULD NOT HAVE ALLOWED THE DEDUCTION OF OTHER
EXPENSES, CONSISTING OF OFFICE RENT, MANAGEMENT, AND SALARIES OF
EMPLOYEES, HAD HE NOT RECOGNIZED THE FACT THAT THE TAXPAYER WAS ENGAGED
IN CARRYING ON A BUSINESS. 

THE DETERMINATION OF WHETHER THE ACTIVITIES OF A TAXPAYER ARE
"CARRYING ON A BUSINESS" REQUIRES AN EXAMINATION OF THE FACTS IN EACH
CASE.  HIGGINS V. COMMISSIONER, 312 U.S. 212. 

THE FINDINGS CLEARLY REFLECT THE EVIDENCE SHOWING THAT THE TAXPAYER
CONTINUED THE BUSINESS IN WHICH THE DECEDENT WAS ENGAGED AT THE TIME OF
HIS DEATH AND ITSELF WAS ENGAGED IN BUSINESS WHILE ALSO ADMINISTERING
THE ESTATE.  UPON THIS SHOWING, THE COURT APPORTIONED THE ATTORNEY'S
FEES BETWEEN BUSINESS EXPENSE AND ADMINISTRATION EXPENSE. 

THE PETITIONER IS ASKING THIS COURT TO REVERSE THE FACTUAL
DETERMINATION OF THE COURT OF CLAIMS, WITHOUT HAVING ANY OF THE
EVIDENCE BEFORE IT. 

THE FACTS FOUND BY THE LOWER COURT RECEIVED THEIR PROPER APPLICATION
TO THE STATUTORY PROVISIONS OF THE REVENUE ACT AUTHORIZING THE
DEDUCTION OF BUSINESS EXPENSES BY A TAXPAYER CARRYING ON BUSINESS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER UPON THIS RECORD THE COURT OF
CLAIMS  FN1  COMMITTED ERROR IN CONCLUDING THAT RESPONDENTS, AS
EXECUTORS, WERE, IN COMPUTING THEIR FEDERAL INCOME TAX, ENTITLED TO
DEDUCT EXPENSES PROPERLY INCURRED IN THE ADMINISTRATION OF AN ESTATE,
CONGRESS HAVING PROVIDED THAT SUCH A DEDUCTION COULD BE TAKEN ONLY BY
INDIVIDUALS, ESTATES, OR TRUSTS ENGAGED IN "CARRYING ON  ...
BUSINESS."  REVENUE ACT OF 1934, SECS. 23(A), 161, 162, 48 STAT. 688,
727.  COMPARE CITY BANK FARMERS TRUST CO. V. HELVERING, ANTE, P. 121. 

IN COMPUTING THE 1934 NET INCOME OF THE ESTATE, RESPONDENTS CLAIMED A
DEDUCTION OF $40,000 FOR FEES PAID TO THE ESTATE'S ATTORNEY DURING THE
TAXABLE YEAR.  THE COMMISSIONER OF INTERNAL REVENUE DISALLOWED THE
DEDUCTION; THE RESPONDENTS PAID UNDER PROTEST, AND FILED SUIT FOR
REFUND IN THE COURT OF CLAIMS.  THEIR COMPLAINT ALLEGED THAT "THE
PAYMENT OF ATTORNEY'S FEES AND THE CLAIM FOR ALLOWANCE THEREOF AS A
DEDUCTION FROM GROSS INCOME IS PREDICATED UPON THE CONTENTION THAT THE
TREMENDOUS SIZE OF THE CORPUS OF THE ESTATE AND THE PROPER
ADMINISTRATION THEREOF CONSTITUTED THE OPERATION OF A BUSINESS AND THE
EMPLOYMENT OF AN ATTORNEY AS COUNSEL TO GUIDE THE EXECUTORS IN THE
HANDLING OF THE AFFAIRS OF THE ESTATE WAS JUST AS MUCH A NECESSARY
EXPENSE OF THE ESTATE AS IS INCURRED IN THE OPERATION OF ANY COMMERCIAL
BUSINESS ENGAGED IN THE MANUFACTURING OR SELLING OF COMMODITIES."  THE
COURT MADE DETAILED FINDINGS OF FACT, AND AS ITS SINGLE CONCLUSION OF
LAW STATED THAT THE RESPONDENTS SHOULD RECOVER. 

WE RECENTLY STATED IN HIGGINS V. COMMISSIONER, 312 U.S. 212, THAT
DETERMINATION OF WHAT AMOUNTS TO CARRYING ON BUSINESS REQUIRES
EXAMINATION OF THE FACTS IN EACH CASE.  IN THIS CASE, THE RECORD BEFORE
US CONTAINS THE FINDINGS OF THE COURT OF CLAIMS, A CONCLUSION OF LAW,
AND AN OPINION SUMMARIZING THE FINDINGS OF FACT AND INDICATING THE
REASONS WHICH PROMPTED THE COURT TO REACH ITS CONCLUSION OF LAW.  THE
MOST THAT CAN BE SAID OF THE FINDINGS OF FACT IS THAT THE COURT WAS OF
THE OPINION THAT THE FACTS FOUND SHOWED THAT THE ACTIVITIES OF THE
EXECUTORS WERE SUCH AS TO MEET CERTAIN CRITERIA SET OUT IN THE OPINION
AS DETERMINATIVE OF WHAT CONSTITUTED CARRYING ON BUSINESS.  FOR WHAT
THE COURT FOUND AS A FACT WAS THAT THE DECEDENT, PRIOR TO HIS DEATH
"WAS ENGAGED IN BUSINESS AS A FINANCIER AND INVESTOR, MAINTAINING AN
OFFICE WHERE HE EMPLOYED AN OFFICE MANAGER AND AN AVERAGE OF SIX
CLERKS.  ...  IN GENERAL, THE OPERATIONS OF THE ESTATE CONTINUED IN
SUBSTANTIALLY THE SAME MANNER AFTER THE DECEDENT'S DEATH AS BEFORE. 
..."  IN ADDITION THE COURT FOUND THAT THE ATTORNEY EMPLOYED BY THE
EXECUTORS "WAS CALLED UPON TO ADVISE THEM WITH REFERENCE TO MATTERS
BOTH LEGAL AND ECONOMIC THAT AROSE IN THE BUSINESS ACTIVITIES OF THE
ESTATE, WITH REFERENCE TO FEDERAL ESTATE AND STATE INHERITANCE TAXES,
AND ALSO IN REGARD TO THE ACQUISITION AND DISPOSAL OF THE ESTATE'S
SECURITIES AND IN REGARD TO VARIOUS MATTERS PERTAINING TO COMPANIES IN
WHICH THE ESTATE HELD INVESTMENTS."  BUT THE EXECUTORS MIGHT DO ALL THE
THINGS THAT THE COURT FOUND THAT THEY DID AND STILL NOT BE ENGAGED IN
"CARRYING ON  ...  BUSINESS" WITHIN THE MEANING OF THE REVENUE ACT. 
FOR AS WE SAID IN THE HIGGINS CASE, "ALL EXPENSES OF EVERY BUSINESS
TRANSACTION ARE NOT DEDUCTIBLE.  ONLY THOSE ARE DEDUCTIBLE WHICH RELATE
TO CARRYING ON A BUSINESS."  ALSO, WE THERE SUSTAINED A HOLDING THAT AN
INDIVIDUAL WHO WAS ENGAGED IN FINANCIAL AND INVESTING ACTIVITIES IN ALL
WAYS SIMILAR TO THOSE OF THE DECEDENT AND HIS EXECUTORS IN THIS CASE
WAS NOT ENTITLED TO A DEDUCTION SUCH AS THAT SOUGHT BY RESPONDENTS. 
THEREFORE, THE FINDING OF THE COURT OF CLAIMS THAT THE EXECUTORS
CONTINUED TO CONSERVE THE DECEDENT'S ESTATE AS HE HAD WHEN HE WAS
HIMSELF "A FINANCIER AND INVESTOR" FALLS FAR SHORT OF A FINDING THAT
THE EXECUTORS WERE ENTITLED TO A DEDUCTION ACCORDED BY CONGRESS ONLY TO
THOSE "CARRYING ON  ...  BUSINESS."  FAILURE OF THE COURT OF CLAIMS TO
MAKE A SPECIFIC FINDING ON THIS ULTIMATE AND DETERMINATIVE ISSUE
DEPRIVES THAT COURT'S JUDGMENT OF SUPPORT.  UNDER SUCH CIRCUMSTANCES WE
ARE NOT CALLED UPON TO WEIGH THE DIFFERENT FACTS SET OUT IN THE
SUBSIDIARY FINDINGS IN ORDER TO DETERMINE WHETHER OR NOT THEY WOULD
SUPPORT A CONCLUSION THAT THE EXECUTORS WERE "CARRYING ON  ...
BUSINESS" WITHIN THE MEANING OF THE STATUTE.  FN2 

WHEN WE TURN TO THE OPINION OF THE COURT OF CLAIMS,  FN3  IT IS MADE
CLEAR THAT ABSENCE OF SUCH A SPECIFIC FINDING WAS THE RESULT OF THE
COURT'S ADOPTION OF CRITERIA OF "CARRYING ON  ... BUSINESS"
INCONSISTENT WITH OUR HOLDING IN THE HIGGINS CASE.  SINCE THE JUDGMENT
MUST BE VACATED BECAUSE NOT SUPPORTED BY ADEQUATE FINDINGS, IT IS
APPROPRIATE THAT WE POINT OUT THIS INCONSISTENCY.  ACCEPTING AS TRUE
THE STATEMENT OF THE COURT OF CLAIMS THAT A BROAD DEFINITION OF
"BUSINESS" MIGHT BE THAT IT IS "WHATEVER ENGAGES THE TIME, ATTENTION,
AND LABOR OF MEN IN ORDER TO CONSERVE WHAT THEY HAVE OR TO AVOID LOSS"
IT DOES NOT FOLLOW AT ALL THAT THIS IS SYNONYMOUS WITH THE STATUTORY
LANGUAGE, "CARRYING ON  ...  BUSINESS."  THIS DEFINITION OF "BUSINESS"
STEMS IN PART FROM THE CASE OF FLINT V. STONE TRACY CO., 220 U.S. 107,
171, UPON WHICH THE COURT OF CLAIMS RELIED.  BUT HOWEVER APPLICABLE
THAT DEFINITION MAY HAVE BEEN TO THE CASE THERE UNDER CONSIDERATION, IT
CANNOT BE ACCEPTED AS A GUIDE IN THE PRESENT CASE.  THE REASONS WHY IT
IS NOT APPLICABLE TO THE STATUTORY PROVISION NOW UNDER CONSIDERATION
WERE GIVEN IN OUR OPINION IN THE HIGGINS CASE; ITS NON-APPLICABILITY TO
SPECIFIC SITUATIONS HAS ALSO BEEN EXPLAINED IN A NUMBER OF OTHER
OPINIONS OF THIS COURT.  FN4 

NOR CAN THE JUDGMENT OF THE COURT OF CLAIMS BE SUPPORTED BY THAT
COURT'S STATEMENT THAT THE EXECUTORS WERE ENGAGED "IN THE BUSINESS OF
CONSERVING THE ESTATE AND PROTECTING ITS INCOME."  SUCH ACTIVITIES ARE
THE TRADITIONAL DUTY OF EXECUTORS.  EXECUTORS WHO ENGAGE ACTIVELY IN
TRADE AND BUSINESS ARE THE EXCEPTION AND NOT THE RULE.  RATHER
OBVIOUSLY, THERE COULD BE CLEAR CASES WHERE EXECUTORS "CARRY ON  ...
BUSINESS" BY CONTINUING TO OPERATE A STORE, A FACTORY OR SOME OTHER
WELL KNOWN, WELL MARKED TYPE OF BUSINESS ACTIVITY.  BUT IN THE ABSENCE
OF EVIDENCE SHOWING ACTIVITIES COMING WITHIN THE GENERAL ACCEPTATION OF
THE CONCEPT OF CARRYING ON A TRADE OR BUSINESS, IT CANNOT BE SAID AS A
MATTER OF LAW THAT AN EXECUTOR COMES INTO THIS CATEGORY MERELY BECAUSE
HE CONSERVES THE ESTATE BY MARSHALLING AND GATHERING THE ASSETS AS A
MERE CONDUIT FOR ULTIMATE DISTRIBUTION.  AND DETERMINATION OF WHAT
CONSTITUTES "CARRYING ON  ...  BUSINESS" UNDER THE REVENUE ACT DOES NOT
DEPEND UPON THE SIZE OF THE ESTATE OR THE NUMBER OF PEOPLE WHOSE
SERVICES ARE REQUIRED IN ORDER PROPERLY TO CONSERVE IT. 

THE JUDGMENT OF THE COURT OR CLAIMS IS VACATED AND THE CAUSE IS
REMANDED TO THAT COURT FOR PROCEEDINGS IN ACCORDANCE WITH THE VIEWS
HEREIN EXPRESSED.  JUDGMENT VACATED. 

FN1  92 CT. CLS. 44; 35 F.SUPP.  81. 

FN2  UNITED STATES V. ESNAULT-PELTERIE, 299 U.S. 201, 206. 

FN3  CF. CHIPPEWA INDIANS V. UNITED STATES, 305 U.S. 479, 481;
AMERICAN PROPELLER & MFG. CO. V. UNITED STATES, 300 U.S. 475, 479-480. 

FN4  SEE, E.G., VON BAUMBACH V. SARGENT LAND CO., 242 U.S. 503, 514
515; MCCOACH V. MINEHILL & SCHUYLKILL HAVEN R. CO., 228 U.S. 295, 303;
ZONNE V. MINNEAPOLIS SYNDICATE, 220 U.S. 187, 190. 
..END :








ARKANSAS COMM'N V. THOMPSON, 313 U.S. 132 


NO. 715.  ARGUED APRIL 4, 1941.  - DECIDED APRIL 28, 1941.  - 116 F.2D
179, REVERSED. 


1.  ASSUMED, WITHOUT DECIDING, THAT SEC. 64(A) OF THE BANKRUPTCY ACT
IS APPLICABLE IN RAILROAD REORGANIZATION PROCEEDINGS UNDER SEC. 77.  P.
138. 

2.  SECTION 64(A)(4) OF THE BANKRUPTCY ACT GIVING PRIORITY TO "TAXES
LEGALLY DUE AND OWING BY THE BANKRUPT TO  ...  ANY STATE," AND
PROVIDING "THAT, IN CASE ANY QUESTION ARISES AS TO THE AMOUNT OR
LEGALITY OF ANY TAXES, SUCH QUESTION SHALL BE HEARD AND DETERMINED BY
THE (BANKRUPTCY) COURT," DOES NOT EMPOWER THAT COURT TO REVISE THE
VALUATION OF A RAILROAD WHICH HAS BEEN FINALLY FIXED, PURSUANT TO THE
STATE LAW, AS THE BASIS FOR A STATE TAX.  P. 142. 

SO HELD WHERE THE VALUATION WAS BY A STATE COMMISSION HAVING BROAD
AUTHORITY IN THE REGULATION OF RAILROADS AND OTHER PUBLIC UTILITIES AND
OVER VALUATIONS FOR TAX PURPOSES, IN QUASI-JUDICIAL PROCEEDINGS IN
WHICH THE REORGANIZATION TRUSTEE HAD BEEN FULLY HEARD AND FROM THE
RESULT OF WHICH HE TOOK NO APPEAL TO THE STATE COURTS, AS PERMITTED BY
STATE LAW.  NEW JERSEY V. ANDERSON, 203 U.S. 483, DISTINGUISHED. 

ARKANSAS CORPORATION COMMISSION ET AL. V. THOMPSON, TRUSTEE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 312 U.S. 673, TO REVIEW THE AFFIRMANCE OF AN ORDER IN A
RAILROAD REORGANIZATION PROCEEDING WHICH OVERRULED A MOTION BY THE
PRESENT PETITIONERS FOR THE DISMISSAL OF A PETITION FILED BY THOMPSON,
TRUSTEE.  HIS PETITION ALLEGED THAT CERTAIN STATE TAXES LAID ON THE
RAILROAD WERE EXCESSIVE AND UNLAWFUL AND SOUGHT TO HAVE THEIR VALIDITY
DETERMINED BY THE BANKRUPTCY COURT. 

THE BANKRUPTCY COURT EXCEEDED ITS POWER.  PALMER V. MASSACHUSETTS,
308 U.S. 79; CONTINENTAL NATIONAL BANK V. CHICAGO, R.I. & P. RY. CO.,
294 U.S. 648; ISAACS V. HOBBS TIE & TIMBER CO., 282 U.S. 734; THOMPSON
V. TERMINAL SHARES, 104 F.2D 1; MCLAUGHLIN V. ST. LOUIS & S.W. RY., 232
F. 579; MISSOURI PACIFIC R. CO. V. CONWAY & VILONIA ROAD DIST., 280 F.
401; MASSACHUSETTS V. PALMER, 101 F.2D 48.  SEE, ALSO, SECS. 77 AND
77(B) OF THE BANKRUPTCY ACT; THE JOHNSON ACT OF 1934, 28 U.S.C. SEC.
41; TAX ACT OF 1937, 28 U.S.C. SEC. 41. 

OF SEC. 77.  FINLETTER ON BANKRUPTCY REORGANIZATION, P. 344; SEC. 77,
BANKRUPTCY ACT, 11 U.S.C. 205; IN RE BRANNON, 62 F.2D 959; THOMPSON V.
LOUISIANA, 98 F.2D 108. 

V. M.W. SAVAGE FACTORIES, 83 F.2D 453; BOTELER V. INGELS, 308 U.S. 57;
THOMPSON V. LOUISIANA, 98 F.2D 108; HAGGERTY V. MICHIGAN, 286 U.S. 334;
ROBERTSON V. GOREE, 29 F.2D 595; MACGREGOR V. JOHNSON-COWDIN-EMMERICH,
INC., 39 F.2D 574; 11 U.S.C. SEC. 104; ACT OF JUNE 18, 1934, 48 STAT.
993. 

THE ORDER OF APRIL 11, 1940, WAS AN INJUNCTION.  JOHNSON ACT OF 1934,
41 STAT. 774; 28 U.S.C. SEC. 41; GRIESA V. MUTUAL LIFE INS. CO., 165 F.
48; WESTERN UNION TELEGRAPH CO. V. UNITED STATES & MEXICAN TRUST CO.,
221 F. 545; ENELOW V. NEW YORK LIFE INS. CO., 293 U.S. 379; JUD.  CODE
SEC. 24; 28 U.S.C. SEC. 41. 

THE TRUSTEE HAD AN ADEQUATE REMEDY UNDER ARKANSAS LAW FOR ANY
UNCONSTITUTIONAL OR ARBITRARY INVASION OF RIGHTS.  MARTINEAU V. CLEAR
CREEK OIL & GAS CO., 141 ARK. 596; POPE'S DIGEST, SEC. 1936; CLEAR
CREEK OIL & GAS CO. V. FT. SMITH CO., 161 ARK. 12; FORT SMITH CO. V.
CLEAR CREEK OIL & CO., 267 U.S. 231; ATLAS LIFE INS. CO. V. SOUTHERN,
306 U.S. 561; TERRY V. NEW YORK, 104 F.2D 498; EAST OHIO CO. V.
CLEVELAND, 84 F.2D 443; MCLAUGHLIN V. ST. LOUIS & S.W. RY CO., 232 F.
579; MISSOURI PACIFIC RY. CO. V. CONWAY & VILONIA ROAD DIST., 280 F.
401. 

THE TRUSTEE'S PETITION DOES NOT PRESENT A JUSTICIABLE ISSUE FOR REVIEW
IN A STATE OR FEDERAL COURT.  THE PETITION PRESENTS ONLY A QUESTION OF
THE RELATION OF RECOGNIZED EVIDENTIARY FACTORS, AND THESE ARE
EXCLUSIVELY QUESTIONS FOR THE STATE BOARD.  SEE PUBLIC AIDS TO
TRANSPORTATION, COORDINATOR'S SECTION OF RESEARCH, VOL. 2, P. 200;
RAILROAD COMMISSION V. ROWAN & NICHOLS OIL CO., 310 U.S. 573; FEDERAL
COMMUNICATIONS COMM'N V. POTTSVILLE BROADCASTING CO., 309 U.S. 134;
NASHVILLE, C. & ST. L. RY. V. BROWNING, 310 U.S. 362; ROWLEY V. CHICAGO
& N.W.R. CO., 293 U.S. 102; CENTRAL RAILWAY V. MARTIN, 115 F.2D 968;
THE JOHNSON ACT OF 1934, 28 U.S.C. SEC. 41. 

THE POWERS OF THE BANKRUPTCY COURT WERE NOT EXCEEDED.  IN RE WOOD &
HENDERSON, 210 U.S. 246; U.S. FIDELITY & GUARANTY CO. V. BRAY, 225 U.S.
205; VAN HUFFEL V. HARKELRODE, 294 U.S. 225; NEW YORK V. IRVING TRUST
CO., 288 U.S. 329; NEW JERSEY V. ANDERSON, 203 U.S. 483; KALB V.
FEUERSTEIN, 308 U.S. 433. 

THE PROVISION OF SEC. 64 OF THE BANKRUPTCY ACT "THAT IN CASE ANY
QUESTION ARISES AS TO THE AMOUNT OR LEGALITY OF ANY TAXES, SUCH
QUESTION SHALL BE HEARD AND DETERMINED BY THE COURT" IS NOT
INCONSISTENT WITH SEC. 77, AND IS OF GOVERNING FORCE IN PROCEEDINGS
UNDER SEC. 77.  MICHIGAN V. MICHIGAN TRUST CO., 296 U.S. 334; IN RE
DENVER & RIO GRANDE WESTERN R. CO., 23 F.SUPP.  298; ST. FRANCIS LEVEE
DIST. V. KURN, 91 F.2D 118; ST. FRANCIS LEVEE DISTRICT V. KURN, 98 F.2D
394. 

THE JURISDICTION TO HEAR AND DETERMINE ANY QUESTION AS TO TAXES,
UNDER THE PROVISIONS OF SEC. 64(A) OF THE ACT, EXTENDS TO TAXES
ACCRUING DURING THE TRUSTEE'S POSSESSION OF THE PROPERTY.  HENDERSON
COUNTY V. WILKINS, 43 F.2D 670; DICKINSON V. RILEY, 96 F.2D 385; IN RE
DENVER & RIO GRANDE WESTERN R. CO., 23 F.SUPP.  298; ST. FRANCIS LEVEE
DIST. V. KURN, 91 F.2D 118; ST. FRANCIS LEVEE DIST. V. KURN, 98 F.2D
394. 

THE ORDER OF APRIL 11, 1940, WAS NOT AN INJUNCTION AND WAS NOT IN
VIOLATION OF JUD.  CODE SEC. 24.  EX PARTE BALDWIN, 291 U.S. 610;
HENDERSON COUNTY V. WILKINS, 43 F.2D 670; ST. FRANCIS LEVEE DIST. V.
KURN, 91 F.2D 118; ST. FRANCIS LEVEE DIST. V. KURN, 98 F.2D 394. 

EVEN THOUGH THE ARKANSAS STATUTES MAY PROVIDE FOR A JUDICIAL REVIEW
IN THE STATE'S COURTS OF THE ASSESSMENTS MADE BY THE CORPORATION
COMMISSION, THIS DOES NOT DEPRIVE THE BANKRUPTCY COURT OF JURISDICTION
TO HEAR AND DETERMINE THE AMOUNT OR LEGALITY OF ANY TAX INVOLVED.  U.S.
FIDELITY & GUARANTY CO. V. BRAY, 225 U.S. 205; KALB V. FEUERSTEIN, 308
U.S. 433. 

THE ISSUE PRESENTED BY THE TRUSTEE'S PETITION IS CLEARLY
JUSTICIABLE.  SEE CONSTITUTION OF ARKANSAS, ART. XVI, SEC. 5; ARK.
STATS. SECS. 2044, 2048; DAWSON V. KENTUCKY DISTILLERIES, 255 U.S. 288;
NEW JERSEY V. ANDERSON, 203 U.S. 483; IN RE SCHAEFER CO., 103 F.2D 237;
GREAT NORTHERN RY. CO. V. WEEKS, 297 U.S. 135; CHICAGO & N.W. RY. V.
EVELAND, 13 F.2D 442; BAILEY V. MEGAN, 102 F.2D 651; STANDARD OIL CO.
V. SOUTHERN PACIFIC CO., 268 U.S. 146; ATLANTA, B. & C.R. CO. V. UNITED
STATES, 296 U.S. 33; KANSAS CITY SOUTHERN RY. CO. V. ROAD IMPROVEMENT
DIST., 256 U.S. 658; ROAD IMPROVEMENT DIST. V. MISSOURI PACIFIC R. CO.,
274 U.S. 188. 

THE VALIDITY AND AMOUNT OF TAX CLAIMS MUST BE DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE TAXING SOVEREIGNTY. 

THE ARKANSAS CORPORATION COMMISSION IS A QUASIJUDICIAL TRIBUNAL.  ITS
DECISIONS CAN NOT BE OVERTURNED BY THE COURTS FOR MERE MISTAKES OF FACT
OR ERRORS OF JUDGMENT. 

THE TRUSTEE DID NOT EXHAUST THE ADMINISTRATIVE REMEDY PROVIDED BY THE
ARKANSAS STATUTE.  THE PRINCIPLE THAT THE ADMINISTRATIVE REMEDY FOR
RELIEF AGAINST AN ALLEGED ILLEGAL TAX MUST BE EXHAUSTED BEFORE RESORT
MAY BE HAD TO THE COURTS FOR THAT PURPOSE, IS APPLICABLE TO TRUSTEES IN
BANKRUPTCY.  IN RE GUSTAV SCHAEFER CO., 103 F.2D 237; CITY OF
SPRINGFIELD V. HOTEL CHARLES, 84 F.2D 589; IN RE PERLMUTTER, 256 F.
861; IN RE 168 ADAMS BUILDING CORP., 105 F.2D 704; IN RE A.V. MANNING'S
SONS, 16 F.SUPP.  632; IN RE SCHACH, 17 F.SUPP.  437. 

THE BANKRUPTCY COURT HAS NO POWER, UNDER SEC. 77, TO REASSESS THE
TAXES DUE BY THE TRUSTEE.  SECTION 77 AUTHORIZES THE FORMULATION OF A
RAILROAD REORGANIZATION PLAN, SUBJECT TO THE APPROVAL OF THE INTERSTATE
COMMERCE COMMISSION AND OF THE COURT, THAT WILL BE FAIR AND JUST TO THE
CREDITORS AND STOCKHOLDERS, AND WHICH WILL GUARANTEE THE CONTINUED
OPERATION OF THE RAILROAD.  THE WORD "TAXES" DOES NOT APPEAR IN SEC.
77, AND THERE IS NOTHING IN THE SECTION INDICATING AN INTENTION TO
CONFER ON BANKRUPTCY COURTS THE EXTRAORDINARY POWER TO ASSESS OR RE
ASSESS TAXES. 

IF A TAX IS VALID WHEN MEASURED BY THE LAWS OF THE TAXING SOVEREIGN
THE BANKRUPTCY COURT SHOULD ALLOW IT.  IF A TAX IS INVALID WHEN
MEASURED BY THOSE LAWS, IT IS THE DUTY OF THE BANKRUPTCY COURT TO
DISALLOW IT.  THE ALLOWANCE OR DISALLOWANCE OF A TAX CLAIM EXHAUSTS THE
ENTIRE JUDICIAL POWER OF THE COURT. 

THE ASSESSMENT OF TAXES IS REFERABLE TO THE LEGISLATIVE POWER, AND IT
IS NO PART OF THE JUDICIAL FUNCTION.  CENTRAL KENTUCKY NATURAL GAS CO.
V. RAILROAD COMMISSION, 290 U.S. 264.  SEE ALSO:  WEST OHIO GAS CO. V.
PUBLIC UTILITIES COMMISSION, 294 U.S. 63; ROWLEY V. CHICAGO & N.W. RY.
CO., 293 U.S. 102; GREAT NORTHERN RY. CO. V. WEEKS, 297 U.S. 136;
REAGAN V. FARMERS LOAN & TRUST CO., 154 U.S. 362; WEST V. CHESAPEAKE &
POTOMAC TEL. CO., 295 U.S. 662; CENTRAL R. CO. V. MARTIN, 115 F.2D
968. 

THIS PRINCIPLE HAS BEEN HELD TO BE APPLICABLE TO TAX CLAIMS FILED IN
BANKRUPTCY PROCEEDINGS.  CITY OF DETROIT V. DETROIT & CANADA TUNNEL
CO., 92 F.2D 833; CROSS V. GEORGIA IRON & COAL CO., 250 F. 438; IN RE
GOULD MANUFACTURING CO., 11 F.SUPP.  644; IN RE SCHACH, 17 F.SUPP. 
437; IN RE 168 ADAMS BUILDING CORP., 27 F.SUPP.  247. 

THE TRUSTEE'S PETITION IS A COLLATERAL ATTACK ON THE ASSESSMENT MADE
BY THE COMMISSION.  THE ASSESSMENT IS PRIMA FACIE VALID AND IT MUST BE
JUDGED ON THE RECORD BEFORE THE COMMISSION.  THE JUDICIAL FUNCTION IS
EXHAUSTED WHEN THERE IS FOUND TO BE A RATIONAL BASIS FOR THE
CONCLUSIONS APPROVED BY THE ADMINISTRATIVE BODY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES QUESTIONS CONCERNING THE RIGHT AND POWER OF A
FEDERAL BANKRUPTCY COURT TO REVISE AND REDETERMINE FOR STATE TAX
PURPOSES THE PROPERTY VALUE OF A RAILROAD (MISSOURI PACIFIC) IN
REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY ACT, THE STATE
(ARKANSAS) HAVING ALREADY DETERMINED SUCH VALUE THROUGH ITS OWN TAXING
OFFICIALS AND IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED BY VALID
STATE LEGISLATION. 

OVER THE OBJECTIONS OF ARKANSAS OFFICIALS, THE DISTRICT COURT SITTING
IN BANKRUPTCY HELD THAT IT DID HAVE SUCH POWER.  33 F.SUPP.  728.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  116 F.2D 179.  IN SO HOLDING, BOTH
COURTS RELIED ON SEC. 64(A) OF THE GENERAL BANKRUPTCY ACT, 11 U.S.C.
SEC. 104(A)(SUPP.  1939), AS THE SOURCE OF THIS POWER.  THAT SECTION,
SO FAR AS PERTINENT HERE, PROVIDES "THE DEBTS TO HAVE PRIORITY, IN
ADVANCE OF THE PAYMENT OF DIVIDENDS TO CREDITORS, AND TO BE PAID IN
FULL OUT OF BANKRUPT ESTATES  ...  SHALL BE  ...  (4) TAXES LEGALLY DUE
AND OWING BY THE BANKRUPT TO THE UNITED STATES OR ANY STATE  ...  :
PROVIDED,  ...  THAT, IN CASE ANY QUESTION ARISES AS TO THE AMOUNT OR
LEGALITY OF ANY TAXES, SUCH QUESTION SHALL BE HEARD AND DETERMINED BY
THE (BANKRUPTCY) COURT  ...  " 

PETITIONERS CONTEND THAT SEC. 64(A) IS IN ITS ENTIRETY INCONSISTENT
FN1  WITH THE AIMS AND PURPOSES OF SEC. 77, 11 U.S.C. SEC. 205(SUPP. 
1939), AND THAT IT THEREFORE HAS NO APPLICATION HERE.  THAT QUESTION WE
NEED NOT DECIDE.  FOR WE ARE OF OPINION THAT THE CONGRESSIONAL LANGUAGE
GIVING TO THE BANKRUPTCY COURT POWER TO DETERMINE THE "AMOUNT OR
LEGALITY" OF TAXES DOES NOT MEAN THAT THE COURT IS GIVEN POWER TO
REDETERMINE AND REVISE THE PROPERTY VALUE FINALLY FIXED BY A STATE
UNDER THE CIRCUMSTANCES REVEALED BY THE TRUSTEE'S PETITION, EVEN THOUGH
THAT VALUE IS THE BASIS USED IN COMPUTING THE AMOUNT OF TAXES "LEGALLY
DUE AND OWING." 

AN EXPLANATION OF THE POWER, FUNCTIONS, AND ACTION OF THE ARKANSAS
CORPORATION COMMISSION IS ESSENTIAL TO A CLEAR UNDERSTANDING OF THIS
CASE.  THAT COMMISSION IS A STATE AGENCY CREATED PURSUANT TO STATE
CONSTITUTIONAL REQUIREMENTS.  FN2  IT IS VESTED WITH BROAD AUTHORITY IN
THE REGULATION OF RAILROADS, CANALS, TURNPIKES, PUBLIC UTILITIES, MOTOR
VEHICLES, SLEEPING CARS, TELEPHONE AND TELEGRAPH COMPANIES, AND
COMPANIES TRANSMITTING AND DISTRIBUTING GAS, OIL AND ELECTRICITY.  FN3
ALSO, IN THE ADMINISTRATION OF THE STATE TAX LAWS THE CORPORATION
COMMISSION HAS GENERAL AND COMPLETE SUPERVISION AND CONTROL OVER THE
VALUATION, ASSESSMENT AND EQUALIZATION OF ALL PROPERTY.  BEFORE
ENTERING UPON HIS DUTIES IN THE ASSESSMENT OF PROPERTY, EACH MEMBER OF
THE COMMISSION MUST SUBSCRIBE TO AN OATH THAT HE WILL WELL AND TRULY
VALUE AND ASSESS ALL PROPERTY REQUIRED TO BE ASSESSED.  FN4  THE
COMMISSION HAS FULL POWER TO SUMMON WITNESSES AND HEAR EVIDENCE, BUT
FURTHER, BEFORE ASSESSMENTS ARE FINALLY DETERMINED, ALL PERSONS
INTERESTED HAVE THE RIGHT, ON WRITTEN APPLICATION, TO APPEAR AND BE
HEARD. 

THE MISSOURI PACIFIC HAS BEEN IN REORGANIZATION UNDER SEC. 77, WITH
RESPONDENT AS TRUSTEE, SINCE 1933.  IN 1939, AS IN THE PRECEDING YEARS,
THE RAILROAD'S PROPERTIES WERE BEING OPERATED BY THE TRUSTEE.  THE
COMMISSION, AFTER A HEARING IN WHICH THE TRUSTEE PARTICIPATED, FIXED
THE VALUE OF THE RAILROAD'S ARKANSAS PROPERTY, AND LEVIED AN ASSESSMENT
FOR 1939.  THE TRUSTEE'S MOTION FOR REHEARING WAS HEARD, CONSIDERED,
AND OVERRULED BY THE COMMISSION.  THE TRUSTEE CONCEDES HERE THAT THE
HEARING GRANTED BY THE COMMISSION WAS IN "FULL COMPLIANCE WITH ALL THE
ADMINISTRATIVE STEPS REQUIRED BY THE ARKANSAS STATUTE."  UNDER
CONTROLLING ARKANSAS LAW, IT IS PROVIDED THAT "WITHIN THIRTY DAYS AFTER
THE ENTRY ON THE RECORD OF THE SAID ARKANSAS CORPORATION COMMISSION OF
ANY ORDER MADE BY IT, ANY PARTY AGGRIEVED MAY FILE A WRITTEN MOTION
WITH ANY MEMBER OF SUCH COMMISSION OR WITH THE SECRETARY THEREOF
PRAYING FOR APPEAL FROM SUCH ORDER TO THE CIRCUIT COURT OF PULASKI
COUNTY; AND THEREUPON SAID APPEAL SHALL BE AUTOMATICALLY DEEMED AS
GRANTED AS A MATTER OF RIGHT WITHOUT ANY FURTHER ORDER."  FN5  ANY
PARTY AGGRIEVED BY THE CIRCUIT COURT'S DECISION MAY THEN OBTAIN AS A
MATTER OF RIGHT AN APPEAL TO THE SUPREME COURT OF THE STATE.  FN6  IT
IS PROVIDED BY STATUTE THAT PREFERENTIAL STANDING ON THE DOCKET BE
GIVEN TO APPEALS FROM THE COMMISSION TO THE CIRCUIT COURT, AND FROM THE
CIRCUIT COURT TO THE SUPREME COURT. 

THE COMMISSION'S FINAL ORDER FIXING THE VALUE OF THE RAILROAD'S
PROPERTY FOR TAX ASSESSMENT WAS ENTERED ON DECEMBER 4, 1939.  THE
TRUSTEE DID NOT APPEAL TO THE CIRCUIT COURT OF PULASKI COUNTY WITHIN
THIRTY DAYS AS AUTHORIZED BY ARKANSAS LAW, AND THE ASSESSMENT OF THE
CORPORATION COMMISSION THEREUPON BECAME FINAL.  THUS TESTED BY ARKANSAS
TAXATION LEGISLATION, THE ASSESSED TAXES WERE, IN THE LANGUAGE OF SEC.
64(A), "LEGALLY DUE AND OWING" TO THE STATE IN THE "AMOUNT" FIXED BY
THE COMMISSION, AND WERE NOT SUBJECT TO FURTHER JUDICIAL REVIEW, UNLESS
THE SPECIAL CIRCUMSTANCE THAT A TAXPAYER IS IN BANKRUPTCY OR
REORGANIZATION PLACES IT IN A SEPARATE TAX CLASSIFICATION DIFFERENT
FROM THAT OF ALL OTHER ARKANSAS TAXPAYERS.    BUT THREE MONTHS AFTER
THE EXPIRATION OF THE TIME ALLOWED BY THE STATE FOR THE TRUSTEE TO
APPEAL FROM THE COMMISSION'S ORDER - SPECIFICALLY, ON APRIL 11, 1940 -
THE TRUSTEE PETITIONED THE BANKRUPTCY COURT, SITTING IN MISSOURI, TO
DETERMINE THE "AMOUNT OR LEGALITY" OF THE ARKANSAS TAX BY REVISING THE
PROPERTY VALUE FOUND BY THE CORPORATION COMMISSION AND UPON WHICH THE
AMOUNT WAS BASED.  THE BASIS OF THE TRUSTEE'S PETITION WAS THAT THE
COMMISSION HAD MADE AN OVERASSESSMENT, IN THAT AFTER A HEARING IT HAD
DETERMINED THE PROPERTY TO BE WORTH FAR MORE THAN ITS ACTUAL VALUE. 
THIS ARGUMENT RESTED UPON A CONTENTION THAT THE COMMISSION HAD
OVERVALUED THE PROPERTY BY GIVING "PREDOMINANT WEIGHT  ...  TO ORIGINAL
COST AND TO COST OF REPRODUCTION, AND WHOLLY INADEQUATE CONSIDERATION
...  TO THE MARKET VALUE OF THE RAILROAD'S STOCKS AND BONDS AND TO AN
ENORMOUS REDUCTION IN EARNINGS OCCASIONED BY GENERAL BUSINESS
CONSIDERATIONS AND TO RAPID INCREASE OF COMPETITION FROM BUSES, TRUCKS,
WATER AND AIR."  THE BANKRUPTCY COURT WAS ASKED TO FIND THE
COMMISSION'S TAX ASSESSMENT ILLEGAL UPON THREE GROUNDS:  (1) THE VALUE
DETERMINED BY THE BOARD WAS GREATLY IN EXCESS OF THE FAIR MARKET VALUE
OF THE RAILROAD'S PROPERTY AND THEREFORE THERE WAS A VIOLATION OF THAT
"UPON THE CONSIDERATION OF WHAT A CLEAR FEE SIMPLE TITLE THERETO WOULD
SELL FOR UNDER CONDITIONS UNDER WHICH THAT CHARACTER OF PROPERTY IS
USUALLY SOLD."  FN7  (2) THE ASSESSMENT WAS IN VIOLATION OF SEC. 5 OF
ARTICLE 16 OF THE CONSTITUTION OF ARKANSAS WHICH PROVIDES THAT ALL
PROPERTY SHALL BE TAXED ACCORDING TO ITS VALUE AND THAT NO ONE SPECIES
OF PROPERTY FROM WHICH A TAX MAY BE COLLECTED SHALL BE TAXED HIGHER
THAN ANOTHER SPECIES OF PROPERTY OF EQUAL VALUE, AND THAT ALL VALUES
SHALL BE ASCERTAINED SO AS TO MAKE THE SAME EQUAL AND UNIFORM
THROUGHOUT THE STATE.  (3) THE ALLEGED EXCESSIVE VALUATION FIXED BY THE
COMMISSION WAS IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES. 

IT IS THUS OBVIOUS THAT THE TRUSTEE'S PETITION, WHICH THE BANKRUPTCY
COURT REFUSED TO DISMISS, RESTED ENTIRELY UPON THE ASSUMPTION THAT SEC.
64(A)(4) GAVE THE BANKRUPTCY COURT POWER TO HOLD A COMPLETELY NEW
HEARING IN ORDER TO SET ITS OWN VALUE ON THE PROPERTY, REGARDLESS OF
THE VALUE FIXED BY THE STATE THROUGH ITS EXPERT AND SPECIALLY
CONSTITUTED QUASI-JUDICIAL AGENCY.  FN8 

BUT WE DO NOT SO INTERPRET SEC. 64(A)(4).  WHAT SEC. 64(A)(4) RELATES
TO IS "TAXES LEGALLY DUE AND OWING BY THE BANKRUPT."  AND WHAT THAT
AMOUNT OR LEGALITY OF ANY TAXES, SUCH QUESTION SHALL BE HEARD AND
DETERMINED BY THE COURT; ...  "  NOTHING IN THIS LANGUAGE INDICATES
THAT TAXPAYERS IN BANKRUPTCY OR REORGANIZATION ARE INTENDED TO HAVE THE
EXTRAORDINARY PRIVILEGE OF TWO SEPARATE TRIALS, ONE STATE AND ONE
FEDERAL, ON AN IDENTICAL ISSUE OF CONTROVERTED FACT - THE VALUE OF THE
PROPERTY TAXED.  MANIFESTLY, WHETHER OR NOT TAXES ARE "LEGALLY DUE AND
OWING" TO A STATE DEPENDS UPON THE VALID LAWS OF THAT STATE.  AD
VALOREM TAXES DEPEND UPON A DETERMINATION OF VALUE.  THE GOVERNMENTAL
FUNCTION OF FIXING THE VALUE FOR TAX PURPOSES HAS RARELY, IF EVER, BEEN
A JUDICIAL FUNCTION.  THE "LEGALITY" OF THE ACTION OF ARKANSAS IN
ENTRUSTING THE DETERMINATION OF VALUE TO ITS CORPORATION COMMISSION IS
NOT CHALLENGED HERE, AS OF COURSE IT COULD NOT BE.  IF THE COMMISSION
PROPERLY FOUND THE VALUE OF THE PROPERTY, THE "AMOUNT" OF THE TAXES IS
NOT IN QUESTION.  FOR IT IS NOT ASSERTED THAT THE COMMISSION MADE AN
IMPROPER ARITHMETICAL COMPUTATION IN APPLYING THE LEGAL TAX RATE TO THE
DETERMINED PROPERTY VALUE.  IT IS IN THIS RESPECT, AS WELL AS WITH
REGARD TO THE DISSIMILAR DUTIES AND FUNCTIONS OF THE STATE
ADMINISTRATIVE AGENCIES INVOLVED, THAT THIS CASE DIFFERS FROM THAT OF
NEW JERSEY V. ANDERSON, 203 U.S. 483, UPON WHICH THE TRUSTEE HERE
STRONGLY RELIES.  IN THAT CASE, AS HERE, THE RELEVANT PROVISION OF SEC.
64(A) WAS RELIED ON AS AUTHORIZING THE BANKRUPTCY COURT TO DETERMINE
THE "AMOUNT OR LEGALITY" OF TAXES.  NEW JERSEY HAD IMPOSED A FRANCHISE
TAX UPON THE OUTSTANDING - NOT THE AUTHORIZED - CAPITAL STOCK OF
CORPORATIONS, VARYING IN PROPORTION TO THE NUMBER OF SHARES.  A STATE
AGENCY, WITHOUT A HEARING, IMPOSED A TAX ON THE $40,000,000 AUTHORIZED
STOCK OF THE COMPANY INVOLVED, WHEN IN FACT THE COMPANY HAD ONLY
$10,000,000 OF SUCH STOCK OUTSTANDING.  THIS COURT SAID:  "IT MAY WELL
BE DOUBTED WHETHER THE BOARD HAD POWER TO TAX ANY OTHER STOCK (EXCEPT
THAT OUTSTANDING).  BUT BE THAT AS IT MAY, SECTION 64A SPECIFICALLY
PROVIDES THAT IN CASE ANY QUESTION ARISES AS TO THE AMOUNT OR LEGALITY
OF TAXES, THE SAME SHALL BE HEARD AND DETERMINED BY THE COURT, WITH A
VIEW TO ASCERTAINING THE AMOUNT REALLY DUE.  WE DO NOT THINK IT WAS THE
INTENTION OF CONGRESS TO CONCLUDE THE BANKRUPTCY COURTS BY THE FINDINGS
OF BOARDS OF THIS CHARACTER, AND THAT THE CLAIM SHOULD HAVE BEEN UPON
THE BASIS OF THE CAPITAL STOCK ACTUALLY OUTSTANDING."  BUT IN THAT CASE
THE TRUSTEE ARGUED IN HIS BRIEF BEFORE THIS COURT THAT UNDER
CONTROLLING NEW JERSEY LAW "THE ASSESSORS ACTED MINISTERIALLY, NOT
JUDICIALLY," THEIR "DETERMINATION WAS MERELY COMPUTATION," AND THEIR
ACTIONS EXCEEDED THEIR STATUTORY AUTHORITY.  FN9 

THE ARKANSAS CORPORATION COMMISSION, HOWEVER, DOES NOT ACT
MINISTERIALLY.  ON THE CONTRARY, IT IS A QUASIJUDICIAL AGENCY ENTRUSTED
WITH WIDE RESPONSIBILITIES IN CONNECTION WITH THE GENERAL TAX SYSTEM OF
THE STATE.  UPON IT THE STATE RELIES FOR THE HEARING AND DETERMINATION
OF MATTERS ESSENTIAL TO THE MAINTENANCE AND FAIR FUNCTIONING OF A
UNIFORM TAX SYSTEM.  FOR REASONS DEEMED SUITABLE TO IT, THE STATE HAS
ELECTED TO CONFIDE THIS DUTY TO THE SAME AGENCY WHICH HAS POWER TO
EXERCISE STATE-WIDE REGULATORY SUPERVISION OVER PUBLIC UTILITIES,
INCLUDING RAILROADS.  THE DIFFICULTIES IN FIXING RAILROAD VALUATIONS
ARE WELL KNOWN, AND HAVE BEEN MANY TIMES ADVERTED TO BY THIS COURT. 
FN10  THE CORPORATION COMMISSION HAS BEEN CHOSEN BY ARKANSAS AS THE
ULTIMATE GUARDIAN OF THE RIGHTS OF THE STATE AND ITS TAXPAYERS, SUBJECT
ONLY TO THAT JUDICIAL REVIEW PROVIDED FOR BY THE STATE.  "THE STATE HAS
CONFIDED THOSE RIGHTS TO ITS PROTECTION AND HAS TRUSTED TO ITS HONOR
AND CAPACITY AS IT CONFIDES THE PROTECTION OF OTHER SOCIAL RELATIONS TO
THE COURTS OF LAW."  CHICAGO, B. & Q. RY. CO. V. BABCOCK, 204 U.S. 585,
598. 

IF THE TRUSTEE HAD AVAILED HIMSELF OF HIS RIGHT OF APPEAL TO THE
COURTS OF ARKANSAS, WITH AN ULTIMATE RIGHT OF APPEAL TO THIS COURT FOR
FINAL DETERMINATION OF FEDERAL QUESTIONS, IT IS DIFFICULT TO BELIEVE
THAT IT WOULD NOW BE SERIOUSLY ARGUED THAT CONGRESS, BY SEC. 64(A)(4),
INTENDED TO IMPOSE UPON THE BANKRUPTCY COURT THE UNUSUAL POWER AND
DELICATE DUTY OF TRYING OUT AFRESH THE FACTS FOUND BY THE STATE WITH
RELATION TO THE VALUE OF PROPERTY.  AND THERE IS NO MORE REASON TO
ASSUME THAT CONGRESS INTENDED THAT THE BANKRUPTCY COURT SHOULD FAIL TO
GIVE RESPECT TO AN UNAPPEALED DETERMINATION OF VALUE MADE BY THE
ARKANSAS CORPORATION COMMISSION.  BANKRUPTCY AND REORGANIZATION
PROCEEDINGS TODAY COVER A WIDE AREA IN THE BUSINESS FIELD.  BUT THERE
IS NOTHING IN THE HISTORY OF BANKRUPTCY OR REORGANIZATION LEGISLATION
TO SUPPORT THE THEORY THAT CONGRESS INTENDED TO SET THE FEDERAL COURTS
UP AS SUPER-ASSESSMENT TRIBUNALS OVER STATE TAXING AGENCIES.  THE
EXPRESS LEGISLATIVE PURPOSE OF ARKANSAS TO MOVE TOWARDS A MORE NEARLY
UNIFORM AND FAIRLY DISTRIBUTED TAX BURDEN THROUGH RELYING ON
SUPERVISION BY A SINGLE AGENCY COULD BE IN LARGE PART FRUSTRATED BY THE
CONSTRUCTION OF THE BANKRUPTCY ACT FOR WHICH THE TRUSTEE HERE
CONTENDS.  SECTION 64(A), THUS CONSTRUED, WOULD TEND TO OBSTRUCT, AND
NOT TO FACILITATE, THE ENFORCEMENT OF STATE TAX LAWS.  FN11  NOTHING IN
THE LANGUAGE OF THE ACT REQUIRES SUCH A CONSTRUCTION.  AND THE POLICY
OF REVISING AND REDETERMINING STATE TAX VALUATIONS CONTENDED FOR BY THE
TRUSTEE WOULD BE A COMPLETE REVERSAL OF OUR HISTORIC NATIONAL POLICY OF
FEDERAL NON-INTERFERENCE WITH THE TAXING POWER OF STATES. 

FOR THE REASONS GIVEN, IT IS OUR OPINION THAT THE DISTRICT COURT
SHOULD HAVE DISMISSED THE TRUSTEE'S PETITION.  REVERSED. 

FN1  SECTION 77(1) PROVIDES:  "IN PROCEEDINGS UNDER THIS SECTION AND
CONSISTENT WITH THE PROVISIONS THEREOF, THE JURISDICTION AND POWERS OF
THE COURT,  ...  AND THE RIGHTS AND LIABILITIES OF CREDITORS,  ...
SHALL BE THE SAME AS IF A VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN
FILED AND A DECREE OF ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE
DEBTOR'S PETITION WAS FILED." 

AMONG THE FEDERAL COURT DECISIONS CITED IN BRIEFS SUPPORTING THE
PETITION AS BEARING ON THE ISSUE OF INCONSISTENCY BETWEEN SECS. 64(A)
AND 77, EITHER DIRECTLY OR INDIRECTLY, ARE THE FOLLOWING:  LOWDEN V.
NORTHWESTERN NATIONAL BANK & TRUST CO., 298 U.S. 160, 164; IN RE
CHICAGO, M., ST. P. & P.R. CO., 27 F.SUPP.  685; CITY OF SPRINGFIELD V.
HOTEL CHARLES CO., 84 F.2D 589; IN RE A.V. MANNING'S SONS, 16 F.SUPP. 
932; IN RE NEW YORK, O. & W. RY. CO., 25 F.SUPP.  709; TEXAS CO. V.
BLUE WAY LINES, 93 F.2D 593; HENDERSON COUNTY V. WILKINS, 43 F.2D 670. 
AND SEE FINLETTER, THE LAW OF BANKRUPTCY REORGANIZATION (1939) PP. 343
344. 

FN2  ARK. DIG.  STATS.  (POPE, 1937) SEC. 1930. 

FN3  ID., SECS. 1930-2128. 

FN4  ID., SEC. 2042. 

FN5 ID., SEC. 2019. 

FN6  ID., SEC. 2020. 

FN7  ID., SEC. 2044. 

FN8  AMONG THE LOWER FEDERAL COURT DECISIONS DISCUSSING THE POWER OF
BANKRUPTCY COURTS UNDER SEC. 64(A)(4) ARE:  IN RE GOULD MFG. CO., 11
F.SUPP.  644; IN RE 168 ADAMS BUILDING CORP., 27 F.SUPP.  247,
AFFIRMED, 105 F.2D 704; IN RE SCHACH, 17 F.SUPP.  437, 439; IN RE LANG
BODY CO., 92 F.2D 338; HENDERSON COUNTY V. WILKINS, 43 F.2D 670. 

FN9  IN ADVANCING THIS ARGUMENT COUNSEL CALLED ATTENTION TO THE CASE
OF PEOPLE'S INVESTMENT CO. V. STATE BOARD OF ASSESSORS, 66 N.J.L. 175;
48 A. 579, IN WHICH THE COURT HAD SAID THAT IT WAS BEYOND THE
JURISDICTION OF THE TAX AGENT TO LEVY A TAX ON ANY BUT THE OUTSTANDING
CAPITAL STOCK.  COUNSEL ALSO RELIED ON ARIMEX COPPER CO. V. STATE BOARD
OF ASSESSORS, 69 N.J.L. 121; 54A.  244. 

FN10  E.G., NASHVILLE, C. & ST. L. RY. V. BROWNING, 310 U.S. 362,
370; ROWLEY V. CHICAGO & N.W. RY. CO., 293 U.S. 102, 109, AND CASES
CITED. 

FN11  BOTELER V. INGELS, 308 U.S. 57, 61; HEALY V. RATTA, 292 U.S.
263, 270; PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, 185.  CF. BANKRUPTCY
ACT OF 1867, SEC. 28(5), 14 STAT. 531; ACT OF JUNE 18, 1934, 28 U.S.C.
SEC. 124(A), 48 STAT. 993. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















PITTSBURGH GLASS CO. V. BOARD, 313 U.S. 146 


NO. 521.  ARGUED MARCH 7, 10, 1941.  - DECIDED APRIL 28, 1941.  - 113
F.2D 698, AFFIRMED. 


1.  A RULING OF THE NATIONAL LABOR RELATIONS BOARD DETERMINING AN
APPROPRIATE UNIT FOR COLLECTIVE BARGAINING IS NOT DIRECTLY REVIEWABLE
BUT IS SUBJECT TO CHALLENGE WHEN A COMPLAINT OF UNFAIR PRACTICES IS
BASED UPON IT.  P. 154. 

2.  AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD REQUIRING AN
EMPLOYER TO CEASE AND DESIST FROM RECOGNIZING OR DEALING WITH A UNION
AS A LABOR ORGANIZATION, ENTERED ON STIPULATION OF THE EMPLOYER,
WITHOUT HEARING, IN A PROCEEDING CHARGING VIOLATIONS OF SECS. 8(1) AND
(2) OF THE NATIONAL LABOR RELATIONS ACT TO WHICH THE UNION WAS NOT A
PARTY, IS BINDING UPON THE EMPLOYER BUT LEAVES THE UNION'S PRIVATE
RIGHTS UNTOUCHED.  P. 155. 

3.  IN PROCEEDINGS BEFORE THE BOARD UNDER SEC. 9(B) OF THE ACT TO
DETERMINE THE APPROPRIATE BARGAINING UNIT OR UNITS FOR THE EMPLOYEES IN
A PLURALITY OF PLANTS OPERATED BY THE SAME EMPLOYER AND MANUFACTURING
SIMILAR PRODUCTS, THE DESIRE OF THE EMPLOYEES AT ONE OF THE PLANTS TO
BE REPRESENTED BY THEIR OWN UNION RATHER THAN BY A SINGLE ORGANIZATION
REPRESENTING THE EMPLOYEES IN ALL THE PLANTS, IS A FACT TO BE WEIGHED,
TOGETHER WITH THE SIMILARITY OF WORKING DUTIES AND CONDITIONS, THE
CHARACTER OF THE VARIOUS PLANTS, AND THE ANTICIPATED EFFECTIVENESS OF
THE UNIT TO BE CHOSEN IN MAINTAINING INDUSTRIAL PEACE THROUGH
COLLECTIVE BARGAINING.  P. 156. 

4.  THE AVAILABILITY OF A WORKERS' ORGANIZATION FOR PURPOSES OF
REPRESENTATION AT A PARTICULAR PLANT IS NOT IN ITSELF DECISIVE AGAINST
JOINING THE EMPLOYEES IN THAT PLANT WITH THOSE OF OTHER PLANTS OF THE
SAME EMPLOYER AS AN APPROPRIATE BARGAINING UNIT.  P. 156. 

5.  IN DETERMINING WHETHER THE EMPLOYEES OF A PLANT HAVING ITS
SEPARATE UNION SHOULD BE INCLUDED WITH THOSE IN OTHER PLANTS OPERATED
BY THE SAME EMPLOYER, AS AN APPROPRIATE BARGAINING UNIT, THE FACT OF
EMPLOYER-DOMINATION IN THAT PLANT IS TO BE CONSIDERED; BUT IT PERTAINS
RATHER TO THE SUBSEQUENT CERTIFICATION OF BARGAINING REPRESENTATIVE. 
P. 156. 

6.  IN PROCEEDINGS UNDER SEC. 9(B) OF THE NATIONAL LABOR RELATIONS
ACT IN WHICH ALL THE EMPLOYEES IN A PLURALITY OF SEPARATE PLANTS WERE
FOUND TO CONSTITUTE AN APPROPRIATE BARGAINING UNIT AND A SINGLE LABOR
FEDERATION WAS CERTIFIED AS THEIR BARGAINING REPRESENTATIVE, THE BOARD
HAD RECEIVED THE PETITION OF A UNION INCLUDING A LARGE MAJORITY OF THE
WORKERS AT ONE OF THE PLANTS SHOWING THEIR DESIRE TO BE CLASSED AS A
SEPARATE UNIT WITH SEPARATE REPRESENTATION.  IN A SUBSEQUENT PROCEEDING
UNDER SECS. 8(1) AND (5), CHARGING THE EMPLOYER WITH UNFAIR LABOR
PRACTICE IN REFUSING TO BARGAIN WITH THE FEDERATION SO CERTIFIED,
FURTHER EVIDENCE OF THIS DESIRE OF THE WORKERS IN THE SINGLE PLANT WAS
OFFERED IN THE ENDEAVOR TO SHOW THAT THEIR INCLUSION IN THE UNIT WAS
UNLAWFUL.  HELD: 

(1)  THAT REFUSAL BY THE BOARD TO ADMIT THE ADDITIONAL EVIDENCE WAS
NOT ARBITRARY, SINCE THE TWO PROCEEDINGS WERE VIRTUALLY ONE AND THE
KNOWLEDGE OF THE WORKERS' DESIRES OBTAINED IN THE FIRST COULD PROPERLY
BE CONSIDERED IN THE SECOND.  P. 157. 

(2)  A REFUSAL TO ADMIT EVIDENCE THAT THE UNION AT THE SINGLE PLANT
WAS FREE FROM EMPLOYER-DOMINATION, WAS WITHIN THE DISCRETION OF THE
BOARD, IN VIEW OF AN ORDER FORBIDDING SUCH DOMINATION, WHICH IT HAD
MADE, ON STIPULATION OF THE EMPLOYER, IN A DISTINCT PROCEEDING IN WHICH
THE UNION FAILED TO APPEAR, AND IN VIEW OF THE FULL INVESTIGATION MADE
BY THE BOARD IN THE UNIT HEARING, AT WHICH THE UNION AND ALL OTHER
INTERESTED PARTIES WERE PRESENT.  P. 158. 

(3)  REFUSAL TO ADMIT EVIDENCE CUMULATIVE TO THAT RECEIVED AT THE
UNIT HEARING, TO SHOW THAT THE EMPLOYEES AT THE LOCAL PLANT HAD
INTERESTS DISTINCT FROM THOSE OF THE EMPLOYEES AT THE OTHER PLANTS, WAS
JUSTIFIABLE IN VIEW OF THE TESTIMONY ON THE SUBJECT ADDUCED BY THE
UNION AT THE UNIT HEARING.  P. 161. 

(4)  EVIDENCE THAT THE UNION HAD BARGAINED FOR ITS MEMBERS WITH THE
EMPLOYER UNTIL THE EMPLOYER REFUSED TO DO SO BECAUSE OF CHARGES OF
DOMINATION FILED AGAINST IT, AND EVIDENCE THAT THE MEMBERSHIP OF THE
UNION HAD INCREASED, MIGHT PROPERLY BE REJECTED BY THE BOARD AS OF
SLIGHT PROBATIVE VALUE IN DETERMINING AN APPROPRIATE BARGAINING UNIT. 
P. 162. 

(5)  CONSIDERING TOGETHER ALL THE CONTENTIONS ABOUT EXCLUSION OF
EVIDENCE, THE COURT DOES NOT FIND THAT IN THE AGGREGATE THE EVIDENCE
EXCLUDED COULD HAVE MATERIALLY AFFECTED THE OUTCOME OF THE "APPROPRIATE
UNIT" ISSUE, IN THE LIGHT OF THE CRITERIA BY WHICH THE BOARD DETERMINED
THAT ISSUE.  P. 163. 

7. EVIDENCE HELD ADEQUATE TO SUPPORT A CONCLUSION OF THE LABOR BOARD
THAT ALL OF THE EMPLOYEES IN A PLURALITY OF PLANTS SHOULD BE INCLUDED
IN ONE BARGAINING UNIT NOTWITHSTANDING THAT ONE OF THEM WAS A SEPARATE
INDUSTRIAL UNIT, WHICH WAS NOT MECHANICALLY INTEGRATED WITH THE OTHERS,
WHICH DID NOT EXCHANGE EMPLOYEES WITH THEM, AND WHICH HAD ITS OWN
SUPERINTENDENT TO DEAL WITH LABOR GRIEVANCES AND ITS OWN PURCHASING
AGENT.  P. 163. 

LABOR POLICIES AND WAGES FOR ALL THE PLANTS WERE DETERMINED AT A
CENTRAL OFFICE.  WORK, WAGES, HOURS, WORKING CONDITIONS AND
MANUFACTURING PROCESSES WERE SIMILAR.  THE BOARD WAS JUSTIFIED IN
FINDING THAT AN INDEPENDENT UNIT AT THE PLANT IN QUESTION WOULD
FRUSTRATE GENERAL EFFORT AT LABOR ADJUSTMENTS, AND WOULD ENABLE THE
EMPLOYER TO USE THE PLANT FOR CONTINUOUS OPERATION IN CASE OF STOPPAGE
OF LABOR AT THE OTHER PLANTS.  P. 164. 

8.  SECTION 9(B) OF THE NATIONAL LABOR RELATIONS ACT, WHICH PROVIDES
THAT THE BOARD "SHALL DECIDE IN EACH CASE WHETHER, IN ORDER TO INSURE
THE EMPLOYEES THE FULL BENEFIT OF THEIR RIGHT TO SELF-ORGANIZATION AND
TO COLLECTIVE BARGAINING, AND OTHERWISE TO EFFECTUATE THE POLICIES OF
THIS ACT, THE UNIT APPROPRIATE FOR THE PURPOSE OF COLLECTIVE BARGAINING
SHALL BE THE EMPLOYER UNIT, CRAFT UNIT, PLANT UNIT, OR SUBDIVISION
THEREOF," SUPPLIES ADEQUATE STANDARDS FOR ADMINISTRATIVE ACTION AND
DOES NOT UNCONSTITUTIONALLY DELEGATE LEGISLATIVE POWER.  P. 164. 

PITTSBURGH PLATE GLASS CO. V. NATIONAL LABOR RELATIONS BOARD* . 

*TOGETHER WITH NO. 523, CRYSTAL CITY GLASS WORKERS' UNION V. NATIONAL
LABOR RELATIONS BOARD, ALSO ON WRIT OF CERTIORARI, 311 U.S. 642, TO THE
CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 311 U.S. 642, TO REVIEW A JUDGMENT AFFIRMING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD.  15 N.L.R.B. 515.  SEE ALSO 102
F.2D 1004, ENFORCING 8 N.L.R.B. 1210; AND 10 N.L.R.B. 1111. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS IN THE TWO CASES COVERED BY THESE CERTIORARIS  FN1
ARE THE PITTSBURGH PLATE GLASS COMPANY, AN EMPLOYER, AND THE CRYSTAL
CITY GLASS WORKERS UNION, AN "INDEPENDENT" OR "LOCAL" UNION, THAT IS A
UNION UNAFFILIATED WITH ANY OTHER EMPLOYEE ORGANIZATION.  CHARGED WITH
AN UNFAIR LABOR PRACTICE IN REFUSING TO BARGAIN COLLECTIVELY WITH DULY
ACCREDITED REPRESENTATIVES OF ITS EMPLOYEES, THE COMPANY COUNTERED THE
COMPLAINT WITH THE ASSERTION THAT IT HAD AND DID BARGAIN COLLECTIVELY
WITH THE PROPER REPRESENTATIVES OF ITS EMPLOYEES BUT THAT IT DENIED THE
VALIDITY OF A BOARD DECISION INCLUDING THE CRYSTAL CITY PLANT OF THE
COMPANY AS A PART OF THE APPROPRIATE BARGAINING UNIT.  THE CENTRAL
ISSUE THUS IS THE LEGALITY OF THE LABOR BOARD'S DECISION, UNDER SEC.
9(B) OF THE NATIONAL LABOR RELATIONS ACT,  FN2  DETERMINING THAT "THE
PRODUCTION AND MAINTENANCE EMPLOYEES OF THE COMPANY" AT ALL SIX PLANTS
OF ITS FLAT GLASS DIVISION, AS A WHOLE, CONSTITUTE THE APPROPRIATE UNIT
FOR COLLECTIVE BARGAINING FOR THE CRYSTAL CITY EMPLOYEES, RATHER THAN
THE EMPLOYEES OF THE CRYSTAL CITY PLANT ONLY.  THE BOARD'S CONCLUSION
IS CHALLENGED ON THE MERITS, ON PROCEDURAL AND ON CONSTITUTIONAL
GROUNDS.  THE CERTIORARIS WERE GRANTED BECAUSE OF THE IMPORTANCE OF THE
"APPROPRIATE UNIT" PROBLEM IN THE ADMINISTRATION OF THE ACT. 

THE SIX PLANTS OF THE FLAT GLASS DIVISION ARE LOCATED IN FIVE
DIFFERENT STATES:  FORD CITY, PENNSYLVANIA; CREIGHTON, PENNSYLVANIA;
MOUNT VERNON, OHIO; CLARKSBURG, WEST VIRGINIA; HENRYETTA, OKLAHOMA; AND
CRYSTAL CITY, MISSOURI.  FN3  THE NORMAL NUMBER OF EMPLOYEES IN THE
WHOLE DIVISION IS ABOUT 6500.  THE CRYSTAL CITY PLANT, WITH 1600, AND
THE SLIGHTLY LARGER PLANTS AT FORD CITY AND CREIGHTON ACCOUNT FOR THE
BULK OF THESE WORKERS; THE REMAINING THREE TOGETHER EMPLOY ONLY ABOUT
1000.  THE FEDERATION OF FLAT GLASS WORKERS, AN AFFILIATE OF THE
CONGRESS OF INDUSTRIAL ORGANIZATION, HAS A MAJORITY OF ALL THE
EMPLOYEES IN THE FLAT GLASS DIVISION AND ALSO A MAJORITY AT EACH PLANT
EXCEPT CRYSTAL CITY.  ITS POSITION, WHICH THE BOARD SUSTAINED, IS THAT
THE ENTIRE DIVISION SHOULD BE A SINGLE BARGAINING UNIT.  THE CRYSTAL
CITY UNION, WHICH CLAIMS A MAJORITY AT THAT PLANT, AND THE COMPANY BOTH
CONTEND THAT THE CIRCUMSTANCES OF THIS CASE REQUIRE CRYSTAL CITY TO BE
SEPARATED FROM THE REST OF THE DIVISION FOR THE PURPOSE OF FIXING THE
UNIT. 

THE PRESENT PROCEEDINGS ARE THE THIRD STAGE OF THIS LABOR DISPUTE. 
ORIGINALLY, IN JUNE, 1938, THE BOARD FILED A COMPLAINT AGAINST THE
COMPANY ALLEGING DOMINATION OF AND INTERFERENCE WITH THE CRYSTAL CITY
UNION IN VIOLATION OF SECS. 8(1) AND (2).  FN4 THE CRYSTAL CITY UNION
WAS NOT NAMED AS A PARTY IN THAT PROCEEDING.  BEFORE ANY HEARING HAD
BEEN HELD THE COMPANY CONSENTED TO ENTRY OF AN ORDER THAT IT WOULD
CEASE AND DESIST FROM DOMINATING OR CONTRIBUTING TO THE CRYSTAL CITY
UNION OR FROM RECOGNIZING OR DEALING WITH IT AS A LABOR ORGANIZATION. 
THE BOARD ISSUED THE STIPULATED ORDER IN SEPTEMBER, 1938, AND LATER,
ALSO PURSUANT TO THE STIPULATION, OBTAINED AN ENFORCEMENT ORDER FROM
THE CIRCUIT COURT OF APPEALS.  FN5  THE FEDERATION OF FLAT GLASS
WORKERS, WHICH HAD FILED THE CHARGES LEADING TO THE ISSUANCE OF THE
COMPLAINT, ALSO HAD REQUESTED AN INVESTIGATION AND CERTIFICATION OF
REPRESENTATIVES PURSUANT TO SEC. 9(C) OF THE ACT.  EXTENSIVE HEARINGS
ON THIS SECOND STAGE TOOK PLACE IN OCTOBER, 1938, AT WHICH THE CRYSTAL
CITY UNION APPEARED AND PARTICIPATED.  ON JANUARY 13, 1939, THE BOARD
ISSUED ITS DECISION FIXING THE BARGAINING UNIT AND CERTIFICATION OF
REPRESENTATIVES.  THE BOARD FOUND THAT THE COMPANY'S PRODUCTION AND
MAINTENANCE EMPLOYEES THROUGHOUT THE ENTIRE FLAT GLASS DIVISION (WITH
THE EXCEPTION OF WINDOW GLASS CUTTERS, CLERICAL EMPLOYEES NOT DIRECTLY
CONNECTED WITH PRODUCTION, AND SUPERVISORY EMPLOYEES) CONSTITUTE AN
APPROPRIATE UNIT, AND IT CERTIFIED THE FEDERATION AS THE EXCLUSIVE
REPRESENTATIVE OF ALL THE EMPLOYEES IN THE UNIT.  FN6  THIS ORDER,
UNDER OUR RULING IN AMERICAN FEDERATION OF LABOR V. LABOR BOARD,  FN7
WAS NOT SUBJECT TO DIRECT JUDICIAL REVIEW UNDER SEC. 10(F) OF THE ACT. 
THE COMPANY, HOWEVER, CONTINUED TO ASSERT THAT THE CRYSTAL CITY PLANT
SHOULD BE EXCLUDED FROM THE UNIT, AND REFUSED TO BARGAIN WITH THE
FEDERATION WITH RESPECT TO THAT GROUP OF EMPLOYEES.  ACCORDINGLY, ABOUT
A MONTH AFTER ITS CERTIFICATION ORDER, THE BOARD ISSUED A COMPLAINT IN
THIS PROCEEDING, THE THIRD AND PENDING STAGE OF THE LABOR DISPUTE,
ALLEGING A REFUSAL TO BARGAIN COLLECTIVELY IN VIOLATION OF SECS. 8(1)
AND (5).  AT THE HEARING ON THIS COMPLAINT, AT WHICH THE CRYSTAL CITY
UNION WAS PERMITTED TO INTERVENE, THE TRIAL EXAMINER EXCLUDED A CERTAIN
OFFER OF PROOF BY IT AND THE COMPANY.  FOR VARIOUS REASONS THE BOARD
FOUND THAT THE EXCLUSION WAS IN PART PROPER AND FOR THE REST NON
PREJUDICIAL.  ON THE MERITS THE BOARD, WITH ONE MEMBER DISSENTING,
ADHERED TO ITS ORIGINAL VIEW THAT THE CRYSTAL CITY PLANT SHOULD BE
INCLUDED IN THE UNIT AND THEREFORE FOUND THAT THE COMPANY HAD COMMITTED
AN UNFAIR LABOR PRACTICE.  FN8  THE COMPANY AND THE CRYSTAL CITY UNION
SOUGHT REVIEW OF THE BOARD'S DECISION IN THE CIRCUIT COURT OF APPEALS,
WHICH AFFIRMED,  FN9  AND WE BROUGHT THE CASE HERE ON CERTIORARI. 

TO REACH A CONCLUSION UPON THE COMPLAINT UNDER CONSIDERATION AGAINST
THE COMPANY OF UNFAIR LABOR PRACTICES, VIOLATING SEC. 8, SUBSECTIONS
(1) AND (5) OF THE NATIONAL LABOR RELATIONS ACT, THE VALIDITY OF THE
BOARD'S DECISION AS TO THE APPROPRIATE UNIT MUST BE DECIDED.  AS THE
UNFAIR PRACTICE CHARGED WAS THE REFUSAL TO BARGAIN COLLECTIVELY BECAUSE
OF THE INCLUSION OF THE CRYSTAL CITY EMPLOYEES IN THE UNIT, IF THEY
WERE IMPROPERLY INCLUDED THE COMPLAINT FAILS. 

THE LABOR ACT PLACES UPON THE BOARD THE RESPONSIBILITY OF DETERMINING
THE APPROPRIATE GROUP OF EMPLOYEES FOR THE BARGAINING UNIT.  IN
ACCORDANCE WITH THIS DELEGATION OF AUTHORITY, THE BOARD MAY DECIDE THAT
ALL EMPLOYEES OF A SINGLE EMPLOYER FORM THE MOST SUITABLE UNIT FOR THE
SELECTION OF COLLECTIVE BARGAINING REPRESENTATIVES, OR THE BOARD MAY
DECIDE THAT THE WORKERS IN ANY CRAFT OR PLANT OR SUBDIVISION THEREOF
ARE MORE APPROPRIATE.  FN10  THE PETITIONERS' CONTENTION THAT SEC. 9(A)
GRANTS TO THE MAJORITY OF EMPLOYEES IN A UNIT APPROPRIATE FOR SUCH
PURPOSES THE ABSOLUTE RIGHT TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING  FN11  IS CORRECT ONLY IN THE
SENSE THAT THE "APPROPRIATE UNIT" IS THE ONE DECLARED BY THE BOARD
UNDER SEC. 9(B), NOT ONE THAT MIGHT BE DEEMED APPROPRIATE UNDER OTHER
CIRCUMSTANCES.  IN ITS ANNUAL REPORTS, THE BOARD HAS STATED THE GENERAL
CONSIDERATIONS WHICH MOTIVATE ITS ACTION: 

"IN DETERMINING WHETHER THE EMPLOYEES OF ONE, SEVERAL, OR ALL PLANTS
OF AN EMPLOYER, OR THE EMPLOYEES IN ALL OR ONLY A PART OF A SYSTEM OF
COMMUNICATIONS, TRANSPORTATION, OR PUBLIC UTILITIES, CONSTITUTE AN
APPROPRIATE UNIT FOR THE PURPOSES OF COLLECTIVE BARGAINING, THE BOARD
HAS TAKEN INTO CONSIDERATION THE FOLLOWING FACTORS:  (1) THE HISTORY,
EXTENT, AND TYPE OF ORGANIZATION OF THE EMPLOYEES; (2) THE HISTORY OF
THEIR COLLECTIVE BARGAINING, INCLUDING ANY CONTRACTS; (3) THE HISTORY,
EXTENT, AND TYPE OF ORGANIZATION, AND THE COLLECTIVE BARGAINING, OF
EMPLOYEES OF OTHER EMPLOYERS IN THE SAME INDUSTRY; (4) THE RELATIONSHIP
BETWEEN ANY PROPOSED UNIT OR UNITS AND THE EMPLOYER'S ORGANIZATION,
MANAGEMENT, AND OPERATION OF HIS BUSINESS, INCLUDING THE GEOGRAPHICAL
LOCATION OF THE VARIOUS PLANTS OR PARTS OF THE SYSTEM; AND (5) THE
SKILL, WAGES, WORKING CONDITIONS, AND WORK OF THE EMPLOYEES."  FN12  IN
ITS HEARINGS ON THE APPROPRIATE UNIT THE BOARD RECEIVED EVIDENCE AS TO
THE ORGANIZATION OF THE COMPANY, THE VARIETY OF ITS BUSINESS, ITS
DISTRIBUTION OF THIS BUSINESS INTO DIVISIONS AND THE LOCATION, SIZE AND
METHOD OF OPERATION OF ITS FLAT GLASS PLANTS, WHICH COMPOSED THE FLAT
GLASS DIVISION.  THE HISTORY OF COLLECTIVE BARGAINING IN THE BUSINESS
WAS DEVELOPED.  FINALLY THE RELATION OF THE SEVERAL PLANTS OF THE FLAT
GLASS DIVISION WAS EXAMINED AND THE CHARACTERISTICS OF EACH PLANT AND
THEIR RESPECTIVE EMPLOYEES GONE INTO.  FROM THIS EVIDENCE THE BOARD
DETERMINED THAT THE PRODUCTION AND MAINTENANCE EMPLOYEES OF THE SIX
SCATTERED FLAT GLASS PLANTS WERE THE APPROPRIATE UNIT AND THAT THE
FEDERATION, WHICH HAD MAJORITIES OF THE EMPLOYEES IN ALL THE PLANTS
EXCEPT CRYSTAL CITY, WAS THE LABOR REPRESENTATIVE FOR PURPOSES OF
COLLECTIVE BARGAINING. 

THE COMPANY AND THE LOCAL UNION CONTEND THAT CRYSTAL CITY'S INCLUSION
WAS ERRONEOUS BECAUSE NEITHER IN THE HEARINGS ON THE APPROPRIATE UNIT
NOR ON THIS UNFAIR LABOR PRACTICE DID THE BOARD PERMIT THE INTRODUCTION
OF MATERIAL EVIDENCE ON THE QUESTION OF APPROPRIATE UNITS, THE
EXCLUSION OF WHICH WAS PREJUDICIAL TO THE RESPONDENTS. 

WHILE THE RULING OF THE BOARD DETERMINING THE APPROPRIATE UNIT FOR
BARGAINING IS NOT SUBJECT TO DIRECT REVIEW UNDER THE STATUTE, THE
RULING IS SUBJECT TO CHALLENGE WHEN, AS HERE, A COMPLAINT OF UNFAIR
PRACTICES IS MADE PREDICATED UPON THE RULING.  FN13  PETITIONERS PRESS
THAT CHALLENGE UPON THE GROUND (1) THAT THE PROCEDURE DENIED DUE
PROCESS OF LAW, (2) THAT THERE WAS NO SUBSTANTIAL EVIDENCE TO JUSTIFY
THE RULING, AND (3) THAT THE AUTHORITY GRANTED THE BOARD IS AN
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER. 

FIRST.  PETITIONERS FIND IN THE REFUSAL OF THE BOARD TO ADMIT CERTAIN
PROFFERED EVIDENCE IN THE UNIT HEARING AND IN THIS HEARING A DENIAL OF
DUE PROCESS IN THAT THE EXCLUSION WAS ILLEGAL AND ARBITRARY IN
DEPRIVING THE PARTIES OF A FULL AND FAIR HEARING AS GUARANTEED BY THE
FIFTH AMENDMENT.  THE PETITIONERS SOUGHT TO ADDUCE THE EXCLUDED
EVIDENCE BY PETITION TO THE CIRCUIT COURT OF APPEALS FOR AN ORDER THAT
THE ADDITIONAL EVIDENCE BE TAKEN BY THE BOARD.  FN14  THIS WAS DENIED. 

THERE IS NO CHALLENGE TO THE SEPTEMBER 22, 1938, ORDER OF THE BOARD,
SUBSEQUENTLY AFFIRMED BY THE COURT,  FN15  IN THE ORIGINAL PROCEEDING
WHERE THE CRYSTAL CITY GLASS WORKERS UNION WAS NOT A PARTY.  THIS
WITHDRAWS THE EMPLOYER'S RECOGNITION OF THE UNION AS THE EMPLOYEES'
REPRESENTATIVE "AS A LABOR ORGANIZATION."  AS THE ORDER DOES NOT RUN
AGAINST THE UNION, ITS PRESENCE WAS UNNECESSARY.  FN16  AFTER SUCH AN
ORDER THE EMPLOYER MAY NOT BE COMPELLED BY ANY OTHER AGENCY OF THE
GOVERNMENT TO PERFORM ANY ACTS INCONSISTENT WITH THAT ORDER.  FN17
WHILE IT LEAVES THE UNION'S PRIVATE RIGHTS UNTOUCHED THIS ORDER DOES
FORBID FURTHER DEALINGS BY THE COMPANY WITH THE UNION AS LABOR
REPRESENTATIVE OF THE EMPLOYEES.  NATIONAL LICORICE CO. V. LABOR BOARD,
309 U.S. 350, 366. 

ACQUIESCING, FOR THE ARGUMENT, IN THE CONCLUSION THAT SELECTION OF
THE APPROPRIATE UNIT IS A FUNCTION OF THE BOARD, PETITIONERS URGE THAT
THIS FUNCTION MUST BE EXERCISED IN THE LIGHT OF PROPERLY AVAILABLE
EVIDENCE.  MUCH MAY BE AND WAS SAID UPON EITHER SIDE OF THE ISSUE AS TO
WHETHER CRYSTAL CITY PLANT OR THE FLAT GLASS DIVISION WOULD BE THE MOST
EFFICIENT COLLECTIVE BARGAINING UNIT.  ADDITIONAL EVIDENCE MIGHT HAVE
BROUGHT THE BOARD TO A DIFFERENT CONCLUSION.  HENCE, URGE PETITIONERS,
THE BOARD'S REFUSAL TO PERMIT THE INTRODUCTION OF CERTAIN EVIDENCE
BEFORE IT, EITHER IN THE HEARING ON THE APPROPRIATE UNIT AND
CERTIFICATION OF REPRESENTATIVES OR IN THIS PRESENT HEARING ON UNFAIR
LABOR PRACTICES PREDICATED UPON THAT DETERMINATION AND CERTIFICATION,
IS IMPORTANT.  AS THE BOARD'S CONCLUSION UPON THE APPROPRIATE UNIT
DETERMINED THAT THE FEDERATION, THE CHOICE OF A MAJORITY IN THE
SELECTED UNIT, WOULD BE THE BARGAINING REPRESENTATIVE FOR ALL,
INCLUDING THE CRYSTAL CITY EMPLOYEES, WE NEED NOT GIVE SPECIFIC
CONSIDERATION TO THE REFUSAL OF THE BOARD TO CERTIFY THE PETITIONER,
THE CRYSTAL CITY GLASS WORKERS UNION, AS THE BARGAINING REPRESENTATIVE
OF THOSE WORKERS.  CERTIFICATION OF THE BARGAINING REPRESENTATIVE
FOLLOWS THE DETERMINATION OF THE APPROPRIATE UNIT.  AS WILL PRESENTLY
APPEAR, HOWEVER, THIS DOES NOT DISPOSE OF THE ADMISSIBILITY OF EVIDENCE
AS TO THE CRYSTAL CITY WORKERS' DESIRE TO BE REPRESENTED BY THE UNION. 
THIS IS A FACT WHICH HAS A BEARING ON THE DETERMINATION OF THE
APPROPRIATE UNIT. 

FOR THE SAME REASON, THE AVAILABILITY OF A WORKERS' ORGANIZATION FOR
PURPOSES OF REPRESENTATION IS NOT IN ITSELF DECISIVE IN DETERMINING THE
APPROPRIATE BARGAINING UNIT.  NATURALLY THE WISHES OF EMPLOYEES ARE A
FACTOR IN A BOARD CONCLUSION UPON A UNIT.  THEY ARE TO BE WEIGHED WITH
THE SIMILARITY OF WORKING DUTIES AND CONDITIONS, THE CHARACTER OF THE
VARIOUS PLANTS AND THE ANTICIPATED EFFECTIVENESS OF THE UNIT IN
MAINTAINING INDUSTRIAL PEACE THROUGH COLLECTIVE BARGAINING.  IT CAN
HARDLY BE SAID THAT THE DOMINATION OF A LABOR UNION BY AN EMPLOYER IS
IRRELEVANT TO THE QUESTION OF WHAT UNIT IS APPROPRIATE FOR THE CHOICE
OF LABOR REPRESENTATIVE, BUT CERTAINLY IT IS A COLLATERAL MATTER IN
THAT INVESTIGATION.  IT IS ONLY A FACT TO TAKE INTO CONSIDERATION.  IF
THE UNIT CHOSEN HAS AN EMPLOYER DOMINATED UNION, THE WORKERS MAY BE
GIVEN AN OPPORTUNITY TO CHOOSE REPRESENTATIVES, FREE OF THIS INFIRMITY,
AND IF THE UNION IS FREE OF EMPLOYER INFLUENCE, IT MAY BE CHOSEN AS
REPRESENTATIVE.  IN SHORT, DOMINATION PERTAINS DIRECTLY TO
REPRESENTATION BUT INFLUENCES THE CHOICE OF A UNIT ONLY CASUALLY. 
TURNING TO THE REFUSAL OF THE BOARD TO ADMIT TENDERED EVIDENCE IN THIS
CASE, THERE ARE FIVE INSTANCES ALLEGED AS ERROR.  FN18  IN THE NEXT
PRECEDING PARAGRAPH WE HAVE REFERRED TO THE FIRST, THE DESIRE OF 1500
WORKERS OUT OF 1800 IN THE CRYSTAL CITY PLANT TO HAVE THAT PLANT A
BARGAINING UNIT AND THEIR OPPOSITION TO FEDERATION REPRESENTATION. 
THIS WAS BEFORE THE BOARD.  THE PETITION OF THE CRYSTAL CITY WORKERS
WAS PRESENTED IN THE HEARING ON THE APPROPRIATE UNIT, WAS ADMITTED AND
CONSIDERED.  FN19  IT IS ENTIRELY PROPER FOR THE BOARD TO UTILIZE ITS
KNOWLEDGE OF THE DESIRES OF THE WORKERS OBTAINED IN THE PRIOR UNIT
PROCEEDING, SINCE BOTH PETITIONERS, THE EMPLOYER AND THE CRYSTAL CITY
UNION, WERE PARTIES TO THAT PRIOR PROCEEDING.  FN20  THE UNIT
PROCEEDING AND THIS COMPLAINT ON UNFAIR LABOR PRACTICES ARE REALLY
ONE.  FN21  CONSEQUENTLY THE REFUSAL TO ADMIT FURTHER EVIDENCE OF THE
ATTITUDE OF THE WORKERS IS UNIMPORTANT. 

THE SECOND OFFER REFUSED IS TO PRODUCE EVIDENCE THAT THE CRYSTAL CITY
UNION, CONTRARY TO THE PREVIOUS FINDING OF THE BOARD IN A DISTINCT
PROCEEDING IN WHICH THE UNION WAS NOT A PARTY,  FN22 IS FREE OF
EMPLOYER DOMINATION.  THE ENTRY OF THE ORDER UPON STIPULATION AND
CONSENT DOES NOT DETRACT FROM ITS FORCE.  SWIFT & CO. V. UNITED STATES,
276 U.S. 311, 327.  AS PREVIOUSLY EXPLAINED, THIS QUESTION OF
DOMINATION IS A COLLATERAL ISSUE TO THE DETERMINATION OF THE
APPROPRIATE UNIT AND WE THINK TO REFUSE TO HEAR AGAIN UPON A SUBJECT
THIS REMOTE FROM THE INQUIRY WAS WELL WITHIN THE DISCRETION OF THE
BOARD.  FN23  ON SEPTEMBER 22, 1938, THE BOARD ISSUED ITS CEASE AND
DESIST ORDER DIRECTED AGAINST "RECOGNIZING OR DEALING WITH THE UNION AS
A LABOR ORGANIZATION" AND ON JANUARY 13, 1939, ITS APPROPRIATE UNIT
ORDER.  THE FIRST ORDER IS NOT ATTACKED.  IT IS TRUE THAT THE BOARD
BASED ITS REFUSAL TO PERMIT THIS EVIDENCE PARTLY ON THE FINALITY OF THE
ORIGINAL ORDER.  BUT IT WAS OF THE VIEW THAT THE CRYSTAL CITY UNION HAD
NOT AVAILED ITSELF OF ITS CHANCE TO ENTER AN APPEARANCE OR VOLUNTARILY
INTERVENE IN THAT PROCEEDING.  FN24  THE BOARD HAD JUST BARRED THE
COMPANY FROM DOMINATING THE UNION AND CAUSED IT TO WITHDRAW RECOGNITION
FROM IT AS AN EMPLOYEE LABOR ORGANIZATION.  AT THE HEARING ON THE
APPROPRIATE UNIT, AT WHICH ALL PARTIES HERE WERE REPRESENTED AND TOOK
ACTIVE PART, FULL INVESTIGATION WAS MADE OF THE RELEVANT CRITERIA TO
DETERMINE THE APPROPRIATE BARGAINING UNIT.  THE HISTORY OF THE
FEDERATION WAS APPRAISED, ITS EFFORTS AT DIVISION-WIDE COLLECTIVE
BARGAINING, THE OPPOSITION OF CRYSTAL CITY EMPLOYEES TO THE FEDERATION
AND THE CHARACTERISTICS OF THE VARIOUS PLANTS.  THESE ARE FACTORS WHICH
THE BOARD THOUGHT DETERMINATIVE OF THE APPROPRIATE UNIT.  WHETHER THE
UNION WAS DOMINATED BY THE EMPLOYER OR NOT WAS NOT STRESSED IN FIXING
THE UNIT.  COUNSEL FOR THE UNION STATED HIS POSITION AT THE UNIT
HEARING AS FOLLOWS: 

"I WANT TO MAKE A STATEMENT INASMUCH AS COUNSEL FOR THE FEDERATION OF
FLAT GLASS WORKERS HAS MADE HIS STATEMENT.  VERY BRIEFLY I WANT TO
STATE THE POSITION OF THE CRYSTAL CITY GLASS WORKERS' UNION.  WHEN THE
FIRST STATEMENT WAS MADE BY COUNSEL, IT WAS APPARENT THAT THIS
PROCEEDING IS GOING TO REVOLVE ABOUT THE CRYSTAL CITY PLANT, WHICH IS
PITTSBURGH PLATE GLASS COMPANY PLANT NO. 9.  WE EXPECT TO SHOW ON
BEHALF OF PLANT NO. 9 THAT APPROXIMATELY 1,300 OUT OF THE TOTAL OF
1,600 EMPLOYEES ARE MEMBERS OF THE CRYSTAL CITY GLASS WORKERS' UNION. 
WE EXPECT TO SHOW THAT WITH REFERENCE TO THE INTEGRATION AT THE PLANT
THE CONDITIONS ARE ENTIRELY DIFFERENT, THEY ARE VERY DIFFERENT IN
CRYSTAL CITY THAN IN ANY OTHER PLANT.  WE EXPECT TO SHOW THAT THERE ARE
CERTAIN DISTINCT FEATURES WITH REFERENCE TO THE CRYSTAL CITY PLANT THAT
DO NOT EXIST AT ANY OTHER PLANT. 

"WE EXPECT TO SHOW FURTHER THAT COMMUNITY CONDITIONS DIFFER ENTIRELY
AT CRYSTAL CITY FROM WHAT THEY ARE AT ANY OTHER PLANT. 

"WE EXPECT TO SHOW THAT THE SOCIAL STATUS, THE ECONOMIC STATUS AND
THE COMMUNITY STATUS IN GENERAL OF THE EMPLOYEES WHO WORK IN THE
CRYSTAL CITY PLANT IS ENTIRELY DIFFERENT THAN IT IS IN ANY OTHER PLANT
OF THE PITTSBURGH PLATE GLASS COMPANY. 

"IF WE SHOW THOSE THINGS WE FEEL THAT THE PROPER UNIT FOR THE CRYSTAL
CITY PLANT IS THE PLANT UNIT BECAUSE OF THE CONDITIONS THAT I HAVE
MENTIONED, AND IF ANY OTHER ORGANIZATION WITH ANY OTHER UNIT WAS
RECOGNIZED AT THAT PLANT, IT WOULD DEFEAT THE PURPOSE OF THE ACT." 

EACH OF THESE POINTS WAS FULLY COVERED BY THE EVIDENCE BEFORE THE
BOARD ON THE UNIT HEARING, WITH THE RESULT THAT THE CRYSTAL CITY UNION
RECEIVED A FULL AND COMPLETE HEARING ON EVERY PROPOSITION COVERED BY
THE STATEMENT. 

THE REFUSAL TO RECONSIDER THE ISSUE OF DOMINATION IN THE PRESENT
UNFAIR LABOR PRACTICE HEARING ACCORDS, IN OUR VIEW, WITH THE BOARD'S
DISCRETIONARY POWERS. 

THE OTHER THREE INSTANCES MAY BE LISTED IN THE LANGUAGE OF THE BOARD,
ADOPTED BY PETITIONERS, AS FOLLOWS:  (3) THAT THE EMPLOYEES AT THE
CRYSTAL CITY PLANT HAD DISTINCT INTERESTS FROM EMPLOYEES AT THE
COMPANY'S OTHER PLANTS; (4) THAT THE CRYSTAL CITY UNION HAD BARGAINED
COLLECTIVELY WITH THE COMPANY FOR ITS MEMBERS UNTIL THE COMPANY REFUSED
TO CONTINUE SUCH BARGAINING BECAUSE OF THE CHARGES FILED AGAINST IT BY
THE FEDERATION; AND (5) THAT SINCE THE STIPULATION OF JULY 22, 1938,
WAS ENTERED INTO BY THE BOARD, THE COMPANY AND THE FEDERATION, AND
SINCE THE BOARD'S DECISION OF JANUARY 13, 1939, THE MEMBERSHIP OF THE
CRYSTAL CITY UNION HAD INCREASED. 

WITH RESPECT TO ITEM (3), THE DISTINCT INTERESTS OF THE CRYSTAL CITY
EMPLOYEES, THE BOARD RULED THAT IN THE UNIT PROCEEDING THE COMPANY AND
THE CRYSTAL CITY UNION WERE GIVEN FULL OPPORTUNITY TO PRESENT SUCH
EVIDENCE, AND IN THE PRESENT PROCEEDING NEITHER OF THEM HAD INDICATED
THAT THE PROOF SOUGHT TO BE ADMITTED RELATED TO EVIDENCE UNAVAILABLE
AT, DISCOVERED SINCE, OR NOT INTROTRODUCED IN, THE UNIT HEARING.  THE
FULL JUSTIFICATION FOR THIS RULING BY THE BOARD BECOMES CLEAR ONLY
AFTER AN EXAMINATION OF THE RECORD IN THE UNIT PROCEEDING, WHICH UNDER
SEC. 9(D) OF THE ACT IS PART OF THE RECORD HERE. 

THE CRYSTAL CITY UNION APPEARED AT THE UNIT PROCEEDING; IT
PARTICIPATED IN THE HEARINGS; IT CALLED WITNESSES, AND CROSS-EXAMINED
THOSE CALLED BY THE OTHER PARTIES.  A GREAT DEAL OF THE HEARING WAS
TAKEN UP BY TESTIMONY DESIGNED TO BRING OUT ANY INTERESTS OF THE
CRYSTAL CITY WORKERS THAT MIGHT BE DISTINCT FROM THOSE OF EMPLOYEES AT
OTHER PLANTS.  THUS THERE WAS ABUNDANT TESTIMONY WITH RESPECT TO THEIR
RACIAL ORIGINS, THEIR AGRICULTURAL SURROUNDINGS, THEIR INCLINATION OR
DISINCLINATION TO VISIT CITIES, THEIR LACK OF A "UNION" BACKGROUND,
THEIR RECREATIONAL HABITS, ETC.  THERE WAS ALSO A THOROUGH CANVASSING
OF ALL THE DETAILS IN WHICH THE PROCESSES OF PRODUCTION AND THE WORKING
CONDITIONS AT CRYSTAL CITY DIVERGED FROM THOSE AT THE OTHER PLANTS.  IF
THE COMPANY OR THE CRYSTAL CITY UNION DESIRED TO RELITIGATE THIS ISSUE,
IT WAS UP TO THEM TO INDICATE IN SOME WAY THAT THE EVIDENCE THEY WISHED
TO OFFER WAS MORE THAN CUMULATIVE.  NOTHING MORE APPEARING, A SINGLE
TRIAL OF THE ISSUE WAS ENOUGH. 

AS TO (4), COLLECTIVE BARGAINING BY THE CRYSTAL CITY UNION, AND (5),
THAT UNION'S GROWING MEMBERSHIP AT CRYSTAL CITY, THE BOARD SAID: 

"ACCEPTING THE FOREGOING OFFER OF PROOF AS CORRECTLY STATING THE
FACTS, NEVERTHELESS, IN VIEW OF THE PROCEEDINGS AGAINST THE RESPONDENT
CULMINATING IN THE COURT DECREE OF JANUARY 14, 1939, NEGOTIATIONS
BETWEEN THE RESPONDENT AND THE CRYSTAL CITY UNION CANNOT BE REGARDED BY
THE BOARD AS EVIDENCE OF GENUINE COLLECTIVE BARGAINING; NOR CAN THE
CRYSTAL CITY UNION'S MEMBERSHIP AND REPRESENTATION OF EMPLOYEES AT THE
CRYSTAL CITY PLANT BE CONSIDERED BY THE BOARD AS EXPRESSING THE FREE
CHOICE OF THE EMPLOYEES AT THAT PLANT OR AS ESTABLISHING THE EXISTENCE
OF ANOTHER LABOR ORGANIZATION, IN ADDITION TO THE FEDERATION, CAPABLE
OF BARGAINING COLLECTIVELY WITH THE RESPONDENT FOR THE EMPLOYEES
THERE."  FN25  THE FACT THAT THE LOCAL UNION HAD UNDERTAKEN
NEGOTIATIONS WITH THE EMPLOYER OR THAT IT HAD GROWN IN NUMBERS WOULD BE
OF SLIGHT PROBATIVE VALUE IN A PROCEEDING TO DETERMINE THE BARGAINING
UNIT.  THE BOARD MIGHT PROPERLY SAY AS IT DID THAT ACCEPTING THE OFFERS
OF PROOF IT WOULD NOT ALTER THE DETERMINATION OF THE APPROPRIATE UNIT. 

FURTHER, IF WE CONSIDER ALL THE CONTENTIONS ABOUT EXCLUSION OF
EVIDENCE TOGETHER INSTEAD OF SEPARATELY, WE DO NOT FIND THAT IN THE
AGGREGATE THE EVIDENCE EXCLUDED COULD HAVE MATERIALLY AFFECTED THE
OUTCOME ON THE "APPROPRIATE UNIT" ISSUE, IN THE LIGHT OF THE CRITERIA
BY WHICH THE BOARD DETERMINED THAT ISSUE. 

SECOND.  PETITIONERS COMPLAIN THAT THE RECORD CONTAINS NO EVIDENCE TO
SUPPORT CERTAIN ESSENTIAL FINDINGS.  ONE OF THESE IS THE FINDING IN
REGARD TO THE HISTORY OF COLLECTIVE BARGAINING.  THE BOARD DETERMINED
THAT THE FEDERATION AFTER 1934 AND UNTIL 1937 HELD WRITTEN LABOR
AGREEMENTS COVERING THEIR MEMBERS IN ALL THE PLANTS OF THE COMPANY,
INCLUDING CRYSTAL CITY: 

"NOT UNTIL JANUARY 20, 1937, DID THE COMPANY FOR THE FIRST TIME
INSIST THAT CRYSTAL CITY BE EXCLUDED FROM THE AGREEMENT BETWEEN IT AND
THE FEDERATION ON THE GROUND THAT THE FEDERATION DID NOT HAVE AS
MEMBERS A MAJORITY OF THE EMPLOYEES AT THIS PLANT.  THE WRITTEN
AGREEMENT SIGNED ON THAT DAY, AT THE INSISTENCE OF THE COMPANY, DESPITE
THE FEDERATION'S OBJECTIONS, DID NOT COVER THE FEDERATION MEMBERS AT
CRYSTAL CITY."  FN26  THE BOARD THOUGHT THE EVIDENCE JUSTIFIED THE
CONCLUSION THAT THE FEDERATION HAD SOUGHT AND SOMETIMES SUCCEEDED IN
ORGANIZING THE COMPANY ON A "DIVISION-WIDE" BASIS.  AN EXAMINATION OF
THE CONTRACTS SHOWS THAT THREE WERE ENTERED INTO WITH THE FEDERATION
BETWEEN 1934 AND 1937, ALL THREE OF WHICH RECOGNIZED OBLIGATIONS
TOWARDS "EMPLOYEES WHO ARE MEMBERS OF THE FEDERATION OF FLAT GLASS
WORKERS OF AMERICA."  ANOTHER GRANTED A FIVE PER CENT WAGE INCREASE "IN
ALL PLATE AND SAFETY GLASS PLANTS."  THIS INCLUDED CRYSTAL CITY.  THERE
WAS TESTIMONY THAT ALL PLANTS WERE COVERED AND TESTIMONY BY PETITIONERS
THAT THE CRYSTAL CITY PLANT WAS NOT COVERED.  THERE WERE CERTAIN
PROVISIONS APPLICABLE ONLY WHERE A PLANT HAD A LOCAL UNION.  THERE WAS
NONE AT CRYSTAL CITY.  THE EVIDENCE, WE CONCLUDE, JUSTIFIES THE BOARD'S
FINDING THAT CONTRACTS WERE SIGNED ON A DIVISION-WIDE BASIS.  CERTAINLY
THE EXPRESS EXCLUSION OF CRYSTAL CITY EMPLOYEES IN THE 1937 CONTRACT ON
THE EMPLOYER'S DEMAND SHOWS AN ENDEAVOR TO ORGANIZE ON THAT BASIS. 

PETITIONERS FIND FAILURE OF EVIDENCE TO ESTABLISH THE APPROPRIATENESS
OF THE DIVISION-WIDE UNIT.  IT IS TRUE THE RECORD SHOWS A SUBSTANTIAL
DEGREE OF LOCAL AUTONOMY.  CRYSTAL CITY IS A SEPARATE INDUSTRIAL UNIT,
NOT ONE MECHANICALLY INTEGRATED INTO THE DIVISION.  THE LOCAL
SUPERINTENDENT DEALS WITH LABOR GRIEVANCES, THE PLANT HAS ITS OWN
PURCHASING AGENT AND THERE IS NO EXCHANGE OF EMPLOYEES.  ON THE OTHER
HAND, LABOR POLICIES AND WAGES COME FROM THE CENTRAL OFFICE IN
PITTSBURGH, THERE IS GREAT SIMILARITY IN THE CLASS OF WORK DONE. 
WAGES, HOURS, WORKING CONDITIONS, MANUFACTURING PROCESSES DIFFER ONLY
SLIGHTLY AMONG THE PLANTS.  AN INDEPENDENT UNIT AT CRYSTAL CITY, THE
BOARD WAS JUSTIFIED IN FINDING, WOULD FRUSTRATE DIVISION-WIDE EFFORT AT
LABOR ADJUSTMENTS.  IT WOULD ENABLE THE EMPLOYER TO USE THE PLANT THERE
FOR CONTINUOUS OPERATION IN CASE OF STOPPAGE OF LABOR AT THE OTHER
PLANTS.  FN27  WE ARE OF THE VIEW THAT THERE WAS ADEQUATE EVIDENCE TO
SUPPORT THE CONCLUSION THAT THE BARGAINING UNIT SHOULD BE DIVISION
WIDE. 

THIRD. FINALLY PETITIONERS URGE THAT THE STANDARDS FOR BOARD ACTION
AS TO THE APPROPRIATE UNIT ARE INADEQUATE TO GIVE A GUIDE TO THE
ADMINISTRATIVE ACTION AND THE RESULT IS NECESSARILY CAPRICIOUS,
ARBITRARY AND AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER.  WE
FIND ADEQUATE STANDARDS TO GUIDE THE BOARD'S DECISION.  WHILE THE EXACT
LIMITS OF THE BOARD'S POWERS OR THE PRECISE MEANING OF THE TERMS HAVE
NOT BEEN FULLY DEFINED, JUDICIALLY, WE KNOW THAT THEY LIE WITHIN THE
AREA COVERED BY THE WORDS "EMPLOYER," "PLANT," AND "CRAFT."  FN28  THE
DIVISION-WIDE UNIT HERE DEEMED APPROPRIATE IS WELL WITHIN THESE
LIMITS.  AS A STANDARD, THE BOARD MUST COMPLY, ALSO, WITH THE
REQUIREMENT THAT THE UNIT SELECTED MUST BE ONE TO EFFECTUATE THE POLICY
OF THE ACT, THE POLICY OF EFFICIENT COLLECTIVE BARGAINING.  WHERE THE
POLICY OF AN ACT IS SO DEFINITELY AND ELABORATELY STATED, THIS
REQUIREMENT ACTS AS A PERMITTED MEASURE OF DELEGATED AUTHORITY.  FN29
AFFIRMED. 

FN1 CERTIORARIS GRANTED, 311 U.S. 642. 

FN2  49 STAT. 449. 

FN3  THE DIVISION ALSO INCLUDES TWO SMALL PLANTS WITH 65 EMPLOYEES AT
KOKOMO AND ELWOOD, INDIANA.  THE WORK DONE AT THESE PLANTS IS NOT
SIMILAR TO THAT AT ANY OF THE SIX REFERRED TO, AND NONE OF THE PARTIES
CONTENDED THAT THEY SHOULD BE INCLUDED IN THE UNIT.  ACCORDINGLY, THE
BOARD EXCLUDED THEM. 

FN4  THE COMPLAINT ALSO ALLEGED CERTAIN UNLAWFUL DISCRIMINATIONS IN
REGARD TO HIRE AND TENURE, AND OTHER INTERFERENCES WITH THE EMPLOYEES'
RIGHT OF SELF-ORGANIZATION. 

FN5  102 F.2D 1004, ENFORCING 8 N.L.R.B. 1210. 

FN6  10 N.L.R.B. 1111. 

FN7  308 U.S. 401. 

FN8  15 N.L.R.B. 515. 

FN9  113 F.2D 698. 

FN10  49 STAT. 453: 

"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 PRUPOSES, 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:  PROVIDED, THAT ANY
INDIVIDUAL EMPLOYEE OR A GROUP OF EMPLOYEES SHALL HAVE THE RIGHT AT ANY
TIME TO PRESENT GRIEVANCES TO THEIR EMPLOYER.    "(B)  THE BOARD SHALL
DECIDE IN EACH CASE WHETHER, IN ORDER TO INSURE TO EMPLOYEES THE FULL
BENEFIT OF THEIR RIGHT TO SELF-ORGANIZATION AND TO COLLECTIVE
BARGAINING, AND OTHERWISE TO EFFECTUATE THE POLICIES OF THIS ACT, THE
UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE BARGAINING SHALL BE THE
EMPLOYER UNIT, CRAFT UNIT, PLANT UNIT, OR SUBDIVISION THEREOF." 

FN11  SEC. 7.    FN12  FOURTH ANNUAL REPORT (1939) 89-90.  SEE ALSO
FIRST ANNUAL REPORT (1936) 112-20; SECOND ANNUAL REPORT (1937) 122-40;
THIRD ANNUAL REPORT (1938) 156-97; FIFTH ANNUAL REPORT (1940) 63-72. 

FN13  AMERICAN FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. 401, 408
411. 

FN14  SEC. 10(E) AND (F); CONSOLIDATED EDISON CO. V. LABOR BOARD, 305
U.S. 197, 226. 

FN15  102 F.2D 1004. 

FN16  LABOR BOARD V. GREYHOUND LINES, 303 U.S. 261, 271; NATIONAL
LICORICE CO. V. LABOR BOARD, 309 U.S. 350, 365. 

FN17  NATIONAL LICORICE CO. V. LABOR BOARD, SUPRA, 364. 

FN18  15 N.L.R.B. AT 518. 

FN19  THE PETITION WAS ADMITTED AFTER THE FOLLOWING COLLOQUY: 

"MR. HOLMES.  WE CERTAINLY OBJECT TO THE INTRODUCTION OF A PETITION
OF THAT KIND IN EVIDENCE, BEING IRRELEVANT, NOT PROPER TO SHOW THE
WISHES OF THE INDIVIDUAL EMPLOYEES OR MEMBERS OF THIS CLAIMED UNION AT
CRYSTAL CITY.  IT HAS NO PLACE AT THIS HEARING, IT IS NOT PROPER
EVIDENCE. 

"MR. BUCHANAN.  WE ASK FOR THE RECORDS. 

"TRIAL EXAMINER DUDLEY.  I WILL ADMIT THE EXHIBITS FOR SUCH WEIGHT AS
IT MAY HAVE." 

IN ITS OPINION ON THE APPROPRIATE UNIT THE BOARD SAID (10 N.L.R.B. AT
1118): 

"MOREOVER, THE PRIOR EXISTENCE OF THE CRYSTAL CITY UNION FOR OVER 3
YEARS, UNTIL ALMOST THE DAY OF THE HEARING IN THIS PROCEEDING, TO A
LARGE DEGREE EXPLAINS THE DESIRE OF THE 1,300 CRYSTAL CITY EMPLOYEES
FOR A SEPARATE BARGAINING UNIT, AS EXPRESSED IN THEIR PETITION, AND
SUCH DESIRES MAY WELL UNDERGO A RADICAL CHANGE AS THE EFFECT OF THE
TERMINATION OF THE CRYSTAL CITY UNION'S FUNCTION AS A LABOR
ORGANIZATION IS FULLY REALIZED BY THESE EMPLOYEES." 

IN ITS OPINION ON THE REFUSAL TO BARGAIN (15 N.L.R.B. AT 523): 

"IN SO FAR AS THIS EVIDENCE CAN BE ASSUMED TO SHOW OPPOSITION AMONG
THE CRYSTAL CITY PLANT EMPLOYEES TO THE FEDERATION, THE BOARD'S
DECISION OF JANUARY 13, 1939, CONSIDERED SUCH ARGUMENTS BY THE
RESPONDENT AND THE CRYSTAL CITY UNION.  WE SEE NO REASON TO ALTER OUR
DETERMINATION THERE SET FORTH." 

FN20  CF. FINAL REPORT OF THE ATTORNEY GENERAL'S COMMITTEE ON
ADMINISTRATIVE PROCEDURE, P. 70. 

FN21  49 STAT. 453, SEC. 9: 

"(C)  WHENEVER A QUESTION AFFECTING COMMERCE ARISES CONCERNING THE
REPRESENTATION OF EMPLOYEES, THE BOARD MAY INVESTIGATE SUCH CONTROVERSY
AND CERTIFY TO THE PARTIES, IN WRITING, THE NAME OR NAMES OF THE
REPRESENTATIVES THAT HAVE BEEN DESIGNATED OR SELECTED.  IN ANY SUCH
INVESTIGATION, THE BOARD SHALL PROVIDE FOR AN APPROPRIATE HEARING UPON
DUE NOTICE, EITHER IN CONJUNCTION WITH A PROCEEDING UNDER SECTION 10 OR
OTHERWISE, AND MAY TAKE A SECRET BALLOT OF EMPLOYEES, OR UTILIZE ANY
OTHER SUITABLE METHOD TO ASCERTAIN SUCH REPRESENTATIVES. 

"(D)  WHENEVER AN ORDER OF THE BOARD MADE PURSUANT TO SECTION 10(C)
IS BASED IN WHOLE OR IN PART UPON FACTS CERTIFIED FOLLOWING AN
INVESTIGATION PURSUANT TO SUBSECTION (C) OF THIS SECTION, AND THERE IS
A PETITION FOR THE ENFORCEMENT OR REVIEW OF SUCH ORDER, SUCH
CERTIFICATION AND THE RECORD OF SUCH INVESTIGATION SHALL BE INCLUDED IN
THE TRANSCRIPT OF THE ENTIRE RECORD REQUIRED TO BE FILED UNDER
SUBSECTIONS 10(E) OR 10(F), AND THEREUPON THE DECREE OF THE COURT
ENFORCING, MODIFYING, OR SETTING ASIDE IN WHOLE OR IN PART THE ORDER OF
THE BOARD SHALL BE MADE AND ENTERED UPON THE PLEADINGS, TESTIMONY, AND
PROCEEDINGS SET FORTH IN SUCH TRANSCRIPT." 

OF COMPLAINTS ALLEGING UNFAIR LABOR PRACTICES BY EMPLOYERS.  IT
REQUIRES A WRITTEN RECORD OF THE HEARING.  SECTIONS 10(E) AND 10(F)
GIVE THE RIGHT OF JUDICIAL ENFORCEMENT AND REVIEW OF THE BOARD'S ORDERS
ON SUCH COMPLAINTS TO THE CIRCUIT COURTS OF APPEALS ON PETITION OF THE
BOARD OR ANY PERSON AGGRIEVED BY THE ORDER. 

FN22  8 N.L.R.B. 1210.  AFTER STIPULATION THE FOLLOWING EXCERPTS
BECAME PART OF THE BOARD'S ORDER: 

THE COMPANY SHALL 

"1.  CEASE AND DESIST: 

"(A)  FROM SUCH UNFAIR LABOR PRACTICES AS HAVE OCCURRED IN THE PAST;
... 

"(H)  FROM IN ANY MANNER DOMINATING OR INTERFERING WITH THE
ADMINISTRATION OF THE CRYSTAL CITY GLASS WORKERS' UNION OR ANY OTHER
ORGANIZATION OF ITS EMPLOYEES, OR CONTRIBUTING AID OR SUPPORT TO SAID
ORGANIZATION, OR ANY OTHER LABOR ORGANIZATION OF ITS EMPLOYEES; FROM
RECOGNIZING OR DEALING WITH THE CRYSTAL CITY GLASS WORKERS' UNION AS A
LABOR ORGANIZATION, OR ANY PERSON OR GROUP OF PERSONS PURPORTING TO
REPRESENT SAID ORGANIZATION. 

"2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH THE BOARD FINDS WILL
EFFECTUATE THE POLICIES OF THE ACT: 

"(A)  WITHDRAW ALL RECOGNITION FROM THE CRYSTAL CITY GLASS WORKERS'
UNION AS THE REPRESENTATIVE OF THE RESPONDENT'S EMPLOYEES, OR ANY OF
THEM, AS A LABOR ORGANIZATION, AND NOTIFY SAID ORGANIZATION TO THAT
EFFECT; ...  " 

FN23  UNITED STATES V. SOCONY-VACUUM OIL CO., 310 U.S. 150, 228;
TENNESSEE POWER CO. V. T.V.A., 306 U.S. 118, 145. 

FN24  15 N.L.R.B. AT 519, N. 4. 

FN25  15 N.L.R.B. AT 523. 

FN26  10 N.L.R.B. AT 1117. 

FN27  WITH REFERENCE TO THE SHIFTING OF ORDERS, THE HEAD OF THE
COMPANY'S FLAT GLASS DIVISION TESTIFIED: 

"Q.  THERE IS SOME TESTIMONY FROM YOU ABOUT STRIKES.  I DON'T KNOW HOW
LONG.  DURING THAT TIME I THINK YOU SAID THESE PLANTS WERE SHUT DOWN
EXCEPT THE CRYSTAL CITY PLANT; IS THAT CORRECT? 

A. THAT IS RIGHT. 

Q. AND DURING THE TIME OF THE STRIKE, DID YOU FILL ORDERS FROM THE
CRYSTAL CITY PLANT THAT YOU WOULD NORMALLY HAVE FILLED FROM THE OTHER
PLANTS? 

A. YES. 

Q. AND YOU FOUND THAT YOU COULD SUCCESSFULLY TRANSFER THE ORDERS FROM
CREIGHTON AND FORD CITY? 

A. THERE IS NO DIFFERENCE IN THE KIND OF ORDERS THEY WORK ON.  THEY
MAY BE WORKING AT TIMES ON THE SAME PATTERN FOR THE SAME AUTOMOBILE
COMPANY. 

Q. ALL YOU WOULD DO WOULD BE TO WIRE CRYSTAL CITY OR CREIGHTON? 

A. YES." 

FN28  SEC. 9(B).  CF. FIFTH ANNUAL REPORT, N.L.R.B., V.G. 1 TO 4
INCLUSIVE. 

FN29  CF. NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287
U.S. 12, 24-25; OPP COTTON MILLS V. ADMINISTRATOR OF WAGE AND HOUR
DIVISION, 312 U.S. 126. 

CF. ALSO LABOR BOARD V. BRADFORD DYEING ASSN., 310 U.S. 318, 340;
INTERNATIONAL ASSN. OF MACHINISTS V. LABOR BOARD, 311 U.S. 72; AMERICAN
FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. 401.  SECTION 9(B) IS
TREATED AS VALID IN THESE CASES. 

MR. JUSTICE STONE: 

I THINK THE JUDGMENT BELOW SHOULD BE REVERSED. 

THE BOARD'S ORDER, SO FAR AS IT DIRECTS PETITIONER, THE GLASS
COMPANY, TO RECOGNIZE AND BARGAIN WITH RESPONDENT FEDERATION AS THE
REPRESENTATIVE OF THE COMPANY'S EMPLOYEES AT ITS CRYSTAL CITY PLANT,
CANNOT BE SUSTAINED UNLESS THE BOARD'S CERTIFICATION OF THE FEDERATION
AS THE APPROPRIATE BARGAINING AGENCY FOR THOSE EMPLOYEES IS UPHELD.  I
THINK THAT BOTH SHOULD BE SET ASIDE BECAUSE OF THE BOARD'S FAILURE IN
THOSE PROCEEDINGS TO AFFORD TO PETITIONER, CRYSTAL CITY GLASS WORKERS'
UNION, AN "APPROPRIATE HEARING," AND ITS FAILURE TO DETERMINE THE
UNFAIR LABOR PRACTICE ISSUE ON THE EVIDENCE, BOTH OF WHICH, TO SAY
NOTHING OF CONSTITUTIONAL REQUIREMENTS, ARE COMMANDED BY SECS. 9(C) AND
10(C) OF THE NATIONAL LABOR RELATIONS ACT. 

THE FEDERATION, AFFILIATED WITH THE C.I.O., HAS ORGANIZED LOCAL
UNIONS AT EACH OF THE COMPANY'S SIX PLANTS EXCEPT THAT AT CRYSTAL CITY,
WHOSE EMPLOYEES, SOME 1600 IN NUMBER, HAVE BEEN ORGANIZED BY THE
UNION.  THE COMPANY HAS RECOGNIZED AND BARGAINED WITH THE FEDERATION AS
THE REPRESENTATIVE OF ITS EMPLOYEES AT ALL EXCEPT ITS CRYSTAL CITY
PLANT.  IN 1934 IT ENTERED INTO A WRITTEN CONTRACT WITH THE FEDERATION
WHICH PROVIDED A METHOD OF SETTLING GRIEVANCES OF EMPLOYEES AT ALL ITS
PLANTS, THROUGH LOCAL UNIONS OF THE FEDERATION.  THESE PROVISIONS WERE
RENEWED IN 1935 BUT AS THE EFFORTS OF THE FEDERATION TO ORGANIZE A
LOCAL UNION AT CRYSTAL CITY, BEGUN IN 1933 AND CONTINUED ACTIVELY
DURING 1937 AND SINCE, HAVE NEVER SUCCEEDED, THOSE PROVISIONS HAVE
REMAINED INOPERATIVE AT CRYSTAL CITY.  THE RENEWAL CONTRACT WITH THE
FEDERATION IN 1937, WHICH IS STILL IN FORCE, DOES NOT INCLUDE THE
CRYSTAL CITY PLANT. 

THE UNION WAS INCORPORATED IN 1938.  IN APRIL IT ORGANIZED THE
EMPLOYEES AT THE CRYSTAL CITY PLANT AND IN THE FOLLOWING MONTH THE
BOARD, ON PETITION OF THE FEDERATION, INSTITUTED THE CERTIFICATION
PROCEEDING NOW BEFORE US.  IN JUNE OF THAT YEAR THE BOARD ISSUED ITS
COMPLAINT, CHARGING THE COMPANY WITH UNFAIR LABOR PRACTICES,
SPECIFICALLY ALLEGING THAT IT HAD "DOMINATED AND INTERFERED WITH THE
FORMATION AND ADMINISTRATION" OF THE UNION.  THE COMPANY ANSWERED
DENYING THE ALLEGATION.  THE UNION WAS NOT A PARTY TO THE PROCEEDING
AND SO FAR AS APPEARS HAD NO KNOWLEDGE OF IT.  THE BOARD, WITHOUT
TAKING ANY EVIDENCE AND WITHOUT MAKING ANY FINDING OF AN UNFAIR LABOR
PRACTICE, WHICH IS PREREQUISITE TO AN ORDER UNDER SEC. 10(C), MADE ITS
ORDER, ON CONSENT OF THE COMPANY, DIRECTING IT TO CEASE AND DESIST FROM
"IN ANY MANNER DOMINATING OR INTERFERING WITH THE ADMINISTRATION" OF
THE UNION, OR "CONTRIBUTING AID OR SUPPORT" TO IT AND "FROM RECOGNIZING
OR DEALING WITH IT."  THE USUAL PROVISION DISESTABLISHING THE UNION WAS
OMITTED FROM THE ORDER. 

AS SOON AS THE BOARD HAD MADE THIS ORDER IT PROCEEDED WITH HEARINGS
IN THE CERTIFICATION PROCEEDING IN WHICH BOTH THE FEDERATION AND THE
UNION PARTICIPATED AND IN WHICH THE BOARD CERTIFIED THE FEDERATION AS
THE APPROPRIATE BARGAINING AGENCY FOR THE EMPLOYEES IN ALL SIX OF THE
COMPANY'S PLANTS. 

UPON THE REFUSAL OF THE COMPANY TO RECOGNIZE THE FEDERATION AS THE
AGENT OF ITS EMPLOYEES AT CRYSTAL CITY, THE BOARD, ON COMPLAINT OF THE
FEDERATION, BEGAN THE PRESENT UNFAIR LABOR PRACTICE PROCEEDING AGAINST
THE COMPANY.  AN AGREEMENT WAS THEN ENTERED INTO BETWEEN THE COMPANY
AND THE FEDERATION THAT THE EXISTING BARGAINING CONTRACT WITH THE
FEDERATION, WHICH DID NOT INCLUDE CRYSTAL CITY, SHOULD REMAIN IN FORCE
PENDING A FINAL DETERMINATION OF THE APPROPRIATE BARGAINING UNIT FOR
CRYSTAL CITY. 

IN THE PRESENT UNFAIR LABOR PRACTICE PROCEEDING THE BOARD
RECONSIDERED AND HEARD EVIDENCE ON THE QUESTION OF THE APPROPRIATE
UNIT.  IN THE COURSE OF THE HEARINGS BOTH THE UNION AND THE COMPANY
OFFERED TO PROVE:  (1) THAT 1500 OUT OF THE 1800 EMPLOYEES AT CRYSTAL
CITY BELONGED TO THE UNION AND THAT THESE MEMBERS WERE OPPOSED TO BEING
REPRESENTED BY THE FEDERATION; (2) THAT THE UNION WAS NOT DOMINATED BY
NOR HAD ITS FORMATION OR ADMINISTRATION BEEN INTERFERED WITH BY THE
COMPANY AND THAT THE COMPANY HAD NOT CONTRIBUTED TO ITS FINANCIAL OR
OTHER SUPPORT; (3) THAT THE EMPLOYEES AT CRYSTAL CITY HAD DISTINCT
INTERESTS FROM THOSE AT THE OTHER PLANTS OF THE COMPANY; (4) THAT THE
REPRESENTATIVES OF THE UNION HAD BARGAINED COLLECTIVELY FOR ITS MEMBERS
WITH THE COMPANY UNTIL THE COMPANY DECLINED TO CONTINUE SUCH BARGAINING
BY REASON OF THE CONSENT ORDER OF SEPTEMBER, 1938, WHICH THE BOARD HAD
ENTERED AGAINST IT, TO WHICH ORDER AND PROCEEDINGS LEADING TO IT THE
UNION WAS NOT A PARTY; AND (5) THAT SINCE THE ORDER WAS MADE AND SINCE
THE CERTIFICATION OF THE FEDERATION AS THE REPRESENTATIVE FOR
COLLECTIVE BARGAINING OF ALL THE EMPLOYEES THE MEMBERSHIP IN THE UNION
HAD INCREASED. 

ALL OF THESE OFFERS WERE REJECTED AND THE PROFFERED EVIDENCE WAS
EXCLUDED.  THE BOARD REAFFIRMED ITS FINDING IN THE CERTIFICATION
PROCEEDING THAT THE FEDERATION WAS THE APPROPRIATE BARGAINING AGENCY
AND MADE ITS ORDER DIRECTING THE COMPANY TO BARGAIN WITH THE
FEDERATION. 

ONE MEMBER OF THE BOARD, MR. LEISERSON, DISSENTED, ON THE GROUND THAT
THE BOARD'S DECISION WAS BASED UPON AN ASSUMPTION THAT THE CRYSTAL CITY
EMPLOYEES WERE INCAPABLE OF MAKING A FREE CHOICE OF REPRESENTATIVES AND
THAT THE BOARD'S ORDER IMPOSED ON THE EMPLOYEES AT THAT PLANT A
REPRESENTATIVE NOT OF THEIR OWN CHOOSING WITHOUT ANY OPPORTUNITY TO
EXPRESS THEIR OWN CHOICE AS TO REPRESENTATION, AND THAT IT DISREGARDED
THE HISTORY OF THE BARGAINING BY THE COMPANY WITH THE EMPLOYEES AT THE
CRYSTAL CITY PLANT AND ITS EXISTING CONTRACT WITH THE FEDERATION WHICH
EXCLUDED THE CRYSTAL CITY PLANT FROM ITS OPERATION. 

THROUGHOUT THE CERTIFICATION AND THE LATER UNFAIR LABOR PRACTICE
PROCEEDINGS THE BOARD TOOK THE POSITION THAT THE UNION AND THE GLASS
COMPANY, BECAUSE OF THE CONSENT ORDER AGAINST THE COMPANY, WERE NO
LONGER FREE TO URGE THE WISHES OF THE UNION MEMBERS AS TO
REPRESENTATION OR TO SHOW THE ACTUAL BARGAINING RELATION BETWEEN THE
UNION AND THE COMPANY OR THAT THE COMPANY DID NOT IN FACT DOMINATE THE
UNION.  IN THE CERTIFICATION PROCEEDING THE BOARD STATED THAT THE
UNION, BY REASON OF THE CONSENT ORDER, HAD "CEASED TO BE ABLE TO
FUNCTION AS A LABOR ORGANIZATION AND ITS EXISTENCE AS SUCH AT CRYSTAL
CITY THEN TERMINATED" AND THAT "SINCE THE CRYSTAL CITY UNION CAN NO
LONGER FUNCTION AS A LABOR ORGANIZATION, ITS WISHES ARE IMMATERIAL." 

IN REVIEWING THE EVIDENCE IN THE UNFAIR LABOR PRACTICE PROCEEDING THE
BOARD ADHERED TO ITS VIEW THAT THE UNION BY REASON OF THE CONSENT ORDER
MUST BE TREATED BY IT AS DOMINATED BY THE COMPANY AND THAT FOR THAT
REASON THE PROFFERED AND REJECTED EVIDENCE ON THIS POINT WAS WITHOUT
WEIGHT, AND THAT ACCORDINGLY IT MUST BE TAKEN THAT THERE NEVER HAD BEEN
A "GENUINE AND LEGITIMATE ATTEMPT BY THE CRYSTAL CITY EMPLOYEES TO
BARGAIN WITH THE COMPANY SEPARATELY FROM THE OTHER PLANTS."    A
SUBSTANTIAL PART OF THE BOARD'S FINDINGS IN BOTH PROCEEDINGS IS DEVOTED
TO THE INFERENCES JUSTIFYING ITS CONCLUSION AS TO THE APPROPRIATE UNIT,
WHICH IT DREW FROM THIS SO-CALLED FINDING OF DOMINATION DERIVED WHOLLY
FROM THE CONSENT ORDER.  IT FOUND THAT THE WISHES OF THE UNION WERE
IMMATERIAL SINCE, UNDER THE ORDER, IT COULD NO LONGER FUNCTION AS A
LABOR ORGANIZATION.  IT STATED THAT THE EXISTENCE OF THE UNION FOR MORE
THAN THREE YEARS "TO A LARGE DEGREE EXPLAINS THE DESIRE OF THE 1300
CRYSTAL CITY EMPLOYEES FOR A SEPARATE BARGAINING UNIT, AS EXPRESSED IN
THEIR PETITION, AND SUCH DESIRES MAY WELL UNDERGO A RADICAL CHANGE AS
THE EFFECT OF THE TERMINATION OF THE CRYSTAL CITY UNION'S FUNCTION AS A
LABOR ORGANIZATION IS FULLY REALIZED BY THOSE EMPLOYEES."    IN
ADDITION THE BOARD THOUGHT THAT THE EVIDENCE OF NEGOTIATIONS BETWEEN
THE COMPANY AND THE UNION, COULD NOT BE "EVIDENCE OF GENUINE COLLECTIVE
BARGAINING"; IT FOUND THAT THE MEMBERSHIP OF THE LARGE MAJORITY OF THE
CRYSTAL CITY EMPLOYEES IN THE UNION CANNOT BE CONSIDERED "AS EXPRESSING
THE FREE CHOICE OF THE EMPLOYEES AT THAT PLANT OR AS ESTABLISHING THE
EXISTENCE OF ANOTHER LABOR ORGANIZATION, IN ADDITION TO THE FEDERATION,
CAPABLE OF BARGAINING WITH THE RESPONDENT (COMPANY) FOR THE EMPLOYEES
THERE"; AND IT DECLARED THAT ONE OF THE FACTORS LEADING TO THE
CONCLUSION "THAT THE INTERESTS OF ALL THE EMPLOYEES OF THE VARIOUS
PLANTS ARE INTERWOVEN AND THAT COLLECTIVE BARGAINING FOR ALL THE
EMPLOYEES INVOLVED CAN MOST EFFECTIVELY BE ACHIEVED THROUGH THE
ESTABLISHMENT OF A SINGLE BARGAINING UNIT," WAS "THE FACT THAT THE
MEMBERSHIP OF THE CRYSTAL CITY UNION IS COERCED AND NOT VOLUNTARY." 
THUS ON THE QUESTIONS AS TO THE DESIRES OF THE EMPLOYEES IN EACH OF THE
SIX PLANTS AND THE HISTORY OF COLLECTIVE BARGAINING THERE - BOTH
FACTORS WHICH THE BOARD HAS UNIFORMLY CONSIDERED HERETOFORE IN
DETERMINING THE PROBABLE EFFECTIVENESS OF FUTURE BARGAINING ON THE
BASIS OF A UNIT CLAIMED TO BE APPROPRIATE - THE BOARD HAS NOT ONLY
REJECTED PROFFERED EVIDENCE, ADMITTEDLY RELEVANT, BUT HAS DRAWN
CONCLUSIONS CONTRARY TO THE REJECTED EVIDENCE, FROM FACTS FOUND BY THE
BOARD TO BE TRUE, ONLY BY TREATING THE CONFLICTING EVIDENCE TENDERED BY
THE UNION AS WITHOUT WEIGHT. 

IN ORDER TO APPRAISE THE ISSUES IN THE SEVERAL PROCEEDINGS BEFORE THE
BOARD AND ITS ACTION TAKEN WITH RESPECT TO THEM, IT IS NECESSARY TO
CONSIDER THE FUNCTION WHICH THE BOARD WAS CALLED ON TO PERFORM BOTH IN
THE CERTIFICATION PROCEEDINGS AND THE UNFAIR LABOR PRACTICE PROCEEDING,
BOTH OF WHICH ARE NOW BEFORE US FOR REVIEW AS PROVIDED BY SEC. 9(D) OF
THE ACT.  SECTION 9(A) PROVIDES THAT 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 BARGAINING REPRESENTATIVES OF ALL THE EMPLOYEES IN SUCH UNIT
FOR THE PURPOSES OF COLLECTIVE BARGAINING."  AND UNDER SEC. 9(B) IT IS
THE DUTY OF THE BOARD TO "DECIDE IN EACH CASE WHETHER, IN ORDER TO
INSURE TO EMPLOYEES THE FULL BENEFIT OF THEIR RIGHT TO SELF
ORGANIZATION AND TO COLLECTIVE BARGAINING, AND OTHERWISE TO EFFECTUATE
THE POLICIES OF THIS ACT, THE UNIT APPROPRIATE FOR THE PURPOSES OF
COLLECTIVE BARGAINING SHALL BE THE EMPLOYER UNIT, CRAFT UNIT, PLANT
UNIT, OR SUBDIVISION THEREOF."  THE POLICIES OF THE ACT WHICH THE BOARD
IS TO EFFECTUATE BY ITS CHOICE OF THE PROPER BARGAINING UNIT, ARE
DECLARED BY SEC. 1 TO BE THE MITIGATION AND ELIMINATION OF OBSTRUCTIONS
TO INTERSTATE COMMERCE RESULTING FROM LABOR DISPUTES "BY ENCOURAGING
THE PRACTICE AND PROCEDURE OF COLLECTIVE BARGAINING AND BY PROTECTING
THE EXERCISE BY WORKERS OF FULL FREEDOM OF ASSOCIATION, SELF
ORGANIZATION, AND DESIGNATION OF REPRESENTATIVES OF THEIR OWN
CHOOSING," FOR PURPOSES OF COLLECTIVE BARGAINING "OR OTHER MUTUAL AID
OR PROTECTION." 

IT WILL BE OBSERVED THAT THE FUNCTION ASSIGNED TO THE BOARD IS NOT
THE CHOICE OF THE LABOR ORGANIZATION TO REPRESENT A BARGAINING UNIT,
FOR THAT IS TO BE THE FREE CHOICE OF THE MAJORITY OF THE EMPLOYEES IN
SOME DEFINED GROUP OF EMPLOYEES WHICH THE BOARD FINDS TO CONSTITUTE THE
APPROPRIATE UNIT.  IN MAKING THE CHOICE OF THE UNIT, WHETHER COMPOSED
OF THE EMPLOYEES OF A PLANT, A CRAFT, OR OF AN EMPLOYER, THE BOARD IS
REQUIRED TO OBSERVE THE STANDARDS PRESCRIBED BY THE ACT, WHICH ARE "TO
INSURE TO EMPLOYEES THE FULL BENEFIT OF THEIR RIGHT TO SELF
ORGANIZATION AND TO COLLECTIVE BARGAINING" AND TO PROTECT "THE EXERCISE
BY WORKERS OF FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION, AND
DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING." 

THESE ARE OBVIOUSLY THE STANDARDS TO BE APPLIED IN A CERTIFICATION
PROCEEDING UNDER SEC. 9(C) WHICH PROVIDES THAT WHEN A QUESTION ARISES
"CONCERNING THE REPRESENTATION OF EMPLOYEES, THE BOARD MAY INVESTIGATE
SUCH CONTROVERSY AND CERTIFY TO THE PARTIES, IN WRITING, THE NAME OR
NAMES OF THE REPRESENTATIVES THAT HAVE BEEN DESIGNATED OR SELECTED.  IN
ANY SUCH INVESTIGATION, THE BOARD SHALL PROVIDE FOR APPROPRIATE HEARING
UPON DUE NOTICE, EITHER IN CONJUNCTION WITH A PROCEEDING UNDER SECTION
10(COMPLAINTS FOR UNFAIR LABOR PRACTICES) OR OTHERWISE AND MAY TAKE A
SECRET BALLOT OF EMPLOYEES OR UTILIZE ANY OTHER SUITABLE METHOD TO
ASCERTAIN SUCH REPRESENTATIVES."  A SIMILAR REQUIREMENT IS IMPOSED ON
THE BOARD UPON COMPLAINT OF UNFAIR LABOR PRACTICES. 

IT IS EVIDENT THEREFORE THAT IN THE PRESENT PROCEEDING THE BOARD
COULD NOT FIND THE COMPANY GUILTY OF AN UNFAIR LABOR PRACTICE UNLESS IT
HAD REFUSED TO BARGAIN WITH THE REPRESENTATIVE OF AN APPROPRIATE UNIT,
WHICH IN TURN REQUIRED THE BOARD TO FIND FROM RELEVANT EVIDENCE WHICH
IT WAS REQUIRED TO HEAR WHETHER THE EMPLOYEES OF THE CRYSTAL CITY PLANT
CONSTITUTED SUCH A UNIT.  IN MAKING THAT DETERMINATION THE BOARD
CONSIDERED, AS IT COULD UNDER SEC. 9(D), THE CERTIFICATION PROCEEDING,
BUT IT WAS NOT REQUIRED TO AND DID NOT CONFINE ITS CONSIDERATION TO
THAT PROCEEDING.  IT HEARD EVIDENCE BY NUMEROUS WITNESSES BEARING ON
THE QUESTION OF THE APPROPRIATE UNIT.  IT WAS BOUND TO RECEIVE AND
CONSIDER ALL THE EVIDENCE RELEVANT TO THAT ISSUE, WHICH WAS WHETHER THE
POLICIES OF THE ACT WOULD BE BETTER EFFECTUATED AND WHETHER THE RIGHT
OF ALL OF THE COMPANY'S EMPLOYEES TO SELF-ORGANIZATION WOULD BE FULLY
SECURED BY CERTIFYING A UNIT COMPRISING ALL THE EMPLOYEES OF THE SIX
PLANTS, OR TWO UNITS, ONE COMPOSED OF THE CRYSTAL CITY EMPLOYEES AND
THE OTHER THE EMPLOYEES IN THE FIVE PLANTS WHERE THE FEDERATION
ADMITTEDLY HAD A MAJORITY. 

THE BOARD HAS ALWAYS HITHERTO WEIGHED THE DESIRES OF THE EMPLOYEES IN
DETERMINING THE APPROPRIATE UNIT.  AND HERE THE BOARD CONCEDES THAT THE
CRYSTAL CITY EMPLOYEES STRONGLY PREFERRED TO BE REPRESENTED BY THE
UNION.  IN REFUSING TO ATTRIBUTE ANY WEIGHT TO THIS FACT THE BOARD
FOUND THAT THEIR CHOICE WAS NOT FREE, SINCE IT CONSIDERED THAT THE
UNION, BECAUSE OF THE CONSENT ORDER, WAS COMPANY DOMINATED.  WHETHER
THE UNION AND THE EMPLOYEES WERE IN FACT DOMINATED BY THE EMPLOYER, AND
THE NATURE OF THE BARGAINING RELATIONS WITH THE EMPLOYER, WERE THUS
CRUCIAL ISSUES IN THE CASE TO BE DETERMINED ON EVIDENCE.  AND WE ARE
CONFRONTED WITH THE EXTRAORDINARY FACT THAT THE BOARD HAS DETERMINED
THOSE ISSUES WITHOUT EVER HAVING HEARD ANY EVIDENCE ON THE SUBJECT
EITHER IN THE PRESENT OR THE TWO EARLIER PROCEEDINGS. 

THE PRESENT WISHES OF THE EMPLOYEES, THEIR FREEDOM IN SELF
ORGANIZATION FROM THE DOMINATION AND INTERFERENCE OF THE EMPLOYER,
THEIR PAST BARGAINING RELATIONS WITH THE EMPLOYER, WERE ALL ADMITTEDLY
RELEVANT CONSIDERATIONS.  EVEN THOUGH THE BOARD COULD HAVE REFUSED TO
HEAR THE EVIDENCE OFFERED AS TO THE WISHES OF THE CRYSTAL CITY
EMPLOYEES AND AS TO THE PRIOR BARGAINING HISTORY THERE, ON THE GROUND
THAT, IF TRUE, THE GREATER EFFECTIVENESS OF EMPLOYEE BARGAINING THROUGH
A DIVISION-WIDE REPRESENTATIVE AND THE COMMON INTERESTS OF THE
EMPLOYEES IN THE SIX PLANTS WARRANTED THE SELECTION OF THE EMPLOYEES IN
THE SIX PLANTS AS THE APPROPRIATE UNIT, IT DID NOT ATTEMPT TO DO SO.
INSTEAD, IT REJECTED THE EVIDENCE PROFFERED BY THE UNION NOT ON
TECHNICAL OR PROCEDURAL GROUNDS, NOR BECAUSE IT THOUGHT THESE
CIRCUMSTANCES IMMATERIAL, OR INSUFFICIENT TO CHANGE ITS DETERMINATION,
BUT ON THE SOLE GROUND THAT THE UNION WAS COMPANY DOMINATED AND "HAD
CEASED TO FUNCTION" BY REASON OF THE BOARD'S ORDER DIRECTING THE
COMPANY NOT TO BARGAIN WITH IT.  IT DID THIS WITHOUT HAVING FOUND IN
THE PRESENT OR IN EITHER OF THE EARLIER PROCEEDINGS THAT THE UNION HAD
EVER BEEN DOMINATED OR INTERFERED WITH BY THE COMPANY, AND WITHOUT
HAVING MADE ANY ORDER RUNNING AGAINST THE UNION OR PURPORTING TO BIND
IT.  THE POSITION OF THE BOARD THUS SEEMS TO BE THAT THE RIGHT OF THE
CRYSTAL CITY EMPLOYEES TO ACT AS A UNIT, AND THE RIGHT OF THE UNION TO
REPRESENT THEM IN PROCEEDINGS FOR ASCERTAINING THE APPROPRIATE
BARGAINING UNIT AND IN COLLECTIVE BARGAINING WITH THE EMPLOYER, WERE
FOREVER FORECLOSED IN A PROCEEDING IN WHICH THEY WERE NOT REPRESENTED,
TO WHICH THE UNION WAS NOT A PARTY, IN WHICH NO EVIDENCE WAS RECEIVED
OR FINDING MADE OF ANY UNFAIR LABOR PRACTICE, AND WHICH RESULTED ONLY
IN AN ORDER ON CONSENT OF THE EMPLOYER WHICH DID NOT PURPORT TO CONTROL
THE CRYSTAL CITY EMPLOYEES OR THE UNION, OR DETERMINE THEIR RIGHTS. 

THE ONLY SUPPORT WHICH THE OPINION OF THE COURT AFFORDS FOR A RESULT
SO EXTRAORDINARY IS AN INTIMATION THAT THE CRYSTAL CITY EMPLOYEES AND
THE UNION HAD FORFEITED THEIR RIGHT TO HAVE THE PROFFERED EVIDENCE
CONSIDERED BY THE BOARD BECAUSE THE UNION HAD FAILED TO INTERVENE IN
THE FIRST PROCEEDING IN WHICH THE BOARD MADE ITS CONSENT ORDER AGAINST
THE COMPANY, AND BECAUSE IN THE OPINION OF THE COURT THE EXCLUDED
EVIDENCE, IF CONSIDERED, WOULD NOT HAVE MATERIALLY AFFECTED THE
OUTCOME. 

AS THE OPINION OF THE COURT ITSELF POINTS OUT, THE FIRST ORDER OF THE
BOARD DID NOT RUN AGAINST OR PURPORT TO BIND THE UNION, SEE LABOR BOARD
V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261; AND AS THIS COURT HAS
DECIDED THE BOARD IS WITHOUT AUTHORITY UNDER THE PROVISIONS OF THE ACT,
TO SAY NOTHING OF CONSTITUTIONAL LIMITATIONS, TO MAKE ANY ORDER
DETERMINING THE RIGHTS OF A LABOR ORGANIZATION IN A PROCEEDING TO WHICH
IT IS NOT MADE A PARTY.  IT WAS BECAUSE THE BOARD PURPORTED THUS TO
DETERMINE THE RIGHTS OF AN ABSENT PARTY WHICH HAD FAILED TO INTERVENE,
THAT WE MODIFIED ITS ORDER IN NATIONAL LICORICE CO. V. LABOR BOARD, 309
U.S. 350, 362, 367.  IT IS NEW DOCTRINE IN THE LAW, THAT ONE WHO IS NOT
A NECESSARY PARTY TO A PROCEEDING IN WHICH NO ORDER IS MADE AGAINST
HIM, NEVERTHELESS IN SOME WAY AND ON SOME UNDISCLOSED THEORY, FORFEITS
HIS RIGHTS IF HE DOES NOT VOLUNTARILY BECOME A PARTY.  AT THE PRESENT
TERM OF COURT WE HAVE HAD OCCASION TO REAFFIRM THE LONG RECOGNIZED
PRINCIPLE THAT A JUDGMENT OF A COURT WHICH PURPORTS TO BIND PARTIES NOT
PRESENT OR REPRESENTED IN THE LITIGATION IS WITHOUT EFFICACY TO BIND
THEM BECAUSE IF GIVEN SUCH EFFECT THE JUDGMENT WOULD BE A DENIAL OF DUE
PROCESS.  HANSBERRY V. LEE, 311 U.S. 32.  THE ORDER OF AN
ADMINISTRATIVE BOARD CAN HAVE NO GREATER FORCE. 

THERE IS NO PROVISION OF THE STATUTE PROVIDING FOR NOTICE OR OTHER
PROCEDURE ON THE BASIS OF WHICH THE RIGHTS OF ABSENT PARTIES ARE TO BE
FORECLOSED, AND IN THE PRESENT CASE IT DOES NOT EVEN APPEAR THAT THE
UNION OR THE CRYSTAL CITY EMPLOYEES WERE NOTIFIED OR WERE OTHERWISE
AWARE OF THE PROCEEDING IN WHICH THE ORDER WAS MADE ON CONSENT OF THE
EMPLOYER, WHICH IT IS NOW ASSERTED OPERATED TO TERMINATE THE EXISTENCE
OF THE UNION AND FOR THAT REASON FORFEITED ITS RIGHT AND THE RIGHT OF
THE EMPLOYEES TO HAVE RELEVANT EVIDENCE CONSIDERED IN A REPRESENTATION
PROCEEDING. 

THE SUGGESTION THAT AN APPROPRIATE HEARING UPON EVIDENCE MAY BE
DISPENSED WITH BECAUSE THE REJECTED EVIDENCE WOULD NOT HAVE MATERIALLY
AFFECTED THE OUTCOME, SEEMS TO BE BASED EITHER ON THE ASSUMPTION THAT
THE BOARD HAS IN SOME WAY PASSED ON THE WEIGHT OF THE REJECTED EVIDENCE
WITHOUT HEARING IT, OR THAT THE COURT IS NOW FREE TO APPRAISE IT AND
PERFORM THE FUNCTION WHICH THE BOARD NEGLECTED TO PERFORM.  NEITHER
POSITION IS TENABLE.  THE BOARD REFUSED TO CONSIDER ANY OF THE
PROFFERED EVIDENCE ON THE SOLE AND ERRONEOUS GROUND THAT THE UNION AND
THE CRYSTAL CITY EMPLOYEES HAD LOST THE STATUS WHICH THEY OTHERWISE
WOULD HAVE HAD ENTITLING THEM TO HAVE THEIR WISHES AND THEIR RELATIONS
WITH THE EMPLOYER CONSIDERED IN A REPRESENTATION PROCEEDING.  WE HAVE
NO WARRANT FOR SAYING THAT THE BOARD WOULD HAVE ATTRIBUTED LESS WEIGHT
TO THESE FACTORS THAN TO OTHERS FAVORABLE TO THE FEDERATION WHICH IT
DID CONSIDER, OR THAT IF IT HAD THOUGHT THAT IT WAS FREE TO CONSIDER
THEM THE OUTCOME WOULD HAVE BEEN THE SAME, OR THAT IN ANY CASE, ON
REVIEW OF THE BOARD'S ORDER, THE INTERESTED PARTIES WOULD NOT HAVE BEEN
ENTITLED TO URGE THAT THE BOARD, UPON CONSIDERATION OF ALL THE
EVIDENCE, HAD NOT PROPERLY EXERCISED ITS DISCRETION. 

AS WE ARE OFTEN REMINDED, MOST OF THE DECISIONS OF THE BOARD INVOLVE
DISCRETION WHICH IS TO BE EXERCISED BY IT ALONE AND NOT THE COURTS. 
FOR THAT REASON THE ONLY SUBSTANTIAL RIGHT OF THE LITIGANT BEFORE THE
BOARD IS, IN MOST CASES, THE RIGHT TO INVOKE THE EXERCISE OF THAT
DISCRETION UPON A FULL AND FAIR CONSIDERATION OF ALL THE RELEVANT
EVIDENCE.  THAT RIGHT THE BOARD HAS DENIED TO PETITIONERS IN THIS CASE
BY REFUSING TO CONSIDER THE EVIDENCE UPON PALPABLY ERRONEOUS GROUNDS. 
WE ARE NO MORE FREE IN THIS CASE TO PASS UPON THE WEIGHT AND
SUFFICIENCY OF THE EVIDENCE, WITH THE DETAILS OF WHICH, LIKE THE BOARD,
WE ARE UNACQUAINTED, THAN IN ANY OTHER CASE IN WHICH THE BOARD IS
REQUIRED TO RECEIVE AND PASS UPON EVIDENCE. 

ONE OF THE MOST IMPORTANT SAFEGUARDS OF THE RIGHTS OF LITIGANTS AND
THE MINIMAL CONSTITUTIONAL REQUIREMENT, IN PROCEEDINGS BEFORE AN
ADMINISTRATIVE AGENCY VESTED WITH DISCRETION, IS THAT IT CANNOT RIGHTLY
EXCLUDE FROM CONSIDERATION FACTS AND CIRCUMSTANCES RELEVANT TO ITS
INQUIRY WHICH UPON DUE CONSIDERATION MAY BE OF PERSUASIVE WEIGHT IN THE
EXERCISE OF ITS DISCRETION.  INTERSTATE COMMERCE COMMISSION V. CHICAGO,
R.I. & P. RY. CO., 218 U.S. 88, 102; ST. JOSEPH STOCK YARDS CO. V.
UNITED STATES, 298 U.S. 38, 75, 78; OHIO BELL TELEPHONE CO. V.
COMMISSION, 301 U.S. 292, 304, 305.    THE CHIEF JUSTICE AND MR.
JUSTICE ROBERTS CONCUR IN THIS OPINION. 
..END :














PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177 


NO. 387.  ARGUED MARCH 11, 1941.  - DECIDED APRIL 28, 1941.  - 113 F.2D
202, MODIFIED. 


1.  UNDER SEC. 8(3) OF THE NATIONAL LABOR RELATIONS ACT, AN EMPLOYER
WHO REFUSES TO HIRE AN APPLICANT FOR EMPLOYMENT SOLELY BECAUSE OF THE
APPLICANT'S AFFILIATION WITH A LABOR UNION IS GUILTY OF AN UNFAIR LABOR
PRACTICE.  P. 182. 

2.  WHEN APPLICANTS HAVE BEEN UNLAWFULLY REFUSED EMPLOYMENT SOLELY
BECAUSE OF THEIR AFFILIATIONS WITH A LABOR UNION, SEC. 10(C) OF THE
LABOR ACT EMPOWERS THE LABOR BOARD TO ORDER THE EMPLOYER TO UNDO THE
DISCRIMINATION BY OFFERING THEM THE OPPORTUNITY FOR EMPLOYMENT WHICH
SHOULD NOT HAVE BEEN DENIED THEM.  P. 187. 

3.  IN THIS THE ACT DOES NOT VIOLATE THE FIFTH AMENDMENT.  P. 187. 

4.  IN SEC. 10(C) OF THE LABOR ACT, EMPOWERING THE LABOR BOARD TO
REQUIRE AN EMPLOYER GUILTY OF AN UNFAIR LABOR PRACTICE TO DESIST AND TO
TAKE SUCH AFFIRMATIVE ACTION, "INCLUDING REINSTATEMENT OF EMPLOYEES
WITH OR WITHOUT BACK PAY," AS WILL EFFECTUATE THE POLICIES OF THE ACT,
THE PARTICIPIAL PHRASE "INCLUDING REINSTATEMENT," ETC., IS ILLUSTRATIVE
MERELY AND IS NOT TO BE CONSTRUED AS A LIMITATION UPON THE BOARD'S
POWER TO REMEDY UNLAWFUL DISCRIMINATION IN THE HIRING AS WELL AS IN THE
DISCHARGE OF WORKERS.  P. 188. 

5.  UNDER SEC. 10(C) OF THE LABOR RELATIONS ACT AN EMPLOYER WHO HAS
BEEN GUILTY OF THE UNFAIR LABOR PRACTICE OF REFUSING TO HIRE MEN
BECAUSE OF THEIR UNION AFFILIATIONS MAY BE REQUIRED BY THE BOARD, FOR
EFFECTUATION OF THE POLICIES OF THE ACT, TO OFFER THEM OPPORTUNITY FOR
EMPLOYMENT, EVEN THOUGH THEY HAVE, IN THE MEANTIME, OBTAINED REGULAR
AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT ELSEWHERE.  P. 189. 

6.  THE BROAD MEANING OF THE TERM "EMPLOYEE" AS USED IN SEC. 10(C) OF
THE LABOR ACT AND IN THE EARLIER PART OF SEC. 2(3), IS NOT RESTRICTED
BY THE CONCLUDING CLAUSE OF SEC. 2(3), WHICH DECLARES THAT THE TERM
"EMPLOYEE" SHALL INCLUDE ANY INDIVIDUAL WHOSE WORK HAS CEASED AS A
CONSEQUENCE OF ANY UNFAIR LABOR PRACTICE "AND WHO HAS NOT OBTAINED ANY
OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT."  P. 191. 

THIS LAST PROVISION IS ASSIGNABLE TO OTHER PURPOSES, E.G., FOR
DETERMINING WHO ARE THE "EMPLOYEES" WITH WHOM AN EMPLOYER MUST BARGAIN
COLLECTIVELY, SECS. 8(5), 9(A), OR WHO ARE TO BE TREATED AS "EMPLOYEES"
WITHIN A BARGAINING UNIT, SEC. 9(B). 

7.  TO DENY THE BOARD POWER TO NEUTRALIZE DISCRIMINATION MERELY
BECAUSE WORKERS HAVE OBTAINED OTHER COMPENSATORY EMPLOYMENT WOULD
CONFINE THE "POLICIES OF THIS ACT" TO THE CORRECTION OF PRIVATE
INJURIES, WHEREAS THE BOARD WAS NOT DEVISED FOR SUCH A LIMITED
FUNCTION, BUT IS THE AGENCY OF CONGRESS FOR TRANSLATING INTO
CONCRETENESS THE PURPOSE OF SAFEGUARDING AND ENCOURAGING THE RIGHT OF
SELF-ORGANIZATION.  P. 192. 

8.  ALTHOUGH AN EMPLOYER WHO HAS DENIED RE-EMPLOYMENT TO WORKERS
SOLELY BECAUSE OF THEIR LABOR UNION AFFILIATIONS MAY BE REQUIRED TO
OFFER THEM EMPLOYMENT NOTWITHSTANDING THEIR HAVING OBTAINED EQUIVALENT
EMPLOYMENT ELSEWHERE, THIS REMEDY DOES NOT FLOW FROM THE ACT
AUTOMATICALLY WHEN THE DISCRIMINATION IS FOUND, BUT DEPENDS UPON A
FINDING BY THE BOARD, IN THE EXERCISE OF ITS INFORMED DISCRETION, THAT
EFFECTUATION OF THE POLICIES OF THE ACT REQUIRES SUCH REINSTATEMENT. 
P. 193. 

9.  AN ORDER OF THE LABOR BOARD REQUIRING AN EMPLOYER TO REINSTATE
STRIKERS WHO OBTAINED OTHER EMPLOYMENT, SHOULD STATE THE BASIS OF THE
ORDER.  P. 197. 

10.  THE REMEDY OF ORDERING BACK PAY IS IN THE BOARD'S DISCRETION,
NOT MECHANICALLY COMPELLED BY THE ACT.  P. 198. 

11.  WHERE AN ORDER OF THE LABOR BOARD REQUIRES THAT A WORKER BE
RESTORED TO EMPLOYMENT AND BE COMPENSATED FOR LOSS OF PAY, DEDUCTION
SHOULD BE MADE NOT ONLY FOR ACTUAL EARNINGS OF THE WORKER WHILE OUT OF
EMPLOYMENT BUT ALSO FOR LOSSES WHICH HE WILLFULLY INCURRED.  P. 197. 

12.  THE AMOUNT OF SUCH DEDUCTION SHOULD BE DETERMINED BY THE BOARD
PRIOR TO FORMULATION OF ITS ORDER.  P. 200. 

PHELPS DODGE CORP. V. NATIONAL LABOR RELATIONS BOARD* . 

*TOGETHER WITH NO. 641, NATIONAL LABOR RELATIONS BOARD V. PHELPS
DODGE CORP., ALSO ON WRIT OF CERTIORARI, 312 U.S. 669, TO THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 312 U.S. 669, TO REVIEW A JUDGMENT SUSTAINING IN PART AND
IN PART DISAPPROVING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 19
N.L.R.B. 547. 

IT IS NOT AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER TO REFUSE
EMPLOYMENT BECAUSE OF UNION MEMBERSHIP OR ACTIVITY TO ONE WHO IS NOT
HIS "EMPLOYEE" AS THAT TERM IS DEFINED IN SEC. 2(3) OF THE ACT, AND THE
BOARD HAS NO AUTHORITY TO ORDER THE EMPLOYMENT OF OR THE PAYMENT OF
BACK PAY TO SUCH A PERSON. 

IF CONSTRUED TO AUTHORIZE THE BOARD TO REQUIRE THE EMPLOYMENT OF ONE
WHO WAS NOT AN "EMPLOYEE" AT THE TIME WHEN HE WAS REFUSED EMPLOYMENT,
THE ACT VIOLATES THE FIFTH AMENDMENT. 

THE INDIVIDUALS WHO WENT ON STRIKE ON JUNE 10, 1935, WERE NOT
"EMPLOYEES" OF THE COMPANY WHEN THE ACT BECAME EFFECTIVE AND DID NOT
BECOME SUCH BY VIRTUE OF ITS PROVISIONS. 

THEY HAVE AT NO TIME OCCUPIED THE STATUS OF "EMPLOYEES" UNDER THE ACT
AND NO UNFAIR LABOR PRACTICE HAS BEEN COMMITTED BY THE COMPANY.  THEY
DID NOT OCCUPY THE STATUS OF "EMPLOYEES" BETWEEN JULY 5, 1935, AND
AUGUST 24, 1935, MERELY BY VIRTUE OF THE PICKETING, WHICH WAS
DISCONTINUED ON THE LATTER DATE. 

EVEN ASSUMING THAT THE PERSONS WHO WENT ON STRIKE ON JUNE 10, 1935,
WERE "EMPLOYEES" OF THE COMPANY UNDER THE ACT BETWEEN JULY 5 AND AUGUST
24, 1935, THERE WAS NO DISCRIMINATORY REFUSAL TO "REINSTATE" AND
CONSEQUENTLY NO UNFAIR LABOR PRACTICE DURING THAT PERIOD.  THE
DISCRIMINATORY REFUSALS TO HIRE OCCURRED AFTER AUGUST 24, 1935, BUT
FROM AND AFTER THAT DATE THE PERSONS WHO HAD PREVIOUSLY BEEN ON STRIKE
WERE CLEARLY NOT "EMPLOYEES" AND NO UNFAIR LABOR PRACTICE WAS
COMMITTED. 

THE BOARD HAS NO AUTHORITY UNDER SEC. 10(C) TO ORDER THE
REINSTATEMENT OF PERSONS WHO WERE DISCRIMINATED AGAINST WHILE OCCUPYING
THE STATUS OF "EMPLOYEES" AS DEFINED IN SEC. 2(3), BUT WHO THEREAFTER
OBTAINED "OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT" WITHIN
THE MEANING OF THE LATTER PROVISION, BECAUSE SUCH PERSONS NO LONGER
OCCUPY THE STATUS OF "EMPLOYEES." 

EMPLOYEES WITH OR WITHOUT BACK PAY" AND DOES NOT AUTHORIZE THE BOARD TO
AWARD BACK PAY TO PERSONS AS TO WHOM IT HAS NO AUTHORITY TO ORDER
REINSTATEMENT. 

A PERSON WHO HAS BEEN THE OBJECT OF AN UNFAIR LABOR PRACTICE HAS THE
DUTY OF EXERCISING REASONABLE DILIGENCE TO SECURE AND RETAIN OTHER
EMPLOYMENT AND THE AMOUNT OF BACK PAY TO WHICH HE MIGHT OTHERWISE BE
ENTITLED SHOULD BE REDUCED BY WHATEVER AMOUNT HE FAILED WITHOUT EXCUSE
TO EARN. 

WHERE THE REPRESENTATIVES OF PERSONS WHO CLAIM TO HAVE BEEN
DISCRIMINATED AGAINST DELAY FOR MORE THAN TWO YEARS BEFORE FILING
CHARGES, AND THE BOARD THEREAFTER TAKES AN ADDITIONAL TWO AND A HALF
YEARS TO DISPOSE OF THE CASE, AN EMPLOYER WHO DURING THAT ENTIRE PERIOD
HAS BEEN HELPLESS TO OBTAIN A DETERMINATION OF HIS RIGHTS AND
OBLIGATIONS IS ENTITLED TO JUDICIAL RELIEF FROM AN EXCESSIVE AWARD OF
BACK PAY. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE DOMINATING QUESTION WHICH THIS LITIGATION BRINGS HERE FOR THE
FIRST TIME IS WHETHER AN EMPLOYER SUBJECT TO THE NATIONAL LABOR
RELATIONS ACT MAY REFUSE TO HIRE EMPLOYEES SOLELY BECAUSE OF THEIR
AFFILIATIONS WITH A LABOR UNION.  SUBSIDIARY QUESTIONS GROW OUT OF THIS
CENTRAL ISSUE RELATING TO THE MEANS OPEN TO THE BOARD TO "EFFECTUATE
THE POLICIES OF THIS ACT," IF IT FINDS SUCH DISCRIMINATION IN HIRING AN
"UNFAIR LABOR PRACTICE."  OTHER QUESTIONS TOUCHING THE REMEDIAL POWERS
OF THE BOARD ARE ALSO INVOLVED.  WE GRANTED A PETITION BY THE PHELPS
DODGE CORPORATION AND A CROSS-PETITION BY THE BOARD, 312 U.S. 669, TO
REVIEW A DECISION BY THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT, 113 F.2D 202, WHICH ENFORCED THE ORDER OF THE BOARD, 19
N.L.R.B. 547, WITH MODIFICATIONS.  THE MAIN ISSUE IS INTRINSICALLY
IMPORTANT AND HAS STIRRED A CONFLICT OF DECISIONS.  LABOR BOARD V.
WAUMBEC MILLS, 114 F.2D 226. 

THE SOURCE OF THE CONTROVERSY WAS A STRIKE, BEGUN ON JUNE 10, 1935,
BY THE INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS AT PHELPS
DODGE'S COPPER QUEEN MINE, BISBEE, ARIZONA.  PICKETING OF THE MINE
CONTINUED UNTIL AUGUST 24, 1935, WHEN THE STRIKE TERMINATED.  DURING
THE STRIKE, THE NATIONAL LABOR RELATIONS ACT CAME INTO FORCE.  ACT OF
JULY 5, 1935, 49 STAT. 449, 29 U.S.C. SEC. 151 ET SEQ. THE BASIS OF THE
BOARD'S CONCLUSION THAT THE CORPORATION HAD COMMITTED UNFAIR LABOR
PRACTICES IN VIOLATION OF SEC. 8(3) OF THE ACT WAS A FINDING, NOT
CHALLENGED HERE, THAT A NUMBER OF MEN HAD BEEN REFUSED EMPLOYMENT
BECAUSE OF THEIR AFFILIATIONS WITH THE UNION.  OF THESE MEN, TWO,
CURTIS AND DAUGHERTY, HAD CEASED TO BE IN THE CORPORATION'S EMPLOY
BEFORE THE STRIKE BUT SOUGHT EMPLOYMENT AFTER ITS CLOSE.  THE OTHERS,
THIRTY-EIGHT IN NUMBER, WERE STRIKERS.  TO "EFFECTUATE THE POLICIES" OF
THE ACT, SEC. 10(C), THE BOARD ORDERED THE CORPORATION TO OFFER CURTIS
AND DAUGHERTY JOBS AND TO MAKE THEM WHOLE FOR THE LOSS OF PAY RESULTING
FROM THE REFUSAL TO HIRE THEM, AND IT ORDERED THIRTY-SEVEN OF THE
STRIKERS REINSTATED WITH BACK PAY, AND THE OTHER STRIKER MADE WHOLE FOR
LOSS IN WAGES UP TO THE TIME HE BECAME UNEMPLOYABLE.  SAVE FOR A
MODIFICATION PRESENTLY TO BE DISCUSSED, THE CIRCUIT COURT OF APPEALS
ENFORCED THE ORDER AFFECTING THE STRIKERS BUT STRUCK DOWN THE
PROVISIONS RELATING TO CURTIS AND DAUGHERTY. 

FIRST.  THE DENIAL OF JOBS TO MEN BECAUSE OF UNION AFFILIATIONS IS AN
OLD AND FAMILIAR ASPECT OF AMERICAN INDUSTRIAL RELATIONS.  THEREFORE,
IN DETERMINING WHETHER SUCH DISCRIMINATION LEGALLY SURVIVES THE
NATIONAL LABOR RELATIONS ACT, THE HISTORY WHICH LED TO THE ACT AND THE
AIMS WHICH INFUSE IT GIVE DIRECTION TO OUR INQUIRY.  CONGRESS
EXPLICITLY DISCLOSED ITS PURPOSES IN DECLARING THE POLICY WHICH
UNDERLIES THE ACT.  ITS ULTIMATE CONCERN, AS WELL AS THE SOURCE OF ITS
POWER, WAS "TO ELIMINATE THE CAUSES OF CERTAIN SUBSTANTIAL OBSTRUCTIONS
TO THE FREE FLOW OF COMMERCE."  THIS VITAL NATIONAL PURPOSE WAS TO BE
ACCOMPLISHED "BY ENCOURAGING THE PRACTICE AND PROCEDURE OF COLLECTIVE
BARGAINING AND BY PROTECTING THE EXERCISE BY WORKERS OF FULL FREEDOM OF
ASSOCIATION."  SEC. 1.  ONLY THUS COULD WORKERS ENSURE THEMSELVES
ECONOMIC STANDARDS CONSONANT WITH NATIONAL WELL-BEING.  PROTECTION OF
THE WORKERS' RIGHT TO SELF-ORGANIZATION DOES NOT CURTAIL THE
APPROPRIATE SPHERE OF MANAGERIAL FREEDOM; IT FURTHERS THE WHOLESOME
CONDUCT OF BUSINESS ENTERPRISE.  "THE ACT," THIS COURT HAS SAID, "DOES
NOT INTERFERE WITH THE NORMAL EXERCISE OF THE RIGHT OF THE EMPLOYER TO
SELECT ITS EMPLOYEES OR TO DISCHARGE THEM."  BUT "UNDER COVER OF THAT
RIGHT," THE EMPLOYER MAY NOT "INTIMIDATE OR COERCE ITS EMPLOYEES WITH
RESPECT TO THEIR SELF-ORGANIZATION AND REPRESENTATION."  WHEN
"EMPLOYERS FREELY RECOGNIZE THE RIGHT OF THEIR EMPLOYEES TO THEIR OWN
ORGANIZATIONS AND THEIR UNRESTRICTED RIGHT OF REPRESENTATION THERE WILL
BE MUCH LESS OCCASION FOR CONTROVERSY IN RESPECT TO THE FREE AND
APPROPRIATE EXERCISE OF THE RIGHT OF SELECTION AND DISCHARGE."  LABOR
BOARD V. JONES & LAUGHLIN, 301 U.S. 1, 45, 46.  THIS IS SO BECAUSE OF
THE NATURE OF MODERN INDUSTRIALISM.  LABOR UNIONS WERE ORGANIZED "OUT
OF THE NECESSITIES OF THE SITUATION.  ...  UNION WAS ESSENTIAL TO GIVE
LABORERS OPPORTUNITY TO DEAL ON EQUALITY WITH THEIR EMPLOYER."  SUCH
WAS THE VIEW, ON BEHALF OF THE COURT, OF CHIEF JUSTICE TAFT, AMERICAN
STEEL FOUNDRIES V. TRICITY COUNCIL, 257 U.S. 184, 209, AFTER HIS UNIQUE
PRACTICAL EXPERIENCE WITH THE CAUSES OF INDUSTRIAL UNREST AS CO
CHAIRMAN OF THE NATIONAL WAR LABOR BOARD.  AND SO THE PRESENT ACT,
CODIFYING THIS LONG HISTORY, LEAVES THE ADJUSTMENT OF INDUSTRIAL
RELATIONS TO THE FREE PLAY OF ECONOMIC FORCES BUT SEEKS TO ASSURE THAT
THE PLAY OF THOSE FORCES BE TRULY FREE. 

IT IS NO LONGER DISPUTED THAT WORKERS CANNOT BE DISMISSED FROM
EMPLOYMENT BECAUSE OF THEIR UNION AFFILIATIONS.  IS THE NATIONAL
INTEREST IN INDUSTRIAL PEACE LESS AFFECTED BY DISCRIMINATION AGAINST
UNION ACTIVITY WHEN MEN ARE HIRED?  THE CONTRARY IS OVERWHELMINGLY
ATTESTED BY THE LONG HISTORY OF INDUSTRIAL CONFLICTS, THE DIAGNOSIS OF
THEIR CAUSES BY OFFICIAL INVESTIGATIONS, THE CONVICTION OF PUBLIC MEN,
INDUSTRIALISTS AND SCHOLARS.  FN1  BECAUSE OF THE PULLMAN STRIKE,
CONGRESS IN THE ERDMAN ACT OF 1898 PROHIBITED INROADS UPON THE
WORKINGMAN'S RIGHT OF ASSOCIATION BY DISCRIMINATORY PRACTICES AT THE
POINT OF HIRING.  FN2  KINDRED LEGISLATION HAS BEEN PUT ON THE STATUTE
BOOKS OF MORE THAN HALF THE STATES.  FN3  AND DURING THE LATE WAR THE
NATIONAL WAR LABOR BOARD CONCLUDED THAT DISCRIMINATION AGAINST UNION
MEN AT THE TIME OF HIRING VIOLATED ITS DECLARED POLICY THAT "THE RIGHT
OF WORKERS TO ORGANIZE IN TRADE-UNIONS AND TO BARGAIN COLLECTIVELY  ...
SHALL NOT BE DENIED, ABRIDGED, OR INTERFERED WITH BY THE EMPLOYERS IN
ANY MANNER WHATSOEVER."  FN4 SUCH A POLICY IS AN INEVITABLE COROLLARY
OF THE PRINCIPLE OF FREEDOM OF ORGANIZATION.  DISCRIMINATION AGAINST
UNION LABOR IN THE HIRING OF MEN IS A DAM TO SELF-ORGANIZATION AT THE
SOURCE OF SUPPLY.  THE EFFECT OF SUCH DISCRIMINATION IS NOT CONFINED TO
THE ACTUAL DENIAL OF EMPLOYMENT; IT INEVITABLY OPERATES AGAINST THE
WHOLE IDEA OF THE LEGITIMACY OF ORGANIZATION.  IN A WORD, IT UNDERMINES
THE PRINCIPLE WHICH, AS WE HAVE SEEN, IS RECOGNIZED AS BASIC TO THE
ATTAINMENT OF INDUSTRIAL PEACE. 

THESE ARE COMMONPLACES IN THE HISTORY OF AMERICAN INDUSTRIAL
RELATIONS.  BUT PRECISELY FOR THAT REASON THEY MUST BE KEPT IN THE
FOREFRONT IN ASCERTAINING THE MEANING OF A MAJOR ENACTMENT DEALING WITH
THESE RELATIONS.  TO BE SURE, IN OUTLAWING UNFAIR LABOR PRACTICES
CONGRESS DID NOT LEAVE THE MATTER AT LARGE.  THE PRACTICES CONDEMNED
"ARE STRICTLY LIMITED TO THOSE ENUMERATED IN SECTION 8," S. REP. NO.
573, 74TH CONG., 1ST SESS., P. 8.  SECTION 8(3) IS THE FOUNDATION OF
THE BOARD'S DETERMINATION THAT IN REFUSING EMPLOYMENT TO THE TWO MEN
BECAUSE OF THEIR UNION AFFILIATIONS PHELPS DODGE VIOLATED THE ACT.  AND
SO WE TURN TO ITS PROVISIONS THAT "IT SHALL BE AN UNFAIR LABOR PRACTICE
FOR AN EMPLOYER  ...  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." 

UNLIKE MATHEMATICAL SYMBOLS, THE PHRASING OF SUCH SOCIAL LEGISLATION
AS THIS SELDOM ATTAINS MORE THAN APPROXIMATE PRECISION OF DEFINITION. 
THAT IS WHY ALL RELEVANT AIDS ARE SUMMONED TO DETERMINE MEANING.  OF
COMPELLING CONSIDERATION IS THE FACT THAT WORDS ACQUIRE SCOPE AND
FUNCTION FROM THE HISTORY OF EVENTS WHICH THEY SUMMARIZE.  WE HAVE SEEN
THE CLOSE LINK BETWEEN A BAR TO EMPLOYMENT BECAUSE OF UNION AFFILIATION
AND THE OPPORTUNITIES OF LABOR ORGANIZATIONS TO EXIST AND TO PROSPER. 
SUCH AN EMBARGO AGAINST EMPLOYMENT OF UNION LABOR WAS NOTORIOUSLY ONE
OF THE CHIEF OBSTRUCTIONS TO COLLECTIVE BARGAINING THROUGH SELF
ORGANIZATION.  INDISPUTABLY THE REMOVAL OF SUCH OBSTRUCTIONS WAS THE
DRIVING FORCE BEHIND THE ENACTMENT OF THE NATIONAL LABOR RELATIONS
ACT.  THE PROHIBITION AGAINST "DISCRIMINATION IN REGARD TO HIRE" MUST
BE APPLIED AS A MEANS TOWARDS THE ACCOMPLISHMENT OF THE MAIN OBJECT OF
THE LEGISLATION.  WE ARE ASKED TO READ "HIRE" AS MEANING THE WAGES PAID
TO AN EMPLOYEE SO AS TO MAKE THE STATUTE MERELY FORBID DISCRIMINATION
IN ONE OF THE TERMS OF MEN WHO HAVE SECURED EMPLOYMENT.  SO TO READ THE
STATUTE WOULD DO VIOLENCE TO A SPONTANEOUS TEXTUAL READING OF SEC. 8(3)
IN THAT "HIRE" WOULD SERVE NO FUNCTION BECAUSE, IN THE SENSE WHICH IS
URGED UPON US, IT IS INCLUDED IN THE PROHIBITION AGAINST
"DISCRIMINATION IN REGARD TO  ...  ANY TERM OR CONDITION OF
EMPLOYMENT."  CONTEMPORANEOUS LEGISLATIVE HISTORY,  FN5  AND, ABOVE
ALL, THE BACKGROUND OF INDUSTRIAL EXPERIENCE, FORBID SUCH TEXTUAL
MUTILATION. 

THE NATURAL CONSTRUCTION WHICH THE TEXT, THE LEGISLATIVE SETTING AND
THE FUNCTION OF THE STATUTE COMMAND, DOES NOT IMPOSE AN OBLIGATION ON
THE EMPLOYER TO FAVOR UNION MEMBERS IN HIRING EMPLOYEES.  HE IS AS FREE
TO HIRE AS HE IS TO DISCHARGE EMPLOYEES.  THE STATUTE DOES NOT TOUCH
"THE NORMAL EXERCISE OF THE RIGHT OF THE EMPLOYER TO SELECT ITS
EMPLOYEES OR TO DISCHARGE THEM."  IT IS DIRECTED SOLELY AGAINST THE
ABUSE OF THAT RIGHT BY INTERFERING WITH THE COUNTERVAILING RIGHT OF
SELF-ORGANIZATION. 

WE HAVE ALREADY RECOGNIZED THE POWER OF CONGRESS TO DENY AN EMPLOYER
THE FREEDOM TO DISCRIMINATE IN DISCHARGING.  LABOR BOARD V. JONES &
LAUGHLIN, 301 U.S. 1.  SO FAR AS QUESTIONS OF CONSTITUTIONALITY ARE
CONCERNED WE NEED NOT ENLARGE ON THE STATEMENT OF JUDGE LEARNED HAND IN
HIS OPINION BELOW THAT THERE IS "NO GREATER LIMITATION IN DENYING HIM
(THE EMPLOYER) THE POWER TO DISCRIMINATE IN HIRING, THAN IN
DISCHARGING."  THE COURSE OF DECISIONS IN THIS COURT SINCE ADAIR V.
UNITED STATES, 208 U.S. 161, AND COPPAGE V. KANSAS, 236 U.S. 1, HAVE
COMPLETELY SAPPED THOSE CASES OF THEIR AUTHORITY.  PENNSYLVANIA R. CO.
V. LABOR BOARD, 261 U.S. 72; TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281
U.S. 548; VIRGINIAN RY. V. FEDERATION, 300 U.S. 515; LABOR BOARD V.
JONES & LAUGHLIN, SUPRA.    SECOND.  SINCE THE REFUSAL TO HIRE CURTIS
AND DAUGHERTY SOLELY BECAUSE OF THEIR AFFILIATION WITH THE UNION WAS AN
UNFAIR LABOR PRACTICE UNDER SEC. 8(3), THE REMEDIAL AUTHORITY OF THE
BOARD UNDER SEC. 10(C) BECAME OPERATIVE.  OF COURSE IT COULD ISSUE, AS
IT DID, AN ORDER "TO CEASE AND DESIST FROM SUCH UNFAIR LABOR PRACTICE"
IN THE FUTURE.  DID CONGRESS ALSO EMPOWER THE BOARD TO ORDER THE
EMPLOYER TO UNDO THE WRONG BY OFFERING THE MEN DISCRIMINATED AGAINST
THE OPPORTUNITY FOR EMPLOYMENT WHICH SHOULD NOT HAVE BEEN DENIED THEM? 
REINSTATEMENT IS THE CONVENTIONAL CORRECTION FOR DISCRIMINATORY
DISCHARGES.  EXPERIENCE HAVING DEMONSTRATED THAT DISCRIMINATION IN
HIRING IS TWIN TO DISCRIMINATION IN FIRING, IT WOULD INDEED BE
SURPRISING IF CONGRESS GAVE A REMEDY FOR THE ONE WHICH IT DENIED FOR
THE OTHER.  THE POWERS OF THE BOARD AS WELL AS THE RESTRICTIONS UPON IT
MUST BE DRAWN FROM SEC. 10(C), WHICH DIRECTS THE BOARD "TO TAKE SUCH
AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR
WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES OF THIS ACT."  IT
COULD NOT BE SERIOUSLY DENIED THAT TO REQUIRE DISCRIMINATION IN HIRING
OR FIRING TO BE "NEUTRALIZED," LABOR BOARD V. MACKAY CO., 304 U.S. 333,
348, BY REQUIRING THE DISCRIMINATION TO CEASE NOT ABSTRACTLY BUT IN THE
CONCRETE VICTIMIZING INSTANCES, IS AN "AFFIRMATIVE ACTION" WHICH "WILL
EFFECTUATE THE POLICIES OF THIS ACT."  THEREFORE, IF SEC. 10(C) HAD
EMPOWERED THE BOARD TO "TAKE SUCH AFFIRMATIVE ACTION AS WILL EFFECTUATE
THE POLICIES OF THIS ACT," THE RIGHT TO RESTORE TO A MAN EMPLOYMENT
WHICH WAS WRONGFULLY DENIED HIM COULD HARDLY BE DOUBTED.  EVEN WITHOUT
SUCH A MANDATE FROM CONGRESS THIS COURT COMPELLED REINSTATEMENT TO
ENFORCE THE LEGISLATIVE POLICY AGAINST DISCRIMINATION REPRESENTED BY
THE RAILWAY LABOR ACT.  TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S.
548.  FN6  ATTAINMENT OF A GREAT NATIONAL POLICY THROUGH EXPERT
ADMINISTRATION IN COLLABORATION WITH LIMITED JUDICIAL REVIEW MUST NOT
BE CONFINED WITHIN NARROW CANONS FOR EQUITABLE RELIEF DEEMED SUITABLE
BY CHANCELLORS IN ORDINARY PRIVATE CONTROVERSIES.  COMPARE VIRGINIAN
RY. V. FEDERATION, 300 U.S. 515, 552.  TO DIFFERENTIATE BETWEEN
DISCRIMINATION IN DENYING EMPLOYMENT AND IN TERMINATING IT, WOULD BE A
DIFFERENTIATION NOT ONLY WITHOUT SUBSTANCE BUT IN DEFIANCE OF THAT
AGAINST WHICH THE PROHIBITION OF DISCRIMINATION IS DIRECTED. 

BUT, WE ARE TOLD, THIS IS PRECISELY THE DIFFERENTIATION CONGRESS HAS
MADE.  IT HAS DONE SO, THE ARGUMENT RUNS, BY NOT DIRECTING THE BOARD
"TO TAKE SUCH AFFIRMATIVE ACTION AS WILL EFFECTUATE THE POLICIES OF
THIS ACT," SIMPLICITER, BUT, INSTEAD, BY EMPOWERING THE BOARD "TO TAKE
SUCH AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR
WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES OF THIS ACT."  TO
ATTRIBUTE SUCH A FUNCTION TO THE PARTICIPIAL PHRASE INTRODUCED BY
"INCLUDING" IS TO SHRIVEL A VERSATILE PRINCIPLE TO AN ILLUSTRATIVE
APPLICATION.  WE FIND NO JUSTIFICATION WHATEVER FOR ATTRIBUTING TO
CONGRESS SUCH A CASUISTIC WITHDRAWAL OF THE AUTHORITY WHICH, BUT FOR
THE ILLUSTRATION, IT CLEARLY HAS GIVEN THE BOARD.  THE WORD "INCLUDING"
DOES NOT LEND ITSELF TO SUCH DESTRUCTIVE SIGNIFICANCE.  HELVERING V.
MORGAN'S, INC., 293 U.S. 121, 125, NOTE. 

THIRD.  WE AGREE WITH THE COURT BELOW THAT THE RECORD WARRANTS THE
BOARD'S FINDING THAT THE STRIKERS WERE DENIED REEMPLOYMENT BECAUSE OF
THEIR UNION ACTIVITIES.  HAVING HELD THAT THE BOARD CAN NEUTRALIZE SUCH
DISCRIMINATION IN THE CASE OF MEN SEEKING NEW EMPLOYMENT, THE BOARD
CERTAINLY HAD THIS POWER IN REGARD TO THE STRIKERS.  AND SO WE NEED NOT
CONSIDER WHETHER THE ORDER CONCERNING THE STRIKERS SHOULD STAND, AS THE
COURT BELOW HELD IT SHOULD, EVEN THOUGH THAT AGAINST CURTIS AND
DAUGHERTY WOULD FALL. 

FOURTH.  THERE REMAIN FOR CONSIDERATION THE LIMITATIONS UPON THE
BOARD'S POWER TO UNDO THE EFFECTS OF DISCRIMINATION.  SPECIFICALLY, WE
HAVE THE QUESTION OF THE BOARD'S POWER TO ORDER EMPLOYMENT IN CASES
WHERE THE MEN DISCRIMINATED AGAINST HAD OBTAINED "SUBSTANTIALLY
EQUIVALENT EMPLOYMENT."  THE BOARD AS A MATTER OF FACT FOUND THAT NO
SUCH EMPLOYMENT HAD BEEN OBTAINED, BUT ALTERNATIVELY CONCLUDED THAT, IN
ANY EVENT, THE MEN SHOULD BE OFFERED EMPLOYMENT.  THE COURT BELOW, ON
THE OTHER HAND, IN HARMONY WITH THREE OTHER CIRCUITS, MOORESVILLE
COTTON MILLS V. LABOR BOARD, 94 F.2D 61(C.C.A.4TH); LABOR BOARD V.
BOTANY WORSTED MILLS, 106 F.2D 263(C.C.A. 3RD); LABOR BOARD V. CARLISLE
LUMBER CO., 99 F.2D 533(C.C.A.9TH), RULED THAT EMPLOYMENT NEED NOT BE
OFFERED ANY WORKER WHO HAD OBTAINED SUCH EMPLOYMENT, AND SINCE THE
RECORD AS TO SOME OF THE STRIKERS WHO HAD GONE TO WORK AT THE SHATTUCK
DENN COMPANY WAS INDECISIVE ON THIS ISSUE, REMANDED THE CASE TO THE
BOARD FOR FURTHER FINDINGS.  THIS ASPECT OF THE BOARD'S AUTHORITY
DEPENDS ON THE RELATION OF THE GENERAL REMEDIAL POWERS CONFERRED BY
SEC. 10(C) TO THE PROVISIONS OF SEC. 2(3). 

THE SPECIFIC PROVISIONS OF THE ACT OUT OF WHICH THE PROPER CONCLUSION
IS TO BE DRAWN SHOULD BE BEFORE US.  SECTION 10(C), AS WE ALREADY KNOW,
AUTHORIZES THE BOARD "TO TAKE SUCH AFFIRMATIVE ACTION, INCLUDING
REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE
THE POLICIES OF THIS ACT."  THE RELEVANT PORTIONS OF SEC. 2(3) FOLLOW:
"THE TERM 'EMPLOYEE' SHALL INCLUDE ANY EMPLOYEE, AND SHALL NOT BE
LIMITED TO THE EMPLOYEES OF A PARTICULAR EMPLOYER, UNLESS THE ACT
EXPLICITLY STATES OTHERWISE, AND SHALL INCLUDE ANY INDIVIDUAL WHOSE
WORK HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY CURRENT
LABOR DISPUTE OR BECAUSE OF ANY UNFAIR LABOR PRACTICE, AND WHO HAS NOT
OBTAINED ANY OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT." 

MERELY AS A MATTER OF TEXTUAL READING THESE PROVISIONS IN COMBINATION
PERMIT THREE POSSIBLE CONSTRUCTIONS:  (1) A CURTAILMENT OF THE POWERS
OF THE BOARD TO TAKE AFFIRMATIVE ACTION BY READING INTO SEC. 10(C) THE
RESTRICTIVE PHRASE OF SEC. 2(3) REGARDING A WORKER "WHO HAS NOT
OBTAINED ANY OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT";
(2) A COMPLETELY DISTRIBUTIVE READING OF SEC. 10(C) AND SEC. 2(3),
WHEREBY THE FACTOR OF "REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT"
IN NO WAY LIMITS THE BOARD'S USUAL POWER TO REQUIRE EMPLOYMENT TO BE
OFFERED A WORKER WHO HAS LOST EMPLOYMENT BECAUSE OF DISCRIMINATION; (3)
AN AVOIDANCE OF THIS EITHER-OR READING OF THE STATUTE BY PURSUING THE
CENTRAL CLUE TO THE BOARD'S POWERS - EFFECTUATION OF THE POLICIES OF
THE ACT - AND IN THAT LIGHT APPRAISING THE RELEVANCE OF A WORKER'S
HAVING OBTAINED "SUBSTANTIALLY EQUIVALENT EMPLOYMENT." 

DENIAL OF THE BOARD'S POWER TO ORDER OPPORTUNITIES OF EMPLOYMENT IN
THIS SITUATION DERIVES WHOLLY FROM AN INFILTRATION OF A PORTION OF SEC.
2(3) INTO SEC. 10(C).  THE ARGUMENT RUNS THUS: SEC. 10(C) SPECIFICALLY
REFERS TO "REINSTATEMENT OF EMPLOYEES"; THE LATTER PORTION OF SEC. 2(3)
REFERS TO AN "EMPLOYEE" AS A PERSON "WHO HAS NOT OBTAINED ANY OTHER
REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT"; THEREFORE, THERE CAN
BE NO REINSTATEMENT OF AN EMPLOYEE WHO HAS OBTAINED SUCH EMPLOYMENT. 
THE SYLLOGISM IS PERFECT.  BUT THIS IS A BIT OF VERBAL LOGIC FROM WHICH
THE MEANING OF THINGS HAS EVAPORATED.  IN THE FIRST PLACE, WE HAVE SEEN
THAT THE BOARD'S POWER TO ORDER AN OPPORTUNITY FOR EMPLOYMENT DOES NOT
DERIVE FROM THE PHRASE "INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR
WITHOUT BACK PAY," AND IS NOT LIMITED BY IT.  SECONDLY, INSOFAR AS ANY
ARGUMENT IS TO BE DRAWN FROM THE REFERENCE TO "EMPLOYEES" IN SEC.
10(C), IT MUST BE NOTED THAT THE REFERENCE IS TO "EMPLOYEES,"
UNQUALIFIED AND UNDIFFERENTIATED.  TO CIRCUMSCRIBE THE GENERAL CLASS,
"EMPLOYEES," WE MUST FIND AUTHORITY EITHER IN THE POLICY OF THE ACT OR
IN SOME SPECIFIC DELIMITING PROVISION OF IT. 

NOT ONLY IS THE ACT DEVOID OF A COMPREHENSIVE DEFINITION OF
"EMPLOYEE" RESTRICTIVE OF SEC. 10(C) BUT THE CONTRARY IS THE FACT.  THE
PROBLEM OF WHAT WORKERS WERE TO BE COVERED BY LEGAL REMEDIES FOR
ASSURING THE RIGHT OF SELF-ORGANIZATION WAS A FAMILIAR ONE WHEN
CONGRESS FORMULATED THE ACT.  THE POLICY WHICH IT EXPRESSED IN DEFINING
"EMPLOYEE" BOTH AFFIRMATIVELY AND NEGATIVELY, AS IT DID IN SEC. 2(3),
HAD BEHIND IT IMPORTANT PRACTICAL AND JUDICIAL EXPERIENCE.  "THE TERM
'EMPLOYEE'," THE SECTION READS, "SHALL INCLUDE ANY EMPLOYEE, AND SHALL
NOT BE LIMITED TO THE EMPLOYEES OF A PARTICULAR EMPLOYER, UNLESS THE
ACT EXPLICITLY STATES OTHERWISE.  ... "  THIS WAS NOT FORTUITOUS
PHRASING.  IT HAD REFERENCE TO THE CONTROVERSIES ENGENDERED BY
CONSTRUCTIONS PLACED UPON THE CLAYTON ACT AND KINDRED STATE LEGISLATION
IN RELATION TO THE FUNCTIONS OF WORKERS' ORGANIZATIONS AND THE DESIRE
NOT TO REPEAT THOSE CONTROVERSIES.  CF. NEW NEGRO ALLIANCE V. GROCERY
CO., 303 U.S. 552.  THE BROAD DEFINITION OF "EMPLOYEE," "UNLESS THE ACT
EXPLICITLY STATES OTHERWISE," AS WELL AS THE DEFINITION OF "LABOR
DISPUTE" IN SEC. 2(9), EXPRESSED THE CONVICTION OF CONGRESS "THAT
DISPUTES MAY ARISE REGARDLESS OF WHETHER THE DISPUTANTS STAND IN THE
PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE, AND THAT SELF-ORGANIZATION
OF EMPLOYEES MAY EXTEND BEYOND A SINGLE PLANT OR EMPLOYER."  H.R. REP.
NO. 1147, 74TH CONG., 1ST SESS., P. 9; SEE ALSO S. REP. NO. 573, 74TH
CONG., 1ST SESS., PP. 6, 7. 

THE REFERENCE IN SEC. 2(3) TO WORKERS WHO HAVE "OBTAINED REGULAR AND
SUBSTANTIALLY EQUIVALENT EMPLOYMENT" HAS A ROLE CONSONANT WITH SOME
PURPOSES OF THE ACT BUT NOT ONE DESTRUCTIVE OF THE BROAD DEFINITION OF
"EMPLOYEE" WITH WHICH SEC. 2(3) BEGINS.  IN DETERMINING WHETHER AN
EMPLOYER HAS REFUSED TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES
OF "HIS EMPLOYEES" IN VIOLATION OF SEC. 8(5) AND SEC. 9(A) IT IS OF
COURSE ESSENTIAL TO DETERMINE WHO CONSTITUTE "HIS EMPLOYEES."  ONE
ASPECT OF THIS IS COVERED BY SEC. 9(B) WHICH PROVIDES FOR DETERMINATION
OF THE APPROPRIATE BARGAINING UNIT.  AND ONCE THE UNIT IS SELECTED, THE
REFERENCE IN SEC. 2(3) TO WORKERS WHO HAVE OBTAINED EQUIVALENT
EMPLOYMENT COMES INTO OPERATION IN DETERMINING WHO SHALL BE TREATED AS
EMPLOYEES WITHIN THE UNIT. 

TO DENY THE BOARD POWER TO NEUTRALIZE DISCRIMINATION MERELY BECAUSE
WORKERS HAVE OBTAINED COMPENSATORY EMPLOYMENT WOULD CONFINE THE
"POLICIES OF THIS ACT" TO THE CORRECTION OF PRIVATE INJURIES.  THE
BOARD WAS NOT DEVISED FOR SUCH A LIMITED FUNCTION.  IT IS THE AGENCY OF
CONGRESS FOR TRANSLATING INTO CONCRETENESS THE PURPOSE OF SAFEGUARDING
AND ENCOURAGING THE RIGHT OF SELF-ORGANIZATION.  THE BOARD, WE HAVE
HELD VERY RECENTLY, DOES NOT EXIST FOR THE "ADJUDICATION OF PRIVATE
RIGHTS"; IT "ACTS IN A PUBLIC CAPACITY TO GIVE EFFECT TO THE DECLARED
PUBLIC POLICY OF THE ACT TO ELIMINATE AND PREVENT OBSTRUCTIONS TO
INTERSTATE COMMERCE BY ENCOURAGING COLLECTIVE BARGAINING."  NATIONAL
LICORICE CO. V. LABOR BOARD, 309 U.S. 350, 362; AND SEE AMALGAMATED
UTILITY WORKERS V. EDISON CO., 309 U.S. 261.  TO BE SURE, REINSTATEMENT
IS NOT NEEDED TO REPAIR THE ECONOMIC LOSS OF A WORKER WHO, AFTER
DISCRIMINATION, HAS OBTAINED AN EQUALLY PROFITABLE JOB.  BUT TO LIMIT
THE SIGNIFICANCE OF DISCRIMINATION MERELY TO QUESTIONS OF MONETARY LOSS
TO WORKERS WOULD THWART THE CENTRAL PURPOSE OF THE ACT, DIRECTED AS
THAT IS TOWARD THE ACHIEVEMENT AND MAINTENANCE OF WORKERS' SELF
ORGANIZATION.  THAT THERE ARE FACTORS OTHER THAN LOSS OF WAGES TO A
PARTICULAR WORKER TO BE CONSIDERED IS SUGGESTED EVEN BY A MEAGER
KNOWLEDGE OF INDUSTRIAL AFFAIRS.  THUS, TO GIVE ONLY ONE ILLUSTRATION,
IF MEN WERE DISCHARGED WHO WERE LEADING EFFORTS AT ORGANIZATION IN A
PLANT HAVING A LOW WAGE SCALE, THEY WOULD NOT UNNATURALLY BE COMPELLED
BY THEIR ECONOMIC CIRCUMSTANCES TO SEEK AND OBTAIN EMPLOYMENT ELSEWHERE
AT EQUIVALENT WAGES.  IN SUCH A SITUATION, TO DENY THE BOARD POWER TO
WIPE OUT THE PRIOR DISCRIMINATION BY ORDERING THE EMPLOYMENT OF SUCH
WORKERS WOULD SANCTION A MOST EFFECTIVE WAY OF DEFEATING THE RIGHT OF
SELF-ORGANIZATION. 

THEREFORE, THE MERE FACT THAT THE VICTIM OF DISCRIMINATION HAS
OBTAINED EQUIVALENT EMPLOYMENT DOES NOT ITSELF PRECLUDE THE BOARD FROM
UNDOING THE DISCRIMINATION AND REQUIRING EMPLOYMENT.  BUT NEITHER DOES
THIS REMEDY AUTOMATICALLY FLOW FROM THE ACT ITSELF WHEN DISCRIMINATION
HAS BEEN FOUND.  A STATUTE EXPRESSIVE OF SUCH LARGE PUBLIC POLICY AS
THAT ON WHICH THE NATIONAL LABOR RELATIONS BOARD IS BASED MUST BE
BROADLY PHRASED AND NECESSARILY CARRIES WITH IT THE TASK OF
ADMINISTRATIVE APPLICATION.  THERE IS AN AREA PLAINLY COVERED BY THE
LANGUAGE OF THE ACT AND AN AREA NO LESS PLAINLY WITHOUT IT.  BUT IN THE
NATURE OF THINGS CONGRESS COULD NOT CATALOGUE ALL THE DEVICES AND
STRATAGEMS FOR CIRCUMVENTING THE POLICIES OF THE ACT.  NOR COULD IT
DEFINE THE WHOLE GAMUT OF REMEDIES TO EFFECTUATE THESE POLICIES IN AN
INFINITE VARIETY OF SPECIFIC SITUATIONS.  CONGRESS MET THESE
DIFFICULTIES BY LEAVING THE ADAPTATION OF MEANS TO END TO THE EMPIRIC
PROCESS OF ADMINISTRATION.  THE EXERCISE OF THE PROCESS WAS COMMITTED
TO THE BOARD, SUBJECT TO LIMITED JUDICIAL REVIEW.  BECAUSE THE RELATION
OF REMEDY TO POLICY IS PECULIARLY A MATTER FOR ADMINISTRATIVE
COMPETENCE, COURTS MUST NOT ENTER THE ALLOWABLE AREA OF THE BOARD'S
DISCRETION AND MUST GUARD AGAINST THE DANGER OF SLIDING UNCONSCIOUSLY
FROM THE NARROW CONFINES OF LAW INTO THE MORE SPACIOUS DOMAIN OF
POLICY.  ON THE OTHER HAND, THE POWER WITH WHICH CONGRESS INVESTED THE
BOARD IMPLIES RESPONSIBILITY - THE RESPONSIBILITY OF EXERCISING ITS
JUDGMENT IN EMPLOYING THE STATUTORY POWERS. 

THE ACT DOES NOT CREATE RIGHTS FOR INDIVIDUALS WHICH MUST BE
VINDICATED ACCORDING TO A RIGID SCHEME OF REMEDIES.  IT ENTRUSTS TO AN
EXPERT AGENCY THE MAINTENANCE AND PROMOTION OF INDUSTRIAL PEACE. 
ACCORDING TO THE EXPERIENCE REVEALED BY THE BOARD'S DECISIONS, THE
EFFECTUATION OF THIS IMPORTANT POLICY GENERALLY REQUIRES NOT ONLY
COMPENSATION FOR THE LOSS OF WAGES BUT ALSO OFFERS OF EMPLOYMENT TO THE
VICTIMS OF DISCRIMINATION.  ONLY THUS CAN THERE BE A RESTORATION OF THE
SITUATION, AS NEARLY AS POSSIBLE, TO THAT WHICH WOULD HAVE OBTAINED BUT
FOR THE ILLEGAL DISCRIMINATION.  BUT EVEN WHERE A WORKER HAS NOT
SECURED EQUIVALENT EMPLOYMENT, THE BOARD, UNDER PARTICULAR
CIRCUMSTANCES, MAY REFUSE TO ORDER HIS EMPLOYMENT BECAUSE IT WOULD NOT
EFFECTUATE THE POLICIES OF THE ACT.  IT HAS, FOR EXAMPLE, DECLINED TO
DO SO IN THE CASE OF A WORKER WHO HAD BEEN DISCHARGED FOR UNION
ACTIVITIES AND HAD SOUGHT REEMPLOYMENT AFTER HAVING OFFERED HIS
SERVICES AS A LABOR SPY.  MATTER OF THOMPSON CABINET CO., 11 N.L.R.B.
1106, 1116-17.   FROM THE BEGINNING THE BOARD HAS RECOGNIZED THAT A
WORKER WHO HAS OBTAINED EQUIVALENT EMPLOYMENT IS IN A DIFFERENT
POSITION FROM ONE WHO HAS LOST HIS JOB AS WELL AS HIS WAGES THROUGH AN
EMPLOYER'S UNFAIR LABOR PRACTICE.  IN EARLY DECISIONS, THE BOARD DID
NOT ORDER REINSTATEMENT OF WORKERS WHO HAD SECURED SUCH EQUIVALENT
EMPLOYMENT.  SEE MATTER OF RABHOR CO., INC., 1 N.L.R.B. 470, 481;
MATTER OF JEFFERY-DE WITT INSULATOR CO., 1 N.L.R.B. 618, 628.  IT
APPARENTLY FOCUSSED ON THE ABSENCE OF LOSS OF WAGES IN DETERMINING THE
APPLICABLE REMEDY.  BUT OTHER FACTORS MAY WELL ENTER INTO THE
APPROPRIATENESS OF ORDERING THE OFFENDING EMPLOYER TO OFFER EMPLOYMENT
TO ONE ILLEGALLY DENIED IT.  REINSTATEMENT MAY BE THE EFFECTIVE
ASSURANCE OF THE RIGHT OF SELF-ORGANIZATION.  AGAIN, WITHOUT SUCH A
REMEDY INDUSTRIAL PEACE MIGHT BE ENDANGERED BECAUSE WORKERS WOULD BE
RESENTFUL OF THEIR INABILITY TO RETURN TO JOBS TO WHICH THEY MAY HAVE
BEEN ATTACHED AND FROM WHICH THEY WERE WRONGFULLY DISCHARGED.  ON THE
OTHER HAND, IT MAY BE, AS WAS URGED ON BEHALF OF THE BOARD IN
MOORESVILLE COTTON MILLS V. LABOR BOARD, 97 F.2D 959, 963, THAT, IN
MAKING SUCH AN ORDER FOR REINSTATEMENT THE NECESSITY FOR MAKING ROOM
FOR THE OLD EMPLOYEES BY DISCHARGING NEW ONES, AS WELL AS QUESTIONS
AFFECTING THE DISLOCATION OF THE BUSINESS, OUGHT TO BE CONSIDERED.  ALL
THESE AND OTHER FACTORS OUTSIDE OUR DOMAIN OF EXPERIENCE MAY COME INTO
PLAY.  THEIR RELEVANCE IS FOR THE BOARD, NOT FOR US.  IN THE EXERCISE
OF ITS INFORMED DISCRETION THE BOARD MAY FIND THAT EFFECTUATION OF THE
ACT'S POLICIES MAY OR MAY NOT REQUIRE REINSTATEMENT.  WE HAVE NO
WARRANT FOR SPECULATING ON MATTERS OF FACT THE DETERMINATION OF WHICH
CONGRESS HAS ENTRUSTED TO THE BOARD.  ALL WE ARE ENTITLED TO ASK IS
THAT THE STATUTE SPEAK THROUGH THE BOARD WHERE THE STATUTE DOES NOT
SPEAK FOR ITSELF. 

THE ONLY LIGHT WE HAVE ON THE BOARD'S DECISION IN THIS CASE IS ITS
STATEMENT THAT, IF ANY OF THE WORKERS DISCRIMINATED AGAINST HAD
OBTAINED SUBSTANTIALLY EQUIVALENT EMPLOYMENT, THEY SHOULD BE OFFERED
EMPLOYMENT "FOR THE REASONS SET FORTH IN" MATTER OF EAGLE-PICHER MINING
& SMELTING CO., 16 N.L.R.B. 727, 833.  BUT IN THAT CASE THE BOARD
MERELY CONCLUDED THAT SEC. 2(3) DID NOT DENY IT THE POWER TO ORDER
REINSTATEMENT; IT DID NOT CONSIDER THE APPROPRIATENESS OF ITS
EXERCISE.  THUS THE BOARD DETERMINED ONLY THE DRY LEGAL QUESTION OF ITS
POWER, WHICH WE SUSTAIN; IT DID NOT CONSIDER WHETHER IN EMPLOYING THAT
POWER THE POLICIES OF THE ACT WOULD BE ENFORCED.  THE COURT BELOW
FOUND, AND THE BOARD HAS NOT CHALLENGED THE FINDING, THAT THE BOARD
LEFT THE ISSUE OF EQUIVALENCE OF JOBS AT THE SHATTUCK DENN COMPANY IN
DOUBT, AND REMANDED THE ORDER TO THE BOARD FOR FURTHER FINDINGS.  OF
COURSE, IF THE BOARD FINDS THAT EQUIVALENT EMPLOYMENT HAS NOT BEEN
OBTAINED, IT IS WITHIN ITS PROVINCE TO REQUIRE OFFERS OF REEMPLOYMENT
IN ACCORDANCE WITH ITS GENERAL CONCLUSION THAT A WORKER'S LOSS IN WAGES
AND IN GENERAL WORKING CONDITIONS MUST BE MADE WHOLE.  EVEN IF IT
SHOULD FIND THAT EQUIVALENT JOBS WERE SECURED BY THE MEN WHO SUFFERED
FROM DISCRIMINATION, IT MAY ORDER EMPLOYMENT AT PHELPS DODGE IF IT
FINDS THAT TO DO SO WOULD EFFECTUATE THE POLICIES OF THE ACT.  WE
BELIEVE THAT THE PROCEDURE WE HAVE INDICATED WILL LIKEWISE EFFECTUATE
THE POLICIES OF THE ACT BY MAKING WORKABLE THE SYSTEM OF RESTRICTED
JUDICIAL REVIEW IN RELATION TO THE WIDE DISCRETIONARY AUTHORITY WHICH
CONGRESS HAS GIVEN THE BOARD. 

FROM THE RECORD OF THE PRESENT CASE WE CANNOT REALLY TELL WHY THE
BOARD HAS ORDERED REINSTATEMENT OF THE STRIKERS WHO OBTAINED SUBSEQUENT
EMPLOYMENT.  THE BOARD FIRST FOUND THAT THE MEN HAD NOT OBTAINED
SUBSTANTIALLY EQUIVALENT EMPLOYMENT WITHIN THE MEANING OF SEC. 2(3);
LATER IT CONCLUDED THAT EVEN IF THEY HAD OBTAINED SUCH EMPLOYMENT IT
WOULD ORDER THEIR REINSTATEMENT.  IT DID SO, HOWEVER, AS WE HAVE NOTED,
MERELY BECAUSE IT ASSERTED ITS LEGAL POWER SO TO DO.  WHEN THE COURT
BELOW HELD THAT PROOF DID NOT SUPPORT THE BOARD'S FINDING CONCERNING
EQUIVALENCE OF EMPLOYMENT AT SHATTUCK DENN AND REMANDED THE CASE TO THE
BOARD FOR ADDITIONAL EVIDENCE ON THAT ISSUE, THE BOARD TOOK THIS ISSUE
OUT OF THE CASE BY EXPRESSLY DECLINING TO ASK FOR ITS REVIEW HERE. 

THE ADMINISTRATIVE PROCESS WILL BEST BE VINDICATED BY CLARITY IN ITS
EXERCISE.  SINCE CONGRESS HAS DEFINED THE AUTHORITY OF THE BOARD AND
THE PROCEDURE BY WHICH IT MUST BE ASSERTED AND HAS CHARGED THE FEDERAL
COURTS WITH THE DUTY OF REVIEWING THE BOARD'S ORDERS (SEC. 10(E) AND
(F)), IT WILL AVOID NEEDLESS LITIGATION AND MAKE FOR EFFECTIVE AND
EXPEDITIOUS ENFORCEMENT OF THE BOARD'S ORDER TO REQUIRE THE BOARD TO
DISCLOSE THE BASIS OF ITS ORDER.  WE DO NOT INTEND TO ENTER THE
PROVINCE THAT BELONGS TO THE BOARD, NOR DO WE DO SO.  ALL WE ASK OF THE
BOARD IS TO GIVE CLEAR INDICATION THAT IT HAS EXERCISED THE DISCRETION
WITH WHICH CONGRESS HAS EMPOWERED IT.  THIS IS TO AFFIRM MOST
EMPHATICALLY THE AUTHORITY OF THE BOARD. 

FIFTH.  AS PART OF ITS REMEDIAL ACTION AGAINST THE UNFAIR LABOR
PRACTICES, THE BOARD ORDERED THAT WORKERS WHO HAD BEEN DENIED
EMPLOYMENT BE MADE WHOLE FOR THEIR LOSS OF PAY.  IN SPECIFIC TERMS, THE
BOARD ORDERED PAYMENT TO THE MEN OF A SUM EQUAL TO WHAT THEY NORMALLY
WOULD HAVE EARNED FROM THE DATE OF THE DISCRIMINATION TO THE TIME OF
EMPLOYMENT LESS THEIR EARNINGS DURING THIS PERIOD.  THE COURT BELOW
ADDED A FURTHER DEDUCTION OF AMOUNTS WHICH THE WORKERS "FAILED WITHOUT
EXCUSE TO EARN," AND THE BOARD HERE CHALLENGES THIS MODIFICATION. 

MAKING THE WORKERS WHOLE FOR LOSSES SUFFERED ON ACCOUNT OF AN UNFAIR
LABOR PRACTICE IS PART OF THE VINDICATION OF THE PUBLIC POLICY WHICH
THE BOARD ENFORCES.  SINCE ONLY ACTUAL LOSSES SHOULD BE MADE GOOD, IT
SEEMS FAIR THAT DEDUCTIONS SHOULD BE MADE NOT ONLY FOR ACTUAL EARNINGS
BY THE WORKER BUT ALSO FOR LOSSES WHICH HE WILLFULLY INCURRED.  TO THIS
THE BOARD COUNTERS THAT TO APPLY THIS ABSTRACTLY JUST DOCTRINE OF
MITIGATION OF DAMAGES TO THE SITUATIONS BEFORE IT, OFTEN INVOLVING
SUBSTANTIAL NUMBERS OF WORKMEN, WOULD PUT ON THE BOARD DETAILS TOO
BURDENSOME FOR EFFECTIVE ADMINISTRATION.  SIMPLICITY OF ADMINISTRATION
IS THUS THE JUSTIFICATION FOR DEDUCTING ONLY ACTUAL EARNINGS AND FOR
AVOIDING THE DOMAIN OF CONTROVERSY AS TO WAGES THAT MIGHT HAVE BEEN
EARNED. 

BUT THE ADVANTAGES OF A SIMPLE RULE MUST BE BALANCED AGAINST THE
IMPORTANCE OF TAKING FAIR ACCOUNT, IN A CIVILIZED LEGAL SYSTEM, OF
EVERY SOCIALLY DESIRABLE FACTOR IN THE FINAL JUDGMENT.  THE BOARD, WE
BELIEVE, OVERESTIMATES ADMINISTRATIVE DIFFICULTIES AND UNDERESTIMATES
ITS ADMINISTRATIVE RESOURCEFULNESS.  HERE AGAIN WE MUST AVOID THE
RIGIDITIES OF AN EITHER-OR RULE.  THE REMEDY OF BACK PAY, IT MUST BE
REMEMBERED, IS ENTRUSTED TO THE BOARD'S DISCRETION; IT IS NOT
MECHANICALLY COMPELLED BY THE ACT.  AND IN APPLYING ITS AUTHORITY OVER
BACK PAY ORDERS, THE BOARD HAS NOT USED STEREOTYPED FORMULAS BUT HAS
AVAILED ITSELF OF THE FREEDOM GIVEN IT BY CONGRESS TO ATTAIN JUST
RESULTS IN DIVERSE, COMPLICATED SITUATIONS.  FN7  SEE (1939) 48 YALE
L.J. 1265.  THE BOARD HAS A WIDE DISCRETION TO KEEP THE PRESENT MATTER
WITHIN REASONABLE BOUNDS THROUGH FLEXIBLE PROCEDURAL DEVICES.  THE
BOARD WILL THUS HAVE IT WITHIN ITS POWER TO AVOID DELAYS AND
DIFFICULTIES INCIDENT TO PASSING ON REMOTE AND SPECULATIVE CLAIMS BY
EMPLOYERS, WHILE AT THE SAME TIME IT MAY GIVE APPROPRIATE WEIGHT TO A
CLEARLY UNJUSTIFIABLE REFUSAL TO TAKE DESIRABLE NEW EMPLOYMENT.  BY
LEAVING SUCH AN ADJUSTMENT TO THE ADMINISTRATIVE PROCESS WE HAVE IN
MIND NOT SO MUCH THE MINIMIZATION OF DAMAGES AS THE HEALTHY POLICY OF
PROMOTING PRODUCTION AND EMPLOYMENT.  THIS CONSIDERATION IN NO WAY
WEAKENS THE ENFORCEMENT OF THE POLICIES OF THE ACT BY EXERTING COERCION
AGAINST MEN WHO HAVE BEEN UNFAIRLY DENIED EMPLOYMENT TO TAKE EMPLOYMENT
ELSEWHERE AND LATER, BECAUSE OF THEIR NEW EMPLOYMENT, DECLARING THEM
BARRED FROM RETURNING TO THE JOBS OF THEIR CHOICE.  THIS IS SO BECAUSE
WE HOLD THAT THE POWER OF ORDERING OFFERS OF EMPLOYMENT RESTS WITH THE
BOARD EVEN AS TO WORKERS WHO HAVE OBTAINED EQUIVALENT EMPLOYMENT. 

BUT THOUGH THE EMPLOYER SHOULD BE ALLOWED TO GO TO PROOF ON THIS
ISSUE, THE BOARD'S ORDER SHOULD NOT HAVE BEEN MODIFIED BY THE COURT
BELOW.  THE MATTER SHOULD HAVE BEEN LEFT TO THE BOARD FOR DETERMINATION
BY IT PRIOR TO FORMULATING ITS ORDER AND SHOULD NOT BE LEFT FOR
POSSIBLE FINAL SETTLEMENT IN CONTEMPT PROCEEDINGS. 

SIXTH.  OTHER MINOR OBJECTIONS TO THE BOARD'S ORDER WERE FOUND
WITHOUT SUBSTANCE BELOW.  AFTER CAREFUL CONSIDERATION WE AGREE WITH
THIS DISPOSITION OF THESE QUESTIONS, AND DO NOT FEEL THAT FURTHER
DISCUSSION IS REQUIRED. 

THE DECREE BELOW SHOULD BE MODIFIED IN ACCORDANCE WITH THIS OPINION,
REMANDING TO THE BOARD THE TWO MATTERS DISCUSSED UNDER FOURTH AND FIFTH
HEREIN, FOR THE BOARD'S DETERMINATION OF THESE ISSUES.  MODIFIED. 

FN1  UNITED STATES INDUSTRIAL COMMISSION, FINAL REPORT (1902) P. 892;
ANTHRACITE COAL STRIKE COMMISSION, REPORT TO THE PRESIDENT ON THE COAL
STRIKE OF MAY-OCTOBER, 1902, S. DOC. NO. 6, 58TH CONG., SPEC. SESS., P.
78; LAIDLER, BOYCOTTS AND THE LABOR STRUGGLE (1913) P. 39 ET SEQ.;
UNITED STATES COMMISSION ON INDUSTRIAL RELATIONS, FINAL REPORT (1916)
S. DOC. NO. 415, 64TH CONG., 1ST SESS., P. 118; INTERCHURCH WORLD
MOVEMENT, COMMISSION OF INQUIRY, REPORT ON THE STEEL STRIKE OF
1919(1920) PP. 27, 209, 219; BONNET, EMPLOYERS' ASSOCIATIONS IN THE
UNITED STATES (1922) PP. 80, 296, 550; GULICK, LABOR POLICY OF THE
UNITED STATES STEEL CORPORATION (1924) PP. 125-27; CUMMINS, THE LABOR
PROBLEM IN THE UNITED STATES (2D ED. 1935) P. 351; BUREAU OF LABOR
INVESTIGATION OF WESTERN UNION AND POSTAL TELEGRAPH-CABLE COMPANIES
(1909) S. DOC. NO. 725, 60TH CONG., 2D SESS., PP. 39-41; S. REP. NO.
46, PART 1, 75TH CONG., 1ST SESS., P. 8. 

FN2  30 STAT. 424; SEE UNITED STATES STRIKE COMMISSION, REPORT ON THE
CHICAGO STRIKE OF JUNE-JULY, 1894, S. DOC. NO. 7, 53D CONG., 3D SESS.;
OLNEY, DISCRIMINATION AGAINST UNION LABOR - LEGAL?  (1908) 42 AMER.  L.
REV. 161. 

FN3  ALA. CODE ANN. (1928) SEC. 3451; ARK., ACTS OF 1905, ACT 214, P.
545; CAL. LABOR CODE (1937) SECS. 1050-54; COLO. STAT. ANN. (1935) C.
97, SECS. 88, 89, 93; CONN. GEN. STAT. (1930) SECS. 6210-11; FLA. COMP.
GEN. LAWS ANN. (1927) SEC. 6606; ILL. ANN. STAT. (1935) C. 38, SEC.
139; IND. STAT. ANN. (1933) SECS. 40-301, 40-302; IOWA CODE (1939)
SECS. 13253-54; KAN. GEN. STAT. (1935) SECS. 44-117, 44-118, 44-119;
ME. LAWS (1933) C. 108; MINN. STAT. (1927) SEC. 10378; MISS.  CODE ANN.
(1927) SECS. 9271-74; MO. REV. STAT. (1939) SEC. 4643; MONT. REV. CODE
ANN. (1935) SECS. 3093-94; NEV. COMP. LAWS (1929) SECS. 10461-63; N.M.
STAT. ANN. (1929) SECS. 35-4613, 35-4614, 35-4615; NEW YORK LABOR LAW
SEC. 704(2), (9); N.C. CODE ANN. (1939) SECS. 4477-78; N.D. COMP. LAWS
ANN. (1913) SEC. 9446; OKLA. STAT. ANN. (1937) TIT. 40, SECS. 172-73;
ORE.  COMP.  LAWS ANN. (1940) SECS. 102-806, 102-807; TEX. STAT. (1936)
ARTS. 1616-1618; UTAH REV. STAT. ANN. (1933) SECS. 49-5-1, 49-5-2; VA.
CODE (1936) SEC. 1817; WASH. REV. STAT. ANN. (1932) SEC. 7599; WIS.
STAT. (1939) SEC. 343.682.  SEE (1937) 37 COL. L. REV. 816, 819; WITTE,
THE GOVERNMENT IN LABOR DISPUTES (1932) PP. 213-18. 

FN4  AWARDS OF THE NATIONAL WAR LABOR BOARD:  SLOSS-SHEFFIELD STEEL &
IRON CO., DOCKET NO. 12.  SEE ALSO OMAHA & COUNCIL BLUFFS STREET RY.,
DOCKET NO. 154; SMITH & WESSON CO., DOCKET NO. 273.  CF. GREGG, THE
NATIONAL WAR LABOR BOARD (1919) 33 HARV. L. REV. 39. 

FN5  RATHER CLEARLY THE HOUSE COMMITTEE WHICH REPORTED THE BILL VIEWED
THE WORD "HIRE" AS COVERING THE SITUATION BEFORE US.  H.R. REP. NO.
1147, 74TH CONG., 1ST SESS., P. 19.  THE CHAIRMAN OF THE SENATE
COMMITTEE EXPRESSLY STATED DURING THE DEBATE THAT "NO EMPLOYER MAY
DISCRIMINATE IN HIRING A MAN WHETHER HE BELONGS TO A UNION OR NOT, AND
WITHOUT REGARD TO WHAT UNION HE BELONGS (EXCEPT WHERE THERE IS A VALID
CLOSED SHOP AGREEMENT)."  79 CONG. REC. 7674.  FOR FURTHER MATERIALS
BEARING ON THE LEGISLATIVE HISTORY SEE THE ABLE OPINION OF JUDGE
MAGRUDER IN LABOR BOARD V. WAUMBEC MILLS, 114 F.2D 226. 

FN6  AN INJUNCTION HAD BEEN GRANTED AGAINST INTERFERENCE WITH THE
WORKERS' SELF-ORGANIZATION AND REINSTATEMENT WAS ORDERED IN CONTEMPT
PROCEEDINGS AFTER EMPLOYEES HAD BEEN DISCHARGED FOR UNION ACTIVITIES. 
SURELY, A COURT OF EQUITY HAS NO GREATER INHERENT AUTHORITY IN THIS
REGARD THAN WAS CONVEYED TO THE BOARD BY THE BROAD GRANT OF ALL SUCH
REMEDIAL POWERS AS WILL, FROM CASE TO CASE, TRANSLATE INTO ACTUALITY
THE POLICIES OF THE ACT. 

FN7  IN ACCORDANCE WITH THE BOARD'S GENERAL PRACTICE, DEDUCTIONS WERE
MADE IN THE PRESENT CASE FOR AMOUNTS EARNED DURING THE PERIOD OF THE
BACK PAY AWARD.  BUT THE DEDUCTIONS HAVE BEEN LIMITED TO EARNINGS
DURING THE HOURS WHEN THE WORKER WOULD HAVE BEEN EMPLOYED BY THE
EMPLOYER IN QUESTION.  MATTER OF PUSEY, MAYNES & BREISH CO., 1 N.L.R.B.
482; MATTER OF NATIONAL MOTOR BEARING CO., 5 N.L.R.B. 409.  AND ONLY
"NET EARNINGS" ARE DEDUCTED, ALLOWANCE BEING MADE FOR THE EXPENSE OF
GETTING NEW EMPLOYMENT WHICH, BUT FOR THE DISCRIMINATION, WOULD NOT
HAVE BEEN NECESSARY.  MATTER OF CROSSETT LUMBER CO., 8 N.L.R.B. 440. 

EVEN THOUGH A STRIKE IS CAUSED BY AN UNFAIR LABOR PRACTICE THE BOARD
DOES NOT AWARD BACK PAY DURING THE PERIOD OF THE STRIKE.  MATTER OF
SUNSHINE HOSIERY MILLS, 1 N.L.R.B. 664.  EMPLOYEES WHO ARE
DISCRIMINATORILY DISCHARGED ARE TREATED AS STRIKERS IF DURING A STRIKE
THEY REFUSE AN UNCONDITIONAL OFFER OF REINSTATEMENT.  MATTER OF HARTER
CORP., 8 N.L.R.B. 391.  ORIGINALLY BACK PAY WAS ORDERED FROM THE DATE
OF APPLICATION FOR REINSTATEMENT, MATTER OF SUNSHINE HOSIERY MILLS,
SUPRA, BUT LATER ORDERS HAVE STARTED BACK PAY FIVE DAYS AFTER
APPLICATION.  MATTER OF TINY TOWN TOGS, INC., 7 N.L.R.B. 54.    IF
THERE IS UNJUSTIFIED DELAY IN FILING CHARGES BEFORE THE BOARD, A
DEDUCTION IS MADE FOR THE PERIOD OF THE DELAY.  MATTER OF INLAND LIME &
STONE CO., 8 N.L.R.B. 944.  SIMILAR ACTION IS TAKEN WHEN A CASE IS
REOPENED AFTER HAVING BEEN CLOSED OR WITHDRAWN.  MATTER OF C.G. CONN,
LTD., 10 N.L.R.B. 498.  AND IF THE TRIAL EXAMINER RULES IN FAVOR OF THE
EMPLOYER AND THE BOARD REVERSES THE RULING, NO BACK PAY IS ORDERED FOR
THE PERIOD WHEN THE EXAMINER'S RULING STOOD UNREVERSED.  MATTER OF E.R.
HAFFELFINGER CO., 1 N.L.R.B. 760; AND SEE THE ORDER IN THE PRESENT
CASE. 

THE BOARD HAS REFUSED TO ORDER ANY BACK PAY WHERE DISCRIMINATORY
DISCHARGES WERE MADE WITH HONEST BELIEF THAT THEY WERE REQUIRED BY AN
INVALID CLOSED-SHOP CONTRACT.  MATTER OF MCKESSON & ROBBINS, INC., 19
N.L.R.B. 778. 

IF THE BUSINESS CONDITIONS WOULD HAVE CAUSED THE PLANT TO BE CLOSED
OR PERSONNEL TO BE REDUCED, BACK PAY IS AWARDED ONLY FOR THE PERIOD
WHICH THE WORKER WOULD HAVE WORKED IN THE ABSENCE OF DISCRIMINATION. 
MATTER OF RAY NICHOLS, INC., 15 N.L.R.B. 846.  AT TIMES FLUCTUATIONS IN
PERSONNEL SO COMPLICATE THE SITUATION THAT A FORMULA HAS TO BE DEVISED
FOR THE DISTRIBUTION OF A LUMP SUM AMONG THE WORKERS WHO HAVE BEEN
DISCRIMINATED AGAINST.  MATTER OF EAGLE-PICHER MINING & SMELTING CO.,
16 N.L.R.B. 727. 

THE RATE OF PAY USED IN COMPUTING AWARDS IS GENERALLY THAT AT THE
TIME OF DISCRIMINATION, BUT ADJUSTMENTS MAY BE MADE FOR SUBSEQUENT
CHANGES.  MATTER OF LONE STAR BAG & BAGGING CO., 8 N.L.R.B. 244; CF.
MATTER OF ACME AIR APPLIANCE CO., 10 N.L.R.B. 1385.  NORMAL EARNINGS IN
TIPS OR BONUSES HAVE BEEN TAKEN INTO ACCOUNT.  MATTER OF CLUB TROIKA, 2
N.L.R.B. 90; MATTER OF CENTRAL TRUCK LINES, 3 N.L.R.B. 317. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THE CASE. 

MR. JUSTICE MURPHY: 

WHILE I FULLY APPROVE THE DISPOSITION OF THE FIRST THREE ISSUES IN
THE OPINION JUST ANNOUNCED, I CANNOT ASSENT TO THE MODIFICATION OF THAT
PART OF THE BOARD'S ORDER WHICH REQUIRED REINSTATEMENT OF CERTAIN
EMPLOYEES, OR TO THE LIMITATION IMPOSED ON THE BOARD'S POWER TO MAKE
BACK PAY AWARDS. 

FIRST.  THE BOARD IS NOW DIRECTED TO RECONSIDER ITS ORDER OF
REINSTATEMENT MERELY BECAUSE, IN THE COURSE OF ITS RECITAL, IT STATED
THAT EVEN IF THE EMPLOYEES IN QUESTION HAD SECURED OTHER SUBSTANTIALLY
EQUIVALENT EMPLOYMENT IT WOULD NEVERTHELESS ORDER THEIR REINSTATEMENT
FOR THE REASONS SET FORTH IN MATTER OF EAGLE-PICHER MINING & SMELTING
CO., 16 N.L.R.B. 727.  FN1  THERE IS NEITHER CLAIM NOR EVIDENCE THAT
REINSTATEMENT WILL NOT EFFECTUATE THE POLICIES OF THE ACT.  THERE IS NO
SUGGESTION THAT THE ORDER THE BOARD ISSUED WAS WRONG OR BEYOND ITS
POWER.  THAT ORDER IS CHALLENGED ONLY BECAUSE THE STATEMENT AND
REFERENCE TO THE EAGLE-PICHER CASE ARE SAID TO DEMONSTRATE THAT THE
BOARD ORDERED REINSTATEMENT MECHANICALLY DUE TO A MISCONCEPTION OF ITS
FUNCTIONS UNDER THE STATUTE, AND THAT IT DID NOT CONSIDER WHETHER
REINSTATEMENT WOULD EFFECTUATE THE POLICIES OF THE ACT. 

EVEN IF IT BE ASSUMED THAT THIS RECITAL IMPORTS AN INACCURATE
APPRAISAL OF THE BOARD'S POWER, AN ASSUMPTION WHICH I BELIEVE IS
WITHOUT JUSTIFICATION, MODIFICATION OF ITS ORDER IS NOT A NECESSARY
CONSEQUENCE.  THE QUESTION BEFORE US IS WHETHER THE ORDER THE BOARD
ISSUED WAS WITHIN ITS POWER.  THERE IS NO OCCASION NOW TO DETERMINE
WHAT DISPOSITION SHOULD BE MADE OF AN ORDER WHICH WAS NOT AN EXERCISE
OF THE BOARD'S ADMINISTRATIVE DISCRETION, OR TO INFER THAT THE BOARD
MUST INVESTIGATE THE SUBSTANTIAL EQUIVALENCY OF OTHER EMPLOYMENT BEFORE
IT MAY ORDER REINSTATEMENT.  SUFFICE TO SAY, THE BOARD FOUND THAT
CERTAIN EMPLOYEES HAD BEEN THE OBJECTS OF UNFAIR LABOR PRACTICES AND
THAT IT WOULD EFFECTUATE THE POLICIES OF THE ACT TO ORDER THEIR
REINSTATEMENT.  IT EXPRESSLY RESTED ITS ORDER UPON THOSE FINDINGS. 

THE CIRCUMSTANCES OCCASIONING THE LATTER FINDING ARE CONVINCING
EVIDENCE THAT THE BOARD NOT ONLY WAS REQUIRED TO BUT DID EXERCISE
DISCRETION IN THE FORMULATION OF ITS ORDER OF REINSTATEMENT. 
THROUGHOUT THE HEARING THE EMPLOYER'S COUNSEL SOUGHT TO SHOW BY CROSS
EXAMINING THEM THAT THE COMPLAINING EMPLOYEES WERE NOT ENTITLED TO
REINSTATEMENT.  SHORTLY AFTER THAT EXAMINATION COMMENCED, THE TRIAL
EXAMINER REQUESTED THE BOARD'S ATTORNEY TO STATE THE THEORY UPON WHICH
HE CONTENDED THAT THOSE EMPLOYEES SHOULD BE REINSTATED.  CONSIDERABLE
TESTIMONY WAS OFFERED TO SHOW THE WORKING CONDITIONS, HOURS, RATES OF
PAY, CONTINUITY OF OPERATION, ETC., OF MINES IN WHICH THE WITNESSES HAD
SECURED OTHER EMPLOYMENT. 

ALL THIS WAS IN THE RECORD CERTIFIED TO THE BOARD.  ACCOMPANYING IT
WAS THE CONTENTION OF THE EMPLOYER THAT REINSTATEMENT SHOULD BE DENIED
FOR VARIOUS REASONS.  THE BOARD EXPLICITLY CONSIDERED THE CONTENTION,
AMONG OTHERS, THAT REINSTATEMENT WOULD PROVOKE FURTHER DISPUTES AND
DISCORD AMONG THE EMPLOYEES RATHER THAN PROMOTE LABOR PEACE.  IT ALSO
CONSIDERED THE CONTENTION THAT MANY OF THE EMPLOYEES HAD OBTAINED OTHER
SUBSTANTIALLY EQUIVALENT EMPLOYMENT, MAKING BOTH GENERAL AND SPECIFIC
FINDINGS CONCERNING IT.  FN2  FINALLY, IT CONCLUDED THAT THE POLICIES
OF THE ACT WOULD BE EFFECTUATED BY ORDERING THE EMPLOYER TO TENDER
REINSTATEMENT TO DESIGNATED EMPLOYEES. 

THAT ITS ORDER OF REINSTATEMENT WAS MORE THAN A PERFUNCTORY EXERCISE
OF POWER IS POINTEDLY MANIFEST FROM THE BOARD'S OWN STATEMENTS. 
ANSWERING THE EMPLOYER'S CONTENTION THAT REINSTATEMENT MIGHT FOSTER
DISCORD AMONG THE EMPLOYEES, THE BOARD DECLARED:  "WE CANNOT BUT
CONSIDER THE DIFFICULTIES OF ADJUSTMENT ENVISAGED IN THE FOREGOING
TESTIMONY (UPON WHICH THE EMPLOYER RELIED) AS CONJECTURAL AND
INSUBSTANTIAL, ESPECIALLY IN VIEW OF THE LAPSE OF TIME SINCE THE
STRIKE.  HOWEVER, EVEN ASSUMING THAT THE ASSERTED RESENTMENT OF NON
STRIKERS TOWARDS STRIKERS AND PICKETERS PERSISTS, THE EFFECTUATION OF
THE POLICIES OF THE ACT PATENTLY REQUIRES THE RESTORATION OF THE
STRIKERS AND PICKETERS TO THEIR STATUS QUO BEFORE THE DISCRIMINATION
AGAINST THEM." 

IN DISCUSSING ITS PROPOSED ORDER, THE BOARD SAID:  "HAVING FOUND THAT
THE RESPONDENT HAS ENGAGED IN UNFAIR LABOR PRACTICES, WE WILL ORDER IT
TO CEASE AND DESIST THEREFROM AND TO TAKE CERTAIN AFFIRMATIVE ACTION
DESIGNED TO EFFECTUATE THE POLICIES OF THE ACT AND TO RESTORE AS NEARLY
AS POSSIBLE THE CONDITION WHICH EXISTED PRIOR TO THE COMMISSION OF THE
UNFAIR LABOR PRACTICES." 

AND IN ITS FORMAL ORDER, THE BOARD STATED:  "UPON THE BASIS OF THE
ABOVE FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND PURSUANT TO SECTION
10(C) OF THE NATIONAL LABOR RELATIONS ACT, THE NATIONAL LABOR RELATIONS
BOARD HEREBY ORDERS THAT THE RESPONDENT, PHELPS DODGE CORPORATION  ...
SHALL:  ...  2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH THE BOARD
FINDS WILL EFFECTUATE THE POLICIES OF THE ACT:  (A)  OFFER TO THE
FOLLOWING PERSONS IMMEDIATE AND FULL REINSTATEMENT TO THEIR FORMER OR
SUBSTANTIALLY EQUIVALENT POSITIONS  ...  ; (B) MAKE WHOLE (THE
FOLLOWING EMPLOYEES) FOR ANY LOSS OF PAY THEY MAY HAVE SUFFERED BY
REASON OF THE RESPONDENT'S DISCRIMINATORY REFUSAL TO REINSTATE THEM
...  LESS THE NET EARNINGS OF EACH  ...  " 

THE ITALICIZED PHRASES IN THESE QUOTATIONS WERE NOT CHANCE OR FORMAL
RECITALS.  THEY EXPRESSED IN SUMMARY A CONSIDERED EXERCISE OF
ADMINISTRATIVE DISCRETION.  THE BOARD CAREFULLY FOLLOWED THE PRECISE
PROCEDURE WHICH THIS COURT SAYS IT SHOULD HAVE ADOPTED.  IT FOUND THAT
THE EMPLOYEES IN QUESTION HAD BEEN THE VICTIMS OF UNFAIR LABOR
PRACTICES.  IT ALSO FOUND THAT THE POLICIES OF THE ACT WOULD BE
EFFECTUATED BY ORDERING THEIR REINSTATEMENT.  SINCE THERE WAS EVIDENCE
TO SUPPORT THESE FINDINGS, IT IS DIFFICULT TO UNDERSTAND WHAT MORE THE
BOARD SHOULD OR COULD HAVE DONE. 

BUT IF WE ARE NOW TO CONSIDER IN THE ABSTRACT WHETHER THE BOARD
PROPERLY OPINED THAT IT MIGHT HAVE THE POWER TO ORDER REINSTATEMENT
WITHOUT REGARD TO THE SUBSTANTIAL EQUIVALENCY OF OTHER EMPLOYMENT, I AM
NEVERTHELESS UNABLE TO APPROVE THE MODIFICATION OF ITS ORDER, OR TO
ACCEPT THE INFERENCE THAT THE BOARD MUST CONSIDER THE SUBSTANTIAL
EQUIVALENCY OF OTHER EMPLOYMENT BEFORE IT MAY ORDER REINSTATEMENT. 
THERE IS NOTHING IN SEC. 10(C) OR IN THE ACT AS A WHOLE WHICH EXPRESSLY
OR IMPLIEDLY OBLIGATES THE BOARD TO CONSIDER THE SUBSTANTIAL
EQUIVALENCY OF OTHER EMPLOYMENT OR TO MAKE FINDINGS CONCERNING IT
BEFORE IT MAY ORDER REINSTATEMENT.  INDEED, SUCH A RULE NARROWS RATHER
THAN BROADENS THE ADMINISTRATIVE DISCRETION WHICH THE ACT CONFERS ON
THE BOARD. 

PRACTICAL ADMINISTRATIVE EXPERIENCE MAY CONVINCE THE BOARD THAT THE
SELF-INTEREST OF THE EMPLOYEE IS A FAR BETTER GAUGE OF THE SUBSTANTIAL
EQUIVALENCY OF HIS OTHER EMPLOYMENT THAN ANY EXTENDED FACTUAL INQUIRY
OF ITS OWN.  CONVERSELY, THE BOARD MAY CONCLUDE THAT THE POLICIES OF
THE ACT ARE BEST EFFECTUATED BY AN INVESTIGATION IN EVERY CASE INTO THE
NATURE OF HIS OTHER EMPLOYMENT.  THAT CHOICE OF RULES IS AN EXERCISE OF
DISCRETION WHICH CONGRESS HAS ENTRUSTED TO THE BOARD.  WHICHEVER RULE
THE BOARD ADOPTS, IT DOES NOT FOLLOW THAT REINSTATEMENT BECOMES A
REMEDY WHICH IS GRANTED AUTOMATICALLY UPON A FINDING OF UNFAIR LABOR
PRACTICES.  IF FOR OTHER REASONS THE BOARD FINDS THAT THE POLICIES OF
THE ACT WILL NOT BE EFFECTUATED, OF COURSE IT NOT ONLY COULD BUT SHOULD
DECLINE TO ORDER AN OFFER OF REINSTATEMENT.  COMPARE MATTER OF THOMPSON
CABINET CO., 11 N.L.R.B. 1106. 

SECOND.  AS ALREADY INDICATED, I AM UNABLE TO ACCEPT THE LIMITATION
NOW IMPOSED ON THE BOARD'S POWER TO MAKE BACK PAY AWARDS.  AGAIN THE
QUESTION IS SIMPLY THIS:  WAS THE BACK PAY ORDER WITHIN THE POWER OF
THE BOARD AND SUPPORTED BY EVIDENCE?  WHAT ORDER THE BOARD SHOULD HAVE
MADE OR WHAT RULE OF LAW IT SHOULD HAVE FOLLOWED IF SOME OF THE
EMPLOYEES HAD "WILLFULLY INCURRED" LOSSES ARE QUESTIONS OF IMPORTANCE
WHICH WE SHOULD ANSWER ONLY WHEN THEY ARE PRESENTED.  THEY ARE NOT HERE
NOW. 

THE BOARD EXPRESSLY FOUND THAT THE POLICIES OF THE ACT WOULD BE
EFFECTUATED BY ORDERING THE EMPLOYER TO MAKE WHOLE THOSE EMPLOYEES WHO
HAD BEEN THE VICTIMS OF DISCRIMINATORY PRACTICES.  WE ARE POINTED TO
NOTHING WHICH REQUIRES A DIFFERENT CONCLUSION.  WE ARE NOT REFERRED TO
ANY EMPLOYEE WHO "WILLFULLY INCURRED" LOSSES, OR TO ANY EVIDENCE IN THE
RECORD COMPELLING US TO HOLD THAT ANY OF THEM DID.  AT MOST THE RECORD
SHOWS ONLY THAT SOME OF THE EMPLOYEES OBTAINED OTHER EMPLOYMENT - WHICH
WAS NOT SUBSTANTIALLY EQUIVALENT - AND THEN VOLUNTARILY RELINQUISHED
IT.  FOR ALL WE KNOW, THE BOARD COULD HAVE DETERMINED THAT THIS
EVIDENCE DID NOT ESTABLISH "WILLFULLY INCURRED" LOSSES.  PLAINLY THAT
WAS A PERMISSIBLE INFERENCE FROM THE EVIDENCE, AND, THIS BEING SO,
THERE IS NO OCCASION NOW TO DECIDE WHAT THE BOARD SHOULD HAVE DONE HAD
IT DRAWN SOME OTHER INFERENCE. 

BUT AGAIN, IF WE ARE NOW TO RULE ON THE ABSTRACT ISSUE, I CANNOT
AGREE THAT THE POWER TO MAKE BACK PAY AWARDS MUST BE FETTERED IN THE
MANNER DESCRIBED IN THE OPINION JUST ANNOUNCED.  FOR IF THE BOARD HAS
NO CHOICE BUT TO ACCEPT THE LIMITATION NOW IMPOSED, ITS ADMINISTRATIVE
DISCRETION IS CURBED BY THE VERY DECISION WHICH PURPORTS TO LEAVE IT
UNTOUCHED. 

IT MUST BE CONCEDED THAT NOTHING IN THE ACT REQUIRES SUCH A
LIMITATION IN SO MANY WORDS.  TO BE SURE, NOTHING IN THE ACT REQUIRES A
BACK PAY AWARD TO BE DIMINISHED BY THE AMOUNTS ACTUALLY EARNED (COMPARE
REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7), BUT THAT SHOULD
ADMONISH US TO HESITATE BEFORE WE INTRODUCE YET ANOTHER MODIFICATION
WHICH CONGRESS HAS NOT SEEN FIT TO ENACT, ESPECIALLY WHEN THE TWO
SITUATIONS DIFFER IN MANY RESPECTS.  IT IS NOT OUR FUNCTION TO READ THE
ACT AS WE THINK IT SHOULD HAVE BEEN WRITTEN, OR TO SUPPLANT A RULE
ADOPTED BY THE BOARD WITH ONE WHICH WE BELIEVE IS BETTER.  OUR ONLY
OFFICE IS TO DETERMINE WHETHER THE RULE CHOSEN, TESTED IN THE LIGHT OF
STATUTORY STANDARDS, WAS WITHIN THE PERMISSIBLE RANGE OF THE BOARD'S
DISCRETION. 

THE BOARD MIGHT PROPERLY CONCLUDE THAT THE POLICIES OF THE ACT WOULD
BEST BE EFFECTUATED BY REFUSING TO EMBARK ON THE INQUIRY WHETHER THE
EMPLOYEES HAD WILLFULLY INCURRED LOSSES.  ADMINISTRATIVE DIFFICULTIES
ENGENDERED BY A CONTRARY RULE WOULD BE INFINITE, PARTICULARLY AS THE
NUMBER OF INDIVIDUALS INVOLVED IN THE DISPUTE INCREASED.  UNDERLYING
THE CONTRARY RULE IS THE SUPPOSITION THAT THE EMPLOYEE WOULD PURPOSELY
REMAIN IDLE AWAITING HIS BACK PAY AWARD.  BUT THAT ATTRIBUTES TO THE
EMPLOYEE AN OMNISCIENCE FREQUENTLY NOT GIVEN TO MEMBERS OF THE LEGAL
PROFESSION.  HE MUST BE ABLE TO DETERMINE THAT THE EMPLOYER ACTUALLY
HAS COMMITTED UNFAIR LABOR PRACTICES; THAT THE UNFAIR LABOR PRACTICES
AFFECT COMMERCE WITHIN THE MEANING OF SECS. 2(6) AND 2(7); THAT THE
BOARD WILL TAKE FAVORABLE ACTION AND MAKE A BACK PAY AWARD; THAT THE
CIRCUIT COURT OF APPEALS WILL ENFORCE THAT ORDER IN FULL; AND THAT THIS
COURT FINALLY WILL AFFIRM IF THE CASE COMES HERE. 

THIS IS NOT ALL.  HE MUST HAVE CAPITAL SUFFICIENT TO PROVIDE FOR
HIMSELF AND FOR ANY DEPENDENTS WHILE HE AWAITS THE BACK PAY AWARD, EVEN
THOUGH THAT MAY NOT COME UNTIL SEVERAL YEARS LATER.  FN6 HE MUST RISK
UNION DISFAVOR BY DIVIDING HIS EFFORTS BETWEEN A LABOR DISPUTE AND A
SEARCH FOR A NEW JOB.  HE MUST REALIZE, ALTHOUGH HIS NATURAL
SUPPOSITIONS ARE OTHERWISE, THAT HE WILL PROBABLY NOT ENDANGER
SENIORITY RIGHTS OR CHANCE OF REINSTATEMENT BY ACCEPTING OTHER
EMPLOYMENT.  HE MUST BE ABLE TO DECIDE WHEN HE HAS MADE SUFFICIENT
EFFORTS TO SECURE OTHER EMPLOYMENT NOTWITHSTANDING THAT HE IS NOT TOLD
WHETHER HE CAN OR MUST ACCEPT ANY JOB NO MATTER WHERE IT IS OR WHAT
TYPE OF EMPLOYMENT, WAGES, HOURS, OR WORKING CONDITIONS.    AT HIS
PERIL HE MUST DETERMINE ALL THESE THINGS BECAUSE CONVENTIONAL COMMON
LAW CONCEPTS AND DOCTRINES OF DAMAGES, APPLICABLE IN SUITS TO ENFORCE
PURELY PRIVATE RIGHTS, ARE TO BE IMPORTED INTO THE NATIONAL LABOR
RELATIONS ACT. 

HAVING THESE CONSIDERATIONS IN MIND, SUPPLEMENTED PERHAPS BY OTHERS
NOT AVAILABLE OR SUGGESTED TO US, THE BOARD MIGHT WELL DECIDE THAT THE
RULE DISAPPROVED HERE WOULD BEST EFFECTUATE THE POLICIES OF THE ACT.  I
DO NOT THINK WE SHOULD SUBSTITUTE OUR JUDGMENT ON THIS ISSUE FOR THAT
OF THE BOARD.    ACCORDINGLY, I WOULD AFFIRM THE ORDER OF THE BOARD IN
FULL. 

FN1  THE ENTIRE PARAGRAPH IN WHICH THIS STATEMENT APPEARS READS: 

"WE HAVE FOUND THAT THE RESPONDENT HAS DISCRIMINATED IN REGARD TO
HIRE AND TENURE OF EMPLOYMENT OF CERTAIN INDIVIDUALS NAMED ABOVE.  IN
ACCORDANCE WITH OUR USUAL PRACTICE WE SHALL ORDER THE REINSTATEMENT OR
THE REEMPLOYMENT OF SUCH INDIVIDUALS.  THE RESPONDENT CONTENDS THAT THE
BOARD LACKS POWER TO ORDER THE REINSTATEMENT OF ANY STRIKER WHO HAS
OBTAINED OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT.  WE
HAVE FOUND THAT NONE OF THE STRIKERS DISCRIMINATED AGAINST HAS OBTAINED
OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT WITHIN THE
MEANING OF THE ACT.  NEVERTHELESS, EVEN IF ANY STRIKER HAD OBTAINED
SUCH EMPLOYMENT, WE WOULD, FOR THE REASONS SET FORTH IN MATTER OF EAGLE
PICHER MINING & SMELTING CO.,  ...  STILL ORDER HIS REINSTATEMENT BY
THE RESPONDENT."  19 N.L.R.B. 547, 598. 

IT IS TO BE NOTED, OF COURSE, THAT IN THE EAGLE-PICHER CASE THE
BOARD'S REMARKS WERE MADE IN ANSWER TO THE ARGUMENT ADVANCED HERE, THAT
SEC. 2(3) NARROWS THE APPLICATION OF THE TERM "EMPLOYEES" IN SEC.
10(C). 

IT IS WORTH NOTING, TOO, THAT IN THAT CASE THE BOARD STATED: 

"FURTHER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE ACT, AND AS A
MEANS OF REMOVING AND AVOIDING THE CONSEQUENCES OF THE RESPONDENTS'
UNFAIR LABOR PRACTICES, WE SHALL, IN AID OF OUR CEASE AND DESIST ORDER,
ORDER THE RESPONDENTS TO TAKE CERTAIN AFFIRMATIVE ACTION, MORE
PARTICULARLY DESCRIBED BELOW."  16 N.L.R.B. 727, 831. 

FN2  THE BOARD FOUND THAT NONE OF THE EMPLOYEES HAD OBTAINED OTHER
SUBSTANTIALLY EQUIVALENT EMPLOYMENT.  THE CIRCUIT COURT OF APPEALS
REVERSED THIS FINDING IN PART.  THE REVERSAL IS NOT CHALLENGED HERE,
BUT THAT IS IMMATERIAL SINCE THE COURT NOW DECIDES THAT THE BOARD HAS
THE POWER TO ORDER REINSTATEMENT EVEN THOUGH THE EMPLOYEES HAVE FOUND
OTHER SUBSTANTIALLY EQUIVALENT EMPLOYMENT, PROVIDED THAT THE POLICIES
OF THE ACT WILL BE EFFECTUATED. 

FN6  THE LABOR DISPUTE WHICH GAVE RISE TO THIS PROCEEDING OCCURRED IN
1935. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THIS OPINION. 

MR. JUSTICE STONE: 

WITH TWO RULINGS OF THE COURT'S OPINION THE CHIEF JUSTICE AND I ARE
UNABLE TO AGREE. 

CONGRESS HAS, WE THINK, BY THE TERMS OF THE ACT, EXCLUDED FROM THE
BOARD'S POWER TO REINSTATE WRONGFULLY DISCHARGED EMPLOYEES, ANY
AUTHORITY TO REINSTATE THOSE WHO HAVE "OBTAINED ANY OTHER REGULAR AND
SUBSTANTIALLY EQUIVALENT EMPLOYMENT."  AND WE ARE NOT PERSUADED THAT
CONGRESS, BY GRANTING TO THE BOARD, BY SEC. 10(C) OF THE ACT, AUTHORITY
"TO TAKE SUCH AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES
WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES OF THE ACT,"
HAS ALSO AUTHORIZED IT TO ORDER THE EMPLOYER TO HIRE APPLICANTS FOR
WORK WHO HAVE NEVER BEEN IN HIS EMPLOY OR TO COMPEL HIM TO GIVE THEM
"BACK PAY" FOR ANY PERIOD WHATEVER. 

THE AUTHORITY OF THE BOARD TO TAKE AFFIRMATIVE ACTION BY WAY OF
REINSTATEMENT OF EMPLOYEES IS NOT TO BE READ AS CONFERRING UPON IT
POWER TO TAKE ANY MEASURES, HOWEVER DRASTIC, WHICH IT CONCEIVES WILL
EFFECTUATE THE POLICIES OF THE ACT.  WE HAVE HELD THAT THE PROVISION IS
REMEDIAL, NOT PUNITIVE, CONSOLIDATED EDISON CO. V. LABOR BOARD, 305
U.S. 197, 235, 236; SEE ALSO LABOR BOARD V. PENNSYLVANIA GREYHOUND
LINES, 303 U.S. 261, 267, 268, AND THAT ITS PURPOSE IS TO EFFECTUATE
THE POLICIES OF THE ACT BY ACHIEVING THE "REMEDIAL OBJECTIVES WHICH THE
ACT SETS FORTH" AND "TO RESTORE AND MAKE WHOLE EMPLOYEES WHO HAVE BEEN
DISCHARGED IN VIOLATION OF THE ACT."  REPUBLIC STEEL CORP. V. LABOR
BOARD, 311 U.S. 7, 12.  THE ACT ITSELF HAS EMPHASIZED THIS PURPOSE
WHEN, IN INCLUDING IN THE CATEGORY OF "EMPLOYEES" THOSE WHO MIGHT NOT
OTHERWISE HAVE BEEN SO INCLUDED, IT PROVIDED, SEC. 2(3), THAT THE TERM
"EMPLOYEE" "SHALL INCLUDE ANY INDIVIDUAL WHOSE WORK HAS CEASED AS A
CONSEQUENCE OF, OR IN CONNECTION WITH, ANY CURRENT LABOR DISPUTE OR
BECAUSE OF ANY UNFAIR LABOR PRACTICE, AND WHO HAS NOT OBTAINED ANY
OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT." 

WHILE THE STATED POLICY OF A STATUTE IS AN IMPORTANT FACTOR IN
INTERPRETING ITS COMMAND, WE CANNOT IGNORE THE WORDS OF THE COMMAND IN
ASCERTAINING ITS POLICY.  IN ENLARGING THE CATEGORY OF "EMPLOYEES" TO
INCLUDE WRONGFULLY DISCHARGED EMPLOYEES AND AT THE SAME TIME EXCLUDING
FROM IT THOSE WHO HAVE OBTAINED "OTHER REGULAR AND SUBSTANTIALLY
EQUIVALENT EMPLOYMENT," THE CONGRESS ADOPTED A POLICY WHICH IT MAY WELL
HAVE THOUGHT WOULD FURTHER THE CAUSE OF INDUSTRIAL PEACE QUITE AS MUCH
AS THE ENFORCED EMPLOYMENT OF DISCHARGED EMPLOYEES WHERE THERE WAS NO
OCCASION TO COMPENSATE THEM FOR THE LOSS OF THEIR EMPLOYMENT.  IT IS
THE POLICY OF THE ACT AND NOT THE BOARD'S POLICY WHICH IS TO BE
EFFECTUATED, AND IN THE FACE OF SO EXPLICIT A RESTRICTION OF THE
DEFINITION OF DISCHARGED EMPLOYEES TO THOSE WHO HAVE NOT PROCURED
EQUIVALENT EMPLOYMENT, WE CAN ONLY CONCLUDE THAT CONGRESS HAS ADOPTED
THE POLICY OF RESTRICTING THE AUTHORIZED "REINSTATEMENT OF EMPLOYEES"
TO THAT CLASS. 

EVEN IF WE READ THE LANGUAGE OF SEC. 2(3) DISTRIBUTIVELY, IT SEEMS
DIFFICULT TO SAY THAT THE SPECIALLY GRANTED POWER TO REINSTATE
EMPLOYEES EXTENDS TO THOSE WHO, BY DEFINITION, ARE NOT EMPLOYEES, AND
THIS IS THE MORE SO WHEN THE EFFECT OF THE DEFINITION IS CONSONANT WITH
WHAT APPEARS TO BE THE DECLARED PURPOSE OF THE REINSTATEMENT
PROVISION.  NOR CAN IT FAIRLY BE SAID THAT THE DEFINITION OF EMPLOYEES
IS OF SIGNIFICANCE ONLY FOR THE PURPOSE OF DETERMINING THE APPROPRIATE
BARGAINING AGENCY OF THE EMPLOYEES.  THERE IS NO EVIDENCE IN THE
STATUTE ITSELF, OR TO BE DERIVED FROM ITS LEGISLATIVE HISTORY, THAT THE
DEFINITION WAS NOT TO BE APPLIED IN THE ONE CASE QUITE AS MUCH AS IN
THE OTHER.  CERTAINLY THE FACT OF SUBSTANTIALLY EQUIVALENT EMPLOYMENT
HAS AS MUCH BEARING UPON MAKING THE DISCHARGED EMPLOYEE WHOLE AS UPON
HIS RIGHT TO PARTICIPATE IN THE CHOICE OF A BARGAINING REPRESENTATIVE,
AND NO GROUND HAS BEEN ADVANCED FOR SAYING THAT IT APPLIES TO ONE AND
NOT THE OTHER. 

AS A MAJORITY OF THE COURT IS OF OPINION THAT THE BOARD DOES POSSESS
THE POWER TO ORDER REINSTATEMENT EVEN THOUGH THE DISCHARGED EMPLOYEES
HAD OBTAINED OTHER EQUIVALENT EMPLOYMENT, WE AGREE THAT THE CASE SHOULD
NOW BE REMANDED TO THE BOARD FOR A DETERMINATION OF THE QUESTION
WHETHER REINSTATEMENT HERE WOULD FURTHER THE POLICIES OF THE ACT. 

WE AGREE THAT PETITIONER'S REFUSAL TO HIRE TWO APPLICANTS FOR JOBS,
BECAUSE OF THEIR UNION MEMBERSHIP, WAS AN UNFAIR LABOR PRACTICE WITHIN
THE MEANING OF SEC. 8(3) OF THE ACT, EVEN THOUGH THEY HAD NEVER BEEN
EMPLOYEES OF THE PETITIONER, AND THAT UNDER SEC. 9(C) THE BOARD WAS
AUTHORIZED TO ORDER PETITIONER TO CEASE AND DESIST FROM THE PRACTICE
AND TO TAKE APPROPRIATE PROCEEDINGS UNDER SEC. 10 TO ENFORCE ITS
ORDER.  BUT IT IS QUITE ANOTHER MATTER TO SAY THAT CONGRESS HAS ALSO
AUTHORIZED THE BOARD TO ORDER THE EMPLOYER TO HIRE APPLICANTS FOR WORK
WHO HAVE NEVER BEEN IN HIS EMPLOY AND TO COMPEL HIM TO GIVE THEM "BACK
PAY." 

THE CONGRESSIONAL DEBATES AND COMMITTEE REPORTS GIVE NO HINT THAT, IN
ENACTING THE NATIONAL LABOR RELATIONS ACT, CONGRESS OR ANY MEMBER OF IT
THOUGHT IT WAS GIVING THE BOARD A REMEDIAL POWER WHICH FEW COURTS HAD
EVER ASSUMED TO EXERCISE OR HAD BEEN THOUGHT TO POSSESS, AND WE ARE
UNABLE TO SAY THAT THE WORDS OF THE STATUTE GO SO FAR.  THE AUTHORITY
GIVEN TO THE BOARD BY SEC. 10(C) IS, AS WE HAVE SAID, NOT AN
UNRESTRICTED POWER, AND THE GRANT IS NOT TO BE READ AS THOUGH THE WORDS
"INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY" WERE NO
PART OF THE STATUTE.  NONE OF THE WORDS OF A STATUTE ARE TO BE
DISREGARDED AND IT CANNOT BE ASSUMED THAT THE INTRODUCTION OF THE
PHRASE IN THIS ONE WAS WITHOUT A PURPOSE. 

UNDOUBTEDLY, THE WORD "INCLUDING" MAY PREFACE AN ILLUSTRATIVE EXAMPLE
OF A GENERAL POWER ALREADY GRANTED, HELVERING V. MORGAN'S, INC., 293
U.S. 121, 125, OR IT MAY SERVE TO DEFINE THAT POWER OR EVEN ENLARGE IT.
CF. MONTELLO SALT CO. V. UTAH, 221 U.S. 452, 462, ET SEQ. WHETHER IT
IS THE ONE OR ANOTHER MUST BE DETERMINED BY THE PURPOSE OF THE ACT, TO
BE ASCERTAINED IN THE LIGHT OF THE CONTEXT, THE LEGISLATIVE HISTORY,
AND THE SUBJECT MATTER TO WHICH THE STATUTE IS TO BE APPLIED. 

IN VIEW OF THE TRADITIONAL RELUCTANCE OF COURTS TO COMPEL THE
PERFORMANCE OF PERSONAL SERVICE CONTRACTS, IT SEEMS AT LEAST DOUBTFUL
WHETHER AN AUTHORITY TO THE BOARD TO TAKE AFFIRMATIVE ACTION COULD,
WITHOUT MORE, FAIRLY BE CONSTRUED AS PERMITTING IT TO TAKE A KIND OF
AFFIRMATIVE ACTION WHICH HAD VERY GENERALLY BEEN THOUGHT TO BE BEYOND
THE POWER OF COURTS.  THIS IS THE MORE SO BECAUSE THE BOARD'S ORDERS
WERE BY SEC. 10(C) MADE SUBJECT TO REVIEW AND MODIFICATION OF THE
COURTS WITHOUT ANY SPECIFIED RESTRICTION UPON THE EXERCISE OF THAT
AUTHORITY. 

IT IS TRUE THAT IN TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S.
548, THIS COURT HAD HELD THAT UPON CONTEMPT PROCEEDINGS FOR VIOLATION
OF A DECREE ENJOINING COERCIVE MEASURES BY THE EMPLOYER AGAINST HIS
UNION EMPLOYEES, A COURT COULD PROPERLY DIRECT THAT THE CONTEMPT BE
PURGED ON CONDITION THAT THE EMPLOYER RESTORE THE STATUS QUO.  BUT
CONGRESS IN ENACTING THE NATIONAL LABOR RELATIONS ACT TOOK A STEP
FURTHER BY PROVIDING THAT THE BOARD COULD ORDER REINSTATEMENT OF
EMPLOYEES EVEN THOUGH THERE HAD BEEN NO VIOLATION OF ANY PREVIOUS ORDER
OF THE BOARD OR OF A COURT.  IT THUS REMOVED THE DOUBT WHICH WOULD
OTHERWISE HAVE ARISEN BY DEFINING AND, AS WE THINK, ENLARGING THE
BOARD'S AUTHORITY TO TAKE AFFIRMATIVE ACTION SO AS TO INCLUDE THE POWER
TO ORDER "REINSTATEMENT" OF EMPLOYEES.  BUT AN AUTHORITY TO ORDER
REINSTATEMENT IS NOT AN AUTHORITY TO COMPEL THE EMPLOYER TO INSTATE AS
HIS EMPLOYEES THOSE WHOM HE HAS NEVER EMPLOYED, AND AN AUTHORITY TO
AWARD "BACK PAY" TO REINSTATED EMPLOYEES IS NOT AN AUTHORITY TO COMPEL
PAYMENT OF WAGES TO APPLICANTS FOR EMPLOYMENT WHOM THE EMPLOYER WAS
NEVER BOUND TO HIRE. 

AUTHORITY FOR SO UNPRECEDENTED AN EXERCISE OF POWER IS NOT LIGHTLY TO
BE INFERRED.  IN VIEW OF THE USE OF THE PHRASE "INCLUDING REINSTATEMENT
OF EMPLOYEES," AS A DEFINITION AND ENLARGEMENT, AS WE THINK IT IS, OF
THE AUTHORITY OF THE BOARD TO TAKE AFFIRMATIVE ACTION, WE CANNOT INFER
FROM IT A CONGRESSIONAL PURPOSE TO AUTHORIZE THE BOARD TO ORDER
COMPULSORY EMPLOYMENT AND WAGE PAYMENTS NOT EMBRACED IN ITS TERMS. 
..END :





CONTINENTAL OIL CO. V. LABOR BOARD, 313 U.S. 212 


NO. 413.  ARGUED MARCH 11, 1941.  - DECIDED APRIL 28, 1941.  - 113 F.2D
473, MODIFIED AND REMANDED. 


DECIDED UPON THE AUTHORITY OF NO. 387, PHELPS DODGE CORP. V. NATIONAL
LABOR RELATIONS BOARD, ANTE, P. 177.  P. 214. 

CONTINENTAL OIL CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 311 U.S. 637, TO REVIEW IN PART A JUDGMENT SUSTAINING IN
PART AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, 12 N.L.R.B. 789. 

THE BOARD HAS NO POWER TO ORDER REINSTATEMENT UNLESS THE STATUS OF
"EMPLOYEE" EXISTS AT THE TIME OF THE ENTRY OF THE BOARD'S ORDER, AND
UNLESS THE EMPLOYEE HAS NOT, IN THE MEANTIME, OBTAINED ANY OTHER
REGULAR AND SUBSTANTIALLY EQUIVALENT EMPLOYMENT.  MOORESVILLE COTTON
MILLS V. LABOR BOARD, 94 F.2D 51, 66; STANDARD LIME & STONE CO. V.
LABOR BOARD, 97 F.2D 531, 535; LABOR BOARD V. CARLISLE LUMBER CO., 99
F.2D 533, 537, 538; LABOR BOARD V. HEARST, 102 F.2D 658, 664; LABOR
BOARD V. NATIONAL MOTOR BEARING CO., 105 F.2D 652, 662; LABOR BOARD V.
BOTANY WORSTED MILLS, 106 F.2D 263, 269; PHELPS DODGE CORP. V. LABOR
BOARD, 113 F.2D 202. 

THE BOARD MADE NO FINDING THAT THE EMPLOYEE HAD NOT OBTAINED
SUBSTANTIALLY EQUIVALENT EMPLOYMENT.  ONE WHO BECOMES A PROPRIETOR OF A
BUSINESS DOES NOT RETAIN HIS STATUS AS AN "EMPLOYEE." 

THE POWER OF THE BOARD TO REQUIRE AFFIRMATIVE ACTION IS REMEDIAL, NOT
PUNITIVE.  CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197; LABOR
BOARD V. FANSTEEL METALLURGICAL CORP., 306 U.S. 240; REPUBLIC STEEL
CORP. V. LABOR BOARD, 311 U.S. 7. 

IN CONNECTION WITH THE REINSTATEMENT, THE BOARD ORDERED THAT JONES
SHOULD BE REIMBURSED FOR HIS EARNINGS LOSS UP UNTIL THE TIME WHEN OFFER
OF REINSTATEMENT WAS MADE.  IT CAN NOT BE PROPER TO REQUIRE AN EMPLOYER
TO SUBSIDIZE A BUSINESS VENTURE AND PROTECT A FORMER EMPLOYEE AGAINST
THE LOSSES IN THE BUSINESS VENTURE IN WHICH HE HAS VOLUNTARILY
ENGAGED. 

THE EVIDENCE SHOWS A TRANSFER OF MOORE, BUT NO DISCHARGE.  THERE IS
NO FINDING OF ANY DISCHARGE, BUT THERE IS A FINDING OF A DISCRIMINATORY
TRANSFER.  SUCH A FINDING, NOT IN CONFORMITY WITH ANY CHARGE IN THE
COMPLAINT, IS NOT SUFFICIENT TO JUSTIFY ANY REINSTATEMENT RELIEF. 

MOORE'S EMPLOYMENT AT THE PENITENTIARY AT A WAGE OF $70 PER MONTH,
PLUS ROOM AND BOARD, WAS REGULAR EMPLOYMENT SUBSTANTIALLY EQUIVALENT TO
HIS FORMER EMPLOYMENT.  HE THEREFORE COULD NOT BE CONSIDERED AN
EMPLOYEE WITHIN THE REINSTATEMENT PROVISIONS OF THE ACT.  LABOR BOARD
V. CARLISLE LUMBER CO., 99 F.2D 533, 537. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN ITS PETITION THE CONTINENTAL OIL COMPANY CHALLENGED VARIOUS
PROVISIONS OF AN ORDER OF THE LABOR BOARD WHICH THE CIRCUIT COURT OF
APPEALS HAD ENFORCED, BUT WE BROUGHT HERE ONLY SO MUCH OF THE CASE AS
PERTAINED TO THE REINSTATEMENT OF TWO MEN, JONES AND MOORE, 311 U.S.
637.  CONTINENTAL'S CONTENTION IS THAT REINSTATEMENT WAS PRECLUDED
BECAUSE NEITHER MAN REMAINED AN "EMPLOYEE" WITHIN SEC. 2(3) OF THE
NATIONAL LABOR RELATIONS ACT.  THE DECISIVE QUESTION, HOWEVER, AS WE
HAVE RULED IN THE PHELPS DODGE CASE, ANTE, P. 177, IS WHETHER
REINSTATEMENT WILL "EFFECTUATE THE POLICIES" OF THE ACT.  WE THEREFORE
REMAND THE CASE FOR AN EXERCISE BY THE BOARD OF ITS JUDGMENT ON THAT
ISSUE, IN LIGHT OF OUR OPINION IN THE PHELPS DODGE CASE.  REMANDED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 

THE CHIEF JUSTICE AND MR. JUSTICE STONE REITERATE THE VIEWS EXPRESSED
BY THEM IN THE PHELPS DODGE CASE. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE MURPHY ARE OF
OPINION THAT THE BOARD'S ORDER SHOULD BE AFFIRMED FOR THE REASONS SET
FORTH BY THEM IN THE PHELPS DODGE CASE. 
..END :



















SAMPSELL V. IMPERIAL PAPER CORP., 313 U.S. 215 


NO. 601.  ARGUED MARCH 31, 1941.  - DECIDED APRIL 28, 1941.  - 114 F.2D
49, REVERSED. 


1.  A COURT OF BANKRUPTCY HAS JURISDICTION, BY SUMMARY PROCEEDINGS, TO
COVER INTO THE ESTATE OF THE BANKRUPT, PROPERTY OF A CORPORATION, THE
ONLY STOCKHOLDERS AND OFFICERS OF WHICH WERE THE BANKRUPT, HIS WIFE AND
SON, AND TO WHICH THE BANKRUPT HAD MADE A TRANSFER, NOT IN GOOD FAITH,
OF HIS PROPERTY; AND AN ORDER TO THAT EFFECT, ENTERED AFTER NOTICE TO
THE CORPORATION AND ITS STOCKHOLDERS, IS BINDING ON THE CORPORATION,
AND MAY NOT BE COLLATERALLY ATTACKED IN PROCEEDINGS WHEREIN A CREDITOR
OF THE CORPORATION SOUGHT PRIORITY AGAINST ITS ASSETS.  P. 218. 

2.  IN SUCH CASE, AN UNSECURED CREDITOR OF THE CORPORATION, WHO HAD
SOME KNOWLEDGE OF THE FRAUDULENT CHARACTER OF THE TRANSFER BY THE
BANKRUPT TO THE CORPORATION, HELD ENTITLED ONLY TO PARI PASSU
PARTICIPATION WITH INDIVIDUAL CREDITORS OF THE BANKRUPT.  P. 219. 

SAMPSELL, TRUSTEE IN BANKRUPTCY, V. IMPERIAL PAPER & COLOR CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 312 U.S. 669, TO REVIEW A JUDGMENT REVERSING AN ORDER
DENYING PRIORITY TO A CLAIM IN BANKRUPTCY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

ONE DOWNEY WAS ADJUDGED A VOLUNTARY BANKRUPT IN NOVEMBER, 1938. 
PRIOR TO JUNE, 1936, DOWNEY HAD BEEN ENGAGED IN BUSINESS,
UNINCORPORATED, AND HAD INCURRED A DEBT TO THE PREDECESSOR OF STANDARD
COATED PRODUCTS CORPORATION OF APPROXIMATELY $104,000.  IN THAT MONTH
HE FORMED A CORPORATION, DOWNEY WALLPAPER & PAINT CO., UNDER THE LAWS
OF CALIFORNIA.  DOWNEY, HIS WIFE AND HIS SON WERE THE SOLE
STOCKHOLDERS, DIRECTORS AND OFFICERS.  DOWNEY'S STOCK OF GOODS WAS
TRANSFERRED TO THE CORPORATION N1 ON CREDIT, WHICH WAS EXTENDED FROM
TIME TO TIME.  HE LEASED SPACE IN THE STORE BUILDING OCCUPIED BY HIM TO
THE CORPORATION, WHICH CONTINUED BUSINESS AT THE OLD STAND.  EXCEPT FOR
QUALIFYING SHARES,  FN2  NEITHER HE NOR THE OTHER MEMBERS OF HIS FAMILY
PAID CASH FOR THE STOCK WHICH WAS ISSUED TO THEM  FN3  BUT RECEIVED
MOST OF THOSE SHARES A FEW MONTHS PRIOR TO BANKRUPTCY IN SATISFACTION
OF THE BALANCE OF THE OBLIGATION OWED TO HIM BY THE CORPORATION N4. 
RESPONDENT EXTENDED CREDIT TO THE CORPORATION.  AT THE TIME OF DOWNEY'S
BANKRUPTCY RESPONDENT'S CLAIM AMOUNTED TO ABOUT $5,400 AND WAS
UNSECURED. 

ON PETITION OF THE TRUSTEE IN BANKRUPTCY, THE REFEREE ISSUED AN ORDER
TO SHOW CAUSE DIRECTED TO THE CORPORATION, DOWNEY, HIS WIFE AND SON WHY
THE ASSETS OF THE CORPORATION SHOULD NOT BE MARSHALLED FOR THE BENEFIT
OF THE CREDITORS OF THE BANKRUPT ESTATE AND ADMINISTERED BY THE
TRUSTEE.  FN5  DOWNEY ANSWERED.  THERE WAS A HEARING.  THE REFEREE
FOUND, INTER ALIA, THAT THE TRANSFER OF THE PROPERTY TO THE CORPORATION
WAS NOT IN GOOD FAITH BUT WAS MADE FOR THE PURPOSE OF PLACING THE
PROPERTY BEYOND THE REACH OF DOWNEY'S CREDITORS AND OF RETAINING FOR
DOWNEY AND HIS FAMILY ALL OF THE BENEFICIAL INTEREST THEREIN; THAT THE
STOCK WAS ISSUED IN SATISFACTION OF DOWNEY'S CLAIM AGAINST THE
CORPORATION, WHEN DOWNEY WAS HOPELESSLY INSOLVENT, TO PREVENT DOWNEY'S
CREDITORS FROM REACHING THE ASSETS SO TRANSFERRED; THAT THE CORPORATION
WAS "NOTHING BUT A SHAM AND A CLOAK" DEVISED BY DOWNEY "FOR THE PURPOSE
OF PRESERVING AND CONSERVING HIS ASSETS" FOR THE BENEFIT OF HIMSELF AND
HIS FAMILY; AND THAT THE CORPORATION WAS FORMED FOR THE PURPOSE OF
HINDERING, DELAYING AND DEFRAUDING HIS CREDITORS.  THE REFEREE
ACCORDINGLY ORDERED THAT THE PROPERTY OF THE CORPORATION WAS PROPERTY
OF THE BANKRUPT ESTATE AND THAT IT BE ADMINSTERED FOR THE BENEFIT OF
THE CREDITORS OF THE ESTATE.  THAT ORDER WAS ENTERED ON APRIL 7, 1939. 
NO APPEAL FROM THAT ORDER WAS TAKEN. 

RESPONDENT, WHO WAS NOT A PARTY TO THAT PROCEEDING, LATER FILED ITS
CLAIM STATING THAT AS A CREDITOR OF THE CORPORATION IT HAD A PRIOR
RIGHT TO DISTRIBUTION OF THE FUNDS IN THE HANDS OF THE TRUSTEE RECEIVED
FROM THE LIQUIDATION OF THE ASSETS OF THE CORPORATION.  IT SECURED AN
ORDER TO SHOW CAUSE WHY THE TRUSTEE SHOULD NOT SO APPLY SUCH FUNDS. 
THE TRUSTEE OBJECTED TO THE ALLOWANCE OF THE CLAIM AS A PRIOR CLAIM AND
CONTENDED THAT IT SHOULD BE ALLOWED ONLY AS A GENERAL UNSECURED CLAIM. 
THERE WAS A HEARING.  THE REFEREE FOUND THAT RESPONDENT, WITH KNOWLEDGE
OF DOWNEY'S INDEBTEDNESS, WAS INSTRUMENTAL IN GETTING HIM TO FORM THE
CORPORATION AND HAD FULL KNOWLEDGE OF ITS FRAUDULENT CHARACTER.  HE
DISALLOWED RESPONDENT'S CLAIM AS A PRIOR CLAIM BUT ALLOWED IT AS A
GENERAL UNSECURED CLAIM.  THAT ORDER WAS CONFIRMED.  ON APPEAL, THE
CIRCUIT COURT OF APPEALS REVERSED, HOLDING THAT RESPONDENT'S CLAIM
SHOULD BE ACCORDED PRIORITY AGAINST THE FUNDS REALIZED FROM THE
LIQUIDATION OF THE CORPORATION'S PROPERTY.  114 F.2D 49.  WE GRANTED
THE PETITION FOR CERTIORARI BECAUSE OF THE IMPORTANCE IN ADMINISTRATION
OF THE BANKRUPTCY ACT OF THE QUESTIONS RAISED. 

WE THINK THE CIRCUIT COURT OF APPEALS WAS IN ERROR. 

1.  THE ORDER ENTERED IN THE SUMMARY PROCEEDINGS AGAINST DOWNEY, HIS
WIFE, HIS SON AND HIS FAMILY CORPORATION WAS A FINAL ORDER BINDING AS
BETWEEN THE PARTIES.  THERE CAN BE NO QUESTION BUT THAT THE
JURISDICTION OF THE BANKRUPTCY COURT WAS PROPERLY EXERCISED BY SUMMARY
PROCEEDINGS.  THE CIRCUMSTANCES ARE MANY AND VARIED WHERE AN AFFILIATED
CORPORATION DOES NOT HAVE, AS AGAINST THE TRUSTEE OF THE DOMINANT
STOCKHOLDER, THE STATUS OF A SUBSTANTIAL ADVERSE CLAIMANT WITHIN THE
RULE OF TAUBEL-SCOTT-KITZMILLER CO. V. FOX, 264 U.S. 426.  THE LEGAL
EXISTENCE OF THE AFFILIATED CORPORATION DOES NOT PER SE GIVE IT
STANDING TO INSIST ON A PLENARY SUIT.  IN RE MUNCIE PULP CO., 139 F.
546; W.A. LILLER BLDG. CO. V. REYNOLDS, 247 F. 90; IN RE RIEGER, KAPNER
& ALTMARK, 157 F. 609; IN RE EILERS MUSIC HOUSE, 270 F. 915; CENTRAL
REPUBLIC BANK & TRUST CO. V. CALDWELL, 58 F.2D 721; COMMERCE TRUST CO.
V. WOODBURY, 77 F.2D 478; FISH V. EAST, 114 F.2D 177.  MERE LEGAL
PARAPHERNALIA WILL NOT SUFFICE TO TRANSFORM INTO A SUBSTANTIAL ADVERSE
CLAIMANT A CORPORATION WHOSE AFFAIRS ARE SO CLOSELY ASSIMILATED TO THE
AFFAIRS OF THE DOMINANT STOCKHOLDER THAT IN SUBSTANCE IT IS LITTLE MORE
THAN HIS CORPORATE POCKET.  WHATEVER THE FULL REACH OF THAT RULE MAY
BE, IT IS CLEAR THAT A FAMILY CORPORATION'S ADVERSE CLAIM IS MERELY
COLORABLE WHERE, AS IN THIS CASE, THE CORPORATION IS FORMED IN ORDER TO
CONTINUE THE BANKRUPT'S BUSINESS, WHERE THE BANKRUPT REMAINS IN
CONTROL, AND WHERE THE EFFECT OF THE TRANSFER IS TO HINDER, DELAY OR
DEFRAUD HIS CREDITORS.  IN RE SCHOENBERG, 70 F.2D 321; IN RE BERKOWITZ,
173 F. 1013.  AND SEE GLENN, LIQUIDATION, SECS. 30-32.  CF. SHAPIRO V.
WILGUS, 287 U.S. 348.  HENCE, DOWNEY'S CORPORATION WAS IN NO POSITION
TO ASSERT AGAINST DOWNEY'S TRUSTEE THAT IT WAS SO SEPARATE AND
INSULATED FROM DOWNEY'S OTHER BUSINESS AFFAIRS AS TO STAND IN AN
INDEPENDENT AND ADVERSE POSITION.  FURTHERMORE, THERE WAS NO APPEAL
FROM THE ORDER ENTERED IN THE SUMMARY PROCEEDINGS.  IT THEREFORE COULD
NOT BE COLLATERALLY ATTACKED IN THE PROCEEDINGS BY WHICH RESPONDENT
SOUGHT PRIORITY FOR ITS CLAIM. 

2.  THAT CONCLUSION, OF COURSE, DOES NOT MEAN THAT THE ORDER
CONSOLIDATING THE ESTATES DID, OR IN THE ABSENCE OF THE RESPONDENT AS A
PARTY COULD, DETERMINE WHAT PRIORITY, IF ANY, IT HAD TO THE CORPORATE
ASSETS.  IN RE FOLEY, 4 F.2D 154.  ALL QUESTIONS OF FRAUDULENT
CONVEYANCE ASIDE, CREDITORS OF THE CORPORATION NORMALLY WOULD BE
ENTITLED TO SATISFY THEIR CLAIMS OUT OF CORPORATE ASSETS PRIOR TO ANY
PARTICIPATION BY THE CREDITORS OF THE STOCKHOLDER.  IN RE SMITH, 36
F.2D 697.  SUCH PRIORITY, HOWEVER, WOULD BE DENIED IF THE CORPORATION'S
CREDITORS WERE PARTIES TO A FRAUDULENT TRANSFER OF THE STOCKHOLDER'S
ASSETS TO THE CORPORATION.  FURTHERMORE, WHERE THE TRANSFER WAS
FRAUDULENT OR WHERE THE RELATIONSHIP BETWEEN THE STOCKHOLDER AND THE
CORPORATION WAS SUCH AS TO JUSTIFY THE USE OF SUMMARY PROCEEDINGS TO
ABSORB THE CORPORATE ASSETS INTO THE BANKRUPTCY ESTATE OF THE
STOCKHOLDER, THE CORPORATION'S UNSECURED CREDITORS WOULD HAVE THE
BURDEN OF SHOWING THAT THEIR EQUITY WAS PARAMOUNT IN ORDER TO OBTAIN
PRIORITY AS RESPECTS THE CORPORATE ASSETS.  CF. NEW YORK TRUST CO. V.
ISLAND OIL & TRANSPORT CORP., 56 F.2D 580.  THE POWER OF THE BANKRUPTCY
COURT TO SUBORDINATE CLAIMS OR TO ADJUDICATE EQUITIES ARISING OUT OF
THE RELATIONSHIP BETWEEN THE SEVERAL CREDITORS IS COMPLETE.  TAYLOR V.
STANDARD GAS & ELECTRIC CO., 306 U.S. 307; PEPPER V. LITTON, 308 U.S.
295; BIRD & SONS SALES CORP. V. TOBIN, 78 F.2D 371.  BUT THE THEME OF
THE BANKRUPTCY ACT IS EQUALITY OF DISTRIBUTION.  SEC. 65-A; MOORE V.
BAY, 284 U.S. 4.  TO BRING HIMSELF OUTSIDE OF THAT RULE AN UNSECURED
CREDITOR CARRIES A BURDEN OF SHOWING BY CLEAR AND CONVINCING EVIDENCE
THAT ITS APPLICATION TO HIS CASE SO AS TO DENY HIM PRIORITY WOULD WORK
AN INJUSTICE.  SUCH BURDEN HAS BEEN SUSTAINED BY CREDITORS OF THE
AFFILIATED CORPORATION AND THEIR PARAMOUNT EQUITY HAS BEEN ESTABLISHED
WHERE THERE WAS NO FRAUD IN THE TRANSFER, WHERE THE TRANSFEROR REMAINED
SOLVENT, AND WHERE THE CREDITORS HAD EXTENDED CREDIT TO THE
TRANSFEREE.  COMMERCE TRUST CO. V. WOODBURY, SUPRA. 

BUT IN THIS CASE THERE WAS A FRAUDULENT TRANSFER.  THE SAVING CLAUSE
IN 13 ELIZ.  WHICH PROTECTED INNOCENT PURCHASERS FOR VALUE  FN6  WAS
NOT BROAD ENOUGH TO PROTECT MERE UNSECURED CREDITORS OF THE FRAUDULENT
TRANSFEREE.  CLARK'S ADMINISTRATOR V. RUCKER, 7 B. MON.  (KY.)  583;
MULLANPHY SAVINGS BANK V. LYLE, 75 TENN. 431; POWELL V. IVEY, 88 N.C.
256; LOCKREN V. RUSTAN, 9 N.D. 43, 45; 81 N.W. 60.  TO BE SURE,
CREDITORS OF A FRAUDULENT TRANSFEREE HAVE AT TIMES BEEN ACCORDED
PRIORITY OVER THE CREDITORS OF THE TRANSFEROR WHERE THEY HAVE "TAKEN
THE PROPERTY INTO THEIR OWN CUSTODY."  1 GLENN, FRAUDULENT CONVEYANCES
AND PREFERENCES (1940) SEC. 238.  CF. O'GASAPIAN V. DANIELSON, 284
MASS. 27; 187 N.E. 107.  THE SAME RESULT OBTAINS IN CASE OF BONA FIDE
LIEN CREDITORS OF THE FRAUDULENT TRANSFEREE.  W.T. RAWLEIGH CO. V.
GROSECLOSE, 174 OKL. 193; 49 P.2D 1085; PLAUCHE V. STREATER INVESTMENT
CORP., 189 LA. 785; 180 SO. 637.  CF. HASKELL V. PHELPS, 191 WASH. 567;
71 P.2D 550.  AND ESTOPPEL OR OTHER EQUITABLE CONSIDERATIONS MIGHT WELL
RESULT IN THE AWARD OF PRIORITY EVEN TO UNSECURED CREDITORS OF THE
TRANSFEREE, THE CONVEYANCE BEING GOOD BETWEEN THE PARTIES.  FN7  CF.
KENNEDY V. GEORGIA STATE BANK, 8 HOW.  586, 613.  YET NONE OF THESE
CONSIDERATIONS IS APPLICABLE HERE.  THE FACTS DO NOT JUSTIFY THE
INVOCATION OF ESTOPPEL AGAINST DOWNEY'S INDIVIDUAL CREDITORS. 
RESPONDENT IS NEITHER A LIEN CREDITOR NOR AN INNOCENT GRANTEE FOR
VALUE.  AT BEST IT IS IN NO MORE FAVORABLE POSITION THAN A JUDGMENT
CREDITOR WHO HAS NOT LEVIED EXECUTION.  FURTHERMORE, RESPONDENT HAD AT
LEAST SOME KNOWLEDGE AS TO THE FRAUDULENT CHARACTER OF DOWNEY'S
CORPORATION.  CF. GOODWIN V. HAMMOND, 13 CAL. 168; BULL V. FORD, 66
CAL. 176; 4 P. 1175.  AND TITLE TO THE PROPERTY FRAUDULENTLY CONVEYED
HAS VESTED IN THE BANKRUPTCY TRUSTEE OF THE GRANTOR.  WE HAVE NOT BEEN
REFERRED TO ANY STATE LAW OR ANY EQUITABLE CONSIDERATIONS WHICH UNDER
THESE CIRCUMSTANCES WOULD ACCORD RESPONDENT THE PRIORITY WHICH IT
SEEKS.  IT THEREFORE IS ENTITLED ONLY TO PARI PASSU PARTICIPATION WITH
DOWNEY'S INDIVIDUAL CREDITORS.  BUFFUM V. BARCELOUX CO., 289 U.S. 227. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  A NOTICE OF THE INTENDED SALE WAS RECORDED UNDER THE CALIFORNIA
BULK SALES LAW.  CIVIL CODE, SEC. 3440. 

FN2  THE SHARES HAD A PAR VALUE OF $100.  DOWNEY APPARENTLY PAID $500
IN CASH FOR THE QUALIFYING SHARES. 

FN3  THERE WERE 99 SHARES ISSUED.  ON JULY 1, 1938, DOWNEY CAUSED 49
SHARES TO BE TRANSFERRED TO HIS WIFE AND 25 SHARES TO HIS SON.  THOSE
TRANSFERS, ACCORDING TO THE REFEREE, WERE "ENTIRELY WITHOUT
CONSIDERATION" TO DOWNEY. 

FN4  THERE IS SOME DISPUTE AS TO THE AMOUNT OF THIS OBLIGATION. 
PETITIONER INSISTS, AND THE FINDINGS OF THE REFEREE LEND SOME SUPPORT
TO HIS VIEW, THAT THE STOCK OF GOODS WAS TRANSFERRED TO THE CORPORATION
AT THE INVENTORY PRICE - ABOUT $14,000.  THE COURT BELOW SAID THAT IT
WAS TRANSFERRED AT $7,500.  THE CORPORATION APPARENTLY HAD PAID $5,000
ON THAT OBLIGATION. 

FN5  SHORTLY AFTER THE ADJUDICATION THE RECEIVER, PURSUANT TO A
STIPULATION, TOOK POSSESSION OF THE PROPERTY OF THE CORPORATION. 

FN6  SEE CLEMENTS V. MOORE, 6 WALL.  299; HARRELL V. BEALL, 17 WALL. 
590.  THAT THE SAME RESULT FOLLOWS IN ABSENCE OF THE SAVING CLAUSE, SEE
ASTOR V. WELLS, 4 WHEAT.  466, INTERPRETING L. OHIO, 1809-10, CH. LVII,
SEC. 2.  AND SEE 1 GLENN, FRAUDULENT CONVEYANCES AND PREFERENCES (1940)
SEC. 237. 

FN7  ALL QUESTION OF THE RIGHTS OF CREDITORS OF THE GRANTOR ASIDE,
CREDITORS OF THE TRANSFEREE HAVE AT TIMES BEEN ALLOWED TO REACH THE
PROPERTY AFTER ITS RECONVEYANCE TO THE GRANTOR.  CHAPIN V. PEASE, 10
CONN. 69; BUDD V. ATKINSON, 30 N.J. EQ. 530; HEGSTAD V. WYSIECKI, 178
APP. DIV. 733; 165 N.Y.S. 898.  BUT SEE FARMERS' BANK V. GOULD, 48 W.
VA. 99; 35 S.E. 878; WESTERVELT V. HAGGE, 61 NEB. 647; 85 N.W. 852;
BICOCCHI V. CASEY-SWASEY CO., 91 TEX. 259; 42 S.W. 963. 
..END :








GELFERT V. NATIONAL CITY BANK, 313 U.S. 221 


NO. 740.  ARGUED APRIL 3, 4, 1941.  - DECIDED APRIL 28, 1941.  - 257
APP. DIV. 1076 - 14 N.Y.S.2D 995, REVERSED. 


1.  A STATE STATUTE (N.Y. LAWS, 1938, C. 510, AMENDING SEC. 1083 CIVIL
PRAC.  ACT), DIRECTING THAT THE AMOUNT OF A DEFICIENCY JUDGMENT AFTER
FORECLOSURE SALE OF MORTGAGED PROPERTY SHALL BE ASCERTAINED BY
DEDUCTING FROM THE AMOUNT OF THE DEBT THE FAIR AND REASONABLE MARKET
VALUE OF THE PROPERTY (TO BE DETERMINED BY THE COURT UPON AFFIDAVITS OR
OTHERWISE) OR THE SALE PRICE OF THE PROPERTY, WHICHEVER IS HIGHER, IS
NOT INVALID UNDER THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION AS
APPLIED TO THE CASE OF A MORTGAGEE WHO BOUGHT IN THE PROPERTY AT THE
FORECLOSURE SALE FOR MUCH LESS THAN THE DEBT, AND WHO, UNDER THE LAW AS
IT EXISTED WHEN THE MORTGAGE WAS MADE, WOULD HAVE BEEN ENTITLED TO A
DEFICIENCY JUDGMENT FOR THE DIFFERENCE BETWEEN THE AMOUNT OF THE DEBT
AND THE AMOUNT OF THE SALE PRICE.  P. 231. 

THE FACT THAT THE LATER STATUTE WAS NOT BASED ON ANY DECLARED PUBLIC
EMERGENCY AND THAT IT CONFINED THE DETERMINATION OF THE RIGHT TO A
DEFICIENCY JUDGMENT TO THE FORECLOSURE PROCEEDING, LEAVING THE
MORTGAGEE NO ALTERNATIVE REMEDY SUBSTANTIALLY CO-EXTENSIVE WITH THAT
AFFORDED BY THE OLDER STATUTE, DID NOT AFFECT THE VALIDITY OF THE LATER
STATUTE AS APPLIED TO THE MORTGAGE. 

2. IT IS QUITE UNIFORMLY THE RULE IN THIS COUNTRY, AS IN ENGLAND,
THAT WHILE EQUITY WILL NOT SET ASIDE A FORECLOSURE SALE FOR MERE
INADEQUACY OF PRICE, IT WILL DO SO IF THE INADEQUACY IS SO GREAT AS TO
SHOCK THE CONSCIENCE OR IF THERE ARE ADDITIONAL CIRCUMSTANCES AGAINST
ITS FAIRNESS, SUCH AS CHILLED BIDDING.  P. 232. 

3.  THERE IS NO CONSTITUTIONAL REASON WHY, IN LIEU OF THE MORE
RESTRICTED CONTROL BY A COURT OF EQUITY, THE LEGISLATURE CAN NOT
SUBSTITUTE A UNIFORM RULE DESIGNED TO PREVENT MORTGAGEES, BIDDING AT
FORECLOSURE SALES, FROM OBTAINING MORE THAN THEIR JUST DUE.  P. 233. 

GELFERT, EXECUTOR, V. NATIONAL CITY BANK OF NEW YORK. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 312 U.S. 674, TO REVIEW A JUDGMENT ENTERED ON REMITTITUR
FROM THE COURT OF APPEALS OF NEW YORK, 284 N.Y. 13; 29 N.E.2D 449,
WHICH, REVERSING A JUDGMENT OF THE SUPREME COURT, APPELLATE DIVISION,
AFFIRMED AND REINSTATED (1) AN ORDER AT SPECIAL TERM CONFIRMING A
REFEREE'S REPORT OF A MORTGAGE FORECLOSURE SALE AND (2) A DEFICIENCY
JUDGMENT ENTERED PURSUANT TO THAT ORDER. 

AS APPLIED TO A MORTGAGE EXECUTED PRIOR TO ITS ENACTMENT, THE NEW
SEC. 1083 CONTRAVENES THE PROHIBITION OF ART. I, SEC. 10 OF THE FEDERAL
CONSTITUTION AGAINST THE PASSAGE BY A STATE OF LEGISLATION IMPAIRING
THE OBLIGATION OF CONTRACTS. 

IT IS NEITHER EMERGENCY NOR TEMPORARY LEGISLATION.  CF. HOME BUILDING
& LOAN ASSN. V. BLAISDELL, 290 U.S. 398.  IT IS A PERMANENT STATUTE
APPLICABLE TO FORECLOSURES OF ALL MORTGAGES, REGARDLESS OF DATE, AMOUNT
OR PARTIES, AND CONTAINS NO PROVISIONS APPOSITE TO THE RELIEF OF ANY
PRESSING PUBLIC NEEDS.  W. B. WORTHEN CO. V. THOMAS, 292 U.S. 426.  THE
COURT OF APPEALS FOUND THAT IT IS NOT ADDRESSED TO THE GENERAL WELFARE
OF THE STATE, BUT IS DIRECTED SOLELY TO THE PRIVATE CONTRACTUAL RIGHTS
OF PARTIES TO AN INDEBTEDNESS SECURED BY A MORTGAGE ON REAL PROPERTY. 
CF. VEIX V. SIXTH WARD ASSN., 310 U.S. 32. 

THE LAW WHICH PROVIDES A REMEDY FOR THE ENFORCEMENT OF A CONTRACT, AS
THAT LAW EXISTS AT THE TIME OF THE MAKING OF THE CONTRACT, ENTERS INTO
AND BECOMES PART OF THE CONTRACT AS IF FULLY SET FORTH THEREIN, FARMERS
BANK V. FEDERAL RESERVE BANK, 262 U.S. 649; BRONSON V. KINZIE, 1 HOW. 
311, AND SUBSEQUENT LEGISLATION MAY NOT CONSTITUTIONALLY CHANGE SUCH
REMEDY IN ANY MATERIAL RESPECT, AT LEAST UNLESS A SUBSTANTIALLY CO
EXTENSIVE REMEDY REMAINS OR IS FURNISHED THEREBY.  EDWARDS V. KEARZEY,
96 U.S. 595; MCCRACKEN V. HAYWARD, 2 HOW.  608, 612; OSHKOSH WATER
WORKS CO. V. OSHKOSH, 187 U.S. 437, 439; HOME BUILDING & LOAN ASSN. V.
BLAISDELL, 290 U.S. 398, 434.  SEE CLARK V. REYNOLDS, 8 WALL.  318,
322. 

NO REMEDY SUBSTANTIALLY EQUIVALENT TO THAT AFFORDED BY THE OLD SEC.
1083 REMAINS TO THE MORTGAGEE.  THE RIGHT TO RECOVER THE MORTGAGE DEBT
AT LAW, APART FROM THE MORTGAGE SECURITY, IS CIRCUMSCRIBED BY A
STATUTORY PROHIBITION AGAINST THE LEVY OF EXECUTION ON THE MORTGAGOR'S
EQUITY OF REDEMPTION.  NEW YORK CIVIL PRACTICE ACT, SEC. 710.  THE
MAINTENANCE OF A SECOND ACTION, AFTER FORECLOSURE, TO RECOVER A
DEFICIENCY RESULTING FROM THE FORECLOSURE SALE IS PROHIBITED BY STATUTE
EXCEPT BY LEAVE OF THE COURT, NEW YORK CIVIL PRACTICE ACT, SEC. 1078,
BUT SETTLED AUTHORITY IS AGAINST THE GRANTING OF SUCH LEAVE IN RESPECT
OF A PARTY WHO COULD HAVE BEEN MADE A DEFENDANT IN THE FORECLOSURE
ACTION UNLESS SPECIAL CIRCUMSTANCES ARE SHOWN MANIFESTLY REQUIRING THAT
RELIEF.  EQUITABLE LIFE ASSURANCE SOCIETY V. STEVENS, 63 N.Y. 341;
SCOFIELD V. DOSCHER, 72 N.Y. 491; VANDERBILT V. SCHREYER, 91 N.Y. 392;
MORRISON V. SLATER, 128 APP. DIV. 467; DARMSTADT V. MANSON, 144 APP.
DIV. 249; STEHL V. URIS, 210 APP. DIV. 444.  WHETHER THE NEW SEC. 1083
HAS SUPERSEDED SEC. 1078 SO AS TO FORBID THE GRANTING OF SUCH LEAVE IN
ANY CASE WAS LEFT OPEN BY THE COURT OF APPEALS IN ITS OPINION, BUT SOME
INDICATION WAS GIVEN THAT SUCH A HOLDING WAS NOT IMPROBABLE.  SEE
HONEYMAN V. HANAN, 275 N.Y. 382, 392. 

STATE STATUTES SIMILAR IN PURPOSE AND EFFECT HAVE BEEN HELD
UNCONSTITUTIONAL AS APPLIED TO CONTRACTS IN EXISTENCE AT THE TIME OF
THEIR ENACTMENT.  BRONSON V. KINZIE, 1 HOW.  311; MCCRACKEN V. HAYWARD,
2 HOW.  608; GANTLY'S LESSEE V. EWING, 3 HOW.  707.  CF., JEFFRIES V.
FEDERAL LAND BANK, 302 U.S. 708. 

IN RECENT YEARS, NUMEROUS STATE COURTS OF LAST RESORT HAVE VOIDED
SIMILAR STATUTES AS APPLIED RETROACTIVELY.  BONTAG V. MCCURDY, 59 P.2D
326(ARIZ.); ADAMS V. SPILLYARDS, 61 S.W.2D 686(ARK.); HALES V. SNOWDEN,
65 P.2D 847(CAL.); ATLANTIC LOAN CO. V. PETERSON, 181 GA. 266;
VANDERBILT V. BRUNTON PIANO CO., 111 N.J.L. 596; FEDERAL LAND BANK V.
GARRISON, 193 S.E. 308; CERT. DENIED SUB NOM. JEFFRIES V. FEDERAL LAND
BANK, SUPRA; LANGEVER V. MILLER, 76 S.W.2D 1025(TEX.)  DIST'G HONEYMAN
V. JACOBS, 306 U.S. 539. 

SEE W.B. WORTHEN CO. V. THOMAS, 292 U.S. 426; WORTHEN CO. V.
KAVANAUGH, 295 U.S. 56. 

SO FAR AS THE OPINION IN THE HONEYMAN CASE MAY HAVE INDICATED THAT
THE ACT THERE CONSIDERED WAS SUSTAINABLE, APART FROM THE EXISTENT
EMERGENCY, ON THE GROUND THAT IT MERELY CODIFIED A POWER WHICH COURTS
OF EQUITY IN NEW YORK HAVE ALWAYS POSSESSED TO CONTROL THE MEASURE OF
DEFICIENCY JUDGMENTS IN FORECLOSURE ACTIONS, THE COURT OF APPEALS, IN
AN UNBROKEN LINE OF DECISIONS FROM EARLIEST TIMES TO THE CASE AT BAR,
HAS HELD THAT NO SUCH EQUITABLE JURISDICTION IN FORECLOSURE SUITS EVER
EXISTED OR NOW EXISTS, APART FROM STATUTE, IN NEW YORK.  MORRIS V.
MORANGE, 38 N.Y. 172; WAGER V. LINK, 134 N.Y. 122; FEIBER REALTY CORP.
V. ABEL, 265 N.Y. 94; FRANK V. DAVIS, 135 N.Y. 275, 277-8; EMIGRANT
INDUSTRIAL SAVINGS BANK V. VAN BOKKELEN, 269 N.Y. 110, 116; GUARANTEED
TITLE & MORTGAGE CO. V. SCHEFFRES, 275 N.Y. 30. 

EQUITY COURTS HAVE ALWAYS HAD AND STILL HAVE POWER TO REFUSE
CONFIRMATION OF FORECLOSURE SALES UPON EQUITABLE GROUNDS,  - FRAUD,
COLLUSION, INADEQUACY OF PRICE SO GROSS AS TO SHOCK THE CONSCIENCE OF
THE COURT, ETC.  BUT THE ONLY RELIEF WHICH THE COURT COULD GRANT THE
MORTGAGOR WOULD BE TO ORDER A RESALE.  EMIGRANT INDUSTRIAL SAVINGS BANK
V. VAN BOKKELEN, 269 N.Y. 110, 115. 

IN RESPECT OF MATTERS OF LOCAL LAW, THE PRONOUNCEMENTS OF THE COURT
OF APPEALS ARE CONTROLLING AND CONCLUSIVE UPON THIS COURT.  ERIE R. CO.
V. TOMPKINS, 304 U.S. 64; RUHLIN V. NEW YORK LIFE INS. CO., 304 U.S.
202. 

DISTINGUISHING RICHMOND MORTGAGE & LOAN CORP. V. WACHOVIA BANK &
TRUST CO., 300 U.S. 124. 

THE DECISION AT BAR IS SUSTAINABLE UPON A FURTHER GROUND.  AT THE
TIME THE MORTGAGE HEREIN WAS MADE AND AT THE TIME THE MONEYS SECURED
THEREBY WERE ADVANCED, MORTGAGES EXECUTED ON AND AFTER JULY 1, 1932
WERE, BY EXPRESS STATUTORY EXCEPTION, EXCLUDED FROM THE COVERAGE OF THE
MORATORY DEFICIENCY JUDGMENT ACT.  LAWS OF 1933, CHAP. 794, SEC. 4. 
THE STIMULATION OF BUSINESS BY THE ENCOURAGEMENT OF NEW LOANS WAS AN
INTEGRAL PART OF THE LEGISLATIVE POLICY IN DEALING WITH THE THEN
EXISTING EMERGENCY.  IN EFFECT, THEREFORE, THERE WAS DIRECT LEGISLATIVE
ASSURANCE TO LENDERS THAT LOANS SECURED BY MORTGAGES MADE AFTER JULY 1,
1932 WOULD BE ENFORCEABLE IN THE MANNER PROVIDED BY THE THEN SEC.
1083.  WHILE THIS ASSURANCE MAY NOT HAVE THE FULL CONTRACTUAL FORCE OF
THE GOVERNMENT BONDS INVOLVED IN THE "GOLD CLAUSE" CASES, THERE IS
SUFFICIENT ANALOGY IN THE LEGISLATIVE ATTEMPT, BY THE NEW SEC. 1083, TO
REVOKE ITS PLEDGE RETROACTIVELY, TO GIVE APPRECIABLE APTNESS TO THE
LANGUAGE OF THIS COURT IN ONE OF THOSE CASES.  PERRY V. UNITED STATES,
294 U.S. 330, 351.  SEE HOME OWNERS LOAN CORP. V. ROBINSON, 285 N.W.
768. 

UPON THE SAME ANALYSIS AND FOR THE SAME REASONS THE NEW SEC. 1083, AS
APPLIED TO THE MORTGAGE AT BAR, IS VIOLATIVE OF SEC. 6 OF ARTICLE I OF
THE CONSTITUTION OF THE STATE OF NEW YORK AND IS ALSO INVALID
THEREUNDER.  SLIOSBERG V. NEW YORK LIFE INS. CO., 217 APP. DIV. 67, 72;
AFF'D 244 N.Y. 482; PEOPLE V. OTIS, 90 N.Y. 48. 

THE JUDGMENT IS SUSTAINABLE APART FROM THE CONSTITUTIONAL QUESTION. 
THE PROCEEDINGS IN THE SUPREME COURT, KINGS COUNTY, WERE, AS A MATTER
OF LOCAL PRACTICE, A COMPLIANCE WITH THE REQUIREMENTS OF NEW SEC.
1083. 

THE LOANS SECURED BY THE GUARANTY OF THE APPELLANT'S TESTATOR, WHICH
WAS IN TURN SECURED BY THE MORTGAGE AT BAR, WERE ORDINARY COMMERCIAL
LOANS TO A BUSINESS CORPORATION.  THEY WERE NOT ADVANCES MADE ON THE
SECURITY OF REAL ESTATE, AND NEITHER BY THE AGREEMENT OF THE PARTIES
NOR BY ANY REASONABLE CONSTRUCTION OF THEIR TRANSACTION WAS REAL ESTATE
TO BE THE PRIMARY SOURCE OF REPAYMENT.  IT WOULD BE NEITHER "JUST" NOR
"EQUITABLE" TO COMPEL THE BANK TO CREDIT UPON THE INDEBTEDNESS THUS
INCURRED AN AMOUNT IN EXCESS OF THE ACTUAL PROCEEDS OF THE FORECLOSURE
SALE OF THE PROPERTY WHICH, AT MOST, WAS SECONDARY SECURITY.  IN FACT,
ANY SUCH REQUIREMENT WOULD BE CONTRARY TO THE PUBLIC INTEREST IN THE
STABILITY AND LIQUIDITY OF BANKS.  ROTHSCHILD V. MANUFACTURERS TRUST
CO., 279 N.Y. 355, 359-361.  THE BANK COULD NOT HAVE AGREED AT THE
INCEPTION OF THE TRANSACTION TO ACCEPT LAND IN REPAYMENT, FOR THAT
WOULD HAVE BEEN, IN EFFECT, AN AGREEMENT TO PURCHASE REAL PROPERTY,
WHICH IS PROHIBITED BY THE NATIONAL BANKING ACT, 44 STAT. 1277, C. 191,
SEC. 3; 12 U.S.C. SEC. 29.  THE PUBLIC POLICY UNDERLYING THIS STATUTE
IS THE DESIRABILITY OF KEEPING THE CAPITAL OF BANKS LIQUID AND OF
PREVENTING THE ACCUMULATION OF REAL ESTATE IN THEIR HANDS, NATIONAL
BANK V. MATTHEW, 98 U.S. 621, 626, AND IT WOULD BE A MANIFEST
FRUSTRATION OF THAT POLICY TO PERMIT A BORROWER TO CONVERT HIS
OBLIGATION TO REPAY HIS LOAN IN CASH INTO A RIGHT TO REPAY IT WITH REAL
ESTATE MERELY BECAUSE THE BANK HAD TAKEN A MORTGAGE AS ADDITIONAL
SECURITY. 

NOR IS THE INSTANT DECISION UNJUST OR INEQUITABLE TO THE APPELLANT. 
THE DEBT WAS CONTRACTED IN 1937 AND WAS TO BE REPAID WITHIN A SHORT
TIME.  THE SAME GENERAL ECONOMIC CONDITIONS PREVAILED THROUGHOUT THIS
PERIOD. 

THE JUDGMENT IS SUSTAINABLE ON THE GROUND THAT THE PRICE REALIZED AT
THE FORECLOSURE SALE WAS THE FAIR AND REASONABLE MARKET VALUE OF THE
PREMISES AT THE TIME OF SUCH SALE. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT BY RESPONDENT TO FORECLOSE A MORTGAGE MADE IN
DECEMBER, 1932, BY CARPENTER.  AT THAT TIME SEC. 1083 OF THE NEW YORK
CIVIL PRACTICE ACT PROVIDED THAT THE AMOUNT OF THE DEFICIENCY JUDGMENT
WAS TO BE MEASURED BY THE RESIDUE OF THE DEBT REMAINING UNSATISFIED
AFTER A SALE OF THE MORTGAGED PROPERTY AND THE APPLICATION OF THE
PROCEEDS PURSUANT TO THE DIRECTIONS CONTAINED IN THE JUDGMENT.  IN
NOVEMBER, 1938, A JUDGMENT OF FORECLOSURE AND SALE WAS ENTERED FOR
$18,401.25, AND IN DECEMBER, 1938, THE FORECLOSURE SALE WAS HELD AT
WHICH THE PROPERTY WAS PURCHASED BY RESPONDENT'S NOMINEE FOR $4,000. 
THE REFEREE, APPOINTED BY THE COURT TO SELL, REPORTED A DEFICIENCY
WHICH AFTER THE INCLUSION OF TAXES, FEES AND EXPENSES WAS COMPUTED AT
$16,162.12.  RESPONDENT MOVED TO CONFIRM THE REFEREE'S REPORT OF SALE
AND ASKED THAT A DEFICIENCY JUDGMENT BE ENTERED FOR THAT AMOUNT. 
PETITIONER TOOK EXCEPTIONS TO THE REPORT AND MADE A CROSS-MOTION TO
HAVE THE COURT FIX THE VALUE OF THE PROPERTY FOR THE PURPOSE OF
DETERMINING THE AMOUNT OF THE DEFICIENCY JUDGMENT ON THE GROUND THAT
THE SALE PRICE WAS "WHOLLY INEQUITABLE AND UNCONSCIONABLE."  A NEW SEC.
1083  FN1  (L. 1938, CH. 510), EFFECTIVE APRIL 7, 1938, PROVIDES IN
SUBSTANCE THAT THE COURT IN DETERMINING THE AMOUNT OF A DEFICIENCY
JUDGMENT SHOULD, ON APPROPRIATE MOTION, "DETERMINE, UPON AFFIDAVIT OR
OTHERWISE AS IT SHALL DIRECT, THE FAIR AND REASONABLE MARKET VALUE OF
THE MORTGAGED PREMISES" AND SHOULD DEDUCT FROM THE AMOUNT OF THE DEBT
THE "MARKET VALUE AS DETERMINED BY THE COURT OR THE SALE PRICE OF THE
PROPERTY WHICHEVER SHALL BE THE HIGHER."  THE RIGHT TO RECOVER ANY
DEFICIENCY IS MADE DEPENDENT ON THE MAKING OF SUCH A MOTION.  THE COURT
DENIED PETITIONER'S CROSS-MOTION  FN2  AND DIRECTED THE ENTRY OF A
DEFICIENCY JUDGMENT FOR $16,162.12.  THE JUDGMENT OF THE APPELLATE
DIVISION DENYING RESPONDENT A DEFICIENCY JUDGMENT BECAUSE IT HAD NOT
MADE A MOTION FOR ONE UNDER THE NEW SEC. 1083(257 APP. DIV. 465, 13
N.Y.S.2D 600), WAS REVERSED BY THE COURT OF APPEALS, WHICH HELD, ONE
JUDGE DISSENTING, THAT THE NEW SEC. 1083, AS APPLIED TO MORTGAGE
CONTRACTS PREVIOUSLY MADE, VIOLATED THE CONTRACT CLAUSE OF THE FEDERAL
CONSTITUTION.  284 N.Y. 13, 29 N.E.2D 449.  WE GRANTED THE PETITION FOR
CERTIORARI BECAUSE OF THE IMPORTANT CONSTITUTIONAL QUESTION WHICH WAS
RAISED. 

AS NOTED BY THE COURT OF APPEALS, THE MEASURE OF A DEFICIENCY UNDER
THE NEW SEC. 1083 IS IN SUBSTANCE THE SAME AS THAT PRESCRIBED BY THE
NEW YORK MORATORY DEFICIENCY JUDGMENT ACT - SEC. 1083-A OF THE CIVIL
PRACTICE ACT.  THE LATTER SECTION WAS SUSTAINED BY THIS COURT UNDER THE
CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION IN HONEYMAN V. JACOBS, 306
U.S. 539.  BUT THE COURT OF APPEALS SAID THAT THE NEW SEC. 1083, UNLIKE
THE MORATORY DEFICIENCY JUDGMENT ACT, IS NOT ADDRESSED TO A DECLARED
PUBLIC EMERGENCY, IS UNRESTRICTED IN ITS APPLICATION,  FN3 "CONCERNS
MERELY THE PRIVATE CONTRACT RELATIONSHIP OF THE PARTIES TO A REAL
PROPERTY MORTGAGE," IS NOT "DESIGNED FOR THE RELIEF OF URGENT PUBLIC
NEEDS," IS NOT "CONDITIONED UPON ANY EQUITABLE FACTOR," LEAVES "NO ROOM
FOR THE PLAY OF ANY EQUITABLE CONSIDERATION," BENEFITS "EVERY MORTGAGOR
IRRESPECTIVE OF THE CHARACTER OR AMOUNT OF HIS INVESTMENT," AND BURDENS
"EVERY MORTGAGEE NO MATTER WHAT HIS NECESSITIES."  THE COURT POINTED
OUT THAT, UNDER PREVIOUSLY EXISTING STATUTES OF NEW YORK, THE LIABILITY
FOR A DEFICIENCY WAS TO BE FINALLY DETERMINED BY A JUDGMENT OF
FORECLOSURE AND SALE, THAT THE "SUBSEQUENT DOCKETING OF A DEFICIENCY
JUDGMENT WAS A MERELY CLERICAL ACT," AND THAT THE DEFICIENCY WAS TO BE
ASCERTAINED BY A SALE AND "NOT BY THE ESTIMATES OF WITNESSES OR OTHER
LESS SATISFACTORY EVIDENCE."  IT HELD THAT THAT SYSTEM OF FORECLOSURE
"ENTERED INTO THE ENGAGEMENT OF THE PRESENT PARTIES AND CREATED AND
DEFINED THE LEGAL AND EQUITABLE OBLIGATIONS OF THEIR CONTRACT."  IT
ALSO POINTED OUT THAT, UNLIKE THE SITUATION IN RICHMOND MORTGAGE & LOAN
CORP. V. WACHOVIA BANK & TRUST CO., 300 U.S. 124, THERE REMAINED UNDER
THE LAWS OF NEW YORK NO REMEDY AVAILABLE TO THE MORTGAGEE WHICH WAS
"SUBSTANTIALLY COEXTENSIVE" WITH THAT AFFORDED BY THE OLD SEC. 1083,
SINCE, THOUGH AN ACTION AT LAW FOR THE DEBT MIGHT LIE, THE JUDGMENT
DEBTOR'S EQUITY OF REDEMPTION COULD NOT BE SOLD UNDER AN EXECUTION UPON
THAT JUDGMENT, AND SINCE THE RIGHT TO BRING A SECOND ACTION TO RECOVER
A DEFICIENCY RESULTING ON A FORECLOSURE SALE, IF IT EXISTED AT ALL
UNDER THE NEW LEGISLATION, WAS DRASTICALLY RESTRICTED.  ACCORDINGLY, IT
HELD THAT IN LIGHT OF SUCH CASES AS BARNITZ V. BEVERLY, 163 U.S. 118,
THE NEW SEC. 1083 COULD NOT BE APPLIED TO MORTGAGE CONTRACTS PREVIOUSLY
MADE, WITHOUT VIOLATION OF THE CONTRACT CLAUSE OF THE FEDERAL
CONSTITUTION. 

WE TAKE A DIFFERENT VIEW.  FN4 

THE FORMULA WHICH A LEGISLATURE MAY ADOPT FOR DETERMINING THE AMOUNT
OF A DEFICIENCY JUDGMENT IS NOT FIXED AND INVARIABLE.  THAT WHICH
EXISTS AT THE DATE OF THE EXECUTION OF THE MORTGAGE DOES NOT BECOME SO
EMBEDDED IN THE CONTRACT BETWEEN THE PARTIES THAT IT CANNOT BE
CONSTITUTIONALLY ALTERED.  AS THIS COURT SAID IN HOME BUILDING & LOAN
ASSN. V. BLAISDELL, 290 U.S. 398, 435, "NOT ONLY ARE EXISTING LAWS READ
INTO CONTRACTS IN ORDER TO FIX OBLIGATIONS AS BETWEEN THE PARTIES, BUT
THE RESERVATION OF ESSENTIAL ATTRIBUTES OF SOVEREIGN POWER IS ALSO READ
INTO CONTRACTS AS A POSTULATE OF THE LEGAL ORDER."  AND SEE VOELLER V.
NEILSTON WAREHOUSE CO., 311 U.S. 531.  IT IS THAT RESERVED LEGISLATIVE
POWER WITH WHICH WE ARE HERE CONCERNED. 

THE CONTROL OF JUDICIAL SALES OF REALTY BY COURTS OF EQUITY AND BY
LEGISLATURES IN ORDER TO PREVENT SACRIFICIAL PRICES HAS A LONG
HISTORY.  WEINER, CONFLICTING FUNCTIONS OF THE UPSET PRICE, 27 COL. L.
REV. 132, 133, ET SEQ. IN CHANCERY SALES IN ENGLAND DURING THE
EIGHTEENTH CENTURY, THERE DEVELOPED THE PRACTICE OF OPENING THE
BIDDING, PRIOR TO CONFIRMATION, ON AN OFFER TO ADVANCE THE PRICE 10 PER
CENT. GRAFFAM V. BURGESS, 117 U.S. 180, 191.  THAT PRACTICE, MUCH
CRITICIZED BY LORD ELDON, WAS GRADUALLY SUPPLANTED BY RESERVED BIDDING
IN THE FIRST INSTANCE BY EQUITY (JERVOISE V. CLARKE, 1 JAC.  & W. 388)
AND SUBSEQUENTLY BY STATUTE.  SALE OF LAND BY AUCTION ACT, 1867, 30 &
31 VICT.  C. 48, SEC. 7; GRAFFAM V. BURGESS, SUPRA, P. 191; 1 DANIELL,
CHANCERY PRACTICE (7TH ED. 1901) PP. 879-880.  THOUGH THE EARLY ENGLISH
RULE OF ADVANCE BIDDING FOUND LITTLE FOOTHOLD IN THIS COUNTRY, RESERVED
BIDDING HAS ITS COUNTERPART HERE IN THE OCCASIONAL UTILIZATION BY
EQUITY COURTS OF THE UPSET PRICE IN MORTGAGE FORECLOSURES.  BLAIR V.
ST. LOUIS, H. & K.R. CO., 25 F. 232; PEWABIC MINING CO. V. MASON, 145
U.S. 349; 2 BONBRIGHT, VALUATION OF PROPERTY, PP. 849, ET SEQ.; STETSON
ET AL., SOME LEGAL PHASES OF CORPORATE FINANCING, REORGANIZATION AND
REGULATION (1927), P. 202.  AND IT IS QUITE UNIFORMLY THE RULE IN THIS
COUNTRY, AS IN ENGLAND, THAT WHILE EQUITY WILL NOT SET ASIDE A SALE FOR
MERE INADEQUACY OF PRICE,  FN5  IT WILL DO SO IF THE INADEQUACY IS SO
GREAT AS TO SHOCK THE CONSCIENCE OR IF THERE ARE ADDITIONAL
CIRCUMSTANCES AGAINST ITS FAIRNESS, SUCH AS CHILLED BIDDING.  COCKS V.
IZARD, 7 WALL.  559; GRAFFAM V. BURGESS, SUPRA; BALLENTYNE V. SMITH,
205 U.S. 285.  BEYOND THAT, A NUMBER OF STATES BY STATUTE HAVE
ENDEAVORED TO PREVENT PROPERTY GOING FOR A SONG AT JUDICIAL SALES. 
PROVISIONS THAT THE PROPERTY SHALL NOT BE SOLD AT LESS THAN A
DESIGNATED PERCENTAGE OF ITS APPRAISED VALUE, AND REQUIREMENTS THAT A
STATED PERCENTAGE OF THE APPRAISED VALUE ABOVE THE SALES PRICE MUST BE
CREDITED ON THE DEBT, ARE ILLUSTRATIVE.  3 JONES, MORTGAGES (8TH ED.
1928) SECS. 1695 ET SEQ., 2 BONBRIGHT, VALUATION OF PROPERTY, PP. 839
ET SEQ. 

WE MENTION THESE MATTERS HERE BECAUSE THEY INDICATE THAT FOR ABOUT
TWO CENTURIES THERE HAS BEEN A RATHER CONTINUOUS EFFORT, EITHER THROUGH
GENERAL RULE OR BY APPEAL TO THE CHANCELLOR IN SPECIFIC CASES, TO
PREVENT THE MACHINERY OF JUDICIAL SALES FROM BECOMING AN INSTRUMENT OF
OPPRESSION.  AND, SO FAR AS MORTGAGE FORECLOSURES ARE CONCERNED,
NUMEROUS DEVICES HAVE BEEN EMPLOYED TO SAFEGUARD MORTGAGORS FROM SALES
WHICH WILL, OR MAY, RESULT IN MORTGAGEES COLLECTING MORE THAN THEIR
DUE.  THE VARIETY OF FORMULAE WHICH HAS BEEN EMPLOYED TO THAT END IS
AMPLE EVIDENCE NOT ONLY OF THE INTRUSION WHICH ADVANCED NOTIONS OF
FAIRNESS HAVE MADE ON THE EARLIER CONCERN FOR STABILITY OF JUDICIAL
SALES BUT ALSO OF THE FLEXIBILITY OF THE STANDARDS OF FAIRNESS
THEMSELVES.  UNDERLYING THAT CHANGE HAS BEEN THE REALIZATION THAT THE
PRICE WHICH PROPERTY COMMANDS AT A FORCED SALE MAY BE HARDLY EVEN A
ROUGH MEASURE OF ITS VALUE.  THE PARALYSIS OF REAL ESTATE MARKETS
DURING PERIODS OF DEPRESSION, THE WIDE DISCREPANCY BETWEEN THE MONEY
VALUE OF PROPERTY TO THE MORTGAGEE AND THE CASH PRICE WHICH THAT
PROPERTY WOULD RECEIVE AT A FORCED SALE, THE FACT THAT THE PRICE
REALIZED AT SUCH A SALE MAY BE A FAR CRY FROM THE PRICE AT WHICH THE
PROPERTY WOULD BE SOLD TO A WILLING BUYER BY A WILLING SELLER, REFLECT
THE CONSIDERATIONS WHICH HAVE MOTIVATED DEPARTURES FROM THE THEORY THAT
COMPETITIVE BIDDING IN THIS FIELD AMPLY PROTECTS THE DEBTOR. 

MORTGAGEES ARE CONSTITUTIONALLY ENTITLED TO NO MORE THAN PAYMENT IN
FULL.  FN6  HONEYMAN V. JACOBS, SUPRA.  THEY CANNOT BE HEARD TO
COMPLAIN ON CONSTITUTIONAL GROUNDS IF THE LEGISLATURE TAKES STEPS TO
SEE TO IT THAT THEY GET NO MORE THAN THAT.  AS WE HAVE SEEN, EQUITY
WILL INTERVENE IN INDIVIDUAL CASES WHERE IT IS PALPABLY APPARENT THAT
GROSS UNFAIRNESS IS IMMINENT.  THAT IS THE LAW OF NEW YORK.  284 N.Y.
13, 20; 29 N.E.2D 449.  AND SEE FISHER V. HERSEY, 78 N.Y. 387.  BUT
THERE IS NO CONSTITUTIONAL REASON WHY IN LIEU OF THE MORE RESTRICTED
CONTROL BY A COURT OF EQUITY THE LEGISLATURE CANNOT SUBSTITUTE A
UNIFORM COMPREHENSIVE RULE DESIGNED TO REDUCE OR TO AVOID, IN THE RUN
OF CASES, THE CHANCE THAT THE MORTGAGEE WILL BE PAID MORE THAN ONCE. 
CF. SURING STATE BANK V. GIESE, 210 WIS. 489; 246 N.W. 556.  CERTAINLY
UNDER THIS STATUTE IT CANNOT BE SAID THAT MORE THAN THAT WAS
ATTEMPTED.  THE "FAIR AND REASONABLE MARKET VALUE" OF THE PROPERTY HAS
AN OBVIOUS AND DIRECT RELEVANCY TO A DETERMINATION OF THE AMOUNT OF THE
MORTGAGEE'S PROSPECTIVE LOSS.  IN A GIVEN CASE THE APPLICATION OF A
SPECIFIED CRITERION OF VALUE MAY NOT RESULT IN A DETERMINATION OF
ACTUAL LOSS WITH MATHEMATICAL CERTITUDE.  BUT "INCIDENTAL INDIVIDUAL
INEQUALITY" IS NOT FATAL.  PHELPS V. BOARD OF EDUCATION, 300 U.S. 319,
324.  THE FACT THAT MEN WILL DIFFER IN OPINION AS TO THE ADEQUACY OF
ANY PARTICULAR YARDSTICK OF VALUE EMPHASIZES THAT THE APPROPRIATENESS
OF ANY ONE FORMULA IS PECULIARLY A MATTER FOR LEGISLATIVE
DETERMINATION.  CERTAINLY, SO FAR AS MORTGAGEES ARE CONCERNED, THE USE
OF THE CRITERION OF "FAIR AND REASONABLE MARKET VALUE" IN CASES WHERE
THEY OBTAIN THE PROPERTY FOR A LESSER AMOUNT HOLDS PROMISE OF TEMPERING
THE EXTREMES OF BOTH INFLATED AND DEPRESSED MARKET PRICES.  AND SO FAR
AS MORTGAGORS ARE CONCERNED, IT OFFERS SOME ASSURANCE THAT THEY WILL
NOT BE SADDLED WITH MORE THAN THE AMOUNT OF THEIR OBLIGATIONS.  TO HOLD
THAT MORTGAGEES ARE ENTITLED UNDER THE CONTRACT CLAUSE TO RETAIN THE
ADVANTAGES OF A FORCED SALE WOULD BE TO DIGNIFY INTO A CONSTITUTIONALLY
PROTECTED PROPERTY RIGHT THEIR CHANCE TO GET MORE THAN THE AMOUNT OF
THEIR CONTRACTS.  HONEYMAN V. JACOBS, SUPRA.  THE CONTRACT CLAUSE DOES
NOT PROTECT SUCH A STRATEGICAL, PROCEDURAL ADVANTAGE. 

IN CONCLUSION, THE STATUTE IN QUESTION, LIKE THE ONE INVOLVED IN
RICHMOND MORTGAGE & LOAN CORP. V. WACHOVIA BANK & TRUST CO., SUPRA, P.
130, "CANNOT FAIRLY BE SAID TO DO MORE THAN RESTRICT THE MORTGAGEE TO
THAT FOR WHICH HE CONTRACTED, NAMELY, PAYMENT IN FULL."  HERE, AS IN
THAT CASE, THE OBLIGATION OF THE MORTGAGEE'S CONTRACT IS RECOGNIZED;
THE STATUTE DOES NO MORE THAN LIMIT "THAT RIGHT SO AS TO PREVENT HIS
OBTAINING MORE THAN HIS DUE."  ID., P. 130.  TO BE SURE, THE MORTGAGEE
RETAINED IN THAT CASE AN ALTERNATIVE REMEDY, WHILE IN THE INSTANT ONE
THE COURT OF APPEALS HAS SAID THAT UNDER NEW YORK LAW THERE REMAINED NO
ALTERNATIVE REMEDY "SUBSTANTIALLY COEXTENSIVE" WITH THAT WHICH HAD BEEN
REMOVED.  BUT IT IS CLEAR FROM HONEYMAN V. HANAN, 302 U.S. 375, THAT A
REQUIREMENT THAT THE RIGHT TO A DEFICIENCY JUDGMENT SHOULD BE
DETERMINED IN THE FORECLOSURE PROCEEDING, OR THAT A MORTGAGEE IS NOT
ENTITLED TO A DEFICIENCY JUDGMENT UNLESS HE MOVES FOR ONE, RAISES NO
SUBSTANTIAL FEDERAL QUESTION.  AS STATED BY THIS COURT IN THAT CASE
(302 U.S. AT P. 378), THE FEDERAL CONSTITUTION DOES NOT PREVENT THE
STATES FROM DETERMINING, ON DUE NOTICE AND OPPORTUNITY TO BE HEARD, "BY
WHAT PROCESS LEGAL RIGHTS MAY BE ASSERTED OR LEGAL OBLIGATIONS"
ENFORCED.  THE PRINCIPLES OF THOSE CASES ARE APPLICABLE HERE.  THE FACT
THAT AN EMERGENCY WAS NOT DECLARED TO EXIST WHEN THIS STATUTE WAS
PASSED DOES NOT BRING WITHIN THE PROTECTIVE SCOPE OF THE CONTRACT
CLAUSE RIGHTS WHICH WERE DENIED SUCH PROTECTION IN HONEYMAN V. JACOBS,
SUPRA.  SEE HOME BUILDING & LOAN ASSN. V. BLAISDELL, SUPRA. 

RESPONDENT POINTS OUT THAT EARLIER DECISIONS OF THIS COURT HAVE
STRUCK DOWN UNDER THE CONTRACT CLAUSE, AS RESPECTS CONTRACTS PREVIOUSLY
MADE, A STATE STATUTE REQUIRING JUDICIAL SALES TO BRING TWO-THIRDS OF
THE AMOUNT OF THE APPRAISED VALUE OF THE PROPERTY.  BRONSON V. KINZIE,
1 HOW.  311; MCCRACKEN V. HAYWARD, 2 HOW.  608.  AND SEE GANTLY'S
LESSEE V. EWING, 3 HOW.  707.  THOSE CASES, HOWEVER, HAVE BEEN CONFINED
TO THE SPECIAL CIRCUMSTANCES THERE INVOLVED.  HOME BUILDING & LOAN
ASSN. V. BLAISDELL, SUPRA, PP. 431-434.  WE CANNOT PERMIT THE BROAD
LANGUAGE WHICH THOSE EARLY DECISIONS EMPLOYED TO FORCE LEGISLATURES TO
BE BLIND TO THE LESSONS WHICH ANOTHER CENTURY HAS TAUGHT. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE NEW YORK
SUPREME COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  THAT SECTION PROVIDES: 

"JUDGMENT FOR DEFICIENCY; LIMITATION.  IF A PERSON WHO IS LIABLE TO
THE PLAINTIFF FOR THE PAYMENT OF THE DEBT SECURED BY THE MORTGAGE IS
MADE A DEFENDANT IN THE ACTION, AND HAS APPEARED OR HAS BEEN PERSONALLY
SERVED WITH THE SUMMONS, THE FINAL JUDGMENT MAY AWARD PAYMENT BY HIM OF
THE WHOLE RESIDUE, OR SO MUCH THEREOF AS THE COURT MAY DETERMINE TO BE
JUST AND EQUITABLE, OF THE DEBT REMAINING UNSATISFIED, AFTER A SALE OF
THE MORTGAGED PROPERTY AND THE APPLICATION OF THE PROCEEDS, PURSUANT TO
THE DIRECTIONS CONTAINED IN SUCH JUDGMENT, THE AMOUNT THEREOF TO BE
DETERMINED BY THE COURT AS HEREIN PROVIDED.  SIMULTANEOUSLY WITH THE
MAKING OF A MOTION FOR AN ORDER CONFIRMING THE SALE PROVIDED SUCH
MOTION IS MADE WITHIN NINETY DAYS AFTER THE DATE OF THE CONSUMMATION OF
THE SALE BY THE DELIVERY OF THE PROPER DEED OF CONVEYANCE TO THE
PURCHASER IN ALL CASES WHERE THE SALE IS HELD AFTER THE DATE THIS
WAS HELD PRIOR TO THE DATE THIS SECTION AS HEREBY AMENDED TAKES EFFECT
AND SAID SALE HAS NOT HERETOFORE BEEN CONFIRMED, THEN WITHIN NINETY
DAYS FROM THE DATE THIS SECTION AS HEREBY AMENDED TAKES EFFECT OR
WITHIN NINETY DAYS AFTER THE DATE OF THE CONSUMMATION OF THE SALE BY
DELIVERY OF THE PROPER DEED OF CONVEYANCE TO THE PURCHASER, REGARDLESS
OF WHETHER THE SALE WAS HELD PRIOR OR SUBSEQUENT TO OR ON THE DATE THIS
SHALL BE OWING MAY MAKE A MOTION IN THE ACTION FOR LEAVE TO ENTER A
DEFICIENCY JUDGMENT UPON NOTICE TO THE PARTY AGAINST WHOM SUCH JUDGMENT
IS SOUGHT OR THE ATTORNEY WHO SHALL HAVE APPEARED FOR SUCH PARTY IN
SUCH ACTION.  SUCH NOTICE SHALL BE SERVED PERSONALLY OR IN SUCH OTHER
MANNER AS THE COURT MAY DIRECT.  UPON SUCH MOTION THE COURT, WHETHER OR
NOT THE RESPONDENT APPEARS, SHALL DETERMINE, UPON AFFIDAVIT OR
OTHERWISE AS IT SHALL DIRECT, THE FAIR AND REASONABLE MARKET VALUE OF
THE MORTGAGED PREMISES AS OF THE DATE SUCH PREMISES WERE BID IN AT
AUCTION OR SUCH NEAREST EARLIER DATE AS THERE SHALL HAVE BEEN ANY
MARKET VALUE THEREOF AND SHALL MAKE AN ORDER DIRECTING THE ENTRY OF A
DEFICIENCY JUDGMENT.  SUCH DEFICIENCY JUDGMENT SHALL BE FOR AN AMOUNT
EQUAL TO THE SUM OF THE AMOUNT OWING BY THE PARTY LIABLE AS DETERMINED
BY THE JUDGMENT WITH INTEREST, PLUS THE AMOUNT OWING ON ALL PRIOR LIENS
AND ENCUMBRANCES WITH INTEREST, PLUS COSTS AND DISBURSEMENTS OF THE
ACTION INCLUDING THE REFEREE'S FEE AND DISBURSEMENTS, LESS THE MARKET
VALUE AS DETERMINED BY THE COURT OR THE SALE PRICE OF THE PROPERTY
WHICHEVER SHALL BE THE HIGHER.  IF NO MOTION FOR A DEFICIENCY JUDGMENT
SHALL BE MADE AS HEREIN PRESCRIBED THE PROCEEDS OF THE SALE REGARDLESS
OF AMOUNT SHALL BE DEEMED TO BE IN FULL SATISFACTION OF THE MORTGAGE
DEBT AND NO RIGHT TO RECOVER ANY DEFICIENCY IN ANY ACTION OR PROCEEDING
SHALL EXIST.  ...  " 

FN2  AN AFFIDAVIT OF A REAL ESTATE BROKER SUBMITTED BY PETITIONER IN
SUPPORT OF HIS CROSS-MOTION STATED THAT IN HIS OPINION THE FAIR MARKET
VALUE OF THE PROPERTY WAS $11,000.  AN AFFIDAVIT OF AN APPRAISER
SUBMITTED BY RESPONDENT IN OPPOSITION STATED THAT IN HIS VIEW THE FAIR
MARKET VALUE OF THE PROPERTY WAS $6,500.  THE PROPERTY WAS ASSESSED BY
NEW YORK CITY FOR TAX PURPOSES AT $15,000. 

FN3  THE MORATORY DEFICIENCY JUDGMENT ACT DID NOT APPLY TO MORTGAGES
OR CONNECTED AGREEMENTS DATED ON OR AFTER JULY 1, 1932.  SEE 284 N.Y.
13, 16-17; 29 N.E.2D 449. 

FN4  WE ARE CONCERNED HERE SOLELY WITH THE APPLICATION OF THIS
STATUTE TO A SITUATION WHERE THE MORTGAGEE PURCHASES THE PROPERTY AT
FORECLOSURE SALE.  WE INTIMATE NO OPINION ON ITS CONSTITUTIONALITY AS
APPLIED TO THE CASE WHERE THE MORTGAGEE IS NOT THE PURCHASER. 

FN5  BUT SEE SURING STATE BANK V. GIESE, 210 WIS. 489; 246 N.W. 556;
WILSON V. FOUKE, 188 ARK. 811; 67 S.W.2D 1030; TEACHERS' RETIREMENT
FUND ASSN. V. PIRIE, 150 ORE.  435; 46 P.2D 105.    FN6  AS TO THE
BANKRUPTCY POWER SEE WRIGHT V. UNION CENTRAL LIFE INS. CO., 311 U.S.
273, AND CASES CITED. 
..END :







OLSEN V. NEBRASKA, 313 U.S. 236 


NO. 671.  ARGUED APRIL 8, 9, 1941.  - DECIDED APRIL 28, 1941.  - 138
NEB. 574 - 293 N.W. 393, REVERSED. 


1.  A NEBRASKA STATUTE LIMITING THE AMOUNT OF THE FEE WHICH MAY BE
CHARGED BY PRIVATE EMPLOYMENT AGENCIES, TO TEN PER CENT. OF THE FIRST
MONTH'S SALARY OR WAGES OF THE PERSON FOR WHOM EMPLOYMENT WAS OBTAINED,
HELD CONSISTENT WITH DUE PROCESS OF LAW.  RIBNIK V. MCBRIDE, 277 U.S.
350, OVERRULED.  P. 243. 

2.  THE WISDOM, NEED AND APPROPRIATENESS OF THIS LEGISLATION ARE FOR
THE STATE TO DETERMINE.  P. 246. 

OLSEN, SECRETARY OF LABOR OF NEBRASKA, V. NEBRASKA EX REL. WESTERN
REFERENCE & BOND ASSOCIATION, INC., ET AL. 

CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

CERTIORARI, 312 U.S. 673, TO REVIEW A JUDGMENT FOR A PEREMPTORY WRIT
OF MANDAMUS REQUIRING THE SECRETARY OF LABOR OF THE STATE OF NEBRASKA
TO ISSUE LICENSES FOR THE OPERATION OF PRIVATE EMPLOYMENT AGENCIES. 
THE ABOVE-NAMED ASSOCIATION WAS THE ORIGINAL RELATOR.  A NUMBER OF
OTHER EMPLOYMENT AGENCIES, WHICH SOUGHT AND OBTAINED THE SAME RELIEF BY
INTERVENTION, WERE ALSO RESPONDENTS IN THIS COURT.  MR. OLSEN WAS
SUBSTITUTED FOR HIS PREDECESSOR IN OFFICE, MR. KINNEY, POST, P. 541. 

THE STATUTE VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  RIBNIK V. MCBRIDE, 277 U.S. 350, 359. 

THE ACT IMPOSES A MAXIMUM LIMIT ON THE FEES TO BE CHARGED, AND
FORBIDS THE EXACTION OF ANY OTHER "COMPENSATION OR REWARD," REGARDLESS
OF THE AMOUNT OF SERVICE RENDERED, OR THE EXPENSE OF PLACING THE
EMPLOYEE.  MOREOVER, IF THE EMPLOYEE ARBITRARILY REJECTS THE POSITION
OFFERED, ANY FEE PAID BEYOND THE REGISTRATION FEE MUST BE RETURNED.  IF
THE EMPLOYEE REMAINS LESS THAN A WEEK IN THE JOB, WHETHER DUE TO HIS
OWN FAULT OR THE FAULT OF HIS EMPLOYER, THE AGENCY IS REQUIRED TO REPAY
ALL FEES IN EXCESS OF THE REGISTRATION FEE, EITHER TO THE EMPLOYEE OR
HIS EMPLOYER, AS THE CASE MAY BE. 

THE STATUTE UPON ITS FACE - AND PARTICULARLY AS APPLIED TO EXECUTIVE,
TECHNICAL AND PROFESSIONAL EMPLOYMENT - IS FAR MORE ARBITRARY AND
UNREASONABLE THAN THE STATUTE IN THE RIBNIK CASE. 

THE RIBNIK CASE HAS BEEN RECOGNIZED AS ESTABLISHED LAW IN MANY
SUBSEQUENT CASES IN THIS COURT AND HAS NEVER BEEN DISAPPROVED OR
OVERRULED.  WILLIAMS V. STANDARD OIL CO., 278 U.S. 235, 239; TAGG BROS.
V. UNITED STATES, 280 U.S. 420, 438-9; NEAR V. MINNESOTA, 283 U.S. 697,
707-8; NEBBIA V. NEW YORK, 291 U.S. 502, 536-7; OLD DEARBORN
DISTRIBUTING CO. V. SEAGRAM-DISTILLERS CORP., 299 U.S. 183, 192; UNITED
STATES V. ROCK ROYAL CO-OPERATIVE, 307 U.S. 533, 570. 

FREEDOM OF CONTRACT IS THE GENERAL RULE AND RESTRAINT THE EXCEPTION. 
LEGISLATIVE ABRIDGMENT OF THIS FREEDOM CAN BE JUSTIFIED ONLY BY
EXCEPTIONAL CIRCUMSTANCES.  CF., CHAS. WOLFF PACKING CO. V. INDUSTRIAL
COURT, 262 U.S. 522, 534; S.C., 267 U.S. 552, 566.  SEE, ALSO, LIGGETT
V. BALDRIDGE, 278 U.S. 105, 111; NEBBIA V. NEW YORK, 291 U.S. 502, 523;
OLD DEARBORN CO. V. SEAGRAM-DISTILLERS CORP., 299 U.S. 183, 192. 

SPECIAL CIRCUMSTANCES CREATING EXCEPTIONS MUST BE SHOWN IN ORDER TO
SUPPORT SUCH DRASTIC REGULATION AS PRICE-FIXING.  IN SOME CASES, THEY
MAY APPEAR FROM THE INHERENT NATURE OF THE SUBJECT MATTER REGULATED,
WHILE IN OTHER CASES THE BURDEN OF PROOF IS ON HIM WHO CHALLENGES THE
VALIDITY OF THE ACT.  SEE LIGGETT CO. V. BALDRIDGE, 278 U.S. 105. 
HERE, A PRESUMPTION ARISES FROM THE RIBNIK CASE THAT LEGISLATIVE PRICE
FIXING, AS APPLIED TO EMPLOYMENT EXCHANGES, IS ARBITRARY AND
UNREASONABLE; AND THE BURDEN OF OVERCOMING THAT PRESUMPTION RESTS UPON
THE PETITIONER. 

IF THE POWER TO FIX MAXIMUM WAGES IS ADDED TO THE POWER TO FIX
MINIMUM WAGES, THERE IS LITTLE LEFT OF THE PERSONAL LIBERTY TO MAKE
CONTRACTS, WHICH IS BOTH A RIGHT OF LIBERTY AND PROPERTY.  CAN IT BE
SAID THAT FIXING MAXIMUM FEES FOR SECURING POSITIONS FOR EXECUTIVE,
TECHNICAL AND PROFESSIONAL WORKERS IS ANY MORE SUBJECT TO LEGISLATIVE
CONTROL THAN ARE THE SALARIES OF SUCH CLASSES OF WORKERS?  THESE
OCCUPATIONS INVOLVE A CLASS OF PEOPLE WHO HAVE NOT BEEN THOUGHT TO BE
IN NEED OF SPECIAL PROTECTION FROM EXPLOITATION. 

IT WAS SAID IN NEAR V. MINNESOTA, 283 U.S. 697, 708, THAT "THE POWER
OF THE STATE STOPS SHORT OF INTERFERENCE WITH WHAT ARE DEEMED TO BE
CERTAIN INDISPENSABLE REQUIREMENTS OF THE LIBERTY ASSURED, NOTABLY WITH
RESPECT TO THE FIXING OF PRICES AND WAGES." 

IN TYSON & BROTHER V. BANTON, 273 U.S. 418, AND THE RIBNIK CASE THIS
COURT STRUCK DOWN ATTEMPTS AT LEGISLATIVE PRICE-FIXING FOR PERSONAL
SERVICES.  IN WILSON V. NEW, 243 U.S. 332, THE COURT DENIED SUCH POWER
EXCEPT TO MEET THE TEMPORARY EMERGENCY OF A THREATENED RAILROAD
STRIKE. 

IN A DIFFERENT CLASS ARE MINIMUM WAGE LAWS.  WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379; UNITED STATES V. DARBY, 312 U.S. 100. 

IN O'GORMAN & YOUNG V. HARTFORD FIRE INS. CO., 282 U.S. 251, THE
COURT LAID STRESS UPON THE FACT THAT THE INSURANCE BUSINESS IS SO FAR
AFFECTED WITH A PUBLIC INTEREST THAT THE STATE MAY REGULATE THE RATES. 
GERMAN ALLIANCE INS. CO. V. LEWIS, 233 U.S. 389.  THE COURT WAS DEALING
WITH AN ACTIVITY WHICH TRADITIONALLY WAS SUBJECTED TO FAR-REACHING
REGULATIONS OF VARIOUS KINDS, INCLUDING RATE-FIXING.  TAGG BROS &
MOORHEAD V. UNITED STATES, 280 U.S. 420; STAFFORD V. WALLACE, 258 U.S.
495.  THE COURT HELD IN THE TAGG BROS. CASE THAT THE STATUTE AND THE
ORDERS ISSUED BY THE SECRETARY OF AGRICULTURE, FIXING CHARGES BY MARKET
AGENCIES, WERE VALID, BUT EMPHASIZED THE FACT THAT THESE AGENCIES HAD A
MONOPOLY AND WERE ACCUSTOMED TO FIX PRICES BY AGREEMENT AMONG
THEMSELVES. 

THUS FAR ONLY HAS THIS COURT GONE IN FIXING MAXIMUM CHARGES FOR
PERSONAL SERVICES.  DIST'G TOWNSEND V. YEOMANS, 301 U.S. 441, AND MUNN
V. ILLINOIS, 94 U.S. 113. 

IN THE CASE OF EMPLOYMENT EXCHANGES, AND PARTICULARLY THOSE PROVIDING
EMPLOYMENT FOR EXECUTIVES, TECHNICIANS AND PROFESSIONAL MEN, SERVICES
RENDERED ARE NOT CAPABLE OF STANDARDIZATION WITHOUT ARBITRARINESS, AS
HAS ALREADY BEEN FOUND BY THIS COURT, AND AS WAS FOUND IN EFFECT BY THE
NEBRASKA SUPREME COURT IN THIS CASE. 

LEGISLATIVE LIMITATION ON MAXIMUM FEES FOR EMPLOYMENT AGENCIES IS
CERTAIN TO REACT UNFAVORABLY UPON THOSE MEMBERS OF THE COMMUNITY FOR
WHOM IT IS MOST DIFFICULT TO OBTAIN JOBS. 

THE ARGUMENT SHOWING THE IMPRACTICABILITY AND INJUSTICE OF SUCH
REGULATION IS ENTITLED TO SPECIAL CONSIDERATION AS RESPECTS AN INDUSTRY
WHICH IS SUBJECT TO SUBSIDIZED COMPETITION FROM FREE PUBLIC EMPLOYMENT
EXCHANGES IN ALMOST EVERY SECTION OF THE NATION; SO THAT THE EVIL OF
EXCESSIVE CHARGES, WHATEVER MAY HAVE BEEN ITS EXTENT IN THE PAST, NO
LONGER EXISTS.  NO ONE WISHES UNNECESSARILY TO DESTROY THE LIBERTY OF
PEOPLE TO SERVE AND BE SERVED ON TERMS AGREED UPON, OR TO REDUCE
UNNECESSARILY THE CIRCLE OF CONSTITUTIONAL LIBERTY. 

BECAUSE OF INCREASING COMPETITION OF THE PUBLIC EMPLOYMENT AGENCIES,
AS WELL AS THE INCREASING NUMBER OF CHARITABLE, LABOR UNION AND
EMPLOYER ASSOCIATION EMPLOYMENT AGENCIES, ANY TENDENCY OF THE PAST
TOWARD EXCESSIVE FEES BY PRIVATE EMPLOYMENT AGENCIES MUST HAVE COME TO
AN END.  THOSE PRIVATE AGENCIES WHICH HAVE NOT BEEN PUT OUT OF BUSINESS
BY COMPETITION, PUBLICLY SUBSIDIZED, CAN NO LONGER HOPE TO COLLECT
EXCESSIVE FEES.  THERE IS THEREFORE NO CONSTITUTIONAL BASE FOR
REGULATING THEIR CHARGES.  SEE THE DISSENTING OPINION OF MR. JUSTICE
STONE IN RIBNIK V. MCBRIDE, 277 U.S. 350, 360; LAWTON V. STEELE, 152
U.S. 133, 137. 

IN WOLFF CO. V. INDUSTRIAL COURT, 262 U.S. 522, 535-6, THE COURT
DEALS, IN DETAIL, WITH THE CLASSIFICATION OF INDUSTRIES WHICH MAY BE
SUBJECT TO PRICE REGULATION, AND POINTS TO THE FACT THAT THIS INCLUDES
A GROUP OF OCCUPATIONS WHICH MAY BE SUBJECT TO SUCH CHANGING
CIRCUMSTANCES AS TO RESULT IN THEIR BEING TRANSFERRED TO THE GROUP
WHICH IS AFFECTED WITH THE PUBLIC INTEREST. 

ACCORD:  TYSON & BRO. V. BANTON, 273 U.S. 418, 431; RIBNIK V.
MCBRIDE, 277 U.S. 350, 355; WILLIAMS V. STANDARD OIL CO., 278 U.S. 235,
239; NEW STATE ICE CO. V. LIEBMAN, 285 U.S. 262, 277; NEBBIA V. NEW
YORK, 291 U.S. 502, 536; OLD DEARBORN DISTRIBUTING CO. V. SEAGRAM
DISTILLERS CORP., 299 U.S. 183, 192. 

OTHER CASES INDICATE THAT THE LIMITS OF CONSTITUTIONAL POWER IN CASES
OF THIS CHARACTER MAY HINGE ON CHANGING CONDITIONS IN RESPECT TO THE
EVIL OR EMERGENCY JUSTIFYING SUCH A DRASTIC INTRUSION ON LIBERTY. 
WILSON V. NEW, 243 U.S. 332; BLOCK V. HIRSH, 256 U.S. 135; MARCUS BROWN
HOLDING CO. V. FELDMAN, 256 U.S. 170; PENNSYLVANIA COAL CO. V. MAHON,
260 U.S. 393. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN RELIANCE UPON RIBNIK V. MCBRIDE, 277 U.S. 350, THE SUPREME COURT
OF NEBRASKA HELD, ONE JUDGE DISSENTING, THAT A STATUTE OF THAT STATE
FIXING THE MAXIMUM COMPENSATION WHICH A PRIVATE EMPLOYMENT AGENCY MIGHT
COLLECT FROM AN APPLICANT FOR EMPLOYMENT  FN1  WAS UNCONSTITUTIONAL N2
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  138 NEB.
574, 293 N.W. 393.  THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH
WE GRANTED BECAUSE OF THE IMPORTANCE OF THE CONSTITUTIONAL QUESTION
WHICH WAS RAISED. 

THE ACTION IS FOR A PEREMPTORY WRIT OF MANDAMUS ORDERING PETITIONER,
SECRETARY OF LABOR OF NEBRASKA, TO ISSUE A LICENSE TO THE RELATOR  FN3
TO OPERATE A PRIVATE EMPLOYMENT AGENCY FOR THE YEAR COMMENCING MAY 1,
1940.  THE LICENSE WAS WITHHELD BECAUSE OF RELATOR'S REFUSAL TO LIMIT
ITS MAXIMUM COMPENSATION, AS PROVIDED BY THE STATUTE, TO TEN PER CENT
OF THE FIRST MONTH'S SALARY OR WAGES OF THE PERSON FOR WHOM EMPLOYMENT
WAS OBTAINED.  THE PETITION IN MANDAMUS CHALLENGED THE
CONSTITUTIONALITY OF THOSE PROVISIONS OF THE ACT.  FN4  THE ANSWER
SOUGHT TO SUSTAIN THEM BY ALLEGING THAT THE BUSINESS OF A PRIVATE
EMPLOYMENT AGENCY IS "VITALLY AFFECTED WITH A PUBLIC INTEREST" AND
SUBJECT TO SUCH REGULATION UNDER THE POLICE POWER OF THE STATE.  THE
RELATOR'S MOTION FOR JUDGMENT ON THE PLEADINGS WAS SUSTAINED AND IT WAS
ORDERED THAT A PEREMPTORY WRIT OF MANDAMUS SHOULD ISSUE. 

WE DISAGREE WITH THE SUPREME COURT OF NEBRASKA.  THE STATUTORY
PROVISIONS IN QUESTION DO NOT VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT. 

THE DRIFT AWAY FROM RIBNIK V. MCBRIDE, SUPRA, HAS BEEN SO GREAT THAT
IT CAN NO LONGER BE DEEMED A CONTROLLING AUTHORITY.  IT WAS DECIDED IN
1928.  IN THE FOLLOWING YEAR THIS COURT HELD THAT TENNESSEE HAD NO
POWER TO FIX PRICES AT WHICH GASOLINE MIGHT BE SOLD IN THE STATE. 
WILLIAMS V. STANDARD OIL CO., 278 U.S. 235.  SAVE FOR THAT DECISION AND
MOREHEAD V. TIPALDO, 298 U.S. 587, HOLDING UNCONSTITUTIONAL A NEW YORK
STATUTE AUTHORIZING THE FIXING OF WOMEN'S WAGES, THE SUBSEQUENT CASES
IN THIS COURT HAVE GIVEN INCREASINGLY WIDER SCOPE TO THE PRICE-FIXING
POWERS OF THE STATES AND OF CONGRESS.  FN5  TAGG BROS. V. UNITED
STATES, 280 U.S. 420, DECIDED IN 1930, UPHELD THE POWER OF THE
SECRETARY OF AGRICULTURE UNDER THE PACKERS AND STOCKYARDS ACT TO
DETERMINE THE JUST AND REASONABLE CHARGES OF PERSONS ENGAGED IN THE
BUSINESS OF BUYING AND SELLING IN INTERSTATE COMMERCE LIVESTOCK AT A
STOCKYARD ON A COMMISSION BASIS.  IN 1931 A NEW JERSEY STATUTE LIMITING
COMMISSIONS OF AGENTS OF FIRE INSURANCE COMPANIES WAS SUSTAINED BY
O'GORMAN & YOUNG V. HARTFORD FIRE INS. CO., 282 U.S. 251.  A NEW YORK
STATUTE AUTHORIZING THE FIXING OF MINIMUM AND MAXIMUM RETAIL PRICES FOR
MILK WAS UPHELD IN 1934.  NEBBIA V. NEW YORK, 291 U.S. 502.  AND SEE
HEGEMAN FARMS CORP. V. BALDWIN, 293 U.S. 163; BORDEN'S FARM PRODUCTS
CO. V. TEN EYCK, 297 U.S. 251.  CF. BALDWIN V. G.A.F. SEELIG, INC., 294
U.S. 511; MAYFLOWER FARMS V. TEN EYCK, 297 U.S. 266.  IN 1937 ADKINS V.
CHILDREN'S HOSPITAL, 261 U.S. 525, WAS OVERRULED AND A STATUTE OF
WASHINGTON WHICH AUTHORIZED THE FIXING OF MINIMUM WAGES FOR WOMEN AND
MINORS WAS SUSTAINED.  WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379. 
IN THE SAME YEAR, TOWNSEND V. YEOMANS, 301 U.S. 441, UPHELD A GEORGIA
STATUTE FIXING MAXIMUM WAREHOUSE CHARGES FOR THE HANDLING AND SELLING
OF LEAF TOBACCO.  CF. MULFORD V. SMITH, 307 U.S. 38; CURRIN V. WALLACE,
306 U.S. 1.  THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE TO
AUTHORIZE THE FIXING OF MINIMUM PRICES FOR MILK WAS UPHELD IN UNITED
STATES V. ROCK ROYAL CO-OPERATIVE, 307 U.S. 533, DECIDED IN 1939.  THE
NEXT YEAR THE PRICE-FIXING PROVISIONS OF THE BITUMINOUS COAL ACT OF
1937 WERE SUSTAINED.  SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381.  AND
AT THIS TERM WE UPHELD THE MINIMUM WAGE AND MAXIMUM HOUR PROVISIONS OF
THE FAIR LABOR STANDARDS ACT OF 1938.  UNITED STATES V. DARBY, 312 U.S.
100.  THESE CASES REPRESENT MORE THAN SCATTERED EXAMPLES OF
CONSTITUTIONALLY PERMISSIBLE PRICE-FIXING SCHEMES.  THEY REPRESENT IN
LARGE MEASURE A BASIC DEPARTURE FROM THE PHILOSOPHY AND APPROACH OF THE
MAJORITY IN THE RIBNIK CASE.  THE STANDARD THERE EMPLOYED, FOLLOWING
THAT USED IN TYSON & BROTHER V. BANTON, 273 U.S. 418, 430 ET SEQ., WAS
THAT THE CONSTITUTIONAL VALIDITY OF PRICE-FIXING LEGISLATION, AT LEAST
IN ABSENCE OF A SO-CALLED EMERGENCY,  FN6  WAS DEPENDENT ON WHETHER OR
NOT THE BUSINESS IN QUESTION WAS "AFFECTED WITH A PUBLIC INTEREST." 
CF. BRAZEE V. MICHIGAN, 241 U.S. 340.  IT WAS SAID TO BE SO AFFECTED IF
IT HAD BEEN "DEVOTED TO THE PUBLIC USE" AND IF "AN INTEREST IN EFFECT"
HAD BEEN GRANTED "TO THE PUBLIC IN THAT USE."  RIBNIK V. MCBRIDE,
SUPRA, P. 355.  THAT TEST, LABELLED BY MR. JUSTICE HOLMES IN HIS
DISSENT IN THE TYSON CASE (273 U.S. AT P. 446) AS "LITTLE MORE THAN A
FICTION," WAS DISCARDED IN NEBBIA V. NEW YORK, SUPRA, PP. 531-539.  IT
WAS THERE STATED THAT SUCH CRITERIA "ARE NOT SUSCEPTIBLE OF DEFINITION
AND FORM AN UNSATISFACTORY TEST OF THE CONSTITUTIONALITY OF LEGISLATION
DIRECTED AT BUSINESS PRACTICES OR PRICES," AND THAT THE PHRASE
"AFFECTED WITH A PUBLIC INTEREST" CAN MEAN "NO MORE THAN THAT AN
INDUSTRY, FOR ADEQUATE REASON, IS SUBJECT TO CONTROL FOR THE PUBLIC
GOOD."  ID., P. 536.  AND SEE THE DISSENTING OPINION IN RIBNIK V.
MCBRIDE, SUPRA, AT P. 359.    THE RIBNIK CASE, FREED FROM THE TEST
WHICH IT EMPLOYED, CAN NO LONGER SURVIVE.  BUT RESPONDENTS MAINTAIN
THAT THE STATUTE HERE IN QUESTION IS INVALID FOR OTHER REASONS.  THEY
INSIST THAT SPECIAL CIRCUMSTANCES MUST BE SHOWN TO SUPPORT THE VALIDITY
OF SUCH DRASTIC LEGISLATION AS PRICE-FIXING, THAT THE EXECUTIVE,
TECHNICAL AND PROFESSIONAL WORKERS WHICH RESPONDENTS SERVE HAVE NOT
BEEN SHOWN TO BE IN NEED OF SPECIAL PROTECTION FROM EXPLOITATION, THAT
LEGISLATIVE LIMITATION OF MAXIMUM FEES FOR EMPLOYMENT AGENCIES IS
CERTAIN TO REACT UNFAVORABLY UPON THOSE MEMBERS OF THE COMMUNITY FOR
WHOM IT IS MOST DIFFICULT TO OBTAIN JOBS, THAT THE INCREASING
COMPETITION OF PUBLIC EMPLOYMENT AGENCIES AND OF CHARITABLE, LABOR
UNION AND EMPLOYER ASSOCIATION EMPLOYMENT AGENCIES HAVE CURBED
EXCESSIVE FEES BY PRIVATE AGENCIES, AND THAT THERE IS NOTHING IN THIS
RECORD TO OVERCOME THE PRESUMPTION AS TO THE RESULT OF THE OPERATION OF
SUCH COMPETITIVE, ECONOMIC FORCES.  AND IN THE LATTER CONNECTION
RESPONDENTS URGE THAT, SINCE NO CIRCUMSTANCES ARE SHOWN WHICH CURB
COMPETITION BETWEEN THE PRIVATE AGENCIES AND THE OTHER TYPES OF
AGENCIES, THERE ARE NO CONDITIONS WHICH THE LEGISLATURE MIGHT
REASONABLY BELIEVE WOULD REDOUND TO THE PUBLIC INJURY UNLESS CORRECTED
BY SUCH LEGISLATION. 

WE ARE NOT CONCERNED, HOWEVER, WITH THE WISDOM, NEED, OR
APPROPRIATENESS OF THE LEGISLATION.  DIFFERENCES OF OPINION ON THAT
SCORE SUGGEST A CHOICE WHICH "SHOULD BE LEFT WHERE  ...  IT WAS LEFT BY
THE CONSTITUTION - TO THE STATES AND TO CONGRESS."  RIBNIK V. MCBRIDE,
SUPRA, AT P. 375, DISSENTING OPINION.  THERE IS NO NECESSITY FOR THE
STATE TO DEMONSTRATE BEFORE US THAT EVILS PERSIST DESPITE THE
COMPETITION WHICH ATTENDS THE BARGAINING IN THIS FIELD.  IN FINAL
ANALYSIS, THE ONLY CONSTITUTIONAL PROHIBITIONS OR RESTRAINTS WHICH
RESPONDENTS HAVE SUGGESTED FOR THE INVALIDATION OF THIS LEGISLATION ARE
THOSE NOTIONS OF PUBLIC POLICY EMBEDDED IN EARLIER DECISIONS OF THIS
COURT BUT WHICH, AS MR. JUSTICE HOLMES LONG ADMONISHED, SHOULD NOT BE
READ INTO THE CONSTITUTION.  TYSON & BROTHER V. BANTON, SUPRA, AT P.
446; ADKINS V. CHILDREN'S HOSPITAL, SUPRA, AT P. 570.  SINCE THEY DO
NOT FIND EXPRESSION IN THE CONSTITUTION, WE CANNOT GIVE THEM CONTINUING
VITALITY AS STANDARDS BY WHICH THE CONSTITUTIONALITY OF THE ECONOMIC
AND SOCIAL PROGRAMS OF THE STATES IS TO BE DETERMINED. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE SUPREME
COURT OF NEBRASKA FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  NEB. COMP. STAT. 1929, SEC. 48-508: 

"PRIVATE EMPLOYMENT AGENCIES, REGISTRATION FEE.  A REGISTRATION FEE
NOT TO EXCEED TWO DOLLARS MAY BE CHARGED BY SUCH LICENSED AGENCY WHEN
SUCH AGENCY SHALL BE AT ACTUAL EXPENSE IN ADVERTISING SUCH INDIVIDUAL
APPLICANT, OR IN LOOKING UP THE REFERENCE OF SUCH APPLICANT.  IN ALL
SUCH CASES A COMPLETE RECORD OF SUCH REFERENCES SHALL BE KEPT ON FILE
WHICH RECORD SHALL, DURING ALL BUSINESS HOURS, BE OPEN FOR THE
INSPECTION OF THE SECRETARY OF LABOR, THE CHIEF DEPUTY SECRETARY OF
LABOR, OR ANY OTHER INSPECTOR APPOINTED BY THE SECRETARY OF LABOR TO
MAKE SUCH INSPECTION, AND UPON DEMAND SHALL BE SUBJECT TO THE
INSPECTION AND EXAMINATION BY THE APPLICANT.  FOR SUCH REGISTRATION FEE
A RECEIPT SHALL BE GIVEN TO SAID APPLICANT FOR HELP OR EMPLOYMENT,
GIVING NAME OF SUCH APPLICANT, DATE OF PAYMENT AND CHARACTER OF
POSITION OR HELP APPLIED FOR.  SUCH REGISTRATION FEE SHALL BE RETURNED
TO SAID APPLICANTS ON DEMAND, AFTER THIRTY DAYS AND WITHIN SIXTY DAYS
FROM DATE OF RECEIPT, LESS THE AMOUNT THAT HAS BEEN ACTUALLY EXPENDED
BY SAID LICENSED AGENCY FOR SAID APPLICANT, AND AN ITEMIZED ACCOUNT OF
SUCH EXPENDITURES SHALL BE PRESENTED TO SAID APPLICANT ON REQUEST AT
THE TIME OF RETURNING THE UNUSED PORTION OF SUCH REGISTRATION FEE,
PROVIDED NO POSITION HAS BEEN FURNISHED BY SAID LICENSED AGENCY TO AND
ACCEPTED BY SAID APPLICANT.  NO LICENSED PERSON OR PERSONS SHALL, AS A
CONDITION TO REGISTERING OR OBTAINING EMPLOYMENT FOR SUCH APPLICANT,
REQUIRE SUCH APPLICANT TO SUBSCRIBE TO ANY PUBLICATION OR EXACT OTHER
FEES, COMPENSATION OR REWARD, OTHER THAN THE REGISTRATION FEE,
AFORESAID, AND A FURTHER FEE, THE AMOUNT OF WHICH SHALL BE AGREED UPON
BETWEEN SUCH APPLICANT AND SUCH LICENSED PERSON, TO BE PAYABLE AT SUCH
TIME AS MAY BE AGREED UPON IN WRITING, 'THE AMOUNT OF WHICH, TOGETHER
WITH SAID REGISTRATION FEE OF $2.00 ADDED THERETO SHALL IN NO CASE
EXCEED 10 PER CENT OF ALL MONEYS PAID TO OR TO BE PAID OR EARNED BY
SAID APPLICANT, FOR THE FIRST MONTH'S SERVICE GROWING OUT OF SAID
EMPLOYMENT FURNISHED BY SAID EMPLOYER.  PROVIDED, HOWEVER, THAT IF
THROUGH NO FAULT OF SAID APPLICANT OR EMPLOYEE, HE FAILS TO REMAIN IN
SERVICE WITH SAID EMPLOYER AND OTHER POSITIONS OR PLACES OF EMPLOYMENT
ARE FURNISHED TO SAID APPLICANT BY SAID LICENSED AGENCY, THEN SAID
LICENSED AGENCY SHALL NOT ACCEPT, COLLECT OR CHARGE MORE THAN ONE FEE
EVERY THREE MONTHS,' BUT THE FURTHER FEE AFORESAID SHALL NOT BE
RECEIVED BY SUCH LICENSED PERSON BEFORE THE APPLICANT HAS BEEN TENDERED
A POSITION BY SAID LICENSED PERSON.  IN THE EVENT THAT THE POSITION, SO
TENDERED IS NOT ACCEPTED BY OR GIVEN SUCH APPLICANT, SAID LICENSED
PERSON SHALL REFUND ALL FEES REQUESTED BY SAID APPLICANT, OTHER THAN
THE REGISTRATION FEES AFORESAID WITHIN THREE DAYS AFTER DEMAND IS MADE
THEREFOR.  NO SUCH LICENSED PERSON SHALL SEND OUT ANY APPLICANT FOR
EMPLOYMENT WITHOUT HAVING OBTAINED A BONA FIDE ORDER THEREFOR, AND IF
IT SHALL APPEAR THAT NO EMPLOYMENT OF THE KIND APPLIED FOR EXISTED AT
THE PLACE WHERE SAID APPLICANT WAS DIRECTED, SAID LICENSED PERSON SHALL
REFUND TO SUCH APPLICANT WITHIN FIVE DAYS AFTER DEMAND, ANY SUM PAID BY
SUCH APPLICANT FOR TRANSPORTATION IN GOING TO AND RETURNING FROM SAID
PLACE AND ALL FEES PAID BY SAID APPLICANT.  IN ADDITION TO THE RECEIPT
PROVIDED TO BE GIVEN FOR REGISTRATION FEE IT SHALL BE THE DUTY OF SUCH
LICENSED PERSON TO GIVE, TO EVERY APPLICANT FOR EMPLOYMENT FROM WHOM
OTHER FEE OR FEES SHALL BE RECEIVED, AN ADDITIONAL RECEIPT, IN WHICH
SHALL BE STATED THE NAME OF SUCH APPLICANT, THE DATE AND AMOUNT OF SUCH
OTHER FEES; AND TO EVERY APPLICANT FOR HELP FROM WHOM OTHER FEE OR FEES
SHALL BE RECEIVED, AN ADDITIONAL RECEIPT, STATING THE NAME AND ADDRESS
OF SAID APPLICANT, THE DATE AND AMOUNT OF SUCH OTHER FEE OR FEES, AND
THE KIND OF HELP TO BE PROVIDED.  ALL RECEIPTS SHALL HAVE PRINTED ON
THE BACK THEREOF, IN THE ENGLISH LANGUAGE, THE NAME AND ADDRESS OF THE
STATE SECRETARY OF LABOR AND THE CHIEF DEPUTY SECRETARY OF LABOR. 
EVERY SUCH LICENSED PERSON SHALL GIVE TO EVERY APPLICANT FOR
EMPLOYMENT, A CARD OR PRINTED PAPER CONTAINING THE NAME OF THE
APPLICANT, THE NAME AND ADDRESS OF SUCH EMPLOYMENT AGENCY, AND THE
WRITTEN NAME AND ADDRESS OF THE PERSON TO WHOM THE APPLICANT IS SENT
FOR EMPLOYMENT.  IF AN EMPLOYEE FURNISHED FAILS TO REMAIN ONE WEEK IN A
SITUATION, THROUGH NO FAULT OF THE EMPLOYER, THEN ALL FEES PAID OR
PLEDGED, IN EXCESS OF THE REGISTRATION FEE AFORESAID, SHALL BE REFUNDED
TO THE EMPLOYER UPON DEMAND.  IF THE EMPLOYMENT FURNISHED THE APPLICANT
DOES NOT CONTINUE MORE THAN ONE WEEK, THROUGH NO FAULT OF THE EMPLOYEE,
THEN ALL FEES PAID OR PLEDGED, IN EXCESS OF THE REGISTRATION FEE
AFORESAID, SHALL BE REFUNDED TO THE EMPLOYEE UPON DEMAND." 

FN2  THE COURT UPHELD THOSE PROVISIONS OF THE STATUTE UNDER SEC. 3,
ART. I OF THE NEBRASKA CONSTITUTION WHICH PROVIDES THAT "NO PERSON
SHALL BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF
LAW."  SEE ART. XV, SEC. 9. 

FN3  THE PETITION IN MANDAMUS WAS FILED BY RESPONDENT WESTERN
REFERENCE & BOND ASSN., INC. THE OTHER RESPONDENTS ARE MILLS TEACHERS
AGENCY, THOMAS EMPLOYMENT SERVICE, CO-OPERATIVE REFERENCE CO., MARTI
REFERENCE CO., WATTS REFERENCE CO., CORNHUSKER TEACHERS BUREAU, GRACE
BOOMER, AND DAVIS SCHOOL SERVICE, WHO INTERVENED IN THE ACTION AND
CHALLENGED THE CONSTITUTIONALITY OF THE ACT.  THEIR PETITION OF
INTERVENTION STATED THAT THEY, AS WELL AS THE RELATOR, CONFINE THEIR
BUSINESS "TO SOLICITING AND SECURING POSITIONS FOR CLERICAL, EXECUTIVE,
TECHNICAL AND PROFESSIONAL WORKERS, AND DO NOT ENGAGE IN THE BUSINESS
OF SECURING PLACEMENTS FOR COMMON LABORERS, DOMESTIC SERVANTS OR OTHER
CLASSES OF UNSKILLED WORKERS."  THAT SEEMS TO BE CONCEDED. 

FN4  BY STIPULATION FILED IN THE STATE COURT IT WAS AGREED THAT THE
"SOLE AND ONLY ISSUE FOR DETERMINATION" WAS THE CONSTITUTIONALITY OF
THE ACT "IN SO FAR AS THE SAME FIXES OR LIMITS THE FEES OR COMPENSATION
OF PRIVATE EMPLOYMENT AGENCIES." 

FN5  BUT SEE NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262; OLD
DEARBORN DISTRIBUTING CO. V. SEAGRAM-DISTILLERS CORP., 299 U.S. 183,
192; CARTER V. CARTER COAL CO., 298 U.S. 238, 316. 

FN6  CF. HIGHLAND V. RUSSELL CAR & SNOW PLOW CO., 279 U.S. 253. 
..END :





















HELVERING V. FLACCUS LEATHER CO., 313 U.S. 247 


NO. 627.  ARGUED APRIL 3, 1941.  - DECIDED APRIL 28, 1941.  - 114 F.2D
783, REVERSED. 


A SUM RECEIVED BY A TAXPAYER AS PROCEEDS OF INSURANCE ON BUILDINGS AND
EQUIPMENT DESTROYED BY FIRE (NO PART OF THE SUM SO RECEIVED HAVING BEEN
EXPENDED TO REPLACE THE DESTROYED PROPERTY, WHICH PRIOR TO 1935 HAD
BEEN COMPLETELY DEPRECIATED FOR INCOME TAX PURPOSES), HELD NOT A GAIN
FROM THE "SALE OR EXCHANGE" OF CAPITAL ASSETS WITHIN THE MEANING OF
SEC. 117(D) OF THE REVENUE ACT OF 1934.  P. 249. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. WILLIAM FLACCUS OAK
LEATHER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 312 U.S. 671, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS WHICH SUSTAINED THE COMMISSIONER'S DETERMINATION
OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN SEPTEMBER, 1935, RESPONDENT'S PLANT WAS DESTROYED BY FIRE.  LATER
THAT YEAR IT RECEIVED $73,132.50 FROM AN INSURANCE COMPANY AS
COMPENSATION FOR THE LOSS OF BUILDINGS, MACHINERY, AND EQUIPMENT.  THE
BUILDINGS, MACHINERY, AND EQUIPMENT HAD BEEN FULLY DEPRECIATED FOR
INCOME TAX PURPOSES PRIOR TO 1935, AND NO PART OF THE INSURANCE
PROCEEDS WAS USED TO ACQUIRE OTHER PROPERTY SIMILAR OR RELATED IN
SERVICE OR USE TO THE PROPERTY DESTROYED, OR TO ACQUIRE CONTROL OF A
CORPORATION OWNING SUCH PROPERTY, OR TO ESTABLISH A FUND TO REPLACE THE
PROPERTY DESTROYED. 

IN ITS RETURN FOR 1935, RESPONDENT REPORTED THE INSURANCE PROCEEDS AS
CAPITAL GAIN AND ADDED TO THAT AMOUNT A GAIN, NOT IN ISSUE HERE, OF
$862.50 FROM SALES OF SECURITIES.  DURING THAT SAME YEAR, RESPONDENT
HAD CAPITAL LOSSES, ALSO NOT IN DISPUTE, OF $76,767.62 WHICH IT USED TO
OFFSET COMPLETELY THE TOTAL REPORTED CAPITAL GAINS OF $73,995.  THIS
LEFT AN EXCESS OF CAPITAL LOSSES OVER CAPITAL GAINS OF $2,772.62, AND
RESPONDENT DEDUCTED $2,000 OF THAT AMOUNT FROM ORDINARY INCOME. 

THE COMMISSIONER HELD THAT THE INSURANCE PROCEEDS WERE ORDINARY
INCOME RATHER THAN CAPITAL GAIN.  ACCORDINGLY, HE DECREASED
RESPONDENT'S CAPITAL GAIN AND INCREASED ITS ORDINARY INCOME BY
$73,132.50, AND ALLOWED RESPONDENT CAPITAL LOSSES OF ONLY $2,862.50, AN
AMOUNT EQUAL TO THE GAIN FROM SECURITY SALES PLUS $2,000.  THE BOARD OF
TAX APPEALS AFFIRMED IN A MEMORANDUM OPINION ON THE AUTHORITY OF ESTATE
OF HERDER, 36 B.T.A. 934.  THE CIRCUIT COURT OF APPEALS REVERSED.  114
F.2D 783.  WE GRANTED CERTIORARI, 312 U.S. 671, BECAUSE THE DECISION
BELOW WAS IN CONFLICT WITH HERDER V. HELVERING, 70 APP. D.C. 287; 106
F.2D 153. 

IT IS CONCEDED THAT RESPONDENT'S LOSSES RESULTED FROM SALES OR
EXCHANGES OF CAPITAL ASSETS.  IT IS ALSO CONCEDED THAT THE ENTIRE
AMOUNT RECEIVED FROM THE INSURANCE COMPANY MUST BE INCLUDED IN
RESPONDENT'S INCOME SINCE THE PROPERTY HAD BEEN FULLY DEPRECIATED FOR
INCOME TAX PURPOSES PRIOR TO 1935.  RESPONDENT CONTENDS, HOWEVER, THAT
THAT AMOUNT MAY BE REPORTED AS CAPITAL GAIN, IN ORDER THAT CAPITAL
LOSSES MAY ABSORB IT, RATHER THAN AS AN ITEM OF ORDINARY GROSS INCOME. 

PART:  "LOSSES FROM SALES OR EXCHANGES OF CAPITAL ASSETS SHALL BE
ALLOWED ONLY TO THE EXTENT OF $2,000 PLUS THE GAINS FROM SUCH SALES OR
EXCHANGES."  THUS, THE SINGLE QUESTION IS WHETHER THE AMOUNT RESPONDENT
RECEIVED FROM THE INSURANCE COMPANY DERIVED FROM THE "SALE OR EXCHANGE"
OF A CAPITAL ASSET. 

GENERALLY SPEAKING, THE LANGUAGE IN THE REVENUE ACT, JUST AS IN ANY
STATUTE, IS TO BE GIVEN ITS ORDINARY MEANING, AND THE WORDS "SALE" AND
"EXCHANGE" ARE NOT TO BE READ ANY DIFFERENTLY.  COMPARE HELVERING V.
HAMMEL, 311 U.S. 504; FAIRBANKS V. UNITED STATES, 306 U.S. 436; BURNET
V. HARMEL, 287 U.S. 103.  NEITHER TERM IS APPROPRIATE TO CHARACTERIZE
THE DEMOLITION OF PROPERTY AND SUBSEQUENT COMPENSATION FOR ITS LOSS BY
AN INSURANCE COMPANY.  PLAINLY THAT PAIR OF EVENTS WAS NOT A SALE.  NOR
CAN THEY BE REGARDED AS AN EXCHANGE, FOR "EXCHANGE," AS USED IN SEC.
117(D), IMPLIES RECIPROCAL TRANSFERS OF CAPITAL ASSETS, NOT A SINGLE
TRANSFER TO COMPENSATE FOR THE DESTRUCTION OF THE TRANSFEREE'S ASSET. 

THE FACT THAT SEC. 112(F) CHARACTERIZES DESTRUCTION OF PROPERTY AND
INDEMNIFICATION FOR ITS LOSS AS AN INVOLUNTARY CONVERSION DOES NOT
ESTABLISH THAT THE TWO EVENTS CONSTITUTED A SALE OR EXCHANGE.  THAT
WHOLE OR IN PART, THEFT OR SEIZURE, OR AN EXERCISE OF THE POWER OF
REQUISITION OR CONDEMNATION, OR THE THREAT OR IMMINENCE THEREOF) IS
COMPULSORILY OR INVOLUNTARILY CONVERTED INTO PROPERTY SIMILAR OR
RELATED IN SERVICE OR USE TO THE PROPERTY SO CONVERTED, OR INTO MONEY
WHICH IS FORTHWITH IN GOOD FAITH, UNDER REGULATIONS PRESCRIBED BY THE
COMMISSIONER WITH THE APPROVAL OF THE SECRETARY, EXPENDED IN THE
ACQUISITION OF OTHER PROPERTY SIMILAR OR RELATED IN SERVICE OR USE TO
THE PROPERTY SO CONVERTED, OR IN THE ACQUISITION OF CONTROL OF A
CORPORATION OWNING SUCH OTHER PROPERTY, OR IN THE ESTABLISHMENT OF A
REPLACEMENT FUND, NO GAIN OR LOSS SHALL BE RECOGNIZED.  IF ANY PART OF
THE MONEY IS NOT SO EXPENDED, THE GAIN, IF ANY, SHALL BE RECOGNIZED,
BUT IN AN AMOUNT NOT IN EXCESS OF THE MONEY WHICH IS NOT SO EXPENDED." 

WE CAN FIND NOTHING IN THIS LANGUAGE OR IN OTHER SECTIONS OF THE ACT
WHICH INDICATES, EITHER EXPRESSLY OR BY IMPLICATION, THAT CONGRESS
INTENDED TO CLASSIFY AS "SALES OR EXCHANGES" THE INVOLUNTARY
CONVERSIONS ENUMERATED IN SEC. 112(F).  IT IS TRUE THAT SEC. 111(C)
SAYS THAT "IN THE CASE OF A SALE OR EXCHANGE, THE EXTENT TO WHICH THE
GAIN OR LOSS  ...  SHALL BE RECOGNIZED  ... SHALL BE DETERMINED UNDER
THE PROVISIONS OF SECTION 112."  IT IS ALSO TRUE THAT SEC. 112(F)
FOLLOWS SEC. 112(A) WHICH PROVIDES THAT "UPON THE SALE OR EXCHANGE OF
PROPERTY THE ENTIRE AMOUNT OF THE GAIN OR LOSS  ...  SHALL BE
RECOGNIZED, EXCEPT AS HEREINAFTER PROVIDED IN THIS SECTION." 

THE INFERENCE, DRAWN FROM THE JUXTAPOSITION AND CROSS REFERENCING OF
THESE THREE SECTIONS, THAT THE INVOLUNTARY CONVERSION OF RESPONDENT'S
PROPERTY IS THUS IMPLICITLY CHARACTERIZED AS A SALE OR EXCHANGE IGNORES
THE FACT THAT IN THE SAME ACT CONGRESS HAS CHOSEN A PARTICULAR METHOD
FOR CLASSIFYING AS SALES OR EXCHANGES TRANSACTIONS WHICH WOULD NOT
ORDINARILY BE DESCRIBED BY ONE OF THOSE TERMS.  THUS SEC. 115(C)
PROVIDES:  "AMOUNTS DISTRIBUTED IN COMPLETE LIQUIDATION OF A
CORPORATION SHALL BE TREATED AS IN FULL PAYMENT IN EXCHANGE FOR THE
STOCK, AND AMOUNTS DISTRIBUTED IN PARTIAL LIQUIDATION OF A CORPORATION
SHALL BE TREATED AS IN PART OR FULL PAYMENT IN EXCHANGE FOR THE
STOCK." 

LOSSES FROM SHORT SALES OF PROPERTY SHALL BE CONSIDERED AS GAINS OR
LOSSES FROM SALES OR EXCHANGES OF CAPITAL ASSETS; AND GAINS OR LOSSES
ATTRIBUTABLE TO THE FAILURE TO EXERCISE PRIVILEGES OR OPTIONS TO BUY OR
SELL PROPERTY SHALL BE CONSIDERED AS GAINS OR LOSSES FROM SALES OR
EXCHANGES OF CAPITAL ASSETS HELD FOR ONE YEAR OR LESS."  SEE H. REP.
NO. 704, 73D CONG., 2D SESS., P. 31; H. REP. NO. 1385, 73D CONG., 2D
SESS., P. 23.  SECTION 117(F) PROVIDES:  "FOR THE PURPOSES OF THIS
TITLE, AMOUNTS RECEIVED BY THE HOLDER UPON THE RETIREMENT OF BONDS,
DEBENTURES, NOTES, OR CERTIFICATES OR OTHER EVIDENCES OF INDEBTEDNESS
ISSUED BY ANY CORPORATION  ...  WITH INTEREST COUPONS OR IN REGISTERED
FORM, SHALL BE CONSIDERED AS AMOUNTS RECEIVED IN EXCHANGE THEREFOR." 
SEE MCCLAIN V. COMMISSIONER, 311 U.S. 527; FAIRBANKS V. UNITED STATES,
SUPRA; H. REP. NO. 704, 73D CONG., 2D SESS., P. 31. 

THESE SECTIONS DEMONSTRATE THAT CONGRESS HAS EXPRESSLY SPECIFIED THE
AMBIGUOUS TRANSACTIONS WHICH ARE TO BE REGARDED AS SALES OR EXCHANGES
FOR INCOME TAX PURPOSES.  THEY ARE CONVINCING EVIDENCE THAT THE
INVOLUNTARY CONVERSION OF RESPONDENT'S PROPERTY, WHICH BEARS FAR LESS
RESEMBLANCE TO A SALE OR EXCHANGE THAN THE TRANSACTIONS EMBRACED IN
SECS. 115(C), 117(E), AND 117(F), IS NOT TO BE PLACED IN ONE OR THE
OTHER OF THOSE CATEGORIES BY IMPLICATION.  THE PROMPT WITHDRAWAL OF
ARTICLE 113(A)(9)(1) OF TREASURY REGULATIONS NO. 86(SEE T.D. 4698, XV-2
CUM. BULL.  159) INDICATES THAT THE ADMINISTRATORS CHARGED WITH THE
ENFORCEMENT OF SEC. 112(F) REACHED A SIMILAR CONCLUSION.  COMPARE
BURNET V. CHICAGO PORTRAIT CO., 285 U.S. 1, 16. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED. 
..END :















NYE V. UNITED STATES, 313 U.S. 33 


NO. 558.  ARGUED MARCH 12, 1941.  - DECIDED APRIL 14, 1941.  - 113 F.2D
1006, REVERSED. 


1.  SEEKING TO TERMINATE A SUIT FOR WRONGFUL DEATH WHICH AN
ADMINISTRATOR HAD BROUGHT IN A FEDERAL DISTRICT COURT, PETITIONERS
(STRANGERS TO THE SUIT) INDUCED THE ADMINISTRATOR, BY UNDUE INFLUENCE,
TO FILE A FINAL ACCOUNT AND OBTAIN HIS DISCHARGE AS ADMINISTRATOR, AND
TO SEND LETTERS TO HIS ATTORNEY AND THE DISTRICT JUDGE ASKING DISMISSAL
OF THE SUIT.  THE MISBEHAVIOR OCCURRED MORE THAN 100 MILES FROM THE
DISTRICT COURT.  PETITIONERS WERE ADJUDGED GUILTY OF CONTEMPT BY THE
DISTRICT JUDGE; ONE WAS ORDERED TO PAY THE COSTS OF THE CONTEMPT
PROCEEDING, INCLUDING A SUM TO THE ADMINISTRATOR'S ATTORNEY; AND ON
BOTH, FINES WERE IMPOSED.  A NOTICE OF APPEAL WAS FILED.  HELD: 

(1)  THE CASE WAS NOT ONE OF CIVIL BUT OF CRIMINAL CONTEMPT.  P. 42. 

(A)  A CONTEMPT IS CONSIDERED CIVIL "WHEN THE PUNISHMENT IS WHOLLY
REMEDIAL, SERVES ONLY THE PURPOSES OF THE COMPLAINANT, AND IS NOT
INTENDED AS A DETERRENT TO OFFENSES AGAINST THE PUBLIC."  P. 42. 

(B)  THAT THE CONTEMPT PROCEEDING WAS ENTITLED IN THE ADMINISTRATOR'S
SUIT, AND THAT THE UNITED STATES WAS NOT A PARTY UNTIL THE APPEAL, ARE
NOT CONCLUSIVE AS TO THE NATURE OF THE CONTEMPT.  P. 42. 

(C)  NOR IS THE FACT THAT ONE OF THE PETITIONERS WAS ORDERED TO PAY
THE COSTS OF THE PROCEEDING, INCLUDING A SUM TO THE ADMINISTRATOR'S
ATTORNEY, DECISIVE.  P. 42. 

(D)  THE PUNITIVE CHARACTER OF THE JUDGMENT OF CONTEMPT WAS
DOMINANT.  P. 43. 

(2)  THE APPEAL IS NOT GOVERNED BY THE CRIMINAL APPEALS RULES.  P.
43. 

(A)  IN THIS CASE THERE WAS NO "PLEA OF GUILTY," NO "VERDICT OF GUILT
BY A JURY," AND NO "FINDING OF GUILT BY THE TRIAL COURT WHERE A JURY IS
WAIVED."  THE QUOTED QUALIFYING LANGUAGE OF THE RULES DOES NOT
DESIGNATE MERELY THE STAGE OF THE PROCEEDINGS IN CRIMINAL CASES WHEN
THE RULES BECOME APPLICABLE, BUT DESCRIBES THE KINDS OF CASES TO WHICH
THEY ARE TO BE APPLIED.  P. 43. 

(B)  IN THE LIGHT OF THE HISTORY OF THE ACT AUTHORIZING THE RULES,
AND THE AMENDATORY ACT, THE CATEGORIES EMBRACED IN THE RULES MAY NOT BE
EXPANDED BY INTERPRETATION TO INCLUDE THE PRESENT CASE.  P. 44. 

(3)  THE APPEAL IS GOVERNED BY SEC. 8(C) OF THE ACT OF FEBRUARY 13,
1925.  P. 44. 

(4)  THIS COURT BEING EQUALLY DIVIDED IN OPINION AS TO WHETHER THE
CIRCUIT COURT OF APPEALS HAD POWER, IN THE ABSENCE OF AN APPLICATION
FOR ALLOWANCE OF THE APPEAL, TO DECIDE THE CASE ON THE MERITS, THE
ACTION OF THAT COURT IN TAKING JURISDICTION OF THE APPEAL IS AFFIRMED. 
P. 44. 

(5)  THE CONDUCT OF PETITIONERS DID NOT CONSTITUTE "MISBEHAVIOR  ...
SO NEAR" THE PRESENCE OF THE COURT "AS TO OBSTRUCT THE ADMINISTRATION
OF JUSTICE" WITHIN THE MEANING OF SEC. 268 OF THE JUDICIAL CODE.  P.
52. 

SO FAR AS THE CRIME OF CONTEMPT IS CONCERNED, THE FACT THAT THE
DISTRICT JUDGE RECEIVED THE ADMINISTRATOR'S LETTER IS INCONSEQUENTIAL. 

2.  THE WORDS "SO NEAR THERETO" IN SEC. 268 OF THE JUDICIAL CODE ARE
TO BE CONSTRUED AS HAVING A GEOGRAPHICAL, RATHER THAN A CAUSAL,
CONNOTATION.  P. 48. 

3. THE PHRASE "SO NEAR THERETO AS TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE" LIKEWISE CONNOTES THAT THE MISBEHAVIOR MUST HAVE OCCURRED IN
THE VICINITY OF THE COURT.  P. 48. 

4.  THE HISTORY OF SECS. 1 AND 2 OF THE ACT OF MARCH 2, 1831, AND OF
SEC. 135 OF THE CRIMINAL CODE, REQUIRES METICULOUS REGARD FOR THE
SEPARATE CATEGORIES OF OFFENSES THEREIN EMBRACED, SO THAT THE INSTANCES
WHERE THERE IS NO RIGHT TO JURY TRIAL WILL BE NARROWLY RESTRICTED.  P.
49. 

5.  THE PHRASE "SO NEAR THERETO" MUST BE RESTRICTED TO ACTS IN THE
VICINITY OF THE COURT AND NOT BE CONSTRUED TO APPLY TO ALL ACTS WHICH
HAVE A "REASONABLE TENDENCY" TO "OBSTRUCT THE ADMINISTRATION OF
JUSTICE."  P. 49. 

6.  TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402, OVERRULED. 
P. 52. 

NYE ET AL. V. UNITED STATES ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 311 U.S. 643, TO REVIEW THE AFFIRMANCE OF AN ORDER UPON
AN ADJUDICATION OF CONTEMPT. 

THE COURT HAD NO PERSONAL KNOWLEDGE OF THE MATTERS SHOWN IN THE
EVIDENCE.  THEREFORE, IT WAS NECESSARY THAT THE FACTS BE SET FORTH IN
AN AFFIDAVIT BEFORE THE COURT IN ORDER TO GIVE THE COURT JURISDICTION
TO ISSUE THE ORDER TO SHOW CAUSE.  IN RE DEATON, 105 N.C. 59, 64; SONA
V. ALUMINUM CASTINGS CO., 214 F. 326.  THE TESTIMONY OF ELMORE WAS
GIVEN ON THE DEFENDANTS' MOTION TO DISMISS THE SUIT FOR WRONGFUL DEATH,
AND NOT FOR THE PURPOSE OF INITIATING A CONTEMPT PROCEEDING. 

THE CONDUCT ALLEGED AGAINST THE PETITIONERS CAN NOT BE CONSTRUED AS
AN AFFRONT TO, OR INTERFERENCE WITH, THE COURT AND ITS FUNCTIONS. 
NOTHING WAS DONE IN THE PRESENCE OF THE COURT. 

THE DISTRICT COURT PROCEEDED AS IN CIVIL CONTEMPT.  THE CAPTION IN
ITS FINDINGS OF FACT AND JUDGMENT, IN ITS ORDER TO SHOW CAUSE, IN THE
MOTION OF PLAINTIFF'S COUNSEL, IN THE COURT MINUTES SHOWING DENIAL OF
MOTIONS AND EXCEPTIONS, AND IN THE MOTIONS FILED BY THE PETITIONERS, IS
THE CAPTION OF THE SUIT FOR DAMAGES FOR WRONGFUL DEATH.  THERE WAS NO
ORDER CHARACTERIZING THE CHARGE AS CRIMINAL CONTEMPT; AND THE CONDUCT
CHARGED TOOK PLACE, IF AT ALL, SO FAR FROM THE DISTRICT COURT THAT IT
KNEW NOTHING ABOUT IT UNTIL THE EFFORTS OF PLAINTIFF'S COUNSEL, AND THE
TESTIMONY OF ELMORE ON THE MOTION TO DISMISS THE MAIN ACTION, BROUGHT
IT TO THE ATTENTION OF THE COURT. 

THE DISTRICT COURT PROCEEDED FOR CONSTRUCTIVE CIVIL CONTEMPT UNDER
THE "SO NEAR THERETO" CLAUSE OF SEC. 268, JUD.  CODE, WHEN IT DID NOT
HAVE THE POWER TO PROCEED FOR CIVIL CONTEMPT AND DID NOT HAVE POWER TO
ENTER A JUDGMENT OTHERWISE.  GOMPERS V. BUCKS STOVE & RANGE CO., 221
U.S. 418, 448; IN RE SIXTH & WISCONSIN TOWER, INC., 108 F.2D 538, 540. 

IF THE CONDUCT OF THE PETITIONERS WAS HOSTILE TO ANY COURT, IT WAS TO
THE PROBATE COURT.  THE DISTRICT COURT COULD ENTERTAIN THE ACTION FOR
WRONGFUL DEATH ONLY AS LONG AS ELMORE REMAINED ADMINISTRATOR OF THE
ESTATE, AND THE EFFECT ON THE DISTRICT COURT OF A DISCHARGE IN THE
PROBATE COURT COULD BE ONLY INCIDENTAL. 

IF THE AFFIDAVIT AND FINAL ACCOUNT HAD BEEN CONTEMPTUOUSLY PROCURED
BY THE PETITIONERS AND FILED IN THE PROBATE COURT, THE POWER TO PUNISH
FOR SUCH CONDUCT WOULD HAVE BEEN IN THE PROBATE COURT AND NOT IN THE
DISTRICT COURT. 

THE COURT CONCLUDED THAT ALL THAT NYE DID BY PROCURING THE WRITING OF
THE LETTERS TO THE COURT AND TO PLAINTIFF'S COUNSEL WAS FOR THE PURPOSE
OF PREVENTING THE PROSECUTION OF THE CIVIL ACTION ON ITS MERITS. 
THOUGH THE COURT SAYS THAT THIS CAUSED A LONG DELAY, SEVERAL HEARINGS
AND EXPENSE, THERE IS NO FINDING THAT ELMORE'S RIGHTS WERE PREJUDICED,
OR THAT THE SUIT IN THE FEDERAL COURT WAS DISCHARGED ON ACCOUNT OF THE
FILING OF THE FINAL ACCOUNT IN THE PROBATE COURT. 

THE JUDGMENT OF NON-SUIT RENDERED VOID THE JUDGMENT OF CONTEMPT. 

THE CONTEMPT ADJUDICATED AND CHARGED WAS UNMISTAKABLY CRIMINAL AND
THE PROCEEDING WAS APPROPRIATE FOR THE PURPOSE.  FOR PURPOSES OF
APPEAL, THE NATURE OF THE JUDGMENT IS DECISIVE OF THE CRIMINAL OR CIVIL
CHARACTER OF THE CONTEMPT.  THE JUDGMENT IMPOSED UNCONDITIONAL FINES
PAYABLE TO THE UNITED STATES.  APART FROM THE NATURE OF THE SENTENCE,
THE JUDGMENT SPECIFICALLY FOUND THE PETITIONERS GUILTY OF MISBEHAVIOR
SO NEAR THE PRESENCE OF THE COURT AS TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE.  THIS WAS UNEQUIVOCAL EVIDENCE THAT THE PURPOSE OF THE FINES
AND OF THE ADJUDICATION OF CONTEMPT WAS TO VINDICATE THE AUTHORITY OF
THE COURT, NOT TO PERFECT THE REMEDIES OF A PRIVATE SUITOR. 

THE PROCEEDINGS ANTERIOR TO THE JUDGMENT SUPPORT THE SAME
CONCLUSION.  THE PRAYER OF THE MOTION FOR A RULE TO SHOW CAUSE WAS NOT
FOR REMEDIAL PUNISHMENT IN AID OF THE MAIN SUIT.  IT SPEAKS THE
LANGUAGE OF PUBLIC JUSTICE NOT OF PRIVATE LITIGATION.  THE ACTS CHARGED
WERE UNMISTAKABLY CRIMINAL CONTEMPT, IF CONTEMPT AT ALL.  THEY DID NOT
VIOLATE A COURT ORDER; THEY OBSTRUCTED THE WORK OF THE COURT AND
ATTEMPTED TO DECEIVE THE JUDGE.  MOREOVER, THE RESPONDENTS TO THE RULE
TO SHOW CAUSE WERE NOT PARTIES TO A PENDING ACTION; THEY WERE
STRANGERS.  AND THE MOVANT FOR THE RULE WAS NOT THE PLAINTIFF IN THE
ACTION, BUT HIS ATTORNEY.  WHILE THE PROCEEDINGS WERE ENTITLED IN THE
ORIGINAL ACTION AND THE UNITED STATES WAS NOT A PARTY UNTIL THE APPEAL,
NEITHER CIRCUMSTANCE IS DECISIVE OF THE NATURE OF THE CONTEMPT.  THE
DEFENDANTS COULD NOT HAVE BEEN UNCERTAIN THAT PUNISHMENT RATHER THAN
RELIEF WAS THE OBJECT IN VIEW. 

SINCE THE CONTEMPT WAS CRIMINAL THE JURISDICTIONAL OBJECTION MUST
PREVAIL.  IN ANY EVENT, THE PROCEEDINGS WERE ADEQUATE TO SUPPORT THE
IMPOSITION OF A CRIMINAL PENALTY. 

THE FINDINGS OF FACT SUPPORT THE CONCLUSION THAT THE PETITIONERS WERE
GUILTY OF MISBEHAVIOR SO NEAR THE PRESENCE OF THE COURT AS TO OBSTRUCT
THE ADMINISTRATION OF JUSTICE, WITHIN THE MEANING OF SEC. 268 OF THE
JUDICIAL CODE. 

THE PETITIONERS' CONDUCT WAS A DELIBERATE ATTEMPT TO THWART THE
PROSECUTION OF AN ACTION BY UNDUE INFLUENCE EXERCISED ON THE LITIGANT
AND MISREPRESENTATIONS MADE TO THE COURT.  SUCH AN ATTEMPT IS A
CONTEMPT WHEN THE MEANS CONSISTS OF FORCE OR THREATS DIRECTED AGAINST A
SUITOR; AND THE TYPE OF INFLUENCE EXERTED IN THE PRESENT CASE IS
INDISTINGUISHABLE.  MOREOVER, THE CONDUCT OF THE PETITIONERS AMOUNTED
TO A MISREPRESENTATION.  FALSEHOOD MAY HAVE OBSTRUCTIVE QUALITIES WHICH
WARRANT A FINDING OF CONTEMPT. 

THE MISBEHAVIOR WAS IN THE PRESENCE OF THE COURT OR "SO NEAR THERETO
AS TO OBSTRUCT THE ADMINISTRATION OF JUSTICE."  THE EARLY VIEW THAT THE
POWER OF SUMMARY PUNISHMENT IN CASES OF MISBEHAVIOR IS CONFINED BY THE
STATUTE TO ASSURING ORDER AND DECORUM IN COURT HAS BEEN ABANDONED.  IT
IS ALSO CLEAR THAT THE LANGUAGE IS NOT TO BE "SPATIALLY CONSTRUED."  IT
IS UNNECESSARY TO RELY UPON THE MAJORITY OPINION IN TOLEDO NEWSPAPER
CO. V. UNITED STATES, 247 U.S. 402; THE PRESENT CASE FALLS FAIRLY
WITHIN THE DISSENTING OPINION OF MR. JUSTICE HOLMES.  A COURT WITHOUT
PLAINTIFFS CAN NOT DO BUSINESS AS A COURT.  WHILE THE PETITIONERS'
EFFORTS TO ELIMINATE ELMORE AS A PLAINTIFF ULTIMATELY FAILED, THERE WAS
AN ACTUAL OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE.  MOREOVER, THE
LETTER WHICH THE PETITIONERS HAD ELMORE WRITE TO THE JUDGE WAS ITSELF
CONTUMACIOUS. 

THE CONTENTION THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION
BECAUSE THE VERIFICATION WAS FILED A WEEK AFTER THE MOTION FOR AN ORDER
TO SHOW CAUSE IS WITHOUT MERIT. 

THE CONTENTION THAT THE SETTLEMENT OF ELMORE'S ACTION FOR WRONGFUL
DEATH, PENDING THIS APPEAL, REQUIRES THE JUDGMENT OF CONTEMPT TO BE SET
ASIDE, RESTS UPON THE UNSOUND PREMISE THAT THE CONTEMPT WAS CIVIL. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE ADJUDGED GUILTY OF CONTEMPT UNDER SEC. 268 OF THE
JUDICIAL CODE (36 STAT. 1163, 28 U.S.C. SEC. 385) FOR THEIR EFFORTS TO
OBTAIN A DISMISSAL OF A SUIT BROUGHT BY ONE ELMORE IN THE FEDERAL
DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA.  ELMORE,
ADMINISTRATOR OF THE ESTATE OF HIS SON, BROUGHT THAT ACTION, IN FORMA
PAUPERIS, AGAINST ONE COUNCIL AND BERNARD, PARTNERS, TRADING AS B.C.
REMEDY CO., AND ALLEGED THAT HIS SON DIED AS A RESULT OF THE USE OF A
MEDICINE, KNOWN AS B C AND MANUFACTURED AND SOLD BY THEM.  THE COURT
APPOINTED WILLIAM B. GUTHRIE TO REPRESENT ELMORE.  DEFENDANTS FILED AN
ANSWER APRIL 29, 1939.  ON APRIL 19, 1939, ELMORE NOTIFIED THE DISTRICT
JUDGE AND HIS LAWYER BY LETTERS THAT HE DESIRED TO HAVE THE CASE
DISMISSED.  THE SUBSTANCE OF THE EPISODE INVOLVING THE IMPROPER CONDUCT
OF PETITIONERS WAS FOUND AS FOLLOWS: 

ELMORE IS ILLITERATE AND FEEBLE IN MIND AND BODY.  PETITIONERS N1,
THROUGH THE USE OF LIQUOR AND PERSUASION, INDUCED ELMORE TO SEEK A
TERMINATION OF THE ACTION.  NYE DIRECTED HIS OWN LAWYER TO PREPARE THE
LETTERS TO THE DISTRICT JUDGE AND TO GUTHRIE AND TO PREPARE A FINAL
ADMINISTRATION ACCOUNT TO BE FILED IN THE LOCAL PROBATE COURT.  NYE
TOOK ELMORE TO THE PROBATE COURT, HAD HIM DISCHARGED AS ADMINISTRATOR,
AND PAID THE CLERK A FEE OF $1.  HE THEN TOOK ELMORE TO THE POSTOFFCE,
REGISTERED THE LETTERS AND PAID THE POSTAGE.  ELMORE, HOWEVER, WAS NOT
PROMISED OR PAID ANYTHING.  THESE EVENTS TOOK PLACE MORE THAN 100 MILES
FROM DURHAM, NORTH CAROLINA, WHERE THE DISTRICT COURT WAS LOCATED. 

ON SEPTEMBER 30, 1939, GUTHRIE FILED A MOTION  FN2  ASKING FOR AN
ORDER REQUIRING NYE TO SHOW CAUSE "WHY HE SHOULD NOT BE ATTACHED AND
HELD AS FOR CONTEMPT OF THIS COURT."  FN3  THE COURT ISSUED A SHOW
CAUSE ORDER TO NYE AND MAYERS WHO FILED THEIR ANSWERS.  THERE WAS A
HEARING.  EVIDENCE WAS INTRODUCED AND ARGUMENT WAS HEARD ON MOTIONS TO
DISMISS.  THE COURT FOUND THAT THE WRITING OF THE LETTERS AND THE
FILING OF THE FINAL ACCOUNT WERE PROCURED BY NYE "FOR THE EXPRESS AND
DEFINITE PURPOSE OF PREVENTING THE PROSECUTION OF THE CIVIL ACTION IN
THE FEDERAL COURT AND WITH INTENT TO OBSTRUCT AND TO PREVENT THE TRIAL
OF THE CASE ON ITS MERITS"; AND THAT THE CONDUCT OF NYE AND MAYERS "DID
OBSTRUCT AND IMPEDE THE DUE ADMINISTRATION OF JUSTICE IN THIS CAUSE;
THAT THE CONDUCT HAS CAUSED A LONG DELAY, SEVERAL HEARINGS AND ENORMOUS
EXPENSE."  IT ACCORDINGLY HELD THAT THEIR CONDUCT WAS "MISBEHAVIOR SO
NEAR TO THE PRESENCE OF THE COURT AS TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE" AND ADJUDGED EACH GUILTY OF CONTEMPT.  IT ORDERED NYE TO PAY
THE COSTS OF THE CONTEMPT PROCEEDINGS, INCLUDING $500 TO GUTHRIE, AND A
FINE OF $500; AND IT ORDERED MAYERS TO PAY A FINE OF $250.  THE
DISTRICT COURT FILED ITS FINDING OF FACTS AND JUDGMENT ON FEBRUARY 8,
1940.  ON MARCH 15, 1940, PETITIONERS FILED A NOTICE OF APPEAL FROM THE
JUDGMENT.  FN4  THE CIRCUIT COURT OF APPEALS AFFIRMED THAT JUDGMENT. 
FN5  113 F.2D 1006.  WE GRANTED THE PETITION FOR CERTIORARI BECAUSE THE
INTERPRETATION OF THE POWER OF THE FEDERAL COURTS UNDER SEC. 268 OF THE
JUDICIAL CODE TO PUNISH CONTEMPTS RAISED MATTERS OF GRAVE IMPORTANCE. 

WE ARE MET AT THE THRESHOLD WITH A QUESTION AS TO THE JURISDICTION OF
THE CIRCUIT COURT OF APPEALS OVER THE APPEAL.  THE GOVERNMENT CONCEDES
THAT IF THIS WAS A CASE OF CIVIL CONTEMPT, THE NOTICE OF APPEAL WAS
EFFECTIVE UNDER RULE 73 OF THE RULES OF CIVIL PROCEDURE.  IT ARGUES,
HOWEVER, THAT THE CONTEMPT WAS CRIMINAL - IN WHICH CASE THE APPEAL WAS
NOT TIMELY IF THE CRIMINAL APPEALS RULES GOVERN,  FN6  AND NOT MADE IN
THE PROPER FORM IF SEC. 8(C) OF THE ACT OF FEBRUARY 13, 1925(43 STAT.
936, 940, 45 STAT. 54, 28 U.S.C. SEC. 230) IS APPLICABLE.  FN7 

WE DO NOT THINK THIS WAS A CASE OF CIVIL CONTEMPT.  WE RECENTLY
STATED IN MCCRONE V. UNITED STATES, 307 U.S. 61, 64, "WHILE PARTICULAR
ACTS DO NOT ALWAYS READILY LEND THEMSELVES TO CLASSIFICATION AS CIVIL
OR CRIMINAL CONTEMPTS, A CONTEMPT IS CONSIDERED CIVIL WHEN THE
PUNISHMENT IS WHOLLY REMEDIAL, SERVES ONLY THE PURPOSES OF THE
COMPLAINANT, AND IS NOT INTENDED AS A DETERRENT TO OFFENSES AGAINST THE
PUBLIC."  THE FACTS OF THIS CASE DO NOT MEET THAT STANDARD.  WHILE THE
PROCEEDINGS IN THE DISTRICT COURT WERE ENTITLED IN ELMORE'S ACTION AND
THE UNITED STATES WAS NOT A PARTY UNTIL THE APPEAL, THOSE CIRCUMSTANCES
THOUGH RELEVANT (GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 445
446) ARE NOT CONCLUSIVE AS TO THE NATURE OF THE CONTEMPT.  THE FACT
THAT NYE WAS ORDERED TO PAY THE COSTS OF THE PROCEEDING, INCLUDING $500
TO GUTHRIE, IS ALSO NOT DECISIVE.  AS MR. JUSTICE BRANDEIS STATED IN
UNION TOOL CO. V. WILSON, 259 U.S. 107, 110, "WHERE A FINE IS IMPOSED
PARTLY AS COMPENSATION TO THE COMPLAINANT AND PARTLY AS PUNISHMENT, THE
CRIMINAL FEATURE OF THE ORDER IS DOMINANT AND FIXES ITS CHARACTER FOR
PURPOSES OF REVIEW."  THE ORDER IMPOSES UNCONDITIONAL FINES PAYABLE TO
THE UNITED STATES.  IT AWARDS NO RELIEF TO A PRIVATE SUITOR.  THE
PRAYER FOR RELIEF  FN8  AND THE ACTS CHARGED  FN9  CARRY THE CRIMINAL
HALLMARK.  CF. GOMPERS V. BUCKS STOVE & RANGE CO., SUPRA, P. 449.  THEY
CLEARLY DO NOT REVEAL ANY PURPOSE TO PUNISH FOR CONTEMPT "IN AID OF THE
ADJUDICATION SOUGHT IN THE PRINCIPAL SUIT."  LAMB V. CRAMER, 285 U.S.
217, 220.  WHEN THERE IS ADDED THE "SIGNIFICANT" FACT (BESSETTE V. W.B.
CONKEY CO., 194 U.S. 324, 329) THAT NYE AND MAYERS WERE STRANGERS, NOT
PARTIES, TO ELMORE'S ACTION, THERE CAN BE NO REASONABLE DOUBT THAT THE
PUNITIVE CHARACTER OF THE ORDER WAS DOMINANT. 

WE COME THEN TO THE QUESTION OF THE JURISDICTION OF THE CIRCUIT COURT
OF APPEALS.  WE DISAGREE WITH THE GOVERNMENT IN ITS CONTENTION THAT THE
APPEAL IN THIS CASE WAS GOVERNED BY THE CRIMINAL APPEALS RULES.  THOSE
RULES WERE PROMULGATED PURSUANT TO THE PROVISIONS OF THE ACT OF MARCH
8, 1934(48 STAT. 399; 28 U.S.C. SEC. 723A) WHICH PROVIDED, INTER ALIA,
THAT THIS COURT SHOULD HAVE "THE POWER TO PRESCRIBE, FROM TIME TO TIME,
RULES OF PRACTICE AND PROCEDURE WITH RESPECT TO ANY OR ALL PROCEEDINGS
AFTER VERDICT, OR FINDING OF GUILT BY THE COURT IF A JURY HAS BEEN
WAIVED, OR PLEA OF GUILTY, IN CRIMINAL CASES."  THE RULES WERE ADOPTED
"AS THE RULES OF PRACTICE AND PROCEDURE IN ALL PROCEEDINGS AFTER PLEA
OF GUILTY, VERDICT OF GUILT BY A JURY OR FINDING OF GUILT BY THE TRIAL
COURT WHERE A JURY IS WAIVED, IN CRIMINAL CASES."  292 U.S. 661.  IN
THIS CASE THERE WAS NO PLEA OF GUILTY, THERE WAS NO VERDICT OF GUILT BY
A JURY, AND THERE WAS NO FINDING OF GUILT BY THE COURT WHERE A JURY WAS
WAIVED.  TO BE SURE, THE RULES AND THE ACT ARE APPLICABLE "IN CRIMINAL
CASES."  BUT WE DO NOT AGREE WITH THE GOVERNMENT THAT THE QUALIFYING
LANGUAGE OF THE RULES DESIGNATES MERELY THE STAGE OF THE PROCEEDINGS
"IN CRIMINAL CASES" WHEN THE RULES BECOME APPLICABLE.  IT IS OUR VIEW
THAT THE RULES DESCRIBE THE KINDS OF CASES TO WHICH THEY ARE TO BE
APPLIED.  THE ACT OF MARCH 8, 1934 AMENDED THE ACT OF FEBRUARY 24,
1933(47 STAT. 904) WHICH GAVE THIS COURT RULE-MAKING POWER "WITH
RESPECT TO ANY OR ALL PROCEEDINGS AFTER VERDICT IN CRIMINAL CASES." 
THE LEGISLATIVE HISTORY MAKES IT ABUNDANTLY CLEAR THAT THE AMENDMENT IN
1934, SO FAR AS MATERIAL HERE, WAS MADE BECAUSE "IT WOULD NOT SEEM TO
BE DESIRABLE THAT THERE SHOULD BE DIFFERENT TIMES AND MANNER OF
PROCEDURE IN CASES OF APPEAL WHERE THERE IS A VERDICT OF A JURY AS
DISTINGUISHED FROM CASES IN WHICH THERE IS A FINDING OF GUILT BY THE
COURT ON THE WAIVER OF A JURY."  H. REP. NO. 858, 73D CONG., 2D SESS.,
P. 1; S. REP. NO. 257, 73D CONG., 2D SESS., P. 1.  IN LIGHT OF THIS
HISTORY AND THE LANGUAGE OF THE ORDER PROMULGATING THE RULES WE
CONCLUDE THAT THE CATEGORIES OF CASES EMBRACED IN THE RULES CANNOT BE
EXPANDED BY INTERPRETATION TO INCLUDE THIS TYPE OF CASE. 

THAT CONCLUSION MEANS THAT THIS APPEAL WAS GOVERNED BY SEC. 8(C) OF
THE ACT OF FEBRUARY 13, 1925.  THE COURT IS EQUALLY DIVIDED IN OPINION
AS TO WHETHER THE CIRCUIT COURT OF APPEALS, IN ABSENCE OF AN
APPLICATION FOR ALLOWANCE OF THE APPEAL, HAD THE POWER TO DECIDE THE
CASE ON THE MERITS.  HENCE THE ACTION OF THAT COURT IN TAKING
JURISDICTION OVER THE APPEAL IS AFFIRMED. 

WE COME THEN TO THE MERITS. 

THE QUESTION IS WHETHER THE CONDUCT OF PETITIONERS CONSTITUTED
"MISBEHAVIOR  ...  SO NEAR" THE PRESENCE OF THE COURT "AS TO OBSTRUCT
THE ADMINISTRATION OF JUSTICE" WITHIN THE MEANING OF SEC. 268 OF THE
JUDICIAL CODE.  FN10  THAT SECTION DERIVES FROM THE ACT OF MARCH 2,
1831(4 STAT. 487).  THE ACT OF 1789(1 STAT. 73, 83) PROVIDED THAT
COURTS OF THE UNITED STATES "SHALL HAVE POWER  ...  TO PUNISH BY FINE
OR IMPRISONMENT, AT THE DISCRETION OF SAID COURTS, ALL CONTEMPTS OF
AUTHORITY IN ANY CAUSE OR HEARING BEFORE THE SAME."  ABUSES AROSE,
FN11  CULMINATING IN IMPEACHMENT PROCEEDINGS AGAINST JAMES H. PECK, A
FEDERAL DISTRICT JUDGE, WHO HAD IMPRISONED AND DISBARRED ONE LAWLESS
FOR PUBLISHING A CRITICISM OF ONE OF HIS OPINIONS IN A CASE WHICH WAS
ON APPEAL.  JUDGE PECK WAS ACQUITTED.  FN12  BUT THE HISTORY OF THAT
EPISODE MAKES ABUNDANTLY CLEAR THAT IT SERVED AS THE OCCASION FOR A
DRASTIC DELIMITATION BY CONGRESS OF THE BROAD UNDEFINED POWER OF THE
INFERIOR FEDERAL COURTS UNDER THE ACT OF 1789. 

THE DAY AFTER JUDGE PECK'S ACQUITTAL CONGRESS TOOK STEPS TO CHANGE
THE ACT OF 1789.  THE HOUSE DIRECTED ITS COMMITTEE ON THE JUDICIARY "TO
INQUIRE INTO THE EXPEDIENCY OF DEFINING BY STATUTE ALL OFFENCES WHICH
MAY BE PUNISHED AS CONTEMPTS OF THE COURTS OF THE UNITED STATES, AND
ALSO TO LIMIT THE PUNISHMENT FOR THE SAME."  FN13  NINE DAYS LATER
JAMES BUCHANAN BROUGHT IN A BILL WHICH BECAME THE ACT OF MARCH 2,
1831.  HE HAD CHARGE OF THE PROSECUTION OF JUDGE PECK AND DURING THE
TRIAL HAD TOLD THE SENATE:  FN14  "I WILL VENTURE TO PREDICT, THAT
WHATEVER MAY BE THE DECISION OF THE SENATE UPON THIS IMPEACHMENT, JUDGE
PECK HAS BEEN THE LAST MAN IN THE UNITED STATES TO EXERCISE THIS POWER,
AND MR. LAWLESS HAS BEEN ITS LAST VICTIM."  THE ACT OF MARCH 2, 1831,
"DECLARATORY OF THE LAW CONCERNING CONTEMPTS OF COURT," CONTAINED TWO

"THAT THE POWER OF THE SEVERAL COURTS OF THE UNITED STATES TO ISSUE
ATTACHMENTS AND INFLICT SUMMARY PUNISHMENTS FOR CONTEMPTS OF COURT,
SHALL NOT BE CONSTRUED TO EXTEND TO ANY CASES EXCEPT THE MISBEHAVIOUR
OF ANY PERSON OR PERSONS IN THE PRESENCE OF THE SAID COURTS, OR SO NEAR
THERETO AS TO OBSTRUCT THE ADMINISTRATION OF JUSTICE, THE MISBEHAVIOUR
OF ANY OF THE OFFICERS OF THE SAID COURTS IN THEIR OFFICIAL
TRANSACTIONS, AND THE DISOBEDIENCE OR RESISTANCE BY ANY OFFICER OF THE
SAID COURTS, PARTY, JUROR, WITNESS, OR ANY OTHER PERSON OR PERSONS, TO
ANY LAWFUL WRIT, PROCESS, ORDER, RULE, DECREE, OR COMMAND OF THE SAID
COURTS." 

SEC. 2 OF THAT ACT, FROM WHICH SEC. 135 OF THE CRIMINAL CODE  FN15
(35 STAT. 1113, 18 U.S.C. SEC. 241) DERIVES, PROVIDED: 

"THAT IF ANY PERSON OR PERSONS SHALL, CORRUPTLY, OR BY THREATS OR
FORCE, ENDEAVOUR TO INFLUENCE, INTIMIDATE, OR IMPEDE ANY JUROR,
WITNESS, OR OFFICER, IN ANY COURT OF THE UNITED STATES, IN THE
DISCHARGE OF HIS DUTY, OR SHALL, CORRUPTLY, OR BY THREATS OR FORCE,
OBSTRUCT, OR IMPEDE, OR ENDEAVOUR TO OBSTRUCT OR IMPEDE, THE DUE
ADMINISTRATION OF JUSTICE THEREIN, EVERY PERSON OR PERSONS, SO
OFFENDING, SHALL BE LIABLE TO PROSECUTION THEREFOR, BY INDICTMENT, AND
SHALL, ON CONVICTION THEREOF, BE PUNISHED, BY FINE NOT EXCEEDING FIVE
HUNDRED DOLLARS, OR BY IMPRISONMENT, NOT EXCEEDING THREE MONTHS, OR
BOTH, ACCORDING TO THE NATURE AND AGGRAVATION OF THE OFFENCE." 

IN 1918 THIS COURT IN TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S.
402, 418, 419, STATED THAT "THERE CAN BE NO DOUBT" THAT THE FIRST
GRANTED AND IMPOSED NO LIMITATIONS NOT ALREADY EXISTING"; AND THAT IT
WAS "INTENDED TO PREVENT THE DANGER BY REMINISCENCE OF WHAT HAD GONE
BEFORE, OF ATTEMPTS TO EXERCISE A POWER NOT POSSESSED WHICH  ...  HAD
BEEN SOMETIMES DONE IN THE EXERCISE OF LEGISLATIVE POWER."  THE
INACCURACY OF THAT HISTORIC OBSERVATION HAS BEEN PLAINLY DEMONSTRATED. 
FRANKFURTER & LANDIS, POWER OF CONGRESS OVER PROCEDURE IN CRIMINAL
CONTEMPTS IN "INFERIOR" FEDERAL COURTS - A STUDY IN SEPARATION OF
POWERS, 37 HARV. L. REV. 1010.  CONGRESS WAS RESPONDING TO GRIEVANCES
ARISING OUT OF THE EXERCISE OF JUDICIAL POWER AS DRAMATIZED BY THE PECK
IMPEACHMENT PROCEEDINGS.  CONGRESS WAS INTENT ON CURTAILING THAT
POWER.  THE TWO SECTIONS OF THE ACT OF MARCH 2, 1831 WHEN READ
TOGETHER, AS THEY MUST BE, CLEARLY INDICATE THAT THE CATEGORY OF
CRIMINAL CASES WHICH COULD BE TRIED WITHOUT A JURY WAS NARROWLY
CONFINED.  THAT THE PREVIOUSLY UNDEFINED POWER OF THE COURTS WAS
SUBSTANTIALLY CURTAILED BY THAT ACT WAS EARLY RECOGNIZED BY LOWER
FEDERAL COURTS.  UNITED STATES V. HOLMES, FED. CAS. NO. 15,383, AT P.
363; EX PARTE POULSON, FED. CAS. NO. 11,350; UNITED STATES V. NEW
BEDFORD BRIDGE, FED. CAS. NO. 15,867, AT P. 104; UNITED STATES V.
SEELEY, FED. CAS. NO. 16,248A; UNITED STATES V. EMERSON, 4 CRANCH
(C.C.)  188; FED. CAS. NO. 15,050; KENT'S COMMENTARIES (3RD ED. 1836)
PP. 300-301.  AND WHEN THE ACT CAME BEFORE THIS COURT IN EX PARTE
ROBINSON, 19 WALL.  505, 511, MR. JUSTICE FIELD, SPEAKING FOR THE
COURT, ACKNOWLEDGED THAT IT HAD LIMITED THE POWER OF THOSE COURTS.  AND
SEE EX PARTE BRADLEY, 7 WALL.  364, 374.  SO FAR AS THE DECISIONS OF
THIS COURT ARE CONCERNED, THAT VIEW PERSISTED TO THE TIME WHEN TOLEDO
NEWSPAPER CO. V. UNITED STATES, SUPRA, WAS DECIDED.  SEE EX PARTE WALL,
107 U.S. 265; SAVIN, PETITIONER, 131 U.S. 267, 276; CUDDY, PETITIONER,
131 U.S. 280, 285; EILENBECKER V. DISTRICT COURT, 134 U.S. 31, 38. 

MINDFUL OF THAT HISTORY, WE COME TO THE CONSTRUCTION OF SEC. 268 OF
THE JUDICIAL CODE IN LIGHT OF THE SPECIFIC FACTS OF THIS CASE.  THE
QUESTION IS WHETHER THE WORDS "SO NEAR THERETO" HAVE A GEOGRAPHICAL OR
A CAUSAL CONNOTATION.  READ IN THEIR CONTEXT AND IN THE LIGHT OF THEIR
ORDINARY MEANING, WE CONCLUDE THAT THEY ARE TO BE CONSTRUED AS
GEOGRAPHICAL TERMS.  IN EX PARTE ROBINSON, SUPRA, AT P. 511, IT WAS
SAID THAT AS A RESULT OF THOSE PROVISIONS THE POWER TO PUNISH FOR
CONTEMPTS "CAN ONLY BE EXERCISED TO INSURE ORDER AND DECORUM" IN
COURT.  "MISBEHAVIOR OF ANY PERSON IN THEIR PRESENCE" PLAINLY FALLS IN
THAT CATEGORY.  EX PARTE TERRY, 128 U.S. 289.  AND IN SAVIN,
PETITIONER, SUPRA, IT WAS ALSO HELD TO INCLUDE ATTEMPTED BRIBES OF A
WITNESS, ONE IN THE JURY ROOM AND WITHIN A FEW FEET OF THE COURT ROOM
AND ONE IN THE HALLWAY IMMEDIATELY ADJOINING THE COURT ROOM.  SEE COOKE
V. UNITED STATES, 267 U.S. 517.  THE PHRASE "SO NEAR THERETO AS TO
OBSTRUCT THE ADMINISTRATION OF JUSTICE" LIKEWISE CONNOTES THAT THE
MISBEHAVIOR MUST BE IN THE VICINITY OF THE COURT.  NELLES & KING,
CONTEMPT BY PUBLICATION IN THE UNITED STATES, 28 COL. L. REV. 525,
530.  IT IS NOT SUFFICIENT THAT THE MISBEHAVIOR CHARGED HAS SOME DIRECT
RELATION TO THE WORK OF THE COURT.  "NEAR" IN THIS CONTEXT, JUXTAPOSED
TO "PRESENCE," SUGGESTS PHYSICAL PROXIMITY NOT RELEVANCY.  IN FACT, IF
THE WORDS "SO NEAR THERETO" ARE NOT READ IN THE GEOGRAPHICAL SENSE,
THEY COME CLOSE, AS THE GOVERNMENT ADMITS, TO BEING SURPLUSAGE.  THERE
MAY, OF COURSE, BE MANY TYPES OF "MISBEHAVIOR" WHICH WILL "OBSTRUCT THE
ADMINISTRATION OF JUSTICE" BUT WHICH MAY NOT BE "IN" OR "NEAR" TO THE
"PRESENCE" OF THE COURT.  BROAD CATEGORIES OF SUCH ACTS, HOWEVER, WERE
EXPRESSLY RECOGNIZED IN SEC. 2 OF THE ACT OF MARCH 2, 1831 AND
SUBSEQUENTLY IN SEC. 135 OF THE CRIMINAL CODE.  IT HAS BEEN HELD THAT
AN ACT OF MISBEHAVIOR THOUGH COVERED BY THE LATTER PROVISIONS MAY ALSO
BE A CONTEMPT IF COMMITTED IN THE "PRESENCE" OF THE COURT.  SAVIN,
PETITIONER, SUPRA.  AND SEE SINCLAIR V. UNITED STATES, 279 U.S. 749. 
YET IN VIEW OF THE HISTORY OF THOSE PROVISIONS, METICULOUS REGARD FOR
THOSE SEPARATE CATEGORIES OF OFFENSES MUST BE HAD, SO THAT THE
INSTANCES WHERE THERE IS NO RIGHT TO JURY TRIAL WILL BE NARROWLY
RESTRICTED.  IF "SO NEAR THERETO" BE GIVEN A CAUSAL MEANING, THEN SEC.
268 BY THE PROCESS OF JUDICIAL CONSTRUCTION WILL HAVE REGAINED MUCH OF
THE GENERALITY WHICH CONGRESS IN 1831 EMPHATICALLY INTENDED TO REMOVE. 
SEE THOMAS, PROBLEMS OF CONTEMPT OF COURT (1934) C. VII.  IF THAT
PHRASE BE NOT RESTRICTED TO ACTS IN THE VICINITY OF THE COURT BUT BE
ALLOWED TO EMBRACE ACTS WHICH HAVE A "REASONABLE TENDENCY" TO "OBSTRUCT
THE ADMINISTRATION OF JUSTICE" (TOLEDO NEWSPAPER CO. V. UNITED STATES,
SUPRA, P. 421) THEN THE CONDITIONS WHICH CONGRESS SOUGHT TO ALLEVIATE
IN 1831 HAVE LARGELY BEEN RESTORED.  SEE FOX, THE HISTORY OF CONTEMPT
OF COURT (1927) C. IX.  THE RESULT WILL BE THAT THE OFFENSES WHICH
CONGRESS DESIGNATED AS TRUE CRIMES UNDER SEC. 2 OF THE ACT OF MARCH 2,
1831 WILL BE ABSORBED AS CONTEMPTS WHEREVER THEY MAY TAKE PLACE.  WE
CANNOT BY THE PROCESS OF INTERPRETATION OBLITERATE THE DISTINCTIONS
WHICH CONGRESS DREW. 

WE ARE DEALING HERE ONLY WITH A PROBLEM OF STATUTORY CONSTRUCTION,
NOT WITH A QUESTION AS TO THE CONSTITUTIONALLY PERMISSIBLE SCOPE OF THE
CONTEMPT POWER.  BUT THAT IS NO REASON WHY WE SHOULD ADHERE TO THE
CONSTRUCTION ADOPTED BY TOLEDO NEWSPAPER CO. V. UNITED STATES, SUPRA,
AND LEAVE TO CONGRESS THE TASK OF DELIMITING THE STATUTE AS THUS
INTERPRETED.  THOUGH THE STATUTE IN QUESTION HAS BEEN ON THE BOOKS FOR
OVER A CENTURY, IT HAS NOT RECEIVED DURING ITS LONG LIFE THE BROAD
INTERPRETATION WHICH THAT DECISION GAVE IT.  RATHER, THAT BROAD
CONSTRUCTION IS RELATIVELY RECENT.  SO FAR AS DECISIONS OF THIS COURT
ARE CONCERNED, THE STATUTE DID NOT RECEIVE ANY SUCH EXPANDED
INTERPRETATION UNTIL TOLEDO NEWSPAPER CO. V. UNITED STATES, SUPRA, WAS
DECIDED IN 1918.  THE DECISIONS OF THIS COURT PRIOR TO 1918 PLAINLY
RECOGNIZED, AS WE HAVE NOTED, THAT CONGRESS THROUGH THE ACT OF MARCH 2,
1831 HAD IMPOSED A LIMITATION ON THE POWER TO PUNISH FOR CONTEMPTS - A
VIEW CONSISTENT WITH THE HOLDINGS OF THE LOWER FEDERAL COURTS DURING
THE YEARS IMMEDIATELY FOLLOWING THE ENACTMENT OF THE STATUTE.  THE
EARLY VIEW WAS BEST EXPRESSED IN EX PARTE POULSON, SUPRA, DECIDED IN
1835.  IN THAT CASE IT WAS HELD THAT THE ACT OF MARCH 2, 1831 GAVE THE
COURT NO POWER TO PUNISH A NEWSPAPER PUBLISHER FOR CONTEMPT FOR
PUBLISHING AN "OFFENSIVE" ARTICLE RELATIVE TO A PENDING CASE.  IT WAS
HELD THAT THE FIRST SECTION OF THE ACT "ALLUDES TO THAT KIND OF
MISBEHAVIOR WHICH IS CALCULATED TO DISTURB THE ORDER OF THE COURT, SUCH
AS NOISE, TUMULTUOUS OR DISORDERLY BEHAVIOR, EITHER IN OR SO NEAR TO IT
AS TO PREVENT ITS PROCEEDING IN THE ORDERLY DISPATCH OF ITS BUSINESS." 
P. 1208.  THAT WAS A PLAIN RECOGNITION THAT THE WORDS "SO NEAR THERETO"
CONNOTED PHYSICAL PROXIMITY.  AND PRIOR TO 1918 THE DECISIONS OF THIS
COURT DID NOT DEPART FROM THAT THEORY, HOWEVER THEY MAY HAVE EXPANDED
THE EARLIER NOTIONS OF "MISBEHAVIOR."  TO BE SURE, THE LOWER FEDERAL
COURTS IN THE INTERVENING YEARS HAD EXPRESSED A CONTRARIETY OF VIEWS ON
THE MEANING OF THE STATUTE  FN16  AND SOME WERE GIVING IT AN EXPANDED
SCOPE  FN17  WHICH WAS LATER APPROVED IN TOLEDO NEWSPAPER CO. V. UNITED
STATES, SUPRA.  BUT IT IS SIGNIFICANT THAT NOT UNTIL AFTER THE TURN OF
THIS CENTURY DID THE FIRST LINE OF FRACTURE APPEAR SUGGESTING THAT THE
STATUTE AUTHORIZED SUMMARY PUNISHMENT FOR PUBLICATION.  FN18  THUS THE
LEGISLATIVE HISTORY OF THIS STATUTE AND ITS CAREER DEMONSTRATE THAT
THIS CASE PRESENTS THE QUESTION OF CORRECTING A PLAIN MISREADING OF
LANGUAGE AND HISTORY SO AS TO GIVE FULL RESPECT TO THE MEANING WHICH
CONGRESS UNMISTAKABLY INTENDED THE STATUTE TO HAVE.  ITS LEGISLATIVE
HISTORY, ITS INTERPRETATION PRIOR TO 1918, THE CHARACTER AND NATURE OF
THE CONTEMPT PROCEEDINGS, ADMONISH US NOT TO GIVE RENEWED VITALITY TO
THE DOCTRINE OF TOLEDO NEWSPAPER CO. V. UNITED STATES, SUPRA, BUT TO
RECOGNIZE THE SUBSTANTIAL LEGISLATIVE LIMITATIONS ON THE CONTEMPT POWER
WHICH WERE OCCASIONED BY THE JUDGE PECK EPISODE.  AND THEY NECESSITATE
AN ADHERENCE TO THE ORIGINAL CONSTRUCTION OF THE STATUTE SO THAT,
UNLESS ITS REQUIREMENTS ARE CLEARLY SATISFIED, AN OFFENSE WILL BE DEALT
WITH AS THE LAW DEALS WITH THE RUN OF ILLEGAL ACTS.  CF. MR. JUSTICE
HOLMES DISSENTING IN TOLEDO NEWSPAPER CO. V. UNITED STATES, SUPRA, PP.
422 ET SEQ. 

THE CONDUCT OF PETITIONERS (IF THE FACTS FOUND ARE TAKEN TO BE TRUE)
WAS HIGHLY REPREHENSIBLE.  IT IS OF A KIND WHICH CORRUPTS THE JUDICIAL
PROCESS AND IMPEDES THE ADMINISTRATION OF JUSTICE.  BUT THE FACT THAT
IT IS NOT REACHABLE THROUGH THE SUMMARY PROCEDURE OF CONTEMPT DOES NOT
MEAN THAT SUCH CONDUCT CAN PROCEED WITH IMPUNITY.  SECTION 135 OF THE
CRIMINAL CODE, A DESCENDANT OF SEC. 2 OF THE ACT OF MARCH 2, 1831,
EMBRACES A BROAD CATEGORY OF OFFENSES.  AND CERTAINLY IT CANNOT BE
DENIED THAT THE CONDUCT HERE IN QUESTION COMES FAR CLOSER TO THE FAMILY
OF OFFENSES THERE DESCRIBED THAN IT DOES TO THE MORE LIMITED CLASSES OF
CONTEMPTS DESCRIBED IN SEC. 268 OF THE JUDICIAL CODE.  THE ACTS
COMPLAINED OF TOOK PLACE MILES FROM THE DISTRICT COURT.  THE EVIL
INFLUENCE WHICH AFFECTED ELMORE WAS IN NO POSSIBLE SENSE IN THE
"PRESENCE" OF THE COURT OR "NEAR THERETO."  SO FAR AS THE CRIME OF
CONTEMPT IS CONCERNED, THE FACT THAT THE JUDGE RECEIVED ELMORE'S LETTER
IS INCONSEQUENTIAL. 

WE MAY CONCEDE THAT THERE WAS AN OBSTRUCTION IN THE ADMINISTRATION OF
JUSTICE, AS EVIDENCED BY THE LONG DELAY AND LARGE EXPENSE WHICH THE
REPREHENSIBLE CONDUCT OF PETITIONERS ENTAILED.  AND IT WOULD FOLLOW
THAT UNDER THE "REASONABLE TENDENCY" RULE OF TOLEDO NEWSPAPER CO. V.
UNITED STATES, SUPRA, THE COURT BELOW DID NOT ERR IN AFFIRMING THE
JUDGMENT OF CONVICTION.  BUT FOR THE REASONS STATED THAT DECISION MUST
BE OVERRULED.  THE FACT THAT IN PURPOSE AND EFFECT THERE WAS AN
OBSTRUCTION IN THE ADMINISTRATION OF JUSTICE DID NOT BRING THE
CONDEMNED CONDUCT WITHIN THE VICINITY OF THE COURT IN ANY NORMAL
MEANING OF THE TERM.  IT WAS NOT MISBEHAVIOR IN THE VICINITY OF THE
COURT DISRUPTING TO QUIET AND ORDER OR ACTUALLY INTERRUPTING THE COURT
IN THE CONDUCT OF ITS BUSINESS.  CF. SAVIN, PETITIONER, SUPRA, AT P.
278.  HENCE, IT WAS NOT EMBRACED WITHIN SEC. 268 OF THE JUDICIAL CODE. 
IF PETITIONERS CAN BE PUNISHED FOR THEIR MISCONDUCT, IT MUST BE UNDER
THE CRIMINAL CODE WHERE THEY WILL BE AFFORDED THE NORMAL SAFEGUARDS
SURROUNDING CRIMINAL PROSECUTIONS.  ACCORDINGLY, THE JUDGMENT BELOW IS
REVERSED. 

FN1  NYE'S DAUGHTER WAS MARRIED TO THE SON OF COUNCIL, ONE OF THE
DEFENDANTS IN THE ELMORE ACTION.  MAYERS (MEARES) WAS NYE'S TENANT WHO
WAS ACQUAINTED WITH ELMORE. 

FN2  THE COURT HAD DEFERRED ACTION ON ELMORE'S INSPIRED REQUEST FOR A
DISMISSAL AT THE REQUEST OF GUTHRIE AND PENDING AN INVESTIGATION BY
HIM.  ON JULY 20, 1939, NYE AND ELMORE'S SON WERE EXAMINED UNDER OATH
BEFORE THE COURT AS TO THE EPISODE.  ON AUGUST 29, 1939, DEFENDANTS
MOVED TO DISMISS ELMORE'S ACTION ON THE GROUND THAT HE HAD BEEN
DISCHARGED AS ADMINISTRATOR.  A HEARING WAS HELD ON THAT MOTION AND
ELMORE TESTIFIED RESPECTING HIS DISCHARGE.  THE EVIDENCE SO ADDUCED WAS
THE BASIS OF THE MOTION FOR AN ORDER TO SHOW CAUSE ON SEPTEMBER 30,
1939. 

FN3  THE MOTION FOR AN ORDER TO SHOW CAUSE ALSO PRAYED:  "2.  THAT
THE COURT CALL TO THE ATTENTION OF THE UNITED STATES DISTRICT ATTORNEY
FOR THIS DISTRICT THE ENTIRE RECORD IN THIS CAUSE WITH REQUEST TO THE
SAID UNITED STATES DISTRICT ATTORNEY TO INVESTIGATE THE QUESTION AS TO
WHETHER OR NOT A CONSPIRACY WAS ENTERED INTO BY AND BETWEEN R. H. NYE,
W. E. TIMBERLAKE AND L. C. MAYERS, ALL OF ROBESON COUNTY, NORTH
CAROLINA, TO DEFEAT THE ADMINISTRATION OF JUSTICE AND THE ORDERLY
PROCESS OF THIS COURT AND FURTHER AS TO WHETHER OR NOT THEY HAVE BEEN
GUILTY OF SUBORNATION OF PERJURY AND FURTHER WHETHER THEY CONSPIRED TO
PRACTICE A FRAUD AND DID PRACTICE A FRAUD UPON THIS COURT.  3.  THAT
THIS MATTER THROUGH THE OFFICE OF THE UNITED STATES DISTRICT ATTORNEY
FOR THIS DISTRICT BE SUBMITTED AND INQUIRED INTO BY THE GRAND JURY FOR
SUCH ACTION AND ATTENTION THE GRAND JURY SHALL DEEM PROPER.  4.  FOR
SUCH OTHER AND FURTHER PROCEDURE AS TO THIS COURT MAY SEEM PROPER." 

FN4  ON MARCH 13, 1940, ELMORE, WITH THE ASSENT OF GUTHRIE, SUBMITTED
TO A JUDGMENT OF VOLUNTARY NON-SUIT IN THE ACTION FOR WRONGFUL DEATH
UPON PAYMENT OF A "SUBSTANTIAL SUM." 

FN5  THE UNITED STATES WAS MADE A PARTY WHEN THE CASE WAS DOCKETED IN
THE CIRCUIT COURT OF APPEALS.  IT ENTERED ITS APPEARANCE BUT ITS
ATTORNEYS APPARENTLY TOOK NO FURTHER PART IN THE PROCEEDINGS IN THAT
COURT. 

FN6  PROMULGATED MAY 7, 1934.  RULE III PROVIDES THAT AN APPEAL SHALL
BE TAKEN WITHIN FIVE DAYS AFTER ENTRY OF JUDGMENT OF CONVICTION OR OF
AN ORDER DENYING A MOTION FOR NEW TRIAL.  IN THE PRESENT CASE, THE
NOTICE OF APPEAL WAS FILED MORE THAN A MONTH AFTER THE JUDGMENT OF THE
DISTRICT COURT.  IN CASE THE CRIMINAL APPEALS RULES GOVERN, THE
GOVERNMENT ALSO POINTS OUT THAT RULE XI REQUIRES THAT PETITIONS FOR
CERTIORARI TO REVIEW A JUDGMENT OF THE APPELLATE COURT SHALL BE MADE
WITHIN THIRTY DAYS AFTER THE ENTRY OF JUDGMENT OF THAT COURT.  IN THE
PRESENT CASE THE PETITION FOR A WRIT OF CERTIORARI WAS FILED ABOUT TWO
MONTHS AFTER THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS. 

FN7  "NO APPEAL INTENDED TO BRING ANY JUDGMENT OR DECREE BEFORE A
CIRCUIT COURT OF APPEALS FOR REVIEW SHALL BE ALLOWED UNLESS APPLICATION
THEREFOR BE DULY MADE WITHIN THREE MONTHS AFTER THE ENTRY OF SUCH
JUDGMENT OR DECREE." 

FN8  SUPRA, NOTE 3. 

FN9  ON OCTOBER 30, 1939, THE DISTRICT COURT DENIED MOTIONS TO
DISMISS THE RULE TO SHOW CAUSE SAYING THAT "THE QUESTION TO BE
DETERMINED IS WHETHER THE RESPONDENTS, OR EITHER OF THEM, IS GUILTY OF
MISBEHAVIOR IN THE PRESENCE OF THE COURT, OR SO NEAR THERETO TO
OBSTRUCT THE ADMINISTRATION OF JUSTICE IN THIS COURT, AND THAT IS A
MATTER OF FACT TO BE DETERMINED BY THE EVIDENCE AND NOT ON MOTION." 

FN10  THIS SECTION PROVIDES:  "THE SAID COURTS SHALL HAVE POWER TO
IMPOSE AND ADMINISTER ALL NECESSARY OATHS, AND TO PUNISH, BY FINE OR
IMPRISONMENT, AT THE DISCRETION OF THE COURT, CONTEMPTS OF THEIR
AUTHORITY:  PROVIDED, THAT SUCH POWER TO PUNISH CONTEMPTS SHALL NOT BE
CONSTRUED TO EXTEND TO ANY CASES EXCEPT THE MISBEHAVIOR OF ANY PERSON
IN THEIR PRESENCE, OR SO NEAR THERETO AS TO OBSTRUCT THE ADMINISTRATION
OF JUSTICE, THE MISBEHAVIOR OF ANY OF THE OFFICERS OF SAID COURTS IN
THEIR OFFICIAL TRANSACTIONS, AND THE DISOBEDIENCE OR RESISTANCE BY ANY
SUCH OFFICER, OR BY ANY PARTY, JUROR, WITNESS, OR OTHER PERSON TO ANY
LAWFUL WRIT, PROCESS, ORDER, RULE, DECREE, OR COMMAND OF THE SAID
COURTS." 

FN11  SEE NELLES & KING, CONTEMPT BY PUBLICATION IN THE UNITED
STATES, 28 COL. L. REV. 401, 409 ET SEQ. 

FN12  STANSBURY, REPORT OF THE TRIAL OF JAMES H. PECK (1833). 

FN13  7 CONG. DEB., 21ST CONG., 2D SESS., FEB. 1, 1831, COLS.  560
561.  AND SEE HOUSE JOURNAL, 21ST CONG., 2D SESS., P. 245. 

FN14  STANSBURY, OP. CIT. P. 430. 

FN15  THAT SECTION PRESENTLY PROVIDES:  "WHOEVER CORRUPTLY, OR BY
THREATS OR FORCE, OR BY ANY THREATENING LETTER OR COMMUNICATION, SHALL
ENDEAVOR TO INFLUENCE, INTIMIDATE, OR IMPEDE ANY WITNESS, IN ANY COURT
OF THE UNITED STATES OR BEFORE ANY UNITED STATES COMMISSIONER OR
OFFICER ACTING AS SUCH COMMISSIONER, OR ANY GRAND OR PETIT JUROR, OR
OFFICER IN OR OF ANY COURT OF THE UNITED STATES, OR OFFICER WHO MAY BE
SERVING AT ANY EXAMINATION OR OTHER PROCEEDING BEFORE ANY UNITED STATES
COMMISSIONER OR OFFICER ACTING AS SUCH COMMISSIONER, IN THE DISCHARGE
OF HIS DUTY, OR WHO CORRUPTLY OR BY THREATS OR FORCE, OR BY ANY
THREATENING LETTER OR COMMUNICATION, SHALL INFLUENCE, OBSTRUCT, OR
IMPEDE, OR ENDEAVOR TO INFLUENCE, OBSTRUCT, OR IMPEDE, THE DUE
ADMINISTRATION OF JUSTICE THEREIN, SHALL BE FINED NOT MORE THAN ONE
THOUSAND DOLLARS, OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH." 

FN16  THAT "SO NEAR THERETO" IS A GEOGRAPHICAL TERM SEE EX PARTE
SCHULENBURG, 25 F. 211, 214(1885); HILLMON V. MUTUAL LIFE INS. CO., 79
F. 749(1897); MORSE V. MONTANA ORE-PURCHASING CO., 105 F. 337,
347(1900); CUYLER V. ATLANTIC & N.C.R. CO., 131 F. 95(1904).  AND SEE
NELLES & KING, OP. CIT., PP. 532, 539-542. 

FN17  FOR CASES EXPANDING THE CONCEPT OF "PRESENCE" AND "SO NEAR
THERETO" SEE IN RE BRULE, 71 F. 943(1895); MCCAULLY V. UNITED STATES,
25 APP. D.C. 404(1905); UNITED STATES V. ZAVELO, 177 F. 536(1910); KIRK
V. UNITED STATES, 192 F. 273(1911); IN RE INDEPENDENT PUB. CO., 228 F.
787(1915). 

FN18  NELLES & KING, OP. CIT., P. 539 CITING EX PARTE MCLEOD, 120 F.
130(1903) AND UNITED STATES V. HUFF, 206 F. 700(1913). 

MR. JUSTICE STONE, DISSENTING: 

THE COURT BELOW DID NOT PASS ON THE QUESTION, MOOTED HERE, WHETHER IT
ACQUIRED JURISDICTION UNDER THE APPEAL PROVISIONS OF THE APPLICABLE
FOUR MEMBERS OF THIS COURT ARE OF OPINION THAT IT DID.  ASSUMING FOR
PRESENT PURPOSES THAT IT HAD JURISDICTION TO DECIDE THE MERITS, I THINK
ITS DECISION WAS RIGHT AND THAT THE JUDGMENT BELOW SHOULD BE AFFIRMED. 

WE ARE CONCERNED HERE ONLY WITH THE MEANING AND APPLICATION OF AN ACT
OF CONGRESS WHICH HAS STOOD UNAMENDED ON THE STATUTE BOOKS FOR ONE
HUNDRED AND TEN YEARS.  IT GIVES STATUTORY RECOGNITION TO THE POWER OF
THE FEDERAL COURTS TO PUNISH SUMMARILY FOR CONTEMPT AND PROVIDES THAT
THAT POWER "SHALL NOT BE CONSTRUED TO EXTEND TO ANY CASES EXCEPT THE
MISBEHAVIOR OF ANY PERSON OR PERSONS IN THE PRESENCE OF THE SAID
COURTS, OR SO NEAR THERETO AS TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE." 

THE ISSUE IS NOT WHETHER THIS STATUTE HAS CURTAILED AN AUTHORITY
WHICH FEDERAL COURTS EXERCISED BEFORE ITS ENACTMENT.  CONCEDEDLY IT
HAS.  THE ONLY QUESTION BEFORE US IS WHETHER IT HAS SO LIMITED THAT
AUTHORITY AS TO PRECLUDE SUMMARY PUNISHMENT OF THE CONTEMPTUOUS ACTION
OF PETITIONER WHICH, IT IS NOT DENIED, IS "MISBEHAVIOR" ALTHOUGH NOT IN
THE PRESENCE OF THE COURT, AND WHICH, IT IS ADMITTED, SERIOUSLY
OBSTRUCTED THE ADMINISTRATION OF JUSTICE IN A CAUSE PENDING IN THE
COURT.  THE QUESTION IS IMPORTANT, FOR IF CONDUCT SUCH AS THIS RECORD
DISCLOSES MAY NOT BE DEALT WITH SUMMARILY THE ONLY RECOURSE OF A
FEDERAL COURT FOR THE PROTECTION OF THE INTEGRITY OF PROCEEDINGS
PENDING BEFORE IT, FROM ACTS OF CORRUPTION AND INTIMIDATION OUTSIDE THE
COURT ROOM, IS TO AWAIT THE INDICTMENT OF THE OFFENDERS, WITH OR
WITHOUT ADJOURNMENT OF THE PENDING PROCEEDINGS AS THE EXIGENCIES OF THE
CASE MAY REQUIRE. 

IT IS NOT DENIED THAT THE DISTANCE OF THE PRESENT CONTEMPTUOUS ACTION
FROM THE COURT IN MILES DID NOT LESSEN ITS INJURIOUS EFFECT, AND IN
THAT SENSE IT WAS "NEAR" ENOUGH TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE.  THE OPINION OF THE COURT SUPPORTS ITS CONCLUSION ON THE
GROUND THAT "NEAR" MEANS ONLY GEOGRAPHICAL NEARNESS AND SO IMPLICITLY
HOLDS THAT NO CONTEMPT IS SUMMARILY PUNISHABLE UNLESS IT IS EITHER IN
THE PRESENCE OF THE COURT OR IS SOME KIND OF PHYSICAL INTERFERENCE WITH
OR DISTURBANCE OF ITS GOOD ORDER, SO THAT THE NEARNESS TO THE COURT OF
THE CONTEMPTUOUS ACT HAS AN EFFECT IN OBSTRUCTING JUSTICE WHICH IT
WOULD NOT HAVE IF IT TOOK PLACE AT A MORE DISTANT POINT.  FROM ALL THIS
IT SEEMS TO FOLLOW THAT THE SURREPTITIOUS TAMPERING WITH WITNESSES,
JURORS OR PARTIES IN THE PRESENCE OF THE COURT, ALTHOUGH UNKNOWN TO IT,
WOULD BE SUMMARILY PUNISHABLE BECAUSE IN ITS PRESENCE, BUT THAT IF IT
TOOK PLACE OUTSIDE THE COURT ROOM OR WHILE THE WITNESS, JUROR OR PARTY
WAS ON HIS WAY TO ATTEND COURT IT WOULD NOT BE PUNISHABLE BECAUSE
GEOGRAPHICAL NEARNESS IS NOT AN ELEMENT IN MAKING THE CONTEMPTUOUS
ACTION AN OBSTRUCTION TO JUSTICE. 

THESE CONTENTIONS ASSUME THAT "SO NEAR THERETO" CAN ONLY REFER TO
GEOGRAPHICAL POSITION AND THEY IGNORE THE ENTIRE HISTORY OF THE
JUDICIAL INTERPRETATION OF THE STATUTE.  "NEAR" MAY CONNOTE PROXIMITY
IN CAUSAL RELATIONSHIP AS WELL AS PROXIMITY IN SPACE, AND UNDER THIS
STATUTE, AS THE OPINION SEEMS TO RECOGNIZE, EVEN THE PROXIMITY TO THE
COURT, IN SPACE, OF THE CONTEMPTUOUS ACTION, IS OF SIGNIFICANCE ONLY IN
ITS CAUSAL RELATIONSHIP TO THE OBSTRUCTIONS TO JUSTICE WHICH RESULT
FROM DISORDER OR PUBLIC DISTURBANCES.  THIS COURT HAS HITHERTO, WITHOUT
A DISSENTING VOICE, REGARDED THE PHRASE "SO NEAR THERETO" AS CONNOTING
AND INCLUDING THOSE CONTEMPTS WHICH ARE THE PROXIMATE CAUSE OF ACTUAL
OBSTRUCTION TO THE ADMINISTRATION OF JUSTICE, WHETHER BECAUSE OF THEIR
PHYSICAL NEARNESS TO THE COURT OR BECAUSE OF A CHAIN OF CAUSATION WHOSE
OPERATION IN PRODUCING THE OBSTRUCTION DEPENDS ON OTHER THAN
GEOGRAPHICAL RELATIONSHIPS TO THE COURT.  SEE SAVIN, PETITIONER, 131
U.S. 267; CUDDY, PETITIONER, 131 U.S. 280; TOLEDO NEWSPAPER CO. V.
UNITED STATES, 247 U.S. 402; SINCLAIR V. UNITED STATES, 279 U.S. 749,
764, 765; CRAIG V. HECHT, 263 U.S. 255.  CF. MCCANN V. NEW YORK STOCK
EXCHANGE, 80 F.2D 211, 213.  CONTEMPTS WHICH OBSTRUCT JUSTICE BECAUSE
OF THEIR EFFECT ON THE GOOD ORDER AND TRANQUILLITY OF THE COURT MUST BE
IN THE PRESENCE OF THE COURT OR GEOGRAPHICALLY NEAR ENOUGH TO HAVE THAT
EFFECT.  CONTEMPTS WHICH ARE SURREPTITIOUS OBSTRUCTIONS TO JUSTICE,
THROUGH TAMPERING WITH WITNESSES, JURORS AND THE LIKE, MUST BE
PROXIMATELY RELATED TO THE CONDEMNED EFFECT.  WE ARE POINTED TO NO
LEGISLATIVE HISTORY WHICH MILITATES AGAINST SUCH A CONSTRUCTION OF THE
STATUTE. 

IN THE SAVIN, THE CRAIG, AND THE SINCLAIR CASES, AS WELL AS IN THE
TOLEDO CASE, THE CONTEMPTS WERE OF THIS LATTER KIND.  THE CONTEMPT HELD
SUMMARILY PUNISHABLE BY THIS COURT IN THE SAVIN CASE, DECIDED SIXTY
YEARS AGO, WAS THE ATTEMPTED BRIBERY OF A WITNESS AT A PLACE IN THE
COURT HOUSE BUT OUTSIDE THE COURTROOM, WITHOUT ANY DISORDER OR
DISTURBANCE OF THE COURT.  THE CONTEMPTUOUS ACTS IN THE OTHER CASES
TOOK PLACE AT POINTS DISTANT FROM THE COURT IN THE CITY WHERE IT SAT. 
IN ALL, THE INJURIOUS EFFECT ON THE ADMINISTRATION OF JUSTICE WAS
UNRELATED TO THE DISTANCE FROM THE COURT.  IN HOLDING THAT THEY WERE
CONTEMPTS WITHIN THE SUMMARY JURISDICTION OF THE COURT THIS COURT
DEFINITELY DECIDED THAT "SO NEAR THERETO" IS NOT CONFINED TO A SPATIAL
APPLICATION WHERE THE EVIL EFFECT OF THE ALLEGED CONTEMPT DOES NOT
DEPEND UPON ITS PHYSICAL NEARNESS TO THE COURT. 

THE SAVIN AND SINCLAIR CASES WERE DECIDED BY A UNANIMOUS COURT.  THE
DISSENTING JUDGES IN THE TOLEDO AND CRAIG CASES, IN WHICH THE ACTS HELD
TO BE CONTEMPTUOUS WERE THE PUBLICATION, AT A DISTANCE FROM THE COURT,
OF COMMENTS DEROGATORY TO THE JUDGE, MADE NO CONTENTION THAT THE PHRASE
IMPOSED A GEOGRAPHICAL LIMITATION ON THE POWER OF THE COURT.  THEIR
POSITION WAS THAT THE PARTICULAR CONTEMPTUOUS ACTS CHARGED DID NOT IN
FACT HAVE THE EFFECT OF OBSTRUCTING JUSTICE, A CONTENTION WHICH CANNOT
BE URGED HERE.  IN THE TOLEDO CASE, JUSTICE HOLMES SAID, PAGE 423:  "I
THINK THAT 'SO NEAR AS TO OBSTRUCT' MEANS SO NEAR AS ACTUALLY TO
OBSTRUCT - AND NOT MERELY NEAR ENOUGH TO THREATEN A POSSIBLE
OBSTRUCTION."  AND IN THE CRAIG CASE, AFTER COMMENTING ON THE FACT THAT
NO CAUSE WAS PENDING BEFORE THE COURT, HE SAID, P. 281:  "SUPPOSE THE
PETITIONER FALSELY AND UNJUSTLY CHARGED THE JUDGE WITH HAVING EXCLUDED
HIM FROM KNOWLEDGE OF THE FACTS, HOW CAN IT BE PRETENDED THAT THE
CHARGE OBSTRUCTED THE ADMINISTRATION OF JUSTICE.  ...  "  COMPLETE
AGREEMENT WITH THE DISSENTS IN THESE CASES NEITHER REQUIRES THE COURT'S
DECISION HERE NOR LENDS IT ANY SUPPORT. 

I DO NOT UNDERSTAND MY BRETHREN TO MAINTAIN THAT THE SECRET BRIBERY
OR INTIMIDATION OF A WITNESS IN THE COURT ROOM MAY NOT BE SUMMARILY
PUNISHED.  CF. SAVIN, SUPRA; SINCLAIR, SUPRA.  IF SO, IT IS ONLY
BECAUSE OF THE EFFECT OF THE CONTEMPTUOUS ACT IN OBSTRUCTING JUSTICE,
WHICH IS PRECISELY THE SAME IF THE BRIBERY OR INTIMIDATION TOOK PLACE
OUTSIDE THE COURT HOUSE.  IF IT MAY BE SO PUNISHED I CAN HARDLY BELIEVE
THAT CONGRESS, BY USE OF THE PHRASE "SO NEAR THERETO," INTENDED TO LAY
DOWN A DIFFERENT RULE IF THE CONTEMPTUOUS ACTS TOOK PLACE ACROSS THE
CORRIDOR, THE STREET, IN ANOTHER BLOCK, OR A MILE AWAY. 

IF THE POINT WERE MORE DOUBTFUL THAN IT SEEMS TO ME, I SHOULD STILL
THINK THAT WE SHOULD LEAVE UNDISTURBED A CONSTRUCTION OF THE STATUTE SO
LONG APPLIED AND NOT HITHERTO DOUBTED IN THIS COURT.  WE RECENTLY
DECLINED TO CONSIDER THE CONTENTION THAT THE SHERMAN ACT CAN NEVER
APPLY TO A LABOR UNION, BECAUSE OF LONG STANDING DECISIONS OF THIS
COURT TO THE CONTRARY, A CONSTRUCTION WHICH CONGRESS HAD NOT SEEN FIT
TO CHANGE.  SEE APEX HOSIERY CO. V. LEADER, 310 U.S. 469, 487, 488. 

IN VIEW OF OUR EARLIER DECISIONS AND OF THE SERIOUS CONSEQUENCES TO
THE ADMINISTRATION OF JUSTICE IF COURTS ARE POWERLESS TO STOP,
SUMMARILY, OBSTRUCTIONS LIKE THE PRESENT, I THINK THE RESPONSIBILITY OF
DEPARTING FROM THE LONG ACCEPTED CONSTRUCTION OF THIS STATUTE SHOULD BE
LEFT TO THE LEGISLATIVE BRANCH OF THE GOVERNMENT, TO WHICH IT
RIGHTFULLY BELONGS. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS CONCUR IN THIS OPINION. 
..END :
















UNITED STATES V. RESLER, 313 U.S. 57 


NO. 616.  ARGUED MARCH 14, 1941.  - DECIDED APRIL 14, 1941.  -
REVERSED. 


1.  SECTION 212(B) OF THE MOTOR CARRIER ACT OF 1935, WHICH SUBJECTS TO
THE RULES AND REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION
TRANSFERS OF CERTIFICATES AND PERMITS, APPLIES TO A TRANSFER OF
OPERATING RIGHTS THOUGH NOT MORE THAN TWENTY MOTOR VEHICLES ARE
INVOLVED, NOTWITHSTANDING THE PROVISION OF SEC. 213(E) THAT "THE
PROVISIONS OF THIS SECTION REQUIRING AUTHORITY FROM THE COMMISSION FOR
CONSOLIDATION, MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR
ACQUISITION OF CONTROL SHALL NOT APPLY WHERE THE TOTAL NUMBER OF MOTOR
VEHICLES INVOLVED IS NOT MORE THAN TWENTY."  P. 59. 

2.  UNDER THE MOTOR CARRIER ACT OF 1935, THE INTERSTATE COMMERCE
COMMISSION HAD AUTHORITY TO PROMULGATE A RULE MAKING APPROVAL BY THE
COMMISSION PREREQUISITE TO AN EFFECTIVE TRANSFER OF OPERATING RIGHTS. 
P. 59. 

UNITED STATES V. RESLER, DOING BUSINESS AS RESLER TRUCK LINE AND AS
BRADY TRUCK LINE. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLORADO. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT SUSTAINING A
SPECIAL PLEA IN BAR TO AN INFORMATION CHARGING VIOLATION OF THE MOTOR
CARRIER ACT OF 1935. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS TWO IMPORTANT QUESTIONS AFFECTING THE
ADMINISTRATION OF THE MOTOR CARRIER ACT OF 1935(49 STAT. 543).  THE
FIRST IS WHETHER SEC. 213(E) PLACES BEYOND REACH OF SEC. 212(B)
TRANSFERS OF OPERATING RIGHTS WHERE NOT MORE THAN TWENTY VEHICLES ARE
INVOLVED.  THE SECOND IS WHETHER THE INTERSTATE COMMERCE COMMISSION
POSSESSED STATUTORY AUTHORITY TO RULE THAT ASSENT OF THE COMMISSION IS
A CONDITION PRECEDENT TO AN EFFECTIVE TRANSFER WHICH IS SUBJECT TO SEC.
212(B). 

IN JULY, 1940, THE UNITED STATES FILED AN INFORMATION AGAINST
APPELLEE CHARGING THAT HE HAD ENGAGED IN INTERSTATE MOTOR CARRIER
OPERATIONS OVER A SPECIFIED ROUTE IN COLORADO WITHOUT A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY REQUIRED BY SEC. 206(A) OF THE MOTOR
CARRIER ACT OF 1935.  APPELLEE FILED A SPECIAL PLEA IN BAR ALLEGING IN
SUBSTANCE THAT HE HAD NOT VIOLATED SEC. 206(A) BECAUSE HE HAD ACQUIRED
THE REQUISITE CERTIFICATE FROM ONE BRADY TO WHOM IT HAD BEEN ISSUED
ORIGINALLY, AND THAT THE APPROVAL OF THE INTERSTATE COMMERCE COMMISSION
WAS NOT NECESSARY TO VALIDATE THAT TRANSFER.  THE DISTRICT COURT
SUSTAINED THIS PLEA, AND THE UNITED STATES APPEALED DIRECTLY TO THIS
COURT, 34 STAT. 1246, 18 U.S.C. SEC. 682.  COUNSEL FOR APPELLANT AND
APPELLEE HAVE STIPULATED THAT NOT MORE THAN TWENTY VEHICLES WERE
INVOLVED IN THE TRANSFER FROM BRADY TO APPELLEE, AND THAT THE
INTERSTATE COMMERCE COMMISSION HAS NOT APPROVED THAT TRANSFER. 

THE TRANSFER IS GOVERNED BY SEC. 212(B).  THAT SECTION PROVIDES:
"EXCEPT AS PROVIDED IN SECTION 213, ANY CERTIFICATE OR PERMIT MAY BE
TRANSFERRED PURSUANT TO SUCH RULES AND REGULATIONS AS THE (INTERSTATE
COMMERCE) COMMISSION MAY PRESCRIBE."  SECTION 213, REGULATING
CONSOLIDATIONS, MERGERS, AND OTHER ACQUISITIONS OF CONTROL OF MOTOR
CARRIERS, PROVIDES IN SUBSECTION (E) THAT "  ...  THE PROVISIONS OF
THIS SECTION REQUIRING AUTHORITY FROM THE COMMISSION FOR CONSOLIDATION,
MERGER, PURCHASE, LEASE, OPERATING CONTRACT, OR ACQUISITION OF CONTROL
SHALL NOT APPLY WHERE THE TOTAL NUMBER OF MOTOR VEHICLES INVOLVED IS
NOT MORE THAN TWENTY." 

THE OBVIOUS SENSE OF SEC. 212(B) COULD HARDLY BE EXPRESSED MORE APTLY
THAN IN THE LANGUAGE QUOTED.  SECTION 213(E) IS EQUALLY EXPLICIT.  READ
TOGETHER, THE TWO SECTIONS CAN MEAN ONLY THAT A TRANSFER INVOLVING NOT
MORE THAN TWENTY VEHICLES IS GOVERNED BY SEC. 212(B) AND THE
REGULATIONS ENACTED PURSUANT TO IT.  THE PHRASE "EXCEPT AS PROVIDED IN
SEC. 213" WAS INTENDED TO REMOVE FROM THE SWEEP OF SEC. 212(B) ONLY
THOSE TRANSFERS WHICH WERE WITHIN THE COMPASS OF SEC. 213.  IT WAS
NEVER INTENDED TO PLACE BEYOND REACH OF SEC. 212(B) THE TRANSFERS WHICH
SEC. 213(E) EXPRESSLY PLACED BEYOND REACH OF SEC. 213. 

NOTWITHSTANDING THE FACT THAT THE INSTANT TRANSFER IS SUBJECT TO SEC.
212(B), APPELLEE CHALLENGES THE COMMISSION'S AUTHORITY TO ENACT RULE
1(D) WHICH PROVIDES:  "NO ATTEMPTED TRANSFER OF ANY OPERATING RIGHT
SHALL BE EFFECTIVE EXCEPT UPON FULL COMPLIANCE WITH THESE RULES AND
REGULATIONS AND UNTIL AFTER THE INTERSTATE COMMERCE COMMISSION HAS
APPROVED SUCH TRANSFER AS HEREIN PROVIDED.  ..."  ORDER OF JULY 1,
1938, 3 FED. REG. 2157. 

POWER TO MAKE RULES REGULATING THE TRANSFERS EMBRACED IN SEC. 212(B)
DERIVES FROM THE PHRASE IN THAT SECTION "PURSUANT TO SUCH RULES AND
REGULATIONS AS THE COMMISSION MAY PRESCRIBE," AND FROM SEC. 204(A)(6)
WHICH MAKES IT THE DUTY OF THE COMMISSION TO ADMINISTER, EXECUTE, AND
ENFORCE ALL PROVISIONS OF (THE MOTOR CARRIER ACT), TO MAKE ALL
NECESSARY ORDERS IN CONNECTION THEREWITH, AND TO PRESCRIBE RULES,
REGULATIONS, AND PROCEDURE FOR SUCH ADMINISTRATION.  ..."  UNDOUBTEDLY
THE POWER TO PRESCRIBE REGULATIONS IS NOT UNLIMITED, BUT NEITHER
RULE THAT PARTIES TO A PROPOSED TRANSFER WHICH IS GOVERNED BY SEC.
212(B) MUST FIRST OBTAIN THE CONSENT OF THE COMMISSION.  INDEED, THE
CONCLUSION IS INESCAPABLE THAT SUCH A RULE IS CLEARLY WITHIN THE
REGULATORY POWER WHICH CONGRESS INTENDED TO CONFER ON THE COMMISSION,
FOR CONGRESS COULD INSURE EFFECTIVE ENFORCEMENT OF OTHER SECTIONS OF
THE ACT ONLY BY GRANTING THE COMMISSION POWER TO ENACT REGULATIONS
BROAD ENOUGH TO AUTHORIZE RULE 1(D). 

REGULATION OF TRANSFERS OF OPERATING RIGHTS BY MERGER, CONSOLIDATION,
OR BY OTHER SPECIFIED MEANS.  SECTION 213(A)(1) EXPRESSLY STIPULATES
THAT THE APPROVAL OF THE COMMISSION MUST PRECEDE A TRANSFER WHICH IS
SUBJECT TO SEC. 213.  MANIFESTLY, THE ADMINISTRATION OF SECS. 213(A)
AND 213(B) WOULD BE SERIOUSLY HAMPERED IF THE COMMISSION WERE POWERLESS
TO MAKE THE SAME REQUIREMENT WITH RESPECT TO TRANSFERS SUBJECT TO SEC.
212(B), PARTICULARLY SINCE THE NUMBER OF VEHICLES INVOLVED MAY
DETERMINE WHICH SECTION IS APPLICABLE. 

IN MANY RESPECTS A TRANSFEREE SUCH AS APPELLEE STANDS IN THE SAME
RELATION TO THE COMMISSION AS AN ORIGINAL APPLICANT FOR PERMISSION TO
OPERATE.  MANY INQUIRIES WHICH ARE RELEVANT TO THE INITIAL APPLICATION
ARE EQUALLY RELEVANT TO THE PROPOSED TRANSFER.  SECTION 206(A), WITH
IMMATERIAL EXCEPTIONS, PERMITS COMMON CARRIERS BY MOTOR VEHICLES TO
OPERATE ONLY IF THE CARRIER HAS FIRST OBTAINED A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY.  SECTION 207(A) EXPRESSLY CONDITIONS
ISSUANCE OF THE CERTIFICATE ON FINDINGS BY THE COMMISSION THAT THE
APPLICANT IS "FIT, WILLING, AND ABLE PROPERLY TO PERFORM THE SERVICE
PROPOSED AND TO CONFORM TO THE PROVISIONS OF (THE MOTOR CARRIER ACT)
AND THE REQUIREMENTS, RULES, AND REGULATIONS OF THE COMMISSION
THEREUNDER, AND THAT THE PROPOSED SERVICE, TO THE EXTENT TO BE
AUTHORIZED BY THE CERTIFICATE, IS OR WILL BE REQUIRED BY THE PRESENT OR
FUTURE PUBLIC CONVENIENCE AND NECESSITY."  PLAINLY THE FINDING OF THE
REQUISITE FITNESS, WILLINGNESS, AND ABILITY OF THE FIRST APPLICANT IS
WHOLLY INAPPLICABLE TO HIS PROPOSED TRANSFEREE (SEE RULE 2(C), 3 FED.
REG. 2158), AND THE OPERATIONS INCEPTIVELY AUTHORIZED NO LONGER MAY
SERVE PUBLIC CONVENIENCE AND NECESSITY BECAUSE CONDITIONS HAVE
CHANGED.  SEE RULE 6, 3 FED. REG. 2158; COMPARE SECS. 208(A), 212(A). 
IT IS EVIDENT THAT FULL ENFORCEMENT OF SECS. 206(A) AND 207(A) LIKEWISE
WOULD BE IMPEDED IF THE COMMISSION LACKED POWER TO RULE THAT ITS
CONSENT MUST PRECEDE A TRANSFER SUBJECT TO SEC. 212(B).  FN1 

WE CONCLUDE THAT THE COMMISSION ACTED WITHIN ITS AUTHORITY TO
PRESCRIBE RULES AND REGULATIONS TO IMPLEMENT SEC. 212(B) IN RULING THAT
ITS CONSENT WAS A CONDITION PRECEDENT TO AN EFFECTIVE TRANSFER GOVERNED
BY THAT SECTION.  IT WAS NOT COMPELLED TO CONTEST THE LEGALITY OR
PROPRIETY OF SUCH A TRANSFER AFTER IT HAD BEEN COMPLETED. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS.  REVERSED. 

FN1  ABSENT SUCH POWER, THE COMMISSION WOULD ENCOUNTER SIMILAR
DIFFICULTIES IN THE ADMINISTRATION OF OTHER SECTIONS.  SECTION 215
REQUIRES THE COMMISSION TO WITHHOLD A CERTIFICATE UNTIL THE CARRIER HAS
COMPLIED WITH COMMISSION REGULATIONS EXACTING SECURITY FOR DAMAGE TO
PERSONS AND PROPERTY.  SECTION 217 COMPELS SPECIFIED CARRIERS TO FILE
TARIFF SCHEDULES.  SECTION 221 OBLIGATES MOTOR CARRIERS TO FILE WRITTEN
DESIGNATIONS OF AGENTS FOR SERVICE OF PROCESS AND COMMISSION ORDERS. 

SEE ALSO SECS. 220, 223. 
..END :








COX V. NEW HAMPSHIRE, 312 U.S. 569 


NO. 502.  ARGUED MARCH 7, 1941.  - DECIDED MARCH 31, 1941.  - 91 N.H.
137 - 16 A.2D 508, AFFIRMED. 


1.  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.  P. 574. 

2.  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.  P. 574. 

3.  AS REGULATION OF THE USE OF THE STREETS FOR PARADES AND
PROCESSIONS IS A TRADITIONAL EXERCISE OF CONTROL BY LOCAL GOVERNMENT,
THE QUESTION IN A PARTICULAR CASE IS WHETHER THAT CONTROL IS EXERTED SO
AS NOT TO DENY OR UNWARRANTEDLY ABRIDGE THE RIGHT OF ASSEMBLY AND THE
OPPORTUNITIES FOR THE COMMUNICATION OF THOUGHT AND THE DISCUSSION OF
PUBLIC QUESTIONS IMMEMORIALLY ASSOCIATED WITH RESORT TO PUBLIC PLACES. 
P. 574. 

4.  A STATE LAW PROVIDING THAT NO PARADE OR PROCESSION UPON ANY
PUBLIC STREET SHALL BE PERMITTED UNLESS A SPECIAL LICENSE THEREFOR
SHALL FIRST BE OBTAINED FROM THE SELECTMEN OF THE TOWN, OR FROM A
LICENSING COMMITTEE FOR THE CITY, AND SUBJECTING ANY VIOLATOR TO A
FINE, HELD CONSTITUTIONAL, IN VIEW OF ITS CONSTRUCTION BY THE STATE
SUPREME COURT, AS APPLIED TO MEMBERS OF THE BAND OF "JEHOVAH'S
WITNESSES," WHO MARCHED IN GROUPS OF FROM FIFTEEN TO TWENTY MEMBERS
EACH, IN CLOSE SINGLE FILES, ALONG THE SIDEWALKS IN THE BUSINESS
DISTRICT OF A POPULOUS CITY, EACH MARCHER CARRYING A SIGN OR PLACARD
WITH "INFORMATIONAL" INSCRIPTIONS.  P. 575. 

5.  IN EXERCISE OF ITS POWER TO LICENSE PARADES ON CITY STREETS, THE
STATE MAY CHARGE A LICENSE FEE REASONABLY ADJUSTED TO THE OCCASION, FOR
MEETING ADMINISTRATIVE AND POLICE EXPENSES.  P. 576. 

COX ET AL. V. NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

APPEAL FROM THE AFFIRMANCE OF JUDGMENTS IMPOSING FINES ON VIOLATORS
OF A STATE LAW REGULATING PARADES IN CITY STREETS. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE FIVE "JEHOVAH'S WITNESSES" WHO, WITH SIXTY-THREE
OTHERS OF THE SAME PERSUASION, WERE CONVICTED IN THE MUNICIPAL COURT OF
MANCHESTER, NEW HAMPSHIRE, FOR VIOLATION OF A STATE STATUTE PROHIBITING
A "PARADE OR PROCESSION" UPON A PUBLIC STREET WITHOUT A SPECIAL
LICENSE. 

UPON APPEAL, THERE WAS A TRIAL DE NOVO OF THESE APPELLANTS BEFORE A
JURY IN THE SUPERIOR COURT, THE OTHER DEFENDANTS HAVING AGREED TO ABIDE
BY THE FINAL DECISION IN THAT PROCEEDING.  APPELLANTS WERE FOUND GUILTY
AND THE JUDGMENT OF CONVICTION WAS AFFIRMED BY THE SUPREME COURT OF THE
STATE.  STATE V. COX, 91 N.H. 137; 16 A.2D 508. 

BY MOTIONS AND EXCEPTIONS, APPELLANTS RAISED THE QUESTIONS THAT THE
STATUTE WAS INVALID UNDER THE FOURTEENTH AMENDMENT OF THE CONSTITUTION
OF THE UNITED STATES IN THAT IT DEPRIVED APPELLANTS OF THEIR RIGHTS OF
FREEDOM OF WORSHIP, FREEDOM OF SPEECH AND PRESS, AND FREEDOM OF
ASSEMBLY, VESTED UNREASONABLE AND UNLIMITED ARBITRARY AND
DISCRIMINATORY POWERS IN THE LICENSING AUTHORITY, AND WAS VAGUE AND
INDEFINITE.  THESE CONTENTIONS WERE OVERRULED AND THE CASE COMES HERE
ON APPEAL. 

THE STATUTORY PROHIBITION IS AS FOLLOWS (NEW HAMPSHIRE, P.L., CHAP.
145, SEC. 2): 

"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 SPECIAL LICENSE THEREFOR SHALL FIRST BE OBTAINED
FROM THE SELECTMEN OF THE TOWN, OR FROM A LICENSING COMMITTEE FOR
CITIES HEREINAFTER PROVIDED FOR." 

THE PROVISIONS FOR LICENSING ARE SET FORTH IN THE MARGIN.  FN1 

THE FACTS, WHICH ARE CONCEDED BY THE APPELLANT TO BE ESTABLISHED BY
THE EVIDENCE, ARE THESE: THE SIXTY-EIGHT DEFENDANTS AND TWENTY OTHER
PERSONS MET AT A HALL IN THE CITY OF MANCHESTER ON THE EVENING OF
SATURDAY, JULY 8, 1939, "FOR THE PURPOSE OF ENGAGING IN AN INFORMATION
MARCH."  THE COMPANY WAS DIVIDED INTO FOUR OR FIVE GROUPS, EACH WITH
ABOUT FIFTEEN TO TWENTY PERSONS.  EACH GROUP THEN PROCEEDED TO A
DIFFERENT PART OF THE BUSINESS DISTRICT OF THE CITY AND THERE "WOULD
LINE UP IN SINGLE-FILE FORMATION AND THEN PROCEED TO MARCH ALONG THE
SIDEWALK, 'SINGLE-FILE,' THAT IS, FOLLOWING ONE ANOTHER."  EACH OF THE
DEFENDANTS CARRIED A SMALL STAFF WITH A SIGN READING "RELIGION IS A
SNARE AND A RACKET" AND ON THE REVERSE "SERVE GOD AND CHRIST THE
KING."  SOME OF THE MARCHERS CARRIED PLACARDS BEARING THE STATEMENT
"FASCISM OR FREEDOM.  HEAR JUDGE RUTHERFORD AND FACE THE FACTS."  THE
MARCHERS ALSO HANDED OUT PRINTED LEAFLETS ANNOUNCING A MEETING TO BE
HELD AT A LATER TIME IN THE HALL FROM WHICH THEY HAD STARTED, WHERE A
TALK ON GOVERNMENT WOULD BE GIVEN TO THE PUBLIC FREE OF CHARGE. 
DEFENDANTS DID NOT APPLY FOR A PERMIT AND NONE WAS ISSUED. 

THERE WAS A DISPUTE IN THE EVIDENCE AS TO THE DISTANCE BETWEEN THE
MARCHERS.  DEFENDANTS SAID THAT THEY WERE FROM FIFTEEN TO TWENTY FEET
APART.  THE STATE INSISTS THAT THE EVIDENCE CLEARLY SHOWED THAT THE
"MARCHERS WERE AS CLOSE TOGETHER AS IT WAS POSSIBLE FOR THEM TO WALK." 
APPELLANTS CONCEDE THAT THIS DISPUTE IS NOT MATERIAL TO THE QUESTIONS
PRESENTED.  THE RECITAL OF FACTS WHICH PREFACED THE OPINION OF THE
STATE COURT THUS SUMMARIZES THE EFFECT OF THE MARCH:  "MANCHESTER HAD A
POPULATION OF OVER 75,000 IN 1930, AND THERE WAS TESTIMONY THAT ON
SATURDAY NIGHTS IN AN HOUR'S TIME 26,000 PERSONS PASSED ONE OF THE
INTERSECTIONS WHERE THE DEFENDANTS MARCHED.  THE MARCHERS INTERFERED
WITH THE NORMAL SIDEWALK TRAVEL, BUT NO TECHNICAL BREACH OF THE PEACE
OCCURRED.  THE MARCH WAS A PREARRANGED AFFAIR, AND NO PERMIT FOR IT WAS
SOUGHT, ALTHOUGH THE DEFENDANTS UNDERSTOOD THAT UNDER THE STATUTE ONE
WAS REQUIRED." 

APPELLANTS URGE THAT EACH OF THE DEFENDANTS WAS A MINISTER ORDAINED
TO PREACH THE GOSPEL IN ACCORDANCE WITH HIS BELIEF AND THAT THE
PARTICIPATION OF THESE MINISTERS IN THE MARCH WAS FOR THE PURPOSE OF
DISSEMINATING INFORMATION IN THE PUBLIC INTEREST AND WAS ONE OF THEIR
WAYS OF WORSHIP. 

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. 

THERE APPEARS TO BE NO GROUND FOR CHALLENGING THE RULING OF THE STATE
COURT THAT APPELLANTS WERE IN FACT ENGAGED IN A PARADE OR PROCESSION
UPON THE PUBLIC STREETS.  AS THE STATE COURT OBSERVED: "IT WAS A MARCH
IN FORMATION, AND ITS ADVERTISING AND INFORMATORY PURPOSE DID NOT MAKE
IT OTHERWISE.  ...  IT IS IMMATERIAL THAT ITS TACTICS WERE FEW AND
SIMPLE.  IT IS ENOUGH THAT IT PROCEEDED IN AN ORDERED AND CLOSE FILE AS
A COLLECTIVE BODY OF PERSONS ON THE CITY STREETS." 

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.  AS REGULATION OF THE USE OF THE STREETS
FOR PARADES AND PROCESSIONS IS A TRADITIONAL EXERCISE OF CONTROL BY
LOCAL GOVERNMENT, THE QUESTION IN A PARTICULAR CASE IS WHETHER THAT
CONTROL IS EXERTED SO AS NOT TO DENY OR UNWARRANTEDLY ABRIDGE THE RIGHT
OF ASSEMBLY AND THE OPPORTUNITIES FOR THE COMMUNICATION OF THOUGHT AND
THE DISCUSSION OF PUBLIC QUESTIONS IMMEMORIALLY ASSOCIATED WITH RESORT
TO PUBLIC PLACES.  LOVELL V. GRIFFIN, 303 U.S. 444, 451; HAGUE V.
COMMITTEE FOR INDUSTRIAL ORGANIZATION, 307 U.S. 496, 515, 516;
SCHNEIDER V. STATE, 308 U.S. 147, 160; CANTWELL V. CONNECTICUT, 310
U.S. 296, 306, 307. 

IN THE INSTANT CASE, WE ARE AIDED BY THE OPINION OF THE SUPREME COURT
OF THE STATE, WHICH CONSTRUED THE STATUTE AND DEFINED THE LIMITATIONS
OF THE AUTHORITY CONFERRED FOR THE GRANTING OF LICENSES FOR PARADES AND
PROCESSIONS.  THE COURT OBSERVED THAT IF THE CLAUSE OF THE ACT
REQUIRING A LICENSE "FOR ALL OPEN-AIR PUBLIC MEETINGS UPON LAND
CONTIGUOUS TO A HIGHWAY" WAS INVALID, THAT INVALIDITY DID NOT NULLIFY
THE ACT IN ITS APPLICATION TO THE OTHER SITUATIONS DESCRIBED. 
RECOGNIZING THE IMPORTANCE OF THE CIVIL LIBERTIES INVOKED BY
APPELLANTS, THE COURT THOUGHT IT SIGNIFICANT THAT THE STATUTE
PRESCRIBED "NO MEASURES FOR CONTROLLING OR SUPPRESSING THE PUBLICATION
ON THE HIGHWAYS OF FACTS AND OPINIONS, EITHER BY SPEECH OR BY WRITING";
THAT COMMUNICATION "BY THE DISTRIBUTION OF LITERATURE OR BY THE DISPLAY
OF PLACARDS AND SIGNS" WAS IN NO RESPECT REGULATED BY THE STATUTE; THAT
THE REGULATION WITH RESPECT TO PARADES AND PROCESSIONS WAS APPLICABLE
ONLY "TO ORGANIZED FORMATIONS OF PERSONS USING THE HIGHWAYS"; AND THAT
"THE DEFENDANTS, SEPARATELY, OR COLLECTIVELY IN GROUPS NOT CONSTITUTING
A PARADE OR PROCESSION," WERE "UNDER NO CONTEMPLATION OF THE ACT."  IN
THIS LIGHT, THE COURT THOUGHT THAT INTERFERENCE WITH LIBERTY OF SPEECH
AND WRITING SEEMED SLIGHT; THAT THE DISTRIBUTION OF PAMPHLETS AND
FOLDERS BY THE GROUPS "TRAVELING IN UNORGANIZED FASHION" WOULD HAVE HAD
AS LARGE A CIRCULATION, AND THAT "SIGNS CARRIED BY MEMBERS OF THE
GROUPS NOT IN MARCHING FORMATION WOULD HAVE BEEN AS CONSPICUOUS, AS
PUBLISHED BY THEM WHILE IN PARADE OR PROCESSION." 

IT WAS WITH THIS VIEW OF THE LIMITED OBJECTIVE OF THE STATUTE THAT
THE STATE COURT CONSIDERED AND DEFINED THE DUTY OF THE LICENSING
AUTHORITY AND THE RIGHTS OF THE APPELLANTS TO A LICENSE FOR THEIR
PARADE, WITH REGARD ONLY TO CONSIDERATIONS OF TIME, PLACE AND MANNER SO
AS TO CONSERVE THE PUBLIC CONVENIENCE.  THE OBVIOUS ADVANTAGE OF
REQUIRING APPLICATION FOR A PERMIT WAS NOTED AS GIVING THE PUBLIC
AUTHORITIES NOTICE IN ADVANCE SO AS TO AFFORD OPPORTUNITY FOR PROPER
POLICING.  AND THE COURT FURTHER OBSERVED THAT, IN FIXING TIME AND
PLACE, THE LICENSE SERVED "TO PREVENT CONFUSION BY OVERLAPPING PARADES
OR PROCESSIONS, TO SECURE CONVENIENT USE OF THE STREETS BY OTHER
TRAVELERS, AND TO MINIMIZE THE RISK OF DISORDER."  BUT THE COURT HELD
THAT THE LICENSING BOARD WAS NOT VESTED WITH ARBITRARY POWER OR AN
UNFETTERED DISCRETION; THAT ITS DISCRETION MUST BE EXERCISED WITH
"UNIFORMITY OF METHOD OF TREATMENT UPON THE FACTS OF EACH APPLICATION,
FREE FROM IMPROPER OR INAPPROPRIATE CONSIDERATIONS AND FROM UNFAIR
DISCRIMINATION"; THAT A "SYSTEMATIC, CONSISTENT AND JUST ORDER OF
TREATMENT, WITH REFERENCE TO THE CONVENIENCE OF PUBLIC USE OF THE
HIGHWAYS, IS THE STATUTORY MANDATE."  THE DEFENDANTS, SAID THE COURT,
"HAD A RIGHT, UNDER THE ACT, TO A LICENSE TO MARCH WHEN, WHERE AND AS
THEY DID, IF AFTER A REQUIRED INVESTIGATION IT WAS FOUND THAT THE
CONVENIENCE OF THE PUBLIC IN THE USE OF THE STREETS WOULD NOT THEREBY
BE UNDULY DISTURBED, UPON SUCH CONDITIONS OR CHANGES IN TIME, PLACE AND
MANNER AS WOULD AVOID DISTURBANCE." 

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 ANY CONSTITUTIONAL
RIGHT. 

THERE REMAINS THE QUESTION OF LICENSE FEES WHICH, AS THE COURT SAID,
HAD A PERMISSIBLE RANGE FROM $300 TO A NOMINAL AMOUNT.  THE COURT
CONSTRUED THE ACT AS REQUIRING "A REASONABLE FIXING OF THE AMOUNT OF
THE FEE."  "THE CHARGE," SAID THE COURT, "FOR A CIRCUS PARADE OR A
CELEBRATION PROCESSION OF LENGTH, EACH DRAWING CROWDS OF OBSERVERS,
WOULD TAKE INTO ACCOUNT THE GREATER PUBLIC EXPENSE OF POLICING THE
SPECTACLE, COMPARED WITH THE SLIGHT EXPENSE OF A LESS EXPANSIVE AND
ATTRACTIVE PARADE OR PROCESSION, TO WHICH THE CHARGE WOULD BE
ADJUSTED."  THE FEE WAS HELD TO BE "NOT A REVENUE TAX, BUT ONE TO MEET
THE EXPENSE INCIDENT TO THE ADMINISTRATION OF THE ACT AND TO THE
MAINTENANCE OF PUBLIC ORDER IN THE MATTER LICENSED."  THERE IS NOTHING
CONTRARY TO THE CONSTITUTION IN THE CHARGE OF A FEE LIMITED TO THE
PURPOSE STATED.  THE SUGGESTION THAT A FLAT FEE SHOULD HAVE BEEN
CHARGED FAILS TO TAKE ACCOUNT OF THE DIFFICULTY OF FRAMING A FAIR
SCHEDULE TO MEET ALL CIRCUMSTANCES, AND WE PERCEIVE NO CONSTITUTIONAL
GROUND FOR DENYING TO LOCAL GOVERNMENTS THAT FLEXIBILITY OF ADJUSTMENT
OF FEES WHICH IN THE LIGHT OF VARYING CONDITIONS WOULD TEND TO CONSERVE
RATHER THAN IMPAIR THE LIBERTY SOUGHT. 

THERE IS NO EVIDENCE THAT THE STATUTE HAS BEEN ADMINISTERED OTHERWISE
THAN IN THE FAIR AND NON-DISCRIMINATORY MANNER WHICH THE STATE COURT
HAS CONSTRUED IT TO REQUIRE. 

THE DECISIONS UPON WHICH APPELLANTS RELY ARE NOT APPLICABLE.  IN
LOVELL V. GRIFFIN, SUPRA, THE ORDINANCE PROHIBITED THE DISTRIBUTION OF
LITERATURE OF ANY KIND AT ANY TIME, AT ANY PLACE, AND IN ANY MANNER
WITHOUT A PERMIT FROM THE CITY MANAGER, THUS STRIKING AT THE VERY
FOUNDATION OF THE FREEDOM OF THE PRESS BY SUBJECTING IT TO LICENSE AND
CENSORSHIP.  IN HAGUE V. COMMITTEE FOR INDUSTRIAL ORGANIZATION, SUPRA,
THE ORDINANCE DEALT WITH THE EXERCISE OF THE RIGHT OF ASSEMBLY FOR THE
PURPOSE OF COMMUNICATING VIEWS; IT DID NOT MAKE COMFORT OR CONVENIENCE
IN THE USE OF STREETS THE STANDARD OF OFFICIAL ACTION BUT ENABLED THE
LOCAL OFFICIAL ABSOLUTELY TO REFUSE A PERMIT ON HIS MERE OPINION THAT
SUCH REFUSAL WOULD PREVENT "RIOTS, DISTURBANCES OR DISORDERLY
ASSEMBLAGE."  THE ORDINANCE THUS CREATED, AS THE RECORD DISCLOSED, AN
INSTRUMENT OF ARBITRARY SUPPRESSION OF OPINIONS ON PUBLIC QUESTIONS. 
THE COURT SAID THAT "UNCONTROLLED OFFICIAL SUPPRESSION OF THE PRIVILEGE
CANNOT BE MADE A SUBSTITUTE FOR THE DUTY TO MAINTAIN ORDER IN
CONNECTION WITH THE EXERCISE OF THE RIGHT."  IN SCHNEIDER V. STATE,
SUPRA (P. 163) THE ORDINANCE WAS DIRECTED AT CANVASSING AND BANNED
UNLICENSED COMMUNICATION OF ANY VIEWS, OR THE ADVOCACY OF ANY CAUSE,
FROM DOOR TO DOOR, SUBJECT ONLY TO THE POWER OF A POLICE OFFICER TO
DETERMINE AS A CENSOR WHAT LITERATURE MIGHT BE DISTRIBUTED AND WHO
MIGHT DISTRIBUTE IT.  IN CANTWELL V. CONNECTICUT, SUPRA (P. 305) THE
STATUTE DEALT WITH THE SOLICITATION OF FUNDS FOR RELIGIOUS CAUSES AND
AUTHORIZED AN OFFICIAL TO DETERMINE WHETHER THE CAUSE WAS A RELIGIOUS
ONE AND TO REFUSE A PERMIT IF HE DETERMINED IT WAS NOT, THUS
ESTABLISHING A CENSORSHIP OF RELIGION.    NOR IS ANY QUESTION OF
PEACEFUL PICKETING HERE INVOLVED, AS IN THORNHILL V. ALABAMA, 310 U.S.
88, AND CARLSON V. CALIFORNIA, 310 U.S. 106.  THE STATUTE, AS THE STATE
COURT SAID, IS NOT AIMED AT ANY RESTRAINT OF FREEDOM OF SPEECH, AND
THERE IS NO BASIS FOR AN ASSUMPTION THAT IT WOULD BE APPLIED SO AS TO
PREVENT PEACEFUL PICKETING AS DESCRIBED IN THE CASES CITED. 

THE ARGUMENT AS TO FREEDOM OF WORSHIP IS ALSO BESIDE THE POINT.  NO
INTERFERENCE WITH RELIGIOUS WORSHIP OR THE PRACTICE OF RELIGION IN ANY
PROPER SENSE IS SHOWN, BUT ONLY THE EXERCISE OF LOCAL CONTROL OVER THE
USE OF STREETS FOR PARADES AND PROCESSIONS. 

THE JUDGMENT OF THE SUPREME COURT OF NEW HAMPSHIRE AFFIRMED. 

FN1  NEW HAMPSHIRE, P.L., CHAP. 145, SECS. 3, 4, AND 5 ARE AS
FOLLOWS: 

"SECTION 3:  LICENSING BOARD.  ANY CITY MAY CREATE A LICENSING BOARD
TO CONSIST OF THE PERSON WHO IS THE ACTIVE HEAD OF THE POLICE
DEPARTMENT, THE MAYOR OF SUCH CITY AND ONE OTHER PERSON WHO SHALL BE
APPOINTED BY THE CITY GOVERNMENT, WHICH BOARD SHALL HAVE DELEGATED
POWERS TO INVESTIGATE AND DECIDE THE QUESTION OF GRANTING LICENSES
UNDER THIS CHAPTER, AND IT MAY GRANT REVOCABLE BLANKET LICENSES TO
FRATERNAL AND OTHER LIKE ORGANIZATIONS, TO THEATRES AND TO
UNDERTAKERS. 

"SECTION 4:  LICENSES:  FEES.  EVERY SUCH SPECIAL 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. 
EVERY LICENSEE SHALL PAY IN ADVANCE FOR SUCH LICENSE, FOR THE USE OF
THE CITY OR TOWN, A SUM 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 5:  PENALTY.  IF ANY PERSON SHALL VIOLATE THE PROVISIONS OF
THE PRECEDING SECTIONS HE SHALL BE FINED NOT MORE THAN FIVE HUNDRED
DOLLARS; AND IT SHALL BE THE DUTY OF THE SELECTMEN TO PROSECUTE FOR
EVERY VIOLATION OF THIS CHAPTER." 
..END :






HARRISON V. SCHAFFNER, 312 U.S. 579 


NO. 437.  ARGUED MARCH 4, 1941.  - DECIDED MARCH 31, 1941.  - 113 F.2D
449, REVERSED. 


THE LIFE BENEFICIARY OF A TRUST ASSIGNED TO HER CHILDREN SPECIFIED
AMOUNTS IN DOLLARS FROM THE INCOME OF THE TRUST FOR THE YEAR FOLLOWING
THE ASSIGNMENT.  HELD THAT THE AMOUNT ASSIGNED, WHICH WAS PAID BY THE
TRUSTEES TO THE ASSIGNEES, WAS TAXABLE AS INCOME TO THE ASSIGNOR. 
REVENUE ACT, 1928, SECS. 22(A), 161(A), 162(B).  P. 582. 

HARRISON, COLLECTOR OF INTERNAL REVENUE, V. SCHAFFNER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 311 U.S. 638, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE ABOVE-NAMED RESPONDENT IN A SUIT TO RECOVER MONEY EXACTED AS
TAXES. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN DECEMBER, 1929, RESPONDENT, THE LIFE BENEFICIARY OF A TESTAMENTARY
TRUST, "ASSIGNED" TO CERTAIN OF HER CHILDREN SPECIFIED AMOUNTS IN
DOLLARS FROM THE INCOME OF THE TRUST FOR THE YEAR FOLLOWING THE
ASSIGNMENT.  SHE MADE A LIKE ASSIGNMENT TO HER CHILDREN AND A SON-IN
LAW IN NOVEMBER, 1930.  THE QUESTION FOR DECISION IS WHETHER, UNDER THE
APPLICABLE 1928 REVENUE ACT, 45 STAT. 791, THE ASSIGNED INCOME, WHICH
WAS PAID BY THE TRUSTEES TO THE SEVERAL ASSIGNEES, IS TAXABLE AS SUCH
TO THE ASSIGNOR OR TO THE ASSIGNEES. 

THE COMMISSIONER RULED THAT THE INCOME WAS THAT OF THE LIFE
BENEFICIARY AND ASSESSED A DEFICIENCY AGAINST HER FOR THE CALENDAR
YEARS 1930 AND 1931, WHICH SHE PAID.  IN THE PRESENT SUIT TO RECOVER
THE TAX PAID AS ILLEGALLY EXACTED THE DISTRICT COURT BELOW GAVE
JUDGMENT FOR THE TAXPAYER, WHICH THE COURT OF APPEALS AFFIRMED.  113
F.2D 449.  WE GRANTED CERTIORARI, 311 U.S. 638, TO RESOLVE AN ALLEGED
CONFLICT IN PRINCIPLE OF THE DECISION BELOW WITH THOSE IN LUCAS V.
EARL, 281 U.S. 111; BURNET V. LEININGER, 285 U.S. 136, AND HELVERING V.
CLIFFORD, 309 U.S. 331. 

SINCE GRANTING CERTIORARI WE HAVE HELD, FOLLOWING THE REASONING OF
LUCAS V. EARL, SUPRA, THAT ONE WHO IS ENTITLED TO RECEIVE, AT A FUTURE
DATE, INTEREST OR COMPENSATION FOR SERVICES AND WHO MAKES A GIFT OF IT
BY AN ANTICIPATORY ASSIGNMENT, REALIZES TAXABLE INCOME QUITE AS MUCH AS
IF HE HAD COLLECTED THE INCOME AND PAID IT OVER TO THE OBJECT OF HIS
BOUNTY.  HELVERING V. HORST, 311 U.S. 112; HELVERING V. EUBANK, 311
U.S. 122.  DECISION IN THESE CASES WAS RESTED ON THE PRINCIPLE THAT THE
POWER TO DISPOSE OF INCOME IS THE EQUIVALENT OF OWNERSHIP OF IT AND
THAT THE EXERCISE OF THE POWER TO PROCURE ITS PAYMENT TO ANOTHER,
WHETHER TO PAY A DEBT OR TO MAKE A GIFT, IS WITHIN THE REACH OF THE
STATUTE TAXING INCOME "DERIVED FROM ANY SOURCE WHATEVER."  IN THE LIGHT
OF OUR OPINIONS IN THESE CASES THE NARROW QUESTION PRESENTED BY THIS
RECORD IS WHETHER IT MAKES ANY DIFFERENCE IN THE APPLICATION OF THE
TAXING STATUTE THAT THE GIFT IS ACCOMPLISHED BY THE ANTICIPATORY
ASSIGNMENT OF TRUST INCOME RATHER THAN OF INTEREST, DIVIDENDS, RENTS
AND THE LIKE WHICH ARE PAYABLE TO THE DONOR. 

RESPONDENT, RECOGNIZING THAT THE PRACTICAL CONSEQUENCES OF A GIFT BY
ASSIGNMENT, IN ADVANCE, OF A YEAR'S INCOME FROM THE TRUST, ARE, SO FAR
AS THE USE AND ENJOYMENT OF THE INCOME ARE CONCERNED, NO DIFFERENT FROM
THOSE OF THE GIFT BY ASSIGNMENT OF INTEREST OR WAGES, RESTS HIS CASE ON
TECHNICAL DISTINCTIONS AFFECTING THE CONVEYANCING OF EQUITABLE
INTERESTS.  IT IS SAID THAT SINCE BY THE ASSIGNMENT OF TRUST INCOME THE
ASSIGNEE ACQUIRES AN EQUITABLE RIGHT TO AN ACCOUNTING BY THE TRUSTEE
WHICH, FOR MANY PURPOSES, IS TREATED BY COURTS OF EQUITY AS A PRESENT
EQUITABLE ESTATE IN THE TRUST PROPERTY, IT FOLLOWS THAT EACH ASSIGNEE
IN THE PRESENT CASE IS A DONEE OF AN INTEREST IN THE TRUST PROPERTY FOR
THE TERM OF A YEAR AND IS THUS THE RECIPIENT OF INCOME FROM HIS OWN
PROPERTY WHICH IS TAXABLE TO HIM RATHER THAN TO THE DONOR.  SEE BLAIR
V. COMMISSIONER, 300 U.S. 5. 

WE LAY TO ONE SIDE THE ARGUMENT WHICH THE GOVERNMENT COULD HAVE MADE
THAT THE ASSIGNMENTS WERE NO MORE THAN AN ATTEMPT TO CHARGE THE
SPECIFIED PAYMENTS UPON THE WHOLE INCOME WHICH COULD PASS NO PRESENT
INTEREST IN THE TRUST PROPERTY.  SEE SCOTT ON TRUSTS, SECS. 10.1, 10.6,
29, 30.  FOR WE THINK THAT THE OPERATION OF THE STATUTES TAXING INCOME
IS NOT DEPENDENT UPON SUCH "ATTENUATED SUBTLETIES," BUT RATHER ON THE
IMPORT AND REASONABLE CONSTRUCTION OF THE TAXING ACT.  LUCAS V. EARL,
SUPRA, 114. 

INCLUDES GAINS, PROFITS, AND INCOME DERIVED FROM  ...  INTEREST, RENT,
DIVIDENDS, SECURITIES OR THE TRANSACTIONS OF ANY BUSINESS CARRIED ON
FOR GAIN OR PROFIT, OR GAINS OR PROFITS, AND INCOME DERIVED FROM ANY
SOURCE WHATEVER."  BY SECS. 161(A) AND 162(B) THE TAX IS LAID UPON THE
INCOME "OF ANY KIND OF PROPERTY HELD IN TRUST," AND INCOME OF A TRUST
FOR THE TAXABLE YEAR WHICH IS TO BE DISTRIBUTED TO THE BENEFICIARIES IS
TO BE TAXED TO THEM "WHETHER DISTRIBUTED TO THEM OR NOT."  IN
CONSTRUING THESE AND LIKE PROVISIONS IN OTHER REVENUE ACTS WE HAVE
UNIFORMLY HELD THAT THEY ARE NOT SO MUCH CONCERNED WITH THE REFINEMENTS
OF TITLE AS WITH THE ACTUAL COMMAND OVER THE INCOME WHICH IS TAXED AND
THE ACTUAL BENEFIT FOR WHICH THE TAX IS PAID.  SEE CORLISS V. BOWERS,
281 U.S. 376; LUCAS V. EARL, SUPRA; HELVERING V. HORST, SUPRA;
HELVERING V. EUBANK, SUPRA; HELVERING V. CLIFFORD, SUPRA.  IT WAS FOR
THAT REASON THAT IN EACH OF THOSE CASES IT WAS HELD THAT ONE VESTED
WITH THE RIGHT TO RECEIVE INCOME DID NOT ESCAPE THE TAX BY ANY KIND OF
ANTICIPATORY ARRANGEMENT, HOWEVER SKILLFULLY DEVISED, BY WHICH HE
PROCURES PAYMENT OF IT TO ANOTHER, SINCE, BY THE EXERCISE OF HIS POWER
TO COMMAND THE INCOME, HE ENJOYS THE BENEFIT OF THE INCOME ON WHICH THE
TAX IS LAID. 

THOSE DECISIONS ARE CONTROLLING HERE.  TAXATION IS A PRACTICAL MATTER
AND THOSE PRACTICAL CONSIDERATIONS WHICH SUPPORT THE TREATMENT OF THE
DISPOSITION OF ONE'S INCOME BY WAY OF GIFT AS A REALIZATION OF THE
INCOME TO THE DONOR ARE THE SAME WHETHER THE INCOME BE FROM A TRUST OR
FROM SHARES OF STOCK OR BONDS WHICH HE OWNS.  IT IS TRUE, AS RESPONDENT
ARGUES, THAT WHERE THE BENEFICIARY OF A TRUST HAD ASSIGNED A SHARE OF
THE INCOME TO ANOTHER FOR LIFE WITHOUT RETAINING ANY FORM OF CONTROL
OVER THE INTEREST ASSIGNED, THIS COURT CONSTRUED THE ASSIGNMENT AS A
TRANSFER IN PRAESENTI TO THE DONEE, OF A LIFE INTEREST IN THE CORPUS OF
THE TRUST PROPERTY, AND HELD IN CONSEQUENCE THAT THE INCOME THEREAFTER
PAID TO THE DONEE WAS TAXABLE TO HIM AND NOT THE DONOR.  BLAIR V.
COMMISSIONER, SUPRA.  BUT WE THINK IT QUITE ANOTHER MATTER TO SAY THAT
THE BENEFICIARY OF A TRUST WHO MAKES A SINGLE GIFT OF A SUM OF MONEY
PAYABLE OUT OF THE INCOME OF THE TRUST DOES NOT REALIZE INCOME WHEN THE
GIFT IS EFFECTUATED BY PAYMENT, OR THAT HE ESCAPES THE TAX BY
ATTEMPTING TO CLOTHE THE TRANSACTION IN THE GUISE OF A TRANSFER OF
TRUST PROPERTY RATHER THAN THE TRANSFER OF INCOME, WHERE THAT IS ITS
OBVIOUS PURPOSE AND EFFECT.  WE THINK THAT THE GIFT BY A BENEFICIARY OF
A TRUST OF SOME PART OF THE INCOME DERIVED FROM THE TRUST PROPERTY FOR
THE PERIOD OF A DAY, A MONTH OR A YEAR INVOLVES NO SUCH SUBSTANTIAL
DISPOSITION OF THE TRUST PROPERTY AS TO CAMOUFLAGE THE REALITY THAT HE
IS ENJOYING THE BENEFIT OF THE INCOME FROM THE TRUST OF WHICH HE
CONTINUES TO BE THE BENEFICIARY, QUITE AS MUCH AS HE ENJOYS THE
BENEFITS OF INTEREST OR WAGES WHICH HE GIVES AWAY AS IN THE HORST AND
EUBANK CASES.  EVEN THOUGH THE GIFT OF INCOME BE IN FORM ACCOMPLISHED
BY THE TEMPORARY DISPOSITION OF THE DONOR'S PROPERTY WHICH PRODUCES THE
INCOME, THE DONOR RETAINING EVERY OTHER SUBSTANTIAL INTEREST IN IT, WE
HAVE NOT ALLOWED THE FORM TO OBSCURE THE REALITY.  INCOME WHICH THE
DONOR GIVES AWAY THROUGH THE MEDIUM OF A SHORT TERM TRUST CREATED FOR
THE BENEFIT OF THE DONEE IS NEVERTHELESS INCOME TAXABLE TO THE DONOR. 
HELVERING V. CLIFFORD, SUPRA; HORMEL V. HELVERING, ANTE, P. 552.  WE
PERCEIVE NO DIFFERENCE, SO FAR AS THE CONSTRUCTION AND APPLICATION OF
THE REVENUE ACT IS CONCERNED, BETWEEN A GIFT OF INCOME IN A SPECIFIED
AMOUNT BY THE CREATION OF A TRUST FOR A YEAR, SEE HORMEL V. HELVERING,
SUPRA, AND THE ASSIGNMENT BY THE BENEFICIARY OF A TRUST ALREADY CREATED
OF A LIKE AMOUNT FROM ITS INCOME FOR A YEAR. 

NOR ARE WE TROUBLED BY THE LOGICAL DIFFICULTIES OF DRAWING THE LINE
BETWEEN A GIFT OF AN EQUITABLE INTEREST IN PROPERTY FOR LIFE EFFECTED
BY A GIFT FOR LIFE OF A SHARE OF THE INCOME OF THE TRUST AND THE GIFT
OF THE INCOME OR A PART OF IT FOR THE PERIOD OF A YEAR AS IN THIS
CASE.  "DRAWING THE LINE" IS A RECURRENT DIFFICULTY IN THOSE FIELDS OF
THE LAW WHERE DIFFERENCES IN DEGREE PRODUCE ULTIMATE DIFFERENCES IN
KIND.  SEE IRWIN V. GAVIT, 268 U.S. 161, 168.  IT IS ENOUGH THAT WE
FIND IN THE PRESENT CASE THAT THE TAXPAYER, IN POINT OF SUBSTANCE, HAS
PARTED WITH NO SUBSTANTIAL INTEREST IN PROPERTY OTHER THAN THE
SPECIFIED PAYMENTS OF INCOME WHICH, LIKE OTHER GIFTS OF INCOME, ARE
TAXABLE TO THE DONOR.  UNLESS IN THE MEANTIME THE DIFFICULTY BE
RESOLVED BY STATUTE OR TREASURY REGULATION, WE LEAVE IT TO FUTURE
JUDICIAL DECISIONS TO DETERMINE PRECISELY WHERE THE LINE SHALL BE DRAWN
BETWEEN GIFTS OF INCOME-PRODUCING PROPERTY AND GIFTS OF INCOME FROM
PROPERTY OF WHICH THE DONOR REMAINS THE OWNER, FOR ALL SUBSTANTIAL AND
PRACTICAL PURPOSES.  CF. HELVERING V. CLIFFORD, SUPRA.  REVERSED. 
..END :







UNITED STATES V. SHERWOOD, 312 U.S. 584 


NO. 500.  ARGUED MARCH 6, 7, 1941.  - DECIDED MARCH 31, 1941.  - 112
F.2D 587, REVERSED. 


A NEW YORK COURT, ACTING UNDER AUTHORITY OF SEC. 795 OF THE NEW YORK
CIVIL PRACTICE ACT, MADE AN ORDER AUTHORIZING A JUDGMENT CREDITOR TO
SUE UNDER THE TUCKER ACT, TO RECOVER DAMAGES FROM THE UNITED STATES FOR
BREACH OF ITS CONTRACT WITH THE JUDGMENT DEBTOR, THE ORDER DIRECTING
THAT OUT OF THE RECOVERY THE JUDGMENT CREDITOR SHOULD BE ENTITLED TO A
SUM SUFFICIENT TO SATISFY HIS JUDGMENT WITH INTEREST, COSTS, ETC.  THE
STATE LAW CITED MAKES THE JUDGMENT DEBTOR A NECESSARY PARTY AND
AUTHORIZES HIM IN ANY SUIT SO BROUGHT TO ATTACK THE VALIDITY OF THE
ORDER AND OF THE JUDGMENT ON WHICH IT IS FOUNDED.  HELD: 

1.  THAT A SUIT BROUGHT ACCORDINGLY AGAINST THE UNITED STATES AND THE
JUDGMENT DEBTOR WAS NOT WITHIN THE JURISDICTION OF THE FEDERAL COURT. 
P. 588. 

2.  A COURT HAS NO JURISDICTION OF A SUIT AGAINST THE UNITED STATES
TO WHICH THE UNITED STATES HAS NOT CONSENTED.  P. 587. 

3.  JURISDICTION OF A FEDERAL COURT TO AWARD DAMAGES FOR BREACH OF
CONTRACT BY THE UNITED STATES IS DEFINED BY THE TUCKER ACT AND IS
RESTRICTED TO SUITS AGAINST THE GOVERNMENT ALONE; IF ADJUDICATION OF
THE PLAINTIFF'S RIGHT TO MAINTAIN THE SUIT AS AGAINST A PRIVATE PARTY
IS PREREQUISITE TO ITS PROSECUTION AGAINST THE UNITED STATES, THE SUIT
MUST BE DISMISSED.  P. 588. 

4.  THE FEDERAL RULES OF CIVIL PROCEDURE DO NOT AUTHORIZE ANY SUIT
AGAINST THE UNITED STATES TO WHICH IT HAS NOT OTHERWISE CONSENTED.  P.
589. 

5.  THE ACT OF JUNE 19, 1934, 48 STAT. 1064, 28 U.S.C. 723,
AUTHORIZING THIS COURT TO PRESCRIBE RULES OF PROCEDURE IN CIVIL ACTIONS
GAVE IT NO AUTHORITY TO MODIFY, ABRIDGE OR ENLARGE THE SUBSTANTIVE
RIGHTS OF LITIGANTS OR TO ENLARGE OR DIMINISH THE JURISDICTION OF
FEDERAL COURTS.  P. 590. 

6.  THE CONCURRENT JURISDICTION OF THE DISTRICT COURT UNDER THE
TUCKER ACT DOES NOT EXTEND TO ANY SUIT WHICH COULD NOT BE LITIGATED IN
THE COURT OF CLAIMS.  P. 590. 

7.  WAIVERS OF SOVEREIGN IMMUNITY FROM SUIT ARE STRICTLY CONSTRUED. 
P. 590. 

UNITED STATES V. SHERWOOD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 640, TO REVIEW THE REVERSAL OF A JUDGMENT OF THE
DISTRICT COURT DISMISSING FOR WANT OF JURISDICTION A SUIT AGAINST THE
UNITED STATES AND A PRIVATE PARTY. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE NEW YORK SUPREME COURT, ACTING UNDER AUTHORITY OF SEC. 795 OF THE
NEW YORK CIVIL PRACTICE ACT, MADE AN ORDER AUTHORIZING RESPONDENT, AS A
JUDGMENT CREDITOR, TO MAINTAIN A SUIT UNDER THE TUCKER ACT OF MARCH 3,
1887, 24 STAT. 505, SEC. 24(20) OF THE JUDICIAL CODE, 28 U.S.C. SEC.
41(20), TO RECOVER DAMAGES FROM THE UNITED STATES FOR BREACH OF ITS
CONTRACT WITH THE JUDGMENT DEBTOR.  THE QUESTION FOR DECISION IS
WHETHER A UNITED STATES DISTRICT COURT HAS JURISDICTION TO ENTERTAIN
THE SUIT. 

THE ORDER AUTHORIZED RESPONDENT, WHO HAD RECOVERED A JUDGMENT AGAINST
KAISER IN THE NEW YORK SUPREME COURT FOR $5,567.22, TO BRING SUIT
AGAINST THE GOVERNMENT TO RECOVER FOR BREACH OF ITS CONTRACT WITH
KAISER FOR THE CONSTRUCTION OF A POSTOFFICE BUILDING.  THE ORDER
DIRECTED THAT OUT OF THE AMOUNT RECOVERED RESPONDENT SHOULD BE ENTITLED
TO A SUM SUFFICIENT TO SATISFY HIS JUDGMENT WITH INTEREST "AS WELL AS
COSTS, DISBURSEMENTS AND EXPENSES WHICH MAY BE ALLOWED BY THE COURT." 

RESPONDENT BROUGHT THE PRESENT SUIT AGAINST THE UNITED STATES AND
KAISER IN THE DISTRICT COURT FOR EASTERN NEW YORK.  BY HIS COMPLAINT HE
SET UP THE JUDGMENT AND THE ORDER OF THE STATE COURT, THE BREACH OF
CONTRACT BY THE UNITED STATES, AND THE CONSEQUENT DAMAGE TO KAISER IN
THE SUM OF $14,448.49, AND PRAYED JUDGMENT IN THE SUM OF $10,000.  THE
ORDER OF THE DISTRICT COURT DISMISSING THE COMPLAINT FOR WANT OF
JURISDICTION WAS REVERSED BY THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT, 112 F.2D 587, WHICH HELD THAT UNDER RULE 17(B) OF THE
FEDERAL RULES OF CIVIL PROCEDURE RESPONDENT'S "CAPACITY TO SUE" WAS
GOVERNED BY THE LAW OF NEW YORK, WHICH WAS HIS DOMICILE; AND THAT THE
ORDER OF THE STATE COURT HAD CONFERRED AUTHORITY UPON RESPONDENT TO
MAINTAIN THE SUIT, THE UNITED STATES BEING A "PERSON INDEBTED" WITHIN
THE MEANING OF SEC. 795 OF THE CIVIL PRACTICE ACT, WHICH SANCTIONS
ORDERS BY THE STATE COURT AUTHORIZING A SUIT BY A JUDGMENT CREDITOR
AGAINST A "PERSON  ...  INDEBTED TO THE JUDGMENT DEBTOR."  WE GRANTED
CERTIORARI, 311 U.S. 640, THE QUESTION OF THE JURISDICTION OF THE
DISTRICT COURT UNDER THE TUCKER ACT BEING OF PUBLIC IMPORTANCE. 

THE UNITED STATES, AS SOVEREIGN, IS IMMUNE FROM SUIT SAVE AS IT
CONSENTS TO BE SUED, UNITED STATES V. THOMPSON, 98 U.S. 486; UNITED
STATES V. LEE, 106 U.S. 196; KANSAS V. UNITED STATES, 204 U.S. 331;
MINNESOTA V. UNITED STATES, 305 U.S. 382, 387; KEIFER & KEIFER V.
RECONSTRUCTION FINANCE CORP., 306 U.S. 381, 388; UNITED STATES V. SHAW,
309 U.S. 495(SEE CASES CITED IN THE PESARO, 277 F. 473, 474, ET SEQ.),
AND THE TERMS OF ITS CONSENT TO BE SUED IN ANY COURT DEFINE THAT
COURT'S JURISDICTION TO ENTERTAIN THE SUIT.  MINNESOTA V. UNITED
STATES, SUPRA, 388 AND CASES CITED; CF. STANLEY V. SCHWALBY, 162 U.S.
255, 270.  JURISDICTION TO ENTERTAIN SUITS AGAINST THE UNITED STATES TO
RECOVER DAMAGES FOR BREACH OF CONTRACT AND CERTAIN OTHER SPECIFIED
CLASSES OF CLAIMS WAS CONFERRED ON THE COURT OF CLAIMS BY ACT OF
FEBRUARY 24, 1855, 10 STAT. 612.  WITH ADDITIONS NOT NOW MATERIAL, THE
JURISDICTION WAS CONTINUED BY PARAGRAPH FIRST OF THE TUCKER ACT OF
MARCH 3, 1887, 24 STAT. 505, WHICH, AS SUPPLEMENTED AND REENACTED, IS
NOW SEC. 145 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 250.  SECTION 2,
WHICH, AS SUPPLEMENTED AND REENACTED, IS NOW SEC. 24(20) OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 41(20), CONFERS JURISDICTION ON THE
DISTRICT COURTS "CONCURRENT WITH THE COURT OF CLAIMS, OF ALL CLAIMS NOT
EXCEEDING $10,000 FOUNDED  ...  UPON ANY CONTRACT, EXPRESS OR IMPLIED,
WITH THE GOVERNMENT OF THE UNITED STATES, OR FOR DAMAGES, LIQUIDATED OR
UNLIQUIDATED, IN CASES NOT SOUNDING IN TORT, IN RESPECT TO WHICH CLAIMS
THE PARTY WOULD BE ENTITLED TO REDRESS AGAINST THE UNITED STATES,
EITHER IN A COURT OF LAW, EQUITY, OR ADMIRALTY, IF THE UNITED STATES
WERE SUABLE  ...  " 

THE COURT OF CLAIMS IS A LEGISLATIVE, NOT A CONSTITUTIONAL, COURT. 
ITS JUDICIAL POWER IS DERIVED NOT FROM THE JUDICIARY ARTICLE OF THE
CONSTITUTION, BUT FROM THE CONGRESSIONAL POWER "TO PAY THE DEBTS  ...
OF THE UNITED STATES," WHICH IT IS FREE TO EXERCISE THROUGH JUDICIAL AS
WELL AS NON-JUDICIAL AGENCIES.  SEE WILLIAMS V. UNITED STATES, 289 U.S.
553, 569, 579; EX PARTE BAKELITE CORPORATION, 279 U.S. 438, 452, ET
SEQ. IT IS FOR THIS REASON, AND BECAUSE OF THE POWER OF THE SOVEREIGN
TO ATTACH CONDITIONS TO ITS CONSENT TO BE SUED, THAT CONGRESS, DESPITE
THE SEVENTH AMENDMENT, MAY DISPENSE WITH A JURY TRIAL IN SUITS BROUGHT
IN THE COURT OF CLAIMS.  MCELRATH V. UNITED STATES, 102 U.S. 426;
WILLIAMS V. UNITED STATES, SUPRA, 570, 571; EX PARTE BAKELITE
CORPORATION, SUPRA, 453. 

EXCEPT AS CONGRESS HAS CONSENTED THERE IS NO JURISDICTION IN THE
COURT OF CLAIMS MORE THAN IN ANY OTHER COURT TO ENTERTAIN SUITS AGAINST
THE UNITED STATES, OR FOR THE REVIEW OF ITS DECISIONS BY APPELLATE
COURTS.  LUCKENBACH STEAMSHIP CO. V. UNITED STATES, 272 U.S. 533, 536,
ET SEQ. FOR THAT REASON IT HAS BEEN UNIFORMLY HELD, UPON A REVIEW OF
THE STATUTES CREATING THE COURT AND DEFINING ITS AUTHORITY, THAT ITS
JURISDICTION IS CONFINED TO THE RENDITION OF MONEY JUDGMENTS IN SUITS
BROUGHT FOR THAT RELIEF AGAINST THE UNITED STATES, UNITED STATES V.
ALIRE, 6 WALL.  573; UNITED STATES V. JONES, 131 U.S. 1, AND IF THE
RELIEF SOUGHT IS AGAINST OTHERS THAN THE UNITED STATES THE SUIT AS TO
THEM MUST BE IGNORED AS BEYOND THE JURISDICTION OF THE COURT, UNITED
STATES V. JONES, SUPRA; LYNN V. UNITED STATES, 110 F.2D 586, 588;
LEATHER & LEIGH V. UNITED STATES, 61 CT. CLS. 388, OR IF ITS
MAINTENANCE AGAINST PRIVATE PARTIES IS PREREQUISITE TO PROSECUTION OF
THE SUIT AGAINST THE UNITED STATES THE SUIT MUST BE DISMISSED.  JACKSON
V. UNITED STATES, 27 CT. CLS. 74, 84; WAITE V. UNITED STATES, 57 CT.
CLS. 546; LEATHER & LEIGH V. UNITED STATES, SUPRA; CF. TURNER V. UNITED
STATES, 248 U.S. 354; GREEN V. MENOMINEE TRIBE, 233 U.S. 558.  SEE
PACIFIC MUTUAL LIFE INSURANCE CO. V. UNITED STATES, 44 F.2D 887, 888. 

WE THINK IT PLAIN THAT THE PRESENT SUIT COULD NOT HAVE BEEN
MAINTAINED IN THE COURT OF CLAIMS BECAUSE THAT COURT IS WITHOUT
JURISDICTION OF ANY SUIT BROUGHT AGAINST PRIVATE PARTIES AND BECAUSE
ADJUDICATION OF THE RIGHT OR CAPACITY OF RESPONDENT TO PROCEED WITH THE
SUIT UPON THE CONTRACT OF THE JUDGMENT DEBTOR WITH THE UNITED STATES IS
PREREQUISITE TO ANY RECOVERY UPON THE GOVERNMENT CONTRACT.  AS THE
COURT BELOW RECOGNIZED, THE JUDGMENT DEBTOR, WHO IS MADE A NECESSARY
PARTY BY SEC. 795 OF THE CIVIL PRACTICE ACT, IN ANY SUIT BROUGHT
PURSUANT TO THE ORDER OF THE STATE COURT IS ENTITLED TO ATTACK THE
VALIDITY OF THE ORDER AND OF THE JUDGMENT ON WHICH IT IS FOUNDED.  SEE
NANKIVEL V. OMSK ALL RUSSIAN GOVERNMENT, 237 N.Y. 150, 158; 142 N.E.
569.  ADJUDICATION OF THAT ISSUE IS NOT WITHIN THE JURISDICTION OF THE
COURT OF CLAIMS, WHOSE AUTHORITY, AS WE HAVE SEEN, IS NARROWLY
RESTRICTED TO THE ADJUDICATION OF SUITS BROUGHT AGAINST THE GOVERNMENT
ALONE. 

BUT THE QUESTION REMAINS WHETHER SUCH A SUIT IS NEVERTHELESS WITHIN
THE JURISDICTION CONFERRED BY THE TUCKER ACT ON THE DISTRICT COURTS. 
THE COURT OF APPEALS THOUGHT THAT THE OBSTACLES TO JOINING PRIVATE
PARTIES, AS PARTIES DEFENDANT, IN SUITS AGAINST THE GOVERNMENT ARE
PROCEDURAL ONLY, AND THAT WHILE NO PROCEDURE IS PROVIDED WHEREBY THE
COURT OF CLAIMS CAN ADJUDICATE THE RIGHTS OF PRIVATE PARTIES IN SUITS
AGAINST THE GOVERNMENT, THAT COURT IS NEVERTHELESS FREE TO ADOPT SUCH A
PROCEDURE.  CF. 28 U.S.C. SEC. 263.  IN ANY CASE IT THOUGHT SUCH
PROCEDURE HAS NOW BEEN MADE APPLICABLE TO SUITS IN THE DISTRICT COURTS
BY THE NEW RULES OF CIVIL PRACTICE.  IT CONCLUDED THAT SINCE THE
DISTRICT COURT UNDER THE TUCKER ACT HAS JURISDICTION TO ADJUDICATE
CLAIMS AGAINST THE UNITED STATES AND BY VIRTUE OF OTHER PROVISIONS OF
THE JUDICIAL CODE HAS JURISDICTION TO ADJUDICATE THE ISSUES BETWEEN
RESPONDENT AND THE JUDGMENT DEBTOR, THE RULES OF CIVIL PROCEDURE
AUTHORIZE THE EXERCISE OF BOTH JURISDICTIONS IN A SINGLE SUIT. 

THIS CONCLUSION PRESUPPOSES THAT THE UNITED STATES, EITHER BY THE
RULES OF PRACTICE OR BY THE TUCKER ACT OR BOTH, HAS GIVEN ITS CONSENT
TO BE SUED IN LITIGATIONS IN WHICH ISSUES BETWEEN THE PLAINTIFF AND
THIRD PERSONS ARE TO BE ADJUDICATED.  BUT WE THINK THAT NOTHING IN THE
NEW RULES OF CIVIL PRACTICE SO FAR AS THEY MAY BE APPLICABLE IN SUITS
BROUGHT IN DISTRICT COURTS UNDER THE TUCKER ACT AUTHORIZES THE
MAINTENANCE OF ANY SUIT AGAINST THE UNITED STATES TO WHICH IT HAS NOT
OTHERWISE CONSENTED.  AN AUTHORITY CONFERRED UPON A COURT TO MAKE RULES
OF PROCEDURE FOR THE EXERCISE OF ITS JURISDICTION IS NOT AN AUTHORITY
TO ENLARGE THAT JURISDICTION; AND THE ACT OF JUNE 19, 1934, 48 STAT.
1064, 28 U.S.C. 723B, AUTHORIZING THIS COURT TO PRESCRIBE RULES OF
PROCEDURE IN CIVIL ACTIONS GAVE IT NO AUTHORITY TO MODIFY, ABRIDGE OR
ENLARGE THE SUBSTANTIVE RIGHTS OF LITIGANTS OR TO ENLARGE OR DIMINISH
THE JURISDICTION OF FEDERAL COURTS. 

NOR WITH DUE REGARD TO THE WORDS OF SEC. 2 OF THE TUCKER ACT AND TO
ITS LEGISLATIVE HISTORY CAN WE SAY THAT THE UNITED STATES HAS CONSENTED
TO THE MAINTENANCE OF SUITS AGAINST THE GOVERNMENT IN THE DISTRICT
COURTS WHICH COULD NOT BE MAINTAINED IN THE COURT OF CLAIMS.  THE
CONSENT OF THE GOVERNMENT TO BE SUED, WHICH CONSENT, SINCE IT IS A
RELINQUISHMENT OF A SOVEREIGN IMMUNITY, MUST BE STRICTLY INTERPRETED. 
SCHILLINGER V. UNITED STATES, 155 U.S. 163; PRICE V. UNITED STATES, 174
U.S. 373; UNITED STATES V. MICHEL, 282 U.S. 656; UNITED STATES V. SHAW,
309 U.S. 495; UNITED STATES V. U.S. FIDELITY & GUARANTY CO., 309 U.S.
506; CF. FEDERAL HOUSING ADMINISTRATION V. BURR, 309 U.S. 242, 247. 
IS AN INTEGRAL PART OF THE STATUTE, OTHER SECTIONS OF WHICH REVISED AND
ENLARGED THE CLASSES OF CLAIMS AGAINST THE UNITED STATES WHICH COULD BE
LITIGATED IN THE COURT OF CLAIMS.  IT WAS THE JURISDICTION THUS DEFINED
AND ESTABLISHED FOR THAT COURT WHICH WAS EXTENDED BY THE SECTION TO THE
DISTRICT COURTS IN THE SPECIFIED INSTANCES, FOR IN CONSENTING TO SUITS
AGAINST THE GOVERNMENT IN THE DISTRICT COURTS, CONGRESS PRESCRIBED THAT
THE JURISDICTION THUS CONFERRED SHOULD BE "CONCURRENT" WITH THAT OF THE
COURT OF CLAIMS. 

CONSTRUING THE STATUTORY LANGUAGE WITH THAT CONSERVATISM WHICH IS
APPROPRIATE IN THE CASE OF A WAIVER OF SOVEREIGN IMMUNITY, AND IN THE
LIGHT OF THE HISTORY OF THE COURT OF CLAIMS' JURISDICTION TO WHICH WE
HAVE REFERRED, WE THINK THAT THE TUCKER ACT DID NO MORE THAN AUTHORIZE
THE DISTRICT COURT TO SIT AS A COURT OF CLAIMS AND THAT THE AUTHORITY
THUS GIVEN TO ADJUDICATE CLAIMS AGAINST THE UNITED STATES DOES NOT
EXTEND TO ANY SUIT WHICH COULD NOT BE MAINTAINED IN THE COURT OF
CLAIMS.  SEE UNITED STATES V. JONES, SUPRA, 19; UNITED STATES V.
PFITSCH, 256 U.S. 547, 550; CF. BATES MFG. CO. V. UNITED STATES, 303
U.S. 567, 571.  THE MATTER IS NOT ONE OF PROCEDURE BUT OF JURISDICTION
WHOSE LIMITS ARE MARKED BY THE GOVERNMENT'S CONSENT TO BE SUED.  THAT
CONSENT MAY BE CONDITIONED, AS WE THINK IT HAS BEEN HERE, ON THE
RESTRICTION OF THE ISSUES TO BE ADJUDICATED IN THE SUIT, TO THOSE
BETWEEN THE CLAIMANT AND THE GOVERNMENT.  THE JURISDICTION THUS LIMITED
IS UNAFFECTED BY THE RULES OF CIVIL PROCEDURE, WHICH PRESCRIBE THE
METHODS BY WHICH THE JURISDICTION OF THE FEDERAL COURTS IS TO BE
EXERCISED BUT DO NOT ENLARGE THE JURISDICTION. 

THE PRESENT LITIGATION WELL ILLUSTRATES THE EMBARRASSMENTS WHICH
WOULD ATTEND THE DEFENSE OF SUITS BROUGHT AGAINST THE GOVERNMENT IF THE
JURISDICTION OF DISTRICT COURTS WERE NOT DEEMED TO BE AS RESTRICTED AS
IS THAT OF THE COURT OF CLAIMS.  THE GOVERNMENT, TO PROTECT ITS
INTERESTS, MUST NOT ONLY LITIGATE THE CLAIM UPON WHICH IT HAS CONSENTED
TO BE SUED, BUT MUST MAKE CERTAIN THAT RESPONDENT'S RIGHT, AS AGAINST
THE JUDGMENT DEBTOR, TO MAINTAIN THE SUIT IS PROPERLY ADJUDICATED.  AND
SINCE THE ALLEGED CLAIM FOR DAMAGES IS LARGER THAN THE $10,000
JURISDICTIONAL AMOUNT THE GOVERNMENT MUST EITHER BE SUBJECTED TO
SUCCESSIVE SUITS FOR PARTIAL RECOVERIES OF THE AMOUNT DUE OR MUST MAKE
CERTAIN THAT RESPONDENT HAS LEGAL AUTHORITY TO RELINQUISH THE JUDGMENT
DEBTOR'S CLAIM IN EXCESS OF $10,000, AND THAT THIS HAS BEEN
ACCOMPLISHED BY THE LIMITATION OF HIS DEMAND FOR JUDGMENT TO THAT
AMOUNT.  SEE FRANKLIN V. UNITED STATES, 308 U.S. 516; OTIS ELEVATOR CO.
V. UNITED STATES, 18 F.SUPP.  87.  THE GOVERNMENT'S CONSENT TO LITIGATE
SUCH ISSUES IS HARDLY TO BE INFERRED FROM ITS CONSENT TO BE SUED UPON A
CLAIM FOR DAMAGES FOR BREACH OF CONTRACT.  CF. NATIONAL SURETY CO. V.
WASHINGTON IRON WORKS, 243 F. 260.  REVERSED. 
..END :

















U.S. V. CHICAGO, M., ST. P. & P.R. CO., 312 U.S. 592 


NO. 535.  ARGUED MARCH 10, 11, 1941.  - DECIDED MARCH 31, 1941.  - 113
F.2D 919, REVERSED. 


1.  A RAILROAD COMPANY WHOSE ROAD TRAVERSES AN EMBANKMENT BUILT UP
FROM LOW-WATER MARK IN THE BED OF A NAVIGABLE STREAM TO A LEVEL ABOVE
THAT OF ORDINARY HIGH WATER IS NOT ENTITLED, UNDER THE FIFTH AMENDMENT,
TO CLAIM COMPENSATION FROM THE UNITED STATES FOR ADDITIONAL COST OF
PROTECTING THE EMBANKMENT NECESSITATED BY THE ACTION OF THE GOVERNMENT
IN RAISING THE WATER LEVEL ABOVE NATURAL HIGH-WATER MARK, BY MEANS OF A
DAM, FOR THE PURPOSE OF IMPROVING NAVIGATION.  SO HELD, ALTHOUGH THE
EMBANKMENT WAS REMOTE FROM THE NATURAL CHANNEL AND FROM THE COURSE OF
NAVIGATION THROUGH THE POOL FORMED BY THE DAM AND DID NOT OBSTRUCT
NAVIGATION.  PP. 593, 596. 

2.  UNITED STATES V. LYNAH, 188 U.S. 445, IN PART OVERRULED.  P.
597. 

3.  THE POWER OF THE GOVERNMENT OVER NAVIGATION COVERS THE ENTIRE BED
OF A NAVIGABLE STREAM, INCLUDING ALL LANDS BELOW ORDINARY HIGHWATER
MARK.  WHETHER TITLE TO THE BED IS RETAINED BY THE STATE OR IS IN THE
RIPARIAN OWNER, THE RIGHTS OF THE TITLE-HOLDER ARE SUBSERVIENT TO THIS
DOMINANT EASEMENT.  P. 596. 

UNITED STATES V. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO.
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 311 U.S. 642, TO REVIEW THE AFFIRMANCE OF A JUDGMENT ON A
VERDICT AWARDING COMPENSATION TO THE RAILROAD COMPANY AND TO THE
TELEGRAPH COMPANY AGAINST THE UNITED STATES IN A CONDEMNATION
PROCEEDING. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE UNITED STATES MUST
COMPENSATE A RIPARIAN OWNER FOR INJURY TO STRUCTURES LOCATED BETWEEN
HIGH AND LOW WATER MARKS, WHERE THE DAMAGE IS CAUSED BY THE RAISING OF
THE WATER LEVEL IN A NAVIGABLE STREAM FOR THE IMPROVEMENT OF
NAVIGATION.  THE IMPORTANCE OF THE QUESTION, AND A CONFLICT IN THE
DECISIONS OF THIS COURT, LED TO THE GRANT OF CERTIORARI. 

THE TRACKS OF THE RESPONDENT RAILROAD AND THE POLE LINES OF THE
RESPONDENT TELEGRAPH COMPANY IN WABASHA AND WINONA COUNTIES, MINNESOTA,
AS RELOCATED IN 1910, ARE, IN PART, ON AN EMBANKMENT ON THE WESTERLY
SIDE OF THE MISSISSIPPI RIVER.  THE EMBANKMENT WAS ADEQUATELY
RIPRAPPED, WHERE NECESSARY, TO PROTECT IT IN TIMES OF HIGH WATER. 

IN THE PROSECUTION OF A PROJECT FOR THE IMPROVEMENT OF NAVIGATION THE
UNITED STATES HAS BEEN, AND IS, ENGAGED IN CONSTRUCTING A SERIES OF
LOCKS AND DAMS IN THE UPPER REACHES OF THE MISSISSIPPI.  ONE OF THE
DAMS AUTHORIZED BY ACT OF CONGRESS  FN1  RAISES THE LEVEL OF THE RIVER
AND CREATES A POOL WHICH INUNDATES BOTTOM LANDS ALONG THE WEST BANK. 

IN 1933 THE GOVERNMENT INSTITUTED CONDEMNATION PROCEEDINGS TO ACQUIRE
THE RIGHT TO BACK WATER ACROSS THE RESPONDENTS' RIGHT OF WAY AND
AGAINST THEIR EMBANKMENT.  SINCE THE DAM RAISES THE WATER LEVEL FROM
5.6 TO 7.5 FEET ABOVE ORDINARY HIGH-WATER MARK, THE RESPONDENTS WERE
COMPELLED AT CERTAIN POINTS TO ADD ADDITIONAL RIPRAP TO PREVENT DAMAGE
TO THEIR EMBANKMENT. 

AT THE TRIAL IN THE CONDEMNATION PROCEEDING THE GOVERNMENT OFFERED TO
PROVE THAT FOUR SEGMENTS OF THE EMBANKMENT LIE BETWEEN THE ORDINARY
HIGH AND ORDINARY LOW WATER MARKS OF THE RIVER; ARE, THEREFORE, SUBJECT
TO THE FEDERAL POWER TO IMPROVE NAVIGATION; AND THAT ANY INJURY TO THEM
BY ADDITIONAL FLOODING IS AN INCIDENT OF THE EXERCISE OF THE POWER AND
NOT THE SUBJECT OF COMPENSATION.  THE RESPONDENTS OBJECTED TO THE OFFER
AS IMMATERIAL FOR THE REASON THAT NEITHER BEFORE NOR AFTER THE
IMPROVEMENT DID THE EMBANKMENT CONSTITUTE AN OBSTRUCTION OR MENACE TO
NAVIGATION AND ITS MAINTENANCE WAS AND IS, THEREFORE, A RIGHT OF
PRIVATE PROPERTY, THE INJURY TO WHICH, IN THE PROSECUTION OF THE
FEDERAL PROJECT, ENTITLED THE OWNER TO COMPENSATION. 

THE DISTRICT COURT REJECTED THE OFFER OF PROOF.  THEREUPON THE
GOVERNMENT MOVED TO DISMISS FROM THE PROCEEDINGS ALL QUESTION OF
COMPENSATION FOR THE FOUR ENCROACHMENT AREAS WHERE THE EMBANKMENT WAS
CLAIMED TO BE LOCATED BETWEEN HIGH AND LOW WATER MARKS.  THE MOTION WAS
DENIED.  A VERDICT AND JUDGMENT ENSUED FOR DAMAGES TO THE ENTIRE LENGTH
OF THE EMBANKMENT BOTH WHERE IT WAS ADMITTED TO BE LOCATED ON FAST LAND
AND WHERE IT WAS CLAIMED TO LIE BETWEEN HIGH AND LOW WATER MARKS.  EACH
PARTY APPEALED.  THEREAFTER, BY STIPULATION, ALL QUESTIONS, EXCEPT THAT
TOUCHING THE FOUR SEGMENTS OF THE EMBANKMENT WHICH THE GOVERNMENT
CLAIMED WERE LOCATED BETWEEN HIGH AND LOW WATER MARKS, WERE ELIMINATED
FROM THE CAUSE.  IT WAS STIPULATED BY THE RESPONDENTS THAT ONE OF THE
FOUR SEGMENTS IN QUESTION WAS SO LOCATED, BUT AS TO THE OTHER THREE THE
PARTIES ARE IN DISAGREEMENT.  THE COURT OF APPEALS, FOR THE PURPOSE OF
DECISION, ASSUMED THAT ALL FOUR WERE SO LOCATED BUT HELD, NEVERTHELESS,
THAT THE GOVERNMENT WAS BOUND TO COMPENSATE THE RESPONDENTS FOR DAMAGE
TO ALL OF THEM, AND AFFIRMED THE JUDGMENT OF THE DISTRICT COURT.  FN2 

CERTAIN MATTERS ARE NOT IN DISPUTE.  THE MISSISSIPPI RIVER AT THE
POINTS IN QUESTION IS NAVIGABLE.  THE RESPONDENT RAILROAD IS THE
RIPARIAN OWNER AND, AS SUCH, ITS TITLE EXTENDS TO ORDINARY LOW-WATER
MARK.  THE NATURAL CHANNEL AND THE COURSE OF NAVIGATION THROUGH THE
POOL FORMED BY THE DAM LIE AT A CONSIDERABLE DISTANCE FROM THE
EMBANKMENT, WHICH DOES NOT, AND WILL NOT, OBSTRUCT OR INTERFERE WITH
ACTUAL NAVIGATION.  THE LANDS LYING BETWEEN THE EMBANKMENT AND THE
NATURAL CHANNEL WERE LOWLANDS WHICH, PRIOR TO THE IMPROVEMENT, WERE TO
A GREAT EXTENT COVERED WITH TREES AND SCRUB. 

THE RESPONDENTS ASSERT THAT THE POWER OF THE GOVERNMENT TO TAKE
PRIVATE LANDS FOR THE IMPROVEMENT OF NAVIGATION IS CONFINED TO THE
NATURAL WIDTHS, LEVELS, AND FLOWS OF THE RIVER AND THAT IF MORE IS
TAKEN COMPENSATION MUST BE MADE.  THEIR POSITION IS THAT THE EMBANKMENT
CAN BE INJURED WITHOUT COMPENSATION ONLY IF IT CONSTITUTES AN
ENCROACHMENT AND THUS A HINDRANCE OR OBSTRUCTION TO ACTUAL NAVIGATION. 
THE GOVERNMENT, ON THE OTHER HAND, INSISTS THAT ITS POWER IS NOT
CONFINED TO THE MERE MAKING OR CLEARING OF CHANNELS AND REMOVING
HINDRANCES AND OBSTRUCTIONS TO THEIR NAVIGATION, BUT EMBRACES THE
EXERCISE OF EVERY APPROPRIATE MEANS FOR THE IMPROVEMENT OF NAVIGABLE
CAPACITY; AND THAT, IN THE PROVISION OF ANY SUCH MEANS, IT IS ENTITLED
TO DEAL WITH AND ALTER THE LEVEL OF THE STREAM TO ANY EXTENT UP TO
ORDINARY HIGH-WATER MARK WITHOUT BEING ANSWERABLE TO RIPARIAN OWNERS
FOR INJURY TO STRUCTURES LYING BELOW THAT LINE. 

COMMERCE, THE REGULATION OF WHICH BETWEEN THE STATES IS COMMITTED BY
THE CONSTITUTION TO CONGRESS, INCLUDES NAVIGATION.  "THE POWER TO
REGULATE COMMERCE COMPREHENDS THE CONTROL FOR THAT PURPOSE, AND TO THE
EXTENT NECESSARY, OF ALL THE NAVIGABLE WATERS OF THE UNITED STATES
WHICH ARE ACCESSIBLE FROM A STATE OTHER THAN THOSE IN WHICH THEY LIE. 
FOR THIS PURPOSE THEY ARE THE PUBLIC PROPERTY OF THE NATION, AND
SUBJECT TO ALL THE REQUISITE LEGISLATION BY CONGRESS."  FN3  AND THE
DETERMINATION OF THE NECESSITY FOR A GIVEN IMPROVEMENT OF NAVIGABLE
CAPACITY, AND THE CHARACTER AND EXTENT OF IT, IS FOR CONGRESS ALONE. 
FN4  WHETHER, UNDER LOCAL LAW, THE TITLE TO THE BED OF THE STREAM IS
RETAINED BY THE STATE OR THE TITLE OF THE RIPARIAN OWNER EXTENDS TO THE
THREAD OF THE STREAM, OR, AS IN THIS CASE, TO LOW-WATER MARK,  FN5  THE
RIGHTS OF THE TITLE HOLDER ARE SUBORDINATE TO THE DOMINANT POWER OF THE
FEDERAL GOVERNMENT IN RESPECT OF NAVIGATION.  FN6 

THE POWER OF CONGRESS EXTENDS NOT ONLY TO KEEPING CLEAR THE CHANNELS
OF INTERSTATE NAVIGATION BY THE PROHIBITION OR REMOVAL OF ACTUAL
OBSTRUCTIONS LOCATED BY THE RIPARIAN OWNER, OR OTHERS, BUT COMPREHENDS
AS WELL THE POWER TO IMPROVE AND ENLARGE THEIR NAVIGABILITY.  FN7 

THE BED OF A RIVER IS "THAT PORTION OF ITS SOIL WHICH IS ALTERNATELY
COVERED AND LEFT BARE, AS THERE MAY BE AN INCREASE OR DIMINUTION IN THE
SUPPLY OF WATER, AND WHICH IS ADEQUATE TO CONTAIN IT AT ITS AVERAGE AND
MEAN STAGE DURING THE ENTIRE YEAR, WITHOUT REFERENCE TO THE
EXTRAORDINARY FRESHETS OF THE WINTER OR SPRING, OR THE EXTREME DROUGHTS
OF THE SUMMER OR AUTUMN."  FN8 

THE DOMINANT POWER OF THE FEDERAL GOVERNMENT, AS HAS BEEN REPEATEDLY
HELD, EXTENDS TO THE ENTIRE BED OF A STREAM, WHICH INCLUDES THE LANDS
BELOW ORDINARY HIGH-WATER MARK.  THE EXERCISE OF THE POWER WITHIN THESE
LIMITS IS NOT AN INVASION OF ANY PRIVATE PROPERTY RIGHT IN SUCH LANDS
FOR WHICH THE UNITED STATES MUST MAKE COMPENSATION.  FN9  THE DAMAGE
SUSTAINED RESULTS NOT FROM A TAKING OF THE RIPARIAN OWNER'S PROPERTY IN
THE STREAM BED, BUT FROM THE LAWFUL EXERCISE OF A POWER TO WHICH THAT
PROPERTY HAS ALWAYS BEEN SUBJECT. 

THE RESPONDENTS ADMIT THAT THIS IS THE SETTLED RULE BUT INSIST THAT
IT HAS BEEN APPLIED ONLY IN CASES WHERE THE CONTROL OF THE GOVERNMENT
WAS EXERCISED TO EXTEND THE AREA OF PRACTICABLE NAVIGATION EITHER BY
CONSTRUCTING CHANNELS FOR ACTUAL USE OR BY REMOVING OBSTRUCTIONS TO
NAVIGATION.  THEY ASSERT, AND THE COURT BELOW WAS OF OPINION, THAT
UNITED STATES V. LYNAH, 188 U.S. 445, AND UNITED STATES V. CRESS, 243
U.S. 316, SANCTION A DIFFERENT PRINCIPLE WHERE THE IMPROVEMENT CONSISTS
IN THE RAISING OF THE LEVEL OF A STREAM TO THE INJURY OF STRUCTURES
ERECTED BY THE RIPARIAN OWNER BETWEEN HIGH AND LOW WATER MARK. 

WHAT WAS SAID IN THE CRESS CASE MUST BE CONFINED TO THE FACTS THERE
DISCLOSED.  IN THAT CASE, THE GOVERNMENT'S IMPROVEMENT IN A NAVIGABLE
STREAM RESULTED IN THE FLOODING OF THE PLAINTIFF'S LAND IN AND ADJACENT
TO A NON-NAVIGABLE STREAM.  THE OWNERS OF THE LAND ALONG AND UNDER THE
BED OF THE STREAM WERE HELD ENTITLED TO COMPENSATION FOR THE DAMAGE TO
THEIR LANDS.  THE QUESTION HERE PRESENTED WAS NOT DISCUSSED IN THE
OPINION. 

IN THE LYNAH CASE THE PLAINTIFF'S RICE PLANTATION WAS RENDERED
WORTHLESS BY THE GOVERNMENT'S RAISING THE WATER IN THE SAVANNAH RIVER. 
THREE QUESTIONS WERE CONSIDERED AT LENGTH BY THIS COURT: WHETHER THE
TRIAL COURT (THE THEN CIRCUIT COURT) HAD JURISDICTION; WHETHER THERE
WAS A TAKING OF PLAINTIFF'S PROPERTY; AND WHETHER THE GOVERNMENT WAS
BOUND TO COMPENSATE THEREFOR.  ALL WERE ANSWERED IN THE AFFIRMATIVE. 
APPLYING EARLIER DECISIONS IT WAS HELD THAT THE PERMANENT FLOODING OF
LAND ADJACENT TO A STREAM IN THE IMPROVEMENT OF NAVIGATION, PURSUANT TO
STATUTORY AUTHORITY, AMOUNTED TO A TAKING AND THAT THE COURT HAD
JURISDICTION TO AWARD COMPENSATION UPON THE FOOTING OF AN IMPLIED
CONTRACT OF THE GOVERNMENT TO PAY FOR WHAT IT TOOK.  BUT AS THE COURT
BELOW POINTS OUT, THE QUOTED FINDINGS SHOW, AND THE OPINION ADVERTED TO
THE FACT, THAT THE PLANTATION LAY IN PART BETWEEN THE HIGH AND LOW
WATER LINES, AND THIS COURT HELD THAT THE FLOODING CONSTITUTED A TAKING
OF THE WHOLE, FOR WHICH COMPENSATION WAS DUE UNDER THE FIFTH AMENDMENT
TO THE CONSTITUTION.  MOREOVER, THREE JUSTICES BASED THEIR DISSENT
LARGELY ON THE FACT THAT COMPENSATION WAS AWARDED FOR INJURY TO LANDS
LYING BELOW HIGH-WATER MARK.  WE ARE BOUND, THEREFORE, TO DETERMINE
WHETHER WE SHALL FOLLOW THAT DECISION IN RESPECT OF THE ISSUE INVOLVED
IN THE INSTANT CASE.  THE DECISION WAS BY A DIVIDED COURT; AND LATER,
IN A SIMILAR CASE, THERE WAS AN AFFIRMANCE BY AN EQUALLY DIVIDED
COURT.  FN10  THE CASE HAS OFTEN BEEN CITED AS AUTHORITY FOR THE
SETTLED DOCTRINE THAT AN AUTHORIZED TAKING OF PROPERTY FOR PUBLIC USE
GIVES RISE TO AN IMPLIED PROMISE TO PAY JUST COMPENSATION.  BUT WE
THINK THIS COURT HAS NEVER FOLLOWED IT AS A BINDING DECISION THAT
COMPENSATION IS DUE FOR INJURY OR DESTRUCTION OF A RIPARIAN OWNER'S
PROPERTY LOCATED IN THE BED OF A NAVIGABLE STREAM.  AND WE THINK THAT,
SO FAR AS IT SANCTIONS SUCH A PRINCIPLE, IT IS IN IRRECONCILABLE
CONFLICT WITH OUR LATER DECISIONS  FN11  AND CANNOT BE CONSIDERED AS
EXPRESSING THE LAW. 

IT IS NOT TRUE, AS RESPONDENTS MAINTAIN, THAT ONLY STRUCTURES IN THE
BED OF A NAVIGABLE STREAM WHICH OBSTRUCT OR ADVERSELY AFFECT NAVIGATION
MAY BE INJURED OR DESTROYED WITHOUT COMPENSATION BY A FEDERAL
IMPROVEMENT OF NAVIGABLE CAPACITY.  ON THE CONTRARY, ANY STRUCTURE IS
PLACED IN THE BED OF A STREAM AT THE RISK THAT IT MAY BE SO INJURED OR
DESTROYED; AND THE RIGHT TO COMPENSATION DOES NOT DEPEND ON THE ABSENCE
OF PHYSICAL INTERFERENCE WITH NAVIGATION.  THE RATIO DECIDENDI AND THE
CIRCUMSTANCES DISCLOSED IN NUMEROUS CASES LEAD INEVITABLY TO THIS
CONCLUSION.  FN12 

THE RESPONDENTS CLAIM THAT TWO OF THE SECTIONS OF EMBANKMENT IN
QUESTION NOT ONLY ARE ABOVE ORDINARY HIGHWATER MARK BUT ALSO CLAIM THAT
THEY ABUT, NOT ON THE MISSISSIPPI RIVER, BUT ON A NON-NAVIGABLE
TRIBUTARY; AND THAT ANOTHER, THOUGH ALONG THE BANK OF THE RIVER, IS AT
OR ABOVE THE ORDINARY HIGH-WATER LINE.  THE GOVERNMENT DISAGREES. 
THESE ISSUES OF FACT REMAIN FOR SOLUTION BY THE DISTRICT COURT. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  RIVERS AND HARBORS ACT OF JULY 3, 1930, C. 847, 46 STAT. 918,
927. 

FN2  113 F.2D 919. 

FN3  GILMAN V. PHILADELPHIA, 3 WALL.  713, 724. 

FN4  SCRANTON V. WHEELER, 179 U.S. 141, 162. 

FN5  MORRILL V. ST. ANTHONY FALLS WATER POWER CO., 26 MINN. 222; 2
N.W. 842. 

FN6  GIBSON V. UNITED STATES, 166 U.S. 269, 271, 272. 

FN7  UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, 62; NEW
JERSEY V. SARGENT, 169 U.S. 328, 337; UNITED STATES V. APPALACHIAN
ELECTRIC POWER CO., 311 U.S. 377. 

FN8  ALABAMA V. GEORGIA, 23 HOW.  505, 515. 

FN9  SCRANTON V. WHEELER, 179 U.S. 141, 143, 144; GREENLEAF LUMBER
CO. V. GARRISON, 237 U.S. 251, 263; WILLINK V. UNITED STATES, 240 U.S.
572, 580; DELAWARE R. CO. V. WEEKS, 293 F. 114, 120; BARR V. SPALDING,
46 F.2D 798, 800; MARRET V. UNITED STATES, 82 CT. CLS. 1, 13; UNITED
STATES V. MEYER, 113 F.2D 387, 398. 

FN10  UNITED STATES V. HEYWARD, 250 U.S. 633. 

FN11  SEE CASES CITED IN NOTE 9 SUPRA. 

FN12  SEE THE CASES CITED IN NOTE 9, AND UNITED STATES V.
CHANDLERDUNBAR CO., 229 U.S. 53, 70; LEWIS BLUE POINT OYSTER CO. V.
BRIGGS, 229 U.S. 82, 86-88. 
..END :















UNITED STATES V. COOPER CORP., 312 U.S. 600 


NO. 484.  ARGUED MARCH 6, 1941.  - DECIDED MARCH 31, 1941.  - 114 F.2D
413, AFFIRMED. 


1.  WHILE THE UNITED STATES IS A JURISTIC PERSON IN THE SENSE THAT IT
CAN SUE UPON ITS CONTRACTS OR IN VINDICATION OF ITS PROPERTY RIGHTS,
THE TERM "PERSON" DOES NOT INCLUDE THE SOVEREIGN, IN COMMON USAGE, NOR,
ORDINARILY, WHEN EMPLOYED IN STATUTES.  P. 604. 

2.  THE SHERMAN ANTITRUST ACT, IN CREATING NEW RIGHTS AND REMEDIES,
ALLOWED TWO CLASSES OF ACTIONS,  - THOSE MADE AVAILABLE ONLY TO THE
GOVERNMENT, AND A RIGHT OF ACTION FOR TREBLE DAMAGES GRANTED TO REDRESS
PRIVATE INJURY.  P. 608. 

3.  SECTION 7 OF THE ACT, GRANTING THE RIGHT OF ACTION FOR TREBLE
DAMAGES, TO "ANY PERSON" INJURED IN HIS BUSINESS OR PROPERTY BY "ANY
OTHER PERSON OR CORPORATION" BY REASON OF ANYTHING FORBIDDEN BY THE
ACT, DOES NOT GIVE THE UNITED STATES A CIVIL ACTION FOR DAMAGES.  P.
606 ET SEQ. 

THE TEXT OF THE ACT, TAKEN IN ITS NATURAL AND ORDINARY SENSE, MAKES
AGAINST THE EXTENSION OF THE TERM "PERSON" TO INCLUDE THE UNITED
STATES; AND THE USUAL AIDS TO CONSTRUCTION SUPPORT THIS CONCLUSION. 

UNITED STATES V. COOPER CORPORATION ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 639, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT, 31 F.SUPP.  848, DISMISSING THE COMPLAINT IN AN
ACTION BY THE UNITED STATES TO RECOVER TREBLE DAMAGES UNDER SEC. 7 OF
THE SHERMAN ACT. 

THE WORDS "ANY PERSON," IN SEC. 7, ARE BROAD ENOUGH TO INCLUDE THE
UNITED STATES, BECAUSE IT IS A JURISTIC PERSON AND AS SUCH IS
ORDINARILY ENTITLED TO ALL LEGAL REMEDIES AVAILABLE TO ANYONE ELSE. 
DUGAN V. UNITED STATES, 3 WHEAT.  172, 181; UNITED STATES V. GEAR, 3
HOW.  120; COTTON V. UNITED STATES, 11 HOW.  228, 231. 

CORPORATIONS WOULD BE SUBJECT TO THE ACT AND NOT FOR THE PURPOSE OF
NARROWING THE SCOPE OF SEC. 7.  ANY OTHER CONSTRUCTION OF SEC. 8 WOULD
TURN WORDS OF INCLUSION INTO WORDS OF CRIPPLING LIMITATION.  MOREOVER,
IF CONGRESS HAD INTENDED TO EXCLUDE THE UNITED STATES IN SEC. 8 IT
WOULD HAVE DONE SO EXPRESSLY AND WITHOUT AMBIGUITY. 

INASMUCH AS SEC. 7 IS NOT LIMITED BY SEC. 8, THE WORDS "ANY PERSON"
IN SEC. 7 SHOULD BE GIVEN THE BROAD MEANING WHICH CONGRESS INTENDED. 
THE FACT THAT SEC. 7 DOES NOT REFER EXPRESSLY TO THE UNITED STATES IS
NOT CONTROLLING.  STANLEY V. SCHWALBY, 147 U.S. 508, 517; HELVERING V.
STOCKHOLMS ENSKILDA BANK, 293 U.S. 84, 91-92; NARDONE V. UNITED STATES,
302 U.S. 379.  THE STATUTE IS REMEDIAL AND SHOULD BE LIBERALLY
CONSTRUED.  BECAUSE IT CONFERS A GENERAL RIGHT OR REMEDY, THE UNITED
STATES IS ENTITLED TO ITS BENEFITS EVEN THOUGH NOT EXPRESSLY NAMED. 
DOLLAR SAVINGS BANK V. UNITED STATES, 19 WALL.  227, 239. 

THE FACTS THAT THE UNITED STATES IS THE LARGEST PURCHASER OF GOODS IN
THE COUNTRY AND THAT ITS PURCHASES ARE PAID FOR WITH PUBLIC FUNDS ARE
PERSUASIVE REASONS FOR GIVING TO IT THE REMEDY CREATED BY SEC. 7. 
EXPERIENCE HAS SHOWN THAT THE UNITED STATES, LIKE ANY OTHER PURCHASER,
CAN BE VICTIMIZED BY COMBINATIONS AND CONSPIRACIES.  THE OTHER REMEDIES
GIVEN BY THE ACT TO THE UNITED STATES IN ITS SOVEREIGN OR GOVERNMENTAL
CAPACITY DO NOT ENABLE THE UNITED STATES TO DEAL WITH THE PROBLEM OF
COLLUSIVE BIDDING NOR DO THEY PROTECT IT WHEN IT HAS BEEN REQUIRED BY
CIRCUMSTANCES TO PURCHASE AT COLLUSIVE AND NONCOMPETITIVE PRICES. 
THERE IS NO FORCE IN THE ARGUMENT THAT THE REMEDIES GIVEN TO THE UNITED
STATES BY WAY OF INDICTMENT OR INJUNCTION ARE EXCLUSIVE; THOSE REMEDIES
CANNOT PROTECT ITS PROPRIETARY INTERESTS OR COMPENSATE IT FOR THE
DAMAGES WHICH RESPONDENTS HAVE INFLICTED UPON IT. 

IF SEC. 8 IS TO BE REGARDED AS LIMITING OR QUALIFYING SEC. 7, THEN
THE WORDS OF SEC. 8 SHOULD BE CONSTRUED AS INCLUDING THE UNITED
STATES.  THE UNITED STATES CAN PROPERLY BE REGARDED AS A CORPORATION OR
AN ASSOCIATION EXISTING UNDER AND AUTHORIZED BY THE LAWS OF THE UNITED
STATES.  THE DEFINITION OF "PERSON" IN SEC. 8 IS OBVIOUSLY DRAWN TO
INCLUDE ALL KINDS OF CORPORATIONS AND ASSOCIATIONS.  THE PURPOSE OF THE
DEFINITION IS NOT SERVED BY DRAWING ARTIFICIAL DISTINCTIONS BETWEEN THE
UNITED STATES AND OTHER CORPORATIONS AND ASSOCIATIONS. 

THE LEGISLATIVE HISTORY OF THE ANTITRUST LAWS DOES NOT SUPPORT THE
CONCLUSION THAT CONGRESS INTENDED TO DISCRIMINATE AGAINST THE UNITED
STATES AND TO DEPRIVE IT OF A REMEDY OPEN TO EVERY OTHER JURISTIC
PERSON.  DAVIS V. PRINGLE, 268 U.S. 315, IS NOT CONTROLLING HERE. 
THERE THE UNITED STATES WAS SEEKING PRIORITY IN THE DISTRIBUTION OF THE
ASSETS OF AN INSOLVENT ESTATE.  HERE THE UNITED STATES SEEKS NOT
PRIORITY BUT EQUALITY OF TREATMENT WITH ALL OTHER JURISTIC PERSONS. 
FURTHERMORE, THE STATUTE INVOLVED IN DAVIS V. PRINGLE, SUPRA, GAVE TO
THE UNITED STATES A LIMITED RIGHT OF PRIORITY AND THE COURT REGARDED
THIS CIRCUMSTANCE AS INDICATING THAT CONGRESS DID NOT INTEND TO GIVE
ANY BROADER RIGHT OF PRIORITY.  HERE, UNLESS THE UNITED STATES CAN SUE
UNDER SEC. 7, IT IS WITHOUT A REMEDY AND CANNOT RECOVER IN ANY WAY FOR
THE DAMAGES WHICH RESPONDENTS HAVE INFLICTED UPON IT.  THE SUBSEQUENT
LEGISLATIVE HISTORY OF THE BANKRUPTCY ACT AND SUBSEQUENT DECISIONS OF
THIS COURT CREATE GRAVE DOUBT AS TO WHETHER DAVIS V. PRINGLE, SUPRA,
LAYS DOWN ANY PRINCIPLE WHICH NOW POSSESSES VITALITY. 

FAILURE OF THE UNITED STATES TO ASSERT ITS RIGHTS UNDER SEC. 7 IS NOT
ENTITLED TO ANY WEIGHT WHATSOEVER AS AN ADMINISTRATIVE INTERPRETATION
OF THE STATUTE.  UNION STOCK YARD CO. V. UNITED STATES, 308 U.S. 213,
224; LOUISVILLE & N.R. CO. V. UNITED STATES, 282 U.S. 740, 757, 759;
KANSAS CITY SO. RY. CO. V. UNITED STATES, 252 U.S. 147, 151. 

THE GOVERNMENT IS INVITING THIS COURT, AS IT HAS UNSUCCESSFULLY
INVITED THE TWO COURTS BELOW, TO UNDERTAKE, AS A JUDICIAL FUNCTION,
POWERS OF LEGISLATION. 

IF THE UNITED STATES NEEDS ANY GENERAL RIGHT TO SUE FOR DAMAGES UNDER
THE ACT, IT NEEDS AT MOST A RIGHT TO SUE FOR SIMPLE DAMAGES; NO
NECESSITY EXISTS TO PUNISH THROUGH THREEFOLD DAMAGES IN ADDITION TO
FINES, IMPRISONMENT, INJUNCTIONS AND FORFEITURES.  IT DOES NOT NEED THE
RIGHT TO SUE FOR TREBLE DAMAGES IN ORDER TO OBTAIN DESIRED PRICES ON
DEFENSE PROJECTS.  THE GOVERNMENT HAS IN ITS POSSESSION WEAPONS FAR
MORE POTENT TO ACHIEVE THAT RESULT - AS, E.G., ITS RIGHT TO THREATEN,
AND IF NEED BE TO USE, THE STATUTORY RIGHT OF TAKING OVER THE PROPERTY
OF A VENDOR WHO REFUSES TO SELL AT PRICES DEEMED BY THE GOVERNMENT TO
BE REASONABLE.  SECTION 9 OF THE ACT OF SEPT. 16, 1940, C. 720, 54
STAT. 885. 

THE GOVERNMENT MUST HAVE STATUTORY AUTHORIZATION BEFORE IT CAN SUE
FOR TREBLE DAMAGES UNDER THE SHERMAN ACT.  SUCH STATUTORY AUTHORIZATION
WAS INTENTIONALLY DENIED BY CONGRESS. 

THAT AUTHORITY TO SUE FOR TREBLE DAMAGES UNDER THE SHERMAN ACT IS
LACKING, HAS BEEN THE VIEW OF THE COURTS, THE DEPARTMENT OF JUSTICE,
AND CONGRESS, UNIFORMLY, FOR FIFTY YEARS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE TOOK THIS CASE BECAUSE IT PRESENTS THE IMPORTANT QUESTION WHETHER
THE UNITED STATES MAY MAINTAIN AN ACTION FOR TREBLE DAMAGES UNDER SEC.
7 OF THE SHERMAN ACT.  FN1 

THE COMPLAINT CHARGED THE RESPONDENTS HAD ILLEGALLY COMBINED AND
CONSPIRED TO FIX COLLUSIVE PRICES OF ARTICLES PURCHASED BY THE UNITED
STATES; ALLEGED THE MONEY DAMAGE INFLICTED UPON THE UNITED STATES
THEREBY, AND SOUGHT JUDGMENT FOR THREE TIMES THAT AMOUNT.  THE DISTRICT
COURT GRANTED A MOTION TO DISMISS THE COMPLAINT ON THE GROUND THAT THE
UNITED STATES IS NOT A PERSON AS THE TERM IS USED IN SEC. 7 OF THE
SHERMAN ACT.  FN2  THE CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT. 
FN3 


"ANY PERSON WHO SHALL BE INJURED IN HIS BUSINESS OR PROPERTY BY ANY
OTHER PERSON OR CORPORATION BY REASON OF ANYTHING FORBIDDEN OR DECLARED
TO BE UNLAWFUL BY THIS ACT, MAY SUE THEREFOR IN ANY CIRCUIT COURT OF
THE UNITED STATES IN THE DISTRICT IN WHICH THE DEFENDANT RESIDES OR IS
FOUND, WITHOUT RESPECT TO THE AMOUNT IN CONTROVERSY, AND SHALL RECOVER
THREE FOLD THE DAMAGES BY HIM SUSTAINED, AND THE COSTS OF SUIT,
INCLUDING A REASONABLE ATTORNEY'S FEE." 

THE UNITED STATES IS A JURISTIC PERSON IN THE SENSE THAT IT HAS
CAPACITY TO SUE UPON CONTRACTS MADE WITH IT OR IN VINDICATION OF ITS
PROPERTY RIGHTS.  THE SHERMAN ACT, HOWEVER, CREATED NEW RIGHTS AND
REMEDIES WHICH ARE AVAILABLE ONLY TO THOSE ON WHOM THEY ARE CONFERRED
BY THE ACT.  FN4 THE PRECISE QUESTION FOR DECISION, THEREFORE, IS
WHETHER, BY THE USE OF THE PHRASE "ANY PERSON," CONGRESS INTENDED TO
CONFER UPON THE UNITED STATES THE RIGHT TO MAINTAIN AN ACTION FOR
TREBLE DAMAGES AGAINST A VIOLATOR OF THE ACT. 

SINCE, IN COMMON USAGE, THE TERM "PERSON" DOES NOT INCLUDE THE
SOVEREIGN, STATUTES EMPLOYING THE PHRASE ARE ORDINARILY CONSTRUED TO
EXCLUDE IT.  FN5  BUT THERE IS NO HARD AND FAST RULE OF EXCLUSION.  THE
PURPOSE, THE SUBJECT MATTER, THE CONTEXT, THE LEGISLATIVE HISTORY, AND
THE EXECUTIVE INTERPRETATION OF THE STATUTE ARE AIDS TO CONSTRUCTION
WHICH MAY INDICATE AN INTENT, BY THE USE OF THE TERM, TO BRING STATE OR
NATION WITHIN THE SCOPE OF THE LAW.  FN6 

THE GOVERNMENT ADMITS THAT OFTEN THE WORD "PERSON" IS USED IN SUCH A
SENSE AS NOT TO INCLUDE THE SOVEREIGN BUT URGES THAT WHERE, AS IN THE
PRESENT INSTANCE, ITS WIDER APPLICATION IS CONSISTENT WITH, AND TENDS
TO EFFECTUATE, THE PUBLIC POLICY EVIDENCED BY THE STATUTE, THE TERM
SHOULD BE HELD TO EMBRACE THE GOVERNMENT.  AND IT STRONGLY URGES THAT
ALL THE CONSIDERATIONS WHICH MOVED CONGRESS TO CONFER THE RIGHT TO
RECOVER DAMAGES UPON INDIVIDUALS AND CORPORATIONS INJURED BY VIOLATIONS
OF THE ACT APPLY WITH EQUAL FORCE TO THE UNITED STATES, WHICH, AS A
LARGE PROCURER OF GOODS AND SERVICES, IS AS LIKELY TO BE INJURED BY THE
DENOUNCED COMBINATIONS AND MONOPOLIES AS IS A NATURAL OR CORPORATE
PERSON.  WE ARE ASKED, IN THIS VIEW, SO TO CONSTRUE THE ACT AS NOT TO
DENY TO THE GOVERNMENT WHAT PUBLIC POLICY IS THOUGHT TO REQUIRE. 

DECISION IS NOT TO BE REACHED BY A STRICT CONSTRUCTION OF THE WORDS
OF THE ACT, NOR BY THE APPLICATION OF ARTIFICIAL CANONS OF
CONSTRUCTION.  ON THE CONTRARY, WE ARE TO READ THE STATUTORY LANGUAGE
IN ITS ORDINARY AND NATURAL SENSE, AND IF DOUBTS REMAIN, RESOLVE THEM
IN THE LIGHT, NOT ONLY OF THE POLICY INTENDED TO BE SERVED BY THE
ENACTMENT, BUT, AS WELL, BY ALL OTHER AVAILABLE AIDS TO CONSTRUCTION. 
BUT IT IS NOT OUR FUNCTION TO ENGRAFT ON A STATUTE ADDITIONS WHICH WE
THINK THE LEGISLATURE LOGICALLY MIGHT OR SHOULD HAVE MADE.  FN7 

THE RECENT EXPRESSIONS OF THIS COURT IN TIGNER V. TEXAS, 310 U.S.
141, 148, 149, WARN THAT IT IS NOT FOR THE COURTS TO INDULGE IN THE
BUSINESS OF POLICY-MAKING IN THE FIELD OF ANTITRUST LEGISLATION. 
CONGRESS HAS NOT LEFT US AT LARGE TO DEVISE EVERY FEASIBLE MEANS FOR
PROTECTING THE GOVERNMENT AS A PURCHASER.  IT IS THE FUNCTION OF
CONGRESS TO FASHION MEANS TO THAT END, AND CONGRESS HAS DISCHARGED THIS
DUTY FROM TIME TO TIME ACCORDING TO ITS OWN WISDOM.  OUR FUNCTION ENDS
WITH THE ENDEAVOR TO ASCERTAIN FROM THE WORDS USED, CONSTRUED IN THE
LIGHT OF THE RELEVANT MATERIAL, WHAT WAS IN FACT THE INTENT OF
CONGRESS. 

1.  WITHOUT GOING BEYOND THE WORDS OF THE SECTION, THE USE OF THE
PHRASE "ANY PERSON" IS INSUFFICIENT TO AUTHORIZE AN ACTION BY THE
GOVERNMENT.  THIS CONCLUSION IS SUPPORTED BY THE FACT THAT IF THE
PURPOSE WAS TO INCLUDE THE UNITED STATES, "THE ORDINARY DIGNITIES OF
SPEECH WOULD HAVE LED" TO ITS MENTION BY NAME.  FN8  IT IS SUPPORTED
ALSO BY THE COLLOCATION OF THE PHRASE IN THE SECTION.  THE PROVISION IS
THAT "ANY PERSON" INJURED BY VIOLATION OF THE ACT "BY ANY OTHER PERSON
OR CORPORATION" MAY MAINTAIN AN ACTION FOR TREBLE DAMAGES AGAINST THE
LATTER.  IT IS HARDLY CREDIBLE THAT CONGRESS USED THE TERM "PERSON" IN
DIFFERENT SENSES IN THE SAME SENTENCE.  YET, UNLESS IT DID, THE UNITED
STATES WOULD NOT ONLY BE ENTITLED TO SUE BUT WOULD BE LIABLE TO SUIT
FOR TREBLE DAMAGES.  THE MORE NATURAL INFERENCE, WE THINK, IS THAT THE
MEANING OF THE WORD WAS IN BOTH USES LIMITED TO WHAT ARE USUALLY KNOWN
AS NATURAL AND ARTIFICIAL PERSONS, THAT IS, INDIVIDUALS AND
CORPORATIONS.  IN ADDITION, THE CONCLUDING WORDS OF THE SECTION GIVE
THE INJURED PARTY, AS PART OF HIS COSTS, A REASONABLE ATTORNEY'S FEE,
A PROVISION MORE APPROPRIATE FOR A PRIVATE LITIGANT THAN FOR THE
UNITED STATES. 

2.  THE CONNOTATION OF A TERM IN ONE PORTION OF AN ACT MAY OFTEN BE
CLARIFIED BY REFERENCE TO ITS USE IN OTHERS.  THE WORD "PERSON" IS USED
IN SEVERAL SECTIONS OTHER THAN SEC. 7.  IN SECS. 1, 2, AND 3 THE PHRASE
DESIGNATING THOSE LIABLE CRIMINALLY IS "EVERY PERSON WHO SHALL" ETC.
IN EACH INSTANCE IT IS OBVIOUS THAT WHILE THE TERM "PERSON" MAY WELL
INCLUDE A CORPORATION IT CANNOT EMBRACE THE UNITED STATES.  IN SEC. 8
CONGRESS ATTEMPTED TO MAKE CLEAR THAT THE TERM "PERSON" IS TO INCLUDE A
CORPORATION.  THE PROVISION IS "THAT THE WORD 'PERSON,' OR 'PERSONS,'
WHEREVER USED IN THIS ACT SHALL BE DEEMED TO INCLUDE CORPORATIONS AND
ASSOCIATIONS EXISTING UNDER OR AUTHORIZED BY THE LAWS OF EITHER THE
UNITED STATES, THE LAWS OF ANY OF THE TERRITORIES, THE LAWS OF ANY
STATE, OR THE LAWS OF ANY FOREIGN COUNTRY."  THE VERY FACT, HOWEVER,
THAT THIS SWEEPING INCLUSION OF VARIOUS ENTITIES WAS THOUGHT IMPORTANT
TO PRECLUDE ANY NARROW INTERPRETATION EMPHASIZES THE FACT THAT IF THE
UNITED STATES WAS INTENDED TO BE INCLUDED CONGRESS WOULD HAVE SO
PROVIDED EXPRESSLY.  WE MAY SAY IN PASSING THAT THE ARGUMENT THAT THE
UNITED STATES MAY BE TREATED AS A CORPORATION ORGANIZED UNDER ITS OWN
LAWS, THAT IS, UNDER THE CONSTITUTION AS THE FUNDAMENTAL LAW, SEEMS SO
STRAINED AS NOT TO MERIT SERIOUS CONSIDERATION.  IT IS FAIR TO ASSUME
THAT THE TERM "PERSON," IN THE ABSENCE OF AN INDICATION TO THE
CONTRARY, WAS EMPLOYED BY THE CONGRESS THROUGHOUT THE ACT IN THE SAME,
AND NOT IN DIFFERENT, SENSES. 

3.  THE SCHEME AND STRUCTURE OF THE LEGISLATION ARE LIKEWISE
IMPORTANT TO A PROPER ASCERTAINMENT OF ITS PURPOSE AND INTENT. 
ACTS DENOUNCED IN THOSE SECTIONS RESPECTIVELY.  SECTION 4 GIVES
JURISDICTION TO THE FEDERAL COURTS OF PROCEEDINGS BY THE GOVERNMENT TO
RESTRAIN VIOLATIONS OF THE ACT AND IMPOSES UPON UNITED STATES ATTORNEYS
THE DUTY TO INSTITUTE EQUITY PROCEEDINGS TO THAT END.  SECTION 5
REGULATES SERVICE IN SUCH SUITS.  SECTION 6 AUTHORIZES SEIZURE, IN THE
COURSE OF INTERSTATE TRANSPORTATION, OF GOODS OWNED UNDER ANY CONTRACT
OR PURSUANT TO ANY CONSPIRACY MADE ILLEGAL BY THE STATUTE.    THUS FAR
THE ACT DEALS IN DETAIL WITH THE CRIMINAL AND CIVIL REMEDIES OF THE
GOVERNMENT IN VINDICATION OF THE POLICY OF THE LEGISLATION.  THERE
FOLLOWS SEC. 7, THE ONLY OTHER SUBSTANTIVE SECTION, GIVING A CIVIL
ACTION FOR AN INJURY TO PROPERTY RIGHTS. 

IT SEEMS EVIDENT THAT THE ACT ENVISAGED TWO CLASSES OF ACTIONS,  -
THOSE MADE AVAILABLE ONLY TO THE GOVERNMENT, WHICH ARE FIRST PROVIDED
IN DETAIL, AND, IN ADDITION, A RIGHT OF ACTION FOR TREBLE DAMAGES
GRANTED TO REDRESS PRIVATE INJURY.  IF THIS BE THE FAIR CONSTRUCTION OF
THE ACT, THE COURT'S TASK IS FINISHED WHEN IT GIVES EFFECT TO THE
PURPOSES OF THE LAW, EVIDENCED BY THE VARIOUS REMEDIES IT AFFORDS FOR
DIFFERENT SITUATIONS.  THOUGH THE LAW GAVE A REMEDY BY WAY OF
INJUNCTION AT THE SUIT OF THE UNITED STATES, WE WERE PRESSED TO SAY
THAT A PRIVATE PERSON SHOULD HAVE THE SAME REMEDY.  WE WERE COMPELLED
TO ANSWER THAT CONGRESS HAD NOT SEEN FIT SO TO PROVIDE.  FN9  FOR THE
LIKE REASONS WE CANNOT HOLD THAT SINCE A PRIVATE PURCHASER IS GIVEN A
REMEDY FOR HIS LOSSES IN TREBLE DAMAGES, THE UNITED STATES SHOULD BE
AWARDED THE SAME REMEDY. 

4.  SUPPLEMENTAL LEGISLATION LENDS SUPPORT TO THE VIEW THAT CONGRESS
HAD IN MIND THE DISTINCTION BETWEEN PUBLIC AND PRIVATE REMEDIES AND DID
NOT INTEND TO CONFER A RIGHT OF ACTION ON THE UNITED STATES BY THE USE
OF THE PHRASE "ANY PERSON" IN SEC. 7.  THE ANTITRUST PROVISIONS OF THE
WILSON TARIFF ACT  FN10  FOLLOW THE SAME PATTERN AS THE SHERMAN ACT. 
IMPORTING ARTICLES FROM A FOREIGN COUNTRY AND DECLARES THAT EVERY
PERSON GUILTY OF VIOLATION OF ITS TERMS SHALL BE PUNISHED.  SECTION 74
CONFERS JURISDICTION UPON THE FEDERAL COURTS AND AUTHORIZES PROCEEDINGS
IN EQUITY BY THE UNITED STATES TO RESTRAIN SUCH ACTS.  SECTION 76
PROVIDES FOR SEIZURE AND FORFEITURE OF PROPERTY IMPORTED INTO THE
UNITED STATES CONTRARY TO LAW AND SEC. 77 GIVES AN ACTION FOR TREBLE
DAMAGES TO ANY PERSON AGAINST ANY OTHER PERSON OR CORPORATION IN THE
EXACT WORDS OF SEC. 7 OF THE SHERMAN ACT. 

THE ANTIDUMPING PROVISIONS OF THE REVENUE ACT OF 1916  FN12  MAKE IT
A CRIMINAL OFFENSE FOR "ANY PERSON" IMPORTING ARTICLES FROM A FOREIGN
COUNTRY TO SELL, OR CAUSE TO BE IMPORTED OR SOLD, SUCH ARTICLES WITHIN
THE UNITED STATES AT SUBSTANTIALLY LESS THAN THE MARKET VALUE OF SUCH
ARTICLES AT THE TIME OF EXPORTATION IN THE PRINCIPAL MARKETS OF THE
COUNTRY OF PRODUCTION, ETC.  THEY FURTHER DECLARE THAT ANY PERSON
INJURED IN HIS BUSINESS OR PROPERTY BY ANY VIOLATION MAY SUE THEREFOR
IN THE UNITED STATES COURTS AND RECOVER THREEFOLD DAMAGES AND COSTS,
INCLUDING A REASONABLE ATTORNEY'S FEE.  IT MUST BE OBVIOUS THAT THE
UNITED STATES CANNOT BE EMBRACED BY THE PHRASE "ANY PERSON" THERE
USED. 

WHEN CONGRESS CAME TO SUPPLEMENT THE SHERMAN ACT BY THE CLAYTON ACT,
FN13  IT INCLUDED IN THE LATTER A SIGNIFICANT SECTION BEARING UPON THE
QUESTION UNDER CONSIDERATION.  DOUBTS HAD ARISEN AS TO WHETHER ISSUES
ADJUDICATED IN A CRIMINAL PROCEEDING OR A SUIT IN EQUITY BROUGHT BY THE
UNITED STATES SHOULD BE TAKEN AS CONCLUDED IN AN ACTION FOR TREBLE
DAMAGES SUBSEQUENTLY BROUGHT BY AN INJURED PARTY.  BY SEC. 5 OF THE
CLAYTON ACT IT WAS SOUGHT TO GIVE SUCH ADJUDICATION THAT EFFECT.  THE

"A FINAL JUDGMENT OR DECREE HEREAFTER RENDERED IN ANY CRIMINAL
PROSECUTION OR IN ANY SUIT OR PROCEEDING IN EQUITY BROUGHT BY OR ON
BEHALF OF THE UNITED STATES UNDER THE ANTITRUST LAWS TO THE EFFECT THAT
A DEFENDANT HAS VIOLATED SAID LAWS SHALL BE PRIMA FACIE EVIDENCE
AGAINST SUCH DEFENDANT IN ANY SUIT OR PROCEEDING BROUGHT BY ANY OTHER
PARTY AGAINST SUCH DEFENDANT UNDER SAID LAWS AS TO ALL MATTERS
RESPECTING WHICH SAID JUDGMENT OR DECREE WOULD BE AN ESTOPPEL AS
BETWEEN THE PARTIES THERETO:  PROVIDED, THIS SECTION SHALL NOT APPLY TO
CONSENT JUDGMENTS OR DECREES ENTERED BEFORE ANY TESTIMONY HAS BEEN
TAKEN." 

IMMEDIATELY FOLLOWING THIS PROVISION THE SECTION CONTINUES: 

"WHENEVER ANY SUIT OR PROCEEDING IN EQUITY OR CRIMINAL PROSECUTION IS
INSTITUTED BY THE UNITED STATES TO PREVENT, RESTRAIN OR PUNISH
VIOLATIONS OF ANY OF THE ANTITRUST LAWS, THE RUNNING OF THE STATUTE OF
LIMITATIONS IN RESPECT OF EACH AND EVERY PRIVATE RIGHT OF ACTION
ARISING UNDER SAID LAWS AND BASED IN WHOLE OR IN PART ON ANY MATTER
COMPLAINED OF IN SAID SUIT OR PROCEEDING SHALL BE SUSPENDED DURING THE
PENDENCY THEREOF." 

HERE AGAIN IT SEEMS CLEAR THAT CONGRESS RECOGNIZED THE DISTINCTION
BETWEEN PROCEEDINGS INITIATED BY THE GOVERNMENT TO VINDICATE PUBLIC
RIGHTS AND ACTIONS BY PRIVATE LITIGANTS FOR DAMAGES. 

IT SHOULD BE NOTED THAT SEC. 1 OF THE CLAYTON ACT AGAIN DEFINED THE
TERM "PERSON" EXACTLY AS IT WAS DEFINED BY SEC. 8 OF THE SHERMAN ACT,
AND SEC. 4 AGAIN ENACTED THAT ANY PERSON INJURED BY A VIOLATION MIGHT
RECOVER TREBLE DAMAGES TOGETHER WITH A REASONABLE ATTORNEY'S FEE. 

5.  THERE HAS BEEN A CONSIDERABLE BODY OF JUDICIAL EXPRESSION TO THE
EFFECT THAT SEC. 7 AUTHORIZES AN ACTION FOR DAMAGES ONLY BY PRIVATE
SUITORS AND NOT BY THE GOVERNMENT.  FN14  WHILE NONE OF THE CASES
PRESENTED THE EXACT QUESTION HERE INVOLVED, THE STATEMENTS BEARING ON
THE SUBJECT EXHIBIT A UNIFORM OPINION CONTRARY TO THE GOVERNMENT'S
PRESENT CONTENTION. 

6.  THE LEGISLATIVE HISTORY IS PERSUASIVE THAT THE SHERMAN ACT WAS
NOT INTENDED TO GIVE THE UNITED STATES A CIVIL ACTION FOR DAMAGES. 
SENATOR SHERMAN, ON MARCH 18, 1890, INTRODUCED A BILL WHICH, IN SEC. 1,
PROVIDED THAT THE UNITED STATES MIGHT BRING VARIOUS CIVIL ACTIONS AND,
IN SEC. 2, THAT "ANY PERSON" SHOULD BE ENTITLED TO SUE ANY "PERSON" OR
"CORPORATION" FOR DOUBLE DAMAGES.  FN15 

IN THE DISCUSSION OF THE BILL IT WAS POINTED OUT THAT SEC. 1
AUTHORIZED THE UNITED STATES TO BRING CIVIL ACTIONS INCLUDING THOSE FOR
SIMPLE DAMAGES AND THAT, UNDER SEC. 2, PRIVATE PARTIES WERE ENTITLED TO
SUE FOR DOUBLE DAMAGES.  SENATOR SHERMAN STATED THAT SEC. 2 GAVE A
RIGHT TO SUE FOR DOUBLE DAMAGES ONLY TO PRIVATE PARTIES AND NOT TO THE
UNITED STATES.  HE STATED THAT THE CIVIL SUIT BY THE UNITED STATES
AUTHORIZED BY SEC. 1 MIGHT BE FOR AN OUSTER OF THE POWER OF THE
CORPORATION, FOR DAMAGES, OR IN QUO WARRANTO, AND ADDED:  "BUT THE
SECOND SECTION PROVIDES PURELY A PERSONAL REMEDY, A CIVIL SUIT ALSO BY
CITIZENS OF THE UNITED STATES."  FN16 

AS IS WELL KNOWN, AFTER SENATOR SHERMAN'S BILL HAD BEEN AMENDED,
SENATOR HOAR REWROTE MOST OF THE BILL.  IN SO DOING HE ELIMINATED SEC.
1 WITH ITS PROVISION FOR CIVIL SUITS BY THE UNITED STATES AND
SUBSTITUTED SECS. 1, 2, 3, 4, AND 6, SPECIFYING THE REMEDIES, CIVIL,
CRIMINAL, AND BY WAY OF FORFEITURE, AVAILABLE TO THE UNITED STATES.  IN
THAT REVISION HE RETAINED, WITH SLIGHT CHANGE, SEC. 2 OF THE BILL,
INCREASING THE RECOVERABLE DAMAGES TO TREBLE INSTEAD OF DOUBLE, AND
RENUMBERED THE SECTION AS SEC. 7.  IN THIS FORM THE BILL WAS ADOPTED. 

AS ALREADY STATED, THE LANGUAGE OF SEC. 7 OF THE SHERMAN ACT WAS
REPEATED IN LATER STATUTES EXTENDING THE ANTITRUST LAWS ALTHOUGH IN THE
MEANTIME THIS AND OTHER COURTS HAD EXPRESSED THE VIEW THAT THE SECTION
ACCORDED THE GOVERNMENT NO RIGHT OF SUIT FOR TREBLE DAMAGES.  WHEN THE
CLAYTON ACT WAS BEFORE THE SENATE, SENATOR CULBERSON, CHAIRMAN OF THE
COMMITTEE WHICH REPORTED THE BILL, ENUMERATED THE USUAL TYPES OF ACTION
PROSECUTED UNDER THE SHERMAN ACT,  - CRIMINAL PROSECUTIONS, SUITS IN
EQUITY, AND ACTIONS FOR DAMAGES, AND STATED WITH RESPECT TO GOVERNMENT
SUITS UNDER THE SHERMAN ACT AND THE CLAYTON ACT:  "THERE IS NO SUIT
AUTHORIZED BY ANY OF THESE STATUTES EXCEPT A CRIMINAL PROSECUTION OR A
SUIT IN EQUITY.  THE UNITED STATES DOES NOT BRING A SUIT AT LAW FOR
DAMAGES."  FN17 

IN 1926 THE ATTORNEY GENERAL, IN RESPONSE TO A SENATE RESOLUTION
ASKING FOR INFORMATION WITH RESPECT TO CASES INSTITUTED UNDER THE FIRST
SEVEN SECTIONS OF THE SHERMAN ACT, WROTE:  "UNDER SECTION 7, WHICH
GIVES TO PRIVATE PERSONS THE RIGHT TO SUE FOR INJURIES ARISING UNDER
THE ACT, A NUMBER OF ACTIONS HAVE BEEN INSTITUTED.  THE UNITED STATES,
HOWEVER, UNDER THE STATUTE IS NOT A PARTY TO SUITS UNDER THAT

SENATOR O'MAHONEY HAS INTRODUCED A BILL, WHICH IS PENDING AS S. 2719,
PREPARED JOINTLY BY HIM AND BY THE ASSISTANT ATTORNEY GENERAL IN CHARGE
OF ANTITRUST MATTERS.  ON JUNE 28, 1939, THE SENATOR STATED THAT THE
PURPOSE OF THE BILL WAS TO PROVIDE MORE EFFECTIVE CIVIL REMEDIES.  IN
THE COURSE OF HIS STATEMENT HE SAID:  "THERE IS ONLY ONE OTHER REMEDY
WORTH MENTIONING AVAILABLE UNDER EXISTING LAW TO THE DEPARTMENT OF
JUSTICE - THE CIVIL ACTION FOR AN INJUNCTION.  IN ADDITION, THERE IS
THE ACTION IN DAMAGES BY A PRIVATE PERSON WHO HAS BEEN INJURED. 
NEITHER OF THESE REMEDIES IS EFFECTIVE."  HE FURTHER STATED:  "THE BILL
PERMITS THE UNITED STATES, IN EFFECT, TO BRING A SUIT FOR DAMAGES
AGAINST AN OFFENDING CORPORATION AND AGAINST ITS INDIVIDUAL DIRECTORS
AND OFFICERS."  FN19 

7.  IT IS SIGNIFICANT THAT, IN THE LIGHT OF THE EXPRESSIONS BY THE
COURTS, THE SUPPLEMENTAL LEGISLATION, AND THE LEGISLATIVE HISTORY, NO
ACTION HAS EVER BEEN BROUGHT BY THE UNITED STATES UNDER SEC. 7 IN THE
FIFTY YEARS DURING WHICH THE STATUTE HAS BEEN IN FORCE UNTIL THE
PRESENT ACTION WAS INSTITUTED.  DOWN TO THE CLOSE OF THE YEAR 1937, 428
CRIMINAL PROSECUTIONS AND SUITS IN EQUITY HAD BEEN INSTITUTED BY THE
GOVERNMENT.  FN20  DOWN TO DECEMBER, 1939, 103 CIVIL SUITS HAD BEEN
INSTITUTED BY PRIVATE PERSONS, INCLUDING CORPORATIONS.  FN21  IN THE
MEANTIME THE WORLD WAR INTERVENED WITH THE GOVERNMENT A PURCHASER OF
ENORMOUS QUANTITIES OF MATERIAL AND SUPPLIES.  THEN, AS NOW, THE
COMPLAINT WAS PREVALENT THAT AGREEMENTS AND CONSPIRACIES EXISTED TO FIX
AND MAINTAIN PRICES OF MATERIALS NEEDED BY THE GOVERNMENT.  AND
THROUGHOUT THE LIFE OF THE LEGISLATION ABLE AND VIGILANT OFFICIALS
DEVOTED TO ENFORCEMENT OF THE POLICY OF THE SHERMAN ACT HAVE NOT BEEN
WANTING. 

IN THESE CIRCUMSTANCES THE CONVICTION THAT NO RIGHT TO SUE HAD BEEN
GIVEN THE GOVERNMENT, RATHER THAN A SUPINE NEGLECT TO RESORT TO AN
AVAILABLE REMEDY, SEEMS TO US THE TRUE EXPLANATION OF THE FACT THAT NO
SUCH ACTIONS HAVE BEEN INSTITUTED BY THE UNITED STATES. 

IN SUMMARY, WE ARE OF OPINION THAT THE TEXT OF THE ACT, TAKEN IN ITS
NATURAL AND ORDINARY SENSE, MAKES AGAINST THE EXTENSION OF THE TERM
"PERSON" TO INCLUDE THE UNITED STATES, AND THAT THE USUAL AIDS TO
CONSTRUCTION, TAKEN TOGETHER, INSTEAD OF INDUCING THE CONTRARY
CONCLUSION, GO TO SUPPORT THE VIEW THAT CONGRESS DID NOT USE THE WORD
IN THE SENSE FOR WHICH THE GOVERNMENT CONTENDS. 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF JULY 2, 1890, C. 647, 26 STAT. 209, 210. 

FN2  31 F.SUPP.  848. 

FN3  114 F.2D 413. 

FN4  WILDER MFG. CO. V. CORN PRODUCTS REFINING CO., 236 U.S. 165,
174; FLEITMANN V. WELSBACH STREET LIGHTING CO., 240 U.S. 27, 29; GEDDES
V. ANACONDA COPPER MINING CO., 254 U.S. 590, 593. 

FN5  UNITED STATES V. FOX, 52 N.Y. 530; ID., 94 U.S. 315, 321. 

FN6  SEE LEVY V. MCCARTEE, 6 PET. 102, 110; UNITED STATES V. FREEMAN,
3 HOW.  556, 565; OHIO V. HELVERING, 292 U.S. 360, 370; NARDONE V.
UNITED STATES, 302 U.S. 379. 

FN7  THE PEDRO, 175 U.S. 354, 364; DEWEY V. UNITED STATES, 178 U.S.
510, 519, 520; PIRIE V. CHICAGO TITLE & T. CO., 182 U.S. 438, 451;
WHITE V. UNITED STATES, 191 U.S. 545, 551, 552; EBERT V. POSTON, 266
U.S. 548, 554; HELVERING V. OREGON LIFE INS. CO., 311 U.S. 267, 272. 

FN8  DAVIS V. PRINGLE, 268 U.S. 315, 318. 

FN9  MINNESOTA V. NORTHERN SECURITIES CO., 194 U.S. 48, 71; PAINE
LUMBER CO. V. NEAL, 244 U.S. 459.  THE ACT WAS AMENDED TO AUTHORIZE
SUITS FOR INJUNCTIONS BY PRIVATE LITIGANTS.  SEE THE CLAYTON ACT OF
OCTOBER 15, 1914, C. 323, SEC. 16, 38 STAT. 730, 737; 15 U.S.C. SEC.
26. 

FN10  ACT OF AUGUST 27, 1894, C. 349, 28 STAT. 509, AS AMENDED BY ACT
OF FEB. 12, 1913, C. 40, 37 STAT. 667; 15 U.S.C. SEC. 8. 

FN11  28 STAT. 570, 37 STAT. 667. 

FN12  ACT OF SEPTEMBER 8, 1916, C. 463, 39 STAT. 756, 798, 15 U.S.C.
SEC. 72. 

FN13  ACT OF OCTOBER 15, 1914, C. 323, 38 STAT. 730. 

FN14  PIDCOCK V. HARRINGTON, 64 F. 821, 822; LOWENSTEIN V. EVANS, 69
F. 908, 911; GREER, MILLS & CO. V. STOLLER, 77 F. 1, 3; CITY OF ATLANTA
V. CHATTANOOGA FOUNDRY CO., 101 F. 900, 904; STANDARD SANITARY MFG. CO.
V. UNITED STATES, 226 U.S. 20, 52; UNITED STATES V. PATTERSON, 201 F.
697, 714; GENERAL INVESTMENT CO. V. LAKE SHORE & MICHIGAN SO. RY. CO.,
260 U.S. 261, 286; GLENN COAL CO. V. DICKINSON FUEL CO., 72 F.2D 885,
889; QUEMOS THEATRE CO. V. WARNER BROS. PICTURES, 35 F.SUPP.  949, 950;
TIGNER V. TEXAS, 310 U.S. 141, 148. 

FN15  "SECTION 1: 

"  ...  AND THE CIRCUIT COURT OF THE UNITED STATES SHALL HAVE
ORIGINAL JURISDICTION OF ALL SUITS OF A CIVIL NATURE AT COMMON LAW OR
IN EQUITY ARISING UNDER THIS SECTION, AND TO ISSUE ALL REMEDIAL
PROCESS, ORDERS, OR WRITS PROPER AND NECESSARY TO ENFORCE ITS
PROVISIONS.  AND THE ATTORNEY-GENERAL AND THE SEVERAL DISTRICT
ATTORNEYS ARE HEREBY DIRECTED, IN THE NAME OF THE UNITED STATES, TO
COMMENCE AND PROSECUTE ALL SUCH CASES TO FINAL JUDGMENT AND
EXECUTION." 

"SECTION 2: 

"THAT ANY PERSON OR CORPORATION INJURED OR DAMNIFIED BY SUCH
ARRANGEMENT, CONTRACT, AGREEMENT, TRUST, OR COMBINATION DEFINED IN THE
FIRST SECTION OF THIS ACT MAY SUE FOR AND RECOVER, IN ANY COURT OF THE
UNITED STATES OF COMPETENT JURISDICTION, WITHOUT RESPECT TO THE AMOUNT
INVOLVED, OF ANY PERSON OR CORPORATION A PARTY TO A COMBINATION
DESCRIBED IN THE FIRST SECTION OF THIS ACT, TWICE THE AMOUNT OF DAMAGES
SUSTAINED AND THE COSTS OF THE SUIT, TOGETHER WITH A REASONABLE
ATTORNEY'S FEE." 

FN16  21 CONG. REC. 2563-2564. 

FN17  51 CONG. REC. 13898.  STATEMENTS BY MEMBERS OF THE HOUSE
JUDICIARY COMMITTEE INDICATE A SIMILAR VIEW:  51 CONG. REC. 9079,
9490.  REPRESENTATIVE WEBB THE CHAIRMAN OF THAT COMMITTEE MENTIONED THE
CIVIL REMEDIES AVAILABLE UNDER THE BILL AS TREBLE DAMAGE ACTIONS BY
PERSONS, SUITS BY THE FEDERAL TRADE COMMISSION, SUITS BY THE UNITED
STATES FOR INJUNCTIONS, AND SIMILAR SUITS BY PERSONS.  HE THEN SAID
"CERTAINLY THE REMEDIES ARE CUMULATIVE.  THE REMEDIES PILE UP, AND ALL
OF THE REMEDIES ARE OPEN TO THE INDIVIDUAL AND TO THE GOVERNMENT IN A
SUIT."  51 CONG. REC. 16276.  BUT OBVIOUSLY HE MEANT THAT THE REMEDIES
GIVEN THE PUBLIC AND THE INDIVIDUAL RESPECTIVELY WERE CUMULATIVE, AS
THEY CLEARLY ARE; FOR IT IS PLAIN THE REMEDY GIVEN THE FEDERAL TRADE
COMMISSION IS NOT AFFORDED TO THE INDIVIDUAL.    FN18  SEN. DOC. NO.
79, 69TH CONG., 1ST SESS., P. 1.    FN19  84 CONG. REC. 8192. 

FN20  "FEDERAL ANTITRUST LAWS," PUBLISHED BY THE DEPARTMENT OF
JUSTICE JANUARY 1938. 

FN21  49 YALE LAW JOURNAL 296. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

IN ORDER TO GIVE PURCHASERS OF GOODS AN OPPORTUNITY TO BUY THEM AT
PRICES FIXED BY COMPETITIVE TRADE, THE SHERMAN ACT MADE IT ILLEGAL TO
FIX PRICES BY COMBINATION OR CONSPIRACY.  IT IS DIFFICULT FOR ME TO
BELIEVE THAT CONGRESS DID NOT INTEND TO GIVE EQUAL PROTECTION TO ALL
PURCHASERS SIMILARLY INJURED.  IN MY JUDGMENT, NO LANGUAGE OF THAT ACT,
NOTHING IN ITS HISTORY, AND NO ARGUMENT NOW PRESENTED FOR OUR
CONSIDERATION MAKES NECESSARY THE CONCLUSION THAT CONGRESS INTENDED TO
DISCRIMINATE IN FAVOR OF SOME PURCHASERS AND AGAINST OTHERS.  IT WOULD
REQUIRE CLEAR AND UNEQUIVOCAL STATUTORY LANGUAGE TO PERSUADE ME THAT
CONGRESS INTENDED TO GRANT A REMEDY TO ALL EXCEPT ONE OF THOSE WHO WERE
INJURED BY TRUST PRICES - THE "ALL" INCLUDING EVERY NATURAL AND
ARTIFICIAL PERSON, EVERY CORPORATION AND ASSOCIATION,  FN1  FOREIGN AND
DOMESTIC, AND THE SINGLE EXCEPTION BEING THE UNITED STATES, WHICH BUYS
MORE GOODS AND SERVICES THAN ANY OTHER SINGLE PURCHASER.  FN2  NO SUCH
CLEAR AND UNEQUIVOCAL STATUTORY LANGUAGE EXISTS.  AND NO PLAUSIBLE
REASON HAS BEEN HAZARDED TO PROVE THAT THE GOVERNMENT AS A PURCHASER OF
GOODS NEEDS LESS PROTECTION FROM UNLAWFUL COMBINATIONS THAN DO OTHER
BUYERS.  FN3  MANY DEPLORABLE INSTANCES IN OUR HISTORY, IN FACT,
INDICATE THE CONTRARY.  CONGRESS, NO DOUBT STIMULATED TO ACTION BY
THESE HISTORICAL OCCURRENCES, HAS BY NUMEROUS ENACTMENTS RECOGNIZED THE
URGENT NECESSITY FOR SAFEGUARDING GOVERNMENTAL PURCHASES OF GOODS AND
SERVICES AGAINST UNFAIR AND COLLUSIVE PRICE-FIXING.  TO THAT END,
COMPETITIVE BIDDING AS A PREREQUISITE TO GOVERNMENT CONTRACTS HAS BEEN
THE GENERAL STATUTORY RULE OVER A LONG PERIOD OF YEARS, AND
COMBINATIONS TO DEPRIVE THE GOVERNMENT OF THE ADVANTAGES OF SUCH
COMPETITION HAVE BEEN MADE CRIMINAL.  IT IS THEREFORE STRANGE INDEED
THAT THE SHERMAN ACT, THE GREATEST OF ALL LEGISLATIVE EFFORTS TO MAKE
COMPETITION, NOT COMBINATION, THE LAW OF TRADE, SHOULD NOW BE FOUND TO
AFFORD A GREATER PROTECTION AGAINST COLLUSIVE PRICE-FIXING TO EVERY
OTHER BUYER IN THE UNITED STATES THAN IS AFFORDED TO THE UNITED STATES
ITSELF. 

SO MUCH FOR WHAT SEEMS TO ME TO BE THE LOGICAL APPROACH TO THE
PROBLEM, AND THE ONE THAT SHOULD CAUSE US TO SAY THAT THE GOVERNMENT
CAN SUE FOR DAMAGES.  IF, HOWEVER, WE APPLY FAMILIAR CANONS OF
CONSTRUCTION, I THINK WE ARE LED TO THE SAME RESULT.  FOR IT IS A
PRIMARY PRINCIPLE THAT A LAW SHOULD BE CONSTRUED SO AS TO CARRY OUT ITS
PURPOSE, IN THE LIGHT OF THE EVIL AIMED AT AND THE PROTECTION INTENDED
TO BE AFFORDED.  HERE, AMONG THE EVILS LEGISLATED AGAINST WAS PRICE
FIXING BY COMBINATION, AND AMONG THE REMEDIES AFFORDED WAS THE GIVING
OF A RIGHT OF ACTION TO PURCHASERS INJURED BY PRICES SO FIXED.  THE
RESULT OF THIS CASE - DENYING TO THE LARGEST SINGLE PURCHASER OF ALL
GOODS MANUFACTURED AND SOLD IN THE NATION THE PROTECTION AFFORDED BY
THIS LEGISLATION - IS TO RESTRICT THE REMEDY IN SUCH WAY THAT THE EVIL
AIMED AT IS LESS LIKELY TO BE SUPPRESSED.  FOR THE CONSTRUCTION GIVEN
THE SHERMAN ACT, INSOFAR AS SALES TO THE GOVERNMENT AND CIVIL DAMAGES
ARE CONCERNED, ENABLES THOSE GUILTY OF VIOLATING IT TO ELUDE ITS
PROVISIONS, ESCAPE ITS CONSEQUENCES, AND DEFEAT ITS OBJECTS. 

NOR DO I BELIEVE THAT THE PREVIOUS FAILURE OF THE ATTORNEYS GENERAL
OF THE UNITED STATES TO BRING ACTIONS SIMILAR TO THIS SHOULD BE DEEMED
A PERSUASIVE REASON TO READ THE GOVERNMENT OUT OF THE ACT'S BENEFITS. 
THE 1926 STATEMENT OF THE ATTORNEY GENERAL TO THE EFFECT THAT "THE
UNITED STATES  ...  IS NOT A PARTY TO SUITS UNDER" SEC. 7 DOES NOT
SUPPLY SUCH A REASON.  FOR IN THE QUOTED STATEMENT THE ATTORNEY GENERAL
DID NOT TAKE THE POSITION THAT THE GOVERNMENT LACKED THE POWER TO SUE
FOR CIVIL DAMAGES; APPARENTLY WHAT HE HAD REFERENCE TO WAS THE FACT
THAT THE SHERMAN ACT DID NOT MAKE THE UNITED STATES A PARTY TO ACTIONS
FOR CIVIL DAMAGES BY PRIVATE PERSONS AGAINST PRIVATE PERSONS.  WE DO
NOT KNOW AND CANNOT POSSIBLY DETERMINE WHY NO PRIOR SUITS WERE
INSTITUTED FOR THE BENEFIT OF THE GOVERNMENT.  TO ASSIGN REASONS FOR
SUCH INACTION IS BUT TO GUESS.  AND THE GUESSES WOULD DOUBTLESS VARY
ALMOST IN ACCORDANCE WITH THE PRECONCEIVED NOTIONS OF THE GUESSERS. 
BUT WHATEVER MIGHT HAVE BEEN THE REASONS BEHIND THE GOVERNMENT'S
FAILURE TO SUE, SURE IT IS THAT THE ATTORNEY GENERAL IS NOT THE
PURCHASING AGENT OF THE GOVERNMENT.  HE CANNOT BE ASSUMED TO HAVE
CONSTANT KNOWLEDGE OF THE MANIFOLD PROBLEMS THAT FACE THOSE WHO BUY THE
GOVERNMENT'S SUPPLIES.  IN THE FINAL ANALYSIS, IT IS PROBABLY TRUE THAT
EVEN AN ATTORNEY GENERAL WHO MIGHT ZEALOUSLY DESIRE TO ENFORCE THE
CRIMINAL PROVISIONS OF THE SHERMAN ACT WOULD NOT LIKELY BE STIMULATED
TO INSTITUTE CIVIL PROCEEDINGS FOR DAMAGES UNLESS HIS ATTENTION WAS
DIRECTED TO THE POINT BY KEENLY ALERT AND DILIGENT PURCHASING
AGENCIES.  TO ATTEMPT TO CONSTRUE THE SHERMAN ACT BY A VAIN EFFORT TO
APPRAISE THE REASONS RESPONSIBLE FOR THE NON-ACTION OF ATTORNEYS
GENERAL IS A JOURNEY INTO THE REALM OF IMPONDERABLES I FIND IT
UNNECESSARY TO TAKE.  I WOULD SIMPLY READ THE ACT FROM ITS LANGUAGE AND
MANIFEST PURPOSE AS GIVING ALL PURCHASERS OF GOODS A RIGHT TO SUE IF
THEY HAVE BEEN INJURED AS THE RESULT OF PRICES HELD UP BY THOSE TYPES
OF UNLAWFUL COMBINATION CONDEMNED BY THE ACT.  FN4 

THE PRINCIPLE OF STRICT CONSTRUCTION NOW ADOPTED IN THIS CASE,
RESULTING AS IT DOES IN DENYING TO THE GOVERNMENT THE BENEFIT OF SEC. 7
OF THE SHERMAN ACT, IS A RADICAL DEPARTURE FROM A LONG ESTABLISHED
POLICY UNDER WHICH THE COURTS HAVE CONSTRUED LAWS MOST LIBERALLY IN
ORDER TO DECLARE THE GOVERNMENT ENTITLED TO THEIR BENEFITS.  FN5  AND
CERTAINLY IT CAN HARDLY BE DENIED THAT THE LANGUAGE OF THE ACT, GIVING
ALL PERSONS A RIGHT OF ACTION, SHOULD IF LIBERALLY CONSTRUED BE HELD TO
JUSTIFY SUIT BY THE UNITED STATES.  FOR IN COTTON V. UNITED STATES, 11
HOW.  229, 231, DECIDED FORTY YEARS BEFORE THE SHERMAN ACT WAS ADOPTED,
THIS COURT SAID IN SPEAKING OF THE UNITED STATES: "EVERY SOVEREIGN
STATE IS OF NECESSITY A BODY POLITIC, OR ARTIFICIAL PERSON, AND AS SUCH
CAPABLE OF MAKING CONTRACTS AND HOLDING PROPERTY.  ...  IT WOULD
PRESENT A STRANGE ANOMALY, INDEED, IF, HAVING THE POWER TO MAKE
CONTRACTS AND HOLD PROPERTY AS OTHER PERSONS, NATURAL OR ARTIFICIAL,
THEY WERE NOT ENTITLED TO THE SAME REMEDIES FOR THEIR PROTECTION." 
AND, SPEAKING IN SIMILAR VEIN IN HELVERING V. STOCKHOLMS ENSKILDA BANK,
293 U.S. 84, 92, AFTER HAVING CITED BLACKSTONE FOR THE PROPOSITION THAT
THE SOVEREIGN IS A "CORPORATION," AND AFTER HAVING GONE EVEN BEYOND
THIS TO HOLD THAT THE STATUTORY WORD "RESIDENT" INCLUDED THE UNITED
STATES, THE COURT SAID:  "THIS MAY BE IN THE NATURE OF A LEGAL FICTION;
BUT LEGAL FICTIONS HAVE AN APPROPRIATE PLACE IN THE ADMINISTRATION OF
THE LAW WHEN THEY ARE REQUIRED BY THE DEMANDS OF CONVENIENCE AND
JUSTICE."  FN6 

THESE PARTICULAR CASES ARE BUT FACETS OF A GENERAL RULE THAT HAS LONG
BEEN ACCEPTED - THE UNITED STATES CAN EXERCISE ALL OF THE LEGAL
REMEDIES WHICH OTHER PERSONS, BODIES OR ASSOCIATIONS CAN EXERCISE, BOTH
AT COMMON LAW AND UNDER STATUTES,  FN7  UNLESS THERE IS SOMETHING IN A
STATUTE OR IN ITS HISTORY TO INDICATE AN INTENT TO DEPRIVE THE UNITED
STATES OF THAT RIGHT.  FN8  IN THIS CASE, NOTHING IN THE SHERMAN ACT
ITSELF AND NOTHING IN ITS LEGISLATIVE HISTORY MAKES NECESSARY THE
CONCLUSION THAT CONGRESS INTENDED TO WITHHOLD FROM THE UNITED STATES A
REMEDY GIVEN TO ALL OTHER PURCHASERS.  FN9  UNDER THESE CIRCUMSTANCES,
IT IS MY OPINION THAT THE JUDGMENT BELOW SHOULD BE REVERSED. 

FN1  A 1940 REPORT TO THE SENATE, MADE BY THE SECRETARY OF THE
TREASURY PURSUANT TO A SENATE RESOLUTION, REVEALED THAT THE FEDERAL
GOVERNMENT WAS TRANSACTING PART OF ITS BUSINESS THROUGH THE MEDIUM OF
AT LEAST 1469 GOVERNMENT CORPORATIONS.  SENATE DOCUMENT NO. 172, 76TH
CONG., 3RD SESS., PART 1, P. 4.  THE JUDGMENT HERE DOES NOT FORECLOSE
SUCH CORPORATIONS FROM SUING FOR DAMAGES UNDER SEC. 7, OR SO I ASSUME. 
IF I AM CORRECT IN MY ASSUMPTION, THE RESULT IS THAT AS TO THOSE
PURCHASES MADE BY ITS CORPORATE AGENCIES, THE GOVERNMENT IS PROTECTED
BY THE SHERMAN ACT, WHILE AS TO THOSE PURCHASES MADE BY ITS NON
CORPORATE AGENCIES, IT IS NOT SO PROTECTED.  A PROCESS OF STATUTORY
CONSTRUCTION WHICH RESULTS IN GIVING TO GOVERNMENT CORPORATIONS A RIGHT
DENIED TO CONSTITUTIONALLY AUTHORIZED GOVERNMENT DEPARTMENTS SEEMS TO
ME TO CONFLICT WITH THE FREQUENTLY DECLARED RULE THAT A STATUTE SHOULD
NOT BE INTERPRETED IN SUCH WAY AS TO PRODUCE AN UNREASONABLE OR UNJUST
RESULT.  SEE UNITED STATES V. AMERICAN TRUCKING ASSOCIATIONS, 310 U.S.
534, 542-543; SORRELLS V. UNITED STATES, 287 U.S. 435, 446. 

FN2  FOR A RECENT STUDY, SEE "GOVERNMENT PURCHASING - AN ECONOMIC
COMMENTARY," MONOGRAPH NO. 19 OF THE TEMPORARY NATIONAL ECONOMIC
COMMITTEE (1940). 

FN3  AN ARGUMENT IS OFFERED TO THE EFFECT THAT THE GOVERNMENT HAS NO
NEED OF A RIGHT TO DAMAGES, BECAUSE IT HAS THE POWER TO BRING CRIMINAL
AND INJUNCTIVE PROCEEDINGS.  BUT THE RIGHT TO BRING THOSE PROCEEDINGS
IS GIVEN TO THE GOVERNMENT FOR THE PROTECTION OF THE PUBLIC, RATHER
THAN FOR ITS SELF-PROTECTION AS A PURCHASER.  FURTHER, CRIMINAL AND
INJUNCTIVE PROCEEDINGS, WHATEVER THEIR EFFICACY, DO NOT ACHIEVE THE
OBJECT OF SEC. 7, WHICH IS TO INDEMNIFY ALL INJURED PURCHASERS. 

FN4  THOUGH THE ACT IS ALL-INCLUSIVE IN NAMING THOSE WHO MAY SUE FOR
DAMAGES, IT IS NOT EQUALLY ALL-INCLUSIVE IN DESCRIBING THOSE ACTS WHICH
MAY BE REGARDED AS UNLAWFUL COMBINATIONS.  THIS IS TRUE BOTH BECAUSE OF
THE ORIGINAL LANGUAGE AND OBJECTS OF THE SHERMAN ACT ITSELF, AND
BECAUSE OF SUBSEQUENT LEGISLATION.  THE MOST NOTABLE EXAMPLE OF SUCH
SUBSEQUENT LEGISLATION IS THAT PORTION OF THE CLAYTON ACT WHICH
PROVIDES:  "THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR ARTICLE OF
COMMERCE.  NOTHING CONTAINED IN THE ANTITRUST LAWS SHALL BE CONSTRUED
TO FORBID THE EXISTENCE AND OPERATION OF LABOR, AGRICULTURAL, OR
HORTICULTURAL ORGANIZATIONS  ...  OR TO FORBID OR RESTRAIN INDIVIDUAL
MEMBERS OF SUCH ORGANIZATIONS FROM LAWFULLY CARRYING OUT THE LEGITIMATE
OBJECTS THEREOF; NOR SHALL SUCH ORGANIZATIONS, OR THE MEMBERS THEREOF,
BE HELD OR CONSTRUED TO BE ILLEGAL COMBINATIONS OR CONSPIRACIES IN
RESTRAINT OF TRADE, UNDER THE ANTITRUST LAWS."  38 STAT. 731, 15 U.S.C.
SEC. 17.  SEE APEX HOSIERY CO. V. LEADER, 310 U.S. 469. 

FN5  IT IS ARGUED THAT IF THE GOVERNMENT CAN SUE FOR DAMAGES IT MAY
ALSO BE SUED FOR DAMAGES.  THAT QUESTION IS NOT BEFORE US AND NEED NOT
BE DECIDED.  OTHER PRINCIPLES WILL BE MATERIAL IF SUCH A QUESTION EVER
SHOULD BE PRESENTED.  SEE UNITED STATES V. SHERWOOD, ANTE, P. 584;
NARDONE V. UNITED STATES, 302 U.S. 379, 383-384; UNITED STATES V.
KNIGHT, 14 PET. 301, 315.  AMONG THESE PRINCIPLES THE MOST IMPORTANT IS
THAT OF SOVEREIGN IMMUNITY.  "THE SOVEREIGNTY OF THE UNITED STATES
RAISES A PRESUMPTION AGAINST ITS SUABILITY, UNLESS IT IS CLEARLY SHOWN;
NOR SHOULD A COURT ENLARGE ITS LIABILITY TO SUIT BEYOND WHAT THE
LANGUAGE (OF THE STATUTE IN QUESTION) REQUIRES."  EASTERN
TRANSPORTATION CO. V. UNITED STATES, 272 U.S. 675, 686; PRICE V. UNITED
STATES, 174 U.S. 373, 375-376; UNITED STATES V. SHERWOOD, ANTE, 584. 

FN6  TO THIS STATEMENT THE COURT ADDED:  "IF TO CARRY OUT THE
PURPOSES OF A STATUTE IT BE ADMISSIBLE TO CONSTRUE THE WORD 'PERSON' AS
INCLUDING THE UNITED STATES (CASES TO THAT EFFECT HAVING PREVIOUSLY
BEEN CITED), IT IS HARD TO SEE WHY, IN LIKE CIRCUMSTANCES, IT IS
INADMISSIBLE TO CONSTRUE THE WORD 'RESIDENT' AS LIKEWISE INCLUDING THE
UNITED STATES."  CF. OHIO V. HELVERING, 292 U.S. 360, 370-71; STANLEY
V. SCHWALBY, 147 U.S. 508, 517. 

FN7  SEE DUGAN V. UNITED STATES, 3 WHEAT.  172; UNITED STATES V.
GEAR, 3 HOW.  120; COTTON V. UNITED STATES, SUPRA.  CF. DOLLAR SAVINGS
BANK V. UNITED STATES, 19 WALL.  227; UNITED STATES V. CHAMBERLIN, 219
U.S. 250. 

FN8  CF. DAVIS V. PRINGLE, 268 U.S. 315. 

FN9  THE LEGISLATIVE HISTORY OF THE SHERMAN ACT IS NOT ENLIGHTENING
ON THE QUESTION NOW BEFORE US.  AT BEST, ALL THAT CAN BE SAID OF THE
VERY FEW AND SCATTERED STATEMENTS THAT WERE MADE ON THE SUBJECT DURING
THE DEBATES ON THE CLAYTON ACT IS THAT THEY LOOK BOTH WAYS. 

MR. JUSTICE REED AND MR. JUSTICE DOUGLAS JOIN IN THIS DISSENT. 
..END :






COMMISSION V. BRASHEAR LINES, 312 U.S. 621 


NO. 549.  ARGUED MARCH 10, 1941.  - DECIDED MARCH 31, 1941.  - 114 F.2D
1, REVERSED. 


1.  A MOTION TO ASSESS DAMAGES IN A CASE UNDER JUD.  CODE SEC. 266 IN
WHICH AN INJUNCTION HAS BEEN DISSOLVED AND THE BILL DISMISSED SHOULD BE
DETERMINED BY THE DISTRICT COURT IN THE EXERCISE OF ITS ORDINARY
JURISDICTION WITHOUT PARTICIPATION BY THE TWO ADDITIONAL JUDGES.  P.
625. 

2.  A JUDGMENT OF THE DISTRICT COURT DISMISSING A MOTION TO ASSESS
DAMAGES IN A CASE DECIDED BY THE COURT OF THREE JUDGES (JUD.  CODE SEC.
266), IS NOT INVALIDATED BY THE FACT THAT THE TWO ADDITIONAL JUDGES
TOOK PART IN ITS CONSIDERATION; AND, THOUGH NOT APPEALABLE DIRECTLY TO
THIS COURT, IT IS REVIEWABLE BY THE CIRCUIT COURT OF APPEALS, WHOSE
ACTION UPON IT MAY IN TURN BE REVIEWED HERE ON CERTIORARI.  P. 626. 

3.  IN A SUIT BY NUMEROUS CARRIERS BY TRUCK TO ENJOIN STATE OFFICIALS
FROM ENFORCING A STATE STATUTE IMPOSING LICENSE FEES, WHEREIN THE
DISTRICT COURT, IN DISSOLVING AN INJUNCTION AND DISMISSING THE BILL,
HAD DISMISSED, WITHOUT HEARING ITS MERITS, A COUNTERCLAIM FOR THE
LICENSE FEES OWING BY THE SEVERAL PLAINTIFFS, THE DISMISSAL HAVING BEEN
BASED UPON A DOUBT OF THE RIGHT OF THE DEFENDANTS TO MAINTAIN SUCH A
COUNTERCLAIM AND HAVING BEEN MADE WITHOUT PREJUDICE TO ANY RIGHT TO
MAINTAIN AN INDEPENDENT SUIT OR SUITS THEREON,  - HELD, THAT THE RULING
WAS NOT DECISIVE OF THE RIGHT OF DEFENDANTS TO OBTAIN BY MOTION AT THE
END OF THE LITIGATION AN ASSESSMENT OF DAMAGES CAUSED BY THE
INJUNCTION, AND COSTS.  P. 626. 

4.  THE PLAINTIFFS HAVING PREVENTED COLLECTION OF LAWFUL LICENSE FEES
ON BEHALF OF THE STATE OF MISSOURI THROUGH AN INJUNCTION OBTAINED IN A
SUIT AGAINST THE STATE'S ATTORNEY GENERAL, ITS PUBLIC SERVICE
COMMISSION, AND OTHER PUBLIC AGENCIES, CHARGING THAT THE FEES WERE
UNCONSTITUTIONAL AND THAT THE DEFENDANTS THREATENED TO COLLECT THEM,
AND MANY OF THE PLAINTIFFS HAVING FAILED BEFORE THE INJUNCTION WAS
DISSOLVED TO DEPOSIT THE FEES FALLING DUE FROM THEM, AS REQUIRED BY THE
INJUNCTION ORDER AND THEIR INJUNCTION BONDS, HELD: 

(1)  THAT THE PLAINTIFFS HAVE NO STANDING TO RESIST A MOTION FOR
ASSESSMENT OF DAMAGES UPON THE GROUND THAT THE STATUTORY POWER TO
COLLECT SUCH FEES IS LODGED IN THE STATE TREASURER, WHO WAS NOT A PARTY
TO THE SUIT.  P. 627. 

(2)  WHOEVER HAS THE POWER IN MISSOURI TO COLLECT SUCH LICENSE FEES,
THE ATTORNEY GENERAL HAS EXCLUSIVE AUTHORITY TO BRING SUITS IN THE NAME
AND ON BEHALF OF THE STATE.  P. 627. 

(3)  THE DEFENDANT OFFICIALS AND AGENCIES WERE PROPER PARTIES TO
INVOKE AN ASSESSMENT OF DAMAGES ON BEHALF OF THE STATE.  P. 628. 

(4)  THE DISTRICT COURT, SITTING IN EQUITY, HAS POWER TO SEE THAT
WHATEVER SUMS ARE RECOVERED GO TO THE PROPER STATE OFFICIALS.  P. 628. 

5.  THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO ASSESS
DAMAGES IN THE INJUNCTION SUIT, THUS REMITTING THE STATE AND ITS
OFFICIALS TO MANY ACTIONS AT LAW AGAINST THE PLAINTIFFS, SOME OF THEM
POSSIBLY IN OTHER STATES, AND GIVING RISE TO SERIOUS PROBLEMS IN THE
APPORTIONMENT OF DAMAGES, INCLUDING COSTS AND EXPENSES OF LITIGATION. 
P. 630. 

IT IS ESPECIALLY FITTING THAT EQUITY EXERT ITS FULL STRENGTH IN ORDER
TO PROTECT FROM LOSS A STATE WHICH HAS BEEN INJURED BY REASON OF A
SUSPENSION OF ENFORCEMENT OF STATE LAWS IMPOSED BY EQUITY ITSELF. 

PUBLIC SERVICE COMMISSION OF MISSOURI ET AL. V. BRASHEAR FREIGHT
LINES, INC. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 311 U.S. 642, TO REVIEW A DECREE WHICH AFFIRMED THE
DISTRICT COURT'S DENIAL OF A MOTION TO ASSESS DAMAGES AND COSTS IN AN
INJUNCTION SUIT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE ISSUES IN THIS CASE REVOLVE AROUND THE POWER OF A FEDERAL
DISTRICT COURT TO ASSESS DAMAGES ALLEGEDLY CAUSED BY A TEMPORARY
INJUNCTION ISSUED BY THE COURT BUT LATER DISSOLVED ON FINAL HEARING. 
THESE ISSUES GROW OUT OF THIS SITUATION:  RESPONDENTS IN THIS COURT,
SEVENTY-SIX INDIVIDUALS, PARTNERSHIPS, AND CORPORATIONS OPERATING
TRUCKS AS COMMON CARRIERS IN INTERSTATE COMMERCE, FILED A BILL IN THE
FEDERAL DISTRICT COURT TO ENJOIN PETITIONERS HERE, MISSOURI OFFICIALS
AND AGENCIES, FROM ENFORCING AGAINST THEM CERTAIN ALLEGEDLY
UNCONSTITUTIONAL TAX AND LICENSE FEATURES OF THE MISSOURI BUS AND TRUCK
LAW.  FN1  A SINGLE DISTRICT JUDGE GRANTED A TEMPORARY RESTRAINING
ORDER UNDER WHICH RESPONDENTS WERE REQUIRED TO POST INJUNCTION BONDS
AND UNDER WHICH THE CONTESTED FEES WERE TO BE DEPOSITED WITH A TRUSTEE
DURING THE LITIGATION.  BUT BECAUSE THE BILL SOUGHT TO RESTRAIN STATE
OFFICIALS FROM ENFORCING AN ALLEGEDLY UNCONSTITUTIONAL STATE STATUTE,
THE CASE WAS SET DOWN FOR HEARING BEFORE A THREE JUDGE DISTRICT COURT
PURSUANT TO SEC. 266 OF THE JUDICIAL CODE AS AMENDED, 28 U.S.C. SEC.
380.  PETITIONERS, IN THEIR ANSWER TO RESPONDENTS' COMPLAINT,
COUNTERCLAIMED FOR FEES AND LICENSES THE RESPONDENTS HAD FAILED TO PAY
IN THE PAST  FN2  AND LATER AMENDED THE COUNTERCLAIM TO INCLUDE AMOUNTS
THE RESPONDENTS FAILED TO DEPOSIT WITH THE TRUSTEE DURING THE
LITIGATION.  ULTIMATELY, THE THREE JUDGE COURT FOUND THE BUS AND TRUCK
LAW CONSTITUTIONAL, DISSOLVED THE RESTRAINING ORDER, DISMISSED THE
TRUCK OPERATORS' BILL, AND ALSO ORDERED THE COUNTERCLAIM DISMISSED
WITHOUT PREJUDICE BECAUSE OF "SERIOUS DOUBT AS TO THE RIGHT OF THE
DEFENDANTS TO MAINTAIN" SUCH AN ACTION.  THE TRUCK OPERATORS DID NOT
APPEAL FROM THE DISMISSAL OF THEIR BILL.  PETITIONERS' ATTEMPT TO BRING
THE DISMISSAL OF THEIR COUNTERCLAIM HERE BY DIRECT APPEAL WAS DISMISSED
FOR WANT OF JURISDICTION.  306 U.S. 204.  THEREUPON THE PETITIONERS, ON
THEIR OWN BEHALF AND "IN BEHALF OF THE STATE OF MISSOURI AND OF THE
STATE TREASURER," FILED IN THE THREE JUDGE COURT A MOTION FOR
ASSESSMENT OF DAMAGES AND COSTS AGAINST THE TRUCK OPERATORS AND THEIR
INJUNCTION BOND SURETIES.  THAT COURT DENIED THE REQUESTED RELIEF ON
THE GROUND THAT THE QUESTIONS PRESENTED BY THE MOTION FOR DAMAGES HAD
BEEN RULED UPON AND FINALLY DETERMINED BY THE JUDGMENT DISMISSING THE
ORIGINAL COUNTERCLAIM.  THE CIRCUIT COURT OF APPEALS AFFIRMED,  FN3
BUT ON A DIFFERENT GROUND.  IT HELD THAT THE MOTION TO ASSESS DAMAGES
INVOLVED ISSUES ANCILLARY TO THE ORIGINAL LITIGATION, WHICH WOULD
REQUIRE A LONG AND COMPLICATED INQUIRY; THAT SUCH LITIGATION IS NOT THE
TYPE FOR WHICH A THREE JUDGE COURT IS PROVIDED; THAT THE THREE JUDGE
COURT, HOWEVER, DID HAVE JURISDICTION TO CONSIDER THE MOTION IF IT SAW
FIT, OR TO REMIT IT TO THE SINGLE DISTRICT JUDGE; AND THAT THE ACTION
ACTUALLY TAKEN BY THE THREE JUDGE COURT WAS FINAL, SINCE UNDER THE
CIRCUMSTANCES THAT COURT HAD NOT ABUSED ITS DISCRETION.  WE GRANTED
CERTIORARI, 311 U.S. 642, PRIMARILY BECAUSE OF THE PROCEDURAL
IMPORTANCE OF DETERMINING THE STATUTORY FUNCTION OF A THREE JUDGE COURT
IN DEALING WITH QUESTIONS SUCH AS THOSE HERE PRESENTED.  THE CASE AS
PRESENTED TO US REQUIRES THAT WE GIVE CONSIDERATION TO THESE
QUESTIONS: 

1.  SHOULD THE TWO ADDITIONAL JUDGES, CALLED TO ASSIST THE DISTRICT
JUDGE PURSUANT TO SEC. 266, HAVE PARTICIPATED IN CONSIDERATION OF THE
MOTION TO ASSESS DAMAGES? 

2.  WAS THE DISTRICT COURT CORRECT IN HOLDING THAT ITS PRIOR DENIAL
OF THE COUNTERCLAIM WAS A FINAL ADJUDICATION OF THE ISSUES PRESENTED BY
PETITIONERS' MOTION TO ASSESS DAMAGES? 

3.  WERE THE ENJOINED MISSOURI OFFICIALS AND AGENCIES, TO WHOM THE
INJUNCTION BONDS RAN, PROPER PARTIES TO INVOKE THE COURT'S ACTION FOR
ASSESSMENT OF DAMAGES? 

4.  DID THE DISTRICT COURT ERRONEOUSLY EXERCISE ITS DISCRETIONARY
POWER, BY ITS REFUSAL TO HEAR AND DETERMINE THE MERITS OF PETITIONERS'
MOTION TO ASSESS DAMAGES? 

FIRST.  WE ARE OF OPINION THAT THE TWO JUDGES CALLED IN UNDER SEC.
266 TO ASSIST THE DISTRICT JUDGE IN PASSING UPON THE APPLICATION FOR
INJUNCTION SHOULD NOT HAVE PARTICIPATED IN CONSIDERATION OF THE MOTION
TO ASSESS DAMAGES.  THE LIMITED STATUTORY DUTIES OF THE SPECIALLY
CONSTITUTED THREE JUDGE DISTRICT COURT HAD BEEN FULLY PERFORMED BEFORE
THE MOTION FOR ASSESSMENT OF DAMAGES WAS FILED.  FOR SEC. 266 OF THE
JUDICIAL CODE PROVIDES FOR A HEARING BY THREE JUDGES, INSTEAD OF ONE
DISTRICT JUDGE, ONLY IN CONNECTION WITH ADJUDICATION OF A VERY NARROW
TYPE OF CONTROVERSY - APPLICATIONS FOR TEMPORARY AND PERMANENT
INJUNCTIONS RESTRAINING STATE OFFICIALS FROM ENFORCING STATE LAWS OR
ORDERS MADE PURSUANT THERETO UPON THE GROUND THAT THE STATE STATUTES
ARE REPUGNANT TO THE FEDERAL CONSTITUTION.  FN4  THE MOTION FOR DAMAGES
RAISED QUESTIONS NOT WITHIN THE STATUTORY PURPOSE FOR WHICH THE TWO
ADDITIONAL JUDGES HAD BEEN CALLED.  THOSE QUESTIONS WERE THEREFORE FOR
THE CONSIDERATION OF THE DISTRICT COURT IN THE EXERCISE OF ITS ORDINARY
JURISDICTION, AND THE THREE JUDGE REQUIREMENT OF SEC. 266 HAD NO
APPLICATION.  FN5 

BUT THE FACT THAT IT WAS MISTAKENLY ASSUMED THAT THE MOTION SHOULD BE
PASSED UPON BY THE DISTRICT JUDGE IN ASSOCIATION WITH THE TWO JUDGES
PREVIOUSLY CALLED DID NOT OF ITSELF INVALIDATE THE DISTRICT COURT'S
JUDGMENT DISMISSING THE MOTION.  THOUGH THAT JUDGMENT OF DISMISSAL WAS
NOT APPEALABLE DIRECTLY TO THIS COURT UNDER SEC. 266, EVEN THOUGH
PARTICIPATED IN BY THREE JUDGES, FN6  IT WAS REVIEWABLE BY THE CIRCUIT
COURT OF APPEALS, AND SINCE IT HAS BEEN SO REVIEWED, THE ISSUES
PRESENTED ARE PROPERLY BEFORE US. 

SECOND.  THE GROUND ASSIGNED BY THE DISTRICT COURT FOR DENYING THE
MOTION TO ASSESS DAMAGES WAS THAT BY ITS PREVIOUS DISMISSAL OF
PETITIONERS' COUNTERCLAIM IT HAD ALREADY RULED UPON AND FINALLY
DETERMINED THE QUESTIONS RAISED BY THE MOTION.  THE ORIGINAL
COUNTERCLAIM, HOWEVER, WAS DISMISSED WITHOUT A HEARING ON THE MERITS. 
NO EVIDENCE WAS HEARD.  IT WAS DISMISSED, AS THE COURT SAID AT THE
TIME, BECAUSE OF "SERIOUS DOUBT AS TO THE RIGHT OF THE DEFENDANTS TO
MAINTAIN SUCH COUNTERCLAIM," AND IN THE ORDER OF DISMISSAL IT WAS
SPECIFIED THAT THE ACTION TAKEN WAS "WITHOUT PREJUDICE TO THE RIGHT OF
THE DEFENDANTS  ...  TO MAINTAIN AN INDEPENDENT ACTION OR SUIT
THEREON."  WE NEED NOT HERE POINT OUT THE PROCEDURAL REASONS WHICH
MIGHT HAVE CAUSED THE "SERIOUS DOUBT" WHICH PROMPTED THE COURT TO
DISMISS THE COUNTERCLAIM.  FOR EVEN ASSUMING THAT THE COURT PROPERLY
DISMISSED THE COUNTERCLAIM WITHOUT A HEARING ON THE MERITS, IT DOES NOT
FOLLOW THAT ITS DISMISSAL WAS A FINAL ADJUDICATION OF EITHER THE
PROCEDURAL OR THE SUBSTANTIVE RIGHT OF PETITIONERS TO INVOKE THE
COURT'S JURISDICTION BY A MOTION TO ASSESS DAMAGES.  SOME OF THE
DAMAGES ASSERTED IN THE MOTION - SUCH AS THE COSTS OF THE LITIGATION -
WERE NOT ASSERTED IN THE COUNTERCLAIM, AND SUCH DAMAGES COULD NOT WELL
HAVE BEEN DETERMINED UNTIL AFTER FINAL ADJUDICATION OF THE ISSUES WHICH
CAUSED THE THREE JUDGE COURT TO BE INVOKED.  THE RECORD SHOWS THAT
ACTION ON THE COUNTERCLAIM WAS DEFERRED PENDING FULL HEARING ON THE
CONSTITUTIONALITY OF THE MISSOURI STATUTE UNDER ATTACK.  THIS
POSTPONEMENT MIGHT WELL BE ATTRIBUTED TO A BELIEF ON THE PART OF THE
COURT THAT THE QUESTIONS RAISED BY THE COUNTERCLAIM WERE MATTERS WHICH
COULD BE BETTER DETERMINED AFTER FINAL DETERMINATION OF THE ISSUES
PRESENTED BY THE ORIGINAL BILL FOR INJUNCTION.  THE JUDGMENT DISMISSING
THE MOTION FOR ASSESSMENT OF DAMAGES CANNOT BE SUPPORTED UPON THE
GROUND THAT THE ISSUES RAISED BY IT HAD BEEN ADJUDICATED IN THE PRIOR
DISMISSAL OF THE COUNTERCLAIM. 

THIRD.  RESPONDENTS ALSO SEEK TO SUPPORT THE COURT'S JUDGMENT UPON
THE GROUND THAT THE ENJOINED STATE OFFICIALS AND AGENCIES ARE NOT THE
PROPER PARTIES TO INVOKE THE COURT'S ACTION FOR ASSESSMENT OF DAMAGES
BROUGHT ABOUT BY THE INJUNCTION.  THIS CLAIM CANNOT BE SUSTAINED.  THE
ARGUMENT ON WHICH IT RESTS IS THAT THE STATE TREASURER, NOT THE PUBLIC
SERVICE COMMISSION, IS GIVEN STATUTORY POWER TO COLLECT THE FEES THAT
ARE IN PART THE BASIS OF THE MOTION TO ASSESS DAMAGES.  BUT PETITIONERS
INSIST THAT THE PUBLIC SERVICE COMMISSION ACTUALLY COLLECTS THE FEES
UNDER CUSTOMS AND RULES OF LONG STANDING, AND URGES THAT STATUTORY
AUTHORITY EXISTS FOR SUCH ACTION BY THE COMMISSION.  BUT WHOEVER HAS
THE STATUTORY AUTHORITY TO COLLECT FEES, IT IS NOT DENIED THAT THE
MISSOURI ATTORNEY GENERAL, ONE OF THE ENJOINED AND PETITIONING
OFFICIALS, IS GIVEN EXCLUSIVE AUTHORITY TO BRING SUIT IN THE NAME OF
AND ON BEHALF OF THE STATE.  FN7  AND IF UPON A HEARING DAMAGES ARE
SHOWN TO HAVE BEEN SUFFERED WITHIN THE TERMS AND CONDITIONS OF THE
INJUNCTION BONDS, THE DISTRICT COURT SITTING IN EQUITY HAS AMPLE POWER
TO SEE THAT WHATEVER SUMS ARE RECOVERED GO TO THE PROPER STATE
OFFICIALS.  IN ADDITION TO THIS, RESPONDENTS ARE IN A POOR POSITION TO
ARGUE THAT PETITIONERS ARE NOT PROPER PARTIES, FOR ONE OF THE GROUNDS
UPON WHICH THE RESPONDENTS CLAIMED AN INJUNCTION AGAINST THESE
PARTICULAR PETITIONERS WAS THAT IT WAS THEY WHO WERE THREATENING TO
BRING ACTIONS AGAINST RESPONDENTS TO COLLECT THE VERY FEES WHICH ARE
NOW A PART OF THE PRESENT MOTION FOR ASSESSMENT OF DAMAGES.  AT THE
INSTANCE OF THE OPERATORS, THESE STATE OFFICIALS WERE FOR A PERIOD OF
FIFTEEN MONTHS DEPRIVED OF ALL OPPORTUNITY TO COLLECT ANY FEES EXCEPT
THOSE DEPOSITED WITH THE TRUSTEES PURSUANT TO THE TERMS OF THE
RESTRAINING ORDER.  PETITIONERS' MOTION ALLEGES THAT MANY OPERATORS
FAILED TO COMPLY WITH THE CONDITIONS IMPOSED BY THE ORDER, AND THAT THE
STATE HAS BEEN DEPRIVED OF FEES THAT IT WOULD HAVE COLLECTED BUT FOR
THE INJUNCTION.  THE RESPONDENTS DID NOT BRING THEIR SUIT NOR PRESS
THEIR CLAIM UPON THE ASSUMPTION THAT THESE OFFICIALS COULD NOT AND
WOULD NOT PROTECT THE INTEREST OF THE STATE.  ON THE CONTRARY, THEY
ACTED UPON A DIRECTLY OPPOSITE PREMISE AND EXECUTED BONDS RUNNING TO
THE ENJOINED OFFICIALS IN WHICH THEY AGREED TO PAY THE DAMAGES
SUFFERED.  IT IS OBVIOUS, AND WAS OBVIOUS FROM THE BEGINNING, THAT THE
MAIN DAMAGES WOULD BE SUFFERED BY THE STATE OF MISSOURI AND NOT BY
THESE PETITIONERS AS INDIVIDUALS.  IT WAS TO PROTECT THE STATE THROUGH
ITS OFFICIALS THAT THE BONDS WERE REQUIRED.  IN MAKING THIS REQUIREMENT
THE COURT ACTED IN HARMONY WITH THE GOVERNING PRINCIPLE "THAT IT IS THE
DUTY OF A COURT OF EQUITY GRANTING INJUNCTIVE RELIEF TO DO SO UPON
CONDITIONS THAT WILL PROTECT ALL - INCLUDING THE PUBLIC - WHOSE
INTERESTS THE INJUNCTION MAY AFFECT."  INLAND STEEL CO. V. UNITED
STATES, 306 U.S. 153, 157.  PETITIONERS WERE PROPER PARTIES TO INVOKE
THE COURT'S PROTECTION OF THE STATE'S INTEREST, AND WE HAVE NO DOUBT
BUT THAT THE COURT CAN MOULD ANY DECREE IT RENDERS SO AS TO SAFEGUARD
THE RIGHTS OF ALL INTERESTED PARTIES. 

FOURTH.  THERE YET REMAINS THE BASIS UPON WHICH THE COURT BELOW
AFFIRMED THE DISTRICT COURT'S REFUSAL TO ASSESS DAMAGES - THAT THE
JURISDICTION TO EXERCISE THIS POWER IS DISCRETIONARY, AND THAT REFUSAL
TO EXERCISE THE POWER WAS NOT SHOWN TO BE ERRONEOUS.  IN CONSIDERING
THIS QUESTION, IT IS OF NO IMPORTANCE THAT DEALING WITH PETITIONERS'
MOTION FOR ASSESSMENT OF DAMAGES WOULD INVOLVE LONG AND COMPLICATED
HEARINGS ON ISSUES INAPPROPRIATE FOR DECISION BY A THREE JUDGE COURT. 
FOR AS WE HAVE POINTED OUT, THE ISSUES WERE APPROPRIATE FOR DECISION BY
THE SINGLE JUDGE OF THE DISTRICT.  THERE CAN BE NO QUESTION OF THAT
JUDGE'S RIGHT TO DEAL WITH ISSUES SUCH AS THOSE HERE PRESENTED.  UNDER
LONG SETTLED EQUITY PRACTICE, COURTS OF CHANCERY HAVE DISCRETIONARY
POWER TO ASSESS DAMAGES SUSTAINED BY PARTIES WHO HAVE BEEN INJURED
BECAUSE OF AN INJUNCTIVE RESTRAINT ULTIMATELY DETERMINED TO HAVE BEEN
IMPROPERLY GRANTED.  RUSSELL V. FARLEY, 105 U.S. 433, 444 ET SEQ.;
PEASE V. RATHBUN-JONES ENGINEERING CO., 243 U.S. 273, 279.  THIS POWER
IS, AS STATED, DISCRETIONARY; THERE ARE OF COURSE CASES WHERE THE
CHANCELLOR MIGHT PROPERLY CONCLUDE THAT PARTIES SHOULD BE REMITTED TO
AN ACTION AT LAW.  BUT THIS IS NOT ONE OF THOSE CASES.  IF PETITIONERS
HAD TO BRING ACTIONS AT LAW, EACH OF THE SEVENTY-SIX RESPONDENTS MIGHT
HAVE TO BE MADE A DEFENDANT IN A SEPARATE ACTION.  THERE IS A
CONTROVERSY BETWEEN THE PARTIES AS TO WHETHER OR NOT ALL OF THESE
RESPONDENTS COULD BE SUED OR SERVED IN THE STATE OF MISSOURI; TO BE
COMPELLED TO SUE SOME OF THEM ELSEWHERE WOULD WORK A HARDSHIP ON THE
STATE.  IN ADDITION TO THIS, PART OF THE DAMAGES FOR WHICH PETITIONERS
SEEK RECOVERY IS MADE UP OF VARIOUS ITEMS OF COST AND EXPENSE INCURRED
IN THE LITIGATION; IF PETITIONERS SUCCEED ON THE MERITS, THERE MIGHT
CONCEIVABLY BE SERIOUS PROBLEMS RAISED BY THE SEVENTY-SIX RESPONDENTS
AS TO THE PORTION OF DAMAGES FAIRLY ATTRIBUTABLE TO EACH - A PROBLEM
PECULIARLY APPROPRIATE TO EQUITY, AND PREEMINENTLY ADAPTED TO
SETTLEMENT BY A SINGLE COURT.  HERE, RESPONDENTS JOINED THEMSELVES
TOGETHER IN ORDER JOINTLY TO RESTRAIN PETITIONERS; THEY EXECUTED JOINT
BONDS; AND THEY INVOKED THE ACTION OF EQUITY WHICH HAS TRADITIONALLY
EXERTED ITS POWER NOT MERELY TO ASSESS DAMAGES CAUSED BY IMPROVIDENT
INJUNCTIONS BUT ALSO TO PREVENT THE HARMFUL CONSEQUENCES OF AN
UNNECESSARY MULTIPLICITY OF CAUSES OF ACTION.  THE CIRCUMSTANCES OF
THIS CASE CALL SO STRONGLY FOR AN ASSESSMENT BY EQUITY THAT WE THINK
THE COURT ERRED IN DISMISSING THE MOTION FOR ASSESSMENT OF DAMAGES. 
AND IT IS ESPECIALLY FITTING THAT EQUITY EXERT ITS FULL STRENGTH IN
ORDER TO PROTECT FROM LOSS A STATE WHICH HAS BEEN INJURED BY REASON OF
A SUSPENSION OF ENFORCEMENT OF STATE LAWS IMPOSED BY EQUITY ITSELF. 
FN8  THE JUDGMENT OF THE COURT BELOW IS REVERSED AND THE CAUSE IS
REMANDED FOR PROCEEDINGS BEFORE A SINGLE DISTRICT JUDGE IN CONFORMITY
WITH THIS OPINION.  REVERSED AND REMANDED. 

FN1  MO. REV. STATS. (1929) SEC. 5272, AS AMENDED BY MO. LAWS (1931),
P. 311.  THE MISSOURI OFFICIALS WERE THE ATTORNEY GENERAL, THE
SUPERINTENDENT OF THE STATE HIGHWAY PATROL, THE STATE HIGHWAY
COMMISSION, AND THE PUBLIC SERVICE COMMISSION.  THE GROUND OF ATTACK ON
THE STATUTE WAS THAT IT VIOLATED THE FEDERAL CONSTITUTION AND THE
FEDERAL MOTOR CARRIER ACT OF 1935, 49 STAT. 543, 49 U.S.C. SECS. 301
327(SUPP.  1939). 

FN2  RESPONDENTS DENIED "EACH AND EVERY ALLEGATION, STATEMENT AND
THING" CONTAINED IN THE COUNTERCLAIM.  LATER THEY CONTENDED THAT IT WAS
THE UNDERSTANDING OF THE PARTIES THAT SHOULD THE COUNTERCLAIM BECOME
MATERIAL, THEN THIS PLEADING COULD BE WITHDRAWN AND "AN OPPORTUNITY TO
PLEAD FULLY" TO THE COUNTERCLAIM BE EXERCISED.  PETITIONERS DENIED THAT
THERE WAS ANY SUCH UNDERSTANDING. 

FN3  114 F.2D 1. 

FN4  SEE PHILLIPS V. UNITED STATES, 312 U.S. 246; OKLAHOMA GAS &
ELECTRIC CO. V. OKLAHOMA PACKING CO., 292 U.S. 386; EX PARTE PUBLIC
NATIONAL BANK, 278 U.S. 101, 104. 

FN5  A DISTRICT COURT COMPOSED OF THREE JUDGES UNDER SEC. 266 OF
COURSE HAS JURISDICTION TO DETERMINE EVERY QUESTION INVOLVED IN THE
LITIGATION PERTAINING TO THE PRAYER FOR AN INJUNCTION, IN ORDER THAT A
SINGLE LAWSUIT MAY AFFORD FINAL AND AUTHORITATIVE DECISION OF THE
CONTROVERSY BETWEEN THE PARTIES.  RAILROAD COMMISSION V. PACIFIC GAS &
ELECTRIC CO., 302 U.S. 388, 391; STERLING V. CONSTANTIN, 287 U.S. 378,
393-394. 

FN6  SEE, E.G., PUBLIC SERVICE COMMISSION V. COLUMBIA TERMINALS CO.,
309 U.S. 620; PUBLIC SERVICE COMMISSION V. BRASHEAR FREIGHT LINES, 306
U.S. 204, 207.  CF. EICHHOLZ V. PUBLIC SERVICE COMMISSION, 306 U.S.
268. 

FN7  MO. REV. STATS. (1929) SEC. 11276.  (MO. REV. STATS. (1939) SEC.
12901.) 

FN8  CF. UNITED STATES V. MORGAN, 307 U.S. 183, 197; INLAND STEEL CO.
V. UNITED STATES, 306 U.S. 153, 158; ARKADELPHIA MILLING CO. V. ST.
LOUIS SOUTHWESTERN RY. CO., 249 U.S. 134, 145-146. 
..END :







MOORE V. ILLINOIS CENTRAL R. CO., 312 U.S. 630 


NO. 550.  ARGUED MARCH 12, 1941.  - DECIDED MARCH 31, 1941.  - 112 F.2D
959, REVERSED - JUDGMENT OF THE DISTRICT COURT, 24 F.SUPP.  731,
AFFIRMED. 


1.  A RULING BY THE STATE SUPREME COURT MADE ON REVIEW OF THE FIRST
TRIAL OF AN ACTION ON CONTRACT AND DETERMINING THE APPLICABLE STATE
STATUTE OF LIMITATIONS MUST BE FOLLOWED BY THE FEDERAL COURTS ON A
SECOND TRIAL, AFTER REMOVAL, IN THE ABSENCE OF ANY INTERVENING CHANGE
BY LEGISLATION OR BY RULING OF THE STATE SUPREME COURT.  P. 633. 

2.  ALTHOUGH A STATE SUPREME COURT CONSIDERS ITSELF FREE, ON A SECOND
TRIAL, TO RECONSIDER AND OVERRULE INTERPRETATIONS OF STATE LAW MADE ON
THE FIRST REVIEW, THE CIRCUIT COURT OF APPEALS UPON REVIEW FOLLOWING A
SECOND TRIAL, AFTER REMOVAL, IS NEVERTHELESS BOUND BY THE STATE COURT'S
INTERPRETATIONS.  P. 633. 

3.  THE RIGHT OF A WORKMAN TO SUE A RAILROAD COMPANY FOR WRONGFUL
DISCHARGE IS NOT DEPENDENT UPON PRIOR EXHAUSTION OF HIS ADMINISTRATIVE
REMEDIES UNDER THE RAILWAY LABOR ACT.  P. 634. 

MOORE V. ILLINOIS CENTRAL RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 311 U.S. 643, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS REVERSING A JUDGMENT RECOVERED BY THE PLAINTIFF IN THE
DISTRICT COURT IN AN ACTION AGAINST A RAILROAD COMPANY FOR WRONGFUL
DISCHARGE FROM EMPLOYMENT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE, 311 U.S. 643, TO REVIEW A
JUDGMENT IN WHICH THE CIRCUIT COURT OF APPEALS APPLIED A MISSISSIPPI
STATUTE OF LIMITATIONS CONTRARY TO THE MISSISSIPPI SUPREME COURT'S
APPLICATION OF THE SAME STATUTE TO THE SAME PLEA IN THE SAME CASE. 
COMPARE MOORE V. ILLINOIS CENTRAL RAILROAD CO., 180 MISS.  276; 176 SO.
593, WITH ILLINOIS CENTRAL RAILROAD CO. V. MOORE, 112 F.2D 959. 

PETITIONER MOORE, A MEMBER OF THE BROTHERHOOD OF RAILROAD TRAINMEN,
BROUGHT SUIT FOR DAMAGES AGAINST RESPONDENT RAILROAD COMPANY IN A
MISSISSIPPI STATE COURT, CLAIMING THAT HE HAD BEEN WRONGFULLY
DISCHARGED CONTRARY TO THE TERMS OF A CONTRACT BETWEEN THE TRAINMEN AND
THE RAILROAD, A COPY OF THE CONTRACT BEING ATTACHED TO THE COMPLAINT AS
AN EXHIBIT.  PETITIONER ALLEGED THAT AS A MEMBER OF THE TRAINMEN HE WAS
ENTITLED TO ALL THE BENEFITS OF THE CONTRACT.  JUDGMENT ON THE
PLEADINGS WAS RENDERED AGAINST MOORE BY THE TRIAL COURT.  UPON APPEAL
THE MISSISSIPPI SUPREME COURT REVERSED AND REMANDED.  ONE OF THE
RAILROAD'S PLEAS WAS THAT THE CONTRACT OF EMPLOYMENT BETWEEN MOORE AND
THE RAILROAD WAS VERBAL, RATHER THAN WRITTEN, AND THAT ANY ACTION
THEREON WAS THEREFORE BARRED BY THE THREE YEAR STATUTE OF LIMITATIONS
PROVIDED BY SEC. 2299 OF THE MISSISSIPPI CODE OF 1930.  WITH REFERENCE
TO THIS PLEA THE MISSISSIPPI SUPREME COURT SAID:  "THE APPELLANT'S SUIT
IS NOT ON A VERBAL CONTRACT BETWEEN HIM AND THE APPELLEE, BUT ON A
WRITTEN CONTRACT MADE WITH THE APPELLEE, FOR APPELLANT'S BENEFIT, BY
THE BROTHERHOOD OF RAILROAD TRAINMEN; CONSEQUENTLY, SECTION 2299, CODE
OF 1930, HAS NO APPLICATION, AND THE TIME WITHIN WHICH APPELLANT COULD
SUE IS SIX YEARS UNDER SECTION 2292, CODE OF 1930."  MOORE V. ILLINOIS
CENTRAL R. CO., SUPRA, 291. 

AFTER THE REMAND BY THE MISSISSIPPI SUPREME COURT, MOORE AMENDED HIS
BILL TO ASK DAMAGES IN EXCESS OF $3000, AND THE RAILROAD REMOVED THE
CASE TO THE FEDERAL COURTS.  THE DISTRICT COURT, CONSIDERING ITSELF
BOUND BY STATE LAW, HELD THAT THE MISSISSIPPI THREE YEAR STATUTE OF
LIMITATIONS DID NOT APPLY,  FN1  BUT ON THIS POINT THE CIRCUIT COURT OF
APPEALS REVERSED,  FN2  DECLINING TO FOLLOW THE MISSISSIPPI SUPREME
COURT'S RULING.  CALLING ATTENTION TO THE FACT THAT THE MISSISSIPPI
SUPREME COURT DOES NOT REGARD ITSELF AS BOUND BY A DECISION UPON A
SECOND APPEAL, THE CIRCUIT COURT OF APPEALS (ONE JUDGE DISSENTING)
SAID:  "SINCE THE REMOVAL OF THE CASE TO THE FEDERAL COURT THIS COURT
STANDS IN THE PLACE OF THE SUPREME COURT OF MISSISSIPPI AND WITH THE
SAME POWER OF RECONSIDERATION."  BUT THE CIRCUIT COURTS OF APPEALS DO
NOT HAVE THE SAME POWER TO RECONSIDER INTERPRETATIONS OF STATE LAW BY
STATE COURTS AS DO THE HIGHEST COURTS OF THE STATE IN WHICH A DECISION
HAS BEEN RENDERED.  THE MISSISSIPPI SUPREME COURT HAD THE POWER TO
RECONSIDER AND OVERRULE ITS FORMER INTERPRETATION, BUT THE COURT BELOW
DID NOT.  AND IN THE ABSENCE OF A CHANGE BY THE MISSISSIPPI
LEGISLATURE, THE COURT BELOW COULD RECONSIDER AND DEPART FROM THE
RULING OF THE HIGHEST COURT OF MISSISSIPPI ON MISSISSIPPI'S STATUTE OF
LIMITATIONS ONLY TO THE EXTENT, IF ANY, THAT EXAMINATION OF THE LATER
OPINIONS OF THE MISSISSIPPI SUPREME COURT SHOWED THAT IT HAD CHANGED
ITS EARLIER INTERPRETATION OF THE EFFECT OF THE MISSISSIPPI STATUTE. 
WICHITA ROYALTY CO. V. CITY NATIONAL BANK, 306 U.S. 103, 107; CF. WEST
V. AMERICAN TELEPHONE & TELEGRAPH CO., 311 U.S. 223; FIDELITY UNION
TRUST CO. V. FIELD, 311 U.S. 169.  BUT THE COURT BELOW DID NOT RELY
UPON ANY CHANGE BROUGHT ABOUT BY THE MISSISSIPPI LEGISLATURE OR THE
MISSISSIPPI SUPREME COURT.  ON THE CONTRARY, IT CONCLUDED THAT IT
SHOULD REEXAMINE THE LAW BECAUSE THERE WAS INVOLVED THE INTERPRETATION
AND APPLICATION OF A COLLECTIVE CONTRACT OF AN INTERSTATE RAILROAD WITH
ITS EMPLOYEES.  THE COURT BELOW ALSO BASED ITS FAILURE TO FOLLOW THE
MISSISSIPPI SUPREME COURT'S DECISION IN MOORE'S CASE ON THE GROUND THAT
IN AN EARLIER CASE THE MISSISSIPPI SUPREME COURT HAD SAID THAT THE
THREE YEAR STATUTE APPLIED UNLESS A CONTRACT WAS "WHOLLY PROVABLE IN
WRITING," A SITUATION WHICH THE COURT BELOW DID NOT THINK EXISTED
HERE.  FN3  BUT EVEN BEFORE THE DECISION IN ERIE R. CO. V. TOMPKINS,
304 U.S. 64, THE FEDERAL COURTS APPLIED STATE STATUTES OF LIMITATIONS
IN ACCORDANCE WITH THE INTERPRETATIONS GIVEN TO SUCH STATUTES BY THE
STATES' HIGHEST COURTS.  AS EARLY AS 1893, THIS COURT SAID:  "THE
CONSTRUCTION GIVEN TO A STATUTE (OF LIMITATIONS) OF A STATE BY THE
HIGHEST JUDICIAL TRIBUNAL OF SUCH STATE IS REGARDED AS A PART OF THE
STATUTE, AND IS AS BINDING UPON THE COURTS OF THE UNITED STATES AS THE
TEXT.  IF THE HIGHEST JUDICIAL TRIBUNAL OF A STATE ADOPT NEW VIEWS AS
TO THE PROPER CONSTRUCTION OF SUCH A STATUTE, AND REVERSE ITS FORMER
DECISIONS, THIS COURT WILL FOLLOW THE LATEST SETTLED ADJUDICATIONS." 
N4  IT WAS ERROR FOR THE COURT BELOW TO DEPART FROM THE MISSISSIPPI
SUPREME COURT'S INTERPRETATION OF THE STATE STATUTE OF LIMITATIONS. 

BUT RESPONDENT SAYS THAT THERE IS ANOTHER REASON WHY THE JUDGMENT IN
ITS FAVOR SHOULD BE SUSTAINED.  FN5  THIS REASON, ACCORDING TO
RESPONDENT, IS THAT BOTH THE DISTRICT COURT AND THE CIRCUIT COURT OF
APPEALS ERRED IN FAILING TO HOLD THAT MOORE'S SUIT WAS PREMATURELY
BROUGHT BECAUSE OF HIS FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES
GRANTED HIM BY THE RAILWAY LABOR ACT, 44 STAT. 577, AS AMENDED, 48
STAT. 1185, 45 U.S.C. SEC. 151, ET SEQ. BUT WE FIND NOTHING IN THAT 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.  IN
SUPPORT OF ITS CONTENTION, THE RAILROAD POINTS ESPECIALLY TO SEC.
153(I), WHICH, AS AMENDED IN 1934, PROVIDES THAT DISPUTES GROWING OUT
OF GRIEVANCES OR OUT OF THE INTERPRETATION OR APPLICATION OF AGREEMENTS
"SHALL BE HANDLED IN THE USUAL MANNER UP TO AND INCLUDING THE CHIEF
OPERATING OFFICER OF THE CARRIER DESIGNATED TO HANDLE SUCH DISPUTES;
BUT, FAILING TO REACH AN ADJUSTMENT IN THIS MANNER, THE DISPUTES MAY BE
REFERRED BY PETITION OF THE PARTIES OR BY EITHER PARTY TO THE
APPROPRIATE DIVISION OF THE ADJUSTMENT BOARD WITH A FULL STATEMENT OF
THE FACTS AND ALL SUPPORTING DATA BEARING UPON THE DISPUTES."  AND IN
CONNECTION WITH THIS STATUTORY LANGUAGE THE RAILROAD ALSO DIRECTS OUR
ATTENTION TO A PROVISION IN THE AGREEMENT BETWEEN THE TRAINMEN AND THE
RAILROAD - A PROVISION AUTHORIZING MOORE TO SUBMIT HIS COMPLAINT TO
OFFICIALS OF THE RAILROAD, OFFER WITNESSES BEFORE THEM, APPEAL TO
HIGHER OFFICERS OF THE COMPANY IN CASE THE DECISION SHOULD BE
UNSATISFACTORY, AND OBTAIN REINSTATEMENT AND PAY FOR TIME LOST IF
OFFICIALS OF THE RAILROAD SHOULD FIND THAT HIS SUSPENSION OR DISMISSAL
WAS UNJUST.  IT IS TO BE NOTED THAT THE SECTION POINTED OUT, SEC.
153(I), AS AMENDED IN 1934, PROVIDES NO MORE THAN THAT DISPUTES "MAY BE
REFERRED ...  TO THE  ...  ADJUSTMENT BOARD  ...  "  IT IS SIGNIFICANT
THAT THE COMPARABLE SECTION OF THE 1926 RAILWAY LABOR ACT (44 STAT.
577, 578) HAD, BEFORE THE 1934 AMENDMENT, PROVIDED THAT UPON FAILURE OF
THE PARTIES TO REACH AN ADJUSTMENT A "DISPUTE SHALL BE REFERRED TO THE
DESIGNATED ADJUSTMENT BOARD BY THE PARTIES, OR BY EITHER PARTY  ...  "
THIS DIFFERENCE IN LANGUAGE, SUBSTITUTING "MAY" FOR "SHALL," WAS NOT,
WE THINK, AN INDICATION OF A CHANGE IN POLICY, BUT WAS INSTEAD A
CLARIFICATION OF THE LAW'S ORIGINAL PURPOSE.  FOR NEITHER THE ORIGINAL
1926 ACT, NOR THE ACT AS AMENDED IN 1934, INDICATES THAT THE MACHINERY
PROVIDED FOR SETTLING DISPUTES WAS BASED ON A PHILOSOPHY OF LEGAL
COMPULSION.  ON THE CONTRARY, THE LEGISLATIVE HISTORY OF THE RAILWAY
LABOR ACT SHOWS A CONSISTENT PURPOSE ON THE PART OF CONGRESS TO
ESTABLISH AND MAINTAIN A SYSTEM FOR PEACEFUL ADJUSTMENT AND MEDIATION
VOLUNTARY IN ITS NATURE.  FN6  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.  BUT, FOR
FAILURE TO FOLLOW STATE LAW ON THE STATE STATUTE OF LIMITATIONS, THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED; THE JUDGMENT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  24 F.SUPP.  731. 

FN2  112 F.2D 959. 

FN3  CITY OF HATTIESBURG V. COBB BROS. CONSTRUCTION CO., 174 MISS. 
20; 163 SO. 676. 

FN4  BAUSERMAN V. BLUNT, 147 U.S. 647, 654, QUOTING FROM LEFFINGWELL
V. WARREN, 2 BLACK 599, 603.  AND SEE BALKAM V. WOODSTOCK IRON CO.$N,
154 U.S. 177, 187. 

FN5  CF. HELVERING V. GOWRAN, 302 U.S. 238. 

FN6  SEE, E.G., H. REP. NO. 328, 69TH CONG., 1ST SESS., P. 4. 

MR. JUSTICE FRANKFURTER CONCURS IN THE RESULT. 
..END :










HELVERING V. ENRIGHT, 312 U.S. 636 


NO. 436.  ARGUED MARCH 4, 1941.  - DECIDED MARCH 31, 1941.  - 112 F.2D
919, REVERSED. 


ACCRUABLE ITEMS, IN A DECEDENT'S GROSS INCOME FOR THE PERIOD ENDING
WITH HIS DEATH, OF HIS SHARE OF THE PROFITS EARNED, BUT NOT YET
RECEIVED, BY A PARTNERSHIP, ALTHOUGH BOTH THE DECEDENT AND HIS FIRM
KEPT THEIR ACCOUNTS AND MADE THEIR INCOME TAX REPORTS ON A CALENDAR
YEAR CASH RECEIPTS AND DISBURSEMENTS BASIS.  P. 640. 

SO HELD OF A DECEASED MEMBER OF A LAW FIRM IN RESPECT OF HIS SHARE OF
THE EARNED PORTION OF THE ESTIMATED RECEIPTS FROM THE UNFINISHED
BUSINESS OF THE FIRM, VALUED AS OF THE DATE OF HIS DEATH. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. ESTATE OF ENRIGHT ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 311 U.S. 638, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS SUSTAINING A DEFICIENCY ASSESSMENT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS GRANTED TO REVIEW THE JUDGMENT BELOW  FN1  BECAUSE OF
A CONFLICT BETWEEN IT AND PFAFF V. COMMISSIONER  FN2  IN THE SECOND
CIRCUIT.  THE ISSUE IS WHETHER SEC. 42 OF THE REVENUE ACT OF 1934  FN3
PERMITS THE INCLUSION, AS ACCRUABLE ITEMS, IN A DECEDENT'S GROSS INCOME
FOR THE PERIOD ENDING WITH HIS DEATH, OF HIS SHARE OF THE PROFITS
EARNED, BUT NOT YET RECEIVED, OF A PARTNERSHIP, WHEN BOTH THE DECEDENT
AND THE PARTNERSHIP REPORTED INCOME ON A CASH RECEIPTS AND
DISBURSEMENTS BASIS. 

RESPONDENTS ARE THE EXECUTORS OF JOHN M. ENRIGHT, AN ATTORNEY AND
MEMBER OF A LAW PARTNERSHIP IN NEW JERSEY.  BOTH MR. ENRIGHT AND HIS
FIRM KEPT THEIR ACCOUNTS AND MADE THEIR INCOME TAX REPORT ON A CALENDAR
YEAR CASH RECEIPTS AND DISBURSEMENTS BASIS.  HE DIED, TESTATE, NOVEMBER
19, 1934.  THE PARTNERSHIP AGREEMENT PROVIDED FOR THE TERMINATION OF
THE PARTNERSHIP ON THE DEATH OF ANY PARTNER AND THAT HIS ESTATE SHOULD
HAVE HIS PARTNERSHIP PERCENTAGE IN THE "NET MONIES THEN IN THE TREASURY
OF THE FIRM, PLUS HIS LIKE PERCENTAGE IN THE OUTSTANDING ACCOUNTS AND
THE EARNED PROPERTION OF THE ESTIMATED RECEIPTS FROM UNFINISHED
BUSINESS."  THE WILL DIRECTED THAT THE VALUATION FOR THE PURPOSE OF
CLOSING OUT THE PARTNERSHIP SHOULD BE MADE BY HIS SENIOR SURVIVING
PARTNER, MR. JAMES D. CARPENTER, AND BY AGREEMENT BETWEEN MR. CARPENTER
AND THE EXECUTORS A VALUATION WAS MADE OF THESE ITEMS AS OF THE DATE OF
DEATH FOR USE IN THE FEDERAL ESTATE TAX AND NEW JERSEY INHERITANCE TAX
RETURNS, WITH THE FURTHER UNDERSTANDING THAT THE SURVIVING PARTNERS
WOULD PAY OVER TO THE EXECUTORS WHATEVER WAS ULTIMATELY REALIZED OUT OF
THE VALUED ASSETS. 

PURSUANT TO THIS ARRANGEMENT THE INTEREST OF MR. ENRIGHT IN THE
UNCOLLECTED ACCOUNTS WAS VALUED AT $2,055.55 AND IN THE UNFINISHED WORK
AT $40,855.77.  THESE SUMS WERE REPORTED AS ASSETS IN THE ESTATE AND
INHERITANCE TAX RETURNS BUT WERE NOT INCLUDED IN THE INCOME TAX RETURN
MADE FOR THE DECEDENT FOR 1934, NOR WERE THE SUMS DERIVED FROM THESE
ASSETS REPORTED IN THE ESTATE'S INCOME TAX FOR 1934 OR LATER YEARS. 

THE COMMISSIONER ASSESSED A DEFICIENCY BECAUSE HE INCLUDED IN THE
DECEDENT'S RETURN FOR 1934, UNDER THE CLAIMED AUTHORITY OF SEC. 42,
SUPRA NOTE 3, THE ITEMS OF ACCOUNTS AND UNFINISHED WORK.  RESPONDENTS
APPEALED TO THE BOARD OF TAX APPEALS.  THE BOARD DECIDED  FN4  THAT THE
EVIDENCE DID NOT SHOW THE SITUATION OF THE UNFINISHED WORK IN
SUFFICIENT DETAIL TO ENABLE THE BOARD TO DETERMINE INDEPENDENTLY THAT
IT WAS NOT ACCRUABLE.  THE ACCOUNTS RECEIVABLE WERE HELD ACCRUABLE. 
THIS LEFT THE COMMISSIONER'S ASSESSMENT INTACT. 

ON APPEAL THE CIRCUIT COURT OF APPEALS REVERSED THE BOARD.  IT WAS OF
THE OPINION THAT THE PARTNERSHIP WAS A TAX COMPUTING UNIT SEPARATE FROM
ITS MEMBERS AND THAT SEC. 42 HAD THE EFFECT OF PLACING THE DECEDENT
"UPON AN ACCRUAL BASIS AT THE DATE OF HIS DEATH."  CONSEQUENTLY HIS
RETURN SHOULD BE MADE AS IT WOULD HAVE BEEN MADE IF THE DECEASED USED
THE ACCRUAL METHOD.  THE COURT THEN REASONED THAT THE REQUIREMENT OF
SEC. 182 OF THE REVENUE ACT OF 1934, INCLUDING A PARTNER'S DISTRIBUTIVE
SHARE OF THE PARTNERSHIP EARNINGS, WHETHER DISTRIBUTED OR NOT, IN THE
PARTNER'S COMPUTATION OF HIS OWN NET INCOME, PUT A PARTNER ON AN
ACCRUAL BASIS IN ACCOUNTING FOR PARTNERSHIP EARNINGS, IRRESPECTIVE OF
SEC. 42.  CONSEQUENTLY SEC. 42 WAS HELD NOT TO AFFECT THE PARTNERSHIP
ACCOUNTING PRACTICES.  IT WAS FURTHER DETERMINED THAT IT WAS THE RIGHT
TO RECEIVE PAYMENT WHICH MADE AN EARNING ACCRUE AND THAT, AS MR.
ENRIGHT UNDER THE PARTNERSHIP AGREEMENT HAD NO RIGHT TO RECEIVE
ANYTHING FROM THE FIRM EXCEPT HIS PROPORTIONATE SHARE OF THE CASH
RECEIPTS, THESE CASH RECEIPTS WERE ALL THAT "ACCRUED" TO HIM BEFORE HIS
DEATH. 

THE LAST SENTENCE OF SEC. 42 WHICH REQUIRES THE INCLUSION OF "AMOUNTS
ACCRUED UP TO THE DATE OF HIS DEATH" IN COMPUTING NET INCOME FOR THE
PERIOD IN WHICH HIS DEATH FALLS WAS ADDED BY THE 1934 REVENUE ACT.  FN5
THE REPORTS RECOMMENDED ITS ADDITION BECAUSE THE "COURTS HAVE HELD
THAT INCOME ACCRUED BY A DECEDENT ON THE CASH BASIS PRIOR TO HIS DEATH
IS NOT INCOME TO THE ESTATE, AND UNDER THE PRESENT LAW, UNLESS SUCH
INCOME IS TAXABLE TO THE DECEDENT, IT ESCAPES INCOME TAX ALTOGETHER." 
FN6  SO SEC. 42 WAS DRAWN TO REQUIRE THE INCLUSION OF ALL AMOUNTS
ACCRUED TO THE DATE OF DEATH "REGARDLESS OF THE FACT THAT HE MAY HAVE
KEPT HIS BOOKS ON A CASH BASIS."  FN7  WITH THE DECLARED PURPOSE OF
CONGRESS IN MIND, WE PROCEED TO EXAMINE THE MEANING OF THE SECTION. 

AS THE QUESTIONED ITEMS OF UNFINISHED WORK APPEAR IN THE PARTNERSHIP
ACCOUNTS, WE MUST DETERMINE WHETHER SUCH EARNINGS, EVEN IF ACCRUABLE,
ARE INCLUDIBLE IN THE PARTNER'S RETURN FOR 1934.  RESPONDENT ARGUES, AS
THE CIRCUIT COURT OF APPEALS HELD, THAT SEC. 182  FN8  ACCRUES, WITHOUT
ANY EFFECT FROM THE LANGUAGE OF SEC. 42, ALL THE EARNINGS THAT ARE
INCLUDIBLE IN A PARTNER'S RETURN, AND THAT SINCE THE PARTNERSHIP METHOD
OF KEEPING ITS BOOKS DID NOT TREAT UNFINISHED BUSINESS AS RECEIPTS,
ONLY THE EARNINGS ACTUALLY COLLECTED ARE A PART OF THE PARTNER'S
DISTRIBUTIVE SHARE UNDER SEC. 182. 

WE THINK SUCH A CONCLUSION IS ERRONEOUS.  THE PARTNERSHIP AGREEMENT
AND THE SUBSEQUENT ARRANGEMENT BETWEEN THE EXECUTORS AND THE SURVIVING
PARTNERS CALLED FOR A VALUATION ON MR. ENRIGHT'S DEATH AND A
DISSOLUTION AS OF THAT DAY.  THIS NECESSITATED AN ACCOUNTING OF
PARTNERSHIP EARNINGS FOR THIS PERIOD.  BY THE TERMS OF THE AGREEMENT,
AS WOULD HAVE BEEN NECESSARY ANYWAY, THE EARNED PROPORTION OF THE
UNFINISHED BUSINESS WAS TO BE VALUED TO DETERMINE THE DECEDENT'S
INTEREST IN THE PARTNERSHIP ASSETS.  FN9  ASSUMING AT THIS POINT THAT
THE UNFINISHED BUSINESS IS ACCRUABLE, THIS ACCOUNTING AS OF THE TIME OF
DEATH WOULD SHOW THE PARTNERSHIP INCOME FOR THE TAXABLE YEAR OF THE
PARTNERSHIP.  FN10  AS THE NET INCOME OF THE PARTNERSHIP IS TO BE
ACCOUNTED FOR IN THE DECEASED PARTNER'S RETURN, WITHOUT CONSIDERATION
OF THE PERIOD OVER WHICH THE INCOME IS EARNED, THE FACT THAT THE
PAYMENT FOR THE UNFINISHED BUSINESS WILL NOT BE COLLECTED UNTIL ANOTHER
TAXABLE YEAR IS IMMATERIAL.  "CIRCUMSTANCES WHOLLY FORTUITOUS MAY
DETERMINE THE YEAR IN WHICH INCOME, WHENEVER EARNED, IS TAXABLE."  FN11
THE "DISTRIBUTIVE SHARE" REFERRED TO IN SEC. 182 DOES NOT MEAN
AVAILABLE IN CASH FOR PAYMENT TO THE PARTNER.  IT MEANS ONLY THAT GAINS
ATTRIBUTABLE TO THE PARTNER'S INTEREST IN THE FIRM WERE EARNED. 
PARTNERSHIP RETURNS MAY BE MADE ON A DIFFERENT BASIS OF COMPUTATION
THAN THOSE OF THE MEMBERS.  FN12  THUS BECAUSE OF THE PARTNERSHIP
ARRANGEMENT AND AGREEMENT, THE VALUE OF THE UNFINISHED BUSINESS MUST BE
DETERMINED AS OF THE DATE OF DEATH.  FURTHER, THE RESULT, UNDER THE
ASSUMPTION HERE THAT IT IS AN ACCRUAL, IS A DISTRIBUTIVE SHARE AND IS
TO BE CARRIED INTO THE PARTNER'S RETURN.  RESPONDENT'S ARGUMENT THAT
THE REQUIREMENT OF SEC. 182, INCLUDING ALL DISTRIBUTABLE SHARES IN THE
PARTNER'S RETURN, PUTS ALL PARTNERSHIP RETURNS ON THE ACCRUAL BASIS
FAILS TO GIVE WEIGHT TO THE FACT THAT A PARTNERSHIP ON THE CASH METHOD
SHOWS ONLY CASH RECEIPTS AS A PARTNER'S DISTRIBUTIVE SHARE.  THE
REQUIREMENT TO ACCOUNT FOR A DISTRIBUTIVE SHARE, ALTHOUGH THE SHARE IS
ACTUALLY NOT DISTRIBUTED, IS NOT A REQUIREMENT TO ACCOUNT FOR
PARTNERSHIP INCOME ON AN ACCRUAL BASIS.  SINCE A PARTNER'S RETURN OF
HIS PARTNERSHIP EARNINGS WOULD VARY, DEPENDENT UPON WHETHER THE
PARTNERSHIP USED THE CASH OR ACCRUAL METHOD OF ACCOUNTING, WE DO NOT
AGREE WITH RESPONDENT'S SUGGESTION. 

WE TURN NOW TO WHETHER THIS VALUATION OF THE DECEDENT'S INTEREST IN
THE PARTNERSHIP IS AN ACCRUAL OF INCOME WHICH MUST BE REFLECTED IN THE
INCOME TAX OR A VALUATION OF ASSETS ONLY REFLECTED IN ESTATE OR
INHERITANCE REPORTS.  THIS PARTNERSHIP USES THE CASH RECEIPTS METHOD. 
THERE WAS NO CUSTOMARY ACCOUNTING SYSTEM TO DETERMINE WHETHER THE VALUE
OF SERVICES RENDERED SHOULD BE ACCRUED BEFORE PAYMENT.  UNDER SUCH
CIRCUMSTANCES, WE ARE OF THE VIEW THAT ITEMS OF PARTNERSHIP INCOME
PROPERLY ACCRUED SHOULD BE INCLUDED IN THE INCOME TAX RETURN OF THE
DECEASED PARTNER.  THIS WILL CAUSE THE ACCRUED ITEMS OF PARTNERSHIP
RETURNS TO BE INCLUDED IN THE INCOME TAX RETURN OF A DECEASED PARTNER,
WHETHER THE PARTNERSHIP METHOD IS ACCRUAL OR CASH.  FN13 FURTHERMORE,
AN ACCRUAL OF COMPENSATION FOR THE UNFINISHED BUSINESS SEEMS SOUND IN
VIEW OF THE PURPOSE OF THE ENACTMENT OF SEC. 42. 

THE MEANING OF "AMOUNTS ACCRUED UP TO THE DATE OF HIS DEATH" IS CLEAR
AS TO FIXED RENT, INTEREST, SALARY OR WAGES FOR PERSONAL SERVICES AND
OTHER SIMILAR INCOME WHICH MAY READILY BE ATTRIBUTED TO A PARTICULAR
PERIOD.  THERE ARE LIKE DEDUCTIONS SUCH AS INTEREST AND TAXES.  FN14
THE UNCERTAINTY AS TO THE MEANING ARISES IN THE FIELD OF PERSONAL
SERVICE FROM ITEMS WHICH CANNOT BE ACCOUNTED FOR ON A BASIS OF
SUCCESSIVE EQUAL UNITS OF TIME.  EXAMPLES OF THE DIFFICULTY ARE THE
VALUE, PRIOR TO A SUCCESSFUL RESULT, OF SERVICES RENDERED ON A
CONTINGENT BASIS, DONE ON A QUANTUM MERUIT WHETHER THAT WOULD OR WOULD
NOT VARY WITH THE OUTCOME, OR EXPLORATORY OR PRELIMINARY STEPS LOOKING
TOWARDS FINAL ACCOMPLISHMENT. 

WHILE "ACCRUE" AND ITS VARIOUS DERIVATIVES ARE NOT NEW TO THE
NOMENCLATURE OF ACCOUNTING OR TAXATION, ITS USE HAS NOT SUFFICED TO
BUILD IT INTO A WORD OF ART WITH A DEFINITE CONNOTATION WHEN EMPLOYED
IN DESCRIBING ITEMS OF GROSS INCOME.  THE 1913 ACT  FN15  PUT THE
TAXPAYER ON AN ACTUAL CASH RECEIPT AND DISBURSEMENT BASIS.  THE 1916
ACT  FN16  GAVE THE TAXPAYER THE OPTION OF REPORTING ON EITHER THE CASH
OR ACCRUAL BASIS AND THE 1918 ACT LIMITED THE RETURN TO THE METHOD OF
ACCOUNTING REGULARLY EMPLOYED UNLESS OTHERWISE DIRECTED BY THE
COMMISSIONER OF INTERNAL REVENUE.  FN17  A SIMILAR PROVISION COVERS THE
YEAR HERE IN QUESTION.  FN18  THAT THE MEANING TO BE ATTRIBUTED TO
"ACCRUED" AS USED IN SEC. 42 IS TO BE GATHERED FROM ITS SURROUNDINGS IS
EMPHASIZED BY SEC. 48, DEFINITIONS, WHICH SAYS: 

"(C)  PAID, INCURRED, ACCRUED.  - THE TERMS 'PAID OR INCURRED' AND
'PAID OR ACCRUED' SHALL BE CONSTRUED ACCORDING TO THE METHOD OF
ACCOUNTING UPON THE BASIS OF WHICH THE NET INCOME IS COMPUTED UNDER
THIS PART."  FN19 

IT IS TO BE NOTED THAT NO CHANGE WAS MADE BY THE 1934 ACT IN THE SEC.
48 DEFINITION OF "ACCRUED."  FN20  YET, IT IS OBVIOUS THAT THE
DEFINITION IS INAPPLICABLE SINCE A TAXPAYER ON A CASH BASIS CANNOT HAVE
A "METHOD OF ACCOUNTING" BY WHICH THE MEANING OF ACCRUAL IS FIXED. 
CONSEQUENTLY IT IS BESIDE THE POINT TO GIVE WEIGHT TO PROVISIONS OF THE
REGULATIONS OR ACCOUNTING PRACTICES WHICH DO NOT RECOGNIZE ACCRUALS
UNTIL A DETERMINATION OF COMPENSATION.  FN21  SUCH PROVISIONS WHEN
APPLIED BRING THE INCOME INTO SUCCEEDING YEARS.  IT HAS BEEN FREQUENTLY
SAID, AND CORRECTLY, THAT SEC. 42 WAS AIMED AT PUTTING THE CASH RECEIPT
TAXPAYER ON THE ACCRUAL BASIS.  FN22 BUT THAT STATEMENT DOES NOT ANSWER
THE MEANING OF ACCRUAL IN THIS SECTION.  ACCOUNTS KEPT CONSISTENTLY ON
A BASIS OTHER THAN CASH RECEIPTS MIGHT TREAT ACCRUALS QUITE DIFFERENTLY
FROM A METHOD DESIGNED TO REFLECT THE EARNED INCOME OF A CASH RECEIPT
TAXPAYER.  ACCRUALS HERE ARE TO BE CONSTRUED IN FURTHERANCE OF THE
INTENT OF CONGRESS TO COVER INTO INCOME THE ASSETS OF DECEDENTS, EARNED
DURING THEIR LIFE AND UNREPORTED AS INCOME, WHICH ON A CASH RETURN,
WOULD APPEAR IN THE ESTATE RETURNS.  CONGRESS SOUGHT A FAIR REFLECTION
OF INCOME.  FN23 

ACCRUED INCOME OBVIOUSLY CONNOTES MORE THAN INTEREST.  IN UNITED
STATES V. AMERICAN CAN CO., FN24  THIS COURT APPROVED AN ACCRUAL BASIS
WHERE "PECUNIARY OBLIGATIONS TO OR BY THE COMPANY WERE TREATED AS IF
DISCHARGED WHEN INCURRED."  IN UNITED STATES V. ANDERSON  FN25
ACCRUALS OF FIXED ANNUAL CHARGES, E.G., TAXES PAYABLE IN ANOTHER YEAR,
WERE PERMITTED AGAINST DETERMINABLE GROSS INCOME.  "KEEPING ACCOUNTS
AND MAKING RETURNS ON THE ACCRUAL BASIS, AS DISTINGUISHED FROM THE CASH
BASIS, IMPORT THAT IT IS THE RIGHT TO RECEIVE AND NOT THE ACTUAL
RECEIPT THAT DETERMINES THE INCLUSION OF THE AMOUNT IN GROSS INCOME." 
FN26  THE COMPLETION OF THE WORK IN PROGRESS WAS NECESSARY TO FIX THE
AMOUNT DUE BUT THE RIGHT TO PAYMENT FOR WORK ORDINARILY ARISES ON
PARTIAL PERFORMANCE.  ACCRUED INCOME UNDER SEC. 42 FOR UNCOMPLETED
OPERATIONS INCLUDES THE VALUE OF THE SERVICES RENDERED BY THE DECEDENT,
CAPABLE OF APPROXIMATE VALUATION, WHETHER BASED ON THE AGREED
COMPENSATION OR ON QUANTUM MERUIT.  THE REQUIREMENT OF VALUATION
COMPREHENDS THE ELEMENTS OF COLLECTIBILITY.  FN27  THE ITEMS HERE MEET
THESE TESTS AND ARE SUBJECT TO ACCRUAL. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
DECISION OF THE BOARD OF TAX APPEALS AFFIRMED.  REVERSED. 

FN1  112 F.2D 919. 

FN2  113 F.2D 114.  SEE PFAFF V. COMMISSIONER, POST, P. 646. 

FN3  48 STAT. 680, C. 277:  "SEC.  42.  PERIOD IN WHICH ITEMS OF
GROSS INCOME INCLUDED.  THE AMOUNT OF ALL ITEMS OF GROSS INCOME SHALL
BE INCLUDED IN THE GROSS INCOME FOR THE TAXABLE YEAR IN WHICH RECEIVED
BY THE TAXPAYER, UNLESS, UNDER METHODS OF ACCOUNTING PERMITTED UNDER
DIFFERENT PERIOD.  IN THE CASE OF THE DEATH OF A TAXPAYER THERE SHALL
BE INCLUDED IN COMPUTING NET INCOME FOR THE TAXABLE PERIOD IN WHICH
FALLS THE DATE OF HIS DEATH, AMOUNTS ACCRUED UP TO THE DATE OF HIS
DEATH IF NOT OTHERWISE PROPERLY INCLUDIBLE IN RESPECT OF SUCH PERIOD OR
A PRIOR PERIOD."    FN4  AUGUST 28, 1939, BY MEMORANDUM OPINION.  CF.
LILLIAN O. FEHRMAN, EXECUTRIX, 38 B.T.A. 37. 

FN5  CF. REVENUE ACT OF 1932, 47 STAT. 169, C. 209, SEC. 42. 

FN6  H. REP. NO. 704, 73RD CONG., 2ND SESS., P. 24; S. REP. NO. 558,
73RD CONG., 2ND SESS., P. 28. 

THIS SITUATION FOLLOWED THE DECISION OF THE COURT OF CLAIMS IN
NICHOLS V. UNITED STATES, 64 CT. CLS. 241.  A DECEDENT ON THE CASH
BASIS WAS A MEMBER OF A PARTNERSHIP DISSOLVED BY HIS DEATH. 
COMMISSIONS EARNED BEFORE DEATH BUT UNPAID TO THE PARTNERSHIP WERE
VALUED IN THE ESTATE TAX AND COLLECTED BY THE PARTNERSHIP AFTER DEATH
FOR PAYMENT TO THE EXECUTORS.  THE COURT OF CLAIMS HELD SUMS PAID THE
EXECUTORS WERE PART OF THE CORPUS AND NOT INCOME. 

THE BOARD OF TAX APPEALS FOLLOWED THE REASONING OF THE COURT OF
CLAIMS.  WILLIAM G. FRANK, ADM., 6 B.T.A. 1071; E.S. HELLER, EXEC., 10
B.T.A. 53; GEORGE NICHOLS, EXEC., 10 B.T.A. 919; ESTATE OF A. PLUMER
AUSTIN, 10 B.T.A. 1055; WILLIAM K. VANDERBILT, EXEC., 11 B.T.A. 291; J.
HOWLAND AUCHINCLOSS, EXEC., 11 B.T.A. 947; WILLIAM P. BLODGET, EXEC.,
13 B.T.A. 1243; JACKSON B. KEMPER, ADM., 14 B.T.A. 931; MAURICE L.
GOLDMAN, 15 B.T.A. 1341. 

FN7  H. REP. SUPRA. 

FN8  "SEC.  182.  TAX OF PARTNERS.  THERE SHALL BE INCLUDED IN
COMPUTING THE NET INCOME OF EACH PARTNER HIS DISTRIBUTIVE SHARE,
WHETHER DISTRIBUTED OR NOT, OF THE NET INCOME OF THE PARTNERSHIP FOR
THE TAXABLE YEAR." 

FN9  WE DO NOT CONSIDER OR DECIDE WHETHER THIS ACCOUNTING FOR A
FRACTIONAL YEAR MAY AFFECT THE INDIVIDUAL RETURNS OF SURVIVING
PARTNERS.  NEITHER DO WE APPRAISE THE EFFECT OF ARGEEMENTS FOR
CONTINUATION OF AN INTEREST IN THE PARTNERSHIP AFTER DEATH.  SEE BULL
V. UNITED STATES, 295 U.S. 247. 

IF THE PARTNERSHIP HAD BEEN UPON AN ACCRUAL BASIS WHICH TREATED
ACCOUNTS AS ACCRUED UPON A DETERMINATION OF THE AMOUNT OF FEES, IT MAY
BE THAT A DECEDENT'S INTEREST WOULD NOT BE DISTRIBUTABLE UNTIL A LATER
YEAR.  IT MIGHT THEN BE INCOME TO THE ESTATE, EVEN THOUGH THE VALUE OF
THE RIGHT TO RECEIVE IT WAS INCLUDED IN THE ESTATE RETURN.  A
CONCLUSION AS TO THIS IS UNNECESSARY AND IS PRETERMITTED.  CF. NOTE 23,
THE CASES CITED IN NOTE 6 AND BULL V. UNITED STATES, 295 U.S. 247, 255,
256-57. 

FN10  "SEC.  48.  DEFINITIONS.  WHEN USED IN THIS TITLE - 

"(A)  TAXABLE YEAR.  - 'TAXABLE YEAR' MEANS THE CALENDAR YEAR, OR THE
FISCAL YEAR ENDING DURING SUCH CALENDAR YEAR, UPON THE BASIS OF WHICH
THE NET INCOME IS COMPUTED UNDER THIS PART.  'TAXABLE YEAR' INCLUDES,
IN THE CASE OF A RETURN MADE FOR A FRACTIONAL PART OF A YEAR UNDER THE
PROVISIONS OF THIS TITLE OR UNDER REGULATIONS PRESCRIBED BY THE
COMMISSIONER WITH THE APPROVAL OF THE SECRETARY, THE PERIOD FOR WHICH
SUCH RETURN IS MADE." 

FN11  GUARANTY TRUST CO. V. COMMISSIONER, 303 U.S. 493, 498. 

FN12 TRUMAN V. UNITED STATES, 4 F.SUPP.  447; SECS. 183 AND 187. 

FN13  THE INEVITABLE VARIATIONS OF "ACCRUED" WHICH DEPEND UPON
ESTABLISHED ACCOUNTING PRACTICE DO NOT DESTROY THE PRINCIPLE. 

FN14  CF. UNITED STATES V. ANDERSON, 269 U.S. 422. 

FN15  38 STAT. 114 AT 166. 

FN16  39 STAT. 756, SECS. 8(G) AND 13(D). 

FN17  40 STAT. 1057, SEC. 212(B). 

FN18  48 STAT. 680, SEC. 42. 

FN19  CF. ERNEST M. BULL, EXEC., 7 B.T.A. 993, 995. 

FN20  CF. SEC. 48(C) OF THE REVENUE ACT OF 1932, 47 STAT. 188. 

FN21  REGULATION 86, ART. 42-1. 

FN22  LILLIAN O. FEHRMAN, EXEC., 38 B.T.A. 37; ESTATE OF WILTON J.
LAMBERT, 40 B.T.A. 802, 806; ESTATE OF G. PERCY MCGLUE, 41 B.T.A. 1186,
1193; ENRIGHT V. COMMISSIONER, 112 F.2D 919, THIS CASE BELOW. 

FN23  IT IS IMMATERIAL THAT ALL POSSIBILITY OF ESCAPING AN INCOME TAX
IS NOT BARRED, AS FOR INSTANCE THE INCREASED VALUE OF ASSET ITEMS IN AN
ESTATE RETURN.  ACT, 113(A)(5)  "...  THE ENTIRE FIELD OF PROPER
LEGISLATION (NEED NOT) BE COVERED BY A SINGLE ENACTMENT."  ROSENTHAL V.
NEW YORK, 226 U.S. 260, 271; CF. KEOKEE COKE CO. V. TAYLOR, 234 U.S.
224, 227. 

FN24  280 U.S. 412, 417. 

FN25  269 U.S. 422, 437. 

FN26  SPRING CITY CO. V. COMMISSIONER, 292 U.S. 182, 184; GUARANTY
TRUST CO. V. COMMISSIONER, 303 U.S. 493, 498. 

FN27  CF. PARLIN, ACCRUALS TO DATE OF DEATH, 87 U. OF PA. L. REV.
294, 301; FARRAND & FARRAND, TREATMENT OF ACCRUED ITEMS ON DEATH, 13
SO. CAL. L. REV. 431. 
..END :

















PFAFF V. COMMISSIONER, 312 U.S. 646 


NO. 479.  ARGUED MARCH 4, 5, 1941.  - DECIDED MARCH 31, 1941.  - 113
F.2D 114, AFFIRMED. 


DECIDED UPON THE AUTHORITY OF HELVERING V. ESTATE OF ENRIGHT, ANTE, P.
636.  P. 647. 

PFAFF ET AL., EXECUTORS, V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 639, TO REVIEW A JUDGMENT WHICH AFFIRMED A
DECISION OF THE BOARD OF TAX APPEALS SUSTAINING A DEFICIENCY
ASSESSMENT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE SAME QUESTION AS HELVERING V. ESTATE OF
ENRIGHT, ANTE, P. 636.  PETITIONERS ARE THE EXECUTORS OF A DECEASED
PHYSICIAN WHO DURING 1935 WAS A MEMBER OF A MEDICAL PARTNERSHIP AND
ENTITLED TO FORTY PER CENT OF ITS PROFITS.  HE DIED DECEMBER 25, 1935,
ON WHICH DATE THERE WERE OUTSTANDING ABOUT $69,000 OF PARTNERSHIP
ACCOUNTS RECEIVABLE FOR SERVICES RENDERED TO PATIENTS DURING HIS
LIFETIME.  HIS DEATH WORKED A DISSOLUTION OF THE PARTNERSHIP UNDER SEC.
62(4) OF THE NEW YORK PARTNERSHIP LAW.  THE DECEDENT'S INTEREST IN
THESE ACCOUNTS CAME TO OVER $27,000.  BOTH HE AND THE PARTNERSHIP WERE
ON A CASH BASIS.  PURSUANT TO SEC. 42 OF THE REVENUE ACT OF 1934 AND
ARTICLE 42(1) OF TREASURY REGULATIONS 86, THE COMMISSIONER INCLUDED THE
DECEDENT'S SHARE OF THE ACCOUNTS RECEIVABLE IN HIS 1935 INCOME, THOUGH
ONLY AT ABOUT ONE-FIFTH OF FACE VALUE.  THE BOARD OF TAX APPEALS
SUSTAINED THE COMMISSIONER'S VIEW OF THE STATUTE, AND ALSO RULED THAT
THE VALUATION OF THE DECEDENT'S INTEREST IN THE ACCOUNTS AT ONE-FIFTH
OF FACE VALUE WAS AMPLY SUPPORTED.  THE CIRCUIT COURT OF APPEALS,
WITHOUT WRITING AN OPINION, AFFIRMED THE BOARD.  113 F.2D 114.  BECAUSE
OF A CONFLICT WITH THE THIRD CIRCUIT'S DECISION IN THE ENRIGHT CASE,
SUPRA, WE GRANTED CERTIORARI. 

THERE IS NO RELEVANT DIFFERENCE BETWEEN THESE FACTS AND HELVERING V.
ESTATE OF ENRIGHT.  FOR THE REASONS STATED IN THAT OPINION IT WAS
PROPER TO INCLUDE IN THE DECEDENT'S 1935 INCOME THE FAIR VALUE OF HIS
INTEREST IN THE ACCOUNTS.  AFFIRMED. 
..END :









MAGUIRE V. COMMISSIONER, 313 U.S. 1 


NO. 346.  ARGUED MARCH 5, 6, 1941.  - DECIDED MARCH 31, 1941.  - 111
F.2D 843, AFFIRMED. 


1.  UNDER THE REVENUE ACT OF 1928, THE BASIS FOR ASCERTAINING GAIN OR
LOSS FROM THE SALE OF PERSONALTY WHICH HAD BEEN DELIVERED TO THE
TAXPAYER BY TESTAMENTARY TRUSTEES IS - 

(1)  IN THE CASE OF PERSONALTY WHICH THE DECEDENT OWNED, ITS VALUE AT
THE TIME WHEN IT WAS RECEIVED BY THE TRUSTEES FROM THE EXECUTORS.  P.
3. 

(A)  THIS CONCLUSION IS SUPPORTED BY THE LEGISLATIVE HISTORY OF THE
APPLICABLE PROVISION OF SEC. 113(A)(5) OF THE ACT.  P. 5. 

(B)  UNDER SEC. 113(A)(5), WHICH PROVIDES THAT THE BASIS FOR
ASCERTAINING GAIN OR LOSS FROM THE SALE OF PROPERTY ACQUIRED BY GENERAL
BEQUEST SHALL BE THE VALUE AT THE TIME OF THE "DISTRIBUTION TO THE
TAXPAYER," THE TIME OF "DISTRIBUTION TO THE TAXPAYER" IN THIS CASE WAS
THE TIME OF THE DELIVERY OF THE PROPERTY TO THE TRUSTEES BY THE
EXECUTORS.  P. 7. 

(2) IN THE CASE OF PERSONALTY PURCHASED BY THE TRUSTEES, THE COST
THEREOF TO THE TRUSTEES.  P. 8. 

(A)  THE PROPERTY PURCHASED BY THE TESTAMENTARY TRUSTEES AND
SUBSEQUENTLY DELIVERED TO THE TAXPAYER WAS NOT "ACQUIRED BY WILL"; AND
THE BASIS IS GOVERNED BY SEC. 113(A), NOT BY SEC. 113(A)(5).  P. 9. 

2.  ALTHOUGH THE TITLE OF AN ACT MAY NOT BE CONSTRUED TO LIMIT THE
PLAIN MEANING OF THE TEXT, IT MAY BE OF AID IN RESOLVING AN AMBIGUITY. 
P. 9. 

MAGUIRE ET UX. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 311 U.S. 627, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS REDETERMINING A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE TAXPAYER'S  FN1  SHARE OF A TESTAMENTARY TRUST, ESTABLISHED
PURSUANT TO THE WILL OF HER FATHER, WAS DELIVERED TO HER IN KIND IN
1923.  THE PROPERTY WAS PERSONALTY, PART OF WHICH HAD BEEN OWNED BY THE
DECEDENT AND PART PURCHASED BY THE TRUSTEES.  THE DECEDENT DIED IN 1903
AND HIS EXECUTORS WERE DISCHARGED BY THE PROBATE COURT IN 1905. 
PURSUANT TO THAT ORDER THE EXECUTORS TURNED OVER TO THEMSELVES, AS
TRUSTEES, ALL OF THE RESIDUE OF THE ESTATE.  FN2  FROM THAT RESIDUE THE
TAXPAYER'S CLAIM TO THE PROPERTY IN QUESTION DERIVED.  DURING THE YEAR
1930 PARTS OF BOTH GROUPS OF PROPERTY WERE SOLD.  FN3  THE QUESTIONS
PRESENTED RELATE TO THE PROPER BASIS UNDER THE REVENUE ACT OF 1928(45
STAT. 791) FOR DETERMINING GAIN OR LOSS UPON THOSE SALES:  (1) WHETHER
THE BASIS IN CASE OF THE PERSONALTY OWNED BY DECEDENT IS ITS VALUE WHEN
RECEIVED BY THE TRUSTEES FROM THE EXECUTORS OR ITS VALUE AT THE DATE OF
DELIVERY BY THE TRUSTEES TO THE TAXPAYER; AND (2) WHETHER THE BASIS IN
CASE OF THE PERSONALTY PURCHASED BY THE TRUSTEES IS ITS COST TO THE
TRUSTEES OR ITS VALUE AT THE DATE OF DELIVERY BY THE TRUSTEES TO THE
TAXPAYER.  THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE
GRANTED BECAUSE OF A CONFLICT AMONG THE CIRCUITS ON THOSE TWO
QUESTIONS.  FN4 

I. AS RESPECTS THE PROPERTY OWNED BY THE DECEDENT AT HIS DEATH, WE
ARE OF THE VIEW THAT THE DATE WHEN IT WAS RECEIVED BY THE TRUSTEES FROM
THE EXECUTORS, RATHER THAN THE DATE WHEN IT WAS DELIVERED BY THE
TRUSTEES TO THE TAXPAYER, GOVERNS.  IN THE CASE OF GENERAL BEQUESTS,
SEC. 113(A)(5) OF THE REVENUE ACT OF 1928 PROVIDED THAT "THE BASIS
SHALL BE THE FAIR MARKET VALUE OF THE PROPERTY AT THE TIME OF THE
DISTRIBUTION TO THE TAXPAYER."  FN5  BUT IN CASE OF SPECIFIC BEQUESTS
OF PERSONALTY OR IN CASE OF REALTY, THE BASIS WAS THE FAIR MARKET VALUE
OF THE PROPERTY AT THE DEATH OF THE DECEDENT.  SEC. 113(A)(5).  IN THE
LATTER CASES THE PROPERTY EITHER VESTED IN THE HEIR OR DEVISEE AT DEATH
OR WAS RATHER DEFINITELY MARKED AT THE TIME OF DEATH FOR THE LEGATEE. 
IN THE FORMER THE LEGATEE NORMALLY MUST HAVE AWAITED ADMINISTRATION OF
THE ESTATE BEFORE THE PROPERTY BEQUEATHED TO HIM COULD HAVE BEEN
IDENTIFIED WITH CERTAINTY.  THAT DIFFERENCE SUGGESTS THE DISTINCTION IN
TREATMENT UNDER SEC. 113(A)(5) OF GENERAL BEQUESTS OF PERSONALTY.  IT
EMPHASIZES THAT THE WORDS "AT THE TIME OF THE DISTRIBUTION TO THE
TAXPAYER" MEANT THE TIME WHEN THE DISTRIBUTION WAS MADE OUT OF THE
ESTATE.  IT SUPPORTS THE VIEW THAT CONGRESS FOCUSED SEC. 113(A)(5) ON
THE DECEDENT'S DEATH AND THE ADMINISTRATION OF HIS ESTATE, AND NOT ON
SUBSEQUENT TRANSFERS OR TRANSMISSIONS OF THE PROPERTY. 

THE LEGISLATIVE HISTORY OF SEC. 113(A)(5) LENDS SUPPORT TO THAT
CONCLUSION.  PRIOR TO THE 1928 ACT THE BASIS FOR PROPERTY OBTAINED BY
BEQUEST, DEVISE, OR INHERITANCE WAS THE FAIR MARKET VALUE "AT THE TIME
OF SUCH ACQUISITION."  FN6  THE HOUSE BILL  FN7  WHICH BECAME THE
REVENUE ACT OF 1928 PROVIDED THAT THE BASIS FOR ALL PROPERTY ACQUIRED
BY BEQUEST, DEVISE, OR INHERITANCE SHOULD BE THE FAIR MARKET VALUE OF
THE PROPERTY AT THE DATE OF THE DECEDENT'S DEATH - A PROVISION DESIGNED
TO CLARIFY  FN8  THE MEANING OF "ACQUISITION" IN THE EARLIER ACTS.  FN9
IN THE SENATE THAT LANGUAGE OF SEC. 113(A)(5) WAS CHANGED TO THE FORM
IN WHICH IT APPEARED IN THE REVENUE ACT OF 1928 - A CHANGE SPECIFICALLY
DESIGNED TO AVOID THE CONFUSION AS TO THE BASIS ON WHICH GAIN OR LOSS
ON THE SALE OF PROPERTY PURCHASED BY THE EXECUTOR AND DISTRIBUTED TO
BENEFICIARIES WAS TO BE DETERMINED.  FN10 

THERE DOES NOT APPEAR TO BE THE SLIGHTEST SUGGESTION THAT THIS CHANGE
WAS DESIGNED AS A SUBSTANTIAL DEPARTURE FROM THE VALUE-AT-DEATH RULE. 
TO BE SURE, IT DID PRODUCE A LIMITED DEVIATION FROM THAT PRINCIPLE IN
THAT NO INCOME TAX EFFECT WAS TO BE GIVEN CHANGES IN VALUE OF PERSONAL
PROPERTY, PASSING OTHERWISE THAN BY SPECIFIC BEQUEST, DURING THE
ADMINISTRATION OF THE ESTATE.  BUT TO HOLD THAT IT EFFECTED THE CHANGE
WHICH PETITIONER URGES WOULD BE TO IMPUTE TO CONGRESS A PURPOSE TO GO
FAR BEYOND THE EXIGENCIES OF THE SPECIFIC SITUATIONS WITH WHICH IT WAS
DEALING. 

THE LANGUAGE USED DOES NOT REQUIRE THAT RESULT.  "DISTRIBUTION TO THE
TAXPAYER" IS NOT NECESSARILY RESTRICTED TO SITUATIONS WHERE PROPERTY IS
DELIVERED TO THE TAXPAYER.  IT ALSO APTLY DESCRIBES THE CASE WHERE
PROPERTY IS DELIVERED BY THE EXECUTORS TO TRUSTEES IN TRUST FOR THE
TAXPAYER.  SUCH DISTRIBUTION OF THE ESTATE RESULTS IN THE ACQUISITION
BY THE TAXPAYER OF AN EQUITABLE ESTATE UNDER THE TESTAMENTARY TRUST. 
THE FACT THAT HE DOES NOT THEN OBTAIN POSSESSION OR CONTROL, THE FACT
THAT HIS INTEREST IS CONDITIONAL OR CONTINGENT, THE FACT THAT LEGAL
TITLE MAY NOT BE TRANSFERRED TO HIM UNTIL YEARS LATER, ARE IMMATERIAL. 
SEC. 113(A)(5) MERELY PROVIDED A POINT OF REFERENCE AND A STANDARD OF
VALUE FOR DETERMINATION OF GAINS OR LOSSES REALIZED ON SUBSEQUENT SALES
OF PROPERTY ACQUIRED BY BEQUEST, DEVISE, OR INHERITANCE.  IN BREWSTER
V. GAGE, 280 U.S. 327, 334, THIS COURT HELD UNDER EARLIER ACTS  FN11
THAT THE DATE OF DEATH WAS THE DATE OF "ACQUISITION" EVEN IN CASE OF A
RESIDUARY LEGATEE WHOSE INTEREST AT THE DATE OF DEATH CLEARLY WAS NOT
ABSOLUTE.  THAT CONCLUSION SUGGESTS THAT THE CRITICAL DATE IS THE TIME
WHEN THE LEGATEE ACQUIRES SOME INTEREST IN THE PROPERTY ALTHOUGH HIS
INTEREST THEN MAY NOT BE UNCONDITIONAL.  HENCE, IN CASE OF REMAINDERS
GOVERNED BY SEC. 113(A)(5) OF THE 1928 ACT, IT CANNOT REALISTICALLY BE
ASSERTED THAT THE DATE WHEN THE REMAINDERMAN ACQUIRED HIS INTEREST CAME
LATER THAN THE TIME WHEN HE OBTAINED AN EQUITABLE ESTATE UNDER THE
TESTAMENTARY TRUST. 

THERE ARE OTHER REASONS WHY WE CANNOT INFER THAT CONGRESS INTENDED TO
MAKE MORE THAN A LIMITED DEPARTURE FROM THE VALUE-AT-DEATH PRINCIPLE IN
ENACTING SEC. 113(A)(5) OF THE 1928 ACT.  AS RESPONDENT POINTS OUT,
THERE WOULD BE A SUBSTANTIAL DISPARITY BETWEEN THE TREATMENT OF
REMAINDERMEN OF REALTY AND REMAINDERMEN OF PERSONALITY UNDER THE SAME
TESTAMENTARY TRUST, IF THE LATTER WERE GIVEN A BASIS OF VALUE AT THE
TIME OF DISTRIBUTION BY THE TRUST.  FURTHERMORE, WE CANNOT ON THE BASIS
OF THE LEGISLATIVE HISTORY OF SEC. 113(A)(5) IMPUTE TO CONGRESS A
PURPOSE TO ALLOW TRUSTEES EITHER TO SELL THE PROPERTY OR TO DISTRIBUTE
IT IN KIND, AS WOULD BE MOST ADVANTAGEOUS FOR TAX PURPOSES.  THE
CREATION OF SUCH AN OPPORTUNITY FOR MANIPULATION OF TAX LIABILITY
CANNOT BE LIGHTLY PRESUMED.  SIMILARLY WE CANNOT ASSUME IN ABSENCE OF
EXPLICIT PROVISIONS THAT CONGRESS INTENDED TO CREATE SUBSTANTIAL
PERIODS OF TIME FOLLOWING THE DATE OF DEATH DURING WHICH THE VALUE OF
THE PROPERTY BEQUEATHED WOULD HAVE NO INCIDENCE AS RESPECTS SUBSEQUENT
GAINS OR LOSSES.  RESPECT FOR THE OBVIOUS SYMMETRY OF THIS STATUTORY
SCHEME INDUCES THE CONCLUSION THAT THERE WAS A "DISTRIBUTION TO THE
TAXPAYER" WHEN THIS PROPERTY WAS DELIVERED BY THE EXECUTORS TO THE
TRUSTEES.  FN12 

II.  AS RESPECTS THE PROPERTY WHICH WAS PURCHASED BY THE TRUSTEES, WE
ARE OF THE VIEW THAT ITS COST TO THEM, RATHER THAN ITS VALUE AT THE
DATE OF DELIVERY TO THE TAXPAYER, GOVERNS.  SEC. 113(A) PROVIDED THAT
THE BASIS IN CASE OF PROPERTY ACQUIRED AFTER FEBRUARY 28, 1913, SHOULD
BE "THE COST OF SUCH PROPERTY."  FN13  THAT STANDARD CONTROLS HERE
UNLESS THESE TRANSACTIONS ARE GOVERNED BY THE PROVISION OF SEC.
113(A)(5) THAT, "IN ALL OTHER CASES IF THE PROPERTY WAS ACQUIRED EITHER
BY WILL OR BY INTESTACY, THE BASIS SHALL BE THE FAIR MARKET VALUE OF
THE PROPERTY AT THE TIME OF THE DISTRIBUTION TO THE TAXPAYER."  THE
LATTER PROVISION IS APPLICABLE IF THE PROPERTY IN QUESTION WAS
"ACQUIRED  ...  BY WILL."  WE THINK IT WAS NOT. 

THE TITLE OF SEC. 113(A)(5) IS "PROPERTY TRANSMITTED AT DEATH." 
WHILE THE TITLE OF AN ACT WILL NOT LIMIT THE PLAIN MEANING OF THE TEXT
(CAMINETTI V. UNITED STATES, 242 U.S. 470, 490; STRATHEARN S.S. CO. V.
DILLON, 252 U.S. 348, 354), IT MAY BE OF AID IN RESOLVING AN
AMBIGUITY.  KNOWLTON V. MOORE, 178 U.S. 41, 65.  IT SUGGESTS, AS DOES
THE LEGISLATIVE HISTORY WHICH WE HAVE RELATED, THAT THE FOREGOING
PROVISION OF SEC. 113(A)(5) WAS CONFINED, WITH MINOR EXCEPTIONS, TO THE
SPECIFIC PROPERTY OWNED BY THE DECEDENT AT HIS DEATH.  TO BE SURE, THE
TAXPAYER'S RIGHT IN THE PROPERTY IN QUESTION HAD ITS SOURCE IN THE
PROVISIONS OF THE WILL.  BUT THERE IS NO INDICATION THAT CONGRESS IN
DRAFTING SEC. 113(A)(5) LOOKED BEYOND THE DISTRIBUTION OF THE ESTATE BY
THE EXECUTORS.  IN THAT CONNECTION, THE SENATE REPORT SPECIFICALLY
STATED THAT THE FOREGOING PROVISION OF SEC. 113(A)(5) GOVERNED
PURCHASES BY THE EXECUTORS.  FN14  NO REFERENCE WAS MADE TO PURCHASES
BY TESTAMENTARY TRUSTEES.  THE INFERENCE IS STRONG THAT CONGRESS WAS
FASHIONING SEC. 113(A)(5) ON THE THEORY THAT FOR INCOME TAX PURPOSES
ACQUISITION OF PERSONAL PROPERTY PASSING BY GENERAL BEQUEST OR
INTESTACY DID NOT OCCUR UNTIL DISTRIBUTION OF THE ESTATE WAS MADE.  IN
THAT POSTURE OF THE PROBLEM, PROPERTY PURCHASED BY THE EXECUTOR
(ACTING, SO TO SPEAK, IN THE DECEDENT'S STEAD) PRIOR TO THAT
DISTRIBUTION WAS ACQUIRED BY THE DISTRIBUTEE "BY WILL."  BUT ONCE THE
ADMINISTRATION OF THE ESTATE HAD BEEN COMPLETED AND THE BASIC
TESTAMENTARY DISPOSITION EFFECTED, SUBSEQUENT PURCHASES WERE TO BE
GOVERNED BY COST AS PROVIDED IN SEC. 113(A).  PROPERTY SO PURCHASED
WOULD NOT BE PART OF THE ORIGINAL INHERITANCE.  CERTAINLY IF THE
TRUSTEES THEMSELVES HAD SOLD THE PROPERTY, THE TRANSACTION WOULD HAVE
BEEN TAXABLE ON THE COST BASIS.  TO HOLD THAT A DIFFERENT BASIS APPLIES
IN CASE THE BENEFICIARY MADE THE SALE WOULD BE TO OPEN AN AVENUE FOR
TAX AVOIDANCE.  FURTHERMORE, WE ARE DEALING HERE WITH A STATUTORY
SCHEME WHICH IN GENERAL RECOGNIZES VALUE AT THE DATE OF DEATH IN
COMPUTING SUBSEQUENT GAINS OR LOSSES.  WE ARE NOT INCLINED IN ABSENCE
OF CLEAR AND UNAMBIGUOUS LANGUAGE TO IMPLY A GREATER DEVIATION FROM
THAT PRINCIPLE THAN THAT WHICH IS NECESSITATED BY THE DECLARED
OBJECTIVE OF CONGRESS.  AFFIRMED. 

FN1  PETITIONERS ARE HUSBAND AND WIFE WHO FILED A JOINT RETURN.  THE
INCOME HERE INVOLVED IS THAT OF THE WIFE. 

FN2  THE WILL DIRECTED THE EXECUTORS AND TRUSTEES, NOT LESS THAN TEN
AND NOT MORE THAN TWENTY YEARS AFTER THE DEATH OF THE TESTATOR, TO MAKE
FINAL DISTRIBUTION OF THIS RESIDUE AS FOLLOWS: "...  TO MY WIFE THE ONE
THIRD PART THEREOF, THE BALANCE TO BE EQUALLY DIVIDED AMONG MY
CHILDREN, SHARE AND SHARE ALIKE, AND SHOULD MY WIFE NOT BE LIVING AT
THE TIME OF SUCH DISTRIBUTION, THEN THE SAME SHALL BE DIVIDED EQUALLY
AMONG MY CHILDREN, SHARE AND SHARE ALIKE, THE DESCENDANTS OF ANY
DECEASED CHILDREN IN SUCH DISTRIBUTION TO TAKE THE PROPORTION OF THEIR
DECEASED PARENT,  ..." 

FN3  THE SALES WERE MADE BY TRUSTEES OF NEW INTER VIVOS TRUSTS UNDER
WHICH THE PROPERTY HAD BEEN PLACED ON ITS DELIVERY IN 1923.  IT WAS
STIPULATED THAT THE BENEFICIARIES (INCLUDING THE TAXPAYER) WERE TAXABLE
AS THOUGH THE SALES WERE MADE BY THEM INDIVIDUALLY. 

FN4  THE OPINION OF THE COURT BELOW IS REPORTED AT 111 F.2D 843.  ON
THE FIRST QUESTION IT HELD THAT THE BASIS WAS THE VALUE AT THE TIME THE
PROPERTY WAS RECEIVED BY THE TRUSTEES FROM THE EXECUTORS; ON THE
SECOND, THAT THE BASIS WAS COST TO THE TRUSTEES.  ON THOSE TWO
QUESTIONS THAT DECISION IS IN CONFLICT WITH COMMISSIONER V. GAMBRILL,
112 F.2D 530, FROM THE SECOND CIRCUIT COURT OF APPEALS.  AND SEE
COMMISSIONER V. LIBBEY, 100 F.2D 458. 

FN5  SEC. 113(A)(5) PROVIDED:  "(A)  PROPERTY ACQUIRED AFTER FEBRUARY
28, 1913.  - THE BASIS FOR DETERMINING THE GAIN OR LOSS FROM THE SALE
OR OTHER DISPOSITION OF PROPERTY ACQUIRED AFTER FEBRUARY 28, 1913,
SHALL BE THE COST OF SUCH PROPERTY; EXCEPT THAT  ...  (5) PROPERTY
TRANSMITTED AT DEATH.  - IF PERSONAL PROPERTY WAS ACQUIRED BY SPECIFIC
BEQUEST, OR IF REAL PROPERTY WAS ACQUIRED BY GENERAL OR SPECIFIC DEVISE
OR BY INTESTACY, THE BASIS SHALL BE THE FAIR MARKET VALUE OF THE
PROPERTY AT THE TIME OF THE DEATH OF THE DECEDENT.  IF THE PROPERTY WAS
ACQUIRED BY THE DECEDENT'S ESTATE FROM THE DECEDENT, THE BASIS IN THE
HANDS OF THE ESTATE SHALL BE THE FAIR MARKET VALUE OF THE PROPERTY AT
THE TIME OF THE DEATH OF THE DECEDENT.  IN ALL OTHER CASES IF THE
PROPERTY WAS ACQUIRED EITHER BY WILL OR BY INTESTACY, THE BASIS SHALL
BE THE FAIR MARKET VALUE OF THE PROPERTY AT THE TIME OF THE
DISTRIBUTION TO THE TAXPAYER.  IN THE CASE OF PROPERTY TRANSFERRED IN
TRUST TO PAY THE INCOME FOR LIFE TO OR UPON THE ORDER OR DIRECTION OF
THE GRANTOR, WITH THE RIGHT RESERVED TO THE GRANTOR AT ALL TIMES PRIOR
TO HIS DEATH TO REVOKE THE TRUST, THE BASIS OF SUCH PROPERTY IN THE
HANDS OF THE PERSONS ENTITLED UNDER THE TERMS OF THE TRUST INSTRUMENT
TO THE PROPERTY AFTER THE GRANTOR'S DEATH SHALL, AFTER SUCH DEATH, BE
THE SAME AS IF THE TRUST INSTRUMENT HAD BEEN A WILL EXECUTED ON THE DAY
OF THE GRANTOR'S DEATH;" 

SEC. 113(B) PROVIDED:  "(B)  PROPERTY ACQUIRED BEFORE MARCH 1, 1913. 
- THE BASIS FOR DETERMINING THE GAIN OR LOSS FROM THE SALE OR OTHER
DISPOSITION OF PROPERTY ACQUIRED BEFORE MARCH 1, 1913, SHALL BE:  (1)
THE COST OF SUCH PROPERTY (OR, IN THE CASE OF SUCH PROPERTY AS IS
DESCRIBED IN SUBSECTION (A)  ...  (5)  ... OF THIS SECTION, THE BASIS
AS THEREIN PROVIDED), OR (2) THE FAIR MARKET VALUE OF SUCH PROPERTY AS
OF MARCH 1, 1913, WHICHEVER IS GREATER."    FN6  REVENUE ACT OF 1921(42
STAT. 227) SEC. 202(A); REVENUE ACT OF 1924(43 STAT. 253) SEC. 204(A);
REVENUE ACT OF 1926(44 STAT. 9) SEC. 204(A). 

FN7  H.R. 1, 70TH CONG., 1ST SESS. 

FN8  H. REP. NO. 2, 70TH CONG., 1ST SESS., INT. REV. BULL., CUM.
BULL.  1939-1, PT. 2, P. 396.  AND SEE REPORT OF THE JOINT COMMITTEE ON
INTERNAL REVENUE TAXATION, H. DOC. NO. 139, 70TH CONG., 1ST SESS., PP.
17-18. 

FN9  MUCH OF THAT CONFUSION WAS LATER ELIMINATED BY BREWSTER V. GAGE,
280 U.S. 327, HOLDING THAT IN CASE OF A RESIDUARY LEGATEE OF PERSONAL
PROPERTY THE TIME OF "ACQUISITION" WAS THE DATE OF DECEDENT'S DEATH,
NOT THE DATE OF DISTRIBUTION OF THE PROPERTY BY THE EXECUTORS TO THE
LEGATEE.  THAT DECISION WAS RENDERED IN 1930 UNDER THE 1918 AND 1921
ACTS.  THE WORDING OF SEC. 113(A)(5) CONTAINED IN THE 1928 ACT WAS
CONTINUED IN THE 1932 ACT (47 STAT. 169, 199).  BUT UNDER THE 1934 ACT
(48 STAT. 680, 706) THERE WAS A RETURN TO THE LANGUAGE OF THE 1926 ACT,
THE SENATE REPORT STATING:  "SECTION 113(A) 5 OF THE REVENUE ACT OF
1932 IS A REENACTMENT OF A SIMILAR PROVISION CONTAINED IN THE 1928
ACT.  THE CHANGE IN THE 1928 ACT WAS MADE BECAUSE THERE WAS SOME DOUBT
AS TO THE MEANING OF THE TERM 'DATE OF ACQUISITION,' WHICH WAS THE TERM
USED UNDER THE REVENUE ACT OF 1926.  SINCE THE 1928 ACT WAS PASSED, THE
SUPREME COURT HAS DEFINED 'THE DATE OF ACQUISITION' TO MEAN THE DATE OF
DEATH IN THE CASE OF ALL PROPERTY PASSING BY BEQUEST, DEVISE, AND
INHERITANCE, WHETHER REAL OR PERSONAL.  (BREWSTER V. GAGE, 280 U.S.
327.)  SECTION 113(A) 5 OF THE HOUSE BILL CONFORMS TO THE LANGUAGE
CONTAINED IN THE REVENUE ACT OF 1926, SO THAT A UNIFORM BASIS RULE MAY
BE REQUIRED IN THE CASE OF PROPERTY PASSING AT DEATH, WHETHER REAL OR
PERSONAL."  S. REP. NO. 558, 73D CONG., 2D SESS., INT. REV. BULL.,
SUPRA NOTE 8, PP. 612-613. 

FN10  S. REP. NO. 960, 70TH CONG., 1ST SESS., INT. REV. BULL., SUPRA
NOTE 8, P. 409, WHERE IT WAS SAID (P. 427):  "IT APPEARS THAT THE HOUSE
BILL IS INADEQUATE TO TAKE CARE OF A NUMBER OF SITUATIONS WHICH
FREQUENTLY ARISE.  FOR EXAMPLE, THE EXECUTOR, PURSUANT TO THE TERMS OF
THE WILL, MAY PURCHASE PROPERTY AND DISTRIBUTE IT TO THE BENEFICIARIES,
IN WHICH CASE IT IS IMPOSSIBLE TO USE THE VALUE AT THE DECEDENT'S DEATH
AS THE BASIS FOR DETERMINING SUBSEQUENT GAIN OR LOSS, FOR THE DECEDENT
NEVER OWNED THE PROPERTY.  MOREOVER, THE FAIR MARKET VALUE OF THE
PROPERTY AT THE DECEDENT'S DEATH CAN NOT PROPERLY BE USED AS THE BASIS,
IN CASE OF PROPERTY TRANSFERRED IN CONTEMPLATION OF DEATH WHERE THE
DONEE SELLS THE PROPERTY WHILE THE DONOR IS LIVING. 

"ACCORDINGLY, THE COMMITTEE HAS REVISED SECTION 113(A) 5 AND CERTAIN
RELATED SECTIONS, SO AS TO PROVIDE THAT IN THE CASE OF A SPECIFIC
BEQUEST OF PERSONALTY OR A GENERAL OR SPECIFIC DEVISE OF REALTY, OR THE
TRANSMISSION OF REALTY BY INTESTACY, THE BASIS SHALL BE THE FAIR MARKET
VALUE AT THE TIME OF THE DEATH OF THE DECEDENT.  IN THESE CASES IT MAY
BE SAID, AS A MATTER OF SUBSTANCE, THAT THE PROPERTY FOR ALL PRACTICAL
PURPOSES VESTS IN THE BENEFICIARY IMMEDIATELY UPON THE DECEDENT'S
DEATH, AND THEREFORE THE VALUE AT THE DATE OF DEATH IS A PROPER VASIS
FOR THE DETERMINATION OF GAIN OR LOSS TO THE BENEFICIARY.  THE SAME
RULE IS APPLIED TO REAL AND PERSONAL PROPERTY TRANSMITTED BY THE
DECEDENT, WHERE THE SALE IS MADE BY THE EXECUTOR.  IN ALL OTHER CASES
THE BASIS IS THE FAIR MARKET VALUE OF THE PROPERTY AT THE TIME OF THE
DISTRIBUTION TO THE TAXPAYER.  THE LATTER RULE WOULD OBTAIN, FOR
EXAMPLE, IN THE CASE OF PERSONAL PROPERTY NOT TRANSMITTED TO THE
BENEFICIARY BY SPECIFIC BEQUEST, BUT BY GENERAL BEQUEST OR BY
INTESTACY.  IT WOULD ALSO APPLY IN CASES WHERE THE EXECUTOR PURCHASES
PROPERTY AND DISTRIBUTES IT TO THE BENEFICIARY." 

FN11  SEE NOTE 9, SUPRA. 

FN12  WE ARE NOT AIDED BY ADMINISTRATIVE CONSTRUCTION.  THE BUREAU OF
INTERNAL REVENUE ORIGINALLY TOOK THE VIEW WHICH WE HAVE REACHED. 
G.C.M. 6195, VIII - 1 CUM. BULL.  99(1929).  THIS VIEW WAS REVERSED IN
G.C.M. 11309, XII - 1 CUM. BULL.  126(1933).  ITS ORIGINAL VIEW WAS
AGAIN TAKEN IN G.C.M. 14893, XIV - 1 CUM. BULL.  202(1935). 

FN13  SEE NOTE 5, SUPRA.  AND SEE SEC. 113(B), SUPRA NOTE 5, AS
RESPECTS THE BASIS IN CASE OF PROPERTY ACQUIRED BEFORE MARCH 1, 1913. 

FN14  S. REP. NO. 960, SUPRA NOTE 10. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS ARE OF OPINION THAT THE
JUDGMENT SHOULD BE REVERSED FOR THE REASONS STATED IN THE OPINION OF
THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT IN COMMISSIONER V.
GAMBRILL, 112 F.2D 530. 
..END :





HELVERING V. GAMBRILL, 313 U.S. 11 


NO. 472.  ARGUED MARCH 6, 1941.  - DECIDED MARCH 31, 1941.  - 112 F.2D
530, REVERSED. 


1.  UNDER SEC. 113(A)(5) OF THE REVENUE ACT OF 1928, THE BASIS FOR
ASCERTAINING GAIN OR LOSS FROM THE SALE OF PROPERTY DELIVERED TO THE
TAXPAYER BY TESTAMENTARY TRUSTEES IS ITS VALUE WHEN DISTRIBUTED BY THE
EXECUTORS TO THE TRUSTEES IF THE PROPERTY WAS OWNED BY THE DECEDENT AT
DEATH, AND COST TO THE TRUSTEES IF IT WAS PURCHASED BY THEM.  MAGUIRE
V. COMMISSIONER, ANTE, P. 1.  P. 13. 

2.  FOR THE PURPOSE OF DETERMINING WHETHER PROPERTY DELIVERED TO A
TAXPAYER BY TESTAMENTARY TRUSTEES WAS "CAPITAL ASSETS" WITHIN THE
CAPITAL GAINS AND LOSSES PROVISIONS OF THE REVENUE ACT OF 1928, THE
PERIOD FOR WHICH THE TAXPAYER HAS HELD THE PROPERTY (ALTHOUGH A
REMAINDER INTEREST) DATES FROM THE DEATH OF THE DECEDENT IN THE CASE OF
PROPERTY OWNED BY THE DECEDENT AT DEATH, AND FROM THE DATE OF PURCHASE
IN THE CASE OF PROPERTY PURCHASED BY THE TRUSTEES.  P. 14. 

3.  "PROPERTY HELD BY THE TAXPAYER," AS USED IN SEC. 101(C)(8) OF THE
REVENUE ACT OF 1928, EMBRACES NOT ONLY FULL OWNERSHIP BUT ALSO ANY
INTEREST WHETHER VESTED, CONTINGENT, OR CONDITIONAL.  P. 15. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. GAMBRILL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 639, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 38 B.T.A. 981, REDETERMINING A DEFICIENCY IN
INCOME TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS INVOLVED HERE ARE IN PART THE SAME AS THOSE IN MAGUIRE
V. COMMISSIONER, ANTE, P. 1.  RESPONDENT WAS A REMAINDERMAN UNDER A
TRUST CREATED BY THE WILL OF HIS GRANDMOTHER  FN1 WHO DIED IN 1897. 
THE TRUST RES, CONSISTING OF PERSONALTY, WAS DELIVERED BY THE EXECUTORS
TO THEMSELVES AS TRUSTEES IN 1898.  THE LIFE BENEFICIARY, RESPONDENT'S
MOTHER, DIED IN MARCH, 1928.  ON MAY 5, 1928, THE TRUSTEES DELIVERED
THE CORPUS TO RESPONDENT AS REMAINDERMAN.  SOME OF THE PROPERTY WAS
PART OF THE ORIGINAL TRUST RES, AND SOME WAS PURCHASED BY THE TRUSTEES
BOTH PRIOR TO AND SUBSEQUENT TO MARCH 1, 1913.  DURING THE YEAR 1930(IN
FEBRUARY, ON MAY 6, AND IN JUNE) RESPONDENT SOLD SOME OF THE PROPERTY
IN EACH GROUP.  THE BOARD OF TAX APPEALS (38 B.T.A. 981) AND THE
CIRCUIT COURT OF APPEALS (112 F.2D 530) HELD:  (1) THAT FOR THE PURPOSE
OF DETERMINING GAIN OR LOSS ON THE SALE OF THE PROPERTY IN QUESTION THE
BASIS TO RESPONDENT BY VIRTUE OF SEC. 113(A)(5) OF THE REVENUE ACT OF
1928(45 STAT. 791) WAS THE FAIR MARKET VALUE OF THE PROPERTY ON THE
DATE WHEN THE CORPUS WAS DELIVERED TO RESPONDENT; AND (2) THAT THE
PROPERTY SOLD IN FEBRUARY, 1930 HAD NOT BEEN HELD BY THE TAXPAYER FOR
MORE THAN TWO YEARS AND WAS, THEREFORE, NOT A CAPITAL ASSET WITHIN THE
MEANING OF SEC. 101(C) OF THE 1928 ACT, WHILE THAT SOLD ON MAY 6 AND IN
JUNE, 1930, HAD BEEN HELD BY RESPONDENT FOR MORE THAN TWO YEARS AND WAS
THEREFORE A CAPITAL ASSET. 

THE RULINGS ON THE FIRST QUESTION WERE ERRONEOUS.  FOR THE REASONS
STATED IN MAGUIRE V. COMMISSIONER, SUPRA, THE BASIS UNDER SEC.
113(A)(5) FOR THE PROPERTY DELIVERED TO RESPONDENT BY THE TESTAMENTARY
TRUSTEES WAS ITS VALUE WHEN DISTRIBUTED BY THE EXECUTORS TO THE
TRUSTEES IF THE PROPERTY WAS OWNED BY THE DECEDENT AT HER DEATH, AND
COST TO THE TRUSTEES IF IT WAS PURCHASED BY THEM.  FN2 

WE ALSO DISAGREE WITH THE DISPOSITION MADE OF THE SECOND QUESTION. 
CAPITAL GAINS OR LOSSES ARE DEFINED AS THOSE RESULTING FROM SALES OR
EXCHANGES OF CAPITAL ASSETS.  SEC. 101(C)(1) AND (2).  CAPITAL ASSETS
ARE DEFINED (WITH EXCEPTIONS NOT MATERIAL HERE) AS "PROPERTY HELD BY
THE TAXPAYER FOR MORE THAN TWO YEARS."  SEC. 101(C)(8).  AND SEC.
101(C)(8)(B) PROVIDES:  "IN DETERMINING THE PERIOD FOR WHICH THE
TAXPAYER HAS HELD PROPERTY HOWEVER ACQUIRED THERE SHALL BE INCLUDED THE
PERIOD FOR WHICH SUCH PROPERTY WAS HELD BY ANY OTHER PERSON, IF UNDER
THE PROVISIONS OF SECTION 113, SUCH PROPERTY HAS, FOR THE PURPOSE OF
DETERMINING GAIN OR LOSS FROM A SALE OR EXCHANGE, THE SAME BASIS IN
WHOLE OR IN PART IN HIS HANDS AS IT WOULD HAVE IN THE HANDS OF SUCH
OTHER PERSON." 

WE ARE OF THE VIEW THAT UNDER THESE PROVISIONS RESPONDENT'S HOLDING
PERIOD DATES FROM THE DECEDENT'S DEATH FOR PROPERTY WHICH SHE THEN
OWNED AND FROM THE DATE OF PURCHASE FOR PROPERTY PURCHASED BY THE
TRUSTEES.  IN MCFEELY V. COMMISSIONER, 296 U.S. 102, THIS COURT HELD
THAT A LEGATEE'S HOLDING PERIOD UNDER SEC. 101(C)(8) OF THE 1928 ACT
DATED FROM THE DECEDENT'S DEATH FOR PROPERTY OWNED BY THE DECEDENT AND
DISTRIBUTED TO THE LEGATEE BY THE EXECUTORS, IN SPITE OF THE FACT THAT
THE LEGATEE'S BASIS UNDER SEC. 113(A)(5) WAS VALUE AT THE TIME OF
DISTRIBUTION TO HIM BY THE EXECUTORS.  THE DATE OF ACQUISITION WAS HELD
TO BE THE DATE OF DEATH, REGARDLESS OF THE GAP BETWEEN THAT DATE AND
THE DATE OF DISTRIBUTION.  AND THAT RESULT WAS REACHED EVEN THOUGH SOME
OF THE TAXPAYERS INVOLVED WERE RESIDUARY LEGATEES WHOSE INTERESTS AT
DATE OF DEATH WERE NOT UNCONDITIONAL.  THE REASONING OF THAT CASE PLUS
SEC. 101(C)(8)(B) MAKE IT PLAIN THAT RESPONDENT'S INTEREST, ALBEIT A
REMAINDER, WAS ACQUIRED AT THE DATE OF DECEDENT'S DEATH FOR PROPERTY
THEN OWNED AND AT THE DATE OF PURCHASE FOR PROPERTY PURCHASED BY THE
TRUSTEES.  THE CONTINUITY IN HIS HOLDING WAS NOT BROKEN BY THE
INTERVENING TRUST.  THE FORMAL CONSTITUTION OF THAT TRUST THOUGH OF
SPECIAL SIGNIFICANCE UNDER SEC. 113(A)(5)(MAGUIRE V. COMMISSIONER,
SUPRA) DID NOT CHANGE THE BASIC QUALITY OF HIS PROPERTY INTEREST.  AND
THE FACT THAT THAT INTEREST DID NOT RIPEN INTO FULL AND COMPLETE
OWNERSHIP EXCEPT BY THE PASSAGE OF TIME OR THE OCCURRENCE OF SUBSEQUENT
EVENTS IS INCONSEQUENTIAL.  FOR SEC. 101(C)(8)(B) PROVIDES, AS WE HAVE
SEEN, THAT IN DETERMINING THE TAXPAYER'S HOLDING PERIOD THERE SHALL BE
INCLUDED THE PERIOD FOR WHICH THE PROPERTY WAS HELD BY ANY OTHER PERSON
IF UNDER SEC. 113 THE PROPERTY HAD THE SAME BASIS IN WHOLE OR IN PART
IN THE TAXPAYER'S HANDS AS IT WOULD HAVE IN THE HANDS OF THE OTHER
PERSON.  IT IS PLAIN THAT UNDER SEC. 113 THE BASIS TO THE TRUSTEES WAS
THE SAME AS THE BASIS TO THE TAXPAYER.  HENCE THE PERIOD OF THEIR
HOLDING IS NOT TO BE EXCLUDED FROM THE PERIOD OF THE TAXPAYER'S
HOLDING.  THAT MAKES PLAIN THAT "PROPERTY HELD BY THE TAXPAYER" AS USED
IN SEC. 101(C)(8) EMBRACES NOT ONLY FULL OWNERSHIP BUT ALSO ANY
INTEREST WHETHER VESTED, CONTINGENT, OR CONDITIONAL.  OTHERWISE THE
PERIOD OF THE HOLDING BY TRUSTEES WOULD NOT BE INCLUDED IN THE HOLDING
BY A MERE REMAINDERMAN.  HENCE, AS IN MCFEELY V. COMMISSIONER, SUPRA,
WE LOOK TO THE TIME WHEN THE TAXPAYER FIRST ACQUIRED THE INTEREST WHICH
LATER RIPENED INTO FULL OWNERSHIP.  IT IS PLAIN THAT FOR PROPERTY OWNED
BY THE DECEDENT HE ACQUIRED THAT INTEREST AT HER DEATH AND THAT FOR
PROPERTY PURCHASED BY THE TRUSTEES HE ACQUIRED THAT INTEREST AT THE
DATE OF PURCHASE.  REVERSED. 

FN1  RESPONDENT WAS THE SOLE SURVIVING ISSUE OF HIS MOTHER, ANNA VAN
NEST GAMBRILL, AND TOOK UNDER THE FOLLOWING PROVISIONS OF HIS
GRANDMOTHER'S WILL: 

"NINTH.  ALL THE RESIDUE OF MY ESTATE OF EVERY KIND I GIVE AND DEVISE
AS FOLLOWS: 

'ONE HALF THEREOF IN EQUAL SHARES TO MY DAUGHTERS MARY VAN NEST
JACKSON, ANNA VAN NEST GAMBRILL, AND JENNIE VAN NEST FOSTER, AND MY
GRANDDAUGHTER, MARY ALICE VAN NEST ABSOLUTELY. 

'THE OTHER HALF THEREOF IN FOUR EQUAL SHARES TO MY EXECUTORS, TO HOLD
THE SAME IN TRUST, ONE SHARE FOR THE BENEFIT OF EACH OF THE SAME FOUR
PERSONS TO WIT MY SAID THREE DAUGHTERS AND MY SAID GRANDDAUGHTER AND TO
RECEIVE THE INCOME AND PAY THE SAME TO HER DURING HER LIFE WITH FULL
POWER TO INVEST AND REINVEST IN THEIR DISCRETION WITHOUT ANY LIMITATION
WHATSOEVER AND AT HER DEATH TO TRANSFER AND DELIVER THE SAME AS SHE IF
LEAVING ISSUE SHALL BY WILL DIRECT OR IN THE ABSENCE OF SUCH DIRECTION,
TO HER ISSUE EQUALLY, OR IF SHE SHALL LEAVE NO ISSUE, THEN TO THE
SURVIVORS OF THE SAID FOUR PERSONS TO WIT MY SAID THREE DAUGHTERS AND
MY SAID GRANDDAUGHTER, AND TO THE ISSUE OF ANY OF THE SAID FOUR PERSONS
WHO MAY HAVE DIED, THE ISSUE TO TAKE THE SHARE WHICH THE PARENT WOULD
HAVE TAKEN IF LIVING.'" 

FN2  IT SHOULD, OF COURSE, BE NOTED THAT SEC. 113(B) PROVIDED: 

"(B)  PROPERTY ACQUIRED BEFORE MARCH 1, 1913.  - THE BASIS FOR
DETERMINING THE GAIN OR LOSS FROM THE SALE OR OTHER DISPOSITION OF
PROPERTY ACQUIRED BEFORE MARCH 1, 1913, SHALL BE: 

(1)  THE COST OF SUCH PROPERTY (OR, IN THE CASE OF SUCH PROPERTY AS
IS DESCRIBED IN SUBSECTION (A)(1), (4), (5), OR (12) OF THIS SECTION,
THE BASIS AS THEREIN PROVIDED), OR 

(2)  THE FAIR MARKET VALUE OF SUCH PROPERTY AS OF MARCH 1, 1913,
WHICHEVER IS GREATER.  IN DETERMINING THE FAIR MARKET VALUE OF STOCK IN
A CORPORATION AS OF MARCH 1, 1913, DUE REGARD SHALL BE GIVEN TO THE
FAIR MARKET VALUE OF THE ASSETS OF THE CORPORATION AS OF THAT DATE." 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS THINK THE JUDGMENT SHOULD
BE AFFIRMED FOR THE REASONS STATED BY THE COURT BELOW, 112 F.2D 530. 
..END :



HELVERING V. CAMPBELL, 313 U.S. 15 


NO. 473.  ARGUED MARCH 6, 1941.  - DECIDED MARCH 31, 1941.  - 112 F.2D
530, REVERSED. 


1.  UNDER SEC. 113(A)(5) OF THE REVENUE ACTS OF 1928 AND 1932, THE
BASIS FOR ASCERTAINING GAIN OR LOSS FROM THE SALE OF PROPERTY WHICH HAD
BEEN DELIVERED TO THE TAXPAYER BY TESTAMENTARY TRUSTEES IS, IN RESPECT
TO SECURITIES OWNED BY THE DECEDENT AT DEATH AND SECURITIES PURCHASED
BY THE EXECUTORS, THEIR VALUE WHEN DELIVERED BY THE EXECUTORS TO THE
TRUSTEES; AND, IN RESPECT TO SECURITIES PURCHASED BY THE TRUSTEES,
THEIR COST TO THE TRUSTEES.  P. 19. 

2.  FOR THE PURPOSE OF DETERMINING WHETHER PROPERTY DELIVERED TO A
TAXPAYER BY TESTAMENTARY TRUSTEES WAS "CAPITAL ASSETS" WITHIN THE
CAPITAL GAINS AND LOSSES PROVISIONS OF THE REVENUE ACT OF 1928, THE
PERIOD FOR WHICH THE TAXPAYER HAS "HELD" PROPERTY WHICH HAD BEEN
PURCHASED BY THE TRUSTEES DATES FROM THE TIME OF SUCH PURCHASE.  P.
20. 

3.  AS BETWEEN STOCK WHICH WAS DELIVERED TO THE TAXPAYER BY
TESTAMENTARY TRUSTEES, AND STOCK WHICH WAS PURCHASED BY THE TAXPAYER
PRIOR TO SUCH DELIVERY BUT SUBSEQUENTLY TO THE CREATION OF THE TRUST,
THE FORMER IS REGARDED AS HAVING BEEN ACQUIRED EARLIER, UNDER THE
"FIRST IN, FIRST OUT" RULE OF TREASURY REGULATIONS.  P. 20. 

4.  THE ASCERTAINMENT OF GAIN OR LOSS FROM THE SALE OF PROPERTY
ACQUIRED BY BEQUEST, DEVISE, OR INHERITANCE, MAY PROPERLY BE BASED UPON
VALUE AS OF THE TIME WHEN THE TAXPAYER FIRST ACQUIRED AN INTEREST IN
THE PROPERTY, THOUGH CONTINGENT OR CONDITIONAL.  REVENUE ACTS OF 1928
AND 1932.  P. 21. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. CAMPBELL.* 

*TOGETHER WITH NO. 474, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. KNOX, AND NO. 475, HELVERING, COMMISSIONER OF INTERNAL REVENUE, V.
ROGERS, ALSO ON WRITS OF CERTIORARI, 311 U.S. 639, TO THE CIRCUIT COURT
OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 639, TO REVIEW THE AFFIRMANCE OF DECISIONS OF
THE BOARD OF TAX APPEALS (NO. 473, 39 B.T.A. 916) IN FAVOR OF THE
TAXPAYERS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS PRESENTED BY THESE CASES ARE IN PART RELATED TO AND IN
PART THE SAME AS THOSE INVOLVED IN MAGUIRE V. COMMISSIONER, ANTE, P. 1,
AND HELVERING V. GAMBRILL, ANTE, P. 11. 

THE FATHER OF THESE RESPONDENTS DIED IN 1915.  BY HIS WILL IT WAS
PROVIDED THAT HIS RESIDUARY ESTATE SHOULD BE DIVIDED INTO FOUR PARTS. 
ONE PART WAS DEVISED AND BEQUEATHED TO TRUSTEES:  "TO RECEIVE, HOLD
AND, FROM TIME TO TIME, INVEST AND REINVEST THE SAME, AND TO COLLECT
THE RENTS, INCOME, ISSUES, AND PROFITS ON THE PROPERTY FROM TIME TO
TIME CONSTITUTING SUCH TRUST FUND AND TO PAY OVER SO MUCH OF THE NET
INCOME ARISING THEREFROM, AS TO MY SAID TRUSTEES SHALL SEEM WISE AND
PROPER TOWARD THE SUPPORT, MAINTENANCE, AND EDUCATION OF MY DAUGHTER,
MARJORIE KNOX, UNTIL SHE SHALL ARRIVE AT THE AGE OF TWENTY-ONE (21)
YEARS, AND TO ACCUMULATE THE BALANCE OF THE INCOME DURING HER MINORITY
FOR HER BENEFIT, AND TO PAY OVER THE ACCUMULATED INCOME TO HER WHEN SHE
SHALL ARRIVE AT THE AGE OF TWENTY-ONE (21) YEARS AND THEREAFTER TO PAY
OVER THE ENTIRE NET INCOME TO MY SAID DAUGHTER, MARJORIE KNOX, UNTIL
SHE SHALL ARRIVE AT THE AGE OF TWENTY-EIGHT (28) YEARS, AT WHICH TIME,
I GIVE, DEVISE, AND BEQUEATH TO MY SAID DAUGHTER, MARJORIE KNOX, ONE
HALF (1/2) OF THE PROPERTY THEN CONSTITUTING SAID TRUST FUND AND I
DIRECT MY SAID TRUSTEES TO PAY OVER THE NET INCOME ON THE REMAINING ONE
HALF (1/2) OF SAID TRUST FUND UNTIL SHE SHALL ARRIVE AT THE AGE OF
THIRTY-FIVE (35) YEARS, AT WHICH TIME I GIVE, DEVISE, AND BEQUEATH THE
REMAINING PART OF SAID TRUST FUND TO MY SAID DAUGHTER, MARJORIE KNOX,
AND TO HER HEIRS AND ASSIGNS FOREVER.  IN THE EVENT THAT MY SAID
DAUGHTER, MARJORIE KNOX, SHALL DIE BEFORE REACHING THE AGE OF THIRTY
FIVE (35) YEARS, I GIVE, DEVISE, AND BEQUEATH ANY PART OR PORTION OF
SAID TRUST FUND, WHICH HAS NOT THEN BEEN PAID OVER TO HER, OR TO THE
POSSESSION OF WHICH AT THE TIME OF HER DEATH SHE WAS NOT ENTITLED, UNTO
THE ISSUE OF SAID MARJORIE KNOX, IF ANY, SURVIVING HER, TO BE DIVIDED
AMONG THEM, SHARE AND SHARE ALIKE.  AND IN CASE THERE BE NO ISSUE HER
SURVIVING, THEN I GIVE, DEVISE, AND BEQUEATH SAID TRUST FUND UNTO HER
HEIRS." 

MARJORIE KNOX IS RESPONDENT MARJORIE K. CAMPBELL.  ANOTHER PART OF
THE RESIDUARY ESTATE WAS PLACED IN TRUST FOR RESPONDENT DOROTHY K. G.
ROGERS, UNDER THE SAME TERMS.  AND A THIRD PART TOGETHER WITH CERTAIN
SECURITIES WAS PLACED IN TRUST FOR RESPONDENT SEYMOUR H. KNOX, UNDER
SIMILAR TERMS.  HE, HOWEVER, WAS TO RECEIVE $500,000 OF THE TRUST FUND
WHEN HE REACHED THE AGE OF TWENTY-FIVE, ONE-HALF OF THE REMAINING TRUST
FUND WHEN HE BECAME THIRTY, AND THE BALANCE AT THIRTY-FIVE.  MEANWHILE,
THE INCOME WAS PAYABLE TO HIM.  ON JULY 1, 1921, THE EXECUTORS,
PURSUANT TO AN ORDER OF THE PROBATE COURT, TRANSFERRED THE PROPERTY TO
THE TRUSTEES. 

MARJORIE K. CAMPBELL ATTAINED THE AGE OF TWENTY-EIGHT ON JULY 10,
1928, AND RECEIVED AT THAT TIME ONE-HALF OF THE PROPERTY OF HER TRUST. 
CERTAIN OF THE SECURITIES WHICH SHE THEN RECEIVED WERE SOLD BY HER
DURING 1933 AND CERTAIN OF THE BONDS MATURED AND WERE PAID DURING
1933.  SOME OF THOSE SECURITIES HAD BEEN HELD BY HER FATHER AT HIS
DEATH, OTHERS HAD BEEN PURCHASED BY THE EXECUTORS, AND SOME HAD BEEN
PURCHASED BY THE TRUSTEES.  IN 1926 AND 1927 SHE PURCHASED STOCK OF THE
F.W. WOOLWORTH CO., WHICH WITH DIVIDENDS RECEIVED IN 1927 AMOUNTED TO
1000 SHARES.  IN 1928 SHE RECEIVED DELIVERY FROM THE TRUSTEES OF 15,000
SHARES OF WOOLWORTH STOCK WHICH REPRESENTED SHARES OWNED BY HER FATHER
AT HIS DEATH, A SUBSEQUENT TAX-FREE STOCK SPLIT-UP, STOCK DIVIDENDS,
AND PURCHASES BY THE TRUSTEES.  IN 1929 SHE SURRENDERED THE 16,000
SHARES SHE OWNED AND RECEIVED TAX FREE 40,000 SHARES PURSUANT TO A
SPLIT-UP OF THE STOCK.  IN 1933 SHE SOLD 10,000 OF THE SHARES RECEIVED
IN 1929.  THERE IS NO WAY OF IDENTIFYING THE SHARES SOLD WITH ANY
PARTICULAR SHARES SURRENDERED IN 1929. 

DOROTHY K. G. ROGERS BECAME TWENTY-EIGHT ON AUGUST 26, 1924, AND
THIRTY-FIVE ON AUGUST 26, 1931, AT WHICH TIMES SHE RECEIVED
DISTRIBUTIONS OF THE CORPUS.  DURING 1933 SHE SOLD SECURITIES SO
RECEIVED.  SOME OF THOSE SECURITIES HAD BEEN PURCHASED BY THE TRUSTEES,
SOME BY THE EXECUTORS, AND OTHERS HAD BEEN OWNED BY HER FATHER AT HIS
DEATH. 

SEYMOUR H. KNOX ATTAINED THE AGE OF THIRTY ON SEPTEMBER 1, 1928, AND
RECEIVED ON THAT DATE ONE-HALF OF THE CORPUS, INCLUDING 8,575 SHARES OF
STOCK OF MAINE SHARE CORP., OF WHICH 5,160 WERE PURCHASED BY THE
TRUSTEES ON AUGUST 31, 1927, AND 3,415 WERE PURCHASED BY THE TRUSTEES
ON AUGUST 30, 1928.  HE LATER EXCHANGED THOSE SHARES IN A NON-TAXABLE
TRANSACTION AND ON JUNE 10, 1930, SOLD THE SHARES RECEIVED IN THAT
EXCHANGE. 

THE BOARD OF TAX APPEALS  FN1  AND THE CIRCUIT COURT OF APPEALS (112
F.2D 530) HELD:  (1) THAT THE BASIS TO RESPONDENTS UNDER SEC. 113(A)(5)
OF THE REVENUE ACTS OF 1928 AND 1932  FN2  AS RESPECTS SALES MADE BY
THEM WAS THE FAIR MARKET VALUE AT THE TIME WHEN THE SECURITIES WERE
DELIVERED TO THEM BY THE TRUSTEES, NO MATTER WHEN OR HOW THE TRUSTEES
OR THE EXECUTORS MAY HAVE OBTAINED THE SECURITIES; (2) THAT IN
DETERMINING HOW LONG RESPONDENT KNOX HELD SECURITIES FOR PURPOSES OF
COMPUTING THE TERM OF HIS HOLDING UNDER SEC. 101 OF THE REVENUE ACT OF
1928, THE DATE OF TRANSFER FROM THE TRUSTEES SHOULD GOVERN; AND (3)
THAT AS RESPECTS THE SALE OF WOOLWORTH STOCK BY RESPONDENT CAMPBELL,
HER OWN SHARES SHOULD BE TREATED, UNDER THE "FIRST-IN-FIRST-OUT" RULE,
AS SOLD PRIOR TO THOSE WHICH WERE DELIVERED TO HER BY THE TRUSTEES. 

IT FOLLOWS FROM OUR HOLDING IN MAGUIRE V. COMMISSIONER, SUPRA, THAT
THE RULINGS ON THE FIRST ISSUE WERE ERRONEOUS.  AS RESPECTS THE
SECURITIES OWNED BY THE DECEDENT AT DEATH, THE BASIS IS THEIR VALUE
WHEN DELIVERED BY THE EXECUTORS TO THE TRUSTEES.  AS RESPECTS THE
SECURITIES PURCHASED BY THE TRUSTEES, THE BASIS IS COST TO THE
TRUSTEES.  AND WE ARE OF THE VIEW THAT AS RESPECTS SECURITIES PURCHASED
BY THE EXECUTORS THE BASIS IS THE VALUE WHEN DELIVERED BY THEM TO THE
TRUSTEES.  AS WE SAID IN MAGUIRE V. COMMISSIONER, SUPRA, THE
LEGISLATIVE HISTORY OF SEC. 113(A)(5) CLEARLY INDICATES THAT IT APPLIES
TO PURCHASES BY EXECUTORS.  HENCE IT FOLLOWS FROM OUR REASONING IN
MAGUIRE V. COMMISSIONER, SUPRA, THAT THE DATE OF DELIVERY BY THE
TRUSTEES TO THE BENEFICIARIES IS NO MORE APPROPRIATE HERE THAN IT IS IN
CASE OF PROPERTY OWNED BY THE DECEDENT AT DATE OF DEATH. 

WE ALSO DISAGREE WITH THE COURT BELOW ON THE SECOND ISSUE.  SOME OF
THE SECURITIES WERE SOLD BY RESPONDENT KNOX MORE THAN TWO YEARS AFTER
THEY HAD BEEN PURCHASED BY THE TRUSTEES.  FN3  FOR THE REASONS STATED
IN HELVERING V. GAMBRILL, SUPRA, IT FOLLOWS, THEREFORE, THAT THEY HAD
BEEN "HELD" BY HIM FOR MORE THAN TWO YEARS WITHIN THE MEANING OF SEC.
101(C)(8). 

WE ALSO TAKE A DIFFERENT VIEW ON THE THIRD PROPOSITION.  THE "FIRST
IN-FIRST-OUT" RULE IS REFLECTED IN TREASURY REGULATIONS.  THE GENERAL
RULE  FN4 IS THAT WHERE SHARES OF STOCK CANNOT BE IDENTIFIED WITH ANY
PARTICULAR LOTS PURCHASED, THEY WILL BE CHARGED AGAINST THE EARLIEST
PURCHASES.  FN5  FOR THE PURPOSE OF DETERMINING THE EARLIEST PURCHASES
THE REGULATION  FN6  ADOPTS THE RULE OF TACKING CONTAINED IN SEC.
101(C)(8)(B).  THAT BEING TRUE, IT MUST BE PRESUMED THAT THE WOOLWORTH
STOCK COMING FROM THE DECEDENT'S ESTATE WAS FIRST SOLD.  THE HOLDING BY
THE TRUSTEES IS INCLUDED IN THAT OF THE BENEFICIARY.  HENCE, AS WE
INDICATED IN HELVERING V. GAMBRILL, SUPRA, THE DATE OF ACQUISITION BY
THE BENEFICIARY WAS THE DATE OF DEATH.  IT IS THAT DATE OF ACQUISITION
WHICH GOVERNS THE APPLICATION OF THE "FIRST-IN-FIRST-OUT" RULE. 
THEREFORE, THE COURT BELOW WAS IN ERROR IN RULING THAT RESPONDENT
CAMPBELL'S OWN SHARES WERE SOLD FIRST. 

RESPONDENTS HAVE CONTENDED, AT LEAST IN REGARD TO SOME OF THESE
ISSUES, THAT THE NATURE OF THEIR REMAINDER INTERESTS NECESSITATES A
DIFFERENT RESULT.  THUS, IN CASE OF RESPONDENT KNOX IT IS STRONGLY
URGED THAT IN VIEW OF THE CONDITIONAL NATURE OF HIS REMAINDER INTEREST
HE HELD THE SECURITIES ONLY FROM THE DATE WHEN HIS INTEREST BECAME
INDEFEASIBLE AND THE SECURITIES WERE DISTRIBUTED TO HIM, SINCE ONE
CANNOT BE DEEMED TO HAVE HELD OR ACQUIRED PROPERTY WHICH HE MIGHT NEVER
OBTAIN.  BUT UNLIKE THE SITUATION IN HELVERING V. HALLOCK, 309 U.S.
106, WE ARE NOT CONCERNED HERE WITH THE QUESTION AS TO WHEN THE
TRANSFERS TOOK EFFECT FOR PURPOSES OF THE ESTATE TAX.  AS WE INDICATED
IN MAGUIRE V. COMMISSIONER, SUPRA, WE ARE DEALING ONLY WITH A POINT OF
REFERENCE AND A STANDARD OF VALUE FOR DETERMINATION OF GAINS OR LOSSES
REALIZED ON SUBSEQUENT SALES OF PROPERTY ACQUIRED BY BEQUEST, DEVISE,
OR INHERITANCE.  FOR THAT PURPOSE DISTINCTIONS BETWEEN VESTED AND
CONTINGENT REMAINDERS OR BETWEEN ABSOLUTE AND CONDITIONAL PROPERTY
INTERESTS HAVE NO RELEVANCY.  EACH REMAINDERMAN HAS BECOME THE TAXPAYER
BECAUSE HE HAS OBTAINED POSSESSION AND CONTROL OF THE PROPERTY AND HAS
SOLD IT.  WHILE THE PROPERTY IS HELD IN TRUST, THE VESTED REMAINDERMAN
HAS NO MORE RIGHTS OF POSSESSION AND CONTROL THAN THE CONTINGENT
REMAINDERMAN.  YET EACH HAS ACQUIRED A PROPERTY INTEREST.  THE
STATUTORY PROVISIONS HERE IN QUESTION COME INTO PLAY WHEN THAT INTEREST
LATER RIPENS INTO FULL OWNERSHIP AND A SALE IS MADE.  HENCE THE VALUE
OF THE PROPERTY AT THE TIME WHEN THE TAXPAYER FIRST ACQUIRES AN
INTEREST IN IT HAS RELEVANCE TO A SUBSEQUENT DETERMINATION OF THE GAINS
OR LOSSES.  AS WE REMARKED IN MAGUIRE V. COMMISSIONER, SUPRA, THE
RESIDUARY LEGATEE IN BREWSTER V. GAGE, 280 U.S. 327, WAS HELD TO HAVE
ACQUIRED HIS INTEREST AT DATE OF DEATH THOUGH AT THAT TIME IT WAS NOT
ABSOLUTE.  TO BE SURE, IN THESE CASES THE INTEREST OF THE REMAINDERMEN
IN THE PROPERTY AT THE EARLIER TIME WAS LIMITED BY THE VERY TERMS OF
THE BEQUEST.  BUT THE TAX HERE IN QUESTION IS NOT ON THEIR REMAINDER
INTERESTS; IT IS ON GAINS REALIZED BY THEM AS OWNERS OF THAT PROPERTY. 
HENCE, TO CARRY INTO THAT COMPUTATION THE EARLIER VALUE OF THE PROPERTY
IS NOT TO TAX THEM ON VALUES WHICH THEY NEVER RECEIVED.  IT MERELY
PROVIDES A RULE OF THUMB IN ALLEVIATION OF A TAX WHICH WOULD BE
COMPUTED BY REFERENCE TO THE ENTIRE AMOUNT OF THE ORIGINAL INHERITANCE
WERE IT TO BE BASED ON COST TO THE TAXPAYER.  REVERSED. 

FN1  THE OPINION OF THE BOARD IN HELVERING V. CAMPBELL IS REPORTED IN
39 B.T.A. 916; ITS OPINIONS IN THE OTHER TWO CASES ARE UNREPORTED. 

FN2 SEC. 113(A)(5) OF THE 1932 ACT (47 STAT. 169, 199) WAS THE SAME
AS SEC. 113(A)(5) OF THE 1928 ACT (45 STAT. 791, 819). 

FN3  ON THIS PHASE OF THE CASES NO QUESTION IS PRESENTED AS TO
SECURITIES PURCHASED BY EXECUTORS. 

FN4  ART. 58, TREAS. REG. 77, PROMULGATED UNDER THE 1932 ACT
PROVIDES: 

"SALE OF STOCK AND RIGHTS.  - WHEN SHARES OF STOCK IN A CORPORATION
ARE SOLD FROM LOTS PURCHASED AT DIFFERENT DATES OR AT DIFFERENT PRICES
AND THE IDENTITY OF THE LOTS CANNOT BE DETERMINED, THE STOCK SOLD SHALL
BE CHARGED AGAINST THE EARLIEST PURCHASES OF SUCH STOCK.  IN THE
DETERMINATION OF THE EARLIEST PURCHASES OF STOCK THE RULES PRESCRIBED
IN SUBPARAGRAPHS (A), (B), (C), AND (D) OF SECTION 101(C)(8)(RELATING
TO THE PERIOD FOR WHICH PROPERTY HAS BEEN HELD) SHALL BE APPLIED. 
..." 

AND SEE ART. 600(4) DEALING WITH STOCK OR SECURITIES DISTRIBUTED IN
REORGANIZATION. 

FN5  THE REGULATIONS REFER ONLY TO "PURCHASES."  BUT NO QUESTION HAS
BEEN RAISED AS TO THEIR APPLICATION TO SHARES ACQUIRED UNDER A WILL. 
IN FACT, THE BOARD OF TAX APPEALS STATED (39 B.T.A. 916, 919) THAT THE
"PARTIES ARE IN AGREEMENT THAT THE FIRST IN, FIRST OUT RULE MUST BE
APPLIED, SINCE THE SHARES WHICH THE PETITIONER SOLD CAN NOT BE
IDENTIFIED AS THOSE PURCHASED AT ANY PARTICULAR TIME."  FURTHERMORE,
RESPONDENT CONCEDES HERE THAT THE RULE SHOULD NOT BE LIMITED TO
SECURITIES WHICH HAVE BEEN BOUGHT AS DISTINGUISHED FROM THOSE WHICH
HAVE BEEN OTHERWISE OBTAINED. 

FN6  ART. 58, SUPRA NOTE 4. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS THINK THE JUDGMENTS SHOULD
BE AFFIRMED FOR THE REASONS STATED BY THE COURT BELOW, 112 F.2D 530. 
..END :























LABOR BOARD V. WHITE SWAN CO., 313 U.S. 23 


NO. 529.  ARGUED MARCH 10, 1941.  - DECIDED MARCH 31, 1941.  -
CERTIFICATE DISMISSED. 


1.  QUESTIONS CERTIFIED BY THE CIRCUIT COURT OF APPEALS IN THIS CASE,
INVOLVING THE VALIDITY OF AN ORDER OF THE NATIONAL LABOR RELATIONS
BOARD WHICH REQUIRED A COMPANY, ENGAGED IN THE OPERATION OF A LAUNDRY
AND DRY CLEANING BUSINESS LOCATED IN A CITY ON A STATE LINE, TO CEASE
AND DESIST FROM CERTAIN UNFAIR LABOR PRACTICES AND TO OFFER EMPLOYMENT
WITH BACK PAY TO CERTAIN EMPLOYEES FOUND TO HAVE BEEN DISCHARGED
BECAUSE OF UNION AFFILIATION AND ACTIVITIES, HELD DEFECTIVE BECAUSE OF
"OBJECTIONABLE GENERALITY," SINCE THE QUESTIONS DO NOT REFLECT THE
PRECISE CONCLUSIONS OF THE BOARD AND THE PRECISE FINDINGS ON WHICH
THOSE CONCLUSIONS WERE BASED; AND ALSO BECAUSE, EVEN IF THEY DID
REFLECT THOSE CONCLUSIONS AND FINDINGS, THEY WOULD CALL FOR A "DECISION
OF THE WHOLE CASE."  P. 27. 

2.  THE NECESSITY IN THIS CASE OF MAKING A SUPPOSITION AS TO THE
SENSE IN WHICH THE BOARD MADE ITS FINDING UNDER SEC. 10(A) THAT THE
UNFAIR LABOR PRACTICES WERE "AFFECTING COMMERCE," REVEALS THE
HYPOTHETICAL AND ABSTRACT QUALITY OF THE QUESTIONS CERTIFIED.  P. 27. 

NATIONAL LABOR RELATIONS BOARD V. WHITE SWAN CO. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS UPON A PETITION TO THAT
COURT FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS
BOARD.  19 N.L.R.B. 1079. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

A CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT SUBMITTED PURSUANT TO SEC. 239 OF THE JUDICIAL CODE (28 U.S.C.
SEC. 346) IS AS FOLLOWS: 

THIS IS A PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD, WHICH DIRECTED THE WHITE SWAN COMPANY, A CORPORATION
OF WHEELING, WEST VIRGINIA, ENGAGED IN THE OPERATION OF A LAUNDRY AND
DRY CLEANING BUSINESS, TO CEASE AND DESIST FROM CERTAIN UNFAIR LABOR
PRACTICES AND TO OFFER EMPLOYMENT WITH BACK PAY TO CERTAIN EMPLOYEES
HELD TO HAVE BEEN DISCHARGED BECAUSE OF UNION AFFILIATION AND
ACTIVITIES.  THE FINDINGS OF THE BOARD WITH RESPECT TO THE UNFAIR LABOR
PRACTICES AND DISCRIMINATORY DISCHARGE OF EMPLOYEES ARE SUSTAINED BY
SUBSTANTIAL EVIDENCE; BUT A QUESTION HAS ARISEN, AS TO WHICH THE
MEMBERS OF THE COURT ARE DIVIDED AND IN DOUBT, WITH RESPECT TO THE
JURISDICTION OF THE BOARD IN THE PREMISES. 

THE RESPONDENT, WHITE SWAN COMPANY, OPERATES A COMBINED LAUNDRY AND
DRY CLEANING ESTABLISHMENT IN THE CITY OF WHEELING, WEST VIRGINIA. 
WHILE CERTAIN OF ITS SUPPLIES ARE OBTAINED FROM WITHOUT THE STATE, THE
VOLUME OF THE INTERSTATE BUSINESS THUS INVOLVED IS NOT SUFFICIENT, IN
OUR OPINION, TO BRING THE BUSINESS WITHIN THE JURISDICTION OF THE
BOARD.  THE RECORD SHOWS THAT THESE SUPPLIES CONSIST OF SOAP, BLUING,
BLEACH, SOLVENT, COAL, WATER, PAPER, TAPE AND PADDING, AND THAT
RESPONDENT'S PURCHASES THEREOF DURING 1938 AMOUNTED TO $38,333.15, OF
WHICH $10,810.90 CAME FROM WITHOUT THE STATE.  RESPONDENT, HOWEVER,
OPERATES DELIVERY TRUCKS IN OHIO AS WELL AS IN WEST VIRGINIA, THREE OF
THE DELIVERY ROUTES FROM ITS PLANT BEING IN OHIO AND ELEVEN IN WEST
VIRGINIA.  THE BUSINESS INVOLVED IS NECESSARILY OF A PURELY LOCAL
CHARACTER, AS THE RECORD SHOWS THAT A RADIUS OF FIFTEEN MILES IS THE
PRACTICAL LIMIT FOR A LAUNDRY OR DRY-CLEANING BUSINESS IN THIS
TERRITORY.  THE FACT THAT BUSINESS IS DONE IN OHIO OUTSIDE THE STATE IN
WHICH RESPONDENT'S LAUNDRY IS LOCATED, RESULTS FROM THE FACT THAT THIS
PURELY LOCAL BUSINESS IS LOCATED IN A CITY ON A STATE LINE.  RESPONDENT
TRANSPORTS GARMENTS IN ITS TRUCKS FROM THOSE OF ITS CUSTOMERS WHO
RESIDE IN OHIO TO ITS PLANT IN WEST VIRGINIA TO BE SERVICED, AND THEN
AFTER SERVICING RETURNS THE GARMENTS IN ITS TRUCKS TO THE CUSTOMERS. 
APPROXIMATELY 12.93 PER CENT OF ITS GROSS INCOME FOR 1938 WAS DERIVED
FROM THIS SOURCE.  IN ADDITION THERETO, APPROXIMATELY 5 PER CENT OF ITS
GROSS INCOME DURING 1938 WAS DERIVED FROM THE SERVICING OF GARMENTS
WHICH PERSONS NOT IN ITS EMPLOYMENT COLLECTED IN OHIO, BROUGHT TO ITS
PLANT FOR SERVICING AND DELIVERED IN OHIO AFTER THEY HAD BEEN
SERVICED.  RESPONDENT'S TOTAL GROSS INCOME IN 1938 WAS $128,752.96. 
THE TOTAL INCOME FROM THE BUSINESS OBTAINED FROM PERSONS IN OHIO DURING
THIS PERIOD WAS $28,088.43. 

WE RECOGNIZE THAT THE COLLECTION AND DELIVERY OF GARMENTS ACROSS
STATE LINES, AS ABOVE DESCRIBED, CONSTITUTES INTERSTATE COMMERCE.  WE
ARE ADVERTENT, HOWEVER, TO THE ADMONITION OF THE COURT THAT IN APPLYING
THE ACT WE ARE TO BEAR IN MIND "THE DISTINCTION BETWEEN WHAT IS
NATIONAL AND WHAT IS LOCAL IN THE ACTIVITIES OF COMMERCE."  N.L.R.B. V.
JONES & LAUGHLIN (301 U.S. 1, 30).  AND ALTHOUGH THE LETTER OF THE
NATIONAL LABOR RELATIONS ACT MAY COVER SUCH COLLECTIONS AND DELIVERIES
IN INTERSTATE COMMERCE AS ARE HERE INVOLVED, THE QUESTION ARISES
WHETHER A PROPER INTERPRETATION OF THE ACT, IN VIEW OF THE INTENT OF
CONGRESS, WOULD INCLUDE THEM.  CF. UNITED STATES V. SORRELLS, 287 U.S.
435, 446.  WE ARE DIVIDED AND IN DOUBT AS TO WHETHER SUCH COLLECTION
AND DELIVERY, WHICH RESULTS FROM THE FACT THAT BUSINESS OF A LOCAL
CHARACTER, SUCH AS A LAUNDRY, IS LOCATED ON A STATE LINE, IS SUFFICIENT
TO BRING SUCH BUSINESS WITHIN THE JURISDICTION OF THE BOARD UNDER THE
NATIONAL LABOR RELATIONS ACT.  TO SO HOLD WOULD BE TO BRING UNDER THE
JURISDICTION OF THE BOARD A GREAT VARIETY OF BUSINESSES OF PURELY LOCAL
CHARACTER SIMPLY BECAUSE THEY MAINTAIN A DELIVERY SERVICE IN CITIES
LOCATED ON STATE LINES.  AS THERE ARE MANY SUCH CITIES IN THE UNITED
STATES, THE QUESTION SEEMS TO US ONE OF SUFFICIENT IMPORTANCE TO
JUSTIFY US IN CERTIFYING IT TO THE SUPREME COURT SO THAT IT MAY BE
DEFINITELY SETTLED. 

BEING DIVIDED AND IN DOUBT, THEREFORE, THIS COURT RESPECTFULLY
CERTIFIES TO THE SUPREME COURT OF THE UNITED STATES, FOR ITS
INSTRUCTION AND ADVICE, THE FOLLOWING QUESTIONS OF LAW, THE
DETERMINATION OF WHICH IS INDISPENSABLE TO A PROPER DECISION OF THE
CASE. 

1.  SHOULD THE NATIONAL LABOR RELATIONS ACT BE INTERPRETED AS HAVING
APPLICATION TO A BUSINESS OF PURELY LOCAL CHARACTER, SUCH AS A LAUNDRY,
MERELY BECAUSE SUCH BUSINESS IS LOCATED IN A CITY ON A STATE LINE AND
DERIVES A SUBSTANTIAL PORTION OF ITS INCOME FROM BUSINESS WHICH
INVOLVES COLLECTIONS OR DELIVERIES OF ARTICLES IN A STATE OTHER THAN
THAT IN WHICH THE BUSINESS IS LOCATED? 

2.  WHERE A LOCAL BUSINESS, SUCH AS A LAUNDRY, IS LOCATED IN A CITY
ON A STATE LINE, AND IS NOT ENGAGED IN INTERSTATE COMMERCE, EXCEPT IN
SO FAR AS IT MAY COLLECT ARTICLES TO BE SERVICED AND MAY MAKE
DELIVERIES TO CUSTOMERS LIVING ACROSS THE STATE LINE, IS SUCH BUSINESS,
BY REASON OF SUCH COLLECTIONS AND DELIVERIES, DEEMED ENGAGED IN
"COMMERCE" WITHIN THE MEANING OF SUBSECTION 6 OF SECTION 2 OF THE ACT
OF JULY 5, 1935, CH. 372, 29 U.S.C.A. 152(6), SO THAT AN UNFAIR LABOR
PRACTICE ON ITS PART WOULD BE AN UNFAIR LABOR PRACTICE "AFFECTING
COMMERCE" WITHIN THE MEANING OF SUBSECTION 7 OF SAID SECTION (29
U.S.C.A. 152(7)) AND SUBSECTION (A) OF SECTION 10, 29 U.S.C.A. 160(A)? 
FN1 

THE CERTIFICATE MUST BE DISMISSED. 

BY SEC. 10(A) OF THE NATIONAL LABOR RELATIONS ACT (49 STAT. 449, 453;
29 U.S.C. SEC. 160(A)) THE BOARD IS EMPOWERED "TO PREVENT ANY PERSON
FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED IN SECTION 8)
AFFECTING COMMERCE."  THE TERM "AFFECTING COMMERCE" IS DEFINED IN SEC.
2(7) AS "IN COMMERCE, OR BURDENING OR OBSTRUCTING COMMERCE OR THE FREE
FLOW OF COMMERCE, OR HAVING LED OR TENDING TO LEAD TO A LABOR DISPUTE
BURDENING OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE."  AND
"COMMERCE" BY SEC. 2(6) IS DEFINED SO AS TO INCLUDE "TRADE, TRAFFIC,
COMMERCE, TRANSPORTATION, OR COMMUNICATION AMONG THE SEVERAL STATES." 
ON A REVIEW OF AN ORDER OF THE BOARD IN A CIRCUIT COURT OF APPEALS THE
"FINDINGS OF THE BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL
BE CONCLUSIVE."  SEC. 10(E). 

THE QUESTIONS DO NOT FOCUS "THE CONTROVERSY IN ITS SETTING."  LOWDEN
V. NORTHWESTERN NATIONAL BANK & TRUST CO., 298 U.S. 160, 163.  FROM THE
CERTIFICATE WE DO NOT KNOW ON WHAT GROUNDS THE BOARD BASED ITS
JURISDICTION - THAT THE BUSINESS WAS "IN COMMERCE" OR THAT IT WAS
EMBRACED WITHIN THE OTHER CATEGORIES DESCRIBED IN SEC. 2(7) OF THE
ACT.  THE TERMS "BUSINESS OF PURELY LOCAL CHARACTER" AND "LOCAL
BUSINESS" ARE MEANINGFUL FOR PURPOSES OF SEC. 10(A) OF THE ACT ONLY IN
LIGHT OF SPECIFIC FINDINGS OF THE BOARD.  TO ANSWER THE QUESTIONS WE
WOULD HAVE TO MAKE A SUPPOSITION AS TO THE SENSE IN WHICH THE BOARD
MADE ITS FINDING UNDER SEC. 10(A) THAT THE UNFAIR LABOR PRACTICES WERE
"AFFECTING COMMERCE."  THE NECESSITY OF MAKING THAT SUPPOSITION REVEALS
THE HYPOTHETICAL AND ABSTRACT QUALITY OF THE QUESTIONS.  AND THE FACT
THAT ON THE WHOLE RECORD THE ANSWER MIGHT BE CLEAR WHICHEVER THE THEORY
OF THE BOARD'S FINDINGS DOES NOT MAKE THE QUESTIONS ANY THE LESS
DEFECTIVE.  THE REVIEWING COURT IS PASSING ON THE VALIDITY OF A
SPECIFIC ORDER OF THE BOARD.  SINCE THE QUESTIONS CERTIFIED DO NOT
REFLECT THE PRECISE CONCLUSIONS OF THE BOARD AND THE PRECISE FINDINGS
ON WHICH THOSE CONCLUSIONS WERE BASED, THEY NECESSARILY HAVE AN
"OBJECTIONABLE GENERALITY."  SEE UNITED STATES V. MAYER, 235 U.S. 55,
56; WHITE V. JOHNSON, 282 U.S. 367 371; TRIPLETT V. LOWELL, 297 U.S.
638, 648; ATLAS LIFE INS. CO. V. W.I. SOUTHERN, INC., 306 U.S. 563,
571; PFLUEGER V. SHERMAN, 293 U.S. 55, 57, 58.  AND IF, IN THIS CASE,
THEY DID REFLECT THOSE CONCLUSIONS AND FINDINGS, THEY WOULD BE
DEFECTIVE AS CALLING FOR A "DECISION OF THE WHOLE CASE."  NEWS
SYNDICATE CO. V. NEW YORK CENTRAL R. CO., 275 U.S. 179, 188. 
DISMISSED. 

FN1  THE COURT DENIED A MOTION MADE BY THE SOLICITOR GENERAL TO AMEND
THE CERTIFICATE BY EMBODYING THE PURCHASE OF SUPPLIES IN INTERSTATE
COMMERCE AS WELL AS THE COLLECTIONS AND DELIVERIES. 
..END :












HORT V. COMMISSIONER, 313 U.S. 28 


NO. 517.  ARGUED MARCH 7, 1941.  - DECIDED MARCH 31, 1941.  - 112 F.2D
167, AFFIRMED. 


1.  AN AMOUNT RECEIVED BY A LESSOR IN CONSIDERATION OF THE
CANCELLATION OF A LEASE OF REAL ESTATE IS INCOME TAXABLE TO HIM UNDER
SEC. 22(A) OF THE REVENUE ACT OF 1932 AND MUST BE REPORTED AS GROSS
INCOME IN ITS ENTIRETY.  P. 30. 

2.  ALTHOUGH THE AMOUNT SO RECEIVED BE LESS THAN THE DIFFERENCE
BETWEEN THE PRESENT VALUE OF THE UNMATURED RENTAL PAYMENTS AND THE FAIR
RENTAL VALUE OF THE PROPERTY FOR THE UNEXPIRED PERIOD OF THE LEASE,
THERE IS NO LOSS DEDUCTIBLE UNDER SEC. 23(E) OF THE ACT.  P. 32. 

3.  EVEN THOUGH THE LEASE BE REGARDED AS "PROPERTY," THE
CONSIDERATION RECEIVED FOR ITS CANCELLATION IS NOT, FOR THE PURPOSES OF
THE REVENUE ACT OF 1932, A RETURN OF CAPITAL.  P. 31. 

HORT V. COMMISSIONER OR INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 641, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 39 B.T.A. 922, SUSTAINING THE DETERMINATION
OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE MUST DETERMINE WHETHER THE AMOUNT PETITIONER RECEIVED AS
CONSIDERATION FOR CANCELLATION OF A LEASE OF REALTY IN NEW YORK CITY
WAS ORDINARY GROSS INCOME AS DEFINED IN SEC. 22(A) OF THE REVENUE ACT
OF 1932(47 STAT. 169, 178), AND WHETHER, IN ANY EVENT, PETITIONER
SUSTAINED A LOSS THROUGH CANCELLATION OF THE LEASE WHICH IS RECOGNIZED
IN SEC. 23(E) OF THE SAME ACT (47 STAT. 169, 180). 

PETITIONER ACQUIRED THE PROPERTY, A LOT AND TEN-STORY OFFICE
BUILDING, BY DEVISE FROM HIS FATHER IN 1928.  AT THE TIME HE BECAME
OWNER, THE PREMISES WERE LEASED TO A FIRM WHICH HAD SUBLET THE MAIN
FLOOR TO THE IRVING TRUST CO. IN 1927, FIVE YEARS BEFORE THE HEAD LEASE
EXPIRED, THE IRVING TRUST CO. AND PETITIONER'S FATHER EXECUTED A
CONTRACT IN WHICH THE LATTER AGREED TO LEASE THE MAIN FLOOR AND
BASEMENT TO THE FORMER FOR A TERM OF FIFTEEN YEARS AT AN ANNUAL RENTAL
OF $25,000, THE TERM TO COMMENCE AT THE EXPIRATION OF THE HEAD LEASE. 

IN 1933, THE IRVING TRUST CO. FOUND IT UNPROFITABLE TO MAINTAIN A
BRANCH IN PETITIONER'S BUILDING.  AFTER SOME NEGOTIATIONS, PETITIONER
AND THE TRUST CO. AGREED TO CANCEL THE LEASE IN CONSIDERATION OF A
PAYMENT TO PETITIONER OF $140,000.  PETITIONER DID NOT INCLUDE THIS
AMOUNT IN GROSS INCOME IN HIS INCOME TAX RETURN FOR 1933.  ON THE
CONTRARY, HE REPORTED A LOSS OF $21,494.75 ON THE THEORY THAT THE
AMOUNT HE RECEIVED AS CONSIDERATION FOR THE CANCELLATION WAS $21,494.75
LESS THAN THE DIFFERENCE BETWEEN THE PRESENT VALUE OF THE UNMATURED
RENTAL PAYMENTS AND THE FAIR RENTAL VALUE OF THE MAIN FLOOR AND
BASEMENT FOR THE UNEXPIRED TERM OF THE LEASE.  HE DID NOT DEDUCT THIS
FIGURE, HOWEVER, BECAUSE HE REPORTED OTHER LOSSES IN EXCESS OF GROSS
INCOME. 

THE COMMISSIONER INCLUDED THE ENTIRE $140,000 IN GROSS INCOME,
DISALLOWED THE ASSERTED LOSS, MADE CERTAIN OTHER ADJUSTMENTS NOT
MATERIAL HERE, AND ASSESSED A DEFICIENCY.  THE BOARD OF TAX APPEALS
AFFIRMED.  39 B.T.A. 922.  THE CIRCUIT COURT OF APPEALS AFFIRMED PER
CURIAM ON THE AUTHORITY OF WARREN SERVICE CORP. V. COMMISSIONER, 110
F.2D 723.  112 F.2D 167.  BECAUSE OF CONFLICT WITH COMMISSIONER V.
LANGWELL REAL ESTATE CORP., 47 F.2D 841, WE GRANTED CERTIORARI LIMITED
TO THE QUESTION WHETHER, "IN COMPUTING NET GAIN OR LOSS FOR INCOME TAX
PURPOSES, A TAXPAYER (CAN) OFFSET THE VALUE OF THE LEASE CANCELED
AGAINST THE CONSIDERATION RECEIVED BY HIM FOR THE CANCELLATION."  311
U.S. 641. 

PETITIONER APPARENTLY CONTENDS THAT THE AMOUNT RECEIVED FOR
CANCELLATION OF THE LEASE WAS CAPITAL RATHER THAN ORDINARY INCOME AND
THAT IT WAS THEREFORE SUBJECT TO SECS. 101, 111-113, AND 117(47 STAT.
169, 191, 195-202, 207) WHICH GOVERN CAPITAL GAINS AND LOSSES. 
FURTHER, HE ARGUES THAT EVEN IF THAT AMOUNT MUST BE REPORTED AS
ORDINARY GROSS INCOME HE SUSTAINED A LOSS WHICH SEC. 23(E) AUTHORIZES
HIM TO DEDUCT.  WE CANNOT AGREE. 

THE AMOUNT RECEIVED BY PETITIONER FOR CANCELLATION OF THE LEASE MUST
BE INCLUDED IN HIS GROSS INCOME IN ITS ENTIRETY.  SECTION 22(A), COPIED
IN THE MARGIN,  FN1  EXPRESSLY DEFINES GROSS INCOME TO INCLUDE "GAINS,
PROFITS, AND INCOME DERIVED FROM  ...  RENT,  ...  OR GAINS OR PROFITS
AND INCOME DERIVED FROM ANY SOURCE WHATEVER."  PLAINLY THIS DEFINITION
REACHED THE RENT PAID PRIOR TO CANCELLATION JUST AS IT WOULD HAVE
EMBRACED SUBSEQUENT PAYMENTS IF THE LEASE HAD NEVER BEEN CANCELED.  IT
WOULD HAVE INCLUDED A PREPAYMENT OF THE DISCOUNTED VALUE OF UNMATURED
RENTAL PAYMENTS WHETHER RECEIVED AT THE INCEPTION OF THE LEASE OR AT
ANY TIME THEREAFTER.  SIMILARLY, IT WOULD HAVE EXTENDED TO THE PROCEEDS
OF A SUIT TO RECOVER DAMAGES HAD THE IRVING TRUST CO. BREACHED THE
LEASE INSTEAD OF CONCLUDING A SETTLEMENT.  COMPARE UNITED STATES V.
SAFETY CAR HEATING CO., 297 U.S. 88; BURNET V. SANFORD, 282 U.S. 359. 
THAT THE AMOUNT PETITIONER RECEIVED RESULTED FROM NEGOTIATIONS ENDING
IN CANCELLATION OF THE LEASE RATHER THAN FROM A SUIT TO ENFORCE IT
CANNOT ALTER THE FACT THAT BASICALLY THE PAYMENT WAS MERELY A
SUBSTITUTE FOR THE RENT RESERVED IN THE LEASE.  SO FAR AS THE
APPLICATION OF SEC. 22(A) IS CONCERNED, IT IS IMMATERIAL THAT
PETITIONER CHOSE TO ACCEPT AN AMOUNT LESS THAN THE STRICT PRESENT VALUE
OF THE UNMATURED RENTAL PAYMENTS RATHER THAN TO ENGAGE IN LITIGATION,
POSSIBLY UNCERTAIN AND EXPENSIVE. 

THE CONSIDERATION RECEIVED FOR CANCELLATION OF THE LEASE WAS NOT A
RETURN OF CAPITAL.  WE ASSUME THAT THE LEASE WAS "PROPERTY," WHATEVER
THAT SIGNIFIES ABSTRACTLY.  PRESUMABLY THE BOND IN HELVERING V. HORST,
311 U.S. 112, AND THE LEASE IN HELVERING V. BRUUN, 309 U.S. 461, WERE
ALSO "PROPERTY," BUT THE INTEREST COUPON IN HORST AND THE BUILDING IN
BRUUN NEVERTHELESS WERE HELD TO CONSTITUTE ITEMS OF GROSS INCOME. 
SIMPLY BECAUSE THE LEASE WAS "PROPERTY" THE AMOUNT RECEIVED FOR ITS
CANCELLATION WAS NOT A RETURN OF CAPITAL, QUITE APART FROM THE FACT
THAT "PROPERTY" AND "CAPITAL" ARE NOT NECESSARILY SYNONYMOUS IN THE
REVENUE ACT OF 1932 OR IN COMMON USAGE.  WHERE, AS IN THIS CASE, THE
DISPUTED AMOUNT WAS ESSENTIALLY A SUBSTITUTE FOR RENTAL PAYMENTS WHICH
SEC. 22(A) EXPRESSLY CHARACTERIZES AS GROSS INCOME, IT MUST BE REGARDED
AS ORDINARY INCOME, AND IT IS IMMATERIAL THAT FOR SOME PURPOSES THE
CONTRACT CREATING THE RIGHT TO SUCH PAYMENTS MAY BE TREATED AS
"PROPERTY" OR "CAPITAL." 

FOR THE SAME REASONS, THAT AMOUNT WAS NOT A RETURN OF CAPITAL BECAUSE
PETITIONER ACQUIRED THE LEASE AS AN INCIDENT OF THE REALTY DEVISED TO
HIM BY HIS FATHER.  THEORETICALLY, IT MIGHT HAVE BEEN POSSIBLE IN SUCH
A CASE TO VALUE REALTY AND LEASE SEPARATELY AND TO LABEL EACH A CAPITAL
ASSET.  COMPARE MAASS V. HIGGINS, 312 U.S. 443; APPEAL OF FARMER, 1
B.T.A. 711.  BUT THAT WOULD NOT HAVE CONVERTED INTO CAPITAL THE AMOUNT
PETITIONER RECEIVED FROM THE TRUST CO., SINCE SEC. 22(B)(3)  FN2  OF
THE 1932 ACT (47 STAT. 169, 178) WOULD HAVE REQUIRED HIM TO INCLUDE IN
GROSS INCOME THE RENT DERIVED FROM THE PROPERTY, AND THAT SECTION, LIKE
SEC. 22(A), DOES NOT DISTINGUISH RENTAL PAYMENTS AND A PAYMENT WHICH IS
CLEARLY A SUBSTITUTE FOR RENTAL PAYMENTS. 

WE CONCLUDE THAT PETITIONER MUST REPORT AS GROSS INCOME THE ENTIRE
AMOUNT RECEIVED FOR CANCELLATION OF THE LEASE, WITHOUT REGARD TO THE
CLAIMED DISPARITY BETWEEN THAT AMOUNT AND THE DIFFERENCE BETWEEN THE
PRESENT VALUE OF THE UNMATURED RENTAL PAYMENTS AND THE FAIR RENTAL
VALUE OF THE PROPERTY FOR THE UNEXPIRED PERIOD OF THE LEASE.  THE
CANCELLATION OF THE LEASE INVOLVED NOTHING MORE THAN RELINQUISHMENT OF
THE RIGHT TO FUTURE RENTAL PAYMENTS IN RETURN FOR A PRESENT SUBSTITUTE
PAYMENT AND POSSESSION OF THE LEASED PREMISES.  UNDOUBTEDLY IT
DIMINISHED THE AMOUNT OF GROSS INCOME PETITIONER EXPECTED TO REALIZE,
BUT TO THAT EXTENT HE WAS RELIEVED OF THE DUTY TO PAY INCOME TAX. 
NOTHING IN SEC. 23(E)  FN3  INDICATES THAT CONGRESS INTENDED TO ALLOW
PETITIONER TO REDUCE ORDINARY INCOME ACTUALLY RECEIVED AND REPORTED BY
THE AMOUNT OF INCOME HE FAILED TO REALIZE.  SEE WARREN SERVICE CORP. V.
COMMISSIONER, SUPRA; JOSEY V. COMMISSIONER, 104 F.2D 453; TISCORNIA V.
COMMISSIONER, 95 F.2D 678; FARRELLY-WALSH, INC., V. COMMISSIONER, 13
B.T.A. 923; GOERKE CO. V. COMMISSIONER, 7 B.T.A. 860; MERCKENS V.
COMMISSIONER, 7 B.T.A. 32.  COMPARE, UNITED STATES V. SAFETY CAR
HEATING CO., SUPRA; VOLIVA V. COMMISSIONER, 36 F.2D 212; APPEAL OF
DENHOLM & MCKAY CO., 2 B.T.A. 444.  WE MAY ASSUME THAT PETITIONER WAS
INJURED INSOFAR AS THE CANCELLATION OF THE LEASE AFFECTED THE VALUE OF
THE REALTY.  BUT THAT WOULD BECOME A DEDUCTIBLE LOSS ONLY WHEN ITS
EXTENT HAD BEEN FIXED BY A CLOSED TRANSACTION.  REGULATIONS NO. 77,
ART. 171, P. 46; UNITED STATES V. WHITE DENTAL MFG. CO., 274 U.S. 398. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  SEC. 22(A).  "GROSS INCOME" INCLUDES GAINS, PROFITS, AND INCOME
DERIVED FROM SALARIES, WAGES, OR COMPENSATION FOR PERSONAL SERVICE, OF
WHATEVER KIND AND IN WHATEVER FORM PAID, OR FROM PROFESSIONS,
VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR DEALINGS IN
PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE OWNERSHIP OR USE
OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST, RENT, DIVIDENDS,
SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED ON FOR GAIN OR
PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY SOURCE
WHATEVER. 

FN2  SEC. 22(B).  THE FOLLOWING ITEMS SHALL NOT BE INCLUDED IN GROSS
INCOME AND SHALL BE EXEMPT FROM TAXATION UNDER THIS TITLE:  ... 

(3)  THE VALUE OF PROPERTY ACQUIRED BY GIFT, BEQUEST, DEVISE, OR
INHERITANCE (BUT THE INCOME FROM SUCH PROPERTY SHALL BE INCLUDED IN
GROSS INCOME). 

FN3 SEC. 23(E).  SUBJECT TO THE LIMITATIONS PROVIDED IN SUBSECTION
(R) OF THIS SECTION, IN THE CASE OF AN INDIVIDUAL, LOSSES SUSTAINED
DURING THE TAXABLE YEAR AND NOT COMPENSATED FOR BY INSURANCE OR
OTHERWISE (SHALL BE DEDUCTIBLE FROM GROSS INCOME) - 

(1)  IF INCURRED IN TRADE OR BUSINESS; OR 

(2)  IF INCURRED IN ANY TRANSACTION ENTERED INTO FOR PROFIT, THOUGH
NOT CONNECTED WITH THE TRADE OR BUSINESS; OR 

(3)  OF PROPERTY NOT CONNECTED WITH THE TRADE OR BUSINESS, IF THE
LOSS ARISES FROM FIRES, STORMS, SHIPWRECK, OR OTHER CASUALTY, OR FROM
THEFT.  NO LOSS SHALL BE ALLOWED AS A DEDUCTION UNDER THIS PARAGRAPH IF
AT THE TIME OF THE FILING OF THE RETURN SUCH LOSS HAS BEEN CLAIMED AS A
DEDUCTION FOR ESTATE TAX PURPOSES IN THE ESTATE TAX RETURN. 
..END :



















HORMEL V. HELVERING, 312 U.S. 552 


NO. 257.  ARGUED MARCH 3, 1941.  - DECIDED MARCH 17, 1941.  - 111 F.2D
1, AFFIRMED. 


1.  UPON REVIEW OF A DECISION OF THE BOARD OF TAX APPEALS THAT NEITHER
UNDER SEC. 166 NOR SEC. 167 OF THE REVENUE ACT OF 1934 WAS THE INCOME
OF THE TRUSTS HERE INVOLVED TAXABLE TO THE GRANTOR, THE CIRCUIT COURT
OF APPEALS - HELVERING V. CLIFFORD, 309 U.S. 331, HAVING IN THE
MEANTIME BEEN DECIDED BY THIS COURT - COULD PROPERLY CONSIDER THE
QUESTION OF THE GRANTOR'S LIABILITY UNDER SEC. 22(A) OF THE ACT, EVEN
THOUGH THE COMMISSIONER HAD NOT RELIED ON THAT SECTION IN THE
PROCEEDING BEFORE THE BOARD.  PP. 554, 559. 

2.  CONSIDERATION OF THAT QUESTION BY THE CIRCUIT COURT OF APPEALS,
IN THE CIRCUMSTANCES OF THIS CASE, IS CONSISTENT WITH ITS STATUTORY
AUTHORITY IN REVIEWING DECISIONS OF THE BOARD OF TAX APPEALS TO MODIFY,
REVERSE OR REMAND, "AS JUSTICE MAY REQUIRE," DECISIONS WHICH ARE NOT IN
ACCORDANCE WITH LAW.  P. 556. 

3.  A RIGID AND UNDEVIATING JUDICIALLY DECLARED PRACTICE WHEREBY
COURTS OF REVIEW WOULD INVARIABLY AND UNDER ALL CIRCUMSTANCES DECLINE
TO CONSIDER ALL QUESTIONS WHICH HAD NOT PREVIOUSLY BEEN SPECIFICALLY
URGED WOULD BE OUT OF HARMONY WITH THE POLICY THAT RULES OF PROCEDURE
AND PRACTICE SHOULD PROMOTE, NOT DEFEAT, THE ENDS OF JUSTICE.  P. 557. 

4.  THE CAUSE IS REMANDED IN ORDER THAT THE APPLICABILITY OF SEC.
22(A) MAY BE CONSIDERED IN THE LIGHT OF SUCH EVIDENCE TOUCHING THAT
ISSUE AS MAY BE OFFERED BY THE TAXPAYER.  P. 560. 

HORMEL V. HELVERING, COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 311 U.S. 626, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 39 B.T.A. 244, WHICH SET ASIDE A DETERMINATION OF
A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE COMMISSIONER OF INTERNAL REVENUE ASSESSED A DEFICIENCY AGAINST
PETITIONER FOR FAILURE TO INCLUDE IN HIS 1934 AND 1935 TAX RETURNS THE
INCOME OF THREE SEPARATE TRUSTS DECLARED BY HIM IN 1934.  EACH OF THE
DECLARATIONS OF TRUST RECITED THAT THE BENEFICIARIES WERE "JAY C.
HORMEL (PETITIONER HIMSELF), AND GERMAINE D. HORMEL, HIS WIFE, AS
GUARDIAN FOR THEIR SON," A DIFFERENT SON BEING DESIGNATED BY EACH TRUST
INSTRUMENT.  EACH TRUST ESTATE CONSISTED OF SHARES OF STOCK IN GEO. A.
HORMEL & CO., OF WHICH PETITIONER WAS AN OFFICER.  PETITIONER NAMED
HIMSELF AND ANOTHER AS CO-TRUSTEES; ALL DIVIDENDS FROM EACH TRUST
ESTATE, UP TO $2000 A YEAR, WERE TO BE PAID TO PETITIONER'S WIFE AS
GUARDIAN FOR THE SON NAMED IN THE PARTICULAR TRUST INSTRUMENT, AND ANY
EXCESS OVER $2000 WAS TO BE PAID TO PETITIONER; THE TRUSTS WERE TO
EXPIRE AUTOMATICALLY AFTER THREE YEARS, OR UPON THE DEATH OF
PETITIONER, OR UPON THE DEATH OF THE NAMED SON, WHICHEVER EVENT SHOULD
OCCUR FIRST; UPON EXPIRATION OF EACH TRUST, THE ENTIRE PRINCIPAL SHOULD
BE THE PROPERTY OF PETITIONER, HIS LEGATEES, DEVISEES, OR HEIRS;
PETITIONER AND HIS WIFE (AS GUARDIAN) HAD THE POWER TO REMOVE
PETITIONER'S CO-TRUSTEE AT ANY TIME, AND TO CHOOSE A SUCCESSOR; THE CO
TRUSTEES COULD APPOINT PROXIES TO EXERCISE VOTING RIGHTS OVER THE
SHARES OF STOCK MAKING UP THE TRUST ESTATES, AND COULD SELL THE
SECURITIES DEPOSITED AND SUBSTITUTE OTHERS; IT WAS PROVIDED THAT NO
TITLE TO THE TRUST ESTATES SHOULD VEST IN PETITIONER'S WIFE, AS
GUARDIAN, OR IN HIS SONS, AND IT WAS FURTHER PROVIDED THAT THE WIFE AND
SONS SHOULD HAVE NO POWER "TO SELL, TRANSFER, ENCUMBER OR IN ANY MANNER
ANTICIPATE OR DISPOSE OF ANY INTEREST IN THE TRUST ESTATE"; AND,
FINALLY, THE TRUST INSTRUMENTS STATED THAT THE CO-TRUSTEES WERE TO BE
RESPONSIBLE FOR LOSS ONLY UPON WILFUL AND DELIBERATE VIOLATIONS OF
THEIR DUTIES. 

ALL OF THE TRUST INCOME FOR THE YEARS IN QUESTION WAS DISTRIBUTED TO
PETITIONER'S WIFE AS GUARDIAN, WHO REPORTED IT TO THE FEDERAL
GOVERNMENT AS GUARDIANSHIP INCOME.  PETITIONER, IN HIS INDIVIDUAL
RETURNS, DID NOT INCLUDE IT.  THE COMMISSIONER, TAKING THE POSITION
THAT PETITIONER SHOULD HAVE INCLUDED THE TRUST INCOME IN HIS INDIVIDUAL
RETURNS, ASSESSED A DEFICIENCY AGAINST HIM, ASSERTING THAT THE TRUSTS
WERE "REVOCABLE" AND THE INCOME THEREFORE PETITIONER'S WITHIN THE
MEANING OF SEC. 166 OF THE REVENUE ACT OF 1934.  FN1  THE BOARD OF TAX
APPEALS DECIDED AGAINST THE COMMISSIONER, HOLDING THAT THE INCOME IN
QUESTION WAS TAXABLE TO PETITIONER NEITHER UNDER SEC. 166 NOR 167,  FN2
THE TWO SECTIONS EXPRESSLY RELIED ON BY THE COMMISSIONER BEFORE THE
BOARD.  IN THE CIRCUIT COURT OF APPEALS, THE COMMISSIONER ABANDONED
RELIANCE ON SEC. 166, URGED THAT THE BOARD WAS IN ERROR AS TO
TAXABILITY UNDER SEC. 167, AND ARGUED THAT IN ANY EVENT THE INCOME WAS
TAXABLE TO PETITIONER UNDER SEC. 22(A).  FN3  THE TAXPAYER ARGUED THAT
THE APPLICABILITY OF SEC. 22(A) WAS NOT OPEN FOR CONSIDERATION,
INASMUCH AS THAT SECTION HAD NOT BEEN RELIED ON BEFORE THE BOARD.  THE
CIRCUIT COURT OF APPEALS, THOUGH AGREEING WITH THE BOARD AS TO NON
TAXABILITY UNDER SECS. 166 AND 167, NEVERTHELESS RULED THAT SEC. 22(A)
COULD PROPERLY BE CONSIDERED, AND HELD THE INCOME TAXABLE TO PETITIONER
UNDER THAT SECTION.  BECAUSE OF A CONFLICT AMONG THE CIRCUIT COURTS OF
APPEALS ON THE PROPRIETY OF CONSIDERING SEC. 22(A) UNDER THESE
CIRCUMSTANCES,  FN4  WE GRANTED CERTIORARI.  311 U.S. 626.  TWO
QUESTIONS ARE PRESENTED FOR OUR DECISION:  FIRST, WAS THE COURT BELOW
CORRECT IN HOLDING THAT SEC. 22(A) SHOULD BE CONSIDERED?  SECOND, IF
SO, WAS THE COURT BELOW JUSTIFIED IN DETERMINING THAT THE INCOME OF
THESE TRUSTS WAS TAXABLE TO PETITIONER UNDER SEC. 22(A)? 

PETITIONER IN EFFECT CHALLENGES THE POWER OF THE CIRCUIT COURT OF
APPEALS TO PASS UPON ANY QUESTIONS OTHER THAN THOSE WHICH WERE DIRECTLY
AND SQUARELY PRESENTED IN THE PROCEEDINGS BEFORE THE BOARD OF TAX
APPEALS.  THAT COURT'S AUTHORITY TO REVIEW DECISIONS OF THE BOARD RESTS
ON STATUTES, WHICH PROVIDE IN PART THAT THE CIRCUIT COURTS OF APPEALS
"HAVE POWER TO AFFIRM OR, IF THE DECISION OF THE BOARD IS NOT IN
ACCORDANCE WITH LAW, TO MODIFY OR TO REVERSE THE DECISION OF THE BOARD,
WITH OR WITHOUT REMANDING THE CASE FOR A REHEARING, AS JUSTICE MAY
REQUIRE."  26 U.S.C. SEC. 1141(C)(1)(SUPP.  1939).  IN GENERAL, IT IS
THE FUNCTION OF THE BOARD TO DETERMINE THE FACTS OF A TAX CONTROVERSY
ON ISSUES RAISED BEFORE IT AND TO APPLY THE LAW TO THOSE FACTS; AND IT
IS THE FUNCTION OF THE REVIEWING COURT TO DECIDE WHETHER THE BOARD HAS
APPLIED THE CORRECT RULE OF LAW.  FN5 

ORDINARILY AN APPELLATE COURT DOES NOT GIVE CONSIDERATION TO ISSUES
NOT RAISED BELOW.  FOR OUR PROCEDURAL SCHEME CONTEMPLATES THAT PARTIES
SHALL COME TO ISSUE IN THE TRIAL FORUM VESTED WITH AUTHORITY TO
DETERMINE QUESTIONS OF FACT.  THIS IS ESSENTIAL IN ORDER THAT PARTIES
MAY HAVE THE OPPORTUNITY TO OFFER ALL THE EVIDENCE THEY BELIEVE
RELEVANT TO THE ISSUES WHICH THE TRIAL TRIBUNAL IS ALONE COMPETENT TO
DECIDE; IT IS EQUALLY ESSENTIAL IN ORDER THAT LITIGANTS MAY NOT BE
SURPRISED ON APPEAL BY FINAL DECISION THERE OF ISSUES UPON WHICH THEY
HAVE HAD NO OPPORTUNITY TO INTRODUCE EVIDENCE.  AND THE BASIC REASONS
WHICH SUPPORT THIS GENERAL PRINCIPLE APPLICABLE TO TRIAL COURTS MAKE IT
EQUALLY DESIRABLE THAT PARTIES SHOULD HAVE AN OPPORTUNITY TO OFFER
EVIDENCE ON THE GENERAL ISSUES INVOLVED IN THE LESS FORMAL PROCEEDINGS
BEFORE ADMINISTRATIVE AGENCIES ENTRUSTED WITH THE RESPONSIBILITY OF
FACT FINDING.  RECOGNITION OF THIS GENERAL PRINCIPLE HAS CAUSED THIS
COURT TO SAY ON A NUMBER OF OCCASIONS THAT THE REVIEWING COURT SHOULD
PASS BY, WITHOUT DECISION, QUESTIONS WHICH WERE NOT URGED BEFORE THE
BOARD OF TAX APPEALS.  BUT THOSE CASES DO NOT ANNOUNCE AN INFLEXIBLE
PRACTICE AS INDEED THEY COULD NOT WITHOUT DOING VIOLENCE TO THE
STATUTES WHICH GIVE TO CIRCUIT COURTS OF APPEALS REVIEWING DECISIONS OF
THE BOARD OF TAX APPEALS THE POWER TO MODIFY, REVERSE OR REMAND
DECISIONS NOT IN ACCORDANCE WITH LAW "AS JUSTICE MAY REQUIRE."  THERE
MAY ALWAYS BE EXCEPTIONAL CASES OR PARTICULAR CIRCUMSTANCES WHICH WILL
PROMPT A REVIEWING OR APPELLATE COURT, WHERE INJUSTICE MIGHT OTHERWISE
RESULT, TO CONSIDER QUESTIONS OF LAW WHICH WERE NEITHER PRESSED NOR
PASSED UPON BY THE COURT OR ADMINISTRATIVE AGENCY BELOW.  SEE BLAIR V.
OESTERLEIN MACHINE CO., 275 U.S. 220, 225. 

RULES OF PRACTICE AND PROCEDURE ARE DEVISED TO PROMOTE THE ENDS OF
JUSTICE, NOT TO DEFEAT THEM.  A RIGID AND UNDEVIATING JUDICIALLY
DECLARED PRACTICE UNDER WHICH COURTS OF REVIEW WOULD INVARIABLY AND
UNDER ALL CIRCUMSTANCES DECLINE TO CONSIDER ALL QUESTIONS WHICH HAD NOT
PREVIOUSLY BEEN SPECIFICALLY URGED WOULD BE OUT OF HARMONY WITH THIS
POLICY.  ORDERLY RULES OF PROCEDURE DO NOT REQUIRE SACRIFICE OF THE
RULES OF FUNDAMENTAL JUSTICE.  AND EXAMINATION OF THE CASES RELIED UPON
BY PETITIONER DISCLOSES THAT THIS COURT, IN FOLLOWING IN SOME CASES THE
GENERAL PRINCIPLE SOUGHT TO BE INVOKED HERE BY PETITIONER, HAS BEEN
CAREFUL TO POINT OUT THE CIRCUMSTANCES JUSTIFYING APPLICATION OF THE
PRACTICE IN THE PARTICULAR CASE.  THUS, FOR EXAMPLE, WE HELD IN
HELVERING V. WOOD, 309 U.S. 344, 348-349, THAT THE GOVERNMENT COULD NOT
PRESENT IN THIS COURT AS A WHOLLY NEW ISSUE THE APPLICABILITY OF SEC.
22(A).  BUT WE THERE ESPECIALLY RELIED UPON THE FACT THAT THE
GOVERNMENT, WHEN THE CASE WAS BEFORE THE CIRCUIT COURT OF APPEALS, HAD
MADE AN EXPRESS WAIVER OF ANY RELIANCE UPON 22(A).  IN HELVERING V. TEX
PENN OIL CO., 300 U.S. 481, 498, THIS COURT DECLINED TO CONSIDER A
NEWLY PRESENTED QUESTION, BUT POINTED OUT THAT IT HAD NOT BEEN RAISED
BY THE COMMISSIONER EITHER IN HIS NOTICE OF TAX DEFICIENCY, IN HIS
APPEARANCES BEFORE THE BOARD OF TAX APPEALS OR THE CIRCUIT COURT OF
APPEALS, OR IN HIS PETITION FOR CERTIORARI TO THIS COURT.  AND IN
GENERAL UTILITIES & OPERATING CO. V. HELVERING, 296 U.S. 200, 206-207,
THOUGH THIS COURT SAID THAT THE CIRCUIT COURT OF APPEALS SHOULD NOT
HAVE CONSIDERED A CONTENTION NOT PRESENTED TO OR RULED UPON BY THE
BOARD OF TAX APPEALS, THE STATEMENT WAS BUTTRESSED BY ADDING THAT THE
CIRCUIT COURT OF APPEALS HAD "MADE AN INFERENCE OF FACT DIRECTLY IN
CONFLICT WITH THE STIPULATION OF THE PARTIES AND THE FINDINGS, FOR
WHICH WE THINK THE RECORD AFFORDS NO SUPPORT WHATEVER.  TO REMAND THE
CAUSE FOR FURTHER FINDINGS WOULD BE FUTILE.  THE BOARD COULD NOT
PROPERLY FIND ANYTHING WHICH WOULD ASSIST THE COMMISSIONER'S CAUSE." 
THE PLAIN IMPLICATION OF THAT DECISION WAS THAT THE CAUSE WOULD HAVE
BEEN REMANDED TO THE BOARD OF TAX APPEALS HAD THE COURT CONSIDERED THE
NEWLY RAISED POINT TO BE OF SUFFICIENT MERIT.  THESE DECISIONS AND
OTHERS LIKE THEM, WHILE RECOGNIZING THE DESIRABILITY AND EXISTENCE OF A
GENERAL PRACTICE UNDER WHICH APPELLATE COURTS CONFINE THEMSELVES TO THE
ISSUES RAISED BELOW, NEVERTHELESS DO NOT LOSE SIGHT OF THE FACT THAT
SUCH APPELLATE PRACTICE SHOULD NOT BE APPLIED WHERE THE OBVIOUS RESULT
WOULD BE A PLAIN MISCARRIAGE OF JUSTICE.  ANALOGOUS IN PRINCIPLE IS THE
PHILOSOPHY WHICH UNDERLIES THIS COURT'S DECISIONS WITH RELATION TO
APPELLATE PRACTICES IN OTHER CASES:  THOSE IN WHICH IT HAS BEEN HELD
THAT A DECISION OF THE BOARD OF TAX APPEALS CAN BE SUPPORTED IN THE
REVIEWING COURT ON A NEW THEORY OF LAW; FN6  THOSE WHICH HAVE BEEN
REMANDED BECAUSE THE LOWER COURTS FAILED TO GIVE CONSIDERATION TO A
PHASE OF THE CASE INVOLVING LEGAL THEORIES NOT PRESENTED; FN7  AND
THOSE IN WHICH THERE HAVE BEEN JUDICIAL INTERPRETATIONS OF EXISTING LAW
AFTER DECISION BELOW AND PENDING APPEAL - INTERPRETATIONS WHICH IF
APPLIED MIGHT HAVE MATERIALLY ALTERED THE RESULT.  FN8  WHETHER
ARTICULATED OR NOT, THE PHILOSOPHY UNDERLYING THE EXCEPTIONS TO THE
GENERAL PRACTICE IS IN ACCORD WITH THE STATUTORY AUTHORITY GIVEN TO
COURTS REVIEWING DECISIONS OF THE BOARD OF TAX APPEALS - DECISIONS NOT
IN ACCORDANCE WITH LAW SHOULD BE MODIFIED, REVERSED OR REVERSED AND
REMANDED "AS JUSTICE MAY REQUIRE." 

IN ACCORDANCE WITH THIS PRINCIPLE, WE ARE OF OPINION THAT THE COURT
BELOW SHOULD HAVE GIVEN AND PROPERLY DID GIVE CONSIDERATION TO SEC.
22(A) IN DETERMINING PETITIONER'S TAX LIABILITY.  THE COMMISSIONER
URGED THIS POINT BEFORE THE CIRCUIT COURT OF APPEALS AND HAS STRONGLY
PRESENTED IT HERE.  AT THE TIME THE BOARD OF TAX APPEALS MADE ITS
DECISION IN THIS CASE, WE HAD NOT YET HANDED DOWN OUR OPINION IN
HELVERING V. CLIFFORD, 309 U.S. 331, IN WHICH WE HELD THAT UNDER SEC.
22(A) THE INCOME OF CERTAIN TRUSTS WAS TAXABLE TO RESPONDENT.  THE
CIRCUIT COURT OF APPEALS WAS OF OPINION THAT THERE WERE NO CONTROLLING
DISTINCTIONS BETWEEN THE TRUSTS CREATED BY PETITIONER IN THIS CASE AND
THOSE CREATED BY CLIFFORD.  HERE, AS THERE, CONTROL OVER THE TRUSTS WAS
COMPLETELY IN THE HANDS OF THE TAXPAYER AND HIS WIFE.  FOR WHILE
PETITIONER'S TRUST INSTRUMENTS SHOWED A CO-TRUSTEE ACTING WITH
PETITIONER, THE SAME INSTRUMENTS ALSO DISCLOSED THAT SUCH CO-TRUSTEE
COULD BE REMOVED AT ANY TIME BY THE JOINT ACTION OF PETITIONER AND HIS
WIFE.  "TO HOLD OTHERWISE (I.E., THAT PETITIONER IS NOT SUBJECT TO THE
TAX) WOULD BE TO TREAT THE WIFE AS A COMPLETE STRANGER; TO LET MERE
FORMALISM OBSCURE THE NORMAL CONSEQUENCES OF FAMILY SOLIDARITY; AND TO
FORCE CONCEPTS OF OWNERSHIP TO BE FASHIONED OUT OF LEGAL NICETIES WHICH
MAY HAVE LITTLE OR NO SIGNIFICANCE IN SUCH HOUSEHOLD ARRANGEMENTS." 
FN9  AS THE RECORD NOW STANDS WE THINK THE COURT BELOW CORRECTLY
CONCLUDED THAT THE TRUST INCOME WAS TAXABLE TO PETITIONER UNDER THE
PRINCIPLES ANNOUNCED IN THE CLIFFORD CASE.  THEREFORE TO APPLY HERE THE
GENERAL PRINCIPLE OF APPELLATE PRACTICE FOR WHICH PETITIONER CONTENDS
WOULD RESULT IN PERMITTING HIM WHOLLY TO ESCAPE PAYMENT OF A TAX WHICH
UNDER THE RECORD BEFORE US HE CLEARLY OWES.  THUS VIEWED, THIS IS
EXACTLY THE TYPE OF CASE WHERE APPLICATION OF THE GENERAL PRACTICE
WOULD DEFEAT RATHER THAN PROMOTE THE ENDS OF JUSTICE, AND THE COURT
BELOW WAS RIGHT IN SO HOLDING. 

BUT THE BOARD OF TAX APPEALS NEITHER FOUND THE FACTS NOR CONSIDERED
THE APPLICABILITY OF 22(A) IN THE LIGHT OF THE CLIFFORD CASE.  CONGRESS
HAS ENTRUSTED THE BOARD WITH EXCLUSIVE AUTHORITY TO DETERMINE DISPUTED
FACTS.  UNDER THESE CIRCUMSTANCES WE DO NOT FEEL THAT PETITIONER SHOULD
BE FORECLOSED FROM ALL OPPORTUNITY TO OFFER EVIDENCE BEFORE THE BOARD
ON THIS ISSUE, HOWEVER REMOTE MAY BE HIS CHANCE TO TAKE HIS CASE OUT OF
THE CLIFFORD RULE.  FN10  ACCORDINGLY, THE JUDGMENT OF THE LOWER COURT
REVERSING THE DECISION OF THE BOARD OF TAX APPEALS IS AFFIRMED, WITH
DIRECTIONS TO THE BOARD OF TAX APPEALS FOR FURTHER PROCEEDINGS IN
ACCORDANCE WITH THIS OPINION.  AFFIRMED. 

FN1  "WHERE AT ANY TIME THE POWER TO REVEST IN THE GRANTOR TITLE TO
ANY PART OF THE CORPUS OF THE TRUST IS VESTED - 

"(1)  IN THE GRANTOR, EITHER ALONE OR IN CONJUNCTION WITH ANY PERSON
NOT HAVING A SUBSTANTIAL ADVERSE INTEREST IN THE DISPOSITION OF SUCH
PART OF THE CORPUS OR THE INCOME THEREFROM, OR    "(2)  IN ANY PERSON
NOT HAVING A SUBSTANTIAL ADVERSE INTEREST IN THE DISPOSITION OF SUCH
PART OF THE CORPUS OR THE INCOME THEREFROM, THEN THE INCOME OF SUCH
PART OF THE TRUST SHALL BE INCLUDED IN COMPUTING THE NET INCOME OF THE
GRANTOR." 

FN2  SECTION 167 READS IN PART AS FOLLOWS:  "(A)  WHERE ANY PART OF
THE INCOME OF A TRUST - 

"(1)  IS, OR IN THE DISCRETION OF THE GRANTOR OR OF ANY PERSON NOT
HAVING A SUBSTANTIAL ADVERSE INTEREST IN THE DISPOSITION OF SUCH PART
OF THE INCOME MAY BE, HELD OR ACCUMULATED FOR FUTURE DISTRIBUTION TO
THE GRANTOR; OR 

"(2)  MAY, IN THE DISCRETION OF THE GRANTOR OR OF ANY PERSON NOT
HAVING A SUBSTANTIAL ADVERSE INTEREST IN THE DISPOSITION OF SUCH PART
OF THE INCOME, BE DISTRIBUTED TO THE GRANTOR; ..." 

FN3  "'GROSS INCOME' INCLUDES GAINS, PROFITS, AND INCOME DERIVED FROM
SALARIES, WAGES, OR COMPENSATION FOR PERSONAL SERVICE, OF WHATEVER KIND
AND IN WHATEVER FORM PAID, OR FROM PROFESSIONS, VOCATIONS, TRADES,
BUSINESSES, COMMERCE, OR SALES, OR DEALINGS IN PROPERTY, WHETHER REAL
OR PERSONAL, GROWING OUT OF THE OWNERSHIP OR USE OF OR INTEREST IN SUCH
PROPERTY; ALSO FROM INTEREST, RENT, DIVIDENDS, SECURITIES, OR THE
TRANSACTION OF ANY BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR
PROFITS AND INCOME DERIVED FROM ANY SOURCE WHATEVER.  ..." 

FN4  CF., E.G., HELVERING V. HORMEL, 111 F.2D 1(THE DECISION BELOW),
WITH HELVERING V. RICHTER, 114 F.2D 452, REVERSED, POST, P. 561. 

FN5  THE BOARD'S RULINGS ON QUESTIONS OF LAW, WHILE NOT AS CONCLUSIVE
AS ITS FINDINGS OF FACT, ARE NEVERTHELESS PERSUASIVE, AND IT IS
DESIRABLE THAT A REVIEWING COURT HAVE THE BENEFIT OF SUCH RULINGS.  SEE
HELVERING V. WOOD, 309 U.S. 344, 349; HELVERING V. TEX-PENN OIL CO.,
300 U.S. 481, 498.  THIS IS TRUE NOT ONLY OF THE BOARD OF TAX APPEALS
BUT OF OTHER ADMINISTRATIVE BODIES AS WELL.  CF. FEDERAL TRADE
COMMISSION V. R.F. KEPPEL & BRO., 291 U.S. 304, 314. 

FN6  E.G., HELVERING V. GOWRAN, 302 U.S. 238, 246. 

FN7  E.G., UNITED STATES V. SHELBY IRON CO., 273 U.S. 571, 579;
UNITED STATES V. RIO GRANDE DAM & IRRIGATION CO., 184 U.S. 416, 423. 

FN8  E.G., VANDENBARK V. OWENS-ILLINOIS GLASS CO., 311 U.S. 538, AND
CASES THERE CITED. 

FN9  HELVERING V. CLIFFORD, 309 U.S. 331, 336-337. 

FN10  IN THIS CONNECTION PETITIONER POINTED OUT IN HIS BRIEF BEFORE
THE CIRCUIT COURT OF APPEALS THAT "IF ANY CONTENTION WHATSOEVER HAD AT
ANY TIME BEEN SUGGESTED OR CONSIDERED AS TO SECTION 22, THE MATTER OF
THE EVIDENCE INTRODUCED OR TO BE INTRODUCED WOULD HAVE REQUIRED FURTHER
CONSIDERATION." 
..END :



HELVERING V. RICHTER, 312 U.S. 561 


NO 516.  ARGUED MARCH 3, 4, 1941.  - DECIDED MARCH 17, 1941.  - 114 F.2D
452, REVERSED. 


DECIDED UPON THE AUTHORITY OF HORMEL V. HELVERING, ANTE, P. 552.  P.
562. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. RICHTER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 311 U.S. 641, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS SETTING ASIDE A DETERMINATION OF A DEFICIENCY
IN INCOME TAX. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

BECAUSE THE DECISION BELOW, 114 F.2D 452, WAS IN CONFLICT WITH THAT
OF THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN HELVERING V.
HORMEL, 111 F.2D 1, AFFIRMED, ANTE, P. 552, WE GRANTED CERTIORARI
"LIMITED TO THE FIRST QUESTION PRESENTED BY THE PETITION FOR THE
WRIT."  311 U.S. 641.  THE PETITION STATED THAT QUESTION AS FOLLOWS:
LOWS: 

"THE TAXPAYER TRANSFERRED SECURITIES TO A THIRD PARTY IN TRUST TO PAY
THE INCOME TO HIS WIFE.  AT THE END OF FIVE YEARS, OR EARLIER IF THE
BENEFICIARY CONSENTED, THE SECURITIES WERE TO BE TRANSFERRED BACK TO
THE TAXPAYER.  THE BOARD OF TAX APPEALS HELD THAT THE GRANTOR WAS NOT
TAXABLE WITH RESPECT TO THE INCOME FROM THE TRUST.  TWO QUESTIONS ARE
PRESENTED: 

"1.  WHETHER, BY INVOKING THE GENERAL GROSS INCOME PROVISIONS OF
GOVERNMENT'S CASE ON APPEAL AS TO PRECLUDE THE CIRCUIT COURT OF APPEALS
FROM CONSIDERING THE ISSUE. 

"2.  WHETHER, ON THE MERITS, THE TRUST INCOME WAS TAXABLE AS INCOME
OF THE GRANTOR UNDER SECTION 22." 

IN VIEW OF THE LIMITED GRANT OF CERTIORARI, THE SECOND QUESTION IS
NOT BEFORE US.  ON THE FIRST QUESTION, THE CIRCUIT COURT OF APPEALS
HELD THAT IT COULD NOT CONSIDER THE APPLICABILITY OF SEC. 22(A), THAT
BEING AN "ISSUE NOW FOR THE FIRST TIME PRESENTED BY THE COMMISSIONER." 
THE DECISION OF THE BOARD OF TAX APPEALS, WHICH THE CIRCUIT COURT OF
APPEALS AFFIRMED, WAS HANDED DOWN PRIOR TO OUR DECISION IN HELVERING V.
CLIFFORD, 309 U.S. 331.  RESPONDENT URGES THAT HAD HE BEEN ADVISED WITH
FAIR CERTAINTY THAT THE GOVERNMENT RELIED UPON SEC. 22(A), HE COULD
HAVE INTRODUCED ADDITIONAL EVIDENCE DIRECTED TO THAT ISSUE.  FOR
REASONS SET OUT IN OUR DECISION IN HORMEL V. HELVERING, ANTE, P. 552,
WE ARE OF OPINION THAT THE CIRCUIT COURT OF APPEALS WAS IN ERROR IN ITS
CONCLUSION, BUT WE ARE ALSO OF OPINION THAT RESPONDENT IS ENTITLED TO
INTRODUCE ADDITIONAL EVIDENCE IF HE SO DESIRES.  THE JUDGMENT IS
ACCORDINGLY REVERSED, WITH DIRECTIONS TO THE COURT BELOW TO REMAND TO
THE BOARD OF TAX APPEALS FOR REHEARING IN THE LIGHT OF THE CLIFFORD
CASE.  REVERSED. 
..END :

















METRO. CASUALTY CO. V. STEVENS, 312 U.S. 563 


NO. 425.  ARGUED FEBRUARY 13, 1941.  - DECIDED MARCH 17, 1941.  - 293
MICH. 31 - 291 N.W. 211, AFFIRMED. 


ONE AGAINST WHOM A STATE COURT ISSUED A WRIT OF GARNISHMENT, REQUIRING
HIM TO MAKE DISCLOSURE CONCERNING HIS LIABILITY TO JUDGMENT DEBTORS,
APPLIED TO THE STATE COURT FOR REMOVAL OF THE PROCEEDING TO THE FEDERAL
COURT.  THE APPLICATION WAS DENIED, WHEREUPON THE GARNISHEE APPLIED TO
THE FEDERAL COURT FOR REMOVAL, AND FILED IN THAT COURT A DISCLOSURE
DENYING LIABILITY TO THE JUDGMENT DEBTOR.  WHILE THE GARNISHEE'S
APPLICATION WAS PENDING IN THE FEDERAL COURT, THE STATE COURT ENTERED A
DEFAULT JUDGMENT AGAINST THE GARNISHEE FOR FAILURE TO APPEAR. 
SUBSEQUENTLY, THE FEDERAL COURT REMANDED THE CAUSE TO THE STATE COURT,
WHICH THEREUPON REENTERED A DEFAULT JUDGMENT AGAINST THE GARNISHEE. 
UPON REVIEW HERE OF THAT JUDGMENT, HELD: 

1.  THE ORDER OF THE FEDERAL COURT REMANDING THE CAUSE TO THE STATE
COURT WAS NOT REVIEWABLE DIRECTLY OR INDIRECTLY.  P. 565. 

2.  PROCEEDINGS IN THE STATE COURT SUBSEQUENT TO THE PETITION FOR
REMOVAL WERE VALID IF THE SUIT WAS NOT IN FACT REMOVABLE.  P. 566. 

3.  THE FEDERAL COURT'S ORDER OF REMAND BEING NOT REVIEWABLE, IT MUST
BE ASSUMED FOR THE PURPOSES OF THIS CASE THAT THE PROCEEDING WAS NOT
REMOVABLE.  P. 569. 

4.  THE STATE COURT HAD JURISDICTION TO ENTER THE DEFAULT JUDGMENT,
AND IT WAS FOR THAT COURT TO DETERMINE THE EFFECT OF THE DISCLOSURE
FILED IN THE FEDERAL COURT.  P. 569. 

5.  IN CASES SUCH AS THIS, IT IS BETTER PRACTICE FOR THE STATE COURT,
IF IT BE ASSURED THAT THE FEDERAL COURT WILL DECIDE PROMPTLY THE
QUESTION OF REMOVABILITY, TO AWAIT THAT DECISION; BUT ITS FAILURE SO TO
DO DENIES NO FEDERAL RIGHT IF THE CAUSE BE NOT REMOVABLE.  P. 569. 

METROPOLITAN CASUALTY INSURANCE CO. V. STEVENS ET AL. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

CERTIORARI, 311 U.S. 637, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE PETITIONER.  APPLICATIONS TO THE STATE COURT AND TO THE
FEDERAL COURT FOR REMOVAL OF THE CAUSE HAD BEEN DENIED. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED IN EFFECT TO HOLD INVALID A DEFAULT JUDGMENT ENTERED BY
A STATE COURT IN A GARNISHMENT PROCEEDING AFTER IT HAD DENIED A
PETITION FOR REMOVAL TO A FEDERAL DISTRICT COURT.  THE PRINCIPAL
QUESTIONS ARE WHETHER WE MAY REVIEW AN ORDER OF THE FEDERAL DISTRICT
COURT REMANDING THE SUIT TO THE COURT FROM WHICH IT WAS REMOVED, AND
WHETHER THE LATTER COURT WAS FREE TO DISREGARD A DISCLOSURE FILED IN
THE FEDERAL COURT BEFORE THE DEFAULT JUDGMENT WAS ENTERED.  FROM THE
RECORD THE FOLLOWING APPEARS: 

ON MARCH 8, 1939, RESPONDENT OBTAINED A WRIT OF GARNISHMENT FROM A
MICHIGAN STATE COURT REQUIRING PETITIONER TO APPEAR ON OR BEFORE MARCH
31 AND DISCLOSE WHETHER IT WAS LIABLE TO INDIVIDUALS AGAINST WHOM
RESPONDENT HAD RECOVERED A JUDGMENT.  ON MARCH 28, PETITIONER FILED AN
APPLICATION AND BOND IN THE STATE COURT FOR REMOVAL OF THE PROCEEDING
TO THE PROPER FEDERAL DISTRICT COURT.  ON APRIL 4, THE STATE COURT
DENIED THE APPLICATION.  ON APRIL 10, PETITIONER FILED IN THE FEDERAL
DISTRICT COURT COPIES OF ALL PAPERS ON RECORD IN THE STATE COURT AND
ITS DISCLOSURE DENYING ANY LIABILITY TO RESPONDENT OR TO THE JUDGMENT
DEBTORS.  THE NEXT DAY, RESPONDENT ENTERED PETITIONER'S DEFAULT IN THE
STATE COURT FOR FAILURE TO APPEAR, AND NOTIFIED PETITIONER THAT
RESPONDENT WOULD MOVE FOR JUDGMENT ON APRIL 17. 

ON APRIL 15, PETITIONER NOTIFIED RESPONDENT OF ITS ATTEMPT TO REMOVE
THE SUIT NOTWITHSTANDING THE RULING OF THE STATE COURT.  RESPONDENT
PROMPTLY MOVED TO HAVE THE PROCEEDING REMANDED, AND ON THE SAME DAY THE
DISTRICT JUDGE GRANTED THE MOTION.  THE REMAND ORDER WAS FILED IN THE
STATE COURT ON APRIL 17.  RESPONDENT THEREUPON ENTERED PETITIONER'S
DEFAULT A SECOND TIME, INTRODUCED EVIDENCE, AND OBTAINED A DEFAULT
JUDGMENT.  ON APRIL 18, PETITIONER UNSUCCESSFULLY MOVED TO VACATE THE
JUDGMENT.  APPEAL TO THE MICHIGAN SUPREME COURT FOLLOWED AND THE
JUDGMENT WAS AFFIRMED.  293 MICH. 31; 291 N.W. 211.  BECAUSE IT
INVOLVED IMPORTANT QUESTIONS CONCERNING THE REMOVAL STATUTE (28 U.S.C.
SEC. 71), WE BROUGHT THE CASE HERE.  311 U.S. 637. 

PETITIONER CONTENDS THAT THE GARNISHMENT PROCEEDING WAS REMOVABLE AS
A SEPARABLE CONTROVERSY AND THAT THE STATE COURT THEREFORE WAS WITHOUT
JURISDICTION TO ENTER THE DEFAULT JUDGMENT.  FURTHER, PETITIONER
CONTENDS IN SUBSTANCE THAT THE PETITION FOR REMOVAL WHEN FILED IN THE
STATE COURT DEPRIVED THAT COURT OF POWER TO PROCEED WITH THE CAUSE, AT
LEAST UNTIL THE FEDERAL COURT HAD PASSED UPON THE QUESTION OF
REMOVABILITY, AND THAT IN ALL EVENTS THE REFUSAL OF THE STATE COURT TO
ACCORD ANY LEGAL EFFECT TO THE DISCLOSURE FILED IN THE FEDERAL DISTRICT
COURT WHILE THE PETITION FOR REMOVAL WAS PENDING THERE WAS A DENIAL OF
A FEDERAL RIGHT GIVEN BY THE REMOVAL STATUTE, SUPRA.  WE CANNOT AGREE. 

THE CASE IS RULED BY YANKAUS V. FELTENSTEIN, 244 U.S. 127.  FN1
THERE WE HELD THAT AN ORDER OF A FEDERAL DISTRICT COURT REMANDING THE
CAUSE TO THE STATE COURT WAS NOT REVIEWABLE DIRECTLY OR INDIRECTLY, AND
AFFIRMED THE JUDGMENT OF THE STATE COURT EVEN THOUGH IT HAD BEEN
SECURED BY DEFAULT.  FN2  WHILE THE OPINION DOES NOT EXPRESSLY CONSIDER
THE EFFECT OF A PETITION FOR REMOVAL ON SUBSEQUENT PROCEEDINGS IN THE
STATE COURT, THE CLEAR IMPORT OF THE DECISION IS THAT THE PROCEEDINGS
ARE VALID IF THE CASE WAS NOT IN FACT REMOVABLE.  SEE SOUTHERN PACIFIC
CO. V. WAITE, 279 F. 171; COMMODORES POINT TERMINAL CO. V. HUDNALL, 279
F. 606, 607; FIRST NATIONAL BANK V. KING BRIDGE CO., 9 FED. CAS. 88. 
FN3 

THE RULE THAT THE REMAND ORDER IS NOT REVIEWABLE STEMS FROM SEC. 28
OF THE JUDICIAL CODE (28 U.S.C. SEC. 71) AND FROM MANY DECISIONS
ADJUSTING THE RELATIONSHIP OF STATE AND FEDERAL COURTS AND THE SCOPE OF
AUTHORITY OF EACH IN CASES SOUGHT TO BE REMOVED FROM THE FORMER TO THE
LATTER.  THE RULE THAT PROCEEDINGS IN THE STATE COURT SUBSEQUENT TO THE
PETITION FOR REMOVAL ARE VALID IF THE SUIT WAS NOT IN FACT REMOVABLE IS
THE LOGICAL COROLLARY OF THE PROPOSITION THAT SUCH PROCEEDINGS ARE VOID
IF THE CAUSE WAS REMOVABLE.  IOWA CENTRAL RY. CO. V. BACON, 236 U.S.
305; MADISONVILLE TRACTION CO. V. ST. BERNARD MINING CO., 196 U.S. 239;
VIRGINIA V. RIVERS, 100 U.S. 313; PHOENIX INSURANCE CO. V. PECHNER, 95
U.S. 183; HOME LIFE INS. CO. V. DUNN, 19 WALL.  214; GORDON V. LONGEST,
16 PET. 97.  FN4 

WHEN A PETITION FOR REMOVAL TO A FEDERAL COURT IS DENIED BY THE STATE
COURT, THE PETITIONER MAY DO ONE OF THREE THINGS.  HE MAY OBJECT TO THE
RULING, SAVE AN EXCEPTION, AND LITIGATE THE CAUSE IN THE STATE COURTS. 
IOWA CENTRAL RY. CO. V. BACON, SUPRA; STONE V. SOUTH CAROLINA, 117 U.S.
430; BALTIMORE & OHIO R. CO. V. KOONTZ, 104 U.S. 5; REMOVAL CASES, 100
U.S. 457; GORDON V. LONGEST, SUPRA.  HE MAY REMOVE THE SUIT TO THE
FEDERAL COURT DESPITE THE RULING OF THE STATE COURT.  BALTIMORE & OHIO
R. CO. V. KOONTZ, SUPRA; KERN V. HUIDEKOPER, 103 U.S. 485; HOME LIFE
INS. CO. V. DUNN, SUPRA.  HE MAY PROCEED IN BOTH COURTS AT THE SAME
TIME.  KERN V. HUIDEKOPER, SUPRA; REMOVAL CASES, SUPRA. 

IF THE PETITIONER LITIGATES THE CAUSE IN THE STATE COURT AND
PRESERVES AN EXCEPTION, HE MAY HAVE THE ORDER OF THE STATE COURT
DENYING HIS PETITION FOR REMOVAL REVIEWED IN THE STATE APPELLATE
COURT.  IN PROPER CASES HE MAY COME HERE ASSERTING A DENIAL OF HIS
RIGHT OF REMOVAL.  IOWA CENTRAL RY. CO. V. BACON, SUPRA; STONE V. SOUTH
CAROLINA, SUPRA; REMOVAL CASES, SUPRA.  IF HE REMOVES THE CAUSE TO THE
FEDERAL DISTRICT COURT DESPITE THE STATE COURT RULING AND THE FEDERAL
COURT ASSUMES JURISDICTION OVER THE OBJECTION OF HIS ADVERSARY, THE
LATTER, AFTER FINAL JUDGMENT, MAY CONTEST THIS ASSUMPTION OF
JURISDICTION IN THE CIRCUIT COURT OF APPEALS, AND IN THIS COURT IN
PROPER CASES.  POWERS V. CHESAPEAKE & OHIO RY. CO., 169 U.S. 92; CATES
V. ALLEN, 149 U.S. 451; GRAVES V. CORBIN, 132 U.S. 571.  IF PETITIONER
PROCEEDS SIMULTANEOUSLY IN STATE AND FEDERAL COURTS AND BOTH RENDER
FINAL JUDGMENTS, HE AND HIS ADVERSARY MAY OBTAIN REVIEW OF THE QUESTION
OF REMOVABILITY BY FOLLOWING RESPECTIVELY THE COURSES JUST OUTLINED. 
KERN V. HUIDEKOPER, SUPRA; REMOVAL CASES, SUPRA. 

PETITIONER IS PROTECTED WHICHEVER COURSE HE ELECTS.  IF HE MAKES
TIMELY APPLICATION FOR REMOVAL AND PROPERLY OBJECTS TO ITS DENIAL BY
THE STATE COURT, PARTICIPATION IN SUBSEQUENT PROCEEDINGS IN THE STATE
COURT IS NOT A WAIVER OF HIS CLAIM THAT THE CAUSE SHOULD HAVE BEEN
LITIGATED IN THE FEDERAL COURT.  POWERS V. CHESAPEAKE & OHIO RY. CO.,
SUPRA; REMOVAL CASES, SUPRA; HOME LIFE INS. CO. V. DUNN, SUPRA.
COMPARE MILLER V. BUYER, 82 COLO. 474; 261 P. 659; STATE V. AMERICAN
SURETY CO., 26 IDAHO 652; 145 P. 1097; ASHLAND V. WHITCOMB, 120 WIS.
549; 98 N.W. 531.  IF HE REMOVES THE CAUSE NOTWITHSTANDING THE STATE
COURT RULING, HE MAY NEVERTHELESS RESIST FURTHER ACTION BY HIS OPPONENT
IN THE STATE COURT.  KERN V. HUIDEKOPER, SUPRA; REMOVAL CASES, SUPRA. 

HOWEVER, THE ISSUE OF REMOVABILITY IS CLOSED IF THE FEDERAL DISTRICT
COURT REFUSES TO ASSUME JURISDICTION AND REMANDS THE CAUSE.  SECTION 28
OF THE JUDICIAL CODE, SUPRA, PRECLUDES REVIEW OF THE REMAND ORDER
DIRECTLY (KLOEB V. ARMOUR & CO., 311 U.S. 199; EMPLOYERS REINSURANCE
CORP. V. BRYANT, 299 U.S. 374; CITY OF WACO V. U.S. FIDELITY & GUARANTY
CO., 293 U.S. 140; IN RE PENNSYLVANIA COMPANY, 137 U.S. 451), OR
INDIRECTLY AFTER FINAL JUDGMENT IN THE HIGHEST COURT OF THE STATE IN
WHICH DECISION COULD BE HAD.  MCLAUGHLIN BROTHERS V. HALLOWELL, 228
U.S. 278; MISSOURI PACIFIC RY. CO. V. FITZGERALD, 160 U.S. 556; COMPARE
PACIFIC LIVE STOCK CO. V. LEWIS, 241 U.S. 440. 

HERE, PETITIONER ATTEMPTED TO REMOVE THE CAUSE, AS IT HAD A RIGHT TO
DO, EVEN THOUGH THE STATE COURT HAD DENIED ITS PETITION FOR REMOVAL. 
THE FEDERAL COURT HELD IT WAS NOT REMOVABLE AS A SEPARABLE CONTROVERSY
AND REMANDED IT TO THE STATE COURT.  FOR THE REASONS ALREADY STATED, WE
ARE NOT AT LIBERTY TO REVIEW THE REMAND ORDER.  CONSEQUENTLY, WE MUST
ASSUME, SO FAR AS THIS CASE IS CONCERNED, THAT THE SUIT WAS NOT
REMOVABLE.  HAVING MADE THIS ASSUMPTION, WE MUST CONCLUDE THAT THE
STATE COURT HAD JURISDICTION TO ENTER THE DEFAULT JUDGMENT (YANKAUS V.
FELTERSTEIN, 244 U.S. 127; SOUTHERN PACIFIC CO. V. WAITE, 279 F. 171),
AND IT WAS FOR THAT COURT TO DETERMINE THE EFFECT OF THE DISCLOSURE
FILED IN THE FEDERAL COURT.  AYRES V. WISWALL, 112 U.S. 187; BROADWAY
INS. CO. V. CHICAGO G.W. RY. CO., 101 F. 507; COMPARE TRACY LOAN &
TRUST CO. V. MUTUAL LIFE INS. CO., 79 UTAH 33; 7 P.2D 279.  IF, IN
CASES LIKE THE PRESENT ONE, THE STATE COURT IS ASSURED THAT THE FEDERAL
COURT WILL DECIDE PROMPTLY THE QUESTION OF REMOVABILITY, IT IS BETTER
PRACTICE TO AWAIT THAT DECISION (CHESAPEAKE & OHIO RY. CO. V. MCCABE,
213 U.S. 207; BALTIMORE & OHIO R. CO. V. KOONTZ, SUPRA), BUT WE CANNOT
SAY THAT FAILURE TO DO SO IS A DENIAL OF A FEDERAL RIGHT IF THE CAUSE
WAS NOT REMOVABLE. 

ACCORDINGLY, THE JUDGMENT OF THE MICHIGAN SUPREME COURT IS AFFIRMED. 

FN1  FELTENSTEIN AND ANOTHER BROUGHT SUIT IN A STATE COURT AGAINST
YANKAUS ON OCTOBER 11, 1915.  ON OCTOBER 16, YANKAUS FILED A PETITION
FOR REMOVAL IN THE STATE COURT, AND ON OCTOBER 20 FILED COPIES OF ALL
PAPERS ON RECORD IN THE STATE COURT AND AN ANSWER IN THE FEDERAL
COURT.  ON THE LATTER DATE THE STATE COURT DENIED HIS PETITION FOR
REMOVAL, AND ON OCTOBER 26 ENTERED JUDGMENT AGAINST HIM.  ON NOVEMBER
15, THE FEDERAL COURT REMANDED THE CAUSE, AND TWO WEEKS LATER THE STATE
COURT DENIED A MOTION TO VACATE THE JUDGMENT.  THE STATE APPELLATE
COURT SUBSEQUENTLY DISMISSED AN APPEAL. 

FN2  IT IS NOT EVIDENT FROM THE OPINION THAT THE JUDGMENT WAS TAKEN
BY DEFAULT, BUT THIS FACT CLEARLY APPEARS IN THE RECORD FILED IN THIS
COURT.  RECORD, P. 7. 

FN3  SEE PEARSON V. ZACHER, 177 MINN. 182; 225 N.W. 9; ROBERTS V.
CHICAGO, ST. P., M. & O. RY. CO., 48 MINN. 521; 51 N.W. 478(AFFIRMED,
164 U.S. 703); TIERNEY V. HELVETIA SWISS FIRE INS. CO., 126 APP. DIV.
446; 110 N.Y.S. 613; STATE V. AMERICAN SURETY CO., 26 IDAHO 652; 145 P.
1097. 

COMPARE IOWA CENTRAL RY. CO. V. BACON, 236 U.S. 305; MADISONVILLE
TRACTION CO. V. ST. BERNARD MINING CO., 196 U.S. 239; STONE V. SOUTH
CAROLINA, 117 U.S. 430; PHOENIX INS. CO. V. PECHNER, 95 U.S. 183;
WINCHELL V. CONEY, 54 CONN. 24; 5 A. 354; TOMSON V. TRAVELING MEN'S
ASSN., 78 NEB. 400; 110 N.W. 997; GOLDEN V. NORTHERN PACIFIC RY CO., 39
MONT. 435; 104 P. 549; DAHLONEGA CO. V. HALL MDSE.  CO., 88 GA. 339; 14
S.E. 473; BISHOP-BABCOCK SALES CO. V. LACKMAN, 4 S.W.2D 109. 

FN4  SEE CENTAUR MOTOR CO. V. ECCLESTON, 264 F. 852; CITY OF
MONTGOMERY V. POSTAL TELEGRAPH CO., 218 F. 471; DONOVAN V. WELLS, FARGO
CO., 169 F. 363; MURPHY V. PAYETTE ALLUVIAL GOLD CO., 98 F. 321;
JOHNSON V. WELLS, FARGO CO., 91 F. 1; SHEPHERD V. BRADSTREET CO., 65 F.
142. 
..END :





JUST V. CHAMBERS, 312 U.S. 383 


NO. 373.  ARGUED FEBRUARY 5, 6, 1941.  - DECIDED MARCH 3, 1941.  - 113
F.2D 105, REVERSED. 


1.  THE COURT ACCEPTS CONCURRENT FINDINGS BY TWO COURTS BELOW ON
MATTERS OF FACT.  P. 385. 

2.  BY THE LAW OF FLORIDA, A CAUSE OF ACTION FOR PERSONAL INJURY DUE
TO ANOTHER'S NEGLIGENCE SURVIVES THE DEATH OF THE TORT-FEASOR.  P.
385. 

3.  FEDERAL STATUTORY PROVISION FOR LIMITATION OF LIABILITY EMBRACES
CLAIMS FOR DAMAGES AGAINST THE VESSEL-OWNER FOR PERSONAL INJURIES
SUFFERED ON BOARD THROUGH HIS NEGLIGENCE.  P. 385. 

4.  WHEN THE JURISDICTION OF THE COURT OF ADMIRALTY HAS ATTACHED
THROUGH A PETITION FOR LIMITATION, THE JURISDICTION TO DETERMINE CLAIMS
IS NOT LOST MERELY BECAUSE THE SHIPOWNER FAILS TO ESTABLISH HIS RIGHT
TO LIMITATION.  CLAIMANTS WILL BE FURNISHED A COMPLETE REMEDY BY
DISTRIBUTION OF THE RES AND BY JUDGMENTS IN PERSONAM FOR DEFICIENCIES
AGAINST THE OWNER.  P. 386. 

5.  A CAUSE OF ACTION AGAINST THE OWNER OF THE VESSEL FOR PERSONAL
INJURIES SUFFERED ABOARD ON NAVIGABLE WATERS WITHIN THE BOUNDARY OF A
STATE, AND WHICH UNDER THE STATE LAW SURVIVES HIS DEATH, SURVIVES ALSO
IN ADMIRALTY AGAINST HIS ESTATE AND AGAINST THE VESSEL.  P. 391. 

WITH RESPECT TO MARITIME TORTS, A STATE MAY MODIFY OR SUPPLEMENT THE
MARITIME LAW BY CREATING LIABILITY WHICH A COURT OF ADMIRALTY WILL
RECOGNIZE AND ENFORCE WHEN THE STATE ACTION IS NOT HOSTILE TO THE
CHARACTERISTIC FEATURES OF THE MARITIME LAW OR INCONSISTENT WITH
FEDERAL LEGISLATION. 

JUST ET AL. V. CHAMBERS, EXECUTRIX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 311 U.S. 634, TO REVIEW A DECREE WHICH IN PART AFFIRMED
AND IN PART REVERSED AN INTERLOCUTORY DECREE OF THE DISTRICT COURT
SITTING IN ADMIRALTY IN A PROCEEDING BEGUN BY A PETITION FOR LIMITATION
OF LIABILITY.  THE DISTRICT COURT HAD HELD THAT CERTAIN CLAIMS FOR
PERSONAL INJURIES SUFFERED THROUGH THE NEGLIGENCE OF THE VESSEL-OWNER,
WHO AFTERWARDS HAD DIED, WERE ENFORCIBLE AGAINST HIS ESTATE AS WELL AS
THE VESSEL.  THE CIRCUIT COURT OF APPEALS DECIDED THAT THE LIABILITY IN
PERSONAM DID NOT SURVIVE THE DEATH AND THAT RECOVERY WAS THEREFORE
LIMITED TO THE VALUE OF THE SHIP. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, AS EXECUTRIX OF THE ESTATE OF HENRY C. YEISER, JR., OWNER
OF THE YACHT "FRIENDSHIP II," BROUGHT THIS PROCEEDING IN ADMIRALTY FOR
LIMITATION OF LIABILITY.  46 U.S.C. 183.  PETITIONERS PRESENTED CLAIMS
FOR DAMAGES FOR PERSONAL INJURIES DUE TO CARBON MONOXIDE GAS POISONING
ALLEGED TO HAVE OCCURRED ON BOARD THE VESSEL.  IT WAS CRUISING AT THE
TIME WITHIN THE TERRITORIAL LIMITS OF THE STATE OF FLORIDA AND
PETITIONERS WERE GUESTS OF THE OWNER.  ON THE OWNER'S DEATH,
PETITIONERS' CLAIMS WERE FILED AGAINST HIS ESTATE. 

UPON THE FACTS THE DISTRICT COURT FOUND LIABILITY TO THE CLAIMANTS
AND DENIED LIMITATION UPON THE GROUND OF NEGLECT OF DUTY BY THE OWNER. 
THE COURT HELD THAT UNDER A STATUTE OF FLORIDA THE CLAIMANTS' CAUSES OF
ACTION SURVIVED THE OWNER'S DEATH. 

UPON APPEAL FROM THE INTERLOCUTORY DECREE (28 U.S.C. 227) THE CIRCUIT
COURT OF APPEALS RULED THAT ALL THE FINDINGS OF FACT MADE BY THE
DISTRICT JUDGE WERE SUPPORTED BY THE EVIDENCE; THAT, AS THE INJURIES
THUS PROVED WERE NOT OCCASIONED WITHOUT THE KNOWLEDGE OR PRIVITY OF THE
SHIPOWNER, RESPONDENT COULD NOT HAVE LIMITATION; THAT AS THE SHIP WAS
AT FAULT AS WELL AS THE OWNER THE CAUSES OF ACTION IN REM SURVIVED THE
OWNER'S DEATH AND THE CLAIMANTS ON THAT GROUND MIGHT RECOVER UP TO THE
VALUE OF THE SHIP, BUT THAT UNDER THE GOVERNING PRINCIPLES OF ADMIRALTY
LAW THE PERSONAL LIABILITY OF THE OWNER DID NOT SURVIVE.  113 F.2D
105.  BECAUSE OF THE IMPORTANCE OF THE QUESTION AS TO THE
ENFORCEABILITY IN ADMIRALTY OF THE CLAIMS FOR PERSONAL INJURIES AGAINST
THE ESTATE OF THE DECEASED TORTFEASOR, WE GRANTED CERTIORARI, 311 U.S.
634. 

IN SUPPORT OF THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS,
RESPONDENT ASKS US TO REVIEW THE EVIDENCE WITH RESPECT TO THE CAUSE OF
THE CLAIMANTS' INJURIES AND THE BREACH OF DUTY BY THE SHIPOWNER,
CONTENDING THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE FINDINGS. 
APPLYING THE WELL-ESTABLISHED RULE, WE ACCEPT THE CONCURRENT FINDINGS
OF THE COURTS BELOW UPON THESE MATTERS (TEXAS & NEW ORLEANS R. CO. V.
RAILWAY CLERKS, 281 U.S. 548, 558) AND WE CONFINE OUR ATTENTION TO THE
QUESTION OF THE SURVIVAL OF THE CAUSES OF ACTION. 

THERE IS NO QUESTION THAT THERE WAS A MARITIME TORT.  THERE IS ALSO
NO QUESTION THAT THE INJURY OCCURRED WITHIN THE TERRITORIAL LIMITS OF
FLORIDA AND THAT UNDER THE LOCAL STATUTE, AS CONSTRUED BY THE SUPREME
COURT OF THE STATE, THE CAUSES OF ACTION SURVIVED AGAINST THE
WRONGDOER'S ESTATE.  THIS WAS RECOGNIZED BY THE CIRCUIT COURT OF
APPEALS.  113 F.2D P. 107.  COMPILED GENERAL LAWS OF FLORIDA (1927),
SEC. 4211; WALLER V. FIRST SAVINGS & TRUST CO., 103 FLA. 1025, 1047,
1049; 138 SO. 780; GRANAT V. BISCAYNE TRUST CO., 109 FLA. 485, 488; 147
SO. 850; STATE EX REL. WOLFE CONSTRUCTION CO. V. PARKS, 129 FLA. 50,
56, 57; 175 SO. 786. 

THE STATUTORY PROVISION FOR LIMITATION OF LIABILITY, ENACTED IN THE
LIGHT OF THE MARITIME LAW OF MODERN EUROPE AND OF LEGISLATION IN
ENGLAND, HAS BEEN BROADLY AND LIBERALLY CONSTRUED IN ORDER TO ACHIEVE
ITS PURPOSE TO ENCOURAGE INVESTMENTS IN SHIPBUILDING AND TO AFFORD AN
OPPORTUNITY FOR THE DETERMINATION OF CLAIMS AGAINST THE VESSEL AND ITS
OWNER.  NORWICH COMPANY V. WRIGHT, 13 WALL.  104, 121.  IT LOOKS TO A
COMPLETE DISPOSITION OF WHAT MAY BE A "MANY CORNERED CONTROVERSY," THUS
APPLYING TO PROCEEDINGS IN REM AGAINST THE SHIP AS WELL AS TO
PROCEEDINGS IN PERSONAM AGAINST THE OWNER, THE LIMITATION EXTENDING TO
THE OWNER'S PROPERTY AS WELL AS TO HIS PERSON.  THE CITY OF NORWICH,
118 U.S. 468, 503; HARTFORD ACCIDENT CO. V. SOUTHERN PACIFIC CO., 273
U.S. 207, 216.  IT APPLIES TO CASES OF PERSONAL INJURY AND DEATH AS
WELL AS TO CASES OF INJURY TO PROPERTY.  BUTLER V. BOSTON STEAMSHIP
CO., 130 U.S. 527, 552; THE ALBERT DUMOIS, 177 U.S. 240, 259.  THE
LIMITATION EXTENDS TO TORT CLAIMS EVEN WHEN THE TORT IS NON-MARITIME. 
RICHARDSON V. HARMON, 222 U.S. 96. 

WHEN THE JURISDICTION OF THE COURT IN ADMIRALTY HAS ATTACHED THROUGH
A PETITION FOR LIMITATION, THE JURISDICTION TO DETERMINE CLAIMS IS NOT
LOST MERELY BECAUSE THE SHIPOWNER FAILS TO ESTABLISH HIS RIGHT TO
LIMITATION.  WE HAVE SAID THAT THE COURT OF ADMIRALTY IN SUCH A
PROCEEDING ACQUIRES THE RIGHT TO MARSHAL ALL CLAIMS, WHETHER OF
STRICTLY ADMIRALTY ORIGIN OR NOT, AND TO GIVE EFFECT TO THEM BY THE
APPORTIONMENT OF THE RES AND BY JUDGMENT IN PERSONAM AGAINST THE OWNER,
SO FAR AS THE COURT MAY DECREE.  AND THAT, IF CONGRESS HAS THIS
CONSTITUTIONAL POWER, IT NECESSARILY FOLLOWS, AS INCIDENTAL TO THAT
POWER, THAT IT MAY FURNISH A COMPLETE REMEDY FOR THE SATISFACTION OF
THOSE CLAIMS BY DISTRIBUTION OF THE RES AND BY JUDGMENTS IN PERSONAM
FOR DEFICIENCIES AGAINST THE OWNER, IF HE IS NOT RELEASED BY VIRTUE OF
THE STATUTE.  HARTFORD ACCIDENT CO. V. SOUTHERN PACIFIC CO., SUPRA, P.
217.  WHILE IT IS RECOGNIZED THAT THE EQUITABLE RULE FOR RETAINING
JURISDICTION IN ORDER COMPLETELY TO DISPOSE OF A CAUSE DOES NOT USUALLY
APPLY IN ADMIRALTY, THE PROCEEDING FOR LIMITATION OF LIABILITY IS
DIFFERENT FROM THE ORDINARY ADMIRALTY SUIT AND, BY REASON OF THE
STATUTE AND RULES GOVERNING IT, THE COURT OF ADMIRALTY HAS AUTHORITY TO
GRANT AN INJUNCTION AND THUS BRING LITIGANTS INTO THE ADMIRALTY COURT. 
THERE IS THUS JURISDICTION TO FULFILL THE OBLIGATION TO DO EQUITY TO
CLAIMANTS BY FURNISHING THEM A COMPLETE REMEDY ALTHOUGH LIMITATION IS
REFUSED.  ID., P. 218. 

BUT RESPONDENT CONTENDS THAT TO PERMIT RECOVERY UPON THE CLAIMS HERE
IN QUESTION WOULD DO VIOLENCE TO A PRECEPT OF THE ADMIRALTY LAW THAT
CAUSES OF ACTION FOR PERSONAL INJURY DIE WITH THE PERSON.  RESPONDENT
ARGUES THAT THE SOURCE OF THIS PRINCIPLE WAS NOT THE COMMON LAW  FN1
BUT THE CIVIL LAW  FN2  AND THAT IT SHOULD BE REGARDED AS AN INTEGRAL
PART OF THE MARITIME LAW, CONSIDERED AS AN INDEPENDENT BODY OF LAW, AND
HENCE CAN BE CHANGED ONLY BY CONGRESS, WHICH HAS NOT ACTED.  FN3 

WHETHER THE PARTICULAR RULE NOW INVOKED IS SO SECURELY BASED IN OUR
MARITIME LAW  FN4  THAT A DIFFERENT ONE CAN BE ESTABLISHED ONLY BY
LEGISLATION AND NOT BY THE EXERCISE OF THE JUDICIAL POWER RESPONDING TO
PRESENT STANDARDS OF JUSTICE,  FN5  WE NEED NOT NOW CONSIDER.  FOR,
WHILE THE INJURY OCCURRED ON NAVIGABLE WATERS, THESE WERE WITHIN THE
LIMITS OF FLORIDA WHOSE LEGISLATION PROVIDED THAT THE CAUSE OF ACTION
SHOULD SURVIVE.  AND IT IS NOT A PRINCIPLE OF OUR MARITIME LAW THAT A
COURT OF ADMIRALTY MUST INVARIABLY REFUSE TO RECOGNIZE AND ENFORCE A
LIABILITY WHICH THE STATE HAS ESTABLISHED IN DEALING WITH A MARITIME
SUBJECT.  ON THE CONTRARY, THERE ARE NUMEROUS INSTANCES IN WHICH THE
GENERAL MARITIME LAW HAS BEEN MODIFIED OR SUPPLEMENTED BY STATE ACTION,
AS E.G. IN CREATING LIENS FOR REPAIRS OR SUPPLIES FURNISHED TO A VESSEL
IN HER HOME PORT.  THE LOTTAWANNA, 21 WALL.  558, 580; THE J. E.
RUMBELL, 148 U.S. 1, 12.  FN6  WITH RESPECT TO MARITIME TORTS WE HAVE
HELD THAT THE STATE MAY MODIFY OR SUPPLEMENT THE MARITIME LAW BY
CREATING LIABILITY WHICH A COURT OF ADMIRALTY WILL RECOGNIZE AND
ENFORCE WHEN THE STATE ACTION IS NOT HOSTILE TO THE CHARACTERISTIC
FEATURES OF THE MARITIME LAW OR INCONSISTENT WITH FEDERAL LEGISLATION. 
THE CITY OF NORWALK, 55 F. 98; WESTERN FUEL CO. V. GARCIA, 257 U.S.
233, 242; GREAT LAKES DREDGE CO. V. KIEREJEWSKI, 261 U.S. 479;
VANCOUVER STEAMSHIP CO. V. RICE, 288 U.S. 445.  FN7 

THIS IS ILLUSTRATED, IN THE CASES CITED, BY THE EFFECT GIVEN IN
ADMIRALTY TO STATE LEGISLATION CREATING LIABILITY FOR WRONGFUL DEATH. 
THE LEADING CONTINENTAL STATES OF EUROPE, WHOSE JURISPRUDENCE WAS
DEVELOPED FROM THE CIVIL LAW, HAVE GIVEN A REMEDY IN SUCH A CASE,  FN8
BUT A RIGHT OF ACTION WAS DENIED BY THE COMMON LAW AND LIKEWISE BY THE
ADMIRALTY IN ENGLAND.  AND THIS COURT, UPON AN ELABORATE REVIEW OF THE
DECISIONS, CONCLUDED THAT NO SUIT FOR WRONGFUL DEATH WOULD LIE "IN THE
COURTS OF THE UNITED STATES UNDER THE GENERAL MARITIME LAW."  THE
HARRISBURG, 119 U.S. 199, 213.  SEE, ALSO, THE CORSAIR, 145 U.S. 335,
344.  THE ABSENCE OF A FEDERAL OR STATE STATUTE GIVING A RIGHT OF
ACTION WAS EMPHASIZED.  BUT WHEN A STATE, ACTING WITHIN ITS PROVINCE,
HAS CREATED LIABILITY FOR WRONGFUL DEATH, THE ADMIRALTY WILL ENFORCE
IT. 

THERE WAS A CAREFUL AND COMPREHENSIVE EXPOSITION OF THIS SUBJECT BY
JUDGE ADDISON BROWN IN THE CITY OF NORWALK, SUPRA, DECIDED SHORTLY
AFTER THE CORSAIR, SUPRA.  HE OBSERVED THAT IF IT WAS NOT WITHIN THE
POWER OF THE STATE TO CREATE SUCH A LIABILITY IN A MARITIME CASE, THE
STATUTES OF THE MAJORITY OF THE STATES WOULD BE VOID SO FAR AS THEY
RELATED TO DEATHS IN CASES ARISING ON NAVIGABLE WATERS.  BUT THE
VALIDITY OF JUDGMENTS IN THE STATE COURTS GIVING DAMAGES IN SUCH CASES,
AND THE VALIDITY OF THE STATUTES ON WHICH THEY RESTED, HAD BEEN
SUSTAINED.  STEAMBOAT COMPANY V. CHASE, 16 WALL.  522; SHERLOCK V.
ALLING, 93 U.S. 99.  THE GROUNDS OF OBJECTION TO THE ADMIRALTY
JURISDICTION IN ENFORCING LIABILITY FOR WRONGFUL DEATH WERE SIMILAR TO
THOSE URGED HERE; THAT IS, THAT THE CONSTITUTION PRESUPPOSES A BODY OF
MARITIME LAW, THAT THIS LAW, AS A MATTER OF INTERSTATE AND
INTERNATIONAL CONCERN, REQUIRES HARMONY IN ITS ADMINISTRATION AND
CANNOT BE SUBJECT TO DEFEAT OR IMPAIRMENT BY THE DIVERSE LEGISLATION OF
THE STATES, AND HENCE THAT CONGRESS ALONE CAN MAKE ANY NEEDED CHANGES
IN THE GENERAL RULES OF THE MARITIME LAW.  BUT THESE CONTENTIONS PROVED
UNAVAILING AND THE PRINCIPLE WAS MAINTAINED THAT A STATE, IN THE
EXERCISE OF ITS POLICE POWER, MAY ESTABLISH RULES APPLICABLE ON LAND
AND WATER WITHIN ITS LIMITS, EVEN THOUGH THESE RULES INCIDENTALLY
AFFECT MARITIME AFFAIRS, PROVIDED THAT THE STATE ACTION "DOES NOT
CONTRAVENE ANY ACTS OF CONGRESS, NOR WORK ANY PREJUDICE TO THE
CHARACTERISTIC FEATURES OF THE MARITIME LAW, NOR INTERFERE WITH ITS
PROPER HARMONY AND UNIFORMITY IN ITS INTERNATIONAL AND INTERSTATE
RELATIONS."  IT WAS DECIDED THAT THE STATE LEGISLATION ENCOUNTERED NONE
OF THESE OBJECTIONS.  THE MANY INSTANCES IN WHICH STATE ACTION HAD
CREATED NEW RIGHTS, RECOGNIZED AND ENFORCED IN ADMIRALTY, WERE SET
FORTH IN THE CITY OF NORWALK, AND REFERENCE WAS ALSO MADE TO THE
NUMEROUS LOCAL REGULATIONS UNDER STATE AUTHORITY CONCERNING THE
NAVIGATION OF RIVERS AND HARBORS.  THERE WAS THE FURTHER PERTINENT
OBSERVATION THAT THE MARITIME LAW WAS NOT A COMPLETE AND PERFECT SYSTEM
FN9  AND THAT IN ALL MARITIME COUNTRIES THERE IS A CONSIDERABLE BODY
OF MUNICIPAL LAW THAT UNDERLIES THE MARITIME LAW AS THE BASIS OF ITS
ADMINISTRATION.  THESE VIEWS FIND ABUNDANT SUPPORT IN THE HISTORY OF
THE MARITIME LAW AND IN THE DECISIONS OF THIS COURT. 

IN THE HAMILTON, 207 U.S. 398, THERE WAS A PROCEEDING IN ADMIRALTY
FOR LIMITATION OF LIABILITY IN RESPECT OF A COLLISION ON THE HIGH SEAS,
BOTH VESSELS BELONGING TO CORPORATIONS OF THE STATE OF DELAWARE.  THE
COURT HELD THAT A DELAWARE STATUTE GIVING DAMAGES FOR WRONGFUL DEATH
WAS A VALID EXERCISE OF THE LEGISLATIVE POWER, AND THAT THERE WAS THUS
CREATED A PERSONAL LIABILITY OF THE OWNER TO THE CLAIMANTS WHICH
ADMIRALTY WOULD RESPECT.  MOREOVER, AS THE CASE WAS ONE FOR LIMITATION
OF LIABILITY, THE COURT NOTED THAT THE FEDERAL STATUTE HAD ENABLED THE
OWNER TO TRANSFER LIABILITY TO A FUND AND TO THE EXCLUSIVE JURISDICTION
OF ADMIRALTY AND HENCE "ALL CLAIMS TO WHICH THE ADMIRALTY DOES NOT DENY
EXISTENCE" MUST BE RECOGNIZED.  IN LA BOURGOGNE, 210 U.S. 95, 139, ALSO
A LIMITED LIABILITY PROCEEDING, THE REASONING OF THE HAMILTON WAS
FOLLOWED IN THE RULING THAT, AS THE CASE WAS ONE OF A FRENCH VESSEL AND
THE LAW OF FRANCE GAVE A RIGHT OF ACTION FOR WRONGFUL DEATH, OUR COURT
OF ADMIRALTY WOULD ENFORCE THE CLAIM. 

FINALLY, IN WESTERN FUEL CO. V. GARCIA, SUPRA, THE COURT DEEMED IT TO
BE THE LOGICAL RESULT OF PRIOR DECISIONS 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."  THE LIBEL THERE
FAILED SOLELY BECAUSE SUIT WAS BARRED BY THE STATE STATUTE OF
LIMITATIONS.  AND THE CRITERION APPLIED IN DETERMINING THE VALIDITY AND
EFFECT OF THE STATE LEGISLATION WAS SET FORTH IN SUBSTANTIALLY THE SAME
TERMS AS THOSE STATED IN THE CITY OF NORWALK, ABOVE QUOTED.  WESTERN
FUEL CO. V. GARCIA, SUPRA, P. 242. 

THIS CRITERION IS MANIFESTLY NOT LIMITED TO CASES OF WRONGFUL DEATH. 
IT IS A BROAD RECOGNITION OF THE AUTHORITY OF THE STATES TO CREATE
RIGHTS AND LIABILITIES WITH RESPECT TO CONDUCT WITHIN THEIR BORDERS,
WHEN THE STATE ACTION DOES NOT RUN COUNTER TO FEDERAL LAWS OR THE
ESSENTIAL FEATURES OF AN EXCLUSIVE FEDERAL JURISDICTION.  SEE MINNESOTA
RATE CASES, 230 U.S. 352, 402-410.  WE SEE NO REASON WHY, UNDER THIS
TEST, THE FLORIDA RULE IN PROVIDING FOR THE SURVIVAL OF A CAUSE OF
ACTION AGAINST A DECEASED TORTFEASOR FOR INJURIES OCCURRING ON
NAVIGABLE WATERS WITHIN THE LIMITS OF THE STATE SHOULD NOT BE APPLIED. 
RESPONDENT ARGUES THAT, IN RELATION TO WRONGFUL DEATH, THE MARITIME
LAW HAD LEFT THE MATTER "UNTOUCHED" (THE HARRISBURG, SUPRA) AND THUS
THE STATE LAW WAS ADMITTED TO SUPPLEMENT THE MARITIME LAW, WHILE IN THE
INSTANT CASE THERE IS A POSITIVE RULE OF ADMIRALTY AGAINST THE SURVIVAL
OF THE CAUSE OF ACTION.  THAT IS, IN THE ONE CASE, THERE IS SAID TO BE
A "VOID" IN THE MARITIME LAW, WHICH THE STATE LAW MAY FILL, WHILE IN
THE OTHER THERE IS AN ATTEMPT TO MODIFY AN EXISTING PRINCIPLE.  THIS IS
A SUBTLETY WHICH WE THINK DOES NOT MERIT JUDICIAL ADOPTION.  THE
ADMIRALTY RULE IN THE CASE OF WRONGFUL DEATH CAN BE STATED EITHER
NEGATIVELY OR POSITIVELY, AND THE RESULT DOES NOT TURN ON THE MERE MODE
OF EXPRESSION.  THE PITH OF THE MATTER IS THAT THE MARITIME LAW, AS WE
CONCEIVED IT, DID NOT PERMIT RECOVERY, AND IN THE SAME SENSE, IN
SUBSTANCE, THE MARITIME LAW DENIED THE SURVIVAL OF CAUSES OF ACTION
AGAINST A DECEASED TORTFEASOR.  THE MARITIME LAW WOULD BE SUPPLEMENTED
OR MODIFIED BY STATE LEGISLATION IN THE ONE CASE AS TRULY AS IN THE
OTHER, AND EITHER SUPPLEMENT OR MODIFICATION IS PERMISSIBLE IN
ACCORDANCE WITH THE ACCEPTED CRITERION. 

OUR DECISIONS IN THE WRONGFUL DEATH CASES ALSO MEET THE FURTHER
ARGUMENT WHICH IS ADDRESSED TO LACK OF UNIFORMITY.  FOR WHATEVER LACK
OF UNIFORMITY THERE MAY BE IN GIVING EFFECT TO THE STATE RULE AS TO
SURVIVAL IS EQUALLY PRESENT WHEN THE STATE RULE IS APPLIED TO WRONGFUL
DEATH, OR, FOR THAT MATTER, IN ANY CASE WHEN STATE LEGISLATION IS
UPHELD IN ITS DEALING WITH LOCAL CONCERNS IN THE ABSENCE OF FEDERAL
LEGISLATION.  UNIFORMITY IS REQUIRED ONLY WHEN THE ESSENTIAL FEATURES
OF AN EXCLUSIVE FEDERAL JURISDICTION ARE INVOLVED.  BUT AS ADMIRALTY
TAKES COGNIZANCE OF MARITIME TORTS, THERE IS NO REPUGNANCY TO ITS
CHARACTERISTIC FEATURES EITHER IN PERMITTING RECOVERY FOR WRONGFUL
DEATH OR IN ALLOWING COMPENSATION FOR A WRONG TO THE LIVING TO BE
OBTAINED FROM A TORTFEASOR'S ESTATE.  A FORTIORI, IN APPLYING THE
ESTABLISHED RULES AS TO PROOF OF CLAIMS IN LIMITATION PROCEEDINGS,
PETITIONERS, BROUGHT INTO ADMIRALTY, WERE ENTITLED TO HAVE THEIR CLAIMS
AGAINST THE SHIPOWNER'S ESTATE HEARD AND DETERMINED. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  AS TO THE RULE IN THE COMMON LAW, SEE HOLDSWORTH'S HISTORY OF
ENGLISH LAW, VOL. 3, PP. 576-578. 

FN2  INST.  JUST.  LIB. IV, TIT. XII, COOPER, P. 364, SANDARS, P.
476. 

FN3  THE "DEATH ON THE HIGH SEAS" ACT, 46 U.S.C. 761-768, IS NOT
APPLICABLE, AS IT OCCUPIES A LIMITED FIELD AND EVEN AS TO WRONGFUL
DEATH PROVIDES THAT THE PROVISIONS OF STATE STATUTES SHALL NOT BE
AFFECTED. 

FN4  THE RULE OF THE NON-SURVIVAL OF A CAUSE OF ACTION AGAINST A
DECEASED TORTFEASOR HAS BUT A SLENDER BASIS IN ADMIRALTY CASES IN THIS
COUNTRY.  SEE CRAPO V. ALLEN, 6 FED. CAS. (NO. 3360) 763; CUTTING V.
SEABURY, 1 SPRAGUE 522, 525; IN RE STATLER, 31 F.2D 767, 36 F.2D 1021;
CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367, 371.  THE PRECISE
QUESTION HERE PRESENTED DOES NOT SEEM TO HAVE BEEN AUTHORITATIVELY
DETERMINED. 

FN5  SEE THE LOTTAWANNA, 21 WALL.  558, 572-574. 

FN6  MANY OTHER INSTANCES ARE LISTED IN THE CITY OF NORWALK, 55 F.
98, 106, 107. 

FN7  SEE, ALSO, GRANT SMITH-PORTER CO. V. ROHDE, 257 U.S. 469, 477,
478; MILLERS' UNDERWRITERS V. BRAUD, 270 U.S. 59, 64.  COMPARE SOUTHERN
PACIFIC CO. V. JENSEN, 244 U.S. 205, 216, 220; CHELENTIS V. LUCKENBACH
S.S. CO., 247 U.S. 372; KNICKERBOCKER ICE CO. V. STEWART, 253 U.S. 149;
ROBINS DRY DOCK CO. V. DAHL, 266 U.S. 449. 

FN8  HUGHES ON ADMIRALTY, CHAP. X, SECS. 108-110, PP. 224-226.  SEE,
ALSO, THE HARRISBURG, 119 U.S. 199, 212, 213. 

FN9  SEE THE BLACKHEATH, 195 U.S. 361, 365. 
..END :











HELVERING V. HUTCHINGS, 312 U.S. 393 


NO 419.  ARGUED JANUARY 8, 1941.  - DECIDED MARCH 3, 1941.  - 111 F.2D
229, AFFIRMED. 


1.  IN THE COMPUTATION OF THE TAX LAID UPON "NET GIFTS" MADE DURING
THE CALENDAR YEAR, SEC. 504(B) OF THE REVENUE ACT OF 1932 PROVIDES THAT
"IN THE CASE OF GIFTS (OTHER THAN OF FUTURE INTERESTS IN PROPERTY) MADE
TO ANY PERSON BY THE DONOR DURING THE CALENDAR YEAR THE FIRST $5,000 OF
SUCH GIFTS  ...  SHALL NOT  ...  BE INCLUDED IN THE TOTAL AMOUNT OF
GIFTS MADE DURING SUCH YEAR."  HELD THAT WHERE THE DONOR CONVEYED
PROPERTY IN TRUST FOR THE BENEFIT OF NUMEROUS BENEFICIARIES HE WAS
ENTITLED TO SEPARATE EXEMPTIONS OR EXCLUSIONS OF $5,000 FOR EACH
BENEFICIARY.  P. 395. 

THE QUESTION WHETHER THE GIFTS TO THE BENEFICIARIES WERE "FUTURE
INTERESTS" WITHIN THE MEANING OF THE SECTION IS NOT DECIDED, NOT HAVING
BEEN PRESENTED BY THE PETITION FOR CERTIORARI, BUT IS LEFT OPEN FOR
CONSIDERATION BY THE BOARD OF TAX APPEALS. 

2.  IN COMMON UNDERSTANDING AND USAGE A GIFT IS MADE TO HIM UPON WHOM
THE DONOR BESTOWS THE BENEFIT OF HIS DONATION.  P. 396. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. HUTCHINGS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 311 U.S. 638, TO REVIEW A DECREE REVERSING A DECISION OF
THE BOARD OF TAX APPEALS, 40 B.T.A. 27, WHICH SUSTAINED AN ADDITIONAL
ASSESSMENT OF GIFT TAXES. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE PETITION FOR CERTIORARI PRESENTS THE SINGLE QUESTION WHETHER
UNDER SEC. 504(B) OF THE REVENUE ACT OF 1932, 47 STAT. 169, 247, THE
DONOR OF PROPERTY IN TRUST FOR THE BENEFIT OF NUMEROUS BENEFICIARIES IS
ENTITLED TO A SINGLE GIFT TAX EXEMPTION OR EXCLUSION TO THE EXTENT OF
THE FIRST $5,000 OR TO SEPARATE EXEMPTIONS OF $5,000 FOR EACH
BENEFICIARY. 

NET AMOUNT OF THE TRANSFERS "BY ANY INDIVIDUAL  ...  OF PROPERTY BY
GIFT."  BY SEC. 501(B) THE TAX APPLIES "WHETHER THE TRANSFER IS IN
TRUST OR OTHERWISE" AND "WHETHER THE GIFT IS DIRECT OR INDIRECT."  IN
THE COMPUTATION OF THE TAX LAID UPON "NET GIFTS" MADE DURING THE
CALENDAR YEAR, SEC. 504(B) PROVIDES "IN THE CASE OF GIFTS (OTHER THAN
OF FUTURE INTERESTS IN PROPERTY) MADE TO ANY PERSON BY THE DONOR DURING
THE CALENDAR YEAR, THE FIRST $5,000 OF SUCH GIFTS  ...  SHALL NOT  ...
BE INCLUDED IN THE TOTAL AMOUNT OF GIFTS MADE DURING SUCH YEAR."  AND
SEC. 1111, DEFINING GENERALLY TERMS USED THROUGHOUT THE REVENUE ACT,
PROVIDES:  "(A)  WHEN USED IN THIS ACT - (1) THE TERM 'PERSON' MEANS AN
INDIVIDUAL, A TRUST OR ESTATE, A PARTNERSHIP, OR A CORPORATION." 

ON DECEMBER 30, 1935, THE TAXPAYER EXECUTED A TRUST INDENTURE BY
WHICH SHE TRANSFERRED, IN TRUST, PROPERTY OF A VALUE OF APPROXIMATELY
$145,000 FOR A TERM ENDING IN 1957, UNLESS SOONER TERMINATED BY THE
TRUSTEES, FOR THE BENEFIT OF HER SEVEN CHILDREN, WITH GIFTS OVER OF THE
SHARE OF EACH CHILD IN EVENT OF THE DEATH OF THAT CHILD BEFORE THE
EXPIRATION OF THE TRUST.  THE TAXPAYER IN HER GIFT TAX RETURN FOR 1935
EXCLUDED FROM THE TAXABLE AMOUNT OF HER GIFTS THE SUM OF $5,000 FOR
EACH CHILD OR A TOTAL OF $35,000.  THE COMMISSIONER ALLOWED ONLY A
SINGLE DEDUCTION OF $5,000 IN LIEU OF THE SEVEN $5,000 DEDUCTIONS
CLAIMED BY THE TAXPAYER AND ASSESSED A DEFICIENCY ACCORDINGLY.  THE
BOARD OF TAX APPEALS, TREATING THE TRUST AS THE DONEE RATHER THAN THE
INDIVIDUAL BENEFICIARIES, SUSTAINED THE COMMISSIONER'S ASSESSMENT.  THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED.  111 F.2D 229.  WE
GRANTED CERTIORARI, 311 U.S. 638, TO RESOLVE A CONFLICT OF THE DECISION
BELOW AND OF LIKE DECISIONS IN OTHER CIRCUITS, WELCH V. DAVIDSON, 102
F.2D 100(FIRST CIRCUIT); RHEINSTROM V. COMMISSIONER, 105 F.2D
642(EIGHTH CIRCUIT); MCBRIER V. COMMISSIONER, 108 F.2D 967(THIRD
CIRCUIT), AND IN THE COURT OF CLAIMS, PELZER V. UNITED STATES, 90 CT.
CLS. 614; 31 F.SUPP.  770, WITH THAT OF THE SEVENTH CIRCUIT IN UNITED
STATES V. RYERSON, 114 F.2D 150. 

IT IS NOT DOUBTED THAT SEPARATE GIFTS, OTHER THAN OF FUTURE
INTERESTS, MADE DIRECTLY TO THE DONEES WITHOUT THE INTERVENTION OF A
TRUSTEE ENTITLE THE DONOR UNDER SEC. 504(B), TO ONE $5,000 EXCLUSION
FOR EACH GIFT.  BUT THE GOVERNMENT ARGUES THAT HERE THE TRUSTEE OR THE
TRUST IS THE DONEE AND AS THERE WAS ONLY A SINGLE TRUST THERE CAN BE
ONLY A SINGLE STATUTORY DEDUCTION FROM THE TOTAL AMOUNT OF THE GIFTS. 
AS THE STATUTE ALLOWS ONE DEDUCTION OF THE FIRST $5,000 FOR EACH GIFT
"MADE TO ANY PERSON" BY THE DONOR, THE QUESTION FOR DECISION IS WHETHER
IN THIS CASE OF A GIFT IN TRUST FOR THE BENEFIT OF THE DESIGNATED
BENEFICIARIES THE SINGLE TRUST, OR EACH BENEFICIARY, IS THE "PERSON" TO
WHOM THE GIFT WAS MADE AND FOR WHICH THE DEDUCTION IS ALLOWED. 

THE STATUTORY DEFINITION OF "PERSON" IN SEC. 1111(A)(1) IS OF LITTLE
AID IN ANSWERING THIS QUESTION.  THE DEFINITION IS MADE GENERALLY
APPLICABLE TO ALL OF THE SECTIONS OF THE REVENUE ACT AND WAS CARRIED
FORWARD FROM EARLIER ACTS WHICH CONTAINED NO GIFT TAX PROVISIONS.  SEE
SEC. 2(A)(1) OF THE 1926 REVENUE ACT, 44 STAT. 9; SEC. 701(A)(1) OF THE
1928 REVENUE ACT, 45 STAT. 878.  THE SECTION MEANS NO MORE THAN THAT
THE WORD "PERSON" IN ANY SECTION OF THE ACT IN WHICH IT OCCURS MAY BE
TAKEN AS MEANING "TRUST" RATHER THAN "INDIVIDUAL" AS THE CONTEXT MAY
REQUIRE.  BUT SEC. 504(B), ALLOWING THE DEDUCTION IN THE CASE OF EACH
GIFT TO ANY PERSON WHEN APPLIED TO GIFTS IN TRUST FOR DESIGNATED
BENEFICIARIES, MAY BE READ AS REFERRING EITHER TO A GIFT TO THE TRUST
OR A GIFT TO EACH INDIVIDUAL BENEFICIARY.  HENCE WE MUST READ THE
ITS LEGISLATIVE HISTORY, TO DETERMINE WHETHER, WITHIN ITS MEANING, THE
TRUST OR EACH INDIVIDUAL BENEFICIARY IS THE DONEE TO WHOM THE GIFT IS
MADE. 

THE GIFT TAX PROVISIONS ARE NOT CONCERNED WITH MERE TRANSFERS OF
LEGAL TITLE TO THE TRUSTEE WITHOUT SURRENDER BY THE DONOR OF THE
ECONOMIC BENEFITS OF OWNERSHIP AND HIS CONTROL OVER THEM.  A GIFT TO A
TRUSTEE RESERVING TO THE DONOR THE ECONOMIC BENEFIT OF THE TRUST OR THE
POWER OF ITS DISPOSITION, INVOLVES NO TAXABLE GIFT.  IT IS ONLY UPON
THE SURRENDER BY THE DONOR OF THE BENEFIT OR POWER RESERVED TO HIMSELF
THAT A TAXABLE GIFT OCCURS, ESTATE OF SANFORD V. COMMISSIONER, 308 U.S.
39; RASQUIN V. HUMPHREYS, 308 U.S. 54, AND IT WOULD SEEM TO FOLLOW THAT
THE BENEFICIARY OF THE TRUST TO WHOSE BENEFIT THE SURRENDER INURES,
WHETHER MADE AT THE TIME THE TRUST IS CREATED OR LATER, IS THE "PERSON"
OR "INDIVIDUAL" TO WHOM THE GIFT IS MADE. 

BUT FOR PRESENT PURPOSES IT IS OF MORE IMPORTANCE THAT IN COMMON
UNDERSTANDING AND IN THE COMMON USE OF LANGUAGE A GIFT IS MADE TO HIM
UPON WHOM THE DONOR BESTOWS THE BENEFIT OF HIS DONATION.  ONE DOES NOT
SPEAK OF MAKING A GIFT TO A TRUST RATHER THAN TO HIS CHILDREN WHO ARE
ITS BENEFICIARIES.  THE REPORTS OF THE COMMITTEES OF CONGRESS USED
WORDS IN THEIR NATURAL SENSE AND IN THE SENSE IN WHICH WE MUST TAKE IT
THEY WERE INTENDED TO BE USED IN SEC. 504(B) WHEN, IN DISCUSSING SEC.
501, THEY SPOKE OF THE BENEFICIARY OF A GIFT UPON TRUST AS THE PERSON
TO WHOM THE GIFT IS MADE.  SIMILARLY THEY SPOKE OF GIFTS EFFECTED BY
TRANSFER OF MONEY OR PROPERTY TO ANOTHER AS CONSIDERATION FOR THE
PAYMENT OF MONEY OR OTHER PROPERTY TO A THIRD PERSON AS A GIFT TO THE
THIRD PERSON.  H. REPT. NO. 708, 72D CONG., 1ST SESS., PP. 27-28; S.
REPT. NO. 665, 72D CONG., 1ST SESS., PP. 39-40.  IT IS OF SOME
SIGNIFICANCE ALSO THAT THE DENIAL BY SEC. 504(B) OF THE EXEMPTION IN
THE CASE OF GIFTS OF "FUTURE INTERESTS" HAS LITTLE SCOPE FOR PRACTICAL
OPERATION UNLESS THE GIFTS TO WHICH THE EXEMPTION APPLIES INCLUDE THOSE
GIFTS MADE TO BENEFICIARIES OF A TRUST, SINCE IT IS BY RESORT TO THE
CONVEYANCE IN TRUST THAT MOST FUTURE INTERESTS ARE CREATED. 

MOREOVER, THE VERY PURPOSE OF ALLOWING A GIFT TAX EXEMPTION MEASURED
BY THE NUMBER OF DONEES, WOULD BE DEFEATED IF A DISTINCTION WERE TO BE
TAKEN BETWEEN GIFTS MADE DIRECTLY TO NUMEROUS DONEES AND A GIFT MADE
FOR THEIR BENEFIT BY WAY OF A SINGLE TRUST, AND WE ARE UNABLE TO
DISCERN IN THE STATUTE OR ITS LEGISLATIVE HISTORY ANY PURPOSE TO MAKE
SUCH A DISTINCTION.  WHILE ONE OBJECT OF THE EXEMPTION WAS TO PERMIT
SMALL TAX FREE GIFTS, AND AT THE SAME TIME "TO FIX THE AMOUNT
SUFFICIENTLY LARGE TO COVER IN MOST CASES WEDDING AND CHRISTMAS GIFTS"
WITHOUT THE NECESSITY OF KEEPING ACCOUNTS AND REPORTING THE GIFTS, H.
REPT. SUPRA, 29; S. REPT. SUPRA, 41, NEVERTHELESS THE STATUTE EXTENDED
THE EXEMPTION IN THE SPECIFIED AMOUNT TO ALL GIFTS, WHETHER LARGE OR
SMALL, "MADE TO ANY PERSON." 

IN THE FACE OF AN EXEMPTION THUS MADE BROADLY APPLICABLE TO ALL GIFTS
TO ALL DONEES AND IN THE ABSENCE OF SOME INDICATION OF AN INTENTION TO
DISCRIMINATE BETWEEN GIFTS MADE DIRECTLY TO THE DONEES AND THOSE MADE
INDIRECTLY TO THE BENEFICIARIES OF A TRUST, WE CAN HARDLY ASSUME A
PURPOSE TO FAVOR ONE CLASS OF DONEES OVER THE OTHER OR FIND SUCH A
PURPOSE IN THE WORDS OF THE STATUTORY DEFINITION OF "PERSON" WHICH MAY
INDICATE EITHER THE TRUST OR EACH INDIVIDUAL BENEFICIARY OF THE TRUST
AS THE PERSON TO WHOM THE GIFT IS MADE.  FURTHER, SUCH AN ASSUMPTION
WOULD OPEN THE WAY TO AVOID THE $5,000 LIMITATION UPON THE ALLOWED
EXEMPTION, BY RESORT TO THE SIMPLE EXPEDIENT OF THE CREATION BY A
SINGLE DONOR OF ANY NUMBER OF TRUSTS OF $5,000 EACH FOR THE BENEFIT OF
A SINGLE BENEFICIARY.  FN1  A CONSTRUCTION SO DEPENDENT UPON AN
ARTIFICIAL MEANING OF THE WORDS OF THE STATUTE AND SO OUT OF HARMONY
WITH THE STATUTORY SCHEME AND PURPOSE IS NOT TO BE FAVORED. 

ARTICLE 11 OF 79 TREASURY REGULATIONS (1933 EDITION), ISSUED UNDER
THE 1932 ACT, TREATS EACH GIFT TO THE BENEFICIARY OF A TRUST AS
ENTITLED TO THE BENEFIT OF THE $5,000 DEDUCTION UNLESS THE GIFT IS OF A
"FUTURE INTEREST" WHICH SEC. 504(B) EXCEPTS FROM THE EXEMPTION
OTHERWISE ALLOWED.  SUCH WE THINK IS THE CORRECT CONSTRUCTION OF THE
STATUTE. 

IT IS UNNECESSARY TO CONSIDER HERE THE QUESTION WHETHER A GIFT UPON
TRUST FOR IMPERSONAL, PUBLIC OR CHARITABLE PURPOSES WHERE THERE ARE NO
DESIGNATED OR ASCERTAINABLE FIRST BENEFICIARIES IS A GIFT TO THE TRUST
ENTITLED TO A SINGLE $5,000 DEDUCTION.  SEE HUTCHINGS V. COMMISSIONER,
111 F.2D 229, 231.  NOR DO WE CONSIDER WHETHER THE GIFTS TO THE
BENEFICIARIES HERE ARE OF FUTURE INTERESTS WHICH ARE EXCEPTED FROM THE
BENEFIT OF THE $5,000 DEDUCTION ALLOWED BY SEC. 504(B).  THAT QUESTION
IS NOT PRESENTED BY THE PETITION FOR CERTIORARI.  BUT OUR JUDGMENT WILL
BE WITHOUT PREJUDICE TO CONSIDERATION OF THAT QUESTION BY THE BOARD OF
TAX APPEALS UPON THE REMAND TO IT IF, UNDER THE RULES AND PROCEDURE
GOVERNING PROCEEDINGS BEFORE THE BOARD, THE COMMISSIONER IS FREE TO
PRESENT THE QUESTION THERE.  AFFIRMED. 

FN1  IT WAS THIS CONSTRUCTION OF THE STATUTE BY THE BOARD OF TAX
APPEALS AND BY "SEVERAL OF THE FEDERAL COURTS" WHICH LEAD TO THE
AMENDMENT OF SEC. 504(B) SO AS TO WITHDRAW THE EXEMPTION IN THE CASE OF
EVERY GIFT IN TRUST.  SEE SEC. 505 OF THE 1938 ACT, 52 STAT. 447.  S.
REPT. NO. 1567, 75TH CONG., 3RD SESS., P. 41. 
..END :


















UNITED STATES V. PELZER, 312 U.S. 399 


NO. 393.  ARGUED JANUARY 7, 1941.  - DECIDED MARCH 3, 1941.  - 90 CT.
CLS. 614 - 31 F.SUPP.  770, REVERSED. 


1.  DECIDED IN PART UPON AUTHORITY OF HELVERING V. HUTCHINGS, ANTE, P.
393.  P. 401. 

2.  THE REVENUE LAWS ARE TO BE CONSTRUED IN THE LIGHT OF THEIR
GENERAL PURPOSE TO ESTABLISH A NATIONWIDE SCHEME OF TAXATION UNIFORM IN
ITS APPLICATION.  THEIR PROVISIONS ARE NOT TO BE TAKEN AS SUBJECT TO
STATE CONTROL OR LIMITATION UNLESS THE LANGUAGE OR NECESSARY
IMPLICATION OF THE SECTION INVOLVED MAKES ITS APPLICATION DEPENDENT ON
STATE LAW.  P. 402. 

3.  GIFTS IN TRUST TO GRANDCHILDREN, LIMITED TO THOSE WHO SURVIVE A
TEN-YEAR ACCUMULATION PERIOD AND ATTAIN TWENTY-ONE YEARS OF AGE, ARE
GIFTS OF "FUTURE INTERESTS," FROM WHICH THE $5,000 EXEMPTION IN
COMPUTING GIFT TAXES IS WITHHELD BY SEC. 504(B) OF THE REVENUE ACT OF
1932.  P. 403. 

UNITED STATES V. PELZER. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 311 U.S. 634, TO REVIEW A JUDGMENT OF THE COURT OF CLAIMS
GRANTING A RECOVERY OF MONEY COLLECTED AS GIFT TAXES. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

DECISION IN THIS CASE TURNS ON THE QUESTION WHETHER CERTAIN GIFTS OF
PROPERTY IN TRUST FOR THE BENEFIT OF SEVERAL BENEFICIARIES ARE GIFTS OF
"FUTURE INTERESTS" WHICH, IN THE COMPUTATION OF THE GIFT TAX, ARE, BY
SEC. 504(B) OF THE 1932 REVENUE ACT, 47 STAT. 169, 247, DENIED THE
BENEFIT, OTHERWISE ALLOWED, OF EXCLUSION FROM THE COMPUTATION TO THE
EXTENT OF THE FIRST $5,000 OF EACH GIFT "MADE TO ANY PERSON BY THE
DONOR" DURING THE CALENDAR YEAR. 

YEAR A TAX UPON THE NET AMOUNT OF TRANSFERS "BY ANY INDIVIDUAL  ...  OF
PROPERTY BY GIFT."  FOR THE PURPOSE OF COMPUTING THE TAX SEC. 504(B)
PROVIDES "IN THE CASE OF GIFTS (OTHER THAN OF FUTURE INTERESTS IN
PROPERTY) MADE TO ANY PERSON BY THE DONOR DURING THE CALENDAR YEAR, THE
FIRST $5,000 OF SUCH GIFTS  ... SHALL NOT  ...  BE INCLUDED IN THE
TOTAL AMOUNT OF GIFTS MADE DURING SUCH YEAR." 

IN 1932 THE TAXPAYER, RESPONDENT HERE, CREATED A TRUST FOR THE
BENEFIT OF HIS EIGHT GRANDCHILDREN AND ANY OTHER GRANDCHILDREN WHO
MIGHT AFTERWARD BE BORN DURING THE TERM OF THE TRUST.  THE TRUSTEE WAS
DIRECTED TO ACCUMULATE THE INCOME FOR A PERIOD OF TEN YEARS AND
THEREAFTER TO PAY AN "EQUAL GRANDCHILD'S DISTRIBUTIVE SHARE" OF THE
INCOME TO EACH OF THE NAMED GRANDCHILDREN WHO WERE THEN LIVING AND
TWENTY-ONE YEARS OF AGE AND TO PAY A LIKE SHARE OF INCOME TO EACH OTHER
NAMED GRANDCHILD FOR LIFE AFTER THAT CHILD SHOULD REACH THE AGE OF
TWENTY-ONE YEARS.  PROVISION WAS MADE WHEREBY GRANDCHILDREN BORN AFTER
THE CREATION OF THE TRUST AND DURING ITS LIFE WERE TO RECEIVE LIKE
PARTICIPATION IN THE INCOME OF THE TRUST EXCEPT AS TO DISTRIBUTIONS OF
INCOME MADE PRIOR TO THE BIRTH OF SUCH AFTER-BORN GRANDCHILDREN, AND
EXCEPT THAT THE AFTER-BORN GRANDCHILDREN SHOULD BE PAID THEIR SHARES OF
THE INCOME DURING THEIR RESPECTIVE MINORITIES AFTER THE TERMINATION OF
THE TEN-YEAR ACCUMULATION PERIOD.  THE TRUST INSTRUMENT ALSO MADE GIFTS
OVER OF THE SHARE OF THE INCOME OF EACH GRANDCHILD AT DEATH, THE
DETAILS OF WHICH ARE NOT NOW MATERIAL.  IT WAS FURTHER PROVIDED THAT
THE TRUST SHOULD TERMINATE TWENTY-ONE YEARS AFTER DEATH OF THE LAST
SURVIVOR OF THE NAMED GRANDCHILDREN, WHEN THE CORPUS OF THE TRUST, WITH
ACCUMULATED INCOME, WAS TO BE DISTRIBUTED IN EQUAL SHARES AMONG THE
SURVIVING GRANDCHILDREN AND THE ISSUE PER STIRPES OF ALL DECEASED
GRANDCHILDREN. 

DURING THE YEARS 1933, 1934, AND 1935, THE TAXPAYER ADDED FURTHER
AMOUNTS OF PROPERTY TO THE 1932 TRUST.  IN 1934 HE ALSO MADE GIFTS
DIRECTLY TO HIS THREE GRANDDAUGHTERS AND CREATED A TRUST TO PAY THE
INCOME IN EQUAL SHARES TO HIS WIFE AND THREE DAUGHTERS WITH GIFTS OVER
OF EACH SHARE OF THE CORPUS OF THE TRUST UPON THE DEATH OF THE LIFE
TENANT. 

UPON CLAIMS FOR REFUNDS OF OVERPAID TAXES UPON THE TRANSFERS MADE IN
THE YEARS 1933, 1934, AND 1935, THE COMMISSIONER RECOMPUTED THE TAX AND
ALLOWED ONE $5,000 EXCLUSION ONLY FROM THE NET AMOUNTS SUBJECT TO GIFT
TAX GIVEN OR ADDED IN EACH YEAR TO EACH TRUST.  IN THE PRESENT SUIT,
BROUGHT IN THE COURT OF CLAIMS, RESPONDENT SOUGHT TO RECOVER OVERPAID
TAXES FOR THE YEARS IN QUESTION ON THE GROUNDS THAT THE GIFTS TO THE
BENEFICIARIES WERE GIFTS OF PRESENT, NOT FUTURE, INTERESTS AND THAT THE
TAXPAYER IN THE COMPUTATION OF THE TAX FOR EACH YEAR WAS ENTITLED TO
ONE EXCLUSION OF $5,000 FOR EACH BENEFICIARY.  THE COURT SUSTAINED BOTH
CONTENTIONS AND GAVE JUDGMENT FOR RESPONDENT ACCORDINGLY.  90 CT. CLS.
614; 31 F.SUPP.  770.  WE GRANTED CERTIORARI, 311 U.S. 634, TO RESOLVE
THE CONFLICT OF THE DECISION BELOW WITH THAT OF THE SEVENTH CIRCUIT IN
UNITED STATES V. RYERSON, 114 F.2D 150. 

THE GOVERNMENT CHALLENGES BOTH GROUNDS OF DECISION BELOW.  IT ARGUES
THAT ONLY A SINGLE $5,000 EXCLUSION IS ALLOWABLE UNDER SEC. 504(B) FROM
THE TOTAL GIFTS MADE TO THE TRUST IN EACH CALENDAR YEAR AND THAT IF THE
GIFTS ARE DEEMED TO BE MADE TO THE NAMED BENEFICIARIES OF THE TRUST NO
DEDUCTION CAN BE ALLOWED IN THE CASE OF GIFTS TO THE 1932 TRUST BECAUSE
THEY WERE OF FUTURE INTERESTS FOR WHICH NO EXCLUSION IS ALLOWED BY SEC.
504(B). 

WE HAVE THIS DAY DECIDED THE FIRST QUESTION, IN HELVERING V.
HUTCHINGS, ANTE, P. 393, IN WHICH WE HELD THAT IN THE CASE OF GIFTS IN
TRUST THE BENEFICIARIES ARE THE PERSONS TO WHOM THE GIFTS ARE MADE AND
THAT FOR PURPOSES OF COMPUTATION OF THE TAX SEC. 504(B) EXCLUDES THE
FIRST $5,000 IN VALUE OF THE GIFT TO EACH BENEFICIARY FROM THE TAXABLE
AMOUNT OF THE GIFTS MADE IN THE CALENDAR YEAR.  FOR THE REASONS STATED
IN OUR OPINION IN THAT CASE WE HOLD THAT THE FIRST BENEFICIARIES OF THE
TRUSTS IN THIS CASE ARE THE PERSONS TO WHOM THE GIFTS WERE MADE AND
THAT THE TAXPAYER IS ENTITLED TO THE BENEFIT OF THE $5,000 EXCLUSION
FOR EACH GIFT TO SUCH BENEFICIARY IF IT IS NOT OF A FUTURE INTEREST. 

BUT THE GOVERNMENT ARGUES HERE, AS IT DID BELOW, THAT THE GIFTS TO
THE BENEFICIARIES OF THE 1932 TRUST ARE OF FUTURE INTERESTS WITHIN THE
MEANING OF THE STATUTE AND TREASURY REGULATIONS.  WHILE THE EIGHT NAMED
GRANDCHILDREN ARE THE FIRST BENEFICIARIES OF THE TRUST, AND THE PERSONS
TO WHOM THE GIFTS WERE MADE, NONE OF THEM TAKES ANY BENEFIT FROM THE
TRUST BEFORE THE END OF THE TEN-YEAR ACCUMULATION PERIOD OR UNTIL HE IS
TWENTY-ONE, WHICHEVER LAST OCCURS, AND THEN ONLY IF HE SURVIVES THAT
EVENT.  AND THE QUESTION IS WHETHER SUCH A GIFT IS A GIFT OF A "FUTURE
INTEREST" WITHIN THE MEANING OF SEC. 504(B).  RESPONDENT, RELYING ON
STATUTES AND JUDICIAL DECISIONS OF ALABAMA, WHERE THE TRUST WAS CREATED
AND IS BEING ADMINISTERED, INSISTS THAT THE GIFTS TO THE NAMED
GRANDCHILDREN ARE PRESENT, NOT FUTURE, INTERESTS AS DEFINED BY ALABAMA
LAW.  HE ARGUES THAT AS SEC. 504(B) DOES NOT DEFINE THE "FUTURE
INTERESTS" GIFTS OF WHICH ARE EXCLUDED FROM ITS BENEFITS, THEY MUST BE
TAKEN TO BE FUTURE INTERESTS AS DEFINED BY THE LOCAL LAW, AND IT IS THE
LOCAL LAW DEFINITION OF FUTURE INTERESTS WHICH MUST BE ADOPTED IN
APPLYING THE SECTION.  BUT AS WE HAVE OFTEN HAD OCCASION TO POINT OUT,
THE REVENUE LAWS ARE TO BE CONSTRUED IN THE LIGHT OF THEIR GENERAL
PURPOSE TO ESTABLISH A NATIONWIDE SCHEME OF TAXATION UNIFORM IN ITS
APPLICATION.  HENCE THEIR PROVISIONS ARE NOT TO BE TAKEN AS SUBJECT TO
STATE CONTROL OR LIMITATION UNLESS THE LANGUAGE OR NECESSARY
IMPLICATION OF THE SECTION INVOLVED MAKES ITS APPLICATION DEPENDENT ON
STATE LAW.  BURNET V. HARMEL, 287 U.S. 103, 110; MORGAN V.
COMMISSIONER, 309 U.S. 78, 81. 

WE FIND NO SUCH IMPLICATION IN THE EXCLUSION OF GIFTS OF "FUTURE
INTERESTS" FROM THE BENEFITS GIVEN BY SEC. 504(B).  IN THE ABSENCE OF
ANY STATUTORY DEFINITION OF THE PHRASE WE LOOK TO THE PURPOSE OF THE
STATUTE TO ASCERTAIN WHAT IS INTENDED.  IT PLAINLY IS NOT CONCERNED
WITH THE VARYING LOCAL DEFINITIONS OF PROPERTY INTERESTS OR WITH THE
LOCAL REFINEMENTS OF CONVEYANCING, AND THERE IS NO REASON FOR SUPPOSING
THAT THE EXTENT OF THE GRANTED TAX EXEMPTION WAS INTENDED TO BE GIVEN A
CORRESPONDING VARIATION.  ITS PURPOSE WAS RATHER THE PROTECTION OF THE
REVENUE AND THE APPROPRIATE ADMINISTRATION OF THE TAX IMMUNITY PROVIDED
BY THE STATUTE.  IT IS THIS PURPOSE WHICH MARKS THE BOUNDARIES OF THE
STATUTORY COMMAND.  THE COMMITTEE REPORTS RECOMMENDING THE LEGISLATION
DECLARED (H. REPT. NO. 708, 72D CONG., 1ST SESS., P. 29; S. REPT. NO.
665, 72D CONG., 1ST SESS., P. 41): 

"THE TERM 'FUTURE INTERESTS IN PROPERTY' REFERS TO ANY INTEREST OR
ESTATE, WHETHER VESTED OR CONTINGENT, LIMITED TO COMMENCE IN POSSESSION
OR ENJOYMENT AT A FUTURE DATE.  THE EXEMPTION BEING AVAILABLE ONLY IN
SO FAR AS THE DONEES ARE ASCERTAINABLE, THE DENIAL OF THE EXEMPTION IN
THE CASE OF GIFTS OF FUTURE INTERESTS IS DICTATED BY THE APPREHENDED
DIFFICULTY, IN MANY INSTANCES, OF DETERMINING THE NUMBER OF EVENTUAL
DONEES AND THE VALUES OF THEIR RESPECTIVE GIFTS." 

ARTICLE XI OF TREASURY REGULATIONS 79, 1933 AND 1936 EDITIONS,
INTERPRETING SEC. 504(B), DECLARED THAT "FUTURE INTERESTS" INCLUDE ANY
INTEREST OR ESTATE "WHETHER VESTED OR CONTINGENT, LIMITED TO COMMENCE
IN USE, POSSESSION, OR ENJOYMENT AT SOME FUTURE DATE OR TIME."  THIS
DEFINITION STANDS UNCHANGED IN THE REGULATIONS AND, WHILE SEC. 504(B)
WAS AMENDED BY SEC. 505 OF THE 1938 REVENUE ACT SO AS TO WITHDRAW THE
BENEFIT OF THE $5,000 EXCLUSION FROM ALL GIFTS IN TRUST, THE SECTION AS
AMENDED CONTINUES TO WITHHOLD THE BENEFIT OF THE EXCLUSION FROM ALL
GIFTS OF "FUTURE INTERESTS IN PROPERTY." 

WE THINK THAT THE REGULATIONS, SO FAR AS THEY ARE APPLICABLE TO THE
PRESENT GIFTS, ARE WITHIN THE COMPETENCE OF THE TREASURY IN
INTERPRETING SEC. 504(B) AND EFFECT ITS PURPOSE AS DECLARED BY THE
REPORTS OF THE CONGRESSIONAL COMMITTEES, AND THAT THE GIFTS TO THE
EIGHT BENEFICIARIES OF THE 1932 TRUST WERE GIFTS OF FUTURE INTERESTS
WHICH ARE EXCLUDED FROM THE BENEFITS OF THAT SECTION.  HERE THE
BENEFICIARIES HAD NO RIGHT TO THE PRESENT ENJOYMENT OF THE CORPUS OR OF
THE INCOME AND UNLESS THEY SURVIVE THE TEN-YEAR PERIOD THEY WILL NEVER
RECEIVE ANY PART OF EITHER.  THE "USE, POSSESSION, OR ENJOYMENT" OF
EACH DONEE IS THUS POSTPONED TO THE HAPPENING OF A FUTURE UNCERTAIN
EVENT.  THE GIFT THUS INVOLVED THE DIFFICULTIES OF DETERMINING THE
"NUMBER OF EVENTUAL DONEES AND THE VALUE OF THEIR RESPECTIVE GIFTS"
WHICH IT WAS THE PURPOSE OF THE STATUTE TO AVOID. 

WE HAVE NO OCCASION TO CONSIDER THE DEFINITION OF FUTURE INTERESTS IN
OTHER ASPECTS THAN THOSE PRESENTED BY THE PRESENT CASE.  THE JUDGMENT
OF THE COURT OF CLAIMS WILL BE REVERSED SO FAR ONLY AS IT EXCLUDED THE
GIFTS TO THE 1932 TRUST FROM THE COMPUTATION OF THE TAX FOR EACH OF THE
YEARS IN QUESTION.  REVERSED. 
..END :




















RYERSON V. UNITED STATES, 312 U.S. 405 


NO. 495.  ARGUED JANUARY 8, 1941.  - DECIDED MARCH 3, 1941.  - 114 F.2D
150, AFFIRMED. 


1.  A RESPONDENT IN CERTIORARI IS ENTITLED TO SUSTAIN THE JUDGMENT
UPON A GROUND OTHER THAN THAT ADOPTED BY THE COURT BELOW.  P. 408. 

2.  IN COMPUTING GIFT TAXES UNDER THE REVENUE ACT OF 1932, GIFTS IN
ONE TRUST FOR SEVERAL BENEFICIARIES ARE EACH ENTITLED TO DEDUCTION UP
TO $5,000, IF THEY ARE NOT GIFTS OF "FUTURE INTERESTS."  HELVERING V.
HUTCHINGS, ANTE, P. 393.  P. 408. 

3.  GIFTS OF SEPARATE EQUAL SHARES OF THE CORPUS OF A TRUST TO EACH
OF THE TWO TRUSTEES IN THE EVENT OF THEIR JOINT REQUEST THAT THE TRUST
BE TERMINATED ARE GIFTS UPON A CONTINGENCY WHICH MAY NEVER HAPPEN AND
ARE THEREFORE GIFTS OF "FUTURE INTERESTS" WITHIN THE MEANING OF SEC.
504(B) OF THE REVENUE ACT OF 1932.  UNITED STATES V. PELZER, ANTE, P.
399.  P. 408. 

4. A JOINT POWER TO TWO BENEFICIARIES TO TERMINATE A TRUST AND
THEREBY ACQUIRE THE CORPUS IN EQUAL SHARES IS NOT THE EQUIVALENT OF
OWNERSHIP SINCE THE JOINT POWER IS NOT FOR THE JOINT BENEFIT OF THE
DONEES AND ITS EXERCISE COULD ONLY OPERATE FOR THE BENEFIT OF EACH TO
THE EXTENT OF ONE-HALF OF THE TRUST PROPERTY AND THEN ONLY IN THE EVENT
THAT BOTH AGREED TO UNITE IN ITS EXERCISE, AND THE USE AND ENJOYMENT OF
ANY PART OF THE TRUST FUND BY EITHER WILL BE POSTPONED UNTIL BOTH JOIN
IN THE EXERCISE OF THE POWER.  P. 408. 

5.  GIFTS IN TRUST DEPENDENT UPON SURVIVORSHIP OF ONE OR MORE PERSONS
AT THE DEATH OF THE DONOR, ARE GIFTS OF "FUTURE INTERESTS" WITHIN THE
MEANING OF SEC. 504(B) OF THE REVENUE ACT OF 1932.  UNITED STATES V.
PELZER, ANTE, P. 399.  P. 409. 

RYERSON ET AL., EXECUTORS, V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 311 U.S. 640, TO REVIEW A JUDGMENT REVERSING A RECOVERY
IN THE DISTRICT COURT, 28 F.SUPP.  265, FOR ALLEGED OVERPAYMENT OF GIFT
TAXES. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO HELVERING V. HUTCHINGS, ANTE, P. 393, AND
UNITED STATES V. PELZER, ANTE, P. 399, AND IT PRESENTS THE QUESTIONS
DECIDED IN THOSE CASES. 

THE SOLE QUESTION RAISED BY THE PETITION FOR CERTIORARI IS WHETHER,
UNDER SEC. 504(B) OF THE REVENUE ACT OF 1932, 47 STAT. 169, 247, THE
DONOR OF PROPERTY IN TRUST FOR NUMEROUS BENEFICIARIES IS ENTITLED TO A
SINGLE GIFT TAX EXEMPTION OR EXCLUSION TO THE EXTENT OF THE FIRST
$5,000 OF THE GIFT, OR TO SEPARATE EXEMPTIONS OF $5,000 FOR EACH
BENEFICIARY.  THE GOVERNMENT INSISTS THAT IF THAT QUESTION BE DECIDED
AGAINST IT, IT IS NEVERTHELESS ENTITLED TO RETAIN THE JUDGMENT BELOW IN
ITS FAVOR BECAUSE THE GIFTS TO THE BENEFICIARIES WERE OF FUTURE
INTERESTS WHICH, BY SEC. 504(B), ARE DENIED THE BENEFIT OF THE
EXCLUSION OTHERWISE ALLOWED BY THE SECTION. 

IN 1934 PETITIONERS' TESTATRIX TRANSFERRED TWO SINGLE PREMIUM
INSURANCE POLICIES ON HER OWN LIFE MATURING AT A FUTURE DATE, AS
ADDITIONS TO TWO SEPARATE TRUSTS, ONE CREATED IN 1933, THE OTHER
ESTABLISHED IN 1934 BUT BEFORE THE TRANSFER.  THE INSTRUMENT CREATING
THE FIRST TRUST PROVIDED THAT THE TRUSTEES SHOULD PAY OVER ONE-FOURTH
OF THE NET INCOME TO MARY RYERSON FROST, ONE OF THE TRUSTEES, FOR LIFE,
WITH REMAINDER OVER FOR LIFE TO HER TWO DAUGHTERS IF SURVIVING AT HER
DEATH, WITH FURTHER REMAINDERS OVER TO THEIR ISSUE PER STIRPES.  THE
TRUST INSTRUMENT DIRECTED THAT THE REMAINING THREE-FOURTHS OF THE
INCOME SHOULD BE ACCUMULATED AND ADDED TO THE PRINCIPAL OF THE TRUST. 
IT PROVIDED THAT THE TRUST WAS TO TERMINATE UPON THE DEATH OF THE LAST
SURVIVOR OF THREE PERSONS, THE FIRST LIFE TENANT AND HER TWO DAUGHTERS,
AND WAS THEN TO BE DISTRIBUTED, THE PARTICULAR DISTRIBUTION BEING
DEPENDENT UPON CONTINGENCIES WHICH ARE NOT NOW MATERIAL.  THE TRUST
INSTRUMENT ALSO CONTAINED NUMEROUS PROVISIONS FOR THE TERMINATION OF
THE TRUST BY JOINT ACTION OF THE TRUSTEES, DONALD MCKAY FROST AND MARY
RYERSON FROST, WHO WAS ALSO LIFE TENANT, OR BY THE SURVIVOR OR OTHER OF
THEM IN THE CASE OF THE DEATH OR MENTAL INCAPACITY OF EITHER.  OTHER
PROVISIONS WERE MADE FOR THE TERMINATION OF THE TRUST AND DISTRIBUTION
OF THE TRUST PROPERTY IN THE EVENT OF THE DEATH OR MENTAL INCAPACITY OF
BOTH, WITHOUT HAVING EXERCISED THEIR POWER OF TERMINATION. 

THE INSTRUMENT CREATING THE 1934 TRUST PROVIDED THAT UPON THE DEATH
OF THE GRANTOR, WHO WAS THE INSURED, WHO WAS LIVING AT THE TIME OF THE
TRANSFER, THE TRUSTEES SHOULD DISTRIBUTE THE PROCEEDS OF THE INSURANCE
AS FOLLOWS:  IF THE WIDOW OF THE GRANTOR'S SON SURVIVED THE GRANTOR THE
INCOME OF ONE-THIRD OF THE PROCEEDS OF THE INSURANCE POLICY WAS TO BE
PAID TO THE SON'S WIDOW FOR LIFE WITH REMAINDERS OVER TO THOSE PERSONS
WHO WOULD BE HEIRS AT LAW OF THE SON HAD HE DIED AT THE SAME TIME AS
THE LIFE TENANT.  THE REMAINING TWO-THIRDS OF THE PROCEEDS, OR ALL IF
THE SON'S WIDOW DID NOT SURVIVE THE GRANTOR, WERE TO GO TO THE
DESCENDANTS OF THE GRANTOR'S SON THEN SURVIVING, WITH GIFTS OVER IN
DEFAULT OF SUCH DESCENDANTS. 

IN A SUIT BROUGHT BY PETITIONER TO RECOVER OVERPAID GIFT TAXES FOR
THE YEAR 1934 THE DISTRICT COURT RULED THAT IN THE COMPUTATION OF THE
TAX THE TAXPAYER WAS ENTITLED TO TWO EXCLUSIONS TO THE EXTENT OF $5,000
EACH FOR THE GIFTS MADE TO MARY RYERSON FROST AND DONALD MCKAY FROST
UNDER THE 1933 TRUST AND TO THREE EXCLUSIONS UNDER THE 1934 TRUST, ONE
FOR THE SON'S WIDOW AND TWO FOR HIS TWO LIVING DESCENDANTS.  THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT REVERSED, 114 F.2D 150, HOLDING THAT
THE TWO TRUSTS WERE THE DONEES AND THAT A SINGLE EXCLUSION WAS
ALLOWABLE FOR EACH TRUST.  WE GRANTED CERTIORARI, 311 U.S. 640, TO
RESOLVE THE CONFLICT BETWEEN THE DECISION BELOW AND THAT OF THE COURT
OF CLAIMS IN THE PELZER CASE AND THE CIRCUIT COURT OF APPEALS FOR THE
FIFTH CIRCUIT IN THE HUTCHINGS CASE. 

FOR THE REASONS STATED IN OUR OPINION IN THE HUTCHINGS CASE WE HOLD
THAT THE BENEFICIARIES OF THE TWO TRUSTS WERE THE PERSONS TO WHOM THE
GIFTS WERE MADE AND THAT THE GIFTS TO THEM AND NOT TO THE TRUSTS, AS
THE COURTS BELOW HELD, WERE ENTITLED TO THE BENEFIT OF THE EXCLUSION
ALLOWED BY SEC. 504(B) PROVIDED THE GIFTS WERE NOT OF "FUTURE
INTERESTS" TO WHICH THE SECTION DENIES THE BENEFIT OF THE EXCLUSION. 

AS THE GOVERNMENT HAS NOT SOUGHT CERTIORARI IT CANNOT ATTACK THE
JUDGMENT BELOW, BUT IT IS FREE TO SUSTAIN IT UPON ANY LEGAL GROUND
WHICH WILL SUPPORT IT.  LETULLE V. SCOFIELD, 308 U.S. 415, 421, 422. 
EVEN THOUGH THE JUDGMENT BELOW WAS RESTED UPON THE ERRONEOUS GROUND
THAT THE TRUSTS WERE "PERSONS" TO WHOM THE GIFTS WERE MADE WITHIN THE
MEANING OF SEC. 504(B), THE GOVERNMENT MAY JUSTIFY THE JUDGMENT HERE ON
THE GROUND THAT PETITIONERS ARE NOT ENTITLED TO THE EXCLUSIONS CLAIMED
SO FAR AS THE GIFTS WERE OF FUTURE INTERESTS. 

THE GIFTS OF A SEPARATE EQUAL SHARE OF THE CORPUS OF THE 1933 TRUST
TO EACH OF THE TWO TRUSTEES IN THE EVENT OF THEIR JOINT REQUEST THAT
THE TRUST BE TERMINATED WAS A GIFT UPON A CONTINGENCY WHICH MIGHT NEVER
HAPPEN.  FOR THE REASONS STATED IN OUR OPINION IN THE PELZER CASE THOSE
GIFTS WERE OF FUTURE INTERESTS WITHIN THE MEANING OF SEC. 504(B) AND
CONSEQUENTLY WERE NOT ENTITLED TO THE BENEFIT OF THE EXCLUSION.  WHILE
A PRESENT POWER OF DISPOSITION FOR ONE'S OWN BENEFIT IS THE EQUIVALENT
OF OWNERSHIP, SEE CURRY V. MCCANLESS, 307 U.S. 357, 370, ET SEQ., AND
CASES CITED, HERE THE JOINT POWER WAS NOT FOR THE JOINT BENEFIT OF THE
DONEES OF THE POWER.  ITS EXERCISE COULD ONLY OPERATE FOR THE BENEFIT
OF EACH TO THE EXTENT OF ONEHALF OF THE TRUST PROPERTY AND THEN ONLY IN
THE EVENT THAT BOTH AGREED TO UNITE IN ITS EXERCISE.  IN ANY CASE USE
AND ENJOYMENT OF ANY PART OF THE TRUST FUND BY EITHER WAS POSTPONED
UNTIL SUCH TIME AS BOTH JOINED IN THE EXERCISE OF THE POWER.  THE
INTERESTS GRANTED TO THE TRUSTEES UPON THEIR TERMINATION OF THE TRUST
SHOULD THEREFORE HAVE BEEN INCLUDED TO THEIR FULL EXTENT IN THE
COMPUTATION OF THE GIFT TAX BECAUSE THEY WERE "FUTURE INTERESTS" WITHIN
THE MEANING OF SEC. 504(B) AND ART. XI, TREASURY REGULATIONS 79.  AS
THE PETITIONERS HAVE BEEN ALLOWED ONE EXCLUSION BY THE JUDGMENT BELOW
WHICH IS NOT ATTACKED HERE IT IS UNNECESSARY TO CONSIDER WHETHER THE
LIFE INTEREST IN THE INCOME GIVEN TO MARY RYERSON FROST IS A PRESENT OR
FUTURE INTEREST WITHIN THE MEANING OF SEC. 504(B). 

FOR LIKE REASONS WE CONCLUDE THAT THE GIFTS TO THE BENEFICIARIES OF
THE 1934 TRUST WERE OF FUTURE INTERESTS AND THAT THE PETITIONERS ARE
ENTITLED TO NO EXCLUSION WITH RESPECT TO THEM.  THE GIFT OF INCOME TO
THE LIFE TENANT WAS CONTINGENT UPON HER SURVIVORSHIP OF THE GRANTOR AT
A FUTURE DATE.  THE GIFTS OF THE PRINCIPAL AMOUNT OF THE PROCEEDS OF
THE POLICY TO DESCENDANTS OF THE DECEASED SON OF THE GRANTOR WERE IN
PART CONTINGENT UPON THEIR SURVIVORSHIP OF THE SON'S WIDOW AND HER
SURVIVORSHIP OF THE GRANTOR OR, IF SHE DID NOT SURVIVE HIM, THEN THE
GIFTS OF THE ENTIRE PRINCIPAL WERE CONTINGENT UPON SURVIVORSHIP OF THE
DESCENDANTS AT THE GRANTOR'S DEATH.  THUS ALL THOSE WHO MIGHT BECOME
ENTITLED TO THE USE AND ENJOYMENT OF THE TRUST, PRINCIPAL AND INCOME,
WERE ASCERTAINABLE ONLY UPON THE HAPPENING OF ONE OR MORE UNCERTAIN
FUTURE EVENTS, SURVIVORSHIP OF ONE OR MORE PERSONS AT THE DEATH OF THE
DONOR, AND SO THEY WERE DONEES OF GIFTS OF "FUTURE INTERESTS" WITHIN
THE MEANING OF SEC. 504(B) AND THE TREASURY REGULATIONS.  CONSEQUENTLY
PETITIONERS ARE NOT ENTITLED TO THE SINGLE EXCLUSION WHICH THE COURT
BELOW ALLOWED.  BUT BECAUSE THE GOVERNMENT HAS SOUGHT NO CROSS-PETITION
ATTACKING THE JUDGMENT BELOW, IT MUST BE AFFIRMED. 
..END :




















EQUITABLE CO. V. HALSEY, STUART & CO., 312 U.S. 410 


NO. 291.  ARGUED JANUARY 15, 16, 1941.  - DECIDED MARCH 3, 1941.  - 112
F.2D 302, REVERSED. 


1.  IN AN ACTION IN A FEDERAL COURT FOR DAMAGES RESULTING FROM SALES
OF SECURITIES ON REPRESENTATIONS OF FACT AFFECTING THEIR VALUE ALLEGED
TO HAVE BEEN FALSE AND FRAUDULENT, THE RIGHT OF RECOVERY IS GOVERNED BY
THE LAW OF THE STATE IN WHICH THE REPRESENTATIONS AND SALES WERE MADE. 
P. 420. 

2.  STIPULATIONS BY WHICH ONE ATTEMPTS TO AVOID THE CONSEQUENCES OF
FALSE STATEMENTS FRAUDULENTLY OR RECKLESSLY MADE ARE STRICTLY CONSTRUED
IN THE COURTS OF IOWA.  P. 419. 

3.  ASSUMING THAT A DEALER IN SECURITIES WHO OFFERS BONDS BY A
PRINTED CIRCULAR CONTAINING FALSE REPRESENTATIONS IS PROTECTED FROM
LIABILITY FOR THEM, AND FOR LIKE STATEMENTS MADE LATER, BY A "HEDGE
CLAUSE" IN A CIRCULAR READING:  "ALL STATEMENTS HEREIN ARE OFFICIAL, OR
ARE BASED ON INFORMATION WHICH WE REGARD AS RELIABLE, AND WHILE WE DO
NOT GUARANTEE THEM, WE OURSELVES HAVE RELIED UPON THEM IN THE PURCHASE
OF THIS SECURITY," THE PROTECTION DOES NOT EXTEND TO MISREPRESENTATIONS
OF OTHER AND DIFFERENT FACTS MADE AFTER SUBMISSION OF THE CIRCULAR TO
THE PURCHASER.  P. 419. 

4.  A BUYER OF BONDS WHO RELIES TO HIS INJURY UPON MATERIAL FALSE
REPRESENTATIONS BY THE SELLER OF CONDITIONS AFFECTING THEIR VALUE, IS
NOT UNDER IOWA LAW PRECLUDED FROM RECOVERING HIS DAMAGE BY HIS FAILURE
TO MAKE HIS OWN INVESTIGATION TO ASCERTAIN WHETHER THE REPRESENTATIONS
ARE TRUE.  P. 424. 

5.  THE TRIAL COURT CORRECTLY INSTRUCTED THE JURY, IN CONFORMITY TO
IOWA LAW, THAT TO FIND A VERDICT FOR THE PURCHASER OF THE BONDS IT MUST
FIND THAT THE UNTRUE STATEMENTS WERE KNOWN BY THE SELLER TO BE UNTRUE
OR WERE MADE AS TRUE WITH NO REASONABLE GROUND FOR BELIEVING THEM TO BE
TRUE, AND IT CORRECTLY SUBMITTED TO THE JURY THE QUESTION WHETHER SUCH
STATEMENTS, INCLUDING THOSE IN THE HEDGE CLAUSE ITSELF, WERE RECKLESSLY
MADE WITHOUT REASONABLE GROUND FOR BELIEVING THEM TO BE TRUE.  P. 420. 

6.  UPON EVIDENCE THAT THE SELLER OF BONDS HAD INDUCED THEIR PURCHASE
BY EXHIBITING TO THE BUYER THE BALANCE SHEET OF A CORPORATION, WHICH
HAD GUARANTEED THE PAYMENT OF THE BONDS, WITHOUT DISCLOSING
CIRCUMSTANCES KNOWN TO THE SELLER INDICATING THAT SINCE THE DATE OF THE
BALANCE SHEET THE FINANCIAL CONDITION OF THE CORPORATION HAD BEEN
SERIOUSLY IMPAIRED, HELD THAT THE TRIAL COURT, IN CONFORMITY TO IOWA
LAW, CORRECTLY SUBMITTED THE EVIDENCE TO THE JURY WITH THE INSTRUCTION
THAT IT COULD FIND THE SELLER LIABLE FOR FRAUD OR MISREPRESENTATION
FROM SUCH PARTIAL DISCLOSURE ACCOMPANIED BY WILFUL CONCEALMENT OF
MATERIAL FACTS INCONSISTENT WITH THOSE STATED IN THE BALANCE SHEET.  P.
425. 

EQUITABLE LIFE INSURANCE CO. OF IOWA V. HALSEY, STUART & CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 311 U.S. 626, TO REVIEW A JUDGMENT REVERSING A RECOVERY
OF DAMAGES IN THE DISTRICT COURT.  THE ACTION WAS BASED ON FRAUD
PRACTICED IN SALES OF PUBLIC IMPROVEMENT BONDS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS SUIT IN THE DISTRICT COURT FOR NORTHERN
ILLINOIS TO RECOVER DAMAGES SUFFERED BY REASON OF ALLEGED FRAUDULENT
STATEMENTS MADE BY RESPONDENT'S AGENTS WHICH INDUCED PETITIONER TO
PURCHASE OF RESPONDENT A LARGE NUMBER OF LONGVIEW (WASHINGTON) LOCAL
IMPROVEMENT BONDS.  THE TRIAL TO A JURY RESULTED IN A VERDICT AND
JUDGMENT FOR PETITIONER IN THE SUM OF $66,150.  THE COURT OF APPEALS
FOR THE SEVENTH CIRCUIT REVERSED ON THE GROUND THAT SOME OF THE UNTRUE
STATEMENTS, ON THE FAITH OF WHICH PETITIONER HAD PURCHASED THE BONDS,
WERE WITHIN THE PROTECTION OF THE "HEDGE CLAUSE" WHICH APPEARED IN A
CIRCULAR BY WHICH RESPONDENT HAD OFFERED THE BONDS FOR SALE TO
PETITIONER.  THE CLAUSE READ: 

"ALL STATEMENTS HEREIN ARE OFFICIAL, OR ARE BASED ON INFORMATION
WHICH WE REGARD AS RELIABLE, AND WHILE WE DO NOT GUARANTEE THEM, WE
OURSELVES HAVE RELIED UPON THEM IN THE PURCHASE OF THIS SECURITY."  THE
COURT FOUND THAT ANOTHER UNTRUE STATEMENT CONTAINED IN A LETTER WRITTEN
BY RESPONDENT'S AGENT TO PETITIONER WAS "CARELESSLY MADE," BUT, TAKEN
ALONE, WAS TOO TRIVIAL IN ITS EFFECT IN INDUCING PETITIONER TO PURCHASE
THE BONDS, TO SUPPORT THE VERDICT.  IT ALSO HELD THAT THERE WAS NO
BREACH OF LEGAL DUTY ON THE PART OF RESPONDENT OR ITS OFFICERS IN THEIR
FAILURE TO REVEAL TO PETITIONER FACTS KNOWN TO RESPONDENT INDICATING
THAT A FINANCIAL STATEMENT OF A GUARANTOR OF THE BONDS, SUBMITTED TO
PETITIONER BY RESPONDENT'S AGENT, ON THE FAITH OF WHICH PETITIONER HAD
BOUGHT THE BONDS, DID NOT TRULY REPRESENT THE FINANCIAL CONDITION OF
THE GUARANTOR.  WE GRANTED CERTIORARI, 311 U.S. 626, UPON A PETITION
WHICH ASSERTED THE FAILURE OF THE COURT BELOW TO FOLLOW STATE LAW IN
ITS RULINGS, THE QUESTIONS PRESENTED BEING OF PUBLIC IMPORTANCE BECAUSE
THEY INVOLVE THE RELATION OF THE FEDERAL COURTS TO THE STATES. 

WE SUMMARIZE BRIEFLY THE EVIDENCE SUBMITTED TO THE JURY WHICH BEARS
ON THE CONTENTIONS MADE BEFORE US.  RESPONDENT IS A LARGE DEALER IN
BONDS AND SECURITIES, WITH AN OFFICE IN CHICAGO.  PETITIONER IS AN IOWA
CORPORATION HAVING ITS OFFICE AND PRINCIPAL PLACE OF BUSINESS IN IOWA
WHERE THE TRANSACTIONS RESULTING IN THE SALE OF THE BONDS IN QUESTION
TOOK PLACE.  IN MAY, 1930, RESPONDENT THROUGH AN AGENT OFFERED TO SELL
PETITIONER A QUANTITY OF THE BONDS OF THE LONGVIEW LOCAL IMPROVEMENT
DISTRICTS.  THE OFFERING WAS BY PRINTED CIRCULAR ISSUED BY RESPONDENT
ON APRIL 7, 1927, WHICH DESCRIBED THE BONDS AS PAYABLE FROM PROCEEDS OF
SPECIAL ASSESSMENTS TO BE LEVIED UPON THE BENEFITED PROPERTIES AND
STATED THAT THEIR PAYMENT WAS GUARANTEED PRINCIPAL AND INTEREST BY LONG
BELL LUMBER COMPANY, WHOSE BALANCE SHEET FOR THE YEAR ENDING DECEMBER
31, 1926, WAS PRINTED IN THE CIRCULAR.  THE CIRCULAR STATED - 

"LONGVIEW IS SITUATED ABOUT 133 MILES SOUTH OF SEATTLE AT THE
CONFLUENCE OF THE COLUMBIA AND COWLITZ RIVERS.  IT HAS A FRONTAGE OF 7
1/4 MILES ON THE FORMER, AND IS A PORT OF CALL FOR OCEAN-GOING VESSELS
MIDWAY BETWEEN PORTLAND AND THE PACIFIC OCEAN.  ...  BECAUSE OF ITS
NATURAL ADVANTAGES AND PROXIMITY TO THE TIMBER STANDS OF THE LONG-BELL
AND WEYERHAEUSER INTERESTS, LONGVIEW WAS SELECTED AS THE SITE FOR THE
VAST LUMBER MANUFACTURING PLANTS OF THESE COMPANIES.  THE PRESENT
OUTPUT OF THE LONG-BELL PLANTS IS 1,800,000 BOARD FEET PER DAY.  THE
WEYERHAEUSER PLANTS ARE UNDER CONSTRUCTION.  MANUFACTURING PLANTS HAVE
ALSO BEEN ERECTED BY OTHER CONCERNS, INCLUDING THE LONGVIEW CONCRETE
PIPE COMPANY, THE PACIFIC STRAW PAPER & BOARD COMPANY, THE MAGOR CAR
CORPORATION, THE STANDARD OIL COMPANY, LONGVIEW PAINT & VARNISH
COMPANY, AND THE CENTRAL MILL WORKS.  THE FIRST UNIT OF THE PLANTS OF
THE LONGVIEW FIBRE COMPANY, TO COST 2 1/2 MILLION DOLLARS, IS NOW WELL
UNDER WAY."  THE CIRCULAR CONTAINED THE "HEDGE CLAUSE" WHICH HAS
ALREADY BEEN QUOTED. 

IN MAKING THE OFFERING, RESPONDENT'S AGENT ALSO INFORMED A VICE
PRESIDENT OF PETITIONER THAT THE BONDS WERE SECURED BY ASSESSMENTS ON
PROPERTIES IN THE CITY OF LONGVIEW AND AS ADDITIONAL SECURITY CARRIED
THE FULL AND COMPLETE GUARANTEE OF THE LONG-BELL LUMBER COMPANY WHICH
WAS A VERY LARGE, LONG ESTABLISHED COMPANY DOING BUSINESS IN THE SOUTH
AND WEST; AND THAT LOCAL IMPROVEMENT DISTRICTS NOS. 11 AND 19, AGAINST
WHICH MOST OF THE BONDS WERE ISSUED, WERE PRACTICALLY CO-EXTENSIVE WITH
THE LIMITS OF THE CITY. 

AFTER READING THE CIRCULAR PETITIONER'S VICE PRESIDENT REQUESTED OF
RESPONDENT'S AGENT ADDITIONAL INFORMATION ABOUT LONGVIEW AND THE
PROPERTY THERE AND ABOUT THE LONG-BELL LUMBER COMPANY, WHICH HE
SUPPLIED IN A NUMBER OF DOCUMENTS.  ONE WAS A BOOKLET ISSUED BY THE
LONGVIEW COMPANY, A SUBSIDIARY OF LONG-BELL LUMBER COMPANY, ENGAGED IN
SELLING LONGVIEW REAL ESTATE.  THE BOOKLET SHOWED A MAP ON WHICH THE
MILLS OF LONGVIEW LUMBER COMPANY, THE PROPERTY OF THE WEYERHAEUSER
TIMBER COMPANY AND THE CITY OF LONGVIEW APPEARED TO EXTEND TO AND ALONG
THE NORTHERLY SIDE OF THE COLUMBIA RIVER.  THE MAP BORE A LEGEND
RECITING THAT IT "IS INTENDED TO SHOW IN A GENERAL WAY THE RELATION OF
THE VARIOUS PARTS OF THE CITY SITE TO EACH OTHER, AND LOCATION OF THE
CITY IN RELATION TO WATER, RAILROAD AND HIGHWAY TRANSPORTATION
FACILITIES."  ANOTHER DOCUMENT WAS ADVANCE PROOF OF AN ADVERTISEMENT OF
THE LONGVIEW COMPANY, PUBLISHED IN THE SATURDAY EVENING POST.  IT
CONTAINED AN ILLUSTRATION OF EXTENSIVE MANUFACTURING PLANTS, BENEATH
WHICH IT WAS STATED "THE THOROUGHLY MODERN ELECTRICALLY OPERATED
MANUFACTURING PLANTS SHOWN IN THE ABOVE SKETCH ARE IN LONGVIEW, WN.
THEY PRODUCE 1,800,000 FEET OF DOUGLAS FIR LUMBER A DAY.  THE BUILDINGS
COVER 72 ACRES.  SIX OCEAN-GOING FREIGHTERS CAN LOAD AT ONE TIME AT THE
LONG-BELL DOCKS."  ANOTHER DOCUMENT WAS A BOOKLET ISSUED BY THE
LONGVIEW CHAMBER OF COMMERCE CONTAINING STATEMENTS FROM WHICH IT COULD
REASONABLY BE INFERRED THAT THE MANUFACTURING PLANTS OF THE LONG-BELL
LUMBER COMPANY AND THE WEYERHAEUSER TIMBER COMPANY WERE WITHIN THE CITY
OF LONGVIEW AND THAT THE LATTER WAS ON THE LONGVIEW WATERFRONT ALONG
THE COLUMBIA RIVER. 

STILL ANOTHER DOCUMENT, WHICH WILL PRESENTLY BE DISCUSSED, WAS THE
PUBLISHED BALANCE SHEET FOR THE YEAR ENDING DECEMBER 31, 1929, OF THE
LONG-BELL LUMBER COMPANY.  RESPONDENT'S SALES MANAGER, ON MAY 15, 1930,
ALSO WROTE TO PETITIONER'S VICE PRESIDENT A LETTER OFFERING THE FIRST
$100,000 OF BONDS PURCHASED BY PETITIONER, SAYING, "WE BELIEVE YOU HAVE
BEFORE YOU PRACTICALLY ALL THE DATA COVERING THIS ISSUE OF BONDS," AND
"YOU OBSERVE, OF COURSE, THAT THIS CITY HAS NO FUNDED DEBT OTHER THAN
THESE IMPROVEMENT BONDS AND THAT THE ORIGINAL DEBT HAS BEEN MATERIALLY
REDUCED THROUGH RETIREMENT AND MATURITY." 

IT IS NOT SERIOUSLY CONTENDED HERE THAT PETITIONER DID NOT PURCHASE
THE BONDS ON THE FAITH OF THE STATEMENTS WHICH WE HAVE DETAILED AND
OTHERS OF SIMILAR CHARACTER, NOR IS IT DENIED THAT THE LONG-BELL,
WEYERHAEUSER, LONGVIEW FIBRE AND STANDARD OIL COMPANY PLANTS WERE ALL
OUTSIDE THE CITY LIMITS OF LONGVIEW AND THAT NONE OF THOSE PROPERTIES
WERE SUBJECT TO ASSESSMENTS IN ANY OF THE IMPROVEMENT DISTRICTS.  THE
MILL PROPERTIES WERE LOCATED BETWEEN THE COLUMBIA RIVER AND THE LIMITS
OF THE CITY OF LONGVIEW.  THE CITY NEVER HAD A FRONTAGE OF 7 1/4 MILES
UPON THE COLUMBIA RIVER AND NO SUCH FRONTAGE AT ALL EXCEPT FOR A
DISTANCE OF ABOUT 200 YARDS ADJACENT TO THE LONGVIEW DOCK AND NOT
WITHIN THE IMPROVEMENT DISTRICTS.  SUBSTANTIALLY ALL OF THE LAND
INCLUDED WITHIN THE LOCAL IMPROVEMENT DISTRICTS OF LONGVIEW WAS ALSO
INCLUDED WITHIN A DIKING DISTRICT KNOWN AS COWLITZ COUNTY CONSOLIDATED
DIKING DISTRICT NO. 1, WHICH IN MAY, 1930, WHEN THE NEGOTIATIONS FOR
THE SALE OF THE BONDS TO PETITIONER TOOK PLACE, HAD OUTSTANDING BONDS
IN THE SUM OF $2,554,000 PAYABLE FROM THE PROCEEDS OF SPECIAL
ASSESSMENTS TO BE LEVIED UPON SUBSTANTIALLY ALL LANDS WITHIN THE
IMPROVEMENT DISTRICTS.  RESPONDENT HAD PURCHASED THE ENTIRE ISSUE OF
DIKING BONDS FROM THE LONG-BELL LUMBER COMPANY IN 1925 AND LATER RESOLD
THEM TO THE PUBLIC. 

AT THE TRIAL A VICE PRESIDENT OF RESPONDENT, CALLED BY PETITIONER AS
AN ADVERSE WITNESS, TESTIFIED THAT IN PURCHASING THE LOCAL IMPROVEMENT
DISTRICT BONDS RESPONDENT GAVE NO CONSIDERATION TO THE SPECIAL
ASSESSMENTS AGAINST LONGVIEW REAL ESTATE; THAT RESPONDENT REGARDED LONG
BELL LUMBER COMPANY'S GUARANTEE AS THE SOLE JUSTIFICATION FOR HANDLING
THE BONDS AND WOULD NOT HAVE HANDLED THEM WITHOUT THE GUARANTEE.  NONE
OF THESE FACTS DETAILED BY THE WITNESS WERE COMMUNICATED TO PETITIONER
IN ADVANCE OF THE SALE OF THE BONDS. 

A CLOSE BUSINESS RELATIONSHIP HAD EXISTED BETWEEN RESPONDENT AND LONG
BELL LUMBER COMPANY FOR SOME YEARS BEFORE 1930.  IT HAD PURCHASED FROM
THE LUMBER COMPANY AND SOLD TO CUSTOMERS $25,000,000 OF ITS FIRST
MORTGAGE BONDS BETWEEN 1922 AND 1926, AND IN SOME OF ITS OFFERINGS IT
HAD BEEN REFERRED TO AS THE "FISCAL AGENT" OF THE LONG-BELL LUMBER
COMPANY.  IN 1926 IT HAD PURCHASED FROM THE LUMBER COMPANY AND RESOLD
$3,250,000 OF ITS BONDS.  IN THE YEARS 1925, 1926 AND 1927 IT PURCHASED
FROM THE LUMBER COMPANY AND LATER RESOLD MORE THAN $3,000,000 OF THE
LONGVIEW LOCAL IMPROVEMENT DISTRICT BONDS. 

THE LONG-BELL LUMBER COMPANY BALANCE-SHEET FOR 1929, TO WHICH WE HAVE
REFERRED, DISCLOSED TOTAL ASSETS OF MORE THAN $116,000,000 WITH CURRENT
ASSETS OF CASH AND INVENTORIES AMOUNTING TO MORE THAN $15,000,000. 
CURRENT LIABILITIES WERE LESS THAN $8,000,000 INCLUDING BANK LOANS OF
$4,000,000.  THE FUNDED DEBT OF LONG-BELL AND ALL SUBSIDIARIES WAS LESS
THAN $42,000,000, AND CAPITAL AND SURPLUS WERE SHOWN IN EXCESS OF
$59,000,000. 

THERE WAS MUCH EVIDENCE FROM WHICH THE JURY COULD HAVE FOUND THAT THE
LUMBER COMPANY, PRIOR TO THE FIRST SALE OF THE BONDS TO PETITIONER IN
MAY, 1930, HAD, BY MORE OR LESS REGULAR REPORTS, KEPT RESPONDENT
CLOSELY ADVISED OF DEVELOPMENTS AT LONGVIEW AND GENERALLY OF ITS
FINANCIAL CONDITION.  AMONG THE DATA TRANSMITTED WERE DOCUMENTS
PRODUCED FROM RESPONDENT'S FILES SHOWING THAT IN 1927 SALES OF LONGVIEW
REAL ESTATE BY THE LUMBER COMPANY'S REAL ESTATE SUBSIDIARY HAD
PRACTICALLY CEASED; THAT DURING 1928 PROPERTIES ALREADY SOLD WERE BEING
TAKEN BACK ON THE FORFEITURE OF INSTALLMENT SALES CONTRACTS, AND THAT
IN APRIL AND MAY OF THAT YEAR FORFEITURES AND REPURCHASES IN NUMBER AND
VALUATION OF PROPERTIES EQUALLED NEW SALES; THAT IN 1928 RESPONDENT
CONDUCTED MARKET OPERATIONS IN THE SECURITIES OF THE LUMBER COMPANY AND
ASKED $75,000 AS COMPENSATION FOR BRINGING ABOUT AN IMPROVEMENT IN
THEIR MARKET QUOTATIONS. 

DURING THE EARLY MONTHS OF 1930 AND BEFORE THE FIRST SALE OF BONDS TO
PETITIONER, WHICH OCCURRED ON MAY 17TH, THERE WERE FREQUENT
COMMUNICATIONS OF INFORMATION FROM THE LONG-BELL LUMBER COMPANY TO
RESPONDENT FROM WHICH THE JURY COULD HAVE FOUND THAT RESPONDENT WAS
ADVISED OF THE PROGRESSIVE FINANCIAL DETERIORATION AND LOSS OF CREDIT
OF THE LONG-BELL LUMBER COMPANY.  THESE INCLUDED DISCUSSION OF AN
ATTEMPT TO CONSOLIDATE THE LONG-BELL COMPANY WITH OTHER LUMBER
PRODUCERS IN THE EFFORT, AS STATED BY LONG-BELL'S OFFICERS TO
RESPONDENT, "TO MEET QUICKLY AN ACUTE AND DISTRESSING SITUATION";
EFFORTS TO PROCURE LOANS AND TO CONVERT LONG-BELL PROPERTY INTO CASH;
"TO STRENGTHEN THE LUMBER COMPANY'S CURRENT FINANCIAL CONDITION BY
CONVERTING PHYSICAL ASSETS INTO WORKING CAPITAL TO MEET CURRENT
REQUIREMENTS"; UNSUCCESSFUL EFFORTS IN MARCH AND APRIL TO MARKET
SECURED BONDS AND NOTE ISSUES OF THE LONG-BELL LUMBER COMPANY,
UNSUCCESSFUL EFFORTS BY RESPONDENT IN MAY TO SECURE FINANCING FOR LONG
BELL BY NEW YORK BANKING HOUSES.  THERE WAS EVIDENCE FROM WHICH THE
JURY COULD HAVE FOUND THAT RESPONDENT HAD BEEN ADVISED BY THE LONG-BELL
COMPANY, THAT THE OFFICERS OF THE CHASE NATIONAL BANK OF NEW YORK AND A
LARGE ST. LOUIS BANK HAD WITHDRAWN AND REFUSED TO RENEW THE LONG-BELL
COMPANY'S LINE OF BANK CREDIT AND THAT THE CHASE BANK HAD ADVISED
STRENGTHENING OF THE LUMBER COMPANY'S CURRENT FINANCIAL POSITION, AND
HAD SUGGESTED THE FORMATION FOR CREDIT PURPOSES OF A SUBSIDIARY
CORPORATION TO WHICH THE LONG-BELL COULD TRANSFER ITS LIQUID ASSETS FOR
PURPOSES OF BORROWING OPERATIONS.  THIS ADVICE WAS CARRIED INTO EFFECT
IN OCTOBER, 1930.  NONE OF THESE CIRCUMSTANCES SHOWING THE CHANGED
FINANCIAL CONDITION OF THE LONG-BELL LUMBER COMPANY AFTER ITS DECEMBER
31, 1929 STATEMENT OR ANY OF THE INFORMATION OF RESPONDENT WITH RESPECT
TO THEM WERE REVEALED BY RESPONDENT OR KNOWN TO PETITIONER BEFORE
PURCHASING THE IMPROVEMENT BONDS. 

PETITIONER PURCHASED FROM RESPONDENT $353,000 OF THE BONDS, $100,000
ON MAY 17, 1930, $26,000 IN SEPTEMBER, $211,000 IN OCTOBER, $13,000 IN
JANUARY, 1931 AND $3,000 IN FEBRUARY.  OF THESE, $279,000 WERE BONDS OF
DISTRICTS 11 AND 19, WHICH WERE THE TWO DISTRICTS WHICH EMBRACED
SUBSTANTIALLY THE WHOLE CITY OF LONGVIEW.  IN 1934 THE LONG-BELL LUMBER
COMPANY FILED A PETITION FOR REORGANIZATION UNDER SEC. 77B OF THE
BANKRUPTCY ACT.  BY THE DECREE IN THE REORGANIZATION PROCEEDING THE
LUMBER COMPANY WAS RELIEVED OF ITS GUARANTEE OF THE IMPROVEMENT
DISTRICT BONDS, THE PETITIONER RECEIVING 8 AND 4/10THS SHARES OF COMMON
STOCK IN THE REORGANIZED CORPORATION IN LIEU OF THE GUARANTEE ON EACH
$1,000 BOND.    PETITIONER'S CASE AS SUBMITTED TO THE JURY WAS IN
SUBSTANCE THAT IT HAD BEEN INDUCED TO PURCHASE THE BONDS BY UNTRUE
STATEMENTS KNOWINGLY OR RECKLESSLY MADE BY RESPONDENT'S OFFICERS AND
AGENTS AS FOLLOWS:  (1) THAT THE EXTENSIVE MILL PROPERTIES OF THE LONG
BELL LUMBER COMPANY, THE WEYERHAEUSER TIMBER COMPANY, THE LONGVIEW
FIBRE COMPANY AND OTHERS WERE LOCATED IN LONGVIEW AND SUBJECT TO
ASSESSMENT IN LOCAL IMPROVEMENT DISTRICTS NOS. 11 OR 19, THE LIMITS OF
WHICH WERE SUBSTANTIALLY CO-EXTENSIVE WITH THE LIMITS OF THE CITY; (2)
THAT LONGVIEW HAD A FRONTAGE OF 7 1/4 MILES UPON THE COLUMBIA RIVER
WHICH, IF TRUE, WOULD LOCATE THE MILL PROPERTIES WITHIN THE CORPORATE
LIMITS; (3) THAT THE IMPROVEMENT BONDS WERE THE ONLY BONDS CONSTITUTING
A CHARGE OR LIEN UPON THE LANDS IN THE IMPROVEMENT DISTRICTS OF THE
CITY; AND, FINALLY, (4) THAT RESPONDENT'S OFFICERS AND AGENTS HAD IN
MAY, 1930, MADE REPRESENTATIONS OF THE STRONG FINANCIAL POSITION SHOWN
IN THE 1929 BALANCE SHEET OF THE LONG-BELL LUMBER COMPANY WHICH HAD
GUARANTEED THE IMPROVEMENT BONDS, WITHOUT DISCLOSING TO PETITIONER THE
KNOWLEDGE WHICH IT THEN HAD OR LATER ACQUIRED BEFORE THE SALE OF THE
BONDS, THAT THE LONG-BELL COMPANY WAS IN FACT IN A DECLINING AND
PRECARIOUS FINANCIAL CONDITION. 

THE COURT OF APPEALS HELD THAT THE VARIOUS STATEMENTS AND INFORMATION
GIVEN BY RESPONDENT'S OFFICERS AND AGENTS, AFTER RESPONDENT'S OFFERING
CIRCULAR HAD BEEN SUBMITTED TO PETITIONER, WERE SUBSTANTIALLY THE SAME
AS THOSE MADE IN THE CIRCULAR ITSELF AND THEREFORE WERE UNDER THE
PROTECTION OF THE HEDGE CLAUSE WHICH HAD BEEN PRINTED IN THE CIRCULAR. 
STIPULATIONS BY WHICH ONE ATTEMPTS TO AVOID THE CONSEQUENCES OF FALSE
STATEMENTS FRAUDULENTLY OR RECKLESSLY MADE ARE STRICTLY CONSTRUED IN
THE IOWA COURTS.  JORDAN V. NELSON, 178 N.W. 544.  WE ARE CITED TO NO
IOWA AUTHORITY TO THE EFFECT THAT SUCH A CLAUSE APPLIES OR AFFORDS
PROTECTION TO ANY EXCEPT THE STATEMENTS TO WHICH IT REFERS.  BUT WE
ASSUME FOR PRESENT PURPOSES, WITHOUT DECIDING, AS THE COURT OF APPEALS
HELD, THAT THE HEDGE CLAUSE EXTENDED ITS PROTECTION TO LATER STATEMENTS
MADE BY RESPONDENT LIKE THOSE CONTAINED IN THE CIRCULAR.  BUT IN
REACHING ITS CONCLUSION THE COURT OVERLOOKED THE FACT THAT THE
DOCUMENTS AND STATEMENTS WHICH FOLLOWED THE SUBMISSION OF THE CIRCULAR
TO PETITIONER WERE IN RESPONSE TO A REQUEST BY PETITIONER FOR
ADDITIONAL INFORMATION AND CONTAINED ITEMS OF INFORMATION NOT FOUND IN
THE CIRCULAR. 

AMONG THEM WAS THE DECEMBER 31, 1929, FINANCIAL STATEMENT OF THE LONG
BELL LUMBER COMPANY, THE ADVERTISING MAP BEARING A LEGEND INDICATING
THE CITY'S FRONTAGE ON THE RIVER AND THE LOCATION OF THE TAXING
DISTRICTS WITHIN THE CITY LIMITS, OTHER ADVERTISING MATERIAL CONTAINING
PICTURES INDICATING THE LOCATION OF THE LONG-BELL AND OTHER PLANTS
WITHIN THE CITY LIMITS, AND THE STATEMENT MADE TO PETITIONER BY
RESPONDENT'S SALES MANAGER THAT THE CITY, WHICH WAS CO-EXTENSIVE WITH
THE IMPROVEMENT DISTRICT, HAD NO FUNDED DEBT.  THE COURT ALSO FAILED TO
CONSIDER THE QUESTION WHETHER, UNDER IOWA LAW, THE HEDGE CLAUSE
AFFORDED TO RESPONDENT PROTECTION FROM UNTRUE STATEMENTS RECKLESSLY
MADE, WHETHER THE STATEMENTS IN THE CIRCULAR AND OTHERS LATER SUBMITTED
TO PETITIONER WERE RECKLESSLY MADE, AND WHETHER THE HEDGE CLAUSE ITSELF
CONTAINED STATEMENTS KNOWN TO RESPONDENT TO BE UNTRUE AND HAD A
MATERIAL INFLUENCE IN INDUCING PETITIONER'S PURCHASE OF THE BONDS. 

IT IS OBVIOUS THAT THE JURY COULD HAVE FOUND THAT STATEMENTS HAVING
PERSUASIVE INFLUENCE IN PROMOTING THE SALE OF THE IMPROVEMENT BONDS TO
THE PETITIONER WERE:  THE STATEMENT AS TO THE LOCATION ALONG THAT
WATERFRONT AND WITHIN THE IMPROVEMENT DISTRICT OF EXTENSIVE
MANUFACTURING PLANTS WHICH WOULD THUS BE SUBJECT TO ASSESSMENT FOR
PAYMENT OF THE BONDS, THE STATEMENT THAT THE CITY HAD NO FUNDED
INDEBTEDNESS OTHER THAN THE IMPROVEMENT BONDS, AND THE REPRESENTATIONS
AS TO THE STRONG FINANCIAL POSITION OF THE LONG-BELL LUMBER COMPANY
WHICH WAS GUARANTOR OF PAYMENT OF THE BONDS.  IF, AS THE JURY FOUND,
PETITIONER RELIED ON THESE REPRESENTATIONS TO ITS INJURY, IT IS
IMMATERIAL, AS APPEARS TO BE CONCEDED, THAT PETITIONER DID NOT MAKE ITS
OWN INVESTIGATION TO ASCERTAIN WHETHER THEY WERE TRUE.  GARDNER V.
TRENARY, 65 IOWA 646; 22 N.W. 912; CREAMER V. STEVENS, 192 IOWA 920;
185 N.W. 581; FORD V. OTT, 186 IOWA 820; 173 N.W. 121. 

THE TRIAL COURT CORRECTLY CHARGED THE JURY IN ACCORDANCE WITH THE
IOWA DECISIONS, IN SUBSTANCE, THAT AS A PREREQUISITE TO A VERDICT FOR
PETITIONER, IT MUST FIND THAT THE REPRESENTATIONS IN QUESTION WERE
KNOWN BY RESPONDENT TO BE FALSE OR WERE MADE AS TRUE WITH NO REASONABLE
GROUND FOR BELIEVING THEM TO BE TRUE, BUT THAT IF THEY WERE BELIEVED BY
RESPONDENT TO BE TRUE AND WERE MADE WITHOUT RECKLESS DISREGARD AS TO
THEIR TRUTH OR FALSITY, AND WITHOUT INTENTION TO DECEIVE PETITIONER,
PETITIONER COULD NOT RECOVER.  THE QUESTION OF RESPONDENT'S
RECKLESSNESS WAS THUS SUBMITTED TO THE JURY AND WE THINK PROPERLY SO
UPON THE EVIDENCE.  HANSON V. KLINE, 136 IOWA 101; 113 N.W. 504; DAVIS
V. CENTRAL LAND CO., 162 IOWA 269; 143 N.W. 1073; HAIGH V. WHITE WAY
LAUNDRY CO., 164 IOWA 143; 145 N.W. 473. 

RESPONDENT'S WITNESS, A VICE PRESIDENT IN CHARGE OF ITS MUNICIPAL
BOND ISSUES, TESTIFIED THAT HE ASSEMBLED THE DATA APPEARING IN THE
CIRCULAR SUBMITTED BY RESPONDENT TO PETITIONER WITHOUT HIS EVER HAVING
VISITED THE CITY OF LONGVIEW AND WITHOUT MAKING ANY INQUIRY OF THE CITY
OFFICIALS OR REPRESENTATIVES AS TO THE TRUTH OF THE MATTERS STATED IN
THE CIRCULAR.  SO FAR AS APPEARS NO SUCH INQUIRY WAS MADE BY RESPONDENT
OR IN ITS BEHALF BEFORE THE SALE OF THE BONDS TO PETITIONER.  THE
WITNESS STATED THAT HE HAD OBTAINED THE INFORMATION FROM THE OFFICES OF
THE LONG-BELL LUMBER COMPANY AT KANSAS CITY AND LONGVIEW; THAT HE HAD
SUBMITTED THE CIRCULAR WHEN PREPARED TO THE GENERAL COUNSEL OF THE LONG
BELL LUMBER COMPANY AT KANSAS CITY, WHO HAD APPROVED IT.  WHETHER
COUNSEL HAD ANY PERSONAL KNOWLEDGE OF THE MATTERS STATED IN THE
CIRCULAR, OR WHAT HE STATED TO RESPONDENT WITH RESPECT TO IT, DOES NOT
APPEAR.  THE INFORMATION ABOUT THE 7 1/4 MILE FRONTAGE OF THE CITY ON
THE COLUMBIA RIVER AND THE LOCATION OF THE LONG-BELL, WEYERHAEUSER AND
OTHER PLANTS WITHIN THE LIMITS OF THE IMPROVEMENT DISTRICTS WAS
COMPILED BY THE WITNESS FROM ADVERTISING COPY SUGGESTED BY THE
ADVERTISING MANAGER OF THE LONG-BELL LUMBER COMPANY.  HIS RECOLLECTION
WAS THAT SOME OF THIS INFORMATION CAME FROM AN ADDRESS MADE "BY ONE OF
THE LONG-BELL LAND AGENTS AT LONGVIEW." 

NO TESTIMONY WAS FORTHCOMING TO SHOW THAT ANY EXECUTIVE OFFICER OF
THE LONG-BELL LUMBER COMPANY GAVE ASSURANCES OF THE TRUTH OR ACCURACY
OF THIS INFORMATION, OR THAT ANY OF THEM BELIEVED IT TO BE TRUE.  WHEN
THE WITNESS SOUGHT THIS INFORMATION IN OCTOBER, 1930, HE PROMPTLY
OBTAINED THE CORRECT INFORMATION FROM THE LONGVIEW TAX AUTHORITIES. 
THE EVIDENCE IS CONFLICTING WHETHER THIS INFORMATION EVER WAS
COMMUNICATED TO PETITIONER, AND IF SO WHETHER BEFORE ITS OCTOBER
PURCHASE OF THE BONDS.  PETITIONER'S TESTIMONY WAS THAT IT FIRST
ACQUIRED THE INFORMATION IN JUNE, 1931.  TWO OF RESPONDENT'S VICE
PRESIDENTS HAD VISITED LONGVIEW TWO OR MORE TIMES IN 1922 AND 1924 IN
CONNECTION WITH THE PURCHASE BY RESPONDENT OF LONG-BELL BOND ISSUES. 
BOTH TESTIFIED AS WITNESSES, BUT NEITHER OF THEM DENIED KNOWLEDGE OF
THE LOCATION OF THE CORPORATE LIMITS OF THE CITY OF LONGVIEW AND OF THE
MILL PROPERTIES.  ANOTHER VICE PRESIDENT IN CHARGE OF PURCHASES OF
MUNICIPAL ISSUES HAD MADE A TRIP TO LONGVIEW IN 1925 AND WHILE THERE
HAD ENTERED INTO A CONTRACT WITH THE LUMBER COMPANY FOR THE PURCHASE
FROM IT BY RESPONDENT OF THE IMPROVEMENT BONDS.  HE ALSO ARRANGED IN
THAT YEAR FOR THE PURCHASE FROM LONG-BELL LUMBER COMPANY BY RESPONDENT
OF THE DIKING DISTRICT BONDS, ALREADY REFERRED TO.  THIS VICE
PRESIDENT, HAVING DIED, DID NOT TESTIFY, BUT THERE WAS TESTIMONY BY HIS
ASSISTANT AND SUCCESSOR THAT THE LOCATION OF THE DIKING DISTRICT WAS
ASCERTAINED BY RESPONDENT AT THAT TIME. 

THE ONLY IDENTIFIED SOURCES OF RESPONDENT'S INFORMATION AS TO THE
LOCATION OF THE CITY ON THE RIVER AND THE LOCATION OF THE MANUFACTURING
PLANTS WITH RESPECT TO THE TAXING DISTRICTS, WERE AN ADVERTISING AGENT
OF THE LONG-BELL LUMBER COMPANY, A LAND AGENT ACTING EITHER FOR THE
LONG-BELL LUMBER COMPANY OR ITS SUBSIDIARY, AND A MAP WITH DESCRIPTIVE
MATERIAL PRINTED ON IT APPEARING AS A PART OF A PUBLISHED ADVERTISEMENT
OF THE LONGVIEW COMPANY, WHICH PROMOTED THE REAL ESTATE ENTERPRISE IN
LONGVIEW.  NONE OF THIS INFORMATION WAS VERIFIED BY ANY RESPONSIBLE
OFFICIAL OF THE LONG-BELL LUMBER COMPANY NOR BY ANY OFFICIAL OR
REPRESENTATIVE OF THE CITY OF LONGVIEW, AND NO SUCH VERIFICATION
APPEARS TO HAVE BEEN SOUGHT BY RESPONDENT.  WE THINK IT WAS FOR THE
JURY TO SAY WHETHER STATEMENTS RESTING UPON SUCH FLIMSY SUPPORT, MADE
AS THE BASIS FOR A PUBLIC OFFERING OF MUNICIPAL BONDS AGGREGATING MORE
THAN $3,000,000, WERE RECKLESSLY MADE, OR WERE WITHOUT REASONABLE BASIS
FOR THE ASSERTION OF THEIR TRUTH TO PROSPECTIVE INVESTORS. 

THE COURT BELOW THOUGHT THE STATEMENT MADE BY RESPONDENT'S SALES
MANAGER, DESPITE THE OUTSTANDING DIKING DISTRICT BONDS, THAT THE CITY
WAS WITHOUT FUNDED DEBT OTHER THAN THE IMPROVEMENT DISTRICT BONDS, WAS
CARELESSLY MADE BUT TRIVIAL IN ITS EFFECT IN INDUCING THE PURCHASE OF
THE BONDS.  BUT WE CANNOT SAY THAT THE TRIAL COURT SHOULD NOT HAVE LEFT
IT TO THE JURY TO DECIDE WHETHER THIS STATEMENT WAS KNOWINGLY FALSE OR
RECKLESSLY MADE, OR WHETHER IN ALL THE CIRCUMSTANCES IT MATERIALLY
INFLUENCED PETITIONER'S PURCHASE OF THE BONDS.  MOREOVER, WE THINK THAT
IN ALL THE CIRCUMSTANCES OF THE CASE THE TRIAL COURT RIGHTLY LEFT IT TO
THE JURY TO SAY WHETHER IN FACT RESPONDENT IN THE COURSE OF ITS
INVESTIGATION, THROUGH ITS VICE PRESIDENTS OR OTHERS, OF ISSUES OF
BONDS TOTALLING MORE THAN $30,000,000, ISSUED EITHER BY THE CITY OF
LONGVIEW OR THE LONG-BELL LUMBER COMPANY OR BEARING ITS GUARANTEE,
BECAME AWARE OF THE ACTUAL LOCATION OF THE PROPERTIES IN QUESTION. 

PETITIONER ALSO INSISTS THAT THE JURY COULD HAVE FOUND THAT THE HEDGE
CLAUSE ITSELF WAS KNOWN BY RESPONDENT TO BE UNTRUE WHEN MADE.  THE
CLAUSE DECLARED THAT THE STATEMENTS CONTAINED IN THE CIRCULAR "ARE
BASED ON INFORMATION WHICH WE REGARD AS RELIABLE AND  ...  WE OURSELVES
HAVE RELIED UPON THEM IN THE PURCHASE OF THIS SECURITY."  YET,
RESPONDENT'S VICE PRESIDENT IN CHARGE OF MUNICIPAL ISSUES, WHO HAD
PREPARED THE OFFERING CIRCULAR, TESTIFIED, WITHOUT CONTRADICTION, "WE
BOUGHT AND SOLD THE BONDS SOLELY ON THE GUARANTEE OF THE LONG-BELL
LUMBER COMPANY PAYING NO ATTENTION WHATEVER TO THE VALUATION OF THE
LANDS UPON WHICH THE ASSESSMENTS WERE LAID."  UPON THIS STATE OF THE
RECORD THE JURY COULD HAVE FOUND THAT THE HEDGE CLAUSE ITSELF WAS
UNTRUE AND WOULD MISLEAD PROSPECTIVE PURCHASERS TO THE ERRONEOUS BELIEF
THAT HALSEY, STUART & CO. REGARDED THE BONDS AS WORTHY INVESTMENTS ON
THEIR MERITS EITHER INDEPENDENTLY OR IN CONJUNCTION WITH THE
GUARANTEE.  IT COULD HAVE FOUND ALSO THAT ITS MATERIALITY WAS OF ADDED
IMPORTANCE IN INFLUENCING THE SALE OF THE BONDS IN VIEW OF THE
KNOWLEDGE OF RESPONDENT, NOT DISCLOSED TO PETITIONER, THAT THE LONG
BELL LUMBER COMPANY WAS ALREADY IN FINANCIAL STRAITS. 

WHILE IT IS ARGUABLE, AS THE COURT BELOW THOUGHT, WHETHER IN VIEW OF
ALL THE CIRCUMSTANCES PETITIONER PLACED MORE OR LESS RELIANCE UPON THE
OBLIGATIONS ATTACHING TO A MUNICIPAL SECURITY ON THE ONE HAND OR UPON
THE GUARANTEE OF THE LONG-BELL LUMBER COMPANY ON THE OTHER, OR WHETHER
IT WOULD HAVE SCRUTINIZED MORE SEARCHINGLY THE GUARANTEE HAD IT KNOWN
THAT RESPONDENT DEPENDED ON THAT ALONE, THESE ARE ARGUMENTS FOR THE
JURY AND NOT THE COURT. 

THE COURT BELOW HELD THAT THE FAILURE OF RESPONDENT TO REVEAL TO
PETITIONER ITS KNOWLEDGE OF THE DECLINING FINANCIAL STATUS OF THE LONG
BELL LUMBER COMPANY, WHICH RESPONDENT ACQUIRED IN THE EARLY MONTHS OF
1930, FELL SHORT OF ESTABLISHING FRAUD OR BREACH OF LEGAL DUTY ON ITS
PART.  THE COURT REACHED THIS CONCLUSION ON THE GROUNDS THAT THERE WAS
NO FIDUCIARY RELATIONSHIP BETWEEN RESPONDENT AND PETITIONER; THAT THE
1929 BALANCE SHEET OF THE LUMBER COMPANY WAS NOT SHOWN TO BE AN
UNTRUTHFUL STATEMENT OF THE FINANCIAL CONDITION OF THE COMPANY AT THAT
TIME; THAT RESPONDENT DID NOT SEEK ADDITIONAL INFORMATION AS TO THE
FINANCIAL CONDITION OF THE COMPANY, AND IF IT HAD DONE SO COULD READILY
HAVE ASCERTAINED ITS CONDITION FROM OTHER SOURCES. 

BUT WE THINK THAT, UNDER IOWA LAW, THESE FACTORS DID NOT, IN THE
CIRCUMSTANCES OF THIS CASE, RELIEVE RESPONDENT OF THE DUTY TO SPEAK. 
AS WE HAVE SAID, PETITIONER WAS UNDER NO DUTY TO MAKE AN INDEPENDENT
INVESTIGATION OF THE TRUTH OF RESPONDENT'S STATEMENTS IF, AS THE JURY
FOUND, IT RELIED ON THOSE STATEMENTS IN THE PURCHASE OF THE BONDS. 
RESPONDENT FURNISHED THE BALANCE SHEET IN RESPONSE TO PETITIONER'S
REQUEST FOR INFORMATION ABOUT THE LUMBER COMPANY AFTER EMPHASIZING TO
PETITIONER THE COMPANY'S GUARANTEE OF THE IMPROVEMENT BONDS AND STATING
"WE BELIEVE YOU HAVE BEFORE YOU PRACTICALLY ALL THE DATA COVERING THIS
ISSUE OF BONDS."  FROM THE EVIDENCE THE JURY COULD HAVE FOUND THAT THE
BALANCE SHEET WAS SUBMITTED TO PETITIONER AS ONE OF THE BASES OF THE
PENDING NEGOTIATION AND AS A REPRESENTATION, THAT IT DISCLOSED, SO FAR
AS KNOWN TO RESPONDENT, THE FINANCIAL CONDITION OF THE COMPANY, THAT
NOTWITHSTANDING SUCH REPRESENTATION RESPONDENT THEN KNEW THAT THE
COMPANY'S FINANCIAL CONDITION HAD SO STEADILY AND SERIOUSLY DECLINED
AFTER THE DATE OF THE BALANCE SHEET AS TO IMPAIR SUBSTANTIALLY THE
VALUE OF THE GUARANTEE, AND THAT THIS STATEMENT OF A HALF TRUTH HAD
MATERIALLY ASSISTED IN THE SALE OF THE BONDS TO PETITIONER.    THE
TRIAL COURT INSTRUCTED THE JURY: 

"IT IS THE DUTY OF ONE SELLING SECURITIES, WHO ATTEMPTS TO SUPPLY A
PROSPECTIVE PURCHASER WITH FACTS CONCERNING THE ISSUE, NOT ONLY TO
STATE TRUTHFULLY WHAT HE ACTUALLY TELLS, BUT ALSO NOT TO SUPPRESS ANY
FACTS WITHIN HIS KNOWLEDGE WHICH WILL MATERIALLY CHANGE OR ALTER THE
EFFECT OF THE FACTS ACTUALLY STATED.  TO TELL LESS THAN THE WHOLE TRUTH
MAY CONSTITUTE A FALSE AND FRAUDULENT REPRESENTATION.  A PARTIAL AND
FRAGMENTARY DISCLOSURE OF CERTAIN FACTS CONCERNING AN ISSUE OF
SECURITIES, ACCOMPANIED BY THE WILLFUL CONCEALMENT OF MATERIAL FACTS
WHICH CHANGE THE EFFECT OF THE FACTS ACTUALLY STATED, IS AS MUCH A
FRAUD AS AN ACTUAL POSITIVE MISREPRESENTATION."  BY THIS INSTRUCTION
AND OTHERS OF LIKE TENOR THE COURT LEFT THE JURY FREE TO APPLY TO THE
EVIDENCE THE GENERALLY ACCEPTED DOCTRINE ADOPTED BY THE AMERICAN LAW
INSTITUTE, RESTATEMENT OF TORTS, SECS. 529, 551.  SECTION 529 STATES: 

"A STATEMENT IN A BUSINESS TRANSACTION WHICH, WHILE STATING THE TRUTH
SO FAR AS IT GOES, THE MAKER KNOWS OR BELIEVES TO BE MATERIALLY
MISLEADING BECAUSE OF HIS FAILURE TO STATE QUALIFYING MATTER IS A
FRAUDULENT MISREPRESENTATION."  SUCH A STATEMENT OF A HALF TRUTH IS AS
MUCH A MISREPRESENTATION AS IF THE FACTS STATED WERE UNTRUE.  THE
COURT'S CHARGE WAS IN CONFORMITY TO IOWA LAW AS DISCLOSED BY ITS
JUDICIAL OPINIONS.  SEE HOWARD V. MCMILLEN, 101 IOWA 453; 70 N.W. 623;
NOBLE V. RENNER, 177 IOWA 509; 159 N.W. 214; FOREMAN V. DUGAN, 205 IOWA
929; 218 N.W. 912.  NO ARGUMENT MADE OR AUTHORITY CITED HERE PERSUADES
US THAT THE SUPREME COURT OF IOWA WOULD, UPON THE EVIDENCE PRESENTED,
APPLY ANY DIFFERENT RULE.  SEE WICHITA ROYALTY CO. V. CITY NATIONAL
BANK, 306 U.S. 103, 107; CF. WEST V. AMERICAN TELEPHONE & TELEGRAPH
CO., 311 U.S. 223. 

RESPONDENT HAS RAISED NUMEROUS OTHER QUESTIONS WHICH WERE NOT
CONSIDERED BY THE COURT BELOW.  THIS CAUSE WILL THEREFORE BE REVERSED
AND REMANDED TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 
..END :


















LABOR BOARD V. EXPRESS PUB. CO., 312 U.S. 426 


NO. 442.  ARGUED FEBRUARY 14, 1941.  - DECIDED MARCH 3, 1941.  - 111
F.2D 588, REVERSED. 


1.  A RESPONDENT EMPLOYER CAN NOT ATTACK, AS WITHOUT SUPPORT IN THE
EVIDENCE, FINDINGS OF THE NATIONAL LABOR RELATIONS BOARD WHICH WERE THE
BASIS OF ITS ORDER AND OF A JUDGMENT SUSTAINING IT WHICH THE EMPLOYER
HAS NOT SOUGHT TO REVIEW.  P. 431. 

2.  WHERE AN EMPLOYER IS FOUND TO HAVE REFUSED TO BARGAIN
COLLECTIVELY IN VIOLATION OF SEC. 8(5) OF THE NATIONAL LABOR RELATIONS
ACT, THE BOARD'S ORDER MAY PROPERLY REQUIRE HIM TO CEASE AND DESIST
FROM SUCH REFUSAL IN ADDITION TO AN AFFIRMATIVE REQUIREMENT THAT HE
BARGAIN WITH HIS EMPLOYEES' REPRESENTATIVES.  P. 432. 

3.  AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD WHICH, WHEN
JUDICIALLY CONFIRMED, THE COURTS MAY BE CALLED ON TO ENFORCE BY
CONTEMPT PROCEEDINGS, MUST, LIKE THE INJUNCTION ORDER OF A COURT, STATE
WITH REASONABLE SPECIFICITY THE ACTS WHICH THE RESPONDENT IS TO DO OR
REFRAIN FROM DOING.  P. 433. 

4.  THE AUTHORITY CONFERRED ON THE BOARD TO RESTRAIN AN UNFAIR LABOR
PRACTICE IN WHICH THE EMPLOYER IS FOUND TO HAVE BEEN ENGAGED, DOES NOT
SUPPORT AN ORDER PURPORTING TO RESTRAIN HIM FROM OTHER UNFAIR LABOR
PRACTICES IN WHICH HE IS NOT FOUND TO HAVE BEEN ENGAGED AND WHICH ARE
UNRELATED TO THE PROVEN UNFAIR LABOR PRACTICE.  P. 433. 

5.  THE NATIONAL LABOR RELATIONS ACT DOES NOT GIVE THE BOARD AN
AUTHORITY, WHICH COURTS CAN NOT RIGHTLY EXERCISE, TO ENJOIN VIOLATIONS
OF ALL THE PROVISIONS OF THE STATUTE MERELY BECAUSE THE VIOLATION OF
ONE HAS BEEN FOUND.  TO JUSTIFY AN ORDER RESTRAINING OTHER VIOLATIONS
IT MUST APPEAR THAT THEY BEAR SOME RESEMBLANCE TO THAT WHICH THE
EMPLOYER HAS COMMITTED, OR THAT DANGER OF THEIR COMMISSION IN THE
FUTURE IS TO BE ANTICIPATED FROM THE COURSE OF HIS CONDUCT IN THE
PAST.  P. 437. 

6.  THE ORDER OF THE BOARD DIRECTING THE EMPLOYER TO POST NOTICES
INFORMING ITS EMPLOYEES THAT IT WILL "CEASE AND DESIST" FROM REFUSING
TO BARGAIN WITH THE AUTHORIZED REPRESENTATIVES OF ITS EMPLOYEES, IS
MODIFIED SO AS TO PROVIDE THAT THE POSTED NOTICES SHALL STATE THAT THE
EMPLOYER "WILL NOT ENGAGE IN CONDUCT FROM WHICH IT IS ORDERED TO CEASE
AND DESIST."  P. 438. 

NATIONAL LABOR RELATIONS BOARD V. EXPRESS PUBLISHING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 311 U.S. 638, TO REVIEW A JUDGMENT ENFORCING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD, BUT IN PART ONLY AND WITH
MODIFICATION. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD ORDERED RESPONDENT AFFIRMATIVELY
TO BARGAIN COLLECTIVELY WITH THE SAN ANTONIO NEWSPAPER GUILD, THE
AUTHORIZED REPRESENTATIVE OF RESPONDENT'S EMPLOYEES.  IN ADDITION IT
ORDERED RESPONDENT, (1) TO "CEASE AND DESIST" FROM REFUSING TO BARGAIN
COLLECTIVELY WITH THE GUILD; (2) TO "CEASE AND DESIST" FROM
"INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS TO SELF-ORGANIZATION," AND OTHER RIGHTS
GUARANTEED BY SEC. 7 OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449;
29 U.S.C. SUPP. V, SEC. 151, ET SEQ.; (3) TO POST NOTICES STATING,
AMONG OTHER THINGS, THAT RESPONDENT WILL "CEASE AND DESIST AS
AFORESAID" AND WILL BARGAIN COLLECTIVELY WITH THE ORGANIZED
REPRESENTATIVE OF ITS EMPLOYEES.  ON THE RECORD BEFORE US THE QUESTION
FOR OUR DECISION IS WHETHER THE PROVISIONS OF THE ORDER WHICH WE HAVE
ENUMERATED ARE SUPPORTED BY THE BOARD'S FINDING THAT THE RESPONDENT HAD
REFUSED TO BARGAIN COLLECTIVELY WITH THE AUTHORIZED REPRESENTATIVE OF
ITS EMPLOYEES, AND HAD INTERFERED WITH SUCH BARGAINING NEGOTIATION, AND
HAD THEREBY INTERFERED WITH THE EXERCISE OF THE RIGHTS GUARANTEED BY
SEC. 7 OF THE ACT. 

THE BOARD ISSUED ITS COMPLAINT CHARGING RESPONDENT, A PUBLISHER OF A
NEWSPAPER, WITH REFUSAL TO BARGAIN COLLECTIVELY WITH THE GUILD AS THE
AUTHORIZED REPRESENTATIVE OF THE EMPLOYEES IN RESPONDENT'S EDITORIAL
DEPARTMENT, AND THAT BY SUCH REFUSAL AND BY STATEMENTS MADE BY
RESPONDENT AT A MEETING OF THOSE EMPLOYEES IT "DID INTERFERE WITH,
RESTRAIN AND COERCE" ITS EMPLOYEES IN THE EXERCISE OF THE RIGHTS
GUARANTEED BY SEC. 7 OF THE ACT  FN1  AND DID ENGAGE IN UNFAIR LABOR
PRACTICES DEFINED BY SECS. 8(1) AND 8(5).  THE USUAL PROCEEDINGS AND
HEARINGS BEFORE THE BOARD RESULTED IN FINDINGS BY THE BOARD TO THE
EFFECT THAT ALTHOUGH RESPONDENT HAD THROUGHOUT RECOGNIZED THE
ORGANIZATION OF RESPONDENT'S EDITORIAL ROOM EMPLOYEES AND THE GUILD AS
THEIR REPRESENTATIVE, AND HAD MET WITH THE GUILD REPRESENTATIVES
WHENEVER REQUESTED FOR THE PURPOSE OF DISCUSSING THE EMPLOYEES'
DEMANDS, IT NEVERTHELESS HAD PERSISTENTLY REFUSED TO DISCUSS IN DETAIL
THE PROPOSALS OF THE GUILD, TO MAKE ANY COUNTER PROPOSALS OR TO ENTER
INTO ANY AGREEMENT WITH IT, AND HAD NOT NEGOTIATED IN GOOD FAITH IN A
GENUINE EFFORT TO COMPOSE THE DIFFERENCES BETWEEN EMPLOYER AND
EMPLOYEES. 

THE BOARD FOUND THAT RESPONDENT HAD REFUSED TO BARGAIN AS REQUIRED BY
SEC. 8(5) OF THE ACT.  IT FOUND THAT RESPONDENT HAD MADE THE STATEMENTS
CHARGED IN THE COMPLAINT AT A MEETING OF ITS EMPLOYEES AND THAT THESE
STATEMENTS WERE AN "INTERFERENCE WITH THE GUILD'S EFFORTS TO
NEGOTIATE."  TREATING RESPONDENT'S ACTION IN REFUSING TO BARGAIN AND IN
INTERFERING WITH THE BARGAINING NEGOTIATIONS AS AN INFRINGEMENT OF ALL
THE RIGHTS GUARANTEED TO THE EMPLOYEES BY THE ACT, IT FOUND BROADLY, IN
THE WORDS OF THE STATUTE, A VIOLATION OF SEC. 8(1) WHICH DECLARES THAT
IT IS AN UNFAIR LABOR PRACTICE FOR THE EMPLOYER "TO INTERFERE WITH,
RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED
IN SECTION 7."  SECTION 7 PROVIDES:  "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 CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION." 

FROM ALL THIS THE BOARD CONCLUDED THAT THE "APPROPRIATE REMEDY" WAS
AN ORDER DIRECTING RESPONDENT "UPON REQUEST, TO BARGAIN COLLECTIVELY
WITH THE  ...  GUILD" AS THE "EXCLUSIVE REPRESENTATIVE" OF RESPONDENT'S
EDITORIAL ROOM EMPLOYEES AND "IF UNDERSTANDINGS ARE REACHED, TO EMBODY
SUCH UNDERSTANDINGS IN A SIGNED AGREEMENT, IF REQUESTED TO DO SO BY THE
GUILD."  HAVING PROVIDED THE RECOMMENDED REMEDY BY THE PROVISIONS OF
ITS ORDER DIRECTING THE RESPONDENT TO BARGAIN AND TO CEASE AND DESIST
FROM REFUSING TO BARGAIN THE BOARD WENT FURTHER AND ORDERED BROADLY
THAT RESPONDENT SHOULD IN EFFECT REFRAIN FROM VIOLATING THE ACT IN ANY
MANNER WHATSOEVER.  THIS IT DID BY PARAGRAPH 1(B) OF THE ORDER WHICH
DIRECTED RESPONDENT TO CEASE AND DESIST FROM 

"IN ANY MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS
EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS TO SELF-ORGANIZATION, TO
FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN
CONCERTED ACTIVITIES FOR THE PURPOSES OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID AND PROTECTION, AS GUARANTEED IN SECTION 7 OF THE ACT."  IT
IS THIS AND THE PROVISIONS OF THE ORDER OTHER THAN THAT PART OF IT
DIRECTING RESPONDENT TO BARGAIN WHICH ARE THE SUBJECTS OF THE PRESENT
CONTROVERSY. 

UPON PETITION OF THE BOARD TO ENFORCE THE ORDER, THE COURT OF APPEALS
FOR THE FIFTH CIRCUIT STRUCK FROM IT ALL THE PROVISIONS EXCEPT THAT
WHICH DIRECTED RESPONDENT TO BARGAIN WITH THE GUILD ON REQUEST, AND TO
EMBODY ANY UNDERSTANDING IN A SIGNED AGREEMENT.  FOR SO MUCH OF THE
ORDER AS DIRECTED THE POSTING OF NOTICES THE COURT SUBSTITUTED A
REQUIREMENT THAT RESPONDENT NOTIFY THE GUILD OF ITS WILLINGNESS TO
COMPLY WITH THE ORDER AS MODIFIED AND TO NOTIFY A SPECIFIED AGENT OF
THE BOARD WHAT STEPS RESPONDENT HAD TAKEN TO COMPLY WITH THE ORDER. 
111 F.2D 588.  WE GRANTED CERTIORARI, 311 U.S. 638, THE QUESTIONS
RAISED BEING OF IMPORTANCE IN THE ADMINISTRATION OF THE NATIONAL LABOR
RELATIONS ACT. 

ALTHOUGH RESPONDENT HAS NOT SOUGHT CERTIORARI IT SEEKS TO RETAIN SUCH
ADVANTAGES AS IT MAY HAVE GAINED FROM THE MODIFICATION OF THE BOARD'S
ORDER BELOW, BY ARGUING BROADLY THAT THE BOARD'S FINDING OF
RESPONDENT'S REFUSAL TO BARGAIN IS WITHOUT SUPPORT IN THE EVIDENCE,
WHICH IT IS SAID SHOWS ONLY THAT RESPONDENT REFUSED TO YIELD TO THE
GUILD DEMANDS AS IT WAS FREE TO DO.  BUT IN THE ABSENCE OF A CROSS
PETITION FOR CERTIORARI BY RESPONDENT THAT QUESTION IS NOT OPEN HERE. 
WITHOUT THE FINDINGS RELATING TO RESPONDENT'S REFUSAL TO BARGAIN THERE
WAS NO BASIS FOR ANY ORDER BY THE BOARD AND WE THINK THAT THE PURPOSE
AND EFFECT OF THE JUDGMENT SUSTAINING SO MUCH OF THE BOARD'S ORDER AS
DIRECTED THAT RESPONDENT BARGAIN WITH THE GUILD WAS TO SUSTAIN THE
FINDINGS ON WHICH IT WAS BASED.  THIS APPEARS BOTH FROM THE OPINION OF
THE COURT OF APPEALS, THE PURPORT OF WHICH IS THAT RESPONDENT IN ITS
NEGOTIATIONS WITH THE GUILD HAD NOT ACTED IN GOOD FAITH AND SO HAD
FAILED TO BARGAIN AS THE STATUTE REQUIRES, AND ALSO FROM THE TERMS OF
THE JUDGMENT MODIFYING THE BOARD'S ORDER.  THE JUDGMENT AFFIRMING THE
BOARD'S ORDER AS MODIFIED RETAINED, AS THE FOUNDATION OF THE JUDGMENT,
THE RECITAL CONTAINED IN THE BOARD'S ORIGINAL ORDER THAT IT WAS MADE
UPON THE BASIS OF ALL THE BOARD'S FINDINGS.  IN THIS STATE OF THE
RECORD OUR REVIEW IS LIMITED TO THE SUFFICIENCY OF THE BOARD'S FINDINGS
TO SUPPORT THE ORDER. 

WE CONCLUDE ALSO THAT IT IS NOT OPEN TO RESPONDENT TO CHALLENGE THE
JUDGMENT BELOW, AS IT ATTEMPTS TO DO, ON THE GROUND THAT THE BOARD'S
COMPLAINT IN CHARGING A FAILURE TO BARGAIN DID NOT SUFFICIENTLY INFORM
RESPONDENT OF THE CONTENTION THAT IT HAD FAILED TO BARGAIN IN GOOD
FAITH.  THIS IS THE CASE BOTH BECAUSE RESPONDENT HAS SOUGHT NO REVIEW
OF THE JUDGMENT BELOW AND BECAUSE IT SUFFICIENTLY APPEARS FROM THE
RECORD THAT IN THE COURSE OF THE HEARINGS BEFORE THE BOARD RESPONDENT
WAS FULLY ADVISED OF THE NATURE OF THE BOARD'S CONTENTION. 

BUT IT IS THE BOARD WHICH HAS BROUGHT THE JUDGMENT BELOW HERE FOR
REVIEW AND ON IT RESTS THE BURDEN OF SHOWING IN WHAT RESPECTS THE
JUDGMENT IS ERRONEOUS.  CF. FEDERAL TRADE COMM'N V. BEECH-NUT CO., 257
U.S. 441.  TO SUSTAIN THAT BURDEN THE BOARD INSISTS THAT ALL THE
PROVISIONS OF ITS ORDER WERE LAWFULLY MADE AND THAT IT IS ENTITLED TO
HAVE THE ORDER ENFORCED IN ITS ENTIRETY.  SECTION 10(C) OF THE ACT
PROVIDES THAT IF THE BOARD "UPON ALL THE TESTIMONY TAKEN" "SHALL BE OF
THE OPINION THAT ANY PERSON NAMED IN THE COMPLAINT HAS ENGAGED IN OR IS
ENGAGING IN ANY SUCH UNFAIR LABOR PRACTICE THEN THE BOARD SHALL STATE
ITS FINDINGS OF FACT AND SHALL ISSUE AND CAUSE TO BE SERVED ON SUCH
PERSON AN ORDER REQUIRING SUCH PERSON TO CEASE AND DESIST FROM SUCH
UNFAIR LABOR PRACTICE, AND TO TAKE SUCH AFFIRMATIVE ACTION  ...  AS
WILL EFFECTUATE THE POLICIES OF THIS ACT."  THE BOARD, HAVING FOUND IN
THIS CASE THAT RESPONDENT HAD REFUSED TO BARGAIN, THAT PART OF ITS
ORDER DIRECTING RESPONDENT TO "CEASE AND DESIST FROM REFUSING TO
BARGAIN COLLECTIVELY" WITH THE GUILD, WAS IN EXACT COMPLIANCE WITH THE
STATUTE AND SHOULD HAVE BEEN LEFT UNDISTURBED BY THE JUDGMENT BELOW. 

A QUESTION OF A DIFFERENT NATURE IS PRESENTED BY PARAGRAPH 1(B) OF THE
ORDER, BY WHICH THE BOARD, ON THE BASIS OF RESPONDENT'S ACTION IN
REFUSING TO BARGAIN AND ITS STATEMENTS INTERFERING WITH THE BARGAINING
NEGOTIATIONS, HAS DIRECTED RESPONDENT NOT TO VIOLATE "IN ANY MANNER"
THE DUTIES IMPOSED ON THE EMPLOYER BY THE STATUTE.  PETITIONER ARGUES
THAT SINCE RESPONDENT'S REFUSAL TO BARGAIN, WHICH IS A VIOLATION OF
SEC. 8(5), IS ALSO A VIOLATION OF SEC. 8(1), WHICH IN TERMS
INCORPORATES BY REFERENCE ALL THE RIGHTS ENUMERATED IN SEC. 7, THE
BOARD IS NOT ONLY FREE TO RESTRAIN VIOLATIONS LIKE THOSE WHICH
RESPONDENT HAS COMMITTED, BUT ANY OTHER UNFAIR LABOR PRACTICES OF ANY
KIND WHICH LIKEWISE INFRINGE ANY OF THE RIGHTS ENUMERATED IN SEC. 7,
HOWEVER UNRELATED THOSE PRACTICES MAY BE TO THE ACTS OF RESPONDENT
WHICH ALONE EMERGED IN COURSE OF THE HEARING AND WHICH THE BOARD HAS
FOUND. 

BUT WE THINK IT DOES NOT FOLLOW THAT, BECAUSE THE ACT OF RESPONDENT
WHICH THE BOARD HAS FOUND TO BE AN UNFAIR LABOR PRACTICE DEFINED BY
SEC. 8(5) IS ALSO A TECHNICAL VIOLATION OF SEC. 8(1), THE BOARD, IN THE
CIRCUMSTANCES OF THIS CASE, IS JUSTIFIED IN MAKING A BLANKET ORDER
RESTRAINING THE EMPLOYER FROM COMMITTING ANY ACT IN VIOLATION OF THE
STATUTE, HOWEVER UNRELATED IT MAY BE TO THOSE CHARGED AND FOUND, OR
THAT COURTS ARE REQUIRED FOR THE INDEFINITE FUTURE TO GIVE EFFECT IN
CONTEMPT PROCEEDINGS TO AN ORDER OF SUCH BREADTH. 

WE CANNOT FIND SUCH AUTHORITY OR REQUIREMENT IN THE CAREFULLY CHOSEN
LANGUAGE OF SEC. 10(C), WHICH DIRECTS THE BOARD TO STATE ITS FINDINGS
OF FACT SHOWING THE UNFAIR LABOR PRACTICE CHARGED AND TO ORDER THE
PERSON ACCUSED TO "CEASE AND DESIST FROM SUCH UNFAIR LABOR PRACTICE,"
OR IN SEC. 10(E) OF THE ACT WHICH AUTHORIZES THE COURT ON APPLICATION
OF THE BOARD TO ENTER A "DECREE ENFORCING, MODIFYING, AND ENFORCING AS
SO MODIFIED, OR SETTING ASIDE IN WHOLE OR IN PART THE ORDER OF THE
BOARD."  IT IS OBVIOUS THAT THE ORDER OF THE BOARD, WHICH, WHEN
JUDICIALLY CONFIRMED, THE COURTS MAY BE CALLED ON TO ENFORCE BY
CONTEMPT PROCEEDINGS, MUST, LIKE THE INJUNCTION ORDER OF A COURT, STATE
WITH REASONABLE SPECIFICITY THE ACTS WHICH THE RESPONDENT IS TO DO OR
REFRAIN FROM DOING.  IT WOULD SEEM EQUALLY CLEAR THAT THE AUTHORITY
CONFERRED ON THE BOARD TO RESTRAIN THE PRACTICE WHICH IT HAS FOUND THE
EMPLOYER TO HAVE COMMITTED IS NOT AN AUTHORITY TO RESTRAIN GENERALLY
ALL OTHER UNLAWFUL PRACTICES WHICH IT HAS NEITHER FOUND TO HAVE BEEN
PURSUED NOR PERSUASIVELY TO BE RELATED TO THE PROVEN UNLAWFUL CONDUCT. 

CONGRESS HAS ITSELF AFFORDED A GUIDE POINTING TO THE APPROPRIATE
LIMITS OF THE ORDER WHICH THE BOARD IS TO MAKE IN RESTRAINING UNFAIR
LABOR PRACTICES.  BY ITS DEFINITION AND CLASSIFICATION OF UNFAIR LABOR
PRACTICES IN THE STATUTE IT HAS SHOWN THAT THEY ARE NOT ALWAYS SO
SIMILAR OR RELATED THAT THE COMMISSION OF ONE NECESSARILY MERITS OR
RIGHTLY ADMITS OF AN ORDER RESTRAINING ALL.  HERE THE WHOLE CONTROVERSY
BETWEEN RESPONDENT AND THE GUILD WAS WITH RESPECT TO THE GUILD'S
REQUEST TO BARGAIN AND RESPONDENT'S ATTEMPT TO INFLUENCE THE
NEGOTIATIONS AND ITS ULTIMATE REFUSAL TO ENTER INTO AN AGREEMENT FROM
ALL OF WHICH THE BOARD INFERRED THE REFUSAL TO BARGAIN IN GOOD FAITH. 
IN ALL OTHER RESPECTS RESPONDENT HAS CONSISTENTLY LEFT THE GUILD AND
ITS ACTIVITIES UNDISTURBED.  THE BOARD MADE NO FINDING AND THERE IS
NOTHING IN THE RECORD TO SUGGEST THAT THE FAILURE OF THE BARGAINING
NEGOTIATIONS AND ALL THAT ATTENDED THEM GAVE ANY INDICATION THAT IN THE
FUTURE RESPONDENT WOULD ENGAGE IN ALL OR ANY OF THE NUMEROUS OTHER
UNFAIR LABOR PRACTICES DEFINED BY THE ACT. 

REFUSAL TO BARGAIN, DEFINED AS AN UNFAIR LABOR PRACTICE BY SEC. 8(5),
MAY BE, AS WE THINK IT WAS HERE, WHOLLY UNRELATED TO THE DOMINATION OF
A LABOR UNION OR THE INTERFERENCE WITH ITS FORMATION OR ADMINISTRATION
OR FINANCIAL OR OTHER SUPPORT TO IT, ALL OF WHICH ARE DEFINED AS UNFAIR
LABOR PRACTICES BY SEC. 8(2).  REFUSAL TO BARGAIN MAY BE, AS WE THINK
IT WAS HERE, WHOLLY UNRELATED TO "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," ALL OF
WHICH ARE UNFAIR LABOR PRACTICES AS DEFINED BY SEC. 8(3).  HERE THE
BOARD MADE NO FINDING BASED EITHER ON THE SPECIFIC CIRCUMSTANCES
DISCLOSED BY THE RECORD OR ON ITS OWN EXPERT JUDGMENT OF THEIR RELATION
TO THE POLICY EMBODIED IN SEC. 7, OR AS TO ANY RELATIONSHIP OR PROBABLE
RELATIONSHIP OF RESPONDENT'S REFUSAL TO BARGAIN AND THE OTHER TYPES OF
UNFAIR PRACTICES SOME OF WHICH ARE ENUMERATED IN SEC. 8.  YET, IF THE
CONTENTION WHICH IT MAKES IS TO BE SUSTAINED, SUBSEQUENT VIOLATIONS OF
SEC. 8(2) AND (3), WHICH ARE ALSO VIOLATIONS OF SEC. 8(1), MAY BE THE
SUBJECT OF A CONTEMPT ORDER MERELY BECAUSE RESPONDENT BY THE REFUSAL TO
BARGAIN HAS VIOLATED SEC. 8(5) WHICH IS SIMILARLY A VIOLATION OF SEC.
8(1).    IN VIEW OF THE AUTHORITY GIVEN TO THE BOARD BY SEC. 10(C),
CAREFULLY RESTRICTED TO THE RESTRAINT OF SUCH UNFAIR LABOR PRACTICES AS
THE BOARD HAS FOUND THE EMPLOYER TO HAVE COMMITTED, AND OF THE BROAD
LANGUAGE OF SEC. 10(E) AUTHORIZING THE COURTS TO MODIFY THE ORDER OF
THE BOARD WHOLLY OR IN PART, WE CAN HARDLY SUPPOSE THAT CONGRESS
INTENDED THAT THE BOARD SHOULD MAKE OR THE COURT SHOULD ENFORCE ORDERS
WHICH COULD NOT APPROPRIATELY BE MADE IN JUDICIAL PROCEEDINGS.  THIS IS
THE MORE SO BECAUSE SEC. 10(A), WHICH AUTHORIZES THE BOARD "AS
HEREINAFTER PROVIDED, TO PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR
LABOR PRACTICE," SPECIFICALLY DIRECTS THAT "THIS POWER SHALL BE
EXCLUSIVE, AND SHALL NOT BE AFFECTED BY ANY OTHER MEANS OF ADJUSTMENT
OR PREVENTION THAT HAS BEEN OR MAY BE ESTABLISHED BY AGREEMENT, CODE,
LAW, OR OTHERWISE."  IN THE LIGHT OF THESE PROVISIONS WE THINK THAT
CONGRESS DID NOT CONTEMPLATE THAT THE COURTS SHOULD, BY CONTEMPT
PROCEEDINGS, TRY ALLEGED VIOLATIONS OF THE NATIONAL LABOR RELATIONS ACT
NOT IN CONTROVERSY AND NOT FOUND BY THE BOARD AND WHICH ARE NOT SIMILAR
OR FAIRLY RELATED TO THE UNFAIR LABOR PRACTICE WHICH THE BOARD HAS
FOUND. 

A FEDERAL COURT HAS BROAD POWER TO RESTRAIN ACTS WHICH ARE OF THE
SAME TYPE OR CLASS AS UNLAWFUL ACTS WHICH THE COURT HAS FOUND TO HAVE
BEEN COMMITTED OR WHOSE COMMISSION IN THE FUTURE, UNLESS ENJOINED, MAY
FAIRLY BE ANTICIPATED FROM THE DEFENDANT'S CONDUCT IN THE PAST.  BUT
THE MERE FACT THAT A COURT HAS FOUND THAT A DEFENDANT HAS COMMITTED AN
ACT IN VIOLATION OF A STATUTE DOES NOT JUSTIFY AN INJUNCTION BROADLY TO
OBEY THE STATUTE AND THUS SUBJECT THE DEFENDANT TO CONTEMPT PROCEEDINGS
IF HE SHALL AT ANY TIME IN THE FUTURE COMMIT SOME NEW VIOLATION UNLIKE
AND UNRELATED TO THAT WITH WHICH HE WAS ORIGINALLY CHARGED.  THIS COURT
WILL STRIKE FROM AN INJUNCTION DECREE RESTRAINTS UPON THE COMMISSION OF
UNLAWFUL ACTS WHICH ARE THUS DISSOCIATED FROM THOSE WHICH A DEFENDANT
HAS COMMITTED.  SWIFT & CO. V. UNITED STATES, 196 U.S. 375; NEW YORK,
N.H. & H.R. CO. V. INTERSTATE COMMERCE COMM'N, 200 U.S. 361, 404, AND
SEE UNDER THE NATIONAL LABOR RELATIONS ACT, NATIONAL LABOR RELATIONS
BOARD V. SWIFT & CO., 108 F.2D 988. 

IT IS A SALUTARY PRINCIPLE THAT WHEN ONE HAS BEEN FOUND TO HAVE
COMMITTED ACTS IN VIOLATION OF A LAW HE MAY BE RESTRAINED FROM
COMMITTING OTHER RELATED UNLAWFUL ACTS.  BUT WE THINK THAT, WITHOUT
SACRIFICE OF THAT PRINCIPLE, THE NATIONAL LABOR RELATIONS ACT DOES NOT
CONTEMPLATE THAT AN EMPLOYER WHO HAS UNLAWFULLY REFUSED TO BARGAIN WITH
HIS EMPLOYEES SHALL FOR THE INDEFINITE FUTURE, CONDUCT HIS LABOR
RELATIONS AT THE PERIL OF A SUMMONS FOR CONTEMPT ON THE BOARD'S
ALLEGATION, FOR EXAMPLE, THAT HE HAS DISCRIMINATED AGAINST A LABOR
UNION IN THE DISCHARGE OF AN EMPLOYEE, OR BECAUSE HIS SUPERVISORY
EMPLOYEES HAVE ADVISED OTHER EMPLOYEES NOT TO JOIN A UNION.  SEE E.G.,
H.J. HEINZ CO. V. NATIONAL LABOR RELATIONS BOARD, 311 U.S. 514. 

HAVING FOUND THE ACTS WHICH CONSTITUTE THE UNFAIR LABOR PRACTICE THE
BOARD IS FREE TO RESTRAIN THE PRACTICE AND OTHER LIKE OR RELATED
UNLAWFUL ACTS.  BUT AS THE COURT HAS HELD IN THE CASE OF THE FEDERAL
TRADE COMMISSION, SEE FEDERAL TRADE COMM'N V. BEECH-NUT CO., SUPRA,
455, AN ORDER NOT SO RELATED SHOULD BE APPROPRIATELY RESTRICTED ON
REVIEW.  THE BREADTH OF THE ORDER, LIKE THE INJUNCTION OF A COURT, MUST
DEPEND UPON THE CIRCUMSTANCES OF EACH CASE, THE PURPOSE BEING TO
PREVENT VIOLATIONS, THE THREAT OF WHICH IN THE FUTURE IS INDICATED
BECAUSE OF THEIR SIMILARITY OR RELATION TO THOSE UNLAWFUL ACTS WHICH
THE BOARD HAS FOUND TO HAVE BEEN COMMITTED BY THE EMPLOYER IN THE
PAST.  SEE UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290,
308, 309; STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 77; TEXAS &
NEW ORLEANS R. CO. V. BROTHERHOOD OF RAILWAY CLERKS, 281 U.S. 548;
LOCAL 167 V. UNITED STATES, 291 U.S. 293; VIRGINIAN RY. CO. V. SYSTEM
FEDERATION NO. 40, 300 U.S. 515, 541, 543, 544.  WE HOLD ONLY THAT THE
NATIONAL LABOR RELATIONS ACT DOES NOT GIVE THE BOARD AN AUTHORITY,
WHICH COURTS CANNOT RIGHTLY EXERCISE, TO ENJOIN VIOLATIONS OF ALL THE
PROVISIONS OF THE STATUTE MERELY BECAUSE THE VIOLATION OF ONE HAS BEEN
FOUND.  TO JUSTIFY AN ORDER RESTRAINING OTHER VIOLATIONS IT MUST APPEAR
THAT THEY BEAR SOME RESEMBLANCE TO THAT WHICH THE EMPLOYER HAS
COMMITTED OR THAT DANGER OF THEIR COMMISSION IN THE FUTURE IS TO BE
ANTICIPATED FROM THE COURSE OF HIS CONDUCT IN THE PAST.  THAT
JUSTIFICATION IS LACKING HERE.  TO REQUIRE IT IS NO MORE ONEROUS OR
EMBARRASSING TO THE BOARD THAN TO A COURT.  AND SINCE WE ARE IN A FIELD
WHERE SUBTLETIES OF CONDUCT MAY PLAY NO SMALL PART, IT IS APPROPRIATE
TO ADD THAT AN ORDER OF THE BOARD, LIKE THE INJUNCTION OF A COURT, IS
NOT TO BE EVADED BY INDIRECTIONS OR FORMAL OBSERVANCES WHICH IN FACT
DEFY IT.  AFTER AN ORDER TO BARGAIN COLLECTIVELY IN GOOD FAITH, FOR
EXAMPLE, DISCRIMINATORY DISCHARGE OF UNION MEMBERS MAY SO AFFECT THE
BARGAINING PROCESS AS TO ESTABLISH A VIOLATION OF THE ORDER. 

THE BOARD PLACES STRONG RELIANCE ON NATIONAL LABOR RELATIONS BOARD V.
FANSTEEL METALLURGICAL CORP., 306 U.S. 240, AND ON TEXAS & NEW ORLEANS
R. CO. V. BROTHERHOOD OF RAILWAY CLERKS, SUPRA, 555, 567, 568, 571, AND
VIRGINIAN RY. CO. V. SYSTEM FEDERATION NO. 40, SUPRA, 543, 544.  IN
THOSE CASES THE CEASE AND DESIST ORDER AND THE INJUNCTIONS WERE
SUBSTANTIALLY LIKE PARAGRAPH 1(B) OF THE BOARD'S ORDER IN THE PRESENT
CASE.  BUT IN THEM THE UNFAIR LABOR PRACTICES DID NOT APPEAR TO BE
ISOLATED ACTS IN VIOLATION OF THE RIGHT OF SELF-ORGANIZATION, LIKE THE
REFUSAL TO BARGAIN HERE, BUT THE RECORD DISCLOSED PERSISTENT ATTEMPTS
BY VARYING METHODS TO INTERFERE WITH THE RIGHT OF SELF-ORGANIZATION IN
CIRCUMSTANCES FROM WHICH THE BOARD OR THE COURT FOUND OR COULD HAVE
FOUND THE THREAT OF CONTINUING AND VARYING EFFORTS TO ATTAIN THE SAME
END IN THE FUTURE. 

AN APPROPRIATE ORDER IN THE CIRCUMSTANCES OF THE PRESENT CASE WOULD
GO NO FURTHER THAN TO RESTRAIN RESPONDENT FROM ANY REFUSAL TO BARGAIN
AND FROM ANY OTHER ACTS IN ANY MANNER INTERFERING WITH THE GUILD'S
EFFORTS TO NEGOTIATE.  SO FAR AS RESPONDENT'S PAST CONDUCT MAY BE
THOUGHT TO HAVE HAD ANY EFFECT ON THE RIGHTS GUARANTEED BY SEC. 7, SUCH
CONSEQUENCES WOULD BE EFFECTIVELY PREVENTED BY THE PROHIBITION OF SUCH
AN ORDER WITHOUT DRAWING IT SO BROADLY AS TO FORBID ALL OTHER UNRELATED
UNFAIR LABOR PRACTICES. 

ONLY A WORD NEED BE SAID OF THAT PART OF THE BOARD'S ORDER REQUIRING
THE POSTING OF NOTICES.  WE HAVE OFTEN HELD THAT THE POSTING OF NOTICES
ADVISING THE EMPLOYEES OF THE BOARD'S ORDER AND ANNOUNCING THE
READINESS OF THE EMPLOYER TO OBEY IT IS WITHIN THE AUTHORITY CONFERRED
ON THE BOARD BY SEC. 10(C) OF THE ACT "TO TAKE SUCH AFFIRMATIVE ACTION
...  AS WILL EFFECTUATE THE POLICIES" OF THE ACT.  SEE NATIONAL LABOR
RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, 268;
H.J. HEINZ CO. V. NATIONAL LABOR RELATIONS BOARD, SUPRA. 

BUT RESPONDENT ARGUES THAT THE AUTHORITY OF THE BOARD DOES NOT EXTEND
TO THE REQUIREMENT, SUCH AS WAS MADE IN THIS CASE, THAT THE EMPLOYER
CONFESS VIOLATION OF THE ACT BY A PUBLISHED ANNOUNCEMENT THAT HE WILL
"CEASE AND DESIST" FROM VIOLATING IT.  SEE, NATIONAL LABOR RELATIONS
BOARD V. ABELL CO., 97 F.2D 951; BURLINGTON CO. V. NATIONAL LABOR
RELATIONS BOARD, 104 F.2D 736; SWIFT & CO. V. NATIONAL LABOR RELATIONS
BOARD, 106 F.2D 87; ART METALS CONSTRUCTION CO. V. NATIONAL LABOR
RELATIONS BOARD, 110 F.2D 148, 151, 152; HARTSELL MILLS CO. V. NATIONAL
LABOR RELATIONS BOARD, 111 F.2D 291, 293.  SINCE THE BOARD HAS CHANGED
ITS PRACTICE AND NOW PROVIDES IN ALL ORDERS THAT THE EMPLOYERS' NOTICES
SHALL STATE "THAT HE WILL NOT ENGAGE IN THE CONDUCT FROM WHICH HE IS
ORDERED TO CEASE AND DESIST" IT CONSENTS THAT THE PRESENT ORDER BE
MODIFIED ACCORDINGLY. 

WHAT WE HAVE SAID REQUIRES A REVERSAL OF THE JUDGMENT BELOW AND THE
REESTABLISHMENT OF THE BOARD'S ORDER WITH THE FOLLOWING EXCEPTIONS: 

PARAGRAPH 1(B) OF THE ORDER WILL BE MODIFIED SO AS TO REQUIRE ONLY
THAT RESPONDENT SHALL CEASE AND DESIST FROM "IN ANY MANNER INTERFERING
WITH THE EFFORTS OF THE GUILD TO BARGAIN COLLECTIVELY WITH EXPRESS
PUBLISHING COMPANY, SAN ANTONIO, TEXAS." 

PARAGRAPH 2(B) OF THE ORDER WILL BE MODIFIED BY STRIKING FROM IT THE
WORDS "WILL CEASE AND DESIST AS AFORESAID", AND SUBSTITUTING FOR THEM
THE WORDS "WILL NOT ENGAGE IN THE CONDUCT FROM WHICH IT IS ORDERED TO
CEASE AND DESIST AS AFORESAID."  REVERSED. 

FN1  THE STATEMENTS ALLEGED TO HAVE BEEN MADE BY OFFICERS OR AGENTS
OF RESPONDENT WERE "EXISTING INDEPENDENT EMPLOYMENT RELATIONS MAY BE
CONTINUED BY THE INDIVIDUAL EMPLOYEES OR BY EMPLOYEES AS A GROUP."  "NO
ONE CAN COMPEL YOU TO JOIN ANY ORGANIZATION."  AND REFERRING TO
RESPONDENT'S TREATMENT OF ITS EMPLOYEES, IT WAS ALLEGED THAT
RESPONDENT'S OFFICER STATED:  "EACH OF YOU KNOW WE WERE NOT FORCED TO
DO THIS BY ANY LABOR ORGANIZATION AND NO LABOR ORGANIZATION CAN FORCE
US TO DO THESE THINGS." 

MR. JUSTICE DOUGLAS: 

I THINK THE CEASE AND DESIST ORDER SHOULD BE ENFORCED IN FULL. 

RESPONDENT DID NOT OBJECT IN ITS ANSWER TO THE BOARD'S PETITION
BEFORE THE CIRCUIT COURT OF APPEALS TO THAT PORTION OF THE BOARD'S
ORDER WHICH THE COURT NOW MODIFIES.  SO FAR AS THE BRIEFS DISCLOSE IT
DID NOT MAKE ANY SUCH OBJECTION IN THE CIRCUIT COURT OF APPEALS.  NOR
DID RESPONDENT QUESTION THE PROPRIETY OF THAT PROVISION OF THE ORDER OR
CHALLENGE THE POWER OF THE BOARD TO MAKE IT EITHER IN ITS BRIEF OR IN
ITS ORAL ARGUMENT HERE.  ANY CONTROVERSY ON THAT ISSUE BEFORE THIS
COURT IS THEREFORE NOT ATTRIBUTABLE TO RESPONDENT.  FOR ON THE RECORD
BEFORE US IT MUST BE ASSUMED THAT RESPONDENT WHOLLY ACQUIESCES IN THAT
PHASE OF THE BOARD'S ACTION.  IN THAT POSTURE OF THE CASE, IT IS PLAIN
THIS COURT WILL NOT CUSTOMARILY RAISE SUA SPONTE OBJECTIONS WHICH
RESPONDENT DID NOT CHOOSE TO MAKE.  WE ARE, OF COURSE, ASKED TO ENFORCE
AN ORDER OF THE BOARD.  AND I SUPPOSE WE MIGHT REFUSE TO ENFORCE
PROVISIONS OF SUCH AN ORDER WHICH ARE PATENTLY ULTRA VIRES, EVEN THOUGH
THE OTHER PARTY RAISES NO OBJECTION BUT ACQUIESCES IN THEM.  BUT, IN MY
VIEW, THIS PROVISION OF THE ORDER IS NOT BEYOND THE POWER OF THE
BOARD. 

THE ORDER AS MODIFIED RESTRAINS RESPONDENT FROM INTERFERING IN ANY
MANNER "WITH THE EFFORTS OF THE GUILD TO BARGAIN COLLECTIVELY" WITH IT.
BUT RESPONDENT IS NOT RESTRAINED FROM INTERFERING WITH THE EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS (A) TO SELF-ORGANIZATION, (B) TO FORM,
JOIN, OR ASSIST LABOR ORGANIZATIONS, OR (C) TO ENGAGE IN CONCERTED
ACTIVITIES FOR THE PURPOSES OF COLLECTIVE BARGAINING OR OTHER MUTUAL
AID AND PROTECTION.  THESE DELETIONS REPRESENT THE LOSS OF SUBSTANTIAL
SANCTIONS - SANCTIONS WHICH THE EXPERT ADMINISTRATIVE AGENCY MAY WELL
HAVE CONCLUDED ARE BASIC AND ESSENTIAL FOR PROTECTION OF THE RIGHT
WHICH THIS VERY UNION HAS WON. 

TAKE THE CASE WHERE AN EMPLOYER IS PLAYING DUCKS AND DRAKES WITH THE
NATIONAL LABOR RELATIONS ACT.  HE PAYS MERE LIP SERVICE TO THE
REQUIREMENTS OF THE ACT WHILE INTENT ON BLOCKING IN HIS PLANT ANY
EFFECTIVE UNION ACTION.  IF THAT IS A FAITHFUL REPRESENTATION OF HIS
ATTITUDE, THE MANDATE OF THE ACT MIGHT BE WHOLLY FRUSTRATED OR ITS
ENFORCEMENT NEEDLESSLY DELAYED WERE THE BOARD MERELY TO ORDER HIM TO
CEASE AND DESIST FROM INTERFERING "WITH THE EFFORTS" OF THE UNION "TO
BARGAIN COLLECTIVELY."  THAT, WITHOUT MORE, MIGHT WELL BE WHOLLY
INEFFECTIVE, OR SO THE BOARD IN ITS DISCRETION MIGHT CONCLUDE.  IN
FACT, IT MIGHT EVEN BE AN OPEN INVITATION TO AN EMPLOYER INTENT ON
EVASION OF THE SPIRIT AND LETTER OF THE ACT TO RESORT TO DEVIOUS ROUTES
TO THE SAME END.  EMPLOYEES ARE DROPPED - PERHAPS THE LEADERS OF THE
UNION; LABOR SPIES ARE EMPLOYED; A COMPANY UNION IS SPONSORED AND
FINANCED; NEW EMPLOYEES ARE SELECTED WHO PROMISE NOT TO JOIN THE
OUTSIDE UNION.  THE PURPOSE IS TO THWART ANY EFFECTIVE ACTION BY THAT
UNION.  SUCH OBSTRUCTIVE TACTICS COULD GO ON APACE AND YET NO "EFFORTS"
OF THE UNION "TO BARGAIN COLLECTIVELY" NEED BE DENIED.  THE EMPLOYER
COULD CONTINUE THE SO-CALLED NEGOTIATIONS WITH THE UNION, PERHAPS REACH
AT LEAST A TENTATIVE AGREEMENT WITH IT, AND YET IN A MYRIAD OF WAYS
UNDERMINE IT IF THE BREADTH OF THE CEASE AND DESIST ORDER WERE
DELIMITED. 

PERHAPS THIS IS TO CONJURE UP REMOTE AND HYPOTHETICAL SITUATIONS. 
PERHAPS THAT IS NOT THIS CASE.  FN1  BUT I THINK IT IS IMPORTANT TO
REMIND THAT WE DO NOT SIT AS AN ADMINISTRATIVE AGENCY WITH DISCRETION
TO ADJUST THE REMEDIES ACCORDED BY THE ACT TO WHAT WE THINK ARE THE
NEEDS OF PARTICULAR CASES, WITH POWER TO WRITE OR REWRITE
ADMINISTRATIVE ORDERS IN LIGHT OF WHAT WE THINK ARE THE EXIGENCIES OF
SPECIFIC SITUATIONS, WITH THE DUTY TO PASS ON THE WISDOM OF
ADMINISTRATIVE POLICIES.  CONGRESS HAS INVESTED THE BOARD, NOT US, WITH
DISCRETION TO CHOOSE AND SELECT THE REMEDIES NECESSARY OR APPROPRIATE
FOR THE EVIL AT HAND. 

THE BOARD CONCLUDED (SO WE MUST PRESUME) THAT ITS ORDER DIRECTING
RESPONDENT TO BARGAIN COLLECTIVELY WITH THE GUILD NEED BE BUTTRESSED BY
BROAD PROTECTIVE PROVISIONS GOOD AGAINST ANY AND ALL METHODS OF
EVASION.  FORMAL RECITALS COULD HARDLY MAKE THAT PLAINER THAN IT IS.
FN2  AND CLEARLY THOSE PROVISIONS ARE NO BROADER THAN THE WIDE REACHES
OF THE CONTROVERSY DISCLOSED IN THIS RECORD.    WHETHER THE REMEDY
CHOSEN BY THE BOARD WAS REASONABLY NECESSARY IN THIS CASE IS NOT FOR US
TO DETERMINE.  NOR IS IT FOR US TO SAY WHAT LANGUAGE IS ADEQUATE TO
SAFEGUARD THE LABOR RIGHTS WHICH ARE IN ISSUE.  TO CUT DOWN THE
LANGUAGE OF THIS ORDER NOT ONLY SUBSTITUTES OUR JUDGMENT FOR THAT OF
THE BOARD; IT WILL ALSO RESULT IN THE CREATION OF A HOST OF
UNCERTAINTIES.  THE ORIGINAL ORDER MAKES CLEAR THAT ANY ATTEMPTED
EVASION, NO MATTER HOW DEVIOUS, IS BANNED.  AS MODIFIED THE ORDER
CLEARLY SUBTRACTS FROM THOSE SANCTIONS.  BUT THE PRECISE EXTENT OF ITS
DILUTION REMAINS UNCERTAIN.  THE BOARD MAY, OF COURSE, IN CASE OF
FUTURE VIOLATIONS INSTITUTE NEW ADMINISTRATIVE PROCEEDINGS.  YET THE
METHOD HERE CHOSEN FOR SETTLEMENT OF THIS LABOR CONTROVERSY DOES NOT
PROMISE PEACE.  IT INVITES A PROLONGATION OF THE DISPUTE WHICH SHOULD
BE DEEMED TO HAVE BEEN SETTLED, WITH THE EMPLOYER'S ACQUIESCENCE, ONCE
AND FOR ALL.  THAT PRACTICAL ASPECT OF THE MATTER IS OF GREAT
IMPORTANCE ON THE MERITS; AND IT ALSO EMPHASIZES THE SERIOUSNESS OF OUR
INTRUSION INTO THE ADMINISTRATIVE DOMAIN.  SEE NOTE (1940) 53 HARV. L.
REV. 472. 

FN1  IT SHOULD, HOWEVER, BE NOTED THAT THE BOARD CONCLUDED THAT "THE
RESPONDENT HAD NO INTENTION OF NEGOTIATING IN GOOD FAITH WITH THE GUILD
NOR OF ENTERING INTO A COLLECTIVE BARGAINING AGREEMENT WITH IT."  AND
THE CIRCUIT COURT OF APPEALS OBSERVED, "  ...  WE THINK THERE WAS
EVIDENCE TO SUPPORT THE FINDING OF THE BOARD THAT RESPONDENT HAD
DETERMINED IN ADVANCE NEVER TO AGREE TO ANYTHING." 

FN2  IN THIS CONNECTION IT SHOULD BE OBSERVED THAT THE BOARD FOUND
THAT RESPONDENT HAD "INTERFERED WITH, RESTRAINED, AND COERCED ITS
EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION 7 OF THE
ACT" BY READING TO THEM A STATEMENT WHICH "PRESENTED A DISTORTED
CONCEPT" OF THE EMPLOYEES' RIGHTS UNDER THE ACT.  THE CIRCUIT COURT OF
APPEALS SET ASIDE THAT FINDING.  WHILE THE BOARD DID NOT RAISE THAT
ISSUE IN ITS PETITION FOR CERTIORARI, THAT EPISODE IS NEVERTHELESS
RELEVANT TO THE SCOPE OF THE CEASE AND DESIST ORDER.  IF IT BE ASSUMED,
AS DOES THE MAJORITY, THAT SUCH A BROAD ORDER MUST BE FOUNDED AT LEAST
ON SOME EVIDENCE THAT OTHER RELATED UNLAWFUL ACTS "MAY FAIRLY BE
ANTICIPATED FROM THE DEFENDANT'S CONDUCT IN THE PAST," THAT EPISODE IS
OF SIGNIFICANCE.  FOR THOUGH IT MIGHT NOT OF ITSELF SUPPORT AN
ADDITIONAL FINDING OF A SEPARATE VIOLATION OF SEC. 8, IT CERTAINLY IS
SOME EVIDENCE FOR THE EXERCISE OF THE BOARD'S EXPERT JUDGMENT THAT THE
REFUSAL TO BARGAIN DID NOT HAVE AN IMPROBABLE RELATIONSHIP TO OTHER
LIKELY OBSTRUCTIVE TACTICS OF A RELATED ORDER. 

MR. JUSTICE BLACK AND MR. JUSTICE REED JOIN IN THIS OPINION. 
..END :







MAASS V. HIGGINS, 312 U.S. 443 


NO. 274.  ARGUED FEBRUARY 3, 1941.  - DECIDED MARCH 3, 1941.  - 111 F.2D
78 - 114 ID. 1017, REVERSED. 


1.  WHERE AN EXECUTOR ELECTS, UNDER SEC. 302(J) OF THE REVENUE ACT OF
1926, AS ADDED BY SEC. 202(A) OF THE REVENUE ACT OF 1935, TO HAVE THE
ESTATE VALUED AS OF ONE YEAR AFTER DEATH, OR TO HAVE ITEMS OF THE
ESTATE WHICH HAVE BEEN DISPOSED OF DURING THE YEAR VALUED AS OF THE
TIME OF DISPOSITION, RENTS, DIVIDENDS AND INTEREST ACCRUED AND RECEIVED
BETWEEN THE TIME OF DEATH AND THE TIME OF SUCH VALUATION SHOULD NOT BE
INCLUDED AS PART OF THE VALUE OF THE GROSS ESTATE.  P. 446. 

2.  ART. 11, T.R. 80(1937 ED.), TO THE CONTRARY, IS INVALID.  P.
446. 

MAASS, EXECUTOR, V. HIGGINS, COLLECTOR OF INTERNAL REVENUE.* 

*TOGETHER WITH NO. 510, ESTATE OF ABENDROTH ET AL. V. COMMISSIONER OF
INTERNAL REVENUE, AND NO. 511, ESTATE OF BLACQUE ET AL. V. COMMISSIONER
OF INTERNAL REVENUE, ALSO ON WRITS OF CERTIORARI, 311 U.S. 641, TO
THECIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 626, TO REVIEW JUDGMENTS SUSTAINING DEFICIENCY
ASSESSMENTS OF ESTATE TAXES.  NO. 274 WAS A SUIT AGAINST A COLLECTOR TO
RECOVER AN ALLEGED OVERPAYMENT.  FOR THE OPINION OF THE DISTRICT COURT,
SEE 29 F.SUPP.  996.  THE OTHER TWO CASES WERE DECIDED IN THE FIRST
INSTANCE BY THE BOARD OF TAX APPEALS, WHOSE DECISION, 41 B.T.A. 1178,
SUSTAINING THE COMMISSIONER WAS AFFIRMED BY THE COURT BELOW ON A
PETITION TO REVIEW IT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN THESE CASES WE MUST DECIDE WHETHER, WHERE AN EXECUTOR AVAILS
HIMSELF OF THE OPTION EXTENDED BY THE ESTATE TAX LAW TO VALUE A
DECEDENT'S GROSS ESTATE AS OF ONE YEAR AFTER THE DECEDENT'S DEATH,
RENTS, DIVIDENDS, AND INTEREST RECEIVED AND ACCRUED DURING THE YEAR ARE
TO BE ADDED TO THE VALUE OF THE PROPERTY TO WHICH THEY ARE ATTRIBUTABLE
AND INCLUDED IN THE VALUE OF THE GROSS ESTATE.  THE QUESTION ARISES
UNDER SEC. 302(J) OF THE REVENUE ACT OF 1926 AS ADDED BY SEC. 202(A) OF
THE REVENUE ACT OF 1935.  FN1 

NO. 274 IS A SUIT AGAINST THE COLLECTOR TO RECOVER AN OVERPAYMENT OF
TAX.  THE COMPLAINT ALLEGED THAT THE DECEDENT DIED AUGUST 30, 1936;
THAT IN THE ESTATE'S RETURN THE EXECUTORS ELECTED TO HAVE THE VALUE OF
THE GROSS ESTATE DETERMINED BY VALUING IT AS OF ONE YEAR AFTER THE
DECEDENT'S DEATH; THAT THE COMMISSIONER INCLUDED IN THE ESTATE A SUM
WHICH WAS NOT IN FACT THE DECEDENT'S PROPERTY AT THE TIME OF HER DEATH
BUT REPRESENTED INCOME, NAMELY, RENTS, DIVIDENDS, AND INTEREST EARNED
BY THE ESTATE SUBSEQUENT TO THE DECEDENT'S DEATH; THAT THE EXECUTORS
PAID THE TAX AND THEIR CLAIM FOR REFUND WAS REJECTED.  THE COLLECTOR'S
ANSWER RAISED NO MATERIAL ISSUE OF FACT.  EACH PARTY MOVED FOR JUDGMENT
ON THE PLEADINGS.  THE COURT DISMISSED THE COMPLAINT.  FN2  THE CIRCUIT
COURT OF APPEALS AFFIRMED, ONE JUDGE DISSENTING.  FN3 

IN NOS. 510 AND 511, THE EXECUTOR OF TWO DECEDENTS WHO DIED
RESPECTIVELY OCTOBER 9, 1936, AND APRIL 3, 1937, ELECTED IN ITS RETURNS
TO HAVE THE GROSS ESTATES VALUED AS OF ONE YEAR AFTER DEATH OR AS OF
DATE OF DISPOSITION.  IN EACH CASE THE EXECUTOR COLLECTED INTEREST AND
DIVIDENDS UPON BONDS AND STOCKS FORMING PART OF THE ESTATE AT
DECEDENT'S DEATH.  THE SUMS SO COLLECTED WERE NOT RECKONED IN FIXING
THE VALUES OF THE ESTATES, EXCEPT SUCH PORTION OF THEM AS ACCRUED PRIOR
TO DEATH.  THE COMMISSIONER DETERMINED DEFICIENCIES DUE TO THE FAILURE
TO RETURN THEM.  THE BOARD OF TAX APPEALS AFFIRMED HIS ACTION  FN4  AND
THE CIRCUIT COURT OF APPEALS AFFIRMED THE BOARD'S DECISION.  FN5 

ALTHOUGH THERE WAS NO CONFLICT BETWEEN DECISIONS OF CIRCUIT COURTS OF
APPEALS,  FN6  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE
QUESTION AND THE NUMBER OF PENDING CASES IN WHICH IT IS PRESENTED. 

IT IS AGREED THAT THE PURPOSE OF SUBDIVISION (J) WAS TO MITIGATE THE
HARDSHIP CONSEQUENT UPON SHRINKAGE IN THE VALUE OF ESTATES DURING THE
YEAR FOLLOWING DEATH.  CONGRESS ENACTED IT IN THE LIGHT OF THE FACT
THAT, DUE TO SUCH SHRINKAGES, MANY ESTATES WERE ALMOST OBLITERATED BY
THE NECESSITY OF PAYING A TAX ON THE VALUE OF THE ASSETS AT THE DATE OF
DECEDENT'S DEATH.  ABOUT ONE YEAR AFTER THE ADOPTION OF THE SUBSECTION,
THE TREASURY PROMULGATED ART. 11 OF REGULATIONS 80(1937 ED.)  IN WHICH
IT RULED THAT INTEREST-BEARING OBLIGATIONS, SUCH AS BONDS, EMBODIED TWO
PROMISES, ONE TO PAY PRINCIPAL, THE OTHER TO PAY INTEREST, BOTH A PART
OF THE GROSS ESTATE IF THE OBLIGATION WAS OWNED BY THE DECEDENT AT HIS
DEATH.  IT FURTHER RULED THAT IN THE CASE OF LEASED REAL ESTATE TWO
FACTORS WERE TO BE CONSIDERED, THE VALUE OF THE REALTY AND THE VALUE OF
THE COVENANT TO PAY RENT.  WITH RESPECT TO STOCKS, IT RULED THAT THE
VALUE OF THE STOCK AND THE VALUE OF THE RIGHT TO DIVIDENDS THEREON WERE
SEPARABLE AND EACH CONSTITUTED AN ELEMENT OF VALUE TO THE DECEDENT. 
THE REGULATION REQUIRED THAT IF, DURING THE YEAR SUBSEQUENT TO DEATH,
RENTS, ROYALTIES, INTEREST, OR DIVIDENDS WERE RECEIVED BY THE
DECEDENT'S ESTATE, SUCH PORTION THEREOF AS HAD NOT ACCRUED, OR WAS NOT
ATTRIBUTABLE TO A PERIOD, PRIOR TO DEATH, SHOULD BE RETURNED IN FULL
AND RECKONED AS PART OF THE GROSS ESTATE IN ANY CASE WHERE THE EXECUTOR
ELECTED, AS PERMITTED BY SUBSECTION (J), TO VALUE THE ASSETS AS OF ONE
YEAR AFTER THE DECEDENT'S DEATH OR AS OF THE DATE OF DISPOSITION OF ANY
ASSET.  IN ACCORDANCE WITH THE REGULATION THE DEFICIENCIES IN THE
PRESENT CASES WERE DETERMINED. 

IN THE COURTS BELOW, AND BEFORE THE BOARD OF TAX APPEALS, THE
GOVERNMENT CONTENDED THAT SUCH ITEMS OF INCOME ARE IN TRUTH PAYMENTS ON
ACCOUNT OF PRINCIPAL AND THAT, BY SUCH PAYMENTS, THE PRINCIPAL IS
REDUCED SO THAT, WHEN THE CAPITAL ASSET IS VALUED AT THE END OF THE
PERIOD, ITS TRUE VALUE IS NOT REFLECTED UNLESS THERE BE ADDED THE
INTEREST, DIVIDEND, OR OTHER LIKE PAYMENT RECEIVED BY THE ESTATE IN THE
INTERIM.  IN THIS COURT, THE ARGUMENT TAKES A SOMEWHAT DIFFERENT FORM. 
REFERENCE IS MADE TO THE FACT THAT, UNDER THE OPTION GRANTED, A CAPITAL
ASSET IS TO BE VALUED EITHER AT THE EXPIRATION OF THE YEAR OR AT THE
TIME OF DISPOSITION AND IT IS URGED THAT, AS RESPECTS INTEREST, RENT OR
DIVIDENDS, A DISPOSITION OCCURS AT THE DATE OF THE RECEIPT OF THE
ITEM.  IN EITHER ASPECT THE VALIDITY OF THE CONTENTION DEPENDS UPON THE
THEORY THAT, FOR PURPOSES OF ESTATE TAX VALUATION, THE ASSET CONSISTS
OF TWO ELEMENTS, - ONE THE RIGHT OF OWNERSHIP THE OTHER THE RIGHT TO
RECEIVE THE INCOME.  IT IS SAID THAT BOTH OF THESE ELEMENTS ENTER INTO
THE VALUATION MADE AS OF THE DATE OF DEATH AND IF, IN THE SUBSEQUENT
PERIOD, THE LATTER EMERGES IN THE SHAPE OF A PAYMENT, THAT PAYMENT IS
TO BE ATTRIBUTABLE TO THE INCOME RIGHT RATHER THAN TO THE RIGHT OF
OWNERSHIP OF THE INCOME PRODUCING PROPERTY. 

ON THE OTHER HAND, THE PETITIONERS INSIST THAT THE GOVERNMENT'S
POSITION IS UNREAL AND ARTIFICIAL; THAT IT DOES NOT COMPORT EITHER WITH
ECONOMIC THEORY OR BUSINESS PRACTICE; AND THAT THE REGULATION IS AN
UNWARRANTED EXTENSION OF THE PLAIN MEANING OF THE STATUTE AND CANNOT,
THEREFORE, BE SUSTAINED.  WE HOLD THAT THE PETITIONERS ARE RIGHT. 

IT IS NOT DENIED THAT, IN COMMON UNDERSTANDING, RENTS, INTEREST, AND
DIVIDENDS ARE INCOME.  UNDER THE REVENUE ACTS, IF SUCH ITEMS ARE
COLLECTED BY A DECEDENT'S ESTATE, THE EXECUTORS ARE BOUND TO RETURN
THEM AND PAY TAX UPON THEM AS INCOME.  IN THE CASE OF A LIVING HOLDER,
SUCH RECEIPTS ARE NEVER TREATED AS ON ACCOUNT OF PRINCIPAL.  NOR DOES
THE PROMISE TO PAY INTEREST, RENTS OR DIVIDENDS EITHER TO A LIVING
OWNER OF THE ASSET OR TO HIS EXECUTOR AFTER DEATH, WHICH HAS NOT BEEN
LEGALLY SEPARATED FROM THE ASSET OF WHICH IT IS AN INCIDENT, HAVE ANY
MARKET VALUE APART FROM THE ASSET, OR BEAR ANY INVARIABLE RELATION TO
THE VALUE OF THE CAPITAL ASSET. 

IT IS TRUE THAT A BOND EMBODIES TWO PROMISES, ONE TO PAY THE
PRINCIPAL AT MATURITY, THE OTHER TO PAY INTEREST AT INTERVALS UNTIL
MATURITY.  AND THE PROMISE TO PAY INTEREST OR RENT, OR THE EXPECTANCY
OF DIVIDENDS UPON STOCK, THE AMOUNT OF SUCH PAYMENTS, THE PAST AND
PROSPECTIVE REGULARITY OF THE PAYMENTS, AND OTHER ELEMENTS BEARING UPON
THE EXPECTATION OF THE RECEIPT OF INCOME AFFECT THE VALUE OF ANY INCOME
PRODUCING PROPERTY.  BUT THESE ELEMENTS ARE NOT SEPARATELY VALUED IN
APPRAISING THE WORTH OF THE ASSET AT ANY GIVEN TIME.  IT IS THE UNIFORM
PRACTICE TO VALUE THE ASSET AS AN ENTIRETY, TAKING INTO CONSIDERATION
ALL THE ELEMENTS THAT GO TO GIVE IT VALUE IN THE MARKET. 

IN THE APPRAISAL OF A DECEDENT'S ESTATE, RENT OR INTEREST ACCRUED TO
THE DATE OF DEATH IS PROPERLY TREATED AS A CAPITAL ASSET.  SO ALSO, ON
THE SALE OF AN INTEREST-BEARING SECURITY, IT IS THE UNIFORM PRACTICE TO
ADD TO THE VALUE OF THE OBLIGATION, AS SUCH, ACCRUED INTEREST TO THE
DATE OF SALE.  SINCE THE STATUTE SAYS THAT, AT THE OPTION OF THE
EXECUTOR, A BOND MAY BE VALUED AS OF ONE YEAR SUBSEQUENT TO DECEDENT'S
DEATH, THE NATURAL CONCLUSION IS THAT THE USUAL METHOD OF VALUATION
SHALL BE PURSUED WHICHEVER DATE IS SELECTED.  THE METHOD ALWAYS ADOPTED
FOR VALUATION AT DEATH IS THE SAME USED IN FIXING A SALE PRICE; THAT
IS, TO TAKE THE MARKET VALUE OF THE BOND AND ADD ACCRUED INTEREST TO
THE DATE OF TRANSFER, AT THE RATE STIPULATED IN THE INSTRUMENT.  IT IS
NOT BELIEVED THAT CONGRESS, IN PROVIDING FOR TWO DATES OF VALUATION,
INTENDED THAT A DIFFERENT METHOD SHOULD BE FOLLOWED IF ONE DATE WERE
CHOSEN RATHER THAN THE OTHER. 

IF CONGRESS INTENDED THE RESULT FOR WHICH THE GOVERNMENT CONTENDS,
NAMELY, THAT A DIFFERENT METHOD OF VALUATION SHOULD APPLY AT THE END OF
THE ONE YEAR PERIOD THAN THAT APPLICABLE AS OF THE DATE OF DEATH, IT
WOULD HAVE BEEN A SIMPLE MATTER SO TO STATE.  THAT CONGRESS HAD NO SUCH
INTENTION SEEMS CLEAR FROM THE REPORT OF THE HOUSE MANAGERS ON THE
CONFERENCE COMMITTEE REPORT ON THE BILL WHICH EMBODIED THE LANGUAGE IN
QUESTION.  FN7  THERE AN EXAMPLE IS GIVEN AS TO HOW THE CALCULATION OF
VALUE SHOULD BE MADE AT THE END OF THE YEAR.  IN THIS EXAMPLE,
APPRECIATION AND DEPRECIATION IN THE VALUE OF BONDS, STOCKS, AND OTHER
ASSETS, DURING THE YEAR, ARE SHOWN BUT DIVIDENDS OR INTEREST RECEIVED
ARE NOT INCLUDED. 

AS HAS BEEN SAID, THE VIEW WE TAKE COMPORTS WITH STANDARD BUSINESS
PRACTICE; WHEREAS THE THEORY ADVOCATED BY THE GOVERNMENT INVOLVES THE
ATTRIBUTION TO INTEREST PAYMENTS OF A QUALITY DERIVED FROM A REFINED
SEPARATION OF SO-CALLED RIGHTS INHERENT IN THE OWNERSHIP OF INCOME
PRODUCING PROPERTY.  CONCEDING THAT THE OWNERSHIP OF A BOND INVOLVES
BOTH THE RIGHT TO RECEIVE PRINCIPAL AND THE RIGHT TO RECEIVE INCOME, IT
IS A HIGHLY ARTIFICIAL CONCEPT THAT AN INTEREST PAYMENT IS A
DISPOSITION, PRO TANTO, OF THE LATTER RIGHT BY THE OWNER OF THE
OBLIGATION.  MORE-OVER, WHILE THE CONSTITUTION DOES NOT FORBID DOUBLE
TAXATION, THE INTENT TO IMPOSE IT UPON A GIVEN RECEIPT IS NOT
PRESUMED.  WE THINK THAT, IF IT HAD BEEN INTENDED, CONGRESS
UNEQUIVOCALLY WOULD HAVE SO DECLARED.  JUDGMENTS REVERSED. 

FN1  THE SUBSECTION HAS NOW BEEN EMBODIED IN THE INTERNAL REVENUE
CODE AS SEC. 811(J), 53 STAT. 122, 26 U.S.C. 811(J), AND IS IN PART AS
FOLLOWS: 

"OPTIONAL VALUATION.  IF THE EXECUTOR SO ELECTS UPON HIS RETURN  ...
, THE VALUE OF THE GROSS ESTATE SHALL BE DETERMINED BY VALUING ALL THE
PROPERTY INCLUDED THEREIN ON THE DATE OF THE DECEDENT'S DEATH AS OF THE
DATE ONE YEAR AFTER THE DECEDENT'S DEATH, EXCEPT THAT (1) PROPERTY
INCLUDED IN THE GROSS ESTATE ON THE DATE OF DEATH AND, WITHIN ONE YEAR
AFTER THE DECEDENT'S DEATH, DISTRIBUTED  ...  OR SOLD, EXCHANGED, OR
OTHERWISE DISPOSED OF, SHALL BE INCLUDED AT ITS VALUE AS OF THE TIME OF
SUCH DISTRIBUTION, SALE, EXCHANGE, OR OTHER DISPOSITION, WHICHEVER
FIRST OCCURS, INSTEAD OF ITS VALUE AS OF THE DATE ONE YEAR AFTER THE
DECEDENT'S DEATH, AND (2) ANY INTEREST OR ESTATE WHICH IS AFFECTED BY
MERE LAPSE OF TIME SHALL BE INCLUDED AT ITS VALUE AS OF THE TIME OF
DEATH (INSTEAD OF THE LATER DATE) WITH ADJUSTMENT FOR ANY DIFFERENCE IN
ITS VALUE AS OF THE LATER DATE NOT DUE TO MERE LAPSE OF TIME.  ..." 

FN2  29 F.SUPP.  996. 

FN3  111 F.2D 78. 

FN4  41 B.T.A. 1178, FOUR MEMBERS DISSENTING. 

FN5  114 F.2D 1017. 

FN6  THE DISTRICT COURT FOR MARYLAND HAS DECIDED CONTRARY TO THE
CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT:  CLARK V. UNITED
STATES, 33 F.SUPP.  216. 

FN7  H.R. 1885, 74TH CONG., 1ST SESS., PP. 10-11. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS ARE OF THE VIEW THAT THIS
QUESTION OF STATUTORY CONSTRUCTION IS PECULIARLY APPROPRIATE FOR
ADMINISTRATIVE INTERPRETATION (SEE PAUL, STUDIES IN FEDERAL TAXATION
(3D SERIES) PP. 423-425) AND ACCORDINGLY THAT THE JUDGMENTS IN THESE
CASES SHOULD BE AFFIRMED FOR THE REASONS STATED IN THE OPINION OF THE
COURT BELOW IN NO. 274, SAKS V. HIGGINS, 111 F.2D 78. 
..END :




BERRY V. UNITED STATES, 312 U.S. 450 


NO. 336.  ARGUED FEBRUARY 4, 1941.  - DECIDED MARCH 3, 1941.  - 111 F.2D
615, REVERSED. 


1.  IN THIS SUIT AGAINST THE UNITED STATES TO RECOVER TOTAL PERMANENT
DISABILITY BENEFITS UNDER POLICIES OF WAR RISK INSURANCE, HELD THAT THE
DISTRICT COURT PROPERLY DENIED THE GOVERNMENT'S MOTION FOR A DIRECTED
VERDICT, AND THAT THE EVIDENCE SUSTAINED THE VERDICT FOR THE
PLAINTIFF.  P. 451. 

2.  RULE 50(B) OF THE RULES OF CIVIL PROCEDURE GOES FARTHER THAN THE
OLD PRACTICE IN THAT DISTRICT JUDGES, UNDER CERTAIN CIRCUMSTANCES, ARE
NOW EXPRESSLY DECLARED TO HAVE THE RIGHT (BUT NOT THE MANDATORY DUTY)
TO ENTER A JUDGMENT CONTRARY TO THE JURY'S VERDICT WITHOUT GRANTING A
NEW TRIAL; BUT IT HAS NOT TAKEN AWAY FROM JURIES AND GIVEN TO JUDGES
ANY PART OF THE EXCLUSIVE POWER OF JURIES TO WEIGH EVIDENCE AND
DETERMINE CONTESTED ISSUES OF FACT.  P. 452. 

3.  THE JURY PROPERLY COULD HAVE FOUND FROM THE EVIDENCE IN THIS CASE
THAT, AS A RESULT OF INJURIES SUFFERED IN THE WORLD WAR, AND WHILE HIS
POLICIES OF WAR RISK INSURANCE WERE IN FORCE, THE PLAINTIFF BECAME
TOTALLY AND PERMANENTLY DISABLED WITHIN THE MEANING OF THE POLICIES AND
HAS SINCE REMAINED SO, IN THAT HE HAS NOT SINCE BEEN ABLE, AND WILL NOT
AGAIN BE ABLE, TO WORK WITH ANY REASONABLE REGULARITY AT ANY
SUBSTANTIALLY GAINFUL EMPLOYMENT.  P. 453. 

TO JUSTIFY A FINDING OF TOTAL AND PERMANENT DISABILITY, IT IS NOT
NECESSARY THAT THE INSURED BE BEDRIDDEN AND HELPLESS, OR THAT HE SHOULD
NOT HAVE UNDERTAKEN ANY WORK OF ANY KIND.  P. 455. 

4.  THAT THIRTEEN YEARS ELAPSED BEFORE SUIT WAS BROUGHT IN THIS CASE
DOES NOT BAR RECOVERY, BUT IS A CIRCUMSTANCE TO BE WEIGHED BY THE JURY
WITH THE OTHER EVIDENCE.  P. 456. 

BERRY V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 633, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PLAINTIFF IN A SUIT UPON POLICIES OF WAR RISK INSURANCE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER SUED THE UNITED STATES IN A FEDERAL DISTRICT COURT,
ALLEGING THAT HE BECAME TOTALLY AND PERMANENTLY DISABLED PRIOR TO
DECEMBER 1, 1919, WHILE HIS POLICIES OF WAR RISK INSURANCE WERE IN
FORCE AND EFFECT.  FN1  TRIAL WAS HAD AND EVIDENCE HEARD.  THE TRIAL
JUDGE DECLINED TO GRANT THE GOVERNMENT'S REQUEST FOR A DIRECTED VERDICT
IN ITS FAVOR.  THE JURY FOUND FOR PETITIONER.  THE GOVERNMENT, WITHOUT
HAVING MADE ANY MOTION EITHER FOR A NEW TRIAL OR FOR JUDGMENT
NOTWITHSTANDING THE VERDICT, TOOK THE CASE TO THE CIRCUIT COURT OF
APPEALS.  UPON REVIEW THAT COURT HELD PLAINTIFF HAD NOT PRODUCED
SUFFICIENT EVIDENCE TO JUSTIFY SUBMISSION OF THE CAUSE TO THE JURY. 
THE COURT DID NOT, HOWEVER, REMAND THE CASE TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS, BUT REVERSED THE JUDGMENT AND DISMISSED THE CAUSE
OF ACTION.  FN2 

THE PETITION FOR CERTIORARI PRESENTED TWO QUESTIONS:  FIRST, WHETHER
THERE WAS SUFFICIENT EVIDENCE TO SUSTAIN THE VERDICT; SECOND, WHETHER
THE CIRCUIT COURT OF APPEALS ERRED IN DISMISSING THE CAUSE INSTEAD OF
REMANDING IT FOR A NEW TRIAL.  THIS SECOND QUESTION INVOKED OUR
JURISDICTION IN ORDER TO OBTAIN AN AUTHORITATIVE CONSTRUCTION OF
SUBDIVISION (B) OF RULE 50 OF THE RULES OF CIVIL PROCEDURE.  IN PART
THAT SUBDIVISION PROVIDES:  "WHENEVER A MOTION FOR A DIRECTED VERDICT
MADE AT THE CLOSE OF ALL THE EVIDENCE IS DENIED OR FOR ANY REASON IS
NOT GRANTED, THE COURT IS DEEMED TO HAVE SUBMITTED THE ACTION TO THE
JURY SUBJECT TO A LATER DETERMINATION OF THE LEGAL QUESTIONS RAISED BY
THE MOTION.  WITHIN 10 DAYS AFTER THE RECEPTION OF A VERDICT, A PARTY
WHO HAS MOVED FOR A DIRECTED VERDICT MAY MOVE TO HAVE THE VERDICT AND
ANY JUDGMENT ENTERED THEREON SET ASIDE AND TO HAVE JUDGMENT ENTERED IN
ACCORDANCE WITH HIS MOTION FOR A DIRECTED VERDICT; ...  " SINCE THE
GOVERNMENT MADE NO SUCH MOTION WITHIN 10 DAYS AFTER THE VERDICT,
PETITIONER URGED HERE THAT THE CIRCUIT COURT OF APPEALS WAS WITHOUT
POWER TO DISMISS THE CAUSE BUT SHOULD HAVE REMANDED IT FOR A NEW
TRIAL.  BUT WHILE THIS IMPORTANT POINT, UPON WHICH THE CIRCUIT COURTS
OF APPEALS ARE NOT IN COMPLETE AGREEMENT N3, IS ONE OF THE TWO
QUESTIONS UPON WHICH THE PETITION FOR CERTIORARI RESTED, THERE IS NO
OCCASION FOR US TO REACH IT HERE.  FOR WE FIND THAT THERE WAS
SUFFICIENT EVIDENCE TO SUSTAIN THE JURY'S VERDICT, AND WE HOLD THAT THE
DISTRICT COURT PROPERLY DENIED THE GOVERNMENT'S MOTION FOR A DIRECTED
VERDICT IN ITS FAVOR. 

RULE 50(B) GOES FURTHER THAN THE OLD PRACTICE  FN4  IN THAT DISTRICT
JUDGES, UNDER CERTAIN CIRCUMSTANCES, ARE NOW EXPRESSLY DECLARED TO HAVE
THE RIGHT (BUT NOT THE MANDATORY DUTY) TO ENTER A JUDGMENT CONTRARY TO
THE JURY'S VERDICT WITHOUT GRANTING A NEW TRIAL.  FN5  BUT THAT RULE
HAS NOT TAKEN AWAY FROM JURIES AND GIVEN TO JUDGES ANY PART OF THE
EXCLUSIVE POWER OF JURIES TO WEIGH EVIDENCE AND DETERMINE CONTESTED
ISSUES OF FACT FN6  - A JURY BEING THE CONSTITUTIONAL TRIBUNAL PROVIDED
FOR TRYING FACTS IN COURTS OF LAW.  HERE, ALTHOUGH THERE WAS EVIDENCE
FROM WHICH A JURY COULD HAVE REACHED A CONTRARY CONCLUSION, THERE WAS
TESTIMONY FROM WHICH A JURY COULD HAVE FOUND THESE TO BE THE FACTS:
PETITIONER SUFFERED INJURIES ON JUNE 16, 1918, WHILE SERVING IN THE
FRONT LINES IN FRANCE.  ON THAT DATE, IN THE EARLY MORNING HOURS, BITS
OF SHRAPNEL WOUNDED HIM IN THE RIGHT ARM, RIGHT SHOULDER, RIGHT HIP AND
IN FRONT OF THE RIGHT EAR.  HE WAS HELPED TO A DUGOUT BY ANOTHER
SOLDIER.  THERE HE FOUND OTHERS WHO WERE WOUNDED.  ABOUT FIFTEEN
MINUTES AFTER HE ARRIVED AT THE DUGOUT, ANOTHER SHELL STRUCK,
IMMEDIATELY IN FRONT OF THE DUGOUT DOOR.  ALL THE NINE OR TEN MEN
PRESENT WERE EITHER KILLED OUTRIGHT OR WERE SO BADLY WOUNDED THAT THEY
WERE UNABLE TO LEAVE.  PETITIONER'S LEFT LEG WAS PRACTICALLY CUT OFF
BELOW THE KNEE.  HE TWISTED A PART OF HIS WRAPPED LEGGINGS AROUND HIS
WOUND TO STOP THE BLEEDING.  ABOUT SIX AND ONE-HALF HOURS LATER HE WAS
TAKEN ON A STRETCHER AND CARRIED BACK TO THE FIRST AID STATION.  THERE
HIS WOUNDS WERE TEMPORARILY DRESSED.  AFTER ANOTHER SIX OR SEVEN HOURS,
HE WAS CARRIED TO THE HOSPITAL.  SHORTLY THEREAFTER AN OPERATION
FOLLOWED AND HIS LEFT LEG WAS REMOVED.  HE UNDERWENT SEVERAL OPERATIONS
IN THE HOSPITALS IN FRANCE, LEAVING THAT COUNTRY FOR THE UNITED STATES
IN AUGUST OF 1918 AND ARRIVING IN BOSTON ON SEPTEMBER 7.  HE WAS
TREATED IN HOSPITALS IN THE UNITED STATES UNTIL ABOUT CHRISTMAS, 1918. 
DURING THE YEARS BETWEEN THE TIME OF THE INJURY AND THE TIME OF THE
TRIAL, PETITIONER SUFFERED REPEATEDLY FROM ABSCESSES AND BLISTERS ON
THE STUMP OF HIS LEFT LEG, AND HIS RIGHT LEG HAS CAUSED HIM
INCONVENIENCE, SUFFERING AND DISABILITY.  IN ADDITION HIS NERVOUS
SYSTEM HAS SHOWN SERIOUS AND CONTINUOUS IMPAIRMENT, SO MUCH SO THAT THE
CIRCUIT COURT OF APPEALS PROPERLY SAID, "CERTAIN IT IS THAT HE WAS
NEURASTHENIC, AND HAD UNCONTROLLABLE ACCESSES OF TERROR AT ANY
EXPLOSION, OR EVEN DURING THUNDERSTORMS."  THERE HAS NEVER BEEN A TIME
SINCE HIS INJURIES WHEN HE COULD DO WORK WHICH REQUIRED HIM TO STAND
UPON OR USE THE STUMP WITHOUT HAVING IT BLISTERED, CHAFED OR ABSCESSED
WITHIN TWO DAYS.  SEVERAL PHYSICIANS WHO EXAMINED AND TREATED HIM
THROUGH THE YEARS WERE OF OPINION THAT HE WOULD NEVER BE ABLE TO WORK
CONTINUOUSLY AT A GAINFUL OCCUPATION BECAUSE OF HIS CONDITION, AND THAT
HE HAD NEVER BEEN ABLE SO TO WORK SINCE THE WOUND WAS RECEIVED.  THE
GOVERNMENT GAVE HIM VOCATIONAL TRAINING BOTH IN PHOTOGRAPHY AND IN
AUTOMOBILE REPAIR WORK.  HE TRIED BOTH, BUT FROM HIS OWN EVIDENCE,
CORROBORATED BY THAT OF HIS EMPLOYERS IN MANY INSTANCES, THE JURY COULD
HAVE FOUND THAT IN SPITE OF HIS DETERMINATION TO SUCCEED, HE WAS
PHYSICALLY UNABLE TO DO SO.  HE BOUGHT A FARM.  HE WAS COMPELLED TO
DEPEND ON THE WORK OF HIS OWN FAMILY AND RELATIVES IN THIS UNDERTAKING,
BUT THE VENTURE WAS A FAILURE AND HE LOST THE FARM.  HE TRIED TO
OPERATE A GARAGE IN PARTNERSHIP WITH ANOTHER.  IN THIS, TOO, HE WAS
UNSUCCESSFUL, AND THE JURY COULD HAVE FOUND THAT HIS FAILURE WAS
ATTRIBUTABLE TO HIS PHYSICAL DISABILITIES.  FOR A TIME HE WAS ENGAGED
AS A SALESMAN OF ALUMINUM COOKING UTENSILS.  BUT HERE AGAIN THE JURY
COULD HAVE FOUND THAT HIS CONTRIBUTION TO THE VENTURE WAS SMALL.  FOR,
AS ELSEWHERE, THERE WAS TESTIMONY TENDING TO SHOW THAT IT WAS A MEMBER
OF HIS FAMILY, IN THIS INSTANCE HIS WIFE, WHOSE LABORS MADE IT POSSIBLE
FOR THIS ACTIVITY TO BE CARRIED ON.  TAKING THE EVIDENCE AS A WHOLE,
THE JURORS, WHO HEARD THE WITNESSES AND PERSONALLY EXAMINED THE
PETITIONER'S WOUNDS, COULD FAIRLY HAVE REACHED THE CONCLUSION THAT
SINCE HIS INJURIES PETITIONER NEVER HAD BEEN ABLE, AND WOULD NOT BE
ABLE THEREAFTER, TO WORK WITH ANY REASONABLE DEGREE OF REGULARITY AT
ANY SUBSTANTIALLY GAINFUL EMPLOYMENT.  THE TRIAL JUDGE, WHO HAD THE
SAME OPPORTUNITY AS THE JURY TO HEAR THE WITNESSES, DENIED THE
GOVERNMENT'S MOTION FOR A DIRECTED VERDICT AND CORRECTLY INSTRUCTED THE
JURY WHAT THEY MUST FIND FROM THE EVIDENCE IN ORDER TO RETURN A VERDICT
FOR PETITIONER.  FN7 

IT WAS NOT NECESSARY THAT PETITIONER BE BEDRIDDEN, WHOLLY HELPLESS,
OR THAT HE SHOULD ABANDON EVERY POSSIBLE EFFORT TO WORK IN ORDER FOR
THE JURY TO FIND THAT HE WAS TOTALLY AND PERMANENTLY DISABLED.  FN8  IT
CANNOT BE DOUBTED THAT IF PETITIONER HAD REFRAINED FROM TRYING TO DO
ANY WORK AT ALL, AND THE SAME EVIDENCE OF PHYSICAL IMPAIRMENT WHICH
APPEARS IN THIS RECORD HAD BEEN OFFERED, A JURY COULD HAVE PROPERLY
FOUND HIM TOTALLY AND PERMANENTLY DISABLED.  AND THE JURY COULD HAVE
FOUND THAT HIS EFFORTS TO WORK - ALL OF WHICH SOONER OR LATER RESULTED
IN FAILURE - WERE MADE NOT BECAUSE OF HIS ABILITY TO WORK BUT BECAUSE
OF HIS UNWILLINGNESS TO LIVE A LIFE OF IDLENESS, EVEN THOUGH TOTALLY
AND PERMANENTLY DISABLED WITHIN THE MEANING OF HIS POLICIES.  FN9 NOR
DOES THE FACT THAT HE WAITED THIRTEEN YEARS BEFORE BRINGING SUIT STAND
AS AN INSUPERABLE BARRIER TO HIS RECOVERY.  HIS CASE WAS NOT BARRED BY
ANY STATUTE OF LIMITATIONS.  WHATEVER WEIGHT THE JURY SHOULD HAVE GIVEN
TO THE CIRCUMSTANCE OF PETITIONER'S DELAY IN FILING HIS CLAIM, THAT
WEIGHT WAS STILL FOR THEIR CONSIDERATION IN CONNECTION WITH ALL THE
OTHER EVIDENCE IN THE CASE. 

THERE WAS EVIDENCE FROM WHICH A JURY COULD REACH THE CONCLUSION THAT
PETITIONER WAS TOTALLY AND PERMANENTLY DISABLED.  THAT WAS ENOUGH.  THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED, AND THAT OF THE
DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  THOUGH PETITIONER ALLEGED THAT HIS POLICIES WERE IN EFFECT UNTIL
DECEMBER 1, 1919, IN REALITY IT WAS NECESSARY FOR HIM TO SHOW THAT HE
BECAME TOTALLY AND PERMANENTLY DISABLED PRIOR TO SEPTEMBER 1, 1919. 
THIS VARIANCE IN DATES IS NOT MATERIAL, HOWEVER. 

FN2  111 F.2D 615. 

FN3  COMPARE CONWAY V. O'BRIEN, 111 F.2D 611, 613(C.C.A.2D),
REVERSED, POST, P. 492, WITH PRUITT V. HARDWARE DEALERS MUTUAL FIRE
INS. CO., 112 F.2D 140, 143(C.C.A.5TH).  AND SEE UNITED STATES V.
HALLIDAY, 116 F.2D 812(C.C.A.4TH). 

FN4  COMPARE SLOCUM V. NEW YORK LIFE INSURANCE CO., 228 U.S. 364,
WITH BALTIMORE & CAROLINA LINE V. REDMAN, 295 U.S. 654. 

FN5  THE RELEVANT PORTION OF THE RULE PROVIDES:  "IF A VERDICT WAS
RETURNED THE COURT MAY ALLOW THE JUDGMENT TO STAND OR MAY REOPEN THE
JUDGMENT AND EITHER ORDER A NEW TRIAL OR DIRECT THE ENTRY OF JUDGMENT
AS IF THE REQUESTED VERDICT HAD BEEN DIRECTED." 

FN6 SEE GUNNING V. COOLEY, 281 U.S. 90, 94; RICHMOND & DANVILLE R.
CO. V. POWERS, 149 U.S. 43, 45; TEXAS & PACIFIC RY. CO. V. COX, 145
U.S. 593, 606; RAILROAD CO. V. STOUT, 17 WALL.  657, 663. 

FN7  THE GOVERNMENT EXPRESSED SATISFACTION WITH THE TRIAL JUDGE'S
CHARGE, WHICH, AS TO TOTAL AND PERMANENT DISABILITY, CONTAINED THIS
STATEMENT:  "A TOTAL DISABILITY IS ANY PHYSICAL OR NERVOUS INJURY WHICH
MAKES IT IMPOSSIBLE FOR A PERSON TO FOLLOW CONTINUOUSLY A SUBSTANTIALLY
GAINFUL OCCUPATION AT ANY KIND OF WORK FOR WHICH HE WAS COMPETENT OR
QUALIFIED, PHYSICALLY AND MENTALLY, OR FOR WHICH HE COULD QUALIFY
HIMSELF BY A REASONABLE AMOUNT OF STUDY AND TRAINING.  THE WORD 'TOTAL'
AS APPLIED TO 'DISABILITY' DOES NOT NECESSARILY MEAN INCAPACITATED TO
DO ANY WORK AT ALL.  THE WORD 'CONTINUOUSLY' MEANS WITH REASONABLE
REGULARITY.  IT DOES NOT PRECLUDE PERIODS OF DISABILITY WHICH ARE
ORDINARILY INCIDENT TO ACTIVITIES OF PERSONS IN GENERALLY SOUND HEALTH,
FOR NEARLY ALL PERSONS ARE AT TIMES TEMPORARILY INCAPACITATED BY
INJURIES, OR POOR HEALTH, FROM CARRYING ON THEIR OCCUPATIONS.  IF BERRY
WAS ABLE TO FOLLOW A GAINFUL OCCUPATION ONLY SPASMODICALLY, WITH
FREQUENT INTERRUPTIONS, DUE TO HIS INJURIES, AND HIS SHOCK, HE WAS
TOTALLY DISABLED.  A DISABILITY IS PERMANENT WHEN IT IS OF SUCH A
NATURE THAT IT IS REASONABLY CERTAIN IT WILL CONTINUE THROUGHOUT A
PERSON'S LIFETIME." 

FN8  LUMBRA V. UNITED STATES, 290 U.S. 551, 559-560. 

FN9  SEE UNITED STATES V. RICE, 72 F.2D 676, 677; NICOLAY V. UNITED
STATES, 51 F.2D 170, 173; UNITED STATES V. LAWSON, 50 F.2D 646, 651;
UNITED STATES V. GODFREY, 47 F.2D 126, 127; UNITED STATES V. PHILLIPS,
44 F.2D 689, 691. 
..END :





FASHION GUILD V. TRADE COMM'N, 312 U.S. 457 


NO. 537.  ARGUED FEBRUARY 10, 1941.  - DECIDED MARCH 3, 1941.  - 114
F.2D 80, AFFIRMED. 


A COMBINATION OF MANUFACTURERS OF WOMEN'S GARMENTS AND MANUFACTURERS
OF TEXTILES USED IN THEIR MAKING, WHO CLAIMED THAT THE DESIGNS OF THEIR
PRODUCTS, THOUGH NOT PROTECTED BY PATENT OR COPYRIGHT, WERE ORIGINAL
AND DISTINCTIVE, SOUGHT TO SUPPRESS COMPETITION BY OTHERS WHO COPIED
THEIR DESIGNS AND SOLD AT GENERALLY LOWER PRICES.  TO THIS END, THOSE
IN THE COMBINATION SYSTEMATICALLY REGISTERED THEIR DESIGNS AND REFUSED
ALL SALES TO MANUFACTURERS AND RETAILERS OF GARMENTS WHO DEALT IN THE
COPIES OR WOULD NOT AGREE NOT TO SELL THEM.  TO AID IN EFFECTUATING THE
BOYCOTT, THE COMBINATION EMPLOYED "SHOPPERS" TO VISIT RETAILERS'
STORES, ESTABLISHED TRIBUNALS TO DETERMINE WHETHER GARMENTS WERE COPIES
OF DESIGNS REGISTERED, AUDITED THE BOOKS OF ITS MEMBERS, FINED THEM FOR
VIOLATIONS OF ITS REGULATIONS, ETC.  IN VIEW OF THESE THINGS, AND THE
POWER OF THE COMBINATION AND ITS EFFECT UPON SALES IN INTERSTATE
COMMERCE, THE FEDERAL TRADE COMMISSION CONCLUDED THAT THE PRACTICES OF
THE COMBINATION CONSTITUTED UNFAIR METHODS OF COMPETITION TENDING TO
MONOPOLY AND ISSUED A "CEASE AND DESIST" ORDER.  HELD: 

1.  THAT THE CONCLUSION OF THE COMMISSION WAS BASED ON ADEQUATE AND
UNCHALLENGED FINDINGS AND WAS CORRECT.  P. 463. 

2.  WHERE THE PURPOSE AND PRACTICE OF A COMBINATION RUN COUNTER TO
THE PUBLIC POLICY DECLARED IN THE SHERMAN AND CLAYTON ACTS, THE FEDERAL
TRADE COMMISSION HAS THE POWER TO SUPPRESS IT AS AN UNFAIR METHOD OF
COMPETITION.  P. 463. 

3.  A PRACTICE SHORT OF A COMPLETE MONOPOLY BUT WHICH TENDS TO CREATE
A MONOPOLY AND TO DEPRIVE THE PUBLIC OF THE ADVANTAGES FROM FREE
COMPETITION IN INTERSTATE TRADE, OFFENDS THE POLICY OF THE SHERMAN
ACT.  P. 466. 

4.  A COMBINATION MAY BE CONTRARY TO THE POLICY OF THE SHERMAN AND
CLAYTON ACTS THOUGH IT DOES NOT TEND TO FIX OR REGULATE PRICES, PARCEL
OUT OR LIMIT PRODUCTION, OR BRING ABOUT A DETERIORATION IN QUALITY.  P.
466. 

IT WAS THE OBJECT OF THE FEDERAL TRADE COMMISSION ACT TO REACH IN
THEIR INCIPIENCY COMBINATIONS WHICH COULD LEAD TO THESE AND OTHER TRADE
RESTRAINTS AND PRACTICES DEEMED UNDESIRABLE. 

5.  SINCE THE PURPOSE AND OBJECT OF THIS COMBINATION, ITS POTENTIAL
POWER, ITS TENDENCY TO MONOPOLY, THE COERCION IT COULD AND DID PRACTICE
UPON A RIVAL METHOD OF COMPETITION, ALL BROUGHT IT WITHIN THE
PROHIBITION DECLARED BY THE SHERMAN AND CLAYTON ACTS, IT WAS NOT
ERRONEOUS TO EXCLUDE EVIDENCE OFFERED TO PROVE THAT THE PRACTICES WERE
REASONABLE AND NECESSARY FOR THE PROTECTION OF MANUFACTURER, LABORER,
RETAILER AND CONSUMER AGAINST THE EVILS GROWING FROM THE PIRATING OF
ORIGINAL DESIGNS.  P. 467. 

6.  WHETHER OR NOT SYSTEMATIC COPYING OF THE DRESS DESIGNS BY TRADE
COMPETITORS IS IN ITSELF TORTIOUS IS A QUESTION OF STATE LAW; BUT EVEN
IF TORTIOUS UNDER THE LAWS OF ALL THE STATES, THAT CIRCUMSTANCE WOULD
NOT JUSTIFY A COMBINATION TO SUPPRESS IT BY REGULATING AND RESTRAINING
INTERSTATE COMMERCE IN VIOLATION OF FEDERAL LAW.  P. 468. 

FASHION ORIGINATORS' GUILD OF AMERICA, INC., ET AL. V. FEDERAL TRADE
COMMISSION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 641, TO REVIEW THE AFFIRMANCE BY THE COURT BELOW
OF A "CEASE AND DESIST" ORDER OF THE FEDERAL TRADE COMMISSION. 

THE PETITIONERS' PROGRAM DOES NOT VIOLATE SEC. 5 BECAUSE ITS SOLE
CONSEQUENCE IS TO CURB THE UNLAWFUL COMPETITION OF THE STYLE PIRATE. 
"STYLE PIRACY" IS UNFAIR COMPETITION IN WHICH THE COPYIST HAS NO RIGHT
TO ENGAGE.  INTERNATIONAL NEWS SERVICE CO. V. ASSOCIATED PRESS, 248
U.S. 215; SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495, 532; CALLMAN,
STYLE & DESIGN PIRACY, 22 JOURNAL OF PATENT OFFICE, 578, 586; 47 HARV.
L. REV. 1419, 1426-1427; NOTE (1930), 14 MINN. L. REV. 537.  CF.
ROGERS, UNFAIR COMPETITION, 17 MICH. L. REV. 490; HANDLER, UNFAIR
COMPETITION, 21 IOWA L. REV. 175, 191. 

"UNFAIR COMPETITION" IS ESSENTIALLY A BRANCH OF THE LAW OF TORTS.  A
MAN'S INTEREST IN HIS BUSINESS IS A SUBJECT OF PROTECTION AGAINST
UNLAWFUL INVASION BY OTHERS.  INDEED, EQUITY CALLS IT A PROPERTY RIGHT
AND WILL ENJOIN UNLAWFUL INTERFERENCES.  TRUAX V. CORRIGAN, 257 U.S.
312, 327; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510; MOSLER SAFE CO.
V. ELY NORRIS SAFE CO., 273 U.S. 132; THE CASE OF THE SCHOOLMASTERS,
Y.B. 11 HEN.  4, F. 47, PL. 21.  THE INJURED TRADER HAS A REMEDY
WHENEVER HE SHOWS THAT THE OTHER INVADED HIS INTEREST IN HIS BUSINESS
BY LESSENING HIS PROSPECT OF CUSTOMERS BY AN ACT WHICH SOCIETY
CONDEMNS. 

CLEAR AND IMMEDIATE INJURY TO THE DESIGN ORIGINATOR'S BUSINESS FLOWS
FROM THE CONDUCT OF THE COPYIST.  THE CONDUCT OF THE COPYIST IS
"WRONGFUL," THAT IS TO SAY, IT IS CONDEMNED BY BOTH THE COURTS AND
SOCIETY.  MONTEGUT V. HICKSON, 178 APP. DIV. 94; MARGOLIS V. NATIONAL
BELLAS HESS CO., 139 MISC. 738.  HE SYSTEMATICALLY, MECHANICALLY AND
CONTINUOUSLY APPROPRIATES THE FRUITS OF THE CREATOR'S SKILL, LABOR AND
EXPENSE.  HE IS NOT LIKE THE WIDE-AWAKE COMPETITOR WHO ESPIES AND FILLS
A PARTICULAR DEMAND THAT ANOTHER MAY FIRST HAVE NOTICED. 

THE FEDERAL TRADE COMMISSION ITSELF HAS SPECIFICALLY CONDEMNED THE
PIRACY OF PATTERNS, STYLES AND DESIGNS.  IN MANY INDUSTRIES IT HAS
ACCEPTED RULES PROPOSED IN TRADE PRACTICE CONFERENCES WHICH
UNEQUIVOCALLY CONDEMNED THE PRACTICE OF COPYING COMPETITORS'
CREATIONS. 

THE SOLE CONSEQUENCE OF THE FOGA PROGRAM IS TO LIMIT THE UNLAWFUL
ACTIVITIES OF THE STYLE PIRATES AND OF THE RETAILERS WHO JOIN THEM. 

A METHOD OF COMPETITION WHICH HAS NO EFFECT EXCEPT TO LIMIT THE
UNFAIR COMPETITION OF OTHERS IS NOT A VIOLATION OF SEC. 5.  FEDERAL
TRADE COMM'N V. BUTTERICK PUB. CO., 85 F.2D 522. 

TO A TRADER. 

THE ACT DOES NOT PROTECT FROM INTERFERENCE TRADE WHICH HAS NO RIGHT
TO EXIST.  THE ACT IS INTENDED ALSO TO PROTECT THE PUBLIC.  SEE FEDERAL
TRADE COMM'N V. ROYAL MILLING CO., 288 U.S. 212; FEDERAL TRADE COMM'N
V. R. F. KEPPEL & BRO., 291 U.S. 304.  CONGRESS DID NOT INTEND TO VEST
THE FEDERAL TRADE COMMISSION WITH JURISDICTION TO PREVENT METHODS OF
COMPETITION WHICH HAVE NO CONSEQUENCES EXCEPT TO LIMIT THOSE ACTIVITIES
OF OTHERS WHICH ARE UNFAIR AND WHICH EQUITY WOULD FORBID. 

THE FEDERAL TRADE COMMISSION ERRED IN REFUSING TO HEAR EVIDENCE OF
THE ECONOMIC JUSTIFICATION FOR THE FOGA PROGRAM.  THE PROFFERED
EVIDENCE WAS RELEVANT AND MATERIAL TO A DETERMINATION OF WHETHER THE
PETITIONERS WERE VIOLATING THE SHERMAN ACT.  IT WAS RELEVANT AND
MATERIAL TO A DETERMINATION OF WHETHER THE PETITIONERS' CONDUCT WAS
TORTIOUS AT COMMON LAW. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS, WITH MODIFICATIONS NOT HERE CHALLENGED,
AFFIRMED A FEDERAL TRADE COMMISSION DECREE ORDERING PETITIONERS TO
CEASE AND DESIST FROM CERTAIN PRACTICES FOUND TO HAVE BEEN DONE IN
COMBINATION AND TO CONSTITUTE "UNFAIR METHODS OF COMPETITION" TENDING
TO MONOPOLY.  FN1  DETERMINATION OF THE CORRECTNESS OF THE DECISION
BELOW REQUIRES CONSIDERATION OF THE SHERMAN, CLAYTON, AND FEDERAL TRADE
COMMISSION ACTS.  FN2 

SOME OF THE MEMBERS OF THE COMBINATION DESIGN, MANUFACTURE, SELL AND
DISTRIBUTE WOMEN'S GARMENTS - CHIEFLY DRESSES.  OTHERS ARE
MANUFACTURERS, CONVERTERS OR DYERS OF TEXTILES FROM WHICH THESE
GARMENTS ARE MADE.  FASHION ORIGINATORS' GUILD OF AMERICA (FOGA), AN
ORGANIZATION CONTROLLED BY THESE GROUPS, IS THE INSTRUMENT THROUGH
WHICH PETITIONERS WORK TO ACCOMPLISH THE PURPOSES CONDEMNED BY THE
COMMISSION.  THE GARMENT MANUFACTURERS CLAIM TO BE CREATORS OF ORIGINAL
AND DISTINCTIVE DESIGNS OF FASHIONABLE CLOTHES FOR WOMEN, AND THE
TEXTILE MANUFACTURERS CLAIM TO BE CREATORS OF SIMILAR ORIGINAL FABRIC
DESIGNS.  AFTER THESE DESIGNS ENTER THE CHANNELS OF TRADE, OTHER
MANUFACTURERS SYSTEMATICALLY MAKE AND SELL COPIES OF THEM, THE COPIES
USUALLY SELLING AT PRICES LOWER THAN THE GARMENTS COPIED.  PETITIONERS
CALL THIS PRACTICE OF COPYING UNETHICAL AND IMMORAL, AND GIVE IT THE
NAME OF "STYLE PIRACY."  AND ALTHOUGH THEY ADMIT THAT THEIR "ORIGINAL
CREATIONS" ARE NEITHER COPYRIGHTED NOR PATENTED, AND INDEED ASSERT THAT
EXISTING LEGISLATION AFFORDS THEM NO PROTECTION AGAINST COPYISTS, THEY
NEVERTHELESS URGE THAT SALE OF COPIED DESIGNS CONSTITUTES AN UNFAIR
TRADE PRACTICE AND A TORTIOUS INVASION OF THEIR RIGHTS.  BECAUSE OF
THESE ALLEGED WRONGS, PETITIONERS, WHILE CONTINUING TO COMPETE WITH ONE
ANOTHER IN MANY RESPECTS, COMBINED AMONG THEMSELVES TO COMBAT AND, IF
POSSIBLE, DESTROY ALL COMPETITION FROM THE SALE OF GARMENTS WHICH ARE
COPIES OF THEIR "ORIGINAL CREATIONS."  THEY ADMIT THAT TO DESTROY SUCH
COMPETITION THEY HAVE IN COMBINATION PURPOSELY BOYCOTTED AND DECLINED
TO SELL THEIR PRODUCTS TO RETAILERS WHO FOLLOW A POLICY OF SELLING
GARMENTS COPIED BY OTHER MANUFACTURERS FROM DESIGNS PUT OUT BY GUILD
MEMBERS.  AS A RESULT OF THEIR EFFORTS, APPROXIMATELY 12,000 RETAILERS
THROUGHOUT THE COUNTRY HAVE SIGNED AGREEMENTS TO "COOPERATE" WITH THE
GUILD'S BOYCOTT PROGRAM, BUT MORE THAN HALF OF THESE SIGNED THE
AGREEMENTS ONLY BECAUSE CONSTRAINED BY THREATS THAT GUILD MEMBERS WOULD
NOT SELL TO RETAILERS WHO FAILED TO YIELD TO THEIR DEMANDS - THREATS
THAT HAVE BEEN CARRIED OUT BY THE GUILD PRACTICE OF PLACING ON RED
CARDS THE NAMES OF NON-COOPERATORS (TO WHOM NO SALES ARE TO BE MADE),
PLACING ON WHITE CARDS THE NAMES OF COOPERATORS (TO WHOM SALES ARE TO
BE MADE), AND THEN DISTRIBUTING BOTH SETS OF CARDS TO THE
MANUFACTURERS. 

THE ONE HUNDRED AND SEVENTY-SIX MANUFACTURERS OF WOMEN'S GARMENTS WHO
ARE MEMBERS OF THE GUILD OCCUPY A COMMANDING POSITION IN THEIR LINE OF
BUSINESS.  IN 1936, THEY SOLD IN THE UNITED STATES MORE THAN 38% OF ALL
WOMEN'S GARMENTS WHOLESALING AT $6.75 AND UP, AND MORE THAN 60% OF
THOSE AT $10.75 AND ABOVE.  THE POWER OF THE COMBINATION IS GREAT;
COMPETITION AND THE DEMAND OF THE CONSUMING PUBLIC MAKE IT NECESSARY
FOR MOST RETAIL DEALERS TO STOCK SOME OF THE PRODUCTS OF THESE
MANUFACTURERS.  AND THE POWER OF THE COMBINATION IS MADE EVEN GREATER
BY REASON OF THE AFFILIATION OF SOME MEMBERS OF THE NATIONAL FEDERATION
OF TEXTILES, INC. - THAT BEING AN ORGANIZATION COMPOSED OF ABOUT ONE
HUNDRED TEXTILE MANUFACTURERS, CONVERTERS, DYERS, AND PRINTERS OF SILK
AND RAYON USED IN MAKING WOMEN'S GARMENTS.  THOSE MEMBERS OF THE
FEDERATION WHO ARE AFFILIATED WITH THE GUILD HAVE AGREED TO SELL THEIR
PRODUCTS ONLY TO THOSE GARMENT MANUFACTURERS WHO HAVE IN TURN AGREED TO
SELL ONLY TO COOPERATING RETAILERS. 

THE GUILD MAINTAINS A DESIGN REGISTRATION BUREAU FOR GARMENTS, AND THE
TEXTILE FEDERATION MAINTAINS A SIMILAR BUREAU FOR TEXTILES.  THE GUILD
EMPLOYS "SHOPPERS" TO VISIT THE STORES OF BOTH COOPERATING AND NON
COOPERATING RETAILERS, "FOR THE PURPOSE OF EXAMINING THEIR STOCKS, TO
DETERMINE AND REPORT AS TO WHETHER THEY CONTAIN  ...  COPIES OF
REGISTERED DESIGNS  ...  "  AN ELABORATE SYSTEM OF TRIAL AND APPELLATE
TRIBUNALS EXISTS, FOR THE DETERMINATION OF WHETHER A GIVEN GARMENT IS
IN FACT A COPY OF A GUILD MEMBER'S DESIGN.  IN ORDER TO ASSURE THE
SUCCESS OF ITS PLAN OF REGISTRATION AND RESTRAINT, AND TO ASCERTAIN
WHETHER GUILD REGULATIONS ARE BEING VIOLATED, THE GUILD AUDITS ITS
MEMBERS' BOOKS.  AND IF VIOLATIONS OF GUILD REQUIREMENTS ARE
DISCOVERED, AS, FOR EXAMPLE, SALES TO RED-CARDED RETAILERS, THE
VIOLATORS ARE SUBJECT TO HEAVY FINES.  FN3 

IN ADDITION TO THE ELEMENTS OF THE AGREEMENT SET OUT ABOVE, ALL OF
WHICH RELATE MORE OR LESS CLOSELY TO COMPETITION BY SO-CALLED STYLE
COPYISTS, THE GUILD HAS UNDERTAKEN TO DO MANY THINGS APPARENTLY
INDEPENDENT OF AND DISTINCT FROM THE FIGHT AGAINST COPYING.  AMONG THEM
ARE THE FOLLOWING:  THE COMBINATION PROHIBITS ITS MEMBERS FROM
PARTICIPATING IN RETAIL ADVERTISING; REGULATES THE DISCOUNT THEY MAY
ALLOW; PROHIBITS THEIR SELLING AT RETAIL; COOPERATES WITH LOCAL GUILDS
IN REGULATING DAYS UPON WHICH SPECIAL SALES SHALL BE HELD; PROHIBITS
ITS MEMBERS FROM SELLING WOMEN'S GARMENTS TO PERSONS WHO CONDUCT
BUSINESSES IN RESIDENCES, RESIDENTIAL QUARTERS, HOTELS OR APARTMENT
HOUSES; AND DENIES THE BENEFITS OF MEMBERSHIP TO RETAILERS WHO
PARTICIPATE WITH DRESS MANUFACTURERS IN PROMOTING FASHION SHOWS UNLESS
THE MERCHANDISE USED IS ACTUALLY PURCHASED AND DELIVERED. 

IF THE PURPOSE AND PRACTICE OF THE COMBINATION OF GARMENT
MANUFACTURERS AND THEIR AFFILIATES RUNS COUNTER TO THE PUBLIC POLICY
DECLARED IN THE SHERMAN AND CLAYTON ACTS, THE FEDERAL TRADE COMMISSION
HAS THE POWER TO SUPPRESS IT AS AN UNFAIR METHOD OF COMPETITION.  FN4
FROM ITS FINDINGS THE COMMISSION CONCLUDED THAT THE PETITIONERS,
"PURSUANT TO UNDERSTANDINGS, ARRANGEMENTS, AGREEMENTS, COMBINATIONS AND
CONSPIRACIES ENTERED INTO JOINTLY AND SEVERALLY" HAD PREVENTED SALES IN
INTERSTATE COMMERCE, HAD "SUBSTANTIALLY LESSENED, HINDERED AND
SUPPRESSED" COMPETITION, AND HAD TENDED "TO CREATE IN THEMSELVES A
MONOPOLY."  AND PARAGRAPH 3 OF THE CLAYTON ACT (15 U.S.C. SEC. 14)
DECLARES "IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE,  ...
TO  ... MAKE A SALE OR CONTRACT FOR SALE OF GOODS,  ...  ON THE
CONDITION, AGREEMENT, OR UNDERSTANDING THAT THE  ...  PURCHASER THEREOF
SHALL NOT USE OR DEAL IN THE GOODS,  ...  OF A COMPETITOR OR
COMPETITORS OF THE  ...  SELLER, WHERE THE EFFECT OF SUCH  ...  SALE,
OR CONTRACT FOR SALE  ... MAY BE TO SUBSTANTIALLY LESSEN COMPETITION OR
TEND TO CREATE A MONOPOLY IN ANY LINE OF COMMERCE."  THE RELEVANCE OF
THIS SECTION OF THE CLAYTON ACT TO PETITIONERS' SCHEME IS SHOWN BY THE
FACT THAT THE SCHEME IS BOTTOMED UPON A SYSTEM OF SALE UNDER WHICH (1)
TEXTILES SHALL BE SOLD TO GARMENT MANUFACTURERS ONLY UPON THE CONDITION
AND UNDERSTANDING THAT THE BUYERS WILL NOT USE OR DEAL IN TEXTILES
WHICH ARE COPIED FROM THE DESIGNS OF TEXTILE MANUFACTURING GUILD
MEMBERS; (2) GARMENT MANUFACTURERS SHALL SELL TO RETAILERS ONLY UPON
THE CONDITION AND UNDERSTANDING THAT THE RETAILERS SHALL NOT USE OR
DEAL IN SUCH COPIED DESIGNS.  AND THE FEDERAL TRADE COMMISSION
CONCLUDED IN THE LANGUAGE OF THE CLAYTON ACT THAT THESE UNDERSTANDINGS
SUBSTANTIALLY LESSENED COMPETITION AND TENDED TO CREATE A MONOPOLY.  WE
HOLD THAT THE COMMISSION, UPON ADEQUATE AND UNCHALLENGED FINDINGS,
CORRECTLY CONCLUDED THAT THIS PRACTICE CONSTITUTED AN UNFAIR METHOD OF
COMPETITION.  FN5 

NOT ONLY DOES THE PLAN IN THE RESPECTS ABOVE DISCUSSED THUS CONFLICT
WITH THE PRINCIPLES OF THE CLAYTON ACT; THE FINDINGS OF THE COMMISSION
BRING PETITIONERS' COMBINATION IN ITS ENTIRETY WELL WITHIN THE
INHIBITION OF THE POLICIES DECLARED BY THE SHERMAN ACT ITSELF.  SECTION
1 OF THAT ACT MAKES ILLEGAL EVERY CONTRACT, COMBINATION OR CONSPIRACY
IN RESTRAINT OF TRADE OR COMMERCE AMONG THE SEVERAL STATES; SEC. 2
MAKES ILLEGAL EVERY COMBINATION OR CONSPIRACY WHICH MONOPOLIZES OR
ATTEMPTS TO MONOPOLIZE ANY PART OF THAT TRADE OR COMMERCE.  UNDER THE
SHERMAN ACT "COMPETITION NOT COMBINATION, SHOULD BE THE LAW OF TRADE." 
NATIONAL COTTON OIL CO. V. TEXAS, 197 U.S. 115, 129.  AND AMONG THE
MANY RESPECTS IN WHICH THE GUILD'S PLAN RUNS CONTRARY TO THE POLICY OF
THE SHERMAN ACT ARE THESE:  IT NARROWS THE OUTLETS TO WHICH GARMENT AND
TEXTILE MANUFACTURERS CAN SELL AND THE SOURCES FROM WHICH RETAILERS CAN
BUY (MONTAGUE & CO. V. LOWRY, 193 U.S. 38, 45; STANDARD SANITARY MFG.
CO. V. UNITED STATES, 226 U.S. 20, 48-49); SUBJECTS ALL RETAILERS AND
MANUFACTURERS WHO DECLINE TO COMPLY WITH THE GUILD'S PROGRAM TO AN
ORGANIZED BOYCOTT (EASTERN STATES RETAIL LUMBER DEALERS' ASSN. V.
UNITED STATES, 234 U.S. 600, 609-611); TAKES AWAY THE FREEDOM OF ACTION
OF MEMBERS BY REQUIRING EACH TO REVEAL TO THE GUILD THE INTIMATE
DETAILS OF THEIR INDIVIDUAL AFFAIRS (UNITED STATES V. AMERICAN LINSEED
OIL CO., 262 U.S. 371, 389); AND HAS BOTH AS ITS NECESSARY TENDENCY AND
AS ITS PURPOSE AND EFFECT THE DIRECT SUPPRESSION OF COMPETITION FROM
THE SALE OF UNREGISTERED TEXTILES AND COPIED DESIGNS (UNITED STATES V.
AMERICAN LINSEED OIL CO., SUPRA, AT 389).  IN ADDITION TO ALL THIS, THE
COMBINATION IS IN REALITY AN EXTRA-GOVERNMENTAL AGENCY, WHICH
PRESCRIBES RULES FOR THE REGULATION AND RESTRAINT OF INTERSTATE
COMMERCE, AND PROVIDES EXTRA-JUDICIAL TRIBUNALS FOR DETERMINATION AND
PUNISHMENT OF VIOLATIONS, AND THUS "TRENCHES UPON THE POWER OF THE
NATIONAL LEGISLATURE AND VIOLATES THE STATUTE."  ADDYSTON PIPE & STEEL
CO. V. UNITED STATES, 175 U.S. 211, 242.    NOR IS IT DETERMINATIVE IN
CONSIDERING THE POLICY OF THE SHERMAN ACT THAT PETITIONERS MAY NOT YET
HAVE ACHIEVED A COMPLETE MONOPOLY.  FOR "IT IS SUFFICIENT IF IT REALLY
TENDS TO THAT END AND TO DEPRIVE THE PUBLIC OF THE ADVANTAGES WHICH
FLOW FROM FREE COMPETITION."  UNITED STATES V. E.C. KNIGHT CO., 156
U.S. 1, 16; ADDYSTON PIPE & STEEL CO. V. UNITED STATES, 175 U.S. 211,
237.  IT WAS, IN FACT, ONE OF THE HOPES OF THOSE WHO SPONSORED THE
FEDERAL TRADE COMMISSION ACT THAT ITS EFFECT MIGHT BE PROPHYLACTIC AND
THAT THROUGH IT ATTEMPTS TO BRING ABOUT COMPLETE MONOPOLIZATION OF AN
INDUSTRY MIGHT BE STOPPED IN THEIR INCIPIENCY.  FN6    PETITIONERS,
HOWEVER, ARGUE THAT THE COMBINATION CANNOT BE CONTRARY TO THE POLICY OF
THE SHERMAN AND CLAYTON ACTS, SINCE THE FEDERAL TRADE COMMISSION DID
NOT FIND THAT THE COMBINATION FIXED OR REGULATED PRICES, PARCELLED OUT
OR LIMITED PRODUCTION, OR BROUGHT ABOUT A DETERIORATION IN QUALITY. 
BUT ACTION FALLING INTO THESE THREE CATEGORIES DOES NOT EXHAUST THE
TYPES OF CONDUCT BANNED BY THE SHERMAN AND CLAYTON ACTS.  AND AS
PREVIOUSLY POINTED OUT, IT WAS THE OBJECT OF THE FEDERAL TRADE
COMMISSION ACT TO REACH NOT MERELY IN THEIR FRUITION BUT ALSO IN THEIR
INCIPIENCY COMBINATIONS WHICH COULD LEAD TO THESE AND OTHER TRADE
RESTRAINTS AND PRACTICES DEEMED UNDESIRABLE.  IN THIS CASE, THE
COMMISSION FOUND THAT THE COMBINATION EXERCISED SUFFICIENT CONTROL AND
POWER IN THE WOMEN'S GARMENTS AND TEXTILE BUSINESSES "TO EXCLUDE FROM
THE INDUSTRY THOSE MANUFACTURERS AND DISTRIBUTORS WHO DO NOT CONFORM TO
THE RULES AND REGULATIONS OF SAID RESPONDENTS, AND THUS TEND TO CREATE
IN THEMSELVES A MONOPOLY IN THE SAID INDUSTRIES."  WHILE A CONSPIRACY
TO FIX PRICES IS ILLEGAL, AN INTENT TO INCREASE PRICES IS NOT AN EVER
PRESENT ESSENTIAL OF CONDUCT AMOUNTING TO A VIOLATION OF THE POLICY OF
THE SHERMAN AND CLAYTON ACTS; A MONOPOLY CONTRARY TO THEIR POLICIES CAN
EXIST EVEN THOUGH A COMBINATION MAY TEMPORARILY OR EVEN PERMANENTLY
REDUCE THE PRICE OF THE ARTICLES MANUFACTURED OR SOLD.  FOR AS THIS
COURT HAS SAID, "TRADE OR COMMERCE UNDER THOSE CIRCUMSTANCES MAY
NEVERTHELESS BE BADLY AND UNFORTUNATELY RESTRAINED BY DRIVING OUT OF
BUSINESS THE SMALL DEALERS AND WORTHY MEN WHOSE LIVES HAVE BEEN SPENT
THEREIN, AND WHO MIGHT BE UNABLE TO READJUST THEMSELVES TO THEIR
ALTERED SURROUNDINGS.  MERE REDUCTION IN THE PRICE OF THE COMMODITY
DEALT IN MIGHT BE DEARLY PAID FOR BY THE RUIN OF SUCH A CLASS, AND THE
ABSORPTION OF CONTROL OVER ONE COMMODITY BY AN ALL-POWERFUL COMBINATION
OF CAPITAL."  FN7 

BUT PETITIONERS FURTHER ARGUE THAT THEIR BOYCOTT AND RESTRAINT OF
INTERSTATE TRADE IS NOT WITHIN THE BAN OF THE POLICIES OF THE SHERMAN
AND CLAYTON ACTS BECAUSE "THE PRACTICES OF FOGA WERE REASONABLE AND
NECESSARY TO PROTECT THE MANUFACTURER, LABORER, RETAILER AND CONSUMER
AGAINST THE DEVASTATING EVILS GROWING FROM THE PIRATING OF ORIGINAL
DESIGNS AND HAD IN FACT BENEFITED ALL FOUR."  THE COMMISSION DECLINED
TO HEAR MUCH OF THE EVIDENCE THAT PETITIONERS DESIRED TO OFFER ON THIS
SUBJECT.  AS WE HAVE POINTED OUT, HOWEVER, THE AIM OF PETITIONERS'
COMBINATION WAS THE INTENTIONAL DESTRUCTION OF ONE TYPE OF MANUFACTURE
AND SALE WHICH COMPETED WITH GUILD MEMBERS.  THE PURPOSE AND OBJECT OF
THIS COMBINATION, ITS POTENTIAL POWER, ITS TENDENCY TO MONOPOLY, THE
COERCION IT COULD AND DID PRACTICE UPON A RIVAL METHOD OF COMPETITION,
ALL BROUGHT IT WITHIN THE POLICY OF THE PROHIBITION DECLARED BY THE
SHERMAN AND CLAYTON ACTS.  FOR THIS REASON, THE PRINCIPLES ANNOUNCED IN
APPALACHIAN COALS, INC. V. UNITED STATES, 288 U.S. 344, AND SUGAR
INSTITUTE V. UNITED STATES, 297 U.S. 553, HAVE NO APPLICATION HERE. 
UNDER THESE CIRCUMSTANCES IT WAS NOT ERROR TO REFUSE TO HEAR THE
EVIDENCE OFFERED, FOR THE REASONABLENESS OF THE METHODS PURSUED BY THE
COMBINATION TO ACCOMPLISH ITS UNLAWFUL OBJECT IS NO MORE MATERIAL THAN
WOULD BE THE REASONABLENESS OF THE PRICES FIXED BY UNLAWFUL
COMBINATION.  CF. THOMSEN V. CAYSER, 243 U.S. 66, 85; UNITED STATES V.
TRENTON POTTERIES CO., 273 U.S. 392, 398; UNITED STATES V. SOCONY
VACUUM OIL CO., 310 U.S. 150, 212-224.  NOR CAN THE UNLAWFUL
COMBINATION BE JUSTIFIED UPON THE ARGUMENT THAT SYSTEMATIC COPYING OF
DRESS DESIGNS IS ITSELF TORTIOUS, OR SHOULD NOW BE DECLARED SO BY US.
IN THE FIRST PLACE, WHETHER OR NOT GIVEN CONDUCT IS TORTIOUS IS A
QUESTION OF STATE LAW, UNDER OUR DECISION IN ERIE R. CO. V. TOMPKINS,
304 U.S. 64.  IN THE SECOND PLACE, EVEN IF COPYING WERE AN ACKNOWLEDGED
TORT UNDER THE LAW OF EVERY STATE, THAT SITUATION WOULD NOT JUSTIFY
PETITIONERS IN COMBINING TOGETHER TO REGULATE AND RESTRAIN INTERSTATE
COMMERCE IN VIOLATION OF FEDERAL LAW.  AND FOR THESE SAME REASONS, THE
PRINCIPLES DECLARED IN INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS,
248 U.S. 215, CANNOT SERVE TO LEGALIZE PETITIONERS' UNLAWFUL
COMBINATION.  THE DECISION BELOW IS ACCORDINGLY AFFIRMED. 

FN1  114 F.2D 80.  BECAUSE OF INCONSISTENCY BETWEEN THE HOLDING BELOW
AND THAT OF THE FIRST CIRCUIT COURT OF APPEALS IN WM. FILENE'S SONS CO.
V. FASHION ORIGINATORS' GUILD OF AMERICA, 90 F.2D 556, WE GRANTED
CERTIORARI.  311 U.S. 641. 

FN2  26 STAT. 209, 15 U.S.C. SEC. 1 ET SEQ.; 38 STAT. 730, 15 U.S.C.
SEC. 12 ET SEQ.; 38 STAT. 717, 15 U.S.C. SEC. 41 ET SEQ. 

FN3  IN ONE INSTANCE A FINE OF $1500 WAS IMPOSED, AND THE GUILD
NOTIFIED ITS MEMBERSHIP THAT A FINE OF $5000 WOULD BE ASSESSED IN CASE
OF FUTURE VIOLATION. 

FN4  FEDERAL TRADE COMM'N V. BEECH-NUT PACKING CO., 257 U.S. 441, 453
455.  SEE 26 STAT. 209, 15 U.S.C. SEC. 1 ET SEQ.; 38 STAT. 730, 15
U.S.C. SEC. 12 ET SEQ.; 38 STAT. 717, 15 U.S.C. SEC. 41 ET SEQ.  BY 38
STAT. 734, 15 U.S.C. SEC. 21, THE FEDERAL TRADE COMMISSION IS EXPRESSLY
GIVEN AUTHORITY TO ENFORCE THE CLAYTON ACT. 

FN5  CF. FEDERAL TRADE COMM'N V. R.F. KEPPEL & BRO., 291 U.S. 304,
314; STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346, 357. 

FN6  FEDERAL TRADE COMM'N V. RALADAM CO., 283 U.S. 643, 647.  AND SEE
REMARKS OF SENATOR CUMMINS, CHAIRMAN OF THE COMMITTEE WHICH REPORTED
THE BILL, 51 CONG. REC. 11455, QUOTED BY BRANDEIS, J., IN FEDERAL TRADE
COMM'N V. GRATZ, 253 U.S. 421, 435. 

FN7  UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290,
323. 
..END :























MILLINERY GUILD V. TRADE COMM'N, 312 U.S. 469 


NO. 251.  ARGUED FEBRUARY 7, 10, 1941.  - DECIDED MARCH 3, 1941.  - 109
F.2D 175, AFFIRMED. 


DECIDED UPON THE AUTHORITY OF FASHION ORIGINATORS' GUILD OF AMERICA,
INC. V. FEDERAL TRADE COMMISSION, ANTE, P. 457.  P. 472. 

MILLINERY CREATOR'S GUILD, INC. (FORMERLY MILLINERY QUALITY GUILD,
INC.), ET AL. V. FEDERAL TRADE COMMISSION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 625, TO REVIEW THE AFFIRMANCE BY THE COURT BELOW
OF A CEASE AND DESIST ORDER OF THE FEDERAL TRADE COMMISSION. 

IT IS NOT THE PLAN OF THE GUILD, BUT "DESIGN PIRACY" ITSELF, WHICH IS
UNFAIR COMPETITION.  INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS,
248 U.S. 215; WM. FILENE'S SONS CO. V. FASHION ORIGINATORS' GUILD, 90
F.2D 556; CALLMAN, STYLE & DESIGN PIRACY JOURNAL OF U.S. PATENT OFFICE
SOC., AUG. 1940, VOL. XXII, PP. 557, 580, 583; XX BOSTON LAW REV. 365,
REPRINTED IN N.Y. LAW JOURNAL OF MAY 4 AND 6, 1940; DUTTON & CO. V.
CUPPLES, 117 APP. DIV. 172; WOLFENSTEIN V. FASHION ORIGINATORS' GUILD,
244 APP. DIV. 656.  SEE ALSO NATIONAL TEL. NEWS V. WESTERN UNION, 119
F. 294; ASSOCIATED PRESS V. KVOS, INC., 80 F.2D 575, 299 U.S. 269;
PITTSBURGH ATHLETIC CO. V. K.Q.V., 24 F.SUPP.  490; FANOTOPIA, LTD. V.
BRADLEY, 171 F. 951; TWENTIETH CENTURY SPORTING CLUB V. TRANSRADIO
PRESS SERVICE, 165 MISC. 71; AND FISHER V. STAR CO., 231 N.Y. 414. 

THE FEDERAL TRADE COMMISSION ACT SIMPLY DECLARES UNLAWFUL, UNFAIR
METHODS OF COMPETITION.  AS THE SOLE PURPOSE OF THE PLAN OF THE GUILD
IS TO COMBAT A PRACTICE WHICH THE COMMISSION ITSELF HAS CONDEMNED AS
UNFAIR AND WHICH WAS ALSO CONDEMNED AS UNFAIR IN SOME SEVENTEEN CODES
UNDER N.R.A., IT IS DIFFICULT TO SEE HOW THE PLAN COULD AMOUNT TO A
VIOLATION OF THE FEDERAL TRADE COMMISSION ACT. 

THE SOLE REASON ASSIGNED BY THE COURT BELOW WAS THAT THE PLAN WAS
SAID TO VIOLATE THE SHERMAN ACT.  VIRTUALLY ANY CONTRACT IS IN SOME
RESPECT A RESTRAINT OF TRADE, BOARD OF TRADE V. U.S., 246 U.S. 231,
238, AND YET NOT ALL AGREEMENTS BETWEEN TWO OR MORE PARTIES ARE WITHIN
THE PROHIBITION OF THE SHERMAN ACT.  SEE APEX CO. V. LEADER, 310 U.S.
469.  A PROPER ANALYSIS OF THE QUESTION IS, THEREFORE, THIS:  DOES THE
PLAN PRESENT ANY OF THE EVILS WHICH THE SHERMAN ACT WAS DESIGNED TO
PREVENT?  THE ANSWER IS CLEARLY, NO. 

THE PLAN DOES NOT CONTEMPLATE PRICE-FIXING.  THE MERE HOPE FOR FAIRER
PRICE LEVELS THROUGH VOLUNTARY REGULATION DOES NOT RENDER THE
REGULATION UNLAWFUL; AND THIS COURT HAS LIKEWISE ENCOURAGED BUSINESS
MEN TO "CLEAN HOUSE" WITHOUT RECOURSE TO THE COURTS.  SUGAR INSTITUTE
V. UNITED STATES, 297 U.S. 553, 597-598; UNITED STATES V. SOCONY VACUUM
OIL CO., 310 U.S. 150, 215; APPALACHIAN COALS V. UNITED STATES, 288
U.S. 344; ANDERSON V. UNITED STATES, 171 U.S. 604; CHICAGO BOARD OF
TRADE V. UNITED STATES, 246 U.S. 231, 238; CEMENT MFRS.  PROTECTIVE
ASSN. V. UNITED STATES, 268 U.S. 588; MAPLE FLOORING ASSN. V. UNITED
STATES, 268 U.S. 563; NATIONAL ASSN. OF WINDOW GLASS MFRS.  V. UNITED
STATES, 263 U.S. 403.  WOLFENSTEIN V. FASHION ORIGINATORS' GUILD, 244
APP. DIV. 656.  NOR IS ANY OTHER FACTOR OF ILLEGAL RESTRAINT PRESENT IN
THIS SITUATION. 

FINALLY, THE PLAN SHOWS NO LIKELIHOOD OF RESULTING IN DETERIORATION
OF QUALITY.  IN FACT, QUITE THE REVERSE MAY BE EXPECTED.  JOHNSTON &
FITCH, N.R.A. WORK MATERIALS DIV. (1936) BULLETIN NO. 52, PP. 199-200,
AND WORTHY, N.R.A. WORK MATERIALS DIV. (1936) BULLETIN NO. 53. 
NYSTROM, FASHION MERCHANDISING, P. 223. 

THE PLAN IS NOT MONOPOLISTIC IN CHARACTER.  THERE IS NO ATTEMPT TO
OBTAIN THE EXCLUSIVE RIGHT OR POWER TO SELL MILLINERY IN ANY MARKET OR
PART OF A MARKET.  THERE IS NO ATTEMPT TO CONCENTRATE THE MILLINERY
INDUSTRY OR ANY PART OF IT IN THE HANDS OF A FEW.  EVERYONE, WHETHER A
MEMBER OF THE GUILD OR NOT, MAY OBTAIN THE PROTECTION IT AFFORDS. 
ANYONE WHO CAN DESIGN A HAT MAY COMPETE FOR THE COMMON PRIZE; AND THEY
DO COMPETE VIGOROUSLY.  ALL THAT THE GUILD ASKS IS THAT THEY COMPETE BY
THEIR OWN SKILL AND ORGANIZATION RATHER THAN BY MERELY APPROPRIATING
THE SKILL AND ORGANIZATION OF OTHERS.  XX BOSTON LAW REV. 365. 

THE RECORD SHOWS NO TENDENCY TO CROWD ANYONE OUT OF THE INDUSTRY. 
OUR CLIENTS MERELY ATTEMPT TO SEE TO IT THAT THEIR OWN DESIGNS, AND
THOSE OF FIRMS REGISTERING WITH THEM, BE NOT FILCHED AND THEREBY RUINED
AND THAT THEIR COMPETITORS ENJOY NO UNFAIR AND UNEARNED ADVANTAGE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS VIRTUALLY THE SAME ISSUES AS FASHION ORIGINATORS'
GUILD OF AMERICA V. FEDERAL TRADE COMM'N, ANTE, P. 457.  HERE, AS IN
THAT CASE, THE CIRCUIT COURT OF APPEALS AFFIRMED A FEDERAL TRADE
COMMISSION DECREE ORDERING THE PETITIONERS TO CEASE AND DESIST FROM
CERTAIN PRACTICES FOUND TO HAVE BEEN DONE IN COMBINATION AND TO
CONSTITUTE "UNFAIR METHODS OF COMPETITION" TENDING TO MONOPOLY.  FN1 

THE MEMBERS OF THE GUILD INVOLVED IN THIS CASE ARE DESIGNERS AND
MANUFACTURERS OF WOMEN'S HATS.  THEIR GUILD OPERATES A PLAN MODELLED
AFTER THAT OF THE FASHION ORIGINATORS' GUILD OF AMERICA, INC. 

IT WAS STIPULATED BY THE PARTIES THAT "THE CAPACITY, TENDENCY,
PURPOSE, AND RESULT OF THE PLAN ...  AND THE ACTS AND PRACTICES
PERFORMED THEREUNDER  ...  HAVE BEEN, AND NOW ARE, TO RESTRAIN COMMERCE
BY ELIMINATING MANUFACTURERS OF STYLISH HATS  ...  AS TO THE OUTLETS OF
THEIR PRODUCTS AND BY LIMITING THE RETAIL DEALERS  ...  AS TO THEIR
SOURCE OF SUPPLY, AND TO DEPRIVE THE PUBLIC OF THE BENEFITS, IF ANY, OF
COMPETITION AS TO PRICE OR OTHERWISE AMONG RETAILERS OF STYLISH HATS IN
THIS RESPECT  ...  "  PURSUANT TO THE EVIDENCE AND TO THE STIPULATION
CONTAINING THIS STATEMENT, THE COMMISSION FOUND THAT THE EFFECT OF THE
PLAN WAS "UNDULY TO HINDER COMPETITION AND TO CREATE MONOPOLY IN THE
SALE OF WOMEN'S HATS IN INTERSTATE COMMERCE." 

THE RESPECTS IN WHICH THE PLAN OF THE MILLINERY CREATOR'S GUILD
DIFFERS FROM THAT OF THE FASHION ORIGINATORS' GUILD ARE NOT MATERIAL,
AND NEED NOT BE SET OUT IN DETAIL.  NOR NEED THE FINDINGS OF THE
COMMISSION BE ENUMERATED HERE.  THE COMMISSION DID FIND THAT THE
MILLINERY CREATOR'S GUILD HAD TENDED TO HINDER COMPETITION AND CREATE
MONOPOLY "BY DEPRIVING THE PUBLIC OF THE BENEFITS OF NORMAL PRICE
COMPETITION AMONG RETAILERS OF STYLISH HATS FOR WOMEN," A FINDING NOT
MADE IN THE OTHER CASE, BUT THE PRESENCE OR ABSENCE OF SUCH A FINDING
IS NOT DETERMINATIVE HERE.  ON THE AUTHORITY OF FASHION ORIGINATORS'
GUILD OF AMERICA V. FEDERAL TRADE COMM'N, THE DECISION BELOW IS
AFFIRMED. 

FN1  109 F.2D 175. 
..END :





















EDWARDS V. UNITED STATES, 312 U.S. 473 


NO. 377.  ARGUED FEBRUARY 12, 1941.  - DECIDED MARCH 3, 1941.  - 113
F.2D 286, REVERSED. 


1.  TO AN INDICTMENT UNDER THE SECURITIES AND MAIL FRAUD ACTS, AND FOR
CONSPIRACY, BASED UPON SALES OF SECURITIES ISSUED BY ORGANIZATIONS
ALLEGED TO HAVE BEEN CREATED BY THE DEFENDANT AS PART OF A FRAUDULENT
SCHEME, A PLEA IN BAR CLAIMING IMMUNITY UNDER THE SECURITIES ACT
SUFFICIENTLY SHOWS THE INCRIMINATING CHARACTER OF THE EVIDENCE PRODUCED
UNDER SUBPOENA OF THE SECURITIES AND EXCHANGE COMMISSION BY ALLEGING
THAT IT CONCERNED THE IDENTITY OF THE ACCUSED AND HIS RELATIONSHIP TO
THE ORGANIZATIONS "WHICH ARE THE SUBJECT MATTER OF THIS PROSECUTION"
AND CONCERNED HIS PERSONAL ENTRIES, BOOKS AND RECORDS "WHICH ARE A PART
OF THE SUBJECT MATTER OF THIS PROSECUTION."  P. 479. 

2.  THE OVERRULING OF A PLEA IN BAR CLAIMING IMMUNITY UNDER THE
SECURITIES ACT BECAUSE OF TESTIMONY GIVEN BEFORE THE SECURITIES AND
EXCHANGE COMMISSION CAN NOT BE JUSTIFIED UPON THE GROUND THAT THE
DEFENDANT FAILED TO PROVE ITS ALLEGATIONS WHERE THE PLEA WAS
ACCOMPANIED BY A MOTION FOR THE PRODUCTION OF THE TRANSCRIPT OF THE
TESTIMONY AND BOTH PLEA AND MOTION SHOWED THAT APPLICATION FOR SUCH
TRANSCRIPT HAD BEEN REFUSED BY THE COMMISSION.  P. 480. 

IT RESTED IN THE DISCRETION OF THE TRIAL COURT IN THIS CASE TO ISSUE
AN ORDER TO SHOW CAUSE WHY THE COMPLETE TRANSCRIPT SHOULD NOT BE
PRODUCED, IF IT DEEMED ALL OF IT NECESSARY, OR ONLY SO MUCH OF IT AS
WOULD FAIRLY MAKE IT APPEAR WHETHER THE TESTIMONY OF THE ACCUSED BEFORE
THE COMMISSION WAS A PROPER FOUNDATION FOR THE AMNESTY CLAIMED. 

3.  ERROR OF A TRIAL COURT IN OVERRULING A PLEA OF IMMUNITY UNDER THE
SECURITIES ACT WITHOUT ORDERING PRODUCTION OF A TRANSCRIPT OF TESTIMONY
DELIVERED BY THE DEFENDANT BEFORE THE SECURITIES AND EXCHANGE
COMMISSION, WAS NOT CURED BY AN OFFER OF THE GOVERNMENT TO PRODUCE THE
TRANSCRIPT AT THE TRIAL, WHICH THE COURT DECLINED, OR BY ITS SUBSEQUENT
PRODUCTION BY THE GOVERNMENT IN THE CIRCUIT COURT OF APPEALS.  P. 481. 

4.  AN APPEAL IN A CRIMINAL CASE IS TO BE HEARD ON THE RECORD
CERTIFIED TO THE CIRCUIT COURT OF APPEALS.  CRIMINAL APPEALS RULES VIII
AND IX.  P. 482. 

5.  AN OBJECTION TO AN INDICTMENT BECAUSE IN ITS ENDORSEMENT AS A
TRUE BILL THE FOREMAN OF THE GRAND JURY DESCRIBED HIMSELF AS "FOREMAN"
INSTEAD OF "FOREMAN OF THE GRAND JURY," HELD FRIVOLOUS.  P. 482. 

6.  A COUNT CHARGING SALE OF UNREGISTERED SECURITIES IN VIOLATION OF
THE SECURITIES ACT NEED NOT ALLEGE THAT THEY WERE NOT OF THE CLASS
EXEMPTED FROM REGISTRATION BY SEC. 3 OF THE ACT AND THE RULES AND
REGULATIONS THEREUNDER.  P. 482. 

7.  THE INDICTMENT IN THIS CASE SUFFICIENTLY SHOWED THE MATERIALITY
OF FACTS WITHHELD FROM PURCHASERS OF THE SECURITIES, IN VIOLATION OF
THE SECURITIES ACT, 15 U.S.C. 77Q (A)(2).  P. 483. 

EDWARDS V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 311 U.S. 632, TO REVIEW A JUDGMENT AFFIRMING A SENTENCE
WHICH WAS ENTERED ON A PLEA OF NOLO CONTENDERE AFTER A DEMURRER AND A
PLEA IN BAR HAD BEEN OVERRULED. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE UPON AFFIRMANCE BY THE CIRCUIT COURT OF APPEALS OF
A SENTENCE IMPOSED AFTER A PLEA OF NOLO CONTENDERE.  FN1  WE GRANTED
CERTIORARI BECAUSE THERE WERE INVOLVED CERTAIN IMPORTANT QUESTIONS OF
CRIMINAL PROCEDURE, ESPECIALLY WITH RESPECT TO A PLEA IN BAR FILED BY
PETITIONER.  THAT PLEA CLAIMED IMMUNITY FROM PROSECUTION BECAUSE OF
PRIOR INCRIMINATING TESTIMONY GIVEN UNDER COMPULSION BY THE PETITIONER
AT AN INVESTIGATION CONDUCTED BY THE SECURITIES AND EXCHANGE
COMMISSION. 

THE INDICTMENT AGAINST PETITIONER, IN ELEVEN COUNTS, AROSE OUT OF AN
ALLEGED FRAUDULENT SCHEME FOR SELLING INTERESTS, CREATED BY HIM AS A
PART OF THE DEVICE, IN VARIOUS OIL AND GAS LEASES IN OKLAHOMA AND
TEXAS.  THE FIRST THREE COUNTS CHARGED VIOLATIONS OF THE FRAUD
PROVISIONS OF THE SECURITIES ACT, 15 U.S.C. SEC. 77Q (A); THE FOURTH
AND FIFTH, VIOLATIONS OF THE REGISTRATION PROVISIONS OF THAT ACT, 15
U.S.C. SEC. 77E; COUNTS SIX TO TEN, VIOLATIONS OF THE MAIL FRAUD
STATUTE, 18 U.S.C. SEC. 338; AND THE ELEVENTH COUNT, A CONSPIRACY TO
COMMIT THE OFFENSES PREVIOUSLY SET FORTH. 

ON DECEMBER 16, 1938, PETITIONER FILED A DEMURRER, ATTACKING THE
LEGAL SUFFICIENCY OF THE INDICTMENT ON A NUMBER OF GROUNDS.  AT THE
SAME TIME HE FILED A "PLEA IN BAR AND APPLICATION FOR PRODUCTION OF
TRANSCRIPT OF EVIDENCE."  THE SUBSTANCE OF THIS PLEA WAS THE FOLLOWING:
THAT ON APRIL 14, 1938, AND TWO SUCCESSIVE DATES, PURSUANT TO
SUBPOENAS DUCES TECUM, PETITIONER HAD APPEARED BEFORE AN OFFICER OF THE
SECURITIES AND EXCHANGE COMMISSION WITH THE BOOKS AND RECORDS CALLED
FOR, AND "AFTER HAVING CLAIMED HIS IMMUNITY AGAINST SELF INCRIMINATION,
AS PROVIDED BY LAW AND THE CONSTITUTION OF THE UNITED STATES, UNDER
COMPULSION, TESTIFIED UNDER OATH, PURSUANT TO VARIOUS QUESTIONS
PROPOUNDED AND ASKED HIM BY SAID OFFICER OF SAID COMMISSION, SAID
TESTIMONY CONCERNING SAID DEFENDANT'S IDENTITY AND RELATIONSHIP TO
VARIOUS TRUSTS AND ORGANIZATIONS WHICH ARE THE SUBJECT MATTER OF THIS
PROSECUTION AND CONCERNING DIVERS AND SUNDRY OTHER MATTERS PERTAINING
TO THE MATTERS WHICH ARE THE SUBJECT OF THIS PROSECUTION, AND
PARTICULARLY TO THE PERSONAL ENTRIES, BOOKS AND RECORDS OF SAID
DEFENDANT, WHICH ARE A PART OF THE SUBJECT MATTER OF THIS
PROSECUTION."  THE PLEADING GOES ON TO STATE, UPON INFORMATION AND
BELIEF, THAT THE EVIDENCE ADDUCED BY THE COMMISSION IN THE COURSE OF
ITS INVESTIGATION WAS TRANSMITTED TO THE ATTORNEY GENERAL FOR CRIMINAL
PROSECUTION; THAT PETITIONER WAS COMPELLED TO GIVE INFORMATION AND
TESTIMONY "WHICH IT IS BELIEVED THE GOVERNMENT WILL USE AGAINST HIM IN
THE PROSECUTION HEREIN"; AND THAT PETITIONER WAS ACCORDINGLY IMMUNE
FROM PROSECUTION UNDER SEC. 22(C) OF THE SECURITIES ACT.  FN2
PETITIONER FURTHER SET FORTH THAT AT THE TIME OF THE COMMISSION
HEARINGS HE HAD DEMANDED A COPY OF THE TRANSCRIPT OF HIS TESTIMONY,
OFFERING TO PAY THE COST THEREOF, BUT THAT THE REQUEST HAD BEEN
REFUSED; THAT ON DECEMBER 1, 1938, HE HAD MADE A SIMILAR REQUEST, WHICH
ALSO HAD BEEN REFUSED, AS EVIDENCED BY AN ATTACHED LETTER FROM THE
ASSISTANT GENERAL COUNSEL OF THE COMMISSION.  FN3 PETITIONER RENEWED
HIS DEMAND AND TENDER OF PAYMENT, ASSERTING THAT IT WAS NECESSARY FOR
HIM TO HAVE THE TRANSCRIPT IN THE PRESENTATION TO THE COURT OF HIS PLEA
IN BAR, AND THAT IT WAS NECESSARY FOR THE COURT TO HAVE IT BEFORE
PASSING ON THE PLEA.  THE PLEADING CONCLUDES BY PRAYING THE COURT TO
ORDER THAT THE TRANSCRIPT BE FURNISHED PETITIONER AND THAT HE BE HEARD
ON THE MERITS OF THIS PLEA IN BAR. 

ON FEBRUARY 28, 1939, THE GOVERNMENT FILED A PLEADING CALLED A
"MOTION TO STRIKE PLEA IN BAR AND OBJECTION TO PRODUCTION OF TRANSCRIPT
OF EVIDENCE."  THIS ATTACKED THE SUFFICIENCY OF THE PLEA IN BAR ON ITS
FACE IN THREE DIFFERENT RESPECTS, AND ALSO ALLEGED IN THE NATURE OF AN
ANSWER THAT PETITIONER "WAS NEVER SWORN AT ANY TIME DURING THE
PROCEEDINGS OR HEARINGS COMPLAINED OF AND AT NO TIME PRODUCED ANY BOOKS
OR RECORDS, AND DID NOT AT ANY TIME TESTIFY UNDER OATH, AND WAS NEVER
COMPELLED TO TESTIFY OR GIVE ANY INFORMATION AGAINST HIMSELF OR ANYONE
ELSE UNDER OATH OR OTHERWISE AND THAT EACH OF SAID HEARINGS COMPLAINED
OF WAS RECESSED SHORTLY AFTER THE DEFENDANT INTERPOSED HIS PLEA OF
IMMUNITY."  IN SUPPORT OF THIS LAST ALLEGATION THE GOVERNMENT ATTACHED
AN AFFIDAVIT OF AN ATTORNEY OF THE SECURITIES AND EXCHANGE COMMISSION
WHO HAD BEEN PRESENT ON ALL THREE OCCASIONS WHEN THE PETITIONER CLAIMED
TO HAVE GIVEN INCRIMINATING TESTIMONY UNDER COMPULSION. 

PETITIONER MOVED TO STRIKE THIS AFFIDAVIT OF THE COMMISSION ATTORNEY
ON THE GROUND THAT IT DEPRIVED HIM OF HIS RIGHT TO CROSS-EXAMINATION
AND THAT IT WAS "WHOLLY INCOMPETENT TO ESTABLISH THE FACTS ATTEMPTING
TO BE ESTABLISHED." 

THE DISTRICT COURT OVERRULED PETITIONER'S DEMURRER TO THE INDICTMENT,
HIS PLEA IN BAR AND APPLICATION FOR THE TRANSCRIPT, AND ALSO HIS MOTION
TO STRIKE THE AFFIDAVIT OF THE COMMISSION ATTORNEY.  AN AFFIDAVIT LATER
FILED BY THE GOVERNMENT IN THE CIRCUIT COURT OF APPEALS SHOWS THAT AT
THIS HEARING ON PETITIONER'S PLEA IN BAR "COUNSEL FOR THE GOVERNMENT OF
THE UNITED STATES STATED TO THE COURT THAT THEY HAD THE TRANSCRIPTS OF
THE RECORD IN THE PROCEEDINGS  ...  AND IF THE GOVERNMENT'S AFFIDAVIT
WAS NOT SUFFICIENT, THE GOVERNMENT WOULD OFFER THEM IN EVIDENCE IF THE
COURT DESIRED TO EXAMINE THEM; THAT UPON BEING SO ADVISED, HIS HONOR,
JUDGE VAUGHT, STATED THAT HE DID NOT CARE TO SEE THE TRANSCRIPTS, THAT
HE DID NOT NEED THEM TO PASS UPON THE SAID PLEA IN BAR, AND THAT HE WAS
GOING TO OVERRULE THE DEFENDANT'S PLEA IN BAR."  THE GOVERNMENT'S
MOTION TO STRIKE THE PLEA IN BAR WAS OVERRULED, ALSO.  SUBSEQUENTLY
PETITIONER WITHDREW HIS ORIGINAL PLEA OF NOT GUILTY,  FN4  AND ENTERED
A PLEA OF NOLO CONTENDERE.  THE DISTRICT COURT SENTENCED HIM TO THREE
YEARS ON EACH COUNT, THE TERMS TO RUN CONCURRENTLY.  ON APPEAL
PETITIONER ASSIGNED AS ERROR THE ACTION OF THE DISTRICT COURT IN
OVERRULING HIS DEMURRER AND PLEA. 

WHEN THE CASE WAS ARGUED BEFORE THE CIRCUIT COURT OF APPEALS THE
GOVERNMENT SUBMITTED, OVER PETITIONER'S OBJECTION, A COPY OF WHAT IT
SAID WAS A TRANSCRIPT OF PETITIONER'S TESTIMONY BEFORE THE SECURITIES
AND EXCHANGE COMMISSION, SUPPORTED BY AN AFFIDAVIT OF THE ASSISTANT
UNITED STATES ATTORNEY IN CHARGE OF THIS PROSECUTION.  THE TRANSCRIPT
WAS OFFERED TO BUTTRESS THE GOVERNMENT'S CONTENTION THAT PETITIONER HAD
IN FACT GIVEN NO TESTIMONY OF AN INCRIMINATING NATURE, BUT THE CIRCUIT
COURT OF APPEALS DID NOT REST ITS AFFIRMANCE EVEN IN PART UPON THE
CONTENTS OF THE TRANSCRIPT. 

THE COURT AFFIRMED BECAUSE THE PLEA IN BAR DID NOT ALLEGE THAT THE
CLAIM OF IMMUNITY WAS MADE IN A "HEARING" OF THE COMMISSION AS
DISTINGUISHED FROM AN "INVESTIGATION" AND BECAUSE NO EVIDENCE WAS
PRODUCED BY PETITIONER IN SUPPORT OF HIS PLEA.  AS TO THE DEMURRER TO
THE INDICTMENT, THE CIRCUIT COURT OF APPEALS FOUND NO ERROR IN OMITTING
FROM THE CONSPIRACY COUNT ALLEGATIONS THAT THE CLASSES OF SECURITIES
INVOLVED IN THE ALLEGED FRAUDS WERE NOT IN THE EXCEPTED CATEGORIES OF
SECURITIES IN SECTION THREE OF THE SECURITIES ACT.  THIS WAS THE SOLE
GROUND OF PETITIONER'S ATTACK ON THE CONSPIRACY COUNT.  IN THE BELIEF
THAT A SENTENCE ON THIS COUNT, TO RUN CONCURRENTLY WITH EQUAL SENTENCES
ON THE OTHER COUNTS, MADE IT UNNECESSARY TO EXAMINE THE OTHER COUNTS,
FN5  THE COURT DID NOT EXAMINE THE SUFFICIENCY OF THE OTHER COUNTS. 

PETITIONER URGES AS GROUNDS FOR OUR REVERSAL OF THE JUDGMENT BELOW
THE ERRORS IN OVERRULING HIS PLEA IN BAR AND DEMURRER, IN AFFIRMING A
SENTENCE OF THREE YEARS ON THE CONSPIRACY COUNT OF THE INDICTMENT
WITHOUT EXAMINATION OF THE OTHER COUNTS, AND IN RECEIVING THE
TRANSSCRIPT OF TESTIMONY BEFORE THE COMMISSION AND ACCOMPANYING
AFFIDAVIT AS EVIDENCE. 

PLEA IN BAR.  THE GOVERNMENT CHALLENGES THE SUFFICIENCY OF THE PLEA
IN BAR TO SHOW PETITIONER'S CLAIM TO THE BENEFIT OF THE AMNESTY OF SEC.
22(C).  IT SUGGESTS THAT THE EXCERPT SET OUT IN THE THIRD PARAGRAPH OF
THIS OPINION SHOWS ONLY THAT TESTIMONY WAS GIVEN CONCERNING
"DEFENDANT'S IDENTITY AND RELATIONSHIP" TO THE ORGANIZATIONS WHOSE
SECURITIES THE INDICTMENT CHARGES DEFENDANT FRAUDULENTLY SOLD; THAT
"OTHER MATTERS" TESTIFIED TO ARE NOT SPECIFIED NOR THE "NATURE" OF THE
TESTIMONY CONCERNING THEM OR HIS PERSONAL RECORDS.  BUT THE ALLEGATIONS
OF THE PLEA ARE NOT TO BE WEIGHED SEPARATELY.  PETITIONER'S IDENTITY
AND HIS RELATIONSHIP TO THE TRUSTS ALLEGED TO HAVE BEEN CREATED BY HIM
AS A PART OF THE FRAUDULENT SCHEME ARE OF PRIMARY IMPORTANCE IN THE
PROOF OF HIS CRIMINALITY.  THIS IS QUITE DIFFERENT FROM THE TESTIMONY
IN HEIKE V. UNITED STATES,  FN6  A PROSECUTION FOR FRAUD ON THE REVENUE
IN WEIGHING IMPORTED SUGAR.  THERE, FORMER TESTIMONY IN A SHERMAN ACT
PROCEEDING RELATED TO OFFICIAL CONNECTION WITH A COMPANY INVOLVED AND
ALSO A TABLE SHOWING THE AMOUNT OF SUGAR HANDLED BY THE COMPANY, AND A
CLAIM FOR AMNESTY WAS DENIED BECAUSE THE EVIDENCE "NEITHER LED NOR
COULD HAVE LED TO A DISCOVERY OF HIS CRIME."  CERTAINLY, HAD PETITIONER
GIVEN EVIDENCE OF HIS CREATION OF THE ORGANIZATIONS WHICH THE
INDICTMENT SAYS WERE PART OF HIS ARTIFICE IT MIGHT EASILY HAVE LED TO
DISCOVERY OF HIS TRICKERY.  IT SEEMS, TOO, THAT AT LEAST SOME OF THE
OTHER MATTERS WERE SPECIFIED, TO WIT:  THE PERSONAL ENTRIES, BOOKS AND
RECORDS OF PETITIONER.  LIKEWISE, THE NATURE OF HIS ALLEGED TESTIMONY
CONCERNING HIS RECORDS IS SUFFICIENTLY RELATED TO THE INDICTMENT BY
SAYING THEY ARE A PART OF THE SUBJECT MATTER OF THIS PROSECUTION.  THE
PLEA IS GOOD ON ITS FACE. 

IT IS NEXT URGED THAT THE PLEA WAS PROPERLY OVERRULED BECAUSE OF
PETITIONER'S FAILURE TO PROVE ITS ALLEGATIONS.  FN7  SUCH RESULT IS
ASSUMED TO FOLLOW ON THE THEORY THAT, AS THE BURDEN WAS ON PETITIONER
TO PROVE HIS PLEA, THE FAILURE OF THE RECORD TO SHOW AN OFFER OF PROOF
JUSTIFIES THE ORDER.  AS APPEARS FROM THE PRECEDING STATEMENT OF THE
CASE, THE TRIAL COURT OVERRULED NOT ONLY THE PLEA IN BAR BUT
PETITIONER'S MOTION FOR PRODUCTION OF THE TRANSCRIPT, WHICH WAS
CERTAINLY THE BEST EVIDENCE OF WHETHER THE TESTIMONY BEFORE THE
COMMISSION WAS SUFFICIENTLY RELATED TO THE PROSECUTION TO SUPPORT
AMNESTY.  IN THE MARTIN CASE, FN8  THIS COURT SAID THE ACTION
DISMISSING A TRAVERSED MOTION FOR FAILURE OF PROOF WOULD HAVE BEEN
REVERSED IF THE OPPORTUNITY TO ESTABLISH THE FACTS BY EVIDENCE HAD BEEN
DENIED THE ACCUSED.  TREATING THE GOVERNMENT'S MOTION TO STRIKE THE
PLEA IN BAR AS A TRAVERSE OF THAT PLEADING WHICH WOULD JUSTIFY THE
ORDER OVERRULING IT IN THE ABSENCE OF A SHOWING IN THE RECORD OF AN
OFFER OF PROOF, THAT RESULT DOES NOT FOLLOW WHERE, AS HERE, THE PLEA IS
ACCOMPANIED BY A MOTION FOR THE PRODUCTION OF THE TRANSCRIPT OF THE
FORMER EVIDENCE.  THE PLEA AND MOTION SHOWED THAT APPLICATION HAD
PREVIOUSLY BEEN MADE TO THE SECURITIES AND EXCHANGE COMMISSION FOR THE
TRANSCRIPT AND HAD BEEN REFUSED. 

WE ASSUME THAT THE PROCEEDING IN WHICH THE FORMER TESTIMONY WAS GIVEN
WAS A PRIVATE AND CONFIDENTIAL INVESTIGATION OF THE COMMISSION RATHER
THAN A HEARING WHICH MIGHT EVENTUATE IN AN ORDER.  FN9  THE
COMMISSION'S REFUSAL TO PRODUCE THE RECORD INDICATES THAT THE REQUEST
HAD BEEN FOR A COMPLETE TRANSCRIPT OF THE HEARING.  IT RESTS IN THE
DISCRETION OF THE TRIAL COURT TO ISSUE AN ORDER TO SHOW CAUSE WHY THE
COMPLETE TRANSCRIPT SHOULD NOT BE PRODUCED, IF IT DEEMS ALL OF IT
NECESSARY, OR ONLY SO MUCH AS MAY FAIRLY MAKE IT APPEAR WHETHER THE
TESTIMONY OF PETITIONER BEFORE THE COMMISSION WAS A PROPER FOUNDATION
FOR THE AMNESTY CLAIMED.  THIS IS NOT AN INSTANCE OF THE INSPECTION OF
NOTES OR MATERIAL GATHERED BY A PROSECUTOR FOR HIS OWN USE.  FN10  WHAT
IS SOUGHT IS THE PRODUCTION AS EVIDENCE IN THE HEARING ON THE PLEA IN
BAR OF THE VERY FOUNDATION OF THE PLEA.  WE FIND NOTHING IN THIS RECORD
TO INDICATE THE DESIRABILITY OF SECRECY SO FAR AS THE TESTIMONY OF
PETITIONER IS CONCERNED.  THE GOVERNMENT INTRODUCED IN THE COURT OF
APPEALS A PURPORTED TRANSCRIPT OF PETITIONER'S FORMER TESTIMONY WITHOUT
ASSERTING ITS CONFIDENTIAL CHARACTER THEN OR IN THE MOTION AND TRAVERSE
BELOW. 

FINALLY THE GOVERNMENT CONTENDS THAT THE REFUSAL TO ORDER THE
PRODUCTION OF THE TESTIMONY WAS NOT PREJUDICIAL.  THIS ARGUMENT
PRESUPPOSES THAT THE OFFER TO PRODUCE IN THE TRIAL COURT AND THE ACTUAL
PRODUCTION IN THE CIRCUIT COURT OF APPEALS WAS ADEQUATE.  OTHERWISE WE
CANNOT KNOW WHAT THE TESTIMONY WAS WHICH IS RELIED UPON FOR THE
AMNESTY.  WE THINK THAT NEITHER OFFER WAS AN ADEQUATE PROFFER.  IN
NEITHER INSTANCE WAS THE PETITIONER GIVEN AN OPPORTUNITY TO CROSS
EXAMINE; NO WITNESS PRODUCED THE TRANSCRIPT; IT WAS NOT CERTIFIED AS A
PART OF THE RECORD FROM THE TRIAL COURT OR AS A PART OF THE RECORDS OF
THE AGENCY.  FN11  THE RECORD CERTIFIED TO THE CIRCUIT COURT OF APPEALS
IS THE RECORD ON WHICH THE APPEAL IS TO BE HEARD.  CRIMINAL APPEALS
RULES VIII AND IX. 

THE REFUSAL TO PERMIT THE ACCUSED TO PROVE HIS DEFENSE MAY PROVE
TRIVIAL WHEN THE FACTS ARE DEVELOPED.  PROCEDURAL ERRORS OFTEN ARE. 
BUT PROCEDURE IS THE SKELETON WHICH FORMS AND SUPPORTS THE WHOLE
STRUCTURE OF A CASE.  THE LACK OF A BONE MARS THE SYMMETRY OF THE
BODY.  THE PARTIES MUST BE GIVEN AN OPPORTUNITY TO PLEAD AND PROVE
THEIR CONTENTIONS OR ELSE THE IMPRESSION OF THE JUDGE ARISING FROM
SOURCES OUTSIDE THE RECORD DOMINATES RESULTS.  THE REQUIREMENT THAT
ALLEGATIONS MUST BE SUPPORTED BY EVIDENCE TESTED BY CROSS-EXAMINATION
PROTECTS AGAINST FALSEHOOD.  THE OPPORTUNITY TO ASSERT RIGHTS THROUGH
PLEADING AND TESTIMONY IS ESSENTIAL TO THEIR SUCCESSFUL PROTECTION. 
INFRINGEMENT OF THAT OPPORTUNITY IS FORBIDDEN.  FN12    OTHER
OBJECTIONS.  AS THE CASE MUST BE REMANDED, PETITIONER'S OBJECTION TO
THE THREE-YEAR SENTENCE ON THE CONSPIRACY COUNT IS SUSTAINED WITHOUT
DISCUSSION.  CRIMINAL CODE, SEC. 37; 18 U.S.C. SEC. 88.  FRIVOLOUS
OBJECTION IS MADE TO THE INDICTMENT BECAUSE IT IS ENDORSED "A TRUE
BILL, ERNEST W. CLARKE, FOREMAN" INSTEAD OF "FOREMAN OF THE GRAND
JURY."  THIS CONTENTION IS REJECTED. 

PETITIONER BRINGS HERE FOR REVIEW HIS DEMURRER TO THE INDICTMENT AND
EACH COUNT THEREOF.  THE CIRCUIT COURT OF APPEALS FOUND THE CONSPIRACY
COUNT SUFFICIENT AGAINST AN ATTACK THAT, IN CHARGING A CONSPIRACY TO
VIOLATE THE SECURITIES ACT OF 1933 BY SELLING UNREGISTERED SECURITIES,
THE COUNT FAILED TO CHARGE THAT THE SECURITIES SO SOLD WERE NOT OF THE
CLASS EXEMPTED FROM REGISTRATION UNDER SECTION THREE OF THE ACT AND THE
RULES AND REGULATIONS THEREUNDER.  WITH THIS RULING WE AGREE.  FN13  AS
THE SENTENCE UNDER COUNT ELEVEN, THE CONSPIRACY COUNT, WAS FOR AS LONG
A TIME AS ANY OF THE OTHER COUNTS UPON WHICH CONCURRENT SENTENCES HAD
BEEN IMPOSED, THE CIRCUIT COURT OF APPEALS DID NOT REVIEW THE ALLEGED
DEFICIENCIES OF THE OTHER COUNTS. 

COUNTS FOUR AND FIVE ARE CHARGED WITH THE SAME FAULT AS ELEVEN.  FOR
A LIKE REASON WE HOLD THEM GOOD.  COUNTS ONE AND TWO DESCRIBE THE
SCHEME TO DEFRAUD AND ALLEGE INSTANCES OF THE USE OF THE MAILS.  THE
BRIEF OF PETITIONER FAILS TO RAISE ANY QUESTION DESERVING CONSIDERATION
AS TO THEIR SUFFICIENCY AND WE SEE NONE.  PETITIONER CHALLENGES COUNT
THREE FOR FAILURE TO STATE THE MATERIALITY OF FACTS WHICH THE COUNT
CHARGES WERE OMITTED, ALTHOUGH THEY WERE REQUIRED TO BE STATED TO AVOID
MISLEADING PURCHASERS.  FN14  BUT THE COUNT, AFTER DESCRIBING VARIOUS
OMITTED FACTS BY PARAGRAPHS, ENDS SUCH PARAGRAPHS WITH THE ALLEGATION
"SUCH FACT BEING WELL KNOWN TO SAID DEFENDANTS AND EACH OF THEM AT ALL
TIMES HEREIN MENTIONED, AND SUCH FACT BEING MATERIAL IN ORDER TO MAKE
THE STATEMENTS MADE BY SAID DEFENDANTS, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING ...  "  THE
FACTS ALLEGED WERE OBVIOUSLY MATERIAL.  COUNTS SIX TO TEN INCLUSIVE ARE
BASED UPON THE MAIL FRAUD STATUTE.  FN15 PETITIONER'S OBJECTION TO
THESE COUNTS IS THAT A LATER ACT, THE SECURITIES ACT OF 1933, MAKES IT
UNLAWFUL TO USE THE MAILS TO DEFRAUD BY THE SALE OF SECURITIES.  HIS
ARGUMENT IS THAT, IN SO FAR AS THE LATER ACT PROHIBITS THE FRAUDULENT
SALE OF SECURITIES BY MAIL, IT REPEALS BY IMPLICATION THE PROVISIONS OF
THE OLD MAIL FRAUD STATUTE IN SO FAR AS THEY COVER SECURITIES.  WE SEE
NO BASIS FOR A CONCLUSION THAT CONGRESS INTENDED TO REPEAL THE EARLIER
STATUTE.  THE TWO CAN EXIST AND BE USEFUL, SIDE BY SIDE.  FN16
REVERSED. 

FN1  113 F.2D 286. 

FN2  15 U.S.C. SEC. 77V (C):  "NO PERSON SHALL BE EXCUSED FROM
ATTENDING AND TESTIFYING OR FROM PRODUCING BOOKS, PAPERS, CONTRACTS,
AGREEMENTS, AND OTHER DOCUMENTS BEFORE THE COMMISSION, OR IN OBEDIENCE
TO THE SUBPENA OF THE COMMISSION OR ANY MEMBER THEREOF OR ANY OFFICER
DESIGNATED BY IT, OR IN ANY CAUSE OR PROCEEDING INSTITUTED BY THE
COMMISSION, ON THE GROUND THAT THE TESTIMONY OR EVIDENCE, DOCUMENTARY
OR OTHERWISE, REQUIRED OF HIM, MAY TEND TO INCRIMINATE HIM OR SUBJECT
HIM TO A PENALTY OR FORFEITURE; BUT NO INDIVIDUAL SHALL BE PROSECUTED
OR SUBJECTED TO ANY PENALTY OR FORFEITURE FOR OR ON ACCOUNT OF ANY
TRANSACTION, MATTER, OR THING CONCERNING WHICH HE IS COMPELLED, AFTER
HAVING CLAIMED HIS PRIVILEGE AGAINST SELF-INCRIMINATION, TO TESTIFY OR
PRODUCE EVIDENCE, DOCUMENTARY OR OTHERWISE, EXCEPT THAT SUCH INDIVIDUAL
SO TESTIFYING SHALL NOT BE EXEMPT FROM PROSECUTION AND PUNISHMENT FOR
PERJURY COMMITTED IN SO TESTIFYING." 

FN3  IN PART, THE LETTER READ: 

"INASMUCH AS THE EVIDENCE ADDUCED BY THE COMMISSION IN THE COURSE OF
ITS INVESTIGATION WAS TRANSMITTED TO THE ATTORNEY GENERAL FOR CRIMINAL
PROSECUTION AND AN INDICTMENT HAS BEEN RETURNED, THIS COMMISSION DOES
NOT FEEL IT PROPER TO MAKE AVAILABLE TO THE DEFENDANT THE TESTIMONY
TAKEN FROM WITNESSES WHICH MAY BE USED BY THE GOVERNMENT IN THE
PROSECUTION OF ITS CASE.  IN VIEW OF THIS, THE COMMISSION MUST
RESPECTFULLY REFUSE TO COMPLY WITH YOUR REQUEST.  THE UNITED STATES
ATTORNEY CONCURS IN THIS VIEW." 

FN4  PETITIONER HAD PLEADED NOT GUILTY ON DECEMBER 17, 1938. 

FN5  CLAASSEN V. UNITED STATES, 142 U.S. 140; GORIN V. UNITED STATES,
312 U.S. 19. 

FN6  227 U.S. 131. 

FN7  CF. NARDONE V. UNITED STATES, 308, U.S. 338, 341; MARTIN V.
TEXAS, 200 U.S. 316, 319; MAMAUX V. UNITED STATES, 264 F. 816, 819. 

FN8  SUPRA, NOTE 7. 

FN9  CF. IN RE SECURITIES & EXCHANGE COMMISSION, 14 F.SUPP.  417,
418; 84 F.2D 316; REVERSED AS MOOT, 299 U.S. 504. 

FN10  PEOPLE EX REL. LEMON V. SUPREME COURT, 245 N.Y. 24; 156 N.E.
84; CF. REX V. HOLLAND, 4 T.R. (DURNFORD & EAST) 691. 

FN11  CF. R.S. SEC. 882, AS AMENDED, 48 STAT. 1109. 

FN12  CF. WALKER V. JOHNSTON, 312 U.S. 275. 

FN13  MCKELVEY V. UNITED STATES, 260 U.S. 353, 357. 

FN14  SEC. 17(A)(2), SECURITIES ACT OF 1933; 15 U.S.C. 77Q (A)(2). 

FN15  CRIMINAL CODE, SEC. 215; 18 U.S.C. SEC. 338. 

FN16  CF. UNITED STATES V. ROLLNICK, 91 F.2D 911, 918; UNITED STATES
V. MONTGOMERY, 21 F.SUPP.  770; UNITED STATES V. ALLUAN, 13 F.SUPP. 
289. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















BREISCH V. CENTRAL R.R. OF N.J., 312 U.S. 484 


NO. 384.  ARGUED JANUARY 17, 1941.  - DECIDED MARCH 3, 1941.  - 112 F.2D
595, REVERSED. 


1.  THE REMEDY OF AN EMPLOYEE OF AN INTERSTATE RAILWAY FOR PERSONAL
INJURIES SUFFERED WHILE HE WAS ENGAGED ABOUT INTRASTATE TRANSPORTATION
AND CAUSED BY A BREACH OF THE FEDERAL SAFETY APPLIANCE ACTS, IS THE
REMEDY AFFORDED BY THE COMMON OR STATUTORY LAW OF THE STATE.  P. 486. 

2.  THE FEDERAL SAFETY APPLIANCE ACTS CREATE THE RIGHT; THE REMEDY IS
WITHIN THE STATE'S DISCRETION.  P. 486. 

3.  A FIXED INTERPRETATION OF A STATE STATUTE BY THE SUPREME COURT OF
THE STATE SHOULD BE ACCEPTED BY THE FEDERAL COURTS WHEN IT DOES NOT
OBVIOUSLY DEPEND ALTOGETHER ON A MISCONCEPTION OF FEDERAL LAW.  P.
488. 

4.  IN CONSTRUING THE STATE WORKMEN'S COMPENSATION ACT AS
INAPPLICABLE TO CAUSES OF ACTION ARISING UNDER THE FEDERAL SAFETY
APPLIANCE ACTS AND IN RULING THAT THE REMEDY IN SUCH CASES IS BY ACTION
AT LAW, THE SUPREME COURT OF PENNSYLVANIA DOES NOT APPEAR TO HAVE BEEN
ACTUATED ENTIRELY BY A MISUNDERSTANDING OF THE FEDERAL ACTS.  P. 489. 

CONFIRMATORY OF THIS CONCLUSION IS THE PENNSYLVANIA STATUTE PROVIDING
"THAT WHEN A COURT OF LAST RESORT HAS CONSTRUED THE LANGUAGE USED IN A
LAW, THE LEGISLATURE IN SUBSEQUENT LAWS ON THE SAME SUBJECT MATTER
INTEND THE SAME CONSTRUCTION TO BE PLACED UPON SUCH LANGUAGE," AND THE
FACT THAT THE STATE COURT'S CONSTRUCTIONS OF THE COMPENSATION ACT AND
OF JURISDICTION OVER CLAIMS ARISING UNDER THE SAFETY APPLIANCE ACTS
REMAIN UNDISTURBED BY THE SUBSEQUENT AMENDMENTS OF THE COMPENSATION
ACT.  P. 491. 

BREISCH V. CENTRAL RAILROAD OF NEW JERSEY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 311 U.S. 634, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
PERSONAL INJURIES RESULTING FROM VIOLATIONS OF THE FEDERAL SAFETY
APPLIANCE ACTS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI BRINGS HERE THE QUESTION AS TO WHETHER THE LAW OF
PENNSYLVANIA LIMITS RECOVERY UNDER THE PROVISIONS OF THE FEDERAL SAFETY
APPLIANCE ACTS TO THE PROCEDURE AND AWARDS OF THAT STATE'S WORKMEN'S
COMPENSATION ACT IN ACCIDENTS WHERE THE RAILWAY EMPLOYEE IS ENGAGED IN
AN INTRASTATE ACTIVITY AT THE TIME OF INJURY. 

THE SUIT WAS BROUGHT AT COMMON LAW IN THE FEDERAL DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA ON THE GROUND OF DIVERSITY OF
CITIZENSHIP.  THE EMPLOYEE, PETITIONER HERE, WAS A CITIZEN OF
PENNSYLVANIA AND THE DEFENDANT WAS A CORPORATION CREATED UNDER THE LAWS
OF NEW JERSEY, HANDLING TRANSPORTATION MOVING BETWEEN STATES.  THE
BASIS OF THE ACTION WAS RESPONDENT'S VIOLATION OF THE SAFETY APPLIANCE
ACTS BY FAILURE TO FURNISH EFFICIENT HAND BRAKES FOR A CAR.  FN1  THIS
FAILURE RESULTED IN AN INJURY TO PETITIONER IN PENNSYLVANIA.  NO
INTERSTATE COMMERCE WAS INVOLVED.  HE RECOVERED IN THE TRIAL COURT BUT
THE JUDGMENT WAS REVERSED BY THE CIRCUIT COURT OF APPEALS ON ITS
DETERMINATION THAT THE REMEDY OF THE PETITIONER LAY SOLELY IN THE
COMPENSATION ACT AND WAS NOT COGNIZABLE AT LAW.  FN2  WE GRANTED
CERTIORARI BECAUSE OF AN ALLEGED CONFLICT ON A QUESTION OF LOCAL LAW
BETWEEN THE JUDGMENT BELOW AND MILLER V. READING COMPANY.  FN3 

NO ISSUES ARISE EXCEPT THE ONE UPON PROCEDURE.  IT IS CLEAR THAT AN
EMPLOYEE INJURED IN INTRASTATE TRANSPORTATION BY DEFECTIVE EQUIPMENT OF
AN INTERSTATE RAILROAD COMES UNDER THE SAFETY APPLIANCE ACTS.  FN4  NOR
IS THERE ANY LONGER A QUESTION AS TO THE POWER OF THE STATE TO PROVIDE
WHATSOEVER REMEDY IT MAY CHOOSE FOR BREACHES OF THE SAFETY APPLIANCE
ACTS.  FN5  THE FEDERAL STATUTES CREATE THE RIGHT; THE REMEDY IS WITHIN
THE STATE'S DISCRETION.  IN THIS CASE WE ARE TO FIND WHAT REMEDY THE
STATE OF PENNSYLVANIA HAS PROVIDED. 

THIS COURT HAD OCCASION TO CONSIDER THE MATTER OF WHAT REMEDIES FOR
BREACH OF THE FEDERAL SAFETY APPLIANCE ACTS HAD BEEN PROVIDED BY A
STATE IN TIPTON V. ATCHISON, T. & S.F. RY. CO. FN6  THE CIRCUMSTANCES
THERE WERE QUITE SIMILAR TO THE PRESENT CASE.  TIPTON WAS AN EMPLOYEE
OF A RAILROAD WHICH WAS A HIGHWAY OF INTERSTATE COMMERCE AND SUFFERED
INJURY THROUGH VIOLATION OF THE SAFETY ACTS WHILE ENGAGED WITHIN
CALIFORNIA IN INTRASTATE TRANSPORTATION.  HE SOUGHT DAMAGES AT COMMON
LAW AND, AFTER REMOVAL TO THE FEDERAL COURT, WAS CAST IN THE LITIGATION
ON THE GROUND THAT HIS ONLY REDRESS LAY THROUGH THE CALIFORNIA
WORKMEN'S COMPENSATION ACT.  IN AFFIRMING THIS CONCLUSION HERE, TWO
CASES OF THE DISTRICT COURTS OF APPEAL OF CALIFORNIA WERE EXAMINED -
BALLARD V. SACRAMENTO NORTHERN RAILWAY CO. FN7  AND WALTON V. SOUTHERN
PACIFIC CO. FN8  PETITION FOR REVIEW OF THE TWO CASES HAD BEEN REFUSED
BY THE SUPREME COURT OF CALIFORNIA.  FN9  THE BALLARD CASE TREATED SEC.
6 OF THE ACT OF APRIL 22, 1908,  FN10  THE JURISDICTIONAL SECTION OF
THE FEDERAL EMPLOYERS LIABILITY ACT, AS APPLICABLE TO THE CAUSE OF
ACTION UNDER CONSIDERATION, ALTHOUGH THAT CAUSE WAS BOTTOMED UPON THE
SAFETY APPLIANCE ACTS.  FROM THAT PREMISE THE CALIFORNIA COURT WENT
AHEAD TO CONCLUDE THAT ITS WORKMEN'S COMPENSATION ACT DID NOT APPLY BY
VIRTUE OF SEC. 69(C) OF THE COMPENSATION ACT.  FN11  THAT SECTION
OMITTED EMPLOYMENTS GOVERNED BY THE ACTS OF CONGRESS.  THE COMPENSATION
ACT IS THE EXCLUSIVE STATE REMEDY FOR INJURIES WITHIN ITS SCOPE.  THE
FEDERAL EMPLOYERS LIABILITY ACT DOES GIVE A RIGHT OF ACTION AND FIX THE
TRIBUNALS WHERE IT MAY BE ENFORCED.  FN12  THUS THROUGH ASSIMILATING
THE RIGHTS AND REMEDIES UNDER THE SAFETY APPLIANCE ACTS TO THOSE UNDER
THE FEDERAL EMPLOYERS LIABILITY ACT, THE CALIFORNIA WORKMEN'S
COMPENSATION ACT WAS FOUND INAPPLICABLE.  WALTON'S WAS A SIMILAR CASE
AND IT TOO, PAGE 305, FOLLOWING BALLARD, PERMITTED THE MAINTENANCE OF
THE SUIT IN THE STATE COURT. 

THIS COURT WAS OF THE VIEW THAT THE CALIFORNIA COURTS EXCLUDED THESE
RAILROAD EMPLOYEES FROM THE BENEFITS OF THE COMPENSATION ACT "BECAUSE
THEY (THE COURTS) THOUGHT THE SAFETY APPLIANCE ACTS REQUIRED THE STATE
TO AFFORD A REMEDY IN THE NATURE OF AN ACTION FOR DAMAGES" AND FOR THAT
REASON REFUSED TO FOLLOW THEIR INTERPRETATION OF THE COMPENSATION ACT. 
ALTHOUGH THE TIPTON CASE DECIDED THE ONLY AVAILABLE CALIFORNIA REMEDY
WAS THE COMPENSATION SCHEME, IT WAS INDICATED THAT "A DEFINITE AND
AUTHORITATIVE DECISION" TO THE CONTRARY BY THE CALIFORNIA COURTS WOULD,
OF COURSE, BE FOLLOWED.  FN13  TIPTON LOST THROUGH THE DETERMINATION
HERE THAT CALIFORNIA HAD DECLARED BY ITS STATUTE HE MUST SEEK RELIEF
THROUGH COMPENSATION. 

IN THE PRESENT CASE, BREISCH SUED AT COMMON LAW.  THE CIRCUIT COURT
OF APPEALS REVERSED THE JUDGMENT IN HIS FAVOR ON THE GROUND THAT THE
PENNSYLVANIA WORKMEN'S COMPENSATION ACT SUPPLIED THE EXCLUSIVE REMEDY
FOR HIS INJURY.  TO REACH THIS CONCLUSION, THE COURT DETERMINED THAT IN
MILLER V. READING COMPANY  FN14  THE SUPREME COURT OF PENNSYLVANIA
DECIDED THAT "THE COMPENSATION ACT DID NOT APPLY TO MILLER'S CASE, NOT
AS A MATTER OF STATUTORY CONSTRUCTION OF THAT ACT BUT BECAUSE IT
THOUGHT THAT THE PROPER CONSTRUCTION OF THE FEDERAL SAFETY APPLIANCE
ACTS REQUIRED THE RULING THAT MILLER HAD A CAUSE OF ACTION UNDER THE
SAFETY APPLIANCE ACTS, COGNIZABLE IN A COURT OF LAW BUT NOT WITHIN THE
PURVIEW OF THE COMPENSATION LAW."  RELIANCE WAS PLACED UPON THE TIPTON
CASE AND RED CROSS LINE V. ATLANTIC FRUIT CO. FN15  WHICH SUPPORT THE
PRINCIPLE THAT INTERPRETATION OF STATE STATUTES BY STATE COURTS UNDER
COMPULSION OF FEDERAL LAW ERRONEOUSLY UNDERSTOOD DOES NOT BIND FEDERAL
COURTS. 

IT IS NOT APPARENT TO US, HOWEVER, THAT THE MILLER OPINION DEPENDS
UPON THE COMPULSION OF A MISUNDERSTANDING OF THE SAFETY APPLIANCE
ACTS.  IN MCMAHAN V. MONTOUR RAILROAD CO.,  FN16  IT IS TRUE, THE
SUPREME COURT OF PENNSYLVANIA HELD THE COMPENSATION ACT WAS THE
EXCLUSIVE REMEDY FOR INJURIES TO EMPLOYEES OF INTERSTATE RAILROAD
HIGHWAYS, WHEN THE EMPLOYEES AT THE TIME OF THE INJURY WERE ENGAGED IN
AN INTRASTATE MOVEMENT.  BUT THAT CASE WAS PREDICATED UPON AN ERRONEOUS
CONCEPTION OF THE RELATION OF THE EMPLOYEE TO INTERSTATE COMMERCE.  IT
WAS THOUGHT THAT ONLY EMPLOYEES WHO WERE ENGAGED IN THAT COMMERCE AT
THE TIME OF THE ACCIDENT WERE COVERED BY THE SAFETY APPLIANCE ACTS. 
FN17  NOTHING WAS SAID AS TO THE TRIBUNAL WHICH MIGHT AWARD RELIEF IN
EMPLOYMENTS COVERED BY THE SAFETY APPLIANCE ACTS.  THIS COURT'S
CITATIONS ON REVERSAL DEALT ONLY WITH THE SCOPE OF THE FEDERAL ACTS,
NOT WITH REMEDIES UNDER THEM.  FN18  WHEN THE QUESTION NEXT AROSE, IN
THE MILLER CASE, THE PENNSYLVANIA COURT UNDERTOOK AN INTERPRETATION OF
THE SCOPE OF THE COVERAGE OF THE WORKMEN'S COMPENSATION ACT.  THAT ACT
PROVIDES IN SEC. 302: 

"(A)  IN EVERY CONTRACT OF HIRING MADE AFTER DECEMBER THIRTY-FIRST,
ONE THOUSAND NINE HUNDRED AND FIFTEEN, AND IN EVERY CONTRACT OF HIRING
RENEWED OR EXTENDED BY MUTUAL CONSENT, EXPRESSED OR IMPLIED, AFTER SAID
DATE, IT SHALL BE CONCLUSIVELY PRESUMED THAT THE PARTIES HAVE ACCEPTED
THE PROVISIONS OF ARTICLE THREE OF THIS ACT, AND HAVE AGREED TO BE
BOUND THEREBY, UNLESS THERE BE ...  "  (ARTICLE THREE IS THE
COMPENSATION SCHEDULE.)  THERE ARE NO EXCEPTIONS TO THIS EXCEPT THE
CUSTOMARY EXEMPTIONS OF DOMESTIC SERVICE OR AGRICULTURE.  FN19  IN THE
MILLER CASE, COMPENSATION COVERAGE WAS REFUSED EMPLOYEES OF INTERSTATE
ROADS ENGAGED IN INTRASTATE ACTIVITIES IN THESE WORDS: 

"OUR WORKMEN'S COMPENSATION ACT GAVE TO A BOARD EXCLUSIVE
JURISDICTION OF PROCEEDINGS TO ADJUDICATE CLAIMS OF EMPLOYEES, WHICH,
BY CONSENT, EXPRESS OR IMPLIED, IT WAS AGREED SHOULD BE SO DISPOSED OF,
AND, AS TO SUCH CASES, JURISDICTION OF THE COURTS TO TRY AND DETERMINE
IS OUSTED.  BUT AS TO DEMANDS, NOT ARISING FROM THE ORDINARY RELATION
OF EMPLOYER AND EMPLOYEE, SUCH AS THE ENFORCEMENT OF RIGHTS FIXED BY
FEDERAL STATUTE, THEIR POWERS REMAIN AS IF NO SUCH STATE LEGISLATION
WAS IN FORCE."  FN20 

THOUGH THERE UNDOUBTEDLY WERE OTHER STATEMENTS IN THE COURSE OF THE
OPINION WHICH REFLECT A MISCONCEPTION OF THE STATE'S AUTHORITY OVER
PROCEDURE FOR RECOVERY UNDER THE SAFETY APPLIANCE ACTS, WE CONCLUDE
THAT SUCH MISCONCEPTION IS NOT ENOUGH TO CALL FOR A REFUSAL TO FOLLOW
THE SUPREME COURT'S DEFINITE RULING THAT THE STATE COURTS WERE OPEN FOR
REDRESS FOR ACCIDENTS COVERED BY THE SAFETY APPLIANCE ACTS. 

STATE TAX COMMISSION V. VAN COTT,  FN21  RELIED UPON TO SUPPORT THE
CONCLUSION REACHED BELOW, IS NOT CONTROLLING.  IN THAT CASE A DIRECT
REVIEW OF THE QUESTION DECIDED BY THE STATE COURT WAS SOUGHT HERE ON
THE GROUND THAT THE STATE'S CONCLUSION ON A MATTER OF CONSTRUCTION OF A
STATE INCOME TAX STATUTE WAS CONTROLLED BY THE DECISIONS OF THIS COURT
ON THE TAXABILITY BY STATES OF SALARIES OF FEDERAL EMPLOYEES.  IT WAS
NOT CLEAR TO US WHETHER THE STATE DECISION WAS CONTROLLED BY THE STATE
COURT'S VIEW OF OUR DECISIONS OR NOT.  AND, AS OUR DECISIONS AT THE
TIME OF REVIEW HERE PERMITTED A DECISION BY THE STATE COURT ON THE
STATE STATUTE, FREE FROM FEDERAL CONSTRAINT, WE RETURNED THE CASE FOR
STATE ACTION.  IN THE VAN COTT CASE WE WERE REVIEWING AN APPLICATION OF
FEDERAL LAW BY A STATE COURT TO A SOLUTION OF A STATE'S PROBLEMS.  HERE
WE HAVE A FEDERAL COURT'S INTERPRETATION OF A LONG-STANDING STATE
DECISION.  UNCOMPLETED STATE ACTION, PROBABLY INFLUENCED BY DECISIONS
OF THIS COURT SUBSEQUENTLY OVERRULED, CALLS FOR AN OPPORTUNITY FOR THE
STATE TO ADJUDICATE THE QUESTION FOR ITSELF, WHILE A FIXED
INTERPRETATION OF A STATE STATUTE SHOULD BE ACCEPTED BY THE FEDERAL
COURTS WHEN IT DOES NOT OBVIOUSLY DEPEND ALTOGETHER ON A MISCONCEPTION
OF FEDERAL LAW. 

THERE ARE OTHER FACTORS WHICH FORBID THE CONCLUSION BELOW.  A
PENNSYLVANIA STATUTE, DERIVED FROM THE STATE'S COMMON LAW,  FN22
PROVIDES "THAT WHEN A COURT OF LAST RESORT HAS CONSTRUED THE LANGUAGE
USED IN A LAW, THE LEGISLATURE IN SUBSEQUENT LAWS ON THE SAME SUBJECT
MATTER INTEND THE SAME CONSTRUCTION TO BE PLACED UPON SUCH LANGUAGE." 
FN23  SINCE THE MILLER CASE THE COMPENSATION ACT HAS BEEN AMENDED
SEVERAL TIMES,  FN24  BUT THE LEGISLATURE HAS NEVER ATTEMPTED TO
OVERRIDE THE LIMITATIONS READ INTO IT BY THE MILLER OPINION.  THERE
WERE COMPREHENSIVE AMENDMENTS IN THE 1937 REENACTMENT,  FN25  MORE THAN
A YEAR AFTER THIS COURT'S DECISION IN THE TIPTON CASE ESTABLISHED THAT
THE COMPENSATION REMEDY COULD BE MADE EXCLUSIVE, BUT STILL THE
LEGISLATURE TOOK NO ACTION.  UNDER THESE CIRCUMSTANCES WE ARE OF THE
OPINION THAT THE INTERPRETATION OF THE SUPREME COURT OF PENNSYLVANIA OF
ITS OWN WORKMEN'S COMPENSATION ACT AND OF THE JURISDICTION OF ITS
COURTS OVER CLAIMS ARISING UNDER THE SAFETY APPLIANCE ACT IS BINDING
UPON THE FEDERAL COURTS AND SHOULD BE FOLLOWED. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  ACT OF APRIL 14, 1910, SEC. 2, 36 STAT. 298. 

FN2  112 F.2D 595. 

FN3  292 PA. 44; 140 A. 618. 

FN4  TEXAS & PACIFIC RY. CO. V. RIGSBY, 241 U.S. 33; TIPTON V.
ATCHISON RY. CO., 298 U.S. 141. 

FN5  MOORE V. CHESAPEAKE & OHIO RY. CO., 291 U.S. 205; GILVARY V.
CUYAHOGA VALLEY RY. CO., 292 U.S. 57; TIPTON V. ATCHISON RY. CO., SUPRA
NOTE 4. 

FN6  298 U.S. 141. 

FN7  126 CAL. APP. 486; 14 P.2D 1045; 15 P.2D 793. 

FN8  8 CAL. APP.2D 290; 48 P.2D 108. 

FN9  126 CAL. APP. AT 501; 14 P.2D 1045; 15 P.2D 793, AND 8 CAL.
APP.2D AT 305; 48 P.2D 108. 

FN10  35 STAT. 66 AS AMENDED APRIL 5, 1910, 36 STAT. 291, AND MARCH
3, 1911, SEC. 291, 36 STAT. 1167.  THERE HAS BEEN A SUBSEQUENT
AMENDMENT IMMATERIAL HERE, AUG. 11, 1939, SEC. 2, 53 STAT. 1404. 

FN11  SECTION 69 PROVIDED: 

"(C)  EMPLOYERS ENGAGED IN INTERSTATE COMMERCE.  THIS ACT SHALL NOT
BE CONSTRUED TO APPLY TO EMPLOYERS OR EMPLOYMENTS WHICH, ACCORDING TO
LAW, ARE SO ENGAGED IN INTERSTATE COMMERCE AS NOT TO BE SUBJECT TO THE
LEGISLATIVE POWER OF THE STATE, OR TO EMPLOYEES INJURED WHILE THEY ARE
SO ENGAGED, EXCEPT IN SO FAR AS THIS ACT MAY BE PERMITTED TO APPLY
UNDER THE PROVISIONS OF THE CONSTITUTION OF THE UNITED STATES OR THE
ACTS OF CONGRESS." 

FN12  MOORE V. CHESAPEAKE & OHIO RY. CO., 291 U.S. 205, 215, 216, AND
SEC. 1 AND SEC. 6, 45 U.S.C. 51 AND 56. 

FN13  A LATER DECISION OF THE SUPREME COURT OF CALIFORNIA IS IN
ACCORD WITH THIS COURT'S RULING IN THE TIPTON CASE.  SCOTT V.
INDUSTRIAL ACCIDENT COMM'N, 9 CAL.2D 315, 323; 70 P.2D 940. 

FN14 292 PA. 44; 140 A. 618. 

FN15  264 U.S. 109, 120. 

FN16 283 PA. 274; 128 A. 918. 

FN17  TIPTON V. ATCHISON RY. CO., 298 U.S. 141, 148. 

FN18  MCMAHON V. MONTOUR RAILROAD CO., 270 U.S. 628. 

FN19  PA. LAWS 1915, P. 777. 

FN20  292 PA. AT 50; 140 A. 620. 

FN21  306 U.S. 511. 

FN22  BUHL'S ESTATE, 300 PA. 29; 150 A. 86. 

FN23  PA. LAWS 1937, ACT NO. 282, SEC. 52(4). 

FN24  PA. LAWS 1929, ACTS NO. 311, 358, 361, 372; LAWS 1931, ACTS NO.
151, 205; LAWS 1933, ACTS NO. 68, 324, 328; LAWS, SPECIAL SESSION 1933
34, ACTS NO. 55, 56; LAWS 1935, ACT NO. 412; LAWS 1937, ACT NO. 323. 
FN25  PA. LAWS 1937, ACT NO. 323. 

MR. JUSTICE ROBERTS IS OF THE OPINION THAT THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS SHOULD BE AFFIRMED. 
..END :







CONWAY V. O'BRIEN, 312 U.S. 492 


NO. 344.  ARGUED FEBRUARY 4, 5, 1941.  - DECIDED MARCH 3, 1941.  - 111
F.2D 611, REVERSED. 


EVIDENCE HELD SUFFICIENT TO GO TO THE JURY ON THE ISSUE OF GROSS
NEGLIGENCE AS DEFINED BY THE LAW OF VERMONT, IN AN ACTION AGAINST THE
OWNER OF AN AUTOMOBILE FOR PERSONAL INJURIES SUFFERED BY ONE RIDING IN
IT AS HIS GUEST WHO ALLEGED THAT THE ACCIDENT WAS CAUSED BY THE GROSS
NEGLIGENCE OF THE OWNER IN DRIVING THE VEHICLE.  P. 493. 

CONWAY V. O'BRIEN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 634, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
DAMAGES RECOVERED UNDER A VERMONT "GUEST OCCUPANT" LAW.  JURISDICTION
OF THE DISTRICT COURT WAS FOUNDED ON DIVERSITY OF CITIZENSHIP. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A CITIZEN OF NEW HAMPSHIRE, WAS INJURED WHEN THE
RESPONDENT'S CAR, IN WHICH SHE WAS A PASSENGER, COLLIDED WITH ANOTHER
ON A COUNTRY ROAD IN VERMONT.  DIVERSITY OF CITIZENSHIP GAVE
JURISDICTION TO THE DISTRICT COURT AND PETITIONER RECOVERED A VERDICT
UNDER THE VERMONT GUEST OCCUPANT LAW,  FN1  WHICH REQUIRED HER TO PROVE
GROSS NEGLIGENCE ON THE PART OF THE RESPONDENT.  THE CIRCUIT COURT OF
APPEALS, HOWEVER, CONSIDERING THE EVIDENCE OF GROSS NEGLIGENCE
INSUFFICIENT TO GO TO THE JURY, REVERSED AND DISMISSED THE COMPLAINT. 
FN2  WE GRANTED CERTIORARI TO EXAMINE WHETHER THERE HAD BEEN SUFFICIENT
COMPLIANCE WITH RULE 50(B) TO AUTHORIZE DISMISSAL OF THE COMPLAINT,
FN3  BUT OUR VIEW OF THE MERITS MAKES IT UNNECESSARY TO DISCUSS THIS
QUESTION. 

THE RESULT IS DETERMINED BY A CONSIDERATION OF THE FACTS IN THE LIGHT
OF THE VERMONT LAW.  THE ACCIDENT OCCURRED IN BROAD DAYLIGHT IN THE
LATE MORNING OF AN AUGUST DAY.  IF THE FACTS MOST FAVORABLE TO THE
PETITIONER WERE ACCEPTED, THE JURY MIGHT HAVE CONCLUDED PROPERLY THAT
THE DEFENDANT'S CAR APPROACHED FROM THE SOUTH A COVERED BRIDGE ON A
LITTLE-USED COUNTRY ROAD AT A SPEED OF FIFTEEN MILES PER HOUR. 
RESPONDENT WHO WAS THE DRIVER AND OWNER SAT ON THE FRONT SEAT WITH
ANOTHER.  THE PETITIONER AND ANOTHER LADY OCCUPIED THE REAR SEAT.  THE
BRIDGE SPANNED WILLIAMS RIVER WHICH AT THAT POINT RAN EASTWARDLY TO
JOIN THE CONNECTICUT.  AS ANOTHER CAR EMERGED FROM ITS SOUTHERN END THE
COLLISION HAPPENED. 

THE ROAD ALONG WHICH RESPONDENT WAS DRIVING RAN PARALLEL WITH THE
SOUTHERNLY BANK OF THE RIVER FOR A SHORT DISTANCE AND THEN TURNED
"ABRUPTLY," IN A "SHARPER CURVE THAN ANY ON THE ROAD," AT A SIXTY
DEGREE ANGLE DOWN A NINE PER CENT GRADE TOWARDS THE BRIDGE.  BUSHES AND
SMALL TREES CUT OFF THE VIEW OF A CAR "COMING OUT OF THE BRIDGE" UNTIL
THE RESPONDENT'S CAR WAS "PROBABLY 30 FEET" AWAY. 

AS RESPONDENT'S LIGHT CAR CAME INTO THIS CURVE, HE CUT IN TO THE LEFT
WITHOUT SLACKENING SPEED OR BLOWING A HORN AND SUDDENLY FOUND HIMSELF
FACE TO FACE WITH A LARGER CAR COMING OUT OF THE BRIDGE ON ITS RIGHT
HAND SIDE OF THE ROAD AT TWO MILES PER HOUR.  THE COLLISION KNOCKED THE
HEAVIER CAR BACKWARD SEVERAL FEET AND THROUGH A GUARD RAIL ON THE WEST
SIDE OF THE BRIDGE APPROACH.  THE ROAD APPROACHING THE BRIDGE "AT THIS
BLIND CORNER" WAS SANDY, FROM FOURTEEN TO SEVENTEEN FEET WIDE. 
RESPONDENT TESTIFIED HE HAD KNOWN THE SPOT "ALL MY LIFE" AND KNEW CARS
COULD PASS ONLY "AT A SNAIL'S PACE." 

THE "LAW OF THE ROAD" IN VERMONT IS TO ROUND CURVES "AS FAR TO THE
RIGHT  ...  AS REASONABLY PRACTICABLE"  FN4  AND TO "SIGNAL WITH BELL
OR HORN" "IN GOING AROUND A CURVE."  FN5 

UNDER THESE CIRCUMSTANCES WE ARE OF THE OPINION THAT THE VERMONT LAW
REQUIRES THE SUBMISSION OF THE QUESTION OF GROSS NEGLIGENCE TO THE
JURY.  AS A MATTER OF LAW IT SEEMS QUITE PLAIN THAT A JURY MIGHT FIND A
DRIVER OF A CAR FAMILIAR WITH THE LOCALITY GROSSLY NEGLIGENT, WHEN WITH
THREE GUESTS AND WITHOUT A SIGNAL HE ROUNDS A BLIND, SHARP CURVE AT
FIFTEEN MILES PER HOUR ON THE WRONG SIDE INTO A NARROW BRIDGE
ENTRANCE.  THE ACCEPTED VERMONT DEFINITION OF GROSS NEGLIGENCE IS FOUND
IN SHAW V. MOORE:  FN6 

"GROSS NEGLIGENCE IS SUBSTANTIALLY AND APPRECIABLY HIGHER IN
MAGNITUDE AND MORE CULPABLE THAN ORDINARY NEGLIGENCE.  GROSS NEGLIGENCE
IS EQUIVALENT TO THE FAILURE TO EXERCISE EVEN A SLIGHT DEGREE OF CARE. 
IT IS MATERIALLY MORE WANT OF CARE THAN CONSTITUTES SIMPLE
INADVERTENCE.  IT IS AN ACT OR OMISSION RESPECTING LEGAL DUTY OF AN
AGGRAVATED CHARACTER AS DISTINGUISHED FROM A MERE FAILURE TO EXERCISE
ORDINARY CARE.  IT IS VERY GREAT NEGLIGENCE, OR THE ABSENCE OF SLIGHT
DILIGENCE, OR THE WANT OF EVEN SCANT CARE.  IT AMOUNTS TO INDIFFERENCE
TO PRESENT LEGAL DUTY, AND TO UTTER FORGETFULNESS OF LEGAL OBLIGATIONS
SO FAR AS OTHER PERSONS MAY BE AFFECTED.  IT IS A HEEDLESS AND PALPABLE
VIOLATION OF LEGAL DUTY RESPECTING THE RIGHTS OF OTHERS.  THE ELEMENT
OF CULPABILITY WHICH CHARACTERIZES ALL NEGLIGENCE IS, IN GROSS
NEGLIGENCE, MAGNIFIED TO A HIGH DEGREE AS COMPARED WITH THAT PRESENT IN
ORDINARY NEGLIGENCE.  GROSS NEGLIGENCE IS MANIFESTLY A SMALLER AMOUNT
OF WATCHFULNESS AND CIRCUMSPECTION THAN THE CIRCUMSTANCES REQUIRE OF A
PRUDENT MAN.  BUT IT FALLS SHORT OF BEING SUCH RECKLESS DISREGARD OF
PROBABLE CONSEQUENCES AS IS EQUIVALENT TO A WILFUL AND INTENTIONAL
WRONG.  ORDINARY AND GROSS NEGLIGENCE DIFFER IN DEGREE OF INATTENTION,
WHILE BOTH DIFFER IN KIND FROM WILFUL AND INTENTIONAL CONDUCT WHICH IS
OR OUGHT TO BE KNOWN TO HAVE A TENDENCY TO INJURE." 

THIS HAS BEEN REPEATED MANY TIMES IN LATER CASES.  FN7  THE
APPLICATION CREATES THE DIFFICULTIES.  THE LATEST CASES SAY "EACH CASE
MUST BE JUDGED ACCORDING TO ITS OWN FACTS."  FN8 ADMITTEDLY THERE ARE
INSTANCES AMONG THE VERMONT CASES WHICH MIGHT BE LOGICALLY CITED TO
SUPPORT A REFUSAL TO SUBMIT THIS CASE.  FN9  ABOUT AS MANY ARE UPON THE
OTHER SIDE.  FN10  WE THINK THE DISTRICT COURT CORRECTLY APPRAISED THE
LAW AND FACTS. 

WE REVERSE THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS AND AFFIRM
THAT OF THE DISTRICT COURT.  REVERSED. 

FN1  VERMONT PUBLIC LAWS (1933) SEC. 5113. 

FN2  111 F.2D 611. 

FN3  AS IN BERRY V. UNITED STATES, ANTE, P. 450, THE DISTRICT COURT
DENIED RESPONDENT'S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE
CASE.  AFTER VERDICT, HOWEVER, THE RESPONDENT DID NOT MAKE A MOTION FOR
JUDGMENT N.O.V. 

FN4  VERMONT PUBLIC LAWS (1933) SEC. 5110-IX. 

FN5  ID., SEC. 5110-XV. 

FN6  104 VT. 529, 531-532; 162 A. 373. 

FN7  DESSEREAU V. WALKER, 105 VT. 99, 101; 163 A. 632; FRANZONI V.
RAVENNA, 105 VT. 64; 163 A. 564; HUNTER V. PRESTON, 105 VT. 327, 338;
166 A. 17. 

FN8  ELLISON V. COLBY, 110 VT. 431; 8 A.2D 637, 640; KELLEY V.
ANTHONY, 110 VT. 490; 8 A.2D 641, 642. 

FN9  SHAW V. MOORE, 104 VT. 529; 162 A. 373; FRANZONI V. RAVENNA, 105
VT. 64; 163 A. 564; ANDERSON V. OLSON, 106 VT. 70; 184 A. 712; L'ECUYER
V. FARNSWORTH, 106 VT. 180; 170 A. 677; GARVEY V. MICHAUD, 108 VT. 226;
184 A. 712; KELLEY V. ANTHONY, 110 VT. 490; 8 A.2D 641. 

FN10  DESSEREAU V. WALKER, 105 VT. 99; 163 A. 632; FARREN V. MCMAHON,
110 VT. 55; 1 A.2D 726; HUNTER V. PRESTON, 105 VT. 327, 338; 166 A. 17;
HALL V. ROYCE, 109 VT. 99, 106; 192 A. 193; ELLISON V. COLBY, 110 VT.
431; 8 A.2D 637; POWERS V. LACKEY, 109 VT. 505; 1 A.2D 693. 
..END :






















RAILROAD COMM'N V. PULLMAN CO., 312 U.S. 496 


NO. 283.  ARGUED FEBRUARY 4, 1941.  - DECIDED MARCH 3, 1941.  - 33
F.SUPP.  675, REVERSED. 


A RAILROAD COMPANY, SOME OF WHOSE TRAINS IN TEXAS HAD EACH BUT ONE
PULLMAN SLEEPING CAR AND THAT IN CHARGE OF A COLORED PORTER SUBJECT TO
THE CONTROL OF THE TRAIN CONDUCTOR, ASSAILED IN THE FEDERAL COURT, AS
UNAUTHORIZED BY TEXAS STATUTES AND AS VIOLATIVE OF THE FEDERAL
CONSTITUTION, A REGULATION BY A STATE COMMISSION WHICH WOULD REQUIRE
THAT SUCH CARS BE CONTINUOUSLY IN CHARGE OF AN EMPLOYEE "HAVING THE
RANK AND POSITION OF A PULLMAN CONDUCTOR."  PULLMAN PORTERS,
INTERVENING, ALSO ATTACKED THE ORDER, ADOPTING THE RAILROAD'S
OBJECTIONS BUT URGING MAINLY THAT IT DISCRIMINATED AGAINST NEGROES IN
VIOLATION OF THE FOURTEENTH AMENDMENT, PULLMAN PORTERS BEING NEGROES
AND THE CONDUCTORS WHITE.  HELD: 

1.  DECISION OF THE ISSUE OF UNCONSTITUTIONAL DISCRIMINATION SHOULD
BE WITHHELD PENDING PROCEEDINGS TO BE TAKEN IN THE STATE COURTS TO
SECURE A DEFINITIVE CONSTRUCTION OF THE STATE STATUTE.  P. 498. 

2.  THE FEDERAL COURTS, WHEN ASKED FOR THE EXTRAORDINARY REMEDY OF
INJUNCTION, WILL EXERCISE A SOUND DISCRETION IN THE PUBLIC INTEREST TO
AVOID NEEDLESS FRICTION WITH STATE POLICIES THAT MAY RESULT FROM
TENTATIVE CONSTRUCTIONS OF STATE STATUTES AND PREMATURE ADJUDICATION ON
THEIR CONSTITUTIONALITY.  P. 500. 

RAILROAD COMMISSION OF TEXAS ET AL. V. PULLMAN COMPANY ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF TEXAS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH
ENJOINED THE ENFORCEMENT OF AN ORDER OF THE ABOVE-NAMED RAILROAD
COMMISSION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN THOSE SECTIONS OF TEXAS WHERE THE LOCAL PASSENGER TRAFFIC IS
SLIGHT, TRAINS CARRY BUT ONE SLEEPING CAR.  THESE TRAINS, UNLIKE TRAINS
HAVING TWO OR MORE SLEEPERS, ARE WITHOUT A PULLMAN CONDUCTOR; THE
SLEEPER IS IN CHARGE OF A PORTER WHO IS SUBJECT TO THE TRAIN
CONDUCTOR'S CONTROL.  AS IS WELL KNOWN, PORTERS ON PULLMANS ARE COLORED
AND CONDUCTORS ARE WHITE.  ADDRESSING ITSELF TO THIS SITUATION, THE
TEXAS RAILROAD COMMISSION AFTER DUE HEARING ORDERED THAT "NO SLEEPING
CAR SHALL BE OPERATED ON ANY LINE OF RAILROAD IN THE STATE OF TEXAS
...  UNLESS SUCH CARS ARE CONTINUOUSLY IN THE CHARGE OF AN EMPLOYEE
...  HAVING THE RANK AND POSITION OF PULLMAN CONDUCTOR."  THEREUPON,
THE PULLMAN COMPANY AND THE RAILROADS AFFECTED BROUGHT THIS ACTION IN A
FEDERAL DISTRICT COURT TO ENJOIN THE COMMISSION'S ORDER.  PULLMAN
PORTERS WERE PERMITTED TO INTERVENE AS COMPLAINANTS, AND PULLMAN
CONDUCTORS ENTERED THE LITIGATION IN SUPPORT OF THE ORDER.  THREE
JUDGES HAVING BEEN CONVENED, JUDICIAL CODE, SEC. 266, AS AMENDED, 28
U.S.C. SEC. 380, THE COURT ENJOINED ENFORCEMENT OF THE ORDER.  FROM
THIS DECREE, THE CASE CAME HERE DIRECTLY.  JUDICIAL CODE, SEC. 238, AS
AMENDED, 28 U.S.C. SEC. 345. 

THE PULLMAN COMPANY AND THE RAILROADS ASSAILED THE ORDER AS
UNAUTHORIZED BY TEXAS LAW AS WELL AS VIOLATIVE OF THE EQUAL PROTECTION,
THE DUE PROCESS AND THE COMMERCE CLAUSES OF THE CONSTITUTION.  THE
INTERVENING PORTERS ADOPTED THESE OBJECTIONS BUT MAINLY OBJECTED TO THE
ORDER AS A DISCRIMINATION AGAINST NEGROES IN VIOLATION OF THE
FOURTEENTH AMENDMENT. 

THE COMPLAINT OF THE PULLMAN PORTERS UNDOUBTEDLY TENDERED A
SUBSTANTIAL CONSTITUTIONAL ISSUE.  IT IS MORE THAN SUBSTANTIAL.  IT
TOUCHES A SENSITIVE AREA OF SOCIAL POLICY UPON WHICH THE FEDERAL COURTS
OUGHT NOT TO ENTER UNLESS NO ALTERNATIVE TO ITS ADJUDICATION IS OPEN. 
SUCH CONSTITUTIONAL ADJUDICATION PLAINLY CAN BE AVOIDED IF A DEFINITIVE
RULING ON THE STATE ISSUE WOULD TERMINATE THE CONTROVERSY.  IT IS
THEREFORE OUR DUTY TO TURN TO A CONSIDERATION OF QUESTIONS UNDER TEXAS
LAW. 

THE COMMISSION FOUND JUSTIFICATION FOR ITS ORDER IN A TEXAS STATUTE
WHICH WE QUOTE IN THE MARGIN.  FN1  IT IS COMMON GROUND THAT IF THE
ORDER IS WITHIN THE COMMISSION'S AUTHORITY ITS SUBJECT MATTER MUST BE
INCLUDED IN THE COMMISSION'S POWER TO PREVENT "UNJUST DISCRIMINATION
... AND TO PREVENT ANY AND ALL OTHER ABUSES" IN THE CONDUCT OF
RAILROADS.  WHETHER ARRANGEMENTS PERTAINING TO THE STAFFS OF PULLMAN
CARS ARE COVERED BY THE TEXAS CONCEPT OF "DISCRIMINATION" IS FAR FROM
CLEAR.  WHAT PRACTICES OF THE RAILROADS MAY BE DEEMED TO BE "ABUSES"
SUBJECT TO THE COMMISSION'S CORRECTION IS EQUALLY DOUBTFUL.  READING
THE TEXAS STATUTES AND THE TEXAS DECISIONS AS OUTSIDERS WITHOUT SPECIAL
COMPETENCE IN TEXAS LAW, WE WOULD HAVE LITTLE CONFIDENCE IN OUR
INDEPENDENT JUDGMENT REGARDING THE APPLICATION OF THAT LAW TO THE
PRESENT SITUATION.  THE LOWER COURT DID DENY THAT THE TEXAS STATUTES
SUSTAINED THE COMMISSION'S ASSERTION OF POWER.  AND THIS REPRESENTS THE
VIEW OF AN ABLE AND EXPERIENCED CIRCUIT JUDGE OF THE CIRCUIT WHICH
INCLUDES TEXAS AND OF TWO CAPABLE DISTRICT JUDGES TRAINED IN TEXAS
LAW.  HAD WE OR THEY NO CHOICE IN THE MATTER BUT TO DECIDE WHAT IS THE
LAW OF THE STATE, WE SHOULD HESITATE LONG BEFORE REJECTING THEIR
FORECAST OF TEXAS LAW.  BUT NO MATTER HOW SEASONED THE JUDGMENT OF THE
DISTRICT COURT MAY BE, IT CANNOT ESCAPE BEING A FORECAST RATHER THAN A
DETERMINATION.  THE LAST WORD ON THE MEANING OF ARTICLE 6445 OF THE
TEXAS CIVIL STATUTES, AND THEREFORE THE LAST WORD ON THE STATUTORY
AUTHORITY OF THE RAILROAD COMMISSION IN THIS CASE, BELONGS NEITHER TO
US NOR TO THE DISTRICT COURT BUT TO THE SUPREME COURT OF TEXAS.  IN
THIS SITUATION A FEDERAL COURT OF EQUITY IS ASKED TO DECIDE AN ISSUE BY
MAKING A TENTATIVE ANSWER WHICH MAY BE DISPLACED TOMORROW BY A STATE
ADJUDICATION.  GLENN V. FIELD PACKING CO., 290 U.S. 177; LEE V.
BICKELL, 292 U.S. 415.  THE REIGN OF LAW IS HARDLY PROMOTED IF AN
UNNECESSARY RULING OF A FEDERAL COURT IS THUS SUPPLANTED BY A
CONTROLLING DECISION OF A STATE COURT.  THE RESOURCES OF EQUITY ARE
EQUAL TO AN ADJUSTMENT THAT WILL AVOID THE WASTE OF A TENTATIVE
DECISION AS WELL AS THE FRICTION OF A PREMATURE CONSTITUTIONAL
ADJUDICATION. 

AN APPEAL TO THE CHANCELLOR, AS WE HAD OCCASION TO RECALL ONLY THE
OTHER DAY, IS AN APPEAL TO THE "EXERCISE OF THE SOUND DISCRETION, WHICH
GUIDES THE DETERMINATION OF COURTS OF EQUITY."  BEAL V. MISSOURI
PACIFIC R. CO., ANTE, P. 45.  THE HISTORY OF EQUITY JURISDICTION IS THE
HISTORY OF REGARD FOR PUBLIC CONSEQUENCES IN EMPLOYING THE
EXTRAORDINARY REMEDY OF THE INJUNCTION.  THERE HAVE BEEN AS MANY AND AS
VARIEGATED APPLICATIONS OF THIS SUPPLE PRINCIPLE AS THE SITUATIONS THAT
HAVE BROUGHT IT INTO PLAY.  SEE, FOR MODERN INSTANCES, BEASLEY V. TEXAS
& PACIFIC RY. CO., 191 U.S. 492; HARRISONVILLE V. DICKEY CLAY CO., 289
U.S. 334; UNITED STATES V. DERN, 289 U.S. 352.  FEW PUBLIC INTERESTS
HAVE A HIGHER CLAIM UPON THE DISCRETION OF A FEDERAL CHANCELLOR THAN
THE AVOIDANCE OF NEEDLESS FRICTION WITH STATE POLICIES, WHETHER THE
POLICY RELATES TO THE ENFORCEMENT OF THE CRIMINAL LAW, FENNER V.
BOYKIN, 271 U.S. 240; SPIELMAN MOTOR CO. V. DODGE, 295 U.S. 89; OR THE
ADMINISTRATION OF A SPECIALIZED SCHEME FOR LIQUIDATING EMBARRASSED
BUSINESS ENTERPRISES, PENNSYLVANIA V. WILLIAMS, 294 U.S. 176; OR THE
FINAL AUTHORITY OF A STATE COURT TO INTERPRET DOUBTFUL REGULATORY LAWS
OF THE STATE, GILCHRIST V. INTERBOROUGH CO., 279 U.S. 159; CF. HAWKS V.
HAMILL, 288 U.S. 52, 61.  THESE CASES REFLECT A DOCTRINE OF ABSTENTION
APPROPRIATE TO OUR FEDERAL SYSTEM WHEREBY THE FEDERAL COURTS,
"EXERCISING A WISE DISCRETION," RESTRAIN THEIR AUTHORITY BECAUSE OF
"SCRUPULOUS REGARD FOR THE RIGHTFUL INDEPENDENCE OF THE STATE
GOVERNMENTS" AND FOR THE SMOOTH WORKING OF THE FEDERAL JUDICIARY.  SEE
CAVANAUGH V. LOONEY, 248 U.S. 453, 457; DI GIOVANNI V. CAMDEN INS.
ASSN., 296 U.S. 64, 73.  THIS USE OF EQUITABLE POWERS IS A CONTRIBUTION
OF THE COURTS IN FURTHERING THE HARMONIOUS RELATION BETWEEN STATE AND
FEDERAL AUTHORITY WITHOUT THE NEED OF RIGOROUS CONGRESSIONAL
RESTRICTION OF THOSE POWERS.  COMPARE 37 STAT. 1013; JUDICIAL CODE,
SEC. 24(1), AS AMENDED, 28 U.S.C. SEC. 41(1); 47 STAT. 70, 29 U.S.C.
SECS. 101-15. 

REGARD FOR THESE IMPORTANT CONSIDERATIONS OF POLICY IN THE
ADMINISTRATION OF FEDERAL EQUITY JURISDICTION IS DECISIVE HERE.  IF
THERE WAS NO WARRANT IN STATE LAW FOR THE COMMISSION'S ASSUMPTION OF
AUTHORITY THERE IS AN END OF THE LITIGATION; THE CONSTITUTIONAL ISSUE
DOES NOT ARISE.  THE LAW OF TEXAS APPEARS TO FURNISH EASY AND AMPLE
MEANS FOR DETERMINING THE COMMISSION'S AUTHORITY.  ARTICLE 6453 OF THE
TEXAS CIVIL STATUTES GIVES A REVIEW OF SUCH AN ORDER IN THE STATE
COURTS.  OR, IF THERE ARE DIFFICULTIES IN THE WAY OF THIS PROCEDURE OF
WHICH WE HAVE NOT BEEN APPRISED, THE ISSUE OF STATE LAW MAY BE SETTLED
BY APPROPRIATE ACTION ON THE PART OF THE STATE TO ENFORCE OBEDIENCE TO
THE ORDER.  BEAL V. MISSOURI PACIFIC R. CO., SUPRA; ARTICLE 6476, TEXAS
CIVIL STATUTES.  IN THE ABSENCE OF ANY SHOWING THAT THESE OBVIOUS
METHODS FOR SECURING A DEFINITIVE RULING IN THE STATE COURTS CANNOT BE
PURSUED WITH FULL PROTECTION OF THE CONSTITUTIONAL CLAIM, THE DISTRICT
COURT SHOULD EXERCISE ITS WISE DISCRETION BY STAYING ITS HANDS. 
COMPARE THOMPSON V. MAGNOLIA CO., 309 U.S. 478. 

WE THEREFORE REMAND THE CAUSE TO THE DISTRICT COURT, WITH DIRECTIONS
TO RETAIN THE BILL PENDING A DETERMINATION OF PROCEEDINGS, TO BE
BROUGHT WITH REASONABLE PROMPTNESS, IN THE STATE COURT IN CONFORMITY
WITH THIS OPINION.  COMPARE ATLAS INS. CO. V. SOUTHERN, INC., 306 U.S.
563, 573, AND CASES CITED.  REVERSED. 

FN1 VERNON'S ANNO.  TEXAS CIVIL STATUTES, ARTICLE 6445: 

"POWER AND AUTHORITY ARE HEREBY CONFERRED UPON THE RAILROAD
COMMISSION OF TEXAS OVER ALL RAILROADS, AND SUBURBAN, BELT AND TERMINAL
RAILROADS, AND OVER ALL PUBLIC WHARVES, DOCKS, PIERS, ELEVATORS,
WAREHOUSES, SHEDS, TRACKS AND OTHER PROPERTY USED IN CONNECTION
THEREWITH IN THIS STATE, AND OVER ALL PERSONS, ASSOCIATIONS AND
CORPORATIONS, PRIVATE OR MUNICIPAL, OWNING OR OPERATING SUCH RAILROAD,
WHARF, DOCK, PIER, ELEVATOR, WAREHOUSE, SHED, TRACK OR OTHER PROPERTY
TO FIX, AND IT IS HEREBY MADE THE DUTY OF THE SAID COMMISSION TO ADOPT
ALL NECESSARY RATES, CHARGES AND REGULATIONS, TO GOVERN AND REGULATE
SUCH RAILROADS, PERSONS, ASSOCIATIONS AND CORPORATIONS, AND TO CORRECT
ABUSES AND PREVENT UNJUST DISCRIMINATION IN THE RATES, CHARGES AND
TOLLS OF SUCH RAILROADS, PERSONS, ASSOCIATIONS AND CORPORATIONS, AND TO
FIX DIVISION OF RATES, CHARGES AND REGULATIONS BETWEEN RAILROADS AND
OTHER UTILITIES AND COMMON CARRIERS WHERE A DIVISION IS PROPER AND
CORRECT, AND TO PREVENT ANY AND ALL OTHER ABUSES IN THE CONDUCT OF
THEIR BUSINESS AND TO DO AND PERFORM SUCH OTHER DUTIES AND DETAILS IN
CONNECTION THEREWITH AS MAY BE PROVIDED BY LAW." 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















PIPE LINE CO. V. U.S., 312 U.S. 502 


NO. 268.  ARGUED FEBRUARY 12, 13, 1941.  - DECIDED MARCH 3, 1941.  - NO.
268, REVERSED.  - NO. 269, AFFIRMED. 


1.  IN A SUIT BY THE UNITED STATES TO ENJOIN VIOLATION OF THE SHERMAN
ANTITRUST ACT RESULTING FROM CONTROL OF THE AFFAIRS OF A GAS PIPE LINE
COMPANY BY COMPETITORS THROUGH STOCK OWNERSHIP, ETC., A CONSENT DECREE
WAS ENTERED WHICH SPECIFICALLY CONFERRED CERTAIN RIGHTS ON THE PIPE
LINE COMPANY AND SPECIFICALLY PROVIDED THAT UPON PROPER APPLICATION IT
COULD BECOME A PARTY TO THE SUIT FOR THE PURPOSE OF ENFORCING THOSE
RIGHTS, JURISDICTION OF THE CAUSE AND THE PARTIES BEING RETAINED TO
GIVE FULL EFFECT TO THE DECREE.  HELD: 

(1)  THE RIGHT OF THE PIPE LINE COMPANY TO INTERVENE AT A SUBSEQUENT
STAGE TO ENFORCE THE RIGHTS SO RESERVED, WAS NOT DEPENDENT UPON RULE
24(A) OF THE RULES OF CIVIL PROCEDURE, NOR SUBJECT TO THE DISTRICT
COURT'S DISCRETION, BUT WAS A RIGHT ESTABLISHED BY THE CONSENT DECREE. 
P. 505. 

(2)  ORDERS DENYING MOTIONS TO INTERVENE MADE ON ITS BEHALF WERE
FINAL ORDERS APPEALABLE TO THIS COURT.  P. 508. 

(3)  ENFORCEMENT OF SUCH RIGHTS OF THE PIPE LINE COMPANY THROUGH ITS
INTERVENTION AND ACTIVE PARTICIPATION IN THE LITIGATION WOULD NOT
CONFLICT WITH THE PUBLIC DUTIES OF THE ATTORNEY GENERAL.  P. 508. 

(4)  THE COMPANY'S RIGHT OF INTERVENTION WAS NOT BARRED BY THE DENIAL
OF MOTIONS TO INTERVENE MADE EARLIER BY ONE OF ITS STOCKHOLDERS BUT
MADE ON THAT STOCKHOLDER'S OWN BEHALF AND INVOLVING DIFFERENT CLAIMS
FROM THOSE NOW ASSERTED.  P. 508. 

2.  EXPEDITION IN THE ENFORCEMENT OF THE ANTITRUST LAWS, TO BE
ATTAINED BY MODIFICATION OF AN EXISTING DECREE WITH THE APPROVAL OF THE
GOVERNMENT, CAN NOT BE HAD AT THE SACRIFICE OF PRIVATE RIGHTS WHICH THE
DECREE ITSELF ESTABLISHED.  P. 509. 

MISSOURI-KANSAS PIPE LINE CO. V. UNITED STATES ET AL.* 

*TOGETHER WITH NO. 269, PANHANDLE EASTERN PIPE LINE CO. V. UNITED
STATES ET AL., ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT OF DELAWARE. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF DELAWARE. 

APPEALS FROM TWO ORDERS OF A DISTRICT COURT OF THREE JUDGES DENYING
APPLICATIONS FOR LEAVE TO INTERVENE IN A SUIT INSTITUTED BY THE
GOVERNMENT UNDER THE ANTITRUST ACT.  ONE OF THE APPLICATIONS PURPORTED
TO BE MADE BY THE PANHANDLE EASTERN PIPE LINE COMPANY, THE OTHER WAS
MADE ON ITS BEHALF BY THE MISSOURI-KANSAS PIPE LINE COMPANY AS ONE OF
ITS STOCKHOLDERS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE PROCEEDINGS GROW OUT OF A SUIT IN EQUITY BROUGHT BY THE
ATTORNEY GENERAL IN 1935 TO ENFORCE THE ANTI-TRUST LAWS.  THAT SUIT WAS
TERMINATED BY A CONSENT DECREE THE TERMS OF WHICH SPECIFICALLY RESERVED
CERTAIN RIGHTS TO THE PANHANDLE EASTERN PIPE LINE COMPANY.  THE ISSUES
HERE REVOLVE AROUND THE SCOPE OF THOSE PROVISIONS OF THE DECREE. 

IN ITS BILL THE GOVERNMENT CHARGED THAT COLUMBIA GAS & ELECTRIC
CORPORATION AND ITS CONTROLLED INSTRUMENTALITY, COLUMBIA OIL & GASOLINE
CORPORATION, TOGETHER WITH INDIVIDUAL DEFENDANTS, HAD CONSPIRED, FOR
THE BENEFIT OF COLUMBIA GAS, TO SHUT OUT OPERATION IN THE INDIANA-OHIO
MICHIGAN AREA BY THE PANHANDLE COMPANY, WHICH HAD BUILT A NATURAL GAS
PIPE LINE FROM THE TEXAS FIELDS TO THE BORDER OF INDIANA.  PANHANDLE
WAS AN OFFSPRING OF MISSOURI-KANSAS PIPE LINE COMPANY (HEREAFTER CALLED
MOKAN), WHICH, AT THE INCEPTION OF THE GOVERNMENT'S SUIT, STILL OWNED
HALF OF PANHANDLE'S STOCK AND HELD HALF ITS JUNIOR DEBT.  COLUMBIA GAS,
IT WAS CHARGED, HAD A PRACTICAL MONOPOLY OF NATURAL GAS IN THE MARKET
WHICH PANHANDLE PROPOSED TO ENTER, AND TO MAINTAIN THIS MONOPOLY
COLUMBIA GAS ACQUIRED DOMINATION OF PANHANDLE THROUGH THE ACQUISITION
BY COLUMBIA OIL OF HALF OF PANHANDLE'S STOCK AND JUNIOR DEBT AND ITS
WHOLE SENIOR DEBT.  THESE ACTS STIFLED, SO IT WAS CLAIMED, PANHANDLE'S
POTENTIAL COMPETITION, RENDERED IT INSOLVENT, AND FORCED MOKAN INTO
RECEIVERSHIP. 

THE CONSENT DECREE SOUGHT TO ASSURE OPPORTUNITIES FOR COMPETITION BY
PANHANDLE.  DEEMING THE TERMS OF THE DECREE INADEQUATE FOR ITS PURPOSE,
THE GOVERNMENT IN 1939 REOPENED THE PROCEEDINGS.  THE DEFENDANTS
PROPOSED MODIFICATIONS OF THE DECREE BY A PLAN WHICH THE DISTRICT COURT
REFERRED TO A MASTER.  AFTER THE MASTER'S REPORT APPROVING THE PLAN HAD
BEEN SUBMITTED BUT BEFORE THE DISTRICT COURT HAD ACTED UPON IT, TWO
ATTEMPTS TO INTERVENE WERE MADE ON BEHALF OF PANHANDLE.  THE DENIAL OF
THESE TWO MOTIONS BY THE DISTRICT COURT IS THE BASIS OF THE APPEALS
HERE WHICH COME TO US DIRECTLY UNDER THE EXPEDITING ACT, 32 STAT. 823,
AS AMENDED, 15 U.S.C. SEC. 29.  IN NO. 268 MOKAN, AS A STOCKHOLDER OF
PANHANDLE, MADE THE APPROPRIATE ALLEGATIONS AS TO THE UNWILLINGNESS OF
THOSE RESPONSIBLE FOR THE ACTIONS OF THE CORPORATION TO PROTECT ITS
INTERESTS, AND MOVED TO INTERVENE ON BEHALF OF PANHANDLE.  IN NO. 269,
THE MOTION PURPORTED TO BE MADE IN PANHANDLE'S NAME.  IN ADDITION TO
THE FORMAL PARTIES, THE CITY OF DETROIT WAS HEARD HERE AS AMICUS CURIAE
BECAUSE OF ITS INTEREST IN THE SUPPLY OF GAS BY PANHANDLE. 

FOR CLARITY'S SAKE, WE SHALL FIRST DISPOSE OF NO. 268. 

NUMEROUS ARGUMENTS WERE PRESSED UPON US CHALLENGING OUR JURISDICTION
OVER THE APPEAL, OR, IN THE ALTERNATIVE, INSISTING ON THE PROPRIETY OF
THE ACTION OF THE DISTRICT COURT.  TREATING RULE 24(A) OF THE RULES OF
CIVIL PROCEDURE AS A COMPREHENSIVE INVENTORY OF THE ALLOWABLE INSTANCES
FOR INTERVENTION, IT IS INSISTED THAT THE PRESENT CASE IS NOT ONE FOR
INTERVENTION AS OF RIGHT, AND AS AN EXERCISE OF THE DISTRICT COURT'S
DISCRETION IS NOT REVIEWABLE HERE.  IN ANY EVENT, THE ORDER OF THE
DISTRICT COURT IS SAID NOT TO BE A "FINAL DECREE" WITHIN THE EXPEDITING
ACT, COMPARE UNITED STATES V. CALIFORNIA CANNERIES, 279 U.S. 553, 556,
AND ON THIS SCORE NOT REVIEWABLE.  IF THE MERITS BE HERE OPEN, THE
ORDER WAS CORRECT BECAUSE THERE WAS NOT "TIMELY APPLICATION," AS
REQUIRED BY RULE 24(A).  FINALLY, VARIOUS CONSIDERATIONS OF CONTROLLING
PUBLIC INTEREST ARE INVOKED TO SUSTAIN THE DISTRICT COURT:  THE
ATTORNEY GENERAL IS THE GUARDIAN OF THE PUBLIC INTEREST IN ENFORCING
THE ANTITRUST LAWS, COMPARE NEW YORK CITY V. NEW YORK TELEPHONE CO.,
261 U.S. 312; INJECTION OF NEW ISSUES OUGHT NOT TO BE ALLOWED TO DELAY
DISPOSITION OF THE MAIN LITIGATION, SEE UNITED STATES V. NORTHERN
SECURITIES CO., 128 F. 808, 813; A DECREE ALREADY ENTERED SHOULD NOT BE
IMPEACHED BY INTERVENTION, SEE UNITED STATES V. CALIFORNIA CANNERIES,
SUPRA, AT 556. 

ALL OF THESE ARGUMENTS MISCONCEIVE THE BASIS OF THE RIGHT NOW
ASSERTED.  ITS FOUNDATION IS THE CONSENT DECREE.  WE ARE NOT HERE
DEALING WITH A CONVENTIONAL FORM OF INTERVENTION, WHEREBY AN APPEAL IS
MADE TO THE COURT'S GOOD SENSE TO ALLOW PERSONS HAVING A COMMON
INTEREST WITH THE FORMAL PARTIES TO ENFORCE THE COMMON INTEREST WITH
THEIR INDIVIDUAL EMPHASIS.  PLAINLY ENOUGH, THE CIRCUMSTANCES UNDER
WHICH INTERESTED OUTSIDERS SHOULD BE ALLOWED TO BECOME PARTICIPANTS IN
A LITIGATION IS, BARRING VERY SPECIAL CIRCUMSTANCES, A MATTER FOR THE
NISI PRIUS COURT.  BUT WHERE THE ENFORCEMENT OF A PUBLIC LAW ALSO
DEMANDS DISTINCT SAFEGUARDING OF PRIVATE INTERESTS BY GIVING THEM A
FORMAL STATUS IN THE DECREE, THE POWER TO ENFORCE RIGHTS THUS
SANCTIONED IS NOT LEFT TO THE PUBLIC AUTHORITIES NOR PUT IN THE KEEPING
OF THE DISTRICT COURT'S DISCRETION. 

THAT IS THE PRESENT CASE.  PANHANDLE'S RIGHT TO ECONOMIC INDEPENDENCE
WAS AT THE HEART OF THE CONTROVERSY.  AN IMPORTANT ASPECT OF THAT
INDEPENDENCE WAS THE EXTENSION OF ITS OPERATIONS TO PERMIT SALES IN
DETROIT.  THE ASSURANCE OF THIS EXTENSION WAS DEEMED SO VITAL THAT IT
WAS SAFEGUARDED BY EXPLICIT PROVISIONS IN THE DECREE.  SECTION IV,
WHICH IS IN FULL IN THE MARGIN, FN1  CONTAINED THOSE PROVISIONS, AND BY
APPLICATION," COULD "BECOME A PARTY" TO THE SUIT "FOR THE LIMITED
PURPOSE OF ENFORCING THE RIGHTS CONFERRED BY SECTION IV."  MOKAN, ON
BEHALF OF PANHANDLE, CLAIMED THAT COLUMBIA GAS HAD MADE FINANCIAL
ARRANGEMENTS, WHICH WE NEED NOT DETAIL, THAT WOULD IN PRACTICE DEFEAT
THE FREE ENTERPRISE OF PANHANDLE.  WE ARE NOT CONCERNED WITH THE
SUBSTANTIALITY OF THIS CLAIM.  THE SOLE QUESTION BEFORE US IS WHETHER
THERE WAS STANDING TO MAKE THE CLAIM BEFORE THE DISTRICT COURT.  WE
HOLD THERE WAS SUCH STANDING.  TO ENFORCE THE RIGHTS CONFERRED BY
OF GENERAL DOCTRINES OF INTERVENTION CONTAINED IN RULE 24(A) DOES NOT
TOUCH OUR PROBLEM.  AND SINCE THE PROTECTION AFFORDED PANHANDLE BY
BY SECTION V, TO WIT, ACTIVE PARTICIPATION IN THE SUIT, THE DENIAL OF
THAT PROTECTION IS A DEFINITIVE ADJUDICATION, AND SO APPEALABLE.  SEE
CREDITS COMMUTATION CO. V. UNITED STATES, 177 U.S. 311, 316; CF.
COBBLEDICK V. UNITED STATES, 309 U.S. 323.  NOR CAN THE ENFORCEMENT OF
THIS PROTECTION BE DEEMED REMOTELY IN CONFLICT WITH THE PUBLIC DUTIES
OF THE ATTORNEY GENERAL, NOR TO BRING IN DIGRESSIVE ISSUES, NOR TO
IMPEACH THE EXISTING DECREE.  IT IS A VINDICATION OF THE DECREE. 

A FINAL CONTENTION IN SUPPORT OF THE ORDER REMAINS.  IT IS BASED ON
TWO PRIOR DENIALS OF MOTIONS BY MOKAN TO INTERVENE.  TREATING MOKAN'S
MOTIONS AS MADE ON ITS OWN BEHALF ON THE SCORE OF ITS OWNERSHIP OF MORE
THAN FORTY PERCENT OF PANHANDLE'S STOCK, THE DISTRICT COURT DENIED THE
MOTIONS.  APPEALS FROM THESE DENIALS WERE DISMISSED BY THE CIRCUIT
COURT OF APPEALS, 108 F.2D 614, AND WE DENIED CERTIORARI, 309 U.S.
687.  THE DENIALS ARE NOW URGED AS RES JUDICATA.  BUT THEY WERE A
REJECTION OF MOKAN'S ATTEMPT TO INTERVENE IN ITS OWN BEHALF.  IN
NEITHER INSTANCE WAS THE RELIEF DENIED DEEMED A MODE OF ENFORCING
PANHANDLE'S RIGHTS UNDER SECTIONS IV AND V OF THE DECREE.  THE EARLIER
DENIALS INVOLVED DIFFERENT LEGAL CLAIMS FROM THAT NOW ASSERTED, AND,
THEREFORE, ARE NO BAR TO THE PRESENT PROCEEDING. 

IN NO. 269 PANHANDLE'S INTERVENTION WAS SOUGHT BY A DIFFERENT ROUTE. 
AT A MEETING OF THE STOCKHOLDERS OF PANHANDLE A RESOLUTION WAS
INTRODUCED AUTHORIZING THIS PROCEEDING.  IT WAS DEFEATED BECAUSE
COLUMBIA OIL'S HOLDING OF PANHANDLE STOCK WAS VOTED AGAINST IT.  MOKAN
CLAIMED THAT THIS STOCK WAS DISQUALIFIED FROM BEING VOTED ON A MATTER
SO DEEPLY TOUCHING THE SELF-INTEREST OF THE COLUMBIA COMPANIES.  IF
THIS STOCK BE NOT COUNTED, SO RUNS THE ARGUMENT, MOKAN'S VOTES
CONSTITUTED A MAJORITY AND THE RESOLUTION CARRIED.  BUT WE NEED NOT
PASS ON THESE PROBLEMS OF CORPORATE CONTROL, BECAUSE, UNDER OUR
DECISION IN NO. 268, PANHANDLE'S PARTICIPATION, DERIVATIVELY ASSERTED
BY MOKAN, IS SECURED. 

IN A MEMORANDUM FILED BY THE ATTORNEY GENERAL WE ARE ADVISED THAT ON
JANUARY 18, 1941, THE DISTRICT COURT FILED AN OPINION APPROVING THE
PLAN FOR MODIFYING THE ORIGINAL DECREE SUBJECT TO SOME SUGGESTIONS BY
THE GOVERNMENT.  THIS, WE ARE TOLD, "IS BELIEVED TO SATISFY THE PUBLIC
INTEREST," AND SO THE GOVERNMENT DESIRES TO SUSTAIN THE ACTION OF THE
COURT BELOW WITHOUT FURTHER LITIGATION.  WE RECOGNIZE THE DUTY OF
EXPEDITIOUS ENFORCEMENT OF THE ANTITRUST LAWS.  BUT EXPEDITION CANNOT
BE HAD AT THE SACRIFICE OF RIGHTS WHICH THE ORIGINAL DECREE ITSELF
ESTABLISHED.  WE ASSUME THAT THE DISTRICT COURT WILL ADJUST THE RIGHT
WHICH BELONGS TO PANHANDLE WITH FULL REGARD TO THAT PUBLIC INTEREST
WHICH UNDERLAY THE ORIGINAL SUIT. 

THE ORDER IN NO. 268 IS REVERSED, BUT THAT IN NO. 269 IS AFFIRMED. 
NO. 268, REVERSED.  NO. 269, AFFIRMED. 

FN1  "THAT THE DEFENDANTS BE AND THEY ARE HEREBY PERPETUALLY ENJOINED
FROM RESTRAINING OR INTERFERING IN ANY MANNER IN THE FREEDOM OF
PANHANDLE EASTERN TO CONTRACT OR TO FINANCE OR ARRANGE THE FINANCING OF
ALL CONTRACTS, EXTENSIONS (INCLUDING THE PROPOSED NEW LINE TO DETROIT,
WHETHER OR NOT BUILT AND OWNED BY IT), REPAIRS, MAINTENANCE, SERVICE,
OR IMPROVEMENTS NECESSARY IN ITS BUSINESS THROUGH OR WITH ANY FIRM,
PERSON, OR CORPORATION WITH WHOM IT MAY CHOOSE TO DEAL (AND TO THAT END
ANY SUCH FINANCIAL OR CONTRACTUAL ARRANGEMENTS MADE BY PANHANDLE
EASTERN TO CONSUMMATE ITS CONTRACT DATED AUGUST 31, 1935, WITH THE
DETROIT CITY GAS COMPANY SHALL BE SUBJECT TO THE APPROVAL OF THE
TRUSTEE WHO SHALL RECEIVE, AND CONSIDER THE ADVISABILITY OF,
ALTERNATIVE METHODS OF FINANCING FROM ANY RESPONSIBLE UNDERWRITER); 

"THAT IF SUCH CONTRACTS BE MADE WITH OR FINANCIAL ASSISTANCE BE
SECURED FROM COLUMBIA GAS, SUCH CONTRACTS MAY BE MADE OR FINANCIAL
ASSISTANCE FURNISHED ONLY UPON TERMS OR CONDITIONS WHICH DO NOT IN ANY
WAY, DIRECTLY OR INDIRECTLY, PRESENTLY OR POTENTIALLY, CONFER UPON
COLUMBIA GAS ANY VOTING RIGHTS, CONTROL OR PARTICIPATION IN THE
MANAGEMENT OF PANHANDLE EASTERN OR CONFER ANY RIGHTS OF OWNERSHIP IN
THE WORKS OR PROPERTIES OF PANHANDLE EASTERN EXCEPT AS SECURITY FOR THE
INVESTMENT; AND IN THE EVENT THAT COLUMBIA GAS SHALL, WITH RESPECT TO
ANY CONTRACT OR ANY CONTRACTUAL RIGHTS OF ANY KIND WHATSOEVER OR ANY
PROPERTY HELD AS SECURITY OR USED IN CONNECTION WITH ANY CONTRACT, IN
ANY WAY PREVENT THE FREE TRANSPORTATION, SALE, AND DISTRIBUTION OF GAS
BY PANHANDLE EASTERN, THEN UPON APPLICATION TO THIS COURT OR ANY COURT
OF COMPETENT JURISDICTION PANHANDLE EASTERN SHALL HAVE THE RIGHT (1) TO
THE IMMEDIATE APPOINTMENT OF A TRUSTEE TO HOLD SUCH CONTRACT RIGHTS OR
PROPERTY SUBJECT TO THE PURPOSES AND PROVISIONS OF THIS DECREE; (2) TO
IMMEDIATE SPECIFIC PERFORMANCE OF ANY AND ALL CONTRACTS WITH COLUMBIA
GAS; AND (3) TO IMMEDIATE INJUNCTION, BOTH TEMPORARY AND FINAL, AS WELL
AS ANY OTHER APPROPRIATE REMEDY AT LAW OR IN EQUITY, INCLUDING ANY
REMEDY HEREUNDER." 

FN2  "THAT JURISDICTION OF THIS CAUSE AND OF THE PARTIES HERETO IS
RETAINED FOR THE PURPOSE OF GIVING FULL EFFECT TO THIS DECREE AND FOR
THE ENFORCEMENT OF STRICT COMPLIANCE HEREWITH AND THE PUNISHMENT OF
EVASIONS HEREOF, AND FOR THE FURTHER PURPOSE OF MAKING SUCH OTHER AND
FURTHER ORDERS AND DECREES OR TAKING SUCH OTHER ACTION AS MAY FROM TIME
TO TIME BE NECESSARY TO THE CARRYING OUT HEREOF; AND THAT PANHANDLE
EASTERN, UPON PROPER APPLICATION, MAY BECOME A PARTY HERETO FOR THE
LIMITED PURPOSE OF ENFORCING THE RIGHTS CONFERRED BY SECTION IV
HEREOF." 

MR. JUSTICE ROBERTS IS OF OPINION THAT BOTH JUDGMENTS SHOULD BE
AFFIRMED. 

MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY TOOK NO PART IN THE
CONSIDERATION OR DISPOSITION OF THIS CASE. 
..END :
























CONSOLIDATED ROCK CO. V. DU BOIS, 312 U.S. 510 


NO. 400.  ARGUED FEBRUARY 13, 14, 1941.  - DECIDED MARCH 3, 1941.  - 114
F.2D 102, AFFIRMED. 


IN A PROCEEDING TO REORGANIZE A PARENT CORPORATION AND ITS TWO WHOLLY
OWNED SUBSIDIARIES, A PLAN WAS APPROVED WHICH PROVIDED INTER ALIA:
THAT ALL ASSETS OF THE COMPANIES BE TRANSFERRED FREE AND CLEAR TO A NEW
CORPORATION; THAT IN EXCHANGE FOR THE OUTSTANDING BONDS OF THE
SUBSIDIARIES, WHICH WERE SECURED ON THEIR RESPECTIVE PROPERTIES BY
SEPARATE MORTGAGES, THE BONDHOLDERS RECEIVE, FOR 50% OF THE PRINCIPAL
AMOUNTS OF THEIR CLAIMS, INCOME BONDS OF INFERIOR GRADE SECURED ON THE
PROPERTY OF THE NEW COMPANY, AND FOR THE BALANCE RECEIVE AN EQUAL
AMOUNT OF ITS PAR-VALUE PREFERRED STOCK, WITH WARRANTS TO PURCHASE ITS
COMMON STOCK ON CERTAIN TERMS, BUT THAT THEIR CLAIMS TO ACCRUED
INTEREST BE EXTINGUISHED; THAT THE PREFERRED STOCKHOLDERS OF THE PARENT
CORPORATION RECEIVE COMMON STOCK OF THE NEW CORPORATION, AND THAT ITS
COMMON STOCKHOLDERS RECEIVE WARRANTS TO PURCHASE THE NEW COMMON ON
TERMS STATED.  ALTHOUGH THE MORTGAGE DEBTS OF THE SUBSIDIARIES DIFFERED
IN AMOUNT, THE NET INCOME OF THE NEW COMPANY WAS TO BE APPLIED ONE-HALF
TO THE ONE AND ONE-HALF TO THE OTHER GROUP OF BONDHOLDERS FOR SERVICING
THEIR NEW SECURITIES.  EACH OF THE TWO SUBSIDIARIES HAD A MONEY CLAIM
AGAINST THE PARENT COMPANY, UNDER AN AGREEMENT WHEREBY THE LATTER HAD
TAKEN OVER THE ENTIRE MANAGEMENT AND FINANCING OF THE BUSINESS AND
PROPERTIES OF THE SUBSIDIARIES, AND WHICH STIPULATED, INTER ALIA, THAT
THAT COMPANY WOULD MAKE CERTAIN PAYMENTS AND ALLOW CERTAIN CREDITS TO
THE SUBSIDIARIES, AND, UPON TERMINATION OF THE AGREEMENT, WOULD RETURN
THEIR PROPERTIES AND RENDER FINAL ACCOUNTINGS.  THE AGREEMENT DECLARED
THAT IT WAS MADE FOR THE BENEFIT OF THE PARTIES AND NOT "FOR THE
BENEFIT OF ANY THIRD PERSON," AND CONTAINED A PROVISION FOR EXTENSION
OF ITS DATE OF EXPIRATION AT THE OPTION OF THE PARENT COMPANY.  THE
DISTRICT COURT DID NOT FIND SPECIFIC VALUES FOR THE SEPARATE PROPERTIES
OR THE PROPERTIES OF THE ENTERPRISE AS A UNIT; YET, IN FACE OF A POOR
EARNINGS RECORD, IT FOUND THAT THE PRESENT FAIR VALUE OF ALL THE
ASSETS, EXCLUSIVE OF GOOD WILL AND GOING CONCERN VALUE, WAS IN EXCESS
OF THE TOTAL BONDED INDEBTEDNESS, PLUS ACCRUED AND UNPAID INTEREST.  IT
FURTHER FOUND THAT, INCLUDING GOOD WILL AND GOING CONCERN VALUE, THE
VALUE WAS INSUFFICIENT TO PAY THE BONDED INDEBTEDNESS PLUS ACCRUED AND
UNPAID INTEREST AND CERTAIN LIQUIDATION PREFERENCES AND ACCRUED
DIVIDENDS ON THE PARENT COMPANY'S PREFERRED STOCK; THAT THE PRESENT
VALUE OF THE ASSETS SUBJECT TO THE TRUST INDENTURES OF THE SUBSIDIARIES
WAS INSUFFICIENT TO PAY THE FACE AMOUNT, PLUS ACCRUED AND UNPAID
INTEREST, OF THE RESPECTIVE BOND ISSUES; THAT, AS A RESULT OF
COMMINGLING UNDER THE OPERATING AGREEMENT, IT WOULD BE PHYSICALLY
IMPOSSIBLE TO SEGREGATE WITH ANY DEGREE OF ACCURACY OR FAIRNESS
PROPERTIES WHICH ORIGINALLY BELONGED TO THE COMPANIES SEPARATELY, AND
THAT AN APPRAISAL WOULD PRODUCE FURTHER CONFUSION.  NO FINDING WAS MADE
OF THE AMOUNT OR VALIDITY OF THE INTERCOMPANY CLAIMS, THE COURT
CONCLUDING THAT ANY LIABILITY UNDER THE OPERATING AGREEMENT WAS NOT FOR
THE BENEFIT OF THIRD PARTIES, INCLUDING THE BONDHOLDERS.  HELD: 

1.  TO WARRANT APPROVAL OF ANY PLAN OF REORGANIZATION, THERE SHOULD
HAVE BEEN A DETERMINATION OF WHAT ASSETS WERE SUBJECT TO PAYMENT OF THE
RESPECTIVE CLAIMS.  P. 520. 

2.  THE MORTGAGED ASSETS BEING, AS FOUND BY THE DISTRICT COURT,
INSUFFICIENT TO PAY THE MORTGAGE INDEBTEDNESS, THE BONDHOLDERS, UNDER
THE FULL AND ABSOLUTE PRIORITY RULE, WOULD HAVE, AS AGAINST THE PARENT
CORPORATION AND ITS STOCKHOLDERS, PRIOR RECOURSE AGAINST ANY
UNMORTGAGED ASSETS OF THE SUBSIDIARIES, INCLUDING THE MONEY CLAIMS OF
THE SUBSIDIARIES AGAINST THE PARENT COMPANY.  P. 520. 

3.  ASSUMING THAT, BECAUSE OF THE EXTENSION PROVISION, THE OPERATING
CONTRACT IS STILL EXECUTORY, THE TRUSTEES OF THE SUBSIDIARIES ARE
ENTITLED, UNDER SEC. 77B (B) OF THE BANKRUPTCY ACT, TO PROVE THEIR
CLAIMS AT PRESENT WORTH.  P. 521. 

4.  EQUITY WILL NOT PERMIT A HOLDING COMPANY, WHICH HAS DOMINATED AND
CONTROLLED ITS SUBSIDIARIES, TO ESCAPE OR REDUCE ITS LIABILITY TO THEM
BY RELIANCE UPON SELF-SERVING CONTRACTS WHICH IT HAS IMPOSED ON THEM. 
P. 522. 

5.  A HOLDING COMPANY IN DOMINATING AND CONTROLLING POSITION HAS
FIDUCIARY DUTIES TO SECURITY HOLDERS OF ITS SYSTEM WHICH WILL BE
STRICTLY ENFORCED.  P. 522. 

6.  A HOLDING COMPANY OWING MONEY TO ITS SUBSIDIARIES UNDER AN
AGREEMENT BETWEEN THEM CAN NOT DEFEAT OR POSTPONE AN ACCOUNTING IN THE
INTEREST OF THEIR BONDHOLDERS BY RESORT TO A DECLARATION IN THE
AGREEMENT THAT IT WAS MADE FOR THE BENEFIT OF THE PARTIES TO IT, NOT
"FOR THE BENEFIT OF ANY THIRD PERSON."  P. 522. 

7.  THE BANKRUPTCY COURT, HAVING EXCLUSIVE JURISDICTION OVER THE
HOLDING COMPANY AND THE SUBSIDIARIES, HAS PLENARY POWER TO ADJUDICATE
ALL THE ISSUES PERTAINING TO SUCH INTERCOMPANY CLAIM.  P. 523. 

8.  IN VIEW OF THE UNIFIED OPERATION OF ALL THE PROPERTIES BY THE
PARENT COMPANY, THE COMMINGLING OF ASSETS, AND THE TREATMENT OF THE
SUBSIDIARIES AS MERE DEPARTMENTS OF ITS BUSINESS, THAT COMPANY IS IN NO
POSITION TO ASSERT THAT ITS ASSETS ARE INSULATED FROM THE CLAIMS OF THE
SUBSIDIARIES' BONDHOLDERS.  P. 523. 

9.  THE VALUE OF THE ASSETS OF THE HOLDING COMPANY MUST BE
DETERMINED, TO FURNISH CRITERIA FOR APPROPRIATE ALLOCATION OF THE NEW
SECURITIES BETWEEN BONDHOLDERS AND STOCKHOLDERS IN CASE ANY EQUITY
REMAINS AFTER BONDHOLDERS HAVE BEEN MADE WHOLE.  P. 524. 

10.  TO DETERMINE THE FAIRNESS OF THE PLAN AS BETWEEN THE BONDHOLDERS
OF THE SUBSIDIARIES THERE MUST BE AT LEAST AN APPROXIMATE ASCERTAINMENT
OF THE VALUE OF THEIR RESPECTIVE ASSETS, NOTWITHSTANDING THE
DIFFICULTIES OCCASIONED BY THE LACK OF EARNINGS RECORDS AND BY THE
COMMINGLING OF PROPERTIES.  P. 524. 

11.  FUTURE EARNING CAPACITY OF THE ENTERPRISE IS THE APPROPRIATE
CRITERION FOR THE DETERMINATION OF SOLVENCY IN CONNECTION WITH
REORGANIZATION PLANS INVOLVING PRODUCTIVE PROPERTIES; VALUATIONS FOR
OTHER PURPOSES ARE NOT RELEVANT TO THAT ISSUE, EXCEPT AS THEY MAY
INDIRECTLY BEAR ON EARNING CAPACITY.  P. 525. 

UNLESS METICULOUS REGARD FOR EARNING CAPACITY BE HAD, INDEFENSIBLE
PARTICIPATION OF JUNIOR SECURITIES IN PLANS OF REORGANIZATION MAY
RESULT.  FINDINGS AS TO EARNING CAPACITY ARE ESSENTIAL FOR
DETERMINATION OF THE FEASIBILITY AND FAIRNESS OF A PLAN OF
REORGANIZATION. 

12.  ESTIMATE OF EARNING CAPACITY MUST BE BASED ON AN INFORMED
JUDGMENT WHICH EMBRACES ALL FACTS RELEVANT TO FUTURE EARNING CAPACITY
AND HENCE TO PRESENT WORTH, INCLUDING THE NATURE AND CONDITION OF THE
PROPERTIES, THE PAST EARNING RECORD, AND ALL CIRCUMSTANCES WHICH
INDICATE WHETHER OR NOT THAT RECORD IS A RELIABLE CRITERION OF FUTURE
PERFORMANCE.  P. 526. 

A SUM OF VALUES BASED ON PHYSICAL FACTORS AND ASSIGNED TO SEPARATE
UNITS OF THE PROPERTY WITHOUT REGARD TO THE EARNING CAPACITY OF THE
WHOLE ENTERPRISE IS PLAINLY INADEQUATE. 

13.  WHETHER THERE SHOULD BE A FORMAL APPRAISAL OF PROPERTIES IN THIS
CASE IS LEFT TO THE DISCRETION OF THE DISTRICT COURT.  P. 527. 

14.  THE ABSOLUTE PRIORITY PRINCIPLE APPLIES TO REORGANIZATIONS OF
SOLVENT, AS WELL AS INSOLVENT, CORPORATIONS.  P. 527. 

15.  UNDER THIS PRINCIPLE, INTEREST ACCRUED ON THE BONDS IS ENTITLED
TO THE SAME PRIORITY AS THE PRINCIPAL.  P. 527. 

16.  THE ABSOLUTE PRIORITY PRINCIPLE DOES NOT MEAN THAT CREDITORS CAN
NOT BE GIVEN INFERIOR GRADES OF SECURITIES OR EVEN SECURITIES OF THE
SAME KIND AS ARE RECEIVED BY JUNIOR INTERESTS; BUT, EVEN WHERE THE
ENTERPRISE AS A WHOLE IS SOLVENT IN THE BANKRUPTCY SENSE, THE PRINCIPLE
IS VIOLATED, IN CASES WHERE STOCKHOLDERS ARE PARTICIPATING IN THE PLAN,
IF CREDITORS ARE GIVEN SECURITIES INFERIOR IN GRADE TO THOSE THEY GIVE
UP AND OF THE SAME FACE AMOUNTS, WITH NO ADDITIONAL COMPENSATION FOR
THE SENIOR RIGHTS SURRENDERED.  P. 528. 

17.  WHETHER IN CASE OF A SOLVENT COMPANY THE CREDITORS SHOULD BE
MADE WHOLE FOR THE CHANGE IN OR LOSS OF THEIR SENIORITY BY AN INCREASED
PARTICIPATION IN ASSETS, IN EARNINGS, OR IN CONTROL, OR IN ANY
COMBINATION THEREOF, WILL BE DEPENDENT ON THE FACTS AND REQUIREMENTS OF
EACH CASE.  SO LONG AS THE NEW SECURITIES OFFERED ARE OF A VALUE EQUAL
TO THE CREDITORS' CLAIMS, THE APPROPRIATENESS OF THE FORMULA EMPLOYED
RESTS IN THE INFORMED DISCRETION OF THE COURT.  P. 529. 

18.  THE FACT THAT A PLAN OF REORGANIZATION SUBSTITUTES FOR SEVERAL
OLD BOND ISSUES, SEPARATELY SECURED, NEW SECURITIES CONSTITUTING AN
INTEREST IN ALL OF THE PROPERTIES DOES NOT MAKE IT UNFAIR AND
INEQUITABLE PER SE.  IF THE CREDITORS ARE ADEQUATELY COMPENSATED FOR
THE LOSS OF THEIR PRIOR CLAIMS, IT IS NOT MATERIAL OUT OF WHAT ASSETS
THEY ARE PAID.  P. 530. 

CONSOLIDATED ROCK PRODUCTS CO. ET AL. V. DU BOIS* . 

*TOGETHER WITH NO. 444, BADGLEY ET AL. V. DU BOIS, ALSO ON WRIT OF
CERTIORARI, 311 U.S. 636, TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 311 U.S. 636, TO REVIEW THE REVERSAL OF A JUDGMENT
CONFIRMING A PLAN OF REORGANIZATION UNDER SEC. 77B OF THE BANKRUPTCY
ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES QUESTIONS AS TO THE FAIRNESS UNDER SEC. 77B OF THE
BANKRUPTCY ACT (48 STAT. 912) OF A PLAN OF REORGANIZATION FOR A PARENT
CORPORATION (CONSOLIDATED ROCK PRODUCTS CO.)  AND ITS TWO WHOLLY OWNED
SUBSIDIARIES N1 - UNION ROCK CO. AND CONSUMERS ROCK AND GRAVEL CO.,
INC. THE DISTRICT COURT CONFIRMED THE PLAN; THE CIRCUIT COURT OF
APPEALS REVERSED.  114 F.2D 102.  WE GRANTED THE PETITIONS  FN2  FOR
CERTIORARI BECAUSE OF THE IMPORTANCE IN THE ADMINISTRATION OF THE
REORGANIZATION PROVISIONS OF THE ACT OF CERTAIN PRINCIPLES ENUNCIATED
BY THE CIRCUIT COURT OF APPEALS. 

THE STOCK OF UNION AND CONSUMERS IS HELD BY CONSOLIDATED.  UNION HAS
OUTSTANDING IN THE HANDS OF THE PUBLIC  FN3  $1,877,000 OF 6% BONDS
SECURED BY AN INDENTURE ON ITS PROPERTY, WITH ACCRUED AND UNPAID
INTEREST  FN4  THEREON OF $403,555 - A TOTAL MORTGAGE INDEBTEDNESS OF
$2,280,555.  CONSUMERS HAS OUTSTANDING IN THE HANDS OF THE PUBLIC  FN5
$1,137,000 OF 6% BONDS SECURED BY AN INDENTURE ON ITS PROPERTY, WITH
ACCRUED AND UNPAID INTEREST N6 THEREON OF $221,715 - A TOTAL MORTGAGE
INDEBTEDNESS OF $1,358,715.  CONSOLIDATED HAS OUTSTANDING 285,947
SHARES OF NO PAR VALUE PREFERRED STOCK  FN7  AND 397,455 SHARES OF NO
PAR COMMON STOCK. 

THE PLAN OF REORGANIZATION CALLS FOR THE FORMATION OF A NEW
CORPORATION TO WHICH WILL BE TRANSFERRED ALL OF THE ASSETS OF
CONSOLIDATED, UNION,  FN8  AND CONSUMERS FREE OF ALL CLAIMS.  FN9 THE
SECURITIES OF THE NEW CORPORATION ARE TO BE DISTRIBUTED AS FOLLOWS: 

UNION AND CONSUMERS BONDS HELD BY THE PUBLIC WILL BE EXCHANGED FOR
INCOME BONDS  FN10  AND PREFERRED STOCK  FN11  OF THE NEW COMPANY.  FOR
50 PER CENT OF THE PRINCIPAL AMOUNTS OF THEIR CLAIMS, THOSE BONDHOLDERS
WILL RECEIVE INCOME BONDS SECURED BY A MORTGAGE ON ALL OF THE PROPERTY
OF THE NEW COMPANY; FOR THE BALANCE THEY WILL RECEIVE AN EQUAL AMOUNT
OF PAR VALUE PREFERRED STOCK.  THEIR CLAIMS TO ACCRUED INTEREST ARE TO
BE EXTINGUISHED, NO NEW SECURITIES BEING ISSUED THEREFOR.  THUS UNION
BONDHOLDERS FOR THEIR CLAIMS OF $2,280,555 WILL RECEIVE INCOME BONDS
AND PREFERRED STOCK IN THE FACE AMOUNT OF $1,877,000; CONSUMERS
BONDHOLDERS FOR THEIR CLAIMS OF $1,358,715 WILL RECEIVE INCOME BONDS
AND PREFERRED STOCK  FN12  IN THE FACE AMOUNT OF $1,137,000.  EACH
SHARE OF NEW PREFERRED STOCK WILL HAVE A WARRANT FOR THE PURCHASE OF
TWO SHARES OF NEW $2 PAR VALUE COMMON STOCK AT PRICES RANGING FROM $2
PER SHARE WITHIN SIX MONTHS OF ISSUANCE, TO $6 PER SHARE DURING THE
FIFTH YEAR AFTER ISSUANCE. 

PREFERRED STOCKHOLDERS OF CONSOLIDATED WILL RECEIVE ONE SHARE OF NEW
COMMON STOCK ($2 PAR VALUE) FOR EACH SHARE OF OLD PREFERRED OR AN
AGGREGATE OF 285,947 SHARES OF NEW COMMON. 

A WARRANT TO PURCHASE ONE SHARE OF NEW COMMON FOR $1 WITHIN THREE
MONTHS OF ISSUANCE WILL BE GIVEN TO THE COMMON STOCKHOLDERS OF
CONSOLIDATED FOR EACH FIVE SHARES OF OLD COMMON.  FN13 

THE NEW PREFERRED STOCK, TO BE RECEIVED BY THE OLD BONDHOLDERS, WILL
ELECT FOUR OUT OF NINE DIRECTORS OF THE NEW COMPANY; THE NEW COMMON
STOCK WILL ELECT THE REMAINDER N14.  BUT ON DESIGNATED DELINQUENCIES IN
PAYMENT OF INTEREST ON THE NEW BONDS, THE OLD BONDHOLDERS WOULD BE
ENTITLED TO ELECT SIX OF THE NINE DIRECTORS. 

THE BONDS OF UNION AND CONSUMERS HELD BY CONSOLIDATED N15, THE STOCK
OF THOSE COMPANIES HELD BY CONSOLIDATED, AND THE INTERCOMPANY CLAIMS
(DISCUSSED HEREAFTER) WILL BE CANCELLED. 

IN 1929 WHEN CONSOLIDATED ACQUIRED CONTROL OF THESE VARIOUS
PROPERTIES, THEY WERE APPRAISED IN EXCESS OF $16,000,000 AND IT WAS
ESTIMATED THAT THEIR ANNUAL NET EARNINGS WOULD BE $500,000.  IN 1931
THEY WERE APPRAISED BY OFFICERS AT ABOUT $4,400,000, "EXCLUSIVE OF
GOING CONCERN, GOOD WILL AND CURRENT ASSETS."  THE DISTRICT COURT DID
NOT FIND SPECIFIC VALUES FOR THE SEPARATE PROPERTIES OF CONSOLIDATED,
UNION, OR CONSUMERS, OR FOR THE PROPERTIES OF THE ENTERPRISE AS A
UNIT.  THE AVERAGE OF THE VALUATIONS (APPARENTLY BASED ON PHYSICAL
FACTORS) GIVEN BY THREE WITNESSES  FN16 AT THE HEARING BEFORE THE
MASTER WERE $2,202,733 FOR UNION AS AGAINST A MORTGAGE INDEBTEDNESS OF
$2,280,555; $1,151,033 FOR CONSUMERS AS AGAINST A MORTGAGE INDEBTEDNESS
OF $1,358,715.  RELYING ON SIMILAR TESTIMONY, CONSOLIDATED ARGUES THAT
THE VALUE OF ITS PROPERTY, TO BE CONTRIBUTED TO THE NEW COMPANY, IS
OVER $1,359,000, OR EXCLUSIVE OF AN ALLEGED GOOD WILL OF $500,000,
$859,784.  THESE ESTIMATED VALUES SOMEWHAT CONFLICT WITH THE
CONSOLIDATED BALANCE SHEET (AS AT JUNE 30, 1938) WHICH SHOWS ASSETS OF
$3,723,738.15 AND LIABILITIES (EXCLUSIVE OF CAPITAL AND SURPLUS) OF
$4,253,224.41.  MORE IMPORTANT, THE EARNINGS RECORD OF THE ENTERPRISE
CASTS GRAVE DOUBTS ON THE SOUNDNESS OF THE ESTIMATED VALUES.  NO
DIVIDENDS WERE EVER PAID ON CONSOLIDATED'S COMMON STOCK; AND EXCEPT FOR
FIVE QUARTERLY DIVIDENDS IN 1929 AND 1931, NONE ON ITS PREFERRED
STOCK.  FOR THE EIGHT AND A HALF YEARS FROM APRIL 1, 1929, TO SEPTEMBER
30, 1937, CONSOLIDATED HAD A LOSS OF ABOUT $1,200,000 BEFORE BOND
INTEREST BUT AFTER DEPRECIATION AND DEPLETION.  AND EXCEPT FOR THE YEAR
1929, CONSOLIDATED HAD NO NET OPERATING PROFIT, AFTER BOND INTEREST AND
AMORTIZATION, DEPRECIATION AND DEPLETION, IN ANY YEAR DOWN TO SEPTEMBER
30, 1937.  FN17  YET ON THIS RECORD THE DISTRICT COURT FOUND THAT THE
PRESENT FAIR VALUE OF ALL THE ASSETS OF THE SEVERAL COMPANIES,
EXCLUSIVE OF GOOD WILL AND GOING CONCERN VALUE, WAS IN EXCESS OF THE
TOTAL BONDED INDEBTEDNESS, PLUS ACCRUED AND UNPAID INTEREST.  AND IT
ALSO FOUND THAT SUCH VALUE, INCLUDING GOOD WILL AND GOING CONCERN
VALUE, WAS INSUFFICIENT TO PAY THE BONDED INDEBTEDNESS PLUS ACCRUED AND
UNPAID INTEREST AND THE LIQUIDATION PREFERENCES AND ACCRUED DIVIDENDS
ON CONSOLIDATED PREFERRED STOCK.  IT FURTHER FOUND THAT THE PRESENT
FAIR VALUE OF THE ASSETS ADMITTEDLY SUBJECT TO THE TRUST INDENTURES OF
UNION AND CONSUMERS WAS INSUFFICIENT TO PAY THE FACE AMOUNT, PLUS
ACCRUED AND UNPAID INTEREST OF THE RESPECTIVE BOND ISSUES.  IN SPITE OF
THAT FINDING, THE DISTRICT COURT ALSO FOUND THAT "IT WOULD BE
PHYSICALLY IMPOSSIBLE TO DETERMINE AND SEGREGATE WITH ANY DEGREE OF
ACCURACY OR FAIRNESS PROPERTIES WHICH ORIGINALLY BELONGED TO THE
COMPANIES SEPARATELY"; THAT AS A RESULT OF UNIFIED OPERATION PROPERTIES
OF EVERY CHARACTER "HAVE BEEN COMMINGLED AND ARE NOW IN THE MAIN HELD
BY CONSOLIDATED WITHOUT ANY WAY OF ASCERTAINING WHAT PART, IF ANY
THEREOF, BELONGS TO EACH OR ANY OF THE COMPANIES SEPARATELY"; AND THAT,
AS A CONSEQUENCE, AN APPRAISAL "WOULD BE OF SUCH AN INDEFINITE AND
UNSATISFACTORY NATURE AS TO PRODUCE FURTHER CONFUSION." 

THE UNIFIED OPERATION WHICH RESULTED IN THAT COMMINGLING OF ASSETS
WAS PURSUANT TO AN OPERATING AGREEMENT WHICH CONSOLIDATED CAUSED ITS
WHOLLY OWNED SUBSIDIARIES N18 TO EXECUTE IN 1929.  UNDER THAT AGREEMENT
THE SUBSIDIARIES CEASED ALL OPERATING FUNCTIONS AND THE ENTIRE
MANAGEMENT, OPERATION AND FINANCING OF THE BUSINESS AND PROPERTIES OF
THE SUBSIDIARIES WERE UNDERTAKEN BY CONSOLIDATED.  THE CORPORATE
EXISTENCE OF THE SUBSIDIARIES, HOWEVER, WAS MAINTAINED AND CERTAIN
SEPARATE ACCOUNTS WERE KEPT.  UNDER THIS AGREEMENT CONSOLIDATED
UNDERTOOK, INTER ALIA, TO PAY THE SUBSIDIARIES THE AMOUNTS NECESSARY
FOR THE INTEREST AND SINKING FUND PROVISIONS OF THE INDENTURES AND TO
CREDIT THEIR CURRENT ACCOUNTS WITH ITEMS OF DEPRECIATION, DEPLETION,
AMORTIZATION AND OBSOLESCENCE N19.  UPON TERMINATION OF THE AGREEMENT
THE PROPERTIES WERE TO BE RETURNED AND A FINAL SETTLEMENT OF ACCOUNTS
MADE, CONSOLIDATED MEANWHILE TO RETAIN ALL NET REVENUES AFTER ITS
OBLIGATIONS THEREUNDER TO THE SUBSIDIARIES HAD BEEN MET.  IT WAS
SPECIFICALLY PROVIDED THAT THE AGREEMENT WAS MADE FOR THE BENEFIT OF
THE PARTIES, NOT "FOR THE BENEFIT OF ANY THIRD PERSON."  CONSOLIDATED'S
BOOKS AS AT JUNE 30, 1938, SHOWED A NET INDEBTEDNESS UNDER THAT
AGREEMENT TO UNION AND CONSUMERS OF SOMEWHAT OVER $5,000,000.  THAT
CLAIM WAS CANCELLED BY THE PLAN OF REORGANIZATION, NO SECURITIES BEING
ISSUED TO THE CREDITORS OF THE SUBSIDIARIES THEREFOR.  THE DISTRICT
COURT MADE NO FINDINGS AS RESPECTS THE AMOUNT OR VALIDITY OF THAT
INTERCOMPANY CLAIM; IT SUMMARILY DISPOSED OF IT BY CONCLUDING THAT ANY
LIABILITY UNDER THE OPERATING AGREEMENT WAS "NOT MADE FOR THE BENEFIT
OF ANY THIRD PARTIES AND THE BONDHOLDERS ARE INCLUDED IN THAT
CATEGORY." 

WE AGREE WITH THE CIRCUIT COURT OF APPEALS THAT IT WAS ERROR TO
CONFIRM THIS PLAN OF REORGANIZATION. 

I. ON THIS RECORD NO DETERMINATION OF THE FAIRNESS OF ANY PLAN OF
REORGANIZATION COULD BE MADE.  ABSENT THE REQUISITE VALUATION DATA, THE
COURT WAS IN NO POSITION TO EXERCISE THE "INFORMED, INDEPENDENT
JUDGMENT" (NATIONAL SURETY CO. V. CORIELL, 289 U.S. 426, 436) WHICH
APPRAISAL OF THE FAIRNESS OF A PLAN OF REORGANIZATION ENTAILS.  CASE V.
LOS ANGELES LUMBER PRODUCTS CO., 308 U.S. 106.  AND SEE FIRST NATIONAL
BANK V. FLERSHEM, 290 U.S. 504, 525.  THERE ARE TWO ASPECTS OF THAT
VALUATION PROBLEM. 

IN THE FIRST PLACE, THERE MUST BE A DETERMINATION OF WHAT ASSETS ARE
SUBJECT TO THE PAYMENT OF THE RESPECTIVE CLAIMS.  THIS OBVIOUS
REQUIREMENT WAS NOT MET.  THE STATUS OF THE UNION AND CONSUMERS
BONDHOLDERS EMPHASIZES ITS NECESSITY AND IMPORTANCE.  ACCORDING TO THE
DISTRICT COURT THE MORTGAGED ASSETS ARE INSUFFICIENT TO PAY THE
MORTGAGE DEBT.  THERE IS NO FINDING, HOWEVER, AS TO THE EXTENT OF THE
DEFICIENCY OR THE AMOUNT OF UNMORTGAGED ASSETS AND THEIR VALUE.  IT IS
PLAIN THAT THE BONDHOLDERS WOULD HAVE, AS AGAINST CONSOLIDATED AND ITS
STOCKHOLDERS, PRIOR RECOURSE AGAINST ANY UNMORTGAGED ASSETS OF UNION
AND CONSUMERS.  THE FULL AND ABSOLUTE PRIORITY RULE OF NORTHERN PACIFIC
RY. CO. V. BOYD, 228 U.S. 482, AND CASE V. LOS ANGELES LUMBER PRODUCTS
CO., SUPRA, WOULD PRECLUDE PARTICIPATION BY THE EQUITY INTERESTS IN ANY
OF THOSE ASSETS UNTIL THE BONDHOLDERS HAD BEEN MADE WHOLE.  HERE THERE
ARE SOME UNMORTGAGED ASSETS, FOR THERE IS A CLAIM OF UNION AND
CONSUMERS AGAINST CONSOLIDATED - A CLAIM WHICH ACCORDING TO THE BOOKS
OF CONSOLIDATED IS OVER $5,000,000 IN AMOUNT.  IF THAT CLAIM IS VALID,
FN20  OR EVEN IF IT WERE ALLOWED ONLY TO THE EXTENT OF 25% OF ITS FACE
AMOUNT,  FN21  THEN THE ENTIRE ASSETS OF CONSOLIDATED WOULD BE DRAWN
DOWN INTO THE ESTATES OF THE SUBSIDIARIES.  IN THAT EVENT UNION AND
CONSUMERS MIGHT OR MIGHT NOT BE SOLVENT IN THE BANKRUPTCY SENSE.  BUT
CERTAINLY IT WOULD RENDER UNTENABLE THE PRESENT CONTENTION OF
CONSOLIDATED AND THE PREFERRED STOCKHOLDERS THAT THEY ARE CONTRIBUTING
ALL OF THE ASSETS OF THE CONSOLIDATED TO THE NEW COMPANY IN EXCHANGE
FOR WHICH THEY ARE ENTITLED TO NEW SECURITIES.  ON THAT THEORY OF THE
CASE THEY WOULD BE MAKING A CONTRIBUTION OF ONLY SUCH ASSETS OF
CONSOLIDATED, IF ANY, AS REMAINED AFTER ANY DEFICIENCY OF THE
BONDHOLDERS HAD BEEN WHOLLY SATISFIED. 

THERE ARE NO BARRIERS TO A VALUATION AND ENFORCEMENT OF THAT CLAIM. 
IF AS CONSOLIDATED MAINTAINS THE SUBSIDIARIES HAVE NO PRESENT CLAIM
AGAINST IT,  FN22  THE CLAIM CAN READILY BE DISCOUNTED TO PRESENT
WORTH.  IT IS PROVABLE BY TRUSTEES OF THE SUBSIDIARIES, FOR THE TERM
"CREDITORS" UNDER SEC. 77B (B) INCLUDES "HOLDERS OF CLAIMS OF WHATEVER
CHARACTER AGAINST THE DEBTOR OR ITS PROPERTY, INCLUDING CLAIMS UNDER
EXECUTORY CONTRACTS, WHETHER OR NOT SUCH CLAIMS WOULD OTHERWISE
CONSTITUTE PROVABLE CLAIMS UNDER THIS ACT."  FN23  CONSOLIDATED MAKES
SOME POINT OF THE DIFFICULTY AND EXPENSE OF DETERMINING THE EXTENT OF
ITS LIABILITY UNDER THE OPERATING AGREEMENT AND OF THE NECESSITY TO
ABIDE BY THE TECHNICAL TERMS OF THAT AGREEMENT  FN24  IN ASCERTAINING
THAT LIABILITY.  BUT EQUITY WILL NOT PERMIT A HOLDING COMPANY, WHICH
HAS DOMINATED AND CONTROLLED ITS SUBSIDIARIES, TO ESCAPE OR REDUCE ITS
LIABILITY TO THOSE SUBSIDIARIES BY RELIANCE UPON SELF-SERVING CONTRACTS
WHICH IT HAS IMPOSED ON THEM.  A HOLDING COMPANY, AS WELL AS OTHERS IN
DOMINATING OR CONTROLLING POSITIONS (PEPPER V. LITTON, 308 U.S. 295),
HAS FIDUCIARY DUTIES TO SECURITY HOLDERS OF ITS SYSTEM WHICH WILL BE
STRICTLY ENFORCED.  SEE TAYLOR V. STANDARD GAS & ELECTRIC CO., 306 U.S.
307.  IN THIS CONNECTION CONSOLIDATED CANNOT DEFEAT OR POSTPONE THE
ACCOUNTING BECAUSE OF THE CLAUSE IN THE OPERATING AGREEMENT THAT IT WAS
NOT MADE FOR THE BENEFIT OF ANY THIRD PERSON.  THE QUESTION HERE IS NOT
A TECHNICAL ONE AS TO WHO MAY SUE TO ENFORCE THAT LIABILITY.  IT IS
MERELY A QUESTION AS TO THE AMOUNT BY WHICH CONSOLIDATED IS INDEBTED TO
THE SUBSIDIARIES AND THE PROOF AND ALLOWANCE OF THAT CLAIM.  THE
SUBSIDIARIES NEED NOT BE SENT INTO STATE COURTS TO HAVE THAT LIABILITY
DETERMINED.  THE BANKRUPTCY COURT HAVING EXCLUSIVE JURISDICTION OVER
THE HOLDING COMPANY AND THE SUBSIDIARIES HAS PLENARY POWER TO
ADJUDICATE ALL THE ISSUES PERTAINING TO THE CLAIM.  THE INTIMATIONS OF
CONSOLIDATED THAT THERE MUST BE FORECLOSURE PROCEEDINGS AND PROTRACTED
LITIGATION IN STATE COURTS INVOLVE A MISCONCEPTION OF THE DUTIES AND
POWERS OF THE BANKRUPTCY COURT.  THE FACT THAT CONSOLIDATED MIGHT HAVE
A STRATEGIC OR NUISANCE VALUE OUTSIDE OF SEC. 77B DOES NOT DETRACT FROM
OR IMPAIR THE POWER AND DUTY OF THE BANKRUPTCY COURT TO REQUIRE A FULL
ACCOUNTING AS A CONDITION PRECEDENT TO APPROVAL OF ANY PLAN OF
REORGANIZATION.  THE FACT THAT THE CLAIM MIGHT BE SETTLED, WITH THE
APPROVAL OF THE COURT AFTER FULL DISCLOSURE AND NOTICE TO INTERESTED
PARTIES, DOES NOT JUSTIFY THE CONCEALED COMPROMISE EFFECTED HERE
THROUGH THE SIMPLE EXPEDIENT OF EXTINGUISHING THE CLAIM.    SO FAR AS
THE ABILITY OF THE BONDHOLDERS OF UNION AND CONSUMERS TO REACH THE
ASSETS OF CONSOLIDATED ON CLAIMS OF THE KIND COVERED BY THE OPERATION
AGREEMENT IS CONCERNED, THERE IS ANOTHER AND MORE DIRECT ROUTE WHICH
REACHES THE SAME END.  THERE HAS BEEN A UNIFIED OPERATION OF THOSE
SEVERAL PROPERTIES BY CONSOLIDATED PURSUANT TO THE OPERATING
AGREEMENT.  THAT OPERATION NOT ONLY RESULTED IN EXTENSIVE COMMINGLING
OF ASSETS.  ALL MANAGEMENT FUNCTIONS OF THE SEVERAL COMPANIES WERE
ASSUMED BY CONSOLIDATED.  THE SUBSIDIARIES ABDICATED.  CONSOLIDATED
OPERATED THEM AS MERE DEPARTMENTS OF ITS OWN BUSINESS.  NOT EVEN THE
FORMALITIES OF SEPARATE CORPORATE ORGANIZATIONS WERE OBSERVED, EXCEPT
IN MINOR PARTICULARS SUCH AS THE MAINTENANCE OF CERTAIN SEPARATE
ACCOUNTS.  IN VIEW OF THESE FACTS, CONSOLIDATED IS IN NO POSITION TO
CLAIM THAT ITS ASSETS ARE INSULATED FROM SUCH CLAIMS OF CREDITORS OF
THE SUBSIDIARIES.  TO THE CONTRARY, IT IS WELL SETTLED THAT WHERE A
HOLDING COMPANY DIRECTLY INTERVENES IN THE MANAGEMENT OF ITS
SUBSIDIARIES SO AS TO TREAT THEM AS MERE DEPARTMENTS OF ITS OWN
ENTERPRISE, IT IS RESPONSIBLE FOR THE OBLIGATIONS OF THOSE SUBSIDIARIES
INCURRED OR ARISING DURING ITS MANAGEMENT.  DAVIS V. ALEXANDER, 269
U.S. 114, 117; JOSEPH R. FOARD CO. V. MARYLAND, 219 F. 827, 829; STARK
ELECTRIC R. CO. V. M'GINTY CONTRACTING CO., 238 F. 657, 661-663; THE
WILLEM VAN DRIEL, SR., 252 F. 35, 37-39; LUCKENBACH S.S. CO. V. W.R.
GRACE & CO., 267 F. 676, 681; COSTAN V. MANILA ELECTRIC CO., 24 F.2D
383; KINGSTON DRY DOCK CO. V. LAKE CHAMPLAIN TRANSP.  CO., 31 F.2D 265,
267; DILLARD & COFFIN CO. V. RICHMOND COTTON OIL CO., 140 TENN. 290;
204 S.W. 758.  WE ARE NOT DEALING HERE WITH A SITUATION WHERE OTHER
CREDITORS OF A PARENT COMPANY ARE COMPETING WITH CREDITORS OF ITS
SUBSIDIARIES.  IF METICULOUS REGARD TO CORPORATE FORMS, WHICH
CONSOLIDATED HAS LONG IGNORED, IS NOW OBSERVED, THE STOCKHOLDERS OF
CONSOLIDATED MAY BE THE DIRECT BENEFICIARIES.  EQUITY WILL NOT
COUNTENANCE SUCH A RESULT.  A HOLDING COMPANY WHICH ASSUMES TO TREAT
THE PROPERTIES OF ITS SUBSIDIARIES AS ITS OWN CANNOT TAKE THE BENEFITS
OF DIRECT MANAGEMENT WITHOUT THE BURDENS. 

WE HAVE ALREADY NOTED THAT NO ADEQUATE FINDING WAS MADE AS TO THE
VALUE OF THE ASSETS OF CONSOLIDATED.  IN VIEW OF WHAT WE HAVE SAID, IT
IS APPARENT THAT A DETERMINATION OF THAT VALUE MUST BE MADE SO THAT
CRITERIA WILL BE AVAILABLE TO DETERMINE AN APPROPRIATE ALLOCATION OF
NEW SECURITIES BETWEEN BONDHOLDERS AND STOCKHOLDERS IN CASE THERE IS AN
EQUITY REMAINING AFTER THE BONDHOLDERS HAVE BEEN MADE WHOLE. 

THERE IS ANOTHER REASON WHY THE FAILURE TO ASCERTAIN WHAT ASSETS ARE
SUBJECT TO THE PAYMENT OF THE UNION AND CONSUMERS BONDS IS FATAL. 
THERE IS A QUESTION RAISED AS TO THE FAIRNESS OF THE PLAN AS RESPECTS
THE BONDHOLDERS INTER SESE.  WHILE THE TOTAL MORTGAGE DEBT OF CONSUMERS
IS LESS THAN THAT OF UNION, THE NET INCOME OF THE NEW COMPANY, AS WE
HAVE SEEN,  FN25  IS TO BE DIVIDED INTO TWO EQUAL PARTS, ONE TO SERVICE
THE NEW SECURITIES ISSUED TO CONSUMERS BONDHOLDERS, THE OTHER TO
SERVICE THOSE ISSUED TO UNION BONDHOLDERS.  THAT ALLOCATION IS ATTACKED
HERE BY RESPONDENT AS DISCRIMINATORY AGAINST UNION, ON THE GROUND THAT
THE ASSETS OF UNION ARE MUCH GREATER IN VOLUME AND IN VALUE THAN THOSE
OF CONSUMERS.  IT DOES NOT APPEAR FROM THIS RECORD THAT UNION AND
CONSUMERS HAVE INDIVIDUAL EARNINGS RECORDS.  IF THEY DO NOT, SOME
APPROPRIATE FORMULA FOR AT LEAST AN APPROXIMATE ASCERTAINMENT OF THEIR
RESPECTIVE ASSETS MUST BE DESIGNED IN SPITE OF THE DIFFICULTIES
OCCASIONED BY THE COMMINGLING.  OTHERWISE THE ISSUE OF FAIRNESS OF ANY
PLAN OF REORGANIZATION AS BETWEEN UNION AND CONSUMERS BONDHOLDERS
CANNOT BE INTELLIGENTLY RESOLVED. 

IN THE SECOND PLACE, THERE IS THE QUESTION OF THE METHOD OF
VALUATION.  FROM THIS RECORD IT IS APPARENT THAT LITTLE, IF ANY, EFFORT
WAS MADE TO VALUE THE WHOLE ENTERPRISE BY A CAPITALIZATION OF
PROSPECTIVE EARNINGS.  THE NECESSITY FOR SUCH AN INQUIRY IS EMPHASIZED
BY THE POOR EARNINGS RECORD OF THIS ENTERPRISE IN THE PAST.  FINDINGS
AS TO THE EARNING CAPACITY OF AN ENTERPRISE ARE ESSENTIAL TO A
DETERMINATION OF THE FEASIBILITY AS WELL AS THE FAIRNESS OF A PLAN OF
REORGANIZATION.  WHETHER OR NOT THE EARNINGS MAY REASONABLY BE EXPECTED
TO MEET THE INTEREST AND DIVIDEND REQUIREMENTS OF THE NEW SECURITIES IS
A SINE QUA NON TO A DETERMINATION OF THE INTEGRITY AND PRACTICABILITY
OF THE NEW CAPITAL STRUCTURE.  IT IS ALSO ESSENTIAL FOR SATISFACTION OF
THE ABSOLUTE PRIORITY RULE OF CASE V. LOS ANGELES LUMBER PRODUCTS CO.,
SUPRA.  UNLESS METICULOUS REGARD FOR EARNING CAPACITY BE HAD,
INDEFENSIBLE PARTICIPATION OF JUNIOR SECURITIES IN PLANS OF
REORGANIZATION MAY RESULT. 

AS MR. JUSTICE HOLMES SAID IN GALVESTON, H. & S.A. RY. CO. V. TEXAS,
210 U.S. 217, 226, "THE COMMERCIAL VALUE OF PROPERTY CONSISTS IN THE
EXPECTATION OF INCOME FROM IT."  AND SEE CLEVELAND, C., C. & ST. L. RY.
CO. V. BACKUS, 154 U.S. 439, 445.  SUCH CRITERION IS THE APPROPRIATE
ONE HERE, SINCE WE ARE DEALING WITH THE ISSUE OF SOLVENCY ARISING IN
CONNECTION WITH REORGANIZATION PLANS INVOLVING PRODUCTIVE PROPERTIES. 
IT IS PLAIN THAT VALUATIONS FOR OTHER PURPOSES ARE NOT RELEVANT TO OR
HELPFUL IN A DETERMINATION OF THAT ISSUE, EXCEPT AS THEY MAY INDIRECTLY
BEAR ON EARNING CAPACITY.  TEMMER V. DENVER TRAMWAY CO., 18 F.2D 226,
229; NEW YORK TRUST CO. V. CONTINENTAL & COMMERCIAL TRUST & SAV. BANK,
26 F.2D 872, 874.  THE CRITERION OF EARNING CAPACITY IS THE ESSENTIAL
ONE IF THE ENTERPRISE IS TO BE FREED FROM THE HEAVY HAND OF PAST
ERRORS, MISCALCULATIONS OR DISASTER, AND IF THE ALLOCATION OF
SECURITIES AMONG THE VARIOUS CLAIMANTS IS TO BE FAIR AND EQUITABLE.  IN
RE WICKWIRE SPENCER STEEL CO., 12 F.SUPP.  528, 533; 2 BONBRIGHT,
VALUATION OF PROPERTY, PP. 870-881, 884-893.  SINCE ITS APPLICATION
REQUIRES A PREDICTION AS TO WHAT WILL OCCUR IN THE FUTURE, AN ESTIMATE,
AS DISTINGUISHED FROM MATHEMATICAL CERTITUDE, IS ALL THAT CAN BE MADE. 
BUT THAT ESTIMATE MUST BE BASED ON AN INFORMED JUDGMENT WHICH EMBRACES
ALL FACTS RELEVANT TO FUTURE EARNING CAPACITY AND HENCE TO PRESENT
WORTH, INCLUDING, OF COURSE, THE NATURE AND CONDITION OF THE
PROPERTIES, THE PAST EARNINGS RECORD, AND ALL CIRCUMSTANCES WHICH
INDICATE WHETHER OR NOT THAT RECORD IS A RELIABLE CRITERION OF FUTURE
PERFORMANCE.  A SUM OF VALUES BASED ON PHYSICAL FACTORS AND ASSIGNED TO
SEPARATE UNITS OF THE PROPERTY WITHOUT REGARD TO THE EARNING CAPACITY
OF THE WHOLE ENTERPRISE IS PLAINLY INADEQUATE.  SEE FINLETTER, THE LAW
OF BANKRUPTCY REORGANIZATION, PP. 557 ET SEQ. BUT HARDLY MORE THAN THAT
WAS DONE HERE.  THE CIRCUIT COURT OF APPEALS CORRECTLY LEFT THE MATTER
OF A FORMAL APPRAISAL TO THE DISCRETION OF THE DISTRICT COURT.  THE
EXTENT AND METHOD OF INQUIRY NECESSARY FOR A VALUATION BASED ON EARNING
CAPACITY ARE NECESSARILY DEPENDENT ON THE FACTS OF EACH CASE. 

II.  THE CIRCUIT COURT OF APPEALS HELD THAT THE ABSOLUTE PRIORITY
RULE OF NORTHERN PACIFIC RY. CO. V. BOYD, SUPRA, AND CASE V. LOS
ANGELES LUMBER PRODUCTS CO., SUPRA, APPLIED TO REORGANIZATIONS OF
SOLVENT AS WELL AS INSOLVENT COMPANIES.  THAT IS TRUE.  WHETHER A
COMPANY IS SOLVENT OR INSOLVENT IN EITHER THE EQUITY OR THE BANKRUPTCY
SENSE, "ANY ARRANGEMENT OF THE PARTIES BY WHICH THE SUBORDINATE RIGHTS
AND INTERESTS OF THE STOCKHOLDERS ARE ATTEMPTED TO BE SECURED AT THE
EXPENSE OF THE PRIOR RIGHTS" OF CREDITORS "COMES WITHIN JUDICIAL
DENUNCIATION."  LOUISVILLE TRUST CO. V. LOUISVILLE, N.A. & C. RY. CO.,
174 U.S. 674, 684.  AND WE INDICATED IN CASE V. LOS ANGELES LUMBER
PRODUCTS CO., SUPRA, THAT THAT RULE WAS NOT SATISFIED EVEN THOUGH THE
"RELATIVE PRIORITIES" OF CREDITORS AND STOCKHOLDERS WERE MAINTAINED
(PP. 119-120). 

THE INSTANT PLAN RUNS AFOUL OF THAT PRINCIPLE.  IN THE FIRST PLACE,
NO PROVISION IS MADE FOR THE ACCRUED INTEREST ON THE BONDS.  THIS
INTEREST IS ENTITLED TO THE SAME PRIORITY AS THE PRINCIPAL.  SEE
AMERICAN IRON & STEEL MFG. CO. V. SEABOARD AIR LINE RY., 233 U.S. 261,
266-267; TICONIC NATIONAL BANK V. SPRAGUE, 303 U.S. 406.  IN THE SECOND
PLACE, AND APART FROM THE CANCELLATION OF INTEREST, THE PLAN DOES NOT
SATISFY THE FIXED PRINCIPLE OF THE BOYD CASE EVEN ON THE ASSUMPTION
THAT THE ENTERPRISE AS A WHOLE IS SOLVENT IN THE BANKRUPTCY SENSE.  THE
BONDHOLDERS FOR THE PRINCIPAL AMOUNT OF THEIR 6% BONDS RECEIVE AN EQUAL
FACE AMOUNT OF NEW 5% INCOME BONDS AND PREFERRED STOCK, WHILE THE
PREFERRED STOCKHOLDERS RECEIVE NEW COMMON STOCK.  TRUE, THE RELATIVE
PRIORITIES ARE MAINTAINED.  BUT THE BONDHOLDERS HAVE NOT BEEN MADE
WHOLE.  THEY HAVE RECEIVED AN INFERIOR GRADE OF SECURITIES, INFERIOR IN
THE SENSE THAT THE INTEREST RATE HAS BEEN REDUCED, A CONTINGENT RETURN
HAS BEEN SUBSTITUTED FOR A FIXED ONE, THE MATURITIES HAVE BEEN IN PART
EXTENDED AND IN PART ELIMINATED BY THE SUBSTITUTION OF PREFERRED STOCK,
AND THEIR FORMER STRATEGIC POSITION HAS BEEN WEAKENED.  THOSE LOST
RIGHTS ARE OF VALUE.  FULL COMPENSATORY PROVISION MUST BE MADE FOR THE
ENTIRE BUNDLE OF RIGHTS WHICH THE CREDITORS SURRENDER. 

THE ABSOLUTE PRIORITY RULE DOES NOT MEAN THAT BONDHOLDERS CANNOT BE
GIVEN INFERIOR GRADES OF SECURITIES, OR EVEN SECURITIES OF THE SAME
GRADE AS ARE RECEIVED BY JUNIOR INTERESTS.  REQUIREMENTS OF FEASIBILITY
FN26  OF REORGANIZATION PLANS FREQUENTLY NECESSITATE IT IN THE
INTERESTS OF SIMPLER AND MORE CONSERVATIVE CAPITAL STRUCTURES.  AND
STANDARDS OF FAIRNESS PERMIT IT.  THIS WAS RECOGNIZED IN KANSAS CITY
TERMINAL RY. CO. V. CENTRAL UNION TRUST CO., 271 U.S. 445.  THIS COURT
THERE SAID (P. 455) THAT THOUGH "TO THE EXTENT OF THEIR DEBTS CREDITORS
ARE ENTITLED TO PRIORITY OVER STOCKHOLDERS AGAINST ALL THE PROPERTY" OF
THE DEBTOR COMPANY, "IT DOES NOT FOLLOW THAT IN EVERY REORGANIZATION
THE SECURITIES OFFERED TO GENERAL CREDITORS MUST BE SUPERIOR IN RANK OR
GRADE TO ANY WHICH STOCKHOLDERS MAY OBTAIN.  IT IS NOT IMPOSSIBLE TO
ACCORD TO THE CREDITOR HIS SUPERIOR RIGHTS IN OTHER WAYS."  AND THE
COURT WENT ON TO SAY (P. 456), "NO OFFER IS FAIR WHICH DOES NOT
RECOGNIZE THE PRIOR RIGHTS OF CREDITORS  ...  ; BUT CIRCUMSTANCES MAY
JUSTIFY AN OFFER OF DIFFERENT AMOUNTS OF THE SAME GRADE OF SECURITIES
TO BOTH CREDITORS AND STOCKHOLDERS."  THUS IT IS PLAIN THAT WHILE
CREDITORS MAY BE GIVEN INFERIOR GRADES OF SECURITIES, THEIR "SUPERIOR
RIGHTS" MUST BE RECOGNIZED.  CLEARLY, THOSE PRIOR RIGHTS ARE NOT
RECOGNIZED, IN CASES WHERE STOCKHOLDERS ARE PARTICIPATING IN THE PLAN,
IF CREDITORS ARE GIVEN ONLY A FACE AMOUNT OF INFERIOR SECURITIES EQUAL
TO THE FACE AMOUNT OF THEIR CLAIMS.  THEY MUST RECEIVE, IN ADDITION,
COMPENSATION FOR THE SENIOR RIGHTS WHICH THEY ARE TO SURRENDER.  IF
THEY RECEIVE LESS THAN THAT FULL COMPENSATORY TREATMENT, SOME OF THEIR
PROPERTY RIGHTS WILL BE APPROPRIATED FOR THE BENEFIT OF STOCKHOLDERS
WITHOUT COMPENSATION.  THAT IS NOT PERMISSIBLE.  THE PLAN THEN COMES
WITHIN JUDICIAL DENUNCIATION BECAUSE IT DOES NOT RECOGNIZE THE
CREDITORS'"EQUITABLE RIGHT TO BE PREFERRED TO STOCKHOLDERS AGAINST THE
FULL VALUE OF ALL PROPERTY BELONGING TO THE DEBTOR CORPORATION." 
KANSAS CITY TERMINAL RY. CO. V. CENTRAL UNION TRUST CO., SUPRA, P.
454. 

PRACTICAL ADJUSTMENTS, RATHER THAN A RIGID FORMULA, ARE NECESSARY. 
THE METHOD OF EFFECTING FULL COMPENSATION FOR SENIOR CLAIMANTS WILL
VARY FROM CASE TO CASE.  AS INDICATED IN THE BOYD CASE (228 U.S. AT P.
508) THE CREDITORS ARE ENTITLED TO HAVE THE FULL VALUE OF THE PROPERTY,
WHETHER "PRESENT OR PROSPECTIVE, FOR DIVIDENDS OR ONLY FOR PURPOSES OF
CONTROL," FIRST APPROPRIATED TO PAYMENT OF THEIR CLAIMS.  BUT WHETHER
IN CASE OF A SOLVENT COMPANY THE CREDITORS SHOULD BE MADE WHOLE FOR THE
CHANGE IN OR LOSS OF THEIR SENIORITY BY AN INCREASED PARTICIPATION IN
ASSETS, IN EARNINGS OR IN CONTROL, OR IN ANY COMBINATION THEREOF, WILL
BE DEPENDENT ON THE FACTS AND REQUIREMENTS OF EACH CASE.  FN27  SO LONG
AS THE NEW SECURITIES OFFERED ARE OF A VALUE EQUAL TO THE CREDITORS'
CLAIMS, THE APPROPRIATENESS OF THE FORMULA EMPLOYED RESTS IN THE
INFORMED DISCRETION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS, HOWEVER, MADE CERTAIN STATEMENTS WHICH
IF TAKEN LITERALLY DO NOT COMPORT WITH THE REQUIREMENTS OF THE ABSOLUTE
PRIORITY RULE.  IT APPARENTLY RULED THAT A CLASS OF CLAIMANTS WITH A
LIEN ON SPECIFIC PROPERTIES MUST RECEIVE FULL COMPENSATION OUT OF THOSE
PROPERTIES, AND THAT A PLAN OF REORGANIZATION IS PER SE UNFAIR AND
INEQUITABLE IF IT SUBSTITUTES FOR SEVERAL OLD BOND ISSUES, SEPARATELY
SECURED, NEW SECURITIES CONSTITUTING AN INTEREST IN ALL OF THE
PROPERTIES.  THAT DOES NOT FOLLOW FROM CASE V. LOS ANGELES LUMBER
PRODUCTS CO., SUPRA.  IF THE CREDITORS ARE ADEQUATELY COMPENSATED FOR
THE LOSS OF THEIR PRIOR CLAIMS, IT IS NOT MATERIAL OUT OF WHAT ASSETS
THEY ARE PAID.  SO LONG AS THEY RECEIVE FULL COMPENSATORY TREATMENT AND
SO LONG AS EACH GROUP SHARES IN THE SECURITIES OF THE WHOLE ENTERPRISE
ON AN EQUITABLE BASIS, THE REQUIREMENTS OF "FAIR AND EQUITABLE" ARE
SATISFIED. 

ANY OTHER STANDARD MIGHT WELL PLACE INSUPERABLE OBSTACLES IN THE WAY
OF FEASIBLE PLANS OF REORGANIZATION.  CERTAINLY WHERE UNIFIED
OPERATIONS OF SEPARATE PROPERTIES ARE DEEMED ADVISABLE AND ESSENTIAL,
AS THEY WERE IN THIS CASE, THE ELIMINATION OF DIVISIONAL MORTGAGES MAY
BE NECESSARY AS WELL AS WISE.  MOREOVER, THE SUBSTITUTION OF A SIMPLE,
CONSERVATIVE CAPITAL STRUCTURE FOR A HIGHLY COMPLICATED ONE MAY BE A
PRIMARY REQUIREMENT OF ANY REORGANIZATION PLAN.  THERE IS NO NECESSITY
TO CONSTRUCT THE NEW CAPITAL STRUCTURE ON THE FRAMEWORK OF THE OLD. 
AFFIRMED.    FN1  THE PROCEEDINGS UNDER SEC. 77B WERE INSTITUTED IN
1935 BY THE FILING OF SEPARATE VOLUNTARY PETITIONS BY CONSOLIDATED,
UNION AND CONSUMERS.  NO TRUSTEES HAVE BEEN APPOINTED, CONSOLIDATED
REMAINING IN POSSESSION. 

FN2  THE PETITION IN NO. 400 RAISES ALL OF THE QUESTIONS DISCUSSED
HEREIN, WHILE THE PETITION IN NO. 444 RAISES ONLY THE QUESTION AS TO
THE AUTHORITY OF THE REORGANIZATION COURT TO APPROVE A PLAN WHICH
SUBSTITUTES ONE MORTGAGE COVERING ALL OF THE PROPERTY FOR SO-CALLED
DIVISIONAL MORTGAGES ON SEPARATE UNITS OF THAT PROPERTY.  THE
INTERSTATE COMMERCE COMMISSION AND THE SECURITIES AND EXCHANGE
COMMISSION FILED MEMORANDA URGING THAT THE PETITION IN NO. 444 BE
GRANTED AND THAT THE PETITION IN NO. 400 BE GRANTED TO THE EXTENT THAT
IT RAISED THE SAME QUESTION AS THAT PRESENTED BY THE PETITION IN NO.
444. 

FN3  $102,500 FACE AMOUNT OF UNION'S BONDS ARE HELD BY CONSOLIDATED. 

FN4  AS OF APRIL 1, 1937, THE EFFECTIVE DATE OF THE PLAN.  INTEREST
ON UNION BONDS HAS BEEN IN DEFAULT SINCE MARCH 1, 1934. 

FN5  $63,500 FACE AMOUNT OF CONSUMERS' BONDS ARE HELD BY
CONSOLIDATED. 

FN6  INTEREST HAS BEEN IN DEFAULT SINCE JULY 1, 1934. 

FN7  WITH A PREFERENCE ON LIQUIDATION OF $25 PER SHARE PLUS ACCRUED
DIVIDENDS. 

FN8  RELIANCE ROCK CO. IS A WHOLLY OWNED SUBSIDIARY OF UNION WHOSE
PROPERTIES ALSO WERE TO BE TRANSFERRED TO THE NEW COMPANY. 

FN9  THE CLAIMS OF GENERAL CREDITORS WILL BE PAID IN FULL OR ASSUMED
BY THE NEW COMPANY. 

FN10  THESE BONDS WILL MATURE IN 20 YEARS AND WILL BEAR INTEREST AT
THE RATE OF 5 PER CENT IF EARNED.  THE INTEREST WILL BE CUMULATIVE IF
NOT PAID.  THE BONDS, AS WELL AS THE PREFERRED STOCK, TO BE ISSUED TO
UNION AND CONSUMERS BONDHOLDERS WILL BE IN SEPARATE SERIES.  THE NET
INCOME OF THE NEW COMPANY IS TO BE DIVIDED INTO TWO EQUAL PARTS:  EACH
PART TO BE USED TO PAY, WITH RESPECT TO BONDS AND PREFERRED STOCK OF
EACH SERIES, FIRST, INTEREST AND SINKING FUND PAYMENTS ON THE BONDS;
SECOND, DIVIDENDS AND SINKING FUND PAYMENTS ON THE PREFERRED STOCK. 
INCOME REMAINING WILL BE AVAILABLE FOR GENERAL CORPORATE PURPOSES. 

FN11  THE NEW PREFERRED STOCK WILL HAVE A PAR VALUE OF $50 AND WILL
CARRY A DIVIDEND OF 5 PER CENT.  IT WILL BE NONCUMULATIVE UNTIL THE
RETIREMENT OF THE BONDS OF THE SAME SERIES EXCEPT TO THE EXTENT THAT
NET INCOME IS AVAILABLE FOR DIVIDENDS.  THEREAFTER IT WILL BE
CUMULATIVE. 

FN12  ALL OF THE NEW INCOME BONDS AND PREFERRED STOCK ARE TO BE
ISSUED TO THE PUBLIC HOLDERS OF UNION AND CONSUMERS BONDS. 

FN13  79,491 SHARES OF NEW COMMON WILL BE RESERVED FOR THE EXERCISE
OF WARRANTS ISSUED TO OLD COMMON STOCKHOLDERS; AN ADDITIONAL 60,280
SHARES OF NEW COMMON, FOR THE EXERCISE OF WARRANTS ATTACHED TO THE NEW
PREFERRED. 

FN14  IT IS APPARENT THAT THE MAJORITY OF THE NEW COMMON WILL BE HELD
BY THE OLD PREFERRED STOCKHOLDERS EVEN IF ALL WARRANTS ARE EXERCISED. 

FN15  SEE NOTES 3 AND 5, SUPRA. 

FN16  TWO OFFICERS AND ONE EX-EMPLOYEE.  THESE VALUATION FIGURES
INCLUDED THE PROPERTIES OF RELIANCE.  SEE NOTE 8, SUPRA. 

FN17  THE HEARINGS ON THE PLAN WERE HELD BEFORE A MASTER DURING
NOVEMBER, 1937. 

FN18  THIS AGREEMENT COVERED THE PROPERTIES OF RELIANCE AS WELL AS
UNION AND CONSUMERS.  BY A MODIFICATION MADE IN 1933 THE AGREEMENT WAS
TO EXPIRE IN FEBRUARY, 1938, CONSOLIDATED HAVING AN OPTION TO EXTEND
THE AGREEMENT FOR ANOTHER FIVE YEARS ON SPECIFIED NOTICE. 

FN19  THE AGREEMENT WAS MODIFIED IN 1933(BY TWO OFFICERS ACTING FOR
EACH OF THE FOUR COMPANIES) WHEREBY THE DEPRECIATION TO BE CREDITED TO
THE SUBSIDIARIES SHOULD BE CREDITED ONLY ON TERMINATION OF THE
AGREEMENT.  AT THAT TIME CONSOLIDATED WAS TO HAVE THE RIGHT, BY PAYING
A FIVE PER CENT PENALTY, TO PAY TWENTY-FIVE PER CENT OF THE AMOUNT OF
THE DEPRECIATION CREDIT IN TEN ANNUAL INSTALLMENTS AND THE BALANCE AT
THE END OF TEN YEARS FROM THE DATE OF TERMINATION.  SOME QUESTION HAS
BEEN RAISED AS TO THE PROPRIETY OF THAT MODIFICATION, A QUESTION ON
WHICH WE EXPRESS NO OPINION. 

FN20  CONSOLIDATED SEEMS TO ADMIT THAT THAT CLAIM IS VALID, AT LEAST
TO THE EXTENT OF NET CURRENT LIABILITIES AGGREGATING MORE THAN $250,000
AS OF JUNE 30, 1938. 

FN21  RESPONDENT POINTS OUT THAT EVEN ON THE BASIS OF A $3,300,000
VALUATION OF THE PROPERTIES OF UNION AND CONSUMERS DEPRECIATION,
DEPLETION AND OBSOLESCENCE CHARGES WOULD BE APPROXIMATELY $1,250,000. 

FN22  CONSOLIDATED MAINTAINS THAT THERE IS NO PRESENT CLAIM AGAINST
IT BECAUSE NO CLAIM EXISTS UNTIL TERMINATION OF THE OPERATING AGREEMENT
WHICH RAN UNTIL FEBRUARY 1938, WITH AN OPTION IN CONSOLIDATED TO EXTEND
IT FOR FIVE YEARS.  BUT IT DOES NOT ASSERT, NOR DOES THE RECORD SHOW,
THAT THE OPTION WAS EXERCISED.  BUT EVEN IF IT HAD BEEN, ONLY THE TIME
WHEN THE AMOUNTS ACCRUED WERE PAYABLE WOULD BE AFFECTED. 

FN23  FOR AN EQUALLY BROAD DEFINITION OF "CREDITOR" UNDER CH. X OF
THE CHANDLER ACT (52 STAT. 840) SEE SEC. 106(1) AND (4). 

FN24  THUS CONSOLIDATED ARGUES THAT UNDER THE OPERATING AGREEMENT THE
MACHINERY FOR AN APPRAISAL PROVIDED THEREIN MUST BE EMPLOYED.  YET
ASSUMING ARGUENDO THAT THAT IS TRUE, CONSOLIDATED WHICH HAS BEEN IN
POSSESSION AND CONTROL THROUGHOUT CANNOT RELY ON THE FAILURE TO HAVE AN
APPRAISAL AS A REASON FOR BLOCKING OR DELAYING ITS DUTY TO ACCOUNT. 

FN25  SUPRA, NOTE 10. 

FN26  SEC. 77B (F)(1). 

FN27  IN VIEW OF THE CONDITION OF THE RECORD RELATIVE TO THE VALUE OF
THE PROPERTIES AND THE FACT THAT THE ACCRUED INTEREST IS CANCELLED BY
THE PLAN, IT IS NOT PROFITABLE TO ATTEMPT A DETAILED DISCUSSION OF THE
DEFICIENCIES IN THE ALLEGED COMPENSATORY TREATMENT OF THE BONDHOLDERS. 
IT SHOULD, HOWEVER, BE NOTED AS RESPECTS THE WARRANTS ISSUED TO THE OLD
COMMON STOCKHOLDERS THAT THEY ADMITTEDLY HAVE NO EQUITY IN THE
ENTERPRISE.  ACCORDINGLY, IT SHOULD HAVE BEEN SHOWN THAT THERE WAS A
NECESSITY OF SEEKING NEW MONEY FROM THEM AND THAT THE PARTICIPATION
ACCORDED THEM WAS NOT MORE THAN REASONABLY EQUIVALENT TO THEIR
CONTRIBUTION.  KANSAS CITY TERMINAL RY. CO. V. CENTRAL UNION TRUST CO.,
SUPRA; CASE V. LOS ANGELES LUMBER PRODUCTS CO., SUPRA, PP. 121-122.  IN
THE LATTER CASE WE WARNED AGAINST THE DILUTION OF CREDITORS' RIGHTS BY
INADEQUATE CONTRIBUTIONS BY STOCKHOLDERS.  HERE THAT DILUTION TAKES A
RATHER OBVIOUS FORM IN VIEW OF THE LOWER PRICE AT WHICH THE
STOCKHOLDERS MAY EXERCISE THE WARRANTS.  WARRANTS EXERCISED BY THEM
WOULD DILUTE THE VALUE OF COMMON STOCK PURCHASED BY BONDHOLDERS DURING
THE SAME PERIOD.  FURTHERMORE, ON CONSOLIDATED'S ESTIMATE OF THE EQUITY
IN THE ENTERPRISE, THE VALUES OF THE NEW COMMON WOULD HAVE TO INCREASE
MANY FOLD TO REACH A VALUE WHICH EXCEEDS THE WARRANT PRICE BY THE
AMOUNT OF THE ACCRUED INTEREST. 
..END :






HELVERING V. LE GIERSE, 312 U.S. 531 


NO. 237.  ARGUED JANUARY 9, 10, 1941.  - DECIDED MARCH 3, 1941.  - 110
F.2D 734, REVERSED. 


1.  WITHIN THE MEANING OF SEC. 302(G) OF THE REVENUE ACT OF 1926 AS
AMENDED, AMOUNTS "RECEIVABLE AS INSURANCE" ARE AMOUNTS RECEIVABLE AS
THE RESULT OF TRANSACTIONS WHICH INVOLVED AT THE TIME OF THEIR
EXECUTION AN ACTUAL INSURANCE RISK.  P. 537. 

2.  RISK-SHIFTING AND RISK-DISTRIBUTION ARE ESSENTIALS OF A CONTRACT
OF LIFE INSURANCE.  P. 539. 

3.  A CONTRACT IN THE STANDARD FORM OF A LIFE INSURANCE POLICY,
CONTAINING THE USUAL PROVISIONS, INCLUDING THOSE FOR ASSIGNMENT OR
SURRENDER, WAS ISSUED TO A WOMAN OF EIGHTY YEARS OF AGE, WITHOUT
PHYSICAL EXAMINATION, FOR A SINGLE PREMIUM LESS THAN THE FACE OF THE
POLICY, TOGETHER WITH AN ANNUITY POLICY FOR ANOTHER PREMIUM CALLING FOR
ANNUAL PAYMENTS TO HER UNTIL HER DEATH ALTHOUGH BOTH POLICIES WERE, ON
THE FACE, SEPARATE CONTRACTS, NEITHER REFERRING TO THE OTHER, AND EACH
WAS TREATED AS INDEPENDENT IN THE MATTERS OF APPLICATION, COMPUTATION
OF PREMIUM, REPORT AND BOOK ENTRY OF PREMIUM PAYMENT, MAINTENANCE OF
RESERVE, ETC., THEY WERE ISSUED AT THE SAME TIME, AND THE MAKING OF THE
ANNUITY CONTRACT WAS A CONDITION TO THE ISSUANCE OF THE LIFE POLICY;
AND THE COMBINED EFFECT WAS SUCH THAT, IN CASE OF PREMATURE DEATH, THE
GAIN TO THE INSURANCE COMPANY UNDER ONE WOULD NEUTRALIZE ITS LOSS UNDER
THE OTHER.  HELD: 

(1)  THAT THE CONTRACTS MUST BE CONSIDERED TOGETHER.  P. 540. 

(2)  THEY CREATED NO INSURANCE RISK.  P. 541. 

ANY RISK THAT THE PREPAYMENT WOULD EARN LESS THAN THE AMOUNT PAID BY
THE INSURANCE COMPANY AS AN ANNUITY WAS AN INVESTMENT RISK, NOT AN
INSURANCE RISK. 

(3)  THE AMOUNT PAYABLE TO THE BENEFICIARY NAMED IN THE LIFE POLICY,
UPON THE DEATH OF THE "INSURED," WAS NOT IN THE SCOPE OF SEC. 302(G),
SUPRA, BUT WAS PROPERLY TAXED IN THE DECEDENT'S ESTATE UNDER SEC.
302(C) AS A TRANSFER TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR
AFTER DEATH.  P. 542. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. LE GIERSE ET AL.,
EXECUTORS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 625, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 39 B.T.A. 1134, REVERSING A DEFICIENCY
ASSESSMENT OF ESTATE TAX. 

THE LIFE INSURANCE POLICY AND THE ANNUITY WERE SEPARATE, DISTINCT,
COMPLETE CONTRACTS.  FOR EACH THERE WAS A SEPARATE APPLICATION AND A
SEPARATE CONSIDERATION.  REGULAR, STANDARD FORMS WERE USED.  NEITHER
REFERRED TO THE OTHER DIRECTLY OR INDIRECTLY; EITHER COULD HAVE BEEN
SURRENDERED WITHOUT AFFECTING THE COMPANY'S LIABILITY UNDER THE OTHER. 
THE COMPANY REGARDED THE TRANSACTIONS AS SEPARATE AND DISTINCT AND THEY
WERE SO REPORTED TO THE COMMISSIONER OF INSURANCE OF THE STATE OF
CONNECTICUT, AS REQUIRED BY LAW.  SEPARATE RECEIPTS WERE ISSUED TO THE
DECEDENT BY THE COMPANY COVERING PAYMENT RECEIVED BY IT FOR EACH
CONTRACT.  THE CONSIDERATION, OR PREMIUM, FOR EACH CONTRACT WAS
COMPUTED ON AN ACTUARIAL BASIS AND IN ACCORDANCE WITH THE COMPANY'S
REGULAR SCHEDULE OF RATES.  IN OTHER WORDS, IN COMPUTING THE SINGLE
PREMIUM CHARGED FOR THE LIFE INSURANCE POLICY, NO ADJUSTMENT OR
ALLOWANCE WAS MADE FOR THE ANNUITY PREMIUM, AND IN COMPUTING THE
ANNUITY PREMIUM, NO ADJUSTMENT OR ALLOWANCE WAS MADE FOR THE INSURANCE
PREMIUM.  THE AMOUNT RECEIVED BY THE COMPANY AS A SINGLE PREMIUM FOR
THE INSURANCE POLICY WAS CREDITED TO ITS INSURANCE RESERVE AND THE
AMOUNT RECEIVED BY IT FOR THE ANNUITY, TO ITS ANNUITY RESERVE.  ALL THE
LEGAL INCIDENTS OF OWNERSHIP ENJOYED BY THE OWNER OF ANY ORDINARY LIFE
INSURANCE POLICY WERE VESTED IN THE DECEDENT WITH RESPECT TO THE POLICY
HERE IN QUESTION AND SHE COULD HAVE EXERCISED ANY OR ALL OF THEM
WITHOUT REFERENCE TO THE ANNUITY CONTRACT. 

ALL THE EVIDENCE POINTS TO AN INTENTION OF THE PARTIES TO ENTER INTO
A LIFE INSURANCE AND AN ANNUITY CONTRACT, SEPARATE, DISTINCT AND
INDEPENDENT OF EACH OTHER.  WILLISTON, CONTRACTS, 2D ED., SEC. 628. 

EVEN WHERE THE CONTRACTING PARTIES COMBINE ALL THEIR PROMISES IN ONE
DOCUMENT, IF THE AGREEMENT SETS FORTH SEPARATE FEATURES, CLEARLY
SEVERABLE, EACH FEATURE MUST BE GIVEN ITS PROPER APPLICATION. 
EQUITABLE LIFE ASSUR.  SOCIETY V. DEEM, 91 F.2D 569, 575; CONNECTICUT
GENERAL LIFE INS. CO. V. MCCLELLAN, 94 F.2D 445, 446; DOWNEY V. GERMAN
ALLIANCE INS. CO., 252 F. 701, 703, 704; LEGG V. ST. JOHN, 296 U.S.
489, 490-495; BODINE V. COMMISSIONER, 103 F.2D 982, 985.  DIST'G
PEARSON V. MCGRAW, 308 U.S. 313. 

CONTRACTS EXECUTED AS A CONDITION PRECEDENT TO, OR IN CONJUNCTION
WITH, OTHER CONTRACTS ARE COMMONPLACE IN BUSINESS TRANSACTIONS.  WITH
RESPECT TO THE ISSUANCE OF THE ANNUITY AS A CONDITION PRECEDENT TO THE
ISSUANCE OF THE LIFE INSURANCE POLICY, WE THINK THAT THE COURT BELOW
COVERED THE POINT SUCCINCTLY WHEN IT SAID:  "THE FACT THAT SHE COULD
NOT HAVE GOTTEN THAT POLICY UNLESS SHE HAD ALSO BOUGHT AN ANNUITY
CONTRACT DOES NOT CHANGE THE CHARACTER OF WHAT SHE GOT." 

THE DECEDENT'S AGE AND THE FACT THAT SHE WAS NOT REQUIRED TO TAKE A
PHYSICAL EXAMINATION ARE IN NO WAY MATERIAL TO THE ISSUES. 

WE SHOULD HESITATE TO ACCEPT ANY DEFINITION OF THE OFTUSED TERM
"INSURANCE RISK."  WHERE INSURANCE RISK LEAVES OFF AND INVESTMENT RISK
BEGINS IS ALSO DIFFICULT TO DETERMINE.  FOR EXAMPLE, WE KNOW THAT THE
INVESTMENT ELEMENT IS OF MINOR CONSIDERATION IN THE LOW PREMIUM TERM
CONTRACT, WHEREAS IT BECOMES A VERY IMPORTANT FACTOR IN THE COSTLY
SINGLE PREMIUM ENDOWMENT CONTRACT. 

IF THE DECEDENT HAD SURRENDERED HER LIFE INSURANCE POLICY AT THE END
OF THE FIRST YEAR, A LOSS OR A GAIN TO THE COMPANY ON THE TWO CONTRACTS
WOULD DEPEND ALMOST ENTIRELY ON HOW LONG THE DECEDENT LIVED
THEREAFTER.  THE POSSIBILITY OF SUCH A LOSS UNDER SUCH CIRCUMSTANCES
CLEARLY EXISTED AT THE TIME THE TWO CONTRACTS WERE ISSUED. 

THE FACT THAT THE COMPANY SOUGHT TO UNDERWRITE THE RISK BY DIFFERENT
MEANS THAN IT ORDINARILY USED IN UNDERWRITING LIFE INSURANCE POLICIES
DOES NOT MAKE THE POLICY SOMETHING OTHER THAN LIFE INSURANCE.  THERE IS
NOTHING IN THE EXEMPTING STATUTE WHICH REQUIRES THAT THE INSURANCE
PROCEEDS BE RECEIVABLE FROM A PARTICULAR KIND OF LIFE INSURANCE
CONTRACT, OR THAT THE POLICY BE WRITTEN IN ANY PARTICULAR WAY OR
CONFORM TO ANY PARTICULAR STANDARD, OR THAT IT BE ISSUED ONLY AFTER A
PHYSICAL EXAMINATION OF THE INSURED, OR THAT IT BE WRITTEN ACCORDING TO
ANY SPECIFIC GROUP OF UNDERWRITING PRINCIPLES.  THE STATUTE DOES NOT
PRECLUDE THE EXEMPTION ON ANY OF THESE GROUNDS, AND EXPRESSES NO
CONCERN WITH ANY ACTION THE INSURANCE COMPANY MAY TAKE TO RELIEVE ITS
UNDERWRITING PROBLEMS OR TO MINIMIZE THE RISK IN PARTICULAR CASES. 

FROM A STANDPOINT OF UNDERWRITING, THE REASON THE INSURANCE COMPANY
HERE WOULD NOT HAVE ISSUED THE LIFE INSURANCE POLICY TO THE DECEDENT
WITHOUT THE ANNUITY WAS NOT BECAUSE OF HER ADVANCED AGE, NOT BECAUSE
SHE DID NOT PASS A PHYSICAL EXAMINATION, BUT BECAUSE IT WOULD HAVE BEEN
DIFFICULT TO GET A SUFFICIENT NUMBER OF PERSONS OF HER AGE TO APPLY FOR
SIMILAR POLICIES AND THUS BE BROUGHT INTO THE BROAD AVERAGE FOR
UNDERWRITING PURPOSES.  SINCE IT WAS IMPRACTICAL TO SELL INSURANCE TO A
LARGE CLASS OF THE AGE OF DECEDENT, THE COMPANY ACCEPTED IN LIEU OF A
PHYSICAL EXAMINATION THE ISSUANCE OF THE LIFE ANNUITY. 

PETITIONER WOULD ARGUE THAT IF THIS DECEDENT HAD BEEN FIFTY YEARS OF
AGE INSTEAD OF EIGHTY AND HAD VOLUNTARILY PURCHASED THE ANNUITY ALONG
WITH THE POLICY, SHE WOULD HAVE RECEIVED NEITHER A LIFE INSURANCE
POLICY NOR AN ANNUITY BUT WOULD HAVE RECEIVED INSTEAD ONE "INVESTMENT
CONTRACT." 

INSURANCE POLICIES SHOULD NOT BE TREATED AS INTER VIVOS TRANSFERS
AKIN TO TESTAMENTARY DISPOSITIONS.  THERE IS NO INDICATION WHATEVER
THAT SUCH WAS THE INTENTION OF CONGRESS IN ENACTING SEC. 302(C) OR SEC.
302(G).  HELVERING V. HALLOCK, 309 U.S. 106, AND KLEIN V. UNITED
STATES, 283 U.S. 231, ARE INAPPLICABLE. 

MOST FORMS OF LIFE INSURANCE PROVIDE SOME SORT OF CASH VALUE WHICH IS
IN ITSELF AN INVESTMENT FEATURE.  IT IS COMMON KNOWLEDGE THAT LIFE
INSURANCE IS FREQUENTLY PURCHASED FOR INVESTMENT PURPOSES. 

THE CONTRACT IN QUESTION PRESENTS THE ESSENTIAL REQUISITES OF LIFE
INSURANCE.  FOR A STIPULATED CONSIDERATION THE COMPANY UNDERTOOK TO
INDEMNIFY THE BENEFICIARY AGAINST LOSS BY A SPECIFIED CONTINGENCY,
PERIL OR RISK.  THAT CONTINGENCY WAS THE DEATH OF THE INSURED, THIS
DECEDENT.  AND THE DEATH OF THE DECEDENT WAS THE SOLE CONTINGENCY FOR
THE PAYMENT OF THE PRINCIPAL AMOUNT OF THE POLICY.  THE FACT THAT AN
ANNUITY CONTRACT IMPOSING ENTIRELY DIFFERENT OBLIGATIONS ON THE COMPANY
WAS ISSUED AT THE SAME TIME DOES NOT MAKE THE LIFE INSURANCE CONTRACT
SOMETHING OTHER THAN LIFE INSURANCE. 

THE INSTANT CASE IS CLEARLY DISTINGUISHABLE FROM THE "DEPOSIT
ARRANGEMENT" CASES.  OLD COLONY TRUST CO. V. COMMISSIONER, 102 F.2D
380; STATE EX REL. THORNTON V. PROBATE COURT, 186 MINN. 351. 

THE HISTORY OF THE STATUTE INDICATES NO INTENTION ON THE PART OF
CONGRESS TO RESTRICT THE EXEMPTION TO PROCEEDS OF CERTAIN TYPES OF
INSURANCE CONTRACTS. 

THE CONTRACTS IN QUESTION WERE ENTERED INTO BY THE DECEDENT NEITHER
IN CONTEMPLATION OF DEATH NOR AS A PLAN TO EVADE OR EVEN AVOID THE
PAYMENT OF TAXES. 

THE BOARD OF TAX APPEALS FOUND AS A MATTER OF FACT AND HELD AS A
MATTER OF LAW THAT THE PROCEEDS WERE RECEIVED BY THE BENEFICIARY "AS
INSURANCE" WITHIN THE MEANING OF THE EXEMPTING STATUTE.  SUCH FINDING
WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND SHOULD NOT BE DISTURBED ON
REVIEW.  COLORADO NATIONAL BANK V. COMMISSIONER, 305 U.S. 23, 27;
HELVERING V. RANKIN, 295 U.S. 123, 131. 

THE PURCHASE OF A SINGLE PREMIUM LIFE INSURANCE POLICY IS NOT A
"TRANSFER" WITHIN THE MEANING OF ANY OF THE PROVISIONS OF SEC. 302(C)
OF THE REVENUE ACT OF 1926. 

THE PLAIN LANGUAGE OF THE STATUTE GRANTING THE EXEMPTION TO LIFE
INSURANCE PROCEEDS SHOULD NOT BE LIMITED BY IMPLICATION TO INSURANCE
ISSUED UNDER CERTAIN CONDITIONS.  GOULD V. GOULD, 245 U.S. 151, 153;
UNITED STATES V. MERRIAM, 263 U.S. 179, 187-188; BURNET V. NIAGARA
BREWING CO., 282 U.S. 648, 654. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

LESS THAN A MONTH BEFORE HER DEATH IN 1936, DECEDENT, AT THE AGE OF
80, EXECUTED TWO CONTRACTS WITH THE CONNECTICUT GENERAL LIFE INSURANCE
CO. ONE WAS AN ANNUITY CONTRACT IN STANDARD FORM ENTITLING DECEDENT TO
ANNUAL PAYMENTS OF $589.80 AS LONG AS SHE LIVED.  THE CONSIDERATION
STATED FOR THIS CONTRACT WAS $4,179.  THE OTHER CONTRACT WAS CALLED A
"SINGLE PREMIUM LIFE POLICY - NON PARTICIPATING" AND PROVIDED FOR A
PAYMENT OF $25,000 TO DECEDENT'S DAUGHTER, RESPONDENT LE GIERSE, AT
DECEDENT'S DEATH.  THE PREMIUM SPECIFIED WAS $22,946.  DECEDENT PAID
THE TOTAL CONSIDERATION, $27,125, AT THE TIME THE CONTRACTS WERE
EXECUTED.  SHE WAS NOT REQUIRED TO PASS A PHYSICAL EXAMINATION OR TO
ANSWER THE QUESTIONS A WOMAN APPLICANT NORMALLY MUST ANSWER. 

THE "INSURANCE" POLICY WOULD NOT HAVE BEEN ISSUED WITHOUT THE ANNUITY
CONTRACT, BUT IN ALL FORMAL RESPECTS THE TWO WERE TREATED AS DISTINCT
TRANSACTIONS.  NEITHER CONTRACT REFERRED TO THE OTHER.  INDEPENDENT
APPLICATIONS WERE FILED FOR EACH.  NEITHER PREMIUM WAS COMPUTED WITH
REFERENCE TO THE OTHER.  PREMIUM PAYMENTS WERE REPORTED SEPARATELY AND
ENTERED IN DIFFERENT ACCOUNTS ON THE COMPANY'S BOOKS.  SEPARATE
RESERVES WERE MAINTAINED FOR INSURANCE AND ANNUITIES.  EACH CONTRACT
WAS IN STANDARD FORM.  THE "INSURANCE" POLICY CONTAINED THE USUAL
PROVISIONS FOR SURRENDER, ASSIGNMENT, OPTIONAL MODES OF SETTLEMENT,
ETC. 

UPON DECEDENT'S DEATH, THE FACE VALUE OF THE "INSURANCE" CONTRACT
BECAME PAYABLE TO RESPONDENT LE GIERSE, THE BENEFICIARY.  THEREAFTER, A
FEDERAL ESTATE TAX RETURN WAS FILED WHICH EXCLUDED FROM DECEDENT'S
GROSS ESTATE THE PROCEEDS OF THE "INSURANCE" POLICY.  THE COMMISSIONER
NOTIFIED RESPONDENTS BANKERS TRUST CO. AND LE GIERSE, AS EXECUTORS OF
DECEDENT'S ESTATE, THAT HE PROPOSED TO INCLUDE THE PROCEEDS OF THIS
POLICY IN THE GROSS ESTATE AND TO ASSESS A DEFICIENCY.  SUIT IN THE
BOARD OF TAX APPEALS FOLLOWED, AND THE COMMISSIONER'S ACTION WAS
REVERSED.  39 B.T.A. 1134.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  110
F.2D 734.  WE BROUGHT THE CASE HERE BECAUSE OF CONFLICT WITH
COMMISSIONER V. KELLER'S ESTATE, 113 F.2D 833, AND HELVERING V. TYLER,
111 F.2D 422.  311 U.S. 625. 

THE ULTIMATE QUESTION IS WHETHER THE "INSURANCE" PROCEEDS MAY BE
INCLUDED IN DECEDENT'S GROSS ESTATE. 

STAT. 169, 279; 48 STAT. 680, 752) PROVIDES:  "THE VALUE OF THE GROSS
ESTATE OF THE DECEDENT SHALL BE DETERMINED BY INCLUDING THE VALUE AT
THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR PERSONAL, TANGIBLE OR
INTANGIBLE  ...  - (G)  TO THE EXTENT OF THE AMOUNT RECEIVABLE BY THE
EXECUTOR AS INSURANCE UNDER POLICIES TAKEN OUT BY THE DECEDENT UPON HIS
OWN LIFE; AND TO THE EXTENT OF THE EXCESS OVER $40,000 OF THE AMOUNT
RECEIVABLE BY ALL OTHER BENEFICIARIES AS INSURANCE UNDER POLICIES TAKEN
OUT BY THE DECEDENT UPON HIS OWN LIFE."  THUS THE BASIC QUESTION IS
WHETHER THE AMOUNTS RECEIVED HERE ARE AMOUNTS "RECEIVABLE AS INSURANCE"
WITHIN THE MEANING OF SEC. 302(G). 

CONVENTIONAL AIDS TO CONSTRUCTION ARE OF LITTLE ASSISTANCE HERE. 
OF 1918 AS SEC. 402(F).  40 STAT. 1057, 1098.  IT HAS NEVER BEEN
CHANGED.  FN1  NONE OF THE ACTS HAS EVER DEFINED "INSURANCE."  TREASURY
REGULATIONS, INTERPRETING THE ORIGINAL PROVISION, STATED SIMPLY:  "THE
TERM 'INSURANCE' REFERS TO LIFE INSURANCE OF EVERY DESCRIPTION,
INCLUDING DEATH BENEFITS PAID BY FRATERNAL BENEFICIAL SOCIETIES,
OPERATING UNDER THE LODGE SYSTEM."  TREASURY REGULATIONS NO. 37, 1921
EDITION, P. 23.  THIS STATEMENT HAS NEVER BEEN AMPLIFIED.  FN2  THE
COMMITTEE REPORT ACCOMPANYING THE REVENUE ACT OF 1918 MERELY NOTED THAT
THE PROVISION TAXING INSURANCE RECEIVABLE BY THE EXECUTOR CLARIFIED
EXISTING LAW, AND THAT THE PROVISION TAXING INSURANCE IN EXCESS OF
$40,000 RECEIVABLE BY SPECIFIC BENEFICIARIES WAS INSERTED TO PREVENT
TAX EVASION.  HOUSE REPORT NO. 767, 65TH CONG., 2D SESS., P. 22.  FN3
SUBSEQUENT COMMITTEE REPORTS DO NOT MENTION SEC. 302(G).  TRANSCRIPTS
OF COMMITTEE HEARINGS IN 1918 AND SINCE ARE EQUALLY UNINFORMATIVE. 
FN4 

NECESSARILY, THEN, THE LANGUAGE AND THE APPARENT PURPOSE OF SEC.
302(G) ARE VIRTUALLY THE ONLY BASES FOR DETERMINING WHAT CONGRESS
INTENDED TO BRING WITHIN THE SCOPE OF THE PHRASE "RECEIVABLE AS
INSURANCE."  IN FACT, IN USING THE TERM "INSURANCE" CONGRESS HAS
IDENTIFIED THE CHARACTERISTIC THAT DETERMINES WHAT TRANSACTIONS ARE
ENTITLED TO THE PARTIAL EXEMPTION OF SEC. 302(G). 

WE THINK THE FAIR IMPORT OF SUBSECTION (G) IS THAT THE AMOUNTS MUST
BE RECEIVED AS THE RESULT OF A TRANSACTION WHICH INVOLVED AN ACTUAL
"INSURANCE RISK" AT THE TIME THE TRANSACTION WAS EXECUTED. 
HISTORICALLY AND COMMONLY INSURANCE INVOLVES RISK-SHIFTING AND RISK
DISTRIBUTING.  THAT LIFE INSURANCE IS DESIRABLE FROM AN ECONOMIC AND
SOCIAL STANDPOINT AS A DEVICE TO SHIFT AND DISTRIBUTE RISK OF LOSS FROM
PREMATURE DEATH IS UNQUESTIONABLE.  THAT THESE ELEMENTS OF RISK
SHIFTING AND RISK-DISTRIBUTING ARE ESSENTIAL TO A LIFE INSURANCE
CONTRACT IS AGREED BY COURTS AND COMMENTATORS.  SEE FOR EXAMPLE:
RITTER V. MUTUAL LIFE INS. CO., 169 U.S. 139; IN RE WALSH, 19 F.SUPP. 
567; GUARANTY TRUST CO. V. COMMISSIONER, 16 B.T.A. 314; ACKERMAN V.
COMMISSIONER, 15 B.T.A. 635; COUCH, CYCLOPEDIA OF INSURANCE, VOL. I,
SEC. 61; VANCE, INSURANCE, SECS. 1-3; COOLEY, BRIEFS ON INSURANCE, 2D
EDITION, VOL. I, P. 114; HUEBNER, LIFE INSURANCE, CH. 1.  ACCORDINGLY,
IT IS LOGICAL TO ASSUME THAT WHEN CONGRESS USED THE WORDS "RECEIVABLE
AS INSURANCE" IN SEC. 302(G), IT CONTEMPLATED AMOUNTS RECEIVED PURSUANT
TO A TRANSACTION POSSESSING THESE FEATURES.  COMMISSIONER V. KELLER'S
ESTATE, SUPRA; HELVERING V. TYLER, SUPRA; OLD COLONY TRUST CO. V.
COMMISSIONER, 102 F.2D 380; ACKERMAN V. COMMISSIONER, SUPRA. 
ANALYSIS OF THE APPARENT PURPOSE OF THE PARTIAL EXEMPTION GRANTED IN
SEC. 302(G) STRENGTHENS THE ASSUMPTION THAT CONGRESS USED THE WORD
"INSURANCE" IN ITS COMMONLY ACCEPTED SENSE.  IMPLICIT IN THIS PROVISION
IS ACKNOWLEDGMENT OF THE FACT THAT USUALLY INSURANCE PAYABLE TO
SPECIFIC BENEFICIARIES IS DESIGNED TO SHIFT TO A GROUP OF INDIVIDUALS
THE RISK OF PREMATURE DEATH OF THE ONE UPON WHOM THE BENEFICIARIES ARE
DEPENDENT FOR SUPPORT.  INDEED, THE PITH OF THE EXEMPTION IS PARTICULAR
PROTECTION OF CONTRACTS AND THEIR PROCEEDS INTENDED TO GUARD AGAINST
JUST SUCH A RISK.  SEE COMMISSIONER V. KELLER'S ESTATE, SUPRA; UNITED
STATES TRUST CO. V. SEARS, 29 F.SUPP.  643; HUGHES, FEDERAL DEATH TAX,
P. 91; COMMENT, 38 MICH. L. REV. 526, 528; COMPARE CHASE NATIONAL BANK
V. UNITED STATES, 28 F.SUPP.  947; IN RE WALSH, SUPRA; MOSKOWITZ V.
DAVIS, 68 F.2D 818.  HENCE, THE NEXT QUESTION IS WHETHER THE
TRANSACTION IN SUIT IN FACT INVOLVED AN "INSURANCE RISK" AS OUTLINED
ABOVE. 

WE CANNOT FIND SUCH AN INSURANCE RISK IN THE CONTRACTS BETWEEN
DECEDENT AND THE INSURANCE COMPANY. 

THE TWO CONTRACTS MUST BE CONSIDERED TOGETHER.  TO SAY THEY ARE
DISTINCT TRANSACTIONS IS TO IGNORE ACTUALITY, FOR IT IS CONCEDED ON ALL
SIDES AND WAS FOUND AS A FACT BY THE BOARD OF TAX APPEALS THAT THE
"INSURANCE" POLICY WOULD NOT HAVE BEEN ISSUED WITHOUT THE ANNUITY
CONTRACT.  FAILURE, EVEN STUDIOUS FAILURE, IN ONE CONTRACT TO REFER TO
THE OTHER CANNOT BE CONTROLLING.  MOREOVER, AUTHORITY FOR SUCH
CONSIDERATION IS NOT WANTING, HOWEVER UNREALISTIC THE DISTINCTION
BETWEEN FORM AND SUBSTANCE MAY BE.  COMMISSIONER V. KELLER'S ESTATE,
SUPRA; HELVERING V. TYLER, SUPRA.  SEE WILLISTON, CONTRACTS, VOL. III,
SEC. 628; PAUL, STUDIES IN FEDERAL TAXATION, 2D SERIES, P. 218; COMPARE
PEARSON V. MCGRAW, 308 U.S. 313.  FN5 

CONSIDERED TOGETHER, THE CONTRACTS WHOLLY FAIL TO SPELL OUT ANY
ELEMENT OF INSURANCE RISK.  IT IS TRUE THAT THE "INSURANCE" CONTRACT
LOOKS LIKE AN INSURANCE POLICY, CONTAINS ALL THE USUAL PROVISIONS OF
ONE, AND COULD HAVE BEEN ASSIGNED OR SURRENDERED WITHOUT THE ANNUITY. 
CERTAINLY THE MERE PRESENCE OF THE CUSTOMARY PROVISIONS DOES NOT CREATE
RISK, AND THE FACT THAT THE POLICY COULD HAVE BEEN ASSIGNED IS
IMMATERIAL SINCE, NO MATTER WHO HELD THE POLICY AND THE ANNUITY, THE
TWO CONTRACTS, RELATING TO THE LIFE OF THE ONE TO WHOM THEY WERE
ORIGINALLY ISSUED, STILL COUNTERACTED EACH OTHER.  IT MAY WELL BE TRUE
THAT IF ENOUGH PEOPLE OF DECEDENT'S AGE WANTED SUCH A POLICY IT WOULD
BE ISSUED WITHOUT THE ANNUITY, OR THAT IF THE INSTANT POLICY HAD BEEN
SURRENDERED A RISK WOULD HAVE ARISEN.  IN EITHER EVENT THE ESSENTIAL
RELATION BETWEEN THE TWO PARTIES WOULD BE DIFFERENT FROM WHAT IT IS
HERE.  THE FACT REMAINS THAT ANNUITY AND INSURANCE ARE OPPOSITES; IN
THIS COMBINATION THE ONE NEUTRALIZES THE RISK CUSTOMARILY INHERENT IN
THE OTHER.  FROM THE COMPANY'S VIEWPOINT, INSURANCE LOOKS TO LONGEVITY,
ANNUITY TO TRANSIENCY.  SEE COMMISSIONER V. KELLER'S ESTATE, SUPRA;
HELVERING V. TYLER, SUPRA; OLD COLONY TRUST CO. V. COMMISSIONER, SUPRA;
CARROLL V. EQUITABLE LIFE ASSUR.  SOC., 9 F.SUPP.  223; NOTE, 49 YALE
L.J. 946; COHEN, ANNUITIES AND TRANSFER TAXES, 7 KAN. B.A.J. 139. 

HERE THE TOTAL CONSIDERATION WAS PREPAID AND EXCEEDED THE FACE VALUE
OF THE "INSURANCE" POLICY.  THE EXCESS FINANCED LOADING AND OTHER
INCIDENTAL CHARGES.  ANY RISK THAT THE PREPAYMENT WOULD EARN LESS THAN
THE AMOUNT PAID TO RESPONDENT AS AN ANNUITY WAS AN INVESTMENT RISK
SIMILAR TO THE RISK ASSUMED BY A BANK; IT WAS NOT AN INSURANCE RISK AS
EXPLAINED ABOVE.  IT FOLLOWS THAT THE SUMS PAYABLE TO A SPECIFIC
BENEFICIARY HERE ARE NOT WITHIN THE SCOPE OF SEC. 302(G).  THE ONLY
REMAINING QUESTION IS WHETHER THEY ARE TAXABLE. 

WE HOLD THAT THEY ARE TAXABLE UNDER SEC. 302(C) OF THE REVENUE ACT OF
1926, AS AMENDED, AS A TRANSFER TO TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER DEATH.  SEE HELVERING V. TYLER, SUPRA; OLD COLONY
TRUST CO. V. COMMISSIONER, SUPRA; KERNOCHAN V. UNITED STATES, 29
F.SUPP.  860; GUARANTY TRUST CO. V. COMMISSIONER, SUPRA; COMPARE,
GAITHER V. MILES, 268 F. 692; COMMENT, 38 MICH. L. REV. 526; COMMENT,
32 ILL. L. REV. 223. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED. 

FN1  ACT OF 1921:  42 STAT. 227, 279; ACT OF 1924:  43 STAT. 253, 305;
ACT OF 1926:  44 STAT. 9, 71; CODE OF 1939:  53 STAT. 1, 122. 

FN2  REGULATIONS NO. 63, P. 26; REGULATIONS NO. 68, P. 31;
REGULATIONS NO. 70, 1926 EDITION, P. 30; REGULATIONS NO. 70, 1929
EDITION, P. 33; REGULATIONS NO. 80, P. 62. 

FN3  "...  (INSURANCE PAYABLE TO SPECIFIC BENEFICIARIES DOES) NOT
FALL WITHIN THE EXISTING PROVISIONS DEFINING GROSS ESTATE.  IT HAS BEEN
BROUGHT TO THE ATTENTION OF THE COMMITTEE THAT WEALTHY PERSONS HAVE AND
NOW ANTICIPATE RESORTING TO THIS METHOD OF DEFEATING THE ESTATE TAX. 
AGENTS OF INSURANCE COMPANIES HAVE OPENLY URGED PERSONS OF WEALTH TO
TAKE OUT ADDITIONAL INSURANCE PAYABLE TO SPECIFIC BENEFICIARIES FOR THE
REASON THAT SUCH INSURANCE WOULD NOT BE INCLUDED IN THE GROSS ESTATE. 
A LIBERAL EXEMPTION OF $40,000 HAS BEEN INCLUDED AND IT SEEMS NOT
UNREASONABLE TO REQUIRE THE INCLUSION OF AMOUNTS IN EXCESS OF THIS
SUM.  ID., P. 22. 

THE SAME COMMENT APPEARS IN SENATE REPORT NO. 617, 65TH CONG., 3D
SESS., P. 42. 

FN4  THE CURIOUS CONSISTENCY AND INADEQUACY OF SEC. 302(G) HAVE NOT
ESCAPED NOTICE.  SEE PAUL, LIFE INSURANCE AND THE FEDERAL ESTATE TAX,
52 HARV. L. REV. 1037; PAUL, STUDIES IN FEDERAL TAXATION, 3D SERIES, P.
351; UNITED STATES TRUST CO. V. SEARS, 29 F.SUPP.  643, 650. 

FN5  LEGG V. ST. JOHN, 296 U.S. 489, IS NOT TO THE CONTRARY.  THERE
NOTHING INDICATED THAT THE ONE CONTRACT WOULD NOT HAVE BEEN ISSUED
WITHOUT THE OTHER; THERE WAS NO NECESSARY CONNECTION BETWEEN THE TWO. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS THINK THE JUDGMENT SHOULD
BE AFFIRMED FOR THE REASONS STATED IN THE OPINION OF THE CIRCUIT COURT
OF APPEALS. 
..END :













ESTATE OF KELLER V. COMM'R, 312 U.S. 543 


NO. 371.  ARGUED JANUARY 10, 1941.  - DECIDED MARCH 3, 1941.  - 113 F.2D
833, AFFIRMED. 


1.  DECIDED IN PART UPON THE AUTHORITY OF HELVERING V. LE GIERSE,
ANTE, P. 531.  P. 543. 

2.  THAT A PHYSICAL EXAMINATION WAS NOT REQUIRED IS INCONCLUSIVE AS
TO THE NON-EXISTENCE OF AN "INSURANCE RISK."  P. 544. 

3.  THAT THE PREMIUM MIGHT NOT EARN ENOUGH TO COVER PROFITABLY THE
ANNUITY PAYABLE TO THE DECEDENT, OR THAT THERE WAS A MISCALCULATION OF
THE PROPER TOTAL CONSIDERATION, DOES NOT IN THIS CASE ESTABLISH THE
EXISTENCE OF AN "INSURANCE RISK."  P. 544. 

ESTATE OF KELLER ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 311 U.S. 630, TO REVIEW A JUDGMENT REVERSING A DECISION
OF THE BOARD OF TAX APPEALS, 39 B.T.A. 1047, DISAPPROVING OF A
DEFICIENCY ESTATE TAX ASSESSMENT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS COMPANION TO HELVERING V. LE GIERSE, ANTE, P. 531.  IN
ALL MATERIAL RESPECTS THE FACTS ARE ALIKE EXCEPT FOR THE DIFFERENCES TO
BE NOTED.  HERE THE ANNUITY CONTRACT PROVIDED FOR ANNUAL PAYMENTS OF
$390.84 AND COST DECEDENT $3,258.20.  THE "INSURANCE" POLICY STIPULATED
FOR PAYMENT OF $20,000 TO DECEDENT'S DAUGHTER AT DECEDENT'S DEATH, AND
THE SINGLE PREMIUM WAS $17,941.80.  DECEDENT WAS 74 AT THE TIME THE
CONTRACT WAS EXECUTED AND DIED ABOUT TWO YEARS LATER.  PROCEEDING ON
THE SAME THEORY AS IN THE LE GIERSE CASE, THE COMMISSIONER ASSESSED A
DEFICIENCY IN THE FEDERAL ESTATE TAX WHICH THE BOARD OF TAX APPEALS
REVERSED.  39 B.T.A. 1047.  THE CIRCUIT COURT OF APPEALS IN TURN
REVERSED THE BOARD OF TAX APPEALS.  113 F.2D 833.  THE CASE IS HERE
BECAUSE OF CONFLICT WITH THE LE GIERSE CASE (110 F.2D 734). 

PETITIONERS CONTEND THAT THIS CASE IS DISTINGUISHABLE FROM THE LE
GIERSE CASE BECAUSE HERE THE INSURANCE COMPANY FOUND THAT THE TOTAL
CONSIDERATION FOR THE TWO CONTRACTS, WHICH WAS 106% OF THE FACE VALUE
OF THE POLICY, WAS INADEQUATE.  THEY POINT OUT THAT THE RATE FOR THIS
COMBINATION OF CONTRACTS WAS LATER INCREASED TO 108% AND FINALLY TO
110%.  FURTHER, THEY CONTEND THAT ABSENCE OF PHYSICAL EXAMINATION DOES
NOT ESTABLISH ABSENCE OF RISK, AND THAT THE BOARD OF TAX APPEALS FOUND
THAT THERE WAS "SOME" RISK TO THE INSURANCE COMPANY. 

WE FIND THE DISTINCTION INSUFFICIENT TO REQUIRE A DIFFERENT RESULT. 

IT IS NOT ENOUGH TO SHOW THAT THE INSURANCE COMPANY ASSUMED "SOME"
RISK.  A BANK ASSUMES A RISK WHEN IT ACCEPTS A DEPOSITOR'S FUNDS AND
INVESTS THEM.  THE INVESTMENT MAY PROVE TO BE AN UNSAFE ONE, OR THE
BANK MAY HAVE AGREED TO PAY THE DEPOSITOR A HIGHER RATE OF INTEREST
THAN IT CAN PROFITABLY EARN ON THE FUNDS IT INVESTS.  INDISPUTABLY THIS
IS A RISK.  BUT IT IS NOT AN INSURANCE RISK IN THE SENSE EXPLAINED IN
THE LE GIERSE CASE.  THAT THE INSURANCE COMPANY SUBSEQUENTLY CHANGED
THE TOTAL CHARGE FOR THIS PARTICULAR COMBINATION OF CONTRACTS BECAUSE
IT WAS UNPROFITABLE DOES NOT ESTABLISH THE EXISTENCE OF AN INSURANCE
RISK.  RATHER, IT ILLUSTRATES STRIKINGLY THE INTERRELATION OF THE TWO
AGREEMENTS AND EMPHASIZES THE EFFORT OF THE COMPANY TO REMOVE ALL
POSSIBLE INVESTMENT RISK. 

ABSENCE OF A PHYSICAL EXAMINATION MAY WELL BE INCONCLUSIVE AS TO THE
EXISTENCE OF AN INSURANCE RISK.  FOR EXAMPLE, SOME COMPANIES DO NOT
REQUIRE SUCH AN EXAMINATION FOR GROUP INSURANCE.  BUT THERE THE RISK AS
TO ONE IS DISTRIBUTED AMONG THE GROUP, AN INSURANCE RISK SQUARELY
WITHIN THE DEFINITION STATED IN THE LE GIERSE CASE.  HERE THE ANNUITY
ISSUED WITH THE POLICY DID MORE THAN SUBSTITUTE FOR A PHYSICAL
EXAMINATION.  IT REMOVED THE NECESSITY FOR ANY RISK DISTRIBUTION AND
COMPLETELY COUNTERVAILED A RISK OTHERWISE ASSUMED IN THE "INSURANCE"
POLICY. 

THE FINDING BY THE BOARD OF TAX APPEALS THAT THERE WAS SOME RISK
NECESSARILY IS AMBIGUOUS IN VIEW OF THEIR FINDING THAT THE COMPANY
ANNUALLY EARNED FROM 3 1/2 TO 4 PERCENT ON ITS OWN INVESTMENTS.  IT IS
THEREFORE REASONABLE TO CONCLUDE THAT THE "RISK" REFERRED TO WAS A RISK
THAT THE FUNDS MIGHT NOT EARN ENOUGH TO COVER PROFITABLY THE ANNUITY
PAYABLE TO THE DECEDENT, OR A RISK DUE TO A MISCALCULATION OF THE
PROPER TOTAL CONSIDERATION.  IN EITHER EVENT IT IS NOT A FINDING OF THE
EXISTENCE OF AN INSURANCE RISK. 

SINCE THE CASE IS NOT DISTINGUISHABLE FROM HELVERING V. LE GIERSE,
SUPRA, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS THINK THE JUDGMENT SHOULD
BE REVERSED FOR THE REASONS STATED IN THE OPINION OF THE CIRCUIT COURT
OF APPEALS FOR THE SECOND CIRCUIT IN COMMISSIONER V. LE GIERSE, 110
F.2D 734. 
..END :






EX PARTE HULL, 312 U.S. 546 


NO. - , ORIGINAL.  DECIDED MARCH 3, 1941.  - MOTION FOR LEAVE TO FILE A
PETITION FOR WRIT OF HABEAS CORPUS DENIED. 


1.  A STATE PRISON RULE ABRIDGING OR IMPAIRING A PRISONER'S RIGHT TO
APPLY TO THE FEDERAL COURTS FOR A WRIT OF HABEAS CORPUS IS INVALID.  P.
548. 

2.  A PETITION FOR HABEAS CORPUS ATTACHED AS AN EXHIBIT TO
PETITIONER'S RESPONSE TO A WARDEN'S RETURN TO AN ORDER TO SHOW CAUSE IS
TREATED IN THIS CASE AS A MOTION FOR LEAVE TO FILE A PETITION FOR THE
WRIT.  P. 549. 

3.  A PETITION FOR A WRIT OF HABEAS CORPUS TO TEST THE VALIDITY OF A
CONVICTION FOR A SECOND OFFENSE, COMMITTED WHILE THE PETITIONER WAS
UNDER SENTENCE FOR A FIRST OFFENSE BUT ON PAROLE, AND SENTENCE FOR
WHICH HAS NOT BEGUN TO BE SERVED, HELD NOT PREMATURE WHEN REVOCATION OF
THE PAROLE WAS DUE TO THE SECOND CONVICTION.  P. 549. 

4.  A MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF HABEAS CORPUS
HELD NOT SUFFICIENT TO REQUIRE ANSWER.  P. 550. 

THE PETITION WAS BASED ON A VARIANCE BETWEEN PLEADING AND PROOF WITH
RESPECT TO THE DATE OF THE OFFENSE.  THE PETITIONER WAS REPRESENTED BY
COUNSEL THROUGHOUT THE TRIAL, YET HIS PETITION DID NOT SAY THAT ANY
OBJECTION TO EVIDENCE, CLAIM OF SURPRISE OR MOTION FOR CONTINUANCE WAS
MADE BECAUSE OF SUCH VARIANCE; OR THAT HE HAD AN ALIBI FOR ANY OTHER
DATE.  THE PETITION DID NOT MAKE CLEAR THE EXTENT OF ANY VARIANCE AND
NO TRANSCRIPT OF THE TRIAL WAS FURNISHED. 

EX PARTE CLEIO HULL. 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN JANUARY, 1936, PETITIONER WAS CONVICTED OF A STATUTORY SEX OFFENSE
AND WAS SENTENCED TO THE MICHIGAN STATE PRISON AT JACKSON, MICHIGAN,
FOR AN INDETERMINATE TERM OF SIX MONTHS TO TEN YEARS.  ABOUT TEN MONTHS
LATER HE WAS PAROLED.  IN OCTOBER, 1937, HE WAS CONVICTED OF ANOTHER
SEX OFFENSE AND WAS RETURNED TO THE SAME PRISON TO SERVE A SENTENCE OF
TWO AND ONE-HALF TO FIVE YEARS FROM ENTRY OF THE SECOND JUDGMENT. 
APPARENTLY FOR THE SOLE REASON THAT THE SECOND CONVICTION WAS REGARDED
AS A VIOLATION OF HIS PAROLE, PETITIONER WAS GIVEN A HEARING BEFORE THE
STATE PAROLE BOARD AND WAS PASSED INDEFINITELY TOWARD THE MAXIMUM
SENTENCE FOR THE FIRST OFFENSE.  SEE MICHIGAN STATUTES ANNOTATED, 1940
SUPPLEMENT, SEC. 28.2108. 

IN NOVEMBER, 1940, PETITIONER PREPARED A PETITION FOR WRIT OF HABEAS
CORPUS AND EXHIBITS TO FILE IN THIS COURT.  HE TOOK THE PAPERS TO A
PRISON OFFICIAL AND REQUESTED HIM TO NOTARIZE THEM.  THE OFFICIAL
REFUSED AND INFORMED PETITIONER THAT THE PAPERS AND A REGISTERED LETTER
TO THE CLERK OF THIS COURT CONCERNING THEM WOULD NOT BE ACCEPTED FOR
MAILING.  ALTHOUGH THE PAPERS WERE NOT NOTARIZED, PETITIONER THEN
DELIVERED THEM TO HIS FATHER FOR MAILING OUTSIDE THE PRISON BUT GUARDS
CONFISCATED THEM.  SEVERAL DAYS LATER, PETITIONER AGAIN ATTEMPTED TO
MAIL A LETTER CONCERNING HIS CASE TO THE CLERK OF THIS COURT.  IT WAS
INTERCEPTED AND SENT TO THE LEGAL INVESTIGATOR FOR THE STATE PAROLE
BOARD.  FN1  APPARENTLY NEITHER OF THE LETTERS WAS RETURNED TO THE
PETITIONER,  FN2 AND THE PAPERS TAKEN FROM HIS FATHER WERE NOT RETURNED
UNTIL LATE IN DECEMBER. 

PETITIONER THEN PREPARED ANOTHER DOCUMENT WHICH HE SOMEHOW MANAGED TO
HAVE HIS FATHER, AS "AGENT," FILE WITH THE CLERK OF THIS COURT ON
DECEMBER 26, 1940.  IN THIS DOCUMENT PETITIONER DETAILED HIS EFFORTS TO
FILE THE PAPERS CONFISCATED BY PRISON OFFICIALS, CONTENDED THAT HE WAS
THEREFORE UNLAWFULLY RESTRAINED, AND PRAYED THAT HE BE RELEASED. 

ON JANUARY 6, 1941, WE ISSUED A RULE TO SHOW CAUSE WHY LEAVE TO FILE
A PETITION FOR WRIT OF HABEAS CORPUS SHOULD NOT BE GRANTED.  THE WARDEN
FILED A RETURN TO THE RULE SETTING FORTH THE CIRCUMSTANCES OF THE TWO
CONVICTIONS, THE PROCEEDINGS OF THE PAROLE BOARD, AND NUMEROUS
EXHIBITS.  IN JUSTIFICATION OF THE ACTION PREVENTING PETITIONER FROM
FILING HIS PAPERS OR COMMUNICATING WITH THIS COURT, THE WARDEN ALLEGED
THAT IN NOVEMBER, 1940, HE HAD PUBLISHED A REGULATION PROVIDING THAT:
"ALL LEGAL DOCUMENTS, BRIEFS, PETITIONS, MOTIONS, HABEAS CORPUS
PROCEEDINGS AND APPEALS WILL FIRST HAVE TO BE SUBMITTED TO THE
INSTITUTIONAL WELFARE OFFICE AND IF FAVORABLY ACTED UPON BE THEN
REFERRED TO PERRY A. MAYNARD, LEGAL INVESTIGATOR TO THE PAROLE BOARD,
LANSING, MICHIGAN.  DOCUMENTS SUBMITTED TO PERRY A. MAYNARD, IF IN HIS
OPINION ARE PROPERLY DRAWN, WILL BE DIRECTED TO THE COURT DESIGNATED OR
WILL BE REFERRED BACK TO THE INMATE." 

IN ANSWER, PETITIONER FILED A "RESPONSE TO THE RETURN" WHICH AGAIN
CHALLENGED THE VALIDITY OF THIS REGULATION AND WHICH CONTAINED NUMEROUS
EXHIBITS.  ONE OF THE EXHIBITS WAS THE PETITION FOR WRIT OF HABEAS
CORPUS TAKEN FROM PETITIONER'S FATHER.  IN BRIEF, THIS PETITION
ASSAILED THE LEGALITY OF PETITIONER'S IMPRISONMENT UNDER THE SECOND
CONVICTION ON THE GROUND THAT HE HAD BEEN DENIED PROCEDURAL DUE
PROCESS. 

THE FIRST QUESTION CONCERNS THE EFFECT OF THE REGULATION QUOTED IN
THE WARDEN'S RETURN. 

THE REGULATION IS INVALID.  THE CONSIDERATIONS THAT PROMPTED ITS
FORMULATION ARE NOT WITHOUT MERIT, BUT THE STATE AND ITS OFFICERS MAY
NOT ABRIDGE OR IMPAIR PETITIONER'S RIGHT TO APPLY TO A FEDERAL COURT
FOR A WRIT OF HABEAS CORPUS.  WHETHER A PETITION FOR WRIT OF HABEAS
CORPUS ADDRESSED TO A FEDERAL COURT IS PROPERLY DRAWN AND WHAT
ALLEGATIONS IT MUST CONTAIN ARE QUESTIONS FOR THAT COURT ALONE TO
DETERMINE.  COMPARE FIRST NATIONAL BANK V. ANDERSON, 269 U.S. 341, 346;
ERIE R. CO. V. PURDY, 185 U.S. 148, 152; CARTER V. TEXAS, 177 U.S. 442,
447; SEE EX PARTE SHARP, 33 F.SUPP.  464. 

HOWEVER, THE INVALIDITY OF THE PRISON REGULATION DOES NOT COMPEL
PETITIONER'S RELEASE.  FOR THAT REASON IT IS NECESSARY TO EXAMINE THE
PETITION ANNEXED TO THE RESPONSE.  ALTHOUGH IT IS HERE AS AN EXHIBIT TO
THE RESPONSE, IT MAY BE CONSIDERED AS A MOTION FOR LEAVE TO FILE A
PETITION FOR WRIT OF HABEAS CORPUS INASMUCH AS THE WARDEN HAS NOT HAD
AN OPPORTUNITY TO ANSWER IT.  THE NEXT QUESTION, THEREFORE, IS WHETHER
THIS PETITION IS PREMATURE. 

THE PETITION IS NOT PREMATURE.  COMPARE MCNALLY V. HILL, 293 U.S.
131; IN RE BONNER, 151 U.S. 242.  DESPITE THE FACT THAT PETITIONER IS
NOW IN PRISON UNDER THE SENTENCE FOR THE FIRST OFFENSE, HE WAS AT
LIBERTY ON PAROLE AT THE TIME HE WAS ARRESTED AND CHARGED WITH THE
SECOND OFFENSE.  TRUE, PAROLE REGULATIONS OBLIGATED HIM TO STAY WITHIN
JACKSON COUNTY BUT THAT IS NOT THE IMPRISONMENT PRESENT IN THE MCNALLY
CASE.  MOREOVER, PETITIONER'S PAROLE WAS REVOKED AND HE WAS ORDERED TO
SERVE OUT HIS FIRST SENTENCE ONLY BECAUSE OF THE SECOND CONVICTION. 
SEE MICHIGAN STATUTES ANNOTATED, SUPRA.  THERE IS NO REASON TO SUPPOSE
THAT HE CAN COMPEL THE PAROLE BOARD TO REVIEW THE RECORD OF THE SECOND
CONVICTION, OR TO MAKE A DECLARATORY RULING THAT IF THAT CONVICTION IS
VOID HIS PAROLE WILL BE REINSTATED.  THUS THE LAST QUESTION IS WHETHER
THE PETITION, TREATED AS A MOTION FOR LEAVE TO FILE A PETITION FOR WRIT
OF HABEAS CORPUS, IS SUFFICIENT TO NECESSITATE AN ORDER REQUIRING THE
WARDEN TO ANSWER. 

AT BOTTOM, PETITIONER'S CASE IS THIS:  THAT IN THE SECOND TRIAL THERE
WAS A VARIANCE BETWEEN PLEADING AND PROOF WITH RESPECT TO THE DATE WHEN
THE OFFENSE WAS COMMITTED, AND THAT PETITIONER THUS WAS DENIED THE FAIR
NOTICE OF THE CHARGE GUARANTEED BY THE DUE PROCESS CLAUSE.  FROM
EXHIBITS AND RATHER VAGUE STATEMENTS IN THE PETITION, THE FOLLOWING
APPEARS:  THAT IN HIS OPENING STATEMENT AND THROUGHOUT THE TRIAL THE
PROSECUTOR INSISTED THAT THE OFFENSE OCCURRED ON THE DATE CHARGED IN
THE INFORMATION; THAT PETITIONER'S DEFENSE WAS THAT HE WAS ELSEWHERE AT
THE TIME IN QUESTION; THAT SOME OF THE TESTIMONY TENDED TO FIX THE DATE
OF THE OFFENSE ABOUT A WEEK EARLIER THAN THAT CHARGED IN THE
INDICTMENT; THAT AT THE CLOSE OF ALL THE EVIDENCE, PETITIONER'S COUNSEL
MOVED FOR A DIRECTED VERDICT ON THE GROUND THAT THERE WAS NO EVIDENCE
TO PROVE THAT THE OFFENSE WAS COMMITTED ON THE DATE CHARGED IN THE
INFORMATION; THAT THE TRIAL JUDGE DENIED THIS MOTION AND CHARGED THE
JURY THAT THE PRECISE DATE WAS IMMATERIAL, IT BEING SUFFICIENT TO SHOW
THAT THE OFFENSE OCCURRED DURING THE MONTH PREVIOUS; THAT THE TRIAL
JUDGE ENTERED JUDGMENT ON THE JURY'S VERDICT OF GUILTY AND DENIED
PETITIONER'S MOTION FOR A NEW TRIAL ON THE SAME GROUND URGED IN THE
MOTION FOR DIRECTED VERDICT; AND THAT THE MICHIGAN SUPREME COURT
SUBSEQUENTLY DENIED CERTIORARI. 

WE CONCLUDE THAT THE SHOWING MADE BY THE PETITION AND EXHIBITS IS
INSUFFICIENT TO COMPEL AN ORDER REQUIRING THE WARDEN TO ANSWER. 
PETITIONER WAS REPRESENTED BY COUNSEL THROUGHOUT THE SECOND TRIAL.  YET
THERE IS NO CLAIM IN THE PETITION THAT HE OBJECTED TO EVIDENCE TENDING
TO ESTABLISH A DIFFERENT DATE FOR COMMISSION OF THE OFFENSE, OR THAT HE
CLAIMED SURPRISE, OR THAT HE MOVED FOR A CONTINUANCE TO ENABLE HIM TO
SECURE OTHER WITNESSES.  HE DOES NOT ALLEGE THAT AT THE TIME OF THE
TRIAL HE HAD AN ALIBI FOR ANY OTHER DATE, NOR DOES HE MAKE CLEAR THE
ACTUAL EXTENT OF ANY VARIANCE.  FURTHERMORE, ASCERTAINMENT OF THESE
FACTS IS IMPOSSIBLE SINCE PETITIONER HAS NOT FURNISHED THE TRANSCRIPT
TAKEN AT THE SECOND TRIAL.  ACCORDINGLY, IT WOULD BE IMPROPER TO
INQUIRE WHETHER PETITIONER WAS DENIED PROCEDURAL DUE PROCESS IN THE
SECOND TRIAL.  COMPARE HARDY V. UNITED STATES, 186 U.S. 224, 225;
LEDBETTER V. UNITED STATES, 170 U.S. 606, 612; HODGSON V. VERMONT, 168
U.S. 262, 271; MATTHEWS V. UNITED STATES, 161 U.S. 500. 

THE MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF HABEAS CORPUS IS
THEREFORE DENIED.  MOTION DENIED. 

FN1  ABOUT A WEEK LATER PETITIONER RECEIVED THE FOLLOWING REPLY FROM
THE LEGAL INVESTIGATOR: "YOUR LETTER OF NOVEMBER 18, 1940, ADDRESSED TO
THE CLERK OF THE UNITED STATES SUPREME COURT, HAS BEEN REFERRED TO THE
WRITER FOR REPLY.  IN THE FIRST PLACE YOUR APPLICATION IN ITS PRESENT
FORM WOULD NOT BE ACCEPTABLE TO THAT COURT.  YOU MUST FILE A PETITION
FOR WHATEVER RELIEF YOU ARE SEEKING AND STATE YOUR REASONS THEREFOR,
TOGETHER WITH A MEMORANDUM BRIEF.  YOUR PETITION MUST BE VERIFIED UNDER
OATH AND SUPPORTED BY PROPER AFFIDAVITS, IF ANY YOU HAVE.  YOUR LETTER
WAS, NO DOUBT, INTERCEPTED FOR THE REASON THAT IT WAS DEEMED TO BE
INADEQUATE AND WHICH UNDOUBTEDLY ACCOUNTS FOR THE FACT THAT IT FOUND
ITS WAY TO MY DESK." 

APPARENTLY THE LEGAL INVESTIGATOR SERVES AS ATTORNEY AND ADVISOR TO
THE STATE PAROLE BOARD.  HIS FUNCTIONS WITH RESPECT TO LEGAL DOCUMENTS
OF PRISON INMATES APPEAR MORE FULLY FROM THE PRISON REGULATION QUOTED
HEREAFTER. 

FN2  NEITHER OF THE LETTERS REACHED THE CLERK OF THIS COURT.  ON
DECEMBER 12, 1940, PETITIONER REQUESTED THE PRISON SUPERINTENDENT OF
MAIL TO TRACE THE REGISTERED LETTER SINCE HE HAD NOT RECEIVED THE
RETURN RECEIPT WHICH ACCOMPANIED IT.  THE ASSISTANT SUPERINTENDENT
REPLIED:  "THIS WAS MAILED THRU PERRY MAYNARD BY ORDERS FROM WARDEN." 
APPARENTLY THE LEGAL INVESTIGATOR MADE NO REPLY. 
..END :













SMITH V. O'GRADY, 312 U.S. 329 


NO. 364.  ARGUED JANUARY 17, 1941.  - DECIDED FEBRUARY 17, 1941.  -
REVERSED. 


1.  THE REMEDY BY HABEAS CORPUS IS AVAILABLE IN THE COURTS OF NEBRASKA
FOR DETERMINING WHETHER THE PETITIONER'S INCARCERATION IS IN VIOLATION
OF THE FEDERAL CONSTITUTION.  P. 331. 

2.  A PETITION FOR HABEAS CORPUS ALLEGING FACTS SHOWING A CASE OF
INCARCERATION FOR A SERIOUS OFFENSE, RESULTING FROM A PLEA OF GUILTY
INTO THE MAKING OF WHICH THE PETITIONER, AN UNEDUCATED MAN UNAIDED BY
COUNSEL, WAS TRICKED BY STATE OFFICERS, STATES A CAUSE OF ACTION UNDER
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 334. 

SMITH V. O'GRADY, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF NEBRASKA. 

CERTIORARI, 311 U.S. 633, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING AN APPLICATION FOR WRIT OF HABEAS CORPUS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER PETITIONER'S APPLICATION FOR WRIT
OF HABEAS CORPUS FILED IN A NEBRASKA STATE COURT ALLEGED FACTS WHICH IF
PROVEN ENTITLED HIM TO RELEASE FROM PRISON BECAUSE HE WAS HELD PURSUANT
TO A COURT JUDGMENT RENDERED IN VIOLATION OF RIGHTS GUARANTEED HIM BY
THE FEDERAL CONSTITUTION.  THE TRIAL COURT DECLINED TO ISSUE THE WRIT,
HOLDING THAT THE PETITION FAILED TO STATE A CAUSE OF ACTION JUSTIFYING
THE RELIEF PRAYED.  WITHOUT REQUIRING THE STATE TO ANSWER AND WITHOUT
GIVING PETITIONER AN OPPORTUNITY TO PROVE HIS ALLEGATIONS, THE
APPLICATION WAS DISMISSED.  A MOTION FOR RECONSIDERATION, SETTING OUT
ADDITIONAL FACTS, WAS SIMILARLY DISMISSED.  ON APPEAL, THE SUPREME
COURT OF NEBRASKA AFFIRMED, WITHOUT OPINION. 

THE JUDGMENT OF THE NEBRASKA SUPREME COURT IS A FINAL AND
AUTHORITATIVE ANSWER TO PETITIONER'S CONTENTION THAT HIS IMPRISONMENT
WAS ILLEGAL UNDER THE STATE'S CONSTITUTION OR LAWS.  BUT PETITIONER
ALSO CONTENDED THAT HIS IMPRISONMENT WAS ILLEGAL UNDER THE FEDERAL
CONSTITUTION.  AND IN DENYING THE WRIT THE NEBRASKA COURT NECESSARILY
HELD THAT PETITIONER'S ALLEGATIONS - EVEN IF PROVEN IN THEIR ENTIRETY -
WOULD NOT ENTITLE HIM TO HABEAS CORPUS, EVEN IF THE PETITION SHOWED A
DEPRIVATION OF FEDERALLY PROTECTED RIGHTS.  FN1  IT WAS TO REVIEW THIS
QUESTION THAT WE GRANTED CERTIORARI.  311 U.S. 633. 

BUT BEFORE EXAMINING THE PLEADINGS IN ORDER TO DETERMINE WHETHER THE
ALLEGATIONS SHOWED A DEPRIVATION OF FEDERALLY PROTECTED RIGHTS, IT IS
NECESSARY TO CONSIDER A PRELIMINARY CONTENTION URGED BY THE STATE.  THE
TENOR OF THIS CONTENTION IS THAT UNDER NEBRASKA LAW PETITIONER COULD
NOT HAVE HIS ASSERTED FEDERAL RIGHTS DETERMINED IN HABEAS CORPUS
PROCEEDINGS.  AND, SUPPORTING THIS CONTENTION, THERE IS IN THE RECORD A
LETTER TO PETITIONER FROM THE TRIAL JUDGE WHO ORIGINALLY DENIED THE
WRIT - A LETTER INDICATING THAT PETITIONER'S ONLY RELIEF FROM ILLEGAL
IMPRISONMENT WAS BY APPLICATION TO THE NEBRASKA PAROLE AND PARDON
BOARD.  THIS LETTER IS NOT, HOWEVER, A JUDICIAL DETERMINATION, AND
APPARENTLY NO STATE STATUTES OR COURT DECISIONS COMPEL THE RESULT IT
INDICATES.  NOR CAN WE LIGHTLY ASSUME THAT NEBRASKA AFFORDS NO
CORRECTIVE PROCESS FOR ONE WHO IS IMPRISONED UNDER A JUDGMENT RENDERED
IN VIOLATION OF RIGHTS PROTECTED BY THE FEDERAL CONSTITUTION.  THAT
CONSTITUTION IS THE SUPREME LAW OF THE LAND, AND "UPON THE STATE
COURTS, EQUALLY WITH THE COURTS OF THE UNION, RESTS THE OBLIGATION TO
GUARD AND ENFORCE EVERY RIGHT SECURED BY THAT CONSTITUTION."  FN2
MOREOVER, WHILE THE OPINIONS OF THE NEBRASKA COURTS DO NOT MARK CLEARLY
THE EXACT BOUNDARIES WITHIN WHICH NEBRASKA CONFINES THE HISTORIC REMEDY
OF HABEAS CORPUS, THE NEBRASKA SUPREME COURT HAS HELD THAT THE WRIT WAS
PROPERLY INVOKED TO OBTAIN RELEASE FROM IMPRISONMENT RESULTING FROM
DEPRIVATION OF CONSTITUTIONAL RIGHTS.  FN3  BECAUSE OF THIS, AND
BECAUSE A CONTRARY CONCLUSION WOULD APPARENTLY MEAN THAT NEBRASKA
PROVIDES NO JUDICIAL REMEDY WHATSOEVER FOR PETITIONER EVEN THOUGH HE
CAN SHOW HE IS IMPRISONED IN VIOLATION OF PROCEDURAL SAFEGUARDS
COMMANDED BY THE FEDERAL CONSTITUTION,  FN4  WE ARE UNABLE TO REACH THE
CONCLUSION THAT HABEAS CORPUS IS UNAVAILABLE TO HIM UNDER NEBRASKA
LAW. 

IT IS THEREFORE OUR DUTY TO EXAMINE PETITIONER'S ALLEGATIONS IN ORDER
TO DETERMINE WHETHER THEY SHOW THAT HIS IMPRISONMENT IS THE RESULT OF A
DEPRIVATION OF RIGHTS GUARANTEED HIM BY THE FEDERAL CONSTITUTION.  THE
HEART OF HIS CHARGE IS THAT HE, AN IGNORANT LAYMAN NOT REPRESENTED BY
COUNSEL, WAS TRICKED INTO PLEADING GUILTY TO A SERIOUS OFFENSE.  AMONG
THE SPECIFIC ALLEGATIONS ARE: 

PETITIONER, WITHOUT BEING INFORMED OF THE CHARGES AGAINST HIM, WAS
ARRESTED IN ONE COUNTY, AND THEN REMOVED TO ANOTHER COUNTY FOR TWO
DAYS.  THERE HE WAS TOLD HE WAS WANTED FOR BURGLARY IN A THIRD COUNTY
(VALLEY COUNTY), BUT WOULD BE DEALT WITH LENIENTLY IF HE WOULD PLEAD
GUILTY.  AFTER A LONG DISTANCE TELEPHONE CONVERSATION BETWEEN
PETITIONER AND A MAN IDENTIFIED AS THE PROSECUTING ATTORNEY OF VALLEY
COUNTY, A CONVERSATION ARRANGED AND LISTENED TO BY THE VALLEY COUNTY
SHERIFF, A SENTENCE OF NOT OVER THREE YEARS WAS AGREED UPON. 
PETITIONER WAS SOON THEREAFTER TRANSFERRED TO THE VALLEY COUNTY JAIL. 
HIS EFFORTS TO GET COPIES OF THE CHARGES FILED AGAINST HIM WERE
UNSUCCESSFUL, THE SHERIFF TELLING HIM THAT THIS WAS "NOT NECESSARY"
SINCE "EVERYTHING HAD BEEN 'FIXED.'"  AFTER THREE DAYS IN THE VALLEY
COUNTY JAIL, AND "WITHOUT EVER HAVING HAD A COPY OF THE CHARGE,"
PETITIONER WAS TAKEN BEFORE A TRIAL JUDGE, "SUMMARILY ARRAIGNED, AND,
UPON HIS PREARRANGED PLEA OF GUILTY, SENTENCED, TO HIS SURPRISE AND
CONSTERNATION, TO A TERM OF TWENTY YEARS IMPRISONMENT IN THE NEBRASKA
STATE PENITENTIARY."  PETITIONER, AN UNEDUCATED LAYMAN, HAD NO
KNOWLEDGE OF LAW OR LEGAL PROCEDURE, AND HAD NEVER BEFORE BEEN ARRESTED
OR BEEN IN A COURT ROOM FOR ANY PURPOSE WHATSOEVER.  UPON IMPOSITION OF
THE TWENTY YEAR SENTENCE, HOWEVER, HE VIGOROUSLY PROTESTED, ASKED THE
COURT AND THE PROSECUTING ATTORNEY FOR A COPY OF THE CHARGE TO WHICH HE
HAD PLEADED GUILTY, AND, THIS REQUEST BEING REFUSED, ASKED PERMISSION
TO WITHDRAW HIS PLEA OF GUILTY, REQUESTED APPOINTMENT OF AN ATTORNEY TO
ADVISE AND ASSIST HIM, AND ASKED THAT HE BE GIVEN A PROPER OPPORTUNITY
TO DEFEND HIMSELF.  ALL OF THESE REQUESTS WERE REFUSED BY THE COURT,
AND "WITHIN THE HOUR" HE WAS ON HIS WAY TO THE PENITENTIARY,
ACCOMPANIED BY THE SHERIFF.  AFTER ARRIVING AT THE PENITENTIARY HE
DISCOVERED "THAT HE HAD BEEN DUPED AND INVEIGLED INTO ENTERING A PLEA
OF GUILTY TO A CHARGE OF BURGLARY WITH EXPLOSIVES  ...  ," PUNISHABLE
IN NEBRASKA BY TWENTY YEARS TO LIFE IMPRISONMENT.  SIMPLE BURGLARY, TO
WHICH PETITIONER AGREED TO PLEAD GUILTY, UPON CONDITION THAT HE BE
SENTENCED TO THREE YEARS, CARRIES A PENALTY OF ONE TO TEN YEARS. 
DURING THE EIGHT YEARS PETITIONER HAS BEEN IN THE PENITENTIARY, HE HAS
DONE EVERYTHING AN UNEDUCATED PERSON COULD DO TO BRING HIS ILLEGAL
IMPRISONMENT TO THE ATTENTION OF THE NEBRASKA AUTHORITIES, BUT HAS NOT
BEEN ABLE TO GET COUNSEL BECAUSE OF LACK OF FUNDS.  HIS APPEALS TO THE
BOARD OF PARDONS HAVE BEEN FUTILE.  BECAUSE OF HIS IGNORANCE OF HIS
RIGHTS, AND BECAUSE OF THE TRIAL COURT'S FAILURE TO APPOINT, AND HIS
INABILITY TO OBTAIN, COUNSEL, THE ORIGINAL SENTENCE WAS NOT APPEALED. 

THESE ALLEGATIONS, IF TRUE, UNDERMINE AND INVALIDATE THE JUDGMENT
UPON WHICH PETITIONER'S IMPRISONMENT RESTS.  THE CIRCUMSTANCES UNDER
WHICH PETITIONER ASSERTS HE WAS ENTRAPPED AND IMPRISONED IN THE
PENITENTIARY ARE WHOLLY IRRECONCILABLE WITH THE CONSTITUTIONAL
SAFEGUARDS OF DUE PROCESS.  FOR HIS PETITION PRESENTS A PICTURE OF A
DEFENDANT, WITHOUT COUNSEL, BEWILDERED BY COURT PROCESSES STRANGE AND
UNFAMILIAR TO HIM, AND INVEIGLED BY FALSE STATEMENTS OF STATE LAW
ENFORCEMENT OFFICERS INTO ENTERING A PLEA OF GUILTY.  THE PETITIONER
CHARGED THAT HE HAD BEEN DENIED ANY REAL NOTICE OF THE TRUE NATURE OF
THE CHARGE AGAINST HIM, THE FIRST AND MOST UNIVERSALLY RECOGNIZED
REQUIREMENT OF DUE PROCESS; THAT BECAUSE OF DECEPTION BY THE STATE'S
REPRESENTATIVES HE HAD PLEADED GUILTY TO A CHARGE PUNISHABLE BY TWENTY
YEARS TO LIFE IMPRISONMENT; THAT HIS REQUEST FOR THE BENEFIT AND ADVICE
OF COUNSEL HAD BEEN DENIED BY THE COURT; AND THAT HE HAD BEEN RUSHED TO
THE PENITENTIARY WHERE HIS IGNORANCE, CONFINEMENT AND POVERTY HAD
PRECLUDED THE POSSIBILITY OF HIS SECURING COUNSEL IN ORDER TO CHALLENGE
THE PROCEDURE BY REGULAR PROCESSES OF APPEAL.  IF THESE THINGS
HAPPENED, PETITIONER IS IMPRISONED UNDER A JUDGMENT INVALID BECAUSE
OBTAINED IN VIOLATION OF PROCEDURAL GUARANTIES PROTECTED AGAINST STATE
INVASION THROUGH THE FOURTEENTH AMENDMENT.  FN5  THE STATE COURT
ERRONEOUSLY DECIDED THAT THE PETITION STATED NO CAUSE OF ACTION.  IF
PETITIONER CAN PROVE HIS ALLEGATIONS THE JUDGMENT UPON WHICH HIS
IMPRISONMENT RESTS WAS RENDERED IN VIOLATION OF DUE PROCESS AND CANNOT
STAND.  REVERSED AND REMANDED. 

FN1  IT IS SUGGESTED THAT THE NEBRASKA SUPREME COURT'S FINAL JUDGMENT
OF AFFIRMANCE RESTED ON PETITIONER'S FAILURE TO FILE A PRINTED BRIEF IN
THAT COURT, AND THAT THIS WAS AN ADEQUATE NON-FEDERAL GROUND,
PRECLUDING OUR REVIEW OF THE FEDERAL QUESTION RAISED.  BUT THIS
CONTENTION IS OBVIOUSLY NOT SOUND, BECAUSE THE SUPREME COURT DENIED
PETITIONER'S MOTION FOR RELIEF FROM THE RULE REQUIRING PRINTED BRIEFS
SOLELY ON THE GROUND THAT UPON EXAMINATION OF THE WHOLE RECORD THE
COURT HAD FOUND THE APPEAL TO BE WITHOUT MERIT. 

FN2  MOONEY V. HOLOHAN, 294 U.S. 103, 113. 

FN3  IN RE RESLER, 115 NEB. 335, 338-340; 212 N.W. 765.  AND SEE
KUWITZKY V. O'GRADY, 135 NEB. 466, 468; 282 N.W. 396.  CF. DARLING V.
FENTON, 120 NEB. 829; 235 N.W. 582. 

FN4  SEE NEWCOMB V. STATE, 129 NEB. 69; 261 N.W. 765. 

FN5  CF. WALKER V. JOHNSTON, ANTE, P. 275; JOHNSON V. ZERBST, 304
U.S. 458; MOONEY V. HOLOHAN, 294 U.S. 103.  AND SEE CHAMBERS V.
FLORIDA, 309 U.S. 227. 
..END :
















BROWDER V. UNITED STATES, 312 U.S. 335 


NO. 287.  ARGUED JANUARY 16, 1941.  - DECIDED FEBRUARY 17, 1941.  - 113
F.2D 97, AFFIRMED. 


1.  A CITIZEN OF THE UNITED STATES WHO WILLFULLY AND KNOWINGLY USES A
UNITED STATES PASSPORT WHICH WAS SECURED BY A FALSE STATEMENT, IS
GUILTY OF AN OFFENSE UNDER SEC. 2 OF THE PASSPORT TITLE OF THE ACT OF
JUNE 15, 1917, WHEN THE USE WAS FOR THE PURPOSE OF ESTABLISHING HIS
IDENTITY AND CITIZENSHIP AND CONSEQUENT RIGHT TO REENTER THIS COUNTRY
FROM ABROAD.  P. 337. 

2.  THE TERM "WILLFUL" OFTEN DENOTES AN INTENTIONAL, AS DISTINGUISHED
FROM AN ACCIDENTAL, ACT.  P. 342. 

BROWDER V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 631, TO REVIEW THE AFFIRMANCE OF A SENTENCE ON
TWO COUNTS OF AN INDICTMENT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE USE BY AN AMERICAN CITIZEN OF A PASSPORT
OBTAINED BY FALSE STATEMENTS TO FACILITATE REENTRY INTO THE UNITED
STATES IS A "USE" WITHIN SEC. 2 OF THE PASSPORT TITLE OF THE ACT OF
JUNE 15, 1917,  FN1  AND, IF SO, WHETHER PETITIONER WAS PROPERLY
CONVICTED OF A "WILLFUL" USE.  WE BROUGHT THE CASE HERE BECAUSE OF ITS
IMPORTANCE IN THE ADMINISTRATION OF THE PASSPORT LAWS. 

IN AN APPLICATION FOR A PASSPORT OR "SHALL WILLFULLY AND KNOWINGLY USE
...  ANY PASSPORT THE ISSUE OF WHICH WAS SECURED IN ANY WAY BY REASON
OF ANY FALSE STATEMENT, SHALL BE FINED NOT MORE THAN $2,000 OR
IMPRISONED NOT MORE THAN FIVE YEARS OR BOTH."  THE INDICTMENT IN TWO
COUNTS CHARGED THAT PETITIONER, HAVING SECURED A PASSPORT BY A FALSE
STATEMENT, WILLFULLY AND KNOWINGLY USED IT ON APRIL 30, 1937, AND AGAIN
ON FEBRUARY 15, 1938, EACH TIME BY PRESENTING IT TO AN IMMIGRATION
INSPECTOR TO GAIN ENTRY INTO THE UNITED STATES.  THE PROOF SHOWED THAT
PETITIONER, A NATIVE-BORN AMERICAN CITIZEN, HAD IN 1921, 1927 AND 1931
OBTAINED PASSPORTS UNDER DIFFERENT ASSUMED NAMES BY MEANS OF FALSE
STATEMENTS.  IN 1934 PETITIONER APPLIED FOR A PASSPORT IN HIS OWN
NAME.  THE APPLICATION BLANK CONTAINED THE CLAUSE:  "MY LAST PASSPORT
WAS OBTAINED FROM .................. AND IS SUBMITTED HEREWITH FOR
CANCELLATION."  DESPITE THE THREE PASSPORTS PREVIOUSLY ISSUED TO HIM,
PETITIONER WROTE "NONE" IN THE BLANK SPACE, THEN SIGNED THE APPLICATION
AND SWORE TO THE TRUTH OF ITS CONTENTS.  THE GOVERNMENT ISSUED HIM A
PASSPORT, WHICH WAS LATER EXTENDED UPON A RENEWAL APPLICATION UNTIL
SEPTEMBER 1, 1938.  RETURNING FROM EUROPE IN APRIL, 1937, AND AGAIN IN
FEBRUARY, 1938, PETITIONER SHOWED HIS PASSPORT TO AN INSPECTOR TO
IDENTIFY HIMSELF AND ESTABLISH HIS CITIZENSHIP AND CONSEQUENT RIGHT TO
REENTER THE UNITED STATES.  THE JURY CONVICTED HIM ON BOTH COUNTS FOR
WILLFULLY USING A PASSPORT SECURED BY A FALSE STATEMENT, AND THE
DISTRICT COURT SENTENCED HIM TO TWO YEARS' IMPRISONMENT AND A FINE OF
$1,000 ON EACH COUNT, THE TERMS TO RUN CONSECUTIVELY.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  FN2  AT THE TIME OF THE INDICTMENT, THE
STATUTE OF LIMITATIONS HAD RUN ON THE OBTAINING OF THE PASSPORT BY A
FALSE STATEMENT (18 U.S.C. SEC. 582). 

PETITIONER CONTENDS THAT THE INDICTMENT IS FOR THE "USE" "OF A
PASSPORT AS TRUTHFUL PROOF OF HIS KANSAS BIRTH."  SINCE THE "USE" TO
PROVE AN ADMITTED FACT - HIS AMERICAN CITIZENSHIP - WAS INNOCENT, IT IS
URGED, NO STATUTORY PROHIBITION WAS VIOLATED.  THE INDICTMENT, HOWEVER,
CHARGES THAT PETITIONER "USED  ...  A PASSPORT  ...  THE ISSUE OF WHICH
HE SECURED BY REASON OF A FALSE STATEMENT  ...  IN THE APPLICATION
THEREFOR."  THE LANGUAGE OF THE INDICTMENT CONFORMS TO THE DEFINITION
OF THE OFFENSE IN THE STATUTE, AS THE USE OF "ANY PASSPORT THE ISSUE OF
WHICH WAS SECURED IN ANY WAY BY REASON OF ANY FALSE STATEMENT."  THE
BALANCED FORM OF SEC. 2, QUOTED ABOVE AT NOTE 1, SHOWS THAT THE
CONGRESS VIEWED WITH CONCERN AND PUNISHED WITH EQUAL SEVERITY THE
SECURING OF PASSPORTS BY FALSE STATEMENTS AND THEIR USE.  THE CRIMES
DENOUNCED ARE NOT THE SECURING OR THE USE BUT EITHER OF SUCH ACTIONS
MADE CRIMINAL ONLY BY THE FALSE STATEMENTS IN THE PROCUREMENT OF THE
PASSPORT.  IF THE MISREPRESENTATION IS WITHDRAWN NOTHING CULPABLE
REMAINS IN THE USE.  A CONDEMNED USE OF A PASSPORT SECURED BY THE FRAUD
SEEMS OBVIOUSLY WITHIN THE ACT. 

A MORE DIFFICULT ISSUE EMERGES FROM PETITIONER'S ASSERTION THAT THE
USE PROVEN HERE IS NOT THE KIND OF USE COVERED BY THE STATUTE.  HE
FINDS THE PROHIBITIONS DIRECTED AGAINST "DISHONEST USES OF THE SAFE
CONDUCT OF THE UNITED STATES IN FOREIGN RELATIONS."  SUCH USE MUST BE
"WILLFUL AND KNOWING," AN EXPRESSION SAID TO BEAR THE CONNOTATION OF
EVIL OR DISHONEST.  ATTENTION IS CALLED TO ALLEGED PASSPORT FRAUDS OF
ABOUT THE TIME OF THE PASSAGE OF THE PASSPORT SECTIONS AND TO THE
RECOMMENDATION OF THE ATTORNEY GENERAL THAT CONGRESS PASS LEGISLATION
AGAINST THE FRAUDULENT USE OF PASSPORTS.  FN3  THESE ARE BROUGHT
FORWARD AS INDICATIVE OF THE PURPOSE OF CONGRESS TO PUNISH FRAUDULENT
USES OR THOSE USES ABROAD WHICH WOULD INVOLVE MISUSE OF THE PRIVILEGE,
UNDER INTERNATIONAL LAW, OF TRAVELING THROUGH FOREIGN COUNTRIES. 

IT IS QUITE TRUE THAT PASSPORTS ARE USED CHIEFLY IN FOREIGN TRAVEL. 
THERE IS NO LIMITATION, HOWEVER, TO THAT FIELD AND SURELY THE CLOSE
CONNECTION BETWEEN FOREIGN TRAVEL AND REENTRY TO THIS COUNTRY IS
OBVIOUS.  THE PLAIN MEANING OF THE WORDS OF THE ACT COVERS THIS USE. 
NO SINGLE ARGUMENT HAS MORE WEIGHT IN STATUTORY INTERPRETATION THAN
THIS.  FN4  NOTHING IN THE LEGISLATIVE HISTORY IS BROUGHT TO OUR
ATTENTION WHICH INDICATES ANY OTHER PURPOSE IN CONGRESS THAN THAT
EXPRESSED BY THE WORDS OF THE ACT.  THE FINAL FORM OF THE ENACTMENT DID
NOT VARY IN THIS PARTICULAR PORTION FROM THE BILL ORIGINALLY INTRODUCED
N5.  THE GOVERNMENT DOES NOT URGE THAT EVERY USE OF A FRAUDULENT
PASSPORT IS VIOLATIVE OF THE ACT BUT ONLY THOSE "USES IN CONNECTION
WITH TRAVEL WHICH ARE A PART OF THE ORDINARY INCENTIVES FOR OBTAINING
PASSPORTS."  CERTAINLY THE USE TO PROVE CITIZENSHIP ON REENTRY TO THE
COUNTRY IS WITHIN THE ORDINARY INCENTIVES.  FN6  IT IS ENTIRELY CLEAR
FROM THE RECORD THAT PASSPORTS WERE CUSTOMARILY USED TO PROVE THE
BEARER'S CITIZENSHIP ON REENTRY INTO THE UNITED STATES AT THE TIME OF
THIS ALLEGED OFFENSE.  THE USE OF A PASSPORT FOR REENTRY IS NOW
ROUTINE, ALTHOUGH NEITHER AT THE TIME OF THE PASSAGE OF THE ACT NOR AT
PRESENT ARE PASSPORTS REQUIRED OF CITIZENS ON REENTRY.  OUR CONCLUSION
IS NOT WEAKENED BY THE FACT THAT THE ACT OF MAY 22, 1918,  FN7  WHICH
REQUIRED CITIZENS TO USE PASSPORTS TO DEPART FROM OR ENTER THE UNITED
STATES, WAS PERMITTED TO EXPIRE AFTER THE WAR EMERGENCY.  WHILE
PASSPORTS NO LONGER WERE REQUIRED FOR REENTRY, THEIR USE FOR THAT
PURPOSE AFTERWARDS BECAME BOTH CONVENIENT AND CUSTOMARY. 

THE FACT THAT AT THE TIME OF THE PASSAGE OF THE ACT, PASSPORTS WERE
NOT CUSTOMARILY USED BY CITIZENS TO ASSURE EASY REENTRY IS BROUGHT
FORWARD BY PETITIONER TO SUPPORT THE ARGUMENT THAT CONGRESS DID NOT
INTEND TO PUNISH USES SUCH AS THE ONE CHARGED HERE.  THERE IS NOTHING
IN THE LEGISLATIVE HISTORY TO INDICATE THAT CONGRESS CONSIDERED THE
QUESTION OF USE BY RETURNING CITIZENS.  OLD CRIMES, HOWEVER, MAY BE
COMMITTED UNDER NEW CONDITIONS.  OLD LAWS APPLY TO CHANGED SITUATIONS. 
FN8  THE REACH OF THE ACT IS NOT SUSTAINED OR OPPOSED BY THE FACT THAT
IT IS SOUGHT TO BRING NEW SITUATIONS UNDER ITS TERMS.  FN9  WHILE A
STATUTE SPEAKS FROM ITS ENACTMENT, EVEN A CRIMINAL STATUTE EMBRACES
EVERYTHING WHICH SUBSEQUENTLY FALLS WITHIN ITS SCOPE.  FN10  THE USE
HERE CHARGED UNDER THESE TESTS WAS CLEARLY WITHIN THE SCOPE OF THE
ACT.  THE PURPOSE OF THIS ACT WAS TO PUNISH THE USE OF PASSPORTS
OBTAINED BY FALSE STATEMENTS. 

THERE IS THE FURTHER CONTENTION THAT THE GOVERNMENT'S CONSTRUCTION OF
THE WORD "USE" WOULD MAKE CRIMINAL, UNDER OTHER SECTIONS OF THE ACT,
THE PRESENTATION OF EXPIRED PASSPORTS FOR THE PURPOSE OF IDENTIFYING
CITIZENS RETURNING FROM MEXICO, BERMUDA AND CANADA.  PETITIONER URGES
THAT SUCH USES, THOUGH FREQUENT AND APPARENTLY ACQUIESCED IN BY THE
AUTHORITIES, WOULD THEN VIOLATE SEC. 3, WHICH PROHIBITS A USE "IN
VIOLATION OF THE CONDITIONS OR RESTRICTIONS THEREIN CONTAINED," AND
ALSO SEC. 4, WHICH PROHIBITS THE USE OF A PASSPORT "VALIDLY ISSUED
WHICH HAS BECOME VOID BY THE OCCURRENCE OF ANY CONDITION THEREIN
PRESCRIBED INVALIDATING THE SAME."  THE QUESTION OF THE MEANING OF
OTHER SECTIONS IS NOT BEFORE US.  CONSIDERED SOLELY FROM THE STANDPOINT
OF THEIR ANALOGY TO SEC. 2, THE USE OF EXPIRED PASSPORTS TO IDENTIFY
THE HOLDER SEEMS ENTIRELY DIFFERENT FROM THE USE OF A PASSPORT OBTAINED
BY FALSE STATEMENTS.  THE VICE IN THE LATTER IS CONGENITAL.  ITS
WILLFUL USE IS PROHIBITED. 

PETITIONER POINTS OUT, HOWEVER, THAT THE USE MUST BE "WILLFULLY AND
KNOWINGLY."  IN HIS VIEW THIS MEANS A USE WHICH IS DISHONEST IN
ADDITION TO OR APART FROM THE DISHONESTY IN OBTAINING THE PASSPORT, AND
WHICH IS IN ITSELF EVIL "AS THE USE OF A PASSPORT TO INVOKE
FRAUDULENTLY THE PROTECTION OF THE UNITED STATES ABROAD."  FURTHER IT
IS SAID THIS EVIL MUST BE THE KIND OF EVIL WITHIN THE SPIRIT AND
INTENDMENT OF THE ACT.  BUT THE STATUTE PLAINLY DOES NOT PURPORT TO
PUNISH FRAUDULENT OR DISHONEST USE OTHER THAN SUCH AS IS INVOLVED IN
THE USE OF A PASSPORT DISHONESTLY OBTAINED.  NONE OF ITS WORDS SUGGEST
THAT FRAUDULENT USE IS AN ELEMENT OF THE CRIME.  THE STATUTE IS AIMED
AT THE PROTECTION OF THE INTEGRITY OF UNITED STATES PASSPORTS.  IT
PENALIZES BOTH PROCURING THE PASSPORT BY A FALSE STATEMENT AND ITS USE
WHEN SO PROCURED.  THE CRIME OF "USE" IS COMPLETE WHEN THE PASSPORT SO
OBTAINED IS USED WILLFULLY AND KNOWINGLY. 

READ IN ITS CONTEXT THE PHRASE "WILLFULLY AND KNOWINGLY," AS THE
TRIAL COURT CHARGED THE JURY, CAN BE TAKEN ONLY AS MEANING
"DELIBERATELY AND WITH KNOWLEDGE AND NOT SOMETHING WHICH IS MERELY
CARELESS OR NEGLIGENT OR INADVERTENT."  NO EXCEPTION WAS TAKEN TO THIS
INSTRUCTION.  THE POINT AT ISSUE ARISES BECAUSE A MOTION WAS DENIED TO
DISMISS THE INDICTMENT ON THE GROUND THAT "THE GOVERNMENT'S CASE IS
FATALLY DEFECTIVE IN THAT IT LACKS THE MOST ESSENTIAL INGREDIENT OF THE
ENTIRE CASE; NAMELY, THE CRIMINAL INTENT OF THE DEFENDANT AT THE TIME
OF THE ALLEGED ACT"; THAT THERE IS "NO PROOF THAT THERE WAS A KNOWING
AND WILLFUL USE TO GAIN ENTRY."  PETITIONER RELIES UPON UNITED STATES
V. MURDOCK.  FN11  THAT CASE AFFIRMED A REVERSAL OF CONVICTION FOR A
VIOLATION OF SEC. 1114(A) OF THE REVENUE ACT OF 1926 AND A LIKE SECTION
OF THE 1928 ACT.  THESE SECTIONS MADE IT A MISDEMEANOR FOR A TAXPAYER
TO "WILLFULLY" FAIL TO SUPPLY INFORMATION IN REGARD TO INCOME.  THE
TAXPAYER REFUSED THE INFORMATION ON THE GROUND OF PRIVILEGE FROM FEAR
OF SELF-INCRIMINATION.  AT THE TIME THE LAW UPON THE POINT WAS
UNCERTAIN.  THIS REASONABLE FEAR, THIS COURT HELD, ENTITLED THE
TAXPAYER TO REQUESTED INSTRUCTION ON HIS GOOD FAITH IN REFUSING TO
ANSWER.  THIS CLAIM OF CONSTITUTIONAL RIGHT IS QUITE DIFFERENT FROM THE
CLAIM HERE OF A RIGHT TO USE A PASSPORT OBTAINED BY FALSE
REPRESENTATION, CONTRARY TO THE EXPRESS WORDS OF THE STATUTE, BECAUSE
THERE WAS NO ULTERIOR EVIL PURPOSE IN MIND.  THE MURDOCK OPINION
RECOGNIZES, P. 394, THAT THE WORD "WILLFUL" OFTEN DENOTES AN
INTENTIONAL AS DISTINGUISHED FROM AN ACCIDENTAL ACT.  ONCE THE BASIC
WRONG UNDER THIS PASSPORT STATUTE IS COMPLETED, THAT IS THE SECURING OF
A PASSPORT BY A FALSE STATEMENT, ANY INTENTIONAL USE OF THAT PASSPORT
IN TRAVEL IS PUNISHABLE. 

OTHER SUGGESTIONS AS A BASIS FOR REVERSAL ARE MADE.  THESE DO NOT
REQUIRE PARTICULAR COMMENT.  AFFIRMED. 

FN1  40 STAT. 217, 227, TITLE IX: 

"SEC. 2.  WHOEVER SHALL WILLFULLY AND KNOWINGLY MAKE ANY FALSE
STATEMENT IN AN APPLICATION FOR PASSPORT WITH INTENT TO INDUCE OR
SECURE THE ISSUANCE OF A PASSPORT UNDER THE AUTHORITY OF THE UNITED
STATES, EITHER FOR HIS OWN USE OR THE USE OF ANOTHER, CONTRARY TO THE
LAWS REGULATING THE ISSUANCE OF PASSPORTS OR THE RULES PRESCRIBED
PURSUANT TO SUCH LAWS, OR WHOEVER SHALL WILLFULLY AND KNOWINGLY USE OR
ATTEMPT TO USE, OR FURNISH TO ANOTHER FOR USE, ANY PASSPORT THE ISSUE
OF WHICH WAS SECURED IN ANY WAY BY REASON OF ANY FALSE STATEMENT, SHALL
BE FINED NOT MORE THAN $2,000 OR IMPRISONED NOT MORE THAN FIVE YEARS OR
BOTH." 

BY THE ACT OF MARCH 28, 1940, THE MAXIMUM TERM OF IMPRISONMENT UNDER
THIS SECTION WAS INCREASED TO TEN YEARS.  54 STAT. 80. 

FN2  113 F.2D 97. 

FN3  REPORT OF THE ATTORNEY GENERAL (1916), P. 17. 

FN4  UNITED STATES V. AMERICAN TRUCKING ASSOCIATIONS, 310 U.S. 534,
543. 

FN5  H.R. 291, 65TH CONG. 

FN6  SINCE 1929, THE STATE DEPARTMENT HAS CARRIED SUBSTANTIALLY THE
FOLLOWING SUGGESTION IN ITS "NOTICE TO BEARERS OF PASSPORTS":  "22.  AN
AMERICAN CITIZEN LEAVING THE UNITED STATES FOR A COUNTRY WHERE
PASSPORTS ARE NOT REQUIRED IS NEVERTHELESS ADVISED TO CARRY A PASSPORT,
EXCEPT IN TRAVEL TO CANADA OR MEXICO.  THE PASSPORT MAY LATER SAVE THE
TIME AND INCONVENIENCE OF APPLYING FOR ONE ABROAD SHOULD THE HOLDER
DESIRE TO TRAVEL IN COUNTRIES WHERE PASSPORTS ARE REQUIRED.  IT WILL
ALSO ENABLE THE HOLDER TO ESTABLISH HIS AMERICAN CITIZENSHIP UPON HIS
RETURN TO THE UNITED STATES AND THUS FACILITATE HIS ENTRY.  AMERICAN
CITIZENS WHO LEAVE THE UNITED STATES WITHOUT PASSPORTS SHOULD CARRY
WITH THEM PROOF OF THEIR CITIZENSHIP, SUCH AS BIRTH, BAPTISM, OR
NATURALIZATION CERTIFICATES." 

FN7  40 STAT. 559. 

FN8  CF. CAIN V. BOWLBY, 114 F.2D 519, 522, AND CASES AND INSTANCES
THERE CITED; MAXWELL, INTERPRETATION OF STATUTES, (7TH ED. 1929) PP. 69
70. 

FN9  NEWMAN V. ARTHUR, 109 U.S. 132, 138; PICKHARDT V. MERRITT, 132
U.S. 252, 257; DE LIMA V. BIDWELL, 182 U.S. 1, 197. 

FN10  STATE V. BUTLER, 42 N.M. 271, 274; 76 P.2D 1149; COMMONWEALTH
V. TILLEY, 28 N.E.2D 245(MASS.); PEOPLE V. HINES, 284 N.Y. 93, 104; 29
N.E.2D 483.    FN11  290 U.S. 389, 394. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



WARSZOWER V. UNITED STATES, 312 U.S. 342 


NO. 338.  ARGUED JANUARY 16, 17, 1941.  - DECIDED FEBRUARY 17, 1941.  -
113 F.2D 100, AFFIRMED. 


1.  A CITIZEN OF THE UNITED STATES WHO WILLFULLY AND KNOWINGLY USES A
UNITED STATES PASSPORT WHICH WAS SECURED BY A FALSE STATEMENT, IS
GUILTY OF AN OFFENSE UNDER SEC. 2 OF THE PASSPORT TITLE OF THE ACT OF
JUNE 15, 1917, WHEN THE USE WAS FOR THE PURPOSE OF ESTABLISHING HIS
IDENTITY AND CITIZENSHIP AND CONSEQUENT RIGHT TO REENTER THIS COUNTRY
FROM ABROAD.  BROWDER V. UNITED STATES, ANTE, P. 335.  P. 343. 

2.  EVIDENCE CONSISTING OF A SHIP'S MANIFEST OF INCOMING UNITED
STATES CITIZENS WITH THEIR NAMES AND THE NUMBERS OF THEIR RESPECTIVE
PASSPORTS, AND THE TESTIMONY OF AN IMMIGRATION INSPECTOR AS TO HIS
PRACTICE OF EXAMINING THE PASSPORTS IN SUCH CASES, CHECKING THEIR
NUMBERS WITH THOSE ON THE MANIFEST,  - HELD SUFFICIENT TO GO TO THE
JURY ON THE QUESTION WHETHER THE PRISONER PRESENTED HIS PASSPORT ON
ENTERING THE COUNTRY.  P. 344. 

3.  STATEMENTS THAT WERE MADE BY AN ACCUSED BEFORE THE COMMISSION OF
THE CRIME CHARGED AND WHICH ARE INCONSISTENT WITH HIS INNOCENCE ARE
ADMISSIBLE IN EVIDENCE WITHOUT CORROBORATIVE PROOF.  P. 347. 

WARSZOWER V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 631, TO REVIEW THE AFFIRMANCE OF A SENTENCE
UNDER AN INDICTMENT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS SIMILAR TO BROWDER V. UNITED STATES, ANTE, P. 335.  THIS
PETITIONER ALSO WAS INDICTED FOR THE USE OF A PASSPORT FOR THE PURPOSE
OF ENTERING THE UNITED STATES, WHICH PASSPORT HAD BEEN SECURED BY FALSE
STATEMENTS IN THE APPLICATION FOR ITS ISSUE.  WE GRANTED CERTIORARI
BECAUSE OF THE CONTENTION THAT THIS USE OF THE PASSPORT WAS NOT
PROHIBITED BY SEC. 2, TITLE IX OF THE ACT OF JUNE 15, 1917, AND BECAUSE
OF A CONFLICT ON A RULE OF EVIDENCE, REFERRED TO BY THE CIRCUIT COURT
OF APPEALS. 

THE FALSE STATEMENTS CHARGED WERE WITH RESPECT TO PETITIONER'S NAME,
CITIZENSHIP, PLACE OF BIRTH AND RESIDENCE ABROAD AND THE USE RELIED
UPON WAS THE PRESENTATION OF THE PASSPORT TO AN IMMIGRATION INSPECTOR. 
A JURY CONVICTED PETITIONER, A SENTENCE OF TWO YEARS WAS IMPOSED AND
THAT JUDGMENT WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  FN1 

AS GROUNDS FOR REVERSAL PETITIONER URGES (1) THAT THE PRESENTATION OF
A WRONGFULLY HELD PASSPORT TO AN IMMIGRATION OFFICER UPON LANDING IS
NOT A USE WITHIN THE STATUTE; (2) THAT THE EVIDENCE OF THE USE WAS
INSUFFICIENT TO JUSTIFY THE SUBMISSION OF THE CASE TO THE JURY; AND (3)
THAT CONVICTION WAS OBTAINED BY THE USE OF ADMISSIONS BEFORE THE CRIME,
WITHOUT CORROBORATION, TO ESTABLISH NECESSARY ELEMENTS OF THE CHARGE. 

NOTHING NEED BE ADDED TO THE DISCUSSION IN THE BROWDER CASE OF THE
ILLEGALITY OF THIS USE.  THERE ARE NO MARKS OF DIFFERENTIATION. 

PROOF OF PRESENTATION.  - PETITIONER'S ARGUMENT THAT THE PROOF OF
PRESENTATION OF THE PASSPORT WAS INSUFFICIENT RESTS UPON THE TESTIMONY
OF THE INSPECTOR, WHICH WAS BASED ON THE MANIFEST OF UNITED STATES
CITIZENS ARRIVING ON THE S.S. NORMANDIE ON SEPTEMBER 30, 1937.  THE
MANIFEST CONTAINS A LIST OF NAMES, ACCOMPANIED BY PASSPORT NUMBERS AND
OTHER INFORMATION.  NEXT TO EACH NAME APPEARS A CHECK MARK BY THE
INSPECTOR.  THE LIST INCLUDES "ROBERT WIENER," THE HOLDER OF PASSPORT
NO. 332,207, WHICH IS THE PASSPORT ISSUED TO PETITIONER.  THE INSPECTOR
TESTIFIED THAT HE HAD NO INDEPENDENT RECOLLECTION OF THE ARRIVAL OF
THIS ROBERT WIENER, BUT THAT FROM LOOKING AT THE MANIFEST HE COULD SAY
THAT THE PASSPORT HAD BEEN PRESENTED TO HIM, BECAUSE "IT IS MY
INVARIABLE PRACTICE WHEN THE NUMBER OF THE PASSPORT APPEARS ON THE
MANIFEST TO ASK FOR THAT PASSPORT AND HAVE IT SHOWN TO ME  ...  BY THE
PASSENGER."  ON CROSS-EXAMINATION THE INSPECTOR STATED THAT HE HIMSELF
DID NOT MAKE ANY WRITING ON THE MANIFEST AS TO WHAT THE PEOPLE SHOWED
HIM.  THIS COLLOQUY THEN OCCURRED: 

"THE COURT.  ...  DO YOU MAKE ANY ENTRY ON THE MANIFEST WHEN A MAN
IDENTIFIES HIMSELF AS AN AMERICAN CITIZEN? 

THE WITNESS.  THE WHOLE MANIFEST IS OF AMERICAN CITIZENS. 

THE COURT.  AND WHEN THE MAN PRESENTED HIS PASSPORT WHAT DID YOU DO? 

THE WITNESS.  THAT CHECK MARK SHOWS HE WAS ADMITTED AS A UNITED
STATES CITIZEN. 

THE COURT.  ON A PASSPORT? 

THE WITNESS.  NOT NECESSARILY. 

THE COURT.  CAN YOU TELL US WHETHER HE HAD A PASSPORT? 

THE WITNESS.  FROM THE FACT THE NUMBER OF THE PASSPORT APPEARS
THERE. 

Q. AND YOU CHECKED - 

MR. FOWLER.  THAT IS OBJECTED TO. 

Q. DID YOU CHECK THE INFORMATION ON THE MANIFEST WITH INFORMATION IN
THE PASSPORT? 

A. THAT IS CORRECT." 

THE PETITIONER ASKS REVERSAL BECAUSE OF THE ANSWER "NOT NECESSARILY,"
CONTENDING THIS SHOWS THAT THE CHECK MARK DID NOT INESCAPABLY INDICATE
THE PRESENTATION OF A PASSPORT.  THE GOVERNMENT ARGUES THAT THE CHECK
MARK WAS INTENDED MERELY TO SHOW ADMISSION AS A CITIZEN AND THAT THE
LANGUAGE DOES NOT NULLIFY OR INDEED IMPUGN THE DIRECT ASSERTIONS OF THE
INSPECTOR.  WE ARE CLEAR THAT THIS TESTIMONY AS A WHOLE JUSTIFIED THE
SUBMISSION TO THE JURY AT ANY RATE AND ITS CONCLUSION THAT PETITIONER
ACTUALLY USED HIS PASSPORT IN SECURING ADMISSION TO THIS COUNTRY. 

CORROBORATION OF ADMISSIONS.  - THE PROSECUTION HAD THE BURDEN OF
PROVING THAT THE PASSPORT WAS OBTAINED BY THE USE OF FALSE STATEMENTS. 
AS THE TRIAL COURT INSTRUCTED THE JURY IT MIGHT CONVICT IF ANY ONE OF
THE STATEMENTS CHARGED IN THE INDICTMENT TO BE FALSE WAS FOUND FALSE,
IT IS NECESSARY BEFORE AFFIRMANCE IS JUSTIFIED TO DECIDE WHETHER THERE
WAS ADEQUATE EVIDENCE TO SUPPORT THE CHARGE OF FALSITY AS TO EACH OF
THE STATEMENTS.  PETITIONER CONTENDS THAT AS TO THE ALLEGEDLY FALSE
STATEMENTS OF AMERICAN CITIZENSHIP AND NO PRIOR RESIDENCE OUTSIDE THE
UNITED STATES, THERE WAS NO PROOF OF FALSITY EXCEPT ADMISSIONS TO THE
CONTRARY MADE BY PETITIONER PRIOR TO THE USE OF THE PASSPORT.  SUCH
ADMISSIONS, IT IS URGED, REQUIRE CORROBORATION.  THIS ARGUMENT IS DRAWN
FROM THE REQUIREMENT OF CORROBORATION AS TO CONFESSIONS AFTER THE
CRIME.  FN2  AS A COROLLARY, IT IS SAID THAT THE CORROBORATION MUST
REACH TO EACH ELEMENT OF THE CORPUS DELICTI.  FN3 

TO ESTABLISH THAT PETITIONER WAS NOT A CITIZEN OF THE UNITED STATES
AND THAT HE HAD RESIDED ABROAD, THE GOVERNMENT RELIED ON THE FOLLOWING
PROOF:  THE MANIFEST OF ALIEN PASSENGERS OF THE S. S. HAVERFORD, WHICH
ARRIVED AT PHILADELPHIA ON MARCH 27, 1914, STATED THAT WELWEL
WARSZOWER, AGE 21, WAS A CITIZEN OR SUBJECT OF RUSSIA, WHOSE LAST
PERMANENT RESIDENCE WAS IN VIKOLSK, RUSSIA, WHERE HIS FATHER LIVED;
THAT HE HAD NEVER BEEN IN THE UNITED STATES BEFORE; AND THAT HE HAD
BEEN BORN IN RADAJENKO, RUSSIA.  ALTHOUGH THE OFFICER WHO HAD EXAMINED
WARSZOWER ON THIS OCCASION WAS DEAD, THE BOARDING OFFICER TESTIFIED IT
WAS THE PRACTICE TO CHECK ALL ANSWERS ON THE MANIFEST WITH THE ALIEN
PERSONALLY BEFORE ALLOWING HIM TO ENTER.  THREE YEARS LATER, ON JUNE 5,
1917, PETITIONER REGISTERED FOR THE DRAFT UNDER THE NAME OF WILLIAM
WEINER"; HE STATED HE WAS AN ALIEN BORN IN RUSSIA ON SEPTEMBER 5, 1893,
AND A CITIZEN OR SUBJECT OF RUSSIA.  PETITIONER FURNISHED THE SAME
INFORMATION IN A DRAFT QUESTIONNAIRE RETURNED ON DECEMBER 31, 1917,
WHERE HE ALSO STATED THAT HE SPOKE RUSSIAN, THAT HE ARRIVED IN THIS
COUNTRY AT PHILADELPHIA ON MARCH 28, 1914, ON THE S.S. HAVERFORD, THAT
HIS PARENTS HAD NOT BEEN NATURALIZED, THAT HE HAD NOT TAKEN OUT FIRST
PAPERS, AND THAT HE WAS WILLING TO RETURN TO RUSSIA AND ENTER ITS
MILITARY SERVICE.  IN 1932, PREPARATORY TO TRAVELING ABROAD, PETITIONER
APPLIED FOR A REENTRY PERMIT, WHICH IS REQUIRED ONLY OF ALIENS.  TO
SUPPORT HIS APPLICATION HE SHOWED THE INSPECTION CARD ISSUED TO HIM IN
1914 UPON HIS ARRIVAL IN PHILADELPHIA, AND STATED THAT HE WAS BORN ON
SEPTEMBER 5, 1893, AT KIEV, RUSSIA, WHICH WAS HIS LAST PERMANENT
RESIDENCE BEFORE HIS ARRIVAL IN PHILADELPHIA.  THE GOVERNMENT ALSO
SHOWED THAT PETITIONER HAD NEVER APPLIED FOR NATURALIZATION UNDER HIS
OWN NAME, OR THE NAMES "WEINER" OR "WIENER," WHICH HE ON OCCASION
USED.  IN HIS 1936 APPLICATION FOR A PASSPORT IN THE NAME OF ROBERT
WILLIAM WIENER, PETITIONER SUBMITTED A CERTIFIED TRANSCRIPT OF AN ENTRY
IN THE ATLANTIC CITY BIRTH RECORDS THAT A PERSON OF THAT NAME WAS BORN
THERE SEPTEMBER 5, 1896, BUT AT THE TRIAL THE GOVERNMENT PROVED THE
ENTRY A FORGERY. 

THE RULE REQUIRING CORROBORATION OF CONFESSIONS PROTECTS THE
ADMINISTRATION OF THE CRIMINAL LAW AGAINST ERRORS IN CONVICTIONS BASED
UPON UNTRUE CONFESSIONS ALONE.  WHERE THE INCONSISTENT STATEMENT WAS
MADE PRIOR TO THE CRIME THIS DANGER DOES NOT EXIST.  FN4  THEREFORE WE
ARE OF THE VIEW THAT SUCH ADMISSIONS DO NOT NEED TO BE CORROBORATED. 
THEY CONTAIN NONE OF THE INHERENT WEAKNESSES OF CONFESSIONS OR
ADMISSIONS AFTER THE FACT.  CASES IN THE CIRCUITS ARE CITED BY
PETITIONER TO THE CONTRARY.  IN GULOTTA V. UNITED STATES,  FN5  THE
DECISION TURNED ON THE SIMILARITY OF CONFESSIONS AND ADMISSIONS RATHER
THAN UPON ANY DIFFERENCES BETWEEN ADMISSIONS BEFORE AND AFTER THE
FACT.  IN DUNCAN V. UNITED STATES  FN6  AND IN GORDNIER V. UNITED
STATES  FN7 THE CONCLUSION WAS REACHED WITHOUT ANY COMMENT UPON THIS
DIFFERENCE.  OUR CONSIDERATION OF THE EFFECT OF ADMISSIONS PRIOR TO THE
CRIME LEADS US TO THE OTHER CONCLUSION.  FN8 

THE LAW REQUIRES THAT A JURY BE CONVINCED BEYOND A REASONABLE DOUBT
OF THE DEFENDANT'S GUILT.  AN UNCORROBORATED CONFESSION OR EVIDENCE OF
PERJURY, GIVEN BY ONE WITNESS ONLY,  FN9  DOES NOT AS A MATTER OF LAW
ESTABLISH BEYOND A REASONABLE DOUBT THE COMMISSION OF A CRIME, BUT
THESE ARE EXCEPTIONS TO THE NORMAL REQUIREMENT THAT DISPUTED QUESTIONS
OF FACT ARE TO BE SUBMITTED TO THE JURY UNDER APPROPRIATE
INSTRUCTIONS.  IN THIS CASE THE EARLIER STATEMENTS OF BIRTH AND
THEREFORE NECESSARILY OF RESIDENCE OUTSIDE OF THE UNITED STATES, IF
BELIEVED BY THE JURY, PROVE THE FALSITY OF THE STATEMENTS TO THE
CONTRARY IN THE APPLICATION.  WHERE THE CRIME CHARGED IS A FALSE
STATEMENT AND WHERE IT FINDS ITS ONLY PROOF IN ADMISSIONS TO THE
CONTRARY PRIOR TO THE ACT SET OUT IN THE INDICTMENT, IT MAY BE UNLIKELY
THAT A JURY WILL CONCLUDE THAT THE FALSITY OF THE LATER STATEMENT IS
PROVEN BEYOND A REASONABLE DOUBT, BUT SUCH EVIDENCE JUSTIFIES
SUBMISSION OF THE QUESTION TO THEM. 

IN THIS PRESENT CASE THERE WAS OTHER EVIDENCE OF THE FALSITY OF THE
DISPUTED STATEMENTS IN THE APPLICATION.  THE MANIFEST OF THE S. S.
HAVERFORD SHOWED PETITIONER'S ARRIVAL AND CLASSIFICATION AS AN ALIEN AT
PHILADELPHIA IN 1914.  THE FORGED BIRTH CERTIFICATE ADDS TO THE PROOF
OF FOREIGN BIRTH BY SHOWING AN EFFORT TO ESTABLISH AMERICAN NATIVITY BY
FALSE MEANS, AND THE GOVERNMENT'S PROOF OF THE ABSENCE OF ANY ATTEMPT
AT NATURALIZATION SUPPORTS THE ALLEGATION OF FALSE STATEMENT AS TO
CITIZENSHIP.  AFFIRMED. 

FN1  113 F.2D 100. 

FN2  WHARTON, CRIMINAL LAW (12TH ED.)  SECS.  357, 359; DAECHE V.
UNITED STATES, 250 F. 566; WIGMORE, EVIDENCE (3RD ED.)  SECS.  2070-71;
CHAMBERLAYNE, MODERN LAW OF EVIDENCE SEC. 1598; UNDERHILL, CRIMINAL
EVIDENCE (4TH ED.)  P. 42. 

FN3  CF. FORTE V. UNITED STATES, 68 APP. D.C. 111; 94 F.2D 236. 

FN4  WIGMORE, SUPRA. 

FN5  113 F.2D 683. 

FN6  68 F.2D 136. 

FN7  261 F. 910. 

FN8  CF. MILES V. UNITED STATES, 103 U.S. 304. 

FN9  PHAIR V. UNITED STATES, 60 F.2D 953.  CF. UNITED STATES V.
HARRIS, 311 U.S. 292. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



TRADE COMM'N V. BUNTE BROS., 312 U.S. 349 


NO. 85.  ARGUED JANUARY 6, 1941.  - DECIDED FEBRUARY 17, 1941.  - 110
F.2D 412, AFFIRMED. 


1.  THE FEDERAL TRADE COMMISSION IS WITHOUT AUTHORITY UNDER SEC. 5 OF
THE FEDERAL TRADE COMMISSION ACT TO PREVENT A CANDY MANUFACTURER WITHIN
A STATE FROM SELLING, WHOLLY WITHIN THAT STATE, CANDY IN SO-CALLED
"BREAK AND TAKE" ASSORTMENTS.  P. 350. 

2.  SUCH SELLING IS NOT A METHOD OF COMPETITION "IN (INTERSTATE)
COMMERCE" WITHIN THE MEANING OF THE ACT, AND THEREFORE NOT WITHIN THE
JURISDICTION OF THE COMMISSION, EVEN THOUGH IT BE IN COMPETITION WITH
AND AFFECT THE SALES OF OUT-OF-STATE MANUFACTURERS WHO ARE BARRED FROM
SELLING "BREAK AND TAKE" ASSORTMENTS IN INTERSTATE COMMERCE AS AN
UNFAIR METHOD OF COMPETITION.  P. 351. 

3.  THE PHRASE "UNFAIR METHODS OF COMPETITION IN (INTERSTATE)
COMMERCE," AS USED IN THE FEDERAL TRADE COMMISSION ACT, IS NOT TO BE
CONSTRUED AS THOUGH IT MEANT "UNFAIR METHODS OF COMPETITION IN ANY WAY
AFFECTING INTERSTATE COMMERCE."  P. 355. 

FEDERAL TRADE COMMISSION V. BUNTE BROTHERS, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 311 U.S. 624, TO REVIEW A JUDGMENT SETTING ASIDE AN ORDER
OF THE FEDERAL TRADE COMMISSION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE FEDERAL TRADE COMMISSION FOUND THAT BUNTE BROTHERS, CANDY
MANUFACTURERS IN ILLINOIS, SOLD PRODUCTS THERE IN WHAT THE TRADE CALLS
"BREAK AND TAKE" PACKAGES, WHICH MAKES THE AMOUNT THE PURCHASER
RECEIVES DEPENDENT UPON CHANCE; AND THAT THEREBY IT WAS ENABLED IN THE
ILLINOIS MARKET TO COMPETE UNFAIRLY WITH MANUFACTURERS OUTSIDE OF
ILLINOIS WHO COULD NOT INDULGE IN THIS DEVICE BECAUSE THE TRADE
COMMISSION HAS BARRED "BREAK AND TAKE" PACKAGES AS AN "UNFAIR METHOD OF
COMPETITION."  FEDERAL TRADE COMMISSION ACT, SEC. 5(A), 38 STAT. 719,
AS AMENDED, 15 U.S.C. SEC. 45, FEDERAL TRADE COMM'N V. KEPPEL & BRO.,
291 U.S. 304.  DEEMING THE "BREAK AND TAKE" SALES UNFAIR METHODS OF
COMPETITION UNDER SEC. 5, EVEN THOUGH THE SALES TOOK PLACE WHOLLY
WITHIN ILLINOIS, THE COMMISSION FORBADE BUNTE BROTHERS FURTHER USE OF
THE DEVICE.  THE CIRCUIT COURT OF APPEALS SET ASIDE THE ORDER, 110 F.2D
412, AND WE BROUGHT THE CASE HERE BECAUSE THE ISSUE AT STAKE PRESENTS
AN IMPORTANT ASPECT OF THE INTERPLAY OF STATE AND FEDERAL AUTHORITY. 
311 U.S. 624. 

THE SCOPE OF SEC. 5 IS IN CONTROVERSY.  FN1  THAT SECTION, THE COURT
BELOW HELD, AUTHORIZES THE COMMISSION TO PROCEED ONLY AGAINST BUSINESS
PRACTICES EMPLOYED IN INTERSTATE COMMERCE.  THE COMMISSION URGES THAT
ITS POWERS ARE NOT SO RESTRICTED, THAT IT MAY ALSO PROSCRIBE UNFAIR
METHODS USED IN INTRASTATE SALES WHEN THESE RESULT IN A HANDICAP TO
INTERSTATE COMPETITORS. 

WHILE ONE MAY NOT END WITH THE WORDS OF A DISPUTED STATUTE, ONE
CERTAINLY BEGINS THERE.  "UNFAIR METHODS OF COMPETITION IN COMMERCE"
ARE THE CONCERN OF SEC. 5, AND THE COMMISSION IS "DIRECTED TO PREVENT
PERSONS  ...  FROM USING UNFAIR METHODS OF COMPETITION IN COMMERCE
..."  THE "COMMERCE" IN WHICH THESE METHODS ARE BARRED IS INTERSTATE
COMMERCE.  FN2  NEITHER ORDINARY ENGLISH SPEECH NOR THE CONSIDERED
LANGUAGE OF LEGISLATION WOULD APTLY DESCRIBE THE SALES BY BUNTE
BROTHERS OF ITS "BREAK AND TAKE" ASSORTMENTS IN ILLINOIS AS "USING
UNFAIR METHODS OF COMPETITION IN (INTERSTATE) COMMERCE."  WHEN IN ORDER
TO PROTECT INTERSTATE COMMERCE CONGRESS HAS REGULATED ACTIVITIES WHICH
IN ISOLATION ARE MERELY LOCAL, IT HAS NORMALLY CONVEYED ITS PURPOSE
EXPLICITLY.  SEE FOR EXAMPLE, NATIONAL LABOR RELATIONS ACT, SECS. 2(7),
9(C), 10(A), 49 STAT. 450, 453, 29 U.S.C. SECS. 152(7), 159(C), 160(A);
BITUMINOUS COAL ACT, SEC. 4-A, 50 STAT. 83, 15 U.S.C. SEC. 834; FEDERAL
EMPLOYERS' LIABILITY ACT, SEC. 1, 35 STAT. 65, AS AMENDED, 53 STAT.
1404, 45 U.S.C. SEC. 51.  TO BE SURE, THE CONSTRUCTION OF EVERY SUCH
STATUTE PRESENTS A UNIQUE PROBLEM IN WHICH WORDS DERIVE VITALITY FROM
THE AIM AND NATURE OF THE SPECIFIC LEGISLATION.  BUT BEARING IN MIND
THAT IN ASCERTAINING THE SCOPE OF CONGRESSIONAL LEGISLATION A DUE
REGARD FOR A PROPER ADJUSTMENT OF THE LOCAL AND NATIONAL INTERESTS IN
OUR FEDERAL SCHEME MUST ALWAYS BE IN THE BACKGROUND, WE OUGHT NOT TO
FIND IN SEC. 5 RADIATIONS BEYOND THE OBVIOUS MEANING OF LANGUAGE UNLESS
OTHERWISE THE PURPOSE OF THE ACT WOULD BE DEFEATED.  MINNESOTA RATE
CASES, 230 U.S. 352, 398-412. 

THAT FOR A QUARTER CENTURY THE COMMISSION HAS MADE NO SUCH CLAIM IS A
POWERFUL INDICATION THAT EFFECTIVE ENFORCEMENT OF THE TRADE COMMISSION
ACT IS NOT DEPENDENT ON CONTROL OVER INTRASTATE TRANSACTIONS.  FN3
AUTHORITY ACTUALLY GRANTED BY CONGRESS OF COURSE CANNOT EVAPORATE
THROUGH LACK OF ADMINISTRATIVE EXERCISE.  BUT JUST AS ESTABLISHED
PRACTICE MAY SHED LIGHT ON THE EXTENT OF POWER CONVEYED BY GENERAL
STATUTORY LANGUAGE, SO THE WANT OF ASSERTION OF POWER BY THOSE WHO
PRESUMABLY WOULD BE ALERT TO EXERCISE IT, IS EQUALLY SIGNIFICANT IN
DETERMINING WHETHER SUCH POWER WAS ACTUALLY CONFERRED.  SEE NORWEGIAN
NITROGEN CO. V. UNITED STATES, 288 U.S. 294, 315.  THIS PRACTICAL
CONSTRUCTION OF THE ACT BY THOSE ENTRUSTED WITH ITS ADMINISTRATION IS
REINFORCED BY THE COMMISSION'S UNSUCCESSFUL ATTEMPT IN 1935 TO SECURE
FROM CONGRESS AN EXPRESS GRANT OF AUTHORITY OVER TRANSACTIONS
"AFFECTING" COMMERCE IN ADDITION TO ITS CONTROL OF PRACTICES IN
COMMERCE.  S. REP. NO. 46, 74TH CONG., 1ST SESS.  THESE CIRCUMSTANCES
ARE ALL THE MORE SIGNIFICANT IN THAT DURING THE WHOLE OF THE
COMMISSION'S LIFE THE SO-CALLED SHREVEPORT DOCTRINE OPERATED IN THE
REGULATORY FIELD COMMITTED TO THE INTERSTATE COMMERCE COMMISSION.  AND
IT IS THAT DOCTRINE WHICH GIVES THE CONTENTION OF THE TRADE COMMISSION
ITS STRONGEST SUPPORT. 

TRANSLATION OF AN IMPLICATION DRAWN FROM THE SPECIAL ASPECTS OF ONE
STATUTE TO A TOTALLY DIFFERENT STATUTE IS TREACHEROUS BUSINESS.  THE
INTERSTATE COMMERCE ACT AND THE FEDERAL TRADE COMMISSION ACT ARE WIDELY
DISPARATE IN THEIR HISTORIC SETTINGS, IN THE ENTERPRISES WHICH THEY
AFFECT, IN THE RANGE OF CONTROL THEY EXERCISE, AND IN THE RELATION OF
THESE CONTROLS TO THE FUNCTIONING OF THE FEDERAL SYSTEM.  WE NEED NOT
AT THIS LATE DAY REHEARSE THE CONSIDERATIONS THAT LED TO THE SHREVEPORT
DECISION.  HOUSTON, E. & W.T. RY. CO. V. UNITED STATES, 234 U.S. 342. 
THE NUB OF IT, IN THE LANGUAGE OF CHIEF JUSTICE TAFT, LAY IN THE
RELATION BETWEEN INTRASTATE AND INTERSTATE RAILROAD TRAFFIC:
"EFFECTIVE CONTROL OF THE ONE MUST EMBRACE SOME CONTROL OVER THE OTHER
IN VIEW OF THE BLENDING OF BOTH IN ACTUAL OPERATION.  THE SAME RAILS
AND THE SAME CARS CARRY BOTH.  THE SAME MEN CONDUCT THEM."  WISCONSIN
RAILROAD COMM'N V. CHICAGO, B. & Q.R. CO., 257 U.S. 563, 588.  AND SO
WHEN THE INTERSTATE COMMERCE COMMISSION FOUND THAT THE INTRASTATE RATES
OF A CARRIER SUBJECT TO THE ACT IN EFFECT OPERATED AS A DISCRIMINATION
AGAINST ITS INTERSTATE TRAFFIC, THIS COURT SUSTAINED THE POWER OF THE
COMMISSION TO BRING THE TWO RATES INTO HARMONIOUS RELATION AND THEREBY
TO TERMINATE THE UNLAWFUL DISCRIMINATION.  CONGRESS IN 1920 REVISED THE
INTERSTATE COMMERCE ACT AND EXPLICITLY CONFIRMED THIS POWER OF THE
COMMERCE COMMISSION.  41 STAT. 484, 49 U.S.C. SEC. 13(4). 

THERE IS THE WIDEST DIFFERENCE IN PRACTICAL OPERATION BETWEEN THE
CONTROL OVER LOCAL TRAFFIC INTIMATELY CONNECTED WITH INTERSTATE TRAFFIC
AND THE REGULATORY AUTHORITY HERE ASSERTED.  UNLIKE THE RELATIVELY
PRECISE SITUATION PRESENTED BY RATE DISCRIMINATION, "UNFAIR
COMPETITION" WAS DESIGNED BY CONGRESS AS A FLEXIBLE CONCEPT WITH
EVOLVING CONTENT.  FEDERAL TRADE COMM'N V. KEPPEL & BRO., SUPRA, AT 311
312.  IT TOUCHES THE GREATEST VARIETY OF UNRELATED ACTIVITIES.  THE
TRADE COMMISSION IN ITS REPORT FOR 1939 LISTS AS "UNFAIR COMPETITION"
THIRTY-ONE DIVERSE TYPES OF BUSINESS PRACTICES WHICH RUN THE GAMUT FROM
BRIBING EMPLOYEES OF PROSPECTIVE CUSTOMERS TO SELLING BELOW COST FOR
HINDERING COMPETITION.  FN4  THE CONSTRUCTION OF SEC. 5 URGED BY THE
COMMISSION WOULD THUS GIVE A FEDERAL AGENCY PERVASIVE CONTROL OVER
MYRIADS OF LOCAL BUSINESSES IN MATTERS HERETOFORE TRADITIONALLY LEFT TO
LOCAL CUSTOM OR LOCAL LAW.  SUCH CONTROL BEARS NO RESEMBLANCE TO THE
STRICTLY CONFINED AUTHORITY GROWING OUT OF RAILROAD RATE
DISCRIMINATION.  AN INROAD UPON LOCAL CONDITIONS AND LOCAL STANDARDS OF
SUCH FAR-REACHING IMPORT AS IS INVOLVED HERE, OUGHT TO AWAIT A CLEARER
MANDATE FROM CONGRESS.  THE PROBLEM NOW BEFORE US IS VERY DIFFERENT
FROM THAT WHICH WAS RECENTLY PRESENTED BY UNITED STATES V. DARBY, ANTE,
P. 100.  WE HAD THERE TO CONSIDER THE FULL SCOPE OF THE CONSTITUTIONAL
POWER OF CONGRESS UNDER THE COMMERCE CLAUSE IN RELATION TO THE SUBJECT
MATTER OF THE FAIR LABOR STANDARDS ACT.  THIS CASE PRESENTS THE NARROW
QUESTION OF WHAT CONGRESS DID, NOT WHAT IT COULD DO.  AND WE MERELY
HOLD THAT TO READ "UNFAIR METHODS OF COMPETITION IN (INTERSTATE)
COMMERCE" AS THOUGH IT MEANT "UNFAIR METHODS OF COMPETITION IN ANY WAY
AFFECTING INTERSTATE COMMERCE," REQUIRES, IN VIEW OF ALL THE RELEVANT
CONSIDERATIONS, MUCH CLEARER MANIFESTATION OF INTENTION THAN CONGRESS
HAS FURNISHED.  AFFIRMED. 

FN1  "SEC.  5.  (A)  UNFAIR METHODS OF COMPETITION IN COMMERCE, AND
UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN COMMERCE, ARE HEREBY DECLARED
UNLAWFUL. 

"THE COMMISSION IS HEREBY EMPOWERED AND DIRECTED TO PREVENT PERSONS,
PARTNERSHIPS, OR CORPORATIONS  ...  FROM USING UNFAIR METHODS OF
COMPETITION IN COMMERCE AND UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN
COMMERCE." 

FN2  "SEC.  4.  THE WORDS DEFINED IN THIS SECTION SHALL HAVE THE
FOLLOWING MEANING WHEN FOUND IN THIS ACT, TO WIT: 

"'COMMERCE' MEANS COMMERCE AMONG THE SEVERAL STATES OR WITH FOREIGN
NATIONS, OR IN ANY TERRITORY OF THE UNITED STATES OR IN THE DISTRICT OF
COLUMBIA, OR BETWEEN ANY SUCH TERRITORY AND ANOTHER, OR BETWEEN ANY
SUCH TERRITORY AND ANY STATE OR FOREIGN NATION, OR BETWEEN THE DISTRICT
OF COLUMBIA AND ANY STATE OR TERRITORY OR FOREIGN NATION." 

FN3  THE COMMISSION MAKES NO CLAIM OF A CONTRARY ADMINISTRATIVE
PRACTICE.  THE CASES WHICH IT CITES IN NO WAY MITIGATE WHAT IS STATED
IN THE TEXT OF THE OPINION.  (1) COUNSEL FOR THE COMMISSION APPARENTLY
ARGUED FOR RECOGNITION OF THE POWER CLAIMED HERE IN CANFIELD OIL CO. V.
FEDERAL TRADE COMM'N, 274 F. 571, BUT THE COMMISSION HAD MADE NO
FINDINGS OF DISCRIMINATION AGAINST COMMERCE AND HAD ONLY FOUND THAT THE
OIL COMPANY WAS ENGAGED IN COMMERCE.  (2) THE JURISDICTION SUSTAINED IN
CHAMBER OF COMMERCE OF MINNEAPOLIS V. FEDERAL TRADE COMM'N, 13 F.2D
673, WAS VERY DIFFERENT FROM THAT CLAIMED HERE.  IT RESTED ON THE FACT
THAT THE CHAMBER CONDUCTED A MARKET FOR GRAIN IN THE CURRENT OF
INTERSTATE COMMERCE.  SEE CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1,
AND CASES CITED.  (3) THE ORDER OF THE COMMISSION REVIEWED IN
CALIFORNIA RICE INDUSTRY V. FEDERAL TRADE COMM'N, 102 F.2D 716,
RESULTED FROM PROCEEDINGS INSTITUTED MORE THAN A YEAR AFTER THIS
PROCEEDING AGAINST BUNTE BROTHERS HAD BEGUN. 

FN4  REPORT, PP. 83, 88.  AND SEE THESE ADDITIONAL EXAMPLES (PP. 83,
85, 89): 

"6.  MAKING FALSE AND DISPARAGING STATEMENTS RESPECTING COMPETITORS'
PRODUCTS AND BUSINESS, IN SOME CASES UNDER THE GUISE OF OSTENSIBLY
DISINTERESTED AND SPECIALLY INFORMED SOURCES OR THROUGH PURPORTED
SCIENTIFIC, BUT IN FACT MISLEADING, DEMONSTRATIONS OR TESTS; AND MAKING
FALSE AND MISLEADING REPRESENTATIONS WITH RESPECT TO COMPETITORS'
PRODUCTS, SUCH AS THAT SELLER'S PRODUCT IS COMPETITOR'S, AND THROUGH
USE OF SUCH PRACTICES AS DECEPTIVE SIMULATION OF COMPETITOR'S COUNTER
DISPLAY CATALOGS OR TRADE NAMES; AND THAT COMPETITOR'S BUSINESS HAS
BEEN DISCONTINUED, AND THAT SELLER IS SUCCESSOR THERETO OR PURCHASER
AND OWNER THEREOF." 

"10.  SELLING REBUILT, SECOND-HAND, RENOVATED, OR OLD PRODUCTS OR
ARTICLES MADE FROM USED OR SECOND-HAND MATERIALS AS AND FOR NEW." 

"19.  USING CONTAINERS OSTENSIBLY OF THE CAPACITY CUSTOMARILY
ASSOCIATED IN THE MIND OF THE GENERAL PURCHASING PUBLIC WITH STANDARD
WEIGHTS OR QUANTITIES OF THE PRODUCT THEREIN CONTAINED, OR USING SUCH
STANDARD CONTAINERS ONLY PARTIALLY FILLED TO CAPACITY, SO AS TO MAKE IT
APPEAR TO THE PURCHASER THAT HE IS RECEIVING THE STANDARD WEIGHT OR
QUANTITY." 

"30.  FAILING AND REFUSING TO DEAL JUSTLY AND FAIRLY WITH CUSTOMERS
IN CONSUMMATING TRANSACTIONS UNDERTAKEN, THROUGH SUCH PRACTICES AS
REFUSING TO CORRECT MISTAKES IN FILLING ORDERS, OR TO MAKE PROMISED
ADJUSTMENTS OR REFUNDS, AND RETAINING, WITHOUT REFUND, GOODS RETURNED
FOR EXCHANGE OR ADJUSTMENT, AND ENFORCING, NOTWITHSTANDING AGENTS'
ALTERATIONS, PRINTED TERMS OF PURCHASE CONTRACTS, AND EXACTING PAYMENTS
IN EXCESS OF CUSTOMERS' COMMITMENTS." 

"31.  SHIPPING PRODUCTS AT MARKET PRICES TO ITS CUSTOMERS OR
PROSPECTIVE CUSTOMERS OR TO THE CUSTOMERS OR PROSPECTIVE CUSTOMERS OF
COMPETITORS WITHOUT AN ORDER AND THEN INDUCING OR ATTEMPTING BY VARIOUS
MEANS TO INDUCE THE CONSIGNEES TO ACCEPT AND PURCHASE SUCH
CONSIGNMENTS." 

MR. JUSTICE DOUGLAS, DISSENTING. 

IN MY OPINION THE JUDGMENT SHOULD BE REVERSED. 

THE COMMISSION FOUND THAT RESPONDENT'S "USE OF CHANCE ASSORTMENTS IN
THE SALE AND DISTRIBUTION OF ITS CANDIES IN ILLINOIS HAS A DIRECT AND
POWERFUL BURDENSOME EFFECT UPON INTERSTATE COMMERCE IN CANDIES FROM
OTHER STATES TO THE STATE OF ILLINOIS, AND GIVES RESPONDENT AN UNDUE
AND UNREASONABLE PREFERENCE OVER COMPETITORS LOCATED IN OTHER STATES." 
THE VALIDITY OF THAT FINDING AND OF THE COMMISSION'S CONCLUSION THAT
RESPONDENT'S PRACTICES CONSTITUTE UNFAIR METHODS OF COMPETITION ARE NOT
IN ISSUE.  THE ONLY QUESTION PRESENTED BY THIS PETITION FOR CERTIORARI
IS WHETHER RESPONDENT'S PRACTICES CONSTITUTE UNFAIR METHODS OF
COMPETITION "IN COMMERCE" WITHIN THE MEANING OF SEC. 5(A) OF THE
FEDERAL TRADE COMMISSION ACT. 

I THINK THEY DO. 

UNFAIR COMPETITION INVOLVES NOT ONLY AN OFFENDER BUT ALSO A VICTIM. 
HERE SOME OF THE VICTIMS OF THE UNFAIR METHODS OF COMPETITION ARE
ENGAGED IN INTERSTATE COMMERCE.  THE FACT THAT THE ACTS OF THE OFFENDER
ARE INTRASTATE IS IMMATERIAL.  THE PURPOSE OF THE ACT IS TO PROTECT
INTERSTATE COMMERCE AGAINST SPECIFIED TYPES OF INJURY.  SO FAR AS THE
JURISDICTION OF THE COMMISSION IS CONCERNED, IT IS THE EXISTENCE OF
THAT INJURY TO INTERSTATE COMMERCE NOT THE INTERSTATE OR INTRASTATE
CHARACTER OF THE CONDUCT CAUSING THE INJURY WHICH IS IMPORTANT.  AN
UNFAIR METHOD OF COMPETITION IS "IN" INTERSTATE COMMERCE NOT ONLY WHEN
IT HAS AN INTERSTATE ORIGIN BUT ALSO WHEN IT HAS A DIRECT INTERSTATE
IMPACT.  RESPONDENT IS "USING" UNFAIR METHODS OF COMPETITION "IN"
INTERSTATE COMMERCE WHEN THE DIRECT EFFECT OF ITS CONDUCT IS TO BURDEN,
STIFLE, OR IMPAIR THAT COMMERCE.    UNDER THE SHERMAN ACT (26 STAT.
209) A CONTRACT OR CONSPIRACY MAY BE "IN RESTRAINT OF TRADE OR COMMERCE
AMONG THE SEVERAL STATES" EVEN THOUGH THE ACTS OR CONDUCT ARE
INTRASTATE.  SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 397; UNITED
STATES V. PATTEN, 226 U.S. 525, 541-543; STANDARD OIL CO. V. UNITED
STATES, 283 U.S. 163, 168-169.  SEC. 5 OF THE FEDERAL TRADE COMMISSION
ACT IS "SUPPLEMENTARY" TO THE SHERMAN ACT.  FEDERAL TRADE COMM'N V.
RALADAM CO., 283 U.S. 643, 647.  LIKE THE SHERMAN ACT IT SEEKS "TO
PROTECT THE PUBLIC FROM ABUSES ARISING IN THE COURSE OF COMPETITIVE
INTERSTATE AND FOREIGN TRADE.  ...  THE PARAMOUNT AIM OF THE ACT IS THE
PROTECTION OF THE PUBLIC FROM THE EVILS LIKELY TO RESULT FROM THE
DESTRUCTION OF COMPETITION OR THE RESTRICTION OF IT IN A SUBSTANTIAL
DEGREE."  FEDERAL TRADE COMM'N V. RALADAM CO., SUPRA, PP. 647-648.  AND
AS THIS COURT SAID IN FEDERAL TRADE COMM'N V. BEECH-NUT PACKING CO.,
257 U.S. 441, 453, THE DECLARATION OF PUBLIC POLICY CONTAINED IN THE
SHERMAN ACT IS "TO BE CONSIDERED IN DETERMINING WHAT ARE UNFAIR METHODS
OF COMPETITION, WHICH THE FEDERAL TRADE COMMISSION IS EMPOWERED TO
CONDEMN AND SUPPRESS."  FOR THE FEDERAL TRADE COMMISSION ACT
"UNDOUBTEDLY WAS AIMED AT ALL THE FAMILIAR METHODS OF LAW VIOLATION
WHICH PROSECUTIONS UNDER THE SHERMAN ACT HAD DISCLOSED."  FEDERAL TRADE
COMM'N V. KEPPEL & BRO., 291 U.S. 304, 310. 

THAT HISTORY, OF COURSE, DOES NOT GIVE US LICENSE TO DISREGARD PLAIN
AND UNAMBIGUOUS LIMITATIONS ON THE POWER OF THE COMMISSION.  BUT IT
DOES ADMONISH US TO CONSTRUE ONE OF A SERIES OF LEGISLATIVE ACTS
DEALING WITH A COMMON OR RELATED PROBLEM IN LIGHT OF THE INTEGRATED
STATUTORY SCHEME.  SEE UNITED STATES V. HUTCHESON, ANTE, P. 219.  IT
WARNS US NOT TO WHITTLE AWAY ADMINISTRATIVE POWER BY RESOLVING AN
AMBIGUITY AGAINST THE EXISTENCE OF THAT POWER WHERE THE FULL ARSENAL OF
THAT POWER IS NECESSARY TO COPE WITH THE EVIL AT HAND.  THE EVIL HERE
IS DIRECT, INJURIOUS DISCRIMINATION AGAINST INTERSTATE COMMERCE.  THE
COMMISSION HAS ISSUED ORDERS AGAINST SOME 120 OF RESPONDENT'S
COMPETITORS PROHIBITING THEM FROM SELLING CHANCE ASSORTMENTS OF CANDY
IN INTERSTATE COMMERCE.  UNDER THIS DECISION RESPONDENT MAY CONTINUE TO
USE THIS SAME UNFAIR METHOD OF COMPETITION TO INCREASE ITS BUSINESS AT
THE EXPENSE OF THOSE WHO SELL IN INTERSTATE COMMERCE AND WHO ARE NOT
FREE TO EMPLOY THE SAME METHODS IN SELF-DEFENSE.  I THINK THE ACT, AN
EXERCISE BY CONGRESS OF ITS COMMERCE POWER, SHOULD BE INTERPRETED TO
PROTECT INTERSTATE COMMERCE NOT TO PERMIT DISCRIMINATION AGAINST IT. 

SUCH AN APPROACH WAS USED IN THE SHREVEPORT CASE (234 U.S. 342) TO
GIVE THE INTERSTATE COMMERCE COMMISSION CONTROL OVER INTRASTATE RATES
WHICH INJURIOUSLY AFFECTED, THROUGH AN UNREASONABLE DISCRIMINATION,
TRAFFIC THAT WAS INTERSTATE.  THAT RESULT WAS REACHED THOUGH THE ACT
EXPRESSLY DENIED THE COMMISSION ANY JURISDICTION WHERE THE
"TRANSPORTATION" WAS "WHOLLY WITHIN ONE STATE."  THIS COURT SAID (234
U.S. AT P. 358) THAT THOSE WORDS HAD "APPROPRIATE REFERENCE TO
EXCLUSIVELY INTRASTATE TRAFFIC, SEPARATELY CONSIDERED; TO THE
REGULATION OF DOMESTIC COMMERCE, AS SUCH.  THE POWERS CONFERRED BY THE
ACT ARE NOT THEREBY LIMITED WHERE INTERSTATE COMMERCE ITSELF IS
INVOLVED."  THE INTERRELATION BETWEEN THE INTRASTATE AND INTERSTATE
ACTIVITIES IN THE INSTANT CASE IS HARDLY LESS INTIMATE THAN IN THE
SHREVEPORT CASE.  THE FACT THAT THE NEXUS HERE IS ECONOMIC AND NOT
PHYSICAL IS INCONSEQUENTIAL.  IN THIS CASE AS IN THE OTHER THE PROBLEM
IS THE EXISTENCE OF ADMINISTRATIVE AUTHORITY TO PROVIDE EFFECTIVE
PROTECTION OF INTERSTATE COMMERCE AGAINST DISCRIMINATION.  IN THE
SHREVEPORT CASE STATUTORY DOUBTS WERE RESOLVED SO AS TO STRENGTHEN THE
ADMINISTRATIVE PROCESS EVEN AGAINST THE CLAIM THAT THEREBY THE STATE
AUTHORITIES WOULD BE "SHORN OF THOSE POWERS WHICH ALONE CAN JUSTIFY
THEIR EXISTENCE."  SIMILAR ARGUMENTS SHOULD NOT DETER US FROM BEING
TOLERANT OF AN ASSERTED POWER, ADMITTEDLY CONSTITUTIONAL, TO DEAL
EFFECTIVELY WITH THE REALITIES OF ECONOMIC INTERDEPENDENCE. 

THE FACT THAT A CLARIFYING AMENDMENT TO THE ACT WAS SOUGHT WHICH
WOULD HAVE REMOVED THE DOUBTS AS TO THE MEANING OF "IN COMMERCE" IS NOT
MATERIAL EXCEPT TO THE EXTENT THAT IT SHOWS THAT DOUBTS EXISTED.  IT
DOES NOT AID IN RESOLVING THOSE DOUBTS.  TO BE SURE, RECENT STATUTES
DEALING WITH OTHER FIELDS HAVE REMOVED SUCH DOUBTS BY EXPLICIT
PROVISIONS.  BUT THEY ARE OF LITTLE AID IN INTERPRETING AN EARLIER ACT
IN ITS OWN LEGISLATIVE SETTING.  SEE UNITED STATES V. STEWART, 311 U.S.
60, 69.  AND AS TO THE CHARGE THAT FOR A QUARTER OF A CENTURY THE
COMMISSION MADE NO CLAIM TO SUCH A POWER, TWO ANSWERS MAY BE MADE.  IN
THE FIRST PLACE, AS EARLY AS 1921, THE COMMISSION URGED THAT THE
DOCTRINE OF THE SHREVEPORT CASE PERMITTED AN INTERPRETATION OF THE ACT
WHICH WOULD GIVE IT CONTROL OVER CERTAIN INTRASTATE ACTIVITIES. 
CANFIELD OIL CO. V. FEDERAL TRADE COMM'N, 274 F. 571; HANKIN,
JURISDICTION OF THE FEDERAL TRADE COMMISSION, 12 CALIF. L. REV. 179,
197, ET SEQ. ALTHOUGH THE QUESTION DOES NOT APPEAR TO HAVE BEEN
DEFINITELY SETTLED, IN 1926 THE COMMISSION RECEIVED SOME SUPPORT FOR
ITS VIEW.  SEE CHAMBER OF COMMERCE V. FEDERAL TRADE COMM'N, 13 F.2D
673, 684.  CF. AMERICAN CAN CO. V. LADOGA CANNING CO., 44 F.2D 763, 770
771.  BUT IN 1939 THAT POWER WAS DENIED.  CALIFORNIA RICE INDUSTRY V.
FEDERAL TRADE COMM'N, 102 F.2D 716, 723.  NONUSE OF THE ASSERTED POWER
CLEARLY CANNOT BE INFERRED FROM THAT RECORD.  IN THE SECOND PLACE, IT
WOULD NOT BE RELEVANT IF THIS POWER DID LAY DORMANT FOR YEARS.  MERE
NONUSE DOES NOT SUBTRACT FROM POWER WHICH HAS BEEN GRANTED.  THE HOST
OF PRACTICAL REASONS WHICH MAY DEFER EXHAUSTION OF ADMINISTRATIVE
POWERS LIES IN THE REALM OF POLICY.  FROM THAT DELAY WE CAN HARDLY
INFER THAT THE NEED DID NOT OR DOES NOT EXIST. 

MR. JUSTICE BLACK AND MR. JUSTICE REED JOIN IN THIS DISSENT. 
..END :














NELSON V. SEARS, ROEBUCK & CO., 312 U.S. 359 


NO. 255.  ARGUED JANUARY 13, 14, 1941.  - DECIDED FEBRUARY 17, 1941.  -
228 IOWA 1273 - 292 N.W. 130, REVERSED. 


THE IOWA USE TAX ACT, COMPLEMENTING A SALES TAX, REQUIRES EVERY
RETAILER MAINTAINING A PLACE OF BUSINESS WITHIN THE STATE, AT THE TIME
OF MAKING SALES OF TANGIBLE PERSONAL PROPERTY FOR USE WITHIN THE STATE,
TO COLLECT FROM THE PURCHASER THE TAX IMPOSED.  THE AMOUNT REQUIRED TO
BE COLLECTED IS MADE A "DEBT" OF THE RETAILER TO THE STATE.  FAILURE TO
COLLECT THE TAX SUBJECTS A FOREIGN CORPORATION TO REVOCATION OF ITS
PERMIT TO DO BUSINESS WITHIN THE STATE.  HELD THAT A FOREIGN
CORPORATION WHICH MAINTAINED RETAIL STORES IN IOWA MAY CONSTITUTIONALLY
BE REQUIRED TO COLLECT THE TAX IN RESPECT OF MAIL ORDERS, SENT BY IOWA
PURCHASERS TO OUT-OF-STATE BRANCHES OF THE CORPORATION AND FILLED BY
DIRECT SHIPMENT BY MAIL OR COMMON CARRIER FROM THOSE BRANCHES TO THE
PURCHASERS, EVEN THOUGH SUCH ORDERS WERE NOT SOLICITED OR PLACED BY ANY
OF THE CORPORATION'S AGENTS IN IOWA.  PP. 361, 364. 

1.  THE COLLECTION OF THE TAX IN SUCH CASE IS A BURDEN WHICH THE
STATE MAY IMPOSE ON THE CORPORATION AS A PRICE FOR ENJOYING THE FULL
BENEFITS OF ITS IOWA BUSINESS.  P. 364. 

2.  SINCE THE USE TAX AND THE SALES TAX ARE COMPLEMENTARY, AND SALES
MADE WHOLLY WITHIN THE STATE BEAR THE SAME BURDEN AS THE MAIL ORDER
SALES, THERE IS NO DISCRIMINATION AGAINST INTERSTATE COMMERCE.  P.
364. 

3.  THAT THE CORPORATION IS IN COMPETITION WITH OUT-OF-STATE MAIL
ORDER HOUSES WHICH, BECAUSE THEY ARE NOT AUTHORIZED TO DO BUSINESS IN
IOWA, NEED NOT AND DO NOT COLLECT THE TAX ON THEIR SALES TO IOWA
PURCHASERS, DOES NOT INVALIDATE THE OPERATION OF THE ACT AS TO IT.  P.
365. 

4.  NOR IS THE ACT INVALID BECAUSE OF THE COST OR INCONVENIENCE TO
THE CORPORATION OF COLLECTING THE TAX, NOR BECAUSE OF LOSSES IT MAY
SUSTAIN IN MAKING DELIVERIES BEFORE COLLECTING THE TAX.  P. 365. 

NELSON, CHAIRMAN OF THE STATE TAX COMMISSION, ET AL. V. SEARS, ROEBUCK
& CO. 

CERTIORARI TO THE SUPREME COURT OF IOWA. 

CERTIORARI, 311 U.S. 630, TO REVIEW THE AFFIRMANCE BY THE STATE
SUPREME COURT OF A DECREE ENJOINING THE ENFORCEMENT AGAINST RESPONDENT
OF PROVISIONS OF THE IOWA USE TAX ACT AS APPLIED TO MAIL ORDER SALES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE CONSTITUTIONALITY OF THE IOWA USE TAX (IA.
CODE 1939, SECS. 6943.102-6943.125) AS APPLIED TO RESPONDENT'S MAIL
ORDER BUSINESS CONDUCTED DIRECTLY BETWEEN CUSTOMERS IN IOWA AND
RESPONDENT'S MAIL ORDER HOUSES LOCATED OUTSIDE IOWA.  THE SUPREME COURT
OF IOWA, IN A FIVE TO FOUR DECISION, HELD FOR RESPONDENT ON THAT
ISSUE.  228 IA. 1273; 292 N.W. 130.  WE GRANTED CERTIORARI BECAUSE OF
THE IMPORTANCE OF THE CONSTITUTIONAL QUESTION PRESENTED.  JUD.  CODE
SEC. 237(B); 28 U.S.C. SEC. 344(B). 

THE IOWA USE TAX IS COMPLEMENTARY TO THE IOWA RETAIL SALES TAX.  IA.
CODE 1939, SECS. 6943.074, ET SEQ.  IT IS A TAX ON THE USE IN IOWA OF
TANGIBLE PERSONAL PROPERTY AT THE RATE OF TWO PER CENT OF THE PURCHASE
PRICE.  FN1 "USE," SO FAR AS MATERIAL HERE, IS DEFINED AS "THE EXERCISE
BY ANY PERSON OF ANY RIGHT OR POWER OVER TANGIBLE PERSONAL PROPERTY
INCIDENT TO THE OWNERSHIP OF THAT PROPERTY."  SEC. 6943.102.  WHILE THE
TAX IS IMPOSED ON "EVERY PERSON USING SUCH PROPERTY WITHIN THIS STATE
UNTIL SUCH TAX HAS BEEN PAID" (SEC. 6943.103), IT IS FURTHER PROVIDED
(SEC. 6943.109) THAT EVERY "RETAILER MAINTAINING A PLACE OF BUSINESS IN
THIS STATE AND MAKING SALES OF TANGIBLE PERSONAL PROPERTY FOR USE IN
THIS STATE  ...  SHALL AT THE TIME OF MAKING SUCH SALES, WHETHER WITHIN
OR WITHOUT THE STATE, COLLECT THE TAX IMPOSED BY THIS ACT FROM THE
PURCHASER  ...  "  BY SEC. 6943.112 THE TAX CONSTITUTES A "DEBT OWED BY
THE RETAILER" TO THE STATE.  FN2  AND IF THE RETAILER FAILS TO COLLECT
THE TAX, ETC., HIS RETAILER'S PERMIT (SEC. 6943.084) MAY BE REVOKED;
AND IN CASE OF A FOREIGN CORPORATION, ITS PERMIT TO DO BUSINESS IN THE
STATE AS WELL.  SEC. 6943.122. 

RESPONDENT IS A NEW YORK CORPORATION AUTHORIZED SINCE 1928 TO DO
BUSINESS IN IOWA.  IT HAS VARIOUS RETAIL STORES THERE.  IT PAYS THE TAX
ON SALES MADE AT THOSE STORES.  IT ALSO PAYS THE TAX ON ORDERS PLACED
AT THOSE STORES, THOUGH SHIPMENT IS MADE DIRECT TO THE PURCHASER FROM
ONE OF RESPONDENT'S OUT OF STATE BRANCHES.  BUT IT HAS REFUSED TO
COLLECT THE TAX ON MAIL ORDERS SENT BY IOWA PURCHASERS TO ITS OUT OF
STATE BRANCHES AND FILLED BY DIRECT SHIPMENTS THROUGH THE MAILS OR A
COMMON CARRIER FROM THOSE BRANCHES TO THE PURCHASERS.  FN3  ON THREAT
OF PETITIONERS TO REVOKE RESPONDENT'S PERMIT BECAUSE OF SUCH REFUSAL,
RESPONDENT BROUGHT THIS SUIT FOR AN INJUNCTION, ALLEGING, INTER ALIA,
THAT THE ACT AS APPLIED VIOLATES SEC. 8 OF ARTICLE I OF THE
CONSTITUTION AND THE FOURTEENTH AMENDMENT. 

THE IOWA SUPREME COURT HELD THAT IF RESPONDENT HAD LIMITED ITS
ACTIVITIES TO A MAIL ORDER BUSINESS OF THE KIND HERE INVOLVED, IT WOULD
NOT BE DOING BUSINESS IN IOWA; THAT, ALTHOUGH TECHNICALLY THE TAX MAY
BE ON THE PURCHASER, IT MUST BE COLLECTED WHEN THE SALE IS MADE, AT
WHICH TIME THE PROPERTY IS OUTSIDE THE STATE; THAT THESE SALES ARE
SEPARATE AND DISTINCT FROM RESPONDENT'S ACTIVITIES IN IOWA.  IT
THEREFORE CONCLUDED THAT THE TAX AS APPLIED WAS UNCONSTITUTIONAL SINCE
IOWA HAS NO POWER TO REGULATE RESPONDENT'S ACTIVITIES OUTSIDE THE STATE
OR TO REGULATE SUCH ACTIVITIES AS A CONDITION TO RESPONDENT'S RIGHT TO
CONTINUE TO DO BUSINESS IN THE STATE. 

IN PASSING ON THE CONSTITUTIONALITY OF A TAX LAW "WE ARE CONCERNED
ONLY WITH ITS PRACTICAL OPERATION, NOT ITS DEFINITION OR THE PRECISE
FORM OF DESCRIPTIVE WORDS WHICH MAY BE APPLIED TO IT."  LAWRENCE V.
STATE TAX COMM'N, 286 U.S. 276, 280; SOUTHERN PACIFIC CO. V. GALLAGHER,
306 U.S. 167, 177; WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435.  THE
FACT THAT UNDER IOWA LAW THE SALE IS MADE OUTSIDE OF THE STATE DOES NOT
MEAN THAT THE POWER OF IOWA "HAS NOTHING ON WHICH TO OPERATE." 
WISCONSIN V. J.C. PENNEY CO., SUPRA.  THE PURCHASER IS IN IOWA AND THE
TAX IS UPON USE IN IOWA.  THE VALIDITY OF SUCH A TAX, SO FAR AS THE
PURCHASER IS CONCERNED, "HAS BEEN WITHDRAWN FROM THE ARENA OF DEBATE." 
HENNEFORD V. SILAS MASON CO., 300 U.S. 577, 583; SOUTHERN PACIFIC CO.
V. GALLAGHER, SUPRA.  IT IS ONE OF THE WELL-KNOWN FUNCTIONS OF THE
INTEGRATED USE AND SALES TAX TO REMOVE THE BUYERS' TEMPTATION "TO PLACE
THEIR ORDERS IN OTHER STATES IN THE EFFORT TO ESCAPE PAYMENT OF THE TAX
ON LOCAL SALES."  HENNEFORD V. SILAS MASON CO., SUPRA, P. 581.  AS
POINTED OUT IN THAT CASE (P. 582), THE FACT THAT THE BUYER EMPLOYS
AGENCIES OF INTERSTATE COMMERCE IN ORDER TO EFFECTUATE HIS PURCHASE IS
NOT MATERIAL, SINCE THE TAX IS "UPON THE PRIVILEGE OF USE AFTER
COMMERCE IS AT AN END."  AND SEE SOUTHERN PACIFIC CO. V. GALLAGHER,
SUPRA.  USE IN IOWA IS WHAT IS TAXED REGARDLESS OF THE TIME AND PLACE
OF PASSING TITLE AND REGARDLESS OF THE TIME THE TAX IS REQUIRED TO BE
PAID.  CF. MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S. 33,
49. 

SO THE NUB OF THE PRESENT CONTROVERSY CENTERS ON THE USE OF
RESPONDENT AS THE COLLECTION AGENT FOR IOWA.  THE IMPOSITION OF SUCH A
DUTY, HOWEVER, WAS HELD NOT TO BE AN UNCONSTITUTIONAL BURDEN ON A
FOREIGN CORPORATION IN MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, AND
FELT & TARRANT MFG. CO. V. GALLAGHER, 306 U.S. 62.  BUT RESPONDENT
INSISTS THAT THOSE CASES INVOLVED LOCAL ACTIVITY BY THE FOREIGN
CORPORATION AS A RESULT OF WHICH PROPERTY WAS SOLD TO ITS LOCAL
CUSTOMERS, WHILE IN THE INSTANT CASE THERE IS NO LOCAL ACTIVITY BY
RESPONDENT WHICH GENERATES OR WHICH RELATES TO THE MAIL ORDERS HERE
INVOLVED.  YET THESE ORDERS ARE STILL A PART OF RESPONDENT'S IOWA
BUSINESS.  THE FACT THAT RESPONDENT COULD NOT BE REACHED FOR THE TAX IF
IT WERE NOT QUALIFIED TO DO BUSINESS IN IOWA WOULD MERELY BE A RESULT
OF THE "IMPOTENCE OF STATE POWER."  WISCONSIN V. J.C. PENNEY CO.,
SUPRA.  SINCE IOWA HAS EXTENDED TO IT THAT PRIVILEGE, IOWA CAN EXACT
THIS BURDEN AS A PRICE OF ENJOYING THE FULL BENEFITS FLOWING FROM ITS
IOWA BUSINESS.  CF. WISCONSIN V. J.C. PENNEY CO., SUPRA.  RESPONDENT
CANNOT AVOID THAT BURDEN THOUGH ITS BUSINESS IS DEPARTMENTALIZED. 
WHATEVER MAY BE THE INSPIRATION FOR THESE MAIL ORDERS, HOWEVER THEY MAY
BE FILLED, IOWA MAY RIGHTLY ASSUME THAT THEY ARE NOT UNRELATED TO
RESPONDENT'S COURSE OF BUSINESS IN IOWA.  THEY ARE NONETHELESS A PART
OF THAT BUSINESS THOUGH NONE OF RESPONDENT'S AGENTS IN IOWA ACTUALLY
SOLICITED OR PLACED THEM.  HENCE TO INCLUDE THEM IN THE GLOBAL AMOUNT
OF BENEFITS WHICH RESPONDENT IS RECEIVING FROM IOWA BUSINESS IS TO
CONFORM TO BUSINESS FACTS. 

NOR IS THE MODE OF ENFORCING THE TAX ON THE PRIVILEGES OF THESE IOWA
TRANSACTIONS ANY DISCRIMINATION AGAINST INTERSTATE COMMERCE.  AS WE
HAVE SEEN, THE USE TAX AND THE SALES TAX ARE COMPLEMENTARY.  SALES MADE
WHOLLY WITHIN IOWA CARRY THE SAME BURDEN AS THESE MAIL ORDER SALES.  A
TAX OR OTHER BURDEN OBVIOUSLY DOES NOT DISCRIMINATE AGAINST INTERSTATE
COMMERCE WHERE "EQUALITY IS ITS THEME."  HENNEFORD V. SILAS MASON CO.,
SUPRA, PP. 583-586; MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., SUPRA,
PP. 48-49. 

RESPONDENT, HOWEVER, INSISTS THAT THE DUTY OF TAX COLLECTION PLACED
ON IT CONSTITUTES A REGULATION OF AND SUBSTANTIAL BURDEN UPON
INTERSTATE COMMERCE AND RESULTS IN AN IMPAIRMENT OF THE FREE FLOW OF
SUCH COMMERCE.  IT POINTS TO THE FACT THAT IN ITS MAIL ORDER BUSINESS
IT IS IN COMPETITION WITH OUT OF STATE MAIL ORDER HOUSES WHICH NEED NOT
AND DO NOT COLLECT THE TAX ON THEIR IOWA SALES.  BUT THOSE OTHER
CONCERNS ARE NOT DOING BUSINESS IN THE STATE AS FOREIGN CORPORATIONS. 
HENCE, UNLIKE RESPONDENT, THEY ARE NOT RECEIVING BENEFITS FROM IOWA FOR
WHICH IT HAS THE POWER TO EXACT A PRICE.  RESPONDENT FURTHER STRESSES
THE COST TO IT OF MAKING THESE COLLECTIONS AND ITS PROBABLE LOSS AS A
RESULT OF ITS INABILITY TO COLLECT THE TAX ON ALL SALES.  FN4  BUT COST
AND INCONVENIENCE INHERED IN THE SAME DUTY IMPOSED ON THE FOREIGN
CORPORATIONS IN THE MONAMOTOR AND FELT & TARRANT CASES.  AND SO FAR AS
ASSUMED LOSSES ON TAX COLLECTIONS ARE CONCERNED, RESPONDENT IS IN NO
POSITION TO FOUND A CONSTITUTIONAL RIGHT ON THE PRACTICAL OPPORTUNITIES
FOR TAX AVOIDANCE WHICH ITS METHOD OF DOING BUSINESS AFFORDS IOWA
RESIDENTS, OR TO CLAIM A CONSTITUTIONAL IMMUNITY BECAUSE IT MAY ELECT
TO DELIVER THE GOODS BEFORE THE TAX IS PAID. 

PROHIBITED DISCRIMINATORY BURDENS ON INTERSTATE COMMERCE ARE NOT TO
BE DETERMINED BY ABSTRACTIONS.  PARTICULAR FACTS OF SPECIFIC CASES
DETERMINE WHETHER A GIVEN TAX PROHIBITIVELY DISCRIMINATES AGAINST
INTERSTATE COMMERCE.  HENCE A REVIEW OF PRIOR ADJUDICATIONS BASED ON
WIDELY DISPARATE FACTS, HOWSOEVER EMBEDDED IN GENERAL PROPOSITIONS,
DOES NOT FACILITATE AN ANSWER TO THE PRESENT PROBLEM. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE IOWA
SUPREME COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  THE USE TAX ACT PROVIDES IN SEC. 6943.103, 

"AN EXCISE TAX IS HEREBY IMPOSED ON THE USE IN THIS STATE OF TANGIBLE
PERSONAL PROPERTY PURCHASED ON OR AFTER THE EFFECTIVE DATE OF THIS ACT
(APRIL 16, 1937) FOR USE IN THIS STATE, AT THE RATE OF TWO PER CENT OF
THE PURCHASE PRICE OF SUCH PROPERTY.  SAID TAX IS HEREBY IMPOSED UPON
EVERY PERSON USING SUCH PROPERTY WITHIN THIS STATE UNTIL SUCH TAX HAS
BEEN PAID DIRECTLY TO THE COUNTY TREASURER, TO A RETAILER, OR TO THE
COMMISSION AS HEREINAFTER PROVIDED." 

THE SALES TAX IS A TWO PER CENT TAX ON GROSS RECEIPTS FROM SALES OF
TANGIBLE PERSONAL PROPERTY SOLD AT RETAIL IN THE STATE TO CONSUMERS OR
USERS.  SEC. 6943.075.  SO FAR AS MATERIAL HERE, THE USE TAX NEED NOT
BE PAID ON PROPERTY WHERE A TAX IS REQUIRED TO BE PAID UNDER THE SALES
TAX ACT.  SEC. 6943.104. 

FN2  THE RETAILER MUST ALSO MAKE QUARTERLY RETURNS.  SEC. 6943.113. 
PENALTIES ARE IMPOSED FOR DELAY IN FILING RETURNS (SEC. 6943.118), FOR
FAILURE TO DO SO OR FOR FAILURE TO FURNISH DATA REQUIRED BY THE
COMMISSION.  SEC. 6943.120. 

FN3  IN 1937 RESPONDENT MAILED TO RESIDENTS OF IOWA ABOUT 600,000
SMALL CATALOGUES AND 427,000 LARGE ONES.  RESPONDENT MAINTAINS 12
RETAIL STORES IN IOWA, ITS INVESTMENT THEREIN EXCEEDING $500,000.  THE
AGGREGATE SALES OF THE RETAIL STORES IN IOWA FOR 1936 AMOUNTED TO
$5,080,000; FOR 1937, $5,600,000.  ITS MAIL ORDER SALES IN IOWA FOR
1936 AGGREGATED ABOUT $5,900,000; FOR 1937, ABOUT $5,400,000.  IT
ESTIMATES THAT IT HAS SOME 300,000 IOWA CUSTOMERS OF ITS MAIL ORDER
HOUSES AND THAT IN 1937 THERE WERE ABOUT 1,200,000 ORDERS RECEIVED FROM
IOWA CUSTOMERS. 

ONE OF RESPONDENT'S WITNESSES TESTIFIED THAT THE CATALOGUES AND
BULLETINS MAILED OUT WERE "OUR SOLE MEANS OF SECURING" THE MAIL ORDER
BUSINESS.  BUT HE ALSO TESTIFIED, "IF A CUSTOMER INQUIRED FROM A CLERK
IN THE STORE AS TO WHETHER OR NOT HE WOULD HAVE TO PAY A USE TAX UPON
AN ORDER, I BELIEVE THE CLERK WOULD INFORM HIM THAT IF HE HIMSELF
MAILED THE ORDER THAT THERE WOULD BE NO SALES TAX OR USE TAX CHARGED." 

FN4  IN ILLINOIS RESPONDENT UNDERTAKES TO COLLECT THE SALES TAX ON
MAIL ORDERS FROM ITS ILLINOIS CUSTOMERS.  A NOTICE AND SCHEDULE OF THE
TAX FOR VARIOUS AMOUNTS OF ORDERS ARE CONTAINED IN THE ILLINOIS
CATALOGUE.  IT ASSERTS THAT APPROXIMATELY 65% OF THOSE ORDERS INCLUDE
AN ALLOWANCE FOR THE TAX.  WHERE THE ORDERS ARE NOT ACCOMPANIED BY AN
AMOUNT COVERING THE ILLINOIS SALES TAX, RESPONDENT DOES NOT HOLD UP THE
ORDER BUT FILLS IT AND SENDS THE CUSTOMER A BILL FOR THE DIFFERENCE. 
IT SAYS THAT IT COLLECTS APPROXIMATELY 36% OF THOSE DEFICIENCIES WHERE
THE AMOUNT IS LESS THAN 25[; 70% TO 75%, WHERE THE AMOUNT IS MORE.  ON
THE ASSUMPTION THAT ON SALES TO IOWA PURCHASERS THE USE TAX WOULD
AMOUNT TO $100,000 A YEAR, RESPONDENT ASSERTS THAT, BASED ON ITS
ILLINOIS EXPERIENCE, THE MAXIMUM THAT WOULD BE COLLECTED WOULD BE
$68,000.  TO DO THAT, IT SAYS, WOULD ENTAIL A DIRECT COST TO IT OF
APPROXIMATELY $13,700 A YEAR.  THOSE CALCULATIONS ARE ON THE ASSUMPTION
THAT RESPONDENT WOULD PUT A NOTICE IN ITS IOWA CATALOGUES SIMILAR TO
THE ONE USED IN ILLINOIS.  IF SUCH A NOTICE WERE NOT GIVEN, IT ASSERTS
THAT COLLECTIONS OF THE IOWA USE TAX WOULD NOT EXCEED $35,000(OUT OF AN
ASSUMED $100,000) AND THAT ITS COST WOULD BE APPROXIMATELY $18,000. 

MR. JUSTICE STONE TOOK NO PART IN THE CONSIDERATION OR DISPOSITION OF
THIS CASE. 

MR. JUSTICE ROBERTS, DISSENTING. 

I THINK THAT THE JUDGMENT SHOULD BE AFFIRMED. 

THE RESPONDENT, A NEW YORK CORPORATION, CONDUCTS AN INTERSTATE MAIL
ORDER BUSINESS.  IT HAS ALSO ESTABLISHED RETAIL STORES THROUGHOUT THE
COUNTRY.  IN 1928, TO SECURE THE PRIVILEGE OF CONDUCTING STORES IN IOWA
AS A FOREIGN CORPORATION, IT OBTAINED A PERMIT WHICH HAS BEEN KEPT IN
FORCE BY PAYMENT OF THE FEES PRESCRIBED BY THE STATE.  NO QUESTION
ARISES WITH RESPECT TO THE COLLECTION BY THE RESPONDENT OF THE TAX ON
SALES MADE IN STORES IN IOWA OR ON SALES BASED UPON ORDERS TAKEN IN
THOSE STORES BUT FILLED BY FORWARDING ARTICLES FROM A WAREHOUSE IN
ANOTHER STATE. 

THE CONTROVERSY ARISES ONLY OVER PURE MAIL ORDER SALES.  THESE ARE
CONSUMMATED IN THE FOLLOWING MANNER:  THE RESPONDENT FORWARDS TO
PERSONS IN IOWA CATALOGUES DETAILING THE ARTICLES IT HAS FOR SALE, THE
PRICES, AND THE COST OF TRANSPORTING THEM.  A PERSON IN IOWA FORWARDS
HIS WRITTEN ORDER TO ONE OF THE RESPONDENT'S MAIL ORDER HOUSES LOCATED
OUTSIDE IOWA FOR THE PURCHASE OF TANGIBLE PERSONAL PROPERTY AS LISTED
AND PRICED IN RESPONDENT'S CATALOGUE, THE ORDER BEING ACCOMPANIED BY A
REMITTANCE OF THE PURCHASE PRICE, PLUS TRANSPORTATION CHARGES, AND
USUALLY SPECIFYING THE METHOD OF TRANSPORTATION DESIRED BY THE
PURCHASER.  THE ORDER IS ACCEPTED OR REJECTED AT THE PLACE WHERE IT IS
RECEIVED AND, IF ACCEPTED, IS FILLED BY DELIVERY TO THE POST OFFICE OR
TO A CARRIER FOR DIRECT SHIPMENT FROM THE EXTRA-STATE MAIL ORDER HOUSE
TO THE PURCHASER IN IOWA.    THIS MAIL ORDER BRANCH OF RESPONDENT'S
BUSINESS IS SEPARATE AND DISTINCT FROM ANY ACTIVITY CONDUCTED AT ITS
STORES IN IOWA.  IN CONDUCTING IT THE RESPONDENT IS IN DIRECT
COMPETITION WITH OTHER MAIL ORDER HOUSES WHICH CONDUCT THEIR BUSINESS
IN EXACTLY SIMILAR FASHION BUT HAVE NO STORES IN IOWA AND ARE NOT
THEREIN REGISTERED AS FOREIGN CORPORATIONS. 

THE METHOD NECESSARILY PURSUED IN THE RESPONDENT'S MAIL ORDER
BUSINESS MAKES IT A CERTAINTY THAT IT WILL BE UNABLE, BY WHATEVER
PRACTICAL EFFORTS IT MAY PUT FORTH, TO COLLECT THE AMOUNT OF THE USE
TAX ON ALL ITS MAIL ORDER SALES MADE TO PERSONS IN IOWA.  IN 1937 THE
NUMBER OF ITS MAIL ORDER TRANSACTIONS WITH SOME 300,000 PERSONS IN IOWA
WAS APPROXIMATELY 1,200,000.  UNDER THE STATUTE AS ATTEMPTED TO BE
ENFORCED AGAINST ITS MAIL ORDER BUSINESS, IF, IN 1937, THE RESPONDENT
HAD FAILED TO COLLECT FROM EACH CUSTOMER THE SUM INVOLVED AS TAX, IT
WOULD HAVE BEEN LIABLE TO IOWA IN THE AGGREGATE FOR TWO PER CENT.  ON
APPROXIMATELY $5,400,000, - THE VOLUME OF ITS IOWA MAIL ORDER BUSINESS
IN THAT YEAR.  IF IT HAD MADE THE EFFORT TO COLLECT THE TAX, THE COST
OF SO DOING WOULD HAVE BEEN APPROXIMATELY EIGHTEEN PER CENT. OF THE
TOTAL TAX ON THE MAIL ORDER SALES MADE TO PERSONS IN IOWA AND, IN
ADDITION TO THAT COST, THE RESPONDENT WOULD HAVE BEEN LIABLE FOR
APPROXIMATELY $38,000 OF TAX UNCOLLECTED FROM PURCHASERS.  IN ADDITION,
AS A RESULT OF THE EXACTION, THE RESPONDENT'S MAIL ORDER BUSINESS WILL
BE PLACED AT A SERIOUS DISADVANTAGE IN COMPETITION WITH OTHER MAIL
ORDER CONCERNS WHICH HAVE NO RETAIL STORES IN IOWA AND SO HAVE A PRICE
ADVANTAGE OF TWO PER CENT. OF SALES PRICE AS AGAINST RESPONDENT. 

THE PENALTY FOR FAILING TO COLLECT THE TAX AS AGENT FOR THE STATE, OR
TO PAY THE SUM NOT SUSCEPTIBLE OF COLLECTION FROM PURCHASERS, AS
REQUIRED BY THE STATE, WILL BE THE REVOCATION OF RESPONDENT'S PERMIT
FOR THE CONDUCT OF ITS STORES IN IOWA, WHICH REPRESENT A LARGE
EXPENDITURE FOR FURNITURE, FIXTURES, APPLIANCES, AND STOCK, AND WILL
ENTAIL LOSS OF RENTAL VALUES UNDER LONG TERM LEASES. 

I AM OF OPINION THAT THE ATTEMPTED ENFORCEMENT OF THE STATUTE IN THE
MANNER PROPOSED BY THE TAXING AUTHORITIES OF THE STATE VIOLATES BOTH
THE COMMERCE CLAUSE AND THE FOURTEENTH AMENDMENT OF THE CONSTITUTION. 

FIRST.  THE RESPONDENT'S MAIL ORDER BUSINESS IS INTERSTATE COMMERCE,
FN1  AND IOWA MAY NOT PROHIBIT THE RESPONDENT FROM CONDUCTING THAT
BUSINESS WITH HER CITIZENS.  FN2  TO ATTEMPT SO TO DO WOULD BE A
VIOLATION OF THE COMMERCE CLAUSE OF THE CONSTITUTION. 

NOT ONLY SO, BUT IOWA MAY NOT DIRECTLY BURDEN SUCH COMMERCE. 
THEREFORE SHE MAY NOT TAX THE PRIVILEGE OF ENGAGING IN IT; REGULATE OR
LICENSE ITS PURSUIT,  FN3  OR TAX THE GROSS INCOME DERIVED FROM IT.
FN4  AND EVEN IF THE RESPONDENT MAINTAINED A FORCE OF AGENTS IN IOWA
SOLICITING ORDERS TO BE SHIPPED IN INTERSTATE COMMERCE THAT FACT WOULD
NOT RENDER IT AMENABLE TO THE REGULATION OR TAXATION OF ITS MAIL ORDER
BUSINESS.  FN5 

THUS IOWA MAY NOT LAWFULLY LICENSE OR REGULATE THE BUSINESS OF AGENTS
SOLICITING ORDERS TO BE SHIPPED IN INTERSTATE COMMERCE; FN6  OR LIMIT
OR CONDITION THE RIGHT TO ENFORCE MAIL ORDER CONTRACTS IN IOWA COURTS. 
FN7  THE POWER TO EXCLUDE FOREIGN CORPORATIONS ALTOGETHER FROM DOING A
LOCAL BUSINESS DOES NOT ENABLE THE STATE TO IMPOSE BURDENS UPON THE
TRANSACTION OF INTERSTATE COMMERCE BY A FOREIGN CORPORATION REGISTERED
IN THE STATE; AND REGISTRATION BY A FOREIGN CORPORATION IN ORDER TO DO
BUSINESS WITHIN THE STATE DOES NOT CONSTITUTE A WAIVER OF THE
CORPORATION'S RIGHT TO TRANSACT INTERSTATE BUSINESS FREE FROM THE
BURDENS OF STATE REGULATION OR TAXATION.  FN8 

IOWA MAY NOT ABUSE ITS CONCEDED POWER TO TAX OR REGULATE THE
RESPONDENT'S ACTIVITIES WITHIN THE STATE BY ATTEMPTING TO COMPEL
COMPLIANCE BY THE RESPONDENT WITH UNCONSTITUTIONAL EFFORTS TO TAX OR
BURDEN ITS INTERSTATE COMMERCE.  FN9  AND IOWA MAY NOT FORFEIT, AS IT
PROPOSES TO DO, THE RIGHT TO CONDUCT A DOMESTIC BUSINESS BY REASON OF
THE REFUSAL OF THE RESPONDENT TO SUBMIT TO A BURDEN UPON ITS INTERSTATE
BUSINESS.  FN10 

CLEARLY IN THIS INSTANCE THE EFFORT IS DIRECTLY AND SUBSTANTIALLY TO
BURDEN THE TRANSACTION OF AN INTERSTATE BUSINESS WITH THE STATE'S
CITIZENS, IN VIOLATION OF THE COMMERCE CLAUSE, BY THE THREAT OF
PENALIZING DISOBEDIENCE BY THE FORFEITURE OF THE RIGHT TO TRANSACT,
WITHIN IOWA, AN INDEPENDENT BUSINESS WHICH THE RESPONDENT CONDUCTS IN
ACCORDANCE WITH ALL EXISTING LAWS, INCLUDING THE LAW REQUIRING IT TO
DEDUCT AND PAY OVER THE AMOUNT OF THE IOWA SALES TAX.  UPON REASON, AS
WELL AS UPON THE UNBROKEN CURRENT OF AUTHORITY IN THIS COURT, IOWA HAS
NO SUCH POWER TO BURDEN INTERSTATE COMMERCE. 

MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, AND FELT & TARRANT MFG.
CO. V. GALLAGHER, 306 U.S. 62, RELIED UPON BY THE PETITIONERS, ARE NOT
IN POINT. 

THE FIRST IS NOT APPOSITE BECAUSE THERE THE COMPANY WAS ENGAGED IN
THE DISTRIBUTION OF GASOLINE IN THE STATE OF IOWA.  THIS WAS THE ONLY
ACTIVITY DRAWN IN QUESTION.  THE STATUTE MERELY REQUIRED THE COMPANY,
IN DISTRIBUTING GASOLINE TO USERS, TO ADD THE TAX TO ITS SALES PRICE
AND REPORT AND RETURN THE AMOUNT OF TAX THUS WITHHELD.  IN THE SECOND,
THE COLLECTION OF THE USE TAX WAS IMPOSED WITH RESPECT TO PROPERTY SOLD
BY THE CORPORATION THROUGH ITS GENERAL AGENTS WHO WERE DOING BUSINESS
IN THE STATE OF CALIFORNIA AND WERE HANDLING ARTICLES SOLD FOR DELIVERY
IN THAT STATE.  AS AN INCIDENT OF SUCH SALES, THE SELLER WAS REQUIRED
TO ADD THE TAX AND MAKE RETURN OF IT TO THE STATE.  FN11 

IN JUSTIFICATION OF THE EXACTION IT IS SAID THAT THE PURCHASER IS IN
IOWA AND THE TAX IS ON THE PURCHASER'S USE IN THAT STATE.  BUT IF THESE
FACTS WERE DETERMINATIVE THEY WOULD JUSTIFY THE IMPOSITION OF A TAX OR
BURDEN, BY THE STATE OF THE PURCHASER'S RESIDENCE, ON EVERY TRANSACTION
IN WHICH GOODS ARE SOLD IN INTERSTATE COMMERCE.  ATTENTION IS ALSO
CALLED TO THE FACT THAT IOWA CANNOT EFFECTIVELY REACH ITS OWN CITIZENS
IN ORDER TO ENFORCE THE USE TAX ON THEM.  THIS CANNOT, HOWEVER, JUSTIFY
THE STATE'S ATTEMPT TO SAVE ITSELF TROUBLE BY PLACING AN
UNCONSTITUTIONAL BURDEN UPON INTERSTATE COMMERCE CONDUCTED BY A CITIZEN
OF ANOTHER STATE.  REFERENCE IS MADE TO THE CIRCUMSTANCE THAT, AS A
SIMILAR TAX IS LAID ON LOCAL SALES IN IOWA, THERE IS NO DISCRIMINATION
IN IMPOSING THE TAX OR ITS COLLECTION UPON THE RESPONDENT, BUT THE
ARGUMENT WILL NOT SERVE TO LEGALIZE THE TAX.  A STATE CANNOT JUSTIFY A
BURDEN ON INTERSTATE COMMERCE BY LAYING A SIMILAR BURDEN ON LOCAL
COMMERCE.  FN12 

SECOND.  SO FAR AS THE FOURTEENTH AMENDMENT IS CONCERNED, IOWA MAY
LAY A TAX ON ANY ACTIVITY OF THE RESPONDENT WHICH IT PURSUES WITHIN THE
STATE, BUT PLAINLY, UPON THE FACTS DISCLOSED, THERE IS, IN THE CONDUCT
OF RESPONDENT'S MAIL ORDER BUSINESS, NO SUCH LOCAL ACTIVITY.  THE
SUPREME COURT OF THE STATE CORRECTLY FOUND: 

"THE SALES ARE CONSUMMATED OUTSIDE THE STATE OF IOWA IN EACH
INSTANCE.  THEY ARE SEPARATE AND DISTINCT FROM PLAINTIFF'S ACTIVITIES
IN IOWA.  THE STATUTE HERE CHALLENGED SEEKS TO IMPOSE UPON PLAINTIFF
THE OBLIGATION THAT IT 'SHALL AT THE TIME OF MAKING SUCH SALES, WHETHER
WITHIN OR WITHOUT THE STATE, COLLECT THE TAX IMPOSED BY THIS CHAPTER
FROM THE PURCHASER.'  THE SALES ARE MADE OUTSIDE OF IOWA AND THE
STATUTE REQUIRES PLAINTIFF TO COLLECT THE TAX AT THE TIME THE SALES ARE
MADE.  IT CLEARLY SEEKS TO REGULATE ACTIVITIES OF PLAINTIFF OUTSIDE THE
STATE.  ...  UNDER REPEATED PRONOUNCEMENTS OF THE SUPREME COURT OF THE
UNITED STATES, HEREINBEFORE REVIEWED AND QUOTED FROM, THE STATE OF IOWA
HAS NO SUCH RIGHT." 

DELIVERY TO A DESIGNATED CARRIER IS DELIVERY TO THE CUSTOMER  FN13
AND, IN THIS CASE, IS COMPLETED OUTSIDE IOWA.  THE ATTEMPT, THEREFORE,
TO IMPOSE A BURDEN UPON SUCH DELIVERY OR TO REGULATE THE TRANSACTION IS
BUT AN EFFORT ON THE PART OF IOWA TO REGULATE OR TAX AN EVENT WHICH
OCCURS OUTSIDE HER BORDERS AND OVER WHICH SHE HAS NO JURISDICTION. 
FN14  THIS COURT HAS RECENTLY ENFORCED THIS PRINCIPLE IN A CASE ON ITS
MERITS MORE FAVORABLE TO THE STATE'S CONTENTION THAN THE PRESENT.  FN15
THERE IT WAS SAID: 

"IT FOLLOWS THAT SUCH A TAX, OTHERWISE UNCONSTITUTIONAL, IS NOT
CONVERTED INTO A VALID EXACTION MERELY BECAUSE THE CORPORATION ENJOYS
OUTSIDE THE STATE ECONOMIC BENEFITS FROM TRANSACTIONS WITHIN IT, WHICH
THE STATE MIGHT BUT DOES NOT TAX, OR BECAUSE THE STATE MIGHT TAX THE
TRANSACTIONS WHICH THE CORPORATION CARRIES ON OUTSIDE THE STATE IF IT
WERE INDUCED TO CARRY THEM ON WITHIN." 

MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S. 33, IS
DISTINGUISHABLE FROM THE INSTANT CASE FOR THERE THE DECISION WAS
GROUNDED ON THE FACT THAT THE TRANSFER OF TITLE AND CONSUMMATION OF
SALE DEPENDED UPON DELIVERY BY THE SELLER IN THE TAXING STATE. 

IN THIS ASPECT ALSO THE POWER OF THE STATE DOES NOT EXTEND TO
MEASURES WHICH CONDITION RESPONDENT'S PRIVILEGE TO DO BUSINESS IN
ANOTHER STATE FREE FROM THE REGULATION OR TAXATION OF IOWA.  FN16 

FN1  HEYMAN V. HAYES, 236 U.S. 178, 186. 

FN2  BOWMAN V. CHICAGO & N.W. RY. CO., 125 U.S. 465; LEISY V. HARDIN,
135 U.S. 100; SCHOLLENBERGER V. PENNSYLVANIA, 171 U.S. 1; WEST V.
KANSAS NATURAL GAS CO., 221 U.S. 229, 250, 262; LOUISVILLE & NASHVILLE
R. CO. V. COOK BREWING CO., 223 U.S. 70, 82; MINNESOTA RATE CASES, 230
U.S. 352, 401. 

FN3  INTERNATIONAL TEXT BOOK CO. V. PIGG, 217 U.S. 91, 105, 108; BUCK
STOVE CO. V. VICKERS, 226 U.S. 205, 215; SAULT STE.  MARIE V.
INTERNATIONAL TRANSIT CO., 234 U.S. 333, 340; LEMKE V. FARMERS GRAIN
CO., 258 U.S. 50; PUGET SOUND STEVEDORING CO. V. TAX COMMISSION, 302
U.S. 90, 94. 

FN4  FISHER'S BLEND STATION V. TAX COMMISSION, 297 U.S. 650, 655;
ADAMS MANUFACTURING CO. V. STOREN, 304 U.S. 307. 

FN5  CRUTCHER V. KENTUCKY, 141 U.S. 47; INTERNATIONAL TEXT BOOK CO.
V. PIGG, SUPRA. 

FN6  BRENNAN V. TITUSVILLE, 153 U.S. 289; CRENSHAW V. ARKANSAS, 227
U.S. 389. 

FN7  SIOUX REMEDY CO. V. COPE, 235 U.S. 197, 201; FURST & THOMAS V.
BREWSTER, 282 U.S. 493. 

FN8  FIDELITY & DEPOSIT CO. V. TAFOYA, 270 U.S. 426, 434; HANOVER
FIRE INS. CO. V. HARDING, 272 U.S. 494, 507, 517. 

FN9  LOONEY V. CRANE CO., 245 U.S. 178, 187. 

FN10  WESTERN UNION TELEGRAPH CO. V. KANSAS, 216 U.S. 1, 34; PULLMAN
CO. V. KANSAS, 216 U.S. 56; ATCHISON, T. & S.F. RY. CO. V. O'CONNOR,
223 U.S. 280, 285; WESTERN UNION TEL. CO. V. FOSTER, 247 U.S. 105, 114;
FROST TRUCKING CO. V. RAILROAD COMMISSION, 271 U.S. 583, 593. 

FN11  COMPARE WILOIL CORPORATION V. PENNSYLVANIA, 294 U.S. 169;
GRAYBAR ELECTRIC CO. V. CURRY, 308 U.S. 513. 

FN12  WESTERN UNION TELEGRAPH CO. V. KANSAS, SUPRA; CREW LEVICK CO.
V. PENNSYLVANIA, 245 U.S. 292. 

FN13  UNITED STATES V. R.P. ANDREWS & CO., 207 U.S. 229; COMPARE
GARRETSON V. SELBY, 37 IOWA 529. 

FN14  ST. LOUIS COTTON COMPRESS CO. V. ARKANSAS, 260 U.S. 346. 

FN15  CONNECTICUT GENERAL LIFE INS. CO. V. JOHNSON, 303 U.S. 77. 

FN16  NEW YORK LIFE INS. CO. V. DODGE, 246 U.S. 357, 375; HOME
INSURANCE CO. V. DICK, 281 U.S. 397, 407; JAMES V. DRAVO CONTRACTING
CO., 302 U.S. 134, 139. 

THE CHIEF JUSTICE JOINS IN THIS OPINION. 
..END :









NELSON V. MONTGOMERY WARD, 312 U.S. 373 


NO. 256.  ARGUED JANUARY 13, 14, 1941.  - DECIDED FEBRUARY 17, 1941.  -
228 IOWA 1301 - 292 N.W. 142, REVERSED. 


1.  A FOREIGN CORPORATION WHICH MAINTAINED RETAIL STORES IN IOWA, AND
ALSO SOLICITED MAIL ORDERS IN THAT STATE BY LOCAL ADVERTISING, MAY
CONSTITUTIONALLY BE REQUIRED TO COLLECT THE TAX IMPOSED BY THE IOWA USE
TAX ACT, IN RESPECT OF MAIL ORDERS SENT BY IOWA PURCHASERS TO OUT-OF
STATE BRANCHES OF THE CORPORATION AND FILLED BY DIRECT SHIPMENT BY MAIL
OR COMMON CARRIER FROM SUCH BRANCHES TO THE PURCHASERS.  NELSON V.
SEARS, ROEBUCK & CO., ANTE, P. 359.  P. 375. 

2.  THE EFFECT OF ADMITTED FACTS IS A QUESTION OF LAW.  P. 376. 

NELSON, CHAIRMAN OF THE STATE TAX COMMISSION, ET AL. V. MONTGOMERY
WARD & CO., INC. 

CERTIORARI TO THE SUPREME COURT OF IOWA. 

CERTIORARI, 311 U.S. 630, TO REVIEW THE AFFIRMANCE BY THE STATE
SUPREME COURT OF A DECREE ENJOINING THE ENFORCEMENT AGAINST RESPONDENT
OF PROVISIONS OF THE IOWA USE TAX ACT AS APPLIED TO MAIL ORDER SALES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS IDENTICAL WITH THAT IN NELSON V. SEARS,
ROEBUCK & CO., ANTE, P. 359.  RESPONDENT IS AN ILLINOIS CORPORATION
AUTHORIZED TO DO BUSINESS IN IOWA.  RESPONDENT OPERATES RETAIL STORES
AND MAIL ORDER HOUSES THROUGHOUT THE UNITED STATES.  IT HAS 29 RETAIL
STORES  FN1 AND SEVERAL ORDER OFFICES IN IOWA.  IT COLLECTS THE IOWA
TAX ON SALES MADE AT THE RETAIL STORES AND ON SALES HANDLED BY THOSE
ORDER OFFICES.  BUT IT HAS REFUSED TO COLLECT THE TAX  FN2  ON ORDERS
SENT DIRECTLY FROM IOWA CUSTOMERS TO ITS OUT OF STATE MAIL ORDER HOUSES
AND FILLED BY DIRECT SHIPMENTS THROUGH THE MAILS OR A COMMON CARRIER TO
THE PURCHASERS IN IOWA.  RESPONDENT, IN SEEKING AN AFFIRMANCE OF THE
JUDGMENT OF THE IOWA SUPREME COURT  FN3  (228 IA. 1301; 292 N.W. 142)
WHICH HELD THAT THE IOWA USE TAX AS APPLIED TO THESE MAIL ORDERS IS
UNCONSTITUTIONAL,  FN4  MAKES SUBSTANTIALLY THE SAME ARGUMENTS  FN5  AS
WERE ADVANCED IN NELSON V. SEARS, ROEBUCK & CO., SUPRA. DISTRIBUTION OF
CATALOGUES IN IOWA APPARENTLY INVOLVES NO ACT OF RESPONDENT OR ITS
AGENTS WITHIN THE STATE.  THERE WAS TESTIMONY THAT NO EMPLOYEE OF THE
MAIL ORDER HOUSES LIVES IN IOWA; THAT THERE ARE NO ACTS OF RESPONDENT
IN IOWA IN REGARD TO ANY OF THE ORDERS SENT TO THE OUT OF STATE MAIL
ORDER HOUSES; AND THAT RESPONDENT HAS NO MACHINERY FOR COLLECTING SUMS
DUE FROM IOWA CUSTOMERS BY INDIVIDUALS WITHIN THE STATE, IT NOT BEING
THE PRACTICE OF RESPONDENT TO REFER ITS DELINQUENT MAIL ORDER ACCOUNTS
TO ITS RETAIL STORES IN IOWA FOR COLLECTION.  THOSE FACTS ARE
IMMATERIAL.  SOME OF RESPONDENT'S EMPLOYEES ARE IN IOWA REPRESENTING IT
IN THE COURSE OF BUSINESS WHICH IT IS CONDUCTING PURSUANT TO ITS PERMIT
TO DO BUSINESS IN THAT STATE.  THE FACT THAT OTHER OF ITS EMPLOYEES WHO
WORK IN THE MAIL ORDER HOUSES AND HANDLE THE MAIL ORDERS HERE INVOLVED
ARE NOT IN IOWA IS WHOLLY IRRELEVANT.  IT DOES NOT PERMIT RESPONDENT TO
ESCAPE THE BURDEN WHICH IOWA HAS EXACTED AS A PRICE OF ENJOYING THE
FULL BENEFITS FLOWING FROM ITS AGGREGATE IOWA BUSINESS.  NELSON V.
SEARS, ROEBUCK & CO., SUPRA. 

THERE IS A FURTHER FACT IN THIS RECORD WHICH MAKES A REVERSAL OF THIS
JUDGMENT NECESSARY.  IT WAS STIPULATED THAT "ADVERTISEMENTS HAVE BEEN
CAUSED TO BE PRINTED BY THE RETAIL STORES OF THE PETITIONER (MONTGOMERY
WARD AND CO.)  IN THE STATE OF IOWA, ADVERTISING NOT ONLY RETAIL
MERCHANDISE, BUT THE ABILITY TO COMPLETE SERVICE THROUGH THE USE OF THE
CATALOG."  THIS STIPULATION CLEARLY MEANS THAT RESPONDENT HAS SOLICITED
MAIL ORDER SALES IN IOWA.  THE FACT THAT THAT SOLICITATION WAS DONE
THROUGH LOCAL ADVERTISEMENTS RATHER THAN DIRECTLY BY LOCAL AGENTS AS IN
FELT & TARRANT MFG. CO. V. GALLAGHER, 306 U.S. 62, IS IMMATERIAL.  NOR
IS IT MATERIAL THAT THE ORDERS WERE FILLED BY DIRECT SHIPMENTS FROM
POINTS OUTSIDE THE STATE TO PURCHASERS WITHIN THE STATE.  FOR THAT
METHOD OF DELIVERY ALSO OBTAINED IN CASE OF SOME OF THE ORDERS INVOLVED
IN FELT & TARRANT MFG. CO. V. GALLAGHER, SUPRA. 

THE EFFECT OF ADMITTED FACTS IS A QUESTION OF LAW.  SWIFT & CO V.
HOCKING VALLEY RY. CO., 243 U.S. 281; ESTATE OF SANFORD V.
COMMISSIONER, 308 U.S. 39, 51.  REVERSED. 

FN1  THE INVESTMENT IN THESE STORES IS OVER $900,000.  THE
APPROXIMATE SALES BY THESE STORES IN 1937 WAS $7,716,000. 

FN2  IN THE CATALOGUES SENT INTO IOWA THERE WAS THE FOLLOWING
NOTICE: 

"TO OUR IOWA CUSTOMERS: 

WE BELIEVE THAT CERTAIN OF THE PROVISIONS OF THE IOWA USE TAX LAW AS
APPLIED TO OUR BUSINESS, ARE UNCONSTITUTIONAL.  THEREFORE WE ARE NOT
COLLECTING OR REPORTING THE USE TAX ON MAIL ORDERS SENT BY IOWA
CUSTOMERS DIRECT TO ANY OF OUR MAIL ORDER HOUSES. 

UNTIL YOU HEAR FROM US TO THE CONTRARY, MAIL IN YOUR ORDERS JUST AS
YOU HAVE IN THE PAST.  MONTGOMERY WARD & CO." 

IT WAS TESTIFIED THAT THE PURPOSE OF THIS NOTICE WAS NOT TO INTIMATE
TO IOWA PURCHASERS THAT BY MAILING THEIR ORDERS TO MAIL ORDER HOUSES
OUTSIDE THE STATE THEY COULD SECURE A TWO PER CENT DIFFERENTIAL OVER
PURCHASES MADE IN THE STATE. 

FN3  ONE QUESTION, NOT RAISED BY THE PETITION FOR CERTIORARI, RELATED
TO THE DUTY OF RESPONDENT TO COLLECT THE USE TAX ON SALES MADE IN
RETAIL STORES LOCATED NEAR, BUT OUTSIDE, THE BOUNDARIES OF IOWA, WHERE
THE PURCHASER WAS A RESIDENT OF IOWA AND PURCHASED THE PROPERTY FOR USE
IN IOWA.  THE SUPREME COURT OF IOWA, ONE JUDGE DISSENTING, HELD THAT
THE USE TAX ACT AS APPLIED TO THESE TRANSACTIONS WAS UNCONSTITUTIONAL. 
CHIEF JUSTICE HAMILTON, WHO DISSENTED FROM THE JUDGMENT AS RESPECTS THE
MAIL ORDERS, CONCURRED INSOFAR AS SALES FROM THE OUT OF STATE RETAIL
STORES WERE CONCERNED, SAYING THAT RESPONDENT "HAS NO FEASIBLE WAY OF
KNOWING OR ASCERTAINING WHERE THE CUSTOMER LIVES OR WHERE HE IS GOING
TO MAKE USE OF THE MERCHANDISE PURCHASED" AND THAT TO IMPOSE THE BURDEN
OF TAX COLLECTION ON IT WOULD BE TO GIVE IT "AN ALMOST IMPOSSIBLE
TASK." 

FN4  RESPONDENT'S BILL ALSO CONTAINED ALLEGATIONS THAT THE USE TAX AS
APPLIED CONTRAVENED CERTAIN PROVISIONS OF THE IOWA CONSTITUTION.  THOSE
ISSUES, HOWEVER, WERE NOT PASSED ON BY THE IOWA SUPREME COURT. 

FN5  ITS EXPERIENCE WITH THE ILLINOIS SALES TAX SHOWS THAT ONLY 75%
OF THE ILLINOIS CUSTOMERS REMIT THE TAX WITH THEIR ORDERS.  DUE BILLS
ARE SENT (EXCEPT FOR DEFICIENCIES LESS THAN TWO CENTS) AND 58% ARE NOT
COLLECTED.  BASED ON THIS EXPERIENCE RESPONDENT ESTIMATES THAT OUT OF
$10,000 OF USE TAXES ON MAIL ORDERS FROM IOWA CUSTOMERS, IT WOULD BE
ABLE TO COLLECT $8,550.  IF NO NOTICES WERE INCLUDED IN THE CATALOGUES
SENT INTO IOWA, THEN BASED ON ITS ILLINOIS EXPERIENCE RESPONDENT
ESTIMATES THAT ONLY 42% OF THE DUE BILLS WOULD BE COLLECTED.  IN
ADDITION TO THESE DEFICITS RESPONDENT ASSERTS THAT IT WOULD INCUR A
DIRECT COST RANGING FROM $890 TO $1,040 FOR EVERY $10,000 OF TAX
LIABILITY. 

MR. JUSTICE STONE TOOK NO PART IN THE CONSIDERATION OR DISPOSITION OF
THIS CASE. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS DISSENT FOR THE REASONS
STATED IN THE DISSENTING OPINION IN NELSON V. SEARS, ROEBUCK & CO.,
ANTE, P. 366. 
..END :







KELLEAM V. MARYLAND CASUALTY CO., 312 U.S. 377 


NO. 349.  ARGUED FEBRUARY 5, 1941.  - DECIDED FEBRUARY 17, 1941.  - 112
F.2D 940, REVERSED. 


1.  A FEDERAL COURT OF EQUITY SHOULD NOT GRANT A RECEIVERSHIP EXCEPT
AS ANCILLARY TO SOME PRIMARY RELIEF WHICH IS SOUGHT AND WHICH EQUITY
MAY APPROPRIATELY GRANT.  P. 380. 

2.  THE REASONS FOR SUCH RESTRAINT ARE REINFORCED WHERE THE RIGHTS TO
THE PROPERTY SOUGHT TO BE CONSERVED BY A RECEIVERSHIP ARE BEING
LITIGATED IN A STATE COURT.  P. 381. 

3.  A REMEDIAL RIGHT TO PROCEED IN A FEDERAL COURT SITTING IN EQUITY
CAN NOT BE ENLARGED BY A STATE STATUTE.  P. 382. 

4.  AFTER AN ESTATE HAD BEEN DISTRIBUTED TO HEIRS AND THE
ADMINISTRATOR AND HIS SURETY DISCHARGED BY A DECREE OF A STATE PROBATE
COURT, AND WHILE AN APPEAL BY OTHER HEIRS FROM A REFUSAL OF THAT COURT
TO SET ASIDE THE DECREE FOR FRAUD WAS PENDING BEFORE ANOTHER STATE
COURT, THE SURETY COMPANY ENTERED A FEDERAL COURT ON THE GROUND OF
DIVERSITY OF CITIZENSHIP AND SOUGHT PROTECTION AGAINST ITS CONTINGENT
LIABILITY BY A BILL WHICH IMPLEADED ALL OF THE HEIRS, ALLEGING THAT THE
PROBATE DECREE WAS FRAUDULENT AND PRAYING THAT THE DEFENDANTS BE
REQUIRED TO SET UP THEIR CLAIMS AND THAT A RECEIVER BE APPOINTED TO
PRESERVE THE PROPERTY PENDING THE OUTCOME OF THEIR DISPUTE.  FOR OUGHT
THAT APPEARED, THE SURETY COULD HAVE OBTAINED PROTECTION IN THE CAUSE
PENDING IN THE STATE COURT.  HELD: 

(1)  THAT APPOINTMENT BY THE FEDERAL COURT OF A RECEIVER WAS AN ABUSE
OF DISCRETION.  P. 382. 

(2)  SINCE THE BILL SHOULD HAVE BEEN DISMISSED AS TO THE SURETY, IT
HAVING NO PRESENT CLAIM TO RELIEF ON ITS OWN BEHALF IN THE FEDERAL
COURT, THAT COURT HAD NO JURISDICTION TO ADJUDICATE THE CLAIMS OF THE
HEIRS, THERE NOT BEING DIVERSITY OF CITIZENSHIP BETWEEN THEM.  P. 382. 

(3)  IF THE BILL WERE TO BE CONSTRUED AS PRESENTING A CONTROVERSY
BETWEEN HEIRS WHICH THE FEDERAL COURT MIGHT OTHERWISE HAVE JURISDICTION
TO ADJUDICATE, THAT COURT COULD NOT PROPERLY PROCEED BECAUSE THE VERY
CONTROVERSY WAS BEFORE A STATE COURT IN AN ACTION NOT SIMPLY IN
PERSONAM BUT INVOLVING ADJUDICATION OF RIGHTS TO SPECIFIC PROPERTY.  P.
382. 

KELLEAM ET AL. V. MARYLAND CASUALTY CO. OF BALTIMORE, MD., ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 311 U.S. 627, TO REVIEW THE AFFIRMANCE OF A DECREE
APPOINTING A RECEIVER, PROVIDING FOR EXONERATION OF THE ADMINISTRATOR'S
SURETY, ADJUDICATING THE RIGHTS OF HEIRS IN A DECEDENT'S ESTATE,
ESTABLISHING A LIEN, ORDERING AN ACCOUNTING, ETC. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CONTROVERSY HAS ITS ORIGIN IN A PROBATE PROCEEDING IN AN
OKLAHOMA COURT.  PETITIONER, E. A. KELLEAM, WAS ADMINISTRATOR IN THAT
PROCEEDING.  RESPONDENT, MARYLAND CASUALTY COMPANY, WAS SURETY ON HIS
BOND.  THE PROBATE COURT HELD THAT ALL OF DECEDENT'S PROPERTY WAS A
MATERNAL ANCESTRAL ESTATE TO WHICH THE FULL-BLOOD HEIRS, E. A. KELLEAM
AND NELL SOUTHARD, WERE ENTITLED TO THE EXCLUSION OF THE HALF-BLOOD
HEIRS, THE INDIVIDUAL RESPONDENTS HERE.  SUCH DISTRIBUTION WAS ORDERED
AND THE ADMINISTRATOR AND MARYLAND CASUALTY COMPANY WERE DISCHARGED
FROM FURTHER LIABILITY.  NO APPEAL WAS TAKEN; BUT SHORTLY THEREAFTER
THE HALF-BLOOD HEIRS BROUGHT AN ACTION IN THE OKLAHOMA COURT TO SET
ASIDE THAT DECREE, ALLEGING THAT PETITIONERS E. A. KELLEAM AND NELL
SOUTHARD HAD PERPETRATED A FRAUD UPON THE PROBATE COURT AND THAT THE
HALF-BLOODS WERE ENTITLED TO PARTICIPATION, THE ESTATE BEING A GENERAL
NOT AN ANCESTRAL ESTATE.  A DEMURRER TO THE COMPLAINT WAS SUSTAINED AND
AN APPEAL WAS TAKEN TO THE OKLAHOMA DISTRICT COURT WHERE IT IS NOW
PENDING.  AFTER THAT SUIT HAD BEEN COMMENCED  FN1  RESPONDENT-SURETY,
LEARNING THAT E. A. KELLEAM AND NELL SOUTHARD HAD TRANSFERRED SOME OF
THE PROPERTY RECEIVED FROM THE ESTATE,  FN2  BROUGHT THIS SUIT IN THE
UNITED STATES DISTRICT COURT, JOINING THE FULL-BLOODS AND THE HALF
BLOODS AS DEFENDANTS AND INVOKING FEDERAL JURISDICTION ON THE BASIS OF
DIVERSITY OF CITIZENSHIP.  IN THIS SUIT IN EQUITY FN3  RESPONDENT
SURETY SOUGHT EXONERATION ON ITS BOND, ALLEGED THAT ITS REMEDY AT LAW
WAS INADEQUATE, AND PRAYED THAT A RECEIVER BE APPOINTED TO PRESERVE THE
DECEDENT'S PROPERTY PENDING THE OUTCOME OF THE DISPUTE BETWEEN THE
HEIRS, AND THAT THE PARTIES BE REQUIRED TO SET UP WHATEVER CLAIMS THEY
MIGHT HAVE TO THE PROPERTY.  BY THEIR ANSWER AND CROSS-PETITION, THE
HALF-BLOODS RENEWED THEIR CLAIMS OF FRAUD IN THE PROBATE DECREE AND
JOINED IN THE PRAYER FOR THE APPOINTMENT OF A RECEIVER.  THE ANSWERS OF
PETITIONERS ALLEGED, INTER ALIA, LACK OF JURISDICTION IN THE FEDERAL
COURT BY REASON OF THE ACTION IN THE STATE COURT; AND THEY MOVED TO
STRIKE THE CROSS-PETITION FOR LACK OF JURISDICTION.  BY AN AMENDMENT TO
ITS BILL RESPONDENT-SURETY ADDED ALLEGATIONS CHARGING FRAUD IN THE
PROBATE DECREE.  THE DISTRICT COURT FOUND THAT PETITIONERS E. A.
KELLEAM AND NELL SOUTHARD, KNOWING OF THE EXISTENCE OF THE OTHER HEIRS,
FRAUDULENTLY CONCEALED THOSE FACTS FROM THE PROBATE COURT, GAVE NO
NOTICE TO THE OTHER HEIRS AS REQUIRED BY LAW, AND REPRESENTED THAT E.
A. KELLEAM WAS A RESIDENT OF OKLAHOMA WHEN HE WAS NOT; THAT THE
ADMINISTRATOR FAILED TO APPOINT A SERVICE AGENT AS REQUIRED BY OKLAHOMA
STATUTES; THAT THE ESTATE WAS FRAUDULENTLY REPRESENTED AS AN ANCESTRAL
ESTATE AND THAT PETITIONERS E. A. KELLEAM AND NELL SOUTHARD IN
FURTHERANCE OF THE PLAN TO DEFRAUD THE HALF-BLOODS CONSUMMATED A
SETTLEMENT WITH SOME OF THEM IN EXCHANGE FOR THEIR AGREEMENT NOT TO
CONTEST THE PROBATE DECREE; THAT THAT DECREE, HAVING BEEN OBTAINED BY
FRAUD, WAS VOID AS TO THE HALF-BLOODS; THAT THE INTERMEDIATE
CONVEYANCES BY PETITIONERS E. A. KELLEAM AND NELL SOUTHARD WERE
FRAUDULENT; THAT THE REMAINING ASSETS OF THE ESTATE WERE IN DANGER OF
BEING DISSIPATED; THAT RESPONDENT-SURETY WOULD BECOME LIABLE TO THE
HALF-BLOODS FOR FAILURE OF THE ADMINISTRATOR TO PERFORM HIS DUTIES; AND
THAT THE PROPERTY SHOULD BE PRESERVED PENDING A FINAL ORDER OF
ACCOUNTING.  ACCORDINGLY, IT APPOINTED A RECEIVER, DECREED THAT
RESPONDENT-SURETY WAS ENTITLED TO EXONERATION BY HAVING DESIGNATED
PROPERTY APPLIED TO THE SATISFACTION OF THE INTERESTS OF THE HALF
BLOODS, DECREED THAT THE HALF-BLOODS WERE OWNERS OF DESIGNATED
UNDIVIDED INTERESTS IN THE ESTATE, ESTABLISHED A LIEN THEREON, AND
ORDERED PETITIONERS E. A. KELLEAM AND NELL SOUTHARD TO ACCOUNT.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  112 F.2D 940.  WE GRANTED
CERTIORARI BECAUSE OF THE CHALLENGED PROPRIETY OF THE ACTION OF THE
DISTRICT COURT IN APPOINTING A RECEIVER AND IN ADJUDICATING MATTERS AT
ISSUE IN THE STATE COURT. 

WE THINK THE BILL SHOULD HAVE BEEN DISMISSED. 

THE ESSENTIAL PURPOSE OF THE BILL WAS TO SECURE THE APPOINTMENT OF A
RECEIVER SO AS TO CONSERVE THE PROPERTY AND TO IMPRESS IT WITH A LIEN
FOR THE SURETY'S PROTECTION.  THE SURETY HAD NO STAKE IN THE OUTCOME OF
THE DISPUTE AMONG THE HEIRS BEYOND ITS CONTINGENT RIGHT TO
EXONERATION.  IN THIS POSTURE OF THE CASE IT IS MANIFEST THAT
RESPONDENT-SURETY SOUGHT THE RECEIVERSHIP NOT AS A MEANS TO AN END BUT
AS AN END IN ITSELF.  THE RECEIVERSHIP WAS ANCILLARY ONLY IN THE SENSE
THAT IT WAS PROTECTIVE OF THE SURETY WHATEVER THE FUTURE OUTCOME OF THE
CONTROVERSY BETWEEN THE HEIRS.  THE SURETY WAS NOT PRESENTLY LIABLE ON
ITS BOND; ITS LIABILITY AND ITS RIGHT TO EXONERATION WERE WHOLLY
CONTINGENT, BEING DEPENDENT ON A SUCCESSFUL ATTACK ON THE PROBATE
DECREE BY THE HALF-BLOODS.  THAT ATTACK WAS CURRENTLY BEING MADE IN THE
STATE COURT. 

ACCORDINGLY, A RECEIVER SHOULD NOT HAVE BEEN APPOINTED.  THE ERROR IN
THE APPOINTMENT WAS NOT A QUESTION OF AUTHORITY BUT OF PROPRIETY. 
PENNSYLVANIA V. WILLIAMS, 294 U.S. 176; GORDON V. WASHINGTON, 295 U.S.
30.  AS THIS COURT STATED IN THE GORDON CASE (P. 37):  "A RECEIVERSHIP
IS ONLY A MEANS TO REACH SOME LEGITIMATE END SOUGHT THROUGH THE
EXERCISE OF THE POWER OF A COURT OF EQUITY.  IT IS NOT AN END IN
ITSELF."  RECEIVERSHIPS FOR CONSERVATION OF PROPERTY "ARE TO BE WATCHED
WITH JEALOUS EYES LEST THEIR FUNCTION BE PERVERTED."  MICHIGAN V.
MICHIGAN TRUST CO., 286 U.S. 334, 345.  THIS COURT HAS FREQUENTLY
ADMONISHED THAT A FEDERAL COURT OF EQUITY SHOULD NOT APPOINT A RECEIVER
WHERE THE APPOINTMENT IS NOT A REMEDY AUXILIARY TO SOME PRIMARY RELIEF
WHICH IS SOUGHT AND WHICH EQUITY MAY APPROPRIATELY GRANT.  BOOTH V.
CLARK, 17 HOW.  322, 331; PUSEY & JONES CO. V. HANSSEN, 261 U.S. 491;
GORDON V. WASHINGTON, SUPRA.  AND THE REASONS FOR SUCH RESTRAINT ARE
REINFORCED WHERE THE RIGHTS TO THE PROPERTY SOUGHT TO BE CONSERVED BY A
RECEIVERSHIP ARE BEING LITIGATED IN A STATE COURT.  CF. PENN GENERAL
CASUALTY CO. V. PENNSYLVANIA, 294 U.S. 189; PENNSYLVANIA V. WILLIAMS,
SUPRA.  THERE WAS HERE NO ACCRUED RIGHT OF THE SURETY AS RESPECTS THE
ENFORCEMENT OF WHICH THE RECEIVERSHIP WAS AN ANCILLARY REMEDY, ITS
RIGHT TO EXONERATION BEING WHOLLY CONTINGENT.  FN4  THE EXISTENCE OF
ANY RIGHT TO EXONERATION WAS DEPENDENT ON THE OUTCOME OF THE ACTION
WHICH WAS PENDING IN THE OKLAHOMA COURT.  IN VIEW OF THOSE
CIRCUMSTANCES, EQUITY PRACTICE DOES NOT SANCTION THE USE OF A
CONSERVATION RECEIVERSHIP TO PROTECT SUCH A CLAIM.  FURTHERMORE, FROM
ALL THAT APPEARS, THE SURETY COULD BE ADEQUATELY PROTECTED IN THE CAUSE
PENDING IN THE OKLAHOMA COURT BY PROVISIONAL REMEDIES OR OTHERWISE. 

RESPONDENT-SURETY CONTENDS THAT UNDER OKLAHOMA STATUTES A SURETY MAY
OBTAIN INDEMNITY AGAINST HIS PRINCIPAL EVEN BEFORE THE DEBT IS DUE AND
RECEIVE THE PROTECTION OF VARIOUS PROVISIONAL REMEDIES.  EVEN SO, A
"REMEDIAL RIGHT TO PROCEED IN A FEDERAL COURT SITTING IN EQUITY CANNOT
BE ENLARGED BY A STATE STATUTE."  PUSEY & JONES CO. V. HANSSEN, SUPRA,
P. 497. 

FOR THESE REASONS, THE APPOINTMENT OF THE RECEIVER WAS AN ABUSE OF
DISCRETION. 

SINCE RESPONDENT-SURETY HAD NO PRESENT CLAIM TO RELIEF ON ITS OWN
BEHALF IN THE FEDERAL COURT, THAT COURT HAD NO JURISDICTION TO
ADJUDICATE THE DISPUTE BETWEEN THE FULL-BLOODS AND THE HALF-BLOODS. 
EVEN IF, ON THIS RECORD, THE PRESENCE OF RESPONDENT-SURETY WOULD
SUPPORT A CLAIM TO DIVERSITY OF CITIZENSHIP, THAT DIVERSITY WAS LACKING
AS BETWEEN THE OTHER PARTIES.  HENCE ONCE THE BILL OF COMPLAINT WERE
DISMISSED, NO JURISDICTION WOULD REMAIN FOR ANY GRANT OF RELIEF UNDER
THE CROSS-PETITION.  SEE KROMER V. EVERETT IMP.  CO., 110 F. 22.  AND
EVEN IF THE BILL BE CONSTRUED AS DRAWING IN ISSUE THE MERITS OF THE
CONTROVERSY BETWEEN THE HEIRS WHICH THE FEDERAL COURT HAD JURISDICTION
TO ADJUDICATE WITHIN THE RULE OF ARROWSMITH V. GLEASON, 129 U.S. 86,
AND SUTTON V. ENGLISH, 246 U.S. 199, 205, THAT COURT COULD NOT WITH
PROPRIETY PROCEED.  A CASE INVOLVING THAT VERY CONTROVERSY WAS PENDING
IN THE OKLAHOMA COURT.  THAT CASE DID NOT INVOLVE SIMPLY AN IN PERSONAM
ACTION.  CF. KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226.  IT
INVOLVED AN ADJUDICATION OF RIGHTS TO SPECIFIC PROPERTY DISTRIBUTED
PURSUANT TO A PROBATE DECREE.  CF. PENN GENERAL CASUALTY CO. V.
PENNSYLVANIA, SUPRA, AT P. 195.  THE FEDERAL COURT THEREFORE SHOULD NOT
HAVE ASSERTED ITS AUTHORITY.  IN SUCH A CASE IT IS "IN THE PUBLIC
INTEREST THAT FEDERAL COURTS OF EQUITY SHOULD EXERCISE THEIR
DISCRETIONARY POWER WITH PROPER REGARD FOR THE RIGHTFUL INDEPENDENCE OF
STATE GOVERNMENTS IN CARRYING OUT THEIR DOMESTIC POLICY."  PENNSYLVANIA
V. WILLIAMS, SUPRA, P. 185.  REVERSED. 

FN1  RESPONDENT-SURETY APPARENTLY WAS SERVED WITH NOTICE OF THAT SUIT
AND APPEARED THEREIN FOR THE PURPOSE OF QUASHING THE NOTICE. 

FN2  ACCORDING TO THE FINDINGS BELOW, TRANSFERS WERE MADE TO
PETITIONERS JOE E. KELLEAM AND JOE R. SOUTHARD, JR. 

FN3  THIS WAS NOT A BILL OF INTERPLEADER UNDER 49 STAT. 1096, 28
U.S.C. SEC. 41(26) NOR A SUIT UNDER THE FEDERAL DECLARATORY JUDGMENT
ACT, 48 STAT. 955, 49 STAT. 1027; 28 U.S.C. SEC. 400. 

FN4  CF. GLADES COUNTY V. DETROIT FIDELITY & SURETY CO., 57 F.2D 449,
452; MORELY CONSTRUCTION CO. V. MARYLAND CASUALTY CO., 90 F.2D 976;
SOUTHWESTERN SURETY INS. CO. V. WELLS, 217 F. 294; CENTRAL SURETY &
INS. CORP. V. BAGLEY, 44 F.2D 808; ARANT, SURETYSHIP (1931) PP. 318
321. 
..END :




















WALKER V. JOHNSTON, 312 U.S. 275 


NO. 173.  ARGUED JANUARY 15, 1941.  - DECIDED FEBRUARY 10, 1941.  - 109
F.2D 436, REVERSED. 


1.  UNDER THE STATUTE GOVERNING HABEAS CORPUS, THE WRIT MAY BE DENIED
IF, UPON THE FACE OF THE PETITION, IT APPEARS THAT THE PETITIONER IS
NOT ENTITLED TO IT.  P. 284. 

2.  THE PRACTICE OF ISSUING AN ORDER TO SHOW CAUSE AND PERMITTING THE
RELATOR TO REPLY TO THE RESPONDENT'S RETURN, THUS AVOIDING USELESS
ISSUANCE OF THE WRIT AND PRODUCTION OF THE PRISONER AND WITNESSES IN
CASES WHERE IT APPEARS UPON THE FACE OF THE PAPERS THAT NO MATERIAL
ISSUE OF FACT IS INVOLVED AND THAT AS A MATTER OF LAW NO CAUSE FOR
GRANTING THE WRIT EXISTS,  - IS A SETTLED PRACTICE PERMITTED BY THE
STATUTE.  P. 284. 

3.  WHERE THE PETITION AND TRAVERSE ON THE ONE HAND AND THE RETURN ON
THE OTHER RAISE SUBSTANTIAL ISSUES OF FACT THE WRIT MUST BE GRANTED,
THE PRISONER PRODUCED AND HIS CASE DETERMINED UPON A HEARING OF
EVIDENCE AND ARGUMENT; THE STATUTE DOES NOT ALLOW A DISPOSITION OF THE
CASE UPON EX PARTE AFFIDAVITS.  P. 285. 

4.  ONE WHO, THROUGH THE DECEPTION OR COERCION OF THE PROSECUTING
ATTORNEY, IS INDUCED TO PLEAD GUILTY TO AN INDICTMENT FOR A FEDERAL
OFFENSE, WITHOUT THE ADVICE OF COUNSEL AND IN IGNORANCE OF HIS RIGHT TO
SUCH ADVICE, IS DEPRIVED OF A CONSTITUTIONAL RIGHT.  P. 286. 

5.  ON A HEARING IN HABEAS CORPUS, THE PRISONER IS UNDER THE BURDEN
OF PROVING BY A PREPONDERANCE OF EVIDENCE THE FACTS WHICH, HE ALLEGES,
ENTITLE HIM TO A DISCHARGE.  P. 286. 

WALKER V. JOHNSTON, WARDEN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 311 U.S. 635, TO REVIEW THE AFFIRMANCE OF A JUDGMENT IN
HABEAS CORPUS DISCHARGING A RULE TO SHOW CAUSE AND DISMISSING THE
PETITION FOR THE WRIT. 

THE APPLICATION FOR THE WRIT IS GOOD ON ITS FACE.  THE ULTIMATE ISSUE
IS ONE OF FACT.  THE DISTRICT COURT SHOULD HAVE ISSUED THE WRIT, HELD A
FULL JUDICIAL INQUIRY AND SPECIFICALLY FOUND THE FACTS. 

THE ALLEGATIONS OF THE PETITION STATE A CASE OF IMPRISONMENT IN
VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS.  THIS IS SHOWN BY
PRECEDENTS IN THIS COURT, THE HISTORICAL BACKGROUND OF THE SIXTH
AMENDMENT, AND MODERN VIEWS OF THE RIGHTS OF INDIGENT PRISONERS.  THE
CASE FALLS WITHIN JOHNSON V. ZERBST, 304 U.S. 458, AND POWELL V.
ALABAMA, 287 U.S. 45, WHICH DECIDE THAT AN INDIGENT PRISONER CHARGED
WITH A SERIOUS CRIME IS ENTITLED TO THE ASSIGNMENT OF COUNSEL WITHOUT
COST, AT EVERY STEP OF THE PROCEEDINGS, TO AID HIM IN SCRUTINIZING THE
INDICTMENT AND IN PREPARING THE CASE AS WELL AS ACTUALLY TRYING IT. 

THE SIXTH AMENDMENT WAS, AS CONTEMPORARY EVIDENCE INDICATES, DESIGNED
TO REQUIRE IN ALL SERIOUS CRIMINAL PROSECUTIONS THE SAME RIGHT TO THE
FREE ASSIGNMENT OF COUNSEL PRIOR TO ARRAIGNMENT WHICH EXISTED UNDER THE
ENGLISH TREASON ACT OF 1695(WELL KNOWN TO THE AMERICAN COLONISTS BY ITS
CITATION IN BLACKSTONE, COMMENTARIES, BOOK IV, P. 356), AND WHICH WAS
PROPOSED TO THE FRENCH DRAFTSMEN OF THE DECLARATION OF RIGHTS
(LAROCHELLE, CAHIER DU TIERS, III, 161).  FURTHERMORE, PRECEDENT AND
HISTORY ASIDE, MODERN COMMENTATORS REGARD ASSISTANCE OF COUNSEL PRIOR
TO ARRAIGNMENT AS A PREREQUISITE OF DUE PROCESS.  SEE NATIONAL
COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT (POPULARLY KNOWN AS THE
WICKERSHAM COMMISSION), REPORT ON LAWLESSNESS IN LAW ENFORCEMENT, VOL.
IV, PP. 5, 7, 281. 

SINCE THE APPLICATION IS GOOD ON ITS FACE, AND THE ULTIMATE ISSUE IS
ONE OF FACT, THE DISTRICT COURT WAS REQUIRED BY STATUTE TO ISSUE THE
WRIT.  R.S. SECS. 755, 758.  THIS IS THE PRACTICE FOLLOWED IN THE
ORDERS OF THIS COURT (NG FUNG HO V. WHITE, 259 U.S. 276, 285) AS WELL
AS IN MOST, THOUGH NOT ALL, OF THE INFERIOR FEDERAL COURTS, AND IN
ENGLAND.  IT IS A PRACTICE WHICH IS DEMANDED BY CONSIDERATIONS OF FAIR
PLAY, AND HAS NOT BEEN FOUND INCONVENIENT OR IMPRACTICAL IN ATLANTA
WHERE ONE OF THE LARGEST UNITED STATES PENITENTIARIES IS LOCATED. 
MOREOVER, CONVENIENCE IS NOT AN APPROPRIATE CONSIDERATION IN A
PROCEEDING THAT PLACES AT STAKE LIBERTY OF THE PERSON. 

WHEN THE PETITIONER IS BROUGHT INTO COURT ON THE WRIT HE IS ENTITLED
TO A FULL INQUIRY INTO THE FACTS AND TO SPECIFIC FINDINGS OF FACT BY
THE TRIAL COURT.  MOORE V. DEMPSEY, 261 U.S. 86, 92; JOHNSON V. ZERBST,
304 U.S. 458. 

THE GOVERNMENT CONCEDES THAT PETITIONER'S RIGHT TO THE ISSUANCE OF
THE WRIT OF HABEAS CORPUS MUST BE TESTED BY THE ALLEGATIONS OF THE
PETITION AND TRAVERSE AND THE UNCONTRADICTED OR IRREFUTABLE ALLEGATIONS
OF THE RETURN. 

NEITHER THE FIFTH NOR THE SIXTH AMENDMENT REQUIRES THE COURT TO
ASSIGN COUNSEL IN THE ABSENCE OF A REQUEST, UNLESS THE DEFENDANT IS IN
APPARENT NEED OF AID.  JOHNSON V. ZERBST, 304 U.S. 458, DISTINGUISHED. 
SEE POWELL V. ALABAMA, 287 U.S. 45. 

THE DISTINCTION BETWEEN A TRIAL AND A PLEA OF GUILTY AS EVIDENCE OF
THE NEED FOR COUNSEL IS THE IMPLICIT BASIS OF THE MANY DECISIONS SINCE
JOHNSON V. ZERBST WHICH TREAT A VOLUNTARY PLEA OF GUILTY, MADE WITHOUT
REQUESTING COUNSEL, AS A WAIVER OF THE RIGHT.  A TRIAL JUDGE DOES NOT
ACCEPT A PLEA OF GUILTY WITHOUT ASSURING HIMSELF THAT IT IS VOLUNTARY
AND COMPETENT, AND IF IT IS NOT, IT CAN BE SET ASIDE.  FRAME V.
HUDSPETH, 309 U.S. 632. 

THE ALLEGATIONS OF THE TRAVERSE DO NOT ESTABLISH A REQUEST FOR
COUNSEL OR SHOW THAT THE PLEA WAS NOT VOLUNTARILY MADE.  THE SENTENCE
CONFORMED TO THE PETITIONER'S EXPECTATION AND WAS FAIR.  IT IS NOT
ALLEGED THAT HE HAD A DEFENSE WHICH HE WAS INDUCED TO FOREGO. 

THE RIGHT TO COUNSEL WAS WAIVED.  A WAIVER DOES NOT ALWAYS REQUIRE
"AN INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT." 
JOHNSON V. ZERBST, 304 U.S. AT 464.  WAIVER MAY BE IMPLIED AS A MATTER
OF LAW WHEN REASONS OF EXTRINSIC POLICY JUSTIFY THE IMPLICATION.  SUCH
REASONS ORDINARILY EXIST WHEN A DEFENDANT OF MATURE AGE COMPETENTLY AND
VOLUNTARILY PLEADS GUILTY WITHOUT REQUESTING COUNSEL. 

PETITIONER HAS NOT SHOWN THAT HE ACTUALLY NEEDED COUNSEL.  THEREFORE
THE JUDGMENT CAN NOT BE COLLATERALLY ATTACKED.  EVEN IF THE SIXTH
AMENDMENT IS INTERPRETED TO REQUIRE THAT ALL DEFENDANTS HAVE COUNSEL
UPON ASSIGNMENT OR KNOWINGLY WAIVE THE RIGHT, IT DOES NOT NECESSARILY
FOLLOW THAT WHENEVER THIS HAS NOT OCCURRED THE JUDGMENT IS VOID AND IS
OPEN TO COLLATERAL ATTACK.  THE CONCEPT OF JURISDICTIONAL DEFECT IS NOT
INFLEXIBLE AND EVEN THE AVAILABILITY OF HABEAS CORPUS MAY TURN ON
JUDICIAL DISCRETION. 

IT IS NOT ENOUGH TO SHOW THAT THE ABSTRACT RIGHT WAS DENIED;
PETITIONER MUST ESTABLISH THAT HE WAS IN ACTUAL NEED OF COUNSEL EITHER
IN CHOOSING HIS OWN COURSE OR IN PRESENTING HIS CASE.  PREJUDICE CAN
NOT BE IMPLIED WHEN A DEFENDANT UNDERSTANDINGLY PLEADS GUILTY TO A
VALID INDICTMENT; AND CERTAINLY NOT WHEN HE IS A MAN OF MATURE AGE WHO
HAS PREVIOUSLY BEEN CONVICTED OF CRIME.  IN THE PRESENT CASE, THE ONLY
SIGNIFICANT COMPLAINT IS THAT PETITIONER DID NOT KNOW AND WAS NOT TOLD
OF HIS RIGHT TO COUNSEL.  STANDING ALONE, THIS IS INSUFFICIENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS IMPORTANT QUESTIONS OF PRACTICE TOUCHING THE ISSUE
OF THE WRIT OF HABEAS CORPUS.  WE ACCORDINGLY GRANTED CERTIORARI IN
FORMA PAUPERIS, AND APPOINTED COUNSEL FOR THE PETITIONER TO INSURE
ADEQUATE PRESENTATION AT OUR BAR. 

THE PETITIONER, WHO IS CONFINED IN THE FEDERAL PRISON AT ALCATRAZ,
CALIFORNIA, UNDER SENTENCE AND COMMITMENT OF THE DISTRICT COURT FOR
NORTHERN TEXAS UPON A PLEA OF GUILTY TO AN INDICTMENT CHARGING ARMED
ROBBERY OF A NATIONAL BANK, SOUGHT HABEAS CORPUS IN THE DISTRICT COURT
FOR NORTHERN CALIFORNIA.  HIS PETITION RECITES THAT HE WAS INDICTED IN
THE DISTRICT COURT FOR NORTHERN TEXAS MARCH 9, 1936; THAT THE CAUSE
CAME ON FOR TRIAL APRIL 28, 1936, AND HE PLEADED GUILTY; THAT HE WAS
SENTENCED MAY 1, 1936, TO TWELVE YEARS' IMPRISONMENT, WAS COMMITTED TO
THE PENITENTIARY AT LEAVENWORTH, KANSAS, MAY 4, 1936, AND IS NOW
CONFINED AT ALCATRAZ.  THE PETITION ALLEGES THAT AT TRIAL THE
PETITIONER WAS WITHOUT THE ASSISTANCE OF COUNSEL; THAT HE DID NOT WAIVE
HIS RIGHT TO COUNSEL; THAT THE COURT DID NOT INQUIRE WHETHER HE DESIRED
COUNSEL OR INSTRUCT HIM THAT HE WAS ENTITLED TO COUNSEL; THAT HE DID
NOT KNOW HE WAS SO ENTITLED IF HE HAD NO MONEY TO PAY AN ATTORNEY; AND
THAT THE JUDGMENT OF CONVICTION IS VOID, AS HE WAS DEPRIVED OF THE
ASSISTANCE OF COUNSEL FOR HIS DEFENSE IN VIOLATION OF THE SIXTH
AMENDMENT OF THE CONSTITUTION.  THE PRAYER IS THAT THE WRIT ISSUE AND
THAT HE BE RELEASED FROM CUSTODY. 

THE COURT ISSUED AN ORDER TO SHOW CAUSE ADDRESSED TO THE WARDEN OF
THE PENITENTIARY.  THAT OFFICER FILED A RETURN SHOWING THAT HE HELD THE
PRISONER UNDER A COMMITMENT ISSUED BY THE TEXAS DISTRICT COURT AND A
TRANSFER FROM LEAVENWORTH TO ALCATRAZ ORDERED BY THE DIRECTOR OF THE
BUREAU OF PRISONS OF THE DEPARTMENT OF JUSTICE.  ATTACHED TO THE RETURN
WERE CERTIFIED COPIES OF THE INDICTMENT, MINUTE ENTRIES, SENTENCE, AND
COMMITMENT, AND DOCKET ENTRIES IN THE CAUSE, TRANSFER ORDER, AND RECORD
OF COMMITMENT.  ALSO ATTACHED WERE AFFIDAVITS OF THE UNITED STATES
ATTORNEY, THE ASSISTANT UNITED STATES ATTORNEY, AND THE PROBATION
OFFICER (FORMERLY A DEPUTY MARSHAL) OF THE NORTHERN DISTRICT OF TEXAS. 
THESE AFFIANTS, OR SOME OF THEM, DEPOSED TO THE FOLLOWING EFFECT: THE
PETITIONER WAS JOINTLY INDICTED WITH ONE WHITE, WHO PLEADED NOT GUILTY,
WAS TRIED, CONVICTED, AND SENTENCED; THE PETITIONER HAD NO COUNSEL AS
HE ENTERED A PLEA OF GUILTY.  AT THE TIME OF THE COMMISSION OF THE
OFFENSE FOR WHICH THE PETITIONER WAS INDICTED HE WAS AN ESCAPED CONVICT
FROM THE STATE PENITENTIARY OF NEW MEXICO AND WAS BROUGHT THENCE FOR
TRIAL.  ON THE DAY OF THE TRIAL, THE MARSHAL BROUGHT HIM TO THE FEDERAL
BUILDING WHERE THE DISTRICT ATTORNEY TALKED TO HIM; ASKED HIM WHETHER
HE WAS GUILTY AND HE STATED HE WAS; ASKED HIM IF HE WAS GOING TO PLEAD
GUILTY AND HE STATED HE WAS; ASKED HIM WHETHER HE HAD A LAWYER AND HE
STATED HE DID NOT WANT AN ATTORNEY AS HE THOUGHT AN ATTORNEY WOULD BE
OF NO VALUE TO HIM.  THE DISTRICT ATTORNEY EXPLAINED TO THE PETITIONER
THAT HE THOUGHT THE JUDGE WOULD GIVE HIM GREATER CONSIDERATION, IF HE
WAS GUILTY, ON HIS ENTERING A PLEA OF GUILTY.  THE PETITIONER WAS TOLD
HIS INTERVIEWERS BELIEVED THAT IF HE WOULD TELL THE JUDGE THE TRUTH AND
TESTIFY IN THE CASE AS TO HIS ACCOMPLICES THAT FACT WOULD BE CONSIDERED
BY THE JUDGE IN PASSING SENTENCE.  THE PETITIONER STATED HE WOULD ENTER
A PLEA OF GUILTY BUT WOULD NOT TESTIFY.  HE REFUSED TO SAY WHETHER THE
CO-DEFENDANT WHITE WAS WITH HIM AT THE TIME OF THE ROBBERY AND SAID
THAT HE WOULD PREFER NOT TO MAKE A STATEMENT WITH RESPECT TO OTHER
FACTS IN THE CASE.  ONE AFFIANT STATED HIS BELIEF THAT PETITIONER TOLD
THE JUDGE IN OPEN COURT THAT HE HAD NO COUNSEL AND DID NOT DESIRE ANY
AS HE WAS GUILTY AND INTENDED TO PLEAD GUILTY.  THREE WITNESSES
IDENTIFIED THE PETITIONER AS BEING ONE OF THE MEN WHO ENTERED THE BANK
AND THERE WAS NO QUESTION OF HIS GUILT.  AFTER SENTENCE, PETITIONER
EXPRESSED HIS SATISFACTION AT THE LENGTH OF SENTENCE IMPOSED.  SOME
TIME LATER A LETTER WAS RECEIVED FROM THE PETITIONER THANKING THE
DISTRICT ATTORNEY FOR WHAT HE HAD DONE FOR HIM. 

THE PETITIONER ANSWERED, DENYING THAT HE HAD STATED TO ONE OR MORE OF
THE AFFIANTS, OR IN THE PRESENCE OF ONE OR MORE OF THEM, THAT HE WAS
GUILTY OR THAT HE INTENDED TO PLEAD GUILTY; THAT HE DID NOT WANT AN
ATTORNEY OR FELT THAT AN ATTORNEY WOULD BE OF NO VALUE TO HIM.  HE
ALLEGED THAT HE FIRST LEARNED HE WAS TO BE PROSECUTED FOR THE OFFENSE
IN QUESTION ABOUT APRIL 26, 1936, WHEN A DEPUTY MARSHAL TOOK HIM FROM
NEW MEXICO TO TEXAS; THAT, PRIOR TO TRIAL, THE DISTRICT ATTORNEY, IN
THE PRESENCE OF THE DEPUTY MARSHAL, ASKED HIM TO PLEAD GUILTY AND HE
REPLIED THAT HE INTENDED TO PLEAD NOT GUILTY, WHEREUPON THE DISTRICT
ATTORNEY EXHIBITED TO HIM PICTURES OF THE SCENE OF THE ALLEGED CRIME
AND, BY MEANS OF THEM AND OTHERWISE, SOUGHT TO PERSUADE HIM THAT HE
WOULD BE PROVED GUILTY; THAT THE PETITIONER REFUSED TO TALK FURTHER
WITH THE DISTRICT ATTORNEY AT THAT TIME; THAT THE DISTRICT ATTORNEY
AGAIN VISITED HIM AND THE PETITIONER THEN REQUESTED THAT THE TRIAL BE
CONTINUED SO THAT HE COULD COMMUNICATE WITH HIS RELATIVES AND TRY TO
OBTAIN MONEY TO ENABLE HIM TO HIRE AN ATTORNEY FOR HIS DEFENSE, BUT
THAT THE DISTRICT ATTORNEY ADVISED HIM THIS WAS NOT POSSIBLE AND TOLD
HIM TO PLEAD GUILTY, WARNING HIM THAT HE WOULD BE SENTENCED TO TWICE AS
GREAT A TERM IF HE DID NOT SO PLEAD; THAT THE PETITIONER HAD NO
RELATIVES OR FRIENDS NEAR THE SCENE OF THE TRIAL OTHER THAN HIS
CODEFENDANT WHITE.  HE ALLEGED THAT HE REQUESTED THE DISTRICT ATTORNEY
TO BE PERMITTED TO TALK TO WHITE OR WHITE'S ATTORNEY, BUT THE REQUEST
WAS REFUSED.  IN VIEW OF THE DISTRICT ATTORNEY'S WARNING, AND IN FEAR
OF A HEAVY PRISON TERM, HE TOLD THE DISTRICT ATTORNEY HE WOULD PLEAD
GUILTY.  THE ANSWER ALLEGES THAT PETITIONER HAS NO INFORMATION AND
BELIEF SUFFICIENT TO ENABLE HIM TO ANSWER THE STATEMENT CONCERNING HIS
LETTER CLAIMED TO HAVE BEEN SENT FROM THE PENITENTIARY AND, THEREFORE,
DENIES THE FACT; DENIES THAT THE PETITIONER STATED TO THE JUDGE THAT HE
DID NOT DESIRE COUNSEL APPOINTED FOR HIM OR THAT HE WAS PLEADING GUILTY
BECAUSE HE WAS GUILTY; ALLEGES THAT AT NO TIME WAS PETITIONER INFORMED,
DID HE KNOW OR BELIEVE THAT HE WAS ENTITLED TO THE ASSISTANCE OF
COUNSEL FOR HIS DEFENSE, AND THAT AT NO TIME DID ANYONE ASK HIM IF HE
DESIRED THE ASSISTANCE OF COUNSEL NOR DID ANYONE OFFER TO PROCURE SUCH
ASSISTANCE FOR HIM; AVERS THAT HE WAS WITHOUT MONEY TO PAY FOR COUNSEL
AND BELIEVED HE COULD NOT OBTAIN THE ASSISTANCE OF COUNSEL WITHOUT
MONEY TO PAY A LAWYER; ASSERTS THAT HE ATTENDED SCHOOL TO THE FIFTH
GRADE AND HAD HAD NO FURTHER SCHOOLING OR EDUCATION, WAS ENTIRELY
UNVERSED IN THE LAW AND UNABLE AND UNQUALIFIED TO REPRESENT OR ACT FOR
HIMSELF IN A CRIMINAL PROCEEDING; THAT AT NO TIME WAS HE ASKED TO WAIVE
HIS RIGHT TO THE ASSISTANCE OF COUNSEL NOR DID HE BY WORD OR ACT STATE
OR INDICATE THAT HE WAIVED, OR INTENDED TO WAIVE, THAT RIGHT; DENIES
HIS GUILT AND DENIES THAT THE EVIDENCE PRODUCED AT TRIAL SHOWED HIS
GUILT. 

UPON THESE PLEADINGS THE DISTRICT JUDGE, AFTER HEARING ARGUMENT,
DISCHARGED THE RULE TO SHOW CAUSE AND DISMISSED THE PETITION FOR THE
WRIT.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  FN1 

THE PETITIONER CONTENDED IN THE CIRCUIT COURT OF APPEALS THAT THE
STATUTE REQUIRED THE DISTRICT COURT TO ISSUE THE WRIT AND, UPON HIS
PRODUCTION IN COURT, TO HOLD A HEARING ON THE ISSUES MADE BY THE
PLEADINGS.  THE COURT FOUND IT UNNECESSARY TO PASS ON THE CONTENTION,
SINCE IT HELD "ANOTHER MANNER OF PROCEEDING" (THAT HERE FOLLOWED BY THE
DISTRICT COURT) WAS PERMISSIBLE UNDER OUR DECISIONS.  IT APPROVED THE
SUMMARY DISPOSITION OF THE CASE ON THE PLEADINGS AND AFFIDAVITS
SUBMITTED, AS THE PETITIONER HAD BEEN AFFORDED AN OPPORTUNITY TO SUBMIT
BY AFFIDAVIT WHATEVER HE DEEMED MATERIAL.  IT THOUGHT THE DISTRICT
COURT WAS JUSTIFIED IN DISBELIEVING THE PETITIONER'S ALLEGATIONS AND,
ON THE BASIS OF SUCH DISBELIEF, DISCHARGING THE RULE AND DENYING THE
PETITION.    THE CASE PRESENTS THESE QUESTIONS:  (1) WAS THE DISTRICT
COURT, ON THE FILING OF THE PETITION, BOUND FORTHWITH TO ISSUE THE WRIT
AND HAVE THE PETITIONER PRODUCED IN ANSWER TO IT?  (2) IF THE PROCEDURE
FOLLOWED BY THE DISTRICT COURT WAS PERMISSIBLE, AND THE PLEADINGS
RAISED ISSUES OF FACT, SHOULD THOSE ISSUES HAVE BEEN RESOLVED BY
TESTIMONY RATHER THAN UPON AFFIDAVITS?  (3) DID THE PLEADINGS RAISE ANY
MATERIAL ISSUE OF FACT?    FIRST. THE STATUTES OF THE UNITED STATES
DECLARE THAT THE SUPREME COURT AND THE DISTRICT COURTS SHALL HAVE POWER
TO ISSUE WRITS OF HABEAS CORPUS; FN2  THAT APPLICATION FOR THE WRIT
SHALL BE MADE TO THE COURT OR JUSTICE OR JUDGE AUTHORIZED TO ISSUE THE
SAME BY COMPLAINT IN WRITING, UNDER OATH, SIGNED BY THE PETITIONER,
SETTING FORTH THE FACTS CONCERNING HIS DETENTION, IN WHOSE CUSTODY HE
IS AND BY VIRTUE OF WHAT CLAIM OR AUTHORITY, IF KNOWN.  FN3  THE COURT
OR JUSTICE OR JUDGE "SHALL FORTHWITH AWARD A WRIT OF HABEAS CORPUS,
UNLESS IT APPEARS FROM THE PETITION ITSELF THAT THE PARTY IS NOT
ENTITLED THERETO."  THE WRIT SHALL BE DIRECTED TO THE PERSON IN WHOSE
CUSTODY THE PETITIONER IS DETAINED.  FN4  THE PERSON TO WHOM THE WRIT
IS DIRECTED MUST CERTIFY TO THE COURT OR JUDGE THE TRUE CAUSE OF
DETENTION AND, AT THE SAME TIME HE MAKES HIS RETURN, BRING THE BODY OF
THE PARTY BEFORE THE JUDGE WHO GRANTED THE WRIT.  FN5  WHEN THE WRIT IS
RETURNED A DAY IS TO BE SET FOR THE HEARING, NOT EXCEEDING FIVE DAYS
THEREAFTER, UNLESS THE PETITIONER REQUESTS A LONGER TIME.  FN6  THE
PETITIONER MAY DENY THE FACTS SET FORTH IN THE RETURN OR MAY ALLEGE ANY
OTHER MATERIAL FACTS, UNDER OATH.  FN7  THE COURT OR JUDGE "SHALL
PROCEED IN A SUMMARY WAY TO DETERMINE THE FACTS OF THE CASE, BY HEARING
THE TESTIMONY AND ARGUMENTS, AND THEREUPON TO DISPOSE OF THE PARTY AS
LAW AND JUSTICE REQUIRE."  FN8 

IT WILL BE OBSERVED THAT IF, UPON THE FACE OF THE PETITION, IT
APPEARS THAT THE PARTY IS NOT ENTITLED TO THE WRIT, THE COURT MAY
REFUSE TO ISSUE IT.  SINCE THE ALLEGATIONS OF SUCH PETITIONS ARE OFTEN
INCONCLUSIVE, THE PRACTICE HAS GROWN UP OF ISSUING AN ORDER TO SHOW
CAUSE, WHICH THE RESPONDENT MAY ANSWER.  BY THIS PROCEDURE THE FACTS ON
WHICH THE OPPOSING PARTIES RELY MAY BE EXHIBITED, AND THE COURT MAY
FIND THAT NO ISSUE OF FACT IS INVOLVED.  IN THIS WAY USELESS GRANT OF
THE WRIT WITH CONSEQUENT PRODUCTION OF THE PRISONER AND OF WITNESSES
MAY BE AVOIDED WHERE FROM UNDISPUTED FACTS OR FROM INCONTROVERTIBLE
FACTS, SUCH AS THOSE RECITED IN A COURT RECORD, IT APPEARS, AS MATTER
OF LAW, NO CAUSE FOR GRANTING THE WRIT EXISTS.  ON THE OTHER HAND, ON
THE FACTS ADMITTED, IT MAY APPEAR THAT, AS MATTER OF LAW, THE PRISONER
IS ENTITLED TO THE WRIT AND TO A DISCHARGE.  THIS PRACTICE HAS LONG
BEEN FOLLOWED BY THIS COURT  FN9  AND BY THE LOWER COURTS.  FN10  IT IS
A CONVENIENT ONE, DEPRIVES THE PETITIONER OF NO SUBSTANTIAL RIGHT, IF
THE PETITION AND TRAVERSE ARE TREATED, AS WE THINK THEY SHOULD BE, AS
TOGETHER CONSTITUTING THE APPLICATION FOR THE WRIT, AND THE RETURN TO
THE RULE AS SETTING UP THE FACTS THOUGHT TO WARRANT ITS DENIAL, AND IF
ISSUES OF FACT EMERGING FROM THE PLEADINGS ARE TRIED AS REQUIRED BY THE
STATUTE. 

SECOND.  THE DISTRICT COURT PROCEEDED TO ADJUDICATE THE PETITIONER'S
RIGHT TO THE WRIT UPON THE ALLEGATIONS OF HIS PETITION AND TRAVERSE AND
THOSE OF THE RETURN AND ACCOMPANYING AFFIDAVITS.  THUS THE CASE WAS
DISPOSED OF ON EX PARTE AFFIDAVITS AND WITHOUT THE TAKING OF
TESTIMONY.  THE PRACTICE THUS TO DISPOSE OF APPLICATIONS FOR HABEAS
CORPUS ON MATTERS OF FACT AS WELL AS OF LAW HAS BEEN FOLLOWED IN THE
NINTH AND TENTH CIRCUITS.  FN11 

IN OTHER CIRCUITS, IF AN ISSUE OF FACT IS PRESENTED, THE PRACTICE
APPEARS TO HAVE BEEN TO ISSUE THE WRIT, HAVE THE PETITIONER PRODUCED,
AND HOLD A HEARING AT WHICH EVIDENCE IS RECEIVED.  FN12 THIS IS, WE
THINK, THE ONLY ADMISSIBLE PROCEDURE.  NOTHING LESS WILL SATISFY THE
COMMAND OF THE STATUTE THAT THE JUDGE SHALL PROCEED "TO DETERMINE THE
FACTS OF THE CASE, BY HEARING THE TESTIMONY AND ARGUMENTS."  IT IS NOT
A QUESTION WHAT THE ANCIENT PRACTICE WAS AT COMMON LAW OR WHAT THE
PRACTICE WAS PRIOR TO 1867 WHEN THE STATUTE FROM WHICH R.S. 761 IS
DERIVED WAS ADOPTED BY CONGRESS.  THE QUESTION IS WHAT THE STATUTE
REQUIRES. 

AS WE SAID IN JOHNSON V. ZERBST, 304 U.S. 458, 466, "CONGRESS HAS
EXPANDED THE RIGHTS OF A PETITIONER FOR HABEAS CORPUS  ...  'THERE
BEING NO DOUBT OF THE AUTHORITY OF THE CONGRESS TO THUS LIBERALIZE THE
COMMON LAW PROCEDURE ON HABEAS CORPUS  ...  IT RESULTS THAT UNDER THE
...  INTO THE VERY TRUTH AND SUBSTANCE OF THE CAUSES OF HIS DETENTION,'
...  "  SUCH A JUDICIAL INQUIRY INVOLVES THE RECEPTION OF TESTIMONY,
AS THE LANGUAGE OF THE STATUTE SHOWS. 

THE GOVERNMENT PROPERLY CONCEDES THAT IF THE PETITION, THE RETURN,
AND THE TRAVERSE RAISE SUBSTANTIAL ISSUES OF FACT IT IS THE
PETITIONER'S RIGHT TO HAVE THOSE ISSUES HEARD AND DETERMINED IN THE
MANNER THE STATUTE PRESCRIBES. 

THIRD.  DID THE PLEADINGS PRESENT ANY MATERIAL ISSUE OF FACT?  THE
GOVERNMENT SAYS THEY DID NOT.  IT URGES THAT, CONSTRUED MOST FAVORABLY
TO PETITIONER, THE ALLEGATIONS OF THE PETITION AND THE TRAVERSE DO NOT
SHOW THAT HE WAS IN APPARENT OR ACTUAL NEED OF COUNSEL'S AID; AND DO
DISCLOSE THAT HE VOLUNTARILY WAIVED THE RIGHT TO COUNSEL. 

WITHOUT REPEATING THE ALLEGATIONS OF THE PETITION AND TRAVERSE, WHICH
HAVE BEEN SUMMARIZED ABOVE, WE THINK IT CLEAR THAT, TAKEN TOGETHER,
THEY OVERCOME THE PRESUMPTION OF REGULARITY WHICH THE RECORD OF THE
TRIAL IMPORTS AND THAT, IF THE FACTS ALLEGED WERE ESTABLISHED BY
TESTIMONY TO THE SATISFACTION OF THE JUDGE, THEY WOULD SUPPORT A
CONCLUSION THAT THE PETITIONER DESIRED THE AID OF COUNSEL, AND SO
INFORMED THE DISTRICT ATTORNEY, WAS IGNORANT OF HIS RIGHT TO SUCH AID,
WAS NOT INTERROGATED AS TO HIS DESIRE OR INFORMED OF HIS RIGHT, AND DID
NOT KNOWINGLY WAIVE THAT RIGHT, AND THAT, BY THE CONDUCT OF THE
DISTRICT ATTORNEY, HE WAS DECEIVED AND COERCED INTO PLEADING GUILTY
WHEN HIS REAL DESIRE WAS TO PLEAD NOT GUILTY OR AT LEAST TO BE ADVISED
BY COUNSEL AS TO HIS COURSE.  IF HE DID NOT VOLUNTARILY WAIVE HIS RIGHT
TO COUNSEL,  FN13  OR IF HE WAS DECEIVED OR COERCED BY THE PROSECUTOR
INTO ENTERING A GUILTY PLEA,  FN14  HE WAS DEPRIVED OF A CONSTITUTIONAL
RIGHT.  ON A HEARING HE WOULD HAVE THE BURDEN OF SUSTAINING HIS
ALLEGATIONS BY A PREPONDERANCE OF EVIDENCE.  IT IS TRUE THAT THEY ARE
DENIED IN THE AFFIDAVITS FILED WITH THE RETURN TO THE RULE, BUT THE
DENIALS ONLY SERVE TO MAKE THE ISSUES WHICH MUST BE RESOLVED BY
EVIDENCE TAKEN IN THE USUAL WAY.  THEY CAN HAVE NO OTHER OFFICE.  THE
WITNESSES WHO MADE THEM MUST BE SUBJECTED TO EXAMINATION ORE TENUS OR
BY DEPOSITION AS ARE ALL OTHER WITNESSES.  NOT BY THE PLEADINGS AND THE
AFFIDAVITS, BUT BY THE WHOLE OF THE TESTIMONY, MUST IT BE DETERMINED
WHETHER THE PETITIONER HAS CARRIED HIS BURDEN OF PROOF AND SHOWN HIS
RIGHT TO A DISCHARGE.  THE GOVERNMENT'S CONTENTION THAT HIS ALLEGATIONS
ARE IMPROBABLE AND UNBELIEVABLE CANNOT SERVE TO DENY HIM AN OPPORTUNITY
TO SUPPORT THEM BY EVIDENCE.  ON THIS RECORD IT IS HIS RIGHT TO BE
HEARD. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  109 F.2D 436. 

FN2  R.S. 751, 28 U.S.C. 451. 

FN3  R.S. 754, 28 U.S.C. 454. 

FN4  R.S. 755, 28 U.S.C. 455. 

FN5  R.S. 757, 28 U.S.C. 457; R.S. 758, 28 U.S.C. 458. 

FN6  R.S. 759, 28 U.S.C. 459. 

FN7 R.S. 760, 28 U.S.C. 460. 

FN8  R.S. 761, 28 U.S.C. 461. 

FN9  EX PARTE YARBROUGH, 110 U.S. 651, 653; MOONEY V. HOLOHAN, 294
U.S. 103, 111. 

FN10  MURDOCK V. POLLOCK, 229 F. 392. 

FN11  HARPIN V. JOHNSTON, 109 F.2D 434; FRANZEEN V. JOHNSTON, 111
F.2D 817; WALKER V. CHITTY, 112 F.2D 79; ZAHN V. HUDSPETH, 102 F.2D
759; NIVENS V. HUDSPETH, 105 F.2D 756; MCCOY V. HUDSPETH, 106 F.2D 810;
MCDONALD V. HUDSPETH, 108 F.2D 943; MOORE V. HUDSPETH, 110 F.2D 386;
TAYLOR V. HUDSPETH, 113 F.2D 825. 

FN12  CUNDIFF V. NICHOLSON, 107 F.2D 162; HURT V. ZERBST, 97 F.2D 519;
BROWN V. ZERBST, 99 F.2D 745; MOTHERSHEAD V. KING, 112 F.2D 1004;
SANDERS V. ALLEN, 69 APP. D.C. 307; 100 F.2D 717; CLAWANS V. RIVES, 70
APP. D.C. 107; 104 F.2D 240; UNITED STATES V. HIATT, 33 F.SUPP.  545. 

FN13  JOHNSON V. ZERBST, 304 U.S. 458. 

FN14  MOONEY V. HOLOHAN, 294 U.S. 103. 
..END :
















DRIVERS UNION V. MEADOWMOOR CO., 312 U.S. 287 


NO. 1.  ARGUED DECEMBER 13, 16, 1940.  - DECIDED FEBRUARY 10, 1941.  -
371 ILL. 377 - 21 N.E.2D 308, AFFIRMED. 


1.  A STATE IS AT LIBERTY UNDER THE FOURTEENTH AMENDMENT TO USE
INJUNCTIVE POWERS VESTED IN ITS COURTS FOR THE PREVENTION OF VIOLENCE
BY LABOR UNIONS IN INDUSTRIAL DISPUTES.  P. 292. 

2.  AND WHERE THE CONTROVERSY IS ATTENDED BY PEACEFUL PICKETING AND BY
ACTS OF VIOLENCE, AND THE VIOLENCE HAS BEEN SUCH THAT CONTINUATION OF
THE PICKETING WILL OPERATE COERCIVELY BY EXCITING FEAR THAT VIOLENCE
WILL BE RESUMED, AN INJUNCTION BY A STATE COURT FORBIDDING THE
PICKETING AS WELL AS THE VIOLENCE DOES NOT INFRINGE THE FOURTEENTH
AMENDMENT.  P. 294. 

3.  THE MASTER IN THE STATE COURT FOUND "INTIMIDATION OF THE
CUSTOMERS  ... BY THE COMMISSION OF THE ACTS OF VIOLENCE," AND THE
SUPREME COURT OF THE STATE JUSTIFIED ITS INJUNCTION AGAINST PICKETING
BECAUSE PICKETING, "IN CONNECTION WITH OR FOLLOWING A SERIES OF
ASSAULTS OR DESTRUCTION OF PROPERTY, COULD NOT HELP BUT HAVE THE EFFECT
OF INTIMIDATING THE PERSONS IN FRONT OF WHOSE PREMISES SUCH PICKETING
OCCURRED AND OF CAUSING THEM TO BELIEVE THAT NON-COMPLIANCE WOULD
POSSIBLY BE FOLLOWED BY ACTS OF AN UNLAWFUL CHARACTER."  HELD THAT IT
IS NOT FOR THIS COURT TO MAKE AN INDEPENDENT VALUATION OF THE TESTIMONY
BEFORE THE MASTER OR TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE STATE
COURT RESOLVING CONFLICTS IN THE TESTIMONY OR ITS INTERPRETATION.  P.
294. 

4.  IN DETERMINING WHETHER ACTS OF VIOLENCE ACCOMPANYING AN
INDUSTRIAL CONTROVERSY WERE ATTRIBUTABLE TO A LABOR UNION RATHER THAN
TO IRRESPONSIBLE OUTSIDERS, A STATE COURT IS NOT CONFINED TO THE
TECHNICALITIES OF THE LAWS OF AGENCY.  P. 295. 

5.  THE PRESENT DECISION DOES NOT BAR RESORT TO THE STATE COURT FOR A
MODIFICATION OF THE TERMS OF THE INJUNCTION SHOULD THAT COURT FIND THAT
THE PASSAGE OF TIME HAS DEPRIVED THE PICKETING OF ITS COERCIVE
INFLUENCE.  P. 298. 

6.  THORNHILL V. ALABAMA, 310 U.S. 88, AND CARLSON V. CALIFORNIA, 310
U.S. 106, DISTINGUISHED.  P. 297. 

MILK WAGON DRIVERS UNION OF CHICAGO, LOCAL 753, ET AL. V. MEADOWMOOR
DAIRIES, INC. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

CERTIORARI, 310 U.S. 655, TO REVIEW A DECREE DIRECTING A PERMANENT
INJUNCTION AGAINST ACTS OF VIOLENCE AND PICKETING BY A LABOR UNION. 

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PROTECTS ALL
PERSONS AGAINST ACTION BY A STATE JUDICIARY THAT TENDS TO DEPRIVE THEM
OF THEIR CONSTITUTIONAL RIGHT TO FREE SPEECH.  BRINKERHOF TRUST CO. V.
HALL, 281 U.S. 673; EX PARTE VIRGINIA, 100 U.S. 339, 347; GELPCKE V.
DUBUQUE, 1 WALL.  175, 207; MUHLKER V. NEW YORK & HARLEM RAILROAD CO.,
197 U.S. 544, 570; HOVEY V. ELLIOTT, 167 U.S. 409, 419, 444; MURRARY V.
HOBOKEN LAND, 18 HOW.  272, 276; POWELL V. ALABAMA, 287 U.S. 45. 

SOME STATE COURTS HAVE SQUARELY DECIDED THAT AN INJUNCTION TO
RESTRAIN PEACEFUL PICKETING, I.E., CARRYING OF BANNERS IN AN INDUSTRIAL
CONTROVERSY, VIOLATES THE CONSTITUTIONAL GUARANTIES.  VULCAN DETINNING
CO. V. ST. CLAIR, 315 ILL. 40, 46-47; ILLINOIS MALLEABLE IRON CO. V.
MICHALEK, 279 ILL. 221; SCHUSTER V. INTERNATIONAL ASSN. OF MACHINISTS,
293 ILL. APP. 177, 193; LIETZMAN V. BROADCASTING STATION WCFL, 282 ILL.
APP. 203, 214, 218; CF. BEATON V. TARRANT, 102 ILL. APP. 124, 129. 
SEE, ALSO, BECKNER, LABOR LEGISLATION IN ILLINOIS, P. 51(1929); EX
PARTE LYONS, 27 CAL. APP. 70. 

OTHER CASES HOLDING THAT THE CONSTITUTIONAL GUARANTIES OF FREEDOM OF
SPEECH PRECLUDE A STATE COURT FROM ENJOINING "PUBLICATION" OR
"UTTERANCES" BY PICKETING IN CONNECTION WITH AN INDUSTRIAL CONTROVERSY
INVOLVING A STRIKE OR A BOYCOTT, ARE:  MARX & H. CLOTHING CO. V.
WATSON, 168 MO. 113; EX PARTE TUCKER, 110 TEX. 335; TRUAX V. BISBEE
LOCAL, 19 ARIZ. 379; RE HEFFRON, 79 MO. APP. 639; LINDSAY & CO. V.
MONTANA FED. LABOR, 37 MONT. 264; RICHTER BROS. V. JOURNEYMEN TAILORS'
UNION, 24 OHIO L.J. 189; RIGGS V. CINCINNATI WAITERS' ALLIANCE, 5 OHIO
N.P. 386; 8 OHIO S. & C.P. SEC. 565. 

STATE COURTS HAVE HELD ORDINANCES OR STATUTES PROHIBITING PEACEFUL
PICKETING, IN TERMS LIKE THE PROHIBITIONS OF THE INJUNCTION IN THE CASE
AT BAR, INVALID AS VIOLATIVE OF FREE SPEECH.  PEOPLE V. HARRIS, 104
COLO. 386; RENO V. SECOND JUDICIAL DIST., 95 P.2D 998; DENVER TRUCK
LINES V. PERRY, 101 P.2D 436, 444.  CF., JULIE BAKING CO. V. GRAYMARD,
152 MISC. 946; 247 N.Y.S. 250, 251-252; ROSSMAR V. UNITED KOSHER
BUTCHERS, 163 MISC. 331; 298 N.Y.S. 343-344; BERNSTEIN V. RETAIL
CLEANERS, 31 OHIO N.P. 433, 436; INDIVIDUAL STORE OWNERS V.
PENNSYLVANIA TREATY STORES, 33 PA. D. & C. 100, 101. 

THE DECISIONS OF THIS COURT INTERPRETING AND APPLYING THE
CONSTITUTIONAL GUARANTIES OF FREE SPEECH PRECLUDE A STATE COURT FROM
ENJOINING LABOR UNION MEMBERS AND WORKMEN FROM CARRYING ON THE PUBLIC
STREETS BANNERS OR PLACARDS CONVEYING TO THE PUBLIC INFORMATION
CONCERNING AN INDUSTRIAL CONTROVERSY IN WHICH THEY HAVE A SUBSTANTIAL
ECONOMIC INTEREST.  AMERICAN STEEL FOUNDRIES V. TRI-CITY COUNCIL, 257
U.S. 184; SENN V. TILE LAYERS UNION, 301 U.S. 468; LOVELL V. GRIFFIN,
303 U.S. 444; HAGUE V. C.I.O., 307 U.S. 496; SCHNEIDER V. STATE, 307
U.S. 147; THORNHILL V. ALABAMA, 310 U.S. 88; CARLSON V. CALIFORNIA, 310
U.S. 106. 

SEE GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; NEAR V. MINNESOTA,
283 U.S. 697, 716. 

THE STATE COURT'S ATTEMPTED JUSTIFICATION OF THE ABRIDGMENT OF THE
RIGHT OF UNION MEMBERS TO SPEAK FREELY AND DISSEMINATE INFORMATION
CONCERNING THE CONTROVERSY BETWEEN THE PLAINTIFF AND THE UNION IS
INCONSISTENT WITH THE THORNHILL CASE.  CF., SCHENCK V. UNITED STATES,
249 U.S. 47; UNITED STATES V. CAROLENE PRODUCTS, 304 U.S. 144, 152;
SCHNEIDER V. STATE, 308 U.S. 147, 161. 

THE CONSTITUTIONAL RIGHT TO FREE SPEECH MAY NOT BE ABRIDGED BY THE
STATE COURT ON THE GROUND THAT THE CARRYING OF THE BANNER HAS BEEN
PRECEDED BY ACTS OF VIOLENCE.  AMERICAN STEEL FOUNDRIES V. TRI-CITY
COUNCIL, 257 U.S. 184; IRON MOLDERS UNION V. ALLIS CHALMERS CO., 166 F.
45; FENSKE BROTHERS V. UPHOLSTERERS UNION, 358 ILL. 239; PEOPLE V.
YOUNG, 188 ILL. APP. 208, 212, 213; HENRICI CO. V. ALEXANDER, 198 ILL.
APP. 568; WISE SHOE CO. V. LOWENTHAL, 266 N.Y. 264; WARNER V. LILLY
CO., 265 U.S. 526, 532; BORDERLAND COAL CO. V. GASWAY, 278 F. 56;
BAILLIS V. FUCHS, 283 N.Y. 133; MAY'S FURS V. BAUER, 282 N.Y. 331. 

PETITIONERS' CONSTITUTIONAL RIGHT TO FREE SPEECH CAN NOT BE LOST
THROUGH "UNLAWFUL ACTS OF VIOLENCE" BY IRRESPONSIBLE AND UNAUTHORIZED
THIRD PERSONS.  JOHNSON V. ZERBST, 304 U.S. 458, 464. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE SUPREME COURT OF ILLINOIS SUSTAINED AN INJUNCTION AGAINST THE
MILK WAGON DRIVERS UNION OVER THE LATTER'S CLAIM THAT IT INVOLVED AN
INFRINGEMENT OF THE FREEDOM OF SPEECH GUARANTEED BY THE FOURTEENTH
AMENDMENT.  SINCE THIS RULING RAISED A QUESTION INTRINSICALLY
IMPORTANT, AS WELL AS AFFECTING THE SCOPE OF THORNHILL V. ALABAMA, 310
U.S. 88, AND CARLSON V. CALIFORNIA, 310 U.S. 106, WE BROUGHT THE CASE
HERE.  310 U.S. 655. 

THE "VENDOR SYSTEM" FOR DISTRIBUTING MILK IN CHICAGO GAVE RISE TO THE
DISPUTE.  UNDER THAT SYSTEM, WHICH WAS FULLY ANALYZED IN MILK WAGON
DRIVERS' UNION V. LAKE VALLEY FARM PRODUCTS, 311 U.S. 91, MILK IS SOLD
BY THE DAIRY COMPANIES TO VENDORS OPERATING THEIR OWN TRUCKS WHO RESELL
TO RETAILERS.  THESE VENDORS DEPARTED FROM THE WORKING STANDARDS
THERETOFORE ACHIEVED BY THE UNION FOR ITS MEMBERS AS DAIRY EMPLOYEES. 
THE UNION, IN ORDER TO COMPEL OBSERVANCE OF THE ESTABLISHED STANDARDS,
TOOK ACTION AGAINST DAIRIES USING THE VENDOR SYSTEM.  THE PRESENT
RESPONDENT, MEADOWMOOR DAIRIES, INC., BROUGHT SUIT AGAINST THE UNION
AND ITS OFFICIALS TO STOP INTERFERENCE WITH THE DISTRIBUTION OF ITS
PRODUCTS.  A PRELIMINARY INJUNCTION RESTRAINING ALL UNION CONDUCT,
VIOLENT AND PEACEFUL, PROMPTLY ISSUED, AND THE CASE WAS REFERRED TO A
MASTER FOR REPORT.  BESIDES PEACEFUL PICKETING OF THE STORES HANDLING
MEADOWMOOR'S PRODUCTS, THE MASTER FOUND THAT THERE HAD BEEN VIOLENCE ON
A CONSIDERABLE SCALE.  WITNESSES TESTIFIED TO MORE THAN FIFTY INSTANCES
OF WINDOW-SMASHING; EXPLOSIVE BOMBS CAUSED SUBSTANTIAL INJURY TO THE
PLANTS OF MEADOWMOOR AND ANOTHER DAIRY USING THE VENDOR SYSTEM AND TO
FIVE STORES; STENCH BOMBS WERE DROPPED IN FIVE STORES; THREE TRUCKS OF
VENDORS WERE WRECKED, SERIOUSLY INJURING ONE DRIVER, AND ANOTHER WAS
DRIVEN INTO A RIVER; A STORE WAS SET ON FIRE AND IN LARGE MEASURE
RUINED; TWO TRUCKS OF VENDORS WERE BURNED; A STOREKEEPER AND A TRUCK
DRIVER WERE SEVERELY BEATEN; WORKERS AT A DAIRY WHICH, LIKE MEADOWMOOR,
USED THE VENDOR SYSTEM WERE HELD WITH GUNS AND SEVERELY BEATEN ABOUT
THE HEAD WHILE BEING TOLD "TO JOIN THE UNION"; CARLOADS OF MEN FOLLOWED
VENDORS' TRUCKS, THREATENED THE DRIVERS, AND IN ONE INSTANCE SHOT AT
THE TRUCK AND DRIVER.  IN MORE THAN A DOZEN OF THESE OCCURRENCES,
INVOLVING WINDOW-SMASHING, BOMBINGS, BURNINGS, THE WRECKING OF TRUCKS,
SHOOTINGS, AND BEATINGS, THERE WAS TESTIMONY TO IDENTIFY THE WRONGDOERS
AS UNION MEN.  FN1  IN THE LIGHT OF HIS FINDINGS, THE MASTER
RECOMMENDED THAT ALL PICKETING, AND NOT MERELY VIOLENT ACTS, SHOULD BE
ENJOINED.  THE TRIAL COURT, HOWEVER, ACCEPTED THE RECOMMENDATIONS ONLY
AS TO ACTS OF VIOLENCE AND PERMITTED PEACEFUL PICKETING.  THE REVERSAL
OF THIS RULING BY THE SUPREME COURT, 371 ILL. 377; 21 N.E.2D 308,
DIRECTING A PERMANENT INJUNCTION AS RECOMMENDED BY THE MASTER, IS NOW
BEFORE US. 

THE QUESTION WHICH THUS EMERGES IS WHETHER A STATE CAN CHOOSE TO
AUTHORIZE ITS COURTS TO ENJOIN ACTS OF PICKETING IN THEMSELVES PEACEFUL
WHEN THEY ARE ENMESHED WITH CONTEMPORANEOUSLY VIOLENT CONDUCT WHICH IS
CONCEDEDLY OUTLAWED.  THE CONSTITUTION IS INVOKED TO DENY ILLINOIS THE
POWER TO AUTHORIZE ITS COURTS TO PREVENT THE CONTINUANCE AND RECURRENCE
OF FLAGRANT VIOLENCE, FOUND AFTER AN EXTENDED LITIGATION TO HAVE
OCCURRED UNDER SPECIFIC CIRCUMSTANCES, BY THE TERMS OF A DECREE
FAMILIAR IN SUCH CASES.  SUCH A DECREE, ARISING OUT OF A PARTICULAR
CONTROVERSY AND ADJUSTED TO IT, RAISES TOTALLY DIFFERENT CONSTITUTIONAL
PROBLEMS FROM THOSE THAT WOULD BE PRESENTED BY AN ABSTRACT STATUTE WITH
AN OVERHANGING AND UNDEFINED THREAT TO FREE UTTERANCE.  TO ASSIMILATE
THE TWO IS TO DENY TO THE STATES THEIR HISTORIC FREEDOM TO DEAL WITH
CONTROVERSIES THROUGH THE CONCRETENESS OF INDIVIDUAL LITIGATION RATHER
THAN THROUGH THE ABSTRACTIONS OF A GENERAL LAW. 

THE STARTING POINT IS THORNHILL'S CASE.  THAT CASE INVOKED THE
CONSTITUTIONAL PROTECTION OF FREE SPEECH ON BEHALF OF A RELATIVELY
MODERN MEANS FOR "PUBLICIZING, WITHOUT ANNOYANCE OR THREAT OF ANY KIND,
THE FACTS OF A LABOR DISPUTE."  310 U.S. 100.  THE WHOLE SERIES OF
CASES DEFINING THE SCOPE OF FREE SPEECH UNDER THE FOURTEENTH AMENDMENT
ARE FACETS OF THE SAME PRINCIPLE IN THAT THEY ALL SAFEGUARD MODES
APPROPRIATE FOR ASSURING THE RIGHT TO UTTERANCE IN DIFFERENT
SITUATIONS.  PEACEFUL PICKETING IS THE WORKINGMAN'S MEANS OF
COMMUNICATION. 

IT MUST NEVER BE FORGOTTEN, HOWEVER, THAT THE BILL OF RIGHTS WAS THE
CHILD OF THE ENLIGHTENMENT.  BACK OF THE GUARANTEE OF FREE SPEECH LAY
FAITH IN THE POWER OF AN APPEAL TO REASON BY ALL THE PEACEFUL MEANS FOR
GAINING ACCESS TO THE MIND.  IT WAS IN ORDER TO AVERT FORCE AND
EXPLOSIONS DUE TO RESTRICTIONS UPON RATIONAL MODES OF COMMUNICATION
THAT THE GUARANTEE OF FREE SPEECH WAS GIVEN A GENEROUS SCOPE.  BUT
UTTERANCE IN A CONTEXT OF VIOLENCE CAN LOSE ITS SIGNIFICANCE AS AN
APPEAL TO REASON AND BECOME PART OF AN INSTRUMENT OF FORCE.  SUCH
UTTERANCE WAS NOT MEANT TO BE SHELTERED BY THE CONSTITUTION. 

STILL 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.  AND SO THE
RIGHT OF FREE SPEECH CANNOT BE DENIED BY DRAWING FROM A TRIVIAL ROUGH
INCIDENT OR A MOMENT OF ANIMAL EXUBERANCE THE CONCLUSION THAT OTHERWISE
PEACEFUL PICKETING HAS THE TAINT OF FORCE. 

IN THIS CASE THE MASTER FOUND "INTIMIDATION OF THE CUSTOMERS OF THE
PLAINTIFF'S VENDORS BY THE COMMISSION OF THE ACTS OF VIOLENCE," AND THE
SUPREME COURT JUSTIFIED ITS DECISION BECAUSE PICKETING, "IN CONNECTION
WITH OR FOLLOWING A SERIES OF ASSAULTS OR DESTRUCTION OF PROPERTY,
COULD NOT HELP BUT HAVE THE EFFECT OF INTIMIDATING THE PERSONS IN FRONT
OF WHOSE PREMISES SUCH PICKETING OCCURRED AND OF CAUSING THEM TO
BELIEVE THAT NON-COMPLIANCE WOULD POSSIBLY BE FOLLOWED BY ACTS OF AN
UNLAWFUL CHARACTER."  IT IS NOT FOR US TO MAKE AN INDEPENDENT VALUATION
OF THE TESTIMONY BEFORE THE MASTER.  WE HAVE NOT ONLY HIS 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.  THE PLACE TO RESOLVE CONFLICTS
IN THE TESTIMONY AND IN ITS INTERPRETATION WAS IN THE ILLINOIS COURTS
AND NOT HERE.  TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE STATE COURT
IS TO TRANSCEND THE LIMITS OF OUR AUTHORITY.  AND TO DO SO IN THE NAME
OF THE FOURTEENTH AMENDMENT IN A MATTER PECULIARLY TOUCHING THE LOCAL
POLICY OF A STATE REGARDING VIOLENCE TENDS TO DISCREDIT THE GREAT
IMMUNITIES OF THE BILL OF RIGHTS.  NO ONE WILL DOUBT THAT ILLINOIS CAN
PROTECT ITS STOREKEEPERS FROM BEING COERCED BY FEAR OF WINDOW-SMASHINGS
OR BURNINGS OR BOMBINGS.  AND ACTS WHICH IN ISOLATION ARE PEACEFUL MAY
BE PART OF A COERCIVE THRUST WHEN ENTANGLED WITH ACTS OF VIOLENCE.  THE
PICKETING IN THIS CASE WAS SET IN A BACKGROUND OF VIOLENCE.  IN SUCH A
SETTING IT COULD JUSTIFIABLY BE CONCLUDED THAT THE MOMENTUM OF FEAR
GENERATED BY PAST VIOLENCE WOULD SURVIVE EVEN THOUGH FUTURE PICKETING
MIGHT BE WHOLLY PEACEFUL.  SO THE SUPREME COURT OF ILLINOIS FOUND.  WE
CANNOT SAY THAT SUCH A FINDING SO CONTRADICTED EXPERIENCE AS TO WARRANT
OUR REJECTION.  NOR CAN WE SAY THAT IT WAS WRITTEN INTO THE FOURTEENTH
AMENDMENT THAT A STATE THROUGH ITS COURTS CANNOT BASE PROTECTION
AGAINST FUTURE COERCION ON AN INFERENCE OF THE CONTINUING THREAT OF
PAST MISCONDUCT.  CF. ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S.
436. 

THESE ACTS OF VIOLENCE ARE NEITHER EPISODIC NOR ISOLATED.  JUDGES
NEED NOT BE SO INNOCENT OF THE ACTUALITIES OF SUCH AN INDUSTRIAL
CONFLICT AS THIS RECORD DISCLOSES AS TO FIND IN THE CONSTITUTION A
DENIAL OF THE RIGHT OF ILLINOIS TO CONCLUDE THAT THE USE OF FORCE ON
SUCH A SCALE WAS NOT THE CONDUCT OF A FEW IRRESPONSIBLE OUTSIDERS.  THE
FOURTEENTH AMENDMENT STILL LEAVES THE STATE AMPLE DISCRETION IN DEALING
WITH MANIFESTATIONS OF FORCE IN THE SETTLEMENT OF INDUSTRIAL
CONFLICTS.  AND IN EXERCISING ITS POWER A STATE IS NOT TO BE TREATED AS
THOUGH THE TECHNICALITIES OF THE LAWS OF AGENCY WERE WRITTEN INTO THE
CONSTITUTION.  CERTAINLY A STATE IS NOT CONFINED BY THE CONSTITUTION TO
NARROWER LIMITS IN FASHIONING REMEDIES FOR DEALING WITH INDUSTRIAL
DISPUTES THAN THE SCOPE OF DISCRETION OPEN TO THE NATIONAL LABOR
RELATIONS BOARD.  IT IS TRUE OF A UNION AS OF AN EMPLOYER THAT IT MAY
BE RESPONSIBLE FOR ACTS WHICH IT HAS NOT EXPRESSLY AUTHORIZED OR WHICH
MIGHT NOT BE ATTRIBUTABLE TO IT ON STRICT APPLICATION OF THE RULES OF
RESPONDEAT SUPERIOR.  INTERNATIONAL ASSOCIATION OF MACHINISTS V. LABOR
BOARD, 311 U.S. 72, 80; HEINZ CO. V. LABOR BOARD, 311 U.S. 514.  TO
DENY TO A STATE THE RIGHT TO A JUDGMENT WHICH THE NATIONAL LABOR
RELATIONS BOARD HAS BEEN ALLOWED TO MAKE IN COGNATE SITUATIONS, WOULD
INDEED BE DISTORTING THE FOURTEENTH AMENDMENT WITH RESTRICTIONS UPON
STATE POWER WHICH IT IS NOT OUR BUSINESS TO IMPOSE.  A STATE MAY
WITHDRAW THE INJUNCTION FROM LABOR CONTROVERSIES BUT NO LESS CERTAINLY
THE FOURTEENTH AMENDMENT DOES NOT MAKE UNCONSTITUTIONAL THE USE OF THE
INJUNCTION AS A MEANS OF RESTRICTING VIOLENCE.  WE FIND NOTHING IN THE
FOURTEENTH AMENDMENT THAT PREVENTS A STATE IF IT SO CHOOSES FROM
PLACING CONFIDENCE IN A CHANCELLOR'S DECREE AND COMPELS IT TO RELY
EXCLUSIVELY ON A POLICEMAN'S CLUB.    WE HAVE ALREADY ADVERTED TO THE
GENEROUS SCOPE THAT MUST BE GIVEN TO THE GUARANTEE OF FREE SPEECH. 
ESPECIALLY IS THIS ATTITUDE TO BE OBSERVED WHERE, AS IN LABOR
CONTROVERSIES, THE FEELINGS OF EVEN THE MOST DETACHED MINDS MAY BECOME
ENGAGED AND A SHOW OF VIOLENCE MAY MAKE STILL FURTHER DEMANDS ON CALM
JUDGMENT.  IT IS THEREFORE RELEVANT TO REMIND THAT THE POWER TO DENY
WHAT OTHERWISE WOULD BE LAWFUL PICKETING DERIVES FROM THE POWER OF THE
STATES TO PREVENT FUTURE COERCION.  RIGHT TO FREE SPEECH IN THE FUTURE
CANNOT BE FORFEITED BECAUSE OF DISSOCIATED ACTS OF PAST VIOLENCE.  NOR
MAY A STATE ENJOIN PEACEFUL PICKETING MERELY BECAUSE IT MAY PROVOKE
VIOLENCE IN OTHERS.  NEAR V. MINNESOTA, 283 U.S. 697, 721-22; CANTWELL
V. CONNECTICUT, 310 U.S. 296.  INASMUCH AS THE INJUNCTION WAS BASED ON
FINDINGS MADE IN 1937, THIS DECISION IS NO BAR TO RESORT TO THE STATE
COURT FOR A MODIFICATION OF THE TERMS OF THE INJUNCTION SHOULD THAT
COURT FIND THAT THE PASSAGE OF TIME HAS DEPRIVED THE PICKETING OF ITS
COERCIVE INFLUENCE.  IN THE EXCEPTIONAL CASES WARRANTING RESTRAINT UPON
NORMALLY FREE CONDUCT, THE RESTRAINT OUGHT TO BE DEFINED BY CLEAR AND
GUARDED LANGUAGE.  ACCORDING TO THE BEST PRACTICE, A JUDGE HIMSELF
SHOULD DRAW THE SPECIFIC TERMS OF SUCH RESTRAINT AND NOT RELY ON DRAFTS
SUBMITTED BY THE PARTIES.  BUT WE DO NOT HAVE REVISORY POWER OVER STATE
PRACTICE, PROVIDED SUCH PRACTICE IS NOT USED TO EVADE CONSTITUTIONAL
GUARANTEES.  SEE FOX RIVER CO. V. RAILROAD COMM'N, 274 U.S. 651, 655;
LONG SAULT DEVELOPMENT CO. V. CALL, 242 U.S. 272, 277.  WE ARE HERE
CONCERNED WITH POWER AND NOT WITH THE WISDOM OF ITS EXERCISE.  WE
MERELY HOLD THAT IN THE CIRCUMSTANCES OF THE RECORD BEFORE US THE
INJUNCTION AUTHORIZED BY THE SUPREME COURT OF ILLINOIS DOES NOT
TRANSGRESS ITS CONSTITUTIONAL POWER.  THAT OTHER STATES HAVE CHOSEN A
DIFFERENT PATH IN SUCH A SITUATION INDICATES DIFFERENCES OF SOCIAL VIEW
IN A DOMAIN IN WHICH STATES ARE FREE TO SHAPE THEIR LOCAL POLICY. 
COMPARE BUSCH JEWELRY CO. V. UNITED RETAIL EMPLOYEES' UNION, 281 N.Y.
150; 22 N.E.2D 320, AND BAILLIS V. FUCHS, 283 N.Y. 133; 27 N.E.2D 812. 

TO MAINTAIN THE BALANCE OF OUR FEDERAL SYSTEM, INSOFAR AS IT IS
COMMITTED TO OUR CARE, DEMANDS AT ONCE ZEALOUS REGARD FOR THE
GUARANTEES OF THE BILL OF RIGHTS AND DUE RECOGNITION OF THE POWERS
BELONGING TO THE STATES.  SUCH AN ADJUSTMENT REQUIRES AUSTERE JUDGMENT,
AND A PRECISE SUMMARY OF THE RESULT MAY HELP TO AVOID MISCONSTRUCTION. 

(1)  WE DO NOT QUALIFY THE THORNHILL AND CARLSON DECISIONS.  WE
REAFFIRM THEM.  THEY INVOLVED STATUTES BALDLY FORBIDDING ALL PICKETING
NEAR AN EMPLOYER'S PLACE OF BUSINESS.  ENTANGLEMENT WITH VIOLENCE WAS
EXPRESSLY OUT OF THOSE CASES.  THE STATUTES HAD TO BE DEALT WITH ON
THEIR FACE, AND THEREFORE WE STRUCK THEM DOWN.  SUCH AN UNLIMITED BAN
ON FREE COMMUNICATION DECLARED AS THE LAW OF A STATE BY A STATE COURT
ENJOYS NO GREATER PROTECTION HERE.  CANTWELL V. CONNECTICUT, 310 U.S.
296; AMERICAN FEDERATION OF LABOR V. SWING, POST, P. 321.  BUT JUST AS
A STATE THROUGH ITS LEGISLATURE MAY DEAL WITH SPECIFIC CIRCUMSTANCES
MENACING THE PEACE BY AN APPROPRIATELY DRAWN ACT, THORNHILL V. ALABAMA,
SUPRA, SO THE LAW OF A STATE MAY BE FITTED TO A CONCRETE SITUATION
THROUGH THE AUTHORITY GIVEN BY THE STATE TO ITS COURTS.  THIS IS
PRECISELY THE KIND OF SITUATION WHICH THE THORNHILL OPINION EXCLUDED
FROM ITS SCOPE.  "WE ARE NOT NOW CONCERNED WITH PICKETING EN MASSE OR
OTHERWISE CONDUCTED WHICH MIGHT OCCASION SUCH IMMINENT AND AGGRAVATED
DANGER  ...  AS TO JUSTIFY A STATUTE NARROWLY DRAWN TO COVER THE
PRECISE SITUATION GIVING RISE TO THE DANGER."  310 U.S. 105.  FN2  WE
WOULD NOT STRIKE DOWN A STATUTE WHICH AUTHORIZED THE COURTS OF ILLINOIS
TO PROHIBIT PICKETING WHEN THEY SHOULD FIND THAT VIOLENCE HAD GIVEN TO
THE PICKETING A COERCIVE EFFECT WHEREBY IT WOULD OPERATE DESTRUCTIVELY
AS FORCE AND INTIMIDATION.  SUCH A SITUATION IS PRESENTED BY THIS
RECORD.  IT DISTORTS THE MEANING OF THINGS TO GENERALIZE THE TERMS OF
AN INJUNCTION DERIVED FROM AND DIRECTED TOWARDS VIOLENT MISCONDUCT AS
THOUGH IT WERE AN ABSTRACT PROHIBITION OF ALL PICKETING WHOLLY
UNRELATED TO THE VIOLENCE INVOLVED. 

(2)  THE EXERCISE OF THE STATE'S POWER WHICH WE ARE SUSTAINING IS THE
VERY ANTITHESIS OF A BAN ON ALL DISCUSSION IN CHICAGO OF A MATTER OF
PUBLIC IMPORTANCE.  OF COURSE WE WOULD NOT SUSTAIN SUCH A BAN.  THE
INJUNCTION IS CONFINED TO CONDUCT NEAR STORES DEALING IN RESPONDENT'S
MILK, AND IT DEALS WITH THIS NARROW AREA PRECISELY BECAUSE THE COERCIVE
CONDUCT AFFECTED IT.  AN INJUNCTION SO ADJUSTED TO A PARTICULAR
SITUATION IS IN ACCORD WITH THE SETTLED PRACTICE OF EQUITY, SANCTIONED
BY SUCH GUARDIANS OF CIVIL LIBERTY AS MR. JUSTICE CARDOZO.  COMPARE
NANN V. RAIMIST, 255 N.Y. 307; 174 N.E. 690.  SUCH AN INJUNCTION MUST
BE READ IN THE CONTEXT OF ITS CIRCUMSTANCES.  NOR OUGHT STATE ACTION BE
HELD UNCONSTITUTIONAL BY INTERPRETING THE LAW OF THE STATE AS THOUGH,
TO USE A PHRASE OF MR. JUSTICE HOLMES, ONE WERE FIRED WITH A ZEAL TO
PERVERT.  IF AN APPROPRIATE INJUNCTION WERE PUT TO ABNORMAL USES IN ITS
ENFORCEMENT, SO THAT ENCROACHMENTS WERE MADE ON FREE DISCUSSION OUTSIDE
THE LIMITS OF VIOLENCE, AS FOR INSTANCE DISCUSSION THROUGH NEWSPAPERS
OR ON THE RADIO, THE DOORS OF THIS COURT ARE ALWAYS OPEN. 

(3)  THE INJUNCTION WHICH WE SUSTAIN IS "PERMANENT" ONLY FOR THE
TEMPORARY PERIOD FOR WHICH IT MAY LAST.  IT IS JUSTIFIED ONLY BY THE
VIOLENCE THAT INDUCED IT AND ONLY SO LONG AS IT COUNTERACTS A
CONTINUING INTIMIDATION.  FAMILIAR EQUITY PROCEDURE ASSURES OPPORTUNITY
FOR MODIFYING OR VACATING AN INJUNCTION WHEN ITS CONTINUANCE IS NO
LONGER WARRANTED.  HERE AGAIN, THE STATE COURTS HAVE NOT THE LAST SAY. 
THEY MUST ACT IN SUBORDINATION TO THE DUTY OF THIS COURT TO ENFORCE
CONSTITUTIONAL LIBERTIES EVEN WHEN DENIED THROUGH SPURIOUS FINDINGS OF
FACT IN A STATE COURT.  COMPARE CHAMBERS V. FLORIDA, 309 U.S. 227. 
SINCE THE UNION DID NOT URGE THAT THE COERCIVE EFFECT HAD DISAPPEARED
EITHER BEFORE US OR, APPARENTLY, BEFORE THE STATE COURT, THAT QUESTION
IS NOT NOW HERE. 

(4)  A FINAL WORD.  FREEDOM OF SPEECH AND FREEDOM OF THE PRESS CANNOT
BE TOO OFTEN INVOKED AS BASIC TO OUR SCHEME OF SOCIETY.  BUT THESE
LIBERTIES WILL NOT BE ADVANCED OR EVEN MAINTAINED BY DENYING TO THE
STATES WITH ALL THEIR RESOURCES, INCLUDING THE INSTRUMENTALITY OF THEIR
COURTS, THE POWER TO DEAL WITH COERCION DUE TO EXTENSIVE VIOLENCE.  IF
THE PEOPLE OF ILLINOIS DESIRE TO WITHDRAW THE USE OF THE INJUNCTION IN
LABOR CONTROVERSIES, THE DEMOCRATIC PROCESS FOR LEGISLATIVE REFORM IS
AT THEIR DISPOSAL.  ON THE OTHER HAND, IF THEY CHOOSE TO LEAVE THEIR
COURTS WITH THE POWER WHICH THEY HAVE HISTORICALLY EXERCISED, WITHIN
THE CIRCUMSCRIBED LIMITS WHICH THIS OPINION DEFINES, AND WE DENY THEM
THAT INSTRUMENT OF GOVERNMENT, THAT POWER HAS BEEN TAKEN FROM THEM
PERMANENTLY.  JUST BECAUSE THESE INDUSTRIAL CONFLICTS RAISE ANXIOUS
DIFFICULTIES, IT IS MOST IMPORTANT FOR US NOT TO INTRUDE INTO THE REALM
OF POLICY-MAKING BY READING OUR OWN NOTIONS INTO THE CONSTITUTION. 
AFFIRMED. 

FN1  IT WOULD NEEDLESSLY ENCUMBER THE REPORTS TO QUOTE IN DETAIL THE
EVIDENCE THUS SUMMARIZED.  THE CURIOUS MAY TURN TO THE RECORD IN THE
CASE. 

FN2  SEE ALSO THIS STATEMENT IN THE CARLSON OPINION:  "THE POWER AND
DUTY OF THE STATE TO TAKE ADEQUATE STEPS TO PRESERVE THE PEACE AND
PROTECT THE PRIVACY, THE LIVES, AND THE PROPERTY OF ITS RESIDENTS
CANNOT BE DOUBTED."  310 U.S. 113. 

MR. JUSTICE BLACK, DISSENTING. 

IN MY BELIEF THE OPINION JUST ANNOUNCED GIVES APPROVAL TO AN
INJUNCTION WHICH SERIOUSLY INFRINGES UPON THE CONSTITUTIONAL RIGHTS OF
FREEDOM OF SPEECH AND THE PRESS.  TO SUCH A RESULT I CANNOT AGREE. 

BEFORE DETAILING THE REASONS FOR MY DISAGREEMENT, SOME PRELIMINARY
OBSERVATIONS WILL DOUBTLESS AID IN CLARIFYING THE SUBSIDIARY ISSUES. 
THE RIGHT OF THE ILLINOIS COURTS TO ENJOIN VIOLENCE IS NOT DENIED IN
THIS CASE.  AND I AGREE THAT NOTHING IN THE FEDERAL CONSTITUTION
DEPRIVES THEM OF THAT RIGHT.  BUT IT IS CLAIMED THAT ILLINOIS - THROUGH
ITS COURTS - HAS HERE SANCTIONED AN INJUNCTION SO SWEEPING IN ITS TERMS
AS TO DENY TO PETITIONERS AND OTHERS THEIR CONSTITUTIONAL RIGHTS FREELY
TO EXPRESS THEIR VIEWS ON MATTERS OF PUBLIC CONCERN.  AND THIS IS THE
SINGLE FEDERAL QUESTION WE MUST DECIDE.  IN THEIR BRIEF, PETITIONERS
STATE THAT THEY "HAVE NEVER AND DO NOT AT THE PRESENT TIME IN ANY WAY
CONDONE OR JUSTIFY ANY VIOLENCE BY ANY MEMBER OF THE DEFENDANT UNION. 
PETITIONERS DID NOT OBJECT TO THE ISSUANCE OF AN INJUNCTION RESTRAINING
ACTS OF VIOLENCE.  THERE IS NO CONTENTION MADE THAT THE ACT OF THE
CHANCELLOR IN GRANTING SUCH AN INJUNCTION WAS ERRONEOUS."  FN1
"ETHICALLY, MORALLY AND LEGALLY," THE PETITIONING UNION DISCLAIMS AND
CONDEMNS THE ACTS OF VIOLENCE.  AND THE MASTER WHO CONDUCTED THE
HEARINGS IN THE CASE SPECIFICALLY FOUND THAT THE UNION OFFICIALS HAD
INSTRUCTED THEIR PICKETS TO REFRAIN FROM VIOLENCE.  FN2  THE RECORD
SHOWS THAT THE OFFICIALS GAVE THESE INSTRUCTIONS (WHICH WERE OBEYED),
NOT ONLY BECAUSE THEY REALIZED THAT RESORT TO FORCE AND VIOLENCE WOULD
BE REPREHENSIBLE AND INDEFENSIBLE, BUT ALSO BECAUSE THEY RECOGNIZED
THAT SUCH LAWLESS CONDUCT INJURES A LABOR UNION FAR MORE THAN IT HELPS
IT.  ASIDE FROM THIS, IT CANNOT BE DOUBTED THAT ATTEMPTS TO PERSUADE
OTHERS BY THE APPLICATION OF PHYSICAL FORCE AND VIOLENCE AS A
SUBSTITUTE FOR PERSUASION BY REASON AND PEACEABLE ARGUMENT IS CONTRARY
TO THE FIRST PRINCIPLES OF OUR GOVERNMENT.  NOR CAN IT BE QUESTIONED
THAT IT IS A PRIME FUNCTION OF COURTS TO PROVIDE LAW ENFORCEMENT MEANS
INTENDED BOTH TO PUNISH SUCH ILLEGAL CONDUCT AND TO PROTECT AGAINST IT.
BUT THIS GREAT RESPONSIBILITY IS ENTRUSTED TO COURTS NOT MERELY TO
DETERMINE THE GUILT OR INNOCENCE OF DEFENDANTS, BUT TO DO SO IN SUCH
MANNER THAT THOSE BROUGHT BEFORE THEM MAY ENJOY A TRIAL IN WHICH ALL
THEIR CONSTITUTIONAL RIGHTS ARE SAFEGUARDED - INCLUDING THE
CONSTITUTIONAL GUARANTIES OF FREEDOM OF SPEECH AND THE PRESS. 

IN DETERMINING WHETHER THE INJUNCTION DOES DEPRIVE PETITIONERS OF
THEIR CONSTITUTIONAL LIBERTIES, WE CANNOT AND SHOULD NOT LOSE SIGHT OF
THE NATURE AND IMPORTANCE OF THE PARTICULAR LIBERTIES THAT ARE AT
STAKE.  AND IN REACHING MY CONCLUSION I VIEW THE GUARANTIES OF THE
FIRST AMENDMENT  FN3  AS THE FOUNDATION UPON WHICH OUR GOVERNMENTAL
STRUCTURE RESTS AND WITHOUT WHICH IT COULD NOT CONTINUE TO ENDURE AS
CONCEIVED AND PLANNED.  FN4  FREEDOM TO SPEAK AND WRITE ABOUT PUBLIC
QUESTIONS IS AS IMPORTANT TO THE LIFE OF OUR GOVERNMENT AS IS THE HEART
TO THE HUMAN BODY.  IN FACT, THIS PRIVILEGE IS THE HEART OF OUR
GOVERNMENT.  IF THAT HEART BE WEAKENED, THE RESULT IS DEBILITATION; IF
IT BE STILLED, THE RESULT IS DEATH. 

IN ADDITION, I DEEM IT ESSENTIAL TO OUR FEDERAL SYSTEM THAT THE
STATES SHOULD BE LEFT WHOLLY FREE TO GOVERN WITHIN THE AMBIT OF THEIR
POWERS.  THEIR DELIBERATE GOVERNMENTAL ACTIONS SHOULD NOT LIGHTLY BE
DECLARED BEYOND THEIR POWERS.  FOR US TO SHEAR THEM OF POWER NOT DENIED
TO THEM BY THE FEDERAL CONSTITUTION WOULD AMOUNT TO JUDICIAL
USURPATION.  BUT THIS COURT HAS LONG SINCE - AND I THINK PROPERLY -
COMMITTED ITSELF TO THE DOCTRINE THAT A STATE CANNOT, THROUGH ANY
AGENCY, EITHER WHOLLY REMOVE, OR PARTIALLY WHITTLE AWAY, THE VITAL
INDIVIDUAL FREEDOMS GUARANTEED BY THE FIRST AMENDMENT.  AND IN SOLEMNLY
ADJUDICATING THE VALIDITY OF STATE ACTION TOUCHING THESE CHERISHED
PRIVILEGES WE CANNOT LOOK MERELY AT THE SURFACE OF THINGS, FOR WERE WE
TO DO SO THESE CONSTITUTIONAL GUARANTIES WOULD BECOME BARREN AND
STERILE.  WE MUST LOOK BENEATH THE SURFACE, AND MUST CAREFULLY EXAMINE
EACH STEP IN PROCEEDINGS WHICH LEAD A COURT TO ENJOIN PEACEFUL
DISCUSSION.  IN THIS CASE, IN ORDER TO DETERMINE WHETHER OR NOT THE
STATE HAS OVERSTEPPED CONSTITUTIONAL BOUNDARIES, I FIND IT NECESSARY TO
GIVE CONSIDERATION TO A NUMBER OF FACTORS, INCLUDING THE NATURE OF THE
PROCEEDINGS; THE DEFINITENESS, INDEFINITENESS AND CONSTITUTIONAL
VALIDITY OF THE BASIC LAW UPON WHICH THE INJUNCTION IS SAID TO REST;
THE FINDINGS AND THE EVIDENCE; THE DEFINITENESS, INDEFINITENESS AND
SCOPE OF THE LANGUAGE OF THE INJUNCTION ITSELF; AND THE ALLEGED
IMMINENCE OF THE THREATENED DANGERS SAID TO JUSTIFY THE ADMITTED
ABRIDGMENT OF FREE SPEECH.  MY CONCLUSION THAT THE INJUNCTION AS
DIRECTED BY THE SUPREME COURT OF ILLINOIS INVADES THE CONSTITUTIONAL
GUARANTIES OF FREEDOM OF SPEECH AND THE PRESS RESTS ON MY BELIEF THAT
THESE PROPOSITIONS ARE CORRECT:  (1) THE SUBJECTS BANNED FROM PUBLIC
DISCUSSION BY THE INJUNCTION ARE MATTERS OF PUBLIC CONCERN, TOUCHING
WHICH THE CONSTITUTION GUARANTEES THE RIGHT OF FREEDOM OF EXPRESSION;
(2) THE LAW OF ILLINOIS, AS DECLARED BY ITS SUPREME COURT, MAKES
ILLEGAL THE EXERCISE OF CONSTITUTIONALLY GUARANTEED PRIVILEGES, AND IS
AN INADEQUATE BASIS UPON WHICH TO DEFEND THIS ABRIDGMENT OF FREE
SPEECH; (3) THE RULE UPON WHICH THE INJUNCTION IS SUPPORTED HERE AND
WHICH THIS COURT NOW DECLARES TO BE THE ILLINOIS LAW IS NOT THE RULE
UPON WHICH THE ILLINOIS SUPREME COURT RELIED; (4) THE RULE ANNOUNCED
HERE AS SUPPORTING THE RIGHT OF A STATE TO ABRIDGE FREEDOM OF
EXPRESSION IS SO GENERAL AND SWEEPING IN ITS IMPLICATIONS THAT IT OPENS
UP BROAD POSSIBILITIES FOR INVASION OF THESE CONSTITUTIONAL RIGHTS; (5)
IN ANY EVENT, THE INJUNCTION HERE APPROVED IS TOO BROAD AND SWEEPING IN
ITS TERMS TO FIND JUSTIFICATION UNDER THE RULE ANNOUNCED BY THE
ILLINOIS COURT, AND EVEN THOUGH UNDER OTHER CIRCUMSTANCES SUCH AN
INJUNCTION WOULD BE PERMISSIBLE UNDER THE RULE NOW ANNOUNCED BY THIS
COURT, STILL IN THIS CASE SUCH AN INJUNCTION IS SUPPORTED NEITHER BY
THE FINDINGS NOR THE EVIDENCE.    FIRST.  WHAT PETITIONERS WERE
ENJOINED FROM DISCUSSING WERE MATTERS OF PUBLIC CONCERN "WITHIN THAT
AREA OF FREE DISCUSSION THAT IS GUARANTEED BY THE CONSTITUTION."  FN5
THE CONTROVERSY HERE WAS NOT A MERE PRIVATE QUARREL BETWEEN
INDIVIDUALS, INVOLVING THEIR INTERESTS ALONE.  THIS INJUNCTION DEALT
WITH TWO CONFLICTING METHODS OF MILK DISTRIBUTION - A MATTER OF
INTEREST NOT ONLY TO CHICAGO'S 148 DAIRIES, THEIR EMPLOYEES AND THEIR
HUNDREDS OF RETAIL OUTLETS, BUT TO THE MASS OF MILK CONSUMERS IN THE
CHICAGO AREA AS WELL.  THE OLDER METHOD OF DISTRIBUTION, BY WHICH
MEMBERS OF THE PETITIONING UNION ARE EMPLOYED, DISTRIBUTES A MAJOR PART
OF THE MILK SUPPLY BY DOOR-TO-DOOR DELIVERIES TO THE ULTIMATE
CONSUMER.  THE RIVAL METHOD OF DISTRIBUTION, IN WHICH RESPONDENT
ENGAGES, TAKES TWO FORMS:  THE DAIRIES USING THIS METHOD SELL THEIR
MILK TO "CUT-RATE" STORES, EITHER DIRECTLY OR THROUGH THE MEDIUM OF SO
CALLED "VENDORS."  THE CUT-RATE STORES SELL MILK AT A RETAIL PRICE TWO
CENTS A QUART LESS THAN THAT FIXED BY THE DAIRIES EMPLOYING UNION
LABOR.  ACCORDING TO THE COURT BELOW, THE SYSTEM OF CUT-RATE
DISTRIBUTION, RESULTING IN LOSS OF BUSINESS BY THE UNION DAIRIES, LOSS
OF EMPLOYMENT BY THE UNION DRIVERS, AND LOSS OF A THOUSAND MEMBERS BY
THE UNION ITSELF, IS AT THE ROOT OF A LONG-STANDING CONTROVERSY.  NOT
ONLY THIS:  THE SITUATION HERE IS AN INTIMATE PART OF THE LARGER
PROBLEM OF MILK PRODUCTION AND DISTRIBUTION THROUGHOUT THE COUNTRY,
AND, INDEED, OF THE STILL LARGER PROBLEM OF ALL SORTS OF CUT-RATE
DISTRIBUTION.  THERE ARE THUS INVOLVED TRADE PRACTICES WHICH ARE NOT
CONFINED TO CHICAGO ALONE - TRADE PRACTICES IN WHICH THERE IS KNOWN TO
BE A DISTINCT CLEAVAGE IN PUBLIC THOUGHT THROUGHOUT THE NATION. 

SECOND.  IN ESSENCE, THE ILLINOIS SUPREME COURT HELD THAT IT WAS
ILLEGAL FOR A LABOR UNION TO PUBLICIZE THE FACT OF ITS BELIEF THAT A
CUT-RATE BUSINESS SYSTEM WAS INJURIOUS TO THE UNION AND TO THE PUBLIC,
SINCE SUCH PUBLICITY NECESSARILY DISCOURAGED THAT SYSTEM'S PROSPECTIVE
PURCHASERS.  THIS CONCLUSION OF THE COURT WAS BASED ON THE FOLLOWING
REASONING:  THE FOURTEENTH AMENDMENT AND THE DUE PROCESS CLAUSE OF THE
ILLINOIS CONSTITUTION, CONSIDERED (IN SOME WAY NOT MADE CLEAR) IN
CONNECTION WITH THE UNWRITTEN "COMMON LAW," ASSURE RESPONDENT THE
UNQUALIFIED RIGHT TO DO BUSINESS FREE FROM ALL UNJUSTIFIABLE
INTERFERENCE; PUBLICATION AND PEACEFUL ARGUMENT INTENDED TO PERSUADE
RESPONDENT'S CUSTOMERS THAT ITS METHODS OF DOING BUSINESS WERE SUCH
THAT THEY SHOULD NOT BUY THE DAIRY'S PRODUCTS WERE THEREFORE ILLEGAL
INTERFERENCE; THE UNION'S PURPOSE TO BETTER WORKING CONDITIONS OF ITS
MEMBERS WAS NO JUSTIFICATION FOR ITS PEACEFUL DISCUSSION OF THE
CONTROVERSY.  NEITHER THE PRESENCE NOR THE ABSENCE OF VIOLENCE WAS
CONSIDERED BY THE COURT TO BE A NECESSARY ELEMENT IN ITS CONCLUSION. 
ALL THIS WAS BUT TO SAY THAT IN THIS CONTROVERSY PEACEFUL CRITICISM OF
THE "VENDOR SYSTEM" WAS ILLEGAL BECAUSE IT MIGHT INJURE RESPONDENT'S
BUSINESS BY DISCOURAGING TRADE.  BUT ILLINOIS CANNOT, WITHOUT
NULLIFYING CONSTITUTIONAL GUARANTIES, MAKE IT ILLEGAL TO MARSHAL PUBLIC
OPINION AGAINST THESE GENERAL BUSINESS PRACTICES.  AN AGREEMENT SO TO
MARSHAL PUBLIC OPINION IS PROTECTED BY THE CONSTITUTION, EVEN THOUGH
CALLED A "COMMON LAW" CONSPIRACY OR A "COMMON LAW" TORT.  DESPITE
INVIDIOUS NAMES, IT IS STILL NOTHING MORE THAN AN ATTEMPT TO PERSUADE
PEOPLE THAT THEY SHOULD LOOK WITH FAVOR UPON ONE SIDE OF A PUBLIC
CONTROVERSY. 

THIRD.  BUT THIS COURT SUSTAINS THE INJUNCTION ON THE GROUND THAT THE
ILLINOIS SUPREME COURT "JUSTIFIED ITS DECISION" BY REFERENCE TO
VIOLENCE, THEREBY INDICATING THAT THAT CHARACTERISTIC WAS MADE AN
ESSENTIAL ELEMENT OF THE RULE FROM WHICH THE INJUNCTION SPRANG.  I DO
NOT SO READ THAT COURT'S OPINION, AND APPARENTLY THE ILLINOIS SUPREME
COURT ITSELF DOES NOT SO READ IT.  THAT THIS IS TRUE IS EVIDENCED BY
THAT COURT'S LANGUAGE IN A LATER DECISION WHERE, SPEAKING OF THE
PRESENT CASE, IT SAID:  "IN THAT CASE THERE WAS SOME EVIDENCE OF
VIOLENCE, BUT  ...  THE ISSUE OF VIOLENCE WAS NOT THE TURNING POINT OF
THE DECISION."  FN6  AND EVEN IF VIOLENCE WERE UNINTENTIONALLY INCLUDED
OR INCIDENTALLY REFERRED TO IN THE COURSE OF FORMULATING A RULE
TOUCHING THE RIGHT OF FREE SPEECH, SUCH AN UNINTENTIONAL INCLUSION OR
INCIDENTAL REFERENCE IS TOO UNCERTAIN A SUPPORT UPON WHICH TO REST A
DEPRIVATION OF THIS VITAL PRIVILEGE. 

FOURTH.  THERE IS NO STATE STATUTE UPON WHICH EITHER THIS COURT OR
THE SUPREME COURT OF ILLINOIS COULD HAVE RELIED IN SUSTAINING THE
INJUNCTION.  FN7  ASSUMING THAT THE SUPREME COURT OF ILLINOIS DID
DECLARE THE RULE WHICH THIS COURT HAS ADOPTED, IN DOING SO IT HAS NOT
MARKED THE LIMITS OF THE RULE WITH THAT CLARITY WHICH SHOULD BE A
PREREQUISITE TO AN ABRIDGMENT OF FREE SPEECH.  NOR DO I BELIEVE THAT
THIS COURT, EVEN IF IT SHOULD, HAS SUPPLIED THAT ESSENTIAL
DEFINITENESS.  WHAT WE ARE HERE DEALING WITH IS AN INJUNCTION, AND NOT
A "STATUTE NARROWLY DRAWN" TO COVER A SITUATION THREATENING "IMMINENT
AND AGGRAVATED DANGER."  FN8  SPEAKING OF A SIMILAR ABRIDGMENT OF
CONSTITUTIONAL RIGHTS WHERE THERE WAS NO GUIDING LEGISLATIVE ACT, WE
SAID IN CANTWELL V. CONNECTICUT:  "VIOLATION OF AN ACT EXHIBITING SUCH
A LEGISLATIVE JUDGMENT AND NARROWLY DRAWN TO PREVENT THE SUPPOSED EVIL,
WOULD POSE A QUESTION DIFFERING FROM THAT WE MUST HERE ANSWER.  SUCH A
DECLARATION OF THE STATE'S POLICY WOULD WEIGH HEAVILY IN ANY CHALLENGE
OF THE LAW AS INFRINGING CONSTITUTIONAL LIMITATIONS.  HERE, HOWEVER,
THE JUDGMENT IS BASED ON A COMMON LAW CONCEPT OF THE MOST GENERAL AND
UNDEFINED NATURE.  ...  HERE WE HAVE A SITUATION ANALOGOUS TO A
CONVICTION UNDER A STATUTE SWEEPING IN A GREAT VARIETY OF CONDUCT UNDER
A GENERAL AND INDEFINITE CHARACTERIZATION, AND LEAVING TO THE EXECUTIVE
AND JUDICIAL BRANCHES TOO WIDE A DISCRETION IN ITS APPLICATION."  FN9
IN THE PRESENT CASE, THE PROHIBITION AGAINST THE DISSEMINATION OF
INFORMATION THROUGH PEACEFUL PICKETING WAS BUT ONE OF THE MANY
RESTRAINTS IMPOSED BY THE SWEEPING INJUNCTION.  AS TO THIS ONE SINGLE
ELEMENT OF THE PROHIBITIONS A NUMBER OF STATEMENTS APPEAR IN THE RULE
NOW FORMULATED.  ON THE ONE HAND IT IS SAID THAT "DISSOCIATED ACTS OF
PAST VIOLENCE" ARE NOT ENOUGH TO FORFEIT THE RIGHT OF FREE SPEECH.  ON
THE OTHER HAND A "BACKGROUND OF VIOLENCE" APPEARS TO BE SUFFICIENT. 
NOR ARE ANY MORE DEFINITE STANDARDS OR GUIDES TO BE FOUND IN SUCH
CLAUSES AS "CONTEXT OF VIOLENCE"; "ENTANGLEMENT WITH VIOLENCE";
"COERCIVE EFFECT"; "TAINT OF FORCE"; AND "COERCIVE THRUST."  IT IS MY
APPREHENSION THAT A RULE EMBODYING SUCH BROAD GENERALIZATIONS OPENS UP
NEW POSSIBILITIES FOR INVASION OF THE RIGHTS GUARANTEED BY THE FIRST
AMENDMENT. 

FIFTH.  IN MY OPINION THE SWEEPING INJUNCTION HERE APPROVED IS
JUSTIFIED BY NEITHER OF THE RULES, AND IS NOT SUPPORTED BY THE RECORD. 

FOR OUR PURPOSES, IN ORDER TO REACH A PROPER CONCLUSION AS TO JUST
WHAT IS THE SWEEP OF THE INJUNCTION, WE MUST NECESSARILY TURN TO THE
COMPLAINT, THE ANSWER, THE EVIDENCE, THE FINDINGS, AND THE DECISION AND
JUDGMENT OF THE ILLINOIS COURTS.  AND WHETHER THE INJUNCTION WILL
RESTRAIN THE EXERCISE OF CONSTITUTIONAL RIGHTS DEPENDS UPON THE EFFECT
IT WILL HAVE UPON THE MINDS OF THOSE WHOSE FREEDOM OF EXPRESSION MIGHT
BE ABRIDGED BY ITS MANDATE.  THIS EFFECT IN TURN DEPENDS UPON THE
LANGUAGE APPEARING UPON THE FACE OF THE INJUNCTION.  BY THAT LANGUAGE
WE MUST JUDGE IT.  FOR THIS INJUNCTION DOES NOT RUN MERELY AGAINST
LAWYERS WHO MIGHT GIVE IT A LEGALISTIC INTERPRETATION, BUT AGAINST
LAYMEN AS WELL.  OUR QUESTION THEN BECOMES:  TO WHAT EXTENT WILL THE
LAYMAN WHO MIGHT WISH TO WRITE ABOUT OR DISCUSS THE PROHIBITED SUBJECTS
FEEL THAT HE CANNOT DO SO WITHOUT SUBJECTING HIMSELF TO THE POSSIBILITY
OF A JAIL SENTENCE UNDER A SUMMARY PUNISHMENT FOR CONTEMPT?  THIS
INJUNCTION, LIKE A CRIMINAL STATUTE, PROHIBITS CONDUCT UNDER FEAR OF
PUNISHMENT.  THERE IS EVERY REASON WHY WE SHOULD LOOK AT THE INJUNCTION
AS WE WOULD A STATUTE, AND IF UPON ITS FACE IT ABRIDGES THE
CONSTITUTIONAL GUARANTIES OF FREEDOM OF EXPRESSION, IT SHOULD BE
STRICKEN DOWN.  THIS IS ESPECIALLY TRUE BECAUSE WE MUST DEAL ONLY WITH
THE FEDERAL QUESTION PRESENTED, WHICH IS WHETHER PETITIONERS HAVE BEEN
DENIED THEIR RIGHTS UNDER THE FIRST AMENDMENT.  THE INJUNCTION, LIKE A
STATUTE, STANDS AS AN OVERHANGING THREAT OF FUTURE PUNISHMENT.  THE LAW
OF ILLINOIS HAS BEEN DECLARED BY ITS HIGHEST COURT IN SUCH MANNER AS TO
INFRINGE UPON CONSTITUTIONAL GUARANTIES.  AND BY THIS INJUNCTION THAT
LAW AS ACTUALLY APPLIED ABRIDGES FREEDOM OF EXPRESSION.  LOOKING AT THE
INJUNCTION, WE FIND THAT UNDER PAIN OF FUTURE PUNISHMENT BY A TRIAL
JUDGE ALL OF THE MEMBERS OF THE PETITIONING UNION (ABOUT SIX THOUSAND)
ARE PROHIBITED "FROM INTERFERING, HINDERING OR OTHERWISE DISCOURAGING
OR DIVERTING, OR ATTEMPTING TO INTERFERE WITH, HINDER, DISCOURAGE OR
DIVERT PERSONS DESIROUS OF OR CONTEMPLATING PURCHASING MILK AND CREAM
OR OTHER PRODUCTS AFORESAID, INCLUDING THE USE OF SAID SIGNS, BANNERS
OR PLACARDS, AND WALKING UP AND DOWN IN FRONT OF SAID STORES AS
AFORESAID, AND FURTHER PREVENTING THE DELIVERIES TO SAID STORES OF
OTHER ARTICLES WHICH SAID STORES SELL THROUGH RETAIL; (OR) FROM
THREATENING IN ANY MANNER TO DO THE FOREGOING ACTS; ...  "  IT SURELY
CANNOT BE DOUBTED THAT AN ACT OF THE ILLINOIS LEGISLATURE, COUCHED IN
THIS SWEEPING LANGUAGE, WOULD BE HELD INVALID ON ITS FACE.  FN10  FOR
THIS LANGUAGE IS CAPABLE OF BEING CONSTRUED TO MEAN THAT NONE OF THOSE
ENJOINED CAN, WITHOUT SUBJECTING THEMSELVES TO SUMMARY PUNISHMENT,
SPEAK, WRITE OR PUBLISH ANYTHING ANYWHERE OR AT ANY TIME WHICH THE
ILLINOIS COURT - ACTING WITHOUT A JURY IN THE EXERCISE OF ITS BROAD
POWER TO PUNISH FOR CONTEMPT  FN11  - MIGHT CONCLUDE WOULD RESULT IN
DISCOURAGING PEOPLE FROM BUYING MILK PRODUCTS OF THE COMPLAINING
DAIRY.  AND MORE THAN THAT - IF THE LANGUAGE IS SO CONSTRUED, THOSE
ENJOINED CAN BE SENT TO JAIL IF THEY EVEN THREATEN TO WRITE, SPEAK, OR
PUBLISH IN SUCH WAY AS TO DISCOURAGE PROSPECTIVE MILK PURCHASERS.  I
FIND NOT EVEN SLIGHT JUSTIFICATION FOR AN INTERPRETATION OF THIS
INJUNCTION SO AS TO CONFINE ITS PROHIBITIONS TO CONDUCT NEAR STORES
DEALING IN RESPONDENT'S MILK.  NEITHER THE LANGUAGE OF THE INJUNCTION
NOR THAT OF THE COMPLAINT WHICH SOUGHT THE INJUNCTION INDICATES SUCH A
LIMITATION.  MR. JUSTICE CARDOZO APPROVED NO SUCH INJUNCTION AS THIS IN
NANN V. RAIMIST, 255 N.Y. 307; 174 N.E. 690.  IN FACT, HE ORDERED
EXPUNGED FROM THE INJUNCTION THOSE PROHIBITIONS WHICH IMPAIRED
"DEFENDANT'S INDUBITABLE RIGHT TO WIN CONVERTS OVER TO ITS FOLD BY
RECOURSE TO PEACEABLE PERSUASION, AND TO INDUCE THEM BY LIKE METHODS TO
RENOUNCE ALLEGIANCE TO ITS RIVAL." 

BUT THE INJUNCTION APPROVED HERE DOES NOT STOP AT CLOSING THE MOUTHS
OF THE MEMBERS OF THE PETITIONING UNION.  IT BRINGS WITHIN ITS ALL
EMBRACING SWEEP THE SPOKEN OR WRITTEN WORDS OF ANY OTHER PERSON "WHO
MAY  ...  NOW  ...  OR HEREAFTER  ...  AGREE OR ARRANGE WITH THEM  ...
"  SO, IF A NEWSPAPER SHOULD "AGREE OR ARRANGE" WITH ALL OR SOME OF
THOSE HERE ENJOINED TO PUBLISH THEIR SIDE OF THE CONTROVERSY, THEREBY
NECESSARILY TENDING TO "DISCOURAGE" THE SALE OF CUT-RATE MILK, THE
PUBLISHERS MIGHT LIKEWISE BE SUBJECT TO PUNISHMENT FOR CONTEMPT.  FN12
ORDINARILY THE SCOPE OF THE DECREE IS COEXTENSIVE EXTENSIVE WITH THE
ALLEGATIONS OF THE BILL, ITS SUPPORTING AFFIDAVITS OR FINDINGS OF
FACT.  IN OTHER WORDS, THE ACTS ENJOINED ARE THE ACTS ALLEGED IN THE
BILL AS THE BASIS FOR COMPLAINT.  FN13  AND THE COMPLAINT ON WHICH THE
INJUNCTION HERE RESTS SPECIFICALLY CHARGED THAT THE UNION HAD CAUSED
"ANNOUNCEMENT TO BE MADE BY THE PUBLIC PRESS OF THE CITY OF CHICAGO,
FOR THE PURPOSE OF INTIMIDATING THE SAID STOREKEEPERS AND CAUSING THEM
TO CEASE PURCHASING THE MILK SOLD BY SAID PLAINTIFFS THROUGH FEAR AND
TERROR OF THE RENEWAL OF SAID CONSPIRACY,  ...  "  SPECIFIC REFERENCE
WAS MADE TO THESE NEWSPAPER STORIES AS APPEARING IN THE CHICAGO TRIBUNE
AND THE CHICAGO EVENING AMERICAN.  PROOF WAS MADE OF THESE
PUBLICATIONS.  AND THE INJUNCTION OF THE TRIAL JUDGE, SET ASIDE BY THE
SUPREME COURT OF ILLINOIS, SPECIFICALLY SAVED TO PETITIONERS - AS IN
EFFECT DID JUSTICE CARDOZO IN THE NEW YORK CASE - THEIR RIGHT TO
PUBLICIZE THEIR CAUSE BY MEANS OF "ADVERTISEMENT OR COMMUNICATION." 
BUT THE INJUNCTION SUSTAINED HERE IS TO BE ISSUED AS PRAYED FOR IN THE
BILL OF COMPLAINT.  AND SINCE THE ACTS ENJOINED ARE THE ACTS ALLEGED IN
THE BILL AS THE BASIS FOR COMPLAINT, NEWSPAPER PUBLICATIONS OF THE TYPE
REFERRED TO IN THE COMPLAINT ARE LITERALLY ENJOINED.  SINCE THE LITERAL
LANGUAGE OF THE INJUNCTION, READ IN THE LIGHT OF THE COMPLAINT, THE
SUPPORTING EVIDENCE, AND THE LANGUAGE OF THE TRIAL JUDGE'S SAVING
CLAUSE - STRICKEN DOWN BY ACTION SUSTAINED HERE - THUS
UNCONSTITUTIONALLY ABRIDGES THE RIGHTS OF FREEDOM OF SPEECH AND PRESS,
WE CANNOT ESCAPE OUR RESPONSIBILITY BY THE SIMPLE EXPEDIENT OF
DECLARING THAT THOSE WHO MIGHT BE SENT TO JAIL FOR VIOLATING THE PLAIN
LANGUAGE OF THE INJUNCTION MIGHT EVENTUALLY OBTAIN RELIEF BY APPEAL TO
THIS COURT.  TO UPHOLD VAGUE AND UNDEFINED TERMINOLOGIES IN DRAGNET
CLAUSES DIRECTLY AND EXCLUSIVELY AIMED AT RESTRAINING FREEDOM OF
DISCUSSION UPON THE THEORY THAT WE MIGHT LATER ACQUIT THOSE CONVICTED
FOR VIOLATION OF SUCH TERMINOLOGY AMOUNTS IN MY JUDGMENT TO SANCTIONING
A PRIOR CENSORSHIP OF VIEWS.  NO MATTER HOW THE DECREE MIGHT EVENTUALLY
BE CONSTRUED, ITS LANGUAGE, VIEWED IN THE LIGHT OF THE WHOLE
PROCEEDINGS, STANDS LIKE AN ABSTRACT STATUTE WITH AN OVERHANGING AND
UNDEFINED THREAT TO FREEDOM OF SPEECH AND THE PRESS.  ALL THIS, OF
COURSE, IS TRUE ONLY AS TO THOSE WHO ARGUE ON THE SIDE OF THE OPPONENTS
OF CUT-RATE DISTRIBUTION.  NO SUCH UNDEFINED THREAT HANGS OVER THOSE
WHO "AGREE OR ARRANGE" WITH THE ADVOCATES OF THE CUT-RATE SYSTEM TO
ENCOURAGE THEIR METHOD OF DISTRIBUTION.    NOR IS IT ANY ANSWER TO SAY
THAT THE INJUNCTION WOULD NOT BE CARRIED OUT IN ALL ITS POTENTIAL
RIGOR.  IT WAS TO OBTAIN JUST THESE POTENTIALITIES THAT RESPONDENT,
ALREADY HAVING SECURED FROM THE TRIAL COURT AN INJUNCTION AGAINST ACTS
OF VIOLENCE, APPEALED TO THE ILLINOIS SUPREME COURT IN ORDER TO SECURE
AN INJUNCTION BROAD ENOUGH TO PREVENT PETITIONERS' PEACEABLE
COMMUNICATION TO THE PUBLIC OF THEIR SIDE OF THE CONTROVERSY.  IT IS
TOO MUCH TO EXPECT THAT AFTER COMPLETE APPROVAL OF THIS ABRIDGMENT OF
PUBLIC DISCUSSION BY THE SUPREME COURT OF ILLINOIS, AND AFTER THE
OPINION JUST ANNOUNCED, THE INJUNCTION WILL NOT BE ENFORCED AS
WRITTEN.  SO WRITTEN, THERE COULD HARDLY BE PROVIDED A MORE CERTAIN
METHOD WHOLLY AND COMPLETELY TO PREVENT ALL PUBLIC DISCUSSION
ANTAGONISTIC TO RESPONDENT'S METHOD OF SELLING MILK.  AND IT IS CLAIMED
BY THE MEMBERS OF THE PETITIONING UNION THAT FORECLOSURE OF OPPORTUNITY
FOR PUBLIC DISCUSSION AMOUNTS TO A DEATH SENTENCE FOR THE METHOD OF
BUSINESS WHICH GIVES THEM EMPLOYMENT.  THE DECISION HERE THUS PERMITS
STATE CONTROL BY INJUNCTION AS A SUBSTITUTE FOR COMPETITIVE DISCUSSION
OF A CONTROVERSY OF PARTICULAR INTEREST TO THE UNION, AND A MATTER OF
PUBLIC CONCERN AS WELL. 

A CAREFUL STUDY OF THE ENTIRE RECORD IN THIS CASE CONVINCES ME THAT
NEITHER THE FINDINGS NOR THE EVIDENCE, EVEN VIEWED IN THE LIGHT MOST
FAVORABLE TO RESPONDENT, SHOWED SUCH IMMINENT, CLEAR AND PRESENT DANGER
FN14  AS TO JUSTIFY AN ABRIDGMENT OF THE RIGHTS OF FREEDOM OF SPEECH
AND THE PRESS.  THE PICKETING, WHICH DID NOT BEGIN UNTIL SEPTEMBER,
1934, HAS AT ALL TIMES BEEN PEACEFUL.  USUALLY ONE PICKET, AND NEVER
MORE THAN TWO, WALKED ALONG THE STREET BEARING A SIGN.  THESE PICKETS
NEVER IMPEDED TRAFFIC EITHER ON THE SIDEWALKS OR IN THE STREET, NOR DID
THEY DISTURB ANY PASSERSBY OR CUSTOMERS.  IN FACT, IT IS STIPULATED IN
THE RECORD THAT PICKETS "MADE NO THREATS AGAINST ANY OF THESE
STOREKEEPERS, BUT PEACEFULLY PICKETED THESE STORES.  THEY MADE NO
ATTEMPT TO STOP ANY CUSTOMERS OR TO STOP DELIVERY EXCEPT INSOFAR AS
THEIR SITUATION AND THE SIGNS THEY BORE HAD THAT TENDENCY."  THERE WAS
NO EVIDENCE TO CONNECT THEM WITH ANY KIND OR TYPE OF VIOLENCE AT ANY
TIME OR PLACE.  AS WAS FOUND BY THE MASTER, THIS WAS IN ACCORDANCE WITH
THE INSTRUCTION WHICH WAS GIVEN TO THEM BY THE UNION OFFICIALS.  FN15
THERE IS NO EVIDENCE AND NO FINDING THAT DISSEMINATION OF INFORMATION
BY PICKETS STIMULATED ANYONE ELSE TO COMMIT ANY ACT OF VIOLENCE. 

THERE WAS EVIDENCE THAT VIOLENCE OCCURRED - SOME COMMITTED BY
IDENTIFIED PERSONS AND SOME BY UNIDENTIFIED PERSONS.  A STRIKE OF
FARMERS SUPPLYING MOST OF CHICAGO'S MILK TOOK PLACE IN THE EARLY PART
OF JANUARY, 1934.  THIS STRIKE PRACTICALLY STOPPED THE INFLOW OF MILK
INTO THE CITY.  AS A RESULT, THE UNION DRIVERS WERE ORDERED NOT TO
REPORT FOR WORK ON JANUARY 8 AND 9, AT THE HEIGHT OF THE STRIKE.  IT
WAS DURING THIS PERIOD THAT THE LARGER PART OF THE MAJOR ACTS OF
VIOLENCE OCCURRED.  ACCORDING TO THE COMPLAINT AND THE EVIDENCE, SEVEN
TRUCKS WERE SEIZED OR DAMAGED ON THE 8TH AND 9TH OF JANUARY, 1934, AND
ONE ON THE 6TH.  THESE ARE THE ONLY TRUCKS THAT WERE EVER SEIZED OR
DAMAGED, ACCORDING TO BOTH THE COMPLAINT AND THE EVIDENCE, AND IT WAS
IN CONNECTION WITH THESE SEIZURES THAT THE INJURIES TO TRUCK DRIVERS,
THE SHOOTINGS, AND THE THREATS REFERRED TO IN THIS COURT'S OPINION TOOK
PLACE.  UNDOUBTEDLY, SOME OF THE MEMBERS OF THE UNION PARTICIPATED IN
THIS VIOLENCE, AS IS SHOWN BY THE FACT THAT SEVERAL WERE ARRESTED,
CRIMINAL PROSECUTIONS WERE INSTITUTED, AND THE CASES LATER SETTLED WITH
THE APPROVAL OF THE TRIAL JUDGE.  IT WAS EIGHT MONTHS AFTER THIS BEFORE
ANY PICKETING OCCURRED; FOUR YEARS AFTERWARDS BEFORE THE TRIAL JUDGE
GRANTED AN INJUNCTION, LIMITED TO VIOLENCE ALONE; FIVE YEARS BEFORE THE
SUPREME COURT OF ILLINOIS DIRECTED A MORE STRINGENT INJUNCTION AGAINST
PEACEFUL PERSUASION; AND SEVEN YEARS BEFORE THIS COURT SUSTAINED THE
INJUNCTION. 

DURING THE PERIOD OF THE FARMERS' STRIKE IN 1934, AND IN THE
IMMEDIATELY SUCCEEDING MONTHS, FIVE STORES WERE EITHER BOMBED OR
BURNED.  THREE UNION MEMBERS WERE TRIED, CONVICTED AND SENTENCED TO THE
PENITENTIARY FOR ARSON IN CONNECTION WITH ONE OF THESE BURNINGS.  ALL
OF THIS VIOLENCE TOOK PLACE MANY MONTHS BEFORE ANY OF THE PICKETING
OCCURRED.  IN ADDITION TO THESE 1934 ACTS OF VIOLENCE, THE EVIDENCE
SHOWED THAT ONE STENCH BOMB WAS THROWN INTO A STORE IN 1935, ONE IN
1936, AND TWO IN 1937.  THE IDENTITY OF THE PERSONS THROWING THESE
STENCH BOMBS WAS NOT SHOWN. 

THE ONLY OTHER VIOLENCE ALLEGED OR TESTIFIED TO WAS THE BREAKING OF
WINDOWS IN CUT-RATE STORES.  MOST OF THE TESTIMONY AS TO THESE ACTS OF
VIOLENCE WAS GIVEN BY RESPONDENT'S VENDORS, AND WAS EXTREMELY
INDEFINITE.  THE MASTER MADE NO FINDINGS AS TO SPECIFIC ACTS OF
VIOLENCE, NOR AS TO THE DATES OF THEIR OCCURRENCE.  VIEWING THE
EVIDENCE IN THE LIGHT MOST FAVORABLE TO RESPONDENT, HOWEVER, ALL OF THE
ACTS OF VIOLENCE AS TO WHICH ANY TESTIMONY WAS OFFERED ARE GATHERED IN
THE ACCOMPANYING FOOTNOTE.  FN16 

IT IS ON THE BASIS OF MY STUDY OF THE ENTIRE RECORD THAT I REST MY
CONCLUSION THAT THE FORFEITURE OF THE RIGHT TO FREE SPEECH EFFECTED BY
THE INJUNCTION IS NOT WARRANTED.  IN REACHING THIS CONCLUSION, I FULLY
RECOGNIZE THAT THE UNION MEMBERS GUILTY OF VIOLENCE WERE SUBJECT TO
PUNISHMENT IN ACCORDANCE WITH THE PRINCIPLES OF DUE PROCESS OF LAW. 
AND SOME OF THEM HAVE IN FACT BEEN PROSECUTED AND CONVICTED. 
PUNISHMENT OF LAWLESS CONDUCT IS IN ACCORD WITH THE NECESSITIES OF
GOVERNMENT AND IS ESSENTIAL TO THE PEACE AND TRANQUILLITY OF SOCIETY. 
BUT IT IS GOING A LONG WAY TO SAY THAT BECAUSE OF THE ACTS OF THESE FEW
MEN, SIX THOUSAND OTHER MEMBERS OF THEIR UNION CAN BE DENIED THE RIGHT
TO EXPRESS THEIR OPINION TO THE EXTENT ACCOMPLISHED BY THE SWEEPING
INJUNCTION HERE SUSTAINED N17.  EVEN THOSE CONVICTED OF CRIME ARE NOT
IN THIS COUNTRY PUNISHED BY HAVING THEIR FREEDOM OF EXPRESSION
CURTAILED EXCEPT UNDER PRISON RULES AND REGULATIONS, AND THEN ONLY FOR
THE DURATION OF THEIR SENTENCE. 

NO ONE DOUBTS THAT ILLINOIS CAN PROTECT ITS STOREKEEPERS FROM BEING
COERCED BY FEAR OF DAMAGE TO THEIR PROPERTY FROM WINDOW-SMASHING, OR
BURNINGS OR BOMBINGS.  AND TO THAT END ILLINOIS IS FREE TO USE ALL ITS
VAST RESOURCES AND POWERS, NOR SHOULD THIS COURT STAND IN THE WAY SO
LONG AS ILLINOIS DOES NOT TAKE AWAY FROM ITS PEOPLE RIGHTS GUARANTEED
TO THEM BY THE CONSTITUTION OF THE UNITED STATES.  WHEN CLEAR AND
PRESENT DANGER OF RIOT, DISORDER, INTERFERENCE WITH TRAFFIC UPON THE
PUBLIC STREETS, OR OTHER IMMEDIATE THREAT TO PUBLIC SAFETY, PEACE, OR
ORDER APPEARS, THE POWER OF THE ILLINOIS COURTS TO PREVENT OR PUNISH IS
OBVIOUS.  FN18  FURTHERMORE, THIS IS TRUE BECAUSE A STATE HAS THE POWER
TO ADOPT LAWS OF GENERAL APPLICATION TO PROVIDE THAT THE STREETS SHALL
BE USED FOR THE PURPOSE FOR WHICH THEY PRIMARILY EXIST, AND BECAUSE THE
PRESERVATION OF PEACE AND ORDER IS ONE OF THE FIRST DUTIES OF
GOVERNMENT.  BUT IN A SERIES OF CASES WE HAVE HELD THAT LOCAL LAWS
OSTENSIBLY PASSED PURSUANT TO THIS ADMITTEDLY POSSESSED GENERAL POWER
COULD NOT BE ENFORCED IN SUCH A WAY AS TO AMOUNT TO A PRIOR CENSORSHIP
ON FREEDOM OF EXPRESSION, OR TO ABRIDGE THAT FREEDOM AS TO THOSE
RIGHTFULLY AND LAWFULLY ON THE STREETS.  FN19  ILLINOIS, LIKE ALL THE
OTHER STATES OF THE UNION, IS PART OF A NATIONAL DEMOCRATIC SYSTEM THE
CONTINUED EXISTENCE OF WHICH DEPENDS UPON THE RIGHT OF FREE DISCUSSION
OF PUBLIC AFFAIRS - A RIGHT WHOSE DENIAL TO SOME LEADS IN THE DIRECTION
OF ITS EVENTUAL DENIAL TO ALL.  I AM OF OPINION THAT THE COURT'S
INJUNCTION STRIKES DIRECTLY AT THE HEART OF OUR GOVERNMENT, AND THAT
DEPRIVATION OF THESE ESSENTIAL LIBERTIES CANNOT BE RECONCILED WITH THE
RIGHTS GUARANTEED TO THE PEOPLE OF THIS NATION BY THEIR CONSTITUTION. 

FN1  THE RECORD SHOWS THAT IN A PETITION TO DETERMINE DAMAGES, FILED
EVEN BEFORE THE TRIAL COURT ENTERED ITS FINAL ORDER, THE PETITIONERS
SAID:  "THE COURT WAS INFORMED AT THAT TIME (WHEN THE ORIGINAL EFFORT
WAS MADE TO SECURE DISSOLUTION OF THE TEMPORARY INJUNCTION) THAT THE
DEFENDANTS AND EACH OF THEM, WERE WHOLLY IN ACCORD WITH THE INJUNCTION
PROHIBITING VIOLENCE OF ANY KIND.  ...  "  R. 265. 

FN2  "THAT THE INSTRUCTIONS GIVEN TO SUCH PERSONS SO PATROLLING OR
PICKETING BY THE OFFICERS OF THE DEFENDANT UNION HAVE BEEN TO DO SAME
PEACEFULLY AND NOT TO INTERFERE WITH THE ORDINARY COURSE OF BUSINESS IN
SAID STORES, EXCEPT TO PATROL BACK AND FORTH WITH SAID PLACARDS."  R.
230-231. 

MEADOWMOOR HAD ORIGINALLY SOUGHT AN INJUNCTION IN THE FEDERAL
DISTRICT COURT.  THE FEDERAL MASTER'S REPORT, INTRODUCED IN THIS CASE
AS AN EXHIBIT FOR MEADOWMOOR, STATES:  "I FURTHER FIND THAT THE
INSTRUCTIONS GIVEN TO SUCH PERSONS PATROLLING OR PEACEFULLY PICKETING
BY THE OFFICERS OF THE DEFENDANT ASSOCIATION HAVE BEEN NOT TO SPEAK OR
CARRY ON ANY CONVERSATION WITH ANY OTHER PERSON OR PERSONS IN FRONT OF
THE SAID PREMISES, NOR TO INTERFERE WITH THE ORDERLY COURSE OF BUSINESS
OF THE SAID STORES, EXCEPT TO PATROL BACK AND FORTH WITH THE SAID
PLACARD."  R. 165. 

FN3  "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."  IT IS NOW TOO WELL SETTLED TO REQUIRE CITATION THAT BY
THE FOURTEENTH AMENDMENT THE GUARANTIES OF THE FIRST AMENDMENT ARE
PROTECTED AGAINST ABRIDGMENT BY THE STATES. 

FN4  THOMAS JEFFERSON, THE GREAT STRATEGIST OF THE CAMPAIGN TO BRING
ABOUT THE ADOPTION OF THE BILL OF RIGHTS, A CAMPAIGN WHICH HE BEGAN
EVEN BEFORE THE CONSTITUTION WAS ADOPTED, SAID AS TO ONE OF THE
GUARANTIES OF THE FIRST AMENDMENT:  "THE BASIS OF OUR GOVERNMENTS BEING
THE OPINION OF THE PEOPLE, THE VERY FIRST OBJECT SHOULD BE TO KEEP THAT
RIGHT; AND WERE IT LEFT TO ME TO DECIDE WHETHER WE SHOULD HAVE A
GOVERNMENT WITHOUT NEWSPAPERS, OR NEWSPAPERS WITHOUT A GOVERNMENT, I
SHOULD NOT HESITATE A MOMENT TO PREFER THE LATTER." 

FN5  THORNHILL V. ALABAMA, 310 U.S. 88, 102.  CF. NEW NEGRO ALLIANCE
V. SANITARY GROCERY CO., 303 U.S. 552. 

FN6  ELLINGSEN V. MILK WAGON DRIVERS' UNION, 2 LABOR CASES 567, 568;
377 ILL. 76. 

FN7  ILLINOIS HAS AN ANTI-INJUNCTION STATUTE RELATING TO MATTERS
INVOLVING LABOR DISPUTES (ILL. REV. STAT. 1939, CHAP. 48, SEC. 2(A)). 
THE SUPREME COURT SAID THAT THIS STATUTE WAS MODELED ON THE FEDERAL
CLAYTON ACT (38 STAT. 738, 29 U.S.C. SEC. 52).  BUT THE COURT HELD THAT
THE FACTS HERE DID NOT CONSTITUTE THE TYPE OF "LABOR DISPUTE" TO WHICH
THE ACT APPLIED.  371 ILL. AT 383-386; 21 N.E.2D 308.  CF. MILK WAGON
DRIVERS' UNION V. LAKE VALLEY FARM PRODUCTS, 311 U.S. 91. 

FN8  THORNHILL V. ALABAMA, 310 U.S. 88, 105. 

FN9  310 U.S. 296, 307-308. 

FN10  CF. THORNHILL V. ALABAMA, 310 U.S. 88; CARLSON V. CALIFORNIA,
310 U.S. 106.  WITH A CHANGE OF BUT ONE WORD, A PASSAGE FROM THE
CARLSON CASE IS DIRECTLY APPLICABLE TO THE PRESENT CASE:  "THE SWEEPING
AND INEXACT TERMS OF THE (INJUNCTION) DISCLOSE THE THREAT TO FREEDOM OF
SPEECH INHERENT IN ITS EXISTENCE.  IT CANNOT BE THOUGHT TO DIFFER IN
ANY MATERIAL RESPECT FROM THE STATUTE HELD VOID IN THORNHILL'S CASE." 
310 U.S. AT 112. 

AND A COMPARISON OF THE LANGUAGE OF THE STATUTES HELD INVALID IN THE
THORNHILL AND CARLSON CASES WITH THAT OF THE INJUNCTION HERE SUSTAINED
IS VERY REVEALING:

                          THORNHILL STATUTE: 

"GOING) NEAR TO OR LOITERING) ABOUT THE PREMISES OR PLACE OF BUSINESS
...  ; INFLUENCING 

...  PERSONS NOT TO TRADE  ...  ; PICKETING) THE WORKS OR PLACE OF
BUSINESS  ...  "

                MEADOWMOOR INJUNCTION: 

"WALKING UP AND DOWN IN FRONT OF SAID STORES  ...  ; DISCOURAGING
...  PERSONS  ... CONTEMPLATING PURCHASING  ...  ; INTERFERING,
HINDERING, OR  ...  DIVERTING)  ...  PERSONS DESIROUS OF  ...
PURCHASING ...  ; USING) SIGNS, BANNERS OR PLACARDS  ...  IN FRONT OF
SAID STORES  ...  "

                           CARLSON STATUTE: 

"LOITERING) IN FRONT OF  ...  ANY PLACE OF BUSINESS  ...  ;
INFLUENCING  ...  ANY PERSON TO REFRAIN FROM PURCHASING  ...  ;
INTIMIDATING, THREATENING OR COERCING  ...  ANY PERSON  ...  ;
DISPLAYING) ANY BANNER  ...  BADGE OR SIGN IN FRONT OF  ...  ANY PLACE
OF BUSINESS  ...  " 

FN11  IN ILLINOIS, THE POWER TO PUNISH SUMMARILY FOR CONTEMPT IS SAID
TO BE A BROAD "INHERENT" POWER OF COURTS, "INDEPENDENT OF STATUTORY
PROVISIONS" AND OF "CONSTITUTIONAL GRANT."  SCHMIDT V. COOPER, 274 ILL.
243, 250; 113 N.E. 641; PEOPLE V. PETERS, 305 ILL. 223, 226-227; 137
N.E. 118.  AND WHERE A TRIAL JUDGE HAS RULED THAT CONDUCT IS OR IS NOT
CONTEMPT, THE APPELLATE COURT WILL NOT INTERFERE UNLESS THE TRIAL
JUDGE'S FINDINGS ARE "MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE" OR
"CLEARLY AND PALPABLY CONTRARY" TO IT.  SEE OEHLER V. LEVY, 256 ILL.
178, 183; 99 N.E. 912; BOYDEN V. BOYDEN, 162 ILL. APP. 77, 83; AMERICAN
CIGAR CO. V. BERGER, 221 ILL. APP. 339, 341(VIOLATION OF INJUNCTION
AGAINST PICKETING); ID., 221 ILL. APP. 332; SCHMOOK V. FANE, 301 ILL.
APP. 626; 22 N.E.2D 450(VIOLATION OF INJUNCTION AGAINST PICKETING). 
AND WHERE THE TRIAL COURT HAS DETERMINED THE EXTENT OF THE PUNISHMENT
TO BE INFLICTED, "COURTS OF APPELLATE JURISDICTION WILL NOT INTERFERE
WITH THE EXERCISE OF SUCH DISCRETION EXCEPT FOR ITS ABUSE."  ASH-MADDEN
RAE CO. V. INTERNATIONAL LADIES GARMENT WORKERS' UNION, 290 ILL. 301,
306; 125 N.E. 258(VIOLATION OF INJUNCTION AGAINST PICKETING). 

FN12  CF. COHEN V. UNITED STATES, 295 F. 633; TALIAFERRO V. UNITED
STATES, 290 F. 906, 214.  COHEN, "THE OWNER, EDITOR, AND PUBLISHER" OF
A NEWSPAPER, WAS CONVICTED OF CONTEMPT BY THE DISTRICT COURT UNDER AN
INJUNCTION RESTRAINING "STRIKERS AND THEIR SYMPATHIZERS."  THE CIRCUIT
COURT OF APPEALS REVERSED.  TALIAFERRO, A BARBER IN NO WAY CONNECTED
WITH A RAILROAD STRIKE, WAS CONVICTED OF CONTEMPT UNDER AN INJUNCTION
RESTRAINING UNION MEMBERS AND THOSE "ASSOCIATED WITH THEM." 
TALIAFERRO'S OFFENSE CONSISTED IN PLACING IN HIS WINDOW A SIGN SAYING
"NO SCABS WANTED IN HERE."  THE CIRCUIT COURT OF APPEALS AFFIRMED THE
CONVICTION.  AND SEE ILLINOIS MALLEABLE IRON CO. V. MICHALEK, 279 ILL.
221; 116 N.E. 714.    FN13  CF. FRANKFURTER AND GREENE, THE LABOR
INJUNCTION, P. 112, CITING HOTEL & RAILROAD NEWS CO. V. CLARK, 243
MASS. 317; 137 N.E. 534.  AND SEE HITCHMAN COAL & COKE CO. V. MITCHELL,
245 U.S. 229, 262; ILLINOIS MALLEABLE IRON CO. V. MICHALEK, 279 ILL.
221, 228; 116 N.E. 714. 

FN14  CANTWELL V. CONNECTICUT, 310 U.S. 296, 308; CARLSON V.
CALIFORNIA, 310 U.S. 106, 113; HERNDON V. LOWRY, 301 U.S. 242, 258;
SCHENCK V. UNITED STATES, 249 U.S. 47, 52.  AND SEE THE CONCURRING
OPINION OF JUSTICES HOLMES AND BRANDEIS IN WHITNEY V. CALIFORNIA, 274
U.S. 357, 373, AND THE DISSENTING OPINIONS OF THE SAME JUSTICES IN
GITLOW V. NEW YORK, 268 U.S. 652, 672-673; PIERCE V. UNITED STATES, 252
U.S. 239, 255; SCHAEFER V. UNITED STATES, 251 U.S. 466, 482; AND ABRAMS
V. UNITED STATES, 250 U.S. 616, 627. 

FN15  SEE NOTE 2, SUPRA. 

FN16

STORES

                        WINDOWS    TRUCKS    BOMBED OR
MISCELLANEOUS

                        BROKEN SEIZED     BURNED 

1934....................    34         8           5             4 

1935....................     5       0           1             0 

1936....................     7         0           1             0 

1937....................     7         0           2             0

               53         8           9             4 

PETITIONERS OFFERED EVIDENCE THAT THREE MEN, WITH NO UNION
CONNECTIONS WHATSOEVER, CONFESSED TO AND WERE CONVICTED OF THE SMASHING
OF WINDOWS IN TWENTY-FOUR CUT-RATE MILK STORES IN 1934, PURSUANT TO AN
INSURANCE RACKET.  THE MASTER STRUCK THIS EVIDENCE FROM THE RECORD, ON
RESPONDENT'S MOTION. 

IN ADDITION TO THE ACTS OF VIOLENCE ENUMERATED IN THE FOREGOING
TABLE, THERE WAS EVIDENCE OF SIX ACTS OF VIOLENCE IN 1932, AMONG THEM
THE BOMBING OF MEADOWMOOR'S PLANT REFERRED TO IN THE OPINION. 
PETITIONERS OFFERED EVIDENCE TO SHOW THAT AT THAT TIME RESPONDENT WAS
GANGSTER-DOMINATED, AND THAT THE GANGSTERS IN QUESTION HAD SOUGHT TO
OBTAIN CONTROL OF THE UNION, BUT THIS EVIDENCE WAS EXCLUDED. 

THE OPINION ALSO REFERS TO THE BEATING OF WORKERS AT A CUT-RATE DAIRY
OTHER THAN MEADOWMOOR.  THE MASTER DID NOT MENTION THIS INCIDENT IN HIS
FINDINGS, BUT IT IS REFERRED TO IN THE EVIDENCE, AND FROM THAT SOURCE
IT APPEARS THAT THOSE BEATEN AND TOLD "TO JOIN THE UNION" WERE INSIDE
WORKERS NOT ELIGIBLE FOR MEMBERSHIP IN THE PETITIONING UNION. 

FN17  IT IS SAID THAT THE DECISION HERE LEAVES THE ILLINOIS COURTS
FREE TO CONSIDER MODIFICATION OF THE INJUNCTION.  BUT WHETHER
MODIFICATION IS PERMISSIBLE OR WILL IN FACT TAKE PLACE DEPENDS ON
ILLINOIS LAW AND ILLINOIS COURTS.  A STATUTE CAN BE MODIFIED OR EVEN
REPEALED BY SUBSEQUENT LEGISLATION, BUT IF UPON ITS FACE IT INFRINGES
THE RIGHT OF FREE SPEECH IT IS INVALID.  AND A COURT'S INJUNCTION,
MAKING A LAW FOR A PARTICULAR CASE, CAN STAND NO HIGHER THAN A
LEGISLATURE'S ACT, GENERALLY APPLICABLE TO ALL THE PEOPLE. 

FN18  CANTWELL V. CONNECTICUT, 310 U.S. 296, 308. 

FN19  LOVELL V. CITY OF GRIFFIN, 303 U.S. 444; SCHNEIDER V. STATE,
308 U.S. 147; THORNHILL V. ALABAMA, 310 U.S. 88; CARLSON V. CALIFORNIA,
310 U.S. 106; CANTWELL V. CONNECTICUT, 310 U.S. 296. 

MR. JUSTICE DOUGLAS CONCURS IN THIS OPINION. 

MR. JUSTICE REED, DISSENTING. 

MY CONCLUSION IS THAT THE INJUNCTION ORDERED BY THE SUPREME COURT OF
ILLINOIS VIOLATES THE CONSTITUTIONAL RIGHTS OF THE MILK WAGON DRIVERS
UNION OF CHICAGO, ITS OFFICERS AND MEMBERS.  THE COURT REACHES A
CONTRARY RESULT ON THE GROUND THAT A STATE MAY "AUTHORIZE ITS COURTS TO
ENJOIN ACTS OF PICKETING IN THEMSELVES PEACEFUL WHEN THEY ARE ENMESHED
WITH CONTEMPORANEOUSLY VIOLENT CONDUCT WHICH IS CONCEDEDLY OUTLAWED." 
SINCE THIS CONTROVERSY, BY VIRTUE OF THE COURT'S OPINION, CENTERS
AROUND PICKETING AS A PHASE OF FREE SPEECH RATHER THAN AROUND THE MORE
GENERAL TOPIC OF FREEDOM OF EXPRESSION, I DESIRE TO STATE FOR MYSELF
THE REASONS WHICH LEAD ME TO THE CONVICTION THAT THE JUDGMENT SHOULD BE
REVERSED.  A PRINCIPLE IS THUS INVOLVED, AS WELL AS A DISPUTE OVER THE
SCOPE OF A COURT INJUNCTION. 

THE RECORD SHOWS INEXCUSABLE ACTS OF VIOLENCE, COMMITTED AT LEAST IN
PART BY MEMBERS OF THE UNION.  FOR SUCH CONDUCT, THE OFFENDERS ARE
SUBJECT TO PUNISHMENT BY THE CRIMINAL LAWS OF ILLINOIS.  THE FUTURE
CONDUCT OF THE RIOTERS IS ALSO SUBJECT TO STATE CONTROL BY INJUNCTION,
EXERCISED WITHIN THE LIMITS OF THE CONSTITUTION.  THE BURDEN AND THE
DUTY OF MAINTAINING LAW AND ORDER FALL PRIMARILY ON ILLINOIS.  WHETHER
IT CHOOSES AN INJUNCTION AGAINST VIOLENCE ALONE OR AGAINST VIOLENCE AND
PEACEFUL PICKETING, IT MUST BE ASSUMED THAT ITS COMMANDS WILL BE
OBEYED.  IT IS A POSTULATE OF REASONED THINKING THAT THE JUDICIAL
DECREES WILL BE FAITHFULLY CARRIED OUT.  THIS QUESTION THEN EMERGES. 
IS THE RIGHT TO PICKET PEACEFULLY AN EMPLOYER'S PLACE OF BUSINESS LOST
FOR ANY PERIOD OF FUTURE TIME BY PAST ACTS OF VIOLENCE?  THE TRIAL
COURT, IN THIS VERY CASE, WHILE PROHIBITING ALL VIOLENCE, PERMITTED BY
ITS INJUNCTION THE CONTINUANCE OF EFFORTS BY THE UNION, EITHER SINGLY
OR IN CONCERT, TO PEACEABLY PERSUADE OTHERS BY PICKETING OR OTHER
LAWFUL MEANS TO SUPPORT ITS CONTENTIONS. 

WHERE NOTHING FURTHER APPEARS, IT IS AGREED THAT PEACEFUL PICKETING,
SINCE IT IS AN EXERCISE OF FREEDOM OF SPEECH, MAY NOT BE PROHIBITED BY
INJUNCTION OR BY STATUTE.  THORNHILL V. ALABAMA, 310 U.S. 88; AMERICAN
FEDERATION OF LABOR V. SWING, POST, P. 321.  IT IS EQUALLY CLEAR THAT
THE RIGHT TO PICKET IS NOT ABSOLUTE.  IT MAY, IF ACTUALLY NECESSARY, BE
LIMITED, LET US SAY, TO TWO OR THREE INDIVIDUALS AT A TIME AND THEIR
MANNER OF EXPRESSING THEIR VIEWS MAY BE REASONABLY RESTRICTED TO AN
ORDERLY PRESENTATION.  THORNHILL V. ALABAMA, SUPRA, 105.  FROM THE
STANDPOINT OF THE STATE, INDUSTRIAL CONTROVERSY MAY NOT OVERSTEP THE
BOUNDS OF AN APPEAL TO REASON AND SYMPATHY. 

THE COURT NOW DETERMINES THAT WHERE THERE IS A BACKGROUND OF
VIOLENCE, AND INFERENTIALLY, I THINK IT MUST BE ADMITTED, THAT WHERE
THERE IS A REASONABLE FEAR OF VIOLENCE, THE FREEDOM OF SPEECH WHICH IS
SECURED TO ALL PERSONS BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION MAY BE WITHDRAWN.  IT FINDS ITS JUSTIFICATION IN THE
AUTHORITY OF ILLINOIS TO "PROTECT ITS STOREKEEPERS FROM BEING COERCED
BY FEAR OF WINDOW-SMASHINGS OR BURNINGS OR BOMBINGS."  THE MOMENTUM OF
FEAR FROM PAST VIOLENCE, IT IS THOUGHT, WOULD REACH OVER INTO THE
PEACEFUL PICKETING OF THE FUTURE.  THIS GOES MUCH FARTHER THAN THE
INJUNCTION APPROVED BY THIS COURT IN HAGUE V. C.I.O., 307 U.S. 496,
517, WHICH FORBADE INTERFERENCES WITH THE LIBERTY OF FREE SPEECH BUT
LEFT TO THE GUARDIANS OF PUBLIC PEACE THE RIGHT "TO ENFORCE LAW AND
ORDER BY LAWFUL SEARCH AND SEIZURE OR BY ARREST AND PRODUCTION BEFORE A
JUDICIAL OFFICER."  THIS AUTHORITY OF ILLINOIS TO PROTECT ITS
STOREKEEPERS MUST BE EXERCISED, HOWEVER, WITHIN THE FRAMEWORK OF THE
CONSTITUTION.  IF ILLINOIS WERE NOT A MEMBER OF THE UNITED STATES, BUT
A SOVEREIGN WITHOUT EXTERIOR POLITICAL OR SOCIAL OBLIGATIONS, IT WOULD
BE IN A POSITION TO USE WHATEVER MEANS IT OR ITS COURTS MIGHT DECIDE
WOULD BEST PUT AN END TO LABOR DISTURBANCES.  AS A STATE OF THE UNION
IT IS SUBJECT TO THE RESTRAINTS OF THE CONSTITUTION.  IF THE FEAR
ENGENDERED BY PAST MISCONDUCT COERCES STOREKEEPERS DURING PEACEFUL
PICKETING, THE REMEDY LIES IN THE MAINTENANCE OF ORDER, NOT IN DENIAL
OF FREE SPEECH.  CONSTITUTIONAL GUARANTEES AGAINST OPPRESSION ARE OF
VALUE ONLY WHEN NEEDED TO CHALLENGE ATTACKS. 

THE RIGHT TO PICKET PEACEFULLY IN INDUSTRIAL DISPUTES IS A RECOGNIZED
MEANS FOR THE MARSHALING OF PUBLIC OPINION ON THE SIDE OF THE WORKER. 
THERE IS NO FINDING THAT VIOLENCE WAS PLANNED OR ENCOURAGED BY THE
UNION.  TO DENY THIS RIGHT OF PEACEFUL PICKETING TO THOUSANDS BECAUSE
OF THE VIOLENCE OF A FEW MEANS THE CUTTING OFF OF ONE OF THE
CONSTITUTIONALLY PROTECTED WAYS IN WHICH ORDERLY ADJUSTMENTS OF
ECONOMIC DISPUTES ARE BROUGHT ABOUT.  I CANNOT SEE THAT THE
CONSTITUTIONAL PROBLEM IS "TOTALLY DIFFERENT" BECAUSE RAISED BY A COURT
DECREE RATHER THAN A STATUTE.  CONSTITUTIONAL GUARANTEES ARE JUST AS
EFFECTIVE FOR THE INDIVIDUAL AS THEY ARE FOR THE GENERAL PUBLIC.  THE
PRINCIPLE CONTENDED FOR BY PETITIONERS IS THE RIGHT TO TELL THEIR SIDE
OF THE STORY BY PEACEFUL PICKETING DESPITE A STATE COURT'S VIEW THAT
SUCH PICKETING MAY PROJECT FEAR FROM PAST VIOLENCE INTO THE FUTURE.  IN
THE LAST ANALYSIS WE MUST ASK OURSELVES WHETHER THIS PROTECTION AGAINST
ASSUMED FEAR OF FUTURE COERCION FLOWING FROM PAST VIOLENCE IS
SUFFICIENT TO JUSTIFY THE SUSPENSION OF THE CONSTITUTIONAL GUARANTEE OF
FREE SPEECH.  IF PICKETING IS PROHIBITED HERE, THE RIGHT MAINTAINED BY
THORNHILL V. ALABAMA COLLAPSES ON THE FIRST ATTACK. 

THIS NATION RELIES UPON PUBLIC DISCUSSION AS ONE OF THE INDISPENSABLE
MEANS TO ATTAIN CORRECT SOLUTIONS OF PROBLEMS OF SOCIAL WELFARE. 
CURTAILMENT OF FREE SPEECH LIMITS THIS OPEN DISCUSSION.  OUR WHOLE
HISTORY TEACHES THAT ADJUSTMENT OF SOCIAL RELATIONS THROUGH REASON IS
POSSIBLE WHILE FREE SPEECH IS MAINTAINED.  THIS COURT HAS THE SOLEMN
DUTY OF DETERMINING WHEN ACTS OF LEGISLATION OR DECREES OF COURTS
INFRINGE THAT RIGHT GUARANTEED TO ALL CITIZENS.  FREE SPEECH MAY BE
ABSOLUTELY PROHIBITED ONLY UNDER THE MOST PRESSING NATIONAL
EMERGENCIES.  THOSE EMERGENCIES MUST BE OF THE KIND THAT JUSTIFY THE
SUSPENSION OF THE WRIT OF HABEAS CORPUS OR THE SUPPRESSION OF THE RIGHT
OF TRIAL BY JURY.  NOTHING APPROACHING THIS SITUATION EXISTS IN THIS
RECORD AND, IN MY JUDGMENT, THE ACTION OF THE SUPREME COURT OF ILLINOIS
IN PROHIBITING PEACEFUL PICKETING VIOLATES THE CONSTITUTIONAL RIGHTS OF
THESE PETITIONERS. 
..END :

















A.F. OF L. V. SWING, 312 U.S. 321 


NO. 56.  ARGUED DECEMBER 13, 1940.  - DECIDED FEBRUARY 10, 1941.  - 372
ILL. 91 - 22 N.E.2D 857, REVERSED. 


THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF DISCUSSION IS INFRINGED BY
THE COMMON LAW POLICY OF A STATE LIMITING PEACEFUL PICKETING BY LABOR
UNIONS TO CASES IN WHICH THE CONTROVERSY IS BETWEEN THE EMPLOYER AND
HIS OWN EMPLOYEES.  PP. 323, 325. 

AMERICAN FEDERATION OF LABOR ET AL. V. SWING ET AL. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

CERTIORARI, 310 U.S. 620, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
APPELLATE COURT OF ILLINOIS, 298 ILL. APP. 63, 18 N.E.2D 258, WHICH
DIRECTED AN INJUNCTION AGAINST PICKETING OF A BEAUTY SHOP BY A LABOR
UNION.  THE PLAINTIFFS WERE THE PROPRIETOR SWING AND HIS EMPLOYEES. 

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT DOES NOT CONFER AN
ABSOLUTE RIGHT TO STRIKE.  THE AMENDMENT DOES NOT OPERATE AS A
RESTRAINT UPON THE INHERENT POWER OF THE STATE TO REGULATE AND CONTROL
THE SOCIAL AND ECONOMIC DESTINY OF ITS CITIZENS.  LABOR DISPUTES
INVOLVE INTERNAL, SOCIAL AND ECONOMIC PROBLEMS OF THE STATE; (EXCEPT
WHERE THE POWER TO REGULATE OR CONTROL IS GRANTED TO THE FEDERAL
GOVERNMENT BY THE CONSTITUTION OF THE UNITED STATES, EITHER BY DIRECT
GRANT OR AS AN INCIDENT TO THE EXERCISE OF GRANTED POWER).  SCHECHTER
CORP. V. UNITED STATES, 295 U.S. 495; CARTER V. CARTER COAL CO., 298
U.S. 238; SENN V. TILE LAYERS UNION, 301 U.S. 468; LAUF V. SHINNER &
CO., 303 U.S. 323. 

ASSUMING THAT THE JUDGMENT OF A STATE COURT, ENUNCIATING THE COMMON
LAW OF THE STATE, CAN BE CONSIDERED AS A DECLARATION OF STATE POLICY
AND ANALOGOUS TO A STATE STATUTE, THE DECLARATION OF POLICY IN THIS
CASE IS NOT AN UNREASONABLE OR ARBITRARY EXERCISE OF STATE
SOVEREIGNTY.  NEBBIA V. NEW YORK, 291 U.S. 502; WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379; NATIONAL LABOR RELATIONS BOARD V. JONES &
LAUGHLIN, 301 U.S. 1; MINERSVILLE SCHOOL DISTRICT V. GOBITIS, 310 U.S.
586. 

THE OBJECTIVE SOUGHT TO BE ATTAINED BY THE TRADE UNION HAVING BEEN
DECLARED TO BE UNLAWFUL, THE MEANS USED - THE STRIKE CAMPAIGN, THE
PICKETING AND PATROLLING - ARE NECESSARILY UNLAWFUL AS BEING A PART OF
A CONSPIRACY TO DAMAGE AND INJURE AND IN AID OF AN UNLAWFUL OBJECTIVE. 
AIKENS V. WISCONSIN, 195 U.S. 194; AMERICAN STEEL FOUNDRIES V. TRI-CITY
COUNCIL, 257 U.S. 184; DORCHY V. KANSAS, 272 U.S. 306; MEADOWMOOR
DAIRIES V. MILK WAGON DRIVERS UNION, 371 ILL. 377; FRANKFURTER &
GREENE, THE LABOR INJUNCTION, P. 25. 

THE DUE PROCESS CLAUSE DOES NOT GRANT AN UNBRIDLED LICENSE TO SPEAK. 
FREEDOM OF SPEECH IS ALWAYS SUBJECT TO THE EXERCISE OF GOVERNMENTAL
REGULATION AND CONTROL IN THE INTEREST OF PUBLIC WELFARE.  THE
FOURTEENTH AMENDMENT RECOGNIZES THE POWER OF THE STATE TO DEPRIVE
CITIZENS OF LIBERTY AND PROPERTY, AND EVEN LIFE, IF DONE IN THE
REASONABLE EXERCISE OF POLICE POWER.  SENN V. TILE LAYERS UNION, 301
U.S. 468; MEADOWMOOR DAIRIES V. MILK WAGON DRIVERS UNION, 371 ILL.
377. 

THIS CASE INVOLVES PRIVATE PARTIES, EACH SIDE SEEKING TO FURTHER ITS
OWN ECONOMIC WELL BEING.  IT IS DISTINGUISHABLE FROM AN ATTEMPT ON THE
PART OF THE STATE TO PASS AND ENFORCE PENAL LAWS.  THE CLEAR AND
PRESENT DANGER RULE SHOULD NOT BE THE TEST.  ABRAMS V. UNITED STATES,
250 U.S. 616; NEAR V. MINNESOTA, 283 U.S. 697. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN MILK WAGON DRIVERS UNION V. MEADOWMOOR DAIRIES, ANTE, P. 287, WE
HELD THAT ACTS OF PICKETING WHEN BLENDED WITH VIOLENCE MAY HAVE A
SIGNIFICANCE WHICH NEUTRALIZES THE CONSTITUTIONAL IMMUNITY WHICH SUCH
ACTS WOULD HAVE IN ISOLATION.  WHEN WE TOOK THIS CASE, 310 U.S. 620, IT
SEEMED TO PRESENT A SIMILAR PROBLEM.  MORE THOROUGH STUDY OF THE RECORD
AND FULL ARGUMENT HAVE REDUCED THE ISSUE TO THIS:  IS THE
CONSTITUTIONAL GUARANTEE OF FREEDOM OF DISCUSSION INFRINGED BY THE
COMMON LAW POLICY OF A STATE FORBIDDING RESORT TO PEACEFUL PERSUASION
THROUGH PICKETING MERELY BECAUSE THERE IS NO IMMEDIATE EMPLOYER
EMPLOYEE DISPUTE? 

A UNION OF THOSE ENGAGED IN WHAT THE RECORD DESCRIBES AS BEAUTY WORK
UNSUCCESSFULLY TRIED TO UNIONIZE SWING'S BEAUTY PARLOR.  PICKETING OF
THE SHOP FOLLOWED.  TO ENJOIN THIS INTERFERENCE WITH HIS BUSINESS AND
WITH THE FREEDOM OF HIS WORKERS NOT TO JOIN A UNION, SWING AND HIS
EMPLOYEES BEGAN THE PRESENT SUIT.  IN ADDITION, THEY CHARGED THE USE OF
FALSE PLACARDS IN PICKETING AND FORCIBLE BEHAVIOR TOWARDS SWING'S
CUSTOMERS.  A PRELIMINARY INJUNCTION WAS GRANTED.  ANSWERS WERE THEN
FILED DENYING VIOLENCE AS WELL AS FALSITY OF THE PLACARDS.  THE UNION
ALSO MOVED TO STRIKE THE COMPLAINT AND THE TRIAL COURT, FINDING THE
COMPLAINT WANTING IN EQUITY, GRANTED THE MOTION AND DISSOLVED THE
PRELIMINARY INJUNCTION.  THE APPELLATE COURT, ONE OF ILLINOIS'
INTERMEDIATE COURTS OF REVIEW, HELD THAT THE TRIAL COURT WAS IN ERROR. 
298 ILL. APP. 63; 18 N.E.2D 258.  THIS ACTION OF THE APPELLATE COURT
WAS AFFIRMED BY THE STATE SUPREME COURT.  372 ILL. 91; 22 N.E.2D 857. 
IT FOUND THAT THE COMPLAINT PROPERLY INVOKED EQUITY FOR THREE REASONS:
(1) THERE WAS NO DISPUTE BETWEEN THE EMPLOYER AND HIS IMMEDIATE
EMPLOYEES; (2) THE PLACARDS WERE LIBELOUS; (3) THERE WERE ACTS OF
VIOLENCE.  INASMUCH AS THE SUPREME COURT AFFIRMED THE ISSUANCE MERELY
OF A PRELIMINARY INJUNCTION, WE DENIED CERTIORARI FOR WANT OF A FINAL
JUDGMENT.  309 U.S. 659.  THEREUPON, ALTHOUGH AS WE HAVE SEEN ISSUE HAD
BEEN FORMALLY JOINED ON THE CLAIMS OF LIBEL AND VIOLENCE, THE APPELLATE
COURT, BY A PROCEDURE UNREVEALED BY THE RECORD AND WITHOUT OPINION,
ENTERED A PERMANENT INJUNCTION RANGING FROM PEACEFUL PERSUASION TO ACTS
OF VIOLENCE.  THE DECREE RECITED "THAT THIS COURT AND THE SUPREME COURT
OF THIS STATE HAVE HELD IN THIS CASE, THAT, UNDER THE LAW OF THIS
STATE, PEACEFUL PICKETING OR PEACEFUL PERSUASION ARE UNLAWFUL WHEN
CONDUCTED BY STRANGERS TO THE EMPLOYER (I.E., WHERE THERE IS NOT A
PROXIMATE RELATION OF EMPLOYEES AND EMPLOYER), AND THAT APPELLANTS ARE
ENTITLED IN THIS CASE TO RELIEF BY INJUNCTION AGAINST THE THREAT OF
SUCH PEACEFUL PICKETING OR PERSUASION BY APPELLEES."  THE UNION SOUGHT
REVIEW OF THIS DECREE IN THE SUPREME COURT BY WRIT OF ERROR.  SWING AND
HIS EMPLOYEES MOVED TO DISMISS THE WRIT BECAUSE IN SEEKING TO OBTAIN IT
THE UNION HAD CONCEDED THAT "ALL ISSUES OF THE CASE HAVE BEEN SETTLED
ON PRIOR APPEAL AND THAT THE DECREE ENTERED BY THE APPELLATE COURT IS
IN CONFORMITY WITH THE MANDATE ISSUED" TO THE APPELLATE COURT.  THE
WRIT WAS DISMISSED. 

SUCH IS THE CASE AS WE EXTRACT IT FROM A NONE TOO CLEAR RECORD.  IT
THUS APPEARS THAT IN PASSING UPON THE TEMPORARY INJUNCTION THE SUPREME
COURT OF ILLINOIS SUSTAINED IT IN PART BECAUSE OF ALLEGATIONS OF
VIOLENCE AND LIBEL.  BUT OUR CONCERN IS WITH THE FINAL DECREE OF THE
APPELLATE COURT.  ON ITS FACE THE PERMANENT INJUNCTION IN THAT DECREE
RESTED ON THE EXPLICIT AVOWAL THAT "PEACEFUL PERSUASION" WAS FORBIDDEN
IN THIS CASE BECAUSE THOSE WHO WERE ENJOINED WERE NOT IN SWING'S
EMPLOY.  MOREOVER, AS WE HAVE SEEN, THE SUPREME COURT OF ILLINOIS
DISMISSED PROCEEDINGS BEFORE IT TO REVIEW THAT DECREE ON
REPRESENTATIONS THAT THE DECREE WAS IN ACCORDANCE WITH ITS MANDATE ON
THE TEMPORARY INJUNCTION. 

SINCE THE CASE CLEARLY PRESENTS A SUBSTANTIAL CLAIM OF THE RIGHT TO
FREE DISCUSSION AND SINCE, AS WE HAVE FREQUENTLY INDICATED, THAT RIGHT
IS TO BE GUARDED WITH A JEALOUS EYE, HERNDON V. LOWRY, 301 U.S. 242,
258; SCHNEIDER V. STATE, 308 U.S. 147, 161; UNITED STATES V. CAROLENE
PRODUCTS CO., 304 U.S. 144, 152N., IT WOULD BE IMPROPER TO DISPOSE OF
THE CASE OTHERWISE THAN ON THE FACE OF THE DECREE, WHICH IS THE
JUDGMENT NOW UNDER REVIEW.  WE ARE THEREFORE NOT CALLED UPON TO
CONSIDER THE APPLICABILITY OF MILK WAGON DRIVERS UNION V. MEADOWMOOR
DAIRIES, SUPRA, THE CIRCUMSTANCES OF WHICH OBVIOUSLY PRESENT QUITE A
DIFFERENT SITUATION FROM THE CONTROLLING ALLEGATIONS OF VIOLENCE AND
LIBEL MADE IN THE PRESENT BILL. 

ALL THAT WE HAVE BEFORE US, THEN, IS AN INSTANCE OF "PEACEFUL
PERSUASION" DISENTANGLED FROM VIOLENCE AND FREE FROM "PICKETING EN
MASSE OR OTHERWISE CONDUCTED" SO AS TO OCCASION "IMMINENT AND
AGGRAVATED DANGER."  THORNHILL V. ALABAMA, 310 U.S. 88, 105.  WE ARE
ASKED TO SUSTAIN A DECREE WHICH FOR PURPOSES OF THIS CASE ASSERTS AS
THE COMMON LAW OF A STATE THAT THERE CAN BE NO "PEACEFUL PICKETING OR
PEACEFUL PERSUASION" IN RELATION TO ANY DISPUTE BETWEEN AN EMPLOYER AND
A TRADE UNION UNLESS THE EMPLOYER'S OWN EMPLOYEES ARE IN CONTROVERSY
WITH HIM. 

SUCH A BAN OF FREE COMMUNICATION IS INCONSISTENT WITH THE GUARANTEE
OF FREEDOM OF SPEECH.  THAT A STATE HAS AMPLE POWER TO REGULATE THE
LOCAL PROBLEMS THROWN UP BY MODERN INDUSTRY AND TO PRESERVE THE PEACE
IS AXIOMATIC.  BUT NOT EVEN THESE ESSENTIAL POWERS ARE UNFETTERED BY
THE REQUIREMENTS OF THE BILL OF RIGHTS.  THE SCOPE OF THE FOURTEENTH
AMENDMENT IS NOT CONFINED BY THE NOTION OF A PARTICULAR STATE REGARDING
THE WISE LIMITS OF AN INJUNCTION IN AN INDUSTRIAL DISPUTE, WHETHER
THOSE LIMITS BE DEFINED BY STATUTE OR BY THE JUDICIAL ORGAN OF THE
STATE.  A STATE CANNOT EXCLUDE WORKINGMEN FROM PEACEFULLY EXERCISING
THE RIGHT OF FREE COMMUNICATION BY DRAWING THE CIRCLE OF ECONOMIC
COMPETITION BETWEEN EMPLOYERS AND WORKERS SO SMALL AS TO CONTAIN ONLY
AN EMPLOYER AND THOSE DIRECTLY EMPLOYED BY HIM.  THE INTERDEPENDENCE OF
ECONOMIC INTEREST OF ALL ENGAGED IN THE SAME INDUSTRY HAS BECOME A
COMMONPLACE.  AMERICAN STEEL FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S.
184, 209.  THE RIGHT OF FREE COMMUNICATION CANNOT THEREFORE BE
MUTILATED BY DENYING IT TO WORKERS, IN A DISPUTE WITH AN EMPLOYER, EVEN
THOUGH THEY ARE NOT IN HIS EMPLOY.  COMMUNICATION BY SUCH EMPLOYEES OF
THE FACTS OF A DISPUTE, DEEMED BY THEM TO BE RELEVANT TO THEIR
INTERESTS, CAN NO MORE BE BARRED BECAUSE OF CONCERN FOR THE ECONOMIC
INTERESTS AGAINST WHICH THEY ARE SEEKING TO ENLIST PUBLIC OPINION THAN
COULD THE UTTERANCE PROTECTED IN THORNHILL'S CASE.  "MEMBERS OF A UNION
MIGHT, WITHOUT SPECIAL STATUTORY AUTHORIZATION BY A STATE, MAKE KNOWN
THE FACTS OF A LABOR DISPUTE, FOR FREEDOM OF SPEECH IS GUARANTEED BY
THE FEDERAL CONSTITUTION."  SENN V. TILE LAYERS UNION, 301 U.S. 468,
478.  REVERSED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT. 

MR. JUSTICE ROBERTS, DISSENTING. 

I AM UNABLE TO AGREE TO THE COURT'S DISPOSITION OF THIS CASE.  I
THINK THE WRIT SHOULD BE DISMISSED OR THE JUDGMENT AFFIRMED. 

THE RECORD PRESENTS DIFFICULT QUESTIONS CONCERNING ILLINOIS
PROCEDURE, AS TO WHICH THE PARTIES ARE IN DISAGREEMENT, AND WE OUGHT
NOT TO ATTEMPT TO RESOLVE THEM. 

THE RESPONDENTS FILED A COMPLAINT IN THE CIRCUIT COURT, ON WHICH A
TEMPORARY INJUNCTION ISSUED.  THE PETITIONERS ANSWERED.  THEY ALSO MADE
A MOTION TO DISMISS THE COMPLAINT AND THAT MOTION WAS GRANTED, WITH THE
RESULT THAT THE TEMPORARY INJUNCTION WAS DISSOLVED.  ON APPEAL, THE
APPELLATE COURT REVERSED THE ORDER DISMISSING THE COMPLAINT.  FROM THAT
ACTION AN APPEAL WAS TAKEN TO THE SUPREME COURT OF THE STATE, WHICH
AFFIRMED THE DECREE OF THE APPELLATE COURT.  ON ANALYSIS OF THE
COMPLAINT, THE SUPREME COURT FOUND THAT IT CHARGED THAT NO DISPUTES
EXISTED BETWEEN THE EMPLOYER AND HIS EMPLOYEES; THAT THE PETITIONERS
HAD BEEN INDULGING, AND WERE CONTINUING TO INDULGE, IN A SERIES OF
LIBELS AGAINST THE RESPONDENTS; WERE INDULGING AND WERE CONTINUING TO
INDULGE, IN THREATS AND ACTS OF VIOLENCE.  THE GROUNDS ON WHICH THE
COURT SUSTAINED THE COMPLAINT AS STATING A CAUSE OF ACTION IN EQUITY
ARE SUMMED UP IN THE CONCLUSION OF ITS OPINION THUS:  "A STATE OR
NATION CEASES TO BE SOVEREIGN IF IT TOLERATES WITHIN IT ANY FORCE OTHER
THAN ITS OWN, AND THAT FORCE MUST BE SUCH AS IS ESTABLISHED BY LAW,
DIRECTED BY THE COURTS, OBSERVING THE PRINCIPLES OF DUE PROCESS AND
EQUAL PROTECTION OF THE LAW.  TO WHATEVER EXTENT THESE RULES ARE
VIOLATED WE HAVE LAWLESSNESS, AND UNDER SUCH CIRCUMSTANCES A COURT OF
EQUITY WILL NOT PICK AND CHOOSE AMONG THE UNLAWFUL ACTS AND THREATS BUT
WILL ENJOIN THE WHOLE SCHEME." 

THEREAFTER THE RECORD DISCLOSES MERELY THAT THE CAUSE CAME ON FOR
FURTHER HEARING IN THE APPELLATE COURT.  WE DO NOT KNOW WHETHER THAT
HEARING WAS UPON THE BILL AND ANSWERS OR UPON THE COMPLAINT AND THE
MOTION TO DISMISS, AND THE PARTIES ARE IN GRAVE DISPUTE ON THE
SUBJECT.  WE DO KNOW FROM THE RECORD THAT THE APPELLATE COURT, AFTER
RECITING THE PREVIOUS HISTORY OF THE CASE, INCLUDING THE AFFIRMANCE OF
ITS JUDGMENT BY THE SUPREME COURT, AND A STATEMENT THAT, UNDER THE LAW
OF ILLINOIS, PEACEFUL PICKETING IS UNLAWFUL WHEN CONDUCTED BY STRANGERS
TO THE EMPLOYER, COUPLED WITH THE FURTHER STATEMENT THAT THE
RESPONDENTS WERE ENTITLED "IN THIS CASE" TO RELIEF BY INJUNCTION
AGAINST THE THREAT OF SUCH PEACEFUL PICKETING, AND THAT THE RESPONDENTS
HAD MAINTAINED THEIR COMPLAINT AND THE EQUITIES OF THE CASE WERE WITH
THEM, THE APPELLATE COURT PROCEEDED TO DECREE "IN ACCORDANCE WITH THE
MANDATE OF THE SUPREME COURT OF ILLINOIS," THAT THE PETITIONERS SHOULD
BE ENJOINED FROM PICKETING OR PATROLLING RESPONDENTS' SHOP, EXHIBITING
SIGNS AND PLACARDS TO PERSUADE PERSONS TO REFRAIN FROM ENTERING THE
PLACE OF BUSINESS AND FROM ACTS OF VIOLENCE MENACING OR COERCING
PERSONS SEEKING EMPLOYMENT FROM ENTERING RESPONDENTS' PLACE OF
BUSINESS. 

FROM THIS FINAL DECREE THE PETITIONERS SUED OUT A WRIT OF ERROR IN
THE SUPREME COURT OF ILLINOIS AND THE RESPONDENTS MOVED TO DISMISS IT
FOR THE REASON THAT THE ORDER AND OPINION ON THE PREVIOUS APPEAL
"FINALLY SETTLES ALL THE RIGHTS OF THE PARTIES."  IN THE BRIEF FILED BY
THE PETITIONERS THEY STATED:  "THE WRIT OF ERROR IS HERE PRESENTED WITH
KNOWLEDGE THAT THIS COURT HAS FULLY SETTLED ALL ISSUES OF THE CASE IN A
PRIOR REVIEW THEREOF AND THAT THE DECREE ENTERED BY THE APPELLATE COURT
IS IN COMPLIANCE WITH THE MANDATE OF THIS COURT  ...  IF THIS COURT
ADHERES TO THE POSITION IN PEOPLE V. MILITZER, 301 ILL. 284, PAGE 287;
133 N.E. 761, THAT ISSUES ONCE DECIDED ON REVIEW WILL NOT BE AGAIN
CONSIDERED ON A SECOND REVIEW, A FINAL ORDER IN THIS CASE MAY PROPERLY
DISMISS THE WRIT OF ERROR ON THE GROUND THAT ALL ISSUES OF THE CASE
HAVE BEEN SETTLED ON PRIOR APPEAL AND THAT THE DECREE ENTERED BY THE
APPELLATE COURT IS IN CONFORMITY WITH THE MANDATE ISSUED TO THE
APPELLATE COURT BY THIS COURT."    THE SUPREME COURT OF ILLINOIS,
WITHOUT OPINION, SUSTAINED THE MOTION AND DISMISSED THE WRIT OF ERROR. 
I AM UNABLE TO SAY THAT THIS ACTION WAS AN AFFIRMANCE OF ANY RECITAL IN
THE DECREE OF THE APPELLATE COURT RESPECTING THE LEGALITY OF PEACEFUL
PICKETING DISCONNECTED WITH A CONTINUED COURSE OF PUBLISHING LIBELS,
MAKING THREATS, AND USING FORCE.  IF THE FINAL DECREE WAS RIGHT ON THE
GROUND STATED BY THE SUPREME COURT IN SUSTAINING THE TEMPORARY
INJUNCTION; AND IF, UNDER THE ILLINOIS PRACTICE, THE AFFIRMANCE OF SUCH
A CORRECT DECREE BASED ON A PREVIOUS OPINION OF THE SUPREME COURT DOES
NOT AMOUNT TO THE ADOPTION OF A PREAMBLE OR RECITAL OF THE DECREE, THEN
WE OUGHT NOT TO REVERSE THE FINAL DECREE OF THE SUPREME COURT, WHICH,
ON THE FACTS STATED IN THE COMPLAINT, IS CORRECT WHEN TESTED BY THE
PRINCIPLES ENUNCIATED IN ETHYL GASOLINE CORP. V. UNITED STATES, 309
U.S. 436, 461, AND IN MILK WAGON DRIVERS UNION V. MEADOWMOOR DAIRIES,
ANTE, P. 287, BECAUSE OF A RECITAL IN THE DECREE OF THE APPELLATE
COURT. 

THE CHIEF JUSTICE JOINS IN THIS OPINION. 
..END :












R.F.C. V. MENIHAN CORP., 312 U.S. 81 


NO. 200.  ARGUED JANUARY 10, 1941.  - DECIDED FEBRUARY 3, 1941.  - 111
F.2D 940, AFFIRMED. 


1.  RULE 54(D) OF THE RULES OF CIVIL PROCEDURE PROVIDING THAT "COSTS
AGAINST THE UNITED STATES, ITS OFFICERS, AND AGENCIES SHALL BE IMPOSED
ONLY TO THE EXTENT PERMITTED BY LAW," IS MERELY DECLARATORY AND
EFFECTED NO CHANGE OF PRINCIPLE.  P. 83. 

2.  THE RECONSTRUCTION FINANCE CORPORATION, A GOVERNMENT AGENCY WHOSE
TRANSACTIONS ARE AKIN TO THOSE OF PRIVATE ENTERPRISE AND WHICH IS
EMPOWERED BY STATUTE TO SUE AND BE SUED, HAS NOT BEEN ENDOWED BY
CONGRESS WITH GOVERNMENTAL IMMUNITY FROM THE COSTS AND EQUITABLE
ALLOWANCES WHICH ARE THE NATURAL AND APPROPRIATE INCIDENTS OF
LITIGATION.  P. 83. 

HELD, THAT IN AN UNSUCCESSFUL SUIT BY THE CORPORATION TO ENJOIN
ALLEGED INFRINGEMENTS OF TRADE-MARKS THE RIGHT TO WHICH IT CLAIMS AS
PART OF PROPERTY ON WHICH IT HAS TAKEN MORTGAGES AND ASSIGNMENTS AS
SECURITY FOR A LOAN, THE CORPORATION IS LIABLE FOR COSTS AND THE
ADDITIONAL ALLOWANCE MADE BY COURTS OF EQUITY IN SUCH CASES IN
ACCORDANCE WITH SOUND EQUITY PRACTICE. 

RECONSTRUCTION FINANCE CORPORATION V. J.G. MENIHAN CORP. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 625, TO REVIEW THE AFFIRMANCE OF A DECREE WHICH
REVERSED AN ORDER OF THE DISTRICT COURT DENYING COSTS AND AN ADDITIONAL
ALLOWANCE, 29 F.SUPP.  853, IN A SUIT TO ENJOIN AN ALLEGED INFRINGEMENT
OF TRADEMARKS. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PETITIONER, RECONSTRUCTION FINANCE CORPORATION, TOOK MORTGAGES AND
ASSIGNMENTS OF REAL AND PERSONAL PROPERTY OF A CORPORATION, INCLUDING
ITS TRADE-MARKS AND TRADE NAMES, AS SECURITY FOR A LOAN.  ON A SALE BY
THE TRUSTEE IN BANKRUPTCY OF THE DEBTOR, PETITIONER PURCHASED THE
PROPERTY.  A NEW CORPORATION UNDERTOOK TO USE THE TRADE-MARKS AND
PETITIONER SOUGHT AN INJUNCTION.  DECREE WENT AGAINST PETITIONER. 
DEFENDANTS' APPLICATION FOR COSTS AND ADDITIONAL ALLOWANCE WAS DENIED. 
29 F.SUPP.  853.  THIS ORDER WAS REVERSED BY THE CIRCUIT COURT OF
APPEALS, 111 F.2D 940, AND WE GRANTED CERTIORARI BECAUSE OF A CONFLICT
OF DECISIONS.  SEE FEDERAL DEPOSIT INSURANCE CORPORATION V. CASADY,
C.C.A. 10TH, 106 F.2D 784. 

RULE 54(D) OF THE RULES OF CIVIL PROCEDURE PROVIDES THAT "COSTS
AGAINST THE UNITED STATES, ITS OFFICERS, AND AGENCIES SHALL BE IMPOSED
ONLY TO THE EXTENT PERMITTED BY LAW."  THIS PROVISION WAS MERELY
DECLARATORY AND EFFECTED NO CHANGE OF PRINCIPLE. 

THE RECONSTRUCTION FINANCE CORPORATION IS A CORPORATE AGENCY OF THE
GOVERNMENT, WHICH IS ITS SOLE STOCKHOLDER.  47 STAT. 5; 15 U.S.C. 601. 
IT IS MANAGED BY A BOARD OF DIRECTORS APPOINTED BY THE PRESIDENT BY AND
WITH THE ADVICE AND CONSENT OF THE SENATE.  THE CORPORATION HAS WIDE
POWERS AND CONDUCTS FINANCIAL OPERATIONS ON A VAST SCALE.  WHILE IT
ACTS AS A GOVERNMENTAL AGENCY IN PERFORMING ITS FUNCTIONS (SEE PITTMAN
V. HOME OWNERS' LOAN CORP., 308 U.S. 21, 32, 33), STILL ITS
TRANSACTIONS ARE AKIN TO THOSE OF PRIVATE ENTERPRISES AND THE MERE FACT
THAT IT IS AN AGENCY OF THE GOVERNMENT DOES NOT EXTEND TO IT THE
IMMUNITY OF THE SOVEREIGN.  SLOAN SHIPYARDS CORP. V. UNITED STATES
FLEET CORPORATION, 258 U.S. 549, 566, 567.  CONGRESS HAS EXPRESSLY
PROVIDED THAT THE RECONSTRUCTION FINANCE CORPORATION SHALL HAVE POWER
"TO SUE AND BE SUED, TO COMPLAIN AND TO DEFEND, IN ANY COURT OF
COMPETENT JURISDICTION, STATE OR FEDERAL."  THERE IS NOTHING IN THE
STATUTES GOVERNING ITS TRANSACTIONS WHICH SUGGESTS ANY INTENTION OF
CONGRESS THAT IN SUING AND BEING SUED THE CORPORATION SHOULD NOT BE
SUBJECT TO THE ORDINARY INCIDENT OF UNSUCCESSFUL LITIGATION IN BEING
LIABLE FOR THE COSTS WHICH MIGHT PROPERLY BE AWARDED AGAINST A PRIVATE
PARTY IN A SIMILAR CASE. 

WE HAVE HAD RECENT OCCASION TO CONSIDER THE STATUS, IN RELATION TO
SUITS, OF A REGIONAL CORPORATION CHARTERED BY THE RECONSTRUCTION
FINANCE CORPORATION AND WE HAVE SET FORTH THE GENERAL PRINCIPLES WHICH
WE THINK SHOULD GOVERN IN OUR APPROACH TO THE PARTICULAR QUESTION NOW
PRESENTED.  KEIFER V. RECONSTRUCTION FINANCE CORPORATION, 306 U.S.
381.  IN THE KEIFER CASE WE DID NOT FIND IT NECESSARY TO TRACE TO ITS
ORIGIN THE DOCTRINE OF THE EXCEPTIONAL FREEDOM OF THE UNITED STATES
FROM LEGAL RESPONSIBILITY, BUT WE OBSERVED THAT "BECAUSE THE DOCTRINE
GIVES THE GOVERNMENT A PRIVILEGED POSITION, IT HAS BEEN APPROPRIATELY
CONFINED."  HENCE, WE DECLARED THAT "THE GOVERNMENT DOES NOT BECOME THE
CONDUIT OF ITS IMMUNITY IN SUITS AGAINST ITS AGENTS OR
INSTRUMENTALITIES MERELY BECAUSE THEY DO ITS WORK."  ID., P. 388. 
RECOGNIZING THAT CONGRESS MAY ENDOW A GOVERNMENTAL CORPORATION WITH THE
GOVERNMENT'S IMMUNITY, WE FOUND THE QUESTION TO BE "HAS IT DONE SO?"
THAT IS, IMMUNITY IN THE CASE OF A GOVERNMENTAL AGENCY IS NOT
PRESUMED.  WE SOUGHT EVIDENCE THAT CONGRESS HAD INTENDED THAT ITS
CREATURE, CONSIDERING THE PURPOSE AND SCOPE OF ITS POWERS, SHOULD HAVE
THE IMMUNITY WHICH THE SOVEREIGN ITSELF ENJOYED, AND WE NOTED THE
PRACTICE OF CONGRESS AS AN INDICATION "OF THE PRESENT CLIMATE OF
OPINION" WHICH HAD BROUGHT GOVERNMENTAL IMMUNITY FROM SUIT INTO
DISFAVOR.  ACCORDINGLY, BEING UNABLE TO FIND THAT CONGRESS HAD INTENDED
IMMUNITY FROM SUIT WE DENIED IT. 

IT WAS WITH A SIMILAR APPROACH THAT WE DECIDED IN FEDERAL HOUSING
ADMINISTRATION V. BURR, 309 U.S. 242, THAT THE FEDERAL HOUSING
ADMINISTRATION WAS SUBJECT TO BE GARNISHED UNDER STATE LAW FOR MONEYS
DUE TO AN EMPLOYEE.  THERE, THE ADMINISTRATOR UNDER THE NATIONAL
HOUSING ACT WAS AUTHORIZED "TO SUE AND BE SUED IN ANY COURT OF
COMPETENT JURISDICTION, STATE OR FEDERAL."  49 STAT. 722.  STARTING
FROM THE PREMISE INDICATED IN THE KEIFER CASE THAT WAIVERS BY CONGRESS
OF GOVERNMENTAL IMMUNITY FROM SUIT SHOULD BE LIBERALLY CONSTRUED IN THE
CASE OF FEDERAL INSTRUMENTALITIES - THAT BEING IN LINE WITH THE CURRENT
DISFAVOR OF THE DOCTRINE OF GOVERNMENTAL IMMUNITY - WE CONCLUDED THAT
IN THE ABSENCE OF A CONTRARY SHOWING "IT MUST BE PRESUMED THAT WHEN
CONGRESS LAUNCHED A GOVERNMENTAL AGENCY INTO THE COMMERCIAL WORLD AND
ENDOWED IT WITH AUTHORITY TO 'SUE AND BE SUED' THAT AGENCY IS NOT LESS
AMENABLE TO JUDICIAL PROCESS THAN A PRIVATE ENTERPRISE UNDER LIKE
CIRCUMSTANCES WOULD BE."  FOLLOWING THAT REASONING, THE PRECISE POINT
OF THE DECISION WAS THAT THE WORDS "SUE AND BE SUED" NORMALLY EMBRACE
ALL CIVIL PROCESS INCIDENT TO THE COMMENCEMENT OR CONTINUANCE OF LEGAL
PROCEEDINGS AND HENCE EMBRACED GARNISHMENT AS PART OF THAT PROCESS. 

THESE DECISIONS CHART OUR COURSE.  THE RECONSTRUCTION FINANCE
CORPORATION IS EXPRESSLY AUTHORIZED TO SUE AND BE SUED.  IT HAS AVAILED
ITSELF OF THAT AUTHORITY TO BRING THE DEFENDANTS INTO COURT TO ANSWER
THE CHARGE OF TRADEMARK INFRINGEMENT.  THE DEFENDANTS HAVE SUCCESSFULLY
RESISTED THE CHARGE AND THE QUESTION IS WHETHER THEY SHOULD BE DENIED
THE USUAL INCIDENTS OF THEIR SUCCESS.  WE APPLY THE PRINCIPLE THAT
THERE IS NO PRESUMPTION THAT THE AGENT IS CLOTHED WITH SOVEREIGN
IMMUNITY.  WE LOOK AS IN THE KEIFER AND BURR CASES TO SEE WHETHER
CONGRESS HAS ENDOWED PETITIONER WITH THAT IMMUNITY AND WE FIND NO
INDICATIONS WHATEVER OF SUCH AN INTENT.  WE APPLY THE FARTHER PRINCIPLE
THAT THE WORDS "SUE AND BE SUED" NORMALLY INCLUDE THE NATURAL AND
APPROPRIATE INCIDENTS OF LEGAL PROCEEDINGS.  THE PAYMENT OF COSTS BY
THE UNSUCCESSFUL LITIGANT, AWARDED BY THE COURT IN THE PROPER EXERCISE
OF THE AUTHORITY IT POSSESSES IN SIMILAR CASES, IS MANIFESTLY SUCH AN
INCIDENT.  THE ADDITIONAL ALLOWANCE MADE BY COURTS OF EQUITY IN
ACCORDANCE WITH SOUND EQUITY PRACTICE IS LIKEWISE SUCH AN INCIDENT. 
SPRAGUE V. TICONIC BANK, 307 U.S. 161.  WE PERCEIVE NO REASON FOR
HOLDING THAT PETITIONER MAY AVAIL ITSELF OF THE JUDICIAL PROCESS IN
ACCORDANCE WITH THE AUTHORITY CONFERRED UPON IT AND ESCAPE THE USUAL
INCIDENTS OF THAT PROCESS IN CASE ITS ASSERTIONS OF RIGHT PROVE TO BE
UNFOUNDED.  ON THE CONTRARY, WE THINK THAT THE UNQUALIFIED AUTHORITY TO
SUE AND BE SUED PLACED PETITIONER UPON AN EQUAL FOOTING WITH PRIVATE
PARTIES AS TO THE USUAL INCIDENTS OF SUITS IN RELATION TO THE PAYMENT
OF COSTS AND ALLOWANCES. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :


















UNITED STATES V. GILLILAND, 312 U.S. 86 


NO. 245.  ARGUED JANUARY 10, 1941.  - DECIDED FEBRUARY 3, 1941.  - 35
F.SUPP.  181, REVERSED. 


1.  ON AN APPEAL UNDER THE CRIMINAL APPEALS ACT THE COURT IS CONCERNED
WITH THE CONSTRUCTION OF THE CRIMINAL STATUTE INVOLVED AND NOT WITH
INTERPRETATION OF THE INDICTMENT AS A PLEADING.  P. 89. 

2.  THAT PART OF SEC. 35 OF THE CRIMINAL CODE, AS AMENDED BY THE ACT
OF JUNE 18, 1934, WHICH MAKES IT A CRIME KNOWINGLY AND WILLFULLY TO
CAUSE TO BE MADE OR USED ANY FALSE AFFIDAVIT, ETC., KNOWING THE SAME TO
CONTAIN ANY FRAUDULENT STATEMENT, "IN ANY MATTER WITHIN THE
JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES," IS NOT
RESTRICTED TO CASES INVOLVING PECUNIARY OR PROPERTY LOSS TO THE UNITED
STATES.  P. 91. 

3.  THE LANGUAGE AND HISTORY OF THE AMENDING ACT SHOW THAT IT WAS
INTENDED TO PROTECT THE AUTHORIZED FUNCTIONS OF GOVERNMENTAL
DEPARTMENTS AND AGENCIES FROM THE PERVERSION WHICH MIGHT RESULT FROM
THE DECEPTIVE PRACTICES DESCRIBED.  P. 93. 

4.  SECTION 35 OF THE CRIMINAL CODE, AS AMENDED BY THE ACT OF JUNE
18, 1934, EMBRACES VERIFIED REPORTS FALSELY AND FRAUDULENTLY STATING
THE AMOUNT OF PETROLEUM PRODUCED FROM SPECIFIED WELLS OR RECEIVED FROM
OTHER PRODUCERS, WHICH REPORTS WERE FILED WITH A FEDERAL TENDER BOARD
IN PURPORTED COMPLIANCE WITH EXECUTIVE REGULATIONS PROMULGATED BY THE
SECRETARY OF THE INTERIOR, WITH THE APPROVAL OF THE PRESIDENT, UNDER
THE "HOT OIL" ACT OF FEBRUARY 22, 1935.  P. 95. 

BY THE ACT LAST MENTIONED THE TRANSPORTATION IN INTERSTATE COMMERCE
FROM ANY STATE OF "CONTRABAND" OIL PRODUCED THEREIN - I.E., OIL
PRODUCED, TRANSPORTED OR WITHDRAWN FROM STORAGE IN EXCESS OF THE
AMOUNTS PERMITTED UNDER THE LAWS AND REGULATIONS OF THE STATE - WAS
PROHIBITED, AND THE PRESIDENT WAS AUTHORIZED TO PRESCRIBE ENFORCEMENT
REGULATIONS. 

5.  SECTION 35 OF THE CRIMINAL CODE AS SO APPLIED IS NOT INVALID FOR
INDEFINITENESS.  P. 91. 

6.  THE RULE OF EJUSDEM GENERIS GIVES NO WARRANT FOR NARROWING
ALTERNATIVE PROVISIONS WHICH THE LEGISLATURE HAS ADOPTED WITH THE
PURPOSE OF AFFORDING ADDED SAFEGUARDS.  P. 93. 

7.  THE FACT THAT THE MAXIMUM PENALTY PRESCRIBED BY SEC. 35 OF THE
CRIMINAL CODE WAS GREATER THAN THAT FIXED BY THE ACT OF FEBRUARY 22,
1935, FOR VIOLATIONS OF ITS PROVISIONS, IS OF NO SIGNIFICANCE IN THE
CONSTRUCTION AND APPLICATION OF THE FORMER.  P. 95. 

8.  THE ACT OF FEBRUARY 22, 1935, SUPRA, DID NOT OPERATE TO SUPPLANT
SEC. 35 OF THE CRIMINAL CODE IN ITS APPLICATION TO AFFIDAVITS,
DOCUMENTS, ETC., RELATIVE TO THE SUBJECT OF EXCLUDING "HOT OIL" FROM
INTERSTATE COMMERCE.  P. 95. 

UNITED STATES V. GILLILAND ET AL.* 

*IN UNITED STATES V. COHN, 270 U.S. 339, FIRST PARAGRAPH OF
HEADNOTES, CHANGE "SEC.  65" TO SEC. 35.   - REPORTER. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF TEXAS. 

APPEAL, UNDER THE CRIMINAL APPEALS ACT, FROM A JUDGMENT SUSTAINING A
DEMURRER AND QUASHING TEN COUNTS OF AN INDICTMENT. 

THE GENERAL TERMS IN THE SECOND CLAUSE RELATE TO THE THINGS THAT ARE
ENUMERATED IN THE CONTEXT OF THE ACT.  THIS CLAUSE GATHERS UP THE
THINGS THAT ARE OF THE SAME CLASS AS THOSE THAT ARE ENUMERATED.  SALAS
V. UNITED STATES, 234 F. 842; UNITED STATES V. BOWMAN, 260 U.S. 92;
UNITED STATES V. WALTER, 263 U.S. 15; MOBILE TRADE CO. V. LOTT, 12
WALL.  221; GREENLEAF V. GOODRICH, 101 U.S. 278; SEWING MACHINE COS. 
CASE, 18 WALL.  553; UNITED STATES V. KEITEL, 211 U.S. 370; UNITED
STATES V. SALEN, 235 U.S. 236. 

THE SECOND CLAUSE SHOULD NOT BE LIFTED OUT OF THE STATUTE AND BE MADE
TO STAND ALONE.  THIS WOULD CREATE A MULTITUDE OF NEW OFFENSES THAT ARE
ENTIRELY DISSOCIATED AND DISTINCT FROM THE OFFENSES ENUMERATED IN THE
ACT.  SO TREATED, IT WOULD NOT BE VALID AS A PENAL STATUTE.  UNITED
STATES V. WILTBERGER, 5 WHEAT.  76; UNITED STATES V. BREWER, 139 U.S.
278; UNITED STATES V. RESNICK, 299 U.S. 207; CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U.S. 385. 

ASSUMING THAT BY THE 1934 AMENDMENT CONGRESS INTENDED TO PROHIBIT THE
PRESENTATION AND USE OF FALSE PAPERS IN CONNECTION WITH THE SHIPMENT OF
"HOT" OIL, THAT PART OF THE ACT WAS REPEALED BY IMPLICATION WHEN
CONGRESS LATER ENACTED WHAT IS KNOWN AS THE CONNALLY ACT, SEC. 715,
TIT. 15, U.S.C., WHICH IS A SELF-SUSTAINED AND ORGANIC WHOLE, COVERING
IN DETAIL THE ENTIRE SUBJECT OF THE SHIPMENT OF "HOT" OR EXCESSIVELY
PRODUCED OIL IN INTERSTATE COMMERCE.  SEE PANAMA REFINING CO. V. RYAN,
293 U.S. 388; UNITED STATES V. POWERS, 307 U.S. 214; UNITED STATES V.
YUGINOVICH, 256 U.S. 450. 

THE CONNALLY ACT IS CLEARLY INCONSISTENT WITH THE ACT UNDER WHICH THE
INDICTMENT IS BROUGHT.  UNITED STATES V. WINDHAM, 264 F. 376; STATE V.
TATE, 171 SO. 108.  MANY OTHER DECISIONS FROM OTHER JURISDICTIONS ARE
TO THE SAME EFFECT. 

OTHERWISE, WE HAVE THE SAME OFFENSE CREATED AND PUNISHED BY TWO
DISTINCT ENACTMENTS; AND AT THE ELECTION OF THE PROSECUTING OFFICER THE
OFFENDER MAY RECEIVE AS PUNISHMENT NOT MORE THAN SIX MONTHS IN JAIL AND
TWO THOUSAND DOLLARS FINE, OR TEN YEARS IN THE PENITENTIARY AND TEN
THOUSAND DOLLARS FINE.  AS TO WHICH, SEE UNITED STATES V. STEVER, 222
U.S. 157. 

IN THE CHARGE OF HAVING VIOLATED THE SECOND CLAUSE OF SEC. 35, AN
INTENT TO ACCOMPLISH A PURPOSE THAT THIS CLAUSE CONTEMPLATES AND
PROHIBITS IS AN INGREDIENT OF THE OFFENSE AND SHOULD BE AVERRED IN THE
INDICTMENT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE DISTRICT COURT SUSTAINED A DEMURRER TO TEN COUNTS OF AN
INDICTMENT AND THE GOVERNMENT APPEALS.  18 U.S.C. 682. 

THERE WERE ELEVEN COUNTS IN THE INDICTMENT, THE FIRST OF WHICH, A
CONSPIRACY COUNT, THE DISTRICT COURT FOUND GOOD.  THE OTHER COUNTS NOW
BEFORE US WERE BASED ON SEC. 35 OF THE CRIMINAL CODE.  18 U.S.C. 80. 
FN1  EIGHT OF THESE COUNTS CHARGED IN SUBSTANCE THAT DEFENDANTS HAD
WILLFULLY CAUSED TO BE MADE AND USED VERIFIED REPORTS FALSELY AND
FRAUDULENTLY STATING THE AMOUNT OF PETROLEUM PRODUCED FROM CERTAIN OIL
WELLS, AND THE OTHER TWO COUNTS MADE A SIMILAR CHARGE WITH RESPECT TO
VERIFIED REPORTS AS TO THE AMOUNT OF PETROLEUM RECEIVED FROM CERTAIN
PRODUCERS. 

THE DISTRICT COURT HELD THAT THESE SUBSTANTIVE COUNTS DID NOT STATE
AN OFFENSE UNDER SEC. 35 OF THE CRIMINAL CODE AS AMENDED BY THE ACT OF
JUNE 18, 1934.  48 STAT. 996.  THE COURT PLAINLY RESTED ITS DECISION
UPON ITS CONSTRUCTION OF THE STATUTE AND HENCE DIRECT APPEAL TO THIS
COURT IS PROPERLY BROUGHT.  WE ARE CONCERNED ONLY WITH THE CORRECTNESS
OF THIS CONSTRUCTION AND NOT WITH THE MERE INTERPRETATION OF THE
INDICTMENT AS A PLEADING.  UNITED STATES V. PATTEN, 226 U.S. 525, 535;
UNITED STATES V. BIRDSALL, 233 U.S. 223, 230; UNITED STATES V. KAPP,
302 U.S. 214, 217; UNITED STATES V. BORDEN CO., 308 U.S. 188, 195. 

"MAKE OR CAUSE TO BE MADE ANY FALSE OR FRAUDULENT STATEMENTS OR
REPRESENTATIONS," OR TO "MAKE OR USE OR CAUSE TO BE MADE OR USED ANY
FALSE BILL, RECEIPT, VOUCHER, ROLL, ACCOUNT, CLAIM, CERTIFICATE,
AFFIDAVIT, OR DEPOSITION, KNOWING THE SAME TO CONTAIN ANY FRAUDULENT OR
FICTITIOUS STATEMENT OR ENTRY, IN ANY MATTER WITHIN THE JURISDICTION OF
ANY DEPARTMENT OR AGENCY OF THE UNITED STATES."  THE REPORTS CONTAINING
THE ALLEGED FALSE AND FRAUDULENT STATEMENTS IN THIS INSTANCE WERE
CHARGED TO HAVE RELATED "TO A MATTER WITHIN THE JURISDICTION OF THE
DEPARTMENT OF THE INTERIOR, THE SECRETARY OF THE INTERIOR, AND THE
FEDERAL TENDER BOARD NO. 1, KILGORE, TEXAS." 

BY THE ACT OF FEBRUARY 22, 1935, 49 STAT. 30, 31,  FN2  THE SO-CALLED
"HOT OIL" ACT, THE TRANSPORTATION IN INTERSTATE COMMERCE FROM ANY STATE
OF "CONTRABAND OIL" PRODUCED THEREIN WAS PROHIBITED, SUCH OIL BEING
THAT "PRODUCED, TRANSPORTED, OR WITHDRAWN FROM STORAGE" IN EXCESS OF
THE AMOUNTS PERMITTED UNDER THE LAWS OF THE STATE OR REGULATIONS DULY
MADE BY ITS AGENCIES.  THE PRESIDENT WAS AUTHORIZED TO PRESCRIBE
REGULATIONS FOR THE ENFORCEMENT OF THE ACT, INCLUDING THE REQUIREMENT
OF "REPORTS, MAPS, AFFIDAVITS, AND OTHER DOCUMENTS RELATING TO THE
PRODUCTION, STORAGE, REFINING, PROCESSING, TRANSPORTING, OR HANDLING OF
PETROLEUM AND PETROLEUM PRODUCTS."  UNDER THIS AUTHORITY THE PRESIDENT
DESIGNATED THE SECRETARY OF THE INTERIOR AS HIS AGENT, AND THE LATTER
PROMULGATED REGULATIONS WHICH THE PRESIDENT APPROVED.  THERE WAS THUS
SET UP FEDERAL TENDER BOARD NO. 1, TO BE LOCATED AT KILGORE, TEXAS, FOR
THE EAST TEXAS FIELD AND MONTHLY REPORTS ON FORMS APPROVED BY THE
SECRETARY WERE REQUIRED TO BE FILED WITH THE BOARD.  FN3 

IF THE PROVISION OF SEC. 35, UNDER WHICH THE INDICTMENT IS LAID, BE
CONSTRUED ACCORDING TO ITS LITERAL AND NATURAL IMPORT, IT IS MANIFEST
THAT THE STATUTE COVERS THE OFFENSES CHARGED IN THE SUBSTANTIVE
COUNTS.  THE AFFIDAVITS AND REPORTS, AS DESCRIBED IN THE INDICTMENT,
CONTAINING STATEMENTS ALLEGED TO BE FALSE AND FRAUDULENT, WERE MADE AND
USED IN A MATTER WITHIN THE JURISDICTION OF A DEPARTMENT AND AGENCY OF
THE UNITED STATES.  NOR CAN THE STATUTE BE DEEMED TO BE INVALID BECAUSE
OF INDEFINITENESS.  THE AFFIDAVITS AND REPORTS REQUIRED HAD BEEN
SUFFICIENTLY DESCRIBED AND THE DUTY ENJOINED HAD BEEN ADEQUATELY
DEFINED.  ANY ONE PRESENTING THE REQUIRED AFFIDAVITS AND REPORTS TO THE
BOARD SET UP UNDER THE PERTINENT REGULATIONS WAS SUITABLY CHARGED WITH
NOTICE OF THE CONSEQUENCE OF KNOWINGLY AND WILLFULLY INCLUDING THEREIN
ANY FALSE AND FRAUDULENT STATEMENTS. 

DEFENDANT'S CONTENTION, WHICH THE DISTRICT COURT SUSTAINED, IS THAT
THE BROAD LANGUAGE OF THE STATUTORY PROVISION HERE INVOLVED SHOULD BE
RESTRICTED BY CONSTRUCTION SO AS TO APPLY ONLY TO MATTERS OF A NATURE
SIMILAR TO THOSE WITH WHICH OTHER PROVISIONS OF SEC. 35 DEAL, "SUCH AS
CLAIMS AGAINST, RIGHTS TO, OR CONTROVERSIES ABOUT FUNDS INVOLVED IN
'OPERATIONS OF THE GOVERNMENT,'" THAT IS, TO MATTERS IN WHICH THE
GOVERNMENT HAS SOME FINANCIAL OR PROPRIETARY INTEREST.  THIS CONTENTION
IS SOUGHT TO BE SUPPORTED BY THE DOCTRINE OF EJUSDEM GENERIS AND THE
CONSTRUCTION GIVEN TO SEC. 35 PRIOR TO THE AMENDMENT OF 1934, AND BY
REFERENCE TO THE INCONGRUITY OF THE PENALTY PRESCRIBED FOR VIOLATION OF
SEC. 35 AS CONTRASTED WITH THE PENALTY PRESCRIBED BY THE ACT OF
FEBRUARY 22, 1935, TO THE ENFORCEMENT OF WHICH THE REQUIREMENTS IN
QUESTION WERE DIRECTED.  DEFENDANT ALSO PRESENTS THE CONTENTION, UPON
WHICH THE DISTRICT COURT DID NOT PASS, THAT THE ACT OF FEBRUARY 22,
1935, WAS INTENDED TO COVER THE ENTIRE SUBJECT OF THE EXCLUSION OF "HOT
OIL" FROM INTERSTATE COMMERCE AND CONSEQUENTLY OPERATED AS A REPEAL OF
ALL OTHER PROVISIONS DEALING WITH THAT MATTER. 

BEFORE THE AMENDMENT OF 1934, SEC. 35, AFTER REFERRING TO THE
PRESENTATION OF CLAIMS AGAINST THE GOVERNMENT WHICH WERE KNOWN TO BE
FALSE OR FRAUDULENT, PROVIDED:  "OR WHOEVER, FOR THE PURPOSE OF
OBTAINING OR AIDING TO OBTAIN THE PAYMENT OR APPROVAL OF SUCH CLAIM, OR
FOR THE PURPOSE AND WITH THE INTENT OF CHEATING AND SWINDLING OR
DEFRAUDING THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT
THEREOF, OR ANY CORPORATION IN WHICH THE UNITED STATES OF AMERICA IS A
STOCKHOLDER, SHALL KNOWINGLY AND WILLFULLY FALSIFY OR CONCEAL OR COVER
UP BY ANY TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKE OR CAUSE TO
BE MADE ANY FALSE OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKE
OR USE OR CAUSE TO BE MADE OR USED ANY FALSE BILL, RECEIPT, VOUCHER,
ROLL, ACCOUNT, CLAIM, CERTIFICATE, AFFIDAVIT, OR DEPOSITION, KNOWING
THE SAME TO CONTAIN ANY FRAUDULENT OR FICTITIOUS STATEMENT OR ENTRY;
...  SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN
TEN YEARS, OR BOTH."  FN4 

DISTINGUISHING THAT PROVISION FROM SEC. 37, THE CONSPIRACY SECTION OF
THE CRIMINAL CODE WHICH BY ITS TERMS EXTENDED BROADLY TO EVERY
CONSPIRACY "TO DEFRAUD THE UNITED STATES IN ANY MANNER OR FOR ANY
PURPOSE,"  FN5  THIS COURT HELD THAT SEC. 35 WHICH USED THE WORD
"DEFRAUDING" IN CONNECTION WITH "CHEATING AND SWINDLING" SHOULD BE
CONSTRUED "AS RELATING TO THE FRAUDULENT CAUSING OF PECUNIARY OR
PROPERTY LOSS" TO THE GOVERNMENT.  AND THAT MEANING WAS DEEMED TO BE
EMPHASIZED BY THE CONTEXT FOUND IN OTHER PROVISIONS OF SEC. 35.  UNITED
STATES V. COHN, 270 U.S. 339, 346, 347. 

THE ACT OF JUNE 18, 1934,  FN6  AMENDED SEC. 35 SO THAT IN PLACE OF
THE PORTION QUOTED ABOVE THERE WERE SUBSTITUTED THESE WORDS:  "OR
WHOEVER SHALL KNOWINGLY AND WILLFULLY FALSIFY OR CONCEAL OR COVER UP BY
ANY TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKE OR CAUSE TO BE
MADE ANY FALSE OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKE OR
USE OR CAUSE TO BE MADE OR USED ANY FALSE BILL, RECEIPT, VOUCHER, ROLL,
ACCOUNT, CLAIM, CERTIFICATE, AFFIDAVIT, OR DEPOSITION, KNOWING THE SAME
TO CONTAIN ANY FRAUDULENT OR FICTITIOUS STATEMENT OR ENTRY, 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" ETC. 

THE AMENDMENT ELIMINATED THE WORDS "CHEATING AND SWINDLING" AND
BROADENED THE PROVISION SO AS TO LEAVE NO ADEQUATE BASIS FOR THE
LIMITED CONSTRUCTION WHICH HAD PREVIOUSLY OBTAINED.  THE STATUTE WAS
MADE TO EMBRACE FALSE AND FRAUDULENT STATEMENTS OR REPRESENTATIONS
WHERE THESE WERE KNOWINGLY AND WILLFULLY USED IN DOCUMENTS OR
AFFIDAVITS "IN ANY MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR
AGENCY OF THE UNITED STATES."  IN THIS, THERE WAS NO RESTRICTION TO
CASES INVOLVING PECUNIARY OR PROPERTY LOSS TO THE GOVERNMENT.  THE
AMENDMENT INDICATED THE CONGRESSIONAL INTENT TO PROTECT THE AUTHORIZED
FUNCTIONS OF GOVERNMENTAL DEPARTMENTS AND AGENCIES FROM THE PERVERSION
WHICH MIGHT RESULT FROM THE DECEPTIVE PRACTICES DESCRIBED.  WE SEE NO
REASON WHY THIS APPARENT INTENTION SHOULD BE FRUSTRATED BY
CONSTRUCTION. 

THE RULE OF EJUSDEM GENERIS IS A FAMILIAR AND USEFUL ONE IN
INTERPRETING WORDS BY THE ASSOCIATION IN WHICH THEY ARE FOUND, BUT IT
GIVES NO WARRANT FOR NARROWING ALTERNATIVE PROVISIONS WHICH THE
LEGISLATURE HAS ADOPTED WITH THE PURPOSE OF AFFORDING ADDED
SAFEGUARDS.  "THE RULE OF 'EJUSDEM GENERIS' IS APPLIED AS AN AID IN
ASCERTAINING THE INTENTION OF THE LEGISLATURE, NOT TO SUBVERT IT WHEN
ASCERTAINED."  TEXAS V. UNITED STATES, 292 U.S. 522, 534. 

IF THE LANGUAGE OF THE AMENDED SECTION COULD BE DEEMED AMBIGUOUS, THE
LEGISLATIVE HISTORY OF THE AMENDMENT WOULD DISPEL ANY DOUBT AS TO THE
CONGRESSIONAL PURPOSE.  LEGISLATION HAD BEEN SOUGHT BY THE SECRETARY OF
THE INTERIOR TO AID THE ENFORCEMENT OF LAWS RELATING TO THE FUNCTIONS
OF THE DEPARTMENT OF THE INTERIOR AND, IN PARTICULAR, TO THE
ENFORCEMENT OF REGULATIONS UNDER SEC. 9(C) OF THE NATIONAL INDUSTRIAL
RECOVERY ACT OF 1933  FN7  WITH RESPECT TO THE TRANSPORTATION OF "HOT
OIL."  THE SECRETARY'S EFFORT WAS DUE, AS HE STATED, TO THE LACK OF A
LAW UNDER WHICH PROSECUTIONS MIGHT BE HAD "FOR THE PRESENTATION OF
FALSE PAPERS."  FN8  THE BILL WHICH WAS PASSED BY CONGRESS, HOWEVER,
WAS AMENDED IN ITS FINAL STAGES SO AS TO REQUIRE "INTENT TO DEFRAUD THE
UNITED STATES."  FN9  THIS BILL WAS RETURNED BY THE PRESIDENT WITHOUT
HIS APPROVAL FOR THE REASON THAT THE OFFENSE AS DEFINED WAS COVERED BY
EXISTING LAW WHICH PROVIDED FOR MORE SEVERE PUNISHMENT THAN THAT
PROPOSED BY THE BILL.  FN10  ANOTHER MEASURE WAS THEN PROPOSED BY THE
SECRETARY OF THE INTERIOR WHICH WOULD OBVIATE THESE OBJECTIONS AND
ACCOMPLISH THE PURPOSE OF REACHING THE PRESENTATION OF FALSE PAPERS IN
RELATION TO "HOT OIL."  A BILL WAS THEN PASSED AND APPROVED WHICH
INCLUDED, WITH OTHER AMENDMENTS OF SEC. 35 THE PROVISION NOW BEFORE US,
OMITTING THE LIMITING WORDS WHICH HAD BEEN DEEMED TO MAKE THE FORMER
PROVISION APPLICABLE ONLY TO CASES WHERE PECUNIARY OR PROPERTY LOSS TO
THE GOVERNMENT HAD BEEN CAUSED.  FN11  THE REPORT OF THE JUDICIARY
COMMITTEE OF THE SENATE STATED THAT THE AMENDMENT IN QUESTION HAD BEEN
PROPOSED BY THE DEPARTMENT OF THE INTERIOR WITH THE PURPOSE "OF
REACHING A LARGE NUMBER OF CASES INVOLVING THE SHIPMENT OF 'HOT' OIL,
WHERE FALSE PAPERS ARE PRESENTED IN CONNECTION THEREWITH."  N12    THE
FACT THAT THE SECRETARY OF THE INTERIOR WAS THEN SEEKING AID IN THE
ENFORCEMENT OF SEC. 9(C) OF THE NATIONAL INDUSTRIAL RECOVERY ACT, WHICH
THIS COURT LATER FOUND TO BE INVALID (PANAMA REFINING CO. V. RYAN, 293
U.S. 388), IN NO WAY AFFECTS THE PRESENT APPLICATION OF THE STATUTE. 
ITS PROVISIONS WERE NOT LIMITED TO THE ENFORCEMENT OF SEC. 9(C) OF THE
NATIONAL INDUSTRIAL RECOVERY ACT BUT WERE ENACTED WITH APPROPRIATE
BREADTH SO THAT THEY AT ONCE APPLIED TO THE PRESENTATION OF AFFIDAVITS,
REPORTS, ETC., REQUIRED BY THE SUBSEQUENT ACT OF FEBRUARY 22, 1935, AND
THE REGULATIONS DULY PRESCRIBED THEREUNDER.  IN THE LIGHT OF THE TEXT
OF THE ACT OF 1934, AMENDING SEC. 35, AND ITS LEGISLATIVE HISTORY, IT
IS ALSO CLEAR THAT THE FACT THAT THE PENALTY PRESCRIBED BY SEC. 35 WAS
GREATER THAN THAT FIXED BY THE ACT OF FEBRUARY 22, 1935, HAS NO
SIGNIFICANCE IN CONNECTION WITH THE CONSTRUCTION AND APPLICATION OF THE
FORMER.  THE MATTER OF PENALTIES LAY WITHIN THE DISCRETION OF
CONGRESS.  SECTION 35 COVERED A VARIETY OF OFFENSES AND THE PENALTIES
PRESCRIBED WERE MAXIMUM PENALTIES WHICH GAVE A RANGE FOR JUDICIAL
SENTENCES ACCORDING TO THE CIRCUMSTANCES AND GRAVITY OF PARTICULAR
VIOLATIONS. 

SIMILARLY LACKING IN MERIT IS THE CONTENTION THAT THE ACT OF FEBRUARY
22, 1935, OPERATED TO REPEAL SEC. 35 AS AMENDED IN 1934, SO FAR AS THE
LATTER APPLIED TO AFFIDAVITS, DOCUMENTS, ETC., PRESENTED IN RELATION TO
"HOT OIL."  THERE WAS NO EXPRESS REPEAL AND THERE WAS NO REPUGNANCY IN
THE SUBJECT MATTER OF THE TWO STATUTES WHICH WOULD JUSTIFY AN
IMPLICATION OF REPEAL.  THE ACT OF 1934, WITH ITS PROVISION AS TO FALSE
AND FRAUDULENT PAPERS, HAS ITS PLACE AS A FITTING COMPLEMENT TO THE ACT
OF 1935 AS WELL AS TO OTHER STATUTES UNDER WHICH, IN CONNECTION WITH
THE AUTHORIZED ACTION OF GOVERNMENTAL DEPARTMENTS OR AGENCIES, THE
PRESENTATION OF AFFIDAVITS, DOCUMENTS, ETC., IS REQUIRED.  THERE IS NO
INDICATION OF AN INTENT TO MAKE THE ACT OF 1935 A SUBSTITUTE FOR ANY
PART OF THE PROVISION IN SEC. 35.  SEE POSADAS V. NATIONAL CITY BANK,
296 U.S. 497, 503, 504; UNITED STATES V. BORDEN COMPANY, 308 U.S. 188,
198, 199. 

THE JUDGMENT SUSTAINING THE DEMURRER TO COUNTS 2 TO 11, INCLUSIVE, IS
REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  SEE ACT OF APRIL 4, 1938, C. 69, 52 STAT. 197. 

FN2  15 U.S.C. 715-715D. 

FN3  EXECUTIVE ORDERS NO. 6979, ISSUED FEBRUARY 28, 1935; NO. 6980-B,
REGULATION XIV, APPROVED MARCH 1, 1935; NO. 6980-C, APPROVED MARCH 1,
1935. 

FN4  40 STAT. 1015. 

FN5  SEE HAAS V. HENKEL, 216 U.S. 462, 479; HAMMERSCHMIDT V. UNITED
STATES, 265 U.S. 182, 188. 

FN6  48 STAT. 996. 

FN7  48 STAT. 195, 200. 

FN8  SEE LETTER OF THE SECRETARY OF THE INTERIOR TO THE CHAIRMAN OF
THE JUDICIARY COMMITTEE OF THE SENATE DATED FEBRUARY 7, 1934.  S. REP.
NO. 288, 73D CONG., 2D SESS.; 78 CONG. REC., PT. 3, P. 2859.  SEE,
ALSO, H. REP. NO. 829, 73D CONG., 2D SESS. 

FN9  78 CONG. REC., PT. 4, PP. 3724, 3725; PT. 6, P. 5746. 

FN10  78 CONG. REC., PT. 6, P. 6778. 

FN11  78 CONG. REC., PT. 10, PP. 11270, 11271; PT. 11, P. 11513.  ACT
OF JUNE 18, 1934, 48 STAT. 996. 

FN12  S. REP. NO. 1202, 73D CONG., 2D SESS. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :








RAWLINGS V. RAY, 312 U.S. 96 


NO. 327.  ARGUED JANUARY 17, 1941.  - DECIDED FEBRUARY 3, 1941.  - 111
F.2D 695, REVERSED. 


1.  THE STATE STATUTE OF LIMITATIONS APPLIES IN AN ACTION BY THE
RECEIVER OF AN INSOLVENT NATIONAL BANK AGAINST A STOCKHOLDER TO COLLECT
A COMPTROLLER'S ASSESSMENT.  P. 97. 

2.  IN SUCH AN ACTION THE QUESTION WHEN THE CAUSE OF ACTION ACCRUED,
AS A COMPLETE AND PRESENT CAUSE OF ACTION, IS A FEDERAL QUESTION
TURNING UPON THE CONSTRUCTION OF THE ASSESSMENT AND THE AUTHORITY OF
THE COMPTROLLER TO MAKE IT UNDER APPLICABLE FEDERAL LEGISLATION.  P.
98. 

3.  IN MAKING A STOCKHOLDERS' ASSESSMENT, THE COMPTROLLER IS
AUTHORIZED TO FIX A LATER DATE FOR ITS PAYMENT.  P. 99. 

4.  IN AN ACTION BY THE RECEIVER OF AN INSOLVENT NATIONAL BANK IN
ARKANSAS TO COLLECT A COMPTROLLER'S ASSESSMENT, HELD THAT THE THREE
YEARS STATUTE OF LIMITATIONS OF ARKANSAS BEGAN TO RUN NOT ON THE DAY
WHEN THE ASSESSMENT WAS MADE BUT ON A LATER DAY ON OR BEFORE WHICH IT
WAS EXPRESSLY MADE PAYABLE.  P. 98. 

RAWLINGS, RECEIVER, V. RAY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 311 U.S. 627, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
SUSTAINING A PLEA OF THE STATUTE OF LIMITATIONS IN A SUIT BY THE
RECEIVER OF A NATIONAL BANK TO COLLECT AN ASSESSMENT FROM A
STOCKHOLDER. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PETITIONER IS THE RECEIVER OF THE LEE COUNTY NATIONAL BANK OF
MARIANNA, ARKANSAS, WHICH IN 1933 WAS DECLARED BY THE COMPTROLLER OF
THE CURRENCY TO BE INSOLVENT.  ON NOVEMBER 6, 1935, THE COMPTROLLER
ASSESSED ITS SHAREHOLDERS FIFTY PER CENTUM OF THE PAR VALUE OF THEIR
SHARES.  THE ASSESSMENT WAS REQUIRED TO BE PAID ON OR BEFORE DECEMBER
13, 1935, AND THE RECEIVER GAVE NOTICE ACCORDINGLY.  AS RESPONDENT
FAILED TO PAY, THE RECEIVER BROUGHT SUIT ON DECEMBER 7, 1938, IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF
ARKANSAS TO RECOVER THE AMOUNT ASSESSED.  RESPONDENT PLEADED THE
ARKANSAS STATUTE OF LIMITATIONS WHICH PROVIDES THAT SUCH AN ACTION MUST
BE COMMENCED "WITHIN THREE YEARS AFTER THE CAUSE OF ACTION SHALL
ACCRUE."  POPE'S DIGEST OF STATUTES OF ARKANSAS (1937), SEC. 8928.  THE
DISTRICT COURT SUSTAINED THE PLEA AND ITS JUDGMENT WAS AFFIRMED BY THE
CIRCUIT COURT OF APPEALS.  111 F.2D 695.  BECAUSE OF A CONFLICT OF
DECISIONS WE GRANTED CERTIORARI.  SEE STRASBURGER V. SCHRAM, CT. APP.
D.C., 93 F.2D 246; REICH V. VAN DYKE, C.C.A. 3D, 107 F.2D 682; HAIGHT
V. FIRST TRUST & DEPOSIT CO., C.C.A.2D, 112 F.2D 572; MACPHERSON V.
SCHRAM, C.C.A.5TH, 112 F.2D 674. 

THE STATE STATUTE OF LIMITATIONS IS APPLICABLE.  MCDONALD V.
THOMPSON, 184 U.S. 71, 72; MCCLAINE V. RANKIN, 197 U.S. 154, 158.  THE
QUESTION IS WHETHER THE STATUTE BEGAN TO RUN ON THE DATE OF THE
ASSESSMENT, AS HELD BY THE COURT BELOW, OR ON THE DATE FIXED FOR
PAYMENT.  THE WORDS "AFTER THE CAUSE OF ACTION SHALL ACCRUE" IN THE
ARKANSAS STATUTE HAVE THEIR USUAL MEANING AND REFER TO "A COMPLETE AND
PRESENT CAUSE OF ACTION."  HOLLOWAY V. MORRIS, 182 ARK. 1096, 1099; 34
S.W.2D 750, 752. 

THE QUESTION AS TO THE TIME WHEN THERE WAS A COMPLETE AND PRESENT
CAUSE OF ACTION SO THAT THE RECEIVER COULD ENFORCE BY SUIT THE
LIABILITY IMPOSED BY THE COMPTROLLER'S ASSESSMENT IS A FEDERAL QUESTION
AND TURNS UPON THE CONSTRUCTION OF THE ASSESSMENT AND THE AUTHORITY OF
THE COMPTROLLER TO MAKE IT UNDER THE APPLICABLE FEDERAL LEGISLATION. 

WHILE THE ASSESSMENT WAS MADE ON NOVEMBER 6, 1935, IT WAS EXPRESSLY
MADE PAYABLE ON OR BEFORE DECEMBER 13, 1935.  RESPONDENT WAS ALLOWED
UNTIL THAT DATE TO PAY AND PRIOR THERETO SUIT COULD NOT BE MAINTAINED
AGAINST HIM.  HENCE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN
UNTIL DECEMBER 13, 1935, AND THE SUIT WAS IN TIME. 

THE CASE OF PUFAHL V. ESTATE OF PARKS, 299 U.S. 217(UPON WHICH THE
COURT BELOW RELIED) IS NOT TO THE CONTRARY.  THE QUESTION NOW PRESENTED
WAS NOT THERE INVOLVED.  IN THAT CASE, AFTER THE DEATH OF A STOCKHOLDER
OF A NATIONAL BANK, AND AFTER THE EXPIRATION OF ONE YEAR FROM THE DATE
OF LETTERS TESTAMENTARY, THE COMPTROLLER OF THE CURRENCY MADE AN
ASSESSMENT UPON THE DECEDENT'S ESTATE.  THE STATE COURT, APPLYING A
STATE STATUTE, HAD DISALLOWED THE RECEIVER'S CLAIM UPON THE ASSESSMENT
AS AGAINST UNDISTRIBUTED ASSETS IN THE HANDS OF THE EXECUTORS, WHICH
HAD BEEN INVENTORIED WITHIN A YEAR FROM THE DATE OF LETTERS
TESTAMENTARY, BECAUSE THE CLAIM DID NOT ACCRUE AND WAS NOT PRESENTED TO
THE PROBATE COURT WITHIN THAT PERIOD, BUT ALLOWED THE CLAIM AS TO
ASSETS NOT INVENTORIED WITHIN THE YEAR.  WE AFFIRMED THE JUDGMENT.  WE
SAID THAT WHERE AN ASSESSMENT HAD BEEN MADE IN THE DECEDENT'S LIFETIME
AN ACCRUED AND PROVABLE DEBT EXISTED AGAINST HIS ESTATE, AND THAT IF
THE ASSESSMENT WERE MADE AFTER HIS DEATH A CLAIM AGAINST THE FUNDS AND
ASSETS OF THE ESTATE ACCRUED AS OF THE DATE OF THE ASSESSMENT. 
FURTHER, THAT THE CLAIM OF THE RECEIVER, ALTHOUGH BASED UPON A FEDERAL
STATUTE, COULD BE ENFORCED ONLY IN CONFORMITY WITH THE LAW OF THE FORUM
GOVERNING THE RECOVERY OF DEBTS OF LIKE NATURE (ID., PP. 224, 225) AND
THAT THE NON-DISCRIMINATORY LEGISLATION OF ILLINOIS WHERE THE SUIT WAS
BROUGHT WAS CONTROLLING.  WE OBSERVED THAT THE CONTINGENT OBLIGATION OF
A STOCKHOLDER TO PAY AN ASSESSMENT WAS RENDERED ABSOLUTE BY THE
COMPTROLLER'S ACTION IN ORDERING ONE AND THAT FROM THE MOMENT OF THE
ORDER OF ASSESSMENT THE RECEIVER HAD A CLAIM WHICH WOULD SUPPORT AN
ACTION AT COMMON LAW AGAINST A LIVING STOCKHOLDER OR THE EXECUTOR OF A
DECEASED STOCKHOLDER; THAT IF THE ASSESSMENT WERE MADE AFTER THE ESTATE
HAD BEEN DISTRIBUTED, THE RECEIVER COULD RECOVER FROM THE DISTRIBUTEES
OR HEIRS IF AND UP TO THE EXTENT THEY WERE LIABLE UNDER THE APPLICABLE
LOCAL LAW.  ID., PP. 222, 223. 

IN ALL THIS WE WERE NOT CONSIDERING OR DECIDING THE QUESTION OF THE
APPLICATION OF A STATUTE OF LIMITATIONS TO A SUIT AGAINST A STOCKHOLDER
UPON AN ASSESSMENT MADE BY THE COMPTROLLER WHERE PAYMENT WAS NOT
REQUIRED BEFORE A SPECIFIED DATE, PRIOR TO WHICH NO SUIT COULD BE
MAINTAINED. 

WE FIND NO GROUND FOR QUESTIONING THE AUTHORITY OF THE COMPTROLLER IN
MAKING AN ASSESSMENT TO FIX A LATER DATE FOR ITS PAYMENT.  THE FEDERAL
LEGISLATION DOES NOT IMPOSE OR SUGGEST ANY SUCH LIMITATION UPON THE
EXERCISE OF HIS POWER.  12 U.S.C. 63, 64, 191, 192.  WHAT WAS DONE IN
THE INSTANT CASE APPEARS TO BE IN ACCORD WITH A PRACTICE OF LONG
STANDING. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  REVERSED. 
..END :


















UNITED STATES V. DARBY, 312 U.S. 100 


NO. 82.  ARGUED DECEMBER 19, 20, 1940.  - DECIDED FEBRUARY 3, 1941.  -
32 F.SUPP.  734, REVERSED. 


1.  THE FAIR LABOR STANDARDS ACT OF 1938 PROVIDES FOR FIXING MINIMUM
WAGES AND MAXIMUM HOURS FOR EMPLOYEES ENGAGED IN THE PRODUCTION OF
GOODS FOR INTERSTATE COMMERCE, WITH INCREASED COMPENSATION FOR
OVERTIME, AND FORBIDS, UNDER PAIN OF FINE AND IMPRISONMENT:  (1)
VIOLATION BY AN EMPLOYER OF SUCH WAGE AND HOUR PROVISIONS; (2) SHIPMENT
BY HIM IN INTERSTATE COMMERCE OF ANY GOODS IN THE PRODUCTION OF WHICH
ANY EMPLOYEE WAS EMPLOYED IN VIOLATION OF SUCH PROVISIONS; AND (3)
FAILURE OF THE EMPLOYER TO KEEP SUCH RECORDS OF HIS EMPLOYEES AND OF
THEIR WAGES AND HOURS, AS SHALL BE PRESCRIBED BY ADMINISTRATIVE
REGULATION OR ORDER.  HELD WITHIN THE COMMERCE POWER AND CONSISTENT
WITH THE FIFTH AND TENTH AMENDMENTS.  P. 111. 

2.  WHILE MANUFACTURE IS NOT OF ITSELF INTERSTATE COMMERCE, THE
SHIPMENT OF MANUFACTURED GOODS INTERSTATE IS SUCH COMMERCE AND THE
PROHIBITION OF SUCH SHIPMENT BY CONGRESS IS A REGULATION OF INTERSTATE
COMMERCE.  P. 113. 

3.  CONGRESS, FOLLOWING ITS OWN CONCEPTION OF PUBLIC POLICY
CONCERNING THE RESTRICTIONS WHICH MAY APPROPRIATELY BE IMPOSED ON
INTERSTATE COMMERCE, IS FREE TO EXCLUDE FROM IT ARTICLES WHOSE USE IN
THE STATE FOR WHICH THEY ARE DESTINED IT MAY CONCEIVE TO BE INJURIOUS
TO THE PUBLIC HEALTH, MORALS OR WELFARE, EVEN THOUGH THE STATE HAS NOT
SOUGHT TO REGULATE THEIR USE.  P. 114. 

4.  SUCH REGULATION IS NOT A FORBIDDEN INVASION OF STATE POWER MERELY
BECAUSE EITHER ITS MOTIVE OR ITS CONSEQUENCE IS TO RESTRICT THE USE OF
ARTICLES OF COMMERCE WITHIN THE STATES OF DESTINATION; AND IS VALID
UNLESS PROHIBITED BY OTHER CONSTITUTIONAL PROVISIONS.  P. 114. 

5.  THE MOTIVE AND PURPOSE OF THE PRESENT REGULATION ARE PLAINLY TO
MAKE EFFECTIVE THE CONGRESSIONAL CONCEPTION OF PUBLIC POLICY THAT
INTERSTATE COMMERCE SHOULD NOT BE MADE THE INSTRUMENT OF COMPETITION IN
THE DISTRIBUTION OF GOODS PRODUCED UNDER SUBSTANDARD LABOR CONDITIONS,
WHICH COMPETITION IS INJURIOUS TO THE COMMERCE AND TO THE STATES FROM
AND TO WHICH IT FLOWS.  P. 115. 

6.  THE MOTIVE AND PURPOSE OF A REGULATION OF INTERSTATE COMMERCE ARE
MATTERS FOR THE LEGISLATIVE JUDGMENT UPON THE EXERCISE OF WHICH THE
CONSTITUTION PLACES NO RESTRICTION AND OVER WHICH THE COURTS ARE GIVEN
NO CONTROL.  P. 115. 

7.  IN PROHIBITING INTERSTATE SHIPMENT OF GOODS PRODUCED UNDER THE
FORBIDDEN SUBSTANDARD LABOR CONDITIONS THE ACT IS WITHIN THE AUTHORITY
OF CONGRESS, IF NO CONSTITUTIONAL PROVISION FORBIDS.  P. 115. 

8.  HAMMER V. DAGENHART, 247 U.S. 251, OVERRULED; CARTER V. CARTER
COAL CO., 298 U.S. 238, DECLARED TO HAVE BEEN LIMITED.  PP. 115, 123. 

9.  THE "PRODUCTION FOR INTERSTATE COMMERCE" INTENDED BY THE ACT
INCLUDES, AT LEAST, PRODUCTION OF GOODS, WHICH, AT THE TIME OF
PRODUCTION, THE EMPLOYER, ACCORDING TO THE NORMAL COURSE OF HIS
BUSINESS, INTENDS OR EXPECTS TO MOVE IN INTERSTATE COMMERCE ALTHOUGH,
THROUGH THE EXIGENCIES OF THE BUSINESS, ALL OF THE GOODS MAY NOT
THEREAFTER ACTUALLY ENTER INTERSTATE COMMERCE.  P. 117. 

10. THE POWER OF CONGRESS OVER INTERSTATE COMMERCE EXTENDS TO THOSE
INTRASTATE ACTIVITIES WHICH SO AFFECT INTERSTATE COMMERCE OR THE
EXERCISE OF THE POWER OF CONGRESS OVER IT AS TO MAKE THEIR REGULATION
AN APPROPRIATE MEANS TO THE ATTAINMENT OF A LEGITIMATE END,  - THE
EXERCISE OF THE GRANTED POWER OF CONGRESS TO REGULATE INTERSTATE
COMMERCE.  P. 118. 

11.  CONGRESS, HAVING BY THE PRESENT ACT ADOPTED THE POLICY OF
EXCLUDING FROM INTERSTATE COMMERCE ALL GOODS PRODUCED FOR THAT 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.  P. 121. 

12.  INDEPENDENTLY OF THE PROHIBITION OF SHIPMENT OR TRANSPORTATION
OF THE PROSCRIBED GOODS, THE PROVISION OF THE ACT FOR THE SUPPRESSION
OF THEIR PRODUCTION FOR INTERSTATE COMMERCE IS WITHIN THE COMMERCE
POWER.  P. 122. 

13.  THE TENTH AMENDMENT IS NOT A LIMITATION UPON THE AUTHORITY OF
THE NATIONAL GOVERNMENT TO RESORT TO ALL MEANS FOR THE EXERCISE OF A
GRANTED POWER WHICH ARE APPROPRIATE AND PLAINLY ADAPTED TO THE
PERMITTED END.  P. 123. 

14.  THE REQUIREMENTS OF THE ACT AS TO THE KEEPING OF RECORDS ARE
VALID AS INCIDENTAL TO THE WAGE AND HOUR REQUIREMENTS.  P. 124. 

15.  THE WAGE AND HOUR PROVISIONS OF THE ACT DO NOT VIOLATE THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT.  P. 125. 

16.  IN ITS CRIMINAL ASPECT, THE ACT IS SUFFICIENTLY DEFINITE TO MEET
CONSTITUTIONAL DEMANDS.  P. 125. 

UNITED STATES V. DARBY. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF GEORGIA. 

APPEAL, UNDER THE CRIMINAL APPEALS ACT, FROM A JUDGMENT QUASHING AN
INDICTMENT. 

NO STATE, ACTING ALONE, COULD REQUIRE LABOR STANDARDS SUBSTANTIALLY
HIGHER THAN THOSE OBTAINING IN OTHER STATES WHOSE PRODUCERS AND
MANUFACTURERS COMPETED IN THE INTERSTATE MARKET.  EMPLOYERS WITH LOWER
LABOR STANDARDS POSSESS AN UNFAIR ADVANTAGE IN INTERSTATE COMPETITION,
AND ONLY THE NATIONAL GOVERNMENT CAN DEAL WITH THE PROBLEM. 

THE CONGRESSIONAL COMMITTEES MADE SPECIFIC FINDINGS WHICH WERE
EMBODIED IN THE ACT AS THE CONGRESSIONAL JUDGMENT THAT LOW LABOR
STANDARDS WERE DETRIMENTAL TO THE HEALTH AND EFFICIENCY OF WORKERS,
CAUSED THE CHANNELS OF INTERSTATE COMMERCE TO SPREAD THOSE LABOR
CONDITIONS AMONG THE STATES, BURDENED INTERSTATE COMMERCE, LED TO LABOR
DISPUTES OBSTRUCTING THAT COMMERCE, AND CONSTITUTED AN UNFAIR METHOD OF
COMPETITION.  THESE FINDINGS ACCORD WITH FACTS OF WHICH THIS COURT HAS
ALREADY TAKEN JUDICIAL NOTICE, AND ARE CONCLUSIVE. 

THE INCAPACITY OF THE INDIVIDUAL STATES TO REMEDY THE SERIOUS EVILS
RESULTING FROM LONG HOURS AND LOW WAGES IN INTERSTATE INDUSTRY RESTS IN
PART UPON THE COMMERCE CLAUSE ITSELF, WHICH PREVENTS THE STATES FROM
FORBIDDING IMPORTATION OF GOODS PRODUCED UNDER SUBSTANDARD CONDITIONS. 
BALDWIN V. SEELIG, 294 U.S. 511.  AND, EVEN IF A STATE COULD
CONSTITUTIONALLY PROTECT ITS INDUSTRIES WITHIN ITS OWN BORDERS, IT
COULD NOT SAFEGUARD THEM AGAINST THE LOSS OF THEIR MARKETS IN OTHER
STATES.  THE COMMERCE CLAUSE WAS DESIGNED TO EMPOWER THE NATIONAL
GOVERNMENT TO DEAL WITH SUCH PROBLEMS. 

THE PHRASE "INTERSTATE COMMERCE" HAD AT THE TIME OF THE ADOPTION OF
THE CONSTITUTION A MEANING EQUIVALENT TO "THE INTERRELATED BUSINESS
TRANSACTIONS OF THE SEVERAL STATES."  LEXICOGRAPHERS, ECONOMISTS, AND
AUTHORS USED THE TERM "COMMERCE" TO REFER NOT ONLY TO THE NARROW
CONCEPT OF SALE OR EXCHANGE, BUT TO INCLUDE THE ENTIRE MONEYED ECONOMY,
EMBRACING PRODUCTION AND MANUFACTURE AS WELL AS EXCHANGE. 

THE DECISIONS OF THIS COURT, FROM THE BEGINNING, HAVE RECOGNIZED THAT
THE COMMERCE CLAUSE GIVES CONGRESS POWER TO MEET THE ECONOMIC PROBLEMS
OF THE NATION, WHATEVER THEY MAY BE.  GIBBONS V. OGDEN, 9 WHEAT.  1,
194-195.  SEE ALSO MINNESOTA RATE CASES, 230 U.S. 352, 398.  LABOR
CONDITIONS, SO FAR FROM BEING THE CONCERN OF THE INDIVIDUAL STATES
ALONE, CAN NOW ADEQUATELY BE REGULATED ONLY BY CONGRESS.  THE COMMERCE
CLAUSE, IN INCAPACITATING THE STATES, GIVES THE REQUISITE POWER TO
CONGRESS. 

UNDER SUBSTANDARD LABOR CONDITIONS.  THE PROVISION IS ON ITS FACE A
REGULATION OF INTERSTATE COMMERCE, AND THEREFORE WITHIN THE POWERS OF
CONGRESS.  MULFORD V. SMITH, 307 U.S. 38; ELECTRIC BOND & SHARE CO. V.
COMMISSION, 303 U.S. 419, 442; KENTUCKY WHIP & COLLAR CO. V. ILLINOIS
CENTRAL R. CO., 299 U.S. 334, 347. 

IT CAN NO LONGER BE ASSERTED THAT THE POWER OF CONGRESS TO RESTRICT
OR CONDITION INTERSTATE COMMERCE IS LIMITED TO ARTICLES IN THEMSELVES
HARMFUL OR DELETERIOUS. 

THE SUGGESTION THAT CONGRESS CANNOT REGULATE INTERSTATE COMMERCE FOR
ENDS WHICH DO NOT CONCERN COMMERCE ITSELF IS ALSO UNAVAILING.  THE ACT,
INTENDED TO PREVENT UNFAIR COMPETITION AND THE SPREAD OF HARMFUL
CONDITIONS IN INTERSTATE COMMERCE, HAS A GOAL WHICH IS COMMERCIAL IN
THE STRICTEST SENSE.  BUT, EVEN IF IT WERE CONCERNED SIMPLY WITH
HUMANITARIAN ENDS, IT WOULD NONE THE LESS BE WITHIN THE COMMERCE
POWER.  THAT POWER IS MEASURED BY WHAT IT REGULATES, NOT BY WHAT IT
AFFECTS. 

HAMMER V. DAGENHART, 247 U.S. 251, HAS BEEN REPUDIATED BY SUBSEQUENT
DECISIONS OF THIS COURT. 

INTERSTATE CHANNELS FREE OF GOODS PRODUCED UNDER SUBSTANDARD
CONDITIONS.  INTRASTATE ACTS LIE WITHIN THE POWER OF CONGRESS WHEN
NECESSARY EFFECTIVELY TO CONTROL INTERSTATE TRANSACTIONS, AND CONGRESS
NEED NOT WAIT UNTIL TRANSPORTATION COMMENCES IN ITS EFFORT TO PROTECT
THE FLOW OF COMMERCE.  SHREVEPORT CASE, 234 U.S. 342. 

EVEN IF SEC. 15(A)(2) WERE ENTIRELY INDEPENDENT OF SEC. 15(A)(1), IT
WOULD CONSTITUTE A VALID CONTROL OVER UNFAIR COMPETITION IN INTERSTATE
COMMERCE. 

THE LABOR BOARD CASES ARE CONTROLLING BECAUSE CONGRESS HAS FOUND THAT
SEC. 15(A)(2) WILL DIMINISH THE OBSTRUCTIONS TO INTERSTATE COMMERCE
WHICH FLOW FROM LABOR DISPUTES. 

THE SCHECHTER CASE, 295 U.S. 495, APPLIED ONLY TO LOCAL ACTIVITIES
AFTER INTERSTATE COMMERCE HAD ENDED.  THE CARTER COAL CASE, 298 U.S.
238, IS WHOLLY INCONSISTENT WITH THE SUBSEQUENT DECISIONS OF THIS
COURT, IN PARTICULAR SANTA CRUZ FRUIT PACKING CO. V. NATIONAL LABOR
RELATIONS BOARD, 303 U.S. 453, AND SHOULD NOW BE OVERRULED. 

FORBIDDING THEM TO MAKE FALSE REPORTS, ARE ANCILLARY TO THE REGULATORY

THE TENTH AMENDMENT MERELY RESERVES TO THE STATES "THE POWERS NOT
DELEGATED TO THE UNITED STATES."  THAT IT IS NOT A LIMITATION UPON THE
EXERCISE OF THE POWERS WHICH ARE DELEGATED TO THE FEDERAL GOVERNMENT IS
CONFIRMED BY THE HISTORY OF ITS ADOPTION. 

FROM MARTIN V. HUNTER'S LESSEE, 1 WHEAT.  304, 325, TO WRIGHT V.
UNION CENTRAL LIFE INS. CO., 304 U.S. 502, 516, THE COURT HAS
REPEATEDLY RECOGNIZED THAT THE TENTH AMENDMENT ADDS NOTHING TO THE
CONSTITUTION.  A FEW OF THE RELATIVELY RECENT DECISIONS OF THIS COURT
SUGGESTING A CONTRARY VIEW CANNOT BE TAKEN TO HAVE OVERRULED SUB
SILENTIO SO IMPORTANT A CONSTITUTIONAL DOCTRINE. 

THE ACT DOES NOT VIOLATE THE FIFTH AMENDMENT. 

THE ACT ATTEMPTS TO REGULATE CONDITIONS IN THE PRODUCTION OF GOODS,
AND CAN NOT BE SUSTAINED AS A POWER DELEGATED TO CONGRESS TO REGULATE
INTERSTATE COMMERCE.  THE ORIGIN OF THE COMMERCE CLAUSE, THE NATURE OF
OUR CONSTITUTIONAL SYSTEM, AND THE COURSE OF JUDICIAL DECISIONS
PREVENT. 

A PROHIBITION OF SHIPMENT IN INTERSTATE COMMERCE IS NOT NECESSARILY
WITHIN THE CONGRESSIONAL POWER.  UNITED STATES V. BUTLER, 297 U.S. 1;
HAMMER V. DAGENHART, 247 U.S. 251; LABOR BOARD CASES, 301 U.S. 1, ET
SEQ.; BAILEY V. DREXEL FURNITURE CO., 259 U.S. 20. 

NOR IS THE IMPOSITION OF CONDITIONS UPON SHIPMENT IN INTERSTATE
COMMERCE NECESSARILY VALID REGULATION.  THE SUBJECTS UPON WHICH THE
CONDITIONS REACT MUST BE EXAMINED TO DETERMINE WHETHER THE REQUISITE
RELATION TO THE NEEDS OF INTERSTATE COMMERCE EXISTS.  IF PROHIBITION
PER SE BE VALID, CONGRESS COULD DENY THE CHANNELS OF INTERSTATE
COMMERCE TO COMMODITIES PRODUCED WITH LABOR OF A CERTAIN CREED OR
COLOR. 

A CLEAR DISTINCTION EXISTS BETWEEN THE POWER OF CONGRESS TO PROHIBIT
INTERSTATE SHIPMENTS OF HARMFUL AND DELETERIOUS GOODS AND ITS POWER TO
REGULATE SHIPMENTS OF USEFUL COMMODITIES.  PROHIBITION OF SHIPMENTS OF
HARMFUL COMMODITIES DOES NOT INFRINGE UPON, BUT SUPPLEMENTS, THE POWERS
OF THE OTHER GOVERNMENTAL UNITS WHICH MIGHT BE AFFECTED; WHEREAS, IN
THE CASE OF USEFUL AND HARMLESS COMMODITIES THE SEPARATE INTERESTS ARE
UNEQUALLY AFFECTED. 

MERE SIMILARITY OF COMMERCIAL PROBLEMS WHICH ARE COMMON TO ALL OF THE
STATES DOES NOT MEAN THAT CONGRESS MAY LEGISLATE WITH RESPECT TO SUCH
PROBLEMS.  THE CONCENTRATION OF POPULATION IN URBAN AREAS AND THE
INCREASING USE OF MOTOR VEHICLES HAVE CREATED SERIOUS TRAFFIC PROBLEMS
IN ALL OF THE STATES OF THE UNION.  BUT THE CUMULATIVE EFFECT OF THESE
CONDITIONS UPON COMMERCE AMONG THE STATES AND THEIR PREVALENCE
THROUGHOUT THE COUNTRY WOULD NOT VALIDATE UNIFORM REGULATION OF TRAFFIC
BY CONGRESS. 

THE CONGRESSIONAL POWER OVER INTRASTATE COMMERCE IS LIMITED TO THE
REGULATION OF INTRASTATE ACTIVITIES WHICH DIRECTLY AFFECT INTERSTATE
COMMERCE.  SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495, 548;
CARTER V. CARTER COAL CO., 298 U.S. 238, 308. 

CONDITIONS IN PRODUCTION LIKE THOSE INVOLVED HERE HAVE ALWAYS BEEN
HELD TO AFFECT INTERSTATE COMMERCE ONLY INDIRECTLY.  THEIR CONTROL IS
THEREFORE SUBJECT SOLELY TO THE RESERVED POWERS OF THE STATES. 

THE PROPOSITION THAT EVERY CONCEIVABLE LEGISLATIVE POWER IS CONFERRED
BY SEC. 8 OF ARTICLE I OF THE CONSTITUTION IS IN DIRECT CONFLICT WITH
THE DOCTRINE THAT THE FEDERAL GOVERNMENT IS A GOVERNMENT OF ENUMERATED
POWERS.  MOREOVER, THERE IS NO NEED FOR A FINDING THAT LEGISLATIVE
POWER OVER EVERY MATTER OF CONCERN TO THE PEOPLE OF THE STATES AND OF
THE NATION IS LODGED IN EITHER THE STATE OR FEDERAL GOVERNMENTS,
INDIVIDUALLY OR COLLECTIVELY, SINCE THE TENTH AMENDMENT EXPRESSLY
STIPULATES THAT CERTAIN POWERS ARE RESERVED TO THE PEOPLE.  KANSAS V.
COLORADO, 206 U.S. 46, 89-91. 

ADMINISTRATIVE EXPEDIENCY CAN NOT JUSTIFY REGULATION OF INTRASTATE
MATTERS WHERE THE RESULT IS TO OBSCURE COMPLETELY THE BOUNDARIES OF
NATIONAL AND STATE POWER.  SCHECHTER POULTRY CORP. V. UNITED STATES,
295 U.S. 495, 507-508; CARTER V. CARTER COAL CO., 298 U.S. 238, 246,
292, ET SEQ. 

THE DOCTRINE WHICH PERMITS THE REGULATION OF INTRASTATE TRANSACTIONS
WHICH ARE SO COMMINGLED WITH INTERSTATE TRANSACTIONS THAT ALL MUST BE
REGULATED IF THE LATTER ARE TO BE EFFECTIVELY CONTROLLED, IS
INAPPLICABLE. 

ALTHOUGH NOT REQUIRED TO STAY ITS HAND UNTIL ACTUAL MOVEMENT IN
INTERSTATE COMMERCE BEGINS, CONGRESS MAY EXTEND ITS POWER ONLY TO THOSE
TRANSACTIONS OCCURRING BEFORE THE COMMENCEMENT OF INTERSTATE MOVEMENT
WHOSE RELATIONSHIP TO INTERSTATE COMMERCE IS SUFFICIENTLY CLOSE AND
SUBSTANTIAL TO JUSTIFY CONGRESSIONAL ACTION. 

FAILURE TO CONFORM TO THE STATUTORY STANDARD OF MINIMUM WAGES AND
MAXIMUM HOURS IN SUCH MANUFACTURING ESTABLISHMENTS AS APPELLEE'S DOES
NOT IN SUCH A MANNER AFFECT INTERSTATE COMMERCE, NOR CONSTITUTE SUCH AN
UNFAIR METHOD OF COMPETITION, AS TO BE SUBJECT TO THE REGULATORY POWER
OF CONGRESS. 

THE GOVERNMENT'S ARGUMENT IS AN INDIRECT ATTACK UPON THE DUAL SYSTEM
OF GOVERNMENT ESTABLISHED BY THE CONSTITUTION.  SCHECHTER POULTRY CORP.
V. UNITED STATES, 295 U.S. 495, 549. 

THE GOVERNMENT WOULD SOLVE THE PROBLEM OF THE DIVISION OF
GOVERNMENTAL POWERS BY RENDERING THE FEDERAL GOVERNMENT DOMINANT IN ALL
COMMERCIAL AND ECONOMIC MATTERS. 

THE POWER TO CONTROL THE CONDITIONS OF PRODUCTION IN THE MANNER
ATTEMPTED BY THE ACT IS THE POWER TO IMPOSE THE STANDARD OF LIVING OF
ONE SECTION OF THE COUNTRY UPON ANOTHER, TO DISCRIMINATE AGAINST THE
INDUSTRIES OF ONE SECTION AND IN FAVOR OF THOSE OF ANOTHER, AND TO
EQUALIZE ECONOMIC CONDITIONS BY ELIMINATING THE ECONOMIC ADVANTAGES OF
MORE FORTUNATE LOCALITIES.  IF CONGRESS MAY ELIMINATE DIFFERENTIALS IN
LABOR CONDITIONS, IT MAY LIKEWISE ELIMINATE OTHER ECONOMIC
DIFFERENTIALS WHICH AFFECT CONDITIONS IN INTERSTATE COMMERCE.  KIDD V.
PEARSON, 128 U.S. 1, 21-22. 

CASES CITED UNDER THE FEDERAL TRADE COMMISSION ACT AND UNDER THE
SHERMAN ACT ARE INAPPLICABLE.  IN THOSE DECISIONS THE CONDEMNED
PRACTICES TENDED TO RESTRICT COMPETITION IN INTERSTATE COMMERCE. 

THE FACT THAT INDIVIDUAL STATES CAN NOT ADEQUATELY PROTECT THE
MARKETS WHICH LIE OUTSIDE THEIR BORDERS FOR THE ORDERLY SALE OF THEIR
PRODUCTS DOES NOT VEST IN THE NATIONAL GOVERNMENT UNQUALIFIED POWER TO
REGULATE COMPETITION IN THOSE INTERSTATE MARKETS. 

FAILURE TO CONFORM TO THE STATUTORY STANDARD OF MINIMUM WAGES AND
MAXIMUM HOURS IN SUCH MANUFACTURING ESTABLISHMENTS AS APPELLEE'S DOES
NOT LEAD TO LABOR DISPUTES WHICH BURDEN AND OBSTRUCT COMMERCE, NOR
INTERFERE WITH THE ORDERLY AND FAIR MARKETING OF GOODS IN COMMERCE. 

THE ACT DEPRIVES APPELLEE OF LIBERTY AND PROPERTY WITHOUT DUE PROCESS
OF LAW, AND OF THE FREEDOM OF CONTRACT GUARANTEED BY THE FIFTH
AMENDMENT.  IT IS ARBITRARY AND CAPRICIOUS; AND IS INDEFINITE AS TO
WHAT PERSONS ARE SUBJECT TO ITS PENAL PROVISIONS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE TWO PRINCIPAL QUESTIONS RAISED BY THE RECORD IN THIS CASE ARE,
FIRST, WHETHER CONGRESS HAS CONSTITUTIONAL POWER TO PROHIBIT THE
SHIPMENT IN INTERSTATE COMMERCE OF LUMBER MANUFACTURED BY EMPLOYEES
WHOSE WAGES ARE LESS THAN A PRESCRIBED MINIMUM OR WHOSE WEEKLY HOURS OF
LABOR AT THAT WAGE ARE GREATER THAN A PRESCRIBED MAXIMUM, AND, SECOND,
WHETHER IT HAS POWER TO PROHIBIT THE EMPLOYMENT OF WORKMEN IN THE
PRODUCTION OF GOODS "FOR INTERSTATE COMMERCE" AT OTHER THAN PRESCRIBED
WAGES AND HOURS.  A SUBSIDIARY QUESTION IS WHETHER IN CONNECTION WITH
SUCH PROHIBITIONS CONGRESS CAN REQUIRE THE EMPLOYER SUBJECT TO THEM TO
KEEP RECORDS SHOWING THE HOURS WORKED EACH DAY AND WEEK BY EACH OF HIS
EMPLOYEES INCLUDING THOSE ENGAGED "IN THE PRODUCTION AND MANUFACTURE OF
GOODS TO-WIT, LUMBER, FOR 'INTERSTATE COMMERCE.'" 

APPELLEE DEMURRED TO AN INDICTMENT FOUND IN THE DISTRICT COURT FOR
SOUTHERN GEORGIA CHARGING HIM WITH VIOLATION OF SEC. 15(A)(1)(2) AND
(5) OF THE FAIR LABOR STANDARDS ACT OF 1938; 52 STAT. 1060, 29 U.S.C.
SEC. 201, ET SEQ. THE DISTRICT COURT SUSTAINED THE DEMURRER AND QUASHED
THE INDICTMENT AND THE CASE COMES HERE ON DIRECT APPEAL UNDER SEC. 238
OF THE JUDICIAL CODE AS AMENDED, 28 U.S.C. SEC. 345, AND SEC. 682,
TITLE 18 U.S.C., 34 STAT. 1246, WHICH AUTHORIZES AN APPEAL TO THIS
COURT WHEN THE JUDGMENT SUSTAINING THE DEMURRER "IS BASED UPON THE
INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT IS
FOUNDED."    THE FAIR LABOR STANDARDS ACT SET UP A COMPREHENSIVE
LEGISLATIVE SCHEME FOR PREVENTING THE SHIPMENT IN INTERSTATE COMMERCE
OF CERTAIN PRODUCTS AND COMMODITIES PRODUCED IN THE UNITED STATES UNDER
LABOR CONDITIONS AS RESPECTS WAGES AND HOURS WHICH FAIL TO CONFORM TO
STANDARDS SET UP BY THE ACT.  ITS PURPOSE, AS WE JUDICIALLY KNOW FROM
THE DECLARATION OF POLICY IN SEC. 2(A) OF THE ACT,  FN1  AND THE
REPORTS OF CONGRESSIONAL COMMITTEES PROPOSING THE LEGISLATION, S. REPT.
NO. 884, 75TH CONG. 1ST SESS.; H. REPT. NO. 1452, 75TH CONG. 1ST SESS.;
H. REPT. NO. 2182, 75TH CONG. 3D SESS., CONFERENCE REPORT, H. REPT. NO.
2738, 75TH CONG. 3D SESS., IS TO EXCLUDE FROM INTERSTATE COMMERCE GOODS
PRODUCED FOR THE COMMERCE AND TO PREVENT THEIR PRODUCTION FOR
INTERSTATE COMMERCE, UNDER CONDITIONS DETRIMENTAL TO THE MAINTENANCE OF
THE MINIMUM STANDARDS OF LIVING NECESSARY FOR HEALTH AND GENERAL WELL
BEING; AND TO PREVENT THE USE OF INTERSTATE COMMERCE AS THE MEANS OF
COMPETITION IN THE DISTRIBUTION OF GOODS SO PRODUCED, AND AS THE MEANS
OF SPREADING AND PERPETUATING SUCH SUBSTANDARD LABOR CONDITIONS AMONG
THE WORKERS OF THE SEVERAL STATES.  THE ACT ALSO SETS UP AN
ADMINISTRATIVE PROCEDURE WHEREBY THOSE STANDARDS MAY FROM TIME TO TIME
BE MODIFIED GENERALLY AS TO INDUSTRIES SUBJECT TO THE ACT OR WITHIN AN
INDUSTRY IN ACCORDANCE WITH SPECIFIED STANDARDS, BY AN ADMINISTRATOR
ACTING IN COLLABORATION WITH "INDUSTRY COMMITTEES" APPOINTED BY HIM. 

16(A) PUNISHES WILLFUL VIOLATION OF IT BY A FINE OF NOT MORE THAN
$10,000 AND PUNISHES EACH CONVICTION AFTER THE FIRST BY IMPRISONMENT OF
NOT MORE THAN SIX MONTHS OR BY THE SPECIFIED FINE OR BOTH.  SECTION
15(1) MAKES UNLAWFUL THE SHIPMENT IN INTERSTATE COMMERCE OF ANY GOODS
"IN THE PRODUCTION OF WHICH ANY EMPLOYEE WAS EMPLOYED IN VIOLATION OF
THE FIRST YEAR OF OPERATION OF THE ACT A MINIMUM WAGE OF 25 CENTS PER
HOUR SHALL BE PAID TO EMPLOYEES "ENGAGED IN (INTERSTATE) COMMERCE OR
THE PRODUCTION OF GOODS FOR (INTERSTATE) COMMERCE," SEC. 6, AND THAT
THE MAXIMUM HOURS OF EMPLOYMENT FOR EMPLOYEES "ENGAGED IN COMMERCE OR
THE PRODUCTION OF GOODS FOR COMMERCE" WITHOUT INCREASED COMPENSATION
FOR OVERTIME, SHALL BE FORTY-FOUR HOURS A WEEK.  SEC. 7. 

6 AND 7 INCLUDING THE MINIMUM WAGE AND MAXIMUM HOUR REQUIREMENTS JUST
MENTIONED FOR EMPLOYEES ENGAGED IN PRODUCTION OF GOODS FOR COMMERCE. 
TO VIOLATE SEC. 11(C) WHICH REQUIRES HIM TO KEEP SUCH RECORDS OF THE
PERSONS EMPLOYED BY HIM AND OF THEIR WAGES AND HOURS OF EMPLOYMENT AS
THE ADMINISTRATOR SHALL PRESCRIBE BY REGULATION OR ORDER. 

THE INDICTMENT CHARGES THAT APPELLEE IS ENGAGED, IN THE STATE OF
GEORGIA, IN THE BUSINESS OF ACQUIRING RAW MATERIALS, WHICH HE
MANUFACTURES INTO FINISHED LUMBER WITH THE INTENT, WHEN MANUFACTURED,
TO SHIP IT IN INTERSTATE COMMERCE TO CUSTOMERS OUTSIDE THE STATE, AND
THAT HE DOES IN FACT SO SHIP A LARGE PART OF THE LUMBER SO PRODUCED. 
THERE ARE NUMEROUS COUNTS CHARGING APPELLEE WITH THE SHIPMENT IN
INTERSTATE COMMERCE FROM GEORGIA TO POINTS OUTSIDE THE STATE OF LUMBER
IN THE PRODUCTION OF WHICH, FOR INTERSTATE COMMERCE, APPELLEE HAS
EMPLOYED WORKMEN AT LESS THAN THE PRESCRIBED MINIMUM WAGE OR MORE THAN
THE PRESCRIBED MAXIMUM HOURS WITHOUT PAYMENT TO THEM OF ANY WAGE FOR
OVERTIME.  OTHER COUNTS CHARGE THE EMPLOYMENT BY APPELLEE OF WORKMEN IN
THE PRODUCTION OF LUMBER FOR INTERSTATE COMMERCE AT WAGES AT LESS THAN
25 CENTS AN HOUR OR FOR MORE THAN THE MAXIMUM HOURS PER WEEK WITHOUT
PAYMENT TO THEM OF THE PRESCRIBED OVERTIME WAGE.  STILL ANOTHER COUNT
CHARGES APPELLEE WITH FAILURE TO KEEP RECORDS SHOWING THE HOURS WORKED
EACH DAY A WEEK BY EACH OF HIS EMPLOYEES AS REQUIRED BY SEC. 11(C) AND
THE REGULATION OF THE ADMINISTRATOR, TITLE 29, CH. 5, CODE OF FEDERAL
REGULATIONS, PART 516, AND ALSO THAT APPELLEE UNLAWFULLY FAILED TO KEEP
SUCH RECORDS OF EMPLOYEES ENGAGED "IN THE PRODUCTION AND MANUFACTURE OF
GOODS, TO-WIT LUMBER, FOR INTERSTATE COMMERCE." 

THE DEMURRER, SO FAR AS NOW RELEVANT TO THE APPEAL, CHALLENGED THE
VALIDITY OF THE FAIR LABOR STANDARDS ACT UNDER THE COMMERCE CLAUSE AND
THE FIFTH AND TENTH AMENDMENTS.  THE DISTRICT COURT QUASHED THE
INDICTMENT IN ITS ENTIRETY UPON THE BROAD GROUNDS THAT THE ACT, WHICH
IT INTERPRETED AS A REGULATION OF MANUFACTURE WITHIN THE STATES, IS
UNCONSTITUTIONAL.  IT DECLARED THAT MANUFACTURE IS NOT INTERSTATE
COMMERCE AND THAT THE REGULATION BY THE FAIR LABOR STANDARDS ACT OF
WAGES AND HOURS OF EMPLOYMENT OF THOSE ENGAGED IN THE MANUFACTURE OF
GOODS WHICH IT IS INTENDED AT THE TIME OF PRODUCTION "MAY OR WILL BE"
AFTER PRODUCTION "SOLD IN INTERSTATE COMMERCE IN PART OR IN WHOLE" IS
NOT WITHIN THE CONGRESSIONAL POWER TO REGULATE INTERSTATE COMMERCE. 

THE EFFECT OF THE COURT'S DECISION AND JUDGMENT IS THUS TO DENY THE
POWER OF CONGRESS TO PROHIBIT SHIPMENT IN INTERSTATE COMMERCE OF LUMBER
PRODUCED FOR INTERSTATE COMMERCE UNDER THE PROSCRIBED SUBSTANDARD LABOR
CONDITIONS OF WAGES AND HOURS, ITS POWER TO PENALIZE THE EMPLOYER FOR
HIS FAILURE TO CONFORM TO THE WAGE AND HOUR PROVISIONS IN THE CASE OF
EMPLOYEES ENGAGED IN THE PRODUCTION OF LUMBER WHICH HE INTENDS
THEREAFTER TO SHIP IN INTERSTATE COMMERCE IN PART OR IN WHOLE ACCORDING
TO THE NORMAL COURSE OF HIS BUSINESS AND ITS POWER TO COMPEL HIM TO
KEEP RECORDS OF HOURS OF EMPLOYMENT AS REQUIRED BY THE STATUTE AND THE
REGULATIONS OF THE ADMINISTRATOR. 

THE CASE COMES HERE ON ASSIGNMENTS BY THE GOVERNMENT THAT THE
DISTRICT COURT ERRED INSOFAR AS IT HELD THAT CONGRESS WAS WITHOUT
CONSTITUTIONAL POWER TO PENALIZE THE ACTS SET FORTH IN THE INDICTMENT,
AND APPELLEE SEEKS TO SUSTAIN THE DECISION BELOW ON THE GROUNDS THAT
THE PROHIBITION BY CONGRESS OF THOSE ACTS IS UNAUTHORIZED BY THE
COMMERCE CLAUSE AND IS PROHIBITED BY THE FIFTH AMENDMENT.  THE APPEAL
STATUTE LIMITS OUR JURISDICTION ON THIS APPEAL TO A REVIEW OF THE
DETERMINATION OF THE DISTRICT COURT SO FAR ONLY AS IT IS BASED ON THE
VALIDITY OR CONSTRUCTION OF THE STATUTE.  UNITED STATES V. BORDEN CO.,
308 U.S. 188, 193-195, AND CASES CITED.  HENCE WE ACCEPT THE DISTRICT
COURT'S INTERPRETATION OF THE INDICTMENT AND CONFINE OUR DECISION TO
THE VALIDITY AND CONSTRUCTION OF THE STATUTE. 

THE PROHIBITION OF SHIPMENT OF THE PROSCRIBED GOODS IN INTERSTATE
COMMERCE.  SECTION 15(A)(1) PROHIBITS, AND THE INDICTMENT CHARGES, THE
SHIPMENT IN INTERSTATE COMMERCE, OF GOODS PRODUCED FOR INTERSTATE
COMMERCE BY EMPLOYEES WHOSE WAGES AND HOURS OF EMPLOYMENT DO NOT
CONFORM TO THE REQUIREMENTS OF THE ACT.  SINCE THIS SECTION IS NOT
VIOLATED UNLESS THE COMMODITY SHIPPED HAS BEEN PRODUCED UNDER LABOR
CONDITIONS PROHIBITED BY SEC. 6 AND SEC. 7, THE ONLY QUESTION ARISING
UNDER THE COMMERCE CLAUSE WITH RESPECT TO SUCH SHIPMENTS IS WHETHER
CONGRESS HAS THE CONSTITUTIONAL POWER TO PROHIBIT THEM. 

WHILE MANUFACTURE IS NOT OF ITSELF INTERSTATE COMMERCE, THE SHIPMENT
OF MANUFACTURED GOODS INTERSTATE IS SUCH COMMERCE AND THE PROHIBITION
OF SUCH SHIPMENT BY CONGRESS IS INDUBITABLY A REGULATION OF THE
COMMERCE.  THE POWER TO REGULATE COMMERCE IS THE POWER "TO PRESCRIBE
THE RULE BY WHICH COMMERCE IS GOVERNED."  GIBBONS V. OGDEN, 9 WHEAT. 
1, 196.  IT EXTENDS NOT ONLY TO THOSE REGULATIONS WHICH AID, FOSTER AND
PROTECT THE COMMERCE, BUT EMBRACES THOSE WHICH PROHIBIT IT. REID V.
COLORADO, 187 U.S. 137; LOTTERY CASE, 188 U.S. 321; UNITED STATES V.
DELAWARE & HUDSON CO., 213 U.S. 366; HOKE V. UNITED STATES, 227 U.S.
308; CLARK DISTILLING CO. V. WESTERN MARYLAND RY. CO., 242 U.S. 311;
UNITED STATES V. HILL, 248 U.S. 420; MCCORMICK & CO. V. BROWN, 286 U.S.
131.  IT IS CONCEDED THAT THE POWER OF CONGRESS TO PROHIBIT
TRANSPORTATION IN INTERSTATE COMMERCE INCLUDES NOXIOUS ARTICLES,
LOTTERY CASE, SUPRA; HIPOLITE EGG CO. V. UNITED STATES, 220 U.S. 45;
CF. HOKE V. UNITED STATES, SUPRA; STOLEN ARTICLES, BROOKS V. UNITED
STATES, 267 U.S. 432; KIDNAPPED PERSONS, GOOCH V. UNITED STATES, 297
U.S. 124, AND ARTICLES SUCH AS INTOXICATING LIQUOR OR CONVICT MADE
GOODS, TRAFFIC IN WHICH IS FORBIDDEN OR RESTRICTED BY THE LAWS OF THE
STATE OF DESTINATION.  KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENTRAL
R. CO., 299 U.S. 334. 

BUT IT IS SAID THAT THE PRESENT PROHIBITION FALLS WITHIN THE SCOPE OF
NONE OF THESE CATEGORIES; THAT WHILE THE PROHIBITION IS NOMINALLY A
REGULATION OF THE COMMERCE ITS MOTIVE OR PURPOSE IS REGULATION OF WAGES
AND HOURS OF PERSONS ENGAGED IN MANUFACTURE, THE CONTROL OF WHICH HAS
BEEN RESERVED TO THE STATES AND UPON WHICH GEORGIA AND SOME OF THE
STATES OF DESTINATION HAVE PLACED NO RESTRICTION; THAT THE EFFECT OF
THE PRESENT STATUTE IS NOT TO EXCLUDE THE PROSCRIBED ARTICLES FROM
INTERSTATE COMMERCE IN AID OF STATE REGULATION AS IN KENTUCKY WHIP &
COLLAR CO. V. ILLINOIS CENTRAL R. CO., SUPRA, BUT INSTEAD, UNDER THE
GUISE OF A REGULATION OF INTERSTATE COMMERCE, IT UNDERTAKES TO REGULATE
WAGES AND HOURS WITHIN THE STATE CONTRARY TO THE POLICY OF THE STATE
WHICH HAS ELECTED TO LEAVE THEM UNREGULATED. 

THE POWER OF CONGRESS OVER INTERSTATE COMMERCE "IS COMPLETE IN
ITSELF, MAY BE EXERCISED TO ITS UTMOST EXTENT, AND ACKNOWLEDGES NO
LIMITATIONS OTHER THAN ARE PRESCRIBED IN THE CONSTITUTION."  GIBBONS V.
OGDEN, SUPRA, 196.  THAT POWER CAN NEITHER BE ENLARGED NOR DIMINISHED
BY THE EXERCISE OR NON-EXERCISE OF STATE POWER.  KENTUCKY WHIP & COLLAR
CO. V. ILLINOIS CENTRAL R. CO., SUPRA. CONGRESS, FOLLOWING ITS OWN
CONCEPTION OF PUBLIC POLICY CONCERNING THE RESTRICTIONS WHICH MAY
APPROPRIATELY BE IMPOSED ON INTERSTATE COMMERCE, IS FREE TO EXCLUDE
FROM THE COMMERCE ARTICLES WHOSE USE IN THE STATES FOR WHICH THEY ARE
DESTINED IT MAY CONCEIVE TO BE INJURIOUS TO THE PUBLIC HEALTH, MORALS
OR WELFARE, EVEN THOUGH THE STATE HAS NOT SOUGHT TO REGULATE THEIR
USE.  REID V. COLORADO, SUPRA; LOTTERY CASE, SUPRA; HIPOLITE EGG CO. V.
UNITED STATES, SUPRA; HOKE V. UNITED STATES, SUPRA. 

SUCH REGULATION IS NOT A FORBIDDEN INVASION OF STATE POWER MERELY
BECAUSE EITHER ITS MOTIVE OR ITS CONSEQUENCE IS TO RESTRICT THE USE OF
ARTICLES OF COMMERCE WITHIN THE STATES OF DESTINATION; AND IS NOT
PROHIBITED UNLESS BY OTHER CONSTITUTIONAL PROVISIONS.  IT IS NO
OBJECTION TO THE ASSERTION OF THE POWER TO REGULATE INTERSTATE COMMERCE
THAT ITS EXERCISE IS ATTENDED BY THE SAME INCIDENTS WHICH ATTEND THE
EXERCISE OF THE POLICE POWER OF THE STATES.  SEVEN CASES V. UNITED
STATES, 239 U.S. 510, 514; HAMILTON V. KENTUCKY DISTILLERIES &
WAREHOUSE CO., 251 U.S. 146, 156; UNITED STATES V. CAROLENE PRODUCTS
CO., 304 U.S. 144, 147; UNITED STATES V. APPALACHIAN ELECTRIC POWER
CO., 311 U.S. 377. 

THE MOTIVE AND PURPOSE OF THE PRESENT REGULATION ARE PLAINLY TO MAKE
EFFECTIVE THE CONGRESSIONAL CONCEPTION OF PUBLIC POLICY THAT INTERSTATE
COMMERCE SHOULD NOT BE MADE THE INSTRUMENT OF COMPETITION IN THE
DISTRIBUTION OF GOODS PRODUCED UNDER SUBSTANDARD LABOR CONDITIONS,
WHICH COMPETITION IS INJURIOUS TO THE COMMERCE AND TO THE STATES FROM
AND TO WHICH THE COMMERCE FLOWS.  THE MOTIVE AND PURPOSE OF A
REGULATION OF INTERSTATE COMMERCE ARE MATTERS FOR THE LEGISLATIVE
JUDGMENT UPON THE EXERCISE OF WHICH THE CONSTITUTION PLACES NO
RESTRICTION AND OVER WHICH THE COURTS ARE GIVEN NO CONTROL.  MCCRAY V.
UNITED STATES, 195 U.S. 27; SONZINSKY V. UNITED STATES, 300 U.S. 506,
513 AND CASES CITED.  "THE JUDICIAL CANNOT PRESCRIBE TO THE LEGISLATIVE
DEPARTMENT OF THE GOVERNMENT LIMITATIONS UPON THE EXERCISE OF ITS
ACKNOWLEDGED POWER."  VEAZIE BANK V. FENNO, 8 WALL.  533.  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.  SUBJECT ONLY TO THAT LIMITATION,
PRESENTLY TO BE CONSIDERED, WE CONCLUDE THAT THE PROHIBITION OF THE
SHIPMENT INTERSTATE OF GOODS PRODUCED UNDER THE FORBIDDEN SUBSTANDARD
LABOR CONDITIONS IS WITHIN THE CONSTITUTIONAL AUTHORITY OF CONGRESS. 

IN THE MORE THAN A CENTURY WHICH HAS ELAPSED SINCE THE DECISON OF
GIBBONS V. OGDEN, THESE PRINCIPLES OF CONSTITUTIONAL INTERPRETATION
HAVE BEEN SO LONG AND REPEATEDLY RECOGNIZED BY THIS COURT AS APPLICABLE
TO THE COMMERCE CLAUSE, THAT THERE WOULD BE LITTLE OCCASION FOR
REPEATING THEM NOW WERE IT NOT FOR THE DECISION OF THIS COURT TWENTY
TWO YEARS AGO IN HAMMER V. DAGENHART, 247 U.S. 251.  IN THAT CASE IT
WAS HELD BY A BARE MAJORITY OF THE COURT OVER THE POWERFUL AND NOW
CLASSIC DISSENT OF MR. JUSTICE HOLMES SETTING FORTH THE FUNDAMENTAL
ISSUES INVOLVED, THAT CONGRESS WAS WITHOUT POWER TO EXCLUDE THE
PRODUCTS OF CHILD LABOR FROM INTERSTATE COMMERCE.  THE REASONING AND
CONCLUSION OF THE COURT'S OPINION THERE CANNOT BE RECONCILED WITH THE
CONCLUSION WHICH WE HAVE REACHED, THAT THE POWER OF CONGRESS UNDER THE
COMMERCE CLAUSE IS PLENARY TO EXCLUDE ANY ARTICLE FROM INTERSTATE
COMMERCE SUBJECT ONLY TO THE SPECIFIC PROHIBITIONS OF THE
CONSTITUTION. 

HAMMER V. DAGENHART HAS NOT BEEN FOLLOWED.  THE DISTINCTION ON WHICH
THE DECISION WAS RESTED THAT CONGRESSIONAL POWER TO PROHIBIT INTERSTATE
COMMERCE IS LIMITED TO ARTICLES WHICH IN THEMSELVES HAVE SOME HARMFUL
OR DELETERIOUS PROPERTY - A DISTINCTION WHICH WAS NOVEL WHEN MADE AND
UNSUPPORTED BY ANY PROVISION OF THE CONSTITUTION - HAS LONG SINCE BEEN
ABANDONED.  BROOKS V. UNITED STATES, SUPRA; KENTUCKY WHIP & COLLAR CO.
V. ILLINOIS CENTRAL R. CO., SUPRA; ELECTRIC BOND & SHARE CO. V.
SECURITIES & EXCHANGE COMM'N, 303 U.S. 419; MULFORD V. SMITH, 307 U.S.
38.  THE THESIS OF THE OPINION THAT THE MOTIVE OF THE PROHIBITION OR
ITS EFFECT TO CONTROL IN SOME MEASURE THE USE OR PRODUCTION WITHIN THE
STATES OF THE ARTICLE THUS EXCLUDED FROM THE COMMERCE CAN OPERATE TO
DEPRIVE THE REGULATION OF ITS CONSTITUTIONAL AUTHORITY HAS LONG SINCE
CEASED TO HAVE FORCE.  REID V. COLORADO, SUPRA; LOTTERY CASE, SUPRA;
HIPOLITE EGG CO. V. UNITED STATES, SUPRA; SEVEN CASES V. UNITED STATES,
SUPRA, 514; HAMILTON V. KENTUCKY DISTILLERIES & WAREHOUSE CO., SUPRA,
156; UNITED STATES V. CAROLENE PRODUCTS CO., SUPRA, 147.  AND FINALLY
WE HAVE DECLARED "THE AUTHORITY OF THE FEDERAL GOVERNMENT OVER
INTERSTATE COMMERCE DOES NOT DIFFER IN EXTENT OR CHARACTER FROM THAT
RETAINED BY THE STATES OVER INTRASTATE COMMERCE."  UNITED STATES V.
ROCK ROYAL CO-OPERATIVE, 307 U.S. 533, 569.    THE CONCLUSION IS
INESCAPABLE THAT HAMMER V. DAGENHART, WAS A DEPARTURE FROM THE
PRINCIPLES WHICH HAVE PREVAILED IN THE INTERPRETATION OF THE COMMERCE
CLAUSE BOTH BEFORE AND SINCE THE DECISION AND THAT SUCH VITALITY, AS A
PRECEDENT, AS IT THEN HAD HAS LONG SINCE BEEN EXHAUSTED.  IT SHOULD BE
AND NOW IS OVERRULED. 

VALIDITY OF THE WAGE AND HOUR REQUIREMENTS.  SECTION 15(A)(2) AND
SECS. 6 AND 7 REQUIRE EMPLOYERS TO CONFORM TO THE WAGE AND HOUR
PROVISIONS WITH RESPECT TO ALL EMPLOYEES ENGAGED IN THE PRODUCTION OF
GOODS FOR INTERSTATE COMMERCE.  AS APPELLEE'S EMPLOYEES ARE NOT ALLEGED
TO BE "ENGAGED IN INTERSTATE COMMERCE" THE VALIDITY OF THE PROHIBITION
TURNS ON THE QUESTION WHETHER THE EMPLOYMENT, UNDER OTHER THAN THE
PRESCRIBED LABOR STANDARDS, OF EMPLOYEES ENGAGED IN THE PRODUCTION OF
GOODS FOR INTERSTATE COMMERCE IS SO RELATED TO THE COMMERCE AND SO
AFFECTS IT AS TO BE WITHIN THE REACH OF THE POWER OF CONGRESS TO
REGULATE IT. 

TO ANSWER THIS QUESTION WE MUST AT THE OUTSET DETERMINE WHETHER THE
PARTICULAR ACTS CHARGED IN THE COUNTS WHICH ARE LAID UNDER SEC.
15(A)(2) AS THEY WERE CONSTRUED BELOW, CONSTITUTE "PRODUCTION FOR
COMMERCE" WITHIN THE MEANING OF THE STATUTE.  AS THE GOVERNMENT SEEKS
TO APPLY THE STATUTE IN THE INDICTMENT, AND AS THE COURT BELOW
CONSTRUED THE PHRASE "PRODUCED FOR INTERSTATE COMMERCE," IT EMBRACES AT
LEAST THE CASE WHERE AN EMPLOYER ENGAGED, AS IS APPELLEE, IN THE
MANUFACTURE AND SHIPMENT OF GOODS IN FILLING ORDERS OF EXTRASTATE
CUSTOMERS, MANUFACTURES HIS PRODUCT WITH THE INTENT OR EXPECTATION THAT
ACCORDING TO THE NORMAL COURSE OF HIS BUSINESS ALL OR SOME PART OF IT
WILL BE SELECTED FOR SHIPMENT TO THOSE CUSTOMERS. 

WITHOUT ATTEMPTING TO DEFINE THE PRECISE LIMITS OF THE PHRASE, WE
THINK THE ACTS ALLEGED IN THE INDICTMENT ARE WITHIN THE SWEEP OF THE
STATUTE.  THE OBVIOUS PURPOSE OF THE ACT WAS NOT ONLY TO PREVENT THE
INTERSTATE TRANSPORTATION OF THE PROSCRIBED PRODUCT, BUT TO STOP THE
INITIAL STEP TOWARD TRANSPORTATION, PRODUCTION WITH THE PURPOSE OF SO
TRANSPORTING IT.  CONGRESS WAS NOT UNAWARE THAT MOST MANUFACTURING
BUSINESSES SHIPPING THEIR PRODUCT IN INTERSTATE COMMERCE MAKE IT IN
THEIR SHOPS WITHOUT REFERENCE TO ITS ULTIMATE DESTINATION AND THEN
AFTER MANUFACTURE SELECT SOME OF IT FOR SHIPMENT INTERSTATE AND SOME
INTRASTATE ACCORDING TO THE DAILY DEMANDS OF THEIR BUSINESS, AND THAT
IT WOULD BE PRACTICALLY IMPOSSIBLE, WITHOUT DISRUPTING MANUFACTURING
BUSINESSES, TO RESTRICT THE PROHIBITED KIND OF PRODUCTION TO THE
PARTICULAR PIECES OF LUMBER, CLOTH, FURNITURE OR THE LIKE WHICH LATER
MOVE IN INTERSTATE RATHER THAN INTRASTATE COMMERCE.  CF. UNITED STATES
V. NEW YORK CENTRAL R. CO., 272 U.S. 457, 464. 

THE RECOGNIZED NEED OF DRAFTING A WORKABLE STATUTE AND THE WELL KNOWN
CIRCUMSTANCES IN WHICH IT WAS TO BE APPLIED ARE PERSUASIVE OF THE
CONCLUSION, WHICH THE LEGISLATIVE HISTORY SUPPORTS, S. REPT. NO. 884,
75TH CONG. 1ST SESS., PP. 7 AND 8; H. REPT. NO. 2738, 75TH CONG. 3D
SESS., P. 17, THAT THE "PRODUCTION FOR COMMERCE" INTENDED INCLUDES AT
LEAST PRODUCTION OF GOODS, WHICH, AT THE TIME OF PRODUCTION, THE
EMPLOYER, ACCORDING TO THE NORMAL COURSE OF HIS BUSINESS, INTENDS OR
EXPECTS TO MOVE IN INTERSTATE COMMERCE ALTHOUGH, THROUGH THE EXIGENCIES
OF THE BUSINESS, ALL OF THE GOODS MAY NOT THEREAFTER ACTUALLY ENTER
INTERSTATE COMMERCE.  FN2 

THERE REMAINS THE QUESTION WHETHER SUCH RESTRICTION ON THE PRODUCTION
OF GOODS FOR COMMERCE IS A PERMISSIBLE EXERCISE OF THE COMMERCE POWER. 
THE POWER OF CONGRESS OVER INTERSTATE COMMERCE IS NOT CONFINED TO THE
REGULATION OF COMMERCE AMONG THE STATES.  IT 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.  SEE
MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 421.  CF. UNITED STATES V.
FERGER, 250 U.S. 199. 

WHILE THIS COURT HAS MANY TIMES FOUND STATE REGULATION OF INTERSTATE
COMMERCE, WHEN UNIFORMITY OF ITS REGULATION IS OF NATIONAL CONCERN, TO
BE INCOMPATIBLE WITH THE COMMERCE CLAUSE EVEN THOUGH CONGRESS HAS NOT
LEGISLATED ON THE SUBJECT, THE COURT HAS NEVER IMPLIED SUCH RESTRAINT
ON STATE CONTROL OVER MATTERS INTRASTATE NOT DEEMED TO BE REGULATIONS
OF INTERSTATE COMMERCE OR ITS INSTRUMENTALITIES EVEN THOUGH THEY AFFECT
THE COMMERCE.  MINNESOTA RATE CASES, 230 U.S. 352, 398 ET SEQ., AND
CASE CITED; 410 ET SEQ., AND CASES CITED.  IN THE ABSENCE OF
CONGRESSIONAL LEGISLATION ON THE SUBJECT STATE LAWS WHICH ARE NOT
REGULATIONS OF THE COMMERCE ITSELF OR ITS INSTRUMENTALITIES ARE NOT
FORBIDDEN EVEN THOUGH THEY AFFECT INTERSTATE COMMERCE.  KIDD V.
PEARSON, 128 U.S. 1; BACON V. ILLINOIS, 227 U.S. 504; HEISLER V. THOMAS
COLLIERY CO., 260 U.S. 245; OLIVER IRON CO. V. LORD, 262 U.S. 172. 

BUT IT DOES NOT FOLLOW THAT CONGRESS MAY NOT BY APPROPRIATE
LEGISLATION REGULATE INTRASTATE ACTIVITIES WHERE THEY HAVE A
SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE.  SEE SANTA CRUZ FRUIT
PACKING CO. V. NATIONAL LABOR RELATIONS BOARD, 303 U.S. 453, 466.  A
RECENT EXAMPLE IS THE NATIONAL LABOR RELATIONS ACT FOR THE REGULATION
OF EMPLOYER AND EMPLOYEE RELATIONS IN INDUSTRIES IN WHICH STRIKES,
INDUCED BY UNFAIR LABOR PRACTICES NAMED IN THE ACT, TEND TO DISTURB OR
OBSTRUCT INTERSTATE COMMERCE.  SEE NATIONAL LABOR RELATIONS BOARD V.
JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 38, 40; NATIONAL LABOR
RELATIONS BOARD V. FAINBLATT, 306 U.S. 601, 604, AND CASES CITED.  BUT
LONG BEFORE THE ADOPTION OF THE NATIONAL LABOR RELATIONS ACT THIS COURT
HAD MANY TIMES HELD THAT THE POWER OF CONGRESS TO REGULATE INTERSTATE
COMMERCE EXTENDS TO THE REGULATION THROUGH LEGISLATIVE ACTION OF
ACTIVITIES INTRASTATE WHICH HAVE A SUBSTANTIAL EFFECT ON THE COMMERCE
OR THE EXERCISE OF THE CONGRESSIONAL POWER OVER IT.  FN3 

IN SUCH LEGISLATION CONGRESS HAS SOMETIMES LEFT IT TO THE COURTS TO
DETERMINE WHETHER THE INTRASTATE ACTIVITIES HAVE THE PROHIBITED EFFECT
ON THE COMMERCE, AS IN THE SHERMAN ACT.  IT HAS SOMETIMES LEFT IT TO AN
ADMINISTRATIVE BOARD OR AGENCY TO DETERMINE WHETHER THE ACTIVITIES
SOUGHT TO BE REGULATED OR PROHIBITED HAVE SUCH EFFECT, AS IN THE CASE
OF THE INTERSTATE COMMERCE ACT, AND THE NATIONAL LABOR RELATIONS ACT,
OR WHETHER THEY COME WITHIN THE STATUTORY DEFINITION OF THE PROHIBITED
ACT, AS IN THE FEDERAL TRADE COMMISSION ACT.  AND SOMETIMES CONGRESS
ITSELF HAS SAID THAT A PARTICULAR ACTIVITY AFFECTS THE COMMERCE, AS IT
DID IN THE PRESENT ACT, THE SAFETY APPLIANCE ACT AND THE RAILWAY LABOR
ACT.  IN PASSING ON THE VALIDITY OF LEGISLATION OF THE CLASS LAST
MENTIONED THE ONLY FUNCTION OF COURTS IS TO DETERMINE WHETHER THE
PARTICULAR ACTIVITY REGULATED OR PROHIBITED IS WITHIN THE REACH OF THE
FEDERAL POWER.  SEE UNITED STATES V. FERGER, SUPRA; VIRGINIAN RY. CO.
V. FEDERATION, 300 U.S. 515, 553. 

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; EVERARD'S BREWERIES V. DAY, 265 U.S. 545, 560;
WESTFALL V. UNITED STATES, 274 U.S. 256, 259.  AS TO STATE POWER UNDER
THE FOURTEENTH AMENDMENT, COMPARE OTIS V. PARKER, 187 U.S. 606, 609;
ST. JOHN V. NEW YORK, 201 U.S. 633; PURITY EXTRACT & TONIC CO. V.
LYNCH, 226 U.S. 192, 201-202.  A FAMILIAR LIKE EXERCISE OF POWER IS THE
REGULATION OF INTRASTATE TRANSACTIONS WHICH ARE SO COMMINGLED WITH OR
RELATED TO INTERSTATE COMMERCE THAT ALL MUST BE REGULATED IF THE
INTERSTATE COMMERCE IS TO BE EFFECTIVELY CONTROLLED.  SHREVEPORT CASE,
234 U.S. 342; RAILROAD COMMISSION OF WISCONSIN V. CHICAGO, B. & Q.R.
CO., 257 U.S. 563; UNITED STATES V. NEW YORK CENTRAL R. CO., SUPRA,
464; CURRIN V. WALLACE, 306 U.S. 1; MULFORD V. SMITH, SUPRA.  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.  IT MAY PROHIBIT THE REMOVAL, AT
DESTINATION, OF LABELS REQUIRED BY THE PURE FOOD & DRUGS ACT TO BE
AFFIXED TO ARTICLES TRANSPORTED IN INTERSTATE COMMERCE.  MCDERMOTT V.
WISCONSIN, 228 U.S. 115.  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, SUPRA, 11, AND SEE TO THE LIKE EFFECT
UNITED STATES V. ROCK ROYAL CO-OP., SUPRA, 568, NOTE 37. 

WE THINK ALSO THAT SEC. 15(A)(2), NOW UNDER CONSIDERATION, IS
SUSTAINABLE INDEPENDENTLY OF SEC. 15(A)(1), WHICH PROHIBITS SHIPMENT OR
TRANSPORTATION OF THE PROSCRIBED GOODS.  AS WE HAVE SAID THE EVILS
AIMED AT BY THE ACT ARE THE SPREAD OF SUBSTANDARD LABOR CONDITIONS
THROUGH THE USE OF THE FACILITIES OF INTERSTATE COMMERCE FOR
COMPETITION BY THE GOODS SO PRODUCED WITH THOSE PRODUCED UNDER THE
PRESCRIBED OR BETTER LABOR CONDITIONS; AND THE CONSEQUENT DISLOCATION
OF THE COMMERCE ITSELF CAUSED BY THE IMPAIRMENT OR DESTRUCTION OF LOCAL
BUSINESSES BY COMPETITION MADE EFFECTIVE THROUGH INTERSTATE COMMERCE. 
THE ACT IS THUS DIRECTED AT THE SUPPRESSION OF A METHOD OR KIND OF
COMPETITION IN INTERSTATE COMMERCE WHICH IT HAS IN EFFECT CONDEMNED AS
"UNFAIR," AS THE CLAYTON ACT HAS CONDEMNED OTHER "UNFAIR METHODS OF
COMPETITION" MADE EFFECTIVE THROUGH INTERSTATE COMMERCE.  SEE VAN CAMP
& SONS CO. V. AMERICAN CAN CO., 278 U.S. 245; FEDERAL TRADE COMM'N V.
KEPPEL & BRO., 291 U.S. 304. 

THE SHERMAN ACT AND THE NATIONAL LABOR RELATIONS ACT ARE FAMILIAR
EXAMPLES OF THE EXERTION OF THE COMMERCE POWER TO PROHIBIT OR CONTROL
ACTIVITIES WHOLLY INTRASTATE BECAUSE OF THEIR EFFECT ON INTERSTATE
COMMERCE.  SEE AS TO THE SHERMAN ACT, NORTHERN SECURITIES CO. V. UNITED
STATES, 193 U.S. 197; SWIFT & CO. V. UNITED STATES, 196 U.S. 375;
UNITED STATES V. PATTEN, 226 U.S. 525; UNITED MINE WORKERS V. CORONADO
COAL CO., 259 U.S. 344; LOCAL NO. 167 V. UNITED STATES, 291 U.S. 293;
STEVENS CO. V. FOSTER & KLEISER CO., 311 U.S. 255.  AS TO THE NATIONAL
LABOR RELATIONS ACT, SEE NATIONAL LABOR RELATIONS BOARD V. FAINBLATT,
SUPRA, AND CASES CITED. 

THE MEANS ADOPTED BY SEC. 15(A)(2) FOR THE PROTECTION OF INTERSTATE
COMMERCE BY THE SUPPRESSION OF THE PRODUCTION OF THE CONDEMNED GOODS
FOR INTERSTATE COMMERCE IS SO RELATED TO THE COMMERCE AND SO AFFECTS IT
AS TO BE WITHIN THE REACH OF THE COMMERCE POWER.  SEE CURRIN V.
WALLACE, SUPRA, 11.  CONGRESS, TO ATTAIN ITS OBJECTIVE IN THE
SUPPRESSION OF NATIONWIDE COMPETITION IN INTERSTATE COMMERCE BY GOODS
PRODUCED UNDER SUBSTANDARD LABOR CONDITIONS, HAS MADE NO DISTINCTION AS
TO THE VOLUME OR AMOUNT OF SHIPMENTS IN THE COMMERCE OR OF PRODUCTION
FOR COMMERCE BY ANY PARTICULAR SHIPPER OR PRODUCER.  IT RECOGNIZED THAT
IN PRESENT DAY INDUSTRY, COMPETITION BY A SMALL PART MAY AFFECT THE
WHOLE AND THAT THE TOTAL EFFECT OF THE COMPETITION OF MANY SMALL
PRODUCERS MAY BE GREAT.  SEE H. REPT. NO. 2182, 75TH CONG. 1ST SESS.,
P. 7.  THE LEGISLATION AIMED AT A WHOLE EMBRACES ALL ITS PARTS.  CF.
NATIONAL LABOR RELATIONS BOARD V. FAINBLATT, SUPRA, 606. 

SO FAR AS CARTER V. CARTER COAL CO., 298 U.S. 238, IS INCONSISTENT
WITH THIS CONCLUSION, ITS DOCTRINE IS LIMITED IN PRINCIPLE BY THE
DECISIONS UNDER THE SHERMAN ACT AND THE NATIONAL LABOR RELATIONS ACT,
WHICH WE HAVE CITED AND WHICH WE FOLLOW.  SEE ALSO SUNSHINE ANTHRACITE
COAL CO. V. ADKINS, 310 U.S. 381; CURRIN V. WALLACE, SUPRA; MULFORD V.
SMITH, SUPRA; UNITED STATES V. ROCK ROYAL CO-OP., SUPRA; CLOVER FORK
COAL CO. V. NATIONAL LABOR RELATIONS BOARD, 97 F.2D 331; NATIONAL LABOR
RELATIONS BOARD V. CROWE COAL CO., 104 F.2D 633; NATIONAL LABOR
RELATIONS BOARD V. GOOD COAL CO., 110 F.2D 501. 

OUR CONCLUSION IS UNAFFECTED BY THE TENTH AMENDMENT WHICH PROVIDES:
"THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION, NOR
PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES
RESPECTIVELY, OR TO THE PEOPLE."  THE AMENDMENT STATES BUT A TRUISM
THAT ALL IS RETAINED WHICH HAS NOT BEEN SURRENDERED.  THERE IS NOTHING
IN THE HISTORY OF ITS ADOPTION TO SUGGEST THAT IT WAS MORE THAN
DECLARATORY OF THE RELATIONSHIP BETWEEN THE NATIONAL AND STATE
GOVERNMENTS AS IT HAD BEEN ESTABLISHED BY THE CONSTITUTION BEFORE THE
AMENDMENT OR THAT ITS PURPOSE WAS OTHER THAN TO ALLAY FEARS THAT THE
NEW NATIONAL GOVERNMENT MIGHT SEEK TO EXERCISE POWERS NOT GRANTED, AND
THAT THE STATES MIGHT NOT BE ABLE TO EXERCISE FULLY THEIR RESERVED
POWERS.  SEE E.G., II ELLIOT'S DEBATES, 123, 131; III ID. 450, 464,
600; IV ID. 140, 149; I ANNALS OF CONGRESS, 432, 761, 767-768; STORY,
COMMENTARIES ON THE CONSTITUTION, SECS. 1907-1908.    FROM THE
BEGINNING AND FOR MANY YEARS THE AMENDMENT HAS BEEN CONSTRUED AS NOT
DEPRIVING THE NATIONAL GOVERNMENT OF AUTHORITY TO RESORT TO ALL MEANS
FOR THE EXERCISE OF A GRANTED POWER WHICH ARE APPROPRIATE AND PLAINLY
ADAPTED TO THE PERMITTED END.  MARTIN V. HUNTER'S LESSEE, 1 WHEAT. 
304, 324, 325; MCCULLOCH V. MARYLAND, SUPRA, 405, 406; GORDON V. UNITED
STATES, 117 U.S. 697, 705; LOTTERY CASE, SUPRA; NORTHERN SECURITIES CO.
V. UNITED STATES, SUPRA, 344-345; EVERARD'S BREWERIES V. DAY, SUPRA,
558; UNITED STATES V. SPRAGUE, 282 U.S. 716, 733; SEE UNITED STATES V.
THE BRIGANTINE WILLIAM, 28 FED. CAS. NO. 16,700, P. 622.  WHATEVER
DOUBTS MAY HAVE ARISEN OF THE SOUNDNESS OF THAT CONCLUSION, THEY HAVE
BEEN PUT AT REST BY THE DECISIONS UNDER THE SHERMAN ACT AND THE
NATIONAL LABOR RELATIONS ACT WHICH WE HAVE CITED.  SEE ALSO, ASHWANDER
V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 330-331; WRIGHT V. UNION
CENTRAL INS. CO., 304 U.S. 502, 516. 

VALIDITY OF THE REQUIREMENT OF RECORDS OF WAGES AND HOURS.  SEC.
15(A)(5) AND SEC. 11(C).  THESE REQUIREMENTS ARE INCIDENTAL TO THOSE
FOR THE PRESCRIBED WAGES AND HOURS, AND HENCE VALIDITY OF THE FORMER
TURNS ON VALIDITY OF THE LATTER.  SINCE, AS WE HAVE HELD, CONGRESS MAY
REQUIRE PRODUCTION FOR INTERSTATE COMMERCE TO CONFORM TO THOSE
CONDITIONS, IT MAY REQUIRE THE EMPLOYER, AS A MEANS OF ENFORCING THE
VALID LAW, TO KEEP A RECORD SHOWING WHETHER HE HAS IN FACT COMPLIED
WITH IT.  THE REQUIREMENT FOR RECORDS EVEN OF THE INTRASTATE
TRANSACTION IS AN APPROPRIATE MEANS TO THE LEGITIMATE END.  SEE
BALTIMORE & OHIO R. CO. V. INTERSTATE COMMERCE COMM'N, 221 U.S. 612;
INTERSTATE COMMERCE COMM'N V. GOODRICH TRANSIT CO., 224 U.S. 194;
CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1, 42. 

VALIDITY OF THE WAGE AND HOUR PROVISIONS UNDER THE FIFTH AMENDMENT. 
BOTH PROVISIONS ARE MINIMUM WAGE REQUIREMENTS COMPELLING THE PAYMENT OF
A MINIMUM STANDARD WAGE WITH A PRESCRIBED INCREASED WAGE FOR OVERTIME
OF "NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE" AT WHICH THE
WORKER IS EMPLOYED.  SINCE OUR DECISION IN WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379, IT IS NO LONGER OPEN TO QUESTION THAT THE FIXING
OF A MINIMUM WAGE IS WITHIN THE LEGISLATIVE POWER AND THAT THE BARE
FACT OF ITS EXERCISE IS NOT A DENIAL OF DUE PROCESS UNDER THE FIFTH
MORE THAN UNDER THE FOURTEENTH AMENDMENT.  NOR IS IT ANY LONGER OPEN TO
QUESTION THAT IT IS WITHIN THE LEGISLATIVE POWER TO FIX MAXIMUM HOURS. 
HOLDEN V. HARDY, 169 U.S. 366; MULLER V. OREGON, 208 U.S. 412; BUNTING
V. OREGON, 243 U.S. 426; BALTIMORE & OHIO R. CO. V. INTERSTATE COMMERCE
COMM'N, SUPRA. SIMILARLY THE STATUTE IS NOT OBJECTIONABLE BECAUSE
APPLIED ALIKE TO BOTH MEN AND WOMEN.  CF. BUNTING V. OREGON, 243 U.S.
426. 

THE ACT IS SUFFICIENTLY DEFINITE TO MEET CONSTITUTIONAL DEMANDS.  ONE
WHO EMPLOYS PERSONS, WITHOUT CONFORMING TO THE PRESCRIBED WAGE AND HOUR
CONDITIONS, TO WORK ON GOODS WHICH HE SHIPS OR EXPECTS TO SHIP ACROSS
STATE LINES, IS WARNED THAT HE MAY BE SUBJECT TO THE CRIMINAL PENALTIES
OF THE ACT.  NO MORE IS REQUIRED.  NASH V. UNITED STATES, 229 U.S. 373,
377. 

WE HAVE CONSIDERED, BUT FIND IT UNNECESSARY TO DISCUSS OTHER
CONTENTIONS.  REVERSED. 

FN1  SEC. 2.  (A)  THE CONGRESS HEREBY FINDS THAT THE EXISTENCE, IN
INDUSTRIES ENGAGED IN COMMERCE OR IN THE PRODUCTION OF GOODS FOR
COMMERCE, OF LABOR CONDITIONS DETRIMENTAL TO THE MAINTENANCE OF THE
MINIMUM STANDARD OF LIVING NECESSARY FOR HEALTH, EFFICIENCY, AND
GENERAL WELL-BEING OF WORKERS (1) CAUSES COMMERCE AND THE CHANNELS AND
INSTRUMENTALITIES OF COMMERCE TO BE USED TO SPREAD AND PERPETUATE SUCH
LABOR CONDITIONS AMONG THE WORKERS OF THE SEVERAL STATES; (2) BURDENS
COMMERCE AND THE FREE FLOW OF GOODS IN COMMERCE; (3) CONSTITUTES AN
UNFAIR METHOD OF COMPETITION IN COMMERCE; (4) LEADS TO LABOR DISPUTES
BURDENING AND OBSTRUCTING COMMERCE AND THE FREE FLOW OF GOODS IN
COMMERCE; AND (5) INTERFERES WITH THE ORDERLY AND FAIR MARKETING OF
GOODS IN COMMERCE. 

TRANSMISSION, OR COMMUNICATION AMONG THE SEVERAL STATES OR FROM ANY
STATE TO ANY PLACE OUTSIDE THEREOF." 

FN2  CF. ADMINISTRATOR'S OPINION, INTERPRETATIVE BULLETIN NO. 5, 1940
WAGE AND HOUR MANUAL, P. 131 ET SEQ. 

FN3  IT MAY PROHIBIT WHOLLY INTRASTATE ACTIVITIES WHICH, IF
PERMITTED, WOULD RESULT IN RESTRAINT OF INTERSTATE COMMERCE.  CORONADO
COAL CO. V. UNITED MINE WORKERS, 268 U.S. 295, 310; LOCAL 167 V. UNITED
STATES, 291 U.S. 293, 297.  IT MAY REGULATE THE ACTIVITIES OF A LOCAL
GRAIN EXCHANGE SHOWN TO HAVE AN INJURIOUS EFFECT ON INTERSTATE
COMMERCE.  CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1.  IT MAY
REGULATE INTRASTATE RATES OF INTERSTATE CARRIERS WHERE THE EFFECT OF
THE RATES IS TO BURDEN INTERSTATE COMMERCE.  HOUSTON, E. & W. TEXAS RY.
CO. V. UNITED STATES, 234 U.S. 342; RAILROAD COMMISSION OF WISCONSIN V.
CHICAGO, B. & Q.R. CO., 257 U.S. 563; UNITED STATES V. LOUISIANA, 290
U.S. 70, 74; FLORIDA V. UNITED STATES, 292 U.S. 1.  IT MAY COMPEL THE
ADOPTION OF SAFETY APPLIANCES ON ROLLING STOCK MOVING INTRASTATE
BECAUSE OF THE RELATION TO AND EFFECT OF SUCH APPLIANCES UPON
INTERSTATE TRAFFIC MOVING OVER THE SAME RAILROAD.  SOUTHERN RY. CO. V.
UNITED STATES, 222 U.S. 20.  IT MAY PRESCRIBE MAXIMUM HOURS FOR
EMPLOYEES ENGAGED IN INTRASTATE ACTIVITY CONNECTED WITH THE MOVEMENT OF
ANY TRAIN, SUCH AS TRAIN DISPATCHERS AND TELEGRAPHERS.  BALTIMORE &
OHIO R. CO. V. INTERSTATE COMMERCE COMM'N, 221 U.S. 612, 619. 
..END :












OPP COTTON MILLS V. ADMINISTRATOR, 312 U.S. 126 


NO. 330.  ARGUED DECEMBER 20, 1940.  - DECIDED FEBRUARY 3, 1941.  - 111
F.2D 23, AFFIRMED. 


1.  WAGE AND HOURS PROVISIONS OF THE FAIR LABOR STANDARDS ACT, AS
APPLIED TO MANUFACTURERS OF TEXTILE GOODS FOR INTERSTATE COMMERCE, HELD
WITHIN THE COMMERCE POWER AND CONSISTENT WITH THE FIFTH AND TENTH
AMENDMENTS.  UNITED STATES V. DARBY, ANTE, P. 100.  P. 142. 

2.  IN THE EXERTION OF ITS LEGISLATIVE POWERS, CONGRESS MAY PROVIDE
THAT ADMINISTRATIVE FINDINGS OF FACT, MADE IN CONFORMITY TO PREVIOUSLY
ADOPTED LEGISLATIVE STANDARDS AND DEFINITIONS OF CONGRESSIONAL POLICY,
SHALL BE PREREQUISITE TO THE OPERATION OF ITS STATUTORY COMMAND.  P.
144. 

THE ADOPTION OF THE DECLARED POLICY BY CONGRESS AND ITS DEFINITION OF
THE CIRCUMSTANCES IN WHICH ITS COMMAND IS TO BE EFFECTIVE, CONSTITUTE
THE PERFORMANCE, IN THE CONSTITUTIONAL SENSE, OF THE LEGISLATIVE
FUNCTION. 

3.  WHERE THE STANDARDS SET UP FOR THE GUIDANCE OF THE ADMINISTRATIVE
AGENCY, THE PROCEDURE WHICH IT IS DIRECTED TO FOLLOW, AND THE RECORD OF
ITS ACTION WHICH IS REQUIRED BY THE STATUTE TO BE KEPT, OR WHICH IS IN
FACT PRESERVED, ARE SUCH THAT CONGRESS, THE COURTS AND THE PUBLIC CAN
ASCERTAIN WHETHER THE AGENCY HAS CONFORMED TO THE STANDARDS WHICH
CONGRESS HAS PRESCRIBED, THERE IS NO FAILURE OF PERFORMANCE OF THE
LEGISLATIVE FUNCTION.  P. 144. 

4.  THE FAIR LABOR STANDARDS ACT, TO THE EXTENT THAT IT AUTHORIZES
THE ADMINISTRATOR AND THE INDUSTRY COMMITTEES APPOINTED BY HIM TO
CLASSIFY INDUSTRIES AND FIX MINIMUM WAGES, IS NOT AN UNCONSTITUTIONAL
DELEGATION OF LEGISLATIVE POWER.  PP. 142, 145. 

THE ACT DECLARES THE POLICY OF CONGRESS TO RAISE THE MINIMUM WAGE TO
THE 40 CENTS PER HOUR LIMIT "AS RAPIDLY AS ECONOMICALLY FEASIBLE
WITHOUT SUBSTANTIALLY CURTAILING EMPLOYMENT."  IT DIRECTS THAT WAGE
RATES SHALL BE DETERMINED WITH DUE REGARD TO ECONOMIC AND COMPETITIVE
CONDITIONS AND SHALL BE SUCH AS WILL NOT SUBSTANTIALLY CURTAIL
EMPLOYMENT IN THE INDUSTRY.  AS PREREQUISITES TO CLASSIFICATION WITHIN
AN INDUSTRY, THE COMMITTEE AND THE ADMINISTRATOR MUST DETERMINE THAT
CLASSIFICATION IS NECESSARY FOR THE PURPOSE OF FIXING FOR EACH CLASS
THE HIGHEST MINIMUM WAGE RATE (NOT IN EXCESS OF 40 CENTS AN HOUR) THAT
WILL NOT SUBSTANTIALLY CURTAIL EMPLOYMENT IN SUCH CLASS AND WILL NOT
GIVE A COMPETITIVE ADVANTAGE TO ANY GROUP IN THE INDUSTRY.  IN MAKING
THESE DETERMINATIONS, THE COMMITTEE AND THE ADMINISTRATOR MUST
CONSIDER, "AMONG OTHER RELEVANT FACTORS," COMPETITIVE CONDITIONS AS
AFFECTED BY TRANSPORTATION, LIVING AND PRODUCTION COSTS, AND THE WAGE
SCALE FOR COMPARABLE WORK ESTABLISHED BY COLLECTIVE BARGAINING LABOR
AGREEMENTS, AND BY EMPLOYERS WHO VOLUNTARILY MAINTAIN MINIMUM WAGE
STANDARDS IN THE INDUSTRY. 

5.  UNDER THIS ACT, SEC. 8(A)-(D), AN INDUSTRY COMMITTEE ACTS AS AN
INVESTIGATING BODY WITH DUTY TO REPORT ITS RECOMMENDATIONS TO THE
ADMINISTRATOR.  ITS REPORT IS THE BASIS OF PROCEEDINGS BEFORE THE
ADMINISTRATOR UNDER SEC. 8(D), WHICH ARE JUDICIAL IN CHARACTER WITH
PROVISIONS FOR NOTICE AND FULL HEARING.  P. 147. 

THE ISSUE TO BE DETERMINED BY THE ADMINISTRATOR UPON THE HEARING IS
WHETHER THE RECOMMENDATIONS OF THE COMMITTEE "ARE MADE IN ACCORDANCE
WITH LAW, ARE SUPPORTED BY THE EVIDENCE ADDUCED AT THE HEARING, AND,
TAKING INTO CONSIDERATION THE SAME FACTORS AS ARE REQUIRED TO BE
CONSIDERED BY THE INDUSTRY COMMITTEE, WILL CARRY OUT THE PURPOSES OF
THIS SECTION."  NO WAGE IS FIXED WHICH IS NOT RECOMMENDED BY THE
COMMITTEE, AND NOT THEN WITHOUT APPROPRIATE HEARING, FINDINGS AND ORDER
BY THE ADMINISTRATOR. 

6.  THE PRELIMINARY DEFINITION OF AN INDUSTRY MADE BY THE
ADMINISTRATOR WHEN HE APPOINTS AN INDUSTRY COMMITTEE UNDER SEC. 5(A) OF
THE ACT - DISTINGUISHED FROM THE DEFINITION TO BE MADE IN THE FINAL
ORDER FIXING THE WAGE, SEC. 8(F) - MAY BE REVISED BY HIM WHILE THE
INVESTIGATION IS PENDING BEFORE THE COMMITTEE, BUT THE COMMITTEE'S
REPORT MUST BE BASED ON THE AMENDED DEFINITION.  P. 147. 

7.  IN DEFINING THE TEXTILE INDUSTRY AS INCLUDING COTTON, SILK, AND
RAYON PRODUCTS, THE ADMINISTRATOR TOOK INTO ACCOUNT THE COMPETITIVE
INTERRELATIONSHIP OF THE FABRICS INCLUDED AND THE INTERCHANGEABILITY OF
THE LOOMS EMPLOYED IN PRODUCING THEM; AND IN EXCLUDING THE WOOLEN
INDUSTRY HE TOOK ACCOUNT OF ITS COMPETITIVE RELATIONSHIPS WITH THE
PRODUCTS INCLUDED AND THE DIFFERENT NATURE OF THE ESTABLISHMENTS, LABOR
FORCES AND WAGE STRUCTURES ASSOCIATED WITH THE TWO TYPES OF PRODUCT. 
HELD CONSISTENT WITH THE PROVISIONS AND PURPOSE OF THE STATUTE.  P.
149. 

8.  THE COMPOSITION OF THE INDUSTRY COMMITTEE IN THIS CASE SATISFIES
THE REQUIREMENTS OF SEC. 5(B) OF THE STATUTE.  P. 150. 

THE REQUIREMENT THAT THE ADMINISTRATOR GIVE "DUE REGARD" TO
GEOGRAPHICAL CONSIDERATIONS IS NOT A REQUIREMENT FOR A MATHEMATICAL
GEOGRAPHICAL APPORTIONMENT OF THE COMMITTEE.  IT CALLS FOR THE EXERCISE
OF DISCRETION BY THE ADMINISTRATOR IN SELECTING, WITH THE PURPOSES OF
THE ACT IN MIND, A COMMITTEE ON WHICH THE GEOGRAPHICALLY DISTRIBUTED
INTERESTS OF THE INDUSTRY SHALL BE FAIRLY REPRESENTED. 

9.  AN INDUSTRY COMMITTEE ENGAGED IN INVESTIGATIONS WITH A VIEW TO
RECOMMENDING A MINIMUM WAGE IS NOT REQUIRED BY THE ACT TO CONDUCT A
QUASI-JUDICIAL PROCEEDING UPON NOTICE AND HEARING.  P. 151. 

10.  THE DEMANDS OF DUE PROCESS DO NOT REQUIRE A HEARING AT THE
INITIAL STAGE, OR AT ANY PARTICULAR POINT, OR AT MORE THAN ONE POINT,
IN AN ADMINISTRATIVE PROCEEDING SO LONG AS THE REQUISITE HEARING IS
HELD BEFORE THE FINAL ORDER BECOMES EFFECTIVE.  P. 152. 

THE PROCEEDINGS BEFORE THE ADMINISTRATOR AS PROVIDED BY SEC. 8(D)
SATISFY THE REQUIREMENTS OF DUE PROCESS WITHOUT FURTHER REQUIREMENT,
WHICH THE STATUTE OMITS, OF A HEARING ON NOTICE BEFORE THE COMMITTEE. 

11.  THE COMMAND OF SEC. 8(D) THAT THE ADMINISTRATOR, AS A
PREREQUISITE TO A WAGE ORDER, FIND THAT THE RECOMMENDATIONS OF THE
COMMITTEE "ARE MADE IN ACCORDANCE WITH LAW" DOES NOT EXTEND TO A REVIEW
OF THE EVIDENCE AND HEARINGS BEFORE THE COMMITTEE OR AN INVESTIGATION
OF THE MENTAL PROCESSES BY WHICH COMMITTEE MEMBERS REACHED THEIR
CONCLUSION TO RECOMMEND THE MINIMUM WAGE, OR EXTEND BEYOND INQUIRY UPON
EVIDENCE BEFORE THE ADMINISTRATOR WHETHER THE REQUIREMENTS OF THE
STATUTE AND RULES OF THE ADMINISTRATOR AS TO THE COMPOSITION OF THE
COMMITTEE, THE DEFINITION OF THE INDUSTRY, AND THE ACTIONS REQUIRED TO
BE TAKEN BY THE COMMITTEE HAVE BEEN OBSERVED.  P. 153. 

12.  SUCH BEING THE FUNCTION OF THE COMMITTEE IT IS IMMATERIAL THAT
IN THIS CASE SUBSTITUTES WERE APPOINTED FOR TWO OF ITS MEMBERS IN THE
COURSE OF ITS DELIBERATIONS, IT NOT APPEARING THAT THEY DID NOT
CONSIDER THE EVIDENCE TAKEN AND THE PROCEEDINGS HAD BEFORE THEIR
APPOINTMENTS.  P. 153. 

13.  A PARTY WHO APPEARED BEFORE THE ADMINISTRATOR, WAS HEARD,
INTRODUCED EVIDENCE, AND WAS GIVEN OPPORTUNITY TO INTRODUCE MORE, HAS
NO GROUND TO COMPLAIN THAT NOTICE OF THE HEARING, GIVEN 40 DAYS
PREVIOUSLY AND IN CONFORMITY WITH THE STATUTE, WAS INADEQUATE.  P.
153. 

14.  PERSONS INTERESTED IN A WAGE HEARING BEFORE THE ADMINISTRATOR
ARE SUFFICIENTLY INFORMED OF THE MATTER IN ISSUE BY THE REPORT AND
RECOMMENDATION OF THE INDUSTRY COMMITTEE, UPON WHICH THE HEARING IS
BASED.  P. 153. 

15.  THERE WAS NO ERROR OR WANT OF DUE PROCESS IN PERMITTING THE
INDUSTRY COMMITTEE TO APPEAR BEFORE THE ADMINISTRATOR BY COUNSEL AND TO
OFFER EVIDENCE IN SUPPORT OF ITS RECOMMENDATIONS, OR IN PERMITTING
MEMBERS OF THE STAFF OF THE WAGE AND HOUR DIVISION TO GIVE TESTIMONY. 
P. 154. 

16.  THE EVIDENCE UPON WHICH THE ADMINISTRATOR'S FINDINGS MAY BE
BASED IS NOT LIMITED TO SUCH AS WOULD BE COMPETENT IN A COURT OF LAW. 
IT INCLUDES RELEVANT STATISTICAL AND ECONOMIC DATA IN PUBLISHED REPORTS
OF INVESTIGATIONS BY GOVERNMENTAL AGENCIES.  P. 154. 

IN A COURT OF LAW IF EVIDENCE OF THIS CHARACTER IS ADMITTED WITHOUT
OBJECTION IT MUST BE ACCORDED "ITS NATURAL PROBATIVE EFFECT AS IF IT
WERE IN LAW ADMISSIBLE." 

OPP COTTON MILLS, INC., ET AL. V. ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION OF THE DEPARTMENT OF LABOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 311 U.S. 631, TO REVIEW A JUDGMENT SUSTAINING AN ORDER
FIXING A UNIFORM MINIMUM WAGE FOR THE TEXTILE INDUSTRY UNDER THE FAIR
LABOR STANDARDS ACT.  THE PROCEEDING IN THE COURT BELOW WAS BEGUN,
PURSUANT TO SEC. 10 OF THE STATUTE, BY THE PETITION OF OPP COTTON
MILLS, INC., TO HAVE THE ORDER SET ASIDE, AND FOR OTHER RELIEF. 
NUMEROUS OTHER MANUFACTURERS OF COTTON GOODS BECAME PARTIES BY
INTERVENTION. 

THE WAGE ORDER IS VOID BECAUSE:  (1) THE INDUSTRY COMMITTEE WAS NOT
CONSTITUTED IN ACCORDANCE WITH THE REQUIREMENTS OF THE ACT; (2) THE
DEFINITION OF THE TEXTILE INDUSTRY WAS NOT SEASONABLY MADE IN
COMPLIANCE WITH THE ACT; (3) THE COMMITTEE DID NOT PROCEED IN
ACCORDANCE WITH THE REQUIREMENTS OF THE CONSTITUTION AND OF THE ACT;
AND (4) THE PROCEDURE FOLLOWED BY THE COMMITTEE AND THE ADMINISTRATOR
DID NOT AFFORD A FULL AND FAIR HEARING AS REQUIRED BY DUE PROCESS OF
LAW.  MORGAN V. UNITED STATES, 298 U.S. 468; 304 U.S. 1, 23; UNITED
STATES V. MORGAN, 307 U.S. 183; OHIO BELL TELEPHONE CO. V. PUBLIC
UTIL.  COMM'N, 301 U.S. 292. 

THE WAGE ORDER IS VOID BECAUSE THE ADMINISTRATOR'S FINDINGS THAT THE
PROPOSED MINIMUM WILL NOT SUBSTANTIALLY CURTAIL EMPLOYMENT, OR GIVE A
COMPETITIVE ADVANTAGE TO ANY GROUP, ARE NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE.  MORRIS V. HARMER, 7 PET. 554; FLORIDA V. UNITED STATES, 282
U.S. 194; PANAMA REFINING CO. V. RYAN, 293 U.S. 388; NATIONAL LABOR
RELATIONS BOARD V. BELL OIL & GAS CO., 98 F.2D 406; SOUTH ALABAMA CO.
V. COMMISSIONER, 104 F.2D 27. 

THE GENERAL CONCLUSIONS OF THE ADMINISTRATOR AND THE ESTABLISHMENT OF
A UNIFORM MINIMUM - WITHOUT CLASSIFICATIONS OR DIFFERENTIALS - WERE
CONTRARY TO LAW AND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 

THE ACT IS BEYOND THE POWER OF CONGRESS, BECAUSE IT USURPS POWER
RESERVED TO THE STATES BY THE TENTH AMENDMENT.  BAILEY V. DREXEL
FURNITURE CO., 259 U.S. 20; COE V. ERROL, 116 U.S. 517; CHAMPLIN
REFINING CO. V. CORPORATION COMM'N, 286 U.S. 210; CARTER V. CARTER COAL
CO., 298 U.S. 238; COLLINS V. NEW HAMPSHIRE, 171 U.S. 30; CHASSANIOL V.
GREENWOOD, 291 U.S. 584; DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518,
629; HAMMER V. DAGENHART, 247 U.S. 251; HEISLER V. THOMAS COLLIERY, 260
U.S. 245; KIDD V. PEARSON, 128 U.S. 1; OLIVER IRON MINING CO. V. LORD,
262 U.S. 172; PANAMA REFINING CO. V. RYAN, 293 U.S. 388; RICKERT RICE
MILLS V. FONTENOT, 297 U.S. 110; SCHECHTER POULTRY CO. V. UNITED
STATES, 295 U.S. 495; UNITED STATES V. OHIO OIL CO., 234 U.S. 548;
UNITED STATES V. BUTLER, 297 U.S. 1. 

THE ACT IS NOT JUSTIFIED BY THE COMMERCE CLAUSE.  BACON V. ILLINOIS,
227 U.S. 504; BOARD OF TRADE V. OLSEN, 262 U.S. 1; COE V. ERROL, SUPRA;
CRUTCHER V. KENTUCKY, 141 U.S. 47; CARTER V. CARTER COAL CO., SUPRA;
CORONADO COAL CO. V. UNITED MINE WORKERS, 268 U.S. 295; DARTMOUTH
COLLEGE V. WOODWARD, SUPRA; DELAWARE, L. & W. R. CO. V. YARKONIS, 238
U.S. 439; GIBBONS V. OGDEN, 9 WHEAT.  1; HAMMER V. DAGENHART, SUPRA;
HOKE V. UNITED STATES, 227 U.S. 308; KIDD V. PEARSON, SUPRA; KENTUCKY
WHIP & COLLAR CO. V. ILLINOIS CENTRAL R. CO., SUPRA; LOTTERY CASE, 188
U.S. 321; MCDERMOTT V. WISCONSIN, 228 U.S. 115; MULFORD V. SMITH, 307
U.S. 38; MILK CONTROL BOARD V. EISENBERG FARM PRODUCTS, 306 U.S. 346;
NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN CO., 301 U.S. 1, 37;
OLD DEARBORN CO. V. SEAGRAM DISTILLING CORP., 299 U.S. 183; SCHECHTER
POULTRY CO. V. UNITED STATES, SUPRA; SECOND EMPLOYERS' LIABILITY CASES,
223 U.S. 1; STAFFORD V. WALLACE, 258 U.S. 495; SANTA CRUZ FRUIT PACKING
CO. V. NATIONAL LABOR RELATIONS BOARD, 303 U.S. 453; SUNSHINE
ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381; TEXAS & PACIFIC RY. CO. V.
UNITED STATES, 234 U.S. 342; UNITED STATES V. ROCK ROYAL COOPERATIVE,
307 U.S. 533; UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344;
WEBER V. FRIED, 239 U.S. 325. 

THE ACT UNCONSTITUTIONALLY DELEGATES LEGISLATIVE POWER TO THE
ADMINISTRATOR.  MULFORD V. SMITH, SUPRA; PANAMA REFINING CO. V. RYAN,
SUPRA; SCHECHTER POULTRY CO. V. UNITED STATES, SUPRA; UNITED STATES V.
ROCK ROYAL COOPERATIVE, SUPRA. 

THE ACT DENIES TO THESE LITIGANTS DUE PROCESS OF LAW IN CONTRAVENTION
OF THE FIFTH AMENDMENT.  ADAIR V. UNITED STATES, 208 U.S. 161; ADKINS
V. CHILDREN'S HOSPITAL, 261 U.S. 525; CHICAGO, B. & Q.R. CO. V.
CHICAGO, 166 U.S. 226; COPPAGE V. KANSAS, 236 U.S. 1; HOME TELEPHONE
CO. V. LOS ANGELES, 227 U.S. 278; LAWTON V. STEEL, 152 U.S. 133;
LOUISVILLE BANK V. RADFORD, 295 U.S. 555; MOREHEAD V. NEW YORK, 298
U.S. 587; MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312;
MURRAY V. HOBOKEN CO., 18 HOW.  272; UNITED STATES V. CHICAGO, M., ST.
P. & P.R. CO., 282 U.S. 311; WEST COAST HOTEL CO. V. PARRISH, 300 U.S.
379; WILSON V. NEW, 243 U.S. 332. 

WHETHER A SUBJECT HAS AN IMPACT UPON MANY STATES OR IS "PURELY
INTERNAL" IS A PRACTICAL QUESTION TO BE DECIDED ON THE BASIS OF FACTS,
NOT ON PREDILECTIONS FOR LOCAL OR FOR CENTRAL GOVERNMENT.  PETITIONERS
DO NOT DENY THE FACTS UPON WHICH THE GOVERNMENT RELIES TO SHOW THE
RELATIONSHIP BETWEEN INTERSTATE COMMERCE AND THE SUBJECT REGULATED;
THEIR RELIANCE UPON A THEORETICAL STANDARD OF DISTRIBUTION OF POWERS IS
BESIDE THE POINT. 

THE ACT CONTAINS NO INVALID DELEGATION.  SUNSHINE ANTHRACITE COAL CO.
V. ADKINS, 310 U.S. 381; MULFORD V. SMITH, 307 U.S. 38; HAMPTON & CO.
V. UNITED STATES, 276 U.S. 394. 

THE PROCEDURE BEFORE THE INDUSTRY COMMITTEE AND THE ADMINISTRATOR WAS
PROPER UNDER THE STATUTE AND THE CONSTITUTION. 

THE COMMITTEE IS NOT REQUIRED TO HOLD A HEARING.  NEVERTHELESS, IT
MADE A THOROUGH INVESTIGATION.  THE RECORD SHOWS THAT ABOUT 130
REPRESENTATIVE PERSONS AND ORGANIZATIONS WERE INVITED TO APPEAR; AND
THAT ABOUT 200 PERSONS, REPRESENTING ORGANIZATIONS OF LARGE MEMBERSHIP,
DID APPEAR BEFORE THE COMMITTEE OR ITS SUBCOMMITTEES. 

INASMUCH AS THE TESTIMONY BEFORE THE COMMITTEE IS NOT INCLUDED IN THE
PRINTED RECORD, THE QUESTION WHETHER THE COMMITTEE'S REPORT IS PROPERLY
SUPPORTED COULD NOT BE REVIEWED BY THIS COURT EVEN IF THE COMMITTEE
WERE REQUIRED TO HOLD A FORMAL HEARING. 

THE COMMITTEE'S REPORT COMPLETELY ANSWERS THE ARGUMENT THAT THE
COMMITTEE DID NOT CONSIDER THE FACTORS ENUMERATED IN THE STATUTE. 

THE ADMINISTRATOR'S FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THREE TYPES OF QUESTIONS ARE PRESENTED BY THE PETITION FOR CERTIORARI
IN THIS CASE: 

FIRST, WHETHER THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060,
IS AUTHORIZED BY THE COMMERCE CLAUSE, VIOLATES THE TENTH AMENDMENT AND
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT AND IS AN
UNCONSTITUTIONAL DELEGATION OF THE LEGISLATIVE POWER OF CONGRESS TO THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR,
APPOINTED PURSUANT TO SEC. 4(A) OF THE ACT. 

SECOND, WHETHER AN ORDER OF THE ADMINISTRATOR PRESCRIBING A MINIMUM
WAGE IN AN INDUSTRY IS UNAUTHORIZED BY THE STATUTE AND INVALID BECAUSE
THE PROCEDURE OF THE ADMINISTRATOR AND AN INDUSTRY COMMITTEE APPOINTED
BY HIM PURSUANT TO SEC. 5 OF THE ACT, WHICH RESULTED IN THE ORDER, IS
UNAUTHORIZED AND VIOLATES THE FIFTH AMENDMENT. 

THIRD, WHETHER THE ORDER OF THE ADMINISTRATOR IS INVALID BECAUSE HIS
FINDINGS ON WHICH THE ORDER IS BASED ARE WITHOUT THE SUPPORT OF
SUBSTANTIAL EVIDENCE.  THE CHALLENGED FINDINGS ARE THAT THE MINIMUM
WAGE ESTABLISHED BY THE ORDER WILL NOT SUBSTANTIALLY CURTAIL
EMPLOYMENT, AND THAT A CLASSIFICATION WITHIN THE INDUSTRY IS
UNNECESSARY FOR THE PURPOSE OF FIXING, FOR EACH CLASSIFICATION WITHIN
IT, THE HIGHEST MINIMUM WAGE WHICH WILL NOT SUBSTANTIALLY CURTAIL
EMPLOYMENT IN SUCH CLASSIFICATION AND WILL NOT GIVE ANY COMPETITIVE
ADVANTAGE TO ANY GROUP IN THE INDUSTRY. 

PETITIONER, OPP COTTON MILLS, INC., AN ALABAMA CORPORATION SUBJECT TO
THE FAIR LABOR STANDARDS ACT, ALLEGING THAT IT WAS AGGRIEVED BY AN
ORDER OF RESPONDENT, THE ADMINISTRATOR, BROUGHT THE PRESENT PROCEEDING
IN THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT PURSUANT TO SEC.
10 OF THE ACT, TO REVIEW AND SET ASIDE THE ORDER FIXING A UNIFORM 32
1/2 CENTS PER HOUR MINIMUM WAGE FOR THE TEXTILE INDUSTRY, AND FOR OTHER
RELIEF.  SO FAR AS NOW RELEVANT PETITIONERS CHALLENGED THE VALIDITY OF
THE ACT AND THE ORDER UPON THE GROUNDS ALREADY MENTIONED.  THE COURT OF
APPEALS SUSTAINED THE ORDER.  111 F.2D 23.  WE GRANTED CERTIORARI, 311
U.S. 631, ON A PETITION RAISING THE SAME QUESTIONS CONCERNING THE
VALIDITY OF THE ORDER, WHICH WE DEEM OF PUBLIC IMPORTANCE IN THE
ADMINISTRATION OF THE ACT. 

THE GENERAL SCOPE OF THE ACT AND THE PROVISIONS OF SEC. 15(A)(1)(2)
AND (5) AND SECS. 6 AND 7, PROHIBITING THE MANUFACTURE FOR AND SHIPMENT
IN INTERSTATE COMMERCE OF GOODS PRODUCED FOR THE COMMERCE BY EMPLOYEES
EMPLOYED AT LESS THAN THE PRESCRIBED MINIMUM WAGE OR MORE THAN THE
PRESCRIBED MAXIMUM HOURS WITHOUT PAYMENT OF THE REQUIRED OVERTIME WAGE,
HAVE BEEN DISCUSSED IN UNITED STATES V. DARBY, ANTE, P. 100.  IT IS
UNNECESSARY TO REPEAT THAT DISCUSSION HERE. 

WE ARE HERE CONCERNED WITH SEC. 5(A), SEC. 6(A)(4), AND SEC. 8, UNDER
WHICH THE PROCEEDINGS WERE HAD WHICH RESULTED IN THE CHALLENGED ORDER
OF THE ADMINISTRATOR.  THESE SECTIONS READ TOGETHER SET UP AN
ADMINISTRATIVE PROCEDURE FOR ESTABLISHING A MINIMUM WAGE IN PARTICULAR
INDUSTRIES GREATER THAN THE STATUTORY MINIMUM PRESCRIBED BY SEC. 6, BUT
NOT IN EXCESS OF 40 CENTS AN HOUR, SUCH INCREASE OVER THE STATUTORY
MINIMUM TO BE FIXED FOR ANY INDUSTRY SUBJECT TO THE ACT BY THE
ADMINISTRATOR IN COLLABORATION WITH AN INDUSTRY COMMITTEE. 

APPOINT AN INDUSTRY COMMITTEE FOR EACH INDUSTRY ENGAGED IN INTERSTATE
COMMERCE OR IN THE PRODUCTION OF GOODS FOR THE COMMERCE; THAT,
SUBSECTION (B), THE COMMITTEE SHALL INCLUDE PERSONS REPRESENTING THE
PUBLIC, ONE OF WHOM SHALL BE DESIGNATED AS CHAIRMAN, A LIKE NUMBER
REPRESENTING EMPLOYEES IN THE INDUSTRY, A LIKE NUMBER REPRESENTING
EMPLOYERS IN THE INDUSTRY, AND DIRECTS THAT "IN THE APPOINTMENT OF THE
PERSONS REPRESENTING EACH GROUP, THE ADMINISTRATOR SHALL GIVE DUE
REGARD TO THE GEOGRAPHICAL REGIONS IN WHICH THE INDUSTRY IS CARRIED
ON"; THAT, SUBSECTION (D), THE ADMINISTRATOR SHALL SUBMIT TO THE
COMMITTEE FROM TIME TO TIME AVAILABLE DATA ON MATTERS REFERRED TO IT,
SHALL CAUSE TO BE BROUGHT BEFORE THE COMMITTEE IN CONNECTION WITH SUCH
MATTERS ANY WITNESSES WHOM HE DEEMS MATERIAL, AND THAT THE COMMITTEE
MAY SUMMON OTHER WITNESSES OR CALL UPON THE ADMINISTRATOR TO FURNISH
ADDITIONAL INFORMATION TO AID IT IN ITS DELIBERATIONS. 

THE SECTION THE MINIMUM WAGE SHALL BE "NOT LESS THAN THE RATE (NOT IN
EXCESS OF 40 CENTS AN HOUR) PRESCRIBED IN THE APPLICABLE ORDER OF THE
ADMINISTRATOR ISSUED UNDER SECTION 8."  SECTION 8(A) PRESCRIBES THE
PROCEDURE TO BE FOLLOWED BY THE ADMINISTRATOR AND INDUSTRY COMMITTEE IN
ESTABLISHING THE MINIMUM WAGE AUTHORIZED BY SEC. 6(A)(4).  IT PROVIDES
THAT WITH THE VIEW TO CARRYING OUT THE POLICY OF THE ACT "BY REACHING,
AS RAPIDLY AS IS ECONOMICALLY FEASIBLE WITHOUT SUBSTANTIALLY CURTAILING
EMPLOYMENT, THE OBJECTIVE OF A UNIVERSAL MINIMUM WAGE OF 40 CENTS AN
HOUR IN EACH INDUSTRY" SUBJECT TO THE ACT, THE ADMINISTRATOR "SHALL
FROM TIME TO TIME CONVENE THE INDUSTRY COMMITTEE FOR EACH SUCH
INDUSTRY" WHICH "SHALL  ...  RECOMMEND THE MINIMUM RATE OR RATES OF
WAGES TO BE PAID UNDER SECTION 6 BY EMPLOYERS" SUBJECT TO THE ACT "IN
SUCH INDUSTRY OR CLASSIFICATIONS THEREIN." 

UPON THE ADMINISTRATOR'S REFERRING TO THE COMMITTEE THE QUESTION OF
MINIMUM WAGE RATES IN AN INDUSTRY, SEC. 8(B) REQUIRES IT TO
"INVESTIGATE CONDITIONS IN THE INDUSTRY," AUTHORIZES IT OR A
SUBCOMMITTEE TO "HEAR SUCH WITNESSES AND RECEIVE SUCH EVIDENCE AS MAY
BE NECESSARY OR APPROPRIATE TO ENABLE THE COMMITTEE TO PERFORM ITS
DUTIES AND FUNCTIONS" UNDER THE ACT AND REQUIRES THE COMMITTEE TO
"RECOMMEND TO THE ADMINISTRATOR THE HIGHEST MINIMUM WAGE RATES FOR THE
INDUSTRY WHICH IT DETERMINES, HAVING DUE REGARD TO ECONOMIC AND
COMPETITIVE CONDITIONS, WILL NOT SUBSTANTIALLY CURTAIL EMPLOYMENT IN
THE INDUSTRY."  SUBSECTION (C) REQUIRES THE COMMITTEE FOR ANY INDUSTRY
TO "RECOMMEND SUCH REASONABLE CLASSIFICATIONS WITHIN ANY INDUSTRY AS IT
DETERMINES TO BE NECESSARY FOR THE PURPOSE OF FIXING FOR EACH
CLASSIFICATION WITHIN SUCH INDUSTRY THE HIGHEST MINIMUM WAGE RATE (NOT
IN EXCESS OF 40 CENTS AN HOUR) WHICH (1) WILL NOT SUBSTANTIALLY CURTAIL
EMPLOYMENT IN SUCH CLASSIFICATION AND (2) WILL NOT GIVE A COMPETITIVE
ADVANTAGE TO ANY GROUP IN THE INDUSTRY, AND SHALL RECOMMEND FOR EACH
CLASSIFICATION IN THE INDUSTRY THE HIGHEST MINIMUM WAGE RATE WHICH THE
COMMITTEE DETERMINES WILL NOT SUBSTANTIALLY CURTAIL EMPLOYMENT IN SUCH
CLASSIFICATION."  IT FURTHER DIRECTS THAT "NO CLASSIFICATION SHALL BE
MADE, AND NO MINIMUM WAGE RATE SHALL BE FIXED, SOLELY ON A REGIONAL
BASIS, BUT THE INDUSTRY COMMITTEE AND THE ADMINISTRATOR SHALL CONSIDER
AMONG OTHER RELEVANT FACTORS THE FOLLOWING:    "(1)  COMPETITIVE
CONDITIONS AS AFFECTED BY TRANSPORTATION, LIVING, AND PRODUCTION
COSTS; 

"(2)  THE WAGES ESTABLISHED FOR WORK OF LIKE OR COMPARABLE CHARACTER
BY COLLECTIVE LABOR AGREEMENTS NEGOTIATED BETWEEN EMPLOYERS AND
EMPLOYEES BY REPRESENTATIVES OF THEIR OWN CHOOSING; AND 

"(3)  THE WAGES PAID FOR WORK OF LIKE OR COMPARABLE CHARACTER BY
EMPLOYERS WHO VOLUNTARILY MAINTAIN MINIMUM-WAGE STANDARDS IN THE
INDUSTRY." 

BY SEC. 8(D) AFTER THE INDUSTRY COMMITTEE FILES ITS REPORT WITH THE
ADMINISTRATOR HE, "AFTER DUE NOTICE TO INTERESTED PERSONS, AND GIVING
THEM AN OPPORTUNITY TO BE HEARD, SHALL BY ORDER APPROVE AND CARRY INTO
EFFECT THE RECOMMENDATIONS CONTAINED IN SUCH REPORT, IF HE FINDS THAT
THE RECOMMENDATIONS ARE MADE IN ACCORDANCE WITH LAW, ARE SUPPORTED BY
THE EVIDENCE ADDUCED AT THE HEARING, AND, TAKING INTO CONSIDERATION THE
SAME FACTORS AS ARE REQUIRED TO BE CONSIDERED BY THE INDUSTRY
COMMITTEE, WILL CARRY OUT THE PURPOSES OF THIS SECTION."  OTHERWISE THE
ADMINISTRATOR IS REQUIRED TO DISAPPROVE THE RECOMMENDATIONS OF THE
COMMITTEE AND AGAIN REFER THE MATTER TO THE COMMITTEE OR TO ANOTHER
COMMITTEE FOR THE INDUSTRY WHICH HE MAY APPOINT FOR THAT PURPOSE. 
SUBSECTION (F) PROVIDES AMONG OTHER THINGS THAT THE WAGE ORDERS OF THE
ADMINISTRATOR "SHALL DEFINE THE INDUSTRIES AND CLASSIFICATIONS THEREIN
TO WHICH THEY ARE TO APPLY" AND SUBSECTION (G) PROVIDES THAT "DUE
NOTICE OF ANY HEARING PROVIDED FOR IN THE SECTION SHALL BE GIVEN BY
PUBLICATION IN THE FEDERAL REGISTER AND BY SUCH OTHER MEANS AS THE
ADMINISTRATOR DEEMS REASONABLY CALCULATED TO GIVE GENERAL NOTICE TO
INTERESTED PERSONS." 

AS APPEARS FROM HIS FINDINGS IN SUPPORT OF THE ORDER, THE
ADMINISTRATOR, ON SEPTEMBER 13, 1938, APPOINTED INDUSTRY COMMITTEE NO.
1 FOR THE TEXTILE INDUSTRY, THAT INDUSTRY BEING SO DEFINED BY THE ORDER
OF APPOINTMENT AS TO INCLUDE THE MANUFACTURE OF COTTON, SILK, RAYON AND
OTHER PRODUCTS.  SEVEN PERSONS REPRESENTING THE PUBLIC, SEVEN
REPRESENTING EMPLOYERS IN THE INDUSTRY, AND SEVEN REPRESENTING
EMPLOYEES WERE APPOINTED TO THE COMMITTEE.  UPON REQUEST OF THE
ADMINISTRATOR AT THE COMMITTEE'S FIRST MEETING IN OCTOBER, 1938,
SUBCOMMITTEES WERE APPOINTED FOR THE PURPOSE OF CONSIDERING PRECISELY
WHERE THE LINE SHOULD BE DRAWN BETWEEN THE TEXTILE AND SOME RELATED
INDUSTRIES NOT INCLUDED IN THE DEFINITION ADOPTED.  BEFORE THE
COMMITTEE CONCLUDED ITS DELIBERATIONS ON THE RECOMMENDED WAGE ORDER THE
ADMINISTRATOR MODIFIED THE DEFINITION IN CERTAIN RESPECTS NOT NOW
MATERIAL. 

AT A MEETING IN DECEMBER, 1938, THE COMMITTEE HEARD WITNESSES AND
RECEIVED BRIEFS AND MEMORANDA FROM NUMEROUS INTERESTED PARTIES. 
STATISTICAL AND ECONOMIC STUDIES BY THE BUREAU OF LABOR STATISTICS IN
THE ECONOMIC SECTION OF THE WAGE AND HOUR DIVISION HAD BEEN PREVIOUSLY
SUBMITTED.  THE COMMITTEE THEN DESIGNATED ANOTHER SUBCOMMITTEE TO
GATHER ADDITIONAL INFORMATION AND HEAR SUCH TESTIMONY AS IT DEEMED
NECESSARY TO ENABLE THE COMMITTEE TO ARRIVE AT A WAGE RECOMMENDATION. 
THIS SUBCOMMITTEE OBTAINED FURTHER ECONOMIC DATA AND HEARD ADDITIONAL
WITNESSES INCLUDING REPRESENTATIVES OF THE AMERICAN ASSOCIATION OF
COTTON MANUFACTURERS OF WHICH PETITIONER IS A MEMBER. 

ON MARCH 21, 1939, AFTER EXTENDED DISCUSSION AND DELIBERATION, THE
COMMITTEE, BY A VOTE OF THIRTEEN TO SIX, ADOPTED A RESOLUTION WHICH
FIXED TENTATIVELY A MINIMUM WAGE OF 32 1/2 CENTS AN HOUR AMOUNTING TO
$13 PER FORTY-HOUR WEEK OR $676 FOR 52 WEEKS, AS THE RATE TO BE
RECOMMENDED TO THE ADMINISTRATOR.  AT THIS MEETING THE COMMITTEE
REJECTED PROPOSALS TO ESTABLISH CLASSIFICATIONS IN THE INDUSTRY AND
WAGE DIFFERENTIALS AMONG THE CLASSES.  A SUBCOMMITTEE WAS APPOINTED TO
DRAFT A REPORT, AND ON MAY 22ND AND 23RD, AFTER THE ADMINISTRATOR HAD
AGAIN MODIFIED THE DEFINITION OF THE INDUSTRY, THE COMMITTEE AGAIN
APPROVED BY THE SAME VOTE AS BEFORE THE 32 1/2 CENTS MINIMUM WAGE.  THE
REPORT WAS ACCEPTED AND SIGNED, THE MINORITY FILING TWO REPORTS IN
OPPOSITION TO THE RECOMMENDATION.  THE REPORT DETAILED THE PROCEEDINGS
OF THE COMMITTEE, ANALYZED THE EVIDENCE AND DATA UPON WHICH THE
COMMITTEE RELIED IN MAKING ITS RECOMMENDATION, GAVE SPECIAL
CONSIDERATION TO THE QUESTION WHETHER THE WAGE FIXED WOULD CURTAIL
EMPLOYMENT IN THE INDUSTRY GENERALLY AND IN THE SOUTHERN COTTON MILLS
IN PARTICULAR, AND TO THE PROBLEM OF CLASSIFICATION.  IT CONCLUDED THAT
"NO REASONABLY EFFICIENT ENTERPRISE IN THE TEXTILE INDUSTRY NEED FEAR
THE RESULT OF THE MODEST WAGE STANDARD RECOMMENDED FOR THE INDUSTRY,"
AND THAT THE DATA BEFORE IT "DID NOT WARRANT ANY REGIONAL" OR OTHER
"CLASSIFICATION." 

ON MAY 27TH THE ADMINISTRATOR GAVE NOTICE IN THE FEDERAL REGISTER
WHICH WAS ALSO ISSUED TO THE PRESS AND PUBLISHED IN MANY NEWSPAPERS, OF
A PUBLIC HEARING ON THE RECOMMENDATIONS OF THE COMMITTEE.  AT THE
HEARING WHICH COMMENCED ON JUNE 19, 1939, AND WAS CONCLUDED ON JULY
11TH, MORE THAN 135 WITNESSES WERE HEARD, OVER 3,300 PAGES OF TESTIMONY
WERE TAKEN AND EIGHT VOLUMES OF EXHIBITS WERE SUBMITTED; ORAL ARGUMENTS
WERE HEARD BY THE ADMINISTRATOR ON JULY 25TH AND WRITTEN BRIEFS WERE
RECEIVED UNTIL AUGUST 22, 1939.  ON SEPTEMBER 29, 1939, THE
ADMINISTRATOR MADE HIS FINDINGS AND ORDER CARRYING INTO EFFECT THE
RECOMMENDATIONS OF THE COMMITTEE, EFFECTIVE OCTOBER 24, 1939, THE DATE
ON WHICH PURSUANT TO SEC. 6(A)(2) A MINIMUM WAGE OF 30 CENTS PER HOUR
FOR ALL EMPLOYEES SUBJECT TO THE ACT BECAME EFFECTIVE. 

THE INDUSTRY, AS DEFINED BY THE ORDER, INCLUDES BROADLY THE
MANUFACTURE OF YARNS AND FABRICS OF COTTON AND COMPETING MATERIAL SUCH
AS RAYON AND SILK, AND OF THOSE FINISHED PRODUCTS SUCH AS SHEETS,
TOWELS AND NAPKINS WHICH ARE NORMALLY MANUFACTURED IN THE FABRIC
WEAVING MILLS.  THE ADMINISTRATOR FOUND THAT THE BASIC CONSIDERATIONS
IN DETERMINING WHICH MANUFACTURING PROCESSES WERE TO BE INCLUDED WITHIN
THE DEFINITION WERE COMPETITIVE INTERRELATIONSHIPS, CONVERTIBILITY OF
LOOMS AND THE OPERATIONS NORMALLY CARRIED ON BY TEXTILE MILLS. 

ALTHOUGH THE ADMINSTRATOR WAS OF OPINION THAT THE QUESTION OF THE
COMPOSITION OF THE INDUSTRY COMMITTEE WAS NOT PROPERLY BEFORE HIM FOR
DETERMINATION, HE REVIEWED THE EVIDENCE AND CONCLUDED THAT THE MEMBERS
HAD BEEN CHOSEN WITH DUE REGARD TO THE GEOGRAPHICAL REGIONS IN WHICH
THE INDUSTRY IS CARRIED ON AND THAT THE COMMITTEE HAD CONSIDERED THE
FACTORS SET FORTH IN SEC. 8 OF THE ACT AND HAD REACHED ITS
RECOMMENDATION IN ACCORDANCE WITH LAW. 

THE ADMINISTRATOR FOUND THAT THE 32 1/2 CENT MINIMUM WAGE WOULD
INCREASE THE AVERAGE WAGE BILL FOR THE TEXTILE INDUSTRY AS A WHOLE 4
PER CENT OVER THE 25 CENT MINIMUM IN EFFECT BEFORE OCTOBER 24, 1939,
AND 2.1 PER CENT OVER THE 30 CENT MINIMUM IN EFFECT THEREAFTER AND THAT
THE WAGE INCREASES IN THE SOUTHERN PORTION OF THE INDUSTRY WOULD BE
6.25 PER CENT AND 2.15 PER CENT OVER THE 25 AND 30 CENT MINIMUM
RESPECTIVELY.  HE FURTHER FOUND THAT SINCE THE AVERAGE LABOR COSTS DO
NOT CONSTITUTE OVER 36 PER CENT OF PRODUCTION COSTS THE MINIMUM WAGE
INCREASE WOULD INCREASE PRODUCTION COSTS SLIGHTLY OVER ONE-THIRD OF THE
PERCENTAGES OF WAGE INCREASES JUST INDICATED, AND THAT THE INCREASE IN
PRODUCTION COSTS WOULD NOT RESULT IN SUCH A RISE IN PRICES TO ULTIMATE
CONSUMERS OF THE FINISHED PRODUCT AS TO DECREASE CONSUMER DEMAND. 

FROM ALL THIS HE DREW THE CONCLUSION THAT THERE WOULD BE NO
SUBSTANTIAL CURTAILMENT OF EMPLOYMENT IN THE INDUSTRY AS A WHOLE OR IN
ITS SOUTHERN BRANCH AS A RESULT OF THE INCREASED WAGE.  IN THE CASE OF
SMALL COTTON MILLS IN THE SOUTH EMPLOYING ONLY 7 PER CENT OF THE
SOUTHERN COTTON TEXTILE WORKERS (5 PER CENT OF ALL IN THE ENTIRE COTTON
INDUSTRY), PAYING THE LOWEST WAGES, HE CONCLUDED THAT THE NEW MINIMUM
RATE AS CONTRASTED WITH THE 30 CENT STATUTORY RATE WOULD RAISE
MANUFACTURING COSTS MORE THAN THE 1.94 PER CENT AVERAGE, AND FOR THESE
MILLS THE INCREASE WOULD RANGE FROM 2.77 PER CENT TO 3.75 PER CENT.
THE ADMINSTRATOR FOUND THAT CURTAILMENT OF EMPLOYMENT EVEN IN THE MILLS
PAYING THE LOWEST WAGES WOULD BE DEPENDENT ON TOTAL COST AND THE
TECHNOLOGICAL AND GENERAL EFFICIENCY OF EACH MILL, AND THAT LOW WAGES
DO NOT NECESSARILY COINCIDE WITH A LOW DEGREE OF EFFICIENCY.  THE
ADMINISTRATOR FOUND GENERALLY THAT THE SMALL SOUTHERN MILLS ARE NOT
NECESSARILY MARGINAL OR THE LEAST PROFITABLE AND THAT, ACCEPTING THE
FIGURES SUBMITTED BY THE GROUP OF SMALL MILLS OPPOSING THE 32 1/2 CENT
MINIMUM, THE INCREASE IN LABOR COSTS FOR SUCH MILLS WOULD BE 13.5% AND
ONLY 4 PER CENT IN TOTAL MANUFACTURING COST OVER THE 25 CENT MINIMUM. 
THE INCREASE OVER THE 30 CENT MINIMUM WOULD BE SLIGHTLY OVER ONE-THIRD
OF THESE PERCENTAGES.  THE ADMINISTRATOR ALSO FOUND THAT A
MODERNIZATION PROGRAM IN THESE MILLS WOULD DISPLACE ONLY A SMALL NUMBER
OF EMPLOYEES.  FROM THESE AND OTHER FACTS DETAILED IN THE FINDINGS, THE
ADMINISTRATOR CONCLUDED THAT THERE WOULD BE NO SUBSTANTIAL CURTAILMENT
OF EMPLOYMENT EVEN IN THE GROUP OF SMALL MILLS. 

THE ADMINISTRATOR ALSO CONSIDERED THE FACTORS FOR DETERMINING WHETHER
CLASSIFICATION SHOULD BE MADE FOR WAGE DIFFERENTIALS WITHIN THE
INDUSTRY.  AFTER EXAMINING NUMEROUS STUDIES OF LIVING COSTS MADE BY THE
BUREAU OF LABOR STATISTICS OF THE DEPARTMENT OF LABOR HE CONCLUDED THAT
THE COST OF LIVING IN THE NORTH EXCEEDS THAT IN THE SOUTH BY ABOUT 4.6%
ON THE AVERAGE, AND THAT THE DIFFERENCES IN COSTS BETWEEN CITIES IN
EACH REGION GREATLY EXCEED THE DIFFERENCE BETWEEN THE TWO REGIONS AS A
WHOLE.  HE ACCORDINGLY CONCLUDED THAT LIVING COSTS DO NOT VARY
SUBSTANTIALLY OR UNIFORMLY BETWEEN REGIONS AND DO NOT AFFECT
COMPETITIVE CONDITIONS IN THE INDUSTRY.  HE FOUND THAT NORTHERN MILLS
HAD AN ADVANTAGE WITH RESPECT TO TRANSPORTATION COSTS IN SHIPPING TO
THE NEW ENGLAND STATES, BUT SOUTHERN MILLS HAD AN ADVANTAGE IN SHIPPING
TO THE MIDDLE WEST AND SOUTH, HAVING A GREAT POPULATION; THAT MANY
NORTHERN FINISHING MILLS RECEIVE UNFINISHED CLOTH FROM SOUTHERN
FACTORIES AND THUS BEAR THE DISADVANTAGE IN FREIGHT RATES FROM THE
SOUTH TO NORTHERN FINISHING MILLS AND THAT ON AN AVERAGE THE SOUTH HAS
A SLIGHT TRANSPORTATION ADVANTAGE WITH RESPECT TO COTTON COMING TO THE
MILLS THERE.  HE CONCLUDED THAT EVEN WITH THE AVERAGE FREIGHT RATES IN
THE SOUTH SOMEWHAT HIGHER THAN THE NORTH, ON THE WHOLE THE ADVANTAGES
AND DISADVANTAGES IN TRANSPORTATION COSTS IN THE TWO REGIONS WERE
APPROXIMATELY IN BALANCE AND THAT ANY REMAINING DISADVANTAGE WAS SO
SMALL AS NOT TO AFFECT COMPETITIVE CONDITIONS APPRECIABLY. 

AFTER CONSIDERING THE PROPORTION OF OBSOLESCENT MACHINERY IN NORTHERN
AND SOUTHERN MILLS, THEIR TAXES, EFFICIENCY OF WORKERS, POWER AND
CONSTRUCTION COSTS AND PROFITS, THE ADMINISTRATOR FOUND THAT THE
SOUTHERN MILLS WERE AT LEAST IN A POSITION OF EQUALITY WITH NORTHERN
MILLS IN SO FAR AS THESE FACTORS AFFECT PRODUCTION COSTS, AND THAT
AFTER THE ESTABLISHMENT OF THE 32 1/2 CENT MINIMUM THE PREVAILING
MINIMUM WAGES IN THE NORTH WOULD BE CONSIDERABLY HIGHER THAN IN THE
SOUTH.  HE CONCLUDED THAT NEITHER WAGE RATES IN COLLECTIVE LABOR
AGREEMENTS NOR WAGES PAID BY EMPLOYERS MAINTAINING VOLUNTARY MINIMUM
WAGE STANDARDS REQUIRED A CLASSIFICATION WITHIN THE INDUSTRY, AND
FINALLY HE CONCLUDED THAT THE INDUSTRY COMMITTEE'S RECOMMENDATIONS "ARE
MADE IN ACCORDANCE WITH LAW, ARE SUPPORTED BY THE EVIDENCE ADDUCED AT
THE HEARING AND, TAKING INTO CONSIDERATION THE SAME FACTORS AS ARE
REQUIRED TO BE CONSIDERED BY THE INDUSTRY COMMITTEE, THE PRESCRIBED 32
1/2 CENT WAGE WILL CARRY OUT THE PURPOSES OF SEC. 8 OF THE ACT." 

CONSTITUTIONALITY OF THE ACT.  THE OBJECTIONS THAT THE SECTIONS OF
THE ACT IMPOSING A MINIMUM WAGE AND MAXIMUM HOURS ARE NOT WITHIN THE
COMMERCE POWER AND INFRINGE THE TENTH AND FIFTH AMENDMENTS WERE
DISCUSSED AND DISPOSED OF IN OUR OPINION IN UNITED STATES V. DARBY,
SUPRA.  SINCE PETITIONERS CONCEDE THAT THEY ARE ENGAGED IN THE
MANUFACTURE OF COTTON GOODS FOR INTERSTATE COMMERCE IT IS UNNECESSARY
TO CONSIDER THESE CONTENTIONS FURTHER HERE. 

THERE REMAINS THE QUESTION WHETHER THE ACT IS AN UNCONSTITUTIONAL
DELEGATION OF THE LEGISLATIVE POWER OF CONGRESS.  PETITIONERS URGE THAT
THE STANDARDS PRESCRIBED FOR FIXING THE AUTHORIZED MINIMUM WAGES
BETWEEN 30 AND 40 CENTS PER HOUR ARE TOO VAGUE AND INDEFINITE TO ADMIT
OF ANY JUDICIAL DETERMINATION WHETHER THEY ARE WITHIN OR WITHOUT THE
STANDARDS PRESCRIBED BY CONGRESS. 

IT IS NOT SERIOUSLY URGED THAT THE POLICY AND STANDARDS OF THE
STATUTE ARE SUBJECT TO THESE CRITICISMS INDEPENDENTLY OF THE PROVISIONS
RELATING TO CLASSIFICATION.  SECTION 8 DEFINES, WITH PRECISION, THE
POLICY OF THE ACT TO RAISE THE MINIMUM WAGE TO THE 40 CENTS PER HOUR
LIMIT "AS RAPIDLY AS ECONOMICALLY FEASIBLE WITHOUT SUBSTANTIALLY
CURTAILING EMPLOYMENT" IN EACH INDUSTRY, AND THE STANDARDS OF THE
ADMINISTRATIVE ACTION APPLICABLE TO THE ADMINISTRATOR ARE THOSE MADE
APPLICABLE TO THE COMMITTEE WHICH IT IS PROVIDED "SHALL RECOMMEND TO
THE ADMINISTRATOR THE HIGHEST MINIMUM WAGE RATES FOR THE INDUSTRY WHICH
IT DETERMINES, HAVING DUE REGARD TO ECONOMIC AND COMPETITIVE
CONDITIONS, WILL NOT SUBSTANTIALLY CURTAIL EMPLOYMENT IN THE
INDUSTRY."  BUT IT IS SAID THAT APPLICATION OF THESE STANDARDS IN AN
INDUSTRY IS MADE CONTINGENT UPON THE DETERMINATION WHETHER THE INDUSTRY
IS TO BE CLASSIFIED AND IF SO, WHETHER IT IS TO BE SUBJECT TO
PARTICULAR WAGE DIFFERENTIALS, AND THAT THESE DETERMINATIONS IN TURN
DEPEND UPON FACTORS SO INADEQUATELY DEFINED AS TO AFFORD NO STANDARD OF
ADMINISTRATIVE ACTION. 

COMMITTEE AND ADMINISTRATOR ARE REQUIRED, AS PREREQUISITES FOR THE
CLASSIFICATION, TO DETERMINE THAT IT WILL NOT GIVE A COMPETITIVE
ADVANTAGE TO ANY GROUP IN THE INDUSTRY, AND THAT THE PRESCRIBED WAGE
WILL NOT SUBSTANTIALLY CURTAIL EMPLOYMENT IN EACH CLASSIFICATION, AND
IN MAKING THESE DETERMINATIONS THE COMMITTEE AND ADMINISTRATOR MUST
CONSIDER "AMONG OTHER RELEVANT FACTORS," COMPETITIVE CONDITIONS AS
AFFECTED BY TRANSPORTATION, LIVING AND PRODUCTION COSTS, AND THE WAGE
SCALE FOR COMPARABLE WORK ESTABLISHED BY COLLECTIVE BARGAINING LABOR
AGREEMENTS, AND BY EMPLOYERS WHO VOLUNTARILY MAINTAIN MINIMUM WAGE
STANDARDS IN THE INDUSTRY.    IT IS URGED THAT THE STATUTE DOES NOT
PRESCRIBE THE RELATIVE WEIGHT TO BE GIVEN TO THE SPECIFIED FACTORS OR
THE OTHER UNNAMED "RELEVANT FACTORS."  IT IS SAID THAT THIS, WITH THE
FURTHER REQUIREMENTS THAT THE PRESCRIBED WAGE IS TO BE FIXED WITH "DUE
REGARD TO ECONOMIC AND COMPETITIVE CONDITIONS"; THAT THE CLASSIFICATION
IF MADE SHALL NOT "GIVE A COMPETITIVE ADVANTAGE TO ANY GROUP IN THE
INDUSTRY," AND THAT THE PRESCRIBED WAGE MUST BE ONE FIXED "WITHOUT
SUBSTANTIALLY CURTAILING EMPLOYMENT," LEAVE THE FUNCTION WHICH THE
COMMITTEE AND ADMINISTRATOR ARE TO PERFORM SO VAGUE AND INDEFINITE AS
TO BE PRACTICALLY WITHOUT ANY CONGRESSIONAL GUIDE OR CONTROL. 

THE MANDATE OF THE CONSTITUTION THAT ALL LEGISLATIVE POWERS GRANTED
"SHALL BE VESTED" IN CONGRESS HAS NEVER BEEN THOUGHT TO PRECLUDE
CONGRESS FROM RESORTING TO THE AID OF ADMINISTRATIVE OFFICERS OR BOARDS
AS FACT-FINDING AGENCIES WHOSE FINDINGS, MADE IN CONFORMITY TO
PREVIOUSLY ADOPTED LEGISLATIVE STANDARDS OR DEFINITIONS OF
CONGRESSIONAL POLICY, HAVE BEEN MADE PREREQUISITE TO THE OPERATION OF
ITS STATUTORY COMMAND.  THE ADOPTION OF THE DECLARED POLICY BY CONGRESS
AND ITS DEFINITION OF THE CIRCUMSTANCES IN WHICH ITS COMMAND IS TO BE
EFFECTIVE, CONSTITUTE THE PERFORMANCE, IN THE CONSTITUTIONAL SENSE, OF
THE LEGISLATION FUNCTION. 

TRUE, THE APPRAISAL OF FACTS IN THE LIGHT OF THE DECLARED POLICY AND
IN CONFORMITY TO PRESCRIBED LEGISLATIVE STANDARDS, AND THE INFERENCES
TO BE DRAWN BY THE ADMINISTRATIVE AGENCY FROM THE FACTS, SO APPRAISED,
INVOLVE THE EXERCISE OF JUDGMENT WITHIN THE PRESCRIBED LIMITS.  BUT
WHERE, AS IN THE PRESENT CASE, THE STANDARDS SET UP FOR THE GUIDANCE OF
THE ADMINISTRATIVE AGENCY, THE PROCEDURE WHICH IT IS DIRECTED TO FOLLOW
AND THE RECORD OF ITS ACTION WHICH IS REQUIRED BY THE STATUTE TO BE
KEPT OR WHICH IS IN FACT PRESERVED, ARE SUCH THAT CONGRESS, THE COURTS
AND THE PUBLIC CAN ASCERTAIN WHETHER THE AGENCY HAS CONFORMED TO THE
STANDARDS WHICH CONGRESS HAS PRESCRIBED, THERE IS NO FAILURE OF
PERFORMANCE OF THE LEGISLATIVE FUNCTION. 

WHILE FACT FINDING MAY BE AND OFTEN IS A STEP IN THE LEGISLATIVE
PROCESS, THE CONSTITUTION DOES NOT REQUIRE THAT CONGRESS SHOULD FIND
FOR ITSELF EVERY FACT UPON WHICH IT BASES LEGISLATION.  "IT IS A
CONSTITUTION WE ARE EXPOUNDING" "INTENDED TO ENDURE FOR AGES TO COME,
AND, CONSEQUENTLY, TO BE ADAPTED TO THE VARIOUS CRISES OF HUMAN
AFFAIRS."  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 407, 415.  IN AN
INCREASINGLY COMPLEX SOCIETY CONGRESS OBVIOUSLY COULD NOT PERFORM ITS
FUNCTIONS IF IT WERE OBLIGED TO FIND ALL THE FACTS SUBSIDIARY TO THE
BASIC CONCLUSIONS WHICH SUPPORT THE DEFINED LEGISLATIVE POLICY IN
FIXING, FOR EXAMPLE, A TARIFF RATE, A RAILROAD RATE OR THE RATE OF
WAGES TO BE APPLIED IN PARTICULAR INDUSTRIES BY A MINIMUM WAGE LAW. 
THE CONSTITUTION, VIEWED AS A CONTINUOUSLY OPERATIVE CHARTER OF
GOVERNMENT, IS NOT TO BE INTERPRETED AS DEMANDING THE IMPOSSIBLE OR THE
IMPRACTICABLE.  THE ESSENTIALS OF THE LEGISLATIVE FUNCTION ARE THE
DETERMINATION OF THE LEGISLATIVE POLICY AND ITS FORMULATION AS A RULE
OF CONDUCT.  THOSE ESSENTIALS ARE PRESERVED WHEN CONGRESS SPECIFIES THE
BASIC CONCLUSIONS OF FACT UPON ASCERTAINMENT OF WHICH, FROM RELEVANT
DATA BY A DESIGNATED ADMINISTRATIVE AGENCY, IT ORDAINS THAT ITS
STATUTORY COMMAND IS TO BE EFFECTIVE. 

THE PRESENT STATUTE SATISFIES THOSE REQUIREMENTS.  THE BASIC FACTS TO
BE ASCERTAINED ADMINISTRATIVELY ARE WHETHER THE PRESCRIBED WAGE AS
APPLIED TO AN INDUSTRY WILL SUBSTANTIALLY CURTAIL EMPLOYMENT, AND
WHETHER TO ATTAIN THE LEGISLATIVE END THERE IS NEED FOR WAGE
DIFFERENTIALS APPLICABLE TO CLASSES IN INDUSTRY.  THE FACTORS TO BE
CONSIDERED IN ARRIVING AT THESE DETERMINATIONS, BOTH THOSE SPECIFIED
AND "OTHER RELEVANT FACTORS," ARE THOSE WHICH ARE RELEVANT TO OR HAVE A
BEARING ON THE STATUTORY OBJECTIVE.  THE FACT THAT CONGRESS ACCEPTS THE
ADMINISTRATIVE JUDGMENT AS TO THE RELATIVE WEIGHTS TO BE GIVEN TO THESE
FACTORS IN EACH CASE WHEN THAT JUDGMENT IN OTHER RESPECTS IS ARRIVED AT
IN THE MANNER PRESCRIBED BY THE STATUTE, INSTEAD OF ATTEMPTING THE
IMPOSSIBLE BY PRESCRIBING THEIR RELATIVE WEIGHT IN ADVANCE FOR ALL
CASES, IS NO MORE AN ABANDONMENT OF THE LEGISLATIVE FUNCTION THAN WHEN
CONGRESS ACCEPTS AND ACTS LEGISLATIVELY UPON THE ADVICE OF EXPERTS AS
TO SOCIAL OR ECONOMIC CONDITIONS WITHOUT REEXAMINING FOR ITSELF THE
DATA UPON WHICH THAT ADVICE IS BASED. 

MEASURED BY THIS REQUIREMENT THE PRESENT STATUTE IS NO LESS AN
EXERCISE OF THE LEGISLATIVE FUNCTION THAN WAS THE TARIFF ACT OF 1922
AUTHORIZING THE PRESIDENT TO RAISE OR LOWER TARIFF DUTIES SO AS TO
EQUALIZE THE DIFFERENCE WHICH, WITH THE AID OF THE TARIFF COMMISSION,
HE FINDS BETWEEN THE COSTS OF PRODUCTION OF DUTIABLE ARTICLES IN THIS
AND IN FOREIGN COUNTRIES, HIS DETERMINATION, TO BE BASED UPON A VARIETY
OF RELEVANT FACTORS, SOME SPECIFIED AND OTHERS NOT, FOR WHICH THE
STATUTE PRESCRIBED NO RELATIVE WEIGHT.  SEE HAMPTON & CO. V. UNITED
STATES, 276 U.S. 394; CF. NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED
STATES, 288 U.S. 294; UNITED STATES V. BUSH & CO., 310 U.S. 371.  SEE
TO THE LIKE EFFECT UNDER OTHER STATUTES INTERSTATE COMMERCE COMM'N V.
LOUISVILLE & N.R. CO., 190 U.S. 273(INTERSTATE COMMERCE ACT); MULFORD
V. SMITH, 307 U.S. 38, 48, 49(AGRICULTURAL ADJUSTMENT ACT OF 1938);
SUNSHINE ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 399(BITUMINOUS
COAL CONSERVATION ACT OF 1937); CURRIN V. WALLACE, 306 U.S. 1(FEDERAL
TOBACCO INSPECTION ACT); UNITED STATES V. ROCK ROYAL CO-OPERATIVE, 307
U.S. 533(AGRICULTURAL MARKETING AGREEMENT ACT). 

THE PROCEDURE BEFORE THE INDUSTRY COMMITTEE.  THE PROCEDURE BEFORE
THE COMMITTEE IS ASSAILED UPON THREE PRINCIPAL GROUNDS:  THAT THE
CHANGES IN DEFINITION OF THE TEXTILE INDUSTRY MADE AFTER THE
APPOINTMENT OF THE COMMITTEE RENDERED THE ORDER OF APPORTIONMENT VOID;
THAT THE ORDER DEFINING THE INDUSTRY IS ALSO INVALID BECAUSE THE
ADMINISTRATOR PLACED THE WOOLEN INDUSTRY IN A DIFFERENT INDUSTRY UNDER
A DIFFERENT COMMITTEE, RATHER THAN IN THE TEXTILE INDUSTRY INCLUDING
COTTON, SILK AND RAYON; AND THAT THE COMMITTEE WAS NOT PROPERLY
CONSTITUTED UNDER THE STATUTE BECAUSE THE ADMINISTRATOR IN SELECTING IT
DID NOT GIVE "DUE REGARD TO THE GEOGRAPHICAL REGIONS IN WHICH THE
INDUSTRY IS CARRIED ON."  CERTAIN PROCEDURES BEFORE THE COMMITTEE ARE
ALSO CHALLENGED BECAUSE THEY ARE SAID TO BE UNAUTHORIZED OR CONTRARY TO
THE STATUTE OR TO THE REQUIREMENTS OF DUE PROCESS. 

AT THE OUTSET THE DISTINCT SEPARATION OF THE FUNCTIONS TO BE
PERFORMED BY THE COMMITTEE UNDER SEC. 8(A), (B), (C), (D), FROM THAT TO
BE PERFORMED BY THE ADMINISTRATOR AFTER SUBMISSION OF THE COMMITTEE'S
REPORT, IS TO BE NOTED.  THE COMMITTEE IS REQUIRED TO BE COMPOSED OF
EQUAL NUMBERS OF REPRESENTATIVES OF THE PUBLIC, OF THE EMPLOYERS AND OF
THE EMPLOYEES IN THE INDUSTRY, SELECTED WITH DUE REGARD TO GEOGRAPHICAL
CONSIDERATIONS.  IT ACTS AS AN INVESTIGATING BODY WITH THE DUTY TO
REPORT ITS RECOMMENDATIONS TO THE ADMINISTRATOR.  ITS REPORT IS THE
BASIS OF THE PROCEEDINGS BEFORE THE ADMINISTRATOR UNDER SEC. 8(D) WHICH
ARE JUDICIAL IN CHARACTER, WITH PROVISIONS FOR NOTICE AND FULL
HEARING.  THE ISSUE TO BE DETERMINED BY THE ADMINISTRATOR UPON THE
HEARING IS WHETHER THE RECOMMENDATIONS OF THE COMMITTEE "ARE MADE IN
ACCORDANCE WITH LAW, ARE SUPPORTED BY THE EVIDENCE ADDUCED AT THE
HEARING, AND, TAKING INTO CONSIDERATION THE SAME FACTORS AS ARE
REQUIRED TO BE CONSIDERED BY THE INDUSTRY COMMITTEE, WILL CARRY OUT THE
PURPOSES OF THIS SECTION."  REVIEW OF THE ADMINISTRATOR'S ORDER FIXING
A WAGE IS HAD UNDER SEC. 10 BY PETITION TO THE CIRCUIT COURT OF APPEALS
ON THE RECORD MADE BEFORE THE ADMINISTRATOR.  THUS UNDER THE PROVISIONS
OF SEC. 8(D) NO WAGE IS FIXED WHICH IS NOT RECOMMENDED BY THE
COMMITTEE, AND NOT THEN WITHOUT APPROPRIATE HEARING, FINDINGS AND ORDER
BY THE ADMINISTRATOR. 

AS ALREADY STATED THE ADMINISTRATOR'S ORDER OF SEPTEMBER 13, 1938,
SETTING UP THE INDUSTRY COMMITTEE, DEFINED THE INDUSTRY SO AS TO
INCLUDE THE MANUFACTURE OF A VARIETY OF COTTON, SILK AND RAYON
PRODUCTS, INCLUDING THOSE MADE BY PETITIONERS, AND THROUGHOUT THE
PROCEEDINGS THEIR PRODUCTS WERE SO INCLUDED.  ON RECOMMENDATION OF THE
COMMITTEE TWO CHANGES IN THE DEFINITION WERE MADE WITH REFERENCE TO THE
INCLUSION AND EXCLUSION OF PRODUCTS WHICH WERE NEAR THE BORDERLINE OF
THE DEFINITION BEFORE THE AMENDMENT.  DECEMBER 19, 1938, THE ORDER WAS
AMENDED SO AS TO EXCLUDE KNITTED FABRICS AND TO INCLUDE OTHER PRODUCTS
SUCH AS BLANKETS AND SHEETS.  A SECOND AMENDMENT ORDERED BY THE
ADMINISTRATOR ON MAY 22, 1939, JUST BEFORE THE COMMITTEE ADOPTED ITS
REPORT, ADDED TO THE INDUSTRY THE MANUFACTURE OF MIXED PRODUCTS
CONTAINING NOT MORE THAN 45 PERCENT WOOL. 

IN ALL THIS WE CAN FIND NO FAILURE TO COMPLY WITH THE STATUTE. 
PRACTICABLE, APPOINT AN INDUSTRY COMMITTEE FOR EACH INDUSTRY" SUBJECT
TO THE ACT.  BUT IT DOES NOT DIRECT A FINAL DEFINITION OF THE INDUSTRY
TO BE MADE BEFORE THE COMMITTEE MEETS AND SUCH A REQUIREMENT PLAINLY
WOULD NOT COMPORT WITH THE PURPOSES OF THE ACT.  SECTION 8(F) PROVIDES
THAT ORDERS OF THE ADMINISTRATOR "ISSUED UNDER THIS SECTION" WHICH ARE
THE FINAL ORDERS FIXING A WAGE "SHALL DEFINE THE INDUSTRIES AND
CLASSIFICATIONS THEREIN TO WHICH THEY ARE TO APPLY."  SO FAR AS THE
DEFINITION IS OPEN TO ATTACK, IT IS UPON THE RECORD MADE BEFORE THE
ADMINISTRATOR IF IT THERE APPEARS THAT THE DEFINITION DOES NOT CONFORM
TO THE STATUTE, OR THAT THE RECOMMENDATIONS OF THE COMMITTEE WERE BASED
ON A DIFFERENT DEFINITION OF THE INDUSTRY FROM THAT FINALLY MADE AND SO
DO NOT SUPPORT AN ORDER FOR THE INDUSTRY AS DEFINED.  FN1  BUT SUBJECT
TO THESE REQUIREMENTS WHICH INSURE THAT RECOMMENDATIONS OF THE
COMMITTEE AND THE ORDER OF THE ADMINISTRATOR ARE BASED ON THE SAME
DEFINITION OF THE INDUSTRY, THERE IS NO PROVISION OF THE STATUTE
PREVENTING AMENDMENT OF THE DEFINITION WHILE THE MATTER IS PENDING
BEFORE THE COMMITTEE AND NO PURPOSE OR POLICY OF THE ACT WHICH WOULD BE
SERVED BY PRECLUDING SUCH AMENDMENTS SO LONG AS THE REPORT OF THE
COMMITTEE IS BASED ON THE AMENDED DEFINITION.  IT IS TO THE ADVANTAGE
OF THE ADMINISTRATION OF THE ACT THAT THE COMPLETENESS AND ACCURACY OF
THE DEFINITION SHOULD BE REEXAMINED AND THE DEFINITION REVISED WITH THE
AID OF THE COMMITTEE AT ANY TIME BEFORE ITS REPORT IS SUBMITTED.  WE
FIND NOTHING IN THE STATUTE TO PREVENT IT. 

THEREOF, OR GROUP OF INDUSTRIES."  IN DEFINING THE TEXTILE INDUSTRY AND
IN FIXING FOR IT A WAGE WHICH WITH DUE REGARD TO "ECONOMIC AND
COMPETITIVE CONDITIONS" WILL NOT SUBSTANTIALLY CURTAIL EMPLOYMENT IN
THE INDUSTRY IT WAS APPROPRIATE FOR THE ADMINISTRATOR TO TAKE INTO
ACCOUNT COMPETITIVE CONDITIONS.  IN DEFINING THE INDUSTRY THE
ADMINISTRATOR TOOK INTO ACCOUNT THE COMPETITIVE INTERRELATIONSHIP OF
THE FABRICS INCLUDED AND THE INTERCHANGEABILITY OF THE LOOMS EMPLOYED
IN PRODUCING THEM; AND IN EXCLUDING THE WOOLEN INDUSTRY HE TOOK ACCOUNT
OF ITS COMPETITIVE RELATIONSHIPS WITH THE PRODUCTS INCLUDED AND THE
DIFFERENT NATURE OF THE ESTABLISHMENTS, LABOR FORCES AND WAGE
STRUCTURES ASSOCIATED WITH THE TWO TYPES OF PRODUCT.  ON THE RECORD
BEFORE US, WE CANNOT SAY THAT IN SO DOING HE TRANSGRESSED ANY PROVISION
OF THE STATUTE.  NOR CAN WE SAY THAT IN APPLYING THESE TESTS HE
DEPARTED FROM ITS PURPOSE.  THE INCLUSION OF A GIVEN PRODUCT IN ONE
INDUSTRY OR ANOTHER, WHERE BOTH ARE SUBJECT TO THE ACT, PRINCIPALLY
CONCERNS CONVENIENCE IN ADMINISTERING THE ACT.  FOR THE PROVISIONS FOR
CLASSIFICATION WITH APPROPRIATE WAGE DIFFERENTIALS AFFORD AMPLE
OPPORTUNITY FOR FIXING AN APPROPRIATE WAGE WITH RESPECT TO ANY PRODUCT
WHETHER IT IS PLACED IN ONE INDUSTRY OR ANOTHER.  THERE IS NO SERIOUS
CONTENTION AND WE FIND NO BASIS FOR SAYING THAT THE EVIDENCE DOES NOT
SUPPORT THE ADMINISTRATOR'S ORDER WITH RESPECT TO EXCLUSION OF WOOL
FROM THE DEFINITION OF THE TEXTILE INDUSTRY. 

WE CONCLUDE ALSO THAT THE COMPOSITION OF THE COMMITTEE SATISFIES THE
REQUIREMENTS OF THE ACT.  THE COMMITTEE CONSISTED OF TWENTY-ONE
PERSONS, SEVEN SELECTED FROM EACH OF THE THREE GROUPS REPRESENTED.  OF
THE EMPLOYER REPRESENTATIVES FIVE WERE COTTON GOODS MANUFACTURERS, AND
FOUR OF THESE WERE FROM THE SOUTHERN STATES.  THE RAYON AND SILK
MANUFACTURERS EACH HAD ONE REPRESENTATIVE.  SINCE THESE BRANCHES OF THE
INDUSTRY ARE PREDOMINANTLY NORTHERN THEY WERE SELECTED FROM THE NORTH. 
THREE OF THE SEVEN MEMBERS REPRESENTING THE PUBLIC WERE FROM SOUTHERN
STATES, ONE WAS FROM PENNSYLVANIA AND THREE FROM THE MIDDLE WEST.  TWO
OF THE REPRESENTATIVES OF LABOR WERE FROM THE SOUTH, THREE FROM THE
NORTH AND TWO OF THEM FROM WASHINGTON, D.C.  ALL FIVE OF THE NON
SOUTHERN LABOR MEMBERS OF THE COMMITTEE WERE EXECUTIVE OFFICIALS OF OR
CONNECTED WITH LABOR ORGANIZATIONS, NATIONAL IN SCOPE, WHICH
REPRESENTED EMPLOYEES IN THE SOUTH.  THUS NINE OF THE MEMBERS OF THE
COMMITTEE WERE FROM THE SOUTH, AND THE ADMINISTRATOR COULD HAVE
CONCLUDED THAT FIVE OTHERS FAIRLY REPRESENTED THE SOUTH. 

WHILE ONLY 31 PER CENT OF THE FACTORIES IN THE INDUSTRY ARE IN THE
SOUTH, 51.5 PER CENT OF THE VALUE OF THE PRODUCT IS PRODUCED IN
SOUTHERN MILLS AND 55 PER CENT OF THE WAGE EARNERS IN THE INDUSTRY ARE
EMPLOYED BY THOSE MILLS.  PETITIONERS ARGUE THAT SINCE THE SOUTH HAD A
MATHEMATICAL PREPONDERANCE IN THE INDUSTRY THE ADMINISTRATOR WAS
REQUIRED BY THE STATUTE TO APPOINT A MAJORITY OF EACH GROUP, OR AT
LEAST A MAJORITY OF THE MEMBERS OF THE COMMITTEE FROM THAT REGION.  BUT
THE REQUIREMENT OF THE STATUTE THAT THE ADMINISTRATOR GIVE "DUE REGARD"
TO GEOGRAPHICAL CONSIDERATIONS IS NOT A REQUIREMENT FOR A MATHEMATICAL
GEOGRAPHICAL APPORTIONMENT OF THE COMMITTEE.  IT CALLS FOR THE EXERCISE
OF DISCRETION BY THE ADMINISTRATOR IN SELECTING, WITH THE PURPOSES OF
THE ACT IN MIND, A COMMITTEE ON WHICH THE GEOGRAPHICALLY DISTRIBUTED
INTERESTS OF THE INDUSTRY SHALL BE FAIRLY REPRESENTED.  AS THE RECORD
SHOWS THAT THE LOWEST WAGE SCALE PREVAILED IN THE SOUTHERN MILLS, THE
ADMINISTRATOR COULD HAVE CONCLUDED THAT A SELECTION OF A COMMITTEE, A
MAJORITY OF WHOSE MEMBERS REPRESENTED A LOW WAGE LOCALITY WOULD TEND TO
DEFEAT THE PURPOSES OF THE ACT.  THE ACT WAS ALSO INTENDED TO PROTECT
THE INTERESTS OF EMPLOYERS AND EMPLOYEES OF MILLS IN OTHER LOCALITIES
WHICH COMPETE WITH THE LOW WAGE SCALE MILLS.  WE CANNOT SAY THAT THE
ADMINISTRATOR FAILED TO GIVE "DUE REGARD" TO GEOGRAPHICAL
CONSIDERATIONS OR OTHERWISE ABUSED HIS DISCRETION IN THE SELECTION OF
THE COMMITTEE.    PETITIONERS MAKE A GREAT VARIETY OF CRITICISMS OF THE
PROCEEDINGS BEFORE THE COMMITTEE, ALL OF WHICH REST ON THE
PRESUPPOSITION THAT EITHER THE STATUTE OR THE DEMAND OF DUE PROCESS OF
LAW REQUIRES THE COMMITTEE TO HOLD HEARINGS UPON NOTICE TO INTERESTED
PERSONS AND THAT ITS HEARINGS BE SUBJECT TO REVIEW BEFORE THE
ADMINISTRATOR AND FINALLY AS A PART OF THE PROCEEDINGS BEFORE THE
ADMINISTRATOR TO JUDICIAL REVIEW ON PETITION TO THE CIRCUIT COURT OF
APPEALS, AS PROVIDED BY SEC. 10. 

REGULATIONS PRESCRIBE THE PROCEDURE TO BE FOLLOWED BY THE COMMITTEE." 
SUBMIT DATA TO THE COMMITTEE, SHALL CAUSE WITNESSES WHOM HE DEEMS
MATERIAL TO BE BROUGHT BEFORE IT, AND THAT THE COMMITTEE "MAY SUMMON
OTHER WITNESSES" TO AID IN ITS DELIBERATIONS.  SECTION 8(B) REQUIRES
THE INDUSTRY COMMITTEE TO "INVESTIGATE" CONDITIONS IN THE INDUSTRY.  IT
PROVIDES THAT THE COMMITTEE "MAY HEAR SUCH WITNESSES AND RECEIVE SUCH
EVIDENCE AS MAY BE NECESSARY OR APPROPRIATE" AND REQUIRES THE COMMITTEE
TO "RECOMMEND" TO THE ADMINISTRATOR THE HIGHEST MINIMUM WAGES "WHICH IT
DETERMINES, HAVING DUE REGARD TO ECONOMIC AND COMPETITIVE CONDITIONS,
WILL NOT SUBSTANTIALLY CURTAIL EMPLOYMENT IN THE INDUSTRY."  AFTER THE
REPORT IS FILED WITH THE ADMINISTRATOR HE, UPON DUE NOTICE AND HEARING,
IS REQUIRED TO APPROVE OR REJECT THE RECOMMENDATIONS. 

IT IS CLEAR THAT THE SECTIONS OF THE STATUTE NOW BEFORE US DO NOT
REQUIRE THE COMMITTEE TO CONDUCT A QUASI-JUDICIAL PROCEEDING UPON
NOTICE AND HEARING.  ITS FUNCTION, AS ALREADY STATED, IS TO INVESTIGATE
UPON THE BASIS OF DATA WHICH THE ADMINISTRATOR MAY SUBMIT AND WHICH THE
COMMITTEE MAY PROCURE FOR ITSELF AND TO REPORT ITS RECOMMENDATION WITH
RESPECT TO THE MINIMUM WAGE.  CF. NORWEGIAN NITROGEN CO. V. UNITED
STATES, SUPRA, 318.  THAT SUCH IS THE INTERPRETATION OF THE STATUTE IS
ABUNDANTLY SUPPORTED BY ITS LEGISLATIVE HISTORY.  SEE CONFERENCE
COMMITTEE REPORT, H. REPT. NO. 2738, 75TH CONG., 3D SESS., P. 31, AND
THE EXPLANATION OF THE BILL BY THE CHAIRMAN OF THE SENATE COMMITTEE, 83
CONG. REC. 9164.  IN HIS STATEMENT HE POINTED OUT THAT THE PROCEDURE IS
MODELED UPON THE NEW YORK MINIMUM WAGE ACT, SEE MOREHEAD V. TIPALDO,
298 U.S. 587, 619, AND HE EMPHASIZED THAT NO MINIMUM WAGE RATE COULD BE
ESTABLISHED WHICH HAD NOT BEEN FIRST "CAREFULLY WORKED OUT" BY A
COMMITTEE DRAWN PRINCIPALLY FROM THE INDUSTRY ITSELF AND THAT IT SHOULD
NOT THEN BE PUT INTO EFFECT "BY ADMINISTRATIVE ACTION WHICH HAS NOT
BEEN FOUND TO BE IN ACCORDANCE WITH LAW BY AN INDEPENDENT, RESPONSIBLE
ADMINISTRATIVE OFFICE OF THE GOVERNMENT, EXERCISING AN INDEPENDENT
JUDGMENT ON THE EVIDENCE AFTER A LEGAL HEARING." 

THE DEMANDS OF DUE PROCESS DO NOT REQUIRE A HEARING, AT THE INITIAL
STAGE OR AT ANY PARTICULAR POINT OR AT MORE THAN ONE POINT IN AN
ADMINISTRATIVE PROCEEDING SO LONG AS THE REQUISITE HEARING IS HELD
BEFORE THE FINAL ORDER BECOMES EFFECTIVE.  THE PROCEEDINGS BEFORE THE
ADMINISTRATOR AS PROVIDED BY SEC. 8(D) SATISFY THE REQUIREMENTS OF DUE
PROCESS WITHOUT FURTHER REQUIREMENT, WHICH THE STATUTE OMITS, OF A
HEARING ON NOTICE BEFORE THE COMMITTEE.  YORK V. TEXAS, 137 U.S. 15;
AMERICAN SURETY CO. V. BALDWIN, 287 U.S. 156, 168; UNITED STATES V.
ILLINOIS CENTRAL R. CO., 291 U.S. 457, 463. 

THE COMMAND OF SEC. 8(D) THAT THE ADMINISTRATOR, AS A PREREQUISITE TO
A WAGE ORDER, FIND THAT THE RECOMMENDATIONS OF THE COMMITTEE "ARE MADE
IN ACCORDANCE WITH LAW" DOES NOT EXTEND TO A REVIEW OF THE EVIDENCE AND
HEARINGS BEFORE THE COMMITTEE OR AN INVESTIGATION OF THE MENTAL
PROCESSES BY WHICH COMMITTEE MEMBERS REACHED THEIR CONCLUSION TO
RECOMMEND THE MINIMUM WAGE, OR EXTEND BEYOND INQUIRY UPON EVIDENCE
BEFORE THE ADMINISTRATOR WHETHER THE REQUIREMENTS OF STATUTE AND RULES
OF THE ADMINISTRATOR AS TO THE COMPOSITION OF THE COMMITTEE, THE
DEFINITION OF THE INDUSTRY, AND THE ACTIONS REQUIRED TO BE TAKEN BY THE
COMMITTEE HAVE BEEN OBSERVED. 

SUCH BEING THE FUNCTION OF THE COMMITTEE IT IS IMMATERIAL THAT
SUBSTITUTES WERE APPOINTED FOR TWO MEMBERS IN THE COURSE OF ITS
DELIBERATIONS, IT NOT APPEARING THAT THEY DID NOT CONSIDER THE EVIDENCE
TAKEN AND THE PROCEEDINGS HAD BEFORE THEIR APPOINTMENT TO THE
COMMITTEE. 

PROCEDURE BEFORE THE ADMINISTRATOR.  NOTICE OF THE HEARING BEFORE THE
ADMINISTRATOR WAS GIVEN IN CONFORMITY TO THE STATUTE, AND SINCE THE
NOTICE WAS FORTY DAYS IN ADVANCE OF THE TIME WHEN PETITIONER'S
REPRESENTATIVE WAS HEARD AND INTRODUCED EVIDENCE INTO THE RECORD AND A
FURTHER OPPORTUNITY WAS GIVEN TO PRESENT EVIDENCE, THE CONTENTION THAT
THE NOTICE TO PETITIONER WAS INADEQUATE OR FAILED TO MEET
CONSTITUTIONAL REQUIREMENTS IS WITHOUT MERIT.  AND AS THE ISSUE FOR
DETERMINATION BY THE ADMINISTRATOR IN THE LIGHT OF THE STATUTORY
REQUIREMENTS WAS FRAMED BY THE REPORT AND RECOMMENDATION OF THE
COMMITTEE TO THE ADMINISTRATOR THERE WAS NO FAILURE TO INFORM
PETITIONER OF THE CONTENTIONS MADE IN BEHALF OF THE GOVERNMENT.  CF.
MORGAN V. UNITED STATES, 298 U.S. 468; 304 U.S. 1.  NOR CAN WE FIND ANY
ERROR OR WANT OF DUE PROCESS IN PERMITTING THE INDUSTRY COMMITTEE TO
APPEAR BEFORE THE ADMINISTRATOR BY COUNSEL AND TO OFFER EVIDENCE IN
SUPPORT OF ITS RECOMMENDATIONS OR IN PERMITTING MEMBERS OF THE STAFF OF
THE WAGE AND HOUR DIVISION TO GIVE TESTIMONY.  SEE DENVER UNION STOCK
YARD CO. V. UNITED STATES, 304 U.S. 470, 477. 

SUPPORT IN THE EVIDENCE OF THE ADMINISTRATOR'S FINDINGS.  BY SEC. 10
REVIEW OF THE ADMINISTRATOR'S ORDER BY THE COURTS IS LIMITED TO
QUESTIONS OF LAW "AND FINDINGS OF FACT BY THE ADMINISTRATOR WHEN
SUPPORTED BY SUBSTANTIAL EVIDENCE SHALL BE CONCLUSIVE."  PETITIONERS
ATTACK THE ADMINISTRATOR'S FINDINGS THAT THE 32 1/2 CENT MINIMUM WILL
NOT SUBSTANTIALLY CURTAIL EMPLOYMENT AND THAT CLASSIFICATION OF THE
INDUSTRY IS NOT REQUIRED, ON THE GROUND THAT THEY ARE NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE. 

SINCE THE STATUTE REQUIRED THESE FINDINGS TO BE BASED UPON
CONSIDERATION OF ECONOMIC AND COMPETITIVE CONDITIONS IN THE INDUSTRY,
AS AFFECTED BY TRANSPORTATION, LIVING AND PRODUCTION COSTS, INCLUDING
WAGES, THE FINDINGS REST, TO A SUBSTANTIAL DEGREE, UPON STUDIES OF
STATISTICAL DATA WITH RESPECT TO THESE FACTORS GATHERED BY GOVERNMENT
AGENCIES AND PUBLISHED BY THEM OFFICIALLY.  THEY INCLUDE PUBLICATIONS
OF THE BUREAU OF LABOR STATISTICS, THE INTERSTATE COMMERCE COMMISSION,
THE FEDERAL TRADE COMMISSION, AND THE ECONOMIC SECTION OF THE WAGE AND
HOUR DIVISION OF THE DEPARTMENT OF LABOR.  THE MOST IMPORTANT AND THE
PRINCIPAL OBJECT OF ATTACK IS BULLETIN NO. 663 OF THE BUREAU OF LABOR
STATISTICS ENTITLED "WAGES IN COTTON GOODS MANUFACTURING," WHICH IS A
STUDY OF THE ECONOMIC CONDITIONS GENERALLY PREVAILING IN THE COTTON
TEXTILE INDUSTRY AND IN PARTICULAR OF THE WAGES OF EMPLOYEES.  THE
STATISTICS GATHERED, IF REGARDED AS OF PROBATIVE FORCE, AND THE
INFERENCES DRAWN FROM THEM BY THE ADMINISTRATOR, TAKEN WITH OTHER
EVIDENCE, AMPLY SUPPORT HIS FINDINGS. 

THE ARGUMENT OF PETITIONERS IS NOT THAT THE RECORD CONTAINS NO
EVIDENCE SUPPORTING THE FINDINGS BUT RATHER THAT THIS CLASS OF EVIDENCE
MUST BE IGNORED BECAUSE NOT COMPETENT IN A COURT OF LAW.  BUT IT HAS
LONG BEEN SETTLED THAT THE TECHNICAL RULES FOR THE EXCLUSION OF
EVIDENCE APPLICABLE IN JURY TRIALS DO NOT APPLY TO PROCEEDINGS BEFORE
FEDERAL ADMINISTRATIVE AGENCIES IN THE ABSENCE OF A STATUTORY
REQUIREMENT THAT SUCH RULES ARE TO BE OBSERVED.  INTERSTATE COMMERCE
COMM'N V. BAIRD, 194 U.S. 25, 44; INTERSTATE COMMERCE COMM'N V.
LOUISVILLE & N.R. CO., 227 U.S. 88, 93; SPILLER V. ATCHISON, T. & S.F.
RY. CO., 253 U.S. 117; UNITED STATES V. ABILENE & SOUTHERN RY. CO., 265
U.S. 274, 288; JOHN BENE & SONS V. FEDERAL TRADE COMMISSION, 299 F.
468, 471.  WE NEED NOT CONSIDER WHETHER THIS CLASS OF EVIDENCE MUST BE
EXCLUDED FROM PROCEEDINGS IN COURT. 

FURTHER THE DOCUMENTS IN QUESTION WERE RECEIVED IN EVIDENCE WITHOUT
OBJECTION.  AND EVEN IN A COURT OF LAW IF EVIDENCE OF THIS CHARACTER IS
ADMITTED WITHOUT OBJECTION IT IS TO BE CONSIDERED AND MUST BE ACCORDED
"ITS NATURAL PROBATIVE EFFECT AS IF IT WERE IN LAW ADMISSIBLE."  DIAZ
V. UNITED STATES, 223 U.S. 442, 450; ROWLAND V. ST. LOUIS & SAN
FRANCISCO R. CO., 244 U.S. 106, 108; CF. UNITED STATES V. LOS ANGELES &
SALT LAKE R. CO., 273 U.S. 299, 312. 

THE RELIABILITY OF THE DATA PUBLISHED IN THE BULLETIN WAS SUPPORTED
BEFORE THE ADMINISTRATOR BY THE TESTIMONY OF SOME OF HIS COMPILERS.  IN
THE CIRCUMSTANCES WE THINK THE BULLETIN AND OTHER DOCUMENTS IN QUESTION
WERE EVIDENCE TO BE CONSIDERED BY THE ADMINISTRATOR; THAT THE WEIGHT TO
BE GIVEN TO THEM AND THE INFERENCES TO BE DRAWN FROM THEM WERE FOR THE
ADMINISTRATOR AND NOT THE COURTS, AND THAT THEY LEND SUBSTANTIAL
SUPPORT TO HIS FINDINGS. 

FURTHER CONTENTIONS THAT THE FINDINGS, AND PARTICULARLY THE FINDING
THAT CLASSIFICATION IN THE INDUSTRY IS UNNECESSARY, AND THE SUBSIDIARY
FINDINGS AS TO DIFFERENCES IN TRANSPORTATION, LIVING, AND PRODUCTION
COSTS, ARE UNSUPPORTED BY SUBSTANTIAL EVIDENCE ARE ADDRESSED EITHER TO
THE WEIGHT AND DEPENDABILITY OF THE EVIDENCE SUPPORTING THE FINDINGS OR
TO THE TESTIMONY OF PARTICULAR WITNESSES OR CONFLICTING EVIDENCE ON
WHICH PETITIONERS RELY.  WE HAVE EXAMINED THESE CONTENTIONS AND,
WITHOUT FURTHER ELABORATION OF THE DETAILS OF THE EVIDENCE, WE CONCLUDE
THAT THE ADMINISTRATOR'S FINDINGS ARE SUPPORTED BY SUBSTANTIAL
EVIDENCE.  ANY DIFFERENT CONCLUSION WOULD REQUIRE US TO SUBSTITUTE OUR
JUDGMENT OF THE WEIGHT OF THE EVIDENCE AND THE INFERENCES TO BE DRAWN
FROM IT FOR THAT OF THE ADMINISTRATOR WHICH THE STATUTE FORBIDS. 

NUMEROUS OTHER CONTENTIONS ARE ADVANCED BY PETITIONERS BUT THEY ARE
SUBSIDIARY TO THOSE WHICH WE HAVE ALREADY CONSIDERED, OR ARE OF SUCH
SLIGHT MOMENT AS TO CALL FOR NO FURTHER DISCUSSION.  AFFIRMED. 

FN1  HERE THE COMMITTEE RECONSIDERED ITS REPORT, AFTER THE
ADMINISTRATOR HAD REDEFINED THE INDUSTRY ON MAY 22, 1939, AND AGAIN
ADOPTED ITS RECOMMENDATIONS WHICH HAD BEEN AGREED UPON. 
..END :























PALMER V. WEBSTER & ATLAS BANK, 312 U.S. 156 


NO. 120.  ARGUED JANUARY 8, 1941.  - DECIDED FEBRUARY 3, 1941.  - 111
F.2D 215, REVERSED. 


1.  TRUSTEES OF A RAILROAD IN REORGANIZATION PROCEEDINGS UNDER SEC. 77
OF THE BANKRUPTCY ACT, WHO, AFTER REJECTION OF LEASES OF OTHER LINES,
CONTINUE PURSUANT TO SEC. 77(C)(6) TO OPERATE THEM "FOR THE ACCOUNT OF
THE LESSOR," ARE NOT REQUIRED BY THE ACT OF JUNE 18, 1934, BY SEC. 65
OF THE JUDICIAL CODE, OR BY SEC. 77(C)(6), TO ADVANCE FUNDS, WITHOUT
SECURITY, OUT OF THE ESTATE OF THE RAILROAD FOR THE PAYMENT OF
OBLIGATIONS TO CREDITORS OF THE FORMER LESSORS, WHICH PAYMENT IS NOT
ESSENTIAL TO CONTINUED OPERATION OF THE LINES.  P. 162. 

2.  HOW FAR CASH ADVANCES TO THE FORMER LESSORS SHOULD GO; WHETHER
THE SECURITY FOR FURTHER ADVANCES IS ADEQUATE; AND WHETHER ADVANCES ARE
NECESSARY TO CONTINUED OPERATION, ARE ALL QUESTIONS TO BE DECIDED BY
THE DISTRICT COURT HAVING JURISDICTION OF THE REORGANIZATION
PROCEEDINGS.  UPON THE FACTS OF THIS CASE, THE DISTRICT COURT EXERCISED
A SOUND DISCRETION IN ORDERING THE TRUSTEES TO WITHHOLD FURTHER CASH
PAYMENTS IN RESPECT OF OBLIGATIONS OF THE FORMER LESSORS.  P. 167. 

3.  THE QUESTION WHETHER UNDER A STATUTE OF THE STATE THE RAILROAD IS
DIRECTLY LIABLE IN RESPECT OF THE OBLIGATIONS IN QUESTION, IS NOT
PRESENTED BY THE RECORD AND IS NOT DECIDED.  P. 168. 

PALMER ET AL., TRUSTEES, V. WEBSTER AND ATLAS NATIONAL BANK OF BOSTON,
TRUSTEE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 625, TO REVIEW THE REVERSAL OF AN ORDER OR THE
DISTRICT COURT DIRECTING THE TRUSTEES OF A RAILROAD IN REORGANIZATION
PROCEEDINGS UNDER SEC. 77 OF THE BANKRUPTCY ACT TO WITHHOLD CERTAIN
PAYMENTS OUT OF THE ESTATE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN PROCEEDINGS FOR THE REORGANIZATION OF THE NEW YORK, NEW HAVEN AND
HARTFORD RAILROAD UNDER SEC. 77 OF THE BANKRUPTCY ACT,  FN1  THE
DISTRICT COURT, IN RESPONSE TO A PETITION OF THE TRUSTEES, ORDERED THEM
TO WITHHOLD PAYMENT OF TAXES ASSESSED UPON THE PROPERTY OF BOSTON
TERMINAL COMPANY AND FRANCHISE TAXES AND BOND INTEREST OWED BY THE SAME
COMPANY.  FN2  THE CIRCUIT COURT OF APPEALS REVERSED ON THE GROUND THAT
STATUTES OF THE UNITED STATES COMPELLED PAYMENT BY THE TRUSTEES.  FN3
THE IMPORTANCE OF THE QUESTIONS INVOLVED, AND A CONFLICT OF DECISION,
FN4  MOVED US TO GRANT CERTIORARI. 

IN 1888 BOSTON AND PROVIDENCE RAILROAD CORPORATION LEASED ITS
PROPERTY TO OLD COLONY RAILROAD COMPANY FOR A TERM OF 99 YEARS.  IN
1893 OLD COLONY LEASED ITS PROPERTY, INCLUDING ITS LEASEHOLD INTEREST
IN THE BOSTON AND PROVIDENCE PROPERTY, TO NEW HAVEN FOR A TERM OF 99
YEARS.  BOSTON WAS THEN SERVED BY FOUR RAILROADS ENTERING THE CITY FROM
THE SOUTH AND WEST:  THE TWO LESSORS, NEW ENGLAND RAILROAD COMPANY, AND
BOSTON AND ALBANY RAILROAD COMPANY. 

IN 1896 MASSACHUSETTS, BY A SPECIAL ACT, INCORPORATED THE BOSTON
TERMINAL COMPANY,  FN5  WITH POWER TO CONSTRUCT AND MAINTAIN A UNION
PASSENGER STATION IN THE SOUTHERLY PART OF BOSTON, AND TO PROVIDE AND
OPERATE TERMINAL FACILITIES "FOR THE SEVERAL RAILROAD COMPANIES" BY THE
ACT "AUTHORIZED TO HOLD THE STOCK" OF THE COMPANY.  THE ACT SETS THE
CAPITAL STOCK AT $500,000, AND PROVIDES THAT BOSTON AND ALBANY, NEW
ENGLAND, BOSTON AND PROVIDENCE, OLD COLONY, "AND THE NEW YORK, NEW
HAVEN AND HARTFORD RAILROAD COMPANY, BEING LESSEE OF OLD COLONY
RAILROAD COMPANY, MAY EACH SUBSCRIBE FOR AND HOLD" ONE-FIFTH THEREOF. 

THE MANAGEMENT OF THE COMPANY'S AFFAIRS IS VESTED IN FIVE TRUSTEES,
ONE TO BE APPOINTED BY EACH OF THE FIVE STOCKHOLDING COMPANIES. 

ALL THE NAMED RAILROADS, INCLUDING THE NEW HAVEN, ARE REQUIRED TO USE
THE TERMINAL FOR ALL THEIR TERMINAL PASSENGER BUSINESS IN BOSTON.  THEY
ARE TO PAY TO THE TERMINAL COMPANY FOR SUCH USE THE AMOUNTS NEEDED TO
COVER THE COMPANY'S EXPENSES, INCLUDING INTEREST UPON ITS BONDS, AND
TAXES.  EACH RAILROAD IS REQUIRED TO PAY IN PROPORTION TO ITS USE, AS
AGREED AMONGST THEM, OR, IN DEFAULT OF AGREEMENT, ACCORDING TO THE
PROPORTION DETERMINED BY THE RAILROAD COMMISSIONERS (NOW THE DEPARTMENT
OF PUBLIC UTILITIES). 

THE REAL ESTATE OF THE TERMINAL COMPANY "REQUIRED BY THIS ACT TO BE
USED BY SAID RAILROAD COMPANIES SHALL BE ASSESSED TO AND THE TAXES
THEREON SHALL BE PAID BY SAID RAILROAD COMPANIES, AND IN THE ASSESSMENT
OF FRANCHISE TAXES UPON SAID RAILROAD COMPANIES EACH OF THEM SHALL BE
DEEMED TO BE THE OWNER OF SAID REAL ESTATE IN THE PROPORTION IN WHICH
IT THEN HAS THE USE THEREOF UNDER THIS ACT." 

IN 1905 NEW ENGLAND WAS MERGED INTO NEW HAVEN.  FN6  LATER BOSTON AND
ALBANY LEASED ITS PROPERTY TO THE NEW YORK CENTRAL.  THEREAFTER, IN
1921, THE MASSACHUSETTS ACT OF JUNE 9, 1896, WAS AMENDED FN7  TO GIVE
THE NEW YORK CENTRAL, AS LESSEE, THE RIGHT TO HOLD STOCK OF THE
TERMINAL COMPANY AND, DURING THE TERM OF THE LEASE, TO EXERCISE ALL THE
POWERS BY THE ACT CONFERRED ON BOSTON AND ALBANY.  THE TOTAL USE OF THE
TERMINAL THEREAFTER WAS BY NEW YORK CENTRAL, AS LESSEE OF BOSTON AND
ALBANY, BY NEW HAVEN, AS LESSEE OF OLD COLONY, AND BY NEW HAVEN, AS
OWNER OF THE NEW ENGLAND LINE.  DURING THE PERIOD INVOLVED IN THIS CASE
THERE WAS NO USE OF THE TERMINAL BY THE NEW HAVEN TRUSTEES ON BEHALF OF
THE NEW ENGLAND LINE.  FN8 

IN 1931 THE DEPARTMENT OF PUBLIC UTILITIES OF MASSACHUSETTS
DETERMINED THAT THE PROPORTION OF USE OF THE UNION STATION AND
FACILITIES WAS SEVENTY PER CENT. BY NEW HAVEN AND THIRTY PER CENT. BY
NEW YORK CENTRAL.  NO REAPPORTIONMENT HAS SINCE BEEN MADE. 

NEW HAVEN FILED ITS PETITION FOR REORGANIZATION IN THE DISTRICT COURT
FOR CONNECTICUT OCTOBER 23, 1935.  AT THAT TIME THE LINES OF OLD COLONY
AND BOSTON AND PROVIDENCE CAME INTO THE CUSTODY OF THE COURT AS A PART
OF THE NEW HAVEN SYSTEM.  THE COURT DIRECTED CONTINUED OPERATION OF THE
SYSTEM AND APPOINTED TRUSTEES.  OLD COLONY FILED ITS PETITION FOR
REORGANIZATION IN THE NEW HAVEN PROCEEDING JUNE 3, 1936, AND THE COURT
APPOINTED THE SAME PERSONS TRUSTEES AS HAD BEEN APPOINTED UPON THE NEW
HAVEN PETITION.  BOSTON AND PROVIDENCE INITIATED A REORGANIZATION
PROCEEDING IN THE DISTRICT COURT FOR MASSACHUSETTS AUGUST 5, 1938, AND
TRUSTEES OF ITS PROPERTY WERE APPOINTED BY THAT COURT.  THE NEW HAVEN
TRUSTEES DISAFFIRMED AND REJECTED THE OLD COLONY LEASE JUNE 2, 1936,
AND THE TRUSTEES OF OLD COLONY REJECTED THE BOSTON AND PROVIDENCE LEASE
JULY 19, 1938.  UNDER ORDERS OF THE DISTRICT COURT FOR CONNECTICUT,
MADE PURSUANT TO THE PROVISIONS OF SEC. 77(C)(6), THE NEW HAVEN
TRUSTEES HAVE CONTINUED TO OPERATE BOTH OLD COLONY AND BOSTON AND
PROVIDENCE RAILROADS FOR THE ACCOUNT OF THE FORMER LESSORS N9.  THE
TRUSTEES HAVE KEPT THEIR ACCOUNTS COVERING THE OPERATIONS OF THE TWO
LINES ACCORDING TO A SEGREGATION AND ALLOCATION OF EXPENSES AND
REVENUES APPROVED BY THE INTERSTATE COMMERCE COMMISSION AND BY THE
DISTRICT COURT AND CONFIRMED BY THE CIRCUIT COURT OF APPEALS.  FN10  IN
THE ACCOUNTING, THE SEVENTY PER CENT. OF THE USE OF THE TERMINAL
FACILITIES FORMERLY CHARGED TO NEW HAVEN AS LESSEE IS CHARGED BY THE
TRUSTEES TO OLD COLONY AND BOSTON AND PROVIDENCE OPERATIONS IN
PROPORTION TO USE. 

THE TRUSTEES' OPERATION OF OLD COLONY AND BOSTON AND PROVIDENCE
PROPERTIES HAS RESULTED IN LOSSES EXCEEDING $20,000,000 IN THE PERIOD
BETWEEN OCTOBER 23, 1935, AND DECEMBER 31, 1939.  THIS EXCESS OF
EXPENDITURES OVER RECEIPTS IS SECURED BY LIENS ON THE PROPERTIES. 
PAYMENT OF THE TAXES AND BOND INTEREST OF BOSTON TERMINAL COMPANY HAS
REQUIRED CASH ADVANCES INCREASING THE ACCUMULATING DEFICIT AT THE RATE
OF APPROXIMATELY $800,000 PER ANNUM.  THE TRUSTEES BELIEVE THAT THE
PROPERTIES OF THE LESSORS ARE INSUFFICIENT TO SECURE REPAYMENT OF
FURTHER CASH ADVANCES BY THE NEW HAVEN ESTATE AND THAT TO MAKE THEM
WILL JEOPARDIZE THE CLAIMS OF NEW HAVEN'S OWN SECURED CREDITORS.  IN A
PETITION OF OCTOBER 17, 1939, THEY SET FORTH THE FACTS AND STATED THEIR
VIEW THAT THEY SHOULD NOT MAKE FURTHER ADVANCES FOR PAYMENT OF BOSTON
TERMINAL TAXES AND BOND INTEREST FOR THE ACCOUNT OF THE OLD COLONY AND
BOSTON AND PROVIDENCE ESTATES.  NOTICE OF HEARING WAS GIVEN AND A
NUMBER OF INTERESTED PARTIES APPEARED.  THE DISTRICT COURT ANNOUNCED
ITS OPINION AND ENTERED AN ORDER, OCTOBER 30, 1939, DIRECTING THE
TRUSTEES TO WITHHOLD THE PAYMENTS IN QUESTION.  OLD COLONY TRUST
COMPANY, THE TRUSTEE UNDER THE MORTGAGE OF THE TERMINAL COMPANY,
APPEALED.  THE APPEAL WAS PROSECUTED IN THE CIRCUIT COURT OF APPEALS BY
ITS SUCCESSOR TRUSTEE, WEBSTER AND ATLAS NATIONAL BANK, THE RESPONDENT
IN THIS COURT. 

THE DISTRICT COURT OVERRULED THE CONTENTION THAT SEC. 77(C)(6)
IMPOSES AN OBLIGATION ON THE TRUSTEES OF NEW HAVEN IN BEHALF OF
CREDITORS OF THE LESSORS.  THE COURT HELD THAT THE SECTION REQUIRES THE
CONTINUED OPERATION OF THE LESSORS' PROPERTY, IF THE LESSORS ARE UNABLE
TO OPERATE, IN THE INTEREST OF THE PUBLIC.  IT CALLED ATTENTION TO THE
FACT THAT THE SECTION PROVIDES THAT THE OPERATION IS TO BE "FOR THE
ACCOUNT OF THE LESSOR" AND THAT NO CLAIM WAS MADE THAT FAILURE TO PAY
THE INTEREST OR TAXES IN QUESTION WOULD RESULT IN THE SUSPENSION OF
OPERATION OF OLD COLONY AND BOSTON AND PROVIDENCE LINES.  THE COURT
FURTHER HELD, ON AN ANALYSIS OF THE MASSACHUSETTS STATUTE CREATING THE
TERMINAL COMPANY, THAT ANY DIRECT OBLIGATION ON THE PART OF NEW HAVEN
TO PAY INTEREST AND TAXES TERMINATED WITH THE REJECTION OF THE OLD
COLONY LEASE WHICH RELATED BACK TO THE DATE OF THE PETITION FOR
REORGANIZATION, SINCE WHICH TIME THE TRUSTEES HAVE NOT OPERATED FOR
THEIR OWN ACCOUNT BUT FOR THAT OF THE FORMER LESSORS.  THE COURT
THOUGHT THAT UPON PLAIN PRINCIPLES OF EQUITY IT OUGHT NOT TO JEOPARDIZE
THE INTERESTS OF NEW HAVEN'S SECURED CREDITORS BY IMPOSING THE PROBABLE
LOSS UPON THE NEW HAVEN ESTATE. 

THE CIRCUIT COURT OF APPEALS DECLINED TO PASS UPON THE QUESTION
WHETHER SEC. 77(C)(6), OF ITS OWN FORCE, REQUIRES THE NEW HAVEN
TRUSTEES TO MAKE THE PAYMENTS AS OPERATING EXPENSES OF THE FORMER
LESSORS, THOUGH PAYMENT IS NOT INDISPENSABLE TO THE CONTINUANCE OF
RAILROAD OPERATIONS, AND DECLINED TO DECIDE WHETHER THE DIRECT
OBLIGATIONS IMPOSED BY THE MASSACHUSETTS STATUTE UPON NEW HAVEN BOUND
THE TRUSTEES OF NEW HAVEN AFTER REJECTION OF THE LEASES.  THE COURT
BASED ITS REVERSAL OF THE DISTRICT COURT'S ORDER UPON TWO FEDERAL
STATUTES. 

IT HELD THAT THE ACT OF JUNE 18, 1934,  FN11  WHICH PROVIDES THAT "ANY
RECEIVER, LIQUIDATOR, REFEREE, TRUSTEE, OR OTHER OFFICERS OR AGENTS
APPOINTED BY ANY UNITED STATES COURT WHO IS AUTHORIZED BY SAID COURT TO
CONDUCT ANY BUSINESS, OR WHO DOES CONDUCT ANY BUSINESS, SHALL, FROM AND
AFTER JUNE 18, 1934, BE SUBJECT TO ALL STATE AND LOCAL TAXES APPLICABLE
TO SUCH BUSINESS THE SAME AS IF SUCH BUSINESS WERE CONDUCTED BY AN
INDIVIDUAL OR CORPORATION  ...  ," LAYS UPON THE TRUSTEES THE
OBLIGATION TO PAY THE TAXES IN QUESTION.  WE ARE UNABLE TO AGREE. 

THE QUESTION IS WHETHER THE TRUSTEES, WHO ARE OFFICERS OR AGENTS
APPOINTED BY THE COURT TO CONDUCT THE BUSINESS OF NEW HAVEN, ARE ALSO,
WITHIN THE INTENDMENT OF THE STATUTE, AGENTS WHO ARE CONDUCTING THE
BUSINESS OF OLD COLONY.  STATED OTHERWISE, THE INQUIRY IS WHETHER, IN
ADOPTING THE STATUTE, CONGRESS HAD IN VIEW AN ENFORCED OPERATION OF A
LESSOR'S PROPERTY BY THE TRUSTEES OF THE LESSEE UNDER SEC. 77(C)(6) TO
PREVENT STOPPAGE OF RAILROAD TRANSPORTATION.  WE THINK CONGRESS HAD NO
SUCH INTENT. 

THE LEGISLATIVE HISTORY OF THE ACT DISCLOSES ITS PURPOSE.  THE
COMMITTEE REPORTS ACCOMPANYING THE BILL WHICH BECAME THE ACT OF 1934
STATE: FN12  "THE PURPOSE OF THIS BILL IS TO SUBJECT BUSINESSES
CONDUCTED UNDER RECEIVERSHIP IN FEDERAL COURTS TO STATE AND LOCAL
TAXATION THE SAME AS IF SUCH BUSINESSES WERE BEING CONDUCTED BY PRIVATE
INDIVIDUALS OR CORPORATIONS."  THE REPORTS ADVERT TO THE FACT THAT
FEDERAL COURTS HAD HELD A FEDERAL RECEIVER OPERATING A BUSINESS EXEMPT
FROM STATE SALES TAXES.  THEY CONCLUDE:  "NO GOOD REASON IS PERCEIVED
WHY A RECEIVER SHOULD BE PERMITTED TO OPERATE UNDER SUCH AN ADVANTAGE
AS AGAINST HIS COMPETITORS NOT IN RECEIVERSHIP, AND THE STATES AND
LOCAL GOVERNMENTS BE DEPRIVED OF THIS REVENUE." 

WHAT CONGRESS INTENDED WAS THAT A BUSINESS IN RECEIVERSHIP, OR
CONDUCTED UNDER COURT ORDER, SHOULD BE SUBJECT TO THE SAME TAX
LIABILITY AS THE OWNER WOULD HAVE BEEN IF IN POSSESSION AND OPERATING
THE ENTERPRISE.  IN THE LIGHT OF THIS PURPOSE, THE ACT DOES NOT IMPOSE
UPON THE NEW HAVEN TRUSTEES THE OBLIGATION TO PAY TAXES ARISING OUT OF
THE CONDUCT OF THE BUSINESS OF OLD COLONY OR BOSTON AND PROVIDENCE. 
THE RIGHT TO REJECT BURDENSOME LEASES.  SECTION 77(C)(6) PROVIDES THAT
IF A LEASE OF A LINE OF RAILROADS IS SO REJECTED IT SHALL BE THE DUTY
OF THE LESSOR TO OPERATE THE LINE UNLESS IT BE FOUND IMPRACTICABLE FOR
THE LESSOR SO TO DO, "IN WHICH EVENT IT SHALL BE THE DUTY OF THE LESSEE
TO CONTINUE OPERATION ON OR FOR THE ACCOUNT OF THE LESSOR."  THE TAXES
IN QUESTION ARE, IN THE WORDS OF THE ACT OF 1934, "APPLICABLE TO" THE
BUSINESS OF OLD COLONY, AND BOSTON AND PROVIDENCE.  THE NEW HAVEN
TRUSTEES HAVING REJECTED THE OLD COLONY LEASE, THEY ARE NO LONGER
APPLICABLE, IN ANY PROPER SENSE, TO THE BUSINESS OF NEW HAVEN. 

BY SEC. 77(C)(2) THE TRUSTEES OF A RAILROAD IN REORGANIZATION ARE
GIVEN POWER TO OPERATE "THE BUSINESS OF THE DEBTOR."  BY SUBSECTION
(C)(4) THE TRUSTEES ARE REQUIRED TO FILE SCHEDULES AND INFORMATION
DISCLOSING "THE CONDUCT OF THE DEBTOR'S AFFAIRS."  THE NEW HAVEN
TRUSTEES' DUTY IS TO CONDUCT THE BUSINESS OF NEW HAVEN.  OLD COLONY
PETITIONED FOR REORGANIZATION AND TRUSTEES WERE APPOINTED IN THAT
PROCEEDING AS "TRUSTEES OF THE PROPERTY OF OLD COLONY RAILROAD
COMPANY," AND WERE GRANTED, PURSUANT TO SEC. 77, POWER TO OPERATE "THE
BUSINESS OF OLD COLONY RAILROAD COMPANY."  THE TRUSTEES OF OLD COLONY,
AS SUCH, ARE THE PERSONS WHO, IN THE LANGUAGE OF THE STATUTE, ARE
"AUTHORIZED BY SAID COURT TO CONDUCT" THE "BUSINESS" OF OLD COLONY. 

UPON THE PETITION OF A CREDITOR FOR THE REORGANIZATION OF BOSTON AND
PROVIDENCE, WHICH ALLEGED THAT COMPANY WAS A COMMON CARRIER BY RAILROAD
ENGAGED IN THE TRANSPORTATION OF PERSONS AND PROPERTY IN INTERSTATE
COMMERCE, AND THAT THE CONNECTICUT DISTRICT COURT HAD ORDERED THE
OPERATION OF ITS LINE TO BE CONTINUED BY THE NEW HAVEN TRUSTEES FOR THE
ACCOUNT OF BOSTON AND PROVIDENCE, AND UPON THE COMPANY'S ADMISSION OF
THE TRUTH OF THE ALLEGATIONS OF THE PETITION, THE MASSACHUSETTS
DISTRICT COURT APPROVED THE PETITION AND APPOINTED TRUSTEES FOR THE
PROPERTY OF BOSTON AND PROVIDENCE.  THE APPOINTMENT WAS CONFIRMED BY
THE INTERSTATE COMMERCE COMMISSION AND THE TRUSTEES ARE IN OFFICE.  AS
IN THE CASE OF OLD COLONY, THESE TRUSTEES ARE THE PERSONS WHO ARE
CONDUCTING THE BUSINESS OF BOSTON AND PROVIDENCE AND NOT THE NEW HAVEN
TRUSTEES.    IF THE TRUSTEES OF EITHER OF THE LESSOR'S PROPERTIES WERE
ABLE TO OPERATE THE LINES OF RAILROAD AND FROM THE PROCEEDS OF THAT
OPERATION, OR FROM ANY OTHER SOURCE, WERE IN POSSESSION OF AVAILABLE
FUNDS, IT WOULD BE THE DUTY OF THE COURT IN VIEW OF THE ACT OF 1934 TO
REQUIRE THEM TO PAY THE TAXES APPLICABLE TO THE BUSINESS THEY ARE
CONDUCTING UNDER THE ORDERS OF THE COURT.  BUT IT DOES NOT FOLLOW THAT
THE NEW HAVEN TRUSTEES, WHO ARE NOT CONDUCTING THE BUSINESS OF OLD
COLONY OR BOSTON AND PROVIDENCE, AS SUCH, BUT WHO, UNDER THE CONSTRAINT
OF SEC. 77(C)(6), ARE MERELY OPERATING THE LINES OF THOSE COMPANIES TO
PREVENT PUBLIC INCONVENIENCE ARE, IN THE CONTEMPLATION OF THE ACT OF
1934, CONDUCTING THE BUSINESS OF THE LESSORS IN SUCH SENSE AS TO BE
LIABLE, OUT OF NEW HAVEN ESTATE FUNDS, FOR TAXES OWED BY THOSE
COMPANIES.  IT WOULD REQUIRE VERY CLEAR AND EXPLICIT LANGUAGE TO EVINCE
AN INTENT ON THE PART OF CONGRESS TO APPROPRIATE THE MONEYS OF THE NEW
HAVEN ESTATE, WHICH HAS REJECTED THE OLD COLONY LEASE AND RID ITSELF OF
THE LEASEHOLD INTEREST THEREBY CREATED, TO PAY THE TAXES OF ITS
LESSOR.  WE FIND IN THE ACT OF 1934 NO SUCH CLEAR EXPRESSION.  ON THE
CONTRARY WE THINK IT PLAIN CONGRESS DID NOT HAVE IN MIND, IN ADOPTING
THAT STATUTE, ANY SUCH SITUATION AS IS CREATED BY SEC. 77(C)(6). 

THE COURT OF APPEALS WAS OF OPINION THAT AN OBLIGATION IS IMPOSED
UPON THE NEW HAVEN TRUSTEES TO PAY THE BOND INTEREST OF THE TERMINAL
COMPANY BY SEC. 65 OF THE JUDICIAL CODE,  FN13  WHICH PROVIDES: 

"WHENEVER IN ANY CAUSE PENDING IN ANY COURT OF THE UNITED STATES
THERE SHALL BE A RECEIVER OR MANAGER IN POSSESSION OF ANY PROPERTY,
SUCH RECEIVER OR MANAGER SHALL MANAGE AND OPERATE SUCH PROPERTY
ACCORDING TO THE REQUIREMENTS OF THE VALID LAWS OF THE STATE IN WHICH
SUCH PROPERTY SHALL BE SITUATED, IN THE SAME MANNER THAT THE OWNER OR
POSSESSOR THEREOF WOULD BE BOUND TO DO IF IN POSSESSION THEREOF.  ANY
RECEIVER OR MANAGER WHO SHALL WILLFULLY VIOLATE ANY PROVISION OF THIS
THAN ONE YEAR, OR BOTH." 

THE COURT HELD THE STATUTE APPLICABLE BY REGARDING ITS LETTER, AND,
AS WE THINK, IGNORING ITS OBVIOUS PURPOSE.  IN THE WORDS OF THE
STATUTE, THE TRUSTEES OF THE NEW HAVEN ARE "IN POSSESSION" OF CERTAIN
PROPERTY BELONGING TO OLD COLONY, AND BOSTON AND PROVIDENCE.  THEY ALSO
ARE OPERATING THAT PROPERTY.  HENCE THE COURT OF APPEALS CONCLUDED THAT
THE MASSACHUSETTS ACT OF 1896,  - A VALID LAW PLACING UPON NEW HAVEN AN
OBLIGATION TO PAY THE BOND INTEREST OF THE TERMINAL COMPANY, - BINDS
THE TRUSTEES, SO LONG AS THEY OPERATE THE PROPERTIES, TO COMPLY WITH
THE NEW HAVEN'S STATUTORY OBLIGATION. 

THE ACT OF MARCH 3, 1887 FN14  AND IT HAS FREQUENTLY BEEN INTERPRETED
AND APPLIED BY THE COURTS.  FN15  ITS OBVIOUS PURPOSE WAS TO NEGATIVE
THE IDEA THAT A FEDERAL RECEIVER OR TRUSTEE COULD IGNORE THE RULES OF
LAW OF THE STATE OF OPERATION AFFECTING THE CONDUCT OF THE BUSINESS
COMMITTED TO HIS CHARGE.  IN THIS SENSE IT HAS BEEN INTERPRETED AND
APPLIED AND, IN THIS SENSE, IT IS CERTAINLY BINDING UPON THE TRUSTEES
OF NEW HAVEN SO LONG AS THEY OPERATE THE PROPERTY OF THE FORMER
LESSORS.  THE APPLICATION OF THE ACT BY THE COURT BELOW GOES MUCH
FARTHER THAN THIS.  IF VALID STATE LAWS REQUIRE A DEBTOR TO PAY HIS
DEBTS THEN, UNDER THE DECISION OF THE COURT, SUCH LAWS BIND THE NEW
HAVEN TRUSTEES TO PAY THE DEBTS OF OLD COLONY, AND BOSTON AND
PROVIDENCE.  IF THIS VIEW WERE CORRECT, THE TRUSTEES WOULD NOT BE
OPERATING THE PROPERTY OF THOSE COMPANIES FOR THE ACCOUNT OF THE LATTER
AS SEC. 77(C)(6) PROVIDES.  ON THE CONTRARY, THEY WOULD BE OPERATING
FOR THE ACCOUNT OF THE NEW HAVEN ESTATE.  MOREOVER, ON THIS ASSUMPTION,
THE NEW HAVEN ESTATE WOULD BE COMPELLED TO PAY THE FORMER LESSORS'
DEBTS AS THEY ACCRUED.  THE RESULT WOULD BE A PREFERENCE OF THE
CREDITORS OF THE CONFESSEDLY INSOLVENT LESSORS AS AGAINST THE CREDITORS
OF THE NEW HAVEN WHOSE TRUSTEES ARE OPERATING THE BOSTON AND PROVIDENCE
AND OLD COLONY PROPERTY ONLY UNDER THE CONSTRAINT OF SEC. 77(C)(6).  WE
THINK THAT TO STATE THE PROPOSITION IS TO DEMONSTRATE THAT SEC. 65 OF
THE JUDICIAL CODE HAS NO SUCH PURPOSE OR EFFECT. 

WE ARE OF OPINION, AS WAS THE DISTRICT COURT, THAT NOTHING IN SEC.
77(C)(6) WORKS THE INEQUITABLE RESULT THAT THE INVOLUNTARY OPERATION OF
THE OLD COLONY, AND BOSTON AND PROVIDENCE PROPERTIES BY THE NEW HAVEN
TRUSTEES REQUIRES THEM TO ADVANCE NEW HAVEN'S FUNDS, WITHOUT SECURITY,
FOR THE PAYMENT OF OBLIGATIONS OF THE FORMER LESSORS WHICH ARE NOT
ESSENTIAL TO THE CONTINUED OPERATION DEMANDED OF THE TRUSTEES. 

HOW FAR CASH ADVANCES TO THE FORMER LESSORS SHOULD GO; WHETHER THE
SECURITY FOR FURTHER ADVANCES IS ADEQUATE; WHETHER ADVANCES ARE
NECESSARY TO CONTINUED OPERATION; ARE ALL QUESTIONS TO BE DECIDED BY
THE DISTRICT COURT HAVING JURISDICTION OF THE NEW HAVEN REORGANIZATION
PROCEEDINGS.  THESE ARE PROBLEMS OF ADMINISTRATION TO BE SOLVED BY THE
EXERCISE OF A SOUND DISCRETION.  UPON THE UNCONTESTED FACTS, WE THINK
THE DISTRICT COURT EXERCISED SUCH A DISCRETION IN ORDERING THE
WITHHOLDING OF FURTHER CASH PAYMENTS TOWARDS THE TAXES AND INTEREST OF
THE TERMINAL COMPANY, AND THAT ITS ORDER SHOULD STAND. 

THE DISTRICT COURT DISCUSSED AT SOME LENGTH THE PROVISIONS OF THE
MASSACHUSETTS ACT OF 1896 CHARTERING THE TERMINAL COMPANY.  THE
RESPONDENT INSISTS THAT THE COURT ERRONEOUSLY CONSTRUED THE ACT AND
HELD THAT IT WILL NOT SUSTAIN ANY CLAIM ON THE PART OF THE TERMINAL
COMPANY, OR THE STATE OR THE CITY OF BOSTON, AGAINST THE NEW HAVEN
ESTATE IN RESPECT OF THE INTEREST ON THE TERMINAL COMPANY'S BONDS AND
TAXES ASSESSED ON ITS PROPERTY AND FRANCHISE.  THE TRUSTEES' PETITION
SOUGHT AN ORDER DEALING ONLY WITH THE CURRENT ADMINISTRATION OF THE NEW
HAVEN ESTATE AND THE DISTRICT COURT NEED NOT HAVE DECIDED, AND WE THINK
DID NOT DECIDE, ANY QUESTION OTHER THAN THAT PRESENTED.  IN ANY EVENT,
NO QUESTION OF THE VALIDITY OF ANY SUCH CLAIM IS PRESENTED ON THIS
RECORD AND OUR AFFIRMANCE OF THE DISTRICT COURT'S ORDER IS NOT TO BE
TAKEN AS THE EXPRESSION OF AN OPINION UPON ANY SUCH QUESTION. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  11 U.S.C. SEC. 205. 

FN2  THE ORDER ALSO DIRECTED THE TRUSTEES TO WITHHOLD PAYMENT OF
TAXES APPROXIMATING $613,000 DUE BY OLD COLONY RAILROAD COMPANY, AND
BOSTON AND PROVIDENCE RAILROAD CORPORATION TO MASSACHUSETTS, AND TAXES
APPROXIMATING $76,000 DUE BY THE SAME COMPANIES TO RHODE ISLAND.  THAT
PORTION OF THE ORDER IS NOT INVOLVED IN THIS CASE. 

FN3  111 F.2D 215. 

FN4  SEE PHILADELPHIA CO. V. DIPPLE, POST, PP. 168, 169-170. 

FN5  ACT OF JUNE 9, 1896, MASSACHUSETTS ACTS AND RESOLVES, 1896, CH.
516, P. 520. 

FN6  MASSACHUSETTS ACTS AND RESOLVES 1905, CH. 252; RHODE ISLAND ACTS
AND RESOLVES, 1915, P. 452, SEC. 4. 

FN7  ACT OF MAY 7, 1921, MASSACHUSETTS ACTS AND RESOLVES, 1921, CH.
363, P. 391. 

FN8  IT IS ASSERTED BY RESPONDENT THAT SUCH USE HAS BEEN RESUMED,
BUT, IF THIS BE THE FACT, IT IS IRRELEVANT TO ANY ISSUE IN THE CASE. 
NO PAYMENT IN RESPECT OF NEW ENGLAND USE IS IN QUESTION. 

FN9  SEE PALMER V. PALMER, 104 F.2D 161; PALMER V. WARREN, 108 F.2D
164, AFFIRMED WARREN V. PALMER, 310 U.S. 132. 

FN10  PURSUANT TO SEC. 77(C)(6), 77(C)(10); SEE PALMER V. PALMER,
SUPRA, NOTE 9. 

FN11  C. 585, 48 STAT. 993; 28 U.S.C. SEC. 124(A). 

FN12  H.R. 1138, 73D CONG., 2D SESS.; S. REPT. 1372, 73D CONG., 2D
SESS. 

FN13  28 U.S.C. SEC. 124. 

FN14 C. 373, 24 STAT. 552, 554. 

FN15  SEE E.G. UNITED STATES V. HARRIS, 177 U.S. 305; ERB V. MORASCH,
177 U.S. 584; GILLIS V. CALIFORNIA, 293 U.S. 62; HORNSBY V. EDDY, 56 F.
461; PEIRCE V. VAN DUSEN, 78 F. 693. 
..END :









PHILADELPHIA CO. V. DIPPLE, 312 U.S. 168 


NOS. 242 AND 243.  ARGUED JANUARY 8, 9, 1941.  - DECIDED FEBRUARY 3,
1941.  - 111 F.2D 932, AFFIRMED. 


1.  THE TRUSTEES OF A DEBTOR STREET RAILWAY COMPANY IN A
REORGANIZATION PROCEEDING UNDER SEC. 77B (NOW CHAPTER X) OF THE
BANKRUPTCY ACT, ARE NOT REQUIRED BY THE ACT OF JUNE 18, 1934 TO PAY,
OUT OF THE ESTATE OF THE DEBTOR, TAXES OWED BY CORPORATIONS WHOSE
PROPERTIES THE DEBTOR OPERATED - TOGETHER WITH ITS OWN IN A UNIFIED
SYSTEM - UNDER LEASES AND OPERATING AGREEMENTS, AND WHICH THE TRUSTEES
CONTINUED TO OPERATE.  P. 175. 

2.  PENDING AFFIRMATION OR REJECTION OF THE LEASES AND OPERATING
AGREEMENTS BY THE TRUSTEES, THEIR OBLIGATION WAS TO PAY ONLY A
REASONABLE AMOUNT FOR USE AND OCCUPATION, NOT IN EXCESS OF THE NET
EARNINGS DERIVED FROM THE OPERATION OF EACH PROPERTY.  P. 174. 

PHILADELPHIA COMPANY ET AL. V. DIPPLE ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 311 U.S. 628, TO REVIEW THE REVERSAL OF AN ORDER
DIRECTING THE PAYMENT OF CERTAIN TAXES BY THE TRUSTEES IN A
REORGANIZATION PROCEEDING UNDER SEC. 77B OF THE BANKRUPTCY ACT.  AN
APPEAL FROM THE ORDER OF THE DISTRICT COURT WAS TAKEN BY THE TORT
CREDITORS' COMMITTEE AND THE CITY OF PITTSBURGH, RESPONDENTS HERE. 
PETITIONERS HERE ARE THE PHILADELPHIA COMPANY (PRINCIPAL CREDITOR AND
OWNER OF ALL THE CAPITAL STOCK OF THE DEBTOR PITTSBURGH RAILWAYS
COMPANY) AND CERTAIN UNDERLIERS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A PROBLEM SIMILAR TO THAT INVOLVED IN PALMER V.
WEBSTER & ATLAS NATIONAL BANK, ANTE, P. 156.  HERE THE DEBTOR
INSTITUTED A REORGANIZATION PROCEEDING UNDER SEC. 77B OF THE BANKRUPTCY
ACT (NOW CHAPTER X OF THAT ACT)  FN1  AND THE QUESTION PRESENTED IS
WHETHER THE TRUSTEES SHOULD BE DIRECTED TO PAY TAXES OWED BY
CORPORATIONS WHOSE PROPERTIES THE DEBTOR OPERATED UNDER LEASES AND
OPERATING AGREEMENTS AND THE TRUSTEES CONTINUED TO OPERATE.  ALTHOUGH
THE COURTS BELOW DID NOT REFER TO THE ACT OF JUNE 18, 1934,  FN2  THE
PETITIONERS' INSISTENCE THAT THE DECISION OF THE CIRCUIT COURT OF
APPEALS IS IN THE TEETH OF THE PROVISIONS OF THE ACT AND CONFLICTS WITH
THE DECISION OF THE CIRCUIT COURT OF APPEALS OF THE SECOND CIRCUIT IN
THE PALMER CASE CAUSED US TO GRANT CERTIORARI. 

THE DEBTOR, PITTSBURGH RAILWAYS COMPANY, HAS, FOR MANY YEARS,
POSSESSED AND USED THE PROPERTIES OF SOME FIFTY-FIVE STREET RAILWAY
COMPANIES AND HAS OPERATED THOSE PROPERTIES, IN CONNECTION WITH ITS
OWN, AS A UNIFIED STREET RAILWAY SYSTEM IN PITTSBURGH, PENNSYLVANIA,
AND SURROUNDING TERRITORY.  THE DEBTOR OBTAINED POSSESSION OF THE
PROPERTIES OF THE UNDERLYING COMPANIES THROUGH LEASES AND OPERATING
AGREEMENTS WHICH REQUIRED THE DEBTOR TO PAY ALL EXPENSES OF OPERATION
AND MAINTENANCE AND ALL THE TAXES OF THE UNDERLYING COMPANIES.  THE
SYSTEM COMPRISES SOME 560 MILES OF TRACK, INCLINE PLANE RAILWAYS, CARS,
CAR BARNS, AND BUILDINGS.  THE DEBTOR OWNS 28 MILES OF THE TRACK AND
OWNS CARS AND OTHER PROPERTY.  PURSUANT TO THE TERMS OF THE LEASES AND
AGREEMENTS, THE DEBTOR HAS DIRECTLY PAID THE EXPENSES OF OPERATING,
MAINTENANCE CHARGES, AND ALL TAXES OF THE UNDERLYING COMPANIES.  AFTER
THE FILING OF THE DEBTOR'S PETITION UNDER SEC. 77B, ITS APPROVAL, AND
AN ORDER CONTINUING THE DEBTOR IN POSSESSION, THE COURT, JUNE 14, 1938,
APPOINTED TRUSTEES WITH AUTHORITY TO MAINTAIN, MANAGE, AND OPERATE THE
PROPERTY IN POSSESSION OF, OR OWNED BY, THE DEBTOR; TO MANAGE AND
CONDUCT ITS BUSINESS; COLLECT THE REVENUES THEREFROM, AND TO PAY ALL
TAXES AND ASSESSMENTS DUE, OR TO BECOME DUE, UPON PROPERTY IN
POSSESSION OF, OR OWNED BY, THE DEBTOR.  THE TRUSTEES HAVE SINCE BEEN
OPERATING THE BUSINESS, USING THEREIN THE PROPERTIES OF THE UNDERLYING
COMPANIES.  THEY HAVE NOT AFFIRMED OR DISAFFIRMED THE LEASES AND
OPERATING AGREEMENTS. 

MARCH 10, 1939, THE TRUSTEES PETITIONED THE DISTRICT COURT FOR
INSTRUCTIONS RESPECTING THE PAYMENT, AS ADMINISTRATION EXPENSES, OF
TAXES ASSESSED AGAINST THE DEBTOR, A SUBSIDIARY, AND THE UNDERLYING
COMPANIES.  FN3  THE PETITION WAS REFERRED TO A MASTER BEFORE WHOM
OBJECTIONS WERE FILED BY THE CITY OF PITTSBURGH, A CREDITOR, AND ALSO
BY A CREDITORS' COMMITTEE, TO THE PAYMENT OF THE TAXES ASSESSED AGAINST
THE UNDERLYING COMPANIES.  THESE CONSISTED OF PENNSYLVANIA CORPORATE
STOCK TAXES, PENNSYLVANIA CORPORATE NET INCOME TAXES, PENNSYLVANIA
CORPORATE LOAN TAXES, AND FEDERAL INCOME TAXES, SOME OF WHICH ACCRUED
AND BECAME PAYABLE SUBSEQUENT TO THE FILING OF THE PETITION FOR
REORGANIZATION AND SOME OF WHICH ACCRUED PRIOR THERETO.  THE PRESENT
PETITIONERS APPEARED BEFORE THE MASTER AND ADVOCATED AN ORDER FOR
PAYMENT OF THE TAXES. 

IT APPEARED FROM THE TRUSTEES' PETITION THAT THEY HAD ON HAND AN
AMOUNT SUFFICIENT TO PAY ALL THE TAXES AS TO WHICH THEY REQUESTED
INSTRUCTION AND THAT NONE OF THE UNDERLYING COMPANIES HAD FUNDS WITH
WHICH TO PAY ANY OF THE TAXES ASSESSED AGAINST THEM.  THE TESTIMONY
BEFORE THE MASTER SHOWED THAT DURING THE EXISTENCE OF THE UNIFIED
SYSTEM NO ATTEMPT WAS MADE TO ACCOUNT FOR THE REVENUES AND OPERATING
EXPENSES OF INDIVIDUAL UNDERLYING COMPANIES; THAT ANY ATTEMPT TO
ACCOUNT FOR THE REVENUES AND EXPENSES OF INDIVIDUAL COMPANIES WOULD BE
VERY EXPENSIVE AND THE RESULTS WOULD NOT BE SUFFICIENTLY ACCURATE TO
FORM A BASIS FOR ALLOCATING THE ITEMS; THAT IT WAS IMPOSSIBLE TO
OPERATE EACH UNDERLYING COMPANY SEPARATELY SO AS TO ASCERTAIN THE NET
EARNINGS OF EACH, AND THAT IT WAS PROBABLY IMPOSSIBLE TO DETERMINE WHAT
WOULD BE THE FAIR PROPORTION OF RENTALS TO BE PAID TO THE VARIOUS
UNDERLYING COMPANIES WHOSE PROPERTIES WERE UTILIZED BY THE DEBTOR AND
ARE NOW UTILIZED BY THE TRUSTEES.  THERE WAS TESTIMONY THAT IT WAS
IMPRACTICABLE AT THE TIME OF THE HEARING FOR THE TRUSTEES TO STATE WHAT
PROPERTIES OF UNDERLYING COMPANIES WOULD BE EMBRACED IN THE
CONTEMPLATED PLAN OF REORGANIZATION. 

IN HIS REPORT, THE MASTER RECOMMENDED THAT THE TRUSTEES BE DIRECTED
NOT TO PAY TAXES ASSESSED AGAINST THE UNDERLYING COMPANIES AT THE
PRESENT TIME.  THIS RECOMMENDATION WAS SUPPORTED BY A FINDING THAT IT
WAS UNCERTAIN THAT ANY OF THE LEASES WOULD BE AFFIRMED BY THE TRUSTEES
AND THAT, IN THE ABSENCE OF EVIDENCE THAT THE NET EARNINGS OF EACH
UNDERLYING COMPANY EQUALLED ITS TAXES, PAYMENT OF TAXES MIGHT RESULT IN
PREFERMENT OR OVERPAYMENT.  FURTHERMORE, THE MASTER FOUND THAT CLAIMS
OF THE DEBTOR AGAINST CERTAIN OF THE UNDERLYING COMPANIES MIGHT
EXTINGUISH ANY EXISTING EQUITIES IN THE PROPERTIES OF THE LATTER. 

AFTER A HEARING ON EXCEPTIONS TO THE MASTER'S REPORT, AND AFTER
RECEIVING A RECOMMENDATION FROM THE TRUSTEES AS TO WHAT TAXES OF THE
UNDERLYING COMPANIES SHOULD BE PAID, THE DISTRICT COURT ENTERED AN
ORDER THAT THE BULK OF THE TAXES OF THE UNDERLYING COMPANIES SHOULD BE
PAID BY THE TRUSTEES.  THE DECREE WAS PREDICATED UPON THE FACT THAT THE
SYSTEM HAD BEEN OPERATED AS A UNIT FOR MANY YEARS; THAT ALL INCOME
DERIVED FROM THE LINES OF THE UNDERLYING COMPANIES HAD BEEN KEPT IN ONE
FUND, AND THAT IT WAS EQUITABLE THAT THE TAXES OF THE UNDERLYING
COMPANIES BE TREATED AS TAXES OF THE DEBTOR. 

UPON AN APPEAL BY THE CREDITORS' COMMITTEE AND BY THE CITY OF
PITTSBURGH, THE CIRCUIT COURT OF APPEALS REVERSED THE ORDER OF THE
DISTRICT COURT SO FAR AS IT APPLIED TO THE TAXES OF THE UNDERLYING
COMPANIES.  FN4  THAT COURT HELD THAT THE DEBTOR'S UNDERTAKING TO PAY
THE TAXES OF THE UNDERLYING COMPANIES WAS MERELY A PORTION OF THE
CONSIDERATION FOR THE USE OF THEIR PROPERTY AND WAS, THEREFORE, A
RENTAL OBLIGATION AND NOT A TAX LIABILITY.  THE ARGUMENT WAS PRESSED
UPON THE COURT THAT THE SEPARATE CORPORATE ENTITIES OF THE UNDERLYING
COMPANIES SHOULD BE DISREGARDED.  IN VIEW OF THE FACT THAT NONE OF THE
UNDERLYING COMPANIES HAD FILED PETITIONS FOR REORGANIZATION, AND THUS
SUBJECTED THEMSELVES TO THE JURISDICTION OF THE COURT, THE CIRCUIT
COURT OF APPEALS HELD THAT, UNTIL AFFIRMATION OF THE LEASES AND
OPERATING AGREEMENTS BY THE TRUSTEES, THEIR SOLE OBLIGATION WAS TO PAY
A REASONABLE AMOUNT FOR USE AND OCCUPATION WHICH COULD NOT BE IN EXCESS
OF THE NET EARNINGS DERIVED FROM THE OPERATION OF EACH PROPERTY AND
COULD NOT BE ASCERTAINED UNTIL IT WAS DETERMINED WHAT PROPERTY WAS
BEING USED, THE EXTENT OF THE USE, AND THE NET EARNINGS DERIVED FROM IT
OR ITS VALUE. 

THE PETITIONERS CHALLENGE THE DECISION ON THE GROUND THAT IT IS
CONTRARY TO THE TERMS OF THE ACT OF JUNE 18, 1934,  FN5  WHICH DIRECTS
THAT A TRUSTEE APPOINTED BY A COURT OF THE UNITED STATES WHO IS
AUTHORIZED TO CONDUCT ANY BUSINESS, OR DOES SO, SHALL BE SUBJECT TO ALL
STATE AND LOCAL TAXES APPLICABLE TO THE BUSINESS; AND ON THE FURTHER
GROUND THAT IT IS VIOLATIVE OF ACCEPTED PRINCIPLES OF EQUITABLE
ADMINISTRATION OF ESTATES IN RECEIVERSHIP OR REORGANIZATION. 

THE SITUATION HERE DIFFERS FROM THAT DISCLOSED IN THE PALMER CASE IN
THAT SEC. 77B CONTAINS NO PROVISION REQUIRING THE DEBTOR TO CONTINUE TO
OPERATE THE BUSINESS OF A LESSOR UPON REJECTION OF THE LEASE.  IT
FURTHER DIFFERS IN THAT, HERE, THE TRUSTEES HAVE NEITHER AFFIRMED NOR
DISAFFIRMED THE LEASES AND OPERATING AGREEMENTS.  ANOTHER DIFFERENCE IS
THAT, IN THE PRESENT INSTANCE, NONE OF THE LESSORS OR UNDERLYING
COMPANIES IS IN REORGANIZATION. 

NOTWITHSTANDING THE FACT THAT SEC. 77B GIVES NO SPECIFIC AUTHORITY TO
TRUSTEES IN REORGANIZATION TO REJECT BURDENSOME LEASES OR CONTRACTS, IT
IS WELL SETTLED THAT THEY HAVE THAT RIGHT AND ARE ACCORDED A REASONABLE
TIME WITHIN WHICH TO EXERCISE IT.  IF, IN THE OPINION OF THE OFFICERS
OF THE UNDERLYING COMPANIES, A REASONABLE TIME HAS EXPIRED THOSE
COMPANIES ARE NOT WITHOUT REDRESS.  THEY MAY DECLARE A FORFEITURE OF
THE LEASES AND ABROGATE THE AGREEMENTS FOR NONPERFORMANCE ON THE PART
OF THE TRUSTEES, OR THEY MAY APPLY TO THE DISTRICT COURT TO COMPEL AN
ELECTION BY THE TRUSTEES, TO AFFIRM OR DISAFFIRM.  IN THE MEANTIME, IF
THE SITUATION WERE SUCH AS TO PERMIT A PROPER CALCULATION OF THE AMOUNT
DUE FOR USE AND OCCUPATION, IT WOULD BE PROPER FOR THE COURT TO ORDER
THE TRUSTEES TO PAY A REASONABLE SUM TO BE TREATED AS A PAYMENT FOR USE
AND OCCUPATION IN THE EVENT THAT THE LEASES AND AGREEMENTS ARE
DISAFFIRMED OR, ON ACCOUNT OF RENT, IN THE EVENT THEY ARE AFFIRMED. 
BUT THIS RECORD FURNISHES NO BASIS FOR SUCH A CALCULATION.  THE MASTER
HAS FOUND, AND THE FINDING IS NOT CHALLENGED, THAT THERE ARE NO DATA
AVAILABLE FROM WHICH IT CAN BE DETERMINED WHAT IS THE VALUE OF THE
VARIOUS UNDERLYING PROPERTIES OR WHAT IS THE FAIR VALUE OF THEIR USE. 
IT IS EVIDENT THAT THE DEBTOR HAS WELDED THESE UNDERLYING PROPERTIES
INTO ONE SYSTEM IN SUCH FASHION THAT A SINGLE ROUTE OR A SINGLE
PASSENGER RIDE MAY INVOLVE THE USE OF A NUMBER OF THE UNDERLYING
COMPANIES' PROPERTIES.  ASCERTAINMENT OF A PROPER APPORTIONMENT OF THE
RECEIPTS OF THE SYSTEM AS A WHOLE TO THE RESPECTIVE CONTRIBUTIONS OF
THE UNDERLYING COMPANIES' PROPERTIES IS OBVIOUSLY ALMOST AN IMPOSSIBLE
TASK.  MOREOVER, SINCE THE UNDERLYING COMPANIES ARE SIMPLE CONTRACT
CREDITORS, AN OVERPAYMENT TO ANY ONE OF THEM MIGHT WORK A PREFERENCE AS
AGAINST OTHER SUCH CREDITORS, INCLUDING THE CITY OF PITTSBURGH AND THE
TORT CLAIMANTS WHO ARE RESPONDENTS HERE. 

IN THE LIGHT OF THESE FACTS, IT BECOMES EVIDENT THAT THE ACT OF 1934
HAS NO APPLICATION.  THE TRUSTEES ARE OPERATING THE BUSINESS OF THE
PITTSBURGH RAILWAYS COMPANY, A CORPORATION OF PENNSYLVANIA.  THE
DISTRICT COURT HAS ORDERED THEM TO PAY THE TAXES DUE BY THAT
CORPORATION AND BY ITS WHOLLY OWNED SUBSIDIARY, A BUS COMPANY.  IN THAT
ASPECT THE ORDER IS NOT ATTACKED.  BUT THE TRUSTEES ARE NOT OPERATING
THE BUSINESS OF THE VARIOUS UNDERLYING COMPANIES.  IT MAY WELL BE THAT
THE ONLY BUSINESS THOSE COMPANIES HAVE IS TO COLLECT OR ENFORCE PAYMENT
OF THE RENTALS AND CONSIDERATIONS DUE THEM UNDER THE RESPECTIVE LEASES
AND OPERATING AGREEMENTS.  BUT, EVEN SO, THAT BUSINESS IS NOT THE
BUSINESS OF THE PITTSBURGH RAILWAYS COMPANY AND THE TRUSTEES ARE NOT
TRUSTEES OF ANY SUCH BUSINESS. 

WHAT HAS BEEN SAID IN THE PALMER CASE NEED NOT BE AMPLIFIED IN THIS
CASE.  IT IS PLAIN THAT THE ACT OF 1934 IS INAPPLICABLE. 

THE PETITIONERS RECOGNIZE THAT THE AUTHORITIES CITED BY THEM IN WHICH
COURTS HAVING CHARGE OF RECEIVERSHIPS OR OF REORGANIZATION PROCEEDINGS
UNDER SEC. 77B HAVE ORDERED THE PAYMENT OF TAXES BY A RECEIVER OR BY
TRUSTEES DEALT ONLY WITH THE TAXES OF THE CORPORATION REPRESENTED BY
THE RECEIVER, OR FOR WHOSE BUSINESS THE TRUSTEES WERE APPOINTED.  THEY
CONTEND, HOWEVER, THAT THE SAME PRINCIPLE OUGHT TO APPLY HERE BECAUSE
THE SYSTEM OPERATED BY THE PITTSBURGH RAILWAYS COMPANY IS A UNIFIED
SYSTEM.  THEY URGE THAT THE BUSINESS IS A SINGLE BUSINESS.  THEY SHOW
THAT FOR THIRTY-SIX YEARS PRIOR TO THE FILING OF THE PETITION THE
IDENTITY OF THE LINES OF THE UNDERLYING COMPANIES HAS BEEN OBLITERATED
BY THE CREATION OF A UNIFIED SYSTEM OF RAILWAY TRANSPORTATION AND THEY
SAY THAT THE WHOLE BUSINESS SHOULD BE TREATED AS THAT OF THE PITTSBURGH
RAILWAYS COMPANY NOW CONDUCTED BY ITS TRUSTEES IN REORGANIZATION.  BUT,
AS WE HAVE SAID, THE UNDERLYING COMPANIES' RELATION TO THE PITTSBURGH
RAILWAYS COMPANY IS THAT OF CREDITOR AND DEBTOR AND NO PRINCIPLE OF
EQUITY JUSTIFIES IGNORING THAT RELATION WHEN, SO TO DO, MIGHT ADVERSELY
AFFECT THE CLAIMS OF OTHER CREDITORS. 

FOR THESE REASONS WE HOLD THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS WAS RIGHT AND SHOULD BE AFFIRMED.  AFFIRMED. 

FN1  SEC. 77B WAS ADOPTED JUNE 7, 1934, 48 STAT. 912, AND WAS AMENDED
AUG. 29, 1935, 49 STAT. 965, AND AUG. 12, 1937, 50 STAT. 622.  BY THE
TERMS OF THE CHANDLER ACT ADOPTED JUNE 22, 1938, 52 STAT. 840, 883, THE
PROVISIONS OF SEC. 77B WERE SUPERSEDED BY CHAPTER X OF THE BANKRUPTCY
ACT AND THAT CHAPTER WAS MADE APPLICABLE, SO FAR AS PRACTICABLE, IN
CASES PENDING WHEN THE ACT TOOK EFFECT.  THE PETITION IN THIS CASE WAS
FILED MAY 10, 1938, AND THE CHANDLER ACT BECAME EFFECTIVE SEPT. 22 OF
THAT YEAR. 

FN2  48 STAT. 993, 28 U.S.C. SEC. 124(A). 

FN3  THE TERMS OF THE ORDER ULTIMATELY ENTERED WITH RESPECT TO TAXES
OF THE DEBTOR AND ITS SUBSIDIARY ARE NOT HERE DRAWN IN QUESTION.    FN4
111 F.2D 932. 

FN5  SUPRA, NOTE 2. 
..END :









SUPERIOR BATH CO. V. MCCARROLL, 312 U.S. 176 


NO. 180.  SUBMITTED DECEMBER 18, 1940.  - DECIDED FEBRUARY 3, 1941.  -
200 ARK. 233 - 139 S.W.2D 378, AFFIRMED. 


1.  AN ARKANSAS CORPORATION WHICH LEASES FROM THE UNITED STATES AND
OPERATES FOR PROFIT A BATH HOUSE ON THE FEDERAL RESERVATION AT HOT
SPRINGS IS TAXABLE BY ARKANSAS ON ITS NET INCOME, UNDER AUTHORITY OF
THE ACT OF CONGRESS OF 1891, WHICH GIVES THE CONSENT OF THE UNITED
STATES TO "THE TAXATION, UNDER THE AUTHORITY OF THE LAWS OF THE STATE
OF ARKANSAS APPLICABLE TO THE EQUAL TAXATION OF PERSONAL PROPERTY IN
THAT STATE, AS PERSONAL PROPERTY OF ALL STRUCTURES AND OTHER PROPERTY
IN PRIVATE OWNERSHIP ON THE HOT SPRINGS RESERVATION."  P. 178. 

2.  THE ACT OF 1891 MAY NOT BE CONSTRUED AS CONSENTING ONLY TO AD
VALOREM TAXES IMPOSED DIRECTLY ON TANGIBLE PROPERTY.  P. 179. 

SUPERIOR BATH HOUSE CO. V. MCCARROLL, COMMISSIONER OF REVENUES OF
ARKANSAS. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

APPEAL FROM A DECREE SUSTAINING THE VALIDITY OF A STATE TAX. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

BY A 1929 ACT, ARKANSAS IMPOSED A TAX OF 2% ON THE NET INCOME OF
DOMESTIC CORPORATIONS "WITH RESPECT TO CARRYING ON OR DOING BUSINESS"
IN THE STATE.  FN1  APPELLANT, A CORPORATION ORGANIZED UNDER ARKANSAS
LAW, LEASES FROM THE UNITED STATES AND OPERATES FOR PROFIT A BATH HOUSE
ON THE FEDERAL RESERVATION AT HOT SPRINGS.  WHETHER APPELLANT IS
SUBJECT TO THE STATE TAX DEPENDS ON THE INTERPRETATION OF THE LANGUAGE
OF A PROVISION OF A CONGRESSIONAL ACT OF 1891 AND THE CORRESPONDING
PROVISION OF AN ARKANSAS ACT OF 1903.  THE CONGRESSIONAL ACT READS:
"THE CONSENT OF THE UNITED STATES IS HEREBY GIVEN FOR THE TAXATION,
UNDER THE AUTHORITY OF THE LAWS OF THE STATE OF ARKANSAS APPLICABLE TO
THE EQUAL TAXATION OF PERSONAL PROPERTY IN THAT STATE, AS PERSONAL
PROPERTY OF ALL STRUCTURES AND OTHER PROPERTY IN PRIVATE OWNERSHIP ON
THE HOT SPRINGS RESERVATION."  FN2  THE 1903 ARKANSAS ACT CEDED TO THE
UNITED STATES EXCLUSIVE JURISDICTION OVER THE BUSINESS AREA OF THE
RESERVATION, RESERVING ONLY THE RIGHT TO TAX ACCORDED BY THE 1891 ACT
AND THE RIGHT TO SERVE CRIMINAL AND CIVIL PROCESS.  FN3  THE SUPREME
COURT OF ARKANSAS HELD APPELLANT LIABLE FOR THE TAX, FN4  AND THE CASE
IS HERE ON APPEAL AS AUTHORIZED BY 28 U.S.C., SEC. 344. 

ARKANSAS DOES NOT CONTEND, NOR DID THE SUPREME COURT OF THAT STATE
HOLD, THAT APPELLANT WAS LIABLE FOR THE STATE INCOME TAX UNDER THE
GENERAL POWER OF THE STATE TO TAX CORPORATIONS CREATED PURSUANT TO
ARKANSAS LAW.  ON THE CONTRARY ARKANSAS ADMITS THAT UNDER THE
RECIPROCAL STATE AND FEDERAL ACTS THE UNITED STATES POSSESSES COMPLETE
SOVEREIGN POWER OVER THE HOT SPRINGS RESERVATION, SUBJECT TO THE RIGHT
OF THE STATE OF ARKANSAS TO TAX IN ACCORDANCE WITH THE 1891 ACT AND
SUBJECT TO ITS RIGHT TO EXECUTE WITHIN THE RESERVATION ITS CIVIL AND
CRIMINAL PROCESS.  THE STATE DOES NOT CLAIM A RIGHT OF ANY KIND TO TAX
ANY CORPORATION OR INDIVIDUAL DOING BUSINESS ON THE RESERVATION UNLESS
THE TAX COMES WITHIN THE SCOPE OF ITS AGREEMENT WITH THE GOVERNMENT,
EFFECTUATED BY THE 1891 AND 1903 FEDERAL AND STATE LEGISLATION.  SINCE
THE STATE HAS TAKEN THIS VIEW, AND SINCE IT IS OUR OPINION THAT THE TAX
CAN BE SUSTAINED ON THIS BASIS, IT IS UNNECESSARY FOR US TO DETERMINE
WHETHER ANY OTHER BASIS MIGHT CONCEIVABLY EXIST. 

WHILE NOT CONTROLLING HERE, IT HAS BEEN THE CONSISTENT CONVICTION OF
THE ARKANSAS COURT THAT THE FEDERAL LEGISLATION CONFERRED BROAD POWERS
OF TAXATION UPON THE STATE.  IN EX PARTE GAINES, 56 ARK. 227; 19 S.W.
602, DECIDED ONE YEAR AFTER THE ORIGINAL 1891 ACT, THE COURT HELD THAT
A LEASEHOLD INTEREST ON THE RESERVATION WAS SUBJECT TO STATE TAXATION. 
IN BUCKSTAFF BATH HOUSE CO. V. MCKINLEY, 198 ARK. 91; 127 S.W.2D 802,
FN5  THE COURT UPHELD THE STATE UNEMPLOYMENT COMPENSATION TAX, SAYING
OF THE 1891 ACT:  "THE CONGRESS SEEMINGLY INTENDED (AND THIS
CONSTRUCTION IS STRENGTHENED BY THE GAINES CASE) TO PERMIT THE STATE TO
EXERCISE ITS SOVEREIGNTY WITHIN THE RESERVATION WITH RESPECT TO THE
CONDUCT OF BUSINESS, COMMERCE, AND THE PROFESSIONS, SUBJECT ONLY TO THE
INTEREST RETAINED BY THE GOVERNMENT AND THE RIGHT TO ENFORCE
RESTRICTIONS UNDER THE FEDERAL LAWS  ...  " 

APPELLANT, HOWEVER, READS THE ACT MORE NARROWLY THAN DOES THE
ARKANSAS COURT, AND CONTENDS THAT THE ONLY TAXES ARKANSAS CAN LEVY ARE
AD VALOREM TAXES IMPOSED DIRECTLY ON TANGIBLE PROPERTY.  BUT THE WORDS
TANGIBLE AND AD VALOREM APPEAR NOWHERE IN THE ACT, NOR DO ANY
SYNONYMOUS WORDS THERE APPEAR.  AND IN OUR OPINION TO CONSTRUE THE ACT
AS THOUGH SUCH WORDS HAD BEEN USED WOULD DO VIOLENCE TO THE INTENT OF
CONGRESS.  THE LANGUAGE OF CONGRESS WAS PECULIARLY ADAPTED TO THE
BROADENING OF THE STATE'S TAXING POWER - NOT TO ITS RESTRICTION.  THUS,
THOUGH UNDER ARKANSAS LAW STRUCTURES ATTACHED TO LAND WERE CONSIDERED A
PART OF THE REALTY, TAXABLE OR NON-TAXABLE WITH THE LAND,  FN6
CONGRESS PROVIDED THAT PRIVATELY OWNED STRUCTURES ON THE TAX EXEMPT
LAND OF THE RESERVATION SHOULD BE TAXED "AS PERSONAL PROPERTY."  NOT
ONLY WAS THIS DONE, BUT ALSO ALL "OTHER PROPERTY IN PRIVATE OWNERSHIP"
WAS EXPRESSLY MADE SUBJECT TO STATE TAXATION.  BY THESE PROVISIONS
CONGRESS MANIFESTED ITS PURPOSE THAT NO TYPE OF PRIVATELY OWNED
PROPERTY SHOULD ESCAPE THE STATE'S TAXING POWER MERELY BECAUSE IT WAS
OWNED OR USED ON THE RESERVATION. 

AND APPELLANT'S INSISTENCE THAT THESE PROVISIONS PERMIT ONLY AD
VALOREM TAXATION LOSES SIGHT OF THE FACT THAT THE WORD PROPERTY IS BY
NO MEANS LIMITED, IN ALL ITS VARIATIONS, TO ACTUAL TANGIBLE PHYSICAL
THINGS.  FN7  ITS MEANING MUST BE DETERMINED FROM ITS CONTEXT AS
ILLUMINED BY THE SUBJECT TREATED AND THE OBJECTIVES SOUGHT.  IT IS TRUE
THAT ARKANSAS HAD NO CORPORATE INCOME TAX IN 1891, WHEN THE ORIGINAL
PERMISSION TO TAX WAS GRANTED.  BUT TAXATION POLICIES AND SYSTEMS
CHANGE WITH NECESSITIES AND EXPERIENCE, AND NO SUPPORT CAN BE FOUND IN
THE ACT FOR A BELIEF THAT CONGRESS CONSENTED TO STATE TAXATION ONLY IF
ARKANSAS WOULD MAKE ITS 1891 TAX SYSTEM STATIC.  IF WE ACCEPT
APPELLANT'S PREMISE THAT WHAT CONGRESS CONSENTED TO WAS AD VALOREM
TAXATION ONLY, WE MUST CONCLUDE THAT CONGRESS CONSENTED TO A TAX UNDER
WHICH ARKANSAS WAS COLLECTING VIRTUALLY ALL OF ITS REVENUES IN 1891. 
SINCE 1900, STATE GOVERNMENTS - ARKANSAS INCLUDED - HAVE TENDED TO
SECURE LESS AND LESS OF THEIR REVENUE FROM AD VALOREM TAXATION, AND
MORE AND MORE FROM TAXES OF OTHER TYPES.  FN8  THE ARKANSAS
LEGISLATURE, IN FACT, IN THE PREAMBLE TO THE 1929 INCOME TAX ACT, GAVE
AS A REASON FOR ITS ADOPTION THAT "AGRICULTURAL AND INDUSTRIAL
DEVELOPMENT IS NOW BEING RETARDED BECAUSE OF A POLICY TO SECURE
PRACTICALLY ALL OF THE REVENUE FROM AN ADVALOREM TAX, THUS PENALIZING
AND DISCOURAGING OWNERSHIP OF PROPERTY,  ...  "  FN9  THE NARROW
CONSTRUCTION OF THE ACT URGED BY APPELLANT - A CORPORATION CREATED
UNDER THE LAWS OF ARKANSAS - WOULD THUS RELIEVE IT FROM AN ARKANSAS TAX
ON CORPORATE INCOME ENACTED, AT LEAST IN PART, AS A SUBSTITUTE FOR
THOSE STATE AD VALOREM TAXES TO WHICH APPELLANT ADMITS IT IS SUBJECT. 
AND "THE PRIVILEGE OF USE IS ONLY ONE ATTRIBUTE, AMONG MANY, OF THE
BUNDLE OF PRIVILEGES THAT MAKES UP PROPERTY OR OWNERSHIP."  FN10  IT IS
OUR OPINION THAT THE DECISION BELOW MUST BE AFFIRMED.  FN11  AFFIRMED. 

FN1  ARK. ACTS (1929) NO. 118. 

FN2  26 STAT. 844.  THE QUOTED LANGUAGE WAS SEC. 5 OF A GENERAL ACT
DEALING WITH THE RESERVATION.  THE SECTION WAS ADDED AS A SENATE
AMENDMENT TO A HOUSE BILL, AND THE ONLY RELEVANT LEGISLATIVE REFERENCE
TO IT IS A STATEMENT BY THE HOUSE CONFEREES THAT "SECTION 5 PROVIDES
FOR LOCAL TAXATION OF THE BATH HOUSES, SO FAR AS THE CONSENT OF THE
UNITED STATES IS CONCERNED."  22 CONG. REC. 3513.  ARKANSAS, IN CEDING
EXCLUSIVE JURISDICTION OVER PART OF THE RESERVATION, EXPRESSLY REFERRED
TO THE TAXING POWERS CONFERRED BY THE 1891 ACT (ARK. ACTS (1903) NO.
30), AND LATER FEDERAL ACTS EXTENDING EXCLUSIVE FEDERAL JURISDICTION
OVER LARGER PORTIONS OF THE RESERVATION HAVE PROVIDED THAT SUCH
EXTENSION OF JURISDICTION SHALL "NOT BE SO CONSTRUED AS TO INTERFERE
WITH THE RIGHT TO TAX ALL STRUCTURES AND OTHER PROPERTY.  ..."  (E.G.,
33 STAT. 187.) 

FN3  ARK. ACTS (1903) NO. 30. 

FN4  200 ARK. 233; 139 S.W.2D 378.  IN ADDITION TO URGING THAT
ARKANSAS HAD NO POWER TO LEVY THIS TAX, APPELLANT HAD URGED THAT IT WAS
DENIED EQUAL PROTECTION BY VIRTUE OF A 1931 STATUTE EXEMPTING FROM THE
TAX THOSE DOMESTIC CORPORATIONS ORGANIZED FOR THE PURPOSE OF DOING
BUSINESS OUTSIDE THE STATE.  (ARK. ACTS (1931) NO. 220.)  THIS LATTER
CONTENTION IS WHOLLY WITHOUT MERIT, AND WILL NOT BE DISCUSSED. 

FN5  AFFIRMED ON OTHER GROUNDS, 308 U.S. 358. 

FN6  AT THE TIME OF THE 1891 ACT, THE ARKANSAS LAW PROVIDED THAT "THE
TERM 'REAL PROPERTY AND LANDS'  ...  SHALL BE HELD TO MEAN  ...  ALL
BUILDINGS, STRUCTURES AND IMPROVEMENTS, AND OTHER FIXTURES OF WHATEVER
KIND.  ...  "  ARK. STATS. (MANSFIELD, 1884) SEC. 5585.  SEE UNION
COMPRESS CO. V. STATE, 64 ARK. 136.  SUCH IS STILL THE ARKANSAS LAW. 
ARK. DIG.  STATS.  (POPE, 1937) SEC. 13358. 

FN7 CF. FIDELITY & DEPOSIT CO. V. ARENZ, 290 U.S. 66, 68. 

FN8 ARKANSAS, FOR EXAMPLE, RECEIVED APPROXIMATELY 77% OF ITS TOTAL
REVENUE FROM GENERAL PROPERTY TAXES IN 1915, WHILE IN 1937 THIS SOURCE
ACCOUNTED FOR ONLY 13%.  FINANCIAL STATISTICS OF STATES, 1915, TABLE 3,
PP. 66-67; ID., 1937, TABLE 5, PP. 36-41. 

FN9  ARK. ACTS (1929) NO. 118.  COMPARE THE PRECEDING FOOTNOTE. 

FN10  HENNEFORD V. SILAS MASON CO., 300 U.S. 577, 582. 

FN11  CF. BUCKSTAFF BATH HOUSE CO. V. MCKINLEY, 308 U.S. 358; COLLINS
V. YOSEMITE PARK & CURRY CO., 304 U.S. 518. 

MR. JUSTICE STONE, CONCURRING: 

MR. JUSTICE ROBERTS AND I CONCUR IN THE JUDGMENT OF THE COURT BUT
UPON DIFFERENT GROUNDS FROM THOSE STATED IN ITS OPINION. 

THE STATE COURT HAS HELD THAT SO FAR AS THE STATE CONSTITUTION AND
LAWS ARE INVOLVED IT HAS POWER TO LAY THE PRESENT TAX.  IT IS NO
CONCERN OF OURS WHAT REASONS ARE ASSIGNED FOR THAT CONCLUSION.  THE
ONLY QUESTION FOR DECISION HERE IS WHETHER THERE IS ANYTHING IN THE
ACTS OF CONGRESS ESTABLISHING THE RESERVATION OR IN THE RELATIONSHIP OF
THE TWO SOVEREIGNTIES, STATE AND NATIONAL, TO PREVENT THE STATE FROM
LAYING A TAX ON THE NET INCOME OF ITS OWN CORPORATION. 

IF THE CONSENT OF THE NATIONAL GOVERNMENT WERE NEEDFUL IN ORDER TO
SUSTAIN THE PRESENT TAX WE SHOULD HAVE DIFFICULTY IN FINDING THAT
CONSENT IN THE WORDS OF THE ACT OF CONGRESS AUTHORIZING THE STATE TO
TAX "ALL STRUCTURES AND OTHER PROPERTY IN PRIVATE OWNERSHIP ON THE  ...
RESERVATION."  BUT WE THINK THAT SUCH CONSENT IS UNNECESSARY TO ENABLE
A STATE TO TAX THE INCOME OF ITS OWN CORPORATIONS, DERIVED FROM
PROPERTY LOCATED ON THE RESERVATION.  IT IS ENOUGH THAT NO ACT OF
CONGRESS AND NO AGREEMENT BY THE STATE WITH THE FEDERAL GOVERNMENT
PROHIBITS THE TAX. 

THE FACT THAT INCOME-PRODUCING PROPERTY IS PHYSICALLY LOCATED ON THE
TERRITORY OF ANOTHER SOVEREIGNTY DOES NOT FORECLOSE THE STATE FROM
TAXING ITS OWN RESIDENTS AND CORPORATIONS ON THE INCOME DERIVED FROM
THE PROPERTY.  COHN V. GRAVES, 300 U.S. 308; LAWRENCE V. STATE TAX
COMM'N, 286 U.S. 276; SEE NEWARK FIRE INSURANCE CO. V. STATE BOARD, 307
U.S. 313.  WE HAVE RECENTLY HELD THAT SUCH A TAX IS NOT A TAX ON THE
INCOME-PRODUCING PROPERTY IN ANY SUCH SENSE AS TO PRECLUDE THE TAX FOR
WANT OF "JURISDICTION" OF THE STATE TO LAY IT.  COHN V. GRAVES, SUPRA,
313, 314; GRAVES V. O'KEEFE, 306 U.S. 466, 480.  THERE IS NO OCCASION
NOW TO GIVE RENEWED CURRENCY TO THE NOTION ERRONEOUSLY ATTRIBUTED TO
POLLOCK V. FARMERS' LOAN & TRUST CO., 157 U.S. 429; CF. COHN V. GRAVES,
SUPRA, 314, 315, THAT A TAX ON INCOME IS SUBJECT TO THE LIMITATIONS OF
A TAX ON THE PROPERTY WHICH PRODUCES IT. 

FOR THAT REASON IF ARKANSAS HAD MADE AN UNRESTRICTED GRANT OF THE
RESERVATION IT COULD NOT BE SAID TO HAVE RENOUNCED ITS AUTHORITY TO TAX
INCOME OF ITS CORPORATIONS OR CITIZENS DERIVED FROM PROPERTY ON THE
RESERVATION, MORE THAN IF IT WERE LOCATED IN THE DISTRICT OF COLUMBIA
OR IN ANOTHER STATE.  IT CLEARLY HAS NOT DONE SO BY RESERVING THE RIGHT
TO LAY A PROPERTY TAX WITHIN THE RESERVATION OR BY AGREEING THAT THE
UNITED STATES SHALL HAVE EXCLUSIVE JURISDICTION OVER IT FOR ANY OR FOR
EVERY PURPOSE.  THE STATE'S POWER TO LAY THE TAX, BEING INDEPENDENT OF
ITS JURISDICTION OVER THE CEDED TERRITORY, SUBSISTS UNLESS WAIVED OR
PROHIBITED BY COMPETENT AUTHORITY. 

WHATEVER CONSTITUTIONAL POWER THE FEDERAL GOVERNMENT MAY HAVE TO
PROHIBIT THE STATE TAXATION OF INCOME DERIVED FROM PROPERTY LOCATED ON
THE RESERVATION, REGARDED AS A FEDERAL INSTRUMENTALITY, IT IS PLAIN
THAT IT HAS NOT ASSUMED TO EXERCISE THE POWER.  GRAVES V. O'KEEFE,
SUPRA, 480.  SINCE THE STATE HAS NOT SURRENDERED ITS CONSTITUTIONAL
POWER TO TAX THE INCOME AND SINCE CONGRESS HAS NOT ASSUMED IN THE ACT
ESTABLISHING THE RESERVATION, OR OTHERWISE, TO PROHIBIT THE TAX, THE
POWER OF THE STATE IS UNIMPAIRED, UNLESS RESTRICTED BY ITS OWN
CONSTITUTION AND LAWS. 

MR. JUSTICE FRANKFURTER WHILE AGREEING WITH THE COURT'S OPINION ALSO
AGREES WITH THE VIEW EXPRESSED IN THIS OPINION. 
..END :



















HURON CORP. V. LINCOLN CO., 312 U.S. 183 


NO. 212.  ARGUED JANUARY 13, 1941.  - DECIDED FEBRUARY 3, 1941.  - 111
F.2D 438, REVERSED. 


PENDING APPEAL TO THE CIRCUIT COURT OF APPEALS FROM A JUDGMENT OF THE
FEDERAL DISTRICT COURT FOR IDAHO, A THIRD PARTY SUED THE JUDGMENT
CREDITOR IN A STATE COURT IN NEW YORK AND A WARRANT OF ATTACHMENT WAS
ISSUED ATTACHING THE JUDGMENT DEBT IN THE HANDS OF THE JUDGMENT DEBTOR
IN NEW YORK.  AFTER THE CIRCUIT COURT OF APPEALS HAD AFFIRMED THE
JUDGMENT OF THE DISTRICT COURT, BUT BEFORE THE MANDATE ISSUED, THE NEW
YORK COURT RENDERED JUDGMENT AGAINST THE JUDGMENT CREDITOR AND
EXECUTION WAS HAD AGAINST THE ATTACHED DEBT.  HELD: 

1.  THE VALIDITY OF THE ATTACHMENT WAS GOVERNED BY THE LAW OF NEW
YORK, AND BY THAT LAW THE ATTACHMENT WAS VALID.  P. 188. 

2.  HAVING PAID THE JUDGMENT DEBT UNDER COMPULSION OF THE EXECUTION,
THE JUDGMENT DEBTOR WAS ENTITLED TO HAVE THE JUDGMENT OF THE FEDERAL
COURT FOR IDAHO MARKED SATISFIED; AND THE SURETY WAS NOT CHARGEABLE ON
ITS SUPERSEDEAS BOND.  PP. 189, 194. 

HURON HOLDING CORPORATION ET AL. V. LINCOLN MINE OPERATING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 311 U.S. 625, TO REVIEW THE REVERSAL OF JUDGMENTS OF THE
DISTRICT COURT, 27 F.SUPP.  720, HOLDING THAT AN EARLIER JUDGMENT OF
THAT COURT HAD BEEN SATISFIED, AND DECLINING TO ENTER JUDGMENT AGAINST
THE SURETY ON A SUPERSEDEAS BOND. 

THE NEW YORK COURT HAD POWER TO ENFORCE ITS ATTACHMENT PROCEEDINGS
AGAINST HURON, A NEW YORK CORPORATION, AND ON THAT POWER WAS BASED ITS
JURISDICTION TO BIND THE NONRESIDENT JUDGMENT CREDITOR, LINCOLN, TO THE
EXTENT OF LINCOLN'S INTEREST IN THE JUDGMENT DEBT ATTACHED. 

THE STATE COURT PROCEEDINGS WERE REGULAR IN FORM, AND FULLY
AUTHORIZED BY THE STATUTES AND DECIDED LAW OF THE STATE OF NEW YORK. 

THE PROCEDURAL REGULARITY OF THE STATE COURT ATTACHMENT, JUDGMENT AND
EXECUTION, WAS FOUND BELOW AS A FACT, AND IS ADMITTED BY RESPONDENT. 

THE LAW OF NEW YORK AUTHORIZED THE ATTACHMENT OF A DEBT EVIDENCED BY
A JUDGMENT OBTAINED IN A FEDERAL COURT IN ANOTHER STATE. 

THE MONEY JUDGMENT IN THE DISTRICT COURT WAS AN ADJUDICATION OF
HURON'S DEBT TO LINCOLN AND REMAINED BINDING UPON BOTH PARTIES DURING
APPEAL; ALTHOUGH EXECUTION WAS STAYED IN THE DISTRICT COURT, THE
JUDGMENT WAS NOT VACATED, AND COULD BE SUED UPON IN A FOREIGN COURT. 

THE CIRCUIT COURT'S FAILURE TO JUDGE THE VALIDITY OF THE STATE COURT
ATTACHMENT IN ACCORDANCE WITH THE STATE LAW, AND ITS APPLICATION OF A
GENERAL FEDERAL RULE INSTEAD, IS CONTRARY TO THE PRINCIPLES LAID DOWN
BY THIS COURT IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 

THE DISTRICT COURT IN DECIDING THAT ITS JUDGMENT WAS SATISFIED BY
HURON AND THAT NO JUDGMENT SHOULD ISSUE AGAINST THE SURETY COMPANY,
CORRECTLY ADJUDGED THE ISSUES BEFORE IT AND GAVE DUE WEIGHT UNDER ITS
OWN LAW TO THE FACTS PROVED, INCLUDING THE VALIDITY OF THE STATE COURT
PROCEEDINGS AND HURON'S PRIOR PAYMENT OF THE JUDGMENT DEBT PURSUANT
THERETO. 

THE JURISDICTION OF THE STATE COURT IN THE ACTION AGAINST LINCOLN
DEPENDED SOLELY UPON ATTACHMENT PROCEEDINGS. 

THE ATTACHMENT PROCEEDINGS IN NEW YORK WERE VOID FOR THE REASON THAT
WHEN THE PROCEEDINGS WERE INITIATED AND WHEN THE ATTACHMENT WAS LEVIED,
THE JUDGMENT DEBT WAS NOT ATTACHABLE BECAUSE (A) IT WAS NOT ABSOLUTELY
PAYABLE AT THE TIME OR IN THE FUTURE, AND (B) PAYMENT OF THE DEBT WAS
DEPENDENT UPON A CONTINGENCY WHICH HAD NOT THEN HAPPENED. 

THE JURISDICTION OF THE DISTRICT COURT OF THE UNITED STATES AND THE
RIGHT OF THE PLAINTIFF TO PROSECUTE HIS SUIT IN THAT COURT HAVING
ATTACHED, THAT RIGHT CANNOT BE ARRESTED OR TAKEN AWAY BY ANY
PROCEEDINGS IN ANOTHER COURT.  WALLACE V. M'CONNELL, 13 PET. 136;
WABASH R. CO. V. TOURVILLE, 179 U.S. 322; UNITED STATES SHIPPING BOARD
CORP. V. HIRSH LUMBER CO., 59 APP. D.C. 116; 35 F.2D 1010; MACK V.
WINSLOW, 59 F. 316, 319; HENRY V. GOLD PARK MINING CO., 15 F. 649, 650;
THOMAS V. WOOLRIDGE, 23 FED. CAS. 986, 987, NO. 13,918; FRANKLIN V.
WARD, 9 FED. CAS. 711, NO. 5,055; MCDONALD V. MCDONALD, 56 IDA.  444,
457; 55 P.2D 827; FREEMAN, JUDGMENTS, 7TH ED. SEC. 622. 

THE JUDGMENT OF THE DISTRICT COURT WAS FINAL FOR THE PURPOSE OF
APPEAL, BUT IT WAS NOT FINAL IN THE SENSE THAT IT CONSTITUTED THE FINAL
LIQUIDATION OF A TORT CLAIM, THE CLAIM FOR DAMAGES STATED IN THE
PLEADING WHICH COMMENCED THE ACTION.  WAPLEE-PLATTER GROCER CO. V.
TEXAS PACIFIC RY. CO., 62 S.W. 265; DIBRELL V. NEELY, 61 MISS.  218;
KREISLE V. CAMPBELL, 32 S.W. 581(TEX.); BURKE V. HANCE, 76 TEX. 76. 

ERIE R. CO. V. TOMPKINS, 304 U.S. 64, HAS NOT CHANGED THE RULE THAT A
FEDERAL JUDGMENT MAY NOT BE ATTACHED IN A FOREIGN JURISDICTION. 

CONGRESS HAS PROVIDED FOR APPEALS, FOR COST AND SUPERSEDEAS BONDS (28
U.S.C. 869, 874), FOR EXECUTIONS (28 U.S.C. 727, 729), AND IN THIS
CONNECTION HAS VESTED THE FEDERAL COURTS WITH POWER AND AUTHORITY
NECESSARY FOR THE "TRIAL AND DISPOSITION OF THE CAUSE."  (28 U.S.C.
729). 

IN A LONG LINE OF DECISIONS THE FEDERAL COURTS HAVE CAREFULLY
PROTECTED FEDERAL JURISDICTIONS FROM INTERFERENCE BY STATE COURTS, OR
COURTS OF OTHER JURISDICTIONS.  RIGGS V. JOHNSON COUNTY, 6 WALL.  166,
187; COLLIN COUNTY NAT. BANK V. HUGHES, 152 F. 414; WAYMAN V. SOUTHARD,
10 WHEAT.  1, 22; BARBER ASPHALT PAVING CO. V. MORRIS, 132 F. 945; BRUN
V. MANN, 151 F. 145; CHICOT COUNTY V. SHERWOOD, 148 U.S. 529, 533, 534;
WEST V. AMERICAN TEL. & TEL. CO., 311 U.S. 223; NEIRBO CO. V. BETHLEHEM
CORP., 308 U.S. 165, 175. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE EFFECT A FEDERAL DISTRICT COURT SHOULD GIVE TO
STATE COURT PROCEEDINGS ATTACHING, WHILE APPEAL IS PENDING, A JUDGMENT
PREVIOUSLY RENDERED BY THE FEDERAL COURT. 

RESPONDENT, LINCOLN MINE OPERATING COMPANY, OBTAINED JUDGMENT AGAINST
PETITIONER, HURON HOLDING CORPORATION, IN THE FEDERAL DISTRICT COURT
FOR IDAHO.  PENDING APPEAL OF THIS JUDGMENT TO THE CIRCUIT COURT OF
APPEALS, A NEW YORK CREDITOR OF LINCOLN BROUGHT SUIT ON A PROMISSORY
NOTE AGAINST LINCOLN IN A STATE COURT OF NEW YORK.  UPON A SHOWING THAT
LINCOLN WAS AN IDAHO CORPORATION, THE NEW YORK COURT CAUSED A WARRANT
OF ATTACHMENT TO ISSUE AGAINST LINCOLN'S NEW YORK PROPERTY.  FN1 IN
ACCORDANCE WITH NEW YORK LAW,  FN2  SUMMONS UPON LINCOLN WAS SERVED BY
A DEPUTY SHERIFF OF ADA COUNTY, IDAHO.  HURON, A NEW YORK CORPORATION,
ANSWERED THE WARRANT OF ATTACHMENT SERVED UPON IT IN NEW YORK AND
ADMITTED THAT IT WAS THE DEFENDANT AGAINST WHICH JUDGMENT IN FAVOR OF
LINCOLN HAD BEEN ENTERED IN THE IDAHO DISTRICT COURT, AND THAT THE
JUDGMENT WAS STILL UNPAID, SUBJECT TO ITS RIGHT ON AN APPEAL THEN
PENDING.  AFTER THE CIRCUIT COURT OF APPEALS HAD AFFIRMED THE IDAHO
DISTRICT COURT JUDGMENT, BUT BEFORE THE MANDATE HAD BEEN SENT DOWN, THE
NEW YORK COURT RENDERED JUDGMENT AGAINST LINCOLN, EXECUTION WAS ISSUED,
AND UNDER THE WARRANT OF ATTACHMENT THE NEW YORK SHERIFF WAS COMMANDED
TO OBTAIN SATISFACTION OUT OF THE JUDGMENT OBLIGATION OF HURON TO
LINCOLN.  UNDER COMPULSION OF THE NEW YORK EXECUTION HURON PAID AND
THEN FILED A MOTION IN THE IDAHO COURT ASKING THAT THE FEDERAL COURT'S
JUDGMENT BE MARKED SATISFIED.  LINCOLN COUNTERED WITH A MOTION AGAINST
NATIONAL SURETY COMPANY, THE GUARANTOR ON HURON'S SUPERSEDEAS BOND IN
THE ORIGINAL ACTION, ASKING THAT JUDGMENT AGAINST THE SURETY BE ENTERED
IN FAVOR OF LINCOLN.  AFTER A HEARING ON BOTH MOTIONS, THE DISTRICT
COURT MADE FINDINGS OF FACT AND CONCLUSIONS OF LAW, HELD THAT THE
JUDGMENT HAD BEEN FULLY SATISFIED, AND DECLINED TO ENTER JUDGMENT
AGAINST THE SURETY.  FN3  THE CIRCUIT COURT OF APPEALS REVERSED.  FN4
BECAUSE THE ISSUES INVOLVED ARE IMPORTANT TO THE ORDERLY ADMINISTRATION
OF JUSTICE IN THE RELATIONSHIP OF STATE AND FEDERAL COURTS, WE GRANTED
CERTIORARI.  FN5 

PETITIONER CONTENDS THAT THE ATTACHMENT WAS VALID UNDER THE NEW YORK
LAW, AND SHOULD HAVE BEEN GIVEN FULL EFFECT BY THE FEDERAL COURT.  IT
IS RESPONDENT'S CONTENTION THAT (1) THE ATTACHMENT PROCEEDINGS WERE
VOID; AND (2) EVEN IF NOT VOID, THE DISTRICT COURT SHOULD NOT HAVE
GIVEN EFFECT TO THEM, FOR THE REASON THAT THIS WOULD BE TANTAMOUNT TO
AN IMPROPER DEPRIVATION OF LINCOLN'S RIGHT TO PROSECUTE ITS SUIT IN THE
DISTRICT COURT TO FULL PAYMENT OF THE JUDGMENT. 

FIRST.  HERE, NEW YORK LAW CLEARLY GOVERNED THE VALIDITY OF THE
ATTACHMENT PROCEEDINGS.  THE IDAHO DISTRICT COURT FOUND, AND IT IS NOT
DENIED, THAT THOSE PROCEEDINGS COMPLIED WITH THE FORMAL REQUIREMENTS OF
NEW YORK'S ATTACHMENT STATUTES.  BUT IT IS CONTENDED THAT AT THE TIME
OF THE LEVY THE NEW YORK COURT, UNDER NEW YORK LAW, WAS WITHOUT
JURISDICTION BECAUSE THE IDAHO JUDGMENT WAS THEN PENDING ON APPEAL AND
THEREFORE CONTINGENT.  RESPONDENT POINTS TO CERTAIN NEW YORK CASES
WHICH LAY DOWN THE GENERAL PROPOSITION THAT "AN INDEBTEDNESS IS NOT
ATTACHABLE UNLESS IT IS ABSOLUTELY PAYABLE AT PRESENT, OR IN THE
FUTURE, AND NOT DEPENDABLE UPON ANY CONTINGENCY."  FN6 BUT BOTH THE
DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS REJECTED THIS
ARGUMENT.  AND INDEED THE NEW YORK COURT ITSELF NECESSARILY PASSED UPON
THIS QUESTION, ADVERSELY TO RESPONDENT'S CONTENTION.  THE GARNISHEE'S
ANSWER IN THE NEW YORK COURT DISCLOSED THAT THE JUDGMENT WAS PENDING ON
APPEAL, AND THE NEW YORK COURT'S FINAL JUDGMENT WAS NOT RENDERED, NOR
EXECUTION ISSUED, UNTIL THE IDAHO JUDGMENT HAD BEEN AFFIRMED.  BY ITS
ACTION THE NEW YORK COURT NECESSARILY DECIDED THAT THE JUDGMENT DEBT
WAS WITHIN THE SCOPE OF NEW YORK'S ATTACHMENT LAWS.  AND NONE OF THE
NEW YORK AUTHORITIES TO WHICH THE RESPONDENTS DIRECT OUR ATTENTION
MILITATE AGAINST THE SOUNDNESS OF THE NEW YORK COURT'S RULING.  ON THE
CONTRARY, OTHER DECISIONS OF THE NEW YORK COURTS LEAD TO THE CONCLUSION
THAT THE JUDGMENT - EVEN THOUGH ON APPEAL - WAS SUFFICIENTLY DEFINITE
AND FINAL TO BRING IT WITHIN THE NEW YORK STATUTE.  FN7  TO THE SAME
EFFECT, IN THE FEDERAL COURTS THE GENERAL RULE HAS LONG BEEN RECOGNIZED
THAT WHILE APPEAL WITH PROPER SUPERSEDEAS STAYS EXECUTION OF THE
JUDGMENT, IT DOES NOT - UNTIL AND UNLESS REVERSED - DETRACT FROM ITS
DECISIVENESS AND FINALITY.  FN8 

SECOND.  RESPONDENT'S NEXT CONTENTION IS THAT EVEN THOUGH HURON WAS
COMPELLED TO PAY THE NEW YORK JUDGMENT AS A RESULT OF ATTACHMENT
PROCEEDINGS FULLY AUTHORIZED BY THE NEW YORK STATUTES, THE IDAHO
FEDERAL COURT NOT ONLY CAN BUT SHOULD REQUIRE A SECOND PAYMENT OF THE
SAME AMOUNT.  THE CIRCUIT COURT OF APPEALS SO HELD.  BUT SINCE HURON,
OWING A JUDGMENT DEBT TO LINCOLN, PAID IT TO A CREDITOR OF LINCOLN
UNDER A VALID NEW YORK JUDGMENT, IT CERTAINLY SHOULD NOT BE REQUIRED TO
PAY IT A SECOND TIME, EXCEPT FOR THE MOST COMPELLING REASONS.  "IT
OUGHT TO BE AND IT IS THE OBJECT OF COURTS TO PREVENT THE PAYMENT OF
ANY DEBT TWICE OVER."  FN9 

IT HAS NOT BEEN URGED HERE, NOR WAS IT URGED IN THE COURTS BELOW,
THAT HURON WAS GUILTY OF ANY NEGLIGENCE, MISCONDUCT OR FRAUD IN
CONNECTION WITH THE NEW YORK JUDGMENT.  IT HAS NOT BEEN CLAIMED THAT
THERE WAS A FAILURE TO GIVE LINCOLN NOTICE OF THE NEW YORK SUIT AGAINST
IT.  NO FEDERAL STATUTE OR CONSTITUTIONAL PROVISION IS INVOKED AS
SUPPORTING THE CONTENTION THAT THE IDAHO FEDERAL COURT WAS UNDER A DUTY
TO DISREGARD THE EFFECT OF THE PAYMENT MADE BY HURON UNDER THE
COMPULSION OF THE VALID NEW YORK JUDGMENT.  WHAT IS CONTENDED IS THAT
HISTORICALLY FEDERAL COURTS HAVE CARVED OUT A RULE TO PROTECT
THEMSELVES FROM INTERFERENCE BY STATE COURTS, AND THAT A PLAINTIFF IN A
FEDERAL COURT PROCEEDING HAS AN ABSOLUTE RIGHT TO PROSECUTE HIS SUIT
AND COLLECT HIS JUDGMENT IN THAT COURT - A RIGHT WHICH WOULD SOMEHOW BE
ARRESTED OR TAKEN AWAY BY GIVING EFFECT TO THE NEW YORK ATTACHMENT. 
THIS CONTENTION RESTS PRIMARILY UPON A STATEMENT OF THIS COURT IN
WALLACE V. M'CONNELL, 13 PET. 136, 151.  THAT CASE, A SUIT ON A
PROMISSORY NOTE, WAS BEGUN IN THE FEDERAL DISTRICT COURT FOR ALABAMA. 
WHILE IT WAS PENDING, A SUIT FOR COLLECTION OF THE NOTE, BASED ON ITS
ATTACHMENT, WAS INSTITUTED IN AN ALABAMA STATE COURT.  IN THE STATE
COURT ACTION, THOUGH TENTATIVE JUDGMENT WAS RENDERED AGAINST THE
FEDERAL COURT DEFENDANT AS GARNISHEE, THE MATTER WAS THEN STAYED FOR
SIX MONTHS BECAUSE NO JUDGMENT HAD YET BEEN RENDERED AGAINST THE STATE
COURT DEFENDANT.  AT THIS POINT, THEREFORE, ACTIONS INVOLVING THE SAME
ISSUES WERE CONCURRENTLY PENDING IN BOTH THE STATE AND THE FEDERAL
COURT WITHOUT FINAL DETERMINATION IN EITHER.  BEFORE FINAL
DETERMINATION OF THE STATE PROCEEDINGS, THE CASE CAME ON FOR DECISION
IN THE FEDERAL COURT.  THAT COURT OVERRULED DEFENDANT'S PLEA BASED ON
THE STATE COURT ATTACHMENT.  ON APPEAL, THIS COURT SAID:  "THE PLEA
SHOWS THAT THE PROCEEDINGS ON THE ATTACHMENT WERE INSTITUTED AFTER THE
COMMENCEMENT OF THIS SUIT.  THE JURISDICTION OF THE DISTRICT COURT OF
THE UNITED STATES, AND THE RIGHT OF THE PLAINTIFF TO PROSECUTE HIS SUIT
IN THAT COURT, HAVING ATTACHED, THAT RIGHT COULD NOT BE ARRESTED OR
TAKEN AWAY BY ANY PROCEEDING IN ANOTHER COURT.  THIS WOULD PRODUCE A
COLLISION IN THE JURISDICTION OF COURTS, THAT WOULD EXTREMELY EMBARRASS
THE ADMINISTRATION OF JUSTICE  ...  (THE DOCTRINE HERE ANNOUNCED) IS
ESSENTIAL TO THE PROTECTION OF THE RIGHTS OF THE GARNISHEE."  THE
CONCRETE QUESTION PRESENTED TO THE COURT THERE APPEARS TO HAVE BEEN
NOTHING MORE THAN A SITUATION IN WHICH TWO COURTS WERE CALLED UPON TO
LITIGATE THE SAME ISSUES AT THE SAME TIME.  FN10  SUCH IS NOT TRUE IN
THIS CASE. 

ANOTHER CASE RELIED ON BY RESPONDENT IS WABASH RAILROAD CO. V.
TOURVILLE, 179 U.S. 322.  BUT THAT CASE, INVOLVING ACTIONS IN THE
COURTS OF TWO STATES RATHER THAN IN A STATE AND A FEDERAL COURT, AS
HERE, DOES NOT SUPPORT RESPONDENT'S CONTENTION.  IN THAT CASE THIS
COURT DID NOT HOLD THAT STATE LAWS WITH REFERENCE TO ATTACHMENT AND
GARNISHMENT SHOULD NOT BE GIVEN EFFECT.  ON THE CONTRARY IT BASED ITS
DECISION UPON A HOLDING BY THE MISSOURI APPELLATE COURT THAT THE
ILLINOIS GARNISHMENT WAS VOID FOR FAILURE TO COMPLY WITH STATUTORY
REQUIREMENTS, AND UPON A RULING BY THE MISSOURI SUPREME COURT "THAT THE
JUDGMENT WAS FOREIGN TO ILLINOIS, AND THEREFORE NOT SUBJECT TO
GARNISHMENT THERE."  FN11  AFTER BASING ITS JUDGMENT ON THESE GROUNDS,
THE COURT ADDED A LAST STATEMENT TO THE EFFECT THAT "THIS COURT HAS
HELD THAT TO THE VALIDITY OF A PLEA OF ATTACHMENT THE ATTACHMENT MUST
HAVE PRECEDED THE COMMENCEMENT OF THE SUIT IN WHICH THE PLEA IS MADE. 
WALLACE V. M'CONNELL, 13 PET. 136."  WHATEVER MAY BE THE PRESENT DAY
EFFECT OF THE PRINCIPLE ANNOUNCED IN WALLACE V. M'CONNELL AND
REASSERTED IN THE TOURVILLE CASE, THAT PRINCIPLE HAS NO APPLICATION
HERE.  BUT IT IS SAID THAT A BROADER PRINCIPLE, STEMMING FROM THOSE
CASES, IS HERE APPLICABLE.  AND IT IS TRUE THAT SOME COURTS, BOTH STATE
AND FEDERAL, HAVE ADOPTED THE BROADER RULE FOR WHICH RESPONDENT
CONTENDS.  FN12  THE LEADING FEDERAL CASE ON THE SUBJECT IS THOMAS V.
WOOLDRIDGE, 23 FED. CAS. 986, NO. 13,918.  THE RULE IN THAT CASE, AS
ANNOUNCED BY JUSTICE BRADLEY ON CIRCUIT, WAS THAT "JUDGMENTS OF STATE
AND FEDERAL COURTS SHOULD NOT BE SUBJECT TO ATTACHMENTS ISSUED BY EACH
OTHER."  THE REASONS THERE GIVEN TO SUPPORT THIS RULE WERE:  THE DEBT
WAS QUASI IN CUSTODIA LEGIS; ATTACHMENTS OF IT WOULD THEREFORE
INTERFERE WITH THE COURT'S DIGNITY AND PREROGATIVES, EXCITE JEALOUSIES
AND BRING ABOUT CONFLICTS OF JURISDICTION; MANY RIGHTS ARE STILL LEFT
FOR ADJUSTMENT AFTER JUDGMENT AND THEREFORE ATTACHMENT OF A COURT'S
JUDGMENT WOULD BE AN INCONVENIENT, DANGEROUS AND POTENTIALLY FRAUD
RIDDEN INTERFERENCE WITH JUDICIAL PROCEEDINGS.  JUSTICE BRADLEY WAS
ALSO OF OPINION THAT RECOGNITION OF THIS RULE WAS PRACTICALLY COMPELLED
BY WALLACE V. M'CONNELL. 

IT IS OUR OPINION THAT NO SUCH BROAD GENERAL RULE EXISTS.  THIS DOES
NOT, HOWEVER, MEAN THAT A COURT WHICH HAS RENDERED A JUDGMENT IS
WITHOUT POWER TO EXERCISE JURISDICTION, WHEN PROPERLY INVOKED, TO
ADJUDICATE NEWLY ASSERTED RIGHTS RELATED TO THE JUDGMENT DEBT.  IT DOES
MEAN THAT LATER OPINIONS OF THIS COURT HAVE UNDERMINED THE BASIC
REASONING UPON WHICH JUSTICE BRADLEY RELIED IN DECLARING THAT JUDGMENTS
IN A FEDERAL COURT WERE NEVER SUBJECT TO ATTACHMENT ELSEWHERE.  FOR IT
IS NOW SETTLED THAT ATTACHMENT IS WHOLLY THE CREATURE OF, AND
CONTROLLED BY, THE LAW OF THE STATE; PROPERTY AND PERSONS WITHIN THE
STATE CAN BE SUBJECTED TO THE OPERATION OF THAT LOCAL LAW; POWER OVER
THE PERSON WHO OWES A DEBT CONFERS JURISDICTION ON THE COURTS OF THE
STATE WHERE THE WRIT OF ATTACHMENT ISSUES; AND BY REASON OF THE
CONSTITUTIONAL REQUIREMENT THAT FULL FAITH AND CREDIT BE GIVEN THE
VALID ACTIONS OF A STATE, COURTS OF ONE STATE MUST RECOGNIZE VALID
ATTACHMENT JUDGMENTS OF OTHER STATES.  FN13  AND UNDER CONGRESSIONAL
ENACTMENT FEDERAL COURTS MUST ALSO GIVE FULL FAITH AND CREDIT.  FN14
THESE LATER DECISIONS ARE BUT A RECOGNITION OF THE GREATLY DEVELOPED
STATUTORY USE OF ATTACHMENT BY THE STATES, A DEVELOPMENT BROUGHT ABOUT
BY THE INCREASED MOBILITY OF PERSONS AND PROPERTY AND THE EXPANDED AREA
OF BUSINESS RELATIONSHIPS.  WHATEVER MAY HAVE BEEN THE NECESSITY FOR
THE RULE IN OTHER TIMES, IT DOES NOT FIT ITS PRESENT DAY ENVIRONMENT. 

FURTHER, WE DO NOT HERE, AS IN WALLACE V. M'CONNELL, HAVE A CASE IN
WHICH TWO COURTS ARE PROCEEDING IN THE SAME MATTER AT THE SAME TIME. 
THE NEW YORK COURT HAS PROCEEDED UNDER NEW YORK LAW TO FINAL JUDGMENT. 
IT HAS COMPELLED OBEDIENCE TO ITS JUDGMENT.  THE NEW YORK PROCEEDINGS
DID NOT ARREST OR TAKE AWAY THE RIGHT OF LINCOLN TO TRY OUT ITS ISSUES
WITH HURON IN THE FEDERAL COURT FOR IDAHO.  THOSE ISSUES HAD ALREADY
BEEN TRIED AND DETERMINED IN THAT COURT, AND ITS JURISDICTION TO ADJUST
AND ADJUDICATE NEWLY ASSERTED RIGHTS RELATING TO THE JUDGMENT HAD NOT
BEEN INVOKED.  THERE WAS THEREFORE NO POSSIBILITY OF COLLISION BETWEEN
THE TWO COURTS, FOR SIMILAR ISSUES WERE NOT PENDING BEFORE THEM AT THE
SAME TIME.  IN FACT, FAR FROM COLLIDING WITH THE IDAHO COURT, THE NEW
YORK COURT ACCEPTED AS FINAL THAT COURT'S DETERMINATION OF THE ISSUES
THAT IT HAD PASSED ON. FOR THE SUIT IN NEW YORK WAS BASED ON THE IDAHO
JUDGMENT, AND NOT ON THE ORIGINAL CAUSE OF ACTION, AND "A CAUSE OF
ACTION ON A JUDGMENT IS DIFFERENT FROM THAT UPON WHICH THE JUDGMENT WAS
ENTERED."  FN15 

BOTH THE IDAHO FEDERAL COURT AND THE NEW YORK STATE COURT DECIDED
MATTERS WITHIN THE RESPECTIVE AUTHORITY OF EACH.  TO GIVE EFFECT TO THE
JUDGMENT RENDERED IN THE NEW YORK ATTACHMENT PROCEEDINGS CANNOT, IN ANY
MANNER, INTERFERE WITH THE JURISDICTION OF THE IDAHO COURT.  WHILE THE
IDAHO COURT DID HAVE AUTHORITY TO ISSUE AN EXECUTION FOR THE COLLECTION
OF AN UNPAID JUDGMENT, IT WOULD NOT HAVE ENFORCED AN EXECUTION FOR THE
BENEFIT OF LINCOLN IF THE JUDGMENT HAD PREVIOUSLY BEEN PAID DIRECTLY TO
LINCOLN.  NOR SHOULD IT ISSUE AN EXECUTION WHEN THE MONEY WAS PAID TO
LINCOLN'S CREDITORS BY REASON OF VALID ATTACHMENT PROCEEDINGS.  FOR
THIS WOULD BE TO EXERCISE THE JURISDICTION OF A FEDERAL COURT TO RENDER
INEFFECTIVE THAT PROTECTION WHICH A GARNISHEE SHOULD BE AFFORDED BY
REASON OF HAVING OBEYED A JUDGMENT RENDERED BY A STATE IN THE EXERCISE
OF ITS CONSTITUTIONAL POWER OVER PERSONS AND PROPERTY WITHIN ITS
TERRITORY.  FN16  TO TAKE SUCH A STEP WOULD CONSTITUTE A DENIAL OF THAT
FULL FAITH AND CREDIT WHICH A FEDERAL COURT SHOULD GIVE TO THE ACTS OF
A STATE COURT.  FN17 

THE DISTRICT COURT PROPERLY ORDERED THAT ITS JUDGMENT BE MARKED
SATISFIED, AND CORRECTLY REFUSED TO RENDER JUDGMENT ON THE SUPERSEDEAS
BOND.  THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED, AND
THE JUDGMENTS OF THE DISTRICT COURT ARE AFFIRMED.  REVERSED. 

FN1  SECTIONS 902 AND 903 OF ART. 54 OF THE NEW YORK CIVIL PRACTICE
ACT AUTHORIZE COURTS TO ISSUE WARRANTS OF ATTACHMENT AGAINST DEFENDANTS
SHOWN TO BE FOREIGN CORPORATIONS IN ACTIONS AGAINST THEM BASED ON
"BREACH OF CONTRACT, EXPRESS OR IMPLIED,  ...  " 

FN2  SECTION 233, ART. 25, NEW YORK CIVIL PRACTICE ACT. 

FN3  27 F.SUPP.  720. 

FN4  111 F.2D 438. 

FN5  311 U.S. 625. 

FN6  HERRMANN & GRACE V. CITY OF NEW YORK, 130 APP. DIV. 531; 114
N.Y.S. 1107, 1110, AFFIRMED, 199 N.Y. 600; 93 N.E. 376.  OTHER CASES
CITED BY RESPONDENT WHICH SET OUT THE SAME GENERAL PRINCIPLE ARE:
FREDRICK V. CHICAGO BEARING METAL CO., 221 APP. DIV. 588; 224 N.Y.S.
629, 630; REIFMAN V. WARFIELD CO., 170 MISC. 8; 8 N.Y.S.2D 591, 592;
SHEEHY V. MADISON SQUARE GARDEN CORP., 266 N.Y. 44, 47; 193 N.E. 633. 

FN7  SHIPMAN COAL CO. V. DELAWARE & HUDSON CO., 219 APP. DIV. 312;
219 N.Y.S. 628, AFFIRMED, 245 N.Y. 567; 157 N.E. 859.  IN DETERMINING
WHAT IS THE LAW OF A STATE, WE LOOK TO THE DECISIONS OF LOWER STATE
COURTS AS WELL AS TO THOSE OF THE STATE'S HIGHEST COURT, AND FOLLOW THE
SAME LINE OF INQUIRY RECENTLY POINTED OUT IN WEST V. AMERICAN TELEPHONE
& TELEGRAPH CO., 311 U.S. 223.  AND SEE ERIE RAILROAD CO. V. TOMPKINS,
304 U.S. 64. 

FN8  E.G., RAILWAY CO. V. TWOMBLY, 100 U.S. 78; DEPOSIT BANK V.
FRANKFORT, 191 U.S. 499. 

FN9  HARRIS V. BALK, 198 U.S. 215, 226. 

FN10  CF. PRINCESS LIDA V. THOMPSON, 305 U.S. 456, 466; INSURANCE
COMPANY V. HARRIS, 97 U.S. 331. 

FN11  IF BY THIS THE COURT MEANT THAT UNDER ILLINOIS LAW SUCH A
JUDGMENT WAS NOT SUBJECT TO GARNISHMENT, THE CASE IS NOTHING MORE THAN
A HOLDING THAT ONE STATE NEED NOT GIVE FULL FAITH AND CREDIT TO A VOID
ACT OF A SISTER STATE.  BUT BOTH THE MISSOURI SUPREME COURT (148 MO.
614, 624; 50 S.W. 300) AND THIS COURT (179 U.S. 322, 327) CITED DRAKE
ON ATTACHMENTS (7TH ED. 1891) SEC. 625 FOR THE PROPOSITION THAT BY THE
WEIGHT OF AUTHORITY A JUDGMENT OF ONE COURT WAS NOT SUBJECT TO
ATTACHMENT IN ANOTHER COURT.  THIS CITATION OF THE "WEIGHT OF
AUTHORITY" MIGHT INDICATE THAT THIS COURT WAS DECIDING THE ISSUE AS A
QUESTION OF "GENERAL LAW," UNDER SWIFT V. TYSON, 16 PET. 1.  IF SO,
THIS ASPECT OF THE DECISION IS NO LONGER OF ANY WEIGHT.  ERIE RAILROAD
CO. V. TOMPKINS, 304 U.S. 64. 

FN12  E.G., THOMAS V. WOOLDRIDGE, 23 FED. CAS. 986, NO. 13,918;
UNITED STATES SHIPPING BOARD MERCHANT FLEET CORP. V. HIRSCH LUMBER CO.,
59 APP. D.C. 116; 35 F.2D 1010; ELSON V. CHICAGO, R.I. & P. RY., 154
IOWA 96; 134 N.W. 547.  CONTRA:  SHIPMAN COAL CO. V. DELAWARE & HUDSON
CO., 219 APP. DIV. 312; 219 N.Y.S. 628; AFFIRMED, 245 N.Y. 567; 157
N.E. 859; FITHIAN V. NEW YORK & ERIE R. CO., 31 PA. 114.  AND COMPARE
MCNISH V. BURCH, 49 S.D. 215; 207 N.W. 85, WITH HARDWICK V. HARRIS, 22
N.M. 394; 163 P. 253. 

FN13  E.G., HARRIS V. BALK, 198 U.S. 215, 222; LOUISVILLE & NASHVILLE
R. CO. V. DEER, 200 U.S. 176, 178; BALTIMORE & OHIO R. CO. V.
HOSTETTER, 240 U.S. 620. 

FN14  1 STAT. 122, AS AMENDED, 28 U.S.C. SEC. 687.  AND SEE NOTE 17,
INFRA. 

FN15  MILWAUKEE COUNTY V. M.E. WHITE CO., 296 U.S. 268, 275. 

FN16  CF. UNITED STATES V. KLEIN, 303 U.S. 276, 281-282. 

FN17  PENNOYER V. NEFF, 95 U.S. 714, 733; GOLDEY V. MORNING NEWS, 156
U.S. 518, 521; COOPER V. NEWELL, 173 U.S. 555, 567-568; DAVIS V. DAVIS,
305 U.S. 32, 39-40. 
..END :





ARMOUR & CO. V. ALTON R. CO., 312 U.S. 195 


NO. 293.  ARGUED JANUARY 14, 1941.  - DECIDED FEBRUARY 3, 1941.  - 111
F.2D 913, AFFIRMED. 


UPON THE BASIS OF THE ALLEGATIONS OF A COMPLAINT FILED IN THE DISTRICT
COURT IN THIS CASE, WHEREIN A PACKER SEEKS TO COMPEL RAILROAD COMPANIES
TO DELIVER SHIPMENTS OF LIVESTOCK AT SUCH A LOCATION AND IN SUCH MANNER
THAT IT NEED NOT PAY A "YARDAGE CHARGE" TO A STOCKYARD COMPANY
(CONTRARY TO A CUSTOM OF LONG STANDING), HELD THAT, AS DETERMINATION OF
MANY COMPLEX TRANSPORTATION PROBLEMS WAS PREREQUISITE TO A DECISION,
THE CAUSE WAS WITHIN THE PRIMARY JURISDICTION OF THE INTERSTATE
COMMERCE COMMISSION AND THE COMPLAINT WAS PROPERLY DISMISSED.  PP. 200,
202. 

ARMOUR & COMPANY V. ALTON RAILROAD CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 311 U.S. 627, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A BILL OF COMPLAINT, 27 F.SUPP.  625. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS LITIGATION IS THE LATEST EPISODE OF A LONG STRUGGLE INVOLVING
THE MEAT PACKERS, THE RAILROADS, AND THE UNION STOCK YARD AND TRANSIT
COMPANY OF CHICAGO.  FN1  BASICALLY, ON THE MERITS THE ISSUE HERE
PRESENTED IS WHETHER ARMOUR AND COMPANY, ONE OF THE PACKERS, IS CORRECT
IN ITS CONTENTION THAT UNDER THE FACTS OF THIS CASE THE RAILROADS MUST
DELIVER ITS SHIPMENTS OF LIVESTOCK AT SUCH A LOCATION AND IN SUCH A
MANNER THAT IT NEED PAY NO "YARDAGE CHARGE" TO THE STOCK YARDS
COMPANY.  THE CASE IS HERE ON CERTIORARI (311 U.S. 627) FROM THE COURT
OF APPEALS FOR THE SEVENTH CIRCUIT,  FN2  WHICH AFFIRMED A DISTRICT
COURT ORDER DISMISSING ARMOUR'S COMPLAINT AGAINST THE RAILROADS.  FN3
THE GROUND ON WHICH THE CIRCUIT COURT AFFIRMED WAS THAT THE ISSUES
INVOLVED PRESENTED ADMINISTRATIVE PROBLEMS, NECESSITATING PRIMARY
RESORT TO THE INTERSTATE COMMERCE COMMISSION.  FN4  THE SOLE QUESTION
WE FIND IT NECESSARY TO DECIDE IS WHETHER THE CIRCUIT COURT WAS CORRECT
IN THIS CONCLUSION. 

IT IS PETITIONER'S CONTENTION THAT ITS COMPLAINT SHOWED A WILFUL
FAILURE AND REFUSAL ON THE PART OF THE RAILROADS TO DELIVER LIVESTOCK
TO PETITIONER IN ACCORDANCE WITH THE RAILROADS' CONTRACTUAL AND COMMON
LAW DUTIES; THAT INSTEAD OF DELIVERING TO PETITIONER, THE RAILROADS
DELIVERED TO THE STOCK YARDS COMPANY - CONTRARY TO PETITIONER'S EXPRESS
DIRECTION - WITH FULL KNOWLEDGE THAT THE STOCK YARDS COMPANY WOULD NOT
EFFECT A DELIVERY TO PETITIONER WITHOUT FIRST EXACTING A YARDAGE CHARGE
IN ADDITION TO THE AGREED TRANSPORTATION CHARGES SET OUT IN THE
RAILROADS' REGULAR PUBLISHED TARIFFS; AND THAT PETITIONER'S RIGHT TO
PROCEED IN THE COURTS FOR SUCH A BREACH OF DUTY EXISTS UNDER THE
PROVISIONS OF 49 U.S.C., SECS. 9 AND 22.  FN5  BUT RESPONDENTS CONTEND,
AND BOTH COURTS BELOW HELD, THAT THE ISSUES TENDERED BY THE COMPLAINT
ARE NOT SO SIMPLE AS PETITIONER WOULD HAVE THEM SEEM.  THEIR VIEW IS
THAT ADJUDICATION OF THE ISSUES PRESENTED RELATES TO SUCH COMPLEX
TRANSPORTATION PROBLEMS THAT DETERMINATION OF THE LEGAL QUESTIONS MUST
NECESSARILY BE PRECEDED BY THE CONSIDERATION OF EXTENSIVE EVIDENCE IN A
SPECIALIZED FIELD, AND THAT DECISION OF SUCH QUESTIONS IS BY STATUTE
VESTED EXCLUSIVELY IN THE INTERSTATE COMMERCE COMMISSION.  FN6  SINCE
THE CAUSE WAS DISMISSED WITHOUT ANSWER OR EVIDENCE, IT IS ON THE BASIS
OF THE ALLEGATIONS OF THE COMPLAINT THAT WE MUST APPLY THE CONTROLLING
LAW. 

THE FACTUAL SITUATION, ACCORDING TO THE COMPLAINT, IS AS FOLLOWS:
FOR MANY YEARS PRIOR TO 1933 THE RAILROADS HELD THEMSELVES OUT AS READY
TO TRANSPORT GOODS TO "UNION STOCK YARDS, ILLINOIS," AND PETITIONER
SHIPPED TO ITSELF AT THAT STATION MUCH LIVESTOCK FROM VARIOUS POINTS OF
ORIGIN IN THE UNITED STATES.  NONE OF THE RAILROADS OWN OR OPERATE A
DEPOT OR TERMINAL FACILITIES FOR THE UNLOADING AND DELIVERY OF
LIVESTOCK, BUT ALL OF THEM JOINTLY HAVE LONG HAD ARRANGEMENTS WITH THE
"UNION STOCK YARD AND TRANSIT COMPANY," A PUBLIC STOCK YARD, FOR THE
USE OF ITS TERMINAL FACILITIES.  THIS PUBLIC STOCK YARD IS A COMMON
CARRIER, SUBJECT IN SOME RESPECTS TO THE JURISDICTION OF THE INTERSTATE
COMMERCE COMMISSION, AND IN OTHERS TO THAT OF THE SECRETARY OF
AGRICULTURE.  ITS UNLOADING CHARGES, FIXED ACCORDING TO A TARIFF
PUBLISHED AND ON FILE WITH THE INTERSTATE COMMERCE COMMISSION, ARE
COLLECTED BY THE RAILROADS FROM PETITIONER AND OTHER SHIPPERS AND ARE
IN TURN PAID TO THE STOCK YARDS COMPANY.  FN7  THIS CHARGE, HOWEVER,
DOES NOT INCLUDE PAYMENT FOR USE OF THE FACILITIES AFTER UNLOADING AND
BEFORE DELIVERY TO CONSIGNEES, OR FOR ANY SERVICES THEN PERFORMED.  TO
COVER THESE ITEMS, THE STOCK YARDS COMPANY COLLECTS AN ADDITIONAL
CHARGE, SINCE 1921 CONTAINED IN A TARIFF FILED WITH THE SECRETARY OF
AGRICULTURE,  FN8  AND IT IS THIS CHARGE WHICH IS AT THE ROOT OF THE
PRESENT CONTROVERSY. 

IN 1933 PETITIONER, WITHOUT RESORT TO THE INTERSTATE COMMERCE
COMMISSION, DEMANDED THAT THE RAILROADS ALTER THIS LONG-STANDING
PRACTICE SO AS TO RELIEVE IT FROM PAYMENT OF THIS ADDITIONAL CHARGE. 
PURSUANT TO ITS PURPOSE, PETITIONER NOTIFIED THE RAILROADS THAT IT
WOULD NOT THEREAFTER UTILIZE ANY SERVICES AFTER UNLOADING; ASKED THAT
TENDER OF DELIVERY BE MADE TO IT IMMEDIATELY AFTER UNLOADING SO THAT IT
COULD REMOVE ITS STOCK TO ITS OWN PLANT; AVOWED ITS READINESS
THEREAFTER TO ACCEPT DELIVERY AT SUCH "REASONABLE AND PROPER DELIVERY
PENS OF THE CARRIER" AT "UNION STOCK YARDS, ILLINOIS," AS MIGHT BE
PROVIDED BY THE RAILROADS; DEMANDED THAT THE RAILROADS EITHER DIRECTLY
OR THROUGH THEIR AGENT, THE STOCK YARDS COMPANY, DELIVER THE CONSIGNED
STOCK TO PETITIONER WITHOUT ANY CHARGES EXCEPT THOSE PAID FOR
TRANSPORTATION; AND DECLARED THAT DELIVERY TO THE STOCK YARDS COMPANY
CONTRARY TO PETITIONER'S DEMAND WOULD BE TREATED AS A CONVERSION OF
PROPERTY FOR WHICH THE RAILROADS WOULD BE HELD RESPONSIBLE. 
NOTWITHSTANDING THIS DEMAND THE RAILROADS CONTINUED TO DELIVER
PETITIONER'S CONSIGNMENTS TO THE STOCK YARDS COMPANY AND THAT COMPANY,
OVER PETITIONER'S PROTEST, CONTINUED TO EXACT THE CONTROVERTED CHARGE. 
THE RAILROAD COMPANIES KNEW THAT DELIVERY TO PETITIONER WOULD ONLY BE
MADE BY THE STOCK YARDS COMPANY ON COMPANY PROPERTY AND WITH NO MEANS
OF EGRESS SAVE BY CROSSING OTHER PROPERTY OF THE COMPANY, FOR WHICH
PRIVILEGE A CHARGE WOULD BE EXACTED. 

THE COMPLAINT ADDS THAT IN SPITE OF THIS DEMAND THE RAILROADS HAVE
"CONTINUOUSLY REFUSED TO PROVIDE OR ESTABLISH BY LEASE OR OTHERWISE AT
THEIR SAID COMMON STATION, UNION STOCK YARDS, ILLINOIS, ANY DEPOT OR
PLATFORMS, PENS OR FACILITIES" WHERE PETITIONER MIGHT ACCEPT DELIVERY
OF ITS STOCK WITHOUT PAYMENT OF THE CONTROVERTED CHARGE, AND HAVE ALSO
"FAILED TO MAKE ANY ARRANGEMENT WITH ITS SAID AGENT UNDER  ...  WHICH
THE PLAINTIFF MIGHT HAVE FREE INGRESS  ...  AND EGRESS  ...  TO A
PUBLIC STREET."  SPECIFICALLY, TWO BREACHES ARE ALLEGED:  (1) A BREACH
OF DUTY IN FAILING "TO PROVIDE REASONABLY CONVENIENT, ACCESSIBLE AND
SAFE UNLOADING PENS, AT THE SAID COMMON DEPOT OR STATION, AT WHICH SUCH
LIVESTOCK COULD BE TENDERED TO PLAINTIFF"; AND (2) A BREACH OF CONTRACT
IN "FAILING TO AFFORD TO PLAINTIFF AN OPPORTUNITY OF RECEIVING ITS
LIVESTOCK AND OF REMOVING THE SAME WITH REASONABLE PROMPTNESS FROM THE
UNLOADING PENS USED BY DEFENDANTS AT UNION STOCK YARDS, CHICAGO,
ILLINOIS, OR FROM ANY POINT AT WHICH DELIVERY THEREOF IS TENDERED,  ...
" THE CONTRACT RELIED ON PROVIDES "THAT THE CARRIER HAS RECEIVED FROM
THE SHIPPER  ...  THE LIVESTOCK  ...  CONSIGNED AND DESTINED AS
INDICATED BELOW, WHICH THE CARRIER AGREES TO CARRY TO ITS USUAL PLACE
OF DELIVERY AT SAID DESTINATION,  ...  "  THE USUAL PLACE OF DELIVERY
FOR LIVESTOCK SHIPPED TO UNION STOCK YARDS, CHICAGO, ILLINOIS, AND
INDEED THE ONLY PLACE OF DELIVERY EVER UTILIZED AT THAT STATION SO FAR
AS THE COMPLAINT SHOWS IS THE PUBLIC STOCK YARDS. 

THE COMPLAINT CONCLUDES WITH A PRAYER FOR AFFIRMATIVE RELIEF:  AN
ADJUDICATION THAT PETITIONER IS ENTITLED TO DELIVERY FREE OF ANY
CHARGES OTHER THAN THOSE FILED WITH THE INTERSTATE COMMERCE COMMISSION;
A MANDATORY INJUNCTION TO REQUIRE SUCH DELIVERY; AND AN ACCOUNTING FOR
THOSE CHARGES PAID UNDER PROTEST. 

THIS STATEMENT OF THE FACTS ALLEGED IN THE COMPLAINT REVEALS THAT
THERE ARE MANY QUESTIONS RELATING TO COMPLEX TRANSPORTATION PROBLEMS
THAT MUST BE SOLVED AS A PREREQUISITE TO A DETERMINATION OF WHETHER THE
RAILROADS, IN VIOLATION OF CONTRACTS OR GOVERNING LAWS, HAVE FAILED
PROPERLY TO DELIVER PETITIONER'S LIVESTOCK.  FN9  FOR ILLUSTRATION: 

FIRST.  AT WHAT POINT DID THE COMMON CARRIERS' DUTY TO TRANSPORT COME
TO AN END?  NEITHER THE STATUTE NOR ANY APPLICABLE PRINCIPLE OF
GOVERNING LAW CAN BE SAID TO MARK THIS BOUNDARY, UNDER ALL
CIRCUMSTANCES AND CONDITIONS AND IN ALL CASES. 

SECOND.  UNDER THE ALLEGATIONS OF THE COMPLAINT, THE PRACTICE OF
DELIVERING LIVESTOCK TO THE PUBLIC STOCK YARDS IN CHICAGO, AND THE
PRACTICE OF THE STOCK YARDS COMPANY OF EXACTING A CHARGE FROM
CONSIGNEES, ARE LONGSTANDING CUSTOMS.  SHIPPERS, RAILROADS, THE STOCK
YARD COMPANY, AND THE INTERSTATE COMMERCE COMMISSION ALIKE HAVE LEFT
THESE PRACTICES IN EFFECT OVER A LONG PERIOD OF YEARS.  IF USE OF THE
TERMINAL FACILITIES FOR EGRESS TO THE STREET AFTER UNLOADING OF
LIVESTOCK IS A PART OF TRANSPORTATION, AS PETITIONER ALLEGES, AND IF
THIS USE IS A SERVICE FOR WHICH REASONABLE COMPENSATION IS JUSTIFIED,
IT CANNOT BE DOUBTED THAT THIS CHARGE, LIKE THE UNLOADING CHARGE, IS A
PART OF THAT REASONABLE TRANSPORTATION RATE DETERMINATION OF WHICH IS
COMMITTED TO THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION. 
AND BEFORE SUCH LONG-STANDING TRANSPORTATION CUSTOMS CAN BE HELD
ILLEGAL, IT IS OF COURSE NECESSARY THAT EVIDENCE BE HEARD. 

THIRD.  IF THE RAILROAD DELIVERS THROUGH THE PUBLIC STOCK YARDS, AND
PETITIONER'S POSITION IS SUSTAINED, THE RAILROAD MUST NECESSARILY
ABSORB THE ADDITIONAL CHARGE.  UNDER THE COMPLAINT, THIS WOULD BE UPON
THE BASIS THAT THE RAILROAD HAD NOT FULLY PERFORMED ITS TRANSPORTATION
SERVICE.  YET THE TARIFF CHARGES FOR SHIPPING PETITIONER'S LIVESTOCK
WERE BASED UPON THE LONG-STANDING CUSTOM IN WHICH PETITIONER AND THE
OTHER PACKERS HAD ACQUIESCED.  THE RAILROAD IS ENTITLED TO RECEIVE AND
THE SHIPPER IS REQUIRED UNDER THE STATUTE TO PAY A JUST AND REASONABLE
RATE.  A COURT JUDGMENT IN FAVOR OF PETITIONER WOULD REDUCE THE
COMPENSATION OF THE RAILROADS FOR THE PERFORMANCE OF THEIR SERVICES,
AND WOULD IN EFFECT CONSTITUTE A READJUSTMENT OF THEIR RATE SCHEDULES. 

FOURTH.  IF, AS PETITIONER INSISTS, IT IS THE DUTY OF THE RAILROADS
TO PROVIDE TERMINAL FACILITIES WHICH THEY DO NOT NOW OWN, POSSESS OR
CONTROL, A DRASTIC CHANGE MIGHT HAVE TO BE ACCOMPLISHED BY THEM. 
PROPERTY MIGHT HAVE TO BE ACQUIRED, EXPENSIVE FACILITIES MIGHT HAVE TO
BE SECURED, AND CORRESPONDINGLY, RATES MIGHT HAVE TO BE ADJUSTED.  THE
NEED FOR SUCH STEPS RAISES A TRANSPORTATION PROBLEM OF THE GREATEST
MAGNITUDE, INVOLVING MANY INTRICATE CONSIDERATIONS SUCH AS MUST ALWAYS
PLAY A PART IN EVALUATING A CLAIM THAT NEW DEPOTS AND FACILITIES ARE
NECESSARY. 

FIFTH.  THE COMPLAINT SHOWS THAT THERE IS NO PROVISION IN THE TARIFF
WHICH WOULD AUTHORIZE THE RAILROADS TO MAKE REFUNDS TO PETITIONER OF
THOSE CHARGES PAID BY PETITIONER TO THE STOCK YARDS COMPANY.  SUCH
REFUNDS, IF MADE, WOULD BE IN THE NATURE OF SPECIAL ALLOWANCES NOT
AUTHORIZED BY THE TARIFF.  A COURT'S ADJUDICATION OF THIS QUESTION IN
THIS CASE WOULD NOT UNIFORMLY BENEFIT ALL SHIPPERS FOR WHOM RESPONDENTS
HAVE TRANSPORTED LIVESTOCK.  WHETHER OR NOT SUCH A REFUND WOULD AMOUNT
TO A DISCRIMINATION SHOULD BE DETERMINED BY STUDIES SUCH AS THOSE THE
INTERSTATE COMMERCE COMMISSION IS ESPECIALLY EMPOWERED TO MAKE. 

SIXTH.  THE COMPLAINT ALLEGES THAT PETITIONER IS WILLING TO ACCEPT
DELIVERY AT ANY POINT IN THE STATION AREA.  WHAT THE STATION AREA
EMBRACES IS NOT DEFINED.  WHETHER THERE IS PROPERTY IN THE AREA ON
WHICH THE RAILROADS COULD ERECT PENS IS NOT SHOWN.  TO DECIDE THIS
ISSUE WOULD REQUIRE A COURT TO DEFINE THE BOUNDARIES OF A STATION NAMED
IN A TARIFF APPROVED BY THE INTERSTATE COMMERCE COMMISSION. 

THE COMPLEXITIES OF THE SITUATION HERE PRESENTED ARE GRAPHICALLY
ILLUSTRATED IN THE COMPANION CASE OF SWIFT & CO. V. ALTON R. CO., 238
I.C.C. 179.  SWIFT, ONE OF ARMOUR'S COMPETITORS, TOOK ITS PETITION FOR
ALTERATION OF THE SAME LONG-STANDING PRACTICE DIRECTLY TO THE
COMMISSION.  THAT EXPERT BODY FOUND IT A NECESSARY PREREQUISITE TO
DECISION TO HAVE A TRIAL EXAMINER CONDUCT EXTENSIVE HEARINGS, COMPILING
IN THE PROCESS A RECORD OF 5 VOLUMES, 1147 PAGES, AND NUMEROUS
EXHIBITS.  FN10 

THE PRINCIPLES MAKING UP THE SO-CALLED PRIMARY JURISDICTION DOCTRINE
ARE WELL SETTLED.  THIS IS OBVIOUSLY A CASE FOR THEIR APPLICATION.  THE
DECISION BELOW IS ACCORDINGLY AFFIRMED. 

FN1  SEE ADAMS V. MILLS, 286 U.S. 397; ATCHISON, T. & S.F. RY. CO. V.
UNITED STATES, 295 U.S. 193. 

FN2  111 F.2D 913. 

FN3  27 F.SUPP.  625. 

FN4  THE DISTRICT COURT, IN ADDITION TO RELYING ON THIS GROUND, HELD
THAT THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO JOIN THE STOCK
YARDS COMPANY AS A DEFENDANT, AND FOR FAILURE TO OBTAIN CONSENT OF
COURT TO BRING SUIT AGAINST RAILROADS WHICH WERE IN RECEIVERSHIP.  WE
EXPRESS NO OPINION ON THE CORRECTNESS OF THOSE HOLDINGS. 

FN5  SECTION 9 PROVIDES FOR CONCURRENT JURISDICTION OF THE INTERSTATE
COMMERCE COMMISSION AND THE COURTS "FOR THE RECOVERY OF THE DAMAGES FOR
WHICH SUCH COMMON CARRIER MAY BE LIABLE UNDER THE PROVISIONS OF THIS
CHAPTER.  ...  "  SECTION 22 PROVIDES THAT "NOTHING IN THIS CHAPTER
CONTAINED SHALL IN ANY WAY ABRIDGE OR ALTER THE REMEDIES NOW EXISTING
AT COMMON LAW OR BY STATUTE, BUT THE PROVISIONS OF THIS CHAPTER ARE IN
ADDITION TO SUCH REMEDIES; ...  " 

FN6  CF. TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204 U.S.
426; MITCHELL COAL & COKE CO. V. PENNSYLVANIA R. CO., 230 U.S. 247. 

FN7  SPECIAL STATUTORY PROVISION REQUIRES RAILROADS DELIVERING AT
PUBLIC STOCKYARDS TO UNLOAD THE LIVESTOCK.  "TRANSPORTATION  ...  OF
ORDINARY LIVESTOCK  ...  DESTINED TO OR RECEIVED AT PUBLIC STOCKYARDS
SHALL INCLUDE  ...  DELIVERY  ...  INTO SUITABLE PENS.  ...  "  49
U.S.C. SEC. 15(5).    FN8  PACKERS & STOCKYARDS ACT, 42 STAT. 159, 7
U.S.C. SEC. 181 ET SEQ. BEFORE 1921, THIS CHARGE WAS FIXED BY THE STOCK
YARDS COMPANY ITSELF. 

FN9  CF. TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204 U.S.
426; MITCHELL COAL & COKE CO. V. PENNSYLVANIA R. CO., 230 U.S. 247;
UNITED STATES V. AMERICAN SHEET & TIN PLATE CO., 301 U.S. 402. 
PETITIONER RELIES ON COVINGTON STOCK-YARDS CO. V. KEITH, 139 U.S. 128. 
BUT THAT CASE, A SUIT ORIGINALLY INSTITUTED BEFORE CONGRESS ADOPTED THE
INTERSTATE COMMERCE ACT, IS NOT DETERMINATIVE OF THE RESPECTIVE
JURISDICTIONS OF THE COURTS AND THE COMMISSION IN THIS CASE. 

FN10  FOR INSTANCES WHERE THIS COURT HAS REFERRED TO THE COMMISSION'S
REPORTS AS INDICATIVE OF THE ADMINISTRATIVE PROBLEMS INVOLVED IN
PARTICULAR CASES, SEE LOOMIS V. LEHIGH VALLEY R. CO., 240 U.S. 43, 50
51; NORTHERN PACIFIC RY. CO. V. SOLUM, 247 U.S. 477, 483. 
..END :













UNITED STATES V. GOLTRA, 312 U.S. 203 


NO. 191.  ARGUED JANUARY 9, 1941.  - DECIDED FEBRUARY 3, 1941.  - 91 CT.
CLS. 42, MODIFIED AND AFFIRMED. 


1.  THE TAKING OF PROPERTY BY A GOVERNMENT OFFICER, CLAIMING TO
REPRESENT THE GOVERNMENT BUT ACTING WITHOUT AUTHORITY AND TORTIOUSLY,
CONFERS NO RIGHT TO SUE THE GOVERNMENT IN THE COURT OF CLAIMS FOR JUST
COMPENSATION UNDER THE FIFTH AMENDMENT.  P. 207. 

2.  WHERE AN ARMY ENGINEER OFFICER RETOOK POSSESSION OF BOATS WHICH
WERE LEASED TO AN INDIVIDUAL AND ASSUMED TO CANCEL THE LEASE, ACTING IN
THE MATTER UNDER AN ORDER FROM THE ACTING SECRETARY OF WAR, BUT WITHOUT
AUTHORITY AND TORTIOUSLY, SUBSEQUENT POSSESSION AND USE OF THE BOATS
AFTER THE LEASE HAD BEEN DULY CANCELLED BY THE CHIEF OF ENGINEERS IN
ACCORDANCE WITH ITS TERMS DID NOT INDICATE A RATIFICATION BY THE UNITED
STATES OF THE UNLAWFUL TAKING.  P. 209. 

3.  AN ACT OF CONGRESS CONFERRING JURISDICTION ON THE COURT OF CLAIMS
TO HEAR AND RENDER JUDGMENT ON A PARTICULAR CLAIM AGAINST THE UNITED
STATES NOTWITHSTANDING LAPSE OF TIME, BAR OF STATUTE OF LIMITATIONS, OR
PREVIOUS COURT DECISIONS (ACT OF APRIL 18, 1934, C. 150, 48 STAT.
1322), HELD AN ACT OF GRACE TO BE STRICTLY CONSTRUED AGAINST THE
CLAIMANT.  P. 210. 

4.  THE ACT OF APRIL 18, 1934, SUPRA, CONFERRING SPECIAL JURISDICTION
ON THE COURT OF CLAIMS TO ADJUDGE CERTAIN CLAIMS FOR "JUST
COMPENSATION," FOR THE TAKING OF CERTAIN VESSELS, ETC., "WHETHER
TORTIOUSLY OR NOT,  ...  BY THE UNITED STATES  ...  FOR THE USE AND
BENEFIT OF THE UNITED STATES," DOES NOT ALLOW INTEREST ON THE
RECOVERY.  PP. 207, 211. 

5.  IN A SUIT BY A LESSEE ON A CLAIM BASED UPON THE RETAKING OF
VESSELS WHICH WERE LEASED TO HIM BY THE GOVERNMENT, THE WEIGHT, IF ANY,
TO BE GIVEN TO EVIDENCE IN PROOF OF DAMAGES, CONSISTING OF AN OFFER TO
RENT THE VESSELS, MADE YEARS AFTER THE SEIZURE, AND THE RENTAL VALUE OF
SIMILAR VESSELS, WAS FOR THE COURT OF CLAIMS TO DETERMINE IN THE LIGHT
OF THE CIRCUMSTANCES OF THE CASE.  P. 211. 

UNITED STATES V. GOLTRA ET AL., EXECUTORS* . 

*TOGETHER WITH NO. 192, GOLTRA ET AL., EXECUTORS, V. UNITED STATES,
ALSO ON APPEAL FROM THE COURT OF CLAIMS. 

APPEAL FROM THE COURT OF CLAIMS. 

CROSS APPEALS FROM A JUDGMENT OF THE COURT OF CLAIMS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE APPEAL BRINGS HERE THE CORRECTNESS OF THE RULING BY THE COURT OF
CLAIMS WHICH ALLOWS INTEREST ON A CLAIM AGAINST THE APPELLANT, THE
UNITED STATES.  THE CROSS APPEAL RAISES AN ISSUE THAT THE COMPENSATION
AWARDED IS INADEQUATE BECAUSE THE COURT FAILED TO CONSIDER CERTAIN
EVIDENCE AS TO THE VALUE FOR LEASE OR USE OF THE PROPERTY INVOLVED. 
FN1  THE JUDGMENT WAS ENTERED UPON A PETITION FILED UNDER AUTHORITY OF
A PRIVATE JURISDICTIONAL ACT, QUOTED IN THE MARGIN.  FN2 

THIS CONTROVERSY HAD ITS INCEPTION ON MARCH 25, 1923.  AT THAT TIME
EDWARD F. GOLTRA WAS THE LESSEE OF FOUR TUG BOATS AND 19 STEEL BARGES
BELONGING TO THE UNITED STATES.  WHILE TIED UP FOR THE WINTER ON THE
MISSISSIPPI AT THE PORT OF ST. LOUIS, THEY WERE REPOSSESSED, BECAUSE OF
AN ALLEGED BREACH OF THE LEASE, BY COLONEL ASHBURN, CHIEF OF THE INLAND
AND COASTWISE WATERWAYS SERVICE, UNDER ORDERS FROM THE ACTING SECRETARY
OF WAR.  APPARENTLY SOME UNLOADING FACILITIES WERE ALSO SEIZED.  IN
SEVERAL COURT PROCEEDINGS TO RECOVER POSSESSION MR. GOLTRA WAS
DEFEATED.  FN3  IT WOULD BE FUTILE TO EXAMINE AS TO WHETHER THESE
ADJUDICATIONS DETERMINED ALL OR ANY CONTROVERSIES BETWEEN THE PARTIES,
SINCE THE JURISDICTIONAL ACT OPENED THE DOORS OF THE COURT,
"NOTWITHSTANDING THE LAPSE OF TIME OR THE BAR OF ANY STATUTE OF
LIMITATIONS OR PREVIOUS COURT DECISIONS."  SUING UNDER THIS SPECIAL
LEGISLATION MR. GOLTRA  FN4  SOUGHT DAMAGES FOR THE WRONGFUL TAKING OF
THE FLEET AND FACILITIES AND RECOVERED $350,000 WITH SIX PER CENT
INTEREST FROM MARCH 25, 1923, TO THE DATE OF PAYMENT.  THE GOVERNMENT
ASSIGNS ERROR ONLY TO THE ALLOWANCE OF INTEREST AND THE EXECUTORS ONLY
TO THE REFUSAL TO CONSIDER CERTAIN PROFFERED EVIDENCE. 

BY A CONTRACT OF 1919, WITH A SUPPLEMENT OF 1921, MR. GOLTRA LEASED
THE FLEET OF RIVER BOATS FOR GOVERNMENTALLY SUPERVISED OPERATION AS
COMMON CARRIERS ON THE MISSISSIPPI AND ITS TRIBUTARIES FROM THE CHIEF
OF ENGINEERS AS LESSOR.  THE LESSOR WAS ACTING FOR THE WAR DEPARTMENT,
THE EXECUTIVE AGENCY IN CHARGE OF THE BOATS.  THE TERM OF THE LEASE WAS
FIVE YEARS FROM THE DELIVERY OF THE FIRST UNIT OF THE FLEET, WHICH
OCCURRED ON JULY 15, 1922.  ALL NET EARNINGS WERE SEQUESTERED DURING
THE TERM FOR APPLICATION UPON THE PURCHASE OF THE FLEET AT COST OR
APPRAISED VALUE AS DETAILED IN THE LEASE, WITH PROVISION FOR SUBSEQUENT
INSTALLMENT PAYMENTS OVER SIXTEEN YEARS.  SECTION 8 PROVIDED FOR
TERMINATION BY THE LESSOR UPON THE LESSEE'S NONCOMPLIANCE "IN HIS
JUDGMENT WITH ANY OF THE TERMS AND CONDITIONS" AND FOR THE RETURN TO
THE LESSOR OF THE PLANT, BARGES, AND TOWBOATS. 

ON MARCH 4, 1921, THE SECRETARY OF WAR CONSENTED, IN ACCORDANCE WITH
THE LEASE, THAT MR. GOLTRA'S TARIFFS SHOULD BE 80 PER CENT OF THE
PREVAILING RAIL TARIFFS.  THIS CONSENT WAS WITHDRAWN IN MAY, 1922,
BEFORE THE DELIVERY OF THE BOATS, AND A CONSENT LIMITED TO SPECIFIC
ARTICLES SUBSTITUTED.  A CONTROL OVER THE AMOUNT OF GRAIN TO BE CARRIED
WAS DELEGATED TO THE FEDERAL MANAGER OF THE MISSISSIPPI-WARRIOR RIVER
SERVICE, A GOVERNMENTAL CORPORATION WHICH OPERATED A COMPETING LINE. 
THE ENTERPRISE GOT UNDER WAY IN THE SUMMER OF 1922 AND WAS IMMEDIATELY
ENTANGLED IN THE ORDINARY VISCISSITUDES OF RIVER TRANSPORTATION.  THE
TOWBOATS HAD MECHANICAL DEFICIENCIES; THE OPEN BARGES WERE NOT SUITABLE
FOR GRAIN OR OTHER PERISHABLES; LOW WATER SERIOUSLY INTERFERED WITH
NAVIGATION.  AFTER A FEW MONTHS TOWING BY ONE TUG, THE FLEET WENT INTO
WINTER QUARTERS LATE IN THE FALL.  BEFORE BUSINESS WAS RESUMED, MR.
GOLTRA WAS NOTIFIED ON MARCH 4, 1923, BY THE SECRETARY OF WAR THAT THE
LEASE WAS TERMINATED AND HE WAS DIRECTED TO TURN OVER THE TOWBOATS,
BARGES AND UNLOADING FACILITIES TO COLONEL ASHBURN.  OBEDIENCE TO THIS
ORDER WAS REFUSED AND ON MARCH 25, 1923, COLONEL ASHBURN, UNDER ORDERS
FROM THE ACTING SECRETARY OF WAR, TOOK POSSESSION OF THE FLEET WITHOUT
THE CONSENT OF MR. GOLTRA OR HIS EMPLOYEES, FOR THE USE AND BENEFIT OF
THE UNITED STATES. 

THE SEIZURE WAS WITHOUT THE KNOWLEDGE OF THE CHIEF OF ENGINEERS, WHO
WAS THE LESSOR EMPOWERED BY ITS TERMS TO TERMINATE THE LEASE, AND THAT
OFFICER HAD NOT REACHED ANY CONCLUSION TO THE EFFECT THAT MR. GOLTRA
HAD IN ANY MANNER FAILED IN HIS OBLIGATIONS UNDER THE CONTRACT. 
SUBSEQUENTLY, IN APRIL, THE CHIEF OF ENGINEERS TERMINATED THE LEASE
PURSUANT TO SEC. 8.  THE ACTION DID NOT REPRESENT HIS JUDGMENT BUT WAS
DONE UNDER DIRECTION OF HIS SUPERIOR, THE SECRETARY OF WAR. 

THE COURT OF CLAIMS FIXED THE DAMAGES AS OF THE TIME OF SEIZURE, WITH
INTEREST TO THE DATE OF PAYMENT "NOT AS INTEREST BUT AS A PART OF JUST
COMPENSATION." 

INTEREST.  BY STATUTE,  FN5  DERIVED FROM THE ACT OF MARCH 3, 1863,
NO INTEREST IS ALLOWED ON ANY CLAIM UP TO THE TIME OF THE RENDITION OF
JUDGMENT BY THE COURT OF CLAIMS.  THIS ACCORDS WITH THE TRADITIONAL
IMMUNITY OF THE GOVERNMENT FROM THE BURDEN OF INTEREST UNLESS IT IS
SPECIFICALLY AGREED UPON BY CONTRACT OR IMPOSED BY LEGISLATION.  FN6
WITHOUT CONTROVERTING THIS GENERAL RULE, THE EXECUTORS FIND AUTHORITY
FOR THE ALLOWANCE OF INTEREST IN THE PROVISION OF THE JURISDICTIONAL
ACT FOR "JUST COMPENSATION  ...  FOR CERTAIN VESSELS AND UNLOADING
APPARATUS TAKEN, WHETHER TORTIOUSLY OR NOT  ...  , FOR THE USE AND
BENEFIT OF THE UNITED STATES."  THEIR ARGUMENT IS THAT THE WORDS "JUST
COMPENSATION" HAVE WITHIN THEMSELVES THE SAME LEGAL SIGNIFICANCE OF
INTEREST ON THE AWARD OR DAMAGES FROM THE DATE OF THE TAKING AS HAS
BEEN GIVEN TO THESE SAME WORDS IN THE FIFTH AMENDMENT.  THEY FURTHER
URGE THAT THIS INTERPRETATION IS REQUIRED BY THE PHRASE IN THE ACT "FOR
THE USE AND BENEFIT OF THE UNITED STATES" AND THE ACCEPTED FINDING THAT
COLONEL ASHBURN'S TAKING WAS FOR THAT PURPOSE.  IN SUPPORT OF THIS
POSITION, THE RULING OF THIS COURT IN SEABOARD AIR LINE RY. CO. V.
UNITED STATES  FN7  AND SUBSEQUENT SIMILAR AUTHORITY  FN8  IS RELIED
UPON. 

IN THE SEABOARD CASE, SEC. 10 OF THE LEVER ACT AUTHORIZING THE TAKING
BY EMINENT DOMAIN OF PROPERTY FOR THE PUBLIC USE ON PAYMENT OF JUST
COMPENSATION WAS UNDER EXAMINATION.  IT CONTAINS NO SPECIFIC PROVISION
FOR INTEREST.  THIS COURT HELD THAT A TAKING UNDER THE AUTHORITY OF
SEC. 10 REQUIRED THE JUST COMPENSATION "PROVIDED FOR BY THE
CONSTITUTION" AND THAT SUCH COMPENSATION IS PAYABLE "AS OF THE TIME
WHEN THE OWNERS WERE DEPRIVED OF THEIR PROPERTY."  FN9  THIS CASE,
HOWEVER, AND THE OTHERS CITED IN THE PRECEDING PARAGRAPH, INVOLVE THE
REQUISITIONING OR TAKING OF PROPERTY BY EMINENT DOMAIN UNDER AUTHORITY
OF LEGISLATION.  THE DISTINCTION BETWEEN PROPERTY TAKEN UNDER
AUTHORIZATION OF CONGRESS AND PROPERTY APPROPRIATED WITHOUT SUCH
AUTHORITY HAS LONG BEEN RECOGNIZED N10.  ACTS OF GOVERNMENT OFFICIALS
IN TAKING PROPERTY WITHOUT AUTHORIZATION OF CONGRESS CONFER NO RIGHT OF
RECOVERY UPON THE INJURED CITIZEN.  FN11  THERE ARE TWO INSTANCES OF
CONGRESSIONAL RATIFICATION OF TAKINGS WHICH TURNED TORTIOUS ACTS INTO
THE EXERCISE OF THE POWER OF EMINENT DOMAIN AND PLACED UPON THE
GOVERNMENT THE DUTY TO MAKE "JUST COMPENSATION," INCLUDING SUMS IN THE
NATURE OF INTEREST.  THESE ARE UNITED STATES V. CREEK NATION  FN12  AND
SHOSHONE TRIBE V. UNITED STATES.  FN13  IN BOTH CASES THERE WAS A
SPECIAL JURISDICTIONAL ACT.  IN NEITHER CASE WAS INTEREST EXPRESSLY
ALLOWED.  IN BOTH THIS COURT FOUND CONGRESSIONAL CONFIRMATION OF THE
PREVIOUSLY UNAUTHORIZED ACTS; IN THE CREEK CASE, BY DISPOSITION OF THE
WRONGFULLY ACQUIRED LANDS AND FAILURE TO SEEK CANCELLATION OF THE
DISPOSALS AFTER "FULL KNOWLEDGE OF THE FACTS"  FN14  AND IN THE
SHOSHONE CASE BY "THE STATUTES ALREADY SUMMARIZED, RECOGNIZING THE
ARAPAHOES EQUALLY WITH THE SHOSHONES AS OCCUPANTS OF THE LAND,
ACCEPTING THEIR DEEDS OF CESSION, ASSIGNING TO THE TRIBES EQUALLY THE
PRIVILEGE OF NEW ALLOTMENTS, AND DEVOTING TO THE TWO EQUALLY THE AWARD
OF FUTURE BENEFITS."  FN15 

IN THE CASE NOW BEFORE US, HOWEVER, THERE IS NEITHER THE REQUISITE
CONGRESSIONAL AUTHORITY BEFORE THE TAKING NOR ANY RATIFICATION OR
CONFIRMATION OF THE TORT AFTER THE TAKING, WHICH WOULD JUSTIFY A
CONCLUSION THAT THE FLEET WAS ACQUIRED BY EMINENT DOMAIN.  THE
JURISDICTIONAL ACT IN ITSELF IS NOT AN EXERCISE OF THE POWER OF EMINENT
DOMAIN.  FN16  AS THE LEASE REQUIRED ACTION BY THE CHIEF OF ENGINEERS,
THE ATTEMPT TO CANCEL IT BY THE LETTER OF THE SECRETARY OF WAR OF MARCH
3, 1923, AND THE ORDER OF THE ACTING SECRETARY OF MARCH 22, 1923, TO
TAKE POSSESSION WAS UNAUTHORIZED.  THE LOWER COURT FOUND THE TAKING
TORTIOUS.  FN17  NOR CAN IT BE SAID THAT THE CONTINUED POSSESSION AND
USE BY THE UNITED STATES INDICATED ANY CONFIRMATION OR RATIFICATION OF
THE TORTIOUS ACT, SO AS TO BRING THIS CASE WITHIN THE RULE OF THE CREEK
OR SHOSHONE CASES.  A READING OF THE REPORTS OF THE PRIOR LITIGATION
FN18  MAKES ABUNDANTLY CLEAR THAT THE UNITED STATES RELIED UPON THE
TERMINATION OF THE LEASE BY THE CHIEF OF ENGINEERS WHICH WAS
PRACTICALLY CONTEMPORANEOUS WITH, THOUGH SUBSEQUENT TO, THE TAKING, AS
THEIR JUSTIFICATION FOR POSSESSION OF THE FLEET AND PROPERTY.  THIS
RELIANCE FOUND COMPLETE SUPPORT IN THE VARIOUS CITED DECISIONS OF THE
COURTS, EVEN THOUGH MR. GOLTRA'S PETITION FOR REHEARING IN THIS COURT
POINTED OUT THAT THE LETTER OF THE CHIEF OF ENGINEERS WAS WRITTEN TO
JUSTIFY THE SEIZURE.  FN19  NOTWITHSTANDING THESE DEFINITE JUDICIAL
DECISIONS UPON THE RIGHTS OF THE PARTIES, CONGRESS FELT THAT MR. GOLTRA
MAY NOT HAVE HAD FAIR TREATMENT.  IT PASSED THE PRESENT JURISDICTIONAL
ACT AND TO THAT THE EXECUTORS ARE RELEGATED TO FIND AUTHORITY TO ALLOW
INTEREST. 

SUCH ACTS ARE TO BE STRICTLY CONSTRUED.  FN20  IN THE PRECEDING
PARAGRAPHS WE HAVE DEMONSTRATED THAT THIS UNAUTHORIZED TAKING AND
JUDICIALLY APPROVED RETENTION WAS IN NO SENSE AN EXERCISE OF THE POWER
OF EMINENT DOMAIN.  WE SEE NO GROUND TO READ INTO THIS ACT OF GRACE,
WHICH WAS APPARENTLY DRAWN TO RECTIFY WHAT CONGRESS FELT MIGHT BE A
WRONG, AN AUTHORITY TO ALLOW INTEREST AS A PART OF JUST COMPENSATION. 
IF INTEREST WAS TO BE ALLOWED FOR SO LONG A PERIOD UPON AN ORDINARY
CLAIM, AND CONTRARY TO ESTABLISHED GOVERNMENTAL PRACTICE, CONGRESS
WOULD HAVE SO DECLARED.  FN21 

EVIDENCE.  THE MAIN ISSUE RAISED BY THE APPEAL OF MR. GOLTRA'S
EXECUTORS RELATES TO THE EVIDENCE.  IN ITS OPINION THE COURT OF CLAIMS
SAID: 

"IT IS CONTENDED BY THE PLAINTIFF THAT, IN ARRIVING AT JUST
COMPENSATION, AN OFFER TO RENT THE FLEET MADE YEARS AFTER THE FLEET HAD
BEEN SEIZED AND THE RENTAL VALUE OF SIMILAR VESSELS ON THE MISSISSIPPI
RIVER SHOULD BE TAKEN INTO CONSIDERATION.  THESE CONTENTIONS CANNOT BE
SUSTAINED."  91 CT. CLS. 42, 73.  ASSUMING THAT THESE ITEMS OF EVIDENCE
WERE COMPETENT, WE CANNOT SAY THAT THE COURT OF CLAIMS, MAKING A JURY
AWARD, WAS BOUND TO GIVE THEM WEIGHT.  THE ACTUAL DAMAGES SUFFERED BY
MR. GOLTRA WERE HIGHLY SPECULATIVE, ESPECIALLY SINCE THE CONTRACT WAS
SUBJECT TO LAWFUL CANCELLATION WHENEVER THE CHIEF OF ENGINEERS RIGHTLY
OR WRONGLY BUT IN GOOD FAITH DETERMINED THAT MR. GOLTRA WAS VIOLATING
ITS PROVISIONS.  MR. GOLTRA'S OPERATION UNDER THE LEASE HAD BEEN A
LOSING VENTURE.  UNDER THESE CIRCUMSTANCES, THE COURT OF CLAIMS MAY
HAVE BELIEVED THAT AN OFFER TO PURCHASE, MADE IN MAY, 1925, WAS TOO
REMOTE TO INFLUENCE ITS JUDGMENT AND THAT THE RENTAL VALUE OF OTHER
VESSELS ON THE MISSISSIPPI, NOT SUBJECT TO THE SAME RESTRICTIONS AS
THOSE TAKEN BY THE GOVERNMENT, WAS TOO UNRELIABLE TO AFFORD A USEFUL
COMPARISON.  IT WAS FOR THE COURT OF CLAIMS TO DECIDE WHAT WEIGHT SUCH
FACTS DESERVED, AND WE CONSTRUE ITS OPINION ONLY AS HOLDING THAT UNDER
THE CIRCUMSTANCES OF THIS CASE THE EVIDENCE WAS NOT CONSIDERED TO BE OF
ANY ASSISTANCE IN REACHING A CONCLUSION. 

MR. GOLTRA'S EXECUTORS ALSO COMPLAIN OF THE FAILURE OF THE COURT OF
CLAIMS TO MAKE CERTAIN FINDINGS, BUT THERE IS NO INDICATION THAT THE
COURT OF CLAIMS DID NOT CONSIDER THE FACTS WHICH WERE EMBODIED IN THE
PROPOSED FINDINGS. 

THE JUDGMENT IN NO. 191 IS MODIFIED AS INDICATED IN THE OPINION AND,
AS MODIFIED, AFFIRMED; THE JUDGMENT IN NO. 192 IS AFFIRMED.  NO. 191,
MODIFIED AND AFFIRMED.  NO. 192, AFFIRMED. 

FN1  BOTH PARTIES ALSO SOUGHT REVIEW BY PETITION FOR CERTIORARI
BECAUSE OF THIS COURT'S DECISION IN COLGATE V. UNITED STATES, 280 U.S.
43, AND ASSINIBOINE INDIAN TRIBE V. UNITED STATES, 292 U.S. 606.  THE
INCLUSION OF THE PHRASE "AS OF RIGHT" IN THE JURISDICTIONAL ACT
SUFFICIENTLY MAKES CLEAR THE INTENTION OF CONGRESS TO AUTHORIZE EITHER
PARTY TO TAKE A TECHNICAL APPEAL TO THIS COURT.  CF. HOUSE REPORT NO.
828, 73RD CONG., 2ND SESS., P. 3. 

FN2  ACT OF APRIL 18, 1934, 48 STAT. 1322, C. 150: 

"BE IT ENACTED  ...  THAT JURISDICTION IS HEREBY CONFERRED UPON THE
COURT OF CLAIMS OF THE UNITED STATES, WHOSE DUTY IT SHALL BE,
NOTWITHSTANDING THE LAPSE OF TIME OR THE BAR OF ANY STATUTE OF
LIMITATIONS OR PREVIOUS COURT DECISIONS, TO HEAR, CONSIDER, AND RENDER
JUDGMENT ON THE CLAIMS OF EDWARD F. GOLTRA AGAINST THE UNITED STATES
FOR JUST COMPENSATION TO HIM FOR CERTAIN VESSELS AND UNLOADING
APPARATUS TAKEN, WHETHER TORTIOUSLY OR NOT, ON MARCH 25, 1923, BY THE
UNITED STATES UNDER ORDERS OF THE ACTING SECRETARY OF WAR, FOR THE USE
AND BENEFIT OF THE UNITED STATES; AND ANY OTHER LEGAL OR EQUITABLE
CLAIMS ARISING OUT OF THE TRANSACTIONS IN CONNECTION THEREWITH:
PROVIDED, THAT SEPARATE SUITS MAY BE BROUGHT WITH RESPECT TO THE
VESSELS AND THE UNLOADING APPARATUS, BUT NO SUIT SHALL BE BROUGHT AFTER
THE EXPIRATION OF ONE YEAR FROM THE EFFECTIVE DATE OF THIS ACT:
PROVIDED FURTHER, THAT EITHER PARTY MAY APPEAL AS OF RIGHT TO THE
SUPREME COURT OF THE UNITED STATES FROM ANY JUDGMENT IN SAID CASE AT
ANY TIME WITHIN NINETY DAYS AFTER THE RENDITION THEREOF, AND ANY
JUDGMENT RENDERED IN FAVOR OF THE CLAIMANT SHALL BE PAID IN THE SAME
MANNER AS OTHER JUDGMENTS OF SAID COURT OF CLAIMS ARE PAID." 

FN3  WEEKS V. GOLTRA, 7 F.2D 838; EX PARTE UNITED STATES, 263 U.S.
389; GOLTRA V. WEEKS, 271 U.S. 536; GOLTRA V. DAVIS, 29 F.2D 257, CERT.
DENIED, 279 U.S. 843; GOLTRA V. INLAND WATERWAYS CORP., 49 F.2D 497. 

FN4 ON HIS DEATH HIS EXECUTORS WERE SUBSTITUTED. 

FN5  JUDICIAL CODE SEC. 177. 

FN6  1 OP. ATTY. GEN. 268, 550, 554; 3 ID. 635; 4 ID. 14, 136, 286; 7
ID. 523; 9 ID. 449; TILLSON V. UNITED STATES, 100 U.S. 43, 47; ANGARICA
V. BAYARD, 127 U.S. 251, 260; UNITED STATES V. NORTH CAROLINA, 136 U.S.
211, 216; NATIONAL VOLUNTEER HOME V. PARRISH, 229 U.S. 494, 496. 

FN7  261 U.S. 299. 

FN8  PHELPS V. UNITED STATES, 274 U.S. 341; JACOBS V. UNITED STATES,
290 U.S. 13; LIGGETT & MYERS V. UNITED STATES, 274 U.S. 215; BROOKS
SCANLON CORP. V. UNITED STATES, 265 U.S. 106, 123. 

FN9  CF. DANFORTH V. UNITED STATES, 308 U.S. 271, 284-286. 

FN10  SEE UNITED STATES V. NORTH AMERICAN CO., 253 U.S. 330, 333-334,
THE SEABOARD CASE AT PAGES 304 AND 305, THE PHELPS CASE AT PAGES 343
AND 344, AND THE JACOBS CASE AT PAGE 18. 

FN11  HOOE V. UNITED STATES, 218 U.S. 322, 333; UNITED STATES V.
BUFFALO PITTS CO., 234 U.S. 228, 235. 

FN12  295 U.S. 103. 

FN13  299 U.S. 476. 

FN14  295 U.S. AT 110. 

FN15  299 U.S. AT 495. 

FN16  SHOSHONE TRIBE V. UNITED STATES, 299 U.S. 476, 492. 

FN17  HAWKINS V. UNITED STATES, 96 U.S. 689, 697; PLUMLEY V. UNITED
STATES, 226 U.S. 545, 547; YUHASZ V. UNITED STATES, 109 F.2D 547, 468;
BURTON COAL CO. V. UNITED STATES, 60 CT. CLS. 294, 312; LUTZ CO. V.
UNITED STATES, 76 CT. CLS. 405, 415. 

FN18  SEE NOTE 3 SUPRA. 

FN19  BRIEF FILED JULY 16, 1926, PP. 33-34:  "THE OPINION VIOLATES
THE ELEMENTARY COMMON-LAW RULE THAT A TRESPASS CANNOT BE JUSTIFIED BY
AN ACT SUBSEQUENT.  IT APPEARS FROM THE RECORD THAT COUNSEL FOR
DEFENDANT CAUSED THIS LETTER TO BE WRITTEN FOR THE SOLE PURPOSE OF
JUSTIFICATION OF A PRIOR TRESPASS.  IT WAS NOT THE ACT, THEREFORE, OF
MAJOR-GENERAL BEACH FOR THE PURPOSE OF CANCELING THE CONTRACT, BUT THE
ACT OF COUNSEL FOR DEFENDANT TO EXCUSE THE ILLEGAL ACT.  WE QUOTE FROM
THE RECORD:  'MR. HOCKER:  I CAUSED THIS LETTER TO BE EXECUTED AND
DELIVERED TO MR. GOLTRA FOR THE PURPOSE OF MEETING THAT OBJECTION.  THE
COURT:  YOU CAUSED A LETTER TO BE WRITTEN A MONTH AFTER THE SEIZURE TO
JUSTIFY THE SEIZURE AND AN ATTEMPTED CANCELLATION WHICH HAD ALREADY
BEEN HAD?  MR. HOCKER:  YES, I DID.'  CERTAINLY BAD FAITH IS SHOWN
HERE." 

FN20  DUBUQUE & PACIFIC R. CO. V. LITCHFIELD, 23 HOW.  66, 88;
SLIDELL V. GRANDJEAN, 111 U.S. 412, 437-38; COOSAW MINING CO. V. SOUTH
CAROLINA, 144 U.S. 550, 562; BLAIR V. CHICAGO, 201 U.S. 400, 471;
CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11 PET. 420, 544; SEE RUSSELL V.
SEBASTIAN, 233 U.S. 195, 205. 

FN21  CF. TILLSON V. UNITED STATES, 100 U.S. 43, 46; BOSTON SAND CO.
V. UNITED STATES, 278 U.S. 41, 46. 

THE CHIEF JUSTICE AND MR. JUSTICE BLACK TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THESE APPEALS. 
..END :
















HIGGINS V. COMMISSIONER, 312 U.S. 212 


NO. 253.  ARGUED JANUARY 10, 13, 1941.  - DECIDED FEBRUARY 3, 1941.  -
111 F.2D 795, AFFIRMED. 


1.  SALARIES AND OTHER EXPENSES INCIDENT TO THE LOOKING AFTER ONE'S
OWN INVESTMENTS IN BONDS AND STOCKS ARE NOT DEDUCTIBLE UNDER SEC. 23(A)
OF THE REVENUE ACT OF 1932 AS EXPENSES PAID OR INCURRED IN CARRYING ON
A "TRADE OR BUSINESS."  P. 214. 

2.  IN THIS CONNECTION, "CARRYING ON A BUSINESS," HAS NOT BEEN
INTERPRETED BY ANY REGULATION OR BY RULINGS APPROVED BY THE SECRETARY
OF THE TREASURY.  CERTAIN RULINGS OF LESS DIGNITY, FAVORABLE TO THE
TAXPAYER, MADE IN INDIVIDUAL CASES, ARE NOT DETERMINATIVE.  P. 215. 

UNLESS THE ADMINISTRATIVE PRACTICE IS LONG CONTINUED AND
SUBSTANTIALLY UNIFORM IN THE BUREAU AND WITHOUT CHALLENGE BY THE
GOVERNMENT BEFORE THE BOARD OF TAX APPEALS AND IN THE COURTS, IT SHOULD
NOT BE ASSUMED THAT CONGRESSIONAL REENACTMENT OF LANGUAGE SO CONSTRUED
BY RULINGS OF THE BOARD WAS AN ADOPTION OF THE CONSTRUCTION. 

3.  THE PROPOSITION THAT THE MANAGEMENT OF ONE'S OWN SECURITIES MAY
BE A "BUSINESS" WHERE THERE IS SUFFICIENT EXTENT, CONTINUITY, VARIETY
AND REGULARITY, IS SUPPORTED BY NO FIXED ADMINISTRATIVE CONSTRUCTION. 
P. 216. 

4.  FOR THE PURPOSE OF DEDUCTION, THE PART OF THE TAXPAYER'S EXPENSE
ATTRIBUTABLE TO THE MANAGEMENT OF HIS REAL ESTATE BUSINESS MAY BE
SEGREGATED FROM THE PART PAID FOR THE CARE OF HIS BOND AND STOCK
INVESTMENTS.  P. 218. 

HIGGINS V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 626, TO REVIEW THE AFFIRMANCE OF A RULING OF THE
BOARD OF TAX APPEALS, 39 B.T.A. 1005, WHICH SUSTAINED THE
COMMISSIONER'S REFUSAL TO ALLOW CERTAIN DEDUCTIONS IN AN INCOME TAX
RETURN. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER, THE TAXPAYER, WITH EXTENSIVE INVESTMENTS IN REAL ESTATE,
BONDS AND STOCKS, DEVOTED A CONSIDERABLE PORTION OF HIS TIME TO THE
OVERSIGHT OF HIS INTERESTS AND HIRED OTHERS TO ASSIST HIM IN OFFICES
RENTED FOR THAT PURPOSE.  FOR THE TAX YEARS IN QUESTION, 1932 AND 1933,
HE CLAIMED THE SALARIES AND EXPENSES INCIDENT TO LOOKING AFTER HIS
PROPERTIES WERE DEDUCTIBLE UNDER SEC. 23(A) OF THE REVENUE ACT OF
1932.  FN1  THE COMMISSIONER REFUSED THE DEDUCTIONS.  THE APPLICABLE
PHRASES ARE:  "IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS
DEDUCTIONS: (A)  EXPENSES.  - ALL THE ORDINARY AND NECESSARY EXPENSES
PAID OR INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR
BUSINESS  ..."  THERE IS NO DISPUTE OVER WHETHER THE CLAIMED DEDUCTIONS
ARE ORDINARY AND NECESSARY EXPENSES.  AS THE COMMISSIONER ALSO CONCEDED
BEFORE THE BOARD OF TAX APPEALS THAT THE REAL ESTATE ACTIVITIES OF THE
PETITIONER IN RENTING BUILDINGS  FN2  CONSTITUTED A BUSINESS, THE BOARD
ALLOWED SUCH PORTIONS OF THE CLAIMED DEDUCTIONS AS WERE FAIRLY
ALLOCABLE TO THE HANDLING OF THE REAL ESTATE.  THE SAME OFFICES AND
STAFFS HANDLED BOTH REAL ESTATE AND SECURITY MATTERS.  AFTER THIS
ADJUSTMENT THERE REMAINED FOR THE YEAR 1932 OVER TWENTY AND FOR THE
YEAR 1933 OVER SIXTEEN THOUSAND DOLLARS EXPENDED FOR MANAGING THE
STOCKS AND BONDS. 

PETITIONER'S FINANCIAL AFFAIRS WERE CONDUCTED THROUGH HIS NEW YORK
OFFICE PURSUANT TO HIS PERSONAL DETAILED INSTRUCTIONS.  HIS RESIDENCE
WAS IN PARIS, FRANCE, WHERE HE HAD A SECOND OFFICE.  BY CABLE,
TELEPHONE AND MAIL, PETITIONER KEPT A WATCHFUL EYE OVER HIS
SECURITIES.  WHILE HE SOUGHT PERMANENT INVESTMENTS, CHANGES,
REDEMPTIONS, MATURITIES AND ACCUMULATIONS CAUSED LIMITED SHIFTINGS IN
HIS PORTFOLIO.  THESE WERE MADE UNDER HIS OWN ORDERS.  THE OFFICES KEPT
RECORDS, RECEIVED SECURITIES, INTEREST AND DIVIDEND CHECKS, MADE
DEPOSITS, FORWARDED WEEKLY AND ANNUAL REPORTS AND UNDERTOOK GENERALLY
THE CARE OF THE INVESTMENTS AS INSTRUCTED BY THE OWNER.  PURCHASES WERE
MADE BY A FINANCIAL INSTITUTION.  PETITIONER DID NOT PARTICIPATE
DIRECTLY OR INDIRECTLY IN THE MANAGEMENT OF THE CORPORATIONS IN WHICH
HE HELD STOCK OR BONDS.  THE METHOD OF HANDLING HIS AFFAIRS UNDER
EXAMINATION HAD BEEN EMPLOYED BY PETITIONER FOR MORE THAN THIRTY
YEARS.  NO OBJECTION TO THE DEDUCTIONS HAD PREVIOUSLY BEEN MADE BY THE
GOVERNMENT. 

THE BOARD OF TAX APPEALS  FN3  HELD THAT THESE ACTIVITIES DID NOT
CONSTITUTE CARRYING ON A BUSINESS AND THAT THE EXPENSES WERE CAPABLE OF
APPORTIONMENT BETWEEN THE REAL ESTATE AND THE INVESTMENTS.  THE CIRCUIT
COURT OF APPEALS AFFIRMED,  FN4  AND WE GRANTED CERTIORARI BECAUSE OF
CONFLICT.  FN5 

PETITIONER URGES THAT THE "ELEMENTS OF CONTINUITY, CONSTANT
REPETITION, REGULARITY AND EXTENT" DIFFERENTIATE HIS ACTIVITIES FROM
THE OCCASIONAL LIKE ACTIONS OF THE SMALL INVESTOR.  HIS ACTIVITY IS AND
THE OCCASIONAL ACTION IS NOT "CARRYING ON BUSINESS."  ON THE OTHER
HAND, THE RESPONDENT URGES THAT "MERE PERSONAL INVESTMENT ACTIVITIES
NEVER CONSTITUTE CARRYING ON A TRADE OR BUSINESS, NO MATTER HOW MUCH OF
ONE'S TIME OR OF ONE'S EMPLOYEES' TIME THEY MAY OCCUPY." 

SINCE THE FIRST INCOME TAX ACT, THE PROVISIONS AUTHORIZING BUSINESS
DEDUCTIONS HAVE VARIED ONLY SLIGHTLY.  THE REVENUE ACT OF 1913  FN6
ALLOWED AS A DEDUCTION "THE NECESSARY EXPENSES ACTUALLY PAID IN
CARRYING ON ANY BUSINESS."  BY 1918 THE PRESENT FORM WAS FIXED AND HAS
SO CONTINUED.  FN7 NO REGULATION HAS EVER BEEN PROMULGATED WHICH
INTERPRETS THE MEANING OF "CARRYING ON A BUSINESS," NOR ANY RULINGS
APPROVED BY THE SECRETARY OF THE TREASURY, I.E., TREASURY DECISIONS. 
FN8  CERTAIN RULINGS OF LESS DIGNITY, FAVORABLE TO PETITIONER,  FN9
APPEARED IN INDIVIDUAL CASES BUT THEY ARE NOT DETERMINATIVE.  FN10
EVEN ACQUIESCENCE  FN11  IN SOME BOARD RULINGS AFTER DEFEAT DOES NOT
AMOUNT TO SETTLED ADMINISTRATIVE PRACTICE.  FN12  UNLESS THE
ADMINISTRATIVE PRACTICE IS LONG CONTINUED AND SUBSTANTIALLY UNIFORM IN
THE BUREAU AND WITHOUT CHALLENGE BY THE GOVERNMENT IN THE BOARD AND
COURTS, IT SHOULD NOT BE ASSUMED, FROM RULINGS OF THIS CLASS, THAT
CONGRESSIONAL REENACTMENT OF THE LANGUAGE WHICH THEY CONSTRUED WAS AN
ADOPTION OF THEIR INTERPRETATION. 

WHILE THE COMMISSIONER HAS COMBATED VIEWS SIMILAR TO PETITIONER'S IN
THE COURTS, SOMETIMES SUCCESSFULLY  FN13  AND SOMETIMES UNSUCCESSFULLY,
FN14  THE PETITIONER URGES THAT THE BUREAU ACCEPTED FOR YEARS THE
DOCTRINE THAT THE MANAGEMENT OF ONE'S OWN SECURITIES MIGHT BE A
BUSINESS WHERE THERE WAS SUFFICIENT EXTENT, CONTINUITY, VARIETY AND
REGULARITY.  WE FAIL TO FIND SUCH A FIXED ADMINISTRATIVE CONSTRUCTION
IN THE EXAMPLES CITED.  IT IS TRUE THAT THE DECISIONS ARE FREQUENTLY
PUT ON THE GROUND THAT THE TAXPAYER'S ACTIVITIES WERE SPORADIC BUT IT
DOES NOT FOLLOW THAT HAD THOSE ACTIVITIES BEEN CONTINUOUS THE
COMMISSIONER WOULD NOT HAVE USED THE ARGUMENT ADVANCED HERE, I.E., THAT
NO AMOUNT OF PERSONAL INVESTMENT MANAGEMENT WOULD TURN THOSE ACTIVITIES
INTO A BUSINESS.  EVIDENTLY SUCH WAS THE GOVERNMENT'S CONTENTION IN THE
KALES CASE,  FN15  WHERE THE THINGS THE TAXPAYER DID MET PETITIONER'S
TESTS, AND IN FOSS V. COMMISSIONER  FN16  AND WASHBURN V. COMMISSIONER
FN17  WHERE THE OPINIONS TURNED ON THE EXTENT OF THE TAXPAYER'S
PARTICIPATION IN THE MANAGEMENT OF THE CORPORATIONS IN WHICH
INVESTMENTS WERE HELD.  FN18 

PETITIONER RELIES STRONGLY ON THE DEFINITION OF BUSINESS IN FLINT V.
STONE TRACY COMPANY:"  FN19 'BUSINESS' IS A VERY COMPREHENSIVE TERM AND
EMBRACES EVERYTHING ABOUT WHICH A PERSON CAN BE EMPLOYED."  THIS
DEFINITION WAS GIVEN IN CONSIDERING WHETHER CERTAIN CORPORATIONS CAME
UNDER THE CORPORATION TAX LAW WHICH LEVIES A TAX ON CORPORATIONS
ENGAGED IN BUSINESS.  THE IMMEDIATE ISSUE WAS WHETHER CORPORATIONS
ENGAGED PRINCIPALLY IN THE "HOLDING AND MANAGEMENT OF REAL ESTATE"
FN20 WERE SUBJECT TO THE ACT.  A DEFINITION GIVEN FOR SUCH AN ISSUE IS
NOT CONTROLLING IN THIS DISSIMILAR INQUIRY.  FN21 

TO DETERMINE WHETHER THE ACTIVITIES OF A TAXPAYER ARE "CARRYING ON A
BUSINESS" REQUIRES AN EXAMINATION OF THE FACTS IN EACH CASE.  AS THE
CIRCUIT COURT OF APPEALS OBSERVED, ALL EXPENSES OF EVERY BUSINESS
TRANSACTION ARE NOT DEDUCTIBLE.  ONLY THOSE ARE DEDUCTIBLE WHICH RELATE
TO CARRYING ON A BUSINESS.  THE BUREAU OF INTERNAL REVENUE HAS THIS
DUTY OF DETERMINING WHAT IS CARRYING ON A BUSINESS, SUBJECT TO
REEXAMINATION OF THE FACTS BY THE BOARD OF TAX APPEALS  FN22  AND
ULTIMATELY TO REVIEW ON THE LAW BY THE COURTS ON WHICH JURISDICTION IS
CONFERRED.  FN23  THE COMMISSIONER AND THE BOARD APPRAISED THE EVIDENCE
HERE AS INSUFFICIENT TO ESTABLISH PETITIONER'S ACTIVITIES AS THOSE OF
CARRYING ON A BUSINESS.  THE PETITIONER MERELY KEPT RECORDS AND
COLLECTED INTEREST AND DIVIDENDS FROM HIS SECURITIES, THROUGH
MANAGERIAL ATTENTION FOR HIS INVESTMENTS.  NO MATTER HOW LARGE THE
ESTATE OR HOW CONTINUOUS OR EXTENDED THE WORK REQUIRED MAY BE, SUCH
FACTS ARE NOT SUFFICIENT AS A MATTER OF LAW TO PERMIT THE COURTS TO
REVERSE THE DECISION OF THE BOARD.  ITS CONCLUSION IS ADEQUATELY
SUPPORTED BY THIS RECORD, AND RESTS UPON A CONCEPTION OF CARRYING ON
BUSINESS SIMILAR TO THAT EXPRESSED BY THIS COURT FOR AN ANTECEDENT

THE PETITIONER MAKES THE POINT THAT HIS ACTIVITIES IN MANAGING HIS
ESTATE, BOTH REALTY AND PERSONALTY, WERE A UNIFIED BUSINESS.  SINCE IT
WAS ADMITTEDLY A BUSINESS IN SO FAR AS THE REALTY IS CONCERNED, HE
URGES, THERE IS NO STATUTORY AUTHORITY TO SEVER EXPENSES ALLOCABLE TO
THE SECURITIES.  BUT WE SEE NO REASON WHY EXPENSES NOT ATTRIBUTABLE, AS
WE HAVE JUST HELD THESE ARE NOT, TO CARRYING ON BUSINESS CANNOT BE
APPORTIONED.  IT IS NOT UNUSUAL TO ALLOCATE EXPENSES PAID FOR SERVICES
PARTLY PERSONAL AND PARTLY BUSINESS.  FN25  AFFIRMED. 

FN1  47 STAT. 169, C. 209. 

FN2  CF. PINCHOT V. COMMISSIONER, 113 F.2D 718. 

FN3  39 B.T.A. 1005. 

FN4  111 F.2D 795. 

FN5  KALES V. COMMISSIONER, 101 F.2D 35; DUPONT V. DEPUTY, 103 F.2D
257. 

FN6  38 STAT. 167, SEC. II B. 

FN7  40 STAT. 1066, SEC. 214(A)(1). 

FN8  CF. HELVERING V. NEW YORK TRUST CO., 292 U.S. 455, 467-468. 

FN9  O.D. 537, 2 C.B. 175(1920); O.D. 877, 4 C.B. 123(1921); I.T.
2751, XIII-1 C.B. 43(1934).  SEE ALSO 1934 C.C.H. FEDERAL TAX SERVICE,
VOL. 3, P6035, P. 8027. 

FN10  BIDDLE V. COMMISSIONER, 302 U.S. 573, 582.  CF. ESTATE OF
SANFORD V. COMMISSIONER, 308 U.S. 39, 52.  BUT SEE HELVERING V. BLISS,
293 U.S. 144, 151, AND MCFEELY V. COMMISSIONER, 296 U.S. 102, 108. 

FN11  KISSEL V. COMMISSIONER, 15 B.T.A. 1270, ACQUIESCED IN VIII-2
C.B. 28(1929); CROKER V. COMMISSIONER, 27 B.T.A. 588, ACQUIESCED IN XII
1 C.B. 4(1933). 

FN12  HIGGINS V. SMITH, 308 U.S. 473, 478-479. 

FN13  BEDELL V. COMMISSIONER, 30 F.2D 622, 624; MONELL V. HELVERING,
70 F.2D 631; KANE V. COMMISSIONER, 100 F.2D 382. 

FN14  KALES V. COMMISSIONER, 101 F.2D 35; DUPONT V. DEPUTY, 103 F.2D
257, 259, REVERSED ON OTHER GROUNDS, 308 U.S. 488. 

FN15  KALES V. COMMISSIONER, 34 B.T.A. 1046, 101 F.2D 35. 

FN16  75 F.2D 326. 

FN17  51 F.2D 949, 953. 

FN18  CF. ROEBLING V. COMMISSIONER, 37 B.T.A. 82; HEILBRONER V.
COMMISSIONER, 34 B.T.A. 1200. 

FN19  220 U.S. 107, 171. 

FN20  ID. 169. 

FN21  COHENS V. VIRGINIA, 6 WHEAT.  264, 399; PUERTO RICO V. SHELL
CO., 302 U.S. 253, 269. 

FN22  REVENUE ACT OF 1932, 47 STAT. 169, SEC. 272; INTERNAL REVENUE
CODE, SEC. 272. 

FN23  INTERNAL REVENUE CODE, SEC. 1141. 

FN24  VAN WART V. COMMISSIONER, 295 U.S. 112, 115. 

FN25  3 PAUL & MERTENS, LAW OF FEDERAL INCOME TAXATION SEC. 23.65;
CF. NATIONAL OUTDOOR ADVERTISING BUREAU V. HELVERING, 89 F.2D 878,
881. 
..END :


















UNITED STATES V. HUTCHESON, 312 U.S. 219 


NO. 43.  ARGUED DECEMBER 10, 1940.  - DECIDED FEBRUARY 3, 1941.  - 32
F.SUPP.  600, AFFIRMED. 


1.  IN DETERMINING WHETHER TRADE UNION CONDUCT VIOLATES THE SHERMAN
ACT, THAT ACT SHOULD BE READ WITH SEC. 20 OF THE CLAYTON ACT AND WITH
THE NORRIS-LAGUARDIA ACT.  P. 231. 

2.  LABOR UNION ACTIVITIES ENUMERATED IN SEC. 20 OF THE CLAYTON ACT,
WHICH THAT SECTION DECLARES SHALL NOT BE "CONSIDERED OR HELD TO BE
VIOLATIONS OF ANY LAW OF THE UNITED STATES," ARE NOT PUNISHABLE AS
CRIMINAL UNDER THE SHERMAN ACT.  P. 232. 

3.  SECTION 20 OF THE CLAYTON ACT DOES NOT DIFFERENTIATE BETWEEN
TRADE UNION CONDUCT DIRECTED AGAINST AN EMPLOYER BECAUSE OF A
CONTROVERSY ARISING IN THE RELATION BETWEEN EMPLOYER AND EMPLOYEE, AS
SUCH, AND CONDUCT SIMILARLY DIRECTED BUT ARISING FROM A STRUGGLE
BETWEEN TWO UNIONS SEEKING THE FAVOR OF THE SAME EMPLOYER.  P. 232. 

4.  IN A CASE INVOLVING INTERSTATE COMMERCE, UNION CARPENTERS REFUSED
TO WORK FOR A BREWING COMPANY BY WHICH THEY WERE EMPLOYED, OR ON
CONSTRUCTION WORK BEING DONE FOR IT AND FOR ITS ADJOINING TENANT; THEY
ATTEMPTED TO PERSUADE MEMBERS OF OTHER UNIONS SIMILARLY TO REFUSE TO
WORK; THEY PICKETED THE BREWER'S PREMISES, DISPLAYING SIGNS "UNFAIR TO
ORGANIZED LABOR"; AND THEY RECOMMENDED TO THE UNION MEMBERS AND THEIR
FRIENDS NOT TO BUY OR USE THE BREWER'S PRODUCT.  HELD: 

(1)  THAT THESE ACTIONS WERE PROTECTED FROM PROSECUTION UNDER THE
SHERMAN ACT BY SEC. 20 OF THE CLAYTON ACT, CONSTRUED IN THE LIGHT OF
CONGRESS'S DEFINITION OF A "LABOR DISPUTE" IN THE NORRIS-LAGUARDIA
ACT.  P. 233. 

(2)  IN VIEW OF THE BROAD DEFINITION OF "LABOR DISPUTE" IN THE NORRIS
LAGUARDIA ACT, SEC. 20 OF THE CLAYTON ACT GIVES PROTECTION TO THE
CONDUCT IT DESCRIBES ALTHOUGH DIRECTED IN PART AGAINST OUTSIDERS TO THE
LABOR DISPUTE.  DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443, IS
INAPPLICABLE.  P. 234. 

UNITED STATES V. HUTCHESON ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF MISSOURI. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT QUASHING AN
INDICTMENT UNDER THE SHERMAN ACT. 

THE INDICTMENT CHARGES A DIRECT PHYSICAL RESTRAINT OF INTERSTATE
COMMERCE IN GOODS MANUFACTURED AND SOLD BY ANHEUSER-BUSCH, IN GOODS
MANUFACTURED AND SOLD BY THE GAYLORD CONTAINER CORPORATION, IN BUILDING
MATERIALS INTENDED FOR ANHEUSER-BUSCH, BORSARI TANK CORPORATION, L.O.
STOCKER CO., AND GAYLORD CONTAINER CORPORATION, AND IN MATERIALS
PURCHASED BY ANHEUSER-BUSCH FOR THE PRODUCTION OF ITS GOODS.  IT
FURTHER ALLEGES THAT THE DEFENDANTS HAD THE PURPOSE AND INTENT TO
RESTRAIN THIS INTERSTATE COMMERCE.  THESE ALLEGATIONS ARE CLEARLY
SUFFICIENT TO SHOW A DIRECT AND DELIBERATE RESTRAINT OF INTERSTATE
TRADE. 

THE INDICTMENT ALSO CHARGES THE KIND OF RESTRAINT WHICH IS ILLEGAL
UNDER THE SHERMAN ACT.  DISTINGUISHING APEX HOSIERY CO. V. LEADER, 310
U.S. 469.  IN THE FIRST PLACE THERE IS HERE NO MERE LOCAL DISPUTE
BETWEEN AN EMPLOYER AND HIS EMPLOYEES, AND THE ACTS CHARGED ARE NOT
MERELY LOCAL ACTIVITIES CONDUCTED IN A SINGLE FACTORY AND SUBJECT TO
THE SUPERVISION AND CONTROL OF THE LOCAL AUTHORITIES. 

THE INDICTMENT CHARGES RATHER THAT A RESTRAINT OF TRADE HAS BEEN
IMPOSED AS A RESULT OF A JURISDICTIONAL DISPUTE BETWEEN TWO NATIONAL
UNIONS AND THAT THIS DISPUTE HAS RESULTED IN MANY DIFFERENT STRIKES IN
MANY DIFFERENT PLACES WHICH HAVE IMPOSED A DIRECT AND UNREASONABLE
BURDEN UPON INTERSTATE TRADE.  IT FURTHER CHARGES THAT THE DEFENDANTS
SOUGHT TO FORCE ANHEUSER-BUSCH TO TAKE THEIR SIDE IN THIS DISPUTE AND,
WHEN ANHEUSER-BUSCH REFUSED, THEY ENGAGED IN A DELIBERATE CAMPAIGN ON A
NATIONAL SCALE TO DRIVE ANHEUSER-BUSCH FROM THE INTERSTATE MARKET. 

IN THE SECOND PLACE, THE OBJECTIVE OF THE CONSPIRACY WAS NOT THE
PROTECTION AND ADVANCEMENT OF THE RIGHTS OF LABOR, SUCH AS COLLECTIVE
BARGAINING, WAGES, HOURS, OR WORKING CONDITIONS; IT WAS RATHER TO WIN
BY FORCE A JURISDICTIONAL DISPUTE WITH ANOTHER UNION AND TO DEPRIVE THE
MEMBERS OF THAT OTHER UNION OF WORK.  DEFENDANTS ATTEMPTED TO DESTROY
THE INTERSTATE BUSINESS OF ANHEUSER-BUSCH, AND TO RESTRAIN THE
INTERSTATE TRADE OF THE OTHER COMPANIES, BECAUSE THEY HOPED BY THESE
METHODS TO COMPEL ANHEUSER-BUSCH TO SIDE WITH THEM IN THE
JURISDICTIONAL DISPUTE.  THE HOLDING IN THE APEX CASE THAT A UNION MAY
STOP PRODUCTION IN A LOCAL FACTORY IN ORDER TO ACHIEVE UNION
RECOGNITION IS NOT AUTHORITY FOR A SIMILAR HOLDING WHEN THE OBJECTIVE
OF THE UNION IS TO WIN BY FORCE A NATION-WIDE CONTEST, NOT WITH THE
EMPLOYER, BUT WITH ANOTHER UNION. 

IN THE THIRD PLACE, THE OBJECTIVE OF THE UNION WAS SOUGHT TO BE
ACHIEVED NOT, AS IN THE APEX CASE, BY INTERFERING WITH THE BUSINESS OF
THE OTHER PARTY TO THE DISPUTE, BUT BY STOPPING INTERSTATE TRADE TO OR
BY FOUR COMPANIES, WITH ONLY ONE OF WHICH IT HAD ANY RELATION AND
AGAINST NONE OF WHICH IT HAD ANY REAL GRIEVANCE.  THE PURPOSE OF THE
DEFENDANTS IN RESTRAINING THE INTERSTATE COMMERCE OF ANHEUSER-BUSCH WAS
TO COMPEL IT TO BECOME A PARTISAN IN THE FIGHT BETWEEN THE BROTHERHOOD
OF CARPENTERS AND THE MACHINISTS' UNION.  THE PURPOSE OF THE DEFENDANTS
IN RESTRAINING THE INTERSTATE COMMERCE OF THE OTHER COMPANIES WAS TO
COMPEL THEM TO PUT PRESSURE ON ANHEUSER-BUSCH TO BECOME A PARTISAN IN
THE JURISDICTIONAL DISPUTE.  THIS ASPECT OF THE DEFENDANTS' ACTIVITIES
INDICATES AN INTENT TO INTERFERE WITH INTERSTATE COMMERCE ON A FAR
BROADER SCALE THAN THE CLOSING OF ONE LOCAL PLANT; IT RAISES A QUESTION
QUITE DISTINCT FROM THAT IN THE APEX CASE. 

THE OPINION IN THAT CASE RECOGNIZES THAT THE TYPE OF RESTRAINT
CHARGED TO THE DEFENDANTS IN THIS CASE, BECAUSE IT ACTUALLY AND
POTENTIALLY INTERFERES WITH COMPETITORS IN EVERY DIRECTION, IS WITHIN
THE PROHIBITIONS OF THE SHERMAN ACT.  THE TEST LAID DOWN IN THAT CASE
IS WHETHER THE RESTRAINT IS "UPON COMMERCIAL COMPETITION IN THE
MARKETING OF GOODS OR SERVICES."  THE MERE CLOSING OF A FACTORY IS NOT
ENOUGH TO BRING THE CASE WITHIN THAT TEST.  BUT IF, AS IN THIS CASE,
THE RESTRAINTS GO BEYOND THAT AND ARE DIRECTED TOWARD DRIVING AN
EMPLOYER, AGAINST WHOM THE UNION HAS NO REAL GRIEVANCE, FROM THE
INTERSTATE MARKET AND ARE CALCULATED TO INTERFERE WITH THE INTERSTATE
COMMERCE OF PERSONS DEALING WITH THE EMPLOYER, THE APPLICATION OF THE
SHERMAN ACT IS CLEAR. 

IN LOEWE V. LAWLOR, 208 U.S. 274, DUPLEX PRINTING PRESS CO. V.
DEERING, 254 U.S. 443, AND BEDFORD CUT STONE CO. V. JOURNEYMEN STONE
CUTTERS' ASSN., 274 U.S. 37, THIS COURT HELD THAT ACTIVITIES SIMILAR IN
ALL IMPORTANT RESPECTS TO THE ACTIVITIES OF THE DEFENDANTS HERE
RESTRAINED COMMERCE WITHIN THE MEANING OF THE SHERMAN ACT. 

THE EXCLUSION OF A TRADER FROM THE MARKET, OR THE ERECTION OF
ARBITRARY BARRIERS TO FREE ACCESS TO THE MARKET, HAS LONG BEEN
RECOGNIZED BOTH UNDER THE SHERMAN ACT AND THE COMMON LAW AS A RESTRAINT
OF TRADE.  SEE DARCY V. ALLEIN, 11 COKE 84B; THE CASE OF THE TAILORS OF
IPSWICH, 11 COKE 53A; COLGATE V. BACHELER, CRO.  ELIZA.  872; MITCHEL
V. REYNOLDS, 1 P. WMS.  181; ANON., MOORE (K.B.)  115, 72 ENG. REPR. 
477; ANON., 2 LEO.  210, 74 ENG. REPR.  485; ALGER V. THACHER, 19
PICK.  51; UNITED STATES V. ADDYSTON PIPE & STEEL CO., 85 F. 271, 279;
PRATT V. BRITISH MEDICAL ASSN., 1 K.B. 244; UNITED STATES V. AMERICAN
MEDICAL ASSN., 110 F.2D 703.  THIS COURT HAS IN A NUMBER OF CASES
STRUCK DOWN RESTRAINTS, NOT BECAUSE OF THEIR EFFECT UPON PRICES OR
PRODUCTION, BUT BECAUSE THEY OPERATED TO DESTROY FREE ACCESS TO THE
MARKET.  PARAMOUNT FAMOUS CORP. V. UNITED STATES, 282 U.S. 30; UNITED
STATES V. FIRST NATIONAL PICTURES, INC., 282 U.S. 44; EASTERN STATES
LUMBER ASSN. V. UNITED STATES, 234 U.S. 600. 

THE RESTRAINT CHARGED IN THE INDICTMENT MAY NOT BE JUSTIFIED UNDER
THE "RULE OF REASON" ENUNCIATED IN STANDARD OIL CO. V. UNITED STATES,
221 U.S. 1. 

THERE IS NO FORM OF LABOR WARFARE SO OPPOSED TO THE PUBLIC INTEREST
AND TO THE INTEREST OF ORGANIZED LABOR ITSELF AS THE JURISDICTIONAL
STRIKE WHICH STOPS THE COMMERCE OF AN EMPLOYER WHO IS TRYING TO BE FAIR
TO ORGANIZED LABOR.  AN EMPLOYER WHO FINDS HIMSELF THE VICTIM OF SUCH A
STRIKE IS POWERLESS.  THERE IS NO CONCESSION HE CAN MAKE WHICH WILL
STOP THE ATTACK ON HIS BUSINESS.  SIMILARLY, THE UNION WHOSE RELATIONS
WITH THE EMPLOYER THE OTHER UNION SEEKS TO DISRUPT CANNOT RELY ON ITS
SATISFACTORY SERVICE OR ITS SUPERIOR CRAFTSMANSHIP TO MAINTAIN ITS
POSITION; IT HAS NO WEAPON, OTHER THAN RUTHLESS ECONOMIC WARFARE, TO
DEFEND ITSELF AGAINST THE AGGRESSIVE TACTICS OF THOSE WHO WOULD DESTROY
IT. 

IF A UNION IS PERMITTED TO EXPAND THROUGH THE MERE BRUTAL USE OF
POWER AGAINST NEUTRAL EMPLOYERS, THERE WILL BE A PREMIUM ON RUTHLESS
AND COERCIVE LEADERSHIP.  IF, AS THIS COURT HAS SAID, THE SHERMAN ACT
IS A CHARTER OF FREEDOM, IT MUST INCLUDE WITHIN ITS PROHIBITIONS THE
DESTRUCTION OF ONE LABOR ORGANIZATION BY ANOTHER THROUGH FORCE AND
COERCION AT THE EXPENSE OF INNOCENT BYSTANDERS AND THE TYING UP OF THE
BUSINESS OF THE PUBLIC AT LARGE. 

THE VIEW THAT THE NORRIS-LAGUARDIA ACT MODIFIED OR AMENDED SEC. 1 OF
THE SHERMAN ACT SO AS TO MAKE LAWFUL THEREUNDER ACTIVITIES WHICH MIGHT
OTHERWISE BE ILLEGAL IS PLAINLY ERRONEOUS.  THAT STATUTE DOES NOTHING
MORE THAN LIMIT THE EQUITY POWERS OF THE FEDERAL COURTS.  ITS PURPOSE
AND SCOPE ARE SHOWN BY ITS FIRST SECTION. 

THE PURPOSE THUS DECLARED IS CARRIED OUT BY THE OTHER PROVISIONS OF
THE ACT WHICH PRESCRIBE TERMS AND CONDITIONS TO BE FOLLOWED BY THE
FEDERAL COURTS IN ISSUING AND ENFORCING INJUNCTIONS IN CASES ARISING
OUT OF LABOR DISPUTES.  NOTHING IN THE ACT PURPORTS TO CHANGE THE
EXISTING SUBSTANTIVE RULES OF CRIMINAL AND CIVIL LAW AS THEY APPLY TO
THE ACTIVITIES OF LABOR ORGANIZATIONS.  THIS CONCLUSION AS TO THE
PURPOSE OF THE ACT IS CONFIRMED BY ITS LEGISLATIVE HISTORY.  THE
REPORTS OF THE CONGRESSIONAL COMMITTEES AND THE DEBATES ON THE FLOOR OF
CONGRESS SHOW THAT THE ACT WAS DIRECTED AT NOTHING MORE THAN THE EQUITY
POWERS OF THE FEDERAL COURTS. 

THE SITUATION AS TO THE CRIMINAL LAW IS TOO PLAIN TO REQUIRE
ELABORATION.  IT MAY BE SUGGESTED THAT BY REASON OF ITS DENIAL OF THE
INJUNCTIVE REMEDY THE LAW CHANGES THE SUBSTANTIVE RIGHTS OF ONE WHO
SEEKS RELIEF IN A COURT OF EQUITY.  ON THE OTHER HAND, THERE IS MUCH TO
BE SAID FOR THE VIEW THAT FOR THE MOST PART THE ACT SIMPLY EMBODIES THE
SOUND VIEW AS TO THE EQUITY PRACTICE PREVAILING BEFORE ITS ENACTMENT. 
THE ONLY SECTION OF THE ACT WHICH MIGHT PROPERLY BE REGARDED AS
IMPAIRING SUBSTANTIVE RIGHTS IS SEC. 3, WHICH OUTLAWS THE SO-CALLED
"YELLOW DOG" CONTRACT.  IT HAS NEVER BEEN SUGGESTED THAT THE NORRIS
LAGUARDIA ACT MODIFIES IN ANY WAY SEC. 7 OF THE SHERMAN ACT, WHICH
CONFERS A CIVIL RIGHT TO TRIPLE DAMAGES. 

IN BOTH THE SENATE AND THE HOUSE THE BILL FINALLY ENACTED WAS
ENTITLED "A BILL TO DEFINE AND LIMIT THE JURISDICTION OF COURTS SITTING
IN EQUITY."  FOR EXPLICIT STATEMENTS AS TO THE PURPOSE OF THE BILL SEE
THE SENATE REPORT AT PAGES 7-8(S. REP. NO. 163, 72D CONG., 1ST SESS.). 
SIMILAR STATEMENTS APPEAR IN THE HOUSE REPORT AT PAGES 2-3(H. REP. NO.
669, 72D CONG., 1ST SESS.).  IF IT WERE NECESSARY TO RESORT TO
STATEMENTS MADE IN THE DEBATES ON THE BILL, ADDITIONAL SUPPORT FOR THIS
CONCLUSION COULD BE SUPPLIED.  SEE 75 CONG. REC. 5467, 5464. 

THE SAME REASONING WHICH SUPPORTS THE CONCLUSION THAT THE NORRIS
LAGUARDIA ACT DOES NOT EXPRESSLY AMEND SEC. 1 OF THE SHERMAN ACT CLOSES
THE DOOR ON ANY POSSIBLE ARGUMENT THAT AN AMENDMENT IS ACCOMPLISHED BY
INFERENCE OR IMPLICATION.  MOREOVER, "IT IS A CARDINAL PRINCIPLE OF
CONSTRUCTION THAT REPEALS BY IMPLICATION ARE NOT FAVORED."  UNITED
STATES V. BORDEN COMPANY, 308 U.S. 188, 198. 

IT IS OBVIOUS THAT THE NORRIS-LAGUARDIA ACT IS A LIMITED STATUTE
PASSED WITH SPECIFIC REFERENCE TO THE EXERCISE OF A PARTICULAR KIND OF
JURISDICTION BY THE FEDERAL COURTS. 

THE CASE IS RULED BY THE APEX DECISION, 310 U.S. 469. 

THE ATTACK UPON THE "JURISDICTIONAL STRIKE" IS WITHOUT ANY SOUND
LEGAL BASIS.  WE ARE NOT HERE CONCERNED WITH SOCIAL AND ECONOMIC
QUESTIONS AND REFORMS WHICH LIE WITHIN THE JURISDICTION OF CONGRESS AND
THE STATE LEGISLATURES. 

IF THE SHERMAN LAW APPLIES EQUALLY TO CAPITAL AND LABOR, HOW CAN NON
COMPETITION BETWEEN INDUSTRIAL CONCERNS BE A CRIME UNDER THAT LAW AND
YET COMPETITION BETWEEN LABOR UNIONS BE ALSO A CRIME? 

THERE ARE MULTITUDINOUS DECISIONS HOLDING THAT A JURISDICTIONAL
STRIKE IS NOT AN OFFENSE, CRIMINAL OR EVEN CIVIL, AGAINST THE SHERMAN
LAW.  THERE IS NO DECISION TO THE CONTRARY.  TERRIO V. S.N. NIELSEN
CONST. CO., 30 F.SUPP.  77; LEVERING & G. CO. V. MORRIN, 289 U.S. 103;
UNITED LEATHER WORKERS V. HERKERT, 265 U.S. 457; SENN V. TILE LAYERS
UNION, 301 U.S. 468; LAUF V. E.G. SHINNER & CO., 303 U.S. 323;
BLANKENSHIP V. KURFMAN, 96 F.2D 450; UNITED CHAIN THEATRES V.
PHILADELPHIA UNION, 50 F.2D 890; ALLEN V. FLOOD, HOUSE OF LORDS 1898;
PICKETT V. WALSH, 192 MASS. 572; KEMP V. DIVISION NO. 241, 255 ILL.
213; EXCHANGE BAKERY & RESTAURANT V. RIFKIN, 245 N.Y. 260; STILLWELL
THEATRE, INC. V. KAPLAN, 259 N.Y. 405; NANN V. RAIMIST, 255 N.Y. 306;
BOSSERT V. DHUY, 221 N.Y. 342; NATIONAL PROTECTIVE ASSN. V. CUMMINGS,
170 N.Y. 315; HORMAN V. UNITED MINE WORKERS, 166 ARK. 255; OVERLAND
PUBLISHING CO. V. UNION LITHOGRAPH CO., 57 CAL. APP. 366; GREENWOOD V.
BUILDING TRADES COUNCIL, 71 CAL. APP. 159; SHAUGHNESSY V. JORDAN, 184
IND. 499; RODDY V. UNITED MINE WORKERS, 41 OKLA. 621. 

SEE REPORT OF THE HOUSE COMMITTEE RECOMMENDING THE CLAYTON ACT, 63RD
CONG., 2D SESS., H.R. 2, PP. 14 ET SEQ. 

THE ASSUMPTION THAT SEC. 6 OF THE CLAYTON ACT IS IRRELEVANT RESTS IN
LARGE PART UPON THE SUBSTITUTION OF "REASONABLE" OR "JUSTIFIED" FOR THE
WORD "LEGITIMATE" IN THE ACT, AND UPON DISREGARDING THAT THE SUPREME
COURT HAS DEFINED THIS WORD "LEGITIMATE" AS MEANING "NORMAL."  DUPLEX
CO. V. DEERING, 254 U.S. 443.  IT ALSO DISREGARDS THAT PORTION OF THE
FOR THE PURPOSES OF MUTUAL HELP." 

SEE THE DISSENTING OPINION OF MR. JUSTICE HOLMES IN THE BEDFORD
COMPANY CASE, 247 U.S. 37, 65. 

ACTS SPECIFIED THEREIN SHALL "BE CONSIDERED OR HELD TO BE VIOLATIONS OF
ANY LAW OF THE UNITED STATES." 

THAT SECTION AND THE SUBSEQUENT NORRIS-LAGUARDIA ACT ARE ALSO FATAL
TO THIS INDICTMENT.  SEE MILK WAGON DRIVERS' UNION V. LAKE VALLEY FARM
PRODUCTS, INC., 311 U.S. 91; DONNELLY GARMENT CO. V. INTERNATIONAL
L.G.W. UNION, 20 F.SUPP.  767; GRACE CO. V. WILLIAMS, 20 F.SUPP.  263. 

THE CLAIM OF APPELLANT THAT THE NORRIS-LAGUARDIA ACT HAS TO DO ONLY
WITH "THE EQUITY POWERS OF THE FEDERAL COURTS" IS CLEARLY ERRONEOUS. 
IT OVERLOOKS THE EXPRESS DECLARATION IN SEC. 2 OF THE "PUBLIC POLICY OF
THE UNITED STATES" ON THE SUBSTANTIVE RIGHTS OF LABOR, AND OVERLOOKS
ALSO THE INHERENT AND IMPLIED DECLARATION OF PUBLIC POLICY CONTAINED IN
THE WHOLE TEXT AND SUBSTANCE OF THE ACT. 

ANOTHER FUNDAMENTAL ERROR WHICH ORGANIZED LABOR MUST AND DOES RESIST
AS FATAL TO ITS VERY EXISTENCE, IS THE CONSTANT EXCLUSION OF THE RIGHT
TO SEEK, GAIN AND PROTECT EMPLOYMENT AND TO STRIKE IN DEFENSE THEREOF,
FROM THE NORMAL AND LEGITIMATE OBJECTS AND OPERATIONS OF A LABOR
UNION.    THE INDICTMENT NOWHERE CHARGES A SECONDARY BOYCOTT.  THE VERY
CONTRARY APPEARS. 

THE UNITED BROTHERHOOD HAD A PERFECT COMMON LAW, STATUTORY AND
CONSTITUTIONAL RIGHT PEACEFULLY TO ENDEAVOR TO PERSUADE ITS MEMBERS AND
FRIENDS OF ORGANIZED LABOR TO REFRAIN FROM PATRONIZING ANHEUSER-BUSCH
BEER, WHICH WAS MERELY ONE OF MANY PRODUCTS MANUFACTURED BY THE
ANHEUSER-BUSCH COMPANY. 

THE ACTS OF THE DEFENDANTS AFFECTING BORSARI TANK CORPORATION AND
L.O. STOCKER COMPANY WERE NOT A CRIME UNDER THE ANTI-TRUST LAWS. 

ASIDE FROM THE OMISSION TO SHOW ANY CRIME AGAINST THE ANTI-TRUST LAW,
THE INDICTMENT FAILS TO SHOW THAT THE BROTHERHOOD WAS MORALLY OR
LEGALLY BOUND TO SUBMIT TO THE UNILATERAL DECISION OF THE ANHEUSER
BUSCH COMPANY AWARDING TO THE MACHINISTS BY CONTRACT THE EXCLUSIVE
RIGHT TO THIS PARTICULAR CLASS OF WORK AT THE VERY TIME WHEN THE
CONSTRUCTION CONTRACT WAS ABOUT TO BE LET. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WHETHER THE USE OF CONVENTIONAL, PEACEFUL ACTIVITIES BY A UNION IN
CONTROVERSY WITH A RIVAL UNION OVER CERTAIN JOBS IS A VIOLATION OF THE
SHERMAN LAW, ACT OF JULY 2, 1890, 26 STAT. 209, AS AMENDED, 15 U.S.C.
SEC. 1, IS THE QUESTION.  IT IS SHARPLY PRESENTED IN THIS CASE BECAUSE
IT ARISES IN A CRIMINAL PROSECUTION.  CONCEDEDLY AN INJUNCTION EITHER
AT THE SUIT OF THE GOVERNMENT OR OF THE EMPLOYER COULD NOT ISSUE. 

SUMMARIZING THE LONG INDICTMENT, THESE ARE THE FACTS.  ANHEUSER
BUSCH, INC., OPERATING A LARGE PLANT IN ST. LOUIS, CONTRACTED WITH
BORSARI TANK CORPORATION FOR THE ERECTION OF AN ADDITIONAL FACILITY. 
THE GAYLORD CONTAINER CORPORATION, A LESSEE OF ADJACENT PROPERTY FROM
ANHEUSER-BUSCH, MADE A SIMILAR CONTRACT FOR A NEW BUILDING WITH THE
STOCKER COMPANY.  ANHEUSER-BUSCH OBTAINED THE MATERIALS FOR ITS BREWING
AND OTHER OPERATIONS AND SOLD ITS FINISHED PRODUCTS LARGELY THROUGH
INTERSTATE SHIPMENTS.  THE GAYLORD CORPORATION WAS EQUALLY DEPENDENT ON
INTERSTATE COMMERCE FOR MARKETING ITS GOODS, AS WERE THE CONSTRUCTION
COMPANIES FOR THEIR BUILDING MATERIALS.  AMONG THE EMPLOYEES OF
ANHEUSER-BUSCH WERE MEMBERS OF THE UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA AND OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS. 
THE CONFLICTING CLAIMS OF THESE TWO ORGANIZATIONS, AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR, IN REGARD TO THE ERECTION AND DISMANTLING
OF MACHINERY HAD LONG BEEN A SOURCE OF CONTROVERSY BETWEEN THEM. 
ANHEUSER-BUSCH HAD HAD AGREEMENTS WITH BOTH ORGANIZATIONS WHEREBY THE
MACHINISTS WERE GIVEN THE DISPUTED JOBS AND THE CARPENTERS AGREED TO
SUBMIT ALL DISPUTES TO ARBITRATION.  BUT IN 1939 THE PRESIDENT OF THE
CARPENTERS, THEIR GENERAL REPRESENTATIVE, AND TWO OFFICIALS OF THE
CARPENTERS' LOCAL ORGANIZATION, THE FOUR MEN UNDER INDICTMENT, STOOD ON
THE CLAIMS OF THE CARPENTERS FOR THE JOBS.  REJECTION BY THE EMPLOYER
OF THE CARPENTERS' DEMAND AND THE REFUSAL OF THE LATTER TO SUBMIT TO
ARBITRATION WERE FOLLOWED BY A STRIKE OF THE CARPENTERS, CALLED BY THE
DEFENDANTS AGAINST ANHEUSER-BUSCH AND THE CONSTRUCTION COMPANIES, A
PICKETING OF ANHEUSER-BUSCH AND ITS TENANT, AND A REQUEST THROUGH
CIRCULAR LETTERS AND THE OFFICIAL PUBLICATION OF THE CARPENTERS THAT
UNION MEMBERS AND THEIR FRIENDS REFRAIN FROM BUYING ANHEUSER-BUSCH
BEER. 

THESE ACTIVITIES ON BEHALF OF THE CARPENTERS FORMED THE CHARGE OF THE
INDICTMENT AS A CRIMINAL COMBINATION AND CONSPIRACY IN VIOLATION OF THE
SHERMAN LAW.  DEMURRERS DENYING THAT WHAT WAS CHARGED CONSTITUTED A
VIOLATION OF THE LAWS OF THE UNITED STATES WERE SUSTAINED, 32 F.SUPP. 
600, AND THE CASE CAME HERE UNDER THE CRIMINAL APPEALS ACT.  ACT OF
MARCH 2, 1907, 34 STAT. 1246, 18 U.S.C. SEC. 682; JUDICIAL CODE SEC.
238, 28 U.S.C. SEC. 345. 

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.  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.  HERE WE MUST CONSIDER
NOT MERELY THE SHERMAN LAW BUT THE RELATED ENACTMENTS WHICH ENTERED
INTO THE DECISION OF THE DISTRICT COURT. 

FOLLOWS:  "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 HEREBY DECLARED TO BE
ILLEGAL."  THE CONTROVERSIES ENGENDERED BY ITS APPLICATION TO TRADE
UNION ACTIVITIES AND THE EFFORTS TO SECURE LEGISLATIVE RELIEF FROM ITS
CONSEQUENCES ARE FAMILIAR HISTORY.  THE CLAYTON ACT OF 1914 WAS THE
RESULT.  ACT OF OCTOBER 15, 1914, 38 STAT. 730.  "THIS STATUTE WAS THE
FRUIT OF UNCEASING AGITATION, WHICH EXTENDED OVER MORE THAN TWENTY
YEARS AND WAS DESIGNED TO EQUALIZE BEFORE THE LAW THE POSITION OF
WORKINGMEN AND EMPLOYER AS INDUSTRIAL COMBATANTS."  DUPLEX CO. V.
DEERING, 254 U.S. 443, 484.  SECTION 20 OF THAT ACT, WHICH IS SET OUT
IN THE MARGIN IN FULL,  FN1  WITHDREW FROM THE GENERAL INTERDICT OF THE
SHERMAN LAW SPECIFICALLY ENUMERATED PRACTICES OF LABOR UNIONS BY
PROHIBITING INJUNCTIONS AGAINST THEM - SINCE THE USE OF THE INJUNCTION
HAD BEEN THE MAJOR SOURCE OF DISSATISFACTION - AND ALSO RELIEVED SUCH
PRACTICES OF ALL ILLEGAL TAINT BY THE CATCH-ALL PROVISION, "NOR SHALL
ANY OF THE ACTS SPECIFIED IN THIS PARAGRAPH BE CONSIDERED OR HELD TO BE
VIOLATIONS OF ANY LAW OF THE UNITED STATES."  THE CLAYTON ACT GAVE RISE
TO NEW LITIGATION AND TO RENEWED CONTROVERSY IN AND OUT OF CONGRESS
REGARDING THE STATUS OF TRADE UNIONS.  BY THE GENERALITY OF ITS TERMS
THE SHERMAN LAW HAD NECESSARILY COMPELLED THE COURTS TO WORK OUT ITS
MEANING FROM CASE TO CASE.  IT WAS WIDELY BELIEVED THAT INTO THE
CLAYTON ACT COURTS READ THE VERY BELIEFS WHICH THAT ACT WAS DESIGNED TO
REMOVE.  SPECIFICALLY THE COURTS RESTRICTED THE SCOPE OF SEC. 20 TO
TRADE UNION ACTIVITIES DIRECTED AGAINST AN EMPLOYER BY HIS OWN
EMPLOYEES.  DUPLEX CO. V. DEERING, SUPRA.  SUCH A VIEW IT WAS URGED,
BOTH BY POWERFUL JUDICIAL DISSENTS AND INFORMED LAY OPINION,
MISCONCEIVED THE AREA OF ECONOMIC CONFLICT THAT HAD BEST BE LEFT TO
ECONOMIC FORCES AND THE PRESSURE OF PUBLIC OPINION AND NOT SUBJECTED TO
THE JUDGMENT OF COURTS.  IBID., P. 485-486.  AGITATION AGAIN LED TO
LEGISLATION AND IN 1932 CONGRESS WROTE THE NORRIS-LAGUARDIA ACT.  ACT
OF MARCH 23, 1932, 47 STAT. 70, 29 U.S.C. SECS. 101-115. 

THE NORRIS-LAGUARDIA ACT REMOVED THE FETTERS UPON TRADE UNION
ACTIVITIES, WHICH ACCORDING TO JUDICIAL CONSTRUCTION SEC. 20 OF THE
CLAYTON ACT HAD LEFT UNTOUCHED, BY STILL FURTHER NARROWING THE
CIRCUMSTANCES UNDER WHICH THE FEDERAL COURTS COULD GRANT INJUNCTIONS IN
LABOR DISPUTES.  MORE ESPECIALLY, THE ACT EXPLICITLY FORMULATED THE
"PUBLIC POLICY OF THE UNITED STATES" IN REGARD TO THE INDUSTRIAL
CONFLICT,  FN2  AND BY ITS LIGHT ESTABLISHED THAT THE ALLOWABLE AREA OF
UNION ACTIVITY WAS NOT TO BE RESTRICTED, AS IT HAD BEEN IN THE DUPLEX
CASE, TO AN IMMEDIATE EMPLOYER-EMPLOYEE RELATION.  THEREFORE, WHETHER
TRADE UNION CONDUCT CONSTITUTES A VIOLATION OF THE SHERMAN LAW IS TO BE
DETERMINED ONLY BY READING THE SHERMAN LAW AND SEC. 20 OF THE CLAYTON
ACT AND THE NORRIS-LAGUARDIA ACT AS A HARMONIZING TEXT OF OUTLAWRY OF
LABOR CONDUCT. 

WERE, THEN, THE ACTS CHARGED AGAINST THE DEFENDANTS PROHIBITED, OR
PERMITTED, BY THESE THREE INTERLACING STATUTES?  IF THE FACTS LAID IN
THE INDICTMENT COME WITHIN THE CONDUCT ENUMERATED IN SEC. 20 OF THE
CLAYTON ACT THEY DO NOT CONSTITUTE A CRIME WITHIN THE GENERAL TERMS OF
THE SHERMAN LAW BECAUSE OF THE EXPLICIT COMMAND OF THAT SECTION THAT
SUCH CONDUCT SHALL NOT BE "CONSIDERED OR HELD TO BE VIOLATIONS OF ANY
LAW OF THE UNITED STATES."  SO LONG AS A UNION ACTS IN ITS SELF
INTEREST AND DOES NOT COMBINE WITH NON-LABOR GROUPS,  FN3  THE LICIT
AND THE ILLICIT UNDER SEC. 20 ARE NOT TO BE DISTINGUISHED BY ANY
JUDGMENT REGARDING THE WISDOM OR UNWISDOM, THE RIGHTNESS OR WRONGNESS,
THE SELFISHNESS OR UNSELFISHNESS OF THE END OF WHICH THE PARTICULAR
UNION ACTIVITIES ARE THE MEANS.  THERE IS NOTHING REMOTELY WITHIN THE
TERMS OF SEC. 20 THAT DIFFERENTIATES BETWEEN TRADE UNION CONDUCT
DIRECTED AGAINST AN EMPLOYER BECAUSE OF A CONTROVERSY ARISING IN THE
RELATION BETWEEN EMPLOYER AND EMPLOYEE, AS SUCH, AND CONDUCT SIMILARLY
DIRECTED BUT ULTIMATELY DUE TO AN INTERNECINE STRUGGLE BETWEEN TWO
UNIONS SEEKING THE FAVOR OF THE SAME EMPLOYER.  SUCH STRIFE BETWEEN
COMPETING UNIONS HAS BEEN AN OBDURATE CONFLICT IN THE EVOLUTION OF SO
CALLED CRAFT UNIONISM AND HAS UNDOUBTEDLY BEEN ONE OF THE POTENT FORCES
IN THE MODERN DEVELOPMENT OF INDUSTRIAL UNIONS.  THESE CONFLICTS HAVE
INTENSIFIED INDUSTRIAL TENSION BUT THERE IS NOT THE SLIGHTEST WARRANT
FOR SAYING THAT CONGRESS HAS MADE SEC. 20 INAPPLICABLE TO TRADE UNION
CONDUCT RESULTING FROM THEM. 

IN SO FAR AS THE CLAYTON ACT IS CONCERNED, WE MUST THEREFORE DISPOSE
OF THIS CASE AS THOUGH WE HAD BEFORE US PRECISELY THE SAME CONDUCT ON
THE PART OF THE DEFENDANTS IN PRESSING CLAIMS AGAINST ANHEUSER-BUSCH
FOR INCREASED WAGES, OR SHORTER HOURS, OR OTHER ELEMENTS OF WHAT ARE
CALLED WORKING CONDITIONS.  THE FACT THAT WHAT WAS DONE WAS DONE IN A
COMPETITION FOR JOBS AGAINST THE MACHINISTS RATHER THAN AGAINST, LET US
SAY, A COMPANY UNION IS A DIFFERENTIATION WHICH CONGRESS HAS NOT PUT
INTO THE FEDERAL LEGISLATION AND WHICH THEREFORE WE CANNOT WRITE INTO
IT. 

IT IS AT ONCE APPARENT THAT THE ACTS WITH WHICH THE DEFENDANTS ARE
CHARGED ARE THE KIND OF ACTS PROTECTED BY SEC. 20 OF THE CLAYTON ACT. 
THE REFUSAL OF THE CARPENTERS TO WORK FOR ANHEUSER-BUSCH OR ON
CONSTRUCTION WORK BEING DONE FOR IT AND ITS ADJOINING TENANT, AND THE
PEACEFUL ATTEMPT TO GET MEMBERS OF OTHER UNIONS SIMILARLY TO REFUSE TO
WORK, ARE PLAINLY WITHIN THE FREE SCOPE ACCORDED TO WORKERS BY SEC. 20
FOR "TERMINATING ANY RELATION OF EMPLOYMENT," OR "CEASING TO PERFORM
ANY WORK OR LABOR," OR "RECOMMENDING, ADVISING, OR PERSUADING OTHERS BY
PEACEFUL MEANS SO TO DO."  THE PICKETING OF ANHEUSER-BUSCH PREMISES
WITH SIGNS TO INDICATE THAT ANHEUSER-BUSCH WAS UNFAIR TO ORGANIZED
LABOR, A FAMILIAR PRACTICE IN THESE SITUATIONS, COMES WITHIN THE
LANGUAGE "ATTENDING AT ANY PLACE WHERE ANY SUCH PERSON OR PERSONS MAY
LAWFULLY BE, FOR THE PURPOSE OF PEACEFULLY OBTAINING OR COMMUNICATING
INFORMATION, OR FROM PEACEFULLY PERSUADING ANY PERSON TO WORK OR TO
ABSTAIN FROM WORKING."  FINALLY, THE RECOMMENDATION TO UNION MEMBERS
AND THEIR FRIENDS NOT TO BUY OR USE THE PRODUCT OF ANHEUSER-BUSCH IS
EXPLICITLY COVERED BY "CEASING TO PATRONIZE ...  ANY PARTY TO SUCH
DISPUTE, OR FROM RECOMMENDING, ADVISING, OR PERSUADING OTHERS BY
PEACEFUL AND LAWFUL MEANS SO TO DO." 

CLEARLY, THEN, THE FACTS HERE CHARGED CONSTITUTE LAWFUL CONDUCT UNDER
THE CLAYTON ACT UNLESS THE DEFENDANTS CANNOT INVOKE THAT ACT BECAUSE
OUTSIDERS TO THE IMMEDIATE DISPUTE ALSO SHARED IN THE CONDUCT.  BUT WE
NEED NOT DETERMINE WHETHER THE CONDUCT IS LEGAL WITHIN THE RESTRICTIONS
WHICH DUPLEX CO. V. DEERING GAVE TO THE IMMUNITIES OF SEC. 20 OF THE
CLAYTON ACT.  CONGRESS IN THE NORRIS-LAGUARDIA ACT HAS EXPRESSED THE
PUBLIC POLICY OF THE UNITED STATES AND DEFINED ITS CONCEPTION OF A
"LABOR DISPUTE" IN TERMS THAT NO LONGER LEAVE ROOM FOR DOUBT.  MILK
WAGON DRIVERS' UNION V. LAKE VALLEY FARM PRODUCTS, 311 U.S. 91.  THIS
WAS DONE, AS WE RECENTLY SAID, IN ORDER TO "OBVIATE THE RESULTS OF THE
JUDICIAL CONSTRUCTION" THERETOFORE GIVEN THE CLAYTON ACT.  NEW NEGRO
ALLIANCE V. SANITARY GROCERY CO., 303 U.S. 552, 562; SEE APEX HOSIERY
CO. V. LEADER, 310 U.S. 469, 507, N. 26.  SUCH A DISPUTE, SEC. 13(C)
PROVIDES, "INCLUDES ANY CONTROVERSY CONCERNING TERMS OR CONDITIONS OF
EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR REPRESENTATION OF PERSONS
IN NEGOTIATING, FIXING, MAINTAINING, CHANGING, OR SEEKING TO ARRANGE
TERMS OR CONDITIONS OF EMPLOYMENT, REGARDLESS OF WHETHER OR NOT THE
DISPUTANTS STAND IN THE PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE." 
FN4  AND UNDER SEC. 13(B) A PERSON IS "PARTICIPATING OR INTERESTED IN A
LABOR DISPUTE" IF HE "IS ENGAGED IN THE SAME INDUSTRY, TRADE, CRAFT, OR
OCCUPATION, IN WHICH SUCH DISPUTE OCCURS, OR HAS A DIRECT OR INDIRECT
INTEREST THEREIN, OR IS A MEMBER, OFFICER, OR AGENT OF ANY ASSOCIATION
COMPOSED IN WHOLE OR IN PART OF EMPLOYERS OR EMPLOYEES ENGAGED IN SUCH
INDUSTRY, TRADE, CRAFT, OR OCCUPATION." 

TO BE SURE, CONGRESS EXPRESSED THIS NATIONAL POLICY AND DETERMINED
THE BOUNDS OF A LABOR DISPUTE IN AN ACT EXPLICITLY DEALING WITH THE
FURTHER WITHDRAWAL OF INJUNCTIONS IN LABOR CONTROVERSIES.  BUT TO
ARGUE, AS IT WAS URGED BEFORE US, THAT THE DUPLEX CASE STILL GOVERNS
FOR PURPOSES OF A CRIMINAL PROSECUTION IS TO SAY THAT THAT WHICH ON THE
EQUITY SIDE OF THE COURT IS ALLOWABLE CONDUCT MAY IN A CRIMINAL
PROCEEDING BECOME THE ROAD TO PRISON.  IT WOULD BE STRANGE INDEED THAT
ALTHOUGH NEITHER THE GOVERNMENT NOR ANHEUSER-BUSCH COULD HAVE SOUGHT AN
INJUNCTION AGAINST THE ACTS HERE CHALLENGED, THE ELABORATE EFFORTS TO
PERMIT SUCH CONDUCT FAILED TO PREVENT CRIMINAL LIABILITY PUNISHABLE
WITH IMPRISONMENT AND HEAVY FINES.  THAT IS NOT THE WAY TO READ THE
WILL OF CONGRESS, PARTICULARLY WHEN EXPRESSED BY A STATUTE WHICH, AS WE
HAVE ALREADY INDICATED, IS PRACTICALLY AND HISTORICALLY ONE OF A SERIES
OF ENACTMENTS TOUCHING ONE OF THE MOST SENSITIVE NATIONAL PROBLEMS. 
SUCH LEGISLATION MUST NOT BE READ IN A SPIRIT OF MUTILATING
NARROWNESS.  ON MATTERS FAR LESS VITAL AND FAR LESS INTERRELATED WE
HAVE HAD OCCASION TO POINT OUT THE IMPORTANCE OF GIVING "HOSPITABLE
SCOPE" TO CONGRESSIONAL PURPOSE EVEN WHEN METICULOUS WORDS ARE
LACKING.  KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP., 306 U.S.
381, 391, AND AUTHORITIES THERE CITED.  THE APPROPRIATE WAY TO READ
LEGISLATION IN A SITUATION LIKE THE ONE BEFORE US, WAS INDICATED BY MR.
JUSTICE HOLMES ON CIRCUIT:  "A STATUTE MAY INDICATE OR REQUIRE AS ITS
JUSTIFICATION A CHANGE IN THE POLICY OF THE LAW, ALTHOUGH IT EXPRESSES
THAT CHANGE ONLY IN THE SPECIFIC CASES MOST LIKELY TO OCCUR IN THE
MIND.  THE LEGISLATURE HAS THE POWER TO DECIDE WHAT THE POLICY OF THE
LAW SHALL BE, AND IF IT HAS INTIMATED ITS WILL, HOWEVER INDIRECTLY,
THAT WILL SHOULD BE RECOGNIZED AND OBEYED.  THE MAJOR PREMISE OF THE
CONCLUSION EXPRESSED IN A STATUTE, THE CHANGE OF POLICY THAT INDUCES
THE ENACTMENT, MAY NOT BE SET OUT IN TERMS, BUT IT IS NOT AN ADEQUATE
DISCHARGE OF DUTY FOR THE COURTS TO SAY:  WE SEE WHAT YOU ARE DRIVING
AT, BUT YOU HAVE NOT SAID IT, AND THEREFORE WE SHALL GO ON AS BEFORE." 
JOHNSON V. UNITED STATES 163 F. 30, 32. 

THE RELATION OF THE NORRIS-LAGUARDIA ACT TO THE CLAYTON ACT IS NOT
THAT OF A TIGHTLY DRAWN AMENDMENT TO A TECHNICALLY PHRASED TAX
PROVISION.  THE UNDERLYING AIM OF THE NORRIS-LAGUARDIA ACT WAS TO
RESTORE THE BROAD PURPOSE WHICH CONGRESS THOUGHT IT HAD FORMULATED IN
THE CLAYTON ACT BUT WHICH WAS FRUSTRATED, SO CONGRESS BELIEVED, BY
UNDULY RESTRICTIVE JUDICIAL CONSTRUCTION.  THIS WAS AUTHORITATIVELY
STATED BY THE HOUSE COMMITTEE ON THE JUDICIARY.  "THE PURPOSE OF THE
BILL IS TO PROTECT THE RIGHTS OF LABOR IN THE SAME MANNER THE CONGRESS
INTENDED WHEN IT ENACTED THE CLAYTON ACT, OCTOBER 15, 1914(38 STAT. L.,
738), WHICH ACT, BY REASON OF ITS CONSTRUCTION AND APPLICATION BY THE
FEDERAL COURTS, IS INEFFECTUAL TO ACCOMPLISH THE CONGRESSIONAL
INTENT."  H. REP. NO. 669, 72D CONGRESS, 1ST SESSION, P. 3.  THE NORRIS
LAGUARDIA ACT WAS A DISAPPROVAL OF DUPLEX PRINTING PRESS CO. V.
DEERING, SUPRA, AND BEDFORD CUT STONE CO. V. JOURNEYMEN STONE CUTTERS'
ASSN., 274 U.S. 37, AS THE AUTHORITATIVE INTERPRETATION OF SEC. 20 OF
THE CLAYTON ACT, FOR CONGRESS NOW PLACED ITS OWN MEANING UPON THAT
THE CLAYTON ACT BY INFUSING INTO IT THE IMMUNIZED TRADE UNION
ACTIVITIES AS REDEFINED BY THE LATER ACT.  IN THIS LIGHT SEC. 20
REMOVES ALL SUCH ALLOWABLE CONDUCT FROM THE TAINT OF BEING A "VIOLATION
OF ANY LAW OF THE UNITED STATES," INCLUDING THE SHERMAN LAW. 

THERE IS NO PROFIT IN DISCUSSING THOSE CASES UNDER THE CLAYTON ACT
WHICH WERE DECIDED BEFORE THE COURTS WERE FURNISHED THE LIGHT SHED BY
THE NORRIS-LAGUARDIA ACT ON THE NATURE OF THE INDUSTRIAL CONFLICT.  AND
SINCE THE FACTS IN THE INDICTMENT ARE MADE LAWFUL BY THE CLAYTON ACT IN
SO FAR AS "ANY LAW OF THE UNITED STATES" IS CONCERNED, IT WOULD BE IDLE
TO CONSIDER THE SHERMAN LAW APART FROM THE CLAYTON ACT AS INTERPRETED
BY CONGRESS.  CF. APEX HOSIERY CO. V. LEADER, 310 U.S. 469.  IT WAS
PRECISELY IN ORDER TO MINIMIZE THE DIFFICULTIES TO WHICH THE GENERAL
LANGUAGE OF THE SHERMAN LAW IN ITS APPLICATION TO WORKERS HAD GIVEN
RISE, THAT CONGRESS CUT THROUGH ALL THE TANGLED VERBALISMS AND
ENUMERATED CONCRETELY THE TYPES OF ACTIVITIES WHICH HAD BECOME FAMILIAR
INCIDENTS OF UNION PROCEDURE.  AFFIRMED. 

FN1  38 STAT. 738, 29 U.S.C. SEC. 52:  "NO RESTRAINING ORDER OR
INJUNCTION SHALL BE GRANTED BY ANY COURT OF THE UNITED STATES, OR A
JUDGE OR THE JUDGES THEREOF, IN ANY CASE BETWEEN AN EMPLOYER AND
EMPLOYEES, OR BETWEEN EMPLOYERS AND EMPLOYEES, OR BETWEEN EMPLOYEES, OR
BETWEEN PERSONS EMPLOYED AND PERSONS SEEKING EMPLOYMENT, INVOLVING, OR
GROWING OUT OF, A DISPUTE CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT,
UNLESS NECESSARY TO PREVENT IRREPARABLE INJURY TO PROPERTY, OR TO A
PROPERTY RIGHT, OF THE PARTY MAKING THE APPLICATION, FOR WHICH INJURY
THERE IS NO ADEQUATE REMEDY AT LAW, AND SUCH PROPERTY OR PROPERTY RIGHT
MUST BE DESCRIBED WITH PARTICULARITY IN THE APPLICATION, WHICH MUST BE
IN WRITING AND SWORN TO BY THE APPLICANT OR BY HIS AGENT OR ATTORNEY. 

"AND NO SUCH RESTRAINING ORDER OR INJUNCTION SHALL PROHIBIT ANY
PERSON OR PERSONS, WHETHER SINGLY OR IN CONCERT, FROM TERMINATING ANY
RELATION OF EMPLOYMENT, OR FROM CEASING TO PERFORM ANY WORK OR LABOR,
OR FROM RECOMMENDING, ADVISING, OR PERSUADING OTHERS BY PEACEFUL MEANS
SO TO DO; OR FROM ATTENDING AT ANY PLACE WHERE ANY SUCH PERSON OR
PERSONS MAY LAWFULLY BE, FOR THE PURPOSE OF PEACEFULLY OBTAINING OR
COMMUNICATING INFORMATION, OR FROM PEACEFULLY PERSUADING ANY PERSON TO
WORK OR TO ABSTAIN FROM WORKING; OR FROM CEASING TO PATRONIZE OR TO
EMPLOY ANY PARTY TO SUCH DISPUTE, OR FROM RECOMMENDING, ADVISING, OR
PERSUADING OTHERS BY PEACEFUL AND LAWFUL MEANS SO TO DO; OR FROM PAYING
OR GIVING TO, OR WITHHOLDING FROM, ANY PERSON ENGAGED IN SUCH DISPUTE,
ANY STRIKE BENEFITS OR OTHER MONEYS OR THINGS OF VALUE; OR FROM
PEACEABLY ASSEMBLING IN A LAWFUL MANNER, AND FOR LAWFUL PURPOSES; OR
FROM DOING ANY ACT OR THING WHICH MIGHT LAWFULLY BE DONE IN THE ABSENCE
OF SUCH DISPUTE BY ANY PARTY THERETO; NOR SHALL ANY OF THE ACTS
SPECIFIED IN THIS PARAGRAPH BE CONSIDERED OR HELD TO BE VIOLATIONS OF
ANY LAW OF THE UNITED STATES." 

FN2  "WHEREAS UNDER PREVAILING ECONOMIC CONDITIONS, DEVELOPED WITH
THE AID OF GOVERNMENTAL AUTHORITY FOR OWNERS OF PROPERTY TO ORGANIZE IN
THE CORPORATE AND OTHER FORMS OF OWNERSHIP ASSOCIATION, THE INDIVIDUAL
UNORGANIZED WORKER IS COMMONLY HELPLESS TO EXERCISE ACTUAL LIBERTY OF
CONTRACT AND TO PROTECT HIS FREEDOM OF LABOR, AND THEREBY TO OBTAIN
ACCEPTABLE TERMS AND CONDITIONS OF EMPLOYMENT, WHEREFORE, THOUGH HE
SHOULD BE FREE TO DECLINE TO ASSOCIATE WITH HIS FELLOWS, IT IS
NECESSARY THAT HE HAVE FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION,
AND DESIGNATION OF REPRESENTATIVES OF HIS OWN CHOOSING, TO NEGOTIATE
THE TERMS AND CONDITIONS OF HIS EMPLOYMENT, AND THAT HE SHALL BE FREE
FROM THE INTERFERENCE, RESTRAINT, OR COERCION OF EMPLOYERS OF LABOR, OR
THEIR AGENTS, IN THE DESIGNATION OF SUCH REPRESENTATIVES OR IN SELF
ORGANIZATION OR IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION." 

FN3  CF. UNITED STATES V. BRIMS, 272 U.S. 549, INVOLVING A CONSPIRACY
OF MILL WORK MANUFACTURERS, BUILDING CONTRACTORS AND UNION CARPENTERS. 

FN4  THREE YEARS LATER, IN THE NATIONAL LABOR RELATIONS ACT, CONGRESS
GAVE SIMILAR BREADTH TO THE DEFINITION OF A LABOR DISPUTE.  ACT OF JULY
3, 1935, 49 STAT. 448, 449, 29 U.S.C. SEC. 152(9). 

MR. JUSTICE MURPHY TOOK NO PART IN THE DISPOSITION OF THIS CASE. 

MR. JUSTICE STONE, CONCURRING. 

AS I THINK IT CLEAR THAT THE INDICTMENT FAILS TO CHARGE AN OFFENSE
UNDER THE SHERMAN ACT, AS IT HAS BEEN INTERPRETED AND APPLIED BY THIS
COURT, I FIND NO OCCASION TO CONSIDER THE IMPACT OF THE NORRIS
LAGUARDIA ACT ON THE DEFINITION OF PARTICIPANTS IN A LABOR DISPUTE IN
THE CLAYTON ACT, AS CONSTRUED BY THIS COURT IN DUPLEX PRINTING PRESS
CO. V. DEERING, 254 U.S. 443 - AN APPLICATION OF THE NORRIS-LAGUARDIA
ACT WHICH IS NOT FREE FROM DOUBT AND WHICH SOME OF MY BRETHREN SHARPLY
CHALLENGE. 

THE INDICTMENT IS FOR A CONSPIRACY TO PROMOTE BY PEACEFUL MEANS A
LOCAL "JURISDICTIONAL" STRIKE IN ST. LOUIS, MISSOURI.  ITS AIM IS TO
DETERMINE WHETHER THE UNITED BROTHERHOOD OF CARPENTERS OR THE
INTERNATIONAL ASSOCIATION OF MACHINISTS, BOTH LABOR ORGANIZATIONS
AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, SHALL BE PERMITTED TO
INSTALL CERTAIN MACHINERY ON THE PREMISES OF ANHEUSER-BUSCH, INC. IN
ST. LOUIS.  IT APPEARS THAT ANHEUSER-BUSCH BREWS BEER AND MANUFACTURES
OTHER PRODUCTS WHICH IT SHIPS TO POINTS OUTSIDE THE STATE.  IT ALSO
USES SUPPLIES AND BUILDING MATERIALS WHICH ARE SHIPPED TO IT FROM
POINTS OUTSIDE THE STATE.  BORSARI TANK CORPORATION IS ABOUT TO
CONSTRUCT FOR ANHEUSER-BUSCH UPON ITS PREMISES A BUILDING FOR ITS USE
IN BREWING BEER.  L.O. STOCKER COMPANY HAS CONTRACTED AND INTENDS TO
CONSTRUCT AN OFFICE BUILDING UPON LAND OF ANHEUSER-BUSCH ADJACENT TO
ITS BREWERY AND LEASED BY IT TO THE GAYLORD CONTAINER CORPORATION, A
MANUFACTURER OF PAPER AND CARDBOARD CONTAINERS WHICH IT SHIPS IN
INTERSTATE COMMERCE.  IT IS ALLEGED THAT BOTH BORSARI AND STOCKER WILL
REQUIRE AND USE IN THE CONSTRUCTION OF THE BUILDINGS, MATERIALS TO BE
SHIPPED FROM POINTS OUTSIDE THE STATE TO THE BUILDING SITES ON OR
ADJACENT TO THE ANHEUSER-BUSCH PREMISES. 

THE INDICTMENT CHARGES THAT PURSUANT TO THE CONSPIRACY TO ENFORCE THE
JURISDICTIONAL DEMANDS APPELLEES, WHO ARE OFFICERS OR REPRESENTATIVES
OF THE BROTHERHOOD, CALLED A STRIKE OF ITS MEMBERS, SOME SEVENTY-EIGHT
IN NUMBER, IN THE EMPLOY OF ANHEUSER-BUSCH, ATTEMPTED TO CALL SYMPATHY
STRIKES BY MEMBERS OF OTHER UNIONS IN ITS EMPLOY AND CAUSED THE
PREMISES OF ANHEUSER-BUSCH AND THE ADJACENT PREMISES LEASED TO GAYLORD
TO BE PICKETED BY PERSONS "BEARING UMBRELLAS AND CHARGING ANHEUSER
BUSCH, INC., TO BE UNFAIR TO ORGANIZED LABOR; WITH THE INTENT TO SHUT
DOWN THE BREWERY AND MANUFACTURING PLANT OF ANHEUSER-BUSCH, INC., TO
HINDER AND PREVENT THE PASSAGE OF PERSONS AND PROPERTY TO AND FROM SAID
PREMISES AND THUS TO RESTRAIN AND STOP THE COMMERCE OF ANHEUSER-BUSCH"
IN THE BEER AND OTHER PRODUCTS MANUFACTURED BY IT, AND IN THE SUPPLIES
AND MATERIALS PROCURED BY IT EXTRASTATE, AND "TO RESTRAIN THE COMMERCE"
OF GAYLORD.  IT IS ALLEGED THAT PURSUANT TO THE CONSPIRACY, DEFENDANTS
"REFUSED TO PERMIT MEMBERS OF THE UNITED BROTHERHOOD  ...  TO BE
EMPLOYED AND PREVENTED SUCH MEMBERS FROM BEING EMPLOYED BY BORSARI  ...
WITH THE INTENT AND EFFECT OF PREVENTING CONSTRUCTION OF THE BUILDING
ABOUT TO BE BUILT BY BORSARI  ...  AND THUS OF RESTRAINING THE COMMERCE
OF ANHEUSER-BUSCH IN BEER  ...  AND ALSO WITH THE KNOWLEDGE AND WILLFUL
DISREGARD OF THE CONSEQUENT RESTRAINT AND STOPPAGE OF COMMERCE IN THE
MATERIALS INTENDED TO BE USED BY BORSARI."  LIKE ALLEGATIONS ARE MADE
WITH RESPECT TO STOCKER WITH THE ADDED CHARGE THAT THE ACTS ALLEGED
WERE WITH INTENT TO PREVENT PERFORMANCE OF STOCKER'S CONTRACT WITH
GAYLORD "WITH WILLFUL DISREGARD OF THE CONSEQUENT RESTRAINT OF THE
COMMERCE OF GAYLORD." 

THERE IS THE FURTHER ALLEGATION THAT PURSUANT TO THE CONSPIRACY
DEFENDANTS AND THEIR CO-CONSPIRATORS HAVE INSTIGATED AND BROUGHT ABOUT
A "BOYCOTT OF BEER BREWED BY ANHEUSER-BUSCH ...  AND OF DEALERS IN SAID
BEER THROUGHOUT THE UNITED STATES," BY DISTRIBUTING TO MEMBERS OF LABOR
ORGANIZATIONS AND TO THE PUBLIC AT LARGE IN MANY STATES AND BY
PUBLISHED NOTICES CIRCULATED INTERSTATE "DENOUNCING ANHEUSER-BUSCH,
INC. AS UNFAIR TO ORGANIZED LABOR AND CALLING UPON ALL UNION MEMBERS
AND FRIENDS OF ORGANIZED LABOR TO REFRAIN FROM PURCHASING AND DRINKING
SAID BEER." 

WE ARE CONCERNED WITH THE ALLEGED ACTIVITIES OF DEFENDANTS, ACTUAL OR
INTENDED, ONLY SO FAR AS THEY HAVE AN EFFECT ON COMMERCE PROHIBITED BY
THE SHERMAN ACT AS IT HAS BEEN AMENDED OR RESTRICTED IN ITS OPERATION
BY THE CLAYTON ACT.  THE LEGALITY OF THE ALLEGED RESTRAINT UNDER THE
SHERMAN ACT IS NOT AFFECTED BY CHARACTERIZING THE STRIKE, AS THIS
INDICTMENT DOES, AS "JURISDICTIONAL" OR AS NOT WITHIN THE "LEGITIMATE
OBJECT OF A LABOR UNION."  THE RESTRAINTS CHARGED ARE OF TWO TYPES: ONE
IS THAT RESULTING TO THE COMMERCE OF ANHEUSER-BUSCH, BORSARI, STOCKER
AND GAYLORD FROM THE PEACEFUL PICKETING OF THE ANHEUSER-BUSCH PREMISES,
A PART OF WHICH IS LEASED TO GAYLORD, AND THE REFUSAL OF THE
BROTHERHOOD TO PERMIT ITS MEMBERS TO WORK, AND ITS PREVENTION OF ITS
MEMBERS FROM WORKING (BY WHAT MEANS OTHER THAN PICKETING DOES NOT
APPEAR) FOR BORSARI AND STOCKER.  THE OTHER IS THAT RESULTING FROM THE
REQUESTS ADDRESSED TO THE PUBLIC TO REFRAIN FROM PURCHASING ANHEUSER
BUSCH BEER. 

IT IS PLAIN THAT THE FIRST TYPE OF RESTRAINT IS ONLY THAT WHICH IS
INCIDENTAL TO THE CONDUCT OF A LOCAL STRIKE AND WHICH RESULTS FROM
CLOSING THE PLANT OF A MANUFACTURER OR BUILDER WHO SHIPS HIS PRODUCT IN
INTERSTATE COMMERCE, OR WHO PROCURES HIS SUPPLIES FROM POINTS OUTSIDE
THE STATE.  SUCH RESTRAINTS, INCIDENT TO SUCH A STRIKE, UPON THE
INTERSTATE TRANSPORTATION OF THE PRODUCTS OR SUPPLIES HAVE BEEN
REPEATEDLY HELD BY THIS COURT, WITHOUT A DISSENTING VOICE, NOT TO BE
WITHIN THE REACH OF THE SHERMAN ANTI-TRUST ACT.  THERE IS HERE NO
ALLEGATION IN THE CASE OF ANY OF THE EMPLOYERS OF ANY INTERFERENCE,
ACTUAL OR INTENDED, BY STRIKERS WITH GOODS MOVING OR ABOUT TO BE
SHIPPED IN INTERSTATE COMMERCE SUCH AS WAS LAST TERM SO SHARPLY
PRESENTED AND HELD NOT TO BE A VIOLATION OF THE SHERMAN ACT IN APEX
HOSIERY CO. V. LEADER, 310 U.S. 469. 

WITH RESPECT TO BORSARI AND STOCKER THE INDICTMENT DOES NO MORE THAN
CHARGE A LOCAL STRIKE TO ENFORCE THE JURISDICTIONAL DEMANDS UPON
ANHEUSER-BUSCH BY THE REFUSAL OF UNION MEMBERS TO WORK IN THE
CONSTRUCTION OF BUILDINGS FOR ANHEUSER-BUSCH OR UPON ITS LAND, THE WORK
UPON WHICH, SO FAR AS APPEARS, HAS NOT EVEN BEGUN.  THE RESTRAINT
ALLEGED IS ONLY THAT RESULTING FROM THE "DISREGARD" BY THE STRIKERS OF
THE STOPPAGE OF THE MOVEMENT INTERSTATE OF THE BUILDING MATERIALS AND
THE MANUFACTURED PRODUCTS OF GAYLORD CONSEQUENT UPON THEIR REFUSAL TO
CONSTRUCT THE BUILDINGS.  PRECISELY AS IN LEVERING & GARRIGUES CO. V.
MORRIN, 289 U.S. 103, WHERE A LOCAL BUILDING STRIKE WITH LIKE
CONSEQUENCES WAS HELD NOT TO VIOLATE THE SHERMAN LAW, THERE IS WANTING
HERE ANY FACT TO SHOW THAT THE CONSPIRACY WAS DIRECTED AT THE USE OF
ANY PARTICULAR BUILDING MATERIAL IN THE STATES OF ORIGIN AND
DESTINATION OR ITS TRANSPORTATION BETWEEN THEM "WITH THE DESIGN OF
NARROWING OR SUPPRESSING THE INTERSTATE MARKET," EACH OF WHICH WERE
THOUGHT TO BE CRUCIAL IN BEDFORD CUT STONE CO. V. STONE CUTTERS' ASSN.,
274 U.S. 37, 46-47.  SEE APEX HOSIERY CO. V. LEADER, SUPRA, 506. 

AS TO THE COMMERCE OF ANHEUSER-BUSCH AND GAYLORD, THE INDICTMENT AT
MOST SHOWS A CONSPIRACY TO PICKET PEACEFULLY THEIR PREMISES AND
PUBLICLY TO CHARGE THE FORMER WITH BEING UNFAIR TO ORGANIZED LABOR, ALL
WITH THE INTENT TO SHUT DOWN THE PLANT OF ANHEUSER-BUSCH AND TO HINDER
AND PREVENT THE PASSAGE OF PERSONS AND PROPERTY TO AND FROM THE
PREMISES AND THUS TO RESTRAIN THE COMMERCE OF ANHEUSER-BUSCH AND
GAYLORD.  THERE IS ALSO THE ALLEGATION ALREADY NOTED THAT THE REFUSAL
TO WORK FOR STOCKER WILL RESTRAIN THE COMMERCE OF GAYLORD, PRESUMABLY
BECAUSE HE WILL MANUFACTURE AND SHIP LESS OF HIS PRODUCT IF THE
PROPOSED BUILDING IS NOT COMPLETED.    IT IS A NOVEL PROPOSITION THAT
ALLEGATIONS OF LOCAL PEACEFUL PICKETING OF A MANUFACTURING PLANT TO
ENFORCE UNION DEMANDS CONCERNING TERMS OF EMPLOYMENT ACCOMPANIED BY
ANNOUNCEMENTS THAT THE EMPLOYER IS UNFAIR TO ORGANIZED LABOR IS A
VIOLATION OF THE SHERMAN ACT WHATEVER EFFECT ON INTERSTATE COMMERCE MAY
BE INTENDED TO FOLLOW FROM THE ACTS DONE.  THEY, LIKE THE ALLEGATIONS
HERE, SHOW ONLY SUCH EFFECT UPON INTERSTATE COMMERCE AS MAY BE INFERRED
FROM THE ACTS ALLEGED AND IN ANY EVENT SUCH RESTRAINT AS THERE MAY BE
IS NOT SHOWN TO BE MORE THAN THAT WHICH IS INCIDENTAL TO EVERY STRIKE
CAUSING A SHUTDOWN OF A MANUFACTURING PLANT WHOSE PRODUCT MOVES IN
INTERSTATE COMMERCE OR STOPPING BUILDING OPERATIONS WHERE THE BUILDER
IS USING MATERIALS SHIPPED TO HIM IN INTERSTATE COMMERCE.  IF THE
COUNTS OF THE INDICTMENT WHICH WE ARE NOW CONSIDERING MAKE OUT AN
OFFENSE, THEN EVERY LOCAL STRIKE AIMED AT CLOSING A SHOP WHOSE PRODUCTS
OR SUPPLIES MOVE IN INTERSTATE COMMERCE IS, WITHOUT MORE, A VIOLATION
OF THE SHERMAN ACT.  THEY PRESENT A WEAKER CASE THAN THOSE UNANIMOUSLY
HELD BY THIS COURT NOT TO INVOLVE VIOLATION OF THE SHERMAN ACT IN
UNITED MINE WORKERS V. CORONADO COAL CO. (FIRST CORONADO CASE), 259
U.S. 344; UNITED LEATHER WORKERS V. HERKERT & MEISEL CO., 265 U.S. 457;
LEVERING & GARRIGUES CO. V. MORRIN, SUPRA, AND SEE CORONADO COAL CO. V.
UNITED MINE WORKERS (SECOND CORONADO CASE), 268 U.S. 295, 310.  IN ANY
CASE THERE IS NO ALLEGATION IN THE INDICTMENT THAT THE RESTRAINT DID OR
COULD OPERATE TO SUPPRESS COMPETITION IN THE MARKET OF ANY PRODUCT AND
SO DISMISSAL OF THESE COUNTS IS REQUIRED BY OUR DECISION IN APEX
HOSIERY CO. V. LEADER, SUPRA. 

THE SECOND AND ONLY OTHER TYPE OF RESTRAINT UPON INTERSTATE COMMERCE
CHARGED IS THE SO-CALLED "BOYCOTT" ALLEGED TO BE BY THE PUBLICATION OF
NOTICES CHARGING ANHEUSER-BUSCH WITH BEING UNFAIR TO LABOR AND
REQUESTING MEMBERS OF THE UNION AND THE PUBLIC NOT TO PURCHASE OR USE
THE ANHEUSER-BUSCH PRODUCT.  WERE IT NECESSARY TO A DECISION I SHOULD
HAVE THOUGHT THAT, SINCE THE STRIKE AGAINST ANHEUSER-BUSCH WAS BY ITS
EMPLOYEES AND THERE IS NO INTIMATION THAT THERE IS ANY STRIKE AGAINST
THE DISTRIBUTORS OF THE BEER, THE STRIKE WAS A LABOR DISPUTE BETWEEN
EMPLOYER AND EMPLOYEES WITHIN THE LABOR PROVISIONS OF THE CLAYTON ACT
AS THEY WERE CONSTRUED IN DUPLEX PRINTING PRESS CO. V. DEERING, SUPRA.
IN THAT CASE SEC. 20 OF THE ACT, AS THE OPINION OF THE COURT POINTS
OUT, MAKES LAWFUL THE ACTION OF ANY PERSON* "CEASING TO PATRONIZE  ...
ANY PARTY TO SUCH DISPUTE" OR "RECOMMENDING, ADVISING, OR PERSUADING
OTHERS BY PEACEFUL AND LAWFUL MEANS SO TO DO." 

*APPELLEES, BEING NATIONAL AND LOCAL OFFICERS OF THE BROTHERHOOD AND
REPRESENTING THE EMPLOYEES IN THE LABOR DISPUTE WITH THEIR EMPLOYER,
ARE "PROXIMATELY AND SUBSTANTIALLY CONCERNED" AS PARTIES TO AN ACTUAL
DISPUTE AND ARE, THEREFORE, ENTITLED TO THE BENEFITS OF THE CLAYTON
ACT.  SEE DUPLEX PRINTING PRESS CO. V. DEERING, SUPRA, 470, 471. 

BE THAT AS IT MAY, IT IS A SUFFICIENT ANSWER TO THE ASSERTED VIOLATION
OF THE SHERMAN ACT BY THE PUBLICATION OF SUCH NOTICES AND REQUESTS, TO
POINT OUT THAT THE STRIKE WAS BY EMPLOYEES OF ANHEUSER-BUSCH; THAT
THERE WAS NO BOYCOTT OF OR STRIKE AGAINST ANY PURCHASER OF ANHEUSER
BUSCH BEER BY ANY CONCERTED ACTION OR REFUSAL TO PATRONIZE HIM BY THE
PURCHASE OF BEER OR OTHER PRODUCTS SUPPLIED BY HIM SUCH AS WAS
CONDEMNED IN LOEWE V. LAWLOR, 208 U.S. 274, 300-307; CF. APEX HOSIERY
CO. V. LEADER, SUPRA, 505; AND FINALLY THAT THE PUBLICATION,
UNACCOMPANIED BY VIOLENCE, OF A NOTICE THAT THE EMPLOYER IS UNFAIR TO
ORGANIZED LABOR AND REQUESTING THE PUBLIC NOT TO PATRONIZE HIM IS AN
EXERCISE OF THE RIGHT OF FREE SPEECH GUARANTEED BY THE FIRST AMENDMENT
WHICH CANNOT BE MADE UNLAWFUL BY ACT OF CONGRESS.  SEE THORNHILL V.
ALABAMA, 310 U.S. 88* . 

*APPELLEES, BEING NATIONAL AND LOCAL OFFICERS OF THE BROTHERHOOD AND
REPRESENTING THE EMPLOYEES IN THE LABOR DISPUTE WITH THEIR EMPLOYER,
ARE "PROXIMATELY AND SUBSTANTIALLY CONCERNED" AS PARTIES TO AN ACTUAL
DISPUTE AND ARE, THEREFORE, ENTITLED TO THE BENEFITS OF THE CLAYTON
ACT.  SEE DUPLEX PRINTING PRESS CO. V. DEERING, SUPRA, 470, 471. 

I CAN ONLY CONCLUDE THAT, UPON PRINCIPLES HITHERTO RECOGNIZED AND
ESTABLISHED BY THE DECISIONS OF THIS COURT, THE INDICTMENT CHARGES NO
VIOLATION OF THE SHERMAN ACT. 

MR. JUSTICE ROBERTS, DISSENTING. 

I AM OF OPINION THAT THE JUDGMENT SHOULD BE REVERSED. 

THE INDICTMENT ADEQUATELY CHARGES A CONSPIRACY TO RESTRAIN TRADE AND
COMMERCE WITH THE SPECIFIC PURPOSE OF PREVENTING ANHEUSER-BUSCH FROM
RECEIVING IN INTERSTATE COMMERCE COMMODITIES AND MATERIALS INTENDED FOR
USE IN ITS PLANT; OF PREVENTING THE BORSARI CORPORATION FROM OBTAINING
MATERIALS IN INTERSTATE COMMERCE FOR USE IN PERFORMING A CONTRACT FOR
ANHEUSER-BUSCH, AND OF PREVENTING THE STOCKER COMPANY FROM RECEIVING
MATERIALS IN LIKE MANNER FOR THE CONSTRUCTION OF A BUILDING FOR THE
GAYLORD CORPORATION.  THE INDICTMENT FURTHER CHARGES THAT THE
CONSPIRACY WAS TO RESTRAIN INTERSTATE COMMERCE FLOWING FROM MISSOURI
INTO OTHER STATES OF PRODUCTS OF ANHEUSER-BUSCH AND GENERALLY TO
RESTRAIN THE INTERSTATE TRADE AND COMMERCE OF THE THREE CORPORATIONS
NAMED.  FN1 

WITHOUT DETAILING THE ALLEGATIONS OF THE INDICTMENT, IT IS SUFFICIENT
TO SAY THAT THEY UNDENIABLY CHARGE A SECONDARY BOYCOTT, AFFECTING
INTERSTATE COMMERCE. 

THIS COURT, AND MANY STATE TRIBUNALS, OVER A LONG PERIOD OF YEARS,
HAVE HELD SUCH A SECONDARY BOYCOTT ILLEGAL.  IN 1908 THIS COURT HELD
SUCH A SECONDARY BOYCOTT, INSTIGATED TO ENFORCE THE DEMANDS OF A LABOR
UNION AGAINST AN EMPLOYER, WAS A VIOLATION OF THE SHERMAN ACT AND COULD
BE RESTRAINED AT THE SUIT OF THE EMPLOYER.  FN2  IT IS MATTER OF
HISTORY THAT LABOR UNIONS INSISTED THEY WERE NOT WITHIN THE PURVIEW OF
THE SHERMAN ACT BUT THIS COURT HELD TO THE CONTRARY.  AS A RESULT OF
CONTINUAL AGITATION THE CLAYTON ACT WAS ADOPTED.  THAT ACT, AS AMENDED,
BECAME EFFECTIVE OCTOBER 15, 1914.  FN3  SUBSEQUENTLY SUITS IN EQUITY
WERE BROUGHT TO RESTRAIN SECONDARY BOYCOTTS SIMILAR TO THOSE INVOLVED
IN EARLIER CASES.  THE CONTENTION WAS MADE THAT THE CLAYTON ACT
EXEMPTED LABOR ORGANIZATIONS FROM SUCH SUITS.  THAT CONTENTION WAS NOT
SUSTAINED.  FN4  UPON THE FULLEST CONSIDERATION, THIS COURT REACHED THE
CONCLUSION THAT THE PROVISIONS OF SEC. 20 OF THE CLAYTON ACT GOVERNED
NOT THE SUBSTANTIVE RIGHTS OF PERSONS AND ORGANIZATIONS BUT MERELY
REGULATED THE PRACTICE ACCORDING TO WHICH, AND THE CONDITIONS UNDER
WHICH, EQUITABLE RELIEF MIGHT BE GRANTED IN SUITS OF THIS CHARACTER. 

THIS COURT ALSO UNANIMOUSLY HELD THAT A CONSPIRACY SUCH AS IS CHARGED
IN THE INSTANT CASE RENDERS THE CONSPIRATORS LIABLE TO CRIMINAL
PROSECUTION BY THE UNITED STATES UNDER THE ANTI-TRUST ACTS.  FN5 

IT IS COMMON KNOWLEDGE THAT THE AGITATION FOR COMPLETE EXEMPTION OF
LABOR UNIONS FROM THE PROVISIONS OF THE ANTI-TRUST LAWS PERSISTED. 
INSTEAD OF GRANTING THE COMPLETE EXEMPTION DESIRED, CONGRESS ADOPTED,
MARCH 23, 1932, THE NORRIS-LAGUARDIA ACT.  FN6  THE TITLE AND THE
CONTENTS OF THAT ACT, AS WELL AS ITS LEGISLATIVE HISTORY,  FN7
DEMONSTRATE BEYOND QUESTION THAT ITS PURPOSE WAS TO DEFINE AND TO LIMIT
THE JURISDICTION OF FEDERAL COURTS SITTING IN EQUITY.  THE ACT BROADENS
THE SCOPE OF LABOR DISPUTES AS THERETOFORE UNDERSTOOD, THAT IS,
DISPUTES BETWEEN AN EMPLOYER AND HIS EMPLOYES WITH RESPECT TO WAGES,
HOURS, AND WORKING CONDITIONS, AND PROVIDES THAT BEFORE A FEDERAL COURT
CAN ENTER AN INJUNCTION TO RESTRAIN ILLEGAL ACTS CERTAIN PRELIMINARY
FINDINGS, BASED ON EVIDENCE, MUST BE MADE.  THE ACT FURTHER DEPRIVES
THE COURTS OF THE RIGHT TO ISSUE AN INJUNCTION AGAINST THE DOING OF
CERTAIN ACTS BY LABOR ORGANIZATIONS OR THEIR MEMBERS.  IT IS
UNNECESSARY TO DETAIL THE ACTS AS TO WHICH THE JURISDICTION OF A COURT
OF EQUITY IS ABOLISHED.  IT IS SUFFICIENT TO SAY, WHAT A READING OF THE
ACT MAKES LETTER CLEAR, THAT THE JURISDICTION OF ACTIONS FOR DAMAGES
AUTHORIZED BY THE SHERMAN ACT, AND OF THE CRIMINAL OFFENSES DENOUNCED
BY THAT ACT, ARE NOT TOUCHED BY THE NORRIS-LAGUARDIA ACT. 

BY A PROCESS OF CONSTRUCTION NEVER, AS I THINK, HERETOFORE INDULGED
BY THIS COURT, IT IS NOW FOUND THAT, BECAUSE CONGRESS FORBADE THE
ISSUING OF INJUNCTIONS TO RESTRAIN CERTAIN CONDUCT, IT INTENDED TO
REPEAL THE PROVISIONS OF THE SHERMAN ACT AUTHORIZING ACTIONS AT LAW AND
CRIMINAL PROSECUTIONS FOR THE COMMISSION OF TORTS AND CRIMES DEFINED BY
THE ANTI-TRUST LAWS.  THE DOCTRINE NOW ANNOUNCED SEEMS TO BE THAT AN
INDICATION OF A CHANGE OF POLICY IN AN ACT AS RESPECTS ONE SPECIFIC
ITEM IN A GENERAL FIELD OF THE LAW, COVERED BY AN EARLIER ACT,
JUSTIFIES THIS COURT IN SPELLING OUT AN IMPLIED REPEAL OF THE WHOLE OF
THE EARLIER STATUTE AS APPLIED TO CONDUCT OF THE SORT HERE INVOLVED.  I
VENTURE TO SAY THAT NO COURT HAS EVER UNDERTAKEN SO RADICALLY TO
LEGISLATE WHERE CONGRESS HAS REFUSED SO TO DO.  FN8 

THE CONSTRUCTION OF THE ACT NOW ADOPTED IS THE MORE CLEARLY
INADMISSIBLE WHEN WE REMEMBER THAT THE SCOPE OF PROPOSED AMENDMENTS AND
REPEALS OF THE ANTI-TRUST LAWS IN RESPECT OF LABOR ORGANIZATIONS HAS
BEEN THE SUBJECT OF CONSTANT CONTROVERSY AND CONSIDERATION IN
CONGRESS.  IN THE LIGHT OF THIS HISTORY, TO ATTRIBUTE TO CONGRESS AN
INTENT TO REPEAL LEGISLATION WHICH HAS HAD A DEFINITE AND WELL
UNDERSTOOD SCOPE AND EFFECT FOR DECADES PAST, BY RESURRECTING A
REJECTED CONSTRUCTION OF THE CLAYTON ACT AND EXTENDING A POLICY
STRICTLY LIMITED BY THE CONGRESS ITSELF IN THE NORRIS-LAGUARDIA ACT,
SEEMS TO ME A USURPATION BY THE COURTS OF THE FUNCTION OF THE CONGRESS
NOT ONLY NOVEL BUT FRAUGHT, AS WELL, WITH THE MOST SERIOUS DANGERS TO
OUR CONSTITUTIONAL SYSTEM OF DIVISION OF POWERS. 

FN1  C.E. STEVENS CO. V. FOSTER & KLEISER CO., 311 U.S. 255. 

FN2  LOEWE V. LAWLOR, 208 U.S. 274. 

FN3  C. 323, 38 STAT. 730. 

FN4  DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443; BEDFORD CUT
STONE CO. V. JOURNEYMEN STONE CUTTERS' ASSN., 274 U.S. 37. 

FN5  UNITED STATES V. BRIMS, 272 U.S. 549. 

FN6  C. 90, 47 STAT. 70; 29 U.S.C. SECS. 101-115. 

FN7  S. REP. NO. 163, 72D CONG., 1ST SESS., PP. 7-8; H. REP. NO. 669,
72D CONG., 1ST SESS., PP. 2-3; 75 CONG. REC. 5464, 5467. 

FN8  THE RULE ALWAYS HERETOFORE FOLLOWED IN RESPECT OF IMPLIED REPEAL
WAS RECENTLY EXPOUNDED IN AN ANALOGOUS SITUATION IN UNITED STATES V.
BORDEN CO., 308 U.S. 188, 198. 

THE CHIEF JUSTICE JOINS IN THIS OPINION. 
..END :




PHILLIPS V. UNITED STATES, 312 U.S. 246 


NO. 201.  ARGUED JANUARY 15, 1941.  - DECIDED FEBRUARY 3, 1941.  -
DECREE VACATED. 


1.  SECTION 266 OF THE JUD.  CODE IS NOT A MEASURE OF BROAD SOCIAL
POLICY TO BE CONSTRUED WITH GREAT LIBERALITY, BUT AN ENACTMENT
TECHNICAL IN THE STRICT SENSE OF THE TERM AND TO BE APPLIED AS SUCH. 
P. 251. 

2.  A SUIT TO ENJOIN THE GOVERNOR OF A STATE FROM EMPLOYING MILITARY
FORCE IN ALLEGED VIOLATION OF PLAINTIFF'S CONSTITUTIONAL RIGHTS, CAN
NOT BE MAINTAINED IN A THREE-JUDGE DISTRICT COURT UNDER JUD.  CODE SEC.
266, OR BE REVIEWED BY DIRECT APPEAL TO THIS COURT UNDER THAT SECTION,
WHERE THE VALIDITY OF NO STATUTE OF THE STATE IS CHALLENGED, BUT MERELY
THE LEGALITY OF THE GOVERNOR'S ACTIONS DONE UNDER COLOR OF GENERAL
PROVISIONS OF THE STATE CONSTITUTION AND LAWS CONFERRING HIS EXECUTIVE
AND MILITARY POWERS.  STERLING V. CONSTANTIN, 287 U.S. 378,
DISTINGUISHED.  P. 253. 

3.  A DECREE OF THE DISTRICT COURT IN A SUIT MISTAKENLY BROUGHT UNDER
JUD.  CODE SEC. 266, IS REVIEWABLE BY THE CIRCUIT COURT OF APPEALS,
THOUGH RENDERED BY THREE JUDGES.  P. 254. 

4.  ON AN APPEAL TO THIS COURT FROM A DECREE OF A THREE-JUDGE
DISTRICT COURT, IN A SUIT ERRONEOUSLY BROUGHT UNDER JUD.  CODE SEC.
266, THIS COURT VACATED THE DECREE AND REMANDED THE CAUSE TO THE
DISTRICT COURT SO THAT IT MIGHT ENTER A FRESH DECREE FROM WHICH A
TIMELY APPEAL COULD BE TAKEN.  P. 254. 

PHILLIPS, GOVERNOR OF OKLAHOMA, ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF OKLAHOMA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES AWARDING
AN INTERLOCUTORY INJUNCTION.  33 F.SUPP.  261. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

AS PART OF A FLOOD CONTROL AND HYDRO-ELECTRIC DEVELOPMENT, THE GRAND
RIVER DAM AUTHORITY, AN AGENCY OF THE STATE OF OKLAHOMA, WAS EMPOWERED
TO CONSTRUCT THE GRAND RIVER DAM, WITH AUTHORITY TO BORROW MONEY AND
ACCEPT GRANTS FROM THE UNITED STATES.  OKLAHOMA LAWS OF 1935, ART. 4,
C. 70.  FOR THE CONSTRUCTION OF THE DAM THE UNITED STATES ALLOTTED
TWENTY MILLION DOLLARS TO THE AUTHORITY.  EIGHT AND ONE-HALF MILLIONS,
IN ROUND NUMBERS, WERE TO BE USED AS A GRANT, AND ELEVEN AND ONE-HALF
FOR THE BONDS OF THE AUTHORITY.  CONSTRUCTION BEGAN IN FEBRUARY, 1938,
AND BY THE SPRING OF LAST YEAR MUCH OF THE WORK WAS NEARING
COMPLETION.  DURING THIS PERIOD, THE GOVERNOR OF OKLAHOMA
UNSUCCESSFULLY PRESSED AGAINST THE AUTHORITY CLAIMS FOR THE FLOODING OF
ROADS WITHIN THE DAM AREA.  THE ACTION WHICH THE GOVERNOR FINALLY TOOK
TO ENFORCE HIS OWN VIEWS IN THIS MATTER IS THE SOURCE OF THE PRESENT
LITIGATION.  ON MARCH 13, 1940, HE DECLARED MARTIAL LAW IN AN AREA
SURROUNDING PART OF THE DAM-SITE AND ORDERED THE ADJUTANT GENERAL OF
THE STATE TO OCCUPY IT.  THE FOLLOWING DAY THE GOVERNOR IN CONJUNCTION
WITH OTHER STATE OFFICIALS OBTAINED AN EX PARTE ORDER IN A STATE COURT
RESTRAINING FURTHER WORK ON THE DAM BY THE AUTHORITY.  THEREUPON THE
UNITED STATES BEGAN THE PRESENT SUIT IN A FEDERAL DISTRICT COURT.  A
TEMPORARY ORDER WAS ISSUED AGAINST THE GOVERNOR AND THE OTHER OFFICIALS
RESTRAINING THEM FROM INTERFERENCE WITH THE GRAND RIVER PROJECT BY
FURTHER PROSECUTION OF THEIR SUIT IN THE STATE COURT AND BY THE USE OF
MILITARY FORCE.  DEEMING THE SUIT TO BE ONE ARISING UNDER SEC. 266 OF
THE JUDICIAL CODE AS AMENDED, 28 U.S.C. SEC. 380, A DISTRICT COURT OF
THREE JUDGES WAS CONVENED WHICH, AFTER HEARING, ENTERED AN
INTERLOCUTORY INJUNCTION IN THE TERMS OF THE TEMPORARY RESTRAINING
ORDER.  THIS IS THE DECREE THAT IS NOW BEFORE US. 

BUT UNLESS SEC. 266 REQUIRED THE PRESENT SUIT TO BE HEARD BY THREE
JUDGES, UNDER THE JURISDICTIONAL ACT OF 1925 WE ARE WITHOUT AUTHORITY
TO ENTERTAIN THIS DIRECT APPEAL FROM A DISTRICT COURT.  SEC. 238 OF THE
JUDICIAL CODE AS AMENDED, 28 U.S.C. SEC. 345.  HAVING CONCLUDED THAT
THERE IS A FATAL BAR TO OUR ENTERTAINING THE APPEAL, WE ARE WITHOUT
POWER TO CONSIDER THE OTHER ISSUES THAT WERE ARGUED HERE. 

BY SEC. 266, WHICH IS SET FORTH IN THE MARGIN,  FN1  CONGRESS
PROVIDED AN EXCEPTIONAL PROCEDURE FOR A WELL-UNDERSTOOD TYPE OF
CONTROVERSY.  THE LEGISLATION WAS DESIGNED TO SECURE THE PUBLIC
INTEREST IN "A LIMITED CLASS OF CASES OF SPECIAL IMPORTANCE."  EX PARTE
COLLINS, 277 U.S. 565, 567.  IT IS A MATTER OF HISTORY THAT THIS
PROCEDURAL DEVICE WAS A MEANS OF PROTECTING THE INCREASING BODY OF
STATE LEGISLATION REGULATING ECONOMIC ENTERPRISE FROM INVALIDATION BY A
CONVENTIONAL SUIT IN EQUITY.  WHILE CONGRESS THUS SOUGHT TO ASSURE MORE
WEIGHT AND GREATER DELIBERATION BY NOT LEAVING THE FATE OF SUCH
LITIGATION TO A SINGLE JUDGE, IT WAS NO LESS MINDFUL THAT THE
REQUIREMENT OF THREE JUDGES, OF WHOM ONE MUST BE A JUSTICE OF THIS
COURT OR A CIRCUIT JUDGE, ENTAILS A SERIOUS DRAIN UPON THE FEDERAL
JUDICIAL SYSTEM PARTICULARLY IN REGIONS WHERE, DESPITE MODERN
FACILITIES, DISTANCE STILL PLAYS AN IMPORTANT PART IN THE EFFECTIVE
ADMINISTRATION OF JUSTICE.  AND ALL BUT THE FEW GREAT METROPOLITAN
AREAS ARE SUCH REGIONS.  MOREOVER, INASMUCH AS THIS PROCEDURE ALSO
BRINGS DIRECT REVIEW OF A DISTRICT COURT TO THIS COURT, ANY LOOSE
CONSTRUCTION OF THE REQUIREMENTS OF SEC. 266 WOULD DEFEAT THE PURPOSES
OF CONGRESS, AS EXPRESSED BY THE JURISDICTIONAL ACT OF FEBRUARY 13,
1925, TO KEEP WITHIN NARROW CONFINES OUR APPELLATE DOCKET.  MOORE V.
FIDELITY & DEPOSIT CO., 272 U.S. 317, 321.  THE HISTORY OF SEC. 266(SEE
POGUE, STATE DETERMINATION OF STATE LAW, 41 HARV. L. REV. 623, AND
HUTCHESON, A CASE FOR THREE JUDGES, 47 HARV. L. REV. 795), THE
NARROWNESS OF ITS ORIGINAL SCOPE, THE PIECE-MEAL EXPLICIT AMENDMENTS
WHICH WERE MADE TO IT (SEE ACT OF MARCH 4, 1913, 37 STAT. 1013, AND ACT
OF FEBRUARY 13, 1925, 43 STAT. 936, AMENDING SEC. 238 OF THE JUDICIAL
CODE), THE CLOSE CONSTRUCTION GIVEN THE SECTION IN OBEDIENCE TO
CONGRESSIONAL POLICY (SEE, FOR INSTANCE, MOORE V. FIDELITY & DEPOSIT
CO., SUPRA; SMITH V. WILSON, 273 U.S. 388; EX PARTE COLLINS, SUPRA;
OKLAHOMA GAS CO. V. PACKING CO., 292 U.S. 386; EX PARTE WILLIAMS, 277
U.S. 267; EX PARTE PUBLIC NATIONAL BANK, 278 U.S. 101; RORICK V. BOARD
OF COMM'RS, 307 U.S. 208; EX PARTE BRANSFORD, 310 U.S. 354), COMBINE TO
REVEAL SEC. 266 NOT AS A MEASURE OF BROAD SOCIAL POLICY TO BE CONSTRUED
WITH GREAT LIBERALITY, BUT AS AN ENACTMENT TECHNICAL IN THE STRICT
SENSE OF THE TERM AND TO BE APPLIED AS SUCH. 

TO BRING THIS PROCEDURAL DEVICE INTO PLAY - TO DISLOCATE THE NORMAL
OPERATIONS OF THE SYSTEM OF LOWER FEDERAL COURTS AND THEREAFTER TO COME
DIRECTLY TO THIS COURT - REQUIRES A SUIT WHICH SEEKS TO INTERPOSE THE
CONSTITUTION AGAINST ENFORCEMENT OF A STATE POLICY, WHETHER SUCH POLICY
IS DEFINED IN A STATE CONSTITUTION OR IN AN ORDINARY STATUTE OR THROUGH
THE DELEGATED LEGISLATION OF AN "ADMINISTRATIVE BOARD OR COMMISSION." 
THE CRUX OF THE BUSINESS IS PROCEDURAL PROTECTION AGAINST AN
IMPROVIDENT STATE-WIDE DOOM BY A FEDERAL COURT OF A STATE'S LEGISLATIVE
POLICY.  THIS WAS THE AIM OF CONGRESS AND THIS IS THE RECONCILING
PRINCIPLE OF THE CASES. 

TO THE TEST OF THIS PRINCIPLE MUST BE PUT THE ARGUMENT THAT THE
PRESENT CASE IS WITHIN SEC. 266. 

THE OKLAHOMA CONSTITUTION HAS THE CUSTOMARY PROVISIONS PERTAINING TO
THE POWERS OF A GOVERNOR.  IN HIM IS LODGED "THE SUPREME EXECUTIVE
POWER," HE IS "COMMANDER-IN-CHIEF OF THE MILITIA OF THE STATE" AND HE
"SHALL CAUSE THE LAWS OF THE STATE TO BE FAITHFULLY EXECUTED." 
CONSTITUTION OF OKLAHOMA, ARTICLE VI, SECS. 2, 6, 8.  DEFINING WITH
PARTICULARITY THESE POWERS, AN OKLAHOMA STATUTE "AUTHORIZED AND
REQUIRED" ITS GOVERNOR TO CALL OUT THE NATIONAL GUARD IN CASE OF WAR OR
SIMILAR CONTINGENCIES INCLUDING "ANY FORCIBLE OBSTRUCTING OF THE
EXECUTION OF THE LAWS OR REASONABLE APPREHENSION THEREOF, AND AT ALL
OTHER TIMES HE MAY DEEM NECESSARY  ...  "  OKLAHOMA STATUTES, 1931,
SEC. 4989; OKLA. STAT. ANN. TITLE 44, SEC. 66.  IN ITS COMPLAINT THE
UNITED STATES DID NOT IMPUGN THE VALIDITY OF THESE OKLAHOMA
PROVISIONS.  BUT THE GOVERNOR JUSTIFIED HIS DECLARATION OF MARTIAL LAW
UNDER THEIR AUTHORITY, AND SINCE HIS ACTION IS DEEMED A LAWLESS
INTERFERENCE WITH THE GOVERNMENT'S CONSTITUTIONAL RIGHTS, THE SUIT IS
CLAIMED TO BE AN "APPLICATION FOR" AN "INTERLOCUTORY INJUNCTION  ...
RESTRAINING THE ENFORCEMENT, OPERATION, OR EXECUTION OF" A "STATUTE OF
A STATE BY RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN THE
ENFORCEMENT OR EXECUTION OF SUCH STATUTE  ...  UPON THE GROUND OF THE
UNCONSTITUTIONALITY OF SUCH STATUTE." 

THE CLAIM PROVES TOO MUCH.  PROBABLY MOST OF THE ACTIONS OF GOVERNORS
TRACE BACK TO THE COMMON PROVISION CHARGING THEM WITH TAKING CARE THAT
THE LAWS BE FAITHFULLY EXECUTED.  SOME CONSTITUTIONAL OR STATUTORY
PROVISION IS THE ULTIMATE SOURCE OF ALL ACTIONS BY STATE OFFICIALS. 
BUT AN ATTACK ON LAWLESS EXERCISE OF AUTHORITY IN A PARTICULAR CASE IS
NOT AN ATTACK UPON THE CONSTITUTIONALITY OF A STATUTE CONFERRING THE
AUTHORITY EVEN THOUGH A MISREADING OF THE STATUTE IS INVOKED AS
JUSTIFICATION.  AT LEAST NOT WITHIN THE CONGRESSIONAL SCHEME OF SEC.
266.  IT IS SIGNIFICANT THAT THE UNITED STATES IN ITS COMPLAINT DID NOT
CHARGE THE ENABLING ACTS OF OKLAHOMA WITH UNCONSTITUTIONALITY, BUT
ASSAILED MERELY THE GOVERNOR'S ACTION AS EXCEEDING THE BOUNDS OF LAW. 
IN OTHER WORDS, IT SEEKS A RESTRAINT NOT OF A STATUTE BUT OF AN
EXECUTIVE ACTION.  BUT THE ENFORCEMENT OF A "STATUTE," WITHIN THE
MEANING OF SEC. 266, IS NOT SOUGHT TO BE ENJOINED MERELY BECAUSE A
STATE OFFICIAL SEEKS SHELTER UNDER IT BY WAY OF DEFENSE AGAINST A
CHARGE OF LAWLESSNESS.  AS MR. JUSTICE CARDOZO SAID OF A RELATED
PROBLEM AFFECTING THE BUSINESS OF THE FEDERAL COURTS, "WE DO NOT TRAVEL
BACK SO FAR."  GULLY V. FIRST NATIONAL BANK, 299 U.S. 109, 116. 

ON ITS FACE, SEC. 266 PRECLUDES A READING WHICH WOULD BRING WITHIN
ITS SCOPE EVERY SUIT TO RESTRAIN THE CONDUCT OF A STATE OFFICIAL
WHENEVER, IN THE ULTIMATE REACHES OF LITIGATION, SOME ENACTMENT MAY BE
SAID TO AUTHORIZE THE QUESTIONED CONDUCT.  THE SPECIAL PROCEDURE ONLY
ATTENDS "THE APPLICATION FOR" AN INTERLOCUTORY INJUNCTION RESTRAINING
ENFORCEMENT OF A STATUTE.  IN OTHER WORDS, THE COMPLAINANT MUST SEEK TO
FORESTALL THE DEMANDS OF SOME GENERAL STATE POLICY, THE VALIDITY OF
WHICH HE CHALLENGES.  NO ONE QUESTIONS OKLAHOMA'S AUTHORITY TO GIVE HER
GOVERNOR "SUPREME EXECUTIVE POWER" NOR TO MAKE HIM COMMANDER-IN-CHIEF
OF HER MILITIA.  WHAT IS HERE CHALLENGED IS A SINGLE, UNIQUE EXERCISE
OF THESE PREROGATIVES OF HIS OFFICE.  THIS VIEW IS REINFORCED BY THE
PROVISO ADDED TO SEC. 266 BY THE ACT OF MARCH 4, 1913, 37 STAT. 1013,
WHEREBY SUIT IN A FEDERAL COURT AGAINST THE ENFORCEMENT OF A STATUTE
CAN BE STAYED IF APPROPRIATE PROVISION IS MADE FOR TESTING ITS VALIDITY
IN THE STATE COURTS.  OF COURSE, A SUIT CANNOT BE BROUGHT IN THE COURT
OF A STATE TO ENFORCE A GOVERNOR'S DECLARATION OF MARTIAL LAW.  IN
SHORT, THIS IS NOT A CASE FOR WHICH THE PROCEDURAL STRUCTURE OF SEC.
266 WAS DEVISED.  IF THE GOVERNOR'S ACTION IS SUBJECT TO RESTRAINT IN
THE DISTRICT COURT, THE PROCEDURAL ROAD TO BE TAKEN IS THE NORMAL
COURSE OF LITIGATION IN A FEDERAL DISTRICT COURT AND NOT THE SHORT CUT
OF SEC. 266. 

STERLING V. CONSTANTIN, 287 U.S. 378, WHICH IS INVOKED AS A
PRECEDENT, WAS A VERY DIFFERENT CASE.  THERE MARTIAL LAW WAS EMPLOYED
IN SUPPORT OF AN ORDER OF THE TEXAS RAILROAD COMMISSION LIMITING
PRODUCTION OF OIL IN THE EAST TEXAS FIELD.  THE GOVERNOR WAS SOUGHT TO
BE RESTRAINED AS PART OF THE MAIN OBJECTIVE TO ENJOIN "THE EXECUTION OF
AN ORDER MADE BY AN ADMINISTRATIVE  ... COMMISSION," AND AS SUCH WAS
INDUBITABLY WITHIN SEC. 266.  COMPARE RAILROAD COMMISSION V. ROWAN &
NICHOLS OIL CO., 311 U.S. 570, AND RAILROAD COMMISSION V. HUMBLE OIL &
REFINING CO., 311 U.S. 578. 

HAD A TIMELY APPEAL BEEN TAKEN TO THE CIRCUIT COURT OF APPEALS THE
DECREE BELOW COULD HAVE BEEN REVIEWED THERE, THOUGH RENDERED BY THREE
JUDGES.  HEALY V. RATTA, 289 U.S. 701; 67 F.2D 554; 292 U.S. 263. 
WHILE THIS COURT CANNOT HEAR THE MERITS, IT WILL, WHERE THE QUESTION OF
JURISDICTION WAS NOT OBVIOUSLY SETTLED BY PRIOR DECISIONS, ENFORCE THE
LIMITATIONS OF SEC. 266 BY AN ORDER FRAMED TO SAVE APPELLANTS THEIR
PROPER REMEDIES.  OKLAHOMA GAS CO. V. PACKING CO., 292 U.S. 386, 392. 
WE THEREFORE VACATE THE DECREE AND REMAND THE CAUSE TO THE COURT WHICH
HEARD THE CASE SO THAT IT MAY ENTER A FRESH DECREE FROM WHICH
APPELLANTS MAY, IF THEY WISH, PERFECT A TIMELY APPEAL TO THE CIRCUIT
COURT OF APPEALS.  DECREE VACATED. 

FN1  JUDICIAL CODE SEC. 266, AS AMENDED, 28 U.S.C. SEC. 380: 

"NO INTERLOCUTORY INJUNCTION SUSPENDING OR RESTRAINING THE
ENFORCEMENT, OPERATION, OR EXECUTION OF ANY STATUTE OF A STATE BY
RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT
OR EXECUTION OF SUCH STATUTE OR IN THE ENFORCEMENT OR EXECUTION OF AN
ORDER MADE BY AN ADMINISTRATIVE BOARD OR COMMISSION ACTING UNDER AND
PURSUANT TO THE STATUTES OF SUCH STATE, SHALL BE ISSUED OR GRANTED BY
ANY JUSTICE OF THE SUPREME COURT, OR BY ANY DISTRICT COURT OF THE
UNITED STATES, OR BY ANY JUDGE THEREOF, OR BY ANY CIRCUIT JUDGE ACTING
AS DISTRICT JUDGE, UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH
STATUTE, UNLESS THE APPLICATION FOR THE SAME SHALL BE PRESENTED TO A
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, OR TO A CIRCUIT OR
DISTRICT JUDGE, AND SHALL BE HEARD AND DETERMINED BY THREE JUDGES, OF
WHOM AT LEAST ONE SHALL BE A JUSTICE OF THE SUPREME COURT OR A CIRCUIT
JUDGE, AND THE OTHER TWO MAY BE EITHER CIRCUIT OR DISTRICT JUDGES, AND
UNLESS A MAJORITY OF SAID THREE JUDGES SHALL CONCUR IN GRANTING SUCH
APPLICATION.  WHENEVER SUCH APPLICATION AS AFORESAID IS PRESENTED TO A
JUSTICE OF THE SUPREME COURT, OR TO A JUDGE, HE SHALL IMMEDIATELY CALL
TO HIS ASSISTANCE TO HEAR AND DETERMINE THE APPLICATION TWO OTHER
JUDGES: PROVIDED, HOWEVER, THAT ONE OF SUCH THREE JUDGES SHALL BE A
JUSTICE OF THE SUPREME COURT, OR A CIRCUIT JUDGE.  SAID APPLICATION
SHALL NOT BE HEARD OR DETERMINED BEFORE AT LEAST FIVE DAYS' NOTICE OF
THE HEARING HAS BEEN GIVEN TO THE GOVERNOR AND TO THE ATTORNEY GENERAL
OF THE STATE, AND TO SUCH OTHER PERSONS AS MAY BE DEFENDANTS IN THE
SUIT:  PROVIDED, THAT IF OF OPINION THAT IRREPARABLE LOSS OR DAMAGE
WOULD RESULT TO THE COMPLAINANT UNLESS A TEMPORARY RESTRAINING ORDER IS
GRANTED, ANY JUSTICE OF THE SUPREME COURT, OR ANY CIRCUIT OR DISTRICT
JUDGE, MAY GRANT SUCH TEMPORARY RESTRAINING ORDER AT ANY TIME BEFORE
SUCH HEARING AND DETERMINATION OF THE APPLICATION FOR AN INTERLOCUTORY
INJUNCTION, BUT SUCH TEMPORARY RESTRAINING ORDER SHALL REMAIN IN FORCE
ONLY UNTIL THE HEARING AND DETERMINATION OF THE APPLICATION FOR AN
INTERLOCUTORY INJUNCTION UPON NOTICE AS AFORESAID.  THE HEARING UPON
SUCH APPLICATION FOR AN INTERLOCUTORY INJUNCTION SHALL BE GIVEN
PRECEDENCE AND SHALL BE IN EVERY WAY EXPEDITED AND BE ASSIGNED FOR A
HEARING AT THE EARLIEST PRACTICABLE DAY AFTER THE EXPIRATION OF THE
NOTICE HEREINBEFORE PROVIDED FOR.  AN APPEAL MAY BE TAKEN DIRECT TO THE
SUPREME COURT OF THE UNITED STATES FROM THE ORDER GRANTING OR DENYING,
AFTER NOTICE AND HEARING, AN INTERLOCUTORY INJUNCTION IN SUCH CASE.  IT
IS FURTHER PROVIDED THAT IF BEFORE THE FINAL HEARING OF SUCH
APPLICATION A SUIT SHALL HAVE BEEN BROUGHT IN A COURT OF THE STATE
HAVING JURISDICTION THEREOF UNDER THE LAWS OF SUCH STATE, TO ENFORCE
SUCH STATUTE OR ORDER, ACCOMPANIED BY A STAY IN SUCH STATE COURT OF
PROCEEDINGS UNDER SUCH STATUTE OR ORDER PENDING THE DETERMINATION OF
SUCH SUIT BY SUCH STATE COURT, ALL PROCEEDINGS IN ANY COURT OF THE
UNITED STATES TO RESTRAIN THE EXECUTION OF SUCH STATUTE OR ORDER SHALL
BE STAYED PENDING THE FINAL DETERMINATION OF SUCH SUIT IN THE COURTS OF
THE STATE.  SUCH STAY MAY BE VACATED UPON PROOF MADE AFTER HEARING, AND
NOTICE OF TEN DAYS SERVED UPON THE ATTORNEY GENERAL OF THE STATE, THAT
THE SUIT IN THE STATE COURTS IS NOT BEING PROSECUTED WITH DILIGENCE AND
GOOD FAITH.  THE REQUIREMENT RESPECTING THE PRESENCE OF THREE JUDGES
SHALL ALSO APPLY TO THE FINAL HEARING IN SUCH SUIT IN THE DISTRICT
COURT; AND A DIRECT APPEAL TO THE SUPREME COURT MAY BE TAKEN FROM A
FINAL DECREE GRANTING OR DENYING A PERMANENT INJUNCTION IN SUCH SUIT." 

..END :







GUGGENHEIM V. RASQUIN, 312 U.S. 254 


NO. 92.  ARGUED JANUARY 6, 7, 1941.  - DECIDED FEBRUARY 3, 1941.  - 110
F.2D 371, AFFIRMED. 


1.  UNDER SEC. 506 OF THE REVENUE ACT OF 1932, WHICH PROVIDES THAT FOR
THE PURPOSES OF THE GIFT TAX THE AMOUNT OF A GIFT IS "THE VALUE THEREOF
AT THE DATE OF THE GIFT," THE "VALUE" IN THE CASE OF SINGLE-PREMIUM
POLICIES OF LIFE INSURANCE, IRREVOCABLY ASSIGNED SIMULTANEOUSLY WITH
ISSUANCE, IS THE COST TO THE DONOR AND NOT THE CASH SURRENDER VALUE OF
THE POLICIES.  P. 256. 

2.  ARTICLE 2(5) OF TREASURY REGULATIONS 79, WHICH PROVIDED THAT THE
"IRREVOCABLE ASSIGNMENT OF A LIFE INSURANCE POLICY  ...  CONSTITUTES A
GIFT IN THE AMOUNT OF THE NET CASH SURRENDER VALUE, IF ANY, PLUS THE
PREPAID INSURANCE ADJUSTED TO THE DATE OF THE GIFT," APPLIED ONLY TO
POLICIES UPON WHICH CURRENT PREMIUMS WERE STILL BEING PAID AT THE DATE
OF THE GIFT, NOT TO SINGLE-PREMIUM POLICIES.  P. 258. 

GUGGENHEIM V. RASQUIN, ADMINISTRATRIX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 311 U.S. 628, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PETITIONER, 28 F.SUPP.  322, IN A SUIT FOR A TAX REFUND. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IT IS PROVIDED IN THE REVENUE ACT OF 1932(47 STAT. 169, 248) THAT FOR
GIFT-TAX PURPOSES THE AMOUNT OF A GIFT OF PROPERTY SHALL BE "THE VALUE
THEREOF AT THE DATE OF THE GIFT."  SEC. 506.  THIS CONTROVERSY INVOLVES
THE QUESTION OF WHETHER SUCH "VALUE" IN CASE OF SINGLE-PREMIUM LIFE
INSURANCE POLICIES, WHICH ARE IRREVOCABLY ASSIGNED SIMULTANEOUSLY WITH
ISSUANCE, IS COST TO THE DONOR OR CASH-SURRENDER VALUE OF THE
POLICIES.  THE CASE IS HERE ON A PETITION FOR CERTIORARI WHICH WE
GRANTED BECAUSE OF A CONFLICT AMONG THE CIRCUIT COURTS OF APPEALS  FN1
AS RESPECTS THE PROPER METHOD FOR VALUATION OF SUCH GIFTS MADE PRIOR TO
1936.  FN2 

IN DECEMBER, 1934, PETITIONER PURCHASED, AT A COST OF $852,438.50,
SINGLE-PREMIUM LIFE INSURANCE POLICIES ON HER OWN LIFE IN THE AGGREGATE
FACE AMOUNT OF $1,000,000.  AT SUBSTANTIALLY THE SAME TIME SHE ASSIGNED
THEM IRREVOCABLY TO THREE OF HER CHILDREN.  HER GIFT-TAX RETURN LISTED
THE POLICIES AT THEIR ASSERTED CASH-SURRENDER VALUE  FN3  OF
$717,344.81.  THE COMMISSIONER DETERMINED THAT THE "VALUE" OF THE
POLICIES WAS THEIR COST AND ASSESSED A DEFICIENCY WHICH PETITIONER
PAID.  THIS IS A SUIT FOR A REFUND.  JUDGMENT FOR PETITIONER IN THE
DISTRICT COURT WAS REVERSED BY THE CIRCUIT COURT OF APPEALS.  110 F.2D
371. 

WE AGREE WITH THE CIRCUIT COURT OF APPEALS THAT COST RATHER THAN CASH
SURRENDER VALUE IS THE PROPER CRITERION FOR VALUATION OF SUCH GIFTS
UNDER SEC. 506 OF THE ACT. 

CASH-SURRENDER VALUE IS THE RESERVE LESS A SURRENDER CHARGE.  AND IN
CASE OF A SINGLE-PREMIUM POLICY THE RESERVE IS THE FACE AMOUNT OF THE
CONTRACT DISCOUNTED AT A SPECIFIED RATE OF INTEREST ON THE BASIS OF THE
INSURED'S EXPECTED LIFE.  IF THE POLICY IS SURRENDERED, THE COMPANY
WILL PAY THE CASH-SURRENDER VALUE.  IT IS ASSERTED THAT THE MARKET FOR
INSURANCE CONTRACTS IS USUALLY THE ISSUING COMPANIES OR THE BANKS WHO
WILL LEND MONEY ON THEM; THAT BANKS WILL NOT LOAN MORE THAN THE CASH
SURRENDER VALUE; AND THAT IF POLICIES HAD AN ACTUAL REALIZABLE VALUE IN
EXCESS OF THEIR CASH-SURRENDER VALUE, THERE WOULD ARISE A BUSINESS OF
PURCHASING SUCH POLICIES FROM THOSE WHO OTHERWISE WOULD SURRENDER
THEM.  FROM THESE FACTS IT IS URGED THAT CASH-SURRENDER VALUE
REPRESENTS THE AMOUNT WHICH WOULD BE ACTUALLY OBTAINED FOR THE POLICIES
IN A WILLING BUYER-WILLING SELLER MARKET - THE TEST SUGGESTED BY
TREASURY REGULATIONS 79, ART. 19(1), PROMULGATED OCTOBER 30, 1933. 
FN4 

THAT ANALYSIS, HOWEVER, OVERLOOKS THE NATURE OF THE PROPERTY INTEREST
WHICH IS BEING VALUED.  SURRENDER OF A POLICY REPRESENTS ONLY ONE OF
THE RIGHTS OF THE INSURED OR BENEFICIARY.  PLAINLY THAT RIGHT IS ONE OF
THE SUBSTANTIAL LEGAL INCIDENTS OF OWNERSHIP.  SEE CHASE NATIONAL BANK
V. UNITED STATES, 278 U.S. 327, 335; VANCE ON INSURANCE (2D ED.)  PP.
54-56.  BUT THE OWNER OF A FULLY PAID LIFE INSURANCE POLICY HAS MORE
THAN THE MERE RIGHT TO SURRENDER IT; HE HAS THE RIGHT TO RETAIN IT FOR
ITS INVESTMENT VIRTUES AND TO RECEIVE THE FACE AMOUNT OF THE POLICY
UPON THE INSURED'S DEATH.  THAT THESE LATTER RIGHTS ARE DEEMED BY
PURCHASERS OF INSURANCE TO HAVE SUBSTANTIAL VALUE IS CLEAR FROM THE
DIFFERENCE BETWEEN THE COST OF A SINGLE-PREMIUM POLICY AND ITS
IMMEDIATE OR EARLY CASHSURRENDER VALUE - IN THE INSTANT CASE OVER
$135,000.  ALL OF THE ECONOMIC BENEFITS OF A POLICY MUST BE TAKEN INTO
CONSIDERATION IN DETERMINING ITS VALUE FOR GIFT-TAX PURPOSES.  TO
SINGLE OUT ONE AND TO DISREGARD THE OTHERS IS IN EFFECT TO SUBSTITUTE A
DIFFERENT PROPERTY INTEREST FOR THE ONE WHICH WAS THE SUBJECT OF THE
GIFT.  IN THIS SITUATION AS IN OTHERS (SUSQUEHANNA POWER CO. V. STATE
TAX COMM'N, 283 U.S. 291, 296) AN IMPORTANT ELEMENT IN THE VALUE OF THE
PROPERTY IS THE USE TO WHICH IT MAY BE PUT.  CERTAINLY THE PETITIONER
HERE DID NOT EXPEND $852,438.50 TO MAKE AN IMMEDIATE GIFT LIMITED TO
$717,344.81.  PRESUMPTIVELY THE VALUE OF THESE POLICIES AT THE DATE OF
THE GIFT WAS THE AMOUNT WHICH THE INSURED HAD EXPENDED TO ACQUIRE
THEM.  COST IS COGENT EVIDENCE OF VALUE.  AND HERE IT IS THE ONLY
SUGGESTED CRITERION WHICH REFLECTS THE VALUE TO THE OWNER OF THE ENTIRE
BUNDLE OF RIGHTS IN A SINGLE-PREMIUM POLICY - THE RIGHT TO RETAIN IT AS
WELL AS THE RIGHT TO SURRENDER IT.  COST IN THIS SITUATION IS NOT
MARKET PRICE IN THE NORMAL SENSE OF THE TERM.  BUT THE ABSENCE OF
MARKET PRICE IS NO BARRIER TO VALUATION.  FN5  LUCAS V. ALEXANDER, 279
U.S. 573, 579. 

PETITIONER, HOWEVER, ARGUES THAT CASH-SURRENDER VALUE WAS MADE THE
MEASURE OF VALUE BY ART. 2(5), TREASURY REGULATIONS 79, PROMULGATED
OCTOBER 30, 1933, WHICH PROVIDED THAT THE "IRREVOCABLE ASSIGNMENT OF A
LIFE INSURANCE POLICY  ...  CONSTITUTES A GIFT IN THE AMOUNT OF THE NET
CASH SURRENDER VALUE, IF ANY, PLUS THE PREPAID INSURANCE ADJUSTED TO
THE DATE OF THE GIFT."  THE ARGUMENT IS THAT UNDER THIS REGULATION THE
RESERVE IN CASE OF A SINGLE-PREMIUM POLICY COVERS THE PREPAID INSURANCE
AND REPRESENTS THE ENTIRE VALUE OF THE POLICY.  THE REGULATION IS
SOMEWHAT AMBIGUOUS.  BUT IN OUR VIEW IT APPLIED ONLY TO POLICIES UPON
WHICH CURRENT PREMIUMS WERE STILL BEING PAID AT THE DATE OF THE GIFT,
NOT TO SINGLE-PREMIUM POLICIES.  ACCORDINGLY, THE PROBLEM HERE INVOLVES
AN INTERPRETATION OF THE MEANING OF "VALUE" IN SEC. 506 UNAIDED BY AN
INTERPRETATIVE REGULATION.  AFFIRMED. 

FN1  IN CONFLICT WITH THE DECISION BELOW ARE COMMISSIONER V. HAINES,
104 F.2D 854(C.C.A. 3D); HELVERING V. CRONIN, 106 F.2D 907(C.C.A.8TH);
UNITED STATES V. RYERSON, 114 F.2D 150(C.C.A.7TH), DISCUSSED IN PAUL,
STUDIES IN FEDERAL TAXATION (3D SERIES) PP. 403, ET SEQ. 

FN2  ART. 19(9), TREASURY REGULATIONS 79, PROMULGATED FEBRUARY 26,
1936, PROVIDES THAT REPLACEMENT COST AT THE DATE OF THE GIFT IS THE
MEASURE OF VALUE OF A SINGLE-PREMIUM LIFE INSURANCE POLICY. 

FN3  THE GOVERNMENT ASSERTS THAT NONE OF THE POLICIES HAD A
CASHSURRENDER VALUE PRIOR TO THE EXPIRATION OF ONE YEAR.  IN VIEW OF
OUR DISPOSITION OF THE CASE WE DO NOT STOP TO DECIDE WHETHER, IN VIEW
OF THE PLEADINGS AND THE STIPULATION, THAT POSITION CAN BE MAINTAINED
HERE. 

FN4  ART. 19(1) PROVIDED:  "...  THE VALUE OF PROPERTY IS THE PRICE
AT WHICH SUCH PROPERTY WOULD CHANGE HANDS BETWEEN A WILLING BUYER AND A
WILLING SELLER, NEITHER BEING UNDER ANY COMPULSION TO BUY OR TO SELL. 
WHERE THE PROPERTY IS SOLD WITHIN A REASONABLE PERIOD AFTER THE DATE OF
THE GIFT, AND IT IS SHOWN THAT THE SELLING PRICE REFLECTS THE FAIR
MARKET VALUE THEREOF AS OF THE DATE OF THE GIFT, THE SELLING PRICE WILL
BE ACCEPTED AS THE AMOUNT OF THE GIFT.  ALL RELEVANT FACTS AND ELEMENTS
OF VALUE SHOULD BE CONSIDERED IN EVERY CASE." 

FN5  IN THIS CONNECTION IT SHOULD BE NOTED THAT ART. 19(1), SUPRA,
NOTE 4, DID NOT ESTABLISH MARKET PRICE AS THE SOLE CRITERION OF VALUE. 

..END :




















POWERS V. COMMISSIONER, 312 U.S. 259 


NO. 486.  ARGUED JANUARY 7, 1941.  - DECIDED FEBRUARY 3, 1941.  - 115
F.2D 209, AFFIRMED. 


DETERMINATION OF THE CRITERION OF "VALUE" FOR THE PURPOSES OF THE GIFT
TAX UNDER THE REVENUE ACT OF 1932 IS A QUESTION OF LAW, AND A DECISION
OF THE BOARD OF TAX APPEALS THAT IN THE CASE OF SINGLE-PREMIUM POLICIES
OF LIFE INSURANCE, IRREVOCABLY ASSIGNED AS GIFTS SHORTLY AFTER
ISSUANCE, THE VALUE OF THE GIFTS WAS THE CASH SURRENDER VALUE OF THE
POLICIES, WAS PROPERLY REVERSED BY THE CIRCUIT COURT OF APPEALS AS "NOT
IN ACCORDANCE WITH LAW."  GUGGENHEIM V. RASQUIN, ANTE P. 254.  P. 260. 

POWERS V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 311 U.S. 640, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS SETTING ASIDE A DETERMINATION OF A DEFICIENCY IN A
GIFT TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS THE SAME AS THAT IN GUGGENHEIM V. RASQUIN,
ANTE, P. 254.  PETITIONER IN NOVEMBER AND DECEMBER, 1935, PURCHASED
SINGLE-PREMIUM POLICIES OF INSURANCE ON HER OWN LIFE AND LATE IN
DECEMBER, 1935, IRREVOCABLY ASSIGNED THEM AS GIFTS.  THE COMMISSIONER
DETERMINED A DEFICIENCY, CLAIMING THAT THE VALUE OF THE POLICIES FOR
GIFT-TAX PURPOSES WAS THE COST OF DUPLICATING THEM AT THE DATES OF THE
GIFTS, NOT THE CASH-SURRENDER VALUE AS REPORTED BY PETITIONER.  THE
BOARD OF TAX APPEALS HELD THAT THE VALUE OF THE GIFTS WAS THEIR
CASHSURRENDER VALUE.  THE CIRCUIT COURT OF APPEALS REVERSED.  115 F.2D
209.  THAT JUDGMENT MUST BE AFFIRMED ON THE AUTHORITY OF GUGGENHEIM V.
RASQUIN, SUPRA, UNLESS AS CLAIMED BY PETITIONER THE COURT BELOW WAS
PRECLUDED FROM SUBSTITUTING ITS JUDGMENT OF VALUE FOR THAT OF THE
BOARD.  HELVERING V. RANKIN, 295 U.S. 123, 131.  BUT THE QUESTION OF
WHAT CRITERION SHOULD BE EMPLOYED FOR DETERMINING THE "VALUE" OF THE
GIFTS IS A QUESTION OF LAW.  SEE LUCAS V. ALEXANDER, 279 U.S. 573. 
ACCORDINGLY, THE CIRCUIT COURT OF APPEALS WAS JUSTIFIED IN REVERSING
THE DECISION OF THE BOARD AS "NOT IN ACCORDANCE WITH LAW."  INT. REV.
CODE 1939, SEC. 1141(C)(1); 53 STAT. 164.  AFFIRMED. 
..END :










UNITED STATES V. RYERSON, 312 U.S. 260 


NO. 494.  ARGUED JANUARY 7, 1941.  - DECIDED FEBRUARY 3, 1941.  - 114
F.2D 150, REVERSED. 


THE LAPSE OF TIME BETWEEN THE ISSUANCE OF SINGLE-PREMIUM POLICIES OF
LIFE INSURANCE AND THEIR ASSIGNMENT AS GIFTS, HELD NOT TO JUSTIFY THE
SUBSTITUTION OF CASH SURRENDER VALUE, INSTEAD OF REPLACEMENT COST AT
THE DATE OF THE GIFT, AS THE CRITERION OF VALUE FOR THE PURPOSES OF THE
GIFT TAX UNDER THE REVENUE ACT OF 1932.  P. 261. 

UNITED STATES V. RYERSON ET AL., EXECUTORS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 311 U.S. 640, TO REVIEW THE REVERSAL OF A JUDGMENT, 28
F.SUPP.  265, FOR THE TAXPAYER IN A SUIT TO RECOVER ALLEGED
OVERPAYMENTS OF GIFT TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IS THE SAME AS THAT IN GUGGENHEIM V. RASQUIN, ANTE,
P. 254.  CONSEQUENTLY THE DECISION OF THE CIRCUIT COURT OF APPEALS
HOLDING THAT CASH-SURRENDER VALUE ON THE DATES OF THE GIFTS WAS THE
PROPER METHOD OF VALUING SINGLE-PREMIUM LIFE INSURANCE POLICIES FOR
GIFT-TAX PURPOSES (114 F.2D 150) MUST BE REVERSED, UNLESS THE ELAPSE OF
TIME BETWEEN THE ISSUANCE OF THE POLICIES AND THE MAKING OF THE GIFTS
CALLS FOR A DIFFERENT RESULT.  THE SINGLE-PREMIUM POLICIES HERE
INVOLVED WERE TAKEN OUT BY THE INSURED IN 1928 AND 1929.  THEY WERE
ASSIGNED AS GIFTS IN DECEMBER, 1934, WHEN THE INSURED WAS 79 YEARS
OLD.  THE COST OF THE POLICIES WAS LESS THAN THEIR CASHSURRENDER VALUE
AT THE DATES OF THE GIFTS.  BUT THE COST OF REPLACING THE POLICIES AT
THE THEN AGE OF THE INSURED WOULD HAVE BEEN IN EXCESS OF THEIR CASH
SURRENDER VALUE.  WE THINK THAT SUCH COST OF REPLACEMENT, AS HELD BY
THE DISTRICT COURT, IS THE BEST AVAILABLE CRITERION OF THE VALUE OF THE
POLICIES FOR THE PURPOSES OF THE GIFT TAX.  THE ELAPSE OF TIME BETWEEN
ISSUANCE AND ASSIGNMENT OF THE POLICIES DOES NOT JUSTIFY THE
SUBSTITUTION OF CASH-SURRENDER VALUE FOR REPLACEMENT COST AS THE
CRITERION OF VALUE.  WE CANNOT ASSUME WITH RESPONDENTS THAT AT THE
DATES OF THE GIFTS THE POLICIES PRESUMABLY HAD NO INSURANCE, AS
DISTINGUISHED FROM INVESTMENT, VALUE TO THE DONOR.  HERE, AS IN THE
CASE WHERE THE ISSUANCE OF THE POLICIES AND THEIR ASSIGNMENT AS GIFTS
ARE SIMULTANEOUS, CASH-SURRENDER VALUE REFLECTS ONLY A PART OF THE
VALUE OF THE CONTRACTS.  THE COST OF DUPLICATING THE POLICIES AT THE
DATES OF THE GIFTS IS, IN ABSENCE OF MORE COGENT EVIDENCE, THE ONE
CRITERION WHICH REFLECTS BOTH THEIR INSURANCE AND INVESTMENT VALUE TO
THE OWNER AT THAT TIME.  CF. VANCE ON INSURANCE (2D ED.)  PP. 332-333;
SPEER V. PHOENIX MUTUAL LIFE INS. CO., 36 HUN 322.  THE FACT THAT THE
THEN CONDITION OF AN INSURED'S HEALTH MIGHT MAKE HIM UNINSURABLE
EMPHASIZES THE CONCLUSION THAT THE USE OF THAT CRITERION WILL RESULT IN
PLACING A MINIMUM VALUE UPON SUCH A GIFT.  REVERSED. 
..END :






















WOODS V. CITY BANK CO., 312 U.S. 262 


NOS. 281 AND 282.  ARGUED JANUARY 13, 1941.  - DECIDED FEBRUARY 3,
1941.  - 111 F.2D 834, REVERSED. 


1.  UNDER CHAPTER X OF THE BANKRUPTCY ACT, THE BANKRUPTCY COURT HAS
PLENARY POWER TO REVIEW ALL FEES AND EXPENSES IN CONNECTION WITH THE
REORGANIZATION FROM WHATEVER SOURCE THEY MAY BE PAYABLE.  REASONABLE
COMPENSATION FOR SERVICES RENDERED MAY BE ALLOWED.  THE CLAIMANT HAS
THE BURDEN OF PROVING THEIR WORTH.  P. 267. 

2.  "REASONABLE COMPENSATION FOR SERVICES RENDERED" NECESSARILY
IMPLIES LOYAL AND DISINTERESTED SERVICE IN THE INTEREST OF THOSE FOR
WHOM THE CLAIMANT PURPORTED TO ACT.  P. 268. 

3.  NO COMPENSATION SHOULD BE ALLOWED FOR SERVICES RENDERED IN
CONNECTION WITH A REORGANIZATION BY A CLAIMANT WHO REPRESENTED NOT ONLY
MEMBERS OF THE INVESTING PUBLIC BUT ALSO OTHER AND CONFLICTING
INTERESTS; AND THIS ALTHOUGH NO FRAUD OR UNFAIRNESS IS SHOWN TO HAVE
RESULTED FROM THE CONFLICT.  P. 268. 

4. IN CORPORATE REORGANIZATIONS, PROTECTIVE COMMITTEES, AS WELL AS
INDENTURE TRUSTEES, ARE FIDUCIARIES.  P. 268. 

5.  EXPENDITURES INCURRED IN CONNECTION WITH THE ADMINISTRATION OF
THE ESTATE ARE NOT "PROPER," WITHIN THE MEANING OF SEC. 242 OF THE ACT,
AND SHOULD NOT BE ALLOWED, WHERE THE CLAIMANT CAN NOT SHOW THAT THEY
WERE MADE IN FURTHERANCE OF A PROJECT EXCLUSIVELY DEVOTED TO THE
INTERESTS OF THOSE WHOM THE CLAIMANT PURPORTED TO REPRESENT.  ON THE
OTHER HAND, THOSE EXPENDITURES NORMALLY SHOULD BE ALLOWED WHICH HAVE
CLEARLY BENEFITED THE ESTATE.  P. 269. 

WOODS, COURT TRUSTEE, V. CITY NATIONAL BANK AND TRUST CO. OF CHICAGO
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 311 U.S. 629, TO REVIEW THE REVERSAL OF AN ORDER, IN A
PROCEEDING UNDER CHAPTER X OF THE BANKRUPTCY ACT, WHICH DISALLOWED THE
CLAIMS OF AN INDENTURE TRUSTEE, A BONDHOLDERS' COMMITTEE, AND THEIR
COUNSEL, FOR SERVICES AND EXPENSES, AND WHICH ALLOWED IN PART A COUNTER
CLAIM MADE BY THE TRUSTEE IN BANKRUPTCY.  THE LATTER TOOK TWO APPEALS,
ONE BY PETITION TO THE DISTRICT COURT, THE OTHER BY PETITION TO THE
CIRCUIT COURT OF APPEALS - PRIOR TO THE RULING IN RECONSTRUCTION
FINANCE CORP. V. PRUDENCE SECURITIES ADVISORY GROUP, 311 U.S. 579. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE BASIC QUESTION INVOLVED IN THIS CASE CONCERNS THE POWER OF THE
DISTRICT COURT IN PROCEEDINGS UNDER CH. X OF THE CHANDLER ACT  FN1  (52
STAT. 840) TO DISALLOW CLAIMS FOR COMPENSATION AND REIMBURSEMENT ON THE
GROUNDS THAT THE CLAIMANTS WERE SERVING DUAL OR CONFLICTING INTERESTS. 
THE CLAIMANTS, RESPONDENTS HERE, ARE AN INDENTURE TRUSTEE, A
BONDHOLDERS' COMMITTEE, AND THE COMMITTEE'S COUNSEL.  COUNSEL TO THE
COMMITTEE WAS ALSO COUNSEL TO THE INDENTURE TRUSTEE; AND ITS SERVICES
IN THE LATTER CAPACITY WERE INCLUDED IN THE CLAIM OF THE INDENTURE
TRUSTEE.  THE BANKRUPTCY TRUSTEE APPEARED IN OPPOSITION TO THE
ALLOWANCE OF THESE CLAIMS, AND COUNTERCLAIMED AGAINST THE INDENTURE
TRUSTEE SEEKING TO SURCHARGE IT FOR VARIOUS ALLEGED ACTS OF MISCONDUCT
AND NEGLIGENCE.  THE INDENTURE TRUSTEE ANSWERED.  THERE WAS A HEARING
ON THE CLAIMS AND ON THE COUNTERCLAIM.  THE DISTRICT COURT DISALLOWED
THE CLAIMS "FOR WANT OF EQUITY"; AND ALLOWED THE COUNTERCLAIM ONLY AS A
RECOUPMENT TO EXTINGUISH ANY CLAIMS OF RESPONDENTS.  ON APPEAL THE
CIRCUIT COURT OF APPEALS REVERSED.  111 F.2D 834.  IT HELD THAT THERE
WAS NO CONSPIRACY TO DEFRAUD, NOR SUBSTANTIAL EVIDENCE OF MISMANAGEMENT
OR NEGLIGENCE ON THE PART OF RESPONDENT-TRUSTEE.  IT THEREUPON REMANDED
THE CAUSE TO THE DISTRICT COURT, INDICATING THAT THE OUT-OF-POCKET
EXPENSES SHOULD BE ALLOWED IN FULL AND THAT THE REASONABLE AND
CUSTOMARY CHARGE FOR SERVICES SO RENDERED SHOULD GOVERN THE CLAIMS FOR
COMPENSATION.  WE GRANTED THE PETITION FOR WRITS OF CERTIORARI  FN2 IN
VIEW OF THE IMPORTANCE IN REORGANIZATION PROCEEDINGS OF THE POWER OF
THE DISTRICT COURT OVER SUCH ALLOWANCES. 

WE ARE NOT INCLINED TO QUESTION THE CONCLUSION OF THE CIRCUIT COURT
OF APPEALS ON THE ISSUE OF FRAUD.  WE AGREE WITH IT THAT ON THIS RECORD
RECOVERY ON THE COUNTERCLAIM WOULD NOT BE WARRANTED.  BUT WE DO NOT
BELIEVE IT WAS JUSTIFIED IN DISREGARDING THE EVIDENCE AND FINDINGS OF
FACT AS RESPECTS RESPONDENTS' DUAL OR CONFLICTING INTERESTS IN THIS
REORGANIZATION. 

THE PROPERTY HERE INVOLVED IS AN APARTMENT HOTEL - GRANADA
APARTMENTS, INC. A COMMITTEE WAS FORMED BY THE RESPONDENT-TRUSTEE  FN3
TO REPRESENT THE FIRST MORTGAGE BONDS IN THE REORGANIZATION.  IT WAS
COMPOSED OF FIVE MEMBERS.  TWO OF THESE WERE OFFICERS OR EMPLOYEES OF
ONE OF THE PRINCIPAL UNDERWRITERS OF THE BONDS.  FN4  THIS UNDERWRITER
WAS HEAVILY INTERESTED IN THE EQUITY.  FN5  SO FAR AS APPEARS, THAT
FACT WAS NOT DISCLOSED WHEN THE COMMITTEE SOLICITED THE BONDHOLDERS. 
IN ANY EVENT, THE EQUITY OWNER IS PECULIARLY ILL-SUITED TO REPRESENT
THE MORTGAGEE IN THESE SITUATIONS BECAUSE OF THEIR HISTORIC CLASH OF
INTERESTS.  SEE CASE V. LOS ANGELES LUMBER PRODUCTS CO., 308 U.S. 106. 
FURTHERMORE, A RATHER SERIOUS QUESTION WAS RAISED EARLY IN THIS
REORGANIZATION CONCERNING ALLEGED MISREPRESENTATIONS BY THE
UNDERWRITERS ON THE SALE OF THE BONDS THAT THE FURNISHINGS OF THE HOTEL
WERE COVERED BY THE MORTGAGE.  IT TURNED OUT THAT THEY WERE NOT; AND
BONDHOLDERS' MONEY WAS USED TO SATISFY THE LIEN OUTSTANDING AGAINST
THEM.  FN6  OBJECTIVE SCRUTINY AND FULL ENFORCEMENT OF AN UNDERWRITER'S
LIABILITY REQUIRES A COMMITTEE FREED FROM THAT UNDERWRITER'S
INFLUENCE. 

THE COMMITTEE WAS CLOSELY AFFILIATED WITH THE RESPONDENT-TRUSTEE,
WHICH, AS WE HAVE NOTED, CAUSED ITS FORMATION.  AND RESPONDENT-TRUSTEE
WAS IN TURN LATER APPOINTED AS SUCCESSOR TRUSTEE UNDER THE MORTGAGE ON
PETITION OF THE COMMITTEE.  THE COMMITTEE HAD AS ITS TWO MOST ACTIVE
MEMBERS OFFICERS OF THE INDENTURE TRUSTEE.  IT WAS IN SUBSTANCE A PART
OF THE INDENTURE TRUSTEE'S REORGANIZATION DIVISION.  FN7  THE INDENTURE
TRUSTEE WAS THE COMMITTEE'S DEPOSITARY; IT WOULD RECEIVE ANY FEES
ACCRUING TO THE COMMITTEE.  INDENTURE TRUSTEES THEMSELVES HAVE
FREQUENTLY CONDEMNED SUCH ENTANGLEMENTS WITH COMMITTEES.  FN8  THE
INDENTURE TRUSTEE REPRESENTS ALL THE BONDHOLDERS; THE COMMITTEE THOSE
WHO HAVE GIVEN IT AUTHORIZATIONS - IN THIS CASE ABOUT 50 PER CENT.
WHERE THE INTERESTS OF MAJORITIES AND MINORITIES DO NOT COINCIDE, THE
INTERESTS OF THE INDENTURE TRUSTEE AND THE COMMITTEE WILL TEND TO BE
ANTAGONISTIC.  FN9  BEYOND THAT IS THE FACT THAT AN INDENTURE TRUSTEE
CLOSELY AFFILIATED WITH A COMMITTEE SHARES THE COMMITTEE'S CONFLICTS OF
INTEREST. 

IN THIS CASE THE INDENTURE TRUSTEE WAS ALSO INDENTURE TRUSTEE FOR
NEIGHBORING APARTMENT PROPERTIES AND DOMINATED THE COMMITTEES
REPRESENTING THE BONDS OF THOSE OTHER COMPANIES.  TWO MEMBERS OF
RESPONDENT COMMITTEE WERE ALSO MEMBERS OF ONE OF THOSE OTHER
COMMITTEES.  THERE WAS NO UNITARY PLAN OF REORGANIZATION FOR THESE
SEVERAL PROPERTIES.  BUT THERE WERE DEALINGS BETWEEN THEM BY THEIR
COMMON REPRESENTATIVES - DEALINGS ATTACKED BY PETITIONER AS UNFAIR TO
THE INSTANT COMPANY AND DEFENDED BY RESPONDENTS AS FAIR. 

THAT IS NOT ALL. 

COUNSEL TO THE COMMITTEE WAS NOT ONLY COUNSEL TO THE INDENTURE
TRUSTEE IN THIS REORGANIZATION; IT WAS ALSO COUNSEL TO THE INDENTURE
TRUSTEE AND THE COMMITTEES FOR THE NEIGHBORING PROPERTIES.  AND
RESPONDENT-COUNSEL HAD ACTED AS GENERAL COUNSEL FOR ONE OF THE TWO
PRINCIPAL UNDERWRITERS N10 DURING THE FIANANCING OF THE PROPERTY HERE
INVOLVED; AND THAT UNDERWRITER'S PROSPECTUS WAS UNDER ATTACK IN THESE
PROCEEDINGS.  FN11 

UNDER CH. X OF THE CHANDLER ACT THE BANKRUPTCY COURT HAS PLENARY
POWER TO REVIEW ALL FEES AND EXPENSES IN CONNECTION WITH THE
REORGANIZATION FROM WHATEVER SOURCE THEY MAY BE PAYABLE.  FN12
REASONABLE COMPENSATION FOR SERVICES RENDERED MAY BE ALLOWED.  FN13
THE CLAIMANT, HOWEVER, HAS THE BURDEN OF PROVING THEIR WORTH. 
FURTHERMORE, "REASONABLE COMPENSATION FOR SERVICES RENDERED"
NECESSARILY IMPLIES LOYAL AND DISINTERESTED SERVICE IN THE INTEREST OF
THOSE FOR WHOM THE CLAIMANT PURPORTED TO ACT.  AMERCIAN UNITED MUTUAL
LIFE INS. CO. V. CITY OF AVON PARK, 311 U.S. 138.  WHERE A CLAIMANT,
WHO REPRESENTED MEMBERS OF THE INVESTING PUBLIC, WAS SERVING MORE THAN
ONE MASTER OR WAS SUBJECT TO CONFLICTING INTERESTS, HE SHOULD BE DENIED
COMPENSATION.  IT IS NO ANSWER TO SAY THAT FRAUD OR UNFAIRNESS WERE NOT
SHOWN TO HAVE RESULTED.  CF. JACKSON V. SMITH, 254 U.S. 586, 589.  THE
PRINCIPLE ENUNCIATED BY CHIEF JUSTICE TAFT IN A CASE INVOLVING A
CONTRACT TO SPLIT FEES IN VIOLATION OF THE BANKRUPTCY RULES, IS
APPOSITE HERE:  "WHAT IS STRUCK AT IN THE REFUSAL TO ENFORCE CONTRACTS
OF THIS KIND IS NOT ONLY ACTUAL EVIL RESULTS BUT THEIR TENDENCY TO EVIL
IN OTHER CASES."  WEIL V. NEARY, 278 U.S. 160, 173.  FURTHERMORE, THE
INCIDENCE OF A PARTICULAR CONFLICT OF INTEREST CAN SELDOM BE MEASURED
WITH ANY DEGREE OF CERTAINTY.  THE BANKRUPTCY COURT NEED NOT SPECULATE
AS TO WHETHER THE RESULT OF THE CONFLICT WAS TO DELAY ACTION WHERE
SPEED WAS ESSENTIAL, TO CLOSE THE RECORD OF PAST TRANSACTIONS WHERE
PUBLICITY AND INVESTIGATION WERE NEEDED, TO COMPROMISE CLAIMS BY
INATTENTION WHERE VIGILANT ASSERTION WAS NECESSARY, OR OTHERWISE TO
DILUTE THE UNDIVIDED LOYALTY OWED TO THOSE WHOM THE CLAIMANT PURPORTED
TO REPRESENT.  WHERE AN ACTUAL CONFLICT OF INTEREST EXISTS, NO MORE
NEED BE SHOWN IN THIS TYPE OF CASE TO SUPPORT A DENIAL OF
COMPENSATION. 

PROTECTIVE COMMITTEES, AS WELL AS INDENTURE TRUSTEES, ARE
FIDUCIARIES.  BULLARD V. CITY OF CISCO, 290 U.S. 179; JEWETT V.
COMMONWEALTH BOND CORP., 241 APP. DIV. 131; 271 N.Y.S. 522; BERGELT V.
ROBERTS, 144 MISC. 832; 258 N.Y.S. 905, AFF'D 236 APP. DIV. 777; 258
N.Y.S. 1086; CARTER V. FIRST NAT'L BANK, 128 MD. 581; 98 A. 77.  CF.
NICHOL V. SENSENBRENNER, 220 WIS. 165; 263 N.W. 650.  A FIDUCIARY WHO
REPRESENTS SECURITY HOLDERS IN A REORGANIZATION MAY NOT PERFECT HIS
CLAIM TO COMPENSATION BY INSISTING THAT, ALTHOUGH HE HAD CONFLICTING
INTERESTS, HE SERVED HIS SEVERAL MASTERS EQUALLY WELL OR THAT HIS
PRIMARY LOYALTY WAS NOT WEAKENED BY THE PULL OF HIS SECONDARY ONE. 
ONLY STRICT ADHERENCE TO THESE EQUITABLE PRINCIPLES CAN KEEP THE
STANDARD OF CONDUCT FOR FIDUCIARIES "AT A LEVEL HIGHER THAN THAT
TRODDEN BY THE CROWD."  SEE MR. JUSTICE CARDOZO IN MEINHARD V. SALMON,
249 N.Y. 458, 464; 164 N.E. 545. 

THE FINDINGS OF THE DISTRICT COURT THAT THESE CLAIMANTS REPRESENTED
CONFLICTING INTERESTS ARE AMPLY SUPPORTED BY THE EVIDENCE. 

SOME DISCRIMINATION, HOWEVER, IS NECESSARY IN APPLYING THE FOREGOING
RULE TO CLAIMS FOR EXPENSES.  REIMBURSEMENT FOR "PROPER COSTS AND
EXPENSES INCURRED IN CONNECTION WITH THE ADMINISTRATION" OF THE ESTATE
MAY BE ALLOWED N14.  THE RULE DISALLOWING COMPENSATION BECAUSE OF
CONFLICTING INTERESTS MAY BE EQUALLY EFFECTIVE TO BAR RECOVERY OF THE
EXPENDITURES MADE BY A CLAIMANT SUBJECT TO CONFLICTING INTERESTS. 
PLAINLY EXPENDITURES ARE NOT "PROPER" WITHIN THE MEANING OF THE ACT
WHERE THE CLAIMANT CANNOT SHOW THAT THEY WERE MADE IN FURTHERANCE OF A
PROJECT EXCLUSIVELY DEVOTED TO THE INTERESTS OF THOSE WHOM THE CLAIMANT
PURPORTED TO REPRESENT.  ON THE OTHER HAND, THOSE EXPENDITURES NORMALLY
SHOULD BE ALLOWED WHICH HAVE CLEARLY BENEFITED THE ESTATE.  SCOTT ON
TRUSTS (1939), SEC. 245.1.  THUS WHERE TAXES HAVE BEEN PAID, NEEDFUL
REPAIRS OR ADDITIONS TO THE PROPERTY HAVE BEEN MADE, OR THE LIKE,
EQUITY DOES NOT PERMIT THE ESTATE TO RETAIN THOSE BENEFITS WITHOUT
PAYING FOR THEM.  SUCH CLASSIFICATION OF EXPENSES, AT TIMES DIFFICULT,
RESTS IN THE SOUND DISCRETION OF THE BANKRUPTCY COURT.  THE DISTRICT
COURT DREW NO SUCH DISTINCTION BUT PROCEEDED ON THE THEORY THAT
REIMBURSEMENT FOR ALL EXPENSES MUST BE DENIED.  BUT IT IS NOT APPARENT
THAT ALL OF THEM FALL WITHIN THE PROHIBITED CATEGORY. 

THE OTHER POINTS RAISED BY PETITIONER ARE SO PLAINLY WITHOUT MERIT
THAT THEY DO NOT WARRANT MENTION. 

FOR THE REASONS STATED WE REVERSE THE JUDGMENT OF THE CIRCUIT COURT
OF APPEALS AND REMAND THE CAUSE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  THIS REORGANIZATION STARTED WITH FORECLOSURE PROCEEDINGS IN THE
ILLINOIS STATE COURT AND LATER WAS TRANSFERRED TO THE UNITED STATES
DISTRICT COURT UPON THE FILING OF PETITIONS UNDER SEC. 77B OF THE
BANKRUPTCY ACT.  PURSUANT TO SEC. 276(C)(2) OF THE CHANDLER ACT, THE
BANKRUPTCY COURT MADE THAT CHAPTER APPLICABLE TO THE ALLOWANCE OF THESE
CLAIMS.  THE CLAIMS UNDER REVIEW COVER NOT ONLY THE PROCEEDINGS UNDER
SEC. 77B BUT ALSO THE EARLIER STATE COURT PROCEEDINGS.  THOUGH SOME OF
THE ALLOWANCES HERE IN ISSUE APPARENTLY HAD BEEN FIXED BY THE STATE
COURT PRIOR TO THE TRANSFER OF THE PROCEEDINGS TO BANKRUPTCY,
RESPONDENTS AGREED TO SUBMIT THE CLAIMS DE NOVO TO THE DISTRICT COURT. 

FN2  THE TWO CASES RAISE THE SAME QUESTION.  ONE REPRESENTS AN APPEAL
TO THE CIRCUIT COURT OF APPEALS AS OF RIGHT; THE OTHER AN APPEAL WITH
LEAVE.  THEY WERE TAKEN PRIOR TO OUR DECISION IN DICKINSON INDUSTRIAL
SITE V. COWAN, 309 U.S. 382.  AND SEE RECONSTRUCTION FINANCE CORP. V.
PRUDENCE SECURITIES ADVISORY GROUP, 311 U.S. 579. 

FN3  NOT THEN THE TRUSTEE UNDER THE INDENTURE. 

FN4  A THIRD MEMBER WAS ALSO A DISTRIBUTOR OF THE BONDS WHEN THEY
WERE PUBLICLY OFFERED. 

FN5  THIS UNDERWRITER - CODY TRUST CO. - WENT INTO RECEIVERSHIP IN
DECEMBER, 1933, THE GRANADA BONDHOLDERS' COMMITTEE HAVING BEEN FORMED
IN APRIL, 1933.  THE DISTRICT COURT FOUND THAT NOMINEES OF CODY TRUST
CO. OPERATED THE PROPERTY UNTIL JANUARY, 1934. 

THE REORGANIZATION BEGAN WITH A FORECLOSURE PROCEEDING IN THE STATE
COURT.  THE INDENTURE TRUSTEE, PREDECESSOR OF RESPONDENT TRUSTEE, LATER
TOOK POSSESSION AND EMPLOYED A SO-CALLED AGENT AT $50 PER MONTH "TO
KEEP CODY TRUST COMPANY INFORMED AS TO THE STATUS FROM TIME TO TIME." 

FN6  CERTAIN PHASES OF THE LITIGATION INVOLVING THIS QUESTION ARE
REVEALED IN THUMA V. GRANADA HOTEL CORP., 269 ILL. APP. 484; WENSTRAND
V. PICK & CO., 38 F.2D 25; IN RE GRANADA APARTMENTS, INC., 104 F.2D
528. 

SO FAR AS APPEARS NO EFFORT WAS MADE IN THIS REORGANIZATION TO ASSERT
ANY CLAIM AGAINST THE UNDERWRITERS. 

FN7  THAT DIVISION HAD HANDLED OVER 400 REORGANIZATIONS, HAVING BEEN
FORMED TO ACT IN CONNECTION WITH DEFAULTED BOND ISSUES UNDERWRITTEN BY
CHICAGO TRUST CO. AND CENTRAL TRUST CO. OF ILLINOIS.  CHICAGO TRUST CO.
WAS ONE OF THE UNDERWRITERS OF THE GRANADA BONDS. 

FN8  UTTER, PROBLEMS OF TRUSTEES UNDER DEFAULTED BOND ISSUES, 56
TRUST COMPANIES 653(1933); LITTLETON, ADMINISTRATION PROBLEMS UNDER
CORPORATE TRUSTEESHIP, ID., 335, 338. 

FN9  UTTER, OP. CIT. SUPRA NOTE 8, PP. 656-657.  THAT ANTAGONISM WAS
BEST ILLUSTRATED IN FORECLOSURE REORGANIZATIONS WHERE THE MINORITY WAS
NOT BOUND TO ACCEPT NEW SECURITIES BUT COULD INSIST ON CASH.  SEE
WEINER, CONFLICTING FUNCTIONS OF THE UPSET PRICE IN A CORPORATE
REORGANIZATION, 27 COL. L. REV. 132.  IN THE INSTANT CASE THE
REORGANIZATION PROCEEDING WAS IN THE STATE COURT FROM JUNE, 1930 WHEN A
RECEIVER UNDER THE SECOND MORTGAGE WAS APPOINTED TO MAY, 1937 WHEN
PETITIONS UNDER SEC. 77B OF THE BANKRUPTCY ACT WERE APPROVED.  FOR AN
EARLIER AND UNSUCCESSFUL ATTEMPT TO PLACE THIS COMPANY UNDER SEC. 77B
SEE TUTTLE V. HARRIS, 297 U.S. 225.  RESPONDENT-INDENTURE TRUSTEE
BECAME SUCH IN JANUARY, 1935.  IT WAS IN POSSESSION FROM THEN UNTIL
MAY, 1937.    FN10  CHICAGO TRUST CO., WHICH WAS ALSO THE ORIGINAL
INDENTURE TRUSTEE. 

FN11  RESPONDENT-COUNSEL DENIES THAT IT ACTED AS COUNSEL IN THAT
PARTICULAR TRANSACTION OR KNEW OF THE ALLEGED MISREPRESENTATION IN THE
PROSPECTUS AT THE TIME, AND ASSERTS THAT IT DID NOT LEARN OF THE
CONTENTS OF THE CIRCULAR UNTIL A QUESTION WAS RAISED CONCERNING IT
DURING THIS REORGANIZATION PROCEEDING.  WE ACCEPT ITS VERSION OF THE
FACTS. 

FN12  SEC. 221(4) PROVIDES:  "THE JUDGE SHALL CONFIRM A PLAN IF
SATISFIED THAT  ...  ALL PAYMENTS MADE OR PROMISED BY THE DEBTOR OR BY
A CORPORATION ISSUING SECURITIES OR ACQUIRING PROPERTY UNDER THE PLAN
OR BY ANY OTHER PERSON, FOR SERVICES AND FOR COSTS AND EXPENSES IN, OR
IN CONNECTION WITH, THE PROCEEDING OR IN CONNECTION WITH THE PLAN AND
INCIDENT TO THE REORGANIZATION, HAVE BEEN FULLY DISCLOSED TO THE JUDGE
AND ARE REASONABLE OR, IF TO BE FIXED AFTER CONFIRMATION OF THE PLAN,
WILL BE SUBJECT TO THE APPROVAL OF THE JUDGE; ...  " 

FN13  INDENTURE TRUSTEES, COMMITTEES, AND THEIR ATTORNEYS ARE
INCLUDED AMONG THOSE TO WHOM THE COMPENSATION MAY BE ALLOWED.  SEC.
242. 

FN14  SEC. 242. 
..END :






















MD. CASUALTY CO. V. PACIFIC CO., 312 U.S. 270 


NO. 194.  ARGUED JANUARY 9, 1941.  - DECIDED FEBRUARY 3, 1941.  - 111
F.2D 214, REVERSED. 


1.  TO SUPPORT A SUIT UNDER THE DECLARATORY JUDGMENT ACT, THE FACTS
MUST SHOW A SUBSTANTIAL CONTROVERSY, REAL AND IMMEDIATE BETWEEN PARTIES
HAVING ADVERSE LEGAL INTERESTS.  P. 273. 

2.  AN INSURER ISSUED A POLICY COVERING LIABILITY OF THE INSURED FOR
PERSONAL INJURIES CAUSED BY AUTOMOBILES "HIRED BY THE INSURED."  UNDER
THE POLICY AND THE STATE LAW, AN INJURED PARTY COULD KEEP THE POLICY
FROM LAPSING BY SERVING NOTICE OF THE ACCIDENT, ETC., IF THE INSURED
FAILED TO DO SO; AND, IF SUCCESSFUL IN OBTAINING JUDGMENT AGAINST THE
INSURED, COULD ENFORCE IT BY SUPPLEMENTARY PROCEEDINGS AGAINST THE
INSURER.  THE INSURED HAVING BEEN SUED IN THE STATE COURT FOR PERSONAL
INJURIES SUSTAINED IN A COLLISION BETWEEN A TRUCK DRIVEN BY AN EMPLOYEE
OF THE INSURED AND THE AUTOMOBILE OF THE CLAIMANT, THE INSURER BROUGHT
SUIT IN THE FEDERAL COURT AGAINST THE INSURED AND THE CLAIMANT,
ALLEGING THAT THE TRUCK WAS NOT "HIRED BY THE INSURED" AND CONTENDING
THAT IT WAS NOT BOUND TO DEFEND THE STATE COURT SUIT OR TO INDEMNIFY
THE INSURED.  HELD: 

(1)  THAT DIVERSE CITIZENSHIP AND JURISDICTIONAL AMOUNT BEING
PRESENT, THE INSURER'S SUIT INVOLVED AN "ACTUAL CONTROVERSY" COGNIZABLE
UNDER THE DECLARATORY JUDGMENT ACT.  P. 273. 

(2)  AN INJUNCTION TO RESTRAIN THE PROCEEDINGS IN THE STATE COURT IS
PROHIBITED BY SEC. 265 OF THE JUDICIAL CODE.  P. 274. 

MARYLAND CASUALTY CO. V. PACIFIC COAL & OIL CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 311 U.S. 625, TO REVIEW THE AFFIRMANCE OF A DECREE IN A
SUIT FOR A DECLARATORY JUDGMENT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONER ISSUED A CONVENTIONAL LIABILITY POLICY TO THE INSURED, THE
PACIFIC COAL & OIL CO., IN WHICH IT AGREED TO INDEMNIFY THE INSURED FOR
ANY SUMS THE LATTER MIGHT BE REQUIRED TO PAY TO THIRD PARTIES FOR
INJURIES TO PERSON AND PROPERTY CAUSED BY AUTOMOBILES HIRED BY THE
INSURED.  PETITIONER ALSO AGREED THAT IT WOULD DEFEND ANY ACTION
COVERED BY THE POLICY WHICH WAS BROUGHT AGAINST THE INSURED TO RECOVER
DAMAGES FOR SUCH INJURIES. 

WHILE THE POLICY WAS IN FORCE, A COLLISION OCCURRED BETWEEN AN
AUTOMOBILE DRIVEN BY RESPONDENT ORTECA AND A TRUCK DRIVEN BY AN
EMPLOYEE OF THE INSURED.  ORTECA BROUGHT AN ACTION IN AN OHIO STATE
COURT AGAINST THE INSURED TO RECOVER DAMAGES RESULTING FROM INJURIES
SUSTAINED IN THIS COLLISION.  APPARENTLY THIS ACTION HAS NOT PROCEEDED
TO JUDGMENT. 

PETITIONER THEN BROUGHT THIS ACTION AGAINST THE INSURED AND ORTECA. 
ITS COMPLAINT SET FORTH THE FACTS DETAILED ABOVE AND FURTHER ALLEGED
THAT AT THE TIME OF THE COLLISION THE EMPLOYEE OF THE INSURED WAS
DRIVING A TRUCK SOLD TO HIM BY THE INSURED ON A CONDITIONAL SALES
CONTRACT.  PETITIONER CLAIMED THAT THIS TRUCK WAS NOT ONE "HIRED BY THE
INSURED" AND HENCE THAT IT WAS NOT LIABLE TO DEFEND THE ACTION BY
ORTECA AGAINST THE INSURED OR TO INDEMNIFY THE LATTER IF ORTECA
PREVAILED.  IT SOUGHT A DECLARATORY JUDGMENT TO THIS EFFECT AGAINST THE
INSURED AND ORTECA, AND A TEMPORARY INJUNCTION RESTRAINING THE
PROCEEDINGS IN THE STATE COURT PENDING FINAL JUDGMENT IN THIS SUIT. 

ORTECA DEMURRED TO THE COMPLAINT ON THE GROUND THAT IT DID NOT STATE
A CAUSE OF ACTION AGAINST HIM.  THE DISTRICT COURT SUSTAINED HIS
DEMURRER AND THE CIRCUIT COURT OF APPEALS AFFIRMED.  111 F.2D 214.  WE
GRANTED CERTIORARI, 311 U.S. 625, TO RESOLVE THE CONFLICT WITH THE
DECISIONS OF OTHER CIRCUIT COURTS OF APPEALS CITED IN THE NOTE.  FN1 

THE QUESTION IS WHETHER PETITIONER'S ALLEGATIONS ARE SUFFICIENT TO
ENTITLE IT TO THE DECLARATORY RELIEF PRAYED IN ITS COMPLAINT.  THIS
RAISES THE QUESTION WHETHER THERE IS AN "ACTUAL CONTROVERSY" WITHIN THE
MEANING OF THE DECLARATORY JUDGMENT ACT (JUDICIAL CODE SEC. 274D, 28
U.S.C. SEC. 400), SINCE THE DISTRICT COURT IS WITHOUT POWER TO GRANT
DECLARATORY RELIEF UNLESS SUCH A CONTROVERSY EXISTS.  NASHVILLE, C. &
ST. L. RY. CO. V. WALLACE, 288 U.S. 249, 259; U.S.C.A. CONSTITUTION,
ART. III, SEC. 2. 

THE DIFFERENCE BETWEEN AN ABSTRACT QUESTION AND A "CONTROVERSY"
CONTEMPLATED BY THE DECLARATORY JUDGMENT ACT IS NECESSARILY ONE OF
DEGREE, AND IT WOULD BE DIFFICULT, IF IT WOULD BE POSSIBLE, TO FASHION
A PRECISE TEST FOR DETERMINING IN EVERY CASE WHETHER THERE IS SUCH A
CONTROVERSY.  BASICALLY, THE QUESTION IN EACH CASE IS WHETHER THE FACTS
ALLEGED, UNDER ALL THE CIRCUMSTANCES, SHOW THAT THERE IS A SUBSTANTIAL
CONTROVERSY, BETWEEN PARTIES HAVING ADVERSE LEGAL INTERESTS, OF
SUFFICIENT IMMEDIACY AND REALITY TO WARRANT THE ISSUANCE OF A
DECLARATORY JUDGMENT.  SEE AETNA LIFE INS. CO. V. HAWORTH, 300 U.S.
227, 239-242.  IT IS IMMATERIAL THAT FREQUENTLY, IN THE DECLARATORY
JUDGMENT SUIT, THE POSITIONS OF THE PARTIES IN THE CONVENTIONAL SUIT
ARE REVERSED; THE INQUIRY IS THE SAME IN EITHER CASE.  NASHVILLE, C. &
ST. L. RY. CO. V. WALLACE, SUPRA, P. 261. 

THAT THE COMPLAINT IN THE INSTANT CASE PRESENTS SUCH A CONTROVERSY IS
PLAIN.  ORTECA IS NOW SEEKING A JUDGMENT AGAINST THE INSURED IN AN
ACTION WHICH THE LATTER CLAIMS IS COVERED BY THE POLICY, AND SECS. 9510
3 AND 9510-4 OF THE OHIO CODE (PAGE'S OHIO GENERAL CODE, VOL. 6, SECS.
9510-3, 9510-4) GIVE ORTECA A STATUTORY RIGHT TO PROCEED AGAINST
PETITIONER BY SUPPLEMENTAL PROCESS AND ACTION IF HE OBTAINS A FINAL
JUDGMENT AGAINST THE INSURED WHICH THE LATTER DOES NOT SATISFY WITHIN
THIRTY DAYS AFTER ITS RENDITION.  COMPARE MARYLAND CASUALTY CO. V.
UNITED CORPORATION, 111 F.2D 443, 446; CENTRAL SURETY & INSURANCE CORP.
V. NORRIS, 103 F.2D 116, 117; U.S. FIDELITY & GUARANTY CO. V. PIERSON,
97 F.2D 560, 562.  MOREOVER, ORTECA MAY PERFORM THE CONDITIONS OF THE
POLICY ISSUED TO THE INSURED REQUIRING NOTICE OF THE ACCIDENT, NOTICE
OF SUIT, ETC., IN ORDER TO PREVENT LAPSE OF THE POLICY THROUGH FAILURE
OF THE INSURED TO PERFORM SUCH CONDITIONS.  HARTFORD ACCIDENT &
INDEMNITY CO. V. RANDALL, 125 OHIO ST. 581; 183 N.E. 433; SEE ALSO,
LIND V. STATE AUTOMOBILE MUTUAL INSURANCE ASSN., 128 OHIO ST. 1; 190
N.E. 138; STATE AUTOMOBILE MUTUAL INSURANCE ASSN. V. FRIEDMAN, 122 OHIO
ST. 334; 171 N.E. 591. 

IT IS CLEAR THAT THERE IS AN ACTUAL CONTROVERSY BETWEEN PETITIONER
AND THE INSURED.  COMPARE AETNA LIFE INS. CO. V. HAWORTH, SUPRA.  IF WE
HELD CONTRARIWISE AS TO ORTECA BECAUSE, AS TO HIM, THE CONTROVERSY WERE
YET TOO REMOTE, IT IS POSSIBLE THAT OPPOSITE INTERPRETATIONS OF THE
POLICY MIGHT BE ANNOUNCED BY THE FEDERAL AND STATE COURTS.  FOR THE
FEDERAL COURT, IN A JUDGMENT NOT BINDING ON ORTECA MIGHT DETERMINE THAT
PETITIONER WAS NOT OBLIGATED UNDER THE POLICY, WHILE THE STATE COURT,
IN A SUPPLEMENTAL PROCEEDING BY ORTECA AGAINST PETITIONER, MIGHT
CONCLUDE OTHERWISE.  COMPARE CENTRAL SURETY & INSURANCE CORP. V.
NORRIS, SUPRA, P. 117; AETNA CASUALTY & SURETY CO. V. YEATTS, 99 F.2D
665, 670. 

THUS WE HOLD THAT THERE IS AN ACTUAL CONTROVERSY BETWEEN PETITIONER
AND ORTECA, AND HENCE, THAT PETITIONER'S COMPLAINT STATES A CAUSE OF
ACTION AGAINST THE LATTER.  HOWEVER, OUR DECISION DOES NOT AUTHORIZE
ISSUANCE OF THE INJUNCTION PRAYED BY PETITIONER.  JUDICIAL CODE SEC.
265, 28 U.S.C. SEC. 379; SEE CENTRAL SURETY & INSURANCE CORP. V.
NORRIS, SUPRA, P. 117; MARYLAND CASUALTY CO. V. CONSUMERS FINANCE
SERVICE, INC., 101 F.2D 514, 516; AETNA CASUALTY & SURETY CO. V.
YEATTS, SUPRA, P. 670. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

FN1  MARYLAND CASUALTY CO. V. UNITED CORPORATION, 111 F.2D 443;
CENTRAL SURETY & INSURANCE CORP. V. NORRIS, 103 F.2D 116; MARYLAND
CASUALTY CO. V. CONSUMERS FINANCE SERVICE, INC., 101 F.2D 514; AETNA
CASUALTY & SURETY CO. V. YEATTS, 99 F.2D 665; U.S. FIDELITY & GUARANTY
CO. V. PIERSON, 97 F.2D 560; ASSOCIATED INDEMNITY CORP. V. MANNING, 92
F.2D 168.  SEE ALSO, EMPLOYERS' LIABILITY ASSURANCE CORP. V. RYAN, 109
F.2D 690; C.E. CARNES & CO. V. EMPLOYERS' LIABILITY ASSURANCE CORP.,
101 F.2D 739; STANDARD ACCIDENT INSURANCE CO. V. ALEXANDER, INC., 23
F.SUPP.  807; U.S. FIDELITY & GUARANTY CO. V. PIERSON, 21 F.SUPP.  678;
BUILDERS & MANUFACTURERS MUTUAL CASUALTY CO. V. PAQUETTE, 21 F.SUPP. 
858; TRAVELERS INSURANCE CO. V. YOUNG, 18 F.SUPP.  450; COMMERCIAL
CASUALTY INSURANCE CO. V. HUMPHREY, 13 F.SUPP.  174. 

MR. JUSTICE BLACK DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :








FROST & CO. V. MINES CORP., 312 U.S. 38 


NO. 78.  ARGUED DECEMBER 18, 1940.  - DECIDED JANUARY 20, 1941.  - 61
IDAHO 21 - 98 P.2D 965, REVERSED. 


1.  THE JUDGMENT OF THE STATE SUPREME COURT IN THIS CASE WAS BASED
WHOLLY UPON AN INTERPRETATION OF THE SECURITIES ACT OF 1933 AND IS
REVIEWABLE HERE.  P. 40. 

2.  A CONTRACT OF A CORPORATION GRANTING AN OPTION TO PURCHASE AT A
STIPULATED PRICE A SPECIFIED NUMBER OF SHARES OF ITS TREASURY STOCK,
HELD - ASSUMING THAT A "PUBLIC OFFERING" WAS INVOLVED - NOT
UNENFORCEABLE ALTHOUGH THE OPTIONED SHARES WERE NOT REGISTERED UNDER
THE SECURITIES ACT OF 1933 AS AMENDED.  P. 42. 

A.C. FROST & CO. V. COEUR D'ALENE MINES CORP. 

CERTIORARI OF THE SUPREME COURT OF IDAHO. 

CERTIORARI, 311 U.S. 624, TO REVIEW A JUDGMENT DENYING RECOVERY UPON
A CONTRACT ON THE GROUND OF INVALIDITY UNDER THE SECURITIES ACT OF
1933. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

SEPTEMBER 10, 1934, RESPONDENT, BY A WRITTEN CONTRACT, GAVE TO ONE
BOLAND "THE SOLE AND EXCLUSIVE RIGHT AND OPTION TO PURCHASE THE WHOLE
OR ANY PART" OF 1,300,000 SHARES OF ITS TREASURY STOCK AT 10 CENTS PER
SHARE, PAYMENTS TO BE MADE IN INSTALLMENTS.  HE IMMEDIATELY ASSIGNED
THE CONTRACT TO PETITIONER, FROST & COMPANY.  APRIL 26, 1935, THIS WAS
MODIFIED AS TO TIME AND AMOUNT OF PAYMENTS.  MAY 15, 1935, ANOTHER
MODIFICATION AUTHORIZED RESPONDENT TO SELL OPTIONED STOCK AND CREDIT
PETITIONER WITH THE PROCEEDS ABOVE 10 CENTS PER SHARE. 

PETITIONER OBTAINED 165,000 SHARES AND PAID THEREFOR $16,500. 
RESPONDENT SOLD MANY AT PRICES ABOVE 10 CENTS AND GAVE PETITIONER
CREDITS AMOUNTING TO $16,306.  NONE OF THE CORPORATION'S SHARES WERE
REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED, C. 38, 48 STAT.
74; C. 404, 48 STAT. 881, 905.  AND UPON THAT ALLEGED GROUND, IN JUNE
1935, RESPONDENT REFUSED DELIVERY OF THE REMAINING OPTIONED ONES -
855,150. 

BY COMPLAINT FILED IN AN IDAHO STATE COURT, MARCH 26, 1937,
PETITIONER CHARGED THAT RESPONDENT HAD REPUDIATED THE OPTION AND ASKED
JUDGMENT FOR $16,306, ALSO DAMAGES CONSEQUENT UPON BREACH OF THE
AGREEMENT. 

THE ANSWER DENIED LIABILITY UPON THE GROUND, AMONG OTHERS, THAT THE
CONTRACT "WAS ENTERED INTO IN VIOLATION OF LAW, AND PARTICULARLY IN
VIOLATION OF  ...  THE SECURITY ACT OF 1933, APPROVED MAY 27, 1933, AND
ACTS OF CONGRESS AMENDATORY THEREOF AND SUPPLEMENTAL THERETO, AND
PARTICULARLY IN THIS THAT THE 1,300,000 SHARES OF STOCK ATTEMPTED TO BE
SOLD BY THE DEFENDANT TO THE SAID W. J. BOLAND UNDER SAID INSTRUMENT
WAS THE TREASURY STOCK OF THE DEFENDANT CORPORATION, AND HAD NEVER BEEN
REGISTERED FOR SALE UNDER SAID NATIONAL SECURITIES ACT, OR ACTS
AMENDATORY THEREOF OR SUPPLEMENTAL THERETO, WITH THE SECURITIES AND
EXCHANGE COMMISSION, AND THAT THE SAID W. J. BOLAND KNEW THESE FACTS
AND KNEW THAT THE DEFENDANT COULD NOT LEGALLY SELL TO HIM THE SAID
STOCK OR ANY PART THEREOF; AND DEFENDANT ALLEGES THAT SAID CONTRACT WAS
VOID AB INITIO." 

THE CAUSE WAS TRIED WITHOUT A JURY.  SOME EVIDENCE TENDED TO SHOW
THAT BOTH PARTIES PURPOSED THAT PETITIONER WOULD SELL ACQUIRED SHARES
TO SUNDRY PARTIES THROUGH USE OF THE MAILS AND INSTRUMENTALITIES OF
INTERSTATE COMMERCE. 

THE TRIAL COURT HELD THE OPTION UNENFORCEABLE SO FAR AS NOT EXECUTED
BECAUSE CONTRARY TO LAW; THAT PETITIONER COULD RECOVER THE $16,306
CREDIT; ALSO THAT THERE COULD BE NO RECOVERY FOR RESPONDENT'S FAILURE
TO DELIVER. 

UPON APPEAL, THE SUPREME COURT RULED THAT, AS INTENDED, PETITIONER
SOLD ACQUIRED SHARES TO SUNDRY PURCHASERS, DIRECTED DELIVERIES TO
BROKERS FOR RESALE AND "THAT ALL STOCK OFFERED FOR SALE AMOUNTED TO
PUBLIC OFFERINGS AND THAT INTERSTATE MEANS OF COMMUNICATION AND
TRANSPORTATION WERE USED IN CONNECTION THEREWITH."  CONSEQUENTLY IT
DECLARED THE AGREEMENT VOID AB INITIO.  FURTHER THAT THE PARTIES MUST
BE LEFT IN THE SITUATION WHERE FOUND.  IT ORDERED FINAL JUDGMENT FOR
RESPONDENT.  61 IDAHO 21; 98 P.2D 965, 967.  THIS ACTION WAS BASED
WHOLLY ON INTERPRETATION AND APPLICATION OF THE SECURITIES ACT.  THUS A
FEDERAL QUESTION AROSE WHICH DEMANDS DETERMINATION.  AWOTIN V. ATLAS
EXCHANGE BANK, 295 U.S. 209, 213. 

THE ESSENTIAL PURPOSE OF THE STATUTE IS TO PROTECT INVESTORS BY
REQUIRING PUBLICATION OF CERTAIN INFORMATION CONCERNING SECURITIES
BEFORE OFFERED FOR SALE. 

SOME OF ITS RELEVANT PROVISIONS ARE IN THE MARGIN.  FN1 

PETITIONER MAINTAINS THAT THE RECORD SHOWS THERE WAS NO PUBLIC
OFFERING OF OPTIONED STOCK WITHIN THE MEANING OF THE STATUTE AND SEC.
4(1) IS CONTROLLING.  CONSIDERING THE INTERPRETATION WHICH WE ADOPT IT
IS UNNECESSARY NOW TO PASS UPON THE POINT.  THE SUPREME COURT OF IDAHO
THOUGHT THE EVIDENCE SUFFICIENT TO SHOW A PUBLIC OFFERING AND, FOR
PRESENT PURPOSES ONLY, WE MAY ACCEPT THAT VIEW. 

NO PROVISION OF THE ACT DECLARES THAT IN THE ABSENCE OF REGISTRATION,
CONTRACTS IN CONTEMPLATION OF OR HAVING RELATION TO A PUBLIC OFFERING
SHALL BE VOID.  IF THERE HAS BEEN NO REGISTRATION, IT PENALIZES THE
DOING OF CERTAIN DESIGNATED THINGS - USE OF THE MAILS,
INSTRUMENTALITIES OF INTERSTATE COMMERCE, ETC.  IT ALSO DECLARES THAT
THOSE WHO PARTICIPATE IN PROSCRIBED ACTION SHALL BECOME LIABLE TO
PURCHASERS OF THE SECURITIES "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."  THESE ARE THE SANCTIONS WHICH
CONGRESS HAS DEFINITELY PROVIDED IN ORDER TO INSURE OBEDIENCE TO THE
STATUTE.  WHEN INVOKED THEY MUST BE GIVEN EFFECT. 

ALTHOUGH THE CHALLENGED CONTRACT BEARS NO EVIDENCE OF CRIMINALITY AND
IS FAIR UPON ITS FACE, WE ARE ASKED TO APPLY A SANCTION BEYOND THAT
SPECIFIED BY DECLARING IT NULL AND VOID BECAUSE OF RELATIONSHIP TO A
PUBLIC OFFERING.  THE BASIS FOR THIS DEMAND IS A SUPPOSED FEDERAL
PUBLIC POLICY WHICH REQUIRES SUCH ANNULMENT IN ORDER TO SECURE
OBSERVANCE, EFFECTUATE THE LEGISLATIVE PURPOSE AND PREVENT NOXIOUS
CONSEQUENCES. 

COURTS HAVE OFTEN ADDED A SANCTION TO THOSE PRESCRIBED FOR AN OFFENSE
CREATED BY STATUTE WHERE THE CIRCUMSTANCES FAIRLY INDICATED THIS WOULD
FURTHER THE ESSENTIAL PURPOSE OF THE ENACTMENT; BUT WE THINK WHERE THE
CONTRARY DEFINITELY APPEARS - ACTUAL HINDRANCE INDEED OF THAT PURPOSE -
NO SUCH ADDITION IS PERMISSIBLE.  THE LATTER SITUATION IS BEYOND THE
REASON WHICH SUPPORTS THE DOCTRINE NOW RELIED UPON. 

HERE THE CLEAR LEGISLATIVE PURPOSE WAS PROTECTION OF INNOCENT
PURCHASERS OF SECURITIES.  THEY ARE GIVEN DEFINITE REMEDIES
INCONSISTENT WITH THE IDEA THAT EVERY CONTRACT HAVING RELATION TO SALES
OF UNREGISTERED SHARES IS ABSOLUTELY VOID; AND TO ACCEPT THE CONCLUSION
REACHED BY THE SUPREME COURT BELOW WOULD PROBABLY SERIOUSLY HINDER
RATHER THAN AID THE REAL PURPOSE OF THE STATUTE. 

THE SECURITIES & EXCHANGE COMMISSION, BY PERMISSION, HAS FILED A
MEMORANDUM POINTING OUT HOW THIS PURPOSE MAY BE THWARTED AND THE
INVESTING PUBLIC INJURED IF THE RULING BELOW IS APPROVED.  AN EXCERPT
FROM THIS IS COPIED BELOW.  FN2 

THE RULE THAT CONTRACTS IN CONTRAVENTION OF PUBLIC POLICY ARE NOT
ENFORCEABLE CAME UNDER DISCUSSION IN STEELE V. DRUMMOND, 275 U.S. 199
AND TWIN CITY CO. V. HARDING GLASS CO., 283 U.S. 353, 356, 357.  IN THE
LATTER THE OPINION DECLARES, THE PRINCIPLE "SHOULD BE APPLIED WITH
CAUTION AND ONLY IN CASES PLAINLY WITHIN THE REASONS ON WHICH THAT
DOCTRINE RESTS.  IT IS ONLY BECAUSE OF THE DOMINANT PUBLIC INTEREST
THAT ONE WHO, LIKE RESPONDENT, HAS HAD THE BENEFIT OF PERFORMANCE BY
THE OTHER PARTY WILL BE PERMITTED TO AVOID HIS OWN PROMISE." 

THE PROTEAN BASIS UNDERLYING THIS DOCTRINE HAS OFTEN BEEN STATED THUS
- NO ONE CAN LAWFULLY DO THAT WHICH TENDS TO INJURE THE PUBLIC OR IS
DETRIMENTAL TO THE PUBLIC GOOD.  IF IT DEFINITELY APPEARS THAT
ENFORCEMENT OF A CONTRACT WILL NOT BE FOLLOWED BY INJURIOUS RESULTS,
GENERALLY, AT LEAST, WHAT THE PARTIES HAVE AGREED TO OUGHT NOT TO BE
STRUCK DOWN. 

KIMEN V. ATLAS EXCHANGE BANK, 295 U.S. 215 AND DIETRICK V. GREANEY,
309 U.S. 190, POINTED OUT THAT WHETHER A CONTRACT SHALL BE ENFORCED
REQUIRED CONSIDERATION OF THE BROAD PURPOSES OF RELEVANT STATUTES AND
THE PROBABLE EFFECT UPON THIS.  IN BOTH CAUSES THE END WHICH CONGRESS
INTENDED TO ACCOMPLISH WAS TREATED AS THE CONTROLLING FACTOR. 

THE SUPREME COURT OF IDAHO, WE THINK, MISINTERPRETED AND IMPROPERLY
APPLIED THE SECURITIES ACT.  ITS JUDGMENT MUST BE REVERSED. 

FN1  SECURITIES ACT OF 1933 AS AMENDED, 48 STAT. 74, 78, IN 1934, 48
STAT. 881, 905-6. 

"SEC. 2.  (15 U.S.C. SEC. 77B).  WHEN USED IN THIS TITLE, UNLESS THE
CONTEXT OTHERWISE REQUIRES - 

"(3)  THE TERM 'SALE,' 'SELL,' 'OFFER TO SELL,' OR 'OFFER FOR SALE'
SHALL INCLUDE EVERY CONTRACT OF SALE OR DISPOSITION OF, ATTEMPT OR
OFFER TO DISPOSE OF, OR SOLICITATION OF AN OFFER TO BUY, A SECURITY OR
INTEREST IN A SECURITY, FOR VALUE; EXCEPT THAT SUCH TERMS SHALL NOT
INCLUDE PRELIMINARY NEGOTIATIONS OR AGREEMENTS BETWEEN AN ISSUER AND
ANY UNDERWRITER. 

"SEC. 4  (15 U.S.C., SEC. 77D).  THE PROVISIONS OF SECTION 5 SHALL
NOT 

"SEC. 4.  (15 U.S.C., SEC. 77D).  THE PROVISIONS OF SECTION 5 SHALL
NOT APPLY TO ANY OF THE FOLLOWING TRANSACTIONS: 

"(1)  TRANSACTIONS BY ANY PERSON OTHER THAN AN ISSUER, UNDERWRITER,
OR DEALER; TRANSACTIONS BY AN ISSUER NOT INVOLVING ANY PUBLIC OFFERING;
...  " 

"SEC. 5.  (15 U.S.C., SEC. 77E).  (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. 

"(B)  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 CARRY OR
TRANSMIT ANY PROSPECTUS RELATING TO ANY SECURITY REGISTERED UNDER THIS
TITLE, UNLESS SUCH PROSPECTUS MEETS THE REQUIREMENTS OF SECTION 10; OR 

"(2)  TO CARRY OR CAUSE TO BE CARRIED THROUGH THE MAILS OR IN
INTERSTATE COMMERCE ANY SUCH SECURITY FOR THE PURPOSE OF SALE OR FOR
DELIVERY AFTER SALE, UNLESS ACCOMPANIED OR PRECEDED BY A PROSPECTUS
THAT MEETS THE REQUIREMENTS OF SECTION 10." 

SPECIFIED PERSONS WHO, IN SOME WAY, MAKE, PERMIT OR USE AN UNTRUE
STATEMENT IN A REGISTRATION STATEMENT, ETC. 

"SEC. 12.  (15 U.S.C., SEC. 77L).  ANY PERSON WHO - 

"(1)  SELLS A SECURITY IN VIOLATION OF SECTION 5, OR 

"(2)  SELLS A SECURITY (WHETHER OR NOT EXEMPTED BY THE PROVISIONS OF
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." 

"SEC. 24.  (15 U.S.C., SEC. 77X).  ANY PERSON WHO WILLFULLY VIOLATES
ANY OF THE PROVISIONS OF THIS TITLE, OR THE RULES AND REGULATIONS
PROMULGATED BY THE COMMISSION UNDER AUTHORITY THEREOF, OR ANY PERSON
WHO WILLFULLY IN A REGISTRATION STATEMENT FILED UNDER THIS TITLE, MAKES
ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITS TO STATE ANY MATERIAL
FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING, SHALL UPON CONVICTION BE FINED NOT MORE THAN
$5,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH." 

FN2  EXCERPT FROM MEMORANDUM OF THE SECURITIES AND EXCHANGE
COMMISSION:  "THE FUNDAMENTAL PURPOSE OF THE SECURITIES ACT OF 1933, AS
WE STATED UNDER POINT A, IS TO PROTECT THE INVESTING PUBLIC.  THE ACT
FURNISHES ONE FORM OF PROTECTION BY INSISTING THAT 'EVERY ISSUE OF NEW
SECURITIES TO BE SOLD IN INTERSTATE COMMERCE SHALL BE ACCOMPANIED BY
FULL PUBLICITY AND INFORMATION' TO THE END THAT 'NO ESSENTIALLY
IMPORTANT ELEMENT ATTENDING THE ISSUE SHALL BE CONCEALED FROM THE
BUYING PUBLIC.'  MESSAGE OF THE PRESIDENT TO THE CONGRESS, MARCH 29,
1933.  IT IS OBVIOUS THAT THE PURPOSES OF THE ACT WOULD BE DEFEATED BY
ANY JUDICIAL DOCTRINE WHICH PREVENTED THE ISSUING CORPORATION FROM
RECOVERING FROM THE UNDERWRITER, AND PUTTING TO THE INTENDED USE IN ITS
BUSINESS, THE MONEY INVESTED BY THE PUBLIC IN THE ISSUER.  AND IT WOULD
BE ANOMALOUS TO REST SUCH AN INJURY TO THE INVESTORS UPON THE FACT THAT
THE TRANSACTION IN WHICH THE SECURITIES WERE DISTRIBUTED VIOLATED THE
ACT, WHICH WAS DESIGNED TO PROTECT THOSE INVESTORS.  COMPARE SECTIONS
11 AND 12 WHICH, BY IMPLICATION, PERMIT A PURCHASER TO AFFIRM A SALE IN
VIOLATION OF THE ACT.  IT CAN SCARCELY BE ASSUMED THAT ANY COURT WOULD
RENDER SUCH AN UNFORTUNATE DECISION.  YET THIS WOULD BE THE LOGICAL
CONSEQUENCE OF APPLYING LITERALLY THE BROAD LANGUAGE USED BY THE
SUPREME COURT OF IDAHO IN STATING THE PROPOSITION THAT THE COURTS WILL
NOT LEND THEIR AID TO THE PARTIES TO A CONTRACT THAT IS PROHIBITED BY
LAW OR IS AGAINST PUBLIC POLICY.    "IT APPEARS TO US TO BE ENTIRELY
IMMATERIAL WHETHER IN SUCH A CASE, THE AGREEMENT IS LABELLED 'VOID' OR
THE PARTIES ARE HELD TO BE 'IN PARI DELICTO.'  THERE, LABELS, AS OFTEN
IS THE CASE, MERELY STATE THE CONCLUSION REACHED, BUT DO NOT AID IN
SOLUTION OF THE PROBLEM.  THE ULTIMATE ISSUE IS WHETHER THE RESULT IN
THE PARTICULAR CASE WOULD EFFECTUATE OR FRUSTRATE THE PURPOSES OF THE
ACT." 

MR. JUSTICE STONE CONCURS IN THE RESULT.    MR. JUSTICE DOUGLAS TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THIS CAUSE. 
..END :


















BEAL V. MISSOURI PACIFIC R. CO., 312 U.S. 45 


NO. 72.  ARGUED DECEMBER 17, 1940.  - DECIDED JANUARY 20, 1941.  - 108
F.2D 897, REVERSED. 


1.  FEDERAL COURTS OF EQUITY SHOULD NOT INTERFERE WITH THE PROCESSES
OF THE CRIMINAL LAW IN STATE COURTS OR DETERMINE QUESTIONS OF CRIMINAL
LIABILITY UNDER THOSE LAWS, UNLESS IN MOST EXCEPTIONAL CIRCUMSTANCES
AND UPON CLEAR SHOWING THAT AN INJUNCTION IS NECESSARY IN ORDER TO
PREVENT AN IRREPARABLE LOSS.  P. 50. 

2.  A SUIT BY A RAILROAD COMPANY TO RESTRAIN STATE OFFICERS FROM
PROSECUTING UNDER A STATE "FULL TRAIN CREW" LAW, THE PLAINTIFF ALLEGING
THAT ITS TRAINS ARE MANNED IN ACCORDANCE WITH THE STATUTE WHEN RIGHTLY
CONSTRUED, BUT THAT IT STANDS IN DANGER OF IRREPARABLE INJURY FROM
MULTIPLICITY OF PROSECUTIONS AND POSSIBLE FINES, SHOULD NOT BE
ENTERTAINED BY A FEDERAL COURT OF EQUITY WHEN IT APPEARS AS A FACT THAT
ONLY A SINGLE TEST PROSECUTION IS IN CONTEMPLATION, INVOLVING ONLY ONE
ALLEGED VIOLATION FOR THE PURPOSE OF OBTAINING A CONSTRUCTION OF THE
STATUTE BY THE STATE COURTS.  P. 50. 

3.  UPON A MOTION FOR JUDGMENT ON THE PLEADINGS DENIALS AND
ALLEGATIONS OF THE ANSWER WHICH ARE WELL PLEADED MUST BE TAKEN AS
TRUE.  P. 51. 

BEAL, COUNTY ATTORNEY OF DOUGLAS COUNTY, NEBRASKA, ET AL. V. MISSOURI
PACIFIC RAILROAD CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 311 U.S. 623, TO REVIEW THE AFFIRMANCE OF A DECREE
ENJOINING THE PRESENT PETITIONERS, STATE PROSECUTING OFFICERS, FROM
PROSECUTING THE RAILROAD COMPANY'S AGENTS FOR ALLEGED CRIMINAL
VIOLATIONS OF A STATE "FULL TRAIN CREW" LAW. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER RESPONDENT, PLAINTIFF IN THE DISTRICT COURT
BELOW, HAS ESTABLISHED A CAUSE OF ACTION IN EQUITY ENTITLING IT TO A
DECREE ENJOINING PETITIONERS, THE ATTORNEY GENERAL OF NEBRASKA AND
OTHER STATE OFFICERS FROM PROSECUTING RESPONDENT'S AGENTS AND OFFICERS
IN THE STATE COURTS FOR CRIMINAL VIOLATIONS OF THE NEBRASKA FULL TRAIN
CREW LAW, SEC. 74-519 COMP. STAT. OF NEBRASKA, 1929. 

THE STATUTE MAKES IT UNLAWFUL FOR ANY RAILROAD IN NEBRASKA TO OPERATE
ANY PASSENGER TRAIN OF MORE THAN FIVE CARS "WITH A CREW CONSISTING OF
LESS THAN ONE ENGINEER, ONE FIREMAN, ONE CONDUCTOR, ONE BRAKEMAN AND
ONE FLAGMAN."  PASSENGER TRAINS OF FIVE CARS OR LESS ARE REQUIRED TO BE
OPERATED WITH A LIKE CREW, EXCEPT THAT ONLY "ONE BRAKEMAN OR FLAGMAN"
IS REQUIRED INSTEAD OF THE ONE BRAKEMAN AND ONE FLAGMAN REQUIRED IN THE
CASE OF TRAINS OF MORE THAN FIVE CARS.  BY SEC. 74-522 OFFICERS OR
AGENTS OF RAILROADS DISPATCHING TRAINS IN VIOLATION OF THE STATUTE ARE
GUILTY OF A MISDEMEANOR PUNISHABLE BY FINE OF NOT LESS THAN $100 NOR
MORE THAN $1,000 FOR EACH OFFENSE, AND THE RAILROAD IS MADE LIABLE FOR
ANY DAMAGE CAUSED BY VIOLATIONS. 

RESPONDENT'S BILL OF COMPLAINT INVOKED THE JURISDICTION OF THE
DISTRICT COURT ON GROUNDS OF DIVERSITY OF CITIZENSHIP.  THE FACTS
ALLEGED, SO FAR AS NOW MATERIAL, ARE AS FOLLOWS.  RESPONDENT OPERATES
TWO TRAINS IN NEBRASKA, ON WHICH IT ASSIGNS FOR THE PERFORMANCE OF THE
DUTIES OF A BRAKEMAN OR FLAGMAN REQUIRED BY THE STATUTE, COLORED
EMPLOYEES WHO ARE FULLY QUALIFIED TO PERFORM AND DO PERFORM THOSE
DUTIES, BUT WHO ARE DESIGNATED AS "BRAKEMEN-PORTERS" AND PAID LOWER
WAGES THAN ARE RESPONDENT'S WHITE "BRAKEMEN." 

ON COMPLAINT LODGED WITH THE STATE RAILWAY COMMISSION BY AN OFFICER
OF THE BROTHERHOOD OF RAILROAD TRAINMEN, IT WAS ALLEGED THAT RESPONDENT
VIOLATED THE STATUTE, BY EMPLOYING BRAKEMEN-PORTERS TO PERFORM THE
SERVICES OF BRAKEMEN OR FLAGMEN.  THE COMMISSION TWICE DISMISSED THE
COMPLAINT, BUT UPON REHEARING IT RULED THAT ALTHOUGH RESPONDENT'S
BRAKEMEN-PORTERS, IN ADDITION TO THE DUTIES OF BRAKEMEN, WHEN
PERFORMANCE OF SUCH DUTIES PERMIT, RENDER SOME SERVICES AS PORTERS,
THEY COMPETENTLY PERFORM THE DUTIES TO WHICH THEY ARE ASSIGNED, NAMELY
THOSE OF BRAKEMEN OR FLAGMEN, AND THAT RESPONDENT'S TRAINS, SO FAR AS
THE PUBLIC SAFETY IS CONCERNED, ARE ADEQUATELY MANNED.  THE COMMISSION
DECLINED TO PASS UPON THE QUESTION WHETHER THEIR EMPLOYMENT IN THE
MANNER ALLEGED COMPLIED WITH THE FULL TRAIN CREW LAW OF THE STATE AND
ORDERED THAT THE RECORDS IN THE CASE BE MADE AVAILABLE TO THE STATE
ATTORNEY GENERAL FOR HIS USE, IF SO ADVISED, IN PROSECUTING RESPONDENT
FOR VIOLATION OF ANY CRIMINAL STATUTE OF THE STATE. 

THE BILL OF COMPLAINT ALSO ALLEGES THAT EMPLOYMENT OF WHITE BRAKEMEN
FOR THE SERVICES NOW PERFORMED BY RESPONDENT'S BRAKEMEN-PORTERS WILL
COMPEL IT TO PAY AN INCREASE OF WAGES IN EXCESS OF THE JURISDICTIONAL
AMOUNT, AND THAT AS EACH TRAIN MOVEMENT INVOLVES AN ALLEGED VIOLATION
OF THE STATUTE, NUMEROUS PROSECUTIONS FOR VIOLATIONS, WHICH PETITIONERS
THREATEN, WILL RESULT IN IMPOSING ON RESPONDENT THE BURDEN OF MANY
LITIGATIONS IN THE STATE CRIMINAL COURTS.  SUCH PROSECUTIONS, IF
SUCCESSFUL, IT IS ALLEGED, WILL RESULT IN THE IMPOSITION OF AGGREGATE
FINES IN EXCESS OF $1,000,000 A YEAR.  THE RELIEF PRAYED IS THAT THE
THREATENED PROSECUTIONS BE DECLARED TO BE UNAUTHORIZED BY THE STATUTE,
AND THAT PETITIONERS BE ENJOINED FROM INTERFERING WITH THE OPERATION OF
RESPONDENT'S TRAINS THROUGH CRIMINAL PROSECUTION OR OTHERWISE. 

AFTER DENIAL BY THE DISTRICT COURT OF PETITIONERS' MOTION TO DISMISS
THE BILL OF COMPLAINT FOR WANT OF EQUITY, PETITIONERS ANSWERED DENYING
AMONG OTHERS THE ALLEGATIONS THAT RESPONDENT IS THREATENED WITH
MULTIPLICITY OF CRIMINAL SUITS OR THAT PETITIONERS INTENDED TO PROCEED
WITH PROSECUTIONS FOR VIOLATION OF THE STATUTE, EXCEPT AS SPECIFICALLY
STATED IN THE ANSWER.  THE ANSWER SETS UP AFFIRMATIVELY THAT THE
ATTORNEY GENERAL HAS UNDER CONSIDERATION THE QUESTION OF RESPONDENT'S
COMPLIANCE WITH THE STATUTE, AND IN THE EVENT THAT HE SHOULD DETERMINE
THAT IT IS "NECESSARY AND PROPER TO DO SO" IN ORDER TO OBTAIN A
JUDICIAL DETERMINATION OF THE QUESTION, HE WOULD CAUSE A SINGLE TEST
SUIT TO BE INSTITUTED IN THE STATE COURTS FOR SOME ONE ALLEGED
VIOLATION OF THE ACT BY RESPONDENT, SO CONDUCTED AS TO CAUSE A MINIMUM
OF FINANCIAL EXPENSE TO RESPONDENT AND WITHOUT SEEKING TO INFLICT
FINANCIAL PENALTIES OR LOSS ON RESPONDENT PRIOR TO A FINAL
DETERMINATION OF THE SUIT IN THE STATE COURTS. 

THE DISTRICT COURT, WITHOUT TRIAL OF ANY ISSUE OF FACT, GAVE ITS
DECREE FOR RESPONDENT, ON THE PLEADINGS, FOR AN INJUNCTION AS PRAYED. 
THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED.  108 F.2D 897. 
WE GRANTED CERTIORARI, 311 U.S. 623, ON A PETITION WHICH CHALLENGED THE
EQUITY JURISDICTION OF THE DISTRICT COURT TO ENJOIN, IN THE
CIRCUMSTANCES, A CRIMINAL PROCEEDING IN THE STATE COURTS, THE QUESTION
BEING OF PUBLIC IMPORTANCE SINCE IT INVOLVES THE APPROPRIATE
RELATIONSHIP OF THE FEDERAL TO THE STATE COURTS. 

THE COURT OF APPEALS, CONSTRUING THE STATUTE, HELD THAT THE CREWS ON
RESPONDENT'S TRAINS CONFORM TO THE STATUTORY REQUIREMENTS; THAT
CRIMINAL PROSECUTION OF RESPONDENT'S OFFICERS IS UNAUTHORIZED BY THE
ACT AND UNLAWFUL.  IT SUPPORTED THE EXERCISE OF THE EQUITY POWERS OF
THE COURT TO RESTRAIN THE PROSECUTIONS ON THE GROUND THAT THE ATTEMPTED
ENFORCEMENT OF THE STATUTE AS CONSTRUED BY PETITIONERS WOULD SUBJECT
RESPONDENT TO A MULTIPLICITY OF SUCH PROSECUTIONS AND TO THE RISK, IF
PETITIONERS' CONSTRUCTION OF THE STATUTE SHOULD BE SUSTAINED, THAT
FINES OR PENALTIES AGGREGATING A LARGE AMOUNT WOULD BE IMPOSED. 

IT IS A FAMILIAR RULE THAT COURTS OF EQUITY DO NOT ORDINARILY
RESTRAIN CRIMINAL PROSECUTIONS.  IN RE SAWYER, 124 U.S. 200, 211; DAVIS
& FARNUM MFG. CO. V. LOS ANGELES, 189 U.S. 207; HYGRADE PROVISION CO.
V. SHERMAN, 266 U.S. 497, 500.  NO CITIZEN OR MEMBER OF THE COMMUNITY
IS IMMUNE FROM PROSECUTION, IN GOOD FAITH, FOR HIS ALLEGED CRIMINAL
ACTS.  THE IMMINENCE OF SUCH A PROSECUTION EVEN THOUGH ALLEGED TO BE
UNAUTHORIZED AND HENCE UNLAWFUL IS NOT ALONE GROUND FOR RELIEF IN
EQUITY WHICH EXERTS ITS EXTRAORDINARY POWERS ONLY TO PREVENT
IRREPARABLE INJURY TO THE PLAINTIFF WHO SEEKS ITS AID.  TERRACE V.
THOMPSON, 263 U.S. 197, 214; PACKARD V. BANTON, 264 U.S. 140, 143;
TYSON V. BANTON, 273 U.S. 418, 428; CLINE V. FRINK DAIRY CO., 274 U.S.
445, 452. 

THIS IS ESPECIALLY THE CASE WHERE THE ONLY THREATENED ACTION IS THE
PROSECUTION IN THE STATE COURTS BY STATE OFFICERS OF AN ALLEGED
VIOLATION OF STATE LAW, WITH THE RESULTING FINAL AND AUTHORITATIVE
DETERMINATION OF THE DISPUTED QUESTION WHETHER THE ACT COMPLAINED OF IS
LAWFUL OR UNLAWFUL.  HARKRADER V. WADLEY, 172 U.S. 148; SPIELMAN MOTOR
CO. V. DODGE, 295 U.S. 89, 95.  THE FEDERAL COURTS ARE WITHOUT
JURISDICTION TO TRY ALLEGED CRIMINAL VIOLATIONS OF STATE STATUTES.  THE
STATE COURTS ARE THE FINAL ARBITERS OF THEIR MEANING AND APPROPRIATE
APPLICATION, SUBJECT ONLY TO REVIEW BY THIS COURT IF SUCH CONSTRUCTION
OR APPLICATION IS APPROPRIATELY CHALLENGED ON CONSTITUTIONAL GROUNDS. 
HYGRADE PROVISION CO. V. SHERMAN, SUPRA; FENNER V. BOYKIN, 271 U.S.
240. 

HENCE INTERFERENCE WITH THE PROCESSES OF THE CRIMINAL LAW IN STATE
COURTS, IN WHOSE CONTROL THEY ARE LODGED BY THE CONSTITUTION, AND THE
DETERMINATION OF QUESTIONS OF CRIMINAL LIABILITY UNDER STATE LAW BY
FEDERAL COURTS OF EQUITY, CAN BE JUSTIFIED ONLY IN MOST EXCEPTIONAL
CIRCUMSTANCES, AND UPON CLEAR SHOWING THAT AN INJUNCTION IS NECESSARY
IN ORDER TO PREVENT IRREPARABLE INJURY.  CF. HYGRADE PROVISION CO. V.
SHERMAN, SUPRA; CLINE V. FRINK DAIRY CO., SUPRA; SPIELMAN MOTOR CO. V.
DODGE, SUPRA.  AND IN THE EXERCISE OF THE SOUND DISCRETION, WHICH
GUIDES THE DETERMINATION OF COURTS OF EQUITY, SCRUPULOUS REGARD MUST BE
HAD FOR THE RIGHTFUL INDEPENDENCE OF STATE GOVERNMENTS AND A REMEDY
INFRINGING THAT INDEPENDENCE WHICH MIGHT OTHERWISE BE GIVEN SHOULD BE
WITHHELD IF SOUGHT ON SLIGHT OR INCONSEQUENTIAL GROUNDS.  DI GIOVANNI
V. CAMDEN INSURANCE ASSN., 296 U.S. 64, 73, AND CASES CITED. 

HERE THE COURT BELOW FOUND DANGER OF IRREPARABLE INJURY IN THE
THREATENED MULTIPLICITY OF PROSECUTIONS AND RISK THAT THE AGGREGATE
FINES WHICH MIGHT BE IMPOSED WOULD BE VERY LARGE.  BUT WHETHER MORE
THAN ONE CRIMINAL PROSECUTION IS THREATENED WAS BY THE PLEADINGS MADE
AN ISSUE OF FACT WHICH THE DISTRICT COURT DID NOT RESOLVE.  IF IT HAD
FOUND AFTER A HEARING, AS THE ANSWER ALLEGES, THAT ONLY A SINGLE SUIT
IS CONTEMPLATED, WE COULD NOT SAY THAT ANY SUCH IRREPARABLE INJURY IS
THREATENED AS WOULD JUSTIFY STAYING THE PROSECUTION AND WITHDRAWING THE
DETERMINATION OF THE LEGAL QUESTION FROM THE STATE COURTS, WHOSE
APPOINTED FUNCTION IS TO DECIDE IT.  BOISE ARTESIAN WATER CO. V. BOISE
CITY, 213 U.S. 276, 287; SPIELMAN MOTOR CO. V. DODGE, SUPRA, 96. 

IF ITS DECISION SHOULD BE FAVORABLE TO RESPONDENT NO REASON IS SHOWN
FOR ANTICIPATING FURTHER PROSECUTIONS.  IF IT WERE ADVERSE, PENALTIES
IN LARGE AMOUNT, IT IS TRUE, MIGHT BE INCURRED, BUT THEY MAY WELL BE
THE CONSEQUENCE OF VIOLATIONS OF STATE LAW.  NO QUESTION IS HERE
PRESENTED OF THE CONSTITUTIONAL VALIDITY OF THE STATUTE BECAUSE THE
PENALTIES WHICH IT INFLICTS ARE SO GREAT AS TO PREVENT RECOURSE TO THE
COURTS FOR THE ADJUDICATION OF RESPONDENT'S RIGHTS UNDER IT.  SEE EX
PARTE YOUNG, 209 U.S. 123, 144; MISSOURI PACIFIC RY. CO. V. TUCKER, 230
U.S. 340, 349. 

IT DOES NOT APPEAR THAT ANY MOTION WAS MADE BY THE PARTIES FOR
JUDGMENT ON THE PLEADINGS.  BUT THE RECORD SHOWS THAT THE TRIAL COURT
ENTERED THE DECREE IN RESPONDENT'S FAVOR ON ITS OWN MOTION.  UPON SUCH
A MOTION DENIALS AND ALLEGATIONS OF THE ANSWER WHICH ARE WELL PLEADED
MUST BE TAKEN AS TRUE.  SO TAKEN THE DECREE FOR RESPONDENT CANNOT BE
SUSTAINED AND MUST BE REVERSED.  THE MAJORITY OF THE COURT ARE OF
OPINION  FN1  THAT IN VIEW OF THE STATE OF THE RECORD AND CERTAIN
CONCESSIONS MADE BY COUNSEL ON THE ARGUMENT HERE ANY FURTHER HEARING OF
THE ISSUE OF IRREPARABLE INJURY TO RESPONDENT FROM A THREATENED
MULTIPLICITY OF SUITS HAS BEEN WAIVED.  THE REVERSAL WILL ACCORDINGLY
BE WITH INSTRUCTIONS TO THE DISTRICT COURT TO DISMISS THE BILL OF
COMPLAINT.  IT IS SO ORDERED. 

FN1  THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS AND MR. JUSTICE STONE
ARE OF OPINION THAT THE CASE SHOULD BE REMANDED TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS. 
..END :




















HINES V. DAVIDOWITZ, 312 U.S. 52 


NO. 22.  ARGUED DECEMBER 10, 11, 1940.  - DECIDED JANUARY 20, 1941.  -
30 F.SUPP.  470, AFFIRMED. 


1.  APPLICABLE LEGISLATION ENACTED WHILE THE CASE WAS PENDING ON
APPEAL WILL BE ENFORCED BY THE APPELLATE COURT.  P. 60. 

2.  WHATEVER POWER A STATE MAY HAVE TO RESTRICT, LIMIT, REGULATE AND
REGISTER ALIENS AS A DISTINCT GROUP, IS SUBJECT TO THE NATIONAL
LEGISLATIVE AND TREATY-MAKING POWERS.  P. 68. 

3.  THE FEDERAL ALIEN REGISTRATION ACT OF 1940 FORMS, WITH THE
IMMIGRATION AND NATURALIZATION LAWS, A COMPREHENSIVE AND INTEGRATED
SCHEME FOR THE REGULATION OF ALIENS, AND PRECLUDES THE ENFORCEMENT OF
STATE ALIEN REGISTRATION ACTS SUCH AS THAT ADOPTED BY PENNSYLVANIA IN
1939.  P. 74. 

THE PENNSYLVANIA ACT REQUIRES EVERY ALIEN 18 YEARS OR OVER, WITH
CERTAIN EXCEPTIONS, TO REGISTER ONCE EACH YEAR; PROVIDE SUCH
INFORMATION AS IS REQUIRED BY THE STATUTE, PLUS ANY "OTHER INFORMATION
AND DETAILS" THAT THE DEPARTMENT OF LABOR AND INDUSTRY MAY DIRECT; PAY
$1 AS AN ANNUAL REGISTRATION FEE; RECEIVE AN ALIEN IDENTIFICATION CARD
AND CARRY IT AT ALL TIMES; SHOW THE CARD WHENEVER IT MAY BE DEMANDED BY
ANY POLICE OFFICER OR AGENT OF THE DEPARTMENT OF LABOR AND INDUSTRY;
AND EXHIBIT THE CARD AS A CONDITION PRECEDENT TO REGISTERING A MOTOR
VEHICLE IN HIS NAME OR OBTAINING A LICENSE TO OPERATE ONE.  THE
DEPARTMENT OF LABOR AND INDUSTRY IS CHARGED WITH THE DUTIES OF
CLASSIFYING THE REGISTRATIONS FOR "THE PURPOSE OF READY REFERENCE," AND
FURNISHING A COPY OF THE CLASSIFICATION TO THE PENNSYLVANIA MOTOR
POLICE.  NON-EXEMPT ALIENS WHO FAIL TO REGISTER ARE SUBJECT TO A FINE
OF NOT MORE THAN $100 OR IMPRISONMENT FOR NOT MORE THAN 60 DAYS, OR
BOTH.  FOR FAILURE TO CARRY AN IDENTIFICATION CARD OR FOR FAILURE TO
SHOW IT UPON PROPER DEMAND, THE PUNISHMENT IS A FINE OF NOT MORE THAN
$10, OR IMPRISONMENT FOR NOT MORE THAN 10 DAYS, OR BOTH.  P. 59. 

THE FEDERAL ACT PROVIDES FOR A SINGLE REGISTRATION OF ALIENS 14 YEARS
OF AGE AND OVER; DETAILED INFORMATION SPECIFIED BY THE ACT, PLUS "SUCH
ADDITIONAL MATTERS AS MAY BE PRESCRIBED BY THE COMMISSIONER, WITH THE
APPROVAL OF THE ATTORNEY GENERAL"; FINGERPRINTING OF ALL REGISTRANTS;
AND SECRECY OF THE FEDERAL FILES, WHICH CAN BE "MADE AVAILABLE ONLY TO
SUCH PERSONS OR AGENCIES AS MAY BE DESIGNATED BY THE COMMISSIONER, WITH
THE APPROVAL OF THE ATTORNEY GENERAL."  NO REQUIREMENT THAT ALIENS
CARRY A REGISTRATION CARD TO BE EXHIBITED TO POLICE OR OTHERS IS
EMBODIED IN THE LAW, AND ONLY THE WILFUL FAILURE TO REGISTER IS MADE A
CRIMINAL OFFENSE; PUNISHMENT IS FIXED AT A FINE OF NOT MORE THAN $1000,
IMPRISONMENT FOR NOT MORE THAN 6 MONTHS, OR BOTH.  P. 60. 

HINES, SECRETARY OF LABOR AND INDUSTRY OF PENNSYLVANIA, ET AL. V.
DAVIDOWITZ ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES WHICH
RESTRAINED OFFICIALS OF THE COMMONWEALTH OF PENNSYLVANIA FROM ENFORCING
AGAINST AN ALIEN PROVISIONS OF THE PENNSYLVANIA ALIEN REGISTRATION ACT
OF 1939. 

THE ACT DOES NOT ENCROACH UPON A FIELD RESERVED TO FEDERAL ACTION. 
THE RIGHT OF THE FEDERAL GOVERNMENT TO CONTROL IMMIGRATION,
NATURALIZATION OR INTERSTATE AND FOREIGN COMMERCE IS NOT IMPAIRED BY
THE REGISTRATION OF ALIENS RESIDENT WITHIN THE STATE, REQUIRED BY THE
PENNSYLVANIA LAW. 

IT DOES NOT INFRINGE THE POWER TO REGULATE INTERSTATE AND FOREIGN
COMMERCE NOR INTERFERE WITH POWER OVER IMMIGRATION AND NATURALIZATION. 

IN GENERAL, THE STATES MAY EXERCISE ANY POWER POSSESSED BY THEM PRIOR
TO THE ADOPTION OF THE CONSTITUTION, UNLESS THE EXERCISE OF SUCH POWER
IS EXPRESSLY OR BY NECESSARY IMPLICATION PROHIBITED THEREBY, OR
INTERFERES WITH THE EXERCISE OF SOME POWER DELEGATED TO THE UNITED
STATES.  CONGRESS HAS NO GENERAL POWER TO ENACT POLICE REGULATIONS
OPERATIVE WITHIN THE TERRITORIAL LIMITS OF THE STATE.  THAT POWER HAS
BEEN LEFT WITH THE INDIVIDUAL STATES AND CAN NOT BE TAKEN FROM THEM
EITHER WHOLLY OR IN PART.  UNITED STATES V. CRUIKSHANK, 92 U.S. 542. 
THE POWER OF THE STATE IN THIS FIELD IS UNQUALIFIED AND EXCLUSIVE, SO
LONG AS ITS REGULATIONS DO NOT INVADE THE SPHERE OF NATIONAL
SOVEREIGNTY, OBSTRUCT OR IMPEDE THE EXERCISE OF ANY AUTHORITY WHICH THE
CONSTITUTION HAS CONFIDED TO THE NATION, OR DEPRIVE A CITIZEN OF RIGHTS
GUARANTEED TO HIM THEREUNDER. 

THE PENNSYLVANIA ACT SIMPLY REQUIRES THAT CERTAIN ALIENS, WHO HAVE
NOT DECLARED THEIR INTENTION TO BECOME CITIZENS, REGISTER, PAY $1.00
FOR SUCH REGISTRATION, AND CARRY A REGISTRATION CARD. 

THE STATE ENACTED THIS LAW IN ORDER TO SECURE INFORMATION IN REGARD
TO ALIENS WITHIN ITS OWN BOUNDARIES.  THE PENALTIES AND THE CARRYING OF
THE CARD ARE NECESSARY IN ORDER TO ENFORCE THE LAW AND TO PREVENT
EVASION. 

COMPLIANCE BY AN ALIEN WITH THE STATE STATUTE DOES NOT INTERFERE IN
ANY WAY WITH HIS COMPLIANCE WITH THE NATURALIZATION STATUTE.  IF HE
FILES HIS DECLARATION OF INTENTION, HE IS NO LONGER SUBJECT TO THE
STATE ACT, EVEN IF HE DOES NOT COMPLETE HIS APPLICATION. 

IT IS OBVIOUS THAT THERE IS NO INCONSISTENCY AND NO CONFLICT BETWEEN
THE ALIEN REGISTERING WITH THE STATE AND ALSO WITH THE UNITED STATES. 
LEGISLATION UNDER THE POLICE POWER OF THE STATE WILL NOT BE STRICKEN
DOWN UNLESS IT PLAINLY AND PALPABLY CONFLICTS WITH SOME AUTHORITY
GRANTED TO THE FEDERAL GOVERNMENT.  PLUMLEY V. MASSACHUSETTS, 155 U.S.
461, 479, 480. 

A STATE MAY PASS A LAW WHICH AIDS OR COOPERATES WITH THE FEDERAL
GOVERNMENT IN THE EXERCISE OF ITS FEDERAL POWER.  HALTER V. NEBRASKA,
205 U.S. 34; GILBERT V. MINNESOTA, 254 U.S. 325. 

APPELLANTS CONCEDE THAT IMMIGRATION AND NATURALIZATION UNDER ART. I,
SEC. 8, CL. 3, OF THE CONSTITUTION ARE WITHIN THE EXCLUSIVE POWER OF
CONGRESS; BUT THIS PROVISION DOES NOT PLACE ENTIRE JURISDICTION OVER
ALIENS UNDER CONGRESS, AND THE STATES UNDER THE POLICE POWER CAN PLACE
RESTRICTIONS AND LIMITATIONS UPON ALIENS.  EVEN IF CONTROL OF ALIENS
WERE WITHIN THE EXCLUSIVE POWER OF CONGRESS, THE STATE STILL HAS THE
RIGHT, AS A LOCAL POLICE MEASURE, TO REGULATE ALIENS RESIDENT WITHIN
ITS BORDERS, SO LONG AS SUCH REGULATIONS ARE NOT REPUGNANT TO OR
INCONSISTENT WITH FEDERAL ENACTMENTS. 

STATE INSOLVENCY LAWS, LIQUOR LAWS, INSPECTION LAWS AND QUARANTINE
LAWS HAVE BEEN UPHELD.  SEE INTERNATIONAL SHOE CO. V. PINKUS, 278 U.S.
261; POTTS V. SMITH MFG. CO., 25 PA. SUPER.  CT. 206. 

IT SHOULD BE NOTED THAT PENNSYLVANIA PASSED ITS LAW TO REGISTER
ALIENS ON JUNE 21, 1939, BUT IT WAS NOT UNTIL JUNE 28, 1940, THAT THE
FEDERAL ACT WAS PASSED.  THE PENNSYLVANIA ACT DOES NOT RESTRICT ALIENS
COMING INTO THE STATE NOR EXPEL THEM FROM THE STATE.  UNTIL THE FEDERAL
ACT, THERE WAS NO CONFLICT WITH THE GENERAL POWER DELEGATED TO THE
FEDERAL GOVERNMENT COVERING THE SUBJECT OF NATURALIZATION AND
IMMIGRATION.  SEE ALSO NEW YORK, N.H., & H.R. CO. V. NEW YORK, 165 U.S.
628. 

THERE IS NO QUESTION ABOUT THE RIGHT OF THE STATE TO ACT IN THE
ABSENCE OF FEDERAL LEGISLATION.  THE ALIEN REGISTRATION ACT WAS
CONSTITUTIONAL WHEN PASSED, SINCE IT DOES NOT IMPINGE ON ANY POWER
GRANTED TO CONGRESS, FOR IT DOES NOT RELATE TO THE ENTRANCE OF ALIENS
INTO THE STATE, NOR TO THEIR DEPORTATION; NOR DOES IT INTERFERE IN ANY
WAY WITH NATURALIZATION OR WITH FOREIGN OR INTERSTATE RELATIONS.  IT
REPRESENTS SIMPLY A LOCAL POLICE MEASURE TO OBTAIN INFORMATION
REGARDING ALIENS RESIDENT WITHIN THE STATE'S BORDERS FOR THE PROTECTION
OF ITS CITIZENS, LAW-ABIDING ALIENS AND PROPERTY.  THE ONLY QUESTION IS
WHETHER THE STATE ACT IS IN ABEYANCE OR WHETHER THE STATE AND FEDERAL
GOVERNMENTS HAVE CONCURRENT JURISDICTION TO REGISTER ALIENS FOR THE
PROTECTION OF INHABITANTS AND PROPERTY. 

THE ACT DOES NOT DENY EQUAL PROTECTION OF THE LAWS TO ALIENS. 

THE ACT IS DISCRIMINATORY, UNREASONABLE, INCONSISTENT AND
CAPRICIOUS.  THE ACT ENCROACHES UPON A FIELD RESERVED TO FEDERAL
ACTION.  PEOPLE V. BAUM, 251 MICH. 187; TRUAX V. RAICH, 239 U.S. 33,
39; ARROWSMITH V. VOORHIES, 55 F.2D 310; HENDERSON V. MAYOR OF NEW
YORK, 92 U.S. 259; CHY LUNG V. FREEMAN, 92 U.S. 275. 

THE ACT DENIES EQUAL PROTECTION OF THE LAWS TO ALIENS IN
PENNSYLVANIA. 

THE FEDERAL ACT OF 1940 HAS SUPERSEDED THE PENNSYLVANIA STATUTE.  THE
ONE IS A COMPREHENSIVE LAW ON THE SUBJECT OF THE REGISTRATION AND
IDENTIFICATION OF ALIENS; THE OTHER, RATHER THAN COMPLEMENTING THE
FEDERAL LAW, COVERS ALMOST THE SAME GROUND. 

THE ENACTMENT BY CONGRESS OF THIS COMPREHENSIVE AND INTEGRATED ALIEN
REGISTRATION SYSTEM PRECLUDES THE EXERCISE OF ANY CONCURRENT AUTHORITY
BY THE STATES.  PEOPLE V. COMPAGNIE GENERALE TRANSATLANTIQUE, 107 U.S.
59, 63; REID V. COLORADO, 187 U.S. 137, 146-147; EASTON V. IOWA, 188
U.S. 220, 231, 238; OREGON-WASHINGTON R. & NAV. CO. V. WASHINGTON, 270
U.S. 87, 99-101; ERIE R. CO. V. NEW YORK, 233 U.S. 671; ADAMS EXPRESS
CO. V. CRONINGER, 226 U.S. 491, 505-506; NORTHERN PACIFIC RY. CO. V.
WASHINGTON, 222 U.S. 370; NEW YORK CENTRAL R. CO. V. WINFIELD, 244 U.S.
147; SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 55; LINDGREN V.
UNITED STATES, 281 U.S. 38, 45-46; NEW YORK CENTRAL & HUDSON RIVER R.
V. HUDSON COUNTY, 227 U.S. 248, 263-264; SOUTHERN RY. CO. V. RAILROAD
COMMISSION, 236 U.S. 439; INTERNATIONAL SHOE CO. V. PINKUS, 278 U.S.
261, 265-266; GAVIT, THE COMMERCE CLAUSE, SEC. 117.  IT IS IMMATERIAL
THAT THE OBLIGATIONS OF THE ALIEN UNDER THE TWO ENACTMENTS ARE NOT
NECESSARILY INCOMPATIBLE.  CHARLESTON & WESTERN CAROLINA RY. CO. V.
VARNVILLE FURNITURE CO., 237 U.S. 597, 604; NEW YORK CENTRAL & HUDSON
R. CO. V. TONSELLITO, 244 U.S. 360; SOUTHERN RY. CO. V. RAILROAD
COMMISSION, 246 U.S. 439, 446-448; PENNSYLVANIA R. CO. V. PUBLIC
SERVICE COMM'N, 250 U.S. 566, 569; MISSOURI PACIFIC R. CO. V. PORTER,
273 U.S. 341, 346; GILVARY V. CUYAHOGA VALLEY RY., 292 U.S. 57, 60-61;
CF., GULF, C. & S.F. RY. V. HEFLEY, 158 U.S. 98, 103.  AND IT IS
LIKEWISE IMMATERIAL THAT THE STATE LAW WAS ENACTED BEFORE THE FEDERAL
LAW.  SOUTHERN RY. CO. V. RAILROAD COMM'N, SUPRA, 446, 447; PEOPLE V.
COMPAGNIE GENERALE TRANSATLANTIQUE, 107 U.S. 59, 63; PORT RICHMOND
FERRY CO. V. BOARD OF CHOSEN FREEHOLDERS, 234 U.S. 317, 330; SOUTHERN
RY. CO. V. REID, 222 U.S. 424. 

THE CASE OF GILBERT V. MINNESOTA, 254 U.S. 325, CAN HAVE NO
APPLICATION TO A SITUATION LIKE THAT HERE PRESENTED WHERE ENFORCEMENT
OF THE FEDERAL STATUTE REQUIRES CONTINUOUS CENTRALIZED ADMINISTRATION
AND ANY INDEPENDENT AND UNCOORDINATED EFFORT BY STATE OFFICIALS TO AID
IN ITS ENFORCEMENT COULD ONLY RESULT IN CONFUSION. 

THE PENNSYLVANIA STATUTE IS ALSO UNENFORCEABLE BECAUSE IT IS IN
CONFLICT WITH THE CONGRESSIONAL POLICY EMBODIED IN THE FEDERAL LAW. 
CONGRESS PROVIDED VARIOUS SAFEGUARDS TO PROTECT THE CIVIL LIBERTIES OF
ALIENS AND TO GUARD THEM AGAINST THE VEXATION OF INTRUSIVE POLICE
SURVEILLANCE.  THE PENNSYLVANIA STATUTE CONTAINS NO SIMILAR SAFEGUARDS;
TO THE CONTRARY, IT IS FRAUGHT WITH THE VERY DANGERS WHICH CONGRESS
SOUGHT TO PREVENT. 

THE ACT PROVIDES THAT THE REGISTRATION AND FINGERPRINTING SHALL BE
DONE AT THE POST OFFICE, THUS AVOIDING ANY SUGGESTION OF POLICE
ADMINISTRATION.  THERE IS NO PROVISION FOR THE ISSUANCE OF AN
IDENTIFICATION CARD AND NO REQUIREMENT THAT THE ALIEN SHALL CARRY WITH
HIM PROOF OF REGISTRATION.  THE PENNSYLVANIA STATUTE CONTAINS NO
SIMILAR PROTECTION OF ALIENS. 

ENFORCEMENT OF THE CONGRESSIONAL PURPOSE TO PROTECT THE CIVIL
LIBERTIES OF ALIENS REQUIRES THAT THE FEDERAL GOVERNMENT RETAIN THE
POWER TO CONTROL AND COORDINATE ALL ACTIVITIES WITH RESPECT TO
REGISTRATION AND SURVEILLANCE; THIS POLICY CAN NOT BE ENFORCED IF THE
STATES ARE PERMITTED TO ENACT AND ADMINISTER INDEPENDENT REGISTRATION
SYSTEMS, WHETHER FOR PURELY LOCAL ENDS OR FOR SOME PURPOSE WHICH THE
STATES SHARE IN COMMON WITH THE NATION. 

IF THE STATES WERE PERMITTED TO ADMINISTER INDEPENDENT STATUTES, THE
PROBABLE CONSEQUENCE WOULD BE TO CONFUSE THE ALIENS AS TO THEIR DUTIES
UNDER EACH OF THE SEPARATE ENACTMENTS, WITH THEIR DIFFERENT PROVISIONS,
DIFFERENT REGULATIONS, AND DIFFERENT METHODS OF ADMINISTRATION. 

NOTHING IN THE DEBATES IN CONGRESS OR IN THE COMMITTEE REPORTS
ILLUMINES THE LEGISLATIVE INTENTION CONCERNING STATE ACTION.  BUT THE
PRESIDENT DISCLOSED HIS UNDERSTANDING THAT THE FIELD HAD BEEN
COMPLETELY OCCUPIED, IN A STATEMENT ISSUED CONTEMPORANEOUSLY WITH HIS
SIGNING OF THE BILL, AND THE OFFICIALS CHARGED WITH ADMINISTERING THE
ACT HAVE TAKEN THE SAME POSITION.  A FORMAL STATEMENT ISSUED BY THE
PRESIDENT UPON COMPLETING HIS SHARE IN THE LEGISLATIVE PROCESS IS OF
IMPORTANCE IN DETERMINING THE LEGISLATIVE INTENTION TO PRECLUDE OR
PERMIT STATE ACTION.  SEE JONES, STATUTORY DOUBTS AND LEGISLATIVE
INTENTION, 40 COL. L. REV. 957, 968, N. 40; CF., UNITED STATES V.
DICKERSON, 310 U.S. 554. 

THERE IS NO OCCASION TO CONSIDER TO WHAT EXTENT THE STATES RETAIN THE
POWER TO ENACT CENSUS LEGISLATION FOR LOCAL PURPOSES.  CF., CITY OF NEW
YORK V. MILN, 11 PET. 102. 

APART FROM THE EFFECT OF THE ALIEN REGISTRATION ACT OF 1940, THE
STATES MAY NOT REQUIRE THE REGISTRATION OF ALIEN RESIDENTS WITHOUT THE
EXPRESS CONSENT OF CONGRESS. 

THE PENNSYLVANIA ACT IS IN CONFLICT WITH SEC. 16 OF THE CIVIL RIGHTS
ACT OF 1870. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE VALIDITY OF AN ALIEN REGISTRATION ACT ADOPTED
BY THE COMMONWEALTH OF PENNSYLVANIA.  FN1  THE ACT, PASSED IN 1939,
REQUIRES EVERY ALIEN 18 YEARS OR OVER, WITH CERTAIN EXCEPTIONS,  FN2
TO REGISTER ONCE EACH YEAR; PROVIDE SUCH INFORMATION AS IS REQUIRED BY
THE STATUTE, PLUS ANY "OTHER INFORMATION AND DETAILS" THAT THE
DEPARTMENT OF LABOR AND INDUSTRY MAY DIRECT; PAY $1 AS AN ANNUAL
REGISTRATION FEE; RECEIVE AN ALIEN IDENTIFICATION CARD AND CARRY IT AT
ALL TIMES; SHOW THE CARD WHENEVER IT MAY BE DEMANDED BY ANY POLICE
OFFICER OR ANY AGENT OF THE DEPARTMENT OF LABOR AND INDUSTRY; AND
EXHIBIT THE CARD AS A CONDITION PRECEDENT TO REGISTERING A MOTOR
VEHICLE IN HIS NAME OR OBTAINING A LICENSE TO OPERATE ONE.  THE
DEPARTMENT OF LABOR AND INDUSTRY IS CHARGED WITH THE DUTIES OF
CLASSIFYING THE REGISTRATIONS FOR "THE PURPOSE OF READY REFERENCE," AND
FURNISHING A COPY OF THE CLASSIFICATION TO THE PENNSYLVANIA MOTOR
POLICE.  NONEXEMPT ALIENS WHO FAIL TO REGISTER ARE SUBJECT TO A FINE OF
NOT MORE THAN $100 OR IMPRISONMENT FOR NOT MORE THAN 60 DAYS, OR BOTH. 
FOR FAILURE TO CARRY AN IDENTIFICATION CARD OR FOR FAILURE TO SHOW IT
UPON PROPER DEMAND, THE PUNISHMENT IS A FINE OF NOT MORE THAN $10, OR
IMPRISONMENT FOR NOT MORE THAN 10 DAYS, OR BOTH. 

A THREE-JUDGE DISTRICT COURT ENJOINED ENFORCEMENT OF THE ACT, HOLDING
THAT IT DENIED ALIENS EQUAL PROTECTION OF THE LAWS, AND THAT IT
ENCROACHED UPON LEGISLATIVE POWERS CONSTITUTIONALLY VESTED IN THE
FEDERAL GOVERNMENT.  FN3  IT IS THAT JUDGMENT WE ARE HERE CALLED UPON
TO REVIEW.  FN4  BUT IN 1940, AFTER THE COURT HAD HELD THE PENNSYLVANIA
ACT INVALID, CONGRESS ENACTED A FEDERAL ALIEN REGISTRATION ACT.  FN5
WE MUST THEREFORE PASS UPON THE STATE ACT IN THE LIGHT OF THE
CONGRESSIONAL ACT.  FN6 

THE FEDERAL ACT PROVIDES FOR A SINGLE REGISTRATION OF ALIENS 14 YEARS
OF AGE AND OVER; DETAILED INFORMATION SPECIFIED BY THE ACT, PLUS "SUCH
ADDITIONAL MATTERS AS MAY BE PRESCRIBED BY THE COMMISSIONER, WITH THE
APPROVAL OF THE ATTORNEY GENERAL"; FINGER-PRINTING OF ALL REGISTRANTS;
AND SECRECY OF THE FEDERAL FILES, WHICH CAN BE "MADE AVAILABLE ONLY TO
SUCH PERSONS OR AGENCIES AS MAY BE DESIGNATED BY THE COMMISSIONER, WITH
THE APPROVAL OF THE ATTORNEY GENERAL."  NO REQUIREMENT THAT ALIENS
CARRY A REGISTRATION CARD TO BE EXHIBITED TO POLICE OR OTHERS IS
EMBODIED IN THE LAW, AND ONLY THE WILFUL FAILURE TO REGISTER IS MADE A
CRIMINAL OFFENSE; PUNISHMENT IS FIXED AT A FINE OF NOT MORE THAN $100,
IMPRISONMENT FOR NOT MORE THAN 6 MONTHS, OR BOTH. 

THE BASIC SUBJECT OF THE STATE AND FEDERAL LAWS IS IDENTICAL -
REGISTRATION OF ALIENS AS A DISTINCT GROUP.  APPELLANTS URGE THAT THE
PENNSYLVANIA LAW "WAS CONSTITUTIONAL WHEN PASSED," AND THAT "THE ONLY
QUESTION IS WHETHER THE STATE ACT IS IN ABEYANCE OR WHETHER THE STATE
AND FEDERAL GOVERNMENT HAVE CONCURRENT JURISDICTION TO REGISTER ALIENS
FOR THE PROTECTION OF INHABITANTS AND PROPERTY."  APPELLEES, ON THE
OTHER HAND, CONTEND THAT THE PENNSYLVANIA ACT IS INVALID, FOR THE
REASONS THAT IT (1) DENIES EQUAL PROTECTION OF THE LAWS TO ALIENS
RESIDING IN THE STATE; (2) VIOLATES SEC. 16 OF THE CIVIL RIGHTS ACT OF
1870; FN7  (3) EXCEEDS PENNSYLVANIA'S CONSTITUTIONAL POWER IN REQUIRING
REGISTRATION OF ALIENS WITHOUT CONGRESSIONAL CONSENT.  APPELLEES' FINAL
CONTENTION IS THAT THE POWER TO RESTRICT, LIMIT, REGULATE AND REGISTER
ALIENS AS A DISTINCT GROUP IS NOT AN EQUAL AND CONTINUOUSLY EXISTING
CONCURRENT POWER OF STATE AND NATION, BUT THAT EVEN IF THE STATE CAN
LEGISLATE ON THIS SUBJECT AT ALL, ITS POWER IS SUBORDINATE TO SUPREME
NATIONAL LAW.  APPELLEES CONCLUDE THAT BY ITS ADOPTION OF A
COMPREHENSIVE, INTEGRATED SCHEME FOR REGULATION OF ALIENS - INCLUDING
ITS 1940 REGISTRATION ACT - CONGRESS HAS PRECLUDED STATE ACTION LIKE
THAT TAKEN BY PENNSYLVANIA.  FN8 

IN THE VIEW WE TAKE IT IS NOT NECESSARY TO PASS UPON APPELLEES'
FIRST, SECOND, AND THIRD CONTENTIONS, AND SO WE PASS IMMEDIATELY TO
THEIR FINAL QUESTION, EXPRESSLY LEAVING OPEN ALL OF APPELLEES' OTHER
CONTENTIONS, INCLUDING THE ARGUMENT THAT THE FEDERAL POWER IN THIS
FIELD, WHETHER EXERCISED OR UNEXERCISED, IS EXCLUSIVE.  OBVIOUSLY THE
ANSWER TO APPELLEES' FINAL QUESTION DEPENDS UPON AN ANALYSIS OF THE
RESPECTIVE POWERS OF STATE AND NATIONAL GOVERNMENTS IN THE REGULATION
OF ALIENS AS SUCH, AND A DETERMINATION OF WHETHER CONGRESS HAS, BY ITS
ACTION, FORECLOSED ENFORCEMENT OF PENNSYLVANIA'S REGISTRATION LAW. 

FIRST.  THAT THE SUPREMACY OF THE NATIONAL POWER IN THE GENERAL FIELD
OF FOREIGN AFFAIRS, INCLUDING POWER OVER IMMIGRATION, NATURALIZATION
AND DEPORTATION, IS MADE CLEAR BY THE CONSTITUTION, WAS POINTED OUT BY
THE AUTHORS OF THE FEDERALIST IN 1787,  FN9  AND HAS SINCE BEEN GIVEN
CONTINUOUS RECOGNITION BY THIS COURT.  FN10  WHEN THE NATIONAL
GOVERNMENT BY TREATY OR STATUTE HAS ESTABLISHED RULES AND REGULATIONS
TOUCHING THE RIGHTS, PRIVILEGES, OBLIGATIONS OR BURDENS OF ALIENS AS
SUCH, THE TREATY OR STATUTE IS THE SUPREME LAW OF THE LAND.  NO STATE
CAN ADD TO OR TAKE FROM THE FORCE AND EFFECT OF SUCH TREATY OR STATUTE,
FOR ARTICLE VI OF THE CONSTITUTION PROVIDES THAT "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." 
THE FEDERAL GOVERNMENT, REPRESENTING AS IT DOES THE COLLECTIVE
INTERESTS OF THE FORTY-EIGHT STATES, IS ENTRUSTED WITH FULL AND
EXCLUSIVE RESPONSIBILITY FOR THE CONDUCT OF AFFAIRS WITH FOREIGN
SOVEREIGNTIES.  "FOR LOCAL INTERESTS THE SEVERAL STATES OF THE UNION
EXIST, BUT FOR NATIONAL PURPOSES, EMBRACING OUR RELATIONS WITH FOREIGN
NATIONS, WE ARE BUT ONE PEOPLE, ONE NATION, ONE POWER."  FN11  OUR
SYSTEM OF GOVERNMENT IS SUCH THAT THE INTEREST OF THE CITIES, COUNTIES
AND STATES, NO LESS THAN THE INTEREST OF THE PEOPLE OF THE WHOLE
NATION, IMPERATIVELY REQUIRES THAT FEDERAL POWER IN THE FIELD AFFECTING
FOREIGN RELATIONS BE LEFT ENTIRELY FREE FROM LOCAL INTERFERENCE.  AS
MR. JUSTICE MILLER WELL OBSERVED OF A CALIFORNIA STATUTE BURDENING
IMMIGRATION: "IF (THE UNITED STATES) SHOULD GET INTO A DIFFICULTY WHICH
WOULD LEAD TO WAR, OR TO SUSPENSION OF INTERCOURSE, WOULD CALIFORNIA
ALONE SUFFER, OR ALL THE UNION?"  FN12 

ONE OF THE MOST IMPORTANT AND DELICATE OF ALL INTERNATIONAL
RELATIONSHIPS, RECOGNIZED IMMEMORIALLY AS A RESPONSIBILITY OF
GOVERNMENT, HAS TO DO WITH THE PROTECTION OF THE JUST RIGHTS OF A
COUNTRY'S OWN NATIONALS WHEN THOSE NATIONALS ARE IN ANOTHER COUNTRY. 
EXPERIENCE HAS SHOWN THAT INTERNATIONAL CONTROVERSIES OF THE GRAVEST
MOMENT, SOMETIMES EVEN LEADING TO WAR, MAY ARISE FROM REAL OR IMAGINED
WRONGS TO ANOTHER'S SUBJECTS INFLICTED, OR PERMITTED, BY A GOVERNMENT. 
FN13 THIS COUNTRY, LIKE OTHER NATIONS, HAS ENTERED INTO NUMEROUS
TREATIES OF AMITY AND COMMERCE SINCE ITS INCEPTION - TREATIES ENTERED
INTO UNDER EXPRESS CONSTITUTIONAL AUTHORITY, AND BINDING UPON THE
STATES AS WELL AS THE NATION.  AMONG THOSE TREATIES HAVE BEEN MANY
WHICH NOT ONLY PROMISED AND GUARANTEED BROAD RIGHTS AND PRIVILEGES TO
ALIENS SOJOURNING IN OUR OWN TERRITORY, BUT SECURED RECIPROCAL PROMISES
AND GUARANTEES FOR OUR OWN CITIZENS WHILE IN OTHER LANDS.  AND APART
FROM TREATY OBLIGATIONS, THERE HAS GROWN UP IN THE FIELD OF
INTERNATIONAL RELATIONS A BODY OF CUSTOMS DEFINING WITH MORE OR LESS
CERTAINTY THE DUTIES OWING BY ALL NATIONS TO ALIEN RESIDENTS - DUTIES
WHICH OUR STATE DEPARTMENT HAS OFTEN SUCCESSFULLY INSISTED FOREIGN
NATIONS MUST RECOGNIZE AS TO OUR NATIONALS ABROAD.  FN14  IN GENERAL,
BOTH TREATIES AND INTERNATIONAL PRACTICES HAVE BEEN AIMED AT PREVENTING
INJURIOUS DISCRIMINATIONS AGAINST ALIENS.  CONCERNING SUCH TREATIES,
THIS COURT HAS SAID:  "WHILE TREATIES, IN SAFEGUARDING IMPORTANT RIGHTS
IN THE INTEREST OF RECIPROCAL BENEFICIAL RELATIONS, MAY BY THEIR
EXPRESS TERMS AFFORD A MEASURE OF PROTECTION TO ALIENS WHICH CITIZENS
OF ONE OR BOTH OF THE PARTIES MAY NOT BE ABLE TO DEMAND AGAINST THEIR
OWN GOVERNMENT, THE GENERAL PURPOSE OF TREATIES OF AMITY AND COMMERCE
IS TO AVOID INJURIOUS DISCRIMINATION IN EITHER COUNTRY AGAINST THE
CITIZENS OF THE OTHER."  FN15 

LEGAL IMPOSITION OF DISTINCT, UNUSUAL AND EXTRAORDINARY BURDENS AND
OBLIGATIONS UPON ALIENS - SUCH AS SUBJECTING THEM ALONE, THOUGH
PERFECTLY LAW-ABIDING, TO INDISCRIMINATE AND REPEATED INTERCEPTION AND
INTERROGATION BY PUBLIC OFFICIALS - THUS BEARS AN INSEPARABLE
RELATIONSHIP TO THE WELFARE AND TRANQUILLITY OF ALL THE STATES, AND NOT
MERELY TO THE WELFARE AND TRANQUILLITY OF ONE.  LAWS IMPOSING SUCH
BURDENS ARE NOT MERE CENSUS REQUIREMENTS, AND EVEN THOUGH THEY MAY BE
IMMEDIATELY ASSOCIATED WITH THE ACCOMPLISHMENT OF A LOCAL PURPOSE, THEY
PROVOKE QUESTIONS IN THE FIELD OF INTERNATIONAL AFFAIRS.  AND
SPECIALIZED REGULATION OF THE CONDUCT OF AN ALIEN BEFORE NATURALIZATION
IS A MATTER WHICH CONGRESS MUST CONSIDER IN DISCHARGING ITS
CONSTITUTIONAL DUTY "TO ESTABLISH AN UNIFORM RULE OF NATURALIZATION
...  "  IT CANNOT BE DOUBTED THAT BOTH THE STATE AND THE FEDERAL
REGISTRATION LAWS BELONG "TO THAT CLASS OF LAWS WHICH CONCERN THE
EXTERIOR RELATION OF THIS WHOLE NATION WITH OTHER NATIONS AND
GOVERNMENTS."  FN16  CONSEQUENTLY THE REGULATION OF ALIENS IS SO
INTIMATELY BLENDED AND INTERTWINED WITH RESPONSIBILITIES OF THE
NATIONAL GOVERNMENT THAT WHERE IT ACTS, AND THE STATE ALSO ACTS ON THE
SAME SUBJECT, "THE ACT OF CONGRESS, OR THE TREATY, IS SUPREME; AND THE
LAW OF THE STATE, THOUGH ENACTED IN THE EXERCISE OF POWERS NOT
CONTROVERTED, MUST YIELD TO IT."  FN17  AND WHERE THE FEDERAL
GOVERNMENT, IN THE EXERCISE OF ITS SUPERIOR AUTHORITY IN THIS FIELD,
HAS ENACTED A COMPLETE SCHEME OF REGULATION AND HAS THEREIN PROVIDED A
STANDARD FOR THE REGISTRATION OF ALIENS, STATES CANNOT, INCONSISTENTLY
WITH THE PURPOSE OF CONGRESS, CONFLICT OR INTERFERE WITH, CURTAIL OR
COMPLEMENT, THE FEDERAL LAW, OR ENFORCE ADDITIONAL OR AUXILIARY
REGULATIONS.  FN18  THERE IS NOT - AND FROM THE VERY NATURE OF THE
PROBLEM THERE CANNOT BE - ANY RIGID FORMULA OR RULE WHICH CAN BE USED
AS A UNIVERSAL PATTERN TO DETERMINE THE MEANING AND PURPOSE OF EVERY
ACT OF CONGRESS.  THIS COURT, IN CONSIDERING THE VALIDITY OF STATE LAWS
IN THE LIGHT OF TREATIES OR FEDERAL LAWS TOUCHING THE SAME SUBJECT, HAS
MADE USE OF THE FOLLOWING EXPRESSIONS:  CONFLICTING; CONTRARY TO;
OCCUPYING THE FIELD; REPUGNANCE; DIFFERENCE; IRRECONCILABILITY;
INCONSISTENCY; VIOLATION; CURTAILMENT; AND INTERFERENCE.  FN19  BUT
NONE OF THESE EXPRESSIONS PROVIDES AN INFALLIBLE CONSTITUTIONAL TEST OR
AN EXCLUSIVE CONSTITUTIONAL YARDSTICK.  IN THE FINAL ANALYSIS, THERE
CAN BE NO ONE CRYSTAL CLEAR DISTINCTLY MARKED FORMULA.  OUR PRIMARY
FUNCTION IS TO DETERMINE WHETHER, UNDER THE CIRCUMSTANCES OF THIS
PARTICULAR CASE, PENNSYLVANIA'S LAW STANDS AS AN OBSTACLE TO THE
ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF
CONGRESS.  FN20  AND IN THAT DETERMINATION, IT IS OF IMPORTANCE THAT
THIS LEGISLATION IS IN A FIELD WHICH AFFECTS INTERNATIONAL RELATIONS,
THE ONE ASPECT OF OUR GOVERNMENT THAT FROM THE FIRST HAS BEEN MOST
GENERALLY CONCEDED IMPERATIVELY TO DEMAND BROAD NATIONAL AUTHORITY. 
ANY CONCURRENT STATE POWER THAT MAY EXIST IS RESTRICTED TO THE
NARROWEST OF LIMITS; THE STATE'S POWER HERE IS NOT BOTTOMED ON THE SAME
BROAD BASE AS IS ITS POWER TO TAX.  FN21  AND IT IS ALSO OF IMPORTANCE
THAT THIS LEGISLATION DEALS WITH THE RIGHTS, LIBERTIES, AND PERSONAL
FREEDOMS OF HUMAN BEINGS, AND IS IN AN ENTIRELY DIFFERENT CATEGORY FROM
STATE TAX STATUTES OR STATE PURE FOOD LAWS REGULATING THE LABELS ON
CANS.  FN22 

OUR CONCLUSION IS THAT APPELLEE IS CORRECT IN HIS CONTENTION THAT THE
POWER TO RESTRICT, LIMIT, REGULATE, AND REGISTER ALIENS AS A DISTINCT
GROUP IS NOT AN EQUAL AND CONTINUOUSLY EXISTING CONCURRENT POWER OF
STATE AND NATION, BUT THAT WHATEVER POWER A STATE MAY HAVE IS
SUBORDINATE TO SUPREME NATIONAL LAW.  FN23  WE PROCEED THEREFORE TO AN
EXAMINATION OF CONGRESSIONAL ENACTMENTS TO ASCERTAIN WHETHER OR NOT
CONGRESS HAS ACTED IN SUCH MANNER THAT ITS ACTION SHOULD PRECLUDE
ENFORCEMENT OF PENNSYLVANIA'S LAW. 

SECOND.  FOR MANY YEARS CONGRESS HAS PROVIDED A BROAD AND
COMPREHENSIVE PLAN DESCRIBING THE TERMS AND CONDITIONS UPON WHICH
ALIENS MAY ENTER THIS COUNTRY, HOW THEY MAY ACQUIRE CITIZENSHIP, AND
THE MANNER IN WHICH THEY MAY BE DEPORTED.  NUMEROUS TREATIES, IN RETURN
FOR RECIPROCAL PROMISES FROM OTHER GOVERNMENTS, HAVE PLEDGED THE SOLEMN
OBLIGATION OF THIS NATION TO THE END THAT ALIENS RESIDING IN OUR
TERRITORY SHALL NOT BE SINGLED OUT FOR THE IMPOSITION OF DISCRIMINATORY
BURDENS.  OUR CONSTITUTION AND OUR CIVIL RIGHTS ACT HAVE GUARANTEED TO
ALIENS "THE EQUAL PROTECTION OF THE LAWS (WHICH) IS A PLEDGE OF THE
PROTECTION OF EQUAL LAWS."  FN24  WITH A VIEW TO LIMITING PROSPECTIVE
RESIDENTS FROM FOREIGN LANDS TO THOSE POSSESSING THE QUALITIES DEEMED
ESSENTIAL TO GOOD AND USEFUL CITIZENSHIP IN AMERICA, CAREFULLY DEFINED
QUALIFICATIONS ARE REQUIRED TO BE MET BEFORE ALIENS MAY ENTER OUR
COUNTRY.  THESE QUALIFICATIONS INCLUDE RIGID REQUIREMENTS AS TO HEALTH,
EDUCATION, INTEGRITY, CHARACTER, AND ADAPTABILITY TO OUR INSTITUTIONS. 
NOR IS THE ALIEN LEFT FREE FROM THE APPLICATION OF FEDERAL LAWS AFTER
ENTRY AND BEFORE NATURALIZATION.  IF DURING THE TIME HE IS RESIDING
HERE HE SHOULD BE FOUND GUILTY OF CONDUCT CONTRARY TO THE RULES AND
REGULATIONS LAID DOWN BY CONGRESS, HE CAN BE DEPORTED.  AT THE TIME HE
ENTERS THE COUNTRY, AT THE TIME HE APPLIES FOR PERMISSION TO ACQUIRE
THE FULL STATUS OF CITIZENSHIP, AND DURING THE INTERVENING YEARS, HE
CAN BE SUBJECTED TO SEARCHING INVESTIGATIONS AS TO CONDUCT AND
SUITABILITY FOR CITIZENSHIP.  FN25  AND IN 1940 CONGRESS ADDED TO THIS
COMPREHENSIVE SCHEME A COMPLETE SYSTEM FOR ALIEN REGISTRATION. 

THE NATURE OF THE POWER EXERTED BY CONGRESS, THE OBJECT SOUGHT TO BE
ATTAINED, AND THE CHARACTER OF THE OBLIGATIONS IMPOSED BY THE LAW, ARE
ALL IMPORTANT IN CONSIDERING THE QUESTION OF WHETHER SUPREME FEDERAL
ENACTMENTS PRECLUDE ENFORCEMENT OF STATE LAWS ON THE SAME SUBJECT. 
FN26 OPPOSITION TO LAWS PERMITTING INVASION OF THE PERSONAL LIBERTIES
OF LAW-ABIDING INDIVIDUALS, OR SINGLING OUT ALIENS AS PARTICULARLY
DANGEROUS AND UNDESIRABLE GROUPS, IS DEEP-SEATED IN THIS COUNTRY. 
HOSTILITY TO SUCH LEGISLATION IN AMERICA STEMS BACK TO OUR COLONIAL
HISTORY,  FN27  AND CHAMPIONS OF FREEDOM FOR THE INDIVIDUAL HAVE ALWAYS
VIGOROUSLY OPPOSED BURDENSOME REGISTRATION SYSTEMS.  THE DRASTIC
REQUIREMENTS OF THE ALIEN ACTS OF 1798  FN28  BROUGHT ABOUT A POLITICAL
UPHEAVAL IN THIS COUNTRY THE REPERCUSSIONS FROM WHICH HAVE NOT EVEN YET
WHOLLY SUBSIDED N29.  SO VIOLENT WAS THE REACTION TO THE 1798 LAWS THAT
ALMOST A CENTURY ELAPSED BEFORE A SECOND REGISTRATION ACT WAS PASSED. 
THIS SECOND LAW, WHICH REQUIRED CHINESE TO REGISTER AND CARRY
IDENTIFICATION CARDS WITH THEM AT ALL TIMES, WAS ENACTED MAY 5, 1892. 
AN OPPONENT OF THIS LEGISLATION, SPEAKING IN THE SENATE OF THE
REQUIREMENT THAT CARDS BE CARRIED, SAID:  "(THE CHINESE COVERED BY THE
ACT) ARE HERE TICKET-OF-LEAVE MEN; PRECISELY AS, UNDER THE AUSTRALIAN
LAW, A CONVICT IS ALLOWED TO GO AT LARGE UPON A TICKET-OF-LEAVE, THESE
PEOPLE ARE TO BE ALLOWED TO GO AT LARGE AND EARN THEIR LIVELIHOOD, BUT
THEY MUST HAVE THEIR TICKETS-OF-LEAVE IN THEIR POSSESSION.  ...  THIS
INAUGURATES IN OUR SYSTEM OF GOVERNMENT A NEW DEPARTURE; ONE, I BELIEVE
NEVER BEFORE PRACTISED, ALTHOUGH IT WAS SUGGESTED IN CONFERENCE THAT
SOME SUCH RULES HAD BEEN ADOPTED IN SLAVERY TIMES TO SECURE THE PEACE
OF SOCIETY."  FN30 

FOR MANY YEARS BILLS HAVE BEEN REGULARLY PRESENTED TO EVERY CONGRESS
PROVIDING FOR REGISTRATION OF ALIENS.  SOME OF THESE BILLS PROPOSED
ANNUAL REGISTRATION OF ALIENS, ISSUANCE OF IDENTIFICATION CARDS
CONTAINING INFORMATION ABOUT AND A PHOTOGRAPH OF THE BEARER, EXHIBITION
OF THE CARDS ON DEMAND, PAYMENT OF AN ANNUAL FEE, AND KINDRED
REQUIREMENTS.  FN31  OPPOSITION TO THESE BILLS WAS BASED UPON CHARGES
THAT THEIR REQUIREMENTS WERE AT WAR WITH THE FUNDAMENTAL PRINCIPLES OF
OUR FREE GOVERNMENT, IN THAT THEY WOULD BRING ABOUT UNNECESSARY AND
IRRITATING RESTRICTIONS UPON PERSONAL LIBERTIES OF THE INDIVIDUAL, AND
WOULD SUBJECT ALIENS TO A SYSTEM OF INDISCRIMINATE QUESTIONING SIMILAR
TO THE ESPIONAGE SYSTEMS EXISTING IN OTHER LANDS.  FN32 

WHEN CONGRESS PASSED THE ALIEN REGISTRATION ACT OF 1940, MANY OF THE
PROVISIONS WHICH HAD BEEN SO SEVERELY CRITICIZED WERE NOT INCLUDED. 
FN33  THE CONGRESSIONAL PURPOSE, AS ANNOUNCED BY THE CHAIRMAN OF THE
SENATE SUBCOMMITTEE WHICH DRAFTED THE FINAL BILL, WAS TO "WORK  ...
THE NEW PROVISIONS INTO THE EXISTING (IMMIGRATION AND NATURALIZATION)
LAWS, SO AS TO MAKE A HARMONIOUS WHOLE."  FN34  THAT "HARMONIOUS WHOLE"
INCLUDED THE "UNIFORM RULE OF NATURALIZATION" THE CONSTITUTION
EMPOWERED THE CONGRESS TO PROVIDE.  FN35  AND AS A PART OF THAT
"HARMONIOUS WHOLE," UNDER THE FEDERAL ACT ALIENS NEED NOT CARRY CARDS,
AND CAN ONLY BE PUNISHED FOR WILFUL FAILURE TO REGISTER.  FN36
FURTHER, REGISTRATION RECORDS AND FINGERPRINTS MUST BE KEPT SECRET AND
CANNOT BE REVEALED EXCEPT TO AGENCIES - SUCH AS A STATE - UPON CONSENT
OF THE COMMISSIONER AND THE ATTORNEY GENERAL.    WE HAVE ALREADY
ADVERTED TO THE CONDITIONS WHICH MAKE THE TREATMENT OF ALIENS, IN
WHATEVER STATE THEY MAY BE LOCATED, A MATTER OF NATIONAL MOMENT.  AND
WHETHER OR NOT REGISTRATION OF ALIENS IS OF SUCH A NATURE THAT THE
CONSTITUTION PERMITS ONLY OF ONE UNIFORM NATIONAL SYSTEM, IT CANNOT BE
DENIED THAT THE CONGRESS MIGHT VALIDLY CONCLUDE THAT SUCH UNIFORMITY IS
DESIRABLE.  THE LEGISLATIVE HISTORY OF THE ACT INDICATES THAT CONGRESS
WAS TRYING TO STEER A MIDDLE PATH, REALIZING THAT ANY REGISTRATION
REQUIREMENT WAS A DEPARTURE FROM OUR TRADITIONAL POLICY OF NOT TREATING
ALIENS AS A THING APART, BUT ALSO FEELING THAT THE NATION WAS IN NEED
OF THE TYPE OF INFORMATION TO BE SECURED.  FN37  HAVING THE
CONSTITUTIONAL AUTHORITY SO TO DO, IT HAS PROVIDED A STANDARD FOR ALIEN
REGISTRATION IN A SINGLE INTEGRATED AND ALL-EMBRACING SYSTEM IN ORDER
TO OBTAIN THE INFORMATION DEEMED TO BE DESIRABLE IN CONNECTION WITH
ALIENS.  WHEN IT MADE THIS ADDITION TO ITS UNIFORM NATURALIZATION AND
IMMIGRATION LAWS, IT PLAINLY MANIFESTED A PURPOSE TO DO SO IN SUCH A
WAY AS TO PROTECT THE PERSONAL LIBERTIES OF LAW-ABIDING ALIENS THROUGH
ONE UNIFORM NATIONAL REGISTRATION SYSTEM, AND TO LEAVE THEM FREE FROM
THE POSSIBILITY OF INQUISITORIAL PRACTICES AND POLICE SURVEILLANCE THAT
MIGHT NOT ONLY AFFECT OUR INTERNATIONAL RELATIONS BUT MIGHT ALSO
GENERATE THE VERY DISLOYALTY WHICH THE LAW HAS INTENDED GUARDING
AGAINST.  UNDER THESE CIRCUMSTANCES, THE PENNSYLVANIA ACT CANNOT BE
ENFORCED.  ACCORDINGLY, THE JUDGMENT BELOW IS AFFIRMED. 

FN1  PA. STATS. ANN. (PURDON, SUPP. 1940) TIT. 35, SECS. 1801-1806. 

FN2  THE EXCEPTIONS ARE:  ALIENS WHO ARE THE "FATHER OR MOTHER OF A
SON OR DAUGHTER WHO HAS SERVED IN THE SERVICE OF THE UNITED STATES
DURING ANY WAR"; ALIENS WHO HAVE RESIDED IN THE UNITED STATES
CONTINUOUSLY SINCE DECEMBER 31, 1908, WITHOUT ACQUIRING A CRIMINAL
RECORD; AND ALIENS WHO HAVE FILED THEIR APPLICATION FOR CITIZENSHIP. 
THE LATTER EXCEPTION IS QUALIFIED BY THE PROVISO THAT ALIENS IN THAT
CATEGORY MUST STILL REGISTER IF THEY "SHALL NOT HAVE BECOME NATURALIZED
WITHIN A PERIOD OF THREE YEARS" AFTER APPLYING FOR CITIZENSHIP.  SINCE
FEDERAL LAW REQUIRES FIVE YEARS RESIDENCE BEFORE CITIZENSHIP CAN BE
ACQUIRED (8 U.S.C. SEC. 382), THIS EXCEPTION MEANS THAT ALIENS MAY BE
EXEMPT UNDER THE PENNSYLVANIA STATUTE FOR THE FIRST THREE YEARS AFTER
THEIR ARRIVAL BUT SUBJECT TO THE STATUTE FOR THE TWO YEARS IMMEDIATELY
PRECEDING THEIR ELIGIBILITY FOR CITIZENSHIP. 

FN3  30 F.SUPP.  470.  ONE ALIEN AND ONE NATURALIZED CITIZEN JOINED
IN PROCEEDINGS FILED AGAINST CERTAIN STATE OFFICIALS TO ENJOIN
ENFORCEMENT OF THE ACT.  THE ANSWER OF THE DEFENDANTS ADMITTED THE
MATERIAL ALLEGATIONS OF THE PETITION AND DEFENDED THE ACT ON THE GROUND
THAT IT WAS WITHIN THE POWER OF THE STATE.  PLAINTIFFS MOVED FOR
JUDGMENT ON THE PLEADINGS UNDER RULE 12(C).  THE REQUESTED RELIEF WAS
DENIED AS TO THE NATURALIZED CITIZEN BUT GRANTED AS TO THE ALIEN. 

FN4  THE CASE IS HERE ON APPEAL UNDER SEC. 266 OF THE JUDICIAL CODE,
AS AMENDED (28 U.S.C. SEC. 380).  WE NOTED PROBABLE JURISDICTION ON
MARCH 25, 1940. 

FN5  ACT OF JUNE 28, 1940, C. 439, 54 STAT. 670. 

FN6  CF. VANDENBARK V. OWENS-ILLINOIS GLASS CO., 311 U.S. 538.  AND
SEE UNITED STATES V. SCHOONER PEGGY, 1 CRANCH 103, 110, AND CARPENTER
V. WABASH RY. CO., 309 U.S. 23, 26-27. 

FN7  16 STAT. 140, 144, 8 U.S.C. SEC. 41:  "ALL PERSONS WITHIN THE
JURISDICTION OF THE UNITED STATES SHALL HAVE THE SAME RIGHT IN EVERY
STATE AND TERRITORY TO MAKE AND ENFORCE CONTRACTS, TO SUE, BE PARTIES,
GIVE EVIDENCE, AND TO THE FULL AND EQUAL BENEFIT OF ALL LAWS AND
PROCEEDINGS FOR THE SECURITY OF PERSONS AND PROPERTY AS IS ENJOYED BY
WHITE CITIZENS, AND SHALL BE SUBJECT TO LIKE PUNISHMENT, PAINS,
PENALTIES, TAXES, LICENSES, AND EXACTIONS OF EVERY KIND, AND TO NO
OTHER." 

FN8  PENNSYLVANIA IS NOT ALONE AMONG THE STATES IN ATTEMPTING TO
COMPEL ALIEN REGISTRATION.  SEVERAL STATES STILL HAVE DORMANT ON THEIR
STATUTE BOOKS LAWS PASSED IN 1917-18, EMPOWERING THE GOVERNOR TO
REQUIRE REGISTRATION WHEN A STATE OF WAR EXISTS OR WHEN PUBLIC
NECESSITY REQUIRES SUCH A STEP.  E.G., CONN. GEN. STATS. (1930) TIT.
59, SEC. 6042; FLA. COMP. GEN. LAWS (1927) SEC. 2078; IOWA CODE (1939)
SEC. 503; LA. GEN. STATS. (DART, 1939) TIT. 3, SEC. 282; ME. REV.
STATS. (1930) CH. 34, SEC. 3; N.H. PUB. LAWS (1926) CH. 154; N.Y.
CONS.  LAWS (EXECUTIVE LAW) SEC. 10.  OTHER STATES, LIKE PENNSYLVANIA,
HAVE PASSED REGISTRATION LAWS MORE RECENTLY.  E.G., S.C. ACTS (1940)
NO. 1014, SEC. 9, P. 1939; N.C. CODE (1939) SECS. 193(A)-(H).  IN
SEVERAL STATES, MUNICIPALITIES HAVE RECENTLY UNDERTAKEN LOCAL ALIEN
REGISTRATION. 

REGISTRATION STATUTES OF MICHIGAN AND CALIFORNIA WERE HELD
UNCONSTITUTIONAL IN ARROWSMITH V. VOORHIES, 55 F.2D 310, AND EX PARTE
AH CUE, 101 CAL. 197, 35 P. 556. 

FN9  THE IMPORTANCE OF NATIONAL POWER IN ALL MATTERS RELATING TO
FOREIGN AFFAIRS AND THE INHERENT DANGER OF STATE ACTION IN THIS FIELD
ARE CLEARLY DEVELOPED IN FEDERALIST PAPERS NO. 3, 4, 5, 42 AND 80. 

FN10  E.G., HENDERSON V. MAYOR OF NEW YORK, 92 U.S. 259; PEOPLE V.
COMPAGNIE GENERALE TRANSATLANTIQUE, 107 U.S. 59; FONG YUE TING V.
UNITED STATES, 149 U.S. 698, 711.  CF. Z. & F. ASSETS REALIZATION CORP.
V. HULL, 311 U.S. 470. 

FN11  CHINESE EXCLUSION CASE, 130 U.S. 581, 606.  THOMAS JEFFERSON,
WHO WAS NOT GENERALLY FAVORABLE TO BROAD FEDERAL POWERS, EXPRESSED A
SIMILAR VIEW IN 1787:  "MY OWN GENERAL IDEA WAS, THAT THE STATES SHOULD
SEVERALLY PRESERVE THEIR SOVEREIGNTY IN WHATEVER CONCERNS THEMSELVES
ALONE, AND THAT WHATEVER MAY CONCERN ANOTHER STATE, OR ANY FOREIGN
NATION, SHOULD BE MADE A PART OF THE FEDERAL SOVEREIGNTY."  MEMOIR,
CORRESPONDENCE AND MISCELLANIES FROM THE PAPERS OF THOMAS JEFFERSON
(1829), VOL. 2, P. 230, LETTER TO MR. WYTHE.  CF. JAMES MADISON IN
FEDERALIST PAPER NO. 42:  "THE SECOND CLASS OF POWERS, LODGED IN THE
GENERAL GOVERNMENT, CONSIST OF THOSE WHICH REGULATE THE INTERCOURSE
WITH FOREIGN NATIONS.  ...  THIS CLASS OF POWERS FORMS AN OBVIOUS AND
ESSENTIAL BRANCH OF THE FEDERAL ADMINISTRATION.  IF WE ARE TO BE ONE
NATION IN ANY RESPECT, IT CLEARLY OUGHT TO BE IN RESPECT TO OTHER
NATIONS." 

FN12  CHY LUNG V. FREEMAN, 92 U.S. 275, 279.  CF. ALEXANDER HAMILTON
IN FEDERALIST PAPER NO. 80: "THE PEACE OF THE WHOLE OUGHT NOT TO BE
LEFT AT THE DISPOSAL OF A PART.  THE UNION WILL UNDOUBTEDLY BE
ANSWERABLE TO FOREIGN POWERS FOR THE CONDUCT OF ITS MEMBERS."  THAT THE
CONGRESS WAS NOT UNAWARE OF THE POSSIBLE INTERNATIONAL REPERCUSSIONS OF
REGISTRATION LEGISLATION IS APPARENT FROM A STUDY OF THE HISTORY OF THE
1940 FEDERAL ACT.  CONGRESSMAN COFFEE, SPEAKING AGAINST AN EARLIER
VERSION OF THE BILL, SAID:  "ARE WE NOT GUILTY OF DELIBERATELY
INSULTING NATIONS WITH WHOM WE MAINTAIN FRIENDLY DIPLOMATIC RELATIONS? 
ARE WE NOT HUMILIATING THEIR NATIONALS?  ARE WE NOT VIOLATING THE
TRADITIONS AND EXPERIENCES OF A CENTURY AND A HALF?"  84 CONG. REC.
9536. 

FN13  FOR A COLLECTION OF TYPICAL INTERNATIONAL CONTROVERSIES THAT
HAVE ARISEN IN THIS MANNER, SEE DUNN, THE PROTECTION OF NATIONALS
(1932), PP. 13 ET SEQ. CF. JOHN JAY IN FEDERALIST PAPER NO. 3:  "THE
NUMBER OF WARS WHICH HAVE HAPPENED OR WILL HAPPEN IN THE WORLD WILL
ALWAYS BE FOUND TO BE IN PROPORTION TO THE NUMBER AND WEIGHT OF THE
CAUSES, WHETHER REAL OR PRETENDED, WHICH PROVOKE OR INVITE THEM.  IF
THIS REMARK BE JUST, IT BECOMES USEFUL TO INQUIRE WHETHER SO MANY JUST
CAUSES OF WAR ARE LIKELY TO BE GIVEN BY UNITED AMERICA AS BY DISUNITED
AMERICA; FOR IF IT SHOULD TURN OUT THAT UNITED AMERICA WILL PROBABLY
GIVE THE FEWEST, THEN IT WILL FOLLOW THAT IN THIS RESPECT THE UNION
TENDS MOST TO PRESERVE THE PEOPLE IN A STATE OF PEACE WITH OTHER
NATIONS." 

FN14  "IN CONSEQUENCE OF THE RIGHT OF PROTECTION OVER ITS SUBJECTS
ABROAD WHICH EVERY STATE ENJOYS, AND THE CORRESPONDING DUTY OF EVERY
STATE TO TREAT ALIENS ON ITS TERRITORY WITH A CERTAIN CONSIDERATION, AN
ALIEN  ...  MUST BE AFFORDED PROTECTION FOR HIS PERSON AND PROPERTY. 
...  EVERY STATE IS BY THE LAW OF NATIONS COMPELLED TO GRANT TO ALIENS
AT LEAST EQUALITY BEFORE THE LAW WITH ITS CITIZENS, AS FAR AS SAFETY OF
PERSON AND PROPERTY IS CONCERNED.  AN ALIEN MUST IN PARTICULAR NOT BE
WRONGED IN PERSON OR PROPERTY BY THE OFFICIALS AND COURTS OF A STATE. 
THUS THE POLICE MUST NOT ARREST HIM WITHOUT JUST CAUSE.  ...  "  1
OPPENHEIM, INTERNATIONAL LAW (5TH ED., 1937), PP. 547-548.  AND SEE 4
MOORE, INTERNATIONAL LAW DIGEST, PP. 2, 27, 28; BORCHARD, THE
DIPLOMATIC PROTECTION OF CITIZENS ABROAD (1928), PP. 25, 37, 73, 104. 

FN15  TODOK V. UNION STATE BANK, 281 U.S. 449, 454-455. 

FN16  HENDERSON V. MAYOR OF NEW YORK, 92 U.S. 259, 273. 

FN17  GIBBONS V. OGDEN, 9 WHEAT.  1, 211; SEE CHARLESTON & WESTERN
CAROLINA RY. CO. V. VARNVILLE FURNITURE CO., 237 U.S. 597.  CF. PEOPLE
V. COMPAGNIE GENERALE TRANSATLANTIQUE, 107 U.S. 59, 63, WHERE THE
COURT, SPEAKING OF A STATE LAW AND A FEDERAL LAW DEALING WITH THE SAME
TYPE OF CONTROL OVER ALIENS, SAID THAT THE FEDERAL LAW "COVERS THE SAME
GROUND AS THE NEW YORK STATUTE, AND THEY CANNOT CO-EXIST." 

FN18  CF. NIELSEN V. JOHNSON, 279 U.S. 47; ASAKURA V. SEATTLE, 265
U.S. 332; INTERNATIONAL SHOE CO. V. PINKUS, 278 U.S. 261, 265, AND
CASES THERE CITED.  AND SEE SAVAGE V. JONES, 225 U.S. 501, 539. 
APPELLANT RELIES ON GILBERT V. MINNESOTA, 254 U.S. 325, AND HALTER V.
NEBRASKA, 205 U.S. 34, BUT NEITHER OF THOSE CASES IS RELEVANT TO THE
ISSUES HERE PRESENTED. 

FN19  E.G., HAUENSTEIN V. LYNHAM, 100 U.S. 483, 489; GEOFROY V.
RIGGS, 133 U.S. 258, 267; ASAKURA V. SEATTLE, 265 U.S. 332, 340, 342;
NIELSEN V. JOHNSON, 279 U.S. 47, 52; TODOK V. UNION STATE BANK, 281
U.S. 449, 454; SANTOVINCENZO V. EGAN, 284 U.S. 30, 40; UNITED STATES V.
BELMONT, 301 U.S. 324, 331(BUT COMPARE THE AFFIRMANCE BY AN EQUALLY
DIVIDED COURT IN UNITED STATES V. MOSCOW FIRE INS. CO., 309 U.S. 624);
KELLY V. WASHINGTON, 302 U.S. 1, 10, 11; MAURER V. HAMILTON, 309 U.S.
598, 604; BACARDI CORPORATION V. DOMENECH, 311 U.S. 150, 157, 167. 

FN20  CF. SAVAGE V. JONES, 225 U.S. 501, 533:  "FOR WHEN THE QUESTION
IS WHETHER A FEDERAL ACT OVERRIDES A STATE LAW, THE ENTIRE SCHEME OF
THE STATUTE MUST OF COURSE BE CONSIDERED AND THAT WHICH NEEDS MUST BE
IMPLIED IS OF NO LESS FORCE THAN THAT WHICH IS EXPRESSED.  IF THE
PURPOSE OF THE ACT CANNOT OTHERWISE BE ACCOMPLISHED - IF ITS OPERATION
WITHIN ITS CHOSEN FIELD ELSE MUST BE FRUSTRATED AND ITS PROVISIONS BE
REFUSED THEIR NATURAL EFFECT - THE STATE LAW MUST YIELD TO THE
REGULATION OF CONGRESS WITHIN THE SPHERE OF ITS DELEGATED POWER." 

FN21  EXPRESS RECOGNITION OF THE BREADTH OF THE CONCURRENT TAXING
POWERS OF STATE AND NATION IS FOUND IN FEDERALIST PAPER NO. 32. 

FN22  IT IS TRUE THAT WHERE THE CONSTITUTION DOES NOT OF ITSELF
PROHIBIT STATE ACTION, AS IN MATTERS RELATED TO INTERSTATE COMMERCE,
AND WHERE THE CONGRESS, WHILE REGULATING RELATED MATTERS, HAS PURPOSELY
LEFT UNTOUCHED A DISTINCTIVE PART OF A SUBJECT WHICH IS PECULIARLY
ADAPTED TO LOCAL REGULATION, THE STATE MAY LEGISLATE CONCERNING SUCH
LOCAL MATTERS WHICH CONGRESS COULD HAVE COVERED BUT DID NOT.  KELLY V.
WASHINGTON, 302 U.S. 1, 9, 10, 11, 12, 13, 14(INSPECTION FOR
SEAWORTHINESS OF HULL AND MACHINERY OF MOTOR-DRIVEN TUGS).  AND SEE
REID V. COLORADO, 187 U.S. 137, 147(PROHIBITION ON INTRODUCTION OF
DISEASED CATTLE OR HORSES); SAVAGE V. JONES, 225 U.S. 501, 529,
532(REQUIREMENT THAT CERTAIN LABELS REVEAL PACKAGE CONTENTS); CAREY V.
SOUTH DAKOTA, 250 U.S. 118, 121(PROHIBITION OF SHIPMENT BY CARRIER OF
WILD DUCKS); DICKSON V. UHLMANN GRAIN CO., 288 U.S. 188,
199(PROHIBITION OF MARGIN TRANSACTIONS IN GRAIN WHERE THERE IS NO
INTENT TO DELIVER); MINTZ V. BALDWIN, 289 U.S. 346, 350-352(INSPECTION
OF CATTLE FOR INFECTIOUS DISEASES); MAURER V. HAMILTON, 309 U.S. 598,
604, 614(PROHIBITION OF CAR-OVER-CAB TRUCKING). 

FN23  AS SUPPORTING THE CONTENTION THAT THE STATE CAN ENFORCE ITS
ALIEN REGISTRATION LEGISLATION, EVEN THOUGH CONGRESS HAS ACTED ON THE
IDENTICAL SUBJECT, APPELLANT RELIES UPON A NUMBER OF PREVIOUS OPINIONS
OF THIS COURT.  OHIO EX REL. CLARKE V. DECKEBACH, 274 U.S. 392, 395,
396; FRICK V. WEBB, 263 U.S. 326, 333; WEBB V. O'BRIEN, 263 U.S. 313,
321, 322; TERRACE V. THOMPSON, 263 U.S. 197, 223, 224; HEIM V. MCCALL,
239 U.S. 175, 193, 194.  IN EACH OF THOSE CASES THIS COURT SUSTAINED
STATE LEGISLATION WHICH APPLIED TO ALIENS ONLY, AGAINST AN ATTACK ON
THE GROUND THAT THE LAWS VIOLATED THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION.  IN EACH CASE, HOWEVER, THE COURT WAS CAREFUL TO POINT
OUT THAT THE STATE LAW WAS NOT IN VIOLATION OF ANY VALID TREATIES
ADOPTED BY THE UNITED STATES, AND IN NO INSTANCE DID IT APPEAR THAT
CONGRESS HAD PASSED LEGISLATION ON THE SUBJECT.  IN THE ONLY CASE OF
THIS TYPE IN WHICH THERE WAS AN OUTSTANDING TREATY PROVISION IN
CONFLICT WITH THE STATE LAW, THIS COURT HELD THE STATE LAW INVALID. 
ASAKURA V. SEATTLE, 265 U.S. 332. 

FN24  YICK WO V. HOPKINS, 118 U.S. 356, 369. 

FN25  8 U.S.C. SECS. 152, 373, 377(C), 382, 398, 399(A). 

FN26  CF. PRIGG V. PENNSYLVANIA, 16 PET. 539, 622, 623. 

FN27  AS EARLY AS 1641, IN THE MASSACHUSETTS "BODY OF LIBERTIES," WE
FIND THE STATEMENT THAT "EVERY PERSON WITHIN THIS JURISDICTION, WHETHER
INHABITANT OR FORREINER, SHALL ENJOY THE SAME JUSTICE AND LAW THAT IS
GENERALL FOR THE PLANTATION  ...  "    FN28  1 STAT. 570, 577. 

FN29  SEE FIELD, J., DISSENTING IN FONG YUE TING V. UNITED STATES,
149 U.S. 698, 746-750.  CF. 84 CONG. REC. 9534. 

FN30  QUOTED IN FONG YUE TING V. UNITED STATES, SUPRA, 743. 

FN31  E.G., H.R. 9101 AND H.R. 9147, 71ST CONG., 2ND SESSION; SEE 72
CONG. REC. 3886. 

FN32  THE REQUIREMENT THAT CARDS BE CARRIED AND EXHIBITED HAS ALWAYS
BEEN REGARDED AS ONE OF THE MOST OBJECTIONABLE FEATURES OF PROPOSED
REGISTRATION SYSTEMS, FOR IT IS THOUGHT TO BE A FEATURE THAT BEST LENDS
ITSELF TO TYRANNY AND INTIMIDATION.  CONGRESSMAN CELLER, SPEAKING IN
1928 OF THE REPEATED DEFEAT OF REGISTRATION BILLS AND OF AN ATTEMPT BY
THE SECRETARY OF LABOR TO REQUIRE REGISTRATION OF INCOMING ALIENS BY
EXECUTIVE ORDER, SAID:  "BUT HERE IS THE REAL VICE OF THE SITUATION AND
THE CORE OF THE DIFFICULTY:  "THE ADMITTED ALIEN,' AS THE ORDER STATES,
'SHOULD BE CAUTIONED TO PRESENT (HIS CARD) FOR INSPECTION IF AND WHEN
SUBSEQUENTLY REQUESTED SO TO DO BY AN OFFICER OF THE IMMIGRATION
SERVICE.'"  70 CONG. REC. 190. 

FN33  CONGRESSMAN SMITH, WHO INTRODUCED THE ORIGINAL OF THE BILL THAT
AS FINALLY ADOPTED BECAME THE 1940 ACT, SAID IN COMMITTEE:  "THE
DRAFTING OF THE BILL IS  ...  A CODIFICATION OF MEASURES THAT HAVE BEEN
OFFERED FROM TIME TO TIME.  ...  I HAVE TRIED TO ELIMINATE FROM THE
BILLS THAT HAVE BEEN OFFERED ON THE SUBJECT THOSE WHICH SEEMED TO ME
WOULD CAUSE MUCH CONTROVERSY."  HEARINGS BEFORE SUBCOMMITTEE NO. 3 OF
THE HOUSE JUDICIARY COMMITTEE, H.R. 5138, APRIL 12, 1939, P. 71. 

FN34  CONG. REC., JUNE 15, 1940, P. 12620.  SENATOR CONNALLY MADE
THIS STATEMENT IN EXPLAINING WHY IT HAD BEEN FOUND NECESSARY TO
SUBSTITUTE A NEW BILL FOR THE BILL ORIGINALLY SENT TO THE SENATE BY THE
HOUSE.  IN DETAILING THE CARE THAT HAD BEEN TAKEN IN THE DRAFTING OF
THE NEW MEASURE, HE SAID:  "WE REGRETTED VERY MUCH THAT WE HAD TO
DISCARD ENTIRELY THE BILL PASSED BY THE HOUSE AND SUBSTITUTE A NEW BILL
AFTER THE ENACTING CLAUSE.  HOWEVER, WE CALLED IN MR. MURPHY, OF THE
DRAFTING SERVICE, WHO WORKED WITH US SOME 2 WEEKS EVERY DAY  ...  WE
CALLED ON THE DEPARTMENT OF JUSTICE, AND HAD THE SOLICITOR GENERAL WITH
US. WE CALLED IN THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION,
AND TOGETHER WE WENT OVER ALL THE EXISTING LAWS, AND WORKED THE NEW
PROVISIONS INTO THE EXISTING LAWS, SO AS TO MAKE A HARMONIOUS WHOLE." 
THIS SENATE VERSION WAS SUBSTANTIALLY THE ACT AS FINALLY ADOPTED; THE
ALIEN REGISTRATION PROVISIONS ARE TITLE III OF A BROADER ACT DEALING
WITH DEPORTABLE OFFENSES AND ADVOCACY OF DISLOYALTY IN THE ARMED
FORCES. 

FN35  IN FEDERALIST PAPER NO. 42, THE REASONS FOR GIVING THIS POWER
TO THE FEDERAL GOVERNMENT ARE THUS EXPLAINED:  "BY THE LAWS OF SEVERAL
STATES, CERTAIN DESCRIPTIONS OF ALIENS, WHO HAD RENDERED THEMSELVES
OBNOXIOUS, WERE LAID UNDER INTERDICTS INCONSISTENT NOT ONLY WITH THE
RIGHTS OF CITIZENSHIP BUT WITH THE PRIVILEGE OF RESIDENCE.  WHAT WOULD
HAVE BEEN THE CONSEQUENCE, IF SUCH PERSONS, BY RESIDENCE OR OTHERWISE,
HAD ACQUIRED THE CHARACTER OF CITIZENS UNDER THE LAWS OF ANOTHER STATE
...  ?  WHATEVER THE LEGAL CONSEQUENCES MIGHT HAVE BEEN, OTHER
CONSEQUENCES WOULD PROBABLY HAVE RESULTED, OF TOO SERIOUS A NATURE NOT
TO BE PROVIDED AGAINST.  THE NEW CONSTITUTION HAS ACCORDINGLY, WITH
GREAT PROPRIETY, MADE PROVISION AGAINST THEM, AND ALL OTHERS PROCEEDING
FROM THE DEFECT OF THE CONFEDERATION ON THIS HEAD, BY AUTHORIZING THE
GENERAL GOVERNMENT TO ESTABLISH A UNIFORM RULE OF NATURALIZATION
THROUGHOUT THE UNITED STATES." 

FN36  THAT THE CONGRESSIONAL DECISION TO PUNISH ONLY WILFUL
TRANSGRESSIONS WAS DELIBERATE RATHER THAN INADVERTENT IS CONCLUSIVELY
DEMONSTRATED BY THE DEBATES ON THE BILL.  E.G., CONG. REC., JUNE 15,
1940, P. 12621.  AND SEE NOTE 37, INFRA. 

FN37  CONGRESSMAN CELLER, RANKING MEMBER OF THE HOUSE JUDICIARY
COMMITTEE WHICH REPORTED OUT THE BILL, SAID IN STATING HIS INTENTION OF
VOTING FOR THE 1940 ACT:  "MR. SPEAKER, JUDGING THE TEMPER OF THE
NATION, I BELIEVE THIS COMPROMISE REPORT IS THE BEST TO BE HAD UNDER
THE CIRCUMSTANCES AND I SHALL VOTE FOR IT  ...  FURTHERMORE, I THINK
THE CONFEREES HAVE DONE A GOOD JOB BECAUSE THE PUNISHMENT IS NOT TOO
GREAT  ...  THERE MUST BE PROOF  ...  THAT THE ALIEN WILLFULLY REFUSES
TO REGISTER  ...  I DREW THE MINORITY REPORT AGAINST THIS BILL
ORIGINALLY, BECAUSE IT PROVIDED SOME VERY HARSH PROVISIONS AGAINST
ALIENS.  SOME OF THE HARSHNESS AND SOME OF THE SEVERITY OF THE ORIGINAL
BILL HAVE BEEN ELIMINATED  ...  I MUST ADMIT THAT IT IS THE BEST TO BE
HAD UNDER THE CIRCUMSTANCES."  CONG. REC., JUNE 22, 1940, PP. 13468-9. 

MR. JUSTICE STONE, DISSENTING: 

I THINK THE JUDGMENT BELOW SHOULD BE REVERSED. 

UNDOUBTEDLY CONGRESS, IN THE EXERCISE OF ITS POWER TO LEGISLATE IN
AID OF POWERS GRANTED BY THE CONSTITUTION TO THE NATIONAL GOVERNMENT
MAY GREATLY ENLARGE THE EXERCISE OF FEDERAL AUTHORITY AND TO AN EXTENT
WHICH NEED NOT NOW BE DEFINED, IT MAY, IF SUCH IS ITS WILL, THUS
SUBTRACT FROM THE POWERS WHICH MIGHT OTHERWISE BE EXERCISED BY THE
STATES.  ASSUMING, AS THE COURT HOLDS, THAT CONGRESS COULD
CONSTITUTIONALLY SET UP AN EXCLUSIVE REGISTRATION SYSTEM FOR ALIENS, I
THINK IT HAS NOT DONE SO AND THAT IT IS NOT THE PROVINCE OF THE COURTS
TO DO THAT WHICH CONGRESS HAS FAILED TO DO. 

AT A TIME WHEN THE EXERCISE OF THE FEDERAL POWER IS BEING RAPIDLY
EXPANDED THROUGH CONGRESSIONAL ACTION, IT IS DIFFICULT TO OVERSTATE THE
IMPORTANCE OF SAFEGUARDING AGAINST SUCH DIMINUTION OF STATE POWER BY
VAGUE INFERENCES AS TO WHAT CONGRESS MIGHT HAVE INTENDED IF IT HAD
CONSIDERED THE MATTER OR BY REFERENCE TO OUR OWN CONCEPTIONS OF A
POLICY WHICH CONGRESS HAS NOT EXPRESSED AND WHICH IS NOT PLAINLY TO BE
INFERRED FROM THE LEGISLATION WHICH IT HAS ENACTED.  CF. GRAVES V.
O'KEEFE, 306 U.S. 466, 479, 480, 487.  THE JUDICIARY OF THE UNITED
STATES SHOULD NOT ASSUME TO STRIKE DOWN A STATE LAW WHICH IS
IMMEDIATELY CONCERNED WITH THE SOCIAL ORDER AND SAFETY OF ITS PEOPLE
UNLESS THE STATUTE PLAINLY AND PALPABLY VIOLATES SOME RIGHT GRANTED OR
SECURED TO THE NATIONAL GOVERNMENT BY THE CONSTITUTION OR SIMILARLY
ENCROACHES UPON THE EXERCISE OF SOME AUTHORITY DELEGATED TO THE UNITED
STATES FOR THE ATTAINMENT OF OBJECTS OF NATIONAL CONCERN. 

THE OPINION OF THE COURT DOES NOT DENY, AND I SEE NO REASON TO DOUBT
THAT THE PENNSYLVANIA REGISTRATION STATUTE, WHEN PASSED, WAS A LAWFUL
EXERCISE OF THE CONSTITUTIONAL POWER OF THE STATE.  WITH EXCEPTIONS NOT
NOW MATERIAL IT REQUIRES ALIENS RESIDENT IN THE STATE, WHO HAVE NOT
DECLARED THEIR INTENTION TO BECOME CITIZENS, TO REGISTER ANNUALLY, TO
PAY A REGISTRATION FEE OF $1.00, AND TO CARRY A REGISTRATION
IDENTIFICATION CARD.  IT AFFORDS TO THE STATE A CONVENIENT METHOD OF
ASCERTAINING THE NUMBER AND WHEREABOUTS OF ALIENS WITHIN THE STATE,
WHICH IT IS ENTITLED TO KNOW, AND A MEANS OF THEIR IDENTIFICATION.  IT
IS AN AVAILABLE AID IN THE ENFORCEMENT OF A NUMBER OF STATUTES OF THE
STATE APPLICABLE TO ALIENS WHOSE CONSTITUTIONAL VALIDITY HAS NOT BEEN
QUESTIONED, ONE OF WHICH HAS BEEN HELD BY THIS COURT NOT TO INFRINGE
THE FOURTEENTH AMENDMENT.  PATSONE V. PENNSYLVANIA, 232 U.S. 138.  FN1 

THE NATIONAL GOVERNMENT HAS EXCLUSIVE CONTROL OVER THE ADMISSION OF
ALIENS INTO THE UNITED STATES BUT, AFTER ENTRY, AN ALIEN RESIDENT
WITHIN A STATE, LIKE A CITIZEN, IS SUBJECT TO THE POLICE POWERS OF THE
STATE AND, IN THE EXERCISE OF THAT POWER, STATE LEGISLATURES MAY PASS
LAWS APPLICABLE EXCLUSIVELY TO ALIENS SO LONG AS THE DISTINCTION TAKEN
BETWEEN ALIENS AND CITIZENS IS NOT SHOWN TO BE WITHOUT RATIONAL BASIS. 
PATSONE V. PENNSYLVANIA, SUPRA; TERRACE V. THOMPSON, 263 U.S. 197;
COCKRILL V. CALIFORNIA, 268 U.S. 258; OHIO V. DECKEBACH, 274 U.S. 392,
396, AND CASES CITED.  THE FEDERAL GOVERNMENT HAS NO GENERAL POLICE
POWER OVER ALIENS AND, SO FAR AS IT CAN EXERCISE ANY CONTROL OVER THEM,
IT MUST BE IN THE PURSUANCE OF A POWER GRANTED TO IT BY THE
CONSTITUTION. 

THE OPINION OF THE COURT DOES NOT SUPPORT ITS CONCLUSION UPON THE
GROUND THAT IN THE ABSENCE OF FEDERAL LEGISLATION ON THE SUBJECT THERE
IS ANY WANT OF POWER IN THE STATE TO PASS THE PRESENT STATUTE.  IT DOES
NOT SUGGEST, NOR COULD IT WELL DO SO, THAT IN THE ABSENCE OF
CONGRESSIONAL ACTION THE PENNSYLVANIA STATUTE EITHER BY ITS OWN TERMS
OR IN ITS OPERATION INTERFERES WITH OR OBSTRUCTS THE AUTHORITY
CONFERRED BY THE CONSTITUTION ON THE NATIONAL GOVERNMENT OVER THE
NATIONAL DEFENSE, THE CONDUCT OF FOREIGN RELATIONS, ITS POWERS OVER
IMMIGRATION AND DEPORTATION OF ALIENS OR THEIR NATURALIZATION.  THE
EXISTENCE OF THE NATIONAL POWER TO CONDUCT FOREIGN RELATIONS AND
NEGOTIATE TREATIES DOES NOT FORECLOSE STATE LEGISLATION DEALING
EXCLUSIVELY WITH ALIENS AS SUCH.  THIS COURT HAS CONSISTENTLY HELD THAT
TREATIES OF THE UNITED STATES FOR THE PROTECTION OF RESIDENT ALIENS DO
NOT SUPERSEDE SUCH LEGISLATION UNLESS THEY CONFLICT WITH IT.  SEE OHIO
V. DECKEBACH, SUPRA, 395 AND CASES CITED; TODOK V. UNION STATE BANK,
281 U.S. 449, 454 ET SEQ.; CF. NIELSEN V. JOHNSON, 279 U.S. 47.  IT IS
NOT CONTENDED THAT THE PENNSYLVANIA STATUTE CONFLICTS WITH ANY TERM OF
ANY TREATY. 

THE QUESTION PRESENTED HERE IS A DIFFERENT ONE FROM THAT CONSIDERED
IN HENDERSON V. MAYOR OF NEW YORK, 92 U.S. 259, 273, WHERE THE STATE
TAXATION AND REGISTRATION OF ALL PERSONS ENTERING THE UNITED STATES
THROUGH A PORT OF THE STATE WAS HELD TO BE A REGULATION OF FOREIGN
COMMERCE FORBIDDEN TO THE STATES BY THE CONSTITUTION, EVEN THOUGH
CONGRESS HAD PASSED NO SIMILAR LEGISLATION.  THE REGISTRATION OF ALIENS
RESIDENT IN A STATE IS NOT A REGULATION OF INTERSTATE OR FOREIGN
COMMERCE OR OF THE ENTRY OR DEPORTATION OF ALIENS AND WOULD SEEM TO BE
NO MORE AN EXERCISE OF ANY POWER GRANTED TO THE NATIONAL GOVERNMENT, OR
AN ENCROACHMENT UPON IT, THAN IS A STATE CENSUS FOR LOCAL PURPOSES AN
INFRINGEMENT OF THE NATIONAL AUTHORITY TO TAKE A NATIONAL CENSUS FOR
NATIONAL PURPOSES.  IT IS THE FEDERAL ACT ALONE WHICH IS POINTED TO AS
CURTAILING OR WITHDRAWING THE RESERVED POWER OF THE STATE OVER ITS
ALIEN POPULATION. 

TITLE I OF THE FEDERAL STATUTE PENALIZES CERTAIN ACTS OF ANY PERSONS
INTENDED TO INTERFERE WITH, IMPAIR OR INFLUENCE THE LOYALTY, MORALE OR
DISCIPLINE OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES.  TITLE
II, AMONG OTHER THINGS, PROVIDES FOR THE DEPORTATION OF ALIENS AFTER
CONVICTION AND SERVICE OF SENTENCE FOR VIOLATIONS OF THE PROVISIONS OF
TITLE I. AND THE EVIDENT PURPOSE OF THE REGISTRATION PROVISIONS OF
TITLE III IS TO AID IN THE ENFORCEMENT OF THE OTHER PROVISIONS OF THE
ACT AND IN THE PREVENTION OF SUBVERSIVE ACTIVITIES OF ALIENS RESIDENT
WITHIN THE UNITED STATES.  IT REQUIRES THE REGISTRATION AND
FINGERPRINTING OF ALL ALIENS OVER FOURTEEN YEARS OF AGE, WITH
EXCEPTIONS NOT NOW MATERIAL, WHO ARE NOT REGISTERED AND FINGERPRINTED
UPON ENTERING THE COUNTRY.  REGISTERED ALIENS RESIDENT IN THE UNITED
STATES ARE REQUIRED TO NOTIFY THE COMMISSIONER OF IMMIGRATION OF ANY
CHANGE OF RESIDENCE AND PENALTIES ARE IMPOSED FOR WILFUL NON
COMPLIANCE.  AS CONSTRUED AND APPLIED BY THE OPINION OF THE COURT THE
FEDERAL ACT DENIES TO THE STATES THE PRACTICABLE MEANS OF IDENTIFYING
THEIR ALIEN RESIDENTS AND OF RECORDING THEIR WHEREABOUTS AND IT
WITHHOLDS FROM THE STATES THE BENEFIT OF THE INFORMATION SECURED UNDER
THE FEDERAL ACT EXCEPT INSOFAR AS IT MAY BE MADE AVAILABLE TO THEM ON
APPLICATION TO THE ATTORNEY GENERAL. 

IT IS CONCEDED THAT THE FEDERAL ACT IN OPERATION DOES NOT AT ANY
POINT CONFLICT WITH THE STATE STATUTE, AND IT DOES NOT BY ITS TERMS
PURPORT TO CONTROL OR RESTRICT STATE AUTHORITY IN ANY PARTICULAR.  BUT
THE GOVERNMENT SAYS THAT CONGRESS BY PASSING THE FEDERAL ACT, HAS
"OCCUPIED THE FIELD" SO AS TO PRECLUDE THE ENFORCEMENT OF THE STATE
STATUTE AND THAT THE ADMINISTRATION OF THE LATTER MIGHT WELL CONFLICT
WITH CONGRESSIONAL POLICY TO PROTECT THE CIVIL LIBERTY OF ALIENS
AGAINST THE HARASSMENTS OF INTRUSIVE POLICE SURVEILLANCE. 

LITTLE AID CAN BE DERIVED FROM THE VAGUE AND ILLUSORY BUT OFTEN
REPEATED FORMULA THAT CONGRESS "BY OCCUPYING THE FIELD" HAS EXCLUDED
FROM IT ALL STATE LEGISLATION.  EVERY ACT OF CONGRESS OCCUPIES SOME
FIELD, BUT WE MUST KNOW THE BOUNDARIES OF THAT FIELD BEFORE WE CAN SAY
THAT IT HAS PRECLUDED A STATE FROM THE EXERCISE OF ANY POWER RESERVED
TO IT BY THE CONSTITUTION.  TO DISCOVER THE BOUNDARIES WE LOOK TO THE
FEDERAL STATUTE ITSELF, READ IN THE LIGHT OF ITS CONSTITUTIONAL SETTING
AND ITS LEGISLATIVE HISTORY. 

FEDERAL STATUTES PASSED IN AID OF A GRANTED POWER OBVIOUSLY SUPERSEDE
STATE STATUTES WITH WHICH THEY CONFLICT.  PENNSYLVANIA R. CO. V.
ILLINOIS BRICK CO., 297 U.S. 447, 459.  SEE KELLY V. WASHINGTON, 302
U.S. 1, 10.  BUT WE ARE POINTED TO NO SUCH CONFLICT HERE.  IN THE
EXERCISE OF SUCH POWERS CONGRESS ALSO HAS WIDE SCOPE FOR PROHIBITING
STATE REGULATION OF MATTERS WHICH CONGRESS MAY, BUT HAS NOT UNDERTAKEN
TO REGULATE ITSELF.  BUT NO WORDS OF THE STATUTE OR OF ANY COMMITTEE
REPORT, OR ANY CONGRESSIONAL DEBATE INDICATE THAT CONGRESS INTENDED TO
WITHDRAW FROM THE STATES ANY PART OF THEIR CONSTITUTIONAL POWER OVER
ALIENS WITHIN THEIR BORDERS.  WE MUST TAKE IT THAT CONGRESS WAS NOT
UNAWARE THAT SOME NINETEEN STATES HAVE STATUTES OR ORDINANCES REQUIRING
SOME FORM OF REGISTRATION FOR ALIENS, SEVEN OF THEM DATING FROM THE
LAST WAR.  THE REPEAL OF THIS LEGISLATION IS NOT TO BE INFERRED FROM
THE SILENCE OF CONGRESS IN ENACTING A LAW WHICH AT NO POINT CONFLICTS
WITH THE STATE LEGISLATION AND IS HARMONIOUS WITH IT. 

THE EXERCISE OF THE FEDERAL LEGISLATIVE POWER IS CERTAINLY NOT MORE
POTENT TO CURTAIL THE EXERCISE OF STATE POWER OVER ALIENS THAN IS THE
EXERCISE OF THE TREATY MAKING POWER.  YET AS WE HAVE SEEN NO TREATY HAS
THAT EFFECT UNLESS IT CONFLICTS WITH A STATE STATUTE.  THE PASSAGE OF
THE NATIONAL PURE FOOD & DRUG ACT DID NOT PRECLUDE THE STATES FROM
SUPPLEMENTING IT BY LIKE ADDITIONAL REQUIREMENTS NOT CONFLICTING WITH
THOSE OF THE CONGRESSIONAL ACT.  SAVAGE V. JONES, 225 U.S. 501.  THE
ENACTMENT OF FEDERAL LAWS FOR THE INSPECTION, AS A SAFETY MEASURE, OF
VESSELS PLYING NAVIGABLE WATERS OF THE UNITED STATES DOES NOT FORECLOSE
THE STATES FROM LIKE INSPECTION OF THE HULL AND MACHINERY OF SUCH
VESSELS WITHIN THE STATE, TO INSURE SAFETY AND DETERMINE SEAWORTHINESS,
DEMANDS WHICH LIE OUTSIDE THE FEDERAL REQUIREMENTS.  KELLY V.
WASHINGTON, SUPRA.  THE PASSAGE OF THE NATIONAL DRAFT AND THE NATIONAL
ESPIONAGE ACTS WITH THEIR PENALTIES FOR VIOLATION, DID NOT PRECLUDE A
STATE FROM MAKING IT A MISDEMEANOR FOR ANY PERSON TO ADVOCATE THAT
CITIZENS OF THE STATE REFUSE TO AID OR ASSIST THE UNITED STATES IN
CARRYING ON A WAR.  GILBERT V. MINNESOTA, 254 U.S. 325; CF. HALTER V.
NEBRASKA, 204 U.S. 34; SEE ALSO REID V. COLORADO, 187 U.S. 137; CAREY
V. SOUTH DAKOTA, 250 U.S. 118; DICKSON V. UHLMANN GRAIN CO., 288 U.S.
188; MINTZ V. BALDWIN, 289 U.S. 346; MAURER V. HAMILTON, 309 U.S. 598,
614.  THESE ARE BUT A FEW OF THE MANY EXAMPLES OF THE LONG ESTABLISHED
PRINCIPLE OF CONSTITUTIONAL INTERPRETATION THAT AN EXERCISE BY THE
STATE OF ITS POLICE POWER, WHICH WOULD BE VALID IF NOT SUPERSEDED BY
FEDERAL ACTION, IS SUPERSEDED ONLY WHERE THE REPUGNANCE OR CONFLICT IS
SO "DIRECT AND POSITIVE" THAT THE TWO ACTS CANNOT "BE FAIRLY RECONCILED
OR CONSISTENTLY STAND TOGETHER."  SINNOT V. DAVENPORT, 22 HOW.  227,
243; KELLY V. WASHINGTON, SUPRA, 10.  A FEDERAL REGISTRATION ACT
DESIGNED TO AID IN ENFORCING FEDERAL STATUTES AND TO PREVENT SUBVERSIVE
ACTIVITIES AGAINST THE NATIONAL GOVERNMENT CAN STAND CONSISTENTLY WITH
A LIKE STATUTE APPLICABLE TO RESIDENTS PASSED IN AID OF STATE LAWS AND
AS A SAFEGUARD TO PROPERTY AND PERSONS WITHIN THE STATE, AS READILY AS
THE FEDERAL AND STATE LAWS WHICH ANNUALLY DEMAND TWO SEPARATE INCOME
TAX RETURNS OF THE CITIZEN. 

THE FOURTEENTH AMENDMENT GUARANTEES THE CIVIL LIBERTIES OF ALIENS AS
WELL AS OF CITIZENS AGAINST INFRINGEMENT BY STATE ACTION IN THE
ENACTMENT OF LAWS AND THEIR ADMINISTRATION AS WELL.  AGAIN WE ARE
POINTED TO NOTHING IN THE FEDERAL ALIEN REGISTRATION ACT OR IN THE
RECORDS OF ITS PASSAGE THROUGH CONGRESS TO INDICATE THAT CONGRESS
THOUGHT THOSE GUARANTEES INADEQUATE OR THAT IN REQUIRING REGISTRATION
OF ALL ALIENS IT UNDERTOOK TO PREVENT THE STATES FROM PASSING ANY
REGISTRATION MEASURE OTHERWISE CONSTITUTIONAL.  TRUE, IT WAS CAREFUL TO
BRING THE NEW LEGISLATION INTO HARMONY WITH EXISTING FEDERAL STATUTES
AND TO AVOID, SO FAR AS CONSISTENT WITH ITS PURPOSES, ANY HARSH OR
OPPRESSIVE REQUIREMENTS, BUT IN ALL THIS THERE IS TO BE FOUND NO
WARRANT FOR SAYING THAT THERE WAS A CONGRESSIONAL PURPOSE TO CURTAIL
THE EXERCISE OF ANY CONSTITUTIONAL POWER OF THE STATE OVER ITS ALIEN
RESIDENTS OR TO PROTECT THE ALIEN FROM STATE ACTION WHICH THE
CONSTITUTION PROHIBITS AND WHICH THE FEDERAL COURTS STAND READY TO
PREVENT.  SEE HAGUE V. C.I.O., 307 U.S. 496, 518, 525 ET SEQ. 

HERE COMPLIANCE WITH THE STATE LAW DOES NOT PRECLUDE OR EVEN
INTERFERE WITH COMPLIANCE WITH THE ACT OF CONGRESS.  THE ENFORCEMENT OF
BOTH ACTS INVOLVES NO MORE INCONSISTENCY, NO MORE INCONVENIENCE TO THE
INDIVIDUAL, AND NO MORE EMBARRASSMENT TO EITHER GOVERNMENT THAN DO ANY
OF THE LAWS, STATE AND NATIONAL, SUCH AS REVENUE LAWS, LICENSING LAWS,
OR POLICE REGULATIONS, WHERE INTERSTATE COMMERCE IS INVOLVED, WHICH ARE
EQUALLY APPLIED TO THE CITIZEN BECAUSE HE IS SUBJECT, AS ARE ALIENS, TO
A DUAL SOVEREIGNTY. 

FN1  TIT. 34 SEC. 1311.1001, PURDON'S PENN.  STAT.  ANN., PROHIBITING
HUNTING BY ALIENS, WAS SUSTAINED IN THE PATSONE CASE, 232 U.S. 138. 
CF. TIT. 30 SEC. 240.  OTHER PENNSYLVANIA STATUTES WHOSE VALIDITY HAS
NOT BEEN PASSED UPON REGULATE THE ACTIVITIES OF ALIENS:  TIT. 63,
SETTING FORTH LICENSE REQUIREMENTS FOR THE PRACTICE OF CERTAIN
PROFESSIONS AND OCCUPATIONS, MAKES SPECIAL REQUIREMENTS FOR ALIENS
SEEKING TO PRACTICE AS CERTIFIED PUBLIC ACCOUNTANTS (SEC. 1),
ARCHITECTS (SEC. 22), ENGINEERS (SEC. 137), NURSES (SEC. 202),
PHYSICIANS AND SURGEONS (SEC. 406), AND UNDERTAKERS (SEC. 478C).  THE
REAL PROPERTY HOLDINGS OF ALIENS ARE LIMITED TO 5000 ACRES OF LAND OR
LAND PRODUCING NET INCOME OF $20,000 OR LESS (TITLE 68, SECS. 28, 32). 
TAXES ARE TO BE DEDUCTED FROM THE WAGES OF ALIENS BY THEIR EMPLOYERS
WHEN THE TAX COLLECTOR REQUESTS (TIT. 72, SEC. 5681). 

THE CHIEF JUSTICE AND MR. JUSTICE MCREYNOLDS CONCUR IN THIS OPINION. 
..END :




















SIBBACH V. WILSON & CO., 312 U.S. 1 


NO. 28.  ARGUED DECEMBER 17, 1940.  - DECIDED JANUARY 13, 1941.  - 108
F.2D 415, REVERSED. 


1.  CONGRESS HAS POWER TO REGULATE THE PRACTICE AND PROCEDURE OF
FEDERAL COURTS, AND MAY EXERCISE IT BY DELEGATING TO THE SUPREME OR
OTHER FEDERAL COURTS AUTHORITY TO MAKE RULES NOT INCONSISTENT WITH THE
STATUTES OR CONSTITUTION OF THE UNITED STATES.  P. 9. 

2.  THE ACT OF JUNE 19, 1934, EMPOWERING THE SUPREME COURT TO
PRESCRIBE RULES FOR THE DISTRICT COURTS OF THE UNITED STATES IN CIVIL
ACTIONS, WAS RESTRICTED IN ITS OPERATION TO MATTERS OF PLEADING,
PRACTICE AND PROCEDURE.  P. 10. 

3.  IN SO FAR AS THEY ARE WITHIN THE AUTHORITY GRANTED BY CONGRESS,
THE RULES OF CIVIL PROCEDURE PRESCRIBED BY THE SUPREME COURT UNDER
AUTHORITY OF THE ACT OF JUNE 19, 1934 REPEAL THE CONFORMITY ACT.  P.
10. 

4.  RULE 35 OF THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS
OF THE UNITED STATES, WHICH PROVIDES THAT, IN A SUIT IN WHICH THE
PHYSICAL OR MENTAL CONDITION OF A PARTY IS IN CONTROVERSY, THE COURT
MAY ORDER THE PARTY TO SUBMIT TO A PHYSICAL OR MENTAL EXAMINATION BY A
PHYSICIAN, HELD WITHIN THE AUTHORITY GRANTED BY CONGRESS IN THE ACT OF
JUNE 19, 1934, AND CONSISTENT WITH THE LIMITATION OF THAT ACT THAT THE
RULES PRESCRIBED SHALL NOT ABRIDGE, ENLARGE OR MODIFY THE "SUBSTANTIVE
RIGHTS" OF ANY LITIGANT.  P. 14. 

5.  UNION PACIFIC RY. CO. V. BOTSFORD, 141 U.S. 250, AND CAMDEN &
SUBURBAN RY. V. STETSON, 177 U.S. 172, EXPLAINED.  P. 11. 

6.  RULES 35 AND 37 OF THE RULES OF CIVIL PROCEDURE ARE RULES OF
PROCEDURE, AND THEIR PRESCRIPTION DID NOT EXCEED THE AUTHORITY GRANTED
BY THE ACT OF JUNE 19, 1934 MERELY BECAUSE THEY INVOLVE "IMPORTANT" OR
"SUBSTANTIAL" RIGHTS.  P. 13. 

7.  THAT CONGRESS RESERVED THE POWER TO EXAMINE, BEFORE THEY SHOULD
BECOME EFFECTIVE, RULES PROPOSED PURSUANT TO THE ACT, AND TOOK NO
ADVERSE ACTION IN RESPECT OF RULE 35, INDICATES THAT NO TRANSGRESSION
OF LEGISLATIVE POLICY WAS FOUND.  P. 15. 

8.  REFUSAL TO OBEY AN ORDER UNDER RULE 35 REQUIRING A PARTY TO
SUBMIT TO A PHYSICAL OR MENTAL EXAMINATION IS EXEMPTED BY RULE
37(B)(2)(IV) FROM PUNISHMENT AS FOR A CONTEMPT.  THE REMEDIES FOR SUCH
REFUSAL ARE THOSE ENUMERATED IN RULE 37(B)(2)(I), (II), AND (III).  P.
16. 

9.  THE ACTION OF THE DISTRICT COURT IN THIS CASE, PUNISHING AS FOR
CONTEMPT A REFUSAL TO OBEY AN ORDER UNDER RULE 35 REQUIRING A PLAINTIFF
TO SUBMIT TO A PHYSICAL EXAMINATION, WAS SUCH PLAIN ERROR AS THIS COURT
MAY NOTICE, ALTHOUGH NOT ASSIGNED OR SPECIFIED EITHER IN THE CIRCUIT
COURT OF APPEALS OR HERE.  P. 16. 

SIBBACH V. WILSON & CO., INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 309 U.S. 650, TO REVIEW THE AFFIRMANCE OF AN ORDER
COMMITTING FOR CONTEMPT. 

IT MAY BE THAT AN ORDER COMPELLING THE PLAINTIFF TO SUBMIT TO A
PHYSICAL EXAMINATION DOES NOT DETERMINE THE RIGHT WHICH THE PLAINTIFF
SEEKS TO HAVE ADJUDICATED IN THE LITIGATION, AND IN THAT ASPECT
INVOLVES "PROCEDURE" AND NOT "SUBSTANTIVE LAW."  NEVERTHELESS, THE
ORDER INVADES "SUBSTANTIVE RIGHTS." 

DOES THE FIELD OF "RIGHTS" EXCLUDED FROM THE RULE-MAKING POWER
INCLUDE ONLY THE RIGHTS THAT DETERMINE THE OUTCOME OF LITIGATION, THE
ULTIMATE RIGHTS SOUGHT TO BE ADJUDICATED BY THE LITIGANTS?  CLEARLY,
CONGRESS MAY NOT DELEGATE TO THE COURTS THE POWER TO DECLARE BY RULE
WHAT RIGHTS OF THIS CHARACTER EXIST. 

PROCEDURAL DEVICES MAY INVADE HUMAN RIGHTS THAT THE COMMON LAW HAS
LONG SOUGHT TO PROTECT.  THE DOCTRINE OF THE SEPARATION OF POWERS
ALONE, APART FROM OTHER CONSTITUTIONAL LIMITATIONS, FORBIDS CONGRESS TO
DELEGATE RULE-MAKING POWER AS TO A PROCEDURAL DEVICE OF THIS
CHARACTER.  THE QUESTION IS WHETHER THE PARTICULAR MATTER IS
"EXCLUSIVELY LEGISLATIVE" OR "JUDICIAL." 

IF THE MATTER INVOLVES A GENERAL PRINCIPLE OR A QUESTION OF PUBLIC
POLICY THAT THE LEGISLATURE IS ABLE TO PASS UPON, IT SHOULD NOT BE
DEALT WITH BY A RULE OF COURT, BUT BY A LEGISLATIVE ENACTMENT. 

OBVIOUS EXAMPLES OF PROCEDURAL DEVICES THAT AFFECT IMPORTANT RIGHTS,
AND SO INVOLVE BROAD QUESTIONS OF POLICY, ARE THOSE THAT VIOLATE
CONSTITUTIONAL LIMITATIONS, SUCH AS THE DUE PROCESS CLAUSE.  SEE KRING
V. MISSOURI, 107 U.S. 221. 

COMMON LAW PRIVILEGES AND INHIBITIONS AGAINST TESTIFYING - SUCH AS
THE DISABILITY OF A PARTY TO TESTIFY OR OF ONE SPOUSE TO TESTIFY FOR OR
AGAINST THE OTHER - ARE A PART OF THE LAW OF EVIDENCE AND SO WITHIN THE
FIELD OF "PROCEDURE."  YET, WHETHER OR NOT THEY SHOULD HAVE A PLACE IN
OUR LEGAL SYSTEM IS OF GREAT PUBLIC INTEREST,  - AN IMPORTANT QUESTION
OF PUBLIC POLICY.  MAY CONGRESS DELEGATE TO THE COURTS THE POWER TO
DETERMINE SUCH QUESTIONS BY COURT RULE? 

APPARENTLY CONGRESS BELIEVED, SINCE PROCEDURE MAY EXTEND TO THE LINE
WHERE "SUBSTANTIVE LAW" BEGINS, IT WAS DESIRABLE NOT TO DELEGATE TO THE
COURT THE POWER TO MAKE RULES THAT ABRIDGE, ENLARGE, OR MODIFY SOME
IMPORTANT RIGHTS INVOLVED IN PROCEDURE.  IT IS SIGNIFICANT THAT THE ACT
USES THE WORDS "SUBSTANTIVE RIGHTS" RATHER THAN "SUBSTANTIVE LAW." 

IF RULES OF "PROCEDURE" COULD NOT BE CONSTRUED TO INVOLVE
"SUBSTANTIVE RIGHTS," THE SECOND SENTENCE IN THE ACT WOULD BE
SURPLUSAGE. 

DECISIONS OF THIS COURT INDICATE THAT AN ORDER FOR A PHYSICAL
EXAMINATION MODIFIES SUBSTANTIVE RIGHTS.  UNION PACIFIC RY. CO. V.
BOTSFORD, 141 U.S. 250; CAMDEN & SUBURBAN RY. CO. V. STETSON, 177 U.S.
172. 

RULE 35 IS GROUPED WITH OTHERS UNDER THE HEADING "DEPOSITIONS AND
DISCOVERY."  WHILE IT MAY SEEM TO INVOLVE MERELY A QUESTION OF
DISCOVERY, IN FACT IT DIFFERS MARKEDLY FROM THE OTHER RULES, WHICH
MERELY PERMIT A LITIGANT TO OBTAIN BEFORE TRIAL THE DISCOVERY OF
MATTERS THAT HAVE ALWAYS BEEN PROVABLE AT THE TRIAL BY TESTIMONY
OBTAINABLE BY A SUBPOENA AD TESTIFICANDUM OR A SUBPOENA DUCES TECUM. 
THIS SHIFT DOES NOT INVOLVE A CHANGE IN SUBSTANTIVE RIGHTS.  ALSO,
LITIGANTS HAVE BEEN ABLE TO OBTAIN IN EQUITY SOME OF THE SAME REMEDIES
THAT ARE PROVIDED BY RULES 26, 33, AND 34, WHICH THUS DO NOT EFFECT A
CHANGE IN RIGHTS.  RULE 35, IN PROVIDING A METHOD OF PHYSICAL
EXAMINATION BEFORE TRIAL, WOULD PERMIT WHAT HAS NOT BEEN HERETOFORE
PERMITTED AT THE TRIAL OR AT ANY OTHER STAGE OF THE PROCEEDING.  ALSO,
AS POINTED OUT IN THE STACK CASE, 177 MASS. 155, AN ORDER FOR A
PHYSICAL EXAMINATION WAS NOT PROCURABLE IN EQUITY.  THESE
CONSIDERATIONS SHOW WHY RULE 35 ABRIDGES SUBSTANTIVE RIGHTS WHILE RULES
26, 33, AND 34 DO NOT. 

AS A DISCOVERY DEVICE RULE 35 IS OF LITTLE VALUE, AT LEAST IN A COURT
SITTING IN ILLINOIS, WHERE COMMUNICATIONS BETWEEN PATIENT AND PHYSICIAN
ARE NOT PRIVILEGED.  BY TAKING THE DEPOSITION OF THE PLAINTIFF AND THE
PLAINTIFF'S PHYSICIAN, THE DEFENDANT IS ABLE TO DISCOVER ALL THAT THE
PLAINTIFF KNOWS ABOUT THE PLAINTIFF'S OWN CASE. 

THE LAW OF INDIANA IS INAPPLICABLE.  AN ORDER FOR A PHYSICAL
EXAMINATION IS GOVERNED BY THE LAW OF THE FORUM. 

UNDER THE LAW OF INDIANA, WHERE THIS CAUSE OF ACTION AROSE, THE
COURTS HAVE THE POWER TO ENTER AN ORDER DIRECTING A PHYSICAL
EXAMINATION.  CITY OF SOUTH BEND V. TURNER, 156 IND. 418; ASPY V.
BOTKINS, 160 IND. 170; KOKOMO M. & W. CO. V. WALSH, 58 IND. APP. 182;
LAKE ERIE & W.R. CO. V. GRISWOLD, 72 IND. APP. 265; CITY OF VALPARAISO
V. KINNEY, 75 IND. APP. 660.  THAT MATTERS OF SUBSTANTIVE LAW ARE
CONTROLLED BY THE LAW OF THE STATE WHERE THE CAUSE OF ACTION AROSE WAS
SETTLED BY THIS COURT IN ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 

IF THE MATTER INVOLVED IN THE ORDER IS ONE OF PROCEDURE, THEN IT IS
CONTROLLED BY THE RULES OF CIVIL PROCEDURE. 

CONGRESS HAS THE POWER AND DUTY TO PRESCRIBE THE PROCEDURE IN THE
FEDERAL COURTS, AND THAT POWER CAN BE VALIDLY DELEGATED TO THE COURTS. 
WAYMAN V. SOUTHARD, 10 WHEAT.  1; BEERS V. HAUGHTON, 9 PET. 328; BANK
OF U.S. V. HALSTEAD, 10 WHEAT.  22, 27. 

THE ACT AUTHORIZES RULES COVERING THE ENTIRE FIELD OF PRACTICE AND
PROCEDURE. 

RULE 35 DOES NOT INVOLVE SUBSTANTIVE LAW, NOR ABRIDGE OR MODIFY A
SUBSTANTIVE RIGHT ESTABLISHED BY SUBSTANTIVE LAW.  THE SUBSTANTIVE
RIGHTS IN THIS CASE ARE THOSE OUT OF WHICH THE RIGHT OF ACTION AROSE. 
THE RULE AFFECTS MERELY THE PROCEDURE WHEREBY THAT RIGHT OF ACTION IS
SOUGHT TO BE DETERMINED; IT IS A PART OF THE MEANS WHEREBY THE COURT
DETERMINES THE FACTS UPON WHICH THE RIGHT OF ACTION IS BASED. 

THE FACTS AND OPINION IN UNION PACIFIC RY. CO. V. BOTSFORD, 141 U.S.
250, DEMONSTRATE THAT THE MATTER IS PROCEDURAL. 

CAMDEN & SUBURBAN RY. CO. V. STETSON, 177 U.S. 172, DOES NOT HOLD
THAT THE MATTER IS ONE OF SUBSTANTIVE LAW.  THERE WAS NO QUESTION
BEFORE THE COURT REQUIRING ANY DISTINCTION BETWEEN SUBSTANTIVE AND
PROCEDURAL LAW. 

THE CONTENTION THAT THE TERM "SUBSTANTIVE RIGHTS" MEANS RIGHTS THAT
ARE IMPORTANT OR OF SUBSTANCE IS UNTENABLE.  NO LITIGANT HAS A
SUBSTANTIVE RIGHT IN ANY KIND OF PROCEDURE.  LURIA V. UNITED STATES,
231 U.S. 9; OCHOA V. HERNANDEZ, 230 U.S. 139; BRONSON V. KINZIE, 1
HOW.  311; MCCRACKEN V. HAYWARD, 2 HOW.  608; HOME BLDG. & LOAN ASSN.
V. BLAISDELL, 290 U.S. 398. 

THE COURT IS ASKED TO ADOPT AN ENTIRELY NEW THEORY AND TO PLACE THE
DIVIDING LINE WITH REFERENCE TO THE RULE-MAKING POWER, NOT BETWEEN
SUBSTANTIVE LAW AND PROCEDURAL LAW BUT BETWEEN TWO CLASSES OF
PROCEDURAL LAW.  ONE OF THESE WOULD INCLUDE ORDINARY MATTERS AND BE
WITHIN THE RULE-MAKING POWER.  THE OTHER WOULD INCLUDE SUBSTANTIAL AND
IMPORTANT MATTERS AND NOT BE WITHIN THE RULE-MAKING POWER.  SUCH A
THEORY WOULD MAKE THE PRACTICE AND PROCEDURE OF THE FEDERAL COURTS FAR
MORE CONFUSING THAN IT WAS BEFORE THE RULES WERE PROMULGATED. 

MOREOVER, ANY SUCH THEORY WOULD NULLIFY MANY OF THE RULES.  A CASUAL
REVIEW OF MERELY THE HEADINGS WILL SHOW THAT MANY DEAL WITH
"SUBSTANTIAL" AND "IMPORTANT" MATTERS. 

RULE 35 DOES NOT DISCRIMINATE AGAINST PLAINTIFFS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE CALLS FOR DECISION AS TO THE VALIDITY OF RULES 35 AND 37 OF
THE RULES OF CIVIL PROCEDURE FOR DISTRICT COURTS OF THE UNITED STATES. 
FN1 

IN AN ACTION BROUGHT BY THE PETITIONER IN THE DISTRICT COURT FOR
NORTHERN ILLINOIS TO RECOVER DAMAGES FOR BODILY INJURIES, INFLICTED IN
INDIANA, RESPONDENT ANSWERED DENYING THE ALLEGATIONS OF THE COMPLAINT,
AND MOVED FOR AN ORDER REQUIRING THE PETITIONER TO SUBMIT TO A PHYSICAL
EXAMINATION BY ONE OR MORE PHYSICIANS APPOINTED BY THE COURT TO
DETERMINE THE NATURE AND EXTENT OF HER INJURIES.  THE COURT ORDERED
THAT THE PETITIONER SUBMIT TO SUCH AN EXAMINATION BY A PHYSICIAN SO
APPOINTED. 

COMPLIANCE HAVING BEEN REFUSED, THE RESPONDENT OBTAINED AN ORDER TO
SHOW CAUSE WHY THE PETITIONER SHOULD NOT BE PUNISHED FOR CONTEMPT.  IN
RESPONSE THE PETITIONER CHALLENGED THE AUTHORITY OF THE COURT TO ORDER
HER TO SUBMIT TO THE EXAMINATION, ASSERTING THAT THE ORDER WAS VOID. 
IT APPEARED THAT THE COURTS OF INDIANA, THE STATE WHERE THE CAUSE OF
ACTION AROSE, HOLD SUCH AN ORDER PROPER,  FN2  WHEREAS THE COURTS OF
ILLINOIS, THE STATE IN WHICH THE TRIAL COURT SAT, HOLD THAT SUCH AN
ORDER CANNOT BE MADE.  FN3  NEITHER STATE HAS ANY STATUTE GOVERNING THE
MATTER. 

THE COURT ADJUDGED THE PETITIONER GUILTY OF CONTEMPT, AND DIRECTED
THAT SHE BE COMMITTED UNTIL SHE SHOULD OBEY THE ORDER FOR EXAMINATION
OR OTHERWISE SHOULD BE LEGALLY DISCHARGED FROM CUSTODY.  THE PETITIONER
APPEALED. 

THE CIRCUIT COURT OF APPEALS DECIDED THAT RULE 35, WHICH AUTHORIZES
AN ORDER FOR A PHYSICAL EXAMINATION IN SUCH A CASE, IS VALID, AND
AFFIRMED THE JUDGMENT.  FN4  THE WRIT OF CERTIORARI WAS GRANTED BECAUSE
OF THE IMPORTANCE OF THE QUESTION INVOLVED. 

THE RULES OF CIVIL PROCEDURE WERE PROMULGATED UNDER THE AUTHORITY OF
THE ACT OF JUNE 19, 1934, FN5  WHICH IS: 

"BE IT ENACTED  ...  THAT THE SUPREME COURT OF THE UNITED STATES
SHALL HAVE THE POWER TO PRESCRIBE, BY GENERAL RULES, FOR THE DISTRICT
COURTS OF THE UNITED STATES AND FOR THE COURTS OF THE DISTRICT OF
COLUMBIA, THE FORMS OF PROCESS, WRITS, PLEADINGS, AND MOTIONS, AND THE
PRACTICE AND PROCEDURE IN CIVIL ACTIONS AT LAW.  SAID RULES SHALL
NEITHER ABRIDGE, ENLARGE, NOR MODIFY THE SUBSTANTIVE RIGHTS OF ANY
LITIGANT.  THEY SHALL TAKE EFFECT SIX MONTHS AFTER THEIR PROMULGATION,
AND THEREAFTER ALL LAWS IN CONFLICT THEREWITH SHALL BE OF NO FURTHER
FORCE OR EFFECT. 

"SEC. 2.  THE COURT MAY AT ANY TIME UNITE THE GENERAL RULES
PRESCRIBED BY IT FOR CASES IN EQUITY WITH THOSE IN ACTIONS AT LAW SO AS
TO SECURE ONE FORM OF CIVIL ACTION AND PROCEDURE FOR BOTH: PROVIDED,
HOWEVER, THAT IN SUCH UNION OF RULES THE RIGHT OF TRIAL BY JURY AS AT
COMMON LAW AND DECLARED BY THE SEVENTH AMENDMENT TO THE CONSTITUTION
SHALL BE PRESERVED TO THE PARTIES INVIOLATE.  SUCH UNITED RULES SHALL
NOT TAKE EFFECT UNTIL THEY SHALL HAVE BEEN REPORTED TO CONGRESS BY THE
ATTORNEY GENERAL AT THE BEGINNING OF A REGULAR SESSION THEREOF AND
UNTIL AFTER THE CLOSE OF SUCH SESSION." 

THE TEXT OF THE RELEVANT PORTIONS OF RULES 35 AND 37 IS: 

"RULE 35.  PHYSICAL AND MENTAL EXAMINATION OF PERSONS. 

"(A)  ORDER FOR EXAMINATION.  IN AN ACTION IN WHICH THE MENTAL OR
PHYSICAL CONDITION OF A PARTY IS IN CONTROVERSY, THE COURT IN WHICH THE
ACTION IS PENDING MAY ORDER HIM TO SUBMIT TO A PHYSICAL OR MENTAL
EXAMINATION BY A PHYSICIAN.  THE ORDER MAY BE MADE ONLY ON MOTION FOR
GOOD CAUSE SHOWN AND UPON NOTICE TO THE PARTY TO BE EXAMINED AND TO ALL
OTHER PARTIES AND SHALL SPECIFY THE TIME, PLACE, MANNER, CONDITIONS,
AND SCOPE OF THE EXAMINATION AND THE PERSON OR PERSONS BY WHOM IT IS TO
BE MADE." 

"RULE 37.  REFUSAL TO MAKE DISCOVERY:  CONSEQUENCES. 

"(A)  REFUSAL TO ANSWER.  ... 

"(B)  FAILURE TO COMPLY WITH ORDER. 

(1)  CONTEMPT.  IF A PARTY OR OTHER WITNESS REFUSES TO BE SWORN OR
REFUSES TO ANSWER ANY QUESTION AFTER BEING DIRECTED TO DO SO BY THE
COURT IN THE DISTRICT IN WHICH THE DEPOSITION IS BEING TAKEN, THE
REFUSAL MAY BE CONSIDERED A CONTEMPT OF THAT COURT. 

(2)  OTHER CONSEQUENCES.  IF ANY PARTY  ...  REFUSES TO OBEY  ...  AN
ORDER MADE UNDER RULE 35 REQUIRING HIM TO SUBMIT TO A PHYSICAL OR
MENTAL EXAMINATION, THE COURT MAY MAKE SUCH ORDERS IN REGARD TO THE
REFUSAL AS ARE JUST, AND AMONG OTHERS THE FOLLOWING: 

(I)  AN ORDER THAT  ...  THE PHYSICAL OR MENTAL CONDITION OF THE
PARTY,  ...  SHALL BE TAKEN TO BE ESTABLISHED FOR THE PURPOSES OF THE
ACTION IN ACCORDANCE WITH THE CLAIM OF THE PARTY OBTAINING THE ORDER; 

(II)  AN ORDER  ...  PROHIBITING (THE DISOBEDIENT PARTY) FROM
INTRODUCING  ...  EVIDENCE OF PHYSICAL OR MENTAL CONDITION; 

(III)  AN ORDER STRIKING OUT PLEADINGS OR PARTS THEREOF, OR STAYING
FURTHER PROCEEDINGS UNTIL THE ORDER IS OBEYED, OR DISMISSING THE ACTION
OR PROCEEDING OR ANY PART THEREOF, OR RENDERING A JUDGMENT BY DEFAULT
AGAINST THE DISOBEDIENT PARTY; 

(IV)  IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION THERETO,
AN ORDER DIRECTING THE ARREST OF ANY PARTY OR AGENT OF A PARTY FOR
DISOBEYING ANY OF SUCH ORDERS EXCEPT AN ORDER TO SUBMIT TO A PHYSICAL
OR MENTAL EXAMINATION." 

THE CONTENTION OF THE PETITIONER, IN FINAL ANALYSIS, IS THAT RULES 35
AND 37 ARE NOT WITHIN THE MANDATE OF CONGRESS TO THIS COURT.  THIS IS
THE LIMIT OF PERMISSIBLE DEBATE, SINCE ARGUMENT TOUCHING THE BROADER
QUESTIONS OF CONGRESSIONAL POWER AND OF THE OBLIGATION OF FEDERAL
COURTS TO APPLY THE SUBSTANTIVE LAW OF A STATE IS FORECLOSED. 

CONGRESS HAS UNDOUBTED POWER TO REGULATE THE PRACTICE AND PROCEDURE
OF FEDERAL COURTS,  FN6  AND MAY EXERCISE THAT POWER BY DELEGATING TO
THIS OR OTHER FEDERAL COURTS AUTHORITY TO MAKE RULES NOT INCONSISTENT
WITH THE STATUTES OR CONSTITUTION OF THE UNITED STATES; FN7  BUT IT HAS
NEVER ESSAYED TO DECLARE THE SUBSTANTIVE STATE LAW, OR TO ABOLISH OR
NULLIFY A RIGHT RECOGNIZED BY THE SUBSTANTIVE LAW OF THE STATE WHERE
THE CAUSE OF ACTION AROSE, SAVE WHERE A RIGHT OR DUTY IS IMPOSED IN A
FIELD COMMITTED TO CONGRESS BY THE CONSTITUTION.  ON THE CONTRARY IT
HAS ENACTED THAT THE STATE LAW SHALL BE THE RULE OF DECISION IN THE
FEDERAL COURTS.  FN8    HENCE WE CONCLUDE THAT THE ACT OF JUNE 19,
1934, WAS PURPOSELY RESTRICTED IN ITS OPERATION TO MATTERS OF PLEADING
AND COURT PRACTICE AND PROCEDURE.  ITS TWO PROVISOS OR CAVEATS
EMPHASIZE THIS RESTRICTION.  THE FIRST IS THAT THE COURT SHALL NOT
"ABRIDGE, ENLARGE, NOR MODIFY SUBSTANTIVE RIGHTS," IN THE GUISE OF
REGULATING PROCEDURE.  THE SECOND IS THAT IF THE RULES ARE TO PRESCRIBE
A SINGLE FORM OF ACTION FOR CASES AT LAW AND SUITS IN EQUITY, THE
CONSTITUTIONAL RIGHT TO JURY TRIAL INHERENT IN THE FORMER MUST BE
PRESERVED.  THERE ARE OTHER LIMITATIONS UPON THE AUTHORITY TO PRESCRIBE
RULES WHICH MIGHT HAVE BEEN, BUT WERE NOT MENTIONED IN THE ACT; FOR
INSTANCE, THE INABILITY OF A COURT, BY RULE, TO EXTEND OR RESTRICT THE
JURISDICTION CONFERRED BY A STATUTE.  FN9 

WHATEVER MAY BE SAID AS TO THE EFFECT OF THE CONFORMITY ACT  FN10
WHILE IT REMAINED IN FORCE, THE RULES, IF THEY ARE WITHIN THE AUTHORITY
GRANTED BY CONGRESS, REPEAL THAT STATUTE, AND THE DISTRICT COURT WAS
NOT BOUND TO FOLLOW THE ILLINOIS PRACTICE RESPECTING AN ORDER FOR
PHYSICAL EXAMINATION.  ON THE OTHER HAND IF THE RIGHT TO BE EXEMPT FROM
SUCH AN ORDER IS ONE OF SUBSTANTIVE LAW, THE RULES OF DECISION ACT
FN11  REQUIRED THE DISTRICT COURT, THOUGH SITTING IN ILLINOIS, TO APPLY
THE LAW OF INDIANA, THE STATE WHERE THE CAUSE OF ACTION AROSE, AND TO
ORDER THE EXAMINATION.  TO AVOID THIS DILEMMA THE PETITIONER ADMITS,
AND, WE THINK, CORRECTLY, THAT RULES 35 AND 37 ARE RULES OF PROCEDURE. 
SHE INSISTS, NEVERTHELESS, THAT BY THE PROHIBITION AGAINST ABRIDGING
SUBSTANTIVE RIGHTS, CONGRESS HAS BANNED THE RULES HERE CHALLENGED.  IN
ORDER TO REACH THIS RESULT SHE TRANSLATES "SUBSTANTIVE" INTO
"IMPORTANT" OR "SUBSTANTIAL" RIGHTS.  AND SHE URGES THAT IF A RULE
AFFECTS SUCH A RIGHT, ALBEIT THE RULE IS ONE OF PROCEDURE MERELY, ITS
PRESCRIPTION IS NOT WITHIN THE STATUTORY GRANT OF POWER EMBODIED IN THE
ACT OF JUNE 19, 1934.  SHE CONTENDS THAT OUR DECISIONS AND RECOGNIZED
PRINCIPLES REQUIRE US SO TO HOLD. 

THE PETITIONER RELIES UPON UNION PACIFIC RY. CO. V. BOTSFORD, 141
U.S. 250, AND CAMDEN & SUBURBAN RY. CO. V. STETSON, 177 U.S. 172.  BUT
THESE CASES IN REALITY SUSTAIN THE VALIDITY OF THE RULES.  IN THE
BOTSFORD CASE AN ACTION TO RECOVER FOR A PERSONAL INJURY SUFFERED IN
THE TERRITORY OF UTAH  FN12  WAS INSTITUTED IN THE UNITED STATES
CIRCUIT COURT FOR INDIANA, WHICH REFUSED TO ORDER A PHYSICAL
EXAMINATION.  THIS COURT AFFIRMED, ON THE GROUND THAT NO AUTHORITY FOR
SUCH AN ORDER WAS SHOWN.  THERE WAS NO SUGGESTION THAT THE QUESTION WAS
ONE OF SUBSTANTIVE LAW.  THE COURT FIRST EXAMINES THE PRACTICE AT
COMMON LAW AND FINDS THAT IT NEVER RECOGNIZED SUCH AN ORDER.  THEN,
ACKNOWLEDGING THAT A STATUTE OF THE UNITED STATES AUTHORIZING AN ORDER
OF THE SORT WOULD BE VALID, THE OPINION FINDS THERE IS NONE.  THUS THE
MATTER IS TREATED AS ONE OF PROCEDURE, FOR CONGRESS HAS NOT, IF IT
COULD, DECLARED BY STATUTE THE SUBSTANTIVE LAW OF A STATE.  AFTER
STATING THAT THE DECISION LAW OF INDIANA ON THE SUBJECT APPEARED NOT TO
BE SETTLED, AND THAT A CITED STATUTE OF THAT STATE WAS NOT IN POINT,
THE COURT ADDED THAT THE QUESTION WAS NOT ONE OF THE LAW OF INDIANA BUT
OF THE LAW OF THE UNITED STATES AND THAT THE FEDERAL STATUTES BY THEIR
PROVISIONS AS TO PROOF IN ACTIONS AT LAW PRECLUDED THE APPLICATION OF
THE CONFORMITY ACT.  AGAIN, THEREFORE, THE OPINION RECOGNIZED THAT THE
MATTER IS ONE OF PROCEDURE, FOR BOTH THE CITED FEDERAL STATUTES,
CONCERNING THE MODE OF PROOF IN FEDERAL COURTS, AND THE CONFORMITY ACT,
DEAL SOLELY WITH PROCEDURE. 

IN FINE, THE DECISION WAS ONLY THAT THE MAKING OF SUCH AN ORDER IS
REGULABLE BY STATUTE, THAT THE FEDERAL STATUTES FORBADE IT, AND HENCE
THE CONFORMITY ACT COULD NOT BE THOUGHT TO AUTHORIZE THE PRACTICE BY
REFERENCE TO AND INCORPORATION OF STATE LAW. 

IN THE STETSON CASE THE ACTION WAS BROUGHT IN THE DISTRICT COURT FOR
NEW JERSEY BY A CITIZEN OF PENNSYLVANIA, WHO, WHILE A CITIZEN OF NEW
JERSEY, HAD BEEN INJURED IN THE LATTER STATE.  A STATUTE OF NEW JERSEY
AUTHORIZED THE STATE COURTS TO ORDER A PHYSICAL EXAMINATION OF A
PLAINTIFF IN AN ACTION FOR DAMAGES PENDING THEREIN.  THE DISTRICT COURT
REFUSED TO ORDER SUCH AN EXAMINATION ON THE GROUND THAT IT LACKED POWER
SO TO DO.  AFTER A VERDICT AND JUDGMENT FOR PLAINTIFF THE DEFENDANT
APPEALED TO THE CIRCUIT COURT OF APPEALS, ASSIGNING THE REFUSAL AS
ERROR.  THAT COURT CERTIFIED THE QUESTION, AND THIS COURT ANSWERED THAT
THE DISTRICT COURT HAD POWER TO ORDER THE EXAMINATION. 

THE COURT STATED THAT IN THE BOTSFORD CASE THERE WAS NO STATUTE
AUTHORIZING SUCH AN ORDER, BUT SAID THAT HERE THERE WAS A STATE STATUTE
WHICH BY THE RULES OF DECISION ACT WAS MADE A LAW OF THE UNITED STATES
AND MUST BE GIVEN EFFECT IN A TRIAL IN A FEDERAL COURT.  WHILE IT IS
TRUE THE COURT REFERRED TO THE RULES OF DECISION ACT (R.S. 721) AND NOT
TO THE CONFORMITY ACT (R.S. 914) THE ENTIRE DISCUSSION GOES UPON THE
ASSUMPTION THAT THE MATTER IS PROCEDURAL.  IN ANY EVENT, THE
DISTINCTION BETWEEN SUBSTANTIVE AND PROCEDURAL LAW WAS IMMATERIAL, FOR
THE CAUSE OF ACTION AROSE AND THE TRIAL WAS HAD IN NEW JERSEY.  FN13 

IN THE INSTANT CASE WE HAVE A RULE WHICH, IF WITHIN THE POWER
DELEGATED TO THIS COURT, HAS THE FORCE OF A FEDERAL STATUTE, AND
NEITHER THE BOTSFORD NOR THE STETSON CASE IS AUTHORITY FOR IGNORING
IT. 

THE REMAINING CASE ON WHICH PETITIONER LEANS IS STACK V. NEW YORK,
N.H. & H.R. CO., 177 MASS. 155; 58 N.E. 686, WHERE THE COURT AGREED
WITH THE VIEW EXPRESSED IN THE BOTSFORD CASE THAT COMMON-LAW PRACTICE
DID NOT WARRANT THE ENTRY OF SUCH AN ORDER AND SAID IT WAS FOR THE
LEGISLATURE RATHER THAN THE COURTS TO ALTER THE PRACTICE.  BUT IF RULE
35 IS WITHIN THE AUTHORITY GRANTED, THE FEDERAL LEGISLATURE SANCTIONED
IT AS CONTROLLING ALL DISTRICT COURTS. 

WE ARE THROWN BACK, THEN, TO THE ARGUMENTS DRAWN FROM THE LANGUAGE OF
THE ACT OF JUNE 19, 1934.  IS THE PHRASE "SUBSTANTIVE RIGHTS" CONFINED
TO RIGHTS CONFERRED BY LAW TO BE PROTECTED AND ENFORCED IN ACCORDANCE
WITH THE ADJECTIVE LAW OF JUDICIAL PROCEDURE?  IT CERTAINLY EMBRACES
SUCH RIGHTS.  ONE OF THEM IS THE RIGHT NOT TO BE INJURED IN ONE'S
PERSON BY ANOTHER'S NEGLIGENCE, TO REDRESS INFRACTION OF WHICH THE
PRESENT ACTION WAS BROUGHT.  THE PETITIONER SAYS THE PHRASE CONNOTES
MORE; THAT BY ITS USE CONGRESS INTENDED THAT IN REGULATING PROCEDURE
THIS COURT SHOULD NOT DEAL WITH IMPORTANT AND SUBSTANTIAL RIGHTS
THERETOFORE RECOGNIZED.  RECOGNIZED WHERE AND BY WHOM?  THE STATE
COURTS ARE DIVIDED AS TO THE POWER IN THE ABSENCE OF STATUTE TO ORDER A
PHYSICAL EXAMINATION.  FN14  IN A NUMBER SUCH AN ORDER IS AUTHORIZED BY
STATUTE OR RULE.  FN15  THE RULES IN QUESTION ACCORD WITH THE PROCEDURE
NOW IN FORCE IN CANADA AND ENGLAND.  FN16 

THE ASSERTED RIGHT, MOREOVER, IS NO MORE IMPORTANT THAN MANY OTHERS
ENJOYED BY LITIGANTS IN DISTRICT COURTS SITTING IN THE SEVERAL STATES,
BEFORE THE FEDERAL RULES OF CIVIL PROCEDURE ALTERED AND ABOLISHED OLD
RIGHTS OR PRIVILEGES AND CREATED NEW ONES IN CONNECTION WITH THE
CONDUCT OF LITIGATION.  THE SUGGESTION THAT THE RULE OFFENDS THE
IMPORTANT RIGHT TO FREEDOM FROM INVASION OF THE PERSON IGNORES THE FACT
THAT, AS WE HOLD, NO INVASION OF FREEDOM FROM PERSONAL RESTRAINT
ATTACHES TO REFUSAL SO TO COMPLY WITH ITS PROVISIONS.  IF WE WERE TO
ADOPT THE SUGGESTED CRITERION OF THE IMPORTANCE OF THE ALLEGED RIGHT WE
SHOULD INVITE ENDLESS LITIGATION AND CONFUSION WORSE CONFOUNDED.  THE
TEST MUST BE WHETHER A RULE REALLY REGULATES PROCEDURE,  - THE JUDICIAL
PROCESS FOR ENFORCING RIGHTS AND DUTIES RECOGNIZED BY SUBSTANTIVE LAW
AND FOR JUSTLY ADMINISTERING REMEDY AND REDRESS FOR DISREGARD OR
INFRACTION OF THEM.  THAT THE RULES IN QUESTION ARE SUCH IS ADMITTED. 

FINALLY, IT IS URGED THAT RULES 35 AND 37 WORK A MAJOR CHANGE OF
POLICY AND THAT THIS WAS NOT INTENDED BY CONGRESS.  APART FROM THE FACT
ALREADY STATED, THAT THE POLICY OF THE STATES IN THIS RESPECT HAS NOT
BEEN UNIFORM, IT IS TO BE NOTED THAT THE AUTHORIZATION OF A
COMPREHENSIVE SYSTEM OF COURT RULES WAS A DEPARTURE IN POLICY, AND THAT
THE NEW POLICY ENVISAGED IN THE ENABLING ACT OF 1934 WAS THAT THE WHOLE
FIELD OF COURT PROCEDURE BE REGULATED IN THE INTEREST OF SPEEDY, FAIR
AND EXACT DETERMINATION OF THE TRUTH.  THE CHALLENGED RULES COMPORT
WITH THIS POLICY.  MOREOVER, IN ACCORDANCE WITH THE ACT, THE RULES WERE
SUBMITTED TO THE CONGRESS SO THAT THAT BODY MIGHT EXAMINE THEM AND VETO
THEIR GOING INTO EFFECT IF CONTRARY TO THE POLICY OF THE LEGISLATURE. 

THE VALUE OF THE RESERVATION OF THE POWER TO EXAMINE PROPOSED RULES,
LAWS AND REGULATIONS BEFORE THEY BECOME EFFECTIVE IS WELL UNDERSTOOD BY
CONGRESS.  IT IS FREQUENTLY, AS HERE, EMPLOYED TO MAKE SURE THAT THE
ACTION UNDER THE DELEGATION SQUARES WITH THE CONGRESSIONAL PURPOSE
N17.  EVIDENTLY THE CONGRESS FELT THE RULE WAS WITHIN THE AMBIT OF THE
STATUTE AS NO EFFORT WAS MADE TO ELIMINATE IT FROM THE PROPOSED BODY OF
RULES, ALTHOUGH THIS SPECIFIC RULE WAS ATTACKED AND DEFENDED BEFORE THE
COMMITTEES OF THE TWO HOUSES.  FN18  THE PRELIMINARY DRAFT OF THE RULES
CALLED ATTENTION TO THE CONTRARY PRACTICE INDICATED BY THE BOTSFORD
CASE, AS DID THE REPORT OF THE ADVISORY COMMITTEE AND THE NOTES
PREPARED BY THE COMMITTEE TO ACCOMPANY THE FINAL VERSION OF THE RULES. 
FN19  THAT NO ADVERSE ACTION WAS TAKEN BY CONGRESS INDICATES, AT LEAST,
THAT NO TRANSGRESSION OF LEGISLATIVE POLICY WAS FOUND.  WE CONCLUDE
THAT THE RULES UNDER ATTACK ARE WITHIN THE AUTHORITY GRANTED. 

THE DISTRICT COURT TREATED THE REFUSAL TO COMPLY WITH ITS ORDER AS A
CONTEMPT AND COMMITTED THE PETITIONER THEREFOR.  NEITHER IN THE CIRCUIT
COURT OF APPEALS NOR HERE WAS THIS ACTION ASSIGNED AS ERROR.  WE THINK,
HOWEVER, THAT IN THE LIGHT OF THE PROVISIONS OF RULE 37 IT WAS PLAIN
ERROR OF SUCH A FUNDAMENTAL NATURE THAT WE SHOULD NOTICE IT.  FN20
THE REFUSAL TO OBEY AN ORDER THAT A PARTY SUBMIT TO A PHYSICAL OR
MENTAL EXAMINATION.  THE DISTRICT COURT WAS IN ERROR IN GOING COUNTER
TO THIS EXPRESS EXEMPTION.  THE REMEDIES AVAILABLE UNDER THE RULE IN
SUCH A CASE ARE THOSE ENUMERATED IN SEC. (B)(2)(I)(II) AND (III).  FOR
THIS ERROR WE REVERSE THE JUDGMENT AND REMAND THE CAUSE TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS OPINION. 
REVERSED. 

FN1  28 U.S.C., FOLLOWING SEC. 723C. 

FN2  SOUTH BEND V. TURNER, 156 IND. 418; 60 N.E. 271; ASPY V.
BOTKINS, 160 IND. 170; 66 N.E. 462; LAKE ERIE & W.R. CO. V. GRISWOLD,
72 IND. APP. 265; 125 N.E. 783; VALPARAISO V. KINNEY, 75 IND. APP. 660;
131 N.E. 237. 

FN3  CHICAGO V. MCNALLY, 227 ILL. 14; 81 N.E. 23; MATTICE V. KLAWANS,
312 ILL. 299; 143 N.E. 866; ILLINOIS V. SCOTT, 326 ILL. 327; 157 N.E.
247. 

FN4  108 F.2D 415. 

FN5  C. 651, 48 STAT. 1064; 28 U.S.C. SEC. 723 B, C. 

FN6  WAYMAN V. SOUTHARD, 10 WHEAT.  1, 21; BANK OF THE UNITED STATES
V. HALSTEAD, 10 WHEAT.  51, 53; BEERS V. HAUGHTON, 9 PET. 329, 359,
361. 

FN7  WAYMAN V. SOUTHARD, SUPRA, 42; BANK OF THE UNITED STATES V.
HALSTEAD, SUPRA, 61; BEERS V. HAUGHTON, SUPRA, 359. 

FN8  R.S. 721, 28 U.S.C. SEC. 725. 

FN9  HUDSON V. PARKER, 156 U.S. 277, 284; VENNER V. GREAT NORTHERN
RY. CO., 209 U.S. 24, 35; DAVIDSON MARBLE CO. V. GIBSON, 213 U.S. 10,
18; MEEK V. CENTRE COUNTY BANKING CO., 268 U.S. 426, 434. 

FN10  R.S. 914; 28 U.S.C. SEC. 724. 

FN11  SUPRA, NOTE 8. 

FN12  THE OPINION DOES NOT SO STATE, BUT THE RECORD FILED IN THIS
COURT SO SHOWS. 

FN13  AS ABOVE POINTED OUT, IF THE MATTER IS ONE OF SUBSTANTIVE LAW,
R.S. 721 REQUIRES THE APPLICATION OF THE LAW OF INDIANA, WHICH
AUTHORIZES AN ORDER FOR EXAMINATION. 

FN14  SEE WIGMORE ON EVIDENCE (3D ED.)  SEC.  2220, NOTE 13. 

FN15  SEE NOTES TO THE RULES OF CIVIL PROCEDURE, PRINTED BY THE
ADVISORY COMMITTEE MARCH 1938, P. 32. 

FN16  WIGMORE ON EVIDENCE (3D ED.)  SEC.  2220, NOTE 13; 31 & 32
VICT.  C. 119, SEC. 26. 

FN17  AN ANALOGY IS FOUND IN THE ORGANIC ACTS APPLICABLE TO SOME OF
THE TERRITORIES, BEFORE THEIR ADMISSION TO STATEHOOD, WHICH PROVIDED
THAT LAWS PASSED BY THE TERRITORIAL LEGISLATURE SHOULD BE VALID UNLESS
CONGRESS DISAPPROVED.  SEC. 5 OF THE ORDINANCE OF 1787; SEE PEASE V.
PECK, 18 HOW.  595.  TERRITORY OF FLORIDA, SEC. 5 OF THE ACT OF MARCH
30, 1822(3 STAT. 655); TERRITORY OF LOUISIANA, SEC. 4 OF THE ACT OF
MARCH 26, 1804(2 STAT. 284), AND SEC. 3 OF THE ACT OF MARCH 3, 1805(2
STAT. 331); TERRITORY OF MINNESOTA, SEC. 6 OF THE ACT OF MARCH 3,
1849(9 STAT. 405); TERRITORY OF NEW MEXICO, SEC. 7 OF THE ACT OF
SEPTEMBER 9, 1850(9 STAT. 449); TERRITORY OF OREGON, SEC. 6 OF THE ACT
OF AUGUST 14, 1848(9 STAT. 326); TERRITORY OF UTAH, SEC. 6 OF THE ACT
OF SEPTEMBER 9, 1850(9 STAT. 455); TERRITORY OF WASHINGTON, SEC. 6 OF
THE ACT OF MARCH 2, 1853(10 STAT. 175); TERRITORY OF WISCONSIN, SEC. 6
OF THE ACT OF APRIL 20, 1836(5 STAT. 13).  SIMILAR PROVISIONS ARE NOW
APPLICABLE TO ALASKA, PUERTO RICO, THE VIRGIN ISLANDS AND THE
PHILIPPINES.  48 U.S.C. SECS. 90, 826, 1405(O), 1054. 

CF. THE PROVISIONS FOR LYING OVER BEFORE CONGRESS IN SEC. 407 OF THE
ACT OF MARCH 3, 1933(47 STAT. 1519), AND SEC. 5 OF THE REORGANIZATION
ACT OF 1939(53 STAT. 562). 

FN18  HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY, HOUSE OF
REPRESENTATIVES, 75TH CONG., 3RD SESS., PP. 117, 141; HEARINGS BEFORE A
SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, U.S. SENATE, 75TH
CONG., 3RD SESS., PP. 36-37, 39, 51. 

FN19  PRELIMINARY DRAFT (MAY, 1936) OF RULES OF CIVIL PROCEDURE FOR
THE DISTRICT COURTS OF THE UNITED STATES AND THE SUPREME COURT OF THE
DISTRICT OF COLUMBIA, ADVISORY COMMITTEE ON RULES FOR CIVIL PROCEDURE,
P. 71; NOTES TO THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF
THE UNITED STATES (MARCH, 1938), P. 32. 

FN20  SUPREME COURT RULE 27, PAR. 6; MAHLER V. EBY, 264 U.S. 32, 45;
KESSLER V. STRECKER, 307 U.S. 22, 34.    MR. JUSTICE FRANKFURTER,
DISSENTING: 

UNION PACIFIC RY. CO. V. BOTSFORD, 141 U.S. 250, DENIED THE POWER OF
THE FEDERAL COURTS IN A CIVIL ACTION TO COMPEL A PLAINTIFF SUING FOR
INJURY TO THE PERSON TO SUBMIT TO A PHYSICAL EXAMINATION.  NINE YEARS
LATER, IN CAMDEN & SUBURBAN RY. CO. V. STETSON, 177 U.S. 172, THE
BOTSFORD DECISION WAS TREATED AS SETTLED DOCTRINE.  THE PRESENT ISSUE
IS WHETHER THE AUTHORITY WHICH CONGRESS GAVE TO THIS COURT TO FORMULATE
RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS ALLOWS DISPLACEMENT OF
THE LAW OF THE BOTSFORD CASE.  STATED MORE PARTICULARLY, IS RULE 35,
AUTHORIZING SUCH PHYSICAL EXAMINATION, VALID UNDER THE RULES ENABLING
ACT OF JUNE 19, 1934; 48 STAT. 1064; 28 U.S.C. SEC. 723B-C.  IT IS
URGED THAT SINCE THIS RULE PERTAINS TO PROCEDURE, IT IS VALID BECAUSE
OUTSIDE THE LIMITATIONS OF THAT ACT, WHEREBY "SAID RULES SHALL NEITHER
ABRIDGE, ENLARGE, NOR MODIFY THE SUBSTANTIVE RIGHTS OF ANY LITIGANT." 

SPEAKING WITH DIFFIDENCE IN SUPPORT OF A VIEW WHICH HAS NOT COMMENDED
ITSELF TO THE COURT, IT DOES NOT SEEM TO ME THAT THE ANSWER TO OUR
QUESTION IS TO BE FOUND BY AN ANALYTIC DETERMINATION WHETHER THE POWER
OF EXAMINATION HERE CLAIMED IS A MATTER OF PROCEDURE OR A MATTER OF
SUBSTANCE, EVEN ASSUMING THAT THE TWO ARE MUTUALLY EXCLUSIVE CATEGORIES
WITH EASILY ASCERTAINABLE CONTENTS.  THE PROBLEM SEEMS TO ME TO BE
CONTROLLED BY THE POLICY UNDERLYING THE BOTSFORD DECISION.  ITS
DOCTRINE WAS NOT A SURVIVAL OF AN OUTWORN TECHNICALITY.  IT RESTED ON
CONSIDERATIONS AKIN TO WHAT IS FAMILIARLY KNOWN IN THE ENGLISH LAW AS
THE LIBERTIES OF THE SUBJECT.  TO BE SURE, THE IMMUNITY THAT WAS
RECOGNIZED IN THE BOTSFORD CASE HAS NO CONSTITUTIONAL SANCTION.  IT IS
AMENABLE TO STATUTORY CHANGE.  BUT THE "INVIOLABILITY OF A PERSON" WAS
DEEMED TO HAVE SUCH HISTORIC ROOTS IN ANGLO-AMERICAN LAW THAT IT WAS
NOT TO BE CURTAILED "UNLESS BY CLEAR AND UNQUESTIONABLE AUTHORITY OF
LAW."  IN THIS CONNECTION IT IS SIGNIFICANT THAT A JUDGE AS RESPONSIVE
TO PROCEDURAL NEEDS AS WAS MR. JUSTICE HOLMES, SHOULD, ON BEHALF OF THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS, HAVE SUPPORTED THE BOTSFORD
DOCTRINE ON THE GROUND THAT "THE COMMON LAW WAS VERY SLOW TO SANCTION
ANY VIOLATION OF OR INTERFERENCE WITH THE PERSON OF A FREE CITIZEN." 
STACK V. NEW YORK, N.H. & H.R. CO., 177 MASS. 155, 157; 58 N.E. 686. 

SO FAR AS NATIONAL LAW IS CONCERNED, A DRASTIC CHANGE IN PUBLIC
POLICY IN A MATTER DEEPLY TOUCHING THE SENSIBILITIES OF PEOPLE OR EVEN
THEIR PREJUDICES AS TO PRIVACY, OUGHT NOT TO BE INFERRED FROM A GENERAL
AUTHORIZATION TO FORMULATE RULES FOR THE MORE UNIFORM AND EFFECTIVE
DISPATCH OF BUSINESS ON THE CIVIL SIDE OF THE FEDERAL COURTS.  I DEEM A
REQUIREMENT AS TO THE INVASION OF THE PERSON TO STAND ON A VERY
DIFFERENT FOOTING FROM QUESTIONS PERTAINING TO THE DISCOVERY OF
DOCUMENTS, PRE-TRIAL PROCEDURE AND OTHER DEVICES FOR THE EXPEDITIOUS,
ECONOMIC AND FAIR CONDUCT OF LITIGATION.  THAT DISOBEDIENCE OF AN ORDER
UNDER RULE 35 CANNOT BE VISITED WITH PUNISHMENT AS FOR CONTEMPT DOES
NOT MITIGATE ITS INTRUSION INTO AN HISTORIC IMMUNITY OF THE PRIVACY OF
THE PERSON.  OF COURSE THE RULE IS COMPULSIVE IN THAT THE DOORS OF THE
FEDERAL COURTS OTHERWISE OPEN MAY BE SHUT TO LITIGANTS WHO DO NOT
SUBMIT TO SUCH A PHYSICAL EXAMINATION. 

IN THIS VIEW LITTLE SIGNIFICANCE ATTACHES TO THE FACT THAT THE RULES,
IN ACCORDANCE WITH THE STATUTE, REMAINED ON THE TABLE OF TWO HOUSES OF
CONGRESS WITHOUT EVOKING ANY OBJECTION TO RULE 35 AND THEREBY
AUTOMATICALLY CAME INTO FORCE.  PLAINLY THE RULES ARE NOT ACTS OF
CONGRESS AND CAN NOT BE TREATED AS SUCH.  HAVING DUE REGARD TO THE
MECHANICS OF LEGISLATION AND THE PRACTICAL CONDITIONS SURROUNDING THE
BUSINESS OF CONGRESS WHEN THE RULES WERE SUBMITTED, TO DRAW ANY
INFERENCE OF TACIT APPROVAL FROM NON-ACTION BY CONGRESS IS TO APPEAL TO
UNREALITY.  AND SO I CONCLUDE THAT TO MAKE THE DRASTIC CHANGE THAT RULE
35 SOUGHT TO INTRODUCE WOULD REQUIRE EXPLICIT LEGISLATION. 

ORDINARILY, DISAGREEMENT WITH THE MAJORITY ON SO-CALLED PROCEDURAL
MATTERS IS BEST HELD IN SILENCE.  EVEN IN THE PRESENT SITUATION I
SHOULD BE LOATH TO REGISTER DISSENT DID THE ISSUE PERTAIN MERELY TO
DIVERSITY LITIGATION.  BUT RULE 35 APPLIES TO ALL CIVIL LITIGATION IN
THE FEDERAL COURTS, AND THUS CONCERNS THE ENFORCEMENT OF FEDERAL RIGHTS
AND NOT MERELY OF STATE LAW IN THE FEDERAL COURTS. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY AGREE
WITH THESE VIEWS. 
..END :












GORIN V. UNITED STATES, 312 U.S. 19 


NO. 87.  ARGUED DECEMBER 19, 1940.  - DECIDED JANUARY 13, 1941.  - 111
F.2D 712, AFFIRMED. 


1.  IN ORDER TO CONSTITUTE THE CRIMES DENOUNCED BY SECS. 1(B) AND 2 OF
THE ESPIONAGE ACT - THE OBTAINING OF DOCUMENTS CONNECTED WITH OR
RELATING TO THE NATIONAL DEFENSE AND THEIR DELIVERY TO AN AGENT OF A
FOREIGN COUNTRY WITH AN INTENT, OR REASON TO BELIEVE, IN EACH CASE,
THAT THEY ARE TO BE USED TO THE INJURY OF THE UNITED STATES OR TO THE
ADVANTAGE OF A FOREIGN NATION - IT IS NOT NECESSARY THAT THE DOCUMENTS
CONTAIN INFORMATION CONCERNING THE PLACES OR THINGS (SUCH AS VESSELS,
AIRCRAFT, FORTS, SIGNAL STATIONS, CODES OR SIGNAL BOOKS) WHICH ARE
SPECIFICALLY MENTIONED IN SEC. 1(A) OF THE ACT.  P. 25. 

2.  "NATIONAL DEFENSE" AS USED IN SECS. 1(B) AND 2 OF THE ESPIONAGE
ACT REFERS TO THE MILITARY OR NAVAL ESTABLISHMENTS AND TO RELATED
ACTIVITIES OF NATIONAL PREPAREDNESS FOR WAR.  P. 28. 

3.  WITH THIS MEANING OF "NATIONAL DEFENSE" AND WITH THE ELEMENTS OF
SCIENTER AND BAD FAITH WHICH MUST BE PRESENT, THE SECTIONS ARE
SUFFICIENTLY DEFINITE TO APPRISE THE PUBLIC OF THE ACTIVITIES THEY
PROHIBIT; AND THEY ACCORD WITH DUE PROCESS.  P. 27. 

4.  INFORMATION TAKEN FROM REPORTS IN THE FILES OF THE NAVAL
INTELLIGENCE, GIVING A DETAILED PICTURE OF COUNTER-ESPIONAGE WORK, HELD
CAPABLE OF USE TO THE INJURY OF THE UNITED STATES OR TO THE ADVANTAGE
OF A FOREIGN NATION, WITHIN THE MEANING OF SECS. 1 AND 2 OF THE
ESPIONAGE ACT.  P. 29. 

5.  IN ESTABLISHING VIOLATIONS OF SECS. 1(B) AND 2 OF THE ESPIONAGE
ACT, WHERE IT WAS PROVED THAT THE FORBIDDEN INFORMATION WAS TO BE USED
TO THE ADVANTAGE OF A FOREIGN NATION, IT WAS NOT NECESSARY TO PROVE
ALSO THAT IT WAS TO BE USED TO THE INJURY OF THE UNITED STATES.  P.
29. 

6.  IN A PROSECUTION UNDER SECS. 1(B) AND 2 OF THE ESPIONAGE ACT THE
JURY DETERMINES WHETHER THE ACTS OF THE DEFENDANTS WERE CONNECTED WITH
OR RELATED TO THE NATIONAL DEFENSE, UNDER PROPER TESTS LAID DOWN BY THE
INSTRUCTIONS.  P. 30. 

THE FUNCTION OF THE COURT IS TO INSTRUCT AS TO THE KIND OF
INFORMATION WHICH IS VIOLATIVE OF THE STATUTE, AND THAT OF THE JURY TO
DECIDE WHETHER THE INFORMATION SECURED IS OF THE DEFINED KIND.  IT IS
NOT THE FUNCTION OF THE COURT, WHERE REASONABLE MEN MAY DIFFER, TO
DETERMINE WHETHER THE ACTS DO OR DO NOT COME WITHIN THE AMBIT OF THE
STATUTE.  THE QUESTION OF THE CONNECTION OF THE INFORMATION WITH
NATIONAL DEFENSE IS A QUESTION OF FACT TO BE DETERMINED BY THE JURY AS
NEGLIGENCE UPON UNDISPUTED FACTS IS DETERMINED. 

GORIN V. UNITED STATES.* 

*TOGETHER WITH NO. 88, SALICH V. UNITED STATES, ALSO ON CERTIORARI,
310 U.S. 622, TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 310 U.S. 622, TO REVIEW THE AFFIRMANCE OF SENTENCES FOR
VIOLATIONS OF THE ESPIONAGE ACT OF JUNE 15, 1917. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI BRINGS HERE A JUDGMENT OF THE CIRCUIT COURT OF
APPEALS AFFIRMING THE SENTENCES OF THE TWO PETITIONERS WHO WERE
CONVICTED OF VIOLATION OF THE ESPIONAGE ACT OF JUNE 15, 1917.  111 F.2D
712.  AS THE AFFIRMANCE TURNED UPON A DETERMINATION OF THE SCOPE OF THE
ACT AND ITS CONSTITUTIONALITY AS CONSTRUED, THE PETITION WAS ALLOWED
BECAUSE OF THE QUESTIONS, IMPORTANT IN ENFORCING THIS CRIMINAL
STATUTE. 

THE JOINT INDICTMENT IN THREE COUNTS CHARGED IN THE FIRST COUNT
VIOLATION OF SEC. 1(B) BY ALLEGATIONS IN THE WORDS OF THE STATUTE OF
OBTAINING DOCUMENTS "CONNECTED WITH THE NATIONAL DEFENSE"; IN THE
SECOND COUNT VIOLATION OF SEC. 2(A) IN DELIVERING AND INDUCING THE
DELIVERY OF THESE DOCUMENTS TO THE PETITIONER, GORIN, THE AGENT OF A
FOREIGN NATION; AND IN THE THIRD COUNT OF SEC. 4 BY CONSPIRACY TO
DELIVER THEM TO A FOREIGN GOVERNMENT AND ITS AGENT, JUST NAMED.  THE
PERTINENT STATUTORY PROVISIONS APPEAR BELOW N1.  A THIRD PARTY, THE
WIFE OF GORIN, WAS JOINED IN AND ACQUITTED ON ALL THREE COUNTS.  THE
PETITIONERS WERE FOUND GUILTY ON EACH COUNT AND SENTENCED TO VARIOUS
TERMS OF IMPRISONMENT TO RUN CONCURRENTLY AND FINES OF $10,000 EACH. 
THE LONGEST TERM OF GORIN IS SIX YEARS AND OF SALICH FOUR YEARS. 

THE PROOF INDICATED THAT GORIN, A CITIZEN OF THE UNION OF SOVIET
SOCIALIST REPUBLICS, ACTED AS ITS AGENT IN GATHERING INFORMATION.  HE
SOUGHT AND OBTAINED FROM SALICH FOR SUBSTANTIAL PAY THE CONTENTS OF
OVER FIFTY REPORTS RELATING CHIEFLY TO JAPANESE ACTIVITIES IN THE
UNITED STATES.  THESE REPORTS WERE IN THE FILES OF THE NAVAL
INTELLIGENCE BRANCH OFFICE AT SAN PEDRO, CALIFORNIA.  SALICH, A
NATURALIZED, RUSSIAN-BORN CITIZEN, HAD FREE ACCESS TO THE RECORDS AS HE
WAS A CIVILIAN INVESTIGATOR FOR THAT OFFICE.  SPEAKING BROADLY THE
REPORTS DETAILED THE COMING AND GOING ON THE WEST COAST OF JAPANESE
MILITARY AND CIVIL OFFICIALS AS WELL AS PRIVATE CITIZENS WHOSE ACTIONS
WERE DEEMED OF POSSIBLE INTEREST TO THE INTELLIGENCE OFFICE.  SOME
STATEMENTS APPEAR AS TO THE MOVEMENTS OF FISHING BOATS, SUSPECTED OF
ESPIONAGE AND AS TO THE TAKING OF PHOTOGRAPHS OF AMERICAN WAR VESSELS. 

PETITIONERS OBJECT TO THE CONVICTIONS PRINCIPALLY ON THE GROUNDS (1)
THAT THE PROHIBITIONS OF THE ACT ARE LIMITED TO OBTAINING AND
DELIVERING INFORMATION CONCERNING THE SPECIFICALLY DESCRIBED PLACES AND
THINGS SET OUT IN THE ACT, SUCH AS A VESSEL, AIRCRAFT, FORT, SIGNAL
STATION, CODE OR SIGNAL BOOK; AND (2) THAT AN INTERPRETATION WHICH PUT
WITHIN THE STATUTE THE FURNISHING OF ANY OTHER INFORMATION CONNECTED
WITH OR RELATING TO THE NATIONAL DEFENSE THAN THAT CONCERNING THESE
SPECIFICALLY DESCRIBED PLACES AND THINGS WOULD MAKE THE ACT
UNCONSTITUTIONAL AS VIOLATIVE OF DUE PROCESS BECAUSE OF
INDEFINITENESS. 

THE PHILOSOPHY BEHIND THE INSISTENCE THAT THE PROHIBITIONS OF SECS.
1(B) AND 2(A), UPON WHICH THE INDICTMENT IS BASED, ARE LIMITED TO THE
PLACES AND THINGS WHICH ARE SPECIFICALLY SET OUT IN SEC. 1(A) RELIES
UPON THE TRADITIONAL FREEDOM OF DISCUSSION OF MATTERS CONNECTED WITH
NATIONAL DEFENSE WHICH IS PERMITTED IN THIS COUNTRY.  IT WOULD REQUIRE,
URGE PETITIONERS, THE CLEAREST SORT OF DECLARATION BY THE CONGRESS TO
BRING UNDER THE STATUTE THE OBTAINING AND DELIVERING TO A FOREIGN
GOVERNMENT FOR ITS ADVANTAGE OF REPORTS GENERALLY PUBLISHED AND
AVAILABLE WHICH DEAL WITH FOOD PRODUCTION, THE ADVANCES OF CIVIL
AERONAUTICS, RESERVES OF RAW MATERIALS OR OTHER SIMILAR MATTERS NOT
DIRECTLY CONNECTED WITH AND YET OF THE GREATEST IMPORTANCE TO NATIONAL
DEFENSE.  THE POSSIBILITY OF SUCH AN INTERPRETATION OF THE TERMS
"CONNECTED WITH" OR "RELATING TO" NATIONAL DEFENSE IS TO BE AVOIDED BY
CONSTRUING THE ACT SO AS "TO MAKE IT A CRIME ONLY TO OBTAIN INFORMATION
AS TO PLACES AND THINGS SPECIFICALLY LISTED IN SECTION 1 AS CONNECTED
WITH OR RELATED TO THE NATIONAL DEFENSE."  PETITIONERS ARGUE THAT THE
STATUTE SHOULD NOT BE CONSTRUED SO AS TO LEAVE TO A JURY TO DETERMINE
WHETHER AN INNOCUOUS REPORT ON A CROP YIELD IS "CONNECTED" WITH THE
NATIONAL DEFENSE. 

PETITIONERS RELY UPON THE LEGISLATIVE HISTORY TO SUPPORT THIS
POSITION.  FN2  THE PASSAGE OF THE ESPIONAGE ACT  FN3  DURING THE WORLD
WAR YEAR OF 1917 ATTRACTED THE CLOSE SCRUTINY OF CONGRESS AND RESULTED
IN DIFFERENT BILLS IN THE TWO HOUSES WHICH WERE RECONCILED ONLY AFTER A
SECOND CONFERENCE REPORT.  NOTHING MORE DEFINITE APPEARS IN THIS
HISTORY AS TO THE CONGRESSIONAL INTENTION IN REGARD TO LIMITING THE
ACT'S PROHIBITIONS UPON WHICH THIS INDICTMENT DEPENDS TO THE PLACES AND
THINGS IN SEC. 1(A), THAN THAT A HOUSE DEFINITION OF "NATIONAL DEFENSE"
WHICH GAVE IT A BROAD MEANING WAS STRICKEN OUT  FN4  AND THE CONFERENCE
REPORT STATED AS TO THE FINAL FORM OF THE PRESENT ACT: "SECTION 1 SETS
OUT THE PLACES CONNECTED WITH THE NATIONAL DEFENSE TO WHICH THE
PROHIBITIONS OF THE SECTION APPLY."  NEITHER CHANGE SEEMS SIGNIFICANT
ON THIS INQUIRY.  THE HOUSE BILL HAD NOT SPECIFIED THE PLACES UNDER
SURVEILLANCE.  THE CONFERENCE CHANGE MADE THEM DEFINITE.  THE FACT THAT
THE CLAUSE "OR OTHER PLACE CONNECTED WITH THE NATIONAL DEFENSE" IS ALSO
INCLUDED IN SEC. 1(A) IS NOT AN UNUSUAL MANNER OF PROTECTING ENACTMENTS
AGAINST INADVERTENT OMISSIONS.  WITH THIS SPECIFIC DESIGNATION OF
PROHIBITED PLACES, THE BROAD DEFINITION OF SEC. 1202 OF THE HOUSE WAS
STRICKEN AS NO LONGER APT AND, AS STATED IN CONFERENCE REPORT NO. 69,
SEC. 6 OF THE ACT WAS THEREFORE ADOPTED.  OBVIOUSLY THE PURPOSE WAS TO
GIVE FLEXIBILITY TO THE DESIGNATED PLACES.  FN5  WE SEE NOTHING IN THIS
LEGISLATIVE HISTORY TO AFFECT OUR CONCLUSION WHICH IS DRAWN FROM THE
MEANING OF THE ENTIRE ACT.  FN6 

AN EXAMINATION OF THE WORDS OF THE STATUTE SATISFIES US THAT THE
MEANING OF NATIONAL DEFENSE IN SECS. 1(B) AND 2(A) CANNOT BE LIMITED TO
THE PLACES AND THINGS SPECIFIED IN SEC. 1(A).  CERTAINLY THERE IS NO
SUCH EXPRESS LIMITATION IN THE LATER SECTIONS.  SECTION 1(A) LAYS DOWN
THE TEST OF PURPOSE AND INTENT AND THEN DEFINES THE CRIME AS GOING UPON
OR OTHERWISE OBTAINING INFORMATION AS TO NAMED THINGS AND PLACES
CONNECTED WITH THE NATIONAL DEFENSE.  SECTION 1(B) ADOPTS THE SAME
PURPOSE AND INTENT OF 1(A) AND THEN DEFINES THE CRIME AS COPYING,
TAKING OR PICTURING CERTAIN ARTICLES SUCH AS MODELS, APPLIANCES,
DOCUMENTS, AND SO FORTH OF ANYTHING CONNECTED WITH THE NATIONAL
DEFENSE.  NONE OF THE ARTICLES SPECIFIED IN 1(B) ARE THE SAME AS THE
THINGS SPECIFIED IN 1(A).  APPARENTLY THE DRAFTSMEN OF THE ACT FIRST
SET OUT THE PLACES TO BE PROTECTED, AND INCLUDED IN THAT CONNOTATION
SHIPS AND PLANES, AND THEN IN 1(B) COVERED MUCH OF THE CONTENTS OF SUCH
PLACES IN THE NATURE OF PLANS AND DOCUMENTS.  SECTION 2(A), IT WILL BE
OBSERVED, COVERS IN MUCH THE SAME WAY THE DELIVERY OF THESE MOVABLE
ARTICLES OR INFORMATION TO A FOREIGN NATION OR ITS AGENT.  IF A
GOVERNMENT MODEL OF A NEW WEAPON WERE OBTAINED OR DELIVERED THERE SEEMS
TO BE LITTLE LOGIC IN MAKING ITS TRANSFER A CRIME ONLY WHEN IT IS
CONNECTED IN SOME UNDEFINED WAY WITH THE PLACES CATALOGUED UNDER 1(A). 
IT IS OUR VIEW THAT IT IS A CRIME TO OBTAIN OR DELIVER, IN VIOLATION OF
THE INTENT AND PURPOSES SPECIFIED, THE THINGS DESCRIBED IN SECS. 1(B)
AND 2(A) WITHOUT REGARD TO THEIR CONNECTION WITH THE PLACES AND THINGS
OF 1(A). 

IN EACH OF THESE SECTIONS THE DOCUMENT OR OTHER THING PROTECTED IS
REQUIRED ALSO TO BE "CONNECTED WITH" OR "RELATING TO" THE NATIONAL
DEFENSE.  THE SECTIONS ARE NOT SIMPLE PROHIBITIONS AGAINST OBTAINING OR
DELIVERING TO FOREIGN POWERS INFORMATION WHICH A JURY MAY CONSIDER
RELATING TO NATIONAL DEFENSE.  IF THIS WERE THE LANGUAGE, IT WOULD NEED
TO BE TESTED BY THE INQUIRY AS TO WHETHER IT HAD DOUBLE MEANING  FN7
OR FORCED ANYONE, AT HIS PERIL, TO SPECULATE AS TO WHETHER CERTAIN
ACTIONS VIOLATED THE STATUTE.  FN8  THIS COURT HAS FREQUENTLY HELD
CRIMINAL LAWS DEEMED TO VIOLATE THESE TESTS INVALID.  UNITED STATES V.
COHEN GROCERY CO.,  FN9  URGED AS A PRECEDENT BY PETITIONERS, POINTS
OUT THAT THE STATUTE THERE UNDER CONSIDERATION FORBADE NO SPECIFIC ACT,
FN10 THAT IT REALLY PUNISHED ACTS "DETRIMENTAL TO THE PUBLIC INTEREST
WHEN UNJUST AND UNREASONABLE" IN A JURY'S VIEW.  IN LANZETTA V. NEW
JERSEY  FN11  THE STATUTE WAS EQUALLY VAGUE.  "ANY PERSON NOT ENGAGED
IN ANY LAWFUL OCCUPATION, KNOWN TO BE A MEMBER OF ANY GANG  ...  , WHO
HAS BEEN CONVICTED AT LEAST THREE TIMES OF BEING A DISORDERLY PERSON,
OR WHO HAS BEEN CONVICTED OF ANY CRIME IN THIS OR ANY OTHER STATE, IS
DECLARED TO BE A GANGSTER  ...  "  WE THERE SAID THAT THE STATUTE
"CONDEMNS NO ACT OR OMISSION"; THAT THE VAGUENESS IS SUCH AS TO VIOLATE
DUE PROCESS.  FN12 

BUT WE FIND NO UNCERTAINTY IN THIS STATUTE WHICH DEPRIVES A PERSON OF
THE ABILITY TO PREDETERMINE WHETHER A CONTEMPLATED ACTION IS CRIMINAL
UNDER THE PROVISIONS OF THIS LAW.  FN13 THE OBVIOUS DELIMITING WORDS IN
THE STATUTE ARE THOSE REQUIRING "INTENT OR REASON TO BELIEVE THAT THE
INFORMATION TO BE OBTAINED IS TO BE USED TO THE INJURY OF THE UNITED
STATES, OR TO THE ADVANTAGE OF ANY FOREIGN NATION."  THIS REQUIRES
THOSE PROSECUTED TO HAVE ACTED IN BAD FAITH.  THE SANCTIONS APPLY ONLY
WHEN SCIENTER IS ESTABLISHED.  FN14  WHERE THERE IS NO OCCASION FOR
SECRECY, AS WITH REPORTS RELATING TO NATIONAL DEFENSE, PUBLISHED BY
AUTHORITY OF CONGRESS OR THE MILITARY DEPARTMENTS, THERE CAN, OF
COURSE, IN ALL LIKELIHOOD BE NO REASONABLE INTENT TO GIVE AN ADVANTAGE
TO A FOREIGN GOVERNMENT.  FINALLY, WE ARE OF THE VIEW THAT THE USE OF
THE WORDS "NATIONAL DEFENSE" HAS GIVEN THEM, AS HERE EMPLOYED, A WELL
UNDERSTOOD CONNOTATION.  THEY WERE USED IN THE DEFENSE SECRETS ACT OF
1911.  FN15  THE TRADITIONAL CONCEPT OF WAR AS A STRUGGLE BETWEEN
NATIONS IS NOT CHANGED BY THE INTENSITY OF SUPPORT GIVEN TO THE ARMED
FORCES BY CIVILIANS OR THE EXTENSION OF THE COMBAT AREA.  NATIONAL
DEFENSE, THE GOVERNMENT MAINTAINS, "IS A GENERIC CONCEPT OF BROAD
CONNOTATIONS, REFERRING TO THE MILITARY AND NAVAL ESTABLISHMENTS AND
THE RELATED ACTIVITIES OF NATIONAL PREPAREDNESS."  WE AGREE THAT THE
WORDS "NATIONAL DEFENSE" IN THE ESPIONAGE ACT CARRY THAT MEANING. 
WHETHER A DOCUMENT OR REPORT IS COVERED BY SECS. 1(B) OR 2(A) DEPENDS
UPON ITS RELATION TO THE NATIONAL DEFENSE, AS SO DEFINED, NOT UPON ITS
CONNECTION WITH PLACES SPECIFIED IN SEC. 1(A).  THE LANGUAGE EMPLOYED
APPEARS SUFFICIENTLY DEFINITE TO APPRISE THE PUBLIC OF PROHIBITED
ACTIVITIES AND IS CONSONANT WITH DUE PROCESS. 

AT THE CONCLUSION OF ALL THE EVIDENCE PETITIONERS SOUGHT A DIRECTED
VERDICT OF ACQUITTAL BECAUSE (1) THE INNOCUOUS CHARACTER OF THE
EVIDENCE FORBADE A CONCLUSION THAT PETITIONERS HAD INTENT OR REASON TO
BELIEVE THAT THE INFORMATION WAS TO BE USED TO THE INJURY OF THE UNITED
STATES OR THE ADVANTAGE OF A FOREIGN NATION AND (2) THE EVIDENCE FAILED
TO DISCLOSE THAT ANY OF THE REPORTS RELATED TO OR WAS CONNECTED WITH
THE NATIONAL DEFENSE.  AS A COROLLARY TO THIS SECOND CONTENTION,
REVERSAL IS SOUGHT ON THE GROUND THAT THE TRIAL COURT OVERRULED THE
PETITIONERS' OBJECTION THAT AS A MATTER OF LAW NONE OF THE REPORTS
DEALT WITH NATIONAL DEFENSE.  THAT IS, AS THE TRIAL COURT STATED THE
OBJECTION, THAT "THE JURY HAS NO PRIVILEGE IN DETERMINING WHETHER OR NO
ANY OF THESE REPORTS HAVE TO DO WITH THE NATIONAL DEFENSE, THAT THAT IS
A MATTER FOR THE COURT AND NOT FOR THE JURY, AS A MATTER OF LAW." 

TO JUSTIFY A COURT'S REFUSING TO PERMIT A JURY TO CONSIDER A
DEFENDANT'S INTENT IN OBTAINING AND DELIVERING THESE REPORTS, ONE WOULD
BE COMPELLED TO CONCLUDE THAT NOTHING IN THEM COULD BE VIOLATIVE OF THE
LAW.  AS THEY GAVE A DETAILED PICTURE OF THE COUNTER-ESPIONAGE WORK OF
THE NAVAL INTELLIGENCE, DRAWN FROM ITS OWN FILES, THEY MUST BE
CONSIDERED AS DEALING WITH ACTIVITIES OF THE MILITARY FORCES.  A
FOREIGN GOVERNMENT IN POSSESSION OF THIS INFORMATION WOULD BE IN A
POSITION TO USE IT EITHER FOR ITSELF, IN FOLLOWING THE MOVEMENTS OF THE
AGENTS REPORTED UPON, OR AS A CHECK UPON THIS COUNTRY'S EFFICIENCY IN
FERRETING OUT FOREIGN ESPIONAGE.  IT COULD USE THE REPORTS TO ADVISE
THE STATE OF THE PERSONS INVOLVED OF THE SURVEILLANCE EXERCISED BY THE
UNITED STATES OVER THE MOVEMENTS OF THESE FOREIGN CITIZENS.  THE
REPORTS, IN SHORT, ARE A PART OF THIS NATION'S PLAN FOR ARMED DEFENSE. 
THE PART RELATING TO ESPIONAGE AND COUNTER-ESPIONAGE CANNOT BE VIEWED
AS SEPARATED FROM THE WHOLE. 

NOR DO WE THINK IT NECESSARY TO PROVE THAT THE INFORMATION OBTAINED
WAS TO BE USED TO THE INJURY OF THE UNITED STATES.  THE STATUTE IS
EXPLICIT IN PHRASING THE CRIME OF ESPIONAGE AS AN ACT OF OBTAINING
INFORMATION RELATING TO THE NATIONAL DEFENSE "TO BE USED  ...  TO THE
ADVANTAGE OF ANY FOREIGN NATION."  NO DISTINCTION IS MADE BETWEEN
FRIEND OR ENEMY.  UNHAPPILY THE STATUS OF A FOREIGN GOVERNMENT MAY
CHANGE.  THE EVIL WHICH THE STATUTE PUNISHES IS THE OBTAINING OR
FURNISHING OF THIS GUARDED INFORMATION, EITHER TO OUR HURT OR ANOTHER'S
GAIN.  IF WE ACCEPT PETITIONERS' CONTENTION THAT "ADVANTAGE" MEANS
ADVANTAGE AS AGAINST THE UNITED STATES, IT WOULD BE A USELESS ADDITION,
AS NO ADVANTAGE COULD BE GIVEN OUR COMPETITOR OR OPPONENT IN THAT SENSE
WITHOUT INJURY TO US.    AN EXAMINATION OF THE INSTRUCTIONS CONVINCES
US THAT NO INJUSTICE WAS DONE PETITIONERS BY THEIR CONTENT.  WEIGHED BY
THE TEST PREVIOUSLY OUTLINED OF RELATION TO THE MILITARY
ESTABLISHMENTS, THEY ARE FAVORABLE TO PETITIONERS' CONTENTIONS.  A FEW
EXCERPTS WILL MAKE THIS CLEAR: 

"YOU ARE INSTRUCTED THAT THE TERM 'NATIONAL DEFENSE' INCLUDES ALL
MATTERS DIRECTLY AND REASONABLY CONNECTED WITH THE DEFENSE OF OUR
NATION AGAINST ITS ENEMIES.  ...  AS YOU WILL NOTE, THE STATUTE
SPECIFICALLY MENTIONS THE PLACES AND THINGS CONNECTED WITH OR
COMPRISING THE FIRST LINE OF DEFENSE WHEN IT MENTIONS VESSELS,
AIRCRAFT, WORKS OF DEFENSE, FORT OR BATTERY AND TORPEDO STATIONS.  YOU
WILL NOTE, ALSO, THAT THE STATUTE SPECIFICALLY MENTIONS BY NAME CERTAIN
OTHER PLACES OR THINGS RELATING TO WHAT WE MAY CALL THE SECONDARY LINE
OF NATIONAL DEFENSE.  THUS SOME AT LEAST OF THE STORAGE OF RESERVES OF
MEN AND MATERIALS IS ORDINARILY DONE AT NAVAL STATIONS, SUBMARINE
BASES, COALING STATIONS, DOCK YARDS, ARSENALS AND CAMPS; ALL OF WHICH
ARE SPECIFICALLY DESIGNATED IN THE STATUTE.  ...  YOU ARE INSTRUCTED IN
THE FIRST PLACE THAT FOR PURPOSES OF PROSECUTION UNDER THESE STATUTES,
THE INFORMATION, DOCUMENTS, PLANS, MAPS, ETC., CONNECTED WITH THESE
PLACES OR THINGS MUST DIRECTLY RELATE TO THE EFFICIENCY AND
EFFECTIVENESS OF THE OPERATION OF SAID PLACES OR THINGS AS INSTRUMENTS
FOR DEFENDING OUR NATION.  ...  YOU ARE INSTRUCTED THAT IN THE SECOND
PLACE THE INFORMATION, DOCUMENTS OR NOTES MUST RELATE TO THOSE ANGLES
OR PHRASES OF THE INSTRUMENTALITY, PLACE OR THING WHICH RELATES TO THE
DEFENSE OF OUR NATION; THUS IF A PLACE OR THING HAS ONE USE IN
PEACETIME AND ANOTHER USE IN WARTIME, YOU ARE TO DISTINGUISH BETWEEN
INFORMATION RELATING TO THE ONE OR THE OTHER USE.  ... 

"THE INFORMATION, DOCUMENT OR NOTE MIGHT ALSO RELATE TO THE
POSSESSION OF SUCH INFORMATION BY ANOTHER NATION AND AS SUCH MIGHT ALSO
COME WITHIN THE POSSIBLE SCOPE OF THIS STATUTE.  ...  FOR FROM THE
STANDPOINT OF MILITARY OR NAVAL STRATEGY IT MIGHT NOT ONLY BE DANGEROUS
TO US FOR A FOREIGN POWER TO KNOW OUR WEAKNESSES AND OUR LIMITATIONS,
BUT IT MIGHT ALSO BE DANGEROUS TO US WHEN SUCH A FOREIGN POWER KNOWS
THAT WE KNOW THAT THEY KNOW OF OUR LIMITATIONS. 

"YOU ARE, THEN, TO REMEMBER THAT THE INFORMATION, DOCUMENTS OR NOTES,
WHICH ARE ALLEGED TO HAVE BEEN CONNECTED WITH THE NATIONAL DEFENSE, MAY
RELATE OR PERTAIN TO THE USEFULNESS, EFFICIENCY OR AVAILABILITY OF ANY
OF THE ABOVE PLACES, INSTRUMENTALITIES OR THINGS FOR THE DEFENSE OF THE
UNITED STATES OF AMERICA.  THE CONNECTION MUST NOT BE A STRAINED ONE
NOR AN ARBITRARY ONE.  THE RELATIONSHIP MUST BE REASONABLE AND
DIRECT."  PETITIONERS' OBJECTION, HOWEVER, IS THAT AFTER HAVING GIVEN
THESE INSTRUCTIONS, THE COURT INSTEAD OF DETERMINING WHETHER THE
REPORTS WERE OR WERE NOT CONNECTED WITH NATIONAL DEFENSE, LEFT THIS
QUESTION TO THE JURY IN THESE WORDS: 

"WHETHER OR NOT THE INFORMATION, OBTAINED BY ANY DEFENDANT IN THIS
CASE, CONCERNED, REGARDED OR WAS CONNECTED WITH THE NATIONAL DEFENSE IS
A QUESTION OF FACT SOLELY FOR THE DETERMINATION OF THIS JURY, UNDER
THESE INSTRUCTIONS." 

THESE QUOTATIONS SHOW THAT THE TRIAL COURT UNDERTOOK TO GIVE TO THE
JURY THE TESTS BY WHICH THEY WERE TO DETERMINE WHETHER THE ACTS OF THE
PETITIONERS WERE CONNECTED WITH OR RELATED TO THE NATIONAL DEFENSE.  WE
ARE OF THE OPINION THIS WAS PROPERLY LEFT TO THE JURY.  IF WE ASSUME,
AS WE MUST HERE AFTER OUR EARLIER DISCUSSION AS TO THE DEFINITENESS OF
THE STATUTE, THAT THE WORDS OF THE STATUTE ARE SUFFICIENTLY SPECIFIC TO
ADVISE THE ORDINARY MAN OF ITS SCOPE, WE THINK IT FOLLOWS THAT THE
WORDS OF THE INSTRUCTIONS GIVE ADEQUATE DEFINITION TO "CONNECTED WITH"
OR "RELATING TO" NATIONAL DEFENSE.  THE INQUIRY DIRECTED AT THE
INSTRUCTIONS IS WHETHER THE JURY IS GIVEN SUFFICIENT GUIDANCE TO ENABLE
IT TO DETERMINE WHETHER THE ACTS OF THE PETITIONERS WERE WITHIN THE
PROHIBITIONS.  THESE INSTRUCTIONS SET OUT THE DEFINITION OF NATIONAL
DEFENSE IN A MANNER FAVORABLE AND UNOBJECTIONABLE TO PETITIONERS.  WHEN
THEY REFER TO FACTS CONNECTED WITH OR RELATED TO DEFENSE, HOWEVER,
PETITIONERS URGE THAT THE CONNECTION SHOULD BE DETERMINED BY THE
COURT.  INSTRUCTIONS CAN, OF COURSE, GO NO FARTHER THAN TO SAY THE
CONNECTION MUST BE REASONABLE, DIRECT AND NATURAL.  FURTHER ELABORATION
WOULD NOT CLARIFY.  THE FUNCTION OF THE COURT IS TO INSTRUCT AS TO THE
KIND OF INFORMATION WHICH IS VIOLATIVE OF THE STATUTE, AND OF THE JURY
TO DECIDE WHETHER THE INFORMATION SECURED IS OF THE DEFINED KIND.  IT
IS NOT THE FUNCTION OF THE COURT, WHERE REASONABLE MEN MAY DIFFER, TO
DETERMINE WHETHER THE ACTS DO OR DO NOT COME WITHIN THE AMBIT OF THE
STATUTE.  THE QUESTION OF THE CONNECTION OF THE INFORMATION WITH
NATIONAL DEFENSE IS A QUESTION OF FACT TO BE DETERMINED BY THE JURY AS
NEGLIGENCE UPON UNDISPUTED FACTS IS DETERMINED.  FN16 

IN A TRIAL UNDER AN INDICTMENT FOR VIOLATION OF SEC. 3  FN17  OF THIS
SAME ESPIONAGE ACT, THIS COURT HAD OCCASION TO CONSIDER A SIMILAR
QUESTION AS TO THE FUNCTION OF THE JURY.  A PAMPHLET WAS INTRODUCED AS
EVIDENCE OF MAKING FALSE STATEMENTS WITH THE INTENT TO CAUSE
INSUBORDINATION.  TO THE OBJECTION THAT THE PAMPHLET COULD NOT
LEGITIMATELY BE CONSTRUED AS TENDING TO PRODUCE THE PROHIBITED
CONSEQUENCES THIS COURT SAID:  "WHAT INTERPRETATION OUGHT TO BE PLACED
UPON THE PAMPHLET, WHAT WOULD BE THE PROBABLE EFFECT OF DISTRIBUTING IT
IN THE MODE ADOPTED, AND WHAT WERE DEFENDANTS' MOTIVES IN DOING THIS,
WERE QUESTIONS FOR THE JURY, NOT THE COURT, TO DECIDE.  ... WHETHER THE
PRINTED WORDS WOULD IN FACT PRODUCE AS A PROXIMATE RESULT A MATERIAL
INTERFERENCE WITH THE RECRUITING OR ENLISTMENT SERVICE, OR THE
OPERATION OR SUCCESS OF THE FORCES OF THE UNITED STATES, WAS A QUESTION
FOR THE JURY TO DECIDE IN VIEW OF ALL THE CIRCUMSTANCES OF THE TIME AND
CONSIDERING THE PLACE AND MANNER OF DISTRIBUTION."  FN18 

VIEWING THE INSTRUCTIONS AS A WHOLE, WE FIND NO OBJECTION SUFFICIENT
TO JUSTIFY REVERSAL. 

THE CIRCUIT COURT OF APPEALS PROPERLY REFUSED TO CONSIDER THE ERRORS
ALLEGED WITH RESPECT TO THE CONSPIRACY COUNT.  FN19  AFFIRMED. 

FN1  ESPIONAGE ACT OF JUNE 15, 1917, C. 30, 40 STAT. 217: 

"TITLE I. ESPIONAGE.  SECTION 1.  THAT (A) WHOEVER, FOR THE PURPOSE
OF OBTAINING INFORMATION RESPECTING THE NATIONAL DEFENSE WITH INTENT OR
REASON TO BELIEVE THAT THE INFORMATION TO BE OBTAINED IS TO BE USED TO
THE INJURY OF THE UNITED STATES, OR TO THE ADVANTAGE OF ANY FOREIGN
NATION, GOES UPON, ENTERS, FLIES OVER, OR OTHERWISE OBTAINS INFORMATION
CONCERNING ANY VESSEL, AIRCRAFT, WORK OF DEFENSE, NAVY YARD, NAVAL
STATION, SUBMARINE BASE, COALING STATION, FORT, BATTERY, TORPEDO
STATION, DOCKYARD, CANAL, RAILROAD, ARSENAL, CAMP, FACTORY, MINE,
TELEGRAPH, TELEPHONE, WIRELESS, OR SIGNAL STATION, BUILDING, OFFICE, OR
OTHER PLACE CONNECTED WITH THE NATIONAL DEFENSE,  ...  OR ANY PLACE IN
WHICH ANY VESSEL, AIRCRAFT, ARMS, MUNITIONS, OR OTHER MATERIALS OR
INSTRUMENTS FOR USE IN TIME OF WAR ARE BEING MADE, PREPARED, REPAIRED,
OR STORED, ...  ; OR (B) WHOEVER FOR THE PURPOSE AFORESAID, AND WITH
LIKE INTENT OR REASON TO BELIEVE, COPIES, TAKES, MAKES, OR OBTAINS, OR
ATTEMPTS, OR INDUCES OR AIDS ANOTHER TO COPY, TAKE, MAKE, OR OBTAIN,
ANY SKETCH, PHOTOGRAPH, PHOTOGRAPHIC NEGATIVE, BLUE PRINT, PLAN, MAP,
MODEL, INSTRUMENT, APPLIANCE, DOCUMENT, WRITING, OR NOTE OF ANYTHING
CONNECTED WITH THE NATIONAL DEFENSE; ...  SHALL BE PUNISHED BY A FINE
OF NOT MORE THAN $10,000, OR BY IMPRISONMENT FOR NOT MORE THAN TWO
YEARS, OR BOTH. 

"SEC. 2.  (A)  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
FOR NOT MORE THAN THIRTY YEARS; AND (B) WHOEVER, IN TIME OF WAR, WITH
INTENT THAT THE SAME SHALL BE COMMUNICATED TO THE ENEMY, SHALL COLLECT,
RECORD, PUBLISH, OR COMMUNICATE, OR ATTEMPT TO ELICIT ANY INFORMATION
WITH RESPECT TO THE MOVEMENT, NUMBERS, DESCRIPTION, CONDITION, OR
DISPOSITION OF ANY OF THE ARMED FORCES, SHIPS, AIRCRAFT, OR WAR
MATERIALS OF THE UNITED STATES, OR WITH RESPECT TO THE PLANS OR
CONDUCT, OR SUPPOSED PLANS OR CONDUCT OF ANY NAVAL OR MILITARY
OPERATIONS, OR WITH RESPECT TO ANY WORKS OR MEASURES UNDERTAKEN FOR OR
CONNECTED WITH, OR INTENDED FOR THE FORTIFICATION OR DEFENSE OF ANY
PLACE, OR ANY OTHER INFORMATION RELATING TO THE PUBLIC DEFENSE, WHICH
MIGHT BE USEFUL TO THE ENEMY, SHALL BE PUNISHED BY DEATH OR BY
IMPRISONMENT FOR NOT MORE THAN THIRTY YEARS. 

     .         .         .         .         . 

"SEC. 4.  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.  ...  " 

FN2  H.R. 291, 65TH CONG., 1ST SESS.; CONFERENCE REPORT NO. 69, 55
CONG. REC. 3301. 

FN3  OTHER TITLES SUCH AS NEUTRALITY, FOREIGN COMMERCE AND AT ONE
TIME CENSORSHIP, 55 CONG. REC. 2097, 2102; 2109-2111; 2262; 2265; 3145;
3259; 3266, ADDED TO THE DIFFICULTIES. 

FN4  THAT DEFINITION READ:  "SECTION 1202.  THE TERM 'NATIONAL
DEFENSE' AS USED HEREIN SHALL INCLUDE ANY PERSON, PLACE, OR THING IN
ANYWISE HAVING TO DO WITH THE PREPARATION FOR OR THE CONSIDERATION OR
EXECUTION OF ANY MILITARY OR NAVAL PLANS, EXPEDITIONS, ORDERS,
SUPPLIES, OR WARFARE FOR THE ADVANTAGE, DEFENSE, OR SECURITY OF THE
UNITED STATES OF AMERICA." 

FN5  55 CONG. REC. 3306.  SUBSEQUENT LEGISLATION RELATING TO THE
PROTECTION OF NATIONAL DEFENSE INFORMATION IS NOT IMPORTANT.  THE ACT
OF JANUARY 12, 1938, 52 STAT. 3, IS TO PROTECT AGAINST INNOCENT
DISCLOSURES.  S. REP. 108, 75TH CONG., 2ND SESS. 

PUBLIC NO. 443, 76TH CONG., 3D SESS., IS MERELY AN INCREASE OF
PENALTIES. 

FN6  CF. UNITED STATES V. AMERICAN TRUCKING ASS'NS, 310 U.S. 534,
543. 

FN7  UNITED STATES V. REESE, 92 U.S. 214. 

FN8 LANZETTA V. NEW JERSEY, 306 U.S. 451. 

FN9  255 U.S. 81, 89. 

FN10  "THAT IT IS HEREBY MADE UNLAWFUL FOR ANY PERSON WILLFULLY  ...
TO MAKE ANY UNJUST OR UNREASONABLE RATE OR CHARGE IN HANDLING OR
DEALING IN OR WITH ANY NECESSARIES."  ACT OF OCTOBER 22, 1919, C. 80,
SEC. 2, 41 STAT. 297. 

FN11  306 U.S. 451. 

FN12  CRIMINAL STATUTES DEEMED VAGUE:  INTERNATIONAL HARVESTER CO. V.
KENTUCKY, 234 U.S. 216, 221-224(RAISING PRICES ABOVE "MARKET VALUE
UNDER FAIR COMPETITION, AND UNDER NORMAL MARKET CONDITIONS"); COLLINS
V. KENTUCKY, 234 U.S. 634(SAME); WEEDS, INC. V. UNITED STATES, 255 U.S.
109(EXACTING "EXCESSIVE PRICES FOR ANY NECESSARIES"); STROMBERG V.
CALIFORNIA, 283 U.S. 359, 369(DISPLAYING ANY "SYMBOL OR EMBLEM OF
OPPOSITION TO ORGANIZED GOVERNMENT"); SMITH V. CAHOON, 283 U.S. 553,
564-565(SUCH PROVISIONS REGULATING COMMON CARRIERS AS COULD
CONSTITUTIONALLY BE APPLIED TO PRIVATE CARRIERS); HERNDON V. LOWRY, 301
U.S. 242, 261-264(DISTRIBUTION OF PAMPHLETS INTENDED AT ANY TIME IN THE
FUTURE TO LEAD TO FORCIBLE RESISTANCE TO LAW). 

FN13  CF. ADEQUATELY DEFINITE CRIMINAL STATUTES:  LLOYD V. DOLLISON,
194 U.S. 445, 450(LIQUOR RESTRICTIONS VARYING ACCORDING TO SALE AT
"WHOLESALE" OR "RETAIL"); WATERS-PIERCE OIL CO. V. TEXAS (NO. 1), 212
U.S. 86, 108-111(CONTRACTS "REASONABLY CALCULATED" OR WHICH "TEND" TO
FIX PRICES); NASH V. UNITED STATES, 229 U.S. 373, 376-378(UNREASONABLE
OR UNDUE RESTRAINTS OF TRADE); OMAECHEVARRIA V. IDAHO, 246 U.S. 343,
345, 348("ANY CATTLE RANGE PREVIOUSLY  ...  OR  ...  USUALLY OCCUPIED
BY ANY CATTLE GROWER"); HYGRADE PROVISION CO. V. SHERMAN, 266 U.S. 497,
501-503(MEAT REPRESENTED TO BE "KOSHER"); MILLER V. OREGON, 273 U.S.
657(DANGEROUS RATE OF SPEED; SEE 274 U.S. AT 464-465); UNITED STATES V.
ALFORD, 274 U.S. 264, 267(BUILDING FIRES "NEAR" ANY FOREST OR
INFLAMMABLE MATERIAL); UNITED STATES V. WURZBACH, 280 U.S. 396,
399(RECEIVING CONTRIBUTIONS FOR "ANY POLITICAL PURPOSE WHATEVER");
UNITED STATES V. SHREVEPORT GRAIN & ELEVATOR CO., 287 U.S. 77, 81
82("REASONABLE VARIATIONS" IN WEIGHT OR MEASURE); KAY V. UNITED STATES,
303 U.S. 1, 8-9("ORDINARY FEES  ...  FOR SERVICES ACTUALLY RENDERED"). 

FN14  CF. HYGRADE PROVISION CO. V. SHERMAN, 266 U.S. 497, 501. 

FN15  36 STAT. 1084:  "THAT WHOEVER, FOR THE PURPOSE OF OBTAINING
INFORMATION RESPECTING THE NATIONAL DEFENSE, TO WHICH HE IS NOT
LAWFULLY ENTITLED, GOES UPON ANY VESSEL, OR ENTERS ANY NAVY-YARD, NAVAL
STATION, FORT, BATTERY, TORPEDO STATION, ARSENAL, CAMP, FACTORY,
BUILDING, OFFICE, OR OTHER PLACE CONNECTED WITH THE NATIONAL DEFENSE,
OWNED OR CONSTRUCTED OR IN PROCESS OF CONSTRUCTION BY THE UNITED STATES
... " 

FN16  GRAND TRUNK RY. CO. V. IVES, 144 U.S. 408, 417; GUNNING V.
COOLEY, 281 U.S. 90, 94.  CF. DUNLOP V. UNITED STATES, 165 U.S. 486,
500-501.    FN17  40 STAT. 217, 219, C. 30: 

"SEC. 3.  WHOEVER, WHEN THE UNITED STATES IS AT WAR, SHALL WILLFULLY
MAKE OR CONVEY FALSE REPORTS OR FALSE STATEMENTS WITH INTENT TO
INTERFERE WITH THE OPERATION OR SUCCESS OF THE MILITARY OR NAVAL FORCES
OF THE UNITED STATES OR TO PROMOTE THE SUCCESS OF ITS ENEMIES AND
WHOEVER, WHEN THE UNITED STATES IS AT WAR, SHALL WILLFULLY CAUSE OR
ATTEMPT TO CAUSE INSUBORDINATION, DISLOYALTY, MUTINY, OR REFUSAL OF
DUTY, IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES, OR SHALL
WILLFULLY OBSTRUCT THE RECRUITING OR ENLISTMENT SERVICE OF THE UNITED
STATES, TO THE INJURY OF THE SERVICE OR OF THE UNITED STAES, SHALL BE
PUNISHED BY A FINE OF NO MORE THAN $10,000 OR IMPRISONMENT FOR NOT MORE
THAN TWENTY YEARS, OR BOTH." 

FN18  PIERCE V. UNITED STATES, 252 U.S. 239, 250.  JUSTICES BRANDEIS
AND HOLMES DISSENTED, LARGELY ON THE GROUND THAT THE JURY SHOULD NOT BE
LEFT TO DECIDE WHETHER STATEMENTS IN THE PAMPHLET WERE FACTS OR
CONCLUSIONS.  ID., P. 269. 

FN19  BROOKS V. UNITED STATES, 267 U.S. 432, 441. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







UNITED STATES V. COWDEN MFG. CO., 312 U.S. 34 


NO. 188.  ARGUED DECEMBER 20, 1940.  - DECIDED JANUARY 13, 1941.  - 91
CT. CLS. 75 - 32 F.SUPP.  141, REVERSED. 


A CONTRACT WITH THE UNITED STATES FOR FURNISHING A QUANTITY OF
GARMENTS STIPULATED THAT THE PRICE PAYABLE TO THE CONTRACTOR SHOULD BE
INCREASED TO THE EXTENT OF SUCH SUBSEQUENTLY IMPOSED FEDERAL TAXES AS
ARE "MADE APPLICABLE DIRECTLY UPON THE PRODUCTION, MANUFACTURE, OR SALE
OF THE SUPPLIES COVERED BY THIS CONTRACT AND ARE PAID BY THE CONTRACTOR
ON THE ARTICLES HEREIN CONTRACTED FOR  ..."  HELD NOT TO OBLIGATE THE
UNITED STATES IN RESPECT TO TAXES SUBSEQUENTLY IMPOSED UNDER THE
AGRICULTURAL ADJUSTMENT ACT ON THE PROCESSING OF MATERIALS SOLD TO THE
CONTRACTOR AND USED IN THE MANUFACTURE OF THE GARMENTS, FOR WHICH TAXES
THE PROCESSORS WERE REIMBURSED BY THE CONTRACTOR PURSUANT TO AGREEMENTS
BETWEEN THEM.  P. 36. 

THE TAXES IN QUESTION WERE NOT "DIRECTLY" APPLICABLE TO THE
MANUFACTURE OF THE "SUPPLIES COVERED BY THIS CONTRACT," NOR "PAID BY
THE CONTRACTOR," WITHIN THE MEANING OF THE CONTRACT. 

UNITED STATES V. COWDEN MANUFACTURING CO. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 311 U.S. 624, TO REVIEW A JUDGMENT AGAINST THE UNITED
STATES IN A SUIT UPON A CONTRACT. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

RESPONDENT SEEKS REIMBURSEMENT FROM THE UNITED STATES OF THE AMOUNTS
PAID TO PROCESSORS TO COMPENSATE THEM FOR PROCESSING TAXES PAID ON
COTTON GOODS SOLD TO RESPONDENT.  THE SUIT IS BASED ON A CONTRACT
BETWEEN RESPONDENT AND THE UNITED STATES, RATHER THAN ON TITLE VII OF
THE REVENUE ACT OF 1936(49 STAT. 1648, 1747), WHICH AUTHORIZES REFUNDS
TO PROCESSORS, UNDER CERTAIN CIRCUMSTANCES, OF PROCESSING TAXES
ILLEGALLY COLLECTED UNDER THE AGRICULTURAL ADJUSTMENT ACT (48 STAT.
31).  THE QUESTION IS WHETHER THE "FEDERAL TAXES" CLAUSE OF THE
CONTRACT OBLIGATES THE UNITED STATES TO MAKE THE REIMBURSEMENT. 

PRIOR TO JUNE 6, 1933, THE WAR DEPARTMENT CALLED FOR BIDS ON A
CONTRACT TO FURNISH A CERTAIN KIND OF MECHANIC'S SUIT.  ON JUNE 6,
1933, RESPONDENT SUBMITTED ITS BID, AND ON JUNE 24, 1933, EXECUTED A
CONTRACT WITH THE UNITED STATES WHEREBY RESPONDENT AGREED TO FURNISH A
SPECIFIED NUMBER OF THE SUITS AT A STATED PRICE.  THE CONTRACT
PROVIDED, IN THE "FEDERAL TAXES" CLAUSE, THAT: "PRICES SET FORTH HEREIN
INCLUDE ANY FEDERAL TAX HERETOFORE IMPOSED BY THE CONGRESS WHICH IS
APPLICABLE TO THE MATERIAL PURCHASED UNDER THIS CONTRACT.  IF ANY SALES
TAX, PROCESSING TAX, ADJUSTMENT CHARGE, OR OTHER TAXES OR CHARGES ARE
IMPOSED OR CHANGED BY THE CONGRESS AFTER THE DATE SET FOR THE OPENING
OF THE BID UPON WHICH THIS CONTRACT IS BASED AND MADE APPLICABLE
DIRECTLY UPON THE PRODUCTION, MANUFACTURE, OR SALE OF THE SUPPLIES
COVERED BY THIS CONTRACT AND ARE PAID BY THE CONTRACTOR ON THE ARTICLES
OR SUPPLIES HEREIN CONTRACTED FOR, THEN THE PRICES NAMED IN THIS
CONTRACT WILL BE INCREASED OR DECREASED ACCORDINGLY.  ..." 

TO PERFORM ITS CONTRACT WITH THE UNITED STATES, RESPONDENT CONTRACTED
TO PURCHASE COTTON CLOTH, THREAD, AND LABELS FROM SUBCONTRACTORS WHO
WERE LIABLE, AS PROCESSORS, TO PAY ANY PROCESSING TAXES LEVIED ON THE
ARTICLES SOLD TO RESPONDENT.  AT THE TIME THESE CONTRACTS WERE MADE NO
TAXES WERE IN EFFECT ON THE PROCESSING OF COTTON, BUT IN ANTICIPATION
OF SUCH TAXES RESPONDENT AND THE SUBCONTRACTORS AGREED THAT RESPONDENT
WOULD REIMBURSE THEM FOR ANY TAXES THEY WERE REQUIRED TO PAY ON THE
PROCESSING OF GOODS SOLD TO RESPONDENT, THE TAXES TO BE BILLED AS A
SEPARATE ITEM.  THEREAFTER, RESPONDENT RECEIVED THE GOODS COVERED BY
THESE CONTRACTS AND COMPENSATED THE SUBCONTRACTORS FOR THE TAXES THEY
WERE LATER REQUIRED TO PAY ON THE PROCESSING OF THE COTTON.  IT HAS
PERFORMED ITS CONTRACT WITH THE UNITED STATES AND NOW CLAIMS THAT THE
QUOTED PROVISION OBLIGATES THE UNITED STATES TO PAY RESPONDENT THE
AMOUNTS IT HAS PAID ITS SUBCONTRACTORS TO COMPENSATE THEM FOR THE
PROCESSING TAXES THEY HAVE PAID.  BECAUSE THE COMPTROLLER GENERAL
REJECTED ITS CLAIM, RESPONDENT BROUGHT THIS SUIT IN THE COURT OF CLAIMS
AND OBTAINED JUDGMENT.  91 CT. CLS. 75; 32 F.SUPP.  141.  WE GRANTED
CERTIORARI ON OCTOBER 14, 1940, TO RESOLVE THE UNCERTAINTY AS TO THE
CORRECT CONSTRUCTION OF THE "FEDERAL TAXES" CLAUSE WHICH APPEARS IN A
LARGE NUMBER OF GOVERNMENT CONTRACTS. 

THE ONLY QUESTION IS WHETHER THE UNITED STATES, IN THE "FEDERAL
TAXES" CLAUSE, HAS AGREED TO PAY RESPONDENT THE AMOUNT RESPONDENT PAID
ITS SUBCONTRACTORS TO REIMBURSE THEM FOR TAXES PAID ON THE PROCESSING
OF THE GOODS SOLD TO RESPONDENT.  WE HOLD THAT IT HAS NOT. 

WE ARE OF OPINION THAT THE "FEDERAL TAXES" CLAUSE DOES NOT OBLIGATE
THE UNITED STATES TO REIMBURSE ITS CONTRACTOR FOR TAXES WHICH THE
LATTER HAS BORNE MERELY AS A MATTER OF CONTRACT WITH ITS
SUBCONTRACTORS.  ON THE CONTRARY, THE FAIR IMPORT OF THE CLAUSE IS THAT
THE UNITED STATES MUST MAKE REIMBURSEMENT ONLY FOR SUCH TAXES AS THE
CONTRACTOR HAS PAID PURSUANT TO AN OBLIGATION IMPOSED UPON HIM BY THE
STATUTE WHICH EXACTS THE TAX. 

THE LANGUAGE OF THE CLAUSE IS PRECISE.  IT PROVIDES ONLY FOR
REIMBURSEMENT OF THOSE TAXES WHICH ARE "MADE APPLICABLE DIRECTLY UPON
THE PRODUCTION, MANUFACTURE, OR SALE OF THE SUPPLIES COVERED BY THIS
CONTRACT."  THE SUPPLIES "COVERED BY THIS CONTRACT" ARE THE MECHANICS'
SUITS, THE COMPLETED ARTICLES FURNISHED TO THE UNITED STATES.  SINCE
THE CLAUSE FURTHER PROVIDES IN EXACT LANGUAGE THAT THE TAX MUST BE
"DIRECTLY" APPLICABLE, WE CANNOT AGREE THAT A TAX ON THE CLOTH, THREAD,
AND LABELS IS A TAX ON THE "SUPPLIES COVERED BY THIS CONTRACT." 
COMPARE TELESCOPE FOLDING FURNITURE CO. V. UNITED STATES, 31 F.SUPP. 
780, 784; UNITED STATES V. GLENN L. MARTIN CO., 308 U.S. 62. 

MOREOVER, THE CLAUSE STIPULATES FOR REIMBURSEMENT OF TAXES "PAID BY
THE CONTRACTOR."  IT IS REASONABLE TO CONCLUDE THAT THIS PHRASE ALSO
CONTEMPLATES PAYMENT OF TAXES TO THE UNITED STATES IN CONSEQUENCE OF AN
OBLIGATION IMPOSED BY STATUTE UPON RESPONDENT.  FOR WHILE IN A SENSE,
PERHAPS, RESPONDENT "PAID" THESE PROCESSING TAXES, IT IS MORE ACCURATE
TO SAY THAT THEY WERE "PAID" BY THE SUBCONTRACTORS WHO MERELY SHIFTED
THEIR BURDEN TO RESPONDENT AS A SEPARATE ITEM OF THE CONTRACT PRICE. 
THE CLAUSE AS A WHOLE INDICATES THAT THIS WAS THE SENSE TO BE
ATTRIBUTED TO THE PHRASE QUOTED. 

A CONTRARY CONSTRUCTION OF THE "FEDERAL TAXES" CLAUSE INTRODUCES
DIFFICULTIES NOT CONTEMPLATED BY THE PARTIES.  IT WOULD FORCE THEM TO
TRACE THE TAXES BACK TO THE ONE UPON WHOM THE OBLIGATION FIRST RESTED,
WHETHER THE SUBSEQUENT TRANSACTIONS WERE SIMPLE OR COMPLEX.  FOR IF IT
COULD BE SAID IN THIS CASE THAT THE PROCESSING TAXES WERE IMPOSED ON
THE SUPPLIES COVERED BY THE CONTRACT AND WERE PAID BY THE CONTRACTOR,
IT WOULD BE IMMATERIAL HOW FAR THE CONTRACTOR WERE REMOVED FROM THE
ORIGINAL PROCESSOR IF THE FORMER COULD SHOW THAT THE BURDEN OF THE TAX
HAD BEEN SHIFTED AS THE PROCESSED ARTICLES HAD CHANGED HANDS AND
PERHAPS FORM.  WE CAN FIND NOTHING WHICH SUGGESTS THAT THE PARTIES
INTENDED TO DRAFT A CLAUSE THAT WOULD OPERATE IN SUCH FASHION. 

WE CONCLUDE THAT THE QUOTED CLAUSE DOES NOT OBLIGATE THE UNITED
STATES TO COMPENSATE RESPONDENT FOR TAXES WHICH WERE PAID BY ITS
SUBCONTRACTORS AND WERE MERELY SHIFTED TO RESPONDENT PURSUANT TO THEIR
SUBCONTRACT.  THE JUDGMENT OF THE COURT OF CLAIMS IS REVERSED AND THE
CAUSE IS REMANDED WITH DIRECTIONS TO DISMISS THE PETITION.  REVERSED. 
..END :











Z. & F. ASSETS CORP. V. HULL, 311 U.S. 470 


NO. 381.  ARGUED DECEMBER 9, 10, 1940.  - DECIDED JANUARY 6, 1941.  -
114 F.2D 464, AFFIRMED. 


HOLDERS OF AWARDS BY THE MIXED CLAIMS COMMISSION, UNITED STATES AND
GERMANY, WHICH WERE CERTIFIED BY THE SECRETARY OF STATE UNDER THE
SETTLEMENT OF WAR CLAIMS ACT OF 1928 AND WERE PAYABLE BY THE SECRETARY
OF THE TREASURY FROM THE SPECIAL FUND ESTABLISHED BY THAT ACT, SUED TO
RESTRAIN THE SECRETARY OF STATE FROM CERTIFYING AND THE SECRETARY OF
THE TREASURY FROM PAYING LATER AWARDS TO OTHER CLAIMANTS, ALLEGING THAT
BECAUSE THE GERMAN COMMISSIONER HAD WITHDRAWN, AND FOR OTHER REASONS
RELATIVE TO THE POWER AND PROCEDURE OF THE COMMISSION, THE LATER AWARDS
WERE NULL AND VOID, AND THAT IF ALLOWED TO PARTICIPATE IN THE FUND THEY
WOULD SO DEPLETE IT THAT THE AWARDS OF THE PLAINTIFFS COULD NOT BE
SATISFIED.  AFTER THE FILING OF THE BILL, AND BEFORE SERVICE, THE
AWARDS COMPLAINED OF WERE CERTIFIED BY THE SECRETARY OF STATE.  HELD: 

1.  THAT THE PETITIONERS WERE ENTITLED TO SUE TO PROTECT SUCH
INTEREST AS THEY MIGHT HAVE UNDER THE ACT; BUT AS THEIR STANDING RESTED
SOLELY UPON THE PROVISIONS OF THE ACT THEY COULD NOT ESCAPE ITS TERMS
OR AVOID PAYMENTS FOR WHICH THE ACT IS FOUND TO PROVIDE.  P. 485. 

2.  THE CERTIFICATION BY THE SECRETARY OF STATE WHICH THE ACT
REQUIRES AS A CONDITION TO PAYMENT OF AN AWARD IS NOT A MINISTERIAL ACT
MEANING MERELY THAT THE AWARD CERTIFIED IS A GENUINE DOCUMENT, BUT IS
ASSURANCE BY THE SECRETARY THAT THE PROCEEDINGS LEADING TO THE AWARD
WERE SUCH AS DULY TO QUALIFY IT FOR PAYMENT FROM THE SPECIAL FUND.  P.
486. 

CONGRESS HAD CONSTITUTIONAL POWER TO LODGE WITH THE SECRETARY OF
STATE THE AUTHORITY TO CONSIDER AND PASS UPON THE REGULARITY AND
VALIDITY OF THE AWARDS MADE BY THE MIXED CLAIMS COMMISSION FOR THE
STATUTORY PURPOSE OF QUALIFYING THEM FOR PAYMENT OUT OF THE ACCOUNT IN
THE TREASURY; AND IN VIEW OF THE FUNCTIONS OF THE SECRETARY OF STATE,
THE NATURE OF THE CLAIMS AND THE CONTENTIONS TO WHICH THEY MIGHT GIVE
RISE BETWEEN THE TWO GOVERNMENTS CONCERNED, CONGRESS NATURALLY REQUIRED
HIS VIEWS, WITH RESPECT TO THE PROPRIETY OF PAYING AWARDS FROM THAT
FUND. 

3.  THERE IS NO BASIS IN THIS CASE FOR CONCLUDING THAT THE SECRETARY
OF STATE IN CERTIFYING THE QUESTIONED AWARDS ACTED WITHOUT DUE
DELIBERATION OR FAILED TO EXPRESS HIS CONSIDERATE JUDGMENT, AS THE
STATUTE CONTEMPLATED.  P. 488. 

4.  FOR THE PURPOSE OF PAYMENT UNDER THE STATUTE THE CERTIFICATION OF
THE SECRETARY OF STATE IS CONCLUSIVE.  P. 489. 

IT IS UNNECESSARY TO CONSIDER IN THIS CASE WHETHER CONGRESS COULD
COMMIT TO THE JUDICIARY THE DETERMINATION OF THE VALIDITY OF THE
CHALLENGED CLAIMS. 

5.  IN VIEW OF THE STATUTORY PROVISIONS GOVERNING THE CASE, THERE IS
NO OCCASION TO CONSIDER THE CIRCUMSTANCES IN WHICH AN INTERNATIONAL
AGREEMENT OR ACTION THEREUNDER MAY BE DEEMED TO VEST RIGHTS IN PRIVATE
PERSONS OR THE SCOPE OF SUCH RIGHTS IN PARTICULAR CASES.  P. 489. 

Z. & F. ASSETS REALIZATION CORP. V. HULL, SECRETARY OF STATE, ET AL.* 

*TOGETHER WITH NO. 382, AMERICAN-HAWAIIAN STEAMSHIP CO. V. HULL,
SECRETARY OF STATE, ET AL., ALSO ON WRIT OF CERTIORARI, POST, P. 632,
TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, POST, P. 632, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING THE BILLS IN SUITS TO RESTRAIN ACTION BY THE SECRETARIES OF
STATE AND OF THE TREASURY. 

MR. JOSEPH M. PROSKAUER, WITH WHOM MESSRS.  FRANK ROBERSON, JOHN F.
CONDON, JR., AND JOHN BASSETT MOORE WERE ON THE BRIEF, FOR Z. & F.
ASSETS REALIZATION CORP., PETITIONER IN NO. 381. 

THE CONFLICT BETWEEN THE OLD AWARD HOLDERS AND THE SABOTAGE CLAIMANTS
AS TO THEIR RESPECTIVE RIGHTS TO PAYMENT FROM THE SPECIAL DEPOSIT FUND
IS NOT A POLITICAL CONTROVERSY BEYOND THE JURISDICTION OF THE COURTS TO
DETERMINE. 

WHERE A CONFLICT OF PROPERTY RIGHTS UNDER STATUTES AND TREATIES IS
PRESENTED, THE DETERMINATION OF THOSE RIGHTS BY THE EXECUTIVE
DEPARTMENT IS SUBJECT TO REVIEW BY THE COURTS.  BANCO DE ESPANA V.
FEDERAL RESERVE BANK, 114 F.2D 438, 442.  THE DOCTRINE RELIED ON BY THE
COURT OF APPEALS IN THIS CASE HAS NO APPLICATION WHERE, AS HERE, THE
DECISION OF PROPERTY RIGHTS COULD NOT IN ANY TRULY FACTUAL SENSE BE
DEEMED AN INTERFERENCE WITH THE CONDUCT OF OUR FOREIGN RELATIONS BY THE
EXECUTIVE, NOR A MATTER FOR THE EXECUTIVE EXCLUSIVELY TO DETERMINE. 
WILLOUGHBY, CONST. L., 2D ED., SEC. 855, P. 1336; JAFFE, JUDICIAL
ASPECTS OF FOREIGN RELATIONS, P. 233; THE FLORENCE H., 248 F. 1012;
UNITED STATES V. WATTS, 8 SAWYER 370; UNITED STATES V. RAUSCHER, 119
U.S. 407; TARTAR CHEMICAL CO. V. UNITED STATES, 116 F. 726.  SEE ALSO,
HEAD MONEY CASES, 112 U.S. 580, 598, 599; DEUTSCHE BANK V. CUMMINGS, 83
F.2D 554; 300 U.S. 115; CHAE CHAN PING V. UNITED STATES, 130 U.S. 581;
COLEMAN V. MILLER, 307 U.S. 433, 460. 

THE CERTIFICATE OF THE SECRETARY OF STATE IS A MINISTERIAL ACT AND
NOT CONCLUSIVE OF THE VALIDITY OF AN AWARD.  PETITIONERS HAVE A
PROPERTY RIGHT IN THE SPECIAL DEPOSIT FUND AND ARE ENTITLED TO BRING
THE ACTION.  CF., WILLIAMS V. HEARD, 140 U.S. 529; COMEGYS V. VASSE, 1
PET. 193.  CF., HOUSTON V. ORMES, 252 U.S. 469; PARISH V. MACVEAGH, 214
U.S. 124. 

THIS FUND CONSISTS OF 20% OF THE GERMAN PROPERTY SEIZED DURING THE
WAR, UNALLOCATED INTEREST THEREON, THE SPECIFIC APPROPRIATION BY
CONGRESS OF MORE THAN $86,000,000 AND THE MONEYS RECEIVED UNDER THE
PARIS AGREEMENT OF JANUARY 14, 1925 AND UNDER THE GERMAN-AMERICAN DEBT
AGREEMENT OF JUNE 23, 1930.  REPORT OF SECRETARY OF TREASURY, JUNE 30,
1939, P. 76.  CONSEQUENTLY, THIS ACTION COMES SQUARELY WITHIN THE CASES
HOLDING THAT, WHERE CONGRESS HAS MADE AN APPROPRIATION FOR CERTAIN
PERSONS, THOSE PERSONS MAY RESORT TO THE COURTS FOR THE ENFORCEMENT OF
THEIR RIGHT OF PAYMENT.  IT IS IMMATERIAL THAT THESE WERE MONEYS OF THE
UNITED STATES.  AS SOON AS AN APPROPRIATION IS MADE, UNTIL THAT
APPROPRIATION IS WITHDRAWN, THE DIRECT BENEFICIARIES OF SUCH
APPROPRIATION HAVE RIGHTS WHICH MAY BE PROTECTED IN THE COURTS FROM
IMPROPER ATTACK.  AMERICAN-MEXICAN CLAIMS BUREAU V. MORGENTHAU, 26
F.SUPP.  904, 906. 

THE REAL QUESTION IS BETWEEN TWO CLASSES OF AMERICAN NATIONALS, ONE
OF WHICH SEEKS TO TAKE FROM THE OTHER THE MONEYS THAT HAD BEEN AWARDED
TO IT, HELD IN THE TREASURY OF THE UNITED STATES.  MATTER OF WESTBROOK,
228 APP. DIV. 549, 550. 

IN VIEW OF PETITIONERS' PROPERTY RIGHT, THE DISTRICT COURT HAD
JURISDICTION TO GRANT A DECLARATORY JUDGMENT PROTECTING THEM FROM
PAYMENT OF AWARDS THAT WERE MERE NULLITIES.  MOORE, DIGEST, VOL. VII,
SEC. 1072, P. 30; COMEGYS V. VASSE, 1 PET. 193; STANDARD MARINE INS.
CO. V. WESTCHESTER INS. CO., 19 F.SUPP.  334; AFF'D 93 F.2D 286; CERT.
DEN., 303 U.S. 661; FREVALL V. BACHE, 14 PET. 95. 

THE SECRETARY OF STATE NEITHER READS THE EVIDENCE NOR HEARS THE
ARGUMENTS OF COUNSEL UPON IT. IN NO SENSE, THEREFORE, CAN HIS ACT
PRECLUDE SUBSEQUENT INQUIRY AS TO THE VALIDITY OF THE AWARD, EITHER
NATIONALLY OR INTERNATIONALLY. 

THE SECRETARY OF STATE IN THIS CASE ACTED WITHIN A FEW HOURS, SO HAD
NO TIME TO MAKE ANY JUDICIAL INQUIRY, WHICH HE MUST HAVE ASSUMED WAS
NOT CALLED FOR. 

WHENEVER THE EXECUTIVE DETERMINATION HAS BEEN HELD CONCLUSIVE IN THE
ABSENCE OF A STATUTORY PROVISION FOR A HEARING AND DETERMINATION, THE
STATUTE HAS EITHER EXPRESSLY PROVIDED FOR FINALITY (UNITED STATES V.
BABCOCK, 250 U.S. 328, 331), OR THE CHARACTER OF THE EXECUTIVE
DETERMINATION WAS SUCH AS TO ADMIT OF NO DOUBT THAT DISCRETION HAD
NECESSARILY BEEN CONFERRED.  WILLIAMSPORT CO. V. UNITED STATES, 277
U.S. 551, 559; CF., NEWPORT NEWS CO. V. SCHAUFFLER, 303 U.S. 54, 57;
MYERS V. BETHLEHEM CORP., 303 U.S. 41, 50; ADAMS V. NAGLE, 303 U.S.
532. 

CERTIFICATION WAS NO MORE THAN A VEHICLE OF NOTIFICATION TO THE
SECRETARY OF THE TREASURY THAT THE COMMISSION HAD SIGNED, SEALED AND
ENTERED ITS ALLEGED DECISION.  TRUE, THE SECRETARY OF STATE MIGHT
CHOOSE TO TAKE FURTHER DIPLOMATIC ACTION IF THE ACTION OF THE
COMMISSION WERE UNSATISFACTORY TO HIM (EITHER ON MORAL GROUNDS OR FOR
PALPABLE EXCESS OF POWER); BUT SUCH ACTION WOULD IN NO SENSE SPRING
FROM THE ACT OF CONGRESS, AND HENCE COULD NOT ENLARGE THE MINISTERIAL
QUALITY OF HIS FUNCTION UNDER THE STATUTE.  ORINOCO V. ORINOCO IRON
CO., 296 F. 965; MELLON V. ORINOCO IRON CO., 266 U.S. 121; PERKINS V.
ELG, 307 U.S. 325. 

THAT THE SECRETARY OF STATE IN CERTIFYING WAS PERFORMING A PURELY
MINISTERIAL FUNCTION, IS DEMONSTRATED BY THE FACT THAT HE IS FREQUENTLY
CALLED UPON TO CERTIFY TO THE TREASURY DEPARTMENT INTERNATIONAL
AWARDS.  AMERICAN-MEXICAN CLAIMS BUREAU V. MORGENTHAU, 26 F.SUPP. 
904. 

A FORTIORI IS SUCH A CERTIFICATE NOT CONTROLLING WHEN MADE WITH
KNOWLEDGE OF CONTEMPLATED RESORT TO THE COURTS AND AFTER ACTUAL FILING
OF THE BILL. 

IF THEIR SUIT IS MERITORIOUS, THE PETITIONERS ARE ENTITLED TO HAVE
THE STATUS QUO RESTORED AS OF THE TIME OF THE COMMENCEMENT OF THE
ACTION.  TEXAS & N.O.R. CO. V. NORTHSIDE BELT RY. CO., 276 U.S. 475,
479. 

AN ACTION IS COMMENCED BY THE FILING OF THE COMPLAINT.  FEDERAL RULES
OF CIVIL PROCEDURE, RULE 3.  THEREFORE, THE STATEMENT THAT THE SERVICE
OF PROCESS WAS "TOO LATE" IS COMPLETELY UNJUSTIFIED. 

THE COMMISSION MADE NO AWARDS IN FAVOR OF THE SABOTAGE CLAIMANTS,
BECAUSE, AFTER THE RETIREMENT OF THE GERMAN COMMISSIONER, THE
COMMISSION NO LONGER EXISTED. 

THE COMMISSION MADE NO AWARDS IN FAVOR OF THE SABOTAGE CLAIMANTS,
BECAUSE THE COMMISSION WAS FUNCTUS OFFICIO AND NOT EMPOWERED TO GRANT A
REHEARING. 

THE SHARES OF STOCK OF AGENCY OF CANADIAN CAR & FOUNDRY COMPANY,
LTD., BEING ENTIRELY OWNED BY CANADIAN CAR & FOUNDRY COMPANY, LTD., A
CANADIAN NATIONAL, THE COMMISSION HAD NO JURISDICTION TO GRANT IT ANY
AWARD. 

SINCE ISSUES OF FACT ARE INVOLVED, RESPONDENT-INTERVENER'S
APPLICATION FOR SUMMARY JUDGMENT SHOULD IN ANY EVENT BE DENIED. 

MR. FRED K. NIELSEN FOR AMERICAN-HAWAIIAN STEAMSHIP COMPANY,
PETITIONER IN NO. 382. 

THE COURT BELOW DOES NOT DEAL SPECIFICALLY WITH THE FUNDAMENTAL
CONTENTIONS WHICH HAVE BEEN ADVANCED BY THE PETITIONERS.  THEY HAVE NOT
CONTENDED THAT THERE CAN BE ANY PROCEEDING IN THE NATURE OF A JUDICIAL
REVIEW OF ACTS OF AN INTERNATIONAL COMMISSION.  THEY HAVE FOUND NO
FAULT WITH ANY ACT OF THE COMMISSIONERS OR THE UMPIRE PERFORMED
CONFORMABLY WITH THE TERMS OF THE AGREEMENT OF AUGUST 10, 1922.  THEY
HAVE NOT UNDERTAKEN TO BRING ABOUT ANY JUDICIAL INTERFERENCE WITH THE
CONDUCT OF FOREIGN AFFAIRS BY EXECUTIVE AUTHORITIES. 

THIS SUIT WAS BROUGHT TO PROTECT PROPERTY RIGHTS OF THE PETITIONER IN
FUNDS ON DEPOSIT IN THE TREASURY.  THOSE RIGHTS AND THE RIGHTS WHICH
THE INTERVENER-PETITIONER UNDERTOOK TO PROTECT ARE SUBSTANTIALLY
IDENTICAL.  THE RIGHTS HAVE THEIR FOUNDATION IN (1) TREATY STIPULATIONS
CONCLUDED BY THE UNITED STATES AND GERMANY; (2) PROVISIONS OF AN
AGREEMENT BETWEEN THE TWO COUNTRIES TO GIVE EFFECT TO THOSE TREATY
STIPULATIONS; AND (3) STATUTORY PROVISIONS ENACTED BY CONGRESS TO GIVE
EFFECT TO BOTH THE TREATY STIPULATIONS AND THE PROVISIONS OF THE
SUPPLEMENTAL AGREEMENT. 

THE PETITIONERS HAVE TAKEN THE POSITION THAT THE COURTS HAVE THE
POWER TO DETERMINE WHETHER STATUTORY PROVISIONS FOUND IN THE SETTLEMENT
OF WAR CLAIMS ACT OF 1928 WOULD BE PROPERLY OR IMPROPERLY EXECUTED, IF
ACTION SHOULD BE TAKEN CONFORMABLY TO THE PRAYERS IN THE MOTION OF THE
INTERVENER-RESPONDENT FOR SUMMARY JUDGMENT PRESENTED TO THE DISTRICT
COURT AND IN THE MOTION OF THE DEFENDANTS TO DISMISS THE COMPLAINT AND
THE BILL OF INTERVENTION.  THE LAW OF 1928, OF COURSE, CONTEMPLATES THE
PAYMENT OF VALID AWARDS ONLY, THAT IS, AWARDS MADE IN ACCORDANCE WITH
THE TERMS OF THE AGREEMENT OF AUGUST 10, 1922.  THE PETITIONERS HAVE
CONTENDED THAT, IN PASSING ON QUESTIONS WITH REGARD TO THE EXECUTION OF
THE LAW OF 1928, THE COURTS HAVE THE POWER TO CONSTRUE THE PERTINENT
INTERNATIONAL COVENANTS, TO DETERMINE WHETHER OR NOT VALID AWARDS WERE
RENDERED THROUGH THE ACTS OF A SINGLE COMMISSIONER AND THE UMPIRE.  THE
AGREEMENT OF AUGUST 10, 1922, WAS INCORPORATED BY REFERENCE INTO THE
SETTLEMENT OF WAR CLAIMS ACT OF 1928.  IN CONSTRUING AND APPLYING THE
STATUTE, IT IS NECESSARY AND PROPER FOR THE COURT TO CONSTRUE THE
AGREEMENT.  THE PETITIONERS HAVE INVOKED JUDICIAL ACTION WITH THE
PURPOSE OF PROTECTING IMPORTANT PROPERTY RIGHTS. 

THE AWARDS SAID TO HAVE BEEN MADE IN FAVOR OF THE LEHIGH VALLEY
RAILROAD COMPANY AND OTHERS WERE NOT VALID AWARDS MADE BY THE
COMMISSIONERS NOR BY THE UMPIRE.  THE SO-CALLED AWARDS ARE NOT AWARDS
WITHIN THE MEANING OF THE PROVISIONS OF THE AGREEMENT OF 1922, BECAUSE
THEY ARE NOT AWARDS RENDERED CONFORMABLY TO THE TERMS AND REQUIREMENTS
OF THE AGREEMENT.  THEY ARE SIMPLY INDIVIDUAL ACTS OF ONE COMMISSIONER
AND THE UMPIRE.  THEREFORE, THE PAYMENT OF THESE SO-CALLED AWARDS IS
NOT AUTHORIZED BY THE SETTLEMENT OF WAR CLAIMS ACT OF 1928.  PAYMENT
WOULD BE A MISAPPLICATION OF FUNDS WHICH ARE ON DEPOSIT IN THE TREASURY
DEPARTMENT BY VIRTUE OF THE SETTLEMENT OF WAR CLAIMS ACT. 

CONTENTIONS NOW MADE BY THE PETITIONERS WITH RESPECT TO PERTINENT
STIPULATIONS OF THE AGREEMENT OF AUGUST 10, 1922, ARE IN HARMONY WITH
THE SOUND CONSTRUCTION PUT ON THEM BY COUNSEL FOR THE UNITED STATES IN
THE COURSE OF PROCEEDINGS BEFORE THE CLAIMS COMMISSION TO HAVE SET
ASIDE THE DECISION OF THE COMMISSION DISMISSING IN 1930 THE CLAIMS OF
THE LEHIGH VALLEY RAILROAD COMPANY AND OTHERS.  THAT CONSTRUCTION
COUNSEL FOR THE RESPONDENTS, THE TWO CABINET OFFICERS, DO NOT NOW
UNDERTAKE TO DISCARD, BUT THEY ARGUE THE CASE INVOLVES POLITICAL
QUESTIONS. 

A DETERMINATION OF THE ISSUES IN THE PRESENT CASE WOULD NOT RESULT IN
AN INTERFERENCE BY THE JUDICIARY IN POLITICAL AFFAIRS ARISING IN THE
CONDUCT OF FOREIGN RELATIONS.  THOSE ISSUES INVOLVE JUSTICIABLE
QUESTIONS AND NOT SO-CALLED POLITICAL QUESTIONS, SUCH AS WERE
CONTROLLING IN NUMEROUS CASES CITED IN THE OPINION OF THE COURT OF
APPEALS. 

SOME DIPLOMATIC EXCHANGES REFERRED TO BY THE COURT OF APPEALS HAVE NO
BEARING ON QUESTIONS PERTAINING TO THE POWER OF COURTS OF THE UNITED
STATES TO CONSTRUE FEDERAL STATUTORY PROVISIONS AND INTERNATIONAL
COVENANTS FOR THE PURPOSE OF PROTECTING PRIVATE PROPERTY RIGHTS OR THE
INTEREST OF THE GOVERNMENT, ITS MATERIAL INTERESTS AND ITS INTEREST IN
THE OBSERVANCE OF INTERNATIONAL COVENANTS. 

THIS DIPLOMATIC CORRESPONDENCE DOES REVEAL FACTS TO THE EFFECT THAT
ONE PARTY TO THE PERTINENT COVENANTS HAS CHALLENGED THE VALIDITY OF
ACTS WHICH THE PETITIONERS CONTEND ARE VOID.  IT ALSO REVEALS THAT THE
SECRETARY OF STATE DECLINED TO ENTER INTO A DIPLOMATIC DISCUSSION OF
RULES AND PRINCIPLES OF LAW DETERMINATIVE OF QUESTIONS AS TO THE
PROPRIETY OF THESE ACTS WHICH THE PETITIONERS CONTEND CAN NOT LEGALLY
HAVE THE EFFECT OF DISPOSING OF THE LARGE FUNDS ON DEPOSIT IN THE
TREASURY. 

THE PETITIONERS TAKE THE POSITION THAT THE COURT HAS THE POWER TO
PASS ON THESE QUESTIONS SO FAR AS THEIR PROPER DISPOSITION RESTS WITH
THE AUTHORITIES OF THE GOVERNMENT OF THE UNITED STATES.  THAT IS, THE
COURT IS COMPETENT TO TAKE APPROPRIATE ACTION LOOKING TO A PROPER
APPLICATION OF THE SETTLEMENT OF WAR CLAIMS ACT IN THE LIGHT OF A
RATIONAL INTERPRETATION OF SOME UNAMBIGUOUS TERMS OF THE AGREEMENT OF
AUGUST 10, 1922, TERMS OF A VERY CONVENTIONAL CHARACTER OFTEN EMPLOYED
IN INTERNATIONAL PRACTICE. 

THE PROCEEDING INSTITUTED IN THE DISTRICT COURT IS A "CASE" WITHIN
THE MEANING OF ART. III, SEC. 2, CL. 1 OF THE CONSTITUTION. 

SOLICITOR GENERAL BIDDLE, WITH WHOM ASSISTANT ATTORNEY GENERAL SHEA,
AND MESSRS.  MELVIN H. SIEGEL AND FRANCIS J. MCNAMARA WERE ON THE
BRIEF, FOR CORDELL HULL, SECRETARY OF STATE, AND HENRY MORGENTHAU,
SECRETARY OF THE TREASURY, RESPONDENTS. 

THE QUESTION OF THE VALIDITY OF THE SABOTAGE AWARDS IS OF A POLITICAL
CHARACTER, IS CONCLUSIVELY DETERMINED BY THE CERTIFICATE OF THE
SECRETARY OF STATE, AND IS NOT OPEN TO JUDICIAL INQUIRY. 

APART FROM STATUTE, THE QUESTION OF THE VALIDITY OF THE SABOTAGE
AWARDS IS FOR THE EXCLUSIVE DETERMINATION OF THE EXECUTIVE DEPARTMENT. 

THE CLAIMS OF AMERICAN NATIONALS AGAINST GERMANY PRESENTED TO THE
COMMISSION ARE THE CLAIMS OF THE UNITED STATES; AND FUNDS HELD BY THE
UNITED STATES FOR THE PAYMENT OF AWARDS ARE THE PROPERTY OF THE UNITED
STATES UNTIL PAID TO THE PRIVATE CLAIMANTS.    APART FROM THE STATUTE,
THE SECRETARY OF STATE MAY ACCEPT OR REJECT THE SABOTAGE AWARDS IN HIS
SOLE DISCRETION UNTIL PAYMENT IS ULTIMATELY MADE TO THE PRIVATE
CLAIMANTS. 

THE AUTHORITY OF THE SECRETARY OF STATE TO ACCEPT OR REJECT THE
SABOTAGE AWARDS IN HIS SOLE DISCRETION IS RECOGNIZED AND CONFIRMED IN
THE SETTLEMENT OF WAR CLAIMS ACT. 

IRRESPECTIVE OF THE POLITICAL NATURE OF THE INQUIRY, CERTIFICATION OF
THE SABOTAGE AWARDS BY THE SECRETARY OF STATE IS CONCLUSIVE, AND NOT
SUBJECT TO JUDICIAL REVIEW.    MR. WILLIAM D. MITCHELL, WITH WHOM
MESSRS.  FREDERIC R. COUDERT, LESTER H. WOOLSEY, AMOS J. PEASLEE, AND
JOHN J. MCCLOY WERE ON THE BRIEF, FOR LEHIGH VALLEY RAILROAD COMPANY,
INTERVENER-RESPONDENT. 

THE VALIDITY OF THE AWARDS IS NOT OPEN TO INQUIRY IN THE COURTS AND
THE CASE DOES NOT PRESENT A JUSTICIABLE CONTROVERSY. 

THE QUESTION OF THE VALIDITY OF THE AWARDS, INVOLVING AS IT DOES A
DISPUTE BETWEEN THE TWO GOVERNMENTS ABOUT THE JURISDICTION AND POWERS
OF THE COMMISSION AND THE INTERPRETATION AND EFFECT OF AN INTERNATIONAL
COMPACT BETWEEN THE UNITED STATES AND GERMANY, IS A POLITICAL MATTER
INVOLVING FOREIGN RELATIONS, IN WHICH UNDER OUR CONSTITUTION, THE
JUDICIAL DEPARTMENT MAY NOT INTERFERE. 

THE PROVISIONS OF THE SETTLEMENT OF WAR CLAIMS ACT OF 1928 ROUTING
AWARDS OF THE COMMISSION THROUGH THE STATE DEPARTMENT FOR CERTIFICATION
TO THE TREASURY, INSTEAD OF HAVING THE AWARDS CERTIFIED BY THE
COMMISSION TO THE TREASURY, IS A LEGISLATIVE RECOGNITION OF THE FACT
THAT THE SUBJECT IS ONE INVOLVING OUR AGREEMENTS AND RELATIONS WITH A
FOREIGN GOVERNMENT, AND GIVES THE SECRETARY OF STATE THE OPPORTUNITY TO
HOLD UP AN AWARD, IF HE BELIEVES THAT IT DID AN INJUSTICE TO GERMANY,
OR FOR ANY OTHER REASON REQUIRES CORRECTION.  THE SECRETARY OF STATE
HAD FULL POWER TO REFRAIN FROM CERTIFYING AN AWARD IF IT SHOULD SEEM
OPEN TO OBJECTION.  FRELINGHUYSEN V. KEY, 110 U.S. 63; BOYNTON V. KEY,
139 U.S. 306; LA ABRA SILVER MINING CO. V. UNITED STATES, 175 U.S.
423. 

THE DECISIONS OF THE COMMISSION, INCLUDING THOSE RESPECTING ITS
POWERS AND JURISDICTION, ARE NOT OPEN TO REVIEW OR COLLATERAL ATTACK IN
THE DOMESTIC COURTS. 

IF THE QUESTION AS TO THE VALIDITY OF THE AWARDS IS CONSIDERED, THEIR
VALIDITY SHOULD BE UPHELD. 

THE RETIREMENT OF THE GERMAN COMMISSIONER DID NOT DEPRIVE THE UMPIRE
AND THE AMERICAN COMMISSIONER OF POWER TO DISPOSE OF THE CASES. 

THE CLAIM THAT THERE WERE GENUINE ISSUES AS TO MATERIAL QUESTIONS OF
FACT, WHICH MADE IT IMPROPER TO GRANT SUMMARY JUDGMENT, IS NOT PROPERLY
RAISED AND IS DEVOID OF MERIT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, Z. & F. ASSETS REALIZATION CORPORATION AND AMERICAN
HAWAIIAN STEAMSHIP COMPANY, ARE HOLDERS OF AWARDS OF THE MIXED CLAIMS
COMMISSION, UNITED STATES AND GERMANY.  THESE AWARDS HAVE BEEN
CERTIFIED BY THE SECRETARY OF STATE AND ARE THUS PAYABLE OUT OF THE
FUND ESTABLISHED BY THE SETTLEMENT OF WAR CLAIMS ACT OF 1928.  FN1
PETITIONERS SEEK A JUDGMENT DECLARING THAT LATER AWARDS PURPORTING TO
BE MADE BY THE MIXED CLAIMS COMMISSION IN FAVOR OF THE LEHIGH VALLEY
RAILROAD COMPANY, THE AGENCY OF CANADIAN CAR AND FOUNDRY COMPANY,
LIMITED, THE BETHLEHEM STEEL COMPANY AND OTHERS, ARE NULL AND VOID, AND
RESTRAINING THE CERTIFICATION OF THESE AWARDS BY THE SECRETARY OF STATE
AND THEIR PAYMENT BY THE SECRETARY OF THE TREASURY.  THE LEHIGH VALLEY
RAILROAD COMPANY INTERVENED AS A DEFENDANT. 

DEFENDANTS, THE SECRETARY OF STATE AND THE SECRETARY OF THE TREASURY,
MOVED TO DISMISS PETITIONERS' BILLS FOR WANT OF JURISDICTION AND FOR
FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED.  THE
INTERVENER DEFENDANT FILED AN ANSWER AND MOVED FOR SUMMARY JUDGMENT. 
THE DISTRICT COURT DISMISSED THE BILLS (31 F.SUPP.  371) AND ITS
JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS.  114 F.2D 464.  WE
GRANTED CERTIORARI, POST, P. 632. 

THE MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY, WAS SET UP
PURSUANT TO AN AGREEMENT OF AUGUST 10, 1922,  FN2  TO DETERMINE THE
AMOUNT TO BE PAID BY GERMANY IN SATISFACTION OF HER FINANCIAL
OBLIGATIONS UNDER THE TREATY OF BERLIN OF AUGUST 25, 1921.  FN3  THE
COMMISSION CONSISTED OF THREE MEMBERS, ONE APPOINTED BY THE UNITED
STATES, ANOTHER BY GERMANY, AND AN UMPIRE SELECTED BY THE TWO
GOVERNMENTS.  THE UMPIRE WAS "TO DECIDE UPON ANY CASES CONCERNING WHICH
THE COMMISSIONERS MAY DISAGREE, OR UPON ANY POINTS OF DIFFERENCE THAT
MAY ARISE IN THE COURSE OF THEIR PROCEEDINGS."  IT WAS FURTHER PROVIDED
THAT SHOULD THE UMPIRE OR ANY OF THE COMMISSIONERS DIE OR RETIRE, OR BE
UNABLE FOR ANY REASON TO DISCHARGE HIS FUNCTIONS, THE VACANCY SHOULD BE
FILLED IN THE SAME MANNER AS THE ORIGINAL APPOINTMENT.  IT WAS AGREED
THAT THE DECISIONS OF THE COMMISSION AND THOSE OF THE UMPIRE SHOULD BE
ACCEPTED AS FINAL AND BINDING UPON THE TWO GOVERNMENTS. 

THE SETTLEMENT OF WAR CLAIMS ACT OF 1928 CREATED IN THE TREASURY A
"GERMAN SPECIAL DEPOSIT ACCOUNT."  SECTION 2 PROVIDED THAT THE
SECRETARY OF STATE SHOULD CERTIFY FROM TIME TO TIME TO THE SECRETARY OF
THE TREASURY THE AWARDS OF THE MIXED CLAIMS COMMISSION, AND THE
SECRETARY OF THE TREASURY WAS DIRECTED TO PAY OUT OF THE AMOUNTS PLACED
IN THE ACCOUNT THE PRINCIPAL OF EACH AWARD SO CERTIFIED, WITH INTEREST
AS STATED. 

THE CLAIMS COVERED BY THE AWARDS ATTACKED BY PETITIONERS AROSE OUT OF
THE DESTRUCTION OF PROPERTY CAUSED BY EXPLOSIONS AT BLACK TOM AND
KINGSLAND, NEW JERSEY, IN 1916 AND 1917.  THESE CLAIMS WERE DISMISSED
BY THE COMMISSION IN 1930, AND PETITIONS FOR REHEARING WERE DENIED IN
1931 AND 1932.  IN THE FOLLOWING YEAR THE AMERICAN AGENT SOUGHT TO
REOPEN THE CASES UPON THE GROUND THAT IN ITS DECISION OF 1930 THE
COMMISSION HAD BEEN MISLED BY "FRAUDULENT, INCOMPLETE, COLLUSIVE AND
FALSE EVIDENCE" ON THE PART OF WITNESSES FOR GERMANY.  THE GERMAN
GOVERNMENT DENIED THE POWER OF THE COMMISSION TO REOPEN AND THE UMPIRE,
MR. JUSTICE ROBERTS, FINDING THAT THERE WAS A DISAGREEMENT UPON THE
QUESTION BETWEEN THE COMMISSIONERS, DECIDED, IN DECEMBER, 1933, THAT
THE COMMISSION WAS COMPETENT TO DETERMINE ITS OWN JURISDICTION BY THE
INTERPRETATION OF THE AGREEMENT CREATING IT.  THE UMPIRE FURTHER
DECIDED THAT, WHILE THE COMMISSION WAS WITHOUT POWER TO REOPEN A CASE
MERELY FOR THE PRESENTATION OF AFTER-DISCOVERED EVIDENCE, THE
COMMISSION WAS STILL SITTING AS A COURT AND DID HAVE POWER TO CONSIDER
THE CHARGE THAT IT HAD BEEN MISLED BY FRAUD AND COLLUSION, AND FOR THAT
PURPOSE TO REOPEN THE CASES IN ORDER THAT IT MIGHT CONSIDER THE FURTHER
EVIDENCE TENDERED BY THE AMERICAN AGENT, AND THAT OFFERED IN REPLY ON
BEHALF OF GERMANY, AND EITHER CONFIRM THE DECISIONS THERETOFORE MADE OR
ALTER THEM AS JUSTICE AND RIGHT MIGHT DEMAND. 

THEREAFTER, THE GERMAN AGENT FILED AN ANSWER DENYING THE ALLEGATIONS
OF FRAUD AND EVIDENCE WAS PRESENTED.  AFTER ARGUMENT, THE COMMISSION,
IN JUNE, 1936, RENDERED A DECISION, THE GERMAN COMMISSIONER CONCURRING,
BY WHICH THE RULING OF 1932 DENYING A REHEARING WAS SET ASIDE, AND THE
QUESTION WHETHER THERE SHOULD BE A REHEARING WAS RESERVED FOR A HEARING
WHICH SHOULD BE SEPARATE AND DISTINCT FROM AN ARGUMENT ON THE MERITS
UNLESS GERMANY SHOULD CONSENT TO A DIFFERENT COURSE. 

EFFORTS TO OBTAIN A SETTLEMENT OF THE CLAIMS WERE UNSUCCESSFUL AND,
AFTER MUCH ADDITIONAL EVIDENCE HAD BEEN INTRODUCED, THE COMMISSION, IN
JANUARY, 1939, HEARD EXTENDED ARGUMENTS BY THE AGENTS OF THE RESPECTIVE
GOVERNMENTS.  THE AMERICAN AGENT HAD REQUESTED THAT THE COMMISSION
SHOULD NOT ONLY SET ASIDE THE ORIGINAL DECISION OF 1930 BUT SHOULD ALSO
PROCEED TO A FINAL DECISION ON THE MERITS, AS IT WAS CONTENDED THAT THE
EVIDENCE PRESENTED TO SUPPORT THE APPLICATION FOR REHEARING ALSO
ESTABLISHED THE RESPONSIBILITY OF GERMANY FOR THE DESTRUCTION OF THE
PROPERTY AS CLAIMED.  IT ALSO APPEARS THAT THE GERMAN COMMISSIONER
INSISTED THAT, BEFORE THE MOTION FOR REHEARING SHOULD BE GRANTED, THE
COMMISSION SHOULD EXAMINE THE PROOFS TENDERED BY THE UNITED STATES TO
DETERMINE WHETHER THE CLAIMS HAD BEEN MADE GOOD.  THIS, AS STATED BY
THE UMPIRE, WAS UPON THE GROUND THAT EVEN THOUGH THE COMMISSION HAD
BEEN MISLED BY FALSE AND FRAUDULENT TESTIMONY, THAT WOULD BE IMMATERIAL
IF, UPON AN INDEPENDENT CONSIDERATION, THE UNITED STATES IN ITS OWN
CASES HAD FAILED TO SUSTAIN ITS BURDEN OF PROOF.  THE AMERICAN
COMMISSIONER AND THE UMPIRE THEREUPON HAD AGREED TO GO BEYOND WHAT THEY
THOUGHT THE NECESSARY FUNCTION OF THE COMMISSION IN THE CIRCUMSTANCES
AND HAD PROCEEDED TO CANVASS WITH THE GERMAN COMMISSIONER THE CASES AS
MADE BY THE UNITED STATES. 

DURING THE COURSE OF THAT INVESTIGATION, ON MARCH 1, 1939, THE GERMAN
COMMISSIONER WITHDREW FROM THE COMMISSION.  AT THE TIME OF HIS
WITHDRAWAL, THE TWO COMMISSIONERS, ACCORDING TO THE CONTENTION OF THE
AMERICAN COMMISSIONER AND AS FOUND BY THE UMPIRE, WERE IN DISAGREEMENT
UPON THE POINTS IN ISSUE.  ON RECEIVING NOTICE OF A MEETING OF THE
COMMISSION TO BE HELD ON JUNE 15, 1939, THE GERMAN AGENT SAID THAT HE
WOULD NOT APPEAR AND THE GERMAN EMBASSY ADVISED THE SECRETARY OF STATE
THAT, SINCE THE WITHDRAWAL OF THE GERMAN COMMISSIONER, THE COMMISSION
WAS INCOMPETENT TO MAKE DECISIONS. 

AT THE MEETING HELD PURSUANT TO THE NOTICE, THE AMERICAN COMMISSIONER
FILED A CERTIFICATE OF DISAGREEMENT WITH AN OPINION SUSTAINING THE
JURISDICTION OF THE COMMISSION.  THE UMPIRE THEREUPON DECIDED THAT
THERE DID EXIST A DISAGREEMENT BETWEEN THE TWO COMMISSIONERS, - A
DISAGREEMENT OF WHICH HE WAS PERSONALLY COGNIZANT AND WHICH WAS ALSO
SHOWN BY THE CERTIFICATE AND OPINION OF THE AMERICAN COMMISSIONER; THAT
THE JURISDICTION OF THE COMMISSION WAS NOT OUSTED BY THE WITHDRAWAL OF
THE GERMAN COMMISSIONER "AFTER SUBMISSION BY THE PARTIES, AND AFTER THE
TRIBUNAL, HAVING TAKEN THE CASES UNDER ADVISEMENT, PURSUANT TO ITS
RULES, WAS ENGAGED IN THE TASK OF DECIDING THE ISSUES PRESENTED"; THAT
THE UNITED STATES "HAD PROVED ITS ALLEGATION THAT FRAUD IN THE EVIDENCE
PRESENTED BY GERMANY MISLED THE COMMISSION AND AFFECTED ITS DECISION IN
FAVOR OF GERMANY"; AND THAT UPON THE RECORD AS IT THEN STOOD THE CASES
FOR THE CLAIMS WERE MADE OUT. 

THEREUPON, THE AMERICAN AGENT MOVED FOR AWARDS IN FAVOR OF THE UNITED
STATES ON BEHALF OF THE SABOTAGE CLAIMANTS.  AN ORDER WAS ENTERED
SETTING ASIDE THE DECISION OF 1930, AND DETERMINING THAT THE LIABILITY
OF GERMANY HAD BEEN ESTABLISHED AND THAT, AS IT APPEARED THAT GERMANY
DID NOT INTEND TO TAKE PART IN FURTHER PROCEEDINGS OF THE COMMISSION,
AWARDS SHOULD BE MADE UPON THE COMMISSION'S FINDINGS AND OPINION. 

ON OCTOBER 3, 1939, THE GERMAN CHARGE D'AFFAIRES ADDRESSED AN
ELABORATE COMMUNICATION TO THE SECRETARY OF STATE MAKING A DETAILED
STATEMENT SUPPLEMENTARY TO A NOTE OF JULY 11, 1939, WITH RESPECT TO THE
ALLEGED ILLEGAL ACTS OF THE UMPIRE, AND PROTESTING AGAINST ALL FURTHER
MEASURES BY THE UMPIRE, THE AMERICAN COMMISSIONER AND THE AMERICAN
AGENT, WHICH WERE AIMED AT SECURING AWARDS IN THE BLACK TOM AND
KINGSLAND CASES.  THE SECRETARY OF STATE REPLIED, ON OCTOBER 18, 1939,
THAT IT WOULD BE HIGHLY INAPPROPRIATE FOR THE DEPARTMENT TO ENDEAVOR TO
DETERMINE THE COURSE OF THE PROCEEDINGS OF THE COMMISSION; THAT THE
SECRETARY HAD ENTIRE CONFIDENCE IN THE ABILITY AND INTEGRITY OF THE
UMPIRE AND THE COMMISSIONER APPOINTED BY THE UNITED STATES DESPITE THE
SEVERE AND, AS HE BELIEVED, "ENTIRELY UNWARRANTED CRITICISMS," AND THAT
HE WAS CONSTRAINED TO INVITE ATTENTION TO THE FACT "THAT THE REMARKABLE
ACTION OF THE COMMISSIONER APPOINTED BY GERMANY WAS APPARENTLY DESIGNED
TO FRUSTRATE OR POSTPONE INDEFINITELY THE WORK OF THE COMMISSION AT A
TIME WHEN, AFTER YEARS OF LABOR ON THE PARTICULAR CASES INVOLVED, IT
WAS EXPECTED THAT ITS FUNCTIONS WOULD BE BROUGHT TO A CONCLUSION." 

NOTICE WAS GIVEN OF A MEETING OF THE COMMISSION TO BE HELD ON OCTOBER
30, 1939, WHICH THE GERMAN COMMISSIONER DID NOT ATTEND, AND AWARDS WERE
THEN MADE IN FAVOR OF THE CLAIMANTS.  THE UMPIRE STATED THAT HE HAD
FOUND THE AWARDS TO BE ACCURATELY AND PROPERLY CALCULATED AND HAD
JOINED THE AMERICAN COMMISSIONER IN SIGNING THEM. 

THE AWARDS WERE CERTIFIED BY THE SECRETARY OF STATE TO THE SECRETARY
OF THE TREASURY ON OCTOBER 31, 1939, PURSUANT TO THE SETTLEMENT OF WAR
CLAIMS ACT OF 1928.  ON THE SAME DAY, THIS SUIT WAS BROUGHT, THE
COMPLAINT BEING FILED BEFORE, AND PROCESS BEING SERVED ON THE SECRETARY
OF STATE AFTER, HIS CERTIFICATION OF THE AWARDS. 

THE COURT OF APPEALS HAS HELD THAT THE QUESTION WITH RESPECT TO THE
VALIDITY OF THE AWARDS IN FAVOR OF THE SABOTAGE CLAIMANTS IS POLITICAL
IN ITS NATURE AND THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION TO
ENTERTAIN IT. 

THERE ARE, HOWEVER, CERTAIN PRELIMINARY QUESTIONS WHICH ARE
INDUBITABLY APPROPRIATE FOR JUDICIAL CONSIDERATION, AND WE THINK THAT
THE PROPER ANSWER TO THESE QUESTIONS IS DETERMINATIVE OF THE WHOLE
CASE. 

THE FIRST QUESTION IS WHETHER PETITIONERS HAVE STANDING TO BRING THIS
SUIT.  EXCEPT FOR THE SITUATION CREATED BY THE SETTLEMENT OF WAR CLAIMS
ACT OF 1928, THEY WOULD HAVE NO SUCH STANDING.  THEY COULD NOT BE HEARD
TO COMPLAIN OF ACTION UPON CLAIMS OTHER THAN THEIR OWN.  AND CONGRESS,
WITH OR WITHOUT AWARDS, COULD PROVIDE FOR THE PAYMENT OF THE CLAIMS IN
QUESTION WITHOUT LET OR HINDRANCE BY PETITIONERS.  BUT PETITIONERS
CONTEND THAT THE SETTLEMENT OF WAR CLAIMS ACT CREATED A FUND IN THE
TREASURY, KNOWN AS THE "GERMAN SPECIAL DEPOSIT ACCOUNT"; THAT
PETITIONERS WITH OTHER EARLIER AWARD-HOLDERS ARE ENTITLED BY THE ACT TO
PAYMENT OUT OF THAT FUND; THAT THE FUND IS INSUFFICIENT TO PAY
PETITIONERS' CLAIMS IN FULL IF PAYMENTS ARE PERMITTED TO BE MADE TO THE
SABOTAGE CLAIMANTS; AND HENCE THAT PETITIONERS HAVE STANDING TO
COMPLAIN OF AN UNLAWFUL DEPLETION OF THE FUND TO THEIR INJURY BY MEANS
OF SUCH PAYMENTS.    WE THINK THAT IN THESE CIRCUMSTANCES AS SHOWN BY
THE BILLS PETITIONERS ARE ENTITLED TO SUE TO PROTECT SUCH INTERESTS AS
THEY MAY HAVE UNDER THE ACT.  COMPARE HOUSTON V. ORMES, 252 U.S. 469;
MELLON V. ORINOCO IRON CO., 266 U.S. 121.  BUT AS THEIR STANDING RESTS
SOLELY UPON THE PROVISIONS OF THE ACT, THEY MAY NOT ESCAPE ITS TERMS OR
SUCCEED IN A CHALLENGE TO PAYMENTS FOR WHICH THE ACT IS FOUND TO
PROVIDE. 

THE NEXT QUESTION IS WITH RESPECT TO THE EFFECT THAT SHOULD BE GIVEN
UNDER THE TERMS OF THE STATUTE TO THE ACTION OF THE SECRETARY OF STATE
IN CERTIFYING THE AWARDS.  CONGRESS HAS AUTHORIZED AND REQUIRED THE
SECRETARY OF THE TREASURY TO PAY OUT OF THE SPECIAL ACCOUNT THE AWARDS
WHICH THE SECRETARY OF STATE HAS CERTIFIED.  THERE IS NO QUESTION THAT
THE SECRETARY OF STATE HAS GIVEN HIS CERTIFICATE IN THIS INSTANCE.  IT
IS ADEQUATE IN FORM AND SUBSTANCE UNDER THE TERMS OF THE ACT. 

PETITIONERS CONTEND THAT THE CERTIFICATION IS A MERE MINISTERIAL
ACT.  IT IS SAID TO MEAN MERELY THAT THE AWARD IS A GENUINE DOCUMENT,
IN THE SAME SENSE THAT A NOTARY PUBLIC AUTHENTICATES THE SIGNATURE OF A
GRANTOR IN A DEED.  WE THINK THAT THIS CONSTRUCTION OF THE ACT IS
INADMISSIBLE.  THE NOTARIAL CONCEPTION OF THE FUNCTION OF THE SECRETARY
OF STATE IN THIS MATTER IGNORES HIS ROLE IN THE CONDUCT OF FOREIGN
AFFAIRS AS THE RIGHT HAND OF THE EXECUTIVE AND IN PARTICULAR HIS
RELATION TO PROCEEDINGS FOR THE DETERMINATION OF CLAIMS OF THE UNITED
STATES AGAINST FOREIGN GOVERNMENTS.  THERE CAN BE NO DOUBT OF THE
CONSTITUTIONAL AUTHORITY OF CONGRESS TO LODGE WITH THE SECRETARY OF
STATE THE AUTHORITY TO CONSIDER AND PASS UPON THE REGULARITY AND
VALIDITY OF THE AWARDS MADE BY THE MIXED CLAIMS COMMISSION FOR THE
STATUTORY PURPOSE OF QUALIFYING THEM FOR PAYMENT OUT OF THE ACCOUNT IN
THE TREASURY.  CONGRESS HAD COMPLETE POWER TO DECIDE WHAT PAYMENTS
SHOULD BE MADE FROM THAT ACCOUNT AND TO ATTACH SUCH CONDITIONS AS IT
SAW FIT.  CONGRESS NOT ONLY HAD THIS POWER BUT IT WAS NATURAL AND
APPROPRIATE THAT CONGRESS SHOULD ENTRUST TO THE SECRETARY OF STATE THE
DECISION OF QUESTIONS THAT MIGHT ARISE WITH RESPECT TO THE PROPRIETY OF
THE PAYMENT OF AWARDS MADE BY THE COMMISSION AND TO REQUIRE HIS
AFFIRMATIVE ACTION THROUGH CERTIFICATION BEFORE PAYMENT.  THE MIXED
CLAIMS COMMISSION HAD BEEN CREATED BY AN EXECUTIVE AGREEMENT.  THE
CLAIMS TO BE CONSIDERED BY THE COMMISSION WERE ONLY THOSE SPONSORED AND
PRESENTED BY THE UNITED STATES AGAINST GERMANY.  THEY WERE PRESENTED AS
CLAIMS OF THE UNITED STATES, THE NATIONAL CLAIMANTS THEMSELVES HAVING
NO STANDING SAVE AS THEY WERE REPRESENTED BY THE UNITED STATES.  SEE
FRELINGHUYSEN V. KEY, 110 U.S. 63, 75, 76; BOYNTON V. BLAINE, 139 U.S.
306, 323, 325; WILLIAMS V. HEARD, 140 U.S. 529, 537, 538.  THE CLAIMS
SO SPONSORED WERE PRESENTED AND HANDLED BY AN AMERICAN AGENT APPOINTED
BY THE PRESIDENT.  IT WAS OBVIOUS, AS THE PRESENT CONTENTIONS
ABUNDANTLY ILLUSTRATE, THAT THE PROCEEDINGS BEFORE SUCH A COMMISSION
MIGHT EASILY GIVE RISE TO QUESTIONS BETWEEN THE GOVERNMENTS CONCERNED
AND MIGHT INVOLVE DIPLOMATIC REPRESENTATIONS OR PROTESTS WITH WHICH IT
WOULD BE THE DUTY OF THE SECRETARY OF STATE TO DEAL.  WHATEVER MIGHT BE
SAID OF SUCH REPRESENTATIONS OR PROTESTS, OR THE OCCASION FOR THEM, OR
WITH RESPECT TO THE EXISTENCE OF ANY INTERNATIONAL RIGHT OR OBLIGATION
ARISING FROM THE AGREEMENT SETTING UP THE COMMISSION, CONGRESS COULD,
AND NATURALLY WOULD, REQUIRE THE VIEWS OF THE SECRETARY OF STATE BEFORE
APPROPRIATING MONEY FOR THE PAYMENT OF AWARDS, AND, IN CREATING A
SPECIAL FUND FOR THAT PURPOSE, WOULD LOOK TO THE SECRETARY OF STATE FOR
THE EXERCISE OF HIS APPROPRIATE AUTHORITY ON BEHALF OF THE EXECUTIVE
AND THUS FOR HIS JUDGMENT UPON THE QUESTION WHETHER THE PROCEEDINGS HAD
BEEN SUCH AS DULY TO QUALIFY THE AWARDS FOR PAYMENT.  SEE FRELINGHUYSEN
V. KEY, SUPRA; BOYNTON V. BLAINE, SUPRA.  WE FIND NOTHING IN THE
SETTLEMENT OF WAR CLAIMS ACT WHICH POINTS TO A DIFFERENT PURPOSE. 

IT IS SUGGESTED THAT THE SECRETARY OF STATE CONSTRUED HIS ACTION IN
CERTIFYING AS MERELY MINISTERIAL BECAUSE HE ACTED AT ONCE ON THE
PRESENTATION OF THE AWARDS.  BUT THE ARGUMENT OVERLOOKS THE FACT THAT
THE SECRETARY OF STATE HAD LONG BEEN COGNIZANT OF THE QUESTIONS THAT
HAD ARISEN IN RELATION TO THE COMMISSION'S AUTHORITY TO GRANT A
REHEARING AND MAKE THE AWARDS.  AS EARLY AS OCTOBER, 1933, THE GERMAN
GOVERNMENT HAD NOTIFIED THE SECRETARY OF STATE THAT IT REGARDED THE
COMMISSION AS WITHOUT AUTHORITY TO GRANT A REHEARING ON THE SABOTAGE
CLAIMS.  THE SECRETARY OF STATE HAD INFORMED THE AMERICAN AGENT THAT
THE QUESTION OF JURISDICTION WAS ONE PROPERLY TO BE DECIDED BY THE
COMMISSION ITSELF AND HE DIRECTED THE AMERICAN AGENT TO BRING THE
MATTER TO THE ATTENTION OF THE AMERICAN COMMISSIONER, OR THE FULL
COMMISSION, FOR THE PURPOSE OF OBTAINING THE DECISION OF THE UMPIRE ON
THAT DISPUTED POINT.  IN MARCH, 1939, THE AMERICAN COMMISSIONER
INFORMED THE SECRETARY OF STATE OF THE WITHDRAWAL OF THE GERMAN
COMMISSIONER AND REVIEWED THE CIRCUMSTANCES.  IN JUNE, 1939,
PETITIONERS THEMSELVES FORMALLY COMMUNICATED TO THE SECRETARY OF STATE
THEIR OBJECTIONS TO THE PROCEEDINGS.  IN THE SAME MONTH THE GERMAN
EMBASSY ADVISED THE SECRETARY OF STATE THAT ITS GOVERNMENT REGARDED THE
COMMISSION AS INCOMPETENT TO MAKE DECISIONS BECAUSE OF THE GERMAN
COMMISSIONER'S WITHDRAWAL.  THIS WAS FOLLOWED BY A FURTHER PROTEST
DELIVERED TO THE SECRETARY OF STATE IN JULY AND A DETAILED STATEMENT BY
THE GERMAN GOVERNMENT OF ITS GROUNDS IN ITS COMMUNICATION OF OCTOBER 3,
1939, TO WHICH THE SECRETARY OF STATE REPLIED ON OCTOBER 18, 1939, IN
THE NOTE FROM WHICH WE HAVE QUOTED.  THUS, WHEN THE ACTUAL AWARDS WERE
PRESENTED THE SECRETARY OF STATE HAD BEFORE HIM THESE DIPLOMATIC
REPRESENTATIONS AND WAS FULLY CONVERSANT WITH ALL THE PROCEEDINGS OF
THE COMMISSION, WITH THE ACTION OF THE GERMAN COMMISSIONER AND THE
ATTITUDE OF HIS GOVERNMENT, AND WITH THE CONTENTIONS OF PETITIONERS. 
WE FIND NO BASIS FOR CONCLUDING THAT THE SECRETARY OF STATE IN
CERTIFYING THE AWARDS DID NOT ACT AFTER DUE DELIBERATION OR FAIL TO
EXPRESS HIS CONSIDERATE JUDGMENT, AS WE THINK THE STATUTE
CONTEMPLATED. 

WE ARE OF THE OPINION THAT FOR THE PURPOSE OF PAYMENT UNDER THE
STATUTE THE CERTIFICATE OF THE SECRETARY OF STATE MUST BE DEEMED TO BE
CONCLUSIVE.  WE DO NOT NEED TO CONSIDER WHETHER CONGRESS COULD COMMIT
TO THE JUDICIARY THE DETERMINATION OF THE VALIDITY OF THE CHALLENGED
CLAIMS (SEE LA ABRA SILVER MINING CO. V. UNITED STATES, 175 U.S. 423),
FOR CONGRESS HAS NOT DONE SO BUT HAS MADE PAYMENT OUT OF THE FUND
DEPEND UPON THE SECRETARY'S CERTIFICATE.  THE QUESTION IN THIS RELATION
IS SIMPLY ONE OF THE INTENT OF CONGRESS AS DISCLOSED BY THE ACT. 
CONGRESS HAS EXPRESSLY DIRECTED PAYMENTS TO BE MADE FROM THE SPECIAL
ACCOUNT OF THE AWARDS "SO CERTIFIED."  THE LITERAL AND NATURAL IMPORT
OF THIS PROVISION IS THAT FINALITY IS TO BE ACCORDED TO THE CERTIFICATE
OF THE SECRETARY OF STATE AND WE PERCEIVE NO GROUND FOR LIMITING THE
TERMS OF THE ACT BY CONSTRUCTION.  ON THE CONTRARY, THE NATURE OF THE
QUESTIONS PRESENTED AND THEIR RELATION TO THE CONDUCT OF FOREIGN
AFFAIRS WITHIN THE PROVINCE OF THE SECRETARY OF STATE SUPPORT THE
CONCLUSION THAT THE STATUTE SHOULD HAVE EFFECT ACCORDING TO ITS
EXPLICIT TERMS. 

IN VIEW OF THE STATUTORY PROVISIONS GOVERNING THIS CASE, WE HAVE NO
OCCASION TO CONSIDER THE CIRCUMSTANCES IN WHICH AN INTERNATIONAL
AGREEMENT, OR ACTION THEREUNDER, MAY BE DEEMED TO VEST RIGHTS IN
PRIVATE PERSONS, OR THE SCOPE OF SUCH RIGHTS IN PARTICULAR CASES.  SEE
COMEGYS V. VASSE, 1 PET. 193; MELLON V. ORINOCO IRON CO., SUPRA.
PETITIONERS MUST CLAIM SOLELY BY VIRTUE OF THEIR INTEREST IN THE FUND
CREATED BY THE STATUTE AND UNDER ITS TERMS THEY ARE NOT ENTITLED TO
COMPLAIN OF PAYMENTS OUT OF THAT FUND OF AWARDS WHICH THE SECRETARY OF
STATE HAS CERTIFIED. 

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. 

FN1  45 STAT. 254. 

FN2  42 STAT. 2200. 

FN3  42 STAT. 1939. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING: 

MR. JUSTICE DOUGLAS AND I CONCUR IN THE JUDGMENT OF AFFIRMANCE BUT ON
THE GROUND THAT THE PETITIONERS SET UP NO JUSTICIABLE CONTROVERSY WHICH
THE COURT HAD POWER TO DETERMINE.  THE QUESTIONS RAISED BY THE
PETITIONS INVOLVE RELATIONS BETWEEN THE UNITED STATES AND GERMANY,
WHICH WE BELIEVE ARE CONSTITUTIONALLY COMMITTED EXCLUSIVELY TO THE
LEGISLATIVE AND EXECUTIVE DEPARTMENTS. 

THE SOLE GROUND UPON WHICH PETITIONERS PRAYED RELIEF IN THE DISTRICT
COURT WAS THAT AWARDS MADE BY THE MIXED CLAIMS COMMISSION WERE "WHOLLY
NULL AND VOID AND WITHOUT JURISDICTION ON THE PART OF THE ALLEGED
COMMISSION."  A DECLARATORY JUDGMENT WAS SOUGHT TO HAVE THE AWARDS
DECLARED NULL AND VOID, AND TO ENJOIN THE SECRETARY OF STATE FROM
CERTIFYING AND THE SECRETARY OF THE TREASURY FROM PAYING SUCH AWARDS
MADE BY THE COMMISSION.  IN ADDITION PETITIONERS ASKED A MANDATORY
INJUNCTION TO REQUIRE THE SECRETARY OF THE TREASURY TO PAY PETITIONERS
WITHOUT REGARD TO OTHER AWARDS OF THE COMMISSION CERTIFIED BY THE
SECRETARY OF STATE. 

THE SECRETARY OF STATE AND THE SECRETARY OF THE TREASURY MOVED TO
DISMISS ON THE GROUNDS, AMONG OTHERS, THAT THE COMPLAINT STATED NO
CAUSE OF ACTION; THE COURT HAD NO JURISDICTION TO REVIEW THE ACTION OF
THE MIXED CLAIMS COMMISSION; THE COURT WAS WITHOUT POWER TO PASS UPON
THE JURISDICTION OF THE MIXED CLAIMS COMMISSION; AND THE COURT HAD NO
JURISDICTION TO RESTRAIN THE SECRETARY OF STATE FROM CERTIFYING AWARDS
OF THE COMMISSION OR TO ENJOIN THE SECRETARY OF THE TREASURY FROM
PAYING THE CLAIMS SO CERTIFIED.  THE DISTRICT COURT DISMISSED AND THE
CIRCUIT COURT OF APPEALS AFFIRMED ON THE GROUND THAT THE ACTIONS OF THE
MIXED CLAIMS COMMISSION IN MAKING AWARDS AND THE SECRETARY OF STATE IN
CERTIFYING THEM WERE COMMITTED FOR DETERMINATION TO THE POLITICAL
DEPARTMENT OF GOVERNMENT AND THEREFORE THE COURTS WERE WITHOUT POWER TO
REVIEW THEIR DETERMINATION.  WE AGREE WITH THEIR CONCLUSION.  AND IN
THIS VIEW WE BELIEVE THE CERTIFICATIONS OF THE SECRETARY OF STATE MUST
BE DEEMED FINAL AND CONCLUSIVE IN THE COURTS, NOT BECAUSE THE CONDUCT
OF THE SECRETARY AND THE COMMISSION PRECEDING CERTIFICATION MEETS
APPROVAL OF THE COURTS, BUT BECAUSE POWER TO MAKE FINAL DETERMINATION
RESTS WITH THE POLITICAL DEPARTMENTS OF GOVERNMENT ALONE. 

THE FUNDAMENTAL QUESTIONS RAISED BY THE PETITIONS AS PRESENTED TO THE
DISTRICT COURT, WERE:  WHO CAN CHALLENGE THE PROPRIETY OF THE
COMMISSION'S AWARDS?  DOES THE JUDICIAL BRANCH OF GOVERNMENT, RATHER
THAN THE POLITICAL, POSSESS THE POWER FINALLY TO DETERMINE THE
PROPRIETY OF THE AWARDS?  AND THE FACT THAT PETITIONERS SOUGHT TO
CHALLENGE THE COMMISSION'S POWER BY PROCEEDINGS AGAINST THE SECRETARIES
OF STATE AND THE TREASURY, AND NOT BY DIRECT SUIT AGAINST THE
COMMISSION, IS IMMATERIAL.  IF PETITIONERS CANNOT DIRECTLY ATTACK THE
COMMISSION IN THE COURTS, NEITHER CAN THEY, IN THE ABSENCE OF
CONGRESSIONAL CONSENT, ASSAIL THE PROPRIETY OF ITS AWARDS THROUGH THE
EXPEDIENT OF SUITS AGAINST OTHERS CHARGED WITH RESPONSIBILITY FOR
EXECUTING THE FINAL DETERMINATION OF THE COMMISSION. 

THE MIXED CLAIMS COMMISSION WAS SET UP PURSUANT TO AN AGREEMENT
BETWEEN THE UNITED STATES AND GERMANY.  THE AGREEMENT GAVE THE
COMMISSION FULL POWER TO HOLD HEARINGS TO DETERMINE "THE AMOUNT TO BE
PAID BY GERMANY IN SATISFACTION OF GERMANY'S FINANCIAL OBLIGATIONS"
UNDER TWO TREATIES PREVIOUSLY MADE BETWEEN THE TWO COUNTRIES.  THE
AGREEMENT FURTHER PROVIDED THAT "THE DECISIONS OF THE COMMISSION AND
THOSE OF THE UMPIRE (IN CASE THERE MAY BE ANY) SHALL BE ACCEPTED AS
FINAL AND BINDING UPON THE TWO GOVERNMENTS."  THE COMMISSION WAS SET UP
WITH AN UMPIRE AND ALL OF THE AWARDS WERE REPORTED TO THE SECRETARY OF
STATE BY THE COMMISSION. 

WHILE PETITIONERS CONTEND THAT THEY HAVE THE RIGHT TO CHALLENGE THE
CERTIFICATION OF THE SECRETARY OF STATE, IT IS TO BE REMEMBERED THAT
THEIR PETITIONS ULTIMATELY REST SOLELY UPON THE PREMISE THAT IT IS HIS
DUTY TO REFUSE TO CARRY OUT THE COMMISSION'S AWARDS BECAUSE OF ALLEGED
IMPROPRIETY OF THE PROCEEDINGS OF THE COMMISSION.  THEY SAY THAT THE
COMMISSION WAS WITHOUT JURISDICTION AND POWER TO MAKE AWARDS TO CERTAIN
CLAIMANTS OTHER THAN THEMSELVES; PAYMENT OF THESE AWARDS OUT OF A FUND
THAT IS LIMITED IN AMOUNT WILL RESULT IN DIMINISHING PAYMENTS TO THEM
BELOW THE FULL AMOUNT OF THEIR AWARD WITH INTEREST; SINCE THE
COMMISSION WAS WITHOUT POWER - AS THEY CHARGE - TO MAKE THESE OTHER
AWARDS, THE SECRETARY OF STATE SHOULD NOT HAVE CERTIFIED THEM FOR
PAYMENT; AND FOR THE SAME REASON THE TREASURY SHOULD NOT PAY THEM. 
THEY ASSERT A RIGHT THROUGH COURT PROCEDURE TO CHALLENGE PAYMENT TO THE
OTHER CLAIMANTS BY REASON OF AN ACT OF CONGRESS OF 1928.  FN1 

BUT THE 1928 ACT PROVIDES THAT THE SECRETARY SHALL FROM TIME TO TIME
CERTIFY TO THE SECRETARY OF THE TREASURY THE AWARDS OF THE MIXED CLAIMS
COMMISSION OF THE UNITED STATES, AND THAT THE SECRETARY OF THE TREASURY
IS AUTHORIZED AND DIRECTED TO PAY "THE PRINCIPAL OF EACH AWARD SO
CERTIFIED, PLUS THE INTEREST THEREON, IN ACCORDANCE WITH THE AWARD,
...  "  NOWHERE IN THE ACT IS THERE ANY LANGUAGE WHICH EITHER EXPRESSLY
OR BY FAIR IMPLICATION INDICATES A PURPOSE OF CONGRESS TO PERMIT SOME
CLAIMANTS TO RESORT TO THE COURTS - AS PETITIONERS HERE HAVE DONE - TO
DETERMINE THE PROPRIETY OF AWARDS BY THE MIXED CLAIMS COMMISSION TO
OTHER CLAIMANTS. 

THE EXACT CHALLENGE MADE BY PETITIONERS AGAINST THE AWARDS OF THE
COMMISSION IS THE SUBJECT OF A DIPLOMATIC CONTROVERSY BETWEEN THE
UNITED STATES AND GERMANY.  GERMANY'S CONTENTION IS THE SAME AS
PETITIONERS'.  AND THE SECRETARY OF STATE, IN CHARGE OF OUR FOREIGN
AFFAIRS, HAS DECLINED TO ACCEDE TO GERMANY'S CONTENTION THAT THE
PARTICULAR AWARDS HERE IN CONTROVERSY WERE IMPROPER AND SHOULD NOT BE
CERTIFIED OR PAID.  THE IMMEDIATE SUBJECT MATTER OF PETITIONERS'
COMPLAINT, UPON WHICH RESTS THE POWER OF THE COURT TO ACT, IF IT HAS
ANY POWER, HAS THEREFORE BEEN REPUDIATED BY THE POLITICAL BRANCH OF OUR
GOVERNMENT.  A CONTRARY CONCLUSION BY THE COURTS WOULD BRING ABOUT A
SQUARE CLASH BETWEEN THE EXECUTIVE AND JUDICIAL BRANCHES OF
GOVERNMENT.  AND FAR MORE THAN THIS.  WHOEVER IS ENTRUSTED FINALLY TO
DETERMINE WHAT GOVERNMENT MUST OR MUST NOT DO IN A DISPUTE BETWEEN
NATIONS IS THE ULTIMATE ARBITER OF MOMENTOUS QUESTIONS OF PUBLIC
POLICIES AFFECTING THIS NATION'S RELATIONS WITH THE OTHER COUNTRIES OF
THE WORLD.    THE CONTROVERSY HERE BEARS ALL THE EARMARKS OF THAT TYPE
OF CONTROVERSIES WHICH OUR CONSTITUTION HAS CONFIDED EXCLUSIVELY TO THE
EXECUTIVE OR POLITICAL DEPARTMENTS OF GOVERNMENT, AND CONCERNING WHICH
THIS COURT HAS MANY TIMES REPEATED "THAT THE ACTION OF THE POLITICAL
BRANCHES OF THE GOVERNMENT IN A MATTER THAT BELONGS TO THEM, IS
CONCLUSIVE."  FN2  SINCE THIS CLEARLY APPEARED FROM THE FACE OF THE
PLEADINGS AT THE VERY OUTSET, THE DISTRICT COURT PROPERLY STAYED ITS
HANDS AND RENOUNCED POWER TO PROCEED. 

FN1  45 STAT. 254. 

FN2  WILLIAMS V. SUFFOLK INSURANCE CO., 13 PET. 415, 420; UNITED
STATES EX REL. BOYNTON V. BLAINE, 139 U.S. 306, 320, 321, 322-6;
FRELINGHUYSEN V. KEY, 110 U.S. 63.  NO GOOD PURPOSE WOULD BE SERVED BY
SETTING OUT THE NUMEROUS DECISIONS OF THIS COURT TO THE SAME EFFECT. 
FOR A COLLECTION OF SUCH CASES SEE DIGEST OF THE U.S. SUPREME COURT
REPORTS, VOL. 4, COURTS, SECS. 49-63. 
..END :




JACKSON V. IRVING TRUST CO., 311 U.S. 494 


NO. 75.  ARGUED DECEMBER 19, 1940.  - DECIDED JANUARY 6, 1941.  - 109
F.2D 714, AFFIRMED. 


1.  AN AWARD OF A DISTRICT COURT UNDER THE TRADING WITH THE ENEMY ACT
CAN NOT BE ATTACKED FOR ALLEGED FRAUDULENT COLLUSION BY A MOTION ON
AFFIDAVITS MADE TO THAT COURT AFTER PAYMENT HAS BEEN MADE AND THE TIME
FOR APPEAL HAS EXPIRED.  SEMBLE THAT THE REMEDY WOULD BE BY BILL OF
REVIEW.  P. 499. 

2.  YEARS AFTER THE RENDITION AND PAYMENT OF AN AWARD UNDER SEC. 9(A)
OF THE TRADING WITH THE ENEMY ACT, FROM WHICH NO APPEAL WAS TAKEN, THE
ATTORNEY GENERAL, ON BEHALF OF THE UNITED STATES AND AS SUCCESSOR TO
THE ALIEN PROPERTY CUSTODIAN, BY A MOTION TO THE DISTRICT COURT
SUPPORTED BY AFFIDAVITS, SOUGHT TO HAVE THE JUDGMENT SET ASIDE FOR WANT
OF JURISDICTION, ON THE GROUND THAT THE BENEFICIAL OWNER OF THE CLAIM
WAS AN "ENEMY" AS DEFINED BY THAT ACT AND THAT, THEREFORE, THE SUIT WAS
NOT AUTHORIZED BY THE ACT, BUT WAS A SUIT AGAINST THE UNITED STATES
WITHOUT ITS CONSENT.  HELD: 

(1)  THAT THE COMPLAINT IN THE SUIT STATED A CASE WITHIN THE TERMS OF
THE ACT, AND THE DISTRICT COURT HAD JURISDICTION TO DETERMINE EVERY
ISSUE NECESSARY TO THE ESTABLISHMENT OF THE CLAIM.  P. 500. 

(2)  THAT THE STATUS, ENEMY OR NON-ENEMY, OF THE ALLEGED BENEFICIAL
OWNER, UPON WHICH WAS BASED THE "JURISDICTIONAL" QUESTION OF THE
MOTION, HAVING BEEN AN ISSUE RAISED BY THE PLEADINGS AND PROCEEDINGS IN
THE CASE, WAS DETERMINABLE BY THE DISTRICT COURT, HOWEVER LABELED.  P.
502. 

(3)  WHETHER THE PARTICULAR ISSUE WAS ACTUALLY LITIGATED IS
IMMATERIAL IN VIEW OF THE NECESSARY CONCLUSION THAT THERE WAS FULL
OPPORTUNITY TO LITIGATE IT AND THAT IT WAS ADJUDICATED BY THE DECREE. 
P. 503. 

(4)  IF THE DISTRICT COURT HAD ERRED IN DEALING OR IN FAILING TO DEAL
WITH ANY ISSUE INVOLVED, THE REMEDY WAS BY APPEAL.  P. 503. 

JACKSON, ATTORNEY GENERAL, ON BEHALF OF THE UNITED STATES, AND AS
SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, V. IRVING TRUST CO.,
EXECUTOR, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 310 U.S. 621, TO REVIEW THE REVERSAL OF A DECREE OF THE
DISTRICT COURT, 27 F.SUPP.  44, SETTING ASIDE, ON MOTION, FOR WANT OF
JURISDICTION, A FORMER DECREE WHICH HAD BEEN RENDERED UNDER SEC. 9(A)
OF THE TRADING WITH THE ENEMY ACT. 

ASSISTANT ATTORNEY GENERAL SHEA, WITH WHOM SOLICITOR GENERAL BIDDLE
AND MESSRS.  FRANCIS J. MCNAMARA, MELVIN H. SIEGEL, AND RICHARD H.
DEMUTH WERE ON THE BRIEF, FOR PETITIONER. 

A SUIT UNDER SEC. 9(A) OF THE TRADING WITH THE ENEMY ACT IS A SUIT
AGAINST THE UNITED STATES; THE DISTRICT COURT HAS JURISDICTION OVER IT
ONLY TO THE EXTENT TO WHICH THE UNITED STATES HAS CONSENTED TO BE
SUED.  ONE OF THE CONDITIONS IMPOSED BY THIS ACT IS THAT THE SUIT SHALL
BE BROUGHT BY ONE WHO IS NOT AN "ENEMY."  THIS CONDITION WAS PLAINLY
NOT MET. 

AT THE TIME WHEN THE SUIT WAS COMMENCED, ALL THE ASSETS OF THE
PARTNERSHIP OF CROSSMAN & SIELCKEN, INCLUDING THE CLAIM SUED ON, HAD
PASSED, PURSUANT TO THE PARTNERSHIP AGREEMENT, TO THE ESTATE OF
SIELCKEN, AND NEITHER SORENSON NOR NIELSEN HAD ANY PERSONAL INTEREST IN
THE RECOVERY.  IT IS CLEAR, THEREFORE, THAT THE SUIT WAS BROUGHT ON
BEHALF OF SIELCKEN'S ESTATE.  AT THE TIME OF HIS DEATH, SIELCKEN WAS AN
"ENEMY."  THE STATUS OF THE ESTATE WAS THAT OF AN ENEMY.  THE ESTATE
OWNED THE DEBT CLAIM AND WAS THE SOLE PARTY INTERESTED IN THE
RECOVERY.  IT IS, THEREFORE, PERFECTLY APPARENT THAT THE SUIT AGAINST
THE CUSTODIAN ON THE CLAIM WAS NOT ONE AUTHORIZED BY SEC. 9(A). 

SINCE THE DISTRICT COURT HAD NO POWER IN THE CASE, ITS JUDGMENT WAS
VOID AND WAS PROPERLY VACATED ON THE PRESENT MOTION.  UNITED STATES V.
U.S. FIDELITY & GUARANTY CO., 309 U.S. 506. 

THE OPPOSITE CONCLUSION REACHED BY THE COURT BELOW WAS BASED ON THE
PREMISE THAT THE JURISDICTIONAL ISSUE WAS ADJUDICATED IN THE ORIGINAL
ACTION AND THAT THEREFORE THE JUDGMENT ENTERED WAS BEYOND ATTACK, EVEN
THOUGH THE COURT WHICH ENTERED IT WAS ENTIRELY WITHOUT JURISDICTION. 
THIS CONCLUSION WAS THOUGHT TO BE REQUIRED BY THE DECISION IN STOLL V.
GOTTLIEB, 305 U.S. 165.  THE COURT BELOW FURTHER HELD THAT THE 1929
JUDGMENT WAS BEYOND ATTACK EVEN IF THE JURISDICTIONAL ISSUE WAS NOT
ADJUDICATED IN THE ORIGINAL ACTION.  THIS RULING WAS THOUGHT TO BE
REQUIRED BY THE DECISION IN CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER
STATE BANK, 308 U.S. 371.  THIS COURT HAS SINCE HELD THAT A JUDGMENT
RENDERED AGAINST THE UNITED STATES WITHOUT ITS CONSENT IS "VOID" AND
THAT SUCH A JUDGMENT IS NOT RES JUDICATA OF THE JURISDICTION OF THE
COURT IN WHICH IT WAS RENDERED, AT LEAST WHERE THE JURISDICTIONAL ISSUE
WAS NOT ADJUDICATED IN THE ORIGINAL SUIT.  UNITED STATES V. U.S.
FIDELITY & GUARANTY CO., SUPRA.  IT IS THE GOVERNMENT'S POSITION THAT
THE PRESENT CASE FALLS DIRECTLY WITHIN THE RULE OF THE FIDELITY &
GUARANTY CO. CASE. 

THE DOCTRINE OF RES JUDICATA MAY BE SUBJECT TO OTHER AND COMPETING
POLICIES.  HERE THE PRIVATE INTEREST IN THE FINALITY OF LITIGATION
MUST, WE BELIEVE, YIELD TO THE PUBLIC POLICY WHICH FORBIDS SUITS
AGAINST THE UNITED STATES WITHOUT ITS CONSENT, A POLICY PECULIARLY
STRONG IN THE CASE OF THIS STATUTE. 

MOREOVER, A MOTION TO VACATE IS NOT A COLLATERAL ATTACK BUT A METHOD
OF DIRECT REVIEW TO WHICH THE DOCTRINE OF RES JUDICATA IS NOT
APPLICABLE.  THE DECREE UNDER REVIEW WAS SIMPLY AN EXERCISE BY THE
DISTRICT COURT OF ITS PLENARY POWER TO VACATE ITS OWN JUDGMENTS AT ANY
TIME FOR WANT OF JURISDICTION. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

IN A SUIT BROUGHT IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK UNDER SEC. 9(A) OF THE TRADING WITH THE
ENEMY ACT,  FN1  A DECREE WAS ENTERED ON DECEMBER 30, 1929, DIRECTING
PAYMENT TO THE PLAINTIFFS OF A STATED AMOUNT OUT OF THE PROPERTY OF A
GERMAN CORPORATION WHICH HAD BEEN SEIZED BY THE ALIEN PROPERTY
CUSTODIAN.  THERE WAS NO APPEAL AND THE AMOUNT AWARDED WAS PAID. 

IN 1938 THE UNITED STATES MOVED UPON AFFIDAVITS TO SET ASIDE THE
DECREE, CONTENDING THAT THE COURT HAD BEEN WITHOUT JURISDICTION.  THE
DISTRICT COURT GRANTED THE MOTION UPON THAT GROUND.  27 F.SUPP.  44. 
THE CIRCUIT COURT OF APPEALS REVERSED AND REINSTATED THE ORIGINAL
DECREE.  109 F.2D 714.  CERTIORARI WAS GRANTED.  310 U.S. 621. 

IT APPEARS THAT THE SUIT HAD BEEN BROUGHT IN 1927 BY JOHN S. SORENSON
AND THORLIEF S. B. NIELSEN, AS SURVIVING PARTNERS OF THE FIRM OF
CROSSMAN & SIELCKEN.  THE BILL OF COMPLAINT ALLEGED THAT PLAINTIFFS AND
HERMANN SIELCKEN, THE DECEASED PARTNER, WERE CITIZENS AND RESIDENTS OF
THE UNITED STATES; THAT THE PARTNERSHIP HAD ITS PRINCIPAL PLACE OF
BUSINESS IN NEW YORK CITY AND HAD NOT AT ANY TIME BEEN A "RESIDENT" IN
ENEMY TERRITORY AND HAD NOT BEEN AN ENEMY OR ALLY OF ENEMY WITHIN THE
MEANING OF THE TRADING WITH THE ENEMY ACT; THAT ZENTRAL-EINKAUFS
GESELLSCHAFT, M.B.H., A GERMAN CORPORATION DESCRIBED AS Z.E.G., WAS
INDEBTED TO CROSSMAN & SIELCKEN FOR CARGOES PURCHASED BY THE LATTER FOR
Z.E.G. DURING 1915 AND CONSIGNED TO NEUTRAL PORTS WHERE THEY HAD BEEN
SEIZED AND CONDEMNED BY THE BRITISH GOVERNMENT; AND THAT THE ALIEN
PROPERTY CUSTODIAN HAD ASSETS OF Z.E.G. WHICH HAD BEEN SEIZED UNDER THE
TRADING WITH THE ENEMY ACT.  THE BILL PRAYED FOR A DECREE ESTABLISHING
THE DEBT CLAIMED BY THE PLAINTIFFS AND ORDERING ITS PAYMENT TO THEM OUT
OF THE PROPERTY SO HELD.  THE BILL DECLARED THAT IT WAS FILED PURSUANT
TO SEC. 9(A) OF THE TRADING WITH THE ENEMY ACT AND THAT THE COURT HAD
JURISDICTION TO ENTERTAIN IT BY VIRTUE OF THE EXPRESS TERMS OF THAT
PROVISION. 

THE DEFENDANTS, THE ALIEN PROPERTY CUSTODIAN AND THE TREASURER OF THE
UNITED STATES APPEARED GENERALLY.  THEY MOVED TO DISMISS THE BILL ON
THE GROUNDS (1) THAT IT APPEARED AFFIRMATIVELY THEREFROM THAT NO DEBT
WAS OWING TO THE PLAINTIFFS FROM ANY ENEMY WHOSE PROPERTY HAD BEEN
SEIZED AND WAS THEN HELD, (2) THAT IT APPEARED AFFIRMATIVELY THAT NO
DEBT WAS OWING TO THE PLAINTIFFS BY Z.E.G., AND (3) THAT THE PLAINTIFFS
HAD NOT STATED FACTS SUFFICIENT TO ENTITLE THEM TO EQUITABLE RELIEF
UNDER THE PROVISIONS OF THE ACT.  THE DEFENDANTS ALSO ANSWERED DENYING
KNOWLEDGE AS TO THE AVERMENTS OF THE BILL WHICH SET FORTH THE
CITIZENSHIP AND RESIDENCE OF THE PLAINTIFFS AND SIELCKEN AND THE LOCUS
OF THE PARTNERSHIP, AND THOSE CONCERNING THE TRANSACTIONS SAID TO HAVE
GIVEN RISE TO THE DEBT.  AS AN AFFIRMATIVE DEFENSE, IT WAS ALLEGED THAT
THERE WERE PRIOR CLAIMS TO THE SEIZED PROPERTY OF Z.E.G. THE LATTER
BEING JOINED AS DEFENDANT ALSO ANSWERED PUTTING IN ISSUE ALLEGATIONS
RELATING TO THE CLAIM AND SETTING UP VARIOUS AFFIRMATIVE DEFENSES.  ONE
OF THESE ASSERTED THAT PLAINTIFFS DID NOT HAVE TITLE TO THE CAUSE OF
ACTION, SINCE THE ALIEN PROPERTY CUSTODIAN WAS ALLEGED TO HAVE SEIZED
THE ASSETS OF CROSSMAN & SIELCKEN AS AN ENEMY FIRM BECAUSE SIELCKEN
RESIDED IN GERMANY AND BECAME AN ENEMY.  OTHER DEFENSES OF Z.E.G.
AVERRED THAT THE PARTNERSHIP OF CROSSMAN & SIELCKEN HAD BEEN DISSOLVED
THROUGH THE OUTBREAK OF THE WAR, AND THAT THE CLAIM THEREUPON HAD
PASSED TO SIELCKEN AND UPON HIS DEATH TO HIS GERMAN EXECUTORS WHO HAD
ENTERED INTO AN ARBITRATION AGREEMENT WITH Z.E.G., AND THAT THE
ARBITRATORS HAD FOUND NO LIABILITY ON ITS PART. 

ON THE TRIAL, AT THE CLOSE OF THE EVIDENCE ON BOTH SIDES, DEFENDANTS
MOVED TO DISMISS UPON THE GROUND THAT PLAINTIFFS HAD FAILED TO PROVE
THEIR CASE.  THE DISTRICT COURT DENIED THE MOTIONS AND HELD THAT THE
PARTNERSHIP HAD NOT BEEN DISSOLVED BY THE OUTBREAK OF THE WAR AND THAT
Z.E.G. WAS INDEBTED AS CLAIMED; THAT THE EXECUTORS OF SIELCKEN IN
GERMANY HAD NO AUTHORITY TO DISPOSE OF A PARTNERSHIP ASSET WHICH HAD
COME INTO EXISTENCE LONG PRIOR TO OUR ENTERING THE WAR; AND THAT
PLAINTIFFS WERE ENTITLED TO A DECREE FOR THE RELIEF PRAYED FOR.  DECREE
WAS ENTERED ACCORDINGLY. 

WHILE THE PRESENT MOTION TO VACATE THE DECREE WAS UPON THE SOLE
GROUND THAT THE COURT HAD NO JURISDICTION TO ENTER IT, THERE WAS SOME
ATTEMPT IN THE AFFIDAVITS ON THE MOTION TO SHOW THAT THE DECREE WAS
COLLUSIVE.  BUT, AS THE CIRCUIT COURT OF APPEALS OBSERVED, THERE WAS NO
BILL OF REVIEW PRESENTING SUCH A QUESTION AND NO JUSTIFICATION FOR
SETTING ASIDE A DECREE UPON THAT GROUND MERELY UPON AFFIDAVITS.  THE
GOVERNMENT EXPRESSLY DISCLAIMS ANY CHALLENGE TO THAT RULING.  AS TO THE
QUESTION OF JURISDICTION, THE CIRCUIT COURT OF APPEALS HELD THAT THE
DISTRICT COURT UPON THE TRIAL OF THE SUIT WAS OBLIGED TO RESOLVE
DISPUTED QUESTIONS OF FACT AND THAT ITS DECISION THAT THE
JURISDICTIONAL FACTS WERE ESTABLISHED COULD NOT BE ATTACKED
COLLATERALLY.  STOLL V. GOTTLIEB, 305 U.S. 165; CHICOT COUNTY DRAINAGE
DISTRICT V. BAXTER STATE BANK, 308 U.S. 371. 

PETITIONER THUS STATES THE QUESTION UPON WHICH REVIEW IS ASKED IN
THIS COURT:  "WHETHER AN UNAPPEALED JUDGMENT AGAINST THE ALIEN PROPERTY
CUSTODIAN UNDER SECTION 9(A) OF THE TRADING WITH THE ENEMY ACT, ON A
CLAIM TO RECOVER FOR A DEBT, MAY BE SET ASIDE FOR WANT OF JURISDICTION
ON THE GROUND THAT THE BENEFICIAL OWNER OF THE CLAIM SUED ON WAS AN
'ENEMY,' AS DEFINED BY THAT ACT." 

PETITIONER ARGUES THAT THE JUDGMENT WAS VOID SINCE IT WAS NOT
AUTHORIZED BY THE TRADING WITH THE ENEMY ACT AND THUS THE SUIT WAS A
SUIT AGAINST THE UNITED STATES TO WHICH THE UNITED STATES HAD NOT
CONSENTED AND OVER WHICH, THEREFORE, THE DISTRICT COURT HAD NO
JURISDICTION. 

WE HOLD THE ARGUMENT UNTENABLE.  THERE IS NO QUESTION HERE OF THE
SORT PRESENTED IN UNITED STATES V. UNITED STATES FIDELITY & GUARANTY
CO., 309 U.S. 506, OF WANT OF CONSENT TO BE SUED OR OF AN ATTEMPT ON
THE PART OF OFFICIALS TO WAIVE THE SOVEREIGN IMMUNITY.  THE UNITED
STATES HAD EXPRESSLY CONSENTED IN SEC. 9(A) OF THE TRADING WITH THE
ENEMY ACT THAT SUITS MIGHT BE BROUGHT BY A NON-ENEMY CLAIMANT TO HAVE
HIS CLAIM AGAINST AN ENEMY DEBTOR SATISFIED OUT OF THE LATTER'S
PROPERTY HELD BY THE ALIEN PROPERTY CUSTODIAN.  THE PERTINENT PARTS OF
THE SECTION ARE SET FORTH IN THE MARGIN.  FN2 

THE STATUTE PROVIDES THAT ANY PERSON NOT AN ENEMY OR ALLY OF ENEMY
FN3  "CLAIMING" ANY INTEREST OR RIGHT IN THE PROPERTY SEIZED OR TO WHOM
ANY DEBT MAY BE OWING BY THE ALIEN ENEMY MAY SUE THE CUSTODIAN AND
TREASURER.  HE MAY SUE "TO ESTABLISH THE INTEREST, RIGHT, TITLE, OR
DEBT SO CLAIMED."  THE COURT IS TO DETERMINE WHETHER HIS CLAIM IS
ESTABLISHED.  IF THE CLAIM IS "SO ESTABLISHED," THE COURT IS TO ORDER
THE DELIVERY OF PROPERTY OR PAYMENT "TO WHICH THE COURT SHALL DETERMINE
SAID CLAIMANT IS ENTITLED."  NOTHING COULD BE CLEARER THAN THAT IN A
SUIT SO BROUGHT THE COURT IS TO DETERMINE EVERY ISSUE NECESSARY TO THE
ESTABLISHMENT OF THE CLAIM. 

THE SUIT IN QUESTION WAS PRECISELY WITHIN THE TERMS OF THE ACT.  IT
WAS A SUIT BY PLAINTIFFS SORENSON AND NIELSEN AS SURVIVING PARTNERS, IN
WHICH THEY ALLEGED THEIR CITIZENSHIP AND RESIDENCE IN THE UNITED STATES
(AND THIS DOES NOT NOW APPEAR TO BE QUESTIONED), TO RECOVER A DEBT
CLAIMED TO BE OWING TO THE FIRM BY AN ENEMY CORPORATION.  THE
ALLEGATIONS OF THE BILL OF COMPLAINT MET THE REQUIREMENTS OF THE
STATUTE IN EVERY RESPECT.  IT SET FORTH THE PLAINTIFFS' CLAIM, THEIR
NON-ENEMY STATUS, THE TRANSACTIONS OUT OF WHICH THEIR CLAIM AROSE, AND
THAT THEY HAD GIVEN NOTICE OF THE CLAIM AS THE STATUTE REQUIRED.  THE
DENIALS OF THE ANSWERS AND THE AFFIRMATIVE DEFENSES PRESENTED ISSUES
WHICH THE COURT WAS COMPETENT TO TRY.  ALL THESE ISSUES WERE
NECESSARILY BEFORE THE COURT IN THE PERFORMANCE OF ITS STATUTORY DUTY
TO DETERMINE WHETHER THE PLAINTIFFS HAD ESTABLISHED THEIR CLAIM TO THE
DEBT.  THUS, THE STATUS OF THE PLAINTIFFS, OF THE PARTNERSHIP, AND OF
SIELCKEN, THE DECEASED PARTNER, THE EFFECT OF HIS DEATH, HIS INTEREST
IN THE ASSETS UNDER THE PARTNERSHIP AGREEMENT, THE NATURE OF THE
TRANSACTIONS WITH Z.E.G., WHETHER IT WAS INDEBTED TO THE FIRM AND
WHETHER THE SURVIVING PARTNERS WERE ENTITLED TO RECOVER THE DEBT, THAT
IS, EVERY ISSUE WHICH COULD BE LITIGATED IN THE SUIT WAS BY THE VERY
TERMS OF THE ACT SUBMITTED TO THE DETERMINATION OF THE COURT. 

PETITIONER SAYS THAT THE JURISDICTIONAL POINT WAS NOT CONTESTED OR
ADJUDICATED AT THE TRIAL.  THAT, WHILE THE DEFENDANTS CLAIMED THAT
SIELCKEN WAS A RESIDENT OF GERMANY AT THE TIME OF THE WAR, THAT HE
OWNED ALL THE CAPITAL OF THE PARTNERSHIP, AND THAT UPON HIS DEATH IT
WAS THE DUTY OF THE SURVIVING PARTNERS TO PAY OVER TO HIS EXECUTOR THE
CAPITAL, PROPERTY AND BUSINESS OF THE FIRM, IT WAS NOT SUGGESTED THAT
THESE FACTS RAISED THE JURISDICTIONAL ISSUE.  PETITIONER URGES THAT THE
DISTRICT JUDGE HELD THAT WHILE SIELCKEN MAY HAVE BEEN AN 'ENEMY' AS
DEFINED IN THE ACT, 'HE DID NOT BECOME AN ENEMY WITHIN THE MEANING OF
THE DISSOLUTION DOCTRINE, AT LEAST SO FAR AS TRANSACTIONS OCCURRING
PRIOR TO THE WAR WERE CONCERNED.'  AND TO SUPPORT THE ARGUMENT,
PETITIONER RELIES UPON A COLLOQUY BETWEEN THE DISTRICT JUDGE AND
COUNSEL IN THE COURSE OF THE TRIAL.  RESPONDENT REJOINS THAT IN THE
SAME COLLOQUY THE DISTRICT JUDGE OBSERVED THAT 'THE PARTNERSHIP
AGREEMENT WAS BETWEEN AMERICAN CITIZENS' AND THAT IT DID NOT FOLLOW
FROM THE WAR AND THE PROVISIONS OF THE TRADING WITH THE ENEMY ACT THAT
SIELCKEN WAS 'AN ALIEN ENEMY IN THE SENSE THAT A NATIONAL OF THE
COUNTRY WITH WHICH WE ARE AT WAR IS AN ALIEN ENEMY.'  AND THE DISTRICT
JUDGE FURTHER OBSERVED THAT THE STATUS OF THE PROPERTY IN QUESTION 'HAD
BECOME FIXED PRIOR TO THE WAR' AND THAT IT WAS NOT A CONSEQUENCE OF THE
WAR THAT THE PARTNERSHIP WAS SO FAR DISSOLVED 'AS TO CHANGE THE RIGHTS
WITH RESPECT TO THAT PROPERTY.'  FROM ANY POINT OF VIEW, THE COLLOQUY
AFFORDS NO ADEQUATE BASIS FOR PETITIONER'S CONTENTION.  WE AGREE WITH
THE CIRCUIT COURT OF APPEALS THAT WHEN THE DISMISSAL OF THE SUIT WAS
ASKED BY COUNSEL FOR THE GOVERNMENT ON THE GROUND THAT SIELCKEN WAS AN
ENEMY UNDER THE ACT, THE ISSUES THUS RAISED WERE THE SAME AS THOSE
WHICH PERTAINED TO THE SOCALLED 'JURISDICTIONAL' QUESTION OF RIGHT TO
SUE UNDER THE TRADING WITH THE ENEMY ACT.   BY THE PROVISIONS OF THAT
ACT THE JURISDICTION OF THE DISTRICT COURT ATTACHED WHEN THE SUIT WAS
BROUGHT UPON THE CLAIM WHICH THE PLAINTIFFS AS NON-ENEMY CLAIMANTS SET
FORTH.  HOWEVER THE ISSUES WERE LABELED THE COURT WAS AUTHORIZED TO
DETERMINE THEM.  TEXAS & PACIFIC RY. CO. V. GULF, C. & S.F. RY. CO.,
270 U.S. 266, 274; STOLL V. GOTTLIEB, SUPRA, P. 171.  AND WHETHER A
PARTICULAR ISSUE WAS ACTUALLY LITIGATED IS IMMATERIAL IN VIEW OF THE
NECESSARY CONCLUSION THAT THERE WAS FULL OPPORTUNITY TO LITIGATE IT AND
THAT IT WAS ADJUDICATED BY THE DECREE.  CROMWELL V. COUNTY OF SAC, 94
U.S. 351, 352; GRUBB V. PUBLIC UTILITIES COMMISSION, 281 U.S. 470, 479;
CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER STATE BANK, SUPRA; SUNSHINE
ANTHRACITE COAL CO. V. ADKINS, 310 U.S. 381, 403.  IF THE DISTRICT
COURT HAD ERRED IN DEALING, OR IN FAILING TO DEAL, WITH ANY ISSUE THUS
INVOLVED, THE REMEDY WAS BY APPEAL AND NO APPEAL WAS TAKEN. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  40 STAT. 411, 419, AS AMENDED, 42 STAT. 1511. 

FN2  "SEC.  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, OR TO WHOM ANY DEBT MAY BE OWING
FROM AN ENEMY OR ALLY OF ENEMY WHOSE PROPERTY OR ANY PART THEREOF SHALL
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,
CONVEYANCE, TRANSFER, ASSIGNMENT, OR DELIVERY TO SAID CLAIMANT OF THE
MONEY OR OTHER PROPERTY SO HELD BY THE ALIEN PROPERTY CUSTODIAN OR BY
THE TREASURER OF THE UNITED STATES, OR OF THE INTEREST THEREIN TO WHICH
THE PRESIDENT SHALL DETERMINE SAID CLAIMANT IS ENTITLED:  PROVIDED,
THAT NO SUCH ORDER BY THE PRESIDENT SHALL BAR ANY PERSON FROM THE
PROSECUTION OF ANY SUIT AT LAW OR IN EQUITY AGAINST THE CLAIMANT TO
ESTABLISH ANY RIGHT, TITLE, OR INTEREST WHICH HE MAY HAVE IN SUCH MONEY
OR OTHER PROPERTY.  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, OR,
IF A CORPORATION, WHERE IT HAS ITS PRINCIPAL PLACE OF BUSINESS (TO
WHICH SUIT THE ALIEN PROPERTY CUSTODIAN OR THE TREASURER OF THE UNITED
STATES, AS THE CASE MAY BE, SHALL BE MADE A PARTY DEFENDANT), TO
ESTABLISH THE INTEREST, RIGHT, TITLE, OR DEBT SO CLAIMED, AND IF SO
ESTABLISHED THE COURT SHALL ORDER THE PAYMENT, CONVEYANCE, TRANSFER,
ASSIGNMENT, OR DELIVERY TO SAID CLAIMANT OF THE MONEY OR OTHER PROPERTY
SO HELD BY THE ALIEN PROPERTY CUSTODIAN OR BY THE TREASURER OF THE
UNITED STATES OR THE INTEREST THEREIN TO WHICH THE COURT SHALL
DETERMINE SAID CLAIMANT IS ENTITLED.  ...  " 

FN3  SECTION 2 OF THE TRADING WITH THE ENEMY ACT PROVIDES: 

"SEC. 2.  THE WORD 'ENEMY,' AS USED HEREIN, SHALL BE DEEMED TO MEAN,
FOR THE PURPOSES OF SUCH TRADING AND OF THIS ACT - 

"(A)  ANY INDIVIDUAL, PARTNERSHIP, OR OTHER BODY OF INDIVIDUALS, OF
ANY NATIONALITY, RESIDENT WITHIN THE TERRITORY (INCLUDING THAT OCCUPIED
BY THE MILITARY AND NAVAL FORCES) OF ANY NATION WITH WHICH THE UNITED
STATES IS AT WAR, OR RESIDENT OUTSIDE THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY, AND ANY CORPORATION INCORPORATED WITHIN
SUCH TERRITORY OF ANY NATION WITH WHICH THE UNITED STATES IS AT WAR OR
INCORPORATED WITHIN ANY COUNTRY OTHER THAN THE UNITED STATES AND DOING
BUSINESS WITHIN SUCH TERRITORY." 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :

















HELVERING V. HAMMEL, 311 U.S. 504 


NO. 49.  ARGUED DECEMBER 11, 1940.  - DECIDED JANUARY 6, 1941.  - 108
F.2D 753, REVERSED. 


1.  A LOSS SUSTAINED BY AN INDIVIDUAL TAXPAYER UPON THE FORECLOSURE
SALE OF AN INTEREST IN REAL ESTATE WHICH HE HAD ACQUIRED FOR PROFIT,
HELD, IN COMPUTING TAXABLE INCOME UNDER THE REVENUE ACT OF 1934,
DEDUCTIBLE ONLY TO THE LIMITED EXTENT ALLOWED BY SECS. 23(J) AND 117(D)
FOR LOSSES FROM "SALES" OR EXCHANGES OF CAPITAL ASSETS, AND NOT IN FULL
UNDER SEC. 23(E)(2).  PP. 505, 510. 

2.  THE LANGUAGE, THE PURPOSE, AND THE LEGISLATIVE HISTORY OF THE
PROVISIONS OF THE REVENUE ACT OF 1934 RELATING TO CAPITAL GAINS AND
LOSSES SUPPORT THE VIEW THAT NO DISTINCTION WAS INTENDED BETWEEN LOSSES
FROM FORCED SALES AND LOSSES FROM VOLUNTARY SALES OF CAPITAL ASSETS. 
P. 510. 

3.  COURTS ARE NOT FREE TO REJECT THE LITERAL OR USUAL MEANING OF THE
WORDS OF A STATUTE, WHEN ADOPTION OF THAT MEANING WILL NOT LEAD TO
ABSURD RESULTS NOR THWART THE OBVIOUS PURPOSE OF THE STATUTE.  P. 510. 

4.  IN THIS CASE, THE FORECLOSURE SALE, AND NOT THE DECREE OF
FORECLOSURE, WAS THE DEFINITIVE EVENT WHICH ESTABLISHED THE LOSS WITHIN
THE MEANING AND FOR THE PURPOSE OF THE REVENUE ACT.  P. 512. 

5.  THE VIEW THAT THE LOSS IN THIS CASE MAY NOT BE TREATED AS A LOSS
FROM A SALE BECAUSE BY THE STATE LAW THE VENDOR IN A LAND CONTRACT MAY
DECLARE A FORFEITURE UPON DEFAULT, CAN NOT BE SUSTAINED, SINCE IT DOES
NOT APPEAR FROM THE RECORD THAT THE CONTRACT IN THIS CASE CONTAINED A
FORFEITURE CLAUSE, NOR THAT THERE WAS IN FACT A FORFEITURE APART FROM
THE FORECLOSURE SALE.  P. 512. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. HAMMEL ET UX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 310 U.S. 619, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS REDETERMINING A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO SAY WHETHER A LOSS SUSTAINED BY AN INDIVIDUAL
TAXPAYER UPON THE FORECLOSURE SALE OF HIS INTEREST IN REAL ESTATE,
ACQUIRED FOR PROFIT, IS A LOSS WHICH, UNDER SEC. 23(E)(2) OF THE 1934
REVENUE ACT, 48 STAT. 680, MAY BE DEDUCTED IN FULL FROM GROSS INCOME
FOR THE PURPOSE OF ARRIVING AT TAXABLE INCOME, OR IS A CAPITAL LOSS
DEDUCTIBLE ONLY TO THE LIMITED EXTENT PROVIDED IN SECS. 23(E)(2), (J),
AND 117. 

IN THE COMPUTATION OF TAXABLE INCOME SEC. 23(E)(2) OF THE 1934
REVENUE ACT PERMITS THE INDIVIDUAL TAXPAYER TO DEDUCT LOSSES SUSTAINED
DURING THE YEAR INCURRED IN ANY TRANSACTION FOR PROFIT.  SUBSECTION (J)
PROVIDES THAT "LOSSES FROM SALES OR EXCHANGES OF CAPITAL ASSETS" SHALL
BE ALLOWED ONLY TO THE EXTENT OF $2,000 PLUS GAINS FROM SUCH SALES OR
EXCHANGES AS PROVIDED BY SEC. 117(D).  BY SEC. 117(B) IT IS DECLARED
THAT "CAPITAL ASSETS" "MEANS PROPERTY HELD BY THE TAXPAYER  ...  BUT
DOES NOT INCLUDE STOCK IN TRADE OF THE TAXPAYER  ...  OR PROPERTY HELD
BY THE TAXPAYER PRIMARILY FOR SALE TO CUSTOMERS IN THE ORDINARY COURSE
OF HIS TRADE OR BUSINESS." 

RESPONDENT TAXPAYERS, WITH OTHER MEMBERS OF A SYNDICATE, PURCHASED
"ON LAND CONTRACT" A PLOT OF LAND IN OAKLAND COUNTY, MICHIGAN, FOR THE
SUM OF $96,000, UPON A DOWN PAYMENT OF $20,000.  THE PRECISE NATURE OF
THE CONTRACT DOES NOT APPEAR BEYOND THE FACT THAT PAYMENTS FOR THE LAND
WERE TO BE MADE IN INSTALLMENTS, AND THE VENDOR RETAINED AN INTEREST IN
THE LAND AS SECURITY FOR PAYMENT OF THE BALANCE OF THE PURCHASE PRICE. 
BEFORE THE PURCHASE PRICE WAS PAID IN FULL THE SYNDICATE DEFAULTED ON
ITS PAYMENTS.  THE VENDOR INSTITUTED FORECLOSURE PROCEEDINGS BY SUIT IN
EQUITY IN A STATE COURT WHICH RESULTED IN A JUDICIAL SALE OF THE
PROPERTY, THE VENDOR BECOMING THE PURCHASER, AND IN A DEFICIENCY
JUDGMENT AGAINST THE MEMBERS OF THE SYNDICATE.  RESPONDENTS'
CONTRIBUTION TO THE PURCHASE MONEY, SOME $4,000, WAS LOST. 

THE COMMISSIONER, IN COMPUTING RESPONDENTS' TAXABLE INCOME FOR 1934,
TREATED THE TAXPAYERS' INTEREST IN THE LAND AS A CAPITAL ASSET AND
ALLOWED DEDUCTION OF THE LOSS FROM GROSS INCOME ONLY TO THE EXTENT OF
$2,000 AS PROVIDED BY SECS. 23(J) AND 117(D), IN THE CASE OF LOSSES
FROM SALES OF CAPITAL ASSETS.  THE BOARD OF TAX APPEALS RULED THAT THE
LOSS WAS DEDUCTIBLE IN FULL.  THE CIRCUIT COURT OF APPEALS AFFIRMED,
108 F.2D 753, HOLDING THAT THE LOSS ESTABLISHED BY THE FORECLOSURE SALE
WAS NOT A LOSS FROM A "SALE" WITHIN THE MEANING OF SEC. 23(J).  WE
GRANTED CERTIORARI, 310 U.S. 619, TO RESOLVE A CONFLICT OF THE DECISION
BELOW WITH THAT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN
COMMISSIONER V. ELECTRO-CHEMICAL ENGRAVING CO., 110 F.2D 614. 

IT IS NOT DENIED THAT IT WAS THE FORECLOSURE SALE OF RESPONDENTS'
INTEREST IN THE LAND PURCHASED BY THE SYNDICATE FOR PROFIT, WHICH
FINALLY LIQUIDATED THE CAPITAL INVESTMENT MADE BY ITS MEMBERS AND FIXED
THE PRECISE AMOUNT OF THE LOSS WHICH RESPONDENTS SEEK TO DEDUCT AS SUCH
FROM GROSS INCOME.  BUT THEY ARGUE THAT THE "LOSSES FROM SALES" WHICH
BY SEC. 23(J) ARE MADE DEDUCTIBLE ONLY TO THE LIMITED EXTENT PROVIDED
BY SEC. 117(D) ARE THOSE LOSSES RESULTING FROM SALES VOLUNTARILY MADE
BY THE TAXPAYER, AND THAT LOSSES RESULTING FROM FORCED SALES LIKE THE
PRESENT NOT BEING SUBJECT TO THE LIMITATIONS OF SEC. 117(D) ARE
DEDUCTIBLE IN FULL LIKE OTHER LOSSES UNDER SEC. 23(E)(2). 

TO READ THIS QUALIFICATION INTO THE STATUTE RESPONDENTS RELY ON
JUDICIAL DECISIONS APPLYING THE FAMILIAR RULE THAT A RESTRICTIVE
COVENANT AGAINST SALE OR ASSIGNMENT REFERS TO THE VOLUNTARY ACTION OF
THE COVENANTOR AND NOT TO TRANSFERS BY OPERATION OF LAW OR JUDICIAL
SALES IN INVITUM.  SEE GUARANTY TRUST CO. V. GREEN COVE & M.R. CO., 139
U.S. 137; GAZLAY V. WILLIAMS, 210 U.S. 41; RIGGS V. PURSELL, 66 N.Y.
193.  BUT HERE WE ARE NOT CONCERNED WITH A RESTRICTIVE COVENANT OF THE
TAXPAYER, BUT WITH A SALE AS AN EFFECTIVE MEANS OF ESTABLISHING A
DEDUCTIBLE LOSS FOR THE PURPOSE OF COMPUTING HIS INCOME TAX.  THE TERM
SALE MAY HAVE MANY MEANINGS, DEPENDING ON THE CONTEXT, SEE WEBSTER'S
NEW INTERNATIONAL DICTIONARY.  THE MEANING HERE DEPENDS ON THE PURPOSE
WITH WHICH IT IS USED IN THE STATUTE AND THE LEGISLATIVE HISTORY OF
THAT USE.  HENCE THE RESPONDENTS ARGUE THAT THE PURPOSE OF PROVIDING IN
THE 1934 ACT FOR A SPECIAL TREATMENT OF GAINS OR LOSSES FROM CAPITAL
ASSETS WAS TO PREVENT TAX AVOIDANCE BY DEPRIVING THE TAXPAYER OF THE
OPTION ALLOWED TO HIM BY THE EARLIER ACTS, TO EFFECT LOSSES DEDUCTIBLE
IN FULL BY SALES OF PROPERTY AT ANY TIME WITHIN TWO YEARS AFTER IT WAS
ACQUIRED, WHICH UNTIL HELD FOR THAT PERIOD WAS NOT DEFINED AS A CAPITAL
ASSET, SEC. 208 REVENUE ACT OF 1924, 43 STAT. 253; SEC. 208 REVENUE ACT
OF 1926, 44 STAT. 19, AND SEC. 101 OF THE REVENUE ACT OF 1928, 45 STAT.
811. 

IT IS SAID THAT SINCE LOSSES FROM FORECLOSURE SALES NOT WITHIN THE
CONTROL OF THE TAXPAYER ARE NOT WITHIN THE EVIL AIMED AT BY THE 1934
ACT, THEY MUST BE DEEMED TO BE EXCLUDED FROM THE REACH OF ITS
LANGUAGE.  TO SUPPORT THIS CONTENTION RESPONDENTS RELY ON THE REPORT OF
THE WAYS AND MEANS COMMITTEE SUBMITTING TO THE HOUSE THE BILL WHICH,
WITH AMENDMENTS NOT NOW MATERIAL, BECAME THE REVENUE ACT OF 1934.  THE
COMMITTEE IN POINTING OUT A "DEFECT" OF THE EXISTING LAW SAID:
"TAXPAYERS TAKE THEIR LOSSES WITHIN THE TWO YEAR PERIOD AND GET FULL
BENEFIT THEREFROM AND DELAY TAKING GAINS UNTIL THE TWO-YEAR PERIOD HAS
EXPIRED, THEREBY REDUCING THEIR TAXES."  H. REPT. 704, 73D CONG., 2D
SESS., PP. 9 AND 10. 

BUT THE TREATMENT OF GAINS AND LOSSES FROM SALES OF CAPITAL ASSETS ON
A DIFFERENT BASIS FROM ORDINARY GAINS AND LOSSES WAS NOT INTRODUCED
INTO THE REVENUE LAWS BY THE 1934 ACT.  THAT HAD BEEN A FEATURE OF
EVERY REVENUE LAW BEGINNING WITH THE ACT OF 1921, 42 STAT. 227, AND
EACH HAD DEFINED AS CAPITAL LOSSES "LOSSES FROM SALES OR EXCHANGES OF
CAPITAL ASSETS."  THE 1934 ACT MADE NO CHANGE IN THIS RESPECT BUT FOR
THE FIRST TIME IT PROVIDED THAT "CAPITAL ASSETS" SHOULD INCLUDE ALL
PROPERTY ACQUIRED BY THE TAXPAYER FOR PROFIT REGARDLESS OF THE LENGTH
OF TIME HELD BY HIM AND THAT CAPITAL GAINS AND LOSSES FROM SALES OF
CAPITAL ASSETS SHOULD BE RECOGNIZED IN THE COMPUTATION OF TAXABLE
INCOME ACCORDING TO THE LENGTH OF TIME THE CAPITAL ASSETS ARE HELD BY
THE TAXPAYER, VARYING FROM 100% IF THE CAPITAL ASSET IS HELD FOR NOT
MORE THAN A YEAR TO 30% IF IT IS HELD MORE THAN TEN YEARS.  SEC.
117(A).  FINALLY, FOR THE FIRST TIME, THE STATUTE PROVIDED THAT CAPITAL
LOSSES IN EXCESS OF CAPITAL GAINS SHOULD BE DEDUCTED FROM ORDINARY
INCOME ONLY TO THE EXTENT OF $2,000.  THUS BY TREATING ALL PROPERTY
ACQUIRED BY THE TAXPAYER FOR PROFIT AS CAPITAL ASSETS AND LIMITING THE
DEDUCTION OF CAPITAL LOSSES IN THE MANNER INDICATED, THE ACT MATERIALLY
CURTAILED THE ADVANTAGES WHICH THE TAXPAYER HAD PREVIOUSLY BEEN ABLE TO
GAIN BY CHOOSING THE TIME OF SELLING HIS PROPERTY. 

THE DEFINITION OF CAPITAL LOSSES AS LOSSES FROM "SALES" OF CAPITAL
ASSETS, AS WE HAVE POINTED OUT, WAS NOT NEW.  AS WILL PRESENTLY APPEAR,
THE LEGISLATIVE HISTORY OF THIS DEFINITION SHOWS THAT IT WAS NOT CHOSEN
TO EXCLUDE FROM THE CAPITAL ASSETS PROVISIONS LOSSES RESULTING FROM
FORCED SALES OF TAXPAYERS' PROPERTY.  AND, IF SO CONSTRUED, SUBSTANTIAL
LOSS OF REVENUE WOULD RESULT UNDER THE 1934 ACT, WHOSE PURPOSE WAS TO
AVOID LOSS OF REVENUE BY THE APPLICATION OF THE CAPITAL ASSETS
PROVISIONS.  IN DRAFTING THE 1934 ACT THE COMMITTEE HAD BEFORE IT
PROPOSALS FOR STABILIZING THE REVENUE BY THE ADOPTION OF THE BRITISH
SYSTEM UNDER WHICH NEITHER CAPITAL GAINS NOR LOSSES ENTER INTO THE
COMPUTATION OF THE TAX.  IN DECLINING TO FOLLOW THIS SYSTEM IN ITS
ENTIRETY THE COMMITTEE SAID:  "IT IS DEEMED WISER TO ATTEMPT A STEP IN
THIS DIRECTION WITHOUT LETTING CAPITAL GAINS GO ENTIRELY UNTAXED."  IT
ACCORDINGLY REDUCED THE TAX BURDEN ON CAPITAL GAINS PROGRESSIVELY WITH
THE INCREASE OF THE PERIOD UP TO TEN YEARS, DURING WHICH THE TAXPAYER
HOLDS THE CAPITAL ASSET, AND PERMITTED THE DEDUCTION, ON THE SAME
SCALE, OF CAPITAL LOSSES, BUT ONLY TO THE EXTENT THAT THERE ARE TAXABLE
CAPITAL GAINS, PLUS $2,000.  IN THUS RELIEVING CAPITAL GAINS FROM THE
TAX IMPOSED ON OTHER TYPES OF INCOME, IT CANNOT BE ASSUMED, IN THE
ABSENCE OF SOME CLEAR INDICATION TO THE CONTRARY, THAT CONGRESS
INTENDED TO PERMIT DEDUCTIONS IN FULL OF LOSSES RESULTING FROM FORCED
SALES OF THE TAXPAYERS' PROPERTY, FROM EITHER CAPITAL GAINS OR ORDINARY
GROSS INCOME, WHILE TAXING ONLY A FRACTION OF THE GAINS RESULTING FROM
THE SALES OF SUCH PROPERTY.  SEE WHITE V. UNITED STATES, 305 U.S. 281,
292; HELVERING V. INTER-MOUNTAIN LIFE INS. CO., 294 U.S. 686, 689,
690. 

THE TAXATION OF CAPITAL GAINS AFTER DEDUCTION OF CAPITAL LOSSES ON A
MORE FAVORABLE BASIS THAN OTHER INCOME, WAS PROVIDED FOR BY SEC. 206 OF
THE 1921 REVENUE ACT, AS THE MEANS OF ENCOURAGING PROFIT-TAKING SALES
OF CAPITAL INVESTMENTS, H. REPT. NO. 350, 67TH CONG., 2D SESS., P. 8. 
BURNET V. HARMEL, 287 U.S. 103, 106.  IN THIS SECTION, AS IN LATER
ACTS, CAPITAL NET GAIN WAS DEFINED AS "THE EXCESS OF THE TOTAL CAPITAL
GAIN OVER THE SUM OF CAPITAL DEDUCTIONS AND CAPITAL LOSSES"; CAPITAL
LOSSES BEING DEFINED AS THE LOSS RESULTING FROM THE SALE OR EXCHANGE OF
CAPITAL ASSETS.  IN SUBMITTING THE PROPOSED REVENUE ACT OF 1924, THE
HOUSE COMMITTEE POINTED OUT THAT THE 1921 ACT CONTAINED NO PROVISION
FOR LIMITING DEDUCTION OF CAPITAL LOSSES WHERE THEY EXCEEDED THE AMOUNT
OF CAPITAL GAINS.  H. REPT. NO. 179, 68TH CONG., 1ST SESS., P. 14. 
THIS WAS REMEDIED BY PROVIDING IN SEC. 208(C) THAT THE AMOUNT BY WHICH
THE TAX IS REDUCED ON ACCOUNT OF A CAPITAL LOSS SHALL NOT EXCEED 12
1/2% OF THE CAPITAL LOSS.  IN COMMENTING ON THIS PROVISION THE
COMMITTEE SAID, P. 20: "IF THE AMOUNT BY WHICH THE TAX IS TO BE
INCREASED ON ACCOUNT OF CAPITAL GAINS IS LIMITED TO 12 1/2% OF THE
CAPITAL GAIN IT FOLLOWS LOGICALLY THAT THE AMOUNT BY WHICH THE TAX IS
REDUCED ON ACCOUNT OF CAPITAL LOSSES SHALL BE LIMITED TO THE 12 1/2% OF
THE LOSS."  THIS PROVISION WAS CONTINUED WITHOUT CHANGES NOW MATERIAL
UNTIL THE 1934 ACT.  SEC. 208(C) IN THE 1924 AND 1926 ACTS; SEC. 101(B)
IN THE 1928 AND 1932 ACTS, 47 STAT. 191. 

CONGRESS THUS HAS GIVEN CLEAR INDICATION OF A PURPOSE TO OFFSET
CAPITAL GAINS BY LOSSES FROM THE SALE OF LIKE PROPERTY AND UPON THE
SAME PERCENTAGE BASIS AS THAT ON WHICH THE GAINS ARE TAXED.  SEE UNITED
STATES V. PLEASANTS, 305 U.S. 357, 360.  THIS PURPOSE TO TREAT GAINS
AND DEDUCTIBLE LOSSES ON A PARITY BUT WITH A FURTHER SPECIFIC PROVISION
PROVIDED BY SEC. 117(D) OF THE 1934 ACT, PERMITTING SPECIFIED
PERCENTAGES OF CAPITAL LOSSES TO BE DEDUCTED FROM ORDINARY INCOME TO
THE EXTENT OF $2,000, WOULD BE DEFEATED IN A MOST SUBSTANTIAL WAY IF
ONLY A PERCENTAGE OF THE GAINS WERE TAXED BUT LOSSES ON SALES OF LIKE
PROPERTY COULD BE DEDUCTED IN FULL FROM GROSS INCOME.  THIS TREATMENT
OF LOSSES FROM SALES OF CAPITAL ASSETS IN THE 1924 AND LATER ACTS AND
THE REASON GIVEN FOR ADOPTING IT AFFORD CONVINCING EVIDENCE THAT THE
"SALES" REFERRED TO IN THE STATUTE INCLUDE FORCED SALES SUCH AS HAVE
SUFFICED, UNDER LONG ACCEPTED INCOME TAX PRACTICE, TO ESTABLISH A
DEDUCTIBLE LOSS IN THE CASE OF NON-CAPITAL ASSETS.  SUCH SALES CAN
EQUALLY BE TAKEN TO ESTABLISH THE LOSS IN THE CASE OF CAPITAL ASSETS
WITHOUT INFRINGING THE DECLARED POLICY OF THE STATUTE TO TREAT CAPITAL
GAINS AND LOSSES ON A PARITY. 

WE CAN FIND NO BASIS IN THE LANGUAGE OF THE ACT, ITS PURPOSE OR ITS
LEGISLATIVE HISTORY, FOR SAYING THAT LOSSES FROM SALES OF CAPITAL
ASSETS UNDER THE 1934 ACT, MORE THAN ITS PREDECESSORS, WERE TO BE
TREATED ANY DIFFERENTLY WHETHER THEY RESULTED FROM FORCED SALES OR
VOLUNTARY SALES.  TRUE, COURTS IN THE INTERPRETATION OF A STATUTE HAVE
SOME SCOPE FOR ADOPTING A RESTRICTED RATHER THAN A LITERAL OR USUAL
MEANING OF ITS WORDS WHERE ACCEPTANCE OF THAT MEANING WOULD LEAD TO
ABSURD RESULTS, UNITED STATES V. KATZ, 271 U.S. 354, 362, OR WOULD
THWART THE OBVIOUS PURPOSE OF THE STATUTE, HAGGAR CO. V. HELVERING, 308
U.S. 389.  BUT COURTS ARE NOT FREE TO REJECT THAT MEANING WHERE NO SUCH
CONSEQUENCES FOLLOW AND WHERE, AS HERE, IT APPEARS TO BE CONSONANT WITH
THE PURPOSES OF THE ACT AS DECLARED BY CONGRESS AND PLAINLY DISCLOSED
BY ITS STRUCTURE. 

IT IS NOT WITHOUT SIGNIFICANCE THAT CONGRESS, IN THE 1934 ACT,
ENLARGED THE SCOPE OF ITS PROVISIONS RELATING TO LOSSES FROM SALES OF
CAPITAL ASSETS BY INCLUDING WITHIN THEM LOSSES UPON THE DISPOSITION OF
THE TAXPAYER'S PROPERTY BY METHODS OTHER THAN SALE AND WITHOUT
REFERENCE TO THE VOLUNTARY ACTION OF THE TAXPAYER.  IT THUS TREATS AS
LOSSES FROM SALES OR EXCHANGES THE LOSS SUSTAINED FROM REDEMPTION OF
STOCK, SEC. 115(C), RETIREMENT OF BONDS, SEC. 117(F), LOSSES FROM SHORT
SALES, SEC. 117(E)(1), AND LOSS SUSTAINED BY FAILURE OF THE HOLDER OF
AN OPTION TO EXERCISE IT, SEC. 117(E)(2), ALTHOUGH NONE OF THESE
TRANSACTIONS INVOLVES A LOSS FROM A SALE.  SEE MCCLAIN V. COMMISSIONER,
POST, P. 527.    THE SCOPE OF THE CAPITAL LOSS PROVISIONS WAS STILL
FURTHER ENLARGED BY SEC. 23(K)(2) OF THE REVENUE ACT OF 1938, 52 STAT.
447, WHICH PROVIDES THAT IF SECURITIES, WHICH ARE CAPITAL ASSETS, ARE
ASCERTAINED TO BE WORTHLESS AND ARE CHARGED OFF WITHIN THE TAXABLE YEAR
THE LOSS, WITH AN EXCEPTION NOT NOW MATERIAL, SHALL BE CONSIDERED AS A
LOSS ARISING FROM A SALE OR EXCHANGE.  THESE PROVISIONS DISCLOSE A
CONSISTENT LEGISLATIVE POLICY TO ENLARGE THE CLASS OF DEDUCTIBLE LOSSES
MADE SUBJECT TO THE CAPITAL ASSETS PROVISIONS WITHOUT REGARD TO THE
VOLUNTARY ACTION OF THE TAXPAYER IN PRODUCING THEM.  WE COULD HARDLY
SUPPOSE THAT CONGRESS WOULD NOT HAVE MADE PROVISION FOR THE LIKE
TREATMENT OF LOSSES RESULTING FROM A FORCED SALE OF THE TAXPAYER'S
PROPERTY ACQUIRED FOR PROFIT EITHER IN THE 1934 OR 1938 ACT, IF IT HAD
THOUGHT THAT THE TERM "SALES OR EXCHANGES" AS USED IN BOTH ACTS DID NOT
INCLUDE SUCH SALES OF THE TAXPAYER'S PROPERTY. 

RESPONDENTS ALSO ADVANCE THE ARGUMENT, SUSTAINED IN COMMISSIONER V.
FREIHOFER, 102 F.2D 787, THAT THE DEFINITIVE EVENT FIXING RESPONDENTS'
LOSS WAS NOT THE FORECLOSURE SALE BUT THE DECREE OF FORECLOSURE WHICH
ORDERED THE SALE AND PRECEDED IT.  BUT SINCE THE FORECLOSURE
CONTEMPLATED BY THE DECREE WAS FORECLOSURE BY SALE AND THE FORECLOSED
PROPERTY HAD VALUE WHICH WAS CONCLUSIVELY ESTABLISHED BY THE SALE FOR
THE PURPOSES OF THE FORECLOSURE PROCEEDING, THE SALE WAS THE DEFINITIVE
EVENT ESTABLISHING THE LOSS WITHIN THE MEANING AND FOR THE PURPOSE OF
THE REVENUE LAWS.  THEY ARE DESIGNED FOR APPLICATION TO THE PRACTICAL
AFFAIRS OF MEN.  THE SALE, WHICH FINALLY CUTS OFF THE INTEREST OF THE
MORTGAGOR AND IS THE MEANS FOR DETERMINING THE AMOUNT OF THE DEFICIENCY
JUDGMENT AGAINST HIM, IS A MEANS ADOPTED BY THE STATUTE FOR DETERMINING
THE AMOUNT OF HIS CAPITAL GAIN OR LOSS FROM THE SALE OF THE MORTGAGED
PROPERTY. 

THE COURT BELOW ALSO THOUGHT THAT THE LOSS SUFFERED BY RESPONDENTS
COULD NOT BE TREATED AS A LOSS FROM A SALE SINCE BY THE LAW OF MICHIGAN
THE VENDOR UPON A LAND-CONTRACT CONTAINING THE USUAL FORFEITURE CLAUSE
HAD THE RIGHT TO DEPRIVE RESPONDENTS AND THEIR JOINT ADVENTURERS OF ALL
INTEREST IN THE PROPERTY BY A DECLARATION OF FORFEITURE, AND THAT THE
ONLY ADDITIONAL ADVANTAGE OF FORECLOSURE WAS TO OBTAIN A DEFICIENCY
JUDGMENT.  BUT THERE IS NOTHING IN THIS RECORD TO SHOW THAT THE LAND
CONTRACT IN THIS CASE CONTAINED A FORFEITURE CLAUSE.  EVEN IF IT DID,
IT DOES NOT APPEAR THAT THERE WAS IN FACT A FORFEITURE APART FROM THE
SALE ON FORECLOSURE.  CF. DAVIDSON V. COMMISSIONER, 305 U.S. 44, 46;
HELVERING V. MIDLAND INSURANCE CO., 300 U.S. 216, 224; UNITED STATES V.
PHELLIS, 257 U.S. 156, 172.  REVERSED. 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED FOR THE REASONS STATED IN THE OPINION OF THE CIRCUIT COURT OF
APPEALS, 108 F.2D 753. 
..END :
























ELECTRO-CHEMICAL CO. V. COMM'R, 311 U.S. 513 


NO. 62.  ARGUED DECEMBER 12, 1940.  - DECIDED JANUARY 6, 1941.  - 110
F.2D 614, AFFIRMED. 


A LOSS SUSTAINED BY A CORPORATION UPON FORECLOSURE SALE OF ITS
MORTGAGED PROPERTY, HELD, IN COMPUTING TAXABLE INCOME UNDER THE REVENUE
ACT OF 1934, DEDUCTIBLE ONLY TO THE LIMITED EXTENT ALLOWED BY SECS.
23(J) AND 117(D) FOR LOSSES FROM "SALES" OR EXCHANGES OF CAPITAL
ASSETS.  HELVERING V. HAMMEL, ANTE, P. 504, FOLLOWED.  P. 514. 

ELECTRO-CHEMICAL ENGRAVING CO., INC. V. COMMISSIONER OF INTERNAL
REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 310 U.S. 622, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS REDETERMINING A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO HELVERING V. HAMMEL, ANTE, P. 504. 

THE QUESTION IS WHETHER THE LOSS SUFFERED BY PETITIONER ON
FORECLOSURE SALE OF HIS MORTGAGED PROPERTY, ACQUIRED FOR PROFIT, MAY BE
DEDUCTED IN FULL FROM GROSS INCOME OR ONLY TO THE EXTENT PROVIDED BY
SEC. 117(D) OF THE 1934 REVENUE ACT.  THE STATUTORY PROVISIONS INVOLVED
ARE THOSE OF THE 1934 ACT RELATING TO CAPITAL GAINS OR LOSSES,
PARTICULARLY "LOSSES FROM SALES OR EXCHANGES OF CAPITAL ASSETS"
CONSIDERED IN THE HAMMEL CASE WHICH ARE MADE APPLICABLE TO PETITIONER,
A CORPORATION, BY SEC. 23(F)(J). 

THE BOARD OF TAX APPEALS RULED THAT PETITIONER'S LOSS WAS DEDUCTIBLE
IN FULL FROM ITS ORDINARY INCOME.  THE COURT OF APPEALS FOR THE SECOND
CIRCUIT REVERSED THE BOARD, 110 F.2D 614, HOLDING THAT THE LOSS
SUSTAINED BY PETITIONER WAS A LOSS FROM A SALE OF CAPITAL ASSETS, SEC.
23(J), WHICH UNDER SEC. 117(D) COULD BE DEDUCTED FROM THE GROSS INCOME
ONLY TO THE EXTENT OF CAPITAL GAINS, PLUS $2,000.  WE GRANTED
CERTIORARI, 310 U.S. 622, SO THAT THE CASE MIGHT BE CONSIDERED WITH THE
CONFLICTING DECISION OF THE COURT OF APPEALS FOR THE SIXTH CIRCUIT IN
THE HAMMEL CASE, 108 F.2D 753.  FOR THE REASONS STATED IN OUR OPINION
IN THE HAMMEL CASE WE THINK THAT THIS CASE WAS RIGHTLY DECIDED BELOW. 
AFFIRMED. 

MR. JUSTICE ROBERTS DISSENTS. 
..END :






H.J. HEINZ CO. V. LABOR BOARD, 311 U.S. 514 


NO. 73.  ARGUED DECEMBER 17, 18, 1940.  - DECIDED JANUARY 6, 1941.  -
110 F.2D 843, AFFIRMED. 


1.  THE QUESTION OF THE RESPONSIBILITY OF AN EMPLOYER, UNDER THE
NATIONAL LABOR RELATIONS ACT, FOR UNAUTHORIZED ACTIVITIES OF
SUPERVISORY EMPLOYEES IS NOT ONE OF LEGAL LIABILITY ON PRINCIPLES OF
AGENCY OR RESPONDENT SUPERIOR, BUT ONLY WHETHER THE ACT CONDEMNS SUCH
ACTIVITIES AS UNFAIR LABOR PRACTICES SO FAR AS THE EMPLOYER MAY GAIN
FROM THEM IN THE BARGAINING PROCESS ANY ADVANTAGE OF A KIND WHICH THE
ACT PROSCRIBES.  TO THAT EXTENT THE EMPLOYER IS AMENABLE TO THE BOARD'S
AUTHORITY TO PREVENT REPETITION OF SUCH ACTIVITIES AND TO REMOVE THE
CONSEQUENCES OF THEM UPON THE EMPLOYEES' RIGHT OF SELF-ORGANIZATION. 
PP. 518, 521. 

SO HELD WHERE THE EMPLOYER, WHEN ADVISED OF ACTIVITIES OF SUPERVISORY
EMPLOYEES ENCOURAGING THE FORMATION OF A PLANT UNION, TOOK NO STEP TO
NOTIFY THE EMPLOYEES THAT SUCH ACTIVITIES WERE UNAUTHORIZED, OR TO
CORRECT THEIR IMPRESSION THAT SUPPORT OF A RIVAL LABOR UNION WAS NOT
FAVORED BY THE EMPLOYER AND WOULD RESULT IN REPRISALS.  P. 521. 

2.  WHETHER THE CONTINUED EXISTENCE OF A LABOR UNION, THE FORMATION
OF WHICH WAS INFLUENCED BY UNFAIR LABOR PRACTICES, CONSTITUTES AN
OBSTACLE TO THE EMPLOYEES' RIGHT OF SELF-ORGANIZATION, IS A QUESTION OF
FACT TO BE DETERMINED BY THE BOARD FROM ALL THE CIRCUMSTANCES ATTENDING
THOSE PRACTICES.  P. 522. 

3.  AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD REQUIRING THE
DISESTABLISHMENT OF A LABOR UNION, THE FORMATION OF WHICH WAS
INFLUENCED BY UNFAIR LABOR PRACTICES, HELD SUPPORTED BY THE EVIDENCE. 
P. 522. 

4.  REFUSAL OF AN EMPLOYER, ON REQUEST OF A LABOR ORGANIZATION, TO
SIGN A WRITTEN CONTRACT EMBODYING THE TERMS OF AN AGREEMENT WHICH HE
HAS REACHED WITH IT CONCERNING WAGES, HOURS, AND WORKING CONDITIONS, IS
A REFUSAL TO BARGAIN COLLECTIVELY AND AN UNFAIR LABOR PRACTICE UNDER
SEC. 8(5) OF THE ACT.  P. 525. 

5.  UNDER SEC. 10(C) OF THE NATIONAL LABOR RELATIONS ACT, THE BOARD
MAY REQUIRE AN EMPLOYER WHO HAS REACHED AN AGREEMENT WITH A LABOR
ORGANIZATION CONCERNING WAGES, HOURS, AND WORKING CONDITIONS, TO SIGN A
WRITTEN CONTRACT EMBODYING THE TERMS OF THE AGREEMENT.  P. 526. 

H.J. HEINZ COMPANY V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 310 U.S. 621, TO REVIEW A JUDGMENT DIRECTING ENFORCEMENT
OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THREE QUESTIONS ARE PRESENTED BY THE PETITION FOR CERTIORARI IN THIS
CASE. 

FIRST.  WHETHER THERE IS SUPPORT IN THE EVIDENCE FOR THE FINDING OF
THE NATIONAL LABOR RELATIONS BOARD THAT PETITIONER HAS BEEN GUILTY OF
THE UNFAIR LABOR PRACTICES DEFINED BY SEC. 8(1) AND (2) OF THE ACT,
INTERFERENCE WITH THE EXERCISE BY ITS EMPLOYEES OF THEIR RIGHTS OF
SELFORGANIZATION GUARANTEED BY SEC. 7 OF THE ACT, AND MORE PARTICULARLY
INTERFERENCE WITH THE FORMATION AND ORGANIZATION OF A LABOR UNION OF
ITS EMPLOYEES. 

SECOND.  WHETHER THE NATIONAL LABOR RELATIONS BOARD EXCEEDED ITS
AUTHORITY IN ORDERING THE DISESTABLISHMENT OF A LABOR UNION IN WHOSE
ORGANIZATION PETITIONER HAD INTERFERED, AND 

THIRD.  WHETHER THE BOARD COULD VALIDLY FIND THAT PETITIONER'S
REFUSAL TO JOIN WITH REPRESENTATIVES OF THE LABOR ORGANIZATION
AUTHORIZED TO REPRESENT ITS EMPLOYEES IN COLLECTIVE BARGAINING, IN
SIGNING A WRITTEN CONTRACT EMBODYING THE TERMS OF THEIR AGREEMENT
CONCERNING WAGES, HOURS AND WORKING CONDITIONS, CONSTITUTED A REFUSAL
TO BARGAIN COLLECTIVELY IN VIOLATION OF SEC. 8(5) OF THE ACT, AND
WHETHER THE BOARD EXCEEDED ITS AUTHORITY IN ORDERING PETITIONER TO JOIN
IN SIGNING THE AGREEMENT. 

THIS IS A PROCEEDING BROUGHT BY THE NATIONAL LABOR RELATIONS BOARD IN
THE COURT OF APPEALS FOR THE SIXTH CIRCUIT TO ENFORCE THE BOARD'S ORDER
DIRECTING PETITIONER TO CEASE CERTAIN UNFAIR LABOR PRACTICES IN WHICH
IT FOUND THAT PETITIONER HAD ENGAGED, IN CONNECTION WITH THE
ORGANIZATION OF THE HEINZ EMPLOYEES ASSOCIATION, A PLANT LABOR
ORGANIZATION OF PETITIONER'S EMPLOYEES; TO DISESTABLISH THE
ASSOCIATION; TO RECOGNIZE AND BARGAIN COLLECTIVELY WITH THE CANNING AND
PICKLE WORKERS LOCAL, UNION NO. 325, A LABOR ORGANIZATION AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR; AND TO SIGN A WRITTEN CONTRACT
EMBODYING ANY AGREEMENT WHICH PETITIONER AND THE UNION MAY REACH
RESPECTING WAGES, HOURS AND WORKING CONDITIONS OF PETITIONER'S
EMPLOYEES.  THE COURT OF APPEALS CONFIRMED THE FINDINGS OF THE BOARD
AND DIRECTED COMPLIANCE WITH THE BOARD'S ORDER WITHOUT MODIFICATION. 
110 F.2D 843.  WE GRANTED CERTIORARI, 310 U.S. 621, THE QUESTIONS
RAISED BY THE PETITION BEING OF PUBLIC IMPORTANCE IN THE ADMINISTRATION
OF THE NATIONAL LABOR RELATIONS ACT. 

THE BOARD FOUND THAT DURING APRIL AND MAY, 1937, THE TWO RIVAL LABOR
ORGANIZATIONS, THE ASSOCIATION AND THE UNION, SOUGHT TO ORGANIZE
PETITIONER'S EMPLOYEES AT ITS PITTSBURGH PLANT.  PETITIONER'S PROPOSAL
THAT AN ELECTION BE HELD TO DETERMINE WHICH ORGANIZATION REPRESENTED A
MAJORITY OF ITS EMPLOYEES WAS REJECTED BY THE UNION WHICH CALLED A
STRIKE ON MAY 24, 1937.  THE STRIKE WAS ULTIMATELY SETTLED BY A WRITTEN
CONTRACT SIGNED BY PETITIONER, THE UNION, AND THE ASSOCIATION, WHICH
PROVIDED FOR AN ELECTION, BY THE EMPLOYEES, UNDER THE SUPERVISION OF A
REGIONAL DIRECTOR OF THE NATIONAL LABOR RELATIONS BOARD FOR THE CHOICE
OF AN ORGANIZATION TO REPRESENT THEM IN COLLECTIVE BARGAINING. 
MEANWHILE, AND BEFORE THE ELECTION, A MAJORITY OF PETITIONER'S TWO
THOUSAND EMPLOYEES AT THE PITTSBURGH PLANT HAD SIGNED PETITIONS FOR
MEMBERSHIP IN THE ASSOCIATION, BUT UPON THE ELECTION HELD JUNE 8, 1937,
A MAJORITY OF THE EMPLOYEES CAST THEIR BALLOTS FOR THE UNION. 
PETITIONER HAS SINCE RECOGNIZED AND BARGAINED WITH THE UNION, BUT HAS
REFUSED TO EMBODY ITS AGREEMENT WITH THE UNION IN A WRITTEN CONTRACT. 

BEFORE THE ELECTION THE UNION HAD LODGED A COMPLAINT WITH THE BOARD
CONCERNING THE PARTICIPATION BY PETITIONER IN THE ATTEMPTED
ORGANIZATION OF THE ASSOCIATION BY PETITIONER'S EMPLOYEES.  THE BOARD
FOUND THAT PETITIONER HAD BEEN GUILTY OF UNFAIR LABOR PRACTICES BY
INTERFERING IN THE ORGANIZATION OF THE ASSOCIATION, CONTRARY TO THE
ACT.  IT FOUND IN DETAIL THAT PETITIONER, THROUGH SUPERINTENDENT,
FOREMEN AND OTHER SUPERVISING EMPLOYEES, HAD INTERFERED WITH,
RESTRAINED AND COERCED ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS TO
ORGANIZE IN VIOLATION OF SECS. 7, 8(1) OF THE ACT; THAT IT HAD
DOMINATED AND INTERFERED WITH THE FORMATION OF THE ASSOCIATION AND
CONTRIBUTED TO ITS SUPPORT WITHIN THE MEANING OF SEC. 8(2), AND THAT IT
HAD REFUSED TO SIGN AN AGREEMENT WITH THE UNION.  ON THE BASIS OF THESE
AND SUBSIDIARY FINDINGS WHICH NEED NOT NOW BE STATED, THE BOARD MADE
ITS ORDER, THE TERMS OF WHICH SO FAR AS NOW RELEVANT HAVE ALREADY BEEN
SET FORTH. 

PETITIONER'S RESPONSIBILITY FOR UNFAIR LABOR PRACTICES.  IT IS
UNNECESSARY TO MAKE A DETAILED EXAMINATION OF THE EVIDENCE SUPPORTING
THE BOARD'S FINDINGS RESPECTING UNFAIR LABOR PRACTICES BOTH BECAUSE THE
COURT BELOW, AFTER A THOROUGH EXAMINATION OF THE RECORD HAS CONFIRMED
THE BOARD'S FINDINGS, AND BECAUSE OF THE NATURE OF PETITIONER'S
CONTENTION WITH RESPECT TO THEM.  PETITIONER DOES NOT DENY THAT THERE
IS EVIDENCE SUPPORTING THE FINDINGS THAT PETITIONER'S SUPERINTENDENT,
DURING THE ORGANIZATION CAMPAIGN, UPBRAIDED EMPLOYEES FOR ATTENDING
UNION MEETINGS, THREATENED ONE WITH DISCHARGE IF HE JOINED THE UNION,
SPOKE TO THEM DISPARAGINGLY OF THE UNION AND DIRECTED SOME OF
PETITIONER'S FOREMEN TO ENROLL THE EMPLOYEES IN THE ASSOCIATION; OR
THAT THERE WAS EVIDENCE SUPPORTING THE FINDING THAT A GENERAL FOREMAN
WORKING THROUGHOUT PETITIONER'S PITTSBURGH PLANT WAS ACTIVE IN
DISPARAGING THE UNION AND ITS MEMBERS TO EMPLOYEES, AND IN URGING THEM
TO REPUDIATE THE UNION ORGANIZATION, OR THAT THREE OTHER FOREMEN IN
CHARGE OF PARTICULAR BUILDINGS OR DEPARTMENTS WERE ACTIVE IN DISSUADING
EMPLOYEES FROM JOINING THE UNION.  ALL THREE SPOKE DISPARAGINGLY OF THE
UNION, ONE AT A MEETING OF EMPLOYEES WHICH HE HAD CALLED; AND TWO WERE
ACTIVE IN QUESTIONING EMPLOYEES CONCERNING THEIR LABOR UNION
SYMPATHIES.  TWO OF THEM THREATENED EMPLOYEES WITH DISCHARGE OR LOSS OF
WORK OR PRIVILEGES IF THE UNION WERE RECOGNIZED. 

THERE WAS ALSO EVIDENCE THAT OTHER FOREMEN OR FOREWOMEN IN CHARGE OF
LARGE GROUPS OF EMPLOYEES ENGAGED IN SIMILAR ACTIVITIES; AND THAT SOME
SOLICITED EMPLOYEES TO JOIN THE ASSOCIATION; THAT ONE OF THE THREE
FOREMEN INDUCED AN EMPLOYEE TO SOLICIT SIGNATURES TO THE ASSOCIATION
PETITION DURING WORKING HOURS WITHOUT LOSS OF PAY, AND SUGGESTED THE
NAMES OF OTHER EMPLOYEES TO AID IN THIS WORK.  THERE WAS ALSO EVIDENCE
THAT LEADERS OR SUPERVISORS OF EMPLOYEE GROUPS WERE ALLOWED TO GO ABOUT
THE PLANT FREELY DURING WORKING HOURS AND WITHOUT LOSS OF PAY TO
SOLICIT MEMBERSHIPS IN THE ASSOCIATION WHICH WAS DONE IN THE PRESENCE
OF THE FOREMEN. 

PETITIONER DOES NOT SERIOUSLY DISPUTE THIS EVIDENCE OR CHALLENGE THE
FINDINGS OF THE BOARD SUMMARIZING IT.  THE CONTENTION IS THAT THE
ACTIVITIES OF THESE SUPERVISORS OF EMPLOYEES ARE NOT SHOWN TO HAVE BEEN
AUTHORIZED OR RATIFIED BY PETITIONER; THAT FOLLOWING A COMPLAINT BY A
REPRESENTATIVE OF THE UNION, ABOUT MAY 1ST, ONE OF PETITIONER'S
OFFICERS INSTRUCTED THE SUPERINTENDENT THAT THE EMPLOYEES HAD A RIGHT
TO ORGANIZE AND THAT HE WISHED THE SUPERVISING FORCE TO UNDERSTAND THAT
THEY SHOULD NOT BE INTERFERED WITH IN ANY WAY IN ORGANIZING, AND THAT
ON MAY 21ST THE OFFICER IN QUESTION CALLED A MEETING OF THE SUPERVISORY
FORCE AT WHICH HE GAVE LIKE INSTRUCTIONS; THAT THERE IS NO EVIDENCE OF
LIKE ACTIVITIES AFTER THIS TIME AND THAT SINCE THE ELECTION PETITIONER
HAS CONSISTENTLY RECOGNIZED AND BARGAINED WITH THE UNION.  FROM ALL
THIS PETITIONER CONCLUDES THAT IT IS NOT CHARGEABLE WITH ANY
RESPONSIBILITY FOR THE ACTS OF ITS SUPERVISORY EMPLOYEES AND THAT
CONSEQUENTLY THE EVIDENCE DOES NOT SUPPORT THE FINDINGS OF UNFAIR LABOR
PRACTICES ON ITS PART, OR JUSTIFY THE BOARD'S ORDER PROHIBITING
PETITIONER, ITS OFFICERS AND AGENTS FROM INTERFERING WITH THE
ADMINISTRATION OF THE ASSOCIATION OR CONTRIBUTING TO ITS SUPPORT. 

NOTWITHSTANDING THE KNOWLEDGE FROM THE START OF SOME OF PETITIONER'S
OFFICERS, OF THE ORGANIZATION CAMPAIGN, AND NOTWITHSTANDING THE UNUSUAL
EXCITEMENT AND ACTIVITY IN PETITIONER'S PLANT ATTENDING IT, WE ASSUME
THAT ALL WERE UNAWARE OF THE ACTIVITIES OF ITS SUPERVISORY STAFF
COMPLAINED OF, AND DID NOTHING TO ENCOURAGE THEM BEFORE THE COMPLAINT
OF THEIR ACTIVITIES MADE BY A REPRESENTATIVE OF THE UNION ABOUT MAY
1ST.  AT THAT TIME THE CAMPAIGN FOR MEMBERSHIP IN THE RIVAL UNIONS WAS
AT ITS HEIGHT AND RESULTED, AS ANNOUNCED SOME THREE OR FOUR WEEKS
LATER, IN A MAJORITY OF PETITIONER'S EMPLOYEES SIGNING AS MEMBERS OF
THE ASSOCIATION. 

IT IS CONCEDED THAT PETITIONER'S SUPERINTENDENT AND FOREMEN HAVE
AUTHORITY TO RECOMMEND THE EMPLOYMENT AND DISCHARGE OF WORKMEN.  IT IS
IN EVIDENCE THAT THEY CAN RECOMMEND WAGE INCREASES AND THAT THE GROUP
LEADERS ALSO ISSUED ORDERS DIRECTING AND CONTROLLING THE EMPLOYEES AND
THEIR WORK, WITH AUTHORITY TO RECOMMEND THEIR DISCHARGE.  THERE IS
EVIDENCE SUPPORTING THE BOARD'S CONCLUSION THAT THE EMPLOYEES REGARDED
THE FOREMEN AND THE GROUP LEADERS AS REPRESENTATIVES OF THE PETITIONER
AND THAT A NUMBER OF EMPLOYEES SIGNED AS MEMBERS OF THE ASSOCIATION
ONLY BECAUSE OF THE FEAR OF LOSS OF THEIR JOBS OR OF DISCRIMINATION BY
THE EMPLOYER INDUCED BY THE ACTIVITIES OF THE FOREMEN AND GROUP
LEADERS. 

WE DO NOT DOUBT THAT THE BOARD COULD HAVE FOUND THESE ACTIVITIES TO
BE UNFAIR LABOR PRACTICES WITHIN THE MEANING OF THE ACT IF COUNTENANCED
BY PETITIONER, AND WE THINK THAT TO THE EXTENT THAT PETITIONER MAY SEEK
OR BE IN A POSITION TO SECURE ANY ADVANTAGE FROM THESE PRACTICES THEY
ARE NOT ANY THE LESS WITHIN THE CONDEMNATION OF THE ACT BECAUSE
PETITIONER DID NOT AUTHORIZE OR DIRECT THEM.  IN A LIKE SITUATION WE
HAVE RECENTLY HELD THAT THE EMPLOYER, WHOSE SUPERVISING EMPLOYEES HAD,
WITHOUT HIS AUTHORITY, SO FAR AS APPEARED, SO PARTICIPATED IN THE
ORGANIZATION ACTIVITIES OF HIS EMPLOYEES AS TO PREJUDICE THEIR RIGHTS
OF SELF-ORGANIZATION, COULD NOT RESIST THE BOARD'S ORDER APPROPRIATELY
DESIGNED TO PRECLUDE HIM FROM GAINING ANY ADVANTAGE THROUGH RECOGNIZING
OR BARGAINING WITH A LABOR ORGANIZATION RESULTING FROM SUCH
ACTIVITIES.  INTERNATIONAL ASSOCIATION OF MACHINISTS V. NATIONAL LABOR
RELATIONS BOARD, ANTE, P. 72.  SEE NATIONAL LABOR RELATIONS BOARD V.
LINK-BELT CO., POST, P. 584. 

THE QUESTION IS NOT ONE OF LEGAL LIABILITY OF THE EMPLOYER IN DAMAGES
OR FOR PENALTIES ON PRINCIPLES OF AGENCY OR RESPONDEAT SUPERIOR, BUT
ONLY WHETHER THE ACT CONDEMNS SUCH ACTIVITIES AS UNFAIR LABOR PRACTICES
SO FAR AS THE EMPLOYER MAY GAIN FROM THEM ANY ADVANTAGE IN THE
BARGAINING PROCESS OF A KIND WHICH THE ACT PROSCRIBES.  TO THAT EXTENT
WE HOLD THAT THE EMPLOYER IS WITHIN THE REACH OF THE BOARD'S ORDER TO
PREVENT ANY REPETITION OF SUCH ACTIVITIES AND TO REMOVE THE
CONSEQUENCES OF THEM UPON THE EMPLOYEES' RIGHT OF SELF-ORGANIZATION,
QUITE AS MUCH AS IF HE HAD DIRECTED THEM. 

THIS IS THE MORE SO HERE WHERE PETITIONER, WHEN ADVISED OF THE
PARTICIPATION OF HIS SUPERVISING EMPLOYEES IN THE ORGANIZATION
CAMPAIGN, TOOK NO STEP, SO FAR AS APPEARS, TO NOTIFY THE EMPLOYEES THAT
THOSE ACTIVITIES WERE UNAUTHORIZED, OR TO CORRECT THE IMPRESSION OF THE
EMPLOYEES THAT SUPPORT OF THE UNION WAS NOT FAVORED BY PETITIONER AND
WOULD RESULT IN REPRISALS.  FROM THAT TIME ON THE BOARD COULD HAVE
FOUND THAT PETITIONER WAS AS RESPONSIBLE FOR THE EFFECT OF THE
ACTIVITIES OF ITS FOREMEN AND GROUP LEADERS UPON THE ORGANIZATION OF
THE ASSOCIATION AS IF IT HAD DIRECTED THEM IN ADVANCE.  THE BOARD COULD
HAVE CONCLUDED THAT THIS EFFECT WAS SUBSTANTIAL, FOR IT WAS IN THE
SUCCEEDING THREE WEEKS THAT MORE THAN ONEHALF OF THE MAJORITY OF
PETITIONER'S EMPLOYEES WHO JOINED THE ASSOCIATION SIGNED THEIR
PETITIONS FOR MEMBERSHIP.  WE THINK THERE WAS ADEQUATE BASIS FOR THE
BOARD'S ORDER PROHIBITING PETITIONER, ITS OFFICERS AND AGENTS, FROM
INTERFERING WITH THE EXERCISE OF ITS EMPLOYEES' RIGHTS OF
SELFORGANIZATION OR WITH THE ADMINISTRATION OF THE ASSOCIATION OR
CONTRIBUTING TO ITS SUPPORT. 

THE ORDER DISESTABLISHING THE ASSOCIATION.  WHAT WE HAVE SAID OF THE
UNFAIR LABOR PRACTICES FOUND BY THE BOARD, WHEN CONSIDERED WITH ITS
UNCHALLENGED FINDINGS AS TO THE RELATIONS OF PETITIONER TO THE TWO
UNIONS, AFFORDS THE ANSWER TO PETITIONER'S CONTENTION THAT THE BOARD
WAS WITHOUT AUTHORITY TO COMPEL DISESTABLISHMENT OF THE ASSOCIATION. 
DISESTABLISHMENT IS A REMEDIAL MEASURE UNDER SEC. 10(C) TO BE EMPLOYED
BY THE BOARD IN ITS DISCRETION TO REMOVE THE OBSTACLE TO THE EMPLOYEES'
RIGHT OF SELFORGANIZATION, RESULTING FROM THE CONTINUED OR RENEWED
RECOGNITION OF A UNION WHOSE ORGANIZATION HAS BEEN INFLUENCED BY UNFAIR
LABOR PRACTICES.  WHETHER THIS RECOGNITION IS SUCH AN OBSTACLE IS AN
INFERENCE OF FACT TO BE DRAWN BY THE BOARD FROM ALL THE CIRCUMSTANCES
ATTENDING THOSE PRACTICES.  NATIONAL LABOR RELATIONS BOARD V.
PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261; NATIONAL LABOR RELATIONS
BOARD V. NEWPORT NEWS SHIPBUILDING & DRY DOCK CO., 308 U.S. 241, 250. 

PETITIONER ARGUES THAT AS IT HAS NOW RECOGNIZED THE UNION AND BARGAINS
WITH IT, IT SHOULD BE EQUALLY FREE TO RECOGNIZE THE ASSOCIATION INSTEAD
OF THE UNION WHENEVER THE FORMER REPRESENTS A MAJORITY OF THE
EMPLOYEES.  BUT IN WEIGHING THIS CONTENTION THE BOARD COULD CONSIDER,
AS IT DID, THAT PETITIONER HAD FAILED TO NOTIFY ITS EMPLOYEES THAT IT
REPUDIATED THE PARTICIPATION OF ITS SUPERVISING EMPLOYEES IN THE
ORGANIZATION OF THE ASSOCIATION AND SO HAS NOT REMOVED THE BELIEF OF
THE EMPLOYEES THAT PETITIONER FAVORED AND WOULD CONTINUE TO FAVOR THE
ASSOCIATION AND THE EMPLOYEES JOINING IT OVER OTHERS; THAT IT HAD NOT
MENTIONED THE NAME OF THE UNION IN ITS BULLETINS ANNOUNCING THE TERMS
OF ITS AGREEMENT WITH THE UNION, AND ALTHOUGH IT HAD REACHED AN
AGREEMENT WITH THE UNION HAD PERSISTENTLY REFUSED TO SIGN ANY WRITTEN
CONTRACT WITH IT.    FROM THIS AND OTHER CIRCUMSTANCES DISCLOSED BY THE
EVIDENCE, THE BOARD INFERRED, AS IT MIGHT, THAT THE INFLUENCE OF THE
PARTICIPATION OF PETITIONER'S EMPLOYEES IN THE ORGANIZATION OF THE
ASSOCIATION HAD NOT BEEN REMOVED AND THAT THERE WAS DANGER THAT
PETITIONER WOULD SEEK TO TAKE ADVANTAGE OF SUCH CONTINUING INFLUENCE TO
RENEW ITS RECOGNITION OF THE ASSOCIATION AND CONTROL ITS ACTION.  THIS
WE THINK AFFORDED ADEQUATE BASIS FOR THE BOARD'S ORDER.  NATIONAL LABOR
RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, SUPRA; NATIONAL LABOR
RELATIONS BOARD V. FALK CORP., 308 U.S. 453, 461, 462; NATIONAL LABOR
RELATIONS BOARD V. LINK-BELT CO., POST, P. 584.  NOTHING IN THE ORDER
PRECLUDES MEMBERS OF THE ASSOCIATION FROM ESTABLISHING AN ORGANIZATION
INDEPENDENTLY OF PARTICIPATION BY PETITIONER AND ITS OFFICERS AND
AGENTS, AND FROM SECURING RECOGNITION THROUGH CERTIFICATION OF THE
BOARD OR AN ELECTION AS PROVIDED BY SEC. 9(C) OF THE ACT. 

THE EMPLOYER'S REFUSAL TO SIGN A WRITTEN AGREEMENT.  IT IS CONCEDED
THAT ALTHOUGH PETITIONER HAS REACHED AN AGREEMENT WITH THE UNION
CONCERNING WAGES, HOURS AND WORKING CONDITIONS OF THE EMPLOYEES, IT HAS
NEVERTHELESS REFUSED TO SIGN ANY CONTRACT EMBODYING THE TERMS OF THE
AGREEMENT.  THE BOARD SUPPORTS ITS ORDER DIRECTING PETITIONER, ON
REQUEST OF THE UNION, TO SIGN A WRITTEN CONTRACT EMBODYING THE TERMS
AGREED UPON ON THE GROUND, AMONG OTHERS, THAT A REFUSAL TO SIGN IS A
REFUSAL TO BARGAIN WITHIN THE MEANING OF THE ACT. 

IN SUPPORT OF THIS CONTENTION IT POINTS TO THE HISTORY OF THE
COLLECTIVE BARGAINING PROCESS SHOWING THAT ITS OBJECT HAS LONG BEEN AN
AGREEMENT BETWEEN EMPLOYER AND EMPLOYEES AS TO WAGES, HOURS AND WORKING
CONDITIONS EVIDENCED BY A SIGNED CONTRACT OR STATEMENT IN WRITING,
WHICH SERVES BOTH AS RECOGNITION OF THE UNION WITH WHICH THE AGREEMENT
IS REACHED AND AS A PERMANENT MEMORIAL OF ITS TERMS.  FN1  THIS
EXPERIENCE HAS SHOWN THAT REFUSAL TO SIGN A WRITTEN CONTRACT HAS BEEN A
NOT INFREQUENT MEANS OF FRUSTRATING THE BARGAINING PROCESS THROUGH THE
REFUSAL TO RECOGNIZE THE LABOR ORGANIZATION AS A PARTY TO IT AND THE
REFUSAL TO PROVIDE AN AUTHENTIC RECORD OF ITS TERMS WHICH COULD BE
EXHIBITED TO EMPLOYEES, AS EVIDENCE OF THE GOOD FAITH OF THE EMPLOYER. 
SUCH REFUSALS HAVE PROVED FRUITFUL SOURCES OF DISSATISFACTION AND
DISAGREEMENT N2.  CONTRASTED WITH THE UNILATERAL STATEMENT BY THE
EMPLOYER OF HIS LABOR POLICY, THE SIGNED AGREEMENT HAS BEEN REGARDED AS
THE EFFECTIVE INSTRUMENT OF STABILIZING LABOR RELATIONS AND PREVENTING,
THROUGH COLLECTIVE BARGAINING, STRIKES AND INDUSTRIAL STRIFE.  FN3 

BEFORE THE ENACTMENT OF THE NATIONAL LABOR RELATIONS ACT IT HAD BEEN
THE SETTLED PRACTICE OF THE ADMINISTRATIVE AGENCIES DEALING WITH LABOR
RELATIONS TO TREAT THE SIGNING OF A WRITTEN CONTRACT EMBODYING A WAGE
AND HOUR AGREEMENT AS THE FINAL STEP IN THE BARGAINING PROCESS.  FN4
CONGRESS, IN ENACTING THE NATIONAL LABOR RELATIONS ACT, HAD BEFORE IT
THE RECORD OF THIS EXPERIENCE, H. REPT. NO. 1147, 74TH CONG., 1ST
SESS., P. 5, AND SEE ALSO PP. 3, 7, 15-18, 20-22, 24; S. REPT. NO. 573,
74TH CONG., 1ST SESS., PP. 2, 8, 9, 13, 15, 17.  THE HOUSE COMMITTEE
RECOMMENDED THE LEGISLATION AS "AN AMPLIFICATION AND CLARIFICATION OF
THE PRINCIPLES ENACTED INTO LAW BY THE RAILWAY LABOR ACT AND BY SEC.
7(A) OF THE NATIONAL INDUSTRIAL RECOVERY ACT."  H. REPT. 1147, SUPRA,
P. 3 AND STATED, PAGE 7, THAT SECS. 7 AND 8 OF THE ACT GUARANTEEING
COLLECTIVE BARGAINING TO EMPLOYEES WAS A REENACTMENT OF THE LIKE
PROVISION OF SEC. 7(A) OF THE NATIONAL INDUSTRIAL RECOVERY ACT, SEE
CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197, 236; LABOR BOARD
V. SANDS MFG. CO., 306 U.S. 332, 342. 

WE THINK THAT CONGRESS, IN THUS INCORPORATING IN THE NEW LEGISLATION
THE COLLECTIVE BARGAINING REQUIREMENT OF THE EARLIER STATUTES INCLUDED
AS A PART OF IT, THE SIGNED AGREEMENT LONG RECOGNIZED UNDER THE EARLIER
ACTS AS THE FINAL STEP IN THE BARGAINING PROCESS.  IT IS TRUE THAT THE
NATIONAL LABOR RELATIONS ACT, WHILE REQUIRING THE EMPLOYER TO BARGAIN
COLLECTIVELY, DOES NOT COMPEL HIM TO ENTER INTO AN AGREEMENT.  BUT IT
DOES NOT FOLLOW, AS PETITIONER ARGUES, THAT, HAVING REACHED AN
AGREEMENT, HE CAN REFUSE TO SIGN IT, BECAUSE HE HAS NEVER AGREED TO
SIGN ONE.  HE MAY NEVER HAVE AGREED TO BARGAIN BUT THE STATUTE REQUIRES
HIM TO DO SO.  TO THAT EXTENT HIS FREEDOM IS RESTRICTED IN ORDER TO
SECURE THE LEGISLATIVE OBJECTIVE OF COLLECTIVE BARGAINING AS THE MEANS
OF CURTAILING LABOR DISPUTES AFFECTING INTERSTATE COMMERCE.  THE
FREEDOM OF THE EMPLOYER TO REFUSE TO MAKE AN AGREEMENT RELATES TO ITS
TERMS IN MATTERS OF SUBSTANCE AND NOT, ONCE IT IS REACHED, TO ITS
EXPRESSION IN A SIGNED CONTRACT, THE ABSENCE OF WHICH, AS EXPERIENCE
HAS SHOWN, TENDS TO FRUSTRATE THE END SOUGHT BY THE REQUIREMENT FOR
COLLECTIVE BARGAINING.  A BUSINESS MAN WHO ENTERED INTO NEGOTIATIONS
WITH ANOTHER FOR AN AGREEMENT HAVING NUMEROUS PROVISIONS, WITH THE
RESERVATION THAT HE WOULD NOT REDUCE IT TO WRITING OR SIGN IT, COULD
HARDLY BE THOUGHT TO HAVE BARGAINED IN GOOD FAITH.  THIS IS EVEN MORE
SO IN THE CASE OF AN EMPLOYER WHO, BY HIS REFUSAL TO HONOR, WITH HIS
SIGNATURE, THE AGREEMENT WHICH HE HAS MADE WITH A LABOR ORGANIZATION,
DISCREDITS THE ORGANIZATION, IMPAIRS THE BARGAINING PROCESS AND TENDS
TO FRUSTRATE THE AIM OF THE STATUTE TO SECURE INDUSTRIAL PEACE THROUGH
COLLECTIVE BARGAINING. 

PETITIONER'S REFUSAL TO SIGN WAS A REFUSAL TO BARGAIN COLLECTIVELY
AND AN UNFAIR LABOR PRACTICE DEFINED BY SEC. 8(5).  THE BOARD'S ORDER
REQUIRING PETITIONER AT THE REQUEST OF THE UNION TO SIGN A WRITTEN
CONTRACT EMBODYING AGREED TERMS IS AUTHORIZED BY SEC. 10(C).  THIS IS
THE CONCLUSION WHICH HAS BEEN REACHED BY FIVE OF THE SIX COURTS OF
APPEALS WHICH HAVE PASSED UPON THE QUESTION.  FN5  AFFIRMED. 

FN1  LEWIS L. LORWIN, THE AMERICAN FEDERATION OF LABOR, P. 309;
COMMONS AND ASSOCIATES, HISTORY OF LABOR IN THE UNITED STATES, VOL. II,
PP. 179-181, 423-424, 480; PERLMAN AND TAFT, HISTORY OF LABOR IN THE
UNITED STATES, 1896-1932, VOL. IV, PP. 9-10; PAUL MOONEY, COLLECTIVE
BARGAINING, PP. 13-14; TWENTIETH CENTURY FUND, INC., LABOR AND THE
GOVERNMENT, P. 339. 

CONCERNING THE GROWTH AND EXTENT OF SIGNED TRADE AGREEMENTS, SEE
NATIONAL LABOR RELATIONS BOARD, DIVISION OF ECONOMIC RESEARCH BULL. 
NO. 4, WRITTEN TRADE AGREEMENTS IN COLLECTIVE BARGAINING, PP. 213-236,
49-209; U.S. DEPT. OF LABOR, BUREAU OF LABOR STATISTICS, FIVE YEARS OF
COLLECTIVE BARGAINING, PP. 5-7; SAPOSS AND GAMM, RAPID INCREASE IN
CONTRACTS, 4 LABOR RELATIONS REPORTER NO. 15, P. 6. 

FN2  SUMMER H. SLICHTER, ANNALS OF THE AMERICAN ACADEMY (MARCH,
1935), PP. 110-120; R.R.R. BROOKS, WHEN LABOR ORGANIZES, P. 224.  CF.
MATTER OF INLAND STEEL CO., 9 N.L.R.B. 783, 796-797. 

FN3  CARROLL R. DAUGHERTY, LABOR PROBLEMS IN AMERICAN INDUSTRY (REV.
ED. 1938), PP. 936-937; MITCHELL, ORGANIZED LABOR, P. 347; GEORGE G.
GROAT, AN INTRODUCTION TO THE STUDY OF ORGANIZED LABOR IN AMERICA (2D
ED. 1926), PP. 337-339, 341, 345, 346; FIRST ANNUAL REPORT, NATIONAL
MEDIATION BOARD, PP. 1-2. 

FN4  THE NATIONAL MEDIATION BOARD ADMINISTERING THE RAILWAY LABOR ACT
OF 1926, AS AMENDED IN 1934, 44 STAT. 577, 48 STAT. 1185, INTERPRETED
THAT ACT WHICH IMPOSED A DUTY "TO EXERT EVERY REASONABLE EFFORT TO MAKE
AND MAINTAIN AGREEMENTS CONCERNING RATES OF PAY, RULES, AND WORKING
CONDITIONS  ...  ," TO REQUIRE SIGNED CONTRACTS.  SEE FIRST ANNUAL
REPORT, NATIONAL MEDIATION BOARD (1935), PP. 1-2, 36. 

THE NATIONAL LABOR BOARD, CREATED TO ADMINISTER SEC. 7(A) OF THE
NATIONAL INDUSTRIAL RECOVERY ACT, 48 STAT. 195, HELD THAT THE DUTY TO
BARGAIN COLLECTIVELY IMPOSED BY THAT SECTION INCLUDED AN OBLIGATION TO
EMBODY AGREED TERMS IN A SIGNED TRADE AGREEMENT.  SEE, MATTER OF
HARRIMAN HOSIERY MILLS, 1 N.L.B. 68; MATTER OF PIERSON MFG. CO., 1
N.L.B. 53; MATTER OF NATIONAL ANILINE & CHEMICAL CO., 2 N.L.B. 38;
MATTER OF CONNECTICUT COKE CO., 2 N.L.B. 88.  SEE, ALSO, MATTER OF
WHITTIER MILLS CO., TEXTILE LABOR RELATIONS BOARD, CASE NO. 34.  ITS
SUCCESSOR, THE FIRST NATIONAL LABOR RELATIONS BOARD DID LIKEWISE.  SEE,
MATTER OF HOUDE ENGINEERING CO., 1 N.L.R.B. (OLD) 35; MATTER OF DENVER
TOWEL SUPPLY CO., 2 N.L.R.B. (OLD) 221; MATTER OF COLT'S PATENT FIRE
ARMS CO., 2 N.L.R.B. (OLD) 155. 

FN5  BETHLEHEM SHIPBUILDING CORP. V. NATIONAL LABOR RELATIONS BOARD,
114 F.2D 930(C.C.A. 1ST); ART METALS CONSTRUCTION CO. V. NATIONAL LABOR
RELATIONS BOARD, 110 F.2D 148(C.C.A.2D); NATIONAL LABOR RELATIONS BOARD
V. HIGHLAND PARK MFG. CO., 110 F.2D 632(C.C.A.4TH); WILSON & CO., INC.
V. NATIONAL LABOR RELATIONS BOARD, 115 F.2D 759(C.C.A.8TH); CONTINENTAL
OIL CO. V. NATIONAL LABOR RELATIONS BOARD, 113 F.2D 473(C.C.A. 10TH). 
CONTRA, INLAND STEEL CO. V. NATIONAL LABOR RELATIONS BOARD, 109 F.2D
9(C.C.A.7TH); FORT WAYNE CORRUGATED PAPER CO. V. NATIONAL LABOR
RELATIONS BOARD, 111 F.2D 869(C.C.A.7TH). 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :





MCCLAIN V. COMMISSIONER, 311 U.S. 527 


NO. 55.  ARGUED DECEMBER 12, 1940.  - DECIDED JANUARY 6, 1941.  - 110
F.2D 878, AFFIRMED.  - 108 F.2D 642, REVERSED. 


1.  LOSSES SUSTAINED BY HOLDERS OF CORPORATE AND MUNICIPAL BONDS UPON
THEIR SURRENDER FOR CASH TO THE OBLIGORS, HELD DEDUCTIBLE, IN COMPUTING
TAXABLE INCOME UNDER THE REVENUE ACT OF 1934, ONLY TO THE LIMITED
EXTENT PROVIDED BY SEC. 117(D), RELATING TO LOSSES FROM SALES OR
EXCHANGES OF CAPITAL ASSETS, AND NOT IN FULL AS BAD DEBTS UNDER SEC.
23(K).  THE AMOUNTS RECEIVED IN SUCH TRANSACTIONS ARE AMOUNTS RECEIVED
UPON THE "RETIREMENT" OF THE BONDS, WITHIN THE MEANING OF SEC. 117(F). 
P. 529. 

2.  IN COMMON UNDERSTANDING AND ACCORDING TO DICTIONARY DEFINITION
THE WORD "RETIREMENT" IS BROADER IN MEANING THAN THE WORD
"REDEMPTION."  P. 530. 

3.  THE CORRECTION OF INCONSISTENCIES AND INEQUALITIES IN THE
OPERATION OF A STATUTE OF THE UNITED STATES IS FOR CONGRESS AND NOT THE
COURTS.  P. 530. 

MCCLAIN V. COMMISSIONER OF INTERNAL REVENUE.* 

*TOGETHER WITH NO. 58, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. THOMSON, EXECUTRIX, ON WRIT OF CERTIORARI, 310 U.S. 620, TO THE
CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 310 U.S. 620, TO REVIEW JUDGMENTS WHICH, IN NO. 55
AFFIRMED, AND IN NO. 58 REVERSED, ORDERS OF THE BOARD OF TAX APPEALS
SUSTAINING THE COMMISSIONER'S DISALLOWANCE OF DEDUCTIONS IN INCOME TAX
RETURNS.  SEE 40 B.T.A. 60. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT THE QUESTION WHETHER UPON THE SURRENDER OF BONDS
OR DEBENTURES IN EXCHANGE FOR A MONEY PAYMENT LESS THAN COST, A
TAXPAYER MAY DEDUCT THE LOSS FROM HIS GROSS INCOME AS A BAD DEBT UNDER
SEC. 23(K)  FN1  OR MUST TREAT IT AS A CAPITAL LOSS UNDER SEC. 117(F)
FN2  OF THE REVENUE ACT OF 1934. 

IN NUMBER 55 IT APPEARS THAT THE TAXPAYER OWNED $15,000 PAR VALUE OF
BONDS OF A WATER DISTRICT, ACQUIRED BY GIFT.  THE DISTRICT BEING IN
FINANCIAL DIFFICULTIES OFFERED TO PAY $7,476.75 FOR THEM.  THE OFFER
WAS ACCEPTED AND THE BONDS DELIVERED.  IN HIS TAX RETURN THE TAXPAYER
CLAIMED A DEDUCTION OF $7,523.25 AS FOR A BAD DEBT CHARGED OFF.  THE
COMMISSIONER DISALLOWED THE DEDUCTION, AND THE BOARD OF TAX APPEALS AND
THE CIRCUIT COURT OF APPEALS  FN3  SUSTAINED HIS RULING. 

IN NUMBER 58 THE FACTS ARE THAT THE TAXPAYER BOUGHT $25,000 PAR VALUE
OF DEBENTURES FOR $24,750.  THE ISSUER'S AFFAIRS WERE PLACED IN THE
HANDS OF A RECEIVER.  A PLAN OF REORGANIZATION PROVIDED THAT THE
RECEIVER SHOULD PAY $5.00 FOR EACH $1000 DEBENTURE SURRENDERED FOR
CANCELLATION.  THE TAXPAYER AVAILED HIMSELF OF THIS PROVISION, AND IN
HIS TAX RETURN CLAIMED A DEDUCTION OF $24,625, AS FOR A BAD DEBT.  THE
COMMISSIONER DISALLOWED THE CLAIM, AND THE BOARD OF TAX APPEALS
AFFIRMED HIS DECISION.  THE CIRCUIT COURT OF APPEALS REVERSED.  FN4 

BY REASON OF THE CONFLICT OF DECISION WE GRANTED CERTIORARI IN BOTH
CASES. 

THE EARLIER REVENUE ACTS CONTAINED SECTIONS SIMILAR TO 23(K) OF THE
ACT OF 1934.  THEY ALSO EMBODIED PROVISIONS FOR CALCULATION OF TAXES ON
CAPITAL NET GAINS.  NONE OF THEM INCLUDED ANY SECTION LIKE 117(F). 
PRIOR TO THE ADOPTION OF THE 1934 ACT IT HAD BEEN HELD THAT THE PHRASE
"SALE OR EXCHANGE" OF CAPITAL ASSETS, EMPLOYED IN THOSE ACTS, WAS NOT
DESCRIPTIVE OF THE REDEMPTION OR CALL FOR REPAYMENT OF CORPORATE
SECURITIES, AND HENCE GAIN THEREBY OCCASIONED WAS TO BE TREATED AS
ORDINARY INCOME, FN5  AND LOSS SO ARISING WAS TO BE DEDUCTED FROM GROSS
INCOME AS A BAD DEBT.  FN6 

THE REVENUE ACT OF 1934, BY SUB-SECTION (F) OF SEC. 117, PROVIDED
THAT FOR THE PURPOSES OF THE TITLE DEALING WITH CAPITAL GAINS AND
LOSSES, "AMOUNTS RECEIVED BY THE HOLDER UPON THE RETIREMENT" OF SUCH
SECURITIES AS ARE HERE INVOLVED, "SHALL BE CONSIDERED AS AMOUNTS
RECEIVED IN EXCHANGE THEREFOR." 

IT IS PLAIN THAT CONGRESS INTENDED BY THE NEW SUBSECTION (F) TO TAKE
OUT OF THE BAD DEBT PROVISION CERTAIN TRANSACTIONS AND TO PLACE THEM IN
THE CATEGORY OF CAPITAL GAINS AND LOSSES.  THE QUESTION IS WHETHER BY
EMPLOYING THE WORD "RETIREMENT" THE TRANSACTIONS HERE INVOLVED WERE SO
TRANSFERRED.  WE HOLD THAT THEY WERE. 

"RETIREMENT" APTLY DESCRIBES WHAT OCCURRED IN THE INSTANT CASES.  THE
STATUTE DOES NOT USE THE WORD IN AN UNUSUAL OR ARTIFICIAL SENSE.  IN
COMMON UNDERSTANDING AND ACCORDING TO DICTIONARY DEFINITION THE WORD
"RETIREMENT" IS BROADER IN SCOPE THAN "REDEMPTION"; IS NOT, AS
CONTENDED, SYNONYMOUS WITH THE LATTER, BUT INCLUDES IT.  NOTHING IN THE
LEGISLATIVE HISTORY OF THE PROVISION REQUIRES US TO ATTRIBUTE TO THE
TERM USED A MEANING NARROWER THAN ITS ACCEPTED MEANING IN COMMON
SPEECH. 

THE TAXPAYER IN NUMBER 58 URGES THAT TO HOLD SUBSECTION (F)
APPLICABLE IN HIS CASE WOULD GIVE THE PROVISION AN UNJUST EFFECT,
SINCE, IF HE HAD REFUSED TO SURRENDER HIS DEBENTURES FOR THE TRIFLING
CONSIDERATION OFFERED, HE COULD HAVE CHARGED OFF THEIR WHOLE COST AS A
BAD DEBT UNDER SEC. 23(K).  THE ANSWER IS THAT WE MUST APPLY THE
STATUTE AS WE FIND IT, LEAVING TO CONGRESS THE CORRECTION OF ASSERTED
INCONSISTENCIES AND INEQUALITIES IN ITS OPERATION. 

THE COURT BELOW HELD IN NUMBER 58 THAT THE PHRASE "RETIREMENT" COULD
PROPERLY BE APPLIED ONLY TO VOLUNTARY ACTION ON THE DEBTOR'S PART IN
FULFILMENT OF HIS PROMISE TO PAY.  THIS IS BUT TO SAY THAT RETIREMENT
MEANS NO MORE THAN CALL AND REDEMPTION PURSUANT TO THE TERMS OF THE
OBLIGATION.  BUT AS WE HAVE SAID, THE TWO ARE NOT IN COMMON
UNDERSTANDING THE SAME. 

THE JUDGMENT IN NUMBER 55 IS AFFIRMED, AND THAT IN NUMBER 58 IS
REVERSED.  NO. 55, AFFIRMED.  NO. 58, REVERSED. 

FN1  48 STAT. 689; 26 U.S.C. SEC. 23(K). 

FN2  48 STAT. 715; 26 U.S.C. SEC. 117(F). 

FN3  110 F.2D 878. 

FN4  108 F.2D 642. 

FN5  WATSON V. COMMISSIONER, 27 B.T.A. 463; BRAUN V. COMMISSIONER, 29
B.T.A. 1161.  THIS VIEW WAS ADOPTED BY THIS COURT AS RESPECTS THE
REVENUE ACT OF 1928, SUBSEQUENT TO THE ADOPTION OF THE ACT OF 1934. 
FAIRBANKS V. UNITED STATES, 306 U.S. 436. 

FN6  COMMONWEALTH BANK V. LUCAS, 59 APP. D.C. 317; 41 F.2D 111;
LEBANON NATIONAL BANK V. COMMISSIONER, 76 F.2D 792; PACIFIC NATIONAL
BANK V. COMMISSIONER, 91 F.2D 103. 
..END :











VOELLER V. NEILSTON CO., 311 U.S. 531 


NO. 97.  SUBMITTED DECEMBER 18, 1940.  - DECIDED JANUARY 6, 1941.  - 136
OHIO ST. 427 - 26 N.E.2D 442, REVERSED. 


A STATE STATUTE PROVIDING THAT, WHERE A CORPORATION AUTHORIZES THE
SALE OR OTHER DISPOSITION OF ALL OR SUBSTANTIALLY ALL OF ITS ASSETS, A
DISSENTING SHAREHOLDER SHALL HAVE THE RIGHT TO BE PAID THE FAIR CASH
VALUE OF HIS SHARES, AND THAT THE AMOUNT DEMANDED OF THE CORPORATION BY
THE DISSENTING SHAREHOLDER AS SUCH FAIR CASH VALUE SHALL, AFTER SIX
MONTHS,  - IF THE CORPORATION DOES NOT MAKE A COUNTER-OFFER, REQUEST AN
APPRAISAL, OR ABANDON THE SALE - "CONCLUSIVELY BE DEEMED TO BE EQUAL
TO" THE FAIR CASH VALUE, HELD, IN ITS OPERATION AS TO MAJORITY
STOCKHOLDERS, NOT A DEPRIVATION OF THEIR PROPERTY WITHOUT DUE PROCESS
IN VIOLATION OF THE FOURTEENTH AMENDMENT, ALTHOUGH THE STATUTE MADE NO
PROVISION FOR NOTICE TO THEM AS INDIVIDUALS, OR OPPORTUNITY FOR THEM TO
BE HEARD, IN RESPECT TO THE DISSENTING STOCKHOLDER'S DEMAND.  P. 535. 

THE CORPORATION SUFFICIENTLY REPRESENTS THE MAJORITY STOCKHOLDERS,
FOR THE PURPOSES OF NOTICE AND OF INVOKING THE JURISDICTION OF THIS
COURT ON THE CONSTITUTIONAL QUESTION.  P. 537. 

VOELLER ET AL. V. NEILSTON WAREHOUSE CO. ET AL. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

CERTIORARI, POST, P. 624, TO REVIEW A JUDGMENT DENYING RECOVERY TO
MINORITY STOCKHOLDERS UPON A STATE STATUTE HELD UNCONSTITUTIONAL. 

MR. FRANCIS J. WRIGHT SUBMITTED FOR RESPONDENTS. 

A STATUTE CREATING A PRESUMPTION WHICH OPERATES TO DENY A FAIR
OPPORTUNITY TO REBUT IT DEPRIVES OF DUE PROCESS.  HEINER V. DONNAN, 285
U.S. 312, 329; SCHLESINGER V. WISCONSIN, 270 U.S. 230; BAILEY V.
ALABAMA, 219 U.S. 219.  SO IN THE CASE EVEN OF PRIMA FACIE
PRESUMPTIONS.  MANLEY V. GEORGIA, 279 U.S. 1; WESTERN & ATLANTIC
RAILROAD V. HENDERSON, 279 U.S. 639. 

THE CONTROVERSY HERE IS BETWEEN TWO CLASSES OR GROUPS OF
SHAREHOLDERS, DISSENTING AND NON-DISSENTING; AND ONLY THEIR INDIVIDUAL
RIGHTS ARE INVOLVED.  GEIGER V. AMERICAN SEEDING MACHINE CO., 124 OHIO
ST. 222.  THE CORPORATION, BEING IN LIQUIDATION, WAS A MERE STAKEHOLDER
FOR THE SHAREHOLDERS. 

THE MAJORITY SHAREHOLDERS, THOUGH THEY VOTED IN FAVOR OF THE SALE AND
KNEW THAT CERTAIN VOTES WERE CAST AGAINST IT, WERE NOT CHARGED WITH
NOTICE OF FURTHER PROCEEDINGS TAKEN PURSUANT TO SEC. 8623-72.  SECTION
8623-65 AND SEC. 8623-72 ARE SEPARATE AND DISTINCT; THE FORMER DEALS
WITH CORPORATE ACTION TAKEN BY SHAREHOLDERS, THE LATTER WITH THE RIGHTS
OF SHAREHOLDERS.  MERELY BECAUSE CERTAIN SHAREHOLDERS DISSENTED TO
CERTAIN CORPORATE ACTION, IT DOES NOT FOLLOW THAT THEY WILL FILE
DEMANDS UNDER SEC. 8623-72; OR THAT, IF FILED, THE DEMANDS WILL BE
REJECTED. 

THE MAJORITY SHAREHOLDERS, THOUGH THEY KNEW OF THE AUTHORIZATION OF
THE SALE, WERE NOT BOUND TO KEEP THEMSELVES ADVISED AS TO FURTHER
PROCEEDINGS BY THE DISSENTERS. 

IT IS ELEMENTARY THAT THE BOARD OF DIRECTORS IS NOT THE
REPRESENTATIVE OF THE SHAREHOLDERS AS RESPECTS THEIR INDIVIDUAL RIGHTS
BUT ONLY IN CORPORATE MATTERS.  ESPECIALLY IS THIS SO WHEN THE
CORPORATION IS IN LIQUIDATION AND NOTHING REMAINS TO BE DONE EXCEPT
DISTRIBUTE THE ASSETS TO THE SHAREHOLDERS.  ONLY THEY, AND AS
INDIVIDUALS, ARE INTERESTED IN THE METHOD OF DISTRIBUTION.  SINCE ONLY
THE INDIVIDUAL RIGHTS OF SHAREHOLDERS INTER SE WERE INVOLVED, THEY WERE
THEMSELVES ENTITLED TO NOTICE.  NOTICE TO THE CORPORATION WAS NOT
NOTICE TO THE SHAREHOLDERS. 

EVEN IF IT BE ASSUMED THAT THEY HAD NOTICE, THE MAJORITY STOCKHOLDERS
STILL WERE POWERLESS TO ACT AND WITHOUT OPPORTUNITY TO BE HEARD. 

THE SUPREME COURT OF OHIO HAS HELD THAT SUGGESTED PROCEDURE BY
SHAREHOLDERS IN BEHALF OF THE CORPORATION WAS NOT AVAILABLE TO THE
MAJORITY SHAREHOLDERS, AND THAT THEY HAD NO STANDING TO MAINTAIN SUCH
AN ACTION.  THIS IS A DECISION ON THE PROCEDURAL LAW OF OHIO WHICH WILL
BE ACCEPTED BY THIS COURT.  MOREOVER, THE STATE COURT HAS HELD THAT
MAJORITY SHAREHOLDERS CAN NOT MAINTAIN AN ACTION THE OBJECT OF WHICH IS
TO HAVE THE FAIR CASH VALUE OF DISSENTERS' SHARES DETERMINED, THIS
BEING LIMITED BY THE STATUTE TO THE CORPORATION AND THE DISSENTERS. 
THIS ALSO IS A PURELY PROCEDURAL MATTER GOVERNED SOLELY BY THE LAW OF
OHIO. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE TO REVIEW A DECISION OF THE
SUPREME COURT OF OHIO INVALIDATING A STATE STATUTE ON THE GROUND THAT
IT CONSTITUTED A DENIAL OF PROCEDURAL DUE PROCESS GUARANTEED BY THE
FOURTEENTH AMENDMENT.  FN1  THE STATUTE IN QUESTION PROVIDED THAT THE
VALUE PLACED UPON HIS STOCK BY A DISSENTING SHAREHOLDER SHOULD, AFTER
SIX MONTHS AND UNDER CERTAIN CIRCUMSTANCES, "CONCLUSIVELY BE DEEMED TO
BE EQUAL TO" THE FAIR CASH VALUE.  FN2  THE STATE COURT HELD THAT SINCE
THE STATUTE REQUIRED THAT THE DEMANDS OF THE DISSENTERS BE MADE KNOWN
ONLY TO THE CORPORATION, THE MAJORITY SHAREHOLDERS WERE
UNCONSTITUTIONALLY DEPRIVED OF PROPERTY WITHOUT NOTICE AND AN
OPPORTUNITY TO BE HEARD. 

CONCRETELY, THE QUESTION WAS RAISED HERE IN THE FOLLOWING MANNER:
PETITIONERS, HOLDERS OF STOCK IN RESPONDENT CORPORATION, WERE AMONG
THOSE WHO DISSENTED WHEN A VOTE WAS CALLED ON A SALE OF SUBSTANTIALLY
ALL THE CORPORATE ASSETS.  TWO-THIRDS OF THE SHAREHOLDERS VOTED FOR THE
SALE, WHICH WAS THEREUPON CONSUMMATED.  PETITIONERS GAVE WRITTEN NOTICE
TO THE CORPORATION OF THEIR OBJECTION, THE NUMBER OF SHARES THEY HELD,
AND THE CLAIMED FAIR CASH VALUE OF THEIR STOCK.  THE CORPORATION
REFUSED IN WRITING TO PAY THE AMOUNT ASKED, BUT MADE NO COUNTER-OFFER. 
NEITHER PARTY FILED A PETITION FOR APPRAISAL.  AFTER SIX MONTHS HAD
ELAPSED, PETITIONERS FILED SUIT IN THE COURT OF COMMON PLEAS, ASKING
THAT JUDGMENT BE RENDERED IN THEIR FAVOR FOR THE AMOUNTS ORIGINALLY
CLAIMED. 

ALL OF THESE PROCEEDINGS WERE IN ACCORDANCE WITH THE APPLICABLE OHIO
LAW.  FN3  IN THEIR SUIT, PETITIONERS RELIED ON A SECTION OF THAT LAW
WHICH PROVIDED THAT THE VALUE CLAIMED BY THE DISSENTING SHAREHOLDERS
SHOULD "CONCLUSIVELY BE DEEMED TO BE EQUAL TO" FAIR CASH VALUE IF THE
CORPORATION HAD NEITHER MADE A COUNTER-OFFER NOR REQUESTED AN
APPRAISAL.  FN4  ONE OF THE MAJORITY SHAREHOLDERS FILED AN INTERVENING
PETITION ON BEHALF OF HERSELF AND ALL OTHER SHAREHOLDERS SIMILARLY
SITUATED, ALLEGING THAT THE SECTION OF THE STATUTE INVOLVED WAS
UNCONSTITUTIONAL.  A JUDGE OF THE COURT OF COMMON PLEAS STRUCK OUT THIS
INTERVENTION AT THE REQUEST OF PETITIONERS, SAYING THAT THE STATUTE WAS
CONSTITUTIONAL, THE PETITION FOR INTERVENTION IRRELEVANT, AND THE
MAJORITY SHAREHOLDERS WITHOUT STANDING TO INTERVENE.  FN5  NO APPEAL
WAS TAKEN FROM THIS RULING.  WHEN THE CASE CAME ON FOR TRIAL ON THE
MERITS, A DIFFERENT JUDGE SAT, AND IT WAS HIS OPINION THAT THE STATUTE
WAS UNCONSTITUTIONAL.  THE COURT OF APPEALS, ONE JUDGE DISSENTING,
REVERSED THE TRIAL COURT, AND WAS ITSELF REVERSED, TWO JUDGES
DISSENTING, BY THE SUPREME COURT OF OHIO. 

IT WAS THE OPINION OF THE SUPREME COURT THAT THE STATUTE HAD "AN
UNCONSTITUTIONAL OPERATION AGAINST THE MAJORITY STOCKHOLDERS, AS BEING
VIOLATIVE OF THE DUE PROCESS SECTION OF THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION."  AND THE CORRECTNESS OF THAT CONCLUSION IS THE
ONLY QUESTION PROPERLY BEFORE THIS COURT.  ALL OTHER QUESTIONS
PRESENTED INVOLVE STATE LAW, FOR THE CONDITIONS UNDER WHICH
CORPORATIONS SHALL ORGANIZE AND OPERATE ARE MATTERS WITHIN THE
EXCLUSIVE PROVINCE OF THE STATE, SO LONG AS THOSE CONDITIONS DO NOT
CLASH WITH THE NATIONAL CONSTITUTION. 

WE AGREE WITH PETITIONER'S POSITION THAT NOTICE TO THE CORPORATION OF
THE DEMAND FOR PAYMENT CONSTITUTED NOTICE TO THE MAJORITY STOCKHOLDERS,
AND THAT SUCH NOTICE WAS AN ADEQUATE COMPLIANCE WITH THE CONSTITUTIONAL
REQUIREMENT OF DUE PROCESS.  THE OBJECTIVE OF THE OHIO STATUTE
PERMITTING THE RIGHT OF APPRAISAL TO DISSENTING SHAREHOLDERS WAS THE
ELIMINATION OF ABUSES THAT HAD LONG BEEN A FIXTURE IN THE FIELD OF
CORPORATE FINANCE.  FN6  TO ASSURE THAT THE RIGHT TO APPRAISAL WOULD BE
PROMPTLY RESORTED TO AND TO PROVIDE FOR THE CONTINGENCY THAT IN SOME
CASES NO SUCH RESORT WOULD BE TAKEN, THE OHIO LEGISLATURE THOUGHT IT
ADVISABLE TO PROVIDE THAT UNDER SOME CIRCUMSTANCES THE ORIGINAL OFFER
OR COUNTER-OFFER SHOULD CONCLUSIVELY BE DEEMED EQUAL TO THE FAIR CASH
VALUE.  THE CORPORATION WAS GIVEN THE RIGHT TO AVOID THE EFFECT OF
BEING COMPELLED TO PAY THE CLAIMED VALUE EITHER BY MAKING A COUNTER
OFFER OR BY REQUESTING AN APPRAISAL.  IN ADDITION, IT WAS GIVEN THE
RIGHT TO AVOID BOTH APPRAISAL AND PAYMENT OF THE CLAIMED VALUE BY
ABANDONING ITS ORIGINAL PURPOSE TO SELL ITS ASSETS.  THE DISSENTING
SHAREHOLDERS COULD, BY REQUESTING AN APPRAISAL, LIKEWISE AVOID
ACCEPTING THE CORPORATION'S COUNTER-OFFER.  THUS THE CORPORATION IS
COMPELLED TO PAY OR THE DISSENTING SHAREHOLDER TO ACCEPT PAYMENT OF THE
AMOUNT OF THE OFFER OR COUNTER-OFFER ONLY IF NONE OF THE MANY AVAILABLE
ALTERNATIVES ARE PURSUED BEFORE THE EXPIRATION OF A SIX-MONTH PERIOD. 
THE PROVISIONS, IN EFFECT, OPERATE AS STATUTES OF LIMITATIONS.  AFTER
THE LAPSE OF A PERIOD OF TIME, GIVEN DEFENSES - ATTACKS ON VALUE - CAN
NO LONGER BE ASSERTED. 

IT IS TRUE, AS RESPONDENT URGES, THAT AFTER THE MAJORITY AUTHORIZES
THE CORPORATION TO EFFECT A SALE, THE ALTERNATIVES ARE THEREAFTER
EXPRESSLY OPEN ONLY TO THE CORPORATION AND THE DISSENTERS; NO PROVISION
IS MADE FOR NOTICE TO THE MAJORITY SHAREHOLDERS AS INDIVIDUALS.  BUT
THE MAJORITY, BY THEIR VOTE APPROVING THE SALE OF ASSETS, HAVE
INDICATED THEIR INTENTION TO REMAIN PART AND PARCEL OF THE CORPORATION;
THE DISSENTERS, ON THE OTHER HAND, BY VOTING AGAINST THE SALE AND BY
DEMANDING PAYMENT, HAVE INDICATED AN INTENTION TO SEVER RELATIONSHIPS. 
IF THEREAFTER THE FAILURE OF THE DIRECTORS TO MAKE A COUNTER-OFFER
MATERIALLY PREJUDICES THE FINANCIAL STAKE OF THE MAJORITY, IT IS NO
MORE A WANT OF DUE PROCESS TO CONSIDER THE MAJORITY BOUND THEREBY THAN
IT IS TO CONSIDER THEM BOUND BY ANY OTHER ACT OF MANAGEMENT.  THE
MAJORITY ARE PARTICIPANTS IN A CORPORATE ENTERPRISE.  IN ENTRUSTING
THEIR CAPITAL TO THE CORPORATION, THEY ACCEPT THE DISADVANTAGES OF THE
CORPORATE SYSTEM ALONG WITH ITS ADVANTAGES.  WHAT IS CLAIMED TO BE A
DISADVANTAGE HERE IS A NECESSARY CONCOMITANT OF THE SYSTEM AND ITS MOST
DISTINCTIVE ATTRIBUTE - REPRESENTATION OF THE COLLECTIVE INTEREST OF
SHAREHOLDERS BY SELECTED CORPORATE MANAGEMENT. 

THE CONSTITUTIONAL ISSUE IS HERE RAISED FOR THE MAJORITY SHAREHOLDERS
BY THE CORPORATION, WHICH ADMITTEDLY ITSELF HAD NOTICE.  EXERCISING THE
VERY DELICATE RESPONSIBILITY OF PASSING UPON THE VALIDITY OF STATE
STATUTES, THIS COURT HAS MANY TIMES DECLARED THE RULE THAT ONLY THOSE
WHO HAVE BEEN INJURED AS THE RESULT OF THE DENIAL OF CONSTITUTIONAL
RIGHTS CAN INVOKE OUR JURISDICTION ON CONSTITUTIONAL QUESTIONS.  FN7
YET HERE THE CORPORATION WOULD HAVE US SAY THAT IT IS SUFFICIENTLY THE
REPRESENTATIVE OF THE MAJORITY TO RAISE IN THEIR BEHALF THE
CONSTITUTIONAL ISSUE, BUT NOT SUFFICIENTLY THEIR REPRESENTATIVE TO
RECEIVE NOTICE.  WE HOLD THAT, SO FAR AS THE CONSTITUTIONAL REQUIREMENT
OF DUE PROCESS IS CONCERNED, IT IS IN THIS CASE SUFFICIENTLY THEIR
REPRESENTATIVE FOR BOTH PURPOSES, AND ACCORDINGLY WE FIND IT NECESSARY
TO REVERSE THE JUDGMENT BELOW.  FN8 

THERE IS NOTHING UNUSUAL IN SUCH A HOLDING; THE RIGHTS OF PARTIES ARE
HABITUALLY PROTECTED IN COURT BY THOSE WHO ACT IN A REPRESENTATIVE
CAPACITY; AN EXECUTOR OR ADMINISTRATOR MAY ACT FOR THE BENEFICIARIES OF
AN ESTATE; A RECEIVER MAY REPRESENT THE COLLECTIVE INTERESTS OF
STOCKHOLDERS, PARTNERS, OR CREDITORS; A LAWYER MAY APPEAR FOR HIS
CLIENTS; AND A CORPORATION MAY REPRESENT THE COLLECTIVE INTERESTS OF
ITS SHAREHOLDERS.  IN THIS CASE, IN FACT, THE UNAPPEALED RULING OF THE
TRIAL JUDGE ON THE ATTEMPTED INTERVENTION BY THE MAJORITY STANDS AS AN
ADJUDICATION THAT IN THOSE RESPECTS HERE MATERIAL THE MAJORITY HAD
COMMITTED THEIR INTERESTS TO THE CORPORATION ITSELF.  REVERSED. 

FN1  136 OHIO STATE 427, 26 N.E.2D 442. 

FN2  OHIO CODE ANN. (THROCKMORTON, 1940) SEC. 8623-72, PARAGRAPH 7. 

FN3  OHIO CODE ANN. (THROCKMORTON, 1940) SECS. 8623-65, 8623-72. 

FN4  THE EXACT LANGUAGE IS:  "IF SUCH PETITION (FOR APPRAISAL) IS NOT
FILED WITHIN SUCH PERIOD, THE FAIR CASH VALUE OF THE SHARES SHALL
CONCLUSIVELY BE DEEMED TO BE EQUAL TO THE AMOUNT OFFERED TO THE
DISSENTING SHAREHOLDER BY THE CORPORATION IF ANY SUCH OFFER SHALL HAVE
BEEN MADE BY IT AS ABOVE PROVIDED, OR IN THE ABSENCE THEREOF, THEN AN
AMOUNT EQUAL TO THAT DEMANDED BY THE DISSENTING SHAREHOLDER AS ABOVE
PROVIDED." 

FN5  THE JUDGE SAID:  "THE FAILURE TO TAKE ADVANTAGE OF THE STATUTORY
PROVISIONS MAY RESULT UNFORTUNATELY FOR OTHER STOCKHOLDERS, BUT THEIR
REMEDY WOULD BE AGAINST THOSE DIRECTORS WHO WERE DERELICT IN THEIR
DUTY." 

FN6  AT COMMON LAW, UNANIMOUS SHAREHOLDER CONSENT WAS A PREREQUISITE
TO FUNDAMENTAL CHANGES IN THE CORPORATION.  THIS MADE IT POSSIBLE FOR
AN ARBITRARY MINORITY TO ESTABLISH A NUISANCE VALUE FOR ITS SHARES BY
REFUSAL TO COOPERATE.  TO MEET THE SITUATION, LEGISLATURES AUTHORIZED
THE MAKING OF CHANGES BY MAJORITY VOTE.  THIS, HOWEVER, OPENED THE DOOR
TO VICTIMIZATION OF THE MINORITY.  TO SOLVE THE DILEMMA, STATUTES
PERMITTING A DISSENTING MINORITY TO RECOVER THE APPRAISED VALUE OF ITS
SHARES, WERE WIDELY ADOPTED.  SEE S.E.C. REPORT ON THE WORK OF
PROTECTIVE AND REORGANIZATION COMMITTEES, PART VII, PP. 557, 590.  THE
OHIO APPRAISAL STATUTE HERE IN ISSUE WAS NOT ADOPTED UNTIL AFTER
RESPONDENT HAD ACQUIRED ITS CHARTER, BUT THE OHIO CONSTITUTION
EXPRESSLY RESERVES TO THE STATE THE RIGHT TO ALTER OR REPEAL THE
CORPORATE LAW.  OHIO CONST., ART. 13, SEC. 2. 

FN7  TYLER V. JUDGES, 179 U.S. 405; HENDRICK V. MARYLAND, 235 U.S.
610, 621.  AND SEE MR. JUSTICE BRANDEIS, CONCURRING, IN ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 347-348, AND CASES THERE
CITED. 

FN8  CHRISTOPHER V. BRUSSELBACK, 302 U.S. 500, 504; CF. KERSH LAKE
DRAINAGE DISTRICT V. JOHNSON, 309 U.S. 485, 491. 
..END :



VANDENBARK V. OWENS-ILLINOIS CO., 311 U.S. 538 


NO. 141.  ARGUED DECEMBER 13, 1940.  - DECIDED JANUARY 6, 1941.  - 110
F.2D 310, REVERSED. 


A JUDGMENT OF A DISTRICT COURT, RULED BY THE STATE LAW AND CORRECTLY
APPLYING THAT LAW AS INTERPRETED BY THE STATE SUPREME COURT WHEN THE
JUDGMENT WAS RENDERED, MUST BE REVERSED, ON APPEAL, IF IN THE MEANTIME
THE STATE COURT HAS DISAPPROVED OF ITS FORMER RULINGS AND ADOPTED A
CONTRARY INTERPRETATION.  P. 541. 

VANDENBARK V. OWENS-ILLINOIS GLASS CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 635, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING AN ACTION FOR DAMAGES ON ACCOUNT OF PERSONAL INJURIES
ALLEGED TO HAVE BEEN CAUSED BY THE NEGLIGENCE OF THE DEFENDANT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI BRINGS BEFORE US FOR REVIEW THE DETERMINATION OF THE
CIRCUIT COURT OF APPEALS THAT CASES AT LAW SOUNDING IN TORT, BROUGHT IN
THE FEDERAL COURTS ON THE GROUND OF DIVERSITY OF CITIZENSHIP, ARE RULED
BY THE STATE LAW AS DECLARED BY THE STATE'S HIGHEST COURT WHEN THE
JUDGMENT OF THE TRIAL COURT IS ENTERED AND NOT BY THE STATE LAW AS SO
DECLARED AT THE TIME OF ENTRY OF THE APPELLATE COURT'S ORDER OF
AFFIRMANCE OR REVERSAL.  WE GRANTED THE CERTIORARI BECAUSE OF THE
UNCERTAINTY OF THE LAW UPON THIS QUESTION AS CONTAINED IN THIS COURT'S
FORMER DECISIONS. 

THE PETITIONER HERE, VIRGINIA VANDENBARK, THE PLAINTIFF BELOW, IS A
CITIZEN OF ARIZONA.  THE DEFENDANT, RESPONDENT HERE, THE OWENS-ILLINOIS
GLASS COMPANY, IS A CORPORATION OF OHIO.  PETITIONER BROUGHT AN ACTION
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
ALLEGING THAT AS AN EMPLOYEE OF RESPONDENT SHE HAD CONTRACTED VARIOUS
OCCUPATIONAL DISEASES INCLUDING SILICOSIS THROUGH THE NEGLIGENCE OF
RESPONDENT.  THE TRIAL COURT SUSTAINED A MOTION TO DISMISS ON THE
GROUND THAT THE PETITION FAILED TO STATE A CAUSE OF ACTION.  THIS
RULING WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS WITH THE STATEMENT
THAT UNDER THE LAW OF OHIO NO RECOVERY WAS PERMITTED, AT THE TIME OF
THE JUDGMENT IN THE TRIAL COURT, FOR THE TYPE OF OCCUPATIONAL DISEASE
ALLEGED BY THE PETITIONER TO HAVE BEEN CONTRACTED BY HER AS THE RESULT
OF RESPONDENT'S NEGLIGENCE.  FN1 

IT IS CONCEDED THAT AT THE TIME THE MOTION TO DISMISS WAS SUSTAINED
NEITHER THE OHIO WORKMEN'S COMPENSATION ACT  FN2  NOR THE COMMON LAW,
AS INTERPRETED BY THE SUPREME COURT OF THAT STATE, GAVE A RIGHT OF
RECOVERY TO PETITIONER.  THE CONSTITUTION OF OHIO  FN3  AUTHORIZED THE
PASSING OF LAWS ESTABLISHING A STATE FUND OUT OF WHICH COMPENSATION FOR
DEATH INJURIES OR OCCUPATIONAL DISEASES WAS TO BE PAID EMPLOYEES IN
LIEU OF ALL OTHER RIGHTS TO COMPENSATION OR DAMAGES FROM ANY EMPLOYER
WHO COMPLIED WITH THE LAW.  AT THE TIME OF THE DISMISSAL OF THE
PETITION BY THE TRIAL COURT NO PROVISION HAD BEEN MADE BY STATUTE FOR
ANY OF THE OCCUPATIONAL DISEASES INCLUDED IN PETITIONER'S COMPLAINT. 
RESPONDENT HAD FULLY COMPLIED WITH THE WORKMEN'S COMPENSATION ACT.  THE
OHIO CONSTITUTION AND COMPENSATION STATUTES PASSED PURSUANT TO ITS
AUTHORITY HAD BEEN CONSISTENTLY CONSTRUED BY THE OHIO COURTS AS
WITHDRAWING THE COMMON LAW RIGHT AND AS DENYING ANY STATUTORY RIGHT TO
RECOVERY FOR PETITIONER'S OCCUPATIONAL DISEASES.  FN4  AFTER THE ACTION
OF THE TRIAL COURT IN DISMISSING THE PETITION, THE OHIO SUPREME COURT
REVERSED ITS FORMER DECISIONS AND, IN AN OPINION EXPRESSLY OVERRULING
THEM, DECLARED OCCUPATIONAL DISEASES SUCH AS COMPLAINED OF BY
PETITIONER COMPENSABLE UNDER OHIO COMMON LAW.  FN5 

WHILE ERIE R. CO. V. TOMPKINS  FN6  MADE THE LAW OF THE STATE, AS
DECLARED BY ITS HIGHEST COURT, EFFECTIVE TO GOVERN TORT CASES
COGNIZABLE IN FEDERAL COURTS ON THE SOLE GROUND OF DIVERSITY, THERE WAS
NO NECESSITY THERE FOR DISCUSSING AT WHAT STEP IN THE CAUSE THE STATE
LAW WOULD BE FINALLY DETERMINED.  IN THAT CASE NO CHANGE OCCURRED IN
THE STATE DECISIONS BETWEEN THE ACCIDENT AND OUR JUDGMENT.  THERE IS
NOTHING IN THE RULES OF DECISION SECTION TO POINT THE WAY TO A
SOLUTION.  FN7 

DURING THE PERIOD WHEN SWIFT V. TYSON  FN8  (1842-1938) RULED THE
DECISIONS OF THE FEDERAL COURTS, ITS THEORY OF THEIR FREEDOM IN MATTERS
OF GENERAL LAW FROM THE AUTHORITY OF STATE COURTS PERVADED OPINIONS OF
THIS COURT INVOLVING EVEN STATE STATUTES OR LOCAL LAW.  AS A
CONSEQUENCE SOME DECISIONS HOLD THAT A DIFFERENT INTERPRETATION OF
STATE LAW BY STATE COURTS AFTER A DECISION IN A FEDERAL TRIAL COURT
DOES NOT REQUIRE THE FEDERAL REVIEWING COURT TO REVERSE THE TRIAL
COURT.  FN9 

IN BURGESS V. SELIGMAN, CITED IN THE PRECEDING NOTE, A STATUTE OF
MISSOURI RELATING TO THE LIABILITY OF STOCKHOLDERS OF A MISSOURI
CORPORATION WAS INTERPRETED BY THE STATE SUPREME COURT CONTRARY TO THE
PRIOR DECISION OF THE FEDERAL TRIAL COURT.  THIS COURT AFFIRMED THE
TRIAL COURT, SAYING 

"SO WHEN CONTRACTS AND TRANSACTIONS HAVE BEEN ENTERED INTO, AND
RIGHTS HAVE ACCRUED THEREON UNDER A PARTICULAR STATE OF THE DECISIONS,
OR WHEN THERE HAS BEEN NO DECISION, OF THE STATE TRIBUNALS, THE FEDERAL
COURTS PROPERLY CLAIM THE RIGHT TO ADOPT THEIR OWN INTERPRETATION OF
THE LAW APPLICABLE TO THE CASE, ALTHOUGH A DIFFERENT INTERPRETATION MAY
BE ADOPTED BY THE STATE COURTS AFTER SUCH RIGHTS HAVE ACCRUED."  FN10 

WHAT WE CONCEIVE, HOWEVER, TO BE THE TRUE RULE TO GUIDE A FEDERAL
APPELLATE COURT WHERE THERE HAS BEEN A CHANGE OF DECISION IN STATE
COURTS SUBSEQUENT TO THE JUDGMENT OF THE DISTRICT COURT WAS STATED,
BEFORE ANY OF THE OPINIONS JUST CITED, IN UNITED STATES V. SCHOONER
PEGGY.  FN11  THE COURT THERE SAID 

"IT IS, IN THE GENERAL, TRUE, THAT THE PROVINCE OF AN APPELLATE COURT
IS ONLY TO ENQUIRE WHETHER A JUDGMENT WHEN RENDERED WAS ERRONEOUS OR
NOT.  BUT IF, SUBSEQUENT TO THE JUDGMENT, AND BEFORE THE DECISION OF
THE APPELLATE COURT, A LAW INTERVENES AND POSITIVELY CHANGES THE RULE
WHICH GOVERNS, THE LAW MUST BE OBEYED, OR ITS OBLIGATION DENIED."  IT
IS TRUE THIS COURT WAS SPEAKING OF THE INTERVENTION OF A TREATY AND
ALSO THAT IT EXPRESSED A CAUTION AGAINST RETROSPECTIVE OPERATION
BETWEEN PRIVATE PARTIES BUT THE PRINCIPLE QUOTED HAS FOUND ACCEPTANCE
IN A VARIETY OF SITUATIONS.  KIBBE V. DITTO  FN12  AND MOORES V.
NATIONAL BANK  FN13  HOLD THAT SUBSEQUENT DECISIONS AS TO MARRIED
WOMEN'S RIGHTS CONTROL REVIEW.  SIOUX COUNTY V. NATIONAL SURETY COMPANY
FN14  GIVES EFFECT TO A LATER DECISION ON A STATUTE AS TO SURETY
BONDS.  IN OKLAHOMA PACKING CO. V. OKLAHOMA GAS CO.,  FN15  WE APPLIED
AS DETERMINATIVE A STATE DECISION, CLARIFYING THE LOCAL LAW, HANDED
DOWN AFTER THE DECREE THEN UNDER CONSIDERATION HERE. 

WHILE CASES WERE PENDING HERE ON REVIEW, THIS COURT HAS ACTED TO GIVE
OPPORTUNITY FOR THE APPLICATION BY THE LOWER COURTS OF STATUTES ENACTED
AFTER THEIR JUDGMENTS OR DECREES.  FN16  IT HAS VACATED JUDGMENTS OF
STATE COURTS BECAUSE OF CONTRARY INTERVENING DECISIONS,  FN17  AND HAS
ACCEPTED JURISDICTION BY VIRTUE OF STATUTES ENACTED AFTER CASES WERE
PENDING BEFORE IT.  FN18 WHERE, AFTER JUDGMENT BELOW, A DECLARATION OF
WAR CHANGED THE STANDING OF ONE LITIGANT FROM AN ALIEN BELLIGERENT TO
AN ENEMY, THIS COURT TOOK COGNIZANCE OF THE CHANGE AND MODIFIED THE
ACTION BELOW BECAUSE OF THE NEW STATUS.  FN19  SIMILARLY REPEAL OF
CRIMINAL LAWS OR OF A CONSTITUTIONAL PROVISION WITHOUT A SAVING CLAUSE
DEPRIVES APPELLATE COURTS OF JURISDICTION TO ENTERTAIN FURTHER
PROCEEDINGS UNDER THEIR SANCTIONS.  FN20  THESE INSTANCES INDICATE THAT
THE DOMINANT PRINCIPLE IS THAT NISI PRIUS AND APPELLATE TRIBUNALS ALIKE
SHOULD CONFORM THEIR ORDERS TO THE STATE LAW AS OF THE TIME OF THE
ENTRY.  INTERVENING AND CONFLICTING DECISIONS WILL THUS CAUSE THE
REVERSAL OF JUDGMENTS WHICH WERE CORRECT WHEN ENTERED. 

RESPONDENT EARNESTLY PRESSES UPON US THE DESIRABILITY OF APPLYING THE
RULE THAT APPELLATE COURTS WILL REVIEW A JUDGMENT ONLY TO DETERMINE
WHETHER IT WAS CORRECT WHEN MADE; THAT ANY OTHER REVIEW WOULD MAKE THE
FEDERAL COURTS SUBORDINATE TO STATE COURTS AND THEIR JUDGMENTS SUBJECT
TO CHANGES OF ATTITUDE OR MEMBERSHIP OF STATE COURTS, WHETHER THAT
CHANGE WAS NORMAL OR INDUCED FOR THE PURPOSE OF AFFECTING FORMER
FEDERAL RULINGS.  WHILE NOT INSENSIBLE TO POSSIBLE COMPLICATIONS, WE
ARE OF THE VIEW THAT, UNTIL SUCH TIME AS A CASE IS NO LONGER SUB
JUDICE, THE DUTY RESTS UPON FEDERAL COURTS TO APPLY STATE LAW UNDER THE
RULES OF DECISION STATUTE IN ACCORDANCE WITH THE THEN CONTROLLING
DECISION OF THE HIGHEST STATE COURT.  FN21  ANY OTHER CONCLUSION WOULD
BUT PERPETUATE THE CONFUSION AND INJUSTICES ARISING FROM INCONSISTENT
FEDERAL AND STATE INTERPRETATIONS OF STATE LAW.  REVERSED. 

FN1  VANDENBARK V. OWENS-ILLINOIS GLASS CO., 110 F.2D 310, 312. 

FN2  OHIO GEN. CODE (PAGE, 1937) SEC. 1465-70. 

FN3  ART. 2, SEC. 35. 

FN4  ZAJACHUCK V. WILLARD STORAGE BATTERY CO., 106 OHIO ST. 538; 140
N.E. 405; MABLEY & CAREW CO. V. LEE, 129 OHIO ST. 69, 73; 193 N.E.
745. 

FN5  TRIFF V. NATIONAL BRONZE & ALUMINUM FOUNDRY CO., 135 OHIO ST.
191, 205; 20 N.E.2D 232. 

FN6  304 U.S. 64. 

FN7  U.S. CODE, TITLE 28, SEC. 725.  "LAWS OF STATES AS RULES OF
DECISION.  THE LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE
CONSTITUTION, TREATIES, OR STATUTES OF THE UNITED STATES OTHERWISE
REQUIRE OR PROVIDE, SHALL BE REGARDED AS RULES OF DECISION IN TRIALS AT
COMMON LAW, IN THE COURTS OF THE UNITED STATES, IN CASES WHERE THEY
APPLY." 

FN8  16 PET. 1. 

FN9  PEASE V. PECK, 18 HOW.  595, 599; MORGAN V. CURTENIUS, 20 HOW. 
1; BURGESS V. SELIGMAN, 107 U.S. 20, 33; CONCORDIA INSURANCE CO. V.
SCHOOL DISTRICT, 282 U.S. 545, 553. 

FN10  CF. KUHN V. FAIRMONT COAL CO., 215 U.S. 349, 356. 

FN11  1 CRANCH 103, 110. 

FN12  93 U.S. 674; SEE DISCUSSION OF THIS CASE IN BAUSERMAN V. BLUNT,
147 U.S. 647, 655-56. 

FN13  104 U.S. 625, 629. 

FN14  276 U.S. 238, 240. 

FN15  309 U.S. 4, 7-8. 

FN16  DINSMORE V. SOUTHERN EXPRESS CO., 183 U.S. 115; MISSOURI EX
REL. WABASH RY. CO. V. PUBLIC SERVICE COMM'N, 273 U.S. 126, 130;
CARPENTER V. WABASH RY. CO., 309 U.S. 23, 26. 

FN17 GULF, C. & S.F. RY. CO. V. DENNIS, 224 U.S. 503; DORCHY V.
KANSAS, 264 U.S. 286, 291; PATTERSON V. ALABAMA, 294 U.S. 600, 607. 

FN18  STEPHENS V. CHEROKEE NATION, 174 U.S. 445, 478; FREEBORN V.
SMITH, 2 WALL.  160, 174. 

FN19  WATTS, WATTS & CO. V. UNIONE AUSTRIACA, 248 U.S. 9, 21. 

FN20  UNITED STATES V. CHAMBERS, 291 U.S. 217, 222. 

FN21  WE HAVE APPLIED THE RULE ENUNCIATED IN THE CASE OF ERIE R. CO.
V. TOMPKINS, 304 U.S. 64, THAT STATE LAW AS DETERMINED BY THE STATE'S
HIGHEST COURT IS TO BE FOLLOWED AS A RULE OF DECISION IN THE FEDERAL
COURTS, TO DETERMINATIONS BY STATE INTERMEDIATE APPELLATE COURTS.  WEST
V. AMERICAN TELEPHONE & TELEGRAPH CO., ANTE, P. 223; FIDELITY UNION
TRUST CO. V. FIELD, ANTE, P. 169; SIX COMPANIES OF CALIFORNIA V. JOINT
HIGHWAY DISTRICT, ANTE, P. 180; STONER V. NEW YORK LIFE INSURANCE CO.,
ANTE, P. 464. 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 

MR. JUSTICE STONE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










PALMER V. CONNECTICUT RY. CO., 311 U.S. 544 


NO. 38.  ARGUED NOVEMBER 15, 1940.  - DECIDED JANUARY 6, 1941.  - 109
F.2D 568, AFFIRMED. 


1.  IN A RAILROAD REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY ACT,
UPON REJECTION BY THE TRUSTEES OF A 999-YEAR LEASE OF STREET RAILWAY
PROPERTIES HAVING 969 YEARS TO RUN, THE MEASURE OF THE LESSOR'S DAMAGES
IS THE PRESENT VALUE OF THE RENT RESERVED LESS THE PRESENT RENTAL VALUE
OF THE REMAINDER OF THE TERM.  CONNECTICUT RAILWAY & LIGHTING CO. V.
PALMER, 305 U.S. 493, 504.  P. 555. 

2.  IN APPLYING THIS RULE TO SO LONG A LEASE, SINCE THE EVIDENCE OF
DAMAGES IS NECESSARILY LIMITED TO A PERIOD OF DEFINITE FORECAST, THE
DAMAGE MAY BE ESTIMATED FOR A LIMITED FUTURE PERIOD UPON EVIDENCE OF
RENTAL VALUE DERIVED FROM A PERIOD OF PAST OPERATION OF THE LEASED
PROPERTY.  P. 555. 

THERE BEING NO SUGGESTION THAT THE RENTAL AGREED UPON WAS OTHER THAN
A REASONABLE RETURN UPON THE VALUE OF THE DEMISED PROPERTY, FAIRLY
NEGOTIATED, IT IS FAIR TO PRESUME, UNTIL SOMETHING ELSE IS SHOWN, THAT
FOR THE LONG YEARS AHEAD THE RENT AND RENTAL VALUE ARE THE SAME. 
CONSEQUENTLY, PROOF OF RENTAL VALUE SMALLER IN AMOUNT THAN THE RENT
RESERVED, FOR A TERM OF YEARS SHORTER THAN THE REMAINDER OF THE LEASE,
IS, IN THE ABSENCE OF EVIDENCE AS TO OTHER YEARS, PROOF OF THE DAMAGE
IN SUCH SHORTER PERIOD.  P. 557. 

3.  OPINION EVIDENCE OF RENTAL VALUE MAY BE CONSIDERED IN DETERMINING
THE LESSOR'S DAMAGES, BUT HAS LITTLE, IF ANY, PROBATIVE FORCE BEYOND
THE IMMEDIATE YEARS AND CAN NOT BE PERMITTED TO FIX RENTAL VALUE FOR
THE PURPOSE OF DETERMINING DAMAGES IN THE INDEFINITE FUTURE.  P. 556. 

4.  UPON EVIDENCE OF PAST EARNINGS OF DEMISED STREET CAR PROPERTIES
OVER A PERIOD OF FOURTEEN YEARS, INCLUDING THREE YEARS OF OPERATION BY
THE LESSOR AFTER REJECTION OF THE LEASE, THE CIRCUIT COURT OF APPEALS,
REVERSING THE DISTRICT COURT, ESTIMATED THE PROBABLE EARNINGS FOR
ELEVEN YEARS SUCCEEDING THE REJECTION, UPON THE BASIS OF WHICH, AND OF
THE RENT RESERVED FOR THAT PERIOD, IT FOUND AND AWARDED DAMAGES TO THE
LESSOR.  HELD: 

(1)  THERE BEING NO DISPUTE OVER THE FACTS PROVEN, THE SUFFICIENCY OF
THE PROOF OF DAMAGE WAS FOR THE COURT OF APPEALS.  P. 558. 

(2)  THIS COURT, ON THIS REVIEW, DEALS WITH THE METHOD OF PROVING
DAMAGES, NOT THE MEASURE.  P. 558. 

(3)  THE EVIDENCE FORMED AN ADEQUATE BASIS FOR A REASONED JUDGMENT
AND JUSTIFLED AN AWARD.  P. 558. 

(4)  ALTHOUGH THE BUSINESS CHANGED FROM TROLLEY TO BUS TRANSPORTATION
WITHIN TWO YEARS OF THE END OF THE BASE PERIOD, AND MANAGEMENT CHANGED
FROM LESSEE TO LESSOR, IN VIEW OF THE ESTABLISHED CHARACTER OF THE
BUSINESS THESE CHANGES WERE NOT SUFFICIENT TO AFFECT THE PROBATIVE
VALUE OF PAST EXPERIENCE.  P. 559. 

(5)  NOTHING IS MORE INDICATIVE OF THE VALUE OF FRANCHISES AND
PROPERTIES OF STREET RAILWAYS AND BUS LINES, FOR LEASE OR SALE, THAN
PAST EARNINGS.  P. 560. 

(6)  IN PROVING COMPENSATORY DAMAGES, CERTAINTY IN THE FACT OF DAMAGE
IS ESSENTIAL; CERTAINTY AS TO THE AMOUNT GOES NO FURTHER THAN TO
REQUIRE A BASIS FOR A REASONED CONCLUSION; THE INJURED PARTY IS NOT TO
BE BARRED FROM A FAIR RECOVERY BY IMPOSSIBLE REQUIREMENTS.  P. 560. 

(7)  THE FAILURE OF THE LESSOR TO PRODUCE FURTHER EVIDENCE, THROUGH
EXPERTS OR TRANSPORTATION SURVEYS, WAS NOT FATAL TO ITS CASE.  P. 561. 

PALMER ET AL., TRUSTEES, V. CONNECTICUT RAILWAY & LIGHTING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 309 U.S. 653, TO REVIEW A JUDGMENT REVERSING AN ORDER OF
THE DISTRICT COURT AND AWARDING DAMAGES TO THE PRESENT RESPONDENT FOR
REJECTION OF ITS LEASE IN A RAILROAD REORGANIZATION CASE. 

MR. JAMES GARFIELD, WITH WHOM MR. HERMON J. WELLS WAS ON THE BRIEF,
FOR PETITIONERS. 

RESPONDENT'S RIGHT TO RECOVER DAMAGES FOR THE REJECTION OF THE LEASE
DEPENDS UPON WHETHER IT WILL BE INJURED BY THE DESTRUCTION OF THE
ENTIRE REMAINDER OF THE TERM.  IT CAN NOT WAIVE, NOR CAN THE COURTS
WAIVE FOR IT, THE LATTER PART OF THE TERM.  IT COULD NOT RECOVER FOR A
LOSS IN THE EARLY PART OF THE TERM WITHOUT PROVING THAT THERE WOULD BE
NO OFFSET TO THAT LOSS DURING THE LATER PART. 

TO DECIDE ON THE BASIS OF AN INITIAL LOSS AND DISREGARD THE LATER
PORTION OF THE TERM IS EQUIVALENT TO FINDING THAT THE RENTAL VALUE OF
THE PROPERTY WILL NOT DURING THAT PERIOD EQUAL THE RENT.  SUCH A
FINDING CAN NOT BE MADE WITHOUT PROOF.  TO SAY THAT PROOF MAY BE
DISPENSED WITH BECAUSE IT IS TOO DIFFICULT IS EITHER TO SAY THAT THE
COURT MAY REMAKE THE CONTRACT FOR THE PARTIES BY SHORTENING THE TERM OF
THE LEASE OR THAT THE BURDEN OF PROOF SHIFTS WHEN IT BECOMES TOO HEAVY
TO BEAR.  NEITHER, WE SUBMIT, IS TRUE. 

THE LANDLORD CAN, THEREFORE, RECOVER ONLY IF HE HAS BEEN INJURED
THROUGH LOSING THE DIFFERENCE BETWEEN RENT AND RENTAL VALUE FOR THE
ENTIRE REMAINDER OF TERM FOR WHICH HE BARGAINED.  CITING: THIS CASE,
305 U.S. 504, 505; CITY BANK CO. V. IRVING TRUST CO., 299 U.S. 433,
443; PENNSYLVANIA STEEL CO. V. NEW YORK CITY RAILWAY CO., 198 F. 721,
759. 

THE UNIVERSAL RULE IS THAT DAMAGES FOR LOSS OF FUTURE RENT WILL NOT
BE AWARDED FOR PART OF THE UNEXPIRED TERM WITHOUT PROOF OF DAMAGE FOR
THE WHOLE TERM.  PENNSYLVANIA STEEL CO. V. NEW YORK CITY RAILWAY CO.,
SUPRA; IN RE WISE SHOES, INC., 64 F.2D 1023.  CF. PEOPLE EX REL. NELSON
V. WEST TOWN STATE BANK, 299 ILL. APP. 242; 373 ILL. 106. 

AS THE MIND OF THE TRIAL JUDGE WAS NOT SATISFIED BY THE EVIDENCE OF
DAMAGE, THE APPELLATE COURT SHOULD NOT HAVE AWARDED DAMAGES ON THE
BASIS OF THAT EVIDENCE. 

THE GENERAL PURPOSE OF THE CHANGE IN THE STATUTE WAS TO PROTECT THE
OTHER CREDITORS IN A REORGANIZATION FROM DISPROPORTIONATE AWARDS TO
THOSE WHO, LIKE LANDLORDS OR OTHER EXECUTORY CONTRACTORS, RECEIVE BACK
THEIR PROPERTY.  KUEHNER V. IRVING TRUST CO., 299 U.S. 445, 454. 

THE WORD "ACTUAL" CLEARLY IMPORTS THAT BECAUSE OF THE DANGER THAT
SPECULATIVE ELEMENTS MIGHT ENTER INTO THE OTHERWISE UNLIMITED
DETERMINATION OF A LANDLORD'S DAMAGES, CONGRESS INTENDED TO PRESCRIBE A
REQUIREMENT THAT SUCH DAMAGES MUST BE PROVED IN SUCH FASHION AS TO
SATISFY THE COURT THAT THEY WOULD CERTAINLY BE SUFFERED.  IF ANY DOUBT
EXISTED THEY COULD NOT BE ALLOWED.  THEREFORE, IF THE TRIAL JUDGE'S
MIND WAS NOT SATISFIED, HIS FINDING THAT THE EVIDENCE WAS INSUFFICIENT
SHOULD BE GIVEN THE WEIGHT AND SIGNIFICANCE WHICH ATTACH TO A FINDING
OF FACT BY A JURY OR BY AN ADMINISTRATIVE TRIBUNAL AND SHOULD NOT BE
REVERSED EXCEPT FOR AN ERROR OF LAW. 

THE EVIDENCE DOES NOT SHOW DAMAGES TO REASONABLE CERTAINTY.  THE ONLY
EVIDENCE CONTAINED IN THE RECORD WHICH COULD CONCEIVABLY THROW ANY
LIGHT ON THE SUBJECT OF RENTAL VALUE CONSISTS OF THE PAST EARNINGS,
ACTUAL OR ESTIMATED, OF THE LEASED PROPERTY, ITS BOOK VALUE BEFORE
REJECTION, THE STATEMENT THAT THE DEMISED TROLLEY PROPERTIES WERE IN
PART CONVERTED TO BUSES PRIOR TO REPOSSESSION IN NOVEMBER, 1936, AND
WHOLLY SO CONVERTED SHORTLY THEREAFTER, AND THE VALUE ON DECEMBER 31,
1938, OF THE PROPERTY THEN BELONGING TO THE RESPONDENT. 

NO EVIDENCE WAS OFFERED OF THE CHARACTER OF THE TERRITORY SERVED OR
THE EXISTENCE OR POSSIBILITY OF COMPETITIVE TRANSPORTATION AGENCIES
THEREIN, NOR OF DEVELOPMENTS OR TRENDS OR PROSPECTS IN THE ART, OR IN
THAT TERRITORY.  THERE WAS NO TESTIMONY AS TO WHAT FUTURE DEVELOPMENTS
MIGHT BE EXPECTED OR HOW THEY WOULD AFFECT THE CHARACTER, VOLUME OR
PROFITABLENESS OF RESPONDENT'S ENTERPRISE. 

EVEN AS TO "THE PAST" RESPONDENT'S SHOWING WAS LIMITED TO THE
EARNINGS AND ESTIMATED EARNINGS OF THE PROPERTY AVERAGED FOR FIVE
DIFFERENT PERIODS ALL OF THEM ENDING WITH DECEMBER 31, 1938, AND NONE
OF THEM EXTENDING FURTHER BACK THAN 1924.  THESE AVERAGES WERE THEN
PROJECTED FOR 37 YEARS INTO THE FUTURE AFTER MAKING CERTAIN ADDITIONS
TO PROSPECTIVE EARNINGS ON THE BASIS OF THIS COURT'S RULING THAT THE
SINKING FUNDS WHICH CAME INTO RESPONDENT'S POSSESSION ON TERMINATION OF
THE LEASE WOULD INCREASE THE EARNING POWER OF THE PROPERTY. 

A PERIOD WHICH DOES NOT INCLUDE EVEN ONE COMPLETE ECONOMIC CYCLE CAN
NOT BE CONSIDERED A RELIABLE BASE FOR FORECASTING EVEN SO SMALL A PART
OF THE REMAINDER OF THE TERM AS THE NEXT EIGHT YEARS. 

THE RECORD CONTAINS NO EVIDENCE AS TO WHETHER CONDITIONS IN THE
INDUSTRY OR THE TERRITORY ARE NOW, OR ARE LIKELY TO BE, SIMILAR TO
THOSE DURING THE PAST FOURTEEN YEARS. 

FROM THE RECORD, ALL THAT THE APPELLATE JUDGES COULD HAVE KNOWN OF THE
CHARACTER OF THE PROPERTY WAS SIMPLY THAT IT WAS TROLLEYS WHICH WERE
GRADUALLY BEING CONVERTED INTO BUSES.  OF THE TERRITORY SERVED, THEY
HAD, OF COURSE, THE FAMILIARITY OF WELL-INFORMED CITIZENS.  OF THE
HISTORY OF OPERATIONS, THEY HAD NOTHING EXCEPT NET EARNINGS.  OF THE
GENERAL ECONOMIC CONDITIONS, AGAIN, THEY HAD NO MORE THAN THE KNOWLEDGE
OF ANY WELL-INFORMED PERSONS, FOR THEY WERE OFFERED NOTHING ELSE. 

THE VALUE BASE WHICH THE RESPONDENT USED IS NOT TENABLE.  IT WAS AN
APPRAISAL OF THE PROPERTIES AFTER THEY HAD BEEN IN THE CONTROL OF THE
RESPONDENT FOR OVER TWO YEARS AND AFTER A SUBSTANTIAL PART OF THEM HAD
BEEN ABANDONED AND ALL HAD BEEN CONVERTED FROM TROLLEYS INTO BUSES. 

THE RECORD IS DEVOID OF FINDINGS ON ANOTHER ELEMENT NECESSARY TO THE
DETERMINATION OF DAMAGES, VIZ., THE AMOUNT TO BE ADDED TO POST
REJECTION EARNINGS ON ACCOUNT OF RESPONDENT'S ACQUISITION OF THE
SINKING FUNDS ON THE TERMINATION OF THE LEASE.  SO FAR AS APPEARS, THE
COURT DID NOT CONSIDER THE EARNINGS HISTORY OF THE LEASED PROPERTIES
PRIOR TO 1925, WHEN THE PROPORTION OF DEPRESSION TO PROSPERITY WAS VERY
MUCH LESS THAN DURING THE FOURTEEN SUBSEQUENT YEARS.  IT ERRED IN
FAILING TO TAKE INTO ACCOUNT ALL OF THE ELEMENTS WHICH SHOULD HAVE GONE
INTO A COMPUTATION OF DAMAGES. 

MR. GEORGE W. MARTIN FOR RESPONDENT. 

THE FORMULA LAID DOWN BY THIS COURT FOR CALCULATING THE AMOUNT OF THE
LANDLORD'S CLAIM FOR THE LOSS OF HIS LEASE IS THAT THE DAMAGES ARE "THE
DIFFERENCE BETWEEN THE RENTAL VALUE OF THE REMAINDER OF THE TERM AND
THE RENT RESERVED, BOTH DISCOUNTED TO PRESENT WORTH."  CITY BANK CO. V.
IRVING TRUST CO., 299 U.S. 433, 443; KUEHNER V. IRVING TRUST CO., 299
U.S. 445, 450; CONNECTICUT RY. CO. V. PALMER, 305 U.S. 493, 504. 

THE COURT HAS STATED THIS RULE OF DAMAGES AS THOUGH IT WERE A
MATHEMATICAL FORMULA FOR ASCERTAINING AN ANSWER IN DOLLARS; BUT OF
COURSE, IN ADDITION, IT IS A RECOGNIZED METHOD OF ASCERTAINING THE
VALUE TO THE LANDLORD OF THE LOST LEASE AT THE TIME OF ITS REJECTION. 
BECAUSE, WHAT THE LANDLORD LOSES IS HIS LEASE, AND THE DAMAGES ARE
MERELY THE NET VALUE OF THE LEASE. 

THE DISTRICT COURT CONSIDERED THAT THE FORMULA WAS A MATHEMATICAL
PRESCRIPTION, WHICH MUST BE WORKED OUT FROM RENT DAY TO RENT DAY ALL
THROUGH THE BALANCE OF THE TERM OF A LEASE IN ORDER TO MAKE SURE THAT
IN NO RENT PERIOD, OR IN NO SERIES OF RENT PERIODS, SUFFICIENT NET
AVAILS SHOULD BE REALIZED FROM THE PROPERTY TO RECOUP OR EVEN TO EXCEED
THE AMOUNT OF THE LOST RENTALS.  THE FACTOR WHICH CAUSES THE DIFFICULTY
IN THE APPLICATION OF THE FORMULA IN SUCH A WAY IS NOT THE AMOUNT OF
THE RESERVED RENT AND ITS PRESENT VALUE DISCOUNTED, BUT THE AMOUNT OF
THE RENTAL VALUE PRESUMABLY BASED ON THE FUTURE NET OPERATING INCOME
FROM THE PROPERTY.  IN A SITUATION LIKE THIS, WHERE THE LEASE HAS NO
MARKET VALUE WHATEVER, THE FORMULA FOR ASCERTAINING THE VALUE OF THE
LEASE MUST BE APPLIED; BUT IT MUST BE APPLIED IN SUCH A WAY THAT "THE
DAMAGE WILL BE BASED ON EVIDENCE WHICH SATISFIES THE MIND."  305 U.S.
505. 

WHAT THIS MEANS IS THAT WHEN THE EVIDENCE AS TO FUTURE RENTAL VALUE
OF THE PROPERTY ATTEMPTS TO COVER SO LONG A SPAN OF TIME INTO THE
FUTURE THAT, TO THE MIND OF THE ORDINARY MAN, NO CONVICTION IS CARRIED
THAT THE CONCLUSION WHICH IS GOING TO BE REACHED IS NOT JUST PURE
SPECULATION, THEN A POINT IS ARRIVED AT WHERE "REASONABLE CERTAINTY"
DISAPPEARS AND PROSPECTIVE LOSSES BEYOND THAT POINT CAN NO LONGER BE
RECOVERED.  ALL THIS IS MERELY THE APPLICATION OF "THE USUAL RULES AS
TO THE MEASURE OF DAMAGES."  WILLISTON ON CONTRACTS (REV. ED.), SEC.
1346; HETZEL V. BALTIMORE & OHIO R. CO., 169 U.S. 26, 28. 

OBVIOUSLY, IT WAS NOT THE INTENTION OF THIS COURT IN CONNECTICUT
RAILWAY CO. V. PALMER, 305 U.S. 493, TO LAY DOWN A NOVEL RULE OF
DAMAGES - AN ALL-OR-NOTHING RULE WHICH REQUIRED THAT EACH UNIT OF TIME
OVER THE REMAINDER OF A TERM OF 900 YEARS SHOULD BE ACCOUNTED FOR AS A
PERIOD OF A LOSS TO THE LANDLORD.  IT WAS EVIDENT ON THE PREVIOUS
APPEAL THAT THIS COURT CONSIDERED THE FAR FUTURE AS UNPREDICTABLE. 

IF THIS COURT HAD INTENDED TO LAY DOWN AN ALL-OR-NOTHING RULE, IT
WOULD HAVE DISMISSED THE PREVIOUS APPEAL.  305 U.S. 493. 

WHEN THIS COURT REVERSED ON THE LAST APPEAL, IT DID NOT REVERSE ON
THE GROUND THAT THE APPELLANT HAD RECEIVED TOO MUCH, BUT TOO LITTLE;
AND, WHEN THE CLAIM WAS SENT BACK FOR A NEW TRIAL BEFORE THE DISTRICT
COURT, THE OPINION OF THIS COURT WAS TO BE CONSTRUED, NOT AS LAYING
DOWN A NOVEL RULE OF DAMAGES, BUT AS A CAUTION AGAINST AN AWARD OF
DAMAGES ON ANYTHING LIKE A 969-YEAR BASIS.  THE REASON IS PLAIN:  NO
ORDINARILY PRUDENT MAN COULD POSSIBLY ESTIMATE THE VALUE OF THE LOST
LEASE AS OF THE TIME OF REJECTION ON ANY SUCH BASIS; BUT THIS DOES NOT
MEAN THAT THE LEASE HAS NOT A PRESENT VALUE, NOR THAT THAT VALUE CAN
NOT BE ASCERTAINED BY THE APPLICATION OF THE FORMULA TO DATA WHICH ARE
REASONABLY CERTAIN, SO FAR AS ANY ONE CAN SEE, TO BE TRUE AND
APPLICABLE; AND THE COURT OF APPEALS, APPLYING THIS COMMON-SENSE
INTERPRETATION OF THIS COURT'S OPINION, CAME TO THE CONCLUSION THAT
REASONABLE CERTAINTY WAS ATTAINED BY ALLOWING THE RESPONDENT DAMAGES
FOR ELEVEN YEARS SUBSEQUENT TO REJECTION OF THE LEASE, I.E., THREE
YEARS PRIOR TO THE TRIAL IN THE DISTRICT COURT FOR WHICH THE DAMAGES
ARE FULLY KNOWN, AND EIGHT YEARS FOR WHICH DAMAGES ARE ESTIMATED
ACCORDING TO PAST EXPERIENCE FOR FOURTEEN YEARS. 

THIS WAS THE NET VALUE OF THE LEASE AT THE TIME IT WAS DESTROYED BY
REJECTION.  IT IS NOT THE RESULT OF THE APPLICATION OF A PRECISE
MATHEMATICAL FORMULA FOR A LIMITED NUMBER OF YEARS, AND THE IGNORING OF
A SUBSEQUENT VAST PERIOD OF TIME.  IT IS A CONCLUSION THAT THE
SUBSEQUENT VAST PERIOD OF TIME IS NOT AN ELEMENT WHICH CAN ENTER INTO
THE PRESENT NET VALUE OF THE LEASE.  THIS SUBSEQUENT TIME HAS BEEN
WEIGHED AND FOUND TO BE INCOMMENSURABLE WITH REASONABLE CERTAINTY.  SEE
A.L.I. RESTATEMENT OF CONTRACTS, SEC. 331(A); HEDRICK V. PERRY, 102
F.2D 802, 807; SHELDON V. METRO-GOLDWYN PICTURES CORP., 106 F.2D 45,
51; AFFD., 309 U.S. 390; EASTMAN KODAK CO. V. SOUTHERN PHOTO MATERIALS
CO., 273 U.S. 359; SINCLAIR REFINING CO. V. JENKINS PETROLEUM PROCESS
CO., 289 U.S. 689, 697; PIECZONKA V. PULLMAN CO., 102 F.2D 432, 434. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI, WHICH WE ALLOWED BECAUSE OF ITS IMPORTANCE, INVOLVES
PROBLEMS OF PROVING A LESSOR'S CLAIM FOR DAMAGES FOR REJECTION OF ITS
LEASE IN A PROCEEDING UNDER SEC. 77 OF THE BANKRUPTCY ACT.  THE LEASE,
DEMISING RESPONDENT'S STREET RAILWAY PROPERTIES AND EQUIPMENT IN
CONNECTICUT FOR 999 YEARS FROM 1906, WAS REJECTED ON DECEMBER 18, 1935,
BY PETITIONERS, THE TRUSTEES OF THE DEBTOR, THE NEW YORK, NEW HAVEN AND
HARTFORD RAILROAD COMPANY.  FN1  THE ANNUAL RENT RESERVED AT REJECTION
WAS CLOSE TO $1,050,000 WITH TAX, SINKING FUND, INTEREST AND BOND
RETIREMENT ADJUSTMENTS, WHICH ARE NOT MATERIAL TO OUR DISCUSSION. 

AFTER REJECTION THE LESSOR FILED A CLAIM FOR DAMAGES UNDER SUBSECTION
(B) OF SEC. 77.  THE APPLICABLE PROVISIONS ARE AS FOLLOWS: 

"  ...  IN CASE AN EXECUTORY CONTRACT OR UNEXPIRED LEASE OF PROPERTY
SHALL BE REJECTED,  ... ANY PERSON INJURED BY SUCH  ...  REJECTION
SHALL FOR ALL PURPOSES OF THIS SECTION BE DEEMED TO BE A CREDITOR OF
THE DEBTOR TO THE EXTENT OF THE ACTUAL DAMAGE OR INJURY DETERMINED IN
ACCORDANCE WITH PRINCIPLES OBTAINING IN EQUITY PROCEEDINGS.  ..." 

THE CLAIM WAS ALLOWED, LIMITED TO THE DAMAGES ACCRUED OR WHICH MIGHT
ACCRUE BEFORE THE WINDING UP OF THE REORGANIZATION.  THIS COURT ON A
PREVIOUS CERTIORARI  FN2  DISAPPROVED THAT MEASURE OF DAMAGES AND LAID
DOWN AS THE MEASURE "THE PRESENT VALUE OF THE RENT RESERVED LESS THE
PRESENT RENTAL VALUE OF THE REMAINDER OF THE TERM."  ON REMAND TO THE
DISTRICT COURT, THE LESSOR UNDERTOOK TO PROVE DAMAGES ACCORDING TO THE
APPROVED MEASURE BY INTRODUCING EVIDENCE OF THE PRESENT VALUE (JANUARY
1, 1936), AT FOUR PER CENT DISCOUNT, OF THE RENT RESERVED UNDER THE
LEASE FOR FORTY YEARS ONLY (TO DECEMBER 31, 1975).  THIS AMOUNTED TO
AROUND TWENTY MILLION DOLLARS.  FOR A CORRESPONDING PERIOD EVIDENCE OF
RENTAL VALUE SIMILARLY DISCOUNTED WAS OFFERED.  THE DIFFERENCE WAS
SUBMITTED AS THE DAMAGES FOR REJECTION.  NO PROOF OF RENT RESERVED OR
RENTAL VALUE BEYOND THE FORTY YEARS WAS OFFERED AS RESPONDENT WAS
ADVISED SUCH PROOF WOULD BE TOO UNCERTAIN TO CARRY CONVICTION.    TO
PROVE RENTAL VALUE, RESPONDENT OFFERED EVIDENCE OF ANNUAL EARNINGS FOR
EACH OF THE FORTY YEARS.  THESE EARNINGS WERE MADE UP OF THE EARNING
POWER OF A SINKING FUND, PLUS AN ADJUSTMENT OF THE ANNUAL PAYMENTS
REQUIRED BY THE LEASE TO BE MADE TO THE SINKING FUND, PLUS THE
OPERATING PROFITS OF THE TRANSPORTATION PROPERTIES.  FOR 1936-1938 THE
ACTUAL EARNINGS WERE USED.  THIS WAS THE PERIOD AFTER REJECTION AND
BEFORE TRIAL WHEN THE DEMISED PROPERTIES WERE OPERATED BY OR FOR
RESPONDENT.  FOR 1939-1975 EARNINGS WERE ESTIMATED BY ALTERNATIVE
CALCULATIONS OF AVERAGE ANNUAL EARNINGS, BEFORE FEDERAL TAXES, OVER
FOUR PRIOR BASE PERIODS EACH ENDING DECEMBER 31, 1938:  (1) THE
PRECEDING YEAR AND A HALF OF 100% BUS OPERATION; (2) THE THREE YEARS OF
ACTUAL OPERATION, FOLLOWING REJECTION, DURING WHICH THE TRANSITION FROM
TROLLEYS TO BUSES HAD BEEN COMPLETED; (3) TEN YEARS, 1929-1938, THE
ACCOUNTS FOR WHICH WERE PARTLY RECONSTRUCTED BECAUSE BEFORE THE
REORGANIZATION THE DEMISED PREMISES WERE UTILIZED IN CONJUNCTION WITH
OTHERS NOT INVOLVED HERE; AND, FINALLY, (4) FOURTEEN YEARS, 1925-1938. 
FN3  THE EARNING POWER OF THE SUMS IN THE SINKING FUND AND THE ANNUAL
PAYMENTS TO IT WERE ASSUMED TO BE FIXED.  TO GET THE RENTAL VALUE,
THESE TWO FIXED SUMS WERE ADDED TO THE OPERATING PROFIT CALCULATED FROM
EACH OF THE FOUR BASE PERIODS.  SINCE EARNINGS WERE ERRATIC, VARYING
FROM $78,000 TO $775,000 IN THE FOURTEEN-YEAR PERIOD, THE ANNUAL RENTAL
VALUE FOR THE FUTURE VARIED ACCORDING TO THE BASE USED.  LIKEWISE, THE
DAMAGES CALCULATED FOR FORTY YEARS SHOWED A RANGE OF FROM NINE AND A
HALF TO THIRTEEN AND A THIRD MILLION.  IT IS SUBSTANTIALLY CORRECT TO
SAY THAT NO EVIDENCE IN DISAGREEMENT WITH THE BASE FIGURES WAS PRODUCED
FOR THE PETITIONER.  NOR DID PETITIONER INTRODUCE ANY EVIDENCE ON ITS
PART TO ESTABLISH A DIFFERENT AMOUNT OF DAMAGES. 

THE DISTRICT COURT REFUSED TO FIND FUTURE EARNINGS BY PROJECTING THE
AVERAGE EARNINGS OF ANY OF THE FOUR BASE PERIODS.  IT POINTED OUT THAT
IN ITS VIEW THE 100% BUS OPERATION WAS TOO NEW AND HAD COINCIDED WITH
TOO GREAT A SHRINKAGE OF EARNINGS TO SERVE AS A SAFE GUIDE.  THE DATA
FOR 1936-1938 WERE DEEMED UNCONVINCING BECAUSE THEY WERE DERIVED IN A
SUBSTANTIAL MEASURE FROM TROLLEY OPERATIONS, NOW ABANDONED, AND BECAUSE
THE PERIOD WAS ONE OF ECONOMIC DEPRESSION.  THE TEN AND THE FOURTEEN
YEAR BASES WERE DISAPPROVED AS IRRELEVANT BECAUSE OF TROLLEY OPERATION,
AND AS SPECULATIVE BECAUSE OF THE IMPOSSIBILITY OF FORECASTING THE
RELATIVE FREQUENCY OF PROFITABLE AND UNPROFITABLE YEARS FROM THIS PAST
EXPERIENCE.  THE COURT POINTED OUT THAT NO EVIDENCE OF TRANSPORTATION
EXPERTS OR SURVEYS WAS OFFERED TO ASSIST IT IN APPRAISING POSSIBILITIES
OF THE DEVELOPMENT OF THE TERRITORY, OF INCREASED OPERATING EFFICIENCY
OR THE EFFECTS OF CONSOLIDATION N4.  FURTHERMORE, THE TRIAL COURT WAS
OF THE VIEW THAT EVEN WITH ACCEPTABLE PROOF OF ANNUAL RENTAL VALUE FOR
FORTY YEARS, OR OTHER PERIOD MATERIALLY SHORTER THAN THE UNEXPIRED TERM
OF THE LEASE, NO CONCLUSION COULD BE REACHED AS TO THE PRESENT RENTAL
VALUE OF THE REMAINDER OF THE TERM, BECAUSE THAT PORTION OF THE TERM
BEYOND THE REACH OF THE PROOF OFFERED MIGHT HAVE PROFITS OR LOSSES
WHICH WOULD UPSET THE CALCULATIONS FOR EARLIER YEARS.  THE DISTRICT
COURT THEN STRUCK OUT THE ACCRUED DAMAGES OF MORE THAN A MILLION
DOLLARS ALLOWED ON THE FORMER HEARING AND SET ASIDE THE PROVISION OF
THE SAME ORDER PERMITTING ACCRUED DAMAGES TO BE PROVEN UP TO THE DATE
OF FINAL HEARING. 

THE CIRCUIT COURT OF APPEALS WAS OF THE VIEW THAT "IN EFFECT, THE LAW
FOR PURPOSES OF DAMAGES TREATS A LEASE WITH 969 MORE YEARS TO RUN AS IF
IT WERE ONLY FOR A TERM WITHIN THE REACH OF FAIRLY DEFINITE FORECAST." 
109 F.2D 568, 571.  IT THOUGHT THAT THE EVIDENCE OF EARNINGS OVER THE
FOURTEEN-YEAR EXPERIENCE WAS ADEQUATE TO ENABLE IT TO DRAW A REASONED
CONCLUSION AS TO PROBABLE EARNINGS FOR ELEVEN YEARS.  FOR THE THREE
YEARS, 1936-1938, THESE WERE KNOWN; FOR THE OTHER EIGHT YEARS, THE
AVERAGE ANNUAL EARNINGS FOR THE PRECEDING 14-YEAR PERIOD WERE ADOPTED. 
AN ALLOWANCE OF THE DAMAGES AT TIME OF REJECTION WAS MADE IN THE AMOUNT
OF $4,411,837.61.  FN5 

THE CERTIORARI BRINGS HERE THE QUESTIONS OF WHETHER PROOF OF DAMAGES
FOR A PORTION OF AN UNEXPIRED LEASE IS SUFFICIENT TO FIX DAMAGES FOR
THE WHOLE REMAINING TERM AND WHETHER THE CIRCUIT COURT OF APPEALS MAY
ALLOW DAMAGES ON THE SOLE BASIS OF PAST EARNINGS, EVIDENCE WHICH THE
DISTRICT JUDGE HAS HELD DOES NOT SATISFY HIS MIND. 

FIRST.  LITIGATION OVER A 999-YEAR LEASE NATURALLY BRINGS UP
INCIDENTS DIFFICULT TO RECONCILE WITH KNOWN AND ESTABLISHED LEGAL
FORMULAE.  SINCE CONVEYANCERS AND BUSINESS MEN ALIKE HAVE LONG UTILIZED
THE CHARACTERISTIC PROVISIONS OF LEASES TO ACCOMPLISH TRANSFERS OF
RIGHTS IN REAL ESTATE FOR EXTENSIVE PERIODS WITHOUT PAYMENT OF THE
PURCHASE PRICE, SUCH LONG TERM AGREEMENTS HAVE BECOME A WELL RECOGNIZED
LEGAL IMPLEMENT, ESPECIALLY IN CORPORATE REALTY TRANSACTIONS AND
RAILROAD CONSOLIDATIONS AND MERGERS.  ITS RESERVATIONS OF RENT,
PROVISIONS FOR TAXES AND OPERATION ARE FIRMLY EMBEDDED IN OUR
FINANCIAL, CORPORATE AND TITLE STRUCTURES.  FN6  BUSINESS AND
GOVERNMENT ALIKE ARE ACCUSTOMED TO FIX THE RENTAL VALUE OF PROPERTY FOR
LONG TERM LEASES AND THE VALUE OF THE LEASE OVER AND ABOVE THE RENT
RESERVED AT VARYING PERIODS OF THE TERM.  FN7  IN PENDING RAILROAD
REORGANIZATIONS, THEMSELVES, APPRAISALS OF RENTAL VALUES MUST BE
CONSIDERED.  FN8  THAT SUCH DETERMINATIONS RECUR WITH SOME FREQUENCY
DEMONSTRATES THEIR PRACTICAL POSSIBILITY. 

THE PETITIONER CONTENDS, HOWEVER, THAT EVIDENCE OF RENTAL VALUE FOR A
40-YEAR PERIOD, NO MATTER HOW CERTAIN IT MAY BE, IS INADEQUATE TO
ENABLE A COURT TO ESTABLISH THE DAMAGES FOR THE ENTIRE 969 REMAINING
YEARS.  ITS ARGUMENT IS THAT ONE CANNOT BE SURE THE TRUNCATED PORTION
WILL NOT SHOW SUFFICIENT GAIN TO ABSORB ALL LOSSES.  SINCE CERTAIN
PROOF FOR DISTANT YEARS CANNOT BE PRODUCED, THIS OBJECTION LEAVES THE
LESSOR TO QUALIFIED OPINION EVIDENCE AS TO ANNUAL RENTAL VALUE,
DISCOUNTED FOR THE TERM TO SHOW PRESENT DAMAGE.  SUCH AN OPINION
NECESSARILY PROCEEDS FROM PRESUMABLY ADEQUATE KNOWLEDGE OF WHAT
LESSEES, DESIRING BUT NOT REQUIRING THE FACILITIES, WOULD BE WILLING TO
PAY FOR A NEW LEASE AND LESSORS, IN A SIMILAR ATTITUDE TOWARD RENTING,
TO ACCEPT FOR THE REMAINDER OF THE TERM.  WHILE SUCH EVIDENCE IS
ADMISSIBLE FOR CONSIDERATION IN FORMING A JUDGMENT UPON DAMAGES, IT HAS
LITTLE, IF ANY, PROBATIVE FORCE BEYOND THE IMMEDIATE YEARS.  CERTAINLY
SUCH OPINION EVIDENCE ALONE CANNOT BE PERMITTED TO FIX RENTAL VALUE FOR
PURPOSES OF DAMAGES IN THE INDEFINITE FUTURE.  THE FINAL OBJECTIVE OF
THE PROOF IS NOT HOW MUCH THE REMAINDER IS WORTH NOW BUT WHAT DAMAGES
THE LESSOR HAS SUFFERED.  FOR THIS HE IS AWARDED COMPENSATION.  THE
MEASURE OF THAT DAMAGE IS RENT LESS RENTAL VALUE, A MATTER OF JUDGMENT
TO BE REACHED IN THE LIGHT OF PLEADING AND PROOF SUPPLEMENTED BY
JUDICIAL KNOWLEDGE. 

THE LAW FOR PURPOSES OF DAMAGES DOES NOT TREAT A BROKEN LEASE OF A
THOUSAND YEARS AS THOUGH IT RAN ONLY FOR A LIMITED TIME, THE DAMAGES
FOR WHICH ARE MEASURABLE.  BUT SINCE EVIDENCE OF THE DAMAGE IS
NECESSARILY LIMITED TO A TIME OF "DEFINITE FORECASTS" THE RULE OF
RENTAL VALUE PERMITS THE USE OF DATA FOR ONLY A LIMITED NUMBER OF YEARS
TO DETERMINE DAMAGES.  THE NUMBER OF YEARS TO BE CONSIDERED DEPENDS
UPON THE FULLNESS AND QUALITY OF THE EVIDENCE OFFERED TO ESTABLISH THE
DAMAGES.  HENCE, WHETHER A LIMITED TERM BEYOND THE REACH OF FORECASTS
OR THE WHOLE TERM IS TO BE USED AS A BASE FOR RENTAL VALUE, THE
EVIDENCE OF EARNINGS WOULD BE PROJECTED THE SAME NUMBER OF YEARS. 
THIS, WE THINK, IS WHAT WAS MEANT BY THE CIRCUIT COURT OF APPEALS WHEN
IT TREATED THE LEASE "IN EFFECT" AS ONE WITH A TERM WITHIN THE RANGE OF
PREDICTABILITY AS TO RENTAL VALUE. 

HOWEVER NEBULOUS THE CONCEPT OF A LONG LEASE MAY BE, IT IS NOT A
FICTION BUT AN ACTUAL INSTRUMENT.  NOTHING APPEARS IN THE RECORD TO
SUGGEST THAT THE RENTAL AGREED UPON WAS OTHER THAN A REASONABLE RETURN
UPON THE VALUE OF THE DEMISED PROPERTY, FAIRLY NEGOTIATED.  AT THE TIME
THE LEASE WAS EXECUTED, IT IS FAIR TO ASSUME THE PARTIES THOUGHT THE
ANNUAL RENT RESERVED AND RENTAL VALUE WERE THE SAME.  WITHOUT PROOF TO
THE CONTRARY ONLY NOMINAL DAMAGES WOULD BE ALLOWED THE CLAIMANT.  AND,
UNTIL SOMETHING ELSE IS SHOWN, COURTS ARE ENTIRELY JUSTIFIED IN
ASSUMING THAT FOR THE LONG YEARS AHEAD THE RENT AND THE RENTAL VALUE
ARE THE SAME.  FN9  AS A CONSEQUENCE, EVIDENCE OF RENTAL VALUE SMALLER
IN AMOUNT THAN THE RENT RESERVED FOR A TERM SHORTER THAN THE REMAINDER
OF THE LEASE IS, IN THE ABSENCE OF TESTIMONY AS TO OTHER YEARS, PROOF
OF THE DAMAGES FOR THE YEARS COVERED.  SINCE THE PRESUMPTION IS THAT
THE RENT AND RENTAL VALUE FOR THE REMAINDER OF THE TERM ARE THE SAME,
THE DAMAGE PROVEN IS TO BE CONSIDERED AS ALL THE DAMAGE FOR THE
REJECTION OF THE LEASE. 

SECOND.  THE PETITIONER ALSO CONTENDS THAT THE CIRCUIT COURT OF
APPEALS ERRED IN SETTING ASIDE THE DISTRICT COURT'S DECREE REFUSING THE
CLAIM ON THE GROUND THAT THE EVIDENCE, DETAILED ABOVE, DID NOT SATISFY
THE MIND AS TO THE AMOUNT OF DAMAGES.  IN THE VIEW OF THE TRIAL COURT,
THERE WAS A FAILURE OF PROOF.  THE CORRECTNESS OF THE JUDGMENT OF THE
APPELLATE COURT IN DIRECTING AN ALLOWANCE OF THE CLAIM DEPENDS NOT UPON
ITS POWER, WHICH WE THINK IS CLEAR,  FN10  BUT UPON ITS CONCLUSION AS
TO THE PERSUASIVE CHARACTER OF THE EVIDENCE, WHETHER IT IS TOO
SPECULATIVE, WHETHER IT SHOWED THE DAMAGE TO REASONABLE CERTAINTY.  AS
THERE WAS NO SIGNIFICANT DISPUTE OVER THE FACTS PROVEN, THE CONCLUSION
AS TO THE SUFFICIENCY OF THE EVIDENCE WAS FOR THE REVIEWING COURT.  WE
DEAL, IN THIS REVIEW, WITH THE METHOD OF THE PROOF OF DAMAGES, NOT THE
MEASURE.  NARROWED EVEN MORE, THE ISSUE IS WHETHER THE EVIDENCE OFFERED
JUSTIFIES AN AWARD, WHETHER THE QUANTUM OF PROOF PRODUCED FORMS AN
ADEQUATE BASIS FOR A REASONED JUDGMENT. 

FUTURE RENTAL VALUE CANNOT BE SUSCEPTIBLE OF PRECISE PROOF.  AS IT
DEPENDS, SO FAR AS THE AMOUNT OF DAMAGES FOR BREACH OF A LEASE IS
CONCERNED, UPON FUTURE PROFITS, IT PARTAKES OF THE NATURE OF LOSS OF
EARNING CAPACITY OR OF CREDIT.  TO REQUIRE PROOF OF RENTAL VALUE
APPROACHING MATHEMATICAL CERTITUDE WOULD BAR A RECOVERY FOR AN ACTUAL
INJURY SUFFERED.  ALL THAT CAN BE DONE IS TO PLACE BEFORE THE COURT
SUCH FACTS AND CIRCUMSTANCES AS ARE AVAILABLE TO ENABLE AN ESTIMATE TO
BE MADE BASED UPON JUDGMENT AND NOT GUESSWORK.  FN11  EVERY
ANTICIPATORY BREACH OF AN OBLIGATION, AND EVERY APPRAISAL OF DAMAGE
INVOLVING THE PRESENT VALUE OF PROPERTY INVOLVES A PREDICTION AS TO
WHAT WILL OCCUR IN THE FUTURE.  PRESENT MARKET VALUE OF PROPERTY IS BUT
THE RESULTANT OF THE PREDICTION OF MANY MINDS AS TO THE USABILITY OF
PROPERTY AND PROBABLE FINANCIAL RETURNS FROM THAT USE, PROJECTED INTO
THE FUTURE AS FAR AS REASONABLE, INTELLIGENT MEN CAN FORESEE THE
FUTURE. 

THE PROOF OF FUTURE PROFITS BY THE EVIDENCE OF PAST PROFITS IN AN
ESTABLISHED BUSINESS GIVES A REASONABLE BASIS FOR A CONCLUSION.  FN12
IT IS TRUE THAT THIS BUSINESS CHANGED FROM TROLLEY TO BUS WITHIN TWO
YEARS OF THE END OF THE BASE PERIOD AND THAT MANAGEMENT CHANGED FROM
LESSEE TO LESSOR BUT WE THINK THE FACT OF TRANSPORTATION IN THE SAME
COMMUNITIES FOR MORE THAN A QUARTER OF A CENTURY SUFFICED TO GIVE THE
OPERATION THE CLASSIFICATION OF AN ESTABLISHED BUSINESS.  HERE
DIFFERENT METHODS OF OPERATION OR NORMAL CHANGES IN THE EXECUTIVE
STAFFS DO NOT SEEM SUFFICIENT TO INTERFERE WITH THE PROBATIVE VALUE OF
PAST EXPERIENCE.  FRANCHISES AND PROPERTY OF STREET RAILWAYS AND BUS
LINES ARE DIFFICULT OF APPRAISAL.  NOTHING IS MORE INDICATIVE OF THEIR
VALUE FOR LEASE OR SALE OF THE FEE THAN PAST EARNINGS.  IF WE WERE TO
ADOPT THE VIEW THAT THE INTEREST CONVEYED IS A DEFEASIBLE FEE,  FN13
ITS DEFEASANCE DEPENDENT UPON A CONDITION SUCH AS NONPAYMENT OF ANNUAL
INSTALMENTS OF THE PURCHASE PRICE, THE SAME DIFFICULTIES EXIST.  THE
UNKNOWN SUBTRAHEND WOULD BE THE PRESENT VALUE, INSTEAD OF THE RENTAL
VALUE.  EVIDENCE OF VALUE WOULD BE MADE UP OF THE ITEMS OF PROOF.  ONE
OF THE MOST IMPORTANT OF THESE, IN THE CASE OF PROPERTY SUCH AS HERE
INVOLVED, WOULD BE PAST EARNINGS. 

THIS COURT HAS SUSTAINED RECOVERIES FOR FUTURE PROFITS OVER FOUR
YEARS BASED SOLELY UPON EVIDENCE OF THE PROFITS OF AN ESTABLISHED
BUSINESS FOR THE PAST FOUR YEARS.  WE THERE APPROVED AN INSTRUCTION
WHICH TOLD THE JURY, "DAMAGES ARE NOT RENDERED UNCERTAIN BECAUSE THEY
CANNOT BE CALCULATED WITH ABSOLUTE EXACTNESS.  IT IS SUFFICIENT IF A
REASONABLE BASIS OF COMPUTATION IS AFFORDED, ALTHOUGH THE RESULT BE
ONLY APPROXIMATE."  FN14 

THE WAYS COMPENSATORY DAMAGES MAY BE PROVEN ARE MANY.  THE INJURED
PARTY IS NOT TO BE BARRED FROM A FAIR RECOVERY BY IMPOSSIBLE
REQUIREMENTS.  THE WRONGDOER SHOULD NOT BE MULCTED, NEITHER SHOULD HE
BE PERMITTED TO ESCAPE UNDER COVER OF A DEMAND FOR NONEXISTENT
CERTAINTY.  FN15  DAMAGES FOR BREACH OF THE LEASE WERE IN CONTEMPLATION
OF THE PARTIES WHEN THE CONTRACT WAS MADE.  FN16 THE LEASE CONTAINED A
COVENANT OF REENTRY WITHOUT PREJUDICE TO RIGHT OF ACTION FOR ARREARS OF
RENT OR BREACH OF COVENANTS.  THE PROVISION IN THE BANKRUPTCY ACT GIVES
A NEW RIGHT OF RECOVERY IN BANKRUPTCY ONLY.  THIS RIGHT OF RECOVERY IS
AN UNSECURED CLAIM OF THE CHARACTER OF A CLAIM FOR A DEFICIENCY ABOVE
THE VALUE OF INADEQUATE COLLATERAL. 

CERTAINTY IN THE FACT OF DAMAGE IS ESSENTIAL.  CERTAINTY AS TO THE
AMOUNT GOES NO FURTHER THAN TO REQUIRE A BASIS FOR A REASONED
CONCLUSION.  FN17  THE CERTAINTY OF THE EVIDENCE AS TO DAMAGES FOR
REJECTION OF A LEASE DEPENDS UPON THE SAME TESTS AS IN OTHER SITUATIONS
WHERE DAMAGES ARE DIFFICULT OF PROOF.  THIS COURT, RECENTLY, IN AN
INFRINGEMENT CASE  FN18  WAS REQUIRED TO APPRAISE THE VALUE OF OPINION
EVIDENCE AS TO THE PART OF PROFITS ATTRIBUTABLE TO THE USE OF A PIRATED
PLAY, AN OBVIOUSLY ELUSIVE FACT.  NO EXPERT THOUGHT ANY GREATER
PERCENTAGE THAN TEN SHOULD BE ATTRIBUTED TO THE PLAY.  THE LOWER COURT
ALLOWED TWENTY SO THAT THE AWARD MIGHT BY NO POSSIBILITY BE TOO SMALL. 
WE APPROVED BECAUSE "WHAT IS REQUIRED IS NOT MATHEMATICAL EXACTNESS BUT
ONLY A REASONABLE APPROXIMATION.  THAT, AFTER ALL, IS A MATTER OF
JUDGMENT  ...  "    SATISFACTORY EVIDENCE WAS PRESENTED FOR THE THREE
YEARS OF ACTUAL OPERATION OF THE PROPERTIES COVERED BY THIS LEASE.  WE
THINK THAT PRIOR EARNINGS OF THE SAME PROPERTY OVER FOURTEEN YEARS WAS
A FAIR BASE TO USE TO PROJECT THE ESTIMATE OF THE EARNINGS FOR THE
EIGHT YEARS OF FUTURE OPERATION.  THE FAILURE TO PRODUCE FURTHER
EVIDENCE, EITHER THROUGH EXPERTS OR TRANSPORTATION SURVEYS, WAS NOT
FATAL TO RESPONDENT'S CASE, EVEN THOUGH SUCH EVIDENCE IS ADMISSIBLE. 
WE SEE NO REASON TO DISAGREE WITH THE CONCLUSION OF THE CIRCUIT COURT
OF APPEALS THAT UNDER THE EVIDENCE PRESENTED THE DAMAGES FOR EIGHT
YEARS MIGHT BE PREDICTED WITH A "FAIR DEGREE OF CERTAINTY."  AFFIRMED. 

FN1  THE LEASE ORIGINALLY COVERED ADDITIONAL PROPERTIES, BUT AS TO
THESE THE DEBTOR NO LONGER HAD AN INTEREST. 

FN2  CONNECTICUT RAILWAY & LIGHTING CO. V. PALMER, 305 U.S. 493,
504. 

FN3  TO FILL OUT THE DATA PETITIONER CALCULATED THE PROPORTIONATE
RENT RESERVED AND THE ACTUAL EARNINGS FOR THE SHORT PERIOD BETWEEN THE
DATE OF REJECTION, DECEMBER 17, 1935, AND JANUARY 1, 1936. 

FN4  SEE ANOTHER NEW HAVEN LONG TERM LEASE, IN RE NEW YORK, N.H. &
H.R. CO., 30 F.SUPP.  541, WHERE EVIDENCE OF THIS KIND APPEARS. 

FN5  THE PRECISENESS OF THIS FIGURE AS TO THE AMOUNT OF DAMAGE IS
ILLUSORY.  IT IS OBTAINED BY ACCEPTING ESTIMATED INTEREST RATE AND
AVERAGE EARNINGS FOR EIGHT YEARS IN THE FUTURE, REDUCED TO PRESENT CASH
VALUE, AS SHOWN BY RESPONDENT ON A TABLE COVERING FORTY YEARS AND
DEDUCTING THIS FROM THE AGREED RENT, DISCOUNTED. 

FN6  NEARLY FORTY THOUSAND MILES OF ROAD ARE LEASED BY CLASS I
RAILROADS FROM 292 LESSORS.  CLASS I ROADS OPERATE OVER 93 PER CENT OF
ALL RAILROAD MILEAGE.  LEASED PROPERTY REPRESENTS OVER 15 PER CENT OF
THIS TOTAL.  OVER FOUR BILLION DOLLARS IS INVESTED IN RAILROAD PROPERTY
UNDER LEASE.  TABLES 1, 129, 156 AND 162.  STATISTICS OF RAILWAYS IN
THE UNITED STATES 1938.  SEE MECK & MASTEN, RAILROAD LEASES AND
REORGANIZATION, 49 YALE LAW JOURNAL 626. 

FN7  TAX CASES:  IN MANY TAX CASES LONG-TERM LEASES HAVE BEEN VALUED,
THOUGH FREQUENTLY WITHOUT ANY STATEMENT OF THE EVIDENCE OR METHOD
USED.  NORTHERN HOTEL CO., 3 B.T.A. 1099, 1102; NEWMAN THEATRE CO., 4
B.T.A. 390; L.S. DONALDSON CO., 12 B.T.A. 271; A.H. WOODS THEATRE CO.,
12 B.T.A. 827; CONSOLIDATED INVESTMENT CO., 13 B.T.A. 1252; HOTEL
WISCONSIN REALTY CO., 16 B.T.A. 334; JAMES BLDG. CO., 22 B.T.A. 658;
MARTHA REALTY CO., 22 B.T.A. 342, 344; NEW YORK EX REL. DELAWARE &
HUDSON CANAL CO. V. FEITNER, 61 APP. DIV. 129; 70 N.Y.S. 500; APPEAL
TAX COURT V. WESTERN MARYLAND R. CO., 50 MD. 274, 298; PHILADELPHIA, W.
& B.R. CO. V. APPEAL TAX COURT, 50 MD. 397; NEW YORK EX REL. GORHAM
MFG. CO. V. STATE TAX COMM'N, 197 APP. DIV. 852; 189 N.Y.S. 241. 
EMINENT DOMAIN CASES:  MATTER OF THE CITY OF NEW YORK:  BEERS V.
SCHLESSINGER, 120 APP. DIV. 700; 105 N.Y.S. 779; IN RE PARK SITE, 247
MICH. 1; 225 N.W. 498.  CONTRACT CASES:  BONDY V. HARVEY, 218 APP. DIV.
126; 217 N.Y.S. 877; WILLIAMS V. BURRELL, 1 C.B. 402. 

FN8  E.G. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY
REORGANIZATION, 239 I.C.C. 337, 351, 386, 387, 389, 453; IN RE CHICAGO,
MILWAUKEE, ST. PAUL & PACIFIC R. CO., 36 F.SUPP.  193, 205 ET SEQ.;
SAME, 239 I.C.C. 485, 537, 553; ERIE RAILROAD COMPANY REORGANIZATION,
239 I.C.C. 653, 685, 689. 

FN9  2 SEDGWICK, DAMAGES, 9TH ED., SEC. 610. 

FN10  CF. RIDINGS V. JOHNSON, 128 U.S. 212, 218; UNITED STATES V. RIO
GRANDE IRRIGATION CO., 184 U.S. 416, 423. 

FN11  STORY PARCHMENT CO. V. PATERSON CO., 282 U.S. 555, 563; EASTMAN
KODAK CO. V. SOUTHERN PHOTO CO., 273 U.S. 359, 379; ECKINGTON & S.H.
RY. CO. V. MCDEVITT, 191 U.S. 103, 112, 113; CF. DICTA IN UNITED STATES
V. BEHAN, 110 U.S. 338, 344; SEE RESTATEMENT OF CONTRACTS, SEC. 331,
PARTICULARLY COMMENT (A); UNITED STATES TRUST CO. V. O'BRIEN, 143 N.Y.
284, 290; 38 N.E. 266; BALL V. PARDY CONSTRUCTION CO., 108 CONN. 549,
551; 143 A. 855; COMMONWEALTH TRUST CO. V. HACHMEISTER LIND CO., 320
PA. 233; 181 A. 787; 1 SEDGWICK, DAMAGES, 9TH ED., SEC. 170(A) ET SEQ.;
1 SUTHERLAND, DAMAGES, 4TH ED., SEC. 67. 

FN12  5 WILLISTON, CONTRACTS, REV. ED. SEC. 1346 A; BAGLEY V. SMITH,
10 N.Y. 489, 498; DICKINSON V. HART, 142 N.Y. 183, 188; 36 N.E. 801;
MACAN V. SCANDINAVIA BELTING CO., 264 PA. 384, 392; 107 A. 750;
COMMONWEALTH TRUST CO. V. HACHMEISTER LIND CO., 320 PA. 233, 242; 181
A. 787. 

FN13  OCEAN GROVE CAMP MEETING ASSN. V. REEVES, 79 N.J.L. 334, 338
39; 75 A. 782. 

FN14  EASTMAN KODAK CO. V. SOUTHERN PHOTO CO., 273 U.S. 359, 379. 

FN15  STORY PARCHMENT CO. V. PATERSON CO., 282 U.S. 555, 564, 565;
EASTMAN KODAK CO. V. SOUTHERN PHOTO CO., 273 U.S. 359, 379; HETZEL V.
BALTIMORE & OHIO R. CO., 169 U.S. 26, 37, 38. 

FN16  HADLEY V. BAXENDALE, 9 EXCH.  341. 

FN17  STORY PARCHMENT CO. V. PATERSON CO., 282 U.S. 555, 562, 563; 1
SEDGWICK, DAMAGES, 9TH ED., SEC. 170; UNITED STATES TRUST CO. V.
O'BRIEN, 143 N.Y. 284, 289; 38 N.E. 266. 

FN18  SHELDON V. METRO-GOLDWYN CORP., 309 U.S. 390, 406-408. 

MR. JUSTICE FRANKFURTER, DISSENTING: 

ON JANUARY 3, 1939, THIS COURT UNANIMOUSLY DECIDED THAT THE "ACTUAL
DAMAGE OR INJURY" CAUSED THE LESSOR THROUGH THE DISAFFIRMANCE BY THE
TRUSTEES OF THE NEW HAVEN OF THE LEASE NOW IN CONTROVERSY WAS A
PROVABLE CLAIM.  CONNECTICUT RY. V. PALMER, 305 U.S. 493.  IF CONGRESS
HAD INTENDED TO RULE OUT THE LEGAL PROVABILITY OF A CLAIM FOR DAMAGES
ARISING THROUGH THE DISAFFIRMANCE OF WHAT REMAINS OF A 999-YEAR LEASE
IT COULD EASILY HAVE DONE SO, INSTEAD OF PROVIDING FOR PROOF OF THE
DAMAGES FLOWING FROM THE TERMINATION OF SUCH AN UNEXPIRED LEASE.  AND
IF, UPON THE PRIOR CONSIDERATION OF THE STATUS OF THIS VERY LEASE, THIS
COURT HAD INTENDED TO RULE THAT LOSS DUE TO THE DISAFFIRMANCE OF THE
UNEXPIRED TERM OF 969 YEARS IS IN THE NATURE OF THINGS BEYOND RATIONAL
PROOF, IT SURELY WOULD NOT HAVE TAKEN TWELVE PAGES TO AVOID SAYING SO.
BOTH CONGRESS AND THIS COURT HAVE THUS SPONSORED THE CONVICTION THAT
PROOF OF SOME DAMAGE IS NOT OUTSIDE THE ADJUDICATORY PROCESS. 

BUT WHAT IS TO BE ASSESSED IS THE VALUE OF A TERMINATED LONG-TERM
LEASE AND NOT THE VALUE OF AN INCLUDED SHORTTERM.  THEREFORE, NEITHER
THE DECISION OF THE DISTRICT COURT NOR THAT OF THE CIRCUIT COURT OF
APPEALS IN REVERSING IT SEEMS TO ME SATISFACTORY.  ALTHOUGH THE TWO
COURTS REACHED CONTRADICTORY CONCLUSIONS, THEIR VIEWS APPEAR TO SUFFER
FROM THE SAME INTRINSIC VICE.  STARTING WITH MAN'S INABILITY TO PIERCE
INTO A FUTURE OF 969 YEARS, BOTH COURTS DEEMED THE PRESENT VALUE OF A
LEASE RUNNING FOR SUCH A PERIOD BEYOND CALCULABLE FORECAST.  THEREFORE,
JUDGE HINCKS SAID IN EFFECT, WHEN AN END IS PUT TO THE BENEFITS
ACCRUING FROM SUCH A LEASE, THE LOSS TO THE LESSOR CANNOT BE TRANSLATED
INTO DOLLARS AND CENTS.  JUDGE PATTERSON, ON THE OTHER HAND, TREATED
THE LEASE AS THOUGH IT WERE A LEASE FOR AN ASCERTAINABLE, INCLUDED
SHORT TERM, AND DEEMED ELEVEN YEARS AS THE LIMIT FOR SURE JUDGMENT. 
SINCE THE LEASE IS NOT A SHORT-TERM LEASE, IT IS, ACCORDING TO THE
DISTRICT COURT, NOTHING FOR PURPOSE OF GIVING RISE TO DAMAGES.  SINCE
THE LEASE IS FOR TOO LONG A TERM, WE WILL SNIP OFF AN INCLUDED SHORT
TERM AS THOUGH IT WERE A SHORT-TERM LEASE, CONCLUDED THE CIRCUIT COURT
OF APPEALS. 

BOTH THESE DISPOSITIONS RESULT IN AVOIDANCE, THROUGH OVER
SIMPLIFICATION, OF AN EXTREMELY COMPLICATED PROBLEM WHICH CONGRESS HAS
PUT UP TO THE COURTS.  SINCE NEITHER THE DISTRICT COURT NOR THE CIRCUIT
COURT OF APPEALS APPLIED THE DIRECTIONS OF THIS COURT IN CONNECTICUT
RY. V. PALMER, SUPRA, HOWEVER DIFFICULT AND SUBTLE THEY MAY HAVE BEEN,
NEITHER DISPOSITION SHOULD STAND.  THE CASE SHOULD BE SENT BACK TO THE
DISTRICT COURT WHERE AN OPPORTUNITY SHOULD BE GIVEN TO MAKE PROOFS
APPROPRIATE TO THE NATURE OF THE PROBLEM TO BE SOLVED, NAMELY,
ASCERTAINMENT ON A TOUGH BUSINESS BASIS OF THE DAMAGE THAT SPRANG INTO
EXISTENCE FROM THE DISAFFIRMANCE OF THE REMAINING 969-YEAR TERM RATHER
THAN FROM THE DISAFFIRMANCE OF A SUPPOSED 11-YEAR LEASE. 

MR. JUSTICE DOUGLAS, DISSENTING: 

MR. JUSTICE BLACK AND I ARE OF THE VIEW THAT RESPONDENT'S PROOF WAS
WHOLLY INADEQUATE TO ESTABLISH UNDER SEC. 77(B) OF THE BANKRUPTCY ACT
THE EXTENT OF ITS "ACTUAL DAMAGE OR INJURY" AS A RESULT OF THE
REJECTION OF THIS LEASE, SINCE THE EVIDENCE OFFERED FAILED TO SHOW WHAT
WAS "THE PRESENT VALUE OF THE RENT RESERVED LESS THE PRESENT RENTAL
VALUE OF THE REMAINDER OF THE TERM" - THE MEASURE OF DAMAGES
ESTABLISHED FOR THIS VERY CLAIM IN CONNECTICUT RAILWAY & LIGHTING CO.
V. PALMER, 305 U.S. 493, 504. 

WE ARE DEALING HERE WITH AN UNEXPIRED TERM OF 969 YEARS.  BUT THE
CLAIM ALLOWED IS FOR A TERM WHICH DOES NOT COVER THAT SPAN.  IT COVERS
ONLY AN UNEXPIRED TERM OF 11 YEARS.  FOR THE REASONS STATED IN KUEHNER
V. IRVING TRUST CO., 299 U.S. 445, WE THINK THAT IF CONGRESS HAD
PROVIDED IN SEC. 77 THAT LESSORS SHOULD NOT BE ALLOWED TO PROVE FOR
DAMAGES IN EXCESS OF AN 11 YEAR UNEXPIRED TERM, THE LIMITATION WOULD BE
CONSTITUTIONAL.  SUCH LEGISLATION WOULD HAVE A FIRM CONSTITUTIONAL
BASIS IN THE BANKRUPTCY POWER.  BUT THE MAKING OF SUCH A LIMITATION IS
A LEGISLATIVE, NOT A JUDICIAL, FUNCTION.  IN VIEW OF THE WORDING OF
SEC. 77(B) WE DO NOT THINK THIS COURT HAS THE POWER TO SUBSTITUTE THE
VALUE OF ONE PROPERTY INTEREST FOR THE VALUE OF AN ENTIRELY DIFFERENT
ONE.  SEC. 77(B) SAYS THAT "ACTUAL DAMAGE OR INJURY" SHALL BE ALLOWED. 
YET IT WOULD BE A MERE COINCIDENCE IF "ACTUAL DAMAGE OR INJURY" FOR AN
11 YEAR TERM WERE THE "ACTUAL DAMAGE OR INJURY" FOR A 969 YEAR TERM. 
HENCE THE DISTRICT COURT CORRECTLY REFUSED TO SUBSTITUTE ANY LESSER
TERM FOR THE ONE HERE IN QUESTION.  NO AUTHORITY, WE BELIEVE, CAN BE
FOUND WHICH CAN JUSTIFY SPECULATING A CLAIMANT INTO A LOSS THROUGH THE
EASY ASSUMPTION THAT HE HAD A PROPERTY INTEREST WHICH IN FACT HE DID
NOT HAVE. 

THERE IS A RELATED OBJECTION TO THE ALLOWANCE OF THIS CLAIM.  IT IS
PLAIN THAT ANY ATTEMPTED COMPUTATION OF FUTURE RENTAL VALUES OF THIS
PROPERTY FOR THE NEXT 969 YEARS WOULD AT BEST BE A MERE FLIGHT "INTO
THE REALM OF PURE SPECULATION" WHICH THIS COURT CONDEMNED WHEN THE CASE
WAS HERE BEFORE.  305 U.S. 493, 505.  FROM OUR POINT IN HISTORY 969
YEARS HENCE IS PERPETUITY.  IT COVERS A LONGER SPAN THAT FROM 1941 A.D.
TO 500 YEARS BEFORE COLUMBUS DISCOVERED AMERICA.  TO PROJECT PAST
EARNINGS OF A PRESENT ENTERPRISE THROUGH SUCH VICISSITUDES OF TIME
WOULD BE TO ASSUME A STATIC QUALITY IN SOCIETY WHICH EVEN A DECADE OF
HISTORY WOULD DISPROVE.  THIS WAS TACITLY ADMITTED BY RESPONDENT BEFORE
THE DISTRICT COURT.  THE CIRCUIT COURT OF APPEALS RECOGNIZED THE
IMPOSSIBILITY OF SUCH A TASK.  IT THEREFORE PRODUCED A SUBSTITUTE
METHOD.  IT COMPUTED THE ANNUAL ESTIMATED VALUES FOR EACH FUTURE YEAR
FOR AS LONG A PERIOD AS IT COULD VENTURE AN ESTIMATE.  THAT, HOWEVER,
MISSES THE NATURE OF THE PROBLEM.  UNDER THE RULE LAID DOWN BY THIS
COURT, THE GREAT UNKNOWN IN SUCH CASES IS THE "PRESENT RENTAL VALUE OF
THE REMAINDER OF THE TERM."  THE ACTUAL DAMAGE, IF ANY, TO THE LESSOR
IS SUFFERED ALL AT ONCE.  FOR SEC. 77, LIKE FORMER SEC. 77B (CITY BANK
FARMERS TRUST CO. V. IRVING TRUST CO., 299 U.S. 433, 440) EXTENDS THE
DOCTRINE OF ANTICIPATORY BREACH (CENTRAL TRUST CO. V. CHICAGO
AUDITORIUM ASSN., 240 U.S. 581) TO LEASES OF REALTY.  WHERE THERE IS
SUCH A BREACH "COMPENSATION THEREFOR MAY BE RECOVERED AT ONCE FOR THE
WHOLE LOSS, THOUGH THE CONSEQUENCE BE A CONTINUING ONE, IF THE FUTURE
DAMAGE RESULTING THEREFROM CAN BE ASCERTAINED WITH CERTAINTY."  JAMES
V. KIBLER'S ADM'R, 94 VA. 165, 173; 26 S.E. 417.  THE LIABILITY OF THE
LESSEE FOR DAMAGES IS SINGLE, NOT MULTIPLE.  BUT SEC. 77(B), UNLIKE
SOME STATE RULES (HERMITAGE CO. V. LEVINE, 248 N.Y. 333; 162 N.E. 97),
CALLS FOR AN ASCERTAINMENT OF THE FULL DEFICIENCY NOT AT THE END OF THE
TERM BUT ON REJECTION OF THE LEASE. 

LESSORS CLAIMING DAMAGES UNDER SEC. 77(B), LIKE CLAIMANTS IN ORDINARY
BANKRUPTCY PROCEEDINGS (RASMUSSEN V. GRESLY, 77 F.2D 252, 254; WHITNEY
V. DRESSER, 200 U.S. 532), CARRY THE BURDEN OF ESTABLISHING THE
EXISTENCE AND AMOUNT OF THE CLAIM.  THEIR PROOF MUST SATISFY THE "USUAL
RULES AS TO THE MEASURE OF DAMAGES"; THEY "MUST SHOW DAMAGES TO
REASONABLE CERTAINTY."  CONNECTICUT RAILWAY & LIGHTING CO. V. PALMER,
SUPRA, AT P. 505.  WHILE ABSOLUTE CERTAINTY IS NOT REQUIRED WHERE A
CLAIM FOR DAMAGES IS SOUGHT (HETZEL V. BALTIMORE & OHIO R. CO., 169
U.S. 26, 37), THE EVIDENCE MUST BE SUFFICIENT FOR THE EXERCISE OF AN
INFORMED JUDGMENT AS TO THE AMOUNT.  WHERE THE EXISTENCE OR EXTENT OF
THE DAMAGE IS A MATTER OF MERE CONJECTURE OR GUESSWORK, THE CLAIM WILL
BE DENIED.  PENNSYLVANIA STEEL CO. V. NEW YORK CITY RY. CO., 198 F.
721, 759.  WHEN THE INSTANT CASE WAS HERE BEFORE, THE PENNSYLVANIA
STEEL CO. CASE WAS CITED FOR THE STATEMENT, "THE DIFFICULTIES OF PROOF
ARE WELL RECOGNIZED."  305 U.S. AT 504.  IN THE PENNSYLVANIA STEEL CO.
CASE DAMAGES FOR BREACH OF A LEASE WITH AN UNEXPIRED TERM OF 995 YEARS
WERE DISALLOWED IN RECEIVERSHIP PROCEEDINGS, THE COURT SAYING (P. 759):
"WHO COULD FORETELL THE RESULTS OF OPERATION BY THE OWNER, THE GROWTH
OF THE CITY, IMPROVEMENTS IN MOTIVE POWER, OR REDUCTIONS IN COST?  WHO
COULD FORESEE WHETHER A LEASE COULD BE MADE TO ANOTHER RAILROAD COMPANY
OR THE TERMS THEREOF?  ...  THE CLAIM FOR SUCH DAMAGES WAS PROPERLY
DISALLOWED BECAUSE IT WAS UNCERTAIN IN AMOUNT AND THERE WAS NO METHOD
OF MAKING IT CERTAIN." 

THOSE OBSERVATIONS ARE PECULIARLY APT WHEN APPLIED TO THE FACTS IN
THIS RECORD.  HERE THERE IS NO EVIDENCE AS TO MARKET VALUE.  CF.
METROPOLITAN BLDG. CO. V. KING COUNTY, 62 WASH. 409; 113 P. 1114.  NOR
HAS THERE BEEN ANY FAIR, BONA FIDE RELETTING.  CF. JAMES V. KIBLER'S
ADM'R, SUPRA. IN THIS RECORD THERE IS NO SUBSTANTIAL EVIDENCE AS TO
VALUE EXCEPT ESTIMATED PAST EARNINGS.  USEFUL AS PAST EARNINGS MAY BE
IN CERTAIN SITUATIONS WHERE A SHORT AND LIMITED FORECAST IS BEING MADE
(EASTMAN KODAK CO. V. SOUTHERN PHOTO MATERIALS CO., 273 U.S. 359) THEY
ARE INDEED TREACHEROUS WHEN USED AS THE SOLE BASIS FOR APPRAISAL.  FN1
THE VALUE OF A GOING ENTERPRISE IS DEPENDENT ON EARNINGS.  A FORECAST
OF EARNINGS MUST TAKE INTO CONSIDERATION THE NUMEROUS AND VARIABLE
FACTORS WHICH AFFECT INCOME-PRODUCING CAPACITY.  FN2  THOSE FACTORS
VARY FROM BUSINESS TO BUSINESS.  HERE WE ARE DEALING WITH PASSENGER
TRANSPORTATION BY BUS.  CERTAINLY ANY FORECAST OF EARNINGS SHOULD
EMBRACE AN EXPERT STUDY OF PROBLEMS PECULIAR TO THIS FIELD - THE
TERRITORY SERVED, POPULATION TRENDS, COMPETITIVE CONDITIONS, THE RECORD
OF COMPANIES IN COMPARABLE TERRITORY, AND THE LIKE.  ANY ESTIMATE WHICH
WHOLLY IGNORES SUCH FACTORS AND RELIES ENTIRELY ON PAST EARNINGS
IGNORES THE VERY CONDITIONS WHICH ALONE CAN IMPEACH OR SUSTAIN THE
CREDIBILITY OF PAST EARNINGS AS A MEASURE OF FUTURE EARNINGS.  FN3  CF.
HAMMOND LUMBER CO. V. COUNTY OF LOS ANGELES, 104 CAL. APP. 235; 285 P.
896. 

THE PROBLEM OF DETERMINING THE PRESENT VALUE OF THIS UNEXPIRED TERM
OF 969 YEARS IS NOT DIFFERENT FROM THE PROBLEM OF VALUING A FEE
INTEREST. 

THE FACT THAT THIS INSTRUMENT IS CALLED A "LEASE" IS NO BARRIER TO
SUCH AN APPRAISAL.  FOR, AS STATED BY THIS COURT IN UNION PACIFIC RY.
CO. V. CHICAGO.  R.I. & P.RY. CO., 163 U.S. 564, 582, WHERE A SO-CALLED
"LEASE" WAS CONSTRUED:  "WHAT IT WAS STYLED BY THE PARTIES DOES NOT
DETERMINE ITS CHARACTER OR THEIR LEGAL RELATIONS."  THE COURT HAS NOT
ONLY THE POWER BUT THE DUTY TO DETERMINE ITS REAL CHARACTER BY
CONSIDERATION OF ALL ITS INTRINSIC AND EXTRINSIC CHARACTERISTICS.  ID.,
AT P. 582.  A LEASE RENEWABLE FOREVER OR A LEASE IN PERPETUITY (AS
HERE) IS THE EQUIVALENT OF A FEE INTEREST.  IT HAS BEEN SO TREATED IN
CONNECTICUT, WHERE THE INSTANT LEASE WAS MADE, FOR PURPOSES OF
TAXATION.  CONNECTICUT SPIRITUALIST CAMP-MEETING ASSN. V. TOWN OF EAST
LYME, 54 CONN. 152, 155-156; 5 A. 849.  AS STATED IN PIPER V. MEREDITH,
83 N.H. 107, 110; 139 A. 294, "IT IS WELL SETTLED LAW THAT A PERPETUAL
LEASE UPON CONDITION CONVEYS TO THE LESSEE A DETERMINABLE OR BASE
FEE."  OR AS STATED IN WHITTELSEY V. PORTER, 82 CONN. 95, 102, A 999
YEAR LEASE IS "PRACTICALLY A FEE DEFEASIBLE ONLY UPON FAILURE TO
PERFORM CERTAIN CONDITIONS."  AND SEE MONTGOMERY V. TOWN OF BRANFORD,
107 CONN. 697, 702; 142 A. 574; WELLS V. SAVANNAH, 181 U.S. 531; LEARY
V. JERSEY CITY, 248 U.S. 328; TRUSTEES OF ELMIRA V. DUNN, 22 BARB. 
402.  THE MERE REVERSIONARY INTEREST OF THE LESSOR IN A PERPETUAL LEASE
IS SO REMOTE AND SPECULATIVE AS TO DEFY VALUATION.  SEE CHICAGO WEST
DIVISION RY. CO. V. METROPOLITAN WEST SIDE ELEVATED R. CO., 152 ILL.
519, 524-526; 38 N.E. 736.  AS STATED BY THE SUPREME COURT OF ERRORS OF
CONNECTICUT, THE REVERSION UNDER A 999 YEAR LEASE BECOMES A "MERE
IMAGINARY ESTATE."  BRAINARD V. TOWN OF COLCHESTER, 31 CONN. 407, 411. 
WHATEVER MAY BE THE PRECISE CATALOGUE OF ALL RIGHTS OF THE LESSEE
(GOODWIN V. GOODWIN, 33 CONN. 314; DENNIS APPEAL, 72 CONN. 369; 44 A.
545) AND WHATEVER MAY HAVE BEEN THE BUSINESS AND LEGAL REASONS FOR USE
OF THE 999 YEAR LEASE RATHER THAN THE ACQUISITION OF THE ASSETS BY
MERGER, CONSOLIDATION OR OTHERWISE,  FN4  IT IS PLAIN THAT FOR ALL
PRACTICAL PURPOSES THE LESSEE RETAINS SUCH FULL CONTROL AND SUCH
COMPLETE ENJOYMENT OF THE PROPERTY THAT HE MAY PROPERLY BE TREATED AS
THE OWNER.  SUCH A LEASE IS IN EFFECT "A PRACTICAL SALE."  LORD V. TOWN
OF LITCHFIELD, 36 CONN. 116, 126. 

THUS THE PROBLEM OF DETERMINING THE PRESENT VALUE OF THE UNEXPIRED
TERM OF 969 YEARS IS NO DIFFERENT FROM DETERMINING THE VALUE OF LAND IN
AN ACTION FOR BREACH OF A CONTRACT TO PURCHASE IT.  THERE THE RULE IS
THAT THE VENDOR MAY RECOVER COMPENSATION FOR HIS ACTUAL LOSS MEASURED
BY THE DIFFERENCE BETWEEN THE PRICE HE WAS TO RECEIVE  FN5  (LESS THE
AMOUNT PAID) AND THE VALUE OF THE LAND AT THE TIME OF BREACH.  3
SEDGWICK ON DAMAGES (9TH ED.)  SECS.  1023 ET SEQ; IN RE MARSHALL'S
GARAGE, 63 F.2D 759.  IN MAKING THAT VALUATION THE CONVENTIONAL RULES
GOVERNING APPRAISALS OF THE WORTH OF FEE INTERESTS WOULD BE
APPLICABLE.  1 BONBRIGHT, VALUATION OF PROPERTY, CHS.  XIII, XIV. 

IN SUM, WHATEVER RULE OF DAMAGES IS APPLIED TO THIS SITUATION, THE
PROOF SUBMITTED IS NOT ADEQUATE FOR APPRAISAL OF THE PROPERTY INTEREST
HERE INVOLVED WITHOUT VIOLATING THE WELL-ESTABLISHED RULE AGAINST
ALLOWANCE OF SPECULATIVE DAMAGES, ANNOUNCED BY THIS COURT ON THE FIRST
APPEAL.  NO REASONS OF POLICY HAVE BEEN SUGGESTED WHICH JUSTIFY
DEVIATION FROM THOSE WELL-ESTABLISHED PRINCIPLES.  THE FACT THAT THE
"LEASE" EXTENDS OVER A PERIOD OF ALMOST TEN CENTURIES ACCENTUATES THE
NECESSITY FOR CLOSE ADHERENCE TO THE RULE, NOT FOR ITS RELAXATION. 

FN1  1 BONBRIGHT, VALUATION OF PROPERTY, C. XII. 

FN2  BONBRIGHT, OP. CIT., SUPRA, NOTE 1; DEWING, FINANCIAL POLICY OF
CORPORATIONS, PP. 319 ET SEQ.; GRAHAM & DODD, SECURITY ANALYSIS, C. I;
KNISKERN, REAL ESTATE APPRAISAL & VALUATION, PP. 235 ET SEQ.; MASON,
THE STREET RAILWAY IN MASSACHUSETTS, C. 6; MCMICHAEL, LONG & SHORT TERM
LEASEHOLDS. 

FN3  IN THE MATTER OF BREEZE CORPORATIONS, INC., 3 S.E.C.D. & R. 709;
IN THE MATTER OF MINING & DEVELOPMENT CORP., 1 S.E.C.D. & R. 786. 

FN4  MCMICHAEL, OP. CIT., SUPRA, NOTE 2, C. I; MECK & MASTEN,
RAILROAD LEASES AND REORGANIZATION, 49 YALE L.J. 626; NIEHUSS & FISHER,
PROBLEMS OF LONG TERM LEASES, 2 MICH. BUS.  STUDIES, PAMPHLET 8; THE
LONG TERM GROUND LEASE:  A SURVEY, 48 YALE L.J. 1400. 

FN5  FUTURE PAYMENTS WOULD OF COURSE BE REDUCED TO PRESENT WORTH. 
BONDY V. HARVEY, 218 APP. DIV. 126; 217 N.Y.S. 877. 
..END :









R.R. COMMISSION V. OIL CO., 311 U.S. 570 


NO. 218.  ARGUED DECEMBER 12, 13, 1940.  - DECIDED JANUARY 6, 1941.  -
REVERSED. 


1.  AN ORDER OF THE TEXAS RAILROAD COMMISSION LIMITING THE DAILY
ALLOWABLE PRODUCTION OF THE EAST TEXAS OIL FIELD AND PROVIDING A METHOD
FOR ITS DISTRIBUTION AMONG THE SEVERAL WELL OWNERS, HELD: 

(1)  CONSISTENT WITH THE FOURTEENTH AMENDMENT, P. 572. 

(2)  NOT SO CLEARLY A VIOLATION OF A STATE STATUTE, VERNON'S TEXAS
ANNOTATED CIVIL STATUTES, ART. 6049C, SEC. 7, AS TO WARRANT AN
INJUNCTION IN THE FEDERAL COURTS, P. 577, 

AS APPLIED TO AN OPERATING COMPANY WHICH CHALLENGED THE BASIS OF THE
FORMULA AND CLAIMED THAT BY ITS MINIMUM AND MAXIMUM "ALLOWABLES" IT
UNDULY FAVORED WELLS OF SMALL CAPACITY AND IMPAIRED THE FUTURE
PRODUCTIVITY OF WELLS IN HIGH-PRODUCING AND "THINLY" DRILLED AREAS. 
CF., RAILROAD COMMISSION V. ROWAN & NICHOLS OIL CO., 310 U.S. 573;
POST, P. 614. 

2.  IN MATTERS OF THIS KIND THE DUE PROCESS CLAUSE DOES NOT REQUIRE
THAT THE JUDGMENT OF AN EXPERT STATE COMMISSION BE SUPPLANTED BY THE
INDIVIDUAL VIEW OF JUDGES BASED ON THE CONFLICTING TESTIMONY,
PROPHECIES AND IMPRESSIONS OF EXPERT WITNESSES.  P. 576. 

RAILROAD COMMISSION OF TEXAS ET AL. V. ROWAN & NICHOLS OIL CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF TEXAS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES, WHICH
ENJOINED THE ENFORCEMENT OF AN ORDER REGULATING PRODUCTION OF OIL IN
THE EAST TEXAS FIELD. 

MR. DAN MOODY, WITH WHOM MR. RICE M. TILLEY WAS ON THE BRIEF, FOR
APPELLEE. 

THE DECISION OF THIS COURT IN 310 U.S. 573, WAS NOT DECISIVE OF THE
ISSUES IN THIS CASE.  THE ORDER IN THAT CASE WAS MATERIALLY DIFFERENT. 
THE ORDER HERE ATTACKED SUBJECTS THE APPELLEE TO A GREATER DEGREE OF
DISCRIMINATION, IN THAT IT RECEIVES A SMALLER PERCENTAGE OF THE
ALLOWABLE OIL UNDER THIS ORDER THAN UNDER THE OLD ORDER IN THE FIRST
CASE. 

UNDER TEXAS LAW THE OWNER OF LAND OWNS THE OIL AND GAS IN PLACE
THEREUNDER, AND UNDER THE CONVENTIONAL FORM OF OIL AND GAS LEASE, SUCH
AS IS INVOLVED IN THIS CASE, THE LESSEE OWNS THE OIL AND GAS IN PLACE,
AND IS ENTITLED TO A FAIR CHANCE TO RECOVER THE SAME, OR ITS EQUIVALENT
IN KIND; OR, OTHERWISE STATED, TO AN EQUAL OPPORTUNITY WITH OTHER
OPERATORS TO REALIZE FOR HIS LEASEHOLD. 

THE PRESENT ORDER OF THE COMMISSION, ALLOCATING APPROXIMATELY 75% OF
THE "ALLOWABLE" ON A PER WELL BASIS, WHICH, AS TO SUCH 75%, ADMITTEDLY
GIVES NO CONSIDERATION TO RESERVES UNDER THE RESPECTIVE LEASES, ABILITY
OF WELLS TO PRODUCE, PRESSURES, SAND CONDITIONS, OR DENSITY OF DRILLING
ON THE RESPECTIVE LEASES, IGNORES THE DIFFERENCES THAT WOULD HAVE TO BE
TAKEN INTO CONSIDERATION IN ARRIVING AT ANY REASONABLE OR EQUITABLE
DISTRIBUTION.  SUCH ORDER RESULTS IN WASTE BY CAUSING PREMATURE
ENCROACHMENT OF WATER AND LOW PRESSURE AREAS; AND IS ARBITRARY, UNJUST,
UNREASONABLE, AND CONFISCATORY.  IT OPERATES TO DENY APPELLEE THE EQUAL
PROTECTION OF THE LAW, TAKES ITS PROPERTY WITHOUT DUE PROCESS, AND
CONTRAVENES THE LAWS OF TEXAS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN CONFORMITY WITH THE REGULATORY SCHEME DEVISED BY TEXAS FOR
EXPLOITING AND SAFEGUARDING ITS OIL RESOURCES, THE RAILROAD COMMISSION
OF THAT STATE IN 1938 ISSUED AN ORDER FORMULATING A METHOD FOR
DISTRIBUTING AMONG WELL OWNERS THE TOTAL AMOUNT OF OIL WHICH IT THEN
ALLOWED TO BE PRODUCED IN THE EAST TEXAS FIELD.  THE ENFORCEMENT OF
THIS ORDER WAS ENJOINED BY LOWER FEDERAL COURTS AT THE SUIT OF THE
COMPLAINANT IN THE PRESENT CASE, ROWAN & NICHOLS OIL COMPANY, 28
F.SUPP.  131; 107 F.2D 70.  TO AVOID THE DISLOCATION RESULTING FROM
THIS JUDICIAL FRUSTRATION OF ITS ORDER, THE COMMISSION, BY AN ORDER OF
SEPTEMBER 11, 1939, HAD TO DEVISE A NEW PLAN OF PRORATION.  ITS ACTION
IN DOING SO WAS AGAIN PROMPTLY CHALLENGED IN A FEDERAL DISTRICT COURT
IN TEXAS.  A DECREE ENJOINING THE COMMISSION FOLLOWED, AND AN APPEAL
FROM THAT DECREE IS THE MATTER NOW BEFORE US. JUDICIAL CODE, SECS. 238,
266, AS AMENDED, 28 U.S.C. SECS. 345, 380. 

THE CHALLENGED ORDER OF THE COMMISSION CONCEDEDLY SATISFIES ALL
PROCEDURAL REQUIREMENTS.  IT WAS PART OF A CONTINUOUS PROCESS OF
ADMINISTRATIVE RESPONSIBILITY, PRECEDED BY A SPECIFIC HEARING AFFECTING
THE IMMEDIATE SITUATION, WITH FULL OPPORTUNITY GIVEN TO THE OIL COMPANY
TO DEVELOP THE FACTS AND ARGUMENTS WHICH IT LATER RENEWED BELOW AND
HERE. 

THE COMMISSION'S ACTION NOW IN CONTROVERSY CANNOT BE SEVERED FROM THE
EARLIER ORDER WHICH IT REPLACED.  BOTH SET LIMITS, INCONTESTABLY VALID,
CHAMPLIN RFG.  CO. V. COMMISSION, 286 U.S. 210, ON THE DAILY PRODUCTION
OF THE EAST TEXAS FIELD.  IN BOTH LITIGATIONS THE OIL COMPANY CLAIMED
TO BE A VICTIM OF ILLEGALITIES IN THE METHOD OF DISTRIBUTING THIS TOTAL
ALLOWABLE PRODUCTION AMONG THE DIFFERENT CLASSES OF OIL PRODUCERS. 

SO FAR AS RELIEF IN THE FEDERAL COURTS IS CONCERNED, WE FOUND IN THE
PRIOR PHASE OF THIS CONTINUING LITIGATION THAT THE ORDER OF THE
COMMISSION WAS WITHOUT INFIRMITY.  310 U.S. 573; POST, P. 614.  IN THE
ORDER WHICH WAS THEN BEFORE US EACH WELL WAS ALLOWED 2.32 PER CENT OF
ITS HOURLY POTENTIAL PRODUCTION, EXCEPT THAT WELLS NOT CAPABLE OF
PRODUCING 20 BARRELS A DAY AT OPEN FLOW WERE, IN CONFORMITY WITH THE
MARGINAL WELL STATUTE (VERNON'S TEXAS ANNOTATED CIVIL STATUTES, ART.
6049B), ALLOWED FULL CAPACITY, AND WELLS WHICH COULD NOT PRODUCE OVER
20 BARRELS A DAY AT 2.32 PER CENT OF THEIR HOURLY POTENTIAL WERE
ALLOWED 20 BARRELS A DAY.  THE ORDER DISTRIBUTED, IN ROUND NUMBERS, A
TOTAL ALLOWABLE OF 522,000 BARRELS AS FOLLOWS:  5,250 A DAY TO 451
WELLS HAVING A CAPACITY OF LESS THAN 20 BARRELS; 380,640 TO 19,032
WELLS WHICH AT 2.32 PER CENT OF HOURLY POTENTIAL COULD NOT PRODUCE OVER
20 BARRELS; 136,610 TO 6,325 WELLS AT THE RATE OF 2.32 PER CENT OF
HOURLY POTENTIAL.  THIS ADJUSTMENT BY THE STATE'S EXPERT AGENCY OF WHAT
IN OUR FORMER OPINION WE CALLED "AS THORNY A PROBLEM AS HAS CHALLENGED
THE INGENUITY AND WISDOM OF LEGISLATURES" WAS ATTACKED ON TWO GROUNDS. 
IT WAS CLAIMED THAT AN HOURLY POTENTIAL FORMULA FATALLY OMITTED OTHER
RELEVANT FACTORS, ESPECIALLY ACRE-FEET OF SAND.  FURTHER IT WAS URGED
THAT THE MINIMUM ALLOWANCE OF 20 BARRELS, WHICH NEARLY ABSORBED THE
TOTAL PRODUCTION, CONSTITUTED AN ILLEGITIMATE DISCRIMINATION AGAINST
HIGHPRODUCING AND THINLY DRILLED AREAS.  WE REJECTED THESE ARGUMENTS AS
AN ATTEMPT TO SUBSTITUTE A JUDICIAL JUDGMENT FOR THE EXPERT PROCESS
INVENTED BY THE STATE IN A FIELD SO PECULIARLY DEPENDENT ON SPECIALIZED
JUDGMENT.  WE SAID IN EFFECT THAT THE BASIS OF PRESENT KNOWLEDGE
TOUCHING PRORATION WAS SO UNCERTAIN AND DEVELOPING, THAT SOUNDER
FOUNDATIONS ARE ONLY TO BE ACHIEVED THROUGH THE FRUITFUL EMPIRICISM OF
A CONTINUOUS ADMINISTRATIVE PROCESS.  FURTHER, THAT OUGHT NOT TO BE
STIFLED BY DRAWING FROM THE GENERALITIES OF THE CONSTITUTION ALLEGIANCE
TO ONE AS AGAINST ANOTHER SPECULATIVE ASSUMPTION EVEN THOUGH DELUSIVELY
CLOTHED IN FORMAL FINDINGS OF FACT. 

IN THE ORDER NOW BEFORE US THE COMMISSION ALLOWED A TOTAL PRODUCTION
OF 691,000 BARRELS, AND THE FORMULA OF ALLOCATION TOOK INTO
CONSIDERATION TWO OTHER FACTORS - BOTTOMHOLE PRESSURE AND THE QUALITY
OF THE SURROUNDING SAND OF THE WELLS - AS WELL AS HOURLY POTENTIAL.  BY
THIS FORMULA 514 WELLS INCAPABLE OF PRODUCING 20 BARRELS A DAY AT OPEN
FLOW ABSORBED 6,245 BARRELS, 25,456 WELLS WERE ALLOTTED A MINIMUM OF 20
BARRELS, THUS ABSORBING 509,000 BARRELS, LEAVING 176,000 BARRELS TO BE
DISTRIBUTED AMONG THESE LATTER WELLS ACCORDING TO THE NEW ALLOCATION
FORMULA.  UNDER THE FIRST ORDER, THE MINIMUM PER WELL ALLOWANCE OF 20
BARRELS ACCOUNTED FOR 98 PER CENT OF THE LIMITED PRODUCTION; UNDER THE
LATER ORDER ONLY 75 PER CENT WAS NEEDED TO SATISFY THE 20 BARREL
ALLOWANCE.  THE LEASE INVOLVED IN THIS LITIGATION WAS ALLOWED BY THE
FIRST ORDER AN OUTPUT OF 154 BARRELS A DAY, OR .029 PER CENT OF THE
TOTAL ALLOWABLE; NOW IT MAY PRODUCE 260 BARRELS A DAY, WHICH IS .037
PER CENT OF THE TOTAL.  THIS COMPARISON OF THE PRACTICAL OPERATION OF
THE TWO ORDERS EXPOSES THE EMPTINESS OF THE CLAIM THAT A CONSTITUTIONAL
LINE CAN BE DRAWN BETWEEN THEM. 

THE ACCOMMODATION OF CONFLICTING PRIVATE INTERESTS IN THE EAST TEXAS
OIL FIELD, WITH DUE REGARD TO THE PUBLIC WELFARE, IS BESET WITH
PERPLEXITIES, BOTH GEOLOGICAL AND ECONOMIC.  AS WE READ THE RECORDS IN
THESE CASES, THIS PICTURE EMERGES.  THE HUGE OIL RESOURCES OF THAT
REGION, VIEWED IN CROSS-SECTION FROM EAST TO WEST, ARE ROUGHLY
TRIANGULAR IN SHAPE.  ON THE LOWER WESTERN SIDE THE PRESSURE OF AN OIL
WATER FACE FURNISHES THE PRINCIPAL ENERGY OF THE FIELD.  AS THE OIL IS
WITHDRAWN, THE PRESSURE IS DECREASED.  THE DRIVE OF THE WATER FROM THE
WEST FORCES THE OIL EASTWARD, AND THE WESTERNMOST WELLS ARE FIRST
EXHAUSTED.  THE REDUCED PRESSURE IN THE FIELD SHORTENS THE LIFE OF THE
WELLS ON THE EXTREME EASTERN EDGE, WITH THE RESULT THAT THE WELLS
NEARER THE CENTER OF THE FIELD, LIKE THOSE OF THE ROWAN & NICHOLS
COMPANY, ARE LIKELY TO BE MOST LONG-LIVED.  THUS IT IS THAT A
PRODUCTION FORMULA DEPENDENT ON CURRENT RESERVES OF OIL IN PLACE - A
CONSIDERATION WHICH GREATLY INFLUENCED THE COURT BELOW AND WAS URGED
BEFORE US - CONTAINS ELEMENTS OF UNFAIRNESS TO WELLS ON THE EDGE OF THE
FIELD BY DISREGARDING THE MIGRATION OF OIL FROM WEST TO EAST.  OTHER
FACTORS FURTHER COMPLICATE THE SITUATION.  THE SURFACE IS OFTEN DIVIDED
INTO SMALL TRACTS, AND THE COMMISSION, ACTING UNDER THE AUTHORITY OF
THE TEXAS STATUTES, HAS PERMITTED THE DRILLING OF WELLS BY SMALL OWNERS
IN ORDER TO PREVENT PRACTICAL FORFEITURE OF THEIR INTERESTS.  SMALL
PRODUCERS HAVE INVESTMENTS IN EXISTING WELLS WITH LOW CAPACITIES, AND
THESE WELLS NEED A MINIMUM DAILY PRODUCTION SUFFICIENT TO JUSTIFY THEIR
ENTERPRISE.  IN ADDITION TO ALL THIS, ANY SCHEME OF PRORATION DULY
MINDFUL OF ALL THOSE CONSIDERATIONS, HARDLY MATHEMATICALLY
COMMENSURABLE, WHICH CONSTITUTE THE TOTAL WELL-BEING OF A SOCIETY, MUST
ASSURE THE CONTINUED OPERATION OF A SUFFICIENT NUMBER OF WELLS FOR AN
ADEQUATE EXPLOITATION OF THE STATE'S OIL RESOURCES. 

IN ACHIEVING A RECONCILIATION OF THESE TANGLED AND PARTLY CONFLICTING
AIMS, THE COMMISSION EVIDENTLY REGARDED THE 20 BARREL MINIMUM ALLOWANCE
AS A GUIDING FACTOR, TAKING ITS CUE DOUBTLESS IN PART FROM THE POLICY
UNDERLYING THE TEXAS MARGINAL WELL STATUTE, SUPRA.  THE JUSTIFICATION
FOR THE COMMISSION'S ORDER WAS ITS CONVICTION THAT THE MINIMUM
ALLOWANCE ACCELERATES THE RATE OF PRODUCTION OF THE DENSELY DRILLED
AREAS ON THE EDGES OF THE FIELD MOST SUBJECT TO LOSSES FROM THE
MIGRATION OF THE OIL, THAT SUCH ALLOWANCE IS AN APPROPRIATE INCENTIVE
TO THE DRILLING OF SMALL TRACTS, AND THAT THEREBY INVESTMENT LOSSES IN
LOW-PRODUCING WELLS ARE MINIMIZED. 

NOTHING IN THE CONSTITUTION WARRANTS A REJECTION OF THESE EXPERT
CONCLUSIONS.  NOR, ON THE BASIS OF INTRINSIC SKILLS AND EQUIPMENT, ARE
THE FEDERAL COURTS QUALIFIED TO SET THEIR INDEPENDENT JUDGMENT ON SUCH
MATTERS AGAINST THAT OF THE CHOSEN STATE AUTHORITIES.  FOR ITS OWN GOOD
REASONS TEXAS VESTED AUTHORITY OVER THESE DIFFICULT AND DELICATE
PROBLEMS IN ITS RAILROAD COMMISSION.  PRESUMABLY THAT BODY, AS THE
PERMANENT REPRESENTATIVE OF THE STATE'S REGULATORY RELATION TO THE OIL
INDUSTRY EQUIPPED TO DEAL WITH ITS EVER-CHANGING ASPECTS, POSSESSES AN
INSIGHT AND APTITUDE WHICH CAN HARDLY BE MATCHED BY JUDGES WHO ARE
CALLED UPON TO INTERVENE AT FITFUL INTERVALS.  INDEED, WE ARE ASKED TO
SUSTAIN THE DISTRICT COURT'S DECREE AS THOUGH IT DERIVED FROM AN
ORDINARY LITIGATION THAT HAD ITS ORIGIN IN THAT COURT, AND AS THOUGH
TEXAS HAD NOT AN EXPERT COMMISSION WHICH ALREADY HAD CANVASSED AND
DETERMINED THE VERY ISSUES ON WHICH THE COURT FORMED ITS OWN JUDGMENT. 
FOR IT APPEARS THAT THE COURT BELOW NULLIFIED THE COMMISSION'S ACTION
WITHOUT EVEN HAVING THE RECORD OF THE COMMISSION BEFORE IT.  WHEN WE
CONSIDER THE LIMITING CONDITIONS OF LITIGATION - THE ADAPTABILITY OF
THE JUDICIAL PROCESS ONLY TO ISSUES DEFINITELY CIRCUMSCRIBED AND
SUSCEPTIBLE OF BEING JUDGED BY THE TECHNIQUES AND CRITERIA WITHIN THE
SPECIAL COMPETENCE OF LAWYERS - IT IS CLEAR THAT THE DUE PROCESS CLAUSE
DOES NOT REQUIRE THE FEEL OF THE EXPERT TO BE SUPPLANTED BY AN
INDEPENDENT VIEW OF JUDGES ON THE CONFLICTING TESTIMONY AND PROPHESIES
AND IMPRESSIONS OF EXPERT WITNESSES. 

THIS RECORD GIVES LITTLE JUSTIFICATION FOR CONFIDENCE IN SUCH
TESTIMONY AS THE BASIS FOR JUDICIAL DOGMATISM.  TAKE, FOR INSTANCE, THE
QUESTION OF THE AMOUNT OF RECOVERABLE OIL REMAINING IN THE FIELD.  ONE
EXPERT TESTIFYING FOR THE COMPANY IN THIS CASE GAVE AN ESTIMATE OF
3,180,000,000 BARRELS, WHILE IN ANOTHER CASE A YEAR PREVIOUSLY HIS
ESTIMATE HAD BEEN A BILLION BARRELS LESS.  SIMILARLY, IN REGARD TO THE
CRUCIAL ISSUE OF THE 20 BARREL MINIMUM, ALTHOUGH IT WAS COMMON GROUND
THAT SOME MINIMUM WAS ESSENTIAL TO AVOID FATAL LOSSES OF INVESTMENT,
WHAT THAT MINIMUM SHOULD BE WAS CLEARLY NOT SHOWN TO BE CAPABLE OF
MATHEMATICAL ASCERTAINMENT, AND NO EXPERT ON BEHALF OF THE OIL COMPANY
PROVED THAT THE MINIMUM OF THE COMMISSION BORE NO RELATION TO THE
LEGISLATIVE POLICY TO BE ENFORCED BY THE COMMISSION. 

THE CONSTITUTION DOES NOT PROVIDE THAT THE FEDERAL COURTS SHALL
STRIKE A BALANCE BETWEEN ASCERTAINABLE FACTS AND DUBIOUS INFERENCES
UNDERLYING SUCH A COMPLICATED AND ELUSIVE SITUATION AS IS PRESENTED BY
THE TEXAS OIL FIELDS IN ORDER TO SUBSTITUTE THE COURT'S WISDOM FOR THAT
OF THE LEGISLATIVE BODY.  STANDARD OIL CO. V. MARYSVILLE, 279 U.S.
582.  THE REAL ANSWER TO ANY CLAIMS OF INEQUITY OR TO ANY NEED OF
ADJUSTMENT TO SHIFTING CIRCUMSTANCES IS THE CONTINUING SUPERVISORY
POWER OF THE EXPERT COMMISSION.  IN ANY EVENT, A STATE'S INTEREST IN
THE CONSERVATION AND EXPLOITATION OF A PRIMARY NATURAL RESOURCE IS NOT
TO BE ACHIEVED THROUGH ASSUMPTION BY THE FEDERAL COURTS OF POWERS
PLAINLY OUTSIDE THEIR PROVINCE AND NO LESS PLAINLY BEYOND THEIR SPECIAL
COMPETENCE.  THE FOURTEENTH AMENDMENT WAS NOT INTENDED FOR SUCH ENDS. 

THE COURT BELOW ALSO ERRED IN HOLDING THE ORDER A VIOLATION OF THE
TEXAS STATUTE REQUIRING PRORATION ON A "REASONABLE BASIS."  VERNON'S
TEXAS ANNOTATED CIVIL STATUTES, ART. 6049C, SEC. 7.  IN DENYING THE
PETITION FOR REHEARING IN THE EARLIER CASES WE HELD THAT WHATEVER
RIGHTS THE STATE STATUTE MAY AFFORD ARE TO BE PURSUED IN THE STATE
COURTS, POST, P. 614. 

THE DECREE IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT
FOR DISMISSAL OF THE COMPLAINT.  VACATED.    THE CHIEF JUSTICE, MR.
JUSTICE MCREYNOLDS, AND MR. JUSTICE ROBERTS DISSENT FOR THE REASONS
STATED IN THE DISSENTING OPINION IN RAILROAD COMMISSION OF TEXAS V.
ROWAN & NICHOLS OIL CO., 310 U.S. 573.  THEY ARE OF OPINION THAT THE
FACTS DISCLOSED BY THE RECORD DO NOT DIFFER MATERIALLY FROM THOSE FOUND
IN THE EARLIER CASE AND REQUIRE THE AFFIRMANCE OF THE JUDGMENT. 
..END :





















RAILROAD COMMISSION V. HUMBLE OIL, 311 U.S. 578 


NO. 57.  ARGUED DECEMBER 12, 1940.  - DECIDED JANUARY 6, 1941.  - DECREE
VACATED. 


DECIDED UPON THE AUTHORITY OF RAILROAD COMMISSION OF TEXAS V. ROWAN &
NICHOLS OIL CO., ANTE, P. 570. 

RAILROAD COMMISSION OF TEXAS ET AL. V. HUMBLE OIL & REFINING CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF TEXAS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS A COMPANION CASE TO RAILROAD COMMISSION V. ROWAN &
NICHOLS OIL CO., ANTE, P. 570.  THERE ARE MINOR VARIATIONS IN THE FACTS
OF THE TWO CASES, BUT NOT OF SUFFICIENT MOMENT TO CALL FOR
PARTICULARIZATION.  THE DECISION IN THE ROWAN & NICHOLS CASE IS
DECISIVE OF THIS. 

THE DECREE IS VACATED AND THE CASE IS REMANDED TO THE DISTRICT COURT
FOR DISMISSAL OF THE COMPLAINT.  VACATED. 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS
DISSENT. 
..END :



R.F.C. V. PRUDENCE GROUP, 311 U.S. 579 


NO. 69.  ARGUED DECEMBER 16, 17, 1940.  - DECIDED JANUARY 6, 1941.  -
111 F.2D 37, REVERSED. 


1.  THE PROPER PROCEDURE FOR TAKING APPEALS UNDER SEC. 250 OF THE
BANKRUPTCY ACT, AS AMENDED, FROM ORDERS MAKING OR REFUSING TO MAKE
ALLOWANCES OF COMPENSATION OR REIMBURSEMENT UNDER CHAPTER X, IS BY
FILING IN THE CIRCUIT COURT OF APPEALS, WITHIN THE TIME PRESCRIBED BY
SEC. 25(A), APPLICATIONS FOR LEAVE TO APPEAL, NOT BY FILING NOTICES OF
APPEAL IN THE DISTRICT COURT.  P. 581. 

2.  RULE 73(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH
PROVIDES THAT WHEN AN APPEAL "IS PERMITTED BY LAW FROM A DISTRICT COURT
TO A CIRCUIT COURT OF APPEALS" IT MAY BE TAKEN BY FILING WITH THE
DISTRICT COURT A NOTICE OF APPEAL, IS INAPPLICABLE TO APPEALS UNDER
SEC. 250 OF THE BANKRUPTCY ACT, WHICH MAY BE HAD ONLY IN THE DISCRETION
OF THE CIRCUIT COURT OF APPEALS.  P. 581. 

3.  ALTHOUGH APPEALS UNDER SEC. 250 MUST BE "TAKEN TO" THE CIRCUIT
COURT OF APPEALS WITHIN THE TIME PRESCRIBED BY SEC. 25(A), IT IS NOT
REQUIRED ALSO THAT THEY BE "ALLOWED" WITHIN THAT TIME.  P. 582. 

4.  AMBIGUITIES IN STATUTORY LANGUAGE SHOULD NOT BE RESOLVED SO AS TO
IMPERIL A SUBSTANTIAL RIGHT WHICH HAS BEEN GRANTED.  P. 582. 

5.  WHERE, SUBSEQUENT TO LONDON V. O'DOUGHERTY, 102 F.2D 524, AND
PRIOR TO DICKINSON INDUSTRIAL SITE V. COWAN, 309 U.S. 382, NOTICES OF
APPEALS FROM COMPENSATION ORDERS UNDER SEC. 77B OF THE BANKRUPTCY ACT
WERE FILED IN THE DISTRICT COURT, WITHIN THE APPEAL PERIOD PRESCRIBED
BY SEC. 25(A), ALTHOUGH NO APPLICATION FOR LEAVE TO APPEAL WAS MADE TO
THE CIRCUIT COURT OF APPEALS, HELD THAT THE CIRCUIT COURT OF APPEALS
WAS NOT WITHOUT JURISDICTION TO ALLOW THE APPEALS.  PP. 580, 582. 

RECONSTRUCTION FINANCE CORP. ET AL. V. PRUDENCE SECURITIES ADVISORY
GROUP ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 310 U.S. 622, TO REVIEW A JUDGMENT DISMISSING APPEALS
FROM COMPENSATION ORDERS OF THE BANKRUPTCY COURT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

DICKINSON INDUSTRIAL SITE V. COWAN, 309 U.S. 382, DECIDED ON MARCH
11, 1940, HELD THAT APPEALS FROM ALL ORDERS MAKING OR REFUSING TO MAKE
ALLOWANCES OF COMPENSATION OR REIMBURSEMENT UNDER CH. X OF THE CHANDLER
ACT (52 STAT. 840) MAY BE HAD ONLY AT THE DISCRETION OF THE CIRCUIT
COURT OF APPEALS.  PRIOR TO THAT DECISION THE CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT HAD HELD THAT APPEALS FROM SUCH ORDERS
(INVOLVING $500 OR MORE) COULD BE HAD AS A MATTER OF RIGHT.  LONDON V.
O'DOUGHERTY, 102 F.2D 524.  SUBSEQUENT TO THE DECISION IN THE LONDON
CASE AND PRIOR TO THE DECISION OF DICKINSON INDUSTRIAL SITE V. COWAN,
SUPRA, PETITIONERS ENDEAVORED TO TAKE APPEALS FROM COMPENSATION ORDERS,
WHICH HAD BEEN ENTERED IN REORGANIZATION PROCEEDINGS UNDER FORMER SEC.
77 B (48 STAT. 912), BY FILING WITHIN THE APPEAL PERIOD PROVIDED BY
SEC. 25(A) OF THE BANKRUPTCY ACT, NOTICES OF APPEAL IN THE DISTRICT
COURT.  NO APPLICATION FOR LEAVE TO APPEAL WAS MADE TO THE CIRCUIT
COURT OF APPEALS AT ANY TIME.  SOME OF THE APPEALS WERE ARGUED IN MAY,
1939, THE BALANCE IN FEBRUARY, 1940, SOME OF THE NOTICES OF APPEAL
HAVING BEEN FILED IN THE DISTRICT COURT IN MARCH, 1939, AND SOME IN
NOVEMBER, 1939.  WHILE THE MATTER WAS UNDER ADVISEMENT IN THE CIRCUIT
COURT OF APPEALS WE DECIDED DICKINSON INDUSTRIAL SITE V. COWAN, SUPRA.
THEREUPON CERTAIN RESPONDENTS MOVED FOR DISMISSAL OF THE APPEALS FOR
WANT OF JURISDICTION.  ALL OF THE APPEALS WERE DISMISSED, SOME ON THOSE
MOTIONS AND SOME BY THE COURT SUA SPONTE.  111 F.2D 37.  THE CASE IS
HERE ON PETITION FOR CERTIORARI WHICH WE GRANTED IN VIEW OF THE
IMPORTANCE OF THE PROCEDURAL PROBLEM IN ADMINISTRATION OF THE
BANKRUPTCY ACT AND OF THE ASSERTED SUBSTANTIAL CONFLICT OF THE DECISION
BELOW WITH BAXTER V. SAVINGS BANK, 92 F.2D 404, AND WILSON V. ALLIANCE
LIFE INS. CO., 102 F.2D 365, DECIDED BY THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT. 

SEC. 250 OF THE CHANDLER ACT PROVIDES THAT APPEALS FROM COMPENSATION
ORDERS "MAY, IN THE MANNER AND WITHIN THE TIME PROVIDED FOR APPEALS BY
THIS ACT, BE TAKEN TO AND ALLOWED BY THE CIRCUIT COURT OF APPEALS." 
PETITIONERS CONTEND THAT WHEN SEC. 250 STATES THAT SUCH APPEALS MAY BE
TAKEN "IN THE MANNER  ...  PROVIDED FOR APPEALS BY THIS ACT," IT
NECESSARILY MAKES APPLICABLE SEC. 24(B) WHICH PROVIDES THAT SUCH
APPELLATE JURISDICTION SHALL BE EXERCISED "BY APPEAL AND IN THE FORM
AND MANNER OF AN APPEAL."  THEY ARGUE, THEREFORE, THAT RULE 73(A) OF
THE FEDERAL RULES OF CIVIL PROCEDURE, WHICH ALLOWS AN APPEAL TO BE
TAKEN "BY FILING WITH THE DISTRICT COURT A NOTICE OF APPEAL" IN THOSE
CASES WHERE AN "APPEAL IS PERMITTED BY LAW FROM A DISTRICT COURT TO A
CIRCUIT COURT OF APPEALS," GOVERNS APPEALS UNDER SEC. 250 AS WELL AS
OTHER APPEALS, SINCE GENERAL ORDER NO. 36 MAKES THOSE RULES APPLICABLE
TO APPEALS IN BANKRUPTCY, "EXCEPT AS OTHERWISE PROVIDED IN THE ACT." 
IN OUR VIEW, HOWEVER, RULE 73(A) IS NOT APPLICABLE TO APPEALS UNDER
SEC. 250(SEE 2 COLLIER ON BANKRUPTCY (14TH ED.)  P. 918) FOR THEY ARE
PERMISSIVE APPEALS WHICH MAY BE HAD NOT AS OF RIGHT BUT ONLY IN THE
DISCRETION OF THE CIRCUIT COURT OF APPEALS.  SINCE SEC. 250 PROVIDES
THAT THEY MAY "BE TAKEN TO AND ALLOWED BY THE CIRCUIT COURT OF
APPEALS," THE PROPER PROCEDURE FOR TAKING THEM IS BY FILING IN THE
CIRCUIT COURT OF APPEALS, WITHIN THE TIME PRESCRIBED IN SEC. 25(A),
APPLICATIONS FOR LEAVE TO APPEAL, NOT BY FILING NOTICES OF APPEAL IN
THE DISTRICT COURT AS WAS DONE HERE.  AS RESPONDENTS MAINTAIN, THAT IS
THE FAIR IMPLICATION FROM OUR CONCLUSION IN DICKINSON INDUSTRIAL SITE
V. COWAN, SUPRA, AT P. 385, THAT SUCH APPEALS "MAY BE HAD ONLY AT THE
DISCRETION OF THE CIRCUIT COURT OF APPEALS."  BUT WHILE THE APPEALS
UNDER SEC. 250 MUST BE "TAKEN TO" THE CIRCUIT COURT OF APPEALS WITHIN
THE TIME PRESCRIBED IN SEC. 25(A) WE DO NOT THINK IT IS THE FAIR
INTENDMENT OF THAT SECTION THAT THEY MUST ALSO BE "ALLOWED" WITHIN THAT
TIME.  CF. IN RE FOSTER CONSTRUCTION CORP., 49 F.2D 213; PRICE V.
SPOKANE SILVER & LEAD CO., 97 F.2D 237.  IF THAT WERE TRUE, THE
EXISTENCE OF THE RIGHT TO APPEAL WOULD BE SUBJECT TO CONTINGENCIES
WHICH NO DEGREE OF DILIGENCE BY AN APPELLANT COULD CONTROL. 
AMBIGUITIES IN STATUTORY LANGUAGE SHOULD NOT BE RESOLVED SO AS TO
IMPERIL A SUBSTANTIAL RIGHT WHICH HAS BEEN GRANTED. 

THE COURT BELOW WAS IN SUBSTANTIAL AGREEMENT WITH THE FOREGOING
CONSTRUCTION OF SEC. 250.  IT WENT ON TO HOLD, HOWEVER, THAT SINCE
PETITIONERS DID NOT SEEK AN ALLOWANCE OF THEIR APPEALS IN THAT COURT
WITHIN THE TIME PRESCRIBED IN SEC. 25(A), IT HAD NO JURISDICTION TO
ALLOW THEM.  WE TAKE A DIFFERENT VIEW. 

THE PROCEDURE FOLLOWED BY PETITIONERS WAS IRREGULAR.  NORMALLY THE
CIRCUIT COURT OF APPEALS WOULD BE WHOLLY JUSTIFIED IN TREATING THE MERE
FILING OF A NOTICE OF APPEAL IN THE DISTRICT COURT AS INSUFFICIENT. 
BUT THE DEFECT IS NOT JURISDICTIONAL IN THE SENSE THAT IT DEPRIVES THE
COURT OF POWER TO ALLOW THE APPEAL.  THE COURT HAS DISCRETION, WHERE
THE SCOPE OF REVIEW IS NOT AFFECTED, TO DISREGARD SUCH AN IRREGULARITY
IN THE INTERESTS OF SUBSTANTIAL JUSTICE.  CF. TAYLOR V. VOSS, 271 U.S.
176, DEALING WITH APPEALS AND PETITIONS FOR REVISION UNDER EARLIER
PROVISIONS OF THE ACT.  IN THIS CASE THE EFFECT OF THE PROCEDURAL
IRREGULARITY WAS NOT SUBSTANTIAL.  THE SCOPE OF REVIEW WAS NOT
ALTERED.  THERE WAS NO QUESTION OF THE GOOD FAITH OF PETITIONERS, OF
DILATORY TACTICS, OR OF FRIVOLOUS APPEALS.  HENCE IT WOULD BE EXTREMELY
HARSH TO HOLD THAT PETITIONERS WERE DEPRIVED OF THEIR RIGHT TO HAVE THE
COURT EXERCISE ITS DISCRETION ON THE ALLOWANCE OF THEIR APPEALS BY
REASON OF THEIR ERRONEOUS RELIANCE UPON THE PERMANENCY OF LONDON V.
O'DOUGHERTY, SUPRA.  THIS CONCLUSION DOES NOT DO VIOLENCE TO SHULMAN V.
WILSON-SHERIDAN HOTEL CO., 301 U.S. 172.  AS WE INDICATED IN DICKINSON
INDUSTRIAL SITE V. COWAN, SUPRA, THE SHULMAN CASE STATED THE RULE OF
PERMISSIVE APPEALS WHICH WAS CARRIED OVER INTO SEC. 250.  THE FAILURE
TO COMPLY WITH STATUTORY REQUIREMENTS, HOWEVER, IS NOT NECESSARILY A
JURISDICTIONAL DEFECT.  CF. ALASKA PACKERS ASSN. V. PILLSBURY, 301 U.S.
174. 

FOR THE REASONS STATED, WE HOLD THAT THE CIRCUIT COURT OF APPEALS HAD
THE POWER TO ALLOW THE APPEALS.  REVERSED. 

I AM OF OPINION THAT TIMELY APPLICATION TO THE CIRCUIT COURT OF
APPEALS FOR LEAVE TO APPEAL IS A JURISDICTIONAL REQUIREMENT, AND THAT
THE PRACTICE FOLLOWED IN THIS CASE CANNOT BE REDUCED TO A MERE
PROCEDURAL IRREGULARITY.  FARRAR V. CHURCHILL, 135 U.S. 609, 612-13;
OLD NICK WILLIAMS CO. V. UNITED STATES, 215 U.S. 541; SHULMAN V. WILSON
SHERIDAN HOTEL CO., 301 U.S. 172.  HOWEVER, WHEN PETITIONERS FILED
THEIR NOTICES OF APPEAL IN THE DISTRICT COURT THE PROPER PROCEDURE WAS
NOT SETTLED, AND PETITIONERS WERE MISLED BY THE DECISION OF THE COURT
BELOW IN LONDON V. O'DOUGHERTY, 102 F.2D 524.  IN THESE UNIQUE
CIRCUMSTANCES I THINK THAT REVERSAL OF THE JUDGMENT IS JUSTIFIED BY OUR
BROAD POWER TO MAKE SUCH DISPOSITION OF THE CASE AS JUSTICE REQUIRES. 
WATTS, WATTS & CO. V. UNIONE AUSTRIACA, 248 U.S. 9, 21; MONTGOMERY WARD
& CO. V. DUNCAN, 311 U.S. 243, 254-255.  IN RARE INSTANCES SUCH AS THE
CASE AT BAR THIS POWER IS APPROPRIATE FOR CURING EVEN JURISDICTIONAL
DEFECTS.  CF. RORICK V. COMMISSIONERS, 307 U.S. 208, 213. 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :



LABOR BOARD V. LINK-BELT CO., 311 U.S. 584 


NO. 235.  ARGUED DECEMBER 18, 1940.  - DECIDED JANUARY 6, 1941.  - 110
F.2D 506, REVERSED. 


1.  AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD REQUIRING AN
EMPLOYER TO DISESTABLISH A LABOR ORGANIZATION OF ITS EMPLOYEES, AND
DIRECTING THE EMPLOYER TO REINSTATE OR TO MAKE WHOLE CERTAIN EMPLOYEES
AGAINST WHOM THE BOARD FOUND THE EMPLOYER HAD DISCRIMINATED IN REGARD
TO HIRE OR TENURE OF EMPLOYMENT BECAUSE OF THEIR UNION MEMBERSHIP AND
ACTIVITIES, HELD BASED ON FINDINGS SUPPORTED BY SUBSTANTIAL EVIDENCE. 
PP. 585-597. 

2.  IN REACHING THE CONCLUSION THAT THERE WAS NO EVIDENCE IN THIS
CASE FROM WHICH IT COULD BE INFERRED THAT THE EMPLOYEES DID NOT, WITH
COMPLETE INDEPENDENCE AND FREEDOM FROM DOMINATION, INTERFERENCE OR
SUPPORT OF THE EMPLOYER, FORM THEIR OWN UNION, THE CIRCUIT COURT OF
APPEALS SUBSTITUTED ITS JUDGMENT ON DISPUTED FACTS FOR THAT OF THE
BOARD - A POWER DENIED IT BY CONGRESS.  P. 596. 

3.  IT IS FOR THE BOARD, NOT THE COURTS, TO DETERMINE WHETHER THE
DISESTABLISHMENT OF A LABOR ORGANIZATION IS REQUIRED, NOTWITHSTANDING
ITS SUBSEQUENT CONDUCT, IN ORDER TO DISSIPATE COMPLETELY THE EFFECTS OF
UNFAIR LABOR PRACTICES WHICH AIDED ITS FORMATION.  P. 600. 

4.  THE EVIDENCE IN THIS CASE SUSTAINS THE FINDINGS OF THE BOARD THAT
CERTAIN EMPLOYEES WERE DISCHARGED AND DISCRIMINATED AGAINST IN
VIOLATION OF SEC. 8(1) AND (3) OF THE ACT.  P. 600 ET SEQ. 

NATIONAL LABOR RELATIONS BOARD V. LINKBELT COMPANY* . 

*TOGETHER WITH NO. 236, NATIONAL LABOR RELATIONS BOARD V. INDEPENDENT
UNION OF CRAFTSMEN, ALSO ON WRIT OF CERTIORARI, POST, P. 629, TO THE
CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 629, TO REVIEW A JUDGMENT REFUSING TO ORDER
ENFORCEMENT OF PORTIONS OF AN ORDER OF THE NATIONAL LABOR RELATIONS
BOARD. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE COURT BELOW REFUSED TO ENFORCE CERTAIN PORTIONS OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD, ENTERED IN PROCEEDINGS  FN1  UNDER
SEC. 10 OF THE ACT (49 STAT. 449), REQUIRING AN EMPLOYER TO CEASE AND
DESIST FROM DOMINATING OR INTERFERING WITH A LABOR ORGANIZATION AND TO
WITHDRAW RECOGNITION FROM IT AS A COLLECTIVE BARGAINING REPRESENTATIVE
OF EMPLOYEES; AND DIRECTING THE EMPLOYER TO REINSTATE OR TO MAKE WHOLE
CERTAIN EMPLOYEES  FN2  AGAINST WHOM THE BOARD FOUND THE EMPLOYER HAD
DISCRIMINATED BECAUSE OF THEIR UNION MEMBERSHIP AND ACTIVITIES. 
ENFORCEMENT OF THOSE PORTIONS OF THE ORDER WAS REFUSED BECAUSE, IN THE
VIEW OF THE COURT BELOW, THEY WERE NOT "SUPPORTED BY EVIDENCE" AS
REQUIRED BY SEC. 10(E) OF THE ACT.  THE PETITION FOR WRITS OF
CERTIORARI WAS GRANTED BECAUSE OF THE IMPORTANCE IN AN ORDERLY
ADMINISTRATION OF THE ACT OF THE MANDATE CONTAINED IN SEC. 10(E) THAT
THE FINDINGS OF THE BOARD AS TO THE FACTS "IF SUPPORTED BY EVIDENCE,
SHALL BE CONCLUSIVE."  SEE NATIONAL LABOR RELATIONS BOARD V. WATERMAN
STEAMSHIP CORP., 309 U.S. 206. 

DISESTABLISHMENT OF INDEPENDENT.  INDEPENDENT UNION OF CRAFTSMEN WAS
ORGANIZED WITHIN A FEW DAYS AFTER THE DECISION BY THIS COURT, ON APRIL
12, 1937, OF NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1, WHICH UPHELD THE CONSTITUTIONALITY OF THE ACT.  FROM
1933 DOWN TO THAT DATE THE EMPLOYER, LINK-BELT CO., HAD MAINTAINED A
COMPANY UNION, APPARENTLY CONTINUING TO RECOGNIZE IT EVEN AFTER PASSAGE
OF THE ACT IN 1935 AND EVEN THOUGH UNDER THE ACT IT WAS CONCEDEDLY AN
IMPROPER BARGAINING UNIT.  IN ANY EVENT, THAT UNION REMAINED IN
EXISTENCE UNTIL INDEPENDENT'S MEMBERSHIP DRIVE WAS SUCCESSFULLY
CONCLUDED.  THE ORGANIZATION OF INDEPENDENT WAS CONCEIVED ON APRIL 12
AND 13, 1937, BY CERTAIN EMPLOYEES, WHO WERE DISAPPOINTED AT THE
DECISION UPHOLDING THE CONSTITUTIONALITY OF THE ACT.  LINDE, WHO WAS A
LEADER IN ORGANIZING INDEPENDENT, TESTIFIED:  "A. THE WAGNER ACT HAD
BEEN DECLARED CONSTITUTIONAL, AND A GROUP OF US WERE DISMAYED, I AM
FRANK TO ADMIT, OR WE THOUGHT THERE WAS NOTHING FOR US TO DO.  Q. WHY
WERE YOU DISMAYED?  A. I WILL TELL YOU, WE HAD BANKED OUR HOPES THAT IT
WOULD BE DECLARED ILLEGAL, AND IMMEDIATELY THE LABOR UNREST AND TROUBLE
WOULD HAVE STOPPED AND OUR COMPANY WOULD PROCEED AND ALL THE OTHER
COMPANIES WOULD PROCEED TO ENJOY THE PROSPERITY WHICH WE THOUGHT WAS
COMING AT THAT TIME."  THE MEMBERSHIP DRIVE TOOK PLACE IN THE MAIN ON
APRIL 14, 15, AND 16, RESULTING IN A MEMBERSHIP OF 760 OUT OF ABOUT
1,000 EMPLOYEES.  THE CONSTITUTION WAS DRAFTED ON APRIL 17.  ON APRIL
18, IT WAS DECIDED TO SEEK DISSOLUTION OF THE OLD COMPANY UNION AND
RECOGNITION OF INDEPENDENT.  ACCORDINGLY, ON APRIL 19 AN AGREEMENT WAS
REACHED BETWEEN THE EMPLOYEE REPRESENTATIVES AND PLANT MANAGER BERRY
DISSOLVING THE OLD UNION; AND HE WAS ASKED TO OBTAIN EXCLUSIVE
RECOGNITION FOR INDEPENDENT.  THAT REQUEST WAS GRANTED BY THE EMPLOYER
ON APRIL 21; AND INDEPENDENT HELD ITS FIRST MEETING ON APRIL 22. 

AN "INSIDE" UNION, AS WELL AS AN "OUTSIDE" UNION, MAY BE THE PRODUCT
OF THE RIGHT OF THE EMPLOYEES TO SELFORGANIZATION AND TO COLLECTIVE
BARGAINING "THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING," GUARANTEED
BY SEC. 7 OF THE ACT.  THE QUESTION HERE IS WHETHER THE BOARD WAS
JUSTIFIED IN CONCLUDING THAT INDEPENDENT WAS NOT THE RESULT OF THE
EMPLOYEES' FREE CHOICE BECAUSE THE EMPLOYER HAD INTRUDED TO IMPAIR
THEIR FREEDOM. 

RESPONDENTS POINT TO NUMEROUS EARMARKS OF INDEPENDENCE WHICH
INDEPENDENT EVIDENCES.  THEY EMPHASIZE THAT AFTER IT WAS RECOGNIZED IT
HELD MANY BARGAINING CONFERENCES AND AS A RESULT OBTAINED WAGE
INCREASES, CHANGES IN SENIORITY POLICY, BONUS PAYMENTS FOR NIGHT
WORKERS, A BETTER VACATION POLICY, BETTER LIGHTING AND AIR CONDITIONS,
AND IMPROVED SAFETY MEASURES - IN FACT, ALL OF ITS MAJOR OBJECTIVES
EXCEPT A CLOSED SHOP.  THEY STRESS THE FACTS THAT IT IS NOT FINANCED BY
THE EMPLOYER, THAT ITS MEETINGS ARE HELD OFF COMPANY PROPERTY, THAT ITS
LEADERSHIP IS SUBSTANTIALLY DIFFERENT FROM THE EMPLOYEE REPRESENTATION
IN THE OLD COMPANY UNION, AND THAT ITS GENESIS WAS A SUGGESTION MADE
NOT BY THE EMPLOYER BUT BY A GROUP OF EMPLOYEES. 

IN THE LATTER CONNECTION THEY URGE THAT THE EMPLOYEES CHOSE
INDEPENDENT BECAUSE THAT WAS THE TYPE OF LABOR ORGANIZATION WHICH THEY
HONESTLY PREFERRED; OR AS STATED BY ONE OF THE EMPLOYEES WHO LED THE
MEMBERSHIP DRIVE, "IT WAS SO BIG A FEATURE THAT THEY (THE EMPLOYEES)
WERE ALL ANXIOUS TO GET ON THE BAND WAGON AND DO SOMETHING.  THAT WAS
THE GENERAL ATTITUDE."  AND THEY MAINTAIN THAT THERE WAS IN FACT NO
CONNECTION BETWEEN INDEPENDENT AND THE OLD COMPANY UNION; THAT THE
SUCCESS OF INDEPENDENT'S MEMBERSHIP DRIVE WAS NOT THE RESULT OF ANY
COMPULSION OR BELIEF AS RESPECTS THE EMPLOYER'S ATTITUDE. 

IT WOULD INDEED BE A RARE CASE WHERE THE FINDERS OF FACT COULD PROBE
THE PRECISE FACTORS OF MOTIVATION WHICH UNDERLAY EACH EMPLOYEE'S
CHOICE.  NORMALLY, THE CONCLUSION THAT THEIR CHOICE WAS RESTRAINED BY
THE EMPLOYER'S INTERFERENCE MUST OF NECESSITY BE BASED ON THE EXISTENCE
OF CONDITIONS OR CIRCUMSTANCES WHICH THE EMPLOYER CREATED OR FOR WHICH
HE WAS FAIRLY RESPONSIBLE AND AS A RESULT OF WHICH IT MAY REASONABLY BE
INFERRED THAT THE EMPLOYEES DID NOT HAVE THAT COMPLETE AND UNFETTERED
FREEDOM OF CHOICE WHICH THE ACT CONTEMPLATES. 

HERE NO ONE FACT IS CONCLUSIVE.  BUT THE WHOLE CONGERIES OF FACTS
BEFORE THE BOARD SUPPORTS ITS FINDINGS. 

THE EMPLOYER'S ATTITUDE TOWARDS UNIONS IS RELEVANT.  AS WE HAVE
INDICATED, IT MAINTAINED A COMPANY UNION BOTH BEFORE AND AFTER THE
ACT.  AND THE COURT BELOW SUSTAINED THE BOARD'S FINDING AS TO THE
EMPLOYER'S LONGSTANDING INDUSTRIAL ESPIONAGE, THROUGH THE NATIONAL
METAL TRADES ASSOCIATION, WHICH CONTINUED AT LEAST UNTIL AN
INVESTIGATION WAS MADE LATE IN 1936 BY THE LA FOLLETTE COMMITTEE OF THE
SENATE.  FN3  FURTHER, THE EMPLOYER EVIDENCED HOSTILITY TOWARDS AN
"OUTSIDE" UNION.  IN 1936, PLANT MANAGER BERRY TOLD THE BOARD OF THE
COMPANY UNION THAT "IN THE EVENT OUTSIDE PEOPLE CAME INTO OUR PLANT AND
TOLD US HOW TO RUN THE PLANT, THEN I HAD ENOUGH OF INDUSTRY."  AT THE
HEARING HE TESTIFIED THAT HE MEANT "THAT THE LINK BELT COMPANY WAS ABLE
AND HAD FOR MANY YEARS RAN THEIR ORGANIZATION AND WE DID NOT NEED
OUTSIDE PEOPLE TO TELL US HOW TO RUN THE PLANT ECONOMICALLY AND
EFFICIENTLY."  IN SEPTEMBER, 1936, SALMONS, AN EMPLOYEE OF 14 YEARS
STANDING, WHO WAS AN EMPLOYEE REPRESENTATIVE IN THE COMPANY UNION AND
WHO BECAME DISSATISFIED WITH IT, INITIATED THE FORMATION OF
AMALGAMATED, AN "OUTSIDE" ORGANIZATION.  FN4  AMALGAMATED HELD ITS
FIRST ORGANIZING MEETING ON SEPTEMBER 20, 1936.  SALMONS WAS DISCHARGED
THE NEXT DAY BY PLANT MANAGER BERRY FOR "SPREADING UNION PROPAGANDA
AROUND HERE."  HE WAS GIVEN HALF AN HOUR TO LEAVE.  THE EMPLOYER DOES
NOT DENY THIS BUT ADDS THAT SALMONS WAS DISCHARGED BECAUSE HE ENGAGED
IN UNION ACTIVITIES ON COMPANY TIME.  THAT HE DID SOLICIT ON COMPANY
TIME SEEMS CLEAR, THOUGH IT COULD HARDLY HAVE BEEN EXTENSIVE AS HIS
FOREMAN TESTIFIED THAT HE WAS NOT AWARE OF IT.  YET IN HIS ASSOCIATION
WITH THE COMPANY UNION, HE APPARENTLY WAS ALLOWED A SIMILAR FREEDOM. 
THAT FACT, HIS POSITION OF LEADERSHIP IN AMALGAMATED, THE APPARENT
ABSENCE OF THE CUSTOMARY WARNING, HIS SOMEWHAT PRECIPITATE DISCHARGE,
THE FAILURE OF THE EMPLOYER TO DISCHARGE REPRESENTATIVES OF INDEPENDENT
WHO, AS WE SHALL SEE, SOLICITED ON COMPANY TIME WITH THE KNOWLEDGE AND
APPROVAL OF AT LEAST SOME OF THE SUPERVISORS, MADE PERMISSIBLE THE
BOARD'S CONCLUSION THAT SALMONS' ACTIVITY ON BEHALF OF THE "OUTSIDE"
UNION WAS THE BASIC CAUSE OF HIS DISCHARGE.  FN5  ON SEPTEMBER 21,
1936, ANOTHER EMPLOYEE, NOVAK, WHO HAD BEEN EMPLOYED BY THE COMPANY FOR
OVER 11 YEARS, WAS ALSO DISCHARGED WITHOUT WARNING BY BERRY, WHO
BELIEVED, MISTAKENLY IT WOULD SEEM, THAT NOVAK WAS A MEMBER OF AND
SOLICITOR FOR AMALGAMATED.  BERRY GAVE HIM HALF AN HOUR TO GET OUT,
AFTER CHARGING HIM WITH BEING "AN ORGANIZER AND INSTIGATOR FOR A UNION"
- A CHARGE WHICH NOVAK DENIED.  FN6  THE BOARD FOUND AND THE COURT
BELOW SUSTAINED THE FINDING THAT NOVAK WAS DISCHARGED IN VIOLATION OF
THE ACT BECAUSE OF HIS ALLEGED UNION ACTIVITIES.  WE AGREE. 

AMALGAMATED, AS WELL AS INDEPENDENT, SOLICITED ON COMPANY TIME.  BUT
A REVIEW OF THE RECORD INDICATES THAT THE INSTANCES OF SOLICITATION BY
AMALGAMATED ON COMPANY TIME WERE SCATTERED OVER A PERIOD OF MONTHS AND
WERE APPARENTLY MORE SPORADIC THAN THOSE OF INDEPENDENT.  AT LEAST THEY
DO NOT APPEAR TO HAVE HAD THE MAGNITUDE AND INTENSITY OF THE ACTS OF
SOLICITATION ON COMPANY TIME BY INDEPENDENT.  THERE IS CONSIDERABLE
TESTIMONY BY MEMBERS OF THE SUPERVISORY STAFF THAT THEY WERE INSTRUCTED
NOT TO TAKE SIDES IN THE UNION COMPETITION AND NOT TO ALLOW
SOLICITATION ON COMPANY TIME.  PLANT MANAGER BERRY TESTIFIED ON DIRECT
EXAMINATION THAT THOSE INSTRUCTIONS WERE GIVEN AFTER APRIL 12, 1937;
AND ON CROSS-EXAMINATION HE ADMITTED THAT THEY WERE GIVEN ONLY AFTER
APRIL 19, 1937, AT WHICH TIME INDEPENDENT HAD ACQUIRED A MEMBERSHIP OF
760 MEN.  IT IS ARGUED HERE THAT THE EMPLOYER WARNED SOLICITORS FOR
INDEPENDENT AND THREATENED THEM WITH DISMISSAL FOR ENGAGING IN UNION
ACTIVITIES ON THE COMPANY'S TIME.  AND FROLING, CHAIRMAN OF THE COMPANY
UNION AND ACTIVE SOLICITOR FOR INDEPENDENT, TESTIFIED THAT HE WAS WARY
ABOUT SOLICITING IN THE PLANT ON COMPANY TIME IN FRONT OF FOREMEN, FOR
ALTHOUGH HE DID NOT REMEMBER ANY FOREMAN WARNING HIM, HE NEVERTHELESS
WAS AFRAID OF BEING DISCHARGED BECAUSE OF WHAT HAD HAPPENED TO SALMONS
ON ACCOUNT OF HIS ACTIVITIES.  IT IS THEREFORE CONTENDED THAT NO
DISCRIMINATION IN FAVOR OF INDEPENDENT CAN BE INFERRED; THAT THE QUICK
SUCCESS OF INDEPENDENT IN OBTAINING A MAJORITY WAS DUE NOT TO THE
EMPLOYER'S SUPPORT BUT TO THE EMPLOYEES' ENTHUSIASM FOR THAT UNION. 
THE BOARD STRESSES THE FACT THAT EMPLOYEE REPRESENTATIVES IN THE
COMPANY UNION WERE EXTREMELY ACTIVE SOLICITORS FOR INDEPENDENT.  IT
POINTS OUT THAT AT LEAST SIX OF THE EMPLOYEE REPRESENTATIVES UNDER THE
COMPANY UNION WERE ACTIVE SOLICITORS - FROLING VIRTUALLY ADMITTING THAT
HE SOLICITED THE ENTIRE MACHINE SHOP - 110 TO 120 MEN - DURING WORKING
HOURS.  KOWATCH, AN EMPLOYEE, SIGNED UP BETWEEN 100 AND 250 MEN, ABOUT
ONE-FOURTH ON COMPANY TIME AND TWICE PUNCHED OUT HIS TIME WITH THE
PERMISSION OF THE FOREMAN TO SOLICIT IN THE FOUNDRY.  THE COMPANY
COUNTERS WITH THE FACT THAT THERE WERE MANY SOLICITORS FOR INDEPENDENT
OF WHOM THOSE REPRESENTATIVES WERE A MERE MINORITY - LESS THAN A
THIRD.  THERE IS THIS TO BE SAID, HOWEVER, ABOUT THOSE CONFLICTING
CLAIMS.  MOST OF THE COMPANY UNION REPRESENTATIVES WERE ACTIVE AND
PROMINENT IN INDEPENDENT'S MEMBERSHIP DRIVE AND DURING THAT DRIVE
APPARENTLY ENJOYED SOMEWHAT THE SAME PRIVILEGE OF MOVING FREELY ABOUT
THE PLANT WHICH THEY HAD BEEN ALLOWED AS COMPANY UNION REPRESENTATIVES
A PRIVILEGE WITHDRAWN AFTER INDEPENDENT HAD BEEN RECOGNIZED.  THE
INSTANCES WHEN SUPERVISORS REMONSTRATED WITH SOLICITORS FOR INDEPENDENT
SEEM TO BE RESTRICTED TO AROUND SIX OR SEVEN IN NUMBER, AND SOME OF
THOSE RELATED TO ACTIVITIES AFTER THE APRIL MEMBERSHIP DRIVE WAS
COMPLETED.  AS RESPECTS ONE OF THE LATTER INSTANCES, LINDE, AN EMPLOYEE
SOLICITING FOR INDEPENDENT, STATED THAT FOREMEN WARNED THE MEN:  "'YOU
ARE ON UNION BUSINESS.  MY GOD, DON'T LET ME CATCH YOU OR WE WILL FIRE
YOU,' OR WORDS TO THAT EFFECT."  BUT, AS THE BOARD CONCLUDED, IT SEEMS
IMPOSSIBLE TO INFER THAT, IN VIEW OF THE EXTENSIVE AND INTENSIVE
SOLICITATION FOR INDEPENDENT IN THE PLANT ON COMPANY TIME, THE
SUPERVISORY STAFF WERE NOT AWARE OF THE CAMPAIGN AND DID NOT ACQUIESCE
IN IT.  BEYOND THAT IS THE ACTIVE SUPPORT OF INDEPENDENT BY SOME OF THE
SUPERVISORY STAFF.  THERE IS ABUNDANT TESTIMONY THAT SISKAUSKIS, A
FOREMAN, ACTIVELY SOLICITED FOR INDEPENDENT.  ONE EMPLOYEE, LACKHOUSE,
WHO EARLIER HAD JOINED AMALGAMATED BUT WHO WAS SOLICITING FOR
INDEPENDENT IN APRIL 1937, TESTIFIED: 

"HE TOOK THE SHEETS IN MY HAND - THE FIRST SHEET I HAD ALREADY
FILLED, WITH THE HEADING ON IT, AND I HAD NOTHING BUT BLANK SHEETS
LEFT, AND HE WENT AROUND THE MACHINES, THE MOLDERS RIGHT OFF THE SIDE
FLOOR THERE, AND HE TOLD THEM TO SIGN UP FOR THE INSIDE UNION HERE, AND
HE SIGNED UP I BELIEVE TEN, AND ABOUT FIVE OF THEM HE SIGNED UP IN HIS
OWN HANDWRITING.  THE MAJORITY OF THEM IN THE FOUNDRY DON'T KNOW HOW TO
WRITE.  Q. AND DID YOU SEE HIM SIGN UP THESE OTHER MEN?  A. I SEEN HIM
SIGN UP ACTUALLY ABOUT SEVEN OR EIGHT, I AM SURE, IN HIS OWN
HANDWRITING.  HE WENT AS FAR AS ONE CRANE MAN WHO WAS WORKING RIGHT
ABOVE HIM, AND HE WAS GOING UP TO HIM AND HE WAS GOING TO EXPLAIN WHAT
IT WAS ALL ABOUT, AND HE SAYS, 'OH, HECK, HE DON'T KNOW HOW TO WRITE,'
SO HE WROTE DOWN HIS NAME, TOO.  I DON'T REMEMBER HIS NAME, I KNOW IT
WAS JOHN, THE CRANE MAN IN HIS DEPARTMENT.  I JUST DON'T KNOW HIS LAST
NAME.  Q. AND THEN DID MR. SHASKINSKIS GIVE YOU BACK THE PAPER?  A.
YES, HE RETURNED THEM BACK TO ME AFTER HE HAD THE NAMES ON THEM." 
THIS EPISODE WAS CONFIRMED AT LEAST IN PART BY JOHNSON, AN EMPLOYEE. 
ANOTHER EMPLOYEE, BALCAUSKI, TESTIFIED AS FOLLOWS RESPECTING
SISKAUSKIS' SOLICITATION: 

"HE WALKED TO ME AND HE SAID, 'STANLEY, WHY DON'T YOU JOIN IN THE
C.I.O.'  - I MEAN THIS HERE, THE INDEPENDENT CRAFTSMEN'S UNION.  I
SAID, 'I AM ALREADY WITH THE C.I.O.'  HE SAYS, 'THE HELL WITH THE
C.I.O.'  HE SAYS, 'JOIN IN WITH THE CRAFTSMEN'S UNION.'  HE SAYS, 'WE
ARE GOING TO HAVE OUR UNION.'  THEN I REPEATED, I SAYS, 'DO YOU KNOW
UNDER THE WAGNER LAW THAT IS NOT ALLOWED FOR THE FOREMAN TO GO AND
ORGANIZE THE WORKINGMEN ON THE COMPANY TIME OR ON HIS OWN TIME?'  HE
TOLD ME THIS, HE SAID, 'TO HELL WITH THAT.'  SO I SAYS, 'IF YOU WANT TO
SIGN UP INDEPENDENT, GO AHEAD, I AIN'T GOING TO WASTE MY TIME.'  AND I
WALKED AWAY." 

BALCAUSKI FURTHER TESTIFIED RESPECTING SISKAUSKIS' SOLICITATION OF
EMPLOYEES:  "HE TOLD THEM, 'IF YOU DON'T SIGN UP' - I HEARD IT WITH MY
OWN EARS - HE SAID, 'YOU ARE GOING TO GET OUT OF HERE.'" 

STILL ANOTHER EMPLOYEE, THOMAS, TESTIFIED: 

"Q.  DID ANYBODY ASK YOU TO JOIN THE INDEPENDENT UNION?  A.
EVERYBODY, SPLITZ (SISKAUSKIS) COMES TO ME WITH PIECE OF PAPER, SIGN
YOUR NAME.  I SAY I CAN'T SIGN MY NAME.  HE SAYS, 'ALL RIGHT, I SIGN IT
MYSELF.'  AND HE SIGNED IT HIMSELF, MY NAME.  Q. DID HE SAY ANYTHING
MORE TO YOU ABOUT IT?  A. THAT IS ALL THAT DAY.  THE SECOND DAY HE COME
AROUND AGAIN.  HE SAY, 'JOE, SIGN NAME.'  I SAY, 'I SIGN YESTERDAY.' 
HE SAY, 'ALL RIGHT, IT IS NO GOOD, I THREW IT AWAY.'  Q. IT IS NO GOOD,
HE THREW IT AWAY?  A. SURE.  I DIDN'T SIGN NO PLACE.  'JOE,' HE SAY,
'SIGN HIM UP ANYHOW, OR MAYBE LOSE JOB.'  Q. SPLITZ SAYS TO SIGN UP OR
MAYBE YOU LOSE JOB?  A. YES.  I SAYS, 'I SIGN HIM UP IF YOU WANT TO.' 
HE COME IN THURSDAY ABOUT THIS PIECE OF PAPER AGAIN AND HE SAY, 'JOE,
SIGN NAME.'  I SAY, 'WHAT IS THE MATTER, I SIGN HIM UP TWICE, I SIGN
HIM UP BEFORE YESTERDAY AND I SIGN HIM AGAIN.'  HE SAY, 'SOMETHING
WRONG, NO GOOD.'  I SAY, 'I QUIT, I DON'T WANT SIGN AT ALL.'  Q. YOU
DIDN'T WANT TO SIGN?  A. NO. Q. YOU DIDN'T SIGN EITHER DAY?  A. I DON'T
SIGN.  AT NOONTIME HE COME TO ME AND HE SAY - I WAS BY HIM OVER THERE
AND HE SAY, 'COME ON, JOE, COME IN OFFICE SOMETIME, WE WANT TO SEE
YOU.'  Q. DID YOU GO IN THE OFFICE?  A. YES.  ...  Q. SOME MAN WITH A
MUSTACHE WAS SITTING THERE?  A. YES, SIR.  HE SAYS, 'WHAT YOU WANT?'  I
SAY, 'SPLITZ SENT ME IN OFFICE, YOU WANT SOMETHING?'  HE SAID HE DIDN'T
WANT NOTHING FROM ME.  SPLITZ COME IN THEN AND GRABBED MY HAND, AND HE
SAY, 'GIVE HIM PIECE OF PAPER.'  HE SAY, 'SIGN HIS NAME.'  I CAN'T SIGN
NAME, I SAY I WILL NOT SIGN.  I SAID TWO TIMES I SIGN, I DON'T LIKE IT.
HE SAY, 'SIGN ANYHOW.'  Q. WHO SAID THAT?  A. SPLITZ, 'GO AHEAD, SIGN
AGAIN.'  I SAY, 'I AM GOING OUT, GO TO WORK.'  Q. YOU DID NOT SIGN?  A.
NO. A COUPLE OF TIMES HE COME TO ME AND SAY, 'SIGN THEM UP.'  I DON'T
SIGN NO PLACE.  A LOT OF PEOPLE DON'T SIGN, I NO SIGN." 

BOZURICH, AN EMPLOYEE, TESTIFIED AS FOLLOWS WITH RESPECT TO THE
ATTITUDE OF SISKAUSKIS TOWARDS AMALGAMATED: 

"  ...  THEN HE WENT ON WITH REMARKS THAT IT WOULD BE VERY BAD IF
C.I.O. WOULD COME INTO THE SHOP.  AND I SAID, 'WHAT WOULD BE BAD ABOUT
IT?'  I SAID, 'IF THE WORKERS WANT IT WHO CAN STOP THEM?'  'WELL,' HE
SAID, 'IF C.I.O. COMES IN THE COMPANY WILL CLOSE THE PLANT.'  HE SAID,
'YOU SEE DURING THE DEPRESSION IT WAS HARD TO BE WITHOUT A JOB.'  I
SAID, 'COMPANY CAN'T LOCK - CLOSE THE SHOP BECAUSE OF THE UNION.'  I
SAYS, 'THAT WOULD BE CONSIDERED AS A LOCK-OUT.'  AND HE SAID, 'WHO CAN
STOP THEM?'  'WELL,' I SAID, 'THE GOVERNMENT.'  HE SAID, 'THE COMPANY
RUNS THE PLANT AND NOT THE GOVERNMENT.'  I SAID, 'THERE IS SUCH A THING
AS GOVERNMENT LABOR BOARD HERE WHO TAKES CARE OF THOSE MEMBERS,' AND I
BELIEVE I REFERRED HIM TO - WELL, TO BE EXACT, I READ IN THE PAPER
ABOUT A CERTAIN COMPANY SOMEWHERE IN NEW YORK OR NEW JERSEY THAT DUE TO
C.I.O. ACTIVITIES CLOSED THEIR PLANT AND MOVED THE MACHINERY OUT,
THINGS LIKE THAT, TO GET AWAY FROM THE UNION.  SO I CALL HIS ATTENTION
TO THAT, TO THE BEST OF MY RECOLLECTION FROM THE NEWSPAPER, THAT THE
LABOR BOARD TAKES ACTION; THEY GOT COMPANY TO PUT MACHINERY BACK.  AT
LEAST THAT IS THE WAY I UNDERSTOOD IT SO THE ILLUSTRATION TO HIM IS
THAT WE ARE NOT AFRAID OF THAT KIND.  THEN HE TWISTED HIS LIPS AND SAID
'OH,' HE SAYS, 'YOU BETTER KEEP AWAY FROM SOMETHING LIKE THAT,' HE
SAID, 'AND IF YOU WANT ANYTHING IT IS BEST TO GO TO BOSS YOURSELF.'" 

THERE IS ALSO TESTIMONY THAT SISKAUSKIS SIGNED FOR ILLITERATE
EMPLOYEES, THOUGH, WITH ONE POSSIBLE EXCEPTION, APPARENTLY NOT AGAINST
THEIR WILL.  SISKAUSKIS DENIED THAT HE MADE ANY SUCH STATEMENTS OR THAT
HE EVER SOLICITED FOR INDEPENDENT.  THE BOARD REFUSED TO BELIEVE THAT
ALL THE OPPOSING TESTIMONY WAS FABRICATED, AND FOUND HIS DENIALS
UNCONVINCING. 

LACKHOUSE, AN EMPLOYEE, TESTIFIED THAT HE OBTAINED PERMISSION FROM
NYBERG, HIS FOREMAN, TO SOLICIT FOR INDEPENDENT, NYBERG SAYING, "WELL,
IF YOU HAVE TO, YOU HAVE TO, FRANK, SO YOU MIGHT AS WELL GO AHEAD ON
IT."  LACKHOUSE WAS DELAYED ABOUT HALF AN HOUR IN GETTING STARTED WHEN
OLSON, AN ASSISTANT SUPERINTENDENT, TOOK HIM ASIDE IN A SEPARATE ROOM
AND, ACCORDING TO LACKHOUSE, "COMPARED THE DIFFERENCES BETWEEN THE
OUTSIDE UNION AND THE INSIDE UNION; AND HE TOLD ME ABOUT IT UP THERE,
HOW MUCH BETTER OFF WE WOULD BE IF WE ORGANIZED AMONGST US FELLOWS,
AMONG OUR FELLOW WORKMEN OURSELVES AND KEPT THE OUTSIDE UNION OUT, THAT
YOU WILL NEVER GET ANYWHERE WITH THEM, JUST STRIKING ALL THE TIME, AND
GIVE ME THE DIFFERENCES, AND I LISTENED TO HIM ABOUT IT."  LACKHOUSE
TESTIFIED THAT THEREUPON HE SOLICITED IN THE PLANT DURING WORKING
HOURS:  "I WAS ABSENT FROM MY JOB FROM ONE O'CLOCK UNTIL QUITTING TIME
WALKING THROUGH THE WHOLE FOUNDRY."  ON DIRECT EXAMINATION OLSON DENIED
THIS CONVERSATION.  ON CROSS-EXAMINATION HE ADMITTED TALKING BRIEFLY
WITH LACKHOUSE ABOUT "A RUMOR THAT THE BOYS ARE TRYING TO FORM AN
INDEPENDENT UNION."  NYBERG WAS NOT CALLED.  THE BOARD BELIEVED
LACKHOUSE. 

THERE WAS CONSIDERABLE TESTIMONY, NOT DENIED, THAT BELOV, A NIGHT
BOSS, ALSO SOLICITED FOR INDEPENDENT.  ACCORDING TO ONE EMPLOYEE,
KALAMARIE, BELOV DID SO ON WRITTEN INSTRUCTIONS LEFT BY FOREMAN
MCKINNEY WHICH KALAMARIE READ.  KALAMARIE TESTIFIED AS FOLLOWS
RESPECTING THIS CONVERSATION WITH BELOV ABOUT THOSE INSTRUCTIONS: 

"Q.  SO WHEN HE (BELOV) GOT THIS NOTE TO SOLICIT FOR THE INDEPENDENT
UNION HE WAS A LITTLE BIT PUZZLED BY IT AND HE ASKED YOUR ADVICE ABOUT
IT?  A. HE DID.  Q. YOU ADVISED HIM THAT INASMUCH AS HIS SUPERIOR
OFFICER, MR. MCKINNEY, HAD ORDERED HIM TO DO IT, HE HAD BETTER GO AHEAD
AND DO IT? A.  THAT IS RIGHT, IF HE WANTED TO KEEP HIS JOB, I IMAGINE
HE SHOULD." 

MCKINNEY DENIED THAT HE HAD LEFT ANY SUCH INSTRUCTIONS, THOUGH IT
APPARENTLY WAS HIS CUSTOM TO LEAVE WRITTEN INSTRUCTIONS FOR THE NIGHT
BOSSES ON THINGS HE WANTED DONE.  BELOV WAS NOT CALLED.  BECAUSE OF
THAT AND BECAUSE OF THE CONTRADICTORY CHARACTER OF MCKINNEY'S TESTIMONY
ON CERTAIN MATTERS, THE BOARD BELIEVED KALAMARIE. 

TOMAS, AN EMPLOYEE, TESTIFIED THAT HIS BOSS, BIG LOUIE, "A KIND OF
ASSISTANT FOREMAN," SOLICITED FOR INDEPENDENT GETTING ABOUT TEN
SIGNATURES; THAT BIG LOUIE TOLD HIM THAT "THEY WERE TRYING TO GET THE
C.I.O. OUT OF THERE." 

THE COURT BELOW WAS UNABLE TO FIND ANY EVIDENCE FROM WHICH IT COULD
BE INFERRED THAT THE EMPLOYEES DID NOT, WITH COMPLETE INDEPENDENCE AND
FREEDOM FROM DOMINATION, INTERFERENCE OR SUPPORT OF THE EMPLOYER, FORM
THEIR OWN UNION.  BUT WE ARE OF THE OPINION THAT THE COURT OF APPEALS
IN REACHING THAT CONCLUSION SUBSTITUTED ITS JUDGMENT ON DISPUTED FACTS
FOR THE BOARD'S JUDGMENT - A POWER WHICH HAS BEEN DENIED IT BY THE
CONGRESS.  SEC. 10(E) PROVIDES THAT THE "FINDINGS OF THE BOARD AS TO
THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE."  AS WE
STATED IN NATIONAL LABOR RELATIONS BOARD V. WATERMAN STEAMSHIP CORP.,
SUPRA, AT PP. 208-209:  "  ...  CONGRESS HAS LEFT QUESTIONS OF LAW
WHICH ARISE BEFORE THE BOARD - BUT NOT MORE - ULTIMATELY TO THE
TRADITIONAL REVIEW OF THE JUDICIARY.  NOT BY ACCIDENT, BUT IN LINE WITH
A GENERAL POLICY, CONGRESS HAS DEEMED IT WISE TO ENTRUST THE FINDING OF
FACTS TO THESE SPECIALIZED AGENCIES.  IT IS ESSENTIAL THAT COURTS
REGARD THIS DIVISION OF RESPONSIBILITY WHICH CONGRESS AS A MATTER OF
POLICY HAS EMBODIED IN THE VERY STATUTE FROM WHICH THE COURT OF APPEALS
DERIVED ITS JURISDICTION TO ACT."  CONGRESS ENTRUSTED THE BOARD, NOT
THE COURTS, WITH THE POWER TO DRAW INFERENCES FROM THE FACTS.  NATIONAL
LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261,
271; NATIONAL LABOR RELATIONS BOARD V. FALK CORP., 308 U.S. 453, 461. 
THE BOARD, LIKE OTHER EXPERT AGENCIES DEALING WITH SPECIALIZED FIELDS
(SEE ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 146;
SWAYNE & HOYT V. UNITED STATES, 300 U.S. 297, 304) HAS THE FUNCTION OF
APPRAISING CONFLICTING AND CIRCUMSTANTIAL EVIDENCE, AND THE WEIGHT AND
CREDIBILITY OF TESTIMONY. 

THE BOARD HAD THE RIGHT TO BELIEVE THAT THE MAINTENANCE OF THE
COMPANY UNION DOWN TO THE DATE WHEN INDEPENDENT'S MEMBERSHIP DRIVE WAS
COMPLETED WAS NOT A MERE COINCIDENCE.  THE CIRCUMSTANTIAL EVIDENCE
MAKES CREDIBLE THE FINDING THAT COMPLETE FREEDOM OF CHOICE ON THE PART
OF THE EMPLOYEES WAS EFFECTIVELY FORESTALLED BY MAINTENANCE OF THE
COMPANY UNION BY THE EMPLOYER UNTIL ITS ABANDONMENT WOULD COINCIDE WITH
THE RECOGNITION OF INDEPENDENT.  THE DECLARED HOSTILITY TOWARDS AN
"OUTSIDE" UNION, THE LONG PRACTICE OF INDUSTRIAL ESPIONAGE, THE QUICK
RECOGNITION OF INDEPENDENT, THE SUPPORT GIVEN INDEPENDENT'S MEMBERSHIP
DRIVE BY SOME OF THE SUPERVISORY STAFF, THE PROMINENCE OF COMPANY UNION
REPRESENTATIVES IN THAT DRIVE, THE FAILURE OF THE EMPLOYER TO WIPE THE
SLATE CLEAN AND ANNOUNCE THAT THE EMPLOYEES HAD A FREE CHOICE, THE
BELATED INSTRUCTIONS TO THE SUPERVISORY STAFF NOT TO INTERFERE - ALL
CORROBORATE THE CONCLUSION THAT THE EMPLOYER FACILITATED AND AIDED THE
SUBSTITUTION OF THE UNION, WHICH IT PREFERRED, FOR ITS OLD COMPANY
UNION.  BUT RESPONDENTS CONTEND THAT THERE IS NO EVIDENCE THAT THE
EMPLOYEES HAD A SETTLED CONVICTION THAT THE EMPLOYER PREFERRED A
CERTAIN TYPE OF LABOR ORGANIZATION OR THAT THEY WERE UNDER COMPULSION
FROM THE EMPLOYER IN CHOOSING BETWEEN INDEPENDENT AND AMALGAMATED. 
THERE WERE, HOWEVER, FORCES AT WORK IN THE PLANT WHICH MAKE TENABLE THE
CONCLUSION OF THE BOARD THAT THE EMPLOYER HAD INTRUDED SO AS
EFFECTIVELY TO RESTRAIN THE EMPLOYEES' CHOICE.  THE EMPLOYER'S ATTITUDE
TOWARDS AN "OUTSIDE" UNION COUPLED WITH THE DISCHARGE OF SALMONS AND
NOVAK FOR ACTIVITIES ON BEHALF OF AMALGAMATED WOULD TEND TO HAVE AS
POTENT AN EFFECT AS DIRECT STATEMENTS TO THE EMPLOYEES THAT THEY COULD
NOT AFFORD TO RISK SELECTION OF AMALGAMATED.  THAT THE DISCRIMINATION
AGAINST SALMONS HAD SOME EFFECT IS NOT DENIED, FOR FROLING, A WITNESS
FOR INDEPENDENT, INSISTED THAT EVEN HE FURTIVELY SOLICITED FOR
INDEPENDENT BECAUSE OF THE PRICE PAID BY SALMONS.  WHEN THAT
DISCRIMINATION IS CONTRASTED TO THE APPARENT ACQUIESCENCE BY THE
MANAGEMENT IN THE OPEN SOLICITATION BY INDEPENDENT, WE CANNOT SAY THAT
THE BOARD WAS UNJUSTIFIED IN THE CONCLUSION WHICH IT DREW.  AS WE
STATED IN INTERNATIONAL ASSOCIATION OF MACHINISTS V. NATIONAL LABOR
RELATIONS BOARD, 311 U.S. 72, 78, "SLIGHT SUGGESTIONS AS TO THE
EMPLOYERS CHOICE BETWEEN UNIONS MAY HAVE TELLING EFFECT AMONG MEN WHO
KNOW THE CONSEQUENCES OF INCURRING THAT EMPLOYER'S STRONG
DISPLEASURE."  NOR DOES THE BOARD LACK THE POWER TO GIVE WEIGHT TO THE
ACTIVITIES OF SOME OF THE SUPERVISORY EMPLOYEES ON BEHALF OF
INDEPENDENT, EVEN THOUGH THEY DID NOT HAVE THE POWER TO HIRE OR TO
FIRE.  AS WE INDICATED IN INTERNATIONAL ASSOCIATION OF MACHINISTS V.
NATIONAL LABOR RELATIONS BOARD, SUPRA, THE STRICT RULES OF RESPONDEAT
SUPERIOR ARE NOT APPLICABLE TO SUCH A SITUATION.  IF THE WORDS OR DEEDS
OF THE SUPERVISORY EMPLOYEES, TAKEN IN THEIR SETTING, WERE REASONABLY
LIKELY TO HAVE RESTRAINED THE EMPLOYEES' CHOICE AND IF THE EMPLOYER MAY
FAIRLY BE SAID TO HAVE BEEN RESPONSIBLE FOR THEM, THEY ARE A PROPER
BASIS FOR THE CONCLUSION THAT THE EMPLOYER DID INTERFERE.  IF THE
EMPLOYEES "WOULD HAVE JUST CAUSE TO BELIEVE THAT SOLICITORS PROFESSEDLY
FOR A LABOR ORGANIZATION WERE ACTING FOR AND ON BEHALF OF THE
MANAGEMENT, THE BOARD WOULD BE JUSTIFIED IN CONCLUDING THAT THEY DID
NOT HAVE THE COMPLETE AND UNHAMPERED FREEDOM OF CHOICE WHICH THE ACT
CONTEMPLATES."  INTERNATIONAL ASSOCIATION OF MACHINISTS V. NATIONAL
LABOR RELATIONS BOARD, SUPRA.  HERE SUCH INFERENCES WERE WHOLLY
JUSTIFIED.  THE ATTITUDE OF THE EMPLOYER TOWARDS AN "OUTSIDE"
ORGANIZATION WAS CLEARLY CONVEYED.  WHEN THAT WAS FOLLOWED BY
SOLICITATION FOR INDEPENDENT ON THE PART OF SUPERVISORS WHO HAD GENERAL
AUTHORITY OVER THE MEN, IT WOULD BE UNFAIR TO CONCLUDE THAT THE
EMPLOYEES DID NOT FEEL AN ACTUAL PRESSURE FROM THE MANAGEMENT.  THAT
FACT, THE FAILURE OF THE EMPLOYER TO ANNOUNCE ITS IMPARTIALITY, ITS
DELAY IN ADVISING THE SUPERVISORS TO REMAIN NEUTRAL UNTIL INDEPENDENT
HAD ACQUIRED ITS MAJORITY, THE FAVORS SHOWN INDEPENDENT, THE DISCHARGE
OF SALMONS AND NOVAK, ITS PAST UNION POLICY, ALL ARE PART OF THE
IMPONDERABLES WHICH THE BOARD WAS ENTITLED TO APPRAISE.  THE FACT THAT
THESE VARIOUS FORCES AT WORK WERE SUBTLE RATHER THAN DIRECT DOES NOT
MEAN THAT THEY WERE NONETHELESS EFFECTIVE.  INTIMATIONS OF AN
EMPLOYER'S PREFERENCE, THOUGH SUBTLE, MAY BE AS POTENT AS OUTRIGHT
THREATS OF DISCHARGE. 

RESPONDENTS SUGGEST THAT AN ORDER OF DISESTABLISHMENT WOULD MAKE
INDEPENDENT AN INNOCENT VICTIM OF THE EMPLOYER'S INACTION OR OF ITS
UNWELCOME ACTION.  IT IS URGED THAT THE SUBSEQUENT CONDUCT OF
INDEPENDENT DEMONSTRATES ITS INDEPENDENCE AND THAT AN ORDER DIRECTING
THE EMPLOYER TO CEASE AND DESIST ALL INTERFERENCE WITH THE EMPLOYEES
AND WITH INDEPENDENT IS WHOLLY ADEQUATE FOR THE EVIL AT HAND.  THE
BOARD, HOWEVER, WAS NOT FORCED TO CONCLUDE THAT THE SUBSEQUENT
ACTIVITIES OF INDEPENDENT ERASED THE EFFECTS OF THE EMPLOYER'S EARLIER
DISCRIMINATION, ANY MORE THAN IT WAS COMPELLED TO BELIEVE THAT THE
EMPLOYER'S LATER SHOW OF IMPARTIALITY OBLITERATED THE CONSEQUENCES OF
ITS PRIOR INTERFERENCE WITH THE EMPLOYEES' FREEDOM OF CHOICE.  WE
CANNOT ASSUME THAT THE EMPLOYEES WILL BE FREE FROM IMPROPER RESTRAINTS
AND WILL HAVE THE COMPLETE FREEDOM OF CHOICE WHICH THE ACT CONTEMPLATES
WHERE THE EFFECT OF THE UNFAIR LABOR PRACTICE IS NOT COMPLETELY
DISSIPATED.  THE BOARD NOT THE COURTS DETERMINES UNDER THIS STATUTORY
SCHEME HOW THE EFFECT OF UNFAIR LABOR PRACTICES MAY BE EXPUNGED. 
NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, SUPRA;
NATIONAL LABOR RELATIONS BOARD V. BRADFORD DYEING ASSN., 310 U.S. 318;
INTERNATIONAL ASSOCIATION OF MACHINISTS V. NATIONAL LABOR RELATIONS
BOARD, SUPRA. 

THE ORDER OF DISESTABLISHMENT MUST BE ENFORCED. 

DISCHARGES OF EMPLOYEES.  THE COURT BELOW REJECTED THE FINDING OF THE
BOARD THAT SALMONS HAD BEEN DISCHARGED IN VIOLATION OF SEC. 8(1) AND
(3) OF THE ACT.  FOR THE REASONS ALREADY STATED, WE THINK THAT THE
COURT ERRED AND THAT THE BOARD WAS RIGHT.  FN7 

THE BOARD FOUND THAT IN APRIL, 1937, EMPLOYMENT MANAGER STASKEY
CONDITIONED THE EMPLOYMENT OF FRANK SOLINKO UPON THE ACCEPTANCE OF
MEMBERSHIP IN THE INDEPENDENT BY HIS FATHER, PETE SOLINKO; AND THAT
THEREFORE THE COMPANY HAD VIOLATED SEC. 8(3) OF THE ACT.  FN8  THE
BOARD CREDITED THE TESTIMONY OF PETE AND FRANK SOLINKO AGAINST
TESTIMONY OF STASKEY AND AN EMPLOYEE NAMED KOWATCH.  KOWATCH WAS A
SOLICITOR FOR INDEPENDENT WHOM PETE SOLINKO SAID STASKEY HAD TOLD HIM
TO SEE.  PETE, A MEMBER OF AMALGAMATED, JOINED INDEPENDENT.  SO DID
FRANK, WHO LATER, HOWEVER, JOINED AMALGAMATED.  THE EVIDENCE IS
SOMEWHAT CONFUSING.  BUT EVEN ACCORDING TO STASKEY, PETE SOLINKO DID
SHOW HIM AN INDEPENDENT CARD THE DAY FRANK WAS HIRED.  THE COURT BELOW
NOTED THAT EVEN IF THE TESTIMONY OF PETE WERE TRUE, THE CONVERSATION
OCCURRED TWO MONTHS BEFORE FRANK WAS HIRED; AND EVEN IF IT TOOK PLACE
ON THE DAY HE WAS HIRED, THEN IT WAS AFTER INDEPENDENT HAD BEEN
RECOGNIZED BY THE COMPANY AS THE BARGAINING AGENT FOR THE EMPLOYEES. 
WE THINK, HOWEVER, THAT THE BOARD'S FINDING WAS JUSTIFIED.  WHENEVER
THE CONVERSATION TOOK PLACE, THE CONDITIONING OF FRANK'S EMPLOYMENT
UPON PETE'S JOINING INDEPENDENT WAS A VIOLATION OF SEC. 8(3) OF THE ACT
IN ABSENCE OF A VALID CLOSED-SHOP AGREEMENT, NOT PRESENT HERE.  VIEWED
IN THAT LIGHT, IT ALSO CORROBORATES THE CONCLUSION OF THE BOARD THAT
THE EMPLOYER INTERFERED WITH THE COLLECTIVE BARGAINING PROCESS BY
SUPPORTING INDEPENDENT, THOUGH THE EPISODE TOOK PLACE AFTER
INDEPENDENT'S MEMBERSHIP DRIVE WAS COMPLETED. 

KARBOL AND CUMORICH WERE DISCHARGED MAY 19, 1937.  IN APRIL, 1937,
BELOV, ACCORDING TO THEIR TESTIMONY, HAD ASKED THEM TO JOIN
INDEPENDENT.  THEY REFUSED.  IN THE LATTER PART OF APRIL, 1937, THEY
JOINED AMALGAMATED.  THE COMPANY'S CLAIM IS THAT THEY WERE DISCHARGED
FOR UNSATISFACTORY WORK AFTER TIME STUDIES HAD SHOWN THEIR INEFFICIENCY
AND AFTER THE DAY FOREMAN, MCKINNEY, HAD WARNED THEM THAT THEIR WORK
WAS NOT SATISFACTORY.  ON THE OTHER HAND, THEY DENIED THAT ANYONE HAD
GIVEN THEM ANY SUCH WARNING OR HAD CRITICIZED THEIR WORK; THEY
TESTIFIED THAT AT THE TIME OF THEIR DISCHARGE BELOV STATED THAT THEY
WERE GOOD WORKMEN AND THAT HE DID NOT KNOW WHY THEY WERE DISCHARGED. 
THE BOARD REVIEWED THE TIME STUDIES AND FOUND THEY DID NOT REVEAL WITH
ANY DEGREE OF PRECISION THE RELATIVE EFFICIENCY OF THE MEN.  IT
CONCLUDED THAT THEY WERE DISCHARGED BECAUSE THEY JOINED AMALGAMATED. 
THE EVIDENCE AS TO INEFFICIENCY IS QUITE INCONCLUSIVE.  THE BOARD WAS
JUSTIFIED IN RELYING ON CIRCUMSTANTIAL EVIDENCE OF DISCRIMINATION AND
WAS NOT REQUIRED TO DENY RELIEF BECAUSE THERE WAS NO DIRECT EVIDENCE
THAT THE EMPLOYER KNEW THESE MEN HAD JOINED AMALGAMATED AND WAS
DISPLEASED OR WANTED TO MAKE AN EXAMPLE OF THEM. 

THE COURT BELOW ALSO REFUSED TO ENFORCE THE BOARD'S ORDER REINSTATING
AND MAKING WHOLE KALAMARIE WHO WAS DISCHARGED ACCORDING TO THE BOARD
BECAUSE OF HIS UNION ACTIVITIES.  HE, LIKE KARBOL AND CUMORICH, DID NOT
ACCEDE TO THE SOLICITATION OF BELOV ON BEHALF OF INDEPENDENT.  HE HAD
JOINED AMALGAMATED IN MARCH, 1937, WAS AN ACTIVE SOLICITOR FOR IT, AND
SERVED ON ITS GRIEVANCE COMMITTEE.  AS A MEMBER OF THAT COMMITTEE, HE
CALLED ON PLANT MANAGER BERRY TO PROTEST THE LAY-OFF OF A UNION MAN. 
SHORTLY THEREAFTER, BELOV, KALAMARIE'S NIGHT BOSS, RECEIVED
INSTRUCTIONS FROM THE DAY FOREMAN TO LAY KALAMARIE OFF FOR A WEEK IF
HIS WORK DID NOT IMPROVE.  NOVEMBER 30, 1937, HE WAS PERMANENTLY LAID
OFF FOR AN ALLEGED LACK OF WORK AS A WELDER AND IN CONNECTION WITH A
GENERAL REDUCTION OF EMPLOYEES.  UNTIL HIS PROMOTION AS A WELDER A FEW
MONTHS EARLIER KALAMARIE FOR SOME TIME HAD BEEN AN ACETYLENE BURNER. 
HE TESTIFIED THAT WHEN HE TOOK THE JOB AS WELDER, HE WAS PROMISED THAT
HE COULD GO BACK TO BURNING WITHOUT LOSS OF HIS SENIORITY RIGHTS IF
WELDING RAN OUT.  THIS WAS DENIED BY THE FOREMAN.  WHEN HE WAS LAID
OFF, MEN JUNIOR TO HIM AS BURNERS WERE RETAINED.  HE PROTESTED.  THE
COMPANY INSISTS THAT THE REFUSAL TO RESTORE KALAMARIE TO HIS OLD
POSITION AS BURNER WAS CONSISTENT WITH ITS OCCUPATIONAL SENIORITY
POLICY.  ON THIS THERE IS SOME CONTRADICTION IN THE RECORD.  THERE IS
TESTIMONY THAT UNDER COMPANY PRACTICE AN EMPLOYEE RETAINED (OR AT LEAST
MIGHT BE GIVEN) HIS ORIGINAL SENIORITY IF HE WAS PROMOTED TO ANOTHER
POSITION IN THE SAME DEPARTMENT.  THE REASONS STATED FOR NOT RESTORING
KALAMARIE TO HIS OLD SENIORITY POSITION WERE THAT HE DID NOT ASK TO BE
PUT BACK AND THAT THE COMPANY WOULD HAVE HAD TO LAY OFF A BURNER SENIOR
TO HIM.  THESE STATEMENTS WERE CONTRARY TO THE FACTS AS FOUND BY THE
BOARD.  ON THIS STATE OF THE RECORD WE THINK THAT THE BOARD WAS
JUSTIFIED IN CONCLUDING THAT KALAMARIE WAS IN FACT DISCHARGED BECAUSE
OF HIS ACTIVITIES FOR AMALGAMATED. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT
COURT OF APPEALS WITH DIRECTIONS TO ENFORCE THE BOARD'S ORDER IN FULL. 
REVERSED. 

FN1  THESE PROCEEDINGS WERE INSTITUTED ON CHARGES FILED IN 1937 AND
1938 BY LODGE 1604 OF AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN
WORKERS OF NORTH AMERICA, AFFILIATED WITH THE STEEL WORKERS ORGANIZING
COMMITTEE, AND THROUGH IT WITH THE COMMITTEE FOR INDUSTRIAL
ORGANIZATION.  THE COMPLAINT, AS AMENDED, CHARGED THAT THE EMPLOYER,
RESPONDENT IN NO. 235, HAD ENGAGED IN UNFAIR LABOR PRACTICES WITHIN THE
MEANING OF SEC. 8(1), (2), AND (3) OF THE ACT; 29 U.S.C. SEC. 158(1),
(2), AND (3).  INDEPENDENT UNION OF CRAFTSMEN, RESPONDENT IN NO. 236,
WAS ALLOWED TO INTERVENE, WAS REPRESENTED BY COUNSEL AND PARTICIPATED
THROUGHOUT THE PROCEEDINGS. 

FN2  THE BOARD DID NOT SUSTAIN THE CHARGES THAT CERTAIN OTHER
EMPLOYEES HAD BEEN DISCHARGED BECAUSE OF THEIR UNION ACTIVITIES. 

FN3  SUBCOMMITTEE OF THE COMMITTEE ON EDUCATION AND LABOR, UNITED
STATES SENATE, OF WHICH SENATOR ROBERT M. LA FOLLETTE, JR., WAS
CHAIRMAN.  THIS SUBCOMMITTEE ACTED PURSUANT TO S. RES. 266, 74TH CONG.,
2D SESS., AND HELD EXTENSIVE HEARINGS BEGINNING IN 1936. 

FN4  SEE NOTE 1, SUPRA.  AMALGAMATED APPARENTLY HAD ABOUT 400 MEMBERS
BEFORE INDEPENDENT STARTED ITS MEMBERSHIP DRIVE IN APRIL, 1937. 

FN5  SALMONS WAS REHIRED ON DECEMBER 21, 1936, AFTER MEDIATION BY THE
BOARD ON THE UNDERSTANDING THAT HE WOULD NOT ENGAGE IN UNION ACTIVITIES
ON COMPANY TIME. 

FN6  NOVAK WAS REINSTATED IN JANUARY, 1937, WITH THE UNDERSTANDING
THAT HE WOULD NOT ENGAGE IN UNION ACTIVITIES ON COMPANY TIME. 
ACCORDING TO HIM, THE CONDITION EXTENDED TO UNION ACTIVITIES AT ALL
TIMES.  ACCORDING TO THE COMPANY, IT COVERED ONLY UNION ACTIVITIES ON
COMPANY TIME.  THE BOARD DID NOT RESOLVE THE CONFLICT BUT NOTED THAT
NOVAK AS A RESULT OF HIS UNDERSTANDING, DID NOT JOIN AMALGAMATED UNTIL
AFTER THE ACT HAD BEEN UPHELD IN APRIL, 1937.  NOVAK DELAYED ACCEPTING
THE PROPOSAL OF REINSTATEMENT BECAUSE OF THE POSSIBLE IMPLICATION THAT
THEREBY HE WOULD TACITLY ADMIT THAT HE HAD EARLIER ENGAGED IN UNION
ACTIVITIES. 

FN7  THE BOARD ORDERED NO AFFIRMATIVE RELIEF WITH RESPECT TO SALMONS
AS HE HAD BEEN REINSTATED UNDER AN AGREEMENT WITH THE COMPANY THAT HE
WOULD NOT RECEIVE BACK PAY. 

FN8  NO AFFIRMATIVE RELIEF WAS ORDERED AS RESPECTS PETE SOLINKO, WHO
WAS LAID OFF IN JANUARY, 1938. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE CONSIDERATION OR
DISPOSITION OF THIS CASE. 
..END :














BEST & CO. V. MAXWELL, 311 U.S. 454 


NO. 61.  ARGUED NOVEMBER 22, 1940.  - DECIDED DECEMBER 23, 1940.  - 216
N.C. 114 - 3 S.E.2D 292, REVERSED. 


1.  A STATE STATUTE WHICH LEVIES AN ANNUAL PRIVILEGE TAX OF $250 ON
EVERY PERSON OR CORPORATION, NOT A REGULAR RETAIL MERCHANT IN THE
STATE, WHO DISPLAYS SAMPLES IN ANY HOTEL ROOM OR HOUSE RENTED OR
OCCUPIED TEMPORARILY FOR THE PURPOSE OF SECURING RETAIL ORDERS, HELD
INVALID UNDER THE FEDERAL CONSTITUTION AS A DISCRIMINATION AGAINST
INTERSTATE COMMERCE.  P. 456. 

SO HELD AS APPLIED TO A NONRESIDENT MERCHANT WHO TOOK ORDERS IN THE
STATE AND SHIPPED INTERSTATE DIRECTLY TO CUSTOMERS; AND WHERE THE ONLY
CORRESPONDING FIXED-SUM LICENSE TAX EXACTED OF "REGULAR RETAIL
MERCHANTS" WAS $1 PER ANNUM FOR THE PRIVILEGE OF DOING BUSINESS. 

2.  THE FREEDOM OF COMMERCE WHICH ALLOWS THE MERCHANTS OF EACH STATE
A REGIONAL OR NATIONAL MARKET FOR THEIR GOODS MAY NOT BE FETTERED BY
LEGISLATION THE ACTUAL EFFECT OF WHICH IS TO DISCRIMINATE IN FAVOR OF
INTRASTATE BUSINESSES.  P. 457. 

BEST & COMPANY, INC. V. MAXWELL, COMMISSIONER OF REVENUE OF NORTH
CAROLINA. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

APPEAL FROM A JUDGMENT REVERSING A JUDGMENT FOR THE PLAINTIFF IN A
SUIT FOR REFUND OF A LICENSE TAX.  SEE ALSO 217 N.C. 134; 6 S.E.2D
893. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

APPELLANT, A NEW YORK RETAIL MERCHANDISE ESTABLISHMENT, RENTED A
DISPLAY ROOM IN A NORTH CAROLINA HOTEL FOR SEVERAL DAYS DURING
FEBRUARY, 1938, AND TOOK ORDERS FOR GOODS CORRESPONDING TO SAMPLES; IT
FILLED THE ORDERS BY SHIPPING DIRECT TO THE CUSTOMERS FROM NEW YORK
CITY.  BEFORE USING THE ROOM APPELLANT PAID UNDER PROTEST THE TAX
REQUIRED BY CHAPTER 127, SEC. 121(E), OF THE NORTH CAROLINA LAWS OF
1937, WHICH LEVIES AN ANNUAL PRIVILEGE TAX OF $250 ON EVERY PERSON OR
CORPORATION, NOT A REGULAR RETAIL MERCHANT IN THE STATE, WHO DISPLAYS
SAMPLES IN ANY HOTEL ROOM RENTED OR OCCUPIED TEMPORARILY FOR THE
PURPOSE OF SECURING RETAIL ORDERS.  FN1  APPELLANT NOT BEING A REGULAR
RETAIL MERCHANT OF NORTH CAROLINA ADMITTEDLY COMES WITHIN THE STATUTE. 
ASSERTING, HOWEVER, THAT THE TAX WAS UNCONSTITUTIONAL, ESPECIALLY IN
VIEW OF THE COMMERCE CLAUSE, IT BROUGHT THIS SUIT FOR A REFUND AND
SUCCEEDED IN THE TRIAL COURT.  THE SUPREME COURT OF NORTH CAROLINA
REVERSED AND THEN, BEING EVENLY DIVIDED ON REHEARING, ALLOWED THE
REVERSAL TO STAND.  FN2  THE PREVAILING OPINION CHARACTERIZED THE TAX
AS ONE ON THE COMMERCIAL USE OF TEMPORARY QUARTERS, WHICH IN ITS
OPERATION DID NOT DISCRIMINATE AGAINST INTERSTATE COMMERCE AND
THEREFORE DID NOT COME INTO CONFLICT WITH THE COMMERCE CLAUSE. 

THE COMMERCE CLAUSE FORBIDS DISCRIMINATION, WHETHER FORTHRIGHT OR
INGENIOUS.  FN3 IN EACH CASE IT IS OUR DUTY TO DETERMINE WHETHER THE
STATUTE UNDER ATTACK, WHATEVER ITS NAME MAY BE, WILL IN ITS PRACTICAL
OPERATION WORK DISCRIMINATION AGAINST INTERSTATE COMMERCE.  THIS
STANDARD WE THINK CONDEMNS THE TAX AT BAR.  NOMINALLY THE STATUTE TAXES
ALL WHO ARE NOT REGULAR RETAIL MERCHANTS IN NORTH CAROLINA, REGARDLESS
OF WHETHER THEY ARE RESIDENTS OR NONRESIDENTS.  WE MUST ASSUME,
HOWEVER, ON THIS RECORD THAT THOSE NORTH CAROLINA RESIDENTS COMPETING
WITH APPELLANT FOR THE SALE OF SIMILAR MERCHANDISE WILL NORMALLY BE
REGULAR RETAIL MERCHANTS.  THE RETAIL STORES OF THE STATE ARE THE
NATURAL OUTLETS FOR MERCHANDISE, NOT THOSE WHO SELL ONLY BY SAMPLE. 
SOME OF THESE LOCAL SHOPS MAY, LIKE APPELLANT, RENT TEMPORARY DISPLAY
ROOMS IN SECTIONS OF NORTH CAROLINA WHERE THEY HAVE NO PERMANENT STORE,
BUT EVEN THESE ESCAPE THE TAX AT BAR BECAUSE THE LOCATION OF THEIR
CENTRAL RETAIL STORE SOMEWHERE WITHIN THE STATE WILL QUALIFY THEM AS
"REGULAR RETAIL MERCHANTS IN THE STATE OF NORTH CAROLINA."  THE ONLY
CORRESPONDING FIXED-SUM LICENSE TAX TO WHICH APPELLANT'S REAL
COMPETITORS ARE SUBJECT IS A TAX OF $1 PER ANNUM FOR THE PRIVILEGE OF
DOING BUSINESS N4.  NONRESIDENTS WISHING TO DISPLAY THEIR WARES MUST
EITHER ESTABLISH THEMSELVES AS REGULAR NORTH CAROLINA RETAIL MERCHANTS
AT PROHIBITIVE EXPENSE, OR ELSE PAY THIS $250 TAX THAT BEARS NO
RELATION TO ACTUAL OR PROBABLE SALES BUT MUST BE PAID IN ADVANCE NO
MATTER HOW SMALL THE SALES TURN OUT TO BE.  INTERSTATE COMMERCE CAN
HARDLY SURVIVE IN SO HOSTILE AN ATMOSPHERE.  A $250 INVESTMENT IN
ADVANCE, REQUIRED OF OUT-OF-STATE RETAILERS BUT NOT OF THEIR REAL LOCAL
COMPETITORS, CAN OPERATE ONLY TO DISCOURAGE AND HINDER THE APPEARANCE
OF INTERSTATE COMMERCE IN THE NORTH CAROLINA RETAIL MARKET.  EXTRASTATE
MERCHANTS WOULD BE COMPELLED TO TURN OVER THEIR NORTH CAROLINA TRADE TO
REGULAR LOCAL MERCHANTS SELLING BY SAMPLE.  NORTH CAROLINA REGULAR
RETAIL MERCHANTS WOULD BENEFIT, BUT TO THE SAME EXTENT THE COMMERCE OF
THE NATION WOULD SUFFER DISCRIMINATION. 

THE FREEDOM OF COMMERCE WHICH ALLOWS THE MERCHANTS OF EACH STATE A
REGIONAL OR NATIONAL MARKET FOR THEIR GOODS IS NOT TO BE FETTERED BY
LEGISLATION, THE ACTUAL EFFECT OF WHICH IS TO DISCRIMINATE IN FAVOR OF
INTRASTATE BUSINESSES, WHATEVER MAY BE THE OSTENSIBLE REACH OF THE
LANGUAGE.  FN5  REVERSED. 

FN1  "(E)  EVERY PERSON, FIRM, OR CORPORATION, NOT BEING A REGULAR
RETAIL MERCHANT IN THE STATE OF NORTH CAROLINA, WHO SHALL DISPLAY
SAMPLES, GOODS, WARES, OR MERCHANDISE IN ANY HOTEL ROOM, OR IN ANY
HOUSE RENTED OR OCCUPIED TEMPORARILY, FOR THE PURPOSE OF SECURING
ORDERS FOR THE RETAIL SALE OF SUCH GOODS, WARES, OR MERCHANDISE SO
DISPLAYED, SHALL APPLY FOR IN ADVANCE AND PROCURE A STATE LICENSE FROM
THE COMMISSIONER OF REVENUE FOR THE PRIVILEGE OF DISPLAYING SUCH
SAMPLES, GOODS, WARES, OR MERCHANDISE, AND SHALL PAY AN ANNUAL
PRIVILEGE TAX OF TWO HUNDRED FIFTY DOLLARS ($250.00), WHICH LICENSE
SHALL ENTITLE SUCH PERSON, FIRM OR CORPORATION TO DISPLAY SUCH SAMPLES,
GOODS, WARES, OR MERCHANDISE IN ANY COUNTY IN THIS STATE." 

FN2  216 N.C. 114; 3 S.E.2D 292; 217 N.C. 134; 6 S.E.2D 893. 

FN3  WELTON V. MISSOURI, 91 U.S. 275, 282-283; GUY V. BALTIMORE, 100
U.S. 434; WEBBER V. VIRGINIA, 103 U.S. 344; HALE V. BIMCO TRADING CO.,
306 U.S. 375.  IN MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33, WE
POINTED OUT THAT THE LINE OF DECISIONS FOLLOWING ROBBINS V. SHELBY
COUNTY, 120 U.S. 489, READ IN THEIR PROPER HISTORICAL SETTING, RESTED
ON THE ACTUAL AND POTENTIAL DISCRIMINATION INHERENT IN CERTAIN FIXED
SUM LICENSE TAXES (PP. 55-57).  THERE IS NO OCCASION NOW TO REEXAMINE
THE PARTICULAR TAX STATUTES INVOLVED IN THOSE CASES. 

FN4  NORTH CAROLINA LAWS OF 1937, C. 127, SEC. 405. 

FN5  CF. BACARDI CORPORATION V. DOMENECH, ANTE, PP. 150, 156-157. 
..END :






















MILLIKEN V. MEYER, 311 U.S. 457 


NO. 66.  ARGUED DECEMBER 13, 1940.  - DECIDED DECEMBER 23, 1940.  - 105
COLO. 532 - 100 P.2D 151, REVERSED. 


1.  WHERE ITS JUDGMENT IS CHALLENGED IN ANOTHER STATE, THE
JURISDICTION OF A STATE COURT OVER THE PARTIES OR THE SUBJECT MATTER IS
OPEN TO INQUIRY.  P. 462. 

2.  IF THE JUDGMENT ON ITS FACE APPEARS TO BE A RECORD OF A COURT OF
GENERAL JURISDICTION, THEN JURISDICTION OVER THE PARTIES AND THE
SUBJECT MATTER WILL BE PRESUMED, UNLESS DISPROVED BY EXTRINSIC EVIDENCE
OR BY THE RECORD ITSELF.  P. 462. 

3.  WHERE A JUDGMENT OF A STATE COURT HAVING JURISDICTION OF THE
PARTIES AND THE SUBJECT MATTER IS CHALLENGED IN ANOTHER STATE, THE FULL
FAITH AND CREDIT CLAUSE OF THE FEDERAL CONSTITUTION PRECLUDES ANY
INQUIRY INTO THE MERITS OF THE CAUSE OF ACTION, THE LOGIC OR
CONSISTENCY OF THE DECISION, OR THE VALIDITY OF THE LEGAL PRINCIPLES ON
WHICH THE JUDGMENT IS BASED.  P. 462. 

4.  A JUDGMENT IN PERSONAM RENDERED IN THE STATE OF HIS DOMICILE
AGAINST A DEFENDANT WHO, PURSUANT TO A STATUTE OF THAT STATE PROVIDING
FOR THE SERVICE OF PROCESS ON ABSENT DEFENDANTS, WAS PERSONALLY SERVED
IN ANOTHER STATE, HELD VALID AND ENTITLED TO FULL FAITH AND CREDIT
UNDER THE FEDERAL CONSTITUTION.  P. 463. 

A COURT OF ANOTHER STATE CAN NOT REFUSE TO GIVE FULL FAITH AND CREDIT
TO SUCH JUDGMENT ON THE GROUND OF AN INCONSISTENCY BETWEEN THE JUDGMENT
AND THE FINDINGS. 

5.  AN INCIDENT OF DOMICILE IS AMENABILITY TO SUIT WITHIN THE STATE
EVEN DURING SOJOURNS WITHOUT THE STATE, WHERE THE STATE HAS PROVIDED A
REASONABLE METHOD FOR APPRISING THE ABSENT PARTY OF THE PROCEEDINGS
AGAINST HIM.  P. 464. 

MILLIKEN ET AL. V. MEYER, ADMINISTRATRIX. 

CERTIORARI TO THE SUPREME COURT OF COLORADO. 

CERTIORARI, 310 U.S. 622, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
WHICH DENIED FULL FAITH AND CREDIT TO A FOREIGN JUDGMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE COLORADO SUPREME COURT HELD NULL AND VOID A JUDGMENT OF THE
WYOMING COURT AGAINST THE CLAIM OF MILLIKEN THAT THAT JUDGMENT WAS
ENTITLED TO FULL FAITH AND CREDIT UNDER THE FEDERAL CONSTITUTION.  101
COLO. 564; 76 P.2D 420; 105 COLO. 532; 100 P.2D 151.  THE CASE IS HERE
ON A PETITION FOR CERTIORARI WHICH WE GRANTED BECAUSE OF THE
SUBSTANTIAL CHARACTER OF THE FEDERAL QUESTION WHICH IS RAISED. 

THE CONTROVERSY IS OVER A 1/64TH INTEREST IN PROFITS FROM OPERATION
OF CERTAIN COLORADO OIL PROPERTIES.  TRANSCONTINENTAL N1 ON AUGUST 31,
1922, CONTRACTED TO PAY MEYER 4/64THS OF THOSE PROFITS.  MILLIKEN
ASSERTED A CLAIM TO A TWO-THIRDS INTEREST IN THAT 4/64THS SHARE.  AS A
SETTLEMENT OF THAT DISPUTE TRANSCONTINENTAL ON MAY 3, 1924, CONTRACTED
TO PAY MILLIKEN A 2/64THS INTEREST AND MILLIKEN ASSIGNED  FN2  TO
TRANSCONTINENTAL ALL HIS CLAIMS AGAINST MEYER PERTAINING TO THE LANDS
IN QUESTION AND TO MEYER'S 4/64THS INTEREST IN THE PROFITS. 

LATER MILLIKEN INSTITUTED SUIT IN THE WYOMING COURT ALLEGING A JOINT
ADVENTURE WITH TRANSCONTINENTAL AND MEYER AND CHARGING A CONSPIRACY ON
THEIR PART TO DEFRAUD HIM OF HIS RIGHTS.  HE SOUGHT A CANCELLATION OF
THE CONTRACTS OF MAY 3, 1924, AND AN ACCOUNTING FROM TRANSCONTINENTAL
AND MEYER.  MEYER, WHO WAS ASSERTED TO BE A RESIDENT OF WYOMING, WAS
PERSONALLY SERVED WITH PROCESS IN COLORADO PURSUANT TO THE WYOMING
STATUTES; FN3  BUT HE MADE NO APPEARANCE IN THE WYOMING CAUSE.  FN4
TRANSCONTINENTAL APPEARED AND ANSWERED.  THE COURT FOUND THAT THERE WAS
A JOINT VENTURE BETWEEN MILLIKEN AND TRANSCONTINENTAL; THAT THE
CONTRACTS OF MAY 3, 1924, WERE VALID; AND THAT THE ACTION AGAINST
TRANSCONTINENTAL SHOULD BE DISMISSED WITH PREJUDICE.  IT FOUND,
HOWEVER, THAT THERE WAS A JOINT VENTURE BETWEEN MILLIKEN AND MEYER;
THAT THEY WERE ENTITLED TO SHARE EQUALLY IN 6/64THS OF THE NET PROFITS;
AND THAT, WHILE MEYER HAD REGULARLY RECEIVED 4/64THS, HE HAD REFUSED TO
ACCOUNT TO MILLIKEN FOR HIS 1/64TH PART.  THE COURT DID NOT PURPORT TO
DECREE THE 1/64TH INTEREST TO MILLIKEN OR ANYONE ELSE BUT ENTERED AN IN
PERSONAM JUDGMENT AGAINST MEYER FOR THE PROFITS WHICH MEYER HAD
WITHHELD FROM MILLIKEN, TOGETHER WITH INTEREST THEREON; AND ENJOINED
TRANSCONTINENTAL FROM PAYING, AND MEYER FROM RECEIVING, MORE THAN
3/64THS OF THE NET PROFITS.  THIS WAS ON JULY 11, 1931.  THEREAFTER THE
1/64TH SHARE WAS WITHHELD FROM MEYER AND PAID OVER TO MILLIKEN.  FN5
IN 1935 RESPONDENT INSTITUTED THIS SUIT  FN6  IN THE COLORADO COURT
PRAYING, INTER ALIA, FOR A JUDGMENT AGAINST MILLIKEN FOR THE SUMS
WITHHELD UNDER THE WYOMING JUDGMENT AND PAID TO MILLIKEN, FOR AN
INJUNCTION AGAINST MILLIKEN ATTEMPTING TO ENFORCE THE WYOMING JUDGMENT,
AND FOR A DECREE THAT THE WYOMING JUDGMENT WAS A NULLITY FOR WANT OF
JURISDICTION OVER MEYER OR HIS PROPERTY.  THE BILL ALLEGED, INTER ALIA,
THAT MEYER AT THE TIME OF SERVICE IN THE WYOMING COURT HAD LONG CEASED
TO BE A RESIDENT OF WYOMING AND WAS A RESIDENT OF COLORADO; THAT THE
SERVICE OBTAINED ON HIM DID NOT GIVE THE WYOMING COURT JURISDICTION OF
HIS PERSON OR PROPERTY; AND THAT SUCH JUDGMENT WAS VIOLATIVE OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  MILLIKEN'S ANSWER ALLEGED,
INTER ALIA, THAT MEYER WAS A RESIDENT OF WYOMING AT THE TIME OF THE
WYOMING ACTION AND THAT THE WYOMING JUDGMENT WAS ENTITLED TO FULL FAITH
AND CREDIT IN COLORADO UNDER THE FEDERAL CONSTITUTION.  THE COLORADO
COURT, ON ISSUES JOINED, FOUND THAT MEYER WAS DOMICILED IN WYOMING WHEN
THE WYOMING SUIT WAS COMMENCED, THAT THE WYOMING STATUTES FOR
SUBSTITUTED SERVICE WERE CONSTITUTIONAL, THAT THE AFFIDAVIT FOR
CONSTRUCTIVE SERVICE  FN7  ON MEYER WAS FILED IN GOOD FAITH,
SUBSTANTIALLY CONFORMED TO THE WYOMING STATUTE AND STATED THE TRUTH,
THAT WYOMING HAD JURISDICTION OVER THE PERSON OF MEYER, THAT THE
WYOMING DECREE  FN8  WAS NOT VOID, AND THAT THE BILL SHOULD BE
DISMISSED. 

THAT JUDGMENT WAS REVERSED BY THE SUPREME COURT OF COLORADO.  IT DID
NOT PASS ON THE QUESTION OF WHETHER OR NOT THE WYOMING COURT HAD
JURISDICTION OF THE PARTIES AND SUBJECT MATTER.  IT HELD THAT THE
WYOMING DECREE WAS VOID ON ITS FACE BECAUSE OF AN IRRECONCILABLE
CONTRADICTION BETWEEN THE FINDINGS AND THE DECREE.  IN ITS VIEW THE
FINDING OF THE WYOMING COURT THAT MILLIKEN'S ASSIGNMENT OF MAY 3, 1924,
TO TRANSCONTINENTAL OF HIS CLAIMS AGAINST MEYER WAS VALID, DEPRIVED THE
COURT OF ANY GROUND UPON WHICH IT COULD PREDICATE A JUDGMENT AGAINST
MEYER, SINCE THE ONLY BASIS FOR AN ACTION BY MILLIKEN AGAINST MEYER
RESTED UPON THE CLAIM BEFORE ITS ASSIGNMENT. 

WHERE A JUDGMENT RENDERED IN ONE STATE IS CHALLENGED IN ANOTHER, A
WANT OF JURISDICTION OVER EITHER THE PERSON OR THE SUBJECT MATTER IS OF
COURSE OPEN TO INQUIRY.  GROVER & BAKER SEWING MACHINE CO. V.
RADCLIFFE, 137 U.S. 287; ADAM V. SAENGER, 303 U.S. 59.  BUT IF THE
JUDGMENT ON ITS FACE APPEARS TO BE A "RECORD OF A COURT OF GENERAL
JURISDICTION, SUCH JURISDICTION OVER THE CAUSE AND THE PARTIES IS TO BE
PRESUMED UNLESS DISPROVED BY EXTRINSIC EVIDENCE, OR BY THE RECORD
ITSELF."  ADAM V. SAENGER, SUPRA, AT P. 62.  IN SUCH CASE THE FULL
FAITH AND CREDIT CLAUSE OF THE CONSTITUTION PRECLUDES ANY INQUIRY INTO
THE MERITS OF THE CAUSE OF ACTION, THE LOGIC OR CONSISTENCY OF THE
DECISION, OR THE VALIDITY OF THE LEGAL PRINCIPLES ON WHICH THE JUDGMENT
IS BASED.  FAUNTLEROY V. LUM, 210 U.S. 230; ROCHE V. MCDONALD, 275 U.S.
449; TITUS V. WALLICK, 306 U.S. 282.  WHATEVER MISTAKES OF LAW MAY
UNDERLIE THE JUDGMENT (COOPER V. REYNOLDS, 10 WALL.  308) IT IS
"CONCLUSIVE AS TO ALL THE MEDIA CONCLUDENDI."  FAUNTLEROY V. LUM,
SUPRA, AT P. 237. 

ACCORDINGLY, IF THE WYOMING COURT HAD JURISDICTION OVER MEYER, THE
HOLDING BY THE COLORADO SUPREME COURT THAT THE WYOMING JUDGMENT WAS
VOID BECAUSE OF AN INCONSISTENCY BETWEEN THE FINDINGS AND THE DECREE
WAS NOT WARRANTED. 

ON THE FINDINGS OF THE COLORADO TRIAL COURT, NOT IMPAIRED BY THE
COLORADO SUPREME COURT, IT IS CLEAR THAT WYOMING HAD JURISDICTION OVER
MEYER IN THE 1931 SUIT.  DOMICILE IN THE STATE IS ALONE SUFFICIENT TO
BRING AN ABSENT DEFENDANT WITHIN THE REACH OF THE STATE'S JURISDICTION
FOR PURPOSES OF A PERSONAL JUDGMENT BY MEANS OF APPROPRIATE SUBSTITUTED
SERVICE.  SUBSTITUTED SERVICE IN SUCH CASES HAS BEEN QUITE UNIFORMLY
UPHELD WHERE THE ABSENT DEFENDANT WAS SERVED AT HIS USUAL PLACE OF
ABODE IN THE STATE (HUNTLEY V. BAKER, 33 HUN 578; HURLBUT V. THOMAS, 55
CONN. 181; 10 A. 556; HARRYMAN V. ROBERTS, 52 MD. 64) AS WELL AS WHERE
HE WAS PERSONALLY SERVED WITHOUT THE STATE.  IN RE HENDRICKSON, 40 S.D.
211; 167 N.W. 172.  THAT SUCH SUBSTITUTED SERVICE MAY BE WHOLLY
ADEQUATE TO MEET THE REQUIREMENTS OF DUE PROCESS WAS RECOGNIZED BY THIS
COURT IN MCDONALD V. MABEE, 243 U.S. 90, DESPITE EARLIER INTIMATIONS TO
THE CONTRARY.  SEE PENNOYER V. NEFF, 95 U.S. 714, 733; BURDICK, SERVICE
AS A REQUIREMENT OF DUE PROCESS IN ACTIONS IN PERSONAM, 20 MICH. L.
REV. 422.  ITS ADEQUACY SO FAR AS DUE PROCESS IS CONCERNED IS DEPENDENT
ON WHETHER OR NOT THE FORM OF SUBSTITUTED SERVICE PROVIDED FOR SUCH
CASES AND EMPLOYED IS REASONABLY CALCULATED TO GIVE HIM ACTUAL NOTICE
OF THE PROCEEDINGS AND AN OPPORTUNITY TO BE HEARD.  IF IT IS, THE
TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE (MCDONALD V.
MABEE, SUPRA) IMPLICIT IN DUE PROCESS ARE SATISFIED.  HERE THERE CAN BE
NO QUESTION ON THAT SCORE.  MEYER DID NOT MERELY RECEIVE ACTUAL NOTICE
OF THE WYOMING PROCEEDINGS.  WHILE OUTSIDE THE STATE, HE WAS PERSONALLY
SERVED IN ACCORDANCE WITH A STATUTORY SCHEME WHICH WYOMING HAD PROVIDED
FOR SUCH OCCASIONS.  AND IN OUR VIEW THE MACHINERY EMPLOYED MET ALL THE
REQUIREMENTS OF DUE PROCESS.  CERTAINLY THEN MEYER'S DOMICILE IN
WYOMING WAS A SUFFICIENT BASIS FOR THAT EXTRATERRITORIAL SERVICE.  AS
IN CASE OF THE AUTHORITY OF THE UNITED STATES OVER ITS ABSENT CITIZENS
(BLACKMER V. UNITED STATES, 284 U.S. 421), THE AUTHORITY OF A STATE
OVER ONE OF ITS CITIZENS IS NOT TERMINATED BY THE MERE FACT OF HIS
ABSENCE FROM THE STATE.  THE STATE WHICH ACCORDS HIM PRIVILEGES AND
AFFORDS PROTECTION TO HIM AND HIS PROPERTY BY VIRTUE OF HIS DOMICILE
MAY ALSO EXACT RECIPROCAL DUTIES.  "ENJOYMENT OF THE PRIVILEGES OF
RESIDENCE WITHIN THE STATE, AND THE ATTENDANT RIGHT TO INVOKE THE
PROTECTION OF ITS LAWS, ARE INSEPARABLE" FROM THE VARIOUS INCIDENCES OF
STATE CITIZENSHIP.  SEE LAWRENCE V. STATE TAX COMMISSION, 286 U.S. 276,
279; NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308.  THE
RESPONSIBILITIES OF THAT CITIZENSHIP ARISE OUT OF THE RELATIONSHIP TO
THE STATE WHICH DOMICILE CREATES.  THAT RELATIONSHIP IS NOT DISSOLVED
BY MERE ABSENCE FROM THE STATE.  THE ATTENDANT DUTIES, LIKE THE RIGHTS
AND PRIVILEGES INCIDENT TO DOMICILE, ARE NOT DEPENDENT ON CONTINUOUS
PRESENCE IN THE STATE.  ONE SUCH INCIDENT OF DOMICILE IS AMENABILITY TO
SUIT WITHIN THE STATE EVEN DURING SOJOURNS WITHOUT THE STATE, WHERE THE
STATE HAS PROVIDED AND EMPLOYED A REASONABLE METHOD FOR APPRISING SUCH
AN ABSENT PARTY OF THE PROCEEDINGS AGAINST HIM.  SEE RESTATEMENT,
CONFLICT OF LAWS, SECS. 47, 79; DODD, JURISDICTION IN PERSONAL ACTIONS,
23 ILL. L. REV. 427.  HERE SUCH A REASONABLE METHOD WAS SO PROVIDED AND
SO EMPLOYED.  REVERSED. 

FN1  TRANSCONTINENTAL OIL CO. IN JUNE, 1923, TRANSCONTINENTAL HAD
DISPOSED OF A ONE-HALF INTEREST IN THE PROPERTIES IN QUESTION TO TEXAS
PRODUCTION CO. IN APRIL, 1931, OHIO OIL CO. ACQUIRED THE REMAINING
INTEREST OF TRANSCONTINENTAL IN THE PROPERTIES. 

FN2  MILLIKEN'S SON, CARL S. MILLIKEN, HAD AN INTEREST IN THE
MILLIKEN CLAIM WHICH HE LIKEWISE ASSIGNED TO TRANSCONTINENTAL. 

FN3  WYO. COMP. STAT. 1920, SEC. 5636 PROVIDED:  "SERVICE BY
PUBLICATION MAY BE HAD IN EITHER OF THE FOLLOWING CASES:  ...  6.  IN
ACTIONS WHERE THE DEFENDANT, BEING A RESIDENT OF THIS STATE, HAS
DEPARTED FROM THE COUNTY OF HIS RESIDENCE WITH THE INTENT TO DELAY OR
DEFRAUD HIS CREDITORS, OR TO AVOID THE SERVICE OF A SUMMONS, OR KEEPS
HIMSELF CONCEALED WITH LIKE INTENT." 

SEC. 5641 PROVIDED: 

"PERSONAL SERVICE OUT OF STATE.  IN ALL CASES WHERE SERVICE MAY BE
MADE BY PUBLICATION UNDER THE PROVISIONS OF THIS CHAPTER, PERSONAL
SERVICE OF A COPY OF THE SUMMONS AND THE PETITION IN SAID ACTION MAY BE
MADE OUT OF THE STATE, AND SUCH SUMMONS WHEN ISSUED FOR SERVICE OUT OF
THE STATE, SHALL BE RETURNABLE AT THE OPTION OF THE PARTY HAVING IT
ISSUED, ON THE SECOND, THIRD OR FOURTH MONDAY AFTER ITS DATE, AND SHALL
REQUIRE THE DEFENDANT OR DEFENDANTS NAMED THEREIN TO ANSWER THE
PETITION IN SAID ACTION ON OR BEFORE THE THIRD SATURDAY AFTER THE
RETURN DAY NAMED IN SAID SUMMONS." 

FN4  HIS DEPOSITION, HOWEVER, WAS TAKEN ON ORAL INTERROGATORIES
CONCERNING HIS LEGAL RESIDENCE IN WYOMING. 

FN5  BY THE OHIO OIL CO. ONE OF THE VENDEES OF TRANSCONTINENTAL. 
THESE PAYMENTS WERE TO MARGARET M. MILLIKEN TO WHOM MILLIKEN'S
INTERESTS HAD BEEN ASSIGNED. 

FN6  TEXAS PRODUCTION CO. AND OHIO OIL CO. WERE JOINED AS
DEFENDANTS.  THEY FILED SEPARATE ANSWERS AND CROSS-COMPLAINTS WHICH ARE
NOT MATERIAL HERE.  IT SHOULD BE NOTED, HOWEVER, THAT THE OHIO OIL CO.
IN ITS ANSWER SET UP THE CONTRACT BETWEEN MILLIKEN AND TRANSCONTINENTAL
WHEREBY MILLIKEN ASSIGNED ALL OF HIS RIGHTS AGAINST MEYER IN THE LANDS
AND THE 4/64THS INTEREST IN QUESTION TO TRANSCONTINENTAL AND ALLEGED
THAT MILLIKEN WAS ESTOPPED THEREBY TO MAKE ANY CLAIMS AGAINST IT FOR
THE DISPUTED 1/64TH INTEREST. 

FN7  WHILE THE AFFIDAVIT FOR CONSTRUCTIVE SERVICE STATED IN
ACCORDANCE WITH SEC. 5636 OF THE WYOMING COMP. STAT., SUPRA, NOTE 3,
THAT MEYER CONCEALED HIMSELF IN ORDER TO AVOID SERVICE OF SUMMONS, THE
PRESENT RECORD DOES NOT SHOW WHETHER OR NOT THE WYOMING COURT SO
FOUND. 

FN8  THE WYOMING JUDGMENT DOES NOT SEEM TO HAVE BEEN PROVED BY
RESPONDENTS IN ACCORDANCE WITH THE PROVISIONS OF R.S. SEC. 905, 28
U.S.C. SEC. 687 IN THEIR SUIT IN COLORADO TO SET IT ASIDE.  NOR WAS
THAT JUDGMENT SO PROVED BY THE ANSWERS.  BUT SINCE THE COLORADO TRIAL
COURT GAVE THE WYOMING JUDGMENT FULL FAITH AND CREDIT DESPITE LACK OF
SUCH PROOF, RESPONDENTS CANNOT HERE CLAIM THAT THAT WAS ERROR. 
..END :







STONER V. NEW YORK LIFE INS. CO., 311 U.S. 464 


NO. 74.  ARGUED NOVEMBER 13, 1940.  - DECIDED DECEMBER 23, 1940.  - 109
F.2D 874, REVERSED. 


IN SUITS AGAINST AN INSURER UPON POLICIES PROVIDING FOR PAYMENT OF
BENEFITS AND WAIVER OF PREMIUMS IN THE EVENT OF THE INSURED'S "TOTAL
DISABILITY," AN INTERMEDIATE APPELLATE COURT OF MISSOURI HAD HELD THAT
THE EVIDENCE FOR THE INSURED WAS SUFFICIENT TO GO TO THE JURY. 
SUBSEQUENTLY, THE INSURER SUED THE INSURED IN A FEDERAL COURT IN THAT
STATE, FOR A DECLARATORY JUDGMENT THAT IT WAS NO LONGER OBLIGED TO PAY
DISABILITY BENEFITS OR TO WAIVE PAYMENT OF PREMIUMS.  IN THIS SUIT, THE
PARTIES WERE THE SAME AS IN THE EARLIER SUITS IN THE STATE COURTS, THE
ISSUES WERE IDENTICAL, AND THE EVIDENCE CONSISTED OF A TRANSCRIPT OF
THE EVIDENCE IN ONE OF THE STATE COURT SUITS, SUPPLEMENTED ONLY BY
ADDITIONAL ITEMS INTRODUCED BY, AND FAVORABLE TO, THE INSURED.  THE
SUIT WAS TRIED WITHOUT A JURY AND JUDGMENT WAS FOR THE INSURED.  HELD: 

1.  REVERSAL BY THE CIRCUIT COURT OF APPEALS, WITH DIRECTION TO ENTER
A DECLARATORY JUDGMENT FOR THE INSURER, WAS ERRONEOUS.  P. 467. 

2.  THE DECISION OF THE CIRCUIT COURT OF APPEALS, DETERMINING IN
EFFECT THAT THE EVIDENCE ON THE ISSUE OF TOTAL DISABILITY REQUIRED A
FINDING FOR THE INSURER, WAS INCONSISTENT WITH THE STATE LAW AS
ANNOUNCED BY THE INTERMEDIATE APPELLATE COURT OF THE STATE; AND THE
CIRCUIT COURT OF APPEALS WAS BOUND TO FOLLOW THE STATE LAW AS THUS
ANNOUNCED, SINCE THERE IS NO INDICATION THAT IT WOULD NOT BE FOLLOWED
IN LIKE CASE BY THE INTERMEDIATE APPELLATE COURT OF THE STATE OR BY THE
STATE SUPREME COURT.  P. 468. 

3.  THAT IN THE EARLIER SUITS THE BURDEN WAS ON THE INSURED TO PROVE
DISABILITY, WHILE HERE THE COURTS BELOW ASSUMED THAT THE BURDEN WAS ON
THE INSURER TO SHOW THAT DISABILITY NO LONGER EXISTED, IS IMMATERIAL. 
P. 469. 

4.  THE REQUISITE JURISDICTIONAL AMOUNT WAS INVOLVED, FOR IT WAS
EXCEEDED BY THE SUM OF THE BENEFIT PAYMENTS AND THE PREMIUMS IN
CONTROVERSY.  P. 469. 

STONER V. NEW YORK LIFE INSURANCE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 628, TO REVIEW THE REVERSAL OF A JUDGMENT
AGAINST THE INSURANCE COMPANY IN A SUIT INVOLVING THE QUESTION OF ITS
LIABILITY UPON DISABILITY PROVISIONS OF CONTRACTS OF LIFE INSURANCE. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

RESPONDENT INSURANCE COMPANY BROUGHT THIS SUIT IN THE FEDERAL
DISTRICT COURT FOR A DECLARATORY JUDGMENT THAT IT WAS NO LONGER
OBLIGATED TO MAKE DISABILITY PAYMENTS TO PETITIONER OR TO WAIVE PAYMENT
OF PREMIUMS UNDER THE TOTAL DISABILITY CLAUSES OF INSURANCE POLICIES
ISSUED TO PETITIONER PRIOR TO 1931.  THE QUESTION IS WHETHER THE
CIRCUIT COURT OF APPEALS SHOULD HAVE FOLLOWED TWO DECISIONS OF THE
KANSAS CITY COURT OF APPEALS IN EARLIER SUITS BETWEEN THE SAME
PARTIES. 

IN JUNE, 1931, PETITIONER FELL AND SERIOUSLY INJURED HIS LEFT ANKLE. 
THE INJURY IS PERMANENT.  FOR ABOUT TWO YEARS AFTER THE INJURY,
RESPONDENT PAID PETITIONER THE TOTAL DISABILITY BENEFITS AND WAIVED
PREMIUMS.  IN OCTOBER, 1933, IT NOTIFIED HIM THAT IT INTENDED TO CEASE
BENEFIT PAYMENTS AND WAIVER OF PREMIUMS BECAUSE IT NO LONGER CONSIDERED
HIM TOTALLY DISABLED. 

IN APRIL, 1934, PETITIONER BROUGHT SUIT IN A MISSOURI STATE COURT FOR
THE DISABILITY PAYMENTS ALLEGEDLY DUE AND UNPAID AT THAT TIME.  FROM A
VERDICT AND JUDGMENT FOR RESPONDENT HE APPEALED TO THE KANSAS CITY
COURT OF APPEALS, AN INTERMEDIATE STATE APPELLATE COURT.  THAT COURT
HELD THAT PETITIONER'S EVIDENCE WAS SUFFICIENT TO TAKE THE CASE TO THE
JURY AND THAT THE TRIAL JUDGE ERRED IN GIVING CERTAIN INSTRUCTIONS.  IT
REVERSED AND REMANDED THE CASE FOR A NEW TRIAL.  90 S.W.2D 784. 
RESPONDENT THEREUPON SOUGHT A WRIT OF CERTIORARI FROM THE MISSOURI
SUPREME COURT BUT WAS UNSUCCESSFUL.  IN CONSEQUENCE, THE ACTION IS
STILL PENDING BUT HAS NOT YET BEEN RETRIED. 

IN JUNE, 1936, AFTER REMAND OF THE FIRST CASE, PETITIONER INSTITUTED
TWO MORE ACTIONS, ALSO IN MISSOURI STATE COURTS, TO RECOVER DISABILITY
BENEFITS WHICH ALLEGEDLY HAD ACCRUED SINCE COMMENCEMENT OF THE FIRST
SUIT.  ONE ACTION WAS TRIED AND THIS TIME PETITIONER SECURED VERDICT
AND JUDGMENT FROM WHICH RESPONDENT APPEALED.  THE KANSAS CITY COURT OF
APPEALS AGAIN REVERSED BECAUSE OF ERROR IN THE INSTRUCTIONS, ALTHOUGH
IT HELD THAT PETITIONER'S EVIDENCE PRESENTED A CASE FOR THE JURY.  IT
REMANDED THE ACTION FOR A NEW TRIAL.  232 MO. APP. 1048.  114 S.W.2D
167.  BOTH OF THESE ACTIONS ALSO ARE PENDING TRIAL. 

AT THIS JUNCTURE RESPONDENT, A NEW YORK CORPORATION, STARTED THE
PRESENT SUIT AGAINST PETITIONER, A RESIDENT OF MISSOURI, IN THE
DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI.  IT SOUGHT A
DECLARATORY JUDGMENT THAT PETITIONER WAS NOT TOTALLY DISABLED WITHIN
THE MEANING OF THE DISABILITY CLAUSE, AND HENCE, THAT RESPONDENT WAS
NOT LIABLE FOR DISABILITY PAYMENTS OR WAIVER OF PREMIUMS FROM JUNE,
1936, UNTIL THE DATE OF SUIT.  TO PROVE ITS CASE RESPONDENT INTRODUCED
THE TRANSCRIPT OF TESTIMONY TAKEN IN THE SECOND OF THE EARLIER SUITS. 
PETITIONER SUPPLEMENTED THE TRANSCRIPT BY A STATEMENT OF RESPONDENT
AGAINST INTEREST, A PERSONAL DEPOSITION, AND THE TESTIMONY OF ANOTHER
DOCTOR.  THE TRIAL, WITHOUT A JURY, RESULTED IN A JUDGMENT FOR
PETITIONER, THE DISTRICT JUDGE FINDING THAT PETITIONER WAS TOTALLY
DISABLED WITHIN THE MEANING OF THE POLICIES.  THE CIRCUIT COURT OF
APPEALS REVERSED, HOWEVER, HOLDING THAT THE EVIDENCE ESTABLISHED THAT
PETITIONER WAS NOT TOTALLY DISABLED.  IT REMANDED WITH DIRECTIONS TO
ENTER A DECLARATORY JUDGMENT AS PRAYED BY RESPONDENT.  109 F.2D 874. 
WE GRANTED CERTIORARI ON OCTOBER 14, 1940. 

WE ARE OF OPINION THAT THE CIRCUIT COURT OF APPEALS ERRED IN FAILING
TO FOLLOW THE TWO DECISIONS OF THE KANSAS CITY COURT OF APPEALS IN
EARLIER SUITS BETWEEN THE SAME PARTIES INVOLVING THE SAME ISSUES OF LAW
AND FACT. 

WE HAVE RECENTLY HELD THAT IN CASES WHERE JURISDICTION RESTS ON
DIVERSITY OF CITIZENSHIP, FEDERAL COURTS, UNDER THE DOCTRINE OF ERIE
RAILROAD CO. V. TOMPKINS, 304 U.S. 64, MUST FOLLOW THE DECISIONS OF
INTERMEDIATE STATE COURTS IN THE ABSENCE OF CONVINCING EVIDENCE THAT
THE HIGHEST COURT OF THE STATE WOULD DECIDE DIFFERENTLY.  WEST V.
AMERICAN TELEPHONE & TELEGRAPH CO., ANTE, P. 223; FIDELITY UNION TRUST
CO. V. FIELD, ANTE, P. 169; SIX COMPANIES OF CALIFORNIA V. JOINT
HIGHWAY DISTRICT, ANTE, P. 180.  IN PARTICULAR THIS IS TRUE WHERE THE
INTERMEDIATE STATE COURT HAS DETERMINED THE PRECISE QUESTION IN ISSUE
IN AN EARLIER SUIT BETWEEN THE SAME PARTIES, AND THE HIGHEST COURT OF
THE STATE HAS REFUSED REVIEW.  WEST V. AMERICAN TELEPHONE & TELEGRAPH
CO., SUPRA. 

TWICE THE KANSAS CITY COURT OF APPEALS HAS HAD BEFORE IT APPEALS
INVOLVING THE SAME PARTIES, INSURANCE CONTRACTS, AND FACTS AS ARE
INVOLVED HERE.  STONER V. NEW YORK LIFE INS. CO., 90 S.W.2D 784; STONER
V. NEW YORK LIFE INS. CO., 232 MO. APP. 1048; 114 S.W.2D 167.  EACH
TIME RESPONDENT ARGUED THAT PETITIONER'S EVIDENCE FAILED TO PRESENT A
SUBMISSIBLE CASE.  90 S.W.2D 784, 790; 232 MO. APP. 1048; 114 S.W.2D
167, 168.  EACH TIME THE KANSAS CITY COURT OF APPEALS EXPRESSLY STATED
THAT THE EVIDENCE AS TO TOTAL DISABILITY PRESENTED A QUESTION FOR THE
JURY.  90 S.W.2D 784, 794, 797; 232 MO. APP. 1048; 114 S.W.2D 167,
169.  MOREOVER, IN APPROVING OR DISAPPROVING CERTAIN INSTRUCTIONS IT
MARKED OUT THE LIMITS OF THE TEST THE JURY WAS TO EMPLOY IN DETERMINING
THE EXISTENCE OR NON-EXISTENCE OF TOTAL DISABILITY WITHIN THE MEANING
OF THE POLICIES. 

IT IS APPARENT, THEN, THAT THE QUESTION OF TOTAL DISABILITY, ON THE
EVIDENCE BEFORE THE COURT IN THOSE TWO CASES, IS A QUESTION FOR THE
JURY UNDER INSTRUCTIONS EMBODYING THE TEST THE KANSAS CITY COURT OF
APPEALS APPROVED.  UNDER THE RULE OF THE WEST, SIX COMPANIES, AND FIELD
CASES, SUPRA, IT WAS ERROR FOR THE CIRCUIT COURT OF APPEALS TO HOLD, IN
EFFECT, THAT THE EVIDENCE WOULD NOT SUPPORT THE FINDING OF THE TRIAL
JUDGE THAT THERE WAS TOTAL DISABILITY, UNLESS CONVINCING EVIDENCE
INDICATED THAT THE MISSOURI SUPREME COURT WOULD DECIDE DIFFERENTLY. 

THE PRESENT CASE IS NOT DIFFERENT MERELY BECAUSE THERE ARE NOW IN THE
RECORD A STATEMENT AGAINST INTEREST, A DEPOSITION OF PETITIONER, AND
THE TESTIMONY OF A DOCTOR WHICH WERE NOT IN THE RECORD IN THE EARLIER
CASES.  THE THREE ITEMS OF EVIDENCE WERE INTRODUCED BY PETITIONER AND,
IF ANYTHING, WEAKEN RESPONDENT'S CASE.  MOREOVER, APART FROM THESE
THREE ITEMS, THE EVIDENCE IN THE PRESENT CASE CONSISTS OF THE
TRANSCRIPT THE KANSAS CITY COURT OF APPEALS HAD BEFORE IT WHEN IT WROTE
THE OPINION IN THE SECOND APPEAL (232 MO. APP. 1048; 114 S.W.2D 167). 

NOR IS THERE ANY INDICATION THAT EITHER THE KANSAS CITY COURT OF
APPEALS OR THE MISSOURI SUPREME COURT WOULD DECIDE THIS CASE
DIFFERENTLY.  CERTAINLY THERE IS NOTHING TO SUGGEST THAT THE KANSAS
CITY COURT OF APPEALS NOW WOULD CONCLUDE THAT THE EVIDENCE IS
INSUFFICIENT AFTER IT HAS HELD THAT THE SAME EVIDENCE PRESENTED A
QUESTION FOR THE JURY.  AND WHILE THE CONCEPT OF TOTAL DISABILITY IS
INSEPARABLE FROM THE FACTS TO WHICH IT IS APPLIED, HEALD V. AETNA LIFE
INSURANCE CO., 340 MO. 1143, 104 S.W.2D 379, INDICATES THAT THE
MISSOURI SUPREME COURT LIKEWISE WOULD CONCLUDE THAT A FINDING OF TOTAL
DISABILITY HERE IS SUPPORTED BY THE EVIDENCE.  SEE ALSO FOGLESONG V.
MODERN BROTHERHOOD, 121 MO. APP. 548; 97 S.W. 240; JAMES V. U.S.
CASUALTY CO., 113 MO. APP. 622; 88 S.W. 125; BELLOWS V. TRAVELERS'
INSURANCE CO., 203 S.W. 978, WHICH WERE APPROVED IN THE HEALD CASE. 

FURTHERMORE, THE TEST FOR DETERMINING TOTAL DISABILITY APPROVED IN
THE HEALD CASE WAS EMPLOYED IN THE FIRST AND FOLLOWED IN THE SECOND OF
THE APPEALS TO WHICH WE HAVE REFERRED.  90 S.W.2D 784, 793, 795; 232
MO. APP. 1048; 114 S.W.2D 167, 171, 172.  IT HAS BEEN EMPLOYED
CONSISTENTLY SINCE THE HEALD CASE WAS DECIDED.  EDEN V. METROPOLITAN
LIFE INS. CO., 138 S.W.2D 745; COMFORT V. TRAVELERS' INSURANCE CO., 131
S.W.2D 734; ROGERS V. METROPOLITAN LIFE INS. CO., 122 S.W.2D 5; WRIGHT
V. METROPOLITAN LIFE INS. CO., 115 S.W.2D 102.  THE SAME TEST WAS USED
BY THE DISTRICT JUDGE IN THE PRESENT SUIT.  HE APPLIED IT TO THE
EVIDENCE WHICH THE KANSAS CITY COURT OF APPEALS TWICE HAS SAID
PRESENTED A QUESTION FOR THE JURY; AND, SINCE THE CASE WAS TRIED TO THE
COURT, HE DETERMINED THAT THE EVIDENCE ESTABLISHED TOTAL DISABILITY. 
WE THINK IT IS IMMATERIAL THAT IN THE EARLIER SUITS THE BURDEN WAS ON
PETITIONER TO PROVE TOTAL DISABILITY WHILE HERE THE COURTS BELOW
ASSUMED THE BURDEN IS ON RESPONDENT TO SHOW THAT TOTAL DISABILITY NO
LONGER EXISTS. 

WE CONCLUDE THAT IT WAS ERROR TO DIRECT THE ENTRY OF A DECLARATORY
JUDGMENT FOR RESPONDENT.  IT WAS PROPER, HOWEVER, TO DENY PETITIONER'S
MOTION TO DISMISS FOR WANT OF THE NECESSARY AMOUNT IN CONTROVERSY SINCE
A JUDGMENT IN FAVOR OF RESPONDENT WOULD DETERMINE PETITIONER'S CLAIM TO
BOTH BENEFIT PAYMENTS AND WAIVER OF PREMIUMS.  THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF THE DISTRICT COURT IS
AFFIRMED.  REVERSED. 
..END :













SINGER & SONS V. UNION PACIFIC R. CO., 311 U.S. 295 


NO. 34.  ARGUED NOVEMBER 14, 15, 1940.  - DECIDED DECEMBER 16, 1940.  -
109 F.2D 493, AFFIRMED. 


1.  IN ORDER THAT ONE MAY SUE AS A "PARTY IN INTEREST" UNDER PARAGRAPH
20, SEC. 402 OF THE TRANSPORTATION ACT OF 1920, TO ENJOIN THE
CONSTRUCTION OF A RAILROAD EXTENSION NOT AUTHORIZED BY THE INTERSTATE
COMMERCE COMMISSION, HE MUST SHOW THAT THE EXTENSION WILL BRING ABOUT A
CHANGE IN THE TRANSPORTATION SYSTEM BY WHICH HIS OWN SPECIAL AND
PECULIAR INTEREST MAY BE DIRECTLY AND MATERIALLY AFFECTED.  P. 303. 

2.  NUMEROUS COMMISSION MERCHANTS WHO DID BUSINESS AND OWNED PROPERTY
IN AND ABOUT AN ESTABLISHED CITY PRODUCE MARKET ALLEGED IN THEIR BILL
AGAINST A RAILROAD COMPANY THAT THE MARKET ADEQUATELY SERVED THE
CONSUMING PUBLIC IN ITS VICINITY AND DEALT IN PRODUCE SHIPPED TO AND
FROM OTHER STATES; THAT THE CITY WAS ENGAGED IN CONSTRUCTING NEW
BUILDINGS FOR IT AT LARGE COST AND THAT THE MARKET HAD ADEQUATE
TRANSPORTATION FACILITIES; THAT AN ADJOINING CITY WAS CONSTRUCTING A
NEW MARKET, AT GREAT EXPENSE, PARTLY WITH FUNDS TO BE PROCURED BY SALE
OF ITS BONDS TO THE RAILROAD COMPANY; THAT THE COMPANY PROPOSED AT
LARGE EXPENSE TO FURNISH TRACKAGE TO SERVE THIS NEW MARKET, WHICH WOULD
CONSTITUTE AN EXTENSION OF ITS LINES FOR WHICH IT HAD PROCURED NO
CERTIFICATE FROM THE INTERSTATE COMMERCE COMMISSION; THAT THE
CONSTRUCTION AND OPERATION OF SUCH EXTENSION WOULD INJURE AND DESTROY
THE BUSINESS AND PROPERTY OF THE PLAINTIFFS IN AND ABOUT THE EXISTING
MARKET, BY CREATING AN UNNECESSARY RIVAL MARKET AT AN INCONVENIENT
PLACE WITHOUT INCREASE OF PRODUCE TO BE HANDLED OR CUSTOMERS TO BE
SERVED; THAT IT WOULD RESULT IN UNNECESSARY DUPLICATION OF RAILROAD
FACILITIES, AT LARGE COST, WITHOUT INCREASING THE FREIGHT TO BE
HANDLED; WOULD DIVERT TRAFFIC FROM RAILROADS NOW SERVING THE EXISTING
MARKET AND CAUSE DESTRUCTIVE COMPETITION BETWEEN THEM AND THE
DEFENDANT, AND NEEDLESS AND WASTEFUL EXPENDITURE BY THE DEFENDANT; THAT
THE ALLEGED EXTENSION WOULD THUS DIRECTLY AND ADVERSELY AFFECT THE
PROPERTY INTERESTS OF THE PLAINTIFFS AND THE PUBLIC BY BRINGING ABOUT A
MATERIAL CHANGE IN THE TRANSPORTATION SITUATION AND WOULD CONSTITUTE AN
UNNECESSARY BURDEN UPON INTERSTATE COMMERCE, DIRECTLY AND ADVERSELY
AFFECTING THE WELFARE OF THE PLAINTIFFS AND THE PUBLIC INTEREST, HELD: 

(1)  THAT THE PLAINTIFFS WERE WITHOUT STANDING TO MAINTAIN THE SUIT
AS "PARTIES IN INTEREST" UNDER PARAGRAPH 20, SEC. 402, TRANSPORTATION
ACT OF 1920.  P. 300, ET SEQ. 

(2)  THAT THE CITY IN WHICH THE EXISTING MARKET IS LOCATED WAS
PROPERLY DENIED LEAVE TO INTERVENE AS A PARTY PLAINTIFF.  P. 305. 

L. SINGER & SONS ET AL. V. UNION PACIFIC RAILROAD CO.* 

*TOGETHER WITH NO. 35, KANSAS CITY, MISSOURI, V. L. SINGER & SONS ET
AL., ALSO ON WRIT OF CERTIORARI, 309 U.S. 653, TO THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 309 U.S. 653, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING A BILL PRAYING FOR AN INJUNCTION AGAINST THE CONSTRUCTION
AND OPERATION OF AN ALLEGED EXTENSION OF THE LINES OF THE DEFENDANT
RAILROAD COMPANY.  THE DECREE ALSO DENIED AN APPLICATION OF THE CITY OF
KANSAS CITY, MISSOURI, TO INTERVENE AS A PLAINTIFF. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

UNDERTAKING TO PROCEED UNDER PARAGRAPHS 18, 20 AND 21, SEC. 402,
TRANSPORTATION ACT, 1920  FN1 (41 STAT. 456, 477, U.S.C. TITLE 49, SEC.
1) PETITIONERS, BY BILL FILED DECEMBER 30, 1938, IN THE UNITED STATES
DISTRICT COURT, WESTERN DISTRICT OF MISSOURI, ASKED A DECREE ENJOINING
RESPONDENT FROM CONSTRUCTING OR OPERATING AN ALLEGED EXTENSION.  26
F.SUPP.  721. 

THE BILL DESCRIBES THEM THUS: - 

"PLAINTIFFS ARE ENGAGED IN THE BUSINESS OF BUYING AND SELLING AT
WHOLESALE AND RETAIL, FRUITS, VEGETABLES AND OTHER FOOD PRODUCTS WITHIN
AND ADJACENT TO THE SO-CALLED CITY MARKET OF KANSAS CITY, MISSOURI,
LOCATED AT AND NEAR THE INTERSECTION OF FOURTH AND WALNUT STREETS IN
SAID CITY, OR ARE DIRECTLY INTERESTED IN OR CONNECTED WITH SAID
BUSINESS.  SAID MARKET HAS BEEN IN EXISTENCE AT SAID LOCATION FOR MORE
THAN SEVENTY-FIVE YEARS SERVING GREATER KANSAS CITY AND VICINITY AS A
WHOLESALE AND RETAIL PRODUCE MARKET, AND ALSO SERVING NUMEROUS
TERRITORIES IN OTHER STATES TO AND FROM WHICH PERISHABLE AND OTHER
PRODUCE BOUGHT AND SOLD IN SAID MARKET IS TRANSPORTED.  THE CITY OF
KANSAS CITY, MISSOURI, IS NOW ENGAGED IN THE CONSTRUCTION OF NEW
WHOLESALE AND RETAIL MARKET BUILDINGS AND FACILITIES IN SAID VICINITY
AT A COST OF APPROXIMATELY $500,000.00.  SAID MARKET IS NOW AND FOR A
LONG PERIOD OF TIME HAS BEEN SERVED BY EXISTING TRANSPORTATION
FACILITIES OF VARIOUS TRUNK LINE RAILROADS, AND SAID EXISTING
TRANSPORTATION FACILITIES ARE SUITABLE, CONVENIENT AND ADEQUATE TO MEET
THE REQUIREMENTS OF THE MARKET.  THE MARKET IS EASILY ACCESSIBLE TO ITS
CUSTOMERS THROUGH THE FACILITIES OF SAID RAILROADS AND ALSO BY THE USE
OF STREETS AND HARD-SURFACED HIGHWAYS RADIATING IN EVERY DIRECTION
THEREFROM." 

ANSWERING, THE RESPONDENT ALLEGED THAT PETITIONERS WERE NOT PARTIES
"IN INTEREST" WITHIN PARAGRAPH 20, SEC. 402, TRANSPORTATION ACT AND HAD
NO RIGHT TO SUE.  THE DISTRICT COURT SUSTAINED THIS DEFENSE AND
DISMISSED THE BILL.  26 F.SUPP.  721.  UPON APPEAL ITS ACTION WAS
AFFIRMED.  109 F.2D 493.  THE MATTER IS HERE BY CERTIORARI. 

THE CIRCUIT COURT OF APPEALS MADE THE FOLLOWING SUMMATION OF THE BILL
- 

"THE COMPLAINT OF THE PLAINTIFFS SHOWS THAT THEY ARE COMMISSION
MERCHANTS DOING BUSINESS ON THE KANSAS CITY, MISSOURI, PRODUCE MARKET,
AN OLD AND WELL-ESTABLISHED MARKET WHICH ADEQUATELY SERVES THE
CONSUMING PUBLIC IN ITS VICINITY AND RECEIVES PRODUCE FROM, AND SHIPS
PRODUCE TO, OTHER STATES; THAT KANSAS CITY, MISSOURI, IS NOW ENGAGED IN
CONSTRUCTING NEW MARKET BUILDINGS FOR THIS MARKET AT A COST OF ABOUT
$500,000; THAT THE MARKET HAS SUITABLE AND ADEQUATE TRANSPORTATION
FACILITIES OF ALL KINDS; THAT THE ADJOINING CITY OF KANSAS CITY,
KANSAS, PROPOSES TO BUILD AND IS BUILDING A 'FOOD TERMINAL' OR PRODUCE
MARKET ON A TRACT OF LAND WHICH IT OWNS, AT A COST OF ABOUT $4,000,000,
OF WHICH $1,710,000 IS A GRANT FROM THE PUBLIC WORKS ADMINISTRATION OF
THE UNITED STATES, AND THAT THE BALANCE OF THE NECESSARY FUNDS WILL BE
PROCURED BY A SALE OF THE CITY'S BONDS TO THE DEFENDANT RAILROAD
COMPANY; THAT THE DEFENDANT PROPOSES, AT AN EXPENSE OF SOME $500,000,
TO FURNISH TRACKAGE TO SERVE THIS KANSAS CITY, KANSAS, MARKET; THAT
THIS TRACKAGE CONSTITUTES AN EXTENSION OF THE DEFENDANT'S LINES OF
RAILROAD, FOR THE CONSTRUCTION OF WHICH IT HAS PROCURED NO CERTIFICATE
OF CONVENIENCE AND NECESSITY FROM THE INTERSTATE COMMERCE COMMISSION AS
REQUIRED BY LAW; THAT THE CONSTRUCTION AND OPERATION OF THE PROPOSED
EXTENSION IN KANSAS CITY, KANSAS, WILL ADVERSELY AFFECT AND WILL
DESTROY THE BUSINESS AND PROPERTIES OF THE PLAINTIFFS AND THE LARGE
INVESTMENTS WHICH THEY HAVE MADE IN AND ADJACENT TO THE KANSAS CITY,
MISSOURI, PRODUCE MARKET; THAT IT WILL CREATE AN UNNECESSARY AND
UNCALLED FOR RIVAL MARKET AT AN INCONVENIENT PLACE WITHOUT CREATING ANY
MORE PRODUCE TO BE HANDLED OR ANY MORE CUSTOMERS TO BE SERVED; THAT IT
WILL RESULT IN THE UNNECESSARY DUPLICATION OF RAILROAD FACILITIES AT A
COST OF $500,000 WITHOUT INCREASING THE AMOUNT OF FREIGHT TO BE
HANDLED; THAT IT WILL DIVERT TRAFFIC FROM OTHER RAILROADS WHICH ARE NOW
ADEQUATELY HANDLING THE TRAFFIC TO THE KANSAS CITY, MISSOURI, PRODUCE
MARKET, AND WILL CAUSE DESTRUCTIVE COMPETITION BETWEEN THE DEFENDANT
AND OTHER RAILROADS AND WILL CAUSE A WASTEFUL AND NEEDLESS EXPENDITURE
OF MONEY BY THE DEFENDANT; THAT 'FOR EACH AND ALL OF THE REASONS
AFORESAID, THE CONSTRUCTION AND OPERATION, OR THE CONSTRUCTION, OR THE
OPERATION OF THE SAID EXTENSION OR EXTENSIONS OF RAILROAD BY THE
DEFENDANT TO SAID PROPOSED PRODUCE MARKET IN KANSAS CITY, KANSAS, WILL
DIRECTLY AND ADVERSELY AFFECT THE PROPERTY INTERESTS OF THE PLAINTIFFS
AND THE PUBLIC GENERALLY BY BRINGING ABOUT A MATERIAL CHANGE IN THE
TRANSPORTATION SITUATION, AND WILL CONSTITUTE AN UNNECESSARY BURDEN
UPON INTERSTATE COMMERCE DIRECTLY AND ADVERSELY AFFECTING THE WELFARE
OF PLAINTIFFS AND THE PUBLIC INTEREST.'"  109 F.2D 493. 

IT IS NOT ALLEGED THAT THE RESPONDENT HAS EVER SERVED THE PRODUCE
MARKET IN KANSAS CITY, MISSOURI, OR THAT PETITIONERS MAKE OR RECEIVE
SHIPMENTS OVER ITS LINES OR THAT THE PROPOSED EXTENSION WILL DEPRIVE
THEM OF ANY SHIPPING FACILITIES.  EVIDENTLY THE REAL PURPOSE WAS TO
OBSTRUCT CONSTRUCTION OF A COMPETITOR AND THE THEORY UPON WHICH THE
PROCEEDING RESTS WOULD PERMIT PETITIONERS TO SUE IF ANY RAILROAD SHOULD
EXTEND ITS LINES TO ANY MARKET COMPETING WITH THE MARKET AT KANSAS
CITY, MISSOURI. 

CONCERNING THE PURPORT OF THE ALLEGATIONS OF THE BILL, THE CIRCUIT
COURT OF APPEALS RIGHTLY SAID: 

"IT IS OBVIOUS THAT THE ONLY BASIS FOR THE PLAINTIFFS' CLAIM THAT THE
ALLEGED EXTENSION OF THE LINES OF THE DEFENDANT TO THE KANSAS CITY,
KANSAS, MARKET WILL PARTICULARLY INJURE THEM IS THAT THEY DO BUSINESS
UPON THE KANSAS CITY, MISSOURI, MARKET, AND THAT IF THE PROPOSED RIVAL
MARKET IN KANSAS CITY, KANSAS, FUNCTIONS, IT WILL DIVERT BUSINESS FROM
THE MARKET UPON WHICH THEY OPERATE AND WILL THUS HURT THEM, THEIR
BUSINESS, AND THEIR INVESTMENTS IN KANSAS CITY, MISSOURI, AND THAT,
SINCE THE PROPOSED EXTENSION OF ITS TRACKS BY THE DEFENDANT IS
NECESSARY TO ENABLE THE RIVAL MARKET TO FUNCTION, SUCH EXTENSION WILL
THEREFORE INJURE THE PLAINTIFFS.  IT SEEMS EQUALLY OBVIOUS THAT, EXCEPT
FOR THE FACT THAT THE PROPOSED EXTENSION IS ESSENTIAL TO THE OPERATION
OF THE RIVAL MARKET IN KANSAS, IT COULD NOT POSSIBLY HAVE ANY DIRECT OR
IMMEDIATE EFFECT UPON THE PLAINTIFFS, THEIR PROPERTY OR THEIR BUSINESS
IN MISSOURI, OTHER THAN THE EFFECT WHICH A WASTEFUL EXPENDITURE BY THE
DEFENDANT OF ITS MONEY WOULD HAVE UPON THE PUBLIC GENERALLY.  THE
PROXIMATE CAUSE OF THE INJURY TO THE PLAINTIFFS WILL BE THE COMPETITION
CREATED BY THE CONSTRUCTION AND OPERATION OF THE RIVAL MARKET, AND NOT
THE CONSTRUCTION OR OPERATION OF THE TRANSPORTATION FACILITIES
FURNISHED TO IT BY THE DEFENDANT OR BY OTHERS ENGAGED IN THE
TRANSPORTATION BUSINESS." 

IT DECLARED THAT THE QUESTION WHETHER PETITIONERS WERE "PARTIES IN
INTEREST" WITHIN PARAGRAPH 20 MUST BE DETERMINED UPON CONSIDERATION OF
WESTERN PACIFIC R. CO. V. SOUTHERN PACIFIC CO., 284 U.S. 47, AND
CONCLUDED - 

"THE PLAINTIFFS HAVE NO DEFINITE LEGAL RIGHT WHICH IS THREATENED. 
THEY ARE, HOWEVER, PERSONS WHOSE WELFARE MAY BE ADVERSELY AFFECTED BY
THE BRINGING ABOUT OF A MATERIAL CHANGE IN THE TRANSPORTATION
SITUATION, IN THE SENSE THAT THE EXTENSION PROPOSED BY THE DEFENDANT,
IF BUILT AND OPERATED, WILL ENABLE A COMPETITIVE MARKET TO FUNCTION TO
THEIR DETRIMENT.  IN THAT SENSE, WE THINK IT MAY SAFELY BE SAID THAT
THE PROPOSED EXTENSION OF DEFENDANT'S LINES MAY ADVERSELY AFFECT THE
PLAINTIFFS' WELFARE.  WE ARE OF THE OPINION, HOWEVER, THAT THEIR
COMPLAINT DISCLOSES THAT THEIR WELFARE CANNOT BE DIRECTLY, BUT ONLY
INDIRECTLY AND CONSEQUENTIALLY, AFFECTED BY THE PROPOSED EXTENSION. 
THEY ARE NOT IN COMPETITION WITH THE DEFENDANT.  THEY ARE NOT ENGAGED
IN THE TRANSPORTATION BUSINESS.  THEIR ONLY PECULIAR INTEREST IN THAT
BUSINESS IS IN THE EFFECT WHICH CHANGES IN IT MAY HAVE UPON THE MARKET
WHERE THEY DO BUSINESS AND UPON RIVAL MARKETS NOW OR HEREAFTER
ESTABLISHED IN THE TERRITORY WHICH THE PLAINTIFFS SERVE.  ...  WE
CONCLUDE THAT THE STATUTE IS NOT TO BE SO LIBERALLY CONSTRUED AS TO
ENABLE THOSE WHO FEAR ADVERSE EFFECTS UPON THEIR BUSINESS FROM THE
ESTABLISHMENT OF COMPETITIVE ENTERPRISES REQUIRING TRANSPORTATION
FACILITIES, TO MAINTAIN SUITS TO ENJOIN RAILROADS FROM CONSTRUCTING
WHAT ARE CLAIMED TO BE UNAUTHORIZED EXTENSIONS TO SERVE SUCH
ENTERPRISES." 

A DISSENTING OPINION BY JUDGE STONE LIKEWISE RELIED UPON WESTERN
PACIFIC R. CO. V. SOUTHERN PACIFIC CO., BUT TOOK THE VIEW THAT THE
CHALLENGED ACTION MIGHT DIRECTLY AND SUBSTANTIALLY AFFECT PETITIONERS'
WELFARE SINCE THEIR FINANCIAL INTERESTS WOULD SUFFER FROM THE PROPOSED
RIVAL MARKET WHICH COULD NOT COME INTO EXISTENCE WITHOUT THE PROPOSED
EXTENSION. 

THE PURPOSE AND EFFECT OF PARAGRAPHS 18, 20 AND 21 WERE MUCH
CONSIDERED IN TEXAS & PACIFIC RY. CO. V. GULF, C. & S.F. RY. CO., 270
U.S. 266 AND WESTERN PACIFIC R. CO. V. SOUTHERN PACIFIC CO., 284 U.S.
47. 

IN THE FIRST OF THESE CAUSES A RAILROAD SOUGHT TO PREVENT ANOTHER
FROM BUILDING AN EXTENSION.  THE MEANING OF THE TERM "PARTY IN
INTEREST" WAS NOT DISCUSSED.  BUT THE OPINION ASSERTS THAT BY THE
TRANSPORTATION ACT OF 1920, "CONGRESS UNDERTOOK TO DEVELOP AND
MAINTAIN, FOR THE PEOPLE OF THE UNITED STATES, AN ADEQUATE RAILWAY
SYSTEM.  IT RECOGNIZED THAT PRESERVATION OF THE EARNING CAPACITY, AND
CONSERVATION OF THE FINANCIAL RESOURCES, OF INDIVIDUAL CARRIERS IS A
MATTER OF NATIONAL CONCERN; THAT THE PROPERTY EMPLOYED MUST BE
PERMITTED TO EARN A REASONABLE RETURN; THAT THE BUILDING OF UNNECESSARY
LINES INVOLVES A WASTE OF RESOURCES AND THAT THE BURDEN OF THIS WASTE
MAY FALL UPON THE PUBLIC; THAT COMPETITION BETWEEN CARRIERS MAY RESULT
IN HARM TO THE PUBLIC AS WELL AS IN BENEFIT; AND THAT WHEN A RAILROAD
INFLICTS INJURY UPON ITS RIVAL, IT MAY BE THE PUBLIC WHICH ULTIMATELY
BEARS THE LOSS." 

ALSO "THE PROHIBITION OF PARAGRAPH 18 IS ABSOLUTE.  IF THE PROPOSED
TRACK IS AN EXTENSION AND NO CERTIFICATE HAS BEEN OBTAINED, THE PARTY
IN INTEREST OPPOSING CONSTRUCTION IS ENTITLED AS OF RIGHT TO AN
INJUNCTION." 

IN THE SECOND CAUSE IT WAS CLAIMED THAT THE WESTERN PACIFIC WAS NOT
"A PARTY IN INTEREST" WITHIN THE STATUTE.  THE CIRCUIT COURT OF APPEALS
ACCEPTED THAT VIEW, 46 F.2D 729; WE CONCLUDED OTHERWISE BUT DID NOT
UNDERTAKE TO ANNOUNCE AN INCLUSIVE AND EXCLUSIVE DEFINITION OF THE
TERM.  THE CIRCUMSTANCES DISCLOSED A SPECIAL INTEREST IN THAT
COMPLAINANT WITH PROBABILITY OF DIRECT LOSS FROM WHAT THE DEFENDANT -
NOT ANOTHER - PROPOSED TO DO.  THE PORTION OF THE OPINION, PRESENTLY
SPECIALLY IMPORTANT, FOLLOWS - 

"IF, AS THE COURT BELOW SEEMS TO HAVE ASSUMED, A 'PARTY IN INTEREST'
MUST POSSESS SOME CLEAR LEGAL RIGHT FOR WHICH IT MIGHT ASK PROTECTION
UNDER THE RULES COMMONLY ACCEPTED BY COURTS OF EQUITY, THE PARAGRAPHS
UNDER CONSIDERATION WOULD NOT MATERIALLY AID THE CONGRESSIONAL PLAN FOR
PROMOTING TRANSPORTATION.  ON THE OTHER HAND, THERE WAS NO PURPOSE TO
PERMIT ANY INDIVIDUAL SO INCLINED TO INSTITUTE SUCH A PROCEEDING.  THE
COMPLAINANT MUST POSSESS SOMETHING MORE THAN A COMMON CONCERN FOR
OBEDIENCE TO LAW.  SEE MASSACHUSETTS V. MELLON, 262 U.S. 447, 488.  IT
WILL SUFFICE, WE THINK, IF THE BILL DISCLOSES THAT SOME DEFINITE LEGAL
RIGHT POSSESSED BY COMPLAINANT IS SERIOUSLY THREATENED OR THAT THE
UNAUTHORIZED AND THEREFORE UNLAWFUL ACTION OF THE DEFENDANT CARRIER MAY
DIRECTLY AND ADVERSELY AFFECT THE COMPLAINANT'S WELFARE BY BRINGING
ABOUT SOME MATERIAL CHANGE IN THE TRANSPORTATION SITUATION." 

THE TRANSPORTATION ACT, 1920, WAS DESIGNED TO PROTECT THE PUBLIC
AGAINST ACTION WHICH MIGHT ENDANGER ITS INTEREST.  IN ORDER TO AID THAT
GENERAL PURPOSE, PARAGRAPH 20, SEC. 402, PROVIDES THAT SUIT FOR AN
INJUNCTION MAY BE INSTITUTED BY THE UNITED STATES, THE COMMISSION
(I.C.C.), ANY COMMISSION OR REGULATIVE BODY OF THE STATE OR STATES
AFFECTED, OR ANY "PARTY IN INTEREST."  SUCH A SUIT CANNOT BE INSTITUTED
BY AN INDIVIDUAL UNLESS HE "POSSESSES SOMETHING MORE THAN A COMMON
CONCERN FOR OBEDIENCE TO LAW."  THE GENERAL OR COMMON INTEREST FINDS
PROTECTION IN THE PERMISSION TO SUE GRANTED TO PUBLIC AUTHORITIES.  AN
INDIVIDUAL MAY HAVE SOME SPECIAL AND PECULIAR INTEREST WHICH MAY BE
DIRECTLY AND MATERIALLY AFFECTED BY ALLEGED UNLAWFUL ACTION.  SEE
DETROIT & M. RY. CO. V. BOYNE CITY, G. & A.R. CO., 286 F. 540.  IF SUCH
CIRCUMSTANCES ARE SHOWN HE MAY SUE; HE IS THEN "PARTY IN INTEREST"
WITHIN THE MEANING OF THE STATUTE.  IN THE ABSENCE OF THESE
CIRCUMSTANCES HE IS NOT SUCH A PARTY.    WE CANNOT THINK CONGRESS
SUPPOSED THAT THE DEVELOPMENT AND MAINTENANCE OF AN ADEQUATE RAILWAY
SYSTEM WOULD BE AIDED BY PERMITTING ANY PERSON ENGAGED IN BUSINESS
WITHIN OR ADJACENT TO A PUBLIC MARKET TO DEMAND AN INJUNCTION AGAINST A
CARRIER SEEKING ONLY TO SERVE A COMPETING MARKET BY MEANS OF AN
EXTENSION NOT AUTHORIZED BY THE INTERSTATE COMMERCE COMMISSION. 

THE RIGHT TO SUE UNDER THE STATUTE IS INDIVIDUAL.  PETITIONERS ARE
NOT HELPED BY UNITING. 

THE CIRCUIT COURT OF APPEALS AFTER REVIEWING ALL THE FACTS REACHED
THE CONCLUSION THAT THE WELFARE OF PETITIONERS COULD ONLY BE INDIRECTLY
AND CONSEQUENTIALLY AFFECTED BY THE PROPOSED EXTENSION; THAT THEIR
INTEREST IN THE TRANSPORTATION SITUATION "IS IN THE EFFECT WHICH
CHANGES IN IT MAY HAVE UPON THE MARKET WHERE THEY DO BUSINESS AND UPON
RIVAL MARKETS NOW OR HEREAFTER ESTABLISHED IN THE TERRITORY WHICH THE
PLAINTIFFS SERVE."  IT HELD THIS WAS NOT ENOUGH.  WE AGREE.  A MERE
EXTENSION TO THE PLANT OF A COMPETITOR WHICH IN NO OTHER WAY AFFECTS
THE COMPLAINING PARTIES IN NO PROPER SENSE BRINGS ABOUT A MATERIAL
CHANGE IN THE TRANSPORTATION SYSTEM DIRECTLY AFFECTING THEIR PECULIAR
INTEREST WHICH THEY HAVE THE RIGHT TO PREVENT BY SUIT. 

THE CHALLENGED JUDGMENT MUST BE AFFIRMED. 

                      NO. 35. 

THE CITY OF KANSAS CITY, MISSOURI, SOUGHT TO INTERVENE IN NO. 34. 
THE DISTRICT COURT DENIED ITS MOTION.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  IN VIEW OF WHAT WE HAVE DECIDED IN NO. 34 THIS DENIAL
NECESSARILY MUST BE AFFIRMED.  AFFIRMED. 

FN1  TRANSPORTATION ACT, 1920, SEC. 402: 

"PARAGRAPH '(18)  ...  NO CARRIER BY RAILROAD SUBJECT TO THIS ACT
SHALL UNDERTAKE THE EXTENSION OF ITS LINE OF RAILROAD  ...  UNLESS AND
UNTIL THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE COMMISSION A
CERTIFICATE THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY
REQUIRE OR WILL REQUIRE THE CONSTRUCTION  ...  OF SUCH  ...  EXTENDED
LINE  ...  '  PARAGRAPH '(19) THE APPLICATION FOR AND ISSUANCE OF ANY
SUCH CERTIFICATE SHALL BE UNDER SUCH RULES AND REGULATIONS AS TO
HEARINGS AND OTHER MATTERS AS THE COMMISSION MAY FROM TIME TO TIME
PRESCRIBE,  ...  ' PARAGRAPH '(20)  ...  ANY CONSTRUCTION  ...
CONTRARY TO THE PROVISIONS  ...  OF PARAGRAPH (18) ...  MAY BE ENJOINED
BY ANY COURT OF COMPETENT JURISDICTION AT THE SUIT OF THE UNITED
STATES, THE COMMISSION, ANY COMMISSION OR REGULATING BODY OF THE STATE
OR STATES AFFECTED, OR ANY PARTY IN INTEREST.  ... '" 

MR. JUSTICE FRANKFURTER: 

I QUITE AGREE WITH MY BROTHER STONE THAT UNFAIR LOSS MAY BE CAST UPON
A COMMUNITY BY THE UNJUSTIFIED EXTENSION OF A RAILROAD LINE, AND THAT
SUCH LOSS IS ONE CONSEQUENCE OF THE EVILS OF UNREGULATED RAILROAD
BUILDING WHICH THE TRANSPORTATION ACT WAS INTENDED TO CHECK.  BUT OUR
IMMEDIATE PROBLEM IS TO DETERMINE HOW A COMMUNITY CAN CHALLENGE SUCH A
PROPOSED IMPROPER EXTENSION.  CAN A CITY, IN OTHER WORDS, COME INTO A
FEDERAL COURT AND URGE ITS SPECIAL RELATION TO AN ALLEGED VIOLATION OF
SEC. 1(18-22), OF THE TRANSPORTATION ACT, 1920, 41 STAT. 456, 477, 49
U.S.C. SEC. 1(18-22)?  THE ANSWER, OF COURSE, DEPENDS ON THE SCHEME OF
ENFORCEMENT THAT CONGRESS HAS DEVISED FOR THE ACT.  AFTER MAKING
ADMINISTRATIVE PROVISIONS FOR SECURING A CERTIFICATE FROM THE
INTERSTATE COMMERCE COMMISSION AS A PREREQUISITE TO THE CONSTRUCTION OF
AN "EXTENSION," THE ACT SUBJECTS ANY CONSTRUCTION IN VIOLATION OF ITS
LICENSING SYSTEM TO AN INJUNCTION "AT THE SUIT OF THE UNITED STATES,
THE COMMISSION, ANY COMMISSION OR REGULATING BODY OF THE STATE OR
STATES AFFECTED, OR ANY PARTY IN INTEREST."  SEC. 1(20). 

A CITY DEEMING ITSELF ADVERSELY AFFECTED BY A PROPOSED ILLEGAL
EXTENSION WOULD NATURALLY TURN TO ITS STATE COMMISSION TO ASSERT ITS
INTERESTS.  IF, FOR ANY REASON, THE STATE AGENCY DOES NOT EMPLOY ITS
POWER UNDER SEC. 1(20) ON BEHALF OF THE CITY'S CLAIMS, THE LATTER CAN
INVOKE THE LAW-ENFORCING AUTHORITY OF THE INTERSTATE COMMERCE
COMMISSION AND ALSO ENLIST THE POWER OF THE ATTORNEY GENERAL TO
INITIATE LITIGATION.  IT IS READING SEC. 1(20) WITHOUT ILLUMINATION OF
THE SCHEME AND PURPOSES OF THE TRANSPORTATION ACT TO EXPAND THE
CATEGORIES OF PUBLIC AGENCIES EXPLICITLY NAMED BY CONGRESS FOR
ENFORCING SEC. 1(18) BY INCLUDING A CITY AS A "PARTY IN INTEREST."  TO
DO SO WOULD DISREGARD RECOGNITION OF A STATE UTILITY COMMISSION AS THE
SPECIAL REPOSITORY OF ALL THE INTERESTS OF A STATE IN THIS PARTICULAR
FIELD, AND OF THE INTERSTATE COMMERCE COMMISSION AS THE NATIONAL ORGAN
FOR ENFORCING THE BODY OF INTERSTATE COMMERCE ACTS.  CLEARLY,
THEREFORE, KANSAS CITY CAN NOT BE DEEMED A "PARTY IN INTEREST" FOR THE
LITIGIOUS PURPOSES OF THAT PHRASE IN SEC. 1(20). 

BUT IT WOULD INDEED BE STRANGE TO FIND THAT WHILE THE CITY WAS NOT
GIVEN POWER TO RESORT TO A COURT, A PRIVATE AND MORE LIMITED SUFFERER
FROM THE SAME ECONOMIC THREAT MAY HAVE SUCH LEGAL STANDING.  SUCH A
PARADOX EXPOSES THE APPROPRIATE SCOPE OF "PARTY IN INTEREST" IN SEC.
1(20).  THE GUIDING CONSIDERATIONS IN THE APPLICATION OF THAT SECTION
ARE TO BE FOUND IN THE REACH OF THE FUNCTIONS OF THE INTERSTATE
COMMERCE COMMISSION AND OF ITS STATE ANALOGUES.  THEY ARE RELIED ON FOR
THE ENFORCEMENT OF RAILROAD LEGISLATION NEITHER GRUDGINGLY NOR WITH
SCEPTICISM.  IN THESE AGENCIES ARE LODGED THE RESOURCES FOR COMPOUNDING
THE MANIFOLD INGREDIENTS OF "THE PUBLIC INTEREST."  TO ENTRUST THE
VINDICATION OF THIS PUBLIC INTEREST TO A PRIVATE LITIGANT PROFESSING A
SPECIAL STAKE IN THE PUBLIC INTEREST IS TO IMPINGE ON THE
RESPONSIBILITY OF THE PUBLIC AUTHORITIES DESIGNATED BY CONGRESS.  IF
THERE BE INSUFFICIENT ASSURANCE THAT UNLAWFUL RAILROAD CONSTRUCTION
WILL BE RESISTED BY A STATE COMMISSION REPRESENTING ALL THE INTERESTS
OF A STATE THAT ARE AFFECTED, THE INTERSTATE COMMERCE COMMISSION MAY BE
MOVED TO ENJOIN ILLEGALITY. 

WHO THEN IS A "PARTY IN INTEREST"?  AS A PART OF THE VERY SYSTEM
THROUGH WHICH THE NATIONAL POLICY IS TO BE ACHIEVED, A RAILROAD HAS
BEEN DEEMED BY THIS COURT A "PARTY IN INTEREST" TO EFFECTUATE THE
RAILROAD POLICY INTRODUCED BY THE LICENSING SYSTEM OF THE
TRANSPORTATION ACT.  TEXAS & PACIFIC RY. CO. V. GULF, C. & S.F. RY.
CO., 270 U.S. 266, 277; WESTERN PACIFIC R. CO. V. SOUTHERN PACIFIC CO.,
284 U.S. 47.  AND ONE WHO IN A PROCEEDING INITIATED BEFORE THE
INTERSTATE COMMERCE COMMISSION HAS BEEN TREATED BY IT AS A PARTY TO THE
LITIGATION, CF. LOS ANGELES PASSENGER TERMINAL CASES, 100 I.C.C. 421;
142 I.C.C. 489; ATCHISON, T. & S.F. RY. CO. V. RAILROAD COMMISSION, 283
U.S. 380, 393-94, MAY PERHAPS BE DEEMED A "PARTY IN INTEREST" IN THE
FURTHER PURSUIT OF CLAIMS BEFORE A COURT AFTER ADVERSE ACTION BY THE
COMMISSION.  COMPARE INTERSTATE COMMERCE COMM'N V. OREGON-WASHINGTON R.
CO., 288 U.S. 14, AND FEDERAL COMMUNICATIONS COMMISSION V. SANDERS
BROS. RADIO STATION, 309 U.S. 470.  BUT TO ALLOW ANY PRIVATE INTEREST
TO THRESH OUT THE COMPLICATED QUESTIONS THAT ARISE OUT OF SEC. 1(18-22)
FN1  - AS, FOR INSTANCE, WHETHER A PROPOSED CONSTRUCTION IS AN
"EXTENSION" OR A "SPUR," COMPARE TEXAS & PACIFIC RY. CO. V. GULF, C. &
S.F. RY. CO., 270 U.S. 266 - IS TO INVITE DISLOCATION OF THE SCHEME
WHICH CONGRESS HAS DEVISED FOR THE EXPERT CONDUCT OF THE LITIGATION OF
SUCH ISSUES.  FN2  IT ALSO WOULD PUT UPON THE DISTRICT COURTS THE TASK
OF DRAWING FINE LINES IN DETERMINING WHEN A PRIVATE CLAIM IS SO SPECIAL
THAT IT MAY BE SET APART FROM THE GENERAL PUBLIC INTEREST AND GIVE THE
CLAIMANT POWER TO LITIGATE A PUBLIC CONTROVERSY.  THESE INQUIRIES ARE
SO HARASSING AND UNPROFITABLE AS TO BE AVOIDED, UNLESS CONGRESS HAS
EXPLICITLY CAST THE DUTY UPON THE COURTS.  AGAINST ANY SUCH
IMPLICATION, IN THE ABSENCE OF RATHER PLAIN LANGUAGE, THE WHOLE COURSE
OF FEDERAL RAILROAD LEGISLATION AND THE RELATION OF THE INTERSTATE
COMMERCE COMMISSION TO IT ADMONISHES.  THE INTERESTS OF MERELY PRIVATE
CONCERNS ARE AMPLY PROTECTED EVEN THOUGH THEY MUST BE CHANNELLED
THROUGH THE ATTORNEY GENERAL OR THE INTERSTATE COMMERCE COMMISSION OR A
STATE COMMISSION. 

THEREFORE, THE COURT BELOW MADE PROPER DISPOSITIONS OF THESE CASES. 

MR. JUSTICE ROBERTS, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR.
JUSTICE MURPHY, HAVING CONCURRED IN THE COURT'S OPINION, ALSO JOIN IN
THESE VIEWS. 

FN1  THE FACT THAT, IN ORDER TO RAISE THE BARE LEGAL QUESTION OF
PETITIONER'S RIGHT TO SUE, THE ILLEGALITY OF THE PROPOSED EXTENSION WAS
CONCEDED BY THE PLEADINGS, DOES NOT TOUCH THE FORCE OF THE ARGUMENT. 

FN2  WITH REFERENCE TO THE PRESENT CIRCUMSTANCES THEMSELVES, THE
ATTORNEY GENERAL, AT THE REQUEST OF THE INTERSTATE COMMERCE COMMISSION,
HAS CHOSEN A DIFFERENT REMEDY TO PROTECT THE PUBLIC INTEREST.  SEE
UNITED STATES V. UNION PACIFIC R. CO., 32 F.SUPP.  917. 

MR. JUSTICE STONE: 

I THINK THAT THE COMPLAINANTS, PETITIONERS IN NO. 34, ARE PROPER
PARTIES TO MAINTAIN THIS SUIT, THAT THE DECREE SHOULD BE REVERSED AND,
ON THE REMAND, THE PETITION OF KANSAS CITY FOR INTERVENTION SHOULD BE
CONSIDERED IN LIGHT OF THAT CONCLUSION AND OF SECS. 212 AND 213 OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 45A AND OF RULE 24 OF THE RULES OF CIVIL
PROCEDURE. 

ON THE PLEADINGS IT STANDS CONCEDED THAT THE PROPOSED EXTENSION OF
RESPONDENT'S LINE IS UNAUTHORIZED AND UNLAWFUL, AND THE SOLE QUESTION
WE HAVE TO DECIDE IS WHETHER THE INTEREST OF PETITIONERS IN MAINTAINING
THIS SUIT, AS DISCLOSED BY THEIR PLEADINGS, SATISFIES THE REQUIREMENT
OF THE STATUTE WHICH AUTHORIZES IT TO BE BROUGHT BY "ANY PARTY IN
INTEREST." 

49 U.S.C. SEC. 1(18), FORBIDS THE EXTENSION OF ITS LINE BY A RAILROAD
WITHOUT A CERTIFICATE OF THE INTERSTATE COMMERCE COMMISSION THAT "THE
PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY REQUIRE OR WILL
REQUIRE" THE CONSTRUCTION OF THE EXTENSION.  SIMILARLY IT PROHIBITS THE
ABANDONMENT OF ANY PORTION OF A LINE OF RAILROAD WITHOUT A LIKE
CERTIFICATE PERMITTING THE ABANDONMENT.  SECTION 1(19) REQUIRES THE
COMMISSION TO GIVE NOTICE OF APPLICATION FOR A CERTIFICATE TO THE
GOVERNOR OF THE STATE IN WHICH THE PROPOSED EXTENSION IS TO BE
CONSTRUCTED AND TO PUBLISH THE NOTICE IN EACH COUNTY THROUGH WHICH THE
LINE OF RAILROAD IS CONSTRUCTED OR OPERATED.  BY SEC. 1(20) THE
COMMISSION IS AUTHORIZED TO ATTACH TO ITS CERTIFICATE SUCH "CONDITIONS
AS IN ITS JUDGMENT THE PUBLIC CONVENIENCE AND NECESSITY MAY REQUIRE,"
AND AUTHORIZES ANY COURT OF COMPETENT JURISDICTION TO ENJOIN THE
PROHIBITED CONSTRUCTION OR ABANDONMENT "AT THE SUIT OF THE UNITED
STATES, THE COMMISSION, ANY COMMISSION OR REGULATING BODY OF THE STATE
OR STATES AFFECTED, OR ANY PARTY IN INTEREST; ...  " BY SEC. 1(22)
SPUR, INDUSTRIAL, SIDE TRACKS AND THE LIKE ARE EXCLUDED FROM THE
AUTHORITY OF THE COMMISSION AND THE RAILROAD MAY BUILD THEM WITHOUT
APPLYING FOR A CERTIFICATE. 

THE INTEREST OF PETITIONERS IN MAINTAINING THE SUIT AS SHOWN BY THE
PLEADINGS IS DERIVED FROM THE INJURY TO THE PUBLIC WHICH, IT IS
SPECIFICALLY ALLEGED, WILL RESULT FROM THE PROPOSED EXTENSION THROUGH
THE INJURY TO THE COMMUNITY IN KANSAS CITY, MISSOURI, AND VICINITY, OF
WHICH COMMUNITY PETITIONERS ARE A PART AND IN WHICH THEY ARE PROPERTY
OWNERS, AND THE CONSEQUENT INJURY ALLEGED TO AFFECT THEM INDIVIDUALLY. 
THE PUBLIC INJURY, IT IS ALLEGED, WILL BE CAUSED BY (A) THE LOSS OR
SERIOUS IMPAIRMENT IN UTILITY OF THE KANSAS CITY PUBLIC PRODUCE MARKET
AND THE DESTRUCTION OR SERIOUS DIMINUTION OF VALUES OF PROPERTY AND
BUSINESS AND OF FINANCIAL INVESTMENTS IN AND ABOUT THE MARKET, WHICH
WILL BE BROUGHT ABOUT BY THE EXTENSION, THROUGH THE CREATION OF A RIVAL
MARKET AND THE DIVERSION OF TRAFFIC TO IT AT A POINT IN KANSAS CITY,
KANSAS, FAR REMOVED FROM THE CENTER OF POPULATION OF KANSAS CITY,
MISSOURI, AND TO THE INCONVENIENCE OF THE GREAT MAJORITY OF THE
CITIZENS OF BOTH CITIES WHO ARE SERVED BY THE EXISTING MARKET, WHICH IS
ADEQUATE TO THE NEEDS OF THE COMMUNITY; (B) BY THE UNNECESSARY
DUPLICATION OF RAILROAD FACILITIES IN THE KANSAS CITY DISTRICT AT LARGE
COST, WITH WASTEFUL AND NEEDLESS EXPENDITURES BY RESPONDENT AND NO
INCREASE IN FREIGHT TO BE HANDLED; AND (C) BY THE DIVERSION OF TRAFFIC
TO RESPONDENT RAILROAD FROM OTHER RAILROADS AND DESTRUCTIVE COMPETITION
BETWEEN THE RAILROADS OPERATING IN THE VICINITY. 

SPECIAL INJURY IS SHOWN TO COMPLAINANTS (PETITIONERS IN NO. 34) BY
THE ALLEGATIONS THAT THEY ARE OWNERS OF BUSINESS PROPERTY AND
INVESTMENTS IN THE EXISTING MARKET AREA AND VICINITY, AND THAT THEIR
PROPERTY WILL BE REDUCED IN VALUE IN CONSEQUENCE OF THE DIVERSION OF
TRAFFIC TO THE RIVAL MARKET.  THE PETITIONER, KANSAS CITY, MISSOURI, IN
INTERVENTION, IN NO. 35, ALLEGES THE LIKE INJURY TO THE PUBLIC WHICH IT
REPRESENTS AND SETS UP SPECIFICALLY THE THREATENED LOSS IN VALUE AND
UTILITY OF A LARGE PUBLIC MARKET STRUCTURE WHICH IT IS NOW BUILDING AT
GREAT COST, AND THE THREATENED LOSS TO IT OF TAXES THROUGH DIMINUTION
IN PROPERTY VALUES IN THE CITY. 

THE STATUTE DOES NOT DEFINE THE "PARTIES IN INTEREST" WHOM IT PERMITS
TO SUE TO RESTRAIN AN UNAUTHORIZED EXTENSION.  IT CANNOT BE ASSUMED
THAT THE PHRASE IS MEANINGLESS OR THAT THE STATUTE SHOULD BE READ AS
THOUGH THE WORDS WERE OMITTED.  OBVIOUSLY THE PARTIES INTENDED MUST
HAVE, AS DO PETITIONERS, AN INTEREST IN THE OUTCOME OF THE LITIGATION
OTHER THAN THE "COMMON CONCERN FOR OBEDIENCE TO LAW."  SEE
MASSACHUSETTS V. MELLON, 262 U.S. 447, 488.  AND AS THE LANGUAGE OF THE
STATUTE PLAINLY INDICATES, AND AS WE HAVE HELD, THEY MAY BE, AS ARE
PETITIONERS, OTHERS THAN THE PUBLIC BODIES NAMED IN THE STATUTE AS
APPROPRIATE PLAINTIFFS.  ATCHISON, T. & S.F. RY. CO. V. RAILROAD
COMMISSION, 283 U.S. 380, 393, 394.  AND THEY MAY MAINTAIN THE SUIT
ALTHOUGH THE INJURY WHICH THEY ALLEGE IS NOT STRICTLY AN ACTIONABLE
WRONG INDEPENDENTLY OF THE PARAGRAPHS IN QUESTION.  WESTERN PACIFIC R.
CO. V. SOUTHERN PACIFIC CO., 284 U.S. 47. 

THE STATUTE DRAWS NO DISTINCTION BETWEEN DIRECT AND INDIRECT INJURY
AS THE TEST OF PLAINTIFF'S INTEREST.  NOR IS ANY REASON ADVANCED FOR
SAYING THAT HIS INTEREST IS MORE SIGNIFICANT BECAUSE THE INJURY WHICH
HE SUFFERS IS LABELED "DIRECT" RATHER THAN "INDIRECT."  IN ANY CASE,
THAT SUFFERED BY PETITIONERS DOES NOT SEEM TO BE ANY THE LESS DIRECT
THAN THAT WHICH AN EXTENSION MAY INFLICT UPON A COMPETING RAILROAD
WHICH ADMITTEDLY MAY SUE TO ENJOIN IT.  WESTERN PACIFIC R. CO. V.
SOUTHERN PACIFIC CO., SUPRA; CF. CLAIBORNE-ANNAPOLIS FERRY CO. V.
UNITED STATES, 285 U.S. 382.  IF THE STATUTE IMPOSES ANY REQUIREMENTS
OTHER THAN THOSE INDICATED BY THE PHRASE "PARTY IN INTEREST," THEY MUST
BE IMPLIED FROM THE PURPOSES OF THE STATUTE, ITS CONTEXT, AND FROM THE
REASONS FOR PERMITTING OTHERS THAN THE PUBLIC BODIES NAMED IN IT TO
BRING THE SUIT.  CF. NEW YORK CENTRAL SECURITIES CO. V. UNITED STATES,
287 U.S. 12, 24.  ON THE OTHER HAND IF MAINTENANCE OF THE PRESENT SUIT
BY PETITIONERS IS CONSISTENT WITH THOSE PURPOSES AND AIDS THEM AND IS
IN HARMONY WITH THE REASONS FOR ALLOWING ANY PARTY IN INTEREST TO SUE,
THE CONCLUSION WOULD SEEM INESCAPABLE THAT PETITIONERS ARE PROPER
PLAINTIFFS. 

IT IS NOT DENIED THAT THE STATUTORY LANGUAGE AND THE LEGISLATIVE
HISTORY OF THE PARAGRAPHS IN QUESTION REQUIRE CONSIDERATION BY THE
COMMISSION OF THE INTERESTS OF CITIES, TOWNS AND COMMUNITIES WHICH ARE
ADVERSELY AFFECTED BY A PROPOSED EXTENSION OF A LINE OF RAILROAD, IN
ORDER TO DETERMINE WHETHER "PUBLIC CONVENIENCE AND NECESSITY" REQUIRE
THE EXTENSION.  THE PHRASE "PUBLIC CONVENIENCE AND NECESSITY" HAS LONG
BEEN USED TO SIGNIFY THE FINAL RESULT OF THE BALANCING OF THE
CONSEQUENCES WHICH FLOW FROM THE PROPOSED ACTION TO ALL THOSE MATTERS
OF PUBLIC CONCERN WHICH ARE AFFECTED BY IT.  CF. CHESAPEAKE & OHIO RY.
CO. V. UNITED STATES, 283 U.S. 35, 42; UNITED STATES V. LOWDEN, 308
U.S. 225.  AND WE HAVE HELD THAT IN THE ADMINISTRATION OF THE COGNATE
PROVISION RELATING TO ABANDONMENT OF RAILROAD LINES THE COMMISSION MUST
CONSIDER AS A PART OF THE PUBLIC CONVENIENCE AND NECESSITY THE
INTERESTS OF LOCAL COMMUNITIES AFFECTED BY THE PROPOSED ABANDONMENT. 
COLORADO V. UNITED STATES, 271 U.S. 153, 168.  A COMMUNITY MAY SUFFER
INJURY THROUGH THE LOSS OF RAILROAD SERVICE AND DIVERSION OF TRAFFIC
RESULTING FROM THE CONSTRUCTION AND OPERATION OF A RAILROAD EXTENSION
WITHOUT ANY COMPENSATING PUBLIC ADVANTAGE WHICH IS COMPARABLE IN KIND
AND AMOUNT WITH INJURY SUSTAINED BY THE ABANDONMENT OF A LINE OF
RAILROAD.  ONE AS WELL AS THE OTHER SHOULD RECEIVE THE CONSIDERATION OF
THE COMMISSION IN DETERMINING WHETHER IT SHOULD GRANT OR WITHHOLD A
CERTIFICATE.  SUCH APPEARS TO BE ITS SETTLED PRACTICE ON APPLICATIONS
FOR A CERTIFICATE AUTHORIZING EXTENSION.  FN1 

IT IS PLAIN THAT THE PURPOSE OF THE STATUTE IS THE PROTECTION OF THE
PUBLIC INTEREST AND THAT IN THE ADMINISTRATION OF ITS PROVISIONS BY THE
COMMISSION PUBLIC INTEREST IS OF PARAMOUNT CONCERN.  THAT INTEREST IS
PRIMARILY THAT RAILROAD EXTENSIONS, AS THE STATUTE PROVIDES, SHALL NOT
BE BUILT OR OPERATED WITHOUT RECEIVING THE APPROVAL OF THE COMMISSION,
AND THAT THE COMMISSION SHALL GRANT ITS PERMISSION ONLY IF THE PUBLIC
CONVENIENCE AND NECESSITY SO REQUIRE. 

IN DETERMINING WHO MAY BRING THE SUIT TO RESTRAIN THE PROPOSED
CONSTRUCTION AS PROVIDED BY SEC. 1(20), IT IS SIGNIFICANT THAT THE SUIT
IS BROUGHT TO RESTRAIN AN ACT WHICH THE STATUTE DECLARES UNLAWFUL, THE
CONSTRUCTION OF AN EXTENSION WITHOUT THE CERTIFICATE OF THE COMMISSION,
SEC. 1(18), AND THAT THE FUNCTION OF THE COURT IS NOT THAT OF THE
COMMISSION IN GRANTING OR WITHHOLDING A CERTIFICATE.  THE ONLY ISSUE
WHICH CAN BE LITIGATED IN SUCH A SUIT, BROUGHT BY A PROPER PLAINTIFF,
IS WHETHER IN FACT THE PROPOSED CONSTRUCTION IS OF A SPUR OR SIDETRACK,
THE ONLY NEW TRACKAGE WHICH A RAILROAD MAY LAWFULLY BUILD WITHOUT
RECOURSE TO THE COMMISSION.  IT IS AN ISSUE WHICH IS BY PARAGRAPHS (18)
AND (22) OF SEC. 1 MADE A JUDICIAL, NOT AN ADMINISTRATIVE QUESTION AND
INVOLVES NO MORE COMPLEXITIES OF LITIGATION THAN MANY OTHER CASES WHICH
COURTS ARE CALLED ON DAILY TO DECIDE.  IN ANY CASE THE ISSUE IS ONE
WHICH CONGRESS DIRECTED TO BE LITIGATED IN A SUIT BROUGHT UNDER SEC.
1(20), AND ITS COMPLEXITY IS UNAFFECTED BY THE PARTICULAR PLAINTIFF WHO
BRINGS THE SUIT. 

IF THE PROPOSED CONSTRUCTION IS AN EXTENSION THE INJUNCTION MUST
ISSUE AS OF RIGHT, BUT ITS ONLY EFFECT IS TO COMPEL THE RAILROAD BEFORE
PROCEEDING FURTHER TO APPLY TO THE COMMISSION FOR A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY WHICH IS THE PUBLIC PURPOSE OF THE
ACT.  TEXAS & PACIFIC RY. CO. V. GULF, C. & S.F. RY. CO., 270 U.S. 266,
273.  THE COURT IS THUS CALLED ON TO DECIDE NO ADMINISTRATIVE ISSUE
WHICH MUST BE SUBMITTED TO THE COMMISSION IN ADVANCE OF SUIT, AND ANY
DECREE WHICH IT MAY RENDER INVOLVES NO EMBARRASSMENT TO THE COMMISSION
OR OTHERWISE IN THE ADMINISTRATION OF THE ACT.  WHILE THE COMMISSION
ITSELF MAY BRING THE SUIT, IT IS UNDER NO STATUTORY DUTY TO DO SO AND
ITS ONLY OTHER AUTHORITY IN THE PREMISES IS TO GRANT OR WITHHOLD THE
CERTIFICATE WHEN APPLIED FOR.  ONE INJURED BY AN UNAUTHORIZED EXTENSION
AND OPPOSED TO ITS CONSTRUCTION, WHETHER A STATE COMMISSION, A
COMPETING RAILROAD OR ANY OTHER INJURED PARTY, IS NOT AUTHORIZED TO
INITIATE ANY PROCEEDING BEFORE THE COMMISSION AND ITS ONLY PROTECTION
AS OF RIGHT FROM THE CONSEQUENCES OF THE THREATENED PUBLIC WRONG IS
THAT AFFORDED BY SUIT AUTHORIZED BY SEC. 1(20).  SEE TEXAS & PACIFIC
RY. CO. V. GULF, C. & S.F. RY. CO., SUPRA, 272-274. 

IN CONSIDERING THE SCOPE OF THE APPLICATION OF THE STATUTE THIS COURT
HAS RECOGNIZED THAT THE PUBLIC INTEREST WHICH THE COMMISSION IS TO
PROTECT INCLUDES THE PUBLIC INTEREST IN THE MAINTENANCE OF AN ADEQUATE
TRANSPORTATION SYSTEM AND THAT A RAILROAD WHOSE WELFARE, ALTHOUGH NOT
ITS LEGAL RIGHT, IS ADVERSELY AFFECTED BY AN UNAUTHORIZED AND THEREFORE
UNLAWFUL EXTENSION OF THE LINE OF ANOTHER IS A "PARTY IN INTEREST"
ENTITLED TO MAINTAIN SUIT TO ENJOIN THE EXTENSION.  WESTERN PACIFIC R.
CO. V. SOUTHERN PACIFIC CO., SUPRA; CF. CLAIBORNE-ANNAPOLIS FERRY CO.
V. UNITED STATES, SUPRA.  AND IT HAS HELD THAT ONE OTHER THAN A CARRIER
(A MUNICIPALITY), WHO HAS "A PROPER INTEREST IN THE SUBJECT MATTER,"
MAY INSTITUTE A PROCEEDING BEFORE THE INTERSTATE COMMERCE COMMISSION
UNDER SEC. 1, PARAGRAPHS 18 TO 22, TO OBTAIN A CERTIFICATE OF PUBLIC
CONVENIENCE, SO AS TO ENABLE A RAILROAD TO BUILD AN EXTENSION TO A NEW
STATION WHICH A STATE COMMISSION HAS ORDERED IT TO BUILD.  ATCHISON, T.
& S.F. RY. CO. V. RAILROAD COMMISSION, SUPRA, 393, 394.  COMPARE
DETROIT & M. RY. CO. V. BOYNE CITY, G. & A.R. CO., 286 F. 540. 

BUT IT HAS NEVER HELD, UNLESS IT HAS DONE SO NOW, THAT THE PUBLIC
CONCERN IN PROTECTING LARGE COMMUNITIES FROM DESTRUCTION OF THEIR
BUSINESS AND FINANCIAL INTERESTS BY DIVERSION OF TRAFFIC TO RIVAL
COMMUNITIES BY RAILROAD EXTENSIONS, IS NOT INCLUDED IN THAT PUBLIC
CONVENIENCE AND NECESSITY WHICH THE COMMISSION MUST CONSIDER IN
GRANTING OR WITHHOLDING A CERTIFICATE; OR THAT ONE NOT A RAILROAD WHO
IS A MEMBER OF A COMMUNITY ADVERSELY AFFECTED AND WHOSE OWN BUSINESS OR
PROPERTY INTERESTS ARE SO ADVERSELY AFFECTED IS NOT A "PARTY IN
INTEREST" WITHIN THE MEANING OF THE STATUTE. 

IF THE STATUTE PERMITS SOME PROTECTION THROUGH COMMISSION ACTION OF
THE PUBLIC INTEREST IN THE PRESERVATION OF COMMUNITIES ADVERSELY
AFFECTED BY THE CONSTRUCTION OF RAILROAD EXTENSIONS, NO PLAUSIBLE
REASON HAS BEEN ADVANCED FOR SAYING THAT AN INDIVIDUAL MEMBER OF SUCH A
COMMUNITY WHOSE PROPERTY OR FINANCIAL INTERESTS ARE ADVERSELY AFFECTED
BY THE PROPOSED UNAUTHORIZED EXTENSION, AND WHO WOULD BE A PROPER PARTY
TO THE PROCEEDING BEFORE THE COMMISSION ON APPLICATION FOR A
CERTIFICATE,  FN2  IS NOT A PARTY IN INTEREST, ENTITLED TO BRING SUIT
QUITE AS MUCH AS A COMPETING RAILROAD WHOSE PROPERTY INTERESTS ARE
LIKEWISE AFFECTED.  ON THE CONTRARY, PETITIONERS HAVE A SPECIAL AND
PECULIAR INTEREST IN PREVENTING THE UNLAWFUL EXTENSION AND IN SECURING,
BEFORE THE EXTENSION IS BUILT, SUCH CONSIDERATION OF THE COMMUNITY
INTEREST AS THE COMMISSION GIVES, AND WHICH CAN BE INSURED ONLY BY
RESORT TO THE SUIT AUTHORIZED BY SEC. 1(20). 

TRUE, THE STATUTE IS CONCERNED WITH THE PROTECTION OF THE PUBLIC
INTEREST BUT IN ORDER THAT THE PUBLIC INTEREST MIGHT NOT SUFFER, AND
THAT PRIVATE INJURY MIGHT NOT BE INFLICTED THROUGH A PUBLIC WRONG, THE
CONSTRUCTION OF AN UNLAWFUL EXTENSION, CONGRESS DID NOT RESTRICT THE
AUTHORITY TO BRING SUIT TO PUBLIC AGENCIES - THE UNITED STATES, THE
COMMISSION OR STATE COMMISSIONS.  CONGRESS BY PROVIDING THAT
APPLICATIONS FOR CERTIFICATES OF CONVENIENCE NEED NOT BE MADE FOR LOCAL
SPUR OR SIDE TRACKS, RECOGNIZED THAT SUCH CONSTRUCTIONS ARE TOO TRIVIAL
TO REQUIRE A PROCEEDING BEFORE THE COMMISSION.  INSTEAD IT GAVE
AUTHORITY TO BRING THE SUIT TO PRIVATE PARTIES IN INTEREST, WHO BECAUSE
OF THE INJURY ESPECIALLY INFLICTED UPON THEM THROUGH THE ADVERSE EFFECT
OF THE UNLAWFUL EXTENSION ON THE PUBLIC, HAVE A PECULIAR INCENTIVE TO
PROTECT THE PUBLIC INTEREST WITH WHICH THE STATUTE IS CONCERNED, SEE
FEDERAL COMMUNICATIONS COMM'N V. SANDERS BROS. RADIO STATION, 309 U.S.
470, 477, AND WHO BY RESTRAINING AN UNAUTHORIZED "EXTENSION" INSURE THE
EXPERT CONSIDERATION BY THE COMMISSION IN THE SITUATION IN WHICH
CONGRESS REQUIRED IT. 

JUST AS CONGRESS GAVE AUTHORITY TO A RAILROAD TO SUE TO ENJOIN AN
UNAUTHORIZED EXTENSION BY ITS COMPETITOR IN ORDER TO EFFECT THE
RAILROAD POLICY OF THE ACT, IT GAVE LIKE AUTHORITY TO COMPLAINANTS TO
EFFECT ITS PUBLIC POLICY WITH RESPECT TO A COMMUNITY INJURIOUSLY
AFFECTED BY AN UNLAWFUL RAILROAD EXTENSION.  THE STATUTE GIVES NO
WARRANT FOR SAYING THAT THE ONE MAY BRING SUIT BUT THAT THE OTHER CAN
ONLY ASK SOME PUBLIC BODY TO BRING IT; AND NEITHER INTERFERES WITH THE
FUNCTIONS WHICH THE COMMISSION IS AUTHORIZED TO PERFORM AND WHICH, AS
WE HAVE SEEN, ARE DISTINCT FROM THOSE ASSIGNED TO THE COURT BY SEC.
1(20). 

MAINTENANCE OF THE SUIT BY COMPLAINANTS IS THUS WITHIN THE FAIR
MEANING OF THE WORDS OF THE STATUTE.  IT AIDS RATHER THAN OBSTRUCTS THE
ADMINISTRATION OF THE ACT; IT EFFECTUATES THE PUBLIC POLICY OF THE ACT
AND IS WITHIN THE REASON FOR PERMITTING OTHERS THAN PUBLIC AGENCIES TO
BRING THE SUIT.  THEY ARE "PARTIES IN INTEREST" TO WHICH THE STATUTE
REFERS. 

SINCE THE SUIT WAS PROPERLY BROUGHT THE DISTRICT COURT SHOULD
ENTERTAIN AND DECIDE THE PETITION OF KANSAS CITY FOR INTERVENTION IN
THE LIGHT OF 28 U.S.C. SEC. 45A AND RULE 24 OF THE RULES OF CIVIL
PROCEDURE. 

FN1  SEE AROOSTOOK VALLEY R. CO., CONSTRUCTION, 105 I.C.C. 643;
MINNESOTA WESTERN R. CO., CONSTRUCTION, 111 I.C.C. 377; NORTHERN
OKLAHOMA RYS., CONSTRUCTION, 111 I.C.C. 765; CONSTRUCTION OF PIEDMONT &
NORTHERN RY. CO., 138 I.C.C. 363; WESTERN PACIFIC CALIFORNIA R. CO.,
162 I.C.C. 5.  AND IN BALANCING THE PUBLIC CONVENIENCES AND NECESSITIES
INVOLVED, THAT IS TO SAY THE PUBLIC INTEREST IN AN ADEQUATE
TRANSPORTATION SYSTEM AND THE PUBLIC INTEREST IN PROTECTING LOCAL
COMMUNITIES FROM UNDUE INJURY FROM EXTENSIONS OF RELATIVELY SMALL
TRANSPORTATION IMPORTANCE, THE COMMISSION HAS SOMETIMES FOUND THE
INJURY TO EXISTING COMMUNITY INTERESTS PERSUASIVE GROUND FOR REFUSING
THE CERTIFICATE.  CONSTRUCTION BY AROOSTOOK VALLEY R. CO., SUPRA;
CONSTRUCTION BY MINNESOTA WESTERN R. CO., SUPRA. 

THE BROAD SCOPE OF THE COMMISSION'S INQUIRY IS EVIDENCED BY THE
QUESTIONNAIRE WHICH APPLICANTS FOR AN EXTENSION MUST ANSWER.  AMONG THE
DATA REQUIRED IS THE NATURE OF THE POPULATION, THE TERRITORY, THE
INDUSTRIES INVOLVED, THE NAMES AND CHARACTER OF TOWNS NEAR TO BUT NOT
SERVED BY THE EXTENSION.  SEE IN THE MATTER OF APPLICATIONS UNDER
PARAGRAPHS (18) AND (21), INCLUSIVE, SECTION 1, OF THE INTERSTATE
COMMERCE ACT FOR CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY FOR
THE CONSTRUCTION OR EXTENSION OF LINES OF RAILROAD, JANUARY 22, 1924. 
III-A SHARFMAN, THE INTERSTATE COMMERCE COMMISSION, 333-335, 351. 

FN2  IT IS SETTLED POLICY OF THE INTERSTATE COMMERCE ACT AND RELATED
STATUTES TO PERMIT SHIPPERS, CITIES, COMMERCIAL ORGANIZATIONS AND OTHER
INTERESTED PARTIES TO PARTICIPATE IN PROCEEDINGS BEFORE THE COMMISSION
AND IN THOSE BEFORE THE COURTS WHERE THE APPLICATION OF THE STATUTE IS
INVOLVED.  SECTION 9, 24 STAT. 382, 49 U.S.C. SEC. 9, PERMITS ANY
PERSON "CLAIMING TO BE DAMAGED" BY A CARRIER TO MAKE COMPLAINT TO THE
COMMISSION OR TO BRING SUIT IN A DISTRICT COURT.  COMMUNITIES, SHIPPERS
AND ASSOCIATIONS MAY MAKE COMPLAINT TO THE COMMISSION UNDER SEC. 13(1),
49 U.S.C. SEC. 13(1), 24 STAT. 383 AS AMENDED, 36 STAT. 550.  SEE,
UNITED STATES V. MERCHANTS & MANUFACTURERS TRAFFIC ASSN., 242 U.S.
178.  SECTION 42 PROVIDES THAT IN ACTIONS TO STOP REBATES AND
CONCESSIONS "ALL PERSONS INTERESTED IN OR AFFECTED BY THE RATE OR
REGULATION OR PRACTICE" MAY BE MADE PARTIES.  SECTIONS 212 AND 213 OF
THE JUDICIAL CODE, 28 U.S.C. SEC. 45A, PROVIDE THAT "COMMUNITIES,
ASSOCIATIONS, CORPORATIONS, FIRMS AND INDIVIDUALS WHO ARE INTERESTED IN
THE CONTROVERSY OR QUESTION" BEFORE THE COMMISSION OR IN ANY SUIT WHICH
MAY BE BROUGHT UNDER THE ACT MAY INTERVENE. 

THE CHIEF JUSTICE AND MR. JUSTICE REED CONCUR IN THIS OPINION. 
..END :
















U.S. V. NORTHERN PACIFIC RY. CO., 311 U.S. 317 


NOS. 3 AND 4.  ARGUED MARCH 4, 5, 1940.  NO. 3, REARGUED OCTOBER 15, 16,
1940.  - DECIDED DECEMBER 16, 1940.  - AFFIRMED IN PART - REVERSED IN
PART. 


1.  IN A SUIT UNDER THE ACT OF JUNE 25, 1929, FOR AN ACCOUNTING, ETC.
BETWEEN THE UNITED STATES AND THE NORTHERN PACIFIC RAILWAY COMPANY,
WITH RESPECT TO THE LAND GRANTS MADE BY THE UNITED STATES TO THAT
COMPANY'S PREDECESSOR, DECISION ON THE FOLLOWING PROPOSITIONS OF THE
GOVERNMENT, EACH ADVANCED AS A DEFENSE TO ANY RELIEF FOR THE COMPANY,
ARE RESERVED, EIGHT JUSTICES WHO HEARD THE CASE BEING EQUALLY DIVIDED
IN OPINION CONCERNING THEM, VIZ.: 

(A)  THAT THE OBLIGATIONS OF THE UNITED STATES UNDER THE ACT OF JULY
2, 1864, WERE AVOIDED BY THE ALLEGED FAILURE OF THE GRANTEE TO OBTAIN
BONA FIDE SUBSCRIPTIONS TO ITS STOCK AND PAYMENTS THEREON, AS THE ACT
REQUIRED.  P. 335. 

(B)  THAT THE GRANTEE FAILED TO BUILD ITS WHOLE RAILROAD AS REQUIRED
BY THAT ACT, IN AS MUCH AS IT DID NOT LOCATE OR CONSTRUCT IT BETWEEN
WALLULA AND PORTLAND, A DISTANCE OF 225 MILES, BUT INSTEAD SECURED
RUNNING RIGHTS OVER TRACKS OF ANOTHER COMPANY CONNECTING THOSE TWO
PLACES.  P. 336. 

(C)  THAT THE GRANTEE, BY DIVERTING TO THE BUILDING AND SUPPORT OF
ALLEGEDLY UNJUSTIFIED AND UNPROFITABLE BRANCH LINES, FUNDS WHICH IT
SHOULD HAVE USED TO COMPLETE ITS MAIN LINE, BROKE ITS CONTRACT WITH THE
UNITED STATES AND THEREBY LOST THE RIGHT TO MAKE FURTHER LIEU
SELECTIONS OF LAND.  P. 336. 

(D)  THAT THE GRANTEE BROKE ITS CONTRACT WITH THE UNITED STATES BY
REFUSING TO OPEN LAND GRANTED IT BY THE RESOLUTION OF 1870 TO
SETTLEMENT AND PREEMPTION AT $2.50 PER ACRE, AND IS THEREFORE NOT
ENTITLED TO ANY RELIEF IN THIS CASE.  P. 337. 

(E)  THAT, THROUGH UNAUTHORIZED PRELIMINARY WITHDRAWALS OF PLACE AND
INDEMNITY LANDS MADE BY THE SECRETARY OF THE INTERIOR IN THE INTEREST
OF THE GRANTS, THE GRANTEE AND ITS SUCCESSOR RECEIVED BENEFITS, LANDS
AND VALUES TO WHICH THEY WERE NOT ENTITLED, PRECLUDING ANY AWARD TO THE
RAILROAD COMPANY IN THIS CASE.  P. 339. 

(F)  THAT FORECLOSURES AND REORGANIZATIONS AFFECTING THE RAILROAD
COMPANY AND ITS PROPERTY DEBARRED THE COMPANY FROM SELECTING MORE LIEU
LANDS.  P. 340. 

2.  UNDER THE ACT OF JULY 2, 1864, AND THE JOINT RESOLUTION OF MAY
31, 1870, GRANTING LAND TO THE NORTHERN PACIFIC RAILROAD COMPANY, LAND
IN THE INDEMNITY LIMITS WAS NOT SUBJECT TO SELECTION, IN LIEU OF LAND
LOST IN THE PLACE LIMITS, UNTIL IDENTIFIED AS ODDNUMBERED SECTIONS BY
AN OFFICIAL SURVEY; NOR COULD MINERAL LAND BE SELECTED.  P. 342. 

3.  IN DETERMINING THE EXISTENCE AND EXTENT OF DEFICIENCIES IN THESE
GRANTS ON THE DATES OF WITHDRAWALS BY THE GOVERNMENT OF LAND IN THE
INDEMNITY LIMITS FOR FORESTRY AND OTHER PURPOSES, TRACTS UNSURVEYED, OR
CLASSIFIED AS MINERAL, ARE NOT TO BE COUNTED AS THEN AVAILABLE FOR
SELECTION BY THE RAILROAD.  P. 342. 

4.  THE FACT THAT BY THE TERMS OF THE GRANTING ACTS THE LAND IN THE
INDEMNITY LIMITS WAS, BEFORE SURVEY, SUBJECT TO BE TAKEN BY PREEMPTORS
AND SETTLERS, WHEREBY ULTIMATE SATISFACTION OF THE GRANTS MIGHT BE
DEFEATED, DID NOT JUSTIFY THE GOVERNMENT IN RESERVING SUCH LAND TO
ITSELF AND THUS RENDERING IT IMPOSSIBLE FOR THE COMPANY TO OBTAIN IT.
UNITED STATES V. NORTHERN PACIFIC RAILWAY CO., 256 U.S. 51.  P. 344. 

5.  THE RIGHT OF THE RAILROAD COMPANY, UNDER THE ACT OF JUNE 25, 1929,
TO BE INDEMNIFIED FOR DEFICIENCIES IN ITS GRANTS CAUSED BY GOVERNMENTAL
RESERVATIONS OF LAND WITHIN THE INDEMNITY LIMITS DOES NOT DEPEND UPON
PROOF BEING MADE BY THE COMPANY THAT, BUT FOR THE WITHDRAWALS, IT WOULD
HAVE SELECTED TRACTS SO RESERVED, AND WHAT TRACTS IT WOULD HAVE
SELECTED.  P. 346. 

THE COMPANY'S RIGHT OF SELECTION, TO THE EXTENT OF THE DEFICIENCIES
IN THE GRANTS, REMAINED AVAILABLE AS TO THE WITHDRAWN LANDS PROVIDED
THE LANDS SELECTED WERE SUCH AS ARE DEFINED IN THE GRANTS.  THE
GOVERNMENT'S CONTENTION THAT NO ONE CAN SAY HOW SOON THE LANDS WOULD
HAVE BEEN SURVEYED AND SELECTED IF THEY HAD NOT BEEN WITHDRAWN AND
RESERVED, OR WHAT AREAS WOULD HAVE BEEN TAKEN UP BY SETTLERS AND
PREEMPTORS IF THERE HAD BEEN NO WITHDRAWALS OR SURVEYS, DOES NOT AVAIL
TO ABROGATE OR QUALIFY THE COMPANY'S RIGHT TO EXERCISE ITS PRIVILEGE OF
SELECTION NOTWITHSTANDING THE WITHDRAWALS.  MOREOVER, THE ARGUMENT
IGNORES THE REPEAL OF THE PREEMPTION LAWS BY THE ACT OF MARCH 3, 1891. 
P. 347. 

6.  THE INDIAN TREATIES OF SEPTEMBER 17, 1851(FORT LARAMIE), AND
OCTOBER 17, 1855(BLACKFEET), WHICH PURPORT TO "RESERVE" VAST TRACTS OF
THE INDIAN COUNTRY, DID NOT CREATE TECHNICAL RESERVATIONS BUT MERELY
DEMARKED THE AREAS TO BE OCCUPIED BY THE RESPECTIVE TRIBES, THE OBJECT
BEING TO PROMOTE PEACE AMONG THEM AND BETWEEN THEM AND THE UNITED
STATES.  THE STATUS OF THE LAND AS "INDIAN COUNTRY," OWNED BY THE
UNITED STATES SUBJECT TO THE INDIAN RIGHT OF OCCUPANCY, WAS NOT
ALTERED.  P. 347. 

7.  LAND ALONG THE DEFINITE LOCATION OF THE NORTHERN PACIFIC WHERE IT
TRAVERSED AREAS DESCRIBED IN THESE TREATIES WAS NOT "RESERVED" WITHIN
THE MEANING OF SEC. 3 OF THE ACT OF 1864; AND THE UNDERTAKING OF THE
UNITED STATES TO EXTINGUISH THE INDIAN TITLE (SEC. 2 OF THAT ACT)
APPLIED NOT ONLY TO THE RIGHT-OF-WAY BUT ALSO TO THE LANDS IN THE PLACE
AND INDEMNITY LIMITS.  P. 348. 

8.  THE ALLEGATIONS OF THE GOVERNMENT BILL DO NOT SUPPORT ITS
CONTENTION THAT THE RAILROAD COMPANY SHOULD BE CHARGED IN THIS CASE
WITH A LARGE AMOUNT OF LAND ALLEGED TO HAVE BEEN OBTAINED ILLEGALLY, AS
A RESULT OF THE COMPANY'S HAVING ADOPTED AN UNNECESSARILY CIRCUITOUS
ROUTE BETWEEN CERTAIN POINTS OF ITS LINE IN THE TERRITORY OF
WASHINGTON.  P. 349. 

9.  THE RAILROAD WAS ENTITLED, UNDER THE ACT OF 1864 AND THE
RESOLUTION OF 1870, TO MAKE SELECTIONS OF LAND IN THE SECOND INDEMNITY
LIMITS IN MONTANA IN LIEU OF PLACE SECTIONS LOST TO IT AS A RESULT OF
THE CREATION, IN 1868, OUT OF COUNTRY DESCRIBED IN THE TREATY OF 1851,
SUPRA, OF THE CROW RESERVATION - A TYPICAL INDIAN RESERVATION.  P.
352. 

10.  THE ADDITION OF LANDS IN THE RAILROAD'S INDEMNITY LIMITS TO THE
NORTHERN CHEYENNE INDIAN RESERVATION IN MONTANA, BY EXECUTIVE ORDER OF
MARCH 19, 1900, CONFIRMED BY ACT OF CONGRESS OF JUNE 3, 1926, WAS A
WITHDRAWAL OF SUCH LANDS AS A "GOVERNMENT RESERVATION" AND FOR
"GOVERNMENTAL PURPOSES" WITHIN THE INTENT OF THE ACT OF JUNE 25, 1929;
AND WITHIN THE MEANING OF THAT ACT SUCH LANDS WERE, ON JUNE 5, 1924,
LANDS EMBRACED WITHIN THE EXTERIOR BOUNDARIES OF A GOVERNMENT
RESERVATION, FOR WHICH THE RAILROAD IS ENTITLED TO CLAIM COMPENSATION. 
P. 353. 

11.  LANDS IN THE NORTHERN PACIFIC INDEMNITY LIMITS WHICH, AFTER
BEING RESERVED BY THE GOVERNMENT FOR FORESTRY AND OTHER PURPOSES, WERE
FILED UPON BY HOMESTEADERS BEFORE JUNE 5, 1924, AND WERE PATENTED TO
THEM AFTER THAT DATE, ARE LANDS FOR WHICH THE ACT OF JUNE 25, 1929
AWARDS INDEMNITY, AS LANDS WHICH ON JUNE 5, 1924, WERE EMBRACED IN A
GOVERNMENT RESERVATION, AND WHICH, IN THE EVENT OF A DEFICIENCY OF THE
RAILROAD'S GRANTS ON THE DATE OF WITHDRAWAL FOR GOVERNMENTAL PURPOSES,
"WOULD BE, OR WERE" AVAILABLE FOR SELECTION.  P. 354. 

12.  UNDER THE ACT OF FEBRUARY 26, 1895, GOVERNMENT COMMISSIONERS
UNDERTOOK TO EXAMINE AND TO CLASSIFY AS MINERAL OR NON-MINERAL ALL
LANDS WITHIN THE PLACE AND INDEMNITY LIMITS OF THE NORTHERN PACIFIC
RAILROAD IN FOUR LAND DISTRICTS OF MONTANA AND IDAHO, AND MADE THEIR
REPORTS, WHICH WERE ACCEPTED AND APPROVED BY THE SECRETARY OF THE
INTERIOR.  IN LIEU OF PLACE SECTIONS SO CLASSIFIED AS MINERAL, THE
RAILROAD OBTAINED PATENTS FOR MUCH INDEMNITY LAND AND IN THIS SUIT
CLAIMS CREDIT FOR MORE.  THE GOVERNMENT ALLEGES AND THE RAILROAD DENIES
THAT THE COMMISSIONERS WERE PERSUADED BY FRAUDULENT PRACTICES OF THE
RAILROAD TO CLASSIFY AS MINERAL, LANDS OF LITTLE VALUE SO THAT THE
RAILROAD COULD SELECT MORE VALUABLE TRACTS IN LIEU.  HELD: 

(1)  UNDER THE ACT OF JUNE 25, 1929, THIS ISSUE OF FRAUD SHOULD GO TO
TRIAL.  P. 355. 

(2)  ALTHOUGH IT WAS ALLEGED, AND FOUND BY THE COURT BELOW, THAT THE
COMMISSIONERS COULD NOT POSSIBLY EXAMINE AND CLASSIFY THE LANDS WITHIN
THE TIME LIMITED BY THE ACT OF 1895, THEIR REPORTS AND THE APPROVAL AND
ACCEPTANCE OF THEM BY THE SECRETARY OF THE INTERIOR, CREATE A PRIMA
FACIE SHOWING IN FAVOR OF THE CLASSIFICATION AND OF THE RAILROAD'S
INDEMNITY SELECTIONS BASED THEREON.  P. 358. 

(3)  THE BURDEN OF PROVING THE FRAUD ALLEGED IS ON THE UNITED
STATES.  P. 358. 

(4)  THE UNITED STATES IS NOT BARRED BY LACHES OR ESTOPPEL FROM
ASSERTING AND PROVING THE ALLEGED FRAUD, AND FROM HAVING THE RAILROAD
CHARGED WITH ANY LANDS OR VALUES RECEIVED AS A RESULT OF IT.  P. 358. 

13.  THE "AGRICULTURAL" LAND WHICH THE RAILROAD WAS ENTITLED TO
SELECT UNDER THE ACT OF 1864 IN LIEU OF MINERAL LAND IS SUCH LAND AS,
BY LAND OFFICE PRACTICE AND PUBLIC LAND LAWS, WOULD HAVE BEEN AVAILABLE
TO INDIVIDUALS FOR CLEARING AND SUBSEQUENT CULTIVATION, OR FOR GRAZING,
OR FOR ANY OTHER PURPOSE COMMONLY CLASSIFIED BY THE LAND OFFICE AS
COMING WITHIN THE PREEMPTION AND HOMESTEAD LAWS; BUT IT DOES NOT
INCLUDE LAND VALUABLE SOLELY FOR TIMBER.  P. 358. 

14.  THE UNITED STATES IS LIABLE TO ACCOUNT TO THE RAILROAD FOR LANDS
IN INDEMNITY LIMITS WHICH THE RAILROAD COULD HAVE SELECTED IF AND WHEN
SURVEYED, HAD THEY NOT BEEN WITHDRAWN BY THE GOVERNMENT.  P. 364. 

15.  IN AS MUCH AS, UNDER THE ACT OF 1929, THE RAILROAD'S RIGHT TO
COMPENSATION DEPENDS UPON THE AVAILABILITY OF LANDS ON THE DATES OF THE
WITHDRAWALS FOR GOVERNMENTAL PURPOSES, THE CLAIM OF THE GOVERNMENT THAT
SUBSEQUENT RESTORATIONS OF WITHDRAWN LANDS TO THE PUBLIC DOMAIN,
SUFFICIENT IN AREA TO MAKE UP THE DEFICIENCY CREATED BY THE
WITHDRAWALS, DEFEATED THE RAILROAD'S CLAIM TO CHOOSE LANDS WITHIN THE
WITHDRAWAL AREAS, IS NOT SUSTAINED, IN THE LIGHT OF THE FACTS.  P.
365. 

16.  FOR ANY FINANCIAL DETRIMENT TO THE UNITED STATES OR FINANCIAL
BENEFIT TO THE COMPANY THAT THE GOVERNMENT MAY PROVE TO HAVE RESULTED
FROM THE ACTION OF THE DEPARTMENT OF THE INTERIOR IN PREMATURELY
WITHDRAWING LANDS IN THE PLACE AND INDEMNITY LIMITS FROM SETTLEMENT AND
PREEMPTION, THE COMPANY SHOULD BE CHARGED AND THE UNITED STATES
CREDITED, UNDER SEC. 6 OF THE ACT OF JUNE 25, 1929.  P. 366. 

17.  THE PROVISO OF THE RESOLUTION OF 1870, REQUIRING THAT GRANTED
LANDS BE OPENED BY THE COMPANY TO SETTLEMENT AND PREEMPTION APPLIES
ONLY TO THE ADDITIONAL LANDS GRANTED BY THAT RESOLUTION AND NOT TO
LANDS ACQUIRED UNDER THE GRANT OF 1864.  P. 367. 

18.  THE COMPANY WAS NOT A TRUSTEE OF SUCH LANDS FOR THE UNITED
STATES EITHER IN ITS OWN RIGHT OR IN BEHALF OF POSSIBLE SETTLERS.  IT
RESULTS THAT THE GOVERNMENT CAN NOT CALL UPON THE COMPANY TO ACCOUNT AS
A TRUSTEE FOR THE PROCEEDS OF SALE OF THE LANDS.  P. 368. 

19.  THE PROVISO OF THE RESOLUTION OF 1870 REQUIRED THE COMPANY TO
OPEN THE LANDS GRANTED BY THE RESOLUTION TO PREEMPTION AND SETTLEMENT
AT THE EXPIRATION OF FIVE YEARS FROM THE COMPLETION OF THE ENTIRE ROAD
IN 1887, WHETHER THE LANDS WERE THEN SUBJECT TO MORTGAGE OR NOT; ITS
FAILURE SO TO DO WAS A BREACH OF ITS CONTRACT WITH THE UNITED STATES;
AND THE GOVERNMENT IS ENTITLED TO PROVE, IF IT CAN, ANY DAMAGE TO IT,
OR ADVANTAGE TO THE COMPANY, WHICH RESULTED FROM THIS BREACH OF
CONTRACT.  P. 368. 

20.  THE COMPANY'S RIGHT TO RECEIVE PATENTS FOR INDEMNITY LANDS
OUTSIDE OF THE RESERVES FOR WHICH SELECTIONS WERE FILED WITH THE
DEPARTMENT OF THE INTERIOR PRIOR TO JUNE 5, 1924, CAN NOT BE ATTACKED
IN THIS SUIT UPON THE GROUND THAT THE BASES WERE FRAUDULENTLY
CLASSIFIED AS MINERAL, FOR THE REASON, AMONGST OTHERS, THAT THE BILL
PRAYS NO AFFIRMATIVE RELIEF IN RESPECT OF SUCH ALLEGED FRAUDULENT
CLASSIFICATION.  P. 369. 

21.  THE GOVERNMENT OBJECTED TO A PART OF THE DECREE BELOW DIRECTING
THAT THE COMPANY RECEIVE PATENTS TO CERTAIN INDEMNITY LANDS SELECTED
PRIOR TO JUNE 5, 1924, BASING THE OBJECTION ON THE GROUND THAT THE
COMPANY HAD NOT ASSIGNED BASES FOR SELECTIONS.  HELD THAT THE POINT IS
NOT OPEN FOR ARGUMENT, IT NOT HAVING BEEN PRESERVED IN THE RECORD.  P.
370. 

22.  THE RESOLUTION OF 1870, IN AUTHORIZING LOCATION AND CONSTRUCTION
OF THE NORTHERN PACIFIC LINE FROM PORTLAND TO TACOMA "UNDER THE
PROVISIONS AND WITH THE PRIVILEGES, GRANTS AND DUTIES PROVIDED FOR IN
ITS (THE COMPANY'S) ACT OF INCORPORATION," MADE A NEW GRANT WITH PLACE
AND INDEMNITY LIMITS OF THE SAME WIDTH AS THOSE PRESCRIBED FOR THE
RAILROAD BUILT UNDER THE CHARTER ACT OF 1864.  P. 372. 

23.  THE LAND OFFICE CONSTRUED THE RESOLUTION OF 1870 AS REQUIRING
THE LAYING DOWN OF SECOND INDEMNITY LIMITS FOR THE PORTLAND-TACOMA
LINE.  P. 375. 

24.  SUCH GRANTS ARE NOT QUANTITY GRANTS, BUT GRANTS OF LANDS "IN
PLACE" OR BY DESCRIPTION.  P. 375. 

25.  THE LANDS IN PLACE LIMITS, GRANTED TO THE NORTHERN PACIFIC UNDER
THE ACT OF 1864 IN AID OF ITS "CASCADE LINE," WHICH ARE EMBRACED ALSO
IN THE PLACE LIMITS OF THE GRANT MADE TO THE SAME COMPANY BY THE
RESOLUTION OF 1870 IN AID OF THE LATER PORTLAND-TACOMA LINE, ARE NOT
LANDS "GRANTED OR DISPOSED OF BY THE UNITED STATES" PRIOR TO THE LATER
GRANT FOR WHICH THE COMPANY WAS ENTITLED BY THAT RESOLUTION, TO MAKE
INDEMNITY SELECTIONS.  P. 376. 

UNITED STATES V. NORTHERN PACIFIC RAILWAY CO. ET AL.; AND 

NORTHERN PACIFIC RAILWAY CO. ET AL. V. UNITED STATES. 

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF WASHINGTON. 

THESE WERE CROSS APPEALS UNDER A SPECIAL ACT OF MAY 22, 1936, FROM A
DECREE OF THE DISTRICT COURT, IN A SUIT BROUGHT BY THE ATTORNEY GENERAL
PURSUANT TO AN ACT OF JUNE 25, 1929, TO DETERMINE ALL CONTROVERSIES
BETWEEN THE UNITED STATES AND THE NORTHERN PACIFIC RAILWAY COMPANY, AND
TO OBTAIN AN ACCOUNTING, ETC., IN RESPECT OF THE LAND GRANTS MADE TO
THAT COMPANY'S PREDECESSOR IN AID OF THE CONSTRUCTION OF THE RAILROAD. 
THE BILL NAMED AS PARTIES DEFENDANT, NORTHERN PACIFIC RAILWAY COMPANY,
NORTHERN PACIFIC RAILROAD COMPANY, "NORTHERN PACIFIC RAILROAD COMPANY,
AS REORGANIZED IN 1875," NORTHWESTERN IMPROVEMENT COMPANY, BANKERS
TRUST COMPANY, GUARANTY TRUST COMPANY, AND CITY BANK FARMERS TRUST
COMPANY.  THE GUARANTY TRUST COMPANY DISCLAIMED. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE CAUSE BROUGHT HERE BY THESE APPEALS INVOLVES THE CORRELATIVE
RIGHTS OF THE UNITED STATES AND THE NORTHERN PACIFIC RAILWAY COMPANY
ARISING OUT OF THE LAND GRANTS IN AID OF THE NORTHERN PACIFIC RAILROAD
COMPANY. 

BY AN ACT OF JULY 2, 1864,  FN1  DESIGNATED PERSONS WERE CREATED A
BODY CORPORATE, NORTHERN PACIFIC RAILROAD COMPANY, WHICH WAS AUTHORIZED
AND EMPOWERED TO LAY OUT, LOCATE, CONSTRUCT, AND MAINTAIN A CONTINUOUS
RAILROAD AND TELEGRAPH LINE FROM A POINT ON LAKE SUPERIOR TO PUGET
SOUND, WITH A BRANCH VIA THE VALLEY OF THE COLUMBIA RIVER, TO A POINT
AT OR NEAR PORTLAND, OREGON.  (SEC. 1.) 

THE ACT GRANTED A RIGHT OF WAY THROUGH THE PUBLIC LANDS, WITH
ADDITIONAL LANDS FOR STATIONS, ETC., AND THE UNITED STATES AGREED THAT
IT WOULD EXTINGUISH, AS RAPIDLY AS CONSISTENT WITH PUBLIC POLICY AND
THE WELFARE OF THE INDIANS, THE INDIAN TITLE TO ALL LANDS FALLING UNDER
THE OPERATION OF THE ACT AND "ACQUIRED IN THE DONATION TO THE (ROAD)." 
(SEC. 2.) 

IN AID OF CONSTRUCTION, AND TO SECURE TRANSPORTATION OF MAIL, TROOPS,
MUNITIONS, AND PUBLIC STORES, EVERY ALTERNATE SECTION OF PUBLIC LAND,
NOT MINERAL, WAS GRANTED TO THE AMOUNT OF TWENTY SECTIONS PER MILE ON
EACH SIDE OF THE LINE THROUGH TERRITORIES, AND TEN SECTIONS PER MILE
THROUGH STATES.  IN CASE ANY OF THESE SECTIONS HAD BEEN GRANTED, SOLD,
OCCUPIED BY HOMESTEAD SETTLERS, OR OTHERWISE DISPOSED OF AT THE TIME OF
DEFINITE LOCATION OF THE RAILROAD OPPOSITE SUCH SECTIONS, THE COMPANY
WAS TO BE ENTITLED TO SELECT, IN LIEU THEREOF, ALTERNATE ODD-NUMBERED
LIEU OF MINERAL LANDS, THE COMPANY MIGHT SELECT A LIKE QUANTITY OF
AGRICULTURAL LANDS "NEAREST TO THE LINE OF SAID ROAD AND WITHIN FIFTY
MILES THEREOF."  (SEC. 3.) 

WHENEVER TWENTY-FIVE CONSECUTIVE MILES OF ANY PORTION OF THE RAILROAD
AND TELEGRAPH BECAME READY FOR SERVICE, THE PRESIDENT WAS TO APPOINT
THREE COMMISSIONERS TO EXAMINE THE SAME AND, UPON THEIR FAVORABLE
REPORT, PATENTS WERE TO BE ISSUED TO THE COMPANY FOR THE LANDS OPPOSITE
THE COMPLETED SECTIONS.  THIS PROCEDURE WAS TO BE REPEATED AS EACH

THE GRANT WAS SUBJECT TO THE CONDITIONS THAT THE COMPANY SHOULD
COMMENCE WORK WITHIN TWO YEARS AND COMPLETE NOT LESS THAN FIFTY MILES
PER YEAR AFTER THE EXPIRATION OF THE SECOND YEAR, AND COMPLETE AND
EQUIP THE WHOLE ROAD BY JULY 4, 1876.  (SEC. 8.)  IN THE EVENT OF A
BREACH OF THESE CONDITIONS, NOT CURED WITHIN ONE YEAR, THE UNITED
STATES MIGHT "DO ANY AND ALL ACTS AND THINGS WHICH MAY BE NEEDFUL AND
NECESSARY TO INSURE A SPEEDY COMPLETION OF THE SAID ROAD."  (SEC. 9.) 

THE CAPITAL STOCK WAS TO BE PUBLICLY OFFERED TO THE PEOPLE OF THE
UNITED STATES; NO MORTGAGE OR CONSTRUCTION BONDS WERE TO BE ISSUED, OR
ANY MORTGAGE LIEN CREATED, EXCEPT WITH THE CONSENT OF CONGRESS.  (SEC.
10.)  THE ROAD WAS TO BE A POST AND MILITARY ROAD, FOR THE USE OF THE
UNITED STATES, SUBJECT TO REGULATIONS IMPOSED BY CONGRESS RESTRICTING
THE CHARGES FOR SUCH USE.  (SEC. 11.) 

THE ACCEPTANCE OF THE TERMS OF THE ACT WAS TO BE SIGNIFIED IN WRITING
BY THE BOARD OF DIRECTORS OF THE COMPANY WITHIN TWO YEARS AFTER THE
PASSAGE OF THE ACT.  (SEC. 12.) 

UNLESS THE COMPANY SHOULD OBTAIN BONA FIDE SUBSCRIPTIONS TO ITS STOCK
IN THE AMOUNT OF $2,000,000 WITH TEN PER CENT. PAID, WITHIN TWO YEARS
FROM THE APPROVAL OF THE ACT, THE ACT WAS TO BE NULL AND VOID.  (SEC.
19.) 

CONGRESS RESERVED POWER "AT ANY TIME, HAVING DUE REGARD FOR THE
RIGHTS OF SAID NORTHERN PACIFIC RAILROAD COMPANY," TO "ADD TO, ALTER,
AMEND, OR REPEAL" THE ACT.  (SEC. 20.) 

THE COMPANY CLAIMED TO HAVE BEEN DULY ORGANIZED AND THE INCORPORATORS
FILED THE ACCEPTANCE PROVIDED FOR IN SEC. 12 WITHIN TWO YEARS. 

THE BELIEF THAT THE ROAD COULD BE FINANCED BY POPULAR STOCK
SUBSCRIPTIONS PROVED UNFOUNDED.  THE TIME FOR COMMENCING AND COMPLETING
THE ROAD WAS TWICE EXTENDED N2.  THE DATE ULTIMATELY FIXED FOR FINAL
COMPLETION WAS JULY 4, 1879.  THE TENTATIVE ROUTE ADOPTED BY THE
COMPANY SHOWED A LINE REACHING TO PUGET SOUND VIA THE YAKIMA RIVER. 
ULTIMATELY THE LINE WAS SO DEFINITELY LOCATED AND CONSTRUCTED.  IN 1869
CONGRESS GAVE CONSENT TO THE ISSUE OF MORTGAGE BONDS,  FN3  AND ALSO
AUTHORIZED THE COMPANY TO EXTEND A BRANCH LINE FROM A POINT AT OR NEAR
PORTLAND TO A SUITABLE POINT ON PUGET SOUND AND TO CONNECT THE BRANCH
WITH THE MAIN LINE WEST OF THE CASCADE MOUNTAINS BUT MADE NO LAND GRANT
EXCEPT FOR THE RIGHT OF WAY.  FN4  THE COMPANY DID NOT AVAIL ITSELF OF
EITHER OF THE PRIVILEGES GRANTED.  MAY 31, 1870, CONGRESS AGAIN
AUTHORIZED THE COMPANY TO ISSUE BONDS TO AID IN THE CONSTRUCTION AND
EQUIPMENT OF ITS ROAD, TO BE SECURED BY MORTGAGE ON ALL OF ITS
PROPERTY, RAILROAD, LAND GRANT, AND FRANCHISE TO BE A CORPORATION.  IT
FURTHER AUTHORIZED THE LOCATION AND CONSTRUCTION OF THE MAIN RAILROAD
VIA THE VALLEY OF THE COLUMBIA RIVER TO PUGET SOUND AND OF A BRANCH
FROM THE MAIN LINE ACROSS THE CASCADE MOUNTAINS TO PUGET SOUND, AND
MADE A GRANT OF LAND IN CONNECTION WITH THE CONSTRUCTION AUTHORIZED
BETWEEN PORTLAND AND PUGET SOUND, ON THE SAME TERMS AS THE ORIGINAL
GRANT.  IT ALSO PROVIDED A SECOND INDEMNITY BELT EXTENDING TEN MILES
BEYOND THE FIRST ON EITHER SIDE OF THE RIGHT OF WAY.  FN5 

PURSUANT TO THIS AUTHORITY THE COMPANY CREATED BONDS, SECURED BY
MORTGAGE OF THE RAILROAD AND LAND GRANT.  BY DECEMBER 30, 1871, THE
LINE WAS COMPLETED FROM CARLTON, MINNESOTA, TO THE RED RIVER AT
MOORHEAD; BY THE SPRING OF 1873 IT WAS COMPLETED TO THE MISSOURI RIVER
AT BISMARCK, A TOTAL DISTANCE OF FOUR HUNDRED AND TWENTY-FOUR MILES. 
DURING THE SAME PERIOD THE ROAD FROM PORTLAND TO PUGET SOUND WAS
CONSTRUCTED FROM KALAMA, WASHINGTON, TO TACOMA, A DISTANCE OF ONE
HUNDRED AND SIX MILES.  THE LAND GRANT CONCOMITANT TO THIS CONSTRUCTION
AMOUNTED TO APPROXIMATELY TEN MILLION ACRES. 

THE PANIC OF 1873 CAUSED CESSATION OF CONSTRUCTION; THE COMPANY WAS
SHORT OF FUNDS; A RECEIVER WAS APPOINTED AND A REORGANIZATION EFFECTED
WHEREBY A BONDHOLDERS' COMMITTEE PURCHASED AT FORECLOSURE SALE, AND,
JOINTLY WITH THE RECEIVER, RECONVEYED THE PROPERTY TO THE COMPANY. 

CONSTRUCTION WAS RESUMED IN 1879 AND REACHED THE YELLOWSTONE RIVER IN
MONTANA IN 1880.  IN 1879 THE COMPANY BEGAN BUILDING EASTWARD AT
AINSWORTH IN WASHINGTON TERRITORY.  THE ROAD FROM CARLTON, MINNESOTA,
TO ASHLAND ON LAKE SUPERIOR WAS COMPLETED IN 1883.  EASTWARD AND
WESTWARD EXTENSIONS MET AT A POINT IN MONTANA IN AUGUST 1883.  THE
CASCADE BRANCH FROM PASCO TO TACOMA WAS COMPLETED IN 1887.  THE
COMPANY, BY CONTRACT WITH THE OREGON RAILROAD AND NAVIGATION COMPANY,
OBTAINED THE RIGHT TO USE THE LINE OF THE LATTER FROM WALLULA TO
PORTLAND WHERE IT CONNECTED WITH THE LINE TO PUGET SOUND.  AS SECTIONS
OF TWENTY-FIVE MILES WERE COMPLETED, COMMISSIONERS WERE APPOINTED,
EXAMINED THE ROAD, REPORTED FAVORABLY, AND THE CONSTRUCTION WAS
ACCEPTED BY THE PRESIDENT. 

THE CORPORATION CHARTERED BY CONGRESS OPERATED THE ROAD UNTIL
RECEIVERS WERE APPOINTED IN 1893.  PURSUANT TO FORECLOSURE PROCEEDINGS
THE NORTHERN PACIFIC RAILWAY COMPANY ACQUIRED TITLE TO THE RAILROAD,
THE LAND GRANT, AND ALL OTHER PROPERTY OF THE ORIGINAL CORPORATION AND
HAS SINCE OPERATED THE ROAD AND OBTAINED PATENTS FOR MILLIONS OF ACRES
UNDER THE LAND GRANTS. 

THE GRANT OF 1864 WAS OF THE TEN NEAREST ALTERNATE ODD-NUMBERED
LINE AS DEFINITELY LOCATED, IN A STATE, AND OF TWENTY SUCH SECTIONS IN
A TERRITORY.  THIS GRANT WAS IN PRAESENTI.  FN6  THE LANDS THUS GRANTED
ARE SPOKEN OF AS "PLACE LANDS."  THEY WERE IN TWO BELTS EACH TWENTY
MILES WIDE IN STATES, AND FORTY IN TERRITORIES, PARALLEL TO THE RIGHT
OF WAY. 

EXCEPTED FROM THE GRANT WERE LANDS RESERVED, GRANTED, APPROPRIATED,
PRE-EMPTED, OR SUBJECT TO OTHER CLAIMS AND RIGHTS AT THE DATE OF
DEFINITE LOCATION.  THESE EXEMPTED LANDS ARE SPOKEN OF AS "LANDS LOST
TO THE GRANT."  IN LIEU OF SUCH LOST LANDS THE ACT PROVIDED THAT OTHER
LANDS WERE TO BE SELECTED BY THE COMPANY, UNDER THE DIRECTION OF THE
SECRETARY OF THE INTERIOR, FROM ODD-NUMBERED SECTIONS NOT MORE THAN TEN
MILES BEYOND THE PLACE LANDS, ON EACH SIDE OF THE ROAD.  THE TWO TEN
MILE STRIPS THUS DEFINED ARE SPOKEN OF AS "THE FIRST INDEMNITY BELTS"
OR "THE FIRST INDEMNITY LIMITS." 

THE RESOLUTION OF MAY 31, 1870 GRANTED, AS RESPECTS THE ADDITIONAL
LINE AUTHORIZED BETWEEN PORTLAND AND PUGET SOUND, PLACE AND INDEMNITY
LANDS, AS GRANTED FOR THE ORIGINAL LINE BY THE ACT OF 1864.  IT ALSO
AUTHORIZED WHAT ARE SPOKEN OF AS "SECOND INDEMNITY" BELTS TEN MILES
WIDE, ON EITHER SIDE OF THE ORIGINAL INDEMNITY LIMITS, IN ANY STATE OR
TERRITORY IN WHICH THE COMPANY COULD NOT OBTAIN THE NUMBER OF SECTIONS
INTENDED FOR IT BY ITS CHARTER.  THIS ADDITIONAL GRANT, HOWEVER, WAS
CONDITIONED THAT LIEU LANDS IN THE SECOND INDEMNITY LIMITS MIGHT BE
CHOSEN ONLY IN THE SAME STATE OR TERRITORY IN WHICH PLACE LANDS WERE
LOST TO THE GRANT. 

MINERAL LANDS ARE EXCEPTED FROM BOTH GRANTS.  IN LIEU OF LANDS LOST
BECAUSE OF THEIR MINERAL CHARACTER THE LEGISLATION PERMITS SELECTION OF
AGRICULTURAL LANDS WITHIN FIFTY MILES ON EITHER SIDE OF THE RIGHT OF
WAY.  THESE FIFTY MILE STRIPS ARE KNOWN AS "THE MINERAL INDEMNITY
BELTS."  THEIR EXTERIOR LIMITS COINCIDE WITH THE EXTERIOR LIMITS OF THE
FIRST INDEMNITY BELT IN TERRITORIES AND LIE TEN MILES BEYOND THE
EXTERIOR LIMITS OF THE SECOND INDEMNITY BELTS IN STATES. 

"THE ULTIMATE OBLIGATION OF THE GOVERNMENT IN RESPECT OF THE
INDEMNITY LANDS IS ON THE SAME PLANE AS THAT RESPECTING THE LANDS IN
PLACE.  THE ONLY DIFFERENCE IS IN THE MODE OF IDENTIFICATION.  THOSE IN
PLACE ARE IDENTIFIED BY FILING THE MAP OF DEFINITE LOCATION, AND THE
INDEMNITY LANDS BY SELECTIONS MADE IN LIEU OF LOSSES IN THE PLACE
LIMITS."  FN7 

SINCE THE GRANT EXCLUDED MINERAL LANDS AND GAVE AGRICULTURAL LANDS IN
LIEU THEREOF, BUT MADE NO PROVISION FOR THE DETERMINATION OF THE
CHARACTER OF THE LANDS, CONGRESS PASSED AN ACT OF FEBRUARY 26, 1895,
FN8  WHICH DIRECTED THAT THE MINERAL CHARACTER OF THE LANDS SHOULD BE
ASCERTAINED BY A CLASSIFICATION BY COMMISSIONERS APPOINTED BY THE
PRESIDENT WHICH, WHEN APPROVED BY THE SECRETARY OF THE INTERIOR, SHOULD
BE FINAL EXCEPT IN CASE OF FRAUD.  SUCH A CLASSIFICATION WAS MADE,
WHEREBY APPROXIMATELY 3,782,377 ACRES OF PLACE LANDS AND MORE THAN
1,000,000 ACRES OF INDEMNITY LANDS, WERE ASCERTAINED TO BE MINERAL. 

BETWEEN MARCH 1, 1898, AND MAY 15, 1924, 1,103,424 ACRES IN THE FIRST
INDEMNITY LIMITS, UNDER THE 1864 GRANT, AND 961,992 ACRES IN SECOND
INDEMNITY LIMITS OF THE SAME GRANT, WERE WITHDRAWN AND PLACED IN
NATIONAL FORESTS AND OTHER GOVERNMENT RESERVATIONS.  DURING THE SAME
PERIOD 155,727 ACRES FROM THE FIRST INDEMNITY LIMITS OF THE GRANT OF
1870, AND 213,001 ACRES FROM THE SECOND INDEMNITY LIMITS LAID DOWN
UNDER THAT GRANT, WERE WITHDRAWN FOR THE SAME PURPOSES.  THIS ACTION
WAS TAKEN, IN THE MAIN, PURSUANT TO AN ACT OF MARCH 3, 1891.  FN9 

THE COMPANY SOUGHT TO SELECT INDEMNITY LANDS WITHIN THE RESERVATIONS
BUT THE SECRETARY OF THE INTERIOR WOULD NOT ACCEPT OR APPROVE THE
SELECTIONS AND THE COMPANY WAS UNABLE, BY LITIGATION, TO COMPEL ACTION
FAVORABLE TO IT.  FN10  IN 1905, HOWEVER, THE COMPANY FILED A SELECTION
LIST FOR OVER FIVE THOUSAND ACRES OF SURVEYED LANDS IN A GOVERNMENT
FOREST RESERVE IN MONTANA.  THE LIST WAS APPROVED AND THE SECRETARY OF
THE INTERIOR ISSUED PATENTS.  SUBSEQUENTLY, UPON DISCOVERING THAT THESE
LANDS WERE WITHIN THE FOREST RESERVE, THE UNITED STATES BROUGHT SUIT TO
CANCEL THE PATENTS.  THE CASE REACHED THIS COURT,  FN11  WHICH HELD
THAT THE ACT OF 1864, AND THE RESOLUTION OF 1870, EMBODIED AN OFFER
THAT, IF THE COMPANY WOULD CONSTRUCT AND OPERATE THE RAILROAD, IT
SHOULD RECEIVE THE GRANTED LANDS; THAT THIS OFFER HAD RIPENED INTO A
CONTRACT BY THE COMPANY'S ACCEPTANCE AND PERFORMANCE; THAT THE PROMISE
OF INDEMNITY FOR GRANTED LANDS NOT AVAILABLE TO THE COMPANY WAS A
VESTED RIGHT PROTECTED FROM DESTRUCTION; THAT, THOUGH THE LANDS IN THE
INDEMNITY BELTS WERE OPEN TO ACQUISITION BY SETTLERS BEFORE SURVEY,
THEY WERE OPEN TO SELECTION BY THE COMPANY ONLY AFTER SURVEY; AND,
FINALLY, THAT WITHDRAWALS OF INDEMNITY LANDS FOR GOVERNMENTAL PURPOSES
WERE INVALID UNLESS, AT THE TIME OF WITHDRAWAL, THERE REMAINED
NONMINERAL LANDS AVAILABLE FOR SELECTION SUFFICIENT TO SATISFY PRIOR
LOSSES TO THE COMPANY FROM THE GRANT.  THE MEASURE OF THE GRANT WAS
HELD TO BE THE AGGREGATE OF THE ODD-NUMBERED SECTIONS WITHIN THE PLACE
LIMITS, SUBJECT TO CERTAIN DEDUCTIONS NOT HERE MATERIAL.  ALTHOUGH A
STIPULATION HAD BEEN FILED AS TO THE MEASURE OF THE GRANT, THE COURT
HELD THAT, SINCE THE EVIDENCE DID NOT DISCLOSE THAT CERTAIN NECESSARY
DEDUCTIONS FROM THE GRANT HAD BEEN MADE TO ASCERTAIN THE NET AMOUNT OF
LAND TO WHICH THE COMPANY WAS ENTITLED, THE CASE WAS NOT RIPE FOR
JUDGMENT.  ACCORDINGLY THE CAUSE WAS REMANDED FOR A DETERMINATION OF
THE ALLEGED DEFICIENCY IN THE GRANT AND FOR FURTHER PROCEEDINGS
DEPENDENT UPON SUCH DETERMINATION. 

THE DEPARTMENT OF AGRICULTURE, WHICH WAS CHARGED WITH THE
ADMINISTRATION OF THE FOREST RESERVES, REALIZED THAT IF THE COMPANY'S
CLAIMS AS TO THE DEFICIENCY IN THE GRANT, WITH CONSEQUENT RIGHT OF
SELECTION OF WITHDRAWN LANDS AS INDEMNITY, WERE SUSTAINED, MUCH OF THE
LAND IN THE FOREST RESERVES WOULD BE DIVERTED FROM THE PURPOSE INTENDED
BY THEIR RESERVATION.  THE FORESTER OF THE UNITED STATES CALLED THE
SITUATION TO THE ATTENTION OF THE SECRETARY OF THE INTERIOR AND
SUGGESTED THAT THE LATTER SHOULD INVESTIGATE A NUMBER OF QUESTIONS
AFFECTING THE COMPANY'S CLAIMS.  THE LAND OFFICE, WITH THE COOPERATION
OF THE COMPANY, UNDERTOOK AN ADJUSTMENT OF THE GRANT AND A TENTATIVE
ADJUSTMENT WAS PREPARED.  THE FORESTER RAISED MANY OBJECTIONS. 
ULTIMATELY THE SECRETARY OF AGRICULTURE, AND THE SECRETARY OF THE
INTERIOR, CALLED THE SITUATION TO THE ATTENTION OF THE PRESIDENT AND HE
AND THEY COMMUNICATED WITH CONGRESS.  AS A RESULT, THAT BODY ADOPTED A
JOINT RESOLUTION ON JUNE 5, 1924,  FN12  DIRECTING THE SECRETARY OF THE
INTERIOR TO WITHHOLD APPROVAL OF ANY ADJUSTMENT OF THE COMPANY'S LAND
GRANTS AND TO WITHHOLD THE ISSUE OF FURTHER PATENTS; AND APPOINTING A
JOINT COMMITTEE TO MAKE AN INVESTIGATION OF THE GRANTS AND TO REPORT
ITS CONCLUSIONS AND RECOMMENDATIONS TO CONGRESS.  THIS COMMITTEE HELD
PROTRACTED HEARINGS, AT WHICH THE GOVERNMENT DEPARTMENTS AND THE
COMPANY WERE REPRESENTED, AND PRESENTED EVIDENCE AMOUNTING TO OVER FIVE
THOUSAND PRINTED PAGES. 

IN APRIL 1929 THE COMMITTEE RENDERED ITS REPORTS  FN13  RECOMMENDING
PASSAGE OF A BILL AUTHORIZING THE INSTITUTION OF PROCEEDINGS BY THE
ATTORNEY GENERAL TO PROCURE "A FINAL AND COMPLETE DETERMINATION OF THE
RESPECTIVE RIGHTS OF THE UNITED STATES AND THE NORTHERN PACIFIC RAILWAY
CO. TO THE END THAT THE GRANTS SHALL BE FINALLY ADJUSTED AND THE
INTERESTS OF THE UNITED STATES AND THE GRANTEE SHALL BE FULLY
PROTECTED."  THE RESULT WAS THE ACT OF JUNE 25, 1929.  FN14 THE TITLE
INDICATES THAT THE PURPOSE OF THE ACT WAS TO ALTER AND AMEND THE ACT OF
JULY 2, 1864, AND THE RESOLUTION OF MAY 31, 1870; "TO DECLARE FORFEITED
TO THE UNITED STATES CERTAIN CLAIMED RIGHTS ASSERTED" BY THE COMPANY;
AND "TO DIRECT THE INSTITUTION AND PROSECUTION OF PROCEEDINGS LOOKING
TO THE ADJUSTMENT OF THE GRANT." 

THE ACT RETAINS FOR THE UNITED STATES, FREE OF CLAIM BY THE COMPANY,
AND REMOVES FROM THE GRANT, ANY LANDS WITHIN THE INDEMNITY LIMITS
WHICH, ON JUNE 5, 1924, WERE WITHIN THE BOUNDARIES OF ANY NATIONAL
FOREST OR OTHER GOVERNMENT RESERVATION AND WHICH, ON THE DATE OF
WITHDRAWALS FOR GOVERNMENTAL PURPOSES, WOULD BE, OR WERE, AVAILABLE TO
THE COMPANY, BY INDEMNITY SELECTION OR OTHERWISE, IN SATISFACTION OF
ANY DEFICIENCY; AND DIRECTS THAT THE COMPANY SHALL HAVE FROM THE UNITED
STATES SUCH COMPENSATION, IF ANY, AS THE COURTS HOLD DUE FOR THE LOSS
OF SUCH LANDS.  (SEC. 1.) 

IT DECLARES THAT ALL UNSATISFIED INDEMNITY SELECTION RIGHTS, IF ANY
EXIST, CLAIMED BY THE COMPANY, ARE FORFEITED TO THE UNITED STATES. 
(SEC. 2.)  IT RESERVES THE RIGHT TO AMEND AND REPEAL THE CHARTER ACT
AND SUPPLEMENTARY RESOLUTION AND ASSERTS THE ADHERENCE OF CONGRESS TO
THE ORIGINAL POLICY WITH RESPECT TO THE COMPANY'S DISPOSITION OF
GRANTED LANDS.  RIGHT OF WAY LANDS AND THOSE IN GOOD FAITH EMPLOYED IN
THE OPERATION OF THE RAILROAD ARE EXCLUDED FROM THE DECLARED
FORFEITURE.  (SECS. 3, 4.) 

IT DIRECTS THE ATTORNEY GENERAL TO BRING SUIT TO REMOVE THE CLOUD OF
THE COMPANY'S CLAIMS UPON ANY LANDS OF THE UNITED STATES; TO DETERMINE
ALL CONTROVERSIES BETWEEN THE UNITED STATES AND THE COMPANY, AND TO
OBTAIN A FULL ACCOUNTING OF WHAT THE COMPANY MAY BE ENTITLED TO
RECOVER, AND WHAT THE UNITED STATES MAY BE ENTITLED TO RECOVER; TO FIND
AND DETERMINE THE EXTENT OF THE PERFORMANCE BY THE UNITED STATES, AND
BY THE COMPANY, OF THE TERMS OF THE GRANTING ACTS AND WHAT LANDS, IF
ANY, HAVE BEEN PATENTED OR CERTIFIED AS A RESULT OF FRAUD, MISTAKE OF
LAW OR FACT, OR LEGISLATIVE OR ADMINISTRATIVE MISAPPREHENSION; AND,
FINALLY, TO DETERMINE ALL QUESTIONS OF LAW AND FACT GERMANE TO A
COMPLETE ADJUDICATION OF THE RESPECTIVE RIGHTS UNDER THE GRANTING ACT
AND RESOLUTION, AND ALL OTHER QUESTIONS OF LAW AND FACT PRESENTED TO
THE COMMITTEE.  (SEC. 5.) 

IT LAYS DOWN, IN GENERAL TERMS, THE CONSIDERATIONS WHICH ARE TO
GOVERN IN THE MUTUAL ACCOUNT TO BE TAKEN BETWEEN THE UNITED STATES AND
THE COMPANY AND EMPOWERS THE COURT TO RENDER SUCH JUDGMENTS AND DECREES
AS LAW AND EQUITY MAY REQUIRE.  (SEC. 6.) 

IT ESTABLISHES THE VENUE FOR THE TRIAL OF THE SUIT, AND FOR APPEAL,
AND PROVIDES THAT A REASONABLE TIME SHALL BE FIXED BY THE COURT WITHIN
WHICH CONGRESS MAY ADOPT APPROPRIATE LEGISLATION TO MEET THE
REQUIREMENTS OF THE JUDGMENT.  (SEC. 7.) 

IT REQUIRES REPORTS TO CONGRESS FROM TIME TO TIME FROM THE ATTORNEY
GENERAL AS TO THE DECISIONS RENDERED IN THE PROCEEDING.  (SEC. 8.) 

IT PROVIDES FOR THE WITHHOLDING OF THE APPROVAL OF THE ADJUSTMENT OF
THE LAND GRANTS BY THE SECRETARY OF THE INTERIOR AND FOR THE
WITHHOLDING OF PATENTS UNTIL THE DETERMINATION OF THE LITIGATION. 
(SEC. 9.) 

PURSUANT TO THE ACT, THE ATTORNEY GENERAL CAUSED A BILL TO BE FILED,
ON BEHALF OF THE UNITED STATES, IN THE DISTRICT COURT FOR EASTERN
WASHINGTON.  THE COMPANY AND THE TRUSTEES UNDER CERTAIN OF ITS
MORTGAGES FILED ANSWERS AND MOTIONS TO DISMISS THE WHOLE BILL AND EACH
PARAGRAPH.  THE COURT REFERRED THE MOTIONS TO A SPECIAL MASTER.  HE
REPORTED THAT THEY SHOULD BE SUSTAINED AS TO CERTAIN PARAGRAPHS OF THE
BILL.  THE COURT OVERRULED EXCEPTIONS TO HIS REPORT.  THE CASE WAS THEN
AGAIN REFERRED TO THE MASTER BEFORE WHOM TESTIMONY WAS TAKEN UPON THE
ISSUES RAISED BY THE ANSWERS TO THOSE PORTIONS OF THE BILL WHICH HAD
NOT BEEN DISMISSED.  THE MASTER REPORTED THAT THE COMPANY SHOULD BE
AWARDED COMPENSATION FOR THE LOSS OF THE RIGHT OF INDEMNITY SELECTION
IN THE WITHDRAWN LANDS, AND SUBMITTED HIS CALCULATION OF THE ACREAGE
INVOLVED. 

THE COURT, AFTER SUSTAINING CERTAIN OF THE PLAINTIFF'S EXCEPTIONS AND
DISMISSING ALMOST ALL OF THE DEFENDANTS', FOUND THE COMPANY ENTITLED TO
PATENTS FOR CERTAIN LANDS OUTSIDE THE RESERVES AND TO COMPENSATION FOR
THE LOSS OF 1,453,061 ACRES OF LAND WITHIN THEM.  THE COURT RESERVED
FOR FUTURE DECISION THE CONTENTIONS OF THE MORTGAGEES THAT THEY ARE
PURCHASERS FOR VALUE WHOSE RIGHTS CANNOT BE AFFECTED BY THE
GOVERNMENT'S CLAIM AND ALSO ASCERTAINMENT OF THE AMOUNT TO BE AWARDED
TO THE COMPANY. 

AT THIS STAGE OF THE LITIGATION CONGRESS ADOPTED THE ACT OF MAY 22,
1936,  FN15  AUTHORIZING A DIRECT APPEAL FROM THE DECREE OF THE
DISTRICT COURT TO THIS COURT.  PURSUANT TO THAT STATUTE THE PRESENT
APPEALS BY THE UNITED STATES AND THE COMPANY WERE TAKEN.  AS TO MANY OF
THE ISSUES THE PARTIES HAVE ACCEPTED THE DECISION OF THE DISTRICT
COURT.  ERRORS ARE, HOWEVER, ASSIGNED TO THE DECREE BELOW BY BOTH THE
GOVERNMENT AND THE COMPANY. 

THE GOVERNMENT CONCEDES THAT THE ACT OF 1929, SUPRA, IS NOT A
DECLARATION OF FORFEITURE FOR BREACH OF CONDITIONS IMPOSED BY THE ACT
OF 1864 AND THE RESOLUTION OF 1870, BUT A REFERENCE TO THE COURTS OF
ALL QUESTIONS AS TO PERFORMANCE AND BREACH OF THE CONTRACTS CREATED BY
THE ACT AND THE RESOLUTION, TO THE END THAT THE RESPECTIVE RIGHTS AND
LIABILITIES OF THE PARTIES MAY BE DETERMINED AND ENFORCED.  THE COMPANY
ASSERTS THAT THE ACT OF 1929 IS AN EXERCISE OF THE POWER OF EMINENT
DOMAIN WHEREBY THE COMPANY IS DEPRIVED OF FURTHER RIGHT TO SELECT
INDEMNITY LANDS, AND IS TO BE PAID JUST COMPENSATION FOR THE RIGHT SO
TAKEN.  BUT THE COMPANY DOES NOT DENY THAT, IN ASCERTAINING THE AMOUNT
DUE IT, THE GOVERNMENT MAY OFFSET THE AMOUNT OF ANY CLAIMS IT MAY NOW
BE ENTITLED TO ASSERT BY REASON OF THE COMPANY'S BREACHES OF CONTRACT. 

THE GOVERNMENT URGES THAT THE BREACHES OF COVENANT BY THE COMPANY
HAVE BEEN SO SUBSTANTIAL THAT IT CANNOT CALL FOR FURTHER PERFORMANCE BY
THE UNITED STATES AND IS, THEREFORE, NOT ENTITLED TO FURTHER SELECTION
RIGHTS OR TO ANY MONEY COMPENSATION FOR THEIR ABROGATION.  RELIANCE IS
PLACED UPON THE FOLLOWING ALLEGED BREACHES. 

1.  THE ALLEGED FAILURE OF THE COMPANY TO OBTAIN BONA FIDE
SUBSCRIPTIONS TO ITS STOCK AND PAYMENTS THEREOF REQUIRED BY THE ACT OF
1864. 

OF ITS APPROVAL THE COMPANY SHALL OBTAIN BONA FIDE STOCK SUBSCRIPTIONS
TO THE AMOUNT OF TWO MILLION DOLLARS, WITH TEN PER CENT. PAID, THE ACT
SHALL BE NULL AND VOID. 

PARAGRAPH VI OF THE BILL ALLEGES THAT, ALTHOUGH WITHIN THE TWO YEARS
PRETENDED SUBSCRIPTIONS AND PAYMENTS WERE MADE, THE PRETENDED PAYMENTS
WERE SHAM AND A FRAUD UPON THE CORPORATION AND THE UNITED STATES; THAT
THE ACT THUS BECAME VOID AND THE COMPANY IS NOT ENTITLED TO ANY
COMPENSATION IN THE PRESENT SUIT. 

THE MASTER RECOMMENDED THAT THE MOTION TO DISMISS THIS PARAGRAPH
SHOULD BE GRANTED, AND THE DISTRICT COURT SO ORDERED. 

2.  THE ALLEGED FAILURE OF THE COMPANY TO PERFORM THE CONDITION OF
THE GRANT THAT IT COMPLETE THE WHOLE RAILROAD. 

RIGHT, AND PRIVILEGE HEREIN ARE SO MADE AND GIVEN TO, AND ACCEPTED BY,
SAID NORTHERN PACIFIC RAILROAD COMPANY, UPON AND SUBJECT TO THE
FOLLOWING CONDITIONS, NAMELY:  THAT THE SAID COMPANY SHALL COMMENCE THE
WORK ON SAID ROAD WITHIN TWO YEARS FROM THE APPROVAL OF THIS ACT BY THE
PRESIDENT, AND SHALL COMPLETE NOT LESS THAN FIFTY MILES PER YEAR AFTER
THE SECOND YEAR, AND SHALL CONSTRUCT, EQUIP, FURNISH, AND COMPLETE THE
WHOLE ROAD BY THE FOURTH DAY OF JULY, ANNO DOMINI EIGHTEEN HUNDRED AND
SEVENTY-SIX."  THE TIME FOR THE COMPLETION OF THE ROAD WAS EXTENDED BY
CONGRESS TO JULY 4, 1879.  IT IS UNDISPUTED THAT THE COMPANY NEVER
DEFINITELY LOCATED OR BUILT THAT PORTION OF ITS LINE EMBRACING THE TWO
HUNDRED AND TWENTY-FIVE MILES BETWEEN WALLULA AND PORTLAND.  INSTEAD,
IT MADE A CONTRACT FOR RUNNING RIGHTS OVER THE TRACKS OF THE OREGON
RAILWAY & NAVIGATION COMPANY. 

IN PARAGRAPHS XIV AND XXVI OF THE BILL THE UNITED STATES ALLEGES THAT
THE ROAD WAS NEVER COMPLETED.  THE MASTER RECOMMENDED THAT THE
COMPANY'S MOTION TO DISMISS THESE PARAGRAPHS BE GRANTED.  THE COURT SO
ORDERED. 

3.  THE CLAIM THAT DIVERSION OF FUNDS IN THE BUILDING OF BRANCH LINES
DISENTITLES THE COMPANY TO SELECT FURTHER LANDS. 

PARAGRAPH XIV OF THE BILL ALLEGES THAT, THROUGH VARIOUS DESCRIBED
CONTRACTS AND TRANSACTIONS, THE FUNDS OF THE NORTHERN PACIFIC RAILROAD
COMPANY WERE USED IN THE BUILDING OF BRANCH LINES WHICH WERE
UNJUSTIFIED AND UNPROFITABLE AND THAT FURTHER FUNDS WERE, UNDER
CONTRACT, ADVANCED TO SUCH BRANCH LINES TO KEEP THEM IN OPERATION.  IT
IS ALLEGED THAT THESE THINGS WERE DONE AT A TIME WHEN THE COMPANY HAD
NOT COMPLETED ITS MAIN LINE FROM WALLULA TO PORTLAND.  THE BILL CHARGES
THAT THE ILLEGAL AND FRAUDULENT CONDUCT IT DESCRIBES RESULTED IN THE
BRANCH LINES RECEIVING UNCONSCIONABLE AND ILLEGAL PROFITS AT THE COST
OF THE NORTHERN PACIFIC WHEN THE LATTER'S FUNDS SHOULD HAVE BEEN USED
TO COMPLETE ITS MAIN LINE, ALL IN VIOLATION OF THE CONTRACT BETWEEN THE
UNITED STATES AND THE NORTHERN PACIFIC CREATED BY THE ACT OF 1864 AND
THE RESOLUTION OF 1870.  THE MASTER RECOMMENDED THAT THIS PARAGRAPH BE
DISMISSED IN THE VIEW THAT THE TRANSACTIONS IN QUESTION DID NOT
DISENTITLE THE COMPANY TO EXERCISE INDEMNITY SELECTION RIGHTS IN
CONNECTION WITH THE GRANT SO FAR AS CONCERNS THE ROAD ACTUALLY
CONSTRUCTED.  THE COURT DISMISSED THE PARAGRAPH. 

4.  THE CLAIM THAT THE COMPANY FAILED TO PERFORM ITS CONTRACT BY
REFUSING TO OPEN LANDS GRANTED IT BY THE RESOLUTION OF 1870 TO
SETTLEMENT AND PRE-EMPTION AT $2.50 PER ACRE. 

CONSTRUCTION BONDS SHALL EVER BE ISSUED BY SAID COMPANY ON SAID ROAD,
OR MORTGAGE, OR LIEN MADE IN ANY WAY, EXCEPT BY THE CONSENT OF THE
CONGRESS OF THE UNITED STATES." 

AN ADDITIONAL LINE WAS AUTHORIZED BY THE JOINT RESOLUTION OF 1870 AND
A LAND GRANT MADE THEREFOR.  THE RESOLUTION EMPOWERED THE COMPANY TO
ISSUE BONDS IN AID OF CONSTRUCTION AND EQUIPMENT, AND TO "SECURE THE
SAME BY MORTGAGE ON ITS PROPERTY AND RIGHTS OF PROPERTY OF ALL KINDS
AND DESCRIPTIONS, REAL, PERSONAL, AND MIXED, INCLUDING ITS FRANCHISE AS
A CORPORATION."  THE RESOLUTION FURTHER PROVIDED "THAT ALL LANDS HEREBY
GRANTED TO SAID COMPANY WHICH SHALL NOT BE SOLD OR DISPOSED OF OR
REMAIN SUBJECT TO THE MORTGAGE BY THIS ACT AUTHORIZED, AT THE
EXPIRATION OF FIVE YEARS AFTER THE COMPLETION OF THE ENTIRE ROAD, SHALL
BE SUBJECT TO SETTLEMENT AND PRE-EMPTION LIKE OTHER LANDS, AT A PRICE
TO BE PAID TO SAID COMPANY NOT EXCEEDING TWO DOLLARS AND FIFTY CENTS
PER ACRE." 

PARAGRAPH XIII OF THE BILL REFERS TO THESE PROVISIONS OF THE JOINT
RESOLUTION AND ALLEGES THAT AMONG THE PLACE LANDS GRANTED THERE ARE
MANY MILLION ACRES THE QUANTITY AND DESCRIPTION OF WHICH ARE KNOWN ONLY
TO THE COMPANY, OR ITS PREDECESSOR, WHICH SHOULD HAVE BEEN OPENED TO
SETTLEMENT AND PRE-EMPTION WHEREAS THEY WERE, SUBSEQUENT TO JULY 4,
1884, (FIVE YEARS FROM THE DATE FINALLY FIXED FOR COMPLETION OF THE
ROAD), SOLD AT SUCH PRICES, AND ON SUCH CONDITIONS, AS TO THE COMPANY
SEEMED BEST, AND THAT THIS WAS A BREACH OF THE COMPANY'S CONTRACT WITH
THE UNITED STATES AND DEFEATED THE POLICY OF THE UNITED STATES.  THE
MASTER REACHED THE CONCLUSION THAT THE MOTION TO DISMISS PARAGRAPH XIII
SHOULD BE SUSTAINED AND THE COURT SO RULED.    THE GOVERNMENT INSISTS
THAT THE RESOLUTION REQUIRED THE COMPANY TO HOLD THE LANDS OPEN FOR
SETTLEMENT, AT THE PRICE AND IN PARCELS AS SPECIFIED, AFTER FIVE YEARS,
WHETHER MORTGAGED OR NOT; THAT IT FAILED TO DO SO, AND SOLD THE LANDS
AT HIGHER PRICES AND IN LARGER PARCELS THAN THE RESOLUTION REQUIRED,
AND THAT ITS BREACH OF COVENANT DEFEATS ITS RIGHT TO ANY AWARD.  THE
COMPANY CONTENDS THAT THE INTENT OF THE RESOLUTION WAS TO PERMIT IT TO
MORTGAGE ALL ITS PROPERTY RIGHTS; THAT IF, AT THE EXPIRATION OF FIVE
YEARS FROM THE COMPLETION OF THE ROAD, ANY OF THE GRANTED LANDS WERE
UNDISPOSED OF, OR WERE NOT SUBJECT TO MORTGAGE, THOSE LANDS WERE OPEN
TO PREEMPTION; THAT, WHETHER OR NOT THE EXISTENCE OF A MORTGAGE
PREVENTED SETTLEMENT OF THE LANDS, AFTER FIVE YEARS, THERE WAS NO DUTY
ON THE COMPANY TO DISPOSE OF THEM TO SETTLERS; AND THAT THE COMPANY HAS
NOT BROKEN ANY COVENANT IN RESPECT OF THE LANDS IN QUESTION. 

5.  THE CLAIM THAT UNAUTHORIZED WITHDRAWALS OF PLACE AND INDEMNITY
LANDS PRECLUDE ANY AWARD TO THE COMPANY. 

RAILROAD LINE, AS SAID COMPANY MAY ADOPT," AND FIXES THE DATE OF
PASSAGE OF TITLE TO THE COMPANY AS "THE TIME THE LINE OF SAID ROAD IS
DEFINITELY FIXED."  SECTION 6 PROVIDES THAT THE PRESIDENT SHALL CAUSE
THE PLACE LANDS TO BE SURVEYED "AFTER THE GENERAL ROUTE SHALL BE
FIXED." 

PURSUANT TO PRELIMINARY SURVEYS, THE RAILROAD COMPANY FILED WITH THE
SECRETARY OF THE INTERIOR A MAP SHOWING THE GENERAL ROUTE OF THE
PROPOSED LINE.  THEREUPON THE SECRETARY CAUSED PLACE LIMITS TO BE LAID
DOWN ON EITHER SIDE OF THE PROPOSED GENERAL ROUTE AND WITHDREW FROM
SALE OR ENTRY THE ODD-NUMBERED SECTIONS WITHIN THOSE LIMITS.  IN 1903
THIS COURT HELD THAT TITLE TO THE GRANTED PLACE LANDS DID NOT VEST IN
THE COMPANY UNTIL THE FILING OF A MAP OF DEFINITE LOCATION AND THAT,
CONSEQUENTLY, THE WITHDRAWAL OF THE LANDS BY THE SECRETARY PRIOR TO
THAT TIME AND COTERMINOUS WITH THE GENERAL ROUTE WAS UNAUTHORIZED. 
FN16 

AFTER THE COMPANY HAD FILED ITS MAPS OF DEFINITE LOCATION THE
SECRETARY MAPPED THE INDEMNITY LIMITS SPECIFIED BY THE ACT OF 1864 AND
WITHDREW THE LANDS COMPREHENDED WITHIN THOSE LIMITS FROM SALE OR
ENTRY.  IN 1888 THE THEN SECRETARY HELD THAT LAND WITHIN THE INDEMNITY
LIMITS WAS OPEN TO PRE-EMPTION UNDER THE HOMESTEAD LAWS AND THAT SUCH
PRE-EMPTION, EVEN BEFORE ACTUAL SURVEY OF THE LANDS, DEPRIVED THE
COMPANY OF THE RIGHT TO SELECT THE LANDS PRE-EMPTED.  THIS VIEW WAS
ADOPTED BY THIS COURT IN 1901.  FN17 

PARAGRAPH XXXII OF THE BILL RECITES THESE FACTS AND ALLEGES THAT, BY
VIRTUE OF THE WITHDRAWALS, THE RAILROAD COMPANY AND THE RAILWAY COMPANY
HAVE RECEIVED BENEFITS, LANDS, AND VALUES TO WHICH THEY WERE NOT
ENTITLED, TO THE INJURY OF THE UNITED STATES.  THE MASTER RECOMMENDED
THAT THE MOTION TO DISMISS THE PARAGRAPH BE SUSTAINED AND THE COURT SO
DECREED. 

6.  THE CLAIM THAT THE FORECLOSURES AND REORGANIZATIONS OF THE
RAILROAD AND ITS PROPERTY DISENTITLE THE COMPANY TO SELECT FURTHER
LANDS. 

THE RESOLUTION OF 1870 AUTHORIZED THE RAILROAD COMPANY TO ISSUE ITS
BONDS AND SECURE THE SAME BY MORTGAGE ON ITS PROPERTY OF EVERY KIND AND
PROVIDED THAT IF THE MORTGAGE AUTHORIZED SHOULD AT ANY TIME BE ENFORCED
BY FORECLOSURE OR OTHER LEGAL PROCEEDING, OR THE MORTGAGED LANDS
GRANTED BY THE RESOLUTION, OR ANY OF THEM, SHOULD BE SOLD BY THE
MORTGAGE TRUSTEES, UPON DEFAULT, "SUCH LANDS SHALL BE SOLD AT PUBLIC
SALE, AT PLACES WITHIN THE STATES AND TERRITORIES IN WHICH THEY SHALL
BE SITUATE, AFTER NOT LESS THAN SIXTY DAYS' PREVIOUS NOTICE, IN SINGLE
" 

THE BILL ALLEGES THAT TWO REORGANIZATIONS OCCURRED,  - ONE IN 1875
AND THE OTHER IN 1896.  AS RESPECTS THE FIRST, IT IS CHARGED THAT,
PURSUANT TO COURT ORDER, THE TRUSTEES OF THE MORTGAGE CONVEYED THE
MORTGAGED RAILROAD AND PROPERTY IN A BLOCK TO CERTAIN INDIVIDUALS WHO
THEREUPON RETRANSFERRED TO THE RAILROAD COMPANY UNDER AN ARRANGEMENT
WHEREBY MORTGAGE BONDHOLDERS RECEIVED PREFERRED STOCK IN LIEU OF THEIR
BONDS, SUCH PREFERRED STOCK TO BE REDEEMED FROM THE PROCEEDS OF THE
SALE OF THE COMPANY'S LANDS.  WITH RESPECT TO THE LATTER FORECLOSURE IT
IS ALLEGED THAT THE COMPANY, AFTER REORGANIZATION, CREATED A NUMBER OF
MORTGAGES WHICH WERE FORECLOSED AND THAT, IN THE COURSE OF THE
FORECLOSURE, SALES OF THE MORTGAGED LANDS, WHILE MADE IN THE RESPECTIVE
STATES AND TERRITORIES WHERE THEY LAY, AND ALTHOUGH MADE SECTION BY
NEW COMPANY, WHEREAS IT WAS THE INTENT OF CONGRESS THAT THEY SHOULD BE
SO SOLD AS TO GIVE INDIVIDUALS AN OPPORTUNITY TO ACQUIRE THEM. 

PARAGRAPHS IX, X, XI, XII, XVI AND XVIII DESCRIBE THE TRANSACTIONS IN
GREAT DETAIL AND CHARGE THAT WHAT WAS DONE WAS IN THE TEETH OF THE
POLICY OF THE UNITED STATES AND TO ITS INJURY.  THE MASTER RECOMMENDED
DISMISSAL OF THESE PARAGRAPHS AND THE COURT ADOPTED HIS
RECOMMENDATION.  THE UNITED STATES INSISTS THAT WHAT WAS DONE
CONSTITUTES A BREACH OF THE COMPANY'S OBLIGATION UNDER THE RESOLUTION
OF 1870 SO SUBSTANTIAL AS TO DISENTITLE IT TO ANY FURTHER PERFORMANCE
OF THE LAND GRANTS.  THE COMPANY ASSERTS THAT THE REORGANIZATION OF
1875 INVOLVED NO SALE OF THE MORTGAGED LANDS WITHIN THE CONTEMPLATION
OF THE STATUTE BUT A MERE DEVICE FOR REINVESTING THE COMPANY WITH ITS
LANDS, FREED OF THE MORTGAGE, AND THAT THE FORECLOSURE SALES MADE IN
THE REORGANIZATION OF 1896 WERE MADE IN STRICT AND EXACT ACCORDANCE
WITH THE PROVISIONS OF THE RESOLUTION OF 1870. 

THE GOVERNMENT ASSERTS THAT NONE OF THE PARAGRAPHS REFERRED TO ABOVE
SHOULD HAVE BEEN DISMISSED.  IT SAYS THAT EACH OF THE BREACHES CHARGED
WAS SO SUBSTANTIAL AS TO DISENTITLE THE COMPANY TO FURTHER PERFORMANCE
BY THE UNITED STATES.  BUT, IN ANY EVENT, IT SAYS THAT ALL OF THEM,
TAKEN TOGETHER, CERTAINLY REQUIRE THIS CONCLUSION.  THE COMPANY, ON THE
OTHER HAND, CONTENDS THAT, AS TO SOME OF THE MATTERS CHARGED, THE
ALLEGATIONS OF THE BILL DO NOT SHOW ANY BREACH, AND THAT, AS TO OTHERS,
IF A BREACH IS SUFFICIENTLY ALLEGED IT WAS NOT SUCH AS, IN THE LIGHT OF
THE HISTORY OF THE GRANTS AND THE PERFORMANCE RECEIVED BY THE UNITED
STATES, WOULD DISENTITLE THE COMPANY TO ALL FURTHER PERFORMANCE. 

IF THE GOVERNMENT'S POSITION IS SOUND THE DECREE BELOW SHOULD BE
REVERSED AND THE CAUSE REMANDED WITH INSTRUCTIONS TO ENTER A JUDGMENT
AGAINST THE COMPANY AND IN FAVOR OF THE UNITED STATES. 

THE JUSTICES WHO HEARD THIS CASE ARE EQUALLY DIVIDED IN OPINION UPON
THESE ISSUES.  NO OPINION IS EXPRESSED UPON THEM, AND THEY ARE
RESERVED, IN VIEW OF THE FACT THAT OUR RULINGS ON OTHER ISSUES MAY BE
DISPOSITIVE OF THE ENTIRE CONTROVERSY. 

THE GOVERNMENT PUTS FORWARD CERTAIN FURTHER CLAIMS WHICH, IF
SUSTAINED, WOULD PRECLUDE ANY RECOVERY BY THE COMPANY. 

7.  THE CLAIM THAT NO COMPENSATION SHOULD HAVE BEEN AWARDED BECAUSE
UNSURVEYED PUBLIC LANDS WERE AVAILABLE FOR SELECTION, AND THE COMPANY
FAILED TO SHOW THAT IT WOULD, OR COULD, HAVE SELECTED AND OBTAINED ALL
OF THE WITHDRAWN LANDS. 

THE DISTRICT COURT FOUND THAT, AT MARCH 1, 1898, JUST PRIOR TO THE
FIRST FOREST WITHDRAWAL, THE COMPANY HAD UNSATISFIED LOSSES OF
5,946,664 ACRES UNDER THE 1864 GRANT AND THAT THE TOTAL LANDS AVAILABLE
FOR SELECTION AT THAT DATE WERE 1,137,508 ACRES, LEAVING A DEFICIENCY
IN THE GRANT OF 4,809,156 ACRES; AND THE DEFICIENCY IN THE 1870 GRANT,
EXCLUDING AVAILABLE LAND IN SECOND INDEMNITY LIMITS, AT MARCH 1, 1898,
WAS 593,656 ACRES, AND THERE HAS BEEN, EVER SINCE, A DEFICIENCY IN
RESPECT OF THAT GRANT.  IN THESE FINDINGS THE COURT COMPUTED AS LANDS
AVAILABLE FOR SELECTION ONLY NON-MINERAL, SURVEYED, VACANT LAND.  THE
COMPANY ASSERTS THAT IN THIS THE COURT WAS RIGHT.  THE GOVERNMENT
INSISTS THAT VACANT UNSURVEYED LANDS WERE "AVAILABLE" AS INDEMNITY TO
THE COMPANY NOTWITHSTANDING THE CONCESSION THAT, AS LANDS SELECTED MUST
BE IDENTIFIED, THE COMPANY CANNOT SELECT THEM UNTIL THEY HAVE BEEN SO
IDENTIFIED BY SURVEY.  FN18  IT SAYS THE COMPANY FAILED TO SHOW THAT
THERE WERE NOT AMPLE UNSURVEYED LANDS WITHIN THE INDEMNITY LIMITS TO
SET OFF LOSSES IN THE PLACE LIMITS AT THE TIME OF THE WITHDRAWALS AND
ADDS THAT, INASMUCH AS HOMESTEADERS MIGHT, IN THE INTERIM, OBTAIN PRIOR
RIGHTS BY ACTUAL SETTLEMENT OF THESE UNSURVEYED LANDS,  FN19  IT IS A
MATTER OF PURE SPECULATION WHETHER THE COMPANY WOULD ULTIMATELY HAVE
OBTAINED ADEQUATE INDEMNITY EVEN IF UNSURVEYED LANDS HAD NOT BEEN
WITHDRAWN FOR FOREST RESERVES.  IT FURTHER CLAIMS THAT IF THE COURT
BELOW HAD TREATED UNSURVEYED LANDS AS AVAILABLE FOR INDEMNITY
SELECTION, THERE WOULD HAVE BEEN NO DEFICIENCY AT THE DATES OF
WITHDRAWAL. 

THESE CONTENTIONS CANNOT BE SUSTAINED. 

DECISION TURNS ON THE INQUIRY AS TO WHAT LANDS WERE AVAILABLE TO THE
COMPANY FOR SELECTION AT THE TIME OF THE RESPECTIVE GOVERNMENTAL
WITHDRAWALS. 

IT IS, OF COURSE, EVIDENT THAT THE COMPANY COULD NOT SELECT MINERAL
LANDS AS INDEMNITY.  IT FOLLOWS THAT ALL LANDS CLASSIFIED AS MINERAL
WERE EXCLUDED FROM SELECTION. 

BY SEC. 3 OF THE ACT OF 1864 IT IS PROVIDED THAT WHENEVER ANY OF THE
PLACE LANDS GRANTED TO THE COMPANY SHALL HAVE BEEN, PRIOR TO THE TIME
OF DEFINITE LOCATION OF THE ROAD, "GRANTED, SOLD, RESERVED, OCCUPIED BY
HOMESTEAD SETTLERS, OR PRE-EMPTED, OR OTHERWISE DISPOSED OF, OTHER
LANDS SHALL BE SELECTED BY SAID COMPANY IN LIEU THEREOF, UNDER THE
DIRECTION OF THE SECRETARY OF THE INTERIOR, IN ALTERNATE SECTIONS, AND
DESIGNATED BY ODD NUMBERS,  ...  " 

THE FACT THAT THE LANDS IN THE INDEMNITY LIMITS ARE, BEFORE SURVEY,
SUBJECT TO BE TAKEN BY PRE-EMPTORS AND SETTLERS, AND THUS ULTIMATE
SATISFACTION OF THE RAILROAD COMPANY MAY BE DEFEATED, DOES NOT JUSTIFY
THE GOVERNMENT ITSELF IN RESERVING LANDS CONTAINED WITHIN THOSE LIMITS
AND THUS RENDERING IMPOSSIBLE THE COMPANY'S OBTAINING THEM.  THIS WAS
DEFINITELY HELD IN THE FOREST RESERVE CASE.  FN20 

MUCH WAS SAID IN ARGUMENT AS TO THE MEANING OF THE PHRASE "LANDS
AVAILABLE AS INDEMNITY" AS USED IN THAT CASE.  IT SEEMS CLEAR THAT
UNSURVEYED LANDS ARE NOT AVAILABLE TO THE COMPANY UNDER THE ACT OF
1864.  IT WILL BE OBSERVED THAT THE COMPANY MUST SELECT INDEMNITY LANDS
UNDER THE DIRECTION OF THE SECRETARY OF THE INTERIOR.  THAT OFFICER HAS
INVARIABLY RULED THAT NO SELECTION CAN BE MADE OR APPROVED UNTIL THE
LANDS IN QUESTION ARE SURVEYED.  FN21 

THIS RULING WAS NECESSITATED BY THE VERY TERMS OF THE ACT OF 1864,
WHICH REQUIRES SELECTION OF ALTERNATE SECTIONS DESIGNATED BY ODD
NUMBERS.  OBVIOUSLY, UNTIL SURVEYED, NO ODD-NUMBERED SECTIONS COULD
EXIST.  UNSURVEYED LANDS ARE NOT PUBLIC LANDS.  FN22 

THE DECISION IN THE FOREST RESERVE CASE, SUPRA, DID NOT SUGGEST ANY
DIFFERENT VIEW.  THE ALLEGATION OF DEFICIENCY IN INDEMNITY LANDS IN
THAT CASE, FOUND IN THE STIPULATION OF THE PARTIES, WAS THAT THE LANDS
WERE THOSE ODD-NUMBERED SECTIONS WHICH THE DEFENDANT WAS ENTITLED TO
SELECT UNDER THE REGULATIONS OF THE LAND DEPARTMENT.  THIS COULD ONLY
MEAN, AND THE DECISION COULD ONLY HAVE GONE UPON THE VIEW THAT IT
MEANT, THAT THE SURVEYED LANDS WITHIN THE INDEMNITY LIMITS WERE
DEFICIENT TO MEET THE SELECTION RIGHTS OF THE RAILROAD COMPANY.  THE
CASE IS NOT AN AUTHORITY, AS THE GOVERNMENT CONTENDS, FOR THE
PROPOSITION THAT UNSURVEYED VACANT LANDS WITHIN THE INDEMNITY LIMITS
ARE TO BE CONSIDERED AS AVAILABLE TO THE COMPANY IN ASCERTAINING
WHETHER THE GOVERNMENT HAS RESERVED TO ITSELF LANDS AS TO WHICH THE
COMPANY HAS SELECTION RIGHTS.  UNDER THE DOCTRINE OF THE FOREST RESERVE
CASE THE CHALLENGED WITHDRAWALS FOR FOREST AND OTHER GOVERNMENTAL
PURPOSES LEFT THE INDEMNITY LANDS AVAILABLE TO THE COMPANY DEFICIENT TO
SATISFY ITS RIGHTS OF SELECTION. 

THE HOLDING WAS THAT THE WITHDRAWALS WERE VOID AND THE COMPANY'S
RIGHTS REMAINED AS IF THE WITHDRAWALS HAD NEVER BEEN MADE.  IF AND WHEN
ANY OF THE WITHDRAWN LANDS WERE SURVEYED THE COMPANY WAS ENTITLED TO
SELECT THEM, AS IT DID IN THE FOREST RESERVE CASE. 

IT WOULD APPEAR, HOWEVER, THAT THE GOVERNMENT'S CONTENTION IS MOOT AS
RESPECTS ALL BUT 23,364 ACRES OF LANDS IN IDAHO SECOND INDEMNITY LIMITS
FOR WHICH THE COMPANY WAS AWARDED COMPENSATION BY THE DISTRICT COURT'S
DECREE.  IF UNSURVEYED VACANT LANDS REMAINING WITHIN THE INDEMNITY
LIMITS AFTER A GOVERNMENT WITHDRAWAL ARE TO BE TREATED AS AVAILABLE TO
THE COMPANY FOR SELECTION, THEN THE GRANT WAS NOT DEFICIENT AS RESPECTS
SECOND INDEMNITY LIMITS IN IDAHO AND THE COMPANY SHOULD NOT HAVE BEEN
AWARDED COMPENSATION FOR THE ACREAGE MENTIONED. 

AS RESPECTS WITHDRAWALS FROM FIRST INDEMNITY LIMITS OF THE 1864
GRANT, AND WITHDRAWALS FROM THE LIMITS OF THE 1870 GRANT, IT APPEARS TO
BE UNDISPUTED THAT, OTHER CONTENTIONS OF THE GOVERNMENT, SUCH AS THAT
WITH RESPECT TO THE NONCOMPLETION OF THE ENTIRE ROAD, BEING LAID TO ONE
SIDE, THE WITHDRAWALS LEFT THE GRANTS DEFICIENT EVEN THOUGH UNSURVEYED
LANDS REMAINING WITHIN THE LIMITS AFTER THE WITHDRAWALS BE COUNTED AS
AVAILABLE TO THE COMPANY.  AND THE SAME CONCLUSION WOULD SEEM TO BE
REQUIRED RESPECTING LANDS WITHIN THE SECOND INDEMNITY LIMITS IN MONTANA
WITH THE EXCEPTION OF 4004.38 ACRES WITHDRAWN ON JULY 14, 1899. 

THUS THE ISSUE BECOMES, TO A LARGE EXTENT, MOOT BUT, AS RESPECTS
APPROXIMATELY 30,000 ACRES ABOVE REFERRED TO, WE THINK WHAT HAS BEEN
SAID ON THE SUBJECT OF THE AVAILABILITY OF UNSURVEYED LANDS SUSTAINS
THE DECREE OF THE DISTRICT COURT. 

THE GOVERNMENT, HOWEVER, ARGUES THAT EVEN THOUGH THE WITHDRAWALS FOR
GOVERNMENTAL PURPOSES CREATED SUCH A DEFICIENCY OF LANDS AVAILABLE FOR
SELECTION THAT, TO SATISFY THE GRANT, THE COMPANY WOULD HAVE BEEN
COMPELLED TO SELECT LANDS WITHIN THE WITHDRAWN RESERVES, NEVERTHELESS,
IN ORDER TO OBTAIN INDEMNITY FOR THE DEFICIENCY SO CREATED, THE COMPANY
IS BOUND TO PROVE THAT IT WOULD HAVE SELECTED LANDS WITHIN THE
RESERVES, AND WHAT LANDS IT WOULD HAVE SELECTED, BEFORE IT CAN CLAIM
COMPENSATION FROM THE GOVERNMENT FOR THE DEPRIVATION OF ITS RIGHT TO
SELECT.  A MAJORITY OF THE JUSTICES WHO HEARD THE CASE THINK THE
POSITION IS UNTENABLE.    UNDER THE RULING IN THE FOREST RESERVE CASE
IT WAS THE OBLIGATION OF THE GOVERNMENT TO REFRAIN FROM ANY ACTION
WHICH WOULD DEPRIVE THE COMPANY OF ITS RIGHT OF SELECTION IN ACCORDANCE
WITH THE TERMS OF THE GRANT.  WHEN THE UNITED STATES WITHDREW THE LANDS
FOR FOREST AND OTHER RESERVES IT SIGNIFIED ITS PURPOSE TO RETAIN THEM
FOR ITS OWN USE AND NOT TO ALLOW THE COMPANY OR ANYONE ELSE TO OBTAIN
THEM, ANY LAW OR CONTRACT TO THE CONTRARY NOTWITHSTANDING.  WE THINK
THE COMPANY'S RIGHT OF SELECTION, TO THE EXTENT OF THE DEFICIENCY IN
THE GRANT, REMAINED AVAILABLE AS TO THE WITHDRAWN LANDS, PROVIDED THE
LANDS SELECTED WERE SUCH AS ARE DEFINED IN THE GRANT.  THE GOVERNMENT'S
CONTENTION THAT NO ONE CAN SAY HOW SOON THE LANDS WOULD HAVE BEEN
SURVEYED AND SELECTED IF THEY HAD NOT BEEN WITHDRAWN AND RESERVED, OR,
IF THEY HAD REMAINED UNSURVEYED AND NOT WITHDRAWN, WHAT AREAS WOULD
HAVE BEEN TAKEN UP BY SETTLERS AND PREEMPTORS, DOES NOT AVAIL TO
ABROGATE OR QUALIFY THE COMPANY'S RIGHT TO EXERCISE ITS PRIVILEGE OF
SELECTION NOTWITHSTANDING THE WITHDRAWALS.  MOREOVER, THE ARGUMENT
IGNORES THE REPEAL OF THE PRE-EMPTION LAWS BY THE ACT OF MARCH 3,
1891.  FN23 

8.  THE CLAIM THAT THE COMPANY SHOULD BE CHARGED WITH 13,300,000
ACRES WRONGFULLY RECEIVED BECAUSE LYING WITHIN INDIAN RESERVATIONS. 

PARAGRAPH XXIX OF THE BILL ALLEGES THAT BY TREATIES OF SEPTEMBER 17,
1851, AND OCTOBER 17, 1855, FN24  THE UNITED STATES "RESERVED" CERTAIN
LANDS FOR INDIAN TRIBES.  THE PARAGRAPH ALLEGES THAT THE PLACE AND
INDEMNITY BELTS ESTABLISHED BY THE ACT OF 1864 CROSSED CERTAIN OF THE
LANDS RESERVED BY THE TREATIES, AND THAT, BY MISTAKE AND WITHOUT LAWFUL
AUTHORITY, THE COMPANY RECEIVED FROM THE UNITED STATES LANDS COMPRISED
IN THE RESERVATIONS AMOUNTING TO ABOUT 12,000,000 ACRES IN PLACE AND
FIRST INDEMNITY LIMITS AND 1,300,000 ACRES IN SECOND INDEMNITY LIMITS;
THAT FOR ALL OF THEM IT HAD OBTAINED PATENTS TO WHICH IT WAS NOT
ENTITLED, AS IT SHOULD HAVE KNOWN. 

IN ACCORDANCE WITH THE MASTER'S RECOMMENDATION, THE COURT BELOW
SUSTAINED THE MOTION TO DISMISS PARAGRAPH XXIX ON THE GROUND THAT THE
LANDS IN QUESTION WERE GRANTED TO THE COMPANY BY THE ACT OF 1864 AND
THE RESOLUTION OF 1870.  WE THINK THE COURT WAS RIGHT. 

BY AN ACT OF JUNE 30, 1834,  FN25  ALL LANDS LYING WEST OF THE
MISSISSIPPI RIVER, NOT WITHIN THE STATES OF MISSOURI AND LOUISIANA OR
THE TERRITORY OF ARKANSAS, WERE DESIGNATED AS INDIAN COUNTRY.  THE FEE
OF ALL THIS TERRITORY WAS IN THE UNITED STATES, SUBJECT TO THE INDIAN
RIGHT OF OCCUPANCY.  THE TREATIES OF 1851 AND 1855 DID NOT ALTER THE
STATUS OF THE LANDS DESCRIBED IN THEM.  THE PURPOSE OF THOSE TREATIES
WAS TO ESTABLISH PEACE AND AMITY BETWEEN WARRING INDIAN TRIBES INTER
SESE AND BETWEEN THE TRIBES AND THE UNITED STATES.  TO THIS END THE
COUNTRY OR TERRITORY OF EACH TRIBE WAS DESCRIBED AND THE TRIBES AGREED
TO RESPECT THE BOUNDARIES NAMED IN THE TREATIES.  NO ALTERATION IN THE
STATUS OF THE LANDS HAD OCCURRED UP TO THE DATE OF DEFINITE LOCATION OF
THE NORTHERN PACIFIC'S LINE.  ABOUT SEVEN HUNDRED MILES OF THE RAILROAD
TRAVERSED THE AREA EMBRACED IN THE TREATIES. 

BY SEC. 2 OF THE ACT OF 1864 IT WAS PROVIDED THAT "THE UNITED STATES
SHALL EXTINGUISH, AS RAPIDLY AS MAY BE CONSISTENT WITH PUBLIC POLICY
AND THE WELFARE OF THE SAID INDIANS, THE INDIAN TITLES TO ALL LANDS
FALLING UNDER THE OPERATION OF THIS ACT, AND ACQUIRED IN THE DONATION
TO THE (ROAD) NAMED IN THIS BILL."  THE GOVERNMENT NOW CONTENDS THAT
THIS SECTION IS INAPPLICABLE TO ANY BUT RIGHTOF-WAY LANDS LYING WITHIN
THE AREAS DESCRIBED BY THE TREATIES.  THE CONTENTION WAS NOT MADE OR
CONSIDERED BELOW, AND WE THINK, IF IT WERE OPEN HERE, THE PLAIN
LANGUAGE OF THE SECTION RENDERS IT UNTENABLE. 

STATES "HAVE FULL TITLE, NOT RESERVED, SOLD, GRANTED, OR OTHERWISE
APPROPRIATED, AND FREE FROM PREEMPTION, OR OTHER CLAIMS OR RIGHTS, AT
THE TIME THE LINE OF SAID ROAD IS DEFINITELY FIXED,  ...  "  THE
GOVERNMENT CONTENDS THAT THIS SECTION EXCLUDES LANDS EMBRACED WITHIN
THE TREATY LIMITS FOR THE REASON THAT THE TREATIES "RESERVE" ALL THE
LANDS DESCRIBED IN THEM FOR THE SIGNATORY INDIAN TRIBES.  WE THINK THE
CONTENTION IS UNSOUND. 

AS WE HAVE NOTED, THE TREATIES DID NOT CREATE TECHNICAL RESERVATIONS
AS HAVE MANY OTHER TREATIES AND ACTS OF CONGRESS.  THEY DID NOT SET
ASIDE A DEFINED TERRITORY FOR THE EXCLUSIVE USE OF A TRIBE NOR CONTAIN
THE USUAL PROVISIONS FOR AN INDIAN AGENT FOR SCHOOLS, ASSISTANCE IN
FARMING OPERATIONS, ETC.  THE COUNTRY DESCRIBED IN THE TREATY OF 1851
AMOUNTS TO ONE HUNDRED AND SIXTY-THREE MILLION ACRES, AND THAT
DESCRIBED IN THE TREATY OF 1855 TO THIRTYSEVEN MILLION ACRES.  IN THE
CASE OF ONE OF THE TRIBES, IF THE TREATY WERE CONSIDERED TO CREATE A
TECHNICAL RESERVATION IT WOULD HAVE ALLOTTED TO EACH MAN, WOMAN, AND
CHILD IN THE TRIBE MORE THAN EIGHTEEN SQUARE MILES. 

THE DEPARTMENT OF THE INTERIOR, AS IS EVIDENCED BY THE PATENTS
ISSUED, HAS CONSISTENTLY TREATED THE LANDS IN QUESTION AS INCLUDED IN
THE GRANT.  THIS COURT HAS REPEATEDLY PASSED UPON THE QUESTION; HAS
HELD THE LANDS WERE INDIAN COUNTRY, SUBJECT ONLY TO THE INDIANS' RIGHT
OF OCCUPANCY; WERE WITHIN THE GRANT MADE BY THE ACT OF 1864, AND THAT,
BY SEC. 2 OF THE ACT, THE UNITED STATES ASSUMED THE OBLIGATION OF
EXTINGUISHING THE INDIAN TITLE IN FAVOR OF THE COMPANY.  FN26 

WE COME NOW TO THE CONTENTIONS OF THE GOVERNMENT WHICH GO TO THE
QUANTUM OF THE AWARD. 

9.  THE CLAIM THAT THE COMPANY SHOULD BE CHARGED WITH APPROXIMATELY
1,000,000 ACRES RECEIVED AS THE RESULT OF ADOPTION OF AN UNNECESSARILY
CIRCUITOUS ROUTE. 

CONSTRUCT A CONTINUOUS RAILROAD LINE FROM A POINT ON LAKE SUPERIOR
"WESTERLY BY THE MOST ELIGIBLE RAILROAD ROUTE, AS SHALL BE DETERMINED
BY SAID COMPANY,  ...  TO SOME POINT ON PUGET'S SOUND, WITH A BRANCH,
VIA THE VALLEY OF THE COLUMBIA RIVER, TO A POINT AT OR NEAR PORTLAND,
...  "  THE RESOLUTION OF 1870 AUTHORIZED THE COMPANY TO CONSTRUCT ITS
MAIN LINE TO A POINT ON PUGET SOUND VIA THE VALLEY OF THE COLUMBIA
RIVER, WITH THE RIGHT TO LOCATE ITS BRANCH FROM A POINT ON THE MAIN
LINE, ACROSS THE CASCADE MOUNTAINS, TO PUGET SOUND. 

PARAGRAPH XXVI ALLEGED THAT THE COMPANY WAS REQUIRED TO CONSTRUCT ITS
RAILROAD TO THE WESTERN TERMINUS UPON THE MOST DIRECT AND PRACTICABLE
LINE WITHOUT UNNECESSARY DEVIATIONS BUT THAT, INSTEAD OF DOING SO, THE
COMPANY BUILT THE ROAD FROM LIND, WASHINGTON, TO ELLENSBURG,
WASHINGTON, BY AN UNNECESSARILY CIRCUITOUS ROUTE SOUTHWESTWARD TO PASCO
ON THE COLUMBIA RIVER AND THENCE NORTHWESTWARD VIA THE VALLEY OF THE
YAKIMA, WHEREAS IT COULD HAVE CONSTRUCTED THE LINE NEARLY DUE WESTWARD
FROM LIND TO ELLENSBURG AND HAVE SAVED ABOUT EIGHTY-TWO MILES; THAT, BY
REASON OF THIS UNNECESSARY CIRCUITY, APPROXIMATELY ONE MILLION, FOUR
HUNDRED THOUSAND ACRES WERE ADDED TO THE LANDS WITHIN THE LIMITS
DESCRIBED IN THE GRANT OVER AND ABOVE THE AMOUNT WHICH WOULD HAVE BEEN
INCLUDED HAD THE MORE DIRECT ROUTE BEEN FOLLOWED.  THE ALLEGATIONS OF
THE PARAGRAPH ARE THAT, AFTER FILING GENERAL ROUTE MAPS, THE COMPANY
ULTIMATELY FILED DEFINITE MAPS OF LOCATION AND THEREUPON THE DEPARTMENT
OF THE INTERIOR SURVEYED AND PATENTED TO IT LANDS LYING ALONG THE LINE;
THAT THIS WAS AN ERROR AS THE DEPARTMENT SHOULD HAVE REFUSED TO PATENT
PLACE LANDS OR ALLOW SELECTION OF INDEMNITY LANDS COTERMINOUS WITH THE
CIRCUITOUS ROUTE.  THE PARAGRAPH CONTAINS NO AVERMENT THAT THE ROUTE
WAS SELECTED BY THE COMPANY FRAUDULENTLY IN ORDER TO OBTAIN ADDITIONAL
LANDS OR THAT IT WAS NOT IN GOOD FAITH THOUGHT TO BE THE MOST ELIGIBLE
ROUTE.  THE PARAGRAPH REFERS TO THE FACT THAT SUBSEQUENTLY THE CHICAGO,
MILWAUKEE AND ST. PAUL RAILWAY LOCATED ITS LINE FROM LIND TO ELLENSBURG
BY THE MORE DIRECT ROUTE.  THE MASTER RECOMMENDED THAT THE MOTION TO
DISMISS THE PARAGRAPH BE SUSTAINED AND THE COURT SO ORDERED.  WE THINK
THERE WAS NO ERROR IN THIS DISPOSITION OF THE MATTER. 

THE JOINT RESOLUTION OF 1870 CALLED FOR THE MAIN LINE TO RUN VIA THE
VALLEY OF THE COLUMBIA RIVER TO PUGET SOUND WITH A BRANCH LINE FROM A
CONVENIENT POINT ON THE MAIN LINE ACROSS THE CASCADE MOUNTAINS TO PUGET
SOUND.  IN PURSUANCE OF THIS REQUIREMENT THE COMPANY FILED A MAP OF
DEFINITE LOCATION AND CONSTRUCTED ITS ROUTE BETWEEN SPOKANE AND WALLULA
ON THE COLUMBIA RIVER.  AT THAT POINT IT WAS ABLE TO MAKE A CONNECTION
WITH THE OREGON RAILWAY & NAVIGATION COMPANY.  IN 1880 IT, THEREFORE,
ENTERED INTO A CONTRACT FOR RUNNING RIGHTS OVER THE LINE OF THAT
RAILROAD AND HAS USED ITS LINE FOR TRAFFIC INTO PORTLAND.  IT WAS
NATURAL, IN THIS SITUATION, TO LAY OUT THE AUTHORIZED BRANCH LINE OVER
THE CASCADE MOUNTAINS FROM THE MAIN LINE AT PASCO.  MAPS OF THE LINE
FROM PASCO TO TACOMA WERE APPROVED BY THE SECRETARY OF THE INTERIOR
BETWEEN JUNE 1883 AND DECEMBER 1884.  INSPECTION REPORTS IN 1879 AND
1880, MADE TO THE SECRETARY OF THE INTERIOR, SHOW THAT THE DEPARTMENT
WAS FAMILIAR WITH THE LINE THE COMPANY WAS BUILDING. 

ON MARCH 3, 1893, CONGRESS RATIFIED AN AGREEMENT FOR THE PAYMENT TO
THE YAKIMA INDIANS FOR RIGHT OF WAY THROUGH THEIR RESERVATION PROVIDED
THE COMPANY SHOULD, WITHIN SIXTY DAYS, PAY THE NECESSARY MONEY THEREFOR
INTO THE TREASURY OF THE UNITED STATES.  FN27  THIS ACTION SHOWS THAT
CONGRESS WAS FULLY INFORMED OF THE ADOPTED ROUTE AND COOPERATED IN
MAKING ITS CONSTRUCTION FEASIBLE. 

THE MASTER AND THE COURT BELOW JUDICIALLY NOTICED THAT THE ROUTE VIA
THE YAKIMA VALLEY WAS A MUCH MORE ADVANTAGEOUS ONE IN RESPECT OF THE
COUNTRY TRAVERSED, AND THE PROBABLE AVAILABLE TRAFFIC, THAN THE MORE
DIRECT ROUTE BETWEEN LIND AND ELLENSBURG.  THE TOTAL POPULATION ALONG
THE LATTER IS SAID TO BE LESS THAN A THOUSAND PERSONS AND THE TRAFFIC
ORIGINATING THEREON PRACTICALLY NIL.  ON THE OTHER HAND, THE YAKIMA
VALLEY IS ONE OF THE MOST FERTILE AND PRODUCTIVE AGRICULTURAL SECTIONS
IN THE NORTHWEST. 

THE CIRCUITY IS NOT SUCH AS TO BE AN OBVIOUS EVASION OF THE TERMS OF
THE GRANT, AND IN THE ABSENCE OF ANY CHARGE OF FRAUD, IT MUST BE TAKEN
THAT THE DIRECTORS OF THE COMPANY CONSIDERED THE LINE LAID OUT THE MOST
ELIGIBLE ONE.  WE THINK THE ALLEGATIONS OF THE PARAGRAPH DO NOT SUPPORT
THE CONTENTION THAT THE COMPANY ILLEGALLY ACQUIRED PLACE AND INDEMNITY
LANDS CONTIGUOUS TO THIS PORTION OF ITS LINE. 

10.  THE CLAIM THAT THE COMPANY SHOULD HAVE BEEN CHARGED WITH
1,198,000 ACRES RECEIVED AS INDEMNITY IN THE SECOND INDEMNITY BELT IN
MONTANA AND SHOULD NOT HAVE BEEN AWARDED COMPENSATION FOR 170,000 ACRES
IN THE SAME BELT. 

UNDER THE ACT OF 1864 LOSSES OF LAND IN THE PLACE LIMITS COULD BE
SUPPLIED ONLY IN THE FIRST AND THE MINERAL INDEMNITY LIMITS.  THE
RESOLUTION OF 1870 ADDED A SECOND INDEMNITY BELT IN WHICH SELECTIONS
COULD BE MADE ONLY FOR LOSSES IN THE SAME STATE OR TERRITORY OCCURRING
THROUGH RESERVATION, PRE-EMPTION, OR OTHER DISPOSITION SUBSEQUENT TO
THE PASSAGE OF THE ACT OF 1864. 

AS HAS BEEN STATED UNDER HEADING 8, SUPRA, THE LAND OFFICE PROPERLY
TREATED THE LANDS WITHIN THE BOUNDARIES DESCRIBED BY THE TREATY OF 1851
FN28  AS AVAILABLE UNDER THE GRANT.  BY THE CROW TREATY OF 1868  FN29
A DISTINCT AND EXCLUSIVE RESERVATION FOR THAT TRIBE WAS CARVED OUT OF
THE LARGER TERRITORY DESIGNATED IN THE EARLIER DAYS AS THE CROW
COUNTRY.  THE LAND OFFICE TREATED THE LANDS THUS SPECIFICALLY RESERVED
AS LOST TO THE GRANT AND PERMITTED INDEMNITY SELECTIONS FROM THE SECOND
INDEMNITY BELT IN MONTANA, IN WHICH STATE THE LOSS OCCURRED. 

IT APPEARS THAT, BY VIRTUE OF WITHDRAWALS CHIEFLY FOR FOREST RESERVES
IN MONTANA, THE COMPANY HAS BEEN DEPRIVED OF THE RIGHT TO SELECT ABOUT
170,000 ACRES OF LIEU LANDS, ABOUT 64,000 ACRES OF WHICH LOSSES WERE
DUE TO THE CREATION OF THE CROW RESERVATION.  IN ITS COMPUTATION OF THE
LANDS FOR WHICH THE COMPANY WAS ENTITLED TO INDEMNITY AND COMPENSATION
IN THIS SUIT THE COURT BELOW INCLUDED THIS ENTIRE ACREAGE. 

THE GOVERNMENT CONTENDS THAT THE COURT SHOULD HAVE CHARGED THE
COMPANY WITH THE INDEMNITY LANDS RECEIVED IN SECOND INDEMNITY LIMITS IN
MONTANA DUE TO ALLEGED LOSSES FROM THE CREATION OF THE CROW RESERVATION
AND THAT IT SHOULD NOT HAVE AWARDED ANY FURTHER COMPENSATION FOR THE
LOSS OF SELECTION RIGHTS IN THAT BELT RESULTING FROM THE CREATION OF
THE CROW RESERVATION, OR OTHERWISE, AS THE COMPANY HAD ALREADY RECEIVED
MORE THAN WAS PROPER.  WE THINK THE POSITION CANNOT BE MAINTAINED. 

AS SHOWN UNDER HEADING 8, SUPRA, NO LANDS WERE REMOVED FROM THE
OPERATION OF THE GRANT BY THE TREATIES OF 1851 AND 1855.  ON THE OTHER
HAND THE CREATION OF THE CROW RESERVATION - A TYPICAL INDIAN
RESERVATION - IN 1868, REMOVED THE LANDS IN THAT RESERVATION FROM THE
GRANT WITHIN THE INTENT AND MEANING OF THE ACT OF 1864, AS SUPPLEMENTED
BY THE JOINT RESOLUTION OF 1870, AND CONFERRED THE RIGHT TO INDEMNITY
SELECTIONS FROM THE SECOND INDEMNITY BELT WITHIN THE SAME STATE. 

11.  THE CREDIT TO THE COMPANY FOR LANDS WITHIN THE NORTHERN CHEYENNE
INDIAN RESERVATION. 

THE COURT BELOW, IN ITS AWARD, TREATED THE COMPANY AS ENTITLED TO
SELECT INDEMNITY LANDS IN FIRST AND SECOND INDEMNITY LIMITS WHERE THESE
LIMITS LAY WITHIN THE NORTHERN CHEYENNE INDIAN RESERVATION IN MONTANA. 
THE AREA IN QUESTION WAS PART OF THE CROW COUNTRY RECOGNIZED BY THE
TREATY OF SEPTEMBER 17, 1851.  FN30  WHEN, IN 1868, THE CROW
RESERVATION WAS CREATED, THE CROW NATION CEDED ALL ITS RIGHT AND TITLE
IN OTHER LANDS EMBRACED WITHIN THE TREATY AREA TO THE UNITED STATES. 
BY AN EXECUTIVE ORDER OF MARCH 19, 1900, THE LANDS IN QUESTION BECAME
PART OF THE NORTHERN CHEYENNE RESERVATION.  THIS ACTION WAS CONFIRMED
BY CONGRESS JUNE 3, 1926,  FN31  WHICH DECLARED THAT THE LANDS WERE THE
PROPERTY OF THE NORTHERN CHEYENNES, AUTHORIZED ALLOTMENTS, ETC.    THE
GOVERNMENT CONTENDS THAT THESE LANDS WERE NOT, ON JUNE 5, 1924 - THE
PIVOTAL DATE MENTIONED IN THE ACT OF JUNE 25, 1929 - "EMBRACED WITHIN
THE EXTERIOR BOUNDARIES OF ANY NATIONAL FOREST OR OTHER GOVERNMENT
RESERVATION." 

WE THINK THAT UNDER THE TERMS OF THE ACT THESE LANDS HAD BEEN
WITHDRAWN AS A "GOVERNMENT RESERVATION" AND FOR "GOVERNMENTAL
PURPOSES"; AND THE ACT WHICH AUTHORIZED THIS SUIT CONTEMPLATED THAT
COMPENSATION SHOULD BE AWARDED FOR LANDS SO WITHDRAWN, WHICH, BUT FOR
THE WITHDRAWAL, WOULD HAVE BEEN AVAILABLE TO THE COMPANY AS INDEMNITY. 

12.  THE AWARD FOR LAND WITHIN THE RESERVATIONS ON WHICH HOMESTEADERS
FILED PRIOR TO JUNE 5, 1924, AND FOR WHICH THEY RECEIVED PATENTS AFTER
JUNE 5, 1924. 

AFTER THE WITHDRAWALS HAD BEEN MADE HOMESTEADERS FILED ON CERTAIN OF
THE LANDS WITHIN THE FOREST RESERVES.  THESE FILINGS WERE PRIOR TO JUNE
5, 1924.  SUBSEQUENT TO THAT DATE PATENTS WERE ISSUED UNDER THE FOREST
HOMESTEAD LAWS.  THE COURT BELOW, WE THINK, PROPERLY TREATED THESE
LANDS AS HAVING BEEN AVAILABLE FOR INDEMNITY SELECTION BY THE COMPANY
AT THE DATE OF WITHDRAWAL AND AWARDED THE COMPANY COMPENSATION FOR THE
ABROGATION OF ITS RIGHT TO SELECT THEM.  THE GOVERNMENT ASSERTS THAT
THIS WAS ERROR, IN THE VIEW THAT THE ACT OF 1929 AWARDED COMPENSATION
ONLY FOR THOSE LANDS WHICH WOULD BE, OR WERE, AVAILABLE FOR SELECTION
ON JUNE 5, 1924.  THE ACT, HOWEVER, DOES NOT SO PROVIDE.  IT AWARDS
INDEMNITY FOR LANDS WHICH, ON JUNE 5, 1924, WERE EMBRACED IN ANY
RESERVATION, AND "WHICH, IN THE EVENT OF A DEFICIENCY IN THE SAID LAND
GRANTS TO THE NORTHERN PACIFIC RAILROAD COMPANY UPON THE DATES OF THE
WITHDRAWALS OF THE SAID INDEMNITY LANDS FOR GOVERNMENTAL PURPOSES,
WOULD BE, OR WERE," AVAILABLE FOR SELECTION. 

13.  THE CLAIM THAT, AS TO MORE THAN A MILLION ACRES, THE AWARD RESTS
UPON A FRAUDULENT MINERAL CLASSIFICATION WHICH WILL NOT SUPPORT
INDEMNITY SELECTION RIGHTS. 

EXCLUDED MINERAL LANDS FROM THE GRANT.  THE SECTION PROVIDES THAT IRON
OR COAL LANDS ARE NOT TO BE CLASSED AS MINERAL.  IN LIEU OF MINERAL
LANDS THE COMPANY IS GIVEN THE RIGHT TO SELECT A LIKE QUANTITY OF
"UNOCCUPIED AND UNAPPROPRIATED AGRICULTURAL LANDS, IN ODD NUMBERED
THEREOF,  ...  " 

ONE OF THE CONTENTIONS STRONGLY PRESSED BY THE DEPARTMENT OF
AGRICULTURE BEFORE THE JOINT COMMITTEE ACTING UNDER THE RESOLUTION OF
JUNE 5, 1924, WAS THAT, DUE TO THE COMPANY'S FRAUD, GREAT QUANTITIES OF
PLACE LANDS HAD BEEN IMPROPERLY CLASSIFIED AS MINERAL, WITH THE RESULT
THAT THE COMPANY HAD BEEN ALLOWED TO SELECT, AND HAD RECEIVED PATENTS
FOR, OVER A MILLION ACRES OF LAND IN LIEU OF THOSE SO CLASSIFIED.  THE
COMPANY RESISTED THIS CONTENTION. 

BY THE ACT OF JUNE 25, 1929, THIS MATTER WAS REMITTED TO THE COURTS
FOR ADJUDICATION.  SECTION 5 DIRECTS THAT IN THE JUDICIAL PROCEEDINGS
CONTEMPLATED THERE SHALL BE PRESENTED, AND THE COURT SHALL CONSIDER,
MAKE FINDINGS RELATING TO, AND DETERMINE, TO WHAT EXTENT THE TERMS,
CONDITIONS AND COVENANTS OF THE GRANTING ACTS HAVE BEEN PERFORMED BY
THE UNITED STATES AND THE COMPANY, INCLUDING THE QUESTION WHAT LANDS,
IF ANY, HAVE BEEN WRONGFULLY OR ERRONEOUSLY PATENTED OR CERTIFIED AS
THE RESULT OF FRAUD.  SECTION 6 REQUIRES THAT, IN FIXING THE AMOUNT OF
COMPENSATION TO BE RECEIVED BY THE COMPANY ON ACCOUNT OF THE RETENTION
BY THE UNITED STATES OF INDEMNITY LANDS FOR NATIONAL FORESTS OR
GOVERNMENT RESERVES, THE COURT SHALL DETERMINE WHAT QUANTITIES IN LANDS
OR VALUES THE COMPANY AND ITS PREDECESSORS HAVE RECEIVED AS A RESULT OF
FRAUD AND THAT SUCH EXCESS LANDS AND VALUES, IF ANY, SHALL BE CHARGED
AGAINST THE COMPANY IN THE JUDGMENT OF THE COURT. 

PARAGRAPH XXVIII OF THE COMPLAINT REFERS TO THE ACT OF FEBRUARY 26,
1895,  FN32  PROVIDING FOR THE EXAMINATION AND CLASSIFICATION, AS
MINERAL OR NONMINERAL, OF PLACE AND INDEMNITY LANDS WITHIN FOUR LAND
DISTRICTS IN IDAHO AND MONTANA; RECITES THE APPOINTMENT AND FUNCTIONING
OF THE COMMISSIONS AUTHORIZED BY THE ACT; ALLEGES THAT THE
COMMISSIONERS UNDERTOOK TO CLASSIFY APPROXIMATELY ELEVEN MILLION FIVE
HUNDRED THOUSAND ACRES OF LAND, AND PRETENDED TO CLASSIFY THE SAME;
FILED THEIR REPORTS WHICH, WITH MINOR EXCEPTIONS, WERE APPROVED BY THE
SECRETARY OF THE INTERIOR; ASSERTS THAT 3,782,377 ACRES, MORE OR LESS,
WERE CLASSIFIED AS MINERAL, AND THAT THE COMPANY, AND ITS PREDECESSOR
IN INTEREST, MADE MINERAL LIEU SELECTIONS TOTALING 1,330,762 ACRES,
MORE OR LESS, AND RECEIVED PATENTS THEREFOR; ALLEGES THAT THE COMPANY
IS CLAIMING ADDITIONAL INDEMNITY LANDS OF APPROXIMATELY 2,451,615 ACRES
IN LIEU OF LANDS CLASSIFIED AS MINERAL; AND CHARGES THAT THE COMPANY,
AND ITS PREDECESSOR, WERE GUILTY OF FRAUDULENT AND COLLUSIVE PRACTICES
WHEREBY THE COMMISSIONERS WERE PERSUADED TO CLASSIFY, AS MINERAL, LANDS
OF LITTLE VALUE, SO THAT THE RAILROAD COULD SELECT MORE VALUABLE LANDS
IN LIEU THEREOF, AND THAT THE LANDS SO SELECTED AND PATENTED TO THE
COMPANY WERE OF A VALUE IN EXCESS OF THE ENTIRE 3,782,377 ACRES, MORE
OR LESS, OF LANDS FRAUDULENTLY CLASSIFIED AS MINERAL. 

THE COMPANY MOVED TO DISMISS THE PARAGRAPH AND IN ITS ANSWER DENIED
THE ALLEGATIONS.  THE MASTER RECOMMENDED THAT THE MOTION BE SUSTAINED
AND THE COURT SO ORDERED.  IN THIS WE THINK THERE WAS ERROR. 

THE MASTER, AFTER CONSIDERING THE FACTS SET OUT, AND MATTERS OF WHICH
HE TOOK JUDICIAL NOTICE, STATED THAT HE WOULD HAVE NO DIFFICULTY IN
OVERRULING THE MOTION TO DISMISS HAD IT NOT BEEN FOR THE POSITION TAKEN
BY THE GOVERNMENT IN ARGUMENT.  THE MASTER STATES THAT A GOODLY PORTION
OF THE NEARLY FOUR MILLION ACRES CLASSIFIED AS MINERAL CONSISTED OF
LANDS WITHIN THE FOREST RESERVES, WHICH BY THE ACT OF JUNE 25, 1929,
THE GOVERNMENT SIGNIFIED ITS INTENTION TO RETAIN, THAT STILL OTHER
LANDS SO CLASSIFIED HAD BEEN PATENTED TO CLAIMANTS AS MINERAL CLAIMS,
AND THAT THE GOVERNMENT HAD SOLD MUCH VALUABLE TIMBER FROM STILL OTHER
OF SUCH LANDS.  THE MASTER SAYS THAT IN THE LIGHT OF THESE FACTS HE
INQUIRED OF COUNSEL WHETHER THE GOVERNMENT DESIRED A RECLASSIFICATION
BY REASON OF THE ALLEGED FRAUD AND THAT THE REPLY WAS IN THE NEGATIVE. 
HE REPORTS THAT COUNSEL CONTENDED THE GOVERNMENT'S PLEADING WAS MEANT
TO MEET AND DEFEAT THE COMPANY'S CLAIM, ON THE THEORY THAT, AS TO THE
LANDS CLASSIFIED AS MINERAL AND THE CLAIMS TO LIEU LANDS THEREFOR, THE
COMPANY MUST BE TREATED AS A PLAINTIFF, AND, AS PARAGRAPH XXVIII
DISCLOSED THAT THE COMPANY DID NOT HAVE CLEAN HANDS, IT COULD NOT
MAINTAIN ITS CLAIM.  THE MASTER OVERRULED THIS CONTENTION, HOLDING THAT
THE COMPANY WAS, IN THIS CASE, A DEFENDANT AND THAT THE DOCTRINE OF
CLEAN HANDS DID NOT APPLY TO A DEFENDANT IN EQUITY. 

WHATEVER GLOSS GOVERNMENT COUNSEL MAY HAVE PUT UPON THE PARAGRAPH, WE
THINK THE MASTER AND THE COURT BELOW WERE BOUND TO GIVE FULL EFFECT TO
THE PLEADING AND THAT THE MASTER WAS RIGHT IN HIS ORIGINAL VIEW THAT
THE FACTS SET UP, AND THE ISSUES MADE BY THE ANSWER, REQUIRED A TRIAL;
AND, IF THE GOVERNMENT SUCCEEDS IN MAINTAINING THE TRUTH OF ITS
ALLEGATIONS, THE COMPANY SHOULD BE CHARGED WITH LANDS OR VALUES
OBTAINED AS MINERAL INDEMNITY THROUGH THE FRAUD OF ITS AGENTS AND THEIR
COLLUSION WITH THE COMMISSIONERS. 

ALTHOUGH IT IS ALLEGED, AND THE MASTER FOUND, THAT IT WAS IMPOSSIBLE
IN THE TIME ALLOWED BY CONGRESS FOR THE COMMISSIONERS TO MAKE SUCH A
SURVEY AND CLASSIFICATION AS THE LEGISLATION CONTEMPLATED, WE THINK THE
REPORTS AND THE SECRETARY'S APPROVAL AND ACCEPTANCE THEREOF, CREATE A
PRIMA FACIE SHOWING IN FAVOR OF THE CLASSIFICATION AND THE COMPANY'S
SELECTION OF INDEMNITY LANDS. 

THE UNITED STATES PLEADED THE FRAUD WHICH IT SAYS RENDERS THE
CLASSIFICATION, AND THE ACTIONS CONSEQUENT UPON IT, A NULLITY.  WE
THINK IT NECESSARILY HAS THE BURDEN OF PROOF TO SUSTAIN ITS PLEADING. 
IT IS NOT BARRED BY LACHES OR ESTOPPEL FROM ASSERTING AND PROVING THE
ALLEGED FRAUD, AND FROM HAVING THE COMPANY CHARGED WITH THE LANDS OR
VALUES RECEIVED AS A RESULT OF IT. 

THE CASE MUST GO BACK FOR A TRIAL OF THE ISSUES MADE BY PARAGRAPH
XXVIII OF THE COMPLAINT AND THE ANSWER THERETO.  IT MAY BE THAT ON THE
TRIAL THE GOVERNMENT'S EVIDENCE WILL PROVE FRAUD ON THE PART OF THE
COMPANY OF SUCH A CHARACTER AND EXTENT AS WOULD DISENTITLE THE LATTER
TO ANY AWARD EVEN THOUGH THE FRAUD DOES NOT EXTEND TO AN ACREAGE EQUAL
IN EXTENT TO THAT OF THE SELECTION RIGHTS TAKEN AWAY BY THE ACT OF
1929. 

14.  THE MEANING OF THE PHRASE "AGRICULTURAL LANDS" IN THE PROVISION
FOR SELECTION IN LIEU OF EXCEPTED MINERAL LANDS. 

IN COMPUTING THE DEFICIENCY OF LANDS AVAILABLE FOR INDEMNITY
SELECTION THE DISTRICT COURT INCLUDED THE NEARLY TWO MILLION ACRES OF
MINERAL LOSSES AS TO WHICH INDEMNITY SELECTION HAD NOT BEEN MADE AT THE
TIME OF THE WITHDRAWALS AND TREATED THE WITHDRAWN LANDS AS AVAILABLE
FOR SELECTION IN RESPECT OF MINERAL LOSSES.  THE GOVERNMENT INSISTS
THAT THIS WAS ERROR BECAUSE MUCH OF THE WITHDRAWN LAND IS NOT
AGRICULTURAL AND IS NOT, THEREFORE, AVAILABLE AS INDEMNITY FOR MINERAL
LOSSES.  THE COMPANY, ON THE OTHER HAND, ASSERTS THAT IN THE GRANTING
ACT THE WORD "AGRICULTURAL" IS NOT USED IN ITS ORDINARY SENSE OF
TILLABLE OR CULTIVABLE BUT AS MEANING MERELY LANDS NOT MINERAL.  IT
BASES THIS CONTENTION LARGELY UPON THE ALLEGED ADMINISTRATIVE
CONSTRUCTION AND PRACTICE OF THE DEPARTMENT OF THE INTERIOR WHICH, SO
IT CLAIMS, HAS TREATED THE WORD "AGRICULTURAL" AS A TERM OF
CLASSIFICATION AND NOT ONE OF STRICT DEFINITION.  FN33  THIS WAS THE
VIEW TAKEN BY THE MASTER AND THE DISTRICT COURT. 

RAILROAD, EMPLOYS THREE DESCRIPTIONS OF PUBLIC LANDS.  THE PLACE LAND
GRANTED IS DENOMINATED "PUBLIC LAND, NOT MINERAL"; THE LIEU LANDS WHICH
MAY BE SELECTED TO MAKE UP LOSSES IN THE PLACE LANDS ARE REFERRED TO AS
"OTHER LANDS"; THE MINERAL LIEU LANDS ARE DESIGNATED AS "UNOCCUPIED AND
UNAPPROPRIATED AGRICULTURAL LANDS." 

THE ACT SEEMS TO HAVE SERVED AS A MODEL FOR OTHER RAILROAD GRANTS
MADE SHORTLY THEREAFTER.  SECTION 3 OF AN ACT OF JULY 27, 1866,  FN34
WHICH INCORPORATED AND GRANTED LANDS TO THE ATLANTIC AND PACIFIC
RAILROAD COMPANY, IS IN THE SAME WORDS EXCEPT THAT THE MINERAL
INDEMNITY IS LIMITED TO A DISTANCE OF TWENTY MILES FROM THE LINE. 
LANDS TO THE TEXAS PACIFIC RAILROAD COMPANY, EMPLOYS THE SAME
PHRASEOLOGY. 

THE GRANTING CLAUSE OF THE ACT OF 1864 DIFFERED FROM THOSE
THERETOFORE COMMONLY USED.  IN EARLIER ACTS INDEMNITY SELECTIONS WERE
REQUIRED TO BE OF LANDS NEAREST THE LINE.  BY THE ACT OF 1864 LANDS IN
LIEU OF PLACE LANDS PREVIOUSLY SOLD, OR OTHERWISE DISPOSED OF, MIGHT BE
SELECTED FROM LAND ANYWHERE WITHIN THE INDEMNITY BELT.  IN THE MINERAL
INDEMNITY PROVISION, HOWEVER, CONGRESS REVERTED TO THE EARLIER PRACTICE
OF REQUIRING THAT AGRICULTURAL LANDS NEAREST TO THE LINE, BUT WITHIN AN
UNUSUALLY WIDE BELT OF FIFTY MILES ON EITHER SIDE, SHOULD BE SELECTED. 
IT SEEMS OBVIOUS THAT THIS PROVISION WAS INSERTED IN THE KNOWLEDGE THAT
THE MOUNTAINOUS WESTERN COUNTRY WOULD AFFORD LESS OPPORTUNITY TO OBTAIN
GOOD LANDS BY INDEMNITY SELECTION THAN THE MORE LEVEL FARMING COUNTRY
TO THE EAST. 

IT IS ALSO TO BE NOTED THAT THE BILL AS IT PASSED THE HOUSE OMITTED A
PROVISION FOUND IN BILLS EARLIER INTRODUCED IN AID OF RAILROADS IN THE
FAR WEST, REQUIRING THAT THE LIEU LANDS FOR MINERAL LOSSES SHOULD NOT
ONLY BE THOSE NEAREST THE LINE, BUT "NEAREST THE LINE OF THE ROAD
THROUGH SAID MINERAL LANDS  ...  "  FN36  IN THE SENATE THE GRANT OF
MINERAL INDEMNITY WAS STRICKEN OUT AND MINERAL LANDS WERE DEFINED TO
EXCLUDE COAL AND IRON.  FN37  THE BILL PASSED THE SENATE IN THIS FORM
AND WAS SENT TO A CONFERENCE COMMITTEE.  FN38  THE MEASURE CAME FROM
THE CONFERENCE COMMITTEE IN THE FORM IN WHICH IT FINALLY PASSED.  THE
ACT THUS PERMITTED A SELECTION OF AGRICULTURAL LIEU LANDS NOT ONLY IN
THE TERRITORY ADJACENT TO THE MINERAL PLACE LANDS BUT WITHIN FIFTY
MILES ON EITHER SIDE OF THE RIGHT OF WAY ANYWHERE ALONG THE ENTIRE
ROUTE OF THE ROAD.  IT HAS CONSISTENTLY BEEN SO CONSTRUED AND THE
COMPANY HAS BEEN ALLOWED TO SELECT, AS MINERAL INDEMNITY, LANDS NOT
MORE THAN FIFTY MILES FROM ITS RIGHT OF WAY OPPOSITE ANY PART OF THE
ROAD AND IN ANY STATE TRAVERSED BY THE LINE.  FN39 

THE GOVERNMENT CONTENDS THAT "AGRICULTURAL" MEANS "PRESENTLY
TILLABLE" OR "PRESENTLY FIT FOR THE PLOUGH."  WE AGREE, HOWEVER, WITH
THE MASTER AND THE COURT BELOW THAT THE WORDS "MINERAL" AND
"AGRICULTURAL" AS USED IN THE ACT ARE NOT TO BE READ STRICTLY AS
DEFINED BY THE DICTIONARY.  MINERAL LANDS, AS THE PHRASE HAS BEEN
APPLIED IN THE ADMINISTRATION OF PUBLIC LANDS, EMBRACE NOT ONLY THOSE
WHICH THE LEXICON DEFINES AS MINERAL, BUT, IN ADDITION, SUCH AS ARE
VALUABLE FOR DEPOSITS OF MARBLE, SLATE, PETROLEUM, ASPHALTUM, AND EVEN
GUANO.  LIKEWISE, IN THE ADMINISTRATION OF PRE-EMPTION AND HOMESTEAD
LEGISLATION, THE TERMS "AGRICULTURAL" AND "CULTIVATION" HAVE BEEN GIVEN
A LIBERAL CONSTRUCTION.  IT APPEARS FROM THE RECORD, AND FROM THE
EVIDENCE BEFORE THE JOINT CONGRESSIONAL COMMITTEE, THAT PRE-EMPTORS OR
HOMESTEADERS, UNDER THE ACTS REQUIRING SETTLEMENT AND CULTIVATION AS A
PREREQUISITE TO A PATENT, HAVE BEEN ALLOWED TO TAKE UP FORESTS, GRAZING
LAND, AND, IN FACT, ALL TYPES OF LAND WHICH, IN GOOD FAITH, WERE SOUGHT
FOR A HOME, PROVIDED THE LANDS COULD, BY THE SETTLER'S EFFORT, BE MADE
HABITABLE AND USED AS A FARM HOME.  THIS HAS BEEN TRUE IN SPITE OF THE
FACT THAT THE APPLICABLE ACTS OF CONGRESS HAVE REQUIRED CULTIVATION AS
A PREREQUISITE TO ACQUISITION BY THE PRE-EMPTOR OR HOMESTEADER.  FN40 

UNDER THE ADMINISTRATIVE PRACTICE, ALTHOUGH LANDS CONTAINING TIMBER
COULD BE TAKEN FOR HOMES IN THE PUBLIC LAND STATES, A CERTAIN PORTION
OF THE LANDS HAD TO BE CLEARED PRELIMINARY TO CULTIVATION.  BUT, THE
PRE-EMPTOR OR HOMESTEADER HAS NOT BEEN PERMITTED TO TAKE UP LANDS
VALUABLE ONLY FOR TIMBER OR FOR STONE OR FOR SOME OTHER USE, WHICH
COULD NOT BE RENDERED CULTIVABLE OR USABLE IN A BROAD SENSE FOR
FARMING, BY CLEARING OR OTHER WORK DONE THEREON.  PURSUANT TO
LEGISLATION ENACTED YEARS AFTER THE GRANTS TO THE COMPANY, LANDS UNFIT
FOR A FARM HOME COULD BE ACQUIRED.  FN41    IT SEEMS TO US THAT
INASMUCH AS THE RAILROAD COMPANY COULD NOT TAKE OTHER MINERAL LANDS IN
LIEU OF MINERAL PLACE LANDS LOST TO THE GRANT AND, IF IT WERE CONFINED
TO NON-MINERAL LANDS, CONTIGUOUS TO THE LOST MINERAL LANDS, IT WOULD
PROBABLY RECEIVE LANDS THEN CONSIDERED OF LITTLE OR NO VALUE, CONGRESS,
BY THE USE OF THE TERM "AGRICULTURAL," AND BY GRANTING THE RIGHT TO
SELECT THE LIEU LANDS ANYWHERE ALONG THE LINE, INTENDED TO GIVE THE
COMPANY THE PRIVILEGE OF TAKING MORE VALUABLE LANDS THAN THOSE WILD
FOREST LANDS CONTIGUOUS TO THE MINERAL PLACE LANDS IN THE WESTERN
MOUNTAIN REGIONS. 

THE TRUTH SEEMS TO BE THAT, IN EXTENDING THIS PRIVILEGE TO SELECT
MORE VALUABLE LANDS, CONGRESS DID NOT HAVE IN MIND A DISTINCTION
BETWEEN "NON-MINERAL" AND "AGRICULTURAL" LANDS, IN THE SENSE THAT THE
COMPANY MUST SELECT THE MORE VALUABLE AGRICULTURAL LANDS AND REFRAIN
FROM TAKING LESS VALUABLE LANDS NON-MINERAL BUT NOT SUSCEPTIBLE OF
CULTIVATION.  AS THE MASTER WELL SAYS, AT THE TIME OF THE GRANT
AGRICULTURAL LANDS IN STATES EASTWARD OF THE ROCKY MOUNTAINS WERE FAR
MORE VALUABLE THAN THE ROUGH MOUNTAIN LANDS FARTHER TO THE WEST.  IT IS
REASONABLE TO SUPPOSE THAT, AT THAT TIME, NEITHER CONGRESS NOR THE
COMPANY CONTEMPLATED THE SELECTION OF UNUSABLE MOUNTAIN LANDS RATHER
THAN LANDS ULTIMATELY AVAILABLE FOR AGRICULTURE.  NEVERTHELESS, WE ARE
BOUND TO ATTRIBUTE SOME MEANING TO THE LANGUAGE CONGRESS EMPLOYED.  IT
IS OBVIOUS THAT, BY THE USE OF THE WORD "AGRICULTURAL," THE COMPANY WAS
PRECLUDED FROM SELECTING OTHER MINERAL LANDS IN LIEU OF MINERAL LANDS
LOST IN THE PLACE LIMITS.  WITH MINERAL LANDS THUS EXCLUDED, WE THINK
THE WORD "AGRICULTURAL" IS TO BE INTERPRETED IN THE LIGHT OF EXISTING
LEGISLATION AND CONDITIONS. 

WE ARE OF THE VIEW THAT THE WORD "AGRICULTURAL" WAS NOT, THEREFORE,
USED AS SYNONYMOUS WITH "NON-MINERAL" BUT AS SYNONYMOUS WITH "LAND
SUBJECT TO BE TAKEN BY PRE-EMPTORS OR HOMESTEADERS UNDER THE PUBLIC
LAND LAWS."  IT IS CONCEDED THAT MUCH OF THE LAND IN THE FOREST
RESERVES WHICH THE COMPANY CLAIMS THE RIGHT TO SELECT AS MINERAL
INDEMNITY IS NOT SUCH AS COULD HAVE BEEN ACQUIRED BY INDIVIDUALS UNDER
THE LAND LAWS IN FORCE AT THE TIME OF THE GRANT. 

WE HAVE ALREADY NOTED THAT UNTIL THE PUBLIC LANDS WERE SURVEYED THE
COMPANY COULD NOT MAKE SELECTIONS AND THAT, IN THE MEANTIME, UNSURVEYED
LANDS MIGHT BE TAKEN, UNDER THE PRE-EMPTION AND HOMESTEAD LAWS, TO THE
COMPANY'S LOSS OR DETRIMENT.  NO DOUBT IF THE RAILROAD HAD BEEN MORE
PROMPTLY BUILT, AND IF THE COMPANY HAD BEEN MORE ACTIVE IN PAYING FOR
AND PROCURING SURVEYS, GOOD LANDS IN VARIOUS STATES WITHIN THE MINERAL
INDEMNITY BELT WOULD HAVE BEEN AVAILABLE FOR SELECTION.  THESE,
HOWEVER, WERE TAKEN UP AND REMOVED FROM THE COMPANY'S RIGHT OF
SELECTION, WITH THE RESULT THAT THE EXISTING DEFICIENCY IN THE GRANT
MUST BE SATISFIED, IF AT ALL, BY SELECTIONS OF LANDS NOW IN THE FOREST
RESERVES.  BUT, FOR WHATEVER REASON, THE COMPANY HAS LOST THE RIGHT TO
SELECT THE BETTER LANDS MENTIONED, AND WE CANNOT REWRITE THE STATUTE TO
CONFER UPON IT THE PRIVILEGE OF TAKING LANDS OF A DIFFERENT CHARACTER
THAN THOSE SPECIFIED. 

WE CONCLUDE THAT, WHILE THE COMPANY HAD, AT THE TIME OF WITHDRAWAL,
THE RIGHT OF SELECTION OF ANY LANDS WHICH, UNDER THE EXISTING PRACTICE
OF THE LAND OFFICE, A SETTLER COULD HAVE TAKEN UNDER THE PRE-EMPTION OR
HOMESTEAD LAWS, IT MAY NOT TAKE LANDS VALUABLE SOLELY FOR TIMBER OR FOR
OTHER USES WHICH WOULD NOT JUSTIFY PRE-EMPTION OR HOMESTEAD SETTLEMENT
UNDER THE LAND LAWS AS CONTEMPORANEOUSLY UNDERSTOOD AND ADMINISTERED. 
THE COMPANY'S RIGHT OF SELECTION IN THE FOREST RESERVES IS LIMITED TO
SUCH LAND AS WOULD, UNDER THE PRACTICE OF THE LAND OFFICE, HAVE BEEN
AVAILABLE TO INDIVIDUALS UNDER THE PUBLIC LAND LAWS EITHER FOR CLEARING
AND SUBSEQUENT CULTIVATION, OR FOR GRAZING, OR FOR ANY OTHER PURPOSE
COMMONLY CLASSIFIED BY THE LAND OFFICE AS COMING WITHIN THE PRE-EMPTION
AND HOMESTEAD LAWS. 

SINCE THE COURT BELOW HAS ACCORDED THE COMPANY A MUCH BROADER RIGHT
OF SELECTION, ITS DECREE MUST BE REVERSED AND THE CAUSE MUST BE
REMANDED FOR ASCERTAINMENT OF THE COMPANY'S SELECTION RIGHTS AS OF THE
DATES OF THE WITHDRAWALS, IN ACCORDANCE WITH THE VIEWS HEREIN
EXPRESSED. 

15.  THE CLAIM THAT THE UNITED STATES IS LIABLE TO ACCOUNT TO THE
RAILWAY COMPANY ONLY FOR THE ASCERTAINED DEFICIENCY AT THE TIME OF
WITHDRAWAL. 

IN ITS BRIEF UPON REARGUMENT THE GOVERNMENT TAKES THE POSITION THAT
EVEN IF THE WITHDRAWALS LEFT THE GRANT DEFICIENT IN LANDS LYING IN THE
SECOND INDEMNITY LIMITS, THE UNITED STATES IS LIABLE TO ACCOUNT TO THE
RAILWAY COMPANY ONLY FOR THE AMOUNT OF SUCH DEFICIENCY.  THE DISTRICT
COURT HELD THAT IF A GIVEN WITHDRAWAL HAD THE EFFECT OF LEAVING WITHIN
THE INDEMNITY LIMITS AN INSUFFICIENT ACREAGE TO SATISFY THE SELECTION
RIGHTS OF THE COMPANY THE WITHDRAWAL WAS A BREACH OF THE GOVERNMENT'S
OBLIGATION BECAUSE THEREBY THE GOVERNMENT DISENABLED ITSELF TO CARRY
OUT THAT OBLIGATION.  THE CONSEQUENCE WHICH THE DISTRICT COURT ATTACHED
TO SUCH ACTION ON THE PART OF THE GOVERNMENT WAS THAT THE LANDS
WITHDRAWN WERE, NOTWITHSTANDING THE WITHDRAWAL, STILL OPEN TO SELECTION
BY THE COMPANY IF AND WHEN SURVEYED.  THE COURT BELOW THOUGHT THAT, AS
THE COMPANY WAS ENTITLED, UNDER THE TERMS OF THE GRANT, TO EXERCISE ITS
SELECTION RIGHTS WITH RESPECT TO THE WITHDRAWN LANDS IN THESE
CIRCUMSTANCES, THE ACT OF 1929 CONTEMPLATED THAT IT SHOULD BE
COMPENSATED FOR THE DEPRIVATION OF THAT RIGHT. 

WE THINK THAT THE DISTRICT COURT WAS RIGHT AND THAT THE GOVERNMENT'S
POSITION THAT IT IS LIABLE TO ACCOUNT ONLY FOR ANY DEFICIENCY IN THE
VACANT LANDS AT THE TIME OF WITHDRAWAL IS NOT IN ACCORD WITH THE
GRANTING ACT OF 1864.  THE FOREST RESERVE CASE, SUPRA, SUPPORTS THE
DECISION BELOW.  IT IS CLEARLY THERE HELD THAT IF, BY THE GOVERNMENT'S
OWN ACT IN WITHDRAWING LANDS FROM THE INDEMNITY LIMITS, IT LEAVES
INSUFFICIENT VACANT LAND AVAILABLE FOR SELECTION THE COMPANY THEREBY
BECOMES ENTITLED TO SELECT LANDS WITHIN THE INDEMNITY LIMITS.  THAT IS
EXACTLY WHAT WAS DONE BY THE COMPANY WHICH BROUGHT ABOUT THE LITIGATION
IN THE FOREST RESERVE CASE.  THE DECISION IS CLEAR TO THE EFFECT THAT,
ASSUMING THE GRANT WAS DEFICIENT (WHICH WAS THE MATTER THE COURT COULD
NOT DETERMINE ON THE RECORD THEN PRESENTED), THE COMPANY WAS ENTITLED
TO SELECT LANDS WITHIN THE RESERVE. 

16.  THE CLAIM THAT SUBSEQUENT RESTORATIONS OF WITHDRAWN LANDS DEFEAT
THE COMPANY'S RIGHT OF SELECTION OF LANDS WITHIN THE GOVERNMENTAL
WITHDRAWALS. 

WHAT HAS JUST BEEN SAID REQUIRES DENIAL OF THE GOVERNMENT'S
CONTENTION THAT WHERE WITHDRAWN LANDS WERE SUBSEQUENTLY RESTORED TO THE
PUBLIC DOMAIN, IN AN AMOUNT SUFFICIENT TO MAKE UP THE DEFICIENCY
CREATED BY THE ORIGINAL WITHDRAWAL, THE COMPANY'S CLAIM TO CHOOSE LANDS
WITHIN THE WITHDRAWAL AREAS WAS THEREBY DEFEATED. 

UNDER THE ACT OF 1929 THE COMPANY'S RIGHT TO COMPENSATION DEPENDS
UPON THE AVAILABILITY OF LANDS ON THE DATES OF WITHDRAWALS FOR
GOVERNMENTAL PURPOSES.  THIS PROVISION OF THE ACT OF 1929 IS, WE THINK,
IN STRICT ACCORDANCE WITH THE PURPOSE AND INTENT OF THE GRANTING ACT
AND RESOLUTION.  IF, BY THE WITHDRAWALS, THE GOVERNMENT DISENABLED
ITSELF TO COMPLY WITH ITS OBLIGATIONS TO THE COMPANY, THE WITHDRAWALS
WERE UNAUTHORIZED AND THE COMPANY'S RIGHT ATTACHED TO THE WITHDRAWN
LANDS EQUALLY WITH THE VACANT LANDS REMAINING IN THE INDEMNITY LIMITS. 

17.  THE ILLEGAL WITHDRAWALS OF PLACE AND INDEMNITY LANDS. 

AS HAS BEEN NOTED UNDER HEADING 5, SUPRA, THE ACTION OF THE
DEPARTMENT OF THE INTERIOR IN PREMATURELY WITHDRAWING LANDS IN THE
PLACE AND INDEMNITY LIMITS FROM SETTLEMENT AND PRE-EMPTION IS CLAIMED
TO HAVE THE EFFECT OF DENYING THE COMPANY ANY FURTHER RIGHTS UNDER THE
GRANTS. 

THE FURTHER ARGUMENT IS MADE THAT, IN ANY EVENT, THE COMPANY IS
LIABLE TO THE GOVERNMENT FOR DAMAGES CONSEQUENT UPON ITS RECEIVING
LANDS WHICH, IF IT HAD NOT BEEN FOR THE IMPROVIDENT WITHDRAWALS, WOULD
HAVE GONE TO SETTLERS AND PRE-EMPTORS.  THE CLAIM IS THAT THE COURT
BELOW SHOULD HAVE PERMITTED THE GOVERNMENT TO PROVE ANY DAMAGES IT
MIGHT BE ABLE TO SHOW AS A RESULT OF THIS INCORRECT ADMINISTRATION OF
THE GRANT.  A MAJORITY OF THE COURT IS OF THE OPINION THAT A GOOD
GROUND FOR A CREDIT IN FAVOR OF THE UNITED STATES AGAINST THE COMPANY
IS SET UP BY PARAGRAPH XXXII OF THE BILL AND THAT THIS PARAGRAPH IS
NOT, IN THIS ASPECT, SUBJECT TO THE MOTION TO STRIKE. 

THE PARAGRAPH SETS UP THE DISADVANTAGES TO THE GOVERNMENT OF THE
ACTION OF THE SECRETARY OF THE INTERIOR IN WITHDRAWING LANDS
PREMATURELY; THAT AS A CONSEQUENCE THE COMPANY AND ITS PREDECESSOR
SECURED BENEFITS, LANDS AND VALUES TO WHICH THEY WERE NOT ENTITLED, TO
THE INJURY OF THE UNITED STATES. 

THE MAJORITY OF THE COURT THINKS THAT SECTION SIX OF THE ACT OF 1929
REQUIRES A CHARGE AGAINST THE COMPANY FOR SUMS RECEIVED IN LANDS OR
VALUES IN EXCESS OF THAT TO WHICH IT WAS RIGHTFULLY ENTITLED THROUGH
MISTAKE OF LAW OR FACT, OR THROUGH MISAPPREHENSION AS TO THE PROPER
CONSTRUCTION OF SAID GRANTS, OR AS A RESULT OF FRAUD, OR OTHERWISE. 

THE PROOF OF THESE ALLEGED ADVANTAGES GAINED OR LOSSES SUFFERED MAY
BE DIFFICULT.  THIS IS FOR DEVELOPMENT AT THE HEARING.  THE PROOF,
HOWEVER, MUST BE OF FINANCIAL DETERIMENT TO THE UNITED STATES OR OF
FINANCIAL BENEFIT TO THE COMPANY. 

18.  THE COMPANY'S FAILURE TO OPEN LANDS GRANTED BY THE RESOLUTION OF
1870 TO SETTLEMENT AND PRE-EMPTION. 

THE COMPANY'S ALLEGED BREACH IN THIS ASPECT AS A DEFENSE TO THE
COMPANY'S ENTIRE CLAIM IS MENTIONED IN HEADING 4, SUPRA. 

THE BILL ALLEGES, IN PARAGRAPH XIII, THE COMPANY'S FAILURE TO OPEN
THE GRANTED LANDS TO SETTLEMENT AND PREEMPTION WAS A BREACH OF ITS
CONTRACT AND "IN DEFEAT OF THE POLICY OF THE UNITED STATES WITH RESPECT
TO THE DISPOSITION OF ITS PUBLIC DOMAIN,  ...  "  IN PARAGRAPH XLII THE
COURT IS ASKED TO DETERMINE THE EXTENT TO WHICH THE COMPANY HAS FAILED
TO COMPLY WITH THE OBLIGATION IMPOSED BY THE JOINT RESOLUTION
PERTAINING TO THE DISPOSITION OF THE LANDS BY SETTLEMENT AND PRE
EMPTION AND TO DECREE THAT THE COMPANY NOW PERFORM ITS COVENANT TO THE
EXTENT THIS IS POSSIBLE AND, WHERE IT IS FOUND IMPOSSIBLE FOR THE
COMPANY TO PERFORM, THE PLAINTIFF HAVE SUCH RELIEF AS THE COURT MAY
DEEM PROPER; AND FURTHER THAT THE COURT DECREE THAT ANY AND ALL MONEYS
RECEIVED BY THE COMPANY FROM OR BY REASON OF THE GRANTED LANDS AFTER
THE BREACH OF ITS COVENANT BE DECLARED TO HAVE BEEN RECEIVED BY THE
COMPANY IN TRUST FOR THE USE AND BENEFIT OF THE UNITED STATES AND THAT
THE PLAINTIFF BE AWARDED JUDGMENT FOR THE AMOUNT OF SUCH MONEYS.  THE
PRAYER IS, THEREFORE, IN THE ALTERNATIVE FOR DAMAGES OR FOR AN
ACCOUNTING, AS UPON A CONSTRUCTIVE TRUST. 

WE HOLD, CONTRARY TO THE GOVERNMENT'S ASSERTION, THAT THE PROVISO OF
THE RESOLUTION OF 1870, REQUIRING THAT THE LANDS BE OPENED BY THE
COMPANY TO SETTLEMENT AND PREEMPTION APPLIES ONLY TO THE ADDITIONAL
LANDS GRANTED BY THAT RESOLUTION AND NOT TO LANDS ACQUIRED UNDER THE
GRANT OF 1864.  FN42  WE HOLD FURTHER THAT THE COMPANY WAS NOT A
TRUSTEE OF THE LANDS FOR THE UNITED STATES EITHER IN ITS OWN RIGHT OR
IN BEHALF OF POSSIBLE SETTLERS.  FN43  IT RESULTS THAT THE GOVERNMENT
CANNOT CALL UPON THE COMPANY TO ACCOUNT AS A TRUSTEE FOR THE PROCEEDS
OF SALE OF THE LANDS. 

A MAJORITY OF THE JUSTICES WHO HEARD THIS CASE ARE OF OPINION THAT
THE PROVISO OF THE RESOLUTION OF 1870 REQUIRED THE COMPANY TO OPEN THE
LANDS GRANTED BY THE RESOLUTION TO PRE-EMPTION AND SETTLEMENT AT THE
EXPIRATION OF FIVE YEARS FROM THE COMPLETION OF THE ENTIRE ROAD IN
1887, WHETHER THE LANDS WERE THEN SUBJECT TO MORTGAGE OR NOT; THAT ITS
FAILURE SO TO DO WAS A BREACH OF ITS CONTRACT WITH THE UNITED STATES
AND THAT THE GOVERNMENT IS ENTITLED, IF IT CAN, TO PROVE ANY DAMAGE TO
IT, OR ADVANTAGE TO THE COMPANY, WHICH RESULTED FROM THIS BREACH OF
CONTRACT.  IN THIS VIEW THE COURT BELOW SHOULD NOT HAVE DISMISSED
PARAGRAPH XIII OF THE BILL AND THAT PARAGRAPH SHOULD BE REINSTATED FOR
THE PURPOSE OF PERMITTING THE GOVERNMENT TO PROVE DAMAGES AND PROOF
SHOULD BE SUBMITTED THEREUNDER TO THAT END. 

19.  THE CLAIM THAT THE DECREE BELOW IN DIRECTING PATENTS TO ISSUE
FOR 428,986.68 ACRES OF LAND OUTSIDE THE RESERVES WAS ERRONEOUS TO THE
EXTENT OF 44,838.60 ACRES OF INDEMNITY LANDS. 

IN ITS BRIEF UPON REARGUMENT, THE GOVERNMENT ADVANCES THE CLAIM THAT
THE DECREE OF THE DISTRICT COURT QUIETING THE COMPANY'S TITLE TO
428,986.68 ACRES OF LAND LYING OUTSIDE THE RESERVES, AND DIRECTING THAT
PATENTS ISSUE UPON PAYMENT OF ANY BALANCE OF FEES DUE BY THE COMPANY,
WAS ERRONEOUS AS TO 44,838.60 ACRES.  IT IS ASSERTED THAT 383,808.08 OF
THE ACRES IN QUESTION LIE WITHIN THE PLACE LIMITS OF THE GRANT BUT
45,178.60 ACRES LIE WITHIN INDEMNITY LIMITS.  OF THESE THE GOVERNMENT
CONCEDES THAT, BY A STIPULATION FILED, 340 ACRES ARE TO BE PATENTED TO
THE COMPANY.  AS TO THE REMAINING ACREAGE, THE CONTENTION IS THAT THE
COMPANY IS NOT ENTITLED TO PATENTS, ALTHOUGH SELECTIONS WERE FILED WITH
THE DEPARTMENT OF THE INTERIOR, PRIOR TO JUNE 5, 1924. 

IT IS SAID THAT, ON GROUNDS HERETOFORE STATED, THE COMPANY'S BREACHES
DISENTITLE IT TO FURTHER PERFORMANCE ON THE PART OF THE GOVERNMENT. 
AND, IT IS URGED THAT, AS TO OVER 30,000 ACRES OF THE LANDS IN
QUESTION, THE COMPANY ASSIGNED LOSSES OF MINERAL LANDS AS BASE FOR
INDEMNITY SELECTION AND THE ALLEGED FRAUD IN MINERAL CLASSIFICATION
VITIATES THE SELECTION OF THIS ACREAGE AS INDEMNITY.  THE GOVERNMENT
ALSO ASSERTS THAT SOME 13,000 ACRES OF LANDS SELECTED FOR PATENT PRIOR
TO THE BAR DATE ARE INDIAN LANDS WITHIN THE CROW RESERVATION.  THE
FIRST CONTENTION CANNOT PREVAIL IN VIEW OF THE EVEN DIVISION OF OPINION
ALREADY STATED; THE SECOND CANNOT, SINCE THE BILL PRAYS NO AFFIRMATIVE
RELIEF IN RESPECT OF THE FRAUDULENT CLASSIFICATION IT ALLEGES; THE
THIRD CANNOT, IN THE LIGHT OF OUR DECISION STATED UNDER HEADING 10,
SUPRA.    SECONDLY, THE GOVERNMENT URGES, SINCE THE DISTRICT COURT HAS
HELD THAT, IN ORDER TO OBTAIN COMPENSATION FOR THE DEPRIVATION OF
RIGHTS TO SELECT LANDS LYING WITHIN THE WITHDRAWN GOVERNMENT RESERVES,
THE COMPANY MUST ASSIGN BASE FOR THE LANDS SELECTED AS TO WHICH
COMPENSATION IS CLAIMED, THE SAME PRINCIPLE MUST APPLY TO SELECTION
RIGHTS EXERCISED PRIOR TO THE RESOLUTION OF JUNE 5, 1924.  IT ADDS THAT
THE COMPANY HAS FAILED TO SHOW THAT IN SELECTING LANDS WITHIN THE
INDEMNITY LIMITS PRIOR TO THE DATE OF THAT RESOLUTION IT ASSIGNED BASE
FOR SUCH SELECTIONS, TO WHICH THE COMPANY REPLIES THAT THE GOVERNMENT
IS IN ERROR IN ASSERTING THAT IT DID NOT ASSIGN SUCH BASE. 

THE ARGUMENT WITH RESPECT TO THE SELECTED INDEMNITY LANDS, WHICH THE
DISTRICT COURT DECREED SHOULD BE PATENTED TO THE COMPANY, FIRST EMERGED
IN THIS COURT ON REARGUMENT.  IN ITS ORIGINAL BRIEF THE GOVERNMENT
SAID: 

"THE DECREE QUIETS TITLE TO THE LANDS FROM THE INDEMNITY BELTS
RETAINED BY THE UNITED STATES IN THE FOREST RESERVES AND OTHER RESERVES
AND DIRECTS THE ISSUANCE OF PATENTS TO THE COMPANY FOR 428,986.68
ACRES, MOSTLY IN PLACE LIMITS OF THE GRANTS.  IN THESE AND SEVERAL
OTHER RESPECTS THE DECREE IS NOT THE SUBJECT OF THIS APPEAL." 

IT IS NOW SAID THAT, DESPITE THIS CONCESSION, THE POINT WAS PRESERVED
IN THE RECORD BELOW AND IS OPEN HERE.  WE CANNOT AGREE. 

BY ITS EXHIBITS NOS. 149 TO 158, INCLUSIVE, THE COMPANY LISTED THE
LANDS IN PLACE AND INDEMNITY LIMITS WHICH HAD BEEN SELECTED FOR PATENT
AMOUNTING TO OVER 455,000 ACRES.  BY STIPULATION OF THE PARTIES CERTAIN
OF THESE WERE ELIMINATED.  THEREAFTER THE GOVERNMENT, BY ITS EXHIBITS
NOS. 103(REVISED) AND 210(REVISED) LISTED THE REMAINING LANDS AS
CHARGEABLE TO THE GRANT.  WITH NEGLIGIBLE EXCEPTIONS THE MASTER FOUND
THAT THEY WERE SO CHARGEABLE.  IN ITS FINDINGS THE DISTRICT COURT
ADOPTED THE MASTER'S RULING AND STATED DEFINITELY IN ITS FINDINGS THAT
THE PLAINTIFF TOOK NO EXCEPTION TO THE MASTER'S REPORT IN CONNECTION
WITH THIS MATTER.  THE COURT FOUND, THEREFORE, ON THE BASIS OF THE
MASTER'S REPORT, THAT THE TOTAL OF THE LANDS BOTH IN PLACE AND
INDEMNITY LIMITS SO SELECTED BY THE COMPANY SHOULD GO TO PATENT.  THE
GOVERNMENT, WHILE NOT CONTROVERTING THE FACT FOUND BY THE COURT THAT IT
HAD TAKEN NO EXCEPTION TO THIS PORTION OF THE MASTER'S REPORT, POINTS
TO AN ASSIGNMENT OF ERROR FILED ON THE APPEAL TO THIS COURT ASSERTING
THAT THE DISTRICT COURT ERRED:  "52.  IN HOLDING THAT THE RAILROAD IS
NOW ENTITLED TO RECEIVE PATENT TO ANY OF THE INDEMNITY LANDS MENTIONED
OR REFERRED TO IN SUBDIVISION XVIII OF THE COURT'S FINDINGS." 
SUBDIVISION XVIII IS THAT SUBDIVISION OF THE FINDINGS IN WHICH THE
COURT DEALT WITH THE WHOLE MATTER OF PATENTS TO BE ISSUED FOR LANDS
SELECTED PRIOR TO THE ADOPTION OF THE RESOLUTION OF 1924 AND DOES NOT
DEAL SPECIFICALLY OR SEPARATELY WITH INDEMNITY LANDS AS CONTRASTED WITH
PLACE LANDS. 

IT IS OBVIOUS THAT THE DECISION OF THE COURT SUSTAINING THE
GOVERNMENT'S POSITION THAT, IN THE CLAIM FOR COMPENSATION FOR LOSS OF
INDEMNITY SELECTION RIGHTS TO LANDS WITHIN THE RESERVES THE COMPANY
MUST ASSIGN BASE FOR THE LANDS IT ALLEGED IT LOST BY THEIR WITHDRAWAL,
FURNISHES NO JUSTIFICATION FOR THE CLAIM THAT THE MASTER OR THE
DISTRICT COURT WAS ASKED TO ANNUL AND HOLD INEFFECTUAL SELECTION RIGHTS
EXERCISED WITH RESPECT TO LANDS OUTSIDE THE RESERVES WHICH, BUT FOR THE
INTERPOSITION OF CONGRESS IN THE RESOLUTION OF 1924, WOULD HAVE GONE TO
PATENT.  MOREOVER, IT IS NOT CLEAR FROM THE RECORD WHETHER THE COMPANY
DID IN FACT ASSIGN BASE IN THE LISTS OF SELECTION RIGHTS FILED, OR
FAILED TO DO SO.  THE IMPLICATION FROM THE RECORD SEEMS TO BE THAT THE
COMPANY DID ASSIGN SUCH BASE.  IN ANY EVENT, WE THINK THE POINT WAS NOT
BROUGHT TO THE MASTER'S OR THE COURT'S ATTENTION IN ANY SUCH MANNER AS
TO JUSTIFY ITS BEING MADE THE BASIS OF A CLAIM OF ERROR IN THIS COURT. 
THIS MUST HAVE BEEN THE GOVERNMENT'S VIEW WHEN THE CASE WAS FIRST
ARGUED.  IN THE LIGHT OF ITS SWEEPING CONCESSION ABOVE QUOTED, AND THE
STATE OF THE RECORD, WE ARE UNWILLING TO DISTURB THE DISTRICT COURT'S
DECREE AS RESPECTS LANDS TO BE PATENTED TO THE COMPANY. 

20.  THE COMPANY'S CLAIM TO INDEMNITY RESULTING FROM THE TACOMA
OVERLAP. 

IN ITS APPEAL (NO. 4) THE COMPANY CHALLENGES THE REJECTION OF ITS
CLAIM FOR LOSS OF SELECTION RIGHTS IN SECOND INDEMNITY LIMITS
APPURTENANT TO THE PORTLAND-TACOMA LINE.  IT IS URGED THAT THE JOINT
RESOLUTION OF 1870, WHICH MADE A GRANT IN AID OF THIS LINE, AUTHORIZED
THE CREATION OF SECOND INDEMNITY LIMITS, IN THE EVENT THAT THERE WAS A
DEFICIENCY OF LANDS IN FIRST INDEMNITY LIMITS, TO SUPPLY LOSS OF PLACE
LANDS LYING ALONG THE ROUTE.  THE COMPANY INSISTS THAT WHEN, IN 1898,
1902 AND 1906, 213,000 ACRES OF LAND WERE WITHDRAWN AND PLACED IN
NATIONAL FORESTS, THESE WITHDRAWALS DEPRIVED THE COMPANY OF SELECTION
OF ODD-NUMBERED SECTIONS IN SECOND INDEMNITY LIMITS, AS THE 1870 GRANT
WAS DEFICIENT IN 1882, THE DATE OF THE DEFINITE LOCATION OF THE LAST
SEGMENT OF THE PORTLAND-TACOMA LINE, AND SO REMAINED. 

FOR AN UNDERSTANDING OF THE CONTENTION CERTAIN FACTS MUST BE BORNE IN
MIND.  BY THE ACT OF 1864 THE LINE AUTHORIZED WAS TO RUN FROM A POINT
ON LAKE SUPERIOR TO SOME POINT ON PUGET SOUND, WITH A BRANCH VIA THE
COLUMBIA RIVER TO A POINT AT OR NEAR PORTLAND.  BY THE JOINT RESOLUTION
OF 1870 THE COMPANY WAS AUTHORIZED TO CONSTRUCT ITS MAIN LINE TO A
POINT ON PUGET SOUND VIA THE VALLEY OF THE COLUMBIA RIVER WITH THE
RIGHT TO CONSTRUCT ITS BRANCH FROM A POINT ON ITS MAIN LINE, ACROSS THE
CASCADE MOUNTAINS TO PUGET SOUND.  THUS THE RESOLUTION ALTERED WHAT HAD
BEEN THE PROPOSED MAIN LINE ACROSS THE CASCADE MOUNTAINS INTO A BRANCH
LINE, AND THE FORMER BRANCH LINE TO PORTLAND INTO A SECTION OF THE MAIN
LINE RUNNING DOWN THE COLUMBIA RIVER TO PORTLAND AND THENCE TURNING
NORTH TO PUGET SOUND.  ALTHOUGH BY AN ACT OF 1869 THE COMPANY HAD BEEN
AUTHORIZED TO CONSTRUCT A LINE BETWEEN PORTLAND AND TACOMA, AND A RIGHT
OF WAY HAD BEEN GRANTED THEREFOR, NO GRANT OF LANDS IN AID OF SUCH
CONSTRUCTION WAS MADE UNTIL THE ADOPTION OF THE RESOLUTION OF 1870. 
THAT RESOLUTION IN AUTHORIZING THE LOCATION AND CONSTRUCTION OF THIS
PORTION OF THE COMPANY'S ROAD, DID SO IN THESE WORDS:  "UNDER THE
PROVISIONS AND WITH THE PRIVILEGES, GRANTS, AND DUTIES PROVIDED FOR IN
ITS ACT OF INCORPORATION."  OBVIOUSLY THE LAND GRANT WAS THE SAME AS
THAT IN THE CHARTER ACT, NAMELY, PLACE LANDS IN A STRIP EXTENDING
TWENTY MILES ON EACH SIDE OF THE ROAD IN STATES AND FORTY MILES ON EACH
SIDE IN TERRITORIES, WITH AN INDEMNITY BELT TEN MILES IN WIDTH ON
EITHER SIDE OF THE EXTERIOR LIMITS OF THE PLACE GRANT. 

THE LEGISLATIVE HISTORY OF THE RESOLUTION SHOWS THAT CONGRESS WAS
INFORMED THE COMPANY COULD NOT OBTAIN, IN CONNECTION WITH ITS ORIGINAL
GRANT, ALL THAT CONGRESS INTENDED IT SHOULD HAVE, FOR THE REASON THAT,
PRIOR TO SELECTION OF INDEMNITY LANDS FOR LOSSES IN PLACE LANDS, MUCH
TERRITORY HAD BEEN REMOVED FROM THE OPERATION OF THE ACT BY PRE-EMPTION
AND SETTLEMENT UNDER THE LAND LAWS.  IN ORDER TO COMPENSATE THE COMPANY
FOR SUCH LOSSES THERE WAS INSERTED IN THE JOINT RESOLUTION THE
FOLLOWING:  "AND IN THE EVENT OF THERE NOT BEING IN ANY STATE OR
TERRITORY IN WHICH SAID MAIN LINE OR BRANCH MAY BE LOCATED, AT THE TIME
OF THE FINAL LOCATION THEREOF, THE AMOUNT OF LANDS PER MILE GRANTED BY
CONGRESS TO SAID COMPANY, WITHIN THE LIMITS PRESCRIBED BY ITS CHARTER,
THEN SAID COMPANY SHALL BE ENTITLED, UNDER THE DIRECTIONS OF THE
SECRETARY OF THE INTERIOR, TO RECEIVE SO MANY SECTIONS OF LAND
BELONGING TO THE UNITED STATES, AND DESIGNATED BY ODD NUMBERS, IN SUCH
STATE OR TERRITORY, WITHIN TEN MILES ON EACH SIDE OF SAID ROAD, BEYOND
THE LIMITS PRESCRIBED IN SAID CHARTER, AS WILL MAKE UP SUCH DEFICIENCY,
ON SAID MAIN LINE OR BRANCH, EXCEPT MINERAL AND OTHER LANDS AS EXCEPTED
IN THE CHARTER OF SAID COMPANY  ...  TO THE AMOUNT OF THE LANDS THAT
HAVE BEEN GRANTED, SOLD, RESERVED, OCCUPIED BY HOMESTEAD SETTLERS, PRE
EMPTED, OR OTHERWISE DISPOSED OF SUBSEQUENT TO THE PASSAGE OF THE ACT
OF JULY TWO, EIGHTEEN HUNDRED AND SIXTY-FOUR." 

THE RESOLUTION MADE A NEW GRANT IN AID OF THE PORTLAND-TACOMA LINE. 
FN44  THE PORTION OF THE CASCADE BRANCH (DESIGNATED AS MAIN LINE IN THE
ACT OF 1864) ENTERING TACOMA FROM THE EAST WAS DEFINITELY LOCATED IN
1884.  THIS LOCATION DEFINED THE PLACE LANDS GRANTED BY THE ACT OF
1864.  THE LINE AUTHORIZED BY THE JOINT RESOLUTION ENTERING TACOMA FROM
THE SOUTH WAS DEFINITELY LOCATED IN 1874, THUS EARNING THE GRANT MADE
BY THE RESOLUTION.  THE PLACE LIMITS FORTY MILES WIDE TO THE SOUTH OF
THE CASCADE LINE, AND OF EQUAL WIDTH TO THE EAST OF THE PORTLAND-TACOMA
LINE, OVERLAP.  THE AREA OF THE OVERLAP, APPROXIMATELY FORTY MILES
SQUARE, CONTAINS ALTERNATE SECTIONS TOTALING 637,580 ACRES.  THE
COMPANY SAYS THAT, UNDER THE 1864 GRANT PURSUANT TO WHICH THE CASCADE
LINE WAS BUILT, TITLE TO THE PLACE LANDS VESTED IN THE COMPANY ON THE
DATE OF DEFINITE LOCATION, AS OF THE DATE OF THE ORIGINAL GRANT; THAT
THESE LANDS WERE THUS LOST TO THE GRANT OF 1870 APPURTENANT TO THE
PORTLAND-TACOMA LINE; AND THAT, THE COMPANY WAS ENTITLED TO INDEMNITY
FOR THEM.  IF THIS IS THE RIGHT VIEW, 637,580 ACRES MUST BE ADDED TO
THE OTHER LOSSES FOR WHICH INDEMNITY WAS NEEDED AT THE DATE OF THE
FOREST WITHDRAWALS AND THUS THE DEFICIENCY IN THE GRANT REQUIRED A
LARGE QUANTITY OF LANDS IN SECOND INDEMNITY LIMITS THROUGH THE
WITHDRAWN LANDS, IF ANY SUCH LIMITS WERE CREATED IN CONNECTION WITH THE
1870 GRANT.  THE LAND OFFICE CONSTRUED THE RESOLUTION OF 1870 AS
REQUIRING THE LAYING DOWN OF SECOND INDEMNITY LIMITS FOR THE PORTLAND
TACOMA LINE, AND LAID THEM DOWN IN 1906.  THE MASTER AND THE COURT
BELOW CONCLUDED THAT NO PLACE LANDS WERE LOST TO THE 1870 GRANT BY THE
OVERLAP.  WE ARE OF OPINION THAT THEY WERE RIGHT. 

SEVERAL DECISIONS RESPECTING OVERLAPS OF RAILROAD LAND GRANTS ARE
CITED BUT NONE IS PRECISELY IN POINT.  IT SEEMS TO BE CONCEDED THAT IF
THE CASCADE BRANCH AND THE PORTLAND-TACOMA LINE HAD BEEN AUTHORIZED BY
THE SAME ACT THERE WOULD HAVE BEEN BUT A SINGLE GRANT OF ODD-NUMBERED
INDEMNITY AS FOR A GRANT OF DOUBLE AID IN THE AREA.  FN45  AND IT IS
SETTLED THAT SUCH A GRANT AS THAT UNDER CONSIDERATION IS A GRANT NOT OF
LANDS BY QUANTITY BUT OF LANDS IN PLACE OR BY DESCRIPTION.  FN46
WHETHER CONGRESS INTENDED, IN CONNECTION WITH ITS LATER GRANT OF 1870,
TO ACCORD THE COMPANY INDEMNITY FOR FAILURE TO RECEIVE, IN AID OF THE
PORTLAND-TACOMA LINE, LANDS TO WHICH IT WOULD GET TITLE IN VIRTUE OF
ITS DEFINITE LOCATION OF THE CASCADE LINE, IS THE QUESTION.  WE
CONCLUDE THAT CONGRESS DID NOT SO INTEND. 

IT IS TRUE THAT THE GRANT OF 1870 WAS UPON THE SAME TERMS AS THAT OF
1864.  UNQUESTIONABLY THE COMPANY, IN RESPECT OF THE LINE BUILT UNDER
THE LATER GRANT, WAS ENTITLED TO INDEMNITY FOR LANDS GRANTED OR
DISPOSED OF BY THE UNITED STATES TO OTHERS PRIOR TO THE GRANT.  INDEED,
IT WOULD BE ENTITLED TO INDEMNITY FOR LOSS DUE TO AN EARLIER
OVERLAPPING GRANT TO ANOTHER RAILROAD.  FN47  THE GRANT OF 1864,
CARRIED TITLE TO THE LANDS WITHIN THE OVERLAP TO THE COMPANY AND,
THEREFORE, CONGRESS COULD NOT AND DID NOT MAKE A SECOND GRANT OF THE
SAME LANDS IN 1870.  DID CONGRESS INTEND TO GRANT THE COMPANY INDEMNITY
FOR A PRECEDING GRANT, NOT TO A STRANGER, BUT TO THE COMPANY ITSELF? 
IN ANSWERING THE QUESTION WE MUST BEAR IN MIND THAT IF THE GRANTS HAD
BEEN CONTEMPORANEOUS NO INTENT TO MAKE A DOUBLE GRANT, OR A GRANT OF
INDEMNITY, WOULD BE INFERRED, AND THAT THE TWO GRANTS HERE IN QUESTION
REALLY DEALT WITH BUT A SINGLE RAILROAD SYSTEM.  WE THINK IT CLEAR THAT
CONGRESS DID NOT INTEND TO CONFER A RIGHT TO INDEMNITY UPON THE COMPANY
WHICH WOULD GIVE IT LANDS DOUBLE IN QUANTITY AT THE POINT OF
INTERSECTION OF TWO OF ITS LINES.  AS, IN THIS VIEW, THE ALTERNATE
1864, WERE NOT A LOSS TO THE GRANT TO THE PORTLAND-TACOMA LINE MADE BY
THE RESOLUTION OF 1870, THE LATTER GRANT WAS NOT DEFICIENT AND NO RIGHT
TO SELECT LANDS IN SECOND INDEMNITY LIMITS WAS INFRINGED BY GOVERNMENT
WITHDRAWALS. 

THE APPEAL IN NO. 4 IS WITHOUT MERIT, BUT, UPON THE APPEAL IN NO. 3,
THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS AS INDICATED IN THIS OPINION.  NO. 4, DISMISSED.  NO. 3,
REVERSED. 

FN1  13 STAT. 365. 

FN2  14 STAT. 355; 15 STAT. 255. 

FN3  15 STAT. 346. 

FN4  16 STAT. 57. 

FN5  JOINT RESOLUTION OF MAY 31, 1870, 16 STAT. 378. 

FN6  ST. PAUL & PACIFIC R. CO. V. NORTHERN PACIFIC R. CO., 139 U.S.
1, 5. 

FN7  PAYNE V. CENTRAL PACIFIC RY. CO., 255 U.S. 228, 236. 

FN8 28 STAT. 683. 

FN9  26 STAT. 1095, 1103; 16 U.S.C. 471. 

FN10  NORTHERN PACIFIC RY. CO. V. LANE, 46 APP. D.C. 434. 

FN11  UNITED STATES V. NORTHERN PACIFIC RY. CO., 256 U.S. 51. 

FN12  43 STAT. 461. 

FN13  S. REP. NO. 5, 71ST CONG., 1ST SESS. 

FN14  46 STAT. 41. 

FN15  49 STAT. 1369. 

FN16  NELSON V. NORTHERN PACIFIC RY. CO., 188 U.S. 108, 116-117. 

FN17  HEWITT V. SCHULTZ, 180 U.S. 139. 

FN18  ATLANTIC & PACIFIC R. CO., 17 L.D. 313; NORTHERN PACIFIC R.
CO., 20 L.D. 187; SAWYER V. GRAY, 205 F. 160, 163; DOUGLASS V. RHODES,
280 F. 230, 231; COX V. HART, 260 U.S. 427, 436. 

FN19  HEWITT V. SCHULTZ, 180 U.S. 139; SOUTHERN PACIFIC R. CO. V.
BELL, 183 U.S. 675. 

FN20  256 U.S. 51, 66, 67. 

FN21  ATLANTIC & PACIFIC R. CO., 17 L.D. 313; NORTHERN PACIFIC R.
CO., 20 L.D. 187, 190. 

FN22  HEWITT V. SCHULTZ, 180 U.S. 139, 152; UNITED STATES V. MONTANA
LUMBER & MFG. CO., 196 U.S. 573, 578; UNITED STATES V. MORRISON, 240
U.S. 192, 200; COX V. HART, 260 U.S. 427; SAWYER V. GRAY, 205 F. 160,
163; DOUGLASS V. RHODES, 280 F. 230, 231; NORTHERN PACIFIC RY. CO. V.
LANE, 46 APP. D.C. 434.    FN23  C. 561, SEC. 4, 26 STAT. 1097. 

FN24  IV KAPPLER, 1065; 11 STAT. 657. 

FN25  4 STAT. 729. 

FN26  BEECHER V. WETHERBY, 95 U.S. 517; BUTTZ V. NORTHERN PACIFIC
RAILROAD, 119 U.S. 55; BARDON V. NORTHERN PACIFIC R. CO., 145 U.S. 535,
542; MISSOURI, K. & T. RY. CO. V. ROBERTS, 152 U.S. 114, 117; CLAIRMONT
V. UNITED STATES, 225 U.S. 551, 556. 

FN27  ACT OF MARCH 3, 1893, C. 209, 27 STAT. 612, 631. 

FN28  SUPRA, P. 346. 

FN29  TREATY OF MAY 7, 1868, 15 STAT. 649. 

FN30  SUPRA, NOTE 24. 

FN31  C. 459, 44 STAT. 690. 

FN32  SUPRA, NOTE 8. 

FN33  IT IS TRUE THAT IN ADMINISTRATION OF THE GRANT THE LAND OFFICE
APPROVED SELECTIONS UPON AFFIDAVIT MERELY THAT THE CHOSEN LANDS WERE
"NON-MINERAL"; BUT APPARENTLY THE QUESTION WHETHER THAT PHRASE WAS
SYNONYMOUS WITH "AGRICULTURAL" WAS NOT RAISED OR CONSIDERED.  WE THINK
THE ADMINISTRATIVE PRACTICE, THEREFORE, DOES NOT STRENGTHEN THE
COMPANY'S ARGUMENT.  MOREOVER, CONGRESS HAS NOT APPROVED THE PRACTICE,
BUT, ON THE CONTRARY, HAS DIRECTED THAT ERRORS IN THE ADMINISTRATION OF
THE GRANT SHALL BE CORRECTED BY THE COURT'S DECREE. 

FN34  14 STAT. 292, 294. 

FN35  16 STAT. 573, 576. 

FN36  CF. S. 65, 35TH CONG., 1ST SESS.; H.R. 411, 35TH CONG., 1ST
SESS. 

FN37  CONG. GLOBE, 38TH CONG., 1ST SESS. 3290. 

FN38  CONG. GLOBE, 38TH CONG., 1ST SESS. 3459. 

FN39  OP. A.G. 498, 41 L.D. 571; SESSEY V. NORTHERN PACIFIC RY. CO.,
43 L.D. 302.  THE PRACTICE OF THE LAND OFFICE HAS BEEN UNIFORM IN
PERMITTING SELECTION OF MINERAL LIEU LANDS IN ANY STATE IRRESPECTIVE OF
THE STATE OF LOSS.  THE SAME PRINCIPLE HAS GOVERNED THE RIGHT OF
SELECTION OF FIRST INDEMNITY LANDS FOR LOSSES OTHER THAN MINERAL.  19
OP. A.G. 88, 94; NORTHERN PACIFIC R. CO., 20 L.D. 187; NORTHERN PACIFIC
R. CO. V. SHEPHERDSON, 24 L.D. 417; HAGEN V. NORTHERN PACIFIC R. CO.,
26 L.D. 312. 

FN40  ACT OF JUNE 19, 1834, C. 54, 4 STAT. 678; ACT OF JUNE 22, 1838,
C. 119, 5 STAT. 251; ACT OF AUGUST 4, 1842, C. 122, 5 STAT. 502; ACT OF
MARCH 3, 1843, C. 86, 5 STAT. 619, 621; ACT OF MAY 20, 1862, C. 75, 12
STAT. 392; R.S. SEC. 2291, 43 U.S.C. SEC. 164. 

FN41  TIMBER AND STONE ACT, JUNE 3, 1878, C. 151, 20 STAT. 89; DESERT
LAND ACT, MARCH 3, 1877, C. 107, 19 STAT. 377.  THE LATTER ACT EXCLUDED
BOTH MINERAL AND FORST LANDS FROM ITS OPERATION. 

FN42  THE LEGISLATIVE HISTORY IS CONVINCING:  SEE CONG. GLOBE, 41ST
CONG., 2D SESS., PP. 2480-85; 2569-84. 

FN43  COMPARE OREGON & CALIFORNIA R. CO. V. UNITED STATES, 238 U.S.
393, 431-436. 

FN44  UNITED STATES V. NORTHERN PACIFIC R. CO., 152 U.S. 284;
NORTHERN PACIFIC R. CO. V. DELACEY, 174 U.S. 622; UNITED STATES V.
NORTHERN PACIFIC R. CO., 193 U.S. 1. 

FN45  SEE UNITED STATES V. OREGON & CALIFORNIA R. CO., 164 U.S. 526,
537. 

FN46  WINONA & ST. PETER R. CO. V. BARNEY, 113 U.S. 618, 627; BARNEY
V. WINONA & ST. PETER R. CO., 117 U.S. 228, 231-2; CF. WISCONSIN
CENTRAL R. CO. V. FORSYTHE, 159 U.S. 46, 59-60. 

FN47  UNITED STATES V. OREGON & CALIFORNIA R. CO., 176 U.S. 28, 50. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













U.S. V. APPALACHIAN POWER CO., 311 U.S. 377 


NO. 12.  ARGUED OCTOBER 14, 15, 1940.  - DECIDED DECEMBER 16, 1940.  -
107 F.2D 769, REVERSED. 


1.  UPON REVIEW OF A CASE INVOLVING THE SCOPE OF THE FEDERAL COMMERCE
POWER IN RELATION TO LICENSING BY THE FEDERAL POWER COMMISSION OF A
HYDROELECTRIC DAM, THIS COURT MAY DETERMINE FOR ITSELF WHETHER A
PARTICULAR WATERWAY IS A NAVIGABLE WATER OF THE UNITED STATES, AND IT
IS NOT PRECLUDED BY THE RULE THAT FACTUAL FINDINGS CONCURRED IN BY TWO
COURTS BELOW WILL BE ACCEPTED HERE UNLESS CLEAR ERROR IS SHOWN.  P.
403. 

2.  THE ULTIMATE CONCLUSION AS TO WHETHER A PARTICULAR WATERWAY IS A
NAVIGABLE WATER OF THE UNITED STATES, AND THE JUDICIAL STANDARDS TO BE
APPLIED IN MAKING THE DETERMINATION, INVOLVE QUESTIONS OF LAW
INSEPARABLE FROM THE PARTICULAR FACTS TO WHICH THEY ARE APPLIED.  P.
404. 

3.  A WATERWAY WHICH BY REASONABLE IMPROVEMENT CAN BE MADE AVAILABLE
FOR NAVIGATION IN INTERSTATE COMMERCE IS A NAVIGABLE WATER OF THE
UNITED STATES, PROVIDED THERE BE A BALANCE BETWEEN COST AND NEED AT A
TIME WHEN THE IMPROVEMENT WOULD BE USEFUL.  P. 407. 

4.  IN SUCH CASE, IT IS NOT NECESSARY THAT THE IMPROVEMENT SHALL HAVE
BEEN ALREADY UNDERTAKEN OR COMPLETED NOR EVEN THAT IT SHALL HAVE BEEN
AUTHORIZED.  P. 408. 

5.  A NAVIGABLE WATER OF THE UNITED STATES DOES NOT LOSE THAT
CHARACTER BECAUSE ITS USE FOR NAVIGATION IN INTERSTATE COMMERCE HAS
LESSENED OR CEASED.  PP. 408, 409. 

6.  A WATERWAY MAY BE A NAVIGABLE WATER OF THE UNITED STATES FOR A
PART ONLY OF ITS COURSE.  P. 410. 

7.  LACK OF COMMERCIAL TRAFFIC DOES NOT PRECLUDE THE CLASSIFICATION
OF A WATERWAY AS A NAVIGABLE WATER OF THE UNITED STATES WHERE PERSONAL
OR PRIVATE USE BY BOATS DEMONSTRATES ITS AVAILABILITY FOR THE SIMPLER
TYPES OF COMMERCIAL NAVIGATION.  P. 416. 

8.  UPON THE FACTS OF THIS CASE, HELD THAT THE NEW RIVER, FROM
ALLISONIA, VIRGINIA, TO HINTON, WEST VIRGINIA, IS A NAVIGABLE WATER OF
THE UNITED STATES.  PP. 410, 418-419. 

9.  IT IS WITHIN THE CONSTITUTIONAL POWER OF CONGRESS TO REQUIRE THAT
A FEDERAL LICENSE BE OBTAINED FOR THE ERECTION OR MAINTENANCE OF A
STRUCTURE IN A NAVIGABLE WATER OF THE UNITED STATES, EVEN THOUGH THE
SOLE PURPOSE OF THE STRUCTURE BE THE GENERATION OF ELECTRIC POWER.  PP.
424, 426. 

10.  THE AUTHORITY OF CONGRESS OVER NAVIGABLE WATERS OF THE UNITED
STATES IS NOT LIMITED TO CONTROL FOR THE PURPOSES OF NAVIGATION ONLY,
BUT IS AS BROAD AS THE NEEDS OF COMMERCE.  P. 426. 

11.  IN THE EXERCISE OF ITS POWER OVER A NAVIGABLE WATER OF THE
UNITED STATES, CONGRESS MAY FORBID THE PLACING OF AN OBSTRUCTION
THEREIN, OR MAY GRANT THE PRIVILEGE ON SUCH TERMS AS IT CHOOSES; AND IT
IS NO OBJECTION THAT ITS EXERCISE OF POWER IN THIS RESPECT IS ATTENDED
BY THE SAME INCIDENTS WHICH ATTEND THE EXERCISE OF THE POLICE POWER OF
THE STATES.  P. 427. 

12.  THE FEDERAL POWER ACT PROVIDES THAT LICENSES ISSUED BY THE
FEDERAL POWER COMMISSION, FOR PROJECTS REQUIRED BY THE ACT TO BE
LICENSED, SHALL CONTAIN CERTAIN CONDITIONS.  SECTION 10(A) REQUIRES
THAT THE PROJECT BE BEST ADAPTED TO A COMPREHENSIVE PLAN FOR IMPROVING
OR DEVELOPING THE WATERWAY FOR THE USE OR BENEFIT OF INTERSTATE OR
FOREIGN COMMERCE, FOR THE IMPROVEMENT AND UTILIZATION OF WATER-POWER
DEVELOPMENT, AND FOR OTHER BENEFICIAL PUBLIC USES, INCLUDING
RECREATIONAL PURPOSES; SEC. 10(C) REQUIRES THAT THE LICENSEE MAINTAIN
THE PROJECT ADEQUATELY FOR NAVIGATION AND FOR EFFICIENT POWER
OPERATION, MAINTAIN DEPRECIATION RESERVES ADEQUATE FOR RENEWALS AND
REPLACEMENTS, AND CONFORM TO THE COMMISSION'S REGULATIONS FOR THE
PROTECTION OF LIFE, HEALTH AND PROPERTY; SEC. 10(D) REQUIRES THAT OUT
OF SURPLUS EARNED AFTER THE FIRST 20 YEARS ABOVE A SPECIFIED REASONABLE
RATE OF RETURN, THE LICENSEE MAINTAIN AMORTIZATION RESERVES TO BE
APPLIED IN REDUCTION OF NET INVESTMENT; SEC. 10(E) REQUIRES THE
LICENSEE TO PAY TO THE UNITED STATES REASONABLE ANNUAL CHARGES FOR
ADMINISTERING THE ACT, AND AUTHORIZES THE UNITED STATES DURING THE
FIRST 20 YEARS TO EXPROPRIATE EXCESSIVE PROFITS UNLESS OR UNTIL THE
STATE PREVENTS SUCH PROFITS; SEC. 14 GIVES THE UNITED STATES THE RIGHT,
UPON EXPIRATION OF A LICENSE, TO TAKE OVER AND OPERATE THE PROJECT BY
PAYING THE LICENSEE'S "NET INVESTMENT," NOT TO EXCEED THE FAIR VALUE OF
THE PROPERTY TAKEN.  HELD THAT RESPONDENT, A POWER COMPANY WHICH, UNDER
LICENSE FROM THE STATE, HAD UNDERTAKEN THE CONSTRUCTION OF A
HYDROELECTRIC DAM IN NEW RIVER, COULD BE COMPELLED, IN A SUIT BROUGHT
BY THE UNITED STATES, TO OBTAIN FROM THE COMMISSION A LICENSE
CONTAINING CONDITIONS AUTHORIZED BY SECS. 10(A), (C), (D), (E) AND 14;
OR, IN THE ALTERNATIVE, TO REMOVE ITS WORKS FROM THE RIVER. 

(1)  THE VALIDITY OF OTHER PROVISIONS OF THE LICENSE, CHALLENGED ONLY
GENERALLY AS UNRELATED TO NAVIGATION, NOT DECIDED.  P. 420. 

(2)  THE FACT THAT THE PROVISIONS OF SEC. 14 FOR ACQUISITION BY THE
UNITED STATES AT THE EXPIRATION OF THE LICENSE PERIOD VITALLY AFFECT
THE ESTABLISHMENT AND FINANCING OF RESPONDENT'S PROJECT, REQUIRES THAT
THE QUESTION OF THE VALIDITY OF THE SECTION AND OF THE LICENSE
PROVISIONS BASED UPON IT BE DETERMINED NOW, AND THAT THE DETERMINATION
BE NOT DEFERRED UNTIL THE RIGHT MATURES AND THE UNITED STATES PROCEEDS
TO EXERCISE IT.  P. 421. 

(3)  ASSUMING, WITHOUT DECIDING, THAT BY COMPULSION OF THE METHOD OF
ACQUISITION PROVIDED BY SEC. 14 AND THE REQUIRED LICENSE, RIPARIAN
RIGHTS OF THE RESPONDENT MAY ULTIMATELY PASS TO THE UNITED STATES FOR
LESS THAN THEIR VALUE, THIS MUST BE REGARDED AS THE PRICE WHICH THE
RESPONDENT MUST PAY FOR THE PRIVILEGE TO MAINTAIN THE DAM, AND DOES NOT
INVOLVE A VIOLATION OF THE FIFTH AMENDMENT.  P. 427. 

(4)  THE LICENSE CONDITIONS HERE CONSIDERED HAVE AN OBVIOUS
RELATIONSHIP TO THE EXERCISE OF THE COMMERCE POWER.  P. 427. 

(5)  THE PROVISIONS FOR FUTURE ACQUISITION OF THE PROJECT BY THE
UNITED STATES IS NOT AN INVASION OF THE SOVEREIGNTY OF THE STATE.  P.
428. 

13.  A VALID EXERCISE BY CONGRESS OF THE POWER DELEGATED TO IT BY THE
COMMERCE CLAUSE CAN NOT CONSTITUTE AN ENCROACHMENT ON STATE SOVEREIGNTY
IN VIOLATION OF THE TENTH AMENDMENT.  P. 428. 

14.  THE COURT CONFINES ITS DECISION IN THIS CASE TO THE CONCRETE
LEGAL ISSUES PRESENTED, AND DOES NOT UNDERTAKE TO DETERMINE ABSTRACT
QUESTIONS AS TO THE RELATIVE RIGHTS OF THE STATES AND THE UNITED STATES
IN RESPECT TO THE DEVELOPMENT AND CONTROL OF WATER POWER.  P. 423. 

UNITED STATES V. APPALACHIAN ELECTRIC POWER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 309 U.S. 646, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING A BILL BROUGHT BY THE UNITED STATES AGAINST THE POWER
COMPANY TO ENJOIN THE CONSTRUCTION OF A DAM IN THE NEW RIVER.  OPINION
OF DISTRICT COURT, 23 F.SUPP.  83. 

SOLICITOR GENERAL BIDDLE, WITH WHOM MESSRS.  JOHN W. AIKEN, WARNER W.
GARDNER, MELVIN H. SIEGEL, WILLIAM S. YOUNGMAN, JR., DAVID W. ROBINSON,
JR., GREGORY HANKIN, AND WILLARD W. GATCHELL WERE ON THE BRIEF, FOR THE
UNITED STATES. 

THE ULTIMATE FINDING OF NAVIGABILITY IS A QUESTION FOR THIS COURT,
AND NOT A SIMPLE PHYSICAL OR HISTORICAL FACT.  CONCURRENT FINDINGS DO
NOT PRECLUDE AN INDEPENDENT REEXAMINATION.  LEOVY V. UNITED STATES, 177
U.S. 621, 628; THE MONTELLO, 20 WALL.  430, 442; CF., ARIZONA V.
CALIFORNIA, 283 U.S. 423, 452. 

THE FOUNDATION OF THE FEDERAL JURISDICTION IS THAT THE STREAM BE
"USED OR SUITABLE FOR USE FOR THE TRANSPORTATION OF PERSONS OR PROPERTY
IN INTERSTATE OR FOREIGN COMMERCE."  FEDERAL POWER ACT, SEC. 3(8).  IF
THE STREAM HAS IN FACT BEEN USED FOR NAVIGATION OF A CONSEQUENTIAL
CHARACTER, IT FOLLOWS WITHOUT MORE THAT THE RIVER IS NAVIGABLE; AND, IF
THE NAVIGATION WAS THE TRANSPORTATION OF PERSONS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE, THAT THE RIVER IS NAVIGABLE WATER OF
THE UNITED STATES. 

IF THE QUESTION IS WHETHER THE STREAM IS SUITABLE FOR NAVIGATION,
SEC. 3(8) IN TERMS PUTS ASIDE A NUMBER OF CONSIDERATIONS WHICH MIGHT
OTHERWISE BE URGED TO DEFEAT A FINDING OF NAVIGABILITY.  STREAMS WHICH
OTHERWISE MIGHT NOT BE NAVIGABLE ARE NAVIGABLE IF THEY "HAVE BEEN
AUTHORIZED BY CONGRESS FOR IMPROVEMENT AFTER INVESTIGATION UNDER ITS
AUTHORITY."  SEE ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288,
328, 329-330. 

CONGRESS HAS POWER TO DEFINE THE CHARACTER OF THE STREAMS WHICH
REQUIRE FEDERAL CONTROL, AND THUS TO IMPLEMENT ITS CONSTITUTIONAL GRANT
OF POWER BY APPROPRIATE DEFINITION.  EVERARD'S BREWERIES V. DAY, 265
U.S. 545, 560; CF. PURITY EXTRACT CO. V. LYNCH, 226 U.S. 192; RUPPERT
V. CAFFEY, 251 U.S. 264.  EVEN IF THE DEFINITION WENT SOMEWHAT BEYOND
INTERSTATE COMMERCE, IT COULD HARDLY BE DENIED THAT THE WATERS
DESCRIBED IN SEC. 3(8) HAVE AN EXISTING OR POTENTIAL EFFECT UPON
INTERSTATE COMMERCE; THEIR REGULATION THEREFORE MAY BE SUSTAINED AS A
CONTROL OF MATTERS WHICH OTHERWISE WOULD OFFER A SUBSTANTIAL THREAT TO
INTERSTATE COMMERCE.  SHREVEPORT RATE CASES, 234 U.S. 342; WISCONSIN
RAILROAD COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S. 563; LABOR
BOARD V. JONES & LAUGHLIN, 301 U.S. 1, 37-38. 

THE RADFORD-WILEY'S SHOALS STRETCH OF NEW RIVER IS PLAINLY NAVIGABLE;
IT HAS BORNE A VARIED AND EXTENSIVE NAVIGATION. 

IT IS UNIMPORTANT THAT ACTUAL NAVIGATION HAS BEEN ABANDONED.  THE
DESPLAINES RIVER HAD BEEN OUT OF USE FOR A CENTURY, "BUT A HUNDRED
YEARS IS A BRIEF SPACE IN THE LIFE OF A NATION," AND IF FEDERAL CONTROL
OF NAVIGABLE WATERS IS TO BE ABANDONED "IT IS FOR CONGRESS, NOT THE
COURTS, SO TO DECLARE."  ECONOMY LIGHT CO. V. UNITED STATES, 256 U.S.
113, 124; ARIZONA V. CALIFORNIA, 283 U.S. 423, 453-454. 

NOR IS IT MATERIAL THAT THE NAVIGATION WAS ACCOMPLISHED WITH
DIFFICULTY OR DANGER.  NAVIGATION ON THE HIGH SEAS IS OFTEN DIFFICULT
AND DANGEROUS, YET IT CANNOT BE SAID THAT THE SEAS ARE NOT NAVIGABLE. 

THE IRREGULARITY OF COMMERCIAL TRIPS, OR THE ABSENCE OF AN
ESTABLISHED TRADE ROUTE, IS IRRELEVANT.  TRIPS WHICH OCCUR ONLY WHEN
THERE IS A SUFFICIENT COMMERCIAL DEMAND PROVE NAVIGABILITY AS
COMPLETELY AS THOSE WHICH MOVE ON REGULAR SCHEDULE.  UNITED STATES V.
UTAH, 283 U.S. 64. 

THE VIEW THAT THE COMMERCE OVER THE RELEVANT STRETCH MUST BE AN
APPRECIABLE PART OF THE RIVER'S TOTAL COMMERCE IS UNSOUND. 

THE SIZE OR CHARACTER OF THE VESSELS USED IS IMMATERIAL.  ECONOMY
LIGHT CO. V. UNITED STATES, 256 U.S. 113, 117; WATER POWER CO. V. WATER
COMMISSIONERS, 168 U.S. 349, 359; THE MONTELLO, 20 WALL.  430, 441
442. 

THE SECTION IS NAVIGABLE ALSO BECAUSE IT IS SUSCEPTIBLE OF, OR
SUITABLE TO, NAVIGATION.  THE CONCEDED TRAFFIC ON THIS STRETCH IS PROOF
OF ITS SUITABILITY FOR COMMERCIAL NAVIGATION.  A FEW TRIPS BETWEEN
ALLISONIA AND HINTON WOULD NOT SHOW AN APPRECIABLE COMMERCIAL
NAVIGATION, BUT WOULD DEMONSTRATE SUITABILITY FOR NAVIGATION. 

THE CONCLUSION THAT THE RADFORD-WILEY'S SHOALS STRETCH IS NAVIGABLE
IS REQUIRED WHETHER ACTUAL NAVIGATION OR PHYSICAL CHARACTERISTICS BE
CONSIDERED.  THE ALLISONIA-RADFORD AND WILEY'S SHOALS-HINTON STRETCHES
ALSO BEING NAVIGABLE, IT FOLLOWS THAT THE NEW RIVER IS NAVIGABLE FROM
ALLISONIA, VIRGINIA, TO HINTON, WEST VIRGINIA.  SINCE THIS 111-MILE
STRETCH IS INTERSTATE, IT RESULTS THAT THE SITE OF RESPONDENT'S PROJECT
IS IN NAVIGABLE WATERS OF THE UNITED STATES. 

RESPONDENT'S PROJECT IS IN NAVIGABLE WATERS OF THE UNITED STATES ALSO
BECAUSE THE ALLISONIA-RADFORD STRETCH, IN WHICH IT IS LOCATED, WAS THE
AVENUE OF AN INTERSTATE COMMERCE WHICH MOVED BY BOAT TO RADFORD AND WAS
THERE TRANSSHIPPED IN INTERSTATE COMMERCE BY RAILROAD.  THE PROTECTION
WHICH CONGRESS IS AUTHORIZED TO EXTEND OVER NAVIGABLE WATERS MUST BE
THE SAME WHETHER THEY ARE CHANNELS OF INTERSTATE COMMERCE WHOLLY BY
WATER OR BY WATER AND RAIL.  CONGRESS REGULATES INTERSTATE WATERWAYS
AND INTERSTATE RAILROADS.  NOTHING IN THE CONSTITUTION PREVENTS
REGULATION OF AN INTERSTATE ROUTE WHICH IS PART WATER AND PART RAIL. 

AS AN INTERSTATE PUBLIC UTILITY, RESPONDENT MAY NOT COMPLAIN OF ANY
PROHIBITION AGAINST UNLICENSED CONSTRUCTION OF ITS PROJECT.  ITS
PROJECT WILL SEND THE BULK OF ITS ELECTRIC ENERGY INTO INTERSTATE
COMMERCE AND WILL BE PART OF AN EXTENSIVE INTERSTATE ELECTRIC SYSTEM,
INTERCONNECTED WITH OTHER SYSTEMS.  THEREFORE, IT IS SUBJECT TO THE
COMMERCE POWERS OF CONGRESS, WITHOUT REGARD TO THE FEDERAL CONTROL OF
TRIBUTARY STREAMS.  PUBLIC UTILITIES COMMISSION V. ATTLEBORO STEAM &
ELEC.  CO., 273 U.S. 83, 86; UTAH POWER & L. CO. V. PFOST, 286 U.S.
165, 182; ELECTRIC BOND CO. V. COMMISSION, 303 U.S. 419, 432-433.  AND,
SINCE CONGRESS IS AUTHORIZED TO REGULATE THE INTERSTATE TRANSMISSION OF
ELECTRICITY, IT HAS FULL POWER TO LICENSE ITS GENERATION FOR PURPOSES
OF INTERSTATE SALE. 

ANOTHER REASON FOR FEDERAL CONTROL OF RESPONDENT'S PROJECT, WHATEVER
THE NAVIGABILITY OF NEW RIVER AT ITS SITE, IS THAT THE WATERS OF NEW
RIVER ARE IN INTERSTATE MOVEMENT AND CONCERN WEST VIRGINIA AND OHIO AS
FULLY AS VIRGINIA.  THE FEDERAL COMMERCE POWER EXTENDS TO THE
INTERSTATE MOVEMENT OF WATERS, SINCE IT APPLIES TO THE INTERSTATE
MOVEMENT OF STOLEN AUTOMOBILES, BROOKS V. UNITED STATES, 267 U.S. 432;
IMPURE FOODS, HIPOLITE EGG CO. V. UNITED STATES, 220 U.S. 45; KIDNAPPED
PERSONS, GOOCH V. UNITED STATES, 297 U.S. 124; CONVICTMADE GOODS,
KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299 U.S. 334;
AND WOMEN TRANSPORTED FOR IMMORAL PURPOSES, CAMINETTI V. UNITED STATES,
242 U.S. 470. 

THE LICENSE PROVISIONS, DESIGNED TO IMPLEMENT THE RECAPTURE CLAUSE,
ARE VALID.  WHETHER RESPONDENT'S PROJECT IS LOCATED IN NAVIGABLE OR IN
NON-NAVIGABLE WATERS, THE UNITED STATES HAS POWER TO FORBID ITS
CONSTRUCTION, AND IT THEREFORE HAS FULL POWER TO CONDITION ITS
PERMISSION WITH REGULATORY PROVISIONS DESIGNED TO SERVE PUBLIC ENDS,
WHETHER OR NOT THE CONDITIONS ARE DIRECTLY RELATED TO NAVIGATION AS
SUCH.  SEE GREEN BAY CANAL CO. V. PATTEN PAPER CO., 172 U.S. 58, 80. 

THE FEDERAL POWER ACT IS A VALID EXERCISE OF THE POWERS GRANTED TO
CONGRESS TO REGULATE INTERSTATE COMMERCE, AND IT THEREFORE DOES NOT
VIOLATE THE TENTH AMENDMENT. 

THE DEVELOPMENT AND CONTROL OF THE WATER RESOURCES OF THE COUNTRY HAS
LONG BEEN RECOGNIZED AS A NATIONAL PROBLEM.  RIVERS FLOW PAST OR ALONG
STATE BOUNDARIES; THEIR NAVIGABILITY IN ONE STATE OFTEN DEPENDS UPON
UPSTREAM CONDITIONS IN ANOTHER STATE.  IF FLOODS IN PENNSYLVANIA AND
OHIO ARE TO BE REDUCED, THE TRIBUTARIES IN WEST VIRGINIA AND VIRGINIA
MUST BE CONTROLLED.  IF DOWNSTREAM LANDS IN ARID REGIONS ARE TO BE
IRRIGATED, THE WATER APPROPRIATIONS IN UPSTREAM STATES MUST BE
CONTROLLED.  IF THE DEVELOPMENT OF HYDROELECTRIC ENERGY IS TO BE
ACCOMPLISHED WITHOUT INJURY TO THESE INTERSTATE CONCERNS, THE STATE OR
STATES IN WHICH THE DAM CHANCES TO BE BUILT CANNOT HAVE THE SOLE VOICE
IN ITS CONTROL. 

THE GOVERNMENT'S POWER TO BUILD THE PROJECT OR TO TAKE IT BY EMINENT
DOMAIN IS CONCEDED.  THERE IS NO INVASION OF THE RIGHTS OF THE STATES
IF IT ELECTS INSTEAD TO SECURE AN OPTION TO TAKE OVER THE PROJECT 50
YEARS HENCE. 

IT IS UNNECESSARY NOW TO CONSIDER THE VALIDITY OF THE RECAPTURE
PROVISION.  RESPONDENT WILL HAVE AN ADEQUATE REMEDY IF ITS
CONSTITUTIONAL RIGHTS SHOULD EVER IN FACT BE INVADED. 

NEVERTHELESS, THE RECAPTURE PROVISION IS A VALID CONDITION TO THE
LICENSE.  SINCE THERE IS POWER TO PROHIBIT CONSTRUCTION OR OPERATION,
THERE IS POWER TO GRANT A FRANCHISE OR A LICENSE FOR A LIMITED PERIOD. 
GIBBONS V. OGDEN, 9 WHEAT.  1.  AT THE END OF THE LICENSE PERIOD, THE
STRUCTURE CAN NO LONGER BE MAINTAINED OR OPERATED.  IT THEN CAN HAVE NO
MORE THAN A JUNK VALUE.  CF. ROBERTS V. NEW YORK CITY, 295 U.S. 264,
284-285.  THE NET INVESTMENT CONTEMPLATED BY THE ACT IS FAR IN EXCESS
OF THE JUNK VALUE OF THE PLANT.  AND THERE CAN BE NO CLAIM FOR
REIMBURSEMENT FOR WATER POWER RIGHTS, THE DEVELOPMENT OF WHICH THE
UNITED STATES CAN AND HAS FORBIDDEN.  CF. UNITED STATES V. CHANDLER
DUNBAR WATER POWER CO., 229 U.S. 53. 

THERE IS NO CONFISCATION.  THE RECAPTURE PROVISIONS ARE SIMPLY THE
PRICE WHICH RESPONDENT MUST PAY TO OBTAIN A PRIVILEGE OTHERWISE DENIED
IT.  IF THE CONTRACT IS HARSH, RESPONDENT HAS THE SIMPLE EXPEDIENT OF
NOT CONSTRUCTING THE PROJECT.  THE POWER OF MUNICIPALITIES TO CONDITION
THE TERMS OF THEIR FRANCHISES IS ANALOGOUS.  SOUTHERN IOWA ELECTRIC CO.
V. CHARITON, 255 U.S. 539, 542; PADUCAH V. PADUCAH RY. CO., 261 U.S.
267, 273; GEORGIA RY. CO. V. DECATUR, 262 U.S. 432, 438-439; PUBLIC
SERVICE CO. V. ST. CLOUD, 265 U.S. 352, 355-356; FOX RIVER CO. V.
RAILROAD COMMISSION, 274 U.S. 651, 657. 

EVEN IF CONGRESS WERE WITHOUT POWER TO FORBID CONSTRUCTION OF THE DAM
OR OPERATION OF THE HYDROELECTRIC PLANT, IT MAY NEVERTHELESS FORBID THE
INTERSTATE MOVEMENT OF ELECTRIC ENERGY FROM RESPONDENT'S GENERATORS. 
TO OBTAIN THIS PRIVILEGE, RESPONDENT AS AN INTERSTATE PUBLIC UTILITY
MUST ACCEPT A LICENSE FROM THE FEDERAL POWER COMMISSION, JUST AS AN
INTERSTATE RAILROAD, MOTOR CARRIER, OR VESSEL MUST OBTAIN A LICENSE OR
A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FROM THE APPROPRIATE
FEDERAL AUTHORITY.  THE RECAPTURE PROVISION IS AN APPROPRIATE
CONTRACTUAL PRICE TO PAY FOR RECEIPT OF THAT PRIVILEGE. 

RESPONDENT CANNOT CHALLENGE THE AMORTIZATION RESERVE REQUIREMENT IF
IT IS BUILT UP OUT OF THE EXCESS OF ITS INCOME OVER A REASONABLE RATE
OF RETURN.  DAYTON-GOOSE CREEK RY. CO. V. UNITED STATES, 263 U.S. 456. 
ITS ATTACK, THEN, MUST BE DIRECTED AT THE REQUIREMENT THAT THE
REASONABLE RATE OF RETURN BE REFERRED TO THE NET INVESTMENT VALUE.  THE
GOVERNMENT HAS URGED THAT THE EQUIVALENT "PRUDENT INVESTMENT" BASIS OF
VALUATION IS CONSTITUTIONAL.  HERE CONGRESS HAS SPECIFICALLY PROVIDED
FOR THIS METHOD OF VALUATION, AND THE ARGUMENTS HAVE AUGMENTED STRENGTH
FROM THAT CONGRESSIONAL DETERMINATION. 

THE RECAPTURE PROVISION DOES NOT DENY JUST COMPENSATION BECAUSE IT
DOES NOT PROVIDE PAYMENT FOR ANY INCREASE IN PROPERTY VALUES DURING THE
PERIOD OF THE LICENSE.  IF ONE OF THE OBLIGATIONS OF A PUBLIC UTILITY
IS TO DEVOTE ITS PROPERTY TO THE PUBLIC USE FOR A FAIR RETURN UPON ITS
NET INVESTMENT, THEN IT IS SUBJECT TO PUBLIC EXPROPRIATION UPON THE
SAME BASIS.  IF THERE IS NO CONFISCATION FROM YEAR TO YEAR, THERE CAN
BE NONE WHEN THE PROJECT IS TAKEN OVER AT THE END OF THE LICENSE
PERIOD.  CERTAINLY THIS IS THE RESULT WHEN RESPONDENT, WITH KNOWLEDGE
OF THE PROVISIONS OF SEC. 14, UNDERTAKES THE CONSTRUCTION OF ITS
PROJECT. 

MR. RAYMOND T. JACKSON, WITH WHOM MESSRS.  A. HENRY MOSLE, CRESWELL
M. MICOU, FRASER M. HORN, WENDELL W. FORBES, M. W. BELCHER, JR., AND
JOHN L. ABBOT WERE ON THE BRIEF, FOR RESPONDENT. 

FINDINGS OF FACT WHICH ARE CONCURRED IN BY TWO LOWER COURTS WILL BE
ACCEPTED HERE IF SUPPORTED BY SUBSTANTIAL EVIDENCE.  ALABAMA POWER CO.
V. ICKES, 302 U.S. 464, 477.  THE RULE APPLIES TO A FINDING THAT A
STREAM IS NOT NAVIGABLE IN FACT IN INTERSTATE COMMERCE.  BREWER-ELLIOTT
OIL & GAS CO. V. UNITED STATES, 260 U.S. 77.  AND THERE IS NO
DISTINCTION BETWEEN FINDINGS OF BASIC OR EVIDENTIARY FACTS AND FINDINGS
OF ULTIMATE FACTS.  UNITED STATES V. O'DONNELL, 303 U.S. 501; TEXAS &
N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548; PICK MFG. CO. V. GENERAL
MOTORS CO., 299 U.S. 3, 4; UNITED STATES V. COMMERCIAL CREDIT CO., 286
U.S. 63; UNITED STATES V. CHEMICAL FOUNDATION, 272 U.S. 1; BAKER V.
SCHOFIELD, 243 U.S. 114. 

THE ARGUMENT THAT PETITIONER MERELY "DIFFERS" WITH THE LOWER COURTS
ON THE "LEGAL QUESTION" OF THE "WEIGHT AND RELEVANCE" OF THE EVIDENCE
IS DISINGENUOUS.  NO QUESTION OF THE ADMISSION OR REJECTION OF EVIDENCE
(AS A MATTER OF RELEVANCY OR OTHERWISE) IS PRESENTED BY PETITIONER; AND
DISAGREEMENT WITH THE "WEIGHT" ACCORDED VARIOUS SELECTED ITEMS OF
EVIDENCE BY THE COURTS BELOW PRESENTS NO ISSUE OF LAW FOR THIS COURT. 
NAVIGABILITY IN THE FEDERAL SENSE IS A QUESTION OF CONSTITUTIONAL
FACT.  CROWELL V. BENSON, 285 U.S. 22, 55; ARIZONA V. CALIFORNIA, 283
U.S. 423, 452.  NEITHER CONGRESSIONAL APPROPRIATIONS FOR IMPROVEMENTS,
NOR OTHER FEDERAL LEGISLATION OR ACTS OF FEDERAL OFFICERS OR AGENCIES
CAN ESTABLISH NAVIGABILITY OF A RIVER IN INTERSTATE COMMERCE.  THE
QUESTION IS ALWAYS ONE OF FACT TO BE DETERMINED BY THE COURTS. 
OKLAHOMA V. TEXAS, 258 U.S. 574, 585, 590-591.  INDEED, ABANDONMENT OF
A FEDERAL ATTEMPT TO MAKE A STREAM NAVIGABLE CREATES A PRESUMPTION OF
NONNAVIGABILITY.  OKLAHOMA V. TEXAS, SUPRA, 590.    NAVIGABLE WATERS OF
THE UNITED STATES ARE WATERS WHICH ARE NAVIGABLE IN FACT AND WHICH, BY
THEMSELVES OR BY UNITING WITH OTHER WATERS (NAVIGABLE IN FACT), FORM A
CONTINUOUS HIGHWAY OVER WHICH COMMERCE IS OR MAY BE CONDUCTED AMONG THE
STATES OR WITH FOREIGN COUNTRIES IN THE CUSTOMARY MODES IN WHICH
COMMERCE IS CONDUCTED BY WATER.  THE DANIEL BALL, 10 WALL.  557; THE
MONTELLO, 20 WALL.  430; UNITED STATES V. OREGON, 295 U.S. 1, 23. 

NAVIGABILITY IN FACT MUST EXIST UNDER "NATURAL AND ORDINARY
CONDITIONS."  UNITED STATES V. OREGON, SUPRA, 23; UNITED STATES V.
CRESS, 243 U.S. 316, 321, 325, 326; UNITED STATES V. HOLT STATE BANK,
270 U.S. 56.  EXCEPTIONAL USE, OR SUSCEPTIBILITY OF USE, IN TIMES OF
TEMPORARY HIGH WATER OR UNDER OTHER ABNORMAL CONDITIONS, IS
INSUFFICIENT.  OKLAHOMA V. TEXAS, SUPRA, 587; UNITED STATES V. RIO
GRANDE D. & I. CO., 174 U.S. 690, 699.  TO BE NAVIGABLE IN FACT, A
WATER MUST HAVE A "CAPACITY FOR GENERAL AND COMMON USEFULNESS FOR
PURPOSES OF TRADE AND COMMERCE."  UNITED STATES V. OREGON, SUPRA, 23. 
THE MONTELLO, 20 WALL.  430, 442-3; DONNELLY V. UNITED STATES, 228 U.S.
243, 262.  IT MUST BE USED OR SUSCEPTIBLE OF USE FOR "COMMERCE OF A
SUBSTANTIAL AND PERMANENT CHARACTER."  LEOVY V. UNITED STATES, 177 U.S.
621, 632; UNITED STATES V. DOUGHTON, 62 F.2D 936, 938.  "A THEORETICAL
OR POTENTIAL NAVIGABILITY OR ONE THAT IS TEMPORARY, PRECARIOUS AND
UNPROFITABLE, IS NOT SUFFICIENT."  HARRISON V. FITE, 148 F. 781, 784;
UNITED STATES V. DOUGHTON, SUPRA, 939.  WHERE "A STREAM HAS NEVER BEEN
IMPRESSED WITH THE CHARACTER OF NAVIGABILITY BY PAST USE IN COMMERCE,
... COMMERCE ACTUALLY IN ESSE OR AT LEAST  ...  IN POSSE IS ESSENTIAL
TO NAVIGABILITY," GULF & I. RY. CO. V. DAVIS, 26 F.2D 930, 933, AFF'D
31 F.2D 109, CITED WITH APPROVAL IN UNITED STATES V. DOUGHTON, SUPRA.
WHETHER PRACTICAL CAPACITY FOR CARRYING USEFUL, SUBSTANTIAL AND
PERMANENT COMMERCE EXISTS IS A QUESTION OF FACT.  UNITED STATES V.
UTAH, 283 U.S. 64, 87; CROWELL V. BENSON, 285 U.S. 22, 55. 

THE PHYSICAL CHARACTERISTICS ALONE ESTABLISH THAT NEW RIVER IN ITS
NATURAL AND ORDINARY CONDITION WAS NOT NAVIGABLE IN INTERSTATE COMMERCE
ANYWHERE IN ITS COURSE. 

ASIDE FROM THE COMPLETE ABSENCE OF EARLY USE, PETITIONER FAILED TO
ESTABLISH PRACTICAL USE, OR SUSCEPTIBILITY FOR PRACTICAL USE, IN
INTERSTATE COMMERCE.  THE LIMITED FEDERAL WORK DID NOT CHANGE ITS NON
NAVIGABLE CHARACTER. 

THE WATER POWER RESOURCES OF STREAMS, EITHER NAVIGABLE OR NON
NAVIGABLE, ARE NOT THE "HERITAGE" OF THE FEDERAL GOVERNMENT, BUT ARE
THE PROPERTY OF THE SEVERAL STATES, EXCEPT SO FAR AS GRANTED TO THEIR
CITIZENS.  THE UNITED STATES HAS NO TITLE OR PROPERTY RIGHT IN
NAVIGABLE STREAMS, THEIR WATERS, THEIR WATER POWER OR THE LANDS OVER
WHICH THEY FLOW; AND THE PROPERTY RIGHTS OF RIPARIAN OWNERS, ON BOTH
NAVIGABLE AND NON-NAVIGABLE STREAMS, ARE CREATED BY AND FLOW
EXCLUSIVELY FROM STATE SOVEREIGNTY.  PORT OF SEATTLE V. OREGON & W.R.
CO., 255 U.S. 56, 63; UNITED STATES V. CRESS, 243 U.S. 316; BORAX
CONSOLIDATED, LTD. V. LOS ANGELES, 296 U.S. 10; SHIVELY V. BOWLBY, 152
U.S. 1. 

THE RIGHT OR AUTHORITY OF THE UNITED STATES IN RELATION TO NAVIGABLE
WATERS IS LIMITED TO CONTROL FOR THE PURPOSES OF NAVIGATION.  PORT OF
SEATTLE V. OREGON & W.R. CO., SUPRA, 63; UNITED STATES V. OREGON, 295
U.S. 1, 14; KANSAS V. COLORADO, 206 U.S. 46.  ANY LEGISLATION
OSTENSIBLY FOR THE CONTROL OF NAVIGABLE WATERS WHICH HAS NO REAL OR
SUBSTANTIAL RELATION TO THEIR CONTROL FOR PURPOSES OF NAVIGATION IS
UNCONSTITUTIONAL AND VOID.  UNITED STATES V. RIVER ROUGE CO., 269 U.S.
411, 419; WISCONSIN V. ILLINOIS, 278 U.S. 367, 415. 

SO LONG AS THE STATES DO NOT SUBSTANTIALLY IMPAIR NAVIGABLE CAPACITY
OF FEDERAL NAVIGABLE WATERS, THE STATES MAY AUTHORIZE OR COMMAND SUCH
ALTERATION IN NATURAL FLOW OF THEIR STREAMS AS THEY DEEM IN THEIR BEST
INTERESTS.  KANSAS V. COLORADO, 206 U.S. 46, 94; UNITED STATES V. RIO
GRANDE IRRIGATION CO., 174 U.S. 690, 703; HEAD V. AMOSKEAG CO., 113
U.S. 9; HOLYOKE CO. V. LYMAN, 15 WALL.  500; OTIS CO. V. LUDLOW CO.,
201 U.S. 140, 152; CONNECTICUT V. MASSACHUSETTS, 282 U.S. 660, 670;
CALIFORNIA POWER CO. V. CEMENT CO., 295 U.S. 142, 163-4. 

THE UNITED STATES HAS NO AUTHORITY UNDER THE COMMERCE CLAUSE OR
OTHERWISE TO CONSTRUCT OR ACQUIRE A POWER PROJECT OR TO DEVELOP THE
WATERPOWER RESOURCES OF EITHER NAVIGABLE OR NON-NAVIGABLE STREAMS; AND
IT MAY NOT CONSTITUTIONALLY CREATE WATER POWER OTHER THAN THAT WHICH IS
INCIDENTALLY AND NECESSARILY PRODUCED BY WORKS CONSTRUCTED FOR SOME
CONSTITUTIONAL PURPOSE, AND THOSE WORKS MUST BE REASONABLY APPROPRIATE
FOR, AND HAVE A REAL AND SUBSTANTIAL RELATION TO, THE PERFORMANCE OF
THE CONSTITUTIONAL FUNCTION WHICH IN THE PREMISES IS LIMITED TO THE
CREATION OR IMPROVEMENT OF NAVIGABILITY.  ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 340; KAUKAUNA CO. V. GREEN BAY CO., 142 U.S.
254, 273; UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, 73;
ALABAMA POWER CO. V. GULF POWER CO., 283 F. 606, 613; MISSOURI V. UNION
E.L. & P. CO., 42 F.2D 692, 695.  THIS LIMITATION UPON PETITIONER'S
CONSTITUTIONAL AUTHORITY IS UNAFFECTED BY CONSIDERATIONS OF "ECONOMIC
FEASIBILITY" AND CAN NOT BE ESCAPED BY DESIGNATING A STATUTORY SCHEME
AS A "MULTIPLE PURPOSE PROJECT."  PETITIONER MAY NOT DEVELOP WATER
POWER MERELY FOR PROFIT, OR AS A PRIMARY PURPOSE, OR AS A SEPARATE AND
INDEPENDENT OBJECTIVE, MERELY BECAUSE IT CONCURRENTLY AUTHORIZES SOME
CONSTITUTIONAL STRUCTURE WHICH DOES NOT NECESSARILY OR INCIDENTALLY
CREATE THE WATER POWER. 

THE SERVITUDE IN FAVOR OF NAVIGATION, TO WHICH RIPARIAN LANDS ON
NAVIGABLE STREAMS ARE SUBJECT, IS A NATURAL SERVITUDE IMPLICIT IN THE
LOCATION OF THE PROPERTY AND LIMITED TO THE STREAM IN ITS NATURAL
STATE.  UNITED STATES V. CRESS, 243 U.S. 316, 321, 325; PUMPELLY V.
GREEN BAY CO., 13 WALL.  166; UNITED STATES V. LYNAH, 188 U.S. 445;
PACKER V. BIRD, 137 U.S. 661, 667; UNITED STATES V. RIO GRANDE
IRRIGATION CO., 174 U.S. 690, 698; LEOVY V. UNITED STATES, 177 U.S.
621, 631.  WHENEVER THAT SERVITUDE IS EXCEEDED BY ANY ACTION OF THE
FEDERAL GOVERNMENT IN THE IMPROVEMENT OF A NAVIGABLE WATER OR THE
CREATION OF AN ARTIFICIAL FEDERAL WATERWAY, IT TAKES PROPERTY FOR WHICH
IT MUST MAKE COMPENSATION.  UNITED STATES V. CRESS, SUPRA, 326; UNITED
STATES V. LYNAH, SUPRA; MONONGAHELA NAVIGATION CO. V. UNITED STATES,
148 U.S. 312, 336; UNITED STATES V. RIVER ROUGE CO., 269 U.S. 411, 419;
WISCONSIN V. ILLINOIS, 278 U.S. 367, 415, 418. 

THE IMPLIED AUTHORITY OVER INTERSTATE NAVIGABLE STREAMS ARISES SOLELY
FROM THE FACT THAT THEY ARE NATURAL HIGHWAYS OF INTERSTATE COMMERCE. 
IT DOES NOT DERIVE FROM THE FACT THAT THEY ARE WATER BUT FROM THE FACT
THAT THEY ARE NATURAL INSTRUMENTALITIES OF INTERSTATE COMMERCE.  THE
RESULT IS THAT THE FEDERAL GOVERNMENT MAY REGULATE, AND THEREFORE
REQUIRE A LICENSE FOR, THE PLACING OF STRUCTURES IN SUCH HIGHWAYS SO
LONG AS SUCH REGULATION HAS A REAL AND SUBSTANTIAL RELATION TO THE
PROTECTION OF NAVIGATION OR NAVIGABLE CAPACITY AND SO LONG AS IT DOES
NOT ATTEMPT TO MAKE THE EXERCISE OF THE LICENSING POWER THE VEHICLE OF
EXTENDING FEDERAL AUTHORITY INTO A FIELD CLOSED TO THE FEDERAL
GOVERNMENT BY THE CONSTITUTION.  UNITED STATES V. BUTLER, 297 U.S. 1;
LINDER V. UNITED STATES, 268 U.S. 5, 17; EMPLOYERS' LIABILITY CASES,
207 U.S. 463, 502; FROST TRUCKING CO. V. RAILROAD COMMISSION, 271 U.S.
583.  WITHIN THOSE LIMITATIONS, IT MAY MAKE THE ERECTION OR MAINTENANCE
OF A STRUCTURE IN A NAVIGABLE STREAM WITHOUT A FEDERAL LICENSE IPSO
FACTO UNLAWFUL.  GREENLEAF LUMBER CO. V. GARRISON, 237 U.S. 251. 

NEITHER CONSTRUCTION NOR OPERATION OF RESPONDENT'S PROJECT IS
INTERSTATE COMMERCE.  UTAH POWER CO. V. PFOST, 286 U.S. 165, 179-182;
SOUTH CAROLINA POWER CO. V. TAX COMMISSION, 52 F.2D 515, 524; AFF'D 286
U.S. 525. 

CONSTRUCTION OF RESPONDENT'S PROJECT WITHOUT A FEDERAL LICENSE MAY
NOT BE FORBIDDEN MERELY BECAUSE SOME PART OF THE ELECTRICITY WHICH IT
GENERATES WILL MOVE IN INTERSTATE COMMERCE.  UTAH POWER CO. V. PFOST,
SUPRA; KIDD V. PEARSON, 128 U.S. 1; CARTER V. CARTER COAL CO., 298 U.S.
238; SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495.  IN PART II OF THE
POWER ACT, CONGRESS EXPRESSLY DISCLAIMED ANY INTENTION TO ASSERT SUCH
AUTHORITY. 

PETITIONER ASSERTS THAT IT MAY PROHIBIT CONSTRUCTION OF RESPONDENT'S
PROJECT BECAUSE THE NATURAL FLOW OF ALL WATERS FROM THE SPRING HOUSES
TO THE SEA IS INTERSTATE COMMERCE.  THIS THEORY WOULD DESTROY THE
CONSTITUTIONAL DISTINCTION BETWEEN NAVIGABLE AND NON-NAVIGABLE WATERS
AND BETWEEN FEDERAL AND STATE WATERS, AND WOULD TRANSFER TO THE FEDERAL
GOVERNMENT CONTROL OVER, AND VIRTUAL OWNERSHIP OF, PRACTICALLY ALL OF
THE WATERS OF THE STATES. 

NONE OF THE CONDITIONS OF THE TENDERED LICENSE HAS ANY RELATION TO
THE PROTECTION OF NAVIGABLE CAPACITY.  SOME OF THEM REQUIRE A LICENSEE
TO DEVOTE ITS PROPERTY TO PUBLIC USE WITHOUT COMPENSATION, AND THEY
FURTHER ATTEMPT TO TRANSFER TO PETITIONER THE FULL POLICE POWER OF THE
STATE. 

THE "CAPTURE CLAUSE" INVADES THE RESERVED RIGHT OF THE STATES AND
THEIR PEOPLE, AND TAKES PRIVATE PROPERTY WITHOUT DUE PROCESS OF LAW. 

PETITIONER HAS NO CONSTITUTIONAL AUTHORITY TO TAKE OVER AND OPERATE
RESPONDENT'S PROJECT.  THE TAKING OF A CITIZEN'S PROPERTY FOR A PURPOSE
FOR WHICH THERE IS NO CONSTITUTIONAL AUTHORITY TO CONDEMN, IS A GROSS
INVASION OF HIS RIGHTS, NO MATTER WHAT COMPENSATION IS PAID.  THUS ALSO
MAY BE DESTROYED THE AUTHORITY OF THE STATES TO REGULATE THE
DEVELOPMENT OF THEIR OWN RESOURCES AND THE RIGHTS OF THEIR PEOPLE TO
UTILIZE SUCH RESOURCES UNDER STATE LAW IN CONFORMITY WITH STATE
POLICY. 

THE "CAPTURE" CLAUSE IS CONFISCATORY.  IT REQUIRES A LICENSEE TO
AGREE THAT PETITIONER MAY "TAKE OVER" THE PROJECT UPON PAYMENT TO THE
LICENSEE OF ITS "NET INVESTMENT" IN THE PROJECT, OR ITS FAIR VALUE AT
THE TIME OF TAKING, WHICHEVER IS THE LESS.  BOTH THE "NET INVESTMENT"
AND THE "FAIR VALUE" PRESCRIBED BY THE ACT NOT ONLY EXCLUDE "GOING
VALUE," BUT ALSO ANY VALUE FOR WATER RIGHTS OR LANDS IN EXCESS OF "THE
ACTUAL REASONABLE COST THEREOF AT THE TIME OF ACQUISITION" (NO MATTER
WHEN ACQUIRED, WHICH MAY HAVE BEEN YEARS BEFORE THE ISSUANCE OF THE
LICENSE) SO THAT PETITIONER WILL "TAKE" ANY INCREASE IN THE VALUE OF
LANDS OR WATER RIGHTS AND THE LICENSEE WILL BEAR THE LOSS OF ANY
DECREASE IN THEIR VALUE. 

IF SEVERE INFLATION SHOULD COME, PETITIONER MIGHT "TAKE OVER"
RESPONDENT'S PROPERTY UPON PAYING MERELY THE NUMBER OF DOLLARS (GREATLY
REDUCED IN PURCHASING POWER) WHICH HAD NOT BEEN ELIMINATED FROM THE
ORIGINAL INVESTMENT BY THE STATUTORY DEFINITIONS OF "NET INVESTMENT"
AND "FAIR VALUE," AND THEREBY MIGHT ACQUIRE SUCH PROPERTY FOR AN
INSIGNIFICANT FRACTION OF ITS REPRODUCTION VALUE, OF ITS REAL WORTH OR
OF THE ORIGINAL INVESTMENT. 

THE DEVELOPMENT OF WATER RESOURCES IS NO MORE A "NATIONAL PROBLEM"
THAN THE DEVELOPMENT OF ALL OTHER ECONOMIC RESOURCES OF THE STATES. 
THE CONSTITUTION GRANTS NO AUTHORITY TO REGULATE "NATIONAL PROBLEMS." 
KANSAS V. COLORADO, 206 U.S. 46; CARTER V. CARTER COAL CO., 298 U.S.
238, 291-292; UNITED STATES V. BUTLER, 297 U.S. 1.  HELVERING V. DAVIS,
301 U.S. 619, DEALING WITH THE POWER TO SPEND (BUT NOT TO REGULATE) FOR
THE GENERAL WELFARE, IS INAPPOSITE. 

THE FACT THAT ANY TRACT OF LAND IN THE STATE MIGHT BE ACQUIRED FOR
SOME CONSTITUTIONAL FEDERAL PURPOSE AND THEREBY BE REMOVED FROM THE
STATE TAX ROLL, DOES NOT SUSTAIN THE CONCLUSION THAT PETITIONER MIGHT
COMPEL ANY OR ALL LAND OWNERS IN THE STATE TO TURN OVER THEIR PROPERTY
FOR FEDERAL USE IN COMMERCIAL VENTURES NOT WITHIN PETITIONER'S
CONSTITUTIONAL AUTHORITY, AND THAT THIS WOULD NOT BE AN INVASION OF THE
RIGHTS OF THE STATE OR OF HER PEOPLE. 

EVEN ON A NAVIGABLE STREAM, THE RIGHT TO DEVELOP WATER POWER IS IN
THE RIPARIAN OWNER.  PETITIONER MAY REGULATE THE RIGHT ONLY IN SO FAR
AS NECESSARY TO PROTECT NAVIGATION OR NAVIGABLE CAPACITY.  PORT OF
SEATTLE V. OREGON & W.R. CO., 255 U.S. 56; PIKE RAPIDS POWER CO. V.
RAILROAD, 99 F.2D 902, 908, CERT. DEN., 305 U.S. 660. 

PETITIONER MAY NOT CONVERT THE PROJECT TO ITS OWN USE WITHOUT
COMPENSATION ON THE THEORY THAT IT COULD HAVE ELECTED TO ABATE IT AS A
PUBLIC NUISANCE.  MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S.
312; UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53. 

MUNICIPAL FRANCHISES ARE NOT ANALOGOUS.  NO ONE IS COMPELLED TO
ACCEPT A MUNICIPAL FRANCHISE TO USE ITS STREETS ON PENALTY OF BEING
BARRED FROM USE OF HIS OWN PROPERTY.  MOREOVER, MUNICIPALITIES IN SUCH
CASES EXERCISE FULL PROPRIETARY RIGHTS IN THEIR STREETS, POLICE POWER
AND THE AUTHORITY TO ENGAGE IN BUSINESS. 

FOX RIVER CO. V. COMMISSION, 274 U.S. 651, IS INAPPOSITE.  A STATE,
UNLIKE THE FEDERAL GOVERNMENT, HAS THE AUTHORITY TO ENGAGE IN THE
ELECTRIC POWER BUSINESS, AND IT MAY ESTABLISH SUCH LAW OF PROPERTY,
RIPARIAN AND OTHER, AS IT CHOOSES, SO LONG AS IT DOES NOT CONFISCATE
VESTED RIGHTS. 

PETITIONER ASSERTS THAT THE RIGHT TO ENGAGE IN INTERSTATE COMMERCE IS
A PRIVILEGE WHICH PETITIONER MAY GRANT, DENY OR BARTER UPON SUCH TERMS
AS IT MAY CHOOSE - INCLUDING THE "TAKING OVER" OF THE PROPERTY OF A
CITIZEN AS A CONDITION OF THE GRANT.  THIS IS TOTALITARIANISM RUN
RIOT.    "NET INVESTMENT" UNDER THE POWER ACT WOULD BE CONFISCATORY
EVEN IF "PRUDENT INVESTMENT" WERE REGARDED AS A CONSTITUTIONAL BASIS
FOR RATE MAKING OR FOR COMPENSATION IN CONDEMNATION.  BUT THAT BASIS
HAS BEEN CONSISTENTLY REJECTED BY THIS COURT.  SMYTH V. AMES, 169 U.S.
466; DRISCOLL V. EDISON CO., 307 U.S. 104.  MOREOVER, EVEN ON
PETITIONER'S ERRONEOUS HYPOTHESIS, IT WOULD HARDLY FOLLOW THAT A
UTILITY'S PROPERTY COULD BE TAKEN FOR LESS THAN FAIR VALUE.  THE
DECISIONS OF THIS COURT ARE TO THE CONTRARY. 

BY SPECIAL LEAVE OF COURT, MR. ABRAM P. STAPLES, ATTORNEY GENERAL,
FILED A BRIEF AND PARTICIPATED IN THE ORAL ARGUMENT (SEE 309 U.S. 636)
ON BEHALF OF THE STATE OF VIRGINIA, AS AMICUS CURIAE. 

VIRGINIA AND THE UNITED STATES EACH ENJOYS IN THIS COURT AN EQUAL
STATUS, AND THERE IS NO PRESUMPTION THAT THE EXERCISE BY EITHER OF A
POWER CLAIMED BY THE OTHER IS CONSTITUTIONAL OR PROPER. 

EVEN IF NEW RIVER WERE NAVIGABLE IN INTERSTATE COMMERCE A HALF
CENTURY OR MORE AGO, SUCH FACT ALONE WOULD NOT CONFER PERPETUAL
JURISDICTION ON THE FEDERAL GOVERNMENT TO REGULATE INTERSTATE
NAVIGATION IN THE STREAM.  THERE IS NO SUCH NAVIGATION NOW, AND NO
REASONABLE POSSIBILITY THAT THERE EVER WILL BE ANY, TO REGULATE. 
DISTINGUISHING ECONOMY LIGHT & POWER CO. V. UNITED STATES, 256 U.S.
113. 

THE FEDERAL POWER TO PROTECT NAVIGABLE WATERS IN INTERSTATE NAVIGABLE
STREAMS IS ITSELF IMPLIED FROM THE POWER TO REGULATE INTERSTATE
COMMERCE, AND IT CANNOT BE MADE THE BASIS OF INFERRING ADDITIONAL
REGULATORY POWER WHICH HAS NO RELATION TO REGULATION OF INTERSTATE
COMMERCE. 

REGULATION OF THE MANUFACTURE OF ELECTRIC ENERGY IN THE MANNER
PROVIDED FOR BY THE ACT IS NOT A REGULATION OF INTERSTATE COMMERCE, AND
THE EXERCISE OF ANY SUCH POWER BY THE FEDERAL GOVERNMENT, OVER THE
PROTEST OF THE STATE IN WHICH THE PLANT IS LOCATED, WOULD DESTROY OUR
DUAL SYSTEM OF GOVERNMENT. 

FEDERAL JURISDICTION TO CONTROL AND REGULATE, NOT ONLY THE
CONSTRUCTION OF A WATERPOWER PROJECT AFFECTING INTERSTATE NAVIGATION IN
SO FAR AS IT AFFECTS STREAM FLOW (WHICH VIRGINIA CONCEDES), BUT ALL
OTHER DETAILS OF THE PROJECT, EVEN THOUGH HAVING NO POSSIBLE RELATION
TO NAVIGATION, CANNOT BE PREDICATED ON THE CIRCUMSTANCE THAT EVERY
PLANT WHICH SENDS ITS PRODUCTS INTO INTERSTATE COMMERCE IS A BUSINESS
"AFFECTING INTERSTATE COMMERCE."  THERE IS NO LIMIT TO THE FEDERAL
COMMERCE POWER IF IT EXTENDS TO EVERY ACT AFFECTING INTERSTATE
COMMERCE. 

THE POWER TO PREVENT THE CONSTRUCTION DOES NOT IMPLY THE FURTHER
POWER TO EMBRACE IN A LICENSE OR PERMIT ANY AND EVERY REGULATORY
PROVISION WHICH THE FEDERAL GOVERNMENT MAY DESIRE, EVEN THOUGH WITHOUT
RELATION TO STREAM FLOW OR TO THE PROTECTION OF NAVIGATION OR NAVIGABLE
WATERS.  THE FEDERAL GOVERNMENT'S JURISDICTION AND POWERS OVER
NAVIGABLE WATERS ARE RESTRICTED TO THE REGULATION OF NAVIGATION AND THE
PROTECTION OF SUCH WATERS FROM HARMFUL OBSTRUCTIONS; AND, WHILE THE
STREAM IS SUBJECT TO A SERVITUDE IN FAVOR OF NAVIGATION AND INTERSTATE
COMMERCE, THE STATES THEMSELVES POSSESS ALL OTHER GOVERNMENTAL
JURISDICTION.  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 140. 

THE FEDERAL GOVERNMENT POSSESSES NO POWER TO PROHIBIT IN NAVIGABLE
WATERS OF THE UNITED STATES STRUCTURES WHICH ARE NOT HURTFUL OR HARMFUL
TO THE NAVIGABLE CAPACITY OF SUCH WATERS, OR TO NAVIGATION THEREIN. 
THE ONLY POWER THAT IT HAS OVER SUCH HARMLESS STRUCTURES IS THAT OF
DECIDING WHETHER THEY ARE IN FACT HARMLESS.  AND IT WOULD BE AN OBVIOUS
ABUSE OF THE POWER TO DECIDE THIS QUESTION, TO EXACT, AS A CONDITION TO
A FAVORABLE DECISION, THE ADDITIONAL POWER TO REGULATE MATTERS IN NO
WAY RELATED TO NAVIGATION OR THE PROTECTION OF SUCH WATERS. 

THE PROPERTY RIGHTS AND GOVERNMENTAL CONTROL OVER STREAMS, EXCEPT IN
SO FAR AS SUCH CONTROL RELATES TO NAVIGATION AND THE PROTECTION OF
NAVIGABLE WATERS, RESIDE IN THE STATES, AND THESE PROPERTY RIGHTS CAN
BE CONVERTED INTO SO-CALLED "NATIONAL RESOURCES" ONLY BY GRANT BY THE
STATES OR BY CONSTITUTIONAL AMENDMENT. 

THE POWER ACT CONTAINS NOTHING ABOUT FLOOD CONTROL, AND THE
REGULATORY POWERS CONFERRED ON THE COMMISSION, EXCEPT IN SO FAR AS THEY
RELATE TO THE CONTROL OF STREAM FLOW FOR THE PROTECTION OF NAVIGATION,
HAVE NO MORE RELATION TO FLOOD CONTROL THAN THEY DO TO NAVIGATION. 

ALTHOUGH THE FEDERAL GOVERNMENT COULD ITSELF CONSTRUCT A PROJECT IN
AID OF NAVIGATION AND FLOOD CONTROL, IT WOULD HAVE TO ACQUIRE THE
PROPERTY RIGHTS INVOLVED AND ERECT THE STRUCTURE AT ITS OWN EXPENSE. 
THIS IS ESSENTIALLY DIFFERENT FROM UNDERTAKING TO DEDICATE, AND IN
EFFECT TO CONFISCATE, THE PROPERTIES OF THE STATES, WITHOUT THEIR
CONSENT, FOR SUCH A PURPOSE. 

THE PROVISIONS OF THE POWER ACT WHICH AUTHORIZE THE FEDERAL
GOVERNMENT TO TAKE OVER THE PROPERTY OF VIRGINIA, CONSISTING OF THE BED
OF THE RIVER AND THE USUFRUCT OF THE STREAM FLOW, WITHOUT COMPENSATION
TO THE STATE, VIOLATE ART. 4, SEC. 3, CL. 2, AS WELL AS THE FIFTH
AMENDMENT, OF THE CONSTITUTION. 

EVEN IF THE FEDERAL GOVERNMENT HAD THE POWER TO REGULATE THE
MANUFACTURE OF ELECTRICAL ENERGY, THE REGULATION OF THE CONSTRUCTION
AND OPERATION OF HYDROELECTRIC GENERATING PLANTS, WHERE THERE IS NO
SUCH REGULATION OF PLANTS OPERATED BY STEAM, IS ARBITRARY AND WOULD
RESULT IN NEEDLESSLY CONFUSING THE EFFORTS OF VIRGINIA TO REGULATE THE
INDUSTRY AS A WHOLE. 

VIRGINIA IS ENTITLED TO A DECISION NOW ON THE CONSTITUTIONALITY OF
THE CAPTURE CLAUSE, AS WELL AS THE OTHER LICENSE PROVISIONS OF THE ACT,
SO AS TO ENABLE HER TO PROCEED WITH THE DEVELOPMENT OF HER MANY
VALUABLE STREAMS. 

BY LEAVE OF COURT, BRIEFS OF AMICI CURIAE WERE FILED ON BEHALF OF THE
STATES OF KENTUCKY, BY HUBERT MEREDITH, ATTORNEY GENERAL, AND M. B.
HOLIFIELD, ASSISTANT ATTORNEY GENERAL; WEST VIRGINIA, BY CLARENCE W.
MEADOWS, ATTORNEY GENERAL; WISCONSIN, BY JOHN E. MARTIN, ATTORNEY
GENERAL, NEWELL S. BOARDMAN, ASSISTANT ATTORNEY GENERAL, AND MR. ADOLPH
KANNEBERG. 

A JOINT BRIEF WAS FILED:  FOR ALABAMA, BY THOMAS S. LAWSON, ATTORNEY
GENERAL; ARIZONA, BY JOE CONWAY, ATTORNEY GENERAL; CALIFORNIA, BY EARL
WARREN, ATTORNEY GENERAL; COLORADO, BY BYRON G. ROGERS, ATTORNEY
GENERAL; CONNECTICUT, BY FRANCIS A. PALLOTTI, ATTORNEY GENERAL;
DELAWARE, BY JAMES R. MORFORD, ATTORNEY GENERAL; FLORIDA, BY GEORGE
COUPER GIBBS, ATTORNEY GENERAL; IDAHO, BY J. W. TAYLOR, ATTORNEY
GENERAL; ILLINOIS, BY JOHN E. CASSIDY, ATTORNEY GENERAL; IOWA, BY JOHN
M. RANKIN, ATTORNEY GENERAL; KANSAS, BY JAY S. PARKER, ATTORNEY
GENERAL; KENTUCKY, BY HUBERT MEREDITH, ATTORNEY GENERAL, AND M. B.
HOLIFIELD, ASSISTANT ATTORNEY GENERAL; LOUISIANA, BY EUGENE STANLEY,
ATTORNEY GENERAL; MAINE, BY FRANZ E. BURKETT, ATTORNEY GENERAL;
MARYLAND, BY WILLIAM C. WALSH, ATTORNEY GENERAL; MASSACHUSETTS, BY PAUL
A. DEVER, ATTORNEY GENERAL; MICHIGAN, BY THOMAS READ, ATTORNEY GENERAL;
MINNESOTA, BY J. A. A. BURNQUIST, ATTORNEY GENERAL; MISSISSIPPI, BY
GREEK L. RICE, ATTORNEY GENERAL; MISSOURI, BY ROY MCKITTRICK, ATTORNEY
GENERAL; NEBRASKA, BY WALTER R. JOHNSON, ATTORNEY GENERAL; NEVADA, BY
GRAY MASHBURN, ATTORNEY GENERAL; NEW HAMPSHIRE, BY THOMAS P. CHENEY,
ATTORNEY GENERAL; NEW JERSEY, BY DAVID T. WILENTZ, ATTORNEY GENERAL;
NEW MEXICO, BY FILO M. SEDILLO, ATTORNEY GENERAL; NEW YORK, BY JOHN J.
BENNETT, JR., ATTORNEY GENERAL, AND HENRY EPSTEIN, SOLICITOR GENERAL;
NORTH CAROLINA, BY HARRY MCMULLAN, ATTORNEY GENERAL; NORTH DAKOTA, BY
ALVIN C. STRUTZ, ATTORNEY GENERAL; OHIO, BY THOMAS J. HERBERT, ATTORNEY
GENERAL; OREGON, BY I. H. VAN WINKLE, ATTORNEY GENERAL; PENNSYLVANIA,
BY CLAUDE T. RENO, ATTORNEY GENERAL; RHODE ISLAND, BY LOUIS V.
JACKVONY, ATTORNEY GENERAL; SOUTH DAKOTA, BY LEO A. TEMMEY, ATTORNEY
GENERAL; TENNESSEE, BY ROY H. BEELER, ATTORNEY GENERAL; UTAH, BY JOSEPH
CHEZ, ATTORNEY GENERAL; VERMONT, BY LAWRENCE C. JONES, ATTORNEY
GENERAL; VIRGINIA, BY ABRAM P. STAPLES, ATTORNEY GENERAL; WASHINGTON,
BY SMITH TROY, ATTORNEY GENERAL; AND WYOMING, BY EWING T. KERR,
ATTORNEY GENERAL - SETTING FORTH THE POSITION OF THE STATES IN REGARD
TO THE RELATIVE POWERS OF THE STATES AND THE UNITED STATES OVER
NAVIGABLE AND NON-NAVIGABLE WATERS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE SCOPE OF THE FEDERAL COMMERCE POWER IN
RELATION TO CONDITIONS IN LICENSES, REQUIRED BY THE FEDERAL POWER
COMMISSION, FOR THE CONSTRUCTION OF HYDROELECTRIC DAMS IN NAVIGABLE
RIVERS OF THE UNITED STATES.  TO REACH THIS ISSUE REQUIRES,
PRELIMINARILY, A DECISION AS TO THE NAVIGABILITY OF THE NEW RIVER, A
WATERCOURSE FLOWING THROUGH VIRGINIA AND WEST VIRGINIA.  THE DISTRICT
COURT AND THE CIRCUIT COURT OF APPEALS HAVE BOTH HELD THAT THE NEW
RIVER IS NOT NAVIGABLE, AND THAT THE UNITED STATES CANNOT ENJOIN THE
RESPONDENT FROM CONSTRUCTING AND PUTTING INTO OPERATION A HYDROELECTRIC
DAM SITUATED IN THE RIVER JUST ABOVE RADFORD, VIRGINIA. 

UNLAWFUL TO CONSTRUCT A DAM IN ANY NAVIGABLE WATER OF THE UNITED STATES
WITHOUT THE CONSENT OF CONGRESS.  FN1  BY THE FEDERAL WATER POWER ACT
OF 1920,  FN2  HOWEVER, CONGRESS CREATED A FEDERAL POWER COMMISSION
WITH AUTHORITY TO LICENSE THE CONSTRUCTION OF SUCH DAMS UPON SPECIFIED
CONDITIONS.  SECTION 23 OF THAT ACT PROVIDED THAT PERSONS INTENDING TO
CONSTRUCT A DAM IN A NONNAVIGABLE STREAM MAY FILE A DECLARATION OF
INTENTION WITH THE COMMISSION.  IF AFTER INVESTIGATION THE COMMISSION
FINDS THAT THE INTERESTS OF INTERSTATE OR FOREIGN COMMERCE WILL NOT BE
AFFECTED, PERMISSION SHALL BE GRANTED FOR THE CONSTRUCTION.  OTHERWISE
CONSTRUCTION CANNOT GO FORWARD WITHOUT A LICENSE. 

THE RADFORD DAM PROJECT WAS INITIATED BY RESPONDENT'S PREDECESSOR,
THE NEW RIVER DEVELOPMENT COMPANY, WHICH FILED ITS DECLARATION OF
INTENTION WITH THE FEDERAL POWER COMMISSION ON JUNE 25, 1925.  THE
COMMISSION REQUESTED A REPORT FROM GENERAL HARRY TAYLOR, THEN CHIEF OF
ENGINEERS OF THE WAR DEPARTMENT.  HE FIRST REPORTED THAT THE RIVER WAS
NAVIGABLE, AND ALSO THAT WHILE THE WATER FLOW FROM THE DAM, IF NOT
PROPERLY REGULATED, COULD HAVE AN ADVERSE EFFECT ON NAVIGATION DURING
LOW WATER STAGES IN THE KANAWHA RIVER (OF WHICH THE NEW WAS ONE OF THE
PRINCIPAL TRIBUTARIES), SUCH POSSIBLE ADVERSE EFFECT WOULD NOT WARRANT
REFUSING A LICENSE TO CONSTRUCT THE DAM IF CONTROL WERE MAINTAINED BY
THE UNITED STATES.  ON REVIEW AT THE COMMISSION'S REQUEST, HOWEVER,
GENERAL TAYLOR RENDERED A SECOND REPORT, CONCLUDING THAT THE NEW RIVER
IN ITS PRESENT CONDITION WAS NOT NAVIGABLE AND THAT NAVIGATION ON THE
KANAWHA WOULD NOT BE ADVERSELY AFFECTED BY THE PROPOSED POWER
DEVELOPMENT.  ON MARCH 2, 1926, THE COMMISSION HELD A HEARING ON THE
DECLARATION; THE ONLY EVIDENCE THEN SUBMITTED WAS GENERAL TAYLOR'S
SECOND REPORT. 

RESPONDENT, THE APPALACHIAN ELECTRIC POWER COMPANY, TOOK AN
ASSIGNMENT OF THE DECLARATION OF INTENTION ON AUGUST 30, 1926, AND
SEVERAL DAYS LATER FILED AN APPLICATION FOR A LICENSE ON THE
COMMISSION'S SUGGESTION THAT THIS WOULD EXPEDITE MATTERS AND COULD BE
WITHDRAWN IF IT LATER DEVELOPED THAT NO FEDERAL LICENSE WAS REQUIRED. 
IN OCTOBER, THE DISTRICT ENGINEER OF THE WAR DEPARTMENT HELD A PUBLIC
HEARING AT RADFORD.  ON JUNE 1, 1927, THE COMMISSION MADE A FINDING
THAT THE NEW RIVER WAS NOT "NAVIGABLE WATERS" WITHIN THE DEFINITION IN
SEC. 3 OF THE FEDERAL WATER POWER ACT OF 1920 BUT THAT (UNDER SEC. 23
OF THE ACT) THE PROJECT WOULD AFFECT THE INTERESTS OF INTERSTATE AND
FOREIGN COMMERCE.  ON JULY 1, 1927, THE COMMISSION TENDERED TO
RESPONDENT A STANDARD FORM LICENSE, WHICH THE RESPONDENT REFUSED, IN
APRIL, 1928, PRINCIPALLY ON THE GROUND THAT THE CONDITIONS - ESPECIALLY
THOSE CONCERNING RATES, ACCOUNTS AND EVENTUAL ACQUISITION - WERE
UNRELATED TO NAVIGATION.  IN FEBRUARY, 1930, RESPONDENT REITERATED THAT
ITS PROJECT WAS NOT WITHIN THE COMMISSION'S JURISDICTION, BUT
NEVERTHELESS OFFERED TO ACCEPT A "MINOR-PART" LICENSE  FN3 CONTAINING
ONLY SUCH CONDITIONS AS WOULD PROTECT THE INTERESTS OF THE UNITED
STATES IN NAVIGATION.  IN SEPTEMBER, 1930, ATTORNEY GENERAL MITCHELL
ADVISED THE COMMISSION THAT IT COULD PROPERLY ISSUE SUCH A MINOR-PART
LICENSE; FN4  THE QUESTION SUBMITTED BY THE COMMISSION HAD STATED THAT
THE NEW RIVER WAS NEITHER NAVIGATED NOR NAVIGABLE IN FACT.  ON NOVEMBER
25, THE COMMISSION "DECLINED TO TAKE ACTION ON THE APPLICATION
FAVORABLE OR ADVERSE," ON THE GROUND THAT A COURT ADJUDICATION WAS
DESIRABLE.  AFTER THE ESTABLISHMENT OF THE COMMISSION AS AN INDEPENDENT
AGENCY,  FN5  IT HELD ANOTHER HEARING IN FEBRUARY, 1931; IN APRIL IT
DENIED THE APPLICATION FOR A MINOR-PART LICENSE, DIRECTED THAT THE
RESPONDENT BE TENDERED A STANDARD FORM LICENSE UNDER THE ACT, AND
ORDERED IT NOT TO PROCEED WITHOUT SUCH A LICENSE.  A MINORITY OF THE
COMMISSION THEN FAVORED A FINDING THAT THE NEW RIVER WAS NAVIGABLE; THE
MAJORITY, HOWEVER, THOUGHT THAT QUESTION WAS FOR THE COURTS AND THAT
THE COMMISSION'S JURISDICTION WAS PROPERLY BASED UPON SEC. 23 OF THE
FEDERAL WATER POWER ACT. 

ON JUNE 8, 1931, THE RESPONDENT BROUGHT AN ACTION AGAINST THE
COMMISSION TO REMOVE A CLOUD ON ITS TITLE AND TO RESTRAIN INTERFERENCE
WITH THE USE OF ITS PROPERTY.  THIS CASE WAS DISMISSED FOR
JURISDICTIONAL REASONS.  FN6  WHILE IT WAS PENDING, ON OCTOBER 12,
1932, THE COMMISSION WITHOUT NOTICE ADOPTED A RESOLUTION THAT THE NEW
RIVER, FROM THE MOUTH OF WILSON CREEK, VIRGINIA, NORTH, WAS NAVIGABLE. 

THE RESPONDENT BEGAN CONSTRUCTION WORK ON THE DAM ABOUT JUNE 1,
1934.  ON MAY 6, 1935, THE UNITED STATES FILED THIS BILL FOR AN
INJUNCTION AGAINST THE CONSTRUCTION OR MAINTENANCE OF THE PROPOSED DAM
OTHERWISE THAN UNDER A LICENSE FROM THE FEDERAL POWER COMMISSION, AND
IN THE ALTERNATIVE A MANDATORY ORDER OF REMOVAL.  IT ALLEGED THAT THE
NEW RIVER IS NAVIGABLE; THAT THE DAM WOULD CONSTITUTE AN OBSTRUCTION TO
NAVIGATION AND WOULD IMPAIR THE NAVIGABLE CAPACITY OF THE NAVIGABLE
WATERS OF THE UNITED STATES ON THE NEW, KANAWHA AND OHIO RIVERS; THAT
THE COMMISSION HAD FOUND THE DAM WOULD AFFECT THE INTERESTS OF
INTERSTATE OR FOREIGN COMMERCE; AND THAT ITS CONSTRUCTION THEREFORE
VIOLATED BOTH THE RIVERS AND HARBORS ACT AND THE FEDERAL WATER POWER
ACT.  RESPONDENT DENIED THESE ALLEGATIONS, AND ALSO SET FORTH A NUMBER
OF SEPARATE DEFENSES BASED ON THE ASSUMPTION THAT THE NEW RIVER WAS
NONNAVIGABLE.  THE FORTIETH AND FORTY-FIRST PARAGRAPHS OF THE ANSWER,
HOWEVER, SET FORTH DEFENSES RELIED ON BY THE RESPONDENT EVEN IF THE
RIVER WERE HELD NAVIGABLE.  THE SUBSTANCE OF THESE WAS (1) THAT THE
CONDITIONS OF ANY FEDERAL LICENSE MUST BE STRICTLY LIMITED TO THE
PROTECTION OF THE NAVIGABLE CAPACITY OF THE WATERS OF THE UNITED
STATES; AND (2) THAT THE COMMISSION'S REFUSAL TO GRANT THE MINOR-PART
LICENSE CONTAINING ONLY SUCH CONDITIONS WAS UNLAWFUL, AND THAT ANY
RELIEF SHOULD BE CONDITIONED UPON THE COMMISSION'S GRANTING RESPONDENT
SUCH A LICENSE.  BY THESE DEFENSES RESPONDENT PUT IN QUESTION - IN THE
EVENT OF AN ADVERSE HOLDING ON NAVIGABILITY - THE VALIDITY OF THE
CONDITIONS OF THE ACT CARRIED OVER INTO THE STANDARD FORM LICENSE WHICH
RELATE TO ACCOUNTS, CONTROL OF OPERATION AND EVENTUAL ACQUISITION OF
THE PROJECT AT THE EXPIRATION OF THE LICENSE. 

AFTER TRIAL, IN AN OPINION REINFORCED BY FORMAL FINDINGS OF FACT AND
LAW, THE DISTRICT COURT DECIDED THAT THE NEW RIVER IS NOT A NAVIGABLE
WATER OF THE UNITED STATES; THAT RESPONDENT'S DAM WOULD NOT OBSTRUCT
THE NAVIGABLE CAPACITY OF THE KANAWHA OR ANY OTHER NAVIGABLE RIVER, AND
WOULD NOT AFFECT THE INTERESTS OF INTERSTATE COMMERCE; THAT THE POWER
COMMISSION'S FINDINGS ON THESE MATTERS WERE NOT FINAL BUT SUBJECT TO
THE DETERMINATION OF THE COURTS; FN7  THAT THE FEDERAL WATER POWER ACT
DID NOT VEST IN THE COMMISSION AUTHORITY TO REQUIRE A LICENSE IN A
NONNAVIGABLE RIVER; THAT EVEN IF THE COMMISSION HAD AUTHORITY TO
REQUIRE SOME LICENSE FOR A DAM IN NON-NAVIGABLE WATERS, IT COULD NOT
IMPOSE CONDITIONS HAVING NO RELATION TO THE PROTECTION OF THE NAVIGABLE
CAPACITY OF WATERS OF THE UNITED STATES; AND THAT ITS EFFORT TO IMPOSE
UPON RESPONDENT A LICENSE CONTAINING UNLAWFUL CONDITIONS BARRED THE
UNITED STATES FROM RELIEF.  THE DISTRICT JUDGE THEREFORE DISMISSED THE
BILL, BUT LEFT IT OPEN TO THE GOVERNMENT TO ASSERT ITS RIGHTS IF FUTURE
OPERATION OF THE PROJECT INTERFERED WITH THE NAVIGABLE CAPACITY OF THE
WATERS OF THE UNITED STATES.  THE CIRCUIT COURT OF APPEALS, WITH ONE
JUDGE DISSENTING, AFFIRMED.  WE GRANTED CERTIORARI.  FN8 

CONCURRENT FINDINGS.  THE DISTRICT COURT'S FINDING THAT THE NEW RIVER
WAS NOT NAVIGABLE WAS CONCURRED IN BY THE CIRCUIT COURT OF APPEALS
AFTER A CAREFUL APPRAISAL OF THE EVIDENCE IN THE RECORD.  FN9  BOTH
COURTS STATED IN DETAIL THE CIRCUMSTANTIAL FACTS RELATING TO THE USE OF
THE RIVER AND ITS PHYSICAL CHARACTERISTICS, SUCH AS VOLUME OF WATER,
SWIFTNESS AND OBSTRUCTIONS.  THERE IS NO REAL DISAGREEMENT BETWEEN THE
PARTIES HERE CONCERNING THESE PHYSICAL AND HISTORICAL EVIDENTIARY
FACTS.  BUT THERE ARE SHARP DIVERGENCIES OF VIEW AS TO THEIR
RELIABILITY AS INDICIA OF NAVIGABILITY AND THE WEIGHT WHICH SHOULD BE
ATTRIBUTED TO THEM.  THE DISAGREEMENT IS OVER THE ULTIMATE CONCLUSION
UPON NAVIGABILITY TO BE DRAWN FROM THIS UNCONTROVERTED EVIDENCE. 

THE RESPONDENT RELIES UPON THIS COURT'S STATEMENT THAT "EACH
DETERMINATION AS TO NAVIGABILITY MUST STAND ON ITS OWN FACTS,"  FN10
AND UPON THE CONVENTIONAL RULE THAT FACTUAL FINDINGS CONCURRED IN BY
TWO COURTS WILL BE ACCEPTED BY THIS COURT UNLESS CLEAR ERROR IS SHOWN. 
FN11 

IN CASES INVOLVING THE NAVIGABILITY OF WATER COURSES, THIS COURT,
WITHOUT EXPRESSLY PASSING ON THE FINALITY OF THE FINDINGS, ON SOME
OCCASIONS HAS ENTERED INTO CONSIDERATION OF THE FACTS FOUND BY TWO
COURTS TO DETERMINE FOR ITSELF WHETHER THE COURTS HAVE CORRECTLY
APPLIED TO THE FACTS FOUND THE PROPER LEGAL TESTS.  FN12  WHEN WE DEAL
WITH ISSUES SUCH AS THESE BEFORE US, FACTS AND THEIR CONSTITUTIONAL
SIGNIFICANCE ARE TOO CLOSELY CONNECTED TO MAKE THE TWO-COURT RULE A
SERVICEABLE GUIDE.  THE LEGAL CONCEPT OF NAVIGABILITY EMBRACES BOTH
PUBLIC AND PRIVATE INTERESTS.  IT IS NOT TO BE DETERMINED BY A FORMULA
WHICH FITS EVERY TYPE OF STREAM UNDER ALL CIRCUMSTANCES AND AT ALL
TIMES.  OUR PAST DECISIONS HAVE TAKEN DUE ACCOUNT OF THE CHANGES AND
COMPLEXITIES IN THE CIRCUMSTANCES OF A RIVER.  WE DO NOT PURPORT NOW TO
LAY DOWN ANY SINGLE DEFINITIVE TEST.  WE DRAW FROM THE PRIOR DECISIONS
IN THIS FIELD AND APPLY THEM, WITH DUE REGARD TO THE DYNAMIC NATURE OF
THE PROBLEM, TO THE PARTICULAR CIRCUMSTANCES PRESENTED BY THE NEW
RIVER.  TO THESE CIRCUMSTANCES CERTAIN JUDICIAL STANDARDS ARE TO BE
APPLIED FOR DETERMINING WHETHER THE COMPLEX OF THE CONDITIONS IN
RESPECT TO ITS CAPACITY FOR USE IN INTERSTATE COMMERCE RENDER IT A
NAVIGABLE STREAM WITHIN THE CONSTITUTIONAL REQUIREMENTS.  BOTH THE
STANDARDS AND THE ULTIMATE CONCLUSION INVOLVE QUESTIONS OF LAW
INSEPARABLE FROM THE PARTICULAR FACTS TO WHICH THEY ARE APPLIED. 

NAVIGABILITY.  THE POWER OF THE UNITED STATES OVER ITS WATERS WHICH
ARE CAPABLE OF USE AS INTERSTATE HIGHWAYS ARISES FROM THE COMMERCE
CLAUSE OF THE CONSTITUTION.  "THE CONGRESS SHALL HAVE POWER  ...  TO
REGULATE COMMERCE  ...  AMONG THE SEVERAL STATES."  IT WAS HELD EARLY
IN OUR HISTORY THAT THE POWER TO REGULATE COMMERCE NECESSARILY INCLUDED
POWER OVER NAVIGATION.  FN13  TO MAKE ITS CONTROL EFFECTIVE THE
CONGRESS MAY KEEP THE "NAVIGABLE WATERS OF THE UNITED STATES" OPEN AND
FREE AND PROVIDE BY SANCTIONS AGAINST ANY INTERFERENCE WITH THE
COUNTRY'S WATER ASSETS.  FN14 IT MAY LEGISLATE TO FORBID OR LICENSE
DAMS IN THE WATERS; FN15  ITS POWER OVER IMPROVEMENTS FOR NAVIGATION IN
RIVERS IS "ABSOLUTE."  FN16 

THE STATES POSSESS CONTROL OF THE WATERS WITHIN THEIR BORDERS,
"SUBJECT TO THE ACKNOWLEDGED JURISDICTION OF THE UNITED STATES UNDER
THE CONSTITUTION IN REGARD TO COMMERCE AND THE NAVIGATION OF THE WATERS
OF RIVERS."  FN17  IT IS THIS SUBORDINATE LOCAL CONTROL THAT, EVEN AS
TO NAVIGABLE RIVERS, CREATES BETWEEN THE RESPECTIVE GOVERNMENTS A
CONTRARIETY OF INTERESTS RELATING TO THE REGULATION AND PROTECTION OF
WATERS THROUGH LICENSES, THE OPERATION OF STRUCTURES AND THE
ACQUISITION OF PROJECTS AT THE END OF THE LICENSE TERM.  BUT THERE IS
NO DOUBT THAT THE UNITED STATES POSSESSES THE POWER TO CONTROL THE
ERECTION OF STRUCTURES IN NAVIGABLE WATERS. 

THE NAVIGABILITY OF THE NEW RIVER IS, OF COURSE, A FACTUAL QUESTION
FN18  BUT TO CALL IT A FACT CANNOT OBSCURE THE DIVERSE ELEMENTS THAT
ENTER INTO THE APPLICATION OF THE LEGAL TESTS AS TO NAVIGABILITY.  WE
ARE DEALING HERE WITH THE SOVEREIGN POWERS OF THE UNION, THE NATION'S
RIGHT THAT ITS WATERWAYS BE UTILIZED FOR THE INTERESTS OF THE COMMERCE
OF THE WHOLE COUNTRY.  IT IS OBVIOUS THAT THE USES TO WHICH THE STREAMS
MAY BE PUT VARY FROM THE CARRIAGE OF OCEAN LINERS TO THE FLOATING OUT
OF LOGS; FN19  THAT THE DENSITY OF TRAFFIC VARIES EQUALLY WIDELY FROM
THE BUSY HARBORS OF THE SEACOAST TO THE SPARSELY SETTLED REGIONS OF THE
WESTERN MOUNTAINS.  FN20  THE TESTS AS TO NAVIGABILITY MUST TAKE THESE
VARIATIONS INTO CONSIDERATION. 

BOTH LOWER COURTS BASED THEIR INVESTIGATION PRIMARILY UPON THE
GENERALLY ACCEPTED DEFINITION OF THE DANIEL BALL.  FN21  IN SO DOING
THEY WERE IN ACCORD WITH THE RULINGS OF THIS COURT ON THE BASIC CONCEPT
OF NAVIGABILITY.  FN22  EACH APPLICATION OF THIS TEST, HOWEVER, IS APT
TO UNCOVER VARIATIONS AND REFINEMENTS WHICH REQUIRE FURTHER
ELABORATION. 

IN THE LOWER COURTS AND HERE, THE GOVERNMENT URGES THAT THE PHRASE
"SUSCEPTIBLE OF BEING USED, IN THEIR ORDINARY CONDITION," IN THE DANIEL
BALL DEFINITION, SHOULD NOT BE CONSTRUED AS ELIMINATING THE POSSIBILITY
OF DETERMINING NAVIGABILITY IN THE LIGHT OF THE EFFECT OF REASONABLE
IMPROVEMENTS.  THE DISTRICT COURT THOUGHT THE ARGUMENT INAPPLICABLE. 
FN23 

THE CIRCUIT COURT OF APPEALS SAID:  "IF THIS STRETCH OF THE RIVER WAS
NOT NAVIGABLE IN FACT IN ITS UNIMPROVED CONDITION, IT IS NOT TO BE
CONSIDERED NAVIGABLE MERELY BECAUSE IT MIGHT HAVE BEEN MADE NAVIGABLE
BY IMPROVEMENTS WHICH WERE NOT IN FACT MADE.  OF COURSE IF THE
IMPROVEMENTS HAD BEEN MADE THE QUESTION OF FACT MIGHT HAVE BEEN
DIFFERENT."  FN24 

TO APPRAISE THE EVIDENCE OF NAVIGABILITY ON THE NATURAL CONDITION
ONLY OF THE WATERWAY IS ERRONEOUS.  ITS AVAILABILITY FOR NAVIGATION
MUST ALSO BE CONSIDERED.  "NATURAL AND ORDINARY CONDITION"  FN25
REFERS TO VOLUME OF WATER, THE GRADIENTS AND THE REGULARITY OF THE
FLOW.  A WATERWAY, OTHERWISE SUITABLE FOR NAVIGATION, IS NOT BARRED
FROM THAT CLASSIFICATION MERELY BECAUSE ARTIFICIAL AIDS MUST MAKE THE
HIGHWAY SUITABLE FOR USE BEFORE COMMERCIAL NAVIGATION MAY BE
UNDERTAKEN.  CONGRESS HAS RECOGNIZED THIS IN SEC. 3 OF THE WATER POWER
ACT BY DEFINING "NAVIGABLE WATERS" AS THOSE "WHICH EITHER IN THEIR
NATURAL OR IMPROVED CONDITION" ARE USED OR SUITABLE FOR USE.  THE
DISTRICT COURT IS QUITE RIGHT IN SAYING THERE ARE OBVIOUS LIMITS TO
SUCH IMPROVEMENTS AS AFFECTING NAVIGABILITY.  THESE LIMITS ARE
NECESSARILY A MATTER OF DEGREE.  FN26  THERE MUST BE A BALANCE BETWEEN
COST AND NEED AT A TIME WHEN THE IMPROVEMENT WOULD BE USEFUL.  WHEN
ONCE FOUND TO BE NAVIGABLE, A WATERWAY REMAINS SO. FN27  THIS IS NO
MORE INDEFINITE THAN A RULE OF NAVIGABILITY IN FACT AS ADOPTED BELOW
BASED UPON "USEFUL INTERSTATE COMMERCE" OR "GENERAL AND COMMON
USEFULNESS FOR PURPOSES OF TRADE AND COMMERCE" IF THESE ARE INTERPRETED
AS BARRING IMPROVEMENTS.  FN28  NOR IS IT NECESSARY THAT THE
IMPROVEMENTS SHOULD BE ACTUALLY COMPLETED OR EVEN AUTHORIZED.  THE
POWER OF CONGRESS OVER COMMERCE IS NOT TO BE HAMPERED BECAUSE OF THE
NECESSITY FOR REASONABLE IMPROVEMENTS TO MAKE AN INTERSTATE WATERWAY
AVAILABLE FOR TRAFFIC. 

OF COURSE THERE ARE DIFFICULTIES IN APPLYING THESE VIEWS. 
IMPROVEMENTS THAT MAY BE ENTIRELY REASONABLE IN A THICKLY POPULATED,
HIGHLY DEVELOPED, INDUSTRIAL REGION MAY HAVE BEEN ENTIRELY TOO COSTLY
FOR THE SAME REGION IN THE DAYS OF THE PIONEERS.  THE CHANGES IN
ENGINEERING PRACTICES OR THE COMING OF NEW INDUSTRIES WITH VARYING
CLASSES OF FREIGHT MAY AFFECT THE TYPE OF THE IMPROVEMENT.  ALTHOUGH
NAVIGABILITY TO FIX OWNERSHIP OF THE RIVER BED  FN29  OR RIPARIAN
RIGHTS FN30  IS DETERMINED AS THE CASES JUST CITED IN THE NOTES SHOW,
AS OF THE FORMATION OF THE UNION IN THE ORIGINAL STATES OR THE
ADMISSION TO STATEHOOD OF THOSE FORMED LATER, NAVIGABILITY, FOR THE
PURPOSE OF THE REGULATION OF COMMERCE, MAY LATER ARISE.  FN31  AN
ANALOGY IS FOUND IN ADMIRALTY JURISDICTION,  FN32  WHICH MAY BE
EXTENDED OVER PLACES FORMERLY NONNAVIGABLE.  FN33  THERE HAS NEVER BEEN
DOUBT THAT THE NAVIGABILITY REFERRED TO IN THE CASES WAS NAVIGABILITY
DESPITE THE OBSTRUCTION OF FALLS, RAPIDS, SAND BARS, CARRIES OR
SHIFTING CURRENTS.  FN34  THE PLENARY FEDERAL POWER OVER COMMERCE MUST
BE ABLE TO DEVELOP WITH THE NEEDS OF THAT COMMERCE WHICH IS THE REASON
FOR ITS EXISTENCE.  IT CANNOT PROPERLY BE SAID THAT THE FEDERAL POWER
OVER NAVIGATION IS ENLARGED BY THE IMPROVEMENTS TO THE WATERWAYS.  IT
IS MERELY THAT IMPROVEMENTS MAKE APPLICABLE TO CERTAIN WATERWAYS THE
EXISTING POWER OVER COMMERCE.  FN35  IN DETERMINING THE NAVIGABLE
CHARACTER OF THE NEW RIVER IT IS PROPER TO CONSIDER THE FEASIBILITY OF
INTERSTATE USE AFTER REASONABLE IMPROVEMENTS WHICH MIGHT BE MADE. 
FN36 

NOR IS IT NECESSARY FOR NAVIGABILITY THAT THE USE SHOULD BE
CONTINUOUS.  THE CHARACTER OF THE REGION, ITS PRODUCTS AND THE
DIFFICULTIES OR DANGERS OF THE NAVIGATION INFLUENCE THE REGULARITY AND
EXTENT OF THE USE.  FN37  SMALL TRAFFIC COMPARED TO THE AVAILABLE
COMMERCE OF THE REGION IS SUFFICIENT.  FN38  EVEN ABSENCE OF USE OVER
LONG PERIODS OF YEARS, BECAUSE OF CHANGED CONDITIONS, THE COMING OF THE
RAILROAD OR IMPROVED HIGHWAYS DOES NOT AFFECT THE NAVIGABILITY OF
RIVERS IN THE CONSTITUTIONAL SENSE.  FN39  IT IS WELL RECOGNIZED TOO
THAT THE NAVIGABILITY MAY BE OF A SUBSTANTIAL PART ONLY OF THE WATERWAY
IN QUESTION.  FN40 OF COURSE, THESE EVIDENCES OF NONNAVIGABILITY IN
WHOLE OR IN PART ARE TO BE APPRAISED IN TOTALITY TO DETERMINE THE
EFFECT OF ALL.  WITH THESE LEGAL TESTS IN MIND WE PROCEED TO EXAMINE
THE FACTS TO SEE WHETHER THE 111-MILE REACH OF THIS RIVER FROM
ALLISONIA TO HINTON, ACROSS THE VIRGINIA-WEST VIRGINIA STATE LINE, HAS
"CAPABILITY OF USE BY THE PUBLIC FOR THE PURPOSES OF TRANSPORTATION AND
COMMERCE."  FN41 

PHYSICAL CHARACTERISTICS.  NEW RIVER MAY BE SAID TO ASSUME ITS
CHARACTER AS SUCH AT THE MOUTH OF WILSON CREEK NEAR THE NORTH CAROLINA
VIRGINIA LINE.  FROM THAT POINT IT FLOWS FIRST IN A NORTHEAST AND THEN
IN A NORTHWEST DIRECTION SOMETHING OVER 250 MILES TO KANAWHA FALLS,
WEST VIRGINIA.  IT PASSES THROUGH ALLISONIA AND RADFORD, VIRGINIA, AND
THEN HINTON, WEST VIRGINIA.  IT IS JOINED BY MANY TRIBUTARIES, THE
LARGEST OF WHICH IS THE GAULEY.  AT KANAWHA FALLS IT CHANGES ITS NAME
TO THE KANAWHA, A NAVIGABLE RIVER OF COMMERCIAL IMPORTANCE WHICH JOINS
THE OHIO 97 MILES BELOW.  THE WHOLE TERRITORY TRAVERSED BY THE NEW IS
BROKEN AND MOUNTAINOUS.  BETWEEN HINTON AND KANAWHA FALLS, THE RIVER IS
SWIFT AND THE GORGE PRECIPITOUS.  ABOVE HINTON THE RIVER FLOWS MORE
SLOWLY, THROUGH A BROADER VALLEY AND BETWEEN LESS RUGGED MOUNTAINS. 
THE SAME MAY BE SAID OF THE AREA ABOVE RADFORD.  THROUGHOUT THE RIVER
THERE IS AN ABUNDANCE OF WATER, AND THE RESPONDENT HARDLY DENIES THAT
THE FLOWAGE SUFFICES IF OTHER CONDITIONS MAKE THE NEW AVAILABLE FOR
NAVIGATION.  FN42 

IT WILL CONSERVE DISCUSSION TO APPRAISE THE NAVIGABILITY OF THE 111
MILE STRETCH BETWEEN ALLISONIA AND HINTON IN THREE SECTIONS WHICH
TOGETHER FORM THE WHOLE REACH BETWEEN THESE POINTS: THE 28 MILES FROM
ALLISONIA TO RADFORD, WHICH THE UNITED STATES IMPROVED BETWEEN 1876 AND
1883; THE 59-MILE STRETCH FROM RADFORD TO WILEY'S FALLS, VIRGINIA,
NEVER IMPROVED EXCEPT AT WILEY'S FALLS ITSELF; AND THE 24 MILES FROM
WILEY'S FALLS ACROSS THE STATE LINE TO HINTON, WEST VIRGINIA, WHICH,
LIKE THE UPPER SECTION, THE GOVERNMENT IMPROVED DURING 1876-1883.  WE
SHALL EXAMINE CHIEFLY THE DISPUTED MIDDLE SECTION, FOR AS TO THE OTHERS
THE EVIDENCE OF NAVIGABILITY IS MUCH STRONGER AND THAT OF OBSTRUCTIONS
MUCH WEAKER.  FOR INSTANCE, THE REPORT OF THE CHIEF OF ENGINEERS FOR
1873 REFERS TO CERTAIN KEELBOATS OPERATING ON THE RIVER, AND HIS REPORT
FOR 1883 SHOWS THAT 17 KEELBOATS OPERATED ABOVE HINTON.  KEELBOATS WERE
FLAT-BOTTOMED BATEAUX, 50 TO 70 FEET LONG, WITH A DRAFT OF TWO FEET AND
A CARRYING CAPACITY VARYING UP TO 10 OR 12 TONS.  THEY WERE USED
COMMERCIALLY TO TRANSPORT LUMBER, TOBACCO AND OTHER PRODUCTS OF THE
REGION.  THE EVIDENCE IS CLEAR THAT THESE BATEAUX PLIED FROM HINTON UP
TO NEAR GLEN LYN WITH FAIR REGULARITY THROUGH THE FIRST DECADE OF THIS
CENTURY AND WELL INTO THE SECOND; TIMBER AND LUMBER IN LARGE QUANTITIES
APPARENTLY WERE BOATED AND RAFTED DOWN TO HINTON FROM VARIOUS UP-RIVER
POINTS BELOW GLEN LYN UNTIL ABOUT THE BEGINNING OF THE WORLD WAR.  FN43
AROUND AND ABOVE RADFORD THE CHIEF OF ENGINEERS REPORTED TWO KEELBOATS
OPERATING IN 1881, EIGHT IN 1882, AND EIGHT TOGETHER WITH A SMALL
STEAMBOAT IN 1883.  THE CORROBORATING TESTIMONY OF MANY WITNESSES SHOWS
THAT IN THE 80S THESE BOATS CARRIED IRON ORE AND PIG IRON, AS WELL AS
PRODUCE AND MERCHANDISE, BETWEEN ALLISONIA AND NEW RIVER BRIDGE, WHICH
IS A LITTLE ABOVE RADFORD.  FN44  AT THE HINTON AND NEW RIVER BRIDGE
RAILROAD STATIONS, FREIGHT BROUGHT IN BY THE KEELBOATS OR OTHER RIVER
CRAFT WAS TRANSSHIPPED, AND FREIGHT ARRIVING BY RAIL WAS FORWARDED BY
RIVER. 

WE COME THEN TO A CONSIDERATION OF THE CRUCIAL STRETCH FROM RADFORD
TO BELOW WILEY'S FALLS WHERE JUNCTION IS MADE WITH THE INTERSTATE REACH
FROM WILEY'S FALLS TO HINTON.  IN THE REPORT OF THE SECRETARY OF WAR
FOR 1872 APPEARS HUTTON'S USEFUL MILE-BY-MILE SURVEY OF THE RIVER FROM
ABOVE ALLISONIA TO THE MOUTH OF THE GREENBRIER, WHICH IS NEARLY DOWN TO
HINTON.  IT WAS MADE AS A BASIS FOR PLANS TO IMPROVE THE NEW BY FEDERAL
APPROPRIATION.  FN45  THIS SURVEY DESIGNATES THE RADFORD-WILEY'S FALLS
STRETCH AS "MILE 46" TO "MILE 104" INCLUSIVE.  EIGHTEEN OF THESE MILES
HAVE GRADES FALLING, GRADUALLY OR ABRUPTLY, MORE THAN FOUR FEET IN THE
MILE.  SEVERAL OF THESE WHERE THERE ARE RAPIDS OR FALLS SHOW DROPS OF
EIGHT, NINE AND IN ONE INSTANCE 11 1/2 FEET.  THE HIGHER FOOTAGE
REPRESENTS, OF COURSE, MILES IN WHICH SMALL FALLS ARE FOUND.  BETWEEN
THESE MORE PRECIPITOUS SECTIONS ARE MANY MILES OF WHAT IS CALLED "GOOD
WATER," WITH A GRADUAL FALL OF 4 FEET OR LESS.  EVEN IN MILES WHERE THE
DECLIVITY IS RAPID, THE FALL IS APPARENTLY LARGELY IN SECTIONS
CONTAINING OBSTRUCTIONS.  FOR INSTANCE, THE 51ST MILE READS "RAPID,
OVER BOWLDERS AND GRAVEL, 1,500 FEET LONG; FALL, 8 1/2 FEET," AND THE
100TH MILE "NEILLEY'S FALLS AND RAPIDS; WHOLE FALL, 11 FEET, 6 OF IT
NEARLY VERTICAL.  A SLUICE 500 FEET LONG, ALONG LEFT BANK, WILL PASS
THEM, WITH 50 FEET OF ROCK EXCAVATION AND 450 FEET OF BOWLDERS AND
GRAVEL."  QUITE FREQUENTLY WHERE THE FALL IS MODERATE, OTHER
OBSTRUCTIONS APPEAR, AS THE 78TH MILE "RAPIDS, 500 FEET LONG, OVER
BOWLDERS AND GRAVEL; FALL, 2 FEET."  LARGE ISOLATED ROCKS ARE SCATTERED
ABUNDANTLY THROUGHOUT THE STRETCH.  A GEOLOGIST TESTIFYING FOR THE
RESPONDENT TELLS STRIKINGLY HOW THE FAULTING AND FOLDING OF THE SURFACE
AT THIS STRETCH HAS RESULTED IN THE TILTING OF THE ROCK STRATA TO A
STEEP DEGREE.  "IN ITS FLOW, THE WATER OF NEW RIVER MOVES ALONG AND UP
THE SLOPES OF SUCCESSIVE ROCK STRATA OR LEDGES ...  THIS RESULTS IN A
RIVER WITH NUMEROUS LEDGES OF ROCK STRATA, SOME PARTLY SUBMERGED, SOME
EXPOSED, WHICH ARE SUBSTANTIALLY VERTICAL OR STANDING ON END, AND WHICH
EXTEND ACROSS THE STREAM AT RIGHT ANGLES TO THE LINE OF FLOW  ...  THE
SLOPE OF THE STRATA IS DOWNWARD IN AN UPSTREAM DIRECTION RATHER THAN IN
A DOWNSTREAM DIRECTION," CONTRARY TO THE USUAL CONDITION.  NO OTHER
DATA POINT TO MATERIAL VARIATIONS FROM THESE DESCRIPTIONS. 

USE OF THE RIVER FROM RADFORD TO WILEY'S FALLS.  NAVIGATION ON THE
RADFORD-WILEY'S FALLS STRETCH WAS NOT LARGE.  UNDOUBTEDLY THE
DIFFICULTIES RESTRICTED IT AND WITH THE COMING OF THE NORFOLK & WESTERN
AND THE CHESAPEAKE & OHIO RAILROADS IN THE 80S, SUCH USE AS THERE HAD
BEEN PRACTICALLY CEASED, EXCEPT FOR SMALL PUBLIC FERRIES GOING FROM ONE
BANK TO THE OTHER.  FN46  WELL AUTHENTICATED INSTANCES OF BOATING ALONG
THIS STRETCH, HOWEVER, EXIST.  IN 1819 A SURVEY WAS MADE BY MOORE AND
BRIGGS, WHOM THE GENERAL ASSEMBLY OF VIRGINIA HAD SENT TO REPORT ON THE
AVAILABILITY OF THE NEW FOR IMPROVEMENT.  BEGINNING AT THE MOUTH OF THE
GREENBRIER THEY BOATED UP TO THE MOUTH OF SINKING CREEK, SOME 55 MILES,
NOTING THE CHARACTERISTICS OF THE RIVER AS THEY WENT.  THEY REPORTED
THAT THEY ASCENDED ALL FALLS WITH THEIR BOAT, "THOUGH, IN TWO OR THREE
INSTANCES, WITH CONSIDERABLE DIFFICULTY, AFTER TAKING OUT OUR BAGGAGE,
STORES, &C."  FN47  SINKING CREEK IS ABOUT HALF WAY UP THIS STRETCH OF
RIVER WE ARE CONSIDERING. 

IN 1861 THE VIRGINIA GENERAL ASSEMBLY APPROPRIATED $30,000 TO IMPROVE
THE NEW RIVER TO ACCOMMODATE TRANSPORTATION OF MILITARY STORES BY
BATEAUX FROM CENTRAL DEPOT (RADFORD) TO THE MOUTH OF THE GREENBRIER. 
FN48  WHILE THERE IS NO DIRECT PROOF THAT THIS PARTICULAR APPROPRIATION
WAS SPENT, REPORTS OF THE WAR DEPARTMENT ENGINEERS MAKE IT CLEAR THAT
THE CONFEDERATE GOVERNMENT EFFECTED SOME IMPROVEMENTS ON THE RIVER. 
FN49  THESE FACTS BUTTRESS THE TESTIMONY OF SEVERAL WITNESSES, ONE A
CONFEDERATE VETERAN, THAT DURING THE CIVIL WAR KEELBOTTOM BOATS BROUGHT
SUPPLIES FROM RADFORD TO A COMMISSARY AT THE NARROWS (ABOUT 7 MILES
ABOVE GLEN LYN), AND THEN CONTINUED FURTHER DOWNSTREAM.  FN50  THIS
TESTIMONY THE CIRCUIT COURT OF APPEALS ACCEPTED AS TRUE.  FN51 

FROM THE END OF THE CIVIL WAR TO THE COMING OF THE RAILROADS, THE
EVIDENCE OF ELDERLY RESIDENTS FAMILIAR WITH EVENTS ALONG THE BANKS OF
THE RIVER BETWEEN RADFORD AND WILEY'S FALLS LEAVES NO DOUBT THAT AT
LEAST SPORADIC TRANSPORTATION TOOK PLACE IN AND THROUGHOUT THIS
STRETCH.  BY THIS IT IS NOT MEANT THAT THE KEELBOATS ABOVE RADFORD AND
ABOVE HINTON, WHICH OPERATED FREQUENTLY IN THE IMPROVED SECTIONS, MADE
REGULAR THROUGH TRIPS FROM ALLISONIA PAST RADFORD TO HINTON.  THROUGH
NAVIGATION, HOWEVER, DID OCCUR, AS IS SHOWN BY THE TESTIMONY OF A
NUMBER OF WITNESSES AND RECOGNIZED BY THE LOWER COURTS.  FN52  THERE
ARE ALSO NUMEROUS REFERENCES TO ISOLATED BITS OF BOATING ALONG PARTS OF
THE RADFORD-WILEY'S FALLS REACH.  FN53  AND WHEN THE GOVERNMENT STOPPED
IMPROVEMENT IN 1883, IT ORDERED THE BOATS IT WAS USING IN THE LEAD
MINES' DIVISION ABOVE ALLISONIA, AND AT VARIOUS PLACES DOWNSTREAM, TO
BE BROUGHT DOWN THE FULL STRETCH OF THE RIVER TO HINTON FOR SALE. 
UNDER THE SUPERVISION OF THE ASSISTANT ENGINEER, A DERRICK BOAT, FOUR
BATEAUX, AND NUMEROUS FLAT BOATS, SKIFFS AND CANOES - MORE THAN TWENTY
VESSELS IN ALL - WERE TAKEN DOWN TO HINTON, A NUMBER OF THEM FROM
POINTS ABOVE RADFORD.  THIS WAS ACCOMPLISHED, AS THE CHIEF OF
ENGINEERS' REPORT SHOWS, DESPITE DIFFICULTIES OCCASIONED BY "WEATHER,
LOW WATER, AND SCARCITY OF LABOR."  FN54 

IN ADDITION TO THE TESTIMONY OF USE IN THE DAYS BEFORE RAILWAYS AND
GOOD ROADS, THERE WAS A DEMONSTRATION OF THE POSSIBILITY OF NAVIGATION
BY A GOVERNMENT SURVEY BOAT WITH AN OUTBOARD MOTOR, 16 FEET LONG, FIVE
FEET WIDE, DRAWING 2 1/2 TO 3 FEET, LOADED WITH A CREW OF FIVE AND ITS
SURVEY EQUIPMENT.  THIS BOAT MADE A ROUND TRIP FROM THE NARROWS, JUST
ABOVE WILEY'S FALLS, TO ALLISONIA, A DISTANCE OF 72 MILES ONE WAY, IN
JULY, 1936, WHEN THE RIVER STAGE WAS NORMAL SUMMER LOW WATER.  WHILE
THE CREW WAS OUT OF THE BOAT AND USED POLES A NUMBER OF TIMES, THERE
WERE NO CARRIES OR PORTAGES.  GOING UPSTREAM IT WAS NOT NECESSARY TO
PULL OR PUSH THE BOAT MORE THAN A MILE AND A QUARTER AND NOT MORE THAN
A FEW HUNDRED FEET ON THE RETURN TRIP. 

USE OF A STREAM LONG ABANDONED BY WATER COMMERCE IS DIFFICULT TO
PROVE BY ABUNDANT EVIDENCE.  FOURTEEN AUTHENTICATED INSTANCES OF USE IN
A CENTURY AND A HALF BY EXPLORERS AND TRAPPERS, COUPLED WITH GENERAL
HISTORICAL REFERENCES TO THE RIVER AS A WATER ROUTE FOR THE EARLY FUR
TRADERS AND THEIR SUPPLIES IN PIROGUES AND DURHAM OR FLAT-BOTTOMED
CRAFT SIMILAR TO THE KEELBOATS OF THE NEW, SUFFICED UPON THAT PHASE IN
THE CASE OF THE DESPLAINES.  FN55  NOR IS LACK OF COMMERCIAL TRAFFIC A
BAR TO A CONCLUSION OF NAVIGABILITY WHERE PERSONAL OR PRIVATE USE BY
BOATS DEMONSTRATES THE AVAILABILITY OF THE STREAM FOR THE SIMPLER TYPES
OF COMMERCIAL NAVIGATION.  FN56 

THE EVIDENCE OF ACTUAL USE OF THE RADFORD-WILEY'S FALLS SECTION FOR
COMMERCE AND FOR PRIVATE CONVENIENCE, WHEN TAKEN IN CONNECTION WITH ITS
PHYSICAL CONDITION, MAKES IT QUITE PLAIN THAT BY REASONABLE IMPROVEMENT
THE REACH WOULD BE NAVIGABLE FOR THE TYPE OF BOATS EMPLOYED ON THE LESS
OBSTRUCTED SECTIONS.  INDEED THE EVIDENCE DETAILED ABOVE IS STRIKINGLY
SIMILAR TO THAT RELIED UPON BY THIS COURT IN UNITED STATES V. UTAH
FN57  TO ESTABLISH THE NAVIGABILITY OF THE COLORADO FROM CATARACT
CANYON TO THE UTAH-ARIZONA BOUNDARY LINE.  THERE HAD BEEN SEVENTEEN
THROUGH TRIPS OVER A PERIOD OF SIXTY YEARS FROM THE ORIGINAL
EXPLORATION; AND THESE TOGETHER WITH SPORADIC TRIPS ON PARTS OF THE
STRETCH, AND CONSIDERABLE USE - IN CONNECTION WITH GOLD PLACER MINING -
OF OTHER PARTS FROM 1888 TO 1915, SUFFICED TO SUSTAIN NAVIGABILITY. 
FN58 

EFFECT OF IMPROVABILITY.  RESPONDENT DENIED THE PRACTICABILITY OF
ARTIFICIAL MEANS TO BRING ABOUT THE NAVIGABILITY OF THE NEW RIVER AND
THE EFFECTIVENESS OF ANY IMPROVEMENT TO MAKE THE RIVER A NAVIGABLE
WATER OF THE UNITED STATES.  THE GOVERNMENT SUPPORTED ITS ALLEGATION OF
IMPROVABILITY BY POINTING OUT THAT THE USE OF THE SECTION FOR THROUGH
NAVIGATION AND LOCAL BOATING ON FAVORABLE STRETCHES OF THE RADFORD
WILEY'S FALLS REACH SHOWED THE FEASIBILITY OF SUCH USE AND THAT LITTLE
WAS NEEDED IN THE WAY OF IMPROVEMENTS TO MAKE THE SECTION A
THOROUGHFARE FOR THE TYPICAL, LIGHT COMMERCIAL TRAFFIC OF THE AREA. 
KEELBOATS, EIGHT FEET WIDE, DRAWING TWO FEET, WERE THE USUAL
EQUIPMENT.  IN THE 1872 REPORT OF THE CHIEF OF ENGINEERS, MAJOR
CRAIGHILL IN CHARGE OF NEW RIVER REPORTS THAT TO GET "GOOD SLUICE
NAVIGATION OF 2 FEET AT ALL TIMES" FOR 54 MILES UP FROM THE MOUTH OF
THE GREENBRIER RIVER, NEAR HINTON, WOULD COST $30,000 AND FOR 128
MILES, GREENBRIER TO THE LEAD MINES (ABOVE ALLISONIA), WOULD COST
$100,000.  THE DEPTH OVER THE SHOALS COULD BE INCREASED TO 2 FEET
WITHOUT "TOO MUCH INCREASE OF VELOCITY OF THE CURRENT."  THIS
RECOMMENDATION WAS BASED ON HUTTON'S MILE-BY-MILE SURVEY AND INCLUDES
ALL OF THE RADFORD-WILEY'S FALLS SECTION. 

THE IMPROVEMENTS WERE UNDERTAKEN BEGINNING IN 1877.  AS THE REGION
WAS BECOMING BETTER DEVELOPED, A HIGHER TYPE OF IMPROVEMENT BECAME
DESIRABLE, WIDER SLUICE WAYS AND A DEEPER CHANNEL, USABLE BY SMALL
STEAMBOATS.  WORK WENT FORWARD ABOVE HINTON AND ABOVE RADFORD TO MEET
THE PRESSING DEMANDS OF THE COMMUNITIES.  ANNUAL REPORTS OF THE CHIEF
OF ENGINEERS ASSUMED OR REAFFIRMED THE NAVIGABILITY OF THE ENTIRE RIVER
ABOVE HINTON AND THE PRACTICALITY OF THE IMPROVEMENTS.  FN59  BY 1891,
$109,733.21 HAD BEEN SPENT.  IT WAS IN THAT YEAR ESTIMATED $159,000
MORE WOULD BE REQUIRED TO COMPLETE THE PROJECT THE FULL LENGTH FROM
WILSON CREEK TO HINTON.  FN60  USEFUL NAVIGATION MOVED REGULARLY
BETWEEN HINTON AND NEAR GLEN LYN AND BETWEEN RADFORD AND ALLISONIA. 
ABOUT HALF THE REACH BETWEEN HINTON AND ALLISONIA WAS IMPROVED.  THE
RADFORD-WILEY'S FALLS SECTION WAS NEVER IMPROVED.  IT WAS REPORTED THAT
CONDITIONS HAD CHANGED AND THE PROJECT SHOULD NOT BE COMPLETED.  FN61
THE PROVISIONS FOR IMPROVEMENTS WERE REPEALED IN 1902.  FN62  BY 1912
THE REGION'S NEED FOR USE OF THE RIVER HAD SO DIMINISHED THAT THE ARMY
ENGINEERS ADVISED AGAINST UNDERTAKING IMPROVEMENTS AGAIN, AND EVEN
REFERRED TO THE COST AS "PROHIBITIVE."  FN63  FROM THE USE OF THE
RADFORD-WILEY'S FALLS STRETCH AND THE EVIDENCE AS TO ITS READY
IMPROVABILITY AT A LOW COST FOR EASIER KEELBOAT USE, WE CONCLUDE THAT
THIS SECTION OF THE NEW RIVER IS NAVIGABLE.  IT FOLLOWS FROM THIS,
TOGETHER WITH THE UNDISPUTED COMMERCIAL USE OF THE TWO STRETCHES ABOVE
RADFORD AND HINTON, THAT THE NEW RIVER FROM ALLISONIA, VIRGINIA, TO
HINTON, WEST VIRGINIA, IS A NAVIGABLE WATER OF THE UNITED STATES. 

LICENSE PROVISIONS.  THE DETERMINATION THAT THE NEW RIVER IS
NAVIGABLE ELIMINATES FROM THIS CASE ISSUES WHICH MAY ARISE ONLY WHERE
THE RIVER INVOLVED IS NONNAVIGABLE.  FN64  BUT EVEN ACCEPTING THE
NAVIGABILITY OF THE NEW RIVER, THE RESPONDENT URGES THAT CERTAIN
PROVISIONS OF THE LICENSE, WHICH SEEK TO CONTROL AFFAIRS OF THE
LICENSEE, ARE UNCONNECTED WITH NAVIGATION AND ARE BEYOND THE POWER OF
THE COMMISSION, INDEED BEYOND THE CONSTITUTIONAL POWER OF CONGRESS TO
AUTHORIZE. 

THE ISSUE ARISES BECAUSE OF THE PRAYER OF THE BILL THAT THE
RESPONDENT BE COMPELLED TO ACCEPT THE LICENSE AS REQUIRED BY LAW OR
REMOVE THE DAM AS AN OBSTRUCTION AND THE ANSWER OF THE RESPONDENT THAT
THE LICENSE REQUIRED BY LAW AND TENDERED TO IT BY THE COMMISSION
CONTAINS PROVISIONS, UNRELATED TO NAVIGATION OR THE PROTECTION OF
NAVIGABLE CAPACITY, WHICH ARE BEYOND THE CONSTITUTIONAL AUTHORITY OF
CONGRESS TO REQUIRE ON ACCOUNT OF THE FIFTH AND TENTH AMENDMENTS. 
THERE IS NO CONTENTION THAT THE PROVISIONS OF THE LICENSE ARE NOT
AUTHORIZED BY THE STATUTE.  IN THE NOTE BELOW  FN65  THE CHIEF
STATUTORY CONDITIONS FOR A LICENSE ARE EPITOMIZED.  THE LICENSE OFFERED
THE RESPONDENT ON MAY 5, 1931, EMBODIED THESE STATUTORY REQUIREMENTS
AND WE ASSUME IT TO BE IN CONFORMITY WITH THE EXISTING ADMINISTRATION
OF THE POWER ACT.  WE SHALL PASS UPON THE VALIDITY OF ONLY THOSE
PROVISIONS OF THE LICENSE CALLED TO OUR ATTENTION BY THE RESPONDENT AS
BEING UNRELATED TO THE PURPOSES OF NAVIGATION.  THESE ARE THE
CONDITIONS DERIVED FROM SECS. 10A, 10C, 10D, 10E AND 14.  WE DO NOT
CONSIDER THAT THE VALIDITY OF OTHER CLAUSES HAS BEEN RAISED BY THE
RESPONDENT'S GENERAL CHALLENGE TO THE CONSTITUTIONALITY OF ANY
PROVISION "OTHER THAN THOSE RELATING SOLELY TO THE PROTECTION" OF
NAVIGABLE WATERS.  FN66  IT SHOULD ALSO BE NOTED THAT NO COMPLAINT IS
MADE OF ANY CONDITIONS OF THE LICENSE DEPENDENT UPON THE AUTHORIZATION
OF SEC. 10G, THE OMNIBUS CLAUSE REQUIRING COMPLIANCE WITH SUCH OTHER
CONDITIONS AS THE COMMISSION MAY REQUIRE.    THE PETITIONER SUGGESTS
THAT CONSIDERATION OF THE VALIDITY OF SEC. 14, THE ACQUISITION CLAUSE,
AND THE LICENSE CONDITIONS BASED UPON ITS LANGUAGE ARE PROPERLY TO BE
DEFERRED UNTIL THE UNITED STATES UNDERTAKES TO CLAIM THE RIGHT TO
PURCHASE THE PROJECT ON THE LICENSE TERMS FIFTY YEARS AFTER ITS
ISSUANCE.  FN67  ASSUMING THAT THE MERE ACCEPTANCE OF A LICENSE WOULD
NOT LATER BAR THE OBJECTION OF UNCONSTITUTIONAL CONDITIONS, EVEN WHEN
ACCOMPANIED BY A SPECIFIC AGREEMENT TO ABIDE BY THE STATUTE AND
LICENSE,  FN68  WE CONCLUDE THAT HERE THE REQUIREMENTS OF SEC. 14 SO
VITALLY AFFECT THE ESTABLISHMENT AND FINANCING OF RESPONDENT'S PROJECT
AS TO REQUIRE A DETERMINATION OF THEIR VALIDITY BEFORE FINALLY
ADJUDGING THE ISSUE OF INJUNCTION. 

THE RESPONDENT'S OBJECTIONS TO THE STATUTORY AND LICENSE PROVISIONS,
AS APPLIED TO NAVIGABLE STREAMS, ARE BASED ON THE CONTENTIONS (1) THAT
THE UNITED STATES' CONTROL OF THE WATERS IS LIMITED TO CONTROL FOR
PURPOSES OF NAVIGATION, (2) THAT CERTAIN LICENSE PROVISIONS TAKE ITS
PROPERTY WITHOUT DUE PROCESS, AND (3) THAT THE CLAIMED RIGHT TO ACQUIRE
THIS PROJECT AND TO REGULATE ITS FINANCING, RECORDS AND AFFAIRS, IS AN
INVASION OF THE RIGHTS OF THE STATES, CONTRARY TO THE TENTH AMENDMENT. 

FORTY-ONE STATES JOIN AS AMICI IN SUPPORT OF THE RESPONDENT'S
ARGUMENTS.  WHILE CONCEDING, AS OF COURSE, THAT CONGRESS MAY PROHIBIT
THE ERECTION IN NAVIGABLE WATERS OF THE UNITED STATES OF ANY STRUCTURE
DEEMED TO IMPAIR NAVIGATION, THE ATTORNEYS GENERAL SPEAKING FOR THE
STATES INSIST THAT THIS POWER OF PROHIBITION DOES NOT COMPREHEND A
POWER TO EXACT CONDITIONS, WHICH ARE UNRELATED TO NAVIGATION, FOR THE
PERMISSION TO ERECT SUCH STRUCTURES.  TO PERMIT, THE ARGUMENT
CONTINUES, THE IMPOSITION OF LICENSES INVOLVING CONDITIONS SUCH AS THIS
ACQUISITION CLAUSE, ENABLING THE FEDERAL GOVERNMENT TO TAKE OVER A
NATURAL RESOURCE SUCH AS WATER-POWER, ALLOWS LOGICALLY SIMILAR
ACQUISITION OF MINES, OIL OR FARMLANDS AS CONSIDERATION FOR THE
PRIVILEGE OF DOING AN INTERSTATE BUSINESS.  THE STATES THUS LOSE
CONTROL OF THEIR RESOURCES AND PROPERTY IS WITHDRAWN FROM TAXATION IN
VIOLATION OF THE TENTH AMENDMENT. 

FURTHER, THE POINT IS MADE THAT A CLASH OF SOVEREIGNTY ARISES BETWEEN
THE LICENSE PROVISIONS OF THE POWER ACT AND STATE LICENSING
PROVISIONS.  THE COMMONWEALTH OF VIRGINIA ADVANCES FORCIBLY ITS
CONTENTION THAT THE AFFIRMATIVE REGULATION OF WATER-POWER PROJECTS ON
ITS NAVIGABLE STREAMS WITHIN ITS BOUNDARIES RESTS WITH THE STATE,
BEYOND THAT NEEDED FOR NAVIGATION.  "WHILE THE SUPREMACY OF THE FEDERAL
GOVERNMENT IN ITS OWN PROPER SPHERE, AS DELINEATED IN THE CONSTITUTION,
IS CHEERFULLY CONCEDED, YET JUST AS EARNESTLY DOES VIRGINIA INSIST UPON
THE SUPREMACY OF HER OWN GOVERNMENT IN ITS PROPER FIELD AS ESTABLISHED
BY THAT INSTRUMENT."  VIRGINIA HAS A WATER POWER ACT.  FN69  IT, TOO,
OFFERS A FIFTY-YEAR LICENSE, WITH THE RIGHT TO USE THE NATURAL
RESOURCES OF THE STATE, THE STREAM FLOW AND THE BEDS OF THE WATER
COURSES FOR THE PERIOD OF THE LICENSE OR ITS EXTENSIONS SUBJECT TO
STATE CONDEMNATION AT ANY TIME ON VIRGINIA'S TERMS FOR ASCERTAINMENT OF
VALUE.  OPERATION IS LIKEWISE REGULATED BY STATE LAW.  FN70  THE
COMMONWEALTH OBJECTS THAT THE DEVELOPMENT OF ITS WATER POWER RESOURCES
IS SUBJECTED TO FEDERAL POWER ACT REQUIREMENTS SUCH AS ARE DETAILED
ABOVE IN STATING THE RESPONDENT'S OBJECTION, EVEN TO THE POINT THAT
VIRGINIA ITSELF MAY NOT BUILD AND OPERATE A DAM IN NAVIGABLE WATER
WITHOUT AUTHORIZATION AND REGULATION BY THE FEDERAL GOVERNMENT. 

THE BRIEFS AND ARGUMENTS AT THE BAR HAVE MARSHALED REASONS AND
PRECEDENTS TO COVER THE WIDE RANGE OF POSSIBLE DISAGREEMENT BETWEEN
NATION AND STATE IN THE FUNCTIONING OF THE FEDERAL POWER ACT.  TO
PREDETERMINE, EVEN IN THE LIMITED FIELD OF WATER POWER, THE RIGHTS OF
DIFFERENT SOVEREIGNTIES, PREGNANT WITH FUTURE CONTROVERSIES, IS BEYOND
THE JUDICIAL FUNCTION.  THE COURTS DEAL WITH CONCRETE LEGAL ISSUES,
PRESENTED IN ACTUAL CASES, NOT ABSTRACTIONS N71.  THE POSSIBILITY OF
OTHER USES OF THE COERCIVE POWER OF LICENSE, IF IT IS HERE UPHELD, IS
NOT BEFORE US.  WE DEEM THE PICTURED EXTREMES IRRELEVANT SAVE AS
POSSIBILITIES FOR CONSIDERATION IN DETERMINING THE PRESENT QUESTION OF
THE VALIDITY OF THE CHALLENGED LICENSE PROVISIONS.  TO THIS WE LIMIT
THIS PORTION OF OUR DECISION.  FN72 

THE RESPONDENT IS A RIPARIAN OWNER WITH A VALID STATE LICENSE TO USE
THE NATURAL RESOURCES OF THE STATE FOR ITS ENTERPRISE.  CONSEQUENTLY IT
HAS AS COMPLETE A RIGHT TO THE USE OF THE RIPARIAN LANDS, THE WATER,
AND THE RIVER BED AS CAN BE OBTAINED UNDER STATE LAW.  THE STATE AND
RESPONDENT, ALIKE, HOWEVER, HOLD THE WATERS AND THE LANDS UNDER THEM
SUBJECT TO THE POWER OF CONGRESS TO CONTROL THE WATERS FOR THE PURPOSE
OF COMMERCE.  FN73  THE POWER FLOWS FROM THE GRANT TO REGULATE, I.E.,
TO "PRESCRIBE THE RULE BY WHICH COMMERCE IS TO BE GOVERNED."  FN74
THIS INCLUDES THE PROTECTION OF NAVIGABLE WATERS IN CAPACITY AS WELL AS
USE.  FN75  THIS POWER OF CONGRESS TO REGULATE COMMERCE IS SO
UNFETTERED THAT ITS JUDGMENT AS TO WHETHER A STRUCTURE IS OR IS NOT A
HINDRANCE IS CONCLUSIVE.  ITS DETERMINATION IS LEGISLATIVE IN
CHARACTER.  FN76  THE FEDERAL GOVERNMENT HAS DOMINATION OVER THE WATER
POWER INHERENT IN THE FLOWING STREAM.  IT IS LIABLE TO NO ONE FOR ITS
USE OR NON-USE.  THE FLOW OF A NAVIGABLE STREAM IS IN NO SENSE PRIVATE
PROPERTY; "THAT THE RUNNING WATER IN A GREAT NAVIGABLE STREAM IS
CAPABLE OF PRIVATE OWNERSHIP IS INCONCEIVABLE."  EXCLUSION OF RIPARIAN
OWNERS FROM ITS BENEFITS WITHOUT COMPENSATION IS ENTIRELY WITHIN THE
GOVERNMENT'S DISCRETION.  FN77 

POSSESSING THIS PLENARY POWER TO EXCLUDE STRUCTURES FROM NAVIGABLE
WATERS AND DOMINION OVER FLOWAGE AND ITS PRODUCT, ENERGY, THE UNITED
STATES MAY MAKE THE ERECTION OR MAINTENANCE OF A STRUCTURE IN A
NAVIGABLE WATER DEPENDENT UPON A LICENSE.  FN78  THIS POWER IS
EXERCISED THROUGH SEC. 9 OF THE RIVERS AND HARBORS ACT OF 1899
PROHIBITING CONSTRUCTION WITHOUT CONGRESSIONAL CONSENT AND THROUGH SEC.
4(E) OF THE PRESENT POWER ACT. 

IT IS QUITE TRUE THAT THE CRITICIZED PROVISIONS SUMMARIZED ABOVE ARE
NOT ESSENTIAL TO OR EVEN CONCERNED WITH NAVIGATION AS SUCH.  RESPONDENT
ASSERTS THAT THE RIGHTS OF THE UNITED STATES TO THE USE OF THE WATERS
IS LIMITED TO NAVIGATION.  IT IS POINTED OUT THAT THE FEDERAL
SOVEREIGNTY OVER WATERS WAS SO DESCRIBED IN PORT OF SEATTLE V. OREGON &
WASHINGTON R. CO.,  FN79  UNITED STATES V. OREGON,  FN80  KANSAS V.
COLORADO,  FN81  UNITED STATES V. RIVER ROUGE COMPANY,  FN82  AND
WISCONSIN V. ILLINOIS.  FN83  THE FIRST TWO OF THESE CASES CENTERED
AROUND THE ISSUE OF TITLE TO LAND UNDER NAVIGABLE WATER.  NOTHING
FURTHER WAS INVOLVED AS TO THE USE OF THE WATER THAN ITS NAVIGABILITY. 
IN KANSAS V. COLORADO THE POINT WAS THE GOVERNMENT'S ADVOCACY OF THE
DOCTRINE OF SOVEREIGN AND INHERENT POWER TO JUSTIFY THE UNITED STATES
TAKING CHARGE OF THE WATERS OF THE ARKANSAS TO CONTROL THE RECLAMATION
OF ARID LANDS (PP. 85-89).  THERE WAS FOUND NO CONSTITUTIONAL AUTHORITY
FOR IRRIGATION IN THE COMMERCE CLAUSE OR THE CLAUSE RELATING TO
PROPERTY OF THE UNITED STATES.  FN84  IT CANNOT BE SAID, HOWEVER, THAT
THE CASE IS AUTHORITY FOR LIMITING FEDERAL POWER OVER NAVIGABLE WATERS
TO NAVIGATION,  FN85  ESPECIALLY SINCE THE STRETCH OF THE ARKANSAS
RIVER INVOLVED IN THE DISPUTE WAS ASSERTED BY THE GOVERNMENT TO BE
NONNAVIGABLE (P. 86).  IN THE RIVER ROUGE CONTROVERSY, THIS COURT SPOKE
OF THE LIMITATION "TO THE CONTROL THEREOF FOR THE PURPOSES OF
NAVIGATION."  BUT THERE, TOO, IT WAS A QUESTION OF THE RIPARIAN OWNER'S
USE OF HIS PROPERTY FOR ACCESS TO THE CHANNEL, A USE FIXED BY STATE
LAW.  THE CONCLUSION THAT THE UNITED STATES COULD NOT INTERFERE, EXCEPT
FOR NAVIGATION, WITH HIS RIGHT OF ACCESS TO NAVIGABLE WATER, REQUIRED
NO APPRAISAL OF OTHER RIGHTS.  WISCONSIN V. ILLINOIS IS A PART OF THE
CHICAGO DRAINAGE CANAL LITIGATION.  IN SO FAR AS PERTINENT HERE, IT
MERELY DECIDED THAT UNDER A CERTAIN FEDERAL STATUTE FN86  THERE WAS NO
AUTHORITY FOR DIVERSION OF THE WATERS OF LAKE MICHIGAN FOR SANITARY
PURPOSES (P. 418).  THERE IS NO CONSIDERATION OF THE CONSTITUTIONAL
POWER TO USE WATER FOR OTHER THAN NAVIGABLE PURPOSES, THOUGH IT IS
PLAIN THAT OTHER ADVANTAGES OCCUR (PP. 415, 419). 

IN OUR VIEW, IT CANNOT PROPERLY BE SAID THAT THE CONSTITUTIONAL POWER
OF THE UNITED STATES OVER ITS WATERS IS LIMITED TO CONTROL FOR
NAVIGATION.  BY NAVIGATION RESPONDENT MEANS NO MORE THAN OPERATION OF
BOATS AND IMPROVEMENT OF THE WATERWAY ITSELF.  IN TRUTH THE AUTHORITY
OF THE UNITED STATES IS THE REGULATION OF COMMERCE ON ITS WATERS. 
NAVIGABILITY, IN THE SENSE JUST STATED, IS BUT A PART OF THIS WHOLE. 
FLOOD PROTECTION, WATERSHED DEVELOPMENT, RECOVERY OF THE COST OF
IMPROVEMENTS THROUGH UTILIZATION OF POWER ARE LIKEWISE PARTS OF
COMMERCE CONTROL.  FN87  AS RESPONDENT SOUNDLY ARGUES, THE UNITED
STATES CANNOT BY CALLING A PROJECT OF ITS OWN "A MULTIPLE PURPOSE DAM"
GIVE TO ITSELF ADDITIONAL POWERS, BUT EQUALLY TRULY THE RESPONDENT
CANNOT, BY SEEKING TO USE A NAVIGABLE WATERWAY FOR POWER GENERATION
ALONE, AVOID THE AUTHORITY OF THE GOVERNMENT OVER THE STREAM.  THAT
AUTHORITY IS AS BROAD AS THE NEEDS OF COMMERCE.  WATER POWER
DEVELOPMENT FROM DAMS IN NAVIGABLE STREAMS IS FROM THE PUBLIC'S
STANDPOINT A BYPRODUCT OF THE GENERAL USE OF THE RIVERS FOR COMMERCE. 
TO THIS GENERAL POWER, THE RESPONDENT MUST SUBMIT ITS SINGLE PURPOSE OF
ELECTRICAL PRODUCTION.  THE FACT THAT THE COMMISSION IS WILLING TO GIVE
A LICENSE FOR A POWER DAM ONLY IS OF NO SIGNIFICANCE IN APPRAISING THE
TYPE OF CONDITIONS ALLOWABLE.  IT MAY WELL BE THAT THIS PORTION OF THE
RIVER IS NOT NEEDED FOR NAVIGATION AT THIS TIME.  OR THAT THE DAM
PROPOSED MAY FUNCTION SATISFACTORILY WITH OTHERS, CONTEMPLATED OR
INTENDED.  IT MAY FIT IN AS A PART OF THE RIVER DEVELOPMENT.  THE POINT
IS THAT NAVIGABLE WATERS ARE SUBJECT TO NATIONAL PLANNING AND CONTROL
IN THE BROAD REGULATION OF COMMERCE GRANTED THE FEDERAL GOVERNMENT. 
THE LICENSE CONDITIONS TO WHICH OBJECTION IS MADE HAVE AN OBVIOUS
RELATIONSHIP TO THE EXERCISE OF THE COMMERCE POWER.  EVEN IF THERE WERE
NO SUCH RELATIONSHIP THE PLENARY POWER OF CONGRESS OVER NAVIGABLE
WATERS WOULD EMPOWER IT TO DENY THE PRIVILEGE OF CONSTRUCTING AN
OBSTRUCTION IN THOSE WATERS.  IT MAY LIKEWISE GRANT THE PRIVILEGE ON
TERMS.  IT IS NO OBJECTION TO THE TERMS AND TO THE EXERTION OF THE
POWER THAT "ITS EXERCISE IS ATTENDED BY THE SAME INCIDENTS WHICH ATTEND
THE EXERCISE OF THE POLICE POWER OF THE STATES."  FN88  THE
CONGRESSIONAL AUTHORITY UNDER THE COMMERCE CLAUSE IS COMPLETE UNLESS
LIMITED BY THE FIFTH AMENDMENT. 

THE RESPONDENT URGES THAT AS RIPARIAN OWNER WITH STATE APPROVAL OF
ITS PLANS, IT IS ENTITLED TO FREEDOM IN THE DEVELOPMENT OF ITS PROPERTY
AND PARTICULARLY CANNOT BE COMPELLED TO SUBMIT TO THE ACQUISITION
CLAUSE WITH A PRICE FIXED AT LESS THAN A FAIR VALUE, IN THE EMINENT
DOMAIN SENSE, AT THE TIME OF TAKING.  SUCH A TAKING, IT IS CONTENDED,
WOULD VIOLATE THE FIFTH AMENDMENT.  IT IS NOW A QUESTION WHETHER THE
GOVERNMENT IN TAKING OVER THE PROPERTY MAY DO SO AT LESS THAN A FAIR
VALUE.  IT HAS BEEN SHOWN, NOTE 77, SUPRA, THAT THERE IS NO PRIVATE
PROPERTY IN THE FLOW OF THE STREAM.  THIS HAS NO ASSESSABLE VALUE TO
THE RIPARIAN OWNER.  IF THE GOVERNMENT WERE NOW TO BUILD THE DAM, IT
WOULD HAVE TO PAY THE FAIR VALUE, JUDICIALLY DETERMINED,  FN89  FOR THE
FAST LAND; NOTHING FOR THE WATER POWER.  FN90  WE ASSUME WITHOUT
DECIDING THAT BY COMPULSION OF THE METHOD OF ACQUISITION PROVIDED IN
SEC. 14 OF THE POWER ACT AND THE TENDERED LICENSE, THESE RIPARIAN
RIGHTS MAY PASS TO THE UNITED STATES FOR LESS THAN THEIR VALUE.  IN OUR
VIEW THIS "IS THE PRICE WHICH (RESPONDENTS) MUST PAY TO SECURE THE
RIGHT TO MAINTAIN THEIR DAM."  THE QUOTED WORDS ARE THE CONCLUSION OF
THE OPINION IN FOX RIVER CO. V. RAILROAD COMMISSION.  FN91  THE CASE IS
DECISIVE ON THE ISSUE OF CONFISCATION.  IT RELATES TO AN ACQUISITION
CLAUSE IN A WISCONSIN LICENSE BY WHICH A DAM IN NAVIGABLE WATER OF THE
STATE MIGHT BE TAKEN OVER AT SUCH A PRICE AS WOULD, THIS COURT ASSUMED,
AMOUNT TO VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT IF IT WERE NOT FOR THE LICENSE PROVISION.  TITLE TO THE BANK
AND BED WERE IN THE OBJECTOR, JUST AS, BY VIRTUE OF THE STATE'S LICENSE
AND THE RIPARIAN OWNERSHIP, ALL RIGHTS HERE BELONG TO RESPONDENT. 
THERE, AS HERE, THE RIGHTS WERE SUBJECT TO GOVERNMENTAL "CONTROL OF
NAVIGABLE WATERS."  FN92  THE FACT THAT THE FOX RIVER CASE INVOLVED A
STATE AND THAT THIS CASE INVOLVES THE UNITED STATES IS IMMATERIAL FROM
THE DUE PROCESS STANDPOINT.  SINCE THE UNITED STATES MIGHT ERECT A
STRUCTURE IN THESE WATERS ITSELF, EVEN ONE EQUIPPED FOR ELECTRICAL
GENERATION,  FN93  IT MAY CONSTITUTIONALLY ACQUIRE ONE ALREADY BUILT. 

SUCH AN ACQUISITION OR SUCH AN OPTION TO ACQUIRE IS NOT AN INVASION
OF THE SOVEREIGNTY OF A STATE.  AT THE FORMATION OF THE UNION, THE
STATES DELEGATED TO THE FEDERAL GOVERNMENT AUTHORITY TO REGULATE
COMMERCE AMONG THE STATES.  SO LONG AS THE THINGS DONE WITHIN THE
STATES BY THE UNITED STATES ARE VALID UNDER THAT POWER, THERE CAN BE NO
INTERFERENCE WITH THE SOVEREIGNTY OF THE STATE.  IT IS THE NON
DELEGATED POWER WHICH UNDER THE TENTH AMENDMENT REMAINS IN THE STATE OR
THE PEOPLE.  THE WATER POWER STATUTES OF THE UNITED STATES AND OF
VIRGINIA RECOGNIZE THE DIFFICULTIES OF OUR DUAL SYSTEM OF GOVERNMENT BY
PROVIDING, EACH IN ITS OWN ENACTMENTS, FOR THE EXERCISE OF RIGHTS OF
THE OTHER.  FN94 

REVERSED AND REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO
ENTER AN ORDER ENJOINING THE CONSTRUCTION, MAINTENANCE OR OPERATION OF
THE RADFORD PROJECT OTHERWISE THAN UNDER A LICENSE, ACCEPTED BY THE
RESPONDENT WITHIN A REASONABLE TIME, SUBSTANTIALLY IN THE FORM TENDERED
RESPONDENT BY THE FEDERAL POWER COMMISSION ON OR ABOUT MAY 5, 1931, OR
IN THE ALTERNATIVE, AS PRAYED IN THE BILL.  REVERSED.    FN1  30 STAT.
1151, 33 U.S.C. SECS. 401, 403. 

FN2  41 STAT. 1063.  THE ACT WAS AMENDED BY 49 STAT. 838(1935),
U.S.C. SUPP. V, TITLE 16, SEC. 791A ET SEQ., BY WHICH IT BECAME KNOWN
AS THE FEDERAL POWER ACT. 

FN3  SEC. 10(I). 

FN4  36 OP. A.G. 355. 

FN5  ORIGINALLY IT CONSISTED OF THREE CABINET OFFICERS, EX OFFICIO:
THE SECRETARIES OF WAR, INTERIOR, AND AGRICULTURE.  BY 46 STAT. 797 IT
WAS REORGANIZED INTO AN INDEPENDENT COMMISSION WITH FIVE MEMBERS.  THE
NEW COMMISSION BEGAN TO FUNCTION ON DECEMBER 22, 1930. 

FN6  APPALACHIAN ELECTRIC POWER CO. V. SMITH, 67 F.2D 451, CERT.
DENIED, 291 U.S. 674. 

FN7  IN BOTH COURTS BELOW THE GOVERNMENT UNSUCCESSFULLY URGED THAT
THE FINDINGS OF THE COMMISSION, IF SUPPORTED BY SUBSTANTIAL EVIDENCE,
WERE CONCLUSIVE.  ALTHOUGH IT STILL REGARDS THIS CONTENTION AS CORRECT,
THE GOVERNMENT DOES NOT SEEK TO HAVE THIS COURT PASS ON IT IN THIS
CASE. 

FN8  309 U.S. 646. 

FN9  107 F.2D 769, 780, 787. 

FN10  UNITED STATES V. UTAH, 283 U.S. 64, 87. 

FN11  BREWER OIL CO. V. UNITED STATES, 260 U.S. 77, 86; E.G., ALABAMA
POWER CO. V. ICKES, 302 U.S. 464, 477; PICK MFG. CO. V. GENERAL MOTORS
CORP., 299 U.S. 3; TEXAS & N.O.R. CO. V. RY. CLERKS, 281 U.S. 548, 558;
UNITED STATES V. O'DONNELL, 303 U.S. 501, 508. 

FN12  UNITED STATES V. RIO GRANDE IRRIGATION CO., 174 U.S. 690, 699;
LEOVY V. UNITED STATES, 177 U.S. 621; ECONOMY LIGHT CO. V. UNITED
STATES, 256 U.S. 113, 117; UNITED STATES V. HOLT BANK, 270 U.S. 49,
55. 

FN13  GIBBONS V. OGDEN, 9 WHEAT.  1, 189; LEOVY V. UNITED STATES, 177
U.S. 621, 632. 

FN14  GILMAN V. PHILADELPHIA, 3 WALL.  713, 724-25; UNITED STATES V.
COOMBS, 12 PET. 72, 78. 

FN15  WILLSON V. BLACK BIRD CREEK MARSH CO., 2 PET. 245, 250; UNITED
STATES V. RIO GRANDE IRRIGATION CO., 174 U.S. 690, 703. 

FN16  UNITED STATES V. RIVER ROUGE CO., 269 U.S. 411, 419. 

FN17  ST. ANTHONY FALLS WATER POWER CO. V. WATER COMMISSIONERS, 168
U.S. 349, 366; UNITED STATES V. RIO GRANDE IRRIGATION CO., 174 U.S.
690, 702. 

FN18  ARIZONA V. CALIFORNIA, 283 U.S. 423, 452. 

FN19  THE MONTELLO, 20 WALL.  430, 441. 

FN20  UNITED STATES V. UTAH, 283 U.S. 64, 83. 

FN21  10 WALL.  557, 563: 

"  ...  THOSE RIVERS MUST BE REGARDED AS PUBLIC NAVIGABLE RIVERS IN
LAW WHICH ARE NAVIGABLE IN FACT.  AND THEY ARE NAVIGABLE IN FACT WHEN
THEY ARE USED, OR ARE SUSCEPTIBLE OF BEING USED, IN THEIR ORDINARY
CONDITION, AS HIGHWAYS FOR COMMERCE, OVER WHICH TRADE AND TRAVEL ARE OR
MAY BE CONDUCTED IN THE CUSTOMARY MODES OF TRADE AND TRAVEL ON WATER. 
AND THEY CONSTITUTE NAVIGABLE WATERS OF THE UNITED STATES WITHIN THE
MEANING OF THE ACTS OF CONGRESS, IN CONTRADISTINCTION FROM THE
NAVIGABLE WATERS OF THE STATES, WHEN THEY FORM IN THEIR ORDINARY
CONDITION BY THEMSELVES, OR BY UNITING WITH OTHER WATERS, A CONTINUED
HIGHWAY OVER WHICH COMMERCE IS OR MAY BE CARRIED ON WITH OTHER STATES
OR FOREIGN COUNTRIES IN THE CUSTOMARY MODES IN WHICH SUCH COMMERCE IS
CONDUCTED BY WATER." 

UNITED STATES V. APPALACHIAN ELECTRIC POWER CO., 23 F.SUPP.  83, 98;
SAME, 107 F.2D 769, 780. 

FN22  UNITED STATES V. RIO GRANDE IRRIGATION CO., 174 U.S. 690, 698;
BREWER OIL CO. V. UNITED STATES, 260 U.S. 77, 86; UNITED STATES V. HOLT
BANK, 270 U.S. 49, 56; UNITED STATES V. UTAH, 283 U.S. 64, 76; UNITED
STATES V. OREGON, 295 U.S. 1, 15. 

FN23  23 F.SUPP.  AT 99-100. 

FN24  107 F.2D AT 786. 

FN25  UNITED STATES V. OREGON, 295 U.S. 1, 15. 

FN26  THUS IN THE RIO GRANDE CASE, THE RECORD CONTAINED REPORTS OF
ARMY ENGINEERS THAT IMPROVEMENTS NECESSARY TO MAKE THE RIVER NAVIGABLE
WOULD BE FINANCIALLY, IF NOT PHYSICALLY, IMPRACTICABLE BECAUSE OF THE
MANY MILLIONS OF DOLLARS THAT WOULD BE REQUIRED.  THE SUPREME COURT OF
THE TERRITORY OF NEW MEXICO OBSERVED THAT "THE NAVIGABILITY OF A RIVER
DOES NOT DEPEND UPON ITS SUSCEPTIBILITY OF BEING SO IMPROVED BY HIGH
ENGINEERING SKILL AND THE EXPENDITURE OF VAST SUMS OF MONEY, BUT UPON
ITS NATURAL PRESENT CONDITIONS" (9 N.M. 292, 299; 51 P. 674, 676). 
THIS COURT AGREED THAT TOO MUCH IMPROVEMENT WAS NECESSARY FOR THE NEW
MEXICO STRETCH OF THE RIVER TO BE CONSIDERED NAVIGABLE.  UNITED STATES
V. RIO GRANDE IRRIGATION CO., 174 U.S. 690, 699. 

FN27  ECONOMY LIGHT CO. V. UNITED STATES, 256 U.S. 113. 

FN28  SEE 107 F.2D AT 780. 

FN29  SHIVELY V. BOWLBY, 152 U.S. 1, 18 AND 26; UNITED STATES V.
UTAH, 283 U.S. 64, 75. 

FN30  OKLAHOMA V. TEXAS, 258 U.S. 574, 591, 594; UNITED STATES V.
OREGON, 295 U.S. 1, 14. 

FN31  CF. UNITED STATES V. RIO GRANDE IRRIGATION CO., 174 U.S. 690,
699. 

FN32  ART. III, SEC. 2, CL. 1.  CF. GENESEE CHIEF V. FITZHUGH, 12
HOW.  443. 

FN33  THE ROBERT W. PARSONS, 191 U.S. 17, 28; EX PARTE BOYER, 109
U.S. 629; MARINE TRANSIT CO. V. DREYFUS, 284 U.S. 263, 271-72. 

FN34  THE MONTELLO, 20 WALL.  430, 442-43; ECONOMY LIGHT CO. V.
UNITED STATES, 256 U.S. 113, 122; UNITED STATES V. UTAH, 283 U.S. 64,
86.  SEE ALSO MR. JUSTICE MCLEAN IN SPOONER V. MCCONNELL, 22 FED. CAS.
NO. 13,245, AT P. 944(C.C.D. OHIO 1838). 

FN35  ILLUSTRATIVE OF THIS NATURAL GROWTH IS UNITED STATES V. CRESS,
243 U.S. 316, INVOLVING RIPARIAN PROPRIETORS' RIGHTS WHERE IMPROVEMENTS
RAISE THE RIVER LEVEL SO THAT UPLANDS ARE NEWLY AND PERMANENTLY
SUBJECTED TO THE SERVITUDE OF PUBLIC USE FOR NAVIGATION.  COMPENSATION
WAS DECREED FOR THE TAKING WITH A DECLARATION THAT THE WATERWAYS IN
QUESTION, AS ARTIFICIALLY IMPROVED, REMAINED NAVIGABLE WATERS OF THE
UNITED STATES (PP. 325 AND 326).  CF. ARIZONA V. CALIFORNIA, 283 U.S.
423, 454. 

FN36  CF. BARNES V. UNITED STATES, 46 CT. CL. 7, 28. 

FN37  UNITED STATES V. UTAH, 283 U.S. 64; ARIZONA V. CALIFORNIA, 283
U.S. 423, 452-54. 

FN38  UNITED STATES V. UTAH, 283 U.S. 64, 82. 

FN39  ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 329. 

FN40  ECONOMY LIGHT CO. V. UNITED STATES, 256 U.S. 113, 124; ARIZONA
V. CALIFORNIA, 283 U.S. 423, 453. 

FN41  CF. THE MONTELLO, 20 WALL.  430, 441. 

FN42  SEE 23 F.SUPP.  AT 91. 

FN43  THIS IS SHOWN BY THE TESTIMONY OF WEISS, PETERS, STARBUCK,
LANE, E. M. SMITH, FARLEY, KENLEY, LUCAS, E. W. LILLY, W. L. BURKS, Z.
V. BURKS, JOHNSON, WAUHOP, STOVER, R. CALLOWAY, J. C. MARTIN, TOMKIES,
AND B. C. LILLY. 

FN44  E.G., THE TESTIMONY OF R. L. HOWARD, GRAHAM, J. BREEDING, OWEN,
Z. FARMER, H. B. ALLISON, J. H. HOWARD, PETERSON, MOORE, LIKENS, ROOP,
AND INGLES. 

IN 1885 THE ASSISTANT ENGINEER REPORTED THAT "FROM INQUIRIES IT IS
THOUGHT THAT THE CHANNEL-WAY MADE IN FORMER YEARS (ON THE IMPROVED
IRON HAVING BEEN SHIPPED TO NEW RIVER BRIDGE UP TO THE TIME OF THE
SUSPENSION OF THE FURNACES BY THE PREVAILING HARD TIMES" (REPORT OF THE
CHIEF OF ENGINEERS FOR 1886). 

FN45  17 STAT. 376. 

FN46  AT DIFFERENT TIMES BEFORE 1935 FERRIES CROSSED THE RIVER AT NO
LESS THAN TEN POINTS ALONG THE RADFORD-WILEY'S FALLS STRETCH.  IN 1935
THERE WERE FIVE SUCH PUBLIC FERRIES. 

FN47  REPORT OF MOORE AND BRIGGS.  FOURTH AND FIFTH ANNUAL REPORTS OF
THE BOARD OF PUBLIC WORKS TO THE GENERAL ASSEMBLY OF VIRGINIA (1819). 
REPORT OF THE PRINCIPAL ENGINEER OF THE BOARD OF PUBLIC WORKS. 

WHILE MARSHALL WAS CHIEF JUSTICE HE WAS HEAD OF A VIRGINIA COMMISSION
WHICH HAD SURVEYED PART OF THE NEW RIVER BY BOAT IN 1812, BUT ONLY
GOING DOWNSTREAM FROM THE MOUTH OF THE GREENBRIER.  REPORT OF THE
COMMISSIONERS, PRINTED 1816. 

FN48 48 VIRGINIA ACTS OF 1861-62, C. 50. 

FN49  "BUT LITTLE HAS BEEN DONE IN THE WAY OF IMPROVING THE RIVER
SINCE THE TIME OF MOORE AND BRIGGS, THOUGH AN EFFORT IS SAID TO HAVE
BEEN MADE IN THAT DIRECTION BY THE CONFEDERATE GOVERNMENT IN THE LATE
WAR" (REPORT OF CHIEF OF ENGINEERS FOR 1873).  "EXPERIENCE, AS
DEVELOPED BY THE UNIVERSAL FATE OF THE WORK OF THE LATE CONFEDERATE
STATES ON THIS RIVER (THOUGH THIS SEEMS TO HAVE BEEN INJUDICIOUSLY
LOCATED AND POORLY BUILT), IS ADVERSE TO ANYTHING LIKE RIGID STRUCTURES
...  " (REPORT OF CHIEF OF ENGINEERS FOR 1879). 

FN50  TESTIMONY OF SNYDER, SNIDOW, SKEEN. 

FN51  107 F.2D AT 783. 

FN52  SEE 23 F.SUPP.  AT 93; 107 F.2D AT 786. 

TESTIMONY OF BATEAUX GOING FROM RADFORD, OR ABOVE, TO HINTON, IS
GIVEN BY FLANNAGAN, LINKOUS, COLLINS, WEBB, SNYDER. 

A BOAT, 50 FEET BY 8, WITH A GASOLINE MOTOR, WENT FROM RADFORD TO
HINTON IN 1901, THOUGH AFTER THE RIVER HAD BEEN MATERIALLY RAISED BY A
RAIN. 

FN53  E.G., TESTIMONY OF COLEMAN, HOWARD, WEBB, SNYDER, PRICE,
MARTIN, ANDERSON. 

FN54  REPORT OF THE CHIEF OF ENGINEERS FOR 1883.  SEE ALSO TESTIMONY
OF OWEN, CROWELL, DICKINSON. 

FN55  ECONOMY LIGHT CO. V. UNITED STATES, 256 F. 792, 797-98;
AFFIRMED 256 U.S. 113. 

FN56  UNITED STATES V. UTAH, 283 U.S. 64, 82. 

FN57  283 U.S. 64, 81. 

FN58  SEE THE REPORT OF THE MASTER, P. 127 ET SEQ. 

FN59  REPORT FOR 1878, PP. 69, 495-99; 1879, PP. 79, 530-45; 1880,
PP. 107-08, 676-81; 1881, PP. 144-45, 904-11; 1882, PP. 140-42, 913-19;
1883, PP. 144-45, 699-705; 1886, PP. 281-82, 1599-1602. 

FN60  REPORT OF THE CHIEF OF ENGINEERS FOR 1891, P. 303. 

FN61  ID., AT 302-303. 

FN62  32 STAT. 374. 

FN63  HOUSE DOC. NO. 1410, 62ND CONG., 3D SESS., P. 3. 

FN64  CF. UNITED STATES V. APPALACHIAN ELECTRIC POWER CO., 107 F.2D
769, 793 ET SEQ. 

FN65  SECTION 4(A) OF THE ACT ALLOWS THE COMMISSION TO REGULATE THE
LICENSEE'S ACCOUNTS. 


LICENSES OR RIGHTS GRANTED THEREUNDER. 

ADAPTED TO A COMPREHENSIVE PLAN FOR IMPROVING OR DEVELOPING THE
WATERWAY FOR THE USE OR BENEFIT OF INTERSTATE OR FOREIGN COMMERCE, FOR
THE IMPROVEMENT AND UTILIZATION OF WATER-POWER DEVELOPMENT, AND FOR
OTHER BENEFICIAL PUBLIC USES, INCLUDING RECREATIONAL PURPOSES.  UNDER
SEC. 10(C) THE LICENSEE MUST MAINTAIN THE PROJECT ADEQUATELY FOR
NAVIGATION AND FOR EFFICIENT POWER OPERATION, MUST MAINTAIN
DEPRECIATION RESERVES ADEQUATE FOR RENEWALS AND REPLACEMENTS, AND MUST
CONFORM TO THE COMMISSION'S REGULATIONS FOR THE PROTECTION OF LIFE,
HEALTH AND PROPERTY; (D) OUT OF SURPLUS EARNED AFTER THE FIRST 20 YEARS
ABOVE A SPECIFIED REASONABLE RATE OF RETURN, THE LICENSEE MUST MAINTAIN
AMORTIZATION RESERVES TO BE APPLIED IN REDUCTION OF NET INVESTMENT; (E)
THE LICENSEE MUST PAY THE UNITED STATES REASONABLE ANNUAL CHARGES FOR
ADMINISTERING THE ACT, AND DURING THE FIRST 20 YEARS THE UNITED STATES
IS TO EXPROPRIATE EXCESSIVE PROFITS UNTIL THE STATE PREVENTS SUCH
PROFITS; (F) THE LICENSEE MAY BE ORDERED TO REIMBURSE THOSE BY WHOSE
CONSTRUCTION WORK IT IS BENEFITED. 

BY SEC. 11, FOR PROJECTS IN NAVIGABLE WATERS OF THE UNITED STATES THE
COMMISSION MAY REQUIRE THE LICENSEE TO CONSTRUCT LOCKS, ETC., AND TO
FURNISH THE UNITED STATES FREE OF COST (A) LANDS AND RIGHTS-OF-WAY TO
IMPROVE NAVIGATION FACILITIES, AND (B) POWER FOR OPERATING SUCH
FACILITIES. 

LICENSE, TO TAKE OVER AND OPERATE THE PROJECT BY PAYING THE LICENSEE'S
"NET INVESTMENT" AS DEFINED, NOT TO EXCEED FAIR VALUE OF THE PROPERTY
TAKEN.  HOWEVER, THE RIGHT OF THE UNITED STATES OR ANY STATE OR
MUNICIPALITY TO CONDEMN THE PROJECT AT ANY TIME IS EXPRESSLY RESERVED. 

EXISTS, THE COMMISSION MAY EXERCISE SUCH JURISDICTION. 

FN66  DENVER STOCK YARD CO. V. UNITED STATES, 304 U.S. 470, 484;
PACIFIC STATES CO. V. WHITE, 296 U.S. 176, 184. 

FN67  CF. ELECTRIC BOND & SHARE CO. V. SECURITIES & EXCHANGE COMM'N,
303 U.S. 419, 435; W.W. CARGILL CO. V. MINNESOTA, 180 U.S. 452, 468;
NEW JERSEY V. SARGENT, 269 U.S. 328, 339. 

FN68  SEC. 6. 

FN69  MICHIE'S 1936 CODE, SECS. 3581(1)-(16). 

FN70  MICHIE'S 1936 CODE, SECS. 4065A, 4066. 

FN71  CHEROKEE NATION V. GEORGIA, 5 PET. 1, 75; UNITED STATES V. WEST
VIRGINIA, 295 U.S. 463, 474; NEW JERSEY V. SARGENT, 269 U.S. 328; CF.
MCGUINN V. HIGH POINT, 217 N.C. 449, 458; 8 S.E.2D 462. 

FN72  ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 339. 

FN73 NEW JERSEY V. SARGENT, 269 U.S. 328, 337; UNITED STATES V. RIVER
ROUGE CO., 269 U.S. 411, 419; UNITED STATES V. CRESS, 243 U.S. 316,
320; WILLINK V. UNITED STATES, 240 U.S. 572, 580; UNITED STATES V.
CHANDLER-DUNBAR CO., 229 U.S. 53, 62; GIBSON V. UNITED STATES, 166 U.S.
269, 271. 

FN74  GIBBONS V. OGDEN, 9 WHEAT.  1, 196. 

FN75  GILMAN V. PHILADELPHIA, 3 WALL.  713, 725. 

FN76  UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, 64, 65;
UNION BRIDGE CO. V. UNITED STATES, 204 U.S. 364, 400; CF. PENNSYLVANIA
V. WHEELING BRIDGE CO., 13 HOW.  518, 18 HOW.  421. 

FN77  UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, 66, 69, 76;
CF. ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 330. 

FN78  GREENLEAF LUMBER CO. V. GARRISON, 237 U.S. 251, 268; UNITED
STATES V. RIO GRANDE IRRIGATION CO., 174 U.S. 690, 707. 

FN79  255 U.S. 56, 63. 

FN80  295 U.S. 1, 14. 

FN81  206 U.S. 46, 85-86. 

FN82  269 U.S. 411, 419. 

FN83  278 U.S. 367, 415. 

FN84  ART. IV, SEC. 3, CL. 2. 

FN85  CF. UNITED STATES V. HANSON, 167 F. 881, 884; CINCINNATI SOAP
CO. V. UNITED STATES, 301 U.S. 308, 322. 

FN86 CF. SANITARY DISTRICT V. UNITED STATES, 266 U.S. 405, 428. 

FN87  CF. ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288. 

FN88  UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 147.  CF.
MULFORD V. SMITH, 307 U.S. 38, 48. 

FN89  MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312,
327. 

FN90  UNITED STATES V. CHANDLER-DUNBAR CO., 229 U.S. 53, 66, 76. 
FN91  274 U.S. 651. 

FN92  ID., 656. 

FN93  ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288; ARIZONA
V. CALIFORNIA, 283 U.S. 423. 

FN94  SECS. 10E, 14 AND 19 OF THE FEDERAL POWER ACT; MICHIE'S 1936
VIRGINIA CODE, SEC. 3581(9). 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE ROBERTS, DISSENTING: 

THE JUDGMENT OF REVERSAL RESTS ON THE CONCLUSION THAT NEW RIVER IS
NAVIGABLE, - A CONCLUSION RESTING ON FINDINGS OF FACT, MADE HERE DE
NOVO, AND IN CONTRADICTION OF THE CONCURRENT FINDINGS OF THE TWO COURTS
BELOW.  I AM OF OPINION THAT THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS SHOULD BE AFFIRMED, FIRST, BECAUSE THIS COURT OUGHT TO RESPECT
AND GIVE EFFECT TO SUCH CONCURRENT FINDINGS WHICH HAVE SUBSTANTIAL
SUPPORT IN THE EVIDENCE; SECONDLY, BECAUSE THE EVIDENCE WILL NOT
SUPPORT CONTRARY FINDINGS IF THE NAVIGABILITY OF NEW RIVER BE TESTED BY
CRITERIA LONG ESTABLISHED. 

1.  A RIVER IS NAVIGABLE IN LAW IF IT IS NAVIGABLE IN FACT.  FN1
INDEED THE ISSUE OF NAVIGABILITY VEL NON IS SO PECULIARLY ONE OF FACT
THAT A DETERMINATION AS TO ONE STREAM CAN HAVE LITTLE RELEVANCY IN
DETERMINING THE STATUS OF ANOTHER.  AS THIS COURT HAS SAID, "EACH
DETERMINATION AS TO NAVIGABILITY MUST STAND ON ITS OWN FACTS."  FN2 

THE EVIDENCE SUPPORTS,  - INDEED I THINK IT REQUIRES,  - A FINDING
THAT, APPLYING ACCEPTED CRITERIA, NEW RIVER IS NOT, AND NEVER HAS BEEN,
IN FACT NAVIGABLE.  ON THIS RECORD THE RULE OF DECISION, MANY TIMES
ANNOUNCED BY THIS COURT, THAT THE CONCURRENT FINDINGS OF FACT OF TWO
LOWER COURTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, WILL BE ACCEPTED
HERE, REQUIRES AFFIRMANCE OF THE JUDGMENT.  THE RULE APPLIES NOT ONLY
TO EVIDENTIARY FACTS BUT TO CONCLUSIONS OF FACT BASED THEREON. 
MOREOVER, IT HAS BEEN THE BASIS OF THIS COURT'S DECISION IN A SUIT
INVOLVING THE QUESTION OF NAVIGABILITY.  INVOKING THE RULE, THIS COURT,
IN BREWER-ELLIOTT OIL & GAS CO. V. UNITED STATES, 260 U.S. 77, 86,
DECLINED TO REVIEW A JUDGMENT BASED ON A CONCURRENT FINDING OF TWO
LOWER COURTS THAT A STREAM "WAS NOT, AND HAD NEVER BEEN, NAVIGABLE
WITHIN THE ADJUDGED MEANING OF THAT TERM." 

THE CASES CITED FOR THE PROPOSITION THAT WHERE NAVIGABILITY WAS AN
ISSUE THIS COURT HAS RECONSIDERED THE FACTS FOUND BY THE COURTS BELOW
TO DETERMINE WHETHER THEY HAVE CORRECTLY APPLIED THE PROPER LEGAL TESTS
DO NOT, WHEN THE QUESTIONS INVOLVED ARE UNDERSTOOD, LEND SUPPORT TO THE
ACTION OF THE COURT IN THIS CASE.  FN3 

THE PETITIONER, IN EFFECT, ASKS THIS COURT TO CONVICT THE COURTS
BELOW OF ERROR IN DETERMINING THE CREDIBILITY, WEIGHT AND RELEVANCE OF
THE EVIDENCE.  BUT THAT DETERMINATION IS PECULIARLY WITHIN THEIR
PROVINCE, AS THIS COURT HAS OFTEN SAID.  THE DOCTRINE APPLIES IN THIS
CASE WITH ESPECIAL FORCE.  THE RESPONDENT SAYS, WITHOUT CONTRADICTION,
THAT THE GOVERNMENT IN ITS BRIEF IN THE CIRCUIT COURT STATED:  "IT
CANNOT BE SAID THAT THE NEW RIVER PRESENTS A 'CLEAR CASE' OF
NAVIGABILITY OR NON-NAVIGABILITY  ...  "  YET THIS COURT IS ASKED TO
IGNORE CONCURRENT FINDINGS ON THE SUBJECT. 

IF THE EVIDENCE MAY FAIRLY SUPPORT THESE FINDINGS THE COURTS BELOW
CAN BE CONVICTED OF ERROR ONLY IN APPLYING AN ERRONEOUS RULE OF LAW TO
THE FACTS FOUND. 

EXAMINATION OF THE OPINIONS BELOW SHOWS THAT THE COURTS FAITHFULLY
FOLLOWED THE DECISIONS OF THIS COURT IN APPLYING THE LAW TO THE FACTS. 
THEY ADOPTED THE DEFINITION N4 AND APPLIED THE CRITERIA THIS COURT HAS
ANNOUNCED IN APPRAISING THE EFFECT OF THE FACTS FOUND. 

AS SHOWN BY THE CASES CITED IN THE MARGIN  FN5  A STREAM TO BE
NAVIGABLE IN FACT MUST HAVE "A CAPACITY FOR GENERAL AND COMMON
USEFULNESS FOR PURPOSES OF TRADE AND COMMERCE."  EXCEPTIONAL USE OR
CAPABILITY OF USE AT HIGH WATER OR UNDER OTHER ABNORMAL CONDITIONS WILL
NOT SUFFICE.  MOREOVER, THE STREAM MUST BE USED, OR AVAILABLE TO USE,
"FOR COMMERCE OF A SUBSTANTIAL AND PERMANENT CHARACTER."  WHERE THE
STREAM "HAS NEVER BEEN IMPRESSED WITH THE CHARACTER OF NAVIGABILITY BY
PAST USE IN COMMERCE,  ...  COMMERCE ACTUALLY IN ESSE OR AT LEAST IN
POSSE IS ESSENTIAL TO NAVIGABILITY" AND "A THEORETICAL OR POTENTIAL
NAVIGABILITY OR ONE THAT IS TEMPORARY, PRECARIOUS AND UNPROFITABLE IS
NOT SUFFICIENT."  THE MOST IMPORTANT CRITERION BY WHICH TO ASCERTAIN
THE NAVIGABILITY OF A STREAM IS THAT NAVIGABILITY IN FACT MUST EXIST
UNDER "NATURAL AND ORDINARY CONDITIONS."  APPLICATION OF THESE TESTS BY
THE COURT BELOW TO THE EVIDENCE IN THE CASE LED TO BUT ONE CONCLUSION,
- THAT NEW RIVER HAS NOT BEEN, AND IS NOT NOW, A NAVIGABLE WATER OF THE
UNITED STATES.  IF THE FINDINGS BELOW HAD BEEN THE OTHER WAY, THE
GOVERNMENT WOULD BE HERE STRENUOUSLY CONTENDING THAT THEY COULD NOT BE
SET ASIDE, AS IT SUCCESSFULLY DID IN BREWER-ELLIOTT OIL & GAS CO. V.
UNITED STATES, SUPRA. 

2.  THE PETITIONER CONTENDS THAT THE APPLICATION OF THE ACCEPTED
TESTS TO THE FACTS DISCLOSED AMOUNTS TO A RULING OF LAW, AND ASSERTS
THAT ERROR IN THEIR APPLICATION IS REVIEWABLE.  AS I READ THE COURT'S
OPINION, THE ARGUMENT IS NOT FOUND PERSUASIVE.  WHILE APPARENTLY
ENDORSING IT IN THE ABSTRACT THE COURT, INSTEAD OF RELYING ON IT,
ADOPTS TWO ADDITIONAL TESTS IN THE TEETH OF THE UNIFORM CURRENT OF
AUTHORITY.  IF ANYTHING HAS BEEN SETTLED BY OUR DECISIONS IT IS THAT,
IN ORDER FOR A WATER TO BE FOUND NAVIGABLE, NAVIGABILITY IN FACT MUST
EXIST UNDER "NATURAL AND ORDINARY CONDITIONS."  THIS MEANS ALL
CONDITIONS, INCLUDING A MULTIPLICITY OF OBSTACLES, FALLS AND RAPIDS
WHICH MAKE NAVIGATION A PRACTICAL IMPOSSIBILITY.  THE COURT NOW,
HOWEVER, ANNOUNCES THAT "NATURAL AND ORDINARY CONDITIONS" REFERS ONLY
TO VOLUME OF WATER GRADIENTS, AND REGULARITY OF FLOW.  NO AUTHORITY IS
CITED AND I BELIEVE NONE CAN BE FOUND FOR THUS LIMITING THE CONNOTATION
OF THE PHRASE.  BUT FURTHER THE COURT HOLDS, CONTRARY TO ALL THAT HAS
HERETOFORE BEEN SAID ON THE SUBJECT, THAT THE NATURAL AND ORDINARY
CONDITION OF THE STREAM, HOWEVER IMPASSABLE IT MAY BE WITHOUT
IMPROVEMENT, MEANS THAT IF, BY "REASONABLE" IMPROVEMENT, THE STREAM MAY
BE RENDERED NAVIGABLE THEN IT IS NAVIGABLE WITHOUT SUCH IMPROVEMENT;
THAT "THERE MUST BE A BALANCE BETWEEN COST AND NEED AT A TIME WHEN THE
IMPROVEMENT WOULD BE USEFUL."  NO AUTHORITY IS CITED AND I THINK NONE
CAN BE CITED WHICH COUNTENANCES ANY SUCH TEST.  IT IS OF COURSE TRUE
THAT IF A STREAM IN ITS NATURAL AND ORDINARY CONDITION IS NAVIGABLE IT
DOES NOT CEASE TO BE SO BECAUSE IMPROVEMENTS HAVE BETTERED THE
CONDITIONS OF NAVIGATION.  FN6 BUT THE CONVERSE IS NOT TRUE,  - THAT
WHERE A STREAM IN ITS NATURAL AND ORDINARY CONDITION IS NON-NAVIGABLE,
A PROJECT TO BUILD A CANAL ALONG ITS ENTIRE COURSE, OR DAMS AND LOCKS
EVERY FEW MILES, AT ENORMOUS EXPENSE, WOULD RENDER IT A NAVIGABLE WATER
OF THE UNITED STATES.  WHO IS TO DETERMINE WHAT IS A REASONABLE OR AN
UNREASONABLE IMPROVEMENT IN THE CIRCUMSTANCES; OR WHAT IS A PROPER
BALANCE BETWEEN COST AND NEED?  IF THESE QUESTIONS MUST BE ANSWERED IT
IS FOR CONGRESS, CERTAINLY NOT FOR THIS COURT, TO ANSWER THEM.  IF THIS
TEST BE ADOPTED, THEN EVERY CREEK IN EVERY STATE OF THE UNION WHICH HAS
ENOUGH WATER, WHEN CONSERVED BY DAMS AND LOCKS OR CHANNELLED BY WING
DAMS AND SLUICES, TO FLOAT A BOAT DRAWING TWO FEET OF WATER, MAY BE
PRONOUNCED NAVIGABLE BECAUSE, BY THE EXPENDITURE OF SOME ENORMOUS SUM,
SUCH A PROJECT WOULD BE POSSIBLE OF EXECUTION.  IN OTHER WORDS,
CONGRESS CAN CREATE NAVIGABILITY BY DETERMINING TO IMPROVE A NON
NAVIGABLE STREAM. 

IF THIS CRITERION BE THE CORRECT ONE, IT IS NOT SEEN HOW ANY STREAM
CAN BE FOUND NOT TO BE NAVIGABLE NOR IS IT SEEN WHY THIS COURT AND
OTHER FEDERAL COURTS HAVE BEEN AT PAINS FOR MANY YEARS TO APPLY THE
OTHER TESTS MENTIONED WHEN THE SIMPLE SOLUTION OF THE PROBLEM IN EACH
CASE WOULD HAVE BEEN TO SPECULATE AS TO WHETHER, AT "REASONABLE" COST,
THE UNITED STATES COULD RENDER A MOST DIFFICULT AND FORBIDDING MOUNTAIN
TORRENT SUITABLE FOR THE LEAST PRETENTIOUS FORM OF WATER TRAFFIC.  IN
THE LIGHT OF THE COURT'S OPINION, IF THIS TEST BE APPLIED TO THE NEW
RIVER IT MUST, OF COURSE, BE ADMITTED THAT BY BLASTING OUT CHANNELS
THROUGH REEFS AND SHOALS, BY DIGGING CANALS AROUND FALLS AND RAPIDS,
AND POSSIBLY BY DAMS AND LOCKS, THE NEW RIVER COULD BE RENDERED FIT FOR
SOME SORT OF COMMERCIAL USE.  WHAT THE EXPENSE WOULD BE NO ONE KNOWS. 
OBVIOUSLY IT WOULD BE ENORMOUS.  CONGRESS IN THE PAST HAS UNDERTAKEN TO
RENDER THE RIVER NAVIGABLE AND DECADES AGO GAVE UP THE ATTEMPT.  STILL
WE ARE TOLD THAT, AT "REASONABLE" COST, THE THING CAN BE DONE, AND SO
THE STREAM IS NAVIGABLE. 

IN THE LIGHT OF THE GROUNDS UPON WHICH THE DECISION OF THE COURT IS
BASED IT HARDLY SEEMS NECESSARY TO COMMENT ON THE EVIDENCE, FOR IT IS
IN THE MAIN ADDRESSED TO ISSUES NO LONGER IN THE CASE.  THE TWO COURTS
BELOW HAVE ANALYZED IT AND EXAMINED IT IN DETAIL AND REFERENCE TO THEIR
CAREFULLY CONSIDERED OPINIONS SUFFICES.  FN7  I THINK THE CONCLUSION
REACHED BY THE COURTS BELOW MUST STAND UNLESS THE TWO NOVEL DOCTRINES
NOW ANNOUNCED BE THROWN INTO THE SCALE TO OVERCOME IT. 

FN1  OKLAHOMA V. TEXAS, 258 U.S. 574, 585, 590-1; ARIZONA V.
CALIFORNIA, 283 U.S. 423, 452; CROWELL V. BENSON, 285 U.S. 22, 55. 

FN2  UNITED STATES V. UTAH, 283 U.S. 64, 87. 

FN3  THE CASES CITED ARE UNITED STATES V. RIO GRANDE IRRIGATION CO.,
174 U.S. 690, 699, WHERE THIS COURT SAID WITH RESPECT TO THE FINDINGS:
"WE ARE NOT, THEREFORE, DISPOSED TO QUESTION THE CONCLUSION REACHED,"
BY THE COURTS BELOW; LEOVY V. UNITED STATES, 177 U.S. 621, WHERE A
JUDGMENT ON A JURY'S VERDICT WAS REVERSED FOR ERROR IN THE JUDGE'S
INSTRUCTIONS AS TO THE CRITERIA OF NAVIGABILITY; ECONOMY LIGHT CO. V.
UNITED STATES, 256 U.S. 113, 117, WHERE THE COURT DID NOT REEXAMINE THE
FACTS BUT AFFIRMED THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS, AS
THAT COURT HAD CORRECTLY APPLIED THE TEST LAID DOWN IN THE DANIEL BALL;
AND UNITED STATES V. HOLT BANK, 270 U.S. 49, 55, WHERE THE COURTS BELOW
TREATED THE QUESTION OF NAVIGABILITY AS ONE OF LOCAL LAW TO BE
DETERMINED BY APPLYING THE RULE ADOPTED IN MINNESOTA, AND THIS COURT,
THOUGH HOLDING THAT THEY APPLIED THE WRONG STANDARD, AS THE QUESTION
WAS ONE OF FEDERAL LAW, AFFIRMED THE FINDINGS, INSTEAD OF REMANDING THE
CASE, SINCE THE RECORD DISCLOSED THAT ACCORDING TO THE RIGHT STANDARD
THE WATER WAS NAVIGABLE. 

FN4  CF.  THE DANIEL BALL, 10 WALL.  557; THE MONTELLO, 11 WALL. 
411, 415; UNITED STATES V. OREGON, 295 U.S. 1, 23. 

FN5  THE MONTELLO, 20 WALL.  430; UNITED STATES V. RIO GRANDE CO.,
174 U.S. 690; LEOVY V. UNITED STATES, 177 U.S. 621; DONNELLY V. UNITED
STATES, 228 U.S. 243; UNITED STATES V. CRESS, 243 U.S. 316; OKLAHOMA V.
TEXAS, 258 U.S. 574; UNITED STATES V. HOLT STATE BANK, 270 U.S. 49;
UNITED STATES V. OREGON, 295 U.S. 1; HARRISON V. FITE, 148 F. 781; GULF
& I. RY. CO. V. DAVIS, 26 F.2D 930, 31 F.2D 109; UNITED STATES V.
DOUGHTON, 62 F.2D 936. 

FN6  ECONOMY LIGHT CO. V. UNITED STATES, 256 U.S. 113. 

FN7  23 F.SUPP.  83; 107 F.2D 769. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 
..END :







WISCONSIN V. J.C. PENNEY CO., 311 U.S. 435 


NO. 46.  ARGUED NOVEMBER 20, 1940.  - DECIDED DECEMBER 16, 1940.  - 233
WIS. 286 - 289 N.W. 677, REVERSED. 


1.  WITH RESPECT TO DOMESTIC AND FOREIGN CORPORATIONS, WISCONSIN
IMPOSES A TAX "FOR THE PRIVILEGE OF DECLARING AND RECEIVING DIVIDENDS"
OUT OF INCOME DERIVED FROM PROPERTY LOCATED AND BUSINESS TRANSACTED IN
THE STATE, EQUAL TO A SPECIFIED PERCENTAGE OF SUCH DIVIDENDS, THE PAYOR
CORPORATION BEING REQUIRED TO DEDUCT THE TAX FROM THE DIVIDENDS,
PAYABLE TO RESIDENTS OR NON-RESIDENTS, AND TO REPORT AND PAY IT OVER TO
THE STATE.  HELD: 

(1)  THAT THE PRACTICAL OPERATION IS TO IMPOSE A TAX ON CORPORATE
EARNINGS WITHIN WISCONSIN, IN ADDITION TO THE GENERAL TAX ON CORPORATE
INCOME, BUT TO POSTPONE LIABILITY FOR THE TAX UNTIL SUCH EARNINGS ARE
PAID OUT IN DIVIDENDS.  P. 441. 

(2)  THE TAX IS CONSTITUTIONAL - CONSISTENT WITH THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT - AS APPLIED TO A DELAWARE
CORPORATION HAVING ITS PRINCIPAL OFFICES IN NEW YORK, HOLDING ITS
MEETINGS AND VOTING ITS DIVIDENDS IN NEW YORK, AND DRAWING ITS DIVIDEND
CHECKS ON NEW YORK BANK ACCOUNTS.  P. 442. 

2.  THE CONSTITUTIONALITY OF A STATE TAX DEPENDS UPON ITS OPERATING
INCIDENCE AND NOT UPON THE NAME OR DESCRIPTION ASSIGNED TO IT BY THE
STATE SUPREME COURT.  P. 443. 

3.  THE PRIVILEGE GRANTED BY A STATE TO A FOREIGN CORPORATION OF
CARRYING ON LOCAL BUSINESS SUPPORTS A TAX BY THAT STATE ON THE INCOME
DERIVED FROM THAT BUSINESS.  P. 444. 

4.  THE FACT THAT SUCH A TAX IS BY THE STATE LAW IMPOSING IT MADE
CONTINGENT UPON THE HAPPENING OF EVENTS OUTSIDE OF THE TAXING STATE -
AS IN THIS CASE, UPON THE DECLARATION AND PAYMENT OF DIVIDENDS FROM THE
LOCAL EARNINGS - DOES NOT DESTROY THE NEXUS BETWEEN THE TAX AND THE
LOCAL TRANSACTIONS FOR WHICH IT IS AN EXACTION.  P. 445. 

5.  CONNECTICUT GENERAL CO. V. JOHNSON, 303 U.S. 77, DISTINGUISHED. 
P. 445. 

WISCONSIN ET AL. V. J.C. PENNEY CO. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

CERTIORARI, 310 U.S. 618, TO REVIEW THE REVERSAL OF A JUDGMENT WHICH
CONFIRMED AN ORDER OF THE WISCONSIN TAX COMMISSION ASSESSING A TAX. 

MR. W. H. DANNAT PELL, WITH WHOM MESSRS.  ROSWELL DEAN PINE, JR. AND
G. BURGESS ELA WERE ON THE BRIEF, FOR RESPONDENT. 

THE STATE HAD NO JURISDICTION TO TAX THE CORPORATE SURPLUS AT THE
TIME THE DIVIDENDS WERE PAID, NOTWITHSTANDING THAT SUCH SURPLUS MAY
HAVE INCLUDED FUNDS DERIVED IN PART FROM EARNINGS IN WISCONSIN; NOR TO
TAX THE PART MADE UP OF SUCH EARNINGS.  NEWARK FIRE INSURANCE CO. V.
STATE BOARD, 307 U.S. 313. 

THE CONCEPT OF BUSINESS SITUS IS SUSCEPTIBLE OF MORE OR LESS EXACT
DEFINITION, AND THE FACTS UPON WHICH AN ALLEGED BUSINESS SITUS IS BASED
MUST BE SHOWN WITH PARTICULARITY IF THE PRESUMPTION FAVORING
DOMICILIARY TAXATION IS TO BE REBUTTED. 

THE RECORD DISCLOSES THAT FUNDS CONSISTING OF THE PROCEEDS OF SALES
OF MERCHANDISE IN WISCONSIN (AND IN OTHER STATES), NOT NEEDED TO MEET
LOCAL PAYROLLS, RENTS, ADVERTISING AND OTHER LOCAL EXPENSES, ARE
DEPOSITED TO THE GENERAL CREDIT OF THE RESPONDENT IN NEW YORK BANKS. 
THE FUNDS SO DEPOSITED ARE USED TO PAY SALARIES, GENERAL OVERHEAD OF
THE NEW YORK OFFICE, ACCOUNTS PAYABLE FOR MERCHANDISE PURCHASED, AND
TAXES.  DIVIDENDS ARE ALSO PAID FROM THESE NEW YORK BANK ACCOUNTS. 
AFTER LEAVING WISCONSIN THE FUNDS COMPLETELY LOSE THEIR IDENTITY AS FAR
AS HAVING BEEN DERIVED FROM ANY PARTICULAR SOURCE, AND THERE IS NO ONE
IN WISCONSIN WHO HAS ANYTHING TO DO WITH THEM. 

IT IS POSSIBLE THAT FUNDS SO DEPOSITED AND USED GAINED A BUSINESS
SITUS IN NEW YORK, SINCE THE ACTIVITIES OF THE COMPANY MIGHT
CONCEIVABLY BE SAID TO BE SUFFICIENT TO GIVE IT A COMMERCIAL DOMICILE
THERE UNDER THE RULE LAID DOWN IN WHEELING STEEL CORP. V. FOX, 298 U.S.
193.  THERE IS NOTHING IN THE FACTS OF THIS CASE, HOWEVER, EXCEPT THE
FACT OF PARTIAL DERIVATION FROM WISCONSIN, UPON WHICH TO BASE AN
ALLEGED BUSINESS SITUS, IN THAT STATE, OF THE NEW YORK BANK ACCOUNTS
USED TO PAY THE DIVIDENDS. 

WE KNOW OF NO CASE WHICH INDICATES THAT DERIVATION OF EARNINGS ALONE
IS OR MIGHT BE SUFFICIENT TO GIVE BANK ACCOUNTS CONTAINING THEM A TAX
SITUS IN THE STATE OF DERIVATION.  MANY AFFIRMATIVELY INDICATE THAT IT
IS NOT.  CONNECTICUT GENERAL LIFE INS. CO. V. JOHNSON, 303 U.S. 77;
EQUITABLE LIFE SOCIETY V. PENNSYLVANIA, 238 U.S. 143; PROVIDENT SAVINGS
ASSN. V. KENTUCKY, 239 U.S. 103; BEIDLER V. SOUTH CAROLINA TAX COMM'N,
282 U.S. 1; RHODE ISLAND TRUST CO. V. DOUGHTON, 270 U.S. 69. 

THE TAX CAN NOT BE SUSTAINED AS AMOUNTING TO AN INCOME TAX UPON
FOREIGN CORPORATIONS DOING BUSINESS WITHIN THE STATE.  IT IS NOT AN
INCOME TAX BUT AN EXCISE UPON "THE PAYMENT AND RECEIPT OF DIVIDENDS." 
THE SUBJECT OF AN INCOME TAX IS INCOME EARNED WITHIN THE STATE.  HOPE
GAS CO. V. HALL, 274 U.S. 284; ADAMS MFG. CO. V. STOREN, 304 U.S. 307,
313; DELAWARE, L. & W.R. CO. V. PENNSYLVANIA, 198 U.S. 341. 

IN THE CASE OF A FOREIGN CORPORATION THE BASIS OF JURISDICTION TO
LEVY AN INCOME TAX IS THAT THE INCOME ACCRUED IN THE STATE.  AS THE
INCOME IS EARNED, LIABILITY TO PAY THE TAX IS INCURRED.  AS INCOME MAY
BE SAID TO REPRESENT A CONTINUOUS FLOW, THE CALCULATION OF THE TAX IS
SIMPLY DEFERRED UNTIL A GIVEN DATE FOR CONVENIENCE IN MEASUREMENT.  THE
FACT THAT THE INCOME MAY HAVE BEEN WITHDRAWN FROM THE STATE BEFORE THIS
CALCULATION DATE ARRIVED IS IMMATERIAL.  THIS DOES NOT MEAN, HOWEVER,
THAT THE TAX MAY BE REGARDED AS BEING IMPOSED UPON A PROPORTIONATE PART
OF THE CORPORATE SURPLUS AS OF THE RETURN DAY.  IT SIMPLY MEANS THAT
THE CORPORATION EARNING THE INCOME MUST PAY THE STATE'S "METERAGE"
CHARGE OR RENDER ITS PROPERTY WITHIN THE STATE SUBJECT TO EXECUTION. 

ALTHOUGH SUBSECTION (4) OF THE STATUTE CONTAINS A PRESUMPTION THAT
DIVIDENDS OF CORPORATIONS DOING BUSINESS BOTH INSIDE AND OUTSIDE OF THE
STATE ARE PAID FROM EARNINGS ATTRIBUTABLE TO WISCONSIN FOR THE
PRECEDING YEAR, THE TAX IS NOT LIMITED TO CASES IN WHICH THIS
PRESUMPTION IS NOT REBUTTED.  UNDER THE LAW, IT WOULD APPEAR THAT, EVEN
THOUGH A CORPORATE SURPLUS HAD BEEN ACCUMULATED FOR TWENTY YEARS AND NO
WISCONSIN EARNINGS REALIZED DURING THAT PERIOD, THE STATE TAX
COMMISSION WOULD STILL BE OBLIGED TO DETERMINE WHAT PART OF A DIVIDEND
PAID BY SUCH CORPORATION CONSISTED OF FUNDS ATTRIBUTABLE TO WISCONSIN
EARNINGS, AND ASSESS A TAX THEREON. 

THE CONTENTION THAT THE TAX SHOULD BE TREATED AS A CORPORATE INCOME
TAX, NOTWITHSTANDING THE DECISION OF THE STATE SUPREME COURT TO THE
CONTRARY, IGNORES THE PRINCIPLE THAT THIS COURT IS BOUND BY THE
CONSTRUCTION GIVEN THE LAW BY THE STATE SUPREME COURT.  KNIGHTS OF
PYTHIAS V. MEYER, 265 U.S. 30; GUARANTY TRUST CO. V. BLODGETT, 287 U.S.
509.  PETITIONERS ARE FORECLOSED FROM ASSERTING IT HERE. 

THE INCIDENCE OF THE TAX IS UPON THE DECLARATION AND RECEIPT OF
DIVIDENDS AND NOT UPON THE EARNING OF INCOME.  AMERICAN MFG. CO. V. ST.
LOUIS, 250 U.S. 459; HOPE GAS CO. V. HALL, 274 U.S. 284. 

IT IS MOST LIKELY THAT A VERY LARGE PROPORTION OF INCOME REALIZED IN
ONE STATE BY A CORPORATION DOING BUSINESS IN SEVERAL WILL NEVER BE PAID
OUT IN DIVIDENDS. 

THERE IS NO SUCH CLOSE CONNECTION BETWEEN THE EARNING OF INCOME IN
WISCONSIN BY A FOREIGN CORPORATION, WHICH DOES BUSINESS BOTH WITHIN AND
WITHOUT THE STATE, AND ITS PAYMENT OF DIVIDENDS AS TO RENDER A TAX UPON
THE ONE A TAX UPON THE OTHER.  COLORADO NATIONAL BANK V. BEDFORD, 310
U.S. 41, 52.  CF., TRAVIS V. YALE & TOWNE MFG. CO., 252 U.S. 60. 

PETITIONERS HAVE ADVANCED NO CONTENTION THAT THE TAX SHOULD BE
SUSTAINED AS AN INCOME TAX UPON STOCKHOLDERS, AND IT WOULD APPEAR TO BE
TOO CLEAR TO ADMIT OF SERIOUS CONTROVERSY THAT THE STATE OF WISCONSIN
MAY NOT IMPOSE AN INCOME TAX UPON RESPONDENT'S NONRESIDENT
STOCKHOLDERS.  SEE DOMENECH V. UNITED PORTO RICAN SUGAR CO., 62 F.2D
562; CERT. DEN.  289 U.S. 739.  AN EFFORT TO DO THIS WOULD AMOUNT TO A
DISREGARD OF RESPONDENT'S CORPORATE ENTITY, AND THIS MAY NOT BE DONE. 
RHODE ISLAND TRUST CO. V. DOUGHTON, 270 U.S. 69; KLEIN V. BOARD OF
SUPERVISORS, 282 U.S. 19; BEIDLER V. SOUTH CAROLINA TAX COMM'N, 282
U.S. 1; ELLINGER V. WISCONSIN STATE TAX COMM'N, 229 WIS. 71. 

THE ASSESSMENT IS FURTHER VOID BECAUSE THE TAX WAS CALCULATED
PURSUANT TO THE STATUTORY PRESUMPTION THAT THE DIVIDENDS WERE PAID FROM
THE PREVIOUS YEAR'S INCOME AND CONTAINED AN EXACTLY PROPORTIONATE PART
OF THE WISCONSIN EARNINGS FOR SUCH YEAR.  SUCH PRESUMPTION IS PLAINLY
NOT IN ACCORD WITH THE FACTS AND IS, THEREFORE, EITHER REBUTTED OR IS
VOID AS ARBITRARY AND UNREASONABLE.  IF ITS EFFECT IS TO ESTABLISH A
RULE OF SUBSTANTIVE LAW REQUIRING FOREIGN CORPORATIONS TO DECLARE THEIR
DIVIDENDS FROM ANY PARTICULAR SOURCE, SUCH A PRESUMPTION IS AN
UNCONSTITUTIONAL ATTEMPT TO REGULATE THE ACTIVITIES OF FOREIGN
CORPORATIONS OUTSIDE OF THE STATE. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WHETHER THE TAX IMPOSED BY SEC. 3 OF CHAPTER 505 OF THE WISCONSIN
LAWS OF 1935 MAY APPLY TO A FOREIGN CORPORATION LICENSED TO DO BUSINESS
IN WISCONSIN WITHOUT OFFENDING THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION IS THE QUESTION BEFORE US.  THE STATUTE IS QUOTED IN THE
MARGIN.  FN1 WHEN THIS QUESTION ORIGINALLY CAME BEFORE THE SUPREME
COURT OF WISCONSIN IT FOUND NO CONSTITUTIONAL INFIRMITY IN SUCH AN
EXACTION.  STATE EX REL. FROEDTERT G. & M. CO. V. TAX COMMISSION, 221
WIS. 225; 265 N.W. 672; 267 N.W. 52.  BUT DEEMING ITSELF CONSTRAINED BY
ITS READING OF THIS COURT'S DECISION IN CONNECTICUT GENERAL CO. V.
JOHNSON, 303 U.S. 77, THE WISCONSIN SUPREME COURT IN THE PRESENT CASE
FOUND THAT THE STATUTE RAN AFOUL THE DUE PROCESS CLAUSE INSOFAR AS IT
COVERED LOCALLY LICENSED FOREIGN CORPORATIONS.  233 WIS. 286; 289 N.W.
677.  INASMUCH AS IMPORTANT ISSUES AFFECTING THE EXERTION OF THE TAXING
POWER OF THE STATES ARE INVOLVED, WE BROUGHT THIS AND ITS COMPANION
CASES HERE.  310 U.S. 618, 619. 

FOR MANY YEARS, CORPORATIONS CHARTERED BY OTHER STATES BUT PERMITTED
TO CARRY ON BUSINESS IN WISCONSIN HAVE BEEN SUBJECT TO A GENERAL
CORPORATE INCOME TAX ACT ON EARNINGS ATTRIBUTABLE TO THEIR WISCONSIN
ACTIVITIES.  THE STATE HAS, OF COURSE, POWER TO IMPOSE SUCH A TAX. 
U.S. GLUE CO. V. OAK CREEK, 247 U.S. 321; UNDERWOOD TYPEWRITER CO. V.
CHAMBERLAIN, 254 U.S. 113.  "FOR THE PRIVILEGE OF DECLARING AND
RECEIVING DIVIDENDS, OUT OF INCOME DERIVED FROM PROPERTY LOCATED AND
BUSINESS TRANSACTED IN" WISCONSIN, AN EXACTION "EQUAL TO TWO AND ONE
HALF PER CENTUM OF THE AMOUNT OF SUCH DIVIDENDS DECLARED AND PAID BY
ALL CORPORATIONS (FOREIGN AND LOCAL)" IS THE ADDITIONAL TAX NOW BEFORE
US.  IN THE ENFORCEMENT OF THIS MEASURE AGAINST FOREIGN CORPORATIONS,
THE AMOUNT OF INCOME ATTRIBUTABLE TO WISCONSIN IS CALCULATED ACCORDING
TO THE SAME FORMULA AS THAT EMPLOYED IN ASSESSING THE GENERAL CORPORATE
INCOME TAX PAID BY SUCH FOREIGN CORPORATIONS.  THE PRACTICAL OPERATION
OF THIS LEGISLATION IS TO IMPOSE AN ADDITIONAL TAX ON CORPORATE
EARNINGS WITHIN WISCONSIN BUT TO POSTPONE THE LIABILITY FOR THIS TAX
UNTIL SUCH EARNINGS ARE PAID OUT IN DIVIDENDS.  IN A WORD, BY ITS
GENERAL INCOME TAX WISCONSIN TAXES CORPORATE INCOME THAT IS TAKEN IN;
BY THE PRIVILEGE DIVIDEND TAX OF 1935 WISCONSIN SUPERIMPOSED UPON THIS
INCOME TAX A TAX ON CORPORATE INCOME THAT IS PAID OUT. 

AS PRESSURES FOR NEW REVENUES BECOME MORE AND MORE INSISTENT, WAYS
AND MEANS OF MEETING THEM PRESENT TO A STATE NOT ONLY THE BAFFLING TASK
OF TAPPING FRESH SOURCES OF REVENUE BUT OF DOING SO WITH DUE REGARD TO
A STATE'S EXISTING TAXING SYSTEM.  THE TAX NOW ASSAILED GAINS
NOURISHING SIGNIFICANCE WHEN PLACED IN THE CONTEXT OF THE WISCONSIN
TAXING SYSTEM OF WHICH IT BECAME A PART.  WISCONSIN RELIED HEAVILY UPON
TAXATION OF INCOMES AND LARGELY LOOKED TO THIS SOURCE TO MEET THE
INCREASING DEMANDS OF THE DEPRESSION YEARS.  BUT A SPECIAL WISCONSIN
FEATURE WAS EXEMPTION OF DIVIDENDS FROM PERSONAL TAXATION.  SEE WELCH
V. HENRY, 305 U.S. 134, 142-43.  THIS EXEMPTION PERSISTED WHILE REGULAR
AND SURTAX RATES AGAINST PERSONAL INCOMES WERE RAISED.  ATTEMPTS AT
RELIEF FROM THE UNFAIRNESS CHARGED AGAINST THIS EXEMPTION OF DIVIDENDS,
PARTICULARLY ADVANTAGEOUS TO THE HIGHER BRACKETS, WERE STEADILY PRESSED
BEFORE THE WISCONSIN LEGISLATURE.  TO RELIEVE LOCAL EARNINGS OF FOREIGN
CORPORATIONS FROM A DIVIDEND TAX WOULD HAVE HAD A DEPRESSIVE EFFECT ON
WHOLLY LOCAL ENTERPRISES.  THE PRIVILEGE DIVIDEND TAX WAS DEVISED TO
REDUCE AT LEAST IN PART THE STATE'S REVENUE LOSSES DUE TO DIVIDEND
EXEMPTIONS, AND ALSO TO EQUALIZE THE BURDENS ON ALL WISCONSIN EARNINGS,
REGARDLESS OF THE FORMAL HOME OF THE CORPORATION. 

HAD WISCONSIN, AS PART OF ITS PRICE FOR THE PRIVILEGES IT AFFORDED
FOREIGN CORPORATIONS WITHIN ITS BORDERS, EXPLICITLY PROVIDED FOR A
SUPPLEMENTARY TAX ON THE WISCONSIN EARNINGS OF SUCH CORPORATIONS, BUT
POSTPONED LIABILITY FOR THE TAX UNTIL SUCH EARNINGS WERE TO BE PAID OUT
IN DIVIDENDS, THE POWER OF WISCONSIN TO DO SO WOULD HARDLY BE
QUESTIONED.  COMPARE CONTINENTAL ASSURANCE CO. V. TENNESSEE, ANTE, P.
5.  BUT BECAUSE THE LEGISLATIVE LANGUAGE RAN "FOR THE PRIVILEGE OF
DECLARING AND RECEIVING DIVIDENDS, OUT OF INCOME DERIVED FROM PROPERTY
LOCATED AND BUSINESS TRANSACTED IN THIS STATE" THE COURT BELOW RAISED
THE BARRIER OF THE FOURTEENTH AMENDMENT.  RESPONDENT IS A DELAWARE
CORPORATION HAVING ITS PRINCIPAL OFFICES IN NEW YORK; ITS MEETINGS ARE
HELD IN THE LATTER STATE WHERE THE DIVIDENDS ARE VOTED AND THE DIVIDEND
CHECKS ARE DRAWN ON NEW YORK BANK ACCOUNTS.  SINCE THE PROCESS FOR
DECLARING DIVIDENDS AND THE DETAILS ATTENDING THEIR DISTRIBUTION AMONG
THE STOCKHOLDERS TRANSPIRED OUTSIDE WISCONSIN, ALTHOUGH THE EXACTION
WAS APPORTIONED TO THE EARNINGS DERIVED FROM WISCONSIN, THE STATE COURT
CONCLUDED THAT THE TAX WAS AN ATTEMPT BY WISCONSIN TO LEVY AN EXACTION
ON TRANSACTIONS BEYOND WISCONSIN'S BORDERS. 

THE CASE THUS REDUCES ITSELF TO THE INQUIRY WHETHER WISCONSIN HAS
TRANSGRESSED ITS TAXING POWER BECAUSE ITS SUPREME COURT HAS DESCRIBED
THE PRACTICAL RESULT OF THE EXERTION OF THAT POWER BY ONE LEGAL FORMULA
RATHER THAN ANOTHER - HAS LABELED IT A TAX ON THE PRIVILEGE OF
DECLARING DIVIDENDS RATHER THAN A SUPPLEMENTARY INCOME TAX. 

A TAX IS AN EXACTION.  ASCERTAINMENT OF THE SCOPE OF THE EXACTION -
WHAT IS INCLUDED IN IT - IS FOR THE STATE COURT.  BUT THE DESCRIPTIVE
PIGEON-HOLE INTO WHICH A STATE COURT PUTS A TAX IS OF NO MOMENT IN
DETERMINING THE CONSTITUTIONAL SIGNIFICANCE OF THE EXACTION.  "IN
WHATEVER LANGUAGE A STATUTE MAY BE FRAMED, ITS PURPOSE MUST BE
DETERMINED BY ITS NATURAL AND REASONABLE EFFECT."  HENDERSON V. MAYOR
OF NEW YORK, 92 U.S. 259, 268.  SUCH HAS BEEN THE REPEATED IMPORT OF
THE CASES WHICH ONLY RECENTLY WERE WELL SUMMARIZED BY THE GUIDING
FORMULATION FOR ADJUDICATING A TAX MEASURE, THAT "IN PASSING ON ITS
CONSTITUTIONALITY WE ARE CONCERNED ONLY WITH ITS PRACTICAL OPERATION,
NOT ITS DEFINITION OR THE PRECISE FORM OF DESCRIPTIVE WORDS WHICH MAY
BE APPLIED TO IT."  LAWRENCE V. STATE TAX COMMISSION, 286 U.S. 276,
280. 

THE CONSTITUTION IS NOT A FORMULARY.  IT DOES NOT DEMAND OF STATES
STRICT OBSERVANCE OF RIGID CATEGORIES NOR PRECISION OF TECHNICAL
PHRASING IN THEIR EXERCISE OF THE MOST BASIC POWER OF GOVERNMENT, THAT
OF TAXATION.  FOR CONSTITUTIONAL PURPOSES THE DECISIVE ISSUE TURNS ON
THE OPERATING INCIDENCE OF A CHALLENGED TAX.  A STATE IS FREE TO PURSUE
ITS OWN FISCAL POLICIES, UNEMBARRASSED BY THE CONSTITUTION, IF BY THE
PRACTICAL OPERATION OF A TAX THE STATE HAS EXERTED ITS POWER IN
RELATION TO OPPORTUNITIES WHICH IT HAS GIVEN, TO PROTECTION WHICH IT
HAS AFFORDED, TO BENEFITS WHICH IT HAS CONFERRED BY THE FACT OF BEING
AN ORDERLY, CIVILIZED SOCIETY.    CONSTITUTIONAL PROVISIONS ARE OFTEN
SO GLOSSED OVER WITH COMMENTARY THAT IMPERCEPTIBLY WE TEND TO CONSTRUE
THE COMMENTARY RATHER THAN THE TEXT.  WE CANNOT, HOWEVER, BE TOO OFTEN
REMINDED THAT THE LIMITS ON THE OTHERWISE AUTONOMOUS POWERS OF THE
STATES ARE THOSE IN THE CONSTITUTION AND NOT VERBAL WEAPONS IMPORTED
INTO IT.  "TAXABLE EVENT," "JURISDICTION TO TAX," "BUSINESS SITUS,"
"EXTRATERRITORIALITY," ARE ALL COMPENDIOUS WAYS OF IMPLYING THE
IMPOTENCE OF STATE POWER BECAUSE STATE POWER HAS NOTHING ON WHICH TO
OPERATE.  THESE TAGS ARE NOT INSTRUMENTS OF ADJUDICATION BUT STATEMENTS
OF RESULT IN APPLYING THE SOLE CONSTITUTIONAL TEST FOR A CASE LIKE THE
PRESENT ONE.  THAT TEST IS WHETHER PROPERTY WAS TAKEN WITHOUT DUE
PROCESS OF LAW, OR, IF PARAPHRASE WE MUST, WHETHER THE TAXING POWER
EXERTED BY THE STATE BEARS FISCAL RELATION TO PROTECTION, OPPORTUNITIES
AND BENEFITS GIVEN BY THE STATE.  THE SIMPLE BUT CONTROLLING QUESTION
IS WHETHER THE STATE HAS GIVEN ANYTHING FOR WHICH IT CAN ASK RETURN. 
THE SUBSTANTIAL PRIVILEGE OF CARRYING ON BUSINESS IN WISCONSIN, WHICH
HAS HERE BEEN GIVEN, CLEARLY SUPPORTS THE TAX, AND THE STATE HAS NOT
GIVEN THE LESS MERELY BECAUSE IT HAS CONDITIONED THE DEMAND OF THE
EXACTION UPON HAPPENINGS OUTSIDE ITS OWN BORDERS.  THE FACT THAT A TAX
IS CONTINGENT UPON EVENTS BROUGHT TO PASS WITHOUT A STATE DOES NOT
DESTROY THE NEXUS BETWEEN SUCH A TAX AND TRANSACTIONS WITHIN A STATE
FOR WHICH THE TAX IS AN EXACTION.  SEE CONTINENTAL ASSURANCE CO. V.
TENNESSEE, SUPRA.  SEE ALSO EQUITABLE LIFE SOCIETY V. PENNSYLVANIA, 238
U.S. 143; MAXWELL V. BUGBEE, 250 U.S. 525; COMPANIA DE TABACOS V.
COLLECTOR, 275 U.S. 87, 98; NEW YORK EX REL. COHN V. GRAVES, 300 U.S.
308; ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S. 412; ATLANTIC
REFINING CO. V. VIRGINIA, 302 U.S. 22; CURRY V. MCCANLESS, 307 U.S.
357. 

THIS ANALYSIS IS MERELY A REFORMULATION OF THE CLASSIC APPROACH OF
THIS COURT TO THE TAXING POWER OF THE STATES.  LAWRENCE V. STATE TAX
COMMISSION, SUPRA, P. 280.  AMBIGUOUS INTIMATIONS OF GENERAL PHRASES IN
OPINIONS TORN FROM THE SIGNIFICANCE OF CONCRETE CIRCUMSTANCES, OR EVEN
OCCASIONAL DEVIATIONS OVER A LONG COURSE OF YEARS, NOT UNNATURAL IN
VIEW OF THE CONFUSING COMPLEXITIES OF TAX PROBLEMS, DO NOT ALTER THE
LIMITED NATURE OF THE FUNCTION OF THIS COURT WHEN STATE TAXES COME
BEFORE IT.  AT BEST, THE RESPONSIBILITY FOR DEVISING JUST AND
PRODUCTIVE SOURCES OF REVENUE CHALLENGES THE WIT OF LEGISLATORS. 
NOTHING CAN BE LESS HELPFUL THAN FOR COURTS TO GO BEYOND THE EXTREMELY
LIMITED RESTRICTIONS THAT THE CONSTITUTION PLACES UPON THE STATES AND
TO INJECT THEMSELVES IN A MERELY NEGATIVE WAY INTO THE DELICATE
PROCESSES OF FISCAL POLICY-MAKING.  WE MUST BE ON GUARD AGAINST
IMPRISONING THE TAXING POWER OF THE STATES WITHIN FORMULAS THAT ARE NOT
COMPELLED BY THE CONSTITUTION BUT MERELY REPRESENT JUDICIAL
GENERALIZATIONS EXCEEDING THE CONCRETE CIRCUMSTANCES WHICH THEY PROFESS
TO SUMMARIZE. 

NOR DOES CONNECTICUT GENERAL CO. V. JOHNSON, SUPRA, PRESENT A BARRIER
AGAINST WHAT WISCONSIN HAS DONE.  ITS PRESUPPOSITIONS RECOGNIZE THE
SCOPE OF THE STATE TAXING POWER WE HAVE OUTLINED.  303 U.S. 77, 80,
82.  IN THE PRECISE CIRCUMSTANCES PRESENTED BY THE RECORD IT WAS FOUND
THAT THE TAX NEITHER IN ITS MEASURE NOR IN ITS INCIDENCE WAS RELATED TO
CALIFORNIA TRANSACTIONS.  HERE, ON THE CONTRARY, THE INCIDENCE OF THE
TAX AS WELL AS ITS MEASURE IS TIED TO THE EARNINGS WHICH THE STATE OF
WISCONSIN HAS MADE POSSIBLE, INSOFAR AS GOVERNMENT IS THE PREREQUISITE
FOR THE FRUITS OF CIVILIZATION FOR WHICH, AS MR. JUSTICE HOLMES WAS
FOND OF SAYING, WE PAY TAXES.  SEE, FOR INSTANCE, HIS DISSENT IN
COMPANIA DE TABACOS V. COLLECTOR, SUPRA, P. 100. 

BECAUSE THE WISCONSIN SUPREME COURT FOUND THE STATUTE TO BE INVALID
AS TO FOREIGN CORPORATIONS IN THE POSITION OF THE RESPONDENT IT HAD NO
OCCASION TO PASS ON CERTAIN CLAIMS RELATING TO THE APPLICATION OF THE
STATUTE TO THE SPECIFIC DIVIDENDS HERE INVOLVED.  WE THEREFORE REMAND
THE CASE FOR THE DETERMINATION OF SUCH QUESTIONS AS ARE OPEN IN THE
LIGHT OF THIS OPINION.  REVERSED. 

FN1  SECTION 3, CHAPTER 505, LAWS OF WISCONSIN, 1935, AS AMENDED BY
CHAPTER 552, LAWS OF WISCONSIN, 1935: 

"SECTION 3.  PRIVILEGE DIVIDEND TAX.  (1)  FOR THE PRIVILEGE OF
DECLARING AND RECEIVING DIVIDENDS, OUT OF INCOME DERIVED FROM PROPERTY
LOCATED AND BUSINESS TRANSACTED IN THIS STATE, THERE IS HEREBY IMPOSED
A TAX EQUAL TO TWO AND ONE-HALF PER CENTUM OF THE AMOUNT OF SUCH
DIVIDENDS DECLARED AND PAID BY ALL CORPORATIONS (FOREIGN AND LOCAL)
AFTER THE PASSAGE AND PUBLICATION OF THIS ACT AND PRIOR TO JULY 1,
1937.  SUCH TAX SHALL BE DEDUCTED AND WITHHELD FROM SUCH DIVIDENDS
PAYABLE TO RESIDENTS AND NON-RESIDENTS BY THE PAYOR CORPORATION. 

"(2)  EVERY CORPORATION REQUIRED TO DEDUCT AND WITHHOLD ANY TAX UNDER
THIS SECTION SHALL, ON OR BEFORE THE LAST DAY OF THE MONTH FOLLOWING
THE PAYMENT OF THE DIVIDEND, MAKE RETURN THEREOF AND PAY THE TAX TO THE
TAX COMMISSION, REPORTING SUCH TAX ON THE FORMS TO BE PRESCRIBED BY THE
TAX COMMISSION. 

"(3)  EVERY SUCH CORPORATION HEREBY MADE LIABLE FOR SUCH TAX, SHALL
DEDUCT THE AMOUNT OF SUCH TAX FROM THE DIVIDENDS SO DECLARED. 

"(4)  IN THE CASE OF CORPORATIONS DOING BUSINESS WITHIN AND WITHOUT
THE STATE OF WISCONSIN, SUCH TAX SHALL APPLY ONLY TO DIVIDENDS DECLARED
AND PAID OUT OF INCOME DERIVED FROM BUSINESS TRANSACTED AND PROPERTY
LOCATED WITHIN THE STATE OF WISCONSIN.  THE AMOUNT OF INCOME
ATTRIBUTABLE TO THIS STATE SHALL BE COMPUTED IN ACCORDANCE WITH THE
PROVISIONS OF CHAPTER 71.  IN THE ABSENCE OF PROOF TO THE CONTRARY,
SUCH DIVIDENDS SHALL BE PRESUMED TO HAVE BEEN PAID OUT OF EARNINGS OF
SUCH CORPORATION ATTRIBUTABLE TO WISCONSIN UNDER THE PROVISIONS OF
CHAPTER 71, FOR THE YEAR IMMEDIATELY PRECEDING THE PAYMENT OF SUCH
DIVIDEND.  IF A CORPORATION HAD A LOSS FOR THE YEAR PRIOR TO THE
PAYMENT OF THE DIVIDEND, THE TAX COMMISSION SHALL UPON APPLICATION,
DETERMINE THE PORTION OF SUCH DIVIDEND PAID OUT OF CORPORATE SURPLUS
AND UNDIVIDED PROFITS DERIVED FROM BUSINESS TRANSACTED AND PROPERTY
LOCATED WITHIN THE STATE. 

"(5)  DIVIDENDS PAID BY A SUBSIDIARY CORPORATION TO ITS PARENT SHALL
NOT BE SUBJECT TO THE TAX HEREIN IMPOSED PROVIDED THAT THE SUBSIDIARY
AND ITS PARENT REPORT THEIR INCOME FOR TAXATION UNDER THE PROVISIONS OF
CHAPTER 71 ON A CONSOLIDATED INCOME RETURN BASIS, OR BOTH CORPORATIONS
REPORT SEPARATELY. 

"(6)  THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO DIVIDENDS
DECLARED AND PAID BY A WISCONSIN CORPORATION OUT OF ITS INCOME WHICH IT
HAS REPORTED FOR TAXATION UNDER THE PROVISIONS OF CHAPTER 71, TO THE
EXTENT THAT THE BUSINESS OF SUCH CORPORATION CONSISTS IN THE RECEIPTS
OF DIVIDENDS FROM WHICH A PRIVILEGE DIVIDEND TAX HAS BEEN DEDUCTED AND
WITHHELD AND THE DISTRIBUTION THEREOF TO ITS STOCKHOLDERS. 

"(7)  FOR THE PURPOSES OF THIS SECTION DIVIDENDS SHALL BE DEFINED AS
IN SECTION 71.02, EXCEPT THAT THE TAX HEREIN IMPOSED SHALL NOT APPLY TO
STOCK DIVIDEND OR LIQUIDATING DIVIDENDS. 

"(8)  THE TAX HEREBY LEVIED, IF NOT PAID WITHIN THE TIME HEREIN
PROVIDED, SHALL BECOME DELINQUENT AND WHEN DELINQUENT SHALL BE SUBJECT
TO A PENALTY OF TWO PER CENT ON THE AMOUNT OF THE TAX AND INTEREST AT
THE RATE OF ONE-HALF PER CENT PER MONTH UNTIL PAID. 

"(9)  THE TAX HEREBY IMPOSED SHALL, WHEN COLLECTED BY THE TAX
COMMISSION, BE PAID BY IT INTO THE STATE TREASURY." 

MR. JUSTICE ROBERTS. 

I ASSUME THAT THE PRINCIPLE STILL HOLDS GOOD THAT A STATE, A MEMBER
OF THE SISTERHOOD OF STATES IN THE REPUBLIC, CANNOT EXTEND HER
SOVEREIGNTY BY LEGISLATION SO AS TO PROHIBIT, TO REGULATE, OR TO TAX
PROPERTY OR TRANSACTIONS OF CITIZENS OF OTHER SOVEREIGN STATES LYING
OUTSIDE HER BOUNDARIES AND REGULATED BY THE LAW OF THE STATE OF
DOMICILE OR RESIDENCE.  I ASSUME ALSO THAT, WHERE A STATE HAS, BY LAW,
FIXED THE CONDITIONS UPON WHICH A CORPORATE CITIZEN OF ANOTHER STATE
MAY ENTER TO TRANSACT BUSINESS, SHE MAY NOT THEREAFTER EXTEND HER
SOVEREIGNTY TO MATTERS NOT WITHIN HER COMPETENCE, IN THE GUISE OF
ANNEXING OTHER AND FURTHER CONDITIONS OR BURDENS UPON THE TRANSACTION
OF THE CORPORATION'S BUSINESS WITHIN HER BORDERS.  THOSE ACTIVITIES
WHICH HAVE A REAL AND SUBSTANTIAL RELATION TO THE BUSINESS TRANSACTED
BY THE CITIZEN OF ANOTHER STATE WITHIN HER CONFINES ARE, OF COURSE,
SUBJECT TO REGULATION AND TO TAXATION.  IT WOULD BE MERE AFFECTATION TO
CITE THE ADJUDICATIONS OF THIS COURT WHICH ARE FOUNDED UPON THESE
PROPOSITIONS.  I HAVE THOUGHT THAT THESE PRINCIPLES WERE OF THE VERY
WARP AND WOOF OF THE CONSTITUTIONAL SYSTEM WHICH BINDS THE STATES
TOGETHER IN A FEDERAL UNION.  ATTEMPTED TRANSGRESSIONS OF THESE LIMITS
OF STATE SOVEREIGNTY HAVE TIME AND AGAIN RUN AFOUL OF THE FOURTEENTH
AMENDMENT. 

THE RESPONDENT ADMITTEDLY RECEIVES INCOME IN WISCONSIN.  NO ONE
QUESTIONS THE POWER OF WISCONSIN TO LAY A TAX UPON THE RECEIPT OF THAT
INCOME.  IT HAS DONE SO.  IT IS SAID THAT THE CHALLENGED EXACTION IS
MERELY AN ADDITIONAL INCOME TAX,  - THIS, NOTWITHSTANDING THAT THE TAX
IS NOT CALLED AN INCOME TAX, HAS BEEN HELD BY THE HIGHEST COURT OF
WISCONSIN NOT TO BE AN INCOME TAX BUT AN EXCISE UPON A PRIVILEGE,  - IN
THE VIEW THAT IN TESTING THE CONSTITUTIONALITY OF AN EXACTION THIS
COURT EXAMINES FOR ITSELF THE NATURE AND INCIDENCE OF THE TAX AND
DISREGARDS MERE NAMES AND DESCRIPTIVE EPITHETS.  WITH THAT PRINCIPLE I
HAVE NO QUARREL, BUT I THINK THE OPINION OF THE COURT DEMONSTRATES THAT
THE TAX HERE IN QUESTION IS, AND CAN BE, SUSTAINED ONLY BY A DISREGARD
OF IT. LET ME ILLUSTRATE MY MEANING.  ASSUMING THAT, BY STATUTE, AN AD
VALOREM TAX ON PROPERTY IS PROHIBITED AND AN INCOME TAX PERMITTED.  THE
TERMS USED IN THE STATUTE NECESSARILY HAVE A CONVENTIONAL CONNOTATION. 
ONE CANNOT INTELLIGENTLY DISCUSS THINGS OR ACTIONS EXCEPT BY USING THE
NAMES COMMONLY EMPLOYED TO DESCRIBE THEM.  CONCEPTS OF AD VALOREM
TAXATION ON PROPERTY AND TAXATION OF INCOME ARE CLEAR AND EASILY
DISCRIMINABLE.  WHAT WOULD BE SAID OF A DECISION CONSTRUING SUCH A
STATUTORY PROVISION SO AS TO HOLD A TAX OF SO MANY CENTS ON THE DOLLAR
UPON PROPERTY AN INCOME TAX BECAUSE, FORSOOTH, ALL THE PROPERTY
ASSESSED HAS BEEN RECEIVED AS THE FRUITS OF LABOR, OF INDUSTRY, OR OF
CAPITAL, UPON THE THEORY THAT, AS THE PROPERTY HAD COME INTO EXISTENCE
AT SOME REMOTE DATE AS INCOME, THE TAX WAS AN INCOME TAX?  I THINK THAT
IS PRECISELY WHAT HAS BEEN DONE IN THIS CASE. 

THE FACTS ARE NOT IN DISPUTE.  THE RESPONDENT RECEIVES INCOME IN MANY
STATES.  THAT INCOME IS FORWARDED TO ITS HOME OFFICE AFTER BEARING
WHATEVER TAX IS LAID UPON ITS RECEIPT IN THE STATE OF RECEIPT. 
THEREUPON THE FUNDS SO FORWARDED BECOME A PORTION OF THE GENERAL MASS
OF THE RESPONDENT'S PROPERTY, HELD AND ADMINISTERED AT ITS GENERAL
OFFICE.  THE FUNDS MAY BE EMPLOYED IN THE EXTENSION OF ITS BUSINESS;
THEY MAY BE HELD AS INSURANCE AGAINST FUTURE BUSINESS LOSSES OR THEY
MAY BE DISTRIBUTED TO ITS STOCKHOLDERS IN DIVIDENDS.  THEIR MANAGEMENT
AND THEIR DISBURSEMENT HAVE NO RELATION TO THE ORIGINAL RECEIPT OF
INCOME SAVE ONLY THE FACT THAT, LIKE MOST PROPERTY, THEY ARE BUILT UP
AS THE FRUITS OF INCOME.  THEIR USE AND THEIR DISBURSEMENT DOES NOT
DEPEND ON ANY LAW OF WISCONSIN AND CANNOT BE CONTROLLED BY ANY SUCH
LAW.  THE ACT OF DISBURSING THEM, WHETHER IN PAYMENT OF CORPORATE
OBLIGATIONS OR AS DIVIDENDS, IS ONE WHOLLY BEYOND THE REACH OF
WISCONSIN'S SOVEREIGN POWER, ONE WHICH IT CANNOT EFFECTIVELY COMMAND,
OR PROHIBIT OR CONDITION.  THAT DISTRIBUTION CANNOT BE THE SUBJECT OF
AN EXCISE TAX BY THE STATE OF WISCONSIN.  SO MUCH THE STATE ADMITS. 

UNDER THE CHALLENGED STATUTE, A PRESUMPTION IS CREATED WHICH IS SHOWN
IN THE CASE OF THE ASSESSMENT AGAINST THE RESPONDENT FOR THE YEARS IN
QUESTION TO BE CONTRARY TO THE FACT,  - NAMELY, THAT AN ARBITRARILY
ASSUMED PROPORTION OF THE DIVIDEND IS PAID OUT OF THE RESPONDENT'S
EARNINGS IN WISCONSIN FOR THE YEAR IMMEDIATELY PRECEDING THE PAYMENT OF
SUCH DIVIDEND.  BY THE VERY TERMS OF THE ACT, THE TAX IS LAID NOT ON
THE CORPORATION BUT ON THE STOCKHOLDER RECEIVING THE DIVIDEND AND, BY
CONFESSION, THOUSANDS OF SUCH STOCKHOLDERS ARE NOT RESIDENTS OF
WISCONSIN.  THE CORPORATION IS THE MERE COLLECTOR OF THE TAX AND THE
PENALTY FOR FAILURE TO COLLECT IT IS THAT THE CORPORATION MUST PAY IT.
IF THE EXACTION IS AN INCOME TAX IN ANY SENSE IT IS SUCH UPON THE
STOCKHOLDER AND IS OBVIOUSLY BAD.  IT CANNOT, EXCEPT BY A PERVERSION OF
THE TERM AND THE AFFIXING OF AN ARBITRARY LABEL, BE DENOMINATED A TAX
UPON THE INCOME OF THE RESPONDENT. 

THE EXPLANATION OF THE REASON AND PURPOSE FOR IMPOSING THE TAX,
DISCLOSED IN THE OPINION OF THE COURT, SERVES TO CONDEMN IT.  IF
WISCONSIN FOUND THAT DIVIDEND INCOME OF STOCKHOLDERS OF DOMESTIC
CORPORATIONS ESCAPED TAXATION, AND SHOULD BEAR IT, AN EFFECTIVE WAY TO
REACH THE DIVIDEND RECEIPTS OF THE STOCKHOLDERS OF SUCH CORPORATIONS
WAS TO PLACE A TAX UPON THE RECEIPT OF DIVIDENDS BY THEM.  BUT SUCH A
LEVY UPON THE STOCKHOLDERS OF A FOREIGN CORPORATION, NOT RESIDENT
WITHIN WISCONSIN, OBVIOUSLY WAS IMPOSSIBLE ALTHOUGH THAT IS EXACTLY
WHAT WAS ATTEMPTED BY THE STATUTE IN QUESTION.  WE ARE NOW TOLD THAT
THIS IS NOT A FAIR EXPOSITION OF THE LAW BUT THAT, ON THE CONTRARY, AND
IN THE TEETH OF THE KNOWN FACTS, WHAT WISCONSIN DID WAS TO LAY A
SUPPLEMENTARY INCOME TAX UPON FOREIGN CORPORATIONS.  THIS IS SIMPLY TO
TAKE THE NAME OF A WELL UNDERSTOOD CONCEPT AND ASSIGN THAT NAME AS A
LABEL TO SOMETHING WHICH IN ORDINARY UNDERSTANDING NEVER FELL WITHIN
SUCH CONCEPT.  BY THIS PROCESS ANY EXACTION CAN BE TORTURED INTO
SOMETHING ELSE AND THEN JUSTIFIED UNDER AN ASSUMED NAME.    THE
RESPONDENT OWNS PROPERTY IN VARIOUS STATES OF THE UNION.  IT IS
REASONABLE TO SUPPOSE THAT MUCH OF THAT PROPERTY HAS BEEN PURCHASED OUT
OF CORPORATE SURPLUS, THAT IS, OUT OF PAST EARNINGS.  AN AD VALOREM TAX
BY WISCONSIN ON PROPERTY SO ACQUIRED COULD BE QUITE AS EASILY JUSTIFIED
UNDER THE LABEL OF AN INCOME TAX BECAUSE THE PROPERTY REPRESENTED
INCOME ONCE RECEIVED, AS THE PRESENT TAX, ON THE DECLARATION AND
RECEIPT OF DIVIDENDS OUT OF EARNED SURPLUS. 

UPON THE FACTS, THE TAX IS LEVIED ON WHAT LIES OUTSIDE THE
SOVEREIGNTY OF WISCONSIN.  ITS ATTEMPTED COLLECTION IS A VIOLATION OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND SHOULD BE
STRICKEN DOWN. 

THE SUPREME COURT OF WISCONSIN COULD NOT HAVE DECIDED OTHERWISE IN
THE LIGHT OF A RECENT EXPRESSION OF THIS COURT ON THE SUBJECT.  IN
REACHING ITS DECISION IT PROFESSEDLY FOLLOWED AND APPLIED CONNECTICUT
GENERAL LIFE INSURANCE CO. V. JOHNSON, 303 U.S. 77.  THERE A
CONNECTICUT LIFE INSURANCE COMPANY DID BUSINESS IN CALIFORNIA UNDER
LICENSE FROM THAT STATE.  IT ENTERED INTO CONTRACTS WITH OTHER
INSURANCE COMPANIES, ALSO LICENSED TO DO BUSINESS IN CALIFORNIA,
REINSURING THEM AGAINST LOSS ON POLICIES WRITTEN BY THEM IN CALIFORNIA
ON THE LIVES OF CALIFORNIA RESIDENTS.  THE CONTRACTS WERE MADE IN
CONNECTICUT, PREMIUMS WERE PAID THERE, AND THE LOSSES, IF ANY, WERE
THERE PAYABLE.  CALIFORNIA IMPOSED A TAX UPON THE PRIVILEGE OF THE
COMPANY TO DO BUSINESS WITHIN CALIFORNIA.  THE TAX WAS MEASURED BY THE
GROSS PREMIUMS RECEIVED.  CALIFORNIA OFFICIALS ATTEMPTED TO COLLECT THE
TAX ON THE PREMIUMS RECEIVED BY THE CONNECTICUT CORPORATION UNDER THE
REINSURANCE CONTRACTS IN QUESTION.  THE SUPREME COURT OF CALIFORNIA
SUSTAINED THE TAX.  IN THAT CASE, AS IN THIS, THE HIGHEST STATE COURT
DESCRIBED AND DEFINED THE TAX.  THERE THE TAX WAS DENOMINATED "A
FRANCHISE TAX ENACTED FOR THE PRIVILEGE OF DOING BUSINESS IN THE
STATE."  HERE, THE SUPREME COURT OF WISCONSIN HAS DENOMINATED THE
EXACTION AS A PRIVILEGE OR EXCISE TAX IMPOSED UPON THE TRANSFER OF
PROPERTY.  BY THE VERY PROCESS THE COURT NOW PROFESSES TO EMPLOY OF
DISREGARDING THE NAME GIVEN TO THE TAX BY THE STATE COURT, THIS COURT,
IN THE CONNECTICUT GENERAL LIFE INSURANCE CO. CASE, REACHED THE
CONCLUSION THAT THE STATE OF CALIFORNIA COULD NOT IMPOSE THE TAX ON THE
ACTIVITIES OF THE CONNECTICUT COMPANY WHICH WERE NOT WITHIN ITS
JURISDICTION.  CITING MANY DECISIONS OF THIS COURT, IT WAS THERE SAID: 

"BUT THE LIMITS OF THE STATE'S LEGISLATIVE JURISDICTION TO TAX,
PRESCRIBED BY THE FOURTEENTH AMENDMENT, ARE TO BE ASCERTAINED BY
REFERENCE TO THE INCIDENCE OF THE TAX UPON ITS OBJECTS RATHER THAN THE
ULTIMATE THRUST OF THE ECONOMIC BENEFITS AND BURDENS OF TRANSACTIONS
WITHIN THE STATE." 

THE VERY ARGUMENT NOW INVOKED IN SUPPORT OF THE PRESENT DECISION WAS
REPUDIATED BY THE COURT IN THE CONNECTICUT CASE IN THESE WORDS: 

"IT IS SAID THAT THE STATE COULD HAVE LAWFULLY ACCOMPLISHED ITS
PURPOSE IF THE STATUTE HAD FURTHER STIPULATED THAT THE DEDUCTION SHOULD
BE ALLOWED ONLY IN THOSE CASES WHERE THE REINSURANCE IS EFFECTED IN THE
STATE OR THE REINSURANCE PREMIUMS PAID THERE.  BUT AS THE STATE HAS
PLACED NO SUCH LIMITATION ON THE ALLOWANCE OF DEDUCTIONS, THE END
SOUGHT CAN BE ATTAINED ONLY IF THE RECEIPT BY APPELLANT OF THE
REINSURANCE PREMIUMS PAID IN CONNECTICUT UPON THE CONNECTICUT POLICIES
IS WITHIN THE REACH OF CALIFORNIA'S TAXING POWER.  APPELLEE ARGUES THAT
IT IS, BECAUSE THE REINSURANCE TRANSACTIONS ARE SO RELATED TO BUSINESS
CARRIED ON BY APPELLANT IN CALIFORNIA AS TO BE A PART OF IT AND
PROPERLY INCLUDED IN THE MEASURE OF THE TAX; AND BECAUSE, IN ANY CASE,
NO INJUSTICE IS DONE TO APPELLANT SINCE THE EFFECT OF THE STATUTE AS
CONSTRUED IS TO REDISTRIBUTE THE TAX, WHICH THE STATE MIGHT HAVE
EXACTED FROM THE ORIGINAL INSURERS BUT DID NOT, BY ASSESSING IT UPON
APPELLANT TO THE EXTENT TO WHICH IT HAS RECEIVED THE BENEFIT OF THE
ALLOWED DEDUCTIONS." 

IN DESCRIBING THE INCIDENCE OF THE VOID TAX THIS COURT SAID, AS IT
MIGHT WITH EQUAL ACCURACY BE SAID OF THE INSTANT TAX: 

"APART FROM THE FACTS THAT APPELLANT WAS PRIVILEGED TO DO BUSINESS IN
CALIFORNIA, AND THAT THE RISKS REINSURED WERE ORIGINALLY INSURED
AGAINST IN THAT STATE BY COMPANIES ALSO AUTHORIZED TO DO BUSINESS
THERE, CALIFORNIA HAD NO RELATIONSHIP TO APPELLANT OR TO THE
REINSURANCE CONTRACTS.  NO ACT IN THE COURSE OF THEIR FORMATION,
PERFORMANCE OR DISCHARGE, TOOK PLACE THERE.  THE PERFORMANCE OF THOSE
ACTS WAS NOT DEPENDENT UPON ANY PRIVILEGE OR AUTHORITY GRANTED BY IT,
AND CALIFORNIA LAWS AFFORDED TO THEM NO PROTECTION." 

AND FINALLY THE COURT CONCLUDED: 

"ALL THAT APPELLANT DID IN EFFECTING THE REINSURANCE WAS DONE WITHOUT
THE STATE AND FOR ITS TRANSACTION NO PRIVILEGE OR LICENSE BY CALIFORNIA
WAS NEEDFUL.  THE TAX CANNOT BE SUSTAINED EITHER AS LAID ON PROPERTY,
BUSINESS DONE, OR TRANSACTIONS CARRIED ON WITHIN THE STATE, OR AS A TAX
ON A PRIVILEGE GRANTED BY THE STATE." 

I THINK THAT THE JUDGMENT BELOW SHOULD BE AFFIRMED. 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS AND MR. JUSTICE REED CONCUR
IN THIS OPINION. 
..END :

















WISCONSIN V. MINNESOTA MINING CO., 311 U.S. 452 


NO. 48.  ARGUED NOVEMBER 20, 1940.  - DECIDED DECEMBER 16, 1940.  - 233
WIS. 306 - 289 N.W. 686, REVERSED. 


1.  DECIDED, IN PART, UPON THE AUTHORITY OF WISCONSIN ET AL. V. J.C.
PENNEY CO., ANTE, P. 435.  P. 453. 

2.  A STATE TAX ON EARNINGS OF A FOREIGN CORPORATION ATTRIBUTABLE TO
ACTIVITIES IN THE TAXING STATE, HELD, CONSISTENT WITH THE COMMERCE
CLAUSE, ALTHOUGH THE LIABILITY TO PAY IT WAS MADE CONTINGENT UPON
HAPPENINGS OUTSIDE OF THE STATE.  P. 453. 

WISCONSIN ET AL. V. MINNESOTA MINING & MANUFACTURING CO. 

CERTIORARI TO THE SUPREME COURT OF WISCONSIN. 

CERTIORARI, 310 U.S. 619, TO REVIEW THE REVERSAL OF A JUDGMENT WHICH
CONFIRMED AN ORDER OF THE WISCONSIN TAX COMMISSION ASSESSING A TAX. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE, INVOLVING ANOTHER APPLICATION OF THE WISCONSIN PRIVILEGE
DIVIDEND TAX CONSIDERED IN WISCONSIN V. J.C. PENNEY CO., ANTE, P. 435,
IS GOVERNED BY THAT DECISION EXCEPT FOR A CONTENTION MADE BY THIS
RESPONDENT BUT NOT PRESSED HERE IN PENNEY'S CASE. 

THE COMMERCE CLAUSE IS INVOKED.  BUT IT IS TOO LATE IN THE DAY TO
FIND OFFENSE TO THAT CLAUSE BECAUSE A STATE TAX IS IMPOSED ON CORPORATE
NET INCOME OF AN INTERSTATE ENTERPRISE WHICH IS ATTRIBUTABLE TO
EARNINGS WITHIN THE TAXING STATE, MATSON NAVIGATION CO. V. STATE BOARD,
297 U.S. 441.  THAT LIABILITY FOR SUCH A TAX IS MADE CONTINGENT UPON
LATER HAPPENINGS, AS IN THE CIRCUMSTANCES OF THE PRESENT CASE, MAKES NO
DIFFERENCE.  REVERSED. 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS, MR. JUSTICE ROBERTS, AND
MR. JUSTICE REED DISSENT FOR THE REASONS STATED IN THE DISSENTING
OPINION IN WISCONSIN V. J.C. PENNEY CO., ANTE, P. 446. 
..END :













BACARDI CORP. V. DOMENECH, 311 U.S. 150 


NO. 21.  ARGUED OCTOBER 22, 1940.  - DECIDED DECEMBER 9, 1940.  - 109
F.2D 57, REVERSED IN PART - AFFIRMED IN PART. 


1.  THE GENERAL INTER-AMERICAN CONVENTION FOR TRADE-MARK AND
COMMERCIAL PROTECTION SIGNED AT WASHINGTON ON FEBRUARY 20, 1929, AND
RATIFIED BY THE UNITED STATES, BY CUBA AND BY OTHER AMERICAN COUNTRIES,
IS A PART OF OUR LAW; AND NO SPECIAL LEGISLATION IN THE UNITED STATES
WAS NECESSARY TO MAKE IT EFFECTIVE THERE.  P. 161. 

2.  THE TREATY BINDS THE TERRITORY OF PUERTO RICO, AND CAN NOT BE
OVERRIDDEN BY THE PUERTO RICAN LEGISLATURE.  P. 162. 

3.  THE TREATY SHOULD BE CONSTRUED LIBERALLY TO GIVE EFFECT TO ITS
PURPOSE.  WHERE A PROVISION FAIRLY ADMITS OF TWO CONSTRUCTIONS, ONE
RESTRICTING, THE OTHER ENLARGING, RIGHTS CLAIMED UNDER IT, THE MORE
LIBERAL CONSTRUCTION IS TO BE PREFERRED.  P. 163. 

4.  WHEN A FOREIGN MARK IS ENTITLED, BY VIRTUE OF THE TREATY, TO
REGISTRATION IN A RATIFYING STATE, AND IS DULY REGISTERED THERE, A
SUBSTANTIVE RIGHT TO ITS PROTECTION IN THAT STATE ATTACHES.  P. 163. 

5.  A RATIFYING STATE CAN NOT ESCAPE THE OBLIGATION OF PROTECTING THE
OWNER IN HIS USE OF A FOREIGN TRADE-MARK, DULY REGISTERED UNDER THE
TREATY, BY REFUSING THAT PROTECTION TO ITS OWN NATIONALS.  P. 164. 

IT IS THE PLAIN PURPOSE OF THE TREATY TO PREVENT A RATIFYING STATE
FROM DENYING PROTECTION TO THE FOREIGN MARK BECAUSE OF ITS ORIGIN OR
PREVIOUS REGISTRATION IN THE FOREIGN COUNTRY.  PROTECTION AGAINST
PIRACY NECESSARILY PRESUPPOSES THE RIGHT TO USE THE MARKS THUS
PROTECTED. 

6.  THE TREATY RECOGNIZES THE RIGHT TO TRANSFER SEPARATELY FOR EACH
COUNTRY THE RIGHT TO USE AND EXPLOIT TRADE-MARKS REGISTERED UNDER IT
WHEN THE TRANSFER IS EXECUTED IN ACCORDANCE WITH THE LAW OF THE PLACE
WHERE IT IS MADE AND IS DULY RECORDED.  P. 165. 

7.  A STATUTE OF PUERTO RICO PROHIBITING THE USE ON DISTILLED SPIRITS
MANUFACTURED IN PUERTO RICO OF TRADE-MARKS WHICH HAD PREVIOUSLY BEEN
USED ANYWHERE OUTSIDE OF PUERTO RICO, EXCEPTING ANY THAT HAD BEEN USED
ON SPIRITS MANUFACTURED IN PUERTO RICO ON OR BEFORE A DATE SPECIFIED OR
THAT HAD BEEN USED EXCLUSIVELY IN CONTINENTAL UNITED STATES PRIOR TO
THAT DATE, HELD DISCRIMINATORY, IN VIOLATION OF THE ABOVE-MENTIONED
TREATY, WHEN APPLIED TO CUBAN TRADE-MARKS ON RUM, DULY REGISTERED BUT
NOT WITHIN THE STATUTORY EXCEPTIONS, AND WHICH A CORPORATION, UNDER
LICENSE FROM THE CUBAN OWNER, SOUGHT TO USE IN CONNECTION WITH THE
MANUFACTURE AND SALE OF RUM IN PUERTO RICO.  PP. 154, 167. 

8.  THE FACT THAT A CORPORATION APPLIED, UNDER PUERTO RICAN LAWS, FOR
A PERMIT TO ENGAGE IN THE BUSINESS OF RECTIFYING DISTILLED SPIRITS IN
PUERTO RICO, DID NOT ESTOP IT FROM QUESTIONING THE VALIDITY OF LATER
LEGISLATION DISCRIMINATING AGAINST ITS FOREIGN TRADE-MARKS IN VIOLATION
OF THE TREATY.  P. 166. 

9.  A REGULATION OF THE PUERTO RICAN LEGISLATURE PROVIDING THAT
DISTILLED SPIRITS (WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE) MAY BE
SHIPPED OR EXPORTED FROM THE ISLAND ONLY IN CONTAINERS HOLDING NOT MORE
THAN ONE GALLON, IS WITHIN THE LOCAL POLICE POWER AND NOT INCONSISTENT
WITH THE FEDERAL ALCOHOL ADMINISTRATION ACT.  P. 167. 

BACARDI CORPORATION OF AMERICA V. DOMENECH, TREASURER OF PUERTO RICO,
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 309 U.S. 652, TO REVIEW A DECREE WHICH REVERSED A DECREE
PERMANENTLY ENJOINING THE TREASURER OF PUERTO RICO FROM ENFORCING
AGAINST THE PLAINTIFF CORPORATION LEGISLATION REGULATING THE USE OF
TRADE-MARKS ON DISTILLED SPIRITS AND FORBIDDING EXPORT OF SPIRITS IN
BULK. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE VALIDITY OF LEGISLATION OF
PUERTO RICO PROHIBITING THE USE OF TRADE MARKS, BRANDS, OR TRADE NAMES,
ON DISTILLED SPIRITS MANUFACTURED IN PUERTO RICO IF THE MARKS, BRANDS,
OR NAMES HAD PREVIOUSLY BEEN USED ANYWHERE OUTSIDE PUERTO RICO, UNLESS
THEY HAD BEEN USED ON SPIRITS MANUFACTURED IN PUERTO RICO ON OR BEFORE
FEBRUARY 1, 1936, OR IN THE CASE OF TRADE MARKS THEY HAD BEEN USED
EXCLUSIVELY IN CONTINENTAL UNITED STATES PRIOR TO THAT DATE. 

PETITIONER, BACARDI CORPORATION OF AMERICA, BROUGHT THIS SUIT IN THE
DISTRICT COURT OF THE UNITED STATES FOR PUERTO RICO AGAINST THE
TREASURER OF PUERTO RICO TO HAVE THIS LEGISLATION DECLARED INVALID AND
ITS ENFORCEMENT ENJOINED.  THE COMPLAINT CHARGED INVALIDITY UNDER THE
FIFTH AMENDMENT AND THE COMMERCE CLAUSE OF THE CONSTITUTION OF THE
UNITED STATES, THE ORGANIC ACT OF PUERTO RICO, THE FEDERAL ALCOHOL
ADMINISTRATION ACT, AND THE GENERAL INTER-AMERICAN TRADE-MARK
CONVENTION OF 1929.  THE DESTILERIA SERRALLES, INC., A PUERTO RICAN
CORPORATION, WAS PERMITTED TO INTERVENE AS A DEFENDANT. 

THE DISTRICT COURT HELD THE LEGISLATION INVALID AND ISSUED A
PERMANENT INJUNCTION.  THE CIRCUIT COURT OF APPEALS REVERSED THE DECREE
AND DIRECTED THE DISMISSAL OF THE COMPLAINT.  109 F.2D 57.  IN VIEW OF
THE IMPORTANCE OF THE QUESTIONS, WE GRANTED CERTIORARI.  309 U.S. 652. 

THE FINDINGS OF THE DISTRICT COURT, WHICH WERE NOT DISTURBED BY THE
RULINGS OF THE CIRCUIT COURT OF APPEALS, SHOW THE FOLLOWING: 

PETITIONER, BACARDI CORPORATION OF AMERICA, IS A PENNSYLVANIA
CORPORATION AUTHORIZED TO MANUFACTURE DISTILLED SPIRITS.  BY AGREEMENT,
PETITIONER BECAME ENTITLED TO MANUFACTURE AND SELL RUM IN PUERTO RICO
UNDER THE TRADE MARKS AND LABELS OF COMPANIA RON BACARDI, S.A., A CUBAN
CORPORATION.  FOR MORE THAN TWENTY YEARS, SAVE FOR THE PERIOD DURING
NATIONAL PROHIBITION, THE CUBAN CORPORATION AND ITS PREDECESSORS HAD
SOLD RUM IN PUERTO RICO AND THROUGHOUT THE UNITED STATES UNDER TRADE
MARKS WHICH INCLUDED THE WORD "BACARDI," "BACARDI Y CIA," THE
REPRESENTATION OF A BAT IN A CIRCULAR FRAME, AND CERTAIN DISTINCTIVE
LABELS.  THESE TRADE MARKS WERE DULY REGISTERED IN THE UNITED STATES
PATENT OFFICE AND IN THE OFFICE OF THE EXECUTIVE SECRETARY OF PUERTO
RICO PRIOR TO THE LEGISLATION HERE IN QUESTION. 

BACARDI RUM HAS ALWAYS BEEN MADE ACCORDING TO DEFINITE SECRET
PROCESSES, HAS BEEN EXTENSIVELY ADVERTISED AND ENJOYS AN EXCELLENT
REPUTATION.  UNDER PETITIONER'S AGREEMENT WITH THE CUBAN CORPORATION,
ALL RUM DESIGNATED BY THE DESCRIBED TRADE MARKS AND LABELS WAS TO BE
MANUFACTURED UNDER THE SUPERVISION OF REPRESENTATIVES OF THE CUBAN
CORPORATION AND TO BE THE SAME KIND AND QUALITY AS THE RUM THAT THE
LATTER MANUFACTURED AND SOLD. 

IN MARCH, 1936, PETITIONER ARRANGED FOR THE INSTALLATION OF A PLANT
IN PUERTO RICO.  SINCE MARCH 31, 1936, PETITIONER HAS BEEN DULY
LICENSED TO DO BUSINESS IN PUERTO RICO UNDER ITS LAWS RELATING TO
FOREIGN CORPORATIONS.  PETITIONER'S BASIC PERMITS FROM THE FEDERAL
ALCOHOL ADMINISTRATION WERE AMENDED SO AS TO ENABLE PETITIONER TO
OPERATE IN PUERTO RICO AND ITS LABELS WERE APPROVED.  PETITIONER RENTED
A BUILDING IN PUERTO RICO AND SPENT LARGE SUMS IN INSTALLING ITS
PLANT. 

ON MAY 15, 1936, THE LEGISLATURE OF PUERTO RICO PASSED ACT NO. 115
KNOWN AS THE "ALCOHOLIC BEVERAGE LAW" WHICH, AFTER PROVIDING FOR
PERMITS, PROHIBITED THE HOLDER OF A PERMIT FROM MANUFACTURING ANY
DISTILLED SPIRITS WHICH WERE "LOCALLY OR NATIONALLY KNOWN UNDER A
BRAND, TRADE NAME, OR TRADE-MARK PREVIOUSLY USED ON SIMILAR PRODUCTS
MANUFACTURED IN A FOREIGN COUNTRY, OR IN ANY OTHER PLACE OUTSIDE PUERTO
RICO," WITH A PROVISO EXCEPTING BRANDS, TRADE NAMES, OR TRADE MARKS
USED ON SPIRITS "MANUFACTURED IN PUERTO RICO ON FEBRUARY 1, 1936," AND
ALSO "ANY NEW BRAND, TRADE NAME, OR TRADE-MARK WHICH MAY IN THE FUTURE
BE USED IN PUERTO RICO."  FN1  THIS ACT WAS DECLARED TO BE OF AN
EXPERIMENTAL NATURE.  IT WAS REPEALED BY ACT NO. 6 OF JUNE 30, 1936,
WHICH CONTAINED A SIMILAR PROVISION AND ADDED A PROHIBITION AGAINST
EXPORTS IN BULK.  FN2  THAT ACT WAS TO BE IN FORCE UNTIL SEPTEMBER 30,
1937.  IT WAS, HOWEVER, CONVERTED INTO PERMANENT LEGISLATION BY THE
PROVISIONS OF ACT NO. 149 OF MAY 15, 1937, KNOWN AS THE "SPIRITS AND
ALCOHOLIC BEVERAGES ACT."  FN3 

DECLARING IT TO BE THE POLICY OF THE LEGISLATURE "TO PROTECT THE
RENASCENT LIQUOR INDUSTRY OF PUERTO RICO FROM ALL COMPETITION BY
FOREIGN CAPITAL,"  FN4  THE ACT OF 1937 PROVIDED IN SECS. 44 AND 44(B)
AS FOLLOWS: 

"SECTION 44.  - NO HOLDER OF A PERMIT GRANTED IN ACCORDANCE WITH THE
PROVISIONS OF THIS OR OF ANY OTHER ACT SHALL DISTILL, RECTIFY,
MANUFACTURE, BOTTLE, OR CAN ANY DISTILLED SPIRITS, RECTIFIED SPIRITS,
OR ALCOHOLIC BEVERAGES ON WHICH THERE APPEARS, WHETHER ON THE
CONTAINER, LABEL, STOPPER, OR ELSEWHERE, ANY TRADE MARK, BRAND, TRADE
NAME, COMMERCIAL NAME, CORPORATION NAME OR ANY OTHER DESIGNATION, IF
SAID TRADE MARK, BRAND, TRADE NAME, COMMERCIAL NAME, CORPORATION NAME,
OR ANY OTHER DESIGNATION, DESIGN, OR DRAWING HAS BEEN USED PREVIOUSLY,
IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, OR IN ANY OTHER MANNER,
ANYWHERE OUTSIDE THE ISLAND OF PUERTO RICO:  PROVIDED, THAT THIS
LIMITATION SHALL NOT APPLY TO THE DESIGNATIONS USED BY A DISTILLER,
RECTIFIER, MANUFACTURER, BOTTLER, OR CANNER OF DISTILLED SPIRITS
MANUFACTURED IN PUERTO RICO ON OR BEFORE FEBRUARY 1, 1936." 

"SECTION 44(B).  - DISTILLED SPIRITS, WITH THE EXCEPTION OF ETHYLIC
ALCOHOL, 180 DEGREE PROOF OR MORE, INDUSTRIAL ALCOHOL, ALCOHOL
DENATURED ACCORDING TO AUTHORIZED FORMULAS, AND DENATURED RUM FOR
INDUSTRIAL PURPOSES, MAY BE SHIPPED OR EXPORTED FROM PUERTO RICO TO
FOREIGN COUNTRIES, TO THE CONTINENTAL UNITED STATES, OR TO ANY OF ITS
TERRITORIES OR POSSESSIONS, OR IMPORTED INTO PUERTO RICO, ONLY IN
CONTAINERS HOLDING NOT MORE THAN ONE GALLON, AND EACH CONTAINER SHALL
BEAR THE CORRESPONDING LABEL CONTAINING THE INFORMATION PRESCRIBED BY
LAW AND BY THE REGULATIONS OF THE TREASURER; ...  "  FN5 

IT IS THESE SECTIONS WHICH PETITIONER ATTACKS. 

MAKE ITS LIMITATION APPLICABLE, IN REGARD TO TRADE MARKS ONLY, TO SUCH
"AS SHALL HAVE BEEN USED EXCLUSIVELY IN THE CONTINENTAL UNITED STATES"
PRIOR TO FEBRUARY 1, 1936.  FN6  PETITIONER ASSERTS THAT IN THE ABSENCE
OF THIS LAST PROVISION, THERE WOULD HAVE BEEN TWO DISTILLERS WHOSE
TRADE MARKS WOULD BE SUBJECT TO THE PROHIBITION OF SEC. 44, THAT IS,
PETITIONER AND ONE OTHER; AND THAT SEC. 7 PROTECTED THE OTHER
MANUFACTURER, LEAVING PETITIONER, WHOSE MARKS HAD BEEN USED IN FOREIGN
COUNTRIES AND NOT EXCLUSIVELY IN CONTINENTAL UNITED STATES, THE ONLY
CONCERN AFFECTED BY THE PROHIBITION.  THE DISTRICT COURT SAID THAT THE
ACT HAD THE APPEARANCE OF BEING FRAMED SO AS TO EXCLUDE ONLY THE
PLAINTIFF AND THAT IT WAS DIFFICULT TO CONCEIVE OF "A MORE GLARING
DISCRIMINATION."  IN THIS RELATION PETITIONER CITES THE CRITICAL
REFERENCE IN MCFARLAND V. AMERICAN SUGAR REFINING CO., 241 U.S. 79, 86,
TO A STATUTE WHICH "BRISTLES WITH SEVERITIES THAT TOUCH THE PLAINTIFF
ALONE."  THE CIRCUIT COURT OF APPEALS WHILE RECOGNIZING THE IMMEDIATE
BEARING OF THE PROVISION AS THUS CHALLENGED SUSTAINED IT "AS APPLYING
TO ALL WHO MIGHT LATER ENGAGE IN THE BUSINESS." 

THAT CONSTRUCTION, HOWEVER, DOES NOT TOUCH THE ESSENTIAL CHARACTER OF
THE DISCRIMINATION WHICH THE STATUTE SEEKS TO EFFECT IN THE USE OF
TRADE MARKS.  THE STATUTE DOES NOT DEAL WITH THE ADMISSION OF
CORPORATIONS, FOREIGN TO PUERTO RICO, FOR THE PURPOSE OF TRANSACTING
BUSINESS IN THE ISLAND.  PETITIONER RECEIVED ITS LOCAL LICENSE.  NOR
DOES THE STATUTE PROHIBIT THE MANUFACTURE OF RUM IN PUERTO RICO.  THAT
IS ALLOWED.  PETITIONER RECEIVED PERMITS FROM PUERTO RICO FOR THAT
MANUFACTURE AS WELL AS THE BASIC PERMITS FROM THE FEDERAL ALCOHOL
ADMINISTRATION.  THE STATUTORY RESTRICTION IS NOT ON DOING BUSINESS OR
MANUFACTURING APART FROM THE USE OF PETITIONER'S TRADE MARKS AND LABELS
TO DESIGNATE ITS PRODUCT.  AS TO THESE TRADE MARKS AND LABELS, THE
PROHIBITION DOES NOT REST ON LACK OF PROPER REGISTRATION UNDER THE
LOCAL LAW.  PETITIONER'S TRADE MARKS HAVE BEEN DULY REGISTERED IN THE
UNITED STATES AND PUERTO RICO.  NOR DOES THE PROHIBITION OF USE PROCEED
ON THE GROUND THAT THE TRADE MARKS, AS SUCH, ARE INVALID.  THE CUBAN
CORPORATION WHICH LICENSED PETITIONER TO MANUFACTURE AND SELL BACARDI
PRODUCTS AND TO USE BACARDI TRADE MARKS HAD FOR MANY YEARS SOLD ITS RUM
IN PUERTO RICO, ALTHOUGH THE RUM WAS NOT MANUFACTURED THERE.  THERE IS
NO QUESTION OF DECEPTION OR UNFAIR METHODS OF COMPETITION.  PETITIONER
IS PROHIBITED FROM THE USE OF ITS TRADE MARKS, ALTHOUGH VALID AND DULY
REGISTERED AND ALTHOUGH THE PRODUCT TO WHICH THEY ARE APPLIED IS
OTHERWISE LAWFULLY MADE AND THE SUBJECT OF LAWFUL SALE, SOLELY BECAUSE
THE MARKS HAD PREVIOUSLY BEEN USED OUTSIDE PUERTO RICO AND HAD NOT BEEN
USED ON SPIRITS MANUFACTURED IN PUERTO RICO, OR EXCLUSIVELY IN
CONTINENTAL UNITED STATES, PRIOR TO FEBRUARY 1, 1936. 

THE FIRST QUESTION THUS PRESENTED IS WHETHER THIS DISCRIMINATORY
ENACTMENT CONFLICTS WITH THE GENERAL INTER-AMERICAN CONVENTION FOR
TRADE MARK AND COMMERCIAL PROTECTION SIGNED AT WASHINGTON ON FEBRUARY
20, 1929.  FN7 

THIS TREATY WAS THE CULMINATION OF THE EFFORTS OF MANY YEARS TO
SECURE THE COOPERATION OF THE AMERICAN STATES IN UNIFORM TRADE MARK
PROTECTION.  AS PREVIOUS CONVENTIONS HAD NOT PROVED SATISFACTORY,  FN8
THE SIXTH INTERNATIONAL CONFERENCE OF AMERICAN STATES, HELD AT HAVANA
IN 1928, RECOMMENDED TO THE GOVERNING BOARD OF THE PAN AMERICAN UNION
THE CALLING OF A SPECIAL CONFERENCE "FOR THE PURPOSE OF STUDYING IN ITS
AMPLEST SCOPE THE PROBLEM OF THE INTER-AMERICAN PROTECTION OF TRADE
MARKS."  DELEGATES FROM THE RESPECTIVE STATES WERE APPOINTED
ACCORDINGLY AND FROM THEIR PROCEEDINGS THE CONVENTION OF 1929
RESULTED.  THERE WERE OBVIOUS DIFFICULTIES TO BE SURMOUNTED.  THESE
INHERED IN THE DIFFERENCES BETWEEN THE PRINCIPLES OF TRADE MARK
PROTECTION IN THE LATIN AMERICAN COUNTRIES, WHERE THE CIVIL LAW IS
FOLLOWED, AND THE COMMON LAW PRINCIPLES OBTAINING IN THE UNITED
STATES.  THE CONVENTION STATES THAT THE CONTRACTING STATES WERE
"ANIMATED BY THE DESIRE TO RECONCILE THE DIFFERENT JURIDICAL SYSTEMS
WHICH PREVAIL IN THE SEVERAL AMERICAN REPUBLICS" AND RESOLVED TO
NEGOTIATE THE CONVENTION "FOR THE PROTECTION OF TRADE MARKS, TRADE
NAMES, AND FOR THE REPRESSION OF UNFAIR COMPETITION AND FALSE
INDICATIONS OF GEOGRAPHICAL ORIGIN." 

BY CHAPTER I, ENTITLED "EQUALITY OF CITIZENS AND ALIENS AS TO TRADE
MARK AND COMMERCIAL PROTECTION," THE RESPECTIVE CONTRACTING STATES BIND
THEMSELVES TO GRANT TO THE NATIONALS OF THE OTHER CONTRACTING STATES
THE SAME RIGHTS AND REMEDIES WHICH THEIR LAWS EXTEND TO THEIR OWN
NATIONALS. 

BY CHAPTER II, ENTITLED "TRADE MARK PROTECTION," PROVISION IS MADE
FOR REGISTRATION OR DEPOSIT OF TRADE MARKS IN THE PROPER OFFICES OF THE
CONTRACTING STATES.  ARTICLE 3 THEN SPECIFICALLY PROVIDES: 

"EVERY MARK DULY REGISTERED OR LEGALLY PROTECTED IN ONE OF THE
CONTRACTING STATES SHALL BE ADMITTED TO REGISTRATION OR DEPOSIT AND
LEGALLY PROTECTED IN THE OTHER CONTRACTING STATES, UPON COMPLIANCE WITH
THE FORMAL PROVISIONS OF THE DOMESTIC LAW OF SUCH STATES." 

THE GROUNDS UPON WHICH REGISTRATION OR DEPOSIT MAY BE REFUSED OR
CANCELED ARE THEN SET FORTH, INCLUDING THOSE CASES WHERE THE
DISTINGUISHING ELEMENTS OF MARKS INFRINGE RIGHTS ALREADY ACQUIRED BY
ANOTHER PERSON IN THE COUNTRY WHERE REGISTRATION OR DEPOSIT IS CLAIMED,
OR WHERE THEY LACK AN APPROPRIATE DISTINCTIVE CHARACTER, OR OFFEND
PUBLIC MORALS, ETC. (ART. 3).  IT IS FURTHER PROVIDED THAT LABELS,
INDUSTRIAL DESIGNS AND SLOGANS USED TO IDENTIFY OR TO ADVERTISE GOODS
SHALL RECEIVE THE SAME PROTECTION ACCORDED TO TRADE MARKS IN COUNTRIES
WHERE THEY ARE CONSIDERED AS SUCH, UPON COMPLIANCE WITH THE
REQUIREMENTS OF THE DOMESTIC TRADE MARK LAW (ART. 5).  THE OWNER OF A
MARK PROTECTED IN ONE OF THE CONTRACTING STATES IS PERMITTED TO OPPOSE
REGISTRATION OR DEPOSIT OF AN INTERFERING MARK (ART. 7); AND THE OWNER
OF A MARK REFUSED REGISTRATION BECAUSE OF AN INTERFERING MARK HAS THE
RIGHT TO APPLY FOR AND OBTAIN THE CANCELLATION OF THE INTERFERING MARK
ON MEETING STATED REQUIREMENTS.  (ART. 8.) 

THERE IS ANOTHER PROVISION THAT "THE USE AND EXPLOITATION OF TRADE
MARKS MAY BE TRANSFERRED SEPARATELY FOR EACH COUNTRY" AND PROPERLY
RECORDED.  (ART. 11.) 

CHAPTER III PROVIDES FOR THE "PROTECTION OF COMMERCIAL NAMES,"
CHAPTER IV FOR THE "REPRESSION OF UNFAIR COMPETITION," AND CHAPTER V
FOR THE "REPRESSION OF FALSE INDICATIONS OF GEOGRAPHICAL ORIGIN OR
SOURCE."  THE REMAINING CHAPTERS RELATE TO REMEDIES AND CONTAIN GENERAL
PROVISIONS.  AMONG THE LATTER IS ONE TO THE EFFECT THAT THE PROVISIONS
OF THE CONVENTION "SHALL HAVE THE FORCE OF LAW IN THOSE STATES IN WHICH
INTERNATIONAL TREATIES POSSESS THAT CHARACTER, AS SOON AS THEY ARE
RATIFIED BY THEIR CONSTITUTIONAL ORGANS."  AN ACCOMPANYING PROTOCOL
ESTABLISHES AN INTER-AMERICAN TRADE MARK BUREAU WHERE MARKS MAY BE
REGISTERED.    THE TEXT OF THE PROVISIONS ABOVE MENTIONED RELATING TO
THE PROTECTION OF TRADE MARKS IS SET FORTH IN THE MARGIN.  FN9 

THIS TREATY ON RATIFICATION BECAME A PART OF OUR LAW.  NO SPECIAL
LEGISLATION IN THE UNITED STATES WAS NECESSARY TO MAKE IT EFFECTIVE. 
HEAD MONEY CASES, 112 U.S. 580, 598, 599; ASAKURA V. SEATTLE, 265 U.S.
332, 341.  THE TREATY BOUND PUERTO RICO AND COULD NOT BE OVERRIDEN BY
THE PUERTO RICAN LEGISLATURE.  ASAKURA V. SEATTLE, SUPRA; NIELSEN V.
JOHNSON, 279 U.S. 47, 52; UNITED STATES V. BELMONT, 301 U.S. 324, 331. 
ACCORDING TO THE ACCEPTED CANON, WE SHOULD CONSTRUE THE TREATY
LIBERALLY TO GIVE EFFECT TO THE PURPOSE WHICH ANIMATES IT.  EVEN WHERE
A PROVISION OF A TREATY FAIRLY ADMITS OF TWO CONSTRUCTIONS, ONE
RESTRICTING, THE OTHER ENLARGING, RIGHTS WHICH MAY BE CLAIMED UNDER IT,
THE MORE LIBERAL INTERPRETATION IS TO BE PREFERRED.  JORDAN V. TASHIRO,
278 U.S. 123, 127; NIELSEN V. JOHNSON, SUPRA; FACTOR V. LAUBENHEIMER,
290 U.S. 276, 293, 294. 

HERE, THE CLEAR PURPOSE OF THE TREATY IS TO PROTECT THE FOREIGN TRADE
MARKS WHICH FALL WITHIN THE TREATY'S PURVIEW.  THE BASIC CONDITION OF
THAT PROTECTION, AS SET FORTH IN ARTICLE 3, IS THAT THE MARK SHALL HAVE
BEEN "DULY REGISTERED OR LEGALLY PROTECTED" IN ONE OF THE CONTRACTING
STATES.  THIS PHRASE SHOWS THE ENDEAVOR TO RECONCILE THE CONFLICTING
JURIDICAL PRINCIPLES OF THESE STATES, - THE WORDS "OR LEGALLY
PROTECTED" BEING ADDED TO THE WORDS "DULY REGISTERED" WITH THE APPARENT
INTENT TO COVER TRADE MARKS WHICH WERE ENTITLED UNDER THE COMMON LAW TO
PROTECTION BY REASON OF APPROPRIATION AND USE.  FN10  IF DULY
REGISTERED OR LEGALLY PROTECTED IN ONE OF THE CONTRACTING STATES, THE
MARK IS TO BE ADMITTED TO REGISTRATION OR DEPOSIT AND IS TO BE LEGALLY
PROTECTED IN THE OTHER CONTRACTING STATES.  THE CONDITION OF THAT
PROTECTION IN THE OTHER STATES IS COMPLIANCE "WITH THE FORMAL
PROVISIONS" OF THE DOMESTIC LAW.  THIS CLEARLY INDICATES THAT
FORMALITIES OR PROCEDURAL REQUISITES ARE ENVISAGED AND THAT, WHEN THESE
HAVE BEEN MET, IT IS THE INTENT OF THE TREATY TO CONFER A SUBSTANTIVE
RIGHT TO THE PROTECTION OF THE FOREIGN MARK.  THE INTENT TO GIVE THIS
RIGHT OF PROTECTION IF THE MARK IS ENTITLED TO REGISTRATION UNDER THE
TREATY, IS SHOWN WITH ABUNDANT CLARITY BY THE PROVISIONS OF THE SAME
ARTICLE SETTING FORTH THE GROUNDS, RELATING TO INFRINGEMENT OF
PREVIOUSLY ACQUIRED RIGHTS OR LACK OF DISTINCTIVE CHARACTER, ETC., UPON
WHICH REGISTRATION MAY BE REFUSED OR CANCELED IN THE COUNTRY WHERE
PROTECTION IS SOUGHT.  ALSO BY THE PROVISIONS AS TO THE RIGHT OF THE
OWNER OF A MARK PROTECTED IN ONE OF THE CONTRACTING STATES TO OPPOSE
REGISTRATION IN ANOTHER STATE OF AN INTERFERING MARK (ART. 7); AND BY
THE PROVISIONS AS TO THE RIGHT OF THE OWNER OF A MARK, HAVING ITS
ORIGIN IN ONE STATE AND SEEKING REGISTRATION IN ANOTHER, TO OBTAIN
CANCELLATION OR ANNULMENT OF AN INTERFERING MARK WHICH STANDS IN THE
WAY OF THE REGISTRATION SOUGHT, UPON PROVING PRIORITY OF RIGHT AS
STATED.  (ART. 8.)  THEN THERE IS THE ADDITIONAL RECOGNITION OF THE
RIGHT TO TRANSFER THE OWNERSHIP OF A REGISTERED MARK AND ALSO TO
TRANSFER SEPARATELY FOR EACH COUNTRY THE USE AND EXPLOITATION OF TRADE
MARKS WHEN THE TRANSFER IS EXECUTED IN ACCORDANCE WITH THE LAW OF THE
PLACE WHERE IT IS MADE AND IS DULY RECORDED.  IT WILL BE OBSERVED THAT
THE RIGHT OF PROTECTION OF THE FOREIGN MARKS, ON COMPLIANCE WITH THE
PRESCRIBED FORMALITIES, IS ACCORDED IN EACH OF THE RATIFYING STATES
IRRESPECTIVE OF CITIZENSHIP OR DOMICILE.  FN11  WHEN THE FOREIGN MARK
IS ENTITLED BY VIRTUE OF THE TREATY TO REGISTRATION IN A RATIFYING
STATE, AND IS DULY REGISTERED THERE, THE SUBSTANTIVE RIGHT TO ITS
PROTECTION IN THAT STATE ATTACHES. 

IN THIS VIEW, THE CONTENTION THAT A RATIFYING STATE, ON DUE
REGISTRATION OF A FOREIGN MARK IN ACCORDANCE WITH THE TREATY, IS NOT
BOUND TO PROTECT THE OWNER IN THE USE OF THAT MARK PROVIDED IT REFUSES
THAT PROTECTION TO ITS OWN NATIONALS NECESSARILY FAILS.  UNDOUBTEDLY
THE CONTRACTING STATES ARE BOUND RESPECTIVELY TO GIVE TO THE NATIONALS
OF THE OTHER CONTRACTING STATES THE SAME RIGHTS AND REMEDIES THAT ARE
EXTENDED TO THEIR OWN NATIONALS.  THAT IS PROVIDED IN ARTICLE 1.  BUT
THAT PROVISION DOES NOT EXHAUST THE RIGHTS GIVEN BY THE TREATY.  THESE
RIGHTS UNDER ARTICLE 3 EXTEND TO THE LEGAL PROTECTION OF THE FOREIGN
MARKS WHEN DULY REGISTERED.  WHEN PROTECTION IS SOUGHT FOR SUCH MARKS A
RATIFYING STATE CANNOT ESCAPE THE OBLIGATIONS OF THE TREATY AND DENY
PROTECTION BY THE SIMPLE DEVICE OF EMBRACING ITS OWN NATIONALS IN THAT
DENIAL.  THAT WOULD MAKE A MOCKERY OF THE TREATY.  IT IS ITS PLAIN
PURPOSE TO PREVENT A RATIFYING STATE FROM DENYING PROTECTION TO THE
FOREIGN MARK BECAUSE OF ITS ORIGIN OR PREVIOUS REGISTRATION IN A
FOREIGN COUNTRY.  IT IS SAID THAT THE OBJECT OF THE TREATY IS TO
PREVENT PIRACY.  THAT IS TRUE, BUT THE ARGUMENT DOES NOT MEET THE
ISSUE.  PROTECTION AGAINST PIRACY NECESSARILY PRESUPPOSES THE RIGHT TO
USE THE MARKS THUS PROTECTED. 

WE ARE HERE CONCERNED WITH THE CONSTRUCTION OF THE TREATY ONLY AS IT
INVOLVES THE DETERMINATION OF THE VALIDITY OF THE STATUTORY
DISCRIMINATION AGAINST THE FOREIGN MARKS WHICH HAVE BEEN DULY
REGISTERED IN THE UNITED STATES AND PUERTO RICO.  THE BACARDI MARKS ARE
OF CUBAN ORIGIN.  WE MUST ASSUME UPON THIS RECORD THAT THEY WERE DULY
REGISTERED AND WERE VALID IN CUBA.  BOTH THE UNITED STATES AND CUBA
HAVE RATIFIED THE TREATY.  FN12  THE RIGHT OF THE CUBAN CORPORATION
WHICH OWNED THE MARKS TO MAKE A SEPARATE TRANSFER TO PETITIONER OF THE
RIGHT TO USE AND EXPLOIT THEM IN PUERTO RICO IS RECOGNIZED BY THE
TREATY.  DESPITE THIS, PUERTO RICO HAS ATTEMPTED TO DENY THE RIGHT TO
USE THESE MARKS ON RUM MANUFACTURED IN PUERTO RICO FOR THE SOLE REASON
THAT THE MARKS HAD BEEN USED OUTSIDE PUERTO RICO AND HAD NOT BEEN USED
ON SPIRITS MADE THERE, OR EXCLUSIVELY IN CONTINENTAL UNITED STATES,
BEFORE THE GIVEN DATE.  THAT IS, THE VERY FACT OF ORIGIN IN CUBA, WHICH
MAKES THE TREATY APPLICABLE, IS ASSERTED AS A GROUND FOR DENYING THE
RIGHT TO USE THE TRADE MARKS, DULY REGISTERED, ON A PRODUCT OTHERWISE
LAWFULLY MANUFACTURED IN PUERTO RICO. 

THAT PUERTO RICO MAKES ITS RULE APPLICABLE TO ITS OWN CITIZENS WHO
MAY POSSESS SUCH FOREIGN MARKS CANNOT AVAIL TO PURGE THE DISCRIMINATION
OF ITS HOSTILITY TO THE TREATY.  THE SAME REASONING, IF ADMITTED TO
SUSTAIN THIS PARTICULAR DISCRIMINATION, WOULD JUSTIFY AS AGAINST THE
TREATY A LOCAL STATUTE DENYING THE RIGHT TO USE IN PUERTO RICO ANY
FOREIGN TRADE MARK IN ANY CIRCUMSTANCES. 

THE EXIGENCIES OF LOCAL TRADE AND MANUFACTURE WHICH PROMPTED THE
ENACTMENT OF THE STATUTE CANNOT SAVE IT, AS THE UNITED STATES IN
EXERCISING ITS TREATY MAKING POWER DOMINATES LOCAL POLICY. 

WE ARE NOT IMPRESSED BY THE ARGUMENT THAT PETITIONER IS ESTOPPED BY
ACTS OF ACQUIESCENCE TO CHALLENGE THE VALIDITY OF THE PUERTO RICAN
LEGISLATION.  IT IS SAID THAT PETITIONER, HAVING ACCEPTED THE PRIVILEGE
TO ENGAGE IN THE LOCAL BUSINESS, IS BOUND BY THE PRESCRIBED
CONDITIONS.  THE BASIS OF THE CONTENTION FAILS.  IT DOES NOT APPEAR
THAT PETITIONER APPLIED FOR A PERMIT UNDER THE ACT OF 1937 WHICH IS THE
SUBJECT OF ATTACK.  PETITIONER DID APPLY, ON MARCH 31, 1936, FOR A
PERMIT TO ENGAGE IN THE BUSINESS OF RECTIFYING DISTILLED SPIRITS.  AT
THAT TIME THE LEGISLATION OF PUERTO RICO DID NOT DISCRIMINATE AGAINST
PETITIONER'S TRADE MARKS, AND THE LEGISLATION OF MAY 15, 1936, WAS OF A
TEMPORARY CHARACTER.  APART FROM THAT, IT IS NOT THE RIGHT TO
MANUFACTURE, ASIDE FROM THE USE OF TRADE MARKS, THAT IS IN DISPUTE HERE
BUT THE RIGHT TO USE PETITIONER'S TRADE MARKS UPON ITS PRODUCT. 
NOTHING HAS BEEN SHOWN TO WARRANT A FINDING OF ESTOPPEL TO ASSERT THE
INVALIDITY OF THE DISCRIMINATION THUS ATTEMPTED IN VIOLATION OF THE
TREATY.  W.W. CARGILL CO. V. MINNESOTA, 180 U.S. 452, 468; HANOVER FIRE
INSURANCE CO. V. HARDING, 272 U.S. 494, 507; POWER MANUFACTURING CO. V.
SAUNDERS, 274 U.S. 490, 497; FROST V. CORPORATION COMMISSION, 278 U.S.
515, 527, 528. 

WE CONCLUDE THAT, UPON THIS GROUND OF REPUGNANCE TO THE TREATY, THE
DECREE OF THE DISTRICT COURT INSOFAR AS IT ENJOINED THE ENFORCEMENT OF
SEC. 44 OF ACT NO. 6 OF JUNE 30, 1936, AS AMENDED BY ACT NO. 149 OF MAY
15, 1937, (INCLUDING THE AMENDMENT MADE BY SEC. 7 OF THAT ACT) WITH
RESPECT TO PETITIONER'S TRADE MARKS, WAS RIGHT, AND THAT THE REVERSAL
IN THAT RELATION BY THE CIRCUIT COURT OF APPEALS WAS ERRONEOUS. 

WE HAVE NO OCCASION TO CONSIDER THE OTHER GROUNDS OF OBJECTION TO
SEC. 44 WHICH HAVE BEEN URGED UNDER THE CONSTITUTION AND LAWS OF THE
UNITED STATES AND THE ORGANIC ACT OF PUERTO RICO. 

A DIFFERENT SITUATION IS PRESENTED WITH RESPECT TO SEC. 44(B) OF ACT
NO. 149 OF 1937, PROHIBITING BULK SHIPMENTS OF DISTILLED SPIRITS.  THIS
PROHIBITION DOES NOT APPEAR TO OFFEND ANY RIGHT CONFERRED BY THE TREATY
AND WE THINK AN ADEQUATE BASIS FOR IT IS FOUND IN THE POLICE POWER OF
PUERTO RICO AS APPLIED TO TRAFFIC IN INTOXICATING LIQUORS.  WE HAVE
RECENTLY SAID THAT "THE AIM OF THE FORAKER ACT AND THE ORGANIC ACT WAS
TO GIVE PUERTO RICO FULL POWER OF LOCAL SELF-DETERMINATION, WITH AN
AUTONOMY SIMILAR TO THAT OF THE STATES AND INCORPORATED TERRITORIES." 
PUERTO RICO V. SHELL COMPANY, 302 U.S. 253, 261, 262.  SEE, ALSO,
PUERTO RICO V. RUBERT HERMANOS, 309 U.S. 543, 547.  AS THE GRANT OF
LEGISLATIVE POWER IN RESPECT OF LOCAL MATTERS WAS "AS BROAD AND
COMPREHENSIVE AS LANGUAGE COULD MAKE IT" (PUERTO RICO V. SHELL COMPANY,
SUPRA), WE THINK THE LEGISLATURE OF PUERTO RICO IN THE EXERCISE OF ITS
POLICE POWER HAD FULL AUTHORITY TO DEAL WITH THE MANUFACTURE OF, AND
TRAFFIC IN, INTOXICATING LIQUORS, SO FAR AS THE ISLAND WAS AFFECTED, IN
THE ABSENCE OF A TREATY VIOLATION SUCH AS WE HAVE FOUND IN THE
PROHIBITION OF THE USE OF VALID TRADE MARKS UPON LIQUORS WHICH WERE
OTHERWISE PERMITTED TO BE MANUFACTURED AND SOLD.  THE LEGISLATURE OF
PUERTO RICO COULD THUS HAVE ABSOLUTELY INTERDICTED THE MANUFACTURE OR
SALE (MUGLER V. KANSAS, 123 U.S. 623), THE IMPORTATION INTO THE ISLAND
(STATE BOARD OF EQUALIZATION V. YOUNG'S MARKET CO., 299 U.S. 59, 62;
MAHONEY V. JOSEPH TRINER CORP., 304 U.S. 401, 404) AND THE EXPORTATION
FROM THE ISLAND.  ZIFFRIN V. REEVES, 308 U.S. 132, 139.  HAVING THIS
POWER, THE LEGISLATURE OF PUERTO RICO COULD ADOPT MEASURES REASONABLY
APPROPRIATE TO CARRY OUT ITS INHIBITIONS.  THAT BROAD POWER NECESSARILY
EMBRACED THE LIMITED EXERCISE WHICH WE FIND IN SEC. 44(B) WITH RESPECT
TO SHIPMENTS IN BULK.  NOR DO WE FIND ANYTHING IN THE FEDERAL ALCOHOL
ADMINISTRATION ACT WHICH MILITATES AGAINST THAT PROVISION.  THE CIRCUIT
COURT OF APPEALS DID NOT ERR IN ITS DECISION IN THIS RESPECT. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS IN RELATION TO SEC. 44 IS
REVERSED AND THE DECREE OF THE DISTRICT COURT IS MODIFIED SO AS TO
ELIMINATE THE INJUNCTION AGAINST THE ENFORCEMENT OF SEC. 40  FN13  AND
SEC. 44(B) OF ACT NO. 149 OF MAY 15, 1937, AND AS THUS MODIFIED IS
AFFIRMED.  IT IS SO ORDERED. 

FN1  THESE PROVISIONS WERE AS FOLLOWS (LAWS OF PUERTO RICO, 1936, PP.
610, 644, 646): 

"(G)  NO HOLDER OF A PERMIT UNDER THIS TITLE SHALL MANUFACTURE,
DISTILL, RECTIFY, OR BOTTLE, EITHER FOR HIMSELF OR FOR OTHERS, ANY
DISTILLED SPIRIT LOCALLY OR NATIONALLY KNOWN UNDER A BRAND, TRADE NAME,
OR TRADE-MARK PREVIOUSLY USED ON SIMILAR PRODUCTS MANUFACTURED IN A
FOREIGN COUNTRY, OR IN ANY OTHER PLACE OUTSIDE PUERTO RICO; PROVIDED,
(1) THAT SUCH LIMITATION, AIMED AT PROTECTING THE INDUSTRY ALREADY
EXISTING IN PUERTO RICO, SHALL NOT APPLY TO ANY BRAND, TRADE NAME, OR
TRADE-MARK USED BY A MANUFACTURER, RECTIFIER, DISTILLER, OR BOTTLER OF
DISTILLED SPIRITS MANUFACTURED IN PUERTO RICO ON FEBRUARY 1, 1936; AND
(2) SUCH RESTRICTION SHALL NOT APPLY TO ANY NEW BRAND, TRADE NAME, OR
TRADE-MARK WHICH MAY IN THE FUTURE BE USED IN PUERTO RICO." 

"(H)  IF ANY KIND, TYPE, OR BRAND OF DISTILLED SPIRITS OF A FOREIGN
ORIGIN BECOMES NATIONALLY OR INTERNATIONALLY KNOWN BY REASON OF ITS
BEARING OR SHOWING AS ITS BRAND, TRADE NAME, OR TRADE-MARK, THE PROPER
NAME OF THE MANUFACTURER THEREOF, SUCH NAME SHALL NOT, IN ANY MANNER OR
FORM WHATEVER, APPEAR ON THE LABELS FOR ANY DISTILLED SPIRIT OF SAID
KIND OR TYPE MANUFACTURED, DISTILLED, RECTIFIED, OR BOTTLED IN PUERTO
RICO." 

FN2  LAWS OF PUERTO RICO, THIRD SPECIAL SESSION, 1936, P. 78. 

FN3  LAWS OF PUERTO RICO, 1937, P. 392. 

FN4  THIS DECLARATION IS AS FOLLOWS: 

"SECTION 1(B).  DECLARATION OF POLICY.  IT HAS BEEN AND IS THE
INTENTION AND THE POLICY OF THIS LEGISLATURE TO PROTECT THE RENASCENT
LIQUOR INDUSTRY OF PUERTO RICO FROM ALL COMPETITION BY FOREIGN CAPITAL
SO AS TO AVOID THE INCREASE AND GROWTH OF FINANCIAL ABSENTEEISM AND TO
FAVOR SAID DOMESTIC INDUSTRY SO THAT IT MAY RECEIVE ADEQUATE PROTECTION
AGAINST ANY UNFAIR COMPETITION IN THE PUERTO RICAN MARKET, THE
CONTINENTAL AMERICAN MARKET, AND IN ANY OTHER POSSIBLE PURCHASING
MARKET." 

FN5  THERE FOLLOWED IN SEC. 44(B), AFTER THE PROVISION QUOTED IN THE
TEXT, A PROVISO RELATING TO THE LIQUIDATION OF A STOCK OF RUM WHERE A
RECTIFIER WISHES TO WITHDRAW FROM BUSINESS. 

FN6  SECTION 7 IS AS FOLLOWS:  "IN REGARD TO TRADE MARKS, THE
PROVISIONS OF THE PROVISO OF SECTION 44 OF ACT NO. 6, APPROVED JUNE 30,
1936, AND WHICH IS HEREBY AMENDED, SHALL BE APPLICABLE ONLY TO SUCH
TRADE MARKS AS SHALL HAVE BEEN USED EXCLUSIVELY IN THE CONTINENTAL
UNITED STATES BY ANY DISTILLER, RECTIFIER, MANUFACTURER, BOTTLER, OR
CANNER OF DISTILLED SPIRITS PRIOR TO FEBRUARY 1, 1936, PROVIDED SUCH
TRADE MARKS HAVE NOT BEEN USED, IN WHOLE OR IN PART, BY A DISTILLER,
RECTIFIER, MANUFACTURER, BOTTLER, OR CANNER OF DISTILLED SPIRITS
OUTSIDE OF THE CONTINENTAL UNITED STATES, AT ANY TIME PRIOR TO SAID
DATE."    FN7  THE CONVENTION WAS RATIFIED BY THE UNITED STATES ON
FEBRUARY 11, 1931, AND PROCLAIMED FEBRUARY 27, 1931.  46 STAT. 2907. 
IT WAS RATIFIED BY CUBA IN 1930.  ID., P. 2976.  IT HAS ALSO BEEN
RATIFIED BY COLOMBIA, GUATEMALA, HAITI, HONDURAS, NICARAGUA, PANAMA AND
PERU.  BULLETIN, U.S. TRADE-MARK ASSOCIATION, 1936, P. 174. 

FN8  LADAS, "THE INTERNATIONAL PROTECTION OF TRADE MARKS BY THE
AMERICAN REPUBLICS," PP. 11 ET SEQ.; DERENBERG, "TRADE-MARK PROTECTION
AND UNFAIR TRADING," PP. 779 ET SEQ.    FN9  "CHAPTER I. EQUALITY OF
CITIZENS AND ALIENS AS TO TRADE MARK AND COMMERCIAL PROTECTION. 

"ARTICLE 1.  THE CONTRACTING STATES BIND THEMSELVES TO GRANT TO THE
NATIONALS OF THE OTHER CONTRACTING STATES AND TO DOMICILED FOREIGNERS
WHO OWN A MANUFACTURING OR COMMERCIAL ESTABLISHMENT OR AN AGRICULTURAL
DEVELOPMENT IN ANY OF THE STATES WHICH HAVE RATIFIED OR ADHERED TO THE
PRESENT CONVENTION THE SAME RIGHTS AND REMEDIES WHICH THEIR LAWS EXTEND
TO THEIR OWN NATIONALS OR DOMICILED PERSONS WITH RESPECT TO TRADE
MARKS, TRADE NAMES, AND THE REPRESSION OF UNFAIR COMPETITION AND FALSE
INDICATIONS OF GEOGRAPHICAL ORIGIN OR SOURCE." 

"CHAPTER II.  TRADE MARK PROTECTION. 

"ARTICLE 2.  THE PERSON WHO DESIRES TO OBTAIN PROTECTION FOR HIS
MARKS IN A COUNTRY OTHER THAN HIS OWN, IN WHICH THIS CONVENTION IS IN
FORCE, CAN OBTAIN PROTECTION EITHER BY APPLYING DIRECTLY TO THE PROPER
OFFICE OF THE STATE IN WHICH HE DESIRES TO OBTAIN PROTECTION, OR
THROUGH THE INTER-AMERICAN TRADE MARK BUREAU REFERRED TO IN THE
PROTOCOL ON THE INTER-AMERICAN REGISTRATION OF TRADE MARKS, IF THIS
PROTOCOL HAS BEEN ACCEPTED BY HIS COUNTRY AND THE COUNTRY IN WHICH HE
SEEKS PROTECTION." 

"ARTICLE 3.  EVERY MARK DULY REGISTERED OR LEGALLY PROTECTED IN ONE
OF THE CONTRACTING STATES SHALL BE ADMITTED TO REGISTRATION OR DEPOSIT
AND LEGALLY PROTECTED IN THE OTHER CONTRACTING STATES, UPON COMPLIANCE
WITH THE FORMAL PROVISIONS OF THE DOMESTIC LAW OF SUCH STATES. 

"REGISTRATION OR DEPOSIT MAY BE REFUSED OR CANCELED OF MARKS: 

"1.  THE DISTINGUISHING ELEMENTS OF WHICH INFRINGE RIGHTS ALREADY
ACQUIRED BY ANOTHER PERSON IN THE COUNTRY WHERE REGISTRATION OR DEPOSIT
IS CLAIMED. 

"2.  WHICH LACK ANY DISTINCTIVE CHARACTER OR CONSIST EXCLUSIVELY OF
WORDS, SYMBOLS, OR SIGNS WHICH SERVE IN TRADE TO DESIGNATE THE CLASS,
KIND, QUALITY, QUANTITY, USE, VALUE, PLACE OF ORIGIN OF THE PRODUCTS,
TIME OF PRODUCTION, OR WHICH ARE OR HAVE BECOME AT THE TIME
REGISTRATION OR DEPOSIT IS SOUGHT, GENERIC OR USUAL TERMS IN CURRENT
LANGUAGE OR IN THE COMMERCIAL USAGE OF THE COUNTRY WHERE REGISTRATION
OR DEPOSIT IS SOUGHT, WHEN THE OWNER OF THE MARKS SEEKS TO APPROPRIATE
THEM AS A DISTINGUISHING ELEMENT OF HIS MARK. 

"IN DETERMINING THE DISTINCTIVE CHARACTER OF A MARK, ALL THE
CIRCUMSTANCES EXISTING SHOULD BE TAKEN INTO ACCOUNT, PARTICULARLY THE
DURATION OF THE USE OF THE MARK AND IF IN FACT IT HAS ACQUIRED IN THE
COUNTRY WHERE DEPOSIT, REGISTRATION OR PROTECTION IS SOUGHT, A
SIGNIFICANCE DISTINCTIVE OF THE APPLICANT'S GOODS. 

"3.  WHICH OFFEND PUBLIC MORALS OR WHICH MAY BE CONTRARY TO PUBLIC
ORDER. 

"4.  WHICH TEND TO EXPOSE PERSONS, INSTITUTIONS, BELIEFS, NATIONAL
SYMBOLS OR THOSE OF ASSOCIATIONS OF PUBLIC INTEREST, TO RIDICULE OR
CONTEMPT. 

"5.  WHICH CONTAIN REPRESENTATIONS OF RACIAL TYPES OR SCENES TYPICAL
OR CHARACTERISTIC OF ANY OF THE CONTRACTING STATES, OTHER THAN THAT OF
THE ORIGIN OF THE MARK. 

"6.  WHICH HAVE AS A PRINCIPAL DISTINGUISHING ELEMENT, PHRASES, NAMES
OR SLOGANS WHICH CONSTITUTE THE TRADE NAME OR AN ESSENTIAL OR
CHARACTERISTIC PART THEREOF, BELONGING TO SOME PERSON ENGAGED IN ANY OF
THE OTHER CONTRACTING STATES IN THE MANUFACTURE, TRADE OR PRODUCTION OF
ARTICLES OR MERCHANDISE OF THE SAME CLASS AS THAT TO WHICH THE MARK
APPLIED."  ... 

"ARTICLE 5.  LABELS, INDUSTRIAL DESIGNS, SLOGANS, PRINTS, CATALOGUES
OR ADVERTISEMENTS USED TO IDENTIFY OR TO ADVERTISE GOODS, SHALL RECEIVE
THE SAME PROTECTION ACCORDED TO TRADE MARKS IN COUNTRIES WHERE THEY ARE
CONSIDERED AS SUCH, UPON COMPLYING WITH THE REQUIREMENTS OF THE
DOMESTIC TRADE MARK LAW."  ... 

"ARTICLE 7.  ANY OWNER OF A MARK PROTECTED IN ONE OF THE CONTRACTING
STATES IN ACCORDANCE WITH ITS DOMESTIC LAW, WHO MAY KNOW THAT SOME
OTHER PERSON IS USING OR APPLYING TO REGISTER OR DEPOSIT AN INTERFERING
MARK IN ANY OTHER OF THE CONTRACTING STATES, SHALL HAVE THE RIGHT TO
OPPOSE SUCH USE, REGISTRATION OR DEPOSIT AND SHALL HAVE THE RIGHT TO
EMPLOY ALL LEGAL MEANS, PROCEDURE OR RECOURSE PROVIDED IN THE COUNTRY
IN WHICH SUCH INTERFERING MARK IS BEING USED OR WHERE ITS REGISTRATION
OR DEPOSIT IS BEING SOUGHT, AND UPON PROOF THAT THE PERSON WHO IS USING
SUCH MARK OR APPLYING TO REGISTER OR DEPOSIT IT, HAD KNOWLEDGE OF THE
EXISTENCE AND CONTINUOUS USE IN ANY OF THE CONTRACTING STATES OF THE
MARK ON WHICH OPPOSITION IS BASED UPON GOODS OF THE SAME CLASS, THE
OPPOSER MAY CLAIM FOR HIMSELF THE PREFERENTIAL RIGHT TO USE SUCH MARK
IN THE COUNTRY WHERE THE OPPOSITION IS MADE OR PRIORITY TO REGISTER OR
DEPOSIT IT IN SUCH COUNTRY, UPON COMPLIANCE WITH THE REQUIREMENTS
ESTABLISHED BY THE DOMESTIC LEGISLATION IN SUCH COUNTRY AND BY THIS
CONVENTION." 

"ARTICLE 8.  WHEN THE OWNER OF A MARK SEEKS THE REGISTRATION OR
DEPOSIT OF THE MARK IN A CONTRACTING STATE OTHER THAN THAT OF ORIGIN OF
THE MARK AND SUCH REGISTRATION OR DEPOSIT IS REFUSED BECAUSE OF THE
PREVIOUS REGISTRATION OR DEPOSIT OF AN INTERFERING MARK, HE SHALL HAVE
THE RIGHT TO APPLY FOR AND OBTAIN THE CANCELLATION OR ANNULMENT OF THE
INTERFERING MARK UPON PROVING, IN ACCORDANCE WITH THE LEGAL PROCEDURE
OF THE COUNTRY IN WHICH CANCELLATION IS SOUGHT, THE STIPULATIONS IN
PARAGRAPH (A) AND THOSE OF EITHER PARAGRAPH (B) OR (C) BELOW: 

"(A)  THAT HE ENJOYED LEGAL PROTECTION FOR HIS MARK IN ANOTHER OF THE
CONTRACTING STATES PRIOR TO THE DATE OF THE APPLICATION FOR THE
REGISTRATION OR DEPOSIT WHICH HE SEEKS TO CANCEL; AND 

"(B)  THAT THE CLAIMANT OF THE INTERFERING MARK, THE CANCELLATION OF
WHICH IS SOUGHT, HAD KNOWLEDGE OF THE USE, EMPLOYMENT, REGISTRATION OR
DEPOSIT IN ANY OF THE CONTRACTING STATES OF THE MARK FOR THE SPECIFIC
GOODS TO WHICH SAID INTERFERING MARK IS APPLIED, PRIOR TO ADOPTION AND
USE THEREOF OR PRIOR TO THE FILING OF THE APPLICATION OR DEPOSIT OF THE
MARK WHICH IS SOUGHT TO BE CANCELLED; OR 

"(C)  THAT THE OWNER OF THE MARK WHO SEEKS CANCELLATION BASED ON A
PRIOR RIGHT TO THE OWNERSHIP AND USE OF SUCH MARK, HAS TRADED OR TRADES
WITH OR IN THE COUNTRY IN WHICH CANCELLATION IS SOUGHT, AND THAT GOODS
DESIGNATED BY HIS MARK HAVE CIRCULATED AND CIRCULATE IN SAID COUNTRY
FROM A DATE PRIOR TO THE FILING OF THE APPLICATION FOR REGISTRATION OR
DEPOSIT FOR THE MARK, THE CANCELLATION WHICH IS CLAIMED, OR PRIOR TO
THE ADOPTION AND USE OF THE SAME."  ... 

"ARTICLE 11.  THE TRANSFER OF THE OWNERSHIP OF A REGISTERED OR
DEPOSITED MARK IN THE COUNTRY OF ITS ORIGINAL REGISTRATION SHALL BE
EFFECTIVE AND SHALL BE RECOGNIZED IN THE OTHER CONTRACTING STATES,
PROVIDED THAT RELIABLE PROOF BE FURNISHED THAT SUCH TRANSFER HAS BEEN
EXECUTED AND REGISTERED IN ACCORDANCE WITH THE INTERNAL LAW OF THE
STATE IN WHICH SUCH TRANSFER TOOK PLACE.  SUCH TRANSFER SHALL BE
RECORDED IN ACCORDANCE WITH THE LEGISLATION OF THE COUNTRY IN WHICH IT
IS TO BE EFFECTIVE. 

"THE USE AND EXPLOITATION OF TRADE MARKS MAY BE TRANSFERRED
SEPARATELY FOR EACH COUNTRY, AND SUCH TRANSFER SHALL BE RECORDED UPON
THE PRODUCTION OF RELIABLE PROOF THAT SUCH TRANSFER HAS BEEN EXECUTED
IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE IN WHICH SUCH TRANSFER
TOOK PLACE.  SUCH TRANSFER SHALL BE RECORDED IN ACCORDANCE WITH THE
LEGISLATION OF THE COUNTRY IN WHICH IT IS TO BE EFFECTIVE." 

FN10  DERENBERG, OP CIT., P. 788. 

FN11  SEE BULLETIN, U.S. TRADE MARK ASSOCIATION, 1931, P. 173;
DERENBERG, OP. CIT., P. 788. 

FN12  THE SOLICITOR GENERAL HAS SUBMITTED TO THE COURT A
COMMUNICATION BY THE CUBAN EMBASSY IN WASHINGTON TO THE SECRETARY OF
STATE OF THE UNITED STATES RELATING TO THE INTEREST OF CUBAN NATIONALS
AND THE CUBAN GOVERNMENT IN THE QUESTION HERE PRESENTED. 

FN13  SECTION 40 WAS EMBRACED IN THE DECREE OF THE DISTRICT COURT BUT
IS NOT THE SUBJECT OF ATTACK IN THIS COURT. 
..END :


















FIDELITY TRUST CO. V. FIELD, 311 U.S. 169 


NO. 32.  ARGUED NOVEMBER 12, 13, 1940.  - DECIDED DECEMBER 9, 1940.  -
108 F.2D 521, REVERSED - DISTRICT COURT AFFIRMED. 


1.  WHERE THE APPLICABLE RULE OF DECISION IS THE STATE LAW, THE DUTY
OF THE FEDERAL COURT IS TO ASCERTAIN AND APPLY THAT LAW EVEN THOUGH IT
HAS NOT BEEN EXPOUNDED BY THE HIGHEST COURT OF THE STATE.  P. 177. 

2.  AN INTERMEDIATE STATE COURT IN DECLARING AND APPLYING THE STATE
LAW IS ACTING AS AN ORGAN OF THE STATE, AND ITS DETERMINATION, IN THE
ABSENCE OF MORE CONVINCING EVIDENCE OF WHAT THE STATE LAW IS, SHOULD BE
FOLLOWED BY A FEDERAL COURT IN DECIDING A STATE QUESTION.  P. 177. 

3.  CERTAIN STATUTES OF NEW JERSEY HAD BEEN HELD BY THE STATE COURT
OF CHANCERY, IN TWO CASES DECIDED INDEPENDENTLY BY TWO VICE
CHANCELLORS, NOT TO HAVE CHANGED THE PREEXISTING LAW OF THE STATE WITH
RESPECT TO THE INSUFFICIENCY OF A MERE SAVINGS BANK DEPOSIT MADE BY A
DECEDENT IN HIS OWN NAME AS "TRUSTEE" FOR ANOTHER, BUT OVER WHICH HE
EXERCISED COMPLETE CONTROL DURING HIS LIFE, TO ESTABLISH A GIFT INTER
VIVOS OR TO CREATE A TRUST AS AGAINST THE DECEDENT'S LEGAL
REPRESENTATIVES.  SO FAR AS APPEARED, THE COURT OF APPEALS OF NEW
JERSEY HAD NOT EXPRESSED ANY OPINION ON THE CONSTRUCTION OR EFFECT OF
THESE STATUTES, AND THE DECISIONS OF THE CHANCERY COURT STOOD AS THE
ONLY EXPOSITION OF THE RELEVANT STATE LAW.  HELD, IN A CASE PRESENTING
THE SAME QUESTION, THAT A FEDERAL COURT WAS BOUND TO FOLLOW THE
DECISIONS OF THE CHANCERY COURT, AND WAS NOT AT LIBERTY TO REJECT THEM
MERELY BECAUSE IT DID NOT AGREE WITH THEIR REASONING.  P. 178. 

4.  IT IS INADMISSIBLE THAT THERE SHOULD BE ONE RULE OF STATE LAW FOR
LITIGANTS IN THE STATE COURTS AND ANOTHER RULE, SIMPLY BECAUSE OF
DIVERSE CITIZENSHIP, FOR LITIGANTS IN THE FEDERAL COURTS.  P. 180. 

FIDELITY UNION TRUST CO. ET AL., EXECUTORS, V. FIELD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 309 U.S. 652, TO REVIEW THE REVERSAL OF A DECREE OF THE
DISTRICT COURT WHICH DECLINED TO FASTEN A TRUST ON A SAVINGS BANK
ACCOUNT.  JURISDICTION WAS BY DIVERSITY OF CITIZENSHIP. 

MR. CHARLES DANZIG, WITH WHOM MR. FRANCIS F. WELSH WAS ON THE BRIEF,
FOR PETITIONERS. 

THE NEW JERSEY STATUTE, AS CONSTRUED BY THE COURT OF CHANCERY OF NEW
JERSEY, SHOULD HAVE BEEN APPLIED.  ERIE R. CO. V. TOMPKINS, 304 U.S.
64; RUHLIN V. NEW YORK LIFE INS. CO., 304 U.S. 202; ROSENTHAL V. NEW
YORK LIFE INS. CO., 304 U.S. 263; KUHN V. FAIRMONT, 215 U.S. 349, 372;
BRINE V. HARTFORD FIRE INS. CO., 96 U.S. 627; MASINO V. WEST JERSEY &
S.S.R. CO., 41 F.2D 646; MURRAY V. PAYNE, 273 F. 820; ISLAND
DEVELOPMENT CO. V. MCGEORGE, 26 F.2D 841; CERT. DEN.  278 U.S. 642;
CF., DORRANCE V. MARTIN, 12 F.SUPP.  746; AFF'D 296 U.S. 393; AND,
FOLLOWING THE PENNSYLVANIA SUPERIOR COURTS (NOT THE HIGHEST COURT OF
PENNSYLVANIA) TAPLINGER V. NORTHWESTERN NATIONAL BANK, 101 F.2D 274;
BERLET V. LEHIGH VALLEY SILK MILLS, 287 F. 769; CF., STEINBACH V.
METZGER, 63 F.2D 74. 

SEE BLAIR V. COMMISSIONER OF INTERNAL REVENUE, 300 U.S. 5, AT P. 10;
NEW YORK LIFE INS. CO. V. RUHLIN, 25 F.SUPP.  65, AFF'D 106 F.2D 65,
69; CERT. DEN.  309 U.S. 655. 

IN MANY OTHER CASES, DECISIONS OF COURTS LOWER THAN THE HIGHEST COURT
OF THE STATE HAVE BEEN FOLLOWED:  IN RE GILLIGAN, 152 F. 605; CERT.
DEN., 206 U.S. 563; AMERICAN OPTOMETRIC ASSN. V. RITHOLZ, 101 F.2D 883;
CERT. DEN., 307 U.S. 647; DELAWARE & HUDSON R. CORP. V. BONZIH, 105
F.2D 541; IN RE WIEGAND, 27 F.SUPP.  725; GALLAGHER V. FLORIDA EAST
COAST RY., 196 F. 1000.  CF. TIPTON V. ATCHISON, T. & S.F. RY. CO., 298
U.S. 141. 

THE THIRD CIRCUIT HAS FOLLOWED THE COURT OF CHANCERY OF NEW JERSEY
UNDER THE RULE OF THE HILT CASE IN NO LESS THAN THREE CASES:  GREIMAN
V. METROPOLITAN LIFE INS. CO., 96 F.2D 685; EX PARTE ZWILLMAN, 48 F.
78, APPEAL DISMISSED, 144 U.S. 310; RADIN V. COMMISSIONER OF INTERNAL
REVENUE, 33 F.2D 39, 40. 

THE RULINGS OF THE COURT OF CHANCERY CARRY EQUAL WEIGHT WITH THOSE OF
THE NEW JERSEY SUPREME COURT IN THE COURT OF ERRORS AND APPEALS. 
RAMSEY V. HUTCHINSON, 117 N.J.L. 222. 

SINCE IT HAS BEEN UNIFORMLY HELD THAT THE COURTS OF THE UNITED STATES
ARE COMPELLED TO OBSERVE THE DECISIONS OF THE SUPREME COURT OF NEW
JERSEY CONSTRUING THE STATUTES OF THAT STATE, AS BEING DECLARATORY OF
THE LAW OF THAT STATE (ERIE R. CO. V. HILT, 247 U.S. 97, 100; ERIE R.
CO. V. DUPLAK, 286 U.S. 440, 443; AND NORTH PHILADELPHIA TRUST CO. V.
SMITH, 13 F.2D 585, 586), IT FOLLOWS THAT THE DECISION IN THE CASE
UNDER REVIEW, WHICH, IN EFFECT, IGNORED THE DECISIONS OF THE COURT OF
CHANCERY LIKEWISE CONSTRUING A STATUTE OF THAT STATE, MUST BE BASED ON
THE VIEW THAT THE COURT OF CHANCERY IS NOT OF EQUAL RANK OR IMPORTANCE
WITH THE STATE SUPREME COURT.  SUCH REASONING IS PATENTLY ERRONEOUS. 
PENNSYLVANIA R. CO. V. NAT. DOCKS RY. CO., 54 N.J. EQ. 652; IN RE
APPOINTMENT OF VICE-CHANCELLORS, 105 N.J. EQ. 759; GREGORY V. GREGORY,
67 N.J. EQ. 7, 10-11; PHILADELPHIA & CAMDEN FERRY CO. V. JOHNSON, 97
N.J. EQ. 296, 297; RAMSEY V. HUTCHINSON, 117 N.J.L. 222; CASSATT V.
FIRST NATIONAL BANK OF WEST NEW YORK, 9 N.J. MISC. 222. 

THE JUSTICES OF THE SUPREME COURT AND THE CHANCELLOR BOTH SIT ON THE
COURT OF ERRORS AND APPEALS, BUT THE CHANCELLOR IS THE PRESIDENT OF THE
COURT OF ERRORS AND APPEALS. 

ALTHOUGH, AS STATED IN LUDLOW V. EXECUTORS OF LUDLOW, 4 N.J.L. 451,
AND IN WHITEHEAD V. GRAY, 12 N.J.L. 36, THE SUPREME COURT HAS THE
SUPERINTENDENCE OF ALL INFERIOR COURTS BOTH CIVIL AND CRIMINAL, NOWHERE
IS IT GIVEN SUPERINTENDENCE OVER THE COURT OF CHANCERY, NOR HAS IT EVER
ATTEMPTED TO ASSERT SUCH SUPERINTENDENCE. 

FEDERAL COURTS, CHARGED WITH A DUTY TO ASCERTAIN A STATE LAW, NEED
NOT GIVE GREATER WEIGHT TO DECISIONS OF A LOCAL COURT THAN OTHER COURTS
IN THE SAME STATE BUT OUTSIDE OF ITS TERRITORIAL JURISDICTION WOULD
ACCORD, AND ARE FREE TO MAKE AN INDEPENDENT DETERMINATION OF STATE LAW
IN THE SAME MANNER AND SUBJECT TO THE SAME LIMITATIONS AS SUCH OTHER
STATE COURTS.  CF. 53 HARV. LAW REV., NO. 5, P. 880.  BUT WHERE THE
JURISDICTION OF AN IMPORTANT STATE COURT, SUCH AS THE COURT OF CHANCERY
OF NEW JERSEY, IS STATE-WIDE, ITS DETERMINATION AS TO THE PREVAILING
STATE LAW SHOULD BE FOLLOWED BY FEDERAL COURTS, PARTICULARLY WHERE ITS
DECISIONS HAVE NOT BEEN CHALLENGED FOR YEARS BY ANY OTHER COURT IN THE
STATE, AND WHERE THE LEGISLATURE HAS MADE NO ATTEMPT TO MODIFY OR AMEND
THE STATUTE CONSTRUED BUT HAS RE-ENACTED IT.  SEE BALTIMORE & OHIO R.
CO. V. BAUGH, 149 U.S. 368. 

MR. RUSSELL C. MACFALL FOR RESPONDENT. 

THE NEW JERSEY STATUTE OF 1932 VALIDATED TENTATIVE TRUSTS WITH
RESPECT TO SAVINGS BANK DEPOSITS. 

THE COURT OF CHANCERY IN THATCHER V. TRENTON TRUST CO., 119 N.J. EQ.
408, AND TRAVERS V. REID, 119 N.J. EQ. 416, AND THE TRIAL COURT BELOW,
IN REFUSING TO APPLY THE 1932 STATUTE, DISREGARDED FUNDAMENTAL RULES OF
CONSTRUCTION.  NO CONSIDERATION WAS GIVEN TO THE PRESUMPTION OF THE
CONSTITUTIONALITY OF THE ACT; NOR TO THE PRESUMPTION THAT THE
LEGISLATURE DID NOT INTEND TO ADOPT A SUPERFLUOUS LAW; NOR TO THE RULE
THAT WHERE AN ACT IS UNAMBIGUOUS IN ITS TERMS THERE IS NO ROOM FOR
JUDICIAL CONSTRUCTION BECAUSE THE LANGUAGE IS PRESUMED TO EVINCE THE
LEGISLATIVE INTENT; NOR TO THE RULE THAT WHERE AN ACT IS SUSCEPTIBLE OF
TWO CONSTRUCTIONS, THAT WHICH WILL VALIDATE IT MUST BE ADOPTED. 

IF SUCH DECISIONS CARRIED THE WEIGHT AND AUTHORITY CLAIMED FOR THEM,
IT WOULD BE NECESSARY TO RECOGNIZE THAT A SITUATION EXISTS WHEREBY THE
WILL OF THE PEOPLE OF THE STATE OF NEW JERSEY, AS EXPRESSED THROUGH ITS
LEGISLATURE, MAY BE SET ASIDE SOLELY BY THE DECISION OF A TRIAL JUDGE. 

BUT THAT IS NOT THE FACT.  THE EFFECT AND VALIDITY OF THE STATUTE
WILL ULTIMATELY BE DETERMINED BY THE COURT OF ERRORS AND APPEALS OF NEW
JERSEY.  THE DECISIONS OF THE COURT OF CHANCERY DO NOT SETTLE THE LAW
OF THE STATE.  DORMAN V. WEST JERSEY TITLE & GUARANTY CO., 92 N.J.L.
487, 489; FLAGG V. JOHANSEN, 124 N.J.L. 456; MCGOLDRICK V. GREBENSTEIN,
108 N.J.L. 335; STABEL V. GERTEL, 11 N.J. MISC. 247, AFFIRMED, 111
N.J.L. 296; KICEY V. KICEY, 112 N.J. EQ. 459; GREGORY V. GREGORY, 67
N.J. EQ. 7.  CF. RAMSEY V. HUTCHINSON, 117 N.J.L. 222. 

UNTIL THE EFFECT OF THE STATUTE IS FINALLY DETERMINED BY NEW JERSEY'S
COURT OF LAST RESORT, OR AT LEAST BY AN AUTHORITATIVE APPELLATE COURT
OF THAT STATE, THE FEDERAL COURTS ARE FREE TO DETERMINE WHETHER OR NOT
THE DECISIONS OF THE COURT OF CHANCERY TRULY EXPRESS THE LOCAL LAW. 

NO ADVANTAGE EXISTS TO THE LITIGANTS BECAUSE THE FEDERAL JURISDICTION
HAS BEEN INVOKED, NOR SHOULD ANY DISADVANTAGE RESULT, AND IF IN AN
IDENTICAL ACTION IN THE STATE COURTS THOSE COURTS ARE FREE TO DISAGREE
WITH THE DECISIONS OF THE COURT OF CHANCERY, THE FEDERAL COURTS
LIKEWISE ARE FREE, AND ARE CHARGED WITH THE DUTY OF DETERMINING AND
APPLYING THE APPLICABLE LOCAL LAW. 

ERIE RAILROAD CO. V. TOMPKINS, 304 U.S. 64, AND RUHLIN V. NEW YORK
LIFE INSURANCE CO., 304 U.S. 202, LEFT UNTOUCHED THE WELL ESTABLISHED
RULE, REITERATED BY THIS COURT IN MINNESOTA EX REL. PEARSON V. PROBATE
COURT OF RAMSEY COUNTY, 309 U.S. 270, THAT THE FEDERAL COURTS ARE BOUND
BY THE DECISIONS OF THE HIGHEST COURT OF THE STATE IN MATTERS DEPENDING
UPON THE CONSTRUCTION OF STATE STATUTES OR CONSTITUTION. 

IN BLAIR V. COMMISSIONER OF INTERNAL REVENUE, 300 U.S. 5, THIS COURT
FOUND THAT THE DECISION OF THE STATE APPELLATE COURT WAS RES JUDICATA. 

IN RUSSELL V. TODD, 309 U.S. 280, THIS COURT FOLLOWED THE DECISION OF
THE APPELLATE DIVISION, AN INTERMEDIATE APPELLATE COURT, NOT BECAUSE IT
FELT BOUND BY THAT DECISION IN THE ABSENCE OF A RULING UPON THE PRECISE
QUESTION BY THE COURT OF LAST RESORT, BUT BECAUSE THE REASONING OF THE
DECISION WAS PERSUASIVE. 

THE CIRCUIT COURT OF APPEALS CORRECTLY STATED THE RULE:  THE FEDERAL
COURTS SHOULD IN ALL INSTANCES FOLLOW THE LAW OF THE STATE WITH RESPECT
TO THE CONSTRUCTION OF STATE STATUTES.  WHERE THAT LAW HAS BEEN
DETERMINED BY THE COURTS OF LAST RESORT THEIR DECISIONS ARE STARE
DECISIS, AND MUST BE FOLLOWED IRRESPECTIVE OF THE FEDERAL COURTS'
OPINION AS TO WHAT THE LAW OUGHT TO BE.  AS TO PRONOUNCEMENTS OF OTHER
STATE COURTS, HOWEVER, THE FEDERAL COURTS ARE NOT SO BOUND, BUT MAY
CONCLUDE THAT THE DECISION DOES NOT TRULY EXPRESS THE STATE LAW. 

OTHER DECISIONS CITED OR DISCUSSED WERE:  BURNS MORTGAGE CO. V.
FRIED, 292 U.S. 487; KUHN V. FAIRMONT COAL CO., 215 U.S. 349; BLACK &
WHITE TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., 276 U.S. 518, 532-536;
BRINE V. HARTFORD FIRE INS. CO., 96 U.S. 627; NEW YORK LIFE INS. CO. V.
RUHLIN, 25 F.SUPP.  65; DEFEO V. PEOPLES GAS CO., 104 N.J.L. 156;
IRVING NATIONAL BANK V. LAW, 9 F.2D 536. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

IN 1935, EDITH M. PECK CAUSED THE TITLE OF A SAVINGS BANK ACCOUNT
STANDING IN HER NAME TO BE TRANSFERRED ON THE RECORDS OF THE BANK TO
"EDITH M. PECK, IN TRUST FOR ETHEL ADELAIDE FIELD."  MISS PECK RETAINED
EXCLUSIVE CONTROL OVER THE ACCOUNT, WITH SOLE RIGHT OF WITHDRAWAL AND
RIGHT OF REVOCATION, AND GAVE NO FURTHER NOTICE OF THE EXISTENCE OF A
TRUST. 

THIS SUIT WAS BROUGHT BY ETHEL ADELAIDE FIELD AGAINST THE BANK AND
THE EXECUTORS OF MISS PECK TO OBTAIN A DECREE THAT THE CREDIT BALANCE
OF THE ACCOUNT BELONGED TO THE COMPLAINANT.  THE EXECUTORS DENIED THE
VALIDITY OF THE TRUST AND CLAIMED TITLE.  THE DISTRICT COURT FOUND IN
FAVOR OF THE EXECUTORS UPON THE GROUND THAT UNDER THE LAW OF NEW JERSEY
THERE WAS NO TRUST AND NO VALID GIFT.  THE CIRCUIT COURT OF APPEALS
REVERSED THE JUDGMENT, HOLDING THAT UNDER A STATE STATUTE THE
COMPLAINANT WAS ENTITLED TO RECOVER.  IN SO RULING, THE COURT DECLINED
TO FOLLOW CONTRARY DECISIONS OF THE CHANCERY COURT OF NEW JERSEY.  108
F.2D 521.  IN VIEW OF THE IMPORTANCE OF THE QUESTION THUS PRESENTED, WE
GRANTED CERTIORARI.  309 U.S. 652. 

IN 1932, THE LEGISLATURE OF NEW JERSEY PASSED FOUR STATUTES, IN
SIMILAR TERMS AND APPROVED ON THE SAME DATE, DEALING WITH TRUST
DEPOSITS IN BANKS.  THE TEXT OF ONE OF THESE PROVISIONS IS SET FORTH IN
THE MARGIN.  FN1  PRIOR TO THESE STATUTES, IT HAD BEEN THE LAW OF NEW
JERSEY THAT A MERE SAVINGS BANK DEPOSIT MADE BY A DECEDENT IN HIS OWN
NAME AS TRUSTEE FOR ANOTHER, OVER WHICH THE DECEDENT EXERCISED COMPLETE
CONTROL DURING HIS LIFE, WAS INSUFFICIENT TO ESTABLISH A GIFT INTER
VIVOS OR TO CREATE A TRUST AS AGAINST THE DECEDENT'S LEGAL
REPRESENTATIVES.  NICKLAS V. PARKER, 69 N.J. EQ. 743, AFFIRMED, 71 N.J.
EQ. 777; 61 A. 267; JOHNSON V. SAVINGS INVESTMENT & TRUST CO., 107 N.J.
EQ. 547; 153 A. 382, AFFIRMED, 110 N.J. EQ. 466; 160 A. 371. 

THE STATUTES OF 1932 CAME BEFORE THE CHANCERY COURT OF NEW JERSEY IN
1936, IN TWO CASES DECIDED INDEPENDENTLY BY TWO VICE-CHANCELLORS,
THATCHER V. TRENTON TRUST CO., 119 N.J. EQ. 408; 182 A. 912, AND
TRAVERS V. REID, 119 N.J. EQ. 416; 182 A. 908.  IN THE THATCHER CASE IT
APPEARED THAT THE DECEDENT, AT THE TIME OF HER DEATH IN 1934, HAD TWO
BANK BALANCES STANDING TO HER CREDIT "IN TRUST FOR CLIFFORD THATCHER,"
THE COMPLAINANT.  THE BILL WAS DISMISSED.  THE COURT FOUND THAT THERE
WERE NO FACTS, BEYOND THE MERE OPENING OF THE ACCOUNT IN THAT MANNER,
"IN ANY WAY TENDING TO PROVE THE DECLARATION OF A TRUST."  THE COURT
EXAMINED THE LEGISLATION OF 1932, WHICH IT WAS ARGUED HAD CHANGED THE
LAW OF THE STATE, AND AFTER CONSIDERING POSSIBLE PURPOSES OF THE
LEGISLATURE AND ANALYZING THE LANGUAGE EMPLOYED, WHICH WAS DEEMED TO BE
"CONFUSED" AND "DIFFICULT TO COMPREHEND," THE COURT DECIDED THAT THE
LEGISLATION WAS INOPERATIVE TO CHANGE THE LAW APPLICABLE TO THE FACTS
BEFORE THE COURT.  IN THE TRAVERS CASE, THE DECEDENT HAD CHANGED HIS
BANK ACCOUNT TO HIS NAME "IN TRUST FOR JOSEPH JENNINGS," A MINOR.  IN A
SUIT BY THE DECEDENT'S EXECUTRIX TO RECOVER THE MONEY, A MOTION BY THE
MINOR'S GUARDIAN TO STRIKE THE BILL FOR WANT OF EQUITY AND UPON THE
GROUND THAT THE FUND WAS THE PROPERTY OF THE WARD OR HELD IN TRUST FOR
HIM, WAS DENIED.  AFTER STATING THE LAW AS IT STOOD BEFORE THE STATUTES
OF 1932, THE COURT CONCLUDED THAT THEY HAD NOT BEEN EFFECTIVE TO ALTER
THE PREVIOUS LEGAL REQUIREMENTS OF A GIFT INTER VIVOS OR A VALID
TRUST.  THESE CASES WERE NOT REVIEWED BY THE COURT OF ERRORS AND
APPEALS OF NEW JERSEY AND, SO FAR AS APPEARS, THAT COURT HAS NOT
EXPRESSED AN OPINION UPON THE CONSTRUCTION AND EFFECT OF THE STATUTORY
PROVISIONS.  FN2 

THE CIRCUIT COURT OF APPEALS FOUND IT IMPOSSIBLE TO DISTINGUISH THE
FACTS IN THE TWO CHANCERY CASES FROM THOSE SHOWN HERE.  THE COURT
RECOGNIZED ITS DUTY TO FOLLOW THE LAW OF THE STATE AND SAID THAT WHERE
THAT LAW HAD BEEN DETERMINED BY THE STATE COURT OF LAST RESORT ITS
DECISION MUST BE FOLLOWED IRRESPECTIVE OF THE FEDERAL COURT'S OPINION
OF WHAT THE LAW OUGHT TO BE.  BUT THE MAJORITY OF THE CIRCUIT COURT OF
APPEALS TOOK THE VIEW THAT IT WAS NOT SO BOUND "BY THE PRONOUNCEMENTS
OF OTHER STATE COURTS" BUT MIGHT CONCLUDE THAT "THE DECISION DOES NOT
TRULY EXPRESS THE STATE LAW."  THE COURT HELD THAT THE STATUTE OF 1932
WAS "CLEARLY CONSTITUTIONAL AND UNAMBIGUOUS" AND THAT "CONTRARY
DECISIONS" OF THE CHANCERY COURT OF NEW JERSEY WERE NOT BINDING. 
ACCORDINGLY, THE JUDGMENT OF THE DISTRICT COURT WAS REVERSED.    WE
THINK THAT THIS RULING WAS ERRONEOUS.  THE HIGHEST STATE COURT IS THE
FINAL AUTHORITY ON STATE LAW (BEALS V. HALE, 4 HOW.  37, 54; ERIE
RAILROAD CO. V. TOMPKINS, 304 U.S. 64, 78), BUT IT IS STILL THE DUTY OF
THE FEDERAL COURTS, WHERE THE STATE LAW SUPPLIES THE RULE OF DECISION,
FN3 TO ASCERTAIN AND APPLY THAT LAW EVEN THOUGH IT HAS NOT BEEN
EXPOUNDED BY THE HIGHEST COURT OF THE STATE.  SEE RUHLIN V. NEW YORK
LIFE INSURANCE CO., 304 U.S. 202, 209.  AN INTERMEDIATE STATE COURT IN
DECLARING AND APPLYING THE STATE LAW IS ACTING AS AN ORGAN OF THE STATE
AND ITS DETERMINATION, IN THE ABSENCE OF MORE CONVINCING EVIDENCE OF
WHAT THE STATE LAW IS, SHOULD BE FOLLOWED BY A FEDERAL COURT IN
DECIDING A STATE QUESTION.  WE HAVE DECLARED THAT PRINCIPLE IN WEST V.
AMERICAN TELEPHONE & TELEGRAPH CO., POST, P. 223.  IT IS TRUE THAT IN
THAT CASE AN INTERMEDIATE APPELLATE COURT OF THE STATE HAD DETERMINED
THE IMMEDIATE QUESTION AS BETWEEN THE SAME PARTIES IN A PRIOR SUIT, AND
THE HIGHEST STATE COURT HAD REFUSED TO REVIEW THE LOWER COURT'S
DECISION, BUT WE SET FORTH THE BROADER PRINCIPLE AS APPLICABLE TO THE
DECISION OF AN INTERMEDIATE COURT, IN THE ABSENCE OF A DECISION BY THE
HIGHEST COURT, WHETHER THE QUESTION IS ONE OF STATUTE OR COMMON LAW. 

HERE, THE QUESTION WAS AS TO THE CONSTRUCTION AND EFFECT OF A STATE
STATUTE.  THE FEDERAL COURT WAS NOT AT LIBERTY TO UNDERTAKE THE
DETERMINATION OF THAT QUESTION ON ITS OWN REASONING INDEPENDENT OF THE
CONSTRUCTION AND EFFECT WHICH THE STATE ITSELF ACCORDED TO ITS
STATUTE.  THAT CONSTRUCTION AND EFFECT ARE SHOWN BY THE JUDICIAL ACTION
THROUGH WHICH THE STATE INTERPRETS AND APPLIES ITS LEGISLATION.  THAT
JUDICIAL ACTION IN THIS INSTANCE HAS BEEN TAKEN BY THE CHANCERY COURT
OF NEW JERSEY AND WE HAVE NO OTHER EVIDENCE OF THE STATE LAW IN THIS
RELATION.  EQUITY DECREES IN NEW JERSEY ARE ENTERED BY THE CHANCELLOR,
WHO CONSTITUTES THE COURT OF CHANCERY,  FN4 UPON THE ADVICE OF THE VICE
CHANCELLORS,  FN5  AND THESE DECREES, LIKE THE JUDGMENTS OF THE SUPREME
COURT OF NEW JERSEY, ARE SUBJECT TO REVIEW ONLY BY THE COURT OF ERRORS
AND APPEALS.  FN6 WE HAVE HELD THAT THE DECISION OF THE SUPREME COURT
UPON THE CONSTRUCTION OF A STATE STATUTE SHOULD BE FOLLOWED IN THE
ABSENCE OF AN EXPRESSION OF A COUNTERVAILING VIEW BY THE STATE'S
HIGHEST COURT (ERIE RAILROAD CO. V. HILT, 247 U.S. 97, 100, 101; ERIE
RAILROAD CO. V. DUPLAK, 286 U.S. 440, 444), AND WE THINK THAT THE
DECISIONS OF THE COURT OF CHANCERY ARE ENTITLED TO LIKE RESPECT AS
ANNOUNCING THE LAW OF THE STATE. 

WHILE, OF COURSE, THE DECISIONS OF THE COURT OF CHANCERY ARE NOT
BINDING ON THE COURT OF ERRORS AND APPEALS, A UNIFORM RULING EITHER BY
THE COURT OF CHANCERY OR BY THE SUPREME COURT OVER A COURSE OF YEARS
WILL NOT BE SET ASIDE BY THE HIGHEST COURT "EXCEPT FOR COGENT AND
IMPORTANT REASONS."  RAMSEY V. HUTCHINSON, 117 N.J.L. 222, 223; 187 A.
650.  IT APPEARS THAT ORDINARILY THE DECISIONS OF THE COURT OF
CHANCERY, IF THEY HAVE NOT BEEN DISAPPROVED, ARE TREATED AS BINDING IN
LATER CASES IN CHANCERY (PHILADELPHIA & CAMDEN FERRY CO. V. JOHNSON, 94
N.J. EQ., 296, 297; 121 A. 900), BUT THERE IS ALWAYS, AS RESPONDENT
URGES, THE POSSIBILITY THAT A PARTICULAR DECISION OF THE COURT OF
CHANCERY WILL NOT BE FOLLOWED BY THE SUPREME COURT (SEE FLAGG V.
JOHANSEN, 124 N.J.L. 456, 461; 12 A.2D 374) OR EVEN BY THE COURT OF
CHANCERY ITSELF.  SEE KICEY V. KICEY, 112 N.J. EQ. 459, 461; 164 A.
684.  IT IS THE FUNCTION OF THE COURT OF LAST RESORT TO RESOLVE SUCH
CONFLICTS AS MAY BE CREATED BY DECISIONS OF THE LOWER COURTS, AND
EXCEPT IN RARE INSTANCES THAT FUNCTION IS PERFORMED AND THE LAW IS
SETTLED ACCORDINGLY.  HERE, HOWEVER, THERE IS NO CONFLICT OF DECISION. 
WHETHER THERE EVER WILL BE, OR THE COURT OF ERRORS AND APPEALS WILL
DISAPPROVE THE RULINGS IN THE THATCHER AND TRAVERS CASES, IS MERELY A
MATTER OF CONJECTURE.  SEE WEST V. AMERICAN TELEPHONE & TELEGRAPH CO.,
SUPRA.  AT THE PRESENT TIME THE THATCHER AND TRAVERS CASES STAND AS THE
ONLY EXPOSITION OF THE LAW OF THE STATE WITH RESPECT TO THE
CONSTRUCTION AND EFFECT OF THE STATUTES OF 1932, AND THE CIRCUIT COURT
OF APPEALS WAS NOT AT LIBERTY TO REJECT THESE DECISIONS MERELY BECAUSE
IT DID NOT AGREE WITH THEIR REASONING. 

THE QUESTION HAS PRACTICAL ASPECTS OF GREAT IMPORTANCE IN THE PROPER
ADMINISTRATION OF JUSTICE IN THE FEDERAL COURTS.  IT IS INADMISSIBLE
THAT THERE SHOULD BE ONE RULE OF STATE LAW FOR LITIGANTS IN THE STATE
COURTS AND ANOTHER RULE FOR LITIGANTS WHO BRING THE SAME QUESTION
BEFORE THE FEDERAL COURTS OWING TO THE CIRCUMSTANCE OF DIVERSITY OF
CITIZENSHIP.  IN THE ABSENCE OF ANY CONTRARY SHOWING, THE RULE OF THE
THATCHER AND TRAVERS CASES APPEARS TO BE THE ONE WHICH WOULD BE APPLIED
IN LITIGATION IN THE STATE COURT, AND WHETHER BELIEVED TO BE SOUND OR
UNSOUND, IT SHOULD HAVE BEEN FOLLOWED BY THE CIRCUIT COURT OF APPEALS. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  CHAPTER 40, NEW JERSEY SESSION LAWS OF 1932, SEC. 1, IS AS
FOLLOWS: 

"1.  WHENEVER ANY DEPOSIT SHALL BE MADE WITH ANY SAVINGS BANK, TRUST
COMPANY OR BANK BY ANY PERSON IN TRUST FOR ANOTHER, AND NO OTHER OR
FURTHER NOTICE OF THE EXISTENCE AND TERMS OF A LEGAL AND VALID TRUST
SHALL HAVE BEEN GIVEN IN WRITING TO THE SAVINGS BANK, TRUST COMPANY OR
BANK, IN THE EVENT OF THE DEATH OF THE TRUSTEE, THE SAME OR ANY PART
THEREOF, TOGETHER WITH THE DIVIDENDS OR INTEREST THEREON, SHALL BE PAID
TO THE PERSON IN TRUST FOR WHOM THE SAID DEPOSIT WAS MADE, OR TO HIS OR
HER LEGAL REPRESENTATIVES AND THE LEGAL REPRESENTATIVES OF THE DECEASED
TRUSTEE SHALL NOT BE ENTITLED TO THE FUNDS SO DEPOSITED NOR TO THE
DIVIDENDS OR INTEREST THEREON NOTWITHSTANDING THAT THE FUNDS SO
DEPOSITED MAY HAVE BEEN THE PROPERTY OF THE TRUSTEE; PROVIDED, THAT THE
PERSON FOR WHOM THE DEPOSIT WAS MADE, IF A MINOR, SHALL NOT DRAW THE
SAME DURING HIS OR HER MINORITY WITHOUT THE WRITTEN CONSENT OF THE
LEGAL REPRESENTATIVES OF SAID TRUSTEE."  SEE REVISED STATUTES OF NEW
JERSEY, 1937, 17; 9-4. 

FN2  IN CUTTS V. NAJDROWSKI, 123 N.J. EQ. 481; 198 A. 885(1938), THE
COURT OF ERRORS AND APPEALS HELD THAT THE VALIDITY OF A TRUST OF CHOSES
IN ACTION CREATED BY A TRANSACTION INTER VIVOS WAS DETERMINED BY THE
LAW OF THE PLACE WHERE THE TRANSACTION OCCURRED, IN THAT CASE NEW
YORK.  IN TRUST COMPANY OF NEW JERSEY V. FARAWELL, 127 N.J. EQ. 45; 11
A.2D 98(1940), THE COURT OF ERRORS AND APPEALS HELD THAT, WHERE THE
DECEDENT HAD MADE A DEPOSIT IN HER NAME IN TRUST FOR HER DAUGHTERS, AND
THE SAVINGS BANK BOOK WAS THEREAFTER IN THE POSSESSION OF THE DAUGHTERS
AND WITHDRAWALS WERE MADE UPON THE SIGNATURES OF THE MOTHER AND THE
DAUGHTERS AND WERE USED FOR MAINTAINING PROPERTIES DEVISED TO THE
DAUGHTERS BY THE MOTHER SHORTLY AFTER THE ACCOUNT WAS OPENED, THERE WAS
SUFFICIENT EVIDENCE TO SHOW A PRESENTLY EFFECTIVE TRUST.  THE COURT
SAID THAT SUCH A TRUST DEPENDS ESSENTIALLY UPON THE SAME PRINCIPLES
"THAT ACTIVATE A GIFT INTER VIVOS, COMPRISING DONATIVE INTENT, DELIVERY
OF THE SUBJECT-MATTER TO THE EXTENT THAT DELIVERY IS POSSIBLE OR CAN BE
INDICATED, AND THE ABDICATION BY THE DONOR OF DOMINION OVER THE SUBJECT
MATTER."  ID., P. 48.  IN THESE CASES, THE COURT DID NOT REFER TO THE
STATUTES OF 1932 OR TO THE CHANCERY DECISIONS CITED IN THE ABOVE TEXT. 

FN3  JUDICIARY ACT OF 1789, SEC. 34; R.S. 721, 28 U.S.C. 725. 

FN4  N.J. CONSTITUTION, ART. VI, SEC. 4. 

FN5  SEE GREGORY V. GREGORY, 67 N.J. EQ. 7, 10, 11; 58 A. 287; IN RE
APPOINTMENT OF VICE-CHANCELLORS, 105 N.J. EQ. 759; 148 A. 570. 

FN6  REVISED STATUTES OF NEW JERSEY, 2:  27-350, 2:  29-117. 
..END :














SIX COMPANIES V. HIGHWAY DIST., 311 U.S. 180 


NO. 267.  ARGUED NOVEMBER 13, 14, 1940.  - DECIDED DECEMBER 9, 1940.  -
110 F.2D 620, REVERSED. 


1.  AN ANNOUNCEMENT OF STATE LAW BY AN INTERMEDIATE STATE APPELLATE
COURT, IN THE ABSENCE OF A CONTRARY RULING BY THE HIGHEST STATE COURT
OR OF OTHER CONVINCING EVIDENCE THAT THE STATE LAW IS OTHERWISE, SHOULD
BE FOLLOWED BY FEDERAL COURTS.  P. 188. 

2.  AN INTERMEDIATE APPELLATE COURT OF CALIFORNIA HAD RULED THAT, IN
THAT STATE, A STIPULATION IN A CONSTRUCTION CONTRACT FOR LIQUIDATED
DAMAGES IN CASE OF DELAY IN COMPLETION WAS INAPPLICABLE AFTER
ABANDONMENT OF THE WORK.  THIS, APPARENTLY, HAD NOT BEEN DISAPPROVED,
AND THERE WAS NO CONVINCING EVIDENCE THAT THE LAW OF THE STATE WAS
OTHERWISE.  HELD, THAT THE RULING SHOULD HAVE BEEN FOLLOWED BY THE
FEDERAL COURTS IN A CASE INVOLVING THE SAME QUESTIONS, IN CALIFORNIA. 
P. 188. 

SIX COMPANIES OF CALIFORNIA ET AL. V. JOINT HIGHWAY DISTRICT NO. 13 OF
CALIFORNIA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 631, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
DAMAGES AWARDED ON A CROSS-COMPLAINT, AGAINST A BUILDING CONTRACTOR FOR
DELAY IN COMPLETING A BUILDING.  JURISDICTION WAS BASED ON DIVERSITY OF
CITIZENSHIP. 

MR. PAUL S. MARRIN, WITH WHOM MESSRS.  MAX THELEN, DELANCEY C. SMITH,
AND JEWEL ALEXANDER WERE ON THE BRIEF, FOR PETITIONERS. 

THE CIRCUIT COURT OF APPEALS SHOULD HAVE FOLLOWED THE DECISION OF THE
DISTRICT COURT OF APPEAL OF CALIFORNIA IN SINNOTT V. SCHUMACHER, 45
CAL. APP. 46. 

THE QUESTION INVOLVED IS:  WHAT IS THE LAW OF CALIFORNIA?  UNDER THE
REASONING OF THE ERIE RAILROAD CO. CASE, 304 U.S. 64, IT MAKES LITTLE
DIFFERENCE WHAT STATE COURT HAS DECLARED THE LAW SO LONG AS IT IS THE
RULE OF DECISION IN THE STATE.  IN THE ERIE CASE THIS COURT REFERRED TO
THE LAW OF THE STATE AS DECLARED BY ITS HIGHEST COURT IN A DECISION,
BUT IT DID NOT SAY THAT THE LAW OF THE STATE MIGHT NOT BE ESTABLISHED
BY THE DECISION OF AN INTERMEDIATE APPELLATE COURT.  AND WHERE THE
DECISION OF SUCH COURT DOES IN FACT ANNOUNCE A RULE OF LAW WHICH OTHER
STATE COURTS ARE BOUND TO FOLLOW, IT ESTABLISHES THE LAW OF THE STATE
EVEN THOUGH ANOTHER COURT OF THE STATE HAS THE POWER TO OVERRULE ITS
DECISION. 

HAD THIS CASE BEEN TRIED IN ANY SUPERIOR (TRIAL) COURT OF CALIFORNIA,
SUCH COURT WOULD HAVE BEEN BOUND BY SINNOTT V. SCHUMACHER, AND THE
RESULT WOULD HAVE BEEN THE OPPOSITE OF THAT ANNOUNCED BY THE CIRCUIT
COURT OF APPEALS.  IF, THEREFORE, THE STATE LAW IS TO BE DETERMINED
JUST AS IT WOULD BE IN A CASE TRIED IN THE STATE COURTS, WE CAN NOT
ESCAPE THE CONCLUSION THAT THE DECISIONS OF THE CALIFORNIA DISTRICT
COURTS OF APPEAL ARE BINDING ON THE FEDERAL COURTS. 

THE POWER OF THE SUPREME COURT OF CALIFORNIA TO OVERRULE DECISIONS OF
THE DISTRICT COURTS OF APPEAL HAS LITTLE BEARING ON THE SOLUTION OF THE
PROBLEM.  THE SUPREME COURT HAS THE POWER TO OVERRULE ITS OWN
DECISIONS, BUT ITS PRIOR DECISIONS, AS WELL AS PRIOR DECISIONS OF THE
DISTRICT COURTS OF APPEAL, ARE THE LAW OF THE STATE UNLESS AND UNTIL
OVERRULED. 

THE DECISION OF ONE DISTRICT COURT OF APPEAL IN CALIFORNIA BINDS THE
OTHERS, PARTICULARLY WHEN A PETITION FOR HEARING BY THE SUPREME COURT
OF THE EARLIER CASE HAS BEEN DENIED.  SKAGGS V. TAYLOR, 77 CAL. APP.
519; CLOVER V. JACKSON, 81 CAL. APP. 55; BRIDGES V. FISK, 53 CAL. APP.
117, 122; PEOPLE V. WHITAKER, 68 CAL. APP. 7, 11; MASONIC MINES ASSN.
V. SUPERIOR COURT, 136 CAL. APP. 298, 300.  DISTINGUISHING PEOPLE V.
BRUNWIN, 2 CAL. APP.2D 287. 

DECISIONS OF THE DISTRICT COURTS OF APPEAL ARE OF STATEWIDE SCOPE AND
APPLICATION.  A RULE OF LAW ANNOUNCED IN ONE DISTRICT WILL BE FOLLOWED
IN ALL OTHERS AND MUST BE FOLLOWED BY ALL TRIAL COURTS. 

THE DECISION BELOW PERPETUATES THE EVILS CONDEMNED IN ERIE RAILROAD
CO. V. TOMPKINS, 304 U.S. 64.  THERE ARE MANY PROPOSITIONS OF STATE LAW
IN CALIFORNIA WHICH HAVE NEVER BEEN DECIDED BY ITS SUPREME COURT, BUT
WHICH HAVE BEEN DECIDED BY A DISTRICT COURT OF APPEAL ON WHICH THE
SUPREME COURT HAS DENIED A HEARING.  THESE DECISIONS OF THE DISTRICT
COURTS OF APPEAL ARE ACCEPTED AS THE LAW THROUGHOUT THE STATE AND THE
RULES ANNOUNCED BY THEM ARE APPLIED IN LITIGATION IN ITS COURTS.  MANY
OF THE RULES OF LAW ANNOUNCED BY THE DISTRICT COURTS OF APPEAL OF THE
STATE HAVE NEVER BEEN DECIDED BY ITS SUPREME COURT AND PROBABLY NEVER
WILL BE, BECAUSE, UNDER THE ENLARGED JURISDICTION CONFERRED UPON THE
DISTRICT COURTS OF APPEAL BY THE 1928 AMENDMENT TO ART. VI, SEC. 4, OF
THE CALIFORNIA CONSTITUTION, MOST APPEALS ARE TAKEN DIRECTLY TO THESE
COURTS, AND IT IS UNLIKELY THAT THE SUPREME COURT WOULD ORDER ANY CASE
IN WHICH IT BELIEVES THE DISTRICT COURTS OF APPEAL HAVE PROPERLY
APPLIED THE LAW TO BE TRANSFERRED TO IT FOR HEARING.  WE EARNESTLY
CONTEND THAT THE DECISIONS OF THESE COURTS ARE THE LAW OF THE STATE
WHEN THERE IS NO DECISION OF THE SUPREME COURT WHICH CONFLICTS WITH
THEM.  IF THE FEDERAL COURTS REFUSE TO FOLLOW THEM WE MAY HAVE, FOR
LONG AND INDEFINITE PERIODS OF TIME, ONE RULE IN THE FEDERAL COURTS AND
ANOTHER IN THE STATE COURTS, A CONDITION SUBSTANTIALLY THE SAME AS THAT
BROUGHT ABOUT BY THE RULE ANNOUNCED IN SWIFT V. TYSON, 16 PET. 1. 

THE JURISDICTION OF THE DISTRICT COURTS OF APPEAL IS STATE-WIDE. 
THEY HAVE JURISDICTION OF APPEALS FROM ANY SUPERIOR COURT IN THE STATE
AND THEIR JURISDICTION IS NOT LIMITED TO HEARING APPEALS FROM SUPERIOR
COURTS IN THEIR OWN DISTRICTS. 

THE QUESTION OF THE POWER OF THE FEDERAL COURTS TO DISREGARD
DECISIONS OF LOWER STATE COURTS WAS NOT INVOLVED IN WICHITA ROYALTY CO.
V. CITY NATIONAL BANK, 306 U.S. 103. 

MESSRS. ARCHIBALD B. TINNING AND THEODORE P. WITTSCHEN FOR
RESPONDENT. 

DENIAL BY THE STATE SUPREME COURT OF A PETITION FOR HEARING THEREIN
AFTER DECISION BY A DISTRICT COURT OF APPEAL DOES NOT MEAN APPROVAL OF
THE OPINION AND DECISION OF THE LOWER COURT.  PEOPLE V. DAVIS, 147 CAL.
346, 350; BOHN V. BOHN, 164 CAL. 532, 537; IN RE STEVENS, 197 CAL. 408,
423; PEOPLE V. RABE, 202 CAL. 409, 418; SENEY V. PICKWICK STAGES, 206
CAL. 389, 391; SHELTON V. LOS ANGELES, 206 CAL. 544, 550; WESTERN
LITHOGRAPH CO. V. STATE BOARD OF EQUALIZATION, 11 CAL.2D 156, 167. 

THE CALIFORNIA DISTRICT COURTS OF APPEAL HAVE HELD, AND THE
CALIFORNIA SUPREME COURT RECOGNIZES, THAT THE DECISION OF A DISTRICT
COURT OF APPEAL IN ONE DISTRICT IS NOT BINDING ON ANOTHER.  DANLEY V.
SUPERIOR COURT, 64 CAL. APP. 594, 599; MCMILLAN V. GREER, 85 CAL. APP.
558, 563; STONE V. SAN FRANCISCO, 27 CAL. APP.2D 34; RAYNOR V. CITY OF
ARCATA, 11 CAL.2D 113, 120. 

THAT BEING SO, THEN CLEARLY NEITHER THE CIRCUIT COURT OF APPEALS NOR
THIS COURT IS SO BOUND. 

THE CALIFORNIA DISTRICT COURTS OF APPEAL ARE COURTS OF LIMITED AND
NOT STATE-WIDE JURISDICTION.  BUT EVEN IF JURISDICTION WERE STATE-WIDE,
IN VIEW OF THE EXPRESS LIMITATIONS WHICH HAVE BEEN PLACED UPON THEIR
DECISIONS BY THE SUPREME COURT OF THE STATE, THEIR DECISIONS, EVEN WHEN
THE SUPREME COURT REFUSES A HEARING, ARE NOT THOSE OF THE HIGHEST COURT
OF THE STATE, WHICH THE FEDERAL COURTS ARE REQUIRED TO FOLLOW. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

SIX COMPANIES OF CALIFORNIA, A CONTRACTOR, BROUGHT THIS SUIT AGAINST
RESPONDENT, JOINT HIGHWAY DISTRICT NO. 13, TO RECOVER THE REASONABLE
VALUE OF MATERIALS AND LABOR FURNISHED UNDER A CONTRACT.  THE
CONTRACTOR HAD UNDERTAKEN TO RESCIND FOR ALLEGED BREACH BY RESPONDENT
AND HAD STOPPED WORK.  RESPONDENT ANSWERED, ALLEGING WRONGFUL
ABANDONMENT OF THE CONTRACT AND BY CROSS-COMPLAINT SOUGHT DAMAGES
AGAINST THE CONTRACTOR AND ITS SURETIES. 

THERE WAS A CLAUSE IN THE CONTRACT FOR LIQUIDATED DAMAGES IN THE
AMOUNT OF $500 A DAY IN CASE OF DELAY IN COMPLETION.  FN1  THE DISTRICT
COURT FOUND AGAINST THE CONTRACTOR AND ITS SURETIES AND ON THE CROSS
COMPLAINT AWARDED DAMAGES WHICH INCLUDED $142,000 AS LIQUIDATED DAMAGES
FOR DELAY.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT.  110
F.2D 620. 

PETITIONERS CONTENDED THAT UNDER THE LAW OF CALIFORNIA THE CLAUSE
PROVIDING FOR LIQUIDATED DAMAGES DID NOT APPLY TO DELAY WHICH OCCURRED
AFTER THE ABANDONMENT OF THE WORK BY THE CONTRACTOR.  THIS CONTENTION
WAS OVERRULED.  THE CIRCUIT COURT OF APPEALS EXPRESSLY RECOGNIZED THAT
ITS DECISION IN THAT RESPECT WAS CONTRARY TO THE DECISION OF THE
DISTRICT COURT OF APPEAL IN CALIFORNIA IN THE CASE OF SINNOTT V.
SCHUMACHER, 45 CAL. APP. 46; 187 P. 105.  BUT THE CIRCUIT COURT OF
APPEALS THOUGHT THAT DECISION WRONG AND REFUSED TO FOLLOW IT.  WE
GRANTED CERTIORARI LIMITED TO THE QUESTION WHETHER THERE WAS ERROR IN
THAT RULING.  OCTOBER 14, 1940. 

IN SINNOTT V. SCHUMACHER, SUPRA, THE SUIT WAS BROUGHT TO RECOVER THE
VALUE OF LABOR AND MATERIALS FURNISHED UNDER A BUILDING CONTRACT. 
AFTER PART PERFORMANCE THE CONTRACTOR GAVE NOTICE OF RESCISSION AND
ABANDONED WORK BECAUSE OF FAILURE TO RECEIVE THE FIRST INSTALLMENT OF
THE AGREED PAYMENT.  DEFENDANTS DENIED THAT THE INSTALLMENT WAS DUE AND
FILED A CROSS-COMPLAINT AGAINST THE CONTRACTOR AND HIS SURETY ASKING
DAMAGES BECAUSE OF THE ABANDONMENT OF THE WORK.  THE TRIAL COURT FOUND
AGAINST THE PLAINTIFF ON HIS COMPLAINT AND IN FAVOR OF THE DEFENDANTS
ON THEIR CROSS-COMPLAINT, AND ENTERED JUDGMENT FOR DAMAGES.  THE
DISTRICT COURT OF APPEAL AFFIRMED THE JUDGMENT.  THE SUPREME COURT OF
THE STATE DENIED A PETITION FOR HEARING IN THAT COURT. 

ON THE APPEAL TO THE DISTRICT COURT OF APPEAL, THE PLAINTIFF
APPELLANT CONTENDED THAT THE TRIAL COURT ERRED AS TO THE AMOUNT OF THE
DAMAGES AWARDED, BASING HIS CONTENTION UPON THE CLAUSE IN THE CONTRACT
WHICH PROVIDED FOR LIQUIDATED DAMAGES IN A STIPULATED AMOUNT PER DAY IN
CASE OF DELAY IN COMPLETION.  FN2  THE DISTRICT COURT OF APPEAL HELD
THAT THE CLAUSE HAD NO APPLICATION TO A CASE WHERE THE CONTRACT HAD
BEEN ABANDONED WITHOUT SUFFICIENT CAUSE.  THE COURT SAID: 

"AS TO THE APPELLANTS' CONTENTION THAT THE COURT WAS IN ERROR IN ITS
FINDING AND CONCLUSION AS TO THE AMOUNT OF DAMAGES SUSTAINED BY THE
DEFENDANTS AND CROSS-COMPLAINANTS BY REASON OF THE PLAINTIFF'S
UNJUSTIFIED ABANDONMENT OF WORK UPON SAID BUILDING, AND HIS FAILURE,
NEGLECT, AND REFUSAL TO COMPLETE THE SAME, IT MAY BE STATED THAT THIS
CONTENTION IS BASED UPON THE CLAUSE IN THE CONTRACT WHICH RELATES TO
THE MATTER OF DELAY IN THE TIME OF COMPLETION OF SAID BUILDING AND
WHICH PURPORTS TO FIX A PENALTY OF FIFTY DOLLARS PER DAY FOR SUCH
DELAY; BUT THIS PROVISION OF THE CONTRACT HAS NO APPLICATION TO A
CONDITION WHEREIN THE CONTRACTOR IS SHOWN TO HAVE ABANDONED HIS
CONTRACT WITHOUT SUFFICIENT CAUSE, IN WHICH CASE THE RIGHT OF THE
DEFENDANTS TO DAMAGES AS A RESULT OF THE PLAINTIFF'S BREACH OF SAID
CONTRACT COULD NOT BE AFFECTED OR LIMITED BY SAID PROVISION OF THE
CONTRACT FOR A PENALTY FOR DELAY IN THE COMPLETION OF THE STRUCTURE
BEYOND THE STIPULATED TIME FOR SUCH COMPLETION."  FN3 

RESPONDENT URGES THAT WHAT WAS SAID BY THE DISTRICT COURT OF APPEAL
IN THE SINNOTT CASE WITH RESPECT TO THE LIQUIDATED DAMAGE CLAUSE WAS A
MERE DICTUM.  WE DO NOT SO REGARD IT.  THIS PART OF THE OPINION OF THE
COURT WAS ITS ANSWER TO THE APPELLANTS' INSISTENCE THAT THE JUDGMENT ON
APPEAL WAS ERRONEOUS BECAUSE THE LIQUIDATED DAMAGE CLAUSE HAD BEEN
DISREGARDED AND DAMAGES HAD BEEN AWARDED IN EXCESS OF THE AMOUNT FOR
WHICH THE CONTRACT PROVIDED.  WHAT THE COURT SAID AS TO THIS WAS A
STATEMENT OF THE GROUND OF ITS DECISION.  IT WAS A STATEMENT OF THE LAW
OF CALIFORNIA AS APPLIED TO THE FACTS BEFORE THE COURT.  IT IS SAID
THAT THERE IS A DIFFERENCE BETWEEN THE TWO CASES.  THAT DIFFERENCE
APPEARS TO BE THAT IN THE INSTANT CASE THE OWNER IS SEEKING TO APPLY
THE LIQUIDATED DAMAGE CLAUSE IN ORDER TO RECOVER FROM THE CONTRACTOR,
WHILE IN THE SINNOTT CASE THE CONTRACTOR WAS SEEKING TO LIMIT THE
DAMAGE RECOVERABLE AGAINST HIM TO THE AMOUNT AGREED UPON.  BUT, SO FAR
AS THE QUESTION CONCERNS THE APPLICABILITY OF THE LIQUIDATED DAMAGE
CLAUSE, THE DIFFERENCE WOULD NOT SEEM TO BE MATERIAL, AS BY THE TERMS
OF THE CLAUSE IN EACH CASE IT APPEARS TO BE INTENDED TO BIND BOTH
PARTIES WHEN APPLICABLE.  THE RULING AS TO THE LAW OF CALIFORNIA AS
APPLIED BY THE STATE COURT WAS THAT THE STIPULATION IN THE CONTRACT AS
TO THE AMOUNT OF DAMAGES IN CASE OF DELAY IN COMPLETION WAS NOT
APPLICABLE TO DELAY AFTER THE CONTRACTOR HAD ABANDONED THE WORK.  AS
THE CIRCUIT COURT OF APPEALS SAID, THAT DECISION "IS ADVERSE TO OURS." 

THE DECISION IN THE SINNOTT CASE WAS MADE IN 1919.  WE HAVE NOT BEEN
REFERRED TO ANY DECISION OF THE SUPREME COURT OF CALIFORNIA TO THE
CONTRARY.  WE THUS HAVE AN ANNOUNCEMENT OF THE STATE LAW BY AN
INTERMEDIATE APPELLATE COURT IN CALIFORNIA IN A RULING WHICH APPARENTLY
HAS NOT BEEN DISAPPROVED, AND THERE IS NO CONVINCING EVIDENCE THAT THE
LAW OF THE STATE IS OTHERWISE.  WE HAVE FULLY DISCUSSED THE PRINCIPLE
INVOLVED IN THE CASES OF WEST V. AMERICAN TELEPHONE & TELEGRAPH CO.,
POST, P. 223, AND FIDELITY UNION TRUST CO. V. FIELD, ANTE, P. 169, AND
FURTHER AMPLIFICATION IS UNNECESSARY.  SEE, ALSO, RINDGE CO. V. LOS
ANGELES, 262 U.S. 700, 708; TIPTON V. ATCHISON, T. & S.F. RY. CO., 298
U.S. 141, 151.  THE CIRCUIT COURT OF APPEALS SHOULD HAVE FOLLOWED THE
DECISION OF THE STATE COURT IN SINNOTT V. SCHUMACHER WITH RESPECT TO
THE INAPPLICABILITY OF THE LIQUIDATED DAMAGE CLAUSE IN THE EVENT OF THE
ABANDONMENT OF WORK UNDER THE CONTRACT, AND ITS JUDGMENT TO THE
CONTRARY IS REVERSED.  THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  THAT CLAUSE PROVIDED: 

"(D)  DAMAGES FOR DELAY.  - THE PARTIES HERETO EXPRESSLY STIPULATE
AND AGREE THAT TIME IS THE ESSENCE OF THIS CONTRACT.  IN CASE THE WORK
IS NOT COMPLETED WITHIN THE TIME SPECIFIED IN THE CONTRACT OR WITHIN
SUCH EXTENSIONS OF THE CONTRACT TIME AS MAY BE ALLOWED AS HEREIN
PROVIDED, IT IS DISTINCTLY UNDERSTOOD AND AGREED THAT THE CONTRACTOR
SHALL PAY THE DISTRICT AS AGREED AND LIQUIDATED DAMAGES AND NOT AS A
PENALTY FIVE HUNDRED DOLLARS ($500.00) FOR EACH AND EVERY WORKING DAY
WHICH MAY ELAPSE BETWEEN THE LIMITING DATE AS HEREIN PROVIDED AND THE
DATE OF ACTUAL COMPLETION OF THE WORK, SAID SUM BEING SPECIFICALLY
AGREED UPON AS A MEASURE OF DAMAGE TO THE DISTRICT BY REASON OF DELAY
IN THE COMPLETION OF THE WORK; IT BEING EXPRESSLY STIPULATED AND AGREED
THAT IT WOULD BE IMPRACTICABLE TO ESTIMATE AND ASCERTAIN THE ACTUAL
DAMAGES SUSTAINED BY THE DISTRICT UNDER SUCH CIRCUMSTANCES; AND THE
CONTRACTOR AGREES AND CONSENTS THAT THE AMOUNT OF SUCH LIQUIDATED
DAMAGES SO FIXED, SHALL BE DEDUCTED AND RETAINED BY THE DISTRICT FROM
ANY MONEY THEN DUE, OR THEREAFTER TO BECOME DUE, THE CONTRACTOR." 
FN2  THE CLAUSE FOR LIQUIDATED DAMAGES IN THE CONTRACT IN THE SINNOTT
CASE WAS AS FOLLOWS: 

"SHOULD THE CONTRACTOR FAIL TO COMPLETE THIS CONTRACT AND THE WORK
PROVIDED FOR WITHIN THE TIME SET FOR COMPLETION AS AFORESAID, DUE
ALLOWANCE BEING MADE FOR THE CONTINGENCIES PROVIDED FOR HEREIN, HE
SHALL THEN BECOME LIABLE TO THE OWNER FOR ALL LOSS AND DAMAGES WHICH
THE OWNER MAY SUFFER ON ACCOUNT THEREOF, IN THE SUM OF TEN DOLLARS PER
DAY, WHICH THE CONTRACTOR HEREBY AGREES TO DEDUCT FROM HIS CONTRACT
PRICE, FOR EACH DAY THAT THE WORK SHALL REMAIN UNFINISHED BEYOND SUCH
TIME FOR COMPLETION, AND THE OWNER AGREES TO PAY TO THE CONTRACTOR A
BONUS OF TEN DOLLARS ($10) FOR EACH DAY THAT THE WORK MAY BE COMPLETED
BEFORE THE TIME AFORESAID FOR THE COMPLETION. 

"THE AGREEMENT IN THIS PARAGRAPH MADE FOR DAMAGES IS MADE AS HEREIN
SET FORTH FOR THE REASON THAT THE ACTUAL DAMAGE WHICH WILL BE SUSTAINED
BY THE OWNER BY REASON OF THE CONTRACTOR'S BREACH OF THE COVENANT TO
COMPLETE THIS CONTRACT WITHIN THE TIME STATED IS FROM THE NATURE OF THE
CASE IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX; AND ONE OF THE
CONSIDERATIONS MOVING THE OWNER TO ENTER INTO THIS CONTRACT WITH THE
CONTRACTOR IS THE AGREEMENT OF THE CONTRACTOR TO COMPLETE HIS SAID
CONTRACT WITHIN THE TIME HEREIN STATED AND THE LIQUIDATED DAMAGES
HEREIN ABOVE STATED FOR HIS FAILURE TO DO SO." 

THE PLAINTIFF'S CONTENTION UNDER THIS CLAUSE WAS THAT THE DELAY IN
COMPLETION WAS NOT MORE THAN FIVE DAYS THE DAMAGE FOR WHICH UNDER THE
CONTRACT WOULD AMOUNT TO $50. 

FN3  COMPARE BACIGALUPI V. PHOENIX BUILDING CO., 14 CAL. APP. 632,
639; 112 P. 892.  SEE WILLISTON ON CONTRACTS, REV. ED., VOL. 3, SEC.
785, PP. 2210, 2211. 
..END :






HELVERING V. JANNEY, 311 U.S. 189 


NO. 36.  ARGUED NOVEMBER 18, 1940.  - DECIDED DECEMBER 9, 1940.  - 108
F.2D 564, AFFIRMED - 111 ID. 144, REVERSED. 


1.  UNDER SEC. 51(B) OF THE REVENUE ACT OF 1934, WHEN A JOINT RETURN
IS MADE BY HUSBAND AND WIFE, THE TAX IS COMPUTED ON THEIR AGGREGATE NET
INCOME; AND CAPITAL LOSSES OF ONE SPOUSE MAY BE DEDUCTED FROM CAPITAL
GAINS OF THE OTHER.  P. 194. 

2.  SECTION 117(D) OF THIS ACT DID NOT PURPORT TO ALTER THE RULE AS
TO THE RIGHT OF THE SPOUSES TO DEDUCTIONS IN THEIR JOINT RETURN, BUT
MERELY LIMITED THE AMOUNT OF CAPITAL LOSSES WHICH COULD BE DEDUCTED. 
P. 194. 

3.  TREASURY REGULATIONS 86, ART. 117-5, IN UNDERTAKING TO PROVIDE
THAT "THE ALLOWANCE OF LOSSES OF ONE SPOUSE FROM SALES OR EXCHANGES OF
CAPITAL ASSETS IS IN ALL CASES TO BE COMPUTED WITHOUT REGARD TO GAINS
AND LOSSES OF THE OTHER SPOUSE UPON SALES OR EXCHANGES OF CAPITAL
ASSETS," IS INCONSISTENT WITH THE ACT AND THEREFORE INEFFECTIVE.  P.
194. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. JANNEY ET UX.* 

*TOGETHER WITH NO. 113, GAINES ET UX. V. HELVERING, COMMISSIONER OF
INTERNAL REVENUE, ON WRIT OF CERTIORARI, POST, P. 628, TO THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 310 U.S. 617, TO REVIEW JUDGMENTS OF CIRCUIT COURTS OF
APPEALS WHICH DEALT WITH RULINGS OF THE BOARD OF TAX APPEALS.  IN NO.
36, A DECISION OF THE BOARD, 39 B.T.A. 240, SUSTAINING A DEFICIENCY
ASSESSMENT WAS REVERSED BY THE COURT BELOW, WHOSE JUDGMENT IS AFFIRMED
HERE.  IN NO. 113, A LIKE RULING OF THE BOARD WAS AFFIRMED BY A
JUDGMENT OF THE SECOND CIRCUIT WHICH THIS COURT REVERSES. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT THE SAME QUESTION, THAT IS, WHETHER UNDER THE
REVENUE ACT OF 1934, IN THE CASE OF A JOINT RETURN BY HUSBAND AND WIFE,
THE CAPITAL LOSSES OF ONE SPOUSE MAY BE DEDUCTED FROM THE CAPITAL GAINS
OF THE OTHER. 

IN HELVERING V. JANNEY, THE WIFE REALIZED NET GAINS FROM THE SALE OF
CAPITAL ASSETS DURING 1934, AND THE HUSBAND REALIZED NET LOSSES FROM
THE SALE OF CAPITAL ASSETS DURING THE SAME YEAR.  THEY FILED A JOINT
INCOME TAX RETURN REPORTING THE CAPITAL GAIN, WHICH REPRESENTED THE
DIFFERENCE BETWEEN THE WIFE'S ADJUSTED CAPITAL GAINS AND THE HUSBAND'S
ADJUSTED CAPITAL LOSSES.  THE COMMISSIONER RULED THAT THE HUSBAND'S
LOSSES COULD NOT BE APPLIED TO REDUCE THE GAINS REALIZED BY HIS WIFE
AND ACCORDINGLY DETERMINED A DEFICIENCY.  THE BOARD OF TAX APPEALS
SUSTAINED THE COMMISSIONER (39 B.T.A. 240) BUT THE CIRCUIT COURT OF
APPEALS FOR THE THIRD CIRCUIT REVERSED.  108 F.2D 564. 

IN GAINES V. HELVERING, THE HUSBAND REALIZED A NET GAIN FROM THE SALE
OF CAPITAL ASSETS DURING 1934, WHILE HIS WIFE SUSTAINED A NET LOSS FROM
THE SALE OF CAPITAL ASSETS.  THEY FILED A JOINT RETURN REPORTING A
CAPITAL LOSS, WHICH REPRESENTED THE DIFFERENCE BETWEEN THE HUSBAND'S
NET CAPITAL GAIN AND HIS WIFE'S NET CAPITAL LOSS.  THE COMMISSIONER, AS
IN THE JANNEY CASE, DECIDED AGAINST THIS ADJUSTMENT AND THE BOARD OF
TAX APPEALS AFFIRMED.  THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT AFFIRMED THE DECISION OF THE BOARD.  111 F.2D 144. 

IN VIEW OF THE CONFLICT BETWEEN THESE DECISIONS, WE GRANTED
CERTIORARI.  NO. 36, 310 U.S. 617; NO. 113, OCTOBER 14, 1940. 

RETURNS OF HUSBAND AND WIFE PROVIDED: 

"(B)  HUSBAND AND WIFE.  - IF A HUSBAND AND WIFE LIVING TOGETHER HAVE
AN AGGREGATE NET INCOME FOR THE TAXABLE YEAR OF $2,500 OR OVER, OR AN
AGGREGATE GROSS INCOME FOR SUCH YEAR OF $5,000 OR OVER - 

"(1)  EACH SHALL MAKE SUCH A RETURN, OR 

"(2)  THE INCOME OF EACH SHALL BE INCLUDED IN A SINGLE JOINT RETURN,
IN WHICH CASE THE TAX SHALL BE COMPUTED ON THE AGGREGATE INCOME." 

THE SAME PROVISION IN SUBSTANCE IS FOUND IN THE EARLIER REVENUE ACTS
FROM THAT OF 1921.  FN2 

THE "AGGREGATE INCOME," TO WHICH PARAGRAPH 2 OF SEC. 51(B) REFERS, IS
CLEARLY THE AGGREGATE NET INCOME AS IT IS THE AGGREGATE INCOME ON WHICH
"THE TAX IS TO BE COMPUTED."  IN THAT VIEW THE DEDUCTIONS TO WHICH
EITHER SPOUSE WOULD BE ENTITLED WOULD BE TAKEN IN THE CASE OF A JOINT
RETURN, FROM THE AGGREGATE GROSS INCOME. 

THAT WAS THE CONSTRUCTION PLACED UPON THE PROVISION FOR A JOINT
RETURN IN THE REVENUE ACT OF 1918 BY THE SOLICITOR OF INTERNAL REVENUE
IN AN OPINION RENDERED IN 1921.  FN3  AFTER CONSIDERING THE TERMS OF
THE STATUTE AND THE REASONABLE INFERENCE AS TO THE INTENT OF CONGRESS,
THE SOLICITOR CONCLUDED: 

"FROM THE FOREGOING IT FOLLOWS THAT THE PROPER CONSTRUCTION OF THE
REVENUE ACT OF 1918 PERMITS A HUSBAND AND WIFE LIVING TOGETHER, AT
THEIR OPTION, TO FILE SEPARATE RETURNS OR A SINGLE JOINT RETURN.  IF A
SINGLE JOINT RETURN IS FILED IT IS TREATED AS THE RETURN OF A TAXABLE
UNIT AND THE NET INCOME DISCLOSED BY THE RETURN IS SUBJECT TO BOTH
NORMAL AND SURTAX AS THOUGH THE RETURN WERE THAT OF A SINGLE
INDIVIDUAL.  IN CASES, THEREFORE, IN WHICH THE HUSBAND OR WIFE HAS
ALLOWABLE DEDUCTIONS IN EXCESS OF HIS OR HER GROSS INCOME, SUCH EXCESS
MAY, IF JOINT RETURN IS FILED, BE DEDUCTED FROM THE NET INCOME OF THE
OTHER FOR THE PURPOSE OF COMPUTING BOTH THE NORMAL AND SURTAX." 

THE TERMS OF THE REVENUE ACT OF 1921 MADE THIS VIEW EVEN CLEARER. 
FN4  TREASURY REGULATIONS 62, ARTICLE 401, PROMULGATED UNDER THE
REVENUE ACT OF 1921, APPARENTLY FOLLOWED THE SAME VIEW.  THAT ARTICLE
PROVIDED AS TO JOINT RETURNS OF HUSBAND AND WIFE,  - 

"WHERE THE INCOME OF EACH IS INCLUDED IN A SINGLE JOINT RETURN, THE
TAX IS COMPUTED ON THE AGGREGATE INCOME AND ALL DEDUCTIONS AND CREDITS
TO WHICH EITHER IS ENTITLED SHALL BE TAKEN FROM SUCH AGGREGATE
INCOME."  FN5 

THE QUESTION AS TO DEDUCTIONS FOR LOSSES ON SALES OR EXCHANGES OF
SECURITIES AROSE UNDER SEC. 23(R)(1) OF THE REVENUE ACT OF 1932.  FN6
THAT PROVIDED THAT LOSSES AS THERE DESCRIBED SHOULD BE ALLOWED ONLY TO
THE EXTENT OF GAINS DERIVED FROM SUCH SALES OR EXCHANGES.  NOTHING WAS
SAID IN THIS SECTION WHICH IN ANY WAY AFFECTED THE PROVISION OF THE
STATUTE AS TO JOINT RETURNS BY HUSBAND AND WIFE.  THE QUESTION IN THAT
RELATION, THAT IS, AS TO DEDUCTION FOR LOSSES ON SALES OF SECURITIES,
WAS SUBMITTED TO THE COMMISSIONER OF INTERNAL REVENUE AND WAS ANSWERED
BY HIM ON DECEMBER 29, 1932, AS FOLLOWS: 

"THE SPECIFIC QUESTION PRESENTED IS WHETHER THE LOSS SUSTAINED BY THE
HUSBAND MAY BE APPLIED TO OFFSET THE SAME AMOUNT OF GAIN REALIZED BY
THE WIFE IN RENDERING JOINT INCOME TAX RETURN FOR THE YEAR.  IN REPLY
YOU ARE ADVISED THAT, IN THE CASE OF A HUSBAND AND WIFE LIVING TOGETHER
WHO FILE A JOINT INCOME TAX RETURN, THE TAX LIABILITY IS COMPUTED ON
THE AGGREGATE INCOME AS PROVIDED BY SECTION 51(B)(2) OF THE REVENUE ACT
OF 1932, AND SUCH JOINT RETURN IS TREATED AS IF IT WAS THE RETURN OF A
SINGLE INDIVIDUAL.  THE AGGREGATE INCOME IN SUCH CASE WOULD OF COURSE
EMBRACE THE GAINS AS WELL AS THE ALLOWABLE DEDUCTIONS OF EACH SPOUSE. 
IF IT IS CORRECTLY UNDERSTOOD FROM YOUR LETTER THAT THE GAINS AND
LOSSES IN THE ILLUSTRATION PRESENTED ARE FROM TRANSACTIONS FALLING
WITHIN THE SAME CLASS WITHIN THE MEANING OF THE STATUTE SUCH AS SALES
OF SECURITIES NOT HELD FOR A PERIOD OF MORE THAN TWO YEARS, THE LOSS
SUSTAINED BY THE HUSBAND WOULD OFFSET THE SAME AMOUNT OF GAIN REALIZED
BY THE WIFE FROM SUCH SOURCE."  FN7 

THIS STATEMENT BY THE COMMISSIONER APPLIED THE SAME PRINCIPLE WHICH
HAD PREVIOUSLY BEEN FOLLOWED WITH RESPECT TO DEDUCTIONS IN THE JOINT
RETURNS OF HUSBAND AND WIFE, THERE HAVING BEEN NO INDICATION BY
CONGRESS OF ANY DIFFERENT PURPOSE. 

TREASURY REGULATIONS NO. 77, PROMULGATED UNDER THE ACT OF 1932,
CONTAINED NOTHING TO THE CONTRARY AND THE REGULATION THERETOFORE
OBTAINING AS TO SUCH JOINT RETURNS WAS LEFT UNCHANGED.  ART. 381. 

THE REVENUE ACT OF 1934 CONTINUED THE PRIOR STATUTORY PROVISIONS AS
TO JOINT RETURNS OF HUSBAND AND WIFE, AND SEC. 117(D) OF THAT ACT, AS
TO CAPITAL LOSSES, DID NOT PURPORT TO ALTER THE RULE AS TO THE RIGHT OF
THE SPOUSES TO DEDUCTIONS IN THEIR JOINT RETURN.  SECTION 117(D) MERELY
LIMITED THE AMOUNT OF LOSSES WHICH COULD BE DEDUCTED, AS FOLLOWS: 

"(D)  LIMITATION ON CAPITAL LOSSES.  - LOSSES FROM SALES OR EXCHANGES
OF CAPITAL ASSETS SHALL BE ALLOWED ONLY TO THE EXTENT OF $2,000 PLUS
THE GAINS FROM SUCH SALES OR EXCHANGES." 

THE CONCLUSION OF THE COMMISSIONER WITH RESPECT TO THE ACT OF 1932,
IN THE OPINION ABOVE MENTIONED, WAS EQUALLY APPLICABLE TO THE NEW ACT. 

IT WAS NOT UNTIL 1935 THAT THE TREASURY DEPARTMENT BY ARTICLE 117-5
OF REGULATIONS 86 UNDERTOOK TO PROVIDE THAT "THE ALLOWANCE OF LOSSES OF
ONE SPOUSE FROM SALES OR EXCHANGES OF CAPITAL ASSETS IS IN ALL CASES TO
BE COMPUTED WITHOUT REGARD TO GAINS AND LOSSES OF THE OTHER SPOUSE UPON
SALES OR EXCHANGES OF CAPITAL ASSETS."  FN8 

WE ARE OF THE OPINION THAT UNDER THE PROVISION OF THE ACT OF 1934 AS
TO JOINT RETURNS OF HUSBAND AND WIFE, WHICH EMBODIED A POLICY SET FORTH
IN SUBSTANTIALLY THE SAME TERMS FOR MANY YEARS, CONGRESS INTENDED TO
PROVIDE FOR A TAX ON THE AGGREGATE NET INCOME AND THAT THE LOSSES OF
ONE SPOUSE MIGHT BE DEDUCTED FROM THE GAINS OF THE OTHER; AND THAT THIS
APPLIED AS WELL TO DEDUCTIONS FOR CAPITAL LOSSES AS TO OTHER
DEDUCTIONS.  THIS, WE THINK, WAS THE MEANING OF THE PROVISION OF THE
REVENUE ACT OF 1934 WHEN IT WAS ENACTED, AND IT WAS SUBJECT TO CHANGE
ONLY BY CONGRESS, AND NOT BY THE DEPARTMENT. 

IN NO. 36, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

IN NO. 113, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED
AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH
THIS OPINION.  NO. 36, AFFIRMED.  NO. 113, REVERSED. 

FN1  48 STAT. 697. 

FN2  THE REVENUE ACT OF 1918, SEC. 223, ALSO PROVIDED FOR A JOINT
RETURN BY HUSBAND AND WIFE.  40 STAT. 1074. 


"(B)  IF A HUSBAND AND WIFE LIVING TOGETHER HAVE AN AGGREGATE NET
INCOME FOR THE TAXABLE YEAR OF $2,000 OR OVER, OR AN AGGREGATE GROSS
INCOME FOR SUCH YEAR OF $5,000 OR OVER - 

"(1)  EACH SHALL MAKE SUCH A RETURN, OR 

"(2)  THE INCOME OF EACH SHALL BE INCLUDED IN A SINGLE JOINT RETURN,
IN WHICH CASE THE TAX SHALL BE COMPUTED ON THE AGGREGATE INCOME." 

FN3  SOL.  OP. 90, CUM. BULL.  NO. 4, P. 236(1921). 

FN4  THE COMMITTEE ON WAYS AND MEANS OF THE HOUSE OF REPRESENTATIVES
REPORTED WITH RESPECT TO THE PROVISION OF THE BILL WHICH BECAME THE
REVENUE ACT OF 1921 AS FOLLOWS: 

"SECTION 231 OF THE BILL PROPOSES TO AMEND SECTION 223 OF THE PRESENT
LAW IN SUCH A MANNER AS TO CLEAR UP THE DOUBT NOW EXISTING AS TO THE
RIGHT OF HUSBAND AND WIFE IN ALL CASES TO MAKE A JOINT RETURN AND HAVE
THE TAX COMPUTED ON THE COMBINED INCOME."  HOUSE REP. NO. 350, 67TH
CONG., 1ST SESS.  SEE, ALSO, SEN. REP. NO. 275, 67TH CONG., 1ST SESS. 

FN5  THE SAME PROVISION WAS CONTINUED IN SUBSTANCE IN SUCCEEDING
REGULATIONS.  ARTICLE 401 OF TREASURY REGULATIONS 65 AND 69 UNDER THE
REVENUE ACTS OF 1924 AND 1926; ARTICLE 381 OF REGULATIONS 74 AND 77
UNDER THE REVENUE ACTS OF 1928 AND 1932. 

FN6  47 STAT. 183.  SECTION 23(R)(1) PROVIDED:  "LOSSES FROM SALES OR
EXCHANGES OF STOCKS AND BONDS (AS DEFINED IN SUBSECTION (T) OF THIS
BE ALLOWED ONLY TO THE EXTENT OF THE GAINS FROM SUCH SALES OR EXCHANGES
(INCLUDING GAINS WHICH MAY BE DERIVED BY A TAXPAYER FROM THE RETIREMENT
OF HIS OWN OBLIGATIONS)." 

FN7  1933 COMMERCE CLEARING HOUSE FEDERAL TAX SERVICE, VOL. III, PAR.
6037. 

FN8  IT WAS ALSO IN 1935 THAT THE BUREAU OF INTERNAL REVENUE
ANNOUNCED THE SAME RULING UNDER THE ACT OF 1932.  G.C.M. 15438, CUM.
BULL.  XIV-2, P. 156. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :















TAFT V. HELVERING, 311 U.S. 195 


NO. 183.  ARGUED NOVEMBER 18, 1940.  - DECIDED DECEMBER 9, 1940.  - 111
F.2D 145, REVERSED. 


1.  A JOINT RETURN BY A HUSBAND AND WIFE, UNDER SEC. 51(B) OF THE
REVENUE ACT OF 1934, IS TO BE TREATED AS A RETURN OF A TAXABLE UNIT AND
AS THOUGH MADE BY AN INDIVIDUAL.  P. 197. 

2.  IN COMPUTING THE NET INCOME ON A JOINT RETURN OF HUSBAND AND
WIFE, THEIR COMBINED CHARITABLE CONTRIBUTIONS ARE DEDUCTIBLE FROM THEIR
AGGREGATE GROSS INCOME UP TO 15% OF THE AGGREGATE NET INCOME, C. 277,
48 STAT. 690, SEC. 23(O).  PP. 197-198. 

ARTICLE 401, TREASURY REGULATIONS 62, UNDER THE REVENUE ACT OF 1921
IS CONSISTENT WITH THIS CONSTRUCTION. 

3.  ARTICLE 23(O), TREASURY REGULATIONS 86, WHICH SOUGHT TO REQUIRE A
HUSBAND AND WIFE, WHETHER THEY MAKE "A JOINT RETURN OR SEPARATE
RETURNS," TO BASE THEIR DEDUCTION FOR CHARITABLE CONTRIBUTIONS ON THE
SEPARATE NET INCOME OF THE SPOUSE MAKING THEM, IS INCONSISTENT WITH THE
ACT AND THEREFORE INEFFECTIVE.  P. 198. 

TAFT ET UX. V. HELVERING, COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 628, TO REVIEW A JUDGMENT WHICH AFFIRMED A
RULING OF THE BOARD OF TAX APPEALS (40 B.T.A. 229) SUSTAINING A
DEFICIENCY ASSESSMENT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PETITIONERS, HUSBAND AND WIFE, FILED JOINT INCOME-TAX RETURNS FOR THE
YEARS 1934 AND 1935.  IN COMPUTING THEIR AGGREGATE NET INCOME UNDER
SEC. 51(B) OF THE REVENUE ACT OF 1934,  FN1  THEY MADE DEDUCTIONS OF
THEIR COMBINED CHARITABLE CONTRIBUTIONS.  FN2  THE COMMISSIONER RULED
THAT THE DEDUCTIONS ON ACCOUNT OF THE WIFE'S CHARITABLE CONTRIBUTIONS
SHOULD BE REDUCED TO 15 PER CENT OF HER SEPARATE INCOME AND DEFICIENCES
WERE DETERMINED ACCORDINGLY.  THE BOARD OF TAX APPEALS SUSTAINED THE
COMMISSIONER (40 B.T.A. 229) AND THE CIRCUIT COURT OF APPEALS
AFFIRMED.  111 F.2D 145. 

BECAUSE THE QUESTION IS COGNATE TO THAT PRESENTED IN THE CASES OF
HELVERING V. JANNEY, ANTE, P. 189, AND GAINES V. HELVERING, ANTE, P.
189, WE GRANTED CERTIORARI.  OCTOBER 14, 1940. 

THE PROVISION FOR JOINT RETURNS IN SEC. 51(B) OF THE REVENUE ACT OF
1934 WAS IN SUBSTANTIALLY THE SAME FORM AS THE CORRESPONDING PROVISION
IN THE PRIOR REVENUE ACTS FROM 1921.  THE IMPORT OF THAT PROVISION IS
THAT IN MAKING A JOINT RETURN THE HUSBAND AND WIFE SHOULD REPORT THEIR
AGGREGATE GROSS INCOME AND COULD COMBINE THEIR DEDUCTIONS IN REPORTING
THEIR AGGREGATE NET INCOME UPON WHICH THE TAX WAS TO BE COMPUTED.  THAT
WAS THE CONSTRUCTION PLACED UPON THE ORIGINAL PROVISION FOR JOINT
RETURNS, IN THE REVENUE ACT OF 1918, BY THE SOLICITOR OF INTERNAL
REVENUE.  HE SAID IN HIS RULING:  "IF A SINGLE JOINT RETURN IS FILED IT
IS TREATED AS THE RETURN OF A TAXABLE UNIT AND THE NET INCOME DISCLOSED
BY THE RETURN IS SUBJECT TO BOTH NORMAL AND SURTAX AS THOUGH THE RETURN
WERE THAT OF A SINGLE INDIVIDUAL.  IN CASES, THEREFORE, IN WHICH THE
HUSBAND OR WIFE HAS ALLOWABLE DEDUCTIONS IN EXCESS OF HIS OR HER GROSS
INCOME, SUCH EXCESS MAY, IF JOINT RETURN IS FILED, BE DEDUCTED FROM THE
NET INCOME OF THE OTHER FOR THE PURPOSE OF COMPUTING BOTH THE NORMAL
AND SURTAX."  FN3  WE THINK THAT THIS WAS THE INTENTION OF CONGRESS IN
ENACTING THE ACT OF 1921  FN4 AND THE LATER ACTS CONTAINING THE SAME
PROVISION FOR JOINT RETURNS.  WE THINK THAT IT WAS ALSO THE FAIR IMPORT
OF THE TREASURY REGULATIONS UNDER THE ACT OF 1921 AND OF SUBSEQUENT
REGULATIONS PRIOR TO 1934.  FN5 

RESPONDENT PLACES EMPHASIS ON THE PHRASING OF ARTICLE 401 OF
REGULATIONS 62 UNDER THE ACT OF 1921, THAT "IN A SINGLE JOINT RETURN,
THE TAX IS COMPUTED ON THE AGGREGATE INCOME AND ALL DEDUCTIONS AND
CREDITS TO WHICH EITHER IS ENTITLED SHALL BE TAKEN FROM SUCH AGGREGATE
INCOME."  THE ARGUMENT STRESSES THE WORDS "TO WHICH EITHER IS ENTITLED"
AND IT IS URGED THAT EACH SPOUSE IS ENTITLED ONLY TO DEDUCT 15 PER CENT
OF HIS OR HER SEPARATE NET INCOME.  BUT WE THINK THAT THIS IS AN
INADMISSIBLE CONSTRUCTION OF THE STATUTE AND IS NOT A NECESSARY
CONSTRUCTION OF THE REGULATION.  SUCH A CONSTRUCTION IS INCONSISTENT
WITH THE PREMISE OF THE SOLICITOR'S OPINION, ABOVE MENTIONED, THAT A
JOINT RETURN "IS TREATED AS THE RETURN OF A TAXABLE UNIT" AND THE TAX
IS TO BE LAID AS THOUGH THE RETURN WERE THAT "OF A SINGLE INDIVIDUAL." 
THE MORE SPECIFIC LANGUAGE OF THE PROVISION IN THE ACT OF 1921, WHICH
FOR THE PRESENT PURPOSE IS THE SAME AS THAT IN THE ACT OF 1934, AFFORDS
A STRONGER BASIS FOR THIS CONCLUSION.  IT PROVIDES SPECIFICALLY FOR THE
INCLUSION OF THE INCOME OF EACH SPOUSE "IN A SINGLE JOINT RETURN" AND
IN THAT CASE THAT "THE TAX SHALL BE COMPUTED ON THE AGGREGATE INCOME." 
THE PRINCIPLE THAT THE JOINT RETURN IS TO BE TREATED AS THE RETURN OF A
"TAXABLE UNIT" AND AS THOUGH IT WERE MADE BY A "SINGLE INDIVIDUAL"
WOULD BE VIOLATED IF IN MAKING A JOINT RETURN EACH SPOUSE WERE
COMPELLED TO CALCULATE HIS OR HER CHARITABLE CONTRIBUTIONS AS IF HE OR
SHE WERE MAKING A SEPARATE RETURN.  THE PRINCIPLE OF A JOINT RETURN
PERMITTED AGGREGATION OF INCOME AND DEDUCTIONS AND THUS OVERRODE THE
LIMITATIONS INCIDENT TO SEPARATE RETURNS.  WE FIND NO INDICATION IN
ARTICLE 401 OF REGULATIONS 62 UNDER THE ACT OF 1921 OF ANY INTENTION TO
DEPART FROM THE SOLICITOR'S VIEW AS TO THE PURPORT OF THE STATUTE. 

IN 1935, BY ARTICLE 23(O)-1 OF TREASURY REGULATIONS 86, THE
DEPARTMENT SOUGHT TO REQUIRE A HUSBAND AND WIFE, WHETHER THEY MAKE "A
JOINT RETURN OR SEPARATE RETURNS," TO BASE THEIR DEDUCTION FOR
CHARITABLE CONTRIBUTIONS ON THE SEPARATE NET INCOME OF THE SPOUSE
MAKING THEM.  WE ARE OF THE OPINION THAT UNDER THE REVENUE ACT OF 1934,
TAKEN WITH THE MEANING WE THINK IT HAD WHEN ENACTED, PETITIONERS WERE
ENTITLED TO THE COMBINED DEDUCTIONS THEY CLAIMED, AND THAT THE
DEPARTMENTAL REGULATION TO THE CONTRARY WAS INEFFECTIVE TO DEPRIVE THEM
OF THAT RIGHT. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED. 

FN1  48 STAT. 697. 

FN2  SEC. 23(O), 48 STAT. 690. 

FN3  SOL.  OP. 90, CUM. BULL.  NO. 4, P. 236(1921).  SEE HELVERING V.
JANNEY, ANTE, P. 189. 

FN4  HOUSE REP. NO. 350, 67TH CONG., 1ST SESS.; SEN. REP. NO. 275,
67TH CONG., 1ST SESS. 

FN5  TREASURY REGULATIONS NOS. 65 AND 69, ART. 401; REGULATIONS NOS.
74 AND 77, ART. 381. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :

















KLOEB V. ARMOUR & CO., 311 U.S. 199 


NO. 65.  SUBMITTED NOVEMBER 18, 1940.  - DECIDED DECEMBER 9, 1940.  -
109 F.2D 72, REVERSED. 


1.  SECTIONS 71 AND 80, TITLE 28 U.S.C., WERE DESIGNED TO PREVENT
DELAY OVER ORDERS REMANDING CAUSES.  THEY ENTRUST DETERMINATION TO THE
INFORMED JUDICIAL DISCRETION OF THE DISTRICT COURT AND CUT OFF REVIEW. 
P. 204. 

2.  A STATE SUPREME COURT, BASING ITS DETERMINATION EXCLUSIVELY ON
THE ALLEGATIONS OF A PETITION TO REMOVE, AND CONCLUDING THEREFROM THAT
THE CAUSE INVOLVED A SEPARABLE CONTROVERSY BETWEEN CITIZENS OF
DIFFERENT STATES, DIRECTED REMOVAL.  THE FEDERAL DISTRICT COURT, BASING
ITS DETERMINATION ON THE ENTIRE RECORD, INCLUDING NEW FACTS, FOUND THAT
THERE WAS NO SEPARABLE CONTROVERSY AND THAT THE PLAINTIFF WAS AN ALIEN,
AND REMANDED THE CAUSE.  HELD: 

(1)  THE DISTRICT COURT ACTED WITHIN ITS JURISDICTION, PURSUANT TO
SECS. 71 AND 80, TITLE 28, U.S.C.  P. 204. 

(2)  THE ORDER OF REMAND WAS NOT REVIEWABLE BY THE CIRCUIT COURT OF
APPEALS.  P. 205. 

KLOEB, U.S. DISTRICT JUDGE, V. ARMOUR & COMPANY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 310 U.S. 621, TO REVIEW ORDERS OF THE COURT BELOW, IN
MANDAMUS PROCEEDINGS, WHICH DIRECTED THE DISTRICT COURT TO SET ASIDE
REMANDS IN FIVE SEPARATE ACTIONS. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, ARMOUR & COMPANY, A KENTUCKY CORPORATION, BY PETITION
OBTAINED FROM THE CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT, AN ORDER
DIRECTING THE U.S. DISTRICT JUDGE, NORTHERN DISTRICT OF OHIO, TO SET
ASIDE THE REMANDS OF FIVE SEPARATE ACTIONS.  109 F.2D 72.  THE OPINION
OF THE COURT MADE THE FOLLOWING STATEMENT CONCERNING THE BASIC ISSUE. 

"A NUMBER OF PERSONS, INCLUDING GEORGE E. KNIESS, BROUGHT SUIT
AGAINST ARMOUR AND COMPANY IN THE COURT OF COMMON PLEAS OF LUCAS COUNTY
FOR DAMAGES CLAIMED TO HAVE BEEN SUFFERED IN THE CONSUMPTION OF FOOD
PRODUCTS, MATERIALS FOR WHICH WERE PREPARED BY ARMOUR AND COMPANY, BUT
WHICH WERE PROCESSED BY A RETAILER IN TOLEDO BY THE NAME OF
BURMEISTER.  IN EACH OF THE FIVE CASES, AND UPON IDENTICAL PETITIONS,
THE PLAINTIFFS JOINED BURMEISTER AS A DEFENDANT ON THE THEORY THAT HE
AND THE ARMOUR COMPANY WERE JOINT TORTFEASORS.  ARMOUR AND COMPANY
FILED ITS PETITIONS FOR REMOVAL WITH THE COURT OF COMMON PLEAS
ACCOMPANIED BY PROPER REMOVAL BONDS.  ITS PETITIONS WERE CONTESTED BY
THE PLAINTIFFS AND WERE DENIED.  THE KNIESS CASE PROCEEDED TO TRIAL
WHILE THE OTHER CASES WERE HELD IN ABEYANCE AND IT EVENTUALLY REACHED
THE SUPREME COURT OF OHIO, KNIESS V. ARMOUR & CO., 134 O.S. 432; 17
N.E.2D 734; 119 A.L.R. 1348.  THAT COURT DISPOSED OF THE CASE UPON THE
SOLE GROUND THAT THE REMOVAL PETITION SHOULD HAVE BEEN ALLOWED, BECAUSE
A SEPARABLE CONTROVERSY EXISTED AS BETWEEN PLAINTIFF AND ARMOUR.  IT
STATED THE LAW OF OHIO TO BE THAT WHERE THE RESPONSIBILITY OF TWO
TORTFEASORS DIFFERS IN DEGREE AND IN NATURE, LIABILITY CANNOT BE JOINT
AND THE ALLEGED TORTS ARE NOT CONCURRENT.  HOLDING THAT THE DEFENDANT
ARMOUR AND COMPANY HAD ADEQUATELY PRESERVED ITS EXCEPTIONS TO THE
RULING OF THE LOWER COURT, THE CAUSE WAS REVERSED AND REMANDED TO THE
COURT OF COMMON PLEAS WITH INSTRUCTIONS TO GRANT THE REMOVAL PETITION,
AND THE MANDATE DIRECTED THE COURT OF COMMON PLEAS TO REMOVE THE CAUSE
TO THE DISTRICT COURT OF THE UNITED STATES. 

"WHEN THE CASE CAME BEFORE THE RESPONDENT THE PLAINTIFF MOVED TO
REMAND AND, NOTWITHSTANDING THE ADJUDICATION BY THE OHIO SUPREME COURT
WHICH HAD BECOME FINAL, THE RESPONDENT PROCEEDED TO TAKE EVIDENCE UPON
THE QUESTION OF A SEPARABLE CONTROVERSY, DECIDED THERE WAS NONE, THAT
THE CAUSE WAS NOT REMOVABLE UNDER THE STATUTE, ENTERED AN ORDER TO
REMAND THE CASE TO THE COURT OF COMMON PLEAS OF LUCAS COUNTY, AND
DENIED PETITIONS FOR REHEARING." 

THE DISTRICT JUDGE RENDERED NO OPINION TO SUPPORT HIS ACTIONS; BUT
RESPONDING TO THE RULE FROM THE CIRCUIT COURT OF APPEALS TO SHOW CAUSE,
HE CITED MCNUTT V. GENERAL MOTORS ACCEPTANCE CORP., 298 U.S. 178,
REFERRED TO AFFIDAVITS FILED IN SUPPORT OF THE MOTIONS AND SAID THAT
UPON CONSIDERATION OF THE ENTIRE RECORD, HE BECAME SATISFIED THAT NONE
OF THE FIVE SUITS "REALLY AND SUBSTANTIALLY INVOLVED A DISPUTE OR
SEPARABLE CONTROVERSY WHOLLY BETWEEN CITIZENS OF DIFFERENT STATES WHICH
COULD BE FULLY DETERMINED AS BETWEEN THEM, AND THEREFORE NONE OF SAID
CAUSES WERE WITHIN THE JURISDICTION OF THE DISTRICT COURT OF THE UNITED
STATES, AND FURTHER THAT PLAINTIFF KNIESS IS AN ALIEN." 

TITLE 28, U.S.C. PROVIDES - 

"SECTION 71 - WHENEVER ANY CAUSE SHALL BE REMOVED FROM ANY STATE
COURT INTO ANY DISTRICT COURT OF THE UNITED STATES, AND THE DISTRICT
COURT SHALL DECIDE THAT THE CAUSE WAS IMPROPERLY REMOVED, AND ORDER THE
SAME TO BE REMANDED TO THE STATE COURT FROM WHENCE IT CAME, SUCH REMAND
SHALL BE IMMEDIATELY CARRIED INTO EXECUTION, AND NO APPEAL OR WRIT OF
ERROR FROM THE DECISION OF THE DISTRICT COURT SO REMANDING SUCH CAUSE
SHALL BE ALLOWED." 

"SECTION 80 - IF IN ANY SUIT COMMENCED IN A DISTRICT COURT, OR
REMOVED FROM A STATE COURT TO A DISTRICT COURT OF THE UNITED STATES, IT
SHALL APPEAR TO THE SATISFACTION OF THE SAID DISTRICT COURT, AT ANY
TIME AFTER SUCH SUIT HAS BEEN BROUGHT OR REMOVED THERETO, THAT SUCH
SUIT DOES NOT REALLY AND SUBSTANTIALLY INVOLVE A DISPUTE OR CONTROVERSY
PROPERLY WITHIN THE JURISDICTION OF SAID DISTRICT COURT, OR THAT THE
PARTIES TO SAID SUIT HAVE BEEN IMPROPERLY OR COLLUSIVELY MADE OR
JOINED, EITHER AS PLAINTIFFS OR DEFENDANTS, FOR THE PURPOSE OF CREATING
A CASE COGNIZABLE OR REMOVABLE UNDER THIS CHAPTER, THE SAID DISTRICT
COURT SHALL PROCEED NO FURTHER THEREIN, BUT SHALL DISMISS THE SUIT OR
REMAND IT TO THE COURT FROM WHICH IT WAS REMOVED, AS JUSTICE MAY
REQUIRE, AND SHALL MAKE SUCH ORDER AS TO COSTS AS SHALL BE JUST." 

EMPLOYERS REINSURANCE CORP. V. BRYANT, 299 U.S. 374, 380, 381, SAYS
OF THESE SECTIONS:  "THEY ARE IN PARI MATERIA, ARE TO BE CONSTRUED
ACCORDINGLY RATHER THAN AS DISTINCT ENACTMENTS, AND, WHEN SO CONSTRUED,
SHOW, AS WAS HELD IN MOREY V. LOCKHART, 123 U.S. 56, 58, THAT THEY ARE
INTENDED TO REACH AND INCLUDE ALL CASES REMOVED FROM A STATE COURT INTO
A FEDERAL COURT AND REMANDED BY THE LATTER." 

THE COURT BELOW CONCLUDED:  "THE DISTRICT COURT HAD NO POWER TO
DETERMINE THE ISSUE OF SEPARABLE CONTROVERSY ENTITLING THE PETITIONER
TO REMOVE BECAUSE THAT ISSUE HAD ALREADY BEEN ADJUDICATED BY THE
SUPREME COURT OF OHIO, AND THE DISTRICT COURT, UPON FAMILIAR
PRINCIPLES, WAS BOUND BY SUCH ADJUDICATION." 

AND IT SAID - "IT WOULD SEEM THAT IN THE USE IN SECTION 71 OF THE
WORDS 'THE DISTRICT COURT SHALL DECIDE,' AND IN THE EMPLOYMENT IN
SAID DISTRICT COURT,' IT WAS WITHIN THE CONTEMPLATION OF THE CONGRESS
THAT THE STATUTE SHOULD APPLY TO THOSE CASES IN WHICH THERE WAS SOME
ISSUE WHICH, AS A MATTER OF PRIMARY DECISION, WAS SUBMITTED TO THE
DISTRICT JUDGE.  IT CERTAINLY COULD NOT HAVE BEEN INTENDED TO APPLY TO
DECISION OF A QUESTION WHICH WAS NOT PROPERLY AT ISSUE BEFORE THE
DISTRICT JUDGE SINCE IT HAD ALREADY BEEN ADJUDICATED BY THE SUPREME
COURT OF OHIO IN THE SAME PROCEEDING, BETWEEN THE SAME PARTIES, AND
UPON THE PLAINTIFF'S PETITION.  TO HOLD OTHERWISE WOULD BE TO PERMIT
THE DISTRICT COURT TO DEFY THE STATUTE 28 U.S.C.A., SEC. 687, WHICH
PROVIDES: 'THE RECORDS AND JUDICIAL PROCEEDINGS OF THE COURTS OF ANY
STATE  ...  SHALL HAVE SUCH FAITH AND CREDIT GIVEN TO THEM IN EVERY
COURT WITHIN THE UNITED STATES AS THEY HAVE BY LAW OR USAGE IN THE
COURTS OF THE STATE FROM WHICH THEY ARE TAKEN.'" 

ALSO - "THE DECISIONS IN EMPLOYERS REINSURANCE CORPORATION V. BRYANT,
DISTRICT JUDGE, SUPRA, AND IN RE PENNSYLVANIA COMPANY, SUPRA, MUST NOT,
IN OUR JUDGMENT, BE EXTENDED BEYOND THE SITUATIONS REQUIRING THE
APPLICATION OF THE RULE THERE ANNOUNCED, THAT IS TO SAY, TO CASES WHERE
THE ISSUE OF THE PETITION TO REMAND CALLED FOR ORIGINAL AND PRIMARY
DECISION BY THE DISTRICT COURT UNFETTERED BY THE DOCTRINE OF RES
JUDICATA OR THE MANDATE OF THE 'FULL FAITH AND CREDIT' STATUTE." 

"THAT THE DECISION OF THE OHIO COURT WAS RES JUDICATA NOTWITHSTANDING
THE ISSUE WAS ONE INVOLVING THE JURISDICTION OF A FEDERAL COURT, IS
SETTLED BY AMERICAN SURETY CO. V. BALDWIN, 287 U.S. 156, 53 S. CT. 98,
77 L. ED. 231, 86 A.L.R. 298; BALDWIN V. IOWA STATE TRAVELING MEN'S
ASS'N, 283 U.S. 522, 51 S. CT. 517, 75 L. ED. 1244, AND THE DECISION IN
EVELYN TREINIES, PETITIONER, V. SUNSHINE MINING CO., ET AL., (308 U.S.
66) 60 S. CT. 44, 84 L. ED. - , ANNOUNCED AS RECENTLY AS NOVEMBER 6,
1939." 

"WHILE THE PRECISE QUESTION HERE INVOLVED IS ONE OF FIRST IMPRESSION,
THE SUPREME COURT IN RE METROPOLITAN TRUST COMPANY, 218 U.S. 312, 31 S.
CT. 18, 54 L. ED. 1051, HAS DRAWN THE DISTINCTION BETWEEN ORDERS TO
REMAND ERRONEOUSLY ISSUED AND THOSE ISSUED BY A DISTRICT JUDGE IN
EXCESS OF HIS AUTHORITY.  THE FORMER MAY NOT BE CHALLENGED BY APPEAL OR
WRIT OF MANDAMUS - THE LATTER ARE A NULLITY.  WE THINK IT FOLLOWS THAT
UNDER GENERAL SUPERVISORY POWERS THEY MAY BE SET ASIDE." 

WE CANNOT ACCEPT THE CONCLUSION OF THE CIRCUIT COURT OF APPEALS.  IT
DERIVES FROM AN INADEQUATE APPRAISAL OF THE RECORD AND OF SECS. 71 AND
80 U.S. CODE, SUPRA. 

THESE SECTIONS WERE DESIGNED TO LIMIT POSSIBLE REVIEW OF ORDERS
REMANDING CAUSES AND THUS PREVENT DELAY.  IN RE PENNSYLVANIA COMPANY,
137 U.S. 451, 454.  THEY ENTRUST DETERMINATION CONCERNING SUCH MATTER
TO THE INFORMED JUDICIAL DISCRETION OF THE DISTRICT COURT AND CUT OFF
REVIEW. 

IN THIS CAUSE THE DISTRICT JUDGE WEIGHED THE PETITIONS AND RELEVANT
AFFIDAVITS AND CONCLUDED THAT THE CONTROVERSY WAS NOT WITHIN THE
JURISDICTION OF THAT COURT.  HIS CLEAR DUTY WAS TO PROCEED NO FURTHER
AND TO DISMISS OR REMAND THE CAUSES.  THE STATUTE EXEMPTED HIS ACTION
FROM REVIEW. 

THE SUGGESTION THAT THE FEDERAL DISTRICT COURT HAD NO POWER TO
CONSIDER THE ENTIRE RECORD AND PASS UPON THE QUESTION OF SEPARABILITY,
BECAUSE THIS POINT HAD BEEN FINALLY SETTLED BY THE SUPREME COURT OF
OHIO, FINDS NO ADEQUATE SUPPORT IN THE CASES CITED BY THE OPINION
BELOW:  BALDWIN V. IOWA STATE TRAVELING MEN'S ASSN., 283 U.S. 522,
AMERICAN SURETY CO. V. BALDWIN, 287 U.S. 156 AND TREINIES V. SUNSHINE
MINING CO., 308 U.S. 66.  NONE OF THESE CAUSES INVOLVED A SITUATION
COMPARABLE TO THE ONE HERE PRESENTED. 

CAUSES FROM STATE TO FEDERAL COURTS AND DIRECTS THAT WHEN COMPLIED
WITH, THE STATE COURT SHALL PROCEED NO FURTHER.  THE SUPREME COURT OF
OHIO DECLARED:  "IN PASSING UPON THE QUESTION OF REMOVAL, UNFORTUNATELY
WE ARE LIMITED SOLELY TO A CONSIDERATION OF THE FACTS STATED IN THE
PETITION."  IT HELD THAT UPON THEM THE TRIAL COURT SHOULD HAVE
RELINQUISHED JURISDICTION. 

THE CAUSES WENT TO THE FEDERAL DISTRICT COURT AND ADDITIONAL FACTS
WERE THERE PRESENTED.  AS REQUIRED BY THE STATUTE, THAT COURT
CONSIDERED ALL THE RELEVANT FACTS, PETITIONS AND AFFIDAVITS, EXERCISED
ITS DISCRETION AND ORDERED THE REMANDS.  JURISDICTION TO DECIDE, WE
THINK, IS CLEAR; THE CIRCUIT COURT OF APPEALS LACKED POWER TO REVIEW
THE REMAND. 

THE CHALLENGED ORDER MUST BE REVERSED. 
..END :
























UNITED STATES V. FALCONE, 311 U.S. 205 


NO. 42.  ARGUED NOVEMBER 18, 1940.  - DECIDED DECEMBER 9, 1940.  - 109
F.2D 579, AFFIRMED. 


ONE WHO SELLS MATERIALS KNOWING THAT THEY ARE INTENDED FOR USE, OR
WILL BE USED, IN THE PRODUCTION OF ILLICIT DISTILLED SPIRITS, BUT NOT
KNOWING OF A CONSPIRACY TO COMMIT THE CRIME, IS NOT CHARGEABLE AS CO
CONSPIRATOR.  P. 210. 

UNITED STATES V. FALCONE ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 310 U.S. 620, TO REVIEW A JUDGMENT REVERSING CONVICTIONS
OF CONSPIRACY. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED BY THIS RECORD IS WHETHER ONE WHO SELLS
MATERIALS WITH KNOWLEDGE THAT THEY ARE INTENDED FOR USE OR WILL BE USED
IN THE PRODUCTION OF ILLICIT DISTILLED SPIRITS MAY BE CONVICTED AS A CO
CONSPIRATOR WITH A DISTILLER WHO CONSPIRED WITH OTHERS TO DISTILL THE
SPIRITS IN VIOLATION OF THE REVENUE LAWS. 

RESPONDENTS WERE INDICTED WITH SIXTY-THREE OTHERS IN THE NORTHERN
DISTRICT OF NEW YORK FOR CONSPIRING TO VIOLATE THE REVENUE LAWS BY THE
OPERATION OF TWENTY-TWO ILLICIT STILLS IN THE VICINITY OF UTICA, NEW
YORK.  THE CASE WAS SUBMITTED TO THE JURY AS TO TWENTY-FOUR DEFENDANTS,
OF WHOM THE FIVE RESPONDENTS AND SIXTEEN OPERATORS OF STILLS WERE
CONVICTED.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED THE
CONVICTION OF THE FIVE RESPONDENTS ON THE GROUND THAT AS THERE WAS NO
EVIDENCE THAT RESPONDENTS WERE THEMSELVES CONSPIRATORS, THE SALE BY
THEM OF MATERIALS, KNOWING THAT THEY WOULD BE USED BY OTHERS IN ILLICIT
DISTILLING, WAS NOT SUFFICIENT TO ESTABLISH THAT RESPONDENTS WERE
GUILTY OF THE CONSPIRACY CHARGED.  109 F.2D 579.  WE GRANTED
CERTIORARI, 310 U.S. 620, TO RESOLVE AN ASSERTED CONFLICT OF THE
DECISION BELOW WITH THOSE OF COURTS OF APPEALS IN OTHER CIRCUITS. 
SIMPSON V. UNITED STATES, 11 F.2D 591; PATTIS V. UNITED STATES, 17 F.2D
562; BORGIA V. UNITED STATES, 78 F.2D 550; MARINO V. UNITED STATES, 91
F.2D 691; SEE BACKUN V. UNITED STATES, 112 F.2D 635.  COMPARE YOUNG V.
UNITED STATES, 48 F.2D 26. 

ALL OF RESPONDENTS WERE JOBBERS OR DISTRIBUTORS WHO, DURING THE
PERIOD IN QUESTION, SOLD SUGAR, YEAST OR CANS, SOME OF WHICH FOUND
THEIR WAY INTO THE POSSESSION AND USE OF SOME OF THE DISTILLER
DEFENDANTS.  THE INDICTMENT WHILE CHARGING GENERALLY THAT ALL THE
DEFENDANTS WERE PARTIES TO THE CONSPIRACY DID NOT ALLEGE SPECIFICALLY
THAT ANY OF RESPONDENTS HAD KNOWLEDGE OF THE CONSPIRACY BUT IT DID
ALLEGE THAT RESPONDENTS ALBERICO AND NOLE BROTHERS SOLD THE MATERIALS
MENTIONED KNOWING THAT THEY WERE TO BE USED IN ILLICIT DISTILLING.  THE
COURT OF APPEALS, REVIEWING THE EVIDENCE THOUGHT, IN THE CASE OF SOME
OF THE RESPONDENTS, THAT THE JURY MIGHT TAKE IT THAT THEY WERE
KNOWINGLY SUPPLYING THE DISTILLERS.  AS TO NICHOLAS NOLE, WHOSE CASE IT
CONSIDERED MOST DOUBTFUL, IT THOUGHT THAT HIS EQUIVOCAL CONDUCT "WAS AS
LIKELY TO HAVE COME FROM A BELIEF THAT IT WAS A CRIME TO SELL THE YEAST
AND THE CANS TO DISTILLERS AS FROM BEING IN FACT ANY FURTHER INVOLVED
IN THEIR BUSINESS."  BUT IT ASSUMED FOR PURPOSES OF DECISION THAT ALL
FURNISHED SUPPLIES WHICH THEY KNEW ULTIMATELY REACHED AND WERE USED BY
SOME OF THE DISTILLERS.  UPON THIS ASSUMPTION IT SAID, "IN THE LIGHT OF
ALL THIS, IT IS APPARENT THAT THE FIRST QUESTION IS WHETHER THE SELLER
OF GOODS, IN THEMSELVES INNOCENT, BECOMES A CONSPIRATOR WITH - OR, WHAT
IS IN SUBSTANCE THE SAME THING, AN ABETTOR OF - THE BUYER BECAUSE HE
KNOWS THAT THE BUYER MEANS TO USE THE GOODS TO COMMIT A CRIME."  AND IT
CONCLUDED THAT MERELY BECAUSE RESPONDENT DID NOT FOREGO A "NORMALLY
LAWFUL ACTIVITY OF THE FRUITS OF WHICH HE KNEW THAT OTHERS WERE MAKING
UNLAWFUL USE" HE IS NOT GUILTY OF A CONSPIRACY. 

THE GOVERNMENT DOES NOT ARGUE HERE THE POINT WHICH SEEMS TO BE
IMPLICIT IN THE QUESTION RAISED BY ITS PETITION FOR CERTIORARI, THAT
CONVICTION OF CONSPIRACY CAN REST ON PROOF ALONE OF KNOWINGLY SUPPLYING
AN ILLICIT DISTILLER, WHO IS NOT CONSPIRING WITH OTHERS.  IN SUCH A
CASE, AS THE GOVERNMENT CONCEDES, THE ACT OF SUPPLYING OR SOME OTHER
PROOF MUST IMPORT AN AGREEMENT OR CONCERT OF ACTION BETWEEN BUYER AND
SELLER, WHICH ADMITTEDLY IS NOT PRESENT HERE.  CF. GEBARDI V. UNITED
STATES, 287 U.S. 112, 121; DI BONAVENTURA V. UNITED STATES, 15 F.2D
494.  BUT THE GOVERNMENT DOES CONTEND THAT ONE WHO WITH KNOWLEDGE OF A
CONSPIRACY TO DISTILL ILLICIT SPIRITS SELLS MATERIALS TO A CONSPIRATOR
KNOWING THAT THEY WILL BE USED IN THE DISTILLING, IS HIMSELF GUILTY OF
THE CONSPIRACY.  IT IS SAID THAT HE IS, EITHER BECAUSE HIS KNOWLEDGE
COMBINED WITH HIS ACTION MAKES HIM A PARTICIPANT IN THE AGREEMENT WHICH
IS THE CONSPIRACY, OR WHAT IS THE SAME THING HE IS A PRINCIPAL IN THE
CONSPIRACY AS AN AIDER OR ABETTOR BY VIRTUE OF SEC. 332 OF THE CRIMINAL
CODE, 18 U.S.C. SEC. 550, WHICH PROVIDES:  "WHOEVER DIRECTLY COMMITS
ANY ACT CONSTITUTING AN OFFENSE DEFINED IN ANY LAW OF THE UNITED
STATES, OR AIDS, ABETS, COUNSELS, COMMANDS, INDUCES OR PROCURES ITS
COMMISSION, IS A PRINCIPAL." 

THE ARGUMENT, THE MERITS OF WHICH WE DO NOT CONSIDER, OVERLOOKS THE
FACT THAT THE OPINION BELOW PROCEEDED ON THE ASSUMPTION THAT THE
EVIDENCE SHOWED ONLY THAT RESPONDENTS OR SOME OF THEM KNEW THAT THE
MATERIALS SOLD WOULD BE USED IN THE DISTILLATION OF ILLICIT SPIRITS,
AND FELL SHORT OF SHOWING RESPONDENTS' PARTICIPATION IN THE CONSPIRACY
OR THAT THEY KNEW OF IT.  WE DID NOT BRING THE CASE HERE TO REVIEW THE
EVIDENCE, BUT WE ARE SATISFIED THAT THE EVIDENCE ON WHICH THE
GOVERNMENT RELIES DOES NOT DO MORE THAN SHOW KNOWLEDGE BY RESPONDENTS
THAT THE MATERIALS WOULD BE USED FOR ILLICIT DISTILLING IF IT DOES AS
MUCH IN THE CASE OF SOME.  FN1  IN THE CASE OF ALBERICO, AS IN THE CASE
OF NICHOLAS NOLE, THE JURY COULD HAVE FOUND THAT HE KNEW THAT ONE OF
THEIR CUSTOMERS WHO IS AN UNCONVICTED DEFENDANT WAS USING THE PURCHASED
MATERIAL IN ILLICIT DISTILLING.  BUT IT COULD NOT BE INFERRED FROM THAT
OR FROM THE CASUAL AND UNEXPLAINED MEETINGS OF SOME OF RESPONDENTS WITH
OTHERS WHO WERE CONVICTED AS CONSPIRATORS THAT RESPONDENTS KNEW OF THE
CONSPIRACY.  THE EVIDENCE RESPECTING THE VOLUME OF SALES TO ANY KNOWN
TO BE DISTILLERS IS TOO VAGUE AND INCONCLUSIVE TO SUPPORT A JURY
FINDING THAT RESPONDENTS KNEW OF A CONSPIRACY FROM THE SIZE OF THE
PURCHASES EVEN THOUGH WE WERE TO ASSUME WHAT WE DO NOT DECIDE THAT THE
KNOWLEDGE WOULD MAKE THEM CONSPIRATORS OR AIDERS OR ABETTORS OF THE
CONSPIRACY.  RESPONDENTS ARE NOT CHARGED WITH AIDING AND ABETTING
ILLICIT DISTILLING, AND THEY CANNOT BE BROUGHT WITHIN THE SWEEP OF THE
GOVERNMENT'S CONSPIRACY DRAGNET IF THEY HAD NO KNOWLEDGE THAT THERE WAS
A CONSPIRACY. 

THE GIST OF THE OFFENSE OF CONSPIRACY AS DEFINED BY SEC. 37 OF THE
CRIMINAL CODE, 18 U.S.C. SEC. 88, IS AGREEMENT AMONG THE CONSPIRATORS
TO COMMIT AN OFFENSE ATTENDED BY AN ACT OF ONE OR MORE OF THE
CONSPIRATORS TO EFFECT THE OBJECT OF THE CONSPIRACY.  PETTIBONE V.
UNITED STATES, 148 U.S. 197; MARINO V. UNITED STATES, SUPRA; TROUTMAN
V. UNITED STATES, 100 F.2D 628; BELAND V. UNITED STATES, 100 F.2D 289;
CF. GEBARDI V. UNITED STATES, SUPRA.  THOSE HAVING NO KNOWLEDGE OF THE
CONSPIRACY ARE NOT CONSPIRATORS, UNITED STATES V. HIRSCH, 100 U.S. 33,
34; WENIGER V. UNITED STATES, 47 F.2D 692, 693; AND ONE WHO WITHOUT
MORE FURNISHES SUPPLIES TO AN ILLICIT DISTILLER IS NOT GUILTY OF
CONSPIRACY EVEN THOUGH HIS SALE MAY HAVE FURTHERED THE OBJECT OF A
CONSPIRACY TO WHICH THE DISTILLER WAS A PARTY BUT OF WHICH THE SUPPLIER
HAD NO KNOWLEDGE.  ON THIS RECORD WE HAVE NO OCCASION TO DECIDE ANY
OTHER QUESTION.  AFFIRMED. 

FN1  THE TWO FALCONES WHO WERE IN BUSINESS AS SUGAR JOBBERS WERE
SHOWN TO HAVE SOLD SUGAR TO THREE WHOLESALE GROCERS WHO IN TURN WERE
SHOWN TO HAVE SOLD SOME OF THE SUGAR TO DISTILLERS.  TO ESTABLISH
GUILTY KNOWLEDGE THE GOVERNMENT RELIES UPON EVIDENCE SHOWING THAT THE
VOLUME OF THEIR SALES WAS MATERIALLY LARGER DURING THE PERIODS OF
ACTIVITY OF THE ILLICIT STILLS; THAT JOSEPH FALCONE WAS SHOWN ON TWO
OCCASIONS, AT ONE OF WHICH SALVATORE FALCONE WAS PRESENT, TO HAVE BEEN
IN CONVERSATION WITH ONE OF THE CONSPIRATORS WHO WAS A DISTILLER, AND
ON ONE OCCASION WITH ANOTHER DISTILLER CONSPIRATOR WHO WAS HIS BROTHER
IN-LAW; THAT JOSEPH FALCONE HAD BEEN SEEN AT THE VENEZIA RESTAURANT
WHICH WAS PATRONIZED BY SOME OF THE CONSPIRATORS AND KNEW ITS
PROPRIETOR; AND ON TWO OCCASIONS SALVATORE FALCONE HAD VISITED THE
RESTAURANT, ON ONE TO COLLECT FUNDS FOR THE RED CROSS AND ON ANOTHER
FOR A MONUMENT TO MARCONI. 

RESPONDENT ALBERICO WAS A MEMBER OF A FIRM OF WHOLESALE GROCERS WHO
DEALT IN SUGAR AND FIVE-GALLON TIN CANS AMONG OTHER THINGS.  THEY SOLD
SUGAR TO WHOLESALE GROCERS AND JOBBERS.  TO ESTABLISH ALBERICO'S GUILTY
KNOWLEDGE THE GOVERNMENT RELIES ON EVIDENCE THAT HIS TOTAL PURCHASES OF
SUGAR MATERIALLY INCREASED DURING THE PERIOD WHEN THE ILLICIT STILLS
WERE SHOWN TO BE IN OPERATION; THAT SOME OF HIS SUGAR PURCHASES FROM A
LOCAL WHOLESALER WERE AT HIGHER PRICES THAN HE WAS THEN PAYING OTHERS;
THAT ON THE PREMISES OF ONE OF THE DISTILLERS THERE WERE FOUND FIFTY
FIVE CARDBOARD CARTONS, EACH SUITABLE FOR CONTAINING ONE DOZEN FIVE
GALLON CANS, ON ONE OF WHICH WAS STENCILLED THE NAME OF ALBERICO'S
FIRM; THAT ON EIGHT TO TEN OCCASIONS ALBERICO SOLD SUGAR AND CANS IN
UNNAMED AMOUNTS TO MORREALE, ONE OF THE DEFENDANT DISTILLERS WHO WAS
NOT CONVICTED, AND ON ONE OCCASION WAS OVERHEARD TO SAY, IN REFUSING
CREDIT TO MORREALE, "I COULD NOT TRUST YOU BECAUSE YOUR BUSINESS IS TOO
RISKY." 

RESPONDENT NICHOLAS NOLE WAS SHOWN TO BE PROPRIETOR OF ACME YEAST
COMPANY AND ALSO THE UTICA FREIGHT FORWARDING COMPANY, TO WHICH ONE AND
ONE-HALF TONS OF K & M YEAST WAS CONSIGNED BY THE SELLER.  WRAPPERS
BEARING THE DISTINCTIVE MARKS OF THE ACME YEAST COMPANY AND K & M
YEAST, QUANTITY NOT STATED WERE FOUND AT ONE OF THE STILLS; AND A K & M
YEAST CONTAINER WAS FOUND AT ANOTHER.  TO SHOW GUILTY KNOWLEDGE OF
NICHOLAS NOLE THE GOVERNMENT RELIES ON THE CIRCUMSTANCE THAT HE
REGISTERED THE ACME YEAST COMPANY IN THE COUNTY CLERK'S OFFICE IN THE
NAME OF A COUSIN; THAT THE ORDER FOR THE CONSIGNMENT OF K & M YEAST WAS
PLACED IN THE NAME OF AN UNIDENTIFIED PERSON; THAT NOLE HAD BEEN SEEN
IN CONVERSATION WITH SOME OF THE CONVICTED DISTILLERS AT A TIME WHEN
SOME OF THE ILLICIT STILLS WERE IN OPERATION, AND THAT ON ONE OCCASION
DURING THAT PERIOD HE SOLD AND DELIVERED FIFTEEN FIVE-GALLON CANS OF
ILLICIT ALCOHOL FROM A SOURCE NOT STATED. 

RESPONDENT JOHN NOLE WAS SHOWN TO BE A DISTRIBUTOR FOR THE NATIONAL
GRAIN YEAST COMPANY IN UTICA DURING THE PERIOD IN QUESTION.  YEAST
WRAPPERS BEARING THE NATIONAL LABELS WERE FOUND AT THREE OF THE
STILLS.  TO SHOW GUILTY KNOWLEDGE OF JOHN NOLE THE GOVERNMENT RELIES ON
EVIDENCE THAT HE HAD ASSISTED HIS BROTHER NICHOLAS IN UNLOADING YEAST
AT THE UTICA FREIGHT FORWARDING CO.; THAT HE WAS A PATRON OF THE
VENEZIA RESTAURANT; THAT ON ONE OCCASION HE WAS SEEN TALKING WITH
MORREALE, THE UNCONVICTED DISTILLER, IN THE VICINITY OF A STORE IN
UTICA, WHOSE STORE IT DOES NOT APPEAR.  ON THREE OCCASIONS MORREALE AND
ANOTHER CONVICTED DEFENDANT PROCURED YEAST IN CARTONS AND SOME IN KEGS
AT THE STORE AND ON ONE OCCASION JOHN NOLE TOLD THE PERSON IN CHARGE OF
THE STORE TO LET THEM HAVE THE YEAST; THAT JOHN NOLES' INFORMATION
RETURN REQUIRED BY THE GOVERNMENT OF ALL SALES OF YEAST IN EXCESS OF
FIVE POUNDS TO ONE PERSON DID NOT SHOW IN FEBRUARY OR MARCH, 1938, ANY
SALE OF YEAST TO MORREALE OR ANY SALE OF KEG YEAST. 
..END :
















SCHRIBER CO. V. CLEVELAND TRUST CO., 311 U.S. 211 


NO. 9.  ARGUED OCTOBER 24, 25, 1940.  - DECIDED DECEMBER 9, 1940.  - 108
F.2D 109, REVERSED. 


1.  THE CLAIMS OF A PATENT ARE INTERPRETED IN THE LIGHT OF THE
SPECIFICATIONS, BUT WITH REFERENCE ALSO TO ITS FILE-WRAPPER HISTORY. 
P. 217. 

2.  IT IS A RULE OF PATENT CONSTRUCTION THAT A CLAIM IN A PATENT MUST
BE READ AND INTERPRETED WITH REFERENCE TO CLAIMS THAT HAVE BEEN
CANCELLED OR REJECTED AND THE CLAIMS ALLOWED CAN NOT BY CONSTRUCTION BE
READ TO COVER WHAT HAS THUS BEEN ELIMINATED FROM THE PATENT.  P. 220. 

3.  WHILE THIS RULE IS MOST FREQUENTLY INVOKED WHEN THE ORIGINAL AND
CANCELLED CLAIM IS BROADER THAN THAT ALLOWED, THE RULE AND THE REASON
FOR IT ARE THE SAME IF THE CANCELLED OR REJECTED CLAIM BE NARROWER.  P.
221. 

4.  THE PATENTEE MAY NOT, BY RESORT TO THE DOCTRINE OF EQUIVALENTS,
GIVE TO AN ALLOWED CLAIM A SCOPE WHICH IT MIGHT HAVE HAD BUT FOR
AMENDMENTS, THE CANCELLATION OF WHICH AMOUNTS TO A DISCLAIMER.  P.
221. 

5.  THE PATENT TO JARDINE, NO. 1,763,523, (CLAIMS 1, 8, AND 11),
RELATING TO PISTONS FOR INTERNAL COMBUSTION ENGINES, CLAIMS THE
COMBINATION OF A PISTON-HEAD, A DIVIDED SKIRT, AND WEBS CONNECTING THE
HEAD AND SKIRT PORTIONS AND SUPPORTING TWO WRIST-PIN BOSSES.  ASSUMING
THAT, WITH THE AID OF THE SPECIFICATION, THESE CLAIMS MIGHT BE
CONSTRUED TO CLAIM FLEXIBLE WEBS, DEVISED TO ACT IN COOPERATION WITH
THE OTHER ELEMENTS TO MAKE THE PISTON RESPOND TO PHYSICAL COMPRESSION
AND THERMAL EXPANSION, AS AN ELEMENT OF THE COMBINATION WHICH THEY DO
NOT CLAIM EXPRESSLY, SUCH CONSTRUCTION IS PRECLUDED BECAUSE THE
PATENTEE, BY AMENDMENTS WHILE HIS APPLICATION WAS PENDING, MADE
ADDITIONAL CLAIMS LIKE THOSE MENTIONED BUT SPECIFYING FLEXIBLE WEBS,
AND THEREAFTER WITHDREW THEM, UPON THEIR BEING REJECTED IN INTERFERENCE
PROCEEDINGS.  PP. 215, 222. 

SCHRIBER-SCHROTH CO. V. CLEVELAND TRUST CO. ET AL.* 

*TOGETHER WITH NO. 10, ABERDEEN MOTOR SUPPLY CO. V. CLEVELAND TRUST
CO. ET AL., AND NO. 11, F.E. ROWE SALES CO. V. CLEVELAND TRUST CO. ET
AL., ALSO ON WRITS OF CERTIORARI, 309 U.S. 648, TO THE CIRCUIT COURT OF
APPEALS FOR THE SIXTH CIRCUIT.  THE CHRYSLER CORPORATION WAS JOINED AS
A PARTY PLAINTIFF IN THE ORIGINAL SUITS AND IS A NOMINAL RESPONDENT
HERE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 309 U.S. 648, TO REVIEW A DECREE SUSTAINING A PATENT IN
SUITS TO RESTRAIN INFRINGEMENTS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT* . 

*THE OPINION APPEARS HERE AS AMENDED BY AN ORDER OF FEBRUARY 3, 1941,
REPORTED IN 312 U.S. 

DECISION IN THESE CASES TURNS ON THE QUESTION WHETHER, IN THE LIGHT
OF THE PATENT OFFICE HISTORY OF THE JARDINE PATENT ON A PISTON FOR GAS
ENGINES, THE COURT BELOW, IN CONSTRUING THE SPECIFICATIONS AND CLAIMS,
ERRONEOUSLY INCLUDED ONE ELEMENT, "FLEXIBLE" OR "YIELDING" WEBS, IN THE
PATENTED COMBINATION. 

A RELATED QUESTION WAS CONSIDERED BY THIS COURT IN CONNECTION WITH
THE GULICK AND MAYNARD PATENTS, ALSO INVOLVED IN THIS LITIGATION, IN
SCHRIBER-SCHROTH CO. V. CLEVELAND TRUST CO., 305 U.S. 47.  RESPONDENT,
THE CLEVELAND TRUST COMPANY, IS THE ASSIGNEE IN TRUST UNDER A POOLING
AGREEMENT OF SOME EIGHTY PATENTS RELATING TO PISTONS FOR GAS ENGINES. 
IT BROUGHT SUIT IN THE DISTRICT COURT FOR NORTHERN OHIO AGAINST
PETITIONERS, THREE PISTON DEALERS, CUSTOMERS OF THE STERLING PRODUCTS
COMPANY, TO RESTRAIN INFRINGEMENT OF FIVE OF THE PATENTS, INCLUDING THE
GULICK PATENT NO. 1,815,733, APPLIED FOR NOVEMBER 30, 1917 AND ALLOWED
JULY 31, 1931, THE JARDINE PATENT NO. 1,763,523, APPLIED FOR MARCH 11,
1920 AND ALLOWED JUNE 10, 1930, AND THE MAYNARD PATENT NO. 1,655,968,
APPLIED FOR JANUARY 3, 1921 AND ALLOWED JUNE 10, 1928. 

THE CASES WERE CONSOLIDATED AND TRIED BEFORE A SPECIAL MASTER WHO,
UPON THE BASIS OF ELABORATE SPECIAL FINDINGS, CONCLUDED THAT THE GULICK
PATENT WAS INVALID BECAUSE OF WANT OF INVENTION AND BECAUSE OF THE
ADDITION TO THE APPLICATION BY AMENDMENT IN 1922 OF A NEW ELEMENT OF
THE ALLEGED INVENTION; THAT THE MAYNARD PATENT WAS INVALID FOR WANT OF
INVENTION AND FOR FAILURE TO DESCRIBE AND CLAIM THE ALLEGED INVENTION,
AND THAT THE JARDINE PATENT WAS INVALID AS NOT SHOWING INVENTION OVER
THE PRIOR ART EXHIBITED BY RICARDO, FRANQUIST AND LONG.  HE HELD THE
OTHER PATENTS INVALID FOR REASONS NOT NOW MATERIAL. 

THE DISTRICT COURT ADOPTED THE MASTER'S FINDINGS AND GAVE ITS DECREE
FOR PETITIONERS.  THE COURT OF APPEALS REVERSED AS TO TWO OF THE FIVE
PATENTS, HOLDING THE GULICK AND MAYNARD PATENTS VALID AND INFRINGED. 
92 F.2D 330.  THE ELEMENTS OF THE COMBINATION AS STATED IN CLAIM 39, OF
THE GULICK PATENT, ARE: 

"A PISTON FOR AN ENGINE CYLINDER COMPRISING A SKIRT, A HEAD SEPARATED
FROM THE SKIRT WALL AROUND ITS ENTIRE PERIPHERY, SAID SKIRT BEING
LONGITUDINALLY SPLIT TO RENDER THE SKIRT WALL YIELDABLE ON EVERY
DIAMETER IN RESPONSE TO CYLINDER WALL PRESSURE, WRIST PIN BOSSES, AND
MEANS RIGIDLY CONNECTING SAID BOSSES TO THE HEAD AND YIELDINGLY
CONNECTING SAID BOSSES TO THE SKIRT WHEREBY SAID SKIRT IS YIELDABLE IN
RESPONSE TO CYLINDER WALL PRESSURE." 

REFERENCE TO A COMBINATION, INCLUDING WITH OTHER ELEMENTS WEB
CONNECTIONS "WHEREBY SAID PISTON SKIRT IS RENDERED YIELDABLE DURING
OPERATION IN RESPONSE TO CYLINDER WALL PRESSURE" APPEARS IN NUMBER 18,
ONE OF THE SUSTAINED CLAIMS. 

THE COURT OF APPEALS FOUND INVENTION IN BOTH THE GULICK AND MAYNARD
PATENTS, IN A COMBINATION OF ELEMENTS OF WHICH ONE WAS "WEBS LATERALLY
FLEXIBLE," WHICH WAS NOT SPECIFICALLY DESCRIBED OR CLAIMED IN THE
GULICK PATENT BEFORE ITS AMENDMENT OF 1922 AND WAS NEVER SO DESCRIBED
OR CLAIMED IN THE MAYNARD PATENT. 

CONCEDING THAT OTHER ELEMENTS IN THE COMBINATIONS WERE OLD IN THE
PISTON ART IT SAID:  "BUT TO COMBINE INSULATION OF HEAD FROM SKIRT,
RETRACTION OF THE BOSSES FROM THE SKIRT PERIPHERY, CONNECTION OF SUCH
BOSSES TO THE SKIRT WITH WEBS LATERALLY FLEXIBLE AND YET SO CARRIED
FROM THE HEAD AS TO SUPPORT THE LOAD UPON THE WRIST PIN WITH SUFFICIENT
STRENGTH AND RIGIDITY, AND TO UTILIZE THE MECHANICAL FORCE OF THE
CYLINDER WALL UPON THE SKIRT AND THE THERMAL EXPANSION OF THE BOSSES SO
AS TO COMPENSATE EVENLY AND FULLY FOR HEAD EXPANSION AND TO SECURE A
BALANCED FLEXIBILITY OF THE SKIRT WITH NO BENDING CONCENTRATION AT ANY
POINT THEREIN, DISCLOSES, WE THINK, A MERITORIOUS CONCEPT BEYOND THE
REACH OF THOSE SKILLED IN THE ART."  92 F.2D AT 334. 

UPON AN EXAMINATION OF THE GULICK APPLICATION BEFORE AMENDMENT AND
THE MAYNARD PATENT WE CONCLUDED, 305 U.S. 47, THAT NEITHER DESCRIBED OR
CLAIMED FLEXIBLE OR YIELDABLE WEBS AS AN ELEMENT IN THE PATENTED
INVENTIONS.  FOR THAT REASON ALONE WE HELD THAT, IF THE FLEXIBLE WEB
CONSTITUTED AN ESSENTIAL ELEMENT OF THE INVENTIONS, BOTH PATENTS FAILED
TO SATISFY THE REQUIREMENT OF THE STATUTE THAT THE PATENTEE DESCRIBE
HIS INVENTION SO THAT OTHERS MAY CONSTRUCT AND USE IT AFTER THE
EXPIRATION OF THE PATENT AND THAT IT "INFORM THE PUBLIC DURING THE LIFE
OF THE PATENT OF THE LIMITS OF THE MONOPOLY ASSERTED, SO THAT IT MAY BE
KNOWN WHICH FEATURES MAY BE SAFELY USED OR MANUFACTURED WITHOUT A
LICENSE AND WHICH MAY NOT," PERMUTIT CO. V. GRAVER CORP., 284 U.S. 52,
60; THAT CONSEQUENTLY THE PATENT MONOPOLY DID NOT EXTEND BEYOND THE
INVENTION DESCRIBED AND EXPLAINED BY THE PATENT AS THE STATUTE REQUIRES
AND COULD NOT BE ENLARGED BY AMENDMENT SO AS TO EMBRACE IN THE
INVENTION AN ELEMENT NOT DESCRIBED OR CLAIMED IN THE APPLICATION AS
FILED, AT LEAST WHEN ADVERSE RIGHTS OF THE PUBLIC HAD INTERVENED.  SEE
SCHRIBER-SCHROTH CO. V. CLEVELAND TRUST CO., SUPRA, 57. 

UPON THE REMAND THE COURT OF APPEALS HELD IN THE PRESENT SUIT,
SCHRIBER-SCHROTH CO. V. CLEVELAND TRUST CO., 108 F.2D 109, THAT THE
ELEMENTS OF THE COMBINATION DESCRIBED AND CLAIMED IN THE GULICK PATENT
BEFORE AMENDMENT AND IN THE MAYNARD PATENT WITHOUT INCLUDING THE
FLEXIBLE WEB ELEMENT WHICH WAS ADDED ONLY BY AMENDMENT TO THE GULICK
PATENT, DID NOT DISCLOSE INVENTION OVER THE PRIOR ART. BUT CONSIDERING
THAT THE FLEXIBLE WEB ELEMENT WHICH HAD NOT BEEN INCLUDED IN THE
COMBINATION PATENTED BY GULICK AND MAYNARD HAD BEEN DESCRIBED AND
CLAIMED IN THE JARDINE PATENT, IT RECALLED ITS MANDATE TO THE DISTRICT
COURT BY WHICH IT HAD DIRECTED DISMISSAL WITHOUT PREJUDICE OF THE SUIT
BROUGHT ON THAT PATENT.  SEE SCHRIBER-SCHROTH CO. V. CLEVELAND TRUST
CO., SUPRA, 112, 113.  UPON AN EXAMINATION OF THE JARDINE
SPECIFICATIONS AND CLAIMS IT FOUND THERE DESCRIBED AND CLAIMED THE
INVENTION WHICH IT HAD PREVIOUSLY FOUND IN GULICK AND MAYNARD, BUT
WHICH THIS COURT HAD FOUND THE PATENTEES HAD FAILED TO DESCRIBE AND
CLAIM IN THEIR APPLICATIONS. 

THE JARDINE CLAIMS, 1, 8 AND 11, WHICH IT SUSTAINED, RECITE THE WEBS
AS AN ELEMENT BUT DO NOT DESCRIBE THEM AS FLEXIBLE OR POINT TO
FLEXIBILITY AS AN ELEMENT IN THE INVENTION CLAIMED.  BUT IN THE
SPECIFICATIONS OF THE PATENT, WHICH SO FAR AS NOW MATERIAL APPEARED IN
JARDINE'S APPLICATION DESCRIBING THE INVENTION, HE MAKES SPECIFIC
REFERENCE TO THE WEBS CONSTRUCTED IN SUCH PROPORTIONS AS TO ENABLE THEM
TO "BEND" IN RESPONSE TO THE REACTION FORCE OF THE CYLINDER WALL ON THE
OUTER FACES OF THE GUIDE SEGMENTS AS THE PISTON EXPANDS, AND TO THE
COOPERATION OF THE "BENDING" WEB WITH THE THERMAL EXPANSION OF THE
GUIDE PART OF THE PISTON WITHOUT A CORRESPONDING INCREASE IN ITS OUTER
DIAMETER.  FN1  HE EXPLAINED THE PRINCIPLE OF HIS DEVICE SAYING, "I
HAVE FOUND THAT THESE DIFFICULTIES CAN BE OVERCOME BY CONSTRUCTING A
PISTON WITH ITS SKIRT OR GUIDE PORTION SUPPORTED AND SLOTTED OR DIVIDED
IN A MANNER TO PERMIT DEFORMATION AND DEFLECTION OF PARTS THEREOF
WITHOUT INTERFERING WITH THE PERFORMANCE OF THE ESSENTIAL FUNCTIONS OF
THE RESPECTIVE PARTS." 

READING SPECIFICATIONS AND CLAIMS TOGETHER, THE COURT OF APPEALS
INTERPRETED THE LATTER AS INCORPORATING THE ELEMENT OF WEB FLEXIBILITY
IN THE COMBINATION CLAIMED AND CONCLUDED THAT JARDINE HAD EXPLAINED AND
CLAIMED "THE PRINCIPLE OF OPERATION OF HIS MACHINE AND THE FLEXIBILITY
OF ITS WEBS."  IT SAID THAT "THE KNOWLEDGE THAT WAS NOT GULICK'S OR WAS
BY HIM CONCEALED IS CLEAR TO JARDINE AND BY HIM PROCLAIMED."  IT HELD
THE JARDINE PATENT VALID AND INFRINGED AS IT HAD FOUND GULICK INFRINGED
IN ITS EARLIER DECISION. 

WE GRANTED CERTIORARI, 309 U.S. 648, ON A PETITION WHICH RAISED,
AMONG OTHERS, THE QUESTION WHETHER THE COURT OF APPEALS HAD
MISINTERPRETED OR UNDULY LIMITED THIS COURT'S EARLIER DECISION IN THIS
CASE AND ITS DECISION IN PERMUTIT CO. V. GRAVER CORP., SUPRA, BY
REFUSING TO HOLD A PATENT INVALID WHERE A FEATURE FOUND TO BE AN
ESSENTIAL ELEMENT OF THE PATENTED COMBINATION WAS NOT MENTIONED IN THE
CLAIMS OF THE PATENT AND WAS IN FACT SURRENDERED DURING THE PROSECUTION
OF THE APPLICATION AND AFTER ADVERSE DECISIONS IN INTERFERENCES.  FN2 

THE CLAIMS OF A PATENT ARE ALWAYS TO BE READ OR INTERPRETED IN THE
LIGHT OF ITS SPECIFICATIONS, HOGG V. EMERSON, 11 HOW.  587; CARNEGIE
STEEL CO. V. CAMBRIA IRON CO., 185 U.S. 403; SMITH V. SNOW, 294 U.S. 1;
AND WE MAY ASSUME THAT IF IN THE PRESENT CASE THE SPECIFICATIONS AND
CLAIMS OF THE PATENT WERE TO BE INTERPRETED WITHOUT REFERENCE TO ITS
FILE WRAPPER HISTORY, THE WEBS REFERRED TO IN THE CLAIMS ARE THE WEBS
DESCRIBED IN THE SPECIFICATIONS AS CAPABLE OF BENDING IN COOPERATION
WITH THE SLOTTED PISTON GUIDES OR SKIRTS SO AS TO COMPENSATE FOR
THERMAL EXPANSION AND SO SUPPLY THE ELEMENT OF WEBS LATERALLY FLEXIBLE
WHICH WAS WANTING TO GULICK AND TO MAYNARD.  BUT THE PARTICULAR
INVENTION TO WHICH THE PATENTEE HAS MADE CLAIM IN CONFORMITY TO THE
STATUTE IS NOT ALWAYS TO BE ASCERTAINED FROM AN INSPECTION OF THE
SPECIFICATIONS AND CLAIMS OF THE PATENT ALONE.  WHERE THE PATENTEE IN
THE COURSE OF HIS APPLICATION IN THE PATENT OFFICE HAS, BY AMENDMENT,
CANCELLED OR SURRENDERED CLAIMS, THOSE WHICH ARE ALLOWED ARE TO BE READ
IN THE LIGHT OF THOSE ABANDONED AND AN ABANDONED CLAIM CANNOT BE
REVIVED AND RESTORED TO THE PATENT BY READING IT BY CONSTRUCTION INTO
THE CLAIMS WHICH ARE ALLOWED.  HENCE, PETITIONERS ARGUE, THE EFFECT TO
BE GIVEN TO THE OMISSION FROM THE JARDINE CLAIMS OF ANY REFERENCE TO
THE FLEXIBLE WEB FEATURE, WHICH THE COURT BELOW THOUGHT DISTINGUISHED
HIS ALLEGED INVENTION FROM THAT OF THE GULICK AND MAYNARD PATENTS,
CANNOT RIGHTLY BE DETERMINED WITHOUT SOME EXAMINATION OF THE CLAIMS
POINTING TO FLEXIBLE WEBS AS A FEATURE OF HIS INVENTION, WHICH JARDINE
ADDED TO HIS APPLICATION BY AMENDMENT AND LATER SURRENDERED AS A RESULT
OF INTERFERENCE PROCEEDINGS IN THE PATENT OFFICE. 

THE JARDINE PATENT WAS DESCRIBED AS OF THE SLIPPER TYPE OF PISTON
ALTHOUGH NOT LIMITED TO THAT TYPE, THE SKIRT CONSISTING OF TWO
SEPARATED PARTS CIRCUMFERENTIALLY SEPARATED FROM THE PISTON HEAD,
SUPPORTED BY THE WEBS WHICH CONNECT THE SKIRT OR SLIPPERS WITH THE
PISTON HEAD AND SUPPORT WRIST PIN BOSSES FROM WHICH THE SKIRT IS
RETRACTED OR CUT AWAY.  THE CLAIMS OF THE JARDINE APPLICATION AS FILED
OR LATER AMENDED AND ULTIMATELY ALLOWED MADE NO REFERENCE TO THE WEBS
AS FLEXIBLE, YIELDING, OR RESILIENT, WHICH THE COURT OF APPEALS FOUND,
WHEN COOPERATING WITH OTHER STRUCTURAL ELEMENTS, TO BE A DISTINGUISHING
FEATURE OF JARDINE'S INVENTION.  CLAIM 8 OF THE JARDINE PATENT, WHICH
IS TYPICAL OF THE THREE WHICH THE COURT BELOW SUSTAINED, READS: 

"IN A PISTON FOR AN INTERNAL COMBUSTION ENGINE, THE COMBINATION OF A
HEAD HAVING A CYLINDRICAL RING FLANGE, OPPOSITELY DISCLOSED WEBS
INTEGRAL WITH THE FLANGE AND CARRYING DIAMETRICALLY OPPOSITE PISTON PIN
BOSSES, A SKIRT INTEGRAL WITH SAID WEBS AND CUT AWAY TO EXPOSE THE
SIDES OF SAID WEBS AND SEPARATED FROM THE RING FLANGE BY
CIRCUMFERENTIAL SLITS AND PROVIDED WITH A LONGITUDINAL SLIT DISPOSED
BETWEEN THE ENDS OF THE WEBS." 

CLAIMS 5 AND 6 REFER TO THE "SKIRT PORTION CUT AWAY FROM THE HEAD TO
EXPOSE THE BOSSES." 

WHILE THE APPLICATION WAS PENDING JARDINE AMENDED HIS CLAIMS SO AS TO
SUPPLY THIS OMISSION.  IN VARIOUS FORMS HE CLAIMED THE PISTON HEAD,
SKIRT AND WEB COMBINATION WITH PISTON HEAD SEPARATED AT ITS FLANGE OR
PERIPHERY FROM THE SKIRT, THE SKIRT SLOTTED OR SEPARATED INTO PARTS AND
CONNECTED WITH THE HEAD BY THE WEBS, VARIOUSLY DESCRIBED AS "YIELDING
RIBS," "RESILIENT ARMS," "SKIRT CARRIERS  ...  SUSCEPTIBLE OF BEING
SLIGHTLY FLEXED RADIALLY" OR AS "JOINING MEANS BEING RESILIENTLY
YIELDABLE," OR AS "MEANS FOR YIELDINGLY CONNECTING THE SAID SKIRT
INTO INTERFERENCE WITH HARTOG, NO. 1,842,022, APPLIED FOR FEBRUARY 16,
1920, ALLOWED JANUARY 19, 1932, AND IN SOME INSTANCES WITH GULICK AND
WITH LONG, NO. 1,872,772, APPLIED FOR MARCH 7, 1919, ALLOWED AUGUST 23,
1932, WERE REJECTED BY THE PATENT OFFICE.  JARDINE THEN WITHDREW ALL OF
THESE AMENDMENTS.  OF THESE AMENDED AND CANCELLED CLAIMS, CLAIM 18(19
E) IS TYPICAL.  IT READS AS FOLLOWS: 

"IN A PISTON OF THE CLASS DESCRIBED, A CUP-LIKE HEAD COMPRISING A
PRESSURE RECEIVING END AND A WALL PORTION, A SKIRT CIRCUMFERENTIALLY
DISCONNECTED FROM THE WALL PORTION OF THE HEAD AND DIVIDED FROM END TO
END, AND SKIRT CARRIERS CONNECTING SAID SKIRT TO THE PRESSURE RECEIVING
END, SAID SKIRT CARRIERS BEING DISCONNECTED FROM THE WALL PORTION OF
THE HEAD AND SUSCEPTIBLE OF BEING SLIGHTLY FLEXED RADIALLY."    UPON
COMPARISON OF THE WITHDRAWN CLAIM WITH CLAIM 8 OF THE PATENT AS ALLOWED
IT WILL BE OBSERVED THAT BOTH ARE COMBINATION CLAIMS FOR A PISTON
HAVING A HEAD, A DIVIDED OR SLOTTED SKIRT DISCONNECTED FROM THE WALL
PORTION OF THE HEAD AND CONNECTED WITH THE HEAD BY RIBS, WEBS OR SKIRT
CARRIERS.  THE ONLY MATERIAL DIFFERENCE IN VIEW OF WHAT HAS BEEN SAID
TO BE THE INVENTION IS THE STATEMENT IN THE WITHDRAWN CLAIMS THAT THE
SKIRT CARRIERS (WEBS) ARE "SUSCEPTIBLE OF BEING SLIGHTLY FLEXED
RADIALLY" OR THE LIKE.  WHATEVER WOULD HAVE BEEN THE PROPER
CONSTRUCTION OF THE CLAIMS AS ALLOWED, READ IN THE LIGHT OF THE
SPECIFICATIONS ALONE, THERE BEING NO AMENDMENTS, THE QUESTION NOW
PRESENTED IS WHETHER IN VIEW OF THE AMENDMENTS AND THEIR WITHDRAWAL THE
PATENT CAN RIGHTLY BE CONSTRUED AS INCLUDING THE FLEXIBLE WEBS IN THE
CLAIM ALLOWED. 

IN ADDITION TO THE FACT OF THE CANCELLATION OF THE ONLY CLAIMS
SPECIFYING FLEXING WEBS OR THEIR EQUIVALENTS AS A FEATURE OF THE
INVENTION, IT IS TO BE NOTED THAT AT NO TIME DURING THE PROSECUTION OF
THE JARDINE APPLICATION DID HE URGE THAT HE WAS THE INVENTOR OF A
PISTON HAVING FLEXIBLE WEBS.  BEFORE THE INTERFERENCES AND IN
DISTINGUISHING HIS INVENTION FROM THE RICARDO PISTON, JARDINE URGED AS
HIS ONLY ADVANCE OVER RICARDO THE ADDITION OF THE SLOTTED SKIRT WHICH
"CHANGES THE STRUCTURE AND THE RESISTANCE TO A DISPOSAL OF THE FORCES
WITHIN AND WITHOUT THE PISTON WHEN THE PISTON IS IN USE," ALTHOUGH IN
THIS LITIGATION IT IS CONTENDED THAT THE RICARDO PATENT DID NOT
DISCLOSE FLEXING WEBS.  IN SUBMITTING THE FINAL AMENDMENT CANCELLING
THE FLEXIBLE WEB CLAIMS IN INTERFERENCE AND PRESENTING THE CLAIMS 8 AND
11 OF THE JARDINE PATENT HELD VALID BY THE COURT BELOW, THERE IS NO
MENTION OF FLEXING WEBS, THE FEATURES STRESSED BEING IN THE CASE OF
CLAIM 8 THAT THE WEBS ARE INTEGRAL WITH THE RING FLANGE AND IN THE CASE
OF CLAIM 11 THAT THE WEBS ARE INTEGRAL WITH THE FLANGE AND EXTEND
"CONVERGINGLY INWARDLY" THEREFROM. 

IT IS A RULE OF PATENT CONSTRUCTION CONSISTENTLY OBSERVED THAT A
CLAIM IN A PATENT AS ALLOWED MUST BE READ AND INTERPRETED WITH
REFERENCE TO CLAIMS THAT HAVE BEEN CANCELLED OR REJECTED, AND THE
CLAIMS ALLOWED CANNOT BY CONSTRUCTION BE READ TO COVER WHAT WAS THUS
ELIMINATED FROM THE PATENT.  SHEPARD V. CARRIGAN, 116 U.S. 593; SUTTER
V. ROBINSON, 119 U.S. 530; ROEMER V. PEDDIE, 132 U.S. 313; PHOENIX
CASTER CO. V. SPIEGEL, 133 U.S. 360; HUBBELL V. UNITED STATES, 179 U.S.
77; WEBER ELECTRIC CO. V. E.H. FREEMAN ELECTRIC CO., 256 U.S. 668;
I.T.S. RUBBER CO. V. ESSEX RUBBER CO., 272 U.S. 429, 443.  THE PATENTEE
MAY NOT, BY RESORT TO THE DOCTRINE OF EQUIVALENTS, GIVE TO AN ALLOWED
CLAIM A SCOPE WHICH IT MIGHT HAVE HAD WITHOUT THE AMENDMENTS, THE
CANCELLATION OF WHICH AMOUNTS TO A DISCLAIMER.  SMITH V. MAGIC CITY
CLUB, 282 U.S. 784, 790; WEBER ELECTRIC CO. V. E.H. FREEMAN ELECTRIC
CO., SUPRA, 677, 678; I.T.S. RUBBER CO. V. ESSEX RUBBER CO., SUPRA,
444.  THE INJURIOUS CONSEQUENCES TO THE PUBLIC AND TO INVENTORS AND
PATENT APPLICANTS IF PATENTEES WERE THUS PERMITTED TO REVIVE CANCELLED
OR REJECTED CLAIMS AND RESTORE THEM TO THEIR PATENTS ARE MANIFEST.  SEE
LEGGETT V. AVERY, 101 U.S. 256, 259. 

TRUE, THE RULE IS MOST FREQUENTLY INVOKED WHEN THE ORIGINAL AND
CANCELLED CLAIM IS BROADER THAN THAT ALLOWED, BUT THE RULE AND THE
REASON FOR IT ARE THE SAME IF THE CANCELLED OR REJECTED CLAIM BE
NARROWER.  MORGAN ENVELOPE CO. V. ALBANY PAPER CO., 152 U.S. 425, 429;
WM. B. SCAIFE & SONS CO. V. FALLS CITY WOOLEN MILLS, 209 F. 210, 213;
SEE COMPUTING SCALE CO. V. AUTOMATIC SCALE CO., 204 U.S. 609, 620, 621;
CF. IN CASE OF DISCLAIMER ALTOONA PUBLIX THEATRES, INC. V. TRI-ERGON
CORP., 294 U.S. 477, 492, 493. 

IN VIEW OF THE PRIOR ART WHICH PRECLUDED, AS THE COURT BELOW HELD,
INVENTION IN GULICK AND MAYNARD, ABSENT THE FLEXIBLE WEBS, AND IN
JARDINE WITHOUT THE INCLUSION OF THE SURRENDERED FLEXIBLE WEB FEATURE
IN THE PATENTED COMBINATION, IT DOES NOT APPEAR WHY THE PATENT OFFICE
ALLOWED THE BROAD CLAIMS AFTER REJECTING THE NARROWER ONES.  BUT IN ANY
CASE THE PATENTEE, HAVING ACQUIESCED IN THEIR REJECTION, IS NO LONGER
FREE TO GAIN THE SUPPOSED ADVANTAGE OF THE REJECTED CLAIMS BY A
CONSTRUCTION OF THE ALLOWED CLAIMS AS EQUIVALENT TO THEM.  MORGAN
ENVELOPE CO. V. ALBANY PAPER CO., SUPRA. 

THE APPLICATION OF THAT PRINCIPLE IN THE PRESENT CASE IS NOT
FORECLOSED AS RESPONDENT SUGGESTS BECAUSE THE COMBINATION OF ELEMENTS
SURRENDERED DIFFERS FROM THE COMBINATION WHICH THE COURT BELOW FOUND TO
BE PRESERVED IN THE ALLOWED CLAIMS AND IN WHICH IT FOUND INVENTION. 
THE COMBINATION WHICH IT FOUND TO BE PRESERVED IN JARDINE'S CLAIMS WAS
"A COMBINATION WITH BALANCED SKIRT FLEXIBILITY DUE TO CO-OPERATION OF
LONGITUDINAL AND VERTICAL SLOTTING WITH FLEXING WEBS SUPPORTING
RETRACTED BOSSES AND CONNECTED TO A SKIRT THEREBY MADE RESPONSIVE TO
PHYSICAL COMPRESSION AND THERMAL EXPANSION SO AS TO PERMIT OF MINUTE
CLEARANCES BETWEEN PISTON AND CYLINDER, A CONCEPT PERCEIVED IN GULICK
AS AMENDED AND MINUS AMENDMENT NO LONGER PERCEIVED."  108 F.2D 114. 

BUT THE AMENDED AND CANCELLED CLAIMS ARE TO BE READ IN THE LIGHT OF
THE SPECIFICATIONS.  SO READ, CANCELLED CLAIM 18(19 E), ALREADY QUOTED,
CLAIMS A PISTON "OF THE CLASS DESCRIBED" AND EMBRACES THE COMBINATION
IN WHICH THE COURT BELOW FOUND INVENTION, LONGITUDINAL AND VERTICAL
SLOTTING, FLEXING WEBS SUPPORTING "RETRACTED BOSSES" AND CONNECTED TO A
SKIRT THEREBY MADE RESPONSIVE TO PHYSICAL COMPRESSION AND THERMAL
EXPANSION.  TRUE THE AMENDED AND CANCELLED CLAIM AND ALLOWED CLAIMS 1,
8 AND 11 DID NOT SPECIFICALLY MENTION RETRACTION OF THE SKIRT FROM THE
BOSSES.  NOR DID EITHER THE AMENDED CLAIMS OR THE ALLOWED CLAIMS
SPECIFY BALANCED SKIRT FLEXIBILITY DUE TO COOPERATION OF THE PARTS. 
FOR THEM RECOURSE MUST BE HAD TO THE SPECIFICATIONS AND DRAWINGS IN
WHICH THE COURT BELOW FOUND THE ELEMENTS OF THE INVENTION WHICH IT
DESCRIBED BUT IN WHICH, ABSENT THE FLEXIBLE WEB ELEMENT, IT FOUND NO
INVENTION.  IN VIEW OF SUCH WANT OF INVENTION AND OF THE PRIOR ART, THE
ONLY MATERIAL DIFFERENCE BETWEEN THE AMENDED AND THE ALLOWED CLAIMS IS
THE PRESENCE IN THE FORMER OF THE FLEXIBLE WEB ELEMENT AND, IN
CONSEQUENCE OF THE SURRENDER OF THE FORMER PARTICULARIZING THE FLEXIBLE
WEB FEATURE OF THE ALLEGED INVENTION, THE LATTER CANNOT BE CONSTRUED AS
INCLUDING THAT FEATURE. 

WE HAVE NO OCCASION TO DETERMINE WHETHER, IN VIEW OF THE PRIOR ART,
THE JARDINE PATENT DISCLOSED INVENTION IF THE FLEXIBLE WEB FEATURE HAD
NOT BEEN SURRENDERED.  WITHOUT IT THE COURT BELOW CONCLUDED THAT
JARDINE, LIKE GULICK AND MAYNARD, DISCLOSED NO INVENTION.  IT REJECTED
THE SCHMIEDEKNECHT PATENT, NO. 1,256,265, ONE OF THOSE IN SUIT, ON LIKE
GROUNDS, SAYING, "IT DISCLOSES NO WEB FLEXIBILITY CO-OPERATING WITH
OTHER ELEMENTS OF RESILIENCY TO ACHIEVE THE BALANCED FLEXIBILITY
PERCEIVED IN JARDINE ON THE BASIS OF WHICH ALONE THE LATTER IS THOUGHT
TO BE VALID ...  "  WE ACCEPT THIS CONCLUSION AS SUPPORTED BY THE
EVIDENCE OF THE PRIOR ART IN THE MASTER'S FINDINGS AND THE ONLY ONE
WHICH COULD BE REACHED CONSISTENTLY WITH THE DECISION BELOW WITH
RESPECT TO THE GULICK AND MAYNARD PATENTS WHICH STAND ADJUDGED AS
INVALID.  REVERSED. 

FN1  AN EXCERPT FROM THE JARDINE SPECIFICATIONS READS: 

"THE WEBS 6 AND GUIDE SEGMENTS PREFERABLY ARE SO DESIGNED THAT THIS
DISPLACEMENT OF THE SEGMENTS 10, 10A, IS PERMITTED BY VIRTUE OF A
BENDING OF THE WEBS 6 AT POINTS REMOTE FROM THE GUIDE SEGMENTS.  TO
THIS END, AS SHOWN IN FIG. 4, THE THICKNESS OF THE GUIDE SEGMENTS IS
INCREASED TOWARD THE WEBS 6 AND THE WEBS 6 ARE DECREASED IN THICKNESS
FROM THE GUIDE PORTIONS INWARD TOWARD THE BOSSES TO POINTS IN LINE WITH
THE INNER ENDS OF THE SLOTS 11A.  THIS GIVES IN EFFECT A CANTILEVER
STRUCTURE WEAKEST AT ITS SUPPORT,  ...  THUS THE REACTION FORCE OF THE
CYLINDER WALL ON THE OUTER FACES OF THE GUIDE SEGMENTS AS THE PISTON
EXPANDS TENDS TO CAUSE BENDING OF THE WEBS 6 ALONG SAID LINES 13.  DUE
TO THE BENDING OF THE WEB SECTIONS 6 AND THE FORCING TOGETHER OF EACH
PAIR OF SEGMENTS, THE GUIDE PART OF THE PISTON MAY UNDERGO A
CONSIDERABLE THERMAL EXPANSION WITHOUT A CORRESPONDING INCREASE IN THE
OUTER DIAMETER THEREOF AND THUS A SMALL INITIAL CLEARANCE CAN BE USED
WITHOUT DANGER OF SCORING OR SEIZURE OF THE PISTON." 

FN2  A QUESTION RAISED BY THE PETITION FOR CERTIORARI WAS WHETHER
RESPONDENT COULD PROSECUTE ITS SUIT FOR INJUNCTION IN THE ABSENCE, AS A
PARTY, OF THE LICENSEE TO WHOM RESPONDENT HAD GRANTED THE EXCLUSIVE
RIGHT TO MANUFACTURE, UNDER THE PATENTS IN QUESTION, ALUMINUM PISTONS,
THE ONLY FIELD IN WHICH CONCEDEDLY THE PATENT HAS PRESENT PRACTICAL
UTILITY.  THE SPECIAL MASTER FOUND AGAINST PETITIONERS ON THIS POINT
AND NO EXCEPTIONS WERE TAKEN TO HIS FINDING, NOR WAS THE POINT ARGUED
WHEN THE CASE WAS FIRST BEFORE THE CIRCUIT COURT OF APPEALS AND THIS
COURT.  THE COURT BELOW THOUGHT THAT IN VIEW OF THESE CIRCUMSTANCES THE
RIGHT OF RESPONDENTS TO AN INJUNCTION WAS NO LONGER AN ISSUE.  WE DO
NOT HERE PASS ON THE QUESTION SINCE WE FIND THAT, IN ANY CASE, FOR
REASONS APPEARING IN THE OPINION, NO INJUNCTION SHOULD ISSUE. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :












WEST V. A.T. & T. CO., 311 U.S. 223 


NOS. 44 AND 45.  ARGUED NOVEMBER 13, 1940.  - DECIDED DECEMBER 9, 1940. 
- 108 F.2D 347, REVERSED. 


1.  IN A SUIT IN A FEDERAL COURT FOR EQUITABLE RELIEF IN PROTECTION OF
LEGAL RIGHTS GROWING OUT OF AN UNLAWFUL TRANSFER OF STOCK BY A
CORPORATION, THE STATE LAWS DEFINING THOSE RIGHTS ARE THE RULES OF
DECISION.  P. 236. 

2.  A RULE ANNOUNCED AND APPLIED BY STATE COURTS AS THE LAW OF THE
STATE, THOUGH NOT PASSED ON BY THE HIGHEST STATE COURT, MAY NOT BE
REJECTED BY A FEDERAL COURT BECAUSE IT THINKS THAT THE RULE IS UNSOUND
IN PRINCIPLE OR THAT ANOTHER IS PREFERABLE.  P. 236. 

3.  IN DECIDING LOCAL QUESTIONS IT IS THE DUTY OF THE FEDERAL COURT
TO ASCERTAIN FROM ALL AVAILABLE DATA WHAT THE STATE LAW IS AND APPLY
IT, HOWEVER SUPERIOR A DIFFERENT RULE MAY APPEAR FROM THE VIEWPOINT OF
GENERAL LAW AND HOWEVER MUCH THE STATE RULE MAY HAVE DEPARTED FROM
PRIOR DECISIONS OF THE FEDERAL COURTS.  P. 237. 

4. WHERE AN INTERMEDIATE STATE APPELLATE COURT RESTS ITS CONSIDERED
JUDGMENT UPON THE RULE OF LAW WHICH IT ANNOUNCES, THAT IS A DATUM FOR
ASCERTAINING STATE LAW WHICH IS NOT TO BE DISREGARDED BY A FEDERAL
COURT UNLESS IT IS CONVINCED BY OTHER PERSUASIVE DATA THAT THE HIGHEST
COURT OF THE STATE WOULD DECIDE OTHERWISE.  P. 237. 

THIS IS THE MORE SO WHERE, AS IN THIS CASE, THE HIGHEST STATE COURT
HAS REFUSED TO REVIEW THE LOWER COURT'S DECISION, RENDERED IN ONE PHASE
OF THE VERY LITIGATION WHICH IS BEING PROSECUTED BY THE SAME PARTIES
BEFORE THE FEDERAL COURT. 

5.  THE OHIO COUNTY COURT OF APPEALS, BY A JUDGMENT WHICH THE SUPREME
COURT OF THE STATE DECLINED TO REVIEW, DECIDED THAT AN ACTION AGAINST A
CORPORATION FOR DAMAGES RESULTING FROM ITS ISSUE OF A CERTIFICATE FOR
SHARES OF ITS STOCK IN THE NAME OF ONE WHO WAS A LIFE TENANT OF THE
STOCK, WITHOUT DISCLOSING ON THE FACE OF THE CERTIFICATE THAT THE
STOCKHOLDER WAS A LIFE TENANT OR THE INTEREST OF THE REMAINDERMEN,
FOLLOWED BY A WRONGFUL TRANSFER OF THE STOCK TO A THIRD PERSON, WAS
PREMATURE BECAUSE NO DEMAND HAD BEEN MADE ON THE CORPORATION TO
REINSTATE THE PLAINTIFFS' RIGHTS IN THE STOCK AND BECAUSE THE
CORPORATION HAD NOT REFUSED THIS IN ADVANCE OF THE SUIT.  IN A SECOND
SUIT BROUGHT IN THE FEDERAL COURT AFTER A SUFFICIENT DEMAND HAD BEEN
MADE, IN WHICH THE SAME PLAINTIFFS SOUGHT EQUITABLE RELIEF AND DAMAGES
FROM THE SAME CORPORATION, THE CIRCUIT COURT OF APPEALS, DECLINING TO
FOLLOW THE RULING OF THE STATE COURT OF APPEALS, HELD THAT A DEMAND WAS
NOT ESSENTIAL - THAT THE CAUSE OF ACTION ACCRUED WHEN THE STOCK WAS
ISSUED TO THE LIFE TENANT AND, COUNTING FROM THAT TIME, WAS BARRED BY A
STATUTE OF LIMITATIONS, OR LACHES.  HELD: 

(1)  NO REASON APPEARS FOR SUPPOSING THAT, IF THE SECOND SUIT HAD
BEEN BROUGHT IN A STATE COURT, THE STATE COURT OF APPEALS WOULD DEPART
FROM ITS PREVIOUS RULING OR THAT THE SUPREME COURT OF THE STATE WOULD
GRANT THE REVIEW WHICH IT WITHHELD BEFORE.  P. 238. 

(2)  THE LAW THUS ANNOUNCED AND APPLIED BY THE STATE COURT OF APPEALS
IS THE LAW OF THE STATE, APPLICABLE TO A CASE BETWEEN THE SAME PARTIES
IN THE FEDERAL COURT, AND THE FEDERAL COURT IS NOT FREE TO APPLY A
DIFFERENT RULE, HOWEVER DESIRABLE IT MAY BELIEVE IT TO BE, AND EVEN
THOUGH IT MAY THINK THAT THE STATE SUPREME COURT MAY ESTABLISH A
DIFFERENT RULE IN SOME FUTURE LITIGATION.  P. 238. 

(3)  SINCE THE CAUSE OF ACTION UNDER THE OHIO LAW DID NOT ARISE UNTIL
DEMAND, WHICH WAS EITHER WHEN THE SUIT WAS BROUGHT IN THE STATE COURT
OR WHEN THE FORMAL DEMAND WAS MADE, THE STATUTE OF LIMITATIONS DID NOT
BEGIN TO RUN UNTIL ONE OR THE OTHER OF THOSE DATES.  P. 238. 

(4)  NO SPECIAL CIRCUMSTANCES ARE SHOWN EFFECTIVE UNDER OHIO LAW TO
LIMIT THE TIME OF DEMAND OR SHORTEN THE STATUTORY PERIOD AFTER DEMAND;
THE FINDINGS OF THE DISTRICT COURT THAT THE PLAINTIFFS WERE NOT
ESTOPPED OR GUILTY OF LACHES WERE SUPPORTED BY EVIDENCE AND SHOULD NOT
BE DISTURBED.  P. 239. 

WEST ET AL. V. AMERICAN TELEPHONE AND TELEGRAPH CO. 

ON WRITS OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT. 

CERTIORARI, 310 U.S. 618, TO REVIEW A DECREE OF THE CIRCUIT COURT OF
APPEALS WHICH (UPON SEPARATE APPEALS BY THE PETITIONERS AND RESPONDENT
HERE, BUT ON A SINGLE RECORD) REVERSED A DECREE OF THE DISTRICT COURT
REQUIRING THE RESPONDENT CORPORATION TO PROCURE SHARES OF ITS COMMON
STOCK TO BE HELD IN A TRUST DURING THE LIFE OF A DECEDENT'S WIDOW AND
TO BE ULTIMATELY DISTRIBUTED TO REMAINDERMEN, AS DIRECTED BY THE WILL. 
JURISDICTION WAS BY DIVERSITY OF CITIZENSHIP. 

MR. H. L. DEIBEL, WITH WHOM MR. ORLIN F. GOUDY WAS ON THE BRIEF, FOR
PETITIONERS. 

THE DECISION OF THE STATE COURT ON THE ISSUE OF DEMAND IS RES
JUDICATA IN STATE AND FEDERAL COURTS.  BLAIR V. COMMISSIONER OF
INTERNAL REVENUE, 300 U.S. 5; DE SOLLAR V. HANSCOME, 158 U.S. 216;
FREEMAN ON JUDGMENTS, 5TH ED., SECS. 745, 1465; NORTH CAROLINA R. CO.
V. STORY, 268 U.S. 288; MITCHELL V. BANK, 180 U.S. 471. 

THE DECISION OF THE STATE COURT CREATES A RIGHT WHICH IS PROTECTED BY
THE FIFTH AMENDMENT. 

THE LAW OF OHIO REQUIRES DEMAND, AND THE FEDERAL COURTS ARE BOUND BY
THE LAW OF THE STATE, STATUTORY OR COMMON LAW, IN DIVERSITY OF
CITIZENSHIP CASES.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64; RUHLIN V. NEW
YORK LIFE INS. CO., 304 U.S. 202; ROSENTHAL V. NEW YORK LIFE INS. CO.,
304 U.S. 263; LYON V. MUTUAL BENEFIT ASSN., 305 U.S. 484, 489; CITIES
SERVICE OIL CO. V. DUNLAP, 308 U.S. 208; MARTIN V. COBB, 110 F.2D 159,
163; ERIE R. CO. V. HILT, 247 U.S. 97; BURNS MORTGAGE CO. V. FRIED, 292
U.S. 487. 

FEDERAL COURTS ARE BOUND TO DECIDE A CASE AS THEY THINK THE STATE
COURTS WOULD DECIDE IT, AND NOT AS THEY THINK THE STATE COURTS SHOULD
DECIDE IT. 

IT WOULD BE ARBITRARY TO HAVE REGARD ONLY FOR THE ADJUDICATIONS OF
THE HIGHEST STATE COURT. 

IF IT BE THE CORRECT DOCTRINE THAT THE DECISIONS OF THE HIGHEST COURT
ONLY ARE THE STATE LAW, THE JUDGMENT BELOW IS NEVERTHELESS ERRONEOUS,
BECAUSE THE SUPREME COURT OF OHIO HAS EXPRESSLY HELD DEMAND
PREREQUISITE IN ACTIONS BY SHAREHOLDERS OF CORPORATIONS FOR RECOGNITION
OF THEIR RIGHTS AND FOR MESNE DIVIDENDS.  STEVERDING V. CLEVELAND CO
OPERATIVE STOVE CO., 121 OHIO ST. 250. 

WHETHER THE PETITIONERS ARE REGARDED AS REMAINDERMEN, OR AS ABSOLUTE
OWNERS, THEY ARE SEEKING TO RESTORE THEIR RIGHTS IN THE SHARES, AND THE
PRINCIPLE OF THE STEVERDING CASE SHOULD BE APPLIED.  CF., CLEVELAND &
MAHONING R. CO. V. ROBBINS, 35 OHIO ST. 483. 

FAILURE OF THE STATE SUPREME COURT TO ORDER CERTIFICATION IS IN SOME
DEGREE AN APPROVAL OF THE DECISION OF THE STATE COURT OF APPEALS, AND
LENDS IT PARTIAL SANCTION, AND TO THIS EXTENT IS THE SUPREME COURT'S
PRONOUNCEMENT OF THE LAW. 

ONLY A FRACTION OF THE CASES LITIGATED IN THE OHIO NISI PRIUS COURTS
AND REVIEWED IN THE COURT OF APPEALS, REACH THE SUPREME COURT.  THE
HIGHEST COURT HAS ABSOLUTE AND ARBITRARY DISCRETION IN RULING ON
MOTIONS TO CERTIFY; IT MAY CERTIFY IN ANY CASE, AND FROM ITS
CONCLUSIONS THERE IS NO APPEAL.  THE JUDGMENTS OF THE COURT OF APPEALS
THEREFORE ARE USUALLY FINAL.  THE CONSTITUTION PROVIDES THEY "SHALL BE
FINAL IN ALL CASES," WITH NAMED EXCEPTIONS. 

ALTHOUGH THE OHIO COURT OF APPEALS CAN REVIEW ONLY THE CASES THAT ARE
TRIED IN THE LOWER COURTS OF ITS DISTRICT, AS PRESCRIBED BY
CONSTITUTIONAL PROVISION, IT HAS STATE-WIDE JURISDICTION IN SOME CASES,
E.G. IN QUO WARRANTO. 

THE FACT IS THAT NO COURT IS BOUND BY ANY DECISION IN THE STATE OF
OHIO, WHETHER RENDERED BY A LOW COURT OR A HIGH COURT.  A NISI COURT
MAY WITH ENTIRE IMPUNITY DISREGARD AND OVERRULE THE JUDGMENTS OF EVEN
THE SUPREME COURT IN OTHER CASES.  AND OCCASIONALLY, ON FURTHER
EXAMINATION, THE SUPREME COURT CONCURS.  STARE DECISIS DOES NOT BIND A
COURT TO FOLLOW EVEN ITS OWN PRIOR DECISIONS.  THERE IS NO BINDING
FORCE IN THIS DOCTRINE EXCEPT THAT THE PUBLIC INTEREST REQUIRES
CERTAINTY AND UNIFORMITY.  KEARNEY V. BUTTLES, 1 OHIO ST. 362, 366;
STATE V. YATES, 66 OHIO ST. 546. 

BUT THE DECISIONS OF THE OHIO COURTS OF APPEALS ARE OF IMPORTANCE IN
ALL THE COURTS OF THE STATE, AND DECLARE THE LAW OF OHIO, IN THE
ABSENCE OF ADVERSE PRONOUNCEMENTS BY THE SUPREME COURT, AND NOT MERELY
THE LAW OF THEIR DISTRICTS. 

THE ONLY SOUND RULE IN DIVERSITY OF CITIZENSHIP CASES IS, THAT THE
FEDERAL COURTS SHOULD DECIDE AS THEY THINK THE STATE COURTS WOULD
DECIDE IN THE SAME CASE.  ALL THE REASONING OF ALL THE STATE TRIBUNALS
MAY BE SCRUTINIZED.  THAT IS DONE IN THE STATE COURTS, AND SHOULD BE
DONE IN THE FEDERAL COURTS. 

SINCE DEMAND WAS REQUIRED, THE ACTION CAN NOT BE BARRED BY ANY
STATUTE OF LIMITATIONS.  EVEN IF DEMAND WERE NOT NECESSARY, THE ACTION
WOULD NOT BE BARRED. 

THE APPELLANTS ARE NOT BARRED BY LACHES. 

THE UNAUTHORIZED SALE OF THE STOCK BY THE LIFE TENANT TERMINATED HER
LIFE ESTATE, AND ACCELERATED ALL RIGHTS IN, AND ACCRUING FROM, THE
STOCK TO THE REMAINDERMEN AS OF THE TIME OF THE SALE.  AND THE SALE,
HAVING BEEN MADE POSSIBLE BY THE WRONGFUL ACT OF RESPONDENT, IS TO BE
LAID AT RESPONDENT'S DOOR, AS OF THE TIME IT RECOGNIZED THE SALE,
CANCELLED THE WEST CERTIFICATE AND ISSUED A NEW CERTIFICATE TO A THIRD
PERSON. 

A CORPORATION MUST RESPOND TO SHAREHOLDERS FOR LOSSES RESULTING FROM
UNAUTHORIZED AND WRONGFUL TRANSFERS. 

EQUITY WILL AFFORD COMPLETE RELIEF, INCLUDING DAMAGES. 

MR. WILLIAM B. COCKLEY FOR RESPONDENT. 

THE DEFENDANT WAS NOT NEGLIGENT IN TRANSFERRING ITS STOCK WITHOUT
LIMITATION.  THIS ACTION IS BARRED BY THE STATUTE OF LIMITATIONS, BY
LACHES, AND BY THE FINAL JUDGMENT OF THE OHIO COURT OF APPEALS. 

THE OPINION OF THE OHIO COURT OF APPEALS IS A MISAPPLICATION OF WELL
SETTLED OHIO LAW. 

THE REFUSAL OF THE OHIO SUPREME COURT TO GRANT THE PLAINTIFFS' MOTION
TO CERTIFY DID NOT IMPLY APPROVAL OF THE OPINION OF THE OHIO COURT OF
APPEALS. 

THE OPINION OF THE OHIO COURT OF APPEALS SHOULD NOT BE CONSIDERED
BINDING ON THE FEDERAL COURTS.  THE RULE OF ERIE R. CO. V. TOMPKINS,
304 U.S. 64, 78 AND OTHER DECISIONS OF THIS COURT IS THAT THE LAW OF A
STATE MUST BE ESTABLISHED BY ITS LEGISLATURE OR BY ITS HIGHEST COURT. 
LYONS V. MUTUAL BENEFIT HEALTH & ACCIDENT ASSN., 305 U.S. 484, 489-490;
WICHITA ROYALTY CO. V. CITY NATIONAL BANK, 306 U.S. 103, 107; RUSSELL
V. TODD, 309 U.S. 280, 293.  THESE CASES ESTABLISH THE RULE OF BINDING
AUTHORITY FOR THE DECISIONS OF THE HIGHEST COURT OF A STATE AND A
PERSUASIVE AUTHORITY ONLY FOR THE DECISIONS OF INFERIOR STATE COURTS. 
THIS HAS BEEN THE INTERPRETATION OF THE DECISIONS OF THIS COURT NOT
ONLY BY THE SIXTH CIRCUIT IN THE INSTANT CASE BUT BY OTHER CIRCUITS. 
SIX COMPANIES V. JOINT HIGHWAY DISTRICT NO. 13 OF CALIFORNIA, 110 F.2D
620; FIELD V. FIDELITY UNION TRUST CO., 108 F.2D 521; HACK V. AMERICAN
SURETY CO., 96 F.2D 939.  CF., ERIE R. CO. V. HILT, 247 U.S. 97, 99. 

GRAHAM V. WHITE-PHILLIPS CO., 296 U.S. 27, CLEARLY HELD THAT THE
DECISION OF AN INTERMEDIATE APPELLATE COURT IN ILLINOIS CONSTRUING THE
NEGOTIABLE INSTRUMENT LAW WAS NOT BINDING UPON THE FEDERAL COURT
SITTING IN ILLINOIS. 

EVEN IF THE RULE OF ERIE R. CO. V. TOMPKINS WERE TO BE EXTENDED IT
OUGHT NOT TO INCLUDE DECISIONS BY THE COURT OF APPEALS OF OHIO.  THERE
ARE NINE COURTS OF APPEALS IN OHIO, EACH HAVING JURISDICTION IN A
PARTICULAR DISTRICT.  THE EIGHTH DISTRICT HAS JURISDICTION IN ONLY A
SINGLE COUNTY, NAMELY, CUYAHOGA.  IT HAS NO JURISDICTION OVER SUITS
BROUGHT IN THE OTHER EIGHTY-SEVEN COUNTIES OF THE STATE.  ITS JUDGMENTS
ARE FINAL EXCEPT IN CASES INVOLVING QUESTIONS UNDER THE STATE OR
FEDERAL CONSTITUTION AND "CASES OF PUBLIC OR GREAT GENERAL INTEREST IN
WHICH THE SUPREME COURT MAY DIRECT ANY COURT OF APPEALS TO CERTIFY ITS
RECORD TO THAT COURT."  OHIO CONST., ART. IV, SEC. 6.  IN PRACTICE THIS
MEANS THAT THE SUPREME COURT CAN, BY GRANTING A MOTION TO CERTIFY,
REVIEW PRACTICALLY ANY CASE DECIDED BY ANY COURT OF APPEALS. 

THE DECISIONS OF THE COURT OF APPEALS OF CUYAHOGA COUNTY ARE NOT
BINDING UPON THE COURTS OF THE OTHER EIGHTY-SEVEN COUNTIES OF OHIO BUT
ARE OF PERSUASIVE AUTHORITY ONLY.  COMMON PLEAS JUDGES OF THE OTHER 87
COUNTIES AND THE COURTS OF APPEALS OF THE OTHER EIGHT DISTRICTS ARE
UNDER NO OBLIGATION TO ACCORD THE OPINION IN WEST V. AMERICAN TELEPHONE
& TELEGRAPH CO. ANY GREATER WEIGHT THAN ITS REASONING COMPELS.  NOR
DOES THE FACT THAT A MOTION TO CERTIFY THIS DECISION WAS DENIED BY THE
OHIO SUPREME COURT ADD TO ITS AUTHORITY.  VILLAGE OF BREWSTER V. HILL,
120 OHIO ST. 343. 

THE ONLY OHIO COURT, THEREFORE, THAT IS BOUND BY THE DECISION OF THE
COURT OF APPEALS OF CUYAHOGA COUNTY IS THE COMMON PLEAS COURT OF THAT
COUNTY.  IF THE PLAINTIFFS' CLAIM IN THIS CASE IS RECOGNIZED IT WILL
MEAN THAT THE DECISION OF THE OHIO COURT OF APPEALS OF CUYAHOGA COUNTY
CAN BE IGNORED BY THE COURTS OF EIGHTY-SEVEN OF EIGHTY-EIGHT COUNTIES
IN OHIO, AS IT CAN BY THE SUPREME COURT OF OHIO, BUT WILL BE BINDING
UPON JUSTICES OF THE PEACE, MUNICIPAL COURTS AND THE COMMON PLEAS COURT
OF CUYAHOGA COUNTY AND UPON ALL THE FEDERAL COURTS, INCLUDING THE
HIGHEST. 

MOREOVER, IT MEANS THAT A PLAIN MISINTERPRETATION AND MISCONSTRUCTION
OF THE DECISIONS OF THE SUPREME COURT OF OHIO INCORPORATED IN THE
OPINION IN THIS CASE CAN BE CORRECTED IN A LATER CASE IN PRACTICALLY
ALL THE COURTS OF OHIO BUT CAN NOT BE CORRECTED BY ANY OF THE FEDERAL
COURTS. 

FINALLY, IT MEANS, AS THE CIRCUIT COURT OF APPEALS SAID, THAT A
DECISION PROCEEDING UPON A MISUNDERSTANDING OF A FORMER DECISION OF THE
SIXTH CIRCUIT COURT OF APPEALS CAN NOT BE CORRECTED BY THAT COURT OR BY
THIS COURT. 

THERE ARE OTHER CONSEQUENCES OF MOMENT.  IF THE RULE SOUGHT BY THE
PLAINTIFFS WERE PUT IN EFFECT EVERY CAUSE OF ACTION SUPPORTED BY A
DOUBTFUL DECISION OF A COURT OF APPEALS OF OHIO WOULD BE BROUGHT IN THE
FEDERAL COURT WHERE DIVERSITY OR OTHER JURISDICTIONAL GROUND EXISTED
FOR THE VERY PURPOSE OF PREVENTING THE OHIO COURTS FROM CORRECTING THE
UNSOUND RULE. 

WE POINT OUT FURTHER THAT THE DISTRICT COURT FOR THE EASTERN DIVISION
OF THE NORTHERN DISTRICT OF OHIO HAS JURISDICTION IN SOME NINETEEN
COUNTIES.  THESE SAME NINETEEN COUNTIES INCLUDE ALL OR PARTS OF THE
TERRITORIAL JURISDICTION OF THREE OHIO COURTS OF APPEALS.  UNDER THE
RULE ADVOCATED BY THE PETITIONERS A SINGLE JUDGE SITTING IN THE EASTERN
DIVISION OF THE NORTHERN DISTRICT OF OHIO MIGHT CONCEIVABLY HAVE THREE
DIFFERENT RULES OF LAW FROM WHICH TO CHOOSE AS ANNOUNCED BY THE THREE
OHIO COURTS OF APPEALS IN HIS DISTRICT.  AND WHY STOP HERE?  IF EACH
COURT OF APPEALS IN OHIO CAN DECLARE THE LAW OF THE STATE BINDING ON
THE FEDERAL COURT, THEORETICALLY THERE COULD BE NINE SUCH DECISIONS
FROM WHICH THE DISTRICT JUDGE MIGHT CHOOSE. 

THE OPINION OF THE OHIO COURT OF APPEALS IN THIS CASE CAN NOT BE
ACCEPTED BY THE FEDERAL COURTS WITHOUT (A) DENYING FULL FAITH AND
CREDIT TO THE JUDGMENT RENDERED IN THE SAME CASE, AND (B) PERPETUATING
A PLAIN MISCONSTRUCTION OF WELL-SETTLED OHIO LAW. 

PLAINTIFFS' CLAIMS AS TO THE RELIEF ARE WHOLLY UNWARRANTED. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS IN THIS CASE, IN WHICH JURISDICTION
RESTS EXCLUSIVELY ON DIVERSITY OF CITIZENSHIP, DECLINED TO FOLLOW THE
RULING IN WEST V. AMERICAN TELEPHONE & TELEGRAPH CO., 54 OHIO APP. 369;
7 N.E.2D 805; 7 OHIO OPINIONS 363, OF THE CUYAHOGA COUNTY COURT OF
APPEALS, AN INTERMEDIATE APPELLATE COURT OF OHIO.  THE QUESTION FOR
DECISION IS WHETHER, IN REFUSING TO FOLLOW THE RULE OF LAW ANNOUNCED BY
THE STATE COURT, THE COURT BELOW FAILED TO APPLY STATE LAW WITHIN THE
REQUIREMENT OF SEC. 34 OF THE JUDICIARY ACT OF 1789 AND OF OUR DECISION
IN ERIE RAILROAD CO. V. TOMPKINS, 304 U.S. 64. 

IN 1926 AN OHIO DECEDENT, DOMICILED AT DEATH IN CUYAHOGA COUNTY,
BEQUEATHED HIS ESTATE, INCLUDING NINETY-TWO SHARES OF THE COMMON STOCK
OF RESPONDENT, TO HIS WIDOW FOR LIFE, WITH REMAINDER TO PETITIONERS,
THE SONS OF DECEDENT'S FIRST WIFE, WHO WAS THE SISTER OF HIS WIDOW. 
FEBRUARY 2, 1927, THE WIDOW TENDERED TO RESPONDENT, FOR TRANSFER,
CERTIFICATES FOR THE NINETY-TWO SHARES OF STOCK STANDING IN DECEDENT'S
NAME, EACH ENDORSED WITH AN ASSIGNMENT OF THE SHARES EVIDENCED BY THE
CERTIFICATE, TO THE WIDOW, SIGNED IN HER NAME AS EXECUTRIX OF
DECEDENT'S ESTATE.  ACCOMPANYING THE CERTIFICATE WERE DULY ATTESTED
DOCUMENTS AS FOLLOWS:  A COPY OF DECEDENT'S WILL, A CERTIFICATE OF THE
CUYAHOGA COUNTY PROBATE COURT OF THE QUALIFICATION OF THE WIDOW AS
EXECUTRIX UNDER THE WILL; COPY OF AN APPLICATION OF THE EXECUTRIX FOR
THE DISTRIBUTION IN KIND OF THE ESTATE, CONSISTING OF SPECIFIED
CORPORATE STOCKS INCLUDING THE NINETY-TWO SHARES OF RESPONDENT'S STOCK,
WITH THE APPENDED CONSENT OF PETITIONERS TO THE DISTRIBUTION IN KIND,
AND A COPY OF THE JOURNAL OF THE PROBATE COURT SHOWING THAT IT HAD
GRANTED THE APPLICATION AND ORDERED THE DISTRIBUTION. 

THEREUPON RESPONDENT ISSUED A NEW CERTIFICATE FOR THE NINETY-TWO
SHARES IN THE NAME OF THE WIDOW WHICH DID NOT DISCLOSE HER LIMITED
INTEREST AS LIFE TENANT OR THAT OF PETITIONERS AS REMAINDERMEN. 
OCTOBER 31, 1929 THE WIDOW ENDORSED AND DELIVERED THE CERTIFICATE AS
COLLATERAL SECURITY FOR HER BROKERAGE ACCOUNT TO A STOCK BROKER TO WHOM
RESPONDENT ISSUED A NEW CERTIFICATE IN HIS NAME AS STOCKHOLDER ON
NOVEMBER 4, 1929.  IN MARCH, 1934, PETITIONERS FIRST LEARNED OF THIS
DISPOSITION OF THE SHARES BY THE WIDOW AND IN JUNE, 1934, BROUGHT SUIT
AGAINST RESPONDENT IN THE CUYAHOGA COUNTY COURT OF COMMON PLEAS,
SEEKING RECOVERY OF DAMAGES FOR THE WRONGFUL TRANSFER OF THE SHARES. 
IN ADDITION TO DEFENSES ON THE MERITS RESPONDENT SET UP THE OHIO FOUR
YEAR STATUTE OF LIMITATIONS.  AFTER A TRIAL ON THE MERITS THE TRIAL
COURT GAVE JUDGMENT FOR PETITIONERS, WHICH THE CUYAHOGA COUNTY COURT OF
APPEALS REVERSED.  THE STATE SUPREME COURT DENIED PETITIONERS' MOTION
TO REQUIRE THE COURT OF APPEALS TO CERTIFY ITS RECORD TO THE SUPREME
COURT FOR REVIEW BECAUSE OF "PROBABLE ERROR" IN THE CASE, AFTER WHICH
THE COURT OF COMMON PLEAS ENTERED "FINAL JUDGMENT AGAINST APPELLEES
(PETITIONERS HERE) AND IN FAVOR OF APPELLANT (RESPONDENT HERE)" UPON
THE MANDATE OF THE COURT OF APPEALS STATING "THE JUDGMENT OF THE COURT
OF COMMON PLEAS IS REVERSED FOR REASONS STATED IN OPINION ON FILE AND
FINAL JUDGMENT IS HEREBY RENDERED FOR APPELLANT, NO ERROR APPEARING IN
THE RECORD."  THE OPINION OF THE APPELLATE COURT WAS NOT FILED BUT
COPIES WERE FURNISHED COUNSEL AND IT APPEARS OF RECORD. 

THE STATE COURT OF APPEALS HELD THAT UPON THE TENDER FOR TRANSFER OF
THE CERTIFICATES OF STOCK BY THE EXECUTRIX IT WAS THE DUTY OF
RESPONDENT TO ISSUE A NEW CERTIFICATE SHOWING ON ITS FACE THE
RESPECTIVE INTERESTS OF THE LIFE TENANT AND OF THE PETITIONERS AS
REMAINDERMEN; THAT THE TRANSFER OF THE SHARES BY RESPONDENT TO THE
BROKER WITHOUT THE ENDORSEMENT OF THE CERTIFICATE BY PETITIONERS WAS
UNAUTHORIZED AND WRONGFUL; THAT THE UNLAWFUL DISPOSITION OF THE STOCK
BY THE LIFE TENANT DID NOT TERMINATE THE LIFE INTEREST OR ACCELERATE
THE RIGHTS OF THE REMAINDERMEN, BUT THAT THE REFUSAL OF RESPONDENT
AFTER DEMAND BY PETITIONER TO RECOGNIZE AND REESTABLISH PETITIONERS'
RIGHTS IN THE STOCK, OR OTHER STOCK OF EQUAL PAR VALUE, WAS A
CONVERSION OF IT ENTITLING PETITIONERS TO DAMAGES TO THE EXTENT OF THE
VALUE OF THEIR INTEREST IN THE STOCK OR TO A DECREE OF RESTITUTION
DIRECTING RESPONDENT TO ISSUE A NEW CERTIFICATE FOR THE NINETY-TWO
SHARES IN SUCH MANNER AS WOULD PROTECT THE RESPECTIVE INTERESTS OF ALL
PARTIES. 

CONSTRUING THE RELEVANT PROVISIONS OF THE OHIO UNIFORM STOCK TRANSFER
ACT (OHIO G.C., SECS. 8673-1-22) THE COURT HELD THAT AS A PREREQUISITE
TO RECOVERY FOR CONVERSION OF PETITIONERS' INTEREST IN THE STOCK IT WAS
NECESSARY THAT RESPONDENT REPUDIATE PETITIONERS' TITLE AND THAT THE
PETITIONERS SHOULD ALLEGE AND PROVE THAT RESPONDENT HAD REFUSED TO
RECOGNIZE PETITIONERS' RIGHT IN THE STOCK AND TO ISSUE AN APPROPRIATE
CERTIFICATE FOR IT.  AS PETITIONERS HAD FAILED TO ALLEGE OR PROVE ANY
DEMAND ON RESPONDENT OR ANY REFUSAL BY IT IN ADVANCE OF SUIT TO
RECOGNIZE PETITIONERS' RIGHTS OR TO ISSUE AN APPROPRIATE CERTIFICATE,
THE COURT DIRECTED JUDGMENT FOR RESPONDENT IN CONFORMITY TO ITS
MANDATE. 

ON JUNE 18, 1937, FOLLOWING THE DENIAL OF PETITIONERS' MOTION BY THE
STATE SUPREME COURT, IN JANUARY, 1937, PETITIONERS MADE DEMAND ON
RESPONDENT, THE SUFFICIENCY OF WHICH IS NOT QUESTIONED, TO RESTORE TO
PETITIONERS THEIR RIGHTS IN THE SHARES, AND ON JULY 14, 1937,
PETITIONERS BROUGHT THE PRESENT SUIT IN THE FEDERAL DISTRICT COURT FOR
NORTHERN OHIO.  THE BILL OF COMPLAINT, AFTER ALLEGING THE FACTS ALREADY
MENTIONED WHICH THE STATE COURT HAD FOUND TO ESTABLISH THE WRONGFUL
TRANSFER OF THE STOCK BY RESPONDENT AND AFTER RECITING THE COURSE AND
RESULTS OF THE LITIGATION IN THE STATE COURTS AND THE DEMAND ON
RESPONDENT, SET UP PETITIONERS' RIGHT TO RELIEF ACCORDING TO THE
DECISIONS OF THE STATE COURTS AND PRAYED JUDGMENT THAT RESPONDENT ISSUE
TO PETITIONERS A CERTIFICATE FOR THE NINETY-TWO SHARES OF STOCK AND FOR
BACK DIVIDENDS WITH INTEREST, AND DAMAGES, AND GENERALLY FOR OTHER
RELIEF. 

THE TRIAL COURT FOUND THAT THE CAUSE OF ACTION DID NOT ACCRUE UNTIL
THE DEMAND MADE UPON RESPONDENT; THAT SUIT WAS NOT BARRED BY THE PRIOR
ADJUDICATION IN THE STATE COURT SINCE THAT SUIT, IN WHICH NO DEMAND WAS
ALLEGED OR PROVED, WAS ON A DIFFERENT CAUSE OF ACTION FROM THAT NOW
ASSERTED; THAT IT WAS NOT BARRED BY LIMITATIONS OR LACHES AND THAT THE
REMAINDER INTERESTS HAD NOT BEEN ACCELERATED BY THE WRONGFUL
DISPOSITION AND TRANSFER OF THE STOCK.  IT ACCORDINGLY DECREED THAT
RESPONDENT PROCURE BY PURCHASE OR OTHERWISE NINETY-TWO SHARES OF ITS
COMMON STOCK, ISSUE A CERTIFICATE FOR IT TO A TRUSTEE, WHICH WAS
DIRECTED TO HOLD THE STOCK DURING THE LIFETIME OF THE WIDOW FOR THE
BENEFIT OF RESPONDENT AND UPON HER DEATH TO MAKE DISTRIBUTION OF IT TO
THE REMAINDERMEN AS DIRECTED BY THE WILL. 

THE COURT OF APPEALS FOR THE SIXTH CIRCUIT DISMISSED THE APPEAL OF
PETITIONERS RAISING QUESTIONS NOT NOW MATERIAL AND ON THE APPEAL OF THE
RESPONDENT, REVERSED THE DECREE OF THE DISTRICT COURT, 108 F.2D 347. 
IT HELD CONTRARY TO THE RULING OF THE STATE COURT THAT DEMAND UPON
RESPONDENT WAS NOT PREREQUISITE TO THE ACCRUAL OF PETITIONERS' CAUSE OF
ACTION AND THAT PETITIONERS' RIGHT OF RECOVERY WAS BARRED BY
LIMITATIONS AND LACHES.  WE GRANTED CERTIORARI, 310 U.S. 618, UPON A
PETITION WHICH SET UP THAT THE COURT OF APPEALS HAD ERRONEOUSLY FAILED
TO APPLY THE OHIO LAW WITH RESPECT TO THE NECESSITY FOR A DEMAND AS
DEFINED BY THE STATE COURT OF APPEALS IN THE LITIGATION BETWEEN THE
PRESENT PARTIES AND THAT THE COURT BELOW HAD ERRONEOUSLY APPLIED THE
OHIO RULE OF LIMITATIONS AND OF LACHES, ALL QUESTIONS OF PUBLIC
IMPORTANCE CONCERNING THE INTERRELATION OF STATE AND FEDERAL COURTS. 

THE COURT BELOW THOUGHT THAT DEMAND WAS NOT AN ESSENTIAL PART OF THE
CAUSE OF ACTION WHERE THE SUIT WAS BROUGHT BY REMAINDERMEN NOT ENTITLED
TO POSSESSION OF THE STOCK CERTIFICATE, CONSEQUENTLY THAT THE DISTRICT
COURT HAD ERRED IN FOLLOWING THE RULING OF THE STATE COURT OF APPEALS
AND THAT BOTH HAD MISCONSTRUED AND MISAPPLIED AN EARLIER DECISION OF
THE COURT BELOW IN AMERICAN STEEL FOUNDRIES V. HUNT, 79 F.2D 558, WHERE
DEMAND WAS HELD TO BE PREREQUISITE TO A SUIT BROUGHT BY ONE WHO HAD
ACQUIRED SHARES BY PURCHASE BUT HAD FAILED TO PRESENT THE ENDORSED
CERTIFICATE TO THE CORPORATION FOR TRANSFER BEFORE BRINGING SUIT.  IT
CITED DECISIONS OF SIMILAR PURPORT BY THE OHIO SUPREME COURT BUT
RECOGNIZED THAT THE ONLY OHIO CASE PASSING UPON THE QUESTION WHETHER
DEMAND IS PREREQUISITE TO SUIT IN THE CASE OF A REMAINDERMAN IS THE
DECISION OF THE STATE COURT OF APPEALS IN WEST V. AMERICAN TELEPHONE &
TELEGRAPH CO., SUPRA.  IT HELD THAT IT WAS NOT BOUND TO FOLLOW THE
DECISION OF AN INTERMEDIATE APPELLATE COURT OF THE STATE AND SO WAS
FREE TO ADOPT AND APPLY WHAT IT CONSIDERED TO BE THE BETTER RULE THAT
DEMAND IS UNNECESSARY AND CONSEQUENTLY IS NOT A PART OF THE
PETITIONERS' CAUSE OF ACTION.  FROM THIS IT CONCLUDED THAT THE CAUSE OF
ACTION WHICH IT THOUGHT HAD ACCRUED IN 1927 WHEN THE STOCK CERTIFICATE
WAS ISSUED TO THE LIFE TENANT, WAS BARRED BY THE FOUR-YEAR STATUTE OF
LIMITATIONS APPLICABLE TO CAUSES OF ACTION "FOR AN INJURY TO THE RIGHTS
OF THE PLAINTIFF NOT ARISING ON CONTRACT  ...  "  SEC. 11224 OHIO G.C.,
OR BY LACHES IF DEMAND WERE NECESSARY. 

SINCE THE EQUITABLE RELIEF SOUGHT IN THIS SUIT IS PREDICATED UPON
PETITIONERS' LEGAL RIGHTS GROWING OUT OF RESPONDENT'S UNLAWFUL TRANSFER
OF THE STOCK TO THE ASSIGNEE OF THE LIFE TENANT, THE STATE "LAWS"
WHICH, BY SEC. 34 OF THE JUDICIARY ACT OF 1789, C. 20, 28 U.S.C., SEC.
725, ARE MADE "THE RULES OF DECISION IN TRIALS AT COMMON LAW" DEFINE
THE NATURE AND EXTENT OF PETITIONERS' RIGHT.  SEE RUSSELL V. TODD, 309
U.S. 280, 289.  AND THE RULES OF DECISION ESTABLISHED BY JUDICIAL
DECISIONS OF STATE COURTS ARE "LAWS" AS WELL AS THOSE PRESCRIBED BY
STATUTE.  ERIE RAILROAD CO. V. TOMPKINS, SUPRA, 78.  TRUE, AS WAS
INTIMATED IN THE ERIE RAILROAD CASE, THE HIGHEST COURT OF THE STATE IS
THE FINAL ARBITER OF WHAT IS STATE LAW.  WHEN IT HAS SPOKEN, ITS
PRONOUNCEMENT IS TO BE ACCEPTED BY FEDERAL COURTS AS DEFINING STATE LAW
UNLESS IT HAS LATER GIVEN CLEAR AND PERSUASIVE INDICATION THAT ITS
PRONOUNCEMENT WILL BE MODIFIED, LIMITED OR RESTRICTED.  SEE WICHITA
ROYALTY CO. V. CITY NATIONAL BANK, 306 U.S. 103, 107.  BUT THE OBVIOUS
PURPOSE OF SEC. 34 OF THE JUDICIARY ACT IS TO AVOID THE MAINTENANCE
WITHIN A STATE OF TWO DIVERGENT OR CONFLICTING SYSTEMS OF LAW, ONE TO
BE APPLIED IN THE STATE COURTS, THE OTHER TO BE AVAILED OF IN THE
FEDERAL COURTS, ONLY IN CASE OF DIVERSITY OF CITIZENSHIP.  THAT OBJECT
WOULD BE THWARTED IF THE FEDERAL COURTS WERE FREE TO CHOOSE THEIR OWN
RULES OF DECISION WHENEVER THE HIGHEST COURT OF THE STATE HAS NOT
SPOKEN. 

A STATE IS NOT WITHOUT LAW SAVE AS ITS HIGHEST COURT HAS DECLARED IT.
THERE ARE MANY RULES OF DECISION COMMONLY ACCEPTED AND ACTED UPON BY
THE BAR AND INFERIOR COURTS WHICH ARE NEVERTHELESS LAWS OF THE STATE
ALTHOUGH THE HIGHEST COURT OF THE STATE HAS NEVER PASSED UPON THEM.  IN
THOSE CIRCUMSTANCES A FEDERAL COURT IS NOT FREE TO REJECT THE STATE
RULE MERELY BECAUSE IT HAS NOT RECEIVED THE SANCTION OF THE HIGHEST
STATE COURT, EVEN THOUGH IT THINKS THE RULE IS UNSOUND IN PRINCIPLE OR
THAT ANOTHER IS PREFERABLE.  STATE LAW IS TO BE APPLIED IN THE FEDERAL
AS WELL AS THE STATE COURTS AND IT IS THE DUTY OF THE FORMER IN EVERY
CASE TO ASCERTAIN FROM ALL THE AVAILABLE DATA WHAT THE STATE LAW IS AND
APPLY IT RATHER THAN TO PRESCRIBE A DIFFERENT RULE, HOWEVER SUPERIOR IT
MAY APPEAR FROM THE VIEWPOINT OF "GENERAL LAW" AND HOWEVER MUCH THE
STATE RULE MAY HAVE DEPARTED FROM PRIOR DECISIONS OF THE FEDERAL
COURTS.  SEE ERIE RAILROAD CO. V. TOMPKINS, SUPRA, 78; RUSSELL V. TODD,
SUPRA, 203. 

WHERE AN INTERMEDIATE APPELLATE STATE COURT RESTS ITS CONSIDERED
JUDGMENT UPON THE RULE OF LAW WHICH IT ANNOUNCES, THAT IS A DATUM FOR
ASCERTAINING STATE LAW WHICH IS NOT TO BE DISREGARDED BY A FEDERAL
COURT UNLESS IT IS CONVINCED BY OTHER PERSUASIVE DATA THAT THE HIGHEST
COURT OF THE STATE WOULD DECIDE OTHERWISE.  SIX COMPANIES OF CALIFORNIA
V. JOINT HIGHWAY DISTRICT, ANTE, P. 180; FIDELITY UNION TRUST CO. V.
FIELD, ANTE, P. 169.  CF. GRAHAM V. WHITE-PHILLIPS CO., 296 U.S. 27;
WICHITA ROYALTY CO. V. CITY NATIONAL BANK, SUPRA, 107; RUSSELL V. TODD,
SUPRA.  THIS IS THE MORE SO WHERE, AS IN THIS CASE, THE HIGHEST COURT
HAS REFUSED TO REVIEW THE LOWER COURT'S DECISION RENDERED IN ONE PHASE
OF THE VERY LITIGATION WHICH IS NOW PROSECUTED BY THE SAME PARTIES
BEFORE THE FEDERAL COURT.  TRUE, SOME OTHER COURT OF APPEALS OF OHIO
MAY IN SOME OTHER CASE ARRIVE AT A DIFFERENT CONCLUSION AND THE SUPREME
COURT OF OHIO, NOTWITHSTANDING ITS REFUSAL TO REVIEW THE STATE DECISION
AGAINST THE PETITIONER, MAY HOLD ITSELF FREE TO MODIFY OR REJECT THE
RULING THUS ANNOUNCED.  VILLAGE OF BREWSTER V. HILL, 128 OHIO ST. 343,
353; 190 N.E. 766.  FN1  EVEN THOUGH IT IS ARGUABLE THAT THE SUPREME
COURT OF OHIO WILL AT SOME LATER TIME MODIFY THE RULE OF THE WEST CASE,
WHETHER THAT WILL EVER HAPPEN REMAINS A MATTER OF CONJECTURE.  IN THE
MEANTIME THE STATE LAW APPLICABLE TO THESE PARTIES AND IN THIS CASE HAS
BEEN AUTHORITATIVELY DECLARED BY THE HIGHEST STATE COURT IN WHICH A
DECISION COULD BE HAD.  IF THE PRESENT SUIT HAD BEEN BROUGHT IN THE
CUYAHOGA COUNTY COURT NO REASON IS ADVANCED FOR SUPPOSING THAT THE
CUYAHOGA COURT OF APPEALS WOULD DEPART FROM ITS PREVIOUS RULING OR THAT
THE SUPREME COURT OF THE STATE WOULD GRANT THE REVIEW WHICH IT WITHHELD
BEFORE.  WE THINK THAT THE LAW THUS ANNOUNCED AND APPLIED IS THE LAW OF
THE STATE APPLICABLE IN THE SAME CASE AND TO THE SAME PARTIES IN THE
FEDERAL COURT AND THAT THE FEDERAL COURT IS NOT FREE TO APPLY A
DIFFERENT RULE HOWEVER DESIRABLE IT MAY BELIEVE IT TO BE, AND EVEN
THOUGH IT MAY THINK THAT THE STATE SUPREME COURT MAY ESTABLISH A
DIFFERENT RULE IN SOME FUTURE LITIGATION. 

WHETHER THE STATE COURT OF APPEALS IN THE FIRST SUIT DEFINED THE
CAUSE OF ACTION AS ARISING OUT OF THE FAILURE OF RESPONDENT TO DESCRIBE
CORRECTLY THE INTERESTS OF THE PARTIES, IN THE CERTIFICATE ISSUED TO
THE WIDOW IN 1927, OR OUT OF THE WRONGFUL TRANSFER IN 1929, IS
IMMATERIAL TO THE QUESTION OF THE PERIOD OF LIMITATION.  IN EITHER
CASE, SINCE THE CAUSE OF ACTION UNDER THE OHIO LAW DID NOT ARISE UNTIL
DEMAND, WHICH WAS EITHER ON JUNE 2, 1934, WHEN THE SUIT WAS BROUGHT IN
THE STATE COURT, OR JUNE 18, 1937, WHEN THE FORMAL DEMAND WAS MADE, THE
STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN UNTIL ONE OR THE OTHER OF
THOSE DATES.  SEE KEITHLER V. FOSTER, 22 OHIO ST. 27.  IT IS
UNNECESSARY TO DECIDE WHETHER, AS PETITIONERS CONTEND, THE SUIT WAS ON
CONTRACT OR STATUTORY LIABILITY TO WHICH THE SIX-YEAR STATUTE APPLIES,
SEC. 11222, OHIO G.C., OR "FOR THE RECOVERY OF PERSONAL PROPERTY OR FOR
TAKING OR DETAINING IT," IN WHICH CASE THE CAUSE OF ACTION IS NOT
DEEMED TO ACCRUE "UNTIL THE WRONGDOER IS DISCOVERED  ...  " SEC. 11224,
OHIO G.C., SEE CLEVELAND & MAHONING R. CO. V. ROBBINS, 35 OHIO ST. 483,
502, OR WHETHER AS THE COURT BELOW HELD THE CAUSE OF ACTION WAS "FOR
INJURY TO THE RIGHTS OF THE PLAINTIFF NOT ARISING ON CONTRACT  ... ,"
IN WHICH CASE THE STATUTE RUNS FROM THE DATE OF THE INJURY WHEN DEMAND
IS NOT REQUIRED.  SEC. 11224, OHIO G.C.  FOR IN ANY EVENT SINCE UNDER
OHIO LAW NO CAUSE OF ACTION AROSE UNTIL DEMAND WAS MADE, THE FOURYEAR
PERIOD WOULD RUN EITHER FROM THE DATE OF THE FIRST SUIT, OR FROM THAT
OF THE FORMAL DEMAND, AND HAD NOT EXPIRED ON JULY 14, 1937, WHEN THE
PRESENT SUIT WAS COMMENCED IN THE DISTRICT COURT. 

THE COURT BELOW ALSO HELD THAT IF DEMAND WERE TO BE DEEMED A
PREREQUISITE TO SUIT PETITIONERS WERE BARRED BY THEIR "UNNECESSARY
DELAY" IN MAKING IT, CITING KEITHLER V. FOSTER, SUPRA, FOR THE
PROPOSITION THAT DEMAND MUST BE MADE WITHIN FOUR YEARS AFTER THE CAUSE
AROSE (1927 OR 1929), THE TIME LIMITED BY THE STATUTE FOR BRINGING AN
ACTION IF NO DEMAND WERE NECESSARY.  BUT THE SUPREME COURT IN THAT CASE
THOUGHT IT CORRECT TO APPLY THE RULE RELIED UPON BY THE CIRCUIT COURT
OF APPEALS ONLY WHEN "NO CAUSE FOR DELAY CAN BE SHOWN."  CF. STEARNS V.
HIBBEN DRY GOODS CO., 11 OHIO C.C. (N.S.)  553; 31 OHIO C.C. 270;
AFFIRMED 84 OHIO ST. 470; 95 N.E. 1157.  HERE NO SPECIAL CIRCUMSTANCES
ARE SHOWN FOR LIMITING THE TIME OF DEMAND OR SHORTENING THE STATUTORY
PERIOD AFTER DEMAND.  FN2  BOTH THE STATE COURT AND THE DISTRICT COURT
IN THIS CASE HAVE RULED THAT PETITIONERS ARE NOT ESTOPPED BY THEIR
CONSENT TO DISTRIBUTION, WHICH BOTH COURTS INTERPRETED AS A CONSENT
ONLY TO A LAWFUL DISTRIBUTION BY A LAWFUL PROCEDURE.  THE DISTRICT
COURT ALSO FOUND THAT THE EVIDENCE RELIED UPON TO SHOW LACK OF
DILIGENCE ON THE PART OF PETITIONERS IN PROSECUTING INQUIRIES WHICH
WOULD HAVE DISCLOSED THE UNLAWFUL TRANSFER FAILED OF ITS PURPOSE AND
WAS INSUFFICIENT TO ESTABLISH EITHER ESTOPPEL OR LACHES.  AT MOST THE
EVIDENCE SHOWS THAT IN 1930 ONE OF THE PETITIONERS BECAME SUSPICIOUS
THAT THE LIFE TENANT HAD SUFFERED LOSSES IN THE STOCK MARKET AND MADE
INQUIRY OF ONE CORPORATION WHOSE STOCK WAS INCLUDED IN THE ESTATE ONLY
TO LEARN THAT THE STOCK CERTIFICATE HAD BEEN PROPERLY ISSUED TO THE
WIDOW AS LIFE TENANT OF THE ESTATE AND THAT HE MADE NO FURTHER
INQUIRIES.  THE RECORD IS BARREN OF ANY EVIDENCE TO SUGGEST THAT
PETITIONERS HAD ANY GROUND FOR SUSPICION THAT RESPONDENT HAD ISSUED THE
CERTIFICATE TO THE LIFE TENANT IN ANY IMPROPER OR UNLAWFUL FORM BEFORE
MARCH, 1934, WHEN THEY DISCOVERED THE MISAPPROPRIATION OF THE STOCK. 
THEY BROUGHT SUIT IN THE STATE COURT THE FOLLOWING JUNE.  WE THINK
THERE WAS NO WANT OF DILIGENCE ON THE PART OF PETITIONERS IN PRESENTING
AND PROSECUTING THEIR DEMAND AND THAT THE FINDINGS OF THE TRIAL COURT
ARE SUPPORTED BY THE EVIDENCE AND SHOULD NOT HAVE BEEN DISTURBED. 

THE JUDGMENT WILL BE REVERSED, BUT AS OTHER POINTS INVOLVING
QUESTIONS OF STATE LAW ARGUED HERE WERE NOT PASSED UPON BY THE COURT OF
APPEALS THE CAUSE WILL BE REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  ARTICLE IV, SEC. 6 OF THE OHIO CONSTITUTION PROVIDES THAT:
"JUDGMENTS OF THE COURTS OF APPEALS SHALL BE FINAL IN ALL CASES, EXCEPT
CASES INVOLVING QUESTIONS ARISING UNDER THE CONSTITUTION OF THE UNITED
STATES OR OF THIS STATE  ...  AND CASES OF PUBLIC OR GREAT GENERAL
INTEREST IN WHICH THE SUPREME COURT MAY DIRECT ANY COURT OF APPEALS TO
CERTIFY ITS RECORD TO THAT COURT  ...  AND WHENEVER THE JUDGES OF A
COURT OF APPEALS FIND THAT A JUDGMENT UPON WHICH THEY HAVE AGREED IS IN
CONFLICT WITH A JUDGMENT PRONOUNCED UPON THE SAME QUESTION BY ANY OTHER
COURT OF APPEALS OF THE STATE, THE JUDGES SHALL CERTIFY THE RECORD OF
THE CASE TO THE SUPREME COURT FOR REVIEW AND FINAL DETERMINATION." 

FN2  IN KEITHLER V. FOSTER, 22 OHIO ST. 27, THE DEMAND ON A SHERIFF
FOR MONEYS COLLECTED ON AN EXECUTION SALE IN 1855 WAS NOT MADE UNTIL
1867.  THE SUPREME COURT IN HOLDING THAT THE SUIT BROUGHT ON THE
SHERIFF'S BOND IN 1868 WAS NOT BARRED BY THE TEN YEAR STATUTE OF
LIMITATIONS SAID THAT WHERE "THE STATUTE BEGINS TO RUN, IN CASES LIKE
THIS, FROM THE TIME OF DEMAND, IT WOULD BE BUT REASONABLE TO HOLD, IN
THE ABSENCE OF OTHER SPECIAL CIRCUMSTANCES, WHEN NO DEMAND IS SHOWN TO
HAVE BEEN MADE WITHIN THE STATUTORY PERIOD FOR BRINGING THE ACTION,
THAT, FOR THE PURPOSE OF SETTING THE STATUTE IN OPERATION, A DEMAND
WILL BE PRESUMED AT THE EXPIRATION OF THAT PERIOD, FROM WHICH TIME THE
STATUTE WILL BEGIN TO RUN." 

IN DOUGLAS V. CORRY, 46 OHIO ST. 349; 21 N.E. 440; TOWNSEND V.
EICHELBERGER, 51 OHIO ST. 213; 38 N.E. 207, ON WHICH RESPONDENT RELIES,
NO SUIT WAS BROUGHT UNTIL AFTER THE EXPIRATION OF THE ADDITIONAL
LIMITATION PERIOD AFTER THE DEMAND WAS MADE OR PRESUMED AS IN KEITHLER
V. FOSTER, SUPRA. 

HERE, EVEN IF DEMAND WERE PRESUMED AT THE END OF A FOUR YEAR PERIOD,
WHICH BEGAN TO RUN EITHER IN 1927 OR 1929, THE STATE COURT ACTION WAS
TIMELY WHEN BEGUN ON JUNE 2, 1934.  IT WAS DISMISSED IN FEBRUARY,
1937.  THE PRESENT ACTION WAS BEGUN IN JULY, 1937.  SEC. 11233 OF THE
OHIO G.C. PROVIDES:  "IN AN ACTION COMMENCED, OR ATTEMPTED TO BE
COMMENCED, IF IN DUE TIME A JUDGMENT FOR THE PLAINTIFF BE REVERSED, OR
IF THE PLAINTIFF FAILS OTHERWISE THAN UPON THE MERITS, AND THE TIME
LIMITED FOR THE COMMENCEMENT OF SUCH ACTION AT THE DATE OF REVERSAL OR
FAILURE HAS EXPIRED, THE PLAINTIFF  ...  MAY COMMENCE A NEW ACTION
WITHIN ONE YEAR AFTER SUCH DATE.  ...  " 

MR. JUSTICE ROBERTS: 

I CONCUR IN THE OPINION OF THE COURT IN SO FAR AS IT HOLDS THAT THE
CIRCUIT COURT OF APPEALS SHOULD HAVE TREATED THE DECISION OF THE
CUYAHOGA COUNTY COURT OF APPEALS, UNDER THE CIRCUMSTANCES OF THIS CASE,
AS EXPRESSING THE LAW OF OHIO WITH RESPECT TO THE NECESSITY OF A DEMAND
PRIOR TO INSTITUTION OF SUIT.  I DO NOT, HOWEVER, AGREE THAT THE
JUDGMENT SHOULD BE REVERSED. 

I AM UNABLE TO SAY THAT THE COURT BELOW ERRED IN HOLDING THAT, UNDER
OHIO LAW, THE FOUR-YEAR PERIOD OF LIMITATIONS APPLIED TO PETITIONERS'
CAUSE OF ACTION, AND THAT DELAY OF DEMAND FOR MORE THAN FOUR YEARS
AFTER THE CAUSE OF ACTION ACCRUED BARRED THE SUIT.  BOTH HOLDINGS SEEM
TO ME TO BE SUPPORTED BY DECISIONS OF THE OHIO COURTS; KEITHLER V.
FOSTER, 22 OHIO ST. 27; DOUGLAS V. CORRY, 46 OHIO ST. 349; 21 N.E. 440;
TOWNSEND V. EICHELBERGER, 51 OHIO ST. 213; 38 N.E. 207; STEARNS V.
HIBBEN DRY GOODS CO., 11 OHIO C.C. (N.S.)  553, 31 OHIO C.C. 270;
AFFIRMED 84 OHIO ST. 470; 95 N.E. 1157.  THERE IS HERE NO PLACE FOR ANY
PRESUMPTION OF DEMAND, AS IN KEITHLER V. FOSTER, FOR HERE THE SUIT IN
THE STATE COURT WAS DISMISSED ON THE EXPRESS GROUND THAT NO DEMAND HAD
IN FACT BEEN MADE; AND IN THE PRESENT SUIT IN THE UNITED STATES
DISTRICT COURT THE AVERMENT OF THE COMPLAINT IS THAT DEMAND WAS MADE
JUNE 18, 1937, AT LEAST EIGHT YEARS AFTER THE CAUSE OF ACTION ACCRUED. 
IN SUCH CIRCUMSTANCES, AS THE OTHER CITED CASES SHOW, A DEMAND MADE AT
A DATE BEYOND THE PERIOD OF LIMITATIONS, DOES NOT TOLL THE STATUTE.  IN
THE DOUGLAS CASE THE AVERMENT WAS THAT DEMAND WAS MADE NINE YEARS AFTER
THE CAUSE OF ACTION ACCRUED AND SUIT WAS BROUGHT WITHIN FOUR YEARS
THEREAFTER.  IN THE STEARNS CASE IT WAS ALLEGED DEMAND WAS MADE FOUR
YEARS AND NINE MONTHS AFTER ACCRUAL OF CAUSE OF ACTION, AND SUIT BEGUN
WITHIN FOUR YEARS THEREAFTER.  THE STATUTE OF LIMITATIONS WAS HELD A
BAR IN BOTH. 

THOUGH THE ACTION WAS IN EQUITY, AN ACTION AT LAW MIGHT HAVE BEEN
MAINTAINED (STEARNS V. HIBBEN DRY GOODS CO., SUPRA; RUSSELL V. TODD,
309 U.S. 280, 289), AND THE STATUTE GOVERNING SUCH AN ACTION IS
APPLICABLE. 

NOT ONLY HAVE PETITIONERS FAILED TO SHOW "SPECIAL CIRCUMSTANCES"
JUSTIFYING THEIR DELAY IN MAKING DEMAND (KEITHLER V. FOSTER, SUPRA),
BUT THE COURT BELOW HAS HELD THEY WERE GUILTY OF LACHES, AN INDEPENDENT
GROUND OF DECISION, WHICH, THOUGH THE QUESTION BE A CLOSE ONE, WE OUGHT
NOT, UNDER OUR SETTLED PRACTICE, TO REEXAMINE. 

FOR THESE REASONS I THINK THAT, DESPITE THE ERRONEOUS VIEW OF THE
CIRCUIT COURT OF APPEALS AS TO THE LAW OF OHIO ON THE POINT DECIDED BY
THE STATE COURT OF APPEALS, THE JUDGMENT SHOULD BE AFFIRMED. 
..END :











MONTGOMERY WARD & CO. V. DUNCAN, 311 U.S. 243 


NO. 30.  ARGUED NOVEMBER 12, 1940.  - DECIDED DECEMBER 9, 1940.  - 108
F.2D 848, MODIFIED. 


1.  A DEFENDANT WHO MOVED THE DISTRICT COURT SUCCESSFULLY FOR JUDGMENT
NON OBSTANTE VEREDICTO AND WHO THEREUPON URGED THAT, BECAUSE OF THE
GRANTING OF THE JUDGMENT HIS ALTERNATIVE MOTION (ON OTHER GROUNDS) FOR
A NEW TRIAL HAD PASSED OUT OF THE CASE, DID NOT THEREBY ELECT TO STAND
UPON HIS MOTION FOR JUDGMENT ALONE AND ABANDON HIS RIGHT TO HAVE THE
MOTION FOR NEW TRIAL DECIDED BY THE DISTRICT COURT SHOULD HIS JUDGMENT
BE REVERSED ON APPEAL.  P. 249. 

2.  UNDER RULE 50(B) OF THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT
COURTS, THE GRANTING OF A MOTION FOR JUDGMENT NON OBSTANTE VEREDICTO
DOES NOT EFFECT AN AUTOMATIC DENIAL OF AN ALTERNATIVE MOTION FOR A NEW
TRIAL.  PP. 249-250. 

3.  THE PROVISION OF THE RULE THAT "A MOTION FOR A NEW TRIAL MAY BE
JOINED WITH THIS MOTION (FOR JUDGMENT NON OBSTANTE VEREDICTO), OR A NEW
TRIAL MAY BE PRAYED FOR IN THE ALTERNATIVE" - DOES NOT CONFINE THE
TRIAL JUDGE TO AN INITIAL CHOICE OF DISPOSING OF EITHER MOTION TO THE
EXCLUSION OF THE OTHER.  P. 251. 

4.  RULE 50(B) SHOULD BE SO ADMINISTERED AS TO ACCOMPLISH ALL THAT IS
PERMISSIBLE UNDER ITS TERMS IN AVOIDANCE OF DELAY IN LITIGATION.  P.
253. 

5.  UNDER RULE 50(B) WHERE THERE IS A MOTION FOR JUDGMENT NON
OBSTANTE VEREDICTO, AND IN THE ALTERNATIVE FOR A NEW TRIAL BECAUSE OF
TRIAL ERRORS AND MATTERS APPEALING TO THE JUDGE'S DISCRETION, THE JUDGE
SHOULD RULE ON THE MOTION FOR JUDGMENT, AND, WHATEVER THE RULING
THEREON, SHOULD ALSO RULE ON THE MOTION FOR NEW TRIAL, INDICATING THE
GROUNDS OF HIS DECISION.  IF HE GRANTS JUDGMENT NON OBSTANTE VEREDICTO
AND DENIES A NEW TRIAL, THE PARTY WHO OBTAINED THE VERDICT MAY APPEAL
FROM THAT JUDGMENT, AND THE APPELLEE MAY CROSS-ASSIGN ERROR TO RULINGS
OF LAW AT THE TRIAL, SO THAT IF THE APPELLATE COURT REVERSES THE ORDER
FOR JUDGMENT NON OBSTANTE VEREDICTO, IT MAY PASS ON THE ERRORS OF LAW
WHICH THE APPELLEE ASSERTS NULLIFY THE JUDGMENT ON THE VERDICT.  P.
253. 

6.  WHERE THE DISTRICT COURT GRANTED JUDGMENT NON OBSTANTE VEREDICTO
TO THE DEFENDANT, BUT FAILED TO PASS UPON DEFENDANT'S MOTION IN THE
ALTERNATIVE FOR A NEW TRIAL, AND THE GRANTING OF THE JUDGMENT NON
OBSTANTE VEREDICTO WAS ADJUDGED ERRONEOUS AND REVERSED ON APPEAL, HELD,
THAT IN VIEW OF THE NOVELTY OF THE PROCEDURE UNDER RULE 50(B) AND OTHER
CIRCUMSTANCES, THE CAUSE SHOULD BE REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO HEAR AND RULE UPON THE MOTION FOR A NEW TRIAL.  P. 254. 

MONTGOMERY WARD & CO. V. DUNCAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 309 U.S. 650, TO REVIEW A JUDGMENT OF THE COURT BELOW
WHICH REVERSED A JUDGMENT OF THE DISTRICT COURT FOR THE DEFENDANT
ENTERED NON OBSTANTE VEREDICTO AND REMANDED THE CASE WITH INSTRUCTIONS
TO THE DISTRICT COURT TO ENTER JUDGMENT ON THE VERDICT IN FAVOR OF THE
PLAINTIFF. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CALLED UPON TO DETERMINE THE APPROPRIATE
PROCEDURE UNDER RULE 50(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE. 
FN1 

TO RECOVER DAMAGES FOR PERSONAL INJURIES, RESPONDENT (HEREINAFTER
SPOKEN OF AS PLAINTIFF) BROUGHT ACTION AGAINST PETITIONER (HEREINAFTER
SPOKEN OF AS DEFENDANT), PURSUANT TO AN ARKANSAS STATUTE DECLARING THAT
CORPORATIONS SHOULD BE LIABLE FOR INJURIES TO AN EMPLOYE ATTRIBUTABLE
TO THE NEGLIGENCE OF A FELLOW EMPLOYE.  THE COMPLAINT ALLEGED THAT THE
PLAINTIFF, WHILE IN THE DEFENDANT'S SERVICE, HAD BEEN SO INJURED.  THE
ANSWER DENIED THE PLAINTIFF WAS AN EMPLOYE OF THE DEFENDANT; DENIED HE
WAS INJURED IN THE MANNER DESCRIBED OR BY THE NEGLIGENCE OF HIS CO
EMPLOYE, AND SET UP ASSUMPTION OF RISK.  AT THE CLOSE OF THE EVIDENCE
UPON THE TRIAL, THE DEFENDANT MOVED FOR A DIRECTED VERDICT.  THE MOTION
WAS DENIED AND THE JURY RETURNED A VERDICT FOR PLAINTIFF ON WHICH
JUDGMENT WAS ENTERED.  WITHIN TEN DAYS THE DEFENDANT FILED ITS WRITTEN
MOTION IN THE FOLLOWING FORM: 

"COMES THE DEFENDANT, MONTGOMERY WARD & COMPANY, AND FILES ITS MOTION
PRAYING THAT THE JURY'S VERDICT HEREIN AND THE JUDGMENT RENDERED AND
ENTERED THEREON BE SET ASIDE AND JUDGMENT ENTERED HEREIN FOR THE
DEFENDANT NOTWITHSTANDING THE VERDICT, AND ITS MOTION FOR A NEW TRIAL
IN THE ALTERNATIVE, AND AS GROUNDS THEREFOR STATES  ...  " 

THEREUNDER, IN HEADING A, IT SET OUT NINE REASONS IN SUPPORT OF THE
MOTION FOR JUDGMENT, FOUR OF WHICH WERE GENERAL, TO THE EFFECT THAT THE
VERDICT WAS CONTRARY TO LAW, TO THE EVIDENCE, TO THE LAW AND THE
EVIDENCE, AND THAT THE COURT ERRED IN REFUSING TO DIRECT A VERDICT. 
FOUR CHALLENGED THE SUFFICIENCY OF THE EVIDENCE AS TO NEGLIGENCE, AS TO
THE EXISTENCE OF THE EMPLOYMENT RELATION, AND AS TO ASSUMPTION OF RISK,
TO SUPPORT THE VERDICT.  ONE DEALT WITH THE PREPONDERANCE OF THE
EVIDENCE AND WAS THEREFORE INAPPROPRIATE IN SUPPORT OF THE MOTION. 

UNDER HEADING B, IN SUPPORT OF THE MOTION FOR A NEW TRIAL, THE SAME
REASONS AS WERE ASSIGNED FOR THE OTHER MOTION WERE, WITH AN IMMATERIAL
EXCEPTION, REPEATED; AND ADDITIONAL REASONS WERE ADDED TO THE EFFECT
THAT THE DAMAGES WERE EXCESSIVE; THAT THE COURT ERRED IN RULING UPON
EVIDENCE, AND IN REFUSING TO GIVE REQUESTED INSTRUCTIONS. 

THE MOTION CONCLUDED THUS: 

"WHEREFORE, THE DEFENDANT PRAYS THAT THE VERDICT OF THE JURY HEREIN,
AND THE JUDGMENT RENDERED AND ENTERED THEREON, BE SET ASIDE, AND A
JUDGMENT RENDERED AND ENTERED HEREIN IN FAVOR OF THE DEFENDANT; AND
DEFENDANT FURTHER PRAYS IN THE ALTERNATIVE THAT IN THE EVENT THE COURT
REFUSES TO SET ASIDE THE VERDICT RENDERED FOR THE PLAINTIFF AND THE
JUDGMENT IN FAVOR OF THE PLAINTIFF RENDERED AND ENTERED ON SAID
VERDICT, AND REFUSES TO RENDER AND ENTER JUDGMENT HEREIN IN FAVOR OF
THE DEFENDANT NOTWITHSTANDING SAID VERDICT AND JUDGMENT, THAT THE COURT
SET ASIDE SAID VERDICT AND JUDGMENT ON BEHALF OF THE PLAINTIFF AND
GRANT THE DEFENDANT A NEW TRIAL HEREIN." 

THE DISTRICT COURT RENDERED AN OPINION  FN2  HOLDING THAT THERE WAS
NO EVIDENCE OF NEGLIGENCE ON THE PART OF THE CO-EMPLOYE AND THAT,
THEREFORE, JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANT. 

THE PLAINTIFF FILED A MOTION PRAYING THAT, TO LIMIT THE ISSUES ON
APPEAL, THE COURT'S ORDER AND JUDGMENT SPECIFICALLY SHOW THE GROUNDS ON
WHICH RELIEF WAS GRANTED, AND "IN ORDER THAT THE JUDGMENT OF THE
APPELLATE COURT MAY BE FINAL," THE MOTION FOR A NEW TRIAL BE
OVERRULED.  THE COURT, HOWEVER, MERELY ENTERED A JUDGMENT FOR THE
DEFENDANT NOTWITHSTANDING THE VERDICT. 

THE PLAINTIFF FILED A SECOND MOTION RECITING THAT, AT A HEARING UPON
HIS EARLIER MOTION, THE DEFENDANT HAD RESISTED THE CONTENTION THAT THE
COURT SHOULD RULE ON THE MOTION FOR A NEW TRIAL AS THAT MOTION "PASSED
OUT OF EXISTENCE AND CONSIDERATION ON THE GRANTING OF ITS MOTION FOR A
JUDGMENT NOTWITHSTANDING THE VERDICT."  THE PLAINTIFF FURTHER RECITED
THAT THE COURT DID NOT PASS UPON THE PLAINTIFF'S CONTENTIONS BUT SIMPLY
ENTERED A JUDGMENT IN FAVOR OF THE DEFENDANT, AND RENEWED HIS PRAYER
THAT THE COURT CONSIDER THE MOTION, MODIFY THE JUDGMENT TO SPECIFY THE
GROUNDS UPON WHICH RELIEF WAS GRANTED, AND DISPOSE OF ALL ISSUES RAISED
BY BOTH MOTIONS.  THIS WAS DENIED. 

THE PLAINTIFF APPEALED TO THE CIRCUIT COURT OF APPEALS, WHICH DECIDED
THAT THE DISTRICT COURT ERRED IN HOLDING THE EVIDENCE INSUFFICIENT TO
MAKE A CASE FOR A JURY.  IT REVERSED THE JUDGMENT AND REMANDED THE
CAUSE WITH INSTRUCTIONS TO THE DISTRICT COURT TO ENTER JUDGMENT ON THE
VERDICT IN FAVOR OF THE PLAINTIFF.  FN3  IT OVERRULED THE DEFENDANT'S
CONTENTION THAT THE CASE SHOULD BE REMANDED WITH LEAVE TO THE TRIAL
COURT TO DISPOSE OF THE MOTION FOR A NEW TRIAL. 

THE IMPORTANCE OF A DECISION BY THIS COURT, RESPECTING THE PROPER
PRACTICE UNDER RULE 50(B), AND A CONFLICT OF DECISIONS,  FN4 MOVED US
TO GRANT CERTIORARI. 

THE CIRCUIT COURT OF APPEALS SAID: 

"STRICTLY SPEAKING THE MOTION DID NOT PRAY FOR RELIEF IN THE
'ALTERNATIVE,' GIVING THE COURT A CHOICE BETWEEN TWO PROPOSITIONS
EITHER OF WHICH HE MIGHT GRANT IN THE FIRST INSTANCE.  THE COURT WAS
ASKED TO RULE ON THE MOTION FOR A NEW TRIAL ONLY 'IN THE EVENT' HE
'REFUSES TO SET ASIDE THE VERDICT  ...  AND JUDGMENT  ...  AND REFUSES
TO ENTER JUDGMENT HEREIN IN FAVOR OF THE DEFENDANT.  ...  '  THE COURT
HAVING GRANTED THE PRAYER OF THE MOTION AS MADE DID NOT ERR IN NOT
RULING ON THE MOTION FOR A NEW TRIAL.  THE CONDITION ON WHICH THE COURT
WAS ASKED TO GRANT A NEW TRIAL DID NOT COME INTO EXISTENCE.  THE NEW
RULES ARE NOT INTENDED TO PROLONG LITIGATION BY PERMITTING LITIGANTS TO
TRY CASES PIECEMEAL.  THEIR PURPOSE WOULD NOT BE ACCOMPLISHED IF WHEN
RELIEF IS ASKED ON CONDITION OR IN THE ALTERNATIVE THE SUCCESSFUL PARTY
COULD ON REVERSAL GO BACK TO THE TRIAL COURT AND DEMAND A RULING ON HIS
CONDITIONAL OR ALTERNATIVE PROPOSITION.  THE ORDER SUSTAINING THE
MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT WAS EQUIVALENT TO A
DENIAL OF THE MOTION FOR A NEW TRIAL; AND THE LATTER MOTION PASSED OUT
OF THE CASE UPON THE ENTRY OF THE ORDER." 

THE DEFENDANT CONTENDS THAT THE RULE CONTINUES THE EXISTING PRACTICE
RESPECTING GRANTING OF NEW TRIALS, AND ALSO REGULATES THE PROCEDURE FOR
RENDERING JUDGMENT NOTWITHSTANDING A VERDICT; THAT THE PROVISION FOR AN
ALTERNATIVE MOTION FOR A NEW TRIAL WOULD BE MEANINGLESS AND NUGATORY IF
THE GRANTING OF THE MOTION FOR JUDGMENT OPERATED AUTOMATICALLY TO
DISMISS IT, SINCE THE BASES OF THE TWO MOTIONS ARE, OR MAY BE,
DIFFERENT, AND ORDERLY PROCEDURE REQUIRES THAT THE COURT FIRST RULE ON
THE MOTION FOR JUDGMENT, THE GRANTING OF WHICH RENDERS UNNECESSARY A
RULING UPON THE MOTION FOR A NEW TRIAL, WHICH SHOULD BE RESERVED UNTIL
FINAL DISPOSITION OF THE FORMER. 

THE PLAINTIFF INSISTS THAT THE TRIAL COURT IS LIMITED TO A CHOICE OF
ACTION ON ONE MOTION OR THE OTHER, BUT CANNOT RULE UPON THE MOTION FOR
JUDGMENT AND LEAVE THAT FOR A NEW TRIAL TO BE DISPOSED OF ONLY IF
JUDGMENT NOTWITHSTANDING THE VERDICT IS DENIED.  HE FURTHER ASSERTS, IN
SUPPORT OF THE JUDGMENT BELOW, THAT THE UNCONTRADICTED ALLEGATIONS OF
HIS MOTION IN THE DISTRICT COURT DISCLOSE THAT DEFENDANT ELECTED TO
STAND UPON ITS MOTION FOR JUDGMENT ALONE AND THAT IT CANNOT NOW
REPUDIATE THE POSITION THUS TAKEN. 

WE SHALL CONSIDER THE PLAINTIFF'S CONTENTIONS IN INVERSE ORDER. 

1.  WHILE WE TOOK THE CASE TO REVIEW THE CIRCUIT COURT'S CONSTRUCTION
OF THE RULE, IT IS TRUE THAT IF THE DEFENDANT ELECTED TO STAND ON ITS
MOTION FOR JUDGMENT AND, IN EFFECT, WITHDREW ITS MOTION FOR A NEW
TRIAL, WE DO NOT REACH THE QUESTION INVOLVED IN OUR GRANT OF
CERTIORARI.  WE ARE, HOWEVER, UNABLE TO SPELL OUT ANY SUCH ELECTION OR
WITHDRAWAL.  THE MOTION FOR A NEW TRIAL ASSIGNED GROUNDS NOT
APPROPRIATE TO BE CONSIDERED IN CONNECTION WITH THE MOTION FOR
JUDGMENT.  IT PUT FORWARD CLAIMS THAT THE VERDICT WAS AGAINST THE
WEIGHT OF THE EVIDENCE AND WAS EXCESSIVE; THAT THE COURT ERRED IN
RULINGS ON EVIDENCE AND IN REFUSING REQUESTED INSTRUCTIONS.  AN
AFFIRMATIVE FINDING WITH RESPECT TO ANY OF THESE CLAIMS WOULD HAVE
REQUIRED A NEW TRIAL WHEREAS NONE OF THEM COULD BE CONSIDERED IN
CONNECTION WITH THE MOTION FOR JUDGMENT. 

WE THINK THAT WHEN THE DEFENDANT URGED UPON THE DISTRICT COURT THAT
IT SHOULD NOT DECIDE THE MOTION FOR A NEW TRIAL BECAUSE IT PASSED OUT
OF EXISTENCE AND CONSIDERATION ON THE GRANTING OF THE MOTION FOR
JUDGMENT, ALL THAT DEFENDANT MEANT WAS THAT, HAVING GRANTED THE MOTION
FOR JUDGMENT, THE COURT HAD NO OCCASION TO PASS UPON THE REASONS
ASSIGNED IN SUPPORT OF THE MOTION FOR A NEW TRIAL.  THAT WOULD
OBVIOUSLY HAVE BEEN TRUE IF NO APPEAL HAD BEEN TAKEN FROM THE DISTRICT
COURT'S ACTION OR IF THAT ACTION HAD BEEN AFFIRMED UPON APPEAL. 

2.  WE COME THEN TO THE SUBSTANTIAL QUESTION WHICH MOVED US TO ISSUE
THE WRIT, NAMELY, WHETHER UNDER RULE 50(B) THE DISTRICT COURT'S GRANT
OF THE MOTION FOR JUDGMENT EFFECTED AN AUTOMATIC DENIAL OF THE
ALTERNATIVE MOTION FOR A NEW TRIAL.  WE HOLD THAT IT DID NOT. 

THE RULE WAS ADOPTED FOR THE PURPOSE OF SPEEDING LITIGATION AND
PREVENTING UNNECESSARY RETRIALS.  IT DOES NOT ALTER THE RIGHT OF EITHER
PARTY TO HAVE A QUESTION OF LAW RESERVED UPON THE DECISION OF WHICH THE
COURT MIGHT ENTER JUDGMENT FOR ONE PARTY IN SPITE OF A VERDICT IN FAVOR
OF THE OTHER.  FN5  PRIOR TO THE ADOPTION OF THE RULE, IN ORDER TO
ACCOMPLISH THIS IT WAS NECESSARY FOR THE COURT TO RESERVE THE QUESTION
OF LAW RAISED BY A MOTION TO DIRECT A VERDICT.  FN6  THE PRACTICE WAS
AN INCIDENT OF JURY TRIAL AT COMMON LAW AT THE TIME OF THE ADOPTION OF
THE SEVENTH AMENDMENT TO THE CONSTITUTION.  FN7 

RULE 50(B) MERELY RENDERS UNNECESSARY A REQUEST FOR RESERVATION OF
THE QUESTION OF LAW OR A FORMAL RESERVATION; AND, IN ADDITION,
REGULATES THE TIME AND MANNER OF MOVING FOR DIRECTION AND OF MOVING FOR
JUDGMENT ON THE BASIS OF THE REFUSAL TO DIRECT.  IT ADDS NOTHING OF
SUBSTANCE TO RIGHTS OF LITIGANTS HERETOFORE EXISTING AND AVAILABLE
THROUGH A MORE CUMBERSOME PROCEDURE. 

A MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT DID NOT, AT COMMON
LAW, PRECLUDE A MOTION FOR A NEW TRIAL.  FN8  AND THE LATTER MOTION
MIGHT BE, AND OFTEN WAS, PRESENTED AFTER THE FORMER HAD BEEN DENIED. 
THE RULE WAS NOT INTENDED TO ALTER THE EXISTING RIGHT TO MOVE FOR A NEW
TRIAL THERETOFORE RECOGNIZED AND CONFIRMED BY STATUTE.  FN9  IT PERMITS
THE FILING OF A MOTION FOR JUDGMENT IN THE ABSENCE OF A MOTION FOR A
NEW TRIAL OR THE FILING OF BOTH MOTIONS JOINTLY OR A MOTION FOR A NEW
TRIAL IN THE ALTERNATIVE. 

EACH MOTION, AS THE RULE RECOGNIZES, HAS ITS OWN OFFICE.  THE MOTION
FOR JUDGMENT CANNOT BE GRANTED UNLESS, AS MATTER OF LAW, THE OPPONENT
OF THE MOVANT FAILED TO MAKE A CASE AND, THEREFORE, A VERDICT IN
MOVANT'S FAVOR SHOULD HAVE BEEN DIRECTED.  THE MOTION FOR A NEW TRIAL
MAY INVOKE THE DISCRETION OF THE COURT IN SO FAR AS IT IS BOTTOMED ON
THE CLAIM THAT THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE, THAT
THE DAMAGES ARE EXCESSIVE, OR THAT, FOR OTHER REASONS, THE TRIAL WAS
NOT FAIR TO THE PARTY MOVING; AND MAY RAISE QUESTIONS OF LAW ARISING
OUT OF ALLEGED SUBSTANTIAL ERRORS IN ADMISSION OR REJECTION OF EVIDENCE
OR INSTRUCTIONS TO THE JURY. 

WE ARE OF OPINION THAT THE PROVISION OF THE RULE,  - "A MOTION FOR A
NEW TRIAL MAY BE JOINED WITH THIS MOTION, OR A NEW TRIAL MAY BE PRAYED
FOR IN THE ALTERNATIVE" - DOES NOT CONFINE THE TRIAL JUDGE TO AN
INITIAL CHOICE OF DISPOSING OF EITHER MOTION, THE EXERCISE OF WHICH
CHOICE PRECLUDES CONSIDERATION OF THE REMAINING MOTION.  WE HOLD THAT
THE PHRASE "IN THE ALTERNATIVE" MEANS THAT THE THINGS TO WHICH IT
REFERS ARE TO BE TAKEN NOT TOGETHER BUT ONE IN THE PLACE OF THE OTHER. 
FN10 

THE RULE CONTEMPLATES THAT EITHER PARTY TO THE ACTION IS ENTITLED TO
THE TRIAL JUDGE'S DECISION ON BOTH MOTIONS, IF BOTH ARE PRESENTED.  A
DECISION IN FAVOR OF THE MOVING PARTY UPON THE MOTION FOR JUDGMENT ENDS
THE LITIGATION AND OFTEN MAKES IT POSSIBLE FOR AN APPELLATE COURT TO
DISPOSE OF THE CASE WITHOUT REMANDING IT FOR A NEW TRIAL.  IF, HOWEVER,
AS IN THE PRESENT INSTANCE, THE TRIAL COURT ERRED IN GRANTING THE
MOTION THE PARTY AGAINST WHOM THE VERDICT WENT IS ENTITLED TO HAVE HIS
MOTION FOR A NEW TRIAL CONSIDERED IN RESPECT OF ASSERTED SUBSTANTIAL
TRIAL ERRORS AND MATTERS APPEALING TO THE DISCRETION OF THE JUDGE.  IN
THIS CASE THE REASONS ASSIGNED IN SUPPORT OF THE MOTION FOR A NEW TRIAL
WERE IN BOTH CATEGORIES.  THE GROUNDS ASSIGNED FOR A NEW TRIAL HAVE NOT
BEEN CONSIDERED BY THE COURT.  IN THE CIRCUMSTANCES HERE DISCLOSED THE
UNIFORM PRACTICE IN STATE APPELLATE COURTS HAS BEEN TO REMAND THE CASE
TO THE TRIAL COURT WITH LEAVE TO PASS UPON THE MOTION FOR NEW TRIAL. 
FN11 

THE PLAINTIFF URGES THAT, WHEREAS THE RULE WAS INTENDED TO EXPEDITE
LITIGATION, TO PREVENT UNNECESSARY TRIALS, AND TO SAVE THE TIME OF
COURTS AND LITIGANTS, THE COURSE URGED BY THE DEFENDANT TENDS TO EXTEND
THE DURATION OF LITIGATION, TO CREATE UNNECESSARY HARDSHIP, AND TO
DEFEAT THE PURPOSE OF THE RULE.    WE ARE OF OPINION THAT THE POSITION
IS UNTENABLE.  THIS CASE WELL ILLUSTRATES THE EFFICACY OF THE PROCEDURE
SANCTIONED BY THE RULE.  IN VIEW OF THE TRIAL JUDGE'S CONCLUSION THAT
THE PLAINTIFF FAILED TO MAKE OUT A CASE FOR THE JURY HE WOULD, UNDER
THE EARLIER PRACTICE, SIMPLY HAVE GRANTED A NEW TRIAL.  UPON THE NEW
TRIAL, THE JUDGE, IF HIS VIEW AS TO THE LAW REMAINED UNCHANGED, WOULD
HAVE DIRECTED A VERDICT FOR THE DEFENDANT.  THE ONLY RECOURSE OF THE
PLAINTIFF WOULD HAVE BEEN AN APPEAL FROM THIS SECOND JUDGMENT.  IF THE
APPELLATE COURT HAD BEEN OF THE VIEW IT HERE EXPRESSED, IT WOULD HAVE
REVERSED THAT JUDGMENT AND REMANDED THE CAUSE FOR A THIRD TRIAL.  UPON
SUCH THIRD TRIAL, IF THE TRIAL COURT HAD RULED UPON THE EVIDENCE AND
GIVEN THE INSTRUCTIONS TO WHICH THE DEFENDANT OBJECTS A JUDGMENT FOR
THE PLAINTIFF WOULD HAVE BEEN THE SUBJECT OF A THIRD APPEAL AND, IF THE
DEFENDANT'S POSITION WERE SUSTAINED BY THE APPELLATE COURT, THE CAUSE
WOULD BE REMANDED FOR A FOURTH TRIAL AT WHICH PROPER RULINGS WOULD BE
RENDERED AND PROPER INSTRUCTIONS GIVEN. 

MUCH OF THE DELAY FORMERLY ENCOUNTERED MAY BE AVOIDED BY PURSUING THE
COURSE FOR WHICH THE DEFENDANT CONTENDS.  BUT THE COURTS SHOULD SO
ADMINISTER THE RULE AS TO ACCOMPLISH ALL THAT IS PERMISSIBLE UNDER ITS
TERMS.  IS IT NECESSARY, IF THE TRIAL JUDGE'S ORDER FOR JUDGMENT BE
REVERSED ON APPEAL, THAT ONLY THEREAFTER HE DEAL WITH THE ALTERNATIVE
MOTION?  IF SO, AND HE THEN REFUSES TO SET ASIDE THE ORIGINAL JUDGMENT,
A SECOND APPEAL WILL LIE,  - NOT FROM HIS ORDER DENYING A NEW TRIAL,
FOR THAT ORDER, SAVE IN MOST EXCEPTIONAL CIRCUMSTANCES, IS NOT
APPEALABLE N12, BUT FROM THE JUDGMENT ENTERED ON THE VERDICT, FOR
ERRORS OF LAW COMMITTED ON THE TRIAL.  CAN SUCH A SECOND APPEAL BE
AVOIDED IN THE INTEREST OF SPEEDING LITIGATION?  WE THINK SO. 

IF ALTERNATIVE PRAYERS OR MOTIONS ARE PRESENTED, AS HERE, WE HOLD
THAT THE TRIAL JUDGE SHOULD RULE ON THE MOTION FOR JUDGMENT.  WHATEVER
HIS RULING THEREON HE SHOULD ALSO RULE ON THE MOTION FOR A NEW TRIAL,
INDICATING THE GROUNDS OF HIS DECISION.  IF HE DENIES A JUDGMENT N.O.V.
AND ALSO DENIES A NEW TRIAL THE JUDGMENT ON THE VERDICT STANDS, AND THE
LOSING PARTY MAY APPEAL FROM THE JUDGMENT ENTERED UPON IT, ASSIGNING AS
ERROR BOTH THE REFUSAL OF JUDGMENT N.O.V. AND ERRORS OF LAW IN THE
TRIAL, AS HERETOFORE.  FN13 THE APPELLATE COURT MAY REVERSE THE FORMER
ACTION AND ITSELF ENTER JUDGMENT N.O.V. OR IT MAY REVERSE AND REMAND
FOR A NEW TRIAL FOR ERRORS OF LAW.  IF THE TRIAL JUDGE, AS HE DID HERE,
GRANTS JUDGMENT N.O.V. AND DENIES THE MOTION FOR A NEW TRIAL, THE PARTY
WHO OBTAINED THE VERDICT MAY, AS HE DID HERE, APPEAL FROM THAT
JUDGMENT.  ESSENTIALLY, SINCE HIS ACTION IS SUBJECT TO REVIEW, THE
TRIAL JUDGE'S ORDER IS AN ORDER NISI.  THE JUDGMENT ON THE VERDICT MAY
STILL STAND, BECAUSE THE APPELLATE COURT MAY REVERSE THE TRIAL JUDGE'S
ACTION.  THIS BEING SO, WE SEE NO REASON WHY THE APPELLEE MAY NOT, AND
SHOULD NOT, CROSS-ASSIGN ERROR, IN THE APPELLANT'S APPEAL, TO RULINGS
OF LAW AT THE TRIAL, SO THAT IF THE APPELLATE COURT REVERSES THE ORDER
FOR JUDGMENT N.O.V., IT MAY PASS ON THE ERRORS OF LAW WHICH THE
APPELLEE ASSERTS NULLIFY THE JUDGMENT ON THE VERDICT.  FN14 

SHOULD THE TRIAL JUDGE ENTER JUDGMENT N.O.V. AND, IN THE ALTERNATIVE,
GRANT A NEW TRIAL ON ANY OF THE GROUNDS ASSIGNED THEREFOR, HIS
DISPOSITION OF THE MOTION FOR A NEW TRIAL WOULD NOT ORDINARILY BE
REVIEWABLE,  FN15  AND ONLY HIS ACTION IN ENTERING JUDGMENT WOULD BE
GROUND OF APPEAL.  IF THE JUDGMENT WERE REVERSED, THE CASE, ON REMAND,
WOULD BE GOVERNED BY THE TRIAL JUDGE'S AWARD OF A NEW TRIAL. 

WE MIGHT REVERSE AND DIRECT THAT THE CAUSE BE REMANDED TO THE
DISTRICT COURT TO PASS ON BOTH MOTIONS.  BUT THAT COURSE WOULD, IN THE
CIRCUMSTANCES, BE NEITHER FAIR NOR PRACTICAL.  AS RESPECTS FEDERAL
COURTS, THE PROCEDURE PERMITTED BY THE RULE IS NOVEL.  THE PROVISION
WHICH IS INVOLVED IN THIS CASE SUBSTANTIALLY FOLLOWS THE FIRST STATE
STATUTE TO AUTHORIZE SUCH PROCEDURE.  FN16  THE SUPREME COURT OF THAT
STATE HAS CONSTRUED THE STATUTE TO PERMIT THE TRIAL JUDGE TO PASS ON
THE MOTION FOR JUDGMENT, LEAVING THE MOTION FOR A NEW TRIAL FOR LATER
DISPOSITION.  IN THE EVENT THAT HIS DECISION IS REVERSED, THE PRACTICE
IS TO REMAND THE CAUSE WITH LEAVE TO THE TRIAL JUDGE TO PASS UPON THE
MOTION FOR A NEW TRIAL.  FN17  IT WAS THEREFORE NOT UNNATURAL FOR THE
DEFENDANT TO ADVOCATE THAT COURSE, OR FOR THE TRIAL JUDGE TO FOLLOW
IT. 

IN THE CIRCUMSTANCES, WE THINK THE FAILURE OF THE DISTRICT COURT TO
RULE IN THE ALTERNATIVE ON BOTH MATTERS CAN BE CURED WITHOUT DEPRIVING
THE DEFENDANT OF OPPORTUNITY TO HAVE ITS MOTION FOR A NEW TRIAL HEARD
AND DECIDED BY THE TRIAL COURT, BY MODIFYING THE JUDGMENT BELOW TO
PROVIDE THAT THE CAUSE BE REMANDED TO THE DISTRICT COURT TO HEAR AND
RULE UPON THAT MOTION.  MODIFIED. 

FN1  308 U.S. APPENDIX, P. 63; U.S.C., TIT. 28, SEC. 723C ADDENDUM. 
"WHENEVER A MOTION FOR A DIRECTED VERDICT MADE AT THE CLOSE OF ALL THE
EVIDENCE IS DENIED OR FOR ANY REASON IS NOT GRANTED, THE COURT IS
DEEMED TO HAVE SUBMITTED THE ACTION TO THE JURY SUBJECT TO A LATER
DETERMINATION OF THE LEGAL QUESTIONS RAISED BY THE MOTION.  WITHIN 10
DAYS AFTER THE RECEPTION OF A VERDICT, A PARTY WHO HAS MOVED FOR A
DIRECTED VERDICT MAY MOVE TO HAVE THE VERDICT AND ANY JUDGMENT ENTERED
THEREON SET ASIDE AND TO HAVE JUDGMENT ENTERED IN ACCORDANCE WITH HIS
MOTION FOR A DIRECTED VERDICT; OR IF A VERDICT WAS NOT RETURNED SUCH
PARTY, WITHIN 10 DAYS AFTER THE JURY HAS BEEN DISCHARGED, MAY MOVE FOR
JUDGMENT IN ACCORDANCE WITH HIS MOTION FOR A DIRECTED VERDICT.  A
MOTION FOR A NEW TRIAL MAY BE JOINED WITH THIS MOTION, OR A NEW TRIAL
MAY BE PRAYED FOR IN THE ALTERNATIVE.  IF A VERDICT WAS RETURNED THE
COURT MAY ALLOW THE JUDGMENT TO STAND OR MAY REOPEN THE JUDGMENT AND
EITHER ORDER A NEW TRIAL OR DIRECT THE ENTRY OF JUDGMENT AS IF THE
REQUESTED VERDICT HAD BEEN DIRECTED.  IF NO VERDICT WAS RETURNED THE
COURT MAY DIRECT THE ENTRY OF JUDGMENT AS IF THE REQUESTED VERDICT HAD
BEEN DIRECTED OR MAY ORDER A NEW TRIAL." 

FN2  27 F.SUPP.  4. 

FN3  108 F.2D 848. 

FN4  PRUITT V. HARDWARE DEALERS MUTUAL FIRE INS. CO., 112 F.2D 140;
PESSAGNO V. EUCLID INVESTMENT CO., 112 F.2D 577.  OTHER CASES CITED
SEEM NOT TO HAVE RAISED THE PRECISE QUESTION HERE PRESENTED.  LEADER V.
APEX HOSIERY CO., 108 F.2D 71; AFFIRMED 310 U.S. 469; MASSACHUSETTS
PROTECTIVE ASSN. V. MOUBER, 110 F.2D 203; LOWDEN V. DENTON, 110 F.2D
274; RELIANCE LIFE INS. CO. V. BURGESS, 112 F.2D 234; FERRO CONCRETE
CONSTRUCTION CO. V. UNITED STATES, 112 F.2D 488; WILLIAMS V. NEW JERSEY
NEW YORK TRANSIT CO., 113 F.2D 649; SOUTHERN RY. CO. V. BELL, 114 F.2D
341. 

FN5  COMPARE SLOCUM V. NEW YORK LIFE INS. CO., 228 U.S. 364 WITH
BALTIMORE & CAROLINA LINE V. REDMAN, 295 U.S. 654. 

FN6  BALTIMORE & CAROLINA LINE V. REDMAN, SUPRA, 659. 

FN7  IBID., 660. 

FN8  THOMPSON, TRIALS, (2D ED.)  SEC.  2726; BRANNON V. MAY, 42 IND.
92; STONE V. HAWKEYE INS. CO., 68 IOWA 737; TOMBERLIN V. CHICAGO, ST.
P., M. & O. RY. CO., 211 WIS. 144, 148; 246 N.W. 571; 248 N.W. 121. 

FN9  SEE RULE 59(A), 28 U.S.C. 723C ADDENDUM, CF. JUDICIAL CODE SEC.
269, AS AMENDED, 28 U.S.C. SEC. 391. 

FN10  THE WORD "ALTERNATIVE" MAY BE USED PROPERLY IN THIS SENSE.  SEE
WEBSTER'S INTERNATIONAL DICTIONARY, SECOND EDITION. 

FN11  BRYAN V. INSPIRATION CONSOL.  COPPER CO., 24 ARIZ. 47; 206 P.
402; ESTATE OF CALDWELL, 216 CAL. 694; 16 P.2D 139; HAYDEN V. JOHNSON,
59 GA. 105; CHICAGO & N.W. RY. CO. V. DIMICK, 96 ILL. 42; DANIELS V.
BUTLER, 175 IOWA 439; 155 N.W. 1013; LINKER V. UNION PAC. R. CO., 87
KAN. 186; 123 P. 745; CUMMINS' ESTATE, 271 MICH 215; 259 N.W. 894; KIES
V. SEARLES, 146 MINN. 359; 178 N.W. 811; CENTRAL METROPOLITAN BANK V.
FIDELITY & CASUALTY CO., 159 MINN. 28; 198 N.W. 137; WEGMANN V.
MINNEAPOLIS STREET RY. CO., 165 MINN. 41; 205 N.W. 433; TROVATTEN V.
HANSON, 171 MINN. 130; 213 N.W. 536; FISK V. HENARIE, 15 ORE.  89; 13
P. 760; OSCHE V. NEW YORK LIFE INS. CO., 324 PA. 1; 187 A. 396;
ALTOMARI V. KRUGER, 325 PA. 235; 188 A. 828; RASKE V. NORTHERN PACIFIC
RY. CO., 74 WASH. 155; 132 P. 865; MCLAIN V. EASLEY, 146 WASH. 377; 262
P. 975; 264 P. 714.  STATUTORY PROVISIONS OR RULES RENDER IT POSSIBLE
IN SOME STATES TO BRING THE GROUNDS FOR NEW TRIAL OR THE ACTION OF THE
TRIAL COURT ON THE MOTION FOR NEW TRIAL BEFORE THE APPELLATE COURT. 
SEE PETERS V. AETNA LIFE INS. CO., 282 MICH. 426; 276 N.W. 504; KAUDERS
V. EQUITABLE LIFE ASSURANCE SOCIETY, 299 ILL. APP. 152; 19 N.E. 630;
DOCHTERMANN VAN & EXPRESS CO. V. FISS, DOERR & CARROLL HORSE CO., 155
APP. DIV. (N.Y.)  162; 140 N.Y.S. 72. 

FN12  SEE FAIRMOUNT GLASS WORKS V. CUB FORK COAL CO., 287 U.S. 474,
481-485. 

FN13  HALL V. WEARE, 92 U.S. 728, 732. 

FN14  THIS PROCEDURE IS PRESCRIBED UNDER A STATUTE AND A
SUPPLEMENTARY COURT RULE IN MICHIGAN; PETERS V. AETNA LIFE INS. CO.,
282 MICH. 426; 276 N.W. 504, AND PERHAPS IS INDICATED IN WISCONSIN IN
THE ABSENCE OF STATUTE OR FORMAL RULE:  TOMBERLIN V. CHICAGO, ST. P.,
M. & O. RY. CO., 211 WIS. 144, 149; 246 N.W. 571; 248 N.W. 121. 

FN15  UNITED STATES V. YOUNG, 94 U.S. 258; YOUNG V. UNITED STATES, 95
U.S. 641; PHILLIPS V. NEGLEY, 117 U.S. 665, 671; HUME V. BOWIE, 148
U.S. 245; FAIRMOUNT GLASS WORKS V. CUB FORK COAL CO., SUPRA. 

FN16  2 MASON'S MINNESOTA STATUTES (1927) SEC. 9495. 

FN17  SEE THE MINNESOTA CASES CITED IN NOTE 11. 
..END :




















STEVENS CO. V. FOSTER & KLEISER CO., 311 U.S. 255 


NO. 41.  ARGUED NOVEMBER 19, 20, 1940.  - DECIDED DECEMBER 9, 1940.  -
109 F.2D 764, REVERSED. 


A COMPLAINT IN A SUIT FOR TRIPLE DAMAGES UNDER THE SHERMAN ANTITRUST
ACT, BROUGHT BY A POSTER ADVERTISING COMPANY AGAINST OTHERS ENGAGED IN
THAT BUSINESS, ADEQUATELY ALLEGED A CONSPIRACY BY THE DEFENDANTS TO
MONOPOLIZE THE BUSINESS OF BILL POSTING BY RESTRAINING INTERSTATE
COMMERCE IN THE TRANSPORTATION OF POSTERS.  THE COMPLAINT ALLEGED ALSO,
AS PART OF THE GENERAL CONSPIRACY, LOCAL ACTS OF THE DEFENDANTS AIMED
AT PREVENTING THE COMPLAINANT FROM OBTAINING SITES FOR POSTING AND
SIGNS.  INJURY AND DAMAGE TO THE COMPLAINANT, INCLUDING LOSS OF
BUSINESS AND PROFITS, WERE ALLEGED.  HELD: 

1.  THE DAMAGE ALLEGED COULD NOT BE REGARDED AS HAVING BEEN THE
CONSEQUENCE SOLELY OF THE LOCAL ACTS OF THE DEFENDANTS; AND THE
ALLEGATIONS OF DAMAGE, THOUGH GENERAL, WERE ADEQUATE.  P. 260. 

2.  IT WAS NOT NECESSARY IN ORDER TO STATE A CAUSE OF ACTION THAT THE
COMPLAINANT ALLEGE IT WAS UNABLE, AS A RESULT OF DEFENDANTS'
ACTIVITIES, TO OBTAIN POSTERS.  P. 261. 

C.E. STEVENS COMPANY ET AL. V. FOSTER & KLEISER CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 310 U.S. 618, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING THE COMPLAINT IN A SUIT FOR TRIPLE DAMAGES UNDER THE SHERMAN
ANTITRUST ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE PETITIONERS FILED A COMPLAINT  FN1  IN THE DISTRICT
COURT FOR WESTERN WASHINGTON UNDER SEC. 7 OF THE SHERMAN ACT,  FN2  FOR
TRIPLE DAMAGES FOR ALLEGED VIOLATION BY THE RESPONDENTS OF SECS. 1 AND
2 OF THE ACT.  FN3  THE RESPONDENTS DEMURRED TO THE AMENDED COMPLAINT
FOR FAILURE TO STATE A CAUSE OF ACTION.  THE DISTRICT COURT TREATED THE
DEMURRER AS A MOTION TO DISMISS AND DISMISSED THE COMPLAINT.  THE
CIRCUIT COURT OF APPEALS AFFIRMED THE JUDGMENT.  FN4 

THE QUESTION PRESENTED IS WHETHER THE COMPLAINT ALLEGES DAMAGE TO THE
PETITIONERS CONSEQUENT UPON A CONSPIRACY TO CREATE A MONOPOLY IN THE
BUSINESS OF BILL POSTING IN THE PACIFIC COAST REGION AND TO ACCOMPLISH
THAT MONOPOLY BY RESTRAINING INTERSTATE COMMERCE IN THE TRANSPORTATION
OF POSTERS. 

THE RELEVANT ALLEGATIONS OF THE COMPLAINT MAY BE SUMMARIZED. 

THE PETITIONER C.E. STEVENS COMPANY IS ENGAGED IN THE BUSINESS OF
OUTDOOR ADVERTISING, WHICH IS THE BUSINESS OF PROCURING LOCATIONS AND
ERECTING STRUCTURES THEREON FOR THE POSTING OF BILLS AND THE PAINTING
OF SIGNS.  ITS BUSINESS IS CONDUCTED IN WASHINGTON AND OTHER STATES. 
MORE SPECIFICALLY, THE PETITIONER'S ACTIVITIES ARE THE SOLICITING,
ENTERING INTO, AND EXECUTION OF CONTRACTS FOR POSTER SERVICE FOR THE
DISPLAY OF POSTERS, PAINTED BULLETINS, AND WALL DISPLAYS.  THESE
CONTRACTS ARE SECURED FROM ADVERTISERS, THEIR REPRESENTATIVES, AND
ADVERTISING AGENCIES LOCATED THROUGHOUT THE UNITED STATES AND
CONSTITUTE AGREEMENTS WHEREBY THE PARTIES ARE TO SHIP POSTERS,
LITHOGRAPHS, DESIGNS, STENCILS, ETC., INTERSTATE WITH THE PURPOSE THAT
THE POSTERS OR LITHOGRAPHS SHALL BE PLACED UPON BILLBOARDS AND THE
OTHER MATERIAL USED FOR PAINTING SIGNS ON LOCATIONS CONTROLLED BY THE
BILL POSTING COMPANY.  FOSTER & KLEISER CO., ONE OF THE RESPONDENTS, IS
ENGAGED IN THE SAME BUSINESS IN THE PACIFIC COAST STATES AND
ELSEWHERE.  THE OTHER RESPONDENTS ARE CONNECTED WITH AND CONTROLLED BY
FOSTER & KLEISER CO. OR ITS SUBSIDIARY, RESTOP REALTY CO., THE LATTER
BEING IN THE BUSINESS OF OWNING, HOLDING, AND LEASING PROPERTY FOR
OUTDOOR ADVERTISING SITES ON THE PACIFIC COAST. 

THE USUAL ROUTINE OF THE BUSINESS IS THAT THE ADVERTISER, DIRECTLY OR
THROUGH AN AGENCY, CONTRACTS WITH A LITHOGRAPHER FOR MAKING POSTERS. 
THE ADVERTISER, EITHER PERSONALLY OR THROUGH AN AGENCY, CONTRACTS WITH
A BILL POSTING COMPANY IN THE DESIRED LOCALITY FOR THE PLACING OF THE
POSTERS.  THE ADVERTISER THEN FORWARDS THE POSTERS TO THE BILL POSTER
OR ORDERS THE LITHOGRAPHER TO FORWARD THEM.  FOSTER & KLEISER CO. IS
OPERATING UNDER NUMEROUS CONTRACTS THUS MADE. 

FOSTER & KLEISER CO. FORMULATED AND ENTERED INTO A PLAN, SCHEME, AND
CONSPIRACY WITH OTHERS FOR THE PURPOSE OF MONOPOLIZING ALL BRANCHES OF
THE OUTDOOR ADVERTISING BUSINESS IN THE PACIFIC COAST AREA AND
PREVENTING PETITIONER AND OTHER INDEPENDENTS, SO-CALLED, FROM ENGAGING
IN THAT BUSINESS AND SECURING AND EXECUTING CONTRACTS THEREFOR AND FROM
SECURING POSTERS FOR USE THEREIN.  THE PURPOSE OF THE CONSPIRATORS WAS
TO PREVENT LITHOGRAPHERS FROM SUPPLYING POSTERS TO INDEPENDENTS,
INCLUDING PETITIONER, OR TO ADVERTISERS WHO WERE CUSTOMERS OF
PETITIONER AND TO PREVENT INDEPENDENTS FROM SECURING ADEQUATE SITES FOR
THE DISPLAY OF POSTERS. 

THE BILL ASSERTS THAT THERE IS AN ASSOCIATION OF PAINT PLANT  FN5
OPERATORS AND POSTER PLANT OPERATORS, KNOWN AS "OUTDOOR ADVERTISING
ASSOCIATION OF AMERICA, INC.," OF WHICH THE OWNERS OF SEPARATE PLANTS
LOCATED IN SEPARATE CITIES ARE MEMBERS.  THERE IS ONE MEMBERSHIP FOR
EACH MUNICIPALITY.  VOTING RIGHTS ARE ACCORDING TO THE NUMBER OF
SEPARATE PLANTS OWNED AND OPERATED BY EACH VOTING MEMBER.  FOSTER &
KLEISER CO. HAS SOME SIX HUNDRED PLANTS WITH CONCOMITANT VOTING
RIGHTS.  BY VIRTUE OF ITS VOICE IN THE MANAGEMENT OF THE ASSOCIATION,
AND PURSUANT TO THE CONSPIRACY, IT CAUSED THE ASSOCIATION TO THREATEN
TO REFUSE, AND TO REFUSE, TO POST LITHOGRAPHS IF THE MANUFACTURERS
THEREOF SOLD OR FURNISHED THEM FOR POSTING BY INDEPENDENT PLANTS OR
FURNISHED SAMPLES OF POSTERS TO INDEPENDENT PLANTS, WITH THE AIM AND
EFFECT OF COERCING AND INTIMIDATING THE LITHOGRAPHERS SO AS TO PREVENT
AND HAMPER THE PETITIONER AND OTHER COMPETITORS OF THE ASSOCIATION'S
PLANTS, AND OF THE RESPONDENTS, FROM SECURING SAMPLES OR LITHOGRAPHS. 
ACTUAL OBSTRUCTION AND HINDRANCE OF THE INDEPENDENTS, INCLUDING THE
PETITIONER, RESULTED.  PURSUANT TO THE CONSPIRACY, THE ASSOCIATION AND
THE CONSPIRATORS THREATENED TO REFUSE, AND HAVE REFUSED, TO POST
POSTERS AND LITHOGRAPHS FOR ADVERTISERS IF THEY PATRONIZED OR MADE
CONTRACTS WITH INDEPENDENT PLANTS.  IN ADDITION, THE CONSPIRATORS
REFUSED TO EXECUTE ANY PORTION OF NATIONAL CONTRACTS FOR OUTDOOR
ADVERTISING IF ANY PART OF THE WORK HAD BEEN EXECUTED, OR WAS TO BE
EXECUTED BY AN INDEPENDENT PLANT.  THE MOVEMENT IN INTERSTATE COMMERCE
OF POSTERS, LITHOGRAPHS, AND DESIGNS FOR OUTDOOR ADVERTISING WAS THUS
ATTEMPTED TO BE MONOPOLIZED, WAS MONOPOLIZED, AND WAS UNREASONABLY
RESTRAINED BY THE RESPONDENTS. 

OTHER ALLEGATIONS ARE MADE WITH RESPECT TO AGREEMENTS BROUGHT ABOUT
BY THE FOSTER & KLEISER CO. AND OTHER BILL POSTING CONCERNS TO EXCLUDE
THE PETITIONER AND OTHER INDEPENDENTS FROM PARTICIPATION IN THE
NATIONAL BUSINESS OF ADVERTISING.  IT IS ALSO ALLEGED THAT THE
RESPONDENTS RESORTED TO VARIOUS OTHER ILLEGAL AND UNFAIR ACTS AND MEANS
IN THE PETITIONER'S LOCALITY IN AN EFFORT TO PREVENT PETITIONER FROM
OBTAINING SITES FOR POSTING LITHOGRAPHS AND DISPLAYING ADVERTISING
SIGNS, AS PART OF THE SAME GENERAL CONSPIRACY AND FOR THE SAME ULTIMATE
PURPOSE.  WE DO NOT FURTHER SET OUT THESE ALLEGATIONS BECAUSE ENOUGH
HAS BEEN SAID TO INDICATE THE QUESTION ON WHICH THE CASE TURNS. 

THE RESPONDENTS CONCEDED IN THE COURT BELOW, AND HERE, THAT THE
COMPLAINT CHARGES A CONSPIRACY IN RESTRAINT OF INTERSTATE COMMERCE,
WITHIN THE PURVIEW OF THE SHERMAN ACT, IN VIEW OF THE DECISION IN
RAMSAY CO. V. ASSOCIATED BILL POSTERS, 260 U.S. 501. 

THE COURT BELOW, HOWEVER, AGREED WITH THE RESPONDENTS THAT THE
COMPLAINT FAILS TO ALLEGE THAT THE CONSPIRACY, SO FAR AS IT AFFECTED
INTERSTATE COMMERCE, WAS EFFECTIVE TO INJURE PETITIONER, SINCE THERE
WAS NO ALLEGATION THAT RESPONDENTS' CONDUCT PREVENTED THE PETITIONER
FROM OBTAINING OR RECEIVING ANY POSTERS.  IT THOUGHT THE ALLEGATIONS OF
DAMAGE TO PETITIONER'S BUSINESS WERE DIRECTED TO THE LOCAL ACTS OF THE
RESPONDENTS RATHER THAN TO ANY RESTRAINT OF INTERSTATE COMMERCE IN
POSTERS; AND, AS PURELY LOCAL ACTIVITIES WERE THE GRAVAMEN OF THE
COMPLAINT, NO VIOLATION OF THE SHERMAN ACT WAS SUFFICIENTLY CHARGED. 
THIS, UPON THE PRINCIPLE THAT LOCAL ACTIVITIES PURSUED WITHOUT INTENT
TO HINDER OR RESTRAIN INTERSTATE COMMERCE, ALTHOUGH THEY INDIRECTLY
AFFECT IT, CANNOT FLOW FROM OR SUSTAIN A FINDING OF CONSPIRACY TO
INTERFERE WITH OR RESTRAIN SUCH COMMERCE. 

THE PETITIONER URGES THAT THE COMPLAINT CHARGES A GENERAL CONSPIRACY
TO MONOPOLIZE THE BILL POSTING BUSINESS ON THE PACIFIC COAST AND, AS
ONE OF THE MEANS OF SUCH MONOPOLY, TO RESTRAIN INTERSTATE COMMERCE IN
POSTERS CONTRIBUTING TO THE RESULTING INJURY OF THE PETITIONER.  IT
INSISTS THAT THE COURT BELOW WAS WRONG IN CONSTRUING THE COMPLAINT AS
CHARGING A MONOPOLY OF LOCAL BUSINESS NOT INTENDED TO AFFECT INTERSTATE
COMMERCE. 

WE HOLD THAT THE COMPLAINT ALLEGES A CONSPIRACY IN VIOLATION OF SECS.
1 AND 2 OF THE SHERMAN ACT.  THE OBJECT OF IT IS TO MONOPOLIZE OR TO
RESTRAIN TRADE IN THE BILL POSTING BUSINESS ON THE PACIFIC COAST, AND
IN AID OF THAT PURPOSE, TO RESTRAIN INTERSTATE COMMERCE IN POSTERS; AND
THE COMPLAINT SUFFICIENTLY ALLEGES THAT SUCH MONOPOLY AND RESTRAINT
INFLICTED DAMAGE UPON THE PETITIONER. 

AS WE HAVE SAID, THE COMPLAINT ALLEGES THAT THE PETITIONER SOLICITS
CONTRACTS FOR POSTER ADVERTISING AS DOES THE RESPONDENT, FOSTER &
KLEISER CO. THE PETITIONER IS THUS IN COMPETITION WITH FOSTER & KLEISER
CO. IN THE EFFORT TO OBTAIN CONTRACTS WHICH CALL FOR THE INTERSTATE
SHIPMENT OF POSTERS FOR THEIR EXECUTION.  THE COMPLAINT ADEQUATELY
CHARGES A CONSPIRACY TO RESTRAIN THE TRANSPORTATION OF POSTERS IN
INTERSTATE COMMERCE, IN AID OF THE ATTEMPTED MONOPOLY.  IT ALSO CHARGES
OTHER MEANS AND ACTS, LOCAL IN CHARACTER, WITH THE SAME AIM.  THE
CONSPIRACY, WITH ITS EFFECT ON INTERSTATE COMMERCE, IS ALLEGED TO HAVE
CAUSED THE PETITIONER GREAT EXPENSE AND LOSS OF PROFITS; TO HAVE
RESTRAINED AND PREVENTED PETITIONER FROM ESTABLISHING A BUSINESS IN SAN
FRANCISCO, "ALL TO THE GREAT INJURY AND DAMAGE OF PLAINTIFF."  THE
PLEADING FURTHER ALLEGES THAT THE RESPONDENTS' ACTS WERE INJURIOUS TO
THE PETITIONER, EXCLUDED PETITIONER FROM FAIR COMPETITION, AND CHARGES
THAT BECAUSE OF PETITIONER'S INABILITY TO COMPETE WITH RESPONDENTS,
PETITIONER "HAS BEEN DAMAGED IN THAT ITS BUSINESS WAS RENDERED
UNPROFITABLE, AND THE PROFITS OF ITS SAID TRADE AND COMMERCE HAVE
DIMINISHED, AND THE PLAINTIFF COMPANY HAS SUFFERED LOSS AND BEEN
DAMAGED THEREBY." 

WHILE THESE ALLEGATIONS ARE GENERAL, WE CANNOT SAY THAT THEY ARE
INADEQUATE NOR ARE WE ABLE TO AGREE WITH THE COURT BELOW THAT THEY ARE
COUPLED WITH AND TREATED SOLELY AS THE CONSEQUENCE OF LOCAL ACTIVITIES
OF THE RESPONDENTS. 

WE THINK THAT, IN ORDER TO STATE A CAUSE OF ACTION, THE PETITIONER
WAS NOT BOUND TO AVER THAT IT HAD BEEN WHOLLY UNABLE TO OBTAIN
POSTERS. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY TO THIS OPINION.  REVERSED. 

FN1  THE SUIT WAS BROUGHT BY THE C.E. STEVENS COMPANY AND TWO
SUBSIDIARIES.  THE COMPLAINT IS IN THREE COUNTS, THE FIRST SETTING
FORTH THE CLAIM OF THE PARENT COMPANY, AND EACH OF THE OTHERS THE CLAIM
OF ONE OF THE SUBSIDIARIES, AGAINST THE RESPONDENTS.  SAVE AS TO THE
LOCALE OF THE PLAINTIFFS' BUSINESS, AND THE AMOUNT OF DAMAGES DEMANDED,
THE COUNTS ARE SUBSTANTIALLY ALIKE.  WE SHALL REFER TO THE FIRST COUNT
AS THE COMPLAINT.  THE DISTRICT COURT DID NOT PASS ON THE QUESTION OF
THE PROPRIETY OF THE JOINDER OF THE SEVERAL CAUSES OF ACTION, WHICH WAS
RAISED BY THE DEMURRER, AND WE EXPRESS NO OPINION UPON IT. 

FN2  ACT OF OCT. 15, 1914, C. 323, SEC. 4, 38 STAT. 731, 15 U.S.C.
SEC. 15. 

FN3  ACT OF JULY 2, 1890, C. 647, SECS. 1 AND 2, 26 STAT. 209; 15
U.S.C. SECS. 1 AND 2. 

FN4  109 F.2D 764. 

FN5  A PLANT IS A GROUP OF SIGN LOCATIONS OWNED OR CONTROLLED BY ONE
BILL POSTER IN ONE CITY OR COMMUNITY. 
..END :















BOWMAN V. LOPERENA, 311 U.S. 262 


NO. 59.  SUBMITTED NOVEMBER 20, 1940.  - DECIDED DECEMBER 9, 1940.  -
110 F.2D 348, REVERSED. 


1.  A PETITION IN THE BANKRUPTCY COURT FOR A REHEARING, FROM THE
DENIAL OF WHICH AN APPEAL WAS TAKEN TO THE CIRCUIT COURT OF APPEALS IN
THIS CASE, HELD A PETITION FOR REHEARING OF AN ORDER ADJUDGING THE
DEBTOR A BANKRUPT.  P. 265. 

2.  WHERE A PETITION FOR REHEARING OF AN ORDER OF THE BANKRUPTCY
COURT ADJUDGING THE DEBTOR A BANKRUPT IS ALLOWED TO BE FILED OUT OF
TIME, AND THE COURT UPON CONSIDERATION OF THE MERITS DENIES THE
PETITION, THE TIME FOR THE TAKING OF AN APPEAL FROM THE ORDER OF
ADJUDICATION RUNS NOT FROM THE DATE OF SUCH ORDER BUT FROM THE DATE OF
THE DENIAL OF THE PETITION FOR REHEARING.  P. 266. 

BOWMAN V. LOPERENA ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 310 U.S. 621, TO REVIEW THE DISMISSAL OF AN APPEAL FROM
AN ORDER OF THE BANKRUPTCY COURT ADJUDICATING THE DEBTOR A BANKRUPT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION FOR DECISION IS WHETHER THE CIRCUIT COURT OF
APPEALS PROPERLY DISMISSED AS UNTIMELY AN APPEAL FROM AN ORDER MADE BY
A DISTRICT COURT SITTING IN BANKRUPTCY. 

THE PROCEEDING WAS INITIATED BY THE PETITIONER, HEREINAFTER SPOKEN OF
AS THE DEBTOR, IN THE DISTRICT COURT, FOR AN EXTENSION UNDER SEC. 74 OF
THE BANKRUPTCY ACT AS AMENDED.  FN1  THE PETITION, FILED MAY 23, 1935,
WAS REFERRED TO A REFEREE, WHO DENIED IT JULY 26, 1935.  MAY 15, 1936,
THE COURT, ON PETITION FOR REVIEW, RE-REFERRED THE CAUSE TO A REFEREE,
WHO, ON AUGUST 19, 1936, FILED HIS CERTIFICATE WITH THE COURT IN WHICH
HE CONCLUDED:  "I THEREFORE RECOMMEND THAT THE PROPOSAL OR PROPOSALS OF
THE DEBTOR FOR AN EXTENSION UNDER SEC. 74 OF THE BANKRUPTCY ACT BE NOT
CONFIRMED, AND THAT THE DEBTOR BE ADJUDICATED A BANKRUPT." 

AUGUST 21, 1936, THE DISTRICT COURT, RECITING THE REFEREE'S
RECOMMENDATION, MADE AN ORDER ADJUDICATING THE DEBTOR A BANKRUPT AND
AGAIN REFERRING THE CAUSE TO THE REFEREE FOR FURTHER PROCEEDINGS IN
BANKRUPTCY. 

AUGUST 28, 1936, THE DEBTOR PRAYED A REVIEW AND THE REFEREE CERTIFIED
THE MATTER TO THE COURT.  IN THE PETITION FOR REVIEW BOTH THE ACTION OF
THE REFEREE IN REPORTING HIS RECOMMENDATIONS INSTEAD OF GRANTING OR
DISMISSING THE PETITION FOR EXTENSION, AND THE ACTION OF THE COURT ON
THE REFEREE'S REPORT ADJUDICATING THE DEBTOR A BANKRUPT, WERE
CHALLENGED.  SEPTEMBER 10, 1936, THE DEBTOR FILED A PETITION FOR
REHEARING OF THE ORDER OF ADJUDICATION, PRAYING THAT IT BE VACATED AND
THE CAUSE REHEARD.  OCTOBER 14, 1936, MOTION WAS FILED BY THE DEBTOR,
AFTER DUE NOTICE TO THE PARTIES IN INTEREST, PRAYING THAT THE ORDER OF
ADJUDICATION BE VACATED AND THE PROCEEDING DISMISSED WITHOUT
PREJUDICE. 

OCTOBER 16, 1936, A DISTRICT JUDGE HEARD THE MOTION FOR REHEARING AND
THE MOTION TO VACATE THE ADJUDICATION AND ENTERED AN ORDER THAT THE
ENTIRE MATTER OF THE DEBTOR'S PETITION FOR EXTENSION WHICH WAS RE
REFERRED TO THE REFEREE MAY 15, 1936, BE AGAIN RE-REFERRED TO HIM WITH
DIRECTION TO HEAR AND CONSIDER THE PETITION FOR EXTENSION AND ANY
SUPPLEMENTAL PETITION, AND TO MAKE AN ORDER OR ORDERS THEREON AS
PROVIDED BY THE ACT AND THE GENERAL ORDERS, AND CONTINUING:  "IT IS
FURTHER ORDERED THAT ALL PROCEEDINGS HEREIN, OTHER THAN THOSE
HEREINABOVE ORDERED, AND PARTICULARLY ANY FURTHER PROCEEDINGS UNDER THE
ADJUDICATION AND ORDER OF REFERENCE UNDER SECTION 74 ENTERED ON AUGUST
21ST, 1936, BE STAYED UNTIL THE FURTHER ORDER OF THIS COURT MADE BY A
JUDGE THEREOF."  IT WILL BE OBSERVED THAT THE COURT DID NOT FINALLY
DISPOSE OF THE PETITION AND MOTION SO FAR AS THEY WERE DIRECTED TO THE
ADJUDICATION OF THE DEBTOR. 

PROCEEDINGS ON A SUPPLEMENTAL PROPOSAL OF EXTENSION WERE HAD BEFORE
THE REFEREE FROM TIME TO TIME AND EVENTUATED, ON JUNE 14, 1937, IN AN
ORDER DENYING THE PETITION FOR EXTENSION.  THE DEBTOR PRESENTED A
PETITION FOR REVIEW TO THE REFEREE JULY 15, 1937, AND THEREUPON THE
LATTER MADE AND FORWARDED TO THE COURT HIS CERTIFICATE RECITING THE
PROCEEDINGS AND CERTIFYING THE EVIDENCE.  THE MATTER CAME ON FOR
HEARING BEFORE THE DISTRICT COURT AND, ON OCTOBER 25, 1937, A JUDGE OF
THAT COURT CONFIRMED THE ORDER OF THE REFEREE AND ORDERED THAT THE STAY
OF PROCEEDINGS UNDER THE ORDER OF ADJUDICATION OF AUGUST 21, 1936,
SHOULD BE VACATED AND THAT THE REFEREE SHOULD PROCEED TO PERFORM HIS
DUTIES UNDER THE ADJUDICATION AND ORDER OF REFERENCE. 

NOVEMBER 15, 1937, THE DEBTOR FILED A PETITION FOR REHEARING IN WHICH
HE ASKED, INTER ALIA, THAT THE ADJUDICATION IN BANKRUPTCY BE VACATED
AND SET ASIDE.  ON THE SAME DAY A JUDGE OF THE DISTRICT COURT ENDORSED
UPON THE PETITION: 

"THIS PETITION HAVING BEEN 'SEASONALLY PRESENTED' AND 'ENTERTAINED'
BY THE ABOVE ENTITLED COURT, PERMISSION TO FILE SAME IS HEREBY
GRANTED." 

THE PETITION FOR REHEARING WAS HEARD BY A JUDGE OF THE DISTRICT COURT
AND, ON FEBRUARY 17, 1938, HE RENDERED HIS OPINION AND MADE AN ORDER
THEREON.  24 F.SUPP.  381.  IN THE OPINION HE SAID: 

"THIS MATTER IS BEFORE THE COURT (A) ON A PETITION TO REVIEW AN ORDER
OF THIS COURT DENYING REVIEW OF AN ORDER TO SET ASIDE ADJUDICATION; (B)
ON A PETITION TO REVIEW AN ORDER OF THE REFEREE CALLING A MEETING OF
CREDITORS FOR ELECTING, AND ELECTING A TRUSTEE, IN THE ABOVE ENTITLED
ESTATE." 

HIS ORDER WAS:  "THE PETITION FOR REVIEW IS DENIED." 

MARCH 18, 1938, AN APPEAL TO THE CIRCUIT COURT OF APPEALS WAS ALLOWED
BY THE DISTRICT COURT.  IN HIS PETITION FOR APPEAL THE DEBTOR STATED
THAT HE "DOES HEREBY APPEAL  ...  FROM SUCH ORDER OR ORDERS, JUDGMENT
OR JUDGMENTS, AND PARTICULARLY FROM THE ORDER OF ADJUDICATION, MADE AND
ENTERED AUGUST 21, 1936, ...  "  HIS FIRST ASSIGNMENT OF ERROR WAS TO
THE ORDER OF ADJUDICATION. 

THE COURT BELOW DISMISSED THE APPEAL  FN2  IN THE VIEW THAT, WHILE IT
WAS TAKEN WITHIN THIRTY DAYS OF THE ORDER DENYING THE PETITION FOR
REHEARING, IT CAME TOO LATE BECAUSE THE ADJUDICATION WAS ENTERED AUGUST
21, 1936, AND THE TIME FOR APPEAL THEREFROM EXPIRED THIRTY DAYS
THEREAFTER UNLESS THE RUNNING OF TIME FOR TAKING APPEAL WAS SUSPENDED
BY APPLICATION FOR REHEARING.  THE COURT CONSTRUED THE PETITION FOR
REHEARING OF SEPTEMBER 10, 1936, AS DIRECTED RATHER TO THE ACTION OF
THE REFEREE THAN TO THE ORDER OF ADJUDICATION, BUT THAT PETITION, AS WE
HAVE SEEN, RECITED THE ADJUDICATION, ALLEGED THAT IT WAS ERRONEOUS, AND
PRAYED THAT IT BE VACATED.  THIS POSITION WAS REITERATED IN THE MOTION
OF OCTOBER 14, 1936, AND BOTH THE PETITION AND THE MOTION WERE HEARD
TOGETHER AND WERE THE BASIS OF THE ORDER OF OCTOBER 16, 1936, RE
REFERRING THE CASE AND STAYING THE EFFECTIVE DATE OF THE ADJUDICATION
UNTIL THE FURTHER ORDER OF THE COURT. 

AS APPEARS FROM THE ORDER OF OCTOBER 25, 1937, THE DISTRICT JUDGE
UNDERSTOOD THAT THE QUESTION OF THE PROPRIETY OF THE ADJUDICATION WAS
BEFORE HIM AND DEALT WITH IT IN HIS DENIAL OF THE PETITION.  TREATING
THE PETITION OF SEPTEMBER 10, 1936, AND THE MOTION OF OCTOBER 14, 1936,
AS PETITIONS FOR REHEARING OF THE ORDER OF ADJUDICATION, AND THE
PETITION OF NOVEMBER 15, 1937, AS A SECOND PETITION FOR REHEARING FILED
OUT OF TIME, THE ENDORSEMENT UPON THE LATTER BY A JUDGE OF THE COURT,
AND THE HEARING HELD AND OPINION ANNOUNCED UPON IT, SHOW THAT IT WAS
ENTERTAINED BY THE COURT AND DEALT WITH UPON ITS MERITS.  UNTIL THE
ORDER OF FEBRUARY 17, 1938, NO FINAL DECISION WAS RENDERED SUSTAINING
THE ADJUDICATION AS AGAINST THE DEBTOR'S ATTACK. 

THESE CIRCUMSTANCES ENLARGED THE TIME FOR TAKING APPEAL FROM THE
ORDER OF ADJUDICATION.  THE FILING OF AN UNTIMELY PETITION FOR
REHEARING WHICH IS NOT ENTERTAINED OR CONSIDERED ON ITS MERITS, OR A
MOTION FOR LEAVE TO FILE SUCH A PETITION OUT OF TIME, IF NOT ACTED ON
OR IF DENIED BY THE TRIAL COURT, CANNOT OPERATE TO EXTEND THE TIME FOR
APPEAL.  FN3  BUT WHERE THE COURT ALLOWS THE FILING AND, AFTER
CONSIDERING THE MERITS, DENIES THE PETITION, THE JUDGMENT OF THE COURT
AS ORIGINALLY ENTERED DOES NOT BECOME FINAL UNTIL SUCH DENIAL, AND THE
TIME FOR APPEAL RUNS FROM THE DATE THEREOF.  FN4 

WE HOLD THAT THE COURT BELOW SHOULD HAVE ENTERTAINED THE APPEAL. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT
COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS
OPINION.  REVERSED. 

FN1  ACT OF MARCH 3, 1933, C. 204, SEC. 1, 47 STAT. 1467; ACT OF JUNE
7, 1934, C. 424, SEC. 2, 48 STAT. 922, 923; 11 U.S.C. (1934) SEC. 202. 

FN2  IN RE BOWMAN, 110 F.2D 348. 

FN3  MORSE V. UNITED STATES, 270 U.S. 151, 153, 154; WAYNE UNITED GAS
CO. V. OWENS-ILLINOIS GLASS CO., 300 U.S. 131, 137. 

FN4  VOORHEES V. JOHN T. NOYE MFG. CO., 151 U.S. 135, 137; GYPSY OIL
CO. V. ESCOE, 275 U.S. 498, 499; WAYNE UNITED GAS CO. V. OWENS-ILLINOIS
GLASS CO., SUPRA, 137, 138. 
..END :

















HELVERING V. OREGON INS. CO., 311 U.S. 267 


NO. 564.  ARGUED NOVEMBER 19, 1940.  - DECIDED DECEMBER 9, 1940.  - 112
F.2D 468, AFFIRMED. 


1.  SECTION 203(A)(2) OF THE REVENUE ACTS OF 1932 AND 1934, WHICH
PERMITS A LIFE INSURANCE COMPANY - DEFINED BY THE ACTS AS "AN INSURANCE
COMPANY ENGAGED IN THE BUSINESS OF ISSUING LIFE INSURANCE AND ANNUITY
CONTRACTS (INCLUDING CONTRACTS OF COMBINED LIFE, HEALTH, AND ACCIDENT
INSURANCE)" - IN COMPUTING INCOME TAX TO DEDUCT FROM GROSS INCOME AN
AMOUNT EQUAL TO A PRESCRIBED PERCENTAGE OF ITS "RESERVE FUNDS REQUIRED
BY LAW," AUTHORIZES SUCH DEDUCTION IN RESPECT OF RESERVES (REQUIRED BY
LAW) BASED UPON DISABILITY PROVISIONS OF POLICIES OF COMBINED LIFE AND
DISABILITY INSURANCE.  P. 270. 

2.  THE DEDUCTION MAY BE TAKEN IN RESPECT OF SUCH RESERVES WHETHER
THE POLICYHOLDERS HAVE THEN INCURRED DISABILITY OR NOT.  P. 271. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. OREGON MUTUAL LIFE
INSURANCE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 640, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS WHICH REVERSED A DETERMINATION OF A DEFICIENCY
IN INCOME TAX. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN COMPUTING ITS NET TAXABLE INCOME FOR 1933 AND 1934, RESPONDENT
TOOK A DEDUCTION OF 3 3/4% OF THE RESERVES IT HAD SET ASIDE WITH
RESPECT TO ITS COMBINED POLICIES OF LIFE, HEALTH, AND ACCIDENT
INSURANCE.  SECTION 203(A)(2) OF THE 1932 AND 1934 REVENUE ACTS PERMITS
A LIFE INSURANCE COMPANY TO DEDUCT FROM ITS GROSS INCOME "AN AMOUNT
EQUAL TO (3 3/4%) OF THE MEAN OF THE RESERVE FUNDS REQUIRED BY LAW
..."  FN1  THAT RESPONDENT WAS A LIFE INSURANCE COMPANY AS DEFINED BY
THE REVENUE ACTS AND THAT IT WAS REQUIRED BY LAW TO MAINTAIN RESERVES
TO PROTECT BOTH DEATH AND DISABILITY BENEFITS WERE CONCEDED.  THE
COMMISSIONER ALLOWED A DEDUCTION FOR DEATH RESERVES, BUT DISALLOWED AS
TO DISABILITY RESERVES, ON THE HYPOTHESIS THAT THE WORDS "RESERVE FUNDS
REQUIRED BY LAW" SHOULD BE CONSTRUED TO APPLY ONLY TO RESERVES FOR
DEATH LOSSES - THEREBY EXCLUDING DISABILITY RESERVES.  THE BOARD OF TAX
APPEALS HELD THE DEDUCTIONS ALLOWABLE IN BOTH RESPECTS AND REVERSED THE
COMMISSIONER.  FN2  THE COURT OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMED; FN3  CERTIORARI WAS GRANTED BECAUSE THE COURT OF CLAIMS HAD
REACHED AN OPPOSITE RESULT ON THE SAME QUESTION.  FN4 

LEGISLATIVE HISTORY DISCLOSES THAT A DEDUCTION SIMILAR TO THAT
ALLOWED BY SEC. 203(A)(2) FIRST APPEARED IN THE REVENUE ACT OF 1921,
FN5  AND HAS REAPPEARED IN EVERY REVENUE MEASURE SINCE, INCLUDING THAT
OF 1939.  FN6  PRIOR TO 1921, INSURANCE COMPANIES HAD NOT BEEN ALLOWED
SUCH A DEDUCTION, BUT HAD BEEN SUBJECT TO THE SAME TAX PLAN AS
CORPORATIONS GENERALLY; THE 1921 ACT, HOWEVER, WHOLLY EXEMPTED
INSURANCE COMPANIES FROM THE GENERAL SCHEME OF CORPORATE TAXATION AND
SET UP SPECIAL SYSTEMS APPLICABLE TO THEM ALONE.  FN7  THE NEW PLAN, AS
IT RELATED TO LIFE INSURANCE COMPANIES, HAD AS A MAJOR OBJECTIVE THE
ELIMINATION OF PREMIUM RECEIPTS FROM THE FIELD OF TAXABLE INCOME.  IT
HAD LONG BEEN POINTED OUT TO CONGRESS THAT THESE RECEIPTS, EXCEPT AS TO
A VERY MINOR PROPORTION OF EACH PREMIUM, WERE NOT TRUE INCOME BUT WERE
ANALOGOUS TO PERMANENT CAPITAL INVESTMENT.  FN8  IN ALL THE REVENUE
ACTS FROM 1921 THROUGH 1939, THE GROSS INCOME OF LIFE INSURANCE
COMPANIES NO LONGER INCLUDED PREMIUM RECEIPTS, BUT WAS LIMITED TO
INCOME "FROM INTEREST, DIVIDENDS, AND RENTS."  FN9  AND, PURSUANT TO
THE CONCEIVED ANALOGY OF RESERVES TO CAPITAL INVESTMENT, NET INCOME WAS
TO BE DETERMINED BY PERMITTING, AMONG OTHER DEDUCTIONS FROM GROSS
INCOME, THAT SAME DEDUCTION HERE IN DISPUTE - A PERCENTAGE OF THE
"RESERVE FUNDS REQUIRED BY LAW." 

AS ENTIRELY NEW AND SEPARATE TAX PROVISIONS RELATING ONLY TO LIFE
INSURANCE COMPANIES WERE THUS ENACTED, IT BECAME NECESSARY SPECIFICALLY
TO DEFINE WHAT CONSTITUTED A "LIFE INSURANCE COMPANY" WITHIN THE
MEANING OF THE ACT.  THEREFORE, IT WAS DECLARED IN THE 1921 ACT AND ALL
ITS SUCCESSORS THAT "WHEN USED IN THIS TITLE THE TERM 'LIFE INSURANCE
COMPANY' MEANS AN INSURANCE COMPANY ENGAGED IN THE BUSINESS OF ISSUING
LIFE INSURANCE AND ANNUITY CONTRACTS (INCLUDING CONTRACTS OF COMBINED
LIFE, HEALTH, AND ACCIDENT INSURANCE), THE RESERVE FUNDS OF WHICH HELD
FOR THE FULFILLMENT OF SUCH CONTRACTS COMPRISE MORE THAN 50 PER CENTUM
OF ITS TOTAL RESERVE FUNDS."  FN10 

UNDER THE CONGRESSIONAL PLAN, THERE IS GRANTED A DEDUCTION BASED ON
THOSE "RESERVE FUNDS REQUIRED BY LAW."  SECTION 203(A)(2) GRANTS THIS
DEDUCTION; SEC. 201 DEFINES LIFE INSURANCE COMPANIES.  IT SEEMS CLEAR
THAT CONGRESS INTENDED TO PERMIT THE DEDUCTION OF RESERVES BASED ON
THOSE POLICIES THAT MAKE A COMPANY A "LIFE INSURANCE COMPANY" UNDER THE
ACT, WHICH, BY DEFINITION, INCLUDES POLICIES OF "COMBINED LIFE, HEALTH,
AND ACCIDENT INSURANCE."  THE RESERVES HERE RELATED TO THE DISABILITY
PROVISIONS OF SUCH COMBINED POLICIES.  THE SAME UNDERLYING
CONSIDERATIONS THAT PROMPTED THE DEDUCTION FOR DEATH RESERVES ARE
APPLICABLE TO THE RESERVES FOR DISABILITY IN THESE COMBINED POLICIES. 
AND DISABILITY AS WELL AS DEATH RESERVES FALL LITERALLY WITHIN THE
LANGUAGE OF THE DEDUCTION PROVISION.  IT IS NOT DISPUTED THAT
ADMINISTRATIVE REGULATIONS PROMULGATED UNDER EVERY REVENUE ACT FROM
1921 THROUGH 1932 RECOGNIZED THE RIGHT OF LIFE INSURANCE COMPANIES TO
TAKE DEDUCTIONS BOTH FOR DEATH AND FOR DISABILITY RESERVES ON POLICIES
SUCH AS THOSE HERE INVOLVED.  FN11  NOR IS IT DENIED THAT THE 1934
REENACTMENT OF SEC. 203(A)(2) FOLLOWED THIRTEEN YEARS OF ADMINISTRATIVE
REGULATION AND PRACTICE UNDER WHICH SUBSTANTIALLY IDENTICAL PROVISIONS
HAD BEEN SO CONSTRUED AND APPLIED THAT LIFE INSURANCE COMPANIES COULD
AND DID OBTAIN THESE DEDUCTIONS.  DURING THAT ENTIRE PERIOD, THE
TREASURY FOUND NO AMBIGUITY IN SEC. 203(A)(2), AND EXPRESSED NO DOUBT
AS TO A LIFE INSURANCE COMPANY'S RIGHT TO MAKE SUCH DEDUCTIONS.  BUT ON
FEBRUARY 11, 1935, REGULATIONS WERE PROMULGATED ASSERTING DISABILITY
RESERVES TO BE NON-DEDUCTIBLE UNDER THE 1934 ACT; FN12  AND ON DECEMBER
18, 1935, A TREASURY DECISION DECLARED THAT THIS REGULATION APPLIED
RETROACTIVELY TO THE 1932 AND EARLIER ACTS.  FN13  PETITIONER NOW SAYS
THAT THE FORMER PRACTICE IN PERMITTING DISABILITY RESERVE DEDUCTIONS
WAS ERRONEOUS,  FN14  AND THAT THE NEW REGULATION SHOULD BE GIVEN FULL
RETROACTIVE EFFECT. 

IT IS THE GOVERNMENT'S CONTENTION THAT THE CHANGE IN THE REGULATIONS
WAS PARTICULARLY APPROPRIATE BECAUSE INDUCED BY JUDICIAL DECISION. 
FN15  AND IT IS TRUE THAT THIS COURT HAS HELD THAT RESERVES SET ASIDE
BY LIFE INSURANCE COMPANIES TO PROTECT PAYMENT OF POLICY INVESTMENT
PURCHASES CANNOT BE USED AS THE BASIS FOR DEDUCTIONS.  FN16  BUT THOSE
DECISIONS RESTED UPON THE CONCLUSION THAT THE INVESTMENT FUND FEATURES
HAD NO RELATION TO THE INSURANCE RISKS.  HERE, IN THE COMBINED LIFE AND
HEALTH AND ACCIDENT POLICIES, THE HEALTH AND ACCIDENT RESERVES ARE
BASED UPON CONTINGENCIES OF THE COMMENCEMENT AND CONTINUANCE OF
DISABILITY.  THEY HAVE A DIRECT AND INSEPARABLE RELATIONSHIP TO THE
VERY INSURANCE CONTRACTS WHICH BRING RESPONDENT UNDER A SPECIAL TAX
SCHEME.  FN17  NOR IS THERE A DISTINCTION, AS PETITIONER URGES, BETWEEN
THAT PART OF THE RESERVE SET ASIDE TO PROTECT POLICY HOLDERS NOT YET
DISABLED AND THAT PART SET ASIDE TO PROTECT THOSE ALREADY DISABLED. 
THE LIABILITY TO THOSE WHO HAVE INCURRED DISABILITY IS NOT A FIXED SUM,
BUT REMAINS A CONTINGENCY, STILL UNCERTAIN IN DURATION AND AMOUNT. 
RESERVES HELD FOR SUCH A CONTINGENT LIABILITY ARE TRUE RESERVES IN THE
INSURANCE SENSE. 

WE FIND IT UNNECESSARY TO DISCUSS THE EXTENT TO WHICH SUCH A
REGULATION MIGHT, UNDER DIFFERENT CIRCUMSTANCES, BE GIVEN RETROACTIVE
EFFECT BY VIRTUE OF THE STATUTORY POWER OF THE COMMISSIONER.  FN18  NOR
DO WE FIND IT NECESSARY TO DISCUSS THE ARGUMENT THAT THE POLICY BEHIND
THE SPECIAL TREATMENT AFFORDED LIFE INSURANCE COMPANIES DOES NOT
WARRANT ALLOWING THIS DEDUCTION.  FOR IT IS OUR CONCLUSION THAT BY SEC.
203(A)(2) OF THE 1932 AND 1934 ACTS, CONGRESS HAS GRANTED LIFE
INSURANCE COMPANIES A DEDUCTION FOR DISABILITY RESERVES WHICH ONLY
CONGRESS CAN TAKE AWAY.  FN19 AFFIRMED. 

FN1  47 STAT. 224; 48 STAT. 732. 

FN2  THE OPINION IS NOT OFFICIALLY REPORTED; THE BOARD RELIED ON ITS
EARLIER DECISIONS IN EQUITABLE LIFE ASSURANCE SOCIETY V. COMMISSIONER,
33 B.T.A. 708; MONARCH LIFE INS. CO. V. COMMISSIONER, 38 B.T.A. 716;
AND PAN-AMERICAN LIFE INS. CO. V. COMMISSIONER, 38 B.T.A. 1430. 

FN3  112 F.2D 468.  OTHER CIRCUITS REACHED A LIKE RESULT:
COMMISSIONER V. PAN-AMERICAN LIFE INS. CO., 111 F.2D 366(C.C.A. 5);
COMMISSIONER V. MONARCH LIFE INS. CO., 114 F.2D 314(C.C.A. 1). 

FN4  NEW WORLD LIFE INS. CO. V. UNITED STATES, 26 F.SUPP.  444. 

FN5  42 STAT. 261, SEC. 245(A)(2). 

FN6  53 STAT. 72. 

FN7  THE HISTORY OF THIS LEGISLATION IS SET OUT IN NATIONAL LIFE INS.
CO. V. UNITED STATES, 277 U.S. 508, 523-524. 

FN8  SEE, E.G., S. REP. NO. 617, PART 1, PAGE 9, 65TH CONG., 3D
SESS. 

FN9  E.G., SEC. 244(A), ACT OF 1921, 42 STAT. 261; SEC. 202(A), ACT
OF 1939, 53 STAT. 71. 

FN10  E.G., SEC. 242, ACT OF 1921, 42 STAT. 261; SEC. 201, ACT OF
1939, 53 STAT. 71.  THE GOVERNMENT CONTENDS THAT THE DETERMINATIVE
RATIO UNDER THIS SECTION IS DEATH RESERVES TO TOTAL RESERVES; THE
INSURANCE COMPANIES CONTEND THAT THE RATIO IS ALL RESERVES ON THE
ENUMERATED TYPES OF POLICIES TO TOTAL RESERVES.  SINCE OREGON MUTUAL IS
ADMITTEDLY A "LIFE INSURANCE COMPANY" REGARDLESS OF WHICH OF THESE
CONTENTIONS IS CORRECT, THIS QUESTION IS NOT BEFORE US. 

FN11  ARTICLE 681 OF REGULATIONS 62, 65, 69, AND ARTICLE 971 OF
REGULATIONS 74 AND 77. 

FN12  ARTICLE 203(A)(2) OF REGULATION 86. 

FN13  T.D. 4615, XIV-2 CUM. BULL.  310. 

FN14  IN SUPPORT OF THE COMMISSIONER'S RIGHT TO CHANGE THE
REGULATIONS UNDER THIS SUPPOSED STATE OF FACTS, THE GOVERNMENT CITES
MANHATTAN GENERAL EQUIPMENT CO. V. COMMISSIONER, 297 U.S. 129, 134-135,
AND MURPHY OIL CO. V. BURNET, 287 U.S. 299. 

FN15  CF. MORRISSEY V. COMMISSIONER, 296 U.S. 344, 355.  THE JUDICIAL
DECISIONS RELIED ON ARE THOSE CITED IN THE FOLLOWING FOOTNOTE. 

FN16  HELVERING V. INTER-MOUNTAIN LIFE INS. CO., 294 U.S. 686;
HELVERING V. ILLINOIS LIFE INS. CO., 299 U.S. 88. 

FN17  CF. RHINE V. NEW YORK LIFE INS. CO., 273 N.Y. 1; 6 N.E.2D 74;
RUBIN V. METROPOLITAN LIFE INS. CO., 278 N.Y. 625; 16 N.E.2D 293. 

FN18  FOR THE COMMISSIONER'S POWER TO PROMULGATE RETROACTIVE
REGULATIONS, PETITIONER RELIES ON SEC. 506 OF THE REVENUE ACT OF 1934,
WHICH AMENDED SEC. 1108(A) OF THE 1926 ACT. 

FN19  BIDDLE V. COMMISSIONER, 302 U.S. 573, 582; KOSHLAND V.
HELVERING, 298 U.S. 441, 446-447. 
..END :






HELVERING V. PAN-AMERICAN INS. CO., 311 U.S. 272 


NO. 264.  ARGUED NOVEMBER 19, 1940.  - DECIDED DECEMBER 9, 1940.  - 111
F.2D 366, AFFIRMED. 


DECIDED ON THE AUTHORITY OF HELVERING V. OREGON MUTUAL LIFE INS CO.,
ANTE, P. 267. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. PAN-AMERICAN LIFE
INSURANCE C.O. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 637, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 38 B.T.A. 1430. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES RESPONDENT'S INCOME TAX FOR THE TAX YEAR 1933.  IT
IS IN ALL RESPECTS GOVERNED BY OUR DECISION IN HELVERING V. OREGON
MUTUAL LIFE INS. CO., ANTE, P. 267, AND ON THE AUTHORITY OF THAT CASE
THE DECISION BELOW IS AFFIRMED. 
..END :







WRIGHT V. UNION CENTRAL INS. CO., 311 U.S. 273 


NO. 51.  ARGUED NOVEMBER 20, 22, 1940.  - DECIDED DECEMBER 9, 1940.  -
108 F.2D 361, MODIFIED. 


1.  UNDER SEC. 75(S)(3) OF THE BANKRUPTCY ACT, THE DEBTOR, UPON HIS
REQUEST, MUST BE AFFORDED AN OPPORTUNITY TO REDEEM THE PROPERTY AT ITS
CURRENT VALUE (AS REAPPRAISED, OR AS FIXED BY THE COURT AFTER HEARING,
PURSUANT TO PROVISIONS OF THE SECTION), BEFORE THE PROPERTY MAY BE
ORDERED SOLD AT PUBLIC SALE.  P. 277. 

2.  THE DEBTOR'S RIGHT, UPON REQUEST, TO REDEEM PURSUANT TO THE
PROCEDURE PRESCRIBED IN THE FIRST PROVISO OF SEC. 75(S)(3) CAN NOT BE
DEFEATED BY THE REQUEST OF A SECURED CREDITOR FOR A PUBLIC SALE UNDER
THE SECOND PROVISO.  P. 279. 

3.  THE POWER OF THE BANKRUPTCY COURT UNDER SEC. 75(S)(3) TO APPOINT
A TRUSTEE AND ORDER A SALE OR OTHER DISPOSITION OF THE PROPERTY IF THE
DEBTOR "AT ANY TIME FAILS TO COMPLY WITH THE PROVISIONS OF THIS
OR IS UNABLE TO REFINANCE HIMSELF WITHIN THREE YEARS," MAY NOT BE
EXERCISED SO AS TO DEPRIVE THE DEBTOR OF HIS RIGHT TO REDEEM AT THE
REAPPRAISED VALUE OR AT THE VALUE FIXED BY THE COURT.  P. 280. 

4.  PROVISIONS OF THE BANKRUPTCY ACT FOR THE RELIEF OF FARMER-DEBTORS
MUST BE LIBERALLY CONSTRUED TO GIVE THE DEBTOR THE FULL MEASURE OF THE
RELIEF AFFORDED BY CONGRESS.  P. 279. 

5.  PURSUANT TO SEC. 75(S) OF THE BANKRUPTCY ACT, A FARMER-DEBTOR HAD
BEEN ADJUDGED BANKRUPT AND PROCEEDINGS AGAINST HIM HAD BEEN STAYED. 
SUBSEQUENTLY, A MORTGAGE CREDITOR PETITIONED THE BANKRUPTCY COURT FOR
AN IMMEDIATE SALE OF THE PROPERTY, ALLEGING, INTER ALIA, THAT THE
DEBTOR'S FINANCIAL CONDITION WAS BEYOND HOPE OF REHABILITATION AND THAT
HE HAD FAILED TO COMPLY WITH PROVISIONS OF SEC. 75(S)(3) AND ORDERS OF
THE COURT PURSUANT THERETO.  THE DEBTOR ANSWERED AND FILED A CROSS
PETITION UNDER SEC. 75(S)(3) REQUESTING A REAPPRAISAL OF THE PROPERTY
OR THAT ITS VALUE BE FIXED BY THE COURT AFTER HEARING, AND THAT HE BE
ALLOWED TO REDEEM AT THE VALUE SO DETERMINED AND FREE FROM ANY
LIABILITY ON ACCOUNT OF ANY DEFICIENCY.  UPON HEARING, THE COURT FOUND
THE VALUE OF THE PROPERTY BUT ORDERED ITS SALE WITHOUT AFFORDING THE
DEBTOR AN OPPORTUNITY TO REDEEM AT THAT VALUE.  HELD: 

(1)  THAT THE DEBTOR'S CROSS-PETITION SHOULD HAVE BEEN GRANTED; THAT
HE WAS ENTITLED TO HAVE THE PROPERTY REAPPRAISED OR THE VALUE FIXED AT
A HEARING; THAT THE VALUE HAVING BEEN THUS DETERMINED, HE WAS THEN
ENTITLED TO HAVE A REASONABLE TIME, FIXED BY THE COURT, IN WHICH TO
REDEEM AT THAT VALUE; AND THAT IF HE DID SO REDEEM, THE LAND SHOULD BE
TURNED OVER TO HIM FREE AND CLEAR OF ENCUMBRANCES AND HIS DISCHARGE
GRANTED.  P. 281. 

ONLY IN CASE THE DEBTOR FAILED TO REDEEM WITHIN A REASONABLE TIME
WOULD THE COURT BE AUTHORIZED TO ORDER A PUBLIC SALE. 

(2)  AS THUS MODIFIED, THE ORDER OF THE COURT SHOULD STAND, GRANTING
THE MORTGAGEE THE PRIVILEGE OF PURCHASING THE PROPERTY AT THE SALE AND
OF CREDITING THE INDEBTEDNESS OF THE DEBTOR AGAINST THE PURCHASE PRICE;
THE DEBTOR TO HAVE THE PRIVILEGE OF REDEMPTION WITHIN NINETY DAYS, UPON
PAYMENT OF THE SALES PRICE AND INTEREST THEREON, AS PROVIDED BY SEC.
75(S)(3) OF THE ACT.  P. 281. 

WRIGHT V. UNION CENTRAL LIFE INSURANCE CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 310 U.S. 618, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
BANKRUPTCY COURT DIRECTING THAT THE PROPERTY OF A DEBTOR BE SOLD. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE SAME DEBTOR AND THE SAME 200 ACRE TRACT OF
LAND AS WERE INVOLVED IN WRIGHT V. UNION CENTRAL LIFE INS. CO., 304
U.S. 502.  AS REVEALED IN THAT CASE, THE DEBTOR IS A FARMER WHO FILED A
PETITION UNDER SEC. 75 OF THE BANKRUPTCY ACT AND LATER AMENDED IT UNDER
SEC. 75(S), ASKING TO BE ADJUDGED A BANKRUPT.  FN1  THIS COURT HELD
THAT THE 200 ACRE TRACT WAS SUBJECT TO THE JURISDICTION OF THE
BANKRUPTCY COURT AND THAT SEC. 75(N) EXTENDING THE PERIOD OF REDEMPTION
WAS CONSTITUTIONAL.  THE PRESENT RECORD DOES NOT DISCLOSE ALL THAT HAS
TRANSPIRED IN THIS PROCEEDING.  FOR EXAMPLE, IT DOES NOT APPEAR WHETHER
THE DEBTOR ASKED FOR AN APPRAISAL UNDER SEC. 75(S) WHICH IT IS THE DUTY
OF THE COURT TO MAKE ON SUCH REQUEST AND IN WHICH EVENT THE THREE-YEAR
STAY PROVIDED FOR IN SEC. 75(S)(2) MAY START TO RUN ONLY AFTER SUCH
APPRAISAL HAS BEEN MADE.  JOHN HANCOCK MUTUAL LIFE INS. CO. V. BARTELS,
308 U.S. 180; BORCHARD V. CALIFORNIA BANK, 310 U.S. 311.  BUT SUCH
PROBLEM IS NOT SHARPLY PRESENTED BY THE RECORD BEFORE US.  THE NARROW
ISSUE PRESENTED BY THIS PETITION FOR CERTIORARI AND WHICH MOVED US TO
GRANT IT IS WHETHER UNDER SEC. 75(S)(3) THE DEBTOR MUST BE ACCORDED AN
OPPORTUNITY, ON HIS REQUEST, TO REDEEM THE PROPERTY AT THE REAPPRAISED
VALUE OR AT A VALUE FIXED BY THE COURT BEFORE THE COURT MAY ORDER A
PUBLIC SALE. 

ON JULY 22, 1938, RESPONDENT FILED A PETITION PRAYING THAT THE
PROCEEDING BE DISMISSED OR, IN THE ALTERNATIVE, THAT AN IMMEDIATE SALE
BE HAD, AND ALLEGING, INTER ALIA, THAT THE DEBTOR'S FINANCIAL CONDITION
WAS BEYOND ALL REASONABLE HOPE OF REHABILITATION, THAT HE HAD FAILED TO
COMPLY WITH THE ORDER OF THE COURT REQUIRING TWO-FIFTHS OF THE CROPS TO
BE DELIVERED TO THE TRUSTEE, THAT HE HAD MADE NO OFFER OF COMPOSITION,
AND THAT HE HAD FAILED TO PAY TAXES AND INSURANCE AND HAD MADE NO
PAYMENT ON PRINCIPAL SINCE 1925 AND NONE ON INTEREST SINCE 1930.  THE
DEBTOR'S MOTION TO DISMISS THE PETITION WAS DENIED.  ON OCTOBER 5,
1938, THE DEBTOR FILED BOTH AN ANSWER TO THE PETITION, AND A CROSS
PETITION UNDER SEC. 75(S)(3) TO HAVE THE LAND APPRAISED OR A DATE SET
FOR HEARING AND AFTER HEARING EVIDENCE TO HAVE ITS VALUE FIXED, TO BE
ALLOWED TO REDEEM AT THAT VALUE, AND TO BE DISCHARGED FROM LIABILITY ON
ACCOUNT OF ANY DEFICIENCY.  RESPONDENT ANSWERED ALLEGING THAT THE
DEBTOR WAS NOT ENTITLED TO REDEEM AT SUCH VALUE AND THAT BY THE TERMS
OF SEC. 75(S)(3) ITS REQUEST FOR A SALE TOOK PRECEDENCE OVER ANY SUCH
RIGHT OF THE DEBTOR.  THE COURT HELD A HEARING AT WHICH EVIDENCE WAS
ADDUCED.  IT FOUND, INTER ALIA, THAT THE AMOUNT OWED BY THE DEBTOR TO
RESPONDENT WAS $15,903.68, THAT THE VALUE OF THE PROPERTY WAS $6,000,
THAT THERE WAS NO EVIDENCE UPON WHICH MIGHT BE BASED A REASONABLE HOPE
OR EXPECTATION OF THE DEBTOR'S FINANCIAL REHABILITATION, THAT THERE WAS
NO EVIDENCE OF HIS ABILITY TO EFFECT A REFINANCING OF THE PROPERTY AT
THAT VALUE, AND THAT HE HAD FAILED AND REFUSED TO OBEY ORDERS OF THE
COURT.  ACCORDINGLY IT ORDERED THAT THE PROPERTY BE SOLD "AT PUBLIC
SALE TO THE HIGHEST BIDDER AND FOR CASH, WITHOUT ANY RELIEF WHATEVER
FROM VALUATION AND APPRAISEMENT LAWS"; THAT RESPONDENT BE ALLOWED TO
PURCHASE AT THE SALE AND TO "UTILIZE AND BE GIVEN CREDIT FOR ALL OR ANY
PART OF THE INDEBTEDNESS OF (THE) DEBTOR"; AND THAT THE DEBTOR BE
BARRED FROM ALL EQUITY OF REDEMPTION IN THE PROPERTY IF IT BE NOT
REDEEMED BY HIM "WITHIN THE TIME AND IN THE MANNER ALLOWED AND
PROVIDED" BY SEC. 75(S)(3).  FN2 ON APPEAL TO THE CIRCUIT COURT OF
APPEALS THAT ORDER WAS AFFIRMED, 108 F.2D 361, THE COURT STATING THAT
THE FACTS NOT ONLY AUTHORIZED THE ENTRY OF THE ORDER BUT MADE SUCH
ACTION IMPERATIVE.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF
THE PROBLEM TO THE ORDERLY ADMINISTRATION OF THE ACT. 

WE THINK THAT THE DENIAL OF AN OPPORTUNITY FOR THE DEBTOR TO REDEEM
AT THE VALUE FIXED BY THE COURT BEFORE ORDERING A PUBLIC SALE WAS
ERROR. 

THE PROVISION IN SEC. 75(S)(3) THAT AT THE END OF THREE YEARS, OR
PRIOR THERETO, THE DEBTOR MAY PAY INTO COURT THE AMOUNT OF THE
APPRAISAL OF THE PROPERTY, IS FOLLOWED BY TWO PROVISOS.  FN3  THE FIRST
STATES THAT "UPON REQUEST OF ANY SECURED OR UNSECURED CREDITOR, OR UPON
REQUEST OF THE DEBTOR, THE COURT SHALL CAUSE A REAPPRAISAL OF THE
DEBTOR'S PROPERTY, OR IN ITS DISCRETION SET A DATE FOR HEARING, AND
AFTER SUCH HEARING, FIX THE VALUE OF THE PROPERTY,  ...  AND THE DEBTOR
SHALL THEN PAY THE VALUE SO ARRIVED AT INTO COURT  ...  "  THE SECOND
PROVIDES THAT "UPON REQUEST IN WRITING BY ANY SECURED CREDITOR OR
CREDITORS, THE COURT SHALL ORDER THE PROPERTY UPON WHICH SUCH SECURED
CREDITORS HAVE A LIEN TO BE SOLD AT PUBLIC AUCTION." 

TRUE, THE GRANTING OF A REQUEST FOR A PUBLIC SALE IS MANDATORY.  BUT
SO IS THE GRANTING OF A REQUEST FOR A VALUATION AT WHICH THE DEBTOR MAY
REDEEM.  YET A RECONCILIATION OF THESE SEEMINGLY INCONSISTENT REMEDIES
IS NOT DIFFICULT IF THE PURPOSE AND FUNCTION OF THE ACT ARE NOT
OBSCURED.  THIS ACT PROVIDED A PROCEDURE TO EFFECTUATE A BROAD PROGRAM
OF REHABILITATION OF DISTRESSED FARMERS FACED WITH THE DISASTER OF
FORCED SALES AND AN OPPRESSIVE BURDEN OF DEBT.  WRIGHT V. UNION CENTRAL
LIFE INS. CO., SUPRA; JOHN HANCOCK MUTUAL LIFE INS. CO. V. BARTELS,
SUPRA; KALB V. FEUERSTEIN, 308 U.S. 433.  SAFEGUARDS WERE PROVIDED TO
PROTECT THE RIGHTS OF SECURED CREDITORS, THROUGHOUT THE PROCEEDINGS, TO
THE EXTENT OF THE VALUE OF THE PROPERTY.  JOHN HANCOCK MUTUAL LIFE INS.
CO. V. BARTELS, SUPRA, AT PP. 186-187; BORCHARD V. CALIFORNIA BANK,
SUPRA, AT P. 317.  THERE IS NO CONSTITUTIONAL CLAIM OF THE CREDITOR TO
MORE THAN THAT.  AND SO LONG AS THAT RIGHT IS PROTECTED THE CREDITOR
CERTAINLY IS IN NO POSITION TO INSIST THAT DOUBTS OR AMBIGUITIES IN THE
ACT BE RESOLVED IN ITS FAVOR AND AGAINST THE DEBTOR.  RATHER, THE ACT
MUST BE LIBERALLY CONSTRUED TO GIVE THE DEBTOR THE FULL MEASURE OF THE
RELIEF AFFORDED BY CONGRESS (JOHN HANCOCK MUTUAL LIFE INS. CO. V.
BARTELS, SUPRA; KALB V. FEUERSTEIN, SUPRA), LEST ITS BENEFITS BE
FRITTERED AWAY BY NARROW FORMALISTIC INTERPRETATIONS WHICH DISREGARD
THE SPIRIT AND THE LETTER OF THE ACT. 

EQUAL PROTECTION TO DEBTOR AND CREDITOR ALIKE CAN BE AFFORDED ONLY BY
HOLDING THAT THE DEBTOR'S REQUEST FOR REDEMPTION PURSUANT TO THE
PROCEDURE PRESCRIBED IN THE FIRST PROVISO OF SEC. 75(S)(3) CANNOT BE
DEFEATED BY A REQUEST OF A SECURED CREDITOR FOR A PUBLIC SALE UNDER THE
SECOND PROVISO.  CERTAINLY EQUAL PROTECTION OF DEBTOR AND CREDITOR
WOULD NOT BE OBTAINED IF THE CONTRARY VIEW WERE FOLLOWED.  THEN THE
DEBTOR'S RIGHTS UNDER THE FIRST PROVISO WOULD BE EITHER DEPENDENT ON
THE OUTCOME OF HIS RACE OF DILIGENCE WITH A CREDITOR, FOR WHICH
CUSTOMARILY HE WOULD BE POORLY EQUIPPED (CF. KALB V. FEUERSTEIN,
SUPRA); OR THEY WOULD BE DEFEASIBLE AT THE INSTANCE OF A CREDITOR. 
UNDER OUR CONSTRUCTION, HOWEVER, THE DEBTOR WILL BE GIVEN THE BENEFIT
OF AN EXPRESS MANDATE OF THE ACT.  AND THE CREDITOR WILL NOT BE
DEPRIVED OF THE ASSURANCE THAT THE VALUE OF THE PROPERTY WILL BE
DEVOTED TO THE PAYMENT OF ITS CLAIM.  FOR, AS INDICATED IN WRIGHT V.
VINTON BRANCH, 300 U.S. 440, 468, IF THE DEBTOR DID REDEEM PURSUANT TO
THAT PROCEDURE, HE WOULD NOT GET THE PROPERTY AT LESS THAN ITS ACTUAL
VALUE.  IN THAT CASE THIS COURT, IN SUSTAINING THE CONSTITUTIONALITY OF
SEC. 75(S), EMPHASIZED THAT THE ACT PRESERVED THE RIGHT OF THE
MORTGAGEE TO REALIZE UPON THE SECURITY BY A JUDICIAL SALE.  BY OUR
CONSTRUCTION THE EXERCISE OF THIS RIGHT IS MERELY DEFERRED OR POSTPONED
UNTIL THE OTHER CONDITIONS AND REQUIREMENTS OF THE ACT, PRESCRIBED FOR
THE PROTECTION OF THE DEBTOR, HAVE BEEN MET.  IT IS EVENTUALLY DENIED
THE CREDITOR ONLY IN CASE HE IS PAID THE FULL AMOUNT OF WHAT HE CAN
CONSTITUTIONALLY CLAIM. 

RESPONDENT, HOWEVER, PLACES GREAT RELIANCE ON THAT PART OF SEC.
75(S)(3) WHICH PROVIDES THAT IF THE DEBTOR "AT ANY TIME FAILS TO COMPLY
WITH THE PROVISIONS OF THIS SECTION, OR WITH ANY ORDERS OF THE COURT
MADE PURSUANT TO THIS SECTION, OR IS UNABLE TO REFINANCE HIMSELF WITHIN
THREE YEARS, THE COURT MAY ORDER THE APPOINTMENT OF A TRUSTEE, AND
ORDER THE PROPERTY SOLD OR OTHERWISE DISPOSED OF AS PROVIDED FOR IN
THIS ACT."  THIS PROVISION IS SOMEWHAT AMBIGUOUS.  AND NO SIGNIFICANT
LIGHT IS THROWN ON ITS MEANING BY THE COMMITTEE REPORTS.  FN4  TO BE
SURE IT WAS RELIED ON BY THIS COURT IN WRIGHT V. VINTON BRANCH, SUPRA,
PP. 460-462, FOR THE CONCLUSION THAT THE THREE-YEAR STAY PROVIDED FOR
IN SEC. 75(S)(2) IS NOT AN "ABSOLUTE ONE" BUT THAT "THE COURT MAY
TERMINATE THE STAY AND ORDER A SALE EARLIER."  (P. 461.)  BUT THERE IS
NOTHING IN THAT OPINION OR IN THE ACT WHICH SAYS THAT THAT POWER OF THE
COURT MAY BE UTILIZED SO AS TO WIPE OUT THE CLEAR AND EXPRESS RIGHT OF
THE DEBTOR UNDER SEC. 75(S)(3) TO REDEEM AT THE REAPPRAISED VALUE OR AT
THE VALUE FIXED BY THE COURT.  NOR CAN THE EXISTENCE OF THAT POWER BE
FAIRLY IMPLIED.  THE POWER OF THE COURT TO "ORDER THE PROPERTY SOLD OR
OTHERWISE DISPOSED OF AS PROVIDED FOR IN THIS ACT" CANNOT BE TAKEN TO
MEAN A DISCRETIONARY POWER TO TERMINATE THE PROCEEDINGS THROUGH THE
EXCLUSIVE DEVICE OF A PUBLIC SALE.  CONGRESS HAS PROVIDED THAT CERTAIN
CONTUMACIOUS CONDUCT ON THE PART OF THE DEBTOR OR HIS INABILITY TO
REFINANCE HIMSELF WITHIN THREE YEARS MAY BE AN APPROPRIATE BASIS FOR A
TERMINATION OF THE PROCEEDINGS OR FOR AN ACCELERATION THEREOF.  WE
CANNOT INFER, HOWEVER, THAT CONGRESS INTENDED THAT SUCH FACTS SHOULD
HAVE ANY FURTHER LEGAL SIGNIFICANCE UNDER THE ACT.  TO HOLD THAT THEY
EMPOWERED THE COURT TO DEPRIVE THE DEBTOR OF HIS EXPRESS AND
FUNDAMENTAL STATUTORY RIGHT TO REDEEM AT THE REAPPRAISED VALUE OR AT
THE VALUE FIXED BY THE COURT WOULD BE TO IMPLY A POWER OF FORFEITURE
WHOLLY INCOMPATIBLE WITH THE BROAD DESIGN OF THE ACT TO AID AND PROTECT
FARMER-DEBTORS WHO WERE VICTIMS OF THE GENERAL ECONOMIC DEPRESSION. 
WRIGHT V. VINTON BRANCH, SUPRA, P. 466.  SUCH AN IMPORTANT REMEDIAL
RIGHT CANNOT BE LOST BY MERE IMPLICATION.  AND TO HOLD THAT THE COURT
HAS THE DISCRETION TO DENY OR TO GRANT THE DEBTOR'S RIGHT TO REDEEM AT
THE REAPPRAISED VALUE OR AT THE VALUE FIXED BY THE COURT, DEPENDENT ON
GENERAL EQUITABLE CONSIDERATIONS, WOULD BE TO REWRITE THE ACT, SO AS TO
VEST IN THE COURT A POWER WHICH CONGRESS DID NOT PLAINLY DELEGATE. 
THIS DISCRETIONARY POWER OF THE COURT IS EXHAUSTED WHEN THE COURT
TERMINATES THE PROCEEDINGS OR ACCELERATES THEIR TERMINATION.  SUCH
TERMINATION CAN BE EFFECTED ONLY PURSUANT TO THE PRECISE PROCEDURE
WHICH CONGRESS HAS PROVIDED.  AND SO WE RETURN TO OUR RECONCILIATION OF
THE TWO APPARENTLY CONFLICTING PROVISOS OF SEC. 75(S)(3). 

WE HOLD THAT THE DEBTOR'S CROSS PETITION SHOULD HAVE BEEN GRANTED;
THAT HE WAS ENTITLED TO HAVE THE PROPERTY REAPPRAISED OR THE VALUE
FIXED AT A HEARING; THAT THE VALUE HAVING BEEN DETERMINED AT A HEARING
IN CONFORMITY WITH HIS REQUEST, HE WAS THEN ENTITLED TO HAVE A
REASONABLE TIME, FIXED BY THE COURT, IN WHICH TO REDEEM AT THAT VALUE;
AND THAT IF HE DID SO REDEEM, THE LAND SHOULD BE TURNED OVER TO HIM
FREE AND CLEAR OF ENCUMBRANCES AND HIS DISCHARGE GRANTED.  ONLY IN CASE
THE DEBTOR FAILED TO REDEEM WITHIN A REASONABLE TIME WOULD THE COURT BE
AUTHORIZED TO ORDER A PUBLIC SALE. 

SOME QUESTION HAS BEEN RAISED AS TO THE PROPRIETY OF CERTAIN
PROVISIONS OF THE PUBLIC SALE ORDER, PARTICULARLY THOSE WHICH GIVE THE
CREDITOR THE RIGHT TO UTILIZE ALL OF ITS INDEBTEDNESS IN BIDDING FOR
THE PROPERTY. 

THE MAJORITY OF THE COURT IS OF OPINION THAT EXCEPT FOR THE
MODIFICATION WE HAVE INDICATED THE ORDER FOR SALE SHOULD STAND WITH THE
PRIVILEGE OF THE RESPONDENT MORTGAGEE TO PURCHASE AT THE SALE AND TO
RECEIVE CREDIT FOR THE INDEBTEDNESS OF THE DEBTOR IN SATISFACTION OF
THE PURCHASE PRICE AND WITH THE PRIVILEGE OF THE DEBTOR TO REDEEM
WITHIN NINETY DAYS UPON PAYMENT OF THE SALES PRICE AND INTEREST
THEREON, AS PROVIDED BY SEC. 75(S)(3) OF THE ACT. 

TO THE EXTENT INDICATED, WE MODIFY THE JUDGMENT; AND WE REMAND THE
CAUSE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH
THIS OPINION.  MODIFIED. 

FN1  ACT OF MARCH 3, 1933, C. 204, 47 STAT. 1467, 1470; ACT OF JUNE
28, 1934, C. 869, 48 STAT. 1289; ACT OF AUGUST 28, 1935, C. 792, 49
STAT. 942, 943.  THE PETITION WAS AMENDED OCTOBER 11, 1935, AS
AUTHORIZED BY SEC. 75(S) AS ENACTED BY THE ACT OF AUGUST 28, 1935. 
SEC. 75 HAS BEEN FURTHER AMENDED BY THE ACTS OF MARCH 4, 1938, AND JUNE
22, 1938, 52 STAT. 84, 85, 939, AND BY THE ACT OF MARCH 4, 1940, C. 39,
54 STAT. 40, BUT IN RESPECTS NOT MATERIAL HERE.  SEC. 75, AS NOW IN
FORCE, APPEARS IN 11 U.S.C. SEC. 203. 

FN2  SEC. 75(S)(3) GRANTS THE DEBTOR NINETY DAYS TO REDEEM ANY
PROPERTY SOLD AT A PUBLIC SALE, BY PAYING THE AMOUNT FOR WHICH IT WAS
SOLD, TOGETHER WITH 5% INTEREST, INTO COURT. 

FN3  SEC. 75(S)(3) READS AS FOLLOWS: 

"AT THE END OF THREE YEARS, OR PRIOR THERETO, THE DEBTOR MAY PAY INTO
COURT THE AMOUNT OF THE APPRAISAL OF THE PROPERTY OF WHICH HE RETAINS
POSSESSION, INCLUDING THE AMOUNT OF ENCUMBRANCES ON HIS EXEMPTIONS, UP
TO THE AMOUNT OF THE APPRAISAL, LESS THE AMOUNT PAID ON PRINCIPAL:
PROVIDED, THAT UPON REQUEST OF ANY SECURED OR UNSECURED CREDITOR, OR
UPON REQUEST OF THE DEBTOR, THE COURT SHALL CAUSE A REAPPRAISAL OF THE
DEBTOR'S PROPERTY, OR IN ITS DISCRETION SET A DATE FOR HEARING, AND
AFTER SUCH HEARING, FIX THE VALUE OF THE PROPERTY, IN ACCORDANCE WITH
THE EVIDENCE SUBMITTED, AND THE DEBTOR SHALL THEN PAY THE VALUE SO
ARRIVED AT INTO COURT, LESS PAYMENTS MADE ON THE PRINCIPAL, FOR
DISTRIBUTION TO ALL SECURED AND UNSECURED CREDITORS, AS THEIR INTERESTS
MAY APPEAR, AND THEREUPON THE COURT SHALL, BY AN ORDER, TURN OVER FULL
POSSESSION AND TITLE OF SAID PROPERTY, FREE AND CLEAR OF ENCUMBRANCES
TO THE DEBTOR:  PROVIDED, THAT UPON REQUEST IN WRITING BY ANY SECURED
CREDITOR OR CREDITORS, THE COURT SHALL ORDER THE PROPERTY UPON WHICH
SUCH SECURED CREDITORS HAVE A LIEN TO BE SOLD AT PUBLIC AUCTION.  THE
DEBTOR SHALL HAVE NINETY DAYS TO REDEEM ANY PROPERTY SOLD AT SUCH SALE,
BY PAYING THE AMOUNT FOR WHICH ANY SUCH PROPERTY WAS SOLD, TOGETHER
WITH 5 PER CENTUM PER ANNUM INTEREST, INTO COURT, AND HE MAY APPLY FOR
HIS DISCHARGE, AS PROVIDED FOR BY THIS ACT.  IF, HOWEVER, THE DEBTOR AT
ANY TIME FAILS TO COMPLY WITH THE PROVISIONS OF THIS SECTION, OR WITH
ANY ORDERS OF THE COURT MADE PURSUANT TO THIS SECTION, OR IS UNABLE TO
REFINANCE HIMSELF WITHIN THREE YEARS, THE COURT MAY ORDER THE
APPOINTMENT OF A TRUSTEE, AND ORDER THE PROPERTY SOLD OR OTHERWISE
DISPOSED OF AS PROVIDED FOR IN THIS ACT." 

FN4  S. REP. NO. 985, 74TH CONG., 1ST SESS.; H. REP. NO. 1808, 74TH
CONG., 1ST SESS.
..END :














DECKERT V. INDEPENDENCE CORP., 311 U.S. 282 


NO. 17.  ARGUED OCTOBER 18, 1940.  - DECIDED DECEMBER 9, 1940.  - 108
F.2D 51, REVERSED. 


1.  A BILL OF COMPLAINT FILED IN THE DISTRICT COURT BY PURCHASERS OF
SECURITIES UNDER A FINANCIAL PLAN WHICH INVOLVED A TRUST, ALLEGED IN
SUBSTANCE THAT THE VENDOR SOLD THE SECURITIES BY MEANS WHICH RENDERED
IT LIABLE TO THE PURCHASERS UNDER THE SECURITIES ACT OF 1933; THAT THE
VENDOR WAS INSOLVENT, WAS THREATENED WITH MANY LAWSUITS, AND ITS ASSETS
WERE IN DANGER OF DISSIPATION OR DEPLETION; AND THAT THE TRUSTEE WAS IN
POSSESSION OF ASSETS CONSISTING IN PART OF PAYMENTS MADE BY THE
PURCHASERS.  THE BILL PRAYED THE APPOINTMENT OF A RECEIVER FOR THE
VENDOR, WITH POWER TO LIQUIDATE ASSETS AND TO PAY CLAIMS OF THE
COMPLAINANTS; AN INJUNCTION RESTRAINING THE TRUSTEE FROM TRANSFERRING
OR DISPOSING OF ASSETS OF THE TRUST; AND GENERAL RELIEF.  HELD: 

(1)  AN APPEAL TO THE CIRCUIT COURT OF APPEALS FROM AN INTERLOCUTORY
ORDER GRANTING AN INJUNCTION WAS AUTHORIZED BY SEC. 129 OF THE JUDICIAL
CODE AND WAS NOT PREMATURE.  P. 286. 

(2) UPON SUCH APPEAL THE CIRCUIT COURT OF APPEALS COULD PROPERLY
DETERMINE THE CORRECTNESS OF THE DISTRICT COURT'S DENIAL OF MOTIONS TO
DISMISS THE BILL, ALTHOUGH NORMALLY SUCH DENIAL WOULD BE APPEALABLE
ONLY AFTER A FINAL DECREE.  P. 287. 

(3)  MOTIONS TO DISMISS THE BILL BECAUSE IT FAILED TO STATE A CAUSE
OF ACTION, AND BECAUSE THE DISTRICT COURT LACKED JURISDICTION, WERE
PROPERLY DENIED.  P. 287. 

(4)  THE DISTRICT COURT HAD JURISDICTION OF THE SUIT UNDER SEC. 22(A)
OF THE SECURITIES ACT, IRRESPECTIVE OF THE AMOUNT IN CONTROVERSY OR THE
CITIZENSHIP OF THE PARTIES.  P. 289. 

(5)  THE GRANT OF A TEMPORARY INJUNCTION BY THE DISTRICT COURT -
RESTRAINING THE TRANSFER OF FUNDS HELD BY THE TRUSTEE FOR THE ACCOUNT
OF THE VENDOR, UPON SECURITY BEING GIVEN TO PROTECT THE DEFENDANTS -
WAS PROPER TO PRESERVE THE STATUS QUO PENDING FINAL DETERMINATION OF
THE QUESTIONS RAISED BY THE BILL.  P. 290. 

THE GRANT OF A TEMPORARY INJUNCTION IS WITHIN THE DISCRETION OF THE
TRIAL COURT AND WILL NOT BE DISTURBED ON APPEAL UNLESS IT BE CONTRARY
TO EQUITY OR AN ABUSE OF DISCRETION. 

(6)  THE ALLEGATIONS OF THE BILL SUFFICIENTLY SHOWED THAT THE LEGAL
REMEDY AGAINST THE VENDOR, WITHOUT RECOURSE TO THE FUND IN POSSESSION
OF THE TRUSTEE, WOULD BE INADEQUATE.  P. 290. 

(7)  ORDERS OF THE DISTRICT COURT ALLOWING THE BRINGING IN OF TWO
ADDITIONAL PLAINTIFFS, AND REFERRING THE ISSUE OF INSOLVENCY TO A
MASTER, WERE INTERLOCUTORY AND NOT REVIEWABLE EXCEPT UPON APPEAL FROM A
FINAL DECREE.  P. 290. 

2.  THE RELIEF OF PURCHASERS WHO HAVE BEEN SOLD SECURITIES BY MEANS
WHICH RENDER THE SELLER LIABLE UNDER THE SECURITIES ACT OF 1933, IS NOT
RESTRICTED TO A MONEY JUDGMENT.  P. 287. 

3.  THE JURISDICTION CONFERRED ON THE DISTRICT COURT BY SEC. 22(A) OF
THE SECURITIES ACT OF SUITS "TO ENFORCE ANY LIABILITY OR DUTY" CREATED
BY THE ACT, IMPLIES THE POWER TO MAKE EFFECTIVE THE RIGHT OF RECOVERY
AFFORDED BY THE ACT, AND THE POWER TO MAKE THE RIGHT OF RECOVERY
EFFECTIVE IMPLIES THE POWER TO UTILIZE ANY OF THE PROCEDURES OR ACTIONS
NORMALLY AVAILABLE TO A LITIGANT IN THE EXIGENCIES OF THE PARTICULAR
CASE.  P. 288. 

4.  A SUIT TO RESCIND A CONTRACT INDUCED BY FRAUD, AND TO RECOVER THE
CONSIDERATION PAID, IS COGNIZABLE IN EQUITY, AT LEAST WHERE THE LEGAL
REMEDY IS INADEQUATE.  P. 289. 

DECKERT ET AL. V. INDEPENDENCE SHARES CORP. ET AL.* 

*TOGETHER WITH NO. 18, DECKERT ET AL. V. PENNSYLVANIA COMPANY FOR
INSURANCES ON LIVES AND GRANTING ANNUITIES, ALSO ON WRIT OF CERTIORARI,
309 U.S. 648, TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 309 U.S. 648, TO REVIEW THE REVERSAL OF INTERLOCUTORY
ORDERS OF THE DISTRICT COURT, 27 F.SUPP.  763, INCLUDING THE DENIAL OF
MOTIONS TO DISMISS AND THE GRANT OF A TEMPORARY INJUNCTION, IN A SUIT
BASED UPON THE SECURITIES ACT OF 1933. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

TWO IMPORTANT QUESTIONS ARE PRESENTED BY THESE PETITIONS.  THE FIRST
IS WHETHER THE SECURITIES ACT OF 1933(48 STAT. 74) AUTHORIZES
PURCHASERS OF SECURITIES TO MAINTAIN A SUIT IN EQUITY TO RESCIND A
FRAUDULENT SALE AND SECURE RESTITUTION OF THE CONSIDERATION PAID, AND
TO ENFORCE THE RIGHT TO RESTITUTION AGAINST A THIRD PARTY WHERE THE
VENDOR IS INSOLVENT AND THE THIRD PARTY HAS ASSETS IN ITS POSSESSION
BELONGING TO THE VENDOR.  THE SECOND QUESTION IS WHETHER SUCH
PURCHASERS MUST SHOW THAT THE AMOUNT IN CONTROVERSY EXCEEDS $3,000
EXCLUSIVE OF INTEREST AND COSTS AS REQUIRED BY SEC. 24 OF THE JUDICIAL
CODE AS AMENDED (28 U.S.C. SEC. 41). 

PETITIONERS, WITH ONE EXCEPTION RESIDENTS OF PENNSYLVANIA, ARE OWNERS
AND HOLDERS OF CAPITAL SAVINGS PLAN CONTRACT CERTIFICATES PURCHASED
FROM CAPITAL SAVINGS PLAN, INC., SINCE MERGED WITH AND NOW INDEPENDENCE
SHARES CORPORATION, A PENNSYLVANIA CORPORATION.  THESE CERTIFICATES
REQUIRED THE HOLDERS TO MAKE CERTAIN INSTALLMENT PAYMENTS TO THE
PENNSYLVANIA COMPANY FOR INSURANCES ON LIVES AND GRANTING ANNUITIES,
ALSO A PENNSYLVANIA CORPORATION.  FN1  PENNSYLVANIA, AFTER DEDUCTING
CERTAIN FIXED CHARGES, USED THE BALANCE OF THESE INSTALLMENT PAYMENTS
TO PURCHASE INDEPENDENCE TRUST SHARES FOR THE BENEFIT OF THE
CERTIFICATE HOLDERS.  INDEPENDENCE TRUST SHARES, ISSUED BY
PENNSYLVANIA, REPRESENTED INTERESTS IN A TRUST OF COMMON STOCKS OF 42
AMERICAN CORPORATIONS DEPOSITED BY INDEPENDENCE WITH PENNSYLVANIA. 
PURSUANT TO TRUST AGREEMENT AND INDENTURE BETWEEN PENNSYLVANIA AND
INDEPENDENCE, PENNSYLVANIA COLLECTED DIVIDENDS AND PROFITS FROM THE
STOCKS AND ADMINISTERED THE TRUST. 

PETITIONERS BROUGHT THIS SUIT IN THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA AGAINST PENNSYLVANIA, INDEPENDENCE, TWO
AFFILIATED COMPANIES, AND CERTAIN OFFICERS AND DIRECTORS OF
INDEPENDENCE WHOSE RESIDENCE DOES NOT APPEAR.  THE ACTION AGAINST THE
AFFILIATED COMPANIES HAS BEEN DISMISSED. 

THE BILL ALLEGES THAT INDEPENDENCE AND ITS PREDECESSOR CAPITAL WERE
GUILTY OF FRAUDULENT MISREPRESENTATIONS AND CONCEALMENTS IN THEIR SALE
AND ADVERTISEMENT OF CONTRACT CERTIFICATES TO PETITIONERS AND OTHERS
SIMILARLY SITUATED IN VIOLATION OF THE SECURITIES ACT OF 1933.  IT
ALLEGES THAT INDEPENDENCE IS INSOLVENT AND THREATENED WITH MANY LAW
SUITS, THAT ITS BUSINESS IS VIRTUALLY AT A STANDSTILL BECAUSE OF
UNFAVORABLE PUBLICITY, THAT PREFERENCES TO CREDITORS ARE PROBABLE, AND
THAT ITS ASSETS ARE IN DANGER OF DISSIPATION AND DEPLETION. 
PETITIONERS THEREFORE PRAY THE APPOINTMENT OF A RECEIVER FOR
INDEPENDENCE WITH POWER TO COLLECT AND TAKE POSSESSION OF THE ASSETS OF
INDEPENDENCE AND THE TRUST ASSETS HELD BY PENNSYLVANIA, LIQUIDATE THE
ASSETS, DETERMINE THE CLAIMS OF PETITIONERS AND OTHER CERTIFICATE
HOLDERS AND PAY THEM, AND WIND UP AND DISSOLVE THE CORPORATIONS.  THEY
ALSO SEEK RELIEF INCIDENTAL TO THE ABOVE AND AN INJUNCTION RESTRAINING
PENNSYLVANIA FROM TRANSFERRING OR DISPOSING OF ANY OF THE ASSETS OF THE
CORPORATIONS OR OF THE TRUST.  THERE IS THE USUAL PRAYER FOR GENERAL
RELIEF. 

NONE OF THE ORIGINAL PETITIONERS' CLAIMS EXCEEDS $3,000 AND
RESPONDENTS CONTEND THAT THE AGGREGATE OF ALL OF THEM WILL NOT EXCEED
$3,000.  IT IS CONCEDED THAT THE ASSETS SOUGHT TO BE REACHED ARE
GREATLY IN EXCESS OF $3,000. 

RESPONDENTS ANSWERED THE BILL AND THEREAFTER MOVED TO DISMISS IT.
THE MOTIONS WERE HEARD WITH PETITIONERS' MOTIONS FOR A TEMPORARY
INJUNCTION AND THE ADDITION OF TWO PLAINTIFFS.  THE TRIAL JUDGE DENIED
THE MOTIONS TO DISMISS, APPROVED THE ADDITION OF TWO PLAINTIFFS, BUT
RESERVED DECISION ON THE APPLICATION FOR A RECEIVER.  HE DIRECTED THE
APPOINTMENT OF A MASTER TO TAKE TESTIMONY AND FILE A REPORT ON THE
QUESTION OF THE INSOLVENCY OF INDEPENDENCE, AND ENJOINED PENNSYLVANIA
FROM TRANSFERRING OR OTHERWISE DISPOSING OF THE SUM OF $38,258.85
REPRESENTING CERTAIN CHARGES, INCOME, AND PROCEEDS RECEIVED IN
ADMINISTRATION OF THE TRUST.  27 F.SUPP.  763. 

PENNSYLVANIA, INDEPENDENCE, AND THE INDIVIDUAL DEFENDANTS APPEALED
FROM THESE ORDERS.  THE CIRCUIT COURT OF APPEALS DID NOT EXPRESSLY
CONSIDER WHETHER THE APPEALS WERE PREMATURE.  IT THOUGHT THAT THE
SECURITIES ACT DID NOT AUTHORIZE A BILL SEEKING EQUITABLE RELIEF
AGAINST A THIRD PARTY WHICH HAS ASSETS BELONGING TO THE VENDOR, AND
THEREFORE, THAT PENNSYLVANIA WAS NOT A PROPER PARTY TO THE SUIT SINCE
NO CAUSE OF ACTION UNDER THE SECURITIES ACT WAS STATED AGAINST IT.  IT
REVERSED ALL OF THE ORDERS APPEALED FROM AND REMANDED THE CAUSE WITH
DIRECTIONS TO ALLOW PETITIONERS TO AMEND THEIR COMPLAINT TO STATE A
CLAIM FOR A MONEY JUDGMENT AT LAW AGAINST INDEPENDENCE ONLY.  108 F.2D
51.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTIONS
PRESENTED.  309 U.S. 648. 

WE BELIEVE THAT THE APPEALS FROM THE ORDER GRANTING THE TEMPORARY
INJUNCTION WERE NOT PREMATURE.  IT IS TRUE THAT SEC. 128 OF THE
JUDICIAL CODE (28 U.S.C. SEC. 225) AUTHORIZES CIRCUIT COURTS OF APPEALS
TO REVIEW ONLY FINAL DECISIONS.  BUT SEC. 129 OF THE JUDICIAL CODE (28
U.S.C. SEC. 227) EXPRESSLY EXCEPTS FROM THE GENERAL RULE CERTAIN
INTERLOCUTORY ORDERS AND DECREES.  IT PROVIDES IN PART:  "WHERE, UPON A
HEARING IN A DISTRICT COURT  ...  AN INJUNCTION IS GRANTED  ...  BY AN
INTERLOCUTORY ORDER OR DECREE  ...  AN APPEAL MAY BE TAKEN FROM SUCH
INTERLOCUTORY ORDER OR DECREE TO THE CIRCUIT COURT OF APPEALS.  ...  "
THUS BY THE PLAIN WORDS OF SEC. 129 THE CIRCUIT COURT OF APPEALS WAS
AUTHORIZED TO CONSIDER THE APPEALS FROM THE TEMPORARY INJUNCTION. 
COMPARE ENELOW V. NEW YORK LIFE INSURANCE CO., 293 U.S. 379; SHANFEROKE
COAL & SUPPLY CORP. V. WESTCHESTER SERVICE CORP., 293 U.S. 449. 

HOWEVER, THIS POWER IS NOT LIMITED TO MERE CONSIDERATION OF, AND
ACTION UPON, THE ORDER APPEALED FROM.  "IF INSUPERABLE OBJECTION TO
MAINTAINING THE BILL CLEARLY APPEARS, IT MAY BE DISMISSED AND THE
LITIGATION TERMINATED."  MECCANO, LTD. V. WANAMAKER, 253 U.S. 136,
141.  SEE ALSO EAGLE GLASS & MFG. CO. V. ROWE, 245 U.S. 275;
METROPOLITAN WATER CO. V. KAW VALLEY DRAINAGE DISTRICT, 223 U.S. 519;
MAST, FOOS & CO. V. STOVER MFG. CO., 177 U.S. 485; SMITH V. VULCAN IRON
WORKS, 165 U.S. 518.  ACCORDINGLY, THE CIRCUIT COURT OF APPEALS
PROPERLY EXAMINED THE INTERLOCUTORY ORDER DENYING THE MOTIONS TO
DISMISS, ALTHOUGH GENERALLY IT COULD CONSIDER SUCH AN ORDER ONLY ON
APPEAL FROM A FINAL DECISION.  REED V. LEHMAN, 91 F.2D 919; MILLER V.
PYRITES CO., 71 F.2D 804.  COMPARE GILLESPIE V. SCHRAM, 108 F.2D 39;
RODRIGUEZ V. AROSEMENA, 91 F.2D 219; KNEBERG V. GREEN CO., 89 F.2D 100;
SATTERLEE V. HARRIS, 60 F.2D 490. 

RESPONDENTS' MOTIONS SOUGHT TO DISMISS THE BILL BECAUSE IT FAILED TO
STATE ANY CAUSE OF ACTION AND BECAUSE THE DISTRICT COURT LACKED
JURISDICTION.  WE HOLD THAT THESE MOTIONS WERE CORRECTLY DENIED. 

WE THINK THE SECURITIES ACT DOES NOT RESTRICT PURCHASERS SEEKING
RELIEF UNDER ITS PROVISIONS TO A MONEY JUDGMENT.  ON THE CONTRARY, THE
ACT AS A WHOLE INDICATES AN INTENTION TO ESTABLISH A STATUTORY RIGHT
WHICH THE LITIGANT MAY ENFORCE IN DESIGNATED COURTS BY SUCH LEGAL OR
EQUITABLE ACTIONS OR PROCEDURES AS WOULD NORMALLY BE AVAILABLE TO HIM. 
UNDOUBTEDLY ANY SUIT TO ESTABLISH THE CIVIL LIABILITY IMPOSED BY THE
ACT MUST ULTIMATELY SEEK RECOVERY OF THE CONSIDERATION PAID LESS INCOME
RECEIVED OR DAMAGES IF THE CLAIMANT NO LONGER OWNS THE SECURITY.  SEC.
12(2); 15 U.S.C. SEC. 77(1)(2).  BUT SEC. 12(2) STATES THE LEGAL
CONSEQUENCES OF CONDUCT PROSCRIBED BY THE ACT; IT DOES NOT PURPORT TO
STATE THE FORM OF ACTION OR PROCEDURE THE CLAIMANT IS TO EMPLOY. 

MOREOVER, IN SEC. 22(A)(15 U.S.C., SEC. 77V) SPECIFIED COURTS ARE
GIVEN JURISDICTION "OF ALL SUITS IN EQUITY AND ACTIONS AT LAW BROUGHT
TO ENFORCE ANY LIABILITY OR DUTY CREATED BY THIS SUBCHAPTER."  THE
POWER TO ENFORCE IMPLIES THE POWER TO MAKE EFFECTIVE THE RIGHT OF
RECOVERY AFFORDED BY THE ACT.  AND THE POWER TO MAKE THE RIGHT OF
RECOVERY EFFECTIVE IMPLIES THE POWER TO UTILIZE ANY OF THE PROCEDURES
OR ACTIONS NORMALLY AVAILABLE TO THE LITIGANT ACCORDING TO THE
EXIGENCIES OF THE PARTICULAR CASE.  IF PETITIONERS' BILL STATES A CAUSE
OF ACTION WHEN TESTED BY THE CUSTOMARY RULES GOVERNING SUITS OF SUCH
CHARACTER, THE SECURITIES ACT AUTHORIZES MAINTENANCE OF THE SUIT,
PROVIDING THE BILL CONTAINS THE ALLEGATIONS THE ACT REQUIRES.  THAT IT
DOES NOT AUTHORIZE THE BILL IN SO MANY WORDS IS NO MORE SIGNIFICANT
THAN THE FACT THAT IT DOES NOT IN TERMS AUTHORIZE EXECUTION TO ISSUE ON
A JUDGMENT RECOVERED UNDER SEC. 12(2). 

WE ARE OF OPINION THAT THE BILL STATES A CAUSE FOR EQUITABLE RELIEF. 
THERE ARE ALLEGATIONS THAT INDEPENDENCE IS INSOLVENT, THAT ITS BUSINESS
IS PRACTICALLY HALTED, THAT IT IS THREATENED WITH MANY LAW SUITS, THAT
ITS ASSETS ARE ENDANGERED, AND THAT PREFERENCES TO CREDITORS ARE
PROBABLE.  THERE ARE PRAYERS FOR AN ACCOUNTING, APPOINTMENT OF A
RECEIVER, AN INJUNCTION PENDENTE LITE, AND FOR RETURN OF PETITIONERS'
PAYMENTS.  OTHER ALLEGATIONS SHOW THAT ALTHOUGH PETITIONERS DEALT WITH
INDEPENDENCE THEIR INSTALLMENTS WERE PAID TO PENNSYLVANIA AND THAT THE
COMPLICATED ARRANGEMENT BETWEEN PENNSYLVANIA AND INDEPENDENCE MIGHT
MAKE IT EXTREMELY DIFFICULT TO OBTAIN SATISFACTION OF ANY CLAIM
ESTABLISHED AGAINST INDEPENDENCE. 

THE PRINCIPAL OBJECTS OF THE SUIT ARE RESCISSION OF THE SAVINGS PLAN
CONTRACTS AND RESTITUTION OF THE CONSIDERATION PAID, INCLUDING RECOVERY
OF THE BALANCE, HELD BY PENNSYLVANIA FOR ACCOUNT OF INDEPENDENCE, WHICH
CONSISTED IN PART OF THE PAYMENTS ALLEGED TO HAVE BEEN PROCURED BY THE
FRAUD OF INDEPENDENCE.  THAT A SUIT TO RESCIND A CONTRACT INDUCED BY
FRAUD AND TO RECOVER THE CONSIDERATION PAID MAY BE MAINTAINED IN
EQUITY, AT LEAST WHERE THERE ARE CIRCUMSTANCES MAKING THE LEGAL REMEDY
INADEQUATE, IS WELL ESTABLISHED.  TYLER V. SAVAGE, 143 U.S. 79;
MONTGOMERY V. BUCYRUS MACHINE WORKS, 92 U.S. 257; BOYCE'S EXECUTORS V.
GRUNDY, 3 PET. 210.  SEE BLACK, RESCISSION AND CANCELLATION, 2D
EDITION, SEC. 643, ET SEQ.; WILLISTON, CONTRACTS, 3D EDITION, SEC.
1525, ET SEQ.; POMEROY, EQUITY JURISPRUDENCE, 4TH EDITION, SECS. 881,
1092.  FN3 

IT IS ENOUGH AT THIS TIME TO DETERMINE THAT THE BILL CONTAINS
ALLEGATIONS WHICH, IF PROVED, ENTITLE PETITIONERS TO SOME EQUITABLE
RELIEF.  WHETHER OR NOT THEY SUFFICIENTLY ALLEGE OR PROVE THEIR RIGHT
TO ALL OF THE RELIEF PRAYED IN THE BILL WE DO NOT DECIDE BECAUSE THE
QUESTION IS NOT BEFORE US.  HENCE, IF THE DISTRICT COURT HAD
JURISDICTION IT WAS PROPER TO CONSIDER WHETHER INJUNCTIVE RELIEF SHOULD
BE GIVEN IN AID OF THE RECOVERY SOUGHT BY THE BILL. 

WE AGREE WITH THE COURTS BELOW THAT THE SECURITIES ACT CONFERS
JURISDICTION OF THE SUIT UPON THE DISTRICT COURT IRRESPECTIVE OF THE
AMOUNT IN CONTROVERSY OR THE CITIZENSHIP OF THE PARTIES.  SECTION 22(A)
PROVIDES IN PART:  "THE DISTRICT COURTS OF THE UNITED STATES  ...
SHALL HAVE JURISDICTION  ...  OF ALL SUITS IN EQUITY AND ACTIONS AT LAW
BROUGHT TO ENFORCE ANY LIABILITY OR DUTY CREATED BY THIS SUBCHAPTER." 
THIS IS PLAINLY A SUIT TO ENFORCE A LIABILITY OR DUTY CREATED BY THE
ACT.  THAT THE DISTRICT COURT THEREFORE HAS JURISDICTION IS EVIDENT
FROM THE PROVISION QUOTED.  ACCORDINGLY, THE ONLY REMAINING QUESTION IS
WHETHER THE INJUNCTION WAS PROPER. 

WE HOLD THAT THE INJUNCTION WAS A REASONABLE MEASURE TO PRESERVE THE
STATUS QUO PENDING FINAL DETERMINATION OF THE QUESTIONS RAISED BY THE
BILL.  "IT IS WELL SETTLED THAT THE GRANTING OF A TEMPORARY INJUNCTION,
PENDING FINAL HEARING, IS WITHIN THE SOUND DISCRETION OF THE TRIAL
COURT; AND THAT, UPON APPEAL, AN ORDER GRANTING SUCH AN INJUNCTION WILL
NOT BE DISTURBED UNLESS CONTRARY TO SOME RULE OF EQUITY, OR THE RESULT
OF IMPROVIDENT EXERCISE OF JUDICIAL DISCRETION."  PRENDERGAST V. NEW
YORK TELEPHONE CO., 262 U.S. 43, 50-51; MECCANO, LTD. V. WANAMAKER, 253
U.S. 136, 141.  AS ALREADY STATED, THERE WERE ALLEGATIONS THAT
INDEPENDENCE WAS INSOLVENT AND ITS ASSETS IN DANGER OF DISSIPATION OR
DEPLETION.  THIS BEING SO, THE LEGAL REMEDY AGAINST INDEPENDENCE,
WITHOUT RECOURSE TO THE FUND IN THE HANDS OF PENNSYLVANIA, WOULD BE
INADEQUATE.  THE INJUNCTION WAS FRAMED NARROWLY TO RESTRAIN ONLY THE
TRANSFER OF $38,258.85, AND THE TRIAL JUDGE REQUIRED PETITIONERS TO
FURNISH SECURITY FOR ANY LOSSES RESPONDENTS MIGHT SUFFER.  IN VIEW OF
THIS WE CANNOT SAY THAT THE TRIAL JUDGE ABUSED HIS DISCRETION IN
GRANTING THE TEMPORARY INJUNCTION. 

WE CONCLUDE THAT THE ORDERS GRANTING THE TEMPORARY INJUNCTION AND
DENYING THE MOTIONS TO DISMISS WERE CORRECT AND SHOULD HAVE BEEN
SUSTAINED.  THE ORDERS ALLOWING THE ADDITION OF TWO PLAINTIFFS AND
REFERRING THE ISSUE OF INSOLVENCY TO A MASTER WERE INTERLOCUTORY AND
NOT APPEALABLE (28 U.S.C. SEC. 225),  FN4  AND SHOULD HAVE BEEN
REVERSED ONLY IF PETITIONERS WERE NOT ENTITLED TO ANY EQUITABLE
RELIEF.  SEE MECCANO, LTD. V. WANAMAKER, 253 U.S. 136; SMITH V. VULCAN
IRON WORKS, 165 U.S. 518.  THE CIRCUIT COURT OF APPEALS PROPERLY DID
NOT CONSIDER THEM ON THE MERITS, AND IF ULTIMATELY THERE IS AN APPEAL
FROM A FINAL DECREE THE CORRECTNESS OF THESE ORDERS MAY BE EXAMINED. 
THE DECISION OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE CAUSE
IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  FOR CONVENIENCE THE THREE CORPORATIONS JUST NAMED WILL BE
REFERRED TO AS CAPITAL, INDEPENDENCE, AND PENNSYLVANIA. 

FN3  IN FALK V. HOFFMAN, 233 N.Y. 199, 202; 135 N.E. 243, 244, JUDGE
CARDOZO SAID:  "EQUITY WILL NOT BE OVER-NICE IN BALANCING THE EFFICACY
OF ONE REMEDY AGAINST THE EFFICACY OF ANOTHER WHEN ACTION WILL BAFFLE,
AND INACTION MAY CONFIRM, THE PURPOSE OF THE WRONGDOER." 

FN4  AN ORDER ALLOWING THE ADDITION OF PLAINTIFFS IS INTERLOCUTORY
AND NOT APPEALABLE:  CENTRAL CALIFORNIA CANNERIES CO. V. DUNKLEY CO.,
282 F. 406, 410.  SEE ONEIDA NAVIGATION CORP. V. W. & S. JOB & CO., 252
U.S. 521; CYCLOPEDIA OF FEDERAL PROCEDURE, VOL. 5, SEC. 2608. 

AN ORDER OF REFERENCE TO A MASTER IS GENERALLY INTERLOCUTORY AND NOT
APPEALABLE, AT LEAST IF NOT FOR A MERE MINISTERIAL PURPOSE:  GEORGE V.
VICTOR TALKING MACHINE CO., 293 U.S. 377.  SEE LATTA V. KILBOURN, 150
U.S. 524; MCGOURKEY V. TOLEDO & OHIO CENTRAL RY. CO., 146 U.S. 536;
HILL V. CHICAGO & EVANSTON R. CO., 140 U.S. 52; BEEBE V. RUSSELL, 19
HOW.  283; CRAIGHEAD V. WILSON, 18 HOW.  199; FORGAY V. CONRAD, 6 HOW. 
201; CYCLOPEDIA OF FEDERAL PROCEDURE, VOL. 5, SEC. 2618. 

MR. JUSTICE DOUGLAS DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :













UNITED STATES V. HARRIS, 311 U.S. 292 


NO. 52.  ARGUED NOVEMBER 22, 1940.  - DECIDED DECEMBER 9, 1940.  -
REVERSED. 


1.  AN INDICTMENT CHARGING THE DEFENDANT WITH HAVING FALSELY TESTIFIED
UNDER OATH BEFORE A FEDERAL GRAND JURY - IN ANSWER TO A QUESTION
MATERIAL TO THE INVESTIGATION, AND KNOWING THE ANSWER TO BE FALSE -
THAT HE DID NOT MAKE CERTAIN STATEMENTS TO GOVERNMENT AGENTS CONCERNING
EARLIER CONVERSATIONS WITH OTHERS REGARDING THE OPERATION OF PLACES OF
ILL REPUTE, SUFFICIENTLY CHARGES PERJURY IN VIOLATION OF SEC. 125 OF
THE CRIMINAL CODE.  PP. 293, 295. 

2.  THE ALLEGED PERJURY CONSISTS NOT IN THE ACCUSED HAVING
CONTRADICTED BEFORE THE GRAND JURY EARLIER STATEMENTS MADE BY HIM IN
CONVERSATION WITH OTHERS, BUT IN HIS HAVING SWORN FALSELY THAT HE HAD
NEVER TOLD GOVERNMENT AGENTS HE HAD MADE SUCH STATEMENTS.  P. 294. 

UNITED STATES V. HARRIS* . 

*TOGETHER WITH NO. 53, UNITED STATES V. KENNY, ALSO ON APPEAL FROM
THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW
JERSEY. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEW JERSEY. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM AN ORDER OF THE DISTRICT
COURT QUASHING AN INDICTMENT FOR PERJURY. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

IN A PROCEEDING BEFORE A GRAND JURY, APPELLEES WERE ASKED WHETHER, IN
1937, THEY HAD MADE CERTAIN STATEMENTS TO GOVERNMENT AGENTS CONCERNING
EARLIER CONVERSATIONS WITH ONE RAY BORN AND OTHERS REGARDING THE
OPERATION OF PLACES OF ILL REPUTE.  THEY DENIED HAVING MADE THE
STATEMENTS.  THE GRAND JURY THEREUPON FOUND THE INDICTMENTS  FN1  NOW
BEFORE US WHICH CHARGE, IN EFFECT, THAT APPELLEES' TESTIMONY WAS FALSE,
THAT IT WAS MATERIAL TO THE INVESTIGATION OF THE GRAND JURY, AND THAT
APPELLEES THEREFORE COMMITTED PERJURY IN VIOLATION OF SEC. 125 OF THE
CRIMINAL CODE (35 STAT. 1111, 18 U.S.C. SEC. 231).  FN2 

APPELLEES PROMPTLY MOVED TO QUASH THE INDICTMENTS ON THE GROUND THAT
THEY FAILED "TO CHARGE AN OFFENSE AGAINST THE UNITED STATES."  AFTER
HEARING ON THE MOTIONS, THE TRIAL JUDGE ENTERED ORDERS IN BOTH CASES
QUASHING THE INDICTMENTS BECAUSE THEY DID NOT CHARGE AN OFFENSE UNDER
THE STATUTE.  THE CASES ARE HERE ON APPEALS FROM THESE RULINGS.  18
U.S.C. SEC. 682, 28 U.S.C. SEC. 345; SEE UNITED STATES V. BORDEN CO.,
308 U.S. 188, 193. 

THE SOLE QUESTION PRESENTED BY THE TWO CASES IS WHETHER THE
INDICTMENTS CHARGE AN OFFENSE UNDER THE STATUTE.  THE INDICTMENT
AGAINST MAY HARRIS ALLEGED THAT "  ...  THE SAID MAY HARRIS  ...  AT
THE TIMES SHE MADE THE STATEMENTS AFORESAID (BEFORE THE GRAND JURY),
THEN AND THERE WELL AND FULLY KNEW THAT THEY WERE, AS A MATTER OF FACT,
FALSE AND UNTRUE IN THAT, AND FOR THE REASON THAT, MAY HARRIS AFORESAID
THEN AND THERE WELL AND FULLY KNEW THAT SHE DID IN FACT TELL AND INFORM
THE SAID SPECIAL AGENTS  ...  THAT SHE HAD GONE TO RAY BORN IN 1932 AND
TALKED TO HIM  ...  ; THAT SHE HAD SPOKEN TO LOU KISSEL  ...  ; THAT
SHE HAD PAID MONEY TO SAID JAMES MCCULLOUGH.  ...  "  FN3 

THE TRIAL JUDGE APPARENTLY THOUGHT THAT THE ALLEGED PERJURY CONSISTED
OF CONTRADICTING, BEFORE THE GRAND JURY, THE EARLIER STATEMENTS MADE BY
APPELLEES IN CONVERSATIONS WITH BORN AND OTHERS, FOR IN THE OPINION
ACCOMPANYING THE ORDERS QUASHING THE INDICTMENTS HE STATED:  "  ...  I
AM SATISFIED  ...  THAT PERJURY CANNOT BE PREDICATED UPON A CONTRARY
STATEMENT MADE BY THE WITNESS AT A TIME PRIOR TO OR AFTER THE MAKING OF
THE SWORN STATEMENT, NOTWITHSTANDING THE CLAIM THAT THE WITNESS ON HER
OATH DENIED THAT SHE MADE SUCH STATEMENTS, WHICH, IT IS AVERRED, CAN BE
PROVEN BY TWO OR MORE CREDIBLE WITNESSES."  HE CITED SEVERAL CASES TO
SHOW THAT MERE PROOF OF PRIOR INCONSISTENT OR CONTRADICTORY STATEMENTS
WOULD NOT SUPPORT A CHARGE OF PERJURY.  SEE PHAIR V. UNITED STATES, 60
F.2D 953, 954; CLAYTON V. UNITED STATES, 284 F. 537, 540. 

IT IS EVIDENT, HOWEVER, THAT THE INDICTMENT CHARGED PERJURY NOT IN
THE MERE MAKING OF CONTRADICTORY AND INCONSISTENT STATEMENTS CONCERNING
THESE CONVERSATIONS, BUT IN SWEARING FALSELY BEFORE THE GRAND JURY THAT
APPELLEES HAD NEVER TOLD THE GOVERNMENT AGENTS THEY HAD HAD SUCH
CONVERSATIONS.  MOREOVER, PROOF THAT APPELLEES HAD TOLD GOVERNMENT
AGENTS THAT THEY HAD CONVERSED WITH BORN AND OTHERS WOULD NOT BE
EVIDENCE OF MERE PREVIOUS INCONSISTENT OR CONTRADICTORY STATEMENTS BY
APPELLEES AFFECTING ONLY THEIR CREDIBILITY AS WITNESSES, BUT WOULD BE
DIRECT EVIDENCE OF THE OFFENSE ITSELF AND HENCE WOULD SUPPORT THE
CHARGE MADE IN THE INDICTMENT.  THE DIFFERENCE BETWEEN THE INSTANT
CASES AND SUCH CASES AS PHAIR V. UNITED STATES, 60 F.2D 953, THEREFORE,
IS OBVIOUS AND SUBSTANTIAL.  SEE O'BRIEN V. UNITED STATES, 69 APP. D.C.
135; 99 F.2D 368. 

FALSE ASSERTIONS OF THE FACT OF PRIOR STATEMENTS AND THE FALSE
ASSERTIONS OF ANY OTHER FACT.  NOR CAN WE SEE ANY REASON TO MAKE ONE. 
AS THE GOVERNMENT POINTS OUT, THE DENIAL OF THE FACT THAT CERTAIN
STATEMENTS HAVE BEEN MADE MAY BE EQUALLY AS CLEAR, DELIBERATE, AND
MATERIAL A FALSEHOOD AS THE DENIAL OF ANY OTHER FACT.  AND SINCE
STATEMENTS MADE TO GOVERNMENT AGENTS ARE GENERALLY ONE OF THE BASES
UPON WHICH CRIMINAL PROCEEDINGS ARE INSTITUTED AND INDICTMENTS
RETURNED, SUCH A DISTINCTION MIGHT SUBSTANTIALLY IMPEDE EFFECTIVE
ADMINISTRATION OF CRIMINAL LAW. 

THE FACTS STATED IN THE INDICTMENT ARE CLEARLY SUFFICIENT TO CHARGE A
VIOLATION OF THE PERJURY STATUTE.  ACCORDINGLY, THE ORDERS QUASHING THE
INDICTMENTS ARE REVERSED AND THE CAUSE IS REMANDED.  REVERSED. 

FN1  ALTHOUGH APPELLEES WERE INDICTED SEPARATELY, THE INDICTMENTS IN
ALL MATERIAL RESPECTS ARE IDENTICAL, AND THE APPEALS PRESENT THE SAME
QUESTION.  THEY ARE THEREFORE TREATED IN ONE OPINION. 

FN2  SECTION 125.  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,
SHALL WILLFULLY AND CONTRARY TO SUCH OATH STATE OR SUBSCRIBE ANY
MATERIAL MATTER WHICH HE DOES NOT BELIEVE TO BE TRUE, IS GUILTY OF
PERJURY, AND SHALL BE FINED NOT MORE THAN TWO THOUSAND DOLLARS AND
IMPRISONED NOT MORE THAN FIVE YEARS. 

FN3  THE CHARGE IN THE INDICTMENT AGAINST MARIE KENNY, MUTATIS
MUTANDIS, IS IDENTICAL WITH THE ONE QUOTED. 
..END :




















WISCONSIN V. ILLINOIS, 311 U.S. 107 


NOS. 2, 3, AND 4, ORIGINAL.  ORDER ENTERED NOVEMBER 25, 1940. 


PRECIS-UNAVAILABLE 

WISCONSIN, MINNESOTA, OHIO, AND PENNSYLVANIA V. ILLINOIS AND THE
SANITARY DISTRICT OF CHICAGO ET AL.* 

*FOR THE OPINION AND DECREE IN THESE CASES, SEE 281 U.S. 179, 696;
SEE ALSO, 309 U.S. 569, 636. 

MICHIGAN V. ILLINOIS AND THE SANITARY DISTRICT OF CHICAGO ET AL. 

NEW YORK V. ILLINOIS AND THE SANITARY DISTRICT OF CHICAGO ET AL.

ORDER. 

UPON CONSIDERATION OF THE MOTION OF THE STATES OF WISCONSIN,
MINNESOTA, OHIO, PENNSYLVANIA, MICHIGAN, NEW YORK, AND ILLINOIS, AND IN
ACCORDANCE WITH THE FOLLOWING STIPULATION: 

"WHEREAS, THE STATE OF ILLINOIS CONTENDS THAT ALSO DURING THE PERIOD
INTERVENING BETWEEN THE EFFECTIVE DATE OF THE DECREE AND SINCE THEN
SUBSTANTIAL AMOUNTS OF FLOCCULENT ACTIVE SLUDGE AND SEWAGE SLUDGE HAVE
ACCUMULATED IN THE BRANDON ROAD POOL AND THAT THE EXISTENCE OF SUCH
ACCUMULATION ALSO ADDS TO THE MENACE OF THE HEALTH OF THE PERSONS
LIVING ADJACENT THERETO (WHICH CONTENTION IS DENIED BY THE RESPONDENT
GREAT LAKES STATES) AND, 

WHEREAS, THE SPECIAL MASTER IN THE ABOVE CAPTIONED CAUSES, THE
HONORABLE MONTE M. LEMANN, BEFORE THE CLOSE OF THE HEARINGS, SUGGESTED
THAT THE ATTORNEY GENERAL OF THE STATE OF ILLINOIS AND THE ATTORNEYS
GENERAL OF THE STATES OF WISCONSIN, MINNESOTA, OHIO, PENNSYLVANIA,
MICHIGAN AND NEW YORK (HEREINAFTER REFERRED TO AS THE OPPOSING GREAT
LAKES STATES) CONSIDER THE MAKING OF AN AGREEMENT TO PERMIT A TEMPORARY
INCREASE IN DIVERSION FROM 1500 CUBIC SECOND FEET PLUS DOMESTIC PUMPAGE
NOW AUTHORIZED BY THE DECREE OF THE UNITED STATES SUPREME COURT OF
APRIL 21, 1930, TO 10,000 CUBIC SECOND FEET PLUS DOMESTIC PUMPAGE OF
WATER FROM LAKE MICHIGAN THROUGH THE CHICAGO SANITARY CANAL FOR ONE
CONTINUOUS PERIOD OF TEN DAYS SO AS TO SCOUR OUT THE BRANDON ROAD POOL
AT JOLIET, ILLINOIS, AND ATTEMPT TO REMOVE WHATEVER FLOCCULENT ACTIVE
SLUDGE AND SEWAGE SLUDGE MAY HAVE ACCUMULATED IN SAID POOL, AND 

WHEREAS, THE SPECIAL MASTER SUGGESTED THAT ANY SUCH AGREEMENT BETWEEN
THE STATE OF ILLINOIS AND THE OPPOSING GREAT LAKES STATES WOULD BE
WITHOUT PREJUDICE TO ANY OF THE PARTIES TO THE ABOVE CAPTIONED CAUSES,
AND WOULD BE SOLELY FOR THE PURPOSE OF TRYING BY THIS MEANS TO REMOVE
WHATEVER FLOCCULENT ACTIVE SLUDGE DEPOSITS AND SEWAGE SLUDGE MAY HAVE
ACCUMULATED IN THE BRANDON ROAD POOL BY REASON OF THE INTRODUCTION OF
UNTREATED SEWAGE AND SLUDGE FROM TREATED SEWAGE.  NOTHING IN THIS
STIPULATION SHALL BE CONSTRUED AS AN ADMISSION BY THE OPPOSING GREAT
LAKES STATES AS IN ANY MANNER OR FORM WHATSOEVER WAIVING, ABANDONING OR
PREJUDICING ANY OF THE POSITIONS OF THE OPPOSING GREAT LAKES STATES
HEREINBEFORE STATED OR AT ANY TIME TAKEN IN THESE CAUSES OR IN THE
COURSE OF THE PRESENT HEARINGS; AND SAID OPPOSING GREAT LAKES STATES
HEREBY AFFIRM AND AGAIN ADVANCE EACH AND EVERY CONTENTION AND
ALLEGATION SET FORTH IN THE RETURN OF WISCONSIN, MINNESOTA, OHIO,
PENNSYLVANIA, MICHIGAN AND NEW YORK AS RESPONDENTS TO RULE TO SHOW
CAUSE ISSUED ON APPLICATION OF THE STATE OF ILLINOIS, AS PETITIONER,
FOR A TEMPORARY MODIFICATION OF PARAGRAPH 3 OF THE DECREE OF APRIL 21,
1930, FILED IN THIS COURT ON FEBRUARY 26, 1940; AND SAID OPPOSING GREAT
LAKES STATES AGAIN DENY EACH AND EVERY ALLEGATION CONTAINED IN THE
PETITION OF THE STATE OF ILLINOIS HEREIN, FILED IN THIS COURT ON
JANUARY 15, 1940, AND DENY THE POSITIONS TAKEN DURING THE COURSE OF THE
PRESENT HEARINGS BY ILLINOIS, AND, 

WHEREAS, IT IS FURTHER UNDERSTOOD THAT THE STATE OF ILLINOIS DOES NOT
BY REASON OF THIS STIPULATION OR MOTION OR TEST IN ANY MANNER OR FORM
WAIVE, ABANDON OR PREJUDICE ANY OF ITS POSITIONS AT ANY TIME STATED OR
TAKEN IN THIS PROCEEDING, AND THE STATE OF ILLINOIS HEREBY AFFIRMS AND
AGAIN ADVANCES EACH AND EVERY CONTENTION AND ALLEGATION SET FORTH IN
ITS PETITION, AND IT IS NOT TO BE CONSTRUED AS AN ADMISSION BY THE
STATE OF ILLINOIS THAT SUCH TEMPORARY INCREASE IN DIVERSION OF WATER
FOR A PERIOD OF TEN DAYS WILL EITHER REMEDY OR AMELIORATE EFFECTIVELY
THE CONDITIONS IN BRANDON POOL WHICH ILLINOIS CONTENDS HAVE CONSTITUTED
THE ALLEGED MENACE TO HEALTH COMPLAINED OF, AND, 

WHEREAS, IT IS THE POSITION OF THE OPPOSING GREAT LAKES STATES THAT
ANY ACCUMULATION OF SEWAGE WASTES AND SLUDGE IN THE BRANDON ROAD POOL
SINCE THE DECREE OF THE UNITED STATES SUPREME COURT WENT INTO FULL
OPERATION ON DECEMBER 31, 1938, HAS NOT CREATED ANY NUISANCE CONDITION
EITHER FROM THE STANDPOINT OF PUBLIC HEALTH, NAVIGATION OR IN ANY OTHER
WAY, AND THAT SUCH TEMPORARY INCREASE IN DIVERSION IS IN NO WISE
NECESSARY TO PROTECT THE INTERESTS OF PUBLIC HEALTH OR NAVIGATION, AND 

WHEREAS, THE OPPOSING GREAT LAKES STATES ARE NEVERTHELESS, IN A
SPIRIT OF CONCILIATION AND ACCOMMODATION, WILLING TO ENTER INTO THE
AGREEMENT SUGGESTED BY THE SPECIAL MASTER UPON THE EXPRESS CONDITION -
(A) THAT SUCH AGREEMENT SHALL NOT BE CONSTRUED AS IN ANY WAY WAIVING,
ABANDONING OR PREJUDICING ANY OF THE POSITIONS OF THE OPPOSING GREAT
LAKES STATES HEREINBEFORE STATED OR AT ANY TIME TAKEN IN THESE CAUSES
OR IN THE COURSE OF THE PRESENT HEARING; (B) THAT NOTHING IN THIS
STIPULATION NOR THE FACT OF THE CONSENT OF THE OPPOSING GREAT LAKES
STATES TO SUCH TEMPORARY EXPEDIENT SHALL BE CONSTRUED AS AN ADMISSION
OR EVIDENCE OF ANY CLAIM OF THE STATE OF ILLINOIS OR THE SANITARY
DISTRICT OF CHICAGO IN THE PREMISES AND SHALL NOT BE USED AS A
PRECEDENT FOR ANY FUTURE REQUEST FOR ANY ADDITIONAL TEMPORARY DIVERSION
OVER AND ABOVE THE AMOUNTS FIXED BY THE DECREE OF APRIL 21, 1930. 

NOW, THEREFORE, IT IS  STIPULATED AND AGREED BY AND BETWEEN THE
PARTIES TO THE ABOVE CAPTIONED CAUSES, BY THEIR RESPECTIVE COUNSEL,
THAT A TEMPORARY INCREASE IN DIVERSION FROM 1500 CUBIC SECOND FEET PLUS
DOMESTIC PUMPAGE NOW AUTHORIZED BY THE UNITED STATES SUPREME COURT
DECREE OF APRIL 21, 1930, TO 10,000 CUBIC SECOND FEET PLUS DOMESTIC
PUMPAGE OF WATER FROM LAKE MICHIGAN THROUGH THE CHICAGO SANITARY CANAL
MAY BE AUTHORIZED FOR ONE CONTINUOUS PERIOD OF TEN DAYS FOR THE PUPOSE
OF TRYING TO REMOVE WHATEVER FLOCCULENT ACTIVE SLUDGE DEPOSITS AND
SEWAGE SLUDGE MAY HAVE ACCUMULATED IN THE SAID BRANDON ROAD POOL.  IT
IS UNDERSTOOD THAT A RECORD OF SAID OPERATION WILL BE MADE AND THE
RESULTS THEREOF INCORPORATED IN THE RECORD OF THE HEARING. 

IT IS FURTHER STIPULATED AND AGREED THAT ANY SUCH AGREEMENT WILL BE
WITHOUT PREJUDICE TO ANY PARTY TO THE ABOVE CAPTIONED CAUSES AND THAT
SUCH AGREEMENT IS NOT TO BE USED AS A PRECEDENT FOR ANY FUTURE REQUEST
FOR ADDITIONAL TEMPORARY DIVERSION IN EXCESS OF THE AMOUNTS FIXED BY
THE UNITED STATES SUPREME COURT DECREE OF APRIL 21, 1930. 

IT IS FURTHER STIPULATED AND AGREED THAT A MOTION IN ACCORDANCE WITH
THIS STIPULATION MAY BE FILED WITH THE UNITED STATES SUPREME COURT AND
THAT AN ORDER IN ACCORDANCE WITH THE TERMS OF THIS STIPULATION MAY
THEREUPON BE ENTERED BY SAID COURT WITHOUT NOTICE TO ANY OF SAID
PARTIES. 

STATE OF ILLINOIS, 

BY JOHN E. CASSIDY, 

ATTORNEY GENERAL OF THE STATE OF ILLINOIS. 

STATES OF WISCONSIN, MINNESOTA, OHIO, PENNSYLVANIA, MICHIGAN, AND NEW
YORK, 

BY HERBERT H. NAUJOKS, 

SPECIAL ASSISTANT TO ATTORNEYS GENERAL. 

DATED THIS 31ST DAY OF OCTOBER, 1940." 

IT IS ORDERED THAT THE SANITARY DISTRICT OF CHICAGO BE AND IT HEREBY
IS AUTHORIZED TO INCREASE ITS DIVERSION OF WATER FROM THE GREAT LAKES
ST. LAWRENCE SYSTEM OR WATERSHED THROUGH THE CHICAGO DRAINAGE CANAL
FROM 1,500 CUBIC FEET PER SECOND IN ADDITION TO DOMESTIC PUMPAGE TO
10,000 CUBIC FEET PER SECOND IN ADDITION TO DOMESTIC PUMPAGE FOR ONE
CONTINUOUS PERIOD OF TEN DAYS FROM AN APPROPRIATE HOUR ON DECEMBER 2,
1940, TO THE SAME HOUR ON DECEMBER 12, 1940, AFTER WHICH PERIOD ALL THE
PROVISIONS OF THE DECREE ENTERED APRIL 21, 1930, 281 U.S. 696, SHALL BE
AND REMAIN IN FULL FORCE AND EFFECT UNTIL FURTHER ORDER OF THIS COURT. 

..END :












HELVERING V. HORST, 311 U.S. 112 


NO. 27.  ARGUED OCTOBER 25, 1940.  - DECIDED NOVEMBER 25, 1940.  - 107
F.2D 906, REVERSED. 


1.  WHERE, IN 1934 AND 1935, AN OWNER OF NEGOTIABLE BONDS, WHO
REPORTED INCOME ON THE CASH RECEIPTS BASIS, DETACHED FROM THE BONDS
NEGOTIABLE INTEREST COUPONS BEFORE THEIR DUE DATE AND DELIVERED THEM AS
A GIFT TO HIS SON, WHO IN THE SAME YEAR COLLECTED THEM AT MATURITY,
HELD THAT, UNDER SEC. 22 OF THE REVENUE ACT OF 1934, AND IN THE YEAR
THAT THE INTEREST PAYMENTS WERE MADE, THERE WAS A REALIZATION OF
INCOME, IN THE AMOUNT OF SUCH PAYMENTS, TAXABLE TO THE DONOR.  P. 117. 

2.  THE DOMINANT PURPOSE OF THE INCOME TAX LAWS IS THE TAXATION OF
INCOME TO THOSE WHO EARN OR OTHERWISE CREATE THE RIGHT TO RECEIVE IT
AND WHO ENJOY THE BENEFIT OF IT WHEN PAID.  P. 119. 

3.  THE TAX LAID BY THE 1934 REVENUE ACT UPON INCOME "DERIVED FROM
...  WAGES OR COMPENSATION FOR PERSONAL SERVICE, OF WHATEVER KIND AND
IN WHATEVER FORM PAID  ...  ; ALSO FROM INTEREST  ..."  CAN NOT FAIRLY
BE INTERPRETED AS NOT APPLYING TO INCOME DERIVED FROM INTEREST OR
COMPENSATION WHEN HE WHO IS ENTITLED TO RECEIVE IT MAKES USE OF HIS
POWER TO DISPOSE OF IT IN PROCURING SATISFACTIONS WHICH HE WOULD
OTHERWISE PROCURE ONLY BY THE USE OF THE MONEY WHEN RECEIVED.  P. 119. 

4.  THIS CASE DISTINGUISHED FROM BLAIR V. COMMISSIONER, 300 U.S. 5;
AND COMPARED WITH LUCAS V. EARL, 281 U.S. 111, AND BURNET V. LEININGER,
285 U.S. 136.  PP. 118-120. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. HORST. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 309 U.S. 650, TO REVIEW THE REVERSAL OF AN ORDER OF THE
BOARD OF TAX APPEALS, 39 B.T.A. 757, SUSTAINING A DETERMINATION OF A
DEFICIENCY IN INCOME TAX. 

MR. ARNOLD RAUM, WITH WHOM SOLICITOR GENERAL BIDDLE, ASSISTANT
ATTORNEY GENERAL CLARK, AND MESSRS.  SEWALL KEY AND MORTON K.
ROTHSCHILD WERE ON THE BRIEF, FOR PETITIONER. 

MR. SELDEN BACON, WITH WHOM MR. HARRY H. WIGGINS WAS ON THE BRIEF,
FOR RESPONDENT. 

THE COUPONS WERE INDEPENDENT NEGOTIABLE INSTRUMENTS COMPLETE IN
THEMSELVES, AND BY THE GIFT BECAME THE ABSOLUTE PROPERTY OF THE DONEE
FREE FROM ANY CONTROL BY THE DONOR BY REASON OF HIS RETENTION OF THE
BONDS FROM WHICH THEY HAD BEEN DETACHED.  CLARK V. IOWA CITY, 20 WALL. 
583; HARTMAN V. GREENHOW, 102 U.S. 672; KOSHKONONG V. BURTON, 104 U.S.
668; CLOKEY V. EVANSVILLE & T.H.R. CO., 16 APP. DIV. 304; PRATT V.
HIGGINSON, 230 MASS. 256. 

THE TWO CASES ON THIS POINT IN THE CIRCUIT COURTS OF APPEALS AGREE
THAT COUPONS SO GIVEN AWAY BEFORE THEIR MATURITY ARE NOT INCOME OF THE
DONOR, BUT OF THE DONEE.  ROSENWALD V. COMMISSIONER, 33 F.2D 423; HORST
V. COMMISSIONER, 107 F.2D 906.  SEE ALSO, MATCHETTE V. HELVERING, 81
F.2D 73; WILLISTON V. COMMISSIONER, 2 MASS. A.T.B. 663; SCHOONMAKER V.
COMMISSIONER, 39 B.T.A. 496. 

THE CASE AT BAR IS NOT GOVERNED BY HELVERING V. CLIFFORD, 309 U.S.
331, BUT BY BLAIR V. COMMISSIONER, 300 U.S. 5, 11-14.  IN THE CLIFFORD
CASE THERE WAS NO THING SEPARATED AND COMPLETELY TRANSFERRED.  WHAT WAS
TRANSFERRED WAS NET INCOME FROM A TRUST FUND OVER WHICH CLIFFORD
RETAINED ABSOLUTE CONTROL.  HE MIGHT EASILY, UNDER THE EXTENSIVE POWERS
RESERVED TO HIMSELF, INVEST IT IN SUCH A WAY THAT THERE MIGHT BE NO NET
INCOME THEREFROM DURING THE SPECIFIED PERIOD.  THAT WAS LEFT TO HIS OWN
ABSOLUTE DISCRETION.  THAT IS A VERY DIFFERENT THING FROM AN ABSOLUTE
TRANSFER OF A SPECIFIC COUPON.  MOREOVER, CLIFFORD ALSO RETAINED
CONTROL EVEN OVER WHATEVER NET INCOME THERE MIGHT BE, UNDER THE
STRIKING PROVISION THAT HE WAS TO PAY OVER TO HIS WIFE DURING THE
CONTINUANCE OF THE TRUST, THE WHOLE OR SUCH PART OF THE NET INCOME AS
HE "IN HIS ABSOLUTE DISCRETION" MIGHT DETERMINE.  THAT PROVISION
PRACTICALLY NULLIFIED ANY ABSOLUTE RIGHT ON HER PART TO GET THE
INCOME.  RAYMOND V. TIFFANY, 59 MISC. 283.  ANY INCOME PAID HER BECAME
A COMPLETED GIFT ONLY WHEN CLIFFORD EXERCISED HIS DISCRETION IN HER
FAVOR, AFTER THE INCOME HAD BEEN COLLECTED BY HIM. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION FOR DECISION IS WHETHER THE GIFT, DURING THE
DONOR'S TAXABLE YEAR, OF INTEREST COUPONS DETACHED FROM THE BONDS,
DELIVERED TO THE DONEE AND LATER IN THE YEAR PAID AT MATURITY, IS THE
REALIZATION OF INCOME TAXABLE TO THE DONOR. 

IN 1934 AND 1935 RESPONDENT, THE OWNER OF NEGOTIABLE BONDS, DETACHED
FROM THEM NEGOTIABLE INTEREST COUPONS SHORTLY BEFORE THEIR DUE DATE AND
DELIVERED THEM AS A GIFT TO HIS SON WHO IN THE SAME YEAR COLLECTED THEM
AT MATURITY.  THE COMMISSIONER RULED THAT UNDER THE APPLICABLE SEC. 22
OF THE REVENUE ACT OF 1934, 48 STAT. 680, 686, THE INTEREST PAYMENTS
WERE TAXABLE, IN THE YEARS WHEN PAID, TO THE RESPONDENT DONOR WHO
REPORTED HIS INCOME ON THE CASH RECEIPTS BASIS.  THE CIRCUIT COURT OF
APPEALS REVERSED THE ORDER OF THE BOARD OF TAX APPEALS SUSTAINING THE
TAX.  107 F.2D 906; 39 B.T.A. 757.  WE GRANTED CERTIORARI, 309 U.S.
650, BECAUSE OF THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF
THE REVENUE LAWS AND BECAUSE OF AN ASSERTED CONFLICT IN PRINCIPLE OF
THE DECISION BELOW WITH THAT OF LUCAS V. EARL, 281 U.S. 111, AND WITH
THAT OF DECISIONS BY OTHER CIRCUIT COURTS OF APPEALS.  SEE BISHOP V.
COMMISSIONER, 54 F.2D 298; DICKEY V. BURNET, 56 F.2D 917, 921; VAN
METER V. COMMISSIONER, 61 F.2D 817. 

THE COURT BELOW THOUGHT THAT AS THE CONSIDERATION FOR THE COUPONS HAD
PASSED TO THE OBLIGOR, THE DONOR HAD, BY THE GIFT, PARTED WITH ALL
CONTROL OVER THEM AND THEIR PAYMENT, AND FOR THAT REASON THE CASE WAS
DISTINGUISHABLE FROM LUCAS V. EARL, SUPRA, AND BURNET V. LEININGER, 285
U.S. 136, WHERE THE ASSIGNMENT OF COMPENSATION FOR SERVICES HAD
PRECEDED THE RENDITION OF THE SERVICES, AND WHERE THE INCOME WAS HELD
TAXABLE TO THE DONOR. 

THE HOLDER OF A COUPON BOND IS THE OWNER OF TWO INDEPENDENT AND
SEPARABLE KINDS OF RIGHT.  ONE IS THE RIGHT TO DEMAND AND RECEIVE AT
MATURITY THE PRINCIPAL AMOUNT OF THE BOND REPRESENTING CAPITAL
INVESTMENT.  THE OTHER IS THE RIGHT TO DEMAND AND RECEIVE INTERIM
PAYMENTS OF INTEREST ON THE INVESTMENT IN THE AMOUNTS AND ON THE DATES
SPECIFIED BY THE COUPONS.  TOGETHER THEY ARE AN OBLIGATION TO PAY
PRINCIPAL AND INTEREST GIVEN IN EXCHANGE FOR MONEY OR PROPERTY WHICH
WAS PRESUMABLY THE CONSIDERATION FOR THE OBLIGATION OF THE BOND.  HERE
RESPONDENT, AS OWNER OF THE BONDS, HAD ACQUIRED THE LEGAL RIGHT TO
DEMAND PAYMENT AT MATURITY OF THE INTEREST SPECIFIED BY THE COUPONS AND
THE POWER TO COMMAND ITS PAYMENT TO OTHERS, WHICH CONSTITUTED AN
ECONOMIC GAIN TO HIM. 

ADMITTEDLY NOT ALL ECONOMIC GAIN OF THE TAXPAYER IS TAXABLE INCOME. 
FROM THE BEGINNING THE REVENUE LAWS HAVE BEEN INTERPRETED AS DEFINING
"REALIZATION" OF INCOME AS THE TAXABLE EVENT, RATHER THAN THE
ACQUISITION OF THE RIGHT TO RECEIVE IT.  AND "REALIZATION" IS NOT
DEEMED TO OCCUR UNTIL THE INCOME IS PAID.  BUT THE DECISIONS AND
REGULATIONS HAVE CONSISTENTLY RECOGNIZED THAT RECEIPT IN CASH OR
PROPERTY IS NOT THE ONLY CHARACTERISTIC OF REALIZATION OF INCOME TO A
TAXPAYER ON THE CASH RECEIPTS BASIS.  WHERE THE TAXPAYER DOES NOT
RECEIVE PAYMENT OF INCOME IN MONEY OR PROPERTY REALIZATION MAY OCCUR
WHEN THE LAST STEP IS TAKEN BY WHICH HE OBTAINS THE FRUITION OF THE
ECONOMIC GAIN WHICH HAS ALREADY ACCRUED TO HIM.  OLD COLONY TRUST CO.
V. COMMISSIONER, 279 U.S. 716; CORLISS V. BOWERS, 281 U.S. 376, 378. 
CF. BURNET V. WELLS, 289 U.S. 670. 

IN THE ORDINARY CASE THE TAXPAYER WHO ACQUIRES THE RIGHT TO RECEIVE
INCOME IS TAXED WHEN HE RECEIVES IT, REGARDLESS OF THE TIME WHEN HIS
RIGHT TO RECEIVE PAYMENT ACCRUED.  BUT THE RULE THAT INCOME IS NOT
TAXABLE UNTIL REALIZED HAS NEVER BEEN TAKEN TO MEAN THAT THE TAXPAYER,
EVEN ON THE CASH RECEIPTS BASIS, WHO HAS FULLY ENJOYED THE BENEFIT OF
THE ECONOMIC GAIN REPRESENTED BY HIS RIGHT TO RECEIVE INCOME, CAN
ESCAPE TAXATION BECAUSE HE HAS NOT HIMSELF RECEIVED PAYMENT OF IT FROM
HIS OBLIGOR.  THE RULE, FOUNDED ON ADMINISTRATIVE CONVENIENCE, IS ONLY
ONE OF POSTPONEMENT OF THE TAX TO THE FINAL EVENT OF ENJOYMENT OF THE
INCOME, USUALLY THE RECEIPT OF IT BY THE TAXPAYER, AND NOT ONE OF
EXEMPTION FROM TAXATION WHERE THE ENJOYMENT IS CONSUMMATED BY SOME
EVENT OTHER THAN THE TAXPAYER'S PERSONAL RECEIPT OF MONEY OR PROPERTY. 
CF. ALUMINUM CASTINGS CO. V. ROUTZAHN, 282 U.S. 92, 98.  THIS MAY OCCUR
WHEN HE HAS MADE SUCH USE OR DISPOSITION OF HIS POWER TO RECEIVE OR
CONTROL THE INCOME AS TO PROCURE IN ITS PLACE OTHER SATISFACTIONS WHICH
ARE OF ECONOMIC WORTH.  THE QUESTION HERE IS, WHETHER BECAUSE ONE WHO
IN FACT RECEIVES PAYMENT FOR SERVICES OR INTEREST PAYMENTS IS TAXABLE
ONLY ON HIS RECEIPT OF THE PAYMENTS, HE CAN ESCAPE ALL TAX BY GIVING
AWAY HIS RIGHT TO INCOME IN ADVANCE OF PAYMENT.  IF THE TAXPAYER
PROCURES PAYMENT DIRECTLY TO HIS CREDITORS OF THE ITEMS OF INTEREST OR
EARNINGS DUE HIM, SEE OLD COLONY TRUST CO. V. COMMISSIONER, SUPRA;
BOWERS V. KERBAUGH-EMPIRE CO., 271 U.S. 170; UNITED STATES V. KIRBY
LUMBER CO., 284 U.S. 1, OR IF HE SETS UP A REVOCABLE TRUST WITH INCOME
PAYABLE TO THE OBJECTS OF HIS BOUNTY, SECS. 166, 167, REVENUE ACT OF
1934, CORLISS V. BOWERS, SUPRA; CF. DICKEY V. BURNET, 56 F.2D 917, 921,
HE DOES NOT ESCAPE TAXATION BECAUSE HE DID NOT ACTUALLY RECEIVE THE
MONEY.  CF. DOUGLAS V. WILLCUTS, 296 U.S. 1; HELVERING V. CLIFFORD, 309
U.S. 331. 

UNDERLYING THE REASONING IN THESE CASES IS THE THOUGHT THAT INCOME IS
"REALIZED" BY THE ASSIGNOR BECAUSE HE, WHO OWNS OR CONTROLS THE SOURCE
OF THE INCOME, ALSO CONTROLS THE DISPOSITION OF THAT WHICH HE COULD
HAVE RECEIVED HIMSELF AND DIVERTS THE PAYMENT FROM HIMSELF TO OTHERS AS
THE MEANS OF PROCURING THE SATISFACTION OF HIS WANTS.  THE TAXPAYER HAS
EQUALLY ENJOYED THE FRUITS OF HIS LABOR OR INVESTMENT AND OBTAINED THE
SATISFACTION OF HIS DESIRES WHETHER HE COLLECTS AND USES THE INCOME TO
PROCURE THOSE SATISFACTIONS, OR WHETHER HE DISPOSES OF HIS RIGHT TO
COLLECT IT AS THE MEANS OF PROCURING THEM.  CF. BURNET V. WELLS,
SUPRA. 

ALTHOUGH THE DONOR HERE, BY THE TRANSFER OF THE COUPONS, HAS
PRECLUDED ANY POSSIBILITY OF HIS COLLECTING THEM HIMSELF, HE HAS
NEVERTHELESS, BY HIS ACT, PROCURED PAYMENT OF THE INTEREST AS A
VALUABLE GIFT TO A MEMBER OF HIS FAMILY.  SUCH A USE OF HIS ECONOMIC
GAIN, THE RIGHT TO RECEIVE INCOME, TO PROCURE A SATISFACTION WHICH CAN
BE OBTAINED ONLY BY THE EXPENDITURE OF MONEY OR PROPERTY, WOULD SEEM TO
BE THE ENJOYMENT OF THE INCOME WHETHER THE SATISFACTION IS THE PURCHASE
OF GOODS AT THE CORNER GROCERY, THE PAYMENT OF HIS DEBT THERE, OR SUCH
NONMATERIAL SATISFACTIONS AS MAY RESULT FROM THE PAYMENT OF A CAMPAIGN
OR COMMUNITY CHEST CONTRIBUTION, OR A GIFT TO HIS FAVORITE SON.  EVEN
THOUGH HE NEVER RECEIVES THE MONEY, HE DERIVES MONEY'S WORTH FROM THE
DISPOSITION OF THE COUPONS WHICH HE HAS USED AS MONEY OR MONEY'S WORTH
IN THE PROCURING OF A SATISFACTION WHICH IS PROCURABLE ONLY BY THE
EXPENDITURE OF MONEY OR MONEY'S WORTH.  THE ENJOYMENT OF THE ECONOMIC
BENEFIT ACCRUING TO HIM BY VIRTUE OF HIS ACQUISITION OF THE COUPONS IS
REALIZED AS COMPLETELY AS IT WOULD HAVE BEEN IF HE HAD COLLECTED THE
INTEREST IN DOLLARS AND EXPENDED THEM FOR ANY OF THE PURPOSES NAMED. 
BURNET V. WELLS, SUPRA. 

IN A REAL SENSE HE HAS ENJOYED COMPENSATION FOR MONEY LOANED OR
SERVICES RENDERED, AND NOT ANY THE LESS SO BECAUSE IT IS HIS ONLY
REWARD FOR THEM.  TO SAY THAT ONE WHO HAS MADE A GIFT THUS DERIVED FROM
INTEREST OR EARNINGS PAID TO HIS DONEE HAS NEVER ENJOYED OR REALIZED
THE FRUITS OF HIS INVESTMENT OR LABOR, BECAUSE HE HAS ASSIGNED THEM
INSTEAD OF COLLECTING THEM HIMSELF AND THEN PAYING THEM OVER TO THE
DONEE, IS TO AFFRONT COMMON UNDERSTANDING AND TO DENY THE FACTS OF
COMMON EXPERIENCE.  COMMON UNDERSTANDING AND EXPERIENCE ARE THE
TOUCHSTONES FOR THE INTERPRETATION OF THE REVENUE LAWS. 

THE POWER TO DISPOSE OF INCOME IS THE EQUIVALENT OF OWNERSHIP OF IT.
THE EXERCISE OF THAT POWER TO PROCURE THE PAYMENT OF INCOME TO ANOTHER
IS THE ENJOYMENT, AND HENCE THE REALIZATION, OF THE INCOME BY HIM WHO
EXERCISES IT.  WE HAVE HAD NO DIFFICULTY IN APPLYING THAT PROPOSITION
WHERE THE ASSIGNMENT PRECEDED THE RENDITION OF THE SERVICES, LUCAS V.
EARL, SUPRA; BURNET V. LEININGER, SUPRA, FOR IT WAS RECOGNIZED IN THE
LEININGER CASE THAT IN SUCH A CASE THE RENDITION OF THE SERVICE BY THE
ASSIGNOR WAS THE MEANS BY WHICH THE INCOME WAS CONTROLLED BY THE DONOR
AND OF MAKING HIS ASSIGNMENT EFFECTIVE.  BUT IT IS THE ASSIGNMENT BY
WHICH THE DISPOSITION OF INCOME IS CONTROLLED WHEN THE SERVICE PRECEDES
THE ASSIGNMENT, AND IN BOTH CASES IT IS THE EXERCISE OF THE POWER OF
DISPOSITION OF THE INTEREST OR COMPENSATION, WITH THE RESULTING PAYMENT
TO THE DONEE, WHICH IS THE ENJOYMENT BY THE DONOR OF INCOME DERIVED
FROM THEM. 

THIS WAS EMPHASIZED IN BLAIR V. COMMISSIONER, 300 U.S. 5, ON WHICH
RESPONDENT RELIES, WHERE THE DISTINCTION WAS TAKEN BETWEEN A GIFT OF
INCOME DERIVED FROM AN OBLIGATION TO PAY COMPENSATION AND A GIFT OF
INCOMEPRODUCING PROPERTY.  IN THE CIRCUMSTANCES OF THAT CASE, THE RIGHT
TO INCOME FROM THE TRUST PROPERTY WAS THOUGHT TO BE SO IDENTIFIED WITH
THE EQUITABLE OWNERSHIP OF THE PROPERTY, FROM WHICH ALONE THE
BENEFICIARY DERIVED HIS RIGHT TO RECEIVE THE INCOME AND HIS POWER TO
COMMAND DISPOSITION OF IT, THAT A GIFT OF THE INCOME BY THE BENEFICIARY
BECAME EFFECTIVE ONLY AS A GIFT OF HIS OWNERSHIP OF THE PROPERTY
PRODUCING IT.  SINCE THE GIFT WAS DEEMED TO BE A GIFT OF THE PROPERTY,
THE INCOME FROM IT WAS HELD TO BE THE INCOME OF THE OWNER OF THE
PROPERTY, WHO WAS THE DONEE, NOT THE DONOR - A REFINEMENT WHICH WAS
UNNECESSARY IF RESPONDENT'S CONTENTION HERE IS RIGHT, BUT ONE CLEARLY
INAPPLICABLE TO GIFTS OF INTEREST OR WAGES.  UNLIKE INCOME THUS DERIVED
FROM AN OBLIGATION TO PAY INTEREST OR COMPENSATION, THE INCOME OF THE
TRUST WAS REGARDED AS NO MORE THE INCOME OF THE DONOR THAN WOULD BE THE
RENT FROM A LEASE OR A CROP RAISED ON A FARM AFTER THE LEASEHOLD OR THE
FARM HAD BEEN GIVEN AWAY.  BLAIR V. COMMISSIONER, SUPRA, 12, 13 AND
CASES CITED.  SEE ALSO REINECKE V. SMITH, 289 U.S. 172, 177.  WE HAVE
HELD WITHOUT DEVIATION THAT WHERE THE DONOR RETAINS CONTROL OF THE
TRUST PROPERTY THE INCOME IS TAXABLE TO HIM ALTHOUGH PAID TO THE
DONEE.  CORLISS V. BOWERS, SUPRA.  CF. HELVERING V. CLIFFORD, SUPRA. 

THE DOMINANT PURPOSE OF THE REVENUE LAWS IS THE TAXATION OF INCOME TO
THOSE WHO EARN OR OTHERWISE CREATE THE RIGHT TO RECEIVE IT AND ENJOY
THE BENEFIT OF IT WHEN PAID.  SEE, CORLISS V. BOWERS, SUPRA, 378;
BURNET V. GUGGENHEIM, 288 U.S. 280, 283.  THE TAX LAID BY THE 1934
REVENUE ACT UPON INCOME "DERIVED FROM  ...  WAGES, OR COMPENSATION FOR
PERSONAL SERVICE, OF WHATEVER KIND AND IN WHATEVER FORM PAID,  ...  ;
ALSO FROM INTEREST  ..."  THEREFORE CANNOT FAIRLY BE INTERPRETED AS NOT
APPLYING TO INCOME DERIVED FROM INTEREST OR COMPENSATION WHEN HE WHO IS
ENTITLED TO RECEIVE IT MAKES USE OF HIS POWER TO DISPOSE OF IT IN
PROCURING SATISFACTIONS WHICH HE WOULD OTHERWISE PROCURE ONLY BY THE
USE OF THE MONEY WHEN RECEIVED.    IT IS THE STATUTE WHICH TAXES THE
INCOME TO THE DONOR ALTHOUGH PAID TO HIS DONEE.  LUCAS V. EARL, SUPRA;
BURNET V. LEININGER, SUPRA.  TRUE, IN THOSE CASES THE SERVICE WHICH
CREATED THE RIGHT TO INCOME FOLLOWED THE ASSIGNMENT, AND IT WAS
ARGUABLE THAT IN POINT OF LEGAL THEORY THE RIGHT TO THE COMPENSATION
VESTED INSTANTANEOUSLY IN THE ASSIGNOR WHEN PAID, ALTHOUGH HE NEVER
RECEIVED IT; WHILE HERE THE RIGHT OF THE ASSIGNOR TO RECEIVE THE INCOME
ANTEDATED THE ASSIGNMENT WHICH TRANSFERRED THE RIGHT AND THUS PRECLUDED
SUCH AN INSTANTANEOUS VESTING.  BUT THE STATUTE AFFORDS NO BASIS FOR
SUCH "ATTENUATED SUBTLETIES."  THE DISTINCTION WAS EXPLICITLY REJECTED
AS THE BASIS OF DECISION IN LUCAS V. EARL.  IT SHOULD BE REJECTED HERE;
FOR NO MORE THAN IN THE EARL CASE CAN THE PURPOSE OF THE STATUTE TO TAX
THE INCOME TO HIM WHO EARNS, OR CREATES AND ENJOYS IT BE ESCAPED BY
"ANTICIPATORY ARRANGEMENTS HOWEVER SKILFULLY DEVISED" TO PREVENT THE
INCOME FROM VESTING EVEN FOR A SECOND IN THE DONOR. 

NOR IS IT PERCEIVED THAT THERE IS ANY ADEQUATE BASIS FOR
DISTINGUISHING BETWEEN THE GIFT OF INTEREST COUPONS HERE AND A GIFT OF
SALARY OR COMMISSIONS.  THE OWNER OF A NEGOTIABLE BOND AND OF THE
INVESTMENT WHICH IT REPRESENTS, IF NOT THE LENDER, STANDS IN THE PLACE
OF THE LENDER.  WHEN, BY THE GIFT OF THE COUPONS, HE HAS SEPARATED HIS
RIGHT TO INTEREST PAYMENTS FROM HIS INVESTMENT AND PROCURED THE PAYMENT
OF THE INTEREST TO HIS DONEE, HE HAS ENJOYED THE ECONOMIC BENEFITS OF
THE INCOME IN THE SAME MANNER AND TO THE SAME EXTENT AS THOUGH THE
TRANSFER WERE OF EARNINGS, AND IN BOTH CASES THE IMPORT OF THE STATUTE
IS THAT THE FRUIT IS NOT TO BE ATTRIBUTED TO A DIFFERENT TREE FROM THAT
ON WHICH IT GREW.  SEE LUCAS V. EARL, SUPRA, 115.  REVERSED. 

THE SEPARATE OPINION OF MR. JUSTICE MCREYNOLDS. 

THE FACTS WERE STIPULATED.  IN THE OPINION OF THE COURT BELOW THE
ISSUES ARE THUS ADEQUATELY STATED - 

"THE PETITIONER OWNED A NUMBER OF COUPON BONDS.  THE COUPONS
REPRESENTED THE INTEREST ON THE BONDS AND WERE PAYABLE TO BEARER.  IN
1934 HE DETACHED UNMATURED COUPONS OF FACE VALUE OF $25,182.50 AND
TRANSFERRED THEM BY MANUAL DELIVERY TO HIS SON AS A GIFT.  THE COUPONS
MATURED LATER ON IN THE SAME YEAR, AND THE SON COLLECTED THE FACE
AMOUNT, $25,182.50, AS HIS OWN PROPERTY.  THERE WAS A SIMILAR
TRANSACTION IN 1935.  THE PETITIONER KEPT HIS BOOKS ON A CASH BASIS. 
HE DID NOT INCLUDE ANY PART OF THE MONEYS COLLECTED ON THE COUPONS IN
HIS INCOME TAX RETURNS FOR THESE TWO YEARS.  THE SON INCLUDED THEM IN
HIS RETURNS.  THE COMMISSIONER ADDED THE MONEYS COLLECTED ON THE
COUPONS TO THE PETITIONER'S TAXABLE INCOME AND DETERMINED A TAX
DEFICIENCY FOR EACH YEAR.  THE BOARD OF TAX APPEALS, THREE MEMBERS
DISSENTING, SUSTAINED THE COMMISSIONER, HOLDING THAT THE AMOUNTS
COLLECTED ON THE COUPONS WERE TAXABLE AS INCOME TO THE PETITIONER." 

THE DECISION OF THE BOARD OF TAX APPEALS WAS REVERSED AND PROPERLY
SO, I THINK. 

THE UNMATURED COUPONS GIVEN TO THE SON WERE INDEPENDENT NEGOTIABLE
INSTRUMENTS, COMPLETE IN THEMSELVES.  THROUGH THE GIFT THEY BECAME AT
ONCE THE ABSOLUTE PROPERTY OF THE DONEE, FREE FROM THE DONOR'S CONTROL
AND IN NO WAY DEPENDENT UPON OWNERSHIP OF THE BONDS.  NO QUESTION OF
ACTUAL FRAUD OR PURPOSE TO DEFRAUD THE REVENUE IS PRESENTED. 

NEITHER LUCAS V. EARL, 281 U.S. 111, NOR BURNET V. LEININGER, 285
U.S. 136, SUPPORT PETITIONER'S VIEW.  BLAIR V. COMMISSIONER, 300 U.S.
11, 12, SHOWS THAT NEITHER INVOLVED AN UNRESTRICTED COMPLETED TRANSFER
OF PROPERTY. 

HELVERING V. CLIFFORD, 309 U.S. 331, 335, 336, DECIDED AFTER THE
OPINION BELOW, IS MUCH RELIED UPON BY PETITIONER, BUT INVOLVED FACTS
VERY DIFFERENT FROM THOSE NOW BEFORE US.  THERE NO SEPARATE THING WAS
ABSOLUTELY TRANSFERRED AND PUT BEYOND POSSIBLE CONTROL BY THE
TRANSFERROR.  THE COURT AFFIRMED THAT CLIFFORD, BOTH CONVEYOR AND
TRUSTEE, "RETAINED THE SUBSTANCE OF FULL ENJOYMENT OF ALL THE RIGHTS
WHICH PREVIOUSLY HE HAD IN THE PROPERTY."  "IN SUBSTANCE HIS CONTROL
OVER THE CORPUS WAS IN ALL ESSENTIAL RESPECTS THE SAME AFTER THE TRUST
WAS CREATED, AS BEFORE."  "WITH THAT CONTROL IN HIS HANDS HE WOULD KEEP
DIRECT COMMAND OVER ALL THAT HE NEEDED TO REMAIN IN SUBSTANTIALLY THE
SAME FINANCIAL SITUATION AS BEFORE." 

THE GENERAL PRINCIPLES APPROVED IN BLAIR V. COMMISSIONER, 300 U.S. 5,
ARE APPLICABLE AND CONTROLLING.  THE CHALLENGED JUDGMENT SHOULD BE
AFFIRMED. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS CONCUR IN THIS OPINION. 
..END :






HELVERING V. EUBANK, 311 U.S. 122 


NO. 205.  ARGUED OCTOBER 25, 1940.  - DECIDED NOVEMBER 25, 1940.  - 110
F.2D 737, REVERSED. 


RENEWAL COMMISSIONS PAID IN 1933 BY INSURANCE COMPANIES TO THE
ASSIGNEE OF AN AGENT, PURSUANT TO ASSIGNMENTS MADE BY THE AGENT, IN
1924 AND 1928, OF SUCH COMMISSIONS AS SHOULD BECOME PAYABLE TO HIM FOR
SERVICES WHICH HAD BEEN RENDERED IN WRITING POLICIES OF INSURANCE UNDER
AGENCY CONTRACTS, HELD, UNDER SEC. 22 OF THE REVENUE ACT OF 1932,
INCOME TAXABLE IN 1933 TO THE ASSIGNOR.  FOLLOWING HELVERING V. HORST,
ANTE, P. 112.  P. 124. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. EUBANK. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 630, TO REVIEW THE REVERSAL OF AN ORDER OF THE
BOARD OF TAX APPEALS, 39 B.T.A. 583, SUSTAINING A DETERMINATION OF A
DEFICIENCY IN INCOME TAX. 

MR. ARNOLD RAUM, WITH WHOM SOLICITOR GENERAL BIDDLE, ASSISTANT
ATTORNEY GENERAL CLARK, AND MESSRS.  J. LOUIS MONARCH AND MORTON K.
ROTHSCHILD WERE ON THE BRIEF, FOR PETITIONER. 

MR. HARRY J. RUDICK, WITH WHOM MR. JOHN W. DRYE, JR. WAS ON THE
BRIEF, FOR RESPONDENT. 

THE TAXABLE STATUS OF ASSIGNED INCOME DEPENDS UPON OWNERSHIP OR
CONTROL OF THE PROPERTY WHICH PRODUCES THE INCOME.  THE RESPONDENT DID
NOT RETAIN ANY SUCH OWNERSHIP OR CONTROL, AND IS NOT TAXABLE ON THE
INCOME. 

THE CONTRACT RIGHT TO RECEIVE THE RENEWAL COMMISSIONS, EVEN THOUGH IT
MAY HAVE RESULTED FROM SERVICES OF THE ASSIGNOR, CONSTITUTED A PROPERTY
RIGHT CAPABLE OF ASSIGNMENT; AND THE DISPOSITION OF THAT RIGHT DID NOT
CORRESPOND TO AN ASSIGNMENT OF EARNINGS.  LUCAS V. EARL, 281 U.S. 111,
DISTINGUISHED. 

THE COMMISSIONS WERE NOT WHOLLY THE PRODUCT OF SERVICES PERSONALLY
RENDERED BY THE TAXPAYER.  ASSUMING, HOWEVER, THAT THE COMMISSIONS WERE
ENTIRELY THE RESULT OF RESPONDENT'S INDIVIDUAL EFFORTS, LUCAS V. EARL
DOES NOT REQUIRE THAT THEY BE TAXED TO HIM.  THAT CASE RELATED TO
EARNINGS QUA EARNINGS AND NOT TO A SEPARATELY DISPOSABLE CONTRACT RIGHT
RECEIVED AS COMPENSATION FOR SERVICES. 

THE DOCTRINE THAT EARNINGS ARE ALWAYS TAXABLE TO THE EARNER PRODUCES
ABSURD RESULTS.  SUPPOSE AN AGENT OWNING A RIGHT TO RENEWAL COMMISSIONS
BECOMES BANKRUPT AND THE RIGHT TO SUCH COMMISSIONS IS SOLD BY THE
TRUSTEE IN BANKRUPTCY TO AN OUTSIDER.  WOULD THE AGENT BE TAXABLE ON
THE COMMISSIONS PAID TO THE PURCHASER BECAUSE THEY WERE EARNED BY THE
AGENT?  SUPPOSE THE AGENT HAD SOLD HIS RIGHT TO THE FUTURE COMMISSIONS,
WOULD HE BE SUBJECT TO TAX NOT ONLY ON THE PROCEEDS OF SALE, BUT ON THE
LARGER AMOUNT OF COMMISSIONS AS WELL BECAUSE HE HAD "EARNED" THESE
COMMISSIONS?  OR SUPPOSE THE AGENT HAD DIED OWNING THE RIGHT TO RECEIVE
THE RENEWAL COMMISSIONS.  APPLICATION OF THE SWEEPING DOCTRINE
ADVOCATED BY THE GOVERNMENT WOULD REQUIRE HIM TO BE TAXED AFTER HIS
DEATH.  THIS VIEW WAS SPECIFICALLY REJECTED IN SEATTLE FIRST NATIONAL
BANK V. HENRICKSEN, 24 F.SUPP.  256, APPEAL DISMISSED, 100 F.2D 1015. 

A FUTURE COMMISSIONS CONTRACT IN THE NATURE OF A ROYALTY CONTRACT,
SUCH AS IS HERE INVOLVED - THE INCOME FROM WHICH IS IN NO WAY DEPENDENT
UPON FUTURE SERVICES OF THE ASSIGNOR, AND THE INCOME FROM WHICH HAS NOT
YET ARISEN, AND WILL ARISE, IF AT ALL, BY THE HAPPENING OF EVENTS OVER
WHICH THE ASSIGNOR HAS NO CONTROL - MAY BE ASSIGNED SO AS TO RELIEVE
THE ASSIGNOR OF THE TAX ON THE INCOME THEREFROM IN JUST THE SAME WAY
THAT THE SAME SORT OF PROPERTY ARISING FROM SOURCES OTHER THAN PERSONAL
SERVICES MAY BE ASSIGNED SO AS TO RELIEVE THE ASSIGNOR OF TAX. 

THE RIGHT TO ASSIGN A CONTRACT OF THIS CHARACTER ARISING FROM
PERSONAL SERVICES OFFERS NO MORE OPPORTUNITY FOR TAX AVOIDANCE THAN THE
RIGHT TO ASSIGN A SIMILAR CONTRACT ARISING FROM ANY OTHER SOURCE. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO HELVERING V. HORST, ANTE, P. 112, AND
PRESENTS ISSUES NOT DISTINGUISHABLE FROM THOSE IN THAT CASE. 

RESPONDENT, A GENERAL LIFE INSURANCE AGENT, AFTER THE TERMINATION OF
HIS AGENCY CONTRACTS AND SERVICES AS AGENT, MADE ASSIGNMENTS IN 1924
AND 1928 RESPECTIVELY OF RENEWAL COMMISSIONS TO BECOME PAYABLE TO HIM
FOR SERVICES WHICH HAD BEEN RENDERED IN WRITING POLICIES OF INSURANCE
UNDER TWO OF HIS AGENCY CONTRACTS.  THE COMMISSIONER ASSESSED THE
RENEWAL COMMISSIONS PAID BY THE COMPANIES TO THE ASSIGNEES IN 1933 AS
INCOME TAXABLE TO THE ASSIGNOR IN THAT YEAR UNDER THE PROVISIONS OF THE
1932 REVENUE ACT, 47 STAT. 169, SEC. 22 OF WHICH DOES NOT DIFFER IN ANY
RESPECT NOW MATERIAL FROM SEC. 22 OF THE 1934 REVENUE ACT INVOLVED IN
THE HORST CASE.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT REVERSED
THE ORDER OF THE BOARD OF TAX APPEALS SUSTAINING THE ASSESSMENT.  110
F.2D 737; 39 B.T.A. 583.  WE GRANTED CERTIORARI OCTOBER 14, 1940. 

NO PURPOSE OF THE ASSIGNMENTS APPEARS OTHER THAN TO CONFER ON THE
ASSIGNEES THE POWER TO COLLECT THE COMMISSIONS, WHICH THEY DID IN THE
TAXABLE YEAR.  THE GOVERNMENT AND RESPONDENT HAVE BRIEFED AND ARGUED
THE CASE HERE ON THE ASSUMPTION THAT THE ASSIGNMENTS WERE VOLUNTARY
TRANSFERS TO THE ASSIGNEES OF THE RIGHT TO COLLECT THE COMMISSIONS AS
AND WHEN THEY BECAME PAYABLE, AND THE RECORD AFFORDS NO BASIS FOR ANY
OTHER. 

FOR THE REASONS STATED AT LENGTH IN THE OPINION IN THE HORST CASE, WE
HOLD THAT THE COMMISSIONS WERE TAXABLE AS INCOME OF THE ASSIGNOR IN THE
YEAR WHEN PAID.  THE JUDGMENT BELOW IS REVERSED. 

THE SEPARATE OPINION OF MR. JUSTICE MCREYNOLDS. 

THE CAUSE WAS DECIDED UPON STIPULATED FACTS.  THE FOLLOWING STATEMENT
TAKEN FROM THE COURT'S OPINION DISCLOSES THE ISSUES. 

"THE QUESTION PRESENTED IS WHETHER RENEWAL COMMISSIONS PAYABLE TO A
GENERAL AGENT OF A LIFE INSURANCE COMPANY AFTER THE TERMINATION OF HIS
AGENCY AND BY HIM ASSIGNED PRIOR TO THE TAXABLE YEAR, MUST BE INCLUDED
IN HIS INCOME DESPITE THE ASSIGNMENT. 

"DURING PART OF THE YEAR 1924 THE PETITIONER WAS EMPLOYED BY THE
CANADA LIFE ASSURANCE COMPANY AS ITS BRANCH MANAGER FOR THE STATE OF
MICHIGAN.  HIS COMPENSATION CONSISTED OF A SALARY PLUS CERTAIN
COMMISSIONS.  HIS EMPLOYMENT TERMINATED ON SEPTEMBER 1, 1924.  UNDER
THE TERMS OF HIS CONTRACT HE WAS ENTITLED TO RENEWAL COMMISSIONS ON
PREMIUMS THEREAFTER COLLECTED BY THE COMPANY ON POLICIES WRITTEN PRIOR
TO THE TERMINATION OF HIS AGENCY, WITHOUT THE OBLIGATION TO PERFORM ANY
FURTHER SERVICES.  IN NOVEMBER 1924 HE ASSIGNED HIS RIGHT, TITLE, AND
INTEREST IN THE CONTRACT AS WELL AS THE RENEWAL COMMISSIONS TO A
CORPORATE TRUSTEE.  FROM SEPTEMBER 1, 1924 TO JUNE 30, 1927, THE
PETITIONER AND ANOTHER, CONSTITUTING THE FIRM OF HART & EUBANK, WERE
GENERAL AGENTS IN NEW YORK CITY FOR THE AETNA LIFE ASSURANCE COMPANY,
AND FROM JULY 1, 1927 TO AUGUST 31, 1927, THE PETITIONER INDIVIDUALLY
WAS GENERAL AGENT FOR SAID AETNA COMPANY.  THE AETNA CONTRACTS LIKEWISE
CONTAINED TERMS ENTITLING THE AGENT TO COMMISSIONS ON RENEWAL PREMIUMS
PAID AFTER TERMINATION OF THE AGENCY, WITHOUT THE PERFORMANCE OF ANY
FURTHER SERVICES.  ON MARCH 28, 1928, THE PETITIONER ASSIGNED TO THE
CORPORATE TRUSTEE ALL COMMISSIONS TO BECOME DUE HIM UNDER THE AETNA
CONTRACTS.  DURING THE YEAR 1933 THE TRUSTEE COLLECTED BY VIRTUE OF THE
ASSIGNMENTS RENEWAL COMMISSIONS PAYABLE UNDER THE THREE AGENCY
CONTRACTS ABOVE MENTIONED, AMOUNTING TO SOME $15,600.  THESE
COMMISSIONS WERE TAXED TO THE PETITIONER BY THE COMMISSIONER, AND THE
BOARD HAS SUSTAINED THE DEFICIENCY RESULTING THEREFROM."  110 F.2D
738. 

THE COURT BELOW DECLARED - 

"IN THE CASE AT BAR THE PETITIONER OWNED A RIGHT TO RECEIVE MONEY FOR
PAST SERVICES; NO FURTHER SERVICES WERE REQUIRED.  SUCH A RIGHT IS
ASSIGNABLE.  AT THE TIME OF ASSIGNMENT THERE WAS NOTHING CONTINGENT IN
THE PETITIONER'S RIGHT, ALTHOUGH THE AMOUNT COLLECTIBLE IN FUTURE YEARS
WAS STILL UNCERTAIN AND CONTINGENT.  BUT THIS MAY BE EQUALLY TRUE WHERE
THE ASSIGNMENT TRANSFERS A RIGHT TO INCOME FROM INVESTMENTS, AS IN
BLAIR V. COMMISSIONER, 300 U.S. 5, AND HORST V. COMMISSIONER, 107 F.2D
906(C.C.A. 2), OR A RIGHT TO PATENT ROYALTIES, AS IN NELSON V.
FERGUSON, 56 F.2D 121(C.C.A. 3), CERTIORARI DENIED, 286 U.S. 565.  BY
AN ASSIGNMENT OF FUTURE EARNINGS A TAXPAYER MAY NOT ESCAPE TAXATION
UPON HIS COMPENSATION IN THE YEAR WHEN HE EARNS IT.  BUT WHEN A
TAXPAYER WHO MAKES HIS INCOME TAX RETURN ON A CASH BASIS ASSIGNS A
RIGHT TO MONEY PAYABLE IN THE FUTURE FOR WORK ALREADY PERFORMED, WE
BELIEVE THAT HE TRANSFERS A PROPERTY RIGHT, AND THE MONEY, WHEN
RECEIVED BY THE ASSIGNEE, IS NOT INCOME TAXABLE TO THE ASSIGNOR." 

ACCORDINGLY, THE BOARD OF TAX APPEALS WAS REVERSED; AND THIS, I
THINK, IS IN ACCORD WITH THE STATUTE AND OUR OPINIONS. 

THE ASSIGNMENT IN QUESTION DENUDED THE ASSIGNOR OF ALL RIGHT TO
COMMISSIONS THEREAFTER TO ACCRUE UNDER THE CONTRACT WITH THE INSURANCE
COMPANY.  HE COULD DO NOTHING FURTHER IN RESPECT OF THEM; THEY WERE
ENTIRELY BEYOND HIS CONTROL.  IN NO PROPER SENSE WERE THEY SOMETHING
EITHER EARNED OR RECEIVED BY HIM DURING THE TAXABLE YEAR.  THE RIGHT TO
COLLECT BECAME THE ABSOLUTE PROPERTY OF THE ASSIGNEE WITHOUT RELATION
TO FUTURE ACTION BY THE ASSIGNOR. 

A MERE RIGHT TO COLLECT FUTURE PAYMENTS, FOR SERVICES ALREADY
PERFORMED, IS NOT PRESENTLY TAXABLE AS "INCOME DERIVED" FROM SUCH
SERVICES.  IT IS PROPERTY WHICH MAY BE ASSIGNED.  WHATEVER THE ASSIGNOR
RECEIVES AS CONSIDERATION MAY BE HIS INCOME; BUT THE STATUTE DOES NOT
UNDERTAKE TO IMPOSE LIABILITY UPON HIM BECAUSE OF PAYMENTS TO ANOTHER
UNDER A CONTRACT WHICH HE HAD TRANSFERRED IN GOOD FAITH, UNDER
CIRCUMSTANCES LIKE THOSE HERE DISCLOSED. 

AS IN HELVERING V. HORST, JUST DECIDED, THE PETITIONER RELIES UPON
OPINIONS HERE; BUT OBVIOUSLY THEY AROSE UPON FACTS ESSENTIALLY
DIFFERENT FROM THOSE NOW PRESENTED.  THEY DO NOT SUPPORT HIS
CONTENTION.  THE GENERAL PRINCIPLES APPROVED IN BLAIR V. COMMISSIONER,
300 U.S. 5, AND APPLIED IN HELVERING V. HORST, ARE CONTROLLING AND CALL
FOR AFFIRMATION OF THE JUDGMENT UNDER REVIEW. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS CONCUR IN THIS OPINION. 
..END :






















SMITH V. TEXAS, 311 U.S. 128 


NO. 33.  ARGUED NOVEMBER 14, 1940.  - DECIDED NOVEMBER 25, 1940.  - 136
S.W.2D 842, REVERSED. 


1.  THE CONVICTION OF A NEGRO UPON AN INDICTMENT RETURNED BY THE GRAND
JURY OF A COUNTY IN WHICH, AT THE TIME OF SUCH RETURN AND LONG PRIOR
THERETO, NEGROES WERE INTENTIONALLY AND SYSTEMATICALLY EXCLUDED FROM
GRAND JURY SERVICE, SOLELY ON ACCOUNT OF THEIR RACE AND COLOR, DENIES
TO HIM THE EQUAL PROTECTION OF THE LAWS, IN VIOLATION OF THE FOURTEENTH
AMENDMENT OF THE FEDERAL CONSTITUTION.  P. 132. 

2.  UPON REVIEW OF A STATE COURT DECISION WHEREIN A CLAIM OF A RIGHT
UNDER THE FEDERAL CONSTITUTION WAS DENIED, THIS COURT WILL EXAMINE AND
APPRAISE FOR ITSELF THE EVIDENCE RELATING TO SUCH RIGHT.  P. 130. 

3.  THE EVIDENCE IN THIS CASE SUSTAINS THE CLAIM OF RACIAL
DISCRIMINATION IN THE SELECTION OF THE GRAND JURY BY WHICH THE NEGRO
DEFENDANT WAS INDICTED; AND, WHETHER SUCH DISCRIMINATION WAS
ACCOMPLISHED INGENIOUSLY OR INGENUOUSLY, HIS CONVICTION WAS VOID.  PP.
130-132. 

SMITH V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

CERTIORARI, 309 U.S. 651, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
SENTENCING THE PETITIONER UPON HIS CONVICTION OF A CRIME.  THE TRIAL
COURT HAD OVERRULED A MOTION TO QUASH THE INDICTMENT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN HARRIS COUNTY, TEXAS, WHERE PETITIONER, A NEGRO, WAS INDICTED AND
CONVICTED OF RAPE, NEGROES CONSTITUTE OVER 20% OF THE POPULATION, AND
ALMOST 10% OF THE POLLTAX PAYERS; A MINIMUM OF FROM THREE TO SIX
THOUSAND OF THEM MEASURE UP TO THE QUALIFICATIONS PRESCRIBED BY TEXAS
STATUTES FOR GRAND JURY SERVICE.  THE COURT CLERK, CALLED AS A STATE
WITNESS AND TESTIFYING FROM COURT RECORDS COVERING THE YEARS 1931
THROUGH 1938, SHOWED THAT ONLY 5 OF THE 384 GRAND JURORS WHO SERVED
DURING THAT PERIOD WERE NEGROES; THAT OF 512 PERSONS SUMMONED FOR GRAND
JURY DUTY, ONLY 18 WERE NEGROES; THAT OF THESE 18, THE NAMES OF 13
APPEARED AS THE LAST NAME ON THE 16 MAN JURY LIST, THE CUSTOM BEING TO
SELECT THE 12 MAN GRAND JURY IN THE ORDER THAT THE NAMES APPEARED ON
THE LIST; THAT OF THE 5 NEGROES SUMMONED FOR GRAND JURY SERVICE WHO
WERE NOT GIVEN THE NUMBER 16, 4 WERE GIVEN NUMBERS BETWEEN 13 AND 16,
AND 1 WAS NUMBER 6; THAT THE RESULT OF THIS NUMBERING WAS THAT OF THE
18 NEGROES SUMMONED, ONLY 5 EVER SERVED, WHEREAS 379 OF THE 494 WHITE
MEN SUMMONED ACTUALLY SERVED; THAT OF 32 GRAND JURIES EMPANELLED, ONLY
5 HAD NEGRO MEMBERS, WHILE 27 HAD NONE; THAT OF THESE 5, THE SAME
INDIVIDUAL SERVED 3 TIMES, SO THAT ONLY 3 INDIVIDUAL NEGROES SERVED AT
ALL; THAT THERE HAD BEEN NO NEGROES ON ANY OF THE GRAND JURIES IN 1938,
THE YEAR PETITIONER WAS INDICTED; THAT THERE HAD BEEN NONE ON ANY OF
THE GRAND JURIES IN 1937; THAT THE SERVICE OF NEGROES BY YEARS HAD
BEEN:  1931, 1; 1932, 2; 1933, 1; 1934, 1; 1935, NONE; 1936, 1; 1937,
NONE; 1938, NONE. 

IT IS PETITIONER'S CONTENTION THAT HIS CONVICTION WAS BASED ON AN
INDICTMENT OBTAINED IN VIOLATION OF THE PROVISION OF THE FOURTEENTH
AMENDMENT THAT "NO STATE SHALL  ...  DENY TO ANY PERSON WITHIN ITS
JURISDICTION THE EQUAL PROTECTION OF THE LAWS."  AND THE CONTENTION
THAT EQUAL PROTECTION WAS DENIED HIM RESTS ON A CHARGE THAT NEGROES
WERE, IN 1938 AND LONG PRIOR THERETO, INTENTIONALLY AND SYSTEMATICALLY
EXCLUDED FROM GRAND JURY SERVICE SOLELY ON ACCOUNT OF THEIR RACE AND
COLOR.  THAT A CONVICTION BASED UPON AN INDICTMENT RETURNED BY A JURY
SO SELECTED IS A DENIAL OF EQUAL PROTECTION IS WELL SETTLED,  FN1  AND
IS NOT CHALLENGED BY THE STATE.  BUT BOTH THE TRIAL COURT AND THE TEXAS
CRIMINAL COURT OF APPEALS WERE OF OPINION THAT THE EVIDENCE FAILED TO
SUPPORT THE CHARGE OF RACIAL DISCRIMINATION.  FOR THAT REASON THE
APPELLATE COURT APPROVED THE TRIAL COURT'S ACTION IN DENYING
PETITIONER'S TIMELY MOTION TO QUASH THE INDICTMENT.  FN2  BUT THE
QUESTION DECIDED RESTED UPON A CHARGE OF DENIAL OF EQUAL PROTECTION, A
BASIC RIGHT PROTECTED BY THE FEDERAL CONSTITUTION.  AND IT IS THEREFORE
OUR RESPONSIBILITY TO APPRAISE THE EVIDENCE AS IT RELATES TO THIS
CONSTITUTIONAL RIGHT.  FN3 

IT IS PART OF THE ESTABLISHED TRADITION IN THE USE OF JURIES AS
INSTRUMENTS OF PUBLIC JUSTICE THAT THE JURY BE A BODY TRULY
REPRESENTATIVE OF THE COMMUNITY.  FOR RACIAL DISCRIMINATION TO RESULT
IN THE EXCLUSION FROM JURY SERVICE OF OTHERWISE QUALIFIED GROUPS NOT
ONLY VIOLATES OUR CONSTITUTION AND THE LAWS ENACTED UNDER IT  FN4  BUT
IS AT WAR WITH OUR BASIC CONCEPTS OF A DEMOCRATIC SOCIETY AND A
REPRESENTATIVE GOVERNMENT.  WE MUST CONSIDER THIS RECORD IN THE LIGHT
OF THESE IMPORTANT PRINCIPLES.  THE FACT THAT THE WRITTEN WORDS OF A
STATE'S LAWS HOLD OUT A PROMISE THAT NO SUCH DISCRIMINATION WILL BE
PRACTICED IS NOT ENOUGH.  THE FOURTEENTH AMENDMENT REQUIRES THAT EQUAL
PROTECTION TO ALL MUST BE GIVEN - NOT MERELY PROMISED. 

HERE THE TEXAS STATUTORY SCHEME IS NOT IN ITSELF UNFAIR; IT IS
CAPABLE OF BEING CARRIED OUT WITH NO RACIAL DISCRIMINATION WHATSOEVER. 
FN5  BUT BY REASON OF THE WIDE DISCRETION PERMISSIBLE IN THE VARIOUS
STEPS OF THE PLAN, IT IS EQUALLY CAPABLE OF BEING APPLIED IN SUCH A
MANNER AS PRACTICALLY TO PROSCRIBE ANY GROUP THOUGHT BY THE LAW'S
ADMINISTRATORS TO BE UNDESIRABLE.  AND FROM THE RECORD BEFORE US THE
CONCLUSION IS INESCAPABLE THAT IT IS THE LATTER APPLICATION THAT HAS
PREVAILED IN HARRIS COUNTY.  CHANCE AND ACCIDENT ALONE COULD HARDLY
HAVE BROUGHT ABOUT THE LISTING FOR GRAND JURY SERVICE OF SO FEW NEGROES
FROM AMONG THE THOUSANDS SHOWN BY THE UNDISPUTED EVIDENCE TO POSSESS
THE LEGAL QUALIFICATIONS FOR JURY SERVICE.  NOR COULD CHANCE AND
ACCIDENT HAVE BEEN RESPONSIBLE FOR THE COMBINATION OF CIRCUMSTANCES
UNDER WHICH A NEGRO'S NAME, WHEN LISTED AT ALL, ALMOST INVARIABLY
APPEARED AS NUMBER 16, AND UNDER WHICH NUMBER 16 WAS NEVER CALLED FOR
SERVICE UNLESS IT PROVED IMPOSSIBLE TO OBTAIN THE REQUIRED JURORS FROM
THE FIRST 15 NAMES ON THE LIST. 

THE STATE ARGUES THAT THE TESTIMONY OF THE COMMISSIONERS THEMSELVES
SHOWS THAT THERE WAS NO ARBITRARY OR SYSTEMATIC EXCLUSION.  AND IT IS
TRUE THAT TWO OF THE THREE COMMISSIONERS WHO DREW THE SEPTEMBER, 1938,
PANEL TESTIFIED TO THAT EFFECT.  BOTH OF THEM ADMITTED THAT THEY DID
NOT SELECT ANY NEGROES, ALTHOUGH THE SUBJECT WAS DISCUSSED, BUT BOTH
CATEGORICALLY DENIED THAT THEY INTENTIONALLY, ARBITRARILY OR
SYSTEMATICALLY DISCRIMINATED AGAINST NEGRO JURORS AS SUCH.  ONE SAID
THAT THEIR FAILURE TO SELECT NEGROES WAS BECAUSE THEY DID NOT KNOW THE
NAMES OF ANY WHO WERE QUALIFIED AND THE OTHER SAID THAT HE WAS NOT
PERSONALLY ACQUAINTED WITH ANY MEMBER OF THE NEGRO RACE.  THIS IS, AT
BEST, THE TESTIMONY OF TWO INDIVIDUALS WHO PARTICIPATED IN DRAWING 1
OUT OF THE 32 JURY PANELS DISCUSSED IN THE RECORD.  BUT EVEN IF THEIR
TESTIMONY WERE GIVEN THE GREATEST POSSIBLE EFFECT, AND THEIR SITUATION
CONSIDERED TYPICAL OF THAT OF THE 94 COMMISSIONERS WHO DID NOT TESTIFY,
WE WOULD STILL FEEL COMPELLED TO REVERSE THE DECISION BELOW.  WHAT THE
FOURTEENTH AMENDMENT PROHIBITS IS RACIAL DISCRIMINATION IN THE
SELECTION OF GRAND JURIES.  WHERE JURY COMMISSIONERS LIMIT THOSE FROM
WHOM GRAND JURIES ARE SELECTED TO THEIR OWN PERSONAL ACQUAINTANCE,
DISCRIMINATION CAN ARISE FROM COMMISSIONERS WHO KNOW NO NEGROES AS WELL
AS FROM COMMISSIONERS WHO KNOW BUT ELIMINATE THEM.  IF THERE HAS BEEN
DISCRIMINATION, WHETHER ACCOMPLISHED INGENIOUSLY OR INGENUOUSLY, THE
CONVICTION CANNOT STAND.  REVERSED. 

FN1  PIERRE V. LOUISIANA, 306 U.S. 354; MARTIN V. TEXAS, 200 U.S.
316, 319; CARTER V. TEXAS, 177 U.S. 442, 447. 

FN2  136 S.W.2D 842. 

FN3  CHAMBERS V. FLORIDA, 309 U.S. 227, 228; PIERRE V. LOUISIANA, 306
U.S. 354, 358; NORRIS V. ALABAMA, 294 U.S. 587, 590. 

FN4  "NO CITIZEN POSSESSING ALL OTHER QUALIFICATIONS  ...  SHALL BE
DISQUALIFIED FOR SERVICE AS GRAND OR PETIT JUROR IN ANY COURT OF THE
UNITED STATES, OR OF ANY STATE, ON ACCOUNT OF RACE, COLOR, OR PREVIOUS
CONDITION OF SERVITUDE; ...  " 18 STAT. 336, 8 U.S.C. SEC. 44. 

FN5  THE STATUTORY SCHEME IS SET OUT IN THE TEXAS CODE OF CRIMINAL
PROCEDURE, ARTICLES 333-350.  AT EACH TERM OF COURT, THREE GRAND JURY
COMMISSIONERS ARE APPOINTED; AT THE TIME THEY ARE SWORN IN, THE JUDGE
INSTRUCTS THEM AS TO THEIR DUTIES; THEY ARE REQUIRED TO TAKE AN OATH
NOT KNOWINGLY TO SELECT A GRAND JUROR WHOM THEY BELIEVE UNFIT OR
UNQUALIFIED; THEY MUST THEN RETIRE TO A ROOM IN THE COURT HOUSE, TAKING
THE COUNTY ASSESSMENT ROLL WITH THEM; WHILE IN THAT ROOM THEY MUST
SELECT A GRAND JURY OF 16 MEN FROM DIFFERENT PARTS OF THE COUNTY; THEY
MUST NEXT SEAL IN AN ENVELOPE THE LIST OF THE 16 NAMES SELECTED; THIRTY
DAYS BEFORE COURT MEETS THE CLERK IS REQUIRED TO MAKE A COPY OF THE
LIST AND DELIVER IT TO THE SHERIFF; THEREUPON THE SHERIFF MUST SUMMON
THE JURORS. 
..END :









COMM'N V. BROADCASTING SYSTEM, 311 U.S. 132 


NO. 39.  ARGUED NOVEMBER 15, 1940.  - DECIDED NOVEMBER 25, 1940.  - 71
APP. D.C. 206 - 108 F.2D 737, REVERSED. 


1.  SECTION 402(B) OF THE COMMUNICATIONS ACT OF 1934, AS AMENDED, DOES
NOT AUTHORIZE AN APPEAL TO THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA FROM AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION DENYING
AN APPLICATION UNDER SEC. 310(B) FOR CONSENT TO THE TRANSFER OF A RADIO
STATION LICENSE.  P. 134. 

2.  SUCH AN ORDER IS NOT ONE REFUSING AN "APPLICATION FOR A RADIO
STATION LICENSE," WITHIN THE MEANING OF SEC. 402(A) OR SEC. 402(B)(1). 
P. 136. 

3.  IMPLIED ADOPTION OF A JUDICIAL CONSTRUCTION UPON THE RE-ENACTMENT
OF A STATUTE IS MERELY ONE FACTOR IN THE TOTAL EFFORT TO GIVE FAIR
MEANING TO STATUTORY LANGUAGE.  P. 137. 

FEDERAL COMMUNICATIONS COMMISSION V. COLUMBIA BROADCASTING SYSTEM OF
CALIFORNIA, INC.* 

*TOGETHER WITH NO. 40, FEDERAL COMMUNICATIONS COMMISSION V.
ASSOCIATED BROADCASTERS, INC., ALSO ON WRIT OF CERTIORARI, 310 U.S.
617, TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 310 U.S. 617, TO REVIEW THE DENIAL OF MOTIONS IN TWO
CASES TO DISMISS APPEALS FROM AN ORDER OF THE FEDERAL COMMUNICATIONS
COMMISSION REFUSING CONSENT TO THE TRANSFER OF A RADIO STATION
LICENSE.  THE PROPOSED TRANSFEROR AND THE PROPOSED TRANSFEREE HAD
JOINED IN AN APPLICATION TO THE COMMISSION FOR SUCH CONSENT, AND TOOK
SEPARATE APPEALS FROM THE ORDER DENYING IT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE BROUGHT THESE TWO CASES HERE, 310 U.S. 617, BECAUSE THEY RAISE
QUESTIONS OF IMPORTANCE TOUCHING THE DISTRIBUTION OF JUDICIAL AUTHORITY
UNDER THE COMMUNICATIONS ACT OF 1934.  (ACT OF JUNE 19, 1934, 48 STAT.
1064, AS AMENDED BY THE ACT OF JUNE 5, 1936, 49 STAT. 1475, AND BY THE
ACT OF MAY 20, 1937, 50 STAT. 189; 47 U.S.C. SEC. 151 ET SEQ.) 

INSOFAR AS ACTION OF THE FEDERAL COMMUNICATIONS COMMISSION IS SUBJECT
TO JUDICIAL REVIEW, THE ACT BIFURCATES ACCESS TO THE LOWER FEDERAL
COURTS ACCORDING TO THE NATURE OF THE SUBJECT MATTER BEFORE THE
COMMISSION.  BARRING THE EXCEPTIONS IMMEDIATELY TO BE NOTED, SEC.
402(A) ASSIMILATES "SUITS TO ENFORCE, ENJOIN, SET ASIDE, ANNUL, OR
SUSPEND ANY ORDER OF THE COMMISSION UNDER THIS ACT" TO THE SCHEME OF
THE ACT OF OCTOBER 22, 1913(38 STAT. 219), PERTAINING TO JUDICIAL
REVIEW OF ORDERS OF THE INTERSTATE COMMERCE COMMISSION.  THEREFORE AS
TO THE GENERAL CLASS OF ORDERS DEALT WITH BY SEC. 402(A) JURISDICTION
RESTS EXCLUSIVELY IN THE APPROPRIATE DISTRICT COURT, SPECIALLY
CONSTITUTED, WITH DIRECT APPEAL TO THIS COURT.  EXCEPTED FROM THIS
SCHEME OF JURISDICTION IS "ANY ORDER OF THE COMMISSION GRANTING OR
REFUSING AN APPLICATION FOR A CONSTRUCTION PERMIT FOR A RADIO STATION,
OR FOR A RADIO STATION LICENSE, OR FOR RENEWAL OF AN EXISTING RADIO
STATION LICENSE, OR FOR MODIFICATION OF AN EXISTING RADIO STATION
LICENSE, OR SUSPENDING A RADIO OPERATOR'S LICENSE."  THESE FIVE TYPES
OF ORDERS, THUS PLACED BEYOND THE JURISDICTION OF THE DISTRICT COURTS,
ARE THEN AFFIRMATIVELY DEALT WITH BY SEC. 402(B).  AS TO THEM, THAT
PROVISION GIVES AN APPEAL "FROM DECISIONS OF THE COMMISSION TO THE
COURT OF APPEALS OF THE DISTRICT OF COLUMBIA," WITH ULTIMATE RESORT TO
THIS COURT ONLY UPON WRIT OF CERTIORARI. 

OUR PROBLEM, THEN, IS TO APPLY THIS SCHEME OF JURISDICTION TO THE
SITUATION BEFORE US.  ACTING UNDER SEC. 310(B) OF THE COMMUNICATIONS
ACT, THE COMMISSION REFUSED CONSENT TO AN ASSIGNMENT TO THE COLUMBIA
BROADCASTING SYSTEM OF CALIFORNIA OF A RADIO STATION LICENSE HELD BY
THE ASSOCIATED BROADCASTERS.  COLUMBIA AND ASSOCIATED THEREUPON SOUGHT
IN THE COURT OF APPEALS FOR THE DISTRICT REVIEW OF THE COMMISSION'S
DENIAL OF CONSENT.  THE COMMISSION MOVED TO DISMISS THE APPEALS FOR
WANT OF JURISDICTION.  THE COURT BELOW, WITH ONE JUSTICE DISSENTING,
DENIED THE MOTIONS AND ENTERTAINED JURISDICTION.  71 APP. D.C. 206; 108
F.2D 737. 

THE CRUX OF THE CONTROVERSY IS WHETHER AN ORDER OF THE COMMISSION, IN
THE EXERCISE OF ITS AUTHORITY UNDER SEC. 310(B), DENYING CONSENT TO AN
ASSIGNMENT OF A RADIO STATION LICENSE IS AN ORDER "REFUSING AN
APPLICATION  ...  FOR A RADIO STATION LICENSE," WITHIN THE MEANING OF
SECS. 402(A) AND (B).  IF IT IS, THE COURT BELOW WAS SEIZED OF
JURISDICTION.  IF IT IS NOT, THAT COURT WAS WITHOUT IT.  IN THE
LANGUAGE QUOTED IN THE MARGIN, CONGRESS HAS MADE THE CHOICE AND IT IS
FOR US TO ASCERTAIN IT.  FN1 

PRIMARILY, OUR TASK IS TO READ WHAT CONGRESS HAS WRITTEN.  AS A
MATTER OF COMMON SPEECH, THE EXCEPTED TYPES OF ORDERS WHICH ALONE CAN
COME BEFORE THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA DO NOT
INCLUDE AN ORDER REFUSING THE CONSENT REQUIRED BY SEC. 310(B). 
REFUSING "AN APPLICATION  ...  FOR A RADIO STATION LICENSE" IS HARDLY
AN APT WAY TO CHARACTERIZE REFUSAL TO ASSENT TO THE TRANSFER OF SUCH A
LICENSE FROM AN EXISTING HOLDER.  NOR IS THERE ANYTHING TO INDICATE
THAT THE PECULIAR IDIOM OF THE INDUSTRY OR OF ADMINISTRATIVE PRACTICE
HAS MODIFIED THE MEANING THAT ORDINARY SPEECH ASSIGNS TO THE LANGUAGE. 
INSTEAD OF ASSIMILATING THE REQUIREMENTS FOR TRANSFERS TO APPLICATIONS
FOR NEW LICENSES OR RENEWALS, THE ACT AS A WHOLE SHARPLY DIFFERENTIATES
BETWEEN THEM.  DIFFERENT CONSIDERATIONS OF POLICY MAY GOVERN THE
GRANTING OR WITHHOLDING OF LICENSES FROM THOSE WHICH PERTAIN TO ASSENT
TO TRANSFERS.  AND CONGRESS SAW FIT TO FASHION DIFFERENT PROVISIONS FOR
THEM.  COMPARE SECS. 307, 308, 309, AND 319 WITH SEC. 310(B).  THERE
ARE ALSO DIFFERENCES IN THE FORMULATED ADMINISTRATIVE PRACTICE FOR
DISPOSING OF APPLICATIONS FOR STATION LICENSES AND REQUESTS FOR
CONSENTS TO TRANSFER.  NOR DO SOME SIMILARITIES IN TREATMENT MAKE
IRRELEVANT THE DIFFERENCES. 

A SENSIBLE READING OF THE JURISDICTIONAL PROVISIONS IN THE CONTEXT OF
THE SUBSTANTIVE PROVISIONS TO WHICH THEY RELATE GIVES NO WARRANT FOR
DENYING SIGNIFICANCE TO THE CLASSIFICATION MADE BY CONGRESS BETWEEN
THOSE ORDERS FOR WHICH REVIEW CAN ONLY COME BEFORE THE LOCAL DISTRICT
COURTS, AND THOSE FIVE TYPES OF ORDERS, EXPLICITLY CHARACTERIZED, WHICH
ALONE CAN COME BEFORE THE COURT OF APPEALS FOR THE DISTRICT.  AND AN
ORDER DENYING CONSENT TO AN APPLICATION FOR A TRANSFER IS NOT ONE OF
THOSE FIVE, FOR IT IS NOT AN APPLICATION FOR "A RADIO STATION LICENSE"
IN ANY FAIR INTENDMENT OF THAT CATEGORY. 

WHAT THUS APPEARS CLEAR FROM A READING OF THE COMMUNICATIONS ACT
ITSELF IS NOT MODIFIED BY THE COLLATERAL MATERIALS WHICH HAVE BEEN
PRESSED UPON US.  THAT BOTH SIDES INVOKE THE SAME EXTRINSIC AIDS, ONE
TO FORTIFY AND THE OTHER TO NULLIFY THE CONCLUSION WE HAVE REACHED, IN
ITSELF PROVES WHAT DUBIOUS LIGHT THEY SHED.  WHAT WAS SAID IN COMMITTEE
REPORTS, AND SOME REMARKS BY THE PROPONENT OF THE MEASURE IN THE
SENATE, ARE SUFFICIENTLY AMBIGUOUS INSOFAR AS THIS NARROW ISSUE IS
CONCERNED, TO INVITE MUTUALLY DESTRUCTIVE DIALECTIC, BUT NOT STRONG
ENOUGH EITHER TO STRENGTHEN OR WEAKEN THE FORCE OF WHAT CONGRESS HAS
ENACTED.  SEE SEN. REP. NO. 781, 73D CONG., 2D SESS., PP. 9-10; HOUSE
REP. NO. 1918, 73D CONG., 2D SESS., PP. 49-50; 78 CONG. REC. 8825-26. 
THIS LEAVES FOR CONSIDERATION ONLY THE BEARING OF AN EARLIER DECISION
BY THE COURT OF APPEALS FOR THE DISTRICT ON THIS VERY QUESTION, ARISING
UNDER THE PREDECESSOR OF THE COMMUNICATIONS ACT, THE RADIO ACT OF 1927,
44 STAT. 1162, AS AMENDED, 46 STAT. 844.  IN THAT ACT, SEC. 16 COVERED,
FOR PRESENT PURPOSES, THE PROVISIONS OF SEC. 402(B) OF THE
COMMUNICATIONS ACT.  INTER ALIA, IT PROVIDED FOR APPEALS TO THE COURT
BELOW BY "ANY APPLICANT FOR A STATION LICENSE."  CONSTRUING THAT
PROVISION, THE COURT BELOW IN POTE V. FEDERAL RADIO COMMISSION, 67 F.2D
509, HELD THAT IT WAS WITHOUT JURISDICTION OVER AN APPEAL BY A
TRANSFEREE TO WHOM CONSENT TO A TRANSFER HAD BEEN DENIED.  THE PRESENT
SEC. 402 WAS ADOPTED AFTER THIS DECISION AND ANOTHER DECISION BY THE
SAME COURT WITHIN THIS FIELD OF JURISDICTION (GOSS V. FEDERAL RADIO
COMMISSION, 67 F.2D 507) HAD BEEN PRESUMABLY BROUGHT TO THE ATTENTION
OF CONGRESS.  HEARINGS ON S. 2910, 73D CONG., 2D SESS., PP. 44-45.  ON
THE ONE HAND IT IS INSISTED THAT, IN THE LIGHT OF THESE CIRCUMSTANCES,
THE CONSTRUCTION IN THE POTE DECISION WAS IMPLIEDLY ENACTED BY
CONGRESS, WHILE RESPONDENTS URGE THAT DIFFERENCES IN THE PROVISIONS
REGARDING THE COMMISSION'S POWER OVER CONSENT TO TRANSFERS DESTROY THE
SIGNIFICANCE OF THE POTE CASE.  BUT THESE CHANGES IN SEC. 310(B), WHICH
STIFFENED THE CONTROL OF THE COMMISSION OVER TRANSFERS, ARE WHOLLY
UNRELATED TO THE TECHNICAL QUESTION OF JURISDICTION WITH WHICH WE ARE
NOW CONCERNED.  WE ARE NOT, HOWEVER, WILLING TO REST DECISION ON ANY
DOCTRINE CONCERNING THE IMPLIED ENACTMENT OF A JUDICIAL CONSTRUCTION
UPON REENACTMENT OF A STATUTE.  THE PERSUASION THAT LIES BEHIND THAT
DOCTRINE IS MERELY ONE FACTOR IN THE TOTAL EFFORT TO GIVE FAIR MEANING
TO LANGUAGE.  AND SO, AT THE LOWEST, THE POTE CASE CERTAINLY DOES NOT
DETRACT FROM, BUT IF ANYTHING REENFORCES, THE CONSTRUCTION REQUIRED BY
A CLEAR-EYED READING OF THE STATUTE.  REVERSED. 

FN1  SEC. 402:  "(A)  THE PROVISIONS OF THE ACT OF OCTOBER 22,
1913(38 STAT. 219), RELATING TO THE ENFORCING OR SETTING ASIDE OF THE
ORDERS OF THE INTERSTATE COMMERCE COMMISSION, ARE HEREBY MADE
APPLICABLE TO SUITS TO ENFORCE, ENJOIN, SET ASIDE, ANNUL, OR SUSPEND
ANY ORDER OF THE COMMISSION UNDER THIS ACT (EXCEPT ANY ORDER OF THE
COMMISSION GRANTING OR REFUSING AN APPLICATION FOR A CONSTRUCTION
PERMIT FOR A RADIO STATION, OR FOR A RADIO STATION LICENSE, OR FOR
RENEWAL OF AN EXISTING RADIO STATION LICENSE, OR FOR MODIFICATION OF AN
EXISTING RADIO STATION LICENSE, OR SUSPENDING A RADIO OPERATOR'S
LICENSE) AND SUCH SUITS ARE HEREBY AUTHORIZED TO BE BROUGHT AS PROVIDED
IN THAT ACT. 

"(B)  AN APPEAL MAY BE TAKEN, IN THE MANNER HEREINAFTER PROVIDED,
FROM DECISIONS OF THE COMMISSION TO THE COURT OF APPEALS OF THE
DISTRICT OF COLUMBIA IN ANY OF THE FOLLOWING CASES: 

"(1)  BY ANY APPLICANT FOR A CONSTRUCTION PERMIT FOR A RADIO STATION,
OR FOR A RADIO STATION LICENSE, OR FOR RENEWAL OF AN EXISTING RADIO
STATION LICENSE, OR FOR MODIFICATION OF AN EXISTING RADIO STATION
LICENSE, WHOSE APPLICATION IS REFUSED BY THE COMMISSION. 

"(2)  BY ANY OTHER PERSON AGGRIEVED OR WHOSE INTERESTS ARE ADVERSELY
AFFECTED BY ANY DECISION OF THE COMMISSION GRANTING OR REFUSING ANY
SUCH APPLICATION. 

"(3)  BY ANY RADIO OPERATOR WHOSE LICENSE HAS BEEN SUSPENDED BY THE
COMMISSION." 

IF THE ASSIGNEE IS COVERED SEC. 402(B)(1) THE ASSIGNOR WOULD BE
WITHIN SEC. 402(B)(2). 
..END :




















AMERICAN INS. CO. V. AVON PARK, 311 U.S. 138 


NO. 31.  ARGUED NOVEMBER 12, 1940.  - DECIDED NOVEMBER 25, 1940.  - 108
F.2D 1010, REVERSED. 


1.  A PLAN FOR THE COMPOSITION OF THE DEBTS OF A MUNICIPALITY UNDER
CHAPTER IX OF THE BANKRUPTCY ACT COMPRISED A REFUNDING PLAN WHEREBY THE
MUNICIPALITY'S FISCAL AGENT (A PRIVATE CORPORATION) WOULD DEFRAY THE
EXPENSES INCIDENT TO THE REFUNDING AND WOULD BE REIMBURSED THEREFOR AND
COMPENSATED FOR ITS SERVICES BY AN ASSESSMENT OF PARTICIPATING
BONDHOLDERS.  A STATED CHARGE WAS TO BE MADE FOR EACH $1000 BOND, BUT
THE CHARGE WOULD BE LESS IF THE BONDHOLDER SHOULD SELL TO THE FISCAL
AGENT ACCRUED INTEREST COUPONS AT A THIRD OF THEIR FACE VALUE.  THE
FISCAL AGENT SOLICITED ACCEPTANCES OF THE PLAN, AND ACCEPTANCES
REPRESENTING MORE THAN TWO-THIRDS OF ALL CLAIMS AFFECTED WERE
OBTAINED.  EXCLUSIVE OF CLAIMS HELD BY THE FISCAL AGENT AS CREDITOR AND
VOTED IN FAVOR OF THE PLAN, HOWEVER, THE TWO-THIRDS REQUIRED FOR
CONFIRMATION WOULD HAVE BEEN LACKING.  THE CLAIMS HELD BY THE FISCAL
AGENT WERE ACQUIRED BY IT AT ABOUT FIFTY CENTS ON THE DOLLAR, SOME
BEFORE AND OTHERS AFTER IT ENTERED INTO THE AGENCY CONTRACT WITH THE
MUNICIPALITY.  IT DID NOT APPEAR FROM THE RECORD IN THE BANKRUPTCY
COURT WHETHER THE FISCAL AGENT DISCLOSED TO CREDITORS FROM WHOM IT
SOLICITED ACCEPTANCES:  THAT IT WAS A CREDITOR AS WELL AS FISCAL AGENT
OF THE MUNICIPALITY; THE EXTENT, OR THE CIRCUMSTANCES OF THE
ACQUISITION, OF THE CLAIMS HELD BY IT; OR ITS INTENT TO VOTE THOSE
CLAIMS IN FAVOR OF THE PLAN.  NO SUCH DISCLOSURE WAS MADE IN THE PLAN. 
HELD THAT AN ORDER OF THE BANKRUPTCY COURT CONFIRMING THE PLAN OF
COMPOSITION MUST BE SET ASIDE.  PP. 141, 143. 

2.  WHETHER THE FISCAL AGENT'S COMPENSATION FOR SERVICES RENDERED
WOULD EXCEED THE "REASONABLE COMPENSATION" AUTHORIZED BY SEC. 83(B) OF
THE ACT, REQUIRES EVALUATION OF THE AGGREGATE OF ALL BENEFITS WHICH
MIGHT ACCRUE TO IT UNDER THE PLAN, INCLUDING ITS SPECULATIVE
INTERESTS.  P. 144. 

3.  THAT THE FISCAL AGENT'S POSITION IN THE PLAN IS SPECULATIVE DOES
NOT DISPENSE WITH THE NECESSITY FOR THE DEFINITIVE FINDING DEMANDED BY
THE ACT AS TO THE REASONABLENESS OF COMPENSATION FOR SERVICES
RENDERED.  P. 144. 

4.  TO THE EXTENT THAT THE BENEFITS ACCRUING TO THE FISCAL AGENT
UNDER THE PLAN MIGHT EXCEED "REASONABLE COMPENSATION" FOR SERVICES
RENDERED, THE ALLOWANCE WAS NOT AUTHORIZED BY SEC. 83(B).  P. 144. 

5.  ALSO, IF EXCESS BENEFITS SHOULD ACCRUE TO THE FISCAL AGENT, THE
PLAN WOULD NOT THEN COMPLY WITH SEC. 83(E)(1), FOR IT WOULD
DISCRIMINATE UNFAIRLY IN FAVOR OF THE FISCAL AGENT AS CREDITOR.  P.
144. 

6.  SINCE THE FISCAL AGENT IN SOLICITING CREDITORS' ACCEPTANCES OF
THE PLAN IS NOT SHOWN TO HAVE MADE FULL DISCLOSURE WITH RESPECT TO ITS
DUAL CAPACITY AS FISCAL AGENT AND CREDITOR, IT CAN NOT BE SAID THAT THE
ASSENTS WERE FAIRLY OBTAINED, NOR THAT ITS ACCEPTANCE OF THE PLAN WAS
IN "GOOD FAITH" WITHIN THE MEANING OF SEC. 83(E)(5).  P. 144. 

7.  THE CONTROL WHICH THE BANKRUPTCY COURT HAS OVER THE WHOLE PROCESS
OF FORMULATION AND APPROVAL OF PLANS OF COMPOSITION OR REORGANIZATION,
AND THE OBTAINING OF ASSENTS THERETO, IS TO BE EXERCISED IN ACCORDANCE
WITH PRINCIPLES OF EQUITY, SO FAR AS CONSISTENT WITH THE ACT.  P. 145. 

8.  THE DUTY OF THE COURT IN CASES SUCH AS THIS REQUIRES SCRUTINY OF
THE CIRCUMSTANCES SURROUNDING THE ACCEPTANCES, THE SPECIAL OR ULTERIOR
MOTIVES WHICH MAY HAVE INDUCED THEM, THE TIME OF ACQUIRING THE CLAIMS
SO VOTING, THE AMOUNT PAID THEREFOR, ETC.  ONLY AFTER SUCH
INVESTIGATION CAN THE COURT EXERCISE THE "INFORMED, INDEPENDENT
JUDGMENT" ESSENTIAL TO CONFIRMATION OF A PLAN.  P. 145. 

9.  IT IS THE RESPONSIBILITY OF THE COURT BEFORE ENTERING AN ORDER OF
CONFIRMATION TO BE SATISFIED THAT THE PLAN IN ITS PRACTICAL INCIDENCE
EMBODIES A FAIR AND EQUITABLE BARGAIN OPENLY ARRIVED AT AND DEVOID OF
OVERREACHING, HOWEVER SUBTLE.  P. 146. 

10.  THE BANKRUPTCY COURT, IN PERMITTING CLAIMS HELD BY THE FISCAL
AGENT AS CREDITOR TO BE INCLUDED IN COMPUTING THE STATUTORY PERCENTAGE
OF ASSENTS, WITHOUT PROTECTING OTHER CREDITORS BY REQUIRING FULL
DISCLOSURE AND OTHER APPROPRIATE SAFEGUARDS, AND IN ALLOWING
COMPENSATION TO THE FISCAL AGENT WITHOUT SCRUTINIZING THE LATTER'S
SPECULATIVE INTERESTS, DID NOT IN THIS CASE DISCHARGE ITS
RESPONSIBILITIES UNDER THE ACT.  P. 146. 

11.  THE PROVISION OF SEC. 83(B) FOR ALLOWANCE OF "REASONABLE
COMPENSATION" FOR "SERVICES RENDERED" NECESSARILY IMPLIES "LOYAL AND
DISINTERESTED SERVICE IN THE INTEREST OF THE PERSONS" FOR WHOM THE
CLAIMANT PURPORTED TO ACT.  P. 147. 

12.  APPROVAL REPRESENTING THE REQUIRED PERCENTAGE OF CLAIMS AFFECTED
IS NOT THE EXCLUSIVE TEST OF WHETHER A PLAN OF COMPOSITION SATISFIES
THE STATUTORY STANDARD; IT IS INDEPENDENT OF, NOT A SUBSTITUTE FOR, THE
STATUTORY STANDARD.  P. 148. 

13.  CLAIMS ARE "CONTROLLED" BY THE MUNICIPALITY AND REQUIRED BY SEC.
83(D) TO BE EXCLUDED IN COMPUTING THE STATUTORY TWO-THIRDS REQUIRED FOR
CONFIRMATION OF THE PLAN NOT ONLY WHEN THE HOLDER OF THE CLAIMS IS AN
AGENT OF THE MUNICIPALITY WITHIN THE DOCTRINE OF RESPONDEAT SUPERIOR,
BUT ALSO WHEN THERE IS SUCH CLOSE IDENTITY OF INTERESTS BETWEEN THE
CLAIMANT AND THE MUNICIPALITY THAT THE CLAIMANT'S ASSENT TO THE PLAN
MAY FAIRLY BE SAID TO BE MORE THE PRODUCT OF THE MUNICIPALITY'S
INFLUENCE AND TO REFLECT MORE THE MUNICIPALITY'S DESIRES THAN AN
EXPRESSION OF AN INVESTOR'S INDEPENDENT BUSINESS JUDGMENT.  P. 148. 

14.  SHOULD THERE BE PRESENTED IN THIS CASE ANOTHER PLAN OF
COMPOSITION INVOLVING A FISCAL AGENCY CONTRACT, THE QUESTION OF THE
LEGALITY OF SUCH CONTRACT UNDER THE STATE LAW WOULD BE A RELEVANT
INQUIRY FOR THE DISTRICT COURT, AS BEARING ON WHETHER THE MUNICIPALITY
"IS AUTHORIZED BY LAW TO TAKE ALL ACTION NECESSARY TO BE TAKEN BY IT TO
CARRY OUT THE PLAN," WITHIN THE MEANING OF SEC. 83(E)(6).  P. 149. 

AMERICAN UNITED MUTUAL LIFE INSURANCE CO. V. CITY OF AVON PARK,
FLORIDA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 309 U.S. 651, TO REVIEW THE AFFIRMANCE OF AN ORDER
CONFIRMING A PLAN FOR THE COMPOSITION OF THE DEBTS OF A MUNICIPALITY
UNDER CHAPTER IX OF THE BANKRUPTCY ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE DISTRICT COURT CONFIRMED A PLAN FOR THE COMPOSITION OF THE DEBTS
OF RESPONDENT UNDER CH. IX OF THE BANKRUPTCY ACT (50 STAT. 653; 52
STAT. 939, 940).  FN1  THE CIRCUIT COURT OF APPEALS AFFIRMED THAT
ORDER.  108 F.2D 1010.  PETITIONER, A CREDITOR OF THE CITY, HAVING
OBJECTED TO THE CONFIRMATION IN THE COURTS BELOW, BROUGHT THE CASE HERE
ON A PETITION FOR CERTIORARI, WHICH WE GRANTED IN VIEW OF THE
IMPORTANCE OF THE PROBLEMS IN THE ADMINISTRATION OF THE COMPOSITION AND
REORGANIZATION PROVISIONS OF THE ACT. 

THE CITY'S COMPOSITION WAS A REFUNDING PLAN WORKED OUT BY IT AND ITS
FISCAL AGENT,  FN2 R.E. CRUMMER & CO. PURSUANT TO THE FISCAL AGENCY
CONTRACT BOTH PARTIES WERE TO USE THEIR BEST EFFORTS TO INDUCE THE
CREDITORS TO PARTICIPATE IN THE PLAN.  THE CITY WAS NOT TO PAY ANY OF
THE COSTS OF THE REFUNDING, AS CRUMMER WAS TO DEFRAY ALL EXPENSES
INCIDENT TO ASSEMBLING THE BONDS, PRINTING THE REFUNDING BONDS,
REPRESENTING THE CITY IN PROCEEDINGS TO VALIDATE THE NEW BONDS,
OBTAINING A LEGAL OPINION APPROVING THE BONDS, ETC.  THE FISCAL AGENCY
CONTRACT PROVIDED THAT CRUMMER WAS TO BE COMPENSATED FOR ITS SERVICES
AND REIMBURSED FOR ITS EXPENSES BY ASSESSING CHARGES AGAINST THE
PARTICIPATING BONDHOLDERS.  THIS CHARGE WAS $40 FOR EACH $1000 BOND; OR
IN CASE THE BONDHOLDERS ELECTED TO SELL CRUMMER THE INTEREST COUPONS,
ACCRUED TO JULY 1, 1937, AT ONE-THIRD OF THEIR FACE AMOUNT  FN3  THE
CHARGE WAS TO BE $20 PER $1000 BOND. 

CRUMMER SOLICITED ASSENTS TO THE PLAN.  APPROXIMATELY 69% OF THE
BONDHOLDERS ACCEPTED.  BUT FOR THE CLAIMS HELD BY THE CRUMMER
INTERESTS,  FN4  AND VOTED IN FAVOR OF THE PLAN, THE REQUISITE TWO
THIRDS STATUTORY VOTE, HOWEVER, WOULD NOT HAVE BEEN OBTAINED.  SOME OF
THESE CLAIMS HAD BEEN PURCHASED PRIOR TO THE FISCAL AGENCY CONTRACT,
SOME LATER.  THE AVERAGE PRICE WAS APPARENTLY ABOUT 50[ ON THE DOLLAR. 
THE INFERENCE SEEMS CLEAR THAT SOME OF THEM WERE ACQUIRED IN ORDER TO
FACILITATE CONSUMMATION OF THE COMPOSITION BY PLACING THEM IN FRIENDLY
HANDS.  BUT THE RECORD DOES NOT SHOW WHETHER OR NOT CRUMMER DISCLOSED
TO THE BONDHOLDERS WHEN THEIR ASSENTS WERE SOLICITED THAT IT WAS A
CREDITOR AS WELL AS THE CITY'S FISCAL AGENT, THE EXTENT OF THE CLAIMS
HELD BY IT AND ITS AFFILIATE, THE CIRCUMSTANCES SURROUNDING THEIR
ACQUISITION, AND ITS INTENT TO VOTE THOSE CLAIMS IN FAVOR OF THE PLAN. 
NO SUCH DISCLOSURE WAS MADE IN THE PLAN. 

THE DISTRICT COURT, HOWEVER, FOUND THAT THE TWO-THIRDS OF THE
AGGREGATE AMOUNT OF CLAIMS AFFECTED BY THE PLAN, REQUIRED BY SEC.
83(D), 11 U.S.C. SEC. 403(D), FOR CONFIRMATION, HAD ASSENTED.  IT ALSO
FOUND THAT CRUMMER'S COMPENSATION WAS FAIR AND REASONABLE, THAT THE
PLAN AND ITS ACCEPTANCE WERE IN GOOD FAITH, AND THAT THE PLAN WAS FAIR,
EQUITABLE AND FOR THE BEST INTERESTS OF THE CREDITORS, AND DID NOT
DISCRIMINATE UNFAIRLY IN FAVOR OF ANY CREDITOR. 

WE DISAGREE.  THE ORDER OF CONFIRMATION MUST BE SET ASIDE.  IT CANNOT
BE SAID THAT THE PLAN DOES NOT DISCRIMINATE UNFAIRLY IN FAVOR OF ANY
CREDITOR, THAT THE ACCEPTANCES WERE IN GOOD FAITH, THAT THE REQUISITE
TWO-THIRDS VOTE OF APPROVAL HAD BEEN OBTAINED. 

CRUMMER HAD AT LEAST  FN5  THREE FINANCIAL STAKES IN THIS
COMPOSITION:  (1) THE FEE TO BE COLLECTED FROM THE BONDHOLDERS; (2) ITS
SPECULATIVE POSITION IN SUCH OF THE INTEREST ACCRUALS AS IT MIGHT
ACQUIRE FROM THE BONDHOLDERS AT A THIRD OF THEIR FACE AMOUNT; (3) THE
PROFIT WHICH MIGHT ACCRUE TO IT OR ITS AFFILIATE, AS A RESULT OF THE
REFUNDING, ON BONDS ACQUIRED AT DEFAULT PRICES. 

THE COURT FOUND THAT THE FIRST OF THESE ITEMS WAS REASONABLE.  BUT IT
APPARENTLY DEEMED THE OTHERS IRRELEVANT TO THE INQUIRY. 

CLEARLY, HOWEVER, NO FINDING COULD BE MADE UNDER SEC. 83(B), 11
U.S.C. SEC. 403(B), THAT THE COMPENSATION TO BE RECEIVED BY THE FISCAL
AGENT WAS REASONABLE WITHOUT PASSING ON THE WORTH OF THE AGGREGATE OF
ALL THE EMOLUMENTS ACCRUING TO THE CRUMMER INTERESTS AS A RESULT OF
CONSUMMATION OF THE PLAN.  SINCE THAT INQUIRY WOULD NECESSITATE AN
APPRAISAL OF THE FISCAL AGENT'S SPECULATIVE POSITION IN THE PLAN,
PERHAPS THE DEFINITIVE FINDING DEMANDED BY THE ACT COULD NOT BE MADE. 
YET THAT IS A CHANCE WHICH THE FISCAL AGENT, NOT THE BONDHOLDERS, MUST
TAKE; FOR IT IS THE AGENT WHO IS SEEKING THE AID OF THE COURT IN
OBTAINING ONE OF THE BENEFITS OF THE ACT.  MOREOVER, TO THE EXTENT THAT
THE AGGREGATE BENEFITS FLOWING TO THE CRUMMER INTERESTS EXCEEDED
REASONABLE COMPENSATION FOR SERVICES RENDERED, THEIR REWARD WOULD
EXCEED WHAT THE COURT COULD AUTHORIZE UNDER SEC. 83(B), 11 U.S.C. SEC.
403(B).  FURTHERMORE, IF ANY SUCH EXCESS BENEFITS WOULD ACCRUE TO THEM,
THEN THE PLAN WOULD RUN AFOUL OF SEC. 83(E)(1), 11 U.S.C. SEC.
403(E)(1).  FOR IN THAT EVENT THE PLAN WOULD DISCRIMINATE UNFAIRLY IN
FAVOR OF THE CRUMMER INTERESTS AS CREDITORS. 

HENCE THE LACK OF THAT ESSENTIAL FINDING WOULD BE FATAL IN ANY CASE. 
IT IS ESPECIALLY SERIOUS HERE IN VIEW OF THE FACT THAT WITHOUT THE VOTE
OF THE FISCAL AGENT THE REQUISITE TWO-THIRDS ACCEPTANCE WOULD NOT HAVE
BEEN OBTAINED.  WHERE IT DOES NOT AFFIRMATIVELY APPEAR THAT FULL AND
COMPLETE DISCLOSURE OF THE FISCAL AGENT'S INTERESTS WAS MADE TO THE
BONDHOLDERS WHEN THEIR ASSENTS WERE SOLICITED, IT CANNOT BE SAID THAT
THOSE ASSENTS WERE FAIRLY OBTAINED.  CF. ROGERS V. GUARANTY TRUST CO.,
288 U.S. 123, 143.  AND WHERE WITHOUT SUCH DISCLOSURE THE FISCAL
AGENT'S VOTE WAS CAST FOR ACCEPTANCE OF THE PLAN, IT CANNOT BE SAID
THAT SUCH ACCEPTANCE WAS IN "GOOD FAITH" WITHIN THE MEANING OF SEC.
83(E)(5), 11 U.S.C. SEC. 403(E)(5).  HERE THE FISCAL AGENT WAS ACTING
IN A DUAL CAPACITY.  WHILE IT WAS REPRESENTING THE CITY, IT LIKEWISE
PURPORTED TO REPRESENT THE INTERESTS OF BONDHOLDERS.  THE VERY MINIMUM
REQUIREMENT FOR FAIR DEALING WAS THE ELEMENTARY OBLIGATION OF FULL
DISCLOSURE OF ALL ITS INTERESTS.  AND THE BURDEN WAS ON IT TO SHOW AT
LEAST THAT SUCH DISCLOSURE WAS MADE.  EQUITY AND GOOD CONSCIENCE
OBVIOUSLY WILL NOT PERMIT A FINDING THAT AN ACCEPTANCE OF A PLAN BY A
PERSON ACTING IN A REPRESENTATIVE CAPACITY IS IN "GOOD FAITH" WHERE
THAT PERSON IS OBTAINING AN UNDISCLOSED BENEFIT FROM THE PLAN. 

WE HAVE EMPHASIZED THAT FULL DISCLOSURE IS THE MINIMUM REQUIREMENT IN
ORDER NOT TO IMPLY THAT IT IS THE LIMIT OF THE POWER AND DUTY OF THE
BANKRUPTCY COURT IN THESE SITUATIONS.  AS THIS COURT STATED IN
SECURITIES AND EXCHANGE COMMISSION V. UNITED STATES REALTY &
IMPROVEMENT CO., 310 U.S. 434, 455:  "A BANKRUPTCY COURT IS A COURT OF
EQUITY, SEC. 2, 11 U.S.C. SEC. 11, AND IS GUIDED BY EQUITABLE DOCTRINES
AND PRINCIPLES EXCEPT IN SO FAR AS THEY ARE INCONSISTENT WITH THE ACT. 
...  A COURT OF EQUITY MAY IN ITS DISCRETION IN THE EXERCISE OF THE
JURISDICTION COMMITTED TO IT GRANT OR DENY RELIEF UPON PERFORMANCE OF A
CONDITION WHICH WILL SAFEGUARD THE PUBLIC INTEREST."  AND SEE PEPPER V.
LITTON, 308 U.S. 295, 304, ET SEQ. THESE PRINCIPLES ARE A PART OF THE
CONTROL WHICH THE COURT HAS OVER THE WHOLE PROCESS OF FORMULATION AND
APPROVAL OF PLANS OF COMPOSITION OR REORGANIZATION, AND THE OBTAINING
OF ASSENTS THERETO.  AS WE SAID IN CASE V. LOS ANGELES LUMBER PRODUCTS
CO., 308 U.S. 106, 114, "THE COURT IS NOT MERELY A MINISTERIAL REGISTER
OF THE VOTE OF THE SEVERAL CLASSES OF SECURITY HOLDERS."  THE
RESPONSIBILITY OF THE COURT ENTAILS SCRUTINY OF THE CIRCUMSTANCES
SURROUNDING THE ACCEPTANCES, THE SPECIAL OR ULTERIOR MOTIVES WHICH MAY
HAVE INDUCED THEM, THE TIME OF ACQUIRING THE CLAIMS SO VOTING, THE
AMOUNT PAID THEREFOR, AND THE LIKE.  SEE CONTINENTAL INSURANCE CO. V.
LOUISIANA OIL REFINING CORP., 89 F.2D 333.  ONLY AFTER SUCH
INVESTIGATION CAN THE COURT EXERCISE THE "INFORMED, INDEPENDENT
JUDGMENT" (NATIONAL SURETY CO. V. CORIELL, 289 U.S. 426, 436; CASE V.
LOS ANGELES LUMBER PRODUCTS CO., SUPRA, P. 115) WHICH IS AN ESSENTIAL
PREREQUISITE FOR CONFIRMATION OF A PLAN.  AND THAT IS TRUE WHETHER THE
ASSENTS TO THE PLAN HAVE BEEN OBTAINED PRIOR TO THE FILING OF THE
PETITION OR SUBSEQUENTLY THERETO.  WHERE SUCH INVESTIGATION DISCLOSES
THE EXISTENCE OF UNFAIR DEALING, A BREACH OF FIDUCIARY OBLIGATIONS,
PROFITING FROM A TRUST, SPECIAL BENEFITS FOR THE REORGANIZERS, OR THE
NEED FOR PROTECTION OF INVESTORS AGAINST AN INSIDE FEW, OR OF ONE CLASS
OF INVESTORS FROM THE ENCROACHMENTS OF ANOTHER, THE COURT HAS AMPLE
POWER TO ADJUST THE REMEDY TO MEET THE NEED.  THE REQUIREMENT OF FULL,
UNEQUIVOCAL DISCLOSURE; THE LIMITATION OF THE VOTE TO THE AMOUNT PAID
FOR THE SECURITIES (IN RE MCEWEN'S LAUNDRY, INC., 90 F.2D 872); THE
SEPARATE CLASSIFICATION OF CLAIMANTS (SEE FIRST NATIONAL BANK V. POLAND
UNION, 109 F.2D 54, 55); THE COMPLETE SUBORDINATION OF SOME CLAIMS
(TAYLOR V. STANDARD GAS & ELECTRIC CO., 306 U.S. 307; PEPPER V. LITTON,
SUPRA), INDICATE THE RANGE AND TYPE OF THE POWER WHICH A COURT OF
BANKRUPTCY MAY EXERCISE IN THESE PROCEEDINGS.  THAT POWER IS AMPLE FOR
THE EXIGENCIES OF VARYING SITUATIONS.  IT IS NOT DEPENDENT ON EXPRESS
STATUTORY PROVISIONS.  IT INHERES IN THE JURISDICTION OF A COURT OF
BANKRUPTCY.  THE NECESSITY FOR ITS EXERCISE (PEPPER V. LITTON, SUPRA,
P. 308) IS BASED ON THE RESPONSIBILITY OF THE COURT BEFORE ENTERING AN
ORDER OF CONFIRMATION TO BE SATISFIED THAT THE PLAN IN ITS PRACTICAL
INCIDENCE EMBODIES A FAIR AND EQUITABLE BARGAIN OPENLY ARRIVED AT AND
DEVOID OF OVERREACHING, HOWEVER SUBTLE.  NEGLECT OF THAT DUTY IS
APPARENT HERE BY INCLUSION OF THE VOTE OF THE CLAIMS HELD BY THE
CRUMMER INTERESTS IN COMPUTING THE REQUISITE STATUTORY ASSENTS, WITHOUT
PROTECTION OF THE PUBLIC INVESTORS THROUGH THE REQUIREMENT OF FULL
DISCLOSURE AND OF OTHER APPROPRIATE SAFEGUARDS.  BY THE SAME TOKEN
ALLOWANCE OF COMPENSATION TO CRUMMER WITHOUT SCRUTINY OF CRUMMER'S
SPECULATION IN THE SECURITIES DOES NOT COMPORT WITH THE STANDARDS FOR
SURVEILLANCE REQUIRED OF COURTS OF BANKRUPTCY BEFORE CONFIRMING PLANS
OF COMPOSITION OR REORGANIZATION OR BEFORE MAKING SUCH ALLOWANCES.  THE
SCOPE OF THE POWER OF THE COURT EMBRACES DENIAL OF COMPENSATION TO
THOSE WHO HAVE PURCHASED OR SOLD SECURITIES DURING OR IN CONTEMPLATION
OF THE PROCEEDINGS.  AS IN CASE OF REORGANIZATIONS UNDER FORMER SEC.
77B, THE PROVISION IN SEC. 83(B), 11 U.S.C. SEC. 403(B), FOR ALLOWANCE
OF "REASONABLE COMPENSATION" FOR "SERVICES RENDERED" NECESSARILY
IMPLIES "LOYAL AND DISINTERESTED SERVICE IN THE INTEREST OF THE
PERSONS" FOR WHOM THE CLAIMANT PURPORTED TO ACT.  IN RE PARAMOUNT
PUBLIX CORP., 12 F.SUPP.  823, 828. 

BEYOND THAT IS THE QUESTION OF UNFAIR DISCRIMINATION TO WHICH WE HAVE
ADVERTED.  COMPOSITIONS UNDER CH. IX, LIKE COMPOSITIONS UNDER THE OLD
SEC. 12, ENVISAGE EQUALITY OF TREATMENT OF CREDITORS.  UNDER THAT
ONE CREDITOR WAS OBTAINING SOME SPECIAL FAVOR OR INDUCEMENT NOT
ACCORDED THE OTHERS, WHETHER THAT CONSIDERATION MOVED FROM THE DEBTOR
OR FROM ANOTHER.  IN RE SAWYER, FED. CAS. NO. 12,395; IN RE WEINTROB,
240 F. 532; IN RE M. & H. GORDON, 245 F. 905.  AS STATED BY JUDGE
LOWELL IN IN RE SAWYER, SUPRA, "IF A VOTE IS INFLUENCED BY THE
EXPECTATION OF ADVANTAGE, THOUGH WITHOUT ANY POSITIVE PROMISE, IT
CANNOT BE CONSIDERED AN HONEST AND UNBIASED VOTE."  THAT RULE OF
COMPOSITIONS IS BUT PART OF THE GENERAL RULE OF "EQUALITY BETWEEN
CREDITORS" (CLARKE V. ROGERS, 228 U.S. 534, 548) APPLICABLE IN ALL
BANKRUPTCY PROCEEDINGS.  THAT PRINCIPLE HAS BEEN IMBEDDED BY CONGRESS
IN CH. IX BY THE EXPRESS PROVISION AGAINST UNFAIR DISCRIMINATION.  THAT
PRINCIPLE AS APPLIED TO THIS CASE NECESSITATES A REVERSAL.  IN ABSENCE
OF A FINDING THAT THE AGGREGATE EMOLUMENTS RECEIVABLE BY THE CRUMMER
INTERESTS WERE REASONABLE, MEASURED BY THE SERVICES RENDERED, IT CANNOT
BE SAID THAT THE CONSIDERATION ACCRUING TO THEM, UNDER OR AS A
CONSEQUENCE OF THE ADOPTION OF THE PLAN, LIKEWISE ACCRUED TO ALL OTHER
CREDITORS OF THE SAME CLASS.  ACCORDINGLY, THE IMPRIMATUR OF THE
FEDERAL COURT SHOULD NOT HAVE BEEN PLACED ON THIS PLAN.  THE FACT THAT
THE VAST MAJORITY OF SECURITY HOLDERS MAY HAVE APPROVED A PLAN IS NOT
THE TEST OF WHETHER THAT PLAN SATISFIES THE STATUTORY STANDARD.  THE
FORMER IS NOT A SUBSTITUTE FOR THE LATTER.  THEY ARE INDEPENDENT.  SEE
CASE V. LOS ANGELES LUMBER PRODUCTS CO., SUPRA, PP. 114-115. 

SINCE THE CAUSE MUST BE REMANDED, THERE ARE TWO OTHER MATTERS WHICH
SHOULD BE MENTIONED.  SECTION 83(D), 11 U.S.C. SEC. 403(D), PROVIDES
THAT IN COMPUTING THE STATUTORY TWO-THIRDS VOTE NECESSARY FOR
CONFIRMATION OF A PLAN ALL CLAIMS "OWNED, HELD, OR CONTROLLED" BY THE
CITY SHALL BE EXCLUDED.  SO FAR AS APPEARS, THE CLAIMS HELD BY THE
CRUMMER INTERESTS WERE NOT OWNED BY OR HELD FOR THE CITY.  YET IT IS BY
NO MEANS CLEAR THAT THEY WERE NOT "CONTROLLED" BY THE CITY WITHIN THE
MEANING OF THE ACT.  CLAIMS HELD BY A CITY'S FISCAL AGENT PRESUMPTIVELY
WOULD SEEM TO FALL IN THAT PROHIBITED CATEGORY.  THE ABUSE AT WHICH THE
ACT IS AIMED IS NOT CONFINED TO THOSE CASES WHERE THE HOLDER OF THE
CLAIMS IS AN AGENT OF THE CITY WITHIN THE STRICT RULES OF RESPONDEAT
SUPERIOR.  RATHER, THE TEST IS WHETHER OR NOT THERE IS SUCH CLOSE
IDENTITY OF INTERESTS BETWEEN THE CLAIMANT AND THE CITY THAT THE
CLAIMANT'S ASSENT TO THE PLAN MAY FAIRLY BE SAID TO BE MORE THE PRODUCT
OF THE CITY'S INFLUENCE AND TO REFLECT MORE THE CITY'S DESIRES THAN AN
EXPRESSION OF AN INVESTOR'S INDEPENDENT, BUSINESS JUDGMENT.  HERE THERE
WAS SUCH A CLOSE IDENTITY OF INTERESTS BETWEEN CRUMMER AND THE CITY VIS
A-VIS THE REFUNDING AS TO RAISE GRAVE DOUBTS AS TO THE PROPRIETY OF
ALLOWING THOSE CLAIMS TO VOTE IN ANY EVENT.  THAT, HOWEVER, IS A
QUESTION FOR APPROPRIATE FINDINGS BY THE COURT SHOULD ANOTHER PLAN BE
PRESENTED.    PETITIONER ALSO URGES THAT THE FISCAL AGENCY CONTRACT
BETWEEN CRUMMER AND THE CITY WAS ILLEGAL UNDER THE DECISIONS OF THE
SUPREME COURT OF FLORIDA IN TAYLOR V. WILLIAMS, 142 FLA. 402, 562, 756;
195 SO. 175, 181, 184; 196 SO. 214, AND W.J. HOWEY CO. V. WILLIAMS, 142
FLA. 415, 562, 756; 195 SO. 181, 184; 196 SO. 214.  UNDER SEC.
83(E)(6), 11 U.S.C. SEC. 403(E)(6), THE COURT MUST BE SATISFIED THAT
THE CITY "IS AUTHORIZED BY LAW TO TAKE ALL ACTION NECESSARY TO BE TAKEN
BY IT TO CARRY OUT THE PLAN" BEFORE IT MAY ENTER A DECREE OF
CONFIRMATION.  PLAINLY THAT FINDING COULD NOT BE MADE IF IT WAS CLEAR,
FOR EXAMPLE, THAT A TAXPAYER COULD ENJOIN THE ISSUANCE OF THE NEW BONDS
OR THE LEVY OF ASSESSMENTS THEREFOR.  THE COURTS BELOW DID NOT PASS ON
THE APPLICABILITY OF THESE RECENT FLORIDA DECISIONS TO THIS FISCAL
AGENCY CONTRACT, SINCE THEY WERE DECIDED AFTER THE CIRCUIT COURT OF
APPEALS AFFIRMED THE ORDER OF CONFIRMATION.  NOR DO WE UNDERTAKE TO
DECIDE THE QUESTION, IN VIEW OF OUR DISPOSITION OF THE CASE.  IT IS,
HOWEVER, A RELEVANT INQUIRY TO BE MADE BY THE DISTRICT COURT AS, IF AND
WHEN ANOTHER PLAN OF COMPOSITION IS PRESENTED, WHICH DIRECTLY OR
INDIRECTLY INVOLVES ANY SUCH FISCAL AGENCY CONTRACT. 

FOR THE REASONS STATED WE REVERSE THE JUDGMENT BELOW AND REMAND THE
CAUSE TO THE DISTRICT COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

FN1  THE ACT OF AUGUST 16, 1937(50 STAT. 653) UNDER WHICH THE
PETITION WAS FILED EXPIRED JUNE 30, 1940, EXCEPT IN RESPECT TO
PROCEEDINGS INITIATED ON OR PRIOR TO THAT DATE.  THAT ACT, HOWEVER, WAS
AMENDED BY THE ACT OF JUNE 28, 1940(76TH CONG. 3D SESS., C. 438, 54
STAT. 667), WHICH, INTER ALIA, EXTENDED FOR ANOTHER TWO YEARS THE TIME
FOR FILING PETITIONS. 

FN2  R.E. CRUMMER & CO. IS A DELAWARE CORPORATION ORGANIZED PRIMARILY
TO REPRESENT CLIENTS OF AN AFFILIATE (SEE INFRA, NOTE 4) WHO HAD
PURCHASED BONDS IN FLORIDA.  BEGINNING IN 1931, IT HAD HANDLED THE DEBT
PROBLEMS OF OVER 200 TAXING UNITS. 

FN3  UNDER THE ORIGINAL PLAN ALL SUCH ACCRUED INTEREST COUPONS WERE
TO BE ACQUIRED BY CRUMMER AT 33 1/3% OF THE FACE AMOUNT, WHICH WHEN
REFUNDED INTO NEW BONDS, WOULD BE HELD BY IT SUBJECT TO PURCHASE BY THE
CITY AT NOT EXCEEDING 50% OF THE FACE THEREOF FOR THE FIRST SIX MONTHS,
60% FOR THE SUCCEEDING SIX MONTHS, 70% FOR THE NEXT SIX MONTHS, AND 75%
FOR THE FOLLOWING SIX MONTHS.  DUE TO FEARS OF ILLEGALITY, THE PLAN WAS
MODIFIED.  AS MODIFIED IT PROVIDED THAT COMPENSATION OF THE FISCAL
AGENT WAS TO BE 4% OF THE PRINCIPAL DEBT WITH THE RIGHT OF ANY CREDITOR
TO SELL TO CRUMMER THE INTEREST ACCRUALS AT 33 1/3% OF THEIR FACE
AMOUNT.  IN THE LATTER EVENT THE CHARGE AGAINST HIM WAS REDUCED TO 2%
AND CRUMMER HELD THE SECURITIES SO OBTAINED SUBJECT TO THE RIGHT OF THE
CITY TO ACQUIRE THEM AT THE RATES ABOVE INDICATED.  THE FISCAL AGENT
ESTIMATED THAT IT WOULD GET SUBSTANTIALLY THE SAME AMOUNT OF MONEY OUT
OF THE PLAN WHICHEVER OPTION THE BONDHOLDERS ELECTED. 

INTEREST ACCRUALS WERE TO BE ESCROWED.  PROCEEDS OF THE COLLECTION OF
DELINQUENT TAXES WERE TO BE REMITTED TO THE ESCROW AGENT WHO WOULD
REDUCE THE AMOUNT OWED BY THE CITY UNDER THE ESCROW BY SUCH AMOUNT AS
WOULD RESULT IN THE PARTICULAR PROCEEDS CONSTITUTING A PRO TANTO
PAYMENT AND DISCHARGE AT 50% OF PAR DURING THE FIRST SIX MONTHS, 60%
DURING THE NEXT SIX MONTHS, 70% DURING THE NEXT SIX MONTHS, AND 75%
DURING THE FOLLOWING SIX MONTHS. 

THUS IN EFFECT THE INTEREST ACCRUALS COULD BE OFFSET AGAINST
DELINQUENT TAXES, THE CITY BEING ABLE TO RETIRE SOME OF ITS DEBT AT
LESS THAN PAR IF IT COULD STIMULATE TAX COLLECTIONS.  THE PROCEEDS
RECEIVED BY THE ESCROW AGENT WERE TO BE HELD FOR THE BENEFIT OF THE
DEPOSITORS. 

FN4  R.E. CRUMMER & CO. AND BROWN-CRUMMER INVESTMENT CO. R.E. CRUMMER
WAS PRESIDENT OF BOTH.  A MAJORITY OF THE BOARDS OF BOTH CORPORATIONS
WAS IDENTICAL.  THE CRUMMER INTERESTS HAD ACQUIRED OVER A THIRD OF THE
CLAIMS. 

FN5  THERE WERE OTHER EMOLUMENTS FOR CRUMMER.  IT WAS GRANTED
"EXCLUSIVE AUTHORITY" TO ACT FOR AND ON BEHALF OF THE CITY FOR A PERIOD
OF THREE YEARS "IN ALL MATTERS CONNECTED WITH, OR RELATING TO, THE
EXCHANGE."  AND IN CASE ANY BONDS OR COUPONS WERE PRESENTED FOR PAYMENT
OR SUIT INSTITUTED THEREON THE CITY AGREED TO GIVE CRUMMER NOTICE
BEFORE ANY TERMS OF SETTLEMENT WERE AGREED UPON.  THESE PROVISIONS, THE
FACT THAT THE CRUMMER INTERESTS HOLD LARGE BLOCKS OF CLAIMS ACQUIRED AT
DEFAULT PRICES, THE LIKELY INTEREST OF CRUMMER IN THE ACCRUED COUPONS
AND ITS STRATEGIC POSITION ALL POINT TOWARDS FUTURE SPECULATIVE
POSSIBILITIES WHICH ARE NOT INCONSIDERABLE, WHATEVER MAY BE SAID OF
THEIR UNHEALTHY IMPACT ON THE CITY AND THE PUBLIC INVESTORS ALIKE. 
..END :

















DRIVERS' UNION V. LAKE VALLEY CO., 311 U.S. 91 


NO. 20.  ARGUED OCTOBER 21, 22, 1940.  - DECIDED NOVEMBER 18, 1940.  -
108 F.2D 436, REVERSED - DISTRICT COURT AFFIRMED. 


A UNION OF MILK-WAGON DRIVERS, EMPLOYED BY LOCAL DAIRIES IN DELIVERING
MILK, MAINLY FROM DOOR TO DOOR TO RETAIL CUSTOMERS, PICKETED A LARGE
NUMBER OF RETAIL STORES WHICH SOLD, AT CUT PRICES ON THE CASH-AND-CARRY
PLAN, MILK BOUGHT AT WHOLESALE FROM INDIVIDUALS, CALLED "VENDORS," WHO
DELIVERED IT BY THEIR OWN TRUCKS FROM SUPPLIES BOUGHT FROM OTHER
DAIRIES UNDER AN ARRANGEMENT WHEREBY THE MILK THAT THEY DID NOT SELL
WAS TAKEN BACK AT FULL PURCHASE PRICE BY THE DAIRIES THAT SUPPLIED IT.
THIS "VENDOR SYSTEM" HAD MADE INROADS ON THE BUSINESS OF UNION DAIRIES
AND AFFECTED UNFAVORABLY THE WAGES AND EMPLOYMENT OF MEMBERS OF THE
DRIVERS' UNION.  THE UNION CLAIMED THAT IT CONSTITUTED UNFAIR
COMPETITION - A DEVICE TO ESCAPE UNION WAGES AND UNION WORKING
CONDITIONS - AND THROUGH THE PICKETING IT SOUGHT TO COMPEL THE
"VENDORS" TO JOIN IT FOR THE PURPOSE OF IMPROVING THEIR WAGES AND
WORKING CONDITIONS.  TWO OF THE "CUT-PRICE" DAIRIES JOINED WITH AN
INDUSTRIAL UNION (ORGANIZED BY THEIR EMPLOYEES, INCLUDING "VENDORS")
AND A COOPERATIVE ASSOCIATION OF ANOTHER STATE FROM WHICH THEY OBTAINED
THEIR SUPPLIES OF MILK, IN A SUIT CHARGING THE DRIVERS' UNION AND ITS
OFFICERS WITH A CONSPIRACY TO RESTRAIN INTERSTATE COMMERCE IN MILK IN
VIOLATION OF THE SHERMAN ACT, AND SEEKING AN INJUNCTION AGAINST THE
PICKETING AND ATTENDANT TRESPASSES.  HELD: 

1.  THAT THERE EXISTED A "LABOR DISPUTE" WITHIN THE MEANING OF THE
NORRIS-LAGUARDIA ACT.  P. 96. 

2.  IT WAS NOT MATERIAL IN THIS REGARD THAT THE ATTEMPT OF THE
DRIVERS' UNION TO UNIONIZE THE "VENDORS" WAS UPON CONDITION THAT, IF
ADMITTED TO THAT UNION, THEY WOULD CEASE TO HANDLE MILK AS "VENDORS." 
P. 98. 

3.  THE CONTROVERSY DID NOT CEASE TO BE A "LABOR DISPUTE" WHEN THE
PLAINTIFF DAIRIES' EMPLOYEES BECAME ORGANIZED.  P. 99. 

4.  THE REQUIREMENTS OF THE NORRIS-LAGUARDIA ACT NOT HAVING BEEN MET,
THE DISTRICT COURT HAD NO JURISDICTION TO GRANT AN INJUNCTION,
NOTWITHSTANDING THAT THE SUIT WAS BASED UPON ALLEGED VIOLATION OF THE
SHERMAN ACT.  P. 100. 

MILK WAGON DRIVERS' UNION, LOCAL NO. 753 ET AL. V. LAKE VALLEY FARM
PRODUCTS, INC. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 309 U.S. 649, TO REVIEW A DECREE WHICH REVERSED A DECREE
DISMISSING, FOR WANT OF JURISDICTION, A BILL PRAYING FOR AN
INJUNCTION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THIS PROCEEDING PRESENTS TWO QUESTIONS:  FIRST, DOES THERE HERE EXIST
A "LABOR DISPUTE" WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT?  FN1
SECOND, IF THERE IS A "LABOR DISPUTE," MUST THE JURISDICTIONAL
PREREQUISITES OF THE NORRIS-LAGUARDIA ACT  FN2  BE COMPLIED WITH BEFORE
INJUNCTIVE PROCESS CAN BE USED AGAINST A LABOR UNION ACCUSED OF
VIOLATING THE SHERMAN ANTI-TRUST ACT?  FN3 

THE DISTRICT COURT FOUND THAT THIS WAS A CASE "INVOLVING OR GROWING
OUT OF A LABOR DISPUTE"; THAT PLAINTIFFS (RESPONDENTS HERE) HAD FAILED
TO SATISFY THE PREREQUISITES OF THE NORRIS-LAGUARDIA ACT; AND THAT,
ACCORDINGLY, THE COURT WAS WITHOUT JURISDICTION TO GRANT EITHER A
TEMPORARY OR A PERMANENT INJUNCTION.  THE CIRCUIT COURT OF APPEALS
REVERSED, ONE JUDGE DISSENTING; FN4  IT WAS THE OPINION OF THAT COURT
THAT THE CASE DID NOT GROW OUT OF A LABOR DISPUTE, AND THAT EVEN IF IT
HAD, A FEDERAL COURT WOULD HAVE JURISDICTION TO ENJOIN IF THE SHERMAN
ACT HAD BEEN VIOLATED.  FN5 BECAUSE OF THE IMPORTANCE OF THESE
QUESTIONS, WE GRANTED CERTIORARI.  FN6 

THE NORRIS-LAGUARDIA ACT APPLIES TO LABOR DISPUTES BETWEEN "PERSONS
WHO ARE ENGAGED IN THE SAME INDUSTRY, TRADE, CRAFT OR OCCUPATION; OR
HAVE DIRECT OR INDIRECT INTERESTS HEREIN."  FN7  HERE, ALL OF THE
PARTIES HAVE "DIRECT OR INDIRECT INTERESTS" IN THE PRODUCTION,
PROCESSING, SALE, AND DISTRIBUTION OF MILK.  PLAINTIFFS, WHO SOUGHT THE
INJUNCTION, WERE FOUR:  ONE WAS THE CHICAGO LOCAL OF A C.I.O. UNION,
THE AMALGAMATED DAIRY WORKERS; TWO WERE CHICAGO DAIRIES WHOSE MILK WAS
PROCESSED AND DISTRIBUTED BY MEMBERS OF THE C.I.O. UNION; FN8  THE
FOURTH WAS A WISCONSIN COOPERATIVE ASSOCIATION WHICH SUPPLIED MILK TO
THE PLAINTIFF DAIRIES.  DEFENDANTS WERE THE CHICAGO LOCAL OF THE A.F.
OF L. MILK WAGON DRIVERS' UNION, AND ITS OFFICIALS.  THE DEFENDANT
UNION IS A CRAFT ORGANIZATION, LIMITING ITS MEMBERSHIP TO MILK WAGON
DRIVERS; THE PLAINTIFF UNION IS ORGANIZED ALONG INDUSTRIAL LINES, AND
ITS MEMBERSHIP CONSISTS OF ALL KINDS OF DAIRY WORKERS, INCLUDING INSIDE
HELP, OFFICE WORKERS, WAGON DRIVERS, HELPERS, SWEEPERS AND JANITORS. 

A BRIEF STATEMENT AS TO THE BACKGROUND OF THE CONTROVERSY IS
NECESSARY FOR A BETTER UNDERSTANDING OF THE ISSUES.  THE CHICAGO LOCAL
OF THE A.F. OF L. MILK WAGON DRIVERS' UNION WAS ORGANIZED IN 1902. 
SINCE THE ORGANIZATION, WORKING CONDITIONS OF THE MEMBERS HAVE BEEN
MATERIALLY IMPROVED; HOURS HAVE BEEN SHORTENED, WAGES HAVE BEEN RAISED,
AND VACATION PERIODS WITH FULL PAY HAVE BEEN SECURED.  THESE BETTER
TERMS AND CONDITIONS OF EMPLOYMENT HAVE MOVED CONCURRENTLY WITH A MORE
OR LESS STEADY INCREASE IN UNION MEMBERSHIP AND INFLUENCE.  AT THE TIME
THIS LITIGATION WAS BEGUN THE UNION HAD MORE THAN FIVE THOUSAND
MEMBERS. 

WITH THE APPROACH AND CONTINUANCE OF THE DEPRESSION OF THE EARLY
THIRTIES, THE MILK BUSINESS, LIKE OTHER INDUSTRIES, WAS IN ACUTE
DISTRESS.  LOSS OF PROFITS FROM DECREASED DEMAND STIMULATED DAIRIES TO
DEVISE NEW AND CHEAPER METHODS TO OBTAIN AND SERVE CUSTOMERS.  UNDER
THE LONG EXISTING PRACTICE IN CHICAGO, DAIRIES HAD OWNED MILK TRUCKS
AND WAGONS, AND HAD OPERATED THEM WITH EMPLOYEE DRIVERS - CHIEFLY
MEMBERS OF THE A.F. OF L. LOCAL.  A MAJOR PART OF THE BUSINESS
CONSISTED OF DOOR-TO-DOOR DELIVERIES TO RETAIL CUSTOMERS.  SOME OF THE
A.F. OF L. DRIVERS ALSO DELIVERED MILK TO RETAIL STORES, THOSE STORES
IN TURN SELLING TO THEIR CUSTOMERS.  WHAT APPEARS TO HAVE BEEN AN
INSIGNIFICANT PART OF THE MILK SUPPLY OF PRE-DEPRESSION CHICAGO WAS
DELIVERED BY RETAIL MILK "PEDDLERS" WHO BOUGHT FROM THE DAIRY AT
WHOLESALE AND SOLD AT RETAIL FROM THEIR OWN TRUCKS OR WAGONS.  BUT WITH
THE DEPRESSION THIS PRACTICE OF SALE BY "PEDDLERS" EXPANDED, BRANCHED
OUT INTO SALES TO RETAIL STORES, AND DEVELOPED INTO WHAT IS CALLED THE
"VENDOR SYSTEM" - AROUND WHICH REVOLVES THE PRESENT CONTROVERSY. 
RETAIL PEDDLING STARTED THE CONTROVERSY; AT THE ROOT OF THE CONFLICT,
HOWEVER, IS THIS LATER EMERGING "VENDOR SYSTEM," UNDER WHICH "VENDORS"
DELIVERED MILK AT WHOLESALE TO RETAIL STORES.  UNDER THIS SYSTEM,
PLAINTIFF DAIRIES MAKE DAILY SALES OF MILK TO INDIVIDUALS OWNING THEIR
OWN TRUCKS.  THESE INDIVIDUALS, CALLED "VENDORS," RESELL THE MILK TO
RETAIL STORES.  UNSOLD MILK IS NO LOSS TO THE "VENDOR," BECAUSE THE
DAIRY TAKES IT BACK AT THE FULL PURCHASE PRICE. 

WITH THE SPREAD OF THIS NEW COMPETITIVE SYSTEM, THE BUSINESS OF THE
DAIRIES EMPLOYING UNION MILK WAGON DRIVERS DECREASED.  MANY OF THE
UNION DRIVERS LOST THEIR JOBS AND WERE DEPENDENT UPON THEIR UNION'S
RELIEF FUNDS AND UPON PUBLIC RELIEF AGENCIES FOR THEIR SUPPORT.  HOW
MANY OF THOSE WHO LOST THEIR JOBS BECAME UNEMPLOYED AS THE RESULT OF
THE DEPRESSION AND HOW MANY WERE DISPLACED BY THE GROWTH OF THE "VENDOR
SYSTEM" CANNOT BE DETERMINED; BOTH CAUSES UNDOUBTEDLY CONTRIBUTED. 

THE STORES BUYING MILK FROM PLAINTIFF DAIRIES THROUGH THESE VENDORS
MADE A PRACTICE OF SELLING IT BELOW THE STANDARD PRICES CHARGED FOR
MILK SUPPLIED BY DAIRIES EMPLOYING A.F. OF L. DRIVERS.  DEFENDANT UNION
AND ITS MEMBERS CLAIMED THAT THE REASON THE PRICE COULD BE CUT WAS THAT
THE VENDORS WORKED LONG HOURS, UNDER UNFAVORABLE WORKING CONDITIONS,
WITHOUT VACATIONS, AND WITH VERY LOW EARNINGS.  ON THE OTHER HAND, THE
VENDORS AND THE DAIRIES UTILIZING THEIR SERVICES ASSERTED THAT THE
REASON FOR THE LOWER PRICES WAS THAT THE VENDOR SYSTEM WAS MORE
ECONOMICAL, THAT UNDER IT MORE MILK COULD BE DELIVERED BY WHOLESALE TO
THE CASH AND CARRY CUT-RATE STORES, AND THAT SUCH DISTRIBUTION COST
LESS EVEN ON THE SAME WAGE LEVEL THAN DID DOOR-TO-DOOR DISTRIBUTION. 
AS THE VENDOR SYSTEM MADE INCREASING INROADS ON THE BUSINESS OF THE
UNION DAIRIES, THE OPPOSITION OF THE DEFENDANT UNION BECAME MORE
ACTIVE.  ITS MEMBERS INSISTED THAT THE VENDOR SYSTEM CONSTITUTED UNFAIR
COMPETITION, DEPRESSING LABOR STANDARDS.  TO COMBAT IT, THEY ATTEMPTED
AS THE DISTRICT COURT FOUND FROM THE FACTS - TO UNIONIZE THE EMPLOYEES
AND VENDORS OF THE DAIRIES UTILIZING THIS PLAN.  NOT SUCCEEDING IN THIS
ATTEMPT, IN 1934 THEY BEGAN PICKETING THE SO-CALLED CUT-RATE STORES. 
THE PICKETING WAS CARRIED ON ALMOST CONTINUOUSLY UNTIL THIS SUIT WAS
FILED.  PICKETS USUALLY CARRIED PLACARDS DENOUNCING CUT-RATE STORES AS
UNFAIR TO THE A.F. OF L. LOCAL.  DURING THE YEARS IN WHICH THIS STRIFE
CONTINUED, STORE WINDOWS WERE BROKEN, PERSONAL ALTERCATIONS OCCURRED,
CHARGES AND COUNTER-CHARGES WERE FREQUENT, ARRESTS WERE MADE AND COURT
PROCEEDINGS INSTITUTED.  FINALLY, IN MARCH, 1938 - ABOUT TWO MONTHS
BEFORE THE COMPLAINT WAS FILED IN THIS CASE - THE VENDORS AND THE OTHER
EMPLOYEES OF THE PLAINTIFF DAIRIES ORGANIZED THE PLAINTIFF UNION UNDER
A C.I.O. CHARTER.  THEREUPON SIGNS WERE PLACED INSIDE THE CUT-RATE
STORE WINDOWS, ANNOUNCING THAT THE MILK HANDLED BY THE STORES WAS
PROCESSED AND DELIVERED BY MEMBERS OF THE PLAINTIFF UNION.  BUT THIS
DID NOT SETTLE THE LONG-STANDING CONTROVERSY; THE PICKETING CONTINUED,
AND THIS SUIT FOLLOWED. 

THE PETITION FOR AN INJUNCTION RESTS PRIMARILY UPON THE CHARGE THAT
THE DEFENDANT UNION AND ITS OFFICIALS HAD ENTERED INTO A CONSPIRACY TO
INTERFERE WITH AND RESTRAIN INTERSTATE COMMERCE IN VIOLATION OF THE
SHERMAN AND CLAYTON ACTS.  IT IS CONTENDED BY PLAINTIFFS THAT THE
CONTROVERSY IS NOT A LABOR DISPUTE WITHIN THE MEANING OF THE NORRIS
LAGUARDIA ACT, BUT IS AN UNLAWFUL SECONDARY BOYCOTT OF WHICH THE
PURPOSE IS NOT TO UNIONIZE THE VENDORS BUT TO OBTAIN FOR THE
DEFENDANTS' EMPLOYERS A CHICAGO MILK MONOPOLY AT A SUSTAINED HIGH PRICE
LEVEL, CONTRARY TO THE SHERMAN ACT. 

FIRST.  THE COMPLAINT ON ITS FACE IS PROBABLY SUFFICIENT TO SHOW THAT
A LABOR DISPUTE EXISTED.  FN9  WE NEED NOT DECIDE THAT POINT, HOWEVER,
FOR THE CASE PROCEEDED TO FINAL JUDGMENT.  DEFENDANTS FILED AN ANSWER,
AND THE COURT REFERRED PLAINTIFFS' MOTION FOR A TEMPORARY INJUNCTION TO
A SPECIAL MASTER.  THE MASTER CONDUCTED EXTENSIVE HEARINGS, AND HEARD
EVIDENCE OFFERED BY BOTH SIDES.  IN HIS REPORT, THE MASTER FOUND, IN
THE LANGUAGE OF THE NORRIS-LAGUARDIA ACT, THAT THE CASE AROSE OUT OF
AND INVOLVED A LABOR "DISPUTE BETWEEN ONE OR MORE EMPLOYERS OR
ASSOCIATIONS OF EMPLOYERS AND ONE OR MORE EMPLOYEES OR ASSOCIATIONS OF
EMPLOYEES," ALL OF WHOM WERE ENGAGED IN THE SAME INDUSTRY, TRADE, CRAFT
OR OCCUPATION, NAMELY, THE MILK INDUSTRY; THAT DEFENDANTS HAD ATTEMPTED
FOR SOME TIME TO UNIONIZE THE EMPLOYEES OF THE PLAINTIFF DAIRIES AND OF
OTHER CUT-RATE DAIRIES, AND THAT THE PICKETING WAS AN EFFORT ON THE
PART OF THE DEFENDANTS TO COMPEL THE VENDORS AND WAGON DRIVERS OF THE
DAIRIES TO JOIN THE DEFENDANT UNION FOR THE PURPOSE OF IMPROVING
WORKING CONDITIONS AND WAGES OF VENDORS; THAT THE WORKING HOURS OF THE
PLAINTIFF DAIRIES' EMPLOYEES WERE LONGER AND THE WAGE SCALES LOWER THAN
THE UNION STANDARDS.  FN10  THE DISTRICT COURT ADOPTED THE FINDINGS OF
THE MASTER, AND MADE FURTHER FINDINGS OF ITS OWN. 

IT IS NOT MATERIAL, AS THE CIRCUIT COURT OF APPEALS THOUGHT, THAT
DEFENDANTS' ATTEMPT TO UNIONIZE THE VENDORS WAS UPON THE CONDITION THAT
THEY WOULD CEASE TO HANDLE MILK AS "VENDORS" IF ADMITTED TO MEMBERSHIP
IN THE UNION.  THERE ARE FEW INSTANCES OF ATTEMPTED UNIONIZATION IN
WHICH A CHANGE TO UNION MEMBERSHIP WOULD NOT REQUIRE SOME ALTERATION IN
THE CONDITIONS OR TERMS OF EMPLOYMENT.  UNION MEMBERSHIP CONTEMPLATES
CHANGE - CHANGE WHICH IT IS BELIEVED WILL BRING ABOUT BETTER WORKING
CONDITIONS FOR THE EMPLOYEES.  MOREOVER, THE EVIDENCE OFFERED BY THE
PLAINTIFFS THEMSELVES SHOWS THAT MEMBERSHIP IN DEFENDANT UNION WOULD
HAVE INVOLVED NO SUBSTANTIAL CHANGE IN THE VENDORS' RELATIONSHIP TO THE
DAIRIES.  TRUCK DRIVERS EMPLOYED BY DAIRIES WERE ELIGIBLE FOR
MEMBERSHIP IN THE DEFENDANT UNION, AND PLAINTIFFS' EVIDENCE SHOWED THAT
THE "VENDORS" WERE ACTUALLY REGARDED AS EMPLOYEES OF THE PLAINTIFF
DAIRIES.  THE PLAINTIFFS OFFERED AS A PART OF THEIR EVIDENCE THE
ARTICLES OF AGREEMENT BETWEEN THE PLAINTIFF UNION AND THE PLAINTIFF
DAIRIES; EACH OF THOSE CONTRACTS CONTAINS THE FOLLOWING PROVISION:
"THE TERM 'EMPLOYEE,' AS USED IN THIS AGREEMENT SHALL MEAN ALL
WHOLESALE AND RETAIL ROUTE SALESMEN OR DRIVERS AND THEIR HELPERS AND
ASSISTANTS; ALL MILK DISTRIBUTORS COMMONLY REFERRED TO AS 'VENDORS';
ALL PERSONS EMPLOYED IN THE SALE AND DISTRIBUTION OF THE COMPANY'S
PRODUCTS; ...  "  AND EACH AGREEMENT PROVIDED FOR A CLOSED SHOP AND
GAVE TO PLAINTIFF UNION THE EXCLUSIVE RIGHT TO REPRESENT ALL THE
DAIRY'S EMPLOYEES, INCLUDING THE VENDORS, FOR PURPOSES OF NEGOTIATING
ON "ALL QUESTIONS OF WAGES, HOURS, AND CONDITIONS OF EMPLOYMENT THAT
SHALL PREVAIL IN THE COMPANY'S BUSINESS."  FN11 

WHETHER RIGHTLY OR WRONGLY, THE DEFENDANT UNION BELIEVED THAT THE
"VENDOR SYSTEM" WAS A SCHEME OR DEVICE UTILIZED FOR THE PURPOSE OF
ESCAPING THE PAYMENT OF UNION WAGES AND THE ASSUMPTION OF WORKING
CONDITIONS COMMENSURATE WITH THOSE IMPOSED UNDER UNION STANDARDS.  TO
SAY, AS THE CIRCUIT COURT OF APPEALS DID, THAT THE CONFLICT HERE IS NOT
A GOOD FAITH LABOR ISSUE, AND THAT THEREFORE THERE IS NO "LABOR
DISPUTE," IS TO IGNORE THE STATUTORY DEFINITION OF THE TERM; TO SAY,
FURTHER, THAT THE CONDITIONED ABANDONMENT OF THE VENDOR SYSTEM, UNDER
THE CIRCUMSTANCES, WAS AN ISSUE UNRELATED TO LABOR'S EFFORTS TO IMPROVE
WORKING CONDITIONS, IS TO SHUT ONE'S EYES TO THE EVERYDAY ELEMENTS OF
INDUSTRIAL STRIFE. 

NOR DOES THE CONTROVERSY CEASE TO BE A LABOR DISPUTE, AS THE CIRCUIT
COURT OF APPEALS THOUGHT, BECAUSE THE PLAINTIFF DAIRIES' EMPLOYEES
BECAME ORGANIZED.  FN12  THIS MERELY TRANSFORMED THE DEFENDANTS'
ACTIVITIES FROM AN EFFORT TO ORGANIZE NON-UNION MEN TO A CONFLICT WHICH
INCLUDED A CONTROVERSY BETWEEN TWO UNIONS.  A CONTROVERSY "CONCERNING
THE ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING,
MAINTAINING, CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF
EMPLOYMENT" IS EXPRESSLY INCLUDED WITHIN THE DEFINITION OF A LABOR
DISPUTE IN THE NORRIS-LAGUARDIA ACT. 

THE DISTRICT COURT NOT ONLY FOUND THAT A LABOR DISPUTE EXISTED, BUT
ALSO FOUND THAT IT WAS WITHOUT JURISDICTION TO GRANT AN INJUNCTION
BECAUSE THE REQUIREMENTS OF THE NORRIS-LAGUARDIA ACT HAD NOT BEEN MET. 
WE DO NOT UNDERSTAND THAT THE CIRCUIT COURT OF APPEALS OVERTURNED THIS
FINDING.  THAT COURT SAID:  "AGAIN, IF JURISDICTION WERE CONCEDED AND
THERE WAS A LABOR DISPUTE INVOLVED, THEN IT IS QUITE DOUBTFUL IF
APPELLANTS COULD RECOVER BECAUSE THEY HAVE NOT IN EVERY RESPECT
COMPLIED WITH THE REQUIREMENTS OF THE NORRIS-LAGUARDIA ACT."  WE AGREE
WITH THE DISTRICT COURT THAT THIS CASE GROWS OUT OF A LABOR DISPUTE. 
SINCE THE REQUIREMENTS OF THE NORRIS-LAGUARDIA ACT HAVE NOT BEEN MET,
THE COURT DID NOT HAVE JURISDICTION TO GRANT AN INJUNCTION UNLESS BY
VIRTUE OF THAT PHASE OF THE BILL WHICH CHARGED A VIOLATION OF THE
SHERMAN ANTI-TRUST ACT. 

SECOND.  THE COURT OF APPEALS CONCLUDED THAT THE DEFENDANTS'
PICKETING ACTIVITIES CONSTITUTED A SECONDARY BOYCOTT IN VIOLATION OF
THE SHERMAN ANTI-TRUST ACT, AND THAT FOR THIS REASON, REGARDLESS OF THE
NORRIS-LAGUARDIA ACT, THE DISTRICT COURT HAD JURISDICTION TO GRANT AN
INJUNCTION EVEN THOUGH THE CASE AROSE OUT OF OR INVOLVED A LABOR
DISPUTE.  FN13  IN THIS THE COURT WAS IN ERROR.    NO SPECIFIC LANGUAGE
OF THE NORRIS-LAGUARDIA ACT IS POINTED TO IN SUPPORT OF THE THEORY THAT
THE ACT WAS TO BE INAPPLICABLE WHERE INJUNCTIONS ARE SOUGHT AGAINST
LABOR UNIONS CHARGED WITH VIOLATING THE SHERMAN ACT IN THE COURSE OF
LABOR DISPUTES.  ON THE CONTRARY, SEC. 1 OF THE NORRIS-LAGUARDIA ACT
PROVIDES THAT "NO COURT OF THE UNITED STATES  ...  SHALL HAVE
JURISDICTION TO ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT
INJUNCTION IN A CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE,
EXCEPT IN A STRICT CONFORMITY WITH THE PROVISIONS OF THIS ACT."  THIS
UNEQUIVOCAL JURISDICTIONAL LIMITATION IS REITERATED IN OTHER SECTIONS
OF THE ACT.  THE NORRIS-LAGUARDIA ACT - CONSIDERED AS A WHOLE AND IN
ITS VARIOUS PARTS - WAS INTENDED DRASTICALLY TO CURTAIL THE EQUITY
JURISDICTION OF FEDERAL COURTS IN THE FIELD OF LABOR DISPUTES.  AND
THIS COURT HAS SAID THAT "THE LEGISLATIVE HISTORY OF THE ACT
DEMONSTRATES THAT IT WAS THE PURPOSE OF THE CONGRESS FURTHER TO EXTEND
THE PROHIBITIONS OF THE CLAYTON ACT RESPECTING THE EXERCISE OF
JURISDICTION BY FEDERAL COURTS AND TO OBVIATE THE RESULTS OF THE
JUDICIAL CONSTRUCTION OF THAT ACT."  FN14 

THE COMMITTEE REPORTS ON THE NORRIS-LAGUARDIA ACT REVEAL THAT MANY OF
THE INJUNCTIONS WHICH WERE CONSIDERED MOST OBJECTIONABLE BY THE
CONGRESS WERE BASED UPON COMPLAINTS CHARGING CONSPIRACIES TO VIOLATE
THE SHERMAN ANTI-TRUST ACT.  TO END THE GRANTING OF INJUNCTIONS OF THIS
TYPE, SEC. 5 OF THE NORRIS-LAGUARDIA ACT DEPRIVED FEDERAL COURTS OF
JURISDICTION TO ISSUE RESTRAINING ORDERS OR INJUNCTIONS "UPON THE
GROUND THAT ANY OF THE PERSONS PARTICIPATING OR INTERESTED IN A LABOR
DISPUTE CONSTITUTE OR ARE ENGAGED IN AN UNLAWFUL COMBINATION OR
CONSPIRACY BECAUSE OF THE DOING IN CONCERT OF THE ACTS ENUMERATED  ...
"  IN REPORTING THE BILL, THE HOUSE JUDICIARY COMMITTEE SAID: "THIS
INJUNCTIONS HAVE BEEN ISSUED UNDER THE PROVISIONS OF THE ANTI-TRUST
LAWS, A NECESSARY PREREQUISITE FOR INVOKING THE JURISDICTION OF WHICH
IS A FINDING OF THE EXISTENCE OF A CONSPIRACY OR COMBINATION AND
WITHOUT WHICH NO INJUNCTION COULD HAVE BEEN ISSUED."  FN15 

THE NORRIS-LAGUARDIA ACT, PASSED IN 1932, IS THE CULMINATION OF A
BITTER POLITICAL, SOCIAL AND ECONOMIC CONTROVERSY EXTENDING OVER HALF A
CENTURY.  HOSTILITY TO "GOVERNMENT BY INJUNCTION" HAD BECOME THE
RALLYING SLOGAN OF MANY AND VARIED GROUPS.  INDEED, AS EARLY AS 1914
CONGRESS HAD RESPONDED TO A WIDESPREAD PUBLIC DEMAND THAT THE SHERMAN
ACT BE AMENDED, AND HAD PASSED THE CLAYTON ACT, ITSELF DESIGNED TO
LIMIT THE JURISDICTION OF FEDERAL COURTS TO ISSUE INJUNCTIONS IN CASES
INVOLVING LABOR DISPUTES.  BUT THE PROPONENTS OF THE NORRIS-LAGUARDIA
ACT FELT THAT THE JURISDICTIONAL LIMITATIONS OF THE CLAYTON ACT HAD
BEEN LARGELY NULLIFIED BY JUDICIAL DECISION.  THUS, THE SENATE
JUDICIARY COMMITTEE, REPORTING THE NORRIS-LAGUARDIA ACT, SAID:  "THAT
THERE HAVE BEEN ABUSES OF JUDICIAL POWER IN GRANTING INJUNCTIONS IN
LABOR DISPUTES IS HARDLY OPEN TO DISCUSSION.  THE USE OF THE INJUNCTION
IN SUCH DISPUTES HAS BEEN GROWING BY LEAPS AND BOUNDS.  ...  FOR
EXAMPLE, APPROXIMATELY 300 WERE ISSUED IN CONNECTION WITH THE RAILWAY
SHOPMEN'S STRIKE OF 1922,  ...  "  FN16  AND ON THE SAME SUBJECT THE
HOUSE JUDICIARY COMMITTEE SAID:  "THESE ARE THE SAME CHARACTER OF ACTS
WHICH CONGRESS IN SECTION 20 OF THE CLAYTON ACT OF OCTOBER 15, 1914,
SOUGHT TO RESTRICT FROM THE OPERATION OF INJUNCTIONS, BUT BECAUSE OF
THE INTERPRETATIONS PLACED BY THE COURTS ON THIS SECTION OF THE CLAYTON
ACT, THE RESTRICTIONS AS CONTAINED THEREIN HAVE BECOME MORE OR LESS
VALUELESS TO LABOR, AND THIS SECTION IS INTENDED BY MORE SPECIFIC
LANGUAGE TO OVERCOME THE QUALIFYING EFFECTS OF THE DECISIONS OF THE
COURTS IN THIS RESPECT."  FN17  AS AN EXAMPLE OF THE JUDICIAL
INTERPRETATION OF THE CLAYTON ACT WHICH THE COMMITTEE SAID WAS
"RESPONSIBLE IN PART FOR THIS AGITATION FOR FURTHER LEGISLATION," THE
COMMITTEE REFERRED TO THE CASES OF DUPLEX PRINTING PRESS CO. V.
DEERING, 254 U.S. 443, AMERICAN STEEL FOUNDRIES V. TRI-CITY CENTRAL
TRADES COUNCIL, 257 U.S. 184, AND BEDFORD CUT STONE CO. V. JOURNEYMEN
STONE CUTTERS' ASSOCIATION, 274 U.S. 37.  IN THESE CASES, THE
JURISDICTION OF THE COURTS TO GRANT INJUNCTIONS HAD BEEN UPHELD UPON
ALLEGATIONS AND FINDINGS THAT THE SHERMAN ANTI-TRUST ACT HAD BEEN
VIOLATED. 

WHETHER OR NOT ONE AGREES WITH THE COMMITTEES THAT THE CITED CASES
CONSTITUTED AN UNDULY RESTRICTED INTERPRETATION OF THE CLAYTON ACT, ONE
MUST AGREE THAT THE COMMITTEES AND THE CONGRESS MADE ABUNDANTLY CLEAR
THEIR INTENTION THAT WHAT THEY REGARDED AS THE MISINTERPRETATION OF THE
CLAYTON ACT SHOULD NOT BE REPEATED IN THE CONSTRUCTION OF THE NORRIS
LAGUARDIA ACT.  FOR US TO HOLD, IN THE FACE OF THIS LEGISLATION, THAT
THE FEDERAL COURTS HAVE JURISDICTION TO GRANT INJUNCTIONS IN CASES
GROWING OUT OF LABOR DISPUTES, MERELY BECAUSE ALLEGED VIOLATIONS OF THE
SHERMAN ACT ARE INVOLVED, WOULD RUN COUNTER TO THE PLAIN MANDATE OF THE
ACT AND WOULD REVERSE THE DECLARED PURPOSE OF CONGRESS.  FN18  THE
CIRCUIT COURT OF APPEALS WAS IN ERROR; ITS JUDGMENT IS REVERSED AND THE
JUDGMENT OF THE DISTRICT COURT DISMISSING THE BILL FOR INJUNCTION IS
AFFIRMED.  REVERSED. 

FN1  29 U.S.C. SECS. 101-115, 47 STAT. 70.  THE ACT DEFINES A LABOR
DISPUTE AS FOLLOWS:  "THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY
CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING THE
ASSOCIATION OR REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING,
MAINTAINING, CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF
EMPLOYMENT, REGARDLESS OF WHETHER OR NOT THE DISPUTANTS STAND IN THE
PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE."  29 U.S.C. SEC. 113(C),
47 STAT. 73. 

FN2  "NO COURT OF THE UNITED STATES, AS HEREIN DEFINED, SHALL HAVE
JURISDICTION TO ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT
INJUNCTION IN A CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE,
EXCEPT IN A STRICT CONFORMITY WITH THE PROVISIONS OF THIS ACT  ...  "
29 U.S.C. SEC. 101, 47 STAT. 70. 

FN3  15 U.S.C. SECS. 1-7, 26 STAT. 209, AS AMENDED.  SECTION 1
PROVIDES:  "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 HEREBY DECLARED TO BE
ILLEGAL." 

FN4 108 F.2D 436. 

FN5  THERE IS NO DIVERSITY OF CITIZENSHIP, AND FEDERAL JURISDICTION,
IF PRESENT AT ALL, EXISTS BECAUSE OF VIOLATION OF THE SHERMAN ACT.  THE
CONTENTION THAT INTERSTATE COMMERCE IS INVOLVED STEMS FROM THE FACT
THAT DEFENDANTS, IN CHICAGO, PICKETED RETAIL STORES SELLING MILK
PRODUCED IN WISCONSIN.  IN THE VIEW WE TAKE OF THE CASE, WE FIND IT
UNNECESSARY TO PASS ON THIS QUESTION. 

FN6  309 U.S. 649. 

FN7  29 U.S.C. SEC. 113(A), 47 STAT. 73. 

FN8  AS TO ONE OF THESE PLAINTIFF DAIRIES, THE COMPLAINT WAS
VOLUNTARILY DISMISSED. 

FN9  AMONG OTHER THINGS, THE COMPLAINT REVEALED THAT THE VENDORS WERE
MEMBERS OF THE C.I.O. UNION WHICH HAD MADE A CONTRACT TOUCHING ON THE
TERMS AND CONDITIONS OF EMPLOYMENT WITH THE PLAINTIFF DAIRIES, THAT THE
VENDORS' RIGHT OF ORGANIZATION AND COLLECTIVE REPRESENTATION FOR THE
PURPOSE OF AVOIDING INDUSTRIAL STRIFE WITH THE DEFENDANT UNION SHOULD
BE PROTECTED, AND THAT THE PLAINTIFF UNION AND THE DEFENDANT UNION WERE
IN ACTUAL COMPETITION IN OBTAINING EMPLOYMENT IN CONNECTION WITH THE
SALE AND DISTRIBUTION OF MILK IN THE CITY OF CHICAGO. 

FN10  PLAINTIFFS COMPLAIN OF THE FORM IN WHICH THIS LAST FINDING WAS
MADE.  UNDOUBTEDLY, THE MASTER FAILED TO USE APT LANGUAGE IN EXPRESSING
HIS CONCLUSIONS.  BUT THE LANGUAGE USED, READ IN ITS CONTEXT AND IN
CONJUNCTION WITH THE ENTIRE RECORD, REVEALS THAT THE OBJECTIONS TO THE
FINDING ARE WITHOUT FOUNDATION.  WHAT THE MASTER SAID IN HIS REPORT
WAS:  "THE MASTER IS OF THE OPINION THAT THE DISPUTE INVOLVED IN THE
INSTANT CASE BRINGS IT WITHIN THE PROVISIONS OF THE NORRIS-LAGUARDIA
ACT  ...  THE TESTIMONY OF DEFENDANTS' WITNESSES IS TO THE EFFECT THAT
THEY HAVE ATTEMPTED FOR SOME TIME TO UNIONIZE THE EMPLOYEES OF THE
PLAINTIFF DAIRIES AND OTHER CUT-RATE DAIRIES; THAT THE PICKETING
COMPLAINED OF HEREIN IS AN EFFORT TO COMPEL THE VENDORS, AND WAGON
DRIVERS EMPLOYED BY THE PLAINTIFF DAIRIES TO JOIN THE DEFENDANT UNION
FOR THE PURPOSE OF IMPROVING WORKING CONDITIONS AND WAGES OF SAID
VENDORS AND EMPLOYEES OF THE PLAINTIFF DAIRIES, AND THAT THE WORKING
HOURS AND WAGE SCALE OF PLAINTIFF DAIRY'S EMPLOYEES IS LOWER THAN THE
UNION SCALE." 

FN11  ON THE SUBJECT OF THE ACTUAL STATUS OF THE VENDORS, THE
PRESIDENT OF ONE OF THE PLAINTIFF DAIRIES TESTIFIED AS FOLLOWS: 

"THE WITNESS (SIGFRIED WEISS, PRESIDENT OF THE LAKE VALLEY DAIRY):
HE WANTS TO KNOW IF THEY ARE EMPLOYED BY THE DAIRY? 

"MR. RISKIND (ATTORNEY FOR DEFENDANTS).  YES, THAT IS ALL I WANT TO
KNOW. 

"A.  NOW THAT IS NOT SO EASY TO SAY, IF THEY ARE EMPLOYED OR NOT.  WE
HAVE CONTRACTS, AND THEY ARE BOUND TO OUR DAIRY.  THEY ARE ACTUALLY
EMPLOYED BY OUR DAIRY, BUT WE HAVE THE VENDOR SYSTEM, WHERE THEY OWN
THEIR OWN TRUCKS AND THEY PAY THEIR OWN EXPENSES AND THEY BUY MILK AT A
CERTAIN PRICE AT OUR DAIRY.  IN ONE WAY THEY ARE EMPLOYEES, AND IN
ANOTHER WAY, WE DON'T PAY WAGES.  WE HAVE TO PAY WHATEVER THEY CAN MAKE
OVER A CERTAIN PRICE.  WE CHARGE THEM A CERTAIN PRICE." 

FN12  "UNDER THESE CONDITIONS WE THINK IT CANNOT BE FAIRLY SAID THAT
THERE IS A GOOD FAITH LABOR ISSUE INVOLVED BETWEEN THE DEFENDANT UNION
AND EITHER THE DAIRIES' EMPLOYEES OR THE 'VENDORS' OR THE STORES. 
ESPECIALLY IS THIS TRUE WHEN WE CONSIDER THE FACT THAT THE 'VENDORS'
ARE ORGANIZED AS MEMBERS OF A WELL-RECOGNIZED UNION, WHICH WITH THEIR
CONSENT IS ACTING AS THEIR REPRESENTATIVE IN MATTERS DEALING WITH THEIR
EMPLOYERS."  108 F.2D AT 442. 

FN13  THE COURT SAID:  "MOREOVER, WE THINK IT IS CLEAR FROM THE
FINDINGS AND FROM THE UNDISPUTED EVIDENCE IN THIS CASE THAT THE
APPELLEES' PICKETING ACTIVITIES CONSTITUTE A SECONDARY BOYCOTT, WHICH
IS AN UNLAWFUL ACTIVITY, OF WHICH APPELLEES COULD NOT AVAIL THEMSELVES
EVEN THOUGH A LABOR DISPUTE WERE INVOLVED.  SEE DUPLEX PRINTING PRESS
COMPANY V. DEERING, 254 U.S. 443; MEADOWMOOR DAIRIES, INC., V. MILK
WAGON DRIVERS' UNION OF CHICAGO, NO. 753, 371 ILL. 377; 21 N.E.2D 308,"
108 F.2D AT 442. 

FN14  NEW NEGRO ALLIANCE V. SANITARY GROCERY CO., 303 U.S. 552, 562. 

FN15  H. REP. NO. 669, 72ND CONG., 1ST SESS., P. 8. 

FN16  S. REP. NO. 163, 72ND CONG., 1ST SESS., P. 8. 

FN17  H. REP. NO. 669, SUPRA, PP. 7, 8. 

FN18  FOR EXAMPLE, ONE OF THE PREREQUISITES TO ANY INJUNCTION UNDER
THE ACT IS "THAT THE PUBLIC OFFICERS CHARGED WITH THE DUTY TO PROTECT
COMPLAINANT'S PROPERTY ARE UNABLE OR UNWILLING TO FURNISH ADEQUATE
PROTECTION."  CONCERNING THIS, THE HOUSE JUDICIARY COMMITTEE SAID:
"THE LAST PROVISION IS CONSIDERED DESIRABLE, BECAUSE IT OFTEN HAPPENS
THAT COMPLAINANTS RUSH INTO A FEDERAL COURT AND OBTAIN AN INJUNCTION
THE ENFORCEMENT OF WHICH REQUIRES THE COURT TO CONSIDER AND PUNISH ACTS
WHICH ARE AND OUGHT TO BE, UNDER OUR SYSTEM OF GOVERNMENT, COGNIZABLE
IN THE LOCAL TRIBUNALS.  OUR FEDERAL COURTS ALREADY ARE CONGESTED WITH
CASES ORDINARLY COGNIZABLE IN THE LOCAL POLICE COURTS,  ...  "  H. REP.
NO. 669, SUPRA, P. 9. 
..END :











WILSON & CO. V. UNITED STATES, 311 U.S. 104 


NO. 23.  ARGUED OCTOBER 22, 23, 1940.  - DECIDED NOVEMBER 18, 1940.  -
90 CT. CLS. 131 - 30 F.SUPP.  672, AFFIRMED. 


1.  CLAIMS TO REFUNDS BY EXPORTERS OF PRODUCTS UPON WHICH PROCESSING
OR FLOOR STOCK TAXES HAD BEEN PAID UNDER THE AGRICULTURAL ADJUSTMENT
ACT, HELD GOVERNED BY SEC. 601(A) OF THE REVENUE ACT OF 1936(WHICH
REENACTED SEC. 17(A) OF THE AGRICULTURAL ADJUSTMENT ACT), WHERE
CLAIMANTS DISAVOW ANY ATTEMPT TO PROCEED UNDER TITLE VII OF THE ACT. 
P. 105. 

2.  WHERE, IN THE CASE OF A CLAIM FOR REFUND GOVERNED BY SEC. 601(A)
OF THE REVENUE ACT OF 1936, THE RECORD DOES NOT SHOW THE GROUND OF
DENIAL BY THE COMMISSIONER OF INTERNAL REVENUE, THE COURT OF CLAIMS IS
WITHOUT JURISDICTION TO REVIEW THE COMMISSIONER'S DETERMINATION. 
REVENUE ACT OF 1936, SEC. 601(E).  P. 106. 

WILSON & CO., INC. V. UNITED STATES.* 

*TOGETHER WITH NO. 24, WILSON & CO., INC., OF KANSAS V. UNITED
STATES, AND NO. 25, T. M. SINCLAIR & CO., LTD. V. UNITED STATES, ALSO
ON WRITS OF CERTIORARI, 309 U.S. 651, TO THE COURT OF CLAIMS. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 309 U.S. 651, TO REVIEW THE DISMISSAL OF PETITIONS IN
THREE CASES FOR REFUNDS OF PROCESSING AND FLOOR TAXES PAID UNDER THE
AGRICULTURAL ADJUSTMENT ACT UPON PRODUCTS SUBSEQUENTLY EXPORTED. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE CORPORATIONS ENGAGED IN THE PREPARATION, PACKING, AND
SALE OF MEAT PRODUCTS IN FOREIGN AND DOMESTIC COMMERCE.  BETWEEN
NOVEMBER 5, 1933 AND JANUARY 6, 1936 THEY EXPORTED TO FOREIGN COUNTRIES
LARGE QUANTITIES OF HOG PRODUCTS WITH RESPECT TO WHICH THEY PAID
PROCESSING TAXES UNDER SEC. 9(A) AND FLOOR STOCK TAXES UNDER SEC. 16(A)
OF THE AGRICULTURAL ADJUSTMENT ACT.  48 STAT. 31, 35, 40.  SUBSEQUENT
TO EXPORTATION PETITIONERS FILED CLAIMS FOR REFUNDS UNDER SEC. 17(A). 
48 STAT. 31, 40.  THE COMMISSIONER OF INTERNAL REVENUE DENIED ALL OF
THE CLAIMS AND SUIT IN THE COURT OF CLAIMS FOLLOWED.  THE UNITED STATES
THEREUPON MOVED TO DISMISS THE PETITIONS ON THE GROUND THAT THE COURT
OF CLAIMS WAS WITHOUT JURISDICTION BECAUSE OF CERTAIN PROVISIONS OF
TITLE VII OF THE REVENUE ACT OF 1936.  49 STAT. 1648, 1747-1755.  THE
COURT OF CLAIMS DISMISSED THE ACTIONS FOR WANT OF JURISDICTION, ON THE
GROUND, HOWEVER, THAT SEC. 601(E) OF TITLE IV OF THE REVENUE ACT OF
1936, 49 STAT. 1648, 1740, PREVENTED JUDICIAL REVIEW OF THE
COMMISSIONER'S ACTION.  30 F.SUPP.  672.  TO RESOLVE THE CONFLICT WITH
CUDAHY BROS. CO. V. LA BUDDE, 92 F.2D 937, AND NEUSS, HESSLEIN & CO. V.
UNITED STATES, 30 F.SUPP.  595, WE GRANTED CERTIORARI.  309 U.S. 651. 

THE SINGLE QUESTION PRESENTED IS WHETHER THE COURT OF CLAIMS WAS
WITHOUT JURISDICTION OF PETITIONERS' SUITS.  WE HOLD THAT IT WAS. 

TITLE VII CONDITIONS PAYMENT OF REFUNDS UPON PROOF THAT THE CLAIMANT
ACTUALLY BORE THE BURDEN OF THE TAX SOUGHT TO BE REFUNDED OR THAT HE
UNCONDITIONALLY REPAID IT TO HIS VENDEE WHO BORE THE BURDEN.  SINCE
PETITIONERS DO NOT ALLEGE SATISFACTION OF THESE CONDITIONS IT IS PLAIN
THAT THEY DO NOT CLAIM UNDER TITLE VII.  INDEED, THEY DISOWN ANY
ATTEMPT TO BRING THEIR CLAIMS WITHIN ITS PROVISIONS. 

TITLE IV PROVIDES FOR REFUNDS TO EXPORTERS OF PRODUCTS UPON WHICH
PROCESSING OR FLOOR STOCK TAXES HAVE BEEN PAID.  IT IS TRUE THAT SEC.
17(A) OF THE AGRICULTURAL ADJUSTMENT ACT PROVIDED FOR THESE REFUNDS
BEFORE THE ACT WAS HELD UNCONSTITUTIONAL IN UNITED STATES V. BUTLER,
297 U.S. 1.  WHETHER PETITIONERS COULD STILL ESTABLISH REFUND CLAIMS
UNDER THAT SECTION IF THE ACT HAD NEVER BEEN INVALIDATED IS A QUESTION
WE NEED NOT CONSIDER.  FOR WHATEVER THE EFFECT OF THAT DECISION ON SEC.
17(A), CONGRESS EXPRESSLY MADE IT A PART OF TITLE IV BY REENACTING IT
IN SEC. 601(A).  49 STAT. 1648, 1739.  FN1  IT FOLLOWS THAT
PETITIONERS' CLAIMS, PURPORTEDLY BASED ON SEC. 17(A), MUST BE GOVERNED
BY TITLE IV AND THE LIMITATIONS IT IMPOSES. 


"THE DETERMINATION OF THE COMMISSIONER OF INTERNAL REVENUE WITH
RESPECT TO ANY REFUND UNDER THIS SECTION SHALL BE FINAL AND NO COURT
SHALL HAVE JURISDICTION TO REVIEW SUCH DETERMINATION." 

PETITIONERS CONTEND THAT CONGRESS INTENDED TO COMMIT TO THE FINAL
DETERMINATION OF THE COMMISSIONER ONLY "SUCH MATTERS AS FINDINGS OF
FACT, COMPUTATIONS, AND THE LIKE."  QUITE APART FROM THE FACT THAT IN
SEC. 601(D)  FN2  CONGRESS USES VIRTUALLY THE QUOTED WORDS IN LIMITING
REVIEW BY ADMINISTRATIVE OFFICERS, WE FAIL TO SEE HOW THE ARGUMENT CAN
AID PETITIONERS HERE BECAUSE THE RECORD DOES NOT SHOW WHY THEIR CLAIMS
WERE DENIED.  SINCE THE RECORD IS SILENT ON THIS POINT, SUCH DECISIONS
AS UNITED STATES V. WILLIAMS, 278 U.S. 255, AND SILBERSCHEIN V. UNITED
STATES, 266 U.S. 221, ARE PLAINLY DISTINGUISHABLE. 

WE HOLD THAT UPON THIS RECORD THE DETERMINATION OF THE COMMISSIONER
IS FINAL.  THUS WE SEE NO OCCASION TO NARROW THE EFFECT OF SEC.
601(E).  THE DECISION OF THE COURT OF CLAIMS WAS CORRECT AND MUST BE
AFFIRMED. 

FN1  SEC. 601.  (A)  THE PROVISIONS OF SECTIONS  ...  17(A) OF THE
AGRICULTURAL ADJUSTMENT ACT, AS AMENDED, ARE HEREBY REENACTED BUT ONLY
FOR THE PURPOSE OF ALLOWING REFUNDS IN ACCORDANCE THEREWITH IN CASES
WHERE  ...  THE EXPORTATION  ...  TOOK PLACE PRIOR TO JANUARY 6, 1936. 

FN2  SEC. 601.  (D)  IN THE ABSENCE OF FRAUD, THE FINDINGS OF FACT
AND THE DECISION OF THE COMMISSIONER OF INTERNAL REVENUE UPON THE
MERITS OF ANY CLAIM ADJUSTED PURSUANT TO THIS SECTION AND THE
MATHEMATICAL CALCULATION THEREIN SHALL NOT BE SUBJECT TO REVIEW BY ANY
ADMINISTRATIVE OR ACCOUNTING OFFICER, EMPLOYEE, OR AGENT OF THE UNITED
STATES. 
..END :












REPUBLIC STEEL CORP. V. LABOR BOARD, 311 U.S. 7 


NO. 14.  ARGUED OCTOBER 17, 1940.  - DECIDED NOVEMBER 12, 1940.  - 107
F.2D 472, MODIFIED. 


1.  THE NATIONAL LABOR RELATIONS BOARD, HAVING ORDERED THE
REINSTATEMENT WITH BACK PAY OF EMPLOYEES FOUND TO HAVE BEEN DISCHARGED
OR DENIED REINSTATEMENT IN VIOLATION OF THE NATIONAL LABOR RELATIONS
ACT, AND HAVING DIRECTED THE EMPLOYER TO DEDUCT FROM THE BACK PAY SUCH
AMOUNTS AS WERE RECEIVED BY THE EMPLOYEES FROM GOVERNMENTAL AGENCIES
FOR SERVICES PERFORMED MEANWHILE ON WORK RELIEF PROJECTS, WAS WITHOUT
AUTHORITY FURTHER TO REQUIRE THE EMPLOYER TO PAY OVER TO THE
GOVERNMENTAL AGENCIES THE AMOUNTS SO DEDUCTED.  PP. 9, 12. 

2.  THE NATIONAL LABOR RELATIONS ACT IS ESSENTIALLY REMEDIAL.  THE
PROVISION OF SEC. 10(C) AUTHORIZING THE BOARD TO ORDER "SUCH
AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR
WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES OF THIS ACT" IS
REMEDIAL, NOT PUNITIVE.  AFFIRMATIVE ACTION TO EFFECTUATE THE POLICIES
OF THIS ACT IS ACTION TO ACHIEVE THE REMEDIAL OBJECTIVES WHICH THE ACT
SETS FORTH.  IT IS NOT ENOUGH TO JUSTIFY THE BOARD'S REQUIREMENTS TO
SAY THAT THEY WOULD HAVE THE EFFECT OF DETERRING PERSONS FROM VIOLATING
THE ACT.  PP. 10-11. 

THE REASONS ASSIGNED BY THE BOARD FOR THE REQUIREMENT IN QUESTION -
REASONS WHICH RELATE TO THE NATURE AND PURPOSE OF WORK RELIEF PROJECTS
AND TO THE PRACTICE AND AIMS OF THE WORK PROJECTS ADMINISTRATION -
INDICATE THAT ITS ORDER IS NOT DIRECTED TO THE APPROPRIATE EFFECTUATING
OF THE POLICIES OF THE NATIONAL LABOR RELATIONS ACT, BUT TO THE
EFFECTUATING OF A DISTINCT AND BROADER POLICY WITH RESPECT TO
UNEMPLOYMENT. 

REPUBLIC STEEL CORPORATION V. NATIONAL LABOR RELATIONS BOARD ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 310 U.S. 655, TO REVIEW A DECREE ENFORCING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD.  9 N.L.R.B. 219. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD, FINDING THAT THE REPUBLIC STEEL
CORPORATION HAD ENGAGED IN UNFAIR LABOR PRACTICES IN VIOLATION OF SEC.
8(1), 8(2) AND 8(3) OF THE NATIONAL LABOR RELATIONS ACT, ORDERED THE
COMPANY TO DESIST FROM THESE PRACTICES, TO WITHDRAW RECOGNITION FROM A
LABOR ORGANIZATION FOUND TO BE DOMINATED BY THE COMPANY, AND TO
REINSTATE CERTAIN EMPLOYEES, WITH BACK PAY, FOUND TO HAVE BEEN
DISCRIMINATORILY DISCHARGED OR DENIED REINSTATEMENT.  THE BOARD, IN
PROVIDING FOR BACK PAY, DIRECTED THE COMPANY TO DEDUCT FROM THE
PAYMENTS TO THE REINSTATED EMPLOYEES THE AMOUNTS THEY HAD RECEIVED FOR
WORK PERFORMED UPON "WORK RELIEF PROJECTS" AND TO PAY OVER SUCH AMOUNTS
TO THE APPROPRIATE GOVERNMENTAL AGENCIES.  EXCEPT FOR A MODIFICATION,
NOT NOW IMPORTANT, THE CIRCUIT COURT OF APPEALS DIRECTED ENFORCEMENT OF
THE BOARD'S ORDER.  107 F.2D 472. 

IN VIEW OF CONFLICT WITH DECISIONS IN NATIONAL LABOR RELATIONS BOARD
V. LEVITON MANUFACTURING CO., 111 F.2D 619(C.C.A.2D) AND NATIONAL LABOR
RELATIONS BOARD V. TOVREA PACKING CO., 111 F.2D 626(C.C.A.9TH), WE
GRANTED CERTIORARI LIMITED TO THE QUESTION WHETHER THE BOARD HAD
AUTHORITY TO REQUIRE THE COMPANY TO MAKE THE DESCRIBED PAYMENTS TO THE
AGENCIES OF THE GOVERNMENT.  310 U.S. 655. 

THE AMOUNTS EARNED BY THE EMPLOYEES BEFORE REINSTATEMENT WERE
DIRECTED TO BE DEDUCTED FROM THEIR BACK PAY MANIFESTLY BECAUSE, HAVING
ALREADY BEEN RECEIVED, THESE AMOUNTS WERE NOT NEEDED TO MAKE THE
EMPLOYEES WHOLE.  THAT PRINCIPLE WOULD APPLY WHETHER THE EMPLOYEES HAD
EARNED THE AMOUNTS IN PUBLIC OR PRIVATE EMPLOYMENT.  FURTHER, THERE IS
NO QUESTION THAT THE AMOUNTS PAID BY THE GOVERNMENTAL AGENCIES WERE FOR
SERVICES ACTUALLY PERFORMED.  PRESUMABLY THESE AGENCIES, AND THROUGH
THEM THE PUBLIC, RECEIVED THE BENEFIT OF SERVICES REASONABLY WORTH THE
AMOUNTS PAID.  THERE IS NO FINDING TO THE CONTRARY. 

THE BOARD URGES THAT THE WORK RELIEF PROGRAM WAS DESIGNED TO MEET THE
EXIGENCY OF LARGE-SCALE UNEMPLOYMENT PRODUCED BY THE DEPRESSION; THAT
PROJECTS HAD BEEN SELECTED, NOT WITH A SINGLE EYE TO COSTS OR
USEFULNESS, BUT WITH A VIEW TO PROVIDING THE GREATEST AMOUNT OF
EMPLOYMENT IN ORDER TO SERVE THE NEEDS OF UNEMPLOYED WORKERS IN VARIOUS
COMMUNITIES; IN SHORT, THAT THE WORK PROJECTS ADMINISTRATION HAS BEEN
CONDUCTED AS A MEANS OF DEALING WITH THE RELIEF PROBLEM.  HENCE IT IS
CONTENDED THAT THE BOARD COULD PROPERLY CONCLUDE THAT THE UNFAIR LABOR
PRACTICES OF THE COMPANY HAD OCCASIONED LOSSES TO THE GOVERNMENT
FINANCING THE WORK RELIEF PROJECTS. 

THE PAYMENTS TO THE FEDERAL, STATE, COUNTY, OR OTHER GOVERNMENTS
CONCERNED ARE THUS CONCEIVED AS BEING REQUIRED FOR THE PURPOSE OF
REDRESSING, NOT AN INJURY TO THE EMPLOYEES, BUT AN INJURY TO THE
PUBLIC,  - AN INJURY THOUGHT TO BE NOT THE LESS SUSTAINED ALTHOUGH HERE
THE RESPECTIVE GOVERNMENTS HAVE RECEIVED THE BENEFIT OF THE SERVICES
PERFORMED.  SO CONCEIVED, THESE REQUIRED PAYMENTS ARE IN THE NATURE OF
PENALTIES IMPOSED BY LAW UPON THE EMPLOYER,  - THE BOARD ACTING AS THE
LEGISLATIVE AGENCY IN PROVIDING THAT SORT OF SANCTION BY REASON OF
PUBLIC INTEREST.  WE NEED NOT PAUSE TO PURSUE THE APPLICATION OF THIS
THEORY OF THE BOARD'S POWER TO A VARIETY OF CIRCUMSTANCES WHERE
COMMUNITY INTERESTS MIGHT BE ASSERTED.  THE QUESTION IS,  - HAS
CONGRESS CONFERRED THE POWER UPON THE BOARD TO IMPOSE SUCH
REQUIREMENTS. 

WE THINK THAT THE THEORY ADVANCED BY THE BOARD PROCEEDS UPON A
MISCONCEPTION OF THE NATIONAL LABOR RELATIONS ACT.  THE ACT IS
ESSENTIALLY REMEDIAL.  IT DOES NOT CARRY A PENAL PROGRAM DECLARING THE
DESCRIBED UNFAIR LABOR PRACTICES TO BE CRIMES.  THE ACT DOES NOT
PRESCRIBE PENALTIES OR FINES IN VINDICATION OF PUBLIC RIGHTS OR PROVIDE
INDEMNITY AGAINST COMMUNITY LOSSES AS DISTINGUISHED FROM THE PROTECTION
AND COMPENSATION OF EMPLOYEES.  HAD CONGRESS BEEN INTENT UPON SUCH A
PROGRAM, WE CANNOT DOUBT THAT CONGRESS WOULD HAVE EXPRESSED ITS INTENT
AND WOULD ITSELF HAVE DEFINED ITS RETRIBUTIVE SCHEME. 

THE REMEDIAL PURPOSES OF THE ACT ARE QUITE CLEAR.  IT IS AIMED, AS
THE ACT SAYS (SEC. 1) AT ENCOURAGING THE PRACTICE AND PROCEDURE OF
COLLECTIVE BARGAINING AND AT PROTECTING THE EXERCISE BY WORKERS OF FULL
FREEDOM OF ASSOCIATION, OF SELF ORGANIZATION AND OF NEGOTIATING THE
TERMS AND CONDITIONS OF THEIR EMPLOYMENT OR OTHER MUTUAL AID OR
PROTECTION THROUGH THEIR FREELY CHOSEN REPRESENTATIVES.  THIS RIGHT OF
THE EMPLOYEES IS SAFEGUARDED THROUGH THE AUTHORITY CONFERRED UPON THE
BOARD TO REQUIRE THE EMPLOYER TO DESIST FROM THE UNFAIR LABOR PRACTICES
DESCRIBED AND TO LEAVE THE EMPLOYEES FREE TO ORGANIZE AND CHOOSE THEIR
REPRESENTATIVES.  THEY ARE THUS PROTECTED FROM COERCION AND
INTERFERENCE IN THE FORMATION OF LABOR ORGANIZATIONS AND FROM
DISCRIMINATORY DISCHARGE.  WHETHER THE ACT HAS BEEN VIOLATED BY THE
EMPLOYER - WHETHER THERE HAS BEEN AN UNFAIR LABOR PRACTICE - IS A
MATTER FOR THE BOARD TO DETERMINE UPON EVIDENCE.  WHEN IT DOES SO
DETERMINE THE BOARD CAN REQUIRE THE EMPLOYER TO DISESTABLISH
ORGANIZATIONS CREATED IN VIOLATION OF THE ACT; IT 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. 

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
SEC. 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." 

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.  SEE, ALSO, NATIONAL LABOR RELATIONS BOARD V.
PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, 267, 268.  WE ADHERE TO
THAT CONSTRUCTION. 

IN THAT VIEW, IT IS NOT ENOUGH TO JUSTIFY THE BOARD'S REQUIREMENTS TO
SAY THAT THEY WOULD HAVE THE EFFECT OF DETERRING PERSONS FROM VIOLATING
THE ACT.  THAT ARGUMENT PROVES TOO MUCH, FOR IF SUCH A DETERRENT EFFECT
IS SUFFICIENT TO SUSTAIN AN ORDER OF THE BOARD, IT WOULD BE FREE TO SET
UP ANY SYSTEM OF PENALTIES WHICH IT WOULD DEEM ADEQUATE TO THAT END. 

WE THINK THAT AFFIRMATIVE ACTION TO "EFFECTUATE THE POLICIES OF THIS
ACT" IS ACTION TO ACHIEVE THE REMEDIAL OBJECTIVES WHICH THE ACT SETS
FORTH.  THUS THE EMPLOYER MAY BE REQUIRED NOT ONLY TO END HIS UNFAIR
LABOR PRACTICES; HE MAY ALSO BE DIRECTED AFFIRMATIVELY TO RECOGNIZE AN
ORGANIZATION WHICH IS FOUND TO BE THE DULY CHOSEN BARGAINING
REPRESENTATIVE OF HIS EMPLOYEES; HE MAY BE ORDERED TO CEASE PARTICULAR
METHODS OF INTERFERENCE, INTIMIDATION OR COERCION, TO STOP RECOGNIZING
AND TO DISESTABLISH A PARTICULAR LABOR ORGANIZATION WHICH HE DOMINATES
OR SUPPORTS, TO RESTORE AND MAKE WHOLE EMPLOYEES WHO HAVE BEEN
DISCHARGED IN VIOLATION OF THE ACT, TO GIVE APPROPRIATE NOTICE OF HIS
COMPLIANCE WITH THE BOARD'S ORDER, AND OTHERWISE TO TAKE SUCH ACTION AS
WILL ASSURE TO HIS EMPLOYEES THE RIGHTS WHICH THE STATUTE UNDERTAKES TO
SAFEGUARD.  THESE ARE ALL REMEDIAL MEASURES.  TO GO FURTHER AND TO
REQUIRE THE EMPLOYER TO PAY TO GOVERNMENTS WHAT THEY HAVE PAID TO
EMPLOYEES FOR SERVICES RENDERED TO THEM IS AN EXACTION NEITHER TO MAKE
THE EMPLOYEES WHOLE NOR TO ASSURE THAT THEY CAN BARGAIN COLLECTIVELY
WITH THE EMPLOYER THROUGH REPRESENTATIVES OF THEIR OWN CHOICE.  WE FIND
NO WARRANT IN THE POLICIES OF THE ACT FOR SUCH AN EXACTION. 

IN TRUTH, THE REASONS ASSIGNED BY THE BOARD FOR THE REQUIREMENT IN
QUESTION - REASONS WHICH RELATE TO THE NATURE AND PURPOSE OF WORK
RELIEF PROJECTS AND TO THE PRACTICE AND AIMS OF THE WORK PROJECTS
ADMINISTRATION - INDICATE THAT ITS ORDER IS NOT DIRECTED TO THE
APPROPRIATE EFFECTUATING OF THE POLICIES OF THE NATIONAL LABOR
RELATIONS ACT, BUT TO THE EFFECTUATING OF A DISTINCT AND BROADER POLICY
WITH RESPECT TO UNEMPLOYMENT.  THE BOARD HAS MADE ITS REQUIREMENT IN AN
APPARENT EFFORT TO PROVIDE ADJUSTMENTS BETWEEN PRIVATE EMPLOYMENT AND
PUBLIC WORK RELIEF, AND TO CARRY OUT SUPPOSED POLICIES IN RELATION TO
THE LATTER.  THAT IS NOT THE FUNCTION OF THE BOARD.  IT HAS NOT BEEN
ASSIGNED A ROLE IN RELATION TO LOSSES CONCEIVED TO HAVE BEEN SUSTAINED
BY COMMUNITIES OR GOVERNMENTS IN CONNECTION WITH WORK RELIEF PROJECTS. 
THE FUNCTION OF THE BOARD IN THIS CASE WAS TO ASSURE TO PETITIONER'S
EMPLOYEES THE RIGHT OF COLLECTIVE BARGAINING THROUGH THEIR
REPRESENTATIVES WITHOUT INTERFERENCE BY PETITIONER AND TO MAKE GOOD TO
THE EMPLOYEES WHAT THEY HAD LOST THROUGH THE DISCRIMINATORY DISCHARGE. 

WE HOLD THAT THE ADDITIONAL PROVISION REQUIRING THE PAYMENTS TO
GOVERNMENTAL AGENCIES WAS BEYOND THE BOARD'S AUTHORITY, AND TO THAT
EXTENT THE DECREE BELOW ENFORCING THE BOARD'S ORDER IS MODIFIED AND THE
CAUSE IS REMANDED WITH DIRECTION TO ENTER A DECREE ENFORCING THE
BOARD'S ORDER WITH THAT PROVISION ELIMINATED.  IT IS SO ORDERED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS: 

IT MIGHT FAIRLY BE IMPLIED BY THE WORDS "REINSTATEMENT OF EMPLOYEES
WITH OR WITHOUT BACK PAY" THAT THE EMPLOYEES MUST THEMSELVES BE THE
RECIPIENTS OF THE BACK PAY.  WERE THE OPINION BASED ON THAT GROUND WE
WOULD ACQUIESCE.  BUT THE JUDGMENT HERE DOES NOT REST UPON SUCH AN
INTERPRETATION.  THE HOLDING APPEARS TO BE ON THE BROAD GROUND THAT THE
BOARD MAY NOT REQUIRE FULL BACK PAY, EVEN TO A WRONGFULLY DISCHARGED
EMPLOYEE, IF HE HAS RECEIVED PAY FOR SERVICES PERFORMED ON A
GOVERNMENTAL RELIEF PROJECT PROVIDED EXCLUSIVELY FOR THE NEEDY
UNEMPLOYED.  WITH THIS CONCLUSION WE CANNOT AGREE. 

THE STATUTE COMMANDS THAT THE BOARD MUST ORDER "BACK PAY" IF THE
POLICY OF THE ACT WILL THEREBY BE EFFECTUATED.  AT LEAST TWO PERSONS
ARE IMMEDIATELY INVOLVED IN "BACK PAY," AS HERE USED; ONE WHO PAYS AND
ONE WHO RECEIVES.  THE PROPRIETY OF A "BACK PAY" ORDER AS AN
INSTRUMENTALITY FOR EFFECTUATING THE ACT'S POLICIES, MUST THEREFORE BE
DETERMINED BY THE MANNER IN WHICH IT INFLUENCES THE PAYOR AND PAYEE,
ONE, OR BOTH.  THE CENTRAL POLICY OF THE ACT IS PROTECTION TO EMPLOYEES
FROM EMPLOYER INTERFERENCE, INTIMIDATION AND COERCION IN RELATION TO
UNIONIZATION AND COLLECTIVE BARGAINING.  WE CANNOT DOUBT BUT THAT A
BACK PAY ORDER AS APPLIED TO THE EMPLOYER WILL EFFECTUALLY AID IN
SAFEGUARDING THESE RIGHTS.  WE BELIEVE, AS DID THE BOARD AND THE COURT
BELOW, THAT IT MAY WELL BE SAID THAT THE POLICIES OF THE ACT WILL BE
EFFECTUATED BY DENYING TO AN OFFENDING EMPLOYER THE OPPORTUNITY OF
SHIFTING TO GOVERNMENT RELIEF AGENCIES THE BURDEN OF SUPPORTING HIS
WRONGFULLY DISCHARGED EMPLOYEES.  THE KNOWLEDGE THAT HE MAY BE CALLED
UPON TO PAY OUT THE WAGES HIS EMPLOYEES WOULD HAVE EARNED BUT FOR THEIR
WRONGFUL DISCHARGE, REGARDLESS OF ANY ASSISTANCE GOVERNMENT MAY HAVE
RENDERED THEM DURING THEIR UNEMPLOYMENT, MIGHT WELL BE A FACTOR IN
INDUCING AN EMPLOYER TO COMPLY WITH THE ACT. 

AND THE CONSTRUCTION OF THE PROVISION FOR BACK PAY IS NOT HELPED BY
LABELING THE ACT'S PURPOSE OR THE BOARD'S ACTION AS EITHER "PUNITIVE"
OR "REMEDIAL."  THE "BACK PAY" PROVISION IS CLEAR AND UNAMBIGUOUS. 
HENCE, IT IS ENOUGH HERE FOR US TO DETERMINE WHAT CONGRESS MEANT FROM
WHAT IT SAID. 

NOR IS THERE SUBSTANCE TO THE EXPRESSED FEAR THAT COMPLETE ACCEPTANCE
OF THE WORDS AS CONGRESS WROTE THEM WOULD VEST UNLIMITED DISCRETION IN
THE BOARD, BECAUSE IT WOULD NOT.  THAT DISCRETION IS NARROWLY LIMITED,
BY THE FACT THAT AS TO "BACK PAY" THE BOARD CAN IN NO INSTANCE AWARD
ANY GREATER SUM THAN "BACK PAY" FOR THE PERIOD IN WHICH THE EMPLOYEE
WAS ABSENT FROM HIS EMPLOYER'S SERVICES BY REASON OF HIS EMPLOYER'S
VIOLATION OF THE LAW. 
..END :



















FLEISHER CO. V. UNITED STATES, 311 U.S. 15 


NO. 15.  ARGUED OCTOBER 17, 18, 1940.  - DECIDED NOVEMBER 12, 1940.  -
107 F.2D 925, AFFIRMED. 


1.  THE MILLER ACT OF 1935, REQUIRING CONTRACTORS FOR PUBLIC WORK OF
THE UNITED STATES TO FURNISH A PAYMENT BOND FOR THE PROTECTION OF
PERSONS SUPPLYING LABOR OR MATERIALS, PROVIDES THAT A SUPPLIER HAVING
CONTRACTUAL RELATIONSHIP NOT WITH THE CONTRACTOR FURNISHING SUCH BOND
BUT WITH A SUBCONTRACTOR, "SHALL HAVE A RIGHT OF ACTION UPON THE SAID
PAYMENT BOND UPON GIVING WRITTEN NOTICE TO SAID CONTRACTOR  ...  "  THE
ACT FURTHER PROVIDES THAT "SUCH NOTICE SHALL BE SERVED BY MAILING THE
SAME BY REGISTERED MAIL  ...  "  HELD THAT A SUIT UNDER THE ACT WAS
MAINTAINABLE ALTHOUGH THE NOTICE WAS SENT BY ORDINARY MAIL AND NOT BY
REGISTERED MAIL, WHERE IT WAS OTHERWISE SUFFICIENT AND ACTUALLY REACHED
ONE OF TWO JOINT AND SEVERAL CONTRACTORS.  P. 17. 

2.  WITH RESPECT TO THE MANNER OF GIVING THE PRESCRIBED NOTICE, THE
ACT SHOULD BE LIBERALLY CONSTRUED IN AID OF ITS REMEDIAL PURPOSE.  P.
18. 

FLEISHER ENGINEERING & CONSTRUCTION CO. ET AL. V. UNITED STATES FOR
THE USE AND BENEFIT OF HALLENBECK. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 309 U.S. 693, TO REVIEW THE AFFIRMANCE OF A JUDGMENT ON A
BOND GIVEN BY TWO CONTRACTORS, WITH SURETIES, TO SECURE PAYMENT FOR
LABOR AND MATERIAL SUPPLIED FOR THE PERFORMANCE OF A CONTRACT WITH THE
UNITED STATES. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES BROUGHT THIS SUIT ON BEHALF OF GEORGE S. HALLENBECK
TO RECOVER UPON A BOND GIVEN BY FLEISHER ENGINEERING & CONSTRUCTION
COMPANY AND JOSEPH A. BASS, WITH THEIR SURETIES, AND PROVIDING FOR THE
PAYMENT FOR LABOR AND MATERIAL FURNISHED UNDER A CONTRACT BETWEEN THE
PRINCIPALS ON THE BOND AND THE UNITED STATES FOR THE CONSTRUCTION OF A
CERTAIN HOUSING PROJECT.  PART OF THE LABOR REQUIRED BY THE CONTRACT
WAS PERFORMED BY HALLENBECK FOR A SUBCONTRACTOR WITH THE APPROVAL OF
THE CONTRACTORS.  THE SUIT WAS BROUGHT UNDER THE MILLER ACT OF AUGUST
24, 1935, 40 U.S.C. 270B.  PLAINTIFF OBTAINED A SUMMARY JUDGMENT (30
F.SUPP.  964) WHICH THE CIRCUIT COURT OF APPEALS AFFIRMED.  107 F.2D
925. 

THE APPLICABLE PROVISION OF THE MILLER ACT IS SET FORTH IN THE
MARGIN.  FN1  THE QUESTION IS WHETHER THE GIVING OF THE REQUIRED
WRITTEN NOTICE TO THE CONTRACTOR WAS SUFFICIENT, AS IT WAS NOT SENT BY
"REGISTERED MAIL."  THE CIRCUIT COURT OF APPEALS HELD THAT AS THE
RECEIPT OF WRITTEN NOTICE WAS CONCEDED AND THE CONTENTS OF THE NOTICE
WERE ADEQUATE, THE STATUTE WAS SATISFIED.  IN VIEW OF ALLEGED CONFLICT
WITH THE DECISION IN UNITED STATES FOR THE USE OF JOHN A. DENIE'S SONS
CO. V. BASS, 111 F.2D 965, WE GRANTED CERTIORARI.  309 U.S. 693. 

IN CONSTRUING THE EARLIER ACT, THE HEARD ACT, FOR WHICH THE MILLER
ACT IS A SUBSTITUTE, WE OBSERVED THAT IT WAS INTENDED TO BE HIGHLY
REMEDIAL AND SHOULD BE CONSTRUED LIBERALLY.  UNITED STATES FOR THE USE
OF ALEXANDER BRYANT CO. V. NEW YORK STEAM FITTING CO., 235 U.S. 327,
337; ILLINOIS SURETY CO. V. JOHN DAVIS CO., 244 U.S. 376, 380;
FLEISCHMANN CONSTRUCTION CO. V. UNITED STATES, 270 U.S. 349, 360.  WE
RECOGNIZED THAT THE STATUTE CREATED A NEW RIGHT OF ACTION AND THAT
COMPLIANCE WITH THE PRESCRIBED LIMITATION WAS ESSENTIAL TO THE
ASSERTION OF THE RIGHT CONFERRED.  ACCORDINGLY, AS IT WAS PROVIDED THAT
A MATERIAL-MAN COULD NOT BRING SUIT ON THE CONTRACTOR'S BOND IN THE
NAME OF THE UNITED STATES WITHIN SIX MONTHS FROM COMPLETION AND
SETTLEMENT, THE COURT HELD THAT THIS PROVISION PLAINLY CONDITIONED THE
RIGHT TO SUE.  UNITED STATES EX REL. TEXAS PORTLAND CEMENT CO. V.
MCCORD, 233 U.S. 157, 162, 163.  THAT RULING WAS DISTINGUISHED IN THE
CASE OF THE ALEXANDER BRYANT COMPANY, SUPRA, WHERE IT WAS HELD THAT THE
PROVISION OF THE ACT REQUIRING NOTICE TO BE GIVEN TO OTHER CREDITORS BY
THE CREDITOR AVAILING HIMSELF OF THE RIGHT TO SUE WITHIN THE SPECIFIED
YEAR, IF THE GOVERNMENT DID NOT BRING SUIT WITHIN SIX MONTHS AFTER
COMPLETION, WAS NOT "OF THE ESSENCE OF JURISDICTION OVER THE CASE" OR
"A CONDITION OF THE LIABILITY" OF THE SURETY ON THE BOND.  IN SHORT, A
REQUIREMENT WHICH IS CLEARLY MADE A CONDITION PRECEDENT TO THE RIGHT TO
SUE MUST BE GIVEN EFFECT, BUT IN DETERMINING WHETHER A PROVISION IS OF
THAT CHARACTER THE STATUTE MUST BE LIBERALLY CONSTRUED SO AS TO
ACCOMPLISH ITS PURPOSE.  "TECHNICAL RULES OTHERWISE PROTECTING SURETIES
FROM LIABILITY HAVE NEVER BEEN APPLIED IN PROCEEDINGS UNDER THIS
STATUTE."  ILLINOIS SURETY CO. V. JOHN DAVIS CO., SUPRA.  THE SAME
PRINCIPLE SHOULD GOVERN THE APPLICATION OF THE MILLER ACT. 

IN THE INSTANT CASE, WE MAY LAY ON ONE SIDE THE FACT THAT THE NOTICE
WAS ADDRESSED TO THE PROJECT ENGINEER.  AS THE COURT BELOW SAID, IT WAS
ADMITTED THAT THE NOTICE WAS IN WRITING AND WAS SENT BY MAIL AND THAT
IT REACHED ONE OF THE TWO CONTRACTORS WHO HAD JOINTLY AND SEVERALLY
AGREED TO PERFORM THE CONTRACT.  AND AT THIS BAR, THE ACTUAL RECEIPT OF
THE NOTICE AND THE SUFFICIENCY OF ITS STATEMENTS HAVE NOT BEEN
CHALLENGED. 

IN GIVING THE STATUTE A REASONABLE CONSTRUCTION IN ORDER TO EFFECT
ITS REMEDIAL PURPOSE, WE THINK THAT A DISTINCTION SHOULD BE DRAWN
BETWEEN THE PROVISION EXPLICITLY STATING THE CONDITION PRECEDENT TO THE
RIGHT TO SUE AND THE PROVISION AS TO THE MANNER OF SERVING NOTICE.  THE
STRUCTURE OF THE STATUTE INDICATES THE DISTINCTION.  THE PROVISO, WHICH
DEFINES THE CONDITION PRECEDENT TO SUIT, STATES THAT THE MATERIAL-MAN
OR LABORER "SHALL HAVE A RIGHT OF ACTION UPON THE SAID PAYMENT BOND
UPON GIVING WRITTEN NOTICE TO SAID CONTRACTOR" WITHIN NINETY DAYS FROM
THE DATE OF FINAL PERFORMANCE.  THE CONDITION AS THUS EXPRESSED WAS
FULLY MET.  THEN THE STATUTE GOES ON TO PROVIDE FOR THE MODE OF SERVICE
OF THE NOTICE.  "SUCH NOTICE SHALL BE SERVED BY MAILING THE SAME BY
REGISTERED MAIL, POSTAGE PREPAID," OR "IN ANY MANNER" IN WHICH THE
UNITED STATES MARSHAL "IS AUTHORIZED BY LAW TO SERVE SUMMONS."  WE
THINK THAT THE PURPOSE OF THIS PROVISION AS TO MANNER OF SERVICE WAS TO
ASSURE RECEIPT OF THE NOTICE, NOT TO MAKE THE DESCRIBED METHOD
MANDATORY SO AS TO DENY RIGHT OF SUIT WHEN THE REQUIRED WRITTEN NOTICE
WITHIN THE SPECIFIED TIME HAD ACTUALLY BEEN GIVEN AND RECEIVED.  IN THE
FACE OF SUCH RECEIPT, THE REASON FOR A PARTICULAR MODE OF SERVICE
FAILS.  IT IS NOT REASONABLE TO SUPPOSE THAT CONGRESS INTENDED TO
INSIST UPON AN IDLE FORM.  RATHER, WE THINK THAT CONGRESS INTENDED TO
PROVIDE A METHOD WHICH WOULD AFFORD SUFFICIENT PROOF OF SERVICE WHEN
RECEIPT OF THE REQUIRED WRITTEN NOTICE WAS NOT SHOWN. 

IN THIS VIEW WE CONCLUDE THAT THE CIRCUIT COURT OF APPEALS CORRECTLY
DISPOSED OF THE CASE AND ITS JUDGMENT IS AFFIRMED. 

FN1  SECTION 2 OF THE ACT OF AUGUST 24, 1935, C. 642, 49 STAT. 794,
40 U.S.C., SEC. 270B, PROVIDES: 

"(A)  EVERY PERSON WHO HAS FURNISHED LABOR OR MATERIAL IN THE
PROSECUTION OF THE WORK PROVIDED FOR IN SUCH CONTRACT, IN RESPECT OF
WHICH A PAYMENT BOND IS FURNISHED UNDER SECTION 270A OF THIS TITLE AND
WHO HAS NOT BEEN PAID IN FULL THEREFOR BEFORE THE EXPIRATION OF A
PERIOD OF NINETY DAYS AFTER THE DAY ON WHICH THE LAST OF THE LABOR WAS
DONE OR PERFORMED BY HIM OR MATERIAL WAS FURNISHED OR SUPPLIED BY HIM
FOR WHICH SUCH CLAIM IS MADE, SHALL HAVE THE RIGHT TO SUE ON SUCH
PAYMENT BOND FOR THE AMOUNT, OR THE BALANCE THEREOF, UNPAID AT THE TIME
OF INSTITUTION OF SUCH SUIT AND TO PROSECUTE SAID ACTION TO FINAL
EXECUTION AND JUDGMENT FOR THE SUM OR SUMS JUSTLY DUE HIM:  PROVIDED,
HOWEVER, THAT ANY PERSON HAVING DIRECT CONTRACTUAL RELATIONSHIP WITH A
SUBCONTRACTOR BUT NO CONTRACTUAL RELATIONSHIP EXPRESS OR IMPLIED WITH
THE CONTRACTOR FURNISHING SAID PAYMENT BOND SHALL HAVE A RIGHT OF
ACTION UPON THE SAID PAYMENT BOND UPON GIVING WRITTEN NOTICE TO SAID
CONTRACTOR WITHIN NINETY DAYS FROM THE DATE ON WHICH SUCH PERSON DID OR
PERFORMED THE LAST OF THE LABOR OR FURNISHED OR SUPPLIED THE LAST OF
THE MATERIAL FOR WHICH SUCH CLAIM IS MADE, STATING WITH SUBSTANTIAL
ACCURACY THE AMOUNT CLAIMED AND THE NAME OF THE PARTY TO WHOM THE
MATERIAL WAS FURNISHED OR SUPPLIED OR FOR WHOM THE LABOR WAS DONE OR
PERFORMED.  SUCH NOTICE SHALL BE SERVED BY MAILING THE SAME BY
REGISTERED MAIL, POSTAGE PREPAID, IN AN ENVELOP ADDRESSED TO THE
CONTRACTOR AT ANY PLACE HE MAINTAINS AN OFFICE OR CONDUCTS HIS
BUSINESS, OR HIS RESIDENCE, OR IN ANY MANNER IN WHICH THE UNITED STATES
MARSHAL OF THE DISTRICT IN WHICH THE PUBLIC IMPROVEMENT IS SITUATED IS
AUTHORIZED BY LAW TO SERVE SUMMONS." 
..END :

















WEST INDIA OIL CO. V. DOMENECH, 311 U.S. 20 


NO. 26.  ARGUED OCTOBER 23, 24, 1940.  - DECIDED NOVEMBER 12, 1940.  -
108 F.2D 144, AFFIRMED. 


1.  SECTION 3 OF THE ORGANIC ACT OF PUERTO RICO, AS AMENDED BY THE ACT
OF MARCH 4, 1927, AUTHORIZING THE INSULAR LEGISLATURE TO LEVY INTERNAL
REVENUE TAXES AS SOON AS THE ARTICLES TO BE TAXED ARE MANUFACTURED,
SOLD, USED, OR "BROUGHT INTO THE ISLAND," GIVES THE CONSENT OF CONGRESS
TO A NONDISCRIMINATORY SALES TAX SO FAR AS IT IS LAID ON THE DELIVERY,
IN CONSUMMATION OF SALES, OF FUEL OIL IMPORTED IN BOND AND WITHDRAWN,
DUTY FREE (PURSUANT TO THE TARIFF ACT OF 1930 AND THE REVENUE ACT OF
1932), FOR DELIVERY TO VESSELS IN PUERTO RICAN PORTS FOR USE AS FUEL
UPON THEIR VOYAGES TO PORTS OF THE UNITED STATES OR FOREIGN COUNTRIES. 
MCGOLDRICK V. GULF OIL CORP., 309 U.S. 414, DISTINGUISHED.  P. 25. 

2.  CONSIDERING THE RELATIONSHIP OF GENERAL CONGRESSIONAL LEGISLATION
TO LEGISLATION SPECIFICALLY APPLICABLE TO THE TERRITORIES AND INSULAR
POSSESSIONS, REPEALS BY IMPLICATION ARE NOT TO BE FAVORED AND WILL NOT
BE ADJUDGED UNLESS THE LEGISLATIVE INTENTION TO REPEAL IS CLEAR.  P.
29. 

WEST INDIA OIL CO. (PUERTO RICO) V. DOMENECH, TREASURER OF PUERTO
RICO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

THIS WAS A SUIT BROUGHT BY THE OIL COMPANY AGAINST BONET, TREASURER
OF PUERTO RICO (FOR WHOM DOMENECH, SUCCESSOR IN THE OFFICE, HAS BEEN
SUBSTITUTED) PRAYING FOR A DETERMINATION OF THE VALIDITY OF THE TAXES
IN QUESTION.  A DECLARATORY JUDGMENT RENDERED BY A DISTRICT COURT OF
PUERTO RICO AGAINST THE TAX WAS REVERSED BY A JUDGMENT OF THE SUPREME
COURT OF THE TERRITORY, 54 P.R. DEC. 732, WHICH WAS IN TURN AFFIRMED BY
THE COURT BELOW. 

MR. JAMES R. BEVERLEY FOR PETITIONER. 

SO LONG AS THE GOODS REMAIN UNDER THE CONTROL OF THE CUSTOMS SERVICE,
THE MERCHANDISE IS IN PROCESS OF IMPORTATION AND CAN NOT BE TAXED BY
STATES OR OTHER TAXING JURISDICTIONS, OTHER THAN THE UNITED STATES.  A
TERRITORIAL TAX AT THIS STAGE EITHER ON THE PROPERTY OR ON A
TRANSACTION MOVING THE PROPERTY WOULD BE EQUIVALENT TO AN "IMPORT
DUTY," WHICH PUERTO RICO CAN NOT LAY.  TO HOLD OTHERWISE WOULD BE TO
PERMIT THE STATES AND TERRITORIES TO INTERFERE WITH AND PERHAPS EVEN
PROHIBIT (THROUGH TAXES OR OTHER EXACTIONS) THE IMPORTATION OF FOREIGN
GOODS,  - A POWER DENIED TO THEM UNDER THE CONSTITUTION, ART. I, SEC.
8, CL. 3.  THE FOREIGN FUEL OIL CAME UNDER THE IMMEDIATE AND COMPLETE
SUPERVISION OF THE UNITED STATES CUSTOMS SERVICE FROM THE MOMENT IT
ENTERED THE HARBOR OF SAN JUAN (OR PONCE, AS THE CASE MAY BE); AND SUCH
SUPERVISION AND CONTROL NEVER CEASED UNTIL THE OIL WAS CONSUMED AT SEA
BY SHIPS IN THEIR JOURNEYS.  IT WAS NEVER "IMPORTED" INTO PUERTO RICO,
BUT WAS MERELY ENTERED IN BOND UNTIL SUCH TIME AS IT SHOULD BE
DELIVERED TO THE SHIPS' BUNKERS.  TECHNICALLY, IT NEVER ENTERED THE
ISLAND AND NEVER BECAME A PART OF THE MASS OF PROPERTY THERE, BUT
REMAINED APART UNDER FEDERAL CONTROL. 

THE TARIFF ACT OF 1930, AS AMENDED, IN DEALING WITH CERTAIN SUPPLIES
TO SHIPS, INCLUDING FUEL OIL, STATES THAT SUCH SUPPLIES SHALL BE
TREATED AS "EXPORTED."  THE REVENUE ACT OF 1932, SEC. 601(B), PROVIDES
THAT THE TAXES INVOLVED "SHALL BE TREATED FOR THE PURPOSES OF ALL
PROVISIONS OF LAW RELATING TO CUSTOMS REVENUE AS A DUTY IMPOSED BY SUCH
ACT  ...  "  (TARIFF ACT OF 1930).  SO FAR AS THIS FUEL OIL IS
CONCERNED, ALL THE PROVISIONS OF LAW RELATING TO CUSTOMS DUTIES APPLY. 
FURTHER, ART. 942 OF THE CUSTOMS REGULATIONS OF 1931, INCORPORATED BY
REFERENCE IN THE TARIFF ACT, PROVIDES THAT "IMPORTED GOODS IN BONDED
WAREHOUSES ARE EXEMPT FROM TAXATION UNDER THE GENERAL LAWS OF THE
SEVERAL STATES."  THIS REGULATION ALSO APPEARS IN CUSTOMS REGULATIONS
OF 1937(ART.  940) AND IN PRIOR REGULATIONS (1923).  CONGRESS IN THE
TITLE TO THE TARIFF ACT OF 1930 HAS ASSERTED THAT ONE OF THE PURPOSES
OF THE ACT IS TO "REGULATE COMMERCE WITH FOREIGN COUNTRIES" AND ANOTHER
PURPOSE IS "TO ENCOURAGE THE INDUSTRIES OF THE UNITED STATES." 

THE TERRITORY OF PUERTO RICO IS BOUND BY THIS EXPRESSED INTENTION OF
CONGRESS AND IS BOUND TO TREAT THIS FUEL OIL AS IF IT WERE AN EXPORT. 
IT FOLLOWS THAT NO TAX ON ANY TRANSACTION MOVING THIS OIL IN COMMERCE
COULD BE LAID BY PUERTO RICO, BEING PROHIBITED BOTH BY THE REVENUE ACT
OF 1932, AND BY THE CUSTOMS REGULATIONS. 

THE FUEL OIL NEVER LEFT THE CHANNELS OF INTERSTATE OR FOREIGN
COMMERCE.  IN SUCH CASE, A TAX CAN NOT BE VALIDLY LAID BY PUERTO RICO
ON THE DELIVERY OF THE OIL TO SHIPS' BUNKERS.  IT WOULD SEEM ALSO THAT
A TAX ON THIS OIL OR UPON THE DELIVERY TO SHIPS' BUNKERS WOULD BE A
DIRECT BURDEN ON INTERSTATE AND FOREIGN COMMERCE, SINCE THE OIL IS USED
EXCLUSIVELY IN THE PROPULSION OF SHIPS IN INTERSTATE AND FOREIGN
COMMERCE.  FROM A PRACTICAL STANDPOINT, IF THE PRESENT TAX IS VALID,
THE INSULAR GOVERNMENT COULD IMPOSE SUCH TAXES AS TO MAKE IT IMPOSSIBLE
FOR SHIPS TO FUEL IN PUERTO RICAN PORTS AND THUS DRIVE THEM TO FUEL IN
FOREIGN OR OTHER PORTS.  THE DEBATES IN CONGRESS ON THE REVENUE ACT OF
1932 AND ITS AMENDMENTS SHOW THAT CONGRESS HAD PRECISELY THIS SITUATION
IN MIND WHEN IT EXEMPTED SHIPS' SUPPLIES FROM TAXES. 

MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S. 33, HELD THAT
THE NEW YORK CITY SALES TAX WAS APPLICABLE TO A CONTRACT OF SALE MADE
IN NEW YORK FOR DELIVERY IN NEW YORK FROM PENNSYLVANIA.  BUT THIS COURT
HAS NEVER HELD THAT THE STATE OF EXIT COULD LEVY A TAX ON GOODS MOVING
IN INTERSTATE COMMERCE OR ON THE TRANSACTION MOVING THEM.  IN THE
INSTANT CASE, THE FUEL OIL IS MOVED OUT OF PUERTO RICO TO THE HIGH SEAS
BY THE TRANSACTION ATTEMPTED TO BE TAXED, AND THE CONTRACT FOR SALE IS
NOT MADE IN PUERTO RICO; WITH THE ADDED IMPORTANT FACT THAT THE FUEL
OIL WAS NEVER TECHNICALLY IN PUERTO RICO, BUT WAS UNDER THE CONTROL OF
THE UNITED STATES CUSTOMS SERVICE AT ALL TIMES.  ON PRINCIPLE, THIS
CASE IS ANALOGOUS TO THE CASE OF MCGOLDRICK V. GULF OIL CORPORATION,
309 U.S. 414. 

MR. WILLIAM CATTRON RIGBY, WITH WHOM MESSRS.  GEORGE A. MALCOLM,
ATTORNEY GENERAL OF PUERTO RICO, AND NATHAN R. MARGOLD WERE ON THE
BRIEF, FOR RESPONDENT. 

THIS TAX ON SALES IS AN EXCISE. 

THE POWER OF THE LEGISLATURE EXTENDS TO LEVYING AN EXCISE ON THE
BUSINESS ACTIVITIES OF A DOMESTIC CORPORATION OF PUERTO RICO,
REGARDLESS OF WHETHER THE SUBJECT MATTER OF THOSE ACTIVITIES, IF, AS
HERE, MOVABLE PERSONAL PROPERTY, IS THEN ACTUALLY LOCATED WITHIN THE
JURISDICTIONAL TERRITORIAL LIMITS OF PUERTO RICO, OR NOT.  PLAINTIFF'S
DEPOSIT OF THE OIL IN A BONDED WAREHOUSE IS, THEREFORE, IMMATERIAL
HERE, FOR ANY PURPOSE. 

THE SALES WERE MADE "IN PUERTO RICO," WITHIN THE MEANING OF SEC. 62
OF THE LOCAL EXCISE LAW HERE INVOLVED. 

THE ESTABLISHED RULE OF THE RESPECT TO BE ACCORDED TO THE DECISION OF
A LOCAL TERRITORIAL SUPREME COURT, INTERPRETING LOCAL TERRITORIAL
STATUTES AND LAWS, IS PECULIARLY APPLICABLE HERE. 

THE LEVY OF THIS EXCISE ON THE FIRST SALE IN PUERTO RICO OF THIS OIL
IS WITHIN THE AUTHORITY EXPRESSLY GRANTED BY THE CONGRESS BY THE
PROVISO ADDED TO SEC. 3 OF THE ORGANIC ACT BY THE BUTLER ACT AMENDMENT
OF MARCH 4, 1927, AUTHORIZING THE LEVY AND COLLECTION OF INTERNAL
REVENUE TAXES BY THE LEGISLATURE OF PUERTO RICO, "ON THE ARTICLES
SUBJECT TO SAID TAX, AS SOON AS THE SAME ARE ... BROUGHT INTO THE
ISLAND," AND DIRECTING THE OFFICIALS OF THE CUSTOMS AND POSTAL SERVICES
OF THE UNITED STATES "TO ASSIST THE APPROPRIATE OFFICIALS OF THE PORTO
RICAN GOVERNMENT IN THE COLLECTION OF THESE TAXES." 

THAT THIS OIL WAS BROUGHT IN FROM A FOREIGN COUNTRY, AND THAT THE
SALE IN PUERTO RICO WAS ITS FIRST SALE AFTER LANDING, IS IMMATERIAL. 

THE LEGISLATIVE HISTORY OF THE BUTLER ACT EMPHASIZES THE INTENTION OF
THE CONGRESS. 

THE COMMERCE CLAUSE IS NOT APPLICABLE. 

IT IS WHOLLY IMMATERIAL THAT CONGRESS BY SEC. 309 OF THE TARIFF ACT
OF 1930 DIRECTED THAT FEDERAL TARIFF TAXES AND DUTIES SHOULD BE
REMITTED UPON OIL IMPORTED FROM FOREIGN COUNTRIES AND USED FOR THE
PROPULSION OF SHIPS IN DOMESTIC COMMERCE BETWEEN PUERTO RICO (OR OTHER
OFF-SHORE TERRITORIES OR POSSESSIONS) AND THE MAINLAND.  THERE IS NO
REPEAL OF THE LOCAL TAXING POWERS EXPRESSLY GRANTED THE LEGISLATURE OF
PUERTO RICO. 

THIS CASE IS NOT GOVERNED BY MCGOLDRICK V. GULF OIL CORPORATION, 309
U.S. 414. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER A PUERTO RICO SALES TAX IMPOSED BY SECS.
16(A), 62 OF THE INTERNAL REVENUE ACT OF PUERTO RICO, (AS AMENDED BY
ACT NO. 17 OF JUNE 3, 1927, LAWS OF 1927, SPECIAL SESSION, PP. 458
486), IS INVALID BECAUSE AS APPLIED IT INFRINGES CONGRESSIONAL
REGULATIONS OF FOREIGN AND DOMESTIC COMMERCE EFFECTED BY THE TARIFF
LAWS AND CUSTOMS REGULATIONS OF THE UNITED STATES.  THE TAX IS
CHALLENGED SO FAR AS IT IS LAID ON THE DELIVERY, IN CONSUMMATION OF
SALES, OF FUEL OIL WHICH HAS PREVIOUSLY BEEN IMPORTED IN BOND AND THEN
WITHDRAWN, DUTY FREE, FOR DELIVERY TO VESSELS IN PUERTO RICAN PORTS FOR
USE AS FUEL UPON THEIR VOYAGES TO PORTS OF THE UNITED STATES OR FOREIGN
COUNTRIES.  THE COURT OF APPEALS FOR THE FIRST CIRCUIT HAS AFFIRMED THE
JUDGMENT OF THE SUPREME COURT OF PUERTO RICO SUSTAINING THE TAX, 54
P.R. DEC. 732(SPANISH EDITION).  108 F.2D 144.  WE GRANTED CERTIORARI,
309 U.S. 652, BECAUSE THE QUESTION PRESENTED IS OF IMPORTANCE IN THE
ADMINISTRATION OF THE CUSTOMS LAWS OF THE UNITED STATES AND OF THE
REVENUE LAWS OF PUERTO RICO, AND BECAUSE OF AN ASSERTED CONFLICT WITH
OUR DECISION IN MCGOLDRICK V. GULF OIL CORP., 309 U.S. 414. 

PETITIONER BRINGS FUEL OIL FROM A FOREIGN COUNTRY, WHERE IT IS
PRODUCED AND REFINED, TO PUERTO RICO, WHERE IT IS STORED IN BONDED
WAREHOUSES IN THE JOINT CUSTODY OF PETITIONER AND THE CUSTOMS OFFICERS
OF THE UNITED STATES, AS PROVIDED BY SEC. 555 OF THE TARIFF ACT OF
1930, 46 STAT. 743, 19 U.S.C. SEC. 1555, AND APPLICABLE CUSTOMS
REGULATIONS.  FROM TIME TO TIME PETITIONER WITHDRAWS SOME OF THE OIL
FROM BOND, FOR DISPOSITION AND USE IN PUERTO RICO.  PETITIONER ALSO
WITHDRAWS SOME OF THE OIL, WITH WHICH WE ARE NOW CONCERNED, AND
DELIVERS IT TO VESSELS IN PUERTO RICAN PORTS UPON SALES FOR USE AS
SHIPS' STORES IN THE MANNER ALREADY INDICATED.  UPON SUCH WITHDRAWAL
AND DELIVERY THE IMPORT TAX IMPOSED ON FUEL OIL BY SEC. 601(A)(C)(4) OF
THE REVENUE ACT OF 1932, 47 STAT. 169, 259-260, AND REQUIRED BY SEC.
601(B) TO BE "TREATED FOR THE PURPOSES OF ALL PROVISIONS OF LAW
RELATING TO THE CUSTOMS REVENUE AS A DUTY IMPOSED BY  ...  (THE TARIFF
ACT OF 1930)" IS REMITTED PURSUANT TO SEC. 309 OF THE TARIFF ACT OF
1930, 46 STAT. 590, 690 AND SEC. 630 OF THE ACT OF 1932, ADDED BY THE
AMENDMENT OF JUNE 16, 1933, 48 STAT. 256. 

UNDER TREASURY REGULATIONS, OF ARTICLES OF FOREIGN MANUFACTURE OR
PRODUCTION FOR USE AS SHIPS' SUPPLIES, AND SECS. 601(B), 630 OF THE
REVENUE ACT OF 1932 EXTEND THE BENEFIT OF THOSE PROVISIONS TO FUEL OIL
IMPORTED IN BOND AND WITHDRAWN AND "SOLD FOR USE AS FUEL  ...  ON
VESSELS  ...  ENGAGED IN FOREIGN TRADE OR TRADE  ... BETWEEN THE UNITED
STATES AND ANY OF ITS POSSESSIONS."  SEE MCGOLDRICK V. GULF OIL CORP.,
SUPRA, 423 ET SEQ. 

IT IS TRUE, AS PETITIONER URGES, THAT IN MCGOLDRICK V. GULF OIL
CORP., SUPRA, WE HELD THAT THE PROVISIONS OF THE TARIFF ACT OF 1930 AND
OF THE REVENUE ACT OF 1932, AND THE CUSTOMS REGULATIONS RELATING TO
BONDED MANUFACTURING WAREHOUSES, WHEN APPLIED TO CRUDE OIL IMPORTED
INTO NEW YORK AND THERE MANUFACTURED INTO FUEL OIL IN BONDED WAREHOUSES
AND WITHDRAWN DUTY FREE FOR SALE AS SHIPS' STORES, MANIFESTED AN
INTENTION OF CONGRESS TO REGULATE THE FOREIGN COMMERCE INVOLVED, IN THE
INTEREST OF AND FOR THE PROTECTION OF AMERICAN MANUFACTURERS, AND THAT
A STATE TAX ON THE SALE WAS INVALID BECAUSE IN CONFLICT WITH SUCH
REGULATION.  WE DO NOT STOP TO CONSIDER WHETHER, AS RESPONDENT INSISTS,
A DIFFERENT RESULT SHOULD BE REACHED HERE BECAUSE THE IMPORTED OIL WAS
IMPORTED IN ITS MANUFACTURED STATE AND WAS NOT, AS IN THE GULF OIL
CASE, EARMARKED FOR MANUFACTURE IN BONDED WAREHOUSE AND WITHDRAWN AFTER
MANUFACTURE FOR SALE AS SHIPS' STORES.  WE NEED NOT NOW DETERMINE
WHETHER STANDING ALONE THE STATUTORY CHARACTERIZATION OF THE OIL SOLD
AS SHIPS' SUPPLIES AS "EXPORTS" WITHIN THE MEANING OF THE CUSTOMS LAWS,
SEC. 309(B) TARIFF ACT OF 1930; SEC. 630 OF THE REVENUE ACT OF 1932,
DOES MORE THAN MAKE APPLICABLE TO IT THE PROVISIONS OF THE TARIFF ACT
OF 1930 FOR REMISSION OF CUSTOMS DUTIES UPON MERCHANDISE IMPORTED IN
BOND AND LATER EXPORTED.  NOR IS IT NECESSARY TO EXAMINE THE VARIOUS
ARGUMENTS ADVANCED THAT THE TAX, WITHOUT THE CONSENT OF CONGRESS, IS AN
INFRINGEMENT OF ITS CONSTITUTIONAL POWER OVER COMMERCE.  FOR WE THINK A
SUFFICIENT ANSWER TO ALL THE CONTENTIONS OF PETITIONER IS TO BE FOUND
IN THE CONGRESSIONAL CONSENT TO THE TAX GIVEN BY THE MARCH 4, 1927
AMENDMENT OF SEC. 3 OF THE ORGANIC ACT OF PUERTO RICO, 44 STAT. 1418. 

BEFORE THE AMENDMENT, SEC. 3 HAD PROHIBITED DUTIES "ON EXPORTS FROM
PUERTO RICO," BUT HAD PROVIDED THAT "TAXES AND ASSESSMENTS ON PROPERTY,
INTERNAL REVENUE" ETC., "MAY BE IMPOSED FOR THE PURPOSES OF THE INSULAR
AND MUNICIPAL GOVERNMENTS, RESPECTIVELY, AS MAY BE PROVIDED AND DEFINED
BY THE LEGISLATURE OF PUERTO RICO.  ...  "  CONGRESS, BY THE AMENDMENT,
ADDED TO SEC. 3 A PROVISO "THAT THE INTERNAL-REVENUE TAXES LEVIED BY
THE LEGISLATURE OF PUERTO RICO IN PURSUANCE OF THE AUTHORITY GRANTED BY
THIS ACT ON ARTICLES, GOODS, WARES OR MERCHANDISE MAY BE LEVIED AND
COLLECTED AS SUCH LEGISLATURE MAY DIRECT, ON THE ARTICLES SUBJECT TO
SAID TAX, AS SOON AS THE SAME ARE MANUFACTURED, SOLD, USED, OR BROUGHT
INTO THE ISLAND:  PROVIDED, THAT NO DISCRIMINATION BE MADE BETWEEN THE
ARTICLES IMPORTED FROM THE UNITED STATES OR FOREIGN COUNTRIES AND
SIMILAR ARTICLES PRODUCED OR MANUFACTURED IN PUERTO RICO.  THE
OFFICIALS OF THE CUSTOMS AND POSTAL SERVICES OF THE UNITED STATES ARE
HEREBY DIRECTED TO ASSIST THE APPROPRIATE OFFICIALS OF THE PUERTO RICAN
GOVERNMENT IN THE COLLECTION OF THESE TAXES." 

THE PLAIN PURPORT OF THE WORDS OF THIS PROVISO IS THAT ANY TAX
AUTHORIZED BY THE ORGANIC ACT WITH RESPECT TO ARTICLES OF DOMESTIC
PRODUCTION MAY LIKEWISE BE LEVIED WITH RESPECT TO IMPORTED ARTICLES "AS
SOON AS  ...  (THEY)  ...  ARE MANUFACTURED, SOLD, USED, OR BROUGHT
INTO THE ISLAND" PROVIDED ONLY THAT THERE BE NO TAX DISCRIMINATION
BETWEEN ARTICLES BROUGHT FROM THE UNITED STATES AND FOREIGN COUNTRIES
AND DOMESTIC ARTICLES.  THE AMENDMENT SEEMS TO HAVE BEEN OCCASIONED BY
DOUBTS WHICH HAD ARISEN WHETHER MERCHANDISE BROUGHT TO THE ISLAND FROM
THE UNITED STATES WAS SUBJECT TO LOCAL TAXATION WHILE IN THE ORIGINAL
PACKAGE AND ALSO WHETHER THE MERCHANDISE HAS, WHILE IN THE CONTROL OF
THE CUSTOMS AUTHORITIES, THE SAME STATUS AS RESPECTS LOCAL TAXATION AS
GOODS SIMILARLY CONTROLLED WHICH HAVE BEEN IMPORTED FROM FOREIGN
COUNTRIES AND WHETHER THE POWER OF THE INSULAR LEGISLATURE TO TAX
IMPORTS FROM FOREIGN COUNTRIES WAS ANY GREATER THAN THAT OF THE STATES
WHICH ARE FORBIDDEN, BY CLAUSE 2, OF SEC. 10 OF ART. I OF THE
CONSTITUTION, TO TAX IMPORTS AND EXPORTS WITHOUT THE CONSENT OF
CONGRESS.  S. REPT. NO. 1011, 69TH CONG., 1ST SESS., P. 2.  CF.
SONNEBORN BROS. V. CURETON, 262 U.S. 506, WITH BALDWIN V. SEELIG, 294
U.S. 511, 526.  THESE QUESTIONS WERE INVOLVED IN PUERTO RICO TAX
APPEALS, 16 F.2D 545, DECIDED JANUARY 7, 1927, SHORTLY BEFORE THE
AMENDMENT OF SEC. 3 OF THE ORGANIC ACT.  THE JUDGMENTS IN THAT CASE
WERE REVERSED AND THE SUITS ORDERED DISMISSED BY THIS COURT FOR WANT OF
JURISDICTION, OCTOBER 24, 1927(275 U.S. 56), AFTER THE AMENDMENT TO THE
ORGANIC ACT OF MARCH 4, 1927, WHICH DEPRIVED THE FEDERAL COURTS OF
JURISDICTION IN THE PENDING AND OTHER LIKE SUITS TO RESTRAIN THE
ASSESSMENT AND COLLECTION OF PUERTO RICO TAXES. 

MOREOVER PRACTICAL DIFFICULTIES APPEAR TO HAVE BEEN EXPERIENCED IN
LEVYING INSULAR TAXES UPON GOODS ON THEIR ARRIVAL FROM THE UNITED
STATES AND WHILE IN THE CUSTODY OR CONTROL OF POSTAL OR CUSTOMS
OFFICERS, DUE TO THE FACT THAT THE LOCAL TAX WHILE IN ITS PRACTICAL
EFFECT A CUSTOMS DUTY WAS NOT COLLECTED BY POSTAL OR CUSTOMS
OFFICIALS.  S. REPT. NO. 1011, 69TH CONG., 1ST SESS.  THE DOUBTS AND
THE DIFFICULTY WERE REMOVED BY THE AMENDMENT TO SEC. 3, GIVING THE
CONGRESSIONAL CONSENT THAT ARTICLES SHOULD BE SUBJECT TO THE TAXING
JURISDICTION OF THE PUERTO RICO LEGISLATURE AS SOON AS BROUGHT INTO THE
ISLAND WHETHER FROM THE UNITED STATES OR FROM FOREIGN COUNTRIES, AND
DIRECTING THAT THE UNITED STATES CUSTOMS OFFICIALS AND POSTAL SERVICE
SHOULD AID LOCAL OFFICERS IN THE COLLECTION OF THE TAX.  THE EFFECT OF
THE BROAD LANGUAGE OF THE AMENDMENT WAS NOT ONLY TO SUBJECT TO TAXATION
ALL IMPORTED GOODS, WHETHER FROM THE UNITED STATES OR FOREIGN
COUNTRIES, WHEN BROUGHT INTO THE ISLAND IN THE ORIGINAL PACKAGE, BUT TO
NEUTRALIZE THE REGULATORY EFFECT OF THE CUSTOMS LAWS AND REGULATIONS IN
SO FAR AS THEY PROTECTED ARTICLES FROM LOCAL TAXATION AFTER THEIR
ARRIVAL.  MERCHANDISE IN THE ORIGINAL PACKAGE WAS THUS SUBJECTED TO TAX
WHEN BROUGHT INTO THE ISLAND WITHOUT REGARD TO CUSTOMS REGULATIONS.  IT
WOULD SEEM PLAIN THAT OTHER MERCHANDISE NOT IN THE ORIGINAL PACKAGE WAS
LEFT IN NO MORE FAVORABLE SITUATION AND IN THE FACE OF THE BROAD AND
UNAMBIGUOUS LANGUAGE OF THE STATUTE WE CANNOT SAY THAT THE ONE, MORE
THAN THE OTHER, IS IMMUNE FROM LOCAL TAXATION.  EVEN IF THE OIL SOLD AS
SHIPS' STORES WERE TO BE REGARDED AS "EXPORTED," CF. SWAN & FINCH CO.
V. UNITED STATES, 190 U.S. 143, 145; UNITED STATES V. CHAVEZ, 228 U.S.
525; CUNARD S.S. CO. V. MELLON, 262 U.S. 100, THE TAX IS ONE CLEARLY
WITHIN THE TERMS OF THE PROVISO ADDED TO SEC. 3 AND SO IS ONE CONSENTED
TO BY THE UNITED STATES. 

THE PROCEDURE FOR SEGREGATING IMPORTED MERCHANDISE IN BOND WITHOUT
PAYMENT OF CUSTOMS DUTIES PENDING ITS WITHDRAWAL AND SHIPMENT OUT OF
THE COUNTRY IS OLD, LONG ANTEDATING THE AMENDMENT OF SEC. 3 OF THE
ORGANIC ACT.  SEE MCGOLDRICK V. GULF OIL CORP., SUPRA.  THE LATER ACTS
OF 1930 AND 1932 THUS PLACED FUEL OIL, SO FAR AS PUERTO RICO IS
CONCERNED, IN THE SAME CATEGORY AS OTHER MERCHANDISE BROUGHT INTO THE
ISLAND IN THE ORIGINAL PACKAGE OR IN BOND WHICH, BY VIRTUE OF THE
PROVISO OF SEC. 3 OF THE ORGANIC ACT, WAS MADE SUBJECT TO LOCAL
TAXATION AS SOON AS BROUGHT INTO THE ISLAND.  THE EXTENSION BY CONGRESS
TO FUEL OIL OF THE BENEFITS OF THE CUSTOMS LAWS AND REGULATIONS
AFFECTING MERCHANDISE IMPORTED IN BOND DID NOT IMPLY THAT THOSE LAWS
AND REGULATIONS WERE TO BE GIVEN ANY DIFFERENT EFFECT IN PUERTO RICO
THAN THEY THEN WERE PERMITTED TO HAVE UNDER SEC. 3 OF THE ORGANIC ACT. 
IN ANY EVENT, CONSIDERING THE RELATIONSHIP OF GENERAL CONGRESSIONAL
LEGISLATION TO LEGISLATION SPECIFICALLY APPLICABLE TO OUR TERRITORIES
AND POSSESSIONS, REPEALS BY IMPLICATION ARE NOT TO BE FAVORED AND WILL
NOT BE ADJUDGED UNLESS THE LEGISLATIVE INTENTION TO REPEAL IS CLEAR. 
POSADAS V. NATIONAL CITY BANK, 296 U.S. 497, 501 ET SEQ. AFFIRMED. 

MR. JUSTICE REED, DISSENTING. 

THIS JUDGMENT SHOULD BE REVERSED ON THE AUTHORITY OF MCGOLDRICK V.
GULF OIL CORP., 309 U.S. 414.  THAT CASE HAS JUST ESTABLISHED THE
SUPERIORITY OF A FEDERAL STATUTE FOR THE PROTECTION OF COMMERCE OVER A
STATE'S RIGHT TO LEVY A SALES TAX.  IN IT WE POINTED OUT THAT IT WAS
INCONSISTENT WITH THE PLENARY POWER OF CONGRESS OVER COMMERCE TO PERMIT
LOCAL EXACTIONS TO CUT INTO THE COMPETITIVE ADVANTAGES PROVIDED THROUGH
THE REMISSION OF CUSTOMS DUTIES TO SUPPLIERS AND EXPORTERS BY THE SHIP
STORES AND FUEL OIL PROVISIONS OF SEC. 309 OF THE TARIFF ACT OF 1930
AND SEC. 601(B) AND SEC. 630 OF THE REVENUE ACT OF 1932.  CONGRESS
AUTHORIZED THESE ADVANTAGES TO GIVE OUR SHIP CHANDLERS OPPORTUNITY TO
COMPETE FOR THIS TRADE ON AN EVEN BASIS WITH NONRESIDENTS.  THE GULF
OIL CASE HELD THAT IMPORTED FUEL OIL CARRIED IN NEW YORK BONDED
WAREHOUSES FOR EXPORT MIGHT BE SOLD, UNDER TREASURY OVERSIGHT, TO
NONCOASTWISE SHIPPING WITHOUT PAYMENT OF THE CITY SALES TAX.  THE
OPINION DEMONSTRATED THAT THE PURPOSE OF CONGRESS WOULD BE THWARTED IF
LOCAL TAXATION WERE PERMITTED TO INTERFERE.  THE SAME HOLDING IN MY
OPINION IS REQUIRED HERE. 

FUEL OIL IMPORTS INTO PUERTO RICO ARE GOVERNED BY THE SAME TARIFF
PROVISIONS, REGULATIONS FOR BONDED WAREHOUSES AND DELIVERIES IN BOND TO
PURCHASERS FOR USE IN OVERSEAS VOYAGES AS ARE THOSE INTO THE
CONTINENTAL UNITED STATES.  THE LANGUAGE OF THE BUTLER ACT IS HELD BY
THE COURT TO REQUIRE DIFFERENT TREATMENT IN NEW YORK OR PUERTO RICO OF
THE SAME SITUATION, DESPITE THE TAX INEQUALITY PRODUCED BETWEEN THE
RESPECTIVE TAXING UNITS.  ONE WOULD EXPECT THAT PUERTO RICO WOULD HAVE
NO MORE AUTHORITY THAN A STATE TO LEVY A SALES TAX ON BONDED FUEL OIL;
BUT THIS COURT'S RULING PERMITS IT TO TAX WHERE NEW YORK FAILED. 

THE AUTHORITY IS SAID TO LIE IN THE GRANT BY CONGRESS TO PUERTO RICO
OF THE RIGHT TO TAX "AS SOON AS THE SAME (ARTICLES SUBJECT TO TAX) ARE
MANUFACTURED, SOLD, USED, OR BROUGHT INTO THE ISLAND."  AS THE FUEL OIL
IS BROUGHT INTO THE ISLAND, THIS COURT'S OPINION CONCLUDES, IT IS
TAXABLE.  THE REPORT UPON THE BUTLER ACT POINTS OUT THE REASON FOR ITS
ENACTMENT.  FN1  IT WAS TO ENABLE PUERTO RICO TO TAX IN THE ORIGINAL
PACKAGE.  IT SHOULD TAKE MORE THAN A GENERAL TAX AUTHORIZATION TO
DESTROY THE SYMMETRY OF THE FEDERAL CONTROL OVER IMPORTS BONDED FOR
EXPORT AND TO PERMIT LOCAL TAXATION IN PUERTO RICO OF WHAT IS FREE FROM
LOCAL TAXATION IN NEW YORK.  "BROUGHT" SHOULD BE CONSTRUED TO MEAN WHEN
GOODS PASS FROM THE CUSTOMS CONTROL TO PRIVATE CONTROL, OR THE
AUTHORITY TO TAX OF THE BUTLER ACT SHOULD BE HELD TO BE SUBJECT TO THE
FEDERAL POWER OF TAX EXEMPTION EXERCISED GENERALLY IN FAVOR OF FUEL OIL
BY SEC. 309 OF THE TARIFF ACT OF 1930 AND SEC. 601(B) AND SEC. 630 OF
THE REVENUE ACT OF 1932.  SINCE THE RIGHT TO TAX IMPORTS IN THE
ORIGINAL PACKAGE, GRANTED PUERTO RICO BY THE BUTLER ACT, MERELY MAKES
GOODS IN THE ORIGINAL PACKAGE IN PUERTO RICO TAXABLE AS OTHER GOODS IN
THE COMMON MASS OF TAXABLE PROPERTY, THE BUTLER ACT GIVES TO PUERTO
RICO NO BROADER POWER TO TAX OIL SALES THAN WAS POSSESSED BY NEW YORK,
BY VIRTUE OF ITS SOVEREIGN POWER, IN THE GULF OIL CASE.  MCGOLDRICK V.
BERWIND-WHITE CO., 309 U.S. 33.  NOTHING REQUIRES US TO FRUSTRATE THE
LEGISLATIVE POLICY OF FREE COMPETITION IN WORLD MARKETS. 

THE DECREE BELOW SHOULD BE REVERSED. 

FN1  "IN MAKING USE OF THE AUTHORITY GRANTED BY SECTION 3 TO LEVY AND
COLLECT INTERNAL-REVENUE TAXES THE GOVERNMENT OF PORTO RICO HAS FOUND
ITSELF UNABLE TO COLLECT SAID TAXES ON ARTICLES PURCHASED IN AND SENT
FROM THE UNITED STATES TO PORTO RICO BY MAIL, OR SOMETIMES WHEN SAID
ARTICLES ARE SENT BY VESSEL, AS THE COURTS HAVE HELD THAT THE POST
OFFICE OR CUSTOMS OFFICIALS HAVE NO AUTHORITY TO WITHHOLD (THE)
DELIVERY OF SUCH ARTICLES SUBJECT TO THE INTERNAL-REVENUE TAX UNTIL THE
TAX IS PAID, AS SUCH TAX COLLECTED IN THIS MANNER IS IN EFFECT A
CUSTOMS DUTY.  IN OTHER WORDS, THE COURTS HAVE HELD THAT THE INTERNAL
REVENUE TAX CAN NOT BE COLLECTED WHILE THE ARTICLE SUBJECT TO THE TAX
IS IN THE ORIGINAL PACKAGE. 

"THIS CONDITION OF AFFAIRS HAS PRACTICALLY NULLIFIED THE POWER OF THE
INSULAR GOVERNMENT TO LEVY INTERNAL-REVENUE TAXES, AND THEREFORE THE
EFFICACY OF THIS SOURCE OF REVENUE HAS BEEN SERIOUSLY IMPAIRED. 

"FOR THE PURPOSE OF RIGHTING THIS SITUATION, A NEW PROVISION IS ADDED
TO SECTION 3, WHICH STATES AS FOLLOWS: 

"AND IT IS FURTHER PROVIDED, THAT THE INTERNAL-REVENUE TAXES LEVIED
BY THE LEGISLATURE OF PORTO RICO IN PURSUANCE OF THE AUTHORITY GRANTED
BY THIS ACT ON ARTICLES, GOODS, WARES, OR MERCHANDISE MAY BE LEVIED AND
COLLECTED AS SUCH LEGISLATURE MAY DIRECT, ON THE ARTICLES SUBJECT TO
SAID TAX, AS SOON AS THE SAME ARE MANUFACTURED, SOLD, USED, OR BROUGHT
INTO THE ISLAND:  PROVIDED, THAT NO DISCRIMINATION IN RATES BE MADE
BETWEEN THE ARTICLES IMPORTED FROM THE UNITED STATES OR FOREIGN
COUNTRIES AND SIMILAR ARTICLES PRODUCED OR MANUFACTURED IN PORTO RICO. 
THE OFFICIALS OF THE CUSTOMS AND POSTAL SERVICES OF THE UNITED STATES
ARE HEREBY DIRECTED TO ASSIST THE APPROPRIATE OFFICIALS OF THE PORTO
RICAN GOVERNMENT IN THE COLLECTION OF THESE TAXES. 

"IT IS EXPECTED THAT THE GOVERNMENT OF PORTO RICO WILL SO MAKE USE OF
THIS POWER AS NOT TO UNNECESSARILY PLACE ANY BARRIERS IN THE WAY OF THE
FREE-TRADE CONDITIONS NOW EXISTING BETWEEN (PORTO RICO) AND THE
MAINLAND, WHICH IS THE PRINCIPAL FACTOR IN THE PROGRESS AND PROSPERITY
OF PORTO RICO."  (SENATE REP. NO. 1011, 69TH CONG., 1ST SESS., P. 2.) 

MR. JUSTICE ROBERTS JOINS IN THIS OPINION. 
..END :













HANSBERRY V. LEE, 311 U.S. 32 


NO. 29.  ARGUED OCTOBER 25, 1940.  - DECIDED NOVEMBER 12, 1940.  - 372
ILL. 369 - 24 N.E.2D 37, REVERSED. 


NUMEROUS OWNERS OF LOTS IN A PARTICULAR AREA AGREED IN WRITING, EACH
SEVERALLY WITH EACH OF THE OTHERS, THAT THEIR LOTS SHOULD NOT BE SOLD
TO OR OCCUPIED BY NEGROES, THE EFFECTIVENESS OF THE AGREEMENT BEING
CONDITIONED, HOWEVER, UPON SIGNING BY OWNERS OF A SPECIFIED PERCENTAGE
OF THE LOT FRONTAGE.  IN A CASE IN A STATE COURT, TRIED UPON AN AGREED
STATEMENT OF FACTS, IN WHICH IT WAS STIPULATED (ERRONEOUSLY) THAT THIS
CONDITION HAD BEEN COMPLIED WITH, AND IN WHICH THE ISSUE LITIGATED WAS
WHETHER THE AGREEMENT HAD CEASED TO BE ENFORCEABLE IN EQUITY BY REASON
OF CHANGES IN THE RESTRICTED AREA, AN OWNER OF ONE OF THE LOTS, SUING
IN BEHALF OF HIMSELF AND OF OTHERS IN LIKE SITUATION, OBTAINED A DECREE
ENJOINING VIOLATION OF THE AGREEMENT BY FOUR INDIVIDUALS, WHO ASSERTED
AN INTEREST IN THE RESTRICTED LAND THROUGH ANOTHER SIGNER OF THE
AGREEMENT, BUT WHO WERE NOT TREATED BY THE PLEADINGS OR DECREE AS
REPRESENTING OTHERS OR AS FORECLOSING BY THEIR DEFENSE THE RIGHTS OF
OTHERS, AND WHOSE INTEREST IN DEFEATING THE CONTRACT DID NOT APPEAR TO
OUTWEIGH THEIR INTEREST IN SUSTAINING IT.  HELD: 

1.  THAT OTHERS WHO WERE PRIVY TO THE AGREEMENT, BUT NOT MADE PARTIES
TO THE LITIGATION, AND WHOSE SUBSTANTIAL INTEREST WAS IN RESISTING
PERFORMANCE OF THE AGREEMENT, COULD NOT BE BOUND BY THE DECREE UPON THE
THEORY THAT THE SUIT WAS A CLASS SUIT IN WHICH THEY WERE DULY
REPRESENTED.  PP. 39, 44. 

2.  THAT A DECREE OF THE STATE COURT IN A SECOND, SIMILAR SUIT,
ADJUDGING SUCH OTHER PERSONS ESTOPPED BY THE FORMER DECREE AS RES
JUDICATA FROM DEFENDING UPON THE GROUND THAT THE CONDITION PRECEDENT OF
THE AGREEMENT HAD NOT BEEN FULFILLED, WAS IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 40, 44. 

HANSBERRY ET AL. V. LEE ET AL. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

CERTIORARI, 309 U.S. 652, TO REVIEW THE AFFIRMANCE OF A DECREE IN
EQUITY ENJOINING A VIOLATION OF AN AGREEMENT OF LOT-OWNERS RESTRICTING
THE SALE AND USE OF LOTS IN A PARTICULAR AREA. 

MR. EARL B. DICKERSON, WITH WHOM MESSRS.  TRUMAN K. GIBSON, JR., C.
FRANCIS STRADFORD, LORING B. MOORE, AND IRVIN C. MOLLISON WERE ON THE
BRIEF, FOR PETITIONERS. 

THE APPLICATION OF THE DOCTRINE OF RES JUDICATA WAS NOT DUE PROCESS
OF LAW.  POSTAL CABLE TELEGRAPH CO. V. NEWPORT, 247 U.S. 464, 476;
BRINKERHOFF-FARIS TRUST & SAVINGS CO. V. HILL, 281 U.S. 673, 679-682;
CHASE NATIONAL BANK V. NORWALK, 291 U.S. 431; WINDSOR V. MCVEIGH, 93
U.S. 274, 277; FAYERWEATHER V. RITCH, 195 U.S. 276. 

BURKE V. KLEIMAN, 277 ILL. APP. 519, WAS NOT A CLASS OR
REPRESENTATIVE SUIT. 

THIS COURT IN WABASH RAILROAD CO. V. ADELBERT COLLEGE, 208 U.S. 38,
58, HAS SOUNDED A WARNING IN RESPECT TO THE DOCTRINE OF RES JUDICATA IN
REPRESENTATIVE SUITS. 

THE HOLDING OF THE BURKE V. KLEIMAN SUIT TO BE A REPRESENTATIVE SUIT
AND RES JUDICATA AGAINST THE PETITIONERS, DEPRIVED THE PETITIONERS OF
THE BENEFIT OF NOTICE AND A REAL OPPORTUNITY TO DEFEND.  WINDSOR V.
MCVEIGH, 93 U.S. 274, 277. 

A RESTRICTIVE AGREEMENT BETWEEN 500 OR MORE DIFFERENT PROPERTY OWNERS
OWNING AS MANY OR MORE DIFFERENT AND DISSIMILAR PARCELS OF REAL ESTATE
CAN NOT BE THE SUBJECTMATTER OF A CLASS OR REPRESENTATIVE SUIT, THERE
BEING NO COMMON RES, NO COMMON SUBJECT MATTER, AND NO IDENTITY OF
INTEREST AMONG THEM.  IN ORDER TO BRING A REPRESENTATIVE SUIT THERE
MUST BE SOME COMMON RIGHT, RES, TITLE OR COMMON SUBJECT MATTER OR
IDENTICAL INTEREST IN ALL OF THE MEMBERS OF THE CLASS.  SEE SMITH V.
SWORMSTEDT, 16 HOW.  288, 303; WABASH RAILROAD CO. V. ADELBERT COLLEGE,
208 U.S. 38, 57-59; CHRISTOPHER V. BRUSSELBACK, 302 U.S. 500, 505; HALE
V. HALE, 146 ILL. 227, 258; WEBERPALS V. JENNY, 300 ILL. 157; SAUNDERS
V. POLAND PARK CO., 198 A. 269. 

SEE ALSO:  POMEROY, EQUITY JURISPRUDENCE, 4TH ED. (1918), VOL. 1,
SEC. 268, P. 498.  SEE SCOTT V. DONALD, 165 U.S. 107, 115-117; CUTTING
V. GILBERT, 5 BLATCHFORD 259, 261. 

AN ALLEGATION IN A COMPLAINT THAT A PLAINTIFF BRINGS THE ACTION ON
BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED DOES NOT IN ITSELF
MAKE AN ACTION A CLASS SUIT.  SEE WABASH RAILROAD CO. V. ADELBERT
COLLEGE, 208 U.S. 38, 57-59; HAMMER V. NEW YORK RAILWAY CO., 244 U.S.
266, 273. 

A REPRESENTATIVE OR CLASS SUIT IF PERMITTED AND SUSTAINED IN A CASE
LIKE THIS WOULD DESTROY, ESSENTIALLY, ALL THE PERSONAL DEFENSES TO
WHICH EACH OWNER IS ENTITLED, NAMELY:  FORGERY OF SIGNATURES, FRAUD AND
TRICKERY IN OBTAINING SIGNATURES, SIGNING UPON THE CONDITION THAT A
CERTAIN NUMBER OF OTHER OWNERS WOULD SIGN, ALTERATION OF THE
INSTRUMENT, LACHES, WAIVER, ABANDONMENT, ESTOPPEL, AND CHANGE IN THE
CHARACTER OF THE NEIGHBORHOOD WHICH WOULD RENDER INEQUITABLE THE
ENFORCEMENT OF THE PURPORTED AGREEMENT.  EACH INDIVIDUAL PARTY
SIGNATORY IS ENTITLED TO PROVE AS TO THESE, NOT ONLY IN RESPECT TO
HIMSELF BUT IN RESPECT TO ALL OTHER PURPORTED PARTIES SIGNATORY, BY
WHOM AND WITH WHOM HE IS SOUGHT TO BE BOUND.  HE IS ENTITLED TO REQUIRE
PROOF OF OR TO DISPROVE THE EXISTENCE OF THE AGREEMENT. 

MERE NUMBER OF PARTIES DOES NOT SUSTAIN A REPRESENTATIVE OR CLASS
SUIT.  SEE MATTHEWS V. RODGERS, 284 U.S. 521, 529-530; HALE V.
ALLINSON, 188 U.S. 56, 77 ET SEQ.; ST. LOUIS, IRON MOUNTAIN & SOUTHERN
RY. CO. V. MCKNIGHT, 244 U.S. 368, 375; KELLEY V. GILL, 245 U.S. 116
120. 

THE PROOF SHOWED THAT THE CONDITION PRECEDENT WAS NOT COMPLIED WITH. 
CONSEQUENTLY, NO AGREEMENT EVER CAME INTO EFFECT AND THERE WAS NO CLASS
TO BE REPRESENTED BY ANY ONE.  THE COURT HAD NO JURISDICTION TO BIND
THE PETITIONERS AND THEIR PRIVIES, WHO WERE NOT PARTIES AND NOT SERVED
WITH SUMMONS OR PROCESS IN THE FIRST CAUSE.  THE DECREE OF BURKE V.
KLEIMAN WAS THEREFORE VOID AND COULD NOT BE PLEADED AS RES JUDICATA
AGAINST THESE PETITIONERS.  SEE SCOTT V. MCNEAL, 154 U.S. 34, 48-51;
GALPIN V. PAGE, 18 WALL.  350, 365, 366; OLD WAYNE LIFE ASSN. V.
MCDONOUGH, 204 U.S. 8, 14-18, 22, 23.  THOMPSON V. WHITMAN, 18 WALL. 
457. 

A JUDGMENT VOID FOR WANT OF JURISDICTION MAY BE COLLATERALLY ATTACKED
AT ANY TIME AND IN ANY COURT.  SEE GALPIN V. PAGE, 18 WALL.  350, 366,
367.  PRESUMPTIONS WILL NOT BE INDULGED TO SUPPLY A PROPER OR VALID
SUBJECT-MATTER OR JURISDICTIONAL FACT WHERE THE EVIDENCE AND RECORD IN
THE CASE SHOW THE CONTRARY.  GALPIN V. PAGE, SUPRA, 266. 

SUCH FRAUDULENT PROCEEDINGS AND DECREE CAN NOT BE RES JUDICATA
AGAINST ANY ONE.  HATFIELD V. KING, 184 U.S. 162; GETER V. HEWITT, 22
HOW.  364; LORD V. VEASIE, 8 HOW.  251, 253. 

THE DECREE ENTERED BY THE CHANCELLOR IN THE TRIAL COURT DEPRIVED THE
PETITIONERS OF THEIR RIGHTS BY THE ARBITRARY SEIZURE OF THEIR PROPERTY
BY A MASTER IN CHANCERY.  THE RESULT OF THIS ACTION WAS THE FORCEFUL
TRANSFER OF THE PROPERTY OF ONE CITIZEN TO ANOTHER.  THIS HARSH AND
OPPRESSIVE ACTION VIOLATED THE FOURTEENTH AMENDMENT.  CHICAGO, B. &
Q.R. CO. V. CHICAGO, 166 U.S. 226, 236, 237; MISSOURI PACIFIC RAILWAY
CO. V. NEBRASKA, 164 U.S. 403. 

THE ENFORCEMENT OF THE RESTRICTIVE AGREEMENT ABRIDGED THE RIGHTS,
PRIVILEGES AND IMMUNITIES OF PETITIONERS AS CITIZENS OF THE UNITED
STATES, IN VIOLATION OF THE FOURTEENTH AMENDMENT. 

MR. MCKENZIE SHANNON, WITH WHOM MESSRS.  ANGUS ROY SHANNON, WILLIAM
C. GRAVES, AND PRESTON B. KAVANAGH WERE ON THE BRIEF, FOR RESPONDENTS. 

RESTRICTIVE COVENANTS SUCH AS THIS ARE VALID AND DO NOT OFFEND THE
FEDERAL CONSTITUTION.  CORRIGAN V. BUCKLEY, 299 F. 899; 271 U.S. 323,
330; PARMALEE V. MORRIS, 218 MICH. 625; QUEENSBOROUGH LAND CO. V.
CAZEAUX, 136 LA. 724; LOS ANGELES INVESTMENT CO. V. GARY, 181 CAL. 680;
KOEHLER V. ROWLAND, 275 MO. 573; BURKE V. KLEIMAN, 277 ILL. APP. 519;
LEE V. HANSBERRY, 291 ILL. APP. 517. 

PETITIONERS CONTEND THAT ONE MEMBER OF A CLASS MAY NOT BE SUED BY
REPRESENTATIVES OF THE CLASS TO ENFORCE A COMMON RIGHT.  THE REASONING
THAT THE INTERESTS OF THE PERSON SUED ARE NECESSARILY IN CONFLICT WITH
THOSE OF THE CLASS WOULD PREVENT ALL MANNER OF CLASS SUITS.  SUCH IS
NOT THE LAW OF ILLINOIS, WHICH CONSIDERS ALL MEMBERS OF A CLASS HAVING
COMMON RIGHTS NEEDING PROTECTION BOUND BY THE DOCTRINE OF RES JUDICATA
IN A PROPER REPRESENTATIVE SUIT.  GROVES V. FARMERS STATE BANK, 368
ILL. 35, 47, 49; LEONARD V. BYE, 361 ILL. 185, 190, 192; SCHMIDT V.
MODERN WOODMEN, 261 ILL. APP. 276, 281; GREENBERG V. CHICAGO, 256 ILL.
213, 219; PEOPLE EX REL. MODERN WOODMEN V. CIRCUIT COURT, 347 ILL. 34,
46; HANNA V. READ, 102 ILL. 596, 602, 606; HARDING CO. V. HARDING, 352
ILL. 417, 426; BAYER V. BLOCK, 246 ILL. APP. 416, 421, 423, 424; PEOPLE
V. PRATHER, 343 ILL. 443, 447; KLUS V. RUSZEL, 353 ILL. 179, 183. 

RES JUDICATA IS A QUESTION OF STATE LAW.  KERSH LAKE DRAINAGE DIST.
V. JOHNSON, 309 U.S. 485, 491; OKLAHOMA PACKING CO. V. GAS CO., 309
U.S. 4, 8; UNION & PLANTERS BANK V. MEMPHIS, 189 U.S. 71, 75; COVINGTON
V. FIRST NATIONAL BANK, 198 U.S. 100, 109; WRIGHT V. GEORGIA RAILROAD &
BANKING CO., 216 U.S. 420, 429. 

THE DECISION BELOW WAS RESTED UPON A POINT OF STATE LAW ADEQUATE TO
SUPPORT IT.  THERE WAS NO FRAUD (EXCEPT SUCH AS CAN BE IMPUTED TO THE
PETITIONERS); AND, IN THE ABSENCE OF FRAUD, NO FEDERAL QUESTION FOR
REVIEW BY THIS COURT IS PRESENTED. 

THE OPINION OF THE SUPREME COURT OF ILLINOIS DOES NOT MENTION
PETITIONERS' CONTENTION THAT THE APPLICATION OF THE DOCTRINE IN THIS
CASE DENIES THEIR RIGHTS TO DUE PROCESS OF LAW AS CITIZENS OF THE
UNITED STATES.  THE CONTENTION WAS FORCIBLY URGED BELOW AND IT CAN NOT
BE ASSUMED TO HAVE BEEN IGNORED.  ON THE CONTRARY, IN BALANCING THE
EQUITIES, THE COURT MUST HAVE CONSIDERED THAT PETITIONERS' OWN
MISCONDUCT ESTOPPED THEM FROM ATTACKING RESPONDENTS' PLEA OF RES
JUDICATA, AND THAT THE DECREE BINDING THEM AS MEMBERS OF A CLASS WHOSE
RIGHTS WERE REPRESENTED IN THE PRIOR SUIT DOES NOT OFFEND THE
FOURTEENTH AMENDMENT. 

THE DECREE DOES NOT OFFEND THE FOURTEENTH AMENDMENT.  CORRIGAN V.
BUCKLEY, 299 F. 899; ENTERPRISE IRRIGATION DIST. V. FARMERS MUTUAL
CANAL CO., 243 U.S. 157, 166; COLGATE V. HARVEY, 296 U.S. 404, 427. 

SPECIFIC PERFORMANCE WAS PROPER.  HANSBERRY WAS NOT REQUIRED TO
CONVEY HIS FRAUDULENTLY ACQUIRED TITLE WITHOUT COMPENSATION.  HE WAS
AFFORDED THIRTY DAYS IN WHICH TO COMPLY WITH THE COVENANT, BY CONVEYING
TO ANY PERSON OTHER THAN A NEGRO FOR ANY CONSIDERATION OF HIS CHOICE. 

CF., CORNISH V. O'DONOGHUE, 30 F.2D 983; TORREY V. WOLFES, 6 F.2D
702; RUSSELL V. WALLACE, 30 F.2D 981; FOX RIVER CO. V. RAILROAD
COMMISSION, 274 U.S. 651, 657. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE SUPREME COURT OF ILLINOIS, BY ITS
ADJUDICATION THAT PETITIONERS IN THIS CASE ARE BOUND BY A JUDGMENT
RENDERED IN AN EARLIER LITIGATION TO WHICH THEY WERE NOT PARTIES, HAS
DEPRIVED THEM OF THE DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH
AMENDMENT. 

RESPONDENTS BROUGHT THIS SUIT IN THE CIRCUIT COURT OF COOK COUNTY,
ILLINOIS, TO ENJOIN THE BREACH BY PETITIONERS OF AN AGREEMENT
RESTRICTING THE USE OF LAND WITHIN A DESCRIBED AREA OF THE CITY OF
CHICAGO, WHICH WAS ALLEGED TO HAVE BEEN ENTERED INTO BY SOME FIVE
HUNDRED OF THE LANDOWNERS.  THE AGREEMENT STIPULATED THAT FOR A
SPECIFIED PERIOD NO PART OF THE LAND SHOULD BE "SOLD, LEASED TO OR
PERMITTED TO BE OCCUPIED BY ANY PERSON OF THE COLORED RACE," AND
PROVIDED THAT IT SHOULD NOT BE EFFECTIVE UNLESS SIGNED BY THE "OWNERS
OF 95 PER CENTUM OF THE FRONTAGE" WITHIN THE DESCRIBED AREA.  THE BILL
OF COMPLAINT SET UP THAT THE OWNERS OF 95 PER CENT OF THE FRONTAGE HAD
SIGNED; THAT RESPONDENTS ARE OWNERS OF LAND WITHIN THE RESTRICTED AREA
WHO HAVE EITHER SIGNED THE AGREEMENT OR ACQUIRED THEIR LAND FROM OTHERS
WHO DID SIGN; AND THAT PETITIONERS HANSBERRY, WHO ARE NEGROES, HAVE,
WITH THE ALLEGED AID OF THE OTHER PETITIONERS AND WITH KNOWLEDGE OF THE
AGREEMENT, ACQUIRED AND ARE OCCUPYING LAND IN THE RESTRICTED AREA
FORMERLY BELONGING TO AN OWNER WHO HAD SIGNED THE AGREEMENT. 

TO THE DEFENSE THAT THE AGREEMENT HAD NEVER BECOME EFFECTIVE BECAUSE
OWNERS OF 95 PER CENT OF THE FRONTAGE HAD NOT SIGNED IT, RESPONDENTS
PLEADED THAT THAT ISSUE WAS RES JUDICATA BY THE DECREE IN AN EARLIER
SUIT.  BURKE V. KLEIMAN, 277 ILL. APP. 519.  TO THIS PETITIONERS
PLEADED, BY WAY OF REJOINDER, THAT THEY WERE NOT PARTIES TO THAT SUIT
OR BOUND BY ITS DECREE, AND THAT DENIAL OF THEIR RIGHT TO LITIGATE, IN
THE PRESENT SUIT, THE ISSUE OF PERFORMANCE OF THE CONDITION PRECEDENT
TO THE VALIDITY OF THE AGREEMENT WOULD BE A DENIAL OF DUE PROCESS OF
LAW GUARANTEED BY THE FOURTEENTH AMENDMENT.  IT DOES NOT APPEAR, NOR IS
IT CONTENDED THAT ANY OF PETITIONERS IS THE SUCCESSOR IN INTEREST TO OR
IN PRIVITY WITH ANY OF THE PARTIES IN THE EARLIER SUIT. 

THE CIRCUIT COURT, AFTER A TRIAL ON THE MERITS, FOUND THAT OWNERS OF
ONLY ABOUT 54 PER CENT OF THE FRONTAGE HAD SIGNED THE AGREEMENT, AND
THAT THE ONLY SUPPORT OF THE JUDGMENT IN THE BURKE CASE WAS A FALSE AND
FRAUDULENT STIPULATION OF THE PARTIES THAT OWNERS OF 95 PER CENT HAD
SIGNED.  BUT IT RULED THAT THE ISSUE OF PERFORMANCE OF THE CONDITION
PRECEDENT TO THE VALIDITY OF THE AGREEMENT WAS RES JUDICATA AS ALLEGED
AND ENTERED A DECREE FOR RESPONDENTS.  THE SUPREME COURT OF ILLINOIS
AFFIRMED.  372 ILL. 369; 24 N.E.2D 37.  WE GRANTED CERTIORARI TO
RESOLVE THE CONSTITUTIONAL QUESTION.  309 U.S. 652. 

THE SUPREME COURT OF ILLINOIS, UPON AN EXAMINATION OF THE RECORD IN
BURKE V. KLEIMAN, SUPRA, FOUND THAT THAT SUIT, IN THE SUPERIOR COURT OF
COOK COUNTY, WAS BROUGHT BY A LANDOWNER IN THE RESTRICTED AREA TO
ENFORCE THE AGREEMENT, WHICH HAD BEEN SIGNED BY HER PREDECESSOR IN
TITLE, IN BEHALF OF HERSELF AND OTHER PROPERTY OWNERS IN LIKE
SITUATION, AGAINST FOUR NAMED INDIVIDUALS, WHO HAD ACQUIRED OR ASSERTED
AN INTEREST IN A PLOT OF LAND FORMERLY OWNED BY ANOTHER SIGNER OF THE
AGREEMENT; THAT, UPON STIPULATION OF THE PARTIES IN THAT SUIT THAT THE
AGREEMENT HAD BEEN SIGNED BY OWNERS OF 95 PER CENT OF ALL THE FRONTAGE,
THE COURT HAD ADJUDGED THAT THE AGREEMENT WAS IN FORCE, THAT IT WAS A
COVENANT RUNNING WITH THE LAND AND BINDING ALL THE LAND WITHIN THE
DESCRIBED AREA IN THE HANDS OF THE PARTIES TO THE AGREEMENT AND THOSE
CLAIMING UNDER THEM, INCLUDING DEFENDANTS, AND HAD ENTERED ITS DECREE
RESTRAINING THE BREACH OF THE AGREEMENT BY THE DEFENDANTS AND THOSE
CLAIMING UNDER THEM, AND THAT THE APPELLATE COURT HAD AFFIRMED THE
DECREE.  IT FOUND THAT THE STIPULATION WAS UNTRUE BUT HELD, CONTRARY TO
THE TRIAL COURT, THAT IT WAS NOT FRAUDULENT OR COLLUSIVE.  IT ALSO
APPEARS FROM THE RECORD IN BURKE V. KLEIMAN THAT THE CASE WAS TRIED ON
AN AGREED STATEMENT OF FACTS WHICH RAISED ONLY A SINGLE ISSUE, WHETHER
BY REASON OF CHANGES IN THE RESTRICTED AREA, THE AGREEMENT HAD CEASED
TO BE ENFORCIBLE IN EQUITY. 

FROM THIS THE SUPREME COURT OF ILLINOIS CONCLUDED IN THE PRESENT CASE
THAT BURKE V. KLEIMAN WAS A "CLASS" OR "REPRESENTATIVE" SUIT, AND THAT
IN SUCH A SUIT, "WHERE THE REMEDY IS PURSUED BY A PLAINTIFF WHO HAS THE
RIGHT TO REPRESENT THE CLASS TO WHICH HE BELONGS, OTHER MEMBERS OF THE
CLASS ARE BOUND BY THE RESULTS IN THE CASE UNLESS IT IS REVERSED OR SET
ASIDE ON DIRECT PROCEEDINGS"; THAT PETITIONERS IN THE PRESENT SUIT WERE
MEMBERS OF THE CLASS REPRESENTED BY THE PLAINTIFFS IN THE EARLIER SUIT
AND CONSEQUENTLY WERE BOUND BY ITS DECREE, WHICH HAD RENDERED THE ISSUE
OF PERFORMANCE OF THE CONDITION PRECEDENT TO THE RESTRICTIVE AGREEMENT
RES JUDICATA, SO FAR AS PETITIONERS ARE CONCERNED.  THE COURT THOUGHT
THAT THE CIRCUMSTANCE THAT THE STIPULATION IN THE EARLIER SUIT THAT
OWNERS OF 95 PER CENT OF THE FRONTAGE HAD SIGNED THE AGREEMENT WAS
CONTRARY TO THE FACT, AS FOUND IN THE PRESENT SUIT, DID NOT MILITATE
AGAINST THIS CONCLUSION, SINCE THE COURT IN THE EARLIER SUIT HAD
JURISDICTION TO DETERMINE THE FACT AS BETWEEN THE PARTIES BEFORE IT,
AND THAT ITS DETERMINATION, BECAUSE OF THE REPRESENTATIVE CHARACTER OF
THE SUIT, EVEN THOUGH ERRONEOUS, WAS BINDING ON PETITIONERS UNTIL SET
ASIDE BY A DIRECT ATTACK ON THE FIRST JUDGMENT. 

STATE COURTS ARE FREE TO ATTACH SUCH DESCRIPTIVE LABELS TO
LITIGATIONS BEFORE THEM AS THEY MAY CHOOSE AND TO ATTRIBUTE TO THEM
SUCH CONSEQUENCES AS THEY THINK APPROPRIATE UNDER STATE CONSTITUTIONS
AND LAWS, SUBJECT ONLY TO THE REQUIREMENTS OF THE CONSTITUTION OF THE
UNITED STATES.  BUT WHEN THE JUDGMENT OF A STATE COURT, ASCRIBING TO
THE JUDGMENT OF ANOTHER COURT THE BINDING FORCE AND EFFECT OF RES
JUDICATA, IS CHALLENGED FOR WANT OF DUE PROCESS IT BECOMES THE DUTY OF
THIS COURT TO EXAMINE THE COURSE OF PROCEDURE IN BOTH LITIGATIONS TO
ASCERTAIN WHETHER THE LITIGANT WHOSE RIGHTS HAVE THUS BEEN ADJUDICATED
HAS BEEN AFFORDED SUCH NOTICE AND OPPORTUNITY TO BE HEARD AS ARE
REQUISITE TO THE DUE PROCESS WHICH THE CONSTITUTION PRESCRIBES. 
WESTERN LIFE INDEMNITY CO. V. RUPP, 235 U.S. 261, 273. 

IT IS A PRINCIPLE OF GENERAL APPLICATION IN ANGLO-AMERICAN
JURISPRUDENCE THAT ONE IS NOT BOUND BY A JUDGMENT IN PERSONAM IN A
LITIGATION IN WHICH HE IS NOT DESIGNATED AS A PARTY OR TO WHICH HE HAS
NOT BEEN MADE A PARTY BY SERVICE OF PROCESS.  PENNOYER V. NEFF, 95 U.S.
714; 1 FREEMAN ON JUDGMENTS (5TH ED.), SEC. 407.  A JUDGMENT RENDERED
IN SUCH CIRCUMSTANCES IS NOT ENTITLED TO THE FULL FAITH AND CREDIT
WHICH THE CONSTITUTION AND STATUTE OF THE UNITED STATES, R.S. SEC. 905,
28 U.S.C. SEC. 687, PRESCRIBE, PENNOYER V. NEFF, SUPRA; LAFAYETTE INS.
CO. V. FRENCH, 18 HOW.  404; HALL V. LANNING, 91 U.S. 160; BAKER V.
BAKER, ECCLES & CO., 242 U.S. 394; AND JUDICIAL ACTION ENFORCING IT
AGAINST THE PERSON OR PROPERTY OF THE ABSENT PARTY IS NOT THAT DUE
PROCESS WHICH THE FIFTH AND FOURTEENTH AMENDMENTS REQUIRE.  POSTAL
TELEGRAPH CABLE CO. V. NEWPORT, 247 U.S. 464; OLD WAYNE MUTUAL LIFE
ASSN. V. MCDONOUGH, 204 U.S. 8. 

TO THESE GENERAL RULES THERE IS A RECOGNIZED EXCEPTION THAT, TO AN
EXTENT NOT PRECISELY DEFINED BY JUDICIAL OPINION, THE JUDGMENT IN A
"CLASS" OR "REPRESENTATIVE" SUIT, TO WHICH SOME MEMBERS OF THE CLASS
ARE PARTIES, MAY BIND MEMBERS OF THE CLASS OR THOSE REPRESENTED WHO
WERE NOT MADE PARTIES TO IT.  SMITH V. SWORMSTEDT, 16 HOW.  288; ROYAL
ARCANUM V. GREEN, 237 U.S. 531; HARTFORD LIFE INS. CO. V. IBS, 237 U.S.
662; HARTFORD LIFE INS. CO. V. BARBER, 245 U.S. 146; SUPREME TRIBE OF
BEN-HUR V. CAUBLE, 255 U.S. 356; CF. CHRISTOPHER V. BRUSSELBACK, 302
U.S. 500. 

THE CLASS SUIT WAS AN INVENTION OF EQUITY TO ENABLE IT TO PROCEED TO
A DECREE IN SUITS WHERE THE NUMBER OF THOSE INTERESTED IN THE SUBJECT
OF THE LITIGATION IS SO GREAT THAT THEIR JOINDER AS PARTIES IN
CONFORMITY TO THE USUAL RULES OF PROCEDURE IS IMPRACTICABLE.  COURTS
ARE NOT INFREQUENTLY CALLED UPON TO PROCEED WITH CAUSES IN WHICH THE
NUMBER OF THOSE INTERESTED IN THE LITIGATION IS SO GREAT AS TO MAKE
DIFFICULT OR IMPOSSIBLE THE JOINDER OF ALL BECAUSE SOME ARE NOT WITHIN
THE JURISDICTION OR BECAUSE THEIR WHEREABOUTS IS UNKNOWN OR WHERE IF
ALL WERE MADE PARTIES TO THE SUIT ITS CONTINUED ABATEMENT BY THE DEATH
OF SOME WOULD PREVENT OR UNDULY DELAY A DECREE.  IN SUCH CASES WHERE
THE INTERESTS OF THOSE NOT JOINED ARE OF THE SAME CLASS AS THE
INTERESTS OF THOSE WHO ARE, AND WHERE IT IS CONSIDERED THAT THE LATTER
FAIRLY REPRESENT THE FORMER IN THE PROSECUTION OF THE LITIGATION OF THE
ISSUES IN WHICH ALL HAVE A COMMON INTEREST, THE COURT WILL PROCEED TO A
DECREE.  BROWN V. VERMUDEN, CH. CAS. 272; CITY OF LONDON V. RICHMOND, 2
VERN.  421; COCKBURN V. THOMPSON, 16 VES.  JR. 321; WEST V. RANDALL,
FED. CAS. NO. 17,424; 2 MASON 181; BEATTY V. KURTZ, 2 PET. 566; SMITH
V. SWORMSTEDT, SUPRA; SUPREME TRIBE OF BEN-HUR V. CAUBLE, SUPRA; STORY,
EQUITY PLEADING (2D ED.)  SEC.  98. 

IT IS EVIDENT THAT THE CONSIDERATIONS WHICH MAY INDUCE A COURT THUS
TO PROCEED, DESPITE A TECHNICAL DEFECT OF PARTIES, MAY DIFFER FROM
THOSE WHICH MUST BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER THE
ABSENT PARTIES ARE BOUND BY THE DECREE OR, IF IT IS ADJUDGED THAT THEY
ARE, IN ASCERTAINING WHETHER SUCH AN ADJUDICATION SATISFIES THE
REQUIREMENTS OF DUE PROCESS AND OF FULL FAITH AND CREDIT. 
NEVERTHELESS, THERE IS SCOPE WITHIN THE FRAMEWORK OF THE CONSTITUTION
FOR HOLDING IN APPROPRIATE CASES THAT A JUDGMENT RENDERED IN A CLASS
SUIT IS RES JUDICATA AS TO MEMBERS OF THE CLASS WHO ARE NOT FORMAL
PARTIES TO THE SUIT.  HERE, AS ELSEWHERE, THE FOURTEENTH AMENDMENT DOES
NOT COMPEL STATE COURTS OR LEGISLATURES TO ADOPT ANY PARTICULAR RULE
FOR ESTABLISHING THE CONCLUSIVENESS OF JUDGMENTS IN CLASS SUITS; CF.
BROWN V. NEW JERSEY, 175 U.S. 172; BROWN V. MISSISSIPPI, 297 U.S. 278;
UNITED GAS PUBLIC SERVICE CO. V. TEXAS, 303 U.S. 123; AVERY V. ALABAMA,
308 U.S. 444, 446, 447, NOR DOES IT COMPEL THE ADOPTION OF THE
PARTICULAR RULES THOUGHT BY THIS COURT TO BE APPROPRIATE FOR THE
FEDERAL COURTS.  WITH A PROPER REGARD FOR DIVERGENT LOCAL INSTITUTIONS
AND INTERESTS, CF. JACKSON COUNTY V. UNITED STATES, 308 U.S. 343, 351,
THIS COURT IS JUSTIFIED IN SAYING THAT THERE HAS BEEN A FAILURE OF DUE
PROCESS ONLY IN THOSE CASES WHERE IT CANNOT BE SAID THAT THE PROCEDURE
ADOPTED, FAIRLY INSURES THE PROTECTION OF THE INTERESTS OF ABSENT
PARTIES WHO ARE TO BE BOUND BY IT.  CHICAGO, B. & Q.R. CO. V. CHICAGO,
166 U.S. 226, 235. 

IT IS FAMILIAR DOCTRINE OF THE FEDERAL COURTS THAT MEMBERS OF A CLASS
NOT PRESENT AS PARTIES TO THE LITIGATION MAY BE BOUND BY THE JUDGMENT
WHERE THEY ARE IN FACT ADEQUATELY REPRESENTED BY PARTIES WHO ARE
PRESENT, OR WHERE THEY ACTUALLY PARTICIPATE IN THE CONDUCT OF THE
LITIGATION IN WHICH MEMBERS OF THE CLASS ARE PRESENT AS PARTIES, PLUMB
V. GOODNOW'S ADMINISTRATOR, 123 U.S. 560; CONFECTIONERS' MACHINERY CO.
V. RACINE ENGINE & MACH. CO., 163 F. 914; 170 F. 1021; BRYANT ELECTRIC
CO. V. MARSHALL, 169 F. 426, OR WHERE THE INTEREST OF THE MEMBERS OF
THE CLASS, SOME OF WHOM ARE PRESENT AS PARTIES, IS JOINT, OR WHERE FOR
ANY OTHER REASON THE RELATIONSHIP BETWEEN THE PARTIES PRESENT AND THOSE
WHO ARE ABSENT IS SUCH AS LEGALLY TO ENTITLE THE FORMER TO STAND IN
JUDGMENT FOR THE LATTER.  SMITH V. SWORMSTEDT, SUPRA; CF. CHRISTOPHER
V. BRUSSELBACK, SUPRA, 503, 504, AND CASES CITED. 

IN ALL SUCH CASES, SO FAR AS IT CAN BE SAID THAT THE MEMBERS OF THE
CLASS WHO ARE PRESENT ARE, BY GENERALLY RECOGNIZED RULES OF LAW,
ENTITLED TO STAND IN JUDGMENT FOR THOSE WHO ARE NOT, WE MAY ASSUME FOR
PRESENT PURPOSES THAT SUCH PROCEDURE AFFORDS A PROTECTION TO THE
PARTIES WHO ARE REPRESENTED, THOUGH ABSENT, WHICH WOULD SATISFY THE
REQUIREMENTS OF DUE PROCESS AND FULL FAITH AND CREDIT SEE BERNHEIMER V.
CONVERSE, 206 U.S. 516; MARIN V. AUGEDAHL, 247 U.S. 142; CHANDLER V.
PEKETZ, 297 U.S. 609.  NOR DO WE FIND IT NECESSARY FOR THE DECISION OF
THIS CASE TO SAY THAT, WHEN THE ONLY CIRCUMSTANCE DEFINING THE CLASS IS
THAT THE DETERMINATION OF THE RIGHTS OF ITS MEMBERS TURNS UPON A SINGLE
ISSUE OF FACT OR LAW, A STATE COULD NOT CONSTITUTIONALLY ADOPT A
PROCEDURE WHEREBY SOME OF THE MEMBERS OF THE CLASS COULD STAND IN
JUDGMENT FOR ALL, PROVIDED THAT THE PROCEDURE WERE SO DEVISED AND
APPLIED AS TO INSURE THAT THOSE PRESENT ARE OF THE SAME CLASS AS THOSE
ABSENT AND THAT THE LITIGATION IS SO CONDUCTED AS TO INSURE THE FULL
AND FAIR CONSIDERATION OF THE COMMON ISSUE.  COMPARE NEW ENGLAND
DIVISIONS CASE, 261 U.S. 184, 197; TAGGART V. BREMNER, 236 F. 544.  WE
DECIDE ONLY THAT THE PROCEDURE AND THE COURSE OF LITIGATION SUSTAINED
HERE BY THE PLEA OF RES JUDICATA DO NOT SATISFY THESE REQUIREMENTS. 

THE RESTRICTIVE AGREEMENT DID NOT PURPORT TO CREATE A JOINT
OBLIGATION OR LIABILITY.  IF VALID AND EFFECTIVE ITS PROMISES WERE THE
SEVERAL OBLIGATIONS OF THE SIGNERS AND THOSE CLAIMING UNDER THEM.  THE
PROMISES RAN SEVERALLY TO EVERY OTHER SIGNER.  IT IS PLAIN THAT IN SUCH
CIRCUMSTANCES ALL THOSE ALLEGED TO BE BOUND BY THE AGREEMENT WOULD NOT
CONSTITUTE A SINGLE CLASS IN ANY LITIGATION BROUGHT TO ENFORCE IT.
THOSE WHO SOUGHT TO SECURE ITS BENEFITS BY ENFORCING IT COULD NOT BE
SAID TO BE IN THE SAME CLASS WITH OR REPRESENT THOSE WHOSE INTEREST WAS
IN RESISTING PERFORMANCE, FOR THE AGREEMENT BY ITS TERMS IMPOSES
OBLIGATIONS AND CONFERS RIGHTS ON THE OWNER OF EACH PLOT OF LAND WHO
SIGNS IT.  IF THOSE WHO THUS SEEK TO SECURE THE BENEFITS OF THE
AGREEMENT WERE RIGHTLY REGARDED BY THE STATE SUPREME COURT AS
CONSTITUTING A CLASS, IT IS EVIDENT THAT THOSE SIGNERS OR THEIR
SUCCESSORS WHO ARE INTERESTED IN CHALLENGING THE VALIDITY OF THE
AGREEMENT AND RESISTING ITS PERFORMANCE ARE NOT OF THE SAME CLASS IN
THE SENSE THAT THEIR INTERESTS ARE IDENTICAL SO THAT ANY GROUP WHO HAD
ELECTED TO ENFORCE RIGHTS CONFERRED BY THE AGREEMENT COULD BE SAID TO
BE ACTING IN THE INTEREST OF ANY OTHERS WHO WERE FREE TO DENY ITS
OBLIGATION. 

BECAUSE OF THE DUAL AND POTENTIALLY CONFLICTING INTERESTS OF THOSE
WHO ARE PUTATIVE PARTIES TO THE AGREEMENT IN COMPELLING OR RESISTING
ITS PERFORMANCE, IT IS IMPOSSIBLE TO SAY, SOLELY BECAUSE THEY ARE
PARTIES TO IT, THAT ANY TWO OF THEM ARE OF THE SAME CLASS.  NOR WITHOUT
MORE, AND WITH THE DUE REGARD FOR THE PROTECTION OF THE RIGHTS OF
ABSENT PARTIES WHICH DUE PROCESS EXACTS, CAN SOME BE PERMITTED TO STAND
IN JUDGMENT FOR ALL. 

IT IS ONE THING TO SAY THAT SOME MEMBERS OF A CLASS MAY REPRESENT
OTHER MEMBERS IN A LITIGATION WHERE THE SOLE AND COMMON INTEREST OF THE
CLASS IN THE LITIGATION, IS EITHER TO ASSERT A COMMON RIGHT OR TO
CHALLENGE AN ASSERTED OBLIGATION.  SMITH V. SWORMSTEDT, SUPRA; SUPREME
TRIBE OF BEN-HUR V. CAUBLE, SUPRA; GROVES V. FARMERS STATE BANK, 368
ILL. 35; 12 N.E.2D 618.  IT IS QUITE ANOTHER TO HOLD THAT ALL THOSE WHO
ARE FREE ALTERNATIVELY EITHER TO ASSERT RIGHTS OR TO CHALLENGE THEM ARE
OF A SINGLE CLASS, SO THAT ANY GROUP, MERELY BECAUSE IT IS OF THE CLASS
SO CONSTITUTED, MAY BE DEEMED ADEQUATELY TO REPRESENT ANY OTHERS OF THE
CLASS IN LITIGATING THEIR INTERESTS IN EITHER ALTERNATIVE.  SUCH A
SELECTION OF REPRESENTATIVES FOR PURPOSES OF LITIGATION, WHOSE
SUBSTANTIAL INTERESTS ARE NOT NECESSARILY OR EVEN PROBABLY THE SAME AS
THOSE WHOM THEY ARE DEEMED TO REPRESENT, DOES NOT AFFORD THAT
PROTECTION TO ABSENT PARTIES WHICH DUE PROCESS REQUIRES.  THE DOCTRINE
OF REPRESENTATION OF ABSENT PARTIES IN A CLASS SUIT HAS NOT HITHERTO
BEEN THOUGHT TO GO SO FAR.  SEE TERRY V. BANK OF CAPE FEAR, 20 F. 777,
781; WEIDENFELD V. NORTHERN PACIFIC RY. CO., 129 F. 305, 310; MCQUILLEN
V. NATIONAL CASH REGISTER CO., 22 F.SUPP.  867, 873, AFF'D 112 F.2D
877, 882; BRENNER V. TITLE GUARANTEE & TRUST CO., 276 N.Y. 230; 11
N.E.2D 890; CF. WABASH R. CO. V. ADELBERT COLLEGE, 208 U.S. 38; COE V.
ARMOUR FERTILIZER WORKS, 237 U.S. 413.  APART FROM THE OPPORTUNITIES IT
WOULD AFFORD FOR THE FRAUDULENT AND COLLUSIVE SACRIFICE OF THE RIGHTS
OF ABSENT PARTIES, WE THINK THAT THE REPRESENTATION IN THIS CASE NO
MORE SATISFIES THE REQUIREMENTS OF DUE PROCESS THAN A TRIAL BY A
JUDICIAL OFFICER WHO IS IN SUCH SITUATION THAT HE MAY HAVE AN INTEREST
IN THE OUTCOME OF THE LITIGATION IN CONFLICT WITH THAT OF THE
LITIGANTS.  TUMEY V. OHIO, 273 U.S. 510. 

THE PLAINTIFFS IN THE BURKE CASE SOUGHT TO COMPEL PERFORMANCE OF THE
AGREEMENT IN BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED. 
THEY DID NOT DESIGNATE THE DEFENDANTS IN THE SUIT AS A CLASS OR SEEK
ANY INJUNCTION OR OTHER RELIEF AGAINST OTHERS THAN THE NAMED
DEFENDANTS, AND THE DECREE WHICH WAS ENTERED DID NOT PURPORT TO BIND
OTHERS.  IN SEEKING TO ENFORCE THE AGREEMENT THE PLAINTIFFS IN THAT
SUIT WERE NOT REPRESENTING THE PETITIONERS HERE WHOSE SUBSTANTIAL
INTEREST IS IN RESISTING PERFORMANCE.  THE DEFENDANTS IN THE FIRST SUIT
WERE NOT TREATED BY THE PLEADINGS OR DECREE AS REPRESENTING OTHERS OR
AS FORECLOSING BY THEIR DEFENSE THE RIGHTS OF OTHERS; AND, EVEN THOUGH
NOMINAL DEFENDANTS, IT DOES NOT APPEAR THAT THEIR INTEREST IN DEFEATING
THE CONTRACT OUTWEIGHED THEIR INTEREST IN ESTABLISHING ITS VALIDITY. 
FOR A COURT IN THIS SITUATION TO ASCRIBE TO EITHER THE PLAINTIFFS OR
DEFENDANTS THE PERFORMANCE OF SUCH FUNCTIONS ON BEHALF OF PETITIONERS
HERE, IS TO ATTRIBUTE TO THEM A POWER THAT IT CANNOT BE SAID THAT THEY
HAD ASSUMED TO EXERCISE, AND A RESPONSIBILITY WHICH, IN VIEW OF THEIR
DUAL INTERESTS IT DOES NOT APPEAR THAT THEY COULD RIGHTLY DISCHARGE. 
REVERSED. 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE ROBERTS AND MR. JUSTICE REED
CONCUR IN THE RESULT. 
..END :













HELVERING V. NORTHWEST STEEL MILLS, 311 U.S. 46 


NO. 121.  ARGUED OCTOBER 23, 1940.  - DECIDED NOVEMBER 12, 1940.  - 110
F.2D 286, REVERSED. 


1.  PROVISIONS OF TAX STATUTES GRANTING EXEMPTIONS ARE TO BE STRICTLY
CONSTRUED.  P. 49. 

2.  SECTION 26(C)(1) OF THE REVENUE ACT OF 1936 ALLOWS, IN THE
COMPUTATION OF THE TAX IMPOSED BY SEC. 14 ON UNDISTRIBUTED PROFITS, A
CREDIT FOR SUCH UNDISTRIBUTED EARNINGS AS THE CORPORATION COULD NOT
DISTRIBUTE WITHOUT VIOLATING "A PROVISION OF A WRITTEN CONTRACT
EXECUTED BY THE CORPORATION  ...  , WHICH PROVISION EXPRESSLY DEALS
WITH THE PAYMENT OF DIVIDENDS."  HELD THAT, WHERE THE RESTRICTION ON
DISTRIBUTION BY THE CORPORATION WAS THE RESULT OF A PROHIBITION BY
STATE LAW, THE CREDIT WAS NOT ALLOWABLE.  P. 49. 

3.  THE CORPORATION'S CHARTER, TAKEN TOGETHER WITH THE STATE LAW,
DOES NOT IN SUCH CASE CONSTITUTE, WITHIN THE MEANING OF SEC. 26(C)(1),
"A WRITTEN CONTRACT EXECUTED BY THE CORPORATION" WHICH "EXPRESSLY DEALS
WITH THE PAYMENT OF DIVIDENDS."  P. 51. 

4.  THE CONCLUSION THAT SEC. 26(C)(1) DOES NOT AUTHORIZE A CREDIT
WHEN THE DISTRIBUTION OF PROFITS IS PROHIBITED BY STATE LAW IS FURTHER
SUPPORTED BY CONSIDERATION OF SEC. 26(C)(2) OF THE ACT AND BY THE
LEGISLATIVE HISTORY OF THE SECTION.  P. 49. 

5.  AS HERE CONSTRUED AND APPLIED, THE TAXING ACT DOES NOT VIOLATE
THE FIFTH AMENDMENT, (A) BY DISCRIMINATING, IN THE ALLOWANCE OF A
CREDIT, BETWEEN CORPORATIONS WHICH ARE BARRED FROM DISTRIBUTING
DIVIDENDS BY "WRITTEN" CONTRACTS AND THOSE WHICH ARE RESTRAINED ORAL
CONTRACTS OR BY STATE LAW; OR (B) BY IMPOSING A TAX ON UNDISTRIBUTED
"INCOME" OF A CORPORATION WHICH HAS AN EXISTING DEFICIT.  P. 52. 

6.  NOR DOES IT VIOLATE THE TENTH AMENDMENT, SINCE THE RESERVED
POWERS OF THE STATES OVER CORPORATIONS - TO PRESCRIBE THEIR POWERS AND
CONDITION THE EXERCISE THEREOF - ARE NOT INFRINGED.  P. 53. 

7.  THE TAX IS AUTHORIZED BY THE SIXTEENTH AMENDMENT.  ALTHOUGH
IMPOSED ON THE INCOME ONLY IF NOT DISTRIBUTED, THE TAX NEVERTHELESS IS
ON INCOME AND NOT ON CAPITAL, IT BEING IMPOSED ON PROFITS EARNED DURING
A DEFINITE PERIOD - THE TAX YEAR.  P. 53. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. NORTHWEST STEEL
ROLLING MILLS, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 629, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS WHICH SUSTAINED THE COMMISSIONER'S DETERMINATION
OF A TAX DEFICIENCY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT CORPORATION, BECAUSE OF A PREVIOUSLY EXISTING DEFICIT, WAS
PROHIBITED BY STATE LAW FN1  FROM DISTRIBUTING AS DIVIDENDS ITS PROFITS
EARNED IN 1936.  NOTWITHSTANDING THIS STATE PROHIBITION, THE
COMMISSIONER HELD RESPONDENT LIABLE UNDER THE 1936 REVENUE ACT  FN2
FOR SURTAX ON UNDISTRIBUTED PROFITS.  THE BOARD OF TAX APPEALS
SUSTAINED THE COMMISSIONER; FN3  THE CIRCUIT COURT OF APPEALS
REVERSED.  FN4  ON A SIMILAR STATE OF FACTS THE COURT OF APPEALS FOR
THE EIGHTH CIRCUIT HELD UNDISTRIBUTED PROFITS TAXABLE.  FN5  WE GRANTED
CERTIORARI IN BOTH CASES TO RESOLVE THIS CONFLICT.  FN6 

PROFITS EARNED BUT NOT DISTRIBUTED AS DIVIDENDS DURING THE TAX YEAR. 
PROFITS WHICH THE CORPORATION COULD NOT DISTRIBUTE AS DIVIDENDS
"WITHOUT VIOLATING A PROVISION OF A WRITTEN CONTRACT EXECUTED BY THE
CORPORATION PRIOR TO MAY 1, 1936, WHICH PROVISION EXPRESSLY DEALS WITH
THE PAYMENT OF DIVIDENDS." 

THE ONLY "WRITTEN CONTRACT EXECUTED BY THE CORPORATION" UPON WHICH
RESPONDENT RELIES FOR ITS CLAIMED EXEMPTION IS ITS CORPORATE CHARTER,
GRANTED BY THE STATE OF WASHINGTON.  UPON THE PREMISES THAT
RESPONDENT'S WASHINGTON CHARTER WAS A WRITTEN CONTRACT, AND THAT THE
WASHINGTON LAWS PROHIBITING DIVIDEND PAYMENTS WERE BY OPERATION OF LAW
A PART OF THAT CONTRACT, THE COURT BELOW CONCLUDED THAT THE TAXPAYER
HAD SATISFIED THE REQUIREMENTS OF SEC. 26(C)(1). 

WE MUST THEREFORE DECIDE WHETHER SEC. 26(C)(1) AUTHORIZED A CREDIT OR
DEDUCTION TO CORPORATIONS PROHIBITED BY STATE LAW FROM DISTRIBUTING
DIVIDENDS.  AND RESPONDENT STRONGLY URGES THAT THE ACT, IF CONSTRUED TO
DENY SUCH CREDIT, IS UNCONSTITUTIONAL. 

FIRST.  IT IS MATERIAL THAT WE ARE DEALING HERE WITH A GENERALLY
IMPOSED SURTAX UPON THE UNDISTRIBUTED NET INCOME OF CORPORATIONS, AND
THAT RESPONDENT'S CLAIM IS FOR A CREDIT IN THE NATURE OF A SPECIALLY
PERMITTED DEDUCTION.  IT HAS BEEN SAID MANY TIMES THAT PROVISIONS
GRANTING SPECIAL TAX EXEMPTIONS ARE TO BE STRICTLY CONSTRUED.  FN7 

MEASURED BY THIS SOUND STANDARD IT IS PROBABLY NOT NECESSARY TO GO
BEYOND THE PLAIN WORDS OF SEC. 26(C)(1) IN SEARCH OF THE LEGISLATIVE
MEANING.  CERTAINLY, AT FIRST BLUSH, FEW WOULD SUPPOSE THAT WHEN
CONGRESS GRANTED A SPECIAL EXEMPTION TO CORPORATIONS WHOSE DIVIDEND
PAYMENTS WERE PROHIBITED BY EXECUTED WRITTEN CONTRACTS, IT THEREBY
INTENDED TO GRANT AN EXEMPTION TO CORPORATIONS WHOSE DIVIDEND PAYMENTS
WERE PROHIBITED BY STATE LAW.  THE NATURAL IMPRESSION CONVEYED BY THE
WORDS "WRITTEN CONTRACT EXECUTED BY THE CORPORATION" IS THAT AN
EXPLICIT UNDERSTANDING HAS BEEN REACHED, REDUCED TO WRITING, SIGNED AND
DELIVERED.  TRUE, OBLIGATIONS NOT SET OUT AT LENGTH IN A WRITTEN
CONTRACT MAY BE INCORPORATED BY SPECIFIC REFERENCE, OR EVEN BY
IMPLICATION.  BUT CONGRESS INDICATED THAT ANY EXEMPTED PROHIBITION
AGAINST DIVIDEND PAYMENTS MUST BE EXPRESSLY WRITTEN IN THE EXECUTED
CONTRACT.  IT DID THIS BY ADDING A PRECAUTIONARY CLAUSE THAT THE
GRANTED CREDIT CAN ONLY RESULT FROM A PROVISION WHICH "EXPRESSLY DEALS
WITH THE PAYMENT OF DIVIDENDS." 

THAT THE LANGUAGE USED IN SEC. 26(C)(1) DOES NOT AUTHORIZE A CREDIT
FOR STATUTORILY PROHIBITED DIVIDENDS IS FURTHER SUPPORTED BY A
CONSIDERATION OF SEC. 26(C)(2).  BY THIS SECTION, A CREDIT IS ALLOWED
TO CORPORATIONS CONTRACTUALLY OBLIGATED TO SET EARNINGS ASIDE FOR THE
PAYMENT OF DEBTS.  FN8  THAT THIS SECTION REFERRED TO ROUTINE CONTRACTS
DEALING WITH ORDINARY DEBTS AND NOT TO STATUTORY OBLIGATIONS IS OBVIOUS
- YET THE WORDS USED TO INDICATE THAT THE SECTION HAD REFERENCE ONLY TO
A "WRITTEN CONTRACT EXECUTED BY THE CORPORATION" ARE IDENTICAL WITH
THOSE USED IN SEC. 26(C)(1).  THERE IS NO REASON TO BELIEVE THAT
CONGRESS INTENDED THAT A BROADER MEANING BE ATTACHED TO THESE WORDS AS
USED IN SEC. 26(C)(1) THAN ATTACHED TO THEM UNDER THE NECESSARY
LIMITATIONS OF 26(C)(2). 

RESPONDENT URGES THAT THE LEGISLATIVE HISTORY OF SEC. 26(C)(1)
SUPPORTS ITS CONTENTION.  BUT, ON THE CONTRARY, THAT HISTORY POINTS IN
THE OTHER DIRECTION.  THE ORIGINAL HOUSE BILL CONTAINED SEPARATE RELIEF
PROVISIONS (1) FOR DEFICIT CORPORATIONS SUCH AS RESPONDENT; (2) FOR
CORPORATIONS CONTRACTUALLY OBLIGATED TO PAY DEBTS; AND (3) FOR
CORPORATIONS CONTRACTUALLY PROHIBITED FROM PAYING DIVIDENDS.  FN9  THE
SENATE FINANCE COMMITTEE STRUCK OUT ALL THREE OF THESE HOUSE
PROVISIONS, BUT SUBSTITUTED AN EQUIVALENT FOR THE THIRD.  FN10  AN
AMENDMENT FROM THE SENATE FLOOR RESTORED AN EQUIVALENT OF THE SECOND. 
FN11  BUT THE BILL AS FINALLY PASSED CONTAINED NO EXPRESS RELIEF
PROVISION RELATING TO DEFICIT CORPORATIONS. 

IT IS TRUE, AS RESPONDENT CONTENDS, THAT A CHARTER HAS BEEN
JUDICIALLY CONSIDERED TO BE A CONTRACT INSOFAR AS IT GRANTS RIGHTS,
PROPERTIES, PRIVILEGES AND FRANCHISES.  FN12  TO THIS EXTENT IT HAS
BEEN SAID THAT AN ACT OF INCORPORATION IS A CONTRACT BETWEEN THE STATE
AND THE STOCKHOLDERS.  FN13  BUT IT DOES NOT FOLLOW THAT CONGRESS
INTENDED TO INCLUDE CORPORATE CHARTERS AND RELATED STATE LAWS IN THE
CAUTIOUSLY LIMITED AREA PERMISSIBLE FOR TAX CREDITS AND DEDUCTIONS
UNDER THIS SECTION.  NOR HAVE THE COURTS CONSIDERED THAT ALL THE
PROVISIONS OF LAWS PROVIDING FOR THE GRANT OF CORPORATE FRANCHISES ARE
NECESSARILY CONTRACTUAL IN THEIR NATURE.  THE SAME LEGISLATIVE ACT IS A
LAW AS WELL AS A GRANT, AND THIS COURT HAS HELD THAT THE SAME
LEGISLATIVE ENACTMENT MAY BE BOTH A CONTRACT - WHICH CANNOT BE IMPAIRED
- AND A LAW, SUBJECT TO REPEAL, MODIFICATION, ALTERATION, OR AMENDMENT
WITHIN THE GENERAL LEGISLATIVE POWERS.  FN14  RESPONDENT'S CHIEF
RELIANCE IS UPON THAT CHARTER PROVISION WHICH REQUIRED THAT IT CONFORM
TO THE EXISTING AND FUTURE LAWS OF WASHINGTON.  BUT THAT PROVISION IS
NOT A GRANT AND IS NOT A CONTRACT.  WITH OR WITHOUT SUCH A CHARTER
PROVISION, IT WAS THE DUTY OF THE CORPORATION TO CONFORM TO VALID
WASHINGTON STATUTES.  THE CORPORATION WAS SUBJECT TO THE LAW OF
WASHINGTON; IT COULD NOT RISE ABOVE IT.  A CORPORATE CHARTER TO OPERATE
A PARTICULAR BUSINESS IN A PARTICULAR MANNER DOES NOT DEPRIVE THE STATE
OF ITS INHERENT POWER OF LEGISLATION TOUCHING CORPORATE ACTIVITIES. 
AND THE GRANT OF A FRANCHISE DOES NOT EXEMPT THE CORPORATION FROM THE
REQUIREMENT THAT IT OBEY STATE LEGISLATION VALIDLY ADOPTED IN THE
INTERESTS OF THE PUBLIC WELFARE.  FN15  IT CANNOT BE SAID, THEREFORE,
THAT THE CHARTER PROVISION THAT THE CORPORATION SHOULD OBEY WASHINGTON
LAW, INCLUDING THE STATUTORY PROHIBITION AGAINST DISTRIBUTING
DIVIDENDS, WAS A PROVISION OF A WRITTEN CONTRACT EXECUTED BY
RESPONDENT.  MORE, THE CONSTITUTION OF THE STATE OF WASHINGTON UNDER
WHICH THE GENERAL CORPORATION LAWS WERE ENACTED PROVIDES THAT "ALL LAWS
RELATING TO CORPORATIONS MAY BE ALTERED, AMENDED, OR REPEALED BY THE
LEGISLATURE AT ANY TIME, AND ALL CORPORATIONS DOING BUSINESS IN THIS
STATE MAY, AS TO SUCH BUSINESS, BE REGULATED, LIMITED, OR RESTRAINED BY
LAW."  FN16  IT IS CLEAR, THEREFORE, THAT WHAT PROHIBITED RESPONDENT
FROM DISTRIBUTING DIVIDENDS WAS NOT THE PROVISION OF AN EXECUTED
WRITTEN CONTRACT EXPRESSLY DEALING WITH THE PAYMENT OF DIVIDENDS.  ON
THE CONTRARY, WHAT PROHIBITED RESPONDENT FROM PAYING DIVIDENDS WAS A
VALID LAW OF THE STATE OF WASHINGTON.  FN17 

SECOND.  RESPONDENT CONTENDS THAT THE TAX STATUTE, AS CONSTRUED,
OFFENDS THE FIFTH, TENTH AND SIXTEENTH AMENDMENTS.  NONE OF THOSE
CONTENTIONS IS VALID.  FN18 

IT IS ARGUED THAT THE ACT OFFENDS THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT BECAUSE IT PERMITS CREDITS OR DEDUCTIONS IN THE CASE OF
CORPORATIONS RESTRAINED FROM A DISTRIBUTION OF DIVIDENDS UNDER A GIVEN
TYPE OF WRITTEN CONTRACT, WHILE NOT PERMITTING ANY CREDIT OR DEDUCTION
TO CORPORATIONS RESTRAINED FROM DISTRIBUTION BY ORAL CONTRACTS OR BY
THE LAWS OF A STATE.  THIS CONTENTION IS WITHOUT MERIT.  IT IS NOT
NECESSARY TO POINT OUT THE MANY OBVIOUS REASONS THAT MIGHT UNDERLIE THE
DISTINCTIONS HERE DRAWN IN GRANTING SPECIAL DEDUCTIONS FROM A GENERALLY
IMPOSED TAX. 

RESPONDENT ALSO URGES THAT THE TAX AS APPLIED TO IT AMOUNTS TO A
CONFISCATION OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW BECAUSE THE TAX
IS IMPOSED, NOT ON INCOME, BUT ONLY ON UNDISTRIBUTED INCOME, AND THAT
THERE CAN BE NO UNDISTRIBUTED INCOME SO LONG AS THE CORPORATION HAS AN
EXISTING DEFICIT.  BUT THE SURTAX HERE IS IMPOSED UPON THE
UNDISTRIBUTED NET INCOME OF THE CORPORATION "FOR EACH TAXABLE YEAR." 
IT IS TRUE THAT THE SURTAX IS IMPOSED UPON THE ANNUAL INCOME ONLY IF IT
IS NOT DISTRIBUTED, BUT THIS DOES NOT SERVE TO MAKE IT ANYTHING OTHER
THAN A TRUE TAX ON INCOME WITHIN THE MEANING OF THE SIXTEENTH
AMENDMENT.  NOR IS IT TRUE, AS RESPONDENT URGES, THAT BECAUSE THERE
MIGHT BE AN IMPAIRMENT OF THE CAPITAL STOCK, THE TAX ON THE CURRENT
ANNUAL PROFIT WOULD BE THE EQUIVALENT OF A TAX UPON CAPITAL.  WHETHER
THERE WAS AN IMPAIRMENT OF THE CAPITAL STOCK OR NOT, THE TAX HERE UNDER
CONSIDERATION WAS IMPOSED ON PROFITS EARNED DURING A DEFINITE PERIOD -
A TAX YEAR - AND THEREFORE ON PROFITS CONSTITUTING INCOME WITHIN THE
MEANING OF THE SIXTEENTH AMENDMENT. 

IT IS CONTENDED THAT THE STATUTE AS HERE APPLIED VIOLATES THE TENTH
AMENDMENT BECAUSE IT INTERFERES WITH THE AUTHORITY OF THE STATES TO
PRESCRIBE THE POWERS OF CORPORATIONS AND THE CONDITIONS UNDER WHICH
THEIR POWERS MAY BE EXERCISED.  BUT THE STATUTE IN NO WAY LIMITS THE
POWERS OF THE CORPORATION.  IT IMPOSES A TAX AS AUTHORIZED BY THE
SIXTEENTH AMENDMENT AND DOES NOT INFRINGE UPON THE POWERS RESERVED TO
THE STATE BY THE TENTH AMENDMENT.  FN19  THE COURT BELOW WAS IN ERROR;
ITS JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED WITH DIRECTIONS TO
AFFIRM THE JUDGMENT OF THE BOARD OF TAX APPEALS.  REVERSED. 

FN1  "NO CORPORATION SHALL PAY DIVIDENDS  ...  EXCEPT FROM THE
SURPLUS OF THE AGGREGATE OF ITS ASSETS OVER THE AGGREGATE OF ITS
LIABILITIES.  ..."  WASH. REV. STAT. ANN. (REMINGTON, 1932), TIT. 25,
SEC. 3803-24. 

FN2  49 STAT. 1648, 1655. 

FN3  THE MEMORANDUM OPINION OF THE BOARD IS NOT OFFICIALLY REPORTED;
THE BOARD RELIED ON ITS EARLIER OPINION IN CRANE-JOHNSON CO. V.
COMMISSIONER, 38 B.T.A. 1355. 

FN4  110 F.2D 286. 

FN5  CRANE-JOHNSON CO. V. COMMISSIONER, 105 F.2D 740. 

FN6  309 U.S. 692; POST, P. 629. 

FN7  E.G., DEPUTY V. DU PONT, 308 U.S. 488, 493; WHITE V. UNITED
STATES, 305 U.S. 281, 292; NEW COLONIAL ICE CO. V. HELVERING, 292 U.S.
435, 440. 

FN8  49 STAT. 1664.  THE CREDIT ALLOWED IS "AN AMOUNT EQUAL TO THE
PORTION OF THE EARNINGS AND PROFITS OF THE TAXABLE YEAR WHICH IS
REQUIRED (BY A PROVISION OF A WRITTEN CONTRACT EXECUTED BY THE
CORPORATION PRIOR TO MAY 1, 1936, WHICH PROVISION EXPRESSLY DEALS WITH
THE DISPOSITION OF EARNINGS AND PROFITS OF THE TAXABLE YEAR) TO BE PAID
WITHIN THE TAXABLE YEAR IN DISCHARGE OF A DEBT, OR TO BE IRREVOCABLY
SET ASIDE WITHIN THE TAXABLE YEAR FOR THE DISCHARGE OF A DEBT; TO THE
EXTENT THAT SUCH AMOUNT HAS BEEN SO PAID OR SET ASIDE." 

FN9  H.R. 12395, 74TH CONG., 2D SESS., SECS. 14, 15, AND 16; SEE H.
REP. NO. 2475, 74TH CONG., 2D SESS., PP. 8-9. 

FN10  SEE S. REP. NO. 2156, 74TH CONG., 2D SESS., PP. 12-13, 15-16. 

FN11  80 CONG. REC. 9071, 74TH CONG., 2D SESS. 

FN12  TRUSTEES OF DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518; HOME
BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 429. 

FN13  THE BINGHAMTON BRIDGE, 3 WALL.  51, 73. 

FN14  OREGON & CALIFORNIA RAILROAD CO. V. UNITED STATES, 238 U.S.
393, 427. 

FN15  HAMMOND PACKING CO. V. ARKANSAS, 212 U.S. 322, 345. 

FN16  WASHINGTON CONSTITUTION, ARTICLE 12, SEC. 1. 

FN17  RESPONDENT CONTENDED THAT THE STOCK CERTIFICATES SATISFIED THE
STATUTORY REQUISITES EVEN IF THE CHARTER DID NOT; BUT WHAT WE HAVE HERE
SAID WITH RESPECT TO THE CHARTER APPLIES EQUALLY TO THE CERTIFICATES. 

FN18  CF. HELVERING V. NATIONAL GROCERY CO., 304 U.S. 282. 

FN19  HELVERING V. NATIONAL GROCERY CO., SUPRA, AT 286-287.  AND CF.
FLORIDA V. MELLON, 273 U.S. 12, 17:  "CONGRESS CANNOT ACCOMMODATE ITS
LEGISLATION TO THE CONFLICTING OR DISSIMILAR LAWS OF THE SEVERAL STATES
NOR CONTROL THE DIVERSE CONDITIONS TO BE FOUND IN THE VARIOUS STATES
WHICH NECESSARILY WORK UNLIKE RESULTS FROM THE ENFORCEMENT OF THE SAME
TAX." 
..END :



















CRANE-JOHNSON CO. V. HELVERING, 311 U.S. 54 


NO. 8.  ARGUED OCTOBER 23, 1940.  - DECIDED NOVEMBER 12, 1940.  - 105
F.2D 740, AFFIRMED. 


DECIDED ON THE AUTHORITY OF HELVERING V. NORTHWEST STEEL ROLLING
MILLS, ANTE, P. 46. 

CRANE-JOHNSON COMPANY V. HELVERING, COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 309 U.S. 692, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 38 B.T.A. 1355, WHICH SUSTAINED THE
COMMISSIONER'S DETERMINATION OF A TAX DEFICIENCY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

BECAUSE OF A PREVIOUSLY EXISTING DEFICIT, PETITIONER CORPORATION WAS
PROHIBITED BY STATE LAW FN1  FROM DISTRIBUTING AS DIVIDENDS ITS PROFITS
EARNED IN 1936.  NOTWITHSTANDING THIS STATE PROHIBITION, THE
COMMISSIONER HELD RESPONDENT LIABLE UNDER THE 1936 REVENUE ACT  FN2
FOR SURTAX ON UNDISTRIBUTED PROFITS.  THE BOARD OF TAX APPEALS
SUSTAINED THE COMMISSIONER,  FN3  AND THE CIRCUIT COURT OF APPEALS
AFFIRMED.  FN4  ON A SIMILAR STATE OF FACTS THE COURT OF APPEALS FOR
THE NINTH CIRCUIT HELD UNDISTRIBUTED PROFITS EXEMPT FROM SURTAX.  FN5
WE GRANTED CERTIORARI IN BOTH CASES TO RESOLVE THIS CONFLICT.  FN6  THE
LEGAL QUESTIONS HERE PRESENTED ARE IN ALL RESPECTS THE SAME AS THOSE
PRESENTED IN HELVERING V. NORTHWEST STEEL ROLLING MILLS, ANTE, P. 46,
AND ON THE AUTHORITY OF THAT CASE THE DECISION BELOW IS AFFIRMED. 

FN1  "THE DIRECTORS OF CORPORATIONS MUST NOT MAKE DIVIDENDS EXCEPT
FROM THE SURPLUS PROFITS ARISING FROM THE BUSINESS THEREOF  ..."  N.D.
COMP. LAWS (SUPP. 1925) SEC. 4543. 

FN2  49 STAT. 1648, 1655. 

FN3  38 B.T.A. 1355. 

FN4  105 F.2D 740. 

FN5  NORTHWEST STEEL ROLLING MILLS V. COMMISSIONER, 110 F.2D 286. 

FN6  309 U.S. 692; POST, P. 629. 
..END :







RILEY CO. V. COMMISSIONER, 311 U.S. 55 


NO. 50.  ARGUED OCTOBER 25, 1940.  - DECIDED NOVEMBER 12, 1940.  - 110
F.2D 655, AFFIRMED. 


1.  IN THE COMPUTATION OF NET INCOME IN THE CASE OF MINES, SEC.
114(B)(4) OF THE REVENUE ACT OF 1934 PERMITS DEDUCTIONS FOR DEPLETION
ON A PERCENTAGE BASIS PROVIDED THAT THE TAXPAYER IN MAKING HIS "FIRST
RETURN" UNDER THE ACT ELECTS TO AVAIL OF THAT BASIS.  HELD THAT AN
AMENDED RETURN, FILED AFTER THE EXPIRATION OF THE STATUTORY PERIOD FOR
FILING THE ORIGINAL RETURN, INCLUDING SUCH EXTENSION OF THE PERIOD AS
THE COMMISSIONER WAS EMPOWERED TO GRANT, WAS NOT A "FIRST RETURN"
WITHIN THE MEANING OF THE SECTION.  P. 57. 

2.  THAT IN THE CIRCUMSTANCES OF THIS CASE THE CONSTRUCTION THUS
GIVEN THE STATUTE WORKS A HARDSHIP ON THE TAXPAYER, MAY BE THE BASIS OF
AN APPEAL TO CONGRESS FOR RELIEF BUT NOT TO THE COURTS.  P. 59. 

3.  THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS AFFIRMING THE
DECISION OF THE BOARD OF TAX APPEALS IN THIS CASE WAS CORRECT AND MUST
BE SUSTAINED WHETHER OR NOT THE COURT GAVE A WRONG REASON FOR ITS
ACTION.  P. 59. 

J.E. RILEY INVESTMENT CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 310 U.S. 619, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS WHICH, ON PETITION FOR REDETERMINATION OF
INCOME TAX, UPHELD THE COMMISSIONER'S RULING DENYING PERCENTAGE
DEPLETION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON CERTIORARI TO RESOLVE THE CONFLICT OF THE
DECISION BELOW (110 F.2D 655) WITH C.H. MEAD COAL CO. V. COMMISSIONER,
106 F.2D 388. 

PETITIONER IS ENGAGED IN THE BUSINESS OF MINING GOLD AT FLAT,
ALASKA.  THE WINTER MAIL SERVICE TO AND FROM THAT REMOTE PLACE WAS SO
UNCERTAIN AND SLOW THAT, IN ORDER TO AVOID DELINQUENCY IN INCOME TAX
RETURNS, PETITIONER'S OFFICERS WERE ACCUSTOMED TO USE THE FORMS FOR AN
EARLIER YEAR.  CONSEQUENTLY PETITIONER'S ORIGINAL RETURN FOR THE
CALENDAR YEAR 1934 WAS FILED ON A 1933 FORM WHICH HAD BEEN MAILED TO
PETITIONER BY THE COLLECTOR AT TACOMA, WASHINGTON.  THIS RETURN WAS
EXECUTED ON JANUARY 2, 1935, AND REACHED TACOMA ON JANUARY 29, 1935. 
WHEN IT WAS EXECUTED PETITIONER DID NOT KNOW OF THE PROVISION  FN1  IN
THE REVENUE ACT OF 1934(48 STAT. 680) ALLOWING PERCENTAGE DEPLETION. 
BUT PETITIONER DID KNOW THAT UNLESS THE LAW HAD BEEN CHANGED IT WAS NOT
ENTITLED TO DEPLETION, AS IT HAD NO BASIS FOR COST DEPLETION.  THE
COLLECTOR IN SENDING THE 1933 FORMS HAD NOT ADVISED PETITIONER WITH
RESPECT TO PERCENTAGE DEPLETION.  AND IT WAS FOUND THAT IF PETITIONER
HAD KNOWN OF THE STATUTORY PROVISION FOR PERCENTAGE DEPLETION, IT WOULD
HAVE ELECTED TO TAKE ADVANTAGE OF IT. PETITIONER FIRST ACTUALLY LEARNED
OF THE PROVISION IN AUGUST, 1935.  ON MARCH 3, 1936, PETITIONER FILED
AN AMENDED RETURN FOR 1934 UPON WHICH A DEDUCTION OF PERCENTAGE
DEPLETION WAS TAKEN; AND IT ASKED FOR A REFUND.  THE BOARD OF TAX
APPEALS UPHELD THE COMMISSIONER'S RULING DENYING PERCENTAGE DEPLETION
AND THE CIRCUIT COURT OF APPEALS AFFIRMED. 

SEC. 114(B)(4) OF THE 1934 ACT REQUIRED THE TAXPAYER TO ELECT IN HIS
"FIRST RETURN" WHETHER THE DEPLETION ALLOWANCE WAS TO BE COMPUTED WITH
OR WITHOUT REGARD TO PERCENTAGE DEPLETION.  THE METHOD SO ELECTED IS
APPLICABLE NOT ONLY TO THE YEAR IN QUESTION BUT TO ALL SUBSEQUENT
TAXABLE YEARS. 

WE THINK THAT PETITIONER'S AMENDED RETURN, FILED ON MARCH 3, 1936,
WAS NOT A "FIRST RETURN" WITHIN THE MEANING OF SEC. 114(B)(4).  BY SEC.
53(A)(1) OF THE 1934 ACT, THE RETURN WAS DUE ON OR BEFORE MARCH 15,
1935.  BY SEC. 53(A)(2) THE COMMISSIONER WAS EMPOWERED TO GRANT A
REASONABLE EXTENSION FOR FILING RETURNS  FN2  BUT, SO FAR AS APPLICABLE
HERE, NOT EXCEEDING SIX MONTHS.  HAGGAR CO. V. HELVERING, 308 U.S. 389,
WOULD COMPEL THE CONCLUSION THAT HAD THE AMENDED RETURN BEEN FILED
WITHIN THE PERIOD ALLOWED FOR FILING THE ORIGINAL RETURN, IT WOULD HAVE
BEEN A "FIRST RETURN" WITHIN THE MEANING OF SEC. 114(B)(4).  BUT WE CAN
FIND NO STATUTORY SUPPORT FOR THE VIEW THAT AN AMENDMENT MAKING THE
ELECTION PROVIDED FOR IN THAT SECTION MAY BE FILED AS OF RIGHT AFTER
THE EXPIRATION OF THE STATUTORY PERIOD FOR FILING THE ORIGINAL RETURN. 

WE ARE NOT DEALING WITH AN AMENDMENT DESIGNED MERELY TO CORRECT
ERRORS AND MISCALCULATIONS IN THE ORIGINAL RETURN.  ADMITTEDLY THE
TREASURY HAS BEEN LIBERAL IN ACCEPTING SUCH AMENDED RETURNS EVEN THOUGH
FILED AFTER THE PERIOD FOR FILING ORIGINAL RETURNS.  FN3  THIS,
HOWEVER, IS NOT A CASE WHERE A TAXPAYER IS MERELY DEMANDING A CORRECT
COMPUTATION OF HIS TAX FOR A PRIOR YEAR BASED ON FACTS AS THEY
EXISTED.  PETITIONER IS SEEKING BY THIS AMENDMENT NOT ONLY TO CHANGE
THE BASIS UPON WHICH ITS TAXABLE INCOME WAS COMPUTED FOR 1934 BUT TO
ADOPT A NEW METHOD OF COMPUTATION FOR ALL SUBSEQUENT YEARS.  THAT
OPPORTUNITY WAS AFFORDED AS A MATTER OF LEGISLATIVE GRACE; THE ELECTION
HAD TO BE MADE IN THE MANNER AND IN THE TIME PRESCRIBED BY CONGRESS. 
THE OFFER WAS LIBERAL.  BUT THE METHOD OF ITS ACCEPTANCE WAS
RESTRICTED.  THE OFFER PERMITTED AN ELECTION ONLY IN AN ORIGINAL RETURN
OR IN A TIMELY AMENDMENT.  AN AMENDMENT FOR THE PURPOSES OF SEC.
114(B)(4) WOULD BE TIMELY ONLY IF FILED WITHIN THE PERIOD PROVIDED BY
THE STATUTE FOR FILING THE ORIGINAL RETURN.  NO OTHER TIME LIMITATION
WOULD HAVE STATUTORY SANCTION.  TO EXTEND THE TIME BEYOND THE LIMITS
PRESCRIBED IN THE ACT IS A LEGISLATIVE, NOT A JUDICIAL, FUNCTION. 

STRONG PRACTICAL CONSIDERATIONS SUPPORT THIS POSITION. 

IF PETITIONER'S VIEW WERE ADOPTED, TAXPAYERS WITH THE BENEFIT OF
HINDSIGHT COULD SHIFT FROM ONE BASIS OF DEPLETION TO ANOTHER IN LIGHT
OF DEVELOPMENTS SUBSEQUENT TO THEIR ORIGINAL CHOICE.  IT SEEMS CLEAR
THAT CONGRESS PROVIDED THAT THE ELECTION MUST BE MADE ONCE AND FOR ALL
IN THE FIRST RETURN IN ORDER TO AVOID ANY SUCH SHIFTS.  AND TO REQUIRE
THE ADMINISTRATIVE BRANCH TO EXTEND THE TIME FOR FILING ON A SHOWING OF
CAUSE FOR DELAY WOULD BE TO VEST IN IT DISCRETION WHICH THE CONGRESS
DID NOT SEE FIT TO DELEGATE. 

PETITIONER URGES THAT THIS RESULT WILL PRODUCE A HARDSHIP HERE.  IT
STRESSES THE FACT THAT IT HAD NO ACTUAL KNOWLEDGE OF THE NEW
OPPORTUNITY AFFORDED IT BY SEC. 114(B)(4) OF THE 1934 ACT AND THAT
EQUITABLE CONSIDERATIONS SHOULD THEREFORE GOVERN.  THAT MAY BE THE
BASIS FOR AN APPEAL TO CONGRESS IN AMELIORATION OF THE STRICTNESS OF
THAT SECTION.  BUT IT IS NO GROUND FOR RELIEF BY THE COURTS FROM THE
RIGORS OF THE STATUTORY CHOICE WHICH CONGRESS HAS PROVIDED. 

FINALLY, PETITIONER ASSERTS THAT WE CANNOT CONSIDER THE QUESTION OF
THE TIMELINESS OF THE AMENDED RETURN SINCE BEFORE THE BOARD OF TAX
APPEALS AND THE CIRCUIT COURT OF APPEALS RESPONDENT URGED ONLY THAT
PETITIONER'S CLAIM WAS BASED UPON AN AMENDED, RATHER THAN AN ORIGINAL,
RETURN.  BUT EVEN ON THE ASSUMPTION THAT THAT ISSUE DID NOT EMBRACE THE
QUESTION OF TIMELINESS, THE CIRCUIT COURT OF APPEALS WAS JUSTIFIED IN
AFFIRMING THE DECISION OF THE BOARD OF TAX APPEALS.  WHERE THE DECISION
BELOW IS CORRECT IT MUST BE AFFIRMED BY THE APPELLATE COURT THOUGH THE
LOWER TRIBUNAL GAVE A WRONG REASON FOR ITS ACTION.  HELVERING V.
GOWRAN, 302 U.S. 238, 245-246.  AFFIRMED. 

FN1  SECTION 114(B)(4) PROVIDED: 

"THE ALLOWANCE FOR DEPLETION UNDER SECTION 23(M) SHALL BE, IN THE
CASE OF COAL MINES, 5 PER CENTUM, IN THE CASE OF METAL MINES, 15 PER
CENTUM, AND, IN THE CASE OF SULPHUR MINES OR DEPOSITS, 23 PER CENTUM,
OF THE GROSS INCOME FROM THE PROPERTY DURING THE TAXABLE YEAR,
EXCLUDING FROM SUCH GROSS INCOME AN AMOUNT EQUAL TO ANY RENTS OR
ROYALTIES PAID OR INCURRED BY THE TAXPAYER IN RESPECT OF THE PROPERTY. 
SUCH ALLOWANCE SHALL NOT EXCEED 50 PER CENTUM OF THE NET INCOME OF THE
TAXPAYER (COMPUTED WITHOUT ALLOWANCE FOR DEPLETION) FROM THE PROPERTY. 
A TAXPAYER MAKING HIS FIRST RETURN UNDER THIS TITLE IN RESPECT OF A
PROPERTY SHALL STATE WHETHER HE ELECTS TO HAVE THE DEPLETION ALLOWANCE
FOR SUCH PROPERTY FOR THE TAXABLE YEAR FOR WHICH THE RETURN IS MADE
COMPUTED WITH OR WITHOUT REGARD TO PERCENTAGE DEPLETION, AND THE
DEPLETION ALLOWANCE IN RESPECT OF SUCH PROPERTY FOR SUCH YEAR SHALL BE
COMPUTED ACCORDING TO THE ELECTION MADE.  IF THE TAXPAYER FAILS TO MAKE
SUCH STATEMENT IN THE RETURN, THE DEPLETION ALLOWANCE FOR SUCH PROPERTY
FOR SUCH YEAR SHALL BE COMPUTED WITHOUT REFERENCE TO PERCENTAGE
DEPLETION.  THE METHOD, DETERMINED AS ABOVE, OF COMPUTING THE DEPLETION
ALLOWANCE SHALL BE APPLIED IN THE CASE OF THE PROPERTY FOR ALL TAXABLE
YEARS IN WHICH IT IS IN THE HANDS OF SUCH TAXPAYER, OR OF ANY OTHER
PERSON IF THE BASIS OF THE PROPERTY (FOR DETERMINING GAIN) IN HIS HANDS
IS, UNDER SECTION 113, DETERMINED BY REFERENCE TO THE BASIS IN THE
HANDS OF SUCH TAXPAYER, EITHER DIRECTLY OR THROUGH ONE OR MORE
SUBSTITUTED BASES, AS DEFINED IN THAT SECTION." 

FN2  SEE TREASURY REGULATIONS NO. 86, ARTS. 53-1 - 53-4 INC. 

FN3  SEE, FOR EXAMPLE, TREASURY REGULATIONS NO. 86, ART. 43-2,
GOVERNING THE FILING OF AMENDED RETURNS FOR THE PURPOSE OF DEDUCTING
LOSSES WHICH WERE SUSTAINED DURING A PRIOR TAXABLE YEAR.  CF. UNION
METAL MFG. CO., 1 B.T.A. 395. 
..END :























UNITED STATES V. STEWART, 311 U.S. 60 


NO. 13.  ARGUED OCTOBER 17, 1940.  - DECIDED NOVEMBER 12, 1940.  - 106
F.2D 405, REVERSED. 


1.  THE EXEMPTION FROM TAXATION GRANTED BY SEC. 26 OF THE FARM LOAN
ACT OF 1916 TO FARM LOAN BONDS AND THE "INCOME DERIVED THEREFROM," DOES
NOT APPLY TO INCOME DERIVED FROM DEALINGS OR TRANSACTIONS IN SUCH
BONDS, AND SUCH INCOME IS TAXABLE UNDER SEC. 22(A) OF THE REVENUE ACT
OF 1928.  APPLYING WILLCUTS V. BUNN, 282 U.S. 216.  PP. 61, 63. 

2.  ACTS OF CONGRESS WHICH ARE IN PARI MATERIA ARE TO BE TAKEN
TOGETHER, AS IF THEY WERE ONE LAW.  P. 64. 

3.  THE LATER OF ACTS WHICH ARE IN PARI MATERIA MAY BE REGARDED AS A
LEGISLATIVE INTERPRETATION OF THE EARLIER, AND IS ENTITLED TO GREAT
WEIGHT IN RESOLVING DOUBTS AND AMBIGUITIES.  P. 64. 

4.  THE FARM LOAN ACT OF 1916 AND THE REVENUE ACT OF 1916(ENACTED
SHORTLY AFTERWARD AT THE SAME SESSION OF CONGRESS) ARE IN PARI
MATERIA.  THAT IN THE CASE OF FARM LOAN BONDS THE LATTER ACT, LIKE THE
REVENUE ACT OF 1928, EXPRESSLY EXEMPTS INCOME FROM "INTEREST" ALONE IS
PERSUASIVE THAT THE FORMER DOES NOT EXEMPT CAPITAL GAINS.  P. 64. 

5.  THE CONCLUSION THAT SEC. 26 OF THE FARM LOAN ACT DOES NOT EXEMPT
INCOME DERIVED FROM DEALINGS OR TRANSACTIONS IN FARM LOAN BONDS IS NOT
INCONSISTENT WITH ITS LEGISLATIVE HISTORY OR ADMINISTRATIVE
INTERPRETATION.  P. 65. 

6.  THE PROVISION OF SEC. 817 OF THE REVENUE ACT OF 1938, THAT "ALL
INCOME, EXCEPT INTEREST, DERIVED" FROM FARM LOAN BONDS SHALL BE
INCLUDED IN GROSS INCOME, CAN NOT BE REGARDED AS HAVING BEEN INTENDED
TO CHANGE THE PREVIOUSLY EXISTING LAW, SO FAR AS THE QUESTION INVOLVED
IN THIS CASE IS CONCERNED.  P. 66. 

7.  AN ANALYSIS OF NUMEROUS OTHER EXEMPTION STATUTES IS OF LITTLE
WEIGHT UNDER THE CIRCUMSTANCES IN DETERMINING THE MEANING OF "INCOME
DERIVED THEREFROM" IN SEC. 26.  P. 69. 

8.  THE FARM LOAN BOARD WAS WITHOUT AUTHORITY TO MAKE REPRESENTATIONS
THAT CAPITAL GAINS FROM DEALINGS IN FARM LOAN BONDS WERE NOT TAXABLE,
AND STATEMENTS BY THE BOARD, WHICH A PURCHASER SO INTERPRETED AND ON
WHICH HE RELIED, CAN NOT BE ACCORDED THE WEIGHT OF UNIFORM AND LONG
ESTABLISHED ADMINISTRATIVE TREATMENT.  P. 70. 

9.  AN OFFICER OR AGENCY OF THE UNITED STATES TO WHOM NO
ADMINISTRATIVE AUTHORITY HAS BEEN DELEGATED CAN NOT, EVEN BY AN
AFFIRMATIVE UNDERTAKING, WAIVE OR SURRENDER A PUBLIC RIGHT AND THEREBY
ESTOP THE UNITED STATES.  P. 70. 

10.  EXEMPTIONS FROM TAXATION MAY NOT REST UPON MERE IMPLICATION; AND
STATUTORY PROVISIONS GRANTING EXEMPTIONS ARE TO BE STRICTLY CONSTRUED. 
P. 71. 

UNITED STATES V. STEWART. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 309 U.S. 647, TO REVIEW THE REVERSAL OF A JUDGMENT
AGAINST THE TAXPAYER, 24 F.SUPP.  145, IN A SUIT TO RECOVER A REFUND OF
INCOME TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON CERTIORARI TO RESOLVE A CONFLICT OF THE DECISION
BELOW (106 F.2D 405) WITH STERN BROTHERS & CO. V. COMMISSIONER, 108
F.2D 309. 

DURING THE YEAR 1930 RESPONDENT PURCHASED FARM LOAN BONDS ISSUED BY
JOINT-STOCK LAND BANKS UNDER THE FEDERAL FARM LOAN ACT OF 1916(39 STAT.
360).  THE PURCHASES WERE MADE FOR THE PROSPECTIVE INCREMENT TO THE
BONDS AND NOT FOR THEIR INTEREST.  AT THE TIME THE PURCHASES WERE MADE
THE BANKS WERE IN RECEIVERSHIP.  THE BONDS WERE ACQUIRED AT PRICES
SUBSTANTIALLY BELOW PAR. IN MAKING THESE PURCHASES RESPONDENT RELIED
UPON STATEMENTS CONTAINED IN CIRCULARS AND BULLETINS ISSUED BY THE FARM
LOAN BOARD, REASONABLY BELIEVING THAT HE WAS PURCHASING SECURITIES THE
PROFIT UPON WHICH IN CASE OF SALE WOULD BE EXEMPT INCOME.  A PART OF
THE BONDS SO PURCHASED, WITH THEIR APPURTENANT COUPONS, WAS SOLD IN
1931; AND A PART WAS SURRENDERED IN THAT YEAR TO THE RECEIVER OF THE
ISSUING BANK IN EXCHANGE FOR CASH PAID TO RESPONDENT "UNDER AND
PURSUANT TO THE COVENANTS CONTAINED" IN THE BONDS.  EACH OF THESE
TRANSACTIONS RESULTED IN A PROFIT TO RESPONDENT.  FN1  THE COMMISSIONER
HELD THAT THOSE GAINS WERE TAXABLE INCOME.  CONSEQUENTLY, RESPONDENT
INCLUDED THEM IN HIS INCOME TAX RETURN FOR THE YEAR 1931 AND CLAIMED A
REFUND.  ON DISALLOWANCE OF THAT CLAIM, THIS SUIT FOR REFUND WAS
INSTITUTED.  THE DISTRICT COURT DETERMINED THAT THE GAINS SO REALIZED
WERE INCOME AND TAXABLE.  24 F.SUPP.  145.  THE CIRCUIT COURT OF
APPEALS REVERSED. 

SEC. 22(A) OF THE REVENUE ACT OF 1928(45 STAT. 791) INCLUDES IN GROSS
INCOME "GAINS, PROFITS, AND INCOME DERIVED FROM  ...  SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL."  SEC. 22(B)(4) EXEMPTS
FROM TAXATION "INTEREST UPON  ...  SECURITIES ISSUED UNDER THE
PROVISIONS OF THE FEDERAL FARM LOAN ACT, OR UNDER THE PROVISIONS OF
SUCH ACT AS AMENDED." 

IF THOSE TWO SECTIONS ARE CONTROLLING, IT IS CLEAR THAT RESPONDENT IS
TAXABLE ON THESE GAINS, FOR THEY FALL SQUARELY WITHIN THE DEFINITION OF
GROSS INCOME CONTAINED IN SEC. 22(A) AND THEY ARE NOT "INTEREST"  FN2
WITHIN THE MEANING OF SEC. 22(B)(4).  BUT RESPONDENT PLACES HIS MAIN
RELIANCE ON SEC. 26 OF THE FEDERAL FARM LOAN ACT WHICH PROVIDES THAT
"FARM LOAN BONDS ISSUED UNDER THE PROVISIONS OF THIS ACT, SHALL BE
DEEMED AND HELD TO BE INSTRUMENTALITIES OF THE GOVERNMENT OF THE UNITED
STATES, AND AS SUCH THEY AND THE INCOME DERIVED THEREFROM SHALL BE
EXEMPT FROM FEDERAL, STATE MUNICIPAL, AND LOCAL TAXATION."  IT IS URGED
THAT THE GAINS HERE INVOLVED WERE "INCOME DERIVED" FROM THE BONDS
WITHIN THE MEANING OF THAT SECTION. 

WE DISAGREE WITH THAT CONCLUSION.  IT IS OUR VIEW THAT UNDER SEC. 26
RESPONDENT IS ENTITLED TO AN EXEMPTION ONLY FOR INTEREST ON THE BONDS. 

TO BE SURE, "INCOME" IS A GENERIC TERM AMPLY BROAD TO INCLUDE CAPITAL
GAINS FOR PURPOSES OF THE INCOME TAX.  MERCHANTS' LOAN & TRUST CO. V.
SMIETANKA, 255 U.S. 509.  IT IS LIKEWISE TRUE THAT CONGRESS WILL BE
PRESUMED TO HAVE USED A WORD IN ITS USUAL AND WELL-SETTLED SENSE.  OLD
COLONY R. CO. V. COMMISSIONER, 284 U.S. 552; DEPUTY V. DU PONT, 308
U.S. 488.  BUT SEC. 26 DOES NOT EXEMPT SIMPLY "INCOME"; IT EXEMPTS THE
BONDS AND THE "INCOME DERIVED THEREFROM."  ANALYTICALLY, INCOME DERIVED
FROM MERE OWNERSHIP OF THE BONDS IS CLEARLY DIFFERENT FROM INCOME
DERIVED FROM DEALINGS OR TRANSACTIONS IN THE BONDS.  AS STATED IN
WILLCUTS V. BUNN, 282 U.S. 216, 227-228: 

"THE TAX UPON INTEREST IS LEVIED UPON THE RETURN WHICH COMES TO THE
OWNER OF THE SECURITY ACCORDING TO THE PROVISIONS OF THE OBLIGATION AND
WITHOUT ANY FURTHER TRANSACTION ON HIS PART.  THE TAX FALLS UPON THE
OWNER BY VIRTUE OF THE MERE FACT OF OWNERSHIP, REGARDLESS OF USE OR
DISPOSITION OF THE SECURITY.  THE TAX UPON PROFITS MADE UPON PURCHASES
AND SALES IS AN EXCISE UPON THE RESULT OF THE COMBINATION OF SEVERAL
FACTORS, INCLUDING CAPITAL INVESTMENT AND, QUITE GENERALLY, SOME
MEASURE OF SAGACITY; THE GAIN MAY BE REGARDED AS 'THE CREATION OF
CAPITAL, INDUSTRY AND SKILL.'  TAX COMMISSIONER V. PUTNAM, 227 MASS.
522, 531." 

TRUE, THE BUNN CASE DEALT ONLY WITH THE ALLEGED CONSTITUTIONAL
INHIBITION AGAINST TAXATION OF CAPITAL GAINS ON MUNICIPAL BONDS AND NOT
WITH A SPECIFIC STATUTORY EXEMPTION.  BUT ITS ANALYSIS IS COGNATE HERE
AS INDICATING THAT, IN ABSENCE OF CLEAR COUNTERVAILING EVIDENCE, AN
EXEMPTION OF "INCOME DERIVED" FROM A SECURITY DOES NOT EMBRACE "INCOME
DERIVED" FROM TRANSACTIONS IN THAT SECURITY. 

THERE ARE NO CIRCUMSTANCES HERE WHICH SHOULD MAKE THE REASONING OF
THE BUNN CASE INAPPLICABLE. 

THE REVENUE ACT OF 1916(39 STAT. 756) WAS ENACTED SHORTLY AFTER THE
FARM LOAN ACT BY THE SAME CONGRESS AND AT THE SAME SESSION.  FN3  SEC.
2 OF THAT ACT, LIKE SEC. 22(A) OF THE 1928 ACT, INCLUDED IN TAXABLE
INCOME "GAINS, PROFITS, AND INCOME DERIVED FROM  ...  SALES, OR
DEALINGS IN PROPERTY."  AND SEC. 4 OF THAT ACT, LIKE SEC. 22(B)(4) OF
THE 1928 ACT, EXEMPTED FROM TAXATION "INTEREST UPON  ...  SECURITIES
ISSUED UNDER THE PROVISIONS OF THE FEDERAL FARM LOAN ACT."  IT IS CLEAR
THAT "ALL ACTS IN PARI MATERIA ARE TO BE TAKEN TOGETHER, AS IF THEY
WERE ONE LAW."  UNITED STATES V. FREEMAN, 3 HOW.  556, 564.  THAT THESE
TWO ACTS ARE IN PARI MATERIA IS PLAIN.  BOTH DEAL WITH PRECISELY THE
SAME SUBJECT MATTER, VIZ., THE SCOPE OF THE TAX EXEMPTION AFFORDED FARM
LOAN BONDS.  THE LATER ACT CAN THEREFORE BE REGARDED AS A LEGISLATIVE
INTERPRETATION OF THE EARLIER ACT (COPE V. COPE, 137 U.S. 682, 688; CF.
STOCKDALE V. INSURANCE COMPANIES, 20 WALL.  323, 331-332) IN THE SENSE
THAT IT AIDS IN ASCERTAINING THE MEANING OF THE WORDS AS USED IN THEIR
CONTEMPORARY SETTING.  FN4  IT IS THEREFORE ENTITLED TO GREAT WEIGHT IN
RESOLVING ANY AMBIGUITIES AND DOUBTS.  CF. UNITED STATES V. STAFOFF,
260 U.S. 477, 480.  IN THAT VIEW THE EXPRESS EXEMPTION OF INTEREST
ALONE MAKES TOLERABLY CLEAR THAT CAPITAL GAINS ARE NOT EXEMPT. 

IN SUPPORT OF THE CONTRARY VIEW GREAT STRESS IS PLACED ON THE
LEGISLATIVE HISTORY OF SEC. 26.  EXTENSIVE REFERENCES ARE MADE TO THE
HEARINGS ON THIS BILL AND TO THE DEBATES IN CONGRESS.  TYPICAL ARE THE
STATEMENTS OR CRITICISMS THAT THE BILL GAVE "THESE INVESTMENTS A
DISTINCT ADVANTAGE OVER OTHER INVESTMENTS,"  FN5  THAT THE EXEMPTION
PROVISION WAS  FN6  THAT MAINTENANCE OF A MARKET FOR THE BONDS WAS
DESIRABLE,  FN7  THAT THE EXEMPTION WAS TOO BROAD.  FN8  THESE
COMMENTS, HOWEVER, ARE INCONCLUSIVE.  THEY ARE NOT SUFFICIENTLY
DISCRIMINATING IN THEIR ANALYSIS OR CRITICISM TO THROW LIGHT ON THE
NARROW ISSUE INVOLVED HERE. 

RESPONDENT'S RESORT TO ADMINISTRATIVE INTERPRETATION OF SEC. 26 IS
EQUALLY UNPRODUCTIVE.  NO ESTABLISHED ADMINISTRATIVE PRACTICE IS
SHOWN.  THE HOLDING OF THE UNPUBLISHED MEMORANDUM  FN9  OF THE GENERAL
COUNSEL OF THE BUREAU OF INTERNAL REVENUE RELIED UPON IS NOT PRECISELY
IN POINT, EVEN WERE WE TO ASSUME THAT IT IS ENTITLED TO AUTHORITATIVE
WEIGHT.  FN10  IT MERELY RULED THAT A JOINT-STOCK LAND BANK WAS NOT
TAXABLE ON GAINS FROM PURCHASES OF ITS OWN BONDS.  AND WHEN THE
QUESTION OF THE TAXABILITY OF AN INDIVIDUAL ON HIS CAPITAL GAINS FROM
SALES OF THESE BONDS WAS RAISED LESS THAN TWO YEARS LATER, ANOTHER SUCH
RULING WAS ISSUED TO THE EFFECT THAT HE DID NOT HAVE THE BENEFIT OF ANY
EXEMPTION.  FN11 

NOR IS RESPONDENT MATERIALLY AIDED BY THE CHANGE IN SEC. 26 MADE BY
SEC. 817 OF THE REVENUE ACT OF 1938(52 STAT. 447, 578).  THAT AMENDMENT
PROVIDES THAT "ALL INCOME, EXCEPT INTEREST, DERIVED" FROM SUCH BONDS,
SHALL BE INCLUDED IN GROSS INCOME.  FN12  IT IS URGED THAT THIS
AMENDMENT IS AFFIRMATIVE RECOGNITION BY THE CONGRESS THAT SEC. 26
EXEMPTS THESE CAPITAL GAINS.  BUT HERE AGAIN THE LEGISLATIVE RECORD IS
AMBIGUOUS AND HENCE INCONCLUSIVE.  THE PURPOSE OF SEC. 817, AS
ORIGINALLY INTRODUCED, CLEARLY WAS TO MAKE CERTAIN THAT CAPITAL GAINS
REALIZED BY JOINT-STOCK LAND BANKS ON TRANSACTIONS IN THEIR OWN
OBLIGATIONS WOULD NOT BE EXEMPT.  FN13  THE SECTION WAS AMENDED ON THE
FLOOR OF THE SENATE TO ITS PRESENT FORM ON THE SUGGESTION THAT "PERHAPS
THE LANGUAGE IS NOT AS BROAD AS IT SHOULD BE."  FN14  THE PURPOSE OF
THE AMENDMENT MAY WELL HAVE BEEN TO CLARIFY THE DOUBTFUL AND UNCERTAIN
STATUS OF CAPITAL GAINS WHICH WERE NOT COVERED BY THE COMMITTEE'S
RECOMMENDATION.  THERE IS NO CLEAR AND CONVINCING EVIDENCE THAT IT WAS
DESIGNED TO CHANGE EXISTING LAW, SO FAR AS THESE OTHER CATEGORIES OF
CAPITAL GAINS WERE CONCERNED.  BUT EVEN IF A CONTRARY IMPLICATION WERE
TO BE ASSUMED, IT WOULD NOT OVERRIDE SO BELATEDLY THE CLEAR INFERENCE,
BASED ON A LONG SERIES OF REVENUE ACTS EXEMPTING ONLY INTEREST, THAT
CAPITAL GAINS WERE TAXABLE. 

RESPONDENT FURTHER ARGUES THAT COMPARISON OF OTHER EXEMPTION STATUTES
WITH THE LANGUAGE OF SEC. 26 REINFORCES THE VIEW THAT THESE CAPITAL
GAINS ARE EXEMPT.  IN THAT CONNECTION OUR ATTENTION IS CALLED TO
NUMEROUS STATUTES - SOME EXEMPTING ONLY BONDS  FN15  AND OTHERS
EXEMPTING PRINCIPAL AND INTEREST; FN16  SOME EXEMPTING A CORPORATION,
"INCLUDING THE CAPITAL STOCK AND SURPLUS THEREIN, AND THE INCOME
DERIVED THEREFROM,"  FN17  AND OTHERS  FN18  CONTAINING SOMEWHAT
SIMILAR EXEMPTIONS FOR THE CORPORATION BUT ONLY AN EXEMPTION AS TO
PRINCIPAL AND INTEREST FOR ITS BONDS; AND STILL OTHERS  FN19
CONTAINING THE SAME KIND OF EXEMPTION AS SEC. 26 OF THE FARM LOAN ACT. 
FROM THIS PAINSTAKING REVIEW RESPONDENT ARGUES THAT WHERE CONGRESS HAS
DESIRED TO EXEMPT ONLY "INTEREST" IT HAS SAID SO AND WHERE IT HAS
INTENDED TO GRANT A BROADER EXEMPTION IT HAS USED THE WORD "INCOME";
THAT STATUTES EXEMPTING ONLY "INTEREST" HAVE A NARROWER MEANING THAN
THOSE EXEMPTING "INCOME"; AND THAT THIS LONG AND RECURRENT LEGISLATIVE
PRACTICE DISCLOSES A CLEAR DESIGN ON THE PART OF CONGRESS TO DRAW
DISTINCTIONS AND TO SHAPE THE VARIOUS EXEMPTIONS TO SUIT ITS DIFFERING
POLICY IN DIVERS SITUATIONS. 

SUGGESTIVE AS THIS ANALYSIS IS, IT IS ENTITLED TO LITTLE WEIGHT.  NO
MERE COLLATION OF OTHER STATUTES CAN BE DECISIVE IN DETERMINING WHAT
THE INSTANT STATUTE MEANS.  THE MEANING OF EACH PHRASE MUST BE CLOSELY
RELATED TO THE TIME AND CIRCUMSTANCE OF ITS USE.  THE PHRASE "INCOME
DERIVED THEREFROM" AS USED IN SEC. 26 CLEARLY HAS TAKEN ON COLORATION
FROM THE EXPRESS EXEMPTION FOR NEARLY A QUARTER CENTURY OF ONLY
INTEREST ON THESE BONDS.  WE HAVE NO OCCASION TO INTIMATE AN OPINION AS
TO THE MEANING OF OTHER SIMILAR STATUTES.  IT IS SUFFICIENT HERE TO
NOTE THAT IN ANOTHER LEGISLATIVE SETTING "INCOME DERIVED" FROM BONDS
MAY OR MAY NOT BE SYNONYMOUS WITH "INTEREST" ON BONDS.  THAT MUST
NECESSARILY BE DEPENDENT ON A HOST OF FACTORS WHICH ONLY A MINUTE
SCRUTINY OF THE PARTICULAR LEGISLATIVE SCHEME WOULD REVEAL.  FOR THIS
REASON THE FACT THAT THE SAME CONGRESS WHICH IN 1938 AMENDED SEC. 26
GRANTED AN EXEMPTION TO ANOTHER FEDERAL INSTRUMENTALITY  FN20  COUCHED
IN THE IDENTICAL LANGUAGE OF THE ORIGINAL SEC. 26 IS MERELY A STRAW IN
THE WIND.  SO FAR AS THE INSTANT BONDS ARE CONCERNED, THAT IN ITSELF IS
ENTITLED TO LITTLE WEIGHT AS AGAINST THE LONG STANDING EXPRESS
EXEMPTION IN SUCCESSIVE REVENUE ACTS OF INTEREST ALONE. 

RESPONDENT ALSO STRESSES THE FACT THAT CIRCULARS, PREPARED AND
DISTRIBUTED BY THE FARM LOAN BOARD "ADVISING INVESTORS OF THE MERITS
AND ADVANTAGES OF FARM LOAN BONDS,"  FN21  STATED THAT THESE BONDS AND
THEIR INCOME WERE "FREE FROM ALL FORMS OF TAXATION" INCLUDING THE
INCOME TAX, THAT "THIS EXEMPTION IS COMPLETE," ETC.  AS WE HAVE SAID,
IT WAS FOUND THAT RESPONDENT RELIED UPON SUCH STATEMENTS REASONABLY
BELIEVING THAT CAPITAL GAINS WOULD NOT BE TAXABLE.  BUT ASIDE FROM THE
FACT THAT THOSE STATEMENTS ARE HARDLY MORE SPECIFIC THAN THE STATUTE
ITSELF, THEY CANNOT BE ACCORDED THE WEIGHT OF UNIFORM AND LONG STANDING
ADMINISTRATIVE TREATMENT.  FN22  THERE WAS NO AUTHORITY FOR THE BOARD
TO MAKE REPRESENTATIONS THAT CAPITAL GAINS WERE OR WERE NOT TAX
EXEMPT.  THAT ADMINISTRATIVE FUNCTION RESIDED ONLY IN THE TREASURY.  AN
OFFICER OR AGENCY OF THE UNITED STATES TO WHOM NO ADMINISTRATIVE
AUTHORITY HAS BEEN DELEGATED CANNOT ESTOP THE UNITED STATES EVEN BY AN
AFFIRMATIVE UNDERTAKING TO WAIVE OR SURRENDER A PUBLIC RIGHT.  UTAH V.
UNITED STATES, 284 U.S. 534, 545-546; WILBER NATIONAL BANK V. UNITED
STATES, 294 U.S. 120, 123-124. 

WE RETURN TO OUR CONCLUSION THAT THE WEIGHT OF THESE VARIOUS
CONSIDERATIONS LEANS TO THE VIEW THAT ONLY INTEREST IS EXEMPT.  THE
CUMULATIVE STRENGTH OF THE SEVERAL FACTORS URGED BY RESPONDENT IS NOT
SUCH CLEAR EVIDENCE OF CONGRESSIONAL PURPOSE AS TO MAKE INAPPOSITE THE
APPLICATION OF THE REASONING OF WILLCUTS V. BUNN, SUPRA, TO THIS
SITUATION.  IN THAT POSTURE OF THE CASE, RESPONDENT HAS SUCCEEDED ONLY
IN CASTING SOME DOUBT ON THE PROPER CONSTRUCTION OF THE STATUTE.  YET
THOSE WHO SEEK AN EXEMPTION FROM A TAX MUST REST IT ON MORE THAN A
DOUBT OR AMBIGUITY.  BANK OF COMMERCE V. TENNESSEE, 161 U.S. 134, 146;
163 U.S. 416, 423.  EXEMPTIONS FROM TAXATION CANNOT REST UPON MERE
IMPLICATIONS.  UNITED STATES TRUST CO. V. HELVERING, 307 U.S. 57, 60. 
AS STATED BY MR. JUSTICE CARDOZO IN TROTTER V. TENNESSEE, 290 U.S. 354,
356, "EXEMPTIONS FROM TAXATION ARE NOT TO BE ENLARGED BY IMPLICATION IF
DOUBTS ARE NICELY BALANCED."  AND SEE PACIFIC CO., LTD., V. JOHNSON,
285 U.S. 480, 491.  HENCE BROAD, GENERALIZED STATUTORY EXEMPTIONS HAVE
FREQUENTLY BEEN CONSTRUED NARROWLY AND CONFINED TO THOSE SITUATIONS
WHERE THE SUBJECT MATTER OF THE EXEMPTION WAS DIRECTLY, NOT INDIRECTLY
OR REMOTELY, INVOLVED.  MURDOCK V. WARD, 178 U.S. 139; HALE V. STATE
BOARD OF ASSESSMENT AND REVIEW, 302 U.S. 95; UNITED STATES TRUST CO. V.
HELVERING, SUPRA.  THE EXEMPTION CONTAINED IN SEC. 26 OF THE FARM LOAN
ACT MUST BE SO CONSTRUED.    FOR THESE REASONS THE CHALLENGED JUDGMENT
MUST BE REVERSED.    FN1  THESE PURCHASES WERE FOR RESPONDENT AND HIS
WIFE WHO FILED SEPARATE RETURNS FOR THE YEAR IN QUESTION. 

FN2  THE RECORD DOES NOT SHOW WHAT PORTION, IF ANY, OF THE SUMS
RECEIVED ON THE SALE OR ON THE EXCHANGE OF THE BONDS AND APPURTENANT
COUPONS WAS RECEIVED AS PAYMENT ON ACCRUED INTEREST.  NOR DID THE
COMPLAINT ALLEGE THAT ANY PORTION OF THE SUMS RECEIVED WAS EXEMPT
BECAUSE IT WAS "INTEREST" ON THE BONDS.  HENCE THAT POINT WAS NOT
RAISED BELOW OR HERE. 

FN3  THE FARM LOAN ACT BECAME LAW ON JULY 17, 1916, THE REVENUE ACT
OF 1916 ON SEPTEMBER 8, 1916. 

FN4  IT SHOULD BE NOTED IN THIS CONNECTION THAT THE EXEMPTION OF
"INTEREST" CONTAINED IN SEC. 4 OF THE 1916 ACT WAS CONTINUED IN EACH
SUBSEQUENT REVENUE ACT UNTIL 1934.  SEC. 213(B)(4), REVENUE ACT OF
1918(40 STAT. 1057, 1065); SEC. 213(B)(4), REVENUE ACT OF 1921(42 STAT.
227, 238); SEC. 213(B)(4), REVENUE ACT OF 1924(43 STAT. 253, 268); SEC.
213(B)(4), REVENUE ACT OF 1926(44 STAT. 9, 24); SEC. 22(B)(4), REVENUE
ACT OF 1928(45 STAT. 791, 798; SEC. 22(B)(4), REVENUE ACT OF 1932(47
STAT. 169, 178).  BY SEC. 22(B)(4) OF THE REVENUE ACT OF 1934(48 STAT.
680, 687) THE EXEMPTION WAS GENERALIZED SO AS TO INCLUDE INTEREST ON
OBLIGATIONS OF ANY FEDERAL CORPORATION WHICH IS AN INSTRUMENTALITY OF
THE UNITED STATES, SUBJECT TO THE LIMITATION THAT INTEREST IS EXEMPT
ONLY IF AND TO THE EXTENT PROVIDED FOR IN THE ACTS OF CONGRESS
AUTHORIZING THE ISSUANCE OF SUCH OBLIGATIONS.  THE SENATE COMMITTEE (S.
REP. NO. 558, 73D CONG., 2D SESS., PP. 23-24; INTERNAL REV. BULL., CUM.
BULL.  1939-1, PART 2, P. 604) MADE THE FOLLOWING COMMENT ON THAT
CHANGE: 

"THIS IS MERELY A CLARIFYING CHANGE MADE BY THE HOUSE.  UNDER THE
LANGUAGE OF THIS SECTION, AS CONTAINED IN EXISTING LAW, INTEREST ON
SECURITIES ISSUED UNDER THE FEDERAL FARM LOAN ACT, OR SUCH ACT AS
AMENDED, IS EXPRESSLY EXCLUDED FROM GROSS INCOME AND THEREBY MADE
EXEMPT FROM THE INCOME TAX.  OTHER ACTS HAVE BEEN ENACTED WHICH ALSO
EXEMPT THE INTEREST ON OBLIGATIONS ISSUED THEREUNDER FROM TAX.  IN
ORDER TO BRING THE SECTION INTO ACCORD WITH THE ACTS AUTHORIZING SUCH
EXEMPTIONS AND TO AVOID THE NECESSITY OF REFERRING TO ALL SUCH ACTS, A
GENERAL PROVISION HAS BEEN INSERTED BY THE HOUSE EXCLUDING FROM GROSS
INCOME THE INTEREST UPON THE OBLIGATIONS OF A CORPORATION ORGANIZED
UNDER ACT OF CONGRESS IF SUCH CORPORATION IS AN INSTRUMENTALITY OF THE
UNITED STATES; SUBJECT TO THE LIMITATION, HOWEVER, THAT THE INTEREST IS
EXEMPT ONLY TO THE EXTENT PROVIDED FOR IN THE ACTS OF CONGRESS
AUTHORIZING THE ISSUANCE OF SUCH OBLIGATIONS." 

FN5  CONG. RECORD, 64TH CONG., 1ST SESS., VOL. 53, PART 8, P. 7312. 
AND SEE H. REP. NO. 630, 64TH CONG., 1ST SESS., P. 8. 

FN6  JOINT HEARINGS BEFORE SUB-COMMITTEES OF THE COMMITTEES ON
BANKING AND CURRENCY, RURAL CREDITS, 63D CONG., 2D SESS., PP. 95-97; S.
DOC. NO. 380, 63D CONG., 2D SESS., AGRICULTURAL CREDIT, REP. U.S.
COMMISSION, PP. 17, 33. 

FN7  H. DOC. NO. 679, 63D CONG., 2D SESS., PP. 15, 16. 

FN8  CONG. RECORD, OP. CIT., SUPRA, NOTE 5, PP. 6850, 7311.  NOR IS
IT SIGNIFICANT THAT SUBSTITUTE BILLS WERE OFFERED (CONG. RECORD, OP.
CIT., SUPRA, NOTE 5, PP. 7385, 7387; S. 4061, 63D CONG., 2D SESS.) BY
THE TERMS OF WHICH "INTEREST" WAS EXEMPTED.  THESE WERE OVERALL
SUBSTITUTES.  THEREFORE THE IMPLICATION IS NOT WARRANTED THAT THE
FAILURE OF THEIR ADOPTION WAS DUE TO THE DESIRE OF CONGRESS TO GRANT A
BROADER EXEMPTION THAN "INTEREST." 

FN9  THIS IS REPRODUCED, SO FAR AS MATERIAL HERE, IN S. HEARINGS,
COMMITTEE ON FINANCE, 75TH CONG., 3D SESS., H.R. 9682, PART 4, PP. 619
621. 

FN10  SEE HELVERING V. NEW YORK TRUST CO., 292 U.S. 455, 468. 

FN11  SEE AGRICULTURAL SECURITIES CORP. V. COMMISSIONER, 39 B.T.A.
1103, 1111. 

FN12  THIS AMENDMENT IS PROSPECTIVE ONLY.  IT PROVIDES: 

"NOTWITHSTANDING THE PROVISIONS OF SECTION 26 OF THE FEDERAL FARM
LOAN ACT, AS AMENDED, IN THE CASE OF MORTGAGES MADE OR OBLIGATIONS
ISSUED BY ANY JOINT-STOCK LAND BANK AFTER THE DATE OF THE ENACTMENT OF
THIS ACT, ALL INCOME, EXCEPT INTEREST, DERIVED THEREFROM SHALL BE
INCLUDED IN GROSS INCOME AND SHALL NOT BE EXEMPT FROM FEDERAL INCOME
TAXATION." 

FN13  S. REP. NO. 1567, 75TH CONG., 3D SESS., P. 47.  THIS REPORT
CLEARLY INDICATES THAT THE COMMITTEE WAS OF THE VIEW THAT UNDER SEC. 26
JOINT-STOCK LAND BANKS WERE EXEMPT FROM CAPITAL GAINS RESULTING FROM
PURCHASES OF THEIR OWN OBLIGATIONS.  A CHANGE IN THAT REGARD WAS
CLEARLY INTENDED, FOR THE COMMITTEE SAID, P. 47: 

"THIS SECTION SUBJECTS TO FEDERAL INCOME TAXATION THE CAPITAL GAIN
REALIZED BY A JOINT-STOCK LAND BANK ON THE PURCHASE OF ITS OWN
OBLIGATIONS OR OF MORTGAGES MADE BY IT.  IT HAS BEEN BROUGHT TO THE
ATTENTION OF THE COMMITTEE THAT THESE BANKS HAVE BEEN PURCHASING THEIR
OWN BONDS AT BELOW PAR AND ISSUING NEW BONDS AT OR ABOVE PAR. GAIN
REALIZED ON SUCH A PURCHASE IS, UNDER THE LAW, TAXABLE INCOME AND IN
THE CASE OF AN ORDINARY CORPORATION, IS TAXED.  UNDER THE FEDERAL FARM
LOAN ACT, HOWEVER, WHICH GOVERNS THE TAXABILITY OF OBLIGATIONS OF JOINT
STOCK LAND BANKS, SUCH INCOME IS EXEMPT.  THE COMMITTEE IS OF THE
OPINION THAT SUCH INCOME OUGHT TO BE TAXED."  THE COMMITTEE DRAFT OF
SEC. 817(THEN SEC. 816) PROVIDED FOR THAT CHANGE AS FOLLOWS (H.R. 9682,
75TH CONG., 3D SESS.): 

"NOTWITHSTANDING THE PROVISIONS OF SECTION 26 OF THE FEDERAL FARM
LOAN ACT, AS AMENDED, GAIN REALIZED ON THE ACQUISITION BY A JOINT-STOCK
LAND BANK OF OBLIGATIONS ISSUED BY IT OR MORTGAGES MADE BY IT, IF SUCH
OBLIGATIONS OR MORTGAGES ARE MADE OR ISSUED AFTER THE DATE OF THE
ENACTMENT OF THIS ACT, SHALL NOT BE EXEMPT FROM FEDERAL INCOME
TAXATION." 

AS INDICATED, SUPRA, NOTE 9, THE UNPUBLISHED MEMORANDUM OF THE
GENERAL COUNSEL OF THE BUREAU OF INTERNAL REVENUE RULING THAT A JOINT
STOCK LAND BANK WAS NOT TAXABLE ON GAINS FROM PURCHASES OF ITS OWN
BONDS WAS BEFORE THE SENATE COMMITTEE.  CF. THE RECOMMENDATION MADE TO
THE COMMITTEE, S. HEARINGS, OP. CIT., SUPRA, NOTE 9, PP. 614, 615. 

FN14  STATEMENT BY SENATOR KING, MEMBER OF THE COMMITTEE ON FINANCE,
CONG. RECORD, VOL. 83, 75TH CONG., 3D SESS., P. 4959.  WHEN SENATOR
KING OFFERED THE AMENDMENT, HE GAVE THE FOLLOWING EXPLANATION (ID. P.
5174): 

"THE BILL AS REPORTED SUBJECTED TO FEDERAL INCOME TAXATION CAPITAL
GAINS REALIZED BY A JOINT-STOCK LAND BANK ON OBLIGATIONS ISSUED AND
MORTGAGES MADE BY IT AFTER THE DATE OF ENACTMENT OF THE ACT.  THE
EFFECT OF THE AMENDMENT IS NOT ONLY TO TAX THAT GAIN BUT ALSO TO TAX
GAIN REALIZED BY ANOTHER JOINT-STOCK LAND BANK OR BY AN INDIVIDUAL OR
CORPORATION WHICH ITSELF IS NOT EXEMPT FROM FEDERAL TAXATION.  THUS,
GAIN ON A SALE OF SUCH A JOINT-STOCK LAND BANK BOND BY AN INVESTOR IS
SUBJECT TO TAX.  THE AMENDMENT CONTINUES THE PRESENT PROVISION OF LAW
UNDER WHICH INTEREST ON SUCH BONDS AND MORTGAGES IS EXEMPT FROM FEDERAL
TAXATION." 

FN15  STATUTES GOVERNING PANAMA CANAL TOLL BONDS (32 STAT. 481, 484;
36 STAT. 11, 117) AND POSTAL SAVINGS BONDS (36 STAT. 814, 817) ARE
CITED. 

FN16  REFERENCE IS MADE TO VARIOUS STATUTES INCLUDING THOSE
PERTAINING TO TREASURY NOTES (38 STAT. 251, 269) AND SEVERAL OF THE
LIBERTY LOANS (40 STAT. 35; 40 STAT. 288, 291; 40 STAT. 1309, 1310). 

FN17  FEDERAL RESERVE ACT OF DECEMBER 23, 1913(38 STAT. 251, 258). 
AND SEE BANKHEAD-JONES FARM TENANT ACT OF JULY 22, 1937(50 STAT. 522,
528); AGRICULTURAL ADJUSTMENT ACT OF 1938(52 STAT. 31, 75). 

FN18  REFERENCE IS MADE TO THE WAR FINANCE CORPORATION ACT OF APRIL
5, 1938(40 STAT. 506, 511); RECONSTRUCTION FINANCE CORPORATION ACT OF
JANUARY 22, 1932(47 STAT. 5, 9); HOME OWNERS' LOAN ACT OF JUNE 13,
1933(48 STAT. 128, 130). 

FN19  FEDERAL FARM MORTGAGE CORPORATION ACT OF JANUARY 31, 1934(48
STAT. 344, 347); COMMODITY CREDIT CORPORATION ACT OF MARCH 8, 1938(52
STAT. 107, 108). 

FN20  COMMODITY CREDIT CORPORATION, SUPRA, NOTE 19. 

FN21  PURSUANT TO THE AUTHORITY VESTED IN THE FEDERAL FARM LOAN BOARD
BY SEC. 3 OF THE ACT. 

FN22  NOR CAN THE CASUAL STATEMENT BY THE SECRETARY OF THE TREASURY,
IN THE COURSE OF A CONGRESSIONAL HEARING ON THE REVENUE ACT OF 1918, TO
THE EFFECT THAT "LAND BANK BONDS CARRY A WIDER EXEMPTION THAN LIBERTY
BONDS," (S. HEARINGS, H.R. 12863, 65TH CONG., 3D SESS., PART 4, P. 117)
CARRY AUTHORITATIVE WEIGHT, AS IT DOES NOT EVEN PURPORT TO BE A
DISCRIMINATING ANALYSIS OF THIS PROBLEM IN ITS VARIOUS ASPECTS. 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED ON THE GROUNDS STATED BY THE CIRCUIT COURT OF APPEALS IN ITS
OPINION BELOW, 106 F.2D 405. 
..END :




















I.A. OF M. V. LABOR BOARD, 311 U.S. 72 


NO. 16.  ARGUED OCTOBER 24, 1940.  - DECIDED NOVEMBER 12, 1940.  - 71
APP. D.C. 175 - 110 F.2D 29, AFFIRMED. 


1.  THE NATIONAL LABOR RELATIONS BOARD, FINDING THAT A LABOR
ORGANIZATION, HAVING A CLOSED-SHOP CONTRACT WITH AN EMPLOYER, HAD BEEN
"ASSISTED" IN ITS ORGANIZATIONAL DRIVE BY UNFAIR LABOR PRACTICES OF THE
EMPLOYER, WAS AUTHORIZED TO ORDER THE EMPLOYER TO CEASE AND DESIST FROM
GIVING EFFECT TO THE CONTRACT.  P. 75. 

2.  THE FINDING OF THE NATIONAL LABOR RELATIONS BOARD IN THIS CASE
THAT A LABOR ORGANIZATION HAD BEEN "ASSISTED" BY UNFAIR LABOR PRACTICES
OF THE EMPLOYER IS SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 75. 

3.  THE BOARD'S FINDINGS IN THIS CASE HAVING BEEN CONFIRMED BY THE
COURT BELOW, THERE IS NO NEED HERE TO REVIEW THE EVIDENCE IN DETAIL. 
P. 75. 

4.  IN DETERMINING, UPON THE RECORD OF THIS CASE, WHETHER A LABOR
ORGANIZATION WAS "ASSISTED" BY UNFAIR LABOR PRACTICES OF THE EMPLOYER,
THE BOARD COULD PROPERLY CONSIDER NOT ONLY THE EMPLOYER'S ACTIVITIES
DURING THE ORGANIZATION'S MEMBERSHIP DRIVE BUT ALSO PREVIOUS AND
SUBSEQUENT ACTIVITIES.  P. 79. 

5.  THAT, IN RESPECT OF THE PERIOD BETWEEN THE TIME AS OF WHICH A
LABOR ORGANIZATION CLAIMS TO HAVE OBTAINED A MAJORITY OF THE WORKERS IN
AN APPROPRIATE UNIT AND THE DATE OF THE EXECUTION OF A CLOSED-SHOP
CONTRACT BETWEEN IT AND THE EMPLOYER, THE BOARD MADE NO FINDING THAT
THE CLAIMED MAJORITY WAS MAINTAINED BY UNFAIR LABOR PRACTICES, IS NOT
MATERIAL IN THIS CASE.  THE FINDING OF THE BOARD THAT THE LABOR
ORGANIZATION DID NOT REPRESENT AN UNCOERCED MAJORITY OF THE EMPLOYEES
IN SUCH UNIT WHEN THE CLOSED-SHOP CONTRACT WAS EXECUTED IS ADEQUATE TO
SUPPORT THE CONCLUSION THAT THE MAINTENANCE AS WELL AS THE ACQUISITION
OF THE ALLEGED MAJORITY WAS WRONGFULLY ACHIEVED.  P. 78. 

6.  AN EMPLOYER MAY BE FOUND UNDER THE NATIONAL LABOR RELATIONS ACT
TO HAVE "ASSISTED" A LABOR ORGANIZATION BY UNFAIR LABOR PRACTICES, EVEN
THOUGH THE EMPLOYEES THROUGH WHOSE ACTIVITIES THE EMPLOYER IS REGARDED
AS HAVING SO ASSISTED WERE NOT EMPLOYED IN A "SUPERVISORY" CAPACITY,
AND EVEN THOUGH THEIR ACTS WERE NOT EXPRESSLY AUTHORIZED OR WERE NOT
SUCH AS MIGHT CONSTITUTE A BASIS OF EMPLOYER LIABILITY UNDER THE
DOCTRINE OF RESPONDEAT SUPERIOR.  PP. 79-80. 

7.  WHERE, AS HERE, THERE IS AMPLE EVIDENCE TO SUPPORT AN INFERENCE
THAT THE EMPLOYEES BELIEVED THAT CERTAIN SOLICITORS, THOUGH BONA FIDE
MEMBERS OF A LABOR ORGANIZATION AND PROFESSEDLY ACTING THEREFOR, WERE
IN FACT ACTING FOR AND ON BEHALF OF THE EMPLOYER, THE BOARD MAY
JUSTIFIABLY FIND THAT THE EMPLOYEES DID NOT HAVE THE COMPLETE AND
UNHAMPERED FREEDOM OF CHOICE WHICH THE ACT CONTEMPLATES.  P. 80. 

8.  WHERE, IN A PROCEEDING UNDER SEC. 10 OF THE NATIONAL LABOR
RELATIONS ACT, THE BOARD FINDS THAT A LABOR ORGANIZATION HAS BEEN
ASSISTED BY UNFAIR LABOR PRACTICES OF THE EMPLOYER, IT MAY ORDER THE
EMPLOYER TO DEAL EXCLUSIVELY, FOR PURPOSES OF COLLECTIVE BARGAINING,
WITH A RIVAL LABOR ORGANIZATION; AND THE BOARD MAY PROPERLY REFUSE TO
ACT UPON A NOTICE RECEIVED FROM THE FIRST LABOR ORGANIZATION, PRIOR TO
THE ISSUANCE OF ITS ORDER, THAT THAT ORGANIZATION HAS OBTAINED A
MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE BARGAINING UNIT.  P. 81. 

INTERNATIONAL ASSOCIATION OF MACHINISTS; TOOL AND DIE MAKERS LODGE NO.
35, ETC. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 309 U.S. 649, TO REVIEW A DECISION AFFIRMING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THERE ARE TWO QUESTIONS HERE FOR DECISION:  (1) WHETHER ON THE FACTS
OF THIS CASE THE NATIONAL LABOR RELATIONS BOARD WAS WITHOUT AUTHORITY
IN FINDING THAT AN INDUSTRIAL UNIT WAS APPROPRIATE FOR COLLECTIVE
BARGAINING PURPOSES TO THE EXCLUSION OF A CRAFT UNIT; AND (2) WHETHER
THE BOARD HAD AUTHORITY TO REQUIRE THE EMPLOYER TO BARGAIN WITH THAT
INDUSTRIAL UNIT, DESPITE A CLAIM SUBMITTED TO THE BOARD BY THE CRAFT
UNIT BEFORE THE ORDER ISSUED THAT THE LATTER THEN HAD BEEN DESIGNATED
BY A MAJORITY OF ALL THE EMPLOYEES.  WE GRANTED CERTIORARI BECAUSE OF
THE IMPORTANCE OF THESE QUESTIONS IN THE ADMINISTRATION OF THE NATIONAL
LABOR RELATIONS ACT (49 STAT. 449) AND BECAUSE OF AN ASSERTED CONFLICT
BETWEEN THE DECISION BELOW (71 APP. D.C. 175; 110 F.2D 29) AND HAMILTON
BROWN SHOE CO. V. NATIONAL LABOR RELATIONS BOARD, 104 F.2D 49, ON THE
SECOND QUESTION. 

THE BOARD FOUND, IN PROCEEDINGS DULY HAD UNDER SEC. 10 OF THE ACT,
THAT THE EMPLOYER, SERRICK CORPORATION, HAD ENGAGED IN UNFAIR LABOR
PRACTICES WITHIN THE MEANING OF THE ACT.  IT ORDERED THE EMPLOYER TO
CEASE AND DESIST FROM THOSE PRACTICES AND TO TAKE CERTAIN AFFIRMATIVE
ACTION.  MORE SPECIFICALLY, IT DIRECTED THE EMPLOYER TO CEASE GIVING
EFFECT TO A CLOSED-SHOP CONTRACT WITH PETITIONER  FN1  COVERING THE
TOOLROOM EMPLOYEES; TO DEAL WITH U.A.W., AN INDUSTRIAL UNIT,  FN2 AS
THE EXCLUSIVE BARGAINING AGENT OF ITS EMPLOYEES, INCLUDING THE TOOLROOM
MEN; TO DESIST FROM VARIOUS DISCRIMINATORY PRACTICES IN FAVOR OF
PETITIONER AND AGAINST U.A.W.; AND TO REINSTATE AND MAKE WHOLE CERTAIN
EMPLOYEES WHO HAD BEEN IMPROPERLY DISCHARGED.  THE EMPLOYER HAS
COMPLIED WITH THE BOARD'S ORDER.  BUT PETITIONER, AN INTERVENER IN THE
PROCEEDINGS BEFORE THE BOARD, FILED A PETITION IN THE COURT BELOW TO
REVIEW AND SET ASIDE THOSE PORTIONS OF THE ORDER WHICH DIRECT THE
EMPLOYER TO CEASE AND DESIST FROM GIVING EFFECT TO ITS CLOSED-SHOP
CONTRACT WITH PETITIONER AND TO BARGAIN EXCLUSIVELY WITH U.A.W.  THE
COURT BELOW AFFIRMED THE ORDER OF THE BOARD. 

ABROGATION OF PETITIONER'S CLOSED-SHOP CONTRACT.  - THE BOARD FOUND
THAT THE CLOSED-SHOP CONTRACT BETWEEN PETITIONER AND THE EMPLOYER WAS
INVALID UNDER SEC. 8(3) OF THE ACT  FN3  BECAUSE IT HAD BEEN "ASSISTED"
BY UNFAIR LABOR PRACTICES OF THE EMPLOYER, BECAUSE PETITIONER DID NOT
REPRESENT AN UNCOERCED MAJORITY OF THE TOOLROOM EMPLOYEES AT THE TIME
THE CONTRACT WAS EXECUTED, AND BECAUSE FOR THIS AND OTHER REASONS IT
WAS NOT AN APPROPRIATE BARGAINING UNIT.  WE THINK THERE WAS SUBSTANTIAL
EVIDENCE THAT PETITIONER HAD BEEN ASSISTED BY UNFAIR LABOR PRACTICES OF
THE EMPLOYER AND THAT THEREFORE THE BOARD WAS JUSTIFIED IN REFUSING TO
GIVE EFFECT TO ITS CLOSED-SHOP CONTRACT. 

SINCE THE COURT BELOW HAS CONFIRMED THE FINDINGS OF THE BOARD THERE
IS NO NEED TO REVIEW THE EVIDENCE IN DETAIL.  NATIONAL LICORICE CO. V.
NATIONAL LABOR RELATIONS BOARD, 309 U.S. 350, 357.  IT IS CLEAR THAT
THE EMPLOYER HAD AN OPEN AND AVOWED HOSTILITY TO U.A.W.  IT IS PLAIN
THAT THE EMPLOYER EXERTED GREAT EFFORT, THOUGH UNSUCCESSFULLY, TO
SUSTAIN ITS OLD COMPANY UNION, THE ACME WELFARE ASSOCIATION, AS A
BULWARK AGAINST U.A.W.  AND IT IS EVIDENT THAT THE EMPLOYER, WHILE
EVINCING GREAT HOSTILITY TO U.A.W. IN A CONTEST TO ENLIST ITS
PRODUCTION FORCE, ACQUIESCED WITHOUT PROTEST IN THE ORGANIZATION BY
PETITIONER OF THE TOOLROOM EMPLOYEES.  THE MAIN CONTESTED ISSUE HERE IS
NARROWLY CONFINED.  IT IS WHETHER OR NOT THE EMPLOYER "ASSISTED" THE
PETITIONER IN ENROLLING ITS MAJORITY. 

FOUTS, SHOCK, DININGER, BOLANDER, BYROAD AND BAKER WERE ALL EMPLOYEES
OF THE TOOLROOM.  FOUR OF THESE - FOUTS, SHOCK, BYROAD AND BOLANDER -
WERE OLD AND TRUSTED EMPLOYEES.  FOUTS WAS "MORE OR LESS AN ASSISTANT
FOREMAN," HAVING CERTAIN EMPLOYEES UNDER HIM.  SHOCK WAS IN CHARGE OF
THE TOOLROOM DURING THE ABSENCE OF THE FOREMAN.  DININGER AND BOLANDER
WERE IN CHARGE OF THE SECOND AND THIRD SHIFTS RESPECTIVELY, WORKING AT
NIGHT.  PRIOR TO MID-JULY, 1937, THEY HAD BEEN ACTIVELY ENGAGED ON
BEHALF OF THE COMPANY UNION.  WHEN IT BECAME APPARENT AT THAT TIME THAT
THE EFFORTS TO BUILD UP THAT UNION WERE NOT SUCCESSFUL, FOUTS, SHOCK,
BYROAD AND BOLANDER SUDDENLY SHIFTED THEIR SUPPORT FROM THE COMPANY
UNION TO PETITIONER AND MOVED INTO THE FOREFRONT IN ENLISTING THE
SUPPORT OF THE EMPLOYEES FOR PETITIONER.  THE GENERAL MANAGER TOLD
SHOCK THAT HE WOULD CLOSE THE PLANT RATHER THAN DEAL WITH U.A.W.  THE
SUPERINTENDENT AND SHOCK REPORTED TO TOOLROOM EMPLOYEES THAT THE
EMPLOYER WOULD NOT RECOGNIZE THE C.I.O.  THE SUPERINTENDENT LET IT BE
KNOWN THAT THE EMPLOYER WOULD DEAL WITH AN A.F. OF L. UNION.  AT THE
SAME TIME THE SUPERINTENDENT ALSO STATED TO ONE OF THE EMPLOYEES THAT
SOME OF THE "FOREMEN DON'T LIKE THE C.I.O."  AND ADDED, WITH PROPHETIC
VISION, THAT THERE WAS "GOING TO BE QUITE A LAYOFF AROUND HERE AND
THESE FELLOWS THAT DON'T LIKE THE C.I.O. ARE GOING TO LAY THOSE FELLOWS
OFF FIRST."  DURING WORKING HOURS, BYROAD CONDUCTED A STRAW VOTE AMONG
THE EMPLOYEES AND UNDER THE DIRECTION OF FOUTS AND SHOCK LEFT THE PLANT
TO SEEK OUT AN ORGANIZER FOR PETITIONER.  FOUTS SOLICITED AMONG WORKMEN
IN THE TOOLROOM STATING THAT HIS PURPOSE WAS TO "BEAT" THE U.A.W.  FOR
A WEEK PRECEDING AUGUST 13, SHOCK SPENT MUCH TIME, AS DID BYROAD, GOING
"FROM ONE BENCH TO ANOTHER SOLICITING" FOR PETITIONER.  BAKER LIKEWISE
SOLICITED.  DININGER OFFERED AN EMPLOYEE A "GOOD RATING" IF HE WOULD
JOIN PETITIONER.  NOT LESS THAN A WEEK BEFORE AUGUST 13, THE PERSONNEL
DIRECTOR ADVISED TWO EMPLOYEES TO "JOIN THE A.F. OF L."  BYROAD SPENT
CONSIDERABLE TIME DURING WORKING HOURS SOLICITING EMPLOYEES,
THREATENING LOSS OF EMPLOYMENT TO THOSE WHO DID NOT SIGN UP WITH
PETITIONER AND REPRESENTING THAT HE WAS ACTING IN LINE WITH THE DESIRES
OF THE TOOLROOM FOREMAN, MCCOY.  THIS ACTIVE SOLICITATION FOR
PETITIONER WAS ON COMPANY TIME AND WAS MADE OPENLY IN THE SHOP.  MUCH
OF IT WAS MADE IN THE PRESENCE OF THE TOOLROOM FOREMAN, MCCOY, WHO
CLEARLY KNEW WHAT WAS BEING DONE.  YET THE FREEDOM ALLOWED SOLICITORS
FOR PETITIONER WAS APPARENTLY DENIED SOLICITORS FOR U.A.W.  THE PLANT
MANAGER WARNED SOME OF THE LATTER TO CHECK OUT THEIR TIME FOR A
CONFERENCE WITH HIM ON U.A.W. AND QUESTIONED THEIR RIGHT TO DISCUSS
U.A.W. MATTERS ON COMPANY PROPERTY.  THE INFERENCE IS JUSTIFIED THAT
U.A.W. SOLICITORS WERE CLOSELY WATCHED, WHILE THOSE ACTING FOR
PETITIONER WERE ALLOWED MORE LEEWAY. 

FIVE U.A.W. OFFICIALS HAD BEEN DISCHARGED IN JUNE, 1937, BECAUSE OF
THEIR UNION ACTIVITIES.  THE KNOWN ANTAGONISM OF THE EMPLOYER TO U.A.W.
BEFORE PETITIONER'S DRIVE FOR MEMBERSHIP STARTED MADE IT PATENT THAT
THE EMPLOYEES WERE NOT FREE TO CHOOSE U.A.W. AS THEIR BARGAINING
REPRESENTATIVE.  PETITIONER STARTED ITS DRIVE FOR MEMBERSHIP LATE IN
JULY, 1937, AND ITS CLOSED-SHOP CONTRACT WAS SIGNED AUGUST 11, 1937. 
FN4  ON AUGUST 10, 1937, THE U.A.W., HAVING A CLEAR MAJORITY OF ALL THE
EMPLOYEES, PRESENTED TO THE EMPLOYER A PROPOSED WRITTEN CONTRACT FOR
COLLECTIVE BARGAINING.  THIS WAS REFUSED.  ON AUGUST 13, 1937, ALL
TOOLROOM EMPLOYEES WHO REFUSED MEMBERSHIP IN PETITIONER, SOME 20 IN
NUMBER, WERE DISCHARGED.  ON AUGUST 15, 1937, THE MANAGEMENT CIRCULATED
AMONG THE EMPLOYEES A STATEMENT WHICH, AS FOUND BY THE BOARD, WAS A
THINLY VEILED ATTACK ON THE U.A.W. AND A FIRM DECLARATION THAT THE
EMPLOYER WOULD NOT ENTER INTO ANY AGREEMENT WITH IT. 

PETITIONER INSISTS THAT THE EMPLOYER'S HOSTILITY TO U.A.W. CANNOT BE
TRANSLATED INTO ASSISTANCE TO THE PETITIONER AND THAT NONE OF THE ACTS
OF THE EMPLOYEES ABOVE MENTIONED, WHO WERE SOLICITING FOR PETITIONER,
CAN BE ATTRIBUTED TO THE EMPLOYER. 

WE DISAGREE WITH THAT VIEW.  WE AGREE WITH THE COURT BELOW THAT THE
TOOLROOM EPISODE WAS BUT AN INTEGRAL PART OF A LONG PLANT CONTROVERSY. 
WHAT HAPPENED DURING THE RELATIVELY BRIEF PERIOD FROM LATE JULY TO
AUGUST 11, 1937, CANNOT PROPERLY BE DIVORCED FROM THE EVENTS
IMMEDIATELY PRECEDING AND FOLLOWING.  THE ACTIVE OPPOSITION OF THE
EMPLOYER TO U.A.W. THROUGHOUT THE WHOLE CONTROVERSY HAS A DIRECT
BEARING ON THE EVENTS DURING THAT INTERMEDIATE PERIOD.  KNOWN HOSTILITY
TO ONE UNION AND CLEAR DISCRIMINATION AGAINST IT MAY INDEED MAKE
SEEMINGLY TRIVIAL INTIMATIONS OF PREFERENCE FOR ANOTHER UNION POWERFUL
ASSISTANCE FOR IT.  SLIGHT SUGGESTIONS AS TO THE EMPLOYER'S CHOICE
BETWEEN UNIONS MAY HAVE TELLING EFFECT AMONG MEN WHO KNOW THE
CONSEQUENCES OF INCURRING THAT EMPLOYER'S STRONG DISPLEASURE.  THE
FREEDOM OF ACTIVITY PERMITTED ONE GROUP AND THE CLOSE SURVEILLANCE
GIVEN ANOTHER MAY BE MORE POWERFUL SUPPORT FOR THE FORMER THAN CAMPAIGN
UTTERANCES. 

TO BE SURE, IT DOES NOT APPEAR THAT THE EMPLOYER INSTIGATED THE
INTRODUCTION OF PETITIONER INTO THE PLANT.  BUT THE BOARD WAS WHOLLY
JUSTIFIED IN FINDING THAT THE EMPLOYER "ASSISTED" IT IN ITS
ORGANIZATIONAL DRIVE.  SILENT APPROVAL OF OR ACQUIESCENCE IN THAT DRIVE
FOR MEMBERSHIP AND CLOSE SURVEILLANCE OF THE COMPETITOR; THE
INTIMATIONS OF THE EMPLOYER'S CHOICE MADE BY SUPERIORS; THE FACT THAT
THE EMPLOYEE-SOLICITORS HAD BEEN CLOSELY IDENTIFIED WITH THE COMPANY
UNION UNTIL THEIR QUICK SHIFT TO PETITIONER; THE RANK AND POSITION OF
THOSE EMPLOYEE-SOLICITORS; THE READY ACCEPTANCE OF PETITIONER'S
CONTRACT AND THE CONTEMPORANEOUS REJECTION OF THE CONTRACT TENDERED BY
U.A.W.; THE EMPLOYER'S KNOWN PREJUDICE AGAINST THE U.A.W. WERE ALL
PROPER ELEMENTS FOR IT TO TAKE INTO CONSIDERATION IN WEIGHING THE
EVIDENCE AND DRAWING ITS INFERENCES.  TO SAY THAT THE BOARD MUST
DISREGARD WHAT PRECEDED AND WHAT FOLLOWED THE MEMBERSHIP DRIVE WOULD BE
TO REQUIRE IT TO SHUT ITS EYES TO POTENT IMPONDERABLES PERMEATING THIS
ENTIRE RECORD.  THE DETECTION AND APPRAISAL OF SUCH IMPONDERABLES ARE
INDEED ONE OF THE ESSENTIAL FUNCTIONS OF AN EXPERT ADMINISTRATIVE
AGENCY. 

PETITIONER ASSERTS THAT IT HAD OBTAINED ITS MAJORITY OF TOOLROOM
EMPLOYEES BY JULY 28, 1938, AND THAT THERE WAS NO FINDING BY THE BOARD
THAT THAT MAJORITY WAS MAINTAINED BETWEEN THEN AND THE DATE OF
EXECUTION OF THE CLOSED-SHOP CONTRACT BY UNFAIR LABOR PRACTICES.  IN
THIS CASE, HOWEVER, THAT IS AN IRRELEVANT REFINEMENT.  THE EXISTENCE OF
UNFAIR LABOR PRACTICES THROUGHOUT THIS WHOLE PERIOD PERMITS THE
INFERENCE THAT THE EMPLOYEES DID NOT HAVE THAT FREEDOM OF CHOICE WHICH
IS THE ESSENCE OF COLLECTIVE BARGAINING.  AND THE FINDING OF THE BOARD
THAT PETITIONER DID NOT REPRESENT AN UNCOERCED MAJORITY OF TOOLROOM
EMPLOYEES WHEN THE CLOSED-SHOP CONTRACT WAS EXECUTED IS ADEQUATE TO
SUPPORT THE CONCLUSION THAT THE MAINTENANCE AS WELL AS THE ACQUISITION
OF THE ALLEGED MAJORITY WAS CONTAMINATED BY THE EMPLOYER'S AID. 

PETITIONER ATTACKS THE BOARD'S CONCLUSION THAT ITS MEMBERSHIP DRIVE
WAS HEADED BY "SUPERVISORY" EMPLOYEES - FOUTS, SHOCK, DININGER AND
BOLANDER.  ACCORDING TO PETITIONER THESE MEN WERE NOT FOREMEN, LET
ALONE SUPERVISORS ENTRUSTED WITH EXECUTIVE OR DIRECTORIAL FUNCTIONS,
BUT MERELY "LEAD MEN" WHO BY REASON OF LONG EXPERIENCE WERE SKILLED IN
HANDLING NEW JOBS AND HENCE DIRECTED THE SET-UP OF THE WORK. 
PETITIONER'S ARGUMENT IS THAT SINCE THESE MEN WERE NOT SUPERVISORY
THEIR ACTS OF SOLICITATION WERE NOT COERCIVE AND NOT ATTRIBUTABLE TO
THE EMPLOYER. 

THE EMPLOYER, HOWEVER, MAY BE HELD TO HAVE ASSISTED THE FORMATION OF
A UNION EVEN THOUGH THE ACTS OF THE SO-CALLED AGENTS WERE NOT EXPRESSLY
AUTHORIZED OR MIGHT NOT BE ATTRIBUTABLE TO HIM ON STRICT APPLICATION OF
THE RULES OF RESPONDEAT SUPERIOR.  WE ARE DEALING HERE NOT WITH PRIVATE
RIGHTS (AMALGAMATED UTILITY WORKERS V. CONSOLIDATED EDISON CO., 309
U.S. 261) NOR WITH TECHNICAL CONCEPTS PERTINENT TO AN EMPLOYER'S LEGAL
RESPONSIBILITY TO THIRD PERSONS FOR ACTS OF HIS SERVANTS, BUT WITH A
CLEAR LEGISLATIVE POLICY TO FREE THE COLLECTIVE BARGAINING PROCESS FROM
ALL TAINT OF AN EMPLOYER'S COMPULSION, DOMINATION, OR INFLUENCE.  THE
EXISTENCE OF THAT INTERFERENCE MUST BE DETERMINED BY CAREFUL SCRUTINY
OF ALL THE FACTORS, OFTEN SUBTLE, WHICH RESTRAIN THE EMPLOYEES' CHOICE
AND FOR WHICH THE EMPLOYER MAY FAIRLY BE SAID TO BE RESPONSIBLE.  THUS,
WHERE THE EMPLOYEES WOULD HAVE JUST CAUSE TO BELIEVE THAT SOLICITORS
PROFESSEDLY FOR A LABOR ORGANIZATION WERE ACTING FOR AND ON BEHALF OF
THE MANAGEMENT, THE BOARD WOULD BE JUSTIFIED IN CONCLUDING THAT THEY
DID NOT HAVE THE COMPLETE AND UNHAMPERED FREEDOM OF CHOICE WHICH THE
ACT CONTEMPLATES.  FN5  HERE THERE WAS AMPLE EVIDENCE TO SUPPORT THAT
INFERENCE.  AS WE HAVE SAID, FOUTS, SHOCK, DININGER AND BOLANDER ALL
HAD MEN WORKING UNDER THEM.  TO BE SURE, THEY WERE NOT HIGH IN THE
FACTORY HIERARCHY AND APPARENTLY DID NOT HAVE THE POWER TO HIRE OR TO
FIRE.  BUT THEY DID EXERCISE GENERAL AUTHORITY OVER THE EMPLOYEES AND
WERE IN A STRATEGIC POSITION TO TRANSLATE TO THEIR SUBORDINATES THE
POLICIES AND DESIRES OF THE MANAGEMENT.  IT IS CLEAR THAT THEY DID
EXACTLY THAT.  MOREOVER, THREE OF THEM - FOUTS, SHOCK AND BOLANDER -
HAD BEEN ACTIVELY ENGAGED DURING THE PRECEDING WEEKS IN PROMOTING THE
COMPANY UNION.  DURING THE MEMBERSHIP DRIVE FOR PETITIONER THEY
STRESSED THE FACT THAT THE EMPLOYER WOULD PREFER THOSE WHO JOINED
PETITIONER TO THOSE WHO JOINED U.A.W.  THEY SPREAD THE IDEA THAT THE
PURPOSE IN ESTABLISHING PETITIONER WAS "TO BEAT THE C.I.O."  AND THAT
THE EMPLOYEES MIGHT WITHDRAW FROM THE PETITIONER ONCE THIS OBJECTIVE
WAS REACHED.  AND IN DOING THESE THINGS THEY WERE EMULATING THE EXAMPLE
SET BY THE MANAGEMENT.  THE CONCLUSION THEN IS JUSTIFIED THAT THIS IS
NOT A CASE WHERE SOLICITORS FOR ONE UNION MERELY ENGAGED IN A ZEALOUS
MEMBERSHIP DRIVE WHICH JUST HAPPENED TO COINCIDE WITH THE MANAGEMENT'S
DESIRES.  HENCE THE FACT THAT THEY WERE BONA FIDE MEMBERS OF PETITIONER
DID NOT REQUIRE THE BOARD TO DISREGARD THE OTHER CIRCUMSTANCES WE HAVE
NOTED. 

BY SEC. 8(3) OF THE ACT DISCRIMINATION UPON THE BASIS OF UNION
MEMBERSHIP CONSTITUTES AN UNFAIR LABOR PRACTICE UNLESS MADE BECAUSE OF
A VALID CLOSED-SHOP CONTRACT.  BUT THAT SECTION AUTHORIZES AN ORDER
UNDER SEC. 10 ABROGATING SUCH A CONTRACT WITH A LABOR ORGANIZATION
WHICH HAS BEEN ASSISTED BY UNFAIR LABOR PRACTICES.  THE PRESENCE OF
SUCH PRACTICES IN THIS CASE JUSTIFIED THE BOARD'S CONCLUSION THAT
PETITIONER DID NOT REPRESENT AN UNCOERCED MAJORITY OF THE TOOLROOM
EMPLOYEES.  SECS. 7, 8(1).  THIS CONCLUSION MAKES IT UNNECESSARY TO
PASS UPON THE SCOPE OF THE BOARD'S POWER TO DETERMINE THE APPROPRIATE
BARGAINING UNIT UNDER SEC. 9(B). 

ALLEGED CHANGE IN STATUS OF PETITIONER.  - PETITIONER CHALLENGES THE
ORDER DIRECTING THE EMPLOYER TO BARGAIN EXCLUSIVELY WITH U.A.W., ON THE
GROUND THAT PRIOR TO THE ISSUANCE OF THE ORDER PETITIONER HAD OBTAINED
AN OVERWHELMING MAJORITY OF THE PRODUCTION EMPLOYEES AND HAD SO
NOTIFIED THE BOARD.  PETITIONER MADE NO SHOWING AT THE HEARING THAT A
MAJORITY OF THE EMPLOYEES HAD SHIFTED TO IT AFTER THE EMPLOYER REFUSED
TO BARGAIN WITH U.A.W.  NOR DID IT SEEK LEAVE FROM THE COURT BELOW TO
ADDUCE SUCH ADDITIONAL EVIDENCE PURSUANT TO SEC. 10(E).  NEVERTHELESS
IT CONTENDS THAT THE BOARD ON RECEIPT OF THE NOTIFICATION SHOULD HAVE
ORDERED AN ELECTION OR AT LEAST HAVE MADE AN INVESTIGATION. 

WE AGREE WITH THE COURT BELOW THAT THE BOARD IN FAILING TO ACT ON
THIS REQUEST DID NOT COMMIT ERROR.  THIS WAS NOT A CERTIFICATION
PROCEEDING  FN6  UNDER SEC. 9(C); IT WAS AN UNFAIR LABOR PRACTICE
PROCEEDING UNDER SEC. 10.  WHERE AS A RESULT OF UNFAIR LABOR PRACTICES
A UNION CANNOT BE SAID TO REPRESENT AN UNCOERCED MAJORITY, THE BOARD
HAS THE POWER TO TAKE APPROPRIATE STEPS TO THE END THAT THE EFFECT OF
THOSE PRACTICES WILL BE DISSIPATED.  THAT NECESSARILY INVOLVES AN
EXERCISE OF DISCRETION ON THE PART OF THE BOARD - DISCRETION INVOLVING
AN EXPERT JUDGMENT AS TO WAYS AND MEANS OF PROTECTING THE FREEDOM OF
CHOICE GUARANTEED TO THE EMPLOYEES BY THE ACT.  IT IS FOR THE BOARD,
NOT THE COURTS, TO DETERMINE HOW THE EFFECT OF PRIOR UNFAIR LABOR
PRACTICES MAY BE EXPUNGED.  NATIONAL LABOR RELATIONS BOARD V.
PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, 271; NATIONAL LABOR
RELATIONS BOARD V. FALK CORP., 308 U.S. 453, 461.  IT CANNOT BE ASSUMED
THAT AN UNREMEDIED REFUSAL OF AN EMPLOYER TO BARGAIN COLLECTIVELY WITH
AN APPROPRIATE LABOR ORGANIZATION HAS NO EFFECT ON THE DEVELOPMENT OF
COLLECTIVE BARGAINING.  SEE NATIONAL LABOR RELATIONS BOARD V. PACIFIC
GREYHOUND LINES, 303 U.S. 272, 275.  NOR IS THE CONCLUSION UNJUSTIFIED
THAT UNLESS THE EFFECT OF THE UNFAIR LABOR PRACTICES IS COMPLETELY
DISSIPATED, THE EMPLOYEES MIGHT STILL BE SUBJECT TO IMPROPER RESTRAINTS
AND NOT HAVE THE COMPLETE FREEDOM OF CHOICE WHICH THE ACT
CONTEMPLATES.  HENCE THE FAILURE OF THE BOARD TO RECOGNIZE PETITIONER'S
NOTICE OF CHANGE WAS WHOLLY PROPER.  NATIONAL LABOR RELATIONS BOARD V.
BRADFORD DYEING ASSN., 310 U.S. 318, 339-340. 

SEC. 9 OF THE ACT PROVIDES ADEQUATE MACHINERY FOR DETERMINING IN
CERTIFICATION PROCEEDINGS QUESTIONS OF REPRESENTATION AFTER UNFAIR
LABOR PRACTICES HAVE BEEN REMOVED AS OBSTACLES TO THE EMPLOYEES' FULL
FREEDOM OF CHOICE.  AFFIRMED. 

FN1  PETITIONERS, LABOR ORGANIZATIONS AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR, ARE TREATED HEREIN IN THE SINGULAR. 

FN2  UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL NO. 459(HEREIN
CALLED U.A.W.)  IS AFFILIATED WITH THE CONGRESS OF INDUSTRIAL
ORGANIZATIONS (C.I.O.). 

FN3  SEC. 8(3) PROVIDES: 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER -  ... 

"(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, THAT NOTHING IN THIS
ACT, OR IN THE NATIONAL INDUSTRIAL RECOVERY ACT (U.S.C., SUPP. VII,
TITLE 15, SECS. 701-712), AS AMENDED FROM TIME TO TIME, OR IN ANY CODE
OR AGREEMENT APPROVED OR PRESCRIBED THEREUNDER, OR IN ANY OTHER STATUTE
OF THE UNITED STATES, SHALL PRECLUDE AN EMPLOYER FROM MAKING AN
AGREEMENT WITH A LABOR ORGANIZATION (NOT ESTABLISHED, MAINTAINED, OR
ASSISTED BY ANY ACTION DEFINED IN THIS ACT AS AN UNFAIR LABOR PRACTICE)
TO REQUIRE AS A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN, IF SUCH
LABOR ORGANIZATION IS THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED
IN SECTION 9(A), IN THE APPROPRIATE COLLECTIVE BARGAINING UNIT COVERED
BY SUCH AGREEMENT WHEN MADE." 

FN4  THE CONTRACT, THOUGH DATED AUGUST 6, 1937, WAS ACTUALLY EXECUTED
ON AUGUST 11, 1937. 

FN5  SEE CONSUMERS POWER CO. V. NATIONAL LABOR RELATIONS BOARD, 113
F.2D 38, 44.  CF. SWIFT & CO. V. NATIONAL LABOR RELATIONS BOARD, 106
F.2D 87, 93. 

FN6  U.A.W. DID IN FACT FILE A PETITION FOR CERTIFICATION UNDER SEC.
9(C).  BUT THIS WAS DISMISSED BY THE BOARD SINCE IT FOUND FOR REASONS
STATED THAT U.A.W. WAS THE APPROPRIATE BARGAINING UNIT. 
..END :









NEUBERGER V. COMMISSIONER, 311 U.S. 83 


NO. 5.  ARGUED OCTOBER 16, 17, 1940.  - DECIDED NOVEMBER 12, 1940.  -
104 F.2D 649, REVERSED. 


1.  UNDER SEC. 23(R)(1) OF THE REVENUE ACT OF 1932, A TAXPAYER'S
DISTRIBUTIVE SHARE OF PARTNERSHIP PROFITS DERIVED FROM SALES OR
EXCHANGES OF STOCKS AND BONDS THAT WERE NOT CAPITAL ASSETS (AS DEFINED
IN SEC. 101), IS A "GAIN" TO THE EXTENT OF WHICH HE IS ENTITLED TO A
DEDUCTION OF A LOSS SUSTAINED BY HIM IN SIMILAR TRANSACTIONS FOR HIS
INDIVIDUAL ACCOUNT.  P. 88. 

2.  THAT SECS. 184-188 OF THE REVENUE ACT OF 1932 ADVERT TO INSTANCES
IN WHICH PARTNERSHIP INCOME RETAINS ITS IDENTITY IN THE INDIVIDUAL
PARTNER'S RETURN, DOES NOT BY APPLICATION OF THE MAXIM EXPRESSIO UNIUS
EST EXCLUSIO ALTERIUS REQUIRE DISALLOWANCE OF THE DEDUCTION HERE
CLAIMED.  THE MAXIM IS NOT A RULE OF LAW BUT AN AID TO CONSTRUCTION,
AND MAY NOT OVERRIDE THE CLEAR INTENT OF CONGRESS.  P. 88. 

3.  WHERE THE INTENT OF CONGRESS IS PLAIN, THE SCOPE OF AN ACT MAY
NOT BE NARROWED BY ADMINISTRATIVE INTERPRETATION.  P. 89. 

4.  CASES VARIOUSLY EMPHASIZING THE CHARACTER OF PARTNERSHIPS AS
BUSINESS UNITS, OR AS ASSOCIATIONS OF INDIVIDUALS, BUT NOT INVOLVING
SEC. 23(R)(1), ARE OF LITTLE AID IN ASCERTAINING ITS MEANING.  P. 89. 

5.  THE FINDINGS OF THE BOARD OF TAX APPEALS IN THIS CASE SHOW THAT
THE ALLOWANCE OF A DEDUCTION OF THE AMOUNT CLAIMED WOULD NOT EXCEED THE
LIMIT PRESCRIBED BY SEC. 23(R)(1).  P. 89. 

6.  THE CONSTRUCTION HERE GIVEN SEC. 23(R)(1) IS CONSISTENT WITH THE
LEGISLATIVE HISTORY OF AMENDATORY LEGISLATION AS WELL AS THAT OF THE

7.  SHEARER V. BURNET, 285 U.S. 228, DISTINGUISHED.  P. 90. 

NEUBERGER V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 310 U.S. 655, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 37 B.T.A. 223, SUSTAINING THE DETERMINATION
OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A RESIDENT OF NEW YORK, WAS A MEMBER OF THE NEW YORK
STOCK EXCHANGE.  HE WAS ENGAGED IN THE BUSINESS OF TRADING IN
SECURITIES ON THE FLOOR OF THE EXCHANGE FOR THE PARTNERSHIP OF HILSON &
NEUBERGER, OF WHICH HE WAS A MEMBER, EXECUTING ORDERS ON BEHALF OF
CUSTOMERS OF THE PARTNERSHIP.  IN ADDITION HE MADE NUMEROUS PURCHASES
AND SALES OF SECURITIES FOR HIS OWN ACCOUNT. 

DURING THE YEAR 1932, THE ONE HERE IN QUESTION, HILSON & NEUBERGER
DERIVED A PROFIT OF $142,802.29 FROM THE SALE OF SECURITIES WHICH WERE
NOT CAPITAL ASSETS AS DEFINED IN SEC. 101 OF THE REVENUE ACT OF 1932. 
47 STAT. 169, 191.  THE FIRM HAD OTHER INCOME OF $170,830.65 AND
DEDUCTIONS OF $203,981.78, OR NET INCOME OF $109,651.16.  PETITIONER'S
DISTRIBUTIVE SHARE WAS $44,158.55.  DURING THE SAME YEAR PETITIONER
SUSTAINED A NET LOSS OF $25,588.93 ON HIS PRIVATE TRANSACTIONS IN
STOCKS AND BONDS WHICH WERE NOT CAPITAL ASSETS AS DEFINED IN SEC. 101. 

IN HIS INCOME TAX RETURN FOR THE YEAR 1932 PETITIONER DEDUCTED FROM
GROSS INCOME THE LOSS OF $25,588.93.  THE COMMISSIONER DISALLOWED THE
DEDUCTION AND ASSESSED A DEFICIENCY.  THE BOARD OF TAX APPEALS UPHELD
THE ACTION OF THE COMMISSIONER.  37 B.T.A. 223.  ON APPEAL THE SECOND
CIRCUIT COURT OF APPEALS AFFIRMED.  104 F.2D 649.  BECAUSE OF
SUBSTANTIAL CONFLICT WITH JENNINGS V. COMMISSIONER, 110 F.2D 945, AND
CRAIK V. UNITED STATES, 31 F.SUPP.  132, WE GRANTED CERTIORARI LIMITED
TO THE QUESTIONS WHETHER SEC. 23(R)(1) OF THE REVENUE ACT OF 1932, 47
STAT. 169, 183, AUTHORIZED THE CLAIMED DEDUCTION, AND WHETHER, IN THE
EVENT THAT IT DID NOT, THE STATUTE AS SO CONSTRUED WAS CONSTITUTIONAL. 
310 U.S. 655. 

DEDUCTIONS FROM GROSS INCOME.  SECTION 23(R)(1) PROVIDES: 

"LOSSES FROM SALES OR EXCHANGES OF STOCKS AND BONDS (AS DEFINED IN
SUBSECTION (T) OF THIS SECTION) WHICH ARE NOT CAPITAL ASSETS (AS
DEFINED IN SECTION 101) SHALL BE ALLOWED (AS DEDUCTIONS FROM GROSS
INCOME) ONLY TO THE EXTENT OF THE GAINS FROM SUCH SALES OR EXCHANGES
..." 

THE BASIC AND NARROW QUESTION IS WHETHER, IN COMPUTING THE INCOME OF
AN INDIVIDUAL PARTNER, THE WORD "GAINS" IN SEC. 23(R)(1) INCLUDES GAINS
FROM SALES OR EXCHANGES OF PARTNERSHIP STOCKS AND BONDS WHICH ARE NOT
CAPITAL ASSETS AS DEFINED IN SEC. 101.  WE ARE OF OPINION THAT IT
DOES. 

IN COMPUTING GROSS INCOME PRIOR TO THE REVENUE ACT OF 1932, SUBJECT
TO CERTAIN LIMITATIONS A TAXPAYER WAS ENTITLED TO DEDUCT THE FULL
AMOUNT OF HIS LOSSES FROM TRANSACTIONS IN SECURITIES.  REVENUE ACT OF
1928, SECS. 23(E), 23(G), 101(B), 113.  BUT THE GROWING CUSTOM OF
DIMINISHING ORDINARY INCOME BY DEDUCTING LOSSES REALIZED ON THE SALE OF
SECURITIES WHICH HAD SHRUNK IN VALUE, DUE NO DOUBT TO THE FALL IN
PRICES AFTER 1929, LED CONGRESS TO PROVIDE IN SEC. 23(R)(1) THAT
DEDUCTIONS FOR SUCH LOSSES SHOULD BE LIMITED TO GAINS FROM SIMILAR
TRANSACTIONS. 

THAT THIS WAS THE PURPOSE AND THE ONLY PURPOSE OF SEC. 23(R)(1)
ABUNDANTLY APPEARS FROM THE REPORT OF THE SENATE FINANCE COMMITTEE
ACCOMPANYING THE BILL.  FN1  NOWHERE DOES THERE APPEAR ANY INTENTION TO
DENY TO A TAXPAYER WHO CHOOSES TO EXECUTE PART OF HIS SECURITY
TRANSACTIONS IN PARTNERSHIP WITH ANOTHER THE RIGHT TO DEDUCTIONS WHICH
PLAINLY WOULD BE AVAILABLE TO HIM IF HE HAD EXECUTED ALL OF THEM
SINGLY.  NOWHERE IS THERE ANY SUGGESTION THAT CONGRESS INTENDED TO TAX
NONCAPITAL SECURITY GAINS UNTIL THEY EXCEEDED SIMILAR LOSSES.  THE
LANGUAGE OF SEC. 23(R)(1) DOES NOT REQUIRE SUCH A CONSTRUCTION.  NOR DO
THE AVAILABLE EVIDENCES OF CONGRESSIONAL INTENT INDICATE SUCH A
PURPOSE. 

RESPONDENT POINTS OUT, HOWEVER, THAT UNDER SECS. 181-189 OF THE
REVENUE ACT OF 1932, 47 STAT. 169, 222-223,  FN2  PARTNERSHIP INCOME IS
COMPUTED ON AN ENTITY BASIS, THAT ITEMS OF PARTNERSHIP GROSS INCOME DO
NOT APPEAR ON A PARTNER'S RETURN, THAT ONLY PARTNERSHIP NET INCOME IS
REFLECTED IN THE INDIVIDUAL PARTNER'S INCOME AND IS REPORTED ONLY IN
THE FORM OF A DISTRIBUTABLE OR DISTRIBUTED SHARE.  HE CONTENDS THAT
SINCE PARTNERSHIP INCOME IS COMPUTED IN THE SAME WAY AS AN INDIVIDUAL'S
THE DEDUCTION AFFORDED BY SEC. 23(R)(1) TO THE PARTNERSHIP IS A
DISTINCT PRIVILEGE NOT TO BE CONFUSED OR COMBINED WITH THAT AFFORDED TO
THE INDIVIDUAL.  THUS, HE ARGUES, THE DEDUCTION CLAIMED HERE IS
INCONSISTENT WITH THE GENERAL SCHEME CREATED FOR REPORTING PARTNERSHIP
INCOME AS WELL AS, IN EFFECT, A SECOND OR DOUBLE USE OF SEC. 23(R)(1). 

IT IS NOT TO BE DOUBTED THAT IN THE ENACTMENT OF SEC. 23(R)(1)
CONGRESS INTENDED NOT ONLY TO DEAL WITH INDIVIDUAL SECURITY GAINS AND
LOSSES, BUT ALSO TO PERMIT LOSSES SUFFERED IN PARTNERSHIP SECURITY
TRANSACTIONS TO BE APPLIED AGAINST PARTNERSHIP GAINS IN LIKE
TRANSACTIONS.  IT DOES NOT FOLLOW, HOWEVER, AND THE LANGUAGE OF THE
STATUTE DOES NOT PROVIDE, EITHER EXPRESSLY OR BY NECESSARY IMPLICATION,
THAT LOSSES SUSTAINED IN AN INDIVIDUAL CAPACITY MAY NOT BE SET OFF
AGAINST GAINS FROM IDENTICAL THOUGH DISTINCT PARTNERSHIP DEALINGS.  IF
THE INDIVIDUAL LOSSES ARE ACTUALLY INCURRED IN SIMILAR TRANSACTIONS IT
CANNOT JUSTLY BE SAID THAT THE SAME DEDUCTION IS TAKEN A SECOND TIME,
OR THAT THE REAL PURPOSE OF THE STATUTE, WHICH IS ULTIMATELY TO TAX THE
NET INCOME OF THE INDIVIDUAL PARTNER, WOULD THEREBY BE IMPAIRED. 

PROVIDE GENERALLY FOR COMPUTATION AND REPORTING OF PARTNERSHIP INCOME. 
IN REQUIRING A PARTNERSHIP INFORMATIONAL RETURN ALTHOUGH ONLY
INDIVIDUAL PARTNERS PAY ANY TAX, CONGRESS RECOGNIZED THE PARTNERSHIP
BOTH AS A BUSINESS UNIT AND AS AN ASSOCIATION OF INDIVIDUALS.  THIS
WEAKENS RATHER THAN STRENGTHENS RESPONDENT'S ARGUMENT THAT THE
PRIVILEGES ARE DISTINCT OR THAT THE UNIT CHARACTERISTICS OF THE
PARTNERSHIP MUST BE EMPHASIZED.  COMPARE JENNINGS V. COMMISSIONER, 110
F.2D 945; CRAIK V. UNITED STATES, 31 F.SUPP.  132; UNITED STATES V.
COULBY, 251 F. 982(AFFIRMED, 258 F. 27).  NOR IS THE DEDUCTION CLAIMED
HERE PRECLUDED BECAUSE CONGRESS, IN SECS. 184-188, HAS PARTICULARIZED
INSTANCES WHERE PARTNERSHIP INCOME RETAINS ITS IDENTITY IN THE
INDIVIDUAL PARTNER'S RETURN.  THE MAXIM EXPRESSIO UNIUS EST EXCLUSIO
ALTERIUS IS AN AID TO CONSTRUCTION, NOT A RULE OF LAW.  IT CAN NEVER
OVERRIDE CLEAR AND CONTRARY EVIDENCES OF CONGRESSIONAL INTENT.  UNITED
STATES V. BARNES, 222 U.S. 513. 

IT IS TRUE THAT THE TREASURY DEPARTMENT ADOPTED A CONTRARY POSITION
AND DENIED THE CLAIMED DEDUCTION.  G.C.M. 14012, XIV-1 CUM. BULL.  145;
I.T. 2892, XIV-1 CUM. BULL.  148.  UNDER DIFFERENT CIRCUMSTANCES GREAT
WEIGHT HAS BEEN ATTACHED TO ADMINISTRATIVE PRACTICE AND TREASURY
RULINGS, BUT BEYOND QUESTION THEY CANNOT NARROW THE SCOPE OF A STATUTE
WHEN CONGRESS PLAINLY HAS INTENDED OTHERWISE.  RASQUIN V. HUMPHREYS,
308 U.S. 54; NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, 288 U.S.
294. 

IT IS TRUE, TOO, THAT IN SOME CASES THE CHARACTERISTICS OF
PARTNERSHIPS AS BUSINESS UNITS HAVE BEEN EMPHASIZED, FORRES V.
COMMISSIONER, 25 B.T.A. 154; WILSON V. COMMISSIONER, 17 B.T.A.
976(APPEAL DISMISSED, 55 F.2D 1086); BURNS V. COMMISSIONER, 12 B.T.A.
1209; APPEAL OF MENKEN, 8 B.T.A. 1062, WHILE IN OTHERS THE
CHARACTERISTICS OF PARTNERSHIPS AS ASSOCIATIONS OF INDIVIDUALS HAVE
BEEN STRESSED.  UNITED STATES V. COULBY, SUPRA.  COMPARE BENCE V.
UNITED STATES, 18 F.SUPP.  848.  THESE CASES, NOT DECIDED UNDER THE
REVENUE ACT OF 1932, AND TURNING, AS THEY MUST, ON THEIR OWN PECULIAR
FACTS, ARE LITTLE AID IN ASCERTAINING THE EFFECT TO BE GIVEN TO SEC.
23(R)(1). 

IT IS NOT TRUE, HOWEVER, AS RESPONDENT ARGUES, THAT THE ASSERTED
DEDUCTION CANNOT BE ALLOWED BECAUSE PETITIONER HAS SUGGESTED NO WAY TO
CALCULATE IT PROPERLY OR TO IMPORT ITEMS OF GROSS INCOME FROM THE
PARTNERSHIP INFORMATIONAL RETURN.  THE BOARD OF TAX APPEALS EXPRESSLY
FOUND THE AMOUNT OF PARTNERSHIP GAINS FROM SECURITY TRANSACTIONS AND
THE PROPORTION IN WHICH PETITIONER WAS TO SHARE IN THE PROFITS OF THE
PARTNERSHIP.  37 B.T.A. 223, 224.  SINCE PETITIONER'S SHARE OF THESE
NONCAPITAL SECURITY GAINS IS GREATER THAN HIS LOSS OF $25,588.93, THE
LIMIT ON DEDUCTIONS SET BY SEC. 23(R)(1) IS NOT EXCEEDED. 

OUR CONCLUSION THAT THIS IS THE PROPER CONSTRUCTION OF SEC. 23(R)(1)
IS CONFIRMED BY THE ACTION OF CONGRESS SINCE 1932.  IN 1933 CONGRESS
AMENDED SEC. 182(A) OF THE REVENUE ACT OF 1932 TO DENY TO INDIVIDUAL
PARTNERS DEDUCTIONS FOR PARTNERSHIP LOSSES WHICH HAD BEEN DISALLOWED IN
THE PARTNERSHIP RETURN, THE CONVERSE OF THE INSTANT CASE.  48 STAT.
195, 209.  FN3  MORE SIGNIFICANTLY, IN 1938, AFTER THE TREASURY
DEPARTMENT HAD RULED TO THE CONTRARY, G.C.M. 14012, XIV-1 CUM. BULL. 
145; I.T. 2892, XIV-1 CUM. BULL.  148, CONGRESS EXPRESSLY PROVIDED FOR
THE DEDUCTION OF INDIVIDUAL SECURITY LOSSES FROM SIMILAR PARTNERSHIP
GAINS.  REVENUE ACT OF 1938, SECS. 182-183; 52 STAT. 447, 521.  FN4
THAT THE AMENDMENT OF 1933 CHANGED AND THE REVENUE ACT OF 1938 RESTORED
THE LAW OF 1932 AS WE HAVE EXPLAINED IT IS PLAIN FROM THE LEGISLATIVE
HISTORY OF THE TWO ACTS AND OF SEC. 23(R)(1). 

SHEARER V. BURNET, 285 U.S. 228, IS NOT CONTRARY TO THE CONCLUSION WE
REACH HERE.  THERE THE DECISION TURNED ON THE PROPER CONSTRUCTION TO BE
GIVEN TO SEC. 218(A) OF THE REVENUE ACT OF 1924, 43 STAT. 253, 275, AND
THE COURT CORRECTLY CONCLUDED THAT CONGRESS HAD NOT INTENDED TO ALLOW
THE ASSERTED CREDIT. 

WE CONCLUDE THAT PETITIONER IS ENTITLED TO THE DEDUCTION.  THE
DECISION OF THE SECOND CIRCUIT COURT OF APPEALS IS REVERSED, AND THE
CASE IS REMANDED WITH DIRECTIONS TO REMAND TO THE BOARD OF TAX APPEALS
FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  REPORT OF SENATE FINANCE COMMITTEE (72D CONGRESS, 1ST SESS.),
NUMBER 665, P. 10: 

"YOUR COMMITTEE BELIEVES THAT SECURITY GAINS AND LOSSES SHOULD BE
SEGREGATED, THAT SECURITY LOSSES SHOULD BE DEDUCTED SOLELY FROM
SECURITY GAINS; BUT THAT SECURITY GAINS SHOULD NOT BE TAXED UNTIL THEY
ACTUALLY EXCEED SECURITY LOSSES." 

SEE ALSO REPORT OF HOUSE WAYS AND MEANS COMMITTEE (72D CONGRESS, 1ST
SESS.), NUMBER 708, PP. 12-13: 

"THERE ARE NO PROVISIONS IN EXISTING LAW CORRESPONDING TO SECTION
23(R),  ...  MANY TAXPAYERS HAVE BEEN COMPLETELY OR PARTIALLY
ELIMINATING FROM TAX THEIR INCOME FROM SALARIES, DIVIDENDS, RENTS,
ETC., BY DEDUCTING THEREFROM LOSSES SUSTAINED IN THE STOCK AND BOND
MARKETS, WITH SERIOUS EFFECT UPON THE REVENUE.  YOUR COMMITTEE IS OF
THE OPINION THAT SOME LIMITATION OUGHT TO BE PLACED ON THE ALLOWANCE OF
SUCH LOSSES." 

FN2  SEC. 181.  INDIVIDUALS CARRYING ON BUSINESS IN PARTNERSHIP SHALL
BE LIABLE FOR INCOME TAX ONLY IN THEIR INDIVIDUAL CAPACITY. 

SEC. 182.  (A)  THERE SHALL BE INCLUDED IN COMPUTING THE NET INCOME
OF EACH PARTNER HIS DISTRIBUTIVE SHARE, WHETHER DISTRIBUTED OR NOT, OF
THE NET INCOME OF THE PARTNERSHIP FOR THE TAXABLE YEAR. 

(B)  ... 

SEC. 183.  THE NET INCOME OF THE PARTNERSHIP SHALL BE COMPUTED IN THE
SAME MANNER AND ON THE SAME BASIS AS IN THE CASE OF AN INDIVIDUAL,
EXCEPT THAT THE SO-CALLED "CHARITABLE CONTRIBUTION" DEDUCTION PROVIDED
IN SECTION 23(N) SHALL NOT BE ALLOWED. 

SEC. 184.  THE PARTNER SHALL, FOR THE PURPOSE OF THE NORMAL TAX, BE
ALLOWED AS A CREDIT AGAINST HIS NET INCOME, IN ADDITION TO THE CREDITS
ALLOWED TO HIM UNDER SECTION 25, HIS PROPORTIONATE SHARE OF SUCH
AMOUNTS OF DIVIDENDS AND INTEREST SPECIFIED IN SECTION 25(A) AND (B) AS
ARE RECEIVED BY THE PARTNERSHIP. 

SEC. 185.  IN THE CASE OF THE MEMBERS OF A PARTNERSHIP THE PROPER
PART OF EACH SHARE OF THE NET INCOME WHICH CONSISTS OF EARNED INCOME
SHALL BE DETERMINED UNDER RULES AND REGULATIONS TO BE PRESCRIBED BY THE
COMMISSIONER WITH THE APPROVAL OF THE SECRETARY AND SHALL BE SEPARATELY
SHOWN IN THE RETURN OF THE PARTNERSHIP AND SHALL BE TAXED TO THE MEMBER
AS PROVIDED IN THIS SUPPLEMENT. 

SEC. 186.  IN THE CASE OF THE MEMBERS OF A PARTNERSHIP THE PROPER
PART OF EACH SHARE OF THE NET INCOME WHICH CONSISTS, RESPECTIVELY, OF
ORDINARY NET INCOME, CAPITAL NET GAIN, OR CAPITAL NET LOSS, SHALL BE
DETERMINED UNDER THE RULES AND REGULATIONS TO BE PRESCRIBED BY THE
COMMISSIONER WITH THE APPROVAL OF THE SECRETARY, AND SHALL BE
SEPARATELY SHOWN IN THE RETURN OF THE PARTNERSHIP AND SHALL BE TAXED TO
THE MEMBER AS PROVIDED IN THIS SUPPLEMENT, BUT AT THE RATES AND IN THE
MANNER PROVIDED IN SECTION 101(A) AND (B), RELATING TO CAPITAL NET
GAINS AND LOSSES. 

SEC. 187.  THE BENEFIT OF THE SPECIAL DEDUCTION FOR NET LOSSES
ALLOWED BY SECTION 117 SHALL BE ALLOWED TO THE MEMBERS OF A PARTNERSHIP
UNDER REGULATIONS PRESCRIBED BY THE COMMISSIONER WITH THE APPROVAL OF
THE SECRETARY. 

SEC. 188.  THE AMOUNT OF INCOME, WAR-PROFITS, AND EXCESS-PROFITS
TAXES IMPOSED BY FOREIGN COUNTRIES OR POSSESSIONS OF THE UNITED STATES
SHALL BE ALLOWED AS A CREDIT AGAINST THE TAX OF THE MEMBER OF A
PARTNERSHIP TO THE EXTENT PROVIDED IN SECTION 131.    SEC. 189.  EVERY
PARTNERSHIP SHALL MAKE A RETURN FOR EACH TAXABLE YEAR, STATING
SPECIFICALLY THE ITEMS OF ITS GROSS INCOME AND THE DEDUCTIONS ALLOWED
BY THIS TITLE, AND SHALL INCLUDE IN THE RETURN THE NAMES AND ADDRESSES
OF THE INDIVIDUALS WHO WOULD BE ENTITLED TO SHARE IN THE NET INCOME IF
DISTRIBUTED AND THE AMOUNT OF THE DISTRIBUTIVE SHARE OF EACH
INDIVIDUAL.  THE RETURN SHALL BE SWORN TO BY ANY ONE OF THE PARTNERS. 

FN3  IN SENATE FINANCE COMMITTEE REPORT NUMBER 114(73RD CONGRESS, 1ST
SESS.) ACCOMPANYING THE BILL, IT IS STATED AT PAGE 7: 

"SUBSECTION (D) AMENDS THE PARTNERSHIP PROVISIONS OF EXISTING LAW. 
UNDER EXISTING LAW THE INDIVIDUAL MEMBERS OF A PARTNERSHIP ARE ENTITLED
TO REDUCE THEIR INDIVIDUAL NET INCOMES BY THEIR DISTRIBUTIVE SHARES OF
A NET LOSS INCURRED BY THE PARTNERSHIP." 

FN4  IN HOUSE WAYS AND MEANS COMMITTEE REPORT NUMBER 1860(75TH
CONGRESS, 3RD SESS.) ACCOMPANYING THE BILL, IT IS STATED AT PAGES 42
43: 

"THE METHOD OF TREATMENT PROVIDED IN THESE SECTIONS OF THE BILL IS A
LOGICAL COROLLARY OF THE PRINCIPLE THAT ONLY THE PARTNERS AS
INDIVIDUALS, NOT THE PARTNERSHIP AS AN ENTITY, ARE TAXABLE PERSONS AND
IS NECESSARY TO GIVE THE PARTNERS AS INDIVIDUALS THE BENEFIT OF THE
ALTERNATIVE TAX IN THE CASE OF NET LONG-TERM CAPITAL GAINS, PROVIDED IN
EXCHANGE OF PARTNERSHIP CAPITAL ASSETS.  IT SHOULD BE NOTED THAT THIS
METHOD INVOLVES A DEPARTURE FROM THE PRINCIPLE ADOPTED IN THE REVENUE
ACTS OF 1934 AND 1936  ..." 

MR. JUSTICE ROBERTS, MR. JUSTICE BLACK, AND MR. JUSTICE DOUGLAS ARE
OF OPINION THAT THE JUDGMENT SHOULD BE AFFIRMED. 
..END :









CONTINENTAL CO. V. TENNESSEE, 311 U.S. 5 


NO. 117.  DECIDED OCTOBER 21, 1940.  - 176 TENN. 1 - 137 S.W.2D 277 -
138 ID. 447, DISMISSED. 


WHERE A STATE STATUTE IMPOSES UPON A FOREIGN INSURANCE COMPANY FOR THE
PRIVILEGE OF ENTERING THE STATE AND DOING LOCAL BUSINESS A LICENSE TAX
MEASURED BY A PERCENTAGE OF THE PREMIUMS THAT WILL ACCRUE AND BE PAID
TO IT ON POLICIES ISSUED IN THE STATE, THROUGHOUT THE LIVES OF SUCH
POLICIES, THE STATE MAY, CONSISTENTLY WITH DUE PROCESS, CONTINUE TO
COLLECT SUCH PERCENTAGE ON PREMIUMS WHICH ACCRUE FROM SUCH POLICIES
AFTER THE COMPANY'S WITHDRAWAL FROM THE STATE, AND WHICH ARE PAID TO IT
AT ITS OFFICE IN ANOTHER STATE.  P. 6. 

CONTINENTAL ASSURANCE CO. V. TENNESSEE. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

APPEAL FROM THE AFFIRMANCE OF A DECREE OF THE COURT OF CHANCERY OF
DAVIDSON COUNTY, TENNESSEE, SUSTAINING THE RIGHT OF THE STATE TO
COLLECT FROM THE ASSURANCE COMPANY 2 1/2% OF PREMIUMS PAID TO IT BY
RESIDENTS OF TENNESSEE AFTER ITS WITHDRAWAL FROM THE STATE.  THE CASE
CAME BEFORE THIS COURT ON THE APPELLANT'S JURISDICTIONAL STATEMENT AND
THE APPELLEE'S STATEMENT IN OPPOSITION. 

PER CURIAM. 

THE STATE OF TENNESSEE BROUGHT THIS SUIT TO ENFORCE PAYMENT OF
PRIVILEGE TAXES MEASURED BY PREMIUMS ON POLICIES OF INSURANCE ISSUED
WHILE APPELLANT WAS DOING BUSINESS WITHIN THE STATE, BUT UPON WHICH THE
PREMIUMS WERE PAID AFTER ITS WITHDRAWAL FROM THE STATE.  APPELLANT
CONTENDED THAT SINCE ITS WITHDRAWAL IT HAD TRANSACTED NO BUSINESS
WITHIN THE STATE; THAT THE POLICYHOLDERS THERE HAD MAILED THEIR
PREMIUMS ON UNMATURED POLICIES TO THE HOME OFFICE OF APPELLANT IN
ANOTHER STATE; AND THAT TO HOLD IT LIABLE FOR THE TAXES DEMANDED WOULD
DEPRIVE IT OF ITS PROPERTY IN VIOLATION OF THE FOURTEENTH AMENDMENT OF
THE CONSTITUTION OF THE UNITED STATES. 

THE SUPREME COURT OF TENNESSEE SUSTAINED THE TAX.  IT CONSTRUED THE
STATUTORY PROVISIONS TO MEAN "THAT THE TAX IS LEVIED UPON THE RIGHT TO
DO BUSINESS IN THE STATE, MEASURED BY A PERCENTAGE OF ANNUAL PREMIUMS
TO THE EXCLUSION OF ALL OTHER TAXES, THE TAX ON THE ANNUAL PREMIUMS TO
BE PAID THROUGHOUT THE LIFE OF POLICIES ISSUED"; THAT THOUGH "MEASURED
BY TWO AND A HALF PER CENT OF PREMIUMS RECEIVED ON POLICIES ISSUED BY
THE COMPANY WHILE EXERCISING ITS LICENSE FROM THE STATE, THE TAX WAS
LEVIED UPON THE PRIVILEGE OF ENTERING THE STATE AND ENGAGING IN THE
INSURANCE BUSINESS, AND NOT UPON THE ANNUAL PREMIUMS"; AND THAT THE
APPELLANT "BY ITS COMPLIANCE WITH THE STATUTE ADOPTED AND AGREED TO THE
CONSTRUCTION WE HAVE GIVEN IT, AND CANNOT NOW REPUDIATE ITS
PROVISIONS."  137 S.W.2D 277. 

THIS CONSTRUCTION OF THE STATUTE DISTINGUISHES THE CASE FROM THAT OF
PROVIDENT SAVINGS & LIFE ASSURANCE SOCIETY V. KENTUCKY, 239 U.S. 103. 
THERE THE QUESTION UNDER THE STATUTE, AS IT HAD BEEN CONSTRUED BY THE
STATE COURT, WAS WHETHER THE INSURANCE COMPANY CONTINUED TO DO BUSINESS
WITHIN THE STATE FOR THE PERIOD UNDER CONSIDERATION, DESPITE THE FACT
THAT IT HAD WITHDRAWN FROM THE STATE, MERELY BECAUSE OF THE RECEIPT OF
PREMIUMS AFTER WITHDRAWAL.  THE TAX WAS NOT LAID UPON THE PRIVILEGE OF
DOING BUSINESS DURING THE PERIOD THAT THE COMPANY WAS ACTUALLY WITHIN
THE STATE, THE TAX ON THAT PRIVILEGE BEING MEASURED BY THE PREMIUMS
RECEIVED DURING THE LIFE OF THE POLICIES.  ID., PP. 110, 111.  THE
SUPREME COURT OF TENNESSEE EMPHASIZED THE POINT OF THIS DISTINCTION IN
ITS OPINION ON REHEARING.  138 S.W.2D 447.  COMPARE STATE V. INSURANCE
COMPANY, 106 TENN. 282, 333-335; 61 S.W. 75. 

THE APPEAL IS DISMISSED FOR THE WANT OF A SUBSTANTIAL FEDERAL
QUESTION.  DISMISSED. 
..END :






ARKANSAS V. TENNESSEE, 311 U.S. 1 


NO. 9, ORIGINAL.  IN EQUITY.  DECREE ENTERED OCTOBER 14, 1940. 


PRECIS-UNAVAILABLE 

ARKANSAS V. TENNESSEE* . 

*FOR THE OPINION IN THIS CASE, SEE 310 U.S. 563. 

                               DECREE. 

CAME ON THIS CAUSE TO BE HEARD UPON THE BILL OF COMPLAINT, THE ANSWER
AND CROSS-BILL OF THE DEFENDANT THERETO, THE REPLICATION OF THE
COMPLAINANT TO SUCH ANSWER AND CROSS-BILL, THE REPORT OF THE SPECIAL
MASTER HERETOFORE FILED IN THIS CAUSE, THE EXCEPTIONS FILED THERETO BY
THE COMPLAINANT AND THE ARGUMENT OF THE PARTIES WHEN, AFTER
CONSIDERATION THEREOF, THE COURT DOTH ORDER, ADJUDGE AND DECREE AS
FOLLOWS:

        I. 

THAT THE EXCEPTIONS OF COMPLAINANT, STATE OF ARKANSAS, TO THE REPORT
OF THE SPECIAL MASTER HEREIN ARE HEREBY OVERRULED AND SAID REPORT IN
ALL THINGS IS CONFIRMED AND APPROVED. 

                                 II. 

THAT THE COMPLAINANT, STATE OF ARKANSAS, IS NOT ENTITLED TO RECOVER
OF THE DEFENDANT, STATE OF TENNESSEE, THE LANDS DESCRIBED IN COUNT I OF
THE COMPLAINANT'S BILL BUT THAT THE STATE OF TENNESSEE, UPON ITS ANSWER
AND CROSSBILL IS DECREED TO BE ENTITLED TO EXERCISE JURISDICTION
THEREOVER. 

III. 

THAT THE BOUNDARY BETWEEN THE STATE OF ARKANSAS AND STATE OF
TENNESSEE AT THE POINT OPPOSITE THE LANDS DESCRIBED IN COUNT I OF THE
BILL OF COMPLAINT IN THIS CAUSE IS HEREBY DECREED TO BE THE THALWEG OR
CHANNEL OF THE MISSISSIPPI RIVER AS THE SAME FLOWED ON OCTOBER 28,
1935, THE DATE OF THE FILING OF THE ORIGINAL BILL HEREIN. 

                                 IV. 

THAT THE FORMATION KNOWN AS BLUEGRASS TOWHEAD IS EXPRESSLY DECREED TO
BE UNDER THE JURISDICTION AND A PART OF THE STATE OF TENNESSEE. 

                                  V. 

THAT THE BOUNDARY LINE BETWEEN THE TWO STATES AT THE POINTS DESCRIBED
IN COUNT II OF THE BILL OF COMPLAINT IS HEREBY DECREED TO RUN AS
FOLLOWS: 

"BEGINNING AT A POINT IN THE MISSISSIPPI RIVER AT APPROXIMATE NORTH
LATITUDE 35-48-20, WEST LONGITUDE 89-44-12, SAID POINT BEING AT THE
MOUTH OF THE CHUTE OF SAID RIVER SEPARATING FORKED DEER ISLAND FROM
ISLAND 25; RUNNING THENCE THROUGH THE CENTER OF SAID CHUTE AS FOLLOWS: 

NORTH 74 DEGREES 15 MINUTES WEST 6500 FEET TO MONUMENT #1(NOT
PHYSICAL); THENCE NORTH 79 DEGREES 15 MINUTES WEST 2250 FEET TO
MONUMENT #2(NOT PHYSICAL); THENCE SOUTH 550 FEET TO MONUMENT #3 ON THE
BANK OF SAID CHUTE FROM WHICH: 

SOUTH 88 DEGREES 30 MINUTES EAST 21 FEET; 

SOUTH 37 DEGREES EAST 14 1/2 FEET, COTTONWOOD POINTERS:  THENCE SOUTH
72 DEGREES WEST 2400 FEET TO MONUMENT #4 FROM WHICH: 

SOUTH 59 DEGREES 45 MINUTES WEST 8 FEET; 

SOUTH 22 DEGREES 30 MINUTES EAST 7 FEET; 

NORTH 51 DEGREES EAST 5 FEET, COTTONWOOD POINTERS, BEING AT A "T"
CORNER OF PRESENT FENCE; THENCE SOUTH 72 DEGREES WEST FOLLOWING PRESENT
FENCE IN GENERAL 2761 FEET TO MONUMENT #5, FROM WHICH: 

NORTH 34 DEGREES EAST 10 FEET; 

SOUTH 25 DEGREES WEST 8 FEET; 

NORTH 16 DEGREES 30 MINUTES WEST 16 FEET; 

SOUTH 66 DEGREES 30 MINUTES WEST 15 FEET, COTTONWOOD POINTERS:
THENCE SOUTH 43 DEGREES 45 MINUTES WEST FOLLOWING PRESENT FENCE IN
GENERAL 2268 FEET TO MONUMENT #6, FROM WHICH: 

MISSISSIPPI RIVER COMMISSIONER'S BENCH MARK (FORKED DEER) BEARS SOUTH
57 DEGREES 15 MINUTES EAST 724 FEET; THENCE SOUTH 43 DEGREES 45 MINUTES
WEST FOLLOWING PRESENT FENCE IN GENERAL 3963 FEET TO MONUMENT #7 FROM
WHICH: 

NORTH 2 DEGREES 30 MINUTES EAST 4.5 FEET; 

NORTH 55 DEGREES 30 MINUTES WEST 12 FEET; 

SOUTH 52 DEGREES 30 MINUTES WEST 10 FEET; 

SOUTH 38 DEGREES 30 MINUTES WEST 14 FEET, COTTONWOOD POINTERS; THENCE
SOUTH 30 DEGREES 45 MINUTES WEST FOLLOWING PRESENT FENCE IN GENERAL
1400 FEET TO MONUMENT #8, FROM WHICH: 

SOUTH 63 DEGREES WEST 16 FEET; 

SOUTH 13 DEGREES 30 MINUTES EAST 17 FEET, COTTONWOOD POINTERS; THENCE
SOUTH 30 DEGREES 45 MINUTES WEST 500 FEET TO MONUMENT #9(NOT PHYSICAL)
IN THE CENTER OF THE CHUTE SEPARATING FORKED DEER ISLAND FROM THE
ARKANSAS MAIN SHORE; THENCE WITH THE CHUTE AS FOLLOWS: 

SOUTH 17 DEGREES 15 MINUTES EAST 2650 FEET TO MONUMENT #10(NOT
PHYSICAL); THENCE SOUTH 8 DEGREES 30 MINUTES WEST 800 FEET TO MONUMENT
#11(NOT PHYSICAL); THENCE SOUTH 23 DEGREES 30 MINUTES WEST 600 FEET TO
MONUMENT #12(NOT PHYSICAL); THENCE SOUTH 34 DEGREES 15 MINUTES WEST
1400 FEET TO MONUMENT #13(NOT PHYSICAL); THENCE SOUTH 50 DEGREES WEST
1200 FEET TO MONUMENT #14(NOT PHYSICAL) IN SAID CHUTE, AT APPROXIMATE
NORTH LATITUDE 35-46-21, WEST LONGITUDE 89-48-22. 

MAGNETIC VARIATION 5 DEGREES 15 MINUTES." 

                            VI. 

THAT W. H. GREEN OF COVINGTON, TENNESSEE, AND O. W. GAUSS OF OSCEOLA,
ARKANSAS, BE AND THEY ARE HEREBY APPOINTED COMMISSIONERS FOR THE
PURPOSE OF ESTABLISHING THE BOUNDARY ABOVE DESIGNATED IN CONNECTION
WITH THE LANDS DESCRIBED IN COUNT II.  THE COMMISSIONERS, AFTER FIRST
TAKING AN OATH TO FULLY AND IMPARTIALLY PERFORM THE DUTIES REQUIRED OF
THEM BY THIS DECREE, WILL GO UPON THE LANDS IN QUESTION AND DESIGNATE
THE BOUNDARY HEREIN FIXED BY THE ERECTION OF AT LEAST FOUR PERMANENT
STATION MONUMENTS OF CONCRETE OR OTHER DURABLE MATERIAL AT ANGLE POINTS
UPON THE LINE HEREIN DECREED TO BE THE TRUE BOUNDARY.  IN ADDITION
THERETO, THEY WILL ERECT FOUR MONUMENTS OF LIKE PERMANENT CHARACTER AT
POINTS DEEMED BY THEM TO BE NOT SUBJECT TO EROSION BY THE MISSISSIPPI
RIVER, AS REFERENCE MONUMENTS, TWO REFERRING TO EACH TERMINUS OF THE
LINE HEREIN DECREED, WHICH MONUMENTS SHALL BE FIXED BY APPROPRIATE
COURSES AND DISTANCES FROM THE TERMINAL POINTS OF THE LINE AS HEREIN
DECREED.  THE COMMISSIONERS HEREIN NAMED ARE AUTHORIZED TO PROCURE SUCH
ASSISTANCE AS MAY BE DEEMED NECESSARY BY THEM FOR THE EFFECTIVE
DISCHARGE OF THE FUNCTIONS HEREIN IMPOSED UPON THEM.  IN THE EVENT OF A
DISAGREEMENT BETWEEN THE TWO COMMISSIONERS, EITHER PARTY TO THE
LITIGATION MAY APPLY TO THE COURT, IF IN SESSION OR TO THE CHIEF
JUSTICE THEREOF IN VACATION, FOR THE APPOINTMENT OF A THIRD
COMMISSIONER. 

AFTER COMPLETING THEIR LABORS, THE COMMISSIONERS WILL FILE WITH THE
CLERK OF THIS COURT A REPORT SETTING FORTH THE PERFORMANCE OF THE
DUTIES AS HEREIN IMPOSED AND A SCHEDULE OF THEIR DISBURSEMENTS IN THE
PREMISES.  UPON APPLICATION TO THE CLERK OF THIS COURT, THE
COMMISSIONERS OR EITHER OF THEM WILL BE FURNISHED WITH A COPY OF THIS
DECREE AS THEIR AUTHORITY FOR THEIR ACTIONS IN THE PREMISES. 

ALL OTHER MATTERS ARE RESERVED UNTIL THE COMING IN OF THE REPORT OF
THE COMMISSIONERS. 
..END :










ARKANSAS V. TENNESSEE, 310 U.S. 563 


NO. 9, ORIGINAL.  ARGUED APRIL 23, 1940.  - DECIDED JUNE 3, 1940.  -
EXCEPTIONS OVERRULED - REPORT CONFIRMED - AND DECREE ORDERED. 


1.  LAND ON THE ARKANSAS SIDE OF THE MISSISSIPPI RIVER WAS CUT OFF BY
A SUDDEN CHANGE OF THE RIVER'S COURSE, IN 1821, AND BECAME ATTACHED TO
THE TENNESSEE SIDE.  HELD: 

(1)  THAT IT SUBSEQUENTLY BECAME A PART OF TENNESSEE AS THE RESULT OF
LONG AND CONTINUOUS EXERCISE BY THAT STATE OF DOMINION AND JURISDICTION
OVER IT WITH THE ACQUIESCENCE OF ARKANSAS.  P. 566. 

(2)  THAT AN ADDITION TO THIS AREA, CAUSED BY GRADUAL ACCRETION FROM
THE RIVER, WAS ALSO SUBJECT TO THE TENNESSEE JURISDICTION.  P. 572. 

2.  THE PRINCIPLE OF PRESCRIPTION AND ACQUIESCENCE IS APPLICABLE IN
THE DETERMINATION OF BOUNDARIES BETWEEN STATES.  P. 569. 

3.  THE RULE OF THE THALWEG RESTS UPON EQUITABLE CONSIDERATIONS AND
IS INTENDED TO SAFEGUARD TO EACH STATE EQUALITY OF ACCESS AND RIGHT OF
NAVIGATION IN THE STREAM.  THE RULE YIELDS TO THE DOCTRINE THAT A
BOUNDARY IS UNALTERED BY AN AVULSION; AND IN SUCH CASE, IN THE ABSENCE
OF PRESCRIPTION, THE BOUNDARY NO LONGER FOLLOWS THE THALWEG BUT REMAINS
AT THE ORIGINAL LINE.  P. 571. 

4.  THE DOCTRINE AS TO THE EFFECT OF AN AVULSION MAY BECOME
INAPPLICABLE WHEN IT IS ESTABLISHED THAT THERE HAS BEEN ACQUIESCENCE IN
A LONG-CONTINUED AND UNINTERRUPTED ASSERTION OF DOMINION AND
JURISDICTION OVER THE AREA AFFECTED.  P. 571. 

5.  THE QUESTION WHETHER A STATE HAS ACQUIRED POLITICAL JURISDICTION
BY PRESCRIPTION IS NOT AFFECTED BY THE CIRCUMSTANCE THAT THE TITLE TO
THE AREA IS IN THE UNITED STATES, SUCH TITLE NOT BEING DISPUTED.  P.
571. 

ARKANSAS V. TENNESSEE. 

UPON EXCEPTIONS TO THE REPORT OF A SPECIAL MASTER, APPOINTED IN AN
ORIGINAL BOUNDARY SUIT (301 U.S. 666) BETWEEN THE STATES OF ARKANSAS
AND TENNESSEE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE STATE OF ARKANSAS BROUGHT THIS SUIT AGAINST THE STATE OF
TENNESSEE SEEKING A DECREE DETERMINING THE TRUE BOUNDARY BETWEEN THE
STATES AT CERTAIN POINTS AND CONFIRMING THE JURISDICTION AND
SOVEREIGNTY OF THE STATE OF ARKANSAS OVER THE DESCRIBED TERRITORY. 

THE BILL OF COMPLAINT SET FORTH TWO COUNTS.  THE FIRST COUNT
PRESENTED THE CONTENTIONS OF ARKANSAS AS TO THE BOUNDARY IN RELATION TO
AN AREA KNOWN AS "NEEDHAM'S ISLAND," LATER AS "CUTOFF ISLAND" OR "MOSS
ISLAND," AND TO A CONTIGUOUS FORMATION KNOWN AS "BLUE GRASS TOWHEAD." 
THIS IS THE ONLY AREA WHICH REMAINS IN CONTROVERSY, AS THE PARTIES HAVE
AGREED BY STIPULATION UPON THE BOUNDARY LINE TO BE FIXED IN RELATION TO
THE LAND DESCRIBED IN THE SECOND COUNT. 

TENNESSEE ANSWERED, CONTESTING THE CLAIMS OF ARKANSAS AND ASSERTING
BY CROSS-BILL ITS JURISDICTION AND SOVEREIGNTY OVER THE TERRITORY IN
QUESTION. 

THE ISSUES WERE REFERRED TO MONTE M. LEMANN AS SPECIAL MASTER.  301
U.S. 666.  THE MASTER HAS FILED A CAREFUL AND COMPREHENSIVE REPORT
RECOMMENDING A DECREE IN FAVOR OF TENNESSEE AS TO THE AREA DESCRIBED IN
COUNT ONE, AND IN ACCORDANCE WITH THE STIPULATION AS TO THAT DESCRIBED
IN COUNT TWO.  THE CASE HAS BEEN HEARD UPON THAT REPORT AND THE
EXCEPTIONS FILED BY ARKANSAS. 

THE MASTER SET FORTH THE FOLLOWING FACTS AS AGREED UPON BY THE
PARTIES: 

"PRIOR TO 1821, THE LAND IN CONTROVERSY IN THIS SUIT WAS ON THE WEST
BANK OF THE MISSISSIPPI RIVER AND THE MAIN CHANNEL OF THE RIVER FLOWED
TO THE EAST THEREOF.  AT THE LOCATION INVOLVED IN THIS SUIT, THE RIVER
AT THAT TIME FLOWED AROUND A TWELVE MILE BEND CAUSED BY THE EXTENSION
OF A PENINSULA INTO THE RIVER FROM THE WESTERN SHORE.  IN 1821 AN
AVULSION TOOK PLACE IN THE COURSE OF THE RIVER OCCASIONED BY THE WATERS
CUTTING ACROSS THE NECK OF THIS PENINSULA AT A POINT WHERE IT HAD
BECOME ONLY HALF A MILE WIDE DUE TO CAVING OF THE RIVER BANKS.  AT THE
PRESENT TIME THE MAIN CHANNEL OF THE MISSISSIPPI RIVER FLOWS TO THE
WEST OF THE LANDS IN CONTROVERSY AND HAS SO FLOWED FOR MANY YEARS PRIOR
TO THE PRESENT.  THE ORIGINAL CHANNEL OF THE RIVER IS NOW, AND HAS FOR
MANY YEARS BEEN, FILLED UP SO THAT THE ISLAND ORIGINALLY CREATED BY THE
AVULSION IS NOW, AND HAS FOR MANY YEARS BEEN, PHYSICALLY CONNECTED TO,
AND A PART OF, THE EASTERN SHORE OF THE RIVER." 

AFTER A REVIEW OF THE EVIDENCE UPON POINTS IN DISPUTE, THE MASTER
MADE A SUMMARY OF HIS FINDINGS AND CONCLUSIONS AS FOLLOWS: 

"(1)  THE TERRITORY OF ARKANSAS WAS ORGANIZED BY ACT OF MARCH 2,
1819, 3 STAT. 493, BEING CARVED OUT OF THE TERRITORY OF MISSOURI, WHICH
WAS A PART OF THE LOUISIANA PURCHASE, AND THE EASTERN BOUNDARY OF THE
TERRITORY WAS THE MIDDLE OF THE MAIN CHANNEL OF THE MISSISSIPPI RIVER. 

"(2)  IN 1819 THE LANDS IN CONTROVERSY WERE ON THE WEST SIDE OF THE
MAIN CHANNEL OF THE RIVER AND WERE PART OF THE TERRITORY OF ARKANSAS. 

"(3)  THE AVULSION AT NEEDHAM'S CUTOFF OCCURRED IN 1821. 

"(4)  THE MAIN CHANNEL OF THE RIVER FLOWED THROUGH THE CUTOFF PRIOR
TO 1836. 

"(5)  ARKANSAS WAS ADMITTED INTO THE UNION ON JUNE 15, 1836, 5 STAT.
50, AND ITS EASTERN BOUNDARY WAS FIXED AT THE MIDDLE OF THE MAIN
CHANNEL OF THE MISSISSIPPI RIVER. 

"(6)  ON JUNE 15, 1836, WHEN ARKANSAS WAS ADMITTED INTO THE UNION,
THE LANDS IN CONTROVERSY WERE ON THE EAST SIDE OF THE MAIN CHANNEL OF
THE MISSISSIPPI RIVER. 

"(7)  THE AVULSION DID NOT CHANGE THE BOUNDARY LINE THERETOFORE
EXISTING BETWEEN TENNESSEE AND THE TERRITORY OF ARKANSAS. 

"(8)  THE ACT OF CONGRESS OF JUNE 15, 1836, ADMITTING ARKANSAS INTO
THE UNION, DID NOT HAVE THE EFFECT OF EXCLUDING FROM THE BOUNDARIES OF
THE STATE OF ARKANSAS LANDS WHICH IMMEDIATELY PRIOR TO THE ADOPTION OF
THE ACT WERE WITHIN THE TERRITORY OF ARKANSAS. 

"(9)  TENNESSEE WAS ADMITTED INTO THE UNION ON JUNE 1, 1796, 1 STAT.
491, C. 47.  ITS WESTERN BOUNDARY WAS THE MIDDLE OF THE MAIN CHANNEL OF
THE MISSISSIPPI RIVER.  THE LANDS IN CONTROVERSY WERE IN 1796 ON THE
WEST OF THE MAIN CHANNEL OF THE RIVER. 

"(10)  THE ACT OF JUNE 15, 1836, 5 STAT. 50, ADMITTING ARKANSAS INTO
THE UNION, DID NOT HAVE THE EFFECT OF ENLARGING THE BOUNDARIES OF
TENNESSEE. 

"(11)  FROM 1826 TO THE DATE OF THE FILING OF THIS SUIT, TENNESSEE
HAS CONTINUOUSLY EXERCISED DOMINION AND JURISDICTION OVER THE LANDS IN
CONTROVERSY. 

"(12)  ARKANSAS HAS ACQUIESCED IN TENNESSEE'S EXERCISE OF DOMINION
AND JURISDICTION. 

"(13)  THE LANDS DESCRIBED IN COUNT ONE OF THE COMPLAINT ARE NOW
WITHIN THE BOUNDARIES OF TENNESSEE AS A RESULT OF PRESCRIPTION.  BLUE
GRASS TOWHEAD, WHICH HAS BEEN FORMED BY GRADUAL PROCESSES AND IS
ATTACHED TO MOSS ISLAND, IS LIKEWISE NOW WITHIN THE BOUNDARIES OF
TENNESSEE." 

THE EXCEPTIONS OF ARKANSAS TO THE MASTER'S REPORT PRESENT FOR THE
MOST PART QUESTIONS OF LAW.  ARKANSAS CONTENDS THAT ITS TRUE EASTERN
BOUNDARY AT THE PLACE IN CONTROVERSY WAS DETERMINED BY THE RULE OF THE
THALWEG, BEING THE MIDDLE OF THE MAIN CHANNEL OF NAVIGATION OF THE
MISSISSIPPI RIVER AS IT EXISTED WHEN THE TREATY OF PEACE BETWEEN THE
UNITED STATES AND GREAT BRITAIN WAS CONCLUDED IN 1783, SUBJECT TO SUCH
SUBSEQUENT CHANGES AS OCCURRED THROUGH NATURAL AND GRADUAL PROCESSES. 
ARKANSAS V. TENNESSEE, 246 U.S. 158; ARKANSAS V. MISSISSIPPI, 250 U.S.
39; ARKANSAS V. MISSISSIPPI, 252 U.S. 344.  THE MASTER SUPPORTS THAT
CONTENTION WITH RESPECT TO THE ORIGINAL BOUNDARY OF THE TERRITORY OF
ARKANSAS, AND ALSO THE CONTENTION THAT THE AVULSION OF 1821 DID NOT
CHANGE THE BOUNDARY LINE THERETOFORE EXISTING BETWEEN TENNESSEE AND THE
TERRITORY OF ARKANSAS; AND, FURTHER, THE MASTER HOLDS THAT THE ACT OF
1836 ADMITTING ARKANSAS INTO THE UNION DID NOT OPERATE TO EXCLUDE FROM
ITS BOUNDARIES THE LANDS WHICH IMMEDIATELY BEFORE WERE WITHIN THE
TERRITORY OF ARKANSAS OR TO ENLARGE THE BOUNDARIES OF TENNESSEE. 

DESPITE THESE CONCLUSIONS, THE MASTER IS OF THE OPINION THAT THE AREA
IN QUESTION SHOULD NOW BE DEEMED TO BE WITHIN THE BOUNDARIES OF
TENNESSEE BY VIRTUE OF PRESCRIPTION AND THE ACQUIESCENCE ON THE PART OF
ARKANSAS IN THE EXERCISE BY TENNESSEE OF DOMINION AND JURISDICTION OVER
THAT AREA.  UPON THAT QUESTION OF FACT, THE MASTER FOUND THAT TENNESSEE
HAD CONTINUOUSLY EXERCISED THAT DOMINION AND JURISDICTION FROM THE YEAR
1826 TO THE TIME OF THE BRINGING OF THE PRESENT SUIT.  IN SUPPORT OF
THIS FINDING, THE MASTER THUS SUMMARIZED THE EVIDENCE: 

"THE CONTEMPORARY EVIDENCE SHOWS THAT AS EARLY AS 1823 ENTRIES OF THE
LAND WERE BEING MADE UNDER THE AUTHORITY OF TENNESSEE AND SURVEYS WERE
MADE UNDER AUTHORITY OF TENNESSEE AS EARLY AS 1824.  WITNESSES SIXTY
FIVE, SEVENTY-EIGHT AND EIGHTY-FOUR YEARS OLD TESTIFIED BEFORE ME THAT
THE INHABITANTS OF THE ISLAND ALWAYS VOTED IN TENNESSEE ELECTIONS; WERE
TAXED BY TENNESSEE, MARRIED BY TENNESSEE JUSTICES OF THE PEACE,
REQUIRED TO DO ROAD WORK UNDER TENNESSEE AUTHORITY, EDUCATED UPON THE
ISLAND IN A SCHOOL OPERATED BY TENNESSEE.  THE RECORDS OF DYER COUNTY,
TENNESSEE, SHOWED THAT ASSESSMENTS ON THE LANDS IN CONTROVERSY FOR
LOCAL TAXES WERE MADE BY TENNESSEE AUTHORITIES AND LAND TAXES PAID TO
TENNESSEE AS FAR BACK AS 1870, PRIOR TO WHICH RECORDS ARE MISSING. 
TENNESSEE EXHIBIT 42 SHOWS A TAX SALE BY A TENNESSEE SHERIFF IN 1848
COVERING LANDS ON THE ISLAND.  THE BILL OF EXCEPTIONS IN THE CASE OF
MOSS V. GIBBS, SHOWS TESTIMONY IN THAT CASE THAT AS FAR BACK AS 1826
TENNESSEE ASSESSED THE LANDS ON THE CUTOFF ISLAND, COLLECTED THE TAXES
ON THEM AND SERVED PROCESS THERE.  THE OPINION OF THE SUPREME COURT OF
TENNESSEE IN MOSS V. GIBBS (1872) 57 TENN. 283 RECITES THESE FACTS AS
PROVEN THEREIN." 

THE MASTER ADDED THAT IF HE WAS MISTAKEN IN THINKING IT PROPER TO
CONSIDER THE DEPOSITIONS AND OPINION IN MOSS V. GIBBS AS AFFORDING
EVIDENCE IN THIS CASE, "THE TESTIMONY TAKEN BEFORE ME AND THE OTHER
DOCUMENTARY EVIDENCE, CONSISTING OF CERTIFIED COPIES OF ENTRIES,
SURVEYS AND PATENTS, IS, IN MY JUDGMENT, SUFFICIENT TO PROVE
TENNESSEE'S LONG AND UNINTERRUPTED EXERCISE OF DOMINION AND
JURISDICTION OVER THE LANDS IN CONTROVERSY." 

THE MASTER WAS EQUALLY EXPLICIT IN FINDING THAT THE RECORD SHOWED THE
ACQUIESCENCE OF ARKANSAS IN THIS ASSERTION OF DOMINION BY TENNESSEE. 
ON THIS POINT HIS REPORT STATES: 

"THERE IS NO SHOWING THAT ARKANSAS EVER ASSERTED ANY CLAIM TO THE
LAND IN CONTROVERSY PRIOR TO THE INSTITUTION OF THIS SUIT.  THE LANDS
WERE NEVER SURVEYED OR GRANTED BY ARKANSAS.  IN 1848 THE UNITED STATES
SURVEYOR OF PUBLIC LANDS IN ARKANSAS WROTE TO THE GENERAL LAND OFFICE
IN WASHINGTON THAT HE HAD BEEN CALLED UPON TO SURVEY THE LANDS ON THE
CUTOFF ISLAND.  HE RECEIVED A REPLY AUTHORIZING HIM TO PROCEED WITH THE
SURVEY OF THE ISLAND 'MORE ESPECIALLY IF IT IS NOT CLAIMED BY THE STATE
OF TENNESSEE.'  BUT NO SURVEY WAS EVER MADE.  ON OCTOBER 10TH, 1935,
APPLICATION WAS FILED WITH THE COMMISSIONER OF STATE LANDS OF ARKANSAS
FOR THE PURCHASE OF BLUE GRASS TOWHEAD, BUT NO ACTION WAS TAKEN
THEREON.  THE OPINION OF THE SUPREME COURT OF TENNESSEE IN MOSS V.
GIBBS, 57 TENN. 283, WAS PUBLISHED IN THE YEAR 1872 AND MADE THE CLAIMS
OF TENNESSEE A MATTER OF PUBLIC NOTORIETY." 

THERE WAS SLIGHT, IF ANY, CONTROVERSY AS TO THE FACTS UPON THE
HEARING AT THIS BAR.  THE FINDINGS OF THE MASTER WITH RESPECT TO THE
EXERCISE OF DOMINION AND JURISDICTION BY TENNESSEE AND AS TO THE
ACQUIESCENCE THEREIN OF ARKANSAS ARE FULLY SUPPORTED BY THE RECORD, AND
WE MUST DETERMINE THE CAUSE UPON THAT BASIS. 

THE CONTENTIONS OF ARKANSAS IN OPPOSITION TO THE APPLICATION OF THE
PRINCIPLE OF PRESCRIPTION AND ACQUIESCENCE IN DETERMINING THE BOUNDARY
BETWEEN STATES CANNOT BE SUSTAINED.  THAT PRINCIPLE HAS HAD REPEATED
RECOGNITION BY THIS COURT.  IN RHODE ISLAND V. MASSACHUSETTS, 4 HOW. 
591, 639, THE COURT SAID:  "NO HUMAN TRANSACTIONS ARE UNAFFECTED BY
TIME.  ITS INFLUENCE IS SEEN ON ALL THINGS SUBJECT TO CHANGE.  AND THIS
IS PECULIARLY THE CASE IN REGARD TO MATTERS WHICH REST IN MEMORY AND
WHICH CONSEQUENTLY FADE WITH THE LAPSE OF TIME, AND FALL WITH THE LIVES
OF INDIVIDUALS.  FOR THE SECURITY OF RIGHTS, WHETHER OF STATES OR
INDIVIDUALS, LONG POSSESSION UNDER A CLAIM OF TITLE IS PROTECTED.  AND
THERE IS NO CONTROVERSY IN WHICH THIS GREAT PRINCIPLE MAY BE INVOLVED
WITH GREATER JUSTICE AND PROPRIETY THAN IN A CASE OF DISPUTED
BOUNDARY."  APPLYING THIS PRINCIPLE IN INDIANA V. KENTUCKY, 136 U.S.
479, 510, TO THE LONG ACQUIESCENCE IN THE EXERCISE BY KENTUCKY OF
DOMINION AND JURISDICTION OVER THE LAND THERE IN CONTROVERSY, THE COURT
SAID:  "IT IS A PRINCIPLE OF PUBLIC LAW UNIVERSALLY RECOGNIZED, THAT
LONG ACQUIESCENCE IN THE POSSESSION OF TERRITORY AND IN THE EXERCISE OF
DOMINION AND SOVEREIGNTY OVER IT, IS CONCLUSIVE OF THE NATION'S TITLE
AND RIGHTFUL AUTHORITY."  AGAIN, IN LOUISIANA V. MISSISSIPPI, 202 U.S.
1, 53, THE COURT OBSERVED:  "THE QUESTION IS ONE OF BOUNDARY, AND THIS
COURT HAS MANY TIMES HELD THAT, AS BETWEEN THE STATES OF THE UNION,
LONG ACQUIESCENCE IN THE ASSERTION OF A PARTICULAR BOUNDARY AND THE
EXERCISE OF DOMINION AND SOVEREIGNTY OVER THE TERRITORY WITHIN IT,
SHOULD BE ACCEPTED AS CONCLUSIVE WHATEVER THE INTERNATIONAL RULE MIGHT
BE IN RESPECT OF THE ACQUISITION BY PRESCRIPTION OF LARGE TRACTS OF
COUNTRY CLAIMED BY BOTH."  SEE, ALSO, VIRGINIA V. TENNESSEE, 148 U.S.
503, 523; MARYLAND V. WEST VIRGINIA, 217 U.S. 1, 41-44; VERMONT V. NEW
HAMPSHIRE, 289 U.S. 593, 613. 

IN MICHIGAN V. WISCONSIN, 270 U.S. 295, 308, THE COURT THUS REFERRED
TO THE RECOGNITION OF THIS PRINCIPLE IN INTERNATIONAL LAW, SAYING:
"THAT RIGHTS OF THE CHARACTER HERE CLAIMED MAY BE ACQUIRED ON THE ONE
HAND AND LOST ON THE OTHER BY OPEN, LONG-CONTINUED AND UNINTERRUPTED
POSSESSION OF TERRITORY, IS A DOCTRINE NOT CONFINED TO INDIVIDUALS BUT
APPLICABLE TO SOVEREIGN NATIONS AS WELL, DIRECT UNITED STATES CABLE CO.
V. ANGLO-AMERICAN TELEGRAPH CO., (1877) L.R. 2 A.C. 394, 421; WHEATON,
INTERNATIONAL LAW, 5TH ENG. ED., 268-269; 1 MOORE, INTERNATIONAL LAW
DIGEST, 294 ET SEQ., AND, A FORTIORI, TO THE QUASI-SOVEREIGN STATES OF
THE UNION."  PRESCRIPTION IN INTERNATIONAL LAW, SAYS OPPENHEIM, MAY BE
DEFINED AS "THE ACQUISITION OF SOVEREIGNTY OVER A TERRITORY THROUGH
CONTINUOUS AND UNDISTURBED EXERCISE OF SOVEREIGNTY OVER IT DURING SUCH
A PERIOD AS IS NECESSARY TO CREATE UNDER THE INFLUENCE OF HISTORICAL
DEVELOPMENT THE GENERAL CONVICTION THAT THE PRESENT CONDITION OF THINGS
IS IN CONFORMITY WITH INTERNATIONAL ORDER."  AND THUS HE FINDS THAT
PRESCRIPTION IN INTERNATIONAL LAW "HAS THE SAME RATIONAL BASIS AS
PRESCRIPTION IN MUNICIPAL LAW - NAMELY, THE CREATION OF STABILITY OF
ORDER."  OPPENHEIM, INTERNATIONAL LAW, 5TH ED., PP. 455, 456.  SEE,
ALSO, HALL, INTERNATIONAL LAW, 8TH ED., PP. 143, 144; HYDE,
INTERNATIONAL LAW, SEC. 116. 

THIS PRINCIPLE OF PRESCRIPTION AND ACQUIESCENCE, WHEN THERE IS A
SUFFICIENT BASIS OF FACT FOR ITS APPLICATION, SO ESSENTIAL TO THE
"STABILITY OF ORDER" AS BETWEEN THE STATES OF THE UNION, IS IN NO WAY
DISREGARDED OR IMPAIRED BY OUR DECISIONS IN ARKANSAS V. TENNESSEE,
SUPRA, AND ARKANSAS V. MISSISSIPPI, SUPRA, UPON WHICH COUNSEL FOR
ARKANSAS RELY.  IN THOSE CASES THE EVIDENCE FELL SHORT OF THE PROOF OF
LONG ACQUIESCENCE WHICH WAS NECESSARY TO WARRANT THE APPLICATION OF THE
PRINCIPLE AND THERE WAS NO SUCH SHOWING OF ACTS OF DOMINION AND
JURISDICTION AS ARE SHOWN ON THE PART OF TENNESSEE IN THE INSTANT
CASE.    ON BEHALF OF ARKANSAS IT IS ARGUED THAT THE RULE OF THE
THALWEG IS OF SUCH DOMINATING CHARACTER THAT IT MEETS AND OVERTHROWS
THE DEFENSE OF PRESCRIPTION AND ACQUIESCENCE.  THAT POSITION IS
UNTENABLE.  THE RULE OF THE THALWEG RESTS UPON EQUITABLE CONSIDERATIONS
AND IS INTENDED TO SAFEGUARD TO EACH STATE EQUALITY OF ACCESS AND RIGHT
OF NAVIGATION IN THE STREAM.  IOWA V. ILLINOIS, 147 U.S. 1, 7, 8;
MINNESOTA V. WISCONSIN, 252 U.S. 273, 281, 282; WISCONSIN V. MICHIGAN,
295 U.S. 455, 461; NEW JERSEY V. DELAWARE, 291 U.S. 361, 380.  THE RULE
YIELDS TO THE DOCTRINE THAT A BOUNDARY IS UNALTERED BY AN AVULSION AND
IN SUCH CASE, IN THE ABSENCE OF PRESCRIPTION, THE BOUNDARY NO LONGER
FOLLOWS THE THALWEG BUT REMAINS AT THE ORIGINAL LINE ALTHOUGH NOW ON
DRY LAND BECAUSE THE OLD CHANNEL HAS FILLED UP.  NEBRASKA V. IOWA, 143
U.S. 359, 367; MISSOURI V. NEBRASKA, 196 U.S. 23, 36; ARKANSAS V.
TENNESSEE, SUPRA, PP. 173, 174.  AND, IN TURN, THE DOCTRINE AS TO THE
EFFECT OF AN AVULSION MAY BECOME INAPPLICABLE WHEN IT IS ESTABLISHED
THAT THERE HAS BEEN ACQUIESCENCE IN A LONG-CONTINUED AND UNINTERRUPTED
ASSERTION OF DOMINION AND JURISDICTION OVER A GIVEN AREA.  HERE THAT
FACT HAS BEEN ESTABLISHED AND THE ORIGINAL RULE OF THE THALWEG NO
LONGER APPLIES. 

THE CONTENTION IS ALSO PRESSED THAT THE DEFENSE OF PRESCRIPTION IS
UNAVAILABLE UPON THE GROUND THAT THE TITLE TO THE LAND IN CONTROVERSY
IS IN THE UNITED STATES; THAT THE LAND IS STILL UNSURVEYED LAND OF THE
UNITED STATES; AND, HENCE, THAT THE DEFENSE OF ADVERSE POSSESSION COULD
NOT BE GOOD AGAINST ARKANSAS AS SHE DID NOT HAVE TITLE.  BUT THE
QUESTION IN THIS SUIT IS NOT ONE OF TITLE TO PARTICULAR LAND BUT OF
BOUNDARIES AND OF POLITICAL JURISDICTION AS BETWEEN ARKANSAS AND
TENNESSEE.  TENNESSEE IS MAKING NO CLAIM AGAINST THE UNITED STATES.  NO
TITLE OF THE UNITED STATES TO LANDS WITHIN THE BOUNDARIES OF EITHER
STATE IS HERE IN QUESTION OR IS HERE DETERMINED.  THE RULING OF THE
MASTER IN OVERRULING THIS CONTENTION IS SUSTAINED. 

A SPECIAL POINT IS URGED AS TO THE AREA KNOWN AS "BLUE GRASS
TOWHEAD."  AS TO THIS AREA, THE MASTER FOUND: 

"BLUE GRASS TOWHEAD IS A FORMATION ADJOINING MOSS ISLAND (THE CUTOFF
ISLAND) ON THE WEST THEREOF, WHICH HAS BEEN FORMED SINCE THE YEAR 1916
BY THE GRADUAL PROCESSES OF THE RIVER AND IS NOW ATTACHED PHYSICALLY TO
THE EASTERN SHORE OF THE RIVER.  INSOFAR AS THIS FORMATION IS IN
CONTROVERSY IN THE PRESENT LITIGATION, I AM OF THE OPINION THAT IT ALSO
IS SUBJECT TO THE JURISDICTION OF TENNESSEE, AS IT WAS FORMED BY
GRADUAL PROCESSES AND IS ATTACHED TO MOSS ISLAND; SEE ARKANSAS V.
TENNESSEE, 246 U.S. 158, 173." 

IT SEEMS CLEAR THAT AS MOSS ISLAND BY PRESCRIPTION AND ACQUIESCENCE
MUST BE DEEMED TO BE PART OF THE TERRITORY SUBJECT TO THE JURISDICTION
OF TENNESSEE, THIS ADDITION BY GRADUAL PROCESSES SHOULD BE TREATED AS
PART OF MOSS ISLAND AND AS SUBJECT TO THE SAME JURISDICTION. 

THE EXCEPTIONS OF ARKANSAS TO THE MASTER'S REPORT ARE OVERRULED AND
THE REPORT IS IN ALL RESPECTS CONFIRMED.  DECREE WILL BE ENTERED
ACCORDINGLY, PROVIDING: 

(1)  THAT THE CLAIMS OF ARKANSAS TO THE LANDS DESCRIBED IN COUNT ONE
BE REJECTED AND THE CLAIMS OF TENNESSEE THERETO BE MAINTAINED, AND THAT
THE BOUNDARY LINE BETWEEN THE STATES AT THE POINT TO WHICH COUNT ONE
REFERS BE FIXED AT THE MIDDLE OF THE MAIN CHANNEL OF NAVIGATION IN THE
MISSISSIPPI RIVER AS IT EXISTED AT THE DATE OF THE FILING OF THE BILL
OF COMPLAINT HEREIN. 

(2)  THAT THE BOUNDARY BETWEEN ARKANSAS AND TENNESSEE AT THE POINT
DESCRIBED IN COUNT TWO OF THE BILL OF COMPLAINT BE FIXED IN ACCORDANCE
WITH THE STIPULATION ENTERED INTO BY THE PARTIES, AND THAT A
COMMISSIONER BE APPOINTED TO MARK THE BOUNDARY LINE AS SET OUT IN THE
STIPULATION BY PLACING THREE SUITABLE MARKERS ALONG THE LINE AND A
FOURTH ONE ON SUFFICIENTLY HIGH GROUND TO BE USED IN LOCATING THE OTHER
THREE IN THE EVENT THAT THEY SHOULD BE COVERED BY WATER, MOVED OR
DESTROYED. 

(3)  THAT COSTS BE EQUALLY DIVIDED BETWEEN THE STATES. 

DECREE MAY BE SETTLED ON NOTICE.  IT IS SO ORDERED. 
..END :











RAILROAD COMMISSION V. OIL CO., 310 U.S. 573 


NO. 681.  ARGUED APRIL 24, 25, 1940.  - DECIDED JUNE 3, 1940.  - 107
F.2D 70, REVERSED. 


AN ORDER OF A STATE COMMISSION FOR LIMITING AND PRORATING THE
PRODUCTION OF AN OIL FIELD, FIXED THE MAXIMUM ALLOWABLE TO ANY WELL AT
2.32% OF ITS "HOURLY POTENTIAL," BUT GAVE TO "MARGINAL" WELLS - THOSE
WHICH, IF THEIR LOW CAPACITY WERE CURTAILED, WOULD HAVE TO BE
PREMATURELY ABANDONED - A SPECIAL STATUS, ALLOWING EACH OF THEM
PRODUCTION UP TO TWENTY BARRELS PER DAY.  BECAUSE OF THE LARGE NUMBER
OF SUCH LOW-CAPACITY WELLS, APPROXIMATELY 385,000 BARRELS, OUT OF A
TOTAL DAILY "ALLOWABLE" OF 522,000 BARRELS FOR THE ENTIRE FIELD, WERE
EXEMPT FROM THE "HOURLY POTENTIAL" FORMULA.  A COMPANY WHOSE WELLS WERE
FAVORABLY SITUATED AND CAPABLE OF LARGE PRODUCTION, BUT WERE ALLOWED BY
THE FORMULA A DAILY PRODUCTION OF BUT TWENTY-TWO BARRELS EACH, CLAIMED
THAT THE REGULATION DISREGARDED ITS RIGHT TO THE OIL IN PLACE WITHIN
ITS GROUND; THAT IT PERMITTED OTHERS UNDUE OPPORTUNITY TO CAPTURE OIL
DRAINING FROM ITS GROUND; THAT THE "POTENTIAL" METHOD FAILED TO GIVE
SUFFICIENT WEIGHT TO RELEVANT FACTORS IN THE MEASUREMENT OF OIL IN
PLACE, ESPECIALLY TO THE DEPTH OF THE COMPANY'S RESERVES; THAT ONLY AN
ALLOCATION BASED UPON ACRE-FEET OF THE OIL SAND, OR ITS EQUIVALENT,
WOULD BE REASONABLE; THAT THE ORDER WAS, IN EFFECT, AN ALLOCATION ON A
FLAT PER-WELL BASIS, REGARDLESS OF GREAT VARIATION IN THE CAPACITY OF
WELLS AND THE DENSITY OF WELL DRILLING ON DIFFERENT TRACTS; THAT
EXCESSIVE DRILLINGS ALLOWED BY THE COMMISSION AS EXCEPTIONS TO ITS
GENERAL SPACING RULE, ENABLED DENSELY DRILLED TRACTS, BY VIRTUE OF THE
"MARGINAL" ALLOWANCES, TO DRAIN AWAY THE COMPANY'S RESERVES; AND THAT,
FOR THESE REASONS, THE COMPANY'S PROPERTY WAS TAKEN WITHOUT DUE PROCESS
OF LAW.  HELD: 

1.  THAT, IN VIEW OF THE DIFFICULTIES OF THE PROBLEM OF FAIR
ALLOCATION, THE SPECULATION INVOLVED IN AN APPROACH TO ITS SOLUTION,
AND THE SPECIAL FUNCTION OF THE COMMISSION, A FEDERAL COURT SHOULD NOT
UNDERTAKE TO DETERMINE IT UPON THE CONFLICTING TESTIMONY OF EXPERTS. 
P. 580. 

2.  IN A CONTROVERSY SUCH AS THIS, COURTS MUST NOT SUBSTITUTE THEIR
NOTIONS OF EXPEDIENCY AND FAIRNESS FOR THOSE WHICH HAVE GUIDED THE
AGENCIES TO WHOM THE FORMULATION AND EXECUTION OF POLICY HAVE BEEN
ENTRUSTED.  PP. 580-581. 

3.  WHETHER A SYSTEM OF PRORATION BASED UPON HOURLY POTENTIAL IS AS
FAIR AS ONE BASED UPON ESTIMATED RECOVERABLE RESERVES OR SOME OTHER
FACTOR OR COMBINATION OF FACTORS, IS IN ITSELF A QUESTION FOR
ADMINISTRATIVE AND NOT JUDICIAL JUDGMENT.  P. 581. 

IN A DOMAIN OF KNOWLEDGE STILL SHIFTING AND GROWING, AND IN A FIELD
WHERE JUDGMENT IS THEREFORE NECESSARILY BESET BY THE NECESSITY OF
INFERENCES BORDERING ON CONJECTURE EVEN FOR THOSE LEARNED IN THE ART,
IT WOULD BE PRESUMPTUOUS FOR COURTS, ON THE BASIS OF CONFLICTING EXPERT
TESTIMONY, TO DEEM THE VIEW OF THE ADMINISTRATIVE TRIBUNAL, ACTING
UNDER LEGISLATIVE AUTHORITY, OFFENSIVE TO THE FOURTEENTH AMENDMENT. 

4.  IN MAKING EXCEPTIONS TO ITS GENERAL SPACING RULE AND GENERAL
RESTRICTIVE PRODUCTION FORMULA, IN FAVOR OF SMALL, IRREGULARLY SHAPED
TRACTS THAT, OTHERWISE, MIGHT LOSE THEIR OIL BY FAILURE TO DRILL OR
INABILITY TO OPERATE AT A PROFIT, THE COMMISSION WAS ENTITLED TO TAKE
INTO ACCOUNT NOT ONLY THE INDIVIDUAL INTERESTS OF THESE SMALL OWNERS,
BUT ALSO EFFECTS ON THE STATE'S ECONOMY.  P. 582. 

5.  IT IS NOT FOR THE FEDERAL COURTS TO SUPPLANT THE COMMISSION'S
JUDGMENT EVEN IN THE FACE OF CONVINCING PROOF THAT A DIFFERENT RESULT
WOULD HAVE BEEN BETTER.  P. 583. 

RAILROAD COMMISSION OF TEXAS ET AL. V. ROWAN & NICHOLS OIL CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 309 U.S. 646, TO REVIEW THE AFFIRMANCE OF A DECREE (28
F.SUPP.  131) ENJOINING THE ENFORCEMENT OF AN OIL PRORATION ORDER. 

UNDER THE DECISIONS OF THE SUPREME COURT OF TEXAS, A LANDOWNER UNDER
PRORATION IS ENTITLED TO AN OPPORTUNITY TO RECOVER SUBSTANTIALLY THE
EQUIVALENT OF THE OIL AND GAS ORIGINALLY IN PLACE BENEATH HIS LAND. 

THE RESPONDENT FAILED TO ESTABLISH THAT IT IS BEING IRREPARABLY
INJURED BY THE ENFORCEMENT OF THE PRORATION ORDERS OF THE RAILROAD
COMMISSION, BECAUSE THE UNDISPUTED EVIDENCE SHOWS THAT THE RESPONDENT
HAS SUFFERED NO PHYSICAL DEPLETION OF ITS LEASE, AND HAS BENEFITED FROM
THE OPERATION OF THE PRORATION ORDERS UP TO THE PRESENT TIME. 

RESPONDENT FAILED TO ESTABLISH THAT IT WILL BE DEPRIVED, BY THE
ENFORCEMENT OF THE PRORATION ORDERS, OF THE OPPORTUNITY OF ULTIMATELY
RECOVERING FROM ITS LEASE AN AMOUNT OF OIL SUBSTANTIALLY EQUIVALENT TO
THE AMOUNT OF OIL ORIGINALLY IN PLACE BENEATH ITS LEASE. 

RESPONDENT IS WITHOUT STANDING TO ATTACK THE CONSTITUTIONALITY OF THE
PRORATION ORDERS, BECAUSE IT HAS BENEFITED FROM AND ACQUIESCED IN THE
ENFORCEMENT OF THE SAME METHOD OF PRORATION FOR OVER FIVE YEARS BEFORE
BRINGING A SUIT TO SET ASIDE SUCH ORDERS, DURING WHICH TIME PROPERTY
RIGHTS HAVE VESTED WHICH WOULD BE DESTROYED BY THE INVALIDATION OF SUCH
ORDERS. 

RESPONDENT FAILED TO ESTABLISH THAT THE MARGINAL OR MINIMUM ALLOWABLE
ASSIGNED TO EACH WELL IN THE EAST TEXAS FIELD IS NOT REASONABLY
NECESSARY IN ORDER TO PREVENT WASTE AND THE CONFISCATION OF PROPERTY. 

THE WELL-POTENTIAL METHOD IS THE BEST PRACTICAL MEANS OF ALLOCATING
THE ALLOWABLE PRODUCTION ACCORDING TO THE PRODUCTIVE CAPACITIES OF THE
WELLS AND, TOGETHER WITH THE SPACING RULES, GIVES FAIR CONSIDERATION TO
THE RECOVERABLE OIL UNDER EACH TRACT. 

PRORATING THE ALLOWABLE PRODUCTION IN PROPORTION TO THE RESERVES OF
OIL BENEATH EACH LEASE WOULD BE DISCRIMINATORY AND CONFISCATORY OF THE
PROPERTY OF MANY OPERATORS IN THE EAST TEXAS FIELD AND WOULD PERMIT
OPERATORS IN THE FAIRWAY TO RECOVER MUCH MORE THAN THE EQUIVALENT OF
THE OIL ORIGINALLY IN PLACE BENEATH THEIR LEASES. 

THE TEXAS RULE OF PROPERTY IS THAT THE OWNER OF LAND OWNS THE OIL AND
GAS BENEATH IT; THAT THE OWNER OF AN OIL AND GAS LEASE OWNS THE OIL AND
GAS IN PLACE BENEATH THE LAND AFFECTED BY THE LEASE. 

THE TEXAS LAW IS THAT UNDER PRORATION THE OWNER OF THE OIL AND GAS
ESTATE IN LAND IS ENTITLED TO "AN EQUAL OPPORTUNITY WITH ADJOINING
LEASEHOLDERS OF DEVELOPING AND REALIZING FOR HIS LEASEHOLD"; THAT HE IS
ENTITLED TO "A FAIR CHANCE TO RECOVER THE OIL AND GAS IN OR UNDER HIS
LAND, OR THEIR EQUIVALENT IN KIND"; THAT IS, HE IS ENTITLED TO AN
OPPORTUNITY "TO RECOVER A QUANTITY OF OIL AND GAS SUBSTANTIALLY
EQUIVALENT IN AMOUNT TO THE RECOVERABLE OIL AND GAS UNDER HIS LAND." 

THE REASONABLENESS OF THE POTENTIAL METHOD OF PRORATION IS NOT
MATERIAL BECAUSE THAT IS NOT THE METHOD HERE INVOLVED.  APPROXIMATELY
99 PER CENT OF THE FIELD "ALLOWABLE" WAS DIVIDED AMONG WELLS ON A BASIS
OF 20 BARRELS PER WELL.  SUCH A PER WELL BASIS OF PRORATION DOES NOT
RESULT IN A DISTRIBUTION OF THE FIELD ALLOWABLE ON A REASONABLE BASIS
AS IS REQUIRED BY LAW, AND IS ARBITRARY AND CONFISCATORY. 

THE METHOD OF PRORATION HERE ENFORCED WAS NOT NECESSARY TO PREVENT
WASTE; IT RESULTED IN UNNECESSARY AND UNREASONABLE DRAINAGE OF
RESPONDENT'S OIL BY OTHER OPERATORS AND PREVENTED RESPONDENT'S
CURRENTLY OR ULTIMATELY RECOVERING ITS FAIR SHARE OR PROPORTIONATE
SHARE OF THE RECOVERABLE OIL. 

RESPONDENT REPEATEDLY PROTESTED THE INEQUITIES AND UNREASONABLENESS
OF THE METHOD OF PRORATION HERE INVOLVED, AND THIS SUIT TO PROTECT ITS
PROPERTY FROM CONFISCATION WAS TIMELY. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS THE VALIDITY, WHEN CHALLENGED BY APPEAL TO
THE FOURTEENTH AMENDMENT, OF AN OIL PRORATION ORDER PROMULGATED BY THE
RAILROAD COMMISSION OF TEXAS, INSOFAR AS IT APPLIES TO THE RESPONDENT'S
WELLS. 

TO SAFEGUARD ITS OIL RESOURCES TEXAS HAS DEVISED A REGULATORY SCHEME
FOR THEIR PRODUCTION, AND HAS PLACED ITS ADMINISTRATION IN THE RAILROAD
COMMISSION'S HANDS.  REVISED CIVIL STATUTES, ARTS. 6014 ET SEQ. IN
CONFORMITY WITH THIS STATUTE, WHICH HAS FAMILIAR PROCEDURAL PROVISIONS,
THE COMMISSION IN THE FALL OF 1938 ISSUED THE ASSAILED PRORATION ORDER
COVERING THE EAST TEXAS OIL FIELD, WHERE RESPONDENT'S WELLS ARE
LOCATED.  BY THIS ORDER EACH WELL WAS ALLOWED TO PRODUCE 2.32% OF ITS
"HOURLY POTENTIAL" - THAT IS, 2.32% OF ITS HOURLY PRODUCTIVE CAPACITY
UNDER UNRESTRICTED FLOW.  BUT THE PRACTICAL OPERATION OF THIS ORDER WAS
LARGELY CUT ACROSS BY ALLOWANCES MADE TO "MARGINAL WELLS."  THESE ARE
WELLS WHICH, IF THEIR LOW PRODUCTIVE CAPACITY WERE LEGALLY CURTAILED,
WOULD HAVE TO BE PREMATURELY ABANDONED.  THEREFORE THE TEXAS STATUTE
GIVES THEM A SPECIAL STATUS.  IN ACCORD WITH ITS POLICY TOWARD THESE
MARGINAL WELLS, THE COMMISSION FREED THEM FROM THE BURDEN OF ITS HOURLY
POTENTIAL FORMULA BY ALLOWING THEM PRODUCTION UP TO TWENTY BARRELS A
DAY.  BECAUSE OF THE LARGE NUMBER OF THESE LOW CAPACITY UNITS IN THE
EAST TEXAS FIELD, APPROXIMATELY 385,000 BARRELS OUT OF A TOTAL DAILY
"ALLOWABLE" OF 522,000 BARRELS WERE EXEMPT FROM THE RESTRICTING
FORMULA, LEAVING ONLY ABOUT 136,000 FOR THE CLASS WITHIN WHICH
RESPONDENT'S WELLS FELL.  APPLICATION TO THEM OF THE HOURLY POTENTIAL
FORMULA RESULTED IN AN ALLOTMENT OF ONLY ABOUT TWENTY-TWO BARRELS A DAY
TO EACH WELL.  CLAIMING THAT SUCH A MODE OF REGULATION DISREGARDED ITS
RIGHT TO THE OIL IN PLACE BENEATH ITS LEASES, RESPONDENT SOUGHT AND
OBTAINED A DECREE FROM THE DISTRICT COURT FOR THE WESTERN DISTRICT OF
TEXAS ENJOINING THE COMMISSION FROM CARRYING ITS PRORATION PLAN INTO
EFFECT.  28 F.SUPP.  131.  WITH MODIFICATION NOT HERE RELEVANT THE
CIRCUIT COURT OF APPEALS AFFIRMED THE DECREE.  107 F.2D 70.  WE BROUGHT
THE CASE HERE BY CERTIORARI, 309 U.S. 646, BECAUSE OF THE IMPORTANCE OF
THE MATTER IN THE ADMINISTRATION OF THE TEXAS LAW AND KINDRED
CONSERVATION STATUTES. 

AS SUSTAINED BY THE FINDINGS OF THE DISTRICT COURT AND ACCEPTED BY
THE CIRCUIT COURT OF APPEALS, RESPONDENT'S CLAIMS MAY BE SUMMARIZED BY
WHAT FOLLOWS.  THE COMMISSION'S PRORATION FORMULA AS APPLIED PERMITS
OTHER LEASEHOLDERS, MORE LENIENTLY TREATED, TO CAPTURE OIL AT A MORE
RAPID RATE THAN IS POSSIBLE FOR THE RESPONDENT, THEREBY DRAINING AWAY
OIL WHICH UNDERLIES RESPONDENT'S LEASED LANDS.  THIS IS DUE BOTH TO THE
ALLOCATING FORMULA ITSELF, AND MORE ESPECIALLY TO THE PERMISSION
GRANTED MARGINAL WELLS TO PRODUCE WITHOUT LIMIT UP TO TWENTY BARRELS A
DAY.  THE "POTENTIAL" METHOD OF ALLOCATION FAILS TO GIVE SUFFICIENT
WEIGHT TO RELEVANT FACTORS IN THE MEASUREMENT OF OIL IN PLACE,
ESPECIALLY TO THE DEPTH OF RESPONDENT'S RESERVES SITUATED IN THE
"FAIRWAY," A DEEP AND RICH PORTION OF THE EAST TEXAS FIELD.  ONLY AN
ALLOCATION BASED UPON ACRE-FEET OF SAND OR ITS EQUIVALENT WOULD BE A
REASONABLE MEANS OF MEASURING THE OIL IN PLACE BENEATH RESPONDENT'S
LEASES; AND ANY FORMULA FAILING TO DO THIS TAKES RESPONDENT'S PROPERTY
WITHOUT DUE PROCESS OF LAW.  MOREOVER, THE ALLOWANCE MADE TO MARGINAL
WELLS ABSORBS SO MUCH OF THE TOTAL "ALLOWABLE" AS TO MAKE THE
COMMISSION'S ORDER IN EFFECT AN ALLOCATION ON A FLAT PER WELL BASIS,
REGARDLESS OF GREAT VARIATION IN THE CAPACITY OF THE WELLS AND THE
DENSITY WITH WHICH DIFFERENT LEASES HAVE BEEN DRILLED.  AN IMPORTANT
FACTOR IN PRODUCING THIS RESULT IS THE PERMISSION FREQUENTLY GRANTED BY
THE COMMISSION, UNDER POWER CONFERRED UPON IT BY STATUTE, FOR DEPARTURE
FROM ITS SPACING AND DRILLING RULES WHEREBY THE FIELD HAS BEEN DRILLED
WITH AN IRREGULAR DENSITY.  AS A CONSEQUENCE, THE MORE DENSELY DRILLED
TRACTS ADJOINING RESPONDENT'S LEASES MAY, BY VIRTUE OF THEIR MARGINAL
ALLOWANCES, PRODUCE OIL IN SUCH QUANTITIES AS TO DRAIN AWAY
RESPONDENT'S RESERVES.  SUCH IS THE BASIS FOR RESPONDENT'S RESISTANCE
TO THE ORDER. 

UNDERLYING THESE CLAIMS IS AS THORNY A PROBLEM AS HAS CHALLENGED THE
INGENUITY AND WISDOM OF LEGISLATURES.  IN MAJOR PART IT WAS CREATED BY
THE DISCOVERY OF VAST OIL RESOURCES AND BY THEIR DEVELOPMENT UNDER
RULES OF LAW FASHIONED IN THE FIRST INSTANCE BY COURTS ON THE BASIS OF
ANALOGIES DRAWN FROM OTHER FIELDS OF THE COMMON LAW.  IN TEXAS,
ACCORDING TO CONVENTIONAL DOCTRINE, THE HOLDER OF AN OIL LEASE "OWNS"
THE OIL IN PLACE BENEATH THE SURFACE.  LEMAR V. GARNER, 121 TEX. 502;
50 S.W.2D 769; STEPHENS COUNTY V. MID-KANSAS OIL & GAS CO., 113 TEX.
160; 254 S.W. 290; 1 SUMMERS, OIL AND GAS (2ND ED.), P. 16.  BUT
EQUALLY RECOGNIZED IS THE "RULE OF CAPTURE" WHICH SUBJECTS THE LESSEE'S
INTEREST TO HIS NEIGHBORS' POWER TO DRAIN HIS OIL AWAY.  THEREFORE, TO
SPEAK OF OWNERSHIP IN ITS RELATION TO OIL, IS TO IMPLY A CONTINGENCY OF
CONTROL NOT APPLICABLE TO ORDINARY INTERESTS IN REALTY.  SEE ELY, THE
CONSERVATION OF OIL, 51 HARV. L. REV. 1209, 1218-22.  EACH LEASEHOLDER,
THAT IS TO SAY, IS AT THE MERCY OF ALL THOSE WHO ADJOIN HIM, SINCE OIL
IS A FUGACIOUS MINERAL, THE MOVEMENTS OF WHICH ARE NOT CONFINED BY THE
ARTIFICIAL BOUNDARIES OF SURFACE TRACTS.  THIS GAP BETWEEN THE
GEOLOGICAL NATURE OF THE OIL POOL AND THE FORMAL SURFACE RIGHTS OF THE
LESSEES IS FREQUENTLY BRIDGED BY THE DRILLING OF "OFFSET WELLS" AT THE
BOUNDARY OF EACH SURFACE TRACT, SO THAT OWNERS MAY PROTECT THEMSELVES
AGAINST THE EXERCISE OF ONE ANOTHER'S CAPTURE RIGHTS.  PARTLY TO
MITIGATE THE UNDESIRABLE CONSEQUENCES OF THIS UNSYSTEMATIZED
DEVELOPMENT, THE OIL-PRODUCING STATES, TEXAS AMONG THEM, HAVE ENACTED
CONSERVATION LAWS WITH APPROPRIATE ADMINISTRATIVE MECHANISMS TO CONTROL
DRILLING AND PRODUCTION.  THE GENERAL SCHEME OF THE TEXAS STATUTE IS
NOT CHALLENGED.  ITS CONSTITUTIONALITY IS HERE SETTLED.  CHAMPLIN
REFINING CO. V. COMMISSION, 286 U.S. 210. 

BUT MERELY WRITING LAWS IS ONLY THE BEGINNING OF THE MATTER.  THE
ADMINISTRATION OF THESE LAWS IS FULL OF PERPLEXITIES.  STATE AGENCIES
HAVE ENCOUNTERED INNUMERABLE DIFFICULTIES IN TRYING TO ADJUST THE MANY
CONFLICTING INTERESTS WHICH GROW OUT OF THE RULE OF CAPTURE AND ITS
IMPLICATIONS.  THE EXPERIENCE OF TEXAS ILLUSTRATES THAT A BROOD OF
LITIGATION ALMOST INEVITABLY FOLLOWS THE INHERENT EMPIRICISM OF THESE
ATTEMPTED SOLUTIONS.  SEE ELY, OP. CIT. SUPRA, AT PP. 1225-29; MARSHALL
AND MEYERS, THE LEGAL PLANNING OF PETROLEUM PRODUCTION:  TWO YEARS OF
PRORATION, 42 YALE L.J. 701.  FOR SOME YEARS THE TEXAS COMMISSION HAS
BEEN ENGAGED IN EXPERIMENTAL ENDEAVOR TO DEVISE APPROPRIATE FORMULAS
FOR A FAIR ALLOTMENT OF THE ALLOWABLE PRODUCTION.  THE COMMITMENT OF
SUCH A DELICATE TASK TO THE ADMINISTRATIVE PROCESS HAS NOT ESCAPED
CHALLENGE IN THE COURTS, AND AT TIMES THE CHALLENGE HAS BEEN
SUCCESSFUL.  COMPARE MACMILLAN V. RAILROAD COMMISSION, 51 F.2D 400;
CONSTANTIN V. SMITH, 57 F.2D 227; PEOPLES' PETROLEUM PRODUCERS V.
SMITH, 1 F.SUPP.  361; AMAZON PETROLEUM CORP. V. RAILROAD COMMISSION, 5
F.SUPP.  633.  BUT SUCH CASES ARE ONLY EPISODES IN THE EVOLUTION OF
ADJUSTMENT AMONG PRIVATE INTERESTS AND IN THE RECONCILIATION OF ALL
THESE PRIVATE INTERESTS WITH THE UNDERLYING PUBLIC INTEREST IN SUCH A
VITAL SOURCE OF ENERGY FOR OUR DAY AS OIL.  CERTAINLY SO FAR AS THE
FEDERAL COURTS ARE CONCERNED THE EVOLUTION OF THESE FORMULAS BELONGS TO
THE COMMISSION AND NOT TO THE JUDICIARY.  EXCEPT WHERE THE JURISDICTION
RESTS, AS IT DOES NOT HERE, ON DIVERSITY OF CITIZENSHIP, THE ONLY
QUESTION OPEN TO A FEDERAL TRIBUNAL IS WHETHER THE STATE ACTION
COMPLAINED OF HAS TRANSGRESSED WHATEVER RESTRICTIONS THE VAGUE CONTOURS
OF THE DUE PROCESS CLAUSE MAY PLACE UPON THE EXERCISE OF THE STATE'S
REGULATORY POWER.  A CONTROVERSY LIKE THIS ALWAYS CALLS FOR FRESH
REMINDER THAT COURTS MUST NOT SUBSTITUTE THEIR NOTIONS OF EXPEDIENCY
AND FAIRNESS FOR THOSE WHICH HAVE GUIDED THE AGENCIES TO WHOM THE
FORMULATION AND EXECUTION OF POLICY HAVE BEEN ENTRUSTED. 

GENERAL AS THESE CONSIDERATIONS MAY BE, THEY ARE DECISIVE OF THE
PRESENT CASE.  BOTH THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS
APPEAR TO HAVE BEEN DOMINATED BY THEIR OWN CONCEPTION OF THE FAIRNESS
AND REASONABLENESS OF THE CHALLENGED ORDER.  FOR ALL WE KNOW, THE
JUDGMENT OF THESE TWO LOWER COURTS MAY HAVE BEEN WISER THAN THAT OF THE
COMMISSION, AND THEIR STANDARD OF FAIRNESS A BETTER ONE.  BUT WHETHER A
SYSTEM OF PRORATION BASED UPON HOURLY POTENTIAL IS AS FAIR AS ONE BASED
UPON ESTIMATED RECOVERABLE RESERVES OR SOME OTHER FACTOR OR COMBINATION
OF FACTORS, IS IN ITSELF A QUESTION FOR ADMINISTRATIVE AND NOT JUDICIAL
JUDGMENT.  ACCORDING TO THE COMMISSION'S EXPERTS, THEORIES OF
ALLOCATION URGED BY THE RESPONDENT AND ACCEPTED BY THE COURTS BELOW
WOULD IN FACT GIVE TO RESPONDENT MORE THAN ITS FAIR SHARE OF THE OIL IN
THE FIELD.  RESPONDENT, THE COMMISSION'S WITNESSES CONTEND, WOULD GAIN
UNDUE BENEFIT FROM THE CONSTANT EASTWARD MIGRATIONS OF OIL CAUSED BY
THE GRADUAL INFLUENCE OF SUBSURFACE PRESSURE GRADIENTS - AND THIS AT
THE EXPENSE OF OTHER LESSEES IN GEOLOGICALLY LESS FORTUNATE PORTIONS OF
THE FIELD.  THE COMMISSION'S EXPERTS FURTHER INSISTED THAT, THOUGH MUCH
TECHNICAL PROGRESS HAS BEEN MADE, ESTIMATES OF RECOVERABLE RESERVES
BENEATH THE SURFACE OF A PARTICULAR TRACT REMAIN LARGELY AN
INDETERMINATE VENTURE; AND THAT HOURLY POTENTIAL ACTUALLY TAKES INTO
ACCOUNT, AT LEAST IN SOME MEASURE, ALL RELEVANT FACTORS FOR
ASCERTAINING RECOVERABLE RESERVES.  CERTAINLY IN A DOMAIN OF KNOWLEDGE
STILL SHIFTING AND GROWING, AND IN A FIELD WHERE JUDGMENT IS THEREFORE
NECESSARILY BESET BY THE NECESSITY OF INFERENCES BORDERING ON
CONJECTURE EVEN FOR THOSE LEARNED IN THE ART, IT WOULD BE PRESUMPTUOUS
FOR COURTS, ON THE BASIS OF CONFLICTING EXPERT TESTIMONY, TO DEEM THE
VIEW OF THE ADMINISTRATIVE TRIBUNAL, ACTING UNDER LEGISLATIVE
AUTHORITY, OFFENSIVE TO THE FOURTEENTH AMENDMENT.  COMPARE SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177, 191, ET SEQ. 
EQUALLY ENMESHED IN A CONFLICT OF EXPERTISE IS THE CLAIM MOST
VIGOROUSLY URGED BY RESPONDENT THAT, TAKEN IN CONNECTION WITH
EXCEPTIONS MADE BY THE COMMISSION TO ITS SPACING RULES AND WITH THE
UNRESTRICTED TWENTY BARREL ALLOWANCE TO MARGINAL WELLS, THE PRORATION
ORDER SUBSTANTIALLY PLACES PRODUCTION ON A FLAT PER WELL BASIS.  SUCH A
RESULT, ACCORDING TO RESPONDENT'S CLAIM AS ACCEPTED BY THE LOWER
COURTS, GIVES A CONSTITUTIONALLY INADMISSIBLE ADVANTAGE TO SMALLER AND
MORE DENSELY DRILLED TRACTS AS AGAINST THOSE OWNED BY RESPONDENT.  BUT
THIS CLAIM REALLY PRESENTS A MORE SPECIALIZED ASPECT OF THE GENERAL
PROBLEM.  IN REGULATING FLOW OF PRODUCTION THE TREATMENT TO BE ACCORDED
TO SMALL AND IRREGULARLY SHAPED TRACTS WHICH DO NOT FIT NEATLY INTO THE
COMMISSION'S GENERAL SCHEME FOR SPACING, HAS PRESENTED A DIFFICULTY
ALMOST AS GREAT AS THE FRAMING OF PRORATION FORMULAS.  COMPARE WALKER,
THE PROBLEM OF THE SMALL TRACT UNDER SPACING REGULATIONS, 17 TEX. L.
REV. 157(SUPP.  BAR ASSOCIATION PROCEEDINGS).  TO DENY THE HOLDERS OF
THESE TRACTS PERMISSION TO DRILL MIGHT SUBJECT THEM TO THE RISK OF
LOSING THEIR OIL IN PLACE OR OF BEING PUT AT THE MERCY OF ADJOINING
HOLDERS.  IN MANY INSTANCES, THEREFORE, THE COMMISSION HAS GRANTED
EXCEPTIONS TO ITS GENERAL SPACING RULE ON THE BASIS OF WHICH
INVESTMENTS HAVE BEEN MADE AND WELLS DRILLED.  IF THESE WELLS, MOST OF
THEM SMALL, WERE RESTRICTED TO PRODUCTION ON THE BASIS OF AN HOURLY
POTENTIAL FORMULA, IT MIGHT BE UNPROFITABLE TO OPERATE THEM AT ALL. 
NOT ONLY ARE THE INDIVIDUAL INTERESTS OF THESE SMALL OPERATORS
INVOLVED, BUT THEIR EFFECT ON THE STATE'S ECONOMY IS AN APPROPRIATE
FACTOR TO BE TAKEN INTO ACCOUNT WHEN PLANS ARE DEVISED TO KEEP THE
WELLS OPEN. 

A FLAT PER WELL ALLOWANCE TO THESE PRODUCERS WAS NOT AN UNNATURAL
ANSWER TO THE PROBLEM.  WHETHER, AS CONTENDED BY THE RESPONDENT, THE
MAXIMUM FIGURE SET BY THE COMMISSION IS TOO HIGH IN THAT IT LEADS TO
THE CAPTURE OF OIL FROM BENEATH ITS LEASES BY NEIGHBORING OPERATORS,
AND WHETHER A LOWER LIMIT MIGHT SUFFICE TO ASSURE PROFITABLE PRODUCTION
- THESE QUESTIONS TAKE US INTO THAT DEBATABLE TERRITORY WHICH IT IS NOT
THE PROVINCE OF FEDERAL COURTS TO ENTER.  THE RECORD IS REDOLENT WITH
FAMILIAR DOGMATIC ASSERTIONS BY EXPERTS EQUALLY CONFIDENT OF
CONTRADICTORY CONTENTIONS.  THESE TOUCH MATTERS OF GEOGRAPHY AND
GEOLOGY AND PHYSICS AND ENGINEERING.  NO LESS IS THERE CONFLICT IN THE
EVIDENCE AS TO THE SOLIDITY OF RESPONDENT'S APPREHENSION THAT THERE
WILL BE DRAINAGE OF THE OIL BENEATH ITS SURFACE BY NEIGHBORING WELLS. 
THE COMMISSION'S EXPERTS INSIST THAT THE THREAT, IF EXISTENT AT ALL, IS
SPECULATIVE, AND THAT THE COMMISSION'S POWER OF CONTINUOUS OVERSIGHT IS
READILY AVAILABLE FOR RELIEF IF REAL DANGER SHOULD ARISE IN THE
FUTURE. 

PLAINLY THESE ARE NOT ISSUES FOR OUR ARBITRAMENT.  THE STATE WAS
CONFRONTED WITH ITS GENERAL PROBLEM OF PRORATION AND WITH THE SPECIAL
RELATION TO IT OF THE SMALL TRACTS IN THE PARTICULAR CONFIGURATION OF
THE EAST TEXAS FIELD.  FN1  IT HAS CHOSEN TO MEET THESE PROBLEMS
THROUGH THE DAY-TO-DAY EXERTIONS OF A BODY SPECIALLY ENTRUSTED WITH THE
TASK BECAUSE PRESUMABLY COMPETENT TO DEAL WITH IT.  IN STRIKING THE
BALANCES THAT HAVE TO BE STRUCK WITH THE COMPLICATED AND SUBTLE FACTORS
THAT MUST ENTER INTO SUCH JUDGMENTS, THE COMMISSION HAS OBSERVED
ESTABLISHED PROCEDURE.  IF THE HISTORY OF PRORATION IS ANY GUIDE, THE
PRESENT ORDER IS BUT ONE MORE ITEM IN A CONTINUOUS SERIES OF
ADJUSTMENTS.  IT IS NOT FOR THE FEDERAL COURTS TO SUPPLANT THE
COMMISSION'S JUDGMENT EVEN IN THE FACE OF CONVINCING PROOF THAT A
DIFFERENT RESULT WOULD HAVE BEEN BETTER. 

THE CHALLENGED DECREE MUST THEREFORE BE REVERSED. 

FN1  WE ARE HERE NOT CONCERNED WITH A STATUTE, OR ORDERS UNDER IT,
NOT THOUGHT TO ENFORCE STATE POLICY "FOR THE PREVENTION OF WASTE, AND
THE PROTECTION OF CORRELATIVE RIGHTS OF OWNERS IN THE COMMON POOL," BUT
DIRECTED SOLELY "TO COMPEL THOSE WHO MAY LEGALLY PRODUCE, BECAUSE THEY
HAVE MARKET OUTLETS FOR PERMITTED USES, TO PURCHASE GAS FROM POTENTIAL
PRODUCERS WHOM THE STATUTE PROHIBITS FROM PRODUCING BECAUSE THEY LACK
SUCH A MARKET FOR THEIR POSSIBLE PRODUCT."  THOMPSON V. CONSOLIDATED
GAS CORP., 300 U.S. 55, 69, 77. 

MR. JUSTICE ROBERTS, DISSENTING: 

THE PETITIONERS' PRORATION ORDER IS CHALLENGED NOT MERELY AS UNFAIR
OR UNREASONABLE BUT AS CONFISCATORY OF THE RESPONDENT'S PROPERTY.  UPON
THE ALLEGATIONS OF THE BILL, THE DISTRICT COURT HAD JURISDICTION. 
ALTHOUGH THE PROBLEM OF PRORATION PRESENTED TECHNICAL AND DIFFICULT
QUESTIONS, AND ALTHOUGH THE COMMISSION WAS VESTED WITH A BROAD
DISCRETION IN DEALING WITH THEM, THESE FACTS COULD NOT JUSTIFY THE
COURT'S ABDICATING ITS JURISDICTION TO TEST THE COMMISSION'S ORDER. 
THE CASE WAS TRIED DE NOVO AND NEITHER THE FULL RECORD MADE BEFORE THE
COMMISSION NOR ITS FINDINGS APPEAR IN THE EVIDENCE, EXCEPT FOR WHAT IS
CONTAINED IN THE COMMISSION'S ORDERS.  AFTER A PAINSTAKING TRIAL, AND
UPON DETAILED AND WELL SUPPORTED FINDINGS OF FACT, THE COURT REACHED
THE CONCLUSION THAT THE ORDER WORKED A CONFISCATION OF RESPONDENT'S
PROPERTY.  FN1  THE COURT SAID: "THE RESPONDENTS' (PETITIONERS')
ENGINEERS FRANKLY ADMITTED THAT THE PRESENT SCHEME OF PRORATION IS
NOTHING MORE OR LESS THAN ONE ON A PER WELL BASIS."  REFERRING TO SUCH
A BASIS, THE COURT ADDED:  "IT IS SUFFICIENT TO SAY THAT IT TAKES NO
ACCOUNT OF THE DIFFERENCE IN THE WELLS, OF THE RICHNESS OR THICKNESS OF
THE SAND, OF THE LOCATION UPON THE STRUCTURE, OF THE POROSITY OR
PERMEABILITY OF THE SAND, OF THE ESTIMATED OIL RESERVES, OR OF THE
ACREAGE UPON WHICH THE RESPECTIVE WELLS ARE SITUATED.  THE WORST
PROPERTY IS RAISED TO THE LEVEL OF THE BEST AND THE BEST IS LOWERED TO
THE LEVEL OF THE WORST."  THE COURT CONCLUDED THAT THE ORDER OPERATED
TO APPROPRIATE, FOR THE BENEFIT OF OTHERS, THE RESPONDENT'S OIL WITHOUT
COMPENSATION. 

THE CIRCUIT COURT OF APPEALS APPROVED AND ADOPTED THE FINDINGS AND
CONCLUSIONS OF THE DISTRICT COURT.  FN2 

THE OPINION OF THIS COURT, IN MY JUDGMENT, ANNOUNCES PRINCIPLES WITH
RESPECT TO THE REVIEW OF ADMINISTRATIVE ACTION CHALLENGED UNDER THE DUE
PROCESS CLAUSE DIRECTLY CONTRARY TO THOSE WHICH HAVE BEEN ESTABLISHED. 
A RECENT EXPOSITION OF THE APPLICABLE PRINCIPLES IS FOUND IN THE
OPINION OF MR. JUSTICE BRANDEIS, WRITTEN FOR A UNANIMOUS COURT, IN
THOMPSON V. CONSOLIDATED GAS UTILITIES CORP., 300 U.S. 55, DEALING WITH
A PRORATION ORDER AFFECTING GAS, ENTERED BY THE SAME COMMISSION WHICH
ENTERED THE ORDER HERE IN ISSUE.  I THINK THAT ADHERENCE TO THE
PRINCIPLES THERE STATED REQUIRES THE AFFIRMANCE OF THE DECREE. 

FN1  28 F.SUPP.  131. 

FN2  107 F.2D 70. 

THE CHIEF JUSTICE AND MR. JUSTICE MCREYNOLDS JOIN IN THIS OPINION. 

REPORTER'S NOTE.  - THE OPINION OF THE COURT IN THIS CASE WAS AMENDED
BY AN ORDER OF OCTOBER 21, 1940, WHICH WILL BE REPORTED IN VOL. 311
U.S.
..END :














MINERSVILLE DISTRICT V. GOBITIS, 310 U.S. 586 


NO. 690.  ARGUED APRIL 25, 1940.  - DECIDED JUNE 3, 1940.  - 108 F.2D
683, REVERSED. 


1.  A STATE REGULATION REQUIRING THAT PUPILS IN THE PUBLIC SCHOOLS, ON
PAIN OF EXPULSION, PARTICIPATE IN A DAILY CEREMONY OF SALUTING THE
NATIONAL FLAG, WHILST RECITING IN UNISON A PLEDGE OF ALLEGIANCE TO IT
"AND TO THE REPUBLIC FOR WHICH IT STANDS; ONE NATION INDIVISIBLE, WITH
LIBERTY AND JUSTICE FOR ALL" - HELD WITHIN THE SCOPE OF LEGISLATIVE
POWER, AND CONSISTENT WITH THE FOURTEENTH AMENDMENT, AS APPLIED TO
CHILDREN BROUGHT UP IN, AND ENTERTAINING, A CONSCIENTIOUS RELIGIOUS
BELIEF THAT SUCH OBEISANCE TO THE FLAG IS FORBIDDEN BY THE BIBLE AND
THAT THE BIBLE, AS THE WORD OF GOD, IS THE SUPREME AUTHORITY.  P. 591. 

2.  RELIGIOUS CONVICTIONS DO NOT RELIEVE THE INDIVIDUAL FROM
OBEDIENCE TO AN OTHERWISE VALID GENERAL LAW NOT AIMED AT THE PROMOTION
OR RESTRICTION OF RELIGIOUS BELIEFS.  P. 594. 

3.  SO FAR AS THE FEDERAL CONSTITUTION IS CONCERNED, IT IS WITHIN THE
PROVINCE OF THE LEGISLATURES AND SCHOOL AUTHORITIES OF THE SEVERAL
STATES TO ADOPT APPROPRIATE MEANS TO EVOKE AND FOSTER A SENTIMENT OF
NATIONAL UNITY AMONG THE CHILDREN IN THE PUBLIC SCHOOLS.  P. 597. 

4.  THIS COURT CAN NOT EXERCISE CENSORSHIP OVER THE CONVICTION OF
LEGISLATURES THAT A PARTICULAR PROGRAM OR EXERCISE WILL BEST PROMOTE IN
THE MINDS OF CHILDREN WHO ATTEND THE COMMON SCHOOLS AN ATTACHMENT TO
THE INSTITUTIONS OF THEIR COUNTRY, NOR OVERRULE THE LOCAL JUDGMENT
AGAINST GRANTING EXEMPTIONS FROM OBSERVANCE OF SUCH A PROGRAM.  P.
598. 

MINERSVILLE SCHOOL DISTRICT, BOARD OF EDUCATION OF MINERSVILLE SCHOOL
DISTRICT, ET AL. V. GOBITIS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 309 U.S. 645, TO REVIEW THE AFFIRMANCE OF A DECREE (24
F.SUPP.  271; OPINION, 21 F.SUPP.  581) WHICH PERPETUALLY ENJOINED THE
ABOVE-NAMED SCHOOL DISTRICT, THE MEMBERS OF ITS BOARD OF EDUCATION, AND
ITS SUPERINTENDENT OF PUBLIC SCHOOLS, FROM CONTINUING TO ENFORCE AN
ORDER EXPELLING FROM THE PUBLIC SCHOOLS CERTAIN MINORS (SUING IN THIS
CASE BY THEIR FATHER AS NEXT FRIEND) AND FROM REQUIRING THEM TO SALUTE
THE NATIONAL FLAG AS A CONDITION TO THEIR RIGHT TO ATTEND. 

THE RESOLUTION OF THE SCHOOL BOARD REQUIRING PUPILS TO SALUTE THE
FLAG WAS LAWFULLY ADOPTED, AND THE EXPULSION OF THE CHILDREN WAS WITHIN
ITS POWER AND AUTHORITY. 

THE EXPULSION OF THE CHILDREN DID NOT VIOLATE ANY RIGHT UNDER THE
CONSTITUTION OF THE UNITED STATES.  LEOLES V. LANDERS, 302 U.S. 656;
HERING V. STATE BOARD OF EDUCATION, 303 U.S. 624; GABRIELLI V.
KNICKERBOCKER, 306 U.S. 621; JOHNSON V. DEERFIELD, 306 U.S. 621;
JOHNSON V. DEERFIELD, 307 U.S. 650; LEOLES V. LANDERS, 184 GA. 580;
HERING V. STATE BOARD OF EDUCATION, 118 N.J.L. 566; GABRIELLI V.
KNICKERBOCKER, 12 CAL.2D 85; JOHNSON V. DEERFIELD, 25 F.SUPP.  918;
PEOPLE V. SANDSTROM, 279 N.Y. 523; NICHOLLS V. MAYOR, 7 N.E.2D 577;
HAMILTON V. REGENTS, 293 U.S. 245; COALE V. PEARSON, 290 U.S. 597;
REYNOLDS V. UNITED STATES, 98 U.S. 145; DAVIS V. BEASON, 133 U.S. 333;
JACOBSON V. MASSACHUSETTS, 197 U.S. 11; SELECTIVE DRAFT LAW CASES, 245
U.S. 366; SHAPIRO V. LYLE, 30 F.2D 971; UNITED STATES V. MACINTOSH, 283
U.S. 605, 625. 

THE EXPULSION OF THE CHILDREN DID NOT VIOLATE ANY RIGHT UNDER THE
CONSTITUTION OF PENNSYLVANIA.  COMMONWEALTH V. LESHER, 17 S. & R.
(PA.)  155, 160; WILKES-BARRE V. GARABED, 11 PA. SUPER.  355, 366;
COMMONWEALTH V. HERR, 229 PA. 132, 141; STEVENSON V. HANYON, 7 PA.
DIST. REP. 585; PITTSBURGH V. RUFFNER, 134 PA. SUPER.  192, 198; OATHS
OF ALLEGIANCE IN PUBLIC SCHOOLS, 25 PA. DIST. & COUNTY REP. 8. 

THE REFUSAL OF THE CHILDREN TO SALUTE THE NATIONAL FLAG AT SCHOOL
EXERCISES BECAUSE THEY BELIEVED THAT TO DO SO WOULD VIOLATE THE WRITTEN
LAW OF ALMIGHTY GOD AS CONTAINED IN THE BIBLE WAS NOT FOUNDED ON A
RELIGIOUS BELIEF.  DAVIS V. BEASON, 133 U.S. 333, 342. 

THE ACT OF SALUTING THE FLAG HAS NO BEARING ON WHAT A PUPIL MAY THINK
OF HIS CREATOR OR WHAT ARE HIS RELATIONS TO HIS CREATOR.  NOR IS A
PUPIL REQUIRED TO EXHIBIT HIS RELIGIOUS SENTIMENTS IN A PARTICULAR
"FORM OF WORSHIP" WHEN SALUTING THE FLAG, BECAUSE THE CEREMONY IS NOT,
BY ANY STRETCH OF THE IMAGINATION, A "FORM OF WORSHIP."  LIKE THE STUDY
OF HISTORY OR CIVICS OR THE DOING OF ANY OTHER ACT WHICH MIGHT MAKE A
PUPIL MORE PATRIOTIC AS WELL AS TEACH HIM OR HER "LOYALTY TO THE STATE
AND NATIONAL GOVERNMENT," THE SALUTE HAS NO RELIGIOUS IMPLICATIONS. 
NICHOLLS V. MAYOR, 7 N.E.2D 577, 580; LEOLES V. LANDERS, 184 GA. 580,
587; PEOPLES V. SANDSTROM, 279 N.Y. 523, 529. 

THE COMMANDMENTS OF JEHOVAH, AS SET FORTH IN THE BIBLE, DO NOT
PROHIBIT THE SALUTING OF A NATIONAL FLAG BUT ON THE CONTRARY APPROVE OF
THAT PRACTICE. 

THE ACT OF SALUTING THE FLAG IS ONLY ONE OF MANY WAYS IN WHICH A
CITIZEN MAY EVIDENCE HIS RESPECT FOR THE GOVERNMENT.  EVERY CITIZEN
STANDS AT ATTENTION, AND THE MEN REMOVE THEIR HATS, WHEN THE NATIONAL
ANTHEM IS PLAYED; YET SUCH ACTION CAN NOT BE CALLED A RELIGIOUS
CEREMONY.  THE SAME RESPECT IS SHOWN THE AMERICAN FLAG WHEN IT PASSES
IN A PARADE; YET THAT IS NOT A RELIGIOUS RITE. 

THOUGH MEMBERS OF JEHOVAH'S WITNESSES ENDEAVOR TO EXTEND RELIGIOUS
IMPLICATIONS TO A CEREMONY PURELY PATRIOTIC IN DESIGN, THEY DO NOT
ACCORD TO OTHERS THE RELIGIOUS FREEDOM WHICH THEY DEMAND FOR
THEMSELVES, CLAIMING THAT THERE IS NO LIMIT TO WHICH THEY MAY GO WHEN
THEY THINK THEY ARE WORSHIPPING GOD.  CANTWELL V. CONNECTICUT, 126
CONN. 1; 310 U.S. 296. 

THE ACT OF SALUTING THE FLAG DOES NOT PREVENT A PUPIL, NO MATTER WHAT
HIS RELIGIOUS BELIEF MAY BE, FROM ACKNOWLEDGING THE SPIRITUAL
SOVEREIGNTY OF ALMIGHTY GOD BY RENDERING TO GOD THE THINGS WHICH ARE
GOD'S.  HARDWICK V. BOARD OF SCHOOL TRUSTEES, 54 CAL. APP. 696, 712. 

THE RULE COMPELLING RESPONDENTS TO PARTICIPATE IN THE CEREMONY OF
SALUTING THE FLAG AND THE ACT OF ITS SCHOOL BOARD IN EXPELLING THEM
BECAUSE THEY REFRAINED, VIOLATE THEIR RIGHTS GUARANTEED BY ART.  I,
SEC. 3, OF THE CONSTITUTION OF PENNSYLVANIA AND THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. 

THE VITAL QUESTION IS:  SHALL THE CREATURE MAN BE FREE TO EXERCISE
HIS CONSCIENTIOUS BELIEF IN GOD AND HIS OBEDIENCE TO THE LAW OF
ALMIGHTY GOD, THE CREATOR, OR SHALL THE CREATURE MAN BE COMPELLED TO
OBEY THE LAW OR RULE OF THE STATE, WHICH LAW OF THE STATE, AS THE
CREATURE CONSCIENTIOUSLY BELIEVES, IS IN DIRECT CONFLICT WITH THE LAW
OF ALMIGHTY GOD? 

THIS COURT HAS REPEATEDLY HELD THAT THE INDIVIDUAL ALONE IS
PRIVILEGED TO DETERMINE WHAT HE SHALL OR SHALL NOT BELIEVE.  THE LAW,
THEREFORE, DOES NOT ATTEMPT TO SETTLE DIFFERENCES OF CREEDS AND
CONFESSIONS, OR TO SAY THAT ANY POINT OR DOCTRINE IS TOO ABSURD TO BE
BELIEVED.  THAT RULE WAS LAID DOWN MORE THAN ONE HUNDRED YEARS AGO BY
THE PENNSYLVANIA COURTS IN SCHRIBER V. RAPP, 5 WATTS 351, 363. 

AS EARLY AS 1784 A LIKE QUESTION WAS BEFORE THE HOUSE OF DELEGATES OF
THE STATE OF VIRGINIA.  MR. JEFFERSON PREPARED A BILL:  "FOR
ESTABLISHING RELIGIOUS FREEDOM."  AFTER DEFINING RELIGIOUS FREEDOM AND
RECITING "THAT TO SUFFER THE CIVIL MAGISTRATE TO INTRUDE HIS POWERS
INTO THE FIELD OF OPINION, AND TO RESTRAIN THE PROFESSION OR
PROPAGATION OF PRINCIPLES ON SUPPOSITION OF THEIR ILL TENDENCY, IS A
DANGEROUS FALLACY WHICH AT ONCE DESTROYS ALL RELIGIOUS LIBERTY," IT IS
DECLARED "THAT IT IS TIME ENOUGH FOR THE RIGHTFUL PURPOSES OF CIVIL
GOVERNMENT FOR ITS OFFICERS TO INTERFERE WHEN PRINCIPLES BREAK OUT INTO
OVERT ACTS AGAINST PEACE AND GOOD ORDER."  SEE REYNOLDS V. UNITED
STATES, 98 U.S. 145, 162. 

WILL ANY COURT ATTEMPT TO SAY THAT RESPONDENTS MISTAKENLY BELIEVE
WHAT IS SET FORTH IN THE TWENTIETH CHAPTER OF EXODUS IN THE BIBLE?  THE
BELIEF OF RESPONDENTS IS NOT BASED UPON CONJECTURE OR A MYTH. 
RESPONDENTS' BELIEF IS BASED STRICTLY UPON THE BIBLE.  THE MINOR
RESPONDENTS FROM THEIR INFANCY HAVE BEEN TAUGHT BY THEIR FATHER TO RELY
UPON THE BIBLE. 

THE SALUTING OF THE FLAG OF ANY EARTHLY GOVERNMENT BY A PERSON WHO
HAS COVENANTED TO DO THE WILL OF GOD IS A FORM OF RELIGION AND
CONSTITUTES IDOLATRY. 

THE MODERN-DAY COMPULSORY FLAG SALUTING AS A DAILY EXERCISE OR
CEREMONY IN THE PUBLIC SCHOOLS IS CLEARLY AN EXPERIMENT.  THE NATION
HAS EXISTED FOR MORE THAN A CENTURY WITHOUT ANY SUCH ENFORCED RULE.  TO
EXPEL CHILDREN FROM SCHOOL AND DENY THEM THE OPPORTUNITY OF AN
EDUCATION BECAUSE THEY REFUSE TO VIOLATE THEIR CONSCIENCE, IS WRONG AND
IS CRUEL AND UNUSUAL PUNISHMENT.  "NO CRUEL EXPERIMENT ON ANY LIVING
CREATURE SHALL BE PERMITTED IN ANY PUBLIC SCHOOL OF THIS
COMMONWEALTH."  24 PURDON'S PA. STAT. ANN.  SEC. 1554. 

"THE GREATEST DANGERS TO LIBERTY LURK IN INSIDIOUS ENCROACHMENT BY
MEN OF ZEAL, WELL MEANING, BUT WITHOUT UNDERSTANDING."  MR. JUSTICE
BRANDEIS, IN OLMSTEAD V. UNITED STATES, 277 U.S. 479.  SEE ASSOCIATED
PRESS V. NATIONAL LABOR RELATIONS BOARD, 301 U.S. 103, 141. 

THE RULE CERTAINLY ABRIDGES THE PRIVILEGES OF THE RESPONDENTS AND
DEPRIVES THEM OF LIBERTY AND PROPERTY WITHOUT DUE PROCESS OF LAW.  CF.
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, 534-535 

PETITIONERS CLAIM THAT THE PURPOSE OF SALUTING THE FLAG IS TO
"INSTILL IN THE CHILDREN PATRIOTISM AND LOVE OF COUNTRY."  BUT WHY
LIMIT THAT COMPULSORY RULE TO TEACHERS AND PUPILS OF THE PUBLIC
SCHOOLS?  WHY NOT REQUIRE THAT SAME CEREMONY IN ALL THE SCHOOLS?  WHY
NOT APPLY THE SAME RULE TO ALL OFFICIALS OF THE NATION AND STATE, FROM
THE PRESIDENT AND THE MEMBERS OF CONGRESS DOWN TO THE VERY LEAST AND
HUMBLEST CITIZEN?  THE GENERAL ANSWER WOULD BE THAT THE ENFORCEMENT OF
SUCH A RULE IS RIDICULOUS AND NONSENSICAL.  CHAP. 14, "PATRIOTISM OF
THE FLAG," MOSS, THE FLAG OF THE UNITED STATES, ITS HISTORY AND
SYMBOLISM, PP. 85-86. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

A GRAVE RESPONSIBILITY CONFRONTS THIS COURT WHENEVER IN COURSE OF
LITIGATION IT MUST RECONCILE THE CONFLICTING CLAIMS OF LIBERTY AND
AUTHORITY.  BUT WHEN THE LIBERTY INVOKED IS LIBERTY OF CONSCIENCE, AND
THE AUTHORITY IS AUTHORITY TO SAFEGUARD THE NATION'S FELLOWSHIP,
JUDICIAL CONSCIENCE IS PUT TO ITS SEVEREST TEST.  OF SUCH A NATURE IS
THE PRESENT CONTROVERSY. 

LILLIAN GOBITIS, AGED TWELVE, AND HER BROTHER WILLIAM, AGED TEN, WERE
EXPELLED FROM THE PUBLIC SCHOOLS OF MINERSVILLE, PENNSYLVANIA, FOR
REFUSING TO SALUTE THE NATIONAL FLAG AS PART OF A DAILY SCHOOL
EXERCISE.  THE LOCAL BOARD OF EDUCATION REQUIRED BOTH TEACHERS AND
PUPILS TO PARTICIPATE IN THIS CEREMONY.  THE CEREMONY IS A FAMILIAR
ONE.  THE RIGHT HAND IS PLACED ON THE BREAST AND THE FOLLOWING PLEDGE
RECITED IN UNISON:  "I PLEDGE ALLEGIANCE TO MY FLAG, AND TO THE
REPUBLIC FOR WHICH IT STANDS; ONE NATION INDIVISIBLE, WITH LIBERTY AND
JUSTICE FOR ALL."  WHILE THE WORDS ARE SPOKEN, TEACHERS AND PUPILS
EXTEND THEIR RIGHT HANDS IN SALUTE TO THE FLAG.  THE GOBITIS FAMILY ARE
AFFILIATED WITH "JEHOVAH'S WITNESSES," FOR WHOM THE BIBLE AS THE WORD
OF GOD IS THE SUPREME AUTHORITY.  THE CHILDREN HAD BEEN BROUGHT UP
CONSCIENTIOUSLY TO BELIEVE THAT SUCH A GESTURE OF RESPECT FOR THE FLAG
WAS FORBIDDEN BY COMMAND OF SCRIPTURE.  FN1 

THE GOBITIS CHILDREN WERE OF AN AGE FOR WHICH PENNSYLVANIA MAKES
SCHOOL ATTENDANCE COMPULSORY.  THUS THEY WERE DENIED A FREE EDUCATION,
AND THEIR PARENTS HAD TO PUT THEM INTO PRIVATE SCHOOLS.  TO BE RELIEVED
OF THE FINANCIAL BURDEN THEREBY ENTAILED, THEIR FATHER, ON BEHALF OF
THE CHILDREN AND IN HIS OWN BEHALF, BROUGHT THIS SUIT.  HE SOUGHT TO
ENJOIN THE AUTHORITIES FROM CONTINUING TO EXACT PARTICIPATION IN THE
FLAG-SALUTE CEREMONY AS A CONDITION OF HIS CHILDREN'S ATTENDANCE AT THE
MINERSVILLE SCHOOL.  AFTER TRIAL OF THE ISSUES, JUDGE MARIS GAVE RELIEF
IN THE DISTRICT COURT, 24 F.SUPP.  271, ON THE BASIS OF A THOUGHTFUL
OPINION AT A PRELIMINARY STAGE OF THE LITIGATION, 21 F.SUPP.  581; HIS
DECREE WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS, 108 F.2D 683. 
SINCE THIS DECISION RAN COUNTER TO SEVERAL PER CURIAM DISPOSITIONS OF
THIS COURT,  FN2  WE GRANTED CERTIORARI TO GIVE THE MATTER FULL
RECONSIDERATION.  309 U.S. 645.  BY THEIR ABLE SUBMISSIONS, THE
COMMITTEE ON THE BILL OF RIGHTS OF THE AMERICAN BAR ASSOCIATION AND THE
AMERICAN CIVIL LIBERTIES UNION, AS FRIENDS OF THE COURT, HAVE HELPED US
TO OUR CONCLUSION. 

WE MUST DECIDE WHETHER THE REQUIREMENT OF PARTICIPATION IN SUCH A
CEREMONY, EXACTED FROM A CHILD WHO REFUSES UPON SINCERE RELIGIOUS
GROUNDS, INFRINGES WITHOUT DUE PROCESS OF LAW THE LIBERTY GUARANTEED BY
THE FOURTEENTH AMENDMENT. 

CENTURIES OF STRIFE OVER THE ERECTION OF PARTICULAR DOGMAS AS
EXCLUSIVE OR ALL-COMPREHENDING FAITHS LED TO THE INCLUSION OF A
GUARANTEE FOR RELIGIOUS FREEDOM IN THE BILL OF RIGHTS.  THE FIRST
AMENDMENT, AND THE FOURTEENTH THROUGH ITS ABSORPTION OF THE FIRST,
SOUGHT TO GUARD AGAINST REPETITION OF THOSE BITTER RELIGIOUS STRUGGLES
BY PROHIBITING THE ESTABLISHMENT OF A STATE RELIGION AND BY SECURING TO
EVERY SECT THE FREE EXERCISE OF ITS FAITH.  SO PERVASIVE IS THE
ACCEPTANCE OF THIS PRECIOUS RIGHT THAT ITS SCOPE IS BROUGHT INTO
QUESTION, AS HERE, ONLY WHEN THE CONSCIENCE OF INDIVIDUALS COLLIDES
WITH THE FELT NECESSITIES OF SOCIETY. 

CERTAINLY THE AFFIRMATIVE PURSUIT OF ONE'S CONVICTIONS ABOUT THE
ULTIMATE MYSTERY OF THE UNIVERSE AND MAN'S RELATION TO IT IS PLACED
BEYOND THE REACH OF LAW.  GOVERNMENT MAY NOT INTERFERE WITH ORGANIZED
OR INDIVIDUAL EXPRESSION OF BELIEF OR DISBELIEF.  PROPAGATION OF BELIEF
- OR EVEN OF DISBELIEF - IN THE SUPERNATURAL IS PROTECTED, WHETHER IN
CHURCH OR CHAPEL, MOSQUE OR SYNAGOGUE, TABERNACLE OR MEETING-HOUSE. 
LIKEWISE THE CONSTITUTION ASSURES GENEROUS IMMUNITY TO THE INDIVIDUAL
FROM IMPOSITION OF PENALTIES FOR OFFENDING, IN THE COURSE OF HIS OWN
RELIGIOUS ACTIVITIES, THE RELIGIOUS VIEWS OF OTHERS, BE THEY A MINORITY
OR THOSE WHO ARE DOMINANT IN GOVERNMENT.  CANTWELL V. CONNECTICUT,
ANTE, P. 296. 

BUT THE MANIFOLD CHARACTER OF MAN'S RELATIONS MAY BRING HIS
CONCEPTION OF RELIGIOUS DUTY INTO CONFLICT WITH THE SECULAR INTERESTS
OF HIS FELLOW-MEN.  WHEN DOES THE CONSTITUTIONAL GUARANTEE COMPEL
EXEMPTION FROM DOING WHAT SOCIETY THINKS NECESSARY FOR THE PROMOTION OF
SOME GREAT COMMON END, OR FROM A PENALTY FOR CONDUCT WHICH APPEARS
DANGEROUS TO THE GENERAL GOOD?  TO STATE THE PROBLEM IS TO RECALL THE
TRUTH THAT NO SINGLE PRINCIPLE CAN ANSWER ALL OF LIFE'S COMPLEXITIES. 
THE RIGHT TO FREEDOM OF RELIGIOUS BELIEF, HOWEVER DISSIDENT AND HOWEVER
OBNOXIOUS TO THE CHERISHED BELIEFS OF OTHERS - EVEN OF A MAJORITY - IS
ITSELF THE DENIAL OF AN ABSOLUTE.  BUT TO AFFIRM THAT THE FREEDOM TO
FOLLOW CONSCIENCE HAS ITSELF NO LIMITS IN THE LIFE OF A SOCIETY WOULD
DENY THAT VERY PLURALITY OF PRINCIPLES WHICH, AS A MATTER OF HISTORY,
UNDERLIES PROTECTION OF RELIGIOUS TOLERATION.  COMPARE MR. JUSTICE
HOLMES IN HUDSON WATER CO. V. MCCARTER, 209 U.S. 349, 355.  OUR PRESENT
TASK, THEN, AS SO OFTEN THE CASE WITH COURTS, IS TO RECONCILE TWO
RIGHTS IN ORDER TO PREVENT EITHER FROM DESTROYING THE OTHER.  BUT,
BECAUSE IN SAFEGUARDING CONSCIENCE WE ARE DEALING WITH INTERESTS SO
SUBTLE AND SO DEAR, EVERY POSSIBLE LEEWAY SHOULD BE GIVEN TO THE CLAIMS
OF RELIGIOUS FAITH.    IN THE JUDICIAL ENFORCEMENT OF RELIGIOUS FREEDOM
WE ARE CONCERNED WITH A HISTORIC CONCEPT.  SEE MR. JUSTICE CARDOZO IN
HAMILTON V. REGENTS, 293 U.S. AT 265.  THE RELIGIOUS LIBERTY WHICH THE
CONSTITUTION PROTECTS HAS NEVER EXCLUDED LEGISLATION OF GENERAL SCOPE
NOT DIRECTED AGAINST DOCTRINAL LOYALTIES OF PARTICULAR SECTS.  JUDICIAL
NULLIFICATION OF LEGISLATION CANNOT BE JUSTIFIED BY ATTRIBUTING TO THE
FRAMERS OF THE BILL OF RIGHTS VIEWS FOR WHICH THERE IS NO HISTORIC
WARRANT.  CONSCIENTIOUS SCRUPLES HAVE NOT, IN THE COURSE OF THE LONG
STRUGGLE FOR RELIGIOUS TOLERATION, RELIEVED THE INDIVIDUAL FROM
OBEDIENCE TO A GENERAL LAW NOT AIMED AT THE PROMOTION OR RESTRICTION OF
RELIGIOUS BELIEFS.  FN3  THE MERE POSSESSION OF RELIGIOUS CONVICTIONS
WHICH CONTRADICT THE RELEVANT CONCERNS OF A POLITICAL SOCIETY DOES NOT
RELIEVE THE CITIZEN FROM THE DISCHARGE OF POLITICAL RESPONSIBILITIES. 
THE NECESSITY FOR THIS ADJUSTMENT HAS AGAIN AND AGAIN BEEN RECOGNIZED. 
IN A NUMBER OF SITUATIONS THE EXERTION OF POLITICAL AUTHORITY HAS BEEN
SUSTAINED, WHILE BASIC CONSIDERATIONS OF RELIGIOUS FREEDOM HAVE BEEN
LEFT INVIOLATE.  REYNOLDS V. UNITED STATES, 98 U.S. 145; DAVIS V.
BEASON, 133 U.S. 333; SELECTIVE DRAFT LAW CASES, 245 U.S. 366; HAMILTON
V. REGENTS, 293 U.S. 245.  IN ALL THESE CASES THE GENERAL LAWS IN
QUESTION, UPHELD IN THEIR APPLICATION TO THOSE WHO REFUSED OBEDIENCE
FROM RELIGIOUS CONVICTION, WERE MANIFESTATIONS OF SPECIFIC POWERS OF
GOVERNMENT DEEMED BY THE LEGISLATURE ESSENTIAL TO SECURE AND MAINTAIN
THAT ORDERLY, TRANQUIL, AND FREE SOCIETY WITHOUT WHICH RELIGIOUS
TOLERATION ITSELF IS UNATTAINABLE.  NOR DOES THE FREEDOM OF SPEECH
ASSURED BY DUE PROCESS MOVE IN A MORE ABSOLUTE CIRCLE OF IMMUNITY THAN
THAT ENJOYED BY RELIGIOUS FREEDOM.  EVEN IF IT WERE ASSUMED THAT
FREEDOM OF SPEECH GOES BEYOND THE HISTORIC CONCEPT OF FULL OPPORTUNITY
TO UTTER AND TO DISSEMINATE VIEWS, HOWEVER HERETICAL OR OFFENSIVE TO
DOMINANT OPINION, AND INCLUDES FREEDOM FROM CONVEYING WHAT MAY BE
DEEMED AN IMPLIED BUT REJECTED AFFIRMATION, THE QUESTION REMAINS
WHETHER SCHOOL CHILDREN, LIKE THE GOBITIS CHILDREN, MUST BE EXCUSED
FROM CONDUCT REQUIRED OF ALL THE OTHER CHILDREN IN THE PROMOTION OF
NATIONAL COHESION.  WE ARE DEALING WITH AN INTEREST INFERIOR TO NONE IN
THE HIERARCHY OF LEGAL VALUES.  NATIONAL UNITY IS THE BASIS OF NATIONAL
SECURITY.  TO DENY THE LEGISLATURE THE RIGHT TO SELECT APPROPRIATE
MEANS FOR ITS ATTAINMENT PRESENTS A TOTALLY DIFFERENT ORDER OF PROBLEM
FROM THAT OF THE PROPRIETY OF SUBORDINATING THE POSSIBLE UGLINESS OF
LITTERED STREETS TO THE FREE EXPRESSION OF OPINION THROUGH DISTRIBUTION
OF HANDBILLS.  COMPARE SCHNEIDER V. STATE, 308 U.S. 147. 

SITUATIONS LIKE THE PRESENT ARE PHASES OF THE PROFOUNDEST PROBLEM
CONFRONTING A DEMOCRACY - THE PROBLEM WHICH LINCOLN CAST IN MEMORABLE
DILEMMA:  "MUST A GOVERNMENT OF NECESSITY BE TOO STRONG FOR THE
LIBERTIES OF ITS PEOPLE, OR TOO WEAK TO MAINTAIN ITS OWN EXISTENCE?" 
NO MERE TEXTUAL READING OR LOGICAL TALISMAN CAN SOLVE THE DILEMMA.  AND
WHEN THE ISSUE DEMANDS JUDICIAL DETERMINATION, IT IS NOT THE PERSONAL
NOTION OF JUDGES OF WHAT WISE ADJUSTMENT REQUIRES WHICH MUST PREVAIL. 

UNLIKE THE INSTANCES WE HAVE CITED, THE CASE BEFORE US IS NOT
CONCERNED WITH AN EXERTION OF LEGISLATIVE POWER FOR THE PROMOTION OF
SOME SPECIFIC NEED OR INTEREST OF SECULAR SOCIETY - THE PROTECTION OF
THE FAMILY, THE PROMOTION OF HEALTH, THE COMMON DEFENSE, THE RAISING OF
PUBLIC REVENUES TO DEFRAY THE COST OF GOVERNMENT.  BUT ALL THESE
SPECIFIC ACTIVITIES OF GOVERNMENT PRESUPPOSE THE EXISTENCE OF AN
ORGANIZED POLITICAL SOCIETY.  THE ULTIMATE FOUNDATION OF A FREE SOCIETY
IS THE BINDING TIE OF COHESIVE SENTIMENT.  SUCH A SENTIMENT IS FOSTERED
BY ALL THOSE AGENCIES OF THE MIND AND SPIRIT WHICH MAY SERVE TO GATHER
UP THE TRADITIONS OF A PEOPLE, TRANSMIT THEM FROM GENERATION TO
GENERATION, AND THEREBY CREATE THAT CONTINUITY OF A TREASURED COMMON
LIFE WHICH CONSTITUTES A CIVILIZATION.  "WE LIVE BY SYMBOLS."  THE FLAG
IS THE SYMBOL OF OUR NATIONAL UNITY, TRANSCENDING ALL INTERNAL
DIFFERENCES, HOWEVER LARGE, WITHIN THE FRAMEWORK OF THE CONSTITUTION. 
THIS COURT HAS HAD OCCASION TO SAY THAT " ...  THE FLAG IS THE SYMBOL
OF THE NATION'S POWER, THE EMBLEM OF FREEDOM IN ITS TRUEST, BEST
SENSE.  ...  IT SIGNIFIES GOVERNMENT RESTING ON THE CONSENT OF THE
GOVERNED; LIBERTY REGULATED BY LAW; THE PROTECTION OF THE WEAK AGAINST
THE STRONG; SECURITY AGAINST THE EXERCISE OF ARBITRARY POWER; AND
ABSOLUTE SAFETY FOR FREE INSTITUTIONS AGAINST FOREIGN AGGRESSION." 
HALTER V. NEBRASKA, 205 U.S. 34, 43.  AND SEE UNITED STATES V.
GETTYSBURG ELECTRIC RY. CO., 160 U.S. 668.  FN4 

THE CASE BEFORE US MUST BE VIEWED AS THOUGH THE LEGISLATURE OF
PENNSYLVANIA HAD ITSELF FORMALLY DIRECTED THE FLAG-SALUTE FOR THE
CHILDREN OF MINERSVILLE; HAD MADE NO EXEMPTION FOR CHILDREN WHOSE
PARENTS WERE POSSESSED OF CONSCIENTIOUS SCRUPLES LIKE THOSE OF THE
GOBITIS FAMILY; AND HAD INDICATED ITS BELIEF IN THE DESIRABLE ENDS TO
BE SECURED BY HAVING ITS PUBLIC SCHOOL CHILDREN SHARE A COMMON
EXPERIENCE AT THOSE PERIODS OF DEVELOPMENT WHEN THEIR MINDS ARE
SUPPOSEDLY RECEPTIVE TO ITS ASSIMILATION, BY AN EXERCISE APPROPRIATE IN
TIME AND PLACE AND SETTING, AND ONE DESIGNED TO EVOKE IN THEM
APPRECIATION OF THE NATION'S HOPES AND DREAMS, ITS SUFFERINGS AND
SACRIFICES.  THE PRECISE ISSUE, THEN, FOR US TO DECIDE IS WHETHER THE
LEGISLATURES OF THE VARIOUS STATES AND THE AUTHORITIES IN A THOUSAND
COUNTIES AND SCHOOL DISTRICTS OF THIS COUNTRY ARE BARRED FROM
DETERMINING THE APPROPRIATENESS OF VARIOUS MEANS TO EVOKE THAT UNIFYING
SENTIMENT WITHOUT WHICH THERE CAN ULTIMATELY BE NO LIBERTIES, CIVIL OR
RELIGIOUS.  FN5  TO STIGMATIZE LEGISLATIVE JUDGMENT IN PROVIDING FOR
THIS UNIVERSAL GESTURE OF RESPECT FOR THE SYMBOL OF OUR NATIONAL LIFE
IN THE SETTING OF THE COMMON SCHOOL AS A LAWLESS INROAD ON THAT FREEDOM
OF CONSCIENCE WHICH THE CONSTITUTION PROTECTS, WOULD AMOUNT TO NO LESS
THAN THE PRONOUNCEMENT OF PEDAGOGICAL AND PSYCHOLOGICAL DOGMA IN A
FIELD WHERE COURTS POSSESS NO MARKED AND CERTAINLY NO CONTROLLING
COMPETENCE.  THE INFLUENCES WHICH HELP TOWARD A COMMON FEELING FOR THE
COMMON COUNTRY ARE MANIFOLD.  SOME MAY SEEM HARSH AND OTHERS NO DOUBT
ARE FOOLISH.  SURELY, HOWEVER, THE END IS LEGITIMATE.  AND THE
EFFECTIVE MEANS FOR ITS ATTAINMENT ARE STILL SO UNCERTAIN AND SO
UNAUTHENTICATED BY SCIENCE AS TO PRECLUDE US FROM PUTTING THE WIDELY
PREVALENT BELIEF IN FLAG-SALUTING BEYOND THE PALE OF LEGISLATIVE
POWER.  IT MOCKS REASON AND DENIES OUR WHOLE HISTORY TO FIND IN THE
ALLOWANCE OF A REQUIREMENT TO SALUTE OUR FLAG ON FITTING OCCASIONS THE
SEEDS OF SANCTION FOR OBEISANCE TO A LEADER. 

THE WISDOM OF TRAINING CHILDREN IN PATRIOTIC IMPULSES BY THOSE
COMPULSIONS WHICH NECESSARILY PERVADE SO MUCH OF THE EDUCATIONAL
PROCESS IS NOT FOR OUR INDEPENDENT JUDGMENT.  EVEN WERE WE CONVINCED OF
THE FOLLY OF SUCH A MEASURE, SUCH BELIEF WOULD BE NO PROOF OF ITS
UNCONSTITUTIONALITY.  FOR OURSELVES, WE MIGHT BE TEMPTED TO SAY THAT
THE DEEPEST PATRIOTISM IS BEST ENGENDERED BY GIVING UNFETTERED SCOPE TO
THE MOST CROCHETY BELIEFS.  PERHAPS IT IS BEST, EVEN FROM THE
STANDPOINT OF THOSE INTERESTS WHICH ORDINANCES LIKE THE ONE UNDER
REVIEW SEEK TO PROMOTE, TO GIVE TO THE LEAST POPULAR SECT LEAVE FROM
CONFORMITIES LIKE THOSE HERE IN ISSUE.  BUT THE COURTROOM IS NOT THE
ARENA FOR DEBATING ISSUES OF EDUCATIONAL POLICY.  IT IS NOT OUR
PROVINCE TO CHOOSE AMONG COMPETING CONSIDERATIONS IN THE SUBTLE PROCESS
OF SECURING EFFECTIVE LOYALTY TO THE TRADITIONAL IDEALS OF DEMOCRACY,
WHILE RESPECTING AT THE SAME TIME INDIVIDUAL IDIOSYNCRACIES AMONG A
PEOPLE SO DIVERSIFIED IN RACIAL ORIGINS AND RELIGIOUS ALLEGIANCES.  SO
TO HOLD WOULD IN EFFECT MAKE US THE SCHOOL BOARD FOR THE COUNTRY.  THAT
AUTHORITY HAS NOT BEEN GIVEN TO THIS COURT, NOR SHOULD WE ASSUME IT. 

WE ARE DEALING HERE WITH THE FORMATIVE PERIOD IN THE DEVELOPMENT OF
CITIZENSHIP.  GREAT DIVERSITY OF PSYCHOLOGICAL AND ETHICAL OPINION
EXISTS AMONG US CONCERNING THE BEST WAY TO TRAIN CHILDREN FOR THEIR
PLACE IN SOCIETY.  BECAUSE OF THESE DIFFERENCES AND BECAUSE OF
RELUCTANCE TO PERMIT A SINGLE, IRON-CAST SYSTEM OF EDUCATION TO BE
IMPOSED UPON A NATION COMPOUNDED OF SO MANY STRAINS, WE HAVE HELD THAT,
EVEN THOUGH PUBLIC EDUCATION IS ONE OF OUR MOST CHERISHED DEMOCRATIC
INSTITUTIONS, THE BILL OF RIGHTS BARS A STATE FROM COMPELLING ALL
CHILDREN TO ATTEND THE PUBLIC SCHOOLS.  PIERCE V. SOCIETY OF SISTERS,
268 U.S. 510.  BUT IT IS A VERY DIFFERENT THING FOR THIS COURT TO
EXERCISE CENSORSHIP OVER THE CONVICTION OF LEGISLATURES THAT A
PARTICULAR PROGRAM OR EXERCISE WILL BEST PROMOTE IN THE MINDS OF
CHILDREN WHO ATTEND THE COMMON SCHOOLS AN ATTACHMENT TO THE
INSTITUTIONS OF THEIR COUNTRY. 

WHAT THE SCHOOL AUTHORITIES ARE REALLY ASSERTING IS THE RIGHT TO
AWAKEN IN THE CHILD'S MIND CONSIDERATIONS AS TO THE SIGNIFICANCE OF THE
FLAG CONTRARY TO THOSE IMPLANTED BY THE PARENT.  IN SUCH AN ATTEMPT THE
STATE IS NORMALLY AT A DISADVANTAGE IN COMPETING WITH THE PARENT'S
AUTHORITY, SO LONG - AND THIS IS THE VITAL ASPECT OF RELIGIOUS
TOLERATION - AS PARENTS ARE UNMOLESTED IN THEIR RIGHT TO COUNTERACT BY
THEIR OWN PERSUASIVENESS THE WISDOM AND RIGHTNESS OF THOSE LOYALTIES
WHICH THE STATE'S EDUCATIONAL SYSTEM IS SEEKING TO PROMOTE.  EXCEPT
WHERE THE TRANSGRESSION OF CONSTITUTIONAL LIBERTY IS TOO PLAIN FOR
ARGUMENT, PERSONAL FREEDOM IS BEST MAINTAINED - SO LONG AS THE REMEDIAL
CHANNELS OF THE DEMOCRATIC PROCESS REMAIN OPEN AND UNOBSTRUCTED  FN6  -
WHEN IT IS INGRAINED IN A PEOPLE'S HABITS AND NOT ENFORCED AGAINST
POPULAR POLICY BY THE COERCION OF ADJUDICATED LAW.  THAT THE FLAG
SALUTE IS AN ALLOWABLE PORTION OF A SCHOOL PROGRAM FOR THOSE WHO DO NOT
INVOKE CONSCIENTIOUS SCRUPLES IS SURELY NOT DEBATABLE.  BUT FOR US TO
INSIST THAT, THOUGH THE CEREMONY MAY BE REQUIRED, EXCEPTIONAL IMMUNITY
MUST BE GIVEN TO DISSIDENTS, IS TO MAINTAIN THAT THERE IS NO BASIS FOR
A LEGISLATIVE JUDGMENT THAT SUCH AN EXEMPTION MIGHT INTRODUCE ELEMENTS
OF DIFFICULTY INTO THE SCHOOL DISCIPLINE, MIGHT CAST DOUBTS IN THE
MINDS OF THE OTHER CHILDREN WHICH WOULD THEMSELVES WEAKEN THE EFFECT OF
THE EXERCISE. 

THE PRECIOUSNESS OF THE FAMILY RELATION, THE AUTHORITY AND
INDEPENDENCE WHICH GIVE DIGNITY TO PARENTHOOD, INDEED THE ENJOYMENT OF
ALL FREEDOM, PRESUPPOSE THE KIND OF ORDERED SOCIETY WHICH IS SUMMARIZED
BY OUR FLAG.  A SOCIETY WHICH IS DEDICATED TO THE PRESERVATION OF THESE
ULTIMATE VALUES OF CIVILIZATION MAY IN SELF-PROTECTION UTILIZE THE
EDUCATIONAL PROCESS FOR INCULCATING THOSE ALMOST UNCONSCIOUS FEELINGS
WHICH BIND MEN TOGETHER IN A COMPREHENDING LOYALTY, WHATEVER MAY BE
THEIR LESSER DIFFERENCES AND DIFFICULTIES.  THAT IS TO SAY, THE PROCESS
MAY BE UTILIZED SO LONG AS MEN'S RIGHT TO BELIEVE AS THEY PLEASE, TO
WIN OTHERS TO THEIR WAY OF BELIEF, AND THEIR RIGHT TO ASSEMBLE IN THEIR
CHOSEN PLACES OF WORSHIP FOR THE DEVOTIONAL CEREMONIES OF THEIR FAITH,
ARE ALL FULLY RESPECTED. 

JUDICIAL REVIEW, ITSELF A LIMITATION ON POPULAR GOVERNMENT, IS A
FUNDAMENTAL PART OF OUR CONSTITUTIONAL SCHEME.  BUT TO THE LEGISLATURE
NO LESS THAN TO COURTS IS COMMITTED THE GUARDIANSHIP OF DEEPLY
CHERISHED LIBERTIES.  SEE MISSOURI, K. & T. RY. CO. V. MAY, 194 U.S.
267, 270.  WHERE ALL THE EFFECTIVE MEANS OF INDUCING POLITICAL CHANGES
ARE LEFT FREE FROM INTERFERENCE, EDUCATION IN THE ABANDONMENT OF
FOOLISH LEGISLATION IS ITSELF A TRAINING IN LIBERTY.  TO FIGHT OUT THE
WISE USE OF LEGISLATIVE AUTHORITY IN THE FORUM OF PUBLIC OPINION AND
BEFORE LEGISLATIVE ASSEMBLIES RATHER THAN TO TRANSFER SUCH A CONTEST TO
THE JUDICIAL ARENA, SERVES TO VINDICATE THE SELF-CONFIDENCE OF A FREE
PEOPLE.  FN7  REVERSED. 

FN1  RELIANCE IS ESPECIALLY PLACED ON THE FOLLOWING VERSES FROM
CHAPTER 20 OF EXODUS: 

"3.  THOU SHALT HAVE NO OTHER GODS BEFORE ME. 

"4.  THOU SHALT NOT MAKE UNTO THEE ANY GRAVEN IMAGE, OR ANY LIKENESS
OF ANY THING THAT IS IN HEAVEN ABOVE, OR THAT IS IN THE EARTH BENEATH,
OR THAT IS IN THE WATER UNDER THE EARTH: 

"5.  THOU SHALT NOT BOW DOWN THYSELF TO THEM, NOR SERVE THEM:  ...
" 

FN2  LEOLES V. LANDERS, 302 U.S. 656; HERING V. STATE BOARD OF
EDUCATION, 303 U.S. 624; GABRIELLI V. KNICKERBOCKER, 306 U.S. 621;
JOHNSON V. DEERFIELD, 306 U.S. 621; 307 U.S. 650.  COMPARE NEW YORK V.
SANDSTROM, 279 N.Y. 523; 18 N.E.2D 840; NICHOLLS V. MAYOR AND SCHOOL
COMMITTEE OF LYNN, 7 N.E.2D 577(MASS.). 

FN3  COMPARE II WRITINGS OF THOMAS JEFFERSON (FORD ED.)  P. 102; 3
LETTERS AND OTHER WRITINGS OF JAMES MADISON, PP. 274, 307-308; 1 RHODE
ISLAND COLONIAL RECORDS, PP. 378-80; 2 ID. PP. 5-6; WIENER, ROGER
WILLIAMS' CONTRIBUTION TO MODERN THOUGHT, 28 RHODE ISLAND HISTORICAL
SOCIETY COLLECTIONS, NO. 1; ERNST, THE POLITICAL THOUGHT OF ROGER
WILLIAMS, CHAP. VII; W. K. JORDAN, THE DEVELOPMENT OF RELIGIOUS
TOLERATION IN ENGLAND, PASSIM.  SEE COMMONWEALTH V. HERR, 229 PA. 132;
78 A. 68. 

FN4  FOR THE ORIGIN AND HISTORY OF THE AMERICAN FLAG, SEE 8 JOURNALS
OF THE CONTINENTAL CONGRESS, P. 464; 22 ID., PP. 338-40; ANNALS OF
CONGRESS, 15TH CONG., 1ST SESS., VOL. 1, PP. 566 ET SEQ.; ID., VOL. 2,
PP. 1458 ET SEQ. 

FN5  COMPARE BALFOUR, INTRODUCTION TO BAGEHOT'S ENGLISH CONSTITUTION,
P. XXII; SANTAYANA, CHARACTER AND OPINION IN THE UNITED STATES, PP. 110
11. 

FN6  IN CASES LIKE FISKE V. KANSAS, 274 U.S. 380; DE JONGE V. OREGON,
299 U.S. 353; LOVELL V. GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O., 307
U.S. 496, AND SCHNEIDER V. STATE, 308 U.S. 147, THE COURT WAS CONCERNED
WITH RESTRICTIONS CUTTING OFF APPROPRIATE MEANS THROUGH WHICH, IN A
FREE SOCIETY, THE PROCESSES OF POPULAR RULE MAY EFFECTIVELY FUNCTION. 
FN7  IT IS TO BE NOTED THAT THE CONGRESS HAS NOT ENTERED THE FIELD OF
LEGISLATION HERE UNDER CONSIDERATION. 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 

MR. JUSTICE STONE, DISSENTING: 

I THINK THE JUDGMENT BELOW SHOULD BE AFFIRMED. 

TWO YOUTHS, NOW FIFTEEN AND SIXTEEN YEARS OF AGE, ARE BY THE JUDGMENT
OF THIS COURT HELD LIABLE TO EXPULSION FROM THE PUBLIC SCHOOLS AND TO
DENIAL OF ALL PUBLICLY SUPPORTED EDUCATIONAL PRIVILEGES BECAUSE OF
THEIR REFUSAL TO YIELD TO THE COMPULSION OF A LAW WHICH COMMANDS THEIR
PARTICIPATION IN A SCHOOL CEREMONY CONTRARY TO THEIR RELIGIOUS
CONVICTIONS.  THEY AND THEIR FATHER ARE CITIZENS AND HAVE NOT EXHIBITED
BY ANY ACTION OR STATEMENT OF OPINION, ANY DISLOYALTY TO THE GOVERNMENT
OF THE UNITED STATES.  THEY ARE READY AND WILLING TO OBEY ALL ITS LAWS
WHICH DO NOT CONFLICT WITH WHAT THEY SINCERELY BELIEVE TO BE THE HIGHER
COMMANDMENTS OF GOD.  IT IS NOT DOUBTED THAT THESE CONVICTIONS ARE
RELIGIOUS, THAT THEY ARE GENUINE, OR THAT THE REFUSAL TO YIELD TO THE
COMPULSION OF THE LAW IS IN GOOD FAITH AND WITH ALL SINCERITY.  IT
WOULD BE A DENIAL OF THEIR FAITH AS WELL AS THE TEACHINGS OF MOST
RELIGIONS TO SAY THAT CHILDREN OF THEIR AGE COULD NOT HAVE RELIGIOUS
CONVICTIONS. 

THE LAW WHICH IS THUS SUSTAINED IS UNIQUE IN THE HISTORY OF ANGLO
AMERICAN LEGISLATION.  IT DOES MORE THAN SUPPRESS FREEDOM OF SPEECH AND
MORE THAN PROHIBIT THE FREE EXERCISE OF RELIGION, WHICH CONCEDEDLY ARE
FORBIDDEN BY THE FIRST AMENDMENT AND ARE VIOLATIONS OF THE LIBERTY
GUARANTEED BY THE FOURTEENTH.  FOR BY THIS LAW THE STATE SEEKS TO
COERCE THESE CHILDREN TO EXPRESS A SENTIMENT WHICH, AS THEY INTERPRET
IT, THEY DO NOT ENTERTAIN, AND WHICH VIOLATES THEIR DEEPEST RELIGIOUS
CONVICTIONS.  IT IS NOT DENIED THAT SUCH COMPULSION IS A PROHIBITED
INFRINGEMENT OF PERSONAL LIBERTY, FREEDOM OF SPEECH AND RELIGION,
GUARANTEED BY THE BILL OF RIGHTS, EXCEPT IN SO FAR AS IT MAY BE
JUSTIFIED AND SUPPORTED AS A PROPER EXERCISE OF THE STATE'S POWER OVER
PUBLIC EDUCATION.  SINCE THE STATE, IN COMPETITION WITH PARENTS, MAY
THROUGH TEACHING IN THE PUBLIC SCHOOLS INDOCTRINATE THE MINDS OF THE
YOUNG, IT IS SAID THAT IN AID OF ITS UNDERTAKING TO INSPIRE LOYALTY AND
DEVOTION TO CONSTITUTED AUTHORITY AND THE FLAG WHICH SYMBOLIZES IT, IT
MAY COERCE THE PUPIL TO MAKE AFFIRMATION CONTRARY TO HIS BELIEF AND IN
VIOLATION OF HIS RELIGIOUS FAITH.  AND, FINALLY, IT IS SAID THAT SINCE
THE MINERSVILLE SCHOOL BOARD AND OTHERS ARE OF THE OPINION THAT THE
COUNTRY WILL BE BETTER SERVED BY CONFORMITY THAN BY THE OBSERVANCE OF
RELIGIOUS LIBERTY WHICH THE CONSTITUTION PRESCRIBES, THE COURTS ARE NOT
FREE TO PASS JUDGMENT ON THE BOARD'S CHOICE. 

CONCEDEDLY THE CONSTITUTIONAL GUARANTIES OF PERSONAL LIBERTY ARE NOT
ALWAYS ABSOLUTES.  GOVERNMENT HAS A RIGHT TO SURVIVE AND POWERS
CONFERRED UPON IT ARE NOT NECESSARILY SET AT NAUGHT BY THE EXPRESS
PROHIBITIONS OF THE BILL OF RIGHTS.  IT MAY MAKE WAR AND RAISE ARMIES. 
TO THAT END IT MAY COMPEL CITIZENS TO GIVE MILITARY SERVICE, SELECTIVE
DRAFT LAW CASES, 245 U.S. 366, AND SUBJECT THEM TO MILITARY TRAINING
DESPITE THEIR RELIGIOUS OBJECTIONS.  HAMILTON V. REGENTS, 293 U.S.
245.  IT MAY SUPPRESS RELIGIOUS PRACTICES DANGEROUS TO MORALS, AND
PRESUMABLY THOSE ALSO WHICH ARE INIMICAL TO PUBLIC SAFETY, HEALTH AND
GOOD ORDER.  DAVIS V. BEASON, 133 U.S. 333.  BUT IT IS A LONG STEP, AND
ONE WHICH I AM UNABLE TO TAKE, TO THE POSITION THAT GOVERNMENT MAY, AS
A SUPPOSED EDUCATIONAL MEASURE AND AS A MEANS OF DISCIPLINING THE
YOUNG, COMPEL PUBLIC AFFIRMATIONS WHICH VIOLATE THEIR RELIGIOUS
CONSCIENCE. 

THE VERY FACT THAT WE HAVE CONSTITUTIONAL GUARANTIES OF CIVIL
LIBERTIES AND THE SPECIFICITY OF THEIR COMMAND WHERE FREEDOM OF SPEECH
AND OF RELIGION ARE CONCERNED REQUIRE SOME ACCOMMODATION OF THE POWERS
WHICH GOVERNMENT NORMALLY EXERCISES, WHEN NO QUESTION OF CIVIL LIBERTY
IS INVOLVED, TO THE CONSTITUTIONAL DEMAND THAT THOSE LIBERTIES BE
PROTECTED AGAINST THE ACTION OF GOVERNMENT ITSELF.  THE STATE
CONCEDEDLY HAS POWER TO REQUIRE AND CONTROL THE EDUCATION OF ITS
CITIZENS, BUT IT CANNOT BY A GENERAL LAW COMPELLING ATTENDANCE AT
PUBLIC SCHOOLS PRECLUDE ATTENDANCE AT A PRIVATE SCHOOL ADEQUATE IN ITS
INSTRUCTION, WHERE THE PARENT SEEKS TO SECURE FOR THE CHILD THE
BENEFITS OF RELIGIOUS INSTRUCTION NOT PROVIDED BY THE PUBLIC SCHOOL. 
PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510.  AND ONLY RECENTLY WE HAVE
HELD THAT THE STATE'S AUTHORITY TO CONTROL ITS PUBLIC STREETS BY
GENERALLY APPLICABLE REGULATIONS IS NOT AN ABSOLUTE TO WHICH FREE
SPEECH MUST YIELD, AND CANNOT BE MADE THE MEDIUM OF ITS SUPPRESSION,
HAGUE V. COMMITTEE FOR INDUSTRIAL ORGANIZATION, 307 U.S. 496, 514, ET
SEQ., ANY MORE THAN CAN ITS AUTHORITY TO PENALIZE LITTERING OF THE
STREETS BY A GENERAL LAW BE USED TO SUPPRESS THE DISTRIBUTION OF
HANDBILLS AS A MEANS OF COMMUNICATING IDEAS TO THEIR RECIPIENTS. 
SCHNEIDER V. STATE, 308 U.S. 147. 

IN THESE CASES IT WAS POINTED OUT THAT WHERE THERE ARE COMPETING
DEMANDS OF THE INTERESTS OF GOVERNMENT AND OF LIBERTY UNDER THE
CONSTITUTION, AND WHERE THE PERFORMANCE OF GOVERNMENTAL FUNCTIONS IS
BROUGHT INTO CONFLICT WITH SPECIFIC CONSTITUTIONAL RESTRICTIONS, THERE
MUST, WHEN THAT IS POSSIBLE, BE REASONABLE ACCOMMODATION BETWEEN THEM
SO AS TO PRESERVE THE ESSENTIALS OF BOTH AND THAT IT IS THE FUNCTION OF
COURTS TO DETERMINE WHETHER SUCH ACCOMMODATION IS REASONABLY POSSIBLE. 
IN THE CASES JUST MENTIONED THE COURT WAS OF OPINION THAT THERE WERE
WAYS ENOUGH TO SECURE THE LEGITIMATE STATE END WITHOUT INFRINGING THE
ASSERTED IMMUNITY, OR THAT THE INCONVENIENCE CAUSED BY THE INABILITY TO
SECURE THAT END SATISFACTORILY THROUGH OTHER MEANS, DID NOT OUTWEIGH
FREEDOM OF SPEECH OR RELIGION.  SO HERE, EVEN IF WE BELIEVE THAT SUCH
COMPULSIONS WILL CONTRIBUTE TO NATIONAL UNITY, THERE ARE OTHER WAYS TO
TEACH LOYALTY AND PATRIOTISM WHICH ARE THE SOURCES OF NATIONAL UNITY,
THAN BY COMPELLING THE PUPIL TO AFFIRM THAT WHICH HE DOES NOT BELIEVE
AND BY COMMANDING A FORM OF AFFIRMANCE WHICH VIOLATES HIS RELIGIOUS
CONVICTIONS.  WITHOUT RECOURSE TO SUCH COMPULSION THE STATE IS FREE TO
COMPEL ATTENDANCE AT SCHOOL AND REQUIRE TEACHING BY INSTRUCTION AND
STUDY OF ALL IN OUR HISTORY AND IN THE STRUCTURE AND ORGANIZATION OF
OUR GOVERNMENT, INCLUDING THE GUARANTIES OF CIVIL LIBERTY WHICH TEND TO
INSPIRE PATRIOTISM AND LOVE OF COUNTRY.  I CANNOT SAY THAT GOVERNMENT
HERE IS DEPRIVED OF ANY INTEREST OR FUNCTION WHICH IT IS ENTITLED TO
MAINTAIN AT THE EXPENSE OF THE PROTECTION OF CIVIL LIBERTIES BY
REQUIRING IT TO RESORT TO THE ALTERNATIVES WHICH DO NOT COERCE AN
AFFIRMATION OF BELIEF. 

THE GUARANTIES OF CIVIL LIBERTY ARE BUT GUARANTIES OF FREEDOM OF THE
HUMAN MIND AND SPIRIT AND OF REASONABLE FREEDOM AND OPPORTUNITY TO
EXPRESS THEM.  THEY PRESUPPOSE THE RIGHT OF THE INDIVIDUAL TO HOLD SUCH
OPINIONS AS HE WILL AND TO GIVE THEM REASONABLY FREE EXPRESSION, AND
HIS FREEDOM, AND THAT OF THE STATE AS WELL, TO TEACH AND PERSUADE
OTHERS BY THE COMMUNICATION OF IDEAS.  THE VERY ESSENCE OF THE LIBERTY
WHICH THEY GUARANTY IS THE FREEDOM OF THE INDIVIDUAL FROM COMPULSION AS
TO WHAT HE SHALL THINK AND WHAT HE SHALL SAY, AT LEAST WHERE THE
COMPULSION IS TO BEAR FALSE WITNESS TO HIS RELIGION.  IF THESE
GUARANTIES ARE TO HAVE ANY MEANING THEY MUST, I THINK, BE DEEMED TO
WITHHOLD FROM THE STATE ANY AUTHORITY TO COMPEL BELIEF OR THE
EXPRESSION OF IT WHERE THAT EXPRESSION VIOLATES RELIGIOUS CONVICTIONS,
WHATEVER MAY BE THE LEGISLATIVE VIEW OF THE DESIRABILITY OF SUCH
COMPULSION. 

HISTORY TEACHES US THAT THERE HAVE BEEN BUT FEW INFRINGEMENTS OF
PERSONAL LIBERTY BY THE STATE WHICH HAVE NOT BEEN JUSTIFIED, AS THEY
ARE HERE, IN THE NAME OF RIGHTEOUSNESS AND THE PUBLIC GOOD, AND FEW
WHICH HAVE NOT BEEN DIRECTED, AS THEY ARE NOW, AT POLITICALLY HELPLESS
MINORITIES.  THE FRAMERS WERE NOT UNAWARE THAT UNDER THE SYSTEM WHICH
THEY CREATED MOST GOVERNMENTAL CURTAILMENTS OF PERSONAL LIBERTY WOULD
HAVE THE SUPPORT OF A LEGISLATIVE JUDGMENT THAT THE PUBLIC INTEREST
WOULD BE BETTER SERVED BY ITS CURTAILMENT THAN BY ITS CONSTITUTIONAL
PROTECTION.  I CANNOT CONCEIVE THAT IN PRESCRIBING, AS LIMITATIONS UPON
THE POWERS OF GOVERNMENT, THE FREEDOM OF THE MIND AND SPIRIT SECURED BY
THE EXPLICIT GUARANTIES OF FREEDOM OF SPEECH AND RELIGION, THEY
INTENDED OR RIGHTLY COULD HAVE LEFT ANY LATITUDE FOR A LEGISLATIVE
JUDGMENT THAT THE COMPULSORY EXPRESSION OF BELIEF WHICH VIOLATES
RELIGIOUS CONVICTIONS WOULD BETTER SERVE THE PUBLIC INTEREST THAN THEIR
PROTECTION.  THE CONSTITUTION MAY WELL ELICIT EXPRESSIONS OF LOYALTY TO
IT AND TO THE GOVERNMENT WHICH IT CREATED, BUT IT DOES NOT COMMAND SUCH
EXPRESSIONS OR OTHERWISE GIVE ANY INDICATION THAT COMPULSORY
EXPRESSIONS OF LOYALTY PLAY ANY SUCH PART IN OUR SCHEME OF GOVERNMENT
AS TO OVERRIDE THE CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH AND
RELIGION.  AND WHILE SUCH EXPRESSIONS OF LOYALTY, WHEN VOLUNTARILY
GIVEN, MAY PROMOTE NATIONAL UNITY, IT IS QUITE ANOTHER MATTER TO SAY
THAT THEIR COMPULSORY EXPRESSION BY CHILDREN IN VIOLATION OF THEIR OWN
AND THEIR PARENTS' RELIGIOUS CONVICTIONS CAN BE REGARDED AS PLAYING SO
IMPORTANT A PART IN OUR NATIONAL UNITY AS TO LEAVE SCHOOL BOARDS FREE
TO EXACT IT DESPITE THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF
RELIGION.  THE VERY TERMS OF THE BILL OF RIGHTS PRECLUDE, IT SEEMS TO
ME, ANY RECONCILIATION OF SUCH COMPULSIONS WITH THE CONSTITUTIONAL
GUARANTIES BY A LEGISLATIVE DECLARATION THAT THEY ARE MORE IMPORTANT TO
THE PUBLIC WELFARE THAN THE BILL OF RIGHTS. 

BUT EVEN IF THIS VIEW BE REJECTED AND IT IS CONSIDERED THAT THERE IS
SOME SCOPE FOR THE DETERMINATION BY LEGISLATURES WHETHER THE CITIZEN
SHALL BE COMPELLED TO GIVE PUBLIC EXPRESSION OF SUCH SENTIMENTS
CONTRARY TO HIS RELIGION, I AM NOT PERSUADED THAT WE SHOULD REFRAIN
FROM PASSING UPON THE LEGISLATIVE JUDGMENT "AS LONG AS THE REMEDIAL
CHANNELS OF THE DEMOCRATIC PROCESS REMAIN OPEN AND UNOBSTRUCTED."  THIS
SEEMS TO ME NO LESS THAN THE SURRENDER OF THE CONSTITUTIONAL PROTECTION
OF THE LIBERTY OF SMALL MINORITIES TO THE POPULAR WILL.  WE HAVE
PREVIOUSLY POINTED TO THE IMPORTANCE OF A SEARCHING JUDICIAL INQUIRY
INTO THE LEGISLATIVE JUDGMENT IN SITUATIONS WHERE PREJUDICE AGAINST
DISCRETE AND INSULAR MINORITIES MAY TEND TO CURTAIL THE OPERATION OF
THOSE POLITICAL PROCESSES ORDINARILY TO BE RELIED ON TO PROTECT
MINORITIES.  SEE UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144,
152, NOTE 4.  AND UNTIL NOW WE HAVE NOT HESITATED SIMILARLY TO
SCRUTINIZE LEGISLATION RESTRICTING THE CIVIL LIBERTY OF RACIAL AND
RELIGIOUS MINORITIES ALTHOUGH NO POLITICAL PROCESS WAS AFFECTED.  MEYER
V. NEBRASKA, 262 U.S. 390; PIERCE V. SOCIETY OF SISTERS, SUPRA;
FARRINGTON V. TOKUSHIGE, 273 U.S. 284.  HERE WE HAVE SUCH A SMALL
MINORITY ENTERTAINING IN GOOD FAITH A RELIGIOUS BELIEF, WHICH IS SUCH A
DEPARTURE FROM THE USUAL COURSE OF HUMAN CONDUCT, THAT MOST PERSONS ARE
DISPOSED TO REGARD IT WITH LITTLE TOLERATION OR CONCERN.  IN SUCH
CIRCUMSTANCES CAREFUL SCRUTINY OF LEGISLATIVE EFFORTS TO SECURE
CONFORMITY OF BELIEF AND OPINION BY A COMPULSORY AFFIRMATION OF THE
DESIRED BELIEF, IS ESPECIALLY NEEDFUL IF CIVIL RIGHTS ARE TO RECEIVE
ANY PROTECTION.  TESTED BY THIS STANDARD, I AM NOT PREPARED TO SAY THAT
THE RIGHT OF THIS SMALL AND HELPLESS MINORITY, INCLUDING CHILDREN
HAVING A STRONG RELIGIOUS CONVICTION, WHETHER THEY UNDERSTAND ITS
NATURE OR NOT, TO REFRAIN FROM AN EXPRESSION OBNOXIOUS TO THEIR
RELIGION, IS TO BE OVERBORNE BY THE INTEREST OF THE STATE IN
MAINTAINING DISCIPLINE IN THE SCHOOLS. 

THE CONSTITUTION EXPRESSES MORE THAN THE CONVICTION OF THE PEOPLE
THAT DEMOCRATIC PROCESSES MUST BE PRESERVED AT ALL COSTS.  IT IS ALSO
AN EXPRESSION OF FAITH AND A COMMAND THAT FREEDOM OF MIND AND SPIRIT
MUST BE PRESERVED, WHICH GOVERNMENT MUST OBEY, IF IT IS TO ADHERE TO
THAT JUSTICE AND MODERATION WITHOUT WHICH NO FREE GOVERNMENT CAN
EXIST.  FOR THIS REASON IT WOULD SEEM THAT LEGISLATION WHICH OPERATES
TO REPRESS THE RELIGIOUS FREEDOM OF SMALL MINORITIES, WHICH IS
ADMITTEDLY WITHIN THE SCOPE OF THE PROTECTION OF THE BILL OF RIGHTS,
MUST AT LEAST BE SUBJECT TO THE SAME JUDICIAL SCRUTINY AS LEGISLATION
WHICH WE HAVE RECENTLY HELD TO INFRINGE THE CONSTITUTIONAL LIBERTY OF
RELIGIOUS AND RACIAL MINORITIES. 

WITH SUCH SCRUTINY I CANNOT SAY THAT THE INCONVENIENCES WHICH MAY
ATTEND SOME SENSIBLE ADJUSTMENT OF SCHOOL DISCIPLINE IN ORDER THAT THE
RELIGIOUS CONVICTIONS OF THESE CHILDREN MAY BE SPARED, PRESENTS A
PROBLEM SO MOMENTOUS OR PRESSING AS TO OUTWEIGH THE FREEDOM FROM
COMPULSORY VIOLATION OF RELIGIOUS FAITH WHICH HAS BEEN THOUGHT WORTHY
OF CONSTITUTIONAL PROTECTION. 
..END :

















U.S. V. SUMMERLIN, 310 U.S. 414 


NO. 715.  ARGUED APRIL 29, 1940.  - DECIDED MAY 27, 1940.  - 140 FLA.
475 - 191 SO. 842, REVERSED. 


1.  A CLAIM ASSIGNED TO THE FEDERAL HOUSING ADMINISTRATOR BECAME A
CLAIM OF, AND ENFORCIBLE BY, THE UNITED STATES.  ACT OF JUNE 27, 1934. 
P. 416. 

2.  WHETHER THE UNITED STATES SUES IN ITS OWN COURT OR IN A STATE
COURT, IT IS NOT BOUND BY STATE STATUTES OF LIMITATIONS OR SUBJECT TO
THE DEFENSE OF LACHES.  P. 416. 

THE FACT THAT THE CLAIM IN QUESTION WAS ACQUIRED BY THE UNITED STATES
UNDER THE NATIONAL HOUSING ACT DOES NOT TAKE THE CASE OUT OF THE RULE. 
P. 416. 

3.  A STATE STATUTE PROVIDING THAT CLAIMS AGAINST A DECEDENT'S ESTATE
NOT FILED WITHIN A SPECIFIED PERIOD SHALL BE VOID MIGHT DEPRIVE THE
STATE PROBATE COURT OF JURISDICTION TO RECEIVE AND PASS UPON A CLAIM OF
THE UNITED STATES, BUT CAN NOT AFFECT ITS VALIDITY.  P. 417. 

UNITED STATES V. SUMMERLIN, ANCILLARY ADMINISTRATRIX. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

CERTIORARI, 309 U.S. 647, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DECLARING A CLAIM OF THE UNITED STATES AGAINST A DECEDENT'S ESTATE VOID
BECAUSE NOT FILED WITHIN THE TIME PRESCRIBED BY A STATE STATUTE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

BY A SERIES OF TRANSACTIONS, WHICH IT IS UNNECESSARY TO REVIEW, THE
FEDERAL HOUSING ADMINISTRATOR, ACTING ON BEHALF OF THE UNITED STATES,
BECAME THE ASSIGNEE OF A CLAIM AGAINST THE ESTATE OF ONE J. F. ANDREW,
DECEASED.  RESPONDENT WAS APPOINTED ANCILLARY ADMINISTRATRIX OF THAT
ESTATE BY THE COUNTY JUDGE OF POLK COUNTY, FLORIDA.  RESPONDENT, ON
AUGUST 13, 1937, GAVE NOTICE BY PUBLICATION TO THE CREDITORS OF THE
ESTATE TO FILE PROOF OF THEIR CLAIMS WITHIN EIGHT MONTHS AS REQUIRED BY
THE STATE STATUTE. 

THE UNITED STATES FILED ITS CLAIM IN THE OFFICE OF THE COUNTY JUDGE
ON JULY 1, 1938, WITH A PETITION ASKING THAT THE CLAIM BE ALLOWED WITH
THE PRIORITY ACCORDED BY THE FEDERAL STATUTES (31 U.S.C. 191, 192) AND
ALSO ASSERTING THAT THE STATE STATUTE AS TO THE TIME FOR FILING CLAIMS
DID NOT APPLY TO CLAIMS OF THE UNITED STATES.  THE COUNTY JUDGE DENIED
THE PETITION, HOLDING THAT THE STATE STATUTE WAS APPLICABLE AND FURTHER
ADJUDGING THAT THE CLAIM OF THE UNITED STATES BE "DISALLOWED AS A CLAIM
AGAINST THE ESTATE" OF THE DECEDENT. 

THE UNITED STATES APPEALED TO THE CIRCUIT COURT FOR POLK COUNTY,
WHERE THE ORDER OF THE COUNTY JUDGE WAS IN ALL RESPECTS AFFIRMED.  THE
JUDGMENT EXPLICITLY DECLARED THE CLAIM OF THE UNITED STATES TO BE
"VOID," BECAUSE NOT FILED WITHIN THE TIME PRESCRIBED.  AN APPEAL TO THE
SUPREME COURT OF FLORIDA RESULTED IN AFFIRMANCE OF THE JUDGMENT OF THE
CIRCUIT COURT.  140 FLA. 475; 191 SO. 842.  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE QUESTION.  309 U.S. 647. 

THE STATUTE OF FLORIDA (SEC. 5541(92) COMPILED GENERAL LAWS OF 1927,
SUPP.) PROVIDES: 

"NO CLAIM OR DEMAND, WHETHER DUE OR NOT, DIRECT OR CONTINGENT,
LIQUIDATED OR UNLIQUIDATED, OR CLAIM FOR PERSONAL PROPERTY IN THE
POSSESSION OF THE PERSONAL REPRESENTATIVE OR FOR DAMAGES, SHALL BE
VALID OR BINDING UPON AN ESTATE, OR UPON THE PERSONAL REPRESENTATIVE
THEREOF, OR UPON ANY HEIR, LEGATEE, OR DEVISEE OF THE DECEDENT UNLESS
THE SAME SHALL BE IN WRITING AND CONTAIN THE PLACE OF RESIDENCE AND
POST OFFICE ADDRESS OF THE CLAIMANT AND SHALL BE SWORN TO BY THE
CLAIMANT, HIS AGENT OR ATTORNEY, AND BE FILED IN THE OFFICE OF THE
COUNTY JUDGE GRANTING LETTERS.  ANY SUCH CLAIM OR DEMAND NOT SO FILED
WITHIN EIGHT MONTHS FROM THE TIME OF THE FIRST PUBLICATION OF THE
NOTICE TO CREDITORS SHALL BE VOID EVEN THOUGH THE PERSONAL
REPRESENTATIVE HAS RECOGNIZED SUCH CLAIM OR DEMAND BY PAYING A PORTION
THEREOF OR INTEREST THEREON OR OTHERWISE:  ..." 

THE CLAIM ASSIGNED TO THE FEDERAL HOUSING ADMINISTRATOR ACTING ON
BEHALF OF THE UNITED STATES BECAME THE CLAIM OF THE UNITED STATES, AND
THE UNITED STATES THEREUPON BECAME ENTITLED TO ENFORCE IT.  ACT OF JUNE
27, 1934, 48 STAT. 1246.  COMPARE GRAVES V. NEW YORK EX REL. O'KEEFE,
306 U.S. 466, 477; PITTMAN V. HOME OWNERS' LOAN CORP., 308 U.S. 21, 32,
33. 

IT IS WELL SETTLED THAT THE UNITED STATES IS NOT BOUND BY STATE
STATUTES OF LIMITATION OR SUBJECT TO THE DEFENSE OF LACHES IN ENFORCING
ITS RIGHTS.  UNITED STATES V. THOMPSON, 98 U.S. 486; UNITED STATES V.
NASHVILLE, C. & ST. L. RY. CO., 118 U.S. 120, 125, 126; STANLEY V.
SCHWALBY, 147 U.S. 508, 514, 515; GUARANTY TRUST CO. V. UNITED STATES,
304 U.S. 126, 132; BOARD OF COMMISSIONERS V. UNITED STATES, 308 U.S.
343, 351.  THE SAME RULE APPLIES WHETHER THE UNITED STATES BRINGS ITS
SUIT IN ITS OWN COURTS OR IN A STATE COURT.  DAVIS V. CORONA COAL CO.,
265 U.S. 219, 222, 223. 

WE ARE OF THE OPINION THAT THE FACT THAT THE CLAIM WAS ACQUIRED BY
THE UNITED STATES THROUGH OPERATIONS UNDER THE NATIONAL HOUSING ACT
DOES NOT TAKE THE CASE OUT OF THIS RULE.  THE STATE COURT TREATED THE
CASE AS IN THE SAME CATEGORY AS ONE OF "STATUTES PROVIDING FOR
CONVEYANCING AND MARKETING NEGOTIABLE INSTRUMENTS, AND CONDUCTING OTHER
BUSINESS RELATIONS."  BUT THIS IS NOT A CASE RELATING TO THE
APPLICATION OF THE LAW MERCHANT AS TO THE TRANSFER OF NEGOTIABLE PAPER
AND THE DILIGENCE NECESSARY TO CHARGE AN ENDORSER OR AS TO THE
INCURRING BY THE UNITED STATES OF CERTAIN RESPONSIBILITIES BY BECOMING
A PARTY TO SUCH PAPER.  UNITED STATES V. BARKER, 12 WHEAT.  559; COOKE
V. UNITED STATES, 91 U.S. 389, 396.  EVEN AS A HOLDER OF SUCH PAPER, AS
E.G. NEGOTIABLE BONDS, THE UNITED STATES SUING THE MAKER IS NOT BOUND
BY A STATE STATUTE OF LIMITATIONS.  UNITED STATES V. NASHVILLE, C. &
ST. L. RY. CO., SUPRA.  WHEN THE UNITED STATES BECOMES ENTITLED TO A
CLAIM, ACTING IN ITS GOVERNMENTAL CAPACITY, AND ASSERTS ITS CLAIM IN
THAT RIGHT, IT CANNOT BE DEEMED TO HAVE ABDICATED ITS GOVERNMENTAL
AUTHORITY SO AS TO BECOME SUBJECT TO A STATE STATUTE PUTTING A TIME
LIMIT UPON ENFORCEMENT.  CHESAPEAKE & DELAWARE CANAL CO. V. UNITED
STATES, 250 U.S. 123, 126, 127. 

THE STATE COURT, HOWEVER, HAS SAID THAT THE STATUTE IN QUESTION IS
NOT A STATUTE OF LIMITATIONS, BUT RATHER A STATUTE OF "NON-CLAIM" FOR
THE ORDERLY AND EXPEDITIOUS SETTLEMENT OF DECEDENTS' ESTATES. 
PRESUMABLY THE COURT REFERS TO THE PROVISION OF THE STATUTE THAT IF A
CLAIM IS NOT FILED WITHIN THE SPECIFIED PERIOD IT "SHALL BE VOID EVEN
THOUGH THE PERSONAL REPRESENTATIVE HAS RECOGNIZED SUCH CLAIM OR DEMAND
BY PAYING A PORTION THEREOF OR INTEREST THEREON OR OTHERWISE." 

IF THIS WERE A STATUTE MERELY DETERMINING THE LIMITS OF THE
JURISDICTION OF A PROBATE COURT AND THUS PROVIDING THAT THE COUNTY
JUDGE SHOULD HAVE NO JURISDICTION TO RECEIVE OR PASS UPON CLAIMS NOT
FILED WITHIN THE EIGHT MONTHS, WHILE LEAVING AN OPORTUNITY TO THE
UNITED STATES OTHERWISE TO ENFORCE ITS CLAIM, THE AUTHORITY OF THE
STATE TO IMPOSE SUCH A LIMITATION UPON ITS PROBATE COURT MIGHT BE
CONCEDED.  BUT IF THE STATUTE, AS SUSTAINED BY THE STATE COURT,
UNDERTAKES TO INVALIDATE THE CLAIM OF THE UNITED STATES, SO THAT IT
CANNOT BE ENFORCED AT ALL, BECAUSE NOT FILED WITHIN EIGHT MONTHS, WE
THINK THE STATUTE IN THAT SENSE TRANSGRESSED THE LIMITS OF STATE
POWER.  DAVIS V. CORONA COAL CO., SUPRA. 

MR. JUSTICE STORY HAD OCCASION TO CONSIDER THE APPLICATION TO THE
GOVERNMENT OF A STATE STATUTE PURPORTING TO BAR CLAIMS AGAINST
DECEDENTS' ESTATES IN UNITED STATES V. HOAR, FED. CAS. NO. 15,373; 2
MASON 311.  THERE AN ACTION WAS BROUGHT BY THE UNITED STATES AGAINST AN
ADMINISTRATOR OF AN ESTATE AND THE DEFENDANT PLEADED THE GENERAL
STATUTE OF LIMITATION OF MASSACHUSETTS AS TO PERSONAL ACTIONS AND ALSO
THE PARTICULAR STATUTE LIMITING SUITS AGAINST EXECUTORS AND
ADMINISTRATORS TO FOUR YEARS AFTER THE ACCEPTANCE OF THE TRUST.  MR.
JUSTICE STORY THOUGHT IT CLEAR THAT THE DEFENSE OF THESE STATUTES OF
LIMITATIONS COULD NOT AVAIL.  THE QUESTION WHETHER A FURTHER DEFENSE OF
PLENE ADMINISTRAVIT WAS GOOD, THAT IS, WHETHER A DISTRIBUTION OF
SURPLUS ASSETS AFTER THE PAYMENT OF ALL KNOWN DEBTS AMONG THE HEIRS,
EITHER VOLUNTARY OR UNDER A PROBATE DECREE, WOULD PROTECT THE
ADMINISTRATOR FROM SUIT BY THE UNITED STATES, IT WAS THOUGHT NOT
NECESSARY TO DECIDE.  NOR HAVE WE SUCH A QUESTION HERE. 

WE HOLD THAT THE STATE STATUTE IN THIS INSTANCE REQUIRING CLAIMS TO
BE FILED WITHIN EIGHT MONTHS CANNOT DEPRIVE THE UNITED STATES OF ITS
RIGHT TO ENFORCE ITS CLAIM; THAT THE UNITED STATES STILL HAS ITS RIGHT
OF ACTION AGAINST THE ADMINISTRATOR, EVEN THOUGH THE PROBATE COURT IS
TO BE REGARDED AS HAVING NO JURISDICTION TO RECEIVE A CLAIM AFTER THE
EXPIRATION OF THE SPECIFIED PERIOD. 

SO FAR AS THE JUDGMENT GOES BEYOND THE QUESTION OF THE JURISDICTION
OF THE PROBATE COURT AND PURPORTS TO ADJUDGE THAT THE CLAIM OF THE
UNITED STATES IS VOID AS A CLAIM AGAINST THE ESTATE OF THE DECEDENT
BECAUSE OF FAILURE TO COMPLY WITH THE STATUTE, THE JUDGMENT IS
REVERSED. 

THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED. 
..END :




















DELAWARE RIVER COMM'N V. COLBURN, 310 U.S. 419 


NO. 563.  ARGUED FEBRUARY 26, 1940.  - DECIDED MAY 27, 1940.  - 123
N.J.L. 197 - 8 A.2D 563, REVERSED. 


1.  THE CONSTRUCTION OF A COMPACT MADE BETWEEN TWO STATES AND
SANCTIONED BY AN ACT OF CONGRESS INVOLVES A FEDERAL "TITLE, RIGHT,
PRIVILEGE OR IMMUNITY" WHICH, WHEN "SPECIALLY SET UP AND CLAIMED" IN A
STATE COURT, MAY BE REVIEWED UNDER SEC. 237(B) OF THE JUDICIAL CODE. 
P. 427. 

2.  THE COMPACT OF 1934 BETWEEN NEW JERSEY AND PENNSYLVANIA CREATED A
COMMISSION TO PERFORM STATE FUNCTIONS, INCLUDING THE LOCATION,
CONSTRUCTION AND OPERATION OF BRIDGES OVER THE DELAWARE RIVER; TO THAT
END IT AUTHORIZED THE COMMISSION TO ACQUIRE REAL PROPERTY BY PURCHASE
OR EMINENT DOMAIN, DEFINING REAL PROPERTY AS EMBRACING "INTERESTS IN
LAND," INCLUDING "CLAIMS FOR DAMAGES TO REAL ESTATE," AND PROVIDED
THAT, WHERE RESORT TO EMINENT DOMAIN WAS NEEDFUL FOR THE ACQUISITION OF
SUCH INTERESTS, THE EXERCISE OF THE POWER SHOULD BE "IN THE MANNER
PROVIDED" BY AN ACT OF NEW JERSEY OF APRIL 1, 1912, AS AMENDED.  HELD: 

(1)  THAT, BEYOND PAYMENT FOR THE LAND OR INTERESTS THEREIN OF THE
PRICE AGREED UPON BY THE COMMISSION OR FIXED BY PROCEEDINGS IN EMINENT
DOMAIN, THE COMPACT IMPOSES NO OBLIGATION ON THE COMMISSION TO
COMPENSATE FOR DAMAGES INFLICTED BY ITS ACTS, BUT LEAVES THE COMMISSION
TO SUCH LIABILITY AS IS IMPOSED BY THE LAW OF THE STATE WITHIN WHICH
THE COMMISSION ACTS, INCLUDING THE ACT OF 1912, AS AMENDED, IN SO FAR
AS THE COMPACT HAS MADE THAT ACT APPLICABLE.  P. 428. 

(2)  UNDER THE GENERALLY APPLICABLE DECISIONS AND STATUTES OF NEW
JERSEY THE COMMISSION IS NOT LIABLE TO PAY SUCH CONSEQUENTIAL DAMAGES. 
P. 430. 

(3)  THE NEW JERSEY STATUTE OF 1912, MENTIONED IN THE COMPACT, WAS BY
ITS TERMS APPLICABLE TO A COMMISSION OTHER THAN PETITIONER, AND
AUTHORIZED THE FORMER TO ACQUIRE BY A PRESCRIBED PROCEDURE, EXISTING
BRIDGES BY PURCHASE OR EMINENT DOMAIN AND TO DETERMINE "DAMAGES FOR
PROPERTY TAKEN, INJURED OR DESTROYED."  P. 429. 

(4)  UNDER THE COMPACT, THE NEW JERSEY STATUTE OF 1912 IS EXCLUDED
FROM THE OPERATION OF THE COMPACT EXCEPT AS IT AFFORDS A MANNER OR
PROCEDURE FOR EXERCISING THE RIGHT OF EMINENT DOMAIN, WHICH IS CALLED
INTO OPERATION BY THE COMPACT ONLY IF THE COMMISSION IS UNABLE TO
ACQUIRE NEEDED PROPERTY BY PURCHASE AND THEN ONLY AS A MEANS OF FIXING
THE COMPENSATION WHICH UNDER THE COMPACT THE COMMISSION IS REQUIRED TO
PAY.  P. 431. 

3.  EVEN THOUGH IT WERE INTENDED BY THE COMPACT TO ADOPT THE RULE OF
DAMAGES PRESCRIBED BY ART. XVI, SEC. 8 OF THE PENNSYLVANIA CONSTITUTION
(1874), WHICH PROVIDES THAT "MUNICIPAL AND OTHER CORPORATIONS AND
INDIVIDUALS INVESTED WITH THE PRIVILEGE OF TAKING PRIVATE PROPERTY FOR
PUBLIC USE SHALL MAKE JUST COMPENSATION FOR PROPERTY TAKEN, INJURED OR
DESTROYED BY THE CONSTRUCTION OR ENLARGEMENT OF THEIR WORKS, HIGHWAYS
OR IMPROVEMENTS  ...  ," THAT SECTION, AS CONSTRUED BY THE SUPREME
COURT OF PENNSYLVANIA BEFORE THE ADOPTION OF THE COMPACT, APPLIES ONLY
WHERE THERE IS A TAKING BY EMINENT DOMAIN, AND, IN THE ABSENCE OF
STATUTE, GIVES NO RIGHT OF RECOVERY FROM A LANDOWNER FOR CONSEQUENTIAL
DAMAGES RESULTING FROM STRUCTURES ERECTED WHOLLY ON HIS OWN LAND
WHETHER ACQUIRED BY PURCHASE OR BY EMINENT DOMAIN.  P. 432. 

DELAWARE RIVER JOINT TOLL BRIDGE COMMISSION V. COLBURN ET AL. 

CERTIORARI TO THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

CERTIORARI, 308 U.S. 549, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
SUSTAINING A SPECIAL VERDICT AND AWARDING A PEREMPTORY MANDAMUS (119
N.J.L. 600; 197 A. 896) REQUIRING THE BRIDGE COMMISSION TO PAY
CONSEQUENTIAL DAMAGES RESULTING FROM THE CONSTRUCTION OF A BRIDGE
ABUTMENT ON LAND PURCHASED BY THE COMMISSION, OR TO TAKE FURTHER
PROCEEDINGS FOR A DETERMINATION OF THE AMOUNT. 

THE MEANING AND APPLICATION OF THE COMPACT PRESENT A FEDERAL QUESTION
FOR ULTIMATE ADJUDICATION BY THIS COURT.  U.S. CONST., ART. III, SEC.
2; HINDERLIDER V. LA PLATA RIVER & CHERRY CREEK DITCH CO., 304 U.S. 92,
110; KENTUCKY V. INDIANA, 281 U.S. 163; PENNSYLVANIA V. WHEELING &
BELMONT BRIDGE CO., 13 HOW.  518; GREEN V. BIDDLE, 8 WHEAT.  1. 

EVEN THOUGH THE CONSTRUCTION OF INTERSTATE COMPACTS INVOLVES
DETERMINATION OF THE EFFECT OF THE LEGISLATION OF EITHER STATE, THIS
COURT HAS THE AUTHORITY AND DUTY TO DETERMINE FOR ITSELF ALL QUESTIONS
PERTAINING TO THE COMPACT. 

THE TWO STATES ARE NOT NECESSARY PARTIES TO THIS REVIEW.  HINDERLIDER
V. LA PLATA RIVER & CHERRY CREEK DITCH CO., SUPRA. 

THE COMPACT IS TO BE GOVERNED NOT BY THE STATUTES OR JUDICIAL
DECISIONS OF EITHER STATE, OR BY DECISIONS CONSTRUING FEDERAL STATUTES,
BUT BY THE "FEDERAL COMMON LAW."  HINDERLIDER CASE, SUPRA; SMITH V.
ALABAMA, 124 U.S. 465, 477, 478. 

THE COMPACT IS A CONTRACT, AND THE RULE OF LAW IS THAT CONTRACTS TO
WHICH THE STATE IS A PARTY SHOULD BE CONSTRUED IN FAVOR OF THE STATE. 
PANAMA-PACIFIC INTERNATIONAL EXPOSITION CO. V. PANAMA-PACIFIC
INTERNATIONAL COMMISSION, 178 CAL. 746; 174 P. 890. 

THE COMPACT DID NOT GIVE RESPONDENTS A RIGHT TO CONSEQUENTIAL
DAMAGES. 

IN NEW JERSEY THERE WAS AND IS NO CONSTITUTIONAL PROVISION FOR
DAMAGES FOR "INJURY" TO PROPERTY, BUT THERE IS A PROVISION ONLY FOR
DAMAGES FOR "TAKING" (ART. I, SEC. 16). 

UNDER THE NEW JERSEY DECISIONS THERE WAS NO RIGHT TO LIGHT, AIR AND
VIEW OVER OTHER LANDS, NOR IN EMINENT DOMAIN PROCEEDINGS WAS THERE ANY
RIGHT TO AN AWARD FOR CONSEQUENTIAL DAMAGES FOR OBSTRUCTION OF VIEW,
LIMITATION OF LIGHT AND AIR, OR FROM THE CLOSING OF STREETS.  BARNETT
V. JOHNSON, 15 N.J. EQ. 481; HARWOOD V. TOMPKINS, 24 N.J.L. 425; HAYDEN
V. DUTCHER, 31 N.J. EQ. 217; NEWARK V. HATT, 79 N.J.L. 548; R. & A.
REALTY CORP. V. PENNSYLVANIA R. CO., 16 N.J. MISC. REPS.  537. 

THE PENNSYLVANIA CONSTITUTION PROVIDES FOR DAMAGES TO PROPERTY
"INJURED" AS WELL AS DAMAGES FOR "TAKING," (ART. 16, SEC. 8). 

THE COURTS OF PENNSYLVANIA HAVE HELD THAT EVEN UNDER THEIR
CONSTITUTION THERE COULD BE NO RECOVERY BY ADJOINING LANDOWNERS FOR
CONSEQUENTIAL DAMAGES UNLESS, IN ADDITION TO THE CONSTITUTIONAL
PROVISION, THERE WAS A STATUTE EXPRESSLY GIVING A RIGHT THERETO.  IN RE
SOLDIERS AND SAILORS MEMORIAL BRIDGE, 308 PA. 487; HOFFER V. READING
CO., 287 PA. 120; WESTMORELAND C. & C. CO. V. PUBLIC SERVICE
COMMISSION, 294 PA. 451; PENNSYLVANIA R. CO. V. MARCHANT, 119 PA. 541;
AFF'D 153 U.S. 380; PENNSYLVANIA R. CO. V. LIPPINCOTT, 116 PA. 472;
HOLMES V. PUBLIC SERVICE COMMISSION, 79 PA. SUP. CT. 381. 

IN OTHER JURISDICTIONS, EVEN WITH CONSTITUTIONAL PROVISIONS SIMILAR
TO THOSE OF PENNSYLVANIA AND WITH STATUTORY PROVISIONS SIMILAR TO THE
LANGUAGE OF THE COMPACT IN QUESTION, INJURIES OF THE KIND HERE INVOLVED
WERE HELD TO BE DAMNUM ABSQUE INJURIA.  CF. HOWELL V. NEW YORK, N.H. &
H.R. CO., 221 MASS. 169; EACHUS V. LOS ANGELES R. CO., 103 CAL. 614,
617. 

THE "FEDERAL COMMON LAW," UNDER WHICH THE COMPACT IS TO BE CONSTRUED,
ADOPTS THE GENERAL COMMON LAW, SMITH V. ALABAMA, 124 U.S. 465; AND IN
CONSTRUING THE COMPACT BETWEEN PENNSYLVANIA AND NEW JERSEY, BOTH OF
WHICH ARE COMMON LAW STATES, THE SOUND AND SAFE PRINCIPLES OF THE
GENERAL COMMON LAW SHOULD BE APPLIED. 

THE COMPACT SHOULD BE STRICTLY CONSTRUED AGAINST THE ENLARGEMENT OF
THE COMMON LAW PRINCIPLE.  SHAW V. RAILROAD CO., 101 U.S. 557. 

THE COMPACT FAILS TO BRING TO LIGHT ANY INTENTION TO CREATE NEW,
UNDEFINED AND UNLIMITED RIGHTS TO CONSEQUENTIAL DAMAGES.  THE
DEFINITION IN THE COMPACT OF THE TERM "REAL PROPERTY" AS INCLUDING
"CLAIMS FOR DAMAGE TO REAL ESTATE" RELATES ONLY TO THAT WHICH THE
BRIDGE COMMISSION MAY ACQUIRE BY PURCHASE OR CONDEMNATION, AND NOT TO
CLAIMS AGAINST THE COMMISSION. 

THE WORDS "DAMAGE TO REAL ESTATE" CLEARLY MEAN THAT WHEN THE BRIDGE
COMMISSION ACQUIRES REAL PROPERTY BY PURCHASE OR CONDEMNATION, IT MAY
ALSO ACQUIRE CLAIMS FOR DAMAGE TO REAL ESTATE EXISTING IN FAVOR OF THE
PROPERTY OWNERS AND AGAINST THIRD PARTIES. 

THE 1912 ACT, AS AMENDED IN 1919, ONLY PROVIDED FOR THE ACQUISITION
OF EXISTING TOLL BRIDGES AND TURNING OF THEM INTO FREE BRIDGES, AND DID
NOT CONTEMPLATE THE CONSTRUCTION OF NEW BRIDGES. 

REFERENCE IN THE COMPACT TO THE ACT OF 1912, AS AMENDED, PROVIDED
ONLY A SPECIFIC EMINENT DOMAIN METHOD, AND GAVE NO RIGHT TO
CONSEQUENTIAL DAMAGES. 

THE COURT IS WITHOUT JURISDICTION BECAUSE THE QUESTION PRESENTED FOR
REVIEW IS THE CONSTRUCTION OF A STATE STATUTE.  PEOPLE V. CENTRAL R.
CO. OF N.J., 42 N.Y. 283, 294; 12 WALL.  455; ADAMS V. RUSSELL, 229
U.S. 353; KENNEY V. CRAVEN, 215 U.S. 125. 

THE MEANING AND APPLICATION OF AN INTERSTATE COMPACT DO NOT PRESENT A
FEDERAL QUESTION. 

THE COMPACT CLAUSE DOES NOT MAKE THE SUPREME COURT THE FINAL ARBITER
WITH RESPECT TO THE INTERPRETATION OF INTERSTATE COMPACTS.  34 YALE LAW
JOURNAL 685, 694-695; VIRGINIA V. TENNESSEE, 148 U.S. 503, 519. 

THIS COURT IN PEOPLE V. CENTRAL RAILROAD, 12 WALL.  455, HAS HELD
THAT THE ADJUDICATION BY THE HIGHEST STATE COURT AS TO THE MEANING OF
AN INTERSTATE COMPACT DOES NOT PRESENT A FEDERAL QUESTION.  PEOPLE V.
CENTRAL R. CO., 42 N.Y. 283.  CF. HINDERLIDER V. LAPLATA RIVER & CHERRY
CREEK DITCH CO., 304 U.S. 92. 

THE CASES CITED BY PETITIONER DO NOT HOLD THAT THE INTERPRETATION OF
AN INTERSTATE COMPACT STANDING ALONE PRESENTS A FEDERAL QUESTION. 
HINDERLIDER V. LAPLATA RIVER CO., SUPRA; KENTUCKY V. INDIANA, 281 U.S.
163, PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., 13 HOW.  518; GREEN
V. BIDDLE, 8 WHEAT.  1; PEOPLE V. CENTRAL RAILROAD, 12 WALL.  455;
FLEMING V. FLEMING, 264 U.S. 29.  SEE 35 COL. L. REV. 76. 

THERE IS NO SHOWING THAT A FEDERAL QUESTION WAS PRESENTED FOR
DECISION TO THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

THE LANGUAGE OF THE STATUTES CREATING THE BRIDGE COMMISSION AND
GRANTING IT THE POWER OF EMINENT DOMAIN EXPRESSLY PROVIDES FOR THE
ALLOWANCE OF CONSEQUENTIAL DAMAGES.  CHAPTER 297 OF THE LAWS OF NEW
JERSEY OF 1912, AS AMENDED BY C. 76 OF THE LAWS OF 1919, NOW REVISED
STATUTES OF 1937; BURNS HOLDING CORP. V. STATE HIGHWAY COMMISSION, 8
N.J. MISC. 452; SOMMER V. STATE HIGHWAY COMMISSION, 106 N.J.L. 26;
WOLFSON V. COMMISSION OF PERTH AMBOY, 9 N.J. MISC. 161. 

THE CONSTITUTION OF PENNSYLVANIA REQUIRED COMPENSATION FOR PROPERTY
IN THAT STATE "TAKEN, INJURED OR DESTROYED" FOR PUBLIC USE.  ART. 16,
SEC. 8. 

UNDER THIS PROVISION A TAKING IS NOT A PREREQUISITE TO AN AWARD FOR
DAMAGES CAUSED BY A PUBLIC IMPROVEMENT.  THE PROVISION WAS INTENDED FOR
THE PROTECTION OF NOT ONLY THE PERSON WHOSE PROPERTY WAS TAKEN, BUT
EQUALLY FOR THOSE WHO SUFFERED CONSEQUENTIAL DAMAGES BY REASON OF A
PUBLIC IMPROVEMENT.  PENNSYLVANIA R. CO. V. MILLER, 132 U.S. 75;
CHESTER COUNTY V. BROWER, 117 PA. 647; 12 ATL. 577. 

THE PENNSYLVANIA COURTS IN INTERPRETING STATUTES SIMILAR TO THE
STATUTE IN QUESTION HAVE HELD THAT THE STATUTES CREATE NEW RIGHTS TO
CONSEQUENTIAL DAMAGES.  DISTINGUISHING IN RE SOLDIERS AND SAILORS
MEMORIAL BRIDGE, 308 PA. 487; 162 ATL. 309; HOFFER V. READING CO., 287
PA. 120; 134 ATL. 415; WESTMORELAND CHEMICAL & COLOR CO. V. PUBLIC
SERVICE COMMISSION, 294 PA. 451; 144 ATL. 407; PENNSYLVANIA RAILROAD V.
LIPPINCOTT, 116 PA. 462; 9 ATL. 871; PENNSYLVANIA RAILROAD V. MARCHANT,
119 PA. 541; 13 ATL. 690.  SEE:  PENNSYLVANIA S.F.R. CO. V. WALSH, 124
PA. 544, 558; 17 ATL. 186, 187; HOLMES & HOLMES V. PUBLIC SERVICE
COMMISSION, 79 PA. SUPER.  COURT, 381, 386. 

THE PENNSYLVANIA COURTS IN INTERPRETING THE CONSTITUTIONAL PROVISION
AND LEGISLATION THEREUNDER ALLOWING DAMAGES TO PROPERTY INJURED BY AN
IMPROVEMENT HAVE CONSISTENTLY HELD THAT NEW RIGHTS ARE CREATED IN FAVOR
OF OWNERS WHO SUFFER DIMINUTION IN VALUE OF THEIR PROPERTY IRRESPECTIVE
OF THEIR LOCATION WITH REFERENCE TO THE IMPROVEMENT.  MELLOR V.
PHILADELPHIA, 160 PA. 614; 28 ATL. 991; BODEMER V. COUNTY OF
NORTHAMPTON, 101 PA. SUPER.  CT. 492; IN RE MELON STREET, 182 PA. 397;
38 ATL. 482; IN RE CONSTRUCTION OF WALNUT ST. BRIDGE, 191 PA. 153; 43
ATL. 88; RE CHATHAM STREET, 191 PA. 604; 43 ATL. 365; LEWIS V.
HOMESTEAD, 194 PA. 199; 45 ATL. 123. 

THE AUTHORITIES RECOGNIZE THAT STATUTES PROVIDING FOR DAMAGES FOR
"PROPERTY TAKEN, INJURED OR DESTROYED" APPLY TO ALL CLASSES OF PROPERTY
WHICH IS DEPRECIATED IN VALUE BY REASON OF THE IMPROVEMENT.  LEWIS ON
EMINENT DOMAIN (3D ED.)  VOL.  1, SECS. 359, 360 AND 354; NICHOLAS ON
EMINENT DOMAIN, VOL. 1, P. 324. 

THE NEW JERSEY ACT OF 1912, AS AMENDED, WAS THE EXCLUSIVE METHOD
PRESCRIBED FOR EXERCISING THE GENERAL POWER OF EMINENT DOMAIN GRANTED
THE COMMISSION BY THE COMPACT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS OF THE RIGHT OF RESPONDENTS TO RECOVER CONSEQUENTIAL
DAMAGES TO THEIR NEW JERSEY LAND, DUE TO INTERFERENCE WITH THEIR ACCESS
TO THE LAND AND WITH THEIR LIGHT, AIR AND VIEW CAUSED BY PETITIONER'S
CONSTRUCTION OF A BRIDGE ABUTMENT ON ADJACENT LAND.  THE ANSWER TURNS
ON THE QUESTION WHETHER THE COMPACT OF 1934 BETWEEN NEW JERSEY AND
PENNSYLVANIA AUTHORIZING THE CONSTRUCTION OF THE BRIDGE AND ITS
APPROACHES, EXCLUDED THE APPLICATION TO PETITIONER OF A NEW JERSEY
STATUTE WITHOUT WHICH RESPONDENTS WOULD ENJOY NO RIGHT OF RECOVERY
UNDER NEW JERSEY LAW. 

PETITIONER, THE BRIDGE COMMISSION, IS A "BODY CORPORATE AND POLITIC"
CREATED BY THE COMPACT ADOPTED BY THE LEGISLATURES OF THE TWO STATES,
N.J.P.L. 1934, CH. 215(NOW N.J.R.S. 1937, 32:  8-1 ET SEQ.), 1931 PA.
P.L. 1352; 1933 PA. P.L. 827, AND CONSENTED TO BY CONGRESS, 49 STAT.
1058(1935).  THE COMPACT AUTHORIZED THE COMMISSION TO BUILD BRIDGES
ACROSS THE DELAWARE RIVER BETWEEN THE TWO STATES, AND FOR THAT PURPOSE
GAVE THE COMMISSION AUTHORITY TO ACQUIRE REAL PROPERTY BY PURCHASE OR
BY THE EXERCISE OF EMINENT DOMAIN.  THE COMMISSION, IN THE EXERCISE OF
ITS AUTHORITY IN CONSTRUCTION OF A BRIDGE BETWEEN PHILLIPSBURG, NEW
JERSEY AND EASTON, PENNSYLVANIA, ACQUIRED BY PURCHASE LAND IN THE TOWN
OF PHILLIPSBURG, UPON WHICH IT HAS LOCATED AND CONSTRUCTED A HIGHWAY
APPROACH TO THE BRIDGE, ON AN EMBANKMENT OR ABUTMENT LEADING TO THE NEW
JERSEY END OF THE BRIDGE.  THE PROPERTY THUS ACQUIRED AND USED INCLUDES
LAND ADJOINING THE REAR OF PROPERTY OWNED BY RESPONDENTS, HAVING ITS
FRONT ON A PUBLIC STREET.  THE EMBANKMENT AND THE LAND ON WHICH IT
RESTS ALSO CROSSES CERTAIN STREETS IN THE NEIGHBORHOOD NOT IMMEDIATELY
ADJACENT TO RESPONDENTS' LAND WHICH HAVE BEEN PERMANENTLY CLOSED BY THE
PUBLIC AUTHORITIES, IN ORDER TO PROVIDE FOR THE BRIDGE APPROACH. 

THE PRESENT SUIT IS A PROCEEDING IN MANDAMUS, BROUGHT IN THE NEW
JERSEY SUPREME COURT TO COMPEL THE COMMISSION TO TAKE PROCEEDINGS,
WHICH IT IS ALLEGED ARE AUTHORIZED AND REQUIRED BY THE COMPACT, TO FIX
AND AWARD COMPENSATION TO RESPONDENTS FOR DAMAGES TO THEIR LAND,
SUFFERED BY REASON OF THE COMMISSION'S ACTION IN THE CONSTRUCTION OF
THE ABUTMENT.  THE STATE SUPREME COURT SUSTAINED THE SPECIAL VERDICT OF
A JURY WHICH FOUND THAT THE COMMISSION'S ACTION HAD DAMAGED RESPONDENTS
BY DEPRIVING THEM OF ACCESS TO THEIR LAND AND THEIR ENJOYMENT OF LIGHT,
AIR AND VIEW.  THE COURT FOUND AS A MATTER OF LAW THAT AS THE ABUTMENT
WAS LOCATED WHOLLY ON LAND ACQUIRED BY THE COMMISSION, AND AS THE
STREETS IN THE NEIGHBORHOOD HAD BEEN CLOSED AND GRADES CHANGED BY STATE
AUTHORITY, RESPONDENTS WERE WITHOUT RIGHT OF RECOVERY FOR THE DAMAGES
SUFFERED, IN THE ABSENCE OF SOME STATUTE AUTHORIZING RECOVERY.  BUT IT
FOUND SUCH A STATUTE IN CH. 297 OF P.L. 1912 AS AMENDED BY CH. 76 OF
P.L. 1919(NOW N.J.R.S. 1937, 32:9-1 ET SEQ.), WHICH IT CONSTRUED WITH
THE COMPACT AS REQUIRING THE COMMISSION TO COMPENSATE FOR THE DAMAGES
WHICH RESPONDENTS HAD SUFFERED.  119 N.J.L. 600; 197 A. 896. 

RESPONDENTS, BEING WITHOUT OTHER ADEQUATE LEGAL REMEDY, THE COURT
AWARDED A PEREMPTORY MANDAMUS DIRECTING PETITIONER TO COMPENSATE THEM
FOR THE DAMAGE OR TO TAKE PROCEEDINGS FOR THE DETERMINATION OF THE
AMOUNT TO BE AWARDED AS COMPENSATION PURSUANT TO THE PROVISIONS OF
ARTICLE III OF THE COMPACT, WHICH IT ALSO HELD REQUIRED THE PROCEEDINGS
FOR THAT PURPOSE TO BE TAKEN ACCORDING TO CHAPTER 297 OF P.L. 1912 AS
AMENDED BY CH. 76 OF P.L. 1919(NOW N.J.R.S. 1937, 32:9-1 ET SEQ.) ON
APPEAL THE NEW JERSEY COURT OF ERRORS AND APPEALS AFFIRMED ON THE SAME
GROUNDS AS THOSE ON WHICH THE SUPREME COURT RESTED ITS DECISION.  123
N.J.L. 197; 8 A.2D 563.  WE GRANTED CERTIORARI, 308 U.S. 549, THE
QUESTIONS OF THE CONSTRUCTION OF THE COMPACT BETWEEN STATES AND OF THE
JURISDICTION OF THIS COURT BEING OF PUBLIC IMPORTANCE.    IN PEOPLE V.
CENTRAL RAILROAD, 12 WALL.  455, JURISDICTION OF THIS COURT TO REVIEW A
JUDGMENT OF A STATE COURT CONSTRUING A COMPACT BETWEEN STATES WAS
DENIED ON THE GROUND THAT THE COMPACT WAS NOT A STATUTE OF THE UNITED
STATES AND THAT THE CONSTRUCTION OF THE ACT OF CONGRESS GIVING CONSENT
WAS IN NO WAY DRAWN IN QUESTION, NOR WAS ANY RIGHT SET UP UNDER IT.
THIS DECISION HAS LONG BEEN DOUBTED, SEE HINDERLIDER V. LA PLATA CO.,
304 U.S. 92, 110, NOTE 12, AND WE NOW CONCLUDE THAT THE CONSTRUCTION OF
SUCH A COMPACT SANCTIONED BY CONGRESS BY VIRTUE OF ARTICLE I, SEC. 10,
CLAUSE 3 OF THE CONSTITUTION, INVOLVES A FEDERAL "TITLE, RIGHT,
PRIVILEGE OR IMMUNITY" WHICH WHEN "SPECIALLY SET UP AND CLAIMED" IN A
STATE COURT MAY BE REVIEWED HERE ON CERTIORARI UNDER SEC. 237(B) OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 344.  SEE GREEN V. BIDDLE, 8 WHEAT.  1;
PENNSYLVANIA V. WHEELING & BELMONT BRIDGE CO., 13 HOW.  518; WEDDING V.
MEYLER, 192 U.S. 573; CF. WHARTON V. WISE, 153 U.S. 155; KENTUCKY UNION
CO. V. KENTUCKY, 219 U.S. 140, 161; HINDERLIDER V. LA PLATA CO., SUPRA.
HENCE WE ADDRESS OURSELVES TO THE LANGUAGE OF THE COMPACT ON WHICH
RESPONDENTS RELY TO SUSTAIN A RIGHT OF RECOVERY FOR INJURY TO THEIR
LANDS, FOR WHICH, APART FROM THE NEW JERSEY STATUTE OF 1912, REFERRED
TO IN THE COMPACT, THE NEW JERSEY COURTS HAVE HELD THERE IS NO SUPPORT
IN STATE LAW. 

THE COMPACT CREATED THE COMMISSION AS A "PUBLIC CORPORATE
INSTRUMENTALITY" OF THE TWO STATES, TO PERFORM STATE FUNCTIONS, AMONG
OTHERS, THE LOCATION, CONSTRUCTION, OPERATION AND MAINTENANCE OF
BRIDGES EXTENDING BETWEEN THE TWO STATES AND ACROSS A SPECIFIED SECTION
OF THE DELAWARE RIVER.  TO THIS END IT CONFERRED UPON THE COMMISSION
THE POWER: 

"(B)  TO SUE AND BE SUED; ... 

"(H)  TO ENTER INTO CONTRACTS; ... 

"(J)  TO ACQUIRE, OWN, USE, LEASE, OPERATE AND DISPOSE OF REAL
PROPERTY AND INTEREST IN REAL PROPERTY, AND TO MAKE IMPROVEMENTS
THEREON; ...  AND 

"(M)  TO EXERCISE THE POWER OF EMINENT DOMAIN." 

IN CONNECTION WITH THE ACQUISITION OF ANY REAL PROPERTY FOR ANY
AUTHORIZED PURPOSE, ARTICLE III OF THE COMPACT PROVIDES: 

"IF THE COMMISSION IS UNABLE TO AGREE WITH THE OWNER OR OWNERS
THEREOF UPON TERMS FOR THE ACQUISITION OF ANY SUCH REAL PROPERTY, IN
THE STATE OF NEW JERSEY, FOR ANY REASON WHATSOEVER, THEN THE COMMISSION
MAY ACQUIRE SUCH PROPERTY BY THE EXERCISE OF THE RIGHT OF EMINENT
DOMAIN, IN THE MANNER PROVIDED BY AN ACT OF THE STATE OF NEW JERSEY,
ENTITLED 'AN ACT AUTHORIZING THE ACQUISITION AND MAINTAINING BY THE
STATE OF NEW JERSEY, IN CONJUNCTION WITH THE STATE OF PENNSYLVANIA, OF
TOLL BRIDGES ACROSS THE DELAWARE RIVER, AND PROVIDING FOR FREE TRAVEL
ACROSS THE SAME,' APPROVED THE FIRST DAY OF APRIL, ONE THOUSAND NINE
HUNDRED AND TWELVE (CHAPTER TWO HUNDRED NINETY-SEVEN), AND THE VARIOUS
ACTS AMENDATORY THEREOF AND SUPPLEMENTARY THERETO, RELATING TO THE
ACQUISITION OF INTERSTATE TOLL BRIDGES OVER THE DELAWARE RIVER."  IT
FURTHER PROVIDES: 

"THE TERM 'REAL PROPERTY,' AS USED IN THIS COMPACT, INCLUDES LANDS,
...  AND INTERESTS IN LAND, ...  AND ANY AND ALL THINGS AND RIGHTS
USUALLY INCLUDED WITHIN THE SAID TERM, AND INCLUDES NOT ONLY FEES
SIMPLE AND ABSOLUTE BUT ALSO ANY AND ALL LESSER INTERESTS, SUCH AS
EASEMENTS, RIGHTS OF WAY, USES, LEASES, LICENSES, AND ALL OTHER
INCORPOREAL HEREDITAMENTS, AND EVERY ESTATE, INTEREST OR RIGHT, LEGAL
OR EQUITABLE, INCLUDING TERMS OF YEARS AND LIENS THEREON BY WAY OF
JUDGMENTS, MORTGAGES, OR OTHERWISE, AND ALSO CLAIMS FOR DAMAGE TO REAL
ESTATE."  IT WILL BE NOTED THAT THE EFFECT OF THESE PROVISIONS IS TO
AUTHORIZE THE COMMISSION TO ACQUIRE "REAL PROPERTY" BY PURCHASE OR BY
EMINENT DOMAIN, AND THAT BY DEFINITION REAL PROPERTY INCLUDES
"INTERESTS IN LAND" WHICH ARE SO DEFINED AS TO INCLUDE "CLAIMS FOR
DAMAGE TO REAL ESTATE," AND THAT, WHERE RESORT TO EMINENT DOMAIN IS
NEEDFUL FOR THE ACQUISITION OF SUCH INTERESTS, THE EXERCISE OF THAT
POWER IS TO BE "IN THE MANNER PROVIDED" IN THE NEW JERSEY STATUTE OF
1912 AS AMENDED.  BY ITS TERMS THE COMPACT CONFERS UPON THE COMMISSION
THE POWER TO ACQUIRE THE SPECIFIED INTERESTS IN LAND OR RELATING TO
LAND, CONDITIONED UPON PAYMENT FOR THE INTERESTS ACQUIRED, AN AMOUNT
AGREED UPON OR FIXED BY PROCEEDINGS IN EMINENT DOMAIN.  BEYOND THIS IT
IMPOSES NO DUTY OR OBLIGATION ON THE COMMISSION TO COMPENSATE FOR
DAMAGES INFLICTED BY ITS ACTS, BUT LEAVES THE COMMISSION SUBJECT TO
SUCH LIABILITY AS IS IMPOSED BY THE LAW OF THE STATE WITHIN WHICH THE
COMMISSION ACTS. 

THE NEW JERSEY STATUTE OF 1912 WHICH, AS PRESCRIBED BY ARTICLE III OF
THE COMPACT AFFORDS THE PROCEDURE BY WHICH THE COMMISSION IS TO
EXERCISE ITS POWER OF EMINENT DOMAIN, DOES NOT ENLARGE THE DUTIES OR
LIABILITY OF THE COMMISSION AS PRESCRIBED BY THE COMPACT.  THE AMENDED
STATUTE OF 1912 AUTHORIZED A STATE COMMISSION, ACTING IN COOPERATION
WITH A LIKE COMMISSION OF PENNSYLVANIA, TO ACQUIRE THE RIGHTS,
FRANCHISES AND PROPERTY OF BRIDGE COMPANIES OWNING AND OPERATING
EXISTING TOLL BRIDGES ACROSS THE DELAWARE RIVER WITHIN A SPECIFIED
TERRITORY AND TO OPERATE AND MAINTAIN THEM AS FREE BRIDGES. 

IT AUTHORIZED THE COMMISSION TO ACQUIRE THE BRIDGES BY PURCHASE OR BY
EMINENT DOMAIN AND FOR THAT PURPOSE "TO DETERMINE THE COMPENSATION TO
BE ALLOWED AS OF THE TIME OF ENTRY UPON THE PROPERTY AND TAKING
POSSESSION THEREOF, FOR THE VALUE OF PROPERTY, FRANCHISES, EASEMENTS OR
RIGHTS IN THE TWO STATES."  IT COMMANDS THAT AFTER VIEW OF THE PREMISES
AND HEARING, THE COMMISSION, IN DETERMINING THE AMOUNT OF COMPENSATION,
"SHALL ESTIMATE THE VALUE OF THE PROPERTY TAKEN, INCLUDING ANY
EASEMENT, RIGHTS OR FRANCHISES INCIDENT THERETO, AS WELL AS THE DAMAGES
FOR PROPERTY TAKEN, INJURED OR DESTROYED, AND SHALL STATE TO WHOM THE
DAMAGES ARE PAYABLE." 

RESPONDENTS INSIST THAT THIS DIRECTION THAT THE COMMISSION CREATED
UNDER THE 1912 ACT "SHALL ESTIMATE  ...  DAMAGES FOR PROPERTY TAKEN,
INJURED OR DESTROYED" IS, BY THE COMPACT, MADE A DIRECTION TO
PETITIONER FOR PAYMENT OF CONSEQUENTIAL INJURIES TO PROPERTY TO WHICH
THE COMPACT MAKES NO REFERENCE.  UNDER THE GENERALLY APPLICABLE
DECISIONS AND STATUTES OF NEW JERSEY, AS HER COURTS HAVE HELD IN THIS
CASE, THE COMMISSION IS WITHOUT LIABILITY TO PAY CONSEQUENTIAL
DAMAGES.  BUT IT FOUND A STATUTORY CREATION OF SUCH LIABILITY IN THE
ACT OF 1912 AS AMENDED IN 1919.  AT THE TIME OF THE ADOPTION OF THE
COMPACT THERE WAS NO STATUTE IN NEW JERSEY PURPORTING TO IMPOSE SUCH A
LIABILITY WHICH WAS ON ITS FACE APPLICABLE TO THE COMMISSION.  IF THE
ACT OF 1912 AS AMENDED IMPOSED SUCH A LIABILITY, IT APPEARED TO BE
APPLICABLE ONLY TO A DIFFERENT CORPORATE BODY FROM PETITIONER AND THEN
ONLY IN THE CASE OF THE TRANSFER OF OWNERSHIP OF EXISTING TOLL BRIDGES
TO THE COMMISSION THE ACQUISITION OF WHICH COULD INFLICT NO
CONSEQUENTIAL DAMAGES.  IN ENTERING INTO A COMPACT IT WAS THEN
COMPETENT FOR THE STATES TO PROVIDE BY ITS TERMS THE EXTENT TO WHICH
THEY WERE TO TAKE OVER AND APPLY TO THE NEW COMMISSION, PERFORMING A
DIFFERENT FUNCTION UNDER DIFFERENT CIRCUMSTANCES, THE SUBSTANTIVE RULES
GOVERNING COMPENSATION UPON THE ACQUISITION OF EXISTING TOLL BRIDGES
UNDER THE 1912 ACT.  THE COMPACT WAS EXPLICIT IN ITS SPECIFICATIONS OF
WHAT PROPERTY INTERESTS SHOULD BE TAKEN AND COMPENSATED FOR, AND OF THE
RIGHT AND AUTHORITY OF THE COMMISSION TO ACQUIRE THEM BY PURCHASE OR BY
EMINENT DOMAIN.  BY ITS SILENCE IT LEFT THE COMMISSION SUBJECT TO SUCH
LIABILITY FOR CONSEQUENTIAL DAMAGES ONLY AS WAS IMPOSED BY THE LAWS OF
THE STATE, INCLUDING THE ACT OF 1912, EXCEPT IN SO FAR AS THE COMPACT
RESTRICTED THE APPLICATION OF THAT ACT.  THE COMPACT WAS EQUALLY
EXPLICIT IN ITS STATEMENT OF THE EFFECT WHICH WAS TO BE GIVEN TO THE
1912 ACT AND ITS AMENDMENTS. 

IT IS PLAIN THAT, UNDER THE COMPACT, WITHOUT REFERENCE TO THAT
LEGISLATION, THE COMMISSION COULD HAVE ACQUIRED LAND BY PURCHASE AND
BUILT A BRIDGE UPON IT WITHOUT SUBJECTING ITSELF TO LIABILITY FOR
CONSEQUENTIAL DAMAGES.  BUT IT WAS NECESSARY THAT A PROCEDURE SHOULD BE
ADOPTED FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN CONFERRED ON
THE COMMISSION BY THE COMPACT AND THIS WAS DONE BY THE PROVISION OF THE
COMPACT THAT "THE COMMISSION MAY ACQUIRE SUCH PROPERTY BY THE EXERCISE
OF THE RIGHT OF EMINENT DOMAIN, IN THE MANNER PROVIDED" BY THE 1912
ACT.  UNDER THE COMPACT THAT ACT IS GIVEN EFFECT ONLY TO THE EXTENT
THAT IT AFFORDS A MANNER OR PROCEDURE OF EXERCISING THE RIGHT OF
EMINENT DOMAIN, WHICH IS CALLED INTO OPERATION ONLY IF THE COMMISSION
IS UNABLE TO ACQUIRE NEEDED PROPERTY BY PURCHASE AND THEN ONLY AS A
MEANS OF FIXING THE COMPENSATION WHICH, UNDER THE COMPACT, THE
COMMISSION IS REQUIRED TO PAY.  THE COMPACT CAN BE GIVEN A MORE
EXTENSIVE EFFECT ONLY BY DISREGARDING ITS LANGUAGE AND BY ATTRIBUTING
TO ITS DRAFTSMEN AN INTENTION TO ADOPT A RULE OF DAMAGES NOT GENERALLY
APPLICABLE IN THE STATE AND NOW FOR THE FIRST TIME ADOPTED BY A
CONSTRUCTION PLAINLY INAPPLICABLE TO THE ACQUISITION OF EXISTING TOLL
BRIDGES TO WHICH THE ACT OF 1912 AND ITS AMENDMENTS ALONE REFERRED. 

ONLY BY READING INTO THE WORDS OF THE COMPACT SUCH A STRAINED AND
UNNATURAL MEANING, IS IT POSSIBLE TO FIND IN IT A MODIFICATION OF THE
SETTLED LAW OF THE STATE DEFINING THE RECOVERABLE DAMAGES UPON THE
CONSTRUCTION OF PUBLIC WORKS.  NOTHING IN THE HISTORY OF THE COMPACT
HAS BEEN BROUGHT TO OUR ATTENTION TO SUGGEST ANY REASON OR PURPOSE FOR
SUCH MODIFICATION IN THE SPECIAL CASE OF BRIDGES TO BE CONSTRUCTED
BETWEEN THE TWO STATES.  BOTH THE NEW JERSEY COURTS THOUGHT THEY
DISCERNED SUCH A REASON IN ARTICLE XVI, SEC. 8 OF THE PENNSYLVANIA
CONSTITUTION OF 1874, WHICH PROVIDES:  "MUNICIPAL AND OTHER
CORPORATIONS AND INDIVIDUALS INVESTED WITH THE PRIVILEGE OF TAKING
PRIVATE PROPERTY FOR PUBLIC USE SHALL MAKE JUST COMPENSATION FOR
PROPERTY TAKEN, INJURED OR DESTROYED BY THE CONSTRUCTION OR ENLARGEMENT
OF THEIR WORKS, HIGHWAYS OR IMPROVEMENTS  ...  "  IN PASSING UPON THIS
CASE THEY THOUGHT THAT THIS PROVISION OF THE PENNSYLVANIA CONSTITUTION
AS CONSTRUED BY TWO DECISIONS OF THE PENNSYLVANIA SUPREME COURT IN 1888
AND 1889, CHESTER COUNTY V. BROWER, 117 PA. 647; 12 A. 577; APPEAL OF
DELAWARE COUNTY, 119 PA. 159; 13 A. 62, REQUIRED COMPENSATION FOR
CONSEQUENTIAL DAMAGES IN EMINENT DOMAIN PROCEEDINGS. 

FROM THIS THEY REASONED THAT BY THE PROVISIONS OF THE COMPACT FOR THE
ACQUISITION OF PROPERTY BY EMINENT DOMAIN PROCEEDINGS "IN THE MANNER"
PROVIDED BY THE 1912 ACT WITH ITS STIPULATION FOR PAYMENT OF "DAMAGES
FOR PROPERTY TAKEN, INJURED OR DESTROYED" IT WAS INTENDED BY THE
COMPACT TO MAKE THE RULE OF DAMAGE UNDER THE PENNSYLVANIA CONSTITUTION
APPLICABLE TO PROPERTY SIMILARLY ACQUIRED BY THE COMMISSION IN NEW
JERSEY.  BUT THIS REASONING OVERLOOKS THE IMPORTANT CIRCUMSTANCE THAT
THE PENNSYLVANIA COURTS HAVE CONSISTENTLY RULED THAT THE CONSTITUTIONAL
PROVISION IS WITHOUT APPLICATION WHERE THERE IS NO TAKING BY EMINENT
DOMAIN, AND THAT MUNICIPAL CORPORATIONS OR OTHERS, ALTHOUGH POSSESSED
OF THE POWER OF EMINENT DOMAIN, ARE NOT LIABLE FOR CONSEQUENTIAL
DAMAGES INFLICTED BY THE ERECTION OF STRUCTURES WHOLLY ON THEIR OWN
LAND ACQUIRED BY PURCHASE.  PENNSYLVANIA R. CO. V. LIPPINCOTT, 116 PA.
472; 9 A. 871; PENNSYLVANIA R. CO. V. MARCHANT, 119 PA. 541; 13 A. 690;
HARTMAN V. PITTSBURGH INCLINE PLANE CO., 159 PA. 442; 28 A. 145;
GILLESPIE V. BUFFALO, R. & P. RY. CO., 226 PA. 31; 74 A. 738; RIDGEWAY
V. PHILADELPHIA & READING RY. CO., 244 PA. 282; 90 A. 652. 

MOREOVER, IN 1928, SIX YEARS BEFORE THE COMPACT, THE SUPREME COURT OF
PENNSYLVANIA, IN WESTMORELAND CHEMICAL & COLOR CO. V. PUBLIC SERVICE
COMM'N, 294 PA. 451; 144 A. 407, DEPARTED FROM ITS RULING IN CHESTER
COUNTY V. BROWER, SUPRA, AND APPEAL OF DELAWARE COUNTY, SUPRA, AND HAS
SINCE HELD THAT THE CONSTITUTIONAL PROVISION IN THE ABSENCE OF A
STATUTE REQUIRING IT GIVES NO RIGHT OF RECOVERY FROM A LANDOWNER FOR
CONSEQUENTIAL DAMAGES RESULTING FROM STRUCTURES LOCATED WHOLLY ON HIS
OWN LAND WHETHER ACQUIRED BY PURCHASE OR EMINENT DOMAIN.  HOFFER V.
READING CO., 287 PA. 120; 134 A. 415; SOLDIERS AND SAILORS MEMORIAL
BRIDGE, 308 PA. 487, 491; 162 A. 309; MCGARRITY V. COMMONWEALTH, 311
PA. 436, 439; 166 A. 895. 

EVEN THOUGH IT BE THOUGHT THAT IT WAS INTENDED TO ADOPT, BY THE 1912
ACT, THE THEN PREVAILING INTERPRETATION OF THE PENNSYLVANIA
CONSTITUTIONAL PROVISION, THAT FACT COULD HAVE NO FORCE HERE, BOTH
BECAUSE THE CONSTITUTIONAL PROVISION HAS NEVER BEEN REGARDED BY THE
PENNSYLVANIA COURTS AS APPLICABLE TO THE USE OF LAND ACQUIRED BY
PURCHASE AND BECAUSE THE COMPACT BY ITS TERMS EXCLUDES THE 1912 ACT
FROM ITS OPERATION EXCEPT IN SO FAR AS IT AFFORDS A MANNER OR METHOD OF
PROCEDURE WHEN THE COMMISSION RESORTS TO EMINENT DOMAIN.  REVERSED. 
..END :







SECURITIES COMM'N V. U.S. REALTY CO., 310 U.S. 434 


NO. 796.  ARGUED APRIL 29, 30, 1940.  - DECIDED MAY 27, 1940.  - 108
F.2D 794, REVERSED. 


1.  A BANKRUPTCY COURT HAS JURISDICTION TO MAKE ORDERS NOT SUBJECT TO
COLLATERAL ATTACK IN A PROCEEDING FOR AN "ARRANGEMENT" WITH UNSECURED
CREDITORS BROUGHT BY A DEBTOR CORPORATION UNDER CHAPTER XI OF THE
CHANDLER ACT, ALTHOUGH THE FINANCIAL AND CORPORATE SETUP OF THE DEBTOR
ARE SUCH THAT ADEQUATE PROTECTION AND RELIEF CAN NOT BE OBTAINED UNDER
THE LIMITATIONS OF THAT CHAPTER BUT REQUIRE A REORGANIZATION UNDER
CHAPTER X WITH THE SPECIAL PROCEDURE AND SAFEGUARDS WHICH THAT CHAPTER
AFFORDS.  P. 446. 

CHAPTER X, DEVISED AS A SUBSTITUTE FOR THE EQUITY RECEIVERSHIP, IS
SPECIALLY ADAPTED TO THE REORGANIZATION OF LARGE CORPORATIONS WHOSE
SECURITIES ARE HELD BY THE PUBLIC, AND SETS UP A SPECIAL PROCEDURE FOR
THE PROTECTION OF WIDELY SCATTERED SECURITY HOLDERS AND THE PUBLIC
THROUGH THE INTERVENTION OF THE SECURITIES AND EXCHANGE COMMISSION,
WHILE CHAPTER XI, WHICH IS PECULIARLY ADAPTED TO THE SPEEDY COMPOSITION
OF DEBITS OF SMALL INDIVIDUAL AND CORPORATE BUSINESSES, OMITS THE
MACHINERY FOR REORGANIZATION SET UP BY CHAPTER X, AND CONTAINS NO
PROVISION FOR PARTICIPATION BY THE COMMISSION IN A PROCEEDING UNDER
CHAPTER XI. 

2.  CHAPTERS X AND XI OF THE CHANDLER ACT, IN PROVIDING THAT A PLAN
OR ARRANGEMENT, TO WARRANT ITS CONFIRMATION, SHALL BE "FAIR AND
EQUITABLE," USE THOSE WORDS WITH THE MEANING ATTACHED TO THEM, AS WORDS
OF ART, IN CASES OF REORGANIZATION THROUGH EQUITY RECEIVERSHIPS OR
UNDER FORMER SEC. 77B, VIZ., THAT, IN ANY PLAN OF CORPORATE
REORGANIZATION, CREDITORS ARE ENTITLED TO PRIORITY OVER STOCKHOLDERS TO
THE FULL EXTENT OF THEIR DEBTS, AND THAT ANY SCALING DOWN OF CREDITORS'
CLAIMS, WITHOUT SOME FAIR COMPENSATING ADVANTAGE TO THEM WHICH IS PRIOR
TO THE RIGHTS OF STOCKHOLDERS, IS INADMISSIBLE.  NORTHERN PACIFIC RY.
CO. V. BOYD, 228 U.S. 482.  P. 452. 

3.  SINCE CHAPTER XI ADMITS OF AN "ARRANGEMENT" ONLY WITH RESPECT TO
UNSECURED CREDITORS, WITHOUT ALTERATION OF THE RELATIONS OF ANY OTHER
CLASS OF SECURITY HOLDERS, AND SINCE IT CONTEMPLATES (AS REQUIRED BY
SEC. 366) THAT THE ARRANGEMENT SHALL BE FAIR AND EQUITABLE WITHIN THE
MEANING OF THE BOYD CASE, IT IS EVIDENT THAT IT GIVES NO APPROPRIATE
SCOPE FOR AN ARRANGEMENT OF AN UNSECURED INDEBTEDNESS HELD BY HUNDREDS
OF CREDITORS OF A CORPORATION HAVING THOUSANDS OF STOCKHOLDERS.  P.
452. 

THE HOPE OF SECURING AN ARRANGEMENT WHICH IS FAIR AND EQUITABLE AND
IN THE BEST INTERESTS OF UNSECURED CREDITORS, WITHOUT SOME READJUSTMENT
OF THE RIGHTS OF STOCKHOLDERS SUCH AS MAY BE HAD UNDER CHAPTER X, BUT
IS PRECLUDED BY CHAPTER XI, IS AT BEST BUT NEGLIGIBLE AND, IF
ACCOMPLISHED AT ALL, MUST BE WITHOUT THE AIDS TO THE PROTECTION OF
CREDITORS AND THE PUBLIC INTEREST, INCLUDING PARTICIPATION BY THE
SECURITIES AND EXCHANGE COMMISSION, WHICH ARE PROVIDED BY CHAPTER X,
AND WHICH WOULD SEEM TO BE INDISPENSABLE TO A JUST DETERMINATION
WHETHER THE PLAN IS FAIR AND EQUITABLE. 

4.  WHETHER CONFIRMATION OF AN ARRANGEMENT PROPOSED IN THIS CASE
WOULD BE "FOR THE BEST INTEREST OF THE CREDITORS," AS SEC. 366(2)
REQUIRES, DEPENDS UPON WHETHER THE STOCKHOLDERS SHOULD BE ELIMINATED OR
THE CREDITORS RECEIVE SOME SUBSTITUTE COMPENSATION AND WHETHER THAT
COMPENSATION WOULD BE FAIR AND EQUITABLE.  IT IS FOR THE BEST INTEREST
OF THE CREDITORS THAT THESE QUESTIONS BE ANSWERED IN A CHAPTER X
PROCEEDING.  P. 453. 

5.  CHAPTER XI HAS SPECIAL SCOPE IN THE CASE OF SMALL BUSINESSES,
WHERE THERE ARE NO PUBLIC OR PRIVATE INTERESTS INVOLVED REQUIRING
PROTECTION BY THE PROCEDURE AND REMEDIES OF CHAPTER X. P. 454. 

6.  UNDER SEC. 146(2) A PETITION MAY NOT BE FILED UNDER CHAPTER X
UNLESS THE JUDGE IS SATISFIED THAT "ADEQUATE RELIEF" WOULD NOT BE
OBTAINABLE UNDER CHAPTER XI.  THE ADEQUACY OF THE RELIEF UNDER CHAPTER
XI MUST BE APPRAISED IN COMPARISON WITH THAT TO BE HAD UNDER CHAPTER X,
AND IN THE LIGHT OF ITS EFFECT ON ALL THE PUBLIC AND PRIVATE INTERESTS
CONCERNED INCLUDING THOSE OF THE DEBTOR.  P. 454. 

7.  IF THE CASE IS SUCH THAT ADEQUATE RELIEF CAN NOT BE OBTAINED
UNDER CHAPTER XI, THE COURT, EXERCISING ITS EQUITY POWER, SHOULD
DISMISS THE PROCEEDING UNDER THAT CHAPTER, LEAVING THE PETITIONER FREE
TO PROCEED UNDER CHAPTER X, WHICH AFFORDS EVERY REMEDY OBTAINABLE UNDER
CHAPTER XI, AND MORE.  PP. 455, 456. 

8.  A BANKRUPTCY COURT IS A COURT OF EQUITY, SEC. 2, 11 U.S.C. SEC.
11, AND IS GUIDED BY EQUITABLE DOCTRINES AND PRINCIPLES EXCEPT IN SO
FAR AS THEY ARE INCONSISTENT WITH THE ACT; AND AN ACT DEALING WITH
BANKRUPTCY SHOULD BE READ IN HARMONY WITH THE EXISTING SYSTEM OF EQUITY
JURISPRUDENCE, OF WHICH IT IS A PART.  PP. 455, 457. 

9.  A COURT OF EQUITY MAY, IN THE EXERCISE OF ITS DISCRETIONARY
JURISDICTION, CONDITION RELIEF ON FULFILLMENT OF A REQUIREMENT WHICH
WILL SAFEGUARD THE PUBLIC INTEREST.  IT MAY WITHHOLD RELIEF ALTOGETHER,
IN THE PUBLIC INTEREST, WHEN PRIVATE RIGHT WILL NOT SUFFER.  P. 455. 

10.  WHAT THE COURT CAN DECIDE UNDER THE EXPRESS TERMS OF SEC. 146 OF
CHAPTER X AS TO THE ADEQUACY OF THE RELIEF AFFORDED BY CHAPTER XI, IT
CAN DECIDE IN THE EXERCISE OF ITS EQUITY POWERS UNDER CHAPTER XI FOR
THE PURPOSE OF SAFEGUARDING THE PUBLIC AND PRIVATE INTERESTS INVOLVED
AND PROTECTING ITS OWN JURISDICTION FROM MISUSE.  P. 456. 

11.  IT WAS THE DUTY OF THE DISTRICT COURT IN THIS CASE, IN THE
EXERCISE OF A SOUND DISCRETION, TO DISMISS THE PETITION UNDER CHAPTER
XI, LEAVING THE DEBTOR TO PROCEED UNDER CHAPTER X. P. 456. 

12.  THE SECURITIES AND EXCHANGE COMMISSION, IN VIEW OF THE DUTIES
AND FUNCTIONS LAID UPON IT IN THE PUBLIC INTEREST BY CHAPTER X OF THE
CHANDLER ACT, MAY BE PERMITTED, UNDER RULE 24 OF THE RULES OF CIVIL
PROCEDURE AND PARAGRAPH 37 OF THE GENERAL ORDERS IN BANKRUPTCY, TO
INTERVENE IN A CHAPTER XI PROCEEDING AND MOVE ITS DISMISSAL UPON THE
GROUND THAT RESORT TO THAT CHAPTER RATHER THAN CHAPTER X INTERFERES
WITH PERFORMANCE OF THE COMMISSION'S DUTIES AND VIOLATES THE POLICY OF
THE ACT.  P. 458. 

13.  UPON A DENIAL OF SUCH MOTION TO DISMISS, THE COMMISSION IS
ENTITLED TO APPEAL, UNDER SECS. 24 AND 25 OF THE BANKRUPTCY ACT.  P.
460. 

SECURITIES AND EXCHANGE COMMISSION V. UNITED STATES REALTY &
IMPROVEMENT CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 309 U.S. 649, TO REVIEW A JUDGMENT WHICH REVERSED AN
ORDER OF THE DISTRICT COURT PERMITTING THE ABOVE-NAMED COMMISSION TO
INTERVENE IN A PROCEEDING UNDER CHAPTER XI OF THE BANKRUPTCY ACT, AND
WHICH DISMISSED THE COMMISSION'S APPEAL FROM THE DENIAL OF ITS MOTIONS
THAT AN APPROVAL OF THE DEBTOR'S PETITION BE VACATED AND THAT THE
PETITION BE DISMISSED, ETC. 

THE DISTRICT COURT HAD NO JURISDICTION TO ENTERTAIN RESPONDENT'S
PETITION UNDER CHAPTER XI BECAUSE CHAPTER X IS THE EXCLUSIVE METHOD BY
WHICH CORPORATIONS WITH SECURITIES OUTSTANDING IN THE HANDS OF THE
PUBLIC MAY REORGANIZE UNDER THE BANKRUPTCY ACT.  ALTHOUGH LITERAL
CONSTRUCTION OF THE DEFINITION PROVISIONS OF THE ACT WOULD PERMIT A
PUBLICLY HELD CORPORATION TO FILE UNDER CHAPTER XI, THE STRUCTURE OF
THE ACT AS A WHOLE, AS WELL AS ITS LEGISLATIVE HISTORY, SHOWS
UNMISTAKABLY THAT SUCH LITERAL CONSTRUCTION DOES NOT REFLECT THE
MEANING OF CONGRESS.  THE RULE IS FIRMLY ESTABLISHED THAT THE REAL
PURPOSE AND INTENT OF THE LEGISLATIVE BODY MUST PREVAIL OVER THE
LITERAL IMPORT OF THE WORDS USED. 

CHAPTERS X AND XI EMBODY STRIKINGLY DIFFERENT SCHEMES OF
REORGANIZATION.  CHAPTER X PROVIDES DETAILED SAFEGUARDS DESIGNED TO
PROTECT THE INTERESTS OF PUBLIC INVESTORS; CHAPTER XI PROVIDES MERELY A
RUDIMENTARY SYSTEM OF CREDITOR CONTROL DESIGNED FOR THE CORPORATION
WHICH HAS ONLY TRADE AND COMMERCIAL CREDITORS.  THE CONTRAST BETWEEN
THE PROCEDURES PRESCRIBED MAKES IT PLAIN THAT CONGRESS INTENDED THAT
ALL PUBLIC SECURITY HOLDERS SHOULD HAVE THE PROTECTION AFFORDED BY
CHAPTER X AND THAT CHAPTER XI SHOULD BE CONFINED TO CORPORATIONS WITH
ONLY TRADE AND COMMERCIAL CREDITORS. 

THIS CONCLUSION IS CONFIRMED BY ANALYSIS OF THE PRESENT RECORD WHICH
STRIKINGLY SHOWS THE INADEQUACY OF THE PROCEDURE PRESCRIBED BY CHAPTER
XI FOR A CORPORATION IN WHICH THERE IS A PUBLIC INVESTOR INTEREST.  IT
IS ALSO CONFIRMED BY THE LEGISLATIVE HISTORY OF THE STATUTE WHICH
DEMONSTRATES THAT IN ENACTING CHAPTERS X AND XI CONGRESS HAD CLEARLY IN
MIND THE DISTINCTION BETWEEN A CLOSELY HELD CORPORATION AND A
CORPORATION WITH SECURITIES OUTSTANDING IN THE HANDS OF THE PUBLIC. 

THE DISTRICT COURT SHOULD HAVE DISMISSED THE PETITION BECAUSE NO
"FAIR AND EQUITABLE" PLAN CAN BE CONSUMMATED IN THE PROCEEDING AND NO
ARRANGEMENT CAN BE PROPOSED IN GOOD FAITH.  CHAPTER XI PROVIDES ONLY
FOR THE MODIFICATION OF UNSECURED OBLIGATIONS; UNDER THIS CHAPTER,
THEREFORE, ALTERATION OF THE GUARANTY ON THE TRINITY CERTIFICATES MUST
BE ACCOMPLISHED WITHOUT ALTERING THE DEBTOR'S LARGE STOCK ISSUE AND
PROBABLY ALSO WITHOUT MODIFYING ITS DEBENTURES.  YET THE TRINITY
CERTIFICATE HOLDERS HAVE A CLAIM AGAINST THE DEBTOR WHICH MUST BE
SATISFIED BEFORE THE STOCKHOLDERS RECEIVE ANYTHING AND WHICH RANKS ON A
PAR WITH THAT OF THE DEBENTURE HOLDERS, SINCE THE SECURITY BEHIND THE
DEBENTURES IS VALUELESS.  NO PLAN WHICH MODIFIED THE DEBTOR'S
OBLIGATION ON THE GUARANTY BUT LEFT THE STOCKHOLDERS AND PERHAPS ALSO
THE DEBENTURE HOLDERS UNAFFECTED WOULD BE "FAIR AND EQUITABLE" AS
REQUIRED BY SEC. 366(3); YET SUCH A PLAN IS THE ONLY ONE WHICH COULD BE
CONSUMMATED UNDER CHAPTER XI.  A DISCLOSURE THAT A PLAN CANNOT BE
CONSUMMATED IN THE PROCEEDING GOES TO THE JURISDICTION AND REQUIRES
DISMISSAL. 

MOREOVER, UNDER THE CIRCUMSTANCES PRESENTED IN THIS CASE, NO
ARRANGEMENT PROPOSED CAN MEET THE REQUIREMENT OF "GOOD FAITH" CONTAINED
IN SEC. 366(5).  AND, EVEN APART FROM THE "GOOD FAITH" PROVISION, THE
DISTRICT COURT SHOULD HAVE DISMISSED THE PROCEEDING ON THE GROUND THAT
THE PROCEDURE PRESCRIBED BY CHAPTER X WAS MORE APPROPRIATE. 

THE HOLDING OF THE COURT BELOW THAT THE DISTRICT COURT SHOULD NOT
HAVE PERMITTED THE COMMISSION TO INTERVENE IN THE PROCEEDING IS CLEARLY
ERRONEOUS.  IN EFFECT, THE DECISION ESTABLISHES THE PRINCIPLE THAT, IN
THE ABSENCE OF EXPRESS STATUTORY PROVISION, A GOVERNMENTAL AGENCY MAY
NEVER INTERVENE TO PROTECT THE PUBLIC FROM EVASION OR EMASCULATION OF
THE STATUTE UNDER WHICH THE AGENCY FUNCTIONS, UNLESS THE AGENCY HAS
SOME PROPERTY OR PECUNIARY RIGHT AFFECTED BY THE LITIGATION.  THIS
DRASTIC RESTRICTION UPON THE POWER OF THE GOVERNMENT TO PROTECT THE
PUBLIC INTEREST FINDS NO SUPPORT IN PRECEDENT OR POLICY. 

THE INTEREST OF THE COMMISSION IN THE PRESENT PROCEEDING IS TWOFOLD. 
FIRST, AS THE AGENCY DESIGNATED BY CONGRESS TO PARTICIPATE IN CHAPTER X
PROCEEDINGS ON BEHALF OF PUBLIC INVESTORS, IT HAS A VERY REAL INTEREST
IN ASSURING THAT SUCH INVESTORS ARE NOT DEPRIVED OF THE SAFEGUARDS
CONTAINED IN CHAPTER X THROUGH IMPROPER EXERCISE OF JURISDICTION UNDER
CHAPTER XI.  SECOND, IT HAS AN EQUALLY GREAT INTEREST IN PROTECTING ITS
OWN FUNCTIONS UNDER CHAPTER X FROM IMPAIRMENT THROUGH IMPROPER RESORT
TO CHAPTER XI BY CORPORATIONS WHICH SHOULD FILE UNDER CHAPTER X. THE
APPLICABLE DECISIONS OF THIS COURT CLEARLY ESTABLISH THAT THIS INTEREST
IS SUFFICIENT TO SUPPORT THE DISTRICT COURT'S ORDER PERMITTING THE
COMMISSION TO INTERVENE.  COLEMAN V. MILLER, 307 U.S. 433, 442, 466;
PENNSYLVANIA V. WILLIAMS, 294 U.S. 176; THE EXCHANGE, 7 CRANCH 116;
PERCY SUMMER CLUB V. ASTLE, 110 F. 486, 489; IN RE DEBS, 158 U.S. 564;
HOPKINS SAVINGS ASSN. V. CLEARY, 296 U.S. 315, 339-341; NEW YORK V. NEW
JERSEY, 256 U.S. 296, 307-308; UNITED STATES TRUST CO. V. CHICAGO
TERMINAL T.R. CO., 188 F. 292, 296.  CF. STATE V. SUPERIOR COURT FOR
WALLA WALLA COUNTY, 159 WASH. 335; 293 P. 986; STATE V. SUPERIOR COURT
OF MARION COUNTY, 202 IND. 589; 177 N.E. 322.  THERE CAN BE NO QUESTION
THAT IT WAS PROPERLY PERMITTED TO INTERVENE UNDER CLAUSE (B)(2) OF RULE
24. 

IF THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION IN PERMITTING
THE COMMISSION TO INTERVENE, THE COMMISSION HAD THE RIGHT TO APPEAL
FROM THE ORDERS DENYING ITS MOTION.  AN INTEREST SUFFICIENT TO WARRANT
INTERVENTION IS PLAINLY SUFFICIENT TO WARRANT APPEAL, AFTER
INTERVENTION, FROM A DECISION ADVERSE TO THAT INTEREST. 

THE RESTRICTION IMPOSED BY SEC. 208 DOES NOT APPLY. 

THE COMMISSION CONTENDS THAT A CORPORATION WITH SECURITIES
OUTSTANDING IN THE HANDS OF THE PUBLIC CAN NOT PROCEED UNDER CHAPTER
XI.  IT IS SUBMITTED THAT THIS CONCLUSION IS CLEARLY ERRONEOUS,
INASMUCH AS ANY CORPORATION WHICH CAN BECOME A BANKRUPT MAY BY THE
EXPRESS TERMS OF THE STATUTE INSTITUTE A PROCEEDING UNDER CHAPTER XI,
WHICH CONTAINS NO REQUIREMENT THAT THE DEBTOR'S SECURITIES SHALL NOT BE
PUBLICLY HELD.  THE STATUTE IS ENTIRELY REASONABLE AND IS SO CLEAR AND
UNAMBIGUOUS THAT THE COURTS ARE POWERLESS TO ENLARGE OR MODIFY ITS
MEANING UNDER THE GUISE OF "CONSTRUCTION."  UNDER THE PROVISIONS OF THE
ACT THE DEBTOR COULD NOT FILE A PETITION UNDER CHAPTER X UNLESS IT
COULD AFFIRMATIVELY SHOW THAT IT COULD NOT OBTAIN RELIEF UNDER CHAPTER
XI (SECS. 130, 146, 147). 

EVEN IF THIS WERE A PROPER CASE FOR CONSTRUCTION, NEITHER IN THE
TESTIMONY BEFORE THE CONGRESSIONAL COMMITTEES WHICH CONSIDERED THE
CHANDLER BILL, NOR IN THE COMMITTEE REPORTS, NOR IN THE FACTUAL
BACKGROUND AND HISTORICAL DERIVATION OF CHAPTER XI, NOR IN THE
STRUCTURE OF THE BANKRUPTCY ACT, CAN THERE BE FOUND EVIDENCE OF ANY
INTENT OF CONGRESS TO PROHIBIT CORPORATIONS WITH PUBLICLY HELD
SECURITIES FROM PROCEEDING UNDER CHAPTER XI.  IN FACT THE EVIDENCE IS
TO THE CONTRARY. 

THE FAIRNESS, EQUITY AND FEASIBILITY OF ANY ARRANGEMENT ARE NOT
PROPERLY IN ISSUE AT THIS TIME, INASMUCH AS THE DISTRICT COURT HAS NOT
YET CONFIRMED OR REFUSED TO CONFIRM ANY ARRANGEMENT. 

IT IS CLEAR THAT THIS DEBTOR CAN PROPOSE AN ARRANGEMENT WHICH MEETS
THE REQUIREMENTS OF CHAPTER XI.  THE ARRANGEMENT ORIGINALLY FILED,
WHICH IS TO SO GREAT AN EXTENT THE OBJECT OF THE COMMISSION'S
OBJECTIONS, HAS BEEN AMENDED IN SUBSTANTIAL RESPECTS AND IS NO LONGER
EVEN BEFORE THE DISTRICT COURT. 

NORTHERN PACIFIC R. CO. V. BOYD, 228 U.S. 482, AND CASE V. LOS
ANGELES LUMBER PRODUCTS CO., 308 U.S. 106, DO NOT APPLY TO A PROCEEDING
INSTITUTED UNDER CHAPTER XI FOR A SETTLEMENT OF UNSECURED DEBTS.  THE
USE OF THE PHRASE "FAIR AND EQUITABLE" IN BOTH CHAPTERS X AND XI IS NOT
SIGNIFICANT, SINCE THE SAME WORDS MAY HAVE DIFFERENT MEANINGS IN
DIFFERENT PARTS OF THE SAME STATUTE.  THAT PHRASE IS EMPLOYED IN ALL
THE DEBTOR RELIEF CHAPTERS OF THE BANKRUPTCY ACT, AND IT IS OBVIOUS
THAT IT CAN NOT HAVE THE MEANING ASCRIBED TO IT IN THE BOYD AND LOS
ANGELES CASES IN CHAPTERS SUCH AS CHAPTER XIII, WHICH APPLIES TO
COMPOSITIONS AND EXTENSIONS OF INDEBTEDNESS OF WAGE EARNERS.  HOWEVER,
EVEN IF SUCH DOCTRINE WERE HELD TO BE APPLICABLE, IT IS CLEAR THAT AN
ARRANGEMENT WHICH IS FAIR AND EQUITABLE THEREUNDER CAN BE PROPOSED BY
THE DEBTOR IN THIS PROCEEDING. 

THE SECURITIES AND EXCHANGE COMMISSION HAS NO AUTHORITY TO INTERVENE
IN A PROCEEDING UNDER CHAPTER XI EVEN WITH THE PERMISSION OF THE
COURT. 

THE COMMISSION HAS NO STATUS TO APPEAL FROM THE ORDERS OF THE
DISTRICT COURT.  CHAPTER XI DOES NOT AUTHORIZE SUCH AN APPEAL AND
CHAPTER X EXPRESSLY DENIES IT IN AN ANALOGOUS SITUATION.  FURTHERMORE,
THE COMMISSION IS NOT A PROPER PARTY TO APPEAL WITHIN SECS. 24 AND 25
OF THE BANKRUPTCY ACT OR WITHIN THE GENERAL PRINCIPLES REQUIRING AN
APPELLANT TO HAVE A REAL INTEREST IN THE PROCEEDING. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS ARE WHETHER RESPONDENT'S PETITION FOR AN ARRANGEMENT OF
ITS UNSECURED DEBTS UNDER CHAPTER XI OF THE BANKRUPTCY ACT SHOULD BE
DISMISSED BECAUSE THE RELIEF OBTAINABLE UNDER THAT CHAPTER IS
INADEQUATE, AND WHETHER THE SECURITIES AND EXCHANGE COMMISSION IS
ENTITLED TO RAISE AND LITIGATE THAT QUESTION BY INTERVENTION AND
APPEAL. 

RESPONDENT, A NEW JERSEY CORPORATION DOING BUSINESS IN NEW YORK AS
OWNER OF AND MANAGER OF REAL ESTATE INVESTMENTS, HAS OUTSTANDING
900,000 SHARES OF CAPITAL STOCK WITHOUT PAR VALUE, WHICH ARE LISTED ON
THE NEW YORK STOCK EXCHANGE AND ARE STATED BY RESPONDENT TO BE HELD BY
SOME SEVEN THOUSAND STOCKHOLDERS.  IT HAS LIABILITIES OF $5,051,416, OF
WHICH ONLY $74,916 IS CURRENT.  THIS INDEBTEDNESS INCLUDES TWO SERIES
OF PUBLICLY HELD DEBENTURES AGGREGATING $2,339,000, MATURING JANUARY 1,
1944, WHICH ARE SECURED BY A PLEDGE OF CORPORATE STOCK OF LITTLE VALUE
AND A $3,000,000 NOTE, DUE AUGUST 12, 1939, WHICH IS SECURED BY A FIRST
MORTGAGE OWNED BY RESPONDENT.  IN ADDITION RESPONDENT IS ALSO LIABLE AS
A GUARANTOR OF PAYMENT, PRINCIPAL AND INTEREST, AND SINKING FUND OF
MORTGAGE CERTIFICATES IN THE SUM OF $3,710,500, ISSUED BY ITS WHOLLY
OWNED SUBSIDIARY TRINITY BUILDING CORPORATION OF NEW YORK AND NOW IN
THE HANDS OF SOME NINE HUNDRED HOLDERS.  THESE CERTIFICATES HAVE BEEN
IN DEFAULT FOR FAILURE TO PAY INTEREST, PRINCIPAL AND SINKING FUND
SINCE JANUARY 1, 1939.  THEY ARE SECURED BY MORTGAGE OF REAL ESTATE AND
BUILDINGS WHICH ARE TRINITY'S ONLY SUBSTANTIAL ASSETS.  EACH YEAR SINCE
1936 RESPONDENT HAS SUFFERED A NET LOSS IN THE CONDUCT OF ITS BUSINESS
AND IS NOW UNABLE TO PAY ITS DEBTS AS THEY MATURE.  FN1 

BEFORE MATURITY OF THE FIRST MORTGAGE CERTIFICATES, RESPONDENT AND
THE TRINITY COMPANY JOINED IN PROPOSING TO CERTIFICATE HOLDERS A PLAN
FOR THE MODIFICATION OF THE OBLIGATION OF THE CERTIFICATES, LEAVING
UNAFFECTED THE OTHER INDEBTEDNESS AND STOCK OF RESPONDENT.  BY THIS
PLAN THE MATURITY OF THE CERTIFICATES WAS TO BE EXTENDED, THE RATE OF
INTEREST REDUCED, AND THE TERMS OF THE PROVISIONS FOR PAYMENT OF THE
SINKING FUND MODIFIED.  RESPONDENT'S GUARANTEE AS TO THE EXTENSION AND
INTEREST WAS TO BE MODIFIED ACCORDINGLY, AND ITS GUARANTEE OF SINKING
FUND PAYMENTS WAS TO BE ELIMINATED.  THE PLAN WAS TO BE CONSUMMATED BY
RESORT TO TWO PROCEEDINGS, ONE TO BE INSTITUTED BY RESPONDENT UNDER
CHAPTER XI OF THE BANKRUPTCY ACT, 11 U.S.C. SUPP. V, SEC. 701 ET SEQ.,
52 STAT. 840, 905, FOR AN "ARRANGEMENT" MODIFYING ITS GUARANTEE OF THE
CERTIFICATES IN THE MANNER ALREADY INDICATED.  THE OTHER WAS TO BE
INSTITUTED ON BEHALF OF TRINITY IN THE NEW YORK STATE COURTS UNDER THE
BURCHILL ACT, NEW YORK REAL PROPERTY LAW, SECS. 121-123, TO SECURE THE
APPROPRIATE MODIFICATION OF TRINITY'S PRIMARY OBLIGATION ON THE
CERTIFICATES.  THE PLAN PROVIDED THAT THE MODIFICATION OF RESPONDENT'S
GUARANTEE BY THE CHAPTER XI PROCEEDING SHOULD STAND, EVEN THOUGH THE
STATE COURT SHOULD REFUSE TO CONFIRM THE PROPOSED MODIFICATION OF
TRINITY'S OBLIGATION ON THE CERTIFICATES.  WHEN THE ASSENT TO THE PLAN
OF HOLDERS OF CERTIFICATES AMOUNTING TO APPROXIMATELY 55 PER CENT. IN
NUMBER AND AMOUNT, HAD BEEN OBTAINED, THE PRESENT PROCEEDING WAS BEGUN
MAY 31, 1939, BY THE FILING IN THE DISTRICT COURT FOR SOUTHERN NEW YORK
OF A PETITION PRAYING THAT THE PROPOSED "ARRANGEMENT" AFFECTING THE
UNSECURED INDEBTEDNESS OF RESPONDENT BE APPROVED. 

THE DISTRICT COURT FOUND THAT THE PETITION WAS PROPERLY FILED  FN2
UNDER SEC. 322 OF CHAPTER XI OF THE BANKRUPTCY ACT, AND DIRECTED THAT
RESPONDENT DEBTOR CONTINUE IN POSSESSION OF THE PROPERTY.  ON JULY 18,
1939, THE DISTRICT COURT ENTERED AN ORDER PERMITTING THE SECURITIES AND
EXCHANGE COMMISSION TO INTERVENE.  THE MOTIONS OF THE COMMISSION TO
VACATE THE ORDER APPROVING THE DEBTOR'S PETITION, TO DISMISS THE
PROCEEDING UNDER CHAPTER XI, AND TO DENY CONFIRMATION OF THE PROPOSED
ARRANGEMENT, WERE DENIED BY THE DISTRICT COURT AND THE CAUSE WAS
REFERRED TO A REFEREE FOR FURTHER PROCEEDINGS.  ON APPEAL BY THE
COMMISSION FROM THESE SEVERAL ORDERS AND ON APPEAL OF THE RESPONDENT
FROM THE ORDER OF THE DISTRICT COURT PERMITTING THE COMMISSION TO
INTERVENE, THE APPEALS BEING CONSOLIDATED AND HEARD TOGETHER, THE COURT
OF APPEALS FOR THE SECOND CIRCUIT REVERSED THE ORDER PERMITTING THE
COMMISSION TO INTERVENE AND DISMISSED THE APPEAL OF THE COMMISSION. 
108 F.2D 794.  WE GRANTED CERTIORARI, 309 U.S. 649, THE QUESTIONS
RAISED BEING OF PUBLIC IMPORTANCE IN THE ADMINISTRATION OF THE
BANKRUPTCY ACT.    THE COURT OF APPEALS HELD THAT THE PROCEEDING TO
SECURE APPROVAL OF THE ARRANGEMENT, EMBODIED IN THE PLAN PROPOSED BY
RESPONDENT, WAS PROPERLY BROUGHT UNDER CHAPTER XI OF THE BANKRUPTCY
ACT; THAT THE INTERVENTION BY THE COMMISSION WAS NOT AUTHORIZED BY ANY
PROVISION OF THE BANKRUPTCY ACT AND THAT IT HAD NO INTEREST AFFECTED BY
THE PROCEEDING UNDER THAT CHAPTER ENTITLING IT TO INTERVENE UNDER THE
APPLICABLE RULES CONTROLLING INTERVENTION IN THE FEDERAL COURTS, AND
THAT CONSEQUENTLY IT WAS NOT AGGRIEVED BY THE ORDER APPEALED FROM AND
SO WAS NOT ENTITLED TO MAINTAIN ITS APPEAL. 

THE COMMISSION ARGUES THAT CHAPTER X OF THE BANKRUPTCY ACT PRESCRIBES
THE EXCLUSIVE PROCEDURE FOR REORGANIZATION OF A LARGE CORPORATION
HAVING ITS SECURITIES OUTSTANDING IN THE HANDS OF THE PUBLIC SUCH AS
RESPONDENT N3, AND THAT CONSEQUENTLY THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO ENTERTAIN RESPONDENT'S PETITION UNDER CHAPTER XI; THAT
IN ANY CASE THE DISTRICT COURT SHOULD HAVE DISMISSED THE PETITION
BECAUSE IN THE CIRCUMSTANCES NO FAIR AND EQUITABLE ARRANGEMENT
AFFECTING RESPONDENT'S UNSECURED CREDITORS ALONE SUCH AS IS PRESCRIBED
BY CHAPTER XI, CAN BE CONSUMMATED IN A PROCEEDING UNDER THAT CHAPTER. 
SUCH BEING THE STATUS OF THE CAUSE UNDER CHAPTER XI, THE COMMISSION
INSISTS THAT IT WAS PROPERLY ALLOWED TO INTERVENE IN ORDER TO PROTECT
THE INTEREST OF THE PUBLIC SPECIALLY COMMITTED TO ITS GUARDIANSHIP BY
THE PROVISIONS OF CHAPTER X, AND TO FORESTALL THE IMPAIRMENT OF ITS OWN
FUNCTIONS UNDER THAT CHAPTER BY AN UNAUTHORIZED OR IMPROPER RESORT BY
RESPONDENT TO CHAPTER XI, AND THAT FOR THE SAME REASON THE COMMISSION
WAS ENTITLED TO APPEAL FROM THE ORDER OF THE DISTRICT COURT REFUSING TO
DISMISS THE CHAPTER XI PROCEEDINGS. 

TO THIS IT IS ANSWERED, AS THE COURT OF APPEALS HELD, THAT
RESPONDENT, ALTHOUGH A LARGE CORPORATION WITH ITS SECURITIES WIDELY
DISTRIBUTED IN THE HANDS OF THE PUBLIC, IS NEVERTHELESS WITHIN THE
LITERAL TERMS OF CHAPTER XI, WHICH UNQUALIFIEDLY AUTHORIZES A DEBTOR TO
PETITION UNDER THAT CHAPTER FOR AN ARRANGEMENT WITH RESPECT TO ITS
UNSECURED INDEBTEDNESS, AND THAT THE DISTRICT COURT WAS ACCORDINGLY
BOUND TO ENTERTAIN THE PETITION, HOWEVER DESIRABLE IT MIGHT BE THAT THE
REORGANIZATION SHOULD PROCEED UNDER CHAPTER X, WHOSE PROCEDURE IS
BETTER ADAPTED IN CASES LIKE THE PRESENT TO PROTECT THE PUBLIC INTEREST
AND TO SECURE A FAIR AND EQUITABLE REORGANIZATION, THAN ARE THE
PROVISIONS OF CHAPTER XI. 

CHAPTER XI PROVIDES A SUMMARY PROCEDURE BY WHICH A DEBTOR MAY SECURE
JUDICIAL CONFIRMATION OF AN "ARRANGEMENT" OF HIS UNSECURED DEBTS.  THE
DEBTOR, WHO IS DEFINED AS A "PERSON WHO COULD BECOME A BANKRUPT UNDER
SEC. 4 OF THE ACT," SEC. 306(3), MAY, ACCORDING TO SECS. 4 AND 1(23),
BE ANY PERSON (WHICH INCLUDES CORPORATIONS), EXCEPT A MUNICIPAL,
RAILROAD, INSURANCE OR BANKING CORPORATION OR A BUILDING AND LOAN
ASSOCIATION.  THE DEBTOR FILES HIS ORIGINAL VOLUNTARY PETITION FOR AN
ARRANGEMENT IN SUCH A COURT AS WOULD HAVE JURISDICTION OF A PETITION IN
ORDINARY BANKRUPTCY  FN4 AND MUST FILE WITH THE PETITION THE PROPOSED
ARRANGEMENT.  SECS. 322, 323.  AN ARRANGEMENT IS DEFINED AS "ANY PLAN
OF A DEBTOR FOR THE SETTLEMENT, SATISFACTION, OR EXTENSION OF THE TIME
OF PAYMENT OF HIS UNSECURED DEBTS UPON ANY TERMS."  SEC. 306(1).  THE
UNSECURED DEBTORS MAY BE TREATED GENERALLY OR IN CLASSES.  SECS. 356,
357. 

IT IS EVIDENT THAT THE LANGUAGE OF THE SECTIONS TO WHICH WE HAVE
REFERRED IN TERMS CONFERS ON THE COURT JURISDICTION OF A PETITION FOR
AN ARRANGEMENT, WHICH THE PRESENT PETITION IS, FILED BY A DEBTOR, WHICH
THE RESPONDENT IS, IN THE TECHNICAL SENSE THAT IT CONFERS ON THE COURT
POWER TO MAKE ORDERS IN THE CAUSE WHICH ARE NOT OPEN TO COLLATERAL
ATTACK.  SEE PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, 180, ET SEQ. BUT
THE COMMISSION POINTS OUT THAT A PROCEEDING BEGUN UNDER CHAPTER X MAY
BE BEGUN AND CONTINUED UNDER THAT CHAPTER ONLY IF THE PETITION IS FILED
IN GOOD FAITH, SECS. 130(7), 143, 146(2), 221, AND THAT UNDER SEC.
146(2) "A PETITION SHALL BE DEEMED NOT TO BE FILED IN GOOD FAITH IF
...  (2) ADEQUATE RELIEF WOULD BE OBTAINABLE BY A DEBTOR'S PETITION
UNDER THE PROVISIONS OF CHAPTER XI"; THAT CHAPTER X, DEVISED AS A
SUBSTITUTE FOR THE EQUITY RECEIVERSHIP, IS SPECIALLY ADAPTED TO THE
REORGANIZATION OF LARGE CORPORATIONS WHOSE SECURITIES ARE HELD BY THE
PUBLIC, AND SETS UP A SPECIAL PROCEDURE FOR THE PROTECTION OF WIDELY
SCATERED SECURITY HOLDERS AND THE PUBLIC THROUGH THE INTERVENTION OF
THE COMMISSION, WHILE CHAPTER XI, WHICH IS PECULIARLY ADAPTED TO THE
SPEEDY COMPOSITION OF DEBTS OF SMALL INDIVIDUAL AND CORPORATE
BUSINESSES, OMITS THE MACHINERY FOR REORGANIZATION SET UP BY CHAPTER X,
AND CONTAINS NO PROVISION FOR PARTICIPATION BY THE COMMISSION IN A
PROCEEDING UNDER CHAPTER XI.  FROM THIS IT ARGUES THAT THE DISTRICT
COURT WAS WITHOUT JURISDICTION TO ENTERTAIN RESPONDENT'S PETITION UNDER
CHAPTER XI, AND THE READJUSTMENT OF ITS INDEBTEDNESS THROUGH JUDICIAL
ACTION CAN PROPERLY PROCEED ONLY WITH THE SAFEGUARDS, PUBLIC AND
PRIVATE, AFFORDED BY CHAPTER X. 

WHILE WE DO NOT DOUBT THAT IN GENERAL, AS WILL PRESENTLY APPEAR MORE
IN DETAIL, THE TWO CHAPTERS WERE SPECIFICALLY DEVISED TO AFFORD
DIFFERENT PROCEDURES, THE ONE ADAPTED TO THE REORGANIZATION OF
CORPORATIONS WITH COMPLICATED DEBT STRUCTURES AND MANY STOCKHOLDERS,
THE OTHER TO COMPOSITION OF DEBTS OF SMALL INDIVIDUAL BUSINESS AND
CORPORATIONS WITH FEW STOCKHOLDERS, WE FIND IN NEITHER CHAPTER ANY
DEFINITION OR CLASSIFICATION WHICH WOULD ENABLE US TO SAY THAT A
CORPORATION IS SMALL OR LARGE, ITS SECURITY HOLDERS FEW OR MANY, OR
THAT ITS SECURITIES ARE "HELD BY THE PUBLIC," SO AS TO PLACE THE
CORPORATION EXCLUSIVELY WITHIN THE JURISDICTION OF THE COURT UNDER ONE
CHAPTER RATHER THAN THE OTHER.  BUT GRANTING THE JURISDICTION OF THE
COURT, THE QUESTION REMAINS OF THE PROPRIETY, IN THE CIRCUMSTANCES, OF
ITS ORDER RETAINING JURISDICTION, AND OF THE EXTENT OF ITS DUTY TO GO
FORWARD WITH THE PROCEEDING UNDER CHAPTER XI IN THE FACE OF THE
CONTENTION THAT CHAPTER X ALONE AFFORDS A REMEDY ADEQUATELY PROTECTING
THE PUBLIC AND PRIVATE INTERESTS INVOLVED.  THE ANSWER TURNS NOT ON THE
COURT'S STATUTORY JURISDICTION TO ENTERTAIN A PROCEEDING UNDER CHAPTER
XI, BUT ON CONSIDERATIONS GROWING OUT OF THE PUBLIC POLICY OF THE ACT
FOUND BOTH IN ITS LEGISLATIVE HISTORY AND IN AN ANALYSIS OF ITS TERMS,
AND OF THE AUTHORITY OF THE COURT CLOTHED WITH EQUITY POWERS AND
SITTING IN BANKRUPTCY TO GIVE EFFECT TO THAT POLICY THROUGH ITS POWER
TO WITHHOLD RELIEF UNDER CHAPTER XI WHEN RELIEF IS AVAILABLE UNDER
CHAPTER X, WHICH IS ADEQUATE AND MORE CONSONANT WITH THAT POLICY. 

BEFORE THE ENACTMENT OF SEC. 77B OF THE BANKRUPTCY ACT, 48 STAT. 911,
912, THE BANKRUPTCY MECHANISM WAS DESIGNED FOR THE FINAL LIQUIDATION OF
THE BANKRUPT'S ESTATE, EXCEPT TO THE EXTENT ONLY THAT A COMPROMISE WITH
CREDITORS WAS AUTHORIZED BY SECS. 12, 74.  BANKRUPTCY AFFORDED NO
FACILITIES FOR CORPORATION REORGANIZATION, WHICH, IN CONSEQUENCE, COULD
BE EFFECTED ONLY THROUGH RESORT TO THE EQUITY RECEIVERSHIP WITH ITS
CUSTOMARY MORTGAGE FORECLOSURES AND ITS ATTENDANT PARAPHERNALIA OF
CREDITORS' AND SECURITY HOLDERS' COMMITTEES, AND OF RIVAL
REORGANIZATION PLANS.  LACK OF KNOWLEDGE AND CONTROL BY THE COURT OF
THE CONDITIONS ATTENDING FORMULATION OF REORGANIZATION PLANS, THE
INADEQUATE PROTECTION OF WIDELY SCATTERED SECURITY HOLDERS, THE
FREQUENT ADOPTION OF PLANS WHICH FAVORED MANAGEMENT AT THE EXPENSE OF
OTHER INTERESTS, AND WHICH AFFORDED THE CORPORATION ONLY TEMPORARY
RESPITE FROM FINANCIAL COLLAPSE, SO OFTEN CHARACTERISTIC OF
REORGANIZATIONS IN EQUITY RECEIVERSHIPS, LED TO THE ENACTMENT OF 77B. 
FN5 

THE CREATION OF THE SECURITIES AND EXCHANGE COMMISSION, SPECIALLY
CHARGED BY VARIOUS STATUTES WITH THE PROTECTION OF THE INTERESTS OF THE
INVESTING PUBLIC,  FN6  AND OBSERVED INADEQUACIES OF SEC. 77B,  FN7
LED TO ITS REVISION AND ENACTMENT IN CHANGED FORM AS CHAPTER X, SO AS
TO PROVIDE FOR A LARGER MEASURE OF CONTROL BY THE COURT OVER SECURITY
HOLDERS' COMMITTEES AND THE FORMULATION OF REORGANIZATION PLANS AND TO
SECURE IMPARTIAL AND EXPERT ADMINISTRATIVE ASSISTANCE IN CORPORATE
REORGANIZATIONS THROUGH PARTICIPATION OF THE COMMISSION.  EXCEPT WHERE
THE LIABILITIES ARE LESS THAN $250,000, CHAPTER X REQUIRES THE
APPOINTMENT OF A DISINTERESTED TRUSTEE, SECS. 156-158, AND A THOROUGH
EXAMINATION AND STUDY BY THE TRUSTEE OF THE DEBTOR'S FINANCIAL PROBLEMS
AND MANAGEMENT, SEC. 167(3)(5).  THE TRUSTEE IS REQUIRED TO REPORT THE
RESULT OF HIS STUDY, TO SEND THE REPORT TO ALL SECURITY HOLDERS WITH
NOTICE TO SUBMIT TO HIM PROPOSALS FOR A PLAN OF REORGANIZATION, SEC.
167(5)(6).  HE THEN FORMULATES A PLAN OR REPORTS THE REASONS WHY A PLAN
CANNOT BE FORMULATED, SEC. 169.  BY SEC. 176 CONSENT TO A PLAN IN
ADVANCE OF ITS INITIAL APPROVAL BY THE JUDGE IS VOID UNLESS PROCURED
WITH HIS CONSENT.  A LARGE MEASURE OF CONTROL IS GIVEN TO THE COURT
OVER THE REORGANIZATION AND OF COMMITTEES OF SECURITY HOLDERS AND THEIR
COMPENSATION, SECS. 163, 165, 209, 212, 241-243. 

IF THE JUDGE FINDS THE PLAN PRESENTED WORTHY OF CONSIDERATION HE MAY
REFER IT TO THE COMMISSION FOR REPORT AND MUST DO SO WHERE THE
LIABILITIES OF THE DEBTOR, AS IN THE PRESENT CASE, EXCEED $3,000,000,
SEC. 172.  WHEN THE PLAN IS SUBMITTED TO CREDITORS AFTER APPROVAL BY
THE JUDGE IT IS ACCOMPANIED BY THE REPORT OF THE COMMISSION AND THE
OPINION OF THE JUDGE APPROVING THE PLAN, SEC. 175.  THE COMMISSION WITH
THE APPROVAL OF THE COURT IS AUTHORIZED TO PARTICIPATE GENERALLY IN THE
PROCEEDINGS AS A PARTY, AND IT IS ITS DUTY TO DO SO UPON REQUEST OF THE
COURT, SEC. 208. 

NO COMPARABLE SAFEGUARDS ARE FOUND IN CHAPTER XI.  FN8  EVERY PHASE
OF THE PROCEDURE BEARING ON THE ADMINISTRATION OF THE ESTATE AND THE
DEVELOPMENT OF THE ARRANGEMENT IS UNDER THE CONTROL OF THE DEBTOR.  THE
PROCESS OF FORMULATING AN ARRANGEMENT AND THE SOLICITATION OF CONSENT
OF CREDITORS, SACRIFICES TO SPEED AND ECONOMY EVERY SAFEGUARD, IN THE
INTEREST OF THOROUGHNESS AND DISINTERESTEDNESS, PROVIDED IN CHAPTER X.
THE DEBTOR IS GENERALLY PERMITTED TO STAY IN POSSESSION AND OPERATE THE
BUSINESS UNDER THE SUPERVISION OF THE COURT, SEC. 342, AND A TRUSTEE IS
PROVIDED FOR ONLY IN THE CASE WHERE A TRUSTEE IN BANKRUPTCY HAS
PREVIOUSLY BEEN APPOINTED AND IS IN POSSESSION, OR IF "NECESSARY" A
RECEIVER MAY BE APPOINTED.  SEC. 332.  THE DEBTOR PROPOSES THE
ARRANGEMENT, SECS. 306(1), 323, 357, AND THE ONLY OPPORTUNITY AFFORDED
THE CREDITORS IN RESPECT TO THE PROPOSED PLAN IS TO ACCEPT OR REJECT IT
AS SUBMITTED BY THE DEBTOR.  ACCEPTANCES MAY BE SOLICITED EITHER BEFORE
OR AFTER FILING THE PETITION AND ALWAYS BEFORE APPROVAL OF THE PLAN BY
THE COURT, SEC. 336(4).  SECTION 361 AUTHORIZES CONFIRMATION OF AN
ARRANGEMENT WHEN ACCEPTED BY ALL THE CREDITORS AFFECTED BY IT, "IF THE
COURT IS SATISFIED THAT THE ARRANGEMENT AND THE ACCEPTANCE ARE IN GOOD
FAITH," AND SEC. 362 PERMITS CONFIRMATION IF ONLY A MAJORITY OF THE
CREDITORS AFFECTED ACCEPT.  THE ARRANGEMENT IS TO BE CONFIRMED IF THE
COURT IS SATISFIED THAT "(1) THE PROVISIONS OF THIS CHAPTER HAVE BEEN
COMPLIED WITH; (2) IT IS FOR THE BEST INTERESTS OF THE CREDITORS; (3)
IT IS FAIR AND EQUITABLE AND FEASIBLE  ...  ; AND (5) THE PROPOSAL AND
ITS ACCEPTANCE ARE IN GOOD FAITH ...  "  SEC. 366. 

THERE ARE NO PROVISIONS FOR AN INDEPENDENT STUDY OF THE DEBTOR'S
AFFAIRS BY COURT OR TRUSTEE, OR FOR ADVICE BY THEM TO CREDITORS WITH
RESPECT TO THEIR RIGHTS OR INTERESTS IN ADVANCE OF THEIR CONSENT TO THE
ARRANGEMENT.  COMMITTEES OF THE CREDITORS ARE PERMITTED, SECS. 334,
338, BUT THERE IS NO RESTRICTION ON OR SUPERVISION OVER THEIR SELECTION
AND CONDUCT AS IN CHAPTER X. THE ARRANGEMENT MAY BE CONSUMMATED AT THE
CONCLUSION OF A SINGLE CREDITORS' MEETING.  THE COURT IN PASSING UPON
THE ARRANGEMENT, IS WITHOUT THE BENEFIT OF INVESTIGATION AND STUDY BY
THE TRUSTEE OR COMMISSION, WHICH CONGRESS HAS REQUIRED IN
REORGANIZATION PROCEEDINGS UNDER CHAPTER X, AND IS THEN FACED WITH THE
FACT THAT A MAJORITY OF THE CREDITORS HAVE ALREADY ACCEPTED THE PLAN. 

STILL MORE IMPORTANT ARE THE DIFFERENCES IN THE REMEDIES OBTAINABLE
UNDER THE TWO CHAPTERS WHICH RESULT FROM DIFFERENCES IN THE NATURE OF
THE TWO PROCEEDINGS AND IN THE SECURITIES WHICH MAY BE AFFECTED BY
THEM.  A PLAN UNDER CHAPTER X MAY AFFECT ONE OR MORE CLASSES OF DEBTS
OR SECURITIES OF THE CORPORATION TO BE REORGANIZED, AND A SUBSIDIARY OF
THE DEBTOR MAY BE BROUGHT INTO SUCH A PROCEEDING AND REORGANIZED WITH
THE DEBTOR.  SEC. 129.  UNDER CHAPTER XI ONLY THE RIGHTS OF UNSECURED
CREDITORS OF THE DEBTOR MAY BE ARRANGED AND THIS WITHOUT ALTERATION OF
THE STATUS OF ANY OTHER CLASSES OF SECURITY HOLDERS OR OF
SUBSIDIARIES.  BOTH CHAPTERS PROVIDE FOR CONFIRMATION OF THE PLAN OR
ARRANGEMENT BY THE JUDGE "IF SATISFIED THAT" IT "IS FAIR AND EQUITABLE
AND FEASIBLE" AND IF "THE PROPOSAL" OF THE PLAN OR ARRANGEMENT "AND ITS
ACCEPTANCE ARE IN GOOD FAITH," SECS. 221, 366.  "FAIR AND EQUITABLE,"
TAKEN FROM SEC. 77B AND MADE THE CONDITION OF CONFIRMATION UNDER BOTH
CHAPTER X OR CHAPTER XI ARE "WORDS OF ART" HAVING A WELL UNDERSTOOD
MEANING IN REORGANIZATIONS IN EQUITABLE RECEIVERSHIPS AND UNDER SEC.
77B WHICH IS INCORPORATED IN THE STRUCTURE OF BOTH CHAPTERS X AND XI.
SEE CASE V. LOS ANGELES LUMBER PRODUCTS CO., 308 U.S. 106, 115, ET SEQ.
THE PHRASE SIGNIFIES THAT THE PLAN OR ARRANGEMENT MUST CONFORM TO THE
RULE OF NORTHERN PACIFIC RY. CO. V. BOYD, 228 U.S. 482, WHICH
ESTABLISHED THE PRINCIPLE WHICH WE RECENTLY APPLIED IN THE LOS ANGELES
CASE, THAT IN ANY PLAN OF CORPORATE REORGANIZATION UNSECURED CREDITORS
ARE ENTITLED TO PRIORITY OVER STOCKHOLDERS TO THE FULL EXTENT OF THEIR
DEBTS AND THAT ANY SCALING DOWN OF THE CLAIMS OF CREDITORS WITHOUT SOME
FAIR COMPENSATING ADVANTAGE TO THEM WHICH IS PRIOR TO THE RIGHTS OF
STOCKHOLDERS IS INADMISSIBLE.    SINCE THE SECTIONS UNDER CHAPTER XI
ALREADY CONSIDERED ADMIT OF AN "ARRANGEMENT" ONLY WITH RESPECT TO
UNSECURED CREDITORS WITHOUT ALTERATION OF THE RELATIONS OF ANY OTHER
CLASS OF SECURITY HOLDERS, AND SINCE IT CONTEMPLATES, AS REQUIRED BY
SEC. 366, THAT THE ARRANGEMENT SHALL BE FAIR AND EQUITABLE WITHIN THE
MEANING OF THE BOYD CASE, IT IS EVIDENT THAT CHAPTER XI GIVES NO
APPROPRIATE SCOPE FOR AN ARRANGEMENT OF AN UNSECURED INDEBTEDNESS HELD
BY SOME NINE HUNDRED INDIVIDUAL CREDITORS OF A CORPORATION HAVING SEVEN
THOUSAND STOCKHOLDERS.  THE HOPE OF SECURING AN ARRANGEMENT WHICH IS
FAIR AND EQUITABLE AND IN THE BEST INTERESTS OF UNSECURED CREDITORS,
WITHOUT SOME READJUSTMENT OF THE RIGHTS OF STOCKHOLDERS SUCH AS MAY BE
HAD UNDER CHAPTER X, BUT IS PRECLUDED BY CHAPTER XI, IS AT BEST BUT
NEGLIGIBLE, AND, IF ACCOMPLISHED AT ALL, MUST BE WITHOUT THE AIDS TO
THE PROTECTION OF CREDITORS AND THE PUBLIC INTEREST WHICH ARE PROVIDED
BY CHAPTER X, AND WHICH WOULD SEEM TO BE INDISPENSABLE TO A JUST
DETERMINATION WHETHER THE PLAN IS FAIR AND EQUITABLE. 

RESPONDENT SUGGESTS THAT THE PROPOSED ARRANGEMENT MAY BE TAKEN TO
SATISFY THE TEST OF THE BOYD CASE SINCE UNDER IT THE CERTIFICATE
HOLDERS WOULD RECEIVE A NEW GUARANTEE, ENFORCIBLE AS TO PRINCIPAL
NOTWITHSTANDING THE NEW YORK MORATORIUM LAW, IN PLACE OF THE OLD
GUARANTEE TO WHICH THAT LAW APPLIES.  SEE HONEYMAN V. HANAN, 275 N.Y.
382; 9 N.E.2D 970, APPEAL DISMISSED 302 U.S. 375.  IT ALSO INSISTS THAT
IT IS NOT IMPOSSIBLE THAT AN ARRANGEMENT OF ITS UNSECURED INDEBTEDNESS
UNDER CHAPTER XI MAY BE PROPOSED WHICH WOULD MEET THE TEST.  IT STATES
THAT, AVAILING ITSELF OF THE PRIVILEGE AFFORDED BY SEC. 363, IT HAS
PROPOSED AN AMENDED ARRANGEMENT WHICH IS NOT IN THE RECORD AND THE
TERMS OF WHICH ARE NOT DISCLOSED.  BUT IT SUGGESTS THAT THE ARRANGEMENT
COULD BE AMENDED SO AS TO PROVIDE FOR A RATABLE DISTRIBUTION TO
CERTIFICATE HOLDERS OF PREFERRED STOCK OF TRINITY, RESPONDENT'S
SUBSIDIARY, HELD BY RESPONDENT OR FOR A SIMILAR DISTRIBUTION OF CASH. 
BUT SUCH SUGGESTIONS RAISE THE QUESTION WHETHER THE SUPPOSED ADVANTAGE
TO THE CREDITORS IS A FAIR AND ADEQUATE SUBSTITUTE FOR THE ELIMINATION
OF STOCKHOLDERS WITHIN THE REQUIREMENTS OF THE BOYD CASE - A QUESTION
WHICH OBVIOUSLY CANNOT BE ANSWERED WITH ANY ASSURANCE IN THE PRESENT
CASE WITHOUT RESORT TO THE FACILITIES FOR INVESTIGATION OF THE
FINANCIAL CONDITION AND STRUCTURE OF THE DEBTOR AND ITS SUBSIDIARY, AND
TO THE EXPERT AID AND ADVICE OF THE COMMISSION AVAILABLE UNDER CHAPTER
X. 

CONFIRMATION OF AN ARRANGEMENT FOLLOWS A FINDING OF THE COURT THAT IT
IS FOR THE BEST INTERESTS OF THE CREDITORS, SEC. 366(2).  HERE
DETERMINATION OF WHAT IS IN THE "BEST INTEREST OF THE CREDITORS"
DEPENDS ON THE ANSWER TO THE QUESTION WHETHER THE STOCKHOLDERS SHOULD
BE ELIMINATED OR THE CREDITORS SHOULD RECEIVE SOME SUBSTITUTE
COMPENSATION, AND WHETHER THAT COMPENSATION IS FAIR AND EQUITABLE.  IN
A SITUATION LIKE THE PRESENT IT IS IN THE BEST INTERESTS OF THE
CREDITORS THAT THESE QUESTIONS SHOULD BE ANSWERED IN A CHAPTER X
PROCEEDING. 

WHILE THIS MEANS THAT ARRANGEMENTS OF UNSECURED DEBTS OF
CORPORATIONS, LIKE RESPONDENT, MAY NOT BE "IN THE BEST INTERESTS OF
CREDITORS" AND "FEASIBLE" UNDER CHAPTER XI, IT DOES NOT MEAN THAT THERE
IS NO SCOPE FOR APPLICATION OF THAT CHAPTER IN MANY CASES WHERE THE
DEBTOR'S FINANCIAL BUSINESS AND CORPORATE STRUCTURE DIFFER FROM
RESPONDENT'S.  THIS IS ESPECIALLY THE CASE WITH SMALL INDIVIDUAL OR
CORPORATE BUSINESS WHERE THERE ARE NO PUBLIC OR PRIVATE INTERESTS
INVOLVED REQUIRING PROTECTION BY THE PROCEDURE AND REMEDIES AFFORDED BY
CHAPTER X. IN CASES WHERE SUBORDINATE CREDITORS OR THE STOCKHOLDERS ARE
THE MANAGERS OF ITS BUSINESS, THE PRESERVATION OF GOING-CONCERN VALUE
THROUGH THEIR CONTINUED MANAGEMENT OF THE BUSINESS MAY COMPENSATE FOR
REDUCTION OF THE CLAIMS OF THE PRIOR CREDITORS WITHOUT ALTERATION OF
THE MANAGEMENT'S INTERESTS, WHICH WOULD OTHERWISE BE REQUIRED BY THE
BOYD CASE.  SEE CASE V. LOS ANGELES LUMBER PRODUCTS CO., SUPRA, 121,
122. 

UNDER SEC. 146(2) A PETITION MAY NOT BE FILED UNDER CHAPTER X UNLESS
THE JUDGE IS SATISFIED THAT "ADEQUATE RELIEF" WOULD NOT BE OBTAINABLE
UNDER CHAPTER XI.  OBVIOUSLY THE ADEQUACY OF THE RELIEF UNDER CHAPTER
XI MUST BE APPRAISED IN COMPARISON WITH THAT TO BE HAD UNDER CHAPTER X,
AND IN THE LIGHT OF ITS EFFECT ON ALL THE PUBLIC AND PRIVATE INTERESTS
CONCERNED INCLUDING THOSE OF THE DEBTOR.  APPLYING THIS TEST, IF
RESPONDENT HAD PROCEEDED UNDER CHAPTER X THE JUDGE WOULD HAVE BEEN
COMPELLED UPON INQUIRY TO APPROVE ITS PETITION ON THE GROUND THAT IT
COMPLIED WITH THE REQUIREMENTS OF CHAPTER X, AND THAT ADEQUATE RELIEF
COULD NOT BE OBTAINED UNDER CHAPTER XI.  THAT BEING THE CASE THE
QUESTION HERE IS WHETHER, IN THE ABSENCE OF ANY PROVISION OF CHAPTER XI
SPECIFICALLY AUTHORIZING THE DISMISSAL OF THE PETITION, THE DISTRICT
COURT SHOULD ON THAT GROUND HAVE DISMISSED THE PROCEEDING UNDER CHAPTER
XI, LEAVING RESPONDENT FREE TO PROCEED UNDER CHAPTER X, WHICH AFFORDS
EVERY REMEDY WHICH COULD BE OBTAINED UNDER CHAPTER XI AND MORE. 

A BANKRUPTCY COURT IS A COURT OF EQUITY, SEC. 2, 11 U.S.C. SEC. 11,
AND IS GUIDED BY EQUITABLE DOCTRINES AND PRINCIPLES EXCEPT IN SO FAR AS
THEY ARE INCONSISTENT WITH THE ACT.  BARDES V. HAWARDEN BANK, 178 U.S.
524, 534, 535; CONTINENTAL ILLINOIS NAT. BANK & T. CO. V. CHICAGO, R.I.
& P. RY. CO., 294 U.S. 648, 675; WAYNE UNITED GAS CO. V. OWENS-ILLINOIS
GLASS CO., 300 U.S. 131; PEPPER V. LITTON, 308 U.S. 295.  A COURT OF
EQUITY MAY IN ITS DISCRETION IN THE EXERCISE OF THE JURISDICTION
COMMITTED TO IT GRANT OR DENY RELIEF UPON PERFORMANCE OF A CONDITION
WHICH WILL SAFEGUARD THE PUBLIC INTEREST.  IT MAY IN THE PUBLIC
INTEREST, EVEN WITHHOLD RELIEF ALTOGETHER, AND IT WOULD SEEM THAT IT IS
BOUND TO STAY ITS HAND IN THE PUBLIC INTEREST WHEN IT REASONABLY
APPEARS THAT PRIVATE RIGHT WILL NOT SUFFER.  PENNSYLVANIA V. WILLIAMS,
SUPRA, 185 AND CASES CITED; VIRGINIAN RY. CO. V. FEDERATION, 300 U.S.
515, 549, ET SEQ. BEFORE THE PROVISIONS FOR ALTERNATIVE REMEDIES WERE
BROUGHT INTO THE BANKRUPTCY ACT BY CHAPTERS X AND XI THE OCCASION WAS
RARE WHEN A COURT COULD HAVE FELT FREE TO DENY A PETITION IN ORDER TO
SERVE SOME PUBLIC OR COLLATERAL INTEREST AT THE EXPENSE OF THE
PETITIONER'S RIGHT TO AN ADJUDICATION.  BUT HERE RESPONDENT, IF
DISMISSED, NEED NOT GO WITHOUT REMEDY.  ALL THAT IT CAN SECURE RIGHTLY
OR EQUITABLY IN A CHAPTER XI PROCEEDING IS TO BE HAD IN A CHAPTER X
PROCEEDING.  THE CASE STATED MOST FAVORABLY TO RESPONDENT IS THAT IT
HAS PROPOSED AN ARRANGEMENT WHICH APPEARS ON ITS FACE NOT TO BE "FAIR
AND EQUITABLE" AND HENCE NOT TO BE ENTITLED TO CONFIRMATION UNDER
CHAPTER XI.  RESPONDENT'S CIRCUMSTANCES, AS DISCLOSED BY ITS PETITION
AND PROPOSED ARRANGEMENT, ARE SUCH AS TO RAISE A SERIOUS QUESTION
WHETHER ANY FAIR AND EQUITABLE ARRANGEMENT IN THE BEST INTEREST OF
CREDITORS CAN BE EFFECTED WITHOUT SOME RE-ARRANGEMENT OF ITS CAPITAL
STRUCTURE.  IN ANY CASE, THAT AND SUBSIDIARY QUESTIONS CANNOT BE
ANSWERED IN THE BEST INTEREST OF CREDITORS WITHOUT RECOURSE TO THE
PROCEDURE OF A CHAPTER X PROCEEDING.  PENDING THE LITIGATION RESPONDENT
SEEKS TO STAY THE HAND OF ITS CREDITORS AND IN THE MEANTIME TO AVOID
THAT INQUIRY INTO ITS FINANCIAL CONDITION AND PRACTICES AND ITS
BUSINESS PROSPECTS, PROVIDED FOR BY CHAPTER X, WITHOUT WHICH THERE IS
AT LEAST DANGER THAT ANY ADJUSTMENT OF ITS INDEBTEDNESS WILL NOT BE
JUST AND EQUITABLE, AND THAT ITS REVIVED FINANCIAL LIFE WILL BE TOO
SHORT TO SERVE ANY PUBLIC OR PRIVATE INTEREST OTHER THAN THAT OF
RESPONDENT. 

IN THIS SITUATION, WE THINK THE COURT WAS AS FREE TO DETERMINE
WHETHER THE RELIEF AFFORDED BY CHAPTER XI WAS ADEQUATE AS IT WOULD HAVE
BEEN IF RESPONDENT HAD FILED ITS PETITION UNDER CHAPTER X.  WHAT THE
COURT CAN DECIDE UNDER SEC. 146 OF CHAPTER X AS TO THE ADEQUACY OF THE
RELIEF AFFORDED BY CHAPTER XI, IT CAN DECIDE IN THE EXERCISE OF ITS
EQUITY POWERS UNDER CHAPTER XI FOR THE PURPOSE OF SAFEGUARDING THE
PUBLIC AND PRIVATE INTERESTS INVOLVED AND PROTECTING ITS OWN
JURISDICTION FROM MISUSE.  HERE, WE THINK IT WAS PLAINLY THE DUTY OF
THE DISTRICT COURT IN THE EXERCISE OF A SOUND DISCRETION TO HAVE
DISMISSED THE PETITION, REMITTING RESPONDENT IF IT WAS SO ADVISED TO
THE INITIATION OF A PROCEEDING UNDER CHAPTER X, IN WHICH IT MAY SECURE
A REORGANIZATION WHICH, AFTER STUDY AND INVESTIGATION APPROPRIATE TO
ITS CORPORATE BUSINESS STRUCTURE AND OWNERSHIP, IS FOUND TO BE FAIR,
EQUITABLE AND FEASIBLE, AND IN THE BEST INTEREST OF CREDITORS.  WHILE A
BANKRUPTCY COURT CANNOT, BECAUSE OF ITS OWN NOTIONS OF EQUITABLE
PRINCIPLES, REFUSE TO AWARD THE RELIEF WHICH CONGRESS HAS ACCORDED THE
BANKRUPT, THE REAL QUESTION IS, WHAT IS THE RELIEF WHICH CONGRESS HAS
ACCORDED THE BANKRUPT AND IS IT MORE LIKELY TO BE SECURED IN A CHAPTER
X OR CHAPTER XI PROCEEDING?  IN ANSWERING IT WE CANNOT ASSUME THAT
CONGRESS HAS DISREGARDED WELL SETTLED PRINCIPLES OF EQUITY, THE MORE SO
WHEN CONGRESS ITSELF HAS PROVIDED THAT THE RELIEF TO BE GIVEN SHALL BE
"FAIR AND EQUITABLE AND FEASIBLE."  GOOD SENSE AND LEGAL TRADITION
ALIKE ENJOIN THAT AN ENACTMENT OF CONGRESS DEALING WITH BANKRUPTCY
SHOULD BE READ IN HARMONY WITH THE EXISTING SYSTEM OF EQUITY
JURISPRUDENCE OF WHICH IT IS A PART. 

IF RESPONDENT HAD SOUGHT RELIEF BY WAY OF AN EQUITY RECEIVERSHIP SUCH
WOULD HAVE BEEN THE DUTY OF THE COURT.  PENNSYLVANIA V. WILLIAMS,
SUPRA.  WE THINK IT IS NO LESS SO HERE.  BEFORE THE ENACTMENT OF
CHAPTERS X AND XI, THE DISTRICT COURT IN A 77B PROCEEDING WAS "NOT
BOUND TO CLOG ITS DOCKET WITH VISIONARY OR IMPRACTICABLE SCHEMES OF
RESUSCITATION," HOWEVER HONEST THE EFFORTS OF THE DEBTOR AND HOWEVER
SINCERE ITS MOTIVES, AND IT WAS ITS DUTY TO DISMISS THE PROCEEDING
WHENEVER IT APPEARED THAT A FAIR AND EQUITABLE PLAN WAS NOT FEASIBLE,
LEAVING THE DEBTOR TO THE ALTERNATIVE REMEDY OF BANKRUPTCY LIQUIDATION,
SEE TENNESSEE PUBLISHING CO. V. AMERICAN NATIONAL BANK, 299 U.S. 18,
22.  AND IT HAS LONG BEEN THE PRACTICE OF BANKRUPTCY COURTS TO PERMIT
CREDITORS OR OTHERS NOT ENTITLED TO FILE PLEADINGS OR OTHERWISE CONTEST
THE ALLEGATIONS OF A PETITION, TO MOVE FOR THE VACATION OF AN
ADJUDICATION OR THE DISMISSAL OF A PETITION ON GROUNDS, WHETHER
STRICTLY JURISDICTIONAL OR NOT,  FN9  THAT THE PROCEEDING OUGHT NOT TO
BE ALLOWED TO PROCEED. 

THE COURT OF APPEALS THOUGHT THAT THE COMMISSION HAD NO SUCH SPECIAL
INTEREST AS TO ENTITLE IT TO INTERVENE AS OF RIGHT IN THE CHAPTER XI
PROCEEDING AND CONCLUDED THAT THE DISTRICT COURT ERRED IN PERMITTING
THE INTERVENTION AND THAT FROM THIS IT FOLLOWED THAT THE COMMISSION HAD
NO RIGHT TO APPEAL.  ITS DECISION IS IN EFFECT THAT A GOVERNMENTAL
AGENCY NOT ASSERTING THE RIGHT TO POSSESSION OR CONTROL OF SPECIFIC
PROPERTY INVOLVED IN A LITIGATION MAY NOT BE PERMITTED TO INTERVENE
WITHOUT STATUTORY AUTHORITY.  NEITHER CHAPTER X NOR CHAPTER XI, IN
TERMS, GIVES A RIGHT OF "INTERVENTION," BUT THE COMMISSION IS
AUTHORIZED, WITH THE PERMISSION OF THE COURT, TO APPEAR IN ANY CHAPTER
X PROCEEDINGS, SEC. 208.  SUCH RIGHT AS THE COMMISSION MAY HAVE TO
INTERVENE IN A CHAPTER XI PROCEEDING IS, THEREFORE, GOVERNED BY THE
RULES OF CIVIL PROCEDURE AND THE GENERAL PRINCIPLES GOVERNING
INTERVENTION.  WE ARE NOT HERE CONCERNED WITH THE REFINEMENTS OF THE
DISTINCTION BETWEEN INTERVENTION, AS A MATTER OF RIGHT, WHICH THE COURT
OF APPEALS THOUGHT WAS RESTRICTED TO CASES WHERE THE INTERVENOR HAS A
DIRECT PECUNIARY INTEREST IN THE LITIGATION, AND PERMISSIVE
INTERVENTION, A DISTINCTION WHICH HAS BEEN PRESERVED BY RULE 24 OF THE
RULES OF CIVIL PROCEDURE.  FOR HERE THE QUESTION IS NOT OF THE
COMMISSION'S INTERVENTION "AS OF RIGHT," BUT WHETHER THE DISTRICT COURT
ABUSED ITS DISCRETION IN PERMITTING IT TO INTERVENE. 

THE COMMISSION IS, AS WE HAVE SEEN, CHARGED WITH THE PERFORMANCE OF
IMPORTANT PUBLIC DUTIES IN EVERY CASE BROUGHT UNDER CHAPTER X, WHICH
WILL BE THWARTED, TO THE PUBLIC INJURY, IF A DEBTOR MAY SECURE
ADJUSTMENT OF HIS DEBTS IN A CHAPTER XI PROCEEDING WHEN, UPON THE
APPLICABLE PRINCIPLES WHICH WE HAVE DISCUSSED, HE SHOULD BE REQUIRED TO
PROCEED, IF AT ALL, UNDER CHAPTER X. THE COMMISSION'S DUTY AND ITS
INTEREST EXTEND NOT ONLY TO THE PERFORMANCE OF ITS PRESCRIBED FUNCTIONS
WHERE A PETITION IS FILED UNDER CHAPTER X, BUT TO THE PREVENTION, SO
FAR AS THE RULES OF PROCEDURE PERMIT, OF INTERFERENCES WITH THEIR
PERFORMANCE THROUGH IMPROPER RESORT TO A CHAPTER XI PROCEEDING IN
VIOLATION OF THE PUBLIC POLICY OF THE ACT WHICH IT IS THE DUTY OF THE
COURT TO SAFEGUARD BY RELEGATING RESPONDENT TO A CHAPTER X PROCEEDING. 
THE COMMISSION DID NOT HERE INTERVENE TO PERFORM THE ADVISORY FUNCTIONS
REQUIRED OF IT BY CHAPTER X, BUT TO OBJECT TO AN IMPROPER EXERCISE OF
THE COURT'S JURISDICTION WHICH, IF PERMITTED TO CONTINUE, CONTRARY TO
THE COURT'S OWN EQUITABLE DUTY IN THE PREMISES, WOULD DEFEAT THE PUBLIC
INTERESTS WHICH THE COMMISSION WAS DESIGNATED TO REPRESENT.  SEN. REP.
NO. 1916, 75TH CONG., 3D SESS., P. 31. 

RULE 24 OF THE RULES OF CIVIL PROCEDURE, MADE APPLICABLE TO
BANKRUPTCY PROCEEDINGS BY PARAGRAPH 37 OF THE GENERAL ORDERS IN
BANKRUPTCY, AUTHORIZES "PERMISSIVE INTERVENTION."  IT DIRECTS THAT
"UPON TIMELY APPLICATION ANYONE MAY BE PERMITTED TO INTERVENE IN AN
ACTION  ...  (2) WHEN AN APPLICANT'S CLAIM OR DEFENSE AND THE MAIN
ACTION HAVE A QUESTION OF LAW OR FACT IN COMMON.  IN EXERCISING ITS
DISCRETION, THE COURT SHALL CONSIDER WHETHER THE INTERVENTION WILL
UNDULY DELAY OR PREJUDICE THE ADJUDICATION OF THE RIGHTS OF THE
ORIGINAL PARTIES."  THIS PROVISION PLAINLY DISPENSES WITH ANY
REQUIREMENT THAT THE INTERVENOR SHALL HAVE A DIRECT PERSONAL OR
PECUNIARY INTEREST IN THE SUBJECT OF THE LITIGATION.  CF. PENNSYLVANIA
V. WILLIAMS, SUPRA.  IF, AS WE HAVE SAID, IT WAS THE DUTY OF THE COURT
TO DISMISS THE CHAPTER XI PROCEEDING BECAUSE ITS MAINTENANCE THERE
WOULD DEFEAT THE PUBLIC INTEREST IN HAVING ANY SCHEME OF REORGANIZATION
OF RESPONDENT SUBJECTED TO THE SCRUTINY OF THE COMMISSION, WE THINK IT
PLAIN THAT THE COMMISSION HAS A SUFFICIENT INTEREST IN THE MAINTENANCE
OF ITS STATUTORY AUTHORITY AND THE PERFORMANCE OF ITS PUBLIC DUTIES TO
ENTITLE IT THROUGH INTERVENTION TO PREVENT REORGANIZATIONS, WHICH
SHOULD RIGHTLY BE SUBJECTED TO ITS SCRUTINY, FROM PROCEEDING WITHOUT
IT.  THE EXCHANGE, 7 CRANCH 116; STANLEY V. SCHWALBY, 147 U.S. 508;
INTERSTATE COMMERCE COMM'N V. OREGON-WASHINGTON R. CO., 288 U.S. 14;
PENNSYLVANIA V. WILLIAMS, SUPRA.  SEE, HOPKINS SAVINGS ASSN. V. CLEARY,
296 U.S. 315.  CF. IN RE DEBS, 158 U.S. 564; NEW YORK V. NEW JERSEY,
256 U.S. 296, 307-308. 

THIS INTEREST OF THE COMMISSION DOES NOT DIFFER FROM THAT OF A
LIQUIDATOR UNDER A STATE STATUTORY PROCEEDING WHO MAY, IN A PROPER
CASE, INTERVENE IN AN EQUITY RECEIVERSHIP IN A FEDERAL COURT TO ASK THE
COURT TO RELINQUISH ITS JURISDICTION IN FAVOR OF THE STATE PROCEEDING. 
PENNSYLVANIA V. WILLIAMS, SUPRA.  NEITHER THE LIQUIDATOR NOR THE STATE
HAS ANY PERSONAL, FINANCIAL OR PECUNIARY INTEREST IN THE PROPERTY IN
THE CUSTODY OF THE FEDERAL COURT.  THEIR ONLY INTEREST, LIKE THAT OF
THE COMMISSION, IS A PUBLIC ONE, TO MAINTAIN THE STATE AUTHORITY AND TO
SECURE A LIQUIDATION IN CONFORMITY TO STATE POLICY.  THE "CLAIM OR
DEFENSE" OF THE COMMISSION FOUNDED UPON THIS INTEREST HAS A QUESTION OF
LAW IN COMMON WITH THE MAIN PROCEEDING IN THE COURSE OF WHICH ANY PARTY
OR A CREDITOR COULD CHALLENGE THE PROPRIETY OF THE COURT'S PROCEEDING
UNDER CHAPTER XI. FN10  THE CLAIM OR DEFENSE IS THUS WITHIN THE
REQUIREMENT OF RULE 24 AND INTERVENTION WAS PROPERLY ALLOWED.  THE
COMMISSION WAS, THEREFORE, A PARTY AGGRIEVED BY THE COURT'S ORDER
REFUSING TO DISMISS AND WAS ENTITLED TO APPEAL UNDER SECS. 24 AND 25 OF
THE BANKRUPTCY ACT.  SEE INTERSTATE COMMERCE COMM'N V. OREGON
WASHINGTON R. CO., SUPRA; TEXAS V. ANDERSON, CLAYTON & CO., 92 F.2D
104. 

COMMISSION, UPON FILING ITS NOTICE OF APPEARANCE, "THE RIGHT TO BE
HEARD ON ALL MATTERS ARISING IN SUCH PROCEEDING," BUT PROVIDES THAT IT
"MAY NOT APPEAL OR FILE ANY PETITION FOR APPEAL IN ANY SUCH
PROCEEDING."  AS SEC. 208 HAS NO APPLICATION TO A PROCEEDING UNDER
CHAPTER XI, IT IS UNNECESSARY TO CONSIDER THE SUGGESTION OF THE
COMMISSION THAT THE LIMITATION OF THE SECTION IS UPON APPEALS TO REVIEW
QUESTIONS ARISING IN THE PROCEEDING FROM THE PERFORMANCE BY THE
COMMISSION OF ITS ADVISORY FUNCTIONS AND DOES NOT PRECLUDE IT FROM
APPEALING TO CHALLENGE THE EXERCISE OR NON-EXERCISE BY THE DISTRICT
COURT OF ITS JURISDICTION UNDER CHAPTER X. REVERSED. 

FN1  THE ALLEGED VALUE OF DEBTOR'S ASSETS IS $7,076,515.  OF THIS
$5,200,000 IS REPRESENTED BY THE STOCK OF THE SUBSIDIARY AND A FIRST
MORTGAGE ON A BUILDING OWNED BY THE SUBSIDIARY WHICH IS PLEDGED TO
SECURE RESPONDENT'S $3,000,000 NOTE.  CURRENT ASSETS ARE LESS THAN
$400,000.  THE BALANCE OF THE ASSETS CONSISTS CHIEFLY OF MORTGAGES,
LOANS AND OTHER SECURITIES IN THE AMOUNT OF $555,655, AN INVESTMENT OF
$477,300 IN SECURITIES OF AN INDEPENDENT COMPANY, UNIMPROVED REAL
ESTATE VALUED AT $290,000, AND A NOTE RECEIVABLE FROM A SUBSIDIARY OF
$137,500.  AS AGAINST THE TOTAL NOMINAL VALUE OF THESE ASSETS OF
$7,076,515, THE DEBTOR'S TOTAL LIABILITIES, INCLUDING ITS LIABILITY ON
THE MATURED DEBENTURE CERTIFICATES, ARE $9,261,916. 

FN2  THE RECORD SHOWS THAT COUNSEL FOR ONE OF THE COMMITTEES OF
BONDHOLDERS INTERPOSED OBJECTIONS TO THE CHAPTER XI PROCEEDINGS AND
PROPOSED TO FILE AN INVOLUNTARY PETITION UNDER CHAPTER X. THE DISTRICT
JUDGE EXPRESSED THE OPINION THAT A CHAPTER X PROCEEDING WAS PREFERABLE,
BUT WHEN THE DEBTOR AGREED TO MAKE AN IMMEDIATE INTEREST PAYMENT OF ONE
AND ONE-HALF PER CENT. FOR THE PURPOSE OF DISSUADING THE CREDITORS FROM
FILING THE CHAPTER X PETITION, AND WHEN THE OBJECTING CREDITORS
ACCEPTED THE OFFER AND DROPPED THE INVOLUNTARY PETITION, THE JUDGE FELT
COMPELLED TO CONTINUE THE CHAPTER XI PROCEEDING. 

FN3  BY SEC. 126 A CORPORATION OR THREE OR MORE CREDITORS MAY FILE A
PETITION UNDER CHAPTER X. 

BY SEC. 130 EVERY PETITION SHALL STATE: 

"(1)  THAT THE CORPORATION IS INSOLVENT OR UNABLE TO PAY ITS DEBTS AS
THEY MATURE; 

"(2)  THE APPLICABLE JURISDICTIONAL FACTS REQUISITE UNDER THIS
CHAPTER; 

.         .         .         .         . 

'(7)  THE SPECIFIC FACTS SHOWING THE NEED FOR RELIEF UNDER THIS
CHAPTER AND WHY ADEQUATE RELIEF CANNOT BE OBTAINED UNDER CHAPTER XI OF
THIS ACT; ...  " 

FN4  SEC. 311 CONFERS ON THE COURT IN WHICH THE PETITION IS FILED
EXCLUSIVE JURISDICTION OF THE DEBTOR AND HIS PROPERTY, WHERE NOT
INCONSISTENT WITH THE PROVISIONS OF THE CHAPTER. 

FN5  SEE S. DOC. NO. 65, 72D CONG., 1ST SESS., P. 90; H. REPT. NO.
1049, 75TH CONG., 1ST SESS., P. 2. 

FN6  THE BASIC ASSUMPTION OF CHAPTER X AND OTHER ACTS ADMINISTERED BY
THE COMMISSION IS THAT THE INVESTING PUBLIC DISSOCIATED FROM CONTROL OR
ACTIVE PARTICIPATION IN THE MANAGEMENT, NEEDS IMPARTIAL AND EXPERT
ADMINISTRATIVE ASSISTANCE IN THE ASCERTAINMENT OF FACTS, IN THE
DETECTION OF FRAUD, AND IN THE UNDERSTANDING OF COMPLEX FINANCIAL
PROBLEMS.  SEE, E.G., SECURITIES ACT OF 1933, 48 STAT. 74, 15 U.S.C.
SECS. 77A-77AA; SECURITIES AND EXCHANGE ACT OF 1934, 48 STAT. 881, 15
U.S.C. SEC. 78; PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, 49 STAT.
838, 15 U.S.C. SUPP. V, SEC. 79; TRUST INDENTURE ACT OF 1939, 53 STAT.
1149, 15 U.S.C. SUPP. V, SECS. 77AAA-77BBBB. 

FN7  THE REVISION OF 77B RESULTED FROM THE INVESTIGATION OF A SPECIAL
SENATE COMMITTEE TO INVESTIGATE RECEIVERSHIP AND BANKRUPTCY
PROCEEDINGS, S. DOC. NO. 268, 74TH CONG., 2D SESS.; AND FROM A STUDY BY
THE SECURITIES AND EXCHANGE COMMISSION OF THE DEGREE OF PROTECTION
AFFORDED TO THE INVESTING PUBLIC IN REORGANIZATIONS.  REPORT ON THE
STUDY AND INVESTIGATION OF THE WORK, ACTIVITIES, PERSONNEL AND
FUNCTIONS OF PROTECTIVE AND REORGANIZATION COMMITTEES (1936-1939).  SEE
HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY ON H.R. 8046, 75TH
CONG., 1ST SESS.; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY ON H.R. 8046, 75TH CONG., 2D SESS.; H. REPT.
NO. 1409, 75TH CONG., 1ST SESS.; S. REPT. NO. 1916, 75TH CONG., 3D
SESS.  SEE DODD, THE SECURITIES AND EXCHANGE COMMISSION'S REFORM
PROGRAM FOR BANKRUPTCY REORGANIZATIONS, 38 COL. L. REV. 223; SWAINE,
"DEMOCRATIZATION" OF CORPORATE REORGANIZATIONS, 38 COL. L. REV. 256;
HEUSTON, CORPORATE REORGANIZATIONS UNDER THE CHANDLER ACT, 38 COL. L.
REV. 1199; TETON, REORGANIZATION REVISED, 48 YALE L.J. 573; GERDES,
CORPORATE REORGANIZATIONS - CHANGES EFFECTED BY CHAPTER X OF THE
BANKRUPTCY ACT, 52 HARV. L. REV. 1; ROSTOW AND CUTLER, COMPETING
SYSTEMS OF REORGANIZATION, CHAPTERS X AND XI OF THE BANKRUPTCY ACT, 48
YALE L.J. 1334. 

FN8  CHAPTER XI WAS SPONSORED BY THE NATIONAL ASSOCIATION OF CREDIT
MEN AND OTHER GROUPS OF CREDITORS' REPRESENTATIVES EXPERT IN
BANKRUPTCY.  HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON
H.R. 6439(REINTRODUCED AND PASSED IN 1938 AS H.R. 8046), 75TH CONG.,
1ST SESS., PP. 31, 35.  THEIR BUSINESS OF REPRESENTING TRADE CREDITORS
IN SMALL AND MIDDLE-SIZED COMMERCIAL FAILURES IS AN IMPORTANT FACTOR IN
THE BACKGROUND OF THE CHAPTER.  SEE, MONTGOMERY, COUNSEL FOR THE
ASSOCIATION OF CREDIT MEN, ON ARRANGEMENTS, 13 J.N.A. REF. BANKRUPTCY,
17. 

FN9  ROYAL INDEMNITY CO. V. AMERICAN BOND & MORTGAGE CO., 61 F.2D
875, AFF'D 289 U.S. 165; IN RE ETTINGER, 76 F.2D 741; CHICAGO BANK OF
COMMERCE V. CARTER, 61 F.2D 986; VASSAR FOUNDRY CO. V. WHITING CORP., 2
F.2D 240; IN RE NASH, 249 F. 375. 

FN10  SEE NOTE 8 SUPRA. 

MR. JUSTICE DOUGLAS DID NOT PARTICIPATE IN THE DECISION OF THIS
CASE. 

MR. JUSTICE ROBERTS: 

THE CHANDLER ACT  FN1  REVISED THE BANKRUPTCY ACT OF 1898, AS
AMENDED, AND, IN CHAPTERS X, XI, XII, XIII, AND XIV, PROVIDED FOR
CORPORATE REORGANIZATIONS, ARRANGEMENTS, REAL PROPERTY ARRANGEMENTS,
WAGE EARNERS' PLANS, AND MARITIME COMMISSION LIENS.  THESE, WITH
CHAPTER VIII, AUTHORIZING AGRICULTURAL COMPOSITIONS, CHAPTER IX,
DEALING WITH INDEBTEDNESS OF LOCAL TAXING AGENCIES, CHAPTER XV, ADDED
BY ACT OF JULY 28, 1939, 53 STAT. 1134, AND SEC. 77, RELATING TO
REORGANIZATION OF INTERSTATE RAILROADS, IN ADDITION TO THE SEVEN
CHAPTERS OF THE ORIGINAL ACT, CONSTITUTE A COMPREHENSIVE SYSTEM FOR
ACCOMMODATING OR LIQUIDATING INDEBTEDNESS IN THE INTEREST OF BOTH
DEBTORS AND CREDITORS.  IN CHAPTERS X TO XIII, INCLUSIVE, ADDED BY THE
CHANDLER ACT, THE FIRST SECTION STATES:  "THE PROVISIONS OF THIS
CHAPTER SHALL APPLY EXCLUSIVELY TO PROCEEDINGS UNDER THIS CHAPTER,"
THUS EVIDENCING THE PURPOSE TO MAKE EACH TYPE OF PROCEEDING COMPLETE
AND EXCLUSIVE OF THE OTHERS. 

THE PROCEEDING INSTITUTED BY THE RESPONDENT, AS IS CONCEDED, FALLS
PRECISELY WITHIN THE TERMS OF CHAPTER XI, WHICH DEALS WITH
ARRANGEMENTS, AND CONFERS JURISDICTION ON THE DISTRICT COURT TO
ENTERTAIN THE CAUSE.  BUT IT IS SAID THAT FOR THE COURT TO EXERCISE
THAT JURISDICTION WOULD BE SO CONTRARY TO THE UNEXPRESSED PURPOSE OF
CONGRESS THAT THE COURT SHOULD HAVE REFUSED TO ACT.  THE DECISION
ASSUMES THAT IF CONGRESS HAD BEEN INTERROGATED AS TO ITS INTENT IT
WOULD HAVE EXPRESSED ITS WILL THAT AN ARRANGEMENT BY ONE HAVING SUCH A
FINANCIAL STRUCTURE AS THE RESPONDENT SHOULD NOT BE PERMITTED, AND
THAT, IN ORDER TO PREVENT SUCH A RESULT, CONGRESS, IF IT HAD BEEN
PRESCIENT, WOULD HAVE SO STATED.  THIS SEEMS TO ME TO GO BEYOND THE
CONSTRUCTION OF THE ACT AS IT IS WRITTEN AND TO AMOUNT TO AN AMENDMENT
OF IT.  I THINK THAT THIS IS NOT ADMISSIBLE ON THE GROUND ADVANCED THAT
TO HOLD OTHERWISE WOULD BE TO NULLIFY RATHER THAN TO EFFECTUATE THE
INTENT OF CONGRESS WHICH IS THOUGHT TO PERVADE THE STATUTORY SCHEME. 

WHERE THE WORDS ARE AS PLAIN AND UNAMBIGUOUS AS THEY ARE IN CHAPTER
XI, RECOURSE CANNOT BE HAD TO LEGISLATIVE HISTORY OR OTHER EXTRANEOUS
AIDS TO CONSTRUE THEM IN SOME OTHER SENSE, TO ADD TO, OR TO SUBTRACT
FROM, WHAT IS WRITTEN.  FN2 

BUT IF RESORT TO CONVENTIONAL AIDS TO CONSTRUCTION WERE ADMISSIBLE,
THEY SEEM TO ME TO CONFIRM THE STATUTORY RIGHT OF THE RESPONDENT TO
PROCEED UNDER CHAPTER XI AND TO PRECLUDE A HOLDING THAT IT SHOULD HAVE
PROCEEDED UNDER CHAPTER X. 

UNDER SEC. 12 OF THE BANKRUPTCY ACT OF 1898 A CORPORATION COULD
PROPOSE A COMPOSITION, BUT, AS RECOURSE TO BANKRUPTCY, WHETHER FOR THE
PURPOSE OF LIQUIDATION OR OF PROPOSING A COMPOSITION, WAS DEPENDENT
UPON INSOLVENCY AS DEFINED IN THE STATUTE RATHER THAN MERE INABILITY TO
PAY DEBTS AS THEY ACCRUED, A COMPANY FINDING ITSELF IN THE LATTER
CONDITION COULD NOT AVAIL ITSELF OF THE BANKRUPTCY JURISDICTION BUT HAD
TO RESORT TO AN EQUITY RECEIVERSHIP. 

IN 1932 THE SOLICITOR GENERAL, IN A REPORT TO THE PRESIDENT ON THE
BANKRUPTCY ACT AND ITS ADMINISTRATION,  FN3  POINTED OUT THE
DIFFICULTIES OF PROPOSING A COMPOSITION IN BANKRUPTCY AND SUGGESTED
RELIEF OF THE SORT WHICH WAS ULTIMATELY ACCORDED BY THE ADOPTION OF
SEC. 77B. 

BY AN ACT OF MARCH 3, 1933,  FN4  THERE WAS ADDED TO THE ACT A
PROVISION WHICH PERMITTED "ANY PERSON EXCEPTING A CORPORATION," BY
PETITION, OR BY ANSWER IN AN INVOLUNTARY PROCEEDING, TO ASSERT HIS
INSOLVENCY OR HIS INABILITY TO MEET HIS DEBTS AS THEY ACCRUED AND HIS
DESIRE TO EFFECT A COMPOSITION OR AN EXTENSION OF TIME TO PAY HIS
DEBTS, AND TO ADJUST HIS INDEBTEDNESS IN THAT WAY.  THUS AN ARRANGEMENT
PROCEDURE WAS PROVIDED FOR INDIVIDUALS WHO WERE NOT INSOLVENT IN THE
BANKRUPTCY SENSE.  THE SAME LEGISLATION ALSO PROVIDED FOR AGRICULTURAL
COMPOSITIONS AND EXTENSIONS AND FOR REORGANIZATIONS OF INTERSTATE
RAILROADS, BUT CONGRESS DID NOT, AT THAT TIME, AFFORD ANY FURTHER
RELIEF TO CORPORATIONS GENERALLY. 

BY THE ACT OF JUNE 7, 1934,  FN5  SEC. 77B WAS ADDED, PERMITTING THE
REORGANIZATION OF A CORPORATION UNABLE TO MEET ITS DEBTS AS THEY
MATURE. 

WHEN, BY THE CHANDLER ACT, CONGRESS DETERMINED TO REVISE AND CODIFY
THE ENTIRE BANKRUPTCY SYSTEM, IT REPEALED SEC. 12 AND SEC. 74, AND, IN
LIEU OF THEM, ADOPTED CHAPTER XI, PERMITTING ARRANGEMENTS OF UNSECURED
DEBTS BY INDIVIDUALS, PARTNERSHIPS, AND CORPORATIONS.  FN6  IT THUS
CLEARLY DREW A DISTINCTION BETWEEN A REORGANIZATION WHICH AFFECTS
VARIOUS CLASSES OF CREDITORS AND STOCKHOLDERS AND AN ARRANGEMENT WHICH
IS MERELY AN EXTENSION, ADJUSTMENT, OR ACCOMMODATION OF UNSECURED
CLAIMS WITHOUT DISTURBING EITHER SECURED CLAIMS OR STOCK INTERESTS. 
WHERE THIS SIMPLE FORM OF ACCOMMODATION WOULD SUFFICE, IT WAS NOT
INTENDED THAT THE CORPORATION SHOULD HAVE THE PRIVILEGE OF A
REORGANIZATION UNDER CHAPTER X, THE SUCCESSOR OF SEC. 77B, FOR IT IS
PROVIDED IN CHAPTER X (SEC. 146) THAT A PETITION SHALL NOT BE DEEMED TO
BE FILED IN GOOD FAITH IF ADEQUATE RELIEF WOULD BE OBTAINABLE BY A
DEBTOR'S PETITION UNDER THE PROVISIONS OF CHAPTER XI AND FURTHER (SEC.
147) THAT A PETITION FILED UNDER CHAPTER X IMPROPERLY, BECAUSE ADEQUATE
RELIEF CAN BE OBTAINED UNDER CHAPTER XI, MAY BE AMENDED TO COMPLY WITH
CHAPTER XI AND MAY BE PROCEEDED WITH AS IF ORIGINALLY FILED UNDER THE
LATTER.  NO SUCH PROVISION IS FOUND IN CHAPTER XI WITH RESPECT TO A
CASE PROPERLY FALLING UNDER CHAPTER X. OBVIOUSLY THE RIGHT TO PROCEED
UNDER CHAPTER X WAS DEEMED A PRIVILEGE OF WHICH A CORPORATION COULD NOT
AVAIL ITSELF IF IT COULD PROCEED UNDER CHAPTER XI. 

THE GRAVAMEN OF PETITIONER'S ARGUMENT IS THAT CONGRESS INTENDED THE
MORE DETAILED AND CUMBERSOME PROCEDURE OF CHAPTER X TO APPLY WHEREVER
SECURITIES OF THE CORPORATION WERE HELD BY THE PUBLIC WHEREAS CHAPTER
XI WAS INTENDED TO APPLY ONLY IN THE CASE OF INDIVIDUALS OR
CORPORATIONS NOT HAVING SUCH SECURITIES OUTSTANDING.   THE ACT WILL BE
SEARCHED IN VAIN FOR ANY HINT OF SUCH A DISTINCTION.  SMALL
CORPORATIONS ARE PERMITTED TO AVAIL THEMSELVES OF CHAPTER X IF
STOCKHOLDERS' OR SECURED CREDITORS' RIGHTS ARE TO BE AFFECTED; LARGE
CORPORATIONS, UNDER THE VERY LETTER OF CHAPTER XI, MAY AVAIL THEMSELVES
OF ITS PROVISIONS IF ALL THEY DESIRE TO DO IS TO EXTEND OR ACCOMMODATE
THEIR UNSECURED INDEBTEDNESS.  THE SMALLEST CORPORATION CANNOT COME IN
UNDER CHAPTER XI IF IT DESIRES WHAT HAS BEEN TRADITIONALLY KNOWN AS A
REORGANIZATION.  THE LARGEST CORPORATION MAY PROCEED UNDER CHAPTER XI
IF IT DOES NOT DESIRE A REORGANIZATION.    THE ARGUMENT OF THE
COMMISSION COMES MERELY TO THIS:  THAT FORESIGHT AND PROVIDENCE ON THE
PART OF CONGRESS WOULD HAVE DICTATED A DIFFERENT LINE OF DEMARCATION
BETWEEN THE TWO CHAPTERS AND THAT WHAT CONGRESS SHOULD HAVE SAID IN
CHAPTER XI WAS THAT ANY DEBTOR WHICH DID NOT HAVE SECURITIES
OUTSTANDING IN THE HANDS OF THE PUBLIC MIGHT FILE A PETITION UNDER
CHAPTER XI BUT THAT ALL OTHERS MUST FILE UNDER CHAPTER X. 

THE LEGISLATIVE HISTORY FURNISHES BUT THE SCANTIEST SUPPORT FOR THE
ARGUMENT.  INDEED IT BEARS QUITE AS STRONGLY AGAINST THE COMMISSION'S
CONTENTION AS IN ITS FAVOR.  THE ONLY ITEM TO WHICH COUNSEL IS ABLE TO
POINT IS A COMMITTEE REPORT TO THE HOUSE  FN7  WHEREIN IT IS SAID: 

"SECTION 12 HAS BEEN RECAST; SUCH FEATURES OF SECTION 74 ARE
INCORPORATED AS ARE DEEMED OF VALUE, AND THE COMBINED SECTIONS ARE MADE
CHAPTER XI OF THE ACT UNDER THE TITLE 'ARRANGEMENTS' ...  THE INCLUSION
OF CORPORATIONS WILL PERMIT A LARGE NUMBER OF THE SMALLER COMPANIES
SUCH AS ARE NOW SEEKING RELIEF UNDER SECTION 77B BUT DO NOT REQUIRE THE
COMPLEX MACHINERY OF THAT SECTION, TO RESORT TO THE SIMPLER AND LESS
EXPENSIVE, THOUGH FULLY ADEQUATE, RELIEF AFFORDED BY SECTION 12." 

IT IS UNDOUBTEDLY TRUE THAT MANY MORE SMALL CORPORATIONS WILL FIND
CHAPTER XI AVAILABLE THAN LARGE ONES BUT THIS DOES NOT AT ALL SUPPORT
THE COMMISSION'S CLAIM THAT THE CHAPTER WAS NOT INTENDED TO BE
AVAILABLE TO COMPANIES HAVING SECURITIES IN THE HANDS OF THE PUBLIC. 

ON THE OTHER HAND, TESTIMONY BEFORE THE CONGRESSIONAL COMMITTEE WAS
TO THE EFFECT THAT LARGE CORPORATIONS WOULD NOT COME UNDER CHAPTER X IF
THEY WERE SEEKING MERELY TO ADJUST THEIR UNSECURED DEBTS AND SHOULD GO,
THEREFORE, UNDER CHAPTER XI.  FN8 

ONE OF THE DRAFTSMEN OF THE CHANDLER ACT, IN A PUBLIC EXPOSITION,
FN9  HAS SAID: 

"WHAT IS THE LINE OF DEMARCATION BETWEEN PROCEEDINGS UNDER CHAPTER X
AND CHAPTER XI?  WITHOUT ATTEMPTING TO GO INTO DETAIL, CHAPTER XI
PROCEEDINGS ARE INTENDED FOR THE REORGANIZATION OF CORPORATIONS WITH
SIMPLE DEBT STRUCTURES - REORGANIZATIONS UNDER WHICH THE INTERESTS OF
STOCKHOLDERS AND SECURED CREDITORS ARE NOT TO BE MODIFIED OR
READJUSTED.  IF SECURED CLAIMS OR STOCK INTERESTS ARE TO BE CHANGED
WITHOUT THE CONSENT OF ALL OF THE STOCKHOLDERS AND SECURED CREDITORS,
PROCEEDINGS MUST BE INSTITUTED UNDER CHAPTER X." 

THAT CHAPTERS X AND XI WERE NOT WRITTEN IN IGNORANCE OF THE
DISTINCTION BETWEEN CORPORATIONS HAVING PUBLICLY OWNED SECURITIES AND
THOSE WHICH HAVE NOT, IS SHOWN BY THE FACT THAT A SPECIAL COMMITTEE'S
REPORT CALLED ATTENTION TO THIS DIFFERENCE AND SUGGESTED THAT
CORPORATIONS NOT HAVING SUCH SECURITIES OUTSTANDING BE PERMITTED TO GO
UNDER THE ARRANGEMENTS CHAPTER WHEREAS THE FIRST NAMED SHOULD BE
REQUIRED TO FILE UNDER WHAT IS NOW CHAPTER X. FN10  WITH THIS
SUGGESTION BEFORE IT CONGRESS ADOPTED A DIFFERENT CRITERION. 

WHEN ALL IS CONSIDERED IT IS EVIDENT THAT LITTLE SUPPORT FOR THE
COMMISSION'S ARGUMENT CAN BE GAINED FROM THE LEGISLATIVE HISTORY.  IT
IS OF NO AVAIL TO URGE THAT IT WOULD HAVE BEEN FAR BETTER FOR CONGRESS
TO ADOPT A DIFFERENT SCHEME AND THAT THE PUBLIC INTEREST WHICH CONGRESS
HAD IN MIND IN WRITING CHAPTER X EXTENDS QUITE AS MUCH TO A COMPOSITION
SUCH AS THAT PROPOSED IN THE INSTANT CASE AS TO THE REORGANIZATIONS
ENVISAGED IN CHAPTER X. THESE CONSIDERATIONS MAY WELL BE URGED UPON
CONGRESS IN SUPPORT OF AN AMENDMENT OF THE STATUTE BUT THEY CAN HAVE NO
WEIGHT WITH A COURT CALLED UPON TO APPLY ITS PLAIN LANGUAGE. 

EQUALLY UNAVAILING IS THE ARGUMENT THAT THE PRESENT CASE MUST BELONG
UNDER CHAPTER X SINCE SECURED CREDITORS AND STOCKHOLDERS MUST BE
BROUGHT INTO THE RECKONING AND BECAUSE ONE OF THE REQUIREMENTS OF SEC.
366 IS THAT THE COURT MUST FIND THE ARRANGEMENT IS "FAIR AND EQUITABLE
AND FEASIBLE."  IT IS SAID THAT THIS PHRASE IS A TERM OF ART, GIVEN
MEANING BY OUR DECISION IN NORTHERN PACIFIC R. CO. V. BOYD, 228 U.S.
482, AND THAT, WITHIN THAT MEANING, NO FAIR, EQUITABLE, AND FEASIBLE
PLAN CAN HERE BE ACCOMPLISHED UNDER CHAPTER XI ALTHOUGH IT COULD BE
UNDER CHAPTER X. 

THE SHORT ANSWER IS THAT THE PHRASE IS USED NOT ONLY IN CHAPTER XI
AND CHAPTER X BUT ALSO IN CHAPTER XII RESPECTING REAL PROPERTY
ARRANGEMENTS, AND IN CHAPTER XIII RESPECTING WAGE EARNERS' PLANS.  FN11
OBVIOUSLY THE PHRASE AS USED IN THE CHANDLER ACT MUST BE GIVEN THE
CONNOTATION APPROPRIATE TO THE SECTION IN WHICH IT IS USED. 

ANOTHER ARGUMENT PUT FORWARD IS THAT, AS COURTS OF BANKRUPTCY ARE
COURTS OF EQUITY, THEY MAY, AS A CHANCELLOR MIGHT IN THE CASE OF A BILL
FOR RECEIVERSHIP, FIND THAT THE BALANCE OF CONVENIENCE REQUIRES A
REFUSAL TO EXERCISE A JURISDICTION POSSESSED.  I THINK THIS IS A
COMPLETE MISAPPLICATION OF THE PRINCIPLE THAT A COURT OF BANKRUPTCY IS
A COURT OF EQUITY.  THAT HAS BEEN MANY TIMES STATED BUT NEVER IN
CONNECTION WITH THE RIGHT OF A DEBTOR TO INVOKE THE REMEDY PROVIDED BY
CONGRESS IN THE BANKRUPTCY LAWS.  THE LEGISLATURE HAS SPECIFIED WHO IS
ENTITLED TO THE RELIEF PROVIDED BY THE STATUTE AND IN WHAT
CIRCUMSTANCES.  THE COURT HAS NO POWER TO REFUSE THAT RELIEF ON THE
GROUND THAT SOME OTHER RELIEF WOULD BETTER SERVE THE PURPOSE.  WHAT IS
MEANT BY THE STATEMENT THAT A COURT OF BANKRUPTCY IS A COURT OF EQUITY
IS THAT ITS FUNCTION IS TO MAKE AN EQUITABLE DISTRIBUTION OF THE ESTATE
AMONG THE CREDITORS, BUT THE PRINCIPLE HAS NOT BEEN APPLIED IN THE
SENSE THAT THE COURT MAY, IN ITS BETTER JUDGMENT, REFUSE TO AWARD THE
RELIEF WHICH CONGRESS HAS ACCORDED THE BANKRUPT. 

NO STOCKHOLDER OR CREDITOR, SECURED OR UNSECURED, HAS ATTEMPTED TO
RAISE THE QUESTION OF THE DISTRICT COURT'S JURISDICTION UNDER CHAPTER
XI.  THE SECURITIES AND EXCHANGE COMMISSION, ALTHOUGH CHARGED WITH NO
DUTY BY THE ACT IN CONNECTION WITH PROCEEDINGS UNDER CHAPTER XI, HAS
SOUGHT TO INTERVENE AND TO APPEAL FROM A DECISION BY THE DISTRICT COURT
ADVERSE TO THE COMMISSION'S VIEWS.  ALTHOUGH THE COMMISSION MAY BE
PERMITTED TO APPEAR IN CHAPTER X PROCEEDINGS, IT IS EXPRESSLY PROVIDED
THAT IT MAY NOT APPEAL FROM ANY DECISION.  FN12  NO ANALOGOUS PROVISION
IS FOUND IN CHAPTER XI ALTHOUGH THAT CHAPTER DOES, IN CERTAIN
INSTANCES, GRANT INTERESTED PARTIES THE RIGHT TO BE HEARD.  FN13 

BY GENERAL ORDER THE RULES OF CIVIL PROCEDURE ARE MADE APPLICABLE IN
BANKRUPTCY SO FAR AS PRACTICABLE.  IT IS SUGGESTED THAT RULE 24
AUTHORIZES THE COMMISSION'S INTERVENTION BUT A MERE READING OF THE RULE
SHOWS THAT NEITHER INTERVENTION OF RIGHT, NOR PERMISSIVE INTERVENTION,
IS AVAILABLE TO THE COMMISSION IN THIS CASE.  THE COMMISSION MAY NOT
INTERVENE AS OF RIGHT UNDER THE RULE BECAUSE NO STATUTE CONFERS ON IT
AN UNCONDITIONAL RIGHT TO INTERVENE; THE COMMISSION HAS NO INTEREST
WHICH MAY BE BOUND BY A JUDGMENT IN THE ACTION; AND IT CANNOT BE
ADVERSELY AFFECTED BY THE COURT'S DECISION.  IT IS NOT ENTITLED TO
PERMISSIVE INTERVENTION BECAUSE NO STATUTE CONFERS A CONDITIONAL RIGHT
TO INTERVENE AND BECAUSE IT HAS NO CLAIM OR DEFENSE WHICH WILL BE
AFFECTED BY ANY DECISION OF LAW OR FACT BY THE COURT.  THE CASES IN
WHICH BANKRUPTCY COURTS HAVE ALLOWED CREDITORS TO RAISE QUESTIONS OF
VENUE OR OF JURISDICTION TO ADJUDICATE UNDER THE TERMS OF THE STATUTE,
WHERE THE PROCEEDING WOULD AFFECT THE CREDITORS' FINANCIAL INTEREST,
ARE INAPPOSITE, AS ARE ALSO EQUITY RECEIVERSHIP CASES WHERE AN OFFICIAL
INTERVENES IN ORDER TO CLAIM THE RIGHT, AS SUCH OFFICIAL, TO TAKE OVER
AND ADMINISTER THE PROPERTY IN THE POSSESSION OF THE COURT. 

I AM OF THE OPINION THAT THE JUDGMENT SHOULD BE AFFIRMED. 

FN1  ACT OF JUNE 22, 1938, 52 STAT. 840. 

FN2  THOMPSON V. UNITED STATES, 246 U.S. 547, 551; ISELIN V. UNITED
STATES, 270 U.S. 245, 250; UNITED STATES V. MISSOURI PACIFIC R. CO.,
278 U.S. 269, 277; UNITED STATES V. SHREVEPORT GRAIN & ELEVATOR CO.,
287 U.S. 77, 83; HELVERING V. CITY BANK FARMERS TRUST CO., 296 U.S. 85,
89; WALLACE V. CUTTEN, 298 U.S. 229, 237; OSAKA SHOSEN LINE V. UNITED
STATES, 300 U.S. 98, 101; PALMER V. MASSACHUSETTS, 308 U.S. 79, 83. 

FN3  SEN. DOC. 65, 72D CONG., 1ST SESS. 

FN4  47 STAT. 1467, SEC. 74. 

FN5  48 STAT. 911. 

FN6  11 U.S.C. SECS. 706, 707. 

FN7  H. REP. 1409, 75TH CONG., 1ST SESS., PP. 50-51. 

FN8  HEARINGS, SUBCOMMITTEE SENATE JUDICIARY COMMITTEE ON H.R. 8046,
75TH CONG., 2D SESS., P. 75. 

FN9  JOURNAL OF THE NATIONAL ASSOCIATION OF REFEREES IN BANKRUPTCY
(JAN. 1939), P. 72. 

FN10  SEN. DOC. 268, 74TH CONG., 2D SESS., PP. 9-15. 

FN11  SEE SECS. 472 AND 656, 11 U.S.C. SECS. 872, 1056. 

FN12  SEC. 208, 11 U.S.C. SEC. 608. 

FN13  SECS. 334 AND 365, 11 U.S.C. SECS. 734 AND 765. 

THE CHIEF JUSTICE AND MR. JUSTICE MCREYNOLDS AGREE WITH THIS
OPINION. 
..END :



APEX HOSIERY CO. V. LEADER, 310 U.S. 469 


NO. 638.  ARGUED APRIL 1, 2, 1940.  - DECIDED MAY 27, 1940.  - 108 F.2D
71, AFFIRMED. 


MEMBERS OF A LABOR UNION, BENT ON UNIONIZING A HOSIERY FACTORY IN
WHICH BUT A FEW OF THEM WERE EMPLOYED, FORCIBLY, AND IN VIOLATION OF
CIVIL AND CRIMINAL LAWS OF THE STATE, TOOK POSSESSION OF THE PLANT AND
HELD IT DURING A PROTRACTED "SIT-DOWN" STRIKE, DURING WHICH MUCH OF THE
MACHINERY WAS WILLFULLY INJURED OR DESTROYED AND DURING WHICH THE
BUSINESS, LARGELY INTERSTATE, WAS ENTIRELY SUSPENDED.  WHEN THE PLANT
WAS SEIZED THERE WERE ON HAND 130,000 DOZEN PAIRS OF FINISHED HOSE, OF
A VALUE OF $800,000, READY FOR SHIPMENT ON UNFILLED ORDERS, MOSTLY
DESTINED TO POINTS OUTSIDE OF THE STATE.  SHIPMENT WAS PREVENTED BY THE
STRIKERS, WHO REPEATEDLY REFUSED REQUESTS MADE BY THE OWNER FOR
PERMISSION TO REMOVE THE MERCHANDISE FOR SHIPMENT IN FILLING THE
ORDERS.  IT WAS NOT SHOWN THAT THE INTERRUPTION OF BUSINESS CAUSED BY
THE STRIKE AFFECTED OR WAS INTENDED TO AFFECT COMPETITION AND PRICES IN
THE MARKET.  HELD: 

1.  THAT THERE WAS NO CONSPIRACY "IN RESTRAINT OF TRADE OR COMMERCE
AMONG THE SEVERAL STATES" WITHIN THE MEANING OF THE SHERMAN ANTI-TRUST
ACT, AND THAT, THEREFORE, THE DISTRICT COURT IN A SUIT BY THE EMPLOYER,
BASED ON THE ACT, IN WHICH THERE WAS NO DIVERSITY OF CITIZENSHIP, WAS
WITHOUT JURISDICTION TO GIVE JUDGMENT FOR THE DAMAGES SUFFERED BY THE
EMPLOYER.  FIRST CORONADO CASE, 259 U.S. 344; UNITED LEATHER WORKERS V.
HERKERT, 265 U.S. 457, FOLLOWED.  PP. 481, 486. 

2.  THE EFFECT OF THE STRIKE WAS TO RESTRICT SUBSTANTIALLY THE
INTERSTATE TRANSPORTATION OF THE MANUFACTURED PRODUCT, SO AS TO BRING
THE ACTS CAUSING IT WITHIN THE REACH OF THE COMMERCE POWER, BUT THE
QUESTION FOR DECISION IS NOT ONE OF CONSTITUTIONAL POWER BUT OF THE
EXTENT TO WHICH CONGRESS HAS EXERCISED IT UNDER THE SHERMAN ACT.  P.
484. 

3.  THE JURY'S VERDICT MUST BE TAKEN, IN VIEW OF THE INSTRUCTIONS OF
THE COURT, AS A FINDING SUPPORTED BY EVIDENCE THAT THE STRIKERS
INTENDED TO PREVENT SHIPMENTS IN INTERSTATE COMMERCE IN THE SENSE THAT
THEY MUST BE TAKEN TO HAVE INTENDED THE NATURAL AND PROBABLE
CONSEQUENCES OF THEIR ACTS.  P. 485. 

4.  THE LIABILITY OF THE STRIKERS FOR DAMAGES UNDER THE SHERMAN ACT
TURNS NOT ON THE POWER OF CONGRESS TO REGULATE COMMERCE, BUT ON THE
EXTENT TO WHICH CONGRESS HAS EXERTED ITS POWER IN THE ENACTMENT OF THE
LAW.  P. 488. 

5.  IN THE APPLICATION OF THE SHERMAN ACT, IT IS THE NATURE OF THE
RESTRAINT AND ITS EFFECT ON INTERSTATE COMMERCE AND NOT THE AMOUNT OF
THE COMMERCE WHICH ARE THE TESTS OF VIOLATION.  RESTRAINTS NOT WITHIN
THE ACT WHEN ACHIEVED BY PEACEFUL MEANS ARE NOT BROUGHT WITHIN IT
MERELY BECAUSE WITHOUT OTHER DIFFERENCES THEY ARE ATTAINED BY
VIOLENCE.  P. 485. 

6.  LABOR ORGANIZATIONS AND THEIR ACTIVITIES ARE NOT WHOLLY EXCLUDED
FROM THE OPERATION OF THE SHERMAN ACT.  P. 487. 

7.  THE SHERMAN ACT DOES NOT CONDEMN ALL COMBINATIONS AND
CONSPIRACIES WHICH INTERRUPT INTERSTATE TRANSPORTATION.  P. 486. 

8.  THE ACT IS TO BE INTERPRETED IN THE LIGHT OF ITS LEGISLATIVE
HISTORY AND OF THE PARTICULAR EVILS AT WHICH IT WAS AIMED.  P. 489. 

9.  THE END SOUGHT BY THE ACT WAS PREVENTION OF RESTRAINTS TO FREE
COMPETITION IN BUSINESS AND COMMERCIAL TRANSACTIONS WHICH TEND TO
RESTRICT PRODUCTION, RAISE PRICES OR OTHERWISE CONTROL THE MARKET TO
THE DETRIMENT OF PURCHASERS OR CONSUMERS OF GOODS AND SERVICES, ALL OF
WHICH HAD COME TO BE REGARDED AS A SPECIAL FORM OF PUBLIC INJURY.  P.
493. 

10.  THE PHRASE "RESTRAINT OF TRADE" HAD A WELL-UNDERSTOOD MEANING AT
COMMON LAW.  THE WORDS "OR COMMERCE AMONG THE SEVERAL STATES" WERE
ADDED TO RELATE THE PROHIBITED RESTRAINT OF TRADE TO INTERSTATE
COMMERCE FOR CONSTITUTIONAL PURPOSES, SO THAT CONGRESS THROUGH ITS
COMMERCE POWER, MIGHT SUPPRESS AND PENALIZE RESTRAINTS ON THE
COMPETITIVE SYSTEM WHICH INVOLVED OR AFFECTED INTERSTATE COMMERCE.  IT
WAS IN THIS SENSE OF PREVENTING RESTRAINTS ON COMMERCIAL COMPETITION
THAT CONGRESS EXERCISED ALL THE POWER IT POSSESSED.  P. 494. 

11.  THE CONTRACTS AND COMBINATIONS IN RESTRAINT OF TRADE MADE
ILLEGAL BY THE COMMON LAW WERE CONTRACTS FOR THE RESTRICTION OR
SUPPRESSION OF COMPETITION IN THE MARKET, AGREEMENTS TO FIX PRICES,
DIVIDE MARKETING TERRITORIES, APPORTION CUSTOMERS, RESTRICT PRODUCTION
AND THE LIKE PRACTICES, WHICH TEND TO RAISE PRICES OR OTHERWISE TAKE
FROM BUYERS OR CONSUMERS THE ADVANTAGES WHICH ACCRUE TO THEM FROM FREE
COMPETITION IN THE MARKET.  P. 497. 

12.  THE SHERMAN LAW TOOK OVER THE COMMON LAW CONCEPT OF ILLEGAL
RESTRAINTS BY CONDEMNING THEM WHEREVER THEY OCCUR IN OR AFFECT COMMERCE
BETWEEN THE STATES.  IT EXTENDED ITS CONDEMNATION TO RESTRAINTS
EFFECTED BY ANY COMBINATION IN THE FORM OF TRUST OR OTHERWISE, OR
CONSPIRACY, AS WELL AS BY CONTRACT OR AGREEMENT, HAVING THOSE EFFECTS
ON THE COMPETITIVE SYSTEM AND ON PURCHASERS AND CONSUMERS OF GOODS OR
SERVICES WHICH WERE CHARACTERISTIC OF RESTRAINTS DEEMED ILLEGAL AT
COMMON LAW, AND IT GAVE BOTH PRIVATE AND PUBLIC REMEDIES FOR THE
INJURIES FLOWING FROM SUCH RESTRAINTS.  P. 497. 

13.  RESTRAINT ON COMPETITION OR ON THE COURSE OF TRADE IN ARTICLES
MOVING IN INTERSTATE COMMERCE DOES NOT VIOLATE THE ACT, UNLESS THE
RESTRAINT IS SHOWN TO HAVE, OR IS INTENDED TO HAVE, AN EFFECT UPON
PRICES IN THE MARKET OR OTHERWISE TO DEPRIVE PURCHASERS OR CONSUMERS OF
THE ADVANTAGES WHICH THEY DERIVE FROM FREE COMPETITION.  P. 500. 

14.  A COMBINATION OF EMPLOYEES NECESSARILY RESTRAINING COMPETITION
AMONG THEMSELVES IN THE SALE OF THEIR SERVICES TO THEIR EMPLOYER WAS
NOT CONSIDERED AN ILLEGAL RESTRAINT OF TRADE AT COMMON LAW WHEN THE
SHERMAN ACT WAS ADOPTED, EITHER BECAUSE IT WAS NOT THOUGHT TO BE
UNREASONABLE OR BECAUSE IT WAS NOT DEEMED A "RESTRAINT OF TRADE."  P.
501. 

15.  SINCE THE ENACTMENT OF THE DECLARATION IN SEC. 6 OF THE CLAYTON
ACT IT WOULD SEEM PLAIN THAT RESTRAINTS ON THE SALE OF THE EMPLOYEE'S
SERVICES TO THE EMPLOYER ARE NOT IN THEMSELVES COMBINATIONS OR
CONSPIRACIES IN RESTRAINT OF TRADE OR COMMERCE UNDER THE SHERMAN ACT. 
P. 502. 

16. THE MERE FACT THAT STRIKES OR AGREEMENTS NOT TO WORK, ENTERED
INTO BY LABORERS TO COMPEL EMPLOYERS TO YIELD TO THEIR DEMANDS, MAY
RESTRICT THE POWER OF SUCH EMPLOYERS TO COMPETE IN THE MARKET WITH
THOSE NOT SUBJECT TO SUCH DEMANDS DOES NOT BRING THE AGREEMENTS WITHIN
THE CONDEMNATION OF THE SHERMAN ACT.  P. 503. 

17.  THIS COURT HAS HELD THE SHERMAN ACT INAPPLICABLE IN CASES LIKE
THE PRESENT IN WHICH LOCAL STRIKES, ALTHOUGH CONDUCTED BY MEANS ILLEGAL
UNDER LOCAL LAW, IN A PRODUCTION INDUSTRY, PREVENTED INTERSTATE
SHIPMENT OF SUBSTANTIAL AMOUNTS OF THE PRODUCT BUT IN WHICH IT WAS NOT
SHOWN THAT THE RESTRICTIONS ON SHIPMENTS HAD OPERATED TO RESTRAIN OR
WERE INTENDED TO RESTRAIN COMMERCIAL COMPETITION IN SOME SUBSTANTIAL
WAY.  P. 508. 

18.  THE SHERMAN ACT WAS NOT ENACTED TO POLICE INTERSTATE
TRANSPORTATION, OR TO AFFORD A REMEDY FOR WRONGS WHICH ARE ACTIONABLE
UNDER STATE LAW AND RESULT FROM COMBINATIONS AND CONSPIRACIES WHICH
FALL SHORT, BOTH IN THEIR PURPOSE AND EFFECT, OF ANY FORM OF MARKET
CONTROL OF A COMMODITY.  P. 512. 

19.  THE MAINTENANCE IN OUR FEDERAL SYSTEM OF A PROPER DISTRIBUTION
BETWEEN STATE AND NATIONAL GOVERNMENTS OF POLICE AUTHORITY AND OF
REMEDIES PRIVATE AND PUBLIC FOR PUBLIC WRONGS IS OF FARREACHING
IMPORTANCE.  AN INTENTION TO DISTURB THE BALANCE IS NOT LIGHTLY TO BE
IMPUTED TO CONGRESS.  P. 513. 

APEX HOSIERY CO. V. LEADER ET AL.* 

*WILLIAM LEADER AND AMERICAN FEDERATION OF FULL FASHIONED HOSIERY
WORKERS, PHILADELPHIA, BRANCH NO. 1, LOCAL NO. 706, RESPONDENTS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 309 U.S. 644, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
TRIPLE-DAMAGES RECOVERED IN AN ACTION UNDER THE SHERMAN ANTI-TRUST
ACT. 

THE RIGHTS OF LABOR WILL IN NO WAY BE IMPAIRED OR DESTROYED BY A
DECISION THAT THE SHERMAN ACT WAS VIOLATED IN THIS CASE.  CLAYTON ACT,
SECS. 6, 20; LABOR BOARD V. FANSTEEL METALLURGICAL CORP., 306 U.S. 240,
253. 

THERE ARE NO WORDS IN THE SHERMAN ACT LIMITING THE FIELD OR SCOPE OF
INTERSTATE COMMERCE TO WHICH IT IS MEANT TO APPLY.  ITS LANGUAGE IS AS
BROAD AS THE COMMERCE CLAUSE. 

DESPITE THE FACT THAT, DURING THE FIFTY YEARS SINCE THE SHERMAN ACT
WAS ENACTED, IT HAS CONSTANTLY BEEN CONTENDED THAT LABOR UNIONS ARE NOT
SUBJECT TO ITS PROVISIONS, THE ACT HAS NEVER BEEN SO LIMITED IN ITS
INTERPRETATION.  IT HAS LONG BEEN FIRMLY ESTABLISHED BY THE DECISIONS
OF THIS COURT WITHOUT A SINGLE DISSENT, THAT LABOR ORGANIZATIONS ARE
SUBJECT TO THE ACT, WHEN, PURSUANT TO A CONSPIRACY, THEY ENGAGE IN
UNLAWFUL ACTIVITIES WHICH RESTRAIN OR OBSTRUCT THE FREE FLOW OF
INTERSTATE COMMERCE.  LOEWE V. LAWLOR, 208 U.S. 274; GOMPERS V. BUCKS
STOVE & RANGE CO., 221 U.S. 418; LAWLOR V. LOEWE, 235 U.S. 522; DUPLEX
PRINTING PRESS CO. V. DEERING, 254 U.S. 443; AMERICAN STEEL FOUNDRIES
V. TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S. 184; CORONADO COAL CO. V.
UNITED MINE WORKERS, 268 U.S. 295; UNITED STATES V. BRIMS, 272 U.S.
549; BEDFORD CUT STONE CO. V. JOURNEYMEN STONE CUTTERS' ASSN., 274 U.S.
37; LOCAL 167 V. UNITED STATES, 291 U.S. 293. 

THE SHERMAN ACT IS VIOLATED WHEN IT IS SHOWN THAT A COMBINATION OR
CONSPIRACY EXISTED WHICH RESULTED IN A RESTRAINT OF COMMERCE. 

IN CONSTRUING THE ACT THIS COURT HAS HELD THAT THERE IS A RESTRAINT
OF COMMERCE IN VIOLATION OF THE ACT:  WHEN THE CONSPIRACY AFFECTS
COMMERCE, BEDFORD CUT STONE CO. V. JOURNEYMEN STONE CUTTERS' ASSN., 274
U.S. 37; DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443; LOEWE V.
LAWLOR, 208 U.S. 274; LABOR BOARD V. JONES & LAUGHLIN, 301 U.S. 1; WHEN
THE CONSPIRATORS INTENDED TO RESTRAIN COMMERCE, EVEN IF ORDINARILY THE
CONSPIRATORS' ACTS AFFECTED COMMERCE ONLY INDIRECTLY, CORONADO COAL CO.
V. UNITED MINE WORKERS, 268 U.S. 295; SCHECHTER POULTRY CORP. V. UNITED
STATES, 295 U.S. 495, 547. 

WHEN RESPONDENTS COMPLETELY STOPPED PETITIONER'S MANUFACTURING AND
SHIPPING OPERATIONS, COMMERCE WAS DIRECTLY AFFECTED AND RESTRAINED. 

THE STOPPAGE OF OPERATIONS OF A PLANT "IN THE FLOW OF COMMERCE"
DIRECTLY AFFECTS, BURDENS AND RESTRAINS COMMERCE.  LABOR BOARD V. JONES
& LAUGHLIN, 301 U.S. 1, 41; LABOR BOARD V. FRIEDMAN-HARRY MARKS
CLOTHING CO., 301 U.S. 58. 

BOTH CONGRESS, IN ENACTING THE NATIONAL LABOR RELATIONS ACT, AND THIS
COURT, IN SUSTAINING IT, HAVE RECOGNIZED THAT UNDER OUR EXISTING
ECONOMIC STRUCTURE THE STOPPAGE OF MANUFACTURING AND SHIPPING
OPERATIONS IN A SINGLE PLANT "IN THE FLOW OF COMMERCE" DIRECTLY BURDENS
AND RESTRAINS COMMERCE. 

THE DECISIONS OF THIS COURT IN THE JONES & LAUGHLIN AND FRIEDMAN
HARRY MARKS CASES DID NOT TURN UPON NOR EVEN INVOLVE THE SCOPE OF THE
WORD "AFFECT" IN THE LABOR RELATIONS ACT.  IN THOSE CASES, THIS COURT
FOUND, AS HAD CONGRESS IN THE PREAMBLE TO THE LABOR RELATIONS ACT, THAT
INDUSTRIAL STRIFE CAUSED BY UNFAIR LABOR PRACTICES IN A MANUFACTURING
PLANT RESULTS IN THE STOPPAGE OF ITS OPERATIONS.  THE ISSUE THEN WAS
WHETHER THIS STOPPAGE OF OPERATIONS HAD A DIRECT EFFECT UPON COMMERCE,
FOR UNLESS THE EFFECT WAS DIRECT, CONGRESS WOULD NOT HAVE THE POWER TO
PROHIBIT LOCAL PRACTICES RESULTING IN SUCH A STOPPAGE.  WHEN THIS COURT
DECIDED THAT ISSUE BY HOLDING THAT SUCH A STOPPAGE DID HAVE A DIRECT
EFFECT UPON COMMERCE, IT ANNOUNCED A LEGAL PRINCIPLE IN NO WAY CONFINED
TO NOR DEPENDENT ON THE USE OF THE WORD "AFFECT" IN THE LABOR RELATIONS
ACT, BUT ONE WHICH WAS EQUALLY APPLICABLE TO THE PRESENT CASE OR TO ANY
CASE WHERE THAT IS THE ISSUE TO BE DECIDED. 

THE QUESTION IN THOSE CASES, IT IS SAID, WAS THE CONSTITUTIONALITY OF
THE LABOR RELATIONS ACT, WHEREAS THE QUESTION IN THE PRESENT CASE IS
THE APPLICABILITY OF THE SHERMAN ACT.  WHILE THE ULTIMATE QUESTION FOR
DECISION IN EACH CASE IS DIFFERENT, THE ISSUE UPON WHICH THE ANSWER TO
THAT QUESTION DEPENDS IS EXACTLY THE SAME, NAMELY, WHETHER THE EFFECT
UPON COMMERCE OF A STOPPAGE OF OPERATIONS IS DIRECT OR INDIRECT. 
INDEED, IN THE JONES & LAUGHLIN CASE, P. 38, THIS COURT POINTED OUT
THAT THE POWER OF CONGRESS TO PASS THE LABOR RELATIONS ACT WAS TO BE
DETERMINED BY THE SAME TEST WHICH THIS COURT APPLIES IN DETERMINING
WHETHER THERE IS A RESTRAINT OF COMMERCE IN VIOLATION OF THE SHERMAN
ACT, NAMELY, WHETHER THE CONDUCT INVOLVED DIRECTLY AFFECTS COMMERCE. 
SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495, 546. 

THEREFORE, THE HOLDING IN THE JONES & LAUGHLIN AND FRIEDMAN-HARRY
MARKS CASES THAT THE STOPPAGE OF OPERATIONS IN A SINGLE PLANT HAS A
DIRECT EFFECT UPON COMMERCE IS CONCLUSIVE OF THAT SAME ISSUE IN THE
CASE AT BAR. 

EVEN IF IT BE SAID THAT THE STOPPAGE OF PETITIONER'S MANUFACTURING
OPERATIONS HAD BUT AN INDIRECT EFFECT ON COMMERCE, NEVERTHELESS, WHEN
RESPONDENTS WRONGFULLY PREVENTED THE INTERSTATE SHIPMENTS OF THE
FINISHED MERCHANDISE APEX HAD ON HAND AGAINST ORDERS, THEY THEREBY
DIRECTLY RESTRAINED INTERSTATE COMMERCE.  CARTER V. CARTER COAL CO.,
298 U.S. 238, 303; UNITED LEATHER WORKERS V. HERKERT, 265 U.S. 457,
463; BEDFORD CUT STONE CO. V. JOURNEYMEN STONE CUTTERS' ASSN., 274 U.S.
37, 47; LOEWE V. LAWLOR, 208 U.S. 274; DUPLEX V. DEERING, 254 U.S.
443. 

THE EVIDENCE CLEARLY SHOWS AND THE JURY FOUND THAT RESPONDENTS
INTENDED TO RESTRAIN COMMERCE. 

THE FACT THAT RESPONDENTS CARRIED OUT THEIR CONSPIRACY THROUGH THE
MEDIUM OF A SIT-DOWN STRIKE AND WITH THE STATED PURPOSE OF NOT
SURRENDERING POSSESSION OF PETITIONER'S PLANT UNTIL THEIR DEMANDS WERE
GRANTED IS COMPLETE PROOF OF THEIR INTENT TO RESTRAIN COMMERCE.  SUCH A
CONSPIRACY, BY ITS VERY NATURE, CONTEMPLATED THE COMPLETE THROTTLING OF
PETITIONER'S INTERSTATE COMMERCE. 

PROOF OF AN INTENT TO RESTRAIN COMMERCE HAVING BEEN SHOWN, IT IS
IMMATERIAL WHETHER RESPONDENTS' CONSPIRACY IS SAID TO HAVE DIRECTLY OR
INDIRECTLY RESTRAINED COMMERCE - IN EITHER CASE THERE IS A VIOLATION OF
THE SHERMAN ACT.  CORONADO COAL CO. V. UNITED MINE WORKERS, 268 U.S.
295, 310. 

EVEN IN THE ABSENCE OF THE FINDING BY THE JURY, RESPONDENTS' INTENT
TO RESTRAIN COMMERCE WILL BE PRESUMED AS A MATTER OF LAW. 

THIS COURT HAS FREQUENTLY DECLARED, IN SHERMAN ACT CASES, THAT THE
CONSPIRATORS ARE PRESUMED TO HAVE INTENDED THE NECESSARY CONSEQUENCES
OF THEIR ACTS AND CAN NOT BE HEARD TO SAY THE CONTRARY.  UNITED STATES
V. PATTEN, 226 U.S. 525, 543; LABOR BOARD V. JONES & LAUGHLIN, SUPRA,
P. 40. 

THE "INTENT," IN THE SENSE OF "PURPOSE" OR "ULTIMATE OBJECT," OF THE
LABOR UNION, INVOLVED IN EVERY SHERMAN ACT CASE HERETOFORE DECIDED BY
THIS COURT, HAS MERELY BEEN TO UNIONIZE THE PARTICULAR PLANT INVOLVED
OR TO OBTAIN SOME OTHER UNION OBJECTIVE, RATHER THAN TO RESTRAIN
COMMERCE.  NEVERTHELESS THIS COURT HAS SQUARELY HELD THAT SUCH AN
ULTIMATE OBJECT CANNOT JUSTIFY A RESTRAINT OF COMMERCE IN VIOLATION OF
THE SHERMAN ACT.  BEDFORD CUT STONE CO. V. JOURNEYMEN STONE CUTTERS'
ASSN., 274 U.S. 37, 47; INDUSTRIAL ASSOCIATION OF SAN FRANCISCO V.
UNITED STATES, 268 U.S. 64, 77; DUPLEX PRINTING PRESS CO. V. DEERING,
254 U.S. 443, 468. 

THE COURT BELOW ERRED IN HOLDING THAT THE SHERMAN ACT WAS NOT
VIOLATED BECAUSE A LARGE PROPORTION OF THE NATIONAL VOLUME OF COMMERCE
IN HOSIERY WAS NOT RESTRAINED.  SUCH A TEST IS IN COMPLETE CONFLICT
WITH THE DECISIONS OF THIS COURT AND OTHER CIRCUIT COURTS OF APPEALS. 

IN SO HOLDING, THE COURT PURPORTED TO APPLY THE SO-CALLED "RULE OF
REASON" LAID DOWN IN STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1. 
SEE UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 178. 

THAT RULE HAS NEVER BEEN APPLIED BY THIS COURT IN ANY CASE INVOLVING
THE UNLAWFUL ACTIVITIES OF A LABOR UNION.  THE REASON IS CLEAR.  IN
BUSINESS COMBINATION CASES, THE ACTIVITIES ENGAGED IN ARE LAWFUL AND
PROPER ACTIVITIES AND ONLY BECAME VIOLATIVE OF THE SHERMAN ACT WHEN
THEY UNREASONABLY CONTROL OR RESTRAIN COMMERCE.  BECAUSE THEY ARE
OTHERWISE LAWFUL ACTIVITIES, THE "RULE OF REASON" FURNISHES A
"YARDSTICK" FOR DETERMINING WHEN THESE LAWFUL ACTIVITIES HAVE REACHED A
POINT WHERE THEY RESULT IN AN UNLAWFUL RESTRAINT OF COMMERCE. 

WHERE, HOWEVER, COMMERCE IS DIRECTLY RESTRAINED BY ACTS WHICH IN
THEMSELVES ARE FLAGRANTLY UNLAWFUL, AS IN THE CASE AT BAR, SUCH A
RESTRAINT CAN NEVER BE CONSIDERED "REASONABLE" AND THEREFORE NOT IN
VIOLATION OF THE SHERMAN ACT, SIMPLY BECAUSE THE VOLUME OF COMMERCE
RESTRAINED IS BUT A SMALL PROPORTION OF THE NATIONAL VOLUME.  CF.
SECOND CORONADO COAL CASE, 268 U.S. 295; LAWLOR V. LOEWE, 235 U.S. 522;
DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443; LABOR BOARD V.
FAINBLATT, 306 U.S. 601, 606; STEERS V. UNITED STATES, 192 F. 1;
O'BRIEN V. UNITED STATES, 290 F. 185; PATTERSON V. UNITED STATES, 222
F. 599. 

THE SHERMAN ANTI-TRUST ACT DOES NOT APPLY TO LABOR UNIONS. 

THE TERMS "CONTRACT IN RESTRAINT OF TRADE" AND "COMBINATION OR
CONSPIRACY IN RESTRAINT OF TRADE" MUST BE GIVEN THEIR COMMON LAW
MEANING, OTHERWISE THE ENTIRE SHERMAN ACT IS UNCONSTITUTIONAL AND
VOID. 

AT COMMON LAW THE TERMS "CONTRACT IN RESTRAINT OF TRADE" AND
"COMBINATIONS OR CONSPIRACIES IN RESTRAINT OF TRADE" DID NOT APPLY TO
LABOR UNIONS IN THEIR RELATION WITH EMPLOYERS. 

THE CONGRESSIONAL DEBATES ESTABLISH THE INTENT TO EXCLUDE LABOR
UNIONS FROM THE PURVIEW OF THE ACT. 

LABOR UNIONS IN THEIR RELATIONS WITH EMPLOYERS WERE NOT WITHIN THAT
FIELD OF COMMON LAW WHICH DEALT WITH COMBINATIONS IN RESTRAINT OF
TRADE. 

THE COURT WAS IN ERROR IN APPLYING THE ACT TO A LABOR UNION IN LOEWE
V. LAWLOR, 208 U.S. 274. 

THE FOREGOING ARGUMENT IS INDEPENDENT OF ANY CONSIDERATION OF SEC. 6
OF THE CLAYTON ACT.  A CONSIDERATION OF THE HISTORY OF THE PERIOD
IMMEDIATELY PRECEDING AND ACCOMPANYING THE PASSAGE OF THE CLAYTON ACT
AND OF THE MISCHIEF TO BE REMEDIED, AS WELL AS THE GENERAL TREND OF
DEBATE ON SEC. 6 OF THE CLAYTON ACT IN THE CONGRESS, SANCTIONS THE
CONCLUSION THAT CONGRESS MEANT TO UNDO THE DECISION OF THE COURT IN
LOEWE V. LAWLOR, SUPRA.  ALTHOUGH THE COURT ADHERED TO THE DOCTRINE OF
LOEWE V. LAWLOR IN DUPLEX PRINTING CO. V. DEERING, 254 U.S. 443, AND IN
BEDFORD CUT STONE CO. V. JOURNEYMEN STONECUTTERS ASSOCIATION, 274 U.S.
37, THE COURT SHOULD NEVERTHELESS OVERRULE A CONSTRUCTION OF THE
SHERMAN ACT WHICH MAKES THAT STATUTE APPLICABLE TO LABOR UNIONS WITH
RESPECT TO THEIR RELATIONS TO EMPLOYERS. 

TO OBVIATE THE JUDICIAL CONSTRUCTION OF THE SHERMAN ACT IN LOEWE V.
LAWLOR, SUPRA, CONGRESS ENACTED SEC. 6 AND SEC. 20 OF THE CLAYTON ACT. 

IN EVERY CASE INVOLVING THE SHERMAN ACT, THERE ARE TWO PROBLEMS
INVOLVED, ONE OF JURISDICTION AND THE OTHER OF SUBSTANCE.  THE FAILURE
TO DIFFERENTIATE THESE TWO PROBLEMS DISTINGUISHES MOST OF THE
SIGNIFICANT LABOR CASES DECIDED BY THE COURT. 

EVEN IF THE SHERMAN ACT IS APPLICABLE TO LABOR UNIONS, AND THEIR
ACTIVITIES, THAT ACT HAS NOT BEEN VIOLATED BY THE RESPONDENTS, BECAUSE
THE LOCAL STRIKE ACTIVITIES WERE NOT PART OF A CONSPIRACY DIRECTLY
AIMED AT INTERSTATE COMMERCE NOR VITALIZED BY AN INTENT TO MONOPOLIZE
THE SUPPLY OF THE ARTICLE ENTERING AND MOVING IN INTERSTATE COMMERCE OR
TO FIX THE PRICE OF IT IN INTERSTATE MARKETS. 

LOCAL ACTIVITIES OF EMPLOYEES ON STRIKE ARE NOT WITHIN THE REACH OF
THE FEDERAL POWER. 

THE CASE IS SQUARELY WITHIN FIRST CORONADO COAL CASE, 259 U.S. 344;
UNITED LEATHER WORKERS V. HERKERT & MEISEL, 265 U.S. 457; AND LEVERING
& GARRIGUES V. MORRIN, 289 U.S. 103; LABOR BOARD V. JONES & LAUGHLIN,
301 U.S. 1; SECOND CORONADO COAL CASE, 268 U.S. 295. 

IN THE CASE AT BAR THE REQUISITE INTENT WAS NEITHER ALLEGED NOR
PROVED.  THERE WAS NOTHING MORE THAN CONCERTED ACTION TO UNIONIZE THE
MILL BY MEANS OF A SIT-DOWN STRIKE WITH THE INTENT AND PURPOSE OF
PREVENTING THE PETITIONER FROM CARRYING ON ITS BUSINESS. 

THE JURY DID NOT AND INDEED COULD NOT FIND THE REQUISITE INTENT.  THE
JURY FOUND AN INTENT TO CONDUCT A SIT-DOWN STRIKE.  FIRST CORONADO COAL
CASE, SUPRA, P. 411; INDUSTRIAL ASSOCIATION OF SAN FRANCISCO V. UNITED
STATES, 268 U.S. 64. 

THE DAMAGES WHICH THE PETITIONER SEEKS TO RECOVER IN THIS CASE ARE
SUCH AS RESULTED FROM A TRESPASS UNDER THE COMMON LAW, AND TO RECOVER
THEM THE PETITIONER MAY BRING AN ACTION IN THE STATE COURTS.  WILDER
MANUFACTURING CO. V. CORN PRODUCTS CO., 236 U.S. 165; NASH V. UNITED
STATES, 229 U.S. 373. 

THE LABOR RELATIONS ACT WAS FORMULATED TO COMPLEMENT THE ANTI-TRUST
ACT.  IN VIEW OF THIS, HOW CAN IT BE SAID THAT THE SHERMAN ACT, THOUGH
IT IS UNABLE TO FULFILL ITS FUNDAMENTAL PURPOSE, HAS VITALITY AGAINST
LABOR ORGANIZATIONS, WHICH CONGRESS BELIEVED WOULD BE ABLE TO ACHIEVE
THAT SAME PURPOSE THROUGH THE PROCESS OF COLLECTIVE BARGAINING? 
BARGAINING POWER MAY VERY WELL DEPEND UPON THE STRIKE AND THE BOYCOTT. 
HOW CAN IT BE SAID THAT EMPLOYEES MAY ORGANIZE AND FORM UNIONS FOR THE
PURPOSE OF BARGAINING COLLECTIVELY WITH THEIR EMPLOYER, BUT THAT, IF
THEY ENGAGE IN A STRIKE, WHICH, TO THE DEGREE THAT IT IS SUCCESSFUL,
NECESSARILY STOPS PRODUCTION, THEY COME WITHIN THE DOMAIN OF THE
SHERMAN ACT? 

THE PRINCIPLE OF COLLECTIVE BARGAINING REQUIRES THAT THE ORGANIZATION
EXTEND ITS INFLUENCE THROUGHOUT THE ENTIRE INDUSTRY.  AMERICAN STEEL
FOUNDRIES V. TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S. 184. 

IT IS CLEAR THAT THE DOCTRINE OF THE SECOND CORONADO CASE HAS BEEN
OVERCOME BY THE POLICY UNDERLYING THE WAGNER ACT. 

"NOTHING IN THIS ACT SHALL BE CONSTRUED SO AS TO INTERFERE WITH OR
IMPEDE OR DIMINISH IN ANY WAY THE RIGHT TO STRIKE." 

THE ACT AND THE DECISIONS OF THIS COURT UPHOLDING ITS
CONSTITUTIONALITY HAVE NOT EXPANDED THE MEANING OF "COMMERCE" NOR
EXTENDED THE APPLICATION OF THE ANTI-TRUST ACT. 

THE CIRCUIT COURT OF APPEALS DID NOT ERR IN HOLDING THAT A
SUBSTANTIAL AMOUNT OF THE COMMODITY MUST BE INVOLVED IN A VIOLATION OF
THE ANTI-TRUST ACT. 

APPLICATION OF THE SHERMAN ACT DOES NOT DEPEND UPON THE ILLEGALITY OF
THE MEANS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A PENNSYLVANIA CORPORATION, IS ENGAGED IN THE
MANUFACTURE, AT ITS FACTORY IN PHILADELPHIA, OF HOSIERY, A SUBSTANTIAL
PART OF WHICH IS SHIPPED IN INTERSTATE COMMERCE.  IT BROUGHT THE
PRESENT SUIT IN THE FEDERAL DISTRICT COURT FOR EASTERN PENNSYLVANIA
AGAINST RESPONDENT FEDERATION, A LABOR ORGANIZATION, AND ITS OFFICERS,
TO RECOVER TREBLE THE AMOUNT OF DAMAGE INFLICTED ON IT BY RESPONDENTS
IN CONDUCTING A STRIKE AT PETITIONER'S FACTORY ALLEGED TO BE A
CONSPIRACY IN VIOLATION OF THE SHERMAN ANTI-TRUST ACT.  26 STAT. 209,
15 U.S.C. SEC. 1.  THE TRIAL TO A JURY RESULTED IN A VERDICT FOR
PETITIONER IN THE SUM OF $237,310, RESPONDENTS SAVING BY PROPER MOTIONS
AND EXCEPTIONS THE QUESTION WHETHER THE EVIDENCE WAS SUFFICIENT TO
ESTABLISH A VIOLATION OF THE SHERMAN ACT.  THE TRIAL JUDGE TREBLED THE
VERDICT TO $711,932.55, IN CONFORMITY TO THE PROVISION OF THE SHERMAN
ACT AS AMENDED BY SEC. 4 OF THE CLAYTON ACT, 1914, 38 STAT. 731, 15
U.S.C. SEC. 15, AND GAVE JUDGMENT ACCORDINGLY.  THE COURT OF APPEALS
FOR THE THIRD CIRCUIT REVERSED, 108 F.2D 71, ON THE GROUND THAT THE
INTERSTATE COMMERCE RESTRAINED OR AFFECTED BY RESPONDENTS' ACTS WAS
UNSUBSTANTIAL, THE TOTAL SHIPMENT OF MERCHANDISE FROM PETITIONER'S
FACTORY BEING LESS THAN THREE PER CENT. OF THE TOTAL VALUE OF THE
OUTPUT IN THE ENTIRE INDUSTRY OF THE COUNTRY, AND ON THE FURTHER GROUND
THAT THE EVIDENCE FAILED TO SHOW AN INTENT ON THE PART OF RESPONDENTS
TO RESTRAIN INTERSTATE COMMERCE.  WE GRANTED CERTIORARI, 309 U.S. 644,
THE QUESTIONS PRESENTED BEING OF IMPORTANCE IN THE ADMINISTRATION OF
THE SHERMAN ACT. 

THE FACTS ARE UNDISPUTED.  THERE WAS EVIDENCE FROM WHICH THE JURY
COULD HAVE FOUND AS FOLLOWS.  PETITIONER EMPLOYS AT ITS PHILADELPHIA
FACTORY ABOUT TWENTY-FIVE HUNDRED PERSONS IN THE MANUFACTURE OF
HOSIERY, AND MANUFACTURES ANNUALLY MERCHANDISE OF THE VALUE OF ABOUT
$5,000,000.  ITS PRINCIPAL RAW MATERIALS ARE SILK AND COTTON, WHICH ARE
SHIPPED TO IT FROM POINTS OUTSIDE THE STATE.  IT SHIPS INTERSTATE MORE
THAN 80 PER CENT. OF ITS FINISHED PRODUCT, AND IN THE LAST EIGHT MONTHS
OF 1937 IT SHIPPED IN ALL 274,791 DOZEN PAIRS OF STOCKINGS.  IN APRIL,
1937, PETITIONER WAS OPERATING A NON-UNION SHOP.  A DEMAND OF THE
RESPONDENT FEDERATION AT THAT TIME FOR A CLOSED SHOP AGREEMENT CAME TO
NOTHING.  ON MAY 4, 1937, WHEN ONLY EIGHT OF PETITIONER'S EMPLOYEES
WERE MEMBERS OF THE FEDERATION, IT ORDERED A STRIKE.  SHORTLY AFTER
MIDDAY ON MAY 6, 1937, WHEN PETITIONER'S FACTORY WAS SHUT DOWN, MEMBERS
OF THE UNION, EMPLOYED BY OTHER FACTORIES IN PHILADELPHIA WHO HAD
STOPPED WORK, GATHERED AT PETITIONER'S PLANT.  RESPONDENT LEADER,
PRESIDENT OF THE FEDERATION, THEN MADE A FURTHER DEMAND FOR A CLOSED
SHOP AGREEMENT.  WHEN THIS WAS REFUSED LEADER DECLARED A "SIT DOWN
STRIKE."  IMMEDIATELY, ACTS OF VIOLENCE AGAINST PETITIONER'S PLANT AND
THE EMPLOYEES IN CHARGE OF IT WERE COMMITTED BY THE ASSEMBLED MOB.  IT
FORCIBLY SEIZED THE PLANT, WHEREUPON, UNDER UNION LEADERSHIP, ITS
MEMBERS WERE ORGANIZED TO MAINTAIN THEMSELVES AS SIT-DOWN STRIKERS IN
POSSESSION OF THE PLANT, AND IT REMAINED IN POSSESSION UNTIL JUNE 23,
1937, WHEN THE STRIKERS WERE FORCIBLY EJECTED PURSUANT TO AN INJUNCTION
ORDERED BY THE COURT OF APPEALS FOR THE THIRD CIRCUIT IN APEX HOSIERY
CO. V. LEADER, 90 F.2D 155, 159; REVERSED AND DISMISSAL ORDERED AS MOOT
IN LEADER V. APEX HOSIERY CO., 302 U.S. 656. 

THE LOCKS ON ALL GATES AND ENTRANCES OF PETITIONER'S PLANT WERE
CHANGED; ONLY STRIKERS WERE GIVEN KEYS.  NO OTHERS WERE ALLOWED TO
LEAVE OR ENTER THE PLANT WITHOUT PERMISSION OF THE STRIKERS.  DURING
THE PERIOD OF THEIR OCCUPANCY, THE UNION SUPPLIED THEM WITH FOOD,
BLANKETS, COTS, MEDICAL CARE, AND PAID THEM STRIKE BENEFITS.  WHILE
OCCUPYING THE FACTORY, THE STRIKERS WILFULLY WRECKED MACHINERY OF GREAT
VALUE, AND DID EXTENSIVE DAMAGE TO OTHER PROPERTY AND EQUIPMENT OF THE
COMPANY.  ALL MANUFACTURING OPERATIONS BY PETITIONER CEASED ON MAY
6TH.  AS THE RESULT OF THE DESTRUCTION OF THE COMPANY'S MACHINERY AND
PLANT, IT DID NOT RESUME EVEN PARTIAL MANUFACTURING OPERATIONS UNTIL
AUGUST 19, 1937.  THE RECORD DISCLOSES A LAWLESS INVASION OF
PETITIONER'S PLANT AND DESTRUCTION OF ITS PROPERTY BY FORCE AND
VIOLENCE OF THE MOST BRUTAL AND WANTON CHARACTER, UNDER LEADERSHIP AND
DIRECTION OF RESPONDENTS, AND WITHOUT INTERFERENCE BY THE LOCAL
AUTHORITIES. 

FOR MORE THAN THREE MONTHS, BY REASON OF RESPONDENTS' ACTS,
MANUFACTURE WAS SUSPENDED AT PETITIONER'S PLANT AND THE FLOW OF
PETITIONER'S PRODUCT INTO INTERSTATE COMMERCE WAS STOPPED.  WHEN THE
PLANT WAS SEIZED, THERE WERE ON HAND 130,000 DOZEN PAIRS OF FINISHED
HOSIERY, OF A VALUE OF ABOUT $800,000, READY FOR SHIPMENT ON UNFILLED
ORDERS, 80 PER CENT. OF WHICH WERE TO BE SHIPPED TO POINTS OUTSIDE THE
STATE.  SHIPMENT WAS PREVENTED BY THE OCCUPATION OF THE FACTORY BY THE
STRIKERS.  THREE TIMES IN THE COURSE OF THE STRIKE RESPONDENTS REFUSED
REQUESTS MADE BY PETITIONER TO BE ALLOWED TO REMOVE THE MERCHANDISE FOR
THE PURPOSE OF SHIPMENT IN FILLING THE ORDERS. 

IN THE FORM OF TRUST OR OTHERWISE, OR CONSPIRACY, IN RESTRAINT OF TRADE
OR COMMERCE AMONG THE SEVERAL STATES, OR WITH FOREIGN NATIONS, IS
HEREBY DECLARED TO BE ILLEGAL."  ONLY A SINGLE QUESTION IS PRESENTED BY
THE RECORD FOR OUR DECISION, WHETHER THE EVIDENCE WHICH WE HAVE
DETAILED, WHOSE VERITY MUST BE TAKEN TO BE ESTABLISHED BY THE JURY'S
VERDICT, ESTABLISHES A RESTRAINT OF TRADE OR COMMERCE WHICH THE SHERMAN
ACT CONDEMNS. 

IT IS NOT DENIED, AND WE ASSUME FOR PRESENT PURPOSES, THAT
RESPONDENTS BY SUBSTITUTING THE PRIMITIVE METHOD OF TRIAL BY COMBAT,
FN1  FOR THE ORDINARY PROCESSES OF JUSTICE AND MORE CIVILIZED MEANS OF
DECIDING AN INDUSTRIAL DISPUTE, VIOLATED THE CIVIL AND PENAL LAWS OF
PENNSYLVANIA WHICH AUTHORIZE THE RECOVERY OF FULL COMPENSATION AND
IMPOSE CRIMINAL PENALTIES FOR THE WRONGS DONE.  BUT IN THIS SUIT, IN
WHICH NO DIVERSITY OF CITIZENSHIP OF THE PARTIES IS ALLEGED OR SHOWN,
THE FEDERAL COURTS ARE WITHOUT AUTHORITY TO ENFORCE STATE LAWS.  THEIR
ONLY JURISDICTION IS TO VINDICATE SUCH FEDERAL RIGHT AS CONGRESS HAS
CONFERRED ON PETITIONER BY THE SHERMAN ACT AND VIOLENCE, AS WILL APPEAR
HEREAFTER, HOWEVER REPREHENSIBLE, DOES NOT GIVE THE FEDERAL COURTS
JURISDICTION. 

AT THE OUTSET, AND BEFORE CONSIDERING THE MORE SUBSTANTIAL ISSUES
WHICH WE REGARD AS DECISIVE OF THIS CAUSE, IT IS DESIRABLE TO REMOVE
FROM THE FIELD OF CONTROVERSY CERTAIN QUESTIONS WHICH HAVE BEEN MUCH
ARGUED HERE AND BELOW, BUT WHICH WE THINK, IN THE CIRCUMSTANCES OF THE
PRESENT CASE, ARE IRRELEVANT TO DECISION.  WE FIND ABUNDANT SUPPORT FOR
PETITIONER'S CONTENTION THAT THE EFFECT OF THE SIT-DOWN STRIKE WAS TO
RESTRICT SUBSTANTIALLY THE INTERSTATE TRANSPORTATION OF ITS
MANUFACTURED PRODUCT, SO AS TO BRING THE ACTS OF RESPONDENTS BY WHICH
THE RESTRICTION WAS EFFECTED WITHIN THE REACH OF THE COMMERCE POWER IF
CONGRESS HAS SEEN FIT TO EXERCISE IT.  CESSATION OF PETITIONER'S
MANUFACTURING OPERATIONS, WHICH RESPONDENTS COMPELLED, INDUBITABLY
MEANT THE CESSATION OF SHIPMENT INTERSTATE.  THE EFFECT UPON THE
COMMERCE RESULTED NATURALLY AND INEVITABLY FROM THE CAUSE.  THE
OCCUPANCY OF PETITIONER'S FACTORY BY THE STRIKERS PREVENTED THE
SHIPMENT OF THE SUBSTANTIAL AMOUNT OF MERCHANDISE ON HAND WHEN THE
STRIKE WAS CALLED.  IN POINT OF THE IMMEDIACY OF THE EFFECT OF THE
STRIKERS' ACTS UPON THE INTERSTATE TRANSPORTATION INVOLVED AND OF ITS
VOLUME, THE CASE DOES NOT DIFFER FROM MANY OTHERS IN WHICH WE HAVE
SUSTAINED THE CONGRESSIONAL EXERCISE OF THE COMMERCE POWER.  THE
NATIONAL POWER TO REGULATE COMMERCE IS NOT RESTRICTED TO THAT WHICH IS
NATIONWIDE IN ITS SCOPE.  HERE THE STRIKERS' ACTIVITIES WERE AS CLOSELY
RELATED TO INTERSTATE COMMERCE AND AFFECTED IT AS SUBSTANTIALLY AS
NUMEROUS OTHER ACTIVITIES NOT IN THEMSELVES INTERSTATE COMMERCE WHICH
HAVE NEVERTHELESS BEEN HELD TO BE SUBJECT TO FEDERAL STATUTES ENACTED
IN THE EXERCISE OF THE COMMERCE POWER.  FN2  MORE RECENTLY, WHERE THE
STATUTE WAS BY ITS TERMS APPLICABLE AND THE QUESTION WAS OF
CONGRESSIONAL POWER, WE HAVE SUSTAINED THE APPLICATION OF THE WAGNER
ACT, 49 STAT. 449, 29 U.S.C. SECS. 151-166, REGULATING LABOR RELATIONS
"AFFECTING" INTERSTATE COMMERCE TO SITUATIONS NO MORE CLOSELY RELATED
TO THE COMMERCE THAN THESE, AND WHERE THE INTERSTATE COMMERCE AFFECTED
WAS NO GREATER IN VOLUME.  FN3  AND IN THE APPLICATION OF THE SHERMAN
ACT, AS WE HAVE RECENTLY HAD OCCASION TO POINT OUT, IT IS THE NATURE OF
THE RESTRAINT AND ITS EFFECT ON INTERSTATE COMMERCE AND NOT THE AMOUNT
OF THE COMMERCE WHICH ARE THE TESTS OF VIOLATION.  SEE UNITED STATES V.
SOCONY-VACUUM OIL CO., ANTE, P. 224, NOTE 59.  CF. LABOR BOARD V.
FAINBLATT, 306 U.S. 601, 606. 

WE THINK ALSO, AS PETITIONER CONTENDS, THAT THE JURY'S VERDICT MUST
BE TAKEN AS A FINDING SUPPORTED BY EVIDENCE THAT RESPONDENTS INTENDED
TO PREVENT PETITIONER'S SHIPMENTS IN INTERSTATE COMMERCE IN THE SENSE
THAT RESPONDENTS MUST BE TAKEN TO HAVE INTENDED THE NATURAL AND
PROBABLE CONSEQUENCES OF THEIR ACTS.  THE TRIAL COURT LEFT IT TO THE
JURY TO SAY WHETHER THE RESPONDENTS INTENDED TO RESTRAIN PETITIONER'S
INTERSTATE SHIPMENTS, AND CHARGED THAT IN A SUIT TO RECOVER DAMAGES FOR
VIOLATION OF THE SHERMAN ACT IT WAS NECESSARY FOR IT TO FIND AN INTENT
ON THE PART OF RESPONDENTS TO CAUSE THE PROHIBITED RESTRAINT OF
COMMERCE,  FN4  BUT THAT SUCH INTENT MIGHT BE INFERRED FROM THEIR ACTS
IN STOPPING PETITIONER'S MANUFACTURE OF A PRODUCT LARGELY AND REGULARLY
SHIPPED IN INTERSTATE COMMERCE.  CONCEDEDLY THE PURPOSE OF THE STRIKERS
AND THEIR PRINCIPAL OBJECTIVE WERE TO COMPEL PETITIONER TO YIELD TO
THEIR DEMANDS FOR A UNION SHOP, BUT IT IS A MATTER OF COMMON KNOWLEDGE
AND EXPERIENCE THAT THE STOPPAGE OF A LARGE MANUFACTURING PLANT, WHICH
THE STRIKERS DID INTEND, WHOSE PRODUCT IS DISTRIBUTED GENERALLY TO
CONSUMERS THROUGHOUT THE COUNTRY, WOULD PREVENT ITS SHIPMENTS IN
INTERSTATE COMMERCE.  WE MUST TAKE IT FROM THE JURY'S VERDICT THAT THIS
WAS KNOWN TO THE STRIKERS AS WELL AS TO OTHERS.  IN ADDITION THERE WAS
SPECIFIC TESTIMONY THAT THE STRIKERS REFUSED TO PERMIT THE WITHDRAWAL
OF THE FINISHED MERCHANDISE FROM PETITIONER'S FACTORY FOR SHIPMENT. 

BUT THE SHERMAN ACT ADMITTEDLY DOES NOT CONDEMN ALL COMBINATIONS AND
CONSPIRACIES WHICH INTERRUPT INTERSTATE TRANSPORTATION.  UNITED MINE
WORKERS V. CORONADO COAL CO., 259 U.S. 344(FIRST CORONADO CASE); UNITED
LEATHER WORKERS V. HERKERT CO. 265 U.S. 457(LEATHER WORKERS CASE).  IN
IN RE DEBS, 158 U.S. 564, 600, THIS COURT DECLINED TO CONSIDER WHETHER
THE STOPPAGE OF TRAINS ON AN INTERSTATE RAILROAD RESULTING FROM A
STRIKE, WAS A VIOLATION OF THE SHERMAN ACT - A QUESTION WHICH IT HAS
NOT SINCE BEEN CALLED ON TO DECIDE.  FN5  IT IS NOT SERIOUSLY CONTENDED
HERE THAT A CONSPIRACY TO DERAIL AND ROB AN INTERSTATE TRAIN, EVEN
THOUGH IT WERE LADEN WITH 100,000 DOZEN PAIRS OF STOCKINGS, NECESSARILY
WOULD INVOLVE A VIOLATION OF THE SHERMAN ACT.  THIS COURT HAS NEVER
APPLIED THE ACT TO LABORERS OR TO OTHERS AS A MEANS OF POLICING
INTERSTATE TRANSPORTATION, AND SO THE QUESTION TO WHICH WE MUST ADDRESS
OURSELVES IS WHETHER A CONSPIRACY OF STRIKERS IN A LABOR DISPUTE TO
STOP THE OPERATION OF THE EMPLOYER'S FACTORY IN ORDER TO ENFORCE THEIR
DEMANDS AGAINST THE EMPLOYER IS THE KIND OF RESTRAINT OF TRADE OR
COMMERCE AT WHICH THE ACT IS AIMED, EVEN THOUGH A NATURAL AND PROBABLE
CONSEQUENCE OF THEIR ACTS AND THE ONLY EFFECT ON TRADE OR COMMERCE WAS
TO PREVENT SUBSTANTIAL SHIPMENTS INTERSTATE BY THE EMPLOYER. 

A POINT STRONGLY URGED IN BEHALF OF RESPONDENTS IN BRIEF AND ARGUMENT
BEFORE US IS THAT CONGRESS INTENDED TO EXCLUDE LABOR ORGANIZATIONS AND
THEIR ACTIVITIES WHOLLY FROM THE OPERATION OF THE SHERMAN ACT.  TO THIS
THE SHORT ANSWER MUST BE MADE THAT FOR THE THIRTY-TWO YEARS WHICH HAVE
ELAPSED SINCE THE DECISION OF LOEWE V. LAWLOR, 208 U.S. 274, THIS
COURT, IN ITS EFFORTS TO DETERMINE THE TRUE MEANING AND APPLICATION OF
THE SHERMAN ACT HAS REPEATEDLY HELD THAT THE WORDS OF THE ACT, "EVERY
CONTRACT, COMBINATION  ...  OR CONSPIRACY IN RESTRAINT OF TRADE OR
COMMERCE" DO EMBRACE TO SOME EXTENT AND IN SOME CIRCUMSTANCES LABOR
UNIONS AND THEIR ACTIVITIES; FN6  AND THAT DURING THAT PERIOD CONGRESS,
ALTHOUGH OFTEN ASKED TO DO SO, HAS PASSED NO ACT PURPORTING TO EXCLUDE
LABOR UNIONS WHOLLY FROM THE OPERATION OF THE ACT.  FN7  ON THE
CONTRARY CONGRESS HAS REPEATEDLY ENACTED LAWS RESTRICTING OR PURPORTING
TO CURTAIL THE APPLICATION OF THE ACT TO LABOR ORGANIZATIONS AND THEIR
ACTIVITIES, THUS RECOGNIZING THAT TO SOME EXTENT NOT DEFINED THEY
REMAIN SUBJECT TO IT.  FN8 

WHETHER LABOR ORGANIZATIONS AND THEIR ACTIVITIES ARE WHOLLY EXCLUDED
FROM THE SHERMAN ACT IS A QUESTION OF STATUTORY CONSTRUCTION, NOT
CONSTITUTIONAL POWER.  FN9  THE LONG TIME FAILURE OF CONGRESS TO ALTER
THE ACT AFTER IT HAD BEEN JUDICIALLY CONSTRUED, AND THE ENACTMENT BY
CONGRESS OF LEGISLATION WHICH IMPLICITLY RECOGNIZES THE JUDICIAL
CONSTRUCTION AS EFFECTIVE, IS PERSUASIVE OF LEGISLATIVE RECOGNITION
THAT THE JUDICIAL CONSTRUCTION IS THE CORRECT ONE.  THIS IS THE MORE SO
WHERE, AS HERE, THE APPLICATION OF THE STATUTE TO LABOR UNIONS HAS
BROUGHT FORTH SHARPLY CONFLICTING VIEWS BOTH ON THE COURT AND IN
CONGRESS, AND WHERE AFTER THE MATTER HAS BEEN FULLY BROUGHT TO THE
ATTENTION OF THE PUBLIC AND THE CONGRESS, THE LATTER HAS NOT SEEN FIT
TO CHANGE THE STATUTE. 

WHILE WE MUST REGARD THE QUESTION WHETHER LABOR UNIONS ARE TO SOME
EXTENT AND IN SOME CIRCUMSTANCES SUBJECT TO THE ACT AS SETTLED IN THE
AFFIRMATIVE, IT IS EQUALLY PLAIN THAT THIS COURT HAS NEVER THOUGHT THE
ACT TO APPLY TO ALL LABOR UNION ACTIVITIES AFFECTING INTERSTATE
COMMERCE.  THE PROHIBITIONS OF THE SHERMAN ACT WERE NOT STATED IN TERMS
OF PRECISION OR OF CRYSTAL CLARITY AND THE ACT ITSELF DID NOT DEFINE
THEM.  IN CONSEQUENCE OF THE VAGUENESS OF ITS LANGUAGE, PERHAPS NOT
UNCALCULATED,  FN10  THE COURTS HAVE BEEN LEFT TO GIVE CONTENT TO THE
STATUTE, AND IN THE PERFORMANCE OF THAT FUNCTION IT IS APPROPRIATE THAT
COURTS SHOULD INTERPRET ITS WORD IN THE LIGHT OF ITS LEGISLATIVE
HISTORY AND OF THE PARTICULAR EVILS AT WHICH THE LEGISLATION WAS
AIMED.  CF. STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; NASH V.
UNITED STATES, 229 U.S. 373; APPALACHIAN COALS V. UNITED STATES, 288
U.S. 344, 359, 360. 

THE CRITICAL WORDS WHICH CIRCUMSCRIBE THE JUDICIAL PERFORMANCE OF
THIS FUNCTION SO FAR AS THE PRESENT CASE IS CONCERNED ARE "EVERY  ...
COMBINATION  ...  OR CONSPIRACY IN RESTRAINT OF TRADE OR COMMERCE." 
SINCE IN THE PRESENT CASE, AS WE HAVE SEEN, THE NATURAL AND PREDICTABLE
CONSEQUENCE OF THE STRIKE WAS THE RESTRAINT OF INTERSTATE
TRANSPORTATION THE PRECISE QUESTION WHICH WE ARE CALLED UPON TO DECIDE
IS WHETHER THAT RESTRAINT RESULTING FROM THE STRIKE MAINTAINED TO
ENFORCE UNION DEMANDS BY COMPELLING A SHUTDOWN OF PETITIONER'S FACTORY
IS THE KIND OF "RESTRAINT OF TRADE OR COMMERCE" WHICH THE ACT
CONDEMNS. 

IN CONSIDERING WHETHER UNION ACTIVITIES LIKE THE PRESENT MAY FAIRLY
BE DEEMED TO BE EMBRACED WITHIN THIS PHRASE, THREE CIRCUMSTANCES
RELATING TO THE HISTORY AND APPLICATION OF THE ACT WHICH ARE OF
STRIKING SIGNIFICANCE MUST FIRST BE TAKEN INTO ACCOUNT.  THE
LEGISLATIVE HISTORY OF THE SHERMAN ACT AS WELL AS THE DECISIONS OF THIS
COURT INTERPRETING IT, SHOW THAT IT WAS NOT AIMED AT POLICING
INTERSTATE TRANSPORTATION OR MOVEMENT OF GOODS AND PROPERTY.  THE
LEGISLATIVE HISTORY AND THE VOLUMINOUS LITERATURE WHICH WAS GENERATED
IN THE COURSE OF THE ENACTMENT AND DURING FIFTY YEARS OF LITIGATION OF
THE SHERMAN ACT GIVE NO HINT THAT SUCH WAS ITS PURPOSE.  FN11  THEY DO
NOT SUGGEST THAT, IN GENERAL, STATE LAWS OR LAW ENFORCEMENT MACHINERY
WERE INADEQUATE TO PREVENT LOCAL OBSTRUCTIONS OR INTERFERENCES WITH
INTERSTATE TRANSPORTATION, OR PRESENTED ANY PROBLEM REQUIRING THE
INTERPOSITION OF FEDERAL AUTHORITY.  FN12  IN 1890 WHEN THE SHERMAN ACT
WAS ADOPTED THERE WERE ONLY A FEW FEDERAL STATUTES IMPOSING PENALTIES
FOR OBSTRUCTING OR MISUSING INTERSTATE TRANSPORTATION.  FN13  WITH AN
EXPANDING COMMERCE, MANY OTHERS HAVE SINCE BEEN ENACTED SAFEGUARDING
TRANSPORTATION IN INTERSTATE COMMERCE AS THE NEED WAS SEEN, INCLUDING
STATUTES DECLARING CONSPIRACIES TO INTERFERE OR ACTUAL INTERFERENCE
WITH INTERSTATE COMMERCE BY VIOLENCE OR THREATS OF VIOLENCE TO BE
FELONIES.  FN14  IT WAS ANOTHER AND QUITE A DIFFERENT EVIL AT WHICH THE
SHERMAN ACT WAS AIMED.  IT WAS ENACTED IN THE ERA OF "TRUSTS" AND OF
"COMBINATIONS" OF BUSINESSES AND OF CAPITAL ORGANIZED AND DIRECTED TO
CONTROL OF THE MARKET BY SUPPRESSION OF COMPETITION IN THE MARKETING OF
GOODS AND SERVICES, THE MONOPOLISTIC TENDENCY OF WHICH HAD BECOME A
MATTER OF PUBLIC CONCERN.  THE END SOUGHT WAS THE PREVENTION OF
RESTRAINTS TO FREE COMPETITION IN BUSINESS AND COMMERCIAL TRANSACTIONS
WHICH TENDED TO RESTRICT PRODUCTION, RAISE PRICES OR OTHERWISE CONTROL
THE MARKET TO THE DETRIMENT OF PURCHASERS OR CONSUMERS OF GOODS AND
SERVICES, ALL OF WHICH HAD COME TO BE REGARDED AS A SPECIAL FORM OF
PUBLIC INJURY.  FN15 

FOR THAT REASON THE PHRASE "RESTRAINT OF TRADE" WHICH, AS WILL
PRESENTLY APPEAR, HAD A WELL-UNDERSTOOD MEANING AT COMMON LAW, WAS MADE
THE MEANS OF DEFINING THE ACTIVITIES PROHIBITED.  THE ADDITION OF THE
WORDS "OR COMMERCE AMONG THE SEVERAL STATES" WAS NOT AN ADDITIONAL KIND
OF RESTRAINT TO BE PROHIBITED BY THE SHERMAN ACT BUT WAS THE MEANS USED
TO RELATE THE PROHIBITED RESTRAINT OF TRADE TO INTERSTATE COMMERCE FOR
CONSTITUTIONAL PURPOSES, ATLANTIC CLEANERS & DYERS V. UNITED STATES,
286 U.S. 427, 434, SO THAT CONGRESS, THROUGH ITS COMMERCE POWER, MIGHT
SUPPRESS AND PENALIZE RESTRAINTS ON THE COMPETITIVE SYSTEM WHICH
INVOLVED OR AFFECTED INTERSTATE COMMERCE.  BECAUSE MANY FORMS OF
RESTRAINT UPON COMMERCIAL COMPETITION EXTENDED ACROSS STATE LINES SO AS
TO MAKE REGULATION BY STATE ACTION DIFFICULT OR IMPOSSIBLE, CONGRESS
ENACTED THE SHERMAN ACT, 21 CONG. REC. 2456.  IT WAS IN THIS SENSE OF
PREVENTING RESTRAINTS ON COMMERCIAL COMPETITION THAT CONGRESS EXERCISED
"ALL THE POWER IT POSSESSED."  ATLANTIC CLEANERS & DYERS V. UNITED
STATES, SUPRA, 435. 

A SECOND SIGNIFICANT CIRCUMSTANCE IS THAT THIS COURT HAS NEVER
APPLIED THE SHERMAN ACT IN ANY CASE, WHETHER OR NOT INVOLVING LABOR
ORGANIZATIONS OR ACTIVITIES, UNLESS THE COURT WAS OF OPINION THAT THERE
WAS SOME FORM OF RESTRAINT UPON COMMERCIAL COMPETITION IN THE MARKETING
OF GOODS OR SERVICES FN16  AND FINALLY THIS COURT HAS REFUSED TO APPLY
THE SHERMAN ACT IN CASES LIKE THE PRESENT IN WHICH LOCAL STRIKES
CONDUCTED BY ILLEGAL MEANS IN A PRODUCTION INDUSTRY PREVENTED
INTERSTATE SHIPMENT OF SUBSTANTIAL AMOUNTS OF THE PRODUCT BUT IN WHICH
IT WAS NOT SHOWN THAT THE RESTRICTIONS ON SHIPMENTS HAD OPERATED TO
RESTRAIN COMMERCIAL COMPETITION IN SOME SUBSTANTIAL WAY.  FIRST
CORONADO CASE, SUPRA; LEATHER WORKERS CASE, SUPRA.  LEVERING &
GARRIGUES CO. V. MORRIN, 289 U.S. 103. 

THE COMMON LAW DOCTRINES RELATING TO CONTRACTS AND COMBINATIONS IN
RESTRAINT OF TRADE WERE WELL UNDERSTOOD LONG BEFORE THE ENACTMENT OF
THE SHERMAN LAW.  FN17  THEY WERE CONTRACTS FOR THE RESTRICTION OR
SUPPRESSION OF COMPETITION IN THE MARKET, AGREEMENTS TO FIX PRICES,
DIVIDE MARKETING TERRITORIES, APPORTION CUSTOMERS, RESTRICT PRODUCTION
AND THE LIKE PRACTICES, WHICH TEND TO RAISE PRICES OR OTHERWISE TAKE
FROM BUYERS OR CONSUMERS THE ADVANTAGES WHICH ACCRUE TO THEM FROM FREE
COMPETITION IN THE MARKET.  SUCH CONTRACTS WERE DEEMED ILLEGAL AND WERE
UNENFORCIBLE AT COMMON LAW.  BUT THE RESULTING RESTRAINTS OF TRADE WERE
NOT PENALIZED AND GAVE RISE TO NO ACTIONABLE WRONG.  CERTAIN CLASSES OF
RESTRAINTS WERE NOT OUTLAWED WHEN DEEMED REASONABLE, USUALLY BECAUSE
THEY SERVED TO PRESERVE OR PROTECT LEGITIMATE INTERESTS, PREVIOUSLY
EXISTING, OF ONE OR MORE PARTIES TO THE CONTRACT.  FN18 

IN SEEKING MORE EFFECTIVE PROTECTION OF THE PUBLIC FROM THE GROWING
EVILS OF RESTRAINTS ON THE COMPETITIVE SYSTEM EFFECTED BY THE
CONCENTRATED COMMERCIAL POWER OF "TRUSTS" AND "COMBINATIONS" AT THE
CLOSE OF THE NINETEENTH CENTURY, THE LEGISLATORS FOUND READY AT THEIR
HAND THE COMMON LAW CONCEPT OF ILLEGAL RESTRAINTS OF TRADE OR
COMMERCE.  IN ENACTING THE SHERMAN LAW THEY TOOK OVER THAT CONCEPT BY
CONDEMNING SUCH RESTRAINTS WHEREVER THEY OCCUR IN OR AFFECT COMMERCE
BETWEEN THE STATES.  THEY EXTENDED THE CONDEMNATION OF THE STATUTE TO
RESTRAINTS EFFECTED BY ANY COMBINATION IN THE FORM OF TRUST OR
OTHERWISE, OR CONSPIRACY, AS WELL AS BY CONTRACT OR AGREEMENT, HAVING
THOSE EFFECTS ON THE COMPETITIVE SYSTEM AND ON PURCHASERS AND CONSUMERS
OF GOODS OR SERVICES WHICH WERE CHARACTERISTIC OF RESTRAINTS DEEMED
ILLEGAL AT COMMON LAW, AND THEY GAVE BOTH PRIVATE AND PUBLIC REMEDIES
FOR THE INJURIES FLOWING FROM SUCH RESTRAINTS. 

THAT SUCH IS THE SCOPE AND EFFECT OF THE SHERMAN ACT WAS FIRST
JUDICIALLY RECOGNIZED AND EXPOUNDED IN THE CLASSIC OPINION IN UNITED
STATES V. ADDYSTON PIPE & STEEL CO., 85 F. 271, AFFIRMED 175 U.S. 211,
WRITTEN BY JUDGE, LATER CHIEF JUSTICE, TAFT, AND CONCURRED IN BY
JUSTICE HARLAN AND JUDGE, LATER JUSTICE, LURTON, OF THIS COURT.  THIS
COURT HAS SINCE REPEATEDLY RECOGNIZED THAT THE RESTRAINTS AT WHICH THE
SHERMAN LAW IS AIMED, AND WHICH ARE DESCRIBED BY ITS TERMS, ARE ONLY
THOSE WHICH ARE COMPARABLE TO RESTRAINTS DEEMED ILLEGAL AT COMMON LAW,
ALTHOUGH ACCOMPLISHED BY MEANS OTHER THAN CONTRACT AND WHICH, FOR
CONSTITUTIONAL REASONS, ARE CONFINED TO TRANSACTIONS IN OR WHICH AFFECT
INTERSTATE COMMERCE.  FN19 

IN STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 54, 55, 58, DECIDED
IN 1911, THIS COURT, SPEAKING THROUGH CHIEF JUSTICE WHITE, POINTED OUT
THAT THE RESTRAINT OF TRADE CONTEMPLATED BY SEC. 1 OF THE ACT TOOK ITS
ORIGIN FROM THE COMMON LAW, AND THAT THE SHERMAN ACT WAS ADAPTED TO THE
PREVENTION, IN MODERN CONDITIONS, OF CONDUCT OR DEALING EFFECTING THE
WRONG, AT WHICH THE COMMON LAW DOCTRINE WAS AIMED.  THIS, IT WAS SAID,
IS "THE DREAD OF ENHANCEMENT OF PRICES AND OF OTHER WRONGS WHICH IT WAS
THOUGHT WOULD FLOW FROM THE UNDUE LIMITATION ON COMPETITIVE CONDITIONS
CAUSED BY CONTRACTS OR OTHER ACTS OF INDIVIDUALS OR CORPORATIONS,  ...
"  FN20  THE COURT DECLARED, PAGE 59, THAT "THE STATUTE WAS DRAWN IN
THE LIGHT OF THE EXISTING PRACTICAL CONCEPTION OF THE LAW OF RESTRAINT
OF TRADE," AND DREW THE CONCLUSION THAT THE RESTRAINTS WHICH WERE
CONDEMNED BY THE STATUTE ARE THOSE WHICH, FOLLOWING THE COMMON LAW
ANALOGY, ARE "UNREASONABLE OR UNDUE."  THIS VIEW WAS FOLLOWED AND MORE
EXPLICITLY STATED IN UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S.
106, 179, WHERE IT WAS SAID:  "  ...  IT WAS HELD IN THE STANDARD OIL
CASE THAT AS THE WORDS 'RESTRAINT OF TRADE' AT COMMON LAW AND IN THE
LAW OF THIS COUNTRY AT THE TIME OF THE ADOPTION OF THE ANTI-TRUST ACT
ONLY EMBRACED ACTS OR CONTRACTS OR AGREEMENTS OR COMBINATIONS WHICH
OPERATED TO THE PREJUDICE OF THE PUBLIC INTERESTS BY UNDULY RESTRICTING
COMPETITION OR UNDULY OBSTRUCTING THE DUE COURSE OF TRADE OR WHICH,
EITHER BECAUSE OF THEIR INHERENT NATURE OR EFFECT OR BECAUSE OF THE
EVIDENT PURPOSE OF THE ACTS, ETC., INJURIOUSLY RESTRAINED TRADE, THAT
THE WORDS AS USED IN THE STATUTE WERE DESIGNED TO HAVE AND DID HAVE BUT
A LIKE SIGNIFICANCE."  IN THUS GROUNDING THE "RULE OF REASON" UPON THE
ANALOGY OF THE COMMON LAW DOCTRINES APPLICABLE TO ILLEGAL RESTRAINTS OF
TRADE THE COURT GAVE A CONTENT AND MEANING TO THE STATUTE IN HARMONY
WITH ITS HISTORY AND PLAINLY INDICATED BY ITS LEGISLATIVE PURPOSE. 
LABOR CASES APART, WHICH WILL PRESENTLY BE DISCUSSED, THIS COURT HAS
NOT DEPARTED FROM THE CONCEPTION OF THE SHERMAN ACT AS AFFORDING A
REMEDY, PUBLIC AND PRIVATE, FOR THE PUBLIC WRONGS WHICH FLOW FROM
RESTRAINTS OF TRADE IN THE COMMON LAW SENSE OF RESTRICTION OR
SUPPRESSION OF COMMERCIAL COMPETITION.  IN THE CASES CONSIDERED BY THIS
COURT SINCE THE STANDARD OIL CASE IN 1911 SOME FORM OF RESTRAINT OF
COMMERCIAL COMPETITION HAS BEEN THE SINE QUA NON TO THE CONDEMNATION OF
CONTRACTS, COMBINATIONS OR CONSPIRACIES UNDER THE SHERMAN ACT, AND IN
GENERAL RESTRAINTS UPON COMPETITION HAVE BEEN CONDEMNED ONLY WHEN THEIR
PURPOSE OR EFFECT WAS TO RAISE OR FIX THE MARKET PRICE.  FN21  IT IS IN
THIS SENSE THAT IT IS SAID THAT THE RESTRAINTS, ACTUAL OR INTENDED,
PROHIBITED BY THE SHERMAN ACT ARE ONLY THOSE WHICH ARE SO SUBSTANTIAL
AS TO AFFECT MARKET PRICES.  RESTRAINTS ON COMPETITION OR ON THE COURSE
OF TRADE IN THE MERCHANDISING OF ARTICLES MOVING IN INTERSTATE COMMERCE
IS NOT ENOUGH, UNLESS THE RESTRAINT IS SHOWN TO HAVE OR IS INTENDED TO
HAVE AN EFFECT UPON PRICES IN THE MARKET OR OTHERWISE TO DEPRIVE
PURCHASERS OR CONSUMERS OF THE ADVANTAGES WHICH THEY DERIVE FROM FREE
COMPETITION.  CHICAGO BOARD OF TRADE V. UNITED STATES, 246 U.S. 231,
238; UNITED STATES V. UNITED STATES STEEL CO., 251 U.S. 417; CEMENT
MANUFACTURERS ASSN. V. UNITED STATES, 268 U.S. 588; UNITED STATES V.
INTERNATIONAL HARVESTER CO., 274 U.S. 693; APPALACHIAN COALS V. UNITED
STATES, 288 U.S. 344, 375, ET SEQ. FN22 

THE QUESTION REMAINS WHETHER THE EFFECT OF THE COMBINATION OR
CONSPIRACY AMONG RESPONDENTS WAS A RESTRAINT OF TRADE WITHIN THE
MEANING OF THE SHERMAN ACT.  THIS IS NOT A CASE OF A LABOR ORGANIZATION
BEING USED BY COMBINATIONS OF THOSE ENGAGED IN AN INDUSTRY AS THE MEANS
OR INSTRUMENT FOR SUPPRESSING COMPETITION OR FIXING PRICES.  SEE UNITED
STATES V. BRIMS, 272 U.S. 549; LOCAL 167 V. UNITED STATES, 291 U.S.
293.  HERE IT IS PLAIN THAT THE COMBINATION OR CONSPIRACY DID NOT HAVE
AS ITS PURPOSE RESTRAINT UPON COMPETITION IN THE MARKET FOR
PETITIONER'S PRODUCT.  ITS OBJECT WAS TO COMPEL PETITIONER TO ACCEDE TO
THE UNION DEMANDS AND AN EFFECT OF IT, IN CONSEQUENCE OF THE STRIKERS'
TORTIOUS ACTS, WAS THE PREVENTION OF THE REMOVAL OF PETITIONER'S
PRODUCT FOR INTERSTATE SHIPMENT.  SO FAR AS APPEARS THE DELAY OF THESE
SHIPMENTS WAS NOT INTENDED TO HAVE AND HAD NO EFFECT ON PRICES OF
HOSIERY IN THE MARKET, AND SO WAS IN THAT RESPECT NO MORE A RESTRAINT
FORBIDDEN BY THE SHERMAN ACT THAN THE RESTRICTION UPON COMPETITION AND
THE COURSE OF TRADE HELD LAWFUL IN APPALACHIAN COALS V. UNITED STATES,
SUPRA, BECAUSE NOTWITHSTANDING ITS EFFECT UPON THE MARKETING OF THE
COAL IT NEVERTHELESS WAS NOT INTENDED TO AND DID NOT AFFECT MARKET
PRICE.    A COMBINATION OF EMPLOYEES NECESSARILY RESTRAINS COMPETITION
AMONG THEMSELVES IN THE SALE OF THEIR SERVICES TO THE EMPLOYER; YET
SUCH A COMBINATION WAS NOT CONSIDERED AN ILLEGAL RESTRAINT OF TRADE AT
COMMON LAW WHEN THE SHERMAN ACT WAS ADOPTED, EITHER BECAUSE IT WAS NOT
THOUGHT TO BE UNREASONABLE OR BECAUSE IT WAS NOT DEEMED A "RESTRAINT OF
TRADE."  FN23  SINCE THE ENACTMENT OF THE DECLARATION IN SEC. 6 OF THE
CLAYTON ACT THAT "THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR
ARTICLE OF COMMERCE ...  NOR SHALL SUCH (LABOR) ORGANIZATIONS, OR THE
MEMBERS THEREOF, BE HELD OR CONSTRUED TO BE ILLEGAL COMBINATIONS OR
CONSPIRACIES IN THE RESTRAINT OF TRADE UNDER THE ANTITRUST LAWS," IT
WOULD SEEM PLAIN THAT RESTRAINTS ON THE SALE OF THE EMPLOYEE'S SERVICES
TO THE EMPLOYER, HOWEVER MUCH THEY CURTAIL THE COMPETITION AMONG
EMPLOYEES, ARE NOT IN THEMSELVES COMBINATIONS OR CONSPIRACIES IN
RESTRAINT OF TRADE OR COMMERCE UNDER THE SHERMAN ACT. 

STRIKES OR AGREEMENTS NOT TO WORK, ENTERED INTO BY LABORERS TO COMPEL
EMPLOYERS TO YIELD TO THEIR DEMANDS, MAY RESTRICT TO SOME EXTENT THE
POWER OF EMPLOYERS WHO ARE PARTIES TO THE DISPUTE TO COMPETE IN THE
MARKET WITH THOSE NOT SUBJECT TO SUCH DEMANDS.  BUT UNDER THE DOCTRINE
APPLIED TO NON-LABOR CASES, THE MERE FACT OF SUCH RESTRICTIONS ON
COMPETITION DOES NOT IN ITSELF BRING THE PARTIES TO THE AGREEMENT
WITHIN THE CONDEMNATION OF THE SHERMAN ACT.  APPALACHIAN COALS V.
UNITED STATES, SUPRA, 360.  FURTHERMORE, SUCCESSFUL UNION ACTIVITY, AS
FOR EXAMPLE CONSUMMATION OF A WAGE AGREEMENT WITH EMPLOYERS, MAY HAVE
SOME INFLUENCE ON PRICE COMPETITION BY ELIMINATING THAT PART OF SUCH
COMPETITION WHICH IS BASED ON DIFFERENCES IN LABOR STANDARDS.  SINCE,
IN ORDER TO RENDER A LABOR COMBINATION EFFECTIVE IT MUST ELIMINATE THE
COMPETITION FROM NON-UNION MADE GOODS, SEE AMERICAN STEEL FOUNDRIES V.
TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S. 184, 209, AN ELIMINATION OF
PRICE COMPETITION BASED ON DIFFERENCES IN LABOR STANDARDS IS THE
OBJECTIVE OF ANY NATIONAL LABOR ORGANIZATION.  BUT THIS EFFECT ON
COMPETITION HAS NOT BEEN CONSIDERED TO BE THE KIND OF CURTAILMENT OF
PRICE COMPETITION PROHIBITED BY THE SHERMAN ACT.  SEE LEVERING &
GARRIGUES CO. V. MORRIN, SUPRA; CF. AMERICAN FOUNDRIES CASE, SUPRA,
209; NATIONAL ASSOCIATION OF WINDOW GLASS MFRS.  V. UNITED STATES, 263
U.S. 403.  FN24  AND IN ANY CASE, THE RESTRAINT HERE IS, AS WE HAVE
SEEN, OF A DIFFERENT KIND AND HAS NOT BEEN SHOWN TO HAVE ANY ACTUAL OR
INTENDED EFFECT ON PRICE OR PRICE COMPETITION. 

THIS COURT FIRST APPLIED THE SHERMAN ACT TO A LABOR ORGANIZATION IN
LOEWE V. LAWLOR, 208 U.S. 274, IN 1908, HOLDING THAT THE TRIAL COURT
HAD ERRONEOUSLY SUSTAINED A DEMURRER TO THE DECLARATION IN A SUIT FOR
DAMAGES FOR VIOLATION OF THE SHERMAN ACT ON THE GROUND THAT THE
COMBINATION ALLEGED WAS NOT WITHIN THE ACT.  THE COMBINATION OR
CONSPIRACY CHARGED WAS THAT OF A NATION-WIDE LABOR ORGANIZATION TO
FORCE ALL MANUFACTURERS OF FUR HATS IN THE UNITED STATES TO ORGANIZE
THEIR WORKERS BY MAINTAINING A BOYCOTT AGAINST THE PURCHASE OF THE
PRODUCT OF NON-UNION MANUFACTURERS SHIPPED IN INTERSTATE COMMERCE.  THE
RESTRAINT ALLEGED WAS NOT A STRIKE OR REFUSAL TO WORK IN THE
COMPLAINANTS' PLANT, BUT A SECONDARY BOYCOTT BY WHICH, THROUGH THREATS
TO THE MANUFACTURER'S WHOLESALE CUSTOMERS AND THEIR CUSTOMERS, THE
UNION SOUGHT TO COMPEL OR INDUCE THEM NOT TO DEAL IN THE PRODUCT OF THE
COMPLAINANTS, AND TO PURCHASE THE COMPETING PRODUCTS OF OTHER UNIONIZED
MANUFACTURERS.  THIS COURT POINTED OUT THAT THE RESTRAINT WAS PRECISELY
LIKE THAT IN EASTERN STATES RETAIL LUMBER DEALERS CO. V. UNITED STATES,
234 U.S. 600, 610, 614, IN WHICH A CONSPIRACY TO CIRCULATE A "BLACK
LIST," INTENDED TO PERSUADE RETAILERS NOT TO DEAL WITH SPECIFIED
WHOLESALERS, WAS HELD TO VIOLATE THE ACT BECAUSE OF ITS RESTRAINT UPON
COMPETITION WITH UNLISTED WHOLESALERS.  THE COURT IN THE LOEWE CASE
HELD THAT THE BOYCOTT OPERATED AS A RESTRAINT OF TRADE OR COMMERCE
WITHIN THE MEANING OF THE SHERMAN ACT, AND THAT THE LANGUAGE OF THE
ACT, "EVERY COMBINATION, ETC." WAS BROAD ENOUGH TO INCLUDE A LABOR
UNION IMPOSING SUCH A RESTRAINT.  LIKE PROBLEMS FOUND A LIKE SOLUTION
IN DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443, AND IN BEDFORD
CUT STONE CO. V. JOURNEYMEN STONE CUTTERS ASSN., 274 U.S. 37; WHERE, IN
THE ONE CASE, A SECONDARY BOYCOTT, AND IN THE OTHER, THE REFUSAL OF THE
UNION TO WORK ON A PRODUCT IN THE HANDS OF THE PURCHASER, WERE CARRIED
ON ON A COUNTRY-WIDE SCALE BY A NATIONAL LABOR ORGANIZATION, IN ORDER
TO INDUCE THE PURCHASERS OF A MANUFACTURED PRODUCT SHIPPED IN
INTERSTATE COMMERCE TO WITHDRAW THEIR PATRONAGE FROM THE PRODUCER.  IN
BOTH, AS IN THE LOEWE CASE, THE EFFORT OF THE UNION WAS TO COMPEL
UNIONIZATION OF AN EMPLOYER'S FACTORY, NOT BY A STRIKE IN HIS FACTORY
BUT BY RESTRAINING, BY THE BOYCOTT OR REFUSAL TO WORK ON THE
MANUFACTURED PRODUCT, PURCHASES OF HIS PRODUCT IN INTERSTATE COMMERCE
IN COMPETITION WITH THE LIKE PRODUCT OF UNION SHOPS. 

IN THE BEDFORD STONE CASE IT WAS POINTED OUT THAT, AS IN THE DUPLEX
PRINTING PRESS CO. CASE, THE STRIKE WAS DIRECTED AGAINST THE USE OF THE
MANUFACTURED PRODUCT BY CONSUMERS "WITH THE IMMEDIATE PURPOSE AND
EFFECT OF RESTRAINING FUTURE SALES AND SHIPMENTS IN INTERSTATE
COMMERCE" AND "WITH THE PLAIN DESIGN OF SUPPRESSING OR NARROWING THE
INTERSTATE MARKET," AND THAT IN THIS RESPECT THE CASE DIFFERED FROM
THOSE IN WHICH A FACTORY STRIKE, DIRECTED AT THE PREVENTION OF
PRODUCTION WITH CONSEQUENT CESSATION OF INTERSTATE SHIPMENTS, HAD BEEN
HELD NOT TO BE A VIOLATION OF THE SHERMAN LAW.  SEE FIRST CORONADO
CASE, SUPRA; LEATHER WORKERS CASE, SUPRA; CF. SECOND CORONADO CASE,
SUPRA, 310. 

IT WILL BE OBSERVED THAT IN EACH OF THESE CASES WHERE THE ACT WAS
HELD APPLICABLE TO LABOR UNIONS, THE ACTIVITIES AFFECTING INTERSTATE
COMMERCE WERE DIRECTED AT CONTROL OF THE MARKET AND WERE SO WIDESPREAD
AS SUBSTANTIALLY TO AFFECT IT.  THERE WAS THUS A SUPPRESSION OF
COMPETITION IN THE MARKET BY METHODS WHICH WERE DEEMED ANALOGOUS TO
THOSE FOUND TO BE VIOLATIONS IN THE NON-LABOR CASES.  SEE MONTAGUE &
CO. V. LOWRY, 193 U.S. 38, 45, 46; RETAIL LUMBER DEALERS CO. V. UNITED
STATES, SUPRA; PARAMOUNT FAMOUS LASKY CO. V. UNITED STATES, 282 U.S.
30; UNITED STATES V. FIRST NATIONAL PICTURES, 282 U.S. 44.  THAT THE
OBJECTIVE OF THE RESTRAINT IN THE BOYCOTT CASES WAS THE STRENGTHENING
OF THE BARGAINING POSITION OF THE UNION AND NOT THE ELIMINATION OF
BUSINESS COMPETITION - WHICH WAS THE END IN THE NON-LABOR CASES - WAS
THOUGHT TO BE IMMATERIAL BECAUSE THE COURT VIEWED THE RESTRAINT ITSELF,
IN CONTRAST TO THE INTERFERENCE WITH SHIPMENTS CAUSED BY A LOCAL
FACTORY STRIKE, TO BE OF A KIND REGARDED AS OFFENSIVE AT COMMON LAW
BECAUSE OF ITS EFFECT IN CURTAILING A FREE MARKET AND IT WAS HELD TO
OFFEND AGAINST THE SHERMAN ACT BECAUSE IT EFFECTED AND WAS AIMED AT
SUPPRESSION OF COMPETITION WITH UNION MADE GOODS IN THE INTERSTATE
MARKET. 

BOTH THE DUPLEX PRINTING CO. AND BEDFORD STONE CASES FOLLOWED THE
ENACTMENT OF THE CLAYTON ACT AND THE RECOGNITION OF THE "RULE OF
REASON" IN THE STANDARD OIL CASE, SUPRA.  THE APPLICABILITY OF THAT
RULE TO RESTRAINTS UPON COMMERCE AFFECTED BY A LABOR UNION IN ORDER TO
PROMOTE AND CONSOLIDATE THE INTERESTS OF ITS UNION WAS NOT CONSIDERED. 
FN25  BUT AN IMPORTANT POINT CONSIDERED AND DECIDED BY THE COURT IN
BOTH CASES WAS THAT NOTHING IN THE CLAYTON ACT PRECLUDED THE RELIEF
GRANTED.  WE ARE NOT NOW CONCERNED WITH THE MERITS OF EITHER POINT. 
FN26  THE ONLY SIGNIFICANCE OF THE TWO CASES FOR PRESENT PURPOSES IS
THAT IN EACH THE COURT CONSIDERED IT NECESSARY, IN ORDER TO SUPPORT ITS
DECISION, TO FIND THAT THE RESTRAINT OPERATED TO SUPPRESS COMPETITION
IN THE MARKET. 

THIS COURT WAS FIRST CALLED ON TO CONSIDER A CASE LIKE THE PRESENT IN
THE FIRST CORONADO CASE, SUPRA.  THERE A LOCAL BRANCH OF A NATIONAL
LABOR UNION SOUGHT TO UNIONIZE A COAL MINE WHICH WAS SHIPPING ITS
PRODUCT INTERSTATE TO THE EXTENT OF MORE THAN 5,000 TONS A WEEK. 
MEMBERS OF THE UNION COMPELLED THE MINE TO SHUT DOWN, BY FORCE AND
VIOLENCE, INCLUDING MURDER AND ARSON.  BY REASON OF THEIR FORCIBLE
ACTION ALL WORK AT THE MINE WAS PREVENTED, IT FILLED WITH WATER,
SHIPMENTS OF COAL WHICH WERE REGULARLY MOVING IN INTERSTATE COMMERCE AS
MINED, CEASED, AND THE STRIKERS BURNED MORE THAN TEN CARS, THREE OF
THEM LOADED WITH COAL AND SOME BILLED FOR MOVEMENT INTERSTATE.  THIS
COURT, NOTWITHSTANDING THE ADMITTEDLY SUBSTANTIAL EFFECT OF THE STRIKE
ON THE INTERSTATE MOVEMENT OF THE COAL, AND THE ADMITTEDLY ILLEGAL AND
OUTRAGEOUS ACTS OF THE STRIKERS, HELD THAT IT WAS NOT A RESTRAINT OF
TRADE OR COMMERCE PROHIBITED BY THE SHERMAN ACT.  IT RESTED ITS
DECISION SPECIFICALLY ON TWO GROUNDS:  THAT "OBSTRUCTION TO COAL MINING
IS NOT A DIRECT OBSTRUCTION TO INTERSTATE COMMERCE IN COAL,"  FN27  AND
THAT THE INTENT TO OBSTRUCT THE MINING OF COAL AND TO BURN THE LOADED
CARS, DID NOT NECESSARILY IMPLY AN INTENT TO RESTRAIN THE COMMERCE,
ALTHOUGH CONCEDEDLY INTERSTATE SHIPMENTS AND THE FILLING OF INTERSTATE
ORDERS FOR COAL WERE NECESSARILY ENDED BY THE STOPPAGE OF MINING
OPERATIONS AND THE DESTRUCTION OF THE LOADED CARS.  IT PERHAPS SUFFICES
FOR PRESENT PURPOSES TO SAY THAT IF THE STRIKE IN THE CORONADO CASE WAS
NOT WITHIN THE SHERMAN ACT BECAUSE ITS EFFECT UPON THE COMMERCE WAS
"INDIRECT" AND BECAUSE THE "INTENTION" TO SHUT DOWN THE MINE AND
DESTROY THE CARS OF COAL DESTINED FOR AN INTERSTATE SHIPMENT, DID NOT
IMPLY AN "INTENTION TO OBSTRUCT INTERSTATE COMMERCE," THEN THE LIKE
TESTS REQUIRE THE LIKE DECISION HERE. 

BUT WE ARE NOT RELEGATED TO SO MECHANICAL AN APPLICATION OF THESE
CRYPTIC PHRASES IN THE APPLICATION OF THE SHERMAN ANTI-TRUST ACT, FOR
THE COURT HAS SINCE SO INTERPRETED THEM AS TO GIVE TO THE PHRASE
"RESTRAINT OF TRADE OR COMMERCE" A MEANING AND CONTENT CONSONANT WITH
THE LEGISLATIVE AND JUDICIAL HISTORY OF THE ACT TO WHICH WE HAVE
REFERRED.  IN THE LEATHER WORKERS CASE, SUPRA, THE COURT WAS AGAIN
CALLED ON TO DETERMINE WHETHER A LOCAL STRIKE IN A FACTORY WHICH
PREVENTED SHIPMENT OF ITS PRODUCT IN FILLING INTERSTATE ORDERS OF
SUBSTANTIAL VOLUME VIOLATED THE SHERMAN ACT.  AS IN THE FIRST CORONADO
CASE THE COURT HELD THAT THE RESTRAINT WAS NOT ONE PROHIBITED BY THE
SHERMAN ACT.  IT POINTED OUT, PAGE 469, THAT THERE HAS BEEN NO ATTEMPT,
AS IN LOEWE V. LAWLOR, TO BOYCOTT THE SALE OF COMPLAINANT'S PRODUCTS IN
OTHER STATES, AND THAT IF THE INTERRUPTION OF INTERSTATE SHIPMENTS
RESULTING FROM A LOCAL FACTORY STRIKE AIMED AT COMPELLING THE EMPLOYER
TO YIELD TO UNION DEMANDS WERE DEEMED WITHIN THE SWEEP OF THE SHERMAN
ACT, "THE NATURAL, LOGICAL AND INEVITABLE RESULT WILL BE THAT EVERY
STRIKE IN ANY INDUSTRY OR EVEN IN ANY SINGLE FACTORY WILL BE WITHIN THE
SHERMAN ACT AND SUBJECT TO FEDERAL JURISDICTION PROVIDED ANY
APPRECIABLE AMOUNT OF ITS PRODUCT ENTERS INTO INTERSTATE COMMERCE,"
PAGE 471.  AFTER DISCUSSING THE CASES WHICH HAD GIVEN CURRENCY TO THE
NOTION THAT THE SHERMAN ACT, WHERE THE COMBINATION OR CONSPIRACY IS NOT
FORMED WITH THE "INTENT TO RESTRAIN TRADE OR COMMERCE," IS TO BE
APPLIED ONLY TO THOSE RESTRAINTS CHARACTERIZED AS "DIRECT," THE COURT
SAID, PAGE 471: 

"THIS REVIEW OF THE CASES MAKES IT CLEAR THAT THE MERE REDUCTION IN
THE SUPPLY OF AN ARTICLE TO BE SHIPPED IN INTERSTATE COMMERCE, BY THE
ILLEGAL OR TORTIOUS PREVENTION OF ITS MANUFACTURE, IS ORDINARILY AN
INDIRECT AND REMOTE OBSTRUCTION TO THAT COMMERCE.  IT IS ONLY WHEN THE
INTENT OR NECESSARY EFFECT UPON SUCH COMMERCE IN THE ARTICLE IS TO
ENABLE THOSE PREVENTING THE MANUFACTURE TO MONOPOLIZE THE SUPPLY,
CONTROL ITS PRICE OR DISCRIMINATE AS BETWEEN ITS WOULD-BE PURCHASERS,
THAT THE UNLAWFUL INTERFERENCE WITH ITS MANUFACTURE CAN BE SAID
DIRECTLY TO BURDEN INTERSTATE COMMERCE." 

AND THE COURT ADDED, 

"THE RECORD IS ENTIRELY WITHOUT EVIDENCE OR CIRCUMSTANCES TO SHOW
THAT THE DEFENDANTS IN THEIR CONSPIRACY TO DEPRIVE THE COMPLAINANTS OF
THEIR WORKERS WERE THUS DIRECTING THEIR SCHEME AGAINST INTERSTATE
COMMERCE." 

IT WAS THUS MADE APPARENT THAT IN SAYING THAT "INDIRECT OBSTRUCTIONS"
TO COMMERCE WERE NOT CONDEMNED BY THE SHERMAN ACT WHERE THE CONSPIRACY
IS NOT DIRECTED AT THAT COMMERCE, THE COURT WAS NOT SEEKING TO APPLY A
PURELY MECHANICAL TEST OF LIABILITY, BUT WAS USING A SHORTHAND
EXPRESSION TO SIGNIFY THAT THE SHERMAN ACT WAS DIRECTED ONLY AT THOSE
RESTRAINTS WHOSE EVIL CONSEQUENCES ARE DERIVED FROM THE SUPPRESSION OF
COMPETITION IN THE INTERSTATE MARKET, SO AS "TO MONOPOLIZE THE SUPPLY,
CONTROL ITS PRICE OR DISCRIMINATE BETWEEN ITS WOULD-BE PURCHASERS." 
AND IN SPEAKING OF INTENT AS A PREREQUISITE TO LIABILITY UNDER THE ACT
WHERE THE RESTRAINT TO INTERSTATE COMMERCE IS "INDIRECT" IT MEANT NO
MORE THAN THAT THE CONSPIRACY OR COMBINATION MUST BE AIMED OR DIRECTED
AT THE KIND OF RESTRAINT WHICH THE ACT PROHIBITS OR THAT SUCH RESTRAINT
IS THE NATURAL AND PROBABLE CONSEQUENCES OF THE CONSPIRACY. 

THIS WAS AGAIN POINTED OUT IN THE SECOND CORONADO CASE, SUPRA, 310,
WHERE UPON A RETRIAL OF THE CASE ON AMENDED PLEADINGS IT APPEARED THAT
"THE PURPOSE OF THE DESTRUCTION OF THE MINES WAS TO STOP THE PRODUCTION
OF NON-UNION COAL AND PREVENT ITS SHIPMENT TO MARKETS OF OTHER STATES
THAN ARKANSAS, WHERE IT WOULD BY COMPETITION TEND TO REDUCE THE PRICE
OF THE COMMODITY AND AFFECT INJURIOUSLY THE MAINTENANCE OF WAGES FOR
UNION LABOR IN COMPETING MINES,  ...  "  THE COURT DECLARED SUCH A
RESTRAINT TO BE A "DIRECT VIOLATION OF THE SHERMAN ACT."  THE LIKE
DISTINCTION WAS TAKEN AND EXPLANATION MADE IN THE BEDFORD STONE CASE,
SUPRA, PP. 46, 49, WHERE THE RESTRAINT CONSISTED IN THE REFUSAL OF THE
UNIONS TO WORK ON STONE SHIPPED INTERSTATE FROM AN OPEN SHOP QUARRY
AFTER ITS INTERSTATE JOURNEY TO THE PURCHASER HAD ENDED, AND WHERE IT
APPEARED THAT THE PURPOSE OF THE STRIKE WAS TO PREVENT THE INTERSTATE
SALE OF THE STONE IN COMPETITION WITH THE PRODUCT OF UNIONIZED
PRODUCERS.  CF. LEVERING & GARRIGUES CO. V. MORRIN, SUPRA.    THESE
CASES SHOW THAT ACTIVITIES OF LABOR ORGANIZATIONS NOT IMMUNIZED BY THE
CLAYTON ACT ARE NOT NECESSARILY VIOLATIONS OF THE SHERMAN ACT. 
UNDERLYING AND IMPLICIT IN ALL OF THEM IS RECOGNITION THAT THE SHERMAN
ACT WAS NOT ENACTED TO POLICE INTERSTATE TRANSPORTATION, OR TO AFFORD A
REMEDY FOR WRONGS, WHICH ARE ACTIONABLE UNDER STATE LAW, AND RESULT
FROM COMBINATIONS AND CONSPIRACIES WHICH FALL SHORT, BOTH IN THEIR
PURPOSE AND EFFECT, OF ANY FORM OF MARKET CONTROL OF A COMMODITY, SUCH
AS TO "MONOPOLIZE THE SUPPLY, CONTROL ITS PRICE, OR DISCRIMINATE
BETWEEN ITS WOULD-BE PURCHASERS."  THESE ELEMENTS OF RESTRAINT OF
TRADE, FOUND TO BE PRESENT IN THE SECOND CORONADO CASE AND ALONE TO
DISTINGUISH IT FROM THE FIRST CORONADO CASE AND THE LEATHER WORKERS
CASE, ARE WHOLLY LACKING HERE.  WE DO NOT HOLD THAT CONSPIRACIES TO
OBSTRUCT OR PREVENT TRANSPORTATION IN INTERSTATE COMMERCE CAN IN NO
CIRCUMSTANCES BE VIOLATIONS OF THE SHERMAN ACT.  APART FROM THE CLAYTON
ACT IT MAKES NO DISTINCTION BETWEEN LABOR AND NON-LABOR CASES.  WE ONLY
HOLD NOW, AS WE HAVE PREVIOUSLY HELD BOTH IN LABOR AND NON-LABOR CASES,
THAT SUCH RESTRAINTS ARE NOT WITHIN THE SHERMAN ACT UNLESS THEY ARE
INTENDED TO HAVE, OR IN FACT HAVE, THE EFFECTS ON THE MARKET ON WHICH
THE COURT RELIED TO ESTABLISH VIOLATION IN THE SECOND CORONADO CASE. 
UNLESS THE PRINCIPLE OF THESE CASES IS NOW TO BE DISCARDED, AN
IMPARTIAL APPLICATION OF THE SHERMAN ACT TO THE ACTIVITIES OF INDUSTRY
AND LABOR ALIKE WOULD SEEM TO REQUIRE THAT THE ACT BE HELD INAPPLICABLE
TO THE ACTIVITIES OF RESPONDENTS WHICH HAD AN EVEN LESS SUBSTANTIAL
EFFECT ON THE COMPETITIVE CONDITIONS IN THE INDUSTRY THAN THE
COMBINATION OF PRODUCERS UPHELD IN THE APPALACHIAN COALS CASE AND IN
OTHERS ON WHICH IT RELIED.  FN28 

IF, WITHOUT SUCH EFFECTS ON THE MARKET, WE WERE TO HOLD THAT A LOCAL
FACTORY STRIKE, STOPPING PRODUCTION AND SHIPMENT OF ITS PRODUCT
INTERSTATE, VIOLATES THE SHERMAN LAW, PRACTICALLY EVERY STRIKE IN
MODERN INDUSTRY WOULD BE BROUGHT WITHIN THE JURISDICTION OF THE FEDERAL
COURTS, UNDER THE SHERMAN ACT, TO REMEDY LOCAL LAW VIOLATIONS.  THE ACT
WAS PLAINLY NOT INTENDED TO REACH SUCH A RESULT, ITS LANGUAGE DOES NOT
REQUIRE IT, AND THE COURSE OF OUR DECISIONS PRECLUDES IT.  THE
MAINTENANCE IN OUR FEDERAL SYSTEM OF A PROPER DISTRIBUTION BETWEEN
STATE AND NATIONAL GOVERNMENTS OF POLICE AUTHORITY AND OF REMEDIES
PRIVATE AND PUBLIC FOR PUBLIC WRONGS IS OF FAR-REACHING IMPORTANCE.  AN
INTENTION TO DISTURB THE BALANCE IS NOT LIGHTLY TO BE IMPUTED TO
CONGRESS.  THE SHERMAN ACT IS CONCERNED WITH THE CHARACTER OF THE
PROHIBITED RESTRAINTS AND WITH THEIR EFFECT ON INTERSTATE COMMERCE.  IT
DRAWS NO DISTINCTION BETWEEN THE RESTRAINTS EFFECTED BY VIOLENCE AND
THOSE ACHIEVED BY PEACEFUL BUT OFTENTIMES QUITE AS EFFECTIVE MEANS. 
RESTRAINTS NOT WITHIN THE ACT, WHEN ACHIEVED BY PEACEFUL MEANS, ARE NOT
BROUGHT WITHIN ITS SWEEP MERELY BECAUSE, WITHOUT OTHER DIFFERENCES,
THEY ARE ATTENDED BY VIOLENCE.  AFFIRMED. 

FN1  THIS COURT HAS RECENTLY CHARACTERIZED THE ENCOURAGING, AIDING
AND ABETTING THE STRIKERS IN SIMILAR UNLAWFUL ACTS AS A "HIGH-HANDED
PROCEEDING WITHOUT SHADOW OF LEGAL RIGHT," SEE LABOR BOARD V. FANSTEEL
CORP., 306 U.S. 240, 252. 

FN2 MONTAGUE & CO. V. LOWRY, 193 U.S. 38; BALTIMORE & OHIO R. CO. V.
INTERSTATE COMMERCE COMM'N, 221 U.S. 612, 619; SOUTHERN RY. CO. V.
UNITED STATES, 222 U.S. 20; HOUSTON, E. & W.T. RY. CO. V. UNITED
STATES, 234 U.S. 342; CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1;
KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299 U.S. 334;
UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 147; CURRIN V.
WALLACE, 306 U.S. 1; MULFORD V. SMITH, 307 U.S. 38. 

FN3  LABOR BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 38-40;
LABOR BOARD V. FRUEHAUF TRAILER CO., 301 U.S. 49; LABOR BOARD V.
FRIEDMAN-HARRY MARKS CLOTHING CO., 301 U.S. 58; SANTA CRUZ PACKING CO.
V. LABOR BOARD, 303 U.S. 453, 463 ET SEQ.; CONSOLIDATED EDISON CO. V.
LABOR BOARD, 305 U.S. 197; LABOR BOARD V. FAINBLATT, 306 U.S. 601, 604
ET SEQ. SEE LABOR BOARD V. CROWE COAL CO., 104 F.2D 633; LABOR BOARD V.
GOOD COAL CO., 110 F.2D 501. 

FN4  UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290,
342; ADDYSTON PIPE & STEEL CO. V. UNITED STATES, 175 U.S. 211, 243;
UNITED STATES V. PATTEN, 226 U.S. 525, 543; DUPLEX PRINTING PRESS CO.
V. DEERING, 254 U.S. 443, 468; INDUSTRIAL ASSOCIATION OF SAN FRANCISCO
V. UNITED STATES, 268 U.S. 64, 77; BEDFORD CUT STONE CO. V. JOURNEYMEN
STONE CUTTERS ASSN., 274 U.S. 37; CF. LABOR BOARD V. JONES & LAUGHLIN,
301 U.S. 1, 40. 

FN5  THE PUBLIC INTEREST IN PROTECTING INTERSTATE TRANSPORTATION FROM
INTERFERENCE BY STRIKES, RECOGNIZED IN THE DEBS CASE, 158 U.S. 564,
INDEPENDENTLY OF THE SHERMAN LAW, HAS SINCE BEEN PROTECTED BY
LEGISLATION SPECIALLY DIRECTED TO THAT END.  SEE, E.G., ERDMAN ACT, 30
STAT. 424(1898); NEWLANDS ACT, 38 STAT. 103(1913); TITLE III,
TRANSPORTATION ACT OF 1920, 41 STAT. 456, 469; RAILWAY LABOR ACT OF
1926, 44 STAT. 577; RAILWAY LABOR ACT OF 1934, 48 STAT. 1185, 45 U.S.C.
SECS. 151-163.  SEE VIRGINIAN RY. V. FEDERATION, 300 U.S. 515, 545,
553; UNITED STATES V. LOWDEN, 308 U.S. 225, 236.  I SHARFMAN, THE
INTERSTATE COMMERCE COMMISSION, 100-102, NOTES 39, 40. 

FN6  LOEWE V. LAWLOR, 208 U.S. 274; GOMPERS V. BUCKS STOVE & RANGE
CO., 221 U.S. 418; LAWLOR V. LOEWE, 235 U.S. 522; DUPLEX PRINTING PRESS
CO. V. DEERING, 254 U.S. 443; CORONADO COAL CO. V. UNITED MINE WORKERS,
268 U.S. 295; UNITED STATES V. BRIMS, 272 U.S. 549; BEDFORD CUT STONE
CO. V. JOURNEYMEN STONE CUTTERS' ASSN., 274 U.S. 37; LOCAL 167 V.
UNITED STATES, 291 U.S. 293. 

FN7  ELEVEN BILLS INTRODUCED IN CONGRESS SHORTLY AFTER PASSAGE OF THE
SHERMAN ACT PROVIDING, AMONG OTHER THINGS, FOR THE EXEMPTION OF LABOR
FROM PROVISIONS OF THE ACT, FAILED OF ENACTMENT.  THEY ARE H.R. 6640,
IN THE 52ND CONGRESS; H.R. 10539 IN THE 56TH CONGRESS; H.R. 11667 IN
THE 56TH CONGRESS; S. 649 AND H.R. 14947 IN THE 57TH CONGRESS; S. 1728,
H.R. 89, H.R. 166, AND H.R. 2636 IN THE 52ND CONGRESS; H.R. 7938 IN THE
55TH CONGRESS AND H.R. 11988 IN THE 57TH CONGRESS.  THE SOLE PURPOSE OF
ANOTHER BILL, S. 1546, 55TH CONGRESS, WAS TO AMEND THE ACT SO AS TO
EXEMPT ALL LABOR ORGANIZATIONS FROM ITS PROHIBITIONS.  COPIES OF THESE
BILLS ARE PRINTED IN BILLS AND DEBATES RELATING TO TRUSTS, SEN. DOC.
147, 57TH CONG., 2D SESS. 1902-1903, PP. 465 AND 411, 469 AND 449, 473
AND 431, 477 AND 417, 481, 581, 949, 953, 987 AND 999. 

FN8  SEE E.G. SEC. 6 OF THE CLAYTON ACT, 38 STAT. 731, (1914);
RESTRICTIONS ON APPROPRIATIONS, 38 STAT. 53(1913); 44 STAT.
1194(1927). 

FOR DETAILED ACCOUNT OF THE CONGRESSIONAL HISTORY SEE FRANKFURTER AND
GREENE, THE LABOR INJUNCTION (1930), PP. 139-144. 

FN9  CF. COMMENT ON THE LABOR ANTI-TRUST CASES IN A.L.A. SCHECHTER
POULTRY CO. V. UNITED STATES, 295 U.S. 495, 548:  "  ...  THESE
DECISIONS RELATED TO THE APPLICABILITY OF THE FEDERAL STATUTE AND NOT
TO ITS CONSTITUTIONAL VALIDITY,  ...  " AND IN LABOR BOARD V. JONES &
LAUGHLIN CO., 301 U.S. 1, 40, IN DISCUSSING THE FIRST CORONADO CASE IT
WAS SAID "THAT IT HAD NOT BEEN SHOWN THAT THE ACTIVITIES THERE INVOLVED
- A LOCAL STRIKE - BROUGHT THEM WITHIN THE PROVISIONS OF THE ANTI-TRUST
ACT.  ..." 

FN10  SEE DEBATES, 21 CONG. REC. 2460, 3148; 2 HOAR, AUTOBIOGRAPHY OF
SEVENTY YEARS 364; SENATOR EDMUNDS, THE INTERSTATE TRUST AND COMMERCE
ACT OF 1890, 194 NO. AM. REV. 801, 813, "AFTER MOST CAREFUL AND EARNEST
CONSIDERATION BY THE JUDICIARY COMMITTEE OF THE SENATE IT WAS AGREED BY
EVERY MEMBER THAT IT WAS QUITE IMPRACTICABLE TO INCLUDE BY SPECIFIC
DESCRIPTION ALL THE ACTS WHICH SHOULD COME WITHIN THE MEANING AND
PURPOSE OF THE WORDS 'TRADE' AND 'COMMERCE' OR 'TRUST,' OR THE WORDS
'RESTRAINT' OR 'MONOPOLIZE,' BY PRECISE AND ALLINCLUSIVE DEFINITIONS;
AND THAT THESE WERE TRULY MATTERS FOR JUDICIAL CONSIDERATION." 

SEE ALSO SENATOR HOAR WHO WITH SENATOR EDMUNDS PROBABLY DRAFTED THE
BILL (SEE A.H. WALKER, HISTORY OF THE SHERMAN LAW (1910), P. 27-28) IN
36 CONG. REC. 522, JAN. 6, 1903:  "WE UNDERTOOK BY LAW TO CLOTHE THE
COURTS WITH THE POWER AND IMPOSE ON THEM AND THE DEPARTMENT OF JUSTICE
THE DUTY OF PREVENTING ALL COMBINATIONS IN RESTRAINT OF TRADE.  IT WAS
BELIEVED THAT THE PHRASE, 'IN RESTRAINT OF TRADE,' HAD A TECHNICAL AND
WELL-UNDERSTOOD MEANING IN THE LAW." 

FN11  SEE THE BIBLIOGRAPHY ON TRUSTS (1913) PREPARED BY THE LIBRARY
OF CONGRESS.  CF. HOMAN, "INDUSTRIAL COMBINATION AS SURVEYED IN RECENT
LITERATURE," 44 QUART.  J. ECON., 345(1930).  WITH FEW EXCEPTIONS THE
ARTICLES, SCIENTIFIC AND POPULAR, REFLECTED THE POPULAR IDEA THAT THE
ACT WAS AIMED AT THE PREVENTION OF MONOPOLISTIC PRACTICES AND
RESTRAINTS UPON TRADE INJURIOUS TO PURCHASERS AND CONSUMERS OF GOODS
AND SERVICES BY PRESERVATION OF BUSINESS COMPETITION.  SEE E.G. SEAGER
AND GULICK, TRUSTS AND CORPORATION PROBLEMS (1929), 367 ET SEQ., 42
ANN. AM. ACAD., INDUSTRIAL COMPETITION AND COMBINATION (JULY, 1912);
P.L. ANDERSON, COMBINATION V. COMPETITION, 4 EDIT.  REV.  500(1911);
GILBERT HOLLAND MONTAGUE, TRUST REGULATION TODAY, 105 ATL. MONTHLY,
1(1910); FEDERAL REGULATION OF INDUSTRY, 32 ANN. AM. ACAD.  OF POL. 
SCI., NO. 108(1908) PASSIM; CLARK, FEDERAL TRUST POLICY (1931), CH. II,
V; HOMAN, TRUSTS, 15 ENCY.  SOC.  SCIENCES 111, 113, "CLEARLY THE LAW
WAS INSPIRED BY THE PREDATORY COMPETITIVE TACTICS OF THE GREAT TRUSTS
AND ITS PRIMARY PURPOSE WAS THE MAINTENANCE OF THE COMPETITIVE SYSTEM
IN INDUSTRY."  SEE ALSO, SHULMAN, LABOR AND THE ANTI-TRUST LAWS, 34
ILL. L. REV. 769; BOUDIN, THE SHERMAN LAW AND LABOR DISPUTES, 39 COL.
L. REV. 1283; 40 COL. L. REV. 14. 

FN12 THERE WAS NO LACK OF EXISTING LAW TO PROTECT AGAINST EVILS
ASCRIBED TO ORGANIZED LABOR.  LEGISLATIVE AND JUDICIAL ACTION OF BOTH A
CRIMINAL AND CIVIL NATURE ALREADY RESTRAINED CONCERTED ACTION BY
LABOR.  SEE E.G. THE KINDS OF STRIKES WHICH WERE DECLARED ILLEGAL IN
PENNSYLVANIA, INCLUDING A STRIKE ACCOMPANIED BY FORCE OR THREAT OF HARM
TO PERSONS OR PROPERTY, BRIGHTLY'S PURDON'S DIGEST OF 1885, PP. 426,
1172. 

FOR COLLECTION OF STATE STATUTES ON LABOR ACTIVITIES, SEE REPORT OF
THE COMMISSIONER OF LABOR, LABOR LAWS OF THE VARIOUS STATES (1892);
BULL.  370, LABOR LAWS OF THE UNITED STATES WITH DECISIONS RELATING
THERETO, UNITED STATES BUREAU OF LABOR STATISTICS (1925); WITTE, THE
GOVERNMENT IN LABOR DISPUTES (1932), 12-45, 61-81. 

FN13  THREE STATUTES COVERED IN 1890 THE CONGRESSIONAL ACTION IN
RELATION TO OBSTRUCTIONS TO INTERSTATE COMMERCE.  A PENALTY WAS IMPOSED
FOR THE REFUSAL TO TRANSMIT A TELEGRAPH MESSAGE (R.S. SEC. 5269, 17
STAT. 366(1872)), FOR TRANSPORTING NITROGLYCERINE AND OTHER EXPLOSIVES
WITHOUT PROPER SAFEGUARDS (R.S. SEC. 5353, 14 STAT. 81(1866)) AND FOR
COMBINING TO PREVENT THE CONTINUOUS CARRIAGE OF FREIGHT, 24 STAT. 382,
49 U.S.C. SEC. 7. 

FN14  SEE E.G. REGULATION OF:  INTERSTATE CARRIAGE OF LOTTERY
TICKETS, 28 STAT. 963(1895), 18 U.S.C. SEC. 387; TRANSPORTATION OF
OBSCENE BOOKS, 29 STAT. 512(1897), 18 U.S.C. SEC. 396; TRANSPORTATION
OF ILLEGALLY KILLED GAME, 31 STAT. 188(1900), 18 U.S.C. SECS. 392-395;
INTERSTATE SHIPMENT OF INTOXICATING LIQUORS, 35 STAT. 1136(1909), 18
U.S.C. SECS. 388-390; WHITE SLAVE TRAFFIC, 36 STAT. 825(1910), 18
U.S.C. SECS. 397-404; TRANSPORTATION OF PRIZE-FIGHT FILMS, 37 STAT.
240(1912), 18 U.S.C. SECS. 405-407; LARCENY OF GOODS MOVING IN
INTERSTATE COMMERCE, 37 STAT. 670(1913), 18 U.S.C. SEC. 409; VIOLENT
INTERFERENCE WITH FOREIGN COMMERCE, 40 STAT. 221(1917), 18 U.S.C. SEC.
381; TRANSPORTATION OF STOLEN MOTOR VEHICLES, 41 STAT. 324(1919), 18
U.S.C. SEC. 408; TRANSPORTATION OF KIDNAPPED PERSONS, 47 STAT.
326(1932), 18 U.S.C. SEC. 408A-408C; THREATENING COMMUNICATION IN
INTERSTATE COMMERCE, 48 STAT. 781(1934), 18 U.S.C. SEC. 408D;
TRANSPORTATION OF STOLEN OR FELONIOUSLY TAKEN GOODS, SECURITIES OR
MONEY, 48 STAT. 794(1934), 18 U.S.C. SEC. 415; TRANSPORTING
STRIKEBREAKERS, 49 STAT. 1899(1936), 18 U.S.C. SEC. 407A; DESTRUCTION
OR DUMPING OF FARM PRODUCTS RECEIVED IN INTERSTATE COMMERCE, 44 STAT.
1355(1927), 7 U.S.C. SEC. 491.  CF. NATIONAL LABOR RELATIONS ACT, 49
STAT. 449(1935), 29 U.S.C., CH. 7, SEC. 151, "FINDINGS AND DECLARATION
OF POLICY.  THE DENIAL BY EMPLOYERS OF THE RIGHT OF EMPLOYEES TO
ORGANIZE AND THE REFUSAL BY EMPLOYERS TO ACCEPT THE PROCEDURE OF
COLLECTIVE BARGAINING LEAD TO STRIKES AND OTHER FORMS OF INDUSTRIAL
STRIFE AND UNREST, WHICH HAVE THE INTENT OR NECESSARY EFFECT OF
BURDENING OR OBSTRUCTING COMMERCE.  ...  " 

THE ANTI-RACKETEERING ACT, 48 STAT. 979, 18 U.S.C. SEC. 420A-E (1934),
IS DESIGNED TO PROTECT TRADE AND COMMERCE AGAINST INTERFERENCE BY
VIOLENCE AND THREATS.  SEC. 420A PROVIDES THAT "ANY PERSON WHO, IN
CONNECTION WITH OR IN RELATION TO ANY ACT IN ANY WAY OR IN ANY DEGREE
AFFECTING TRADE OR COMMERCE OR ANY ARTICLE OR COMMODITY MOVING OR ABOUT
TO MOVE IN TRADE OR COMMERCE - 

"(A)  OBTAINS OR ATTEMPTS TO OBTAIN, BY THE USE OF OR ATTEMPT TO USE
OR THREAT TO USE FORCE, VIOLENCE, OR COERCION, THE PAYMENT OF MONEY OR
OTHER VALUABLE CONSIDERATIONS  ...  NOT INCLUDING, HOWEVER, THE PAYMENT
OF WAGES BY A BONA FIDE EMPLOYER TO A BONA FIDE EMPLOYEE; OR 

"(B)  OBTAINS THE PROPERTY OF ANOTHER, WITH HIS CONSENT, INDUCED BY
WRONGFUL USE OF FORCE OR FEAR, OR UNDER COLOR OF OFFICIAL RIGHT, OR 

"(C)  COMMITS OR THREATENS TO COMMIT AN ACT OF PHYSICAL VIOLENCE OR
PHYSICAL INJURY TO A PERSON OR PROPERTY IN FURTHERANCE OF A PLAN OR
PURPOSE TO VIOLATE SUBSECTION (A) OR (B); 

"(D)  CONSPIRES OR ACTS CONCERTEDLY WITH ANY OTHER PERSON OR PERSONS
TO COMMIT ANY OF THE FOREGOING ACTS, SHALL, UPON CONVICTION THEREOF, BE
GUILTY OF A FELONY AND SHALL BE PUNISHED BY IMPRISONMENT FROM ONE TO
TEN YEARS OR BY FINE OF $10,000 OR BOTH."    BUT THE APPLICATION OF THE
PROVISIONS OF SEC. 420A TO LABOR UNIONS IS RESTRICTED BY SEC. 420D,
WHICH PROVIDES:  "JURISDICTION OF OFFENSES.  ANY PERSON CHARGED WITH
VIOLATING SECTION 420A OF THIS TITLE MAY BE PROSECUTED IN ANY DISTRICT
IN WHICH ANY PART OF THE OFFENSE HAS BEEN COMMITTED BY HIM OR BY HIS
ACTUAL ASSOCIATES PARTICIPATING WITH HIM IN THE OFFENSE OR BY HIS
FELLOW CONSPIRATORS:  PROVIDED, THAT NO COURT OF THE UNITED STATES
SHALL CONSTRUE OR APPLY ANY OF THE PROVISIONS OF SECTIONS 420A TO 420E
OF THIS TITLE IN SUCH MANNER AS TO IMPAIR, DIMINISH, OR IN ANY MANNER
AFFECT THE RIGHTS OF BONA FIDE LABOR ORGANIZATIONS IN LAWFULLY CARRYING
OUT THE LEGITIMATE OBJECTS THEREOF, AS SUCH RIGHTS ARE EXPRESSED IN
EXISTING STATUTES OF THE UNITED STATES." 

IT IS SIGNIFICANT THAT CHAPTER 9 OF THE CRIMINAL CODE, DEALING WITH
"OFFENSES AGAINST FOREIGN AND INTERSTATE COMMERCE," AND RELATING
SPECIFICALLY TO ACTS OF INTERSTATE TRANSPORTATION OR ITS OBSTRUCTION,
MAKES NO MENTION OF THE SHERMAN ACT, WHICH IS MADE A PART OF THE CODE
WHICH DEALS WITH SOCIAL, ECONOMIC AND COMMERCIAL RESULTS OF INTERSTATE
ACTIVITY, NOTWITHSTANDING ITS CRIMINAL PENALTY. 

FN15  THE HISTORY OF THE SHERMAN ACT AS CONTAINED IN THE LEGISLATIVE
PROCEEDINGS IS EMPHATIC IN ITS SUPPORT FOR THE CONCLUSION THAT
"BUSINESS COMPETITION" WAS THE PROBLEM CONSIDERED AND THAT THE ACT WAS
DESIGNED TO PREVENT RESTRAINTS OF TRADE WHICH HAD A SIGNIFICANT EFFECT
ON SUCH COMPETITION. 

ON JULY 10, 1888, THE SENATE ADOPTED WITHOUT DISCUSSION A RESOLUTION
OFFERED BY SENATOR SHERMAN WHICH DIRECTED THE COMMITTEE ON FINANCE TO
INQUIRE INTO AND REPORT IN CONNECTION WITH REVENUE BILLS, "SUCH
MEASURES AS IT MAY DEEM EXPEDIENT TO SET ASIDE, CONTROL, RESTRAIN, OR
PROHIBIT ALL ARRANGEMENTS, CONTRACTS, AGREEMENTS, TRUSTS, OR
COMBINATIONS BETWEEN PERSONS OR CORPORATIONS, MADE WITH A VIEW, OR
WHICH TEND TO PREVENT FREE AND FULL COMPETITION  ...  WITH SUCH
PENALTIES AND PROVISIONS  ...  AS WILL TEND TO PRESERVE FREEDOM OF
TRADE AND PRODUCTION, THE NATURAL COMPETITION OF INCREASING PRODUCTION,
THE LOWERING OF PRICES BY SUCH COMPETITION  ...  " (19 CONG. REC.
6041.) 

THIS RESOLUTION EXPLICITLY PRESENTED THE ECONOMIC THEORY OF THE
PROPONENTS OF SUCH LEGISLATION.  THE VARIOUS BILLS INTRODUCED BETWEEN
1888 AND 1890 FOLLOW THE THEORY OF THIS RESOLUTION.  MANY BILLS SOUGHT
TO MAKE VOID ALL ARRANGEMENTS "MADE WITH A VIEW, OR WHICH TEND, TO
PREVENT FULL AND FREE COMPETITION IN THE PRODUCTION, MANUFACTURE, OR
SALE OF ARTICLES OF DOMESTIC GROWTH OR PRODUCTION," S. 3445; S. 3510;
H.R. 11339, ALL OF THE 50TH CONG., 1ST SESS. (1888) WERE BILLS OF THIS
TYPE.  IN THE 51ST CONG. (1889) THE BILLS WERE IN A SIMILAR VEIN.  SEE
S. 1, SEC. 1(THIS BILL AS REDRAFTED BY THE JUDICIARY COMMITTEE
ULTIMATELY BECAME THE SHERMAN LAW); H.R. 202, SEC. 3; H.R. 270; H.R.
286; H.R. 402; H.R. 509; H.R. 826; H.R. 3819.  SEE BILLS AND DEBATES IN
CONGRESS RELATING TO TRUSTS (1909), VOL. 1, PP. 1025-1031. 

ONLY ONE, WHICH WAS NEVER ENACTED, S. 1268 IN THE 52D CONG., 1ST SESS.
(1892), INTRODUCED BY SENATOR PEFFER, SOUGHT TO PROHIBIT "EVERY WILFUL
ACT  ...  WHICH SHALL HAVE THE EFFECT TO IN ANYWAY INTERFERE WITH THE
FREEDOM OF TRANSIT OF ARTICLES IN INTERSTATE COMMERCE,  ...  " 

WHEN THE ANTITRUST BILL (S. 1, 51ST CONG., 1ST SESS.), CAME BEFORE
CONGRESS FOR DEBATE, THE DEBATES POINT TO A SIMILAR PURPOSE.  SENATOR
SHERMAN ASSERTED THE BILL PREVENTED ONLY "BUSINESS COMBINATIONS" "MADE
WITH A VIEW TO PREVENT COMPETITION," 21 CONG. REC. 2457, 2562; SEE ALSO
IBID. AT 2459, 2461. 

SENATOR ALLISON SPOKE OF COMBINATIONS WHICH "CONTROL PRICES," IBID.
2471; SENATOR PUGH OF COMBINATIONS "TO LIMIT PRODUCTION" FOR "THE
PURPOSE OF DESTROYING COMPETITION," IBID. 2558; SENATOR MORGAN OF
COMBINATIONS "THAT AFFECT THE PRICE OF COMMODITIES," IBID. 2609;
SENATOR PLATT, A CRITIC OF THE BILL, SAID THIS BILL PROCEEDS ON THE
ASSUMPTION THAT "COMPETITION IS BENEFICENT TO THE COUNTRY," IBID. 2729;
SENATOR GEORGE DENOUNCED TRUSTS WHICH CRUSH OUT COMPETITION "AND THAT
IS THE GREAT EVIL AT WHICH ALL THIS LEGISLATION OUGHT TO BE DIRECTED,"
IBID. 3147. 

IN THE HOUSE, REPRESENTATIVE CULBERSON, WHO WAS IN CHARGE OF THE
BILL, INTERPRETED THE BILL TO PROHIBIT VARIOUS ARRANGEMENTS WHICH TEND
TO DRIVE OUT COMPETITION, IBID. 4089; REPRESENTATIVE WILSON SPOKE IN
FAVOR OF THE BILL AGAINST COMBINATIONS AMONG "COMPETING PRODUCERS TO
CONTROL THE SUPPLY OF THEIR PRODUCT, IN ORDER THAT THEY MAY DICTATE THE
TERMS ON WHICH THEY SHALL SELL IN THE MARKET, AND MAY SECURE RELEASE
FROM THE STRESS OF COMPETITION AMONG THEMSELVES," IBID. 4090. 

THE UNANIMITY WITH WHICH FOES AND SUPPORTERS OF THE BILL SPOKE OF ITS
AIMS AS THE PROTECTION OF FREE COMPETITION, PERMIT USE OF THE DEBATES
IN INTERPRETING THE PURPOSE OF THE ACT.  SEE WHITE, C.J., IN STANDARD
OIL CO. V. UNITED STATES, 221 U.S. 1, 50; UNITED STATES V. SAN
FRANCISCO, ANTE, P. 16. 

SEE ALSO REPORT OF COMMITTEE ON INTERSTATE COMMERCE ON CONTROL OF
CORPORATIONS ENGAGED IN INTERSTATE COMMERCE, S. REPT. 1326, 62D CONG.,
3D SESS. (1913), PP. 2, 4; REPORT OF FEDERAL TRADE COMMISSION, S. DOC.
226, 70TH CONG., 2D SESS. (1929), PP. 343-345. 

FN16  WHILE IT IS IMPOSSIBLE TO CONSIDER ALL THE ANTI-TRUST CASES IN
THIS COURT WITH REFERENCE TO THE QUESTION WHETHER THE ACTS CONDEMNED OR
CONDONED HAD A SUBSTANTIAL EFFECT ON COMPETITION IN THE INDUSTRY,
NEVERTHELESS IN MOST OF THEM, PARTICULARLY IN THE CASES ARISING SINCE
THE DEVELOPMENT OF THE "RULE OF REASON" IN 1912, EMPHASIS WAS PLACED ON
THE "COMPETITIVE CONDITIONS IN THE INDUSTRY." 

IN ADDYSTON PIPE & STEEL CO. V. UNITED STATES, 175 U.S. 211, ARISING
BEFORE THE "RULE OF REASON," JUSTICE PECKHAM ADOPTED JUDGE TAFT'S
STATEMENT OF THE CASE IN HIS OPINION IN THE CIRCUIT COURT OF APPEALS,
POINTING OUT THAT WITHIN SUBSTANTIAL PARTS OF THE UNITED STATES, PRICE
COMPETITION HAD BEEN PRACTICALLY ELIMINATED (SEE PAGE 236).  STANDARD
OIL CO. V. UNITED STATES, 221 U.S. 1, WHICH HERALDED THE "RULE OF
REASON" STRESSED INTENT TO ELIMINATE COMPETITION AND THE PREDATORY
PRACTICES BY WHICH COMPETITION HAD ACTUALLY BEEN ELIMINATED.  UNITED
STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, DECIDED THE SAME DAY,
INVOLVED A TRUST WHICH DOMINATED THE WHOLE INDUSTRY AND EXERCISED ITS
POWER IN SECURING PRICE CONTROL.  IN BOTH THE OIL CASE AND THE TOBACCO
CASE, DECISIONS WERE SPECIFICALLY RESTED ON THE GROUND THAT THE
CONDEMNED COMBINATIONS "UNDULY RESTRICTED COMPETITION." 

A COMBINATION OF TWO GREAT RAILROADS RESULTING IN "DESTROYING OR
GREATLY ABRIDGING THE FREE OPERATION OF COMPETITION THERETOFORE
EXISTING" WAS ENJOINED IN UNITED STATES V. UNION PACIFIC CO., 226 U.S.
61.  BUT WHERE THE MAJORITY OF THE COURT WAS OF OPINION THAT THE
EVIDENCE DID NOT SHOW THAT THE COMBINATION "EVER POSSESSED OR EXERTED
SUFFICIENT POWER WHEN ACTING ALONE TO CONTROL PRICES OF THE PRODUCTS OF
THE INDUSTRY," THE SHERMAN ACT WAS HELD NOT TO APPLY TO THE
COMBINATION, UNITED STATES V. UNITED STATES STEEL CORP., 251 U.S. 417. 
ON FINDING SUCH A POWER TO CONTROL THE OUTPUT, SUPPLY OF THE MARKET AND
THE TRANSPORTATION FACILITIES OF POTENTIAL COMPETITORS, IN THE
ANTHRACITE COAL MARKET, THE ARRANGEMENT WAS HELD VOID IN UNITED STATES
V. READING CO., 253 U.S. 26, 47-48. 

THE BELIEF THAT "COMPETITIVE CONDITIONS IN THE TRADE IN HARVESTING
MACHINES HAVE BEEN ESTABLISHED," COMPELLED THE COURT TO FIND COMPLIANCE
WITH AN EARLIER CONSENT DECREE IN UNITED STATES V. INTERNATIONAL
HARVESTER CO., 274 U.S. 693, 704. 

"IT HAS BEEN REPEATEDLY HELD BY THIS COURT THAT THE PURPOSE OF THE
STATUTE IS TO MAINTAIN FREE COMPETITION IN INTERSTATE COMMERCE  ...  "
AMERICAN COLUMN & LUMBER CO. V. UNITED STATES, 257 U.S. 377, 400;
UNITED STATES V. UNION PACIFIC R. CO., 226 U.S. 61, 87; UNITED STATES
V. READING CO., 226 U.S. 324, 369; EASTERN STATES LUMBER DEALERS' ASSN.
V. UNITED STATES, 234 U.S. 600, 609; UNITED STATES V. TRENTON
POTTERIES, 273 U.S. 392, 397; APPALACHIAN COALS V. UNITED STATES, 288
U.S. 344, 360. 

FOR A COMPLETE COLLECTION OF CASES, SEE HANDLER, INDUSTRIAL MERGERS
AND THE ANTI-TRUST LAWS, 32 COLUMBIA LAW REV. 179; HANDLER, THE SUGAR
INSTITUTE CASE, 36 COLUMBIA LAW REV. 1; THE RULE OF REASON IN LOOSE
KNIT COMBINATIONS, 32 COLUMBIA LAW REV. 291. 

FN17  IN HIS EXPLANATION OF THE BILL SENATOR SHERMAN REFERRED TO
SEVERAL COMMON LAW CASES ON RESTRAINT OF TRADE.  21 CONG. REC. 2457
2460. 

FN18  UNITED STATES V. ADDYSTON PIPE & STEEL CO., 85 F. 271.  SEE
CASES COLLECTED IN HANDLER, CASES ON TRADE REGULATIONS (1937), CC. III,
IV; HANDLER, RESTRAINT OF TRADE, 13 ENCY.  SOC.  SCIENCES, 339. 

FN19  SEE CASES DISCUSSED IN NOTE 15, SUPRA.  SEE ALSO, UNITED STATES
V. FREIGHT ASSOCIATION, 166 U.S. 290; UNITED STATES V. JOINT TRAFFIC
ASSN., 171 U.S. 505; MONTAGUE & CO. V. LOWRY, 193 U.S. 38; NORTHERN
SECURITIES CO. V. UNITED STATES, 193 U.S. 197, 361; NASH V. UNITED
STATES, 229 U.S. 373, 376; CHICAGO BOARD OF TRADE V. UNITED STATES, 246
U.S. 231, 238; MAPLE FLOORING ASSN. V. UNITED STATES, 268 U.S. 563,
583, 584. 

FN20  "WITHOUT GOING INTO DETAIL AND BUT VERY BRIEFLY SURVEYING THE
WHOLE FIELD, IT MAY BE WITH ACCURACY SAID THAT THE DREAD OF ENHANCEMENT
OF PRICES AND OF OTHER WRONGS WHICH IT WAS THOUGHT WOULD FLOW FROM THE
UNDUE LIMITATION ON COMPETITIVE CONDITIONS CAUSED BY CONTRACTS OR OTHER
ACTS OF INDIVIDUALS OR CORPORATIONS, LED, AS A MATTER OF PUBLIC POLICY,
TO THE PROHIBITION OR TREATING AS ILLEGAL ALL CONTRACTS OR ACTS WHICH
WERE UNREASONABLY RESTRICTIVE OF COMPETITIVE CONDITIONS, EITHER FROM
THE NATURE OR CHARACTER OF THE CONTRACT OR ACT OR WHERE THE SURROUNDING
CIRCUMSTANCES WERE SUCH AS TO JUSTIFY THE CONCLUSION THAT THEY HAD NOT
BEEN ENTERED INTO OR PERFORMED WITH THE LEGITIMATE PURPOSE OF
REASONABLY FORWARDING PERSONAL INTEREST AND DEVELOPING TRADE, BUT ON
THE CONTRARY WERE OF SUCH A CHARACTER AS TO GIVE RISE TO THE INFERENCE
OR PRESUMPTION THAT THEY HAD BEEN ENTERED INTO OR DONE WITH THE INTENT
TO DO WRONG TO THE GENERAL PUBLIC AND TO LIMIT THE RIGHT OF
INDIVIDUALS, THUS RESTRAINING THE FREE FLOW OF COMMERCE AND TENDING TO
BRING ABOUT THE EVILS, SUCH AS ENHANCEMENT OF PRICES, WHICH WERE
CONSIDERED TO BE AGAINST PUBLIC POLICY."  STANDARD OIL CO. V. UNITED
STATES, 221 U.S. 1, AT 58. 

FN21  SEE E.G. ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436;
UNITED STATES V. SOCONY-VACUUM OIL CO., ANTE, P. 150, ESPECIALLY NOTE
59 AND CASES CITED. 

FN22  "  ...  'ONLY SUCH CONTRACTS AND COMBINATIONS ARE WITHIN THE
ACT AS, BY REASON OF INTENT OR THE INHERENT NATURE OF THE CONTEMPLATED
ACTS, PREJUDICE THE PUBLIC INTERESTS BY UNDULY RESTRICTING COMPETITION
OR UNDULY OBSTRUCTING THE COURSE OF TRADE.'"  APPALACHIAN COALS V.
UNITED STATES, 288 U.S. 344, 360. 

FN23  COMBINATIONS OF CAPITAL AND LABOR HAVE SELDOM BEEN TREATED AS
PHASES OF A GENERAL MOVEMENT TO SUPPRESS COMPETITION.  SEE TAFT, ANTI
TRUST ACT AND THE SUPREME COURT (1914), P. 21; SEAGER, THE ATTITUDE OF
THE STATE TOWARDS TRADE UNIONS AND TRUSTS, 22 POL.  SCI.  Q. 385(1907);
COMMONS AND ANDREWS, PRINCIPLES OF LABOR LEGISLATION (1927), PP. 125
129. 

IN ENGLAND PRIOR TO 1824 THE TWO TYPES OF COMBINATIONS WERE TREATED
AS SUBSTANTIALLY THE SAME, THE COMBINATIONS ACTS (39 GEO. III, C. 81;
39 & 40 GEO. III, C. 106), PREVENTING COMBINATIONS OF WAGE EARNERS EVEN
FOR THE MORE OBVIOUS PURPOSE OF SECURING HIGHER WAGES OR SHORTER
HOURS.  THESE RESTRICTIONS HAVE BEEN REMOVED BY VARIOUS ACTS (E.G. 5
GEO. IV, C. 95, S. 2; 22 VICT., C. 34; 34 & 35 VICT., C. 31, S.C.; 38 &
39 VICT.  36) UNTIL THE TRADE DISPUTES ACT OF 1906(6 EDW.  VII, C. 47)
WHICH CLEARLY ENCOURAGES THE COMBINATIONS OF WORKMEN.  SEE HENDERSON,
TRADE UNIONS AND THE LAW (1927).  COMPARE THE ENGLISH TREATMENT OF
CAPITAL COMBINATIONS, SEE, THE ANTI-TRUST LAWS OF THE BRITISH
COMMONWEALTH OF NATIONS, 32 COL. L. REV. 324. 

THE EXPERIENCE IN THE UNITED STATES HAS PARALLELED THAT IN ENGLAND. 
IN A FEW EARLY CASES ALL LABOR COMBINATIONS WERE REGARDED AS UNLAWFUL,
GROAT, ATTITUDE OF AMERICAN COURTS IN LABOR CASES, 42 COL. UNIV. 
STUDIES (1911), PP. 36-38, BUT SINCE COMMONWEALTH V. HUNT, 4 METCALF
111(MASS.  1842), THE LEGITIMATE SCOPE OF LABOR COMBINATIONS HAS
STEADILY EXPANDED, SEE FRANKFURTER AND GREENE, THE LABOR INJUNCTION
(1930), C. I; LANDIS, CASES ON LABOR LAW (1934), PP. 32-34.  IN
ADDITION TO THIS DIFFERENCE IN TREATMENT REFLECTED IN JUDICIAL
DECISIONS, MANY STATES HAVE BY LEGISLATION ACCORDED FAVORABLE TREATMENT
TO UNIONS ON OTHER MATTERS.  SEE COLLECTION OF LEGISLATION FAVORABLE TO
UNIONISM FOUND IN UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S.
344, 386, NOTE 1; BULL.  NO. 370, LABOR LAWS OF THE UNITED STATES,
BUREAU OF LABOR STATISTICS, UNITED STATES DEPARTMENT OF LABOR (1925);
WITTE, THE GOVERNMENT AND LABOR DISPUTES (1932), 17 ET SEQ. 

FN24  FEDERAL LEGISLATION AIMED AT PROTECTING AND FAVORING LABOR
ORGANIZATIONS AND ELIMINATING THE COMPETITION OF EMPLOYERS AND
EMPLOYEES BASED ON LABOR CONDITIONS REGARDED AS SUBSTANDARD, THROUGH
THE ESTABLISHMENT OF INDUSTRY-WIDE STANDARDS BOTH BY COLLECTIVE
BARGAINING AND BY LEGISLATION SETTING UP MINIMUM WAGE AND HOUR
STANDARDS, SUPPORTS THE CONCLUSION THAT CONGRESS DOES NOT REGARD THE
EFFECTS UPON COMPETITION FROM SUCH COMBINATIONS AND STANDARDS AS
AGAINST PUBLIC POLICY OR CONDEMNED BY THE SHERMAN ACT. 

THE NORRIS-LAGUARDIA ACT, 47 STAT. 70, 29 U.S.C. SECS. 101-115,
LIMITING THE USE OF INJUNCTIONS IN LABOR DISPUTES, IS PREDICATED ON THE
POLICY THAT "UNDER PREVAILING ECONOMIC CONDITIONS," IT IS NECESSARY
THAT THE WORKER "HAVE FULL FREEDOM OF ASSOCIATION  ...  TO NEGOTIATE
THE TERMS AND CONDITIONS OF HIS EMPLOYMENT."  THE RAILWAY LABOR ACT OF
1934, 48 STAT. 1185, 45 U.S.C. SECS. 151-164, PROVIDED FOR INDEPENDENCE
OF RAILROAD EMPLOYEES IN THE MATTER OF SELF-ORGANIZATION.  THE NATIONAL
LABOR RELATIONS ACT, 49 STAT. 449, 29 U.S.C. SECS. 151-166, WAS PASSED
TO PROTECT THE WORKERS IN THE "EXERCISE OF FULL FREEDOM OF ASSOCIATION,
SELF-ORGANIZATION, AND DESIGNATION OF REPRESENTATIVES OF THEIR OWN
CHOOSING FOR THE PURPOSE OF NEGOTIATING THE TERMS AND CONDITIONS OF
THEIR EMPLOYMENT  ...  " AND EXPRESSLY PROTECTS THE RIGHT OF SELF
ORGANIZATION, RECOGNIZES THE STRIKE AS A PROPER UNION WEAPON AND
PERMITS CLOSED-SHOP CONTRACTS.    THE PUBLIC CONTRACTS ACT, 49 STAT.
2036, 41 U.S.C. SECS. 35-48, WAS AIMED AT PREVENTING PRICE COMPETITION
IN GOVERNMENT BIDDING BASED ON WAGE CUTTING AND AUTHORIZES THE
ESTABLISHMENT OF MINIMUM WAGE STANDARDS.  THE FAIR LABOR STANDARDS ACT
OF 1938, 52 STAT. 1060, 29 U.S.C. SECS. 201-219, LIKEWISE SEEKS TO
ELIMINATE COMPETITION WHICH THRIVED UPON LOW WAGES AND SUBSTANDARD
WORKING CONDITIONS. 

THIS SERIES OF ACTS CLEARLY RECOGNIZES THAT COMBINATIONS OF WORKERS
ELIMINATING COMPETITION AMONG THEMSELVES AND RESTRICTING COMPETITION
AMONG THEIR EMPLOYERS BASED ON WAGE CUTTING ARE NOT CONTRARY TO THE
PUBLIC POLICY. 

FN25 WHETHER THE INTEREST OF THE LABOR UNIONS IN THESE CASES IN
MAINTAINING AND EXTENDING THEIR RESPECTIVE ORGANIZATIONS, RENDERED THE
RESTRAINT REASONABLE AS A MEANS OF ATTAINING THAT END WITHIN THE COMMON
LAW RULE, OR BROUGHT THE RESTRAINTS WITHIN THE RULE OF REASON DEVELOPED
AND ANNOUNCED IN THE STANDARD OIL CASE, WAS NOT DISCUSSED AND WE NEED
NOT CONSIDER IT HERE.  RESTRAINTS UPON THE COMPETITIVE MARKETING OF A
MANUFACTURER'S PRODUCT BROUGHT ABOUT BY AN AGREEMENT BETWEEN THE
EMPLOYER AND HIS EMPLOYEES IN ORDER TO SECURE CONTINUOUS EMPLOYMENT OF
THE EMPLOYEES WAS HELD TO BE WITHIN THE RULE OF REASON AND THEREFORE
NOT AN UNREASONABLE RESTRAINT OF TRADE IN NATIONAL ASSOCIATION OF
WINDOW GLASS MFRS.  V. UNITED STATES, 263 U.S. 403. 

FN26  SECTION 6 OF THE CLAYTON ACT DECLARED THAT "NOTHING CONTAINED
IN THE ANTI-TRUST LAWS SHALL BE CONSTRUED  ...  TO FORBID OR RESTRAIN
INDIVIDUAL MEMBERS OF SUCH ORGANIZATIONS FROM LAWFULLY CARRYING OUT THE
LEGITIMATE OBJECTS THEREOF; NOR SHALL SUCH ORGANIZATIONS, OR THE
MEMBERS THEREOF, BE HELD OR CONSTRUED TO BE ILLEGAL COMBINATIONS OR
CONSPIRACIES IN RESTRAINT OF TRADE, UNDER THE ANTI-TRUST LAWS."  AND
SEC. 20 OF THE CLAYTON ACT PROVIDED, "NO RESTRAINING ORDER OR
INJUNCTION SHALL BE GRANTED BY ANY COURT OF THE UNITED STATES, OR A
JUDGE OR THE JUDGES THEREOF, IN ANY CASE BETWEEN AN EMPLOYER AND
EMPLOYEES, OR BETWEEN EMPLOYERS AND EMPLOYEES  ...  INVOLVING, OR
GROWING OUT OF, A DISPUTE CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT,
UNLESS NECESSARY TO PREVENT IRREPARABLE INJURY TO PROPERTY, OR TO A
PROPERTY RIGHT.  ... 

"AND NO SUCH RESTRAINING ORDER OR INJUNCTION SHALL PROHIBIT ANY
PERSON OR PERSONS, WHETHER SINGLY OR IN CONCERT, FROM TERMINATING ANY
RELATION OF EMPLOYMENT OR FROM CEASING TO PERFORM ANY WORK OR LABOR, OR
FROM RECOMMENDING, ADVISING, OR PERSUADING OTHERS BY PEACEFUL MEANS SO
TO DO; ...  OR FROM CEASING TO PATRONIZE OR TO EMPLOY ANY PARTY TO SUCH
DISPUTE, OR FROM RECOMMENDING, ADVISING, OR PERSUADING OTHERS BY
PEACEFUL AND LAWFUL MEANS SO TO DO; ...  NOR SHALL ANY OF THE ACTS
SPECIFIED IN THIS PARAGRAPH BE CONSIDERED OR HELD TO BE VIOLATIONS OF
ANY LAW OF THE UNITED STATES." 

IN BOTH THE DUPLEX PRINTING PRESS CO. AND THE BEDFORD STONE CUTTERS
CASES, IT WAS HELD THAT THE PROHIBITION OF SEC. 6 OF THE CLAYTON ACT
DID NOT EXTEND TO ILLEGAL COMBINATIONS OR CONSPIRACIES IN RESTRAINT OF
TRADE, WHICH THE CONCERTED ACTION TAKEN BY THE LABOR UNIONS IN THESE
CASES WAS HELD TO BE, AND THAT THE RESTRICTIONS OF SEC. 20 OF THE
CLAYTON ACT UPON THE INJUNCTION APPLIED ONLY TO ACTUAL DISPUTES BETWEEN
AN EMPLOYER AND HIS EMPLOYEES, WITH RESPECT TO THE TERMS OR CONDITIONS
OF THEIR OWN EMPLOYMENT, AND DID NOT EXTEND TO ACTS OF LABOR UNIONS,
BOYCOTTING THE PRODUCT OF AN EMPLOYER BY WHOM THEY WERE NOT EMPLOYED. 
CF. NEW NEGRO ALLIANCE V. SANITARY GROCERY CO., 303 U.S. 552. 

FN27  THE ASSERTION THAT THE DECISION IN THE FIRST CORONADO CASE
RESTS ON THE GROUND THAT "PRODUCTION, AS SUCH - IN THAT CASE, COAL
MINING - WAS NOT INTERSTATE COMMERCE" IS NEITHER SUPPORTED BY THE
OPINION IN THAT CASE NOR BY ITS SUBSEQUENT INTERPRETATION BY THIS
COURT.  SEE SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495,
548; LABOR BOARD V. JONES & LAUGHLIN CO., 301 U.S. 1, 40.  SEE NOTE 9,
SUPRA.  CF. SUNSHINE ANTHRACITE COAL CO. V. ADKINS, ANTE, P. 381.  THE
OPINION RECOGNIZED THAT THE CESSATION OF PRODUCTION OF THE COAL
PREVENTED INTERSTATE COMMERCE IN THE COAL BUT HELD THAT IT DID NOT
VIOLATE THE SHERMAN ACT BECAUSE THE EFFECT ON THE COMMERCE WAS
"INDIRECT," TO WHICH IT WAS THOUGHT THE SHERMAN ACT DID NOT APPLY. 

FN28  IT IS SAID TO BE ANOMALOUS TO HOLD EMPLOYERS SUBJECT TO THE
LABOR ACT BECAUSE THEIR UNFAIR PRACTICES WOULD PREVENT THE SHIPMENT OF
THEIR GOODS IN INTERSTATE COMMERCE, AND AT THE SAME TIME TO HOLD THE
ACTIVITIES OF EMPLOYEES WHICH AMOUNT TO A "DIRECT AND INTENTIONAL
OBSTRUCTION" TO INTERSTATE MOVEMENT OF GOODS, NOT TO BE WITHIN THE
MEANING OF "RESTRAINT OF TRADE OR COMMERCE," UNDER THE SHERMAN ACT.  IF
ANY OTHER ANSWER THAN A COMPARISON OF THE LEGISLATIVE HISTORY AND
OBJECTIVES OF THE TWO ACTS, AND OUR DECISIONS UNDER THEM, WERE NEEDED,
IT SEEMS OBVIOUS THAT THE SHERMAN ACT CANNOT BE SAID TO SUBJECT
EMPLOYEES TO A LIABILITY WHICH IT DOES NOT IMPOSE ON EMPLOYERS OR
OTHERS. 

MR. CHIEF JUSTICE HUGHES, DISSENTING: 

THE UNDISPUTED FACTS WILL BEAR A BRIEF REPETITION, FOR UPON AN
APPRECIATION OF THEIR TRUE IMPORT HINGES THE APPLICATION OF THE SHERMAN
ACT. 

AS THE CIRCUIT COURT OF APPEALS SAID, THE EVIDENCE DISCLOSED A "SIT
DOWN STRIKE IN ITS MOST AGGRAVATED AND ILLEGAL FORM."  WHEN THE UNION
DEMANDED A CLOSED SHOP AGREEMENT AND, ON ITS REFUSAL, DECLARED THE
STRIKE, ONLY EIGHT OF THE COMPANY'S TWENTY-FIVE HUNDRED EMPLOYEES WERE
MEMBERS OF THE UNION.  THE COMPANY'S PLANT WAS SEIZED AND HELD FOR
SEVERAL WEEKS.  ITS MACHINERY AND EQUIPMENT WERE "WANTONLY DEMOLISHED
OR DAMAGED TO THE EXTENT OF MANY THOUSANDS OF DOLLARS." 

THERE WAS NOT MERELY A STOPPAGE OF PRODUCTION, BUT THERE WAS ALSO A
DELIBERATE PREVENTION OF THE SHIPMENT OF FINISHED GOODS TO CUSTOMERS
OUTSIDE THE STATE.  THIS WAS NOT SIMPLY THE RESULT OF THE OCCUPATION OF
THE PLANT BUT WAS DUE TO THE REPEATED AND EXPLICIT REFUSALS OF THE
UNION TO PERMIT THE SHIPMENT.  THESE GOODS AMOUNTED TO 134,000 DOZENS
OF FINISHED HOSIERY, OF THE VALUE OF ABOUT $800,000, OF WHICH 80 PER
CENT, AS RESPONDENTS WELL KNOW, WERE READY FOR SHIPMENT IN INTERSTATE
COMMERCE.  THE EVIDENCE IS THAT THE COMPANY'S REPRESENTATIVE THUS
BESOUGHT THE UNION'S PRESIDENT: "WE HAVE ORDERS ON HAND FROM CUSTOMERS
ALL OVER THE COUNTRY WHICH WE CAN FILL WITH MERCHANDISE WHICH WE HAVE
ON HAND AT THE PLANT.  WILL YOU PERMIT US TO GO INTO THE PLANT FOR THE
SOLE PURPOSE OF REMOVING THAT FINISHED MERCHANDISE SO THAT WE CAN SHIP
IT AGAINST ORDERS?"  THE UNION'S PRESIDENT EMPHATICALLY ANSWERED:  "NO,
NOT UNTIL THIS STRIKE IS SETTLED." 

THERE WAS THUS A DIRECT AND INTENTIONAL PREVENTION OF INTERSTATE
COMMERCE IN THE FURTHERANCE OF AN ILLEGAL CONSPIRACY.  THIS, I TAKE IT,
THE OPINION OF THE COURT CONCEDES.  WHATEVER VISTAS OF NEW
UNCERTAINTIES IN THE APPLICATION OF THE SHERMAN ACT THE PRESENT
DECISION MAY OPEN, IT SEEMS TO BE DEFINITELY DETERMINED THAT A
CONSPIRACY OF WORKERS, OR FOR THAT MATTER OF OTHERS, TO OBSTRUCT OR
PREVENT THE SHIPMENT OR DELIVERY OF GOODS IN INTERSTATE COMMERCE TO
FILL ORDERS OF THE CUSTOMERS OF A MANUFACTURER OR DEALER IS NOT A
VIOLATION OF THE SHERMAN ACT.  WITH THAT CONCLUSION I CANNOT AGREE. 

THE ARGUMENT HAS BEEN PRESSED IN THIS CASE, AND IN OTHER RECENT
CASES, THAT THE SHERMAN ACT DOES NOT APPLY TO LABOR UNIONS.  THE COURT
FINDS THAT ARGUMENT UNTENABLE, REFERRING TO OUR DECISIONS TO THE
CONTRARY AND TO THE FAILURE OF REPEATED ATTEMPTS TO PERSUADE CONGRESS
TO EXCLUDE LABOR ORGANIZATIONS FROM THE OPERATION OF THE ACT. 
RESPONDENTS' ARGUMENT FOR IMMUNITY UNDER THE TERMS OF SECS. 6 AND 20 OF
THE CLAYTON ACT  FN1  HAS ALSO BEEN FOUND UNAVAILING.  SECTION 6
DECLARES THAT "THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR ARTICLE
OF COMMERCE" AND THAT NOTHING IN THE ANTI-TRUST LAWS SHALL BE CONSTRUED
TO FORBID THE EXISTENCE AND OPERATION OF LABOR ORGANIZATIONS INSTITUTED
FOR THE PURPOSE OF MUTUAL HELP, "OR TO FORBID OR RESTRAIN INDIVIDUAL
MEMBERS OF SUCH ORGANIZATIONS FROM LAWFULLY CARRYING OUT THE LEGITIMATE
OBJECTS THEREOF; NOR SHALL SUCH ORGANIZATIONS, OR THE MEMBERS THEREOF,
BE HELD OR CONSTRUED TO BE ILLEGAL COMBINATIONS OR CONSPIRACIES IN
RESTRAINT OF TRADE, UNDER THE ANTI-TRUST LAWS."  THE REFERENCE IN THE
LAST CLAUSE TO "SUCH ORGANIZATIONS" HAS MANIFEST REFERENCE TO WHAT
PRECEDES, AND THE IMMUNITY CONFERRED IS ONLY WITH RESPECT TO THE
"LAWFULLY CARRYING OUT" OF THEIR "LEGITIMATE OBJECTS."  SECTION 20
FORBIDS THE GRANTING OF INJUNCTIONS PROHIBITING PERSONS "SINGLY OR IN
CONCERT" FROM "TERMINATING ANY RELATION OF EMPLOYMENT," OR FROM
ENGAGING IN DESCRIBED ACTIVITIES OF PERSUASION, ETC., WHEN THESE ARE
"PEACEFUL AND LAWFUL"; OR "FROM PEACEABLY ASSEMBLING IN A LAWFUL
MANNER, AND FOR LAWFUL PURPOSES."  THE INAPPLICABILITY OF THESE
PROVISIONS IS APPARENT. 

BUT WHILE THE CLAYTON ACT DOES NOT GIVE THE IMMUNITY DESIRED BY
RESPONDENTS, AND LABOR UNIONS ARE FOUND BY THE COURT TO BE WITHIN THE
PURVIEW OF THE SHERMAN ACT "TO SOME EXTENT AND IN SOME CIRCUMSTANCES,"
THE ACT IS CONSTRUED AS NOT EMBRACING THE DIRECT AND DELIBERATE
INTERFERENCE WITH INTERSTATE COMMERCE THAT IS HERE DISCLOSED.  I THINK
THAT THIS CONSTRUCTION OF THE STATUTE IS TOO NARROW. 

"COMBINATION IN THE FORM OF TRUST OR OTHERWISE, OR CONSPIRACY, IN
RESTRAINT OF TRADE OR COMMERCE AMONG THE SEVERAL STATES, OR WITH
FOREIGN NATIONS."  "CONSPIRACY" IS A FAMILIAR TERM OF ART AND MEANS A
COMBINATION OF TWO OR MORE PERSONS BY CONCERTED ACTION TO ACCOMPLISH AN
UNLAWFUL PURPOSE, OR SOME PURPOSE NOT IN ITSELF UNLAWFUL BY UNLAWFUL
MEANS.  THERE WAS PLAINLY A CONSPIRACY HERE.  TO "RESTRAIN" IS TO HOLD
BACK, REPRESS, OBSTRUCT,  - TO HINDER FROM LIBERTY OF ACTION. 
MANIFESTLY THERE WAS RESTRAINT IN THIS CASE.  WHAT THEN IS THE
SIGNIFICANCE OF THE TERM "COMMERCE" AS USED IN THE ACT?  ADOPTING THE
LANGUAGE OF THE CONSTITUTION, CONGRESS EVIDENTLY USED THE TERM IN ITS
CONSTITUTIONAL SENSE.  "COMMERCE" IS INTERCOURSE; IN ITS MOST LIMITED
MEANING IT EMBRACES TRAFFIC.  GIBBONS V. OGDEN, 9 WHEAT.  1, 189. 
"COMMERCE" MANIFESTLY COVERS THE SHIPMENT AND TRANSPORTATION OF
COMMODITIES ACROSS STATE LINES TO EXECUTE CONTRACTS OF SALE.  THE TERM
"COMMERCE," WE SAID IN SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1,
46, "EMBRACES COMMERCIAL INTERCOURSE IN ALL ITS BRANCHES, INCLUDING
TRANSPORTATION OF PASSENGERS AND PROPERTY BY COMMON CARRIERS WHETHER
CARRIED ON BY WATER OR BY LAND." 

AS THE INSTANT CASE FALLS DIRECTLY WITHIN THE LANGUAGE OF THE SHERMAN
ACT IN ITS NATURAL IMPORT, THE QUESTION IS WHETHER THAT LANGUAGE HAS
BEEN, OR SHOULD BE, SO NARROWED BY JUDICIAL CONSTRUCTION AS TO EXCLUDE
FROM ITS APPLICATION THE CONSPIRACY AND RESTRAINT HERE FOUND.  THE
SCOPE OF THIS QUESTION IS NOT ONLY LIMITED BY THE CONCLUSION OF THE
COURT THAT LABOR UNIONS ARE NOT EXCEPTED FROM THE ACT BUT ALSO BY THE
COURT'S REJECTION OF THE BASES OF THE DECISION OF THE COURT BELOW. 
THUS THE IMMEDIACY OF THE EFFECT OF RESPONDENTS' ACTION UPON INTERSTATE
COMMERCE IS ADMITTED, AND THE ARGUMENT THAT THE INTERDICTED SHIPMENTS
CONSTITUTED BUT A SMALL PART OF THE "TOTAL NATIONAL OUTPUT IN THE
INDUSTRY" IS DISMISSED AS IRRELEVANT.  THIS RULING NECESSARILY FOLLOWS
FROM THE REASONING OF OUR DECISIONS UNDER THE NATIONAL LABOR RELATIONS
ACT.  IN LABOR BOARD V. FAINBLATT, 306 U.S. 601, 606, WE SAID THAT "THE
EXERCISE OF CONGRESSIONAL POWER UNDER THE SHERMAN ACT  ... HAS NEVER
BEEN THOUGHT TO BE CONSTITUTIONALLY RESTRICTED BECAUSE IN ANY
PARTICULAR CASE THE VOLUME OF THE COMMERCE AFFECTED MAY BE SMALL." 
HERE, THE VOLUME AFFECTED WAS VERY SUBSTANTIAL ALTHOUGH IT WAS BUT A
SMALL PROPORTION OF THE ENTIRE TRAFFIC IN SIMILAR COMMODITIES.  AGAIN,
THE COURT REJECTS THE CONCLUSION OF THE COURT BELOW THAT THE EVIDENCE
DID NOT SUSTAIN A FINDING THAT RESPONDENTS INTENDED TO PREVENT THE
SHIPMENT OF THE GOODS.  THE CONTRARY, AS WE HAVE SEEN, WAS CLEARLY
SHOWN. 

NOR DOES THE "RULE OF REASON" AID RESPONDENTS.  FN3  THE TEST OF
REASONABLENESS UNDER THAT RULE IS THE EFFECT OF THE AGREEMENT OR
COMBINATION, NOT THE MOTIVES WHICH INSPIRE IT.  LEADERS OF INDUSTRY
HAVE BEEN TAUGHT IN STRIKING FASHION THAT WHEN THE COURT FINDS THAT
THEY HAVE COMBINED TO IMPOSE A DIRECT RESTRAINT UPON INTERSTATE
COMMERCE, THEIR BENEVOLENT PURPOSES TO PROMOTE THE INTEREST OF THE
INDUSTRY, OR TO RESCUE IT FROM A DISTRESSFUL CONDITION, WILL NOT SAVE
THEM EVEN FROM CRIMINAL PROSECUTION FOR VIOLATION OF THE SHERMAN ACT. 
SEE UNITED STATES V. SOCONY-VACUUM OIL CO., ANTE, P. 150.  IF LABOR
UNIONS ARE NOT EXCEPTED FROM THE ACT, AND THEY HAVE ACTED OUTSIDE THE
LEGITIMATE FIELD CONTEMPLATED BY THE CLAYTON ACT, THE IMPARTIAL
ENFORCEMENT OF THE LAW WOULD SEEM TO REQUIRE THAT THE SAME DOCTRINE BE
APPLIED TO THEM.  IN THAT VIEW, THE PURPOSE OF RESPONDENTS TO PROMOTE
THE INTERESTS OF LABOR ORGANIZATION CANNOT BE DEEMED TO JUSTIFY THE
DIRECT AND INTENTIONAL RESTRAINT THEY IMPOSED UPON INTERSTATE
COMMERCE.  THE OPINION OF THE COURT DOES NOT APPEAR TO HOLD OTHERWISE. 
FROM NO POINT OF VIEW, AS IT SEEMS TO ME, CAN THE RESTRAINT BE REGARDED
AS REASONABLE. 

WHY THEN SHOULD THE SHERMAN ACT BE CONSTRUED TO BE INAPPLICABLE?  IT
IS SAID THAT THE ACT WAS NOT AIMED AT "POLICING" INTERSTATE
TRANSPORTATION.  BUT THIS WOULD SEEM TO BE A STATEMENT OF RESULT RATHER
THAN A JUSTIFICATION FOR REACHING IT.  IF "POLICING" MEANS THE
PROTECTION OF INTERSTATE TRANSPORTATION FROM UNLAWFUL CONSPIRACIES TO
RESTRAIN IT, IT WOULD SEEM THAT THE SHERMAN ACT PROVIDES THAT
PROTECTION.  THE FACT THAT VARIOUS STATUTES HAVE BEEN PASSED BY
CONGRESS TO PREVENT THE TRANSPORTATION OF ARTICLES DEEMED TO BE
INJURIOUS DOES NOT INDICATE THE CONTRARY, FOR THESE ARE STATUTES
RESTRICTING THE RIGHT OF TRANSPORTATION IN ORDER TO PROTECT THE PUBLIC,
WHILE THE SHERMAN ACT IS AIMED AT SECURING THE FREEDOM OF
TRANSPORTATION IN LAWFUL COMMERCE.    THE QUESTION WHETHER A CONSPIRACY
TO PREVENT TRANSPORTATION IN INTERSTATE COMMERCE WAS WITHIN THE SHERMAN
ACT CAME BEFORE THE CIRCUIT COURTS NOT LONG AFTER THE ACT WAS PASSED. 
IN UNITED STATES V. WORKINGMEN'S AMALGAMATED COUNCIL, 54 F. 994, IT
APPEARED THAT IN CONSEQUENCE OF A DIFFERENCE BETWEEN THE WAREHOUSEMEN
IN NEW ORLEANS AND THEIR EMPLOYEES AND THE PRINCIPAL DRAYMEN AND THEIR
SUBORDINATES, A STRIKE WAS CALLED BY LABOR ASSOCIATIONS WHICH ENFORCED
"A DISCONTINUANCE OF LABOR IN ALL KINDS OF BUSINESS, INCLUDING THE
BUSINESS OF TRANSPORTATION OF GOODS AND MERCHANDISE WHICH WERE IN
TRANSIT THROUGH THE CITY OF NEW ORLEANS, FROM STATE TO STATE, AND TO
AND FROM FOREIGN COUNTRIES."  BY THE INTENDED EFFECT OF THE DEFENDANTS'
ACTIONS, "NOT A BALE OF GOODS CONSTITUTING THE COMMERCE OF THE COUNTRY
COULD BE MOVED."  DISTRICT JUDGE BILLINGS, SITTING IN THE CIRCUIT
COURT, CONCLUDED THAT THERE WAS NO QUESTION "BUT THAT THE COMBINATION
OF THE DEFENDANTS WAS IN RESTRAINT OF COMMERCE" AND HENCE A VIOLATION
OF THE SHERMAN ACT.  ID., PP. 999, 1000.  AN INJUNCTION WAS GRANTED AND
THE ORDER WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  57 F. 85. 

A SIMILAR VIEW WAS APPARENTLY ENTERTAINED BY CIRCUIT JUDGE TAFT AND
CIRCUIT JUDGE LURTON.  SEE THOMAS V. CINCINNATI, N.O. & T.P. RY. CO.,
62 F. 803, 821.  IT WAS NOTED IN THAT CASE THAT A CONSPIRACY TO PREVENT
TRANSPORTATION MIGHT RESULT IN THE PARALYSIS OF INTERSTATE COMMERCE. 
ID., P. 822. 

IN THE CASE OF UNITED STATES V. DEBS, 64 F. 724, THE UNITED STATES
BROUGHT SUIT TO ENJOIN THOSE ENGAGED IN A CONSPIRACY TO INTERFERE WITH
TRANSPORTATION UPON SEVERAL RAILROADS, AND AN INJUNCTION HAVING BEEN
ISSUED AND DISOBEYED, CONTEMPT PROCEEDINGS WERE INSTITUTED.  THE
QUESTION WAS WHETHER THE FEDERAL COURT HAD JURISDICTION TO ISSUE THE
INJUNCTION.  CIRCUIT JUDGE WOODS FOUND THAT IT HAD AND BASED HIS
DECISION UPON THE SHERMAN ACT.  AFTER STATING THAT THE ORIGINAL DESIGN
OF THE ACT TO SUPPRESS TRUSTS AND MONOPOLIES CREATED BY CONTRACT OR
COMBINATION IN THE FORM OF TRUST, WHICH WOULD BE OF A CONTRACTUAL
CHARACTER, WAS ADHERED TO, THE COURT THOUGHT IT EQUALLY CLEAR THAT "A
FURTHER AND MORE COMPREHENSIVE PURPOSE" CAME TO BE ENTERTAINED AND WAS
EMBODIED IN THE FINAL FORM OF THE ENACTMENT.  THE ACT EXTENDED TO
CONSPIRACIES IN THE SENSE OF THE LAW AND, CITING THE DECISIONS SHOWING
THE CONSTITUTIONAL SCOPE OF THE TERM "COMMERCE" AND ITS APPLICATION TO
TRANSPORTATION, THE COURT FOUND NO REASON FOR THINKING THAT THE TERM AS
USED IN THE SHERMAN ACT WAS "LESS COMPREHENSIVE."  ID., PP. 747-751. 

IT IS TRUE THAT WHEN THE DEBS CASE CAME TO THIS COURT ON A PETITION
FOR HABEAS CORPUS, THE DECISION SUSTAINING THE JURISDICTION OF THE
FEDERAL COURT TO ENTERTAIN THE SUIT BY THE UNITED STATES WAS PLACED
UPON THE GROUND THAT THE UNITED STATES, HAVING THE FULL ATTRIBUTES OF
SOVEREIGNTY WITHIN THE LIMITS OF ITS GRANTED POWERS, HAD AMONG THOSE
THE POWER OVER INTERSTATE COMMERCE AND OVER THE TRANSMISSION OF THE
MAILS AND WAS ENTITLED TO REMOVE EVERYTHING PUT UPON HIGHWAYS, NATURAL
OR ARTIFICIAL, TO OBSTRUCT THE PASSAGE OF INTERSTATE COMMERCE OR THE
CARRYING OF THE MAILS.  158 U.S. 564.  BUT WHILE THE COURT CHOSE THAT
BROAD GROUND FOR SUSTAINING JURISDICTION, IT WAS CAREFUL NOT TO
INTIMATE DISAGREEMENT WITH THE BASIS OF THE DECISION IN THE CIRCUIT
COURT AS TO THE APPLICATION OF THE SHERMAN ACT.  REFERRING TO THAT
DECISION, AND TO THE SHERMAN ACT, THE COURT SAID:  "WE ENTER INTO NO
EXAMINATION OF THE ACT OF JULY 2, 1890, C. 647, 26 STAT. 209, UPON
WHICH THE CIRCUIT COURT RELIED MAINLY TO SUSTAIN ITS JURISDICTION.  IT
MUST NOT BE UNDERSTOOD FROM THIS THAT WE DISSENT FROM THE CONCLUSIONS
OF THAT COURT IN REFERENCE TO THE SCOPE OF THE ACT, BUT SIMPLY THAT WE
PREFER TO REST OUR JUDGMENT ON THE BROADER GROUND WHICH HAS BEEN
DISCUSSED IN THIS OPINION, BELIEVING IT OF IMPORTANCE THAT THE
PRINCIPLES UNDERLYING IT SHOULD BE FULLY STATED AND AFFIRMED."  ID., P.
600. 

IN LOEWE V. LAWLOR, 208 U.S. 274, IN HOLDING THAT THE SHERMAN ACT
APPLIED TO LABOR UNIONS, THE COURT CITED IN SUPPORT OF ITS REASONING
THE CASE OF UNITED STATES V. WORKINGMEN'S AMALGAMATED COUNCIL, SUPRA,
QUOTING THE STATEMENT OF DISTRICT JUDGE BILLINGS IN DESCRIBING THE NEW
ORLEANS CONSPIRACY:  "ONE OF THE INTENDED RESULTS OF THEIR COMBINED
ACTION WAS THE FORCED STAGNATION OF ALL THE COMMERCE WHICH FLOWED
THROUGH NEW ORLEANS.  THIS INTENT AND COMBINED ACTION ARE NONE THE LESS
UNLAWFUL BECAUSE THEY INCLUDED IN THEIR SCOPE THE PARALYSIS OF ALL
OTHER BUSINESS WITHIN THE CITY AS WELL."  THAT "FORCED STAGNATION" WAS
THE OBSTRUCTION OF INTERSTATE TRANSPORTATION.  THE COURT IN THE LOEWE
CASE ALSO QUOTED IN FULL THE OBSERVATION IN THE DEBS CASE THAT THE
COURT SHOULD NOT BE UNDERSTOOD AS DISSENTING FROM THE CONCLUSIONS OF
THE CIRCUIT COURT AS TO THE SCOPE OF THE SHERMAN ACT.  AND THIS COURT,
STILL CONSIDERING THE APPLICATION OF THAT ACT TO LABOR UNIONS, THEN
QUOTED WHAT HAD BEEN SAID BY MR. JUSTICE BREWER IN THE DEBS CASE
(SUPRA, P. 581) WITH RESPECT TO OBSTRUCTIONS TO INTERSTATE COMMERCE, AS
FOLLOWS:  "IT IS CURIOUS TO NOTE THE FACT THAT IN A LARGE PROPORTION OF
THE CASES IN RESPECT TO INTERSTATE COMMERCE BROUGHT TO THIS COURT THE
QUESTION PRESENTED WAS OF THE VALIDITY OF STATE LEGISLATION IN ITS
BEARINGS UPON INTERSTATE COMMERCE, AND THE UNIFORM COURSE OF DECISION
HAS BEEN TO DECLARE THAT IT IS NOT WITHIN THE COMPETENCY OF A STATE TO
LEGISLATE IN SUCH A MANNER AS TO OBSTRUCT INTERSTATE COMMERCE.  IF A
STATE, WITH ITS RECOGNIZED POWERS OF SOVEREIGNTY, IS IMPOTENT TO
OBSTRUCT INTERSTATE COMMERCE, CAN IT BE THAT ANY MERE VOLUNTARY
ASSOCIATION OF INDIVIDUALS WITHIN THE LIMITS OF THAT STATE HAS A POWER
WHICH THE STATE ITSELF DOES NOT POSSESS?"  LOEWE V. LAWLOR, SUPRA, PP.
303, 304. 

IN THE LIGHT OF THESE DECISIONS OF THE CIRCUIT COURTS AND OF THE
SIGNIFICANT AND UNANIMOUS EXPRESSIONS BY THIS COURT, THE ARGUMENT SEEMS
TO BE UNTENABLE THAT THE SHERMAN ACT HAS BEEN REGARDED AS NOT EXTENDING
TO CONSPIRACIES TO OBSTRUCT OR PREVENT TRANSPORTATION IN INTERSTATE OR
FOREIGN COMMERCE.  ON THE CONTRARY, I THINK THAT HITHERTO IT HAS NOT
BEEN SUPPOSED THAT SUCH CONSPIRACIES LAY OUTSIDE THE ACT. 

WITH THIS BACKGROUND WE COME TO THE QUESTION WHETHER THE APPLICATION
OF THE SHERMAN ACT IN THE INSTANT CASE, WHICH WOULD OTHERWISE APPEAR TO
BE REQUIRED BY ITS COMPREHENSIVE TERMS, HAS BEEN PRECLUDED BY OUR
DECISIONS IN LABOR CASES.  THE VIEW IS ANNOUNCED THAT THE SHERMAN ACT
WAS NOT DIRECTED AT THOSE RESTRAINTS WHICH FALL SHORT OF ANY FORM OF
MARKET CONTROL OF A COMMODITY, SUCH AS TO MONOPOLIZE THE SUPPLY,
CONTROL ITS PRICE, OR DISCRIMINATE BETWEEN ITS WOULD-BE PURCHASERS. 
THAT IS, IN SHORT, THAT IT DOES NOT APPLY TO THE DIRECT AND INTENTIONAL
OBSTRUCTION OR PREVENTION OF THE SHIPMENT OR TRANSPORTATION OF GOODS TO
FILL THE ORDERS OF CUSTOMERS IN INTERSTATE COMMERCE SUCH AS WE HAVE
HERE.  I DO NOT READ OUR DECISIONS AS EITHER REQUIRING OR JUSTIFYING
SUCH A JUDICIAL LIMITATION OF THE PROVISIONS OF THE ACT.  RATHER, I
BELIEVE, THEY POINT TO A CONTRARY CONCLUSION. 

WHILE LOEWE V. LAWLOR, SUPRA, WAS THE CASE OF A BOYCOTT, THE
PRINCIPLE APPLIED WAS NOT LIMITED TO THAT SORT OF RESTRAINT BUT WAS AS
BROAD AS THE TERMS OF THE ACT.  THE COURT NOT ONLY DID NOT EXCLUDE
OBSTRUCTION OF INTERSTATE SHIPMENTS FROM BEING REGARDED AS A VIOLATION
OF THE STATUTE BUT DREW UPON THE DECISIONS WHICH HAD INVOLVED SUCH
OBSTRUCTION TO SUPPORT ITS GENERAL CONCLUSION.  THE COURT CONSIDERED
THE MEANS EMPLOYED IN THE LOEWE CASE AS CONSTITUTING A DIRECT
RESTRAINT, BUT PLAINLY THOSE MEANS WERE NOT DEEMED TO BE EXCLUSIVE OF
OTHER MEANS INCLUDING THOSE WHICH HAD BEEN EMPLOYED IN THE CASES WHICH
THE COURT CITED.  THE SAME MAY BE SAID OF OTHER BOYCOTT CASES.  SEE
DUPLEX PRINTING CO. V. DEERING, 254 U.S. 443; BEDFORD CUT STONE CO. V.
JOURNEYMEN STONE CUTTERS ASSN., 274 U.S. 37. 

IN GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 438, THE COURT,
REFERRING TO LOEWE V. LAWLOR, EMPHASIZED THE COMPREHENSIVENESS OF THE
SHERMAN ACT, SAYING: 

"IN LOEWE V. LAWLOR, 208 U.S. 274, THE STATUTE WAS HELD TO APPLY TO
ANY UNLAWFUL COMBINATION RESULTING IN RESTRAINT OF INTERSTATE
COMMERCE.  IN THAT CASE THE DAMAGES SUED FOR WERE OCCASIONED BY ACTS
WHICH, AMONG OTHER THINGS, DID INCLUDE THE CIRCULATION OF
ADVERTISEMENTS.  BUT THE PRINCIPLE ANNOUNCED BY THE COURT WAS GENERAL. 
IT COVERED ANY ILLEGAL MEANS BY WHICH INTERSTATE COMMERCE IS
RESTRAINED, WHETHER BY UNLAWFUL COMBINATIONS OF CAPITAL, OR UNLAWFUL
COMBINATIONS OF LABOR; AND WE THINK ALSO WHETHER THE RESTRAINT BE
OCCASIONED BY UNLAWFUL CONTRACTS, TRUSTS, POOLING ARRANGEMENTS,
BLACKLISTS, BOYCOTTS, COERCION, THREATS, INTIMIDATION, AND WHETHER
THESE BE MADE EFFECTIVE, IN WHOLE OR IN PART, BY ACTS, WORDS OR PRINTED
MATTER." 

MOREOVER, OF WHAT AVAIL IS IT TO INTERDICT BOYCOTTS OR TO ASSURE A
FREE MARKET, THAT IS, TO SECURE FREEDOM IN OBTAINING CUSTOMERS, AND YET
TO LEAVE UNPROTECTED THE RIGHT TO SHIP GOODS TO THE CUSTOMERS WHO ARE
THUS OBTAINED?  OF WHAT ADVANTAGE IS IT TO SOLICIT ORDERS FREELY IN
INTERSTATE COMMERCE IF THEY CANNOT BE FILLED?  THE FREEDOM OF
INTERSTATE MOVEMENT - IMMUNITY FROM CONSPIRACIES DIRECTLY TO RESTRAIN
SHIPMENT AND DELIVERY - LIES AT THE VERY BASE OF A FREE MARKET AND THE
UNTRAMMELED MAKING OF SALES. 

THE FIRST CORONADO COMPANY CASE (259 U.S. 344), CHIEFLY RELIED UPON,
DOES NOT SEEM TO AFFORD AN ADEQUATE BASIS FOR THE BROADER RULING NOW
MADE.  THAT DECISION WAS CENTERED UPON THE POINT THAT PRODUCTION, AS
SUCH,  - IN THAT CASE, COAL MINING,  - WAS NOT INTERSTATE COMMERCE, AND
THAT OBSTRUCTION TO COAL MINING THROUGH A STRIKE WAS NOT IN ITSELF A
DIRECT OBSTRUCTION TO INTERSTATE COMMERCE.  ID., PP. 407, 408.  AND IT
WAS DEEMED TO BE NECESSARY TO GO FURTHER AND FIND AN "INTENT TO INJURE,
OBSTRUCT OR RESTRAIN INTERSTATE COMMERCE" IN ORDER TO BRING THE CASE
WITHIN THE SHERMAN ACT.  THE EVIDENCE WAS FOUND INSUFFICIENT TO SHOW
SUCH AN INTENT.  THUS, THE COURT DID NOT DECIDE THAT A DIRECT AND
INTENTIONAL OBSTRUCTION OF INTERSTATE COMMERCE WAS NOT A VIOLATION OF
THE ACT.  IN THE SECOND CORONADO COMPANY CASE (268 U.S. 295), EVIDENCE
OF THAT INTENT WAS SUPPLIED AND THE COURT ACCORDINGLY SET ASIDE A
JUDGMENT IN FAVOR OF THE LOCAL UNION.  IT IS TRUE THAT THE COURT, IN
DEALING WITH THE PURPOSE OF THE LOCAL UNION, FOUND THAT IT WAS TO STOP
THE PRODUCTION OF NON-UNION COAL AND PREVENT ITS SHIPMENT TO MARKETS OF
OTHER STATES, WHERE BY COMPETITION IT WOULD TEND TO REDUCE THE PRICE OF
THE COMMODITY AND AFFECT INJURIOUSLY THE MAINTENANCE OF WAGES FOR UNION
LABOR IN COMPETING MINES.  BUT THE INTERSTATE COMMERCE THAT WAS THUS
FOUND TO BE DIRECTLY AND INTENTIONALLY OBSTRUCTED WAS THE SHIPMENT OF
THE COAL, AND WHETHER THE PURPOSE WAS TO MAINTAIN UNIONIZATION IN OTHER
STATES, OR WITHIN THE SAME STATE, WOULD NOT SEEM TO BE MATERIAL, SO
LONG AS THE INTERSTATE COMMERCE IN EITHER CASE IS DIRECTLY AND
INTENTIONALLY PREVENTED. 

THE COURT IN THE SECOND CORONADO COMPANY CASE NOT ONLY DECIDED THE
PARTICULAR CASE BUT LAID DOWN THE GENERAL PRINCIPLE AS FOLLOWS:  "BUT
WHEN THE INTENT OF THOSE UNLAWFULLY PREVENTING THE MANUFACTURE OR
PRODUCTION IS SHOWN TO BE TO RESTRAIN OR CONTROL THE SUPPLY ENTERING
AND MOVING IN INTERSTATE COMMERCE, OR THE PRICE OF IT IN INTERSTATE
MARKETS, THEIR ACTION IS A DIRECT VIOLATION OF THE ANTI-TRUST ACT." 
ID., P. 310.  THE USE OF THE DISJUNCTIVE IS SIGNIFICANT. 

THE RULING OF THE FIRST CORONADO COMPANY CASE AS TO A MERE STOPPAGE
OF PRODUCTION, IN THE ABSENCE OF PROOF OF A DIRECT AND INTENTIONAL
OBSTRUCTION OF INTERSTATE COMMERCE, WAS REPEATED IN THE CASE OF UNITED
LEATHER WORKERS V. HERKERT CO., 265 U.S. 457.  BUT THE DICTUM FROM THE
OPINION IN THAT CASE, WHICH THE COURT QUOTES IN ITS PRESENT OPINION,
MUST BE READ IN CONNECTION WITH WHAT IMMEDIATELY FOLLOWS WHERE THE
COURT POINTED OUT THAT THERE WAS NO DIRECT INTERFERENCE BY THE
DEFENDANTS IN THE HERKERT CASE "WITH THE INTERSTATE TRANSPORTATION" OF
THE GOODS OF THE PLAINTIFF COMPANY.  ANY DOUBT AS TO THE TRUE IMPORT OF
THE CORONADO AND HERKERT CASES IS SET AT REST BY THIS COURT'S
CONSTRUCTION OF THESE DECISIONS IN THE CASE OF BEDFORD CUT STONE CO. V.
JOURNEYMEN STONE CUTTERS ASSN., SUPRA.  THERE THE COURT EMPHASIZED THE
POINT AS TO THE ABSENCE OF DIRECT INTERFERENCE WITH INTERSTATE
TRANSPORTATION IN THE EARLIER CASES, SAYING (274 U.S. PP. 47, 48): 

"THE CASE, THEREFORE, IS CONTROLLED, NOT BY UNITED MINE WORKERS V.
CORONADO CO., SUPRA, (259 U.S. 344) AND UNITED LEATHER WORKERS V.
HERKERT, 265 U.S. 457, AS RESPONDENTS CONTEND, BUT BY OTHERS PRESENTLY
TO BE DISCUSSED.  IN THE UNITED LEATHER WORKERS CASE, IT APPEARED THAT
THE STRIKES WERE LEVELED ONLY AGAINST PRODUCTION, AND THAT THE STRIKERS
(P. 471) 'DID NOTHING WHICH IN ANY WAY DIRECTLY INTERFERED WITH THE
INTERSTATE TRANSPORTATION OR SALES OF THE COMPLAINANTS' PRODUCT'; AND
THE DECISION RESTS UPON THE GROUND THAT THERE WAS AN ENTIRE ABSENCE OF
EVIDENCE OR CIRCUMSTANCES TO SHOW THAT THE DEFENDANTS, IN THIS
CONSPIRACY TO COERCE COMPLAINANTS, WERE DIRECTING THEIR SCHEME AGAINST
INTERSTATE COMMERCE.  UNITED MINE WORKERS V. CORONADO CO., SUPRA, PP.
408-409, IS TO THE SAME EFFECT." 

AND THE GENERAL PRINCIPLE SET FORTH IN THE SECOND CORONADO COMPANY
CASE, AS ABOVE QUOTED, WAS REITERATED. 

IN LEVERING & GARRIGUES CO. V. MORRIN, 289 U.S. 103, 107, THERE WAS
NO SHOWING OF A DIRECT OR INTENTIONAL RESTRAINT OF INTERSTATE
COMMERCE.  BUT IN LOCAL 167 V. UNITED STATES, 291 U.S. 293, THE
EVIDENCE SHOWED A CONSPIRACY "TO BURDEN THE FREE MOVEMENT OF LIVE
POULTRY INTO THE METROPOLITAN AREA" IN NEW YORK.  THE COURT SAID:  "THE
INTERFERENCE BY APPELLANTS AND OTHERS WITH THE UNLOADING, THE
TRANSPORTATION, THE SALES BY MARKETMEN TO RETAILERS, THE PRICES CHARGED
AND THE AMOUNT OF PROFITS EXACTED OPERATES SUBSTANTIALLY AND DIRECTLY
TO RESTRAIN AND BURDEN THE UNTRAMMELED SHIPMENT AND MOVEMENT OF THE
POULTRY WHILE UNQUESTIONABLY IT IS IN INTERSTATE COMMERCE."  ID., P.
297.  THUS IT WAS "THE UNTRAMMELED SHIPMENT AND MOVEMENT" WHICH, WHEN
FOUND TO BE DIRECTLY AND INTENTIONALLY RESTRAINED, WAS HELD TO
CONSTITUTE VIOLATION OF THE SHERMAN ACT.    SUPPOSE, FOR EXAMPLE, THERE
SHOULD BE A CONSPIRACY AMONG THE TEAMSTERS AND TRUCK DRIVERS IN NEW
YORK CITY TO PREVENT THE HAULING OF GOODS AND THEIR TRANSPORTATION IN
INTERSTATE COMMERCE, CAN IT BE DOUBTED THAT THE SHERMAN ACT WOULD
APPLY?  WOULD IT NOT BE ESSENTIALLY THE SAME SORT OF OBSTRUCTION OF
INTERSTATE COMMERCE AS WAS FOUND TO HAVE BEEN EFFECTED IN UNITED STATES
V. WORKINGMEN'S AMALGAMATED COUNCIL, SUPRA, WHERE THE TRANSPORTATION OF
GOODS IN NEW ORLEANS IN INTERSTATE COMMERCE WAS TIED UP? THERE THE
DEFENDANTS PARALYZED LOCAL BUSINESS AND THEIR OBJECT WAS TO BENEFIT
THEMSELVES IN THEIR DEALINGS WITH THEIR EMPLOYERS, BUT TO ATTAIN THAT
END THEY DIRECTLY AND INTENTIONALLY OBSTRUCTED THE MOVEMENT OF GOODS IN
INTERSTATE COMMERCE AND THUS CAME WITHIN THE INTERDICTION OF THE ACT. 
THE FACT THAT THE DEFENDANTS IN THE INSTANT CASE ARE NOT TEAMSTERS CAN
MAKE NO DIFFERENCE AS IT IS THE DIRECT AND INTENTIONAL PREVENTION OF
INTERSTATE COMMERCE THAT TURNS THE SCALES. 

OUR DECISIONS HAVE SAID MUCH OF THE "FREE FLOW" OF INTERSTATE
COMMERCE.  WHAT IS THIS METAPHOR OF AN INTERSTATE STREAM PROTECTED IN
ITS FLOW BY THE SHERMAN ACT BUT A STRIKING WAY OF DESCRIBING THE
MOVEMENT OF GOODS BY UNTRAMMELED SHIPMENTS IN PURSUANCE OF FREELY
NEGOTIATED SALES? 

IT WAS TO PROTECT THIS FREE MOVEMENT FROM BEING OBSTRUCTED BY
INDUSTRIAL STRIFE THROUGH THE DENIAL OF COLLECTIVE BARGAINING THAT
CONGRESS PASSED THE NATIONAL LABOR RELATIONS ACT.  IN SUSTAINING THE
VALIDITY OF THAT ACT WE REFERRED TO OUR DECISIONS WITH RESPECT TO THE
CONDUCT OF EMPLOYEES ENGAGED IN PRODUCTION, SUMMING UP THE MATTER IN
THIS WAY:  "AND IN THE SECOND CORONADO CASE THE COURT RULED THAT WHILE
THE MERE REDUCTION IN THE SUPPLY OF AN ARTICLE TO BE SHIPPED IN
INTERSTATE COMMERCE BY THE ILLEGAL OR TORTIOUS PREVENTION OF ITS
MANUFACTURE OR PRODUCTION IS ORDINARILY AN INDIRECT AND REMOTE
OBSTRUCTION TO THAT COMMERCE, NEVERTHELESS WHEN THE 'INTENT OF THOSE
UNLAWFULLY PREVENTING THE MANUFACTURE OR PRODUCTION IS SHOWN TO BE TO
RESTRAIN OR CONTROL THE SUPPLY ENTERING AND MOVING IN INTERSTATE
COMMERCE, OR THE PRICE OF IT IN INTERSTATE MARKETS, THEIR ACTION IS A
DIRECT VIOLATION OF THE (SHERMAN) ANTI-TRUST ACT.'"  NATIONAL LABOR
RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 40.  IT IS
TRUE THAT IN THAT CASE WE WERE CONSIDERING THE POWER OF CONGRESS OVER
INTERSTATE COMMERCE, BUT WE WERE POINTING TO THE EXERCISE OF THAT POWER
IN THE SHERMAN ACT, WITH RESPECT TO WHICH WE HAD PREVIOUSLY SAID "THAT
CONGRESS MEANT TO DEAL COMPREHENSIVELY AND EFFECTIVELY WITH THE EVILS
RESULTING FROM CONTRACTS, COMBINATIONS AND CONSPIRACIES IN RESTRAINT OF
TRADE, AND TO THAT END TO EXERCISE ALL THE POWER IT POSSESSED." 
ATLANTIC CLEANERS & DYERS V. UNITED STATES, 286 U.S. 427, 435.  THAT
POWER, AND ITS EXERCISE, SHOULD NOT BE DEEMED TO FALL SHORT OF THE
PROTECTION OF THE INTERSTATE SHIPMENT OF GOODS FROM CONSPIRACIES TO
IMPOSE A DIRECT RESTRAINT UPON IT. 

THE ATTEMPT IN THE COURT BELOW TO DISTINGUISH BETWEEN THE USE OF THE
WORD "AFFECT" IN THE NATIONAL LABOR RELATIONS ACT AND THE WORD
"RESTRAINT" IN THE SHERMAN ACT IS INEFFECTUAL AS IT FAILS TO TAKE NOTE
OF THE FACT THAT THE WORD "AFFECT" WAS CONSTRUED AS PURPORTING "TO
REACH ONLY WHAT MAY BE DEEMED TO BURDEN OR OBSTRUCT" INTERSTATE OR
FOREIGN COMMERCE, AND HENCE UNDER THE FAMILIAR PRINCIPLE "THAT ACTS
WHICH DIRECTLY BURDEN OR OBSTRUCT INTERSTATE OR FOREIGN COMMERCE, OR
ITS FREE FLOW, ARE WITHIN THE REACH OF THE CONGRESSIONAL POWER," THE
STATUTE WAS UPHELD.  NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN
STEEL CORP., SUPRA, PP. 31, 32. 

THE EVIL SOUGHT TO BE REMEDIED BY THE NATIONAL LABOR RELATIONS ACT
WAS THE INTERRUPTION OF INTERSTATE COMMERCE PRIMARILY BY THE PREVENTION
OF THE FREE SHIPMENT AND DELIVERY OF GOODS IN THAT COMMERCE, AND HENCE
IT HAS BEEN APPLIED TO THOSE CASES WHERE INDUSTRIES ARE OF SUCH A
CHARACTER THAT THE PROHIBITED UNFAIR LABOR PRACTICES WOULD NATURALLY
HAVE THE EFFECT OF INTERRUPTING THE MOVEMENT OF COMMODITIES BETWEEN THE
STATES.  SEE, E.G., NATIONAL LABOR RELATIONS BOARD V. FRUEHAUF, 301
U.S. 49, 53, 54; NATIONAL LABOR RELATIONS BOARD V. FRIEDMAN-HARRY MARKS
CO., 301 U.S. 58, 72, 73; SANTA CRUZ FRUIT PACKING CO. V. NATIONAL
LABOR RELATIONS BOARD, 303 U.S. 453, 468; CONSOLIDATED EDISON CO. V.
NATIONAL LABOR RELATIONS BOARD, 305 U.S. 197, 221.  IN NATIONAL LABOR
RELATIONS BOARD V. FAINBLATT, SUPRA, PP. 605, 606, WE FOUND THAT
"INTERSTATE COMMERCE WAS INVOLVED IN THE TRANSPORTATION OF THE
MATERIALS TO BE PROCESSED ACROSS STATE LINES TO THE FACTORY OF
RESPONDENTS AND IN THE TRANSPORTATION OF THE FINISHED PRODUCT TO POINTS
OUTSIDE THE STATE FOR DISTRIBUTION TO PURCHASERS AND ULTIMATE
CONSUMERS," AND THAT "TRANSPORTATION ALONE ACROSS STATE LINES IS
COMMERCE WITHIN THE CONSTITUTIONAL CONTROL OF THE NATIONAL GOVERNMENT";
AND, HAVING SAID THAT, WE POINTED TO THE PROTECTIVE EXERCISE OF
CONGRESSIONAL POWER UNDER THE SHERMAN ACT AS NOT IN ANY WAY RESTRICTED
BECAUSE THE VOLUME OF THE COMMERCE INVOLVED IN SUCH TRANSPORTATION WAS
SMALL.  ID. 

IT WOULD INDEED BE ANOMALOUS IF, WHILE EMPLOYERS ARE BOUND BY THE
LABOR ACT BECAUSE THEIR UNFAIR LABOR PRACTICES MAY LEAD TO CONDUCT
WHICH WOULD PREVENT THE SHIPMENT OF THEIR GOODS IN INTERSTATE COMMERCE,
AT THE SAME TIME THE DIRECT AND INTENTIONAL OBSTRUCTION OR PREVENTION
OF SUCH SHIPMENTS BY THE EMPLOYEES WERE NOT DEEMED TO BE A RESTRAINT OF
INTERSTATE COMMERCE UNDER THE BROAD TERMS OF THE SHERMAN ACT. 

THIS COURT HAS NEVER HERETOFORE DECIDED THAT A DIRECT AND INTENTIONAL
OBSTRUCTION OR PREVENTION OF THE SHIPMENT OF GOODS IN INTERSTATE
COMMERCE WAS NOT A VIOLATION OF THE SHERMAN ACT.  IN MY OPINION IT
SHOULD NOT SO DECIDE NOW.  IT FINDS NO WARRANT FOR SUCH A DECISION IN
THE TERMS OF THE STATUTE.  I AM UNABLE TO FIND ANY COMPULSION OF
JUDICIAL DECISION REQUIRING THE COURT SO TO LIMIT THOSE TERMS. 
RESTRAINTS MAY BE OF VARIOUS SORTS.  SOME MAY BE IMPOSED BY EMPLOYERS,
OTHERS BY EMPLOYEES.  BUT WHEN THEY ARE FOUND TO BE UNREASONABLE AND
DIRECTLY IMPOSED UPON INTERSTATE COMMERCE, BOTH EMPLOYERS AND EMPLOYEES
ARE SUBJECT TO THE SANCTIONS OF THE ACT. 

IT IS SAID THAT SUCH A VIEW WOULD BRING PRACTICALLY EVERY STRIKE IN
MODERN INDUSTRY WITHIN THE APPLICATION OF THE STATUTE.  I DO NOT
AGREE.  THE RIGHT TO QUIT WORK, THE RIGHT PEACEABLY TO PERSUADE OTHERS
TO QUIT WORK, THE RIGHT TO PROCEED BY LAWFUL MEASURES WITHIN THE
CONTEMPLATION OF THE CLAYTON ACT TO ATTAIN THE LEGITIMATE OBJECTS OF
LABOR ORGANIZATION, IS TO MY MIND QUITE A DIFFERENT MATTER FROM A
CONSPIRACY DIRECTLY AND INTENTIONALLY TO PREVENT THE SHIPMENT OF GOODS
IN INTERSTATE COMMERCE EITHER BY THEIR ILLEGAL SEIZURE FOR THAT
PURPOSE, OR BY THE DIRECT AND INTENTIONAL OBSTRUCTION OF THEIR
TRANSPORTATION OR BY BLOCKING THE HIGHWAYS OF INTERSTATE INTERCOURSE. 

ONCE IT IS DECIDED, AS THIS COURT DOES DECIDE, THAT THE SHERMAN ACT
DOES NOT EXCEPT LABOR UNIONS FROM ITS PURVIEW,  - ONCE IT IS DECIDED,
AS THIS COURT DOES DECIDE, THAT THE CONDUCT HERE SHOWN IS NOT WITHIN
THE IMMUNITY CONFERRED BY THE CLAYTON ACT,  - THE COURT, AS IT SEEMS TO
ME, HAS NO OPTION BUT TO APPLY THE SHERMAN ACT IN ACCORDANCE WITH ITS
EXPRESS PROVISIONS. 

FN1  15 U.S.C. 17; 29 U.S.C. 52. 

FN2  15 U.S.C. 1. 

FN3  STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; UNITED STATES V.
AMERICAN TOBACCO CO., 221 U.S. 106. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS JOIN IN THIS OPINION. 

..END :














WHITE V. TEXAS, 310 U.S. 530 


NO. 87.  ARGUED MAY 20, 1940.  - DECIDED MAY 27, 1940.  - PETITION
DENIED. 


1.  USE IN A STATE COURT OF A COERCED CONFESSION IN PROCURING A
CONVICTION OF A CAPITAL CRIME VIOLATES THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  P. 531. 

2.  THE EVIDENCE SHOWS THAT THE CONFESSION USED IN THE TRIAL OF THIS
CASE WAS COERCED.  P. 532. 

WHITE V. TEXAS. 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS. 

ON A PETITION BY THE STATE OF TEXAS FOR THE REHEARING OF A CASE
ADJUDGED MARCH 25, 1940, 309 U.S. 631, REVERSING A DEATH SENTENCE UPON
A CONVICTION OF RAPE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF RAPE AND SENTENCED TO DEATH IN THE
DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS.  THE STATE'S APPELLATE
CRIMINAL COURT OF LAST RESORT AFFIRMED AND DENIED REHEARING.  FN1  WE
DECLINED TO GRANT CERTIORARI TO REVIEW THE STATE COURT'S ACTION, 308
U.S. 608.  FEBRUARY 29, 1940, PETITIONER SOUGHT REHEARING OF HIS
PETITION FOR CERTIORARI, ALLEGING THAT HIS CONVICTION AND SENTENCE
RESULTED FROM PROCEEDINGS IN WHICH THE STATE HAD UTILIZED AN ALLEGED
CONFESSION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  MARCH 25, 1940, WE GRANTED CERTIORARI, AND REVERSED THE
JUDGMENT OF THE STATE COURT, 309 U.S. 631, UPON AUTHORITY OF CHAMBERS
V. FLORIDA, 309 U.S. 227, AND CANTY V. ALABAMA, 309 U.S. 629.  THE CASE
IS BEFORE US NOW ON THE STATE'S PETITION FOR REHEARING.  FN2 

FROM THE FIRST OFFER OF THE ALLEGED CONFESSION IN EVIDENCE AT THE
TRIAL, PETITIONER HAS CHALLENGED THE STATE'S RIGHT TO UTILIZE IT,
CONSISTENTLY WITH RIGHTS GUARANTEED HIM BY THE FEDERAL CONSTITUTION. 
FN3  IN AFFIRMING THE CONVICTION AND SENTENCE OF DEATH, THE COURT BELOW
NECESSARILY DETERMINED THAT USE OF THE CONFESSION DID NOT CONSTITUTE A
DENIAL OF THAT DUE PROCESS WHICH THE FOURTEENTH AMENDMENT GUARANTEES. 

THE STATE SUGGESTS THAT THERE IS EVIDENCE THAT PETITIONER DENIED EVER
HAVING MADE OR SIGNED THE CONFESSION WHICH PURPORTED TO BE SIGNED BY
HIS MARK.  THEREFORE, IT INSISTS THAT PETITIONER IS BARRED FROM URGING
THAT THE PROSECUTION'S USE OF THE CONFESSION COULD HAVE DEPRIVED HIM OF
DUE PROCESS AT HIS TRIAL.  BUT REGARDLESS OF PETITIONER'S TESTIMONY ON
THIS QUESTION, THE STATE INSISTED AND OFFERED TESTIMONY TO ESTABLISH
THAT THE CONFESSION WAS SIGNED BY HIM, AND UPON THIS EVIDENCE THE
CONFESSION WAS SUBMITTED TO THE JURY FOR THE PURPOSE OF OBTAINING HIS
CONVICTION.  SINCE, THEREFORE, THE CONFESSION WAS PRESENTED BY THE
STATE TO THE JURY AS THAT OF PETITIONER, WE MUST DETERMINE WHETHER THE
RECORD SHOWS THAT, IF SIGNED AT ALL, THE CONFESSION WAS OBTAINED AND
USED IN SUCH MANNER THAT PETITIONER'S TRIAL FELL SHORT OF THAT
PROCEDURAL DUE PROCESS GUARANTEED BY THE CONSTITUTION. 

PETITIONER IS AN ILLITERATE FARMHAND WHO WAS ENGAGED, AT THE TIME OF
HIS ARREST, UPON A PLANTATION ABOUT TEN MILES FROM LIVINGSTON, TEXAS. 
ON THE DAY FOLLOWING THE CRIME WITH WHICH HE HAS BEEN CHARGED, HE WAS
CALLED FROM THE FIELD IN WHICH HE WAS PICKING COTTON AND WAS TAKEN TO
THE HOUSE OF THE BROTHER-IN-LAW OF THE PROSECUTRIX, THE VICTIM OF THE
CRIME, WHERE FIFTEEN OR SIXTEEN NEGROES OF THE VICINITY WERE AT THE
TIME IN CUSTODY WITHOUT WARRANTS OR THE FILING OF CHARGES.  TAKEN TO
THE COUNTY COURT HOUSE, AND THENCE TO THE POLK COUNTY JAIL, PETITIONER
WAS KEPT THERE SIX OR SEVEN DAYS.  ACCORDING TO HIS TESTIMONY, ARMED
TEXAS RANGERS ON SEVERAL SUCCESSIVE NIGHTS TOOK HIM HANDCUFFED FROM THE
JAIL "UP IN THE WOODS SOMEWHERE," WHIPPED HIM, ASKED HIM EACH TIME
ABOUT A CONFESSION AND WARNED HIM NOT TO SPEAK TO ANY ONE ABOUT THE
NIGHTLY TRIPS TO THE WOODS.  DURING THE PERIOD OF HIS ARREST UP TO AND
INCLUDING THE SIGNING OF THE ALLEGED CONFESSION, PETITIONER HAD NO
LAWYER, NO CHARGES WERE FILED AGAINST HIM AND HE WAS OUT OF TOUCH WITH
FRIENDS OR RELATIVES. 

THERE WERE DENIALS THAT PETITIONER WAS EVER PHYSICALLY MISTREATED OR
ABUSED.  BUT THE RANGERS AND A LOCAL PEACE OFFICER, IDENTIFIED BY
PETITIONER AS THE OFFICERS WHO TOOK HIM ON THE NIGHT TRIPS TO THE WOODS
AND THERE WHIPPED HIM, DID NOT SPECIFICALLY DENY THAT HE WAS TAKEN OUT
OF JAIL, AT NIGHT, AND INTERROGATED IN THE WOODS.  THIS LOCAL PEACE
OFFICER WASN'T SURE "HOW MANY TIMES" THE PRISONER WAS REMOVED FROM
JAIL, AND ONE RANGER RE-STATED HIS TESTIMONY GIVEN AT THE FIRST TRIAL
THAT HE "TOOK HIM OUT SO MANY TIMES" THE EXACT NUMBER COULD NOT BE
RECALLED.  THE PRISONER WAS TAKEN OUT OF JAIL, DRIVEN "OUT ON THE ROAD"
AND THEN "OUT OFF OF THE ROAD," AS THIS RANGER TESTIFIED, IN ORDER THAT
THE OFFICERS COULD TALK TO HIM AND BECAUSE THE JAIL WAS CROWDED.  IN
JAIL, THE SHERIFF PUT PETITIONER BY HIMSELF AND "KEPT WATCHING HIM AND
TALKING TO HIM." 

BEFORE CARRYING PETITIONER TO BEAUMONT, WHERE THE ALLEGED CONFESSION
WAS TAKEN, THE SHERIFF TALKED ABOUT AN HOUR AND A HALF WITH HIM.  THE
RANGERS WHO HAD BEEN TAKING PETITIONER TO THE WOODS AT NIGHT KNEW THE
COUNTY ATTORNEY WAS GOING TO BEAUMONT TO GET A STATEMENT; THEY, TOO,
WENT THERE AND WERE IN AND OUT OF THE EIGHTH FLOOR ROOM OF THE JAIL IN
BEAUMONT, WITH THE ELEVATOR LOCKED, WHERE PETITIONER WAS INTERROGATED
FROM APPROXIMATELY 11:00 P.M. TO 3:00 OR 3:30 A.M.  THE ALLEGED
CONFESSION WAS REDUCED TO WRITING AFTER 2 A.M.  IMMEDIATELY BEFORE IT
WAS TAKEN DOWN, THE PRISONER WAS REPEATEDLY ASKED BY THE PRIVATE
PROSECUTOR WHETHER HE WAS READY TO CONFESS.  PETITIONER THEN BEGAN TO
CRY, AND THE TYPING OF THE CONFESSION, UPON WHICH THE STATE'S CASE
SUBSTANTIALLY RESTED, WAS COMPLETED BY THE COUNTY ATTORNEY ABOUT
DAYLIGHT.  TWO CITIZENS OF BEAUMONT SIGNED IT AS WITNESSES. 

"DUE PROCESS OF LAW, PRESERVED FOR ALL BY OUR CONSTITUTION, COMMANDS
THAT NO SUCH PRACTICE AS THAT DISCLOSED BY THIS RECORD SHALL SEND ANY
ACCUSED TO HIS DEATH."  FN4 

THE STATE'S PETITION FOR REHEARING IS DENIED. 

FN1  139 TEX. CRIM. REP. -; 128 S.W.2D 51.  A PRIOR CONVICTION WAS
REVERSED.  135 TEX. CRIM. REP. 210; 117 S.W.2D 450. 

FN2  PETITIONER'S ORIGINAL PETITION FOR CERTIORARI WAS DENIED
NOVEMBER 13, 1939, 308 U.S. 608.  ON FEBRUARY 29, 1940, AFTER OUR
DECISION IN THE CHAMBERS CASE, PETITIONER FILED A PETITION FOR
REHEARING OF HIS ORIGINAL PETITION, ASSIGNING THE ADDITIONAL GROUND
THAT HIS CONVICTION WAS ATTRIBUTABLE TO THE USE BY THE STATE OF A
CONFESSION OBTAINED BY COERCION AND INTIMIDATION.  MARCH 2, 1940, THE
ATTORNEY GENERAL OF TEXAS WAS NOTIFIED OF THE PENDENCY OF THE PETITION
FOR REHEARING AND HE HAS INFORMED THE CLERK OF THIS COURT THAT HE
NOTIFIED THE STATE'S APPELLATE CRIMINAL ATTORNEY.  INFORMATION OF
PENDENCY OF THE PETITION FOR REHEARING OF THE PETITION FOR CERTIORARI
WAS ALSO COMMUNICATED TO THE MONTGOMERY COUNTY DISTRICT COURT CLERK,
THE DISTRICT ATTORNEY, THE GOVERNOR AND THE STATE BOARD OF PARDONS AND
PAROLES.  THE STATE'S PETITION FOR REHEARING OF OUR JUDGMENT OF MARCH
25, 1940, REVERSING THE STATE COURT'S JUDGMENT, ALLEGED THAT THE STATE
HAD NOT RECEIVED ADEQUATE NOTICE AND SOUGHT FURTHER OPPORTUNITY TO
PRESENT THE STATE'S VIEWS.  WE THEREFORE HEARD ORAL ARGUMENTS UPON THE
STATE'S PETITION FOR REHEARING. 

FN3  IN ADDITION TO ALLEGING THAT THE CONFESSION RELIED ON BY THE
STATE WAS COERCED AND INVOLUNTARY, BOTH PETITIONER'S AMENDED MOTION FOR
A NEW TRIAL AND HIS BILL OF EXCEPTIONS TO THE COURT BELOW SET OUT THAT
HE "WAS NOT PERMITTED TO TALK TO AN ATTORNEY TO ADVISE HIM BUT WAS KEPT
INCOMMUNICADO, WAS NOT PERMITTED TO USE A TELEPHONE, WAS KEPT IN THE
WOODS BY RANGERS A GREAT PORTION OF THE TIME AND WAS DENIED EVERY RIGHT
THAT EVEN THIS DEFENDANT IS ENTITLED TO UNDER THE CONSTITUTION OF TEXAS
AND THE CONSTITUTION OF THE UNITED STATES." 

FN4  CHAMBERS V. FLORIDA, 309 U.S. 227, 241; CANTY V. ALABAMA, 309
U.S. 629. 
..END :






















U.S. V. AMER. TRUCKING ASS'NS, 310 U.S. 534 


NO. 713.  ARGUED APRIL 26, 1940.  - DECIDED MAY 27, 1940.  - 31 F.SUPP. 
35, REVERSED. 


1.  THE POWER OF THE INTERSTATE COMMERCE COMMISSION UNDER THE MOTOR
CARRIER ACT, 1935, SEC. 204(A), TO ESTABLISH REASONABLE REQUIREMENTS
WITH RESPECT TO THE QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF
EMPLOYEES OF MOTOR CARRIERS, IS CONFINED TO THOSE EMPLOYEES WHOSE
DUTIES AFFECT SAFETY OF OPERATION.  PP. 546, 553. 

2.  WHEN ACCEPTANCE OF THE LITERAL MEANING OF WORDS IN A STATUTE
LEADS TO RESULTS WHICH ARE ABSURD OR FUTILE OR PLAINLY AT VARIANCE WITH
THE POLICY OF THE LEGISLATION, THE LEGISLATIVE PURPOSE WILL BE
FOLLOWED.  P. 543. 

3.  EVEN THOUGH, SUPERFICIALLY, THE MEANING OF STATUTORY WORDS
APPEARS PLAIN, AIDS TO THEIR INTERPRETATION MAY BE RESORTED TO IN
PURSUIT OF THE PURPOSE.  P. 543. 

4.  TO ACCEPT LITERALLY THE WORD "EMPLOYEE" IN SEC. 204(A) OF THE
MOTOR CARRIER ACT, WOULD PLACE UPON THE INTERSTATE COMMERCE COMMISSION
THE FUNCTION OF REGULATING THE QUALIFICATIONS OF LARGE NUMBERS OF
EMPLOYEES WHOSE DUTIES DO NOT AFFECT SAFETY OF OPERATION, CONTRARY TO
THE SETTLED PRACTICE OF CONGRESS, EVINCED IN OTHER ACTS, WITH RESPECT
TO REGULATION OF HOURS AND QUALIFICATIONS OF TRANSPORTATION EMPLOYEES,
AND CONTRARY TO THE POLICY OF MOST OF THE STATES, AS SHOWN BY ACTS IN
FORCE WHEN THE FEDERAL ACT WAS PASSED.  P. 544. 

5.  INDICATION OF ANY INTENTION OF CONGRESS, BY SEC. 204(A), TO GRANT
THE INTERSTATE COMMERCE COMMISSION OTHER THAN THE CUSTOMARY POWER TO
SECURE SAFETY, IS ABSENT FROM THE LEGISLATIVE HISTORY OF THE MOTOR
CARRIER ACT.  P. 546. 

6.  THE CONSTRUCTION OF SEC. 204(A) BY THE INTERSTATE COMMERCE
COMMISSION AND BY THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF
LABOR, AS RELATING SOLELY TO SAFETY OF OPERATION, IS OF GREAT WEIGHT. 
P. 549. 

UNITED STATES ET AL. V. AMERICAN TRUCKING ASSOCIATIONS, INC. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES COMMANDING
THE INTERSTATE COMMERCE COMMISSION TO SET ASIDE AN ORDER BY WHICH IT
DECLINED, FOR WANT OF JURISDICTION, TO DETERMINE QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE FOR ALL EMPLOYEES OF CONTRACT AND MOTOR
CARRIERS SUBJECT TO THE MOTOR CARRIER ACT, AND COMMANDING IT TO TAKE
JURISDICTION AND PROCEED WITH SUCH DETERMINATION.  THE SUIT WAS BROUGHT
AGAINST THE UNITED STATES AND THE COMMISSION, UNDER SEC. 205(H) OF THE
ACT, BY THE ABOVENAMED TRUCKING ASSOCIATIONS AND FIVE COMMON CARRIERS
BY MOTOR.  THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE
DEPARTMENT OF LABOR INTERVENED ON THE SIDE OF THE DEFENSE. 

ONE OF THE PRIMARY PURPOSES OF THE ACT WAS THE PROMOTION AND
ENHANCEMENT OF SAFETY OF OPERATION OF ALL MOTOR VEHICLES OPERATED BY
MOTOR CARRIERS ENGAGED IN INTERSTATE AND FOREIGN COMMERCE.  IT WAS
SOLELY TO THIS END THAT CONGRESS EMPOWERED THE INTERSTATE COMMERCE
COMMISSION TO PRESCRIBE QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR
EMPLOYEES OF MOTOR CARRIERS. 

THE INTENT IS SHOWN BY THE LEGISLATIVE HISTORY OF SEC. 204(A)(1) AND
(2), AND IS FURTHER REVEALED BY ANALYSIS OF OTHER PROVISIONS OF THE
ACT.  THESE POINT TO "SAFETY OF OPERATION" AS THE SOLE CONGRESSIONAL
PURPOSE.  FEDERAL STATUTES REGULATING HOURS OF SERVICE IN OTHER FIELDS
OF TRANSPORTATION, AND STATE MOTOR CARRIER STATUTES, IN THE LIGHT OF
WHICH THE MEANING OF THE ACT MUST BE SOUGHT, INDICATE A LEGISLATIVE
POLICY DIRECTED TOWARD THE END OF "SAFETY OF OPERATION."  FINALLY, THE
FACT THAT THE REGULATORY POWER WAS CONFERRED BY THE ACT UPON AN AGENCY
EXPERT IN TRANSPORTATION MATTERS ALONE, UNATTENDED BY THE LEGISLATIVE
STANDARDS TRADITIONALLY GUIDING THE REGULATION OF HOURS OF WORK,
SUPPORTS THE VIEW THAT CONGRESS INTENDED TO LIMIT THE COMMISSION'S
POWER TO THOSE EMPLOYEES WHOSE ACTIVITIES AFFECT SAFETY OF OPERATION. 

THE PURPOSES AND THE LEGISLATIVE HISTORY OF THE FAIR LABOR STANDARDS
ACT AFFORD ADDITIONAL SUPPORT FOR THE VIEW THAT SEC. 204(A)(1) AND (2)
OF THE ACT IS RESTRICTED TO THOSE EMPLOYEES ENGAGED IN ACTIVITIES
AFFECTING SAFETY OF OPERATION.  THE EXEMPTION PROVIDED BY SEC. 13(B)(1)
OF THE FAIR LABOR STANDARDS ACT WITH RESPECT TO THOSE EMPLOYEES AS TO
WHOM THE INTERSTATE COMMERCE COMMISSION HAS POWER TO PRESCRIBE
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE WAS ENACTED UPON THE
ASSUMPTION THAT THE COMMISSION'S POWER WAS LIMITED TO "SAFETY"
EMPLOYEES.  EMPLOYEES OF MOTOR CARRIERS WHOSE DUTIES DO NOT AFFECT
SAFETY OF OPERATION ARE ENGAGED IN PURSUITS SIMILAR TO THOSE FOLLOWED
BY MILLIONS OF OTHER EMPLOYEES WITHIN THE SCOPE OF THE FAIR LABOR
STANDARDS ACT, AND, CONSEQUENTLY, MORE PROPERLY FALL WITHIN THE SCOPE
OF THAT STATUTE THAN OF THE MOTOR CARRIER ACT. 

THE ACT CONTAINS A BROAD DECLARATION OF POLICY, AND A COMPREHENSIVE
PLAN FOR THE REGULATION OF COMMON AND CONTRACT CARRIERS BY MOTOR
VEHICLE IN INTERSTATE COMMERCE.  SECTION 202 DECLARES THE CONGRESSIONAL
POLICY AND CONFERS JURISDICTION UPON THE COMMISSION.  IT DECLARES A
POLICY TO INCLUDE THE FOSTERING OF SOUND ECONOMIC CONDITIONS, THE
PROMOTION OF ECONOMICAL AND EFFICIENT SERVICE, AND THE PREVENTION OF
UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES; AND IT VESTS IN THE
INTERSTATE COMMERCE COMMISSION JURISDICTION TO REGULATE TRANSPORTATION
BY MOTOR VEHICLE, THE PROCUREMENT THEREOF AND THE PROVISION OF
FACILITIES THEREFOR. 

THE COMMISSION IS AUTHORIZED, SEC. 204, TO "ESTABLISH REASONABLE
REQUIREMENTS" FOR (1) CONTINUOUS AND ADEQUATE SERVICE, (2)
TRANSPORTATION OF BAGGAGE AND EXPRESS, (3) UNIFORM SYSTEMS OF ACCOUNTS,
RECORDS AND REPORTS, (4) PRESERVATION OF RECORDS, (5) QUALIFICATIONS
AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES, AND (6) SAFETY OF OPERATIONS
AND EQUIPMENT. 

IT IS SIGNIFICANT THAT THE TERM "EMPLOYEES" IS NOT LIMITED, AND THAT
THE ONLY LIMITATION UPON THE AUTHORIZED REQUIREMENTS IS THAT THEY BE
"REASONABLE."  THUS THE TERMS OF SEC. 204(A)(1) AND (2) APPLY WITH
RESPECT TO ALL EMPLOYEES OF COMMON AND CONTRACT CARRIERS BY MOTOR
VEHICLE; AND, AS NO "REASONABLE REQUIREMENT" COULD EVER CAUSE A HARSH,
OPPRESSIVE OR ABSURD RESULT, THERE IS NO REASON TO CONSTRUE THE SECTION
TO MEAN ANYTHING ELSE. 

THE LEGISLATIVE HISTORY OF THE ACT AND RELATED ACTS DISCLOSES A CLEAR
CONGRESSIONAL INTENTION THAT THE COMMISSION SHALL REGULATE HOURS OF
SERVICE AND QUALIFICATIONS FOR ALL PURPOSES WITHIN THE DECLARATION OF
POLICY AND LEGISLATIVE STANDARDS SET FORTH IN SEC. 204, AND THAT THE
COMMISSION'S JURISDICTION SHALL BE EXCLUSIVE. 

THE NATURE OF INTERSTATE TRANSPORTATION BUSINESS MAKES IT NECESSARY
THAT ONE ADMINISTRATIVE AGENCY HAVE POWER TO REGULATE QUALIFICATION AND
MAXIMUM HOURS OF SERVICE FOR ALL BUSINESS PURPOSES, AND THE COMMISSION
IS THE ONLY AGENCY CHARGED BY CONGRESS WITH THE DUTY OF EXECUTING ITS
TRANSPORTATION POLICY. 

THERE CAN BE NO DIVIDED JURISDICTION WITH RESPECT TO THE
QUALIFICATIONS AND HOURS OF SERVICE OF EMPLOYEES IN THEIR RELATIONS TO
ANY PHASE OF INTERSTATE TRANSPORTATION BY MOTOR VEHICLE.  BUT IF THE
FAIR LABOR STANDARDS ACT APPLIES, THEN STATE STATUTES OR MUNICIPAL
ORDINANCES MORE RESTRICTIVE IN TERMS ARE MADE EFFECTIVE.  THIS WOULD
LEAD TO AN UNCONSTITUTIONAL RESULT, BECAUSE AUTHORITY WOULD BE
DELEGATED TO STATES WITHOUT ANY STANDARDS OR POLICY DECLARED. 

WHERE THE LANGUAGE IS PLAIN, THERE IS NO ROOM FOR CONSTRUCTION. 
UNITED STATES V. MISSOURI PACIFIC R. CO., 278 U.S. 269. 

NO LIMITATIONS ARE EITHER EXPRESSED OR IMPLIED. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL REQUIRES DETERMINATION OF THE POWER OF THE INTERSTATE
COMMERCE COMMISSION UNDER THE MOTOR CARRIER ACT, 1935, TO ESTABLISH
REASONABLE REQUIREMENTS WITH RESPECT TO THE QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE OF EMPLOYEES OF MOTOR CARRIERS, OTHER THAN EMPLOYEES
WHOSE DUTIES AFFECT SAFETY OF OPERATION. 

AFTER DETAILED CONSIDERATION, THE MOTOR CARRIER ACT, 1935, WAS
PASSED.  FN1  IT FOLLOWED GENERALLY THE SUGGESTION OF FORM MADE BY THE
FEDERAL COORDINATOR OF TRANSPORTATION N2.  THE DIFFICULTY AND WIDE
SCOPE OF THE PROBLEMS RAISED BY THE GROWTH OF THE MOTOR CARRIER
INDUSTRY WERE OBVIOUS.  CONGRESS SOUGHT TO SET OUT ITS PURPOSE AND THE
RANGE OF ITS ACTION IN A DECLARATION OF POLICY WHICH COVERED THE
PRESERVATION AND FOSTERING OF MOTOR TRANSPORTATION IN THE PUBLIC
INTEREST, TARIFFS, THE COORDINATION OF MOTOR CARRIAGE WITH OTHER FORMS
OF TRANSPORTATION AND COOPERATION WITH THE SEVERAL STATES IN THEIR
EFFORTS TO SYSTEMATIZE THE INDUSTRY.  FN3 

WHILE EFFICIENT AND ECONOMICAL MOVEMENT IN INTERSTATE COMMERCE IS
OBVIOUSLY A MAJOR OBJECTIVE OF THE ACT,  FN4  THERE ARE NUMEROUS
PROVISIONS WHICH MAKE IT CLEAR THAT CONGRESS INTENDED TO EXERCISE ITS
POWERS IN THE NON-TRANSPORTATION PHASES OF MOTOR CARRIER ACTIVITY.  FN5
SAFETY OF OPERATION WAS CONSTANTLY BEFORE THE COMMITTEES AND CONGRESS
IN THEIR STUDY OF THE SITUATION.  FN6 

THE PERTINENT PORTIONS OF THE SECTION OF THE ACT IMMEDIATELY UNDER
DISCUSSION READ AS FOLLOWS: 

"SEC. 204(A).  IT SHALL BE THE DUTY OF THE COMMISSION - 

"(1)  TO REGULATE COMMON CARRIERS BY MOTOR VEHICLE AS PROVIDED IN THIS
PART, AND TO THAT END THE COMMISSION MAY ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO CONTINUOUS AND ADEQUATE SERVICE,
TRANSPORTATION OF BAGGAGE AND EXPRESS, UNIFORM SYSTEMS OF ACCOUNTS,
RECORDS, AND REPORTS, PRESERVATION OF RECORDS, QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND
EQUIPMENT. 

"(2)  TO REGULATE CONTRACT CARRIERS BY MOTOR VEHICLE AS PROVIDED IN
THIS PART, AND TO THAT END THE COMMISSION MAY ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO UNIFORM SYSTEMS OF ACCOUNTS, RECORDS, AND
REPORTS, PRESERVATION OF RECORDS, QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND EQUIPMENT. 

"(3)  TO ESTABLISH FOR PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE,
IF NEED THEREFOR IS FOUND, REASONABLE REQUIREMENTS TO PROMOTE SAFETY OF
OPERATION, AND TO THAT END PRESCRIBE QUALIFICATIONS AND MAXIMUM HOURS
OF SERVICE OF EMPLOYEES, AND STANDARDS OF EQUIPMENT  ...  "  SHORTLY
AFTER THE APPROVAL OF THE ACT, THE COMMISSION ON ITS OWN MOTION
UNDERTOOK TO AND DID FIX MAXIMUM HOURS OF SERVICE FOR "EMPLOYEES WHOSE
FUNCTIONS IN THE OPERATION OF MOTOR VEHICLES MAKE SUCH REGULATIONS
DESIRABLE BECAUSE OF SAFETY CONSIDERATIONS."  FN7  A FEW MONTHS AFTER
THIS DETERMINATION, THE FAIR LABOR STANDARDS ACT WAS ENACTED.  FN8
ALL EMPLOYEES SUBJECT TO ITS TERMS AND SEC. 18 MAKES THE MAXIMUM HOURS
OF THE FAIR LABOR STANDARDS ACT SUBJECT TO FURTHER REDUCTION BY
APPLICABLE FEDERAL OR STATE LAW OR MUNICIPAL ORDINANCES.  THERE WERE
CERTAIN EMPLOYEES EXCEPTED, HOWEVER, FROM THESE REGULATIONS BY SEC.
13(B).  IT READS AS FOLLOWS: 

"SEC. 13(B).  THE PROVISIONS OF SECTION 7 SHALL NOT APPLY WITH
RESPECT TO (1) ANY EMPLOYEE WITH RESPECT TO WHOM THE INTERSTATE
COMMERCE COMMISSION HAS POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE PURSUANT TO THE PROVISIONS OF SECTION 204 OF THE MOTOR
CARRIER ACT, 1935; ...  " 

THIS EXEMPTION BROUGHT SHARPLY INTO FOCUS THE COVERAGE OF EMPLOYEES
BY MOTOR CARRIER ACT, SEC. 204(A).  CLERICAL, STORAGE AND OTHER NON
TRANSPORTATION WORKERS ARE UNDER THIS OR THE FAIR LABOR STANDARDS ACT,
DEPENDENT UPON THE SWEEP OF THE WORD EMPLOYEE IN THIS ACT.  THE
COMMISSION AGAIN EXAMINED THE QUESTION OF ITS JURISDICTION AND IN EX
PARTE NO. MC-28  FN9  AGAIN REACHED THE CONCLUSION THAT ITS POWER UNDER
"SECTION 204(A)(1) AND (2) IS LIMITED TO PRESCRIBING QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE FOR THOSE EMPLOYEES  ...  WHOSE ACTIVITIES
AFFECT THE SAFETY OF OPERATION."  IT ADDED: "THE PROVISIONS OF SECTION
202 EVINCE A CLEAR INTENT OF CONGRESS TO LIMIT OUR JURISDICTION TO
REGULATING THE MOTOR-CARRIER INDUSTRY AS A PART OF THE TRANSPORTATION
SYSTEM OF THE NATION.  TO EXTEND THAT REGULATION TO FEATURES WHICH ARE
NOT CHARACTERISTIC OF TRANSPORTATION OR INHERENT IN THAT INDUSTRY
STRIKES US AS AN ENLARGEMENT OF OUR JURISDICTION UNWARRANTED BY ANY
EXPRESS OR IMPLIED PROVISION IN THE ACT, WHICH VESTS IN US ALL THE
POWERS WE HAVE."  FN10  THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF
LABOR ARRIVED AT THE SAME RESULT IN AN INTERPRETATION.  FN11 

SHORTLY THEREAFTER APPELLEES, AN ASSOCIATION OF TRUCKMEN AND VARIOUS
COMMON CARRIERS BY MOTOR, FILED A PETITION WITH THE COMMISSION IN THE
PRESENT CASE SEEKING AN EXERCISE OF THE COMMISSION'S JURISDICTION UNDER
SEC. 204(A) TO FIX REASONABLE REQUIREMENTS "WITH RESPECT TO
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF ALL EMPLOYEES OF COMMON
AND CONTRACT CARRIERS, EXCEPT EMPLOYEES WHOSE DUTIES ARE RELATED TO
SAFETY OF OPERATIONS; (3) TO DISREGARD ITS REPORT AND ORDER IN EX PARTE
MC-28."  FN12  THE COMMISSION REAFFIRMED ITS POSITION AND DENIED THE
PETITION.  THE APPELLEES PETITIONED A THREE-JUDGE DISTRICT COURT TO
COMPEL THE COMMISSION TO TAKE JURISDICTION AND CONSIDER THE
ESTABLISHMENT OF QUALIFICATIONS AND HOURS OF SERVICE OF ALL EMPLOYEES
OF COMMON AND CONTRACT CARRIERS BY MOTOR VEHICLE.  FN13  THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION WAS PERMITTED TO
INTERVENE.  FN14  THE DISTRICT COURT REVERSED THE COMMISSION, SET ASIDE
ITS ORDER AND DIRECTED IT TO TAKE JURISDICTION OF THE APPELLEES'
PETITION.  31 F.SUPP.  35.  A DIRECT APPEAL TO THIS COURT WAS GRANTED. 
FN15 

IN THE BROAD DOMAIN OF SOCIAL LEGISLATION FEW PROBLEMS ARE ENMESHED
WITH THE DIFFICULTIES THAT SURROUND A DETERMINATION OF WHAT
QUALIFICATIONS AN EMPLOYEE SHALL HAVE AND HOW LONG HIS HOURS OF WORK
MAY BE.  UPON THE PROPER ADJUSTMENT OF THESE FACTORS WITHIN AN INDUSTRY
AND IN RELATION TO COMPETITIVE ACTIVITIES MAY WELL DEPEND THE ECONOMIC
SUCCESS OF THE ENTERPRISES AFFECTED AS WELL AS THE EMPLOYMENT AND
EFFICIENCY OF THE WORKERS.  THE MOTOR CARRIER ACT LAYS LITTLE EMPHASIS
UPON THE CLAUSE WE ARE CALLED UPON NOW TO CONSTRUE, "QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE OF EMPLOYEES."  NONE OF THE WORDS ARE DEFINED
BY THE SECTION, 203, DEVOTED TO THE EXPLANATION OF THE MEANING OF THE
WORDS USED IN THE ACT.  THEY ARE A PART OF AN ELABORATE ENACTMENT DRAWN
AND PASSED IN AN ATTEMPT TO ADJUST A NEW AND GROWING TRANSPORTATION
SERVICE TO THE NEEDS OF THE PUBLIC.  TO FIND THEIR CONTENT, THEY MUST
BE VIEWED IN THEIR SETTING. 

IN THE INTERPRETATION OF STATUTES, THE FUNCTION OF THE COURTS IS
EASILY STATED.  IT IS TO CONSTRUE THE LANGUAGE SO AS TO GIVE EFFECT TO
THE INTENT OF CONGRESS.  FN16  THERE IS NO INVARIABLE RULE FOR THE
DISCOVERY OF THAT INTENTION.  TO TAKE A FEW WORDS FROM THEIR CONTEXT
AND WITH THEM THUS ISOLATED TO ATTEMPT TO DETERMINE THEIR MEANING,
CERTAINLY WOULD NOT CONTRIBUTE GREATLY TO THE DISCOVERY OF THE PURPOSE
OF THE DRAFTSMEN OF A STATUTE, PARTICULARLY IN A LAW DRAWN TO MEET MANY
NEEDS OF A MAJOR OCCUPATION.  FN17 

THERE IS, OF COURSE, NO MORE PERSUASIVE EVIDENCE OF THE PURPOSE OF A
STATUTE THAN THE WORDS BY WHICH THE LEGISLATURE UNDERTOOK TO GIVE
EXPRESSION TO ITS WISHES. OFTEN THESE WORDS ARE SUFFICIENT IN AND OF
THEMSELVES TO DETERMINE THE PURPOSE OF THE LEGISLATION.  IN SUCH CASES
WE HAVE FOLLOWED THEIR PLAIN MEANING.  FN18  WHEN THAT MEANING HAS LED
TO ABSURD OR FUTILE RESULTS, HOWEVER, THIS COURT HAS LOOKED BEYOND THE
WORDS TO THE PURPOSE OF THE ACT.  FN19  FREQUENTLY, HOWEVER, EVEN WHEN
THE PLAIN MEANING DID NOT PRODUCE ABSURD RESULTS BUT MERELY AN
UNREASONABLE ONE "PLAINLY AT VARIANCE WITH THE POLICY OF THE
LEGISLATION AS A WHOLE"  FN20  THIS COURT HAS FOLLOWED THAT PURPOSE,
RATHER THAN THE LITERAL WORDS.  FN21  WHEN AID TO CONSTRUCTION OF THE
MEANING OF WORDS, AS USED IN THE STATUTE, IS AVAILABLE, THERE CERTAINLY
CAN BE NO "RULE OF LAW" WHICH FORBIDS ITS USE,  FN22  HOWEVER CLEAR THE
WORDS MAY APPEAR ON "SUPERFICIAL EXAMINATION."  FN23  THE
INTERPRETATION OF THE MEANING OF STATUTES, AS APPLIED TO JUSTICIABLE
CONTROVERSIES, IS EXCLUSIVELY A JUDICIAL FUNCTION.  THIS DUTY REQUIRES
ONE BODY OF PUBLIC SERVANTS, THE JUDGES, TO CONSTRUE THE MEANING OF
WHAT ANOTHER BODY, THE LEGISLATORS, HAS SAID.  OBVIOUSLY THERE IS
DANGER THAT THE COURTS' CONCLUSION AS TO LEGISLATIVE PURPOSE WILL BE
UNCONSCIOUSLY INFLUENCED BY THE JUDGES' OWN VIEWS OR BY FACTORS NOT
CONSIDERED BY THE ENACTING BODY.  A LIVELY APPRECIATION OF THE DANGER
IS THE BEST ASSURANCE OF ESCAPE FROM ITS THREAT BUT HARDLY JUSTIFIES AN
ACCEPTANCE OF A LITERAL INTERPRETATION DOGMA WHICH WITHHOLDS FROM THE
COURTS AVAILABLE INFORMATION FOR REACHING A CORRECT CONCLUSION.  FN24
EMPHASIS SHOULD BE LAID, TOO, UPON THE NECESSITY FOR APPRAISAL OF THE
PURPOSES AS A WHOLE OF CONGRESS IN ANALYZING THE MEANING OF CLAUSES OR
IN THE TEXT OF STATUTES SHOULD NOT BE GIVEN A WIDE MEANING, CONTRARY TO
A SETTLED POLICY, "EXCEPTING AS A DIFFERENT PURPOSE IS PLAINLY SHOWN." 
FN25 

THE LANGUAGE HERE UNDER CONSIDERATION, IF CONSTRUED AS APPELLEES
CONTEND, GIVES TO THE COMMISSION A POWER OF REGULATION AS TO
QUALIFICATIONS AND HOURS OF EMPLOYEES QUITE DISTINCT FROM THE SETTLED
PRACTICE OF CONGRESS.  THAT POLICY HAS BEEN CONSISTENT IN LEGISLATING
FOR SUCH REGULATION OF TRANSPORTATION EMPLOYEES IN MATTERS OF MOVEMENT
AND SAFETY ONLY.  THE HOURS OF SERVICE ACT  FN26  IMPOSES RESTRICTIONS
ON THE HOURS OF LABOR OF EMPLOYEES "ACTUALLY ENGAGED IN OR CONNECTED
WITH THE MOVEMENT OF ANY TRAIN."  THE SEAMEN'S ACT  FN27  LIMITS
EMPLOYEE REGULATIONS UNDER IT TO MEMBERS OF SHIPS' CREWS.  THE CIVIL
AERONAUTICS AUTHORITY HAS AUTHORITY OVER HOURS OF SERVICE OF EMPLOYEES
"IN THE INTEREST OF SAFETY."  FN28  IT IS STATED BY APPELLANTS IN THEIR
BRIEF WITH DETAILED CITATIONS, AND THE STATEMENT IS UNCONTRADICTED,
THAT AT THE TIME OF THE PASSAGE OF THE MOTOR VEHICLE ACT "FORTY STATES
HAD REGULATORY MEASURES RELATING TO THE HOURS OF SERVICE OF EMPLOYEES"
AND EVERY ONE "APPLIED EXCLUSIVELY TO DRIVERS OR HELPERS ON THE
VEHICLES."  IN THE FACE OF THIS COURSE OF LEGISLATION, COUPLED WITH THE
SUPPORTING INTERPRETATION OF THE TWO ADMINISTRATIVE AGENCIES CONCERNED
WITH ITS INTERPRETATION, THE INTERSTATE COMMERCE COMMISSION AND THE
WAGE AND HOUR DIVISION, IT CANNOT BE SAID THAT THE WORD "EMPLOYEE" AS
USED IN SEC. 204(A) IS SO CLEAR AS TO THE WORKMEN IT EMBRACES THAT WE
WOULD ACCEPT ITS BROADEST MEANING.  THE WORD, OF COURSE, IS NOT A WORD
OF ART. IT TAKES COLOR FROM ITS SURROUNDINGS AND FREQUENTLY IS
CAREFULLY DEFINED BY THE STATUTE WHERE IT APPEARS.  FN29 

WE ARE ESPECIALLY HESITANT TO CONCLUDE THAT CONGRESS INTENDED TO
GRANT THE COMMISSION OTHER THAN THE CUSTOMARY POWER TO SECURE SAFETY IN
VIEW OF THE ABSENCE IN THE LEGISLATIVE HISTORY OF THE ACT OF ANY
DISCUSSION OF THE DESIRABILITY OF GIVING THE COMMISSION BROAD AND
UNUSUAL POWERS OVER ALL EMPLOYEES.  THE CLAUSE IN QUESTION WAS NOT
CONTAINED IN THE BILL AS INTRODUCED.  FN30  NOR WAS IT IN THE
COORDINATOR'S DRAFT.  FN31  IT WAS PRESENTED ON THE SENATE FLOOR AS A
COMMITTEE AMENDMENT FOLLOWING A SUGGESTION OF THE CHAIRMAN OF THE
LEGISLATIVE COMMITTEE OF THE COMMISSION, MR. MCMANAMY.  FN32  THE
COMMITTEE REPORTS AND THE DEBATES CONTAIN NO INDICATION THAT A
REGULATION OF THE QUALIFICATIONS AND HOURS OF SERVICE OF ALL EMPLOYEES
WAS CONTEMPLATED; IN FACT THE EVIDENCE POINTS THE OTHER WAY.  THE
SENATE COMMITTEE'S REPORT EXPLAINED THE PROVISIONS OF SEC. 204(A)(1),
(2) AS GIVING THE COMMISSION AUTHORITY OVER COMMON AND CONTRACT
CARRIERS SIMILAR TO THAT GIVEN OVER PRIVATE CARRIERS BY SEC.
204(A)(3).  FN33  THE CHAIRMAN OF THE SENATE COMMITTEE EXPRESSED THE
SAME THOUGHT WHILE EXPLAINING THE PROVISIONS ON THE FLOOR OF THE
SENATE.  FN34  WHEN SUGGESTING THE ADDITION OF THE CLAUSE, THE CHAIRMAN
OF THE COMMISSION'S LEGISLATIVE COMMITTEE SAID:  "  ... IT RELATES TO
SAFETY."  FN35  IN THE HOUSE THE MEMBER IN CHARGE OF THE BILL
CHARACTERIZED THE PROVISIONS AS TENDING "GREATLY TO PROMOTE CAREFUL
OPERATION FOR SAFETY ON THE HIGHWAYS," AND SPOKE WITH ASSURANCE OF THE
COMMISSION'S ABILITY TO "FORMULATE A SET OF REASONABLE RULES  ...
INCLUDING THEREIN MAXIMUM LABORHOURS SERVICE ON THE HIGHWAY."  FN36
AND IN THE REPORT OF THE HOUSE COMMITTEE A MEMBER SET OUT SEPARATE
VIEWS CRITICIZING THE DELEGATION OF DISCRETION TO THE COMMISSION AND
PROPOSING AN AMENDMENT PROVIDING FOR AN EIGHT-HOUR DAY FOR "ANY
EMPLOYEE ENGAGED IN THE OPERATION OF SUCH MOTOR VEHICLE."  FN37 

THE COMMISSION AND THE WAGE AND HOUR DIVISION, AS WE HAVE SAID, HAVE
BOTH INTERPRETED SEC. 204(A) AS RELATING SOLELY TO SAFETY OF
OPERATION.  IN ANY CASE SUCH INTERPRETATIONS ARE ENTITLED TO GREAT
WEIGHT.  THIS IS PECULIARLY TRUE HERE WHERE THE INTERPRETATIONS INVOLVE
"CONTEMPORANEOUS CONTRUCTION OF A STATUTE BY THE MEN CHARGED WITH THE
RESPONSIBILITY OF SETTING ITS MACHINERY IN MOTION, OF MAKING THE PARTS
WORK EFFICIENTLY AND SMOOTHLY WHILE THEY ARE YET UNTRIED AND NEW." 
FN38  FURTHERMORE, THE COMMISSION'S INTERPRETATION GAINS MUCH
PERSUASIVENESS FROM THE FACT THAT IT WAS THE COMMISSION WHICH SUGGESTED
THE PROVISIONS' ENACTMENT TO CONGRESS.  FN39 

IT IS IMPORTANT TO REMEMBER THAT THE COMMISSION HAS THREE TIMES
CONCLUDED THAT ITS AUTHORITY WAS LIMITED TO SECURING SAFETY OF
OPERATION.  THE FIRST INTERPRETATION WAS MADE ON DECEMBER 29, 1937,
WHEN THE COMMISSION STATED:  "  ...  UNTIL THE CONGRESS SHALL HAVE
GIVEN US A MORE PARTICULAR AND DEFINITE COMMAND IN THE PREMISES, WE
SHALL LIMIT OUR REGULATIONS CONCERNING MAXIMUM HOURS OF SERVICE TO
THOSE EMPLOYEES WHOSE FUNCTIONS IN THE OPERATION OF MOTOR VEHICLES MAKE
SUCH REGULATIONS DESIRABLE BECAUSE OF SAFETY CONSIDERATIONS."  FN40
THIS EXPRESSION WAS HALF A YEAR OLD WHEN CONGRESS ENACTED THE FAIR
LABOR STANDARDS ACT WITH THE EXEMPTION OF SEC. 13(B)(1).  SEEMINGLY THE
SENATE AT LEAST WAS AWARE OF THE COMMISSION'S INVESTIGATION OF ITS
POWERS EVEN BEFORE ITS INTERPRETATION WAS ANNOUNCED.  FN41  UNDER THE
CIRCUMSTANCES IT IS UNLIKELY INDEED THAT CONGRESS WOULD NOT HAVE
EXPLICITLY OVERRULED THE COMMISSION'S INTERPRETATION HAD IT INTENDED TO
EXEMPT OTHERS THAN EMPLOYEES WHO AFFECTED SAFETY FROM THE LABOR
STANDARDS ACT. 

IT IS CONTENDED BY APPELLEES THAT THE DIFFERENCE IN LANGUAGE BETWEEN
SUBSECTIONS (1) AND (2) AND SUBSECTION (3) IS INDICATIVE OF A
CONGRESSIONAL PURPOSE TO RESTRICT THE REGULATION OF EMPLOYEES OF
PRIVATE CARRIERS TO "SAFETY OF OPERATION" WHILE INSERTING BROADER
AUTHORITY IN (1) AND (2) FOR EMPLOYEES OF COMMON AND CONTRACT
CARRIERS.  APPELLANTS ANSWER THAT THE DIFFERENCE IN LANGUAGE IS
EXPLAINED BY THE DIFFERENCE IN THE POWERS.  AS (1) AND (2) GIVE POWERS
BEYOND SAFETY FOR SERVICE, GOODS, ACCOUNTS AND RECORDS, LANGUAGE
LIMITING THOSE SUBSECTIONS TO SAFETY WOULD BE INAPT. 

APPELLEES CALL OUR ATTENTION TO CERTAIN PENDING LEGISLATION AS
SUSTAINING THEIR VIEW OF THE CONGRESSIONAL PURPOSE IN ENACTING THE
MOTOR CARRIER ACT.  WE DO NOT THINK IT CAN BE SAID THAT THE ACTION OF
THE SENATE AND HOUSE OF REPRESENTATIVES ON THIS PENDING TRANSPORTATION
LEGISLATION THROWS MUCH LIGHT ON THE POLICY OF CONGRESS OR THE MEANING
ATTRIBUTED BY THAT BODY TO SEC. 204(A).  ASIDE FROM THE VERY PERTINENT
FACT THAT THE LEGISLATION IS STILL UNADOPTED, THE LEGISLATIVE HISTORY
UP TO NOW POINTS ONLY TO A HESITATION TO DETERMINE A CONTROVERSY AS TO
THE MEANING OF THE PRESENT MOTOR CARRIER ACT, PENDING A JUDICIAL
DETERMINATION.  FN42 

ONE AMENDMENT MADE TO THE THEN PENDING MOTOR CARRIER ACT HAS
RELEVANCE TO OUR INQUIRY.  SECTION 203(B) READS AS SET OUT IN THE NOTE
BELOW.  FN43  THE WORDS, "EXCEPT THE PROVISIONS OF SECTION 204 RELATIVE
TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND SAFETY
OF OPERATION OR STANDARDS OF EQUIPMENT," ITALICIZED IN THE NOTE, WERE
ADDED BY AMENDMENT IN THE HOUSE AFTER THE PASSAGE OF S. 1629 IN THE
SENATE WITH THE ADDITION OF THE DISPUTED CLAUSE TO SEC. 204(A)(1) AND
(2).  FN44  IT IS EVIDENT THAT THE EXEMPTED VEHICLES AND OPERATORS
INCLUDE COMMON, CONTRACT AND PRIVATE CARRIERS.  IT SEEMS EQUALLY
EVIDENT THAT WHERE THESE VEHICLES OR OPERATORS WERE COMMON OR CONTRACT
CARRIERS, IT WAS NOT INTENDED BY CONGRESS TO GIVE THE COMMISSION POWER
TO REGULATE THE QUALIFICATIONS AND HOURS OF SERVICE OF EMPLOYEES, OTHER
THAN THOSE CONCERNED WITH THE SAFETY OF OPERATIONS. 

OUR CONCLUSION, IN VIEW OF THE CIRCUMSTANCES SET OUT IN THIS OPINION,
IS THAT THE MEANING OF EMPLOYEES IN SEC. 204(A)(1) AND (2) IS LIMITED
TO THOSE EMPLOYEES WHOSE ACTIVITIES AFFECT THE SAFETY OF OPERATION. 
THE COMMISSION HAS NO JURISDICTION TO REGULATE THE QUALIFICATIONS OR
HOURS OF SERVICE OF ANY OTHERS.  THE DECREE OF THE DISTRICT COURT IS
ACCORDINGLY REVERSED AND IT IS DIRECTED TO DISMISS THE COMPLAINT OF THE
APPELLEES.  REVERSED. 

FN1  49 STAT. 543. 

FN2  S. DOC. NO. 152, 73RD CONG., 2D SESS., REGULATION OF
TRANSPORTATION AGENCIES, P. 350.  SEE P. 25, FOR DISCUSSION OF THE
PRELIMINARY STEPS OF MOTOR CARRIER REGULATION.  HEARINGS ON REGULATION
OF INTERSTATE MOTOR CARRIERS, H.R. 5262 AND H.R. 6016, BEFORE THE HOUSE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 74TH CONG., 1ST SESS.;
HEARINGS ON S. 1629, SENATE COMMITTEE ON INTERSTATE COMMERCE, 74TH
CONG., 1ST SESS. 

FN3  SEC. 202; MAURER V. HAMILTON, 309 U.S. 598. 

FN4  SECS. 202, 216, 217, 218. 

FN5  SERVICES, SEC. 203(A)(19); BROKERS, SEC. 203(A)(18), SEC.
204(A)(4); SECURITY ISSUES, SEC. 214; INSURANCE, SEC. 215; ACCOUNTS,
RECORDS AND REPORTS, SEC. 220. 

FN6  MAURER V. HAMILTON, SUPRA; REGULATION OF TRANSPORTATION
AGENCIES, SUPRA, HIGHWAY AND SAFETY REGULATIONS, P. 32; HEARINGS ON S.
1629, SUPRA, PP. 122-123, 184. 

FN7  EX PARTE NO. MC-2, 3 M.C.C. 665, 667. 

FN8  52 STAT. 1060. 

FN9  13 M.C.C. 481, 488. 

FN10  13 M.C.C. 481, 489. 

FN11  INTERPRETATIVE BULLETIN NO. 9, WAGE & HOUR MANUAL (1940) 168. 

FN12  SEC. 204(A)(1), (6) AND (7)(E); RULES OF PRACTICE I.C.C., APRIL
1, 1936, RULE XV. 

FN13  SEC. 205(H), MOTOR CARRIER ACT; URGENT DEFICIENCIES ACT, 38
STAT. 220, 28 U.S.C. SECS. 47, 47A. 

FN14  CF. SECURITIES & EXCHANGE COMM'N V. U.S. REALTY & IMPROVEMENT
CO., ANTE, P. 434. 

FN15  JUDICIAL CODE SEC. 238; 38 STAT. 208, 219-20; 49 STAT. 543,
SEC. 205(H). 

FN16  STORY, J., IN MINOR V. MECHANICS' BANK, 1 PETERS 46, 64:  "BUT
NO GENERAL RULE CAN BE LAID DOWN UPON THIS SUBJECT, FURTHER THAN THAT
THAT EXPOSITION OUGHT TO BE ADOPTED IN THIS, AS IN OTHER CASES, WHICH
CARRIES INTO EFFECT THE TRUE INTENT AND OBJECT OF THE LEGISLATURE IN
THE ENACTMENT."  PENNINGTON V. COXE, 2 CRANCH 33, 59; JAMES V.
MILWAUKEE, 16 WALL.  159, 161; ATKINS V. DISINTEGRATING CO., 18 WALL. 
272, 301; WHITE V. UNITED STATES, 191 U.S. 545, 551; OZAWA V. UNITED
STATES, 260 U.S. 178, 194; UNITED STATES V. STONE & DOWNER CO., 274
U.S. 225, 239; GULF STATES STEEL CO. V. UNITED STATES, 287 U.S. 32, 45;
ROYAL INDEMNITY CO. V. AMERICAN BOND & M. CO., 289 U.S. 165, 169;
LINCOLN V. RICKETTS, 297 U.S. 373, 376; FOSTER V. UNITED STATES, 303
U.S. 118, 120. 

FN17  CF. DAVIES, THE INTERPRETATION OF STATUTES IN THE LIGHT OF
THEIR POLICY BY THE ENGLISH COURTS, 35 COLUMBIA LAW REVIEW 519; RADIN,
STATUTORY INTERPRETATION, 43 HARVARD LAW REVIEW 863; LANDIS, A NOTE ON
"STATUTORY INTERPRETATION," 43 HARVARD LAW REVIEW 886; R. POWELL,
CONSTRUCTION OF WRITTEN INSTRUMENTS, 14 INDIANA LAW JOURNAL 199, 309,
324; JONES, THE PLAIN MEANING RULE, 25 WASHINGTON UNIVERSITY LAW
QUARTERLY 2. 

FN18  TAFT V. COMMISSIONER, 304 U.S. 351, 359; HELVERING V. CITY BANK
CO., 296 U.S. 85, 89; WILBUR V. UNITED STATES, 284 U.S. 231, 237;
CROOKS V. HARRELSON, 282 U.S. 55, 60; UNITED STATES V. MISSOURI PACIFIC
R. CO., 278 U.S. 269, 278; VAN CAMP & SONS V. AMERICAN CAN CO., 278
U.S. 245, 253; CAMINETTI V. UNITED STATES, 242 U.S. 470, 490;
PENNSYLVANIA R. CO. V. INTERNATIONAL COAL CO., 230 U.S. 184, 199. 

FN19  ARMSTRONG CO. V. NU-ENAMEL CORP., 305 U.S. 315, 332; SORRELLS
V. UNITED STATES, 287 U.S. 435, 446; UNITED STATES V. RYAN, 284 U.S.
167, 176. 

FN20  OZAWA V. UNITED STATES, 260 U.S. 178, 194. 

FN21  HELVERING V. MORGAN'S, INC., 293 U.S. 121, 126; JOHNSON V.
SOUTHERN PACIFIC CO., 196 U.S. 1, 14; POPOVICI V. AGLER, 280 U.S. 379;
SMILEY V. HOLM, 285 U.S. 355; WILLIAMS V. UNITED STATES, 289 U.S. 553;
MAURER V. HAMILTON, SUPRA, PP. 612, 615. 

FN22  BOSTON SAND & GRAVEL CO. V. UNITED STATES, 278 U.S. 41, 48. 

FN23  HELVERING V. NEW YORK TRUST CO., 292 U.S. 455, 465. 

FN24  CF. COMMITTEE ON MINISTERS' POWERS REPORT (CMD.  4060, 1932),
P. 135. 

FN25  UNITED STATES V. JEFFERSON ELECTRIC CO., 291 U.S. 386, 396;
UNITED STATES V. ARIZONA, 295 U.S. 174, 188, 191; KEIFER & KEIFER V.
R.F.C., 306 U.S. 381, 394; OZAWA V. UNITED STATES, SUPRA. 

FN26  34 STAT. 1415. 

FN27  38 STAT. 1164, 1169, 1170-84. 

FN28  52 STAT. 1007, SEC. 601(A)(5).  THIS AUTHORITY HAS APPARENTLY
BEEN EXERCISED ONLY AS TO PILOTS AND COPILOTS.  DEPT. OF COMMERCE,
BUREAU OF AIR COMMERCE, CIVIL AIR REGULATIONS, NO. 61, SCHEDULED
AIRLINE RULES (INTERSTATE), AS AMENDED TO MAY 31, 1938, SECS. 61.518
61.5185. 

FN29  THAT THE WORD "EMPLOYEES" IS NOT TREATED BY CONGRESS AS A WORD
OF ART HAVING A DEFINITE MEANING IS APPARENT FROM AN EXAMINATION OF
RECENT LEGISLATION.  THUS THE SOCIAL SECURITY ACT SPECIFICALLY PROVIDES
THAT "THE TERM 'EMPLOYEE' INCLUDES AN OFFICER OF A CORPORATION," (42
U.S.C. SEC. 1301(A)(6)) WHILE THE FAIR LABOR STANDARDS ACT SPECIFICALLY
EXEMPTS "ANY EMPLOYEE EMPLOYED IN A BONA FIDE EXECUTIVE,
ADMINISTRATIVE, PROFESSIONAL, OR LOCAL RETAILING CAPACITY.  ...  "  (29
U.S.C. SEC. 213(A)(1)).  IN THE RAILROAD UNEMPLOYMENT INSURANCE ACT,
CONGRESS EXPRESSLY RECOGNIZED THE VARIABLE MEANING OF EMPLOYEE EVEN
WHEN DEFINED AT LENGTH AND USED ONLY IN A SINGLE ACT:  "  ...
'EMPLOYEE' (EXCEPT WHEN USED IN PHRASES ESTABLISHING A DIFFERENT
MEANING) MEANS  ...  "  (45 U.S.C. SEC. 351(D)).  IN A STATUTE
PERMITTING HEADS OF DEPARTMENTS TO SETTLE CLAIMS UP TO $1,000 ARISING
FROM THE NEGLIGENCE OF "EMPLOYEES OF THE GOVERNMENT," CONGRESS GIVES
RECOGNITION TO THE FACT THAT THE TERM IS NOT ON ITS FACE ALL-INCLUSIVE
BY PROVIDING:  "'EMPLOYEE' SHALL INCLUDE ENLISTED MEN IN THE ARMY, NAVY
AND MARINE CORPS."  (31 U.S.C. SECS. 215, 216.)  SEE ALSO THE VARYING
DEFINITIONS OF "EMPLOYEES" IN THE FOLLOWING STATUTES:  RAILROAD
RETIREMENT ACT, 45 U.S.C. SEC. 228A (B)(C); INTERSTATE COMMERCE ACT, 49
U.S.C. SEC. 1(7); EMERGENCY RAILROAD TRANSPORTATION ACT, 49 U.S.C. SEC.
251(F); COMMUNICATIONS ACT, 47 U.S.C. SEC. 210; NATIONAL LABOR
RELATIONS ACT, 29 U.S.C. SEC. 152(3); MARITIME LABOR RELATIONS ACT, 46
U.S.C. SEC. 1253(C); CLASSIFICATION ACT OF 1923(CIVIL SERVICE), 5
U.S.C. SEC. 662; U.S. EMPLOYEES' COMPENSATION ACT, 5 U.S.C. SEC. 790;
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, 33 U.S.C. SEC.
902; BOILER INSPECTION ACT, 45 U.S.C. SEC. 22; RAILWAY LABOR ACT, 45
U.S.C. SEC. 151(5). 

WHERE THE TERM "EMPLOYEE" HAS BEEN USED IN STATUTES WITHOUT
PARTICULARIZED DEFINITION IT HAS NOT BEEN TREATED BY THE COURTS AS A
WORD OF DEFINITE CONTENT.  SEE METCALF & EDDY V. MITCHELL, 269 U.S.
514, 520(CONSULTING ENGINEERS PERFORMING SERVICES FOR STATES,
MUNICIPALITIES, AND WATER DISTRICTS HELD NOT TO BE "EMPLOYEES" UNDER
STATUTE EXEMPTING "OFFICERS AND EMPLOYEES UNDER  ... ANY STATE,  ...
OR ANY LOCAL SUBDIVISION THEREOF" FROM THE INCOME TAX); WASKEY V.
HAMMER, 223 U.S. 85(MINERAL SURVEYOR, APPOINTED BY THE SURVEYOR BUT
PAID BY PRIVATE PERSONS, IS WITHIN PROHIBITION OF STATUTE PROHIBITING
"EMPLOYES IN THE GENERAL LAND OFFICE" FROM PURCHASING PUBLIC LAND);
NASHVILLE, C. & ST. L. RY. V. RAILWAY EMPLOYEES' DEPT., 93 F.2D
340(FURLOUGHED RAILROAD WORKERS ENTITLED TO PRIORITY IN REHIRING HELD
"EMPLOYEES" WITHIN MEANING OF RAILWAY LABOR ACT), DISCUSSED IN 51 HARV.
L. REV. 1299; LATTA V. LONSDALE, 107 F. 585(ATTORNEY NOT "EMPLOYEE"
WITHIN MEANING OF STATUTE GIVING "EMPLOYEES" PREFERENCE AGAINST ASSETS
OF INSOLVENT CORPORATIONS); VANE V. NEWCOMBE, 132 U.S. 220(CONTRACTOR
WHO BUILT LINES FOR TELEGRAPH COMPANY NOT "EMPLOYEE" WITHIN STATUTE
GIVING EMPLOYEES LIENS AGAINST CORPORATE PROPERTY); MALCOMSON V. WAPPOO
MILLS, 86 F. 192(SAME); CF. UNITED STATES V. GRIFFITH, 55 APP. D.C.
123; 2 F.2D 925(WAR DEPARTMENT CLERK RECEIVING DISABILITY COMPENSATION
HELD EMPLOYEE OF GOVERNMENT WITHIN COMMON LAW RULE OF THE DISTRICT OF
COLUMBIA THAT EMPLOYEE OF A LITIGANT CANNOT BE A MEMBER OF JURY); SEE
ALSO, HULL V. PHILADELPHIA & READING RY. CO., 252 U.S. 475; LOUISVILLE,
E. & ST. L.R. CO. V. WILSON, 138 U.S. 501; CAMPBELL V. COMMISSIONER, 87
F.2D 128; BURNET V. JONES, 50 F.2D 14; BURNET V. MCDONOUGH, 46 F.2D
944. 

FN30  S. 1629, 74TH CONG., 1ST SESS. 

FN31  S. DOC. 152, 73RD CONG., 2ND SESS., P. 352, SEC. 304(A)(1). 

FN32  SEE THE TESTIMONY OF MR. MCMANAMY IN HEARINGS ON S. 1629 BEFORE
THE SENATE COMMITTEE ON INTERSTATE COMMERCE, 74TH CONG., 1ST SESS., PP.
122, 123: 

"THE REGULATION OF THE HOURS OF SERVICE OF BUS AND TRUCK OPERATORS IS
FAR MORE IMPORTANT FROM A SAFETY STANDPOINT THAN THE REGULATION OF THE
HOURS OF SERVICE OF RAILROAD EMPLOYEES BECAUSE THE DANGER IS GREATER. 
...  THIS COULD BE ACCOMPLISHED BY INSERTING IN SECTION 304(A)(1) AND
(2), LINES 9 AND 15, PAGE 8, FOLLOWING THE WORD 'RECORDS' IN BOTH
LINES, THE WORDS WHICH APPEAR IN S. 394, AS FOLLOWS:  'QUALIFICATIONS
AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES.'" 

THE CLAUSE IN QUESTION CAME FROM SEC. 2(A)(1) OF S. 394, 74TH CONG.,
1ST SESS., A SUBSECTION OTHERWISE SUBSTANTIALLY LIKE THE CORRESPONDING
SUBSECTION IN S. 1629. 

SENATOR WHEELER, CHAIRMAN OF THE COMMITTEE ON INTERSTATE COMMERCE AND
SPONSOR OF THE BILL, EXPLAINED THE PROVISION ON THE FLOOR OF THE
SENATE: "  ...  THE COMMITTEE AMENDED PARAGRAPHS (1) AND (2)(OF SEC.
204) TO CONFER POWER ON THE COMMISSION TO ESTABLISH REASONABLE
REQUIREMENTS WITH RESPECT TO THE QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE OF EMPLOYEES OF COMMON AND CONTRACT CARRIERS,  ...  THIS
SUGGESTION CAME TO US, I THINK, FROM THE CHAIRMAN OF THE LEGISLATIVE
COMMITTEE OF THE INTERSTATE COMMERCE COMMISSION.  ... 

"IN ORDER TO MAKE THE HIGHWAYS MORE SAFE, AND SO THAT COMMON AND
CONTRACT CARRIERS MAY NOT BE UNDULY PREJUDICED IN THEIR COMPETITION
WITH PEDDLER TRUCKS AND OTHER PRIVATE OPERATORS OF MOTOR TRUCKS, A
PROVISION WAS ADDED IN SUBPARAGRAPH 3 GIVING THE COMMISSION AUTHORITY
TO ESTABLISH SIMILAR REQUIREMENTS WITH RESPECT TO THE QUALIFICATIONS
AND HOURS OF SERVICE OF THE EMPLOYEES OF SUCH OPERATORS.  ..."  79
CONG. REC. 5652. 

FN33  S. REP. 482, 74TH CONG., 1ST SESS.  THE REPORT STATED:  "NO
REGULATION IS PROPOSED FOR PRIVATE CARRIERS EXCEPT THAT AN AMENDMENT
ADOPTED IN COMMITTEE AUTHORIZES THE COMMISSION TO REGULATE THE
'QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND SAFETY OF
OPERATION AND EQUIPMENT' OF PRIVATE CARRIERS OF PROPERTY BY MOTOR
VEHICLE IN THE EVENT THAT THE COMMISSION DETERMINES THERE IS NEED FOR
SUCH REGULATION.  OTHER AMENDMENTS ADOPTED BY THE COMMITTEE CONFER LIKE
AUTHORITY UPON THE COMMISSION WITH RESPECT TO COMMON AND CONTRACT
CARRIERS."  SAFETY OF OPERATION AND EQUIPMENT WAS IN THE ORIGINAL
BILL. 

FN34  SEE LAST PARAGRAPH OF REMARKS OF SENATOR WHEELER, NOTE 32
SUPRA. 

FN35  HEARINGS, NOTE 32 SUPRA. 

FN36  79 CONG. REC. 12206. 

FN37  H.R. REP. NO. 1645, 74TH CONG., 1ST SESS. 

FN38  NORWEGIAN NITROGEN CO. V. UNITED STATES, 288 U.S. 294, 315. 

FN39 HASSETT V. WELCH, 303 U.S. 303, 310. 

FN40  EX PARTE NO. MC-2, 3 M.C.C. 665, 667. 

FN41  81 CONG. REC. 7875. 

FN42  THE PENDING LEGISLATION IS S. 2009, 76TH CONG., 1ST SESS., 84
CONG. REC. 3509.  AS TO THE POINT HERE UNDER DISCUSSION, THE REPORT OF
THE SENATE COMMITTEE SAID:  "PARAGRAPH (1) OF SECTION 34 OF THE BILL IS
BASED ON THE PROVISIONS OF SUBPARAGRAPHS (1), (2), AND (3) OF SECTION
204(A) OF THE MOTOR CARRIER ACT.  IN THE ORIGINAL DRAFT, THERE WAS
INSERTED AT THE BEGINNING OF THE PARAGRAPH THE CLAUSE 'IN ORDER TO
PROMOTE SAFETY OF OPERATIONS,' THUS MAKING CLEAR THAT THE COMMISSION'S
POWER TO REGULATE QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF
EMPLOYEES IS CONFINED TO THOSE WHO HAVE ANYTHING TO DO WITH SAFETY OF
OPERATION.  THIS IS A QUESTION WITH RESPECT TO WHICH CONSIDERABLE DOUBT
SEEMS TO HAVE ARISEN UNDER THE WORDING OF THE PRESENT LAW.  UPON THE
STRENUOUS OBJECTION OF THE TRUCKERS CLAIMING CONFLICT BETWEEN THIS LAW
AND THE FAIR LABOR STANDARDS ACT, THE BILL (I.E., THE COMMITTEE
AMENDMENT) RESTORES THE LAW TO THE PRESENT PROVISIONS OF THE MOTOR
CARRIER ACT."  S. REP. NO. 433, 76TH CONG., 1ST SESS., P. 24.  THE BILL
PASSED THE SENATE.  THE HOUSE BILL LEFT SEC. 204(A)(1), (2) AND (3) OF
THE PRESENT ACT UNCHANGED.  84 CONG. REC. 9459; H.R. REP. NO. 1217,
76TH CONG., 1ST SESS., 84 CONG. REC. 10125.  WHILE THE BILLS WERE IN
CONFERENCE THE CHAIRMAN OF THE LEGISLATIVE COMMITTEE OF THE INTERSTATE
COMMERCE COMMISSION SENT TO THE CHAIRMEN OF THE HOUSE AND SENATE
COMMITTEES A LETTER ON THE HOUSE AND SENATE BILLS WHICH SUGGESTED THAT
BOTH BILLS EXPLICITLY LIMIT THE COMMISSION'S JURISDICTION OVER
QUALIFICATIONS AND HOURS OF SERVICE OF EMPLOYEES TO CONSIDERATIONS OF
SAFETY.  THE LETTER STATED:  "WHILE THE SUBSECTION (IN THE SENATE BILL)
FOLLOWS THE EXISTING LANGUAGE OF SECTION 204  ...  , A CONTROVERSY HAS
ARISEN IN REGARD TO THE MEANING OF THAT LANGUAGE.  ...  THIS
CONTROVERSY HAS NOW REACHED THE SUPREME COURT.  WE THINK IT MAY WELL BE
DETERMINED IN THIS NEW LEGISLATION.  IN OUR JUDGMENT, IF RESTRICTIONS
ON HOURS OF LABOR FOR SOCIAL AND ECONOMIC REASONS ARE TO BE IMPOSED,
THIS SHOULD BE DONE BY CONGRESS, AND NO DUTY IN THAT RESPECT SHOULD BE
DELEGATED TO THE COMMISSION, WHICH HAS NO EXPERIENCE WHICH PARTICULARLY
FITS IT FOR THE PERFORMANCE OF SUCH A DUTY.  OUR AUTHORITY OVER
QUALIFICATIONS AND HOURS OF SERVICE OF EMPLOYEES SHOULD, THEREFORE, BE
CONFINED TO THE NEEDS OF SAFETY IN OPERATION.  ...  "  ON APRIL 26,
1940, THE HOUSE CONFEREES REPORTED TO THE HOUSE A COMPROMISE BILL
AGREED ON BY THE CONFERENCE COMMITTEE WHICH LEFT SEC. 204(A)(1), (2),
AND (3) OF THE MOTOR CARRIER ACT UNAMENDED.  86 CONG. REC. 7847; H.R.
REP. NO. 2016, 76TH CONG., 3D SESS.  ON MAY 9, 1940, THE HOUSE BECAUSE
OF DISAGREEMENT WITH SECTIONS OF THIS BILL NOT HERE RELEVANT VOTED TO
RECOMMIT THE BILL TO THE CONFERENCE COMMITTEE.  86 CONG. REC. 8986. 

FN43  "(B)  NOTHING IN THIS PART, EXCEPT THE PROVISIONS OF SECTION
204 RELATIVE TO QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF
EMPLOYEES AND SAFETY OF OPERATION OR STANDARDS OF EQUIPMENT SHALL BE
CONSTRUED TO INCLUDE (1) MOTOR VEHICLES EMPLOYED SOLELY IN TRANSPORTING
SCHOOL CHILDREN AND TEACHERS TO OR FROM SCHOOL; OR (2) TAXICABS, OR
OTHER MOTOR VEHICLES PERFORMING A BONA FIDE TAXICAB SERVICE, HAVING A
CAPACITY OF NOT MORE THAN SIX PASSENGERS AND NOT OPERATED ON A REGULAR
ROUTE OR BETWEEN FIXED TERMINI; OR (3) MOTOR VEHICLES OWNED OR OPERATED
BY OR ON BEHALF OF HOTELS AND USED EXCLUSIVELY FOR THE TRANSPORTATION
OF HOTEL PATRONS BETWEEN HOTELS AND LOCAL RAILROAD OR OTHER COMMON
CARRIER STATIONS; OR (4) MOTOR VEHICLES OPERATED, UNDER AUTHORIZATION,
REGULATION, AND CONTROL OF THE SECRETARY OF THE INTERIOR, PRINCIPALLY
FOR THE PURPOSE OF TRANSPORTING PERSONS IN AND ABOUT THE NATIONAL PARKS
AND NATIONAL MONUMENTS; OR (4A) MOTOR VEHICLES CONTROLLED AND OPERATED
BY ANY FARMER, AND USED IN THE TRANSPORTATION OF HIS AGRICULTURAL
COMMODITIES AND PRODUCTS THEREOF, OR IN THE TRANSPORTATION OF SUPPLIES
TO HIS FARM; OR (4B) MOTOR VEHICLES CONTROLLED AND OPERATED BY A
COOPERATIVE ASSOCIATION AS DEFINED IN THE AGRICULTURAL MARKETING ACT,
APPROVED JUNE 15, 1929, AS AMENDED; OR (5) TROLLEY BUSSES OPERATED BY
ELECTRIC POWER DERIVED FROM A FIXED OVERHEAD WIRE, FURNISHING LOCAL
PASSENGER TRANSPORTATION SIMILAR TO STREET-RAILWAY SERVICE; OR (6)
MOTOR VEHICLES USED EXCLUSIVELY IN CARRYING LIVESTOCK, FISH (INCLUDING
SHELL FISH), OR AGRICULTURAL COMMODITIES (NOT INCLUDING MANUFACTURED
PRODUCTS THEREOF); OR (7) MOTOR VEHICLES USED EXCLUSIVELY IN THE
DISTRIBUTION OF NEWSPAPERS; NOR, UNLESS AND TO THE EXTENT THAT THE
COMMISSION SHALL FROM TIME TO TIME FIND THAT SUCH APPLICATION IS
NECESSARY TO CARRY OUT THE POLICY OF CONGRESS ENUNCIATED IN SECTION
202, SHALL THE PROVISIONS OF THIS PART, EXCEPT THE PROVISIONS OF
EMPLOYEES AND SAFETY OF OPERATION OR STANDARDS OF EQUIPMENT APPLY TO:
(8) THE TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OR
FOREIGN COMMERCE WHOLLY WITHIN A MUNICIPALITY OR BETWEEN CONTIGUOUS
MUNICIPALITIES OR WITHIN A ZONE ADJACENT TO AND COMMERCIALLY A PART OF
ANY SUCH MUNICIPALITY OR MUNICIPALITIES, EXCEPT WHEN SUCH
TRANSPORTATION IS UNDER A COMMON CONTROL, MANAGEMENT, OR ARRANGEMENT
FOR A CONTINUOUS CARRIAGE OR SHIPMENT TO OR FROM A POINT WITHOUT SUCH
MUNICIPALITY, MUNICIPALITIES, OR ZONE, AND PROVIDED THAT THE MOTOR
CARRIER ENGAGED IN SUCH TRANSPORTATION OF PASSENGERS OVER REGULAR OR
IRREGULAR ROUTE OR ROUTES IN INTERSTATE COMMERCE IS ALSO LAWFULLY
ENGAGED IN THE INTRASTATE TRANSPORTATION OF PASSENGERS OVER THE ENTIRE
LENGTH OF SUCH INTERSTATE ROUTE OR ROUTES IN ACCORDANCE WITH THE LAWS
OF EACH STATE HAVING JURISDICTION; OR (9) THE CASUAL, OCCASIONAL, OR
RECIPROCAL TRANSPORTATION OF PASSENGERS OR PROPERTY IN INTERSTATE OR
FOREIGN COMMERCE FOR COMPENSATION BY ANY PERSON NOT ENGAGED IN
TRANSPORTATION BY MOTOR VEHICLE AS A REGULAR OCCUPATION OR BUSINESS." 

FN44  H.R. REP. NO. 1645, 74TH CONG., 1ST SESS. 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS, MR. JUSTICE STONE, AND MR.
JUSTICE ROBERTS ARE OF OPINION THAT THE DECREE SHOULD BE AFFIRMED FOR
THE REASONS STATED IN THE OPINION OF THE DISTRICT COURT, 31 F.SUPP. 
35. 
..END :
















UNITED STATES V. DICKERSON, 310 U.S. 554 


NO. 705.  ARGUED APRIL 26, 1940.  - DECIDED MAY 27, 1940.  - 89 CT. CLS.
520, REVERSED. 


1.  A PROVISO APPENDED TO AN APPROPRIATION IN SEC. 402 OF PUBLIC
RESOLUTION 122, JUNE 21, 1938, DECLARED "NO PART OF ANY APPROPRIATION
CONTAINED IN THIS OR ANY OTHER ACT FOR THE FISCAL YEAR ENDING JUNE 30,
1939, SHALL BE AVAILABLE FOR THE PAYMENT" OF ANY ENLISTMENT ALLOWANCE
FOR "RE-ENLISTMENTS MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1939,
NOTWITHSTANDING APPLICABLE PORTIONS OF SECTIONS 9 AND 10" OF THE BASIC
MILITARY PAY ACT OF JUNE 10, 1922.  HELD, IN VIEW OF ITS LEGISLATIVE
HISTORY, THAT THE EFFECT OF THE PROVISO WAS NOT MERELY TO RESTRICT THE
FUNDS AVAILABLE, BUT TO SUSPEND THE RIGHT TO RE-ENLISTMENT ALLOWANCES
DURING THE FISCAL YEAR SPECIFIED.  P. 555. 

2.  THERE SHOULD BE A CONSIDERED WEIGHING OF EVERY RELEVANT AID TO
CONSTRUCTION, IN DETERMINING THE MEANING OF AN ACT OF CONGRESS.  P.
562. 

UNITED STATES V. DICKERSON. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 309 U.S. 647, TO REVIEW A JUDGMENT SUSTAINING THE CLAIM
OF A SOLDIER FOR A RE-ENLISTMENT ALLOWANCE. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER RESPONDENT, DICKERSON, MAY RECOVER A JUDGMENT
AGAINST THE UNITED STATES UPON A CAUSE OF ACTION FOUNDED UPON SEC. 9 OF
THE ACT OF JUNE 10, 1922, C. 212, 42 STAT. 625, 629-630. 

ALLOWANCE SHALL BE PAID "TO EVERY HONORABLY DISCHARGED ENLISTED MAN
...  WHO RE-ENLISTS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF
HIS DISCHARGE."  RESPONDENT, WHO WAS HONORABLY DISCHARGED UPON THE
TERMINATION OF AN ENLISTED PERIOD ENDING ON THE 21ST OF JULY, 1938, RE
ENLISTED ON THE FOLLOWING DAY, THE 22ND, FOR A PERIOD OF THREE YEARS,
BUT WAS NOT PAID AN ENLISTMENT ALLOWANCE.  HE THEREUPON BROUGHT THIS
ACTION IN THE COURT OF CLAIMS.  IT IS CONCEDED THAT SEC. 9, IF NOT
REPEALED OR SUSPENDED AT THE DATE OF HIS RE-ENLISTMENT, WOULD ENTITLE
HIM TO THE SUM OF SEVENTY-FIVE DOLLARS. 

THE GOVERNMENT OPPOSED THE ACTION BEFORE THE COURT OF CLAIMS ON THE
GROUND THAT SEC. 402 OF PUBLIC RESOLUTION NO. 122, JUNE 21, 1938, C.
554, 52 STAT. 809, 818-819, SUSPENDED THE ALLOWANCE FOR RE-ENLISTMENT
DURING THE FISCAL YEAR ENDING JUNE 30, 1939.  SECTION 402 CONTAINS A
PROVISO, APPENDED TO AN APPROPRIATION FOR THE RURAL ELECTRIFICATION
ADMINISTRATION, THAT "NO PART OF ANY APPROPRIATION CONTAINED IN THIS OR
ANY OTHER ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1939, SHALL BE
AVAILABLE FOR THE PAYMENT" OF ANY ENLISTMENT ALLOWANCE FOR "RE
ENLISTMENTS MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1939,
NOTWITHSTANDING THE APPLICABLE PORTIONS OF SECTIONS 9 AND 10" OF THE
ACT OF JUNE 10, 1922. 

THE COURT OF CLAIMS ENTERED JUDGMENT FOR RESPONDENT ON THE GROUND
THAT SEC. 402, WHILE IT RESTRICTED THE FUNDS AVAILABLE FOR PAYMENT OF
THE ALLOWANCE, DID NOT SUSPEND OR REPEAL SEC. 9.  89 CT. CLS. 520. 
BECAUSE OF THE IMPORTANCE OF THE ISSUE IN THE ADMINISTRATION OF THE
REVENUES, WE GRANTED CERTIORARI.  309 U.S. 647. 

THERE CAN BE NO DOUBT THAT CONGRESS COULD SUSPEND OR REPEAL THE
AUTHORIZATION CONTAINED IN SEC. 9; AND IT COULD ACCOMPLISH ITS PURPOSE
BY AN AMENDMENT TO AN APPROPRIATION BILL, OR OTHERWISE.  UNITED STATES
V. MITCHELL, 109 U.S. 146, 150; MATHEWS V. UNITED STATES, 123 U.S. 182;
DUNWOODY V. UNITED STATES, 143 U.S. 578; BELKNAP V. UNITED STATES, 150
U.S. 588, 593; UNITED STATES V. VULTE, 233 U.S. 509, 515.  SEE UNITED
STATES V. LANGSTON, 118 U.S. 389.  THE QUESTION REMAINS WHETHER IT DID
SO DURING THE FISCAL YEAR ENDING ON THE 30TH OF JUNE, 1939. 

YEARS ENDING ON THE 30TH OF JUNE, 1923 TO 1933, AFTER WHICH DATE IT WAS
SUSPENDED DURING THE ENSUING FOUR FISCAL YEARS BY A PROVISION INSERTED
IN VARIOUS APPROPRIATION ACTS.  SECTION 18 OF THE ECONOMY ACT OF MARCH
3, 1933, C. 212, 47 STAT. 1489, 1519, PROVIDED THAT "SO MUCH OF
PROVIDES FOR THE PAYMENT OF ENLISTMENT ALLOWANCES TO ENLISTED MEN FOR
RE-ENLISTMENT WITHIN A PERIOD OF THREE MONTHS FROM DATE OF DISCHARGE IS
HEREBY SUSPENDED AS TO RE-ENLISTMENTS MADE DURING THE FISCAL YEAR
ENDING JUNE 30, 1934."  THIS PROVISION, WHICH CONCEDEDLY SUSPENDED THE
AUTHORIZATION FOR THE ENLISTMENT ALLOWANCE, WAS CONTINUED IN FULL FORCE
AND EFFECT FOR THE FISCAL YEARS ENDING ON THE 30TH OF JUNE, 1935, 1936
AND 1937, BY ITS INSERTION IN THE ECONOMY PROVISIONS OF THE INDEPENDENT
OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR 1935 AND IN THE TREASURY
POST OFFICE APPROPRIATION ACTS FOR THE FISCAL YEARS 1936 AND 1937. 
FN1 

THE SECOND DEFICIENCY APPROPRIATION BILL OF MAY 28, 1937, C. 277, 50
STAT. 213, 232, ALSO CONTAINED A PROVISION AFFECTING THE ENLISTMENT
ALLOWANCE, BUT THE FORM OF WORDS USED WAS CHANGED.  THAT ACT AS PASSED
BY CONGRESS PROVIDED THAT "NO PART OF ANY APPROPRIATION CONTAINED IN
THIS OR ANY OTHER ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1938, SHALL
BE AVAILABLE FOR THE PAYMENT OF ENLISTMENT ALLOWANCE TO ENLISTED MEN
FOR RE-ENLISTMENT WITHIN A PERIOD OF THREE MONTHS FROM DATE OF
DISCHARGE AS TO RE-ENLISTMENTS MADE DURING THE FISCAL YEAR ENDING JUNE
30, 1938, NOTWITHSTANDING THE APPLICABLE PROVISIONS OF SECTIONS 9 AND
10 OF THE ACT" APPROVED JUNE 10, 1922.  THE IDENTICAL PROVISION, WITH
THE EXCEPTION OF THE DATES, WAS APPENDED AS A PROVISO TO SEC. 402 OF
PUBLIC RESOLUTION 122, COPIED ABOVE, AND WAS MADE APPLICABLE DURING THE
FISCAL YEAR ENDING ON THE 30TH OF JUNE, 1939. 

THE PROVISION INSERTED IN THE SECOND DEFICIENCY APPROPRIATION BILL
FOR 1937 WAS INTRODUCED ON THE FLOOR OF THE SENATE AS AN AMENDMENT BY
SENATOR BYRNES.  IN RESPONSE TO QUESTIONS CONCERNING THE AMENDMENT, THE
SENATOR STATED (81 CONG. REC. 4426): 

"...  THE LANGUAGE OF THE AMENDMENT HAS BEEN CARRIED ORDINARILY IN
THE TREASURY AND POST OFFICE APPROPRIATION BILL, BUT WAS NOT CARRIED IN
THAT APPROPRIATION BILL THIS YEAR, AND IS THEREFORE PROPOSED TO BE
INCLUDED IN THE BILL NOW BEFORE US. 

     .         .         .         .       . 

THE EFFECT OF IT IS SIMPLY TO CARRY THE SAME LIMITATION THAT HAS BEEN
CARRIED FOR YEARS IN THE APPROPRIATION BILLS. 

     .         .         .         .         . 

ITS PURPOSE IS TO CONTINUE THE APPROPRIATION SITUATION THAT HAS
EXISTED FOR YEARS, SO THAT NO BOUNTY SHALL BE PAID FOR RE-ENLISTMENT IN
THE MILITARY AND OTHER UNIFORMED SERVICES."  THE AMENDMENT WAS
THEREUPON ADOPTED IN THE SENATE WITHOUT RECORDED OPPOSITION, AND WAS
SENT TO CONFERENCE.  THE HOUSE MANAGERS, IN REPORTING THE AMENDMENT TO
THE HOUSE, DESCRIBED IT AS "CONTINUING DURING THE FISCAL YEAR 1938 THE
SUSPENSION OF THE RE-ENLISTMENT GRATUITY FOR ENLISTED PERSONNEL OF THE
ARMY, NAVY, MARINE CORPS, AND COAST GUARD."  81 CONG. REC. 5084.  THE
COURSE OF THE DEBATE AMPLY DISCLOSES THAT THE HOUSE REGARDED THE
AMENDMENT AS CONTINUING DURING THE FISCAL YEAR 1938 THE SAME
RESTRICTION ON THE ENLISTMENT ALLOWANCE AS THE PROVISION INSERTED IN
EARLIER APPROPRIATION BILLS.  FN2  IT WAS THEN ADOPTED BY THE HOUSE. 
81 CONG. REC. 5091. 

THE IDENTICAL PROVISION (EXCEPT AS TO THE DATES), EVENTUALLY APPENDED
TO SEC. 402 OF PUBLIC RESOLUTION 122, WAS INTRODUCED AS AN AMENDMENT TO
THE SECOND DEFICIENCY APPROPRIATION BILL FOR THE FISCAL YEAR 1938(H.R.
10851, 75TH CONG., 3D SESS.), THEN PENDING IN THE HOUSE.  83 CONG. REC.
8522-8569.  A POINT OF ORDER WAS MADE AGAINST THE AMENDMENT ON THE
GROUND THAT IT WAS LEGISLATION IN AN APPROPRIATION BILL; REPRESENTATIVE
WOODRUM, WHO HAD CHARGE OF THE AMENDMENT, ADMITTED THAT THE POINT OF
ORDER WAS GOOD, AND THE CHAIR SUSTAINED IT.  83 CONG. REC. 8567.  THE
AMENDMENT WAS THEN OFFERED IN THE SENATE, WHERE THE PRESIDING OFFICER
ALSO SUSTAINED A POINT OF ORDER THAT IT WAS LEGISLATION IN AN
APPROPRIATION BILL.  FN3  83 CONG. REC. 9189. 

THE PROVISION WAS THEREAFTER INCLUDED BY THE CONFERENCE COMMITTEE AS
A PROVISO TO SEC. 402 OF H.J. RES. 679(WHICH LATER BECAME PUB. RES. NO.
122).  SEE 83 CONG. REC. 9512, 9677.  IT WAS PASSED BY THE SENATE
WITHOUT MUCH DEBATE.  FN4  IN THE HOUSE, THE DEBATE DISCLOSED THAT THE
AMENDMENT HAD THE SAME PURPOSE AND EFFECT AS THE PROVISION INSERTED IN
THE VARIOUS APPROPRIATION BILLS FOR THE PRECEDING YEARS. 
REPRESENTATIVE WOODRUM, IN PRESENTING THE AMENDMENT TO THE HOUSE,
DESCRIBED IT AS FOLLOWS (83 CONG. REC. 9677): 

"  ...  WE ARE PROVIDING A FURTHER INHIBITION FOR 1 YEAR AGAINST
PAYMENT OF THE RE-ENLISTMENT ALLOWANCES IN THE MILITARY AND NAVAL
SERVICES. 

"NO RE-ENLISTMENT ALLOWANCES HAVE BEEN PAID FOR THE PAST 5 FISCAL
YEARS IN ANY OF THE SERVICES, AND IN THE ABSENCE OF PERMANENT LAW
STOPPING IT, THE INHIBITION HAS BEEN SHUTTLED ABOUT IN ECONOMY BILLS
AND APPROPRIATION BILLS AT ONE TIME OR ANOTHER.  WE HAVE NOT PAID THEM
FOR 5 YEARS, AND THE LATTER PART OF THIS AMENDMENT NOW BEFORE THE HOUSE
IS A SENATE AMENDMENT WHICH DISCONTINUES FOR ANOTHER YEAR THE PAYMENT
OF THE RE-ENLISTMENT ALLOWANCES." 

THE OPPONENTS OF THE AMENDMENT, WHILE QUESTIONING ITS WISDOM, WERE IN
GENERAL AGREEMENT WITH ITS SPONSORS CONCERNING ITS PURPOSE AND EFFECT. 
83 CONG. REC. 9678-9679.  THE AMENDMENT WAS THEN ADOPTED BY THE HOUSE. 
83 CONG. REC. 9679. 

WE ARE OF OPINION THAT CONGRESS INTENDED IN SEC. 402 TO SUSPEND THE
ENLISTMENT ALLOWANCE AUTHORIZED BY SEC. 9 DURING THE FISCAL YEAR ENDING
ON THE 30TH OF JUNE, 1939.  THE LEGISLATIVE HISTORY, SUMMARIZED ABOVE,
DISCLOSES THAT CONGRESS INTENDED THE LEGISLATION CONCERNING THE
ALLOWANCE DURING THE FISCAL YEARS 1938 AND 1939 AS A CONTINUATION OF
THE SUSPENSION ENACTED IN EACH OF THE FOUR PRECEDING YEARS.  THE
ADOPTION IN THE ACT OF MAY 28, 1937, OF DIFFERENT TERMINOLOGY MIGHT IN
OTHER CIRCUMSTANCES INDICATE AN INTENT TO CHANGE THE OBJECT OF THE
LEGISLATION.  COMPARE BREWSTER V. GAGE, 280 U.S. 327, 337; CRAWFORD V.
BURKE, 195 U.S. 176, 190; PIRIE V. CHICAGO TITLE & TRUST CO., 182 U.S.
438, 448.  BUT THE DRAWING OF SUCH AN INFERENCE IS A WORKABLE RULE OF
CONSTRUCTION, NOT AN INFALLIBLE GUIDE TO LEGISLATIVE INTENT, AND CANNOT
OVERCOME MORE PERSUASIVE EVIDENCE WHERE, AS HERE, IT EXISTS.  COMPARE
BOSTON SAND & GRAVEL CO. V. UNITED STATES, 278 U.S. 41, 48. 

THE RESPONDENT CONTENDS THAT THE WORDS OF SEC. 402 ARE PLAIN AND
UNAMBIGUOUS AND THAT OTHER AIDS TO CONSTRUCTION MAY NOT BE UTILIZED. 
IT IS SUFFICIENT ANSWER TO DENY THAT SUCH WORDS WHEN USED IN AN
APPROPRIATION BILL ARE WORDS OF ART OR HAVE A SETTLED MEANING.  SEE
UNITED STATES V. PERRY, 50 F. 743, 748(C.C.A.8TH).  FN5  THE VERY
LEGISLATIVE MATERIALS WHICH RESPONDENT WOULD EXCLUDE REFUTE HIS
ASSUMPTION.  IT WOULD BE ANOMALOUS TO CLOSE OUR MINDS TO PERSUASIVE
EVIDENCE OF INTENTION ON THE GROUND THAT REASONABLE MEN COULD NOT
DIFFER AS TO THE MEANING OF THE WORDS.  LEGISLATIVE MATERIALS MAY BE
WITHOUT PROBATIVE VALUE, OR CONTRADICTORY, OR AMBIGUOUS, IT IS TRUE,
AND IN SUCH CASES WILL NOT BE PERMITTED TO CONTROL THE CUSTOMARY
MEANING OF WORDS OR OVERCOME RULES OF SYNTAX OR CONSTRUCTION FOUND BY
EXPERIENCE TO BE WORKABLE; THEY CAN SCARCELY BE DEEMED TO BE
INCOMPETENT OR IRRELEVANT.  SEE BOSTON SAND & GRAVEL CO. V. UNITED
STATES, SUPRA, AT 48.  THE MEANING TO BE ASCRIBED TO AN ACT OF CONGRESS
CAN ONLY BE DERIVED FROM A CONSIDERED WEIGHING OF EVERY RELEVANT AID TO
CONSTRUCTION.  FN6  THESE LEAD TO THE CONCLUSION THAT THE JUDGMENT OF
THE COURT BELOW MUST BE REVERSED. 

FN1  C. 102, 48 STAT. 509, 523; C. 110, 49 STAT. 218, 226-227; C.
725, 49 STAT. 1827, 1837. 

FN2  MR. SCOTT, ONE OF THE CHIEF SPEAKERS AGAINST THE AMENDMENT,
STATED (81 CONG. REC. 5089): "IN 1933 AN AMENDMENT WENT INTO THE
TREASURY-POST OFFICE APPROPRIATION BILL TAKING AWAY OR SUSPENDING THIS
RE-ENLISTMENT BONUS.  ...  THE PROVISION WAS CONTINUED BY INSERTING IT
IN THE TREASURY-POST OFFICE APPROPRIATION BILL EACH YEAR FROM 1933
UNTIL THIS YEAR.  IT WAS IN THE TREASURY-POST OFFICE APPROPRIATION BILL
THAT WAS BROUGHT INTO THE HOUSE FOR CONSIDERATION THIS YEAR.  I RAISED
A POINT OF ORDER AGAINST THE PROVISION ON THE GROUND IT WAS LEGISLATION
ON AN APPROPRIATION BILL, AND THAT IT DID NOT COME UNDER THE HOLMAN
RULE.  THE CHAIRMAN OF THE COMMITTEE SUSTAINED THE POINT OF ORDER. 

"THE BILL WENT TO THE SENATE AND THE SUSPENSION WAS NOT PLACED IN THE
BILL.  THE SECOND DEFICIENCY APPROPRIATION BILL PASSED THE HOUSE AND
WENT OVER TO THE SENATE.  THIS AMENDMENT WAS PLACED IN THERE.  IT WAS
CLEARLY SUBJECT TO A POINT OF ORDER IN THE SENATE, BUT THE POINT WAS
NOT MADE AGAINST IT. 

"IT NOW COMES BACK TO THE HOUSE FOR A SEPARATE VOTE AS AN AMENDMENT. 
IF WE VOTE FOR THIS AMENDMENT IT MEANS THE FURTHER SUSPENSION OF THE RE
ENLISTMENT BONUS TO THE ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE
CORPS, COAST AND GEODETIC SURVEY, AND COAST GUARD." 

MR. WOODRUM, WHO TOOK CHARGE OF EXPLAINING THE CONFERENCE REPORT TO
THE HOUSE, STATED (81 CONG. REC. 5090):  "IN THE FIRST PLACE, I WISH TO
EMPHASIZE THE FACT THAT THE LANGUAGE IN THE AMENDMENT ONLY ASKS TO
CONTINUE THIS LEGISLATION FOR THE FISCAL YEAR 1938.  ...  WE ASK IN
THIS AMENDMENT THAT DURING THE NEXT FISCAL YEAR THIS RE-ENLISTMENT
BONUS BE NOT ALLOWED; AND I MAY SAY, MR. SPEAKER, THIS IS NOT TAKING
ONE SOLITARY THING AWAY FROM ANY ENLISTED MAN IN THE ARMY, NAVY, OR
MARINE CORPS.  HE IS GETTING EXACTLY THE PAY THAT WAS PROMISED HIM, AND
EVERY MEMBER OF THE ARMY, THE NAVY, AND THE MARINE CORPS WHO ENLISTED
DURING THE LAST 3 YEARS ENLISTED WITH THE KNOWLEDGE THERE WAS NO RE
ENLISTMENT BONUS GOING TO BE PAID TO HIM IF HE DID RE-ENLIST. 

     .         .         .         .     . 

"  ...  THEY KNOW NOW WHAT THEY KNEW WHEN THEY RE-ENLISTED, THAT THE
TIME HAS NOT YET COME WHEN THE CONGRESS CAN OFFER A BONUS TO PEOPLE
WORKING FOR THE GOVERNMENT." 

FN3  SENATOR BYRNES, WHO HAD OFFERED THE AMENDMENT ON BEHALF OF THE
APPROPRIATIONS COMMITTEE, THEN ENGAGED IN THE FOLLOWING COLLOQUY WITH
SENATOR WALSH (83 CONG. REC. 9189-9190): 

MR. BYRNES.  ...  I WILL SAY TO THE SENATOR FROM MASSACHUSETTS, IN
THE LIGHT OF THE RULING OF THE CHAIR, THAT BEFORE THE CONGRESS ADJOURNS
I SHALL CERTAINLY MAKE AN EFFORT TO DO SOMETHING TO BRING ABOUT A
CHANGE, SO THAT THERE WILL NOT BE DISSATISFACTION AMONG THE VARIOUS
SERVICES.  IF THE BOUNTIES WERE ALL RESTORED, MILLIONS OF DOLLARS WOULD
BE INVOLVED.    MR. WALSH.  IS NOT THE SITUATION THAT UNDER EXISTING
LAW THERE IS NOW AN AUTHORIZATION OF FUNDS TO BE PAID TO THOSE WHO RE
ENLIST IN THE ARMY, NAVY, MARINE CORPS, AND PUBLIC HEALTH SERVICE?  IS
NOT THAT THE SITUATION? 

MR. BYRNES.  THERE IS AUTHORITY TO PAY THE BOUNTY.  IT HAS NOT BEEN
PAID FOR 6 YEARS. 

MR. WALSH.  NO FUNDS ARE AVAILABLE. 

MR. BYRNES.  NO FUNDS ARE AVAILABLE.    MR. WALSH.  THE HOUSE BILL
DID SEEK TO PROVIDE FUNDS FOR RE-ENLISTMENT BOUNTIES IN THE ARMY.  OF
COURSE, IT WOULD BE HIGHLY DISCRIMINATORY TO HAVE RE-ENLISTMENT
BOUNTIES PAID TO THOSE WHO RE-ENLIST IN THE ARMY, AND NONE PAID TO
THOSE WHO RE-ENLIST IN THE OTHER BRANCHES OF THE MILITARY SERVICE. 

MR. BYRNES.  IT WOULD CERTAINLY BE DISCRIMINATORY, AND CAUSE GREAT
DISSATISFACTION AMONG THE SERVICES. 

MR. WALSH.  IS THE BILL NOW IN SUCH SHAPE THAT NO FUNDS ARE PROVIDED
FOR RE-ENLISTMENT BOUNTIES FOR ANY BRANCH OF THE MILITARY SERVICE? 

MR. BYRNES.  THAT IS CORRECT. 

MR. WALSH.  WHAT THE SENATOR SOUGHT TO DO WAS TO HAVE CONGRESS
DECLARE AS ITS POLICY THAT IT DID NOT INTEND IN THE FUTURE TO PAY SUCH
RE-ENLISTMENT BOUNTIES, SO AS TO PREVENT POSSIBLE CLAIMS; IS NOT THAT
TRUE? 

MR. BYRNES.  MR. PRESIDENT, THE SOLE POSITION OF THE COMMITTEE IS
THAT NO FUNDS BEING PROVIDED, WE SHOULD NOT LEAVE OPEN THE OPPORTUNITY
FOR NUMBERS OF PERSONS TO FILE CLAIMS IN THE COURT OF CLAIMS IN BEHALF
OF MEN WHO RE-ENLIST, WITH THE RESULT THAT A YEAR FROM NOW, OR 2 YEARS
FROM NOW, SOME MEN WOULD RECEIVE THE RE-ENLISTMENT BOUNTY OR SOME PART
OF IT, AFTER THE ATTORNEYS RECEIVED THEIR FEES. 

MR. WALSH.  I THINK I UNDERSTAND. 

FN4  THE DEBATE IN THE SENATE WAS AS FOLLOWS (83 CONG. REC. 9512): 

MR. WALSH.  MR. PRESIDENT, I UNDERSTAND THAT THE BILL AS IT PASSED
THE HOUSE CONTAINED A PROVISION FOR THE USE OF FUNDS FROM THIS
APPROPRIATION FOR RE-ENLISTMENTS IN THE ARMY, AND NO PROVISIONS WERE
MADE FOR THE USE OF ANY OF THE APPROPRIATION FOR THE PAYMENT OF RE
ENLISTMENTS IN THE NAVY, THE MARINE CORPS, OR THE COAST GUARD. 

MR. ADAMS.  THAT IS CORRECT. 

MR. WALSH.  THE PURPOSE OF THE AMENDMENT IS TO ELIMINATE THE
PROVISION FOR PAYMENT IN CASE OF RE-ENLISTMENTS IN THE ARMY BECAUSE IT
IS DISCRIMINATORY AGAINST THE OTHER SERVICES AND CIVIL FORCES, WHICH
FORMERLY RECEIVED RE-ENLISTMENT PAY AND ALLOWANCES. 

MR. ADAMS.  THAT IS CORRECT, AND IT IS TO OPEN THE WAY FOR STATUTORY
CLEARING OF THE WHOLE SITUATION. 

FN5  COMPARE LUCE, LEGISLATIVE PROBLEMS (1935), PP. 421 ET SEQ.,
432. 

FN6  "WHERE THE MIND LABOURS TO DISCOVER THE DESIGN OF THE
LEGISLATURE, IT SEIZES EVERY THING FROM WHICH AID CAN BE DERIVED  ...
"  UNITED STATES V. FISHER, 2 CRANCH 358, 386. 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS, MR. JUSTICE STONE AND MR.
JUSTICE ROBERTS ARE OF OPINION THAT THE JUDGMENT SHOULD BE AFFIRMED ON
THE VIEWS EXPRESSED BY THE COURT OF CLAIMS. 
..END :














DAMPSKIBSSELSKABET V. OIL CO., 310 U.S. 268 


NO. 662.  ARGUED APRIL 1, 1940.  - DECIDED MAY 20, 1940.  - 106 F.2D
896, AFFIRMED. 


1.  WHERE, BY THE TERMS OF A CHARTER PARTY, THE CHARTERER HAS THE
DIRECTION AND CONTROL OF THE VESSEL, AND THERE IS NO PROHIBITION
AGAINST THE CREATION OF LIENS FOR NECESSARY SUPPLIES ORDERED BY THE
CHARTERER, ONE WHO ON THE ORDER OF THE CHARTERER SUPPLIES FUEL OIL TO
THE VESSEL IS ENTITLED TO A MARITIME LIEN, EVEN THOUGH THE CHARTER
REQUIRES THE CHARTERER TO "PROVIDE AND PAY FOR" FUEL.  CONSTRUING THE
ACT OF JUNE 23, 1910, AS AMENDED.  PP. 271, 275. 

SEMBLE, WHERE THE CHARTER PARTY PROHIBITS THE CREATION OF A LIEN FOR
SUPPLIES ORDERED BY THE CHARTERER, NO LIEN WILL ATTACH. 

2.  THE FACT THAT THE SUPPLIER HAD A GENERAL CONTRACT WITH THE
CHARTERER TO SUPPLY "THE FUEL OIL REQUIREMENTS OF ANY AND ALL VESSELS
OWNED, CHARTERED, OR OPERATED" BY THE LATTER, HELD NOT TO DEFEAT THE
LIEN, WHERE SUCH CONTRACT DID NOT PROVIDE THAT THE OIL SHOULD BE
SUPPLIED ON THE SOLE CREDIT OF THE CHARTERER OR NEGATIVE THE CREATION
OF MARITIME LIENS FOR SUPPLIES ACTUALLY FURNISHED TO THE VESSELS IN
SATISFYING THEIR REQUIREMENTS.  P. 276. 

3.  THE ACT OF JUNE 23, 1910, AS AMENDED, PROVIDES THAT "ANY PERSON
TO WHOM THE MANAGEMENT OF THE VESSEL AT THE PORT OF SUPPLY IS
INTRUSTED" SHALL BE PRESUMED TO HAVE AUTHORITY TO PROCURE SUPPLIES UPON
THE CREDIT OF THE VESSEL.  HELD THAT WHERE, APART FROM MERE NAVIGATION,
THE VESSEL IS PLACED UNDER THE DIRECTION AND CONTROL OF THE CHARTERER
AS THE HIRER OF THE VESSEL, WHO AS SUCH MAY DETERMINE TO WHAT PORT SHE
SHALL GO AND WHAT SHE SHALL CARRY, SUBJECT ONLY TO SPECIFIED
EXCEPTIONS, THEN THE CHARTERER, IN THE ABSENCE OF ANY PROVISION TO THE
CONTRARY, IS DEEMED TO BE INTRUSTED WITH THE VESSEL'S MANAGEMENT,
WITHIN THAT PROVISION OF THE ACT.  PP. 277, 279-280. 

DAMPSKIBSSELSKABET DANNEBROG, CLAIMANT, ET AL. V. SIGNAL OIL & GAS CO.
OF CALIFORNIA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 309 U.S. 644, TO REVIEW THE AFFIRMANCE OF DECREES IN
ADMIRALTY, 25 F.SUPP.  594, SUSTAINING MARITIME LIENS. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE RESPONDENT IS ENTITLED TO MARITIME LIENS
FOR FUEL OIL DELIVERED TO PETITIONERS' VESSELS. 

IN SEPTEMBER, 1932, RESPONDENT, SIGNAL OIL AND GAS COMPANY, MADE A
CONTRACT WITH THE ANGLO CANADIAN SHIPPING COMPANY, LIMITED, AGREEING TO
SELL FUEL OIL TO ANY VESSEL WHICH THE ANGLO CANADIAN COMPANY MIGHT OWN,
CHARTER OR OPERATE.  IN MAY, 1933, THE PARTIES MODIFIED THE CONTRACT SO
AS TO INCLUDE THE FUEL OIL REQUIREMENTS OF VESSELS OWNED, CHARTERED OR
OPERATED BY W. L. COMYN & SONS.  LATER, THE RESPECTIVE OWNERS OF THE
TWO VESSELS HERE IN QUESTION, THE "STJERNEBORG" AND THE "BRAND,"
CHARTERED THEM TO W. L. COMYN & SONS. 

THE CHARTERS WERE TIME CHARTERS ON THE SO-CALLED "GOVERNMENT FORM." 
THE OWNERS AGREED "TO LET" AND THE CHARTERERS "TO HIRE" THE VESSEL
"FROM THE TIME OF DELIVERY" FOR A SPECIFIED PERIOD, THE VESSEL TO BE
PLACED "AT THE DISPOSAL OF THE CHARTERERS" AT SUCH PLACE AS THE
CHARTERERS MAY DIRECT, BEING ON HER DELIVERY READY TO RECEIVE CARGO AND
TO BE EMPLOYED IN CARRYING MERCHANDISE AS STATED.  THE OWNERS AGREED TO
PROVIDE AND PAY FOR ALL PROVISIONS, WAGES AND SHIPPING AND DISCHARGING
FEES OF THE CAPTAIN, OFFICERS, ENGINEERS, FIREMEN AND CREW; TO PAY FOR
THE INSURANCE OF THE VESSEL, AND TO MAINTAIN HER IN A THOROUGHLY
EFFICIENT STATE IN HULL, MACHINERY AND EQUIPMENT.  THE CHARTERERS
AGREED TO "PROVIDE AND PAY FOR" COALS AND FUEL OIL, PORT CHARGES,
PILOTAGES, ETC., AND ALL OTHER USUAL EXPENSES EXCEPT AS BEFORE STATED. 
THE CHARTERERS WERE TO PAY "FOR THE USE AND HIRE" OF THE VESSEL A
STIPULATED AMOUNT COMMENCING "ON AND FROM THE DAY OF HER DELIVERY" AND
TO CONTINUE UNTIL "THE DAY OF HER REDELIVERY IN LIKE GOOD ORDER AND
CONDITION, ORDINARY WEAR AND TEAR EXCEPTED, TO THE OWNERS (UNLESS LOST)
AT A SAFE PORT" AS DESIGNATED.  IT WAS PROVIDED THAT THE CAPTAIN,
ALTHOUGH APPOINTED BY THE OWNERS, SHOULD BE "UNDER THE ORDERS AND
DIRECTION OF THE CHARTERERS AS REGARDS EMPLOYMENT OR AGENCY"; AND THE
CHARTERERS WERE TO LOAD, STOW AND TRIM THE CARGO AT THEIR EXPENSE UNDER
THE SUPERVISION OF THE CAPTAIN.  IF THE CHARTERERS SHOULD HAVE REASON
TO BE DISSATISFIED WITH THE CONDUCT OF THE CAPTAIN, OFFICERS OR
ENGINEERS, THE OWNERS IF NECESSARY SHOULD MAKE A CHANGE IN THE
APPOINTMENTS.  THE CHARTERERS WERE ALLOWED TO APPOINT A SUPERCARGO TO
ACCOMPANY THE VESSEL AND "SEE THAT VOYAGES ARE PROSECUTED WITH THE
UTMOST DESPATCH."  IT WAS FURTHER PROVIDED THAT NOTHING IN THE CHARTER
SHOULD BE CONSTRUED AS A "DEMISE" AND THAT THE OWNERS WERE TO REMAIN
RESPONSIBLE FOR THE NAVIGATION OF THE VESSEL.  THE CHARTERS CONTAINED
NO PROHIBITION AGAINST THE CREATION OF LIENS FOR NECESSARY SUPPLIES
ORDERED BY THE CHARTERERS. 

RESPONDENT LIBELED THE VESSELS FOR FUEL OIL SUPPLIED TO THE VESSELS
RESPECTIVELY ON THE CHARTERERS' ORDER, AND THE OWNERS APPEARED AND
FILED ANSWERS ALLEGING THAT THE OIL WAS FURNISHED UPON THE CHARTERERS'
CREDIT AND NOT UPON THAT OF THE VESSEL. 

THE DISTRICT COURT SUSTAINED THE LIENS, 25 FED. SUPP. 594, AND THE
CIRCUIT COURT OF APPEALS AFFIRMED THE DECREES.  106 F.2D 896.  BECAUSE
OF AN ALLEGED CONFLICT WITH DECISIONS OF THE CIRCUIT COURT OF APPEALS
OF THE FIFTH CIRCUIT IN THE CRATHEUS, 263 F. 693, AND PENSACOLA
SHIPPING CO. V. UNITED STATES SHIPPING BOARD, 277 F. 889, CERTIORARI
WAS GRANTED, 309 U.S. 644. 

THE CIRCUIT COURT OF APPEALS IN THE INSTANT CASE FOLLOWED ITS
DECISIONS IN THE PORTLAND, 273 F. 401, AND THE GOLDEN GATE, 52 F.2D
397.  THE GOLDEN GATE WAS A CASE OF A TIME CHARTER WHICH REQUIRED THE
CHARTERER TO PROVIDE AND PAY FOR FUEL OIL BUT CONTAINED NO PROVISION
DENYING THE RIGHT OF THE CHARTERER TO BIND THE SHIP FOR NECESSARY
SUPPLIES.  THE COURT SAID THAT IN THE ABSENCE OF SUCH A PROHIBITION THE
SHIP WAS BOUND WHETHER THE SUPPLIES WERE ORDERED BY THE CHARTERER OR BY
THE MASTER.  THE RULING WAS REITERATED BY THE SAME COURT IN THE LUDDCO,
66 F.2D 997, 998.  IN FURTHER SUPPORT OF ITS POSITION, RESPONDENT CITES
THE FOLLOWING CASES FROM OTHER CIRCUITS:  THE EVEROSA, C.C.A. 1ST, 93
F.2D 732, 735; THE J. W. HENNESSY, C.C.A.2D, 57 F.2D 77, 79, 80; THE
ANNA E. MORSE, C.C.A. 3D, 286 F. 794, 798; MUNSON INLAND WATER LINES V.
SEIDL, C.C.A.7TH, 71 F.2D 791, 793. 

PETITIONERS RELY UPON OUR DECISIONS IN THE KATE, 164 U.S. 458, 464,
AND THE VALENCIA, 165 U.S. 264, TO THE EFFECT THAT WHERE THE CHARTER
PARTY REQUIRES THE CHARTERER TO PROVIDE AND PAY FOR SUPPLIES, THE
SUPPLIER BEING CHARGED WITH KNOWLEDGE OF THE PROVISIONS OF THE CHARTER
PARTY WAS NOT ENTITLED TO A MARITIME LIEN FOR SUPPLIES FURNISHED TO THE
VESSEL UPON THE ORDER OF THE CHARTERER. 

THESE DECISIONS, HOWEVER, WERE PRIOR TO THE PASSAGE OF THE ACT OF
JUNE 23, 1910, 36 STAT. 604, WHICH GOVERNS THE PRESENT CASE.  THE TEXT
OF THE ACT, AS AMENDED, IS SET FORTH IN THE MARGIN.  FN1 ITS PURPOSE
WAS TO SIMPLIFY AND CLARIFY THE RULES AS TO MARITIME LIENS AS TO WHICH
THERE HAD BEEN MUCH CONFUSION.  THE ACT DID AWAY WITH THE ARTIFICIAL
DISTINCTION BETWEEN REPAIRS, SUPPLIES, ETC., FURNISHED IN HOME PORTS
AND THOSE FURNISHED IN FOREIGN PORTS.  IT DID AWAY WITH THE DOCTRINE
THAT WHEN THE OWNER OF A VESSEL CONTRACTED IN PERSON FOR NECESSARIES OR
WAS PRESENT IN THE PORT WHEN THEY WERE ORDERED, IT WAS PRESUMED THAT
THE MATERIAL-MAN DID NOT INTEND TO RELY UPON THE VESSEL'S CREDIT.  IT
SUBSTITUTED A FEDERAL STATUTE FOR NUMEROUS STATE STATUTES PURPORTING TO
CONFER LIENS.  PIEDMONT COAL CO. V. SEABOARD FISHERIES CO., 254 U.S. 1,
11.  FN2 

IN SO DOING, THE STATUTE PROVIDED A SERIES OF SIMPLE AND
COMPREHENSIVE RULES.  WHILE IT WAS SAID NOT TO BE INTENDED TO CHANGE
THE GENERAL PRINCIPLES OF THE LAW OF MARITIME LIENS,  FN3  IT WAS
INTENDED TO OPERATE IN AID OF THOSE WHO SUPPLY NECESSARIES TO SHIPS AND
IT CORRESPONDINGLY RESTRICTED THE RIGHTS OF THE OWNERS OF THE VESSELS. 
ANY PERSON FURNISHING REPAIRS, SUPPLIES, ETC., TO A VESSEL WHETHER
FOREIGN OR DOMESTIC, "UPON THE ORDER OF THE OWNER" OR "OF A PERSON
AUTHORIZED BY THE OWNER," IS TO HAVE A MARITIME LIEN WHICH MAY BE
ENFORCED BY SUIT IN REM.  IT IS NOT NECESSARY TO ALLEGE OR PROVE THAT
CREDIT WAS GIVEN TO THE VESSEL.  THE "MANAGING OWNER, SHIP'S HUSBAND,
MASTER, OR ANY PERSON TO WHOM THE MANAGEMENT OF THE VESSEL AT THE PORT
OF SUPPLY IS INTRUSTED,"  IS PRESUMED TO HAVE AUTHORITY TO PROCURE THE
NECESSARIES.  THE OFFICERS AND AGENTS THUS SPECIFIED INCLUDE THOSE
APPOINTED "BY A CHARTERER, BY AN OWNER PRO HAC VICE, OR BY AN AGREED
PURCHASER IN POSSESSION OF THE VESSEL."  THESE BROAD PROVISIONS ARE
THEN SUBJECTED TO THE QUALIFICATION THAT NOTHING IN THE ACT SHOULD BE
CONSTRUED TO CONFER A LIEN "WHEN THE FURNISHER KNEW, OR BY EXERCISE OF
REASONABLE DILIGENCE COULD HAVE ASCERTAINED, THAT BECAUSE OF THE TERMS
OF A CHARTER PARTY, AGREEMENT FOR SALE OF THE VESSEL, OR FOR ANY OTHER
REASON, THE PERSON ORDERING THE REPAIRS, SUPPLIES, OR OTHER NECESSARIES
WAS WITHOUT AUTHORITY TO BIND THE VESSEL THEREFOR." 

DESPITE THE AIM THUS TO PROVIDE SIMPLE AND CLEAR RULES, THERE HAS
BEEN NO LITTLE CONTRARIETY OF OPINION IN THE APPLICATION OF THE
STATUTE, - WELL ILLUSTRATED BY THE CONFLICTING DECISIONS TO WHICH WE
HAVE REFERRED WITH RESPECT TO THE EXISTENCE OF MARITIME LIENS WHERE
SUPPLIES HAVE BEEN ORDERED BY A CHARTERER WHO HAS AGREED WITH THE OWNER
TO PROVIDE AND PAY FOR THEM.  AS, IN SUCH A CASE, THE SUPPLIES ARE
FURNISHED ON THE CHARTERER'S ORDER, THERE IS NO QUESTION THAT THE
SUPPLIER IS CHARGED WITH KNOWLEDGE OF THE PROVISIONS OF THE CHARTER
WHEN HE EITHER KNOWS THEM OR BY REASONABLE DILIGENCE COULD HAVE
ASCERTAINED THEM.  SO FAR, THE PRINCIPLE OF THE KATE AND THE VALENCIA,
SUPRA, IS EMBODIED IN THE STATUTE.  BUT IT DOES NOT FOLLOW THAT, IN THE
LIGHT OF THE STATUTE, THE KATE AND THE VALENCIA CAN STILL BE REGARDED
AS AUTHORITY FOR THE VIEW THAT THE MERE FACT THAT THE CHARTERER IS
BOUND TO PROVIDE AND PAY FOR THE SUPPLIES EXCLUDES THE SUPPLIER FROM
HAVING A MARITIME LIEN WHEN THE CHARTER PARTY CONTAINS NO PROHIBITION
AGAINST ITS CREATION. 

WE THINK THAT OUR DECISION IN THE SOUTH COAST, 251 U.S. 519,  FN4
NEGATIVES SUCH A CONCLUSION.  THAT WAS A CASE OF A BARE-BOAT CHARTER
WHICH PROVIDED THAT THE CHARTERER SHOULD PAY FOR ALL SUPPLIES AND ALL
OTHER CHARGES AND SAVE THE OWNER HARMLESS FROM ALL LIENS.  THE SUPPLIES
WERE ORDERED BY THE MASTER, BUT, THOUGH APPOINTED BY THE OWNER, THE
MASTER WAS UNDER THE ORDERS OF THE CHARTERER AND THUS THE MASTER'S
ORDERS WERE THE CHARTERER'S ORDERS.  WHEN THE SUPPLIES WERE ORDERED,
REPRESENTATIVES OF THE OWNER AT THE PORT OF SUPPLY WARNED THE SUPPLIER
THAT THE VESSEL WAS UNDER CHARTER AND THAT HE MUST NOT FURNISH THE
SUPPLIES ON THE CREDIT OF THE VESSEL.  IF THE OWNER HAD POWER TO
PREVENT THE ATTACHING OF A LIEN BY THIS WARNING, THE OWNER HAD DONE SO.
BUT WHILE UNDER THE TERMS OF THE CHARTER PARTY IT WAS CLEARLY THE DUTY
OF THE CHARTERER TO PROVIDE AND PAY FOR THE SUPPLIES AND TO SAVE THE
OWNER HARMLESS, THIS WAS HELD NOT TO PRECLUDE THE CREATION OF A
MARITIME LIEN.  THE KATE AND THE VALENCIA WERE CITED UNAVAILINGLY. 
WHEN THE CHARTER PARTY WAS EXAMINED TO SEE IF IT PROHIBITED LIENS IT
WAS FOUND THAT IT DID NOT DO SO; IT RECOGNIZED THE POSSIBILITY OF
LIENS.  IT PROVIDED THAT THE OWNER MIGHT RETAKE THE VESSEL IN CASE OF
THE FAILURE OF THE CHARTERER TO DISCHARGE WITHIN THIRTY DAYS ANY DEBT
WHICH WAS A LIEN UPON IT AND ALSO FOR A SURRENDER OF THE VESSEL FREE OF
LIENS UPON THE CHARTERER'S FAILURE TO MAKE CERTAIN PAYMENTS. 

WE THINK THAT THE FAIR IMPORT OF OUR DECISION IN THE SOUTH COAST IS
THAT WHEN THE CHARTERER HAS THE DIRECTION AND CONTROL OF THE VESSEL AND
IT IS HIS BUSINESS TO PROVIDE NECESSARY SUPPLIES, AND THE CHARTER PARTY
DOES NOT PROHIBIT THE CREATION OF A MARITIME LIEN THEREFOR, THE
MATERIALMAN IS ENTITLED TO FURNISH THE SUPPLIES UPON THE CREDIT OF THE
VESSEL AS WELL AS UPON THAT OF THE CHARTERER AND THE LIEN IS NOT
DEFEATED BY THE FACT THAT THE CHARTERER HAS PROMISED THE OWNER TO PAY. 

WHEN, HOWEVER, THE CHARTER PARTY, WITH KNOWLEDGE OF WHICH THE
MATERIAL-MAN IS CHARGED, PROHIBITS THE CREATION OF A LIEN FOR SUPPLIES
ORDERED BY THE CHARTERER OR THE CHARTERER'S REPRESENTATIVE, NO LIEN
WILL ATTACH.  THIS WAS DECIDED IN UNITED STATES V. CARVER, 260 U.S.
482.  THAT WAS A CASE OF VESSELS OWNED BY THE UNITED STATES.  THE
CHARTERER, WHOSE REPRESENTATIVE HAD ORDERED THE SUPPLIES, HAD AGREED
THAT IT WOULD "NOT SUFFER NOR PERMIT ANY LIEN" WHICH MIGHT HAVE
PRIORITY OVER THE TITLE AND INTEREST OF THE OWNER.  THE QUESTION WAS
WHETHER A MARITIME LIEN WOULD HAVE ARISEN AGAINST THE VESSELS IF THEY
HAD BEEN PRIVATELY OWNED.  THE COURT, QUOTING THE PROVISION OF THE ACT
OF 1910 AS TO THE DUTY OF THE MATERIAL-MAN TO MAKE INQUIRY, SAID THAT
HE WAS NOT ENTITLED "TO REST UPON PRESUMPTIONS UNTIL HE IS PUT UPON
INQUIRY"; HE MUST INQUIRE.  "IF BY INVESTIGATION WITH REASONABLE
DILIGENCE THE MATERIAL-MAN COULD HAVE FOUND OUT THAT THE VESSEL WAS
UNDER CHARTER, HE WAS CHARGEABLE WITH NOTICE THAT THERE WAS A CHARTER;
IF IN THE SAME WAY HE COULD HAVE FOUND OUT ITS TERMS HE WAS CHARGEABLE
WITH NOTICE OF ITS TERMS."  THE COURT ADDED THAT THERE WOULD HAVE BEEN
NO DIFFICULTY IN FINDING OUT BOTH.  THE COURT FOUND A DIFFERENCE
BETWEEN THE LANGUAGE OF THE CHARTER PARTY IN THE CARVER CASE AND THAT
USED IN THE SOUTH COAST.  IN THE CARVER CASE "THE PRIMARY UNDERTAKING"
WAS THAT "A LIEN SHALL NOT BE IMPOSED."  THE LIEN WAS DENIED, NOT
BECAUSE THE CHARTERER WAS BOUND TO PROVIDE AND PAY FOR SUPPLIES, BUT
BECAUSE THE CHARTER PARTY PROHIBITED THE LIEN.  TO THE SAME EFFECT IS
THE DECISION IN THE CASE OF THE ST. JOHN'S.  COLONIAL BEACH CO. V.
QUEMAHONING COAL CO., 260 U.S. 707. 

AS, IN THE INSTANT CASE, THE CHARTER PARTIES CONTAINED NO PROVISION
PROHIBITING THE CREATION OF A MARITIME LIEN, WE ARE OF THE OPINION THAT
THE MERE FACT THAT THEY REQUIRED THE CHARTERERS TO PROVIDE AND PAY FOR
THE SUPPLIES DID NOT PREVENT THE LIENS FROM ATTACHING. 

THE ARGUMENT IS PRESSED THAT RESPONDENT WAS UNDER A GENERAL CONTRACT
TO SUPPLY "THE FUEL OIL REQUIREMENTS OF ANY AND ALL VESSELS OWNED,
CHARTERED, OR OPERATED" BY W.L. COMYN & SONS.  BUT THIS CONTRACT DID
NOT PROVIDE THAT THE OIL SHOULD BE SUPPLIED ON THE SOLE CREDIT OF COMYN
AS THE OWNER OR CHARTERER OF THE VESSELS OR NEGATIVE THE CREATION OF
MARITIME LIENS FOR SUPPLIES ACTUALLY FURNISHED TO THE VESSELS IN
SATISFYING THEIR REQUIREMENTS.  THE DECISIONS WHICH PETITIONER CITES
ARE NOT APPOSITE.  IN PIEDMONT COAL CO. V. SEABOARD FISHERIES CO.,
SUPRA, THE COAL COMPANY HAD MADE A CONTRACT WITH A CORPORATION, WHICH
OWNED BOTH STEAMERS AND FACTORIES, TO FURNISH SUCH COAL AS SHOULD BE
REQUIRED.  THE COURT OBSERVED THAT THE DIFFICULTY WHICH CONFRONTED THE
COAL COMPANY IN SEEKING TO ENFORCE A MARITIME LIEN DID NOT LIE IN THE
FACT THAT A CONTRACT HAD BEEN MADE FOR THE SUPPLY OF COAL.  "A VESSEL,"
SAID THE COURT, "MAY BE LIABLE IN REM FOR SUPPLIES, ALTHOUGH THE OWNER
CAN BE MADE LIABLE THEREFOR IN PERSONAM; SINCE THE DEALER MAY RELY UPON
THE CREDIT OF BOTH."  SO, THE COURT RECOGNIZED THAT IF IN THAT CASE
"THE COAL HAD BEEN FURNISHED TO THE SEVERAL VESSELS BY THE LIBELLANT,
MARITIME LIENS WOULD HAVE ARISEN AND COULD HAVE BEEN ESTABLISHED UNDER
THE STATUTE WITHOUT PROOF THAT CREDIT WAS GIVEN TO THE VESSELS."  THE
DIFFICULTY WHICH BLOCKED RECOVERY BY THE COAL COMPANY WAS "SOLELY THAT
IT DID NOT FURNISH COAL TO THE VESSELS."  THERE "WAS NO UNDERSTANDING
WHEN THE CONTRACT WAS MADE, OR WHEN THE COAL WAS DELIVERED BY THE
LIBELLANT, THAT ANY PART OF IT WAS FOR ANY PARTICULAR VESSEL OR EVEN
FOR THE VESSELS THEN COMPOSING THE FLEET.  AND IT WAS CLEARLY
UNDERSTOOD THAT THE PURCHASING CORPORATION WOULD APPLY PART OF THE COAL
TO A NON-MARITIME USE."  ID., PP. 10, 11, 13.  IN THE INSTANT CASE, THE
OIL WAS SUPPLIED EXCLUSIVELY FOR THE VESSELS IN QUESTION, WAS DELIVERED
DIRECTLY TO THE VESSELS AND WAS SO INVOICED; AND THERE WAS NOTHING IN
THE GENERAL CONTRACT TO THE EFFECT THAT THE SUPPLIES WERE TO BE
FURNISHED UPON THE EXCLUSIVE CREDIT OF W. L. COMYN & SONS AND NOT ALSO
UPON THE CREDIT OF THE VESSELS. 

IN THE OTHER CASE RELIED UPON, MARSHALL & CO. V. THE PRESIDENT
ARTHUR, 279 U.S. 564, THE POINT WAS THAT THE MARITIME LIEN HAD BEEN
WAIVED BY THE LIBELLANT UNDER AN AGREEMENT BY WHICH TRADE ACCEPTANCES
ENDORSED BY DESIGNATED PERSONS HAD BEEN RECEIVED; THAT "BY TAKING OTHER
AND DIFFERENT SECURITY, UPON WHICH IT RELIED, AND WHICH IT STILL
RETAINS, WITHOUT STIPULATING FOR THE RETENTION OF THE LIEN, IT HAS
WAIVED THE LIEN WHICH IT OTHERWISE WOULD HAVE HAD."  ID., P. 572.  IT
MAY BE NOTED THAT IN THE INSTANT CASE THERE WAS A CONTENTION THAT THE
LIENS HAD BEEN WAIVED BY THE RESPONDENT BY ENTERING INTO A CERTAIN
CREDITOR'S AGREEMENT AND BY ACCEPTING CERTAIN SECURITY.  BUT IT
APPEARED THAT IN THOSE TRANSACTIONS THE RIGHT TO THE LIENS ON THE
VESSELS HAD BEEN EXPRESSLY RESERVED.  THE COURT BELOW ACCORDINGLY RULED
THAT THERE HAD BEEN NO WAIVER AND ITS DECISION IN THAT RELATION HAS NOT
BEEN CHALLENGED HERE. 

THERE REMAINS THE CONTENTION THAT, APART FROM ANY PROHIBITION OF THE
CREATION OF LIENS, THE VESSELS COULD NOT BE BOUND FOR SUPPLIES ORDERED
BY THE CHARTERERS BECAUSE OF THE NATURE OF THE CHARTER PARTIES.  THERE
IS A PLAIN DISTINCTION BETWEEN A CASE OF A BARE-BOAT CHARTER, WHERE THE
CHARTERER MANS THE VESSEL, AND A CASE WHERE THE CHARTER PARTY IS A MERE
CONTRACT FOR THE CARRIAGE OF GOODS.  IN THE FORMER THERE IS A CLEAR
DEMISE; IN THE LATTER, THE CHARTERER IS IN SUBSTANCE ONLY A SHIPPER. 
FN5  THERE IS AN INTERMEDIATE CLASS OF CHARTERS WHICH HAS GIVEN RISE TO
MANY QUESTIONS IN VARIOUS SITUATIONS.  TIME CHARTERS OF THE SORT NOW
BEFORE US ARE IN THIS CLASS.  THE OWNER PROVIDES THE MASTER AND CREW
AND UNDERTAKES THE NAVIGATION OF THE VESSEL AND TO MAINTAIN HER IN AN
EFFICIENT CONDITION.  BUT THE MASTER ALTHOUGH APPOINTED BY THE OWNER,
IS PLACED "UNDER THE ORDERS AND DIRECTION OF THE CHARTERERS AS REGARDS
EMPLOYMENT OR AGENCY."  THE OWNERS AGREE "TO LET" THE VESSEL AND THE
CHARTERERS "TO HIRE" HER "FROM THE TIME OF DELIVERY" UNTIL THE DATE SET
FOR "HER REDELIVERY."  THE CHARTERERS ARE TO PROVIDE AND PAY FOR FUEL
SUPPLIES, PORT CHARGES, PILOTAGES, ETC. AND ALL OTHER EXPENSES EXCEPT
THOSE PERTAINING TO THE CAPTAIN, OFFICERS OR CREW. 

THERE IS THUS A DISTRIBUTION OF RESPONSIBILITY, AND LIABILITY OR THE
LEGAL CONSEQUENCES OF PARTICULAR CONDUCT WOULD BE DETERMINED
ACCORDINGLY.  WHILE THE OWNERS ASSUMED RESPONSIBILITY FOR THE
NAVIGATION OF THE VESSELS AND THEIR MAINTENANCE IN AN EFFICIENT STATE,
WE ARE NOT CONCERNED WITH ANY QUESTIONS RELATING TO FAULTS IN
NAVIGATION OR FAILURE IN MAINTENANCE.  THE MERE FACT THAT THE OWNERS
FURNISHED THE MASTER AND CREW CANNOT BE REGARDED AS DECISIVE OF THE
QUESTION BEFORE US.  SEE UNITED STATES V. SHEA, 152 U.S. 178, 190, 191;
UNITED STATES V. CORNELL STEAMBOAT CO., 267 U.S. 281.  ASIDE FROM THE
NAVIGATION OF THE VESSELS, THEY WERE PLACED UNDER THE CONTROL OF THE
CHARTERERS AND THE MASTER AND CREW WERE UNDER THEIR DIRECTIONS.  THE
VESSELS BY THE TERMS OF THE CHARTERS WERE DELIVERED TO THE CHARTERERS,
AND WHERE THE VESSELS WERE TO GO AND WHAT THEY WERE TO CARRY, WITHIN
THE BROAD LIMITS DESCRIBED IN THE CHARTERS, WERE DETERMINED BY THE
CHARTERERS. 

THE QUESTION WHETHER UNDER A CHARTER, CONTAINING THESE OR SIMILAR
PROVISIONS, THE MATERIAL-MAN MAY HAVE A LIEN FOR SUPPLIES FURNISHED ON
THE ORDER OF THE CHARTERER HAS GIVEN RISE TO CONFLICTING VIEWS  FN6
AND NO LITTLE CONFUSION HAS RESULTED. 

WE THINK THAT THIS CONFLICT MAY BE RESOLVED BY HAVING DUE REGARD TO
THE MANIFEST PURPOSE OF THE GOVERNING STATUTE.  THE ACT SAYS NOTHING
ABOUT TYPES OF CHARTERS.  IN SPEAKING OF THOSE WHO SHALL BE PRESUMED TO
HAVE AUTHORITY TO PROCURE SUPPLIES, THE STATUTE EXPRESSLY INCLUDES NOT
ONLY THE "SHIP'S HUSBAND" AND THE "MASTER" BUT "ANY PERSON TO WHOM THE
MANAGEMENT OF THE VESSEL AT THE PORT OF SUPPLY IS INTRUSTED," AND THESE
PERSONS ARE TO BE TAKEN TO INCLUDE SUCH OFFICERS AND AGENTS "WHEN
APPOINTED BY A CHARTERER, BY AN OWNER PRO HAC VICE, OR BY AN AGREED
PURCHASER IN POSSESSION OF THE VESSEL."  WE THINK THAT THE PURPOSE OF
THE STATUTE IS NOT PROPERLY SERVED BY CONSTRUING THE TERM "MANAGEMENT
OF THE VESSEL" AS REFERRING TO HER "NAVIGATION."  MANAGEMENT IS A
BROADER TERM CONNOTING DIRECTION AND CONTROL FOR THE PURPOSES FOR WHICH
THE VESSEL IS USED.  WHERE, AS IN THIS CASE, APART FROM MERE
NAVIGATION, THE VESSEL IS PLACED UNDER THE DIRECTION AND CONTROL OF THE
CHARTERER AS THE HIRER OF THE VESSEL, WHO AS SUCH MAY DETERMINE TO WHAT
PORT SHE SHALL GO AND WHAT SHE SHALL CARRY, SUBJECT ONLY TO SPECIFIED
EXCEPTIONS, WE THINK THE CHARTERER MUST BE DEEMED TO BE INTRUSTED WITH
THE VESSEL'S MANAGEMENT FOR THE PURPOSE OF APPLYING THE STATUTORY TEST
OF AUTHORITY TO OBTAIN NECESSARY SUPPLIES UPON THE CREDIT OF THE
VESSEL, IN THE ABSENCE OF A PROVISION TO THE CONTRARY. 

THE ORIGIN OF THE MARITIME LIEN IS THE NEED OF THE SHIP.  PIEDMONT
COAL CO. V. SEABOARD FISHERIES CO., SUPRA.  THE LIEN IS GIVEN FOR
SUPPLIES WHICH ARE NECESSARY TO KEEP THE SHIP GOING.  THE MATERIAL-MAN
WHEN FURNISHING SUCH SUPPLIES ON THE ORDER OF THE CHARTERER IS CHARGED
WITH KNOWLEDGE OF THE TERMS OF THE CHARTER PARTY WHEN HE CAN ASCERTAIN
THEM, BUT WHEN IT APPEARS THAT BY THESE TERMS THE CHARTERER HAS
DIRECTION AND CONTROL OF THE VESSEL AND THAT HE IS THE ONE TO OBTAIN
THE ESSENTIAL SUPPLIES, AND THAT THERE IS NO PROHIBITION OF THE
CREATION OF A MARITIME LIEN, THE MATERIAL-MAN IS PROTECTED BY THE TERMS
OF THE STATUTE.  HE FURNISHES THE SUPPLIES ON THE ORDER OF THE PERSON
AUTHORIZED TO OBTAIN THEM AND HE IS ENTITLED TO RELY ON THE CREDIT OF
THE VESSEL AS WELL AS UPON THE CREDIT OF THE ONE WHO GIVES THE ORDER. 

WE ARE OF THE OPINION THAT IT WOULD THWART THE PURPOSE OF THE STATUTE
TO COMPEL THE MATERIAL-MAN FURNISHING SUPPLIES TO THE VESSEL TO RESOLVE
THE AMBIGUITIES WHICH MAY BE FOUND IN SUCH CHARTERS AS THOSE HERE
INVOLVED.  THE STATUTE WAS INTENDED TO AFFORD THE MATERIAL-MAN A
REASONABLY CERTAIN CRITERION.  THE OWNER HAS A SIMPLE AND READY MEANS
OF PROTECTION.  ALL THAT IT IS NECESSARY FOR HIM TO DO, AS THE MATERIAL
MAN IN DEALING WITH THE CHARTERER IS CHARGED WITH NOTICE OF THE
CHARTER, IS TO PROVIDE THEREIN THAT THE CREATION OF MARITIME LIENS IS
PROHIBITED.  WHEN THE OWNER DOES NOT DO SO, HE SHOULD NOT BE HEARD TO
COMPLAIN WHEN IT APPEARS THAT IT IS THE CHARTERER'S BUSINESS TO OBTAIN
SUPPLIES TO KEEP THE VESSEL ON HER WAY AND THE CHARTER HAS NOT
PROHIBITED RELIANCE UPON THE CREDIT OF THE VESSEL. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  THE ACT OF JUNE 23, 1910, 36 STAT. 604, AS AMENDED BY THE ACT OF
JUNE 5, 1920, SEC. 30, 41 STAT. 1005, 46 U.S.C. 971-973, PROVIDES: 

"SEC. 971.  PERSONS ENTITLED TO LIEN.  ANY PERSON FURNISHING REPAIRS,
SUPPLIES, TOWAGE, USE OF DRY DOCK OR MARINE RAILWAY, OR OTHER
NECESSARIES, TO ANY VESSEL, WHETHER FOREIGN OR DOMESTIC, UPON THE ORDER
OF THE OWNER OF SUCH VESSEL, OR OF A PERSON AUTHORIZED BY THE OWNER,
SHALL HAVE A MARITIME LIEN ON THE VESSEL, WHICH MAY BE ENFORCED BY SUIT
IN REM, AND IT SHALL NOT BE NECESSARY TO ALLEGE OR PROVE THAT CREDIT
WAS GIVEN TO THE VESSEL. 

"SEC. 972.  PERSONS AUTHORIZED TO PROCURE REPAIRS, SUPPLIES, AND
NECESSARIES.  THE FOLLOWING PERSONS SHALL BE PRESUMED TO HAVE AUTHORITY
FROM THE OWNER TO PROCURE REPAIRS, SUPPLIES, TOWAGE, USE OF DRY DOCK OR
MARINE RAILWAY, AND OTHER NECESSARIES FOR THE VESSEL:  THE MANAGING
OWNER, SHIP'S HUSBAND, MASTER, OR ANY PERSON TO WHOM THE MANAGEMENT OF
THE VESSEL AT THE PORT OF SUPPLY IS INTRUSTED.  NO PERSON TORTIOUSLY OR
UNLAWFULLY IN POSSESSION OR CHARGE OF A VESSEL SHALL HAVE AUTHORITY TO
BIND THE VESSEL. 

"SEC. 973.  NOTICE TO PERSON FURNISHING REPAIRS, SUPPLIES, AND
NECESSARIES.  THE OFFICERS AND AGENTS OF A VESSEL SPECIFIED IN SECTION
972, SHALL BE TAKEN TO INCLUDE SUCH OFFICERS AND AGENTS WHEN APPOINTED
BY A CHARTERER, BY AN OWNER PRO HAC VICE, OR BY AN AGREED PURCHASER IN
POSSESSION OF THE VESSEL; BUT NOTHING IN THIS CHAPTER SHALL BE
CONSTRUED TO CONFER A LIEN WHEN THE FURNISHER KNEW, OR BY EXERCISE OF
REASONABLE DILIGENCE COULD HAVE ASCERTAINED, THAT BECAUSE OF THE TERMS
OF A CHARTER PARTY, AGREEMENT FOR SALE OF THE VESSEL, OR FOR ANY OTHER
REASON, THE PERSON ORDERING THE REPAIRS, SUPPLIES, OR OTHER NECESSARIES
WAS WITHOUT AUTHORITY TO BIND THE VESSEL THEREFOR." 

OTHER PROVISIONS, SECS. 974 AND 975, RELATE TO THE WAIVER OF LIENS
AND THE SUPERSEDING OF STATE LAWS. 

FN2  SEE, ALSO, THE YANKEE, 233 F. 919, 924; THE OCEANA, 244 F. 80,
82; SENATE REPORT, NO. 831, 61ST CONG., 2D SESS.; HOUSE REPORT, NO.
772, 61ST CONG., 2D SESS. 

FN3  SENATE REPORT, NO. 831, 61ST CONG., 1ST SESS.  MARSHALL & CO. V.
THE PRESIDENT ARTHUR, 279 U.S. 564, 568. 

FN4  THE FACTS ARE MORE FULLY SET FORTH IN THE OPINION OF THE CIRCUIT
COURT OF APPEALS.  THE SOUTH COAST, 247 F. 84. 

FN5  SEE REED V. UNITED STATES, 11 WALL.  591, 600; LEARY V. UNITED
STATES, 14 WALL.  607, 610; UNITED STATES V. SHEA, 152 U.S. 178, 189
191; THE BARNSTABLE, 181 U.S. 464, 468. 

FN6  SEE, E.G., UPHOLDING THE LIEN; THE INDIA, 14 F. 476, 16 F. 262;
THE BOMBAY, 38 F. 512, 863; THE GEORGE DUMOIS, 68 F. 926; THE ANNA E.
MORSE, 286 F. 794; THE A. S. SHERMAN, 51 F.2D 782; THE GOLDEN GATE, 52
F.2D 397; THE EVEROSA, 93 F.2D 732.  SEE, E. G., CONTRA:  THE CRATHEUS,
263 F. 693; PENSACOLA SHIPPING CO. V. U.S. SHIPPING BOARD, 277 F. 889;
THE THORDIS, 290 F. 255; THE VILLE DE DJIBOUTI, 295 F. 869; THE PAJALA,
7 F.SUPP.  618; THE DICTATOR, 18 F.2D 131.  COMPARE, THE J. W.
HENNESSY, 57 F.2D 77, 80. 
..END :




















SONTAG STORES CO. V. NUT CO., 310 U.S. 281 


NO. 671.  ARGUED APRIL 24, 1940.  - DECIDED MAY 20, 1940.  - 107 F.2D
318, REVERSED. 


1.  ONE WHO, SUBSEQUENTLY TO THE ISSUANCE OF A PATENT BUT PRIOR TO THE
FILING OF AN APPLICATION FOR A REISSUE PATENT ON BROADENED CLAIMS, PUT
INTO USE A MACHINE WHICH IT IS ALLEGED INFRINGES THE REISSUE PATENT,
THOUGH IT DOES NOT INFRINGE THE ORIGINAL PATENT, HELD, IN THE ABSENCE
OF FRAUD OR BAD FAITH, TO HAVE ACQUIRED INTERVENING RIGHTS WHICH BARRED
INJUNCTIVE RELIEF AGAINST CONTINUED USE OF THE ACCUSED MACHINE.  PP.
282, 293-295. 

2.  THAT AT THE TIME THE ACCUSED MACHINE WAS FIRST PUT INTO USE THE
ALLEGED INFRINGER WAS WITHOUT ACTUAL KNOWLEDGE OF THE ORIGINAL PATENT,
DOES NOT DEFEAT THE CLAIM OF INTERVENING RIGHTS.  P. 295. 

3.  ASSUMED, BUT NOT DECIDED, THAT (APART FROM THE QUESTION OF
INTERVENING RIGHTS) THE REISSUE PATENT HERE INVOLVED WAS VALID AND
INFRINGED.  P. 285. 

SONTAG CHAIN STORES CO., LTD. V. NATIONAL NUT COMPANY OF CALIFORNIA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 309 U.S. 645, TO REVIEW THE REVERSAL OF A DECREE DENYING
AN INJUNCTION TO RESTRAIN ALLEGED INFRINGEMENT OF A PATENT. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS DECLARED RESPONDENT'S REISSUE PATENT NO.
20,024, FOR A NUT TREATING APPARATUS, VALID AND INFRINGED BY
PETITIONER'S USE OF THE ACCUSED MACHINE, AND REJECTED THE DEFENSE OF
INTERVENING RIGHTS.  THE RECORD REQUIRES US TO CONSIDER WHAT EFFECT AN
ENLARGED INCLUSIVE REISSUE CLAIM HAS UPON THE USE OF A MACHINE
MANUFACTURED AND OPERATED AFTER GRANT OF THE ORIGINAL PATENT WITHOUT
INFRINGING IT, BUT WHICH DOES COME WITHIN THE ENLARGEMENT. 

KOHLER'S PATENT - NO. 1,958,409 - WITH FOUR NARROW CLAIMS, ISSUED MAY
15, 1934. 

PETITIONER PROCURED AND BEGAN TO USE THE MACHINE HERE ACCUSED ABOUT
APRIL 1, 1935.  IT FIRST OBTAINED ACTUAL KNOWLEDGE OF THE ORIGINAL
PATENT OCTOBER 8, 1935 WHEN NOTICE OF INFRINGEMENT WAS RECEIVED. 
NOTHING SHOWS EARLIER KNOWLEDGE BY THE MANUFACTURER WHO BEGAN TO MAKE
AND SELL LIKE MACHINES NOT LATER THAN AUGUST 1934. 

BY SUIT FILED IN THE DISTRICT COURT, OCTOBER 19, 1935, RESPONDENT
CHARGED PETITIONER WITH INFRINGING THE ORIGINAL PATENT, AND ASKED
APPROPRIATE RELIEF.  INFRINGEMENT WAS DENIED BY ANSWER, NOVEMBER 22,
1935. 

JANUARY 15, 1936 RESPONDENT APPLIED FOR AND ON JUNE 30, 1936 OBTAINED
A REISSUE PATENT - NO. 20,024 - WITH SEVENTEEN CLAIMS.  THE FIRST FOUR
WERE IDENTICAL WITH THE ORIGINAL ONES; THIRTEEN OF BROADER SCOPE COVER
PETITIONER'S MACHINE.  RESPONDENT WAS MOVED TO OBTAIN THE REISSUE BY
PETITIONER'S USE OF THE ACCUSED MACHINE. 

JANUARY 26, 1937 RESPONDENT BEGAN ANOTHER PROCEEDING CHARGING
INFRINGEMENT OF THE ENLARGED CLAIMS.  PETITIONER'S ANSWER RELIED UPON
INTERVENING RIGHTS ACQUIRED THROUGH PUBLIC USE WITHOUT VIOLATING THE
ORIGINAL PATENT; ALSO, INVALIDITY OF THE REISSUE BECAUSE OF LACHES. 
THE TWO SUITS WERE CONSOLIDATED; CLAIMS ONE TO FOUR WERE NOT RELIED ON.
A SINGLE DECREE WENT FOR PETITIONER.  BOTH BILLS WERE DISMISSED. 

INFRINGEMENT OF RESPONDENT'S DESIGN PATENT NO. 89,347 - FEBRUARY 28,
1933 - WAS ALLEGED, BUT BOTH COURTS DECLARED IT NOT INFRINGED.  NO
POINT IN RESPECT OF IT IS BEFORE US. 

THE DISTRICT COURT HELD - "THAT WITH RESPECT TO KOHLER REISSUE
LETTERS PATENT NO. 20,024 IN SUIT, THIS DEFENDANT AND THOSE IN PRIVITY
WITH IT, INCLUDING THE MANUFACTURER OF THE MACHINE IN QUESTION,
ACQUIRED INTERVENING RIGHTS WHICH IN EQUITY PLANTIFF MAY NOT NOW
DISTURB."  THE CIRCUIT COURT OF APPEALS REVERSED AND DIRECTED A
REMAND.  107 F.2D 318. 

THE CAUSE IS HERE BY CERTIORARI.  PETITIONER ASSERTS THE REISSUE
PATENT IS VOID BECAUSE OF LACHES; ALSO THAT BY REASON OF ACQUIRED
INTERVENING RIGHTS, USE OF THE ACCUSED MACHINE MAY CONTINUE. 

THE PROVISION CONCERNING REISSUES IN THE PRESENT PATENT ACT, SEC.
4916 REVISED STATUTES AS AMENDED BY ACT MAY 24, 1928, C. 730, 45 STAT.
732; U.S.C. TITLE 35, SEC. 64, IS COPIED IN THE MARGIN.  FN1  IT
DERIVES THROUGH THE ACTS JULY 3, 1832, C. 162, SEC. 3, 4 STAT. 559;
JULY 4, 1836, C. 357, SEC. 13, 5 STAT. 117, 122; MARCH 3, 1837, C. 45,
SEC. 5, 5 STAT. 191, 192; JULY 8, 1870, C. 230, SEC. 53, 16 STAT. 198,
205. 

THE REISSUE PROVISION, ACT 1832, WAS SUPPLANTED WITHOUT CHANGE
PRESENTLY IMPORTANT BY THE CORRESPONDING ONE IN THE 1836 ACT.  THIS WAS
SUBSTANTIALLY REENACTED IN 1870.  MODIFICATIONS BY THE 1928 ACT ARE NOT
IMPORTANT HERE.  STIMPSON V. WEST CHESTER RAILROAD CO., (1846) 4 HOW. 
380, 402; PARKER & WHIPPLE CO. V. YALE CLOCK CO., (1887) 123 U.S. 87,
96; WALKER ON PATENTS, DELLER'S EDITION (1937), VOL. 2, P. 1342;
ROBINSON ON PATENTS (1890) VOL. 2, SEC. 653 ET SEQ. 

THESE PROVISIONS HAVE OFTEN BEEN BEFORE THE COURTS AND THERE ARE
SHARPLY DIFFERING VIEWS CONCERNING THEM.  SOME OF THE PERTINENT CASES
ARE NOTED BELOW.  FN2 

THE CIRCUIT COURT OF APPEALS AFTER HOLDING THE ENLARGED REISSUE
CLAIMS VALID AND INFRINGED FURTHER DECLARED - "IN THE INSTANT CASE
THERE WAS ADMITTEDLY NO KNOWLEDGE OF OR RELIANCE ON THE SCOPE OF
PLAINTIFF'S PATENT, AND NO FACTS CREATING AN ESTOPPEL.  FURTHERMORE,
DEFENDANT HAS NOT SHOWN A TWO-YEARS USER OF THE INFRINGING PATENT.  THE
DEFENSE OF INTERVENING RIGHTS IS DENIED." 

FOR PRESENT PURPOSES WE ASSUME, WITHOUT DECIDING, CORRECTNESS OF THE
CONCLUSION THAT THE REISSUE PATENT WAS VALID AND INFRINGED, AND UPON
THAT ASSUMPTION, WE COME TO CONSIDER THE EFFECT OF THE ENLARGED CLAIMS
UPON PETITIONER'S MACHINE, LAWFULLY MANUFACTURED AND OPERATED PRIOR TO
THEIR INCEPTION.  THERE IS NOTHING TO SHOW DISHONESTY, BAD FAITH, OR
DECEPTIVE INTENTION UPON PETITIONER'S PART. 

COUNSEL FOR RESPONDENT INSIST THE DENIAL OF INTERVENING RIGHTS FINDS
ADEQUATE SUPPORT IN STIMPSON V. WEST CHESTER RAILROAD CO., SUPRA;
BATTIN V. TAGGERT, SUPRA; WHITE V. DUNBAR, SUPRA; TOPLIFF V. TOPLIFF,
SUPRA; ABERCROMBIE & FITCH CO. V. BALDWIN, SUPRA.  THE FIRST TWO ARE IN
POINT; BUT WHEN CONSIDERED IN CONNECTION WITH LATER OPINIONS ARE NOT
DECISIVE OF THE PRESENT ISSUE.  THE OTHER CASES RELIED UPON ARE NOT
ESPECIALLY HELPFUL. 

THE PATENT ACT OF 1832 WAS A RESPONSE TO GRANT V. RAYMOND, (FEB. 23,
1832) 6 PET. 218, 242, 243-244.  THE OPINION THERE (CHIEF JUSTICE
MARSHALL) AFFIRMED THE POWER OF THE SECRETARY TO GRANT AN APPLICATION
DATED APRIL 20, 1825 FOR REISSUE OF A PATENT DATED AUGUST 11, 1821
ALTHOUGH NOT EXPRESSLY AUTHORIZED SO TO DO, UPON THE GROUND THAT THIS
WAS NECESSARY IN ORDER TO EFFECT THE PURPOSES OF THE PATENT ACT BY
SECURING TO INVENTORS FULL BENEFIT OF THEIR DISCOVERIES THROUGH
"FAITHFUL EXECUTION OF THE SOLEMN PROMISE MADE BY THE UNITED STATES." 
THE COURT SAID - 

"AN OBJECTION MUCH RELIED ON IS, THAT AFTER THE INVENTION HAS BEEN
BROUGHT INTO GENERAL USE, THOSE SKILLED IN THE ART OR SCIENCE WITH
WHICH IT IS CONNECTED, PERCEIVING THE VARIANCE BETWEEN THE
SPECIFICATION AND THE MACHINE, AND AVAILING THEMSELVES OF IT, MAY HAVE
CONSTRUCTED, SOLD AND USED THE MACHINE WITHOUT INFRINGING THE LEGAL
RIGHTS OF THE PATENTEE, OR INCURRING THE PENALTIES OF THE LAW.  THE NEW
PATENT WOULD RETRO-ACT ON THEM, AND EXPOSE THEM TO PENALTIES TO WHICH
THEY WERE NOT LIABLE WHEN THE ACT WAS COMMITTED." 

"THIS OBJECTION IS MORE FORMIDABLE IN APPEARANCE THAN IN REALITY.  IT
IS NOT PROBABLE THAT THE DEFECT IN THE SPECIFICATION CAN BE SO APPARENT
AS TO BE PERCEIVED BY ANY BUT THOSE WHO EXAMINE IT FOR THE PURPOSE OF
PIRATING THE INVENTION.  THEY ARE NOT ENTITLED TO MUCH FAVOUR.  BUT THE
ANSWER TO THE OBJECTION IS, THAT THIS DEFENCE IS NOT MADE IN THIS CASE;
AND THE OPINION OF THE CIRCUIT COURT DOES NOT GO SO FAR AS TO SAY THAT
SUCH A DEFENCE WOULD NOT BE SUCCESSFUL.  THAT QUESTION IS NOT BEFORE
THE COURT, AND IS NOT INVOLVED IN THE OPINION WE ARE CONSIDERING.  THE
DEFENCE WHEN TRUE IN FACT MAY BE SUFFICIENT IN LAW, NOTWITHSTANDING THE
VALIDITY OF THE NEW PATENT." 

UNDER THE TWO YEAR RULE OF MILLER V. BRASS CO., (1881) SUPRA, NOTE 2,
A REISSUE PATENT GRANTED IN CIRCUMSTANCES LIKE THOSE DISCLOSED BY THE
REPORT OF GRANT'S CASE, NOW WOULD BE DECLARED INVALID. 

STIMPSON V. WEST CHESTER RAILROAD CO., (1846) SUPRA, NOTE 2, INVOLVED
INFRINGEMENT OF A REISSUE, GRANTED IN 1835, OF AN ORIGINAL PATENT DATED
IN 1831.  THE TRIAL JUDGE CHARGED THE JURY - 

"IT CLEARLY APPEARS THAT THE DEFENDANTS CONSTRUCTED THEIR RAILROAD
WITH THE PLAINTIFF'S CURVES IN 1834, ONE YEAR OR MORE BEFORE THE
PLAINTIFF'S APPLICATION FOR HIS RENEWED PATENT; CONSEQUENTLY, THEY MAY
CONTINUE ITS USE WITHOUT LIABILITY TO THE PLAINTIFF." 

THIS WAS DECLARED IN CONFLICT WITH THE REISSUE PROVISION ACT OF 1832
AND THE CORRESPONDING ONE IN THE 1836 ACT.  THE TWO ARE DECLARED
SUBSTANTIALLY ALIKE.  THE COURT SAID - "IT IS PLAIN THAT NO PRIOR USE
OF THE DEFECTIVE PATENT CAN AUTHORIZE THE USE OF THE INVENTION AFTER
THE EMANATION OF THE RENEWED PATENT UNDER THE ABOVE SECTION.  TO GIVE
TO THE PATENTEE THE FRUITS OF HIS INVENTION WAS THE OBJECT OF THE
PROVISION; AND THIS OBJECT WOULD BE DEFEATED, IF A RIGHT COULD BE
FOUNDED ON A USE SUBSEQUENT TO THE ORIGINAL PATENT AND PRIOR TO THE
RENEWED ONE.  ...  NOW ANY PERSON USING AN INVENTION PROTECTED BY A
RENEWED PATENT SUBSEQUENTLY TO THE DATE OF THIS ACT IS GUILTY OF AN
INFRINGEMENT, HOWEVER LONG HE MAY HAVE USED THE SAME AFTER THE DATE OF
THE DEFECTIVE AND SURRENDERED PATENT." 

BATTIN V. TAGGERT, (1854) SUPRA, NOTE 2, REAFFIRMED STIMPSON V. WEST
CHESTER R. CO., AND DISAPPROVED THE FOLLOWING INSTRUCTION TO THE JURY -
"THAT A DESCRIPTION, BY THE APPLICANT, FOR A PATENT OF A MACHINE, OR A
PART OF A MACHINE, IN HIS SPECIFICATION, UNACCOMPANIED BY NOTICE THAT
HE HAS RIGHTS IN IT AS INVENTOR, OR THAT HE DESIRES TO SECURE TITLE TO
IT AS A PATENTEE, IS A DEDICATION OF IT TO THE PUBLIC.  THAT SUCH A
DEDICATION CANNOT BE REVOKED, AFTER THE MACHINE HAS PASSED INTO PUBLIC
USE, EITHER BY SURRENDER AND REISSUE, OR OTHERWISE." 

THE COURT SAID - "WHETHER THE DEFECT BE IN THE SPECIFICATIONS OR IN
THE CLAIM, UNDER THE 13TH SECTION (ACT 1836) ABOVE CITED, THE PATENTEE
MAY SURRENDER HIS PATENT, AND, BY AN AMENDED SPECIFICATION OR CLAIM,
CURE THE DEFECT.  THE REISSUED PATENT MUST BE FOR THE SAME INVENTION,
SUBSTANTIALLY, THOUGH IT BE DESCRIBED IN TERMS MORE PRECISE AND
ACCURATE THAN IN THE FIRST PATENT.  UNDER SUCH CIRCUMSTANCES, A NEW AND
DIFFERENT INVENTION CANNOT BE CLAIMED.  BUT WHERE THE SPECIFICATION OR
CLAIM IS MADE SO VAGUELY AS TO BE INOPERATIVE AND INVALID, YET AN
AMENDMENT MAY GIVE TO IT VALIDITY, AND PROTECT THE RIGHTS OF THE
PATENTEE AGAINST ALL SUBSEQUENT INFRINGEMENTS." 

"SO STRONGLY WAS THIS REMEDY OF THE PATENT RECOMMENDED, BY A SENSE OF
JUSTICE AND OF POLICY, THAT THIS COURT, IN THE CASE OF GRANT V.
RAYMOND, 6 PET. 218, SUSTAINED A REISSUED AND CORRECTED PATENT, BEFORE
ANY LEGISLATIVE PROVISION WAS MADE ON THE SUBJECT." 

"HOW MUCH STRONGER IS A CASE UNDER THE STATUTE, WHICH SECURES THE
RIGHTS OF THE PATENTEE BY A SURRENDER, AND DECLARES THE EFFECT OF THE
REISSUED AND CORRECTED PATENT?  BY THE DEFECTS PROVIDED FOR IN THE
STATUTE, NOTHING PASSES TO THE PUBLIC FROM THE SPECIFICATIONS OR
CLAIMS, WITHIN THE SCOPE OF THE PATENTEE'S INVENTION.  AND THIS MAY BE
ASCERTAINED BY THE LANGUAGE HE USES." 

MILLER V. BRASS CO., (1881) SUPRA, NOTE 2, DEPARTING FROM THE VIEW
EXPRESSED IN BATTIN V. TAGGERT CONCERNING OMISSIONS IN CLAIMS, DECLARED
- 

"BUT IT MUST BE REMEMBERED THAT THE CLAIM OF A SPECIFIC DEVICE OR
COMBINATION, AND AN OMISSION TO CLAIM OTHER DEVICES OR COMBINATIONS
APPARENT ON THE FACE OF THE PATENT, ARE, IN LAW, A DEDICATION TO THE
PUBLIC OF THAT WHICH IS NOT CLAIMED.  IT IS A DECLARATION THAT THAT
WHICH IS NOT CLAIMED IS EITHER NOT THE PATENTEE'S INVENTION, OR, IF
HIS, HE DEDICATES IT TO THE PUBLIC.  THIS LEGAL EFFECT OF THE PATENT
CANNOT BE REVOKED UNLESS THE PATENTEE SURRENDERS IT AND PROVES THAT THE
SPECIFICATION WAS FRAMED BY REAL INADVERTENCE, ACCIDENT, OR MISTAKE,
WITHOUT ANY FRAUDULENT OR DECEPTIVE INTENTION ON HIS PART; AND THIS
SHOULD BE DONE WITH ALL DUE DILIGENCE AND SPEED.  ANY UNNECESSARY
LACHES OR DELAY IN A MATTER THUS APPARENT ON THE RECORD AFFECTS THE
RIGHT TO ALTER OR REISSUE THE PATENT FOR SUCH CAUSE.  IF TWO YEARS'
PUBLIC ENJOYMENT OF AN INVENTION WITH THE CONSENT AND ALLOWANCE OF THE
INVENTOR IS EVIDENCE OF ABANDONMENT, AND A BAR TO AN APPLICATION FOR A
PATENT, A PUBLIC DISCLAIMER IN THE PATENT ITSELF SHOULD BE CONSTRUED
EQUALLY FAVORABLE TO THE PUBLIC.  NOTHING BUT A CLEAR MISTAKE, OR
INADVERTENCE, AND A SPEEDY APPLICATION FOR ITS CORRECTION, IS
ADMISSIBLE WHEN IT IS SOUGHT MERELY TO ENLARGE THE CLAIM." 

"WE THINK IT CLEAR THAT IT WAS NOT THE SPECIAL PURPOSE OF THE
LEGISLATION ON THIS SUBJECT TO AUTHORIZE THE SURRENDER OF PATENTS FOR
THE PURPOSE OF REISSUING THEM WITH BROADER AND MORE COMPREHENSIVE
CLAIMS, ALTHOUGH, UNDER THE GENERAL TERMS OF THE LAW, SUCH A REISSUE
MAY BE MADE WHERE IT CLEARLY APPEARS THAT AN ACTUAL MISTAKE HAS
INADVERTENTLY BEEN MADE.  BUT BY A CURIOUS MISAPPLICATION OF THE LAW IT
HAS COME TO BE PRINCIPALLY RESORTED TO FOR THE PURPOSE OF ENLARGING AND
EXPANDING PATENT CLAIMS.  AND THE EVILS WHICH HAVE GROWN FROM THE
PRACTICE HAVE ASSUMED LARGE PROPORTIONS.  PATENTS HAVE BEEN SO EXPANDED
AND IDEALIZED, YEARS AFTER THEIR FIRST ISSUE, THAT HUNDREDS AND
THOUSANDS OF MECHANICS AND MANUFACTURERS, WHO HAD JUST REASON TO
SUPPOSE THAT THE FIELD OF ACTION WAS OPEN, HAVE BEEN OBLIGED TO
DISCONTINUE THEIR EMPLOYMENTS, OR TO PAY AN ENORMOUS TAX FOR CONTINUING
THEM." 

MAHN V. HARWOOD (1884) SUPRA, NOTE 2, REAFFIRMS MILLER V. BRASS
COMPANY, AND DECLARES - 

"THE PUBLIC IS NOTIFIED AND INFORMED BY THE MOST SOLEMN ACT ON THE
PART OF THE PATENTEE, THAT HIS CLAIM TO INVENTION IS FOR SUCH AND SUCH
AN ELEMENT OR COMBINATION, AND FOR NOTHING MORE.  OF COURSE, WHAT IS
NOT CLAIMED IS PUBLIC PROPERTY.  THE PRESUMPTION IS, AND SUCH IS
GENERALLY THE FACT, THAT WHAT IS NOT CLAIMED WAS NOT INVENTED BY THE
PATENTEE, BUT WAS KNOWN AND USED BEFORE HE MADE HIS INVENTION.  BUT,
WHETHER SO OR NOT, HIS OWN ACT HAS MADE IT PUBLIC PROPERTY IF IT WAS
NOT SO BEFORE.  THE PATENT ITSELF, AS SOON AS IT IS ISSUED, IS THE
EVIDENCE OF THIS.  THE PUBLIC HAS THE UNDOUBTED RIGHT TO USE, AND IT IS
TO BE PRESUMED DOES USE, WHAT IS NOT SPECIFICALLY CLAIMED IN THE
PATENT.  EVERY DAY THAT PASSES AFTER THE ISSUE OF THE PATENT ADDS TO
THE STRENGTH OF THIS RIGHT, AND INCREASES THE BARRIER AGAINST
SUBSEQUENT EXPANSION OF THE CLAIM BY REISSUE UNDER A PRETENCE OF
INADVERTENCE AND MISTAKE."    "THE TRUTH IS (AS WAS SHOWN IN MILLER V.
THE BRASS COMPANY), THAT THIS CLASS OF CASES, NAMELY, REISSUES FOR THE
PURPOSE OF ENLARGING AND EXPANDING THE CLAIM OF A PATENT, WAS NOT
COMPRISED WITHIN THE LITERAL TERMS OF THE LAW WHICH CREATED THE POWER
TO REISSUE PATENTS.  BUT SINCE THE PURPOSE OF THE STATUTE UNDOUBTEDLY
WAS TO PROVIDE THAT KIND OF RELIEF WHICH COURTS OF EQUITY HAVE ALWAYS
GIVEN IN CASES OF CLEAR ACCIDENT AND MISTAKE IN THE DRAWING UP OF
WRITTEN INSTRUMENTS, IT MAY FAIRLY BE INFERRED THAT A MISTAKE IN A
PATENT WHEREBY THE CLAIM IS MADE TOO NARROW, IS WITHIN THE EQUITY, IF
NOT WITHIN THE WORDS, OF THE STATUTE.  YET NO COURT OF EQUITY,
CONSIDERING ALL THE INTERESTS INVOLVED, WOULD EVER GRANT RELIEF IN SUCH
A CASE WITHOUT DUE DILIGENCE AND PROMPTNESS ON THE PART OF THE PATENTEE
IN SEEKING TO HAVE THE ERROR CORRECTED.  IT IS JUST ONE OF THOSE CASES
IN WHICH LACHES AND UNNECESSARY DELAY WOULD BE HELD TO BE A BAR TO SUCH
RELIEF.  AND IN EXTENDING THE EQUITY OF THE STATUTE SO AS TO EMBRACE
THE CASE, THE COURTS SHOULD NOT OVERLOOK OR DISREGARD THE CONDITIONS ON
WHICH ALONE COURTS OF EQUITY WOULD TAKE ANY ACTION, AND ALSO ON WHICH
ALONE THE COMMISSIONER OF PATENTS HAS ANY POWER TO GRANT A REISSUE." 

SEE, CLEMENTS V. ODORLESS APPARATUS CO., (1884) 109 U.S. 641, 649
650; TURNER & SEYMOUR CO. V. DOVER STAMPING CO., (1884) 111 U.S. 319,
326-327; COON V. WILSON, (1885) 113 U.S. 268, 277. 

TOPLIFF V. TOPLIFF, (1892) SUPRA, NOTE 2, RECOGNIZES THAT A VALID
REISSUE PATENT WITH ENLARGED CLAIMS MAY BE GRANTED, WHEN THE ORIGINAL
IS INOPERATIVE, UNDER CONDITION - 

"SECOND.  THAT DUE DILIGENCE MUST BE EXERCISED IN DISCOVERING THE
MISTAKE IN THE ORIGINAL PATENT, AND THAT, IF IT BE SOUGHT FOR THE
PURPOSE OF ENLARGING THE CLAIM, THE LAPSE OF TWO YEARS WILL ORDINARILY,
THOUGH NOT ALWAYS, BE TREATED AS EVIDENCE OF AN ABANDONMENT OF THE NEW
MATTER TO THE PUBLIC TO THE SAME EXTENT THAT A FAILURE BY THE INVENTOR
TO APPLY FOR A PATENT WITHIN TWO YEARS FROM THE PUBLIC USE OR SALE OF
HIS INVENTION IS REGARDED BY THE STATUTE AS CONCLUSIVE EVIDENCE OF AN
ABANDONMENT OF THE PATENT TO THE PUBLIC." 

IN DUNHAM V. DENNISON MANUFACTURING CO., (1894) SUPRA, NOTE 2,
INFRINGEMENT WAS ALLEGED OF A REISSUE, DATED JUNE 10, 1884, OF AN
ORIGINAL PATENT ISSUED MAY 8, 1883, FOR "A NEW AND IMPROVED COMBINED
TAG AND ENVELOPE."  THIS COURT SAID - 

"THE PATENT OF MAY 8, 1883, WAS EXPRESSLY AND DISTINCTLY, BOTH IN THE
SPECIFICATION AND IN THE CLAIMS, LIMITED TO AN ENVELOPE, WITH AN
OPENING AT ONE END; WITH A FLAP, ATTACHED TO THE ENVELOPE AT THAT END,
OF SUFFICIENT SIZE TO COVER THE WHOLE OF THAT SIDE OF THE ENVELOPE IN
WHICH THE OPENING WAS; ...  THE PATENTEE THUS GAVE THE PUBLIC TO
UNDERSTAND THAT AN ENVELOPE, THE FLAP OF WHICH DID NOT COVER ITS WHOLE
LENGTH, WOULD NOT COME WITHIN HIS PATENT, AND MIGHT RIGHTFULLY BE MADE
BY ANY ONE.  AFTER THE DEFENDANT HAD MADE ENVELOPES WITH A SHORT FLAP
OF SEMI-CIRCULAR SHAPE AND COVERING LITTLE MORE THAN THE OPENING OF THE
ENVELOPE, (WHICH, IT IS ADMITTED, DID NOT INFRINGE THE PLAINTIFF'S
PATENT AS ORIGINALLY ISSUED,) THE PLAINTIFF OBTAINED A REISSUE,
ENLARGING THE CLAIMS, AND ALTERING THE SPECIFICATION THROUGHOUT, SO AS
TO INCLUDE AN ENVELOPE WITH A FLAP OF ANY SIZE OR SHAPE, AND TO MAKE
THE INVENTION CONSIST, NOT, AS IN THE LEADING WORDS OF THE DESCRIPTION
IN THE ORIGINAL PATENT, OF 'AN ENVELOPE WITH AN END FLAP COVERING ITS
SIDE,' BUT IN 'A TAG PROVIDED WITH MEANS FOR ATTACHING IT TO THE
MERCHANDISE, AND WITH AN ENVELOPE OR POCKET TO RECEIVE A BILL OR
INVOICE OF THE MERCHANDISE.'  THE WORDS OF THE DESCRIPTION IN THE
ORIGINAL PATENT WERE NEITHER TECHNICAL NOR COMPLICATED; BUT THEY WERE
OF THE SIMPLEST KIND, AND THEIR MEANING AND SCOPE COULD NOT HAVE BEEN
MISUNDERSTOOD BY ANY ONE WHO READ THEM WITH THE SLIGHTEST ATTENTION,
LEAST OF ALL BY THE PATENTEE.  TO UPHOLD SUCH A REISSUE UNDER SUCH
CIRCUMSTANCES WOULD BE TO GRANT A NEW AND DISTINCT PRIVILEGE TO THE
PATENTEE AT THE EXPENSE OF INNNOCENT PARTIES, AND WOULD BE INCONSISTENT
WITH THE WHOLE COURSE OF RECENT DECISIONS IN THIS COURT." 

ABERCROMBIE & FITCH CO. V. BALDWIN, (1917) SUPRA, NOTE 2, DECLARED A
REISSUE CLAIM WAS NOT AN ENLARGEMENT AND HELD THE DEFENDANT GUILTY OF
VIOLATING THE PATENT AS ORIGINALLY WRITTEN. 

IN KELLER V. ADAMS-CAMPBELL CO., (1924) SUPRA, NOTE 2, CERTIORARI WAS
DISMISSED.  THE CHIEF JUSTICE POINTED OUT THAT THE QUESTION OF
INTERVENING RIGHTS, WHILE NOT FREE FROM DIFFICULTIES, WAS NOT BEFORE
THE COURT.  IT DECIDED NOTHING PRESENTLY IMPORTANT. 

THE OPINIONS REVIEWED ABOVE WILL SUFFICE TO INDICATE THE PROGRESSIVE
EFFORTS OF THE COURT TO MEET PROBLEMS INCIDENT TO OUR RAPIDLY EXPANDING
PATENT SYSTEM.  FROM A SMALL STATE DEPARTMENT BUREAU IN 1836, THE
PATENT OFFICE HAS EXPANDED UNTIL IN 1939 OVER 40,000 PATENTS WERE
GRANTED - IN 1838, 515 WERE GRANTED.  ALTHOUGH OF IMMENSE IMPORTANCE,
THE SYSTEM HAS BECOME EXCEEDINGLY COMPLEX.  QUESTIONS RELATIVE TO
REISSUED PATENTS HAVE LONG BEEN VEXATIOUS TO THOSE IMMEDIATELY
CONCERNED WITH ADMINISTRATION OF THE PATENT LAWS. 

MILLER V. BRASS COMPANY, SUPRA, POINTED OUT THAT "THE EVILS WHICH
HAVE GROWN FROM THE PRACTICE (REISSUES) HAVE ASSUMED LARGE
PROPORTIONS.  PATENTS HAVE BEEN SO EXPANDED AND IDEALIZED, YEARS AFTER
THEIR FIRST ISSUE, THAT HUNDREDS AND THOUSANDS OF MECHANICS AND
MANUFACTURERS, WHO HAD JUST REASON TO SUPPOSE THAT THE FIELD OF ACTION
WAS OPEN, HAVE BEEN OBLIGED TO DISCONTINUE THEIR EMPLOYMENTS, OR TO PAY
AN ENORMOUS TAX FOR CONTINUING THEM." 

IT IS NOW ACCEPTED DOCTRINE THAT "THE CLAIM OF A SPECIFIC DEVICE OR
COMBINATION, AND AN OMISSION TO CLAIM OTHER DEVICES OR COMBINATIONS
APPARENT ON THE FACE OF THE PATENT, ARE, IN LAW, A DEDICATION TO THE
PUBLIC OF THAT WHICH IS NOT CLAIMED."  "THIS LEGAL EFFECT OF THE PATENT
CANNOT BE REVOKED UNLESS THE PATENTEE SURRENDERS IT AND PROVES THAT THE
SPECIFICATION WAS FRAMED BY REAL INADVERTENCE, ACCIDENT, OR MISTAKE,
...  "  ALSO, THAT A REISSUE WITH ENLARGED CLAIMS, NOT APPLIED FOR
WITHIN THE TWO YEARS AFTER THE ORIGINAL, IS VOID IN THE ABSENCE OF
EXTRAORDINARY EXCULPATING CIRCUMSTANCES. 

IN THE CASE UNDER CONSIDERATION THE PATENTEE MIGHT HAVE INCLUDED IN
THE APPLICATION FOR THE ORIGINAL PATENT, CLAIMS BROAD ENOUGH TO EMBRACE
PETITIONER'S ACCUSED MACHINE, BUT DID NOT.  THIS "GAVE THE PUBLIC TO
UNDERSTAND" THAT WHATEVER WAS NOT CLAIMED "DID NOT COME WITHIN HIS
PATENT AND MIGHT RIGHTFULLY BE MADE BY ANYONE."  THE ENLARGED CLAIMS
WERE PRESENTED WITH KNOWLEDGE OF THE ACCUSED MACHINE AND DEFINITE
PURPOSE TO INCLUDE IT. 

RECAPTURE WITHIN TWO YEARS OF WHAT A PATENTEE DEDICATES TO THE PUBLIC
THROUGH OMISSION IS PERMISSIBLE UNDER SPECIFIED CONDITIONS, BUT NOT, WE
THINK, "AT THE EXPENSE OF INNOCENT PARTIES."  OTHERWISE, THE DOOR IS
OPEN FOR GROSS INJUSTICE TO ALERT INVENTORS AND BAFFLING UNCERTAINTY
WILL HINDER ORDERLY DEVELOPMENT OF USEFUL ARTS. 

THE DISTRICT COURT PROPERLY RULED THAT PETITIONER HAD "ACQUIRED
INTERVENING RIGHTS WHICH IN EQUITY PLAINTIFF (RESPONDENT HERE) MIGHT
NOT NOW DISTURB." 

IN ASHLAND FIRE BRICK CO. V. GENERAL REFRACTORIES CO., (1928) 27 F.2D
744, 745-746, THE MATTER OF "INTERVENING RIGHTS" WAS LUCIDLY
DISCUSSED.  THE OPINION STATES THE CASE THUS - 

"THIS IS THE USUAL SUIT FOR INFRINGEMENT, BASED UPON REISSUE PATENT
NO. 15,889, AUGUST 12, 1924, TO TACKETT, FOR A BRICK MACHINE.  THE
DEFENSE CHIEFLY RELIED UPON IN THE COURT BELOW AND HERE IS THAT,
BETWEEN THE DATE OF THE ORIGINAL ISSUE AND THE APPLICATION FOR THE
BROADENED REISSUE, THE DEFENDANT HAD BUILT AND BEGUN TO OPERATE ITS
MACHINES IN A FORM WHICH WAS NOT COVERED BY THE ORIGINAL PATENT, EVEN
THOUGH IT WERE BY THE REISSUE, AND THAT THE DEFENDANT HAD THUS ACQUIRED
SUCH A RIGHT, INTERVENING WITH REFERENCE TO THE ORIGINAL AND REISSUE,
AS TO MAKE IT INEQUITABLE TO ENFORCE AGAINST IT THE LATER AND BROADER
MONOPOLY."  AND IT CONCLUDED - 

"BECAUSE THE CLAIMS OF THE ORIGINAL PATENT WERE LIMITED AS TO THE
FORM OF CONVEYOR, AND BECAUSE AFTER THE ISSUE OF THE ORIGINAL PATENT
AND WITH KNOWLEDGE OF IT AND EXPRESSLY APPRECIATING ITS LIMITED
CHARACTER, INDEED, BEING GOVERNED THEREIN BY THE ADVICE OF PATENT
COUNSEL, THE DEFENDANT BUILT A NONINFRINGING BRICK MACHINE, AND STILL
BEFORE THE REISSUE APPLICATION ANOTHER ONE, AT A SUBSTANTIAL EXPENSE,
AND PUT THEM INTO COMMERCIAL USE ON A LARGE SCALE BY EXTENSIVELY
SELLING THEIR PRODUCT, AND THUS MADE THEM SUBSTANTIALLY MATERIAL TO ITS
MANUFACTURING BUSINESS, THE DEFENDANT THEREBY ACQUIRED AT LEAST A RIGHT
TO CONTINUE TO USE THESE TWO MACHINES AS IF IT HELD A LICENSE THEREFOR
UNDER THE REISSUED PATENT." 

WE THINK THIS CONCLUSION WAS RIGHT AND APPROPRIATE IN THE
CIRCUMSTANCE PRESENTED. 

IN THE INSTANT CASE THE ACCUSED MACHINE WENT INTO OPERATION WHEN THE
OWNER HAD NO ACTUAL KNOWLEDGE OF THE ORIGINAL PATENT; BUT THAT
CIRCUMSTANCE WE THINK OUGHT NOT TO DEFEAT THE DEFENSE BASED UPON
INTERVENING RIGHTS.  ALL PATENTS MUST "BE RECORDED, TOGETHER WITH THE
SPECIFICATIONS, IN THE PATENT OFFICE IN BOOKS TO BE KEPT FOR THAT
PURPOSE."  U.S.C. TITLE 35, SEC. 39.  CONSTRUCTIVE NOTICE OF THEIR
EXISTENCE GOES THUS TO ALL THE WORLD.  BOYDEN V. BURKE, (1852) 14 HOW. 
575, 582; WINE RY. APPLIANCE CO. V. ENTERPRISE RY. EQUIPMENT CO.,
(1936) 297 U.S. 387, 393; WALKER ON PATENTS, DELLER'S EDITION (1937)
VOL. 3, P. 2176.  IN CONSEQUENCE THE OWNER OF THE MACHINE HERE ACCUSED
OPERATED IT WITH IMPLIED KNOWLEDGE OF THE ORIGINAL PATENT AND MAY
JUSTLY CLAIM WHATEVER PRIVILEGES WOULD FOLLOW ACTUAL KNOWLEDGE. 

GRANT V. RAYMOND, SUPRA, SPEAKS DISPARAGINGLY OF ONE WHO HAVING
OBTAINED KNOWLEDGE OF AN INVENTION FROM A PATENT THEREAFTER
APPROPRIATES WHAT MIGHT HAVE BEEN CLAIMED BUT WAS NOT.  IN THE
DIFFERENT CONDITIONS OF TODAY THAT OBSERVATION WOULD NOT BE
APPROPRIATE.  WE CANNOT CONCLUDE THAT ONE SO CIRCUMSTANCED OCCUPIES A
POSITION SUPERIOR TO AN HONEST INVENTOR OR USER WHO HAS ACTED WITH
IMPLIED BUT NO ACTUAL KNOWLEDGE OF A RECORDED PATENT.  "THE PURPOSE OF
THE STATUTE UNDOUBTEDLY WAS TO PROVIDE THAT KIND OF RELIEF WHICH COURTS
OF EQUITY HAVE ALWAYS GIVEN IN CASES OF CLEAR ACCIDENT AND MISTAKE IN
THE DRAWING UP OF WRITTEN INSTRUMENTS," AND THESE COURTS ARE ALWAYS
TENDER OF RIGHTS CLAIMED BY INNOCENT PARTIES.  "A SENSE OF JUSTICE AND
OF POLICY" SHELTERS THEM. 

THE POSSIBILITY OF DEFEATING A CHARGE OF INFRINGEMENT BY ESTABLISHING
INTERVENING RIGHTS IS ADUMBRATED IN GRANT V. RAYMOND, SUPRA, "THE
DEFENCE WHEN TRUE IN FACT MAY BE SUFFICIENT IN LAW, NOTWITHSTANDING THE
VALIDITY OF THE NEW PATENT." 

THE CHALLENGED JUDGMENT MUST BE REVERSED WITH A REMAND TO THE CIRCUIT
COURT OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  "WHENEVER ANY PATENT IS WHOLLY OR PARTLY INOPERATIVE OR INVALID,
BY REASON OF A DEFECTIVE OR INSUFFICIENT SPECIFICATION, OR BY REASON OF
THE PATENTEE CLAIMING AS HIS OWN INVENTION OR DISCOVERY MORE THAN HE
HAD A RIGHT TO CLAIM AS NEW, IF THE ERROR HAS ARISEN BY INADVERTENCE,
ACCIDENT, OR MISTAKE, AND WITHOUT ANY FRAUDULENT OR DECEPTIVE
INTENTION, THE COMMISSIONER SHALL, ON THE SURRENDER OF SUCH PATENT AND
THE PAYMENT OF THE DUTY REQUIRED BY LAW, CAUSE A PATENT FOR THE SAME
INVENTION, AND IN ACCORDANCE WITH THE CORRECTED SPECIFICATION, TO BE
REISSUED TO THE PATENTEE OR TO HIS ASSIGNS OR LEGAL REPRESENTATIVES,
FOR THE UNEXPIRED PART OF THE TERM OF THE ORIGINAL PATENT.  SUCH
SURRENDER SHALL TAKE EFFECT UPON THE ISSUE OF THE REISSUED PATENT, BUT
IN SO FAR AS THE CLAIMS OF THE ORIGINAL AND REISSUED PATENTS ARE
IDENTICAL, SUCH SURRENDER SHALL NOT AFFECT ANY ACTION THEN PENDING NOR
ABATE ANY CAUSE OF ACTION THEN EXISTING, AND THE REISSUED PATENT TO THE
EXTENT THAT ITS CLAIMS ARE IDENTICAL WITH THE ORIGINAL PATENT SHALL
CONSTITUTE A CONTINUATION THEREOF AND HAVE EFFECT CONTINUOUSLY FROM THE
DATE OF THE ORIGINAL PATENT.  THE COMMISSIONER MAY, IN HIS DISCRETION,
CAUSE SEVERAL PATENTS TO BE ISSUED FOR DISTINCT AND SEPARATE PARTS OF
THE THING PATENTED, UPON DEMAND OF THE APPLICANT, AND UPON PAYMENT OF
THE REQUIRED FEE FOR A REISSUE FOR EACH OF SUCH REISSUED LETTERS
PATENT.  THE SPECIFICATIONS AND CLAIMS IN EVERY SUCH CASE SHALL BE
SUBJECT TO REVISION AND RESTRICTION IN THE SAME MANNER AS ORIGINAL
APPLICATIONS ARE.  EVERY PATENT SO REISSUED, TOGETHER WITH THE
CORRECTED SPECIFICATIONS, SHALL HAVE THE SAME EFFECT AND OPERATION IN
LAW, ON THE TRIAL OF ALL ACTIONS FOR CAUSES THEREAFTER ARISING, AS IF
THE SAME HAD BEEN ORIGINALLY FILED IN SUCH CORRECTED FORM; BUT NO NEW
MATTER SHALL BE INTRODUCED INTO THE SPECIFICATION, NOR IN CASE OF A
MACHINE PATENT SHALL THE MODEL OR DRAWINGS BE AMENDED, EXCEPT EACH BY
THE OTHER; BUT WHEN THERE IS NEITHER MODEL NOR DRAWING, AMENDMENTS MAY
BE MADE UPON PROOF SATISFACTORY TO THE COMMISSIONER THAT SUCH NEW
MATTER OR AMENDMENT WAS A PART OF THE ORIGINAL INVENTION, AND WAS
OMITTED FROM THE SPECIFICATION BY INADVERTENCE, ACCIDENT, OR MISTAKE,
AS AFORESAID." 

FN2  STIMPSON V. WEST CHESTER RAILROAD CO. (1846) 4 HOW.  380; BATTIN
V. TAGGERT, (1854) 17 HOW.  74; MILLER V. BRASS CO., (1881) 104 U.S.
350; MAHN V. HARWOOD, (1884) 112 U.S. 354; COON V. WILSON, (1885) 113
U.S. 268; WOLLENSAK V. REIHER, (1885) 115 U.S. 96; WHITE V. DUNBAR,
(1886) 119 U.S. 47; NEWTON V. FURST & BRADLEY CO., (1886) 119 U.S. 373;
IVES V. SARGENT, (1887) 119 U.S. 652; PARKER & WHIPPLE CO. V. YALE
CLOCK CO., (1887) 123 U.S. 87; ELECTRIC GAS CO. V. BOSTON ELECTRIC CO.,
(1891) 139 U.S. 481; TOPLIFF V. TOPLIFF, (1892) 145 U.S. 156; LEGGETT
V. STANDARD OIL CO., (1893) 149 U.S. 287; DUNHAM V. DENNISON
MANUFACTURING CO., (1894) 154 U.S. 103; ABERCROMBIE & FITCH CO. V.
BALDWIN, (1917) 245 U.S. 198; KELLER V. ADAMS-CAMPBELL CO., (1924) 264
U.S. 314, AND CASES THERE CITED; ALTOONA THEATRES V. TRI-ERGON CORP.,
(1935) 294 U.S. 477; WOOSTER V. HANDY, (1884) 21 F. 51; ASHLEY V.
SAMUEL C. TATUM CO., (1917) 240 F. 979; GENERAL REFRACTORIES CO. V.
ASHLAND FIRE BRICK CO., (1926) 15 F.2D 215, REVERSED ON APPEAL (1928)
27 F.2D 744; CHRISTMAN V. NEW YORK AIR BRAKE CO., (1928) 1 F.SUPP. 
211; MOTO METER GAUGE & EQUIPMENT CORP. V. E.A. LABORATORIES, (1932) 55
F.2D 936. 
..END :











CANTWELL V. CONNECTICUT, 310 U.S. 296 


NO. 632.  ARGUED MARCH 29, 1940.  - DECIDED MAY 20, 1940 - 126 CONN. 1;
8 A.2D 533, REVERSED. 


1.  THE FUNDAMENTAL CONCEPT OF LIBERTY EMBODIED IN THE FOURTEENTH
AMENDMENT EMBRACES THE LIBERTIES GUARANTEED BY THE FIRST AMENDMENT.  P.
303. 

2.  THE ENACTMENT BY A STATE OF ANY LAW RESPECTING AN ESTABLISHMENT
OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF IS FORBIDDEN BY
THE FOURTEENTH AMENDMENT.  P. 303. 

3.  UNDER THE CONSTITUTIONAL GUARANTY, FREEDOM OF CONSCIENCE AND OF
RELIGIOUS BELIEF IS ABSOLUTE; ALTHOUGH FREEDOM TO ACT IN THE EXERCISE
OF RELIGION IS SUBJECT TO REGULATION FOR THE PROTECTION OF SOCIETY. 
SUCH REGULATION, HOWEVER, IN ATTAINING A PERMISSIBLE END, MUST NOT
UNDULY INFRINGE THE PROTECTED FREEDOM.  PP. 303-304. 

4.  A STATE STATUTE WHICH FORBIDS ANY PERSON TO SOLICIT MONEY OR
VALUABLES FOR ANY ALLEGED RELIGIOUS CAUSE, UNLESS A CERTIFICATE
THEREFOR SHALL FIRST HAVE BEEN PROCURED FROM A DESIGNATED OFFICIAL, WHO
IS REQUIRED TO DETERMINE WHETHER SUCH CAUSE IS A RELIGIOUS ONE AND WHO
MAY WITHHOLD HIS APPROVAL IF HE DETERMINES THAT IT IS NOT, IS A
PREVIOUS RESTRAINT UPON THE FREE EXERCISE OF RELIGION AND A DEPRIVATION
OF LIBERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  P. 304. 

SO HELD AS IT WAS APPLIED TO PERSONS ENGAGED IN DISTRIBUTING
LITERATURE PURPORTING TO BE RELIGIOUS, AND SOLICITING CONTRIBUTIONS TO
BE USED FOR THE PUBLICATION OF SUCH LITERATURE. 

A STATE CONSTITUTIONALLY MAY BY GENERAL AND NON-DISCRIMINATORY
LEGISLATION REGULATE THE TIME, PLACE AND MANNER OF SOLICITING UPON ITS
STREETS, AND OF HOLDING MEETINGS THEREON; AND MAY IN OTHER RESPECTS
SAFEGUARD THE PEACE, GOOD ORDER AND COMFORT OF THE COMMUNITY.  THE
STATUTE HERE, HOWEVER, IS NOT SUCH A REGULATION.  IF A CERTIFICATE IS
ISSUED, SOLICITATION IS PERMITTED WITHOUT OTHER RESTRICTION; BUT IF A
CERTIFICATE IS DENIED, SOLICITATION IS ALTOGETHER PROHIBITED. 

5.  THE FACT THAT ARBITRARY OR CAPRICIOUS ACTION BY THE LICENSING
OFFICER IS SUBJECT TO JUDICIAL REVIEW CAN NOT VALIDATE THE STATUTE.  A
PREVIOUS RESTRAINT BY JUDICIAL DECISION AFTER TRIAL IS AS OBNOXIOUS
UNDER THE CONSTITUTION AS RESTRAINT BY ADMINISTRATIVE ACTION.  P. 306. 

6.  THE COMMON LAW OFFENSE OF BREACH OF THE PEACE MAY BE COMMITTED
NOT ONLY BY ACTS OF VIOLENCE, BUT ALSO BY ACTS AND WORDS LIKELY TO
PRODUCE VIOLENCE IN OTHERS.  P. 308. 

7.  DEFENDANT, WHILE ON A PUBLIC STREET ENDEAVORING TO INTEREST
PASSERSBY IN THE PURCHASE OF PUBLICATIONS, OR IN MAKING CONTRIBUTIONS,
IN THE INTEREST OF WHAT HE BELIEVED TO BE TRUE RELIGION, INDUCED
INDIVIDUALS TO LISTEN TO THE PLAYING OF A PHONOGRAPH RECORD DESCRIBING
THE PUBLICATIONS.  THE RECORD CONTAINED A VERBAL ATTACK UPON THE
RELIGIOUS DENOMINATION OF WHICH THE LISTENERS WERE MEMBERS, PROVOKING
THEIR INDIGNATION AND A DESIRE ON THEIR PART TO STRIKE THE DEFENDANT,
WHO THEREUPON PICKED UP HIS BOOKS AND PHONOGRAPH AND WENT ON HIS WAY. 
THERE WAS NO SHOWING THAT DEFENDANT'S DEPORTMENT WAS NOISY, TRUCULENT,
OVERBEARING OR OFFENSIVE; NOR WAS IT CLAIMED THAT HE INTENDED TO INSULT
OR AFFRONT THE LISTENERS BY PLAYING THE RECORD; NOR WAS IT SHOWN THAT
THE SOUND OF THE PHONOGRAPH DISTURBED PERSONS LIVING NEARBY, DREW A
CROWD, OR IMPEDED TRAFFIC.  HELD, THAT DEFENDANT'S CONVICTION OF THE
COMMON LAW OFFENSE OF BREACH OF THE PEACE WAS VIOLATIVE OF
CONSTITUTIONAL GUARANTEES OF RELIGIOUS LIBERTY AND FREEDOM OF SPEECH. 
PP. 307 ET SEQ. 

CANTWELL ET AL. V. CONNECTICUT. 

APPEAL FROM AND CERTIORARI TO THE SUPREME COURT OF ERRORS OF
CONNECTICUT. 

APPEAL FROM, AND CERTIORARI (309 U.S. 626) TO REVIEW, A JUDGMENT
WHICH SUSTAINED THE CONVICTION OF ALL THE DEFENDANTS ON ONE COUNT OF AN
INFORMATION AND THE CONVICTION OF ONE OF THE DEFENDANTS ON ANOTHER
COUNT.  THE CONVICTIONS WERE CHALLENGED AS DENYING THE CONSTITUTIONAL
RIGHTS OF THE DEFENDANTS. 

THE PURPOSE OF THE STATUTE IS TO PROTECT THE PUBLIC FROM FRAUD IN THE
SOLICITATION OF MONEY OR OTHER VALUABLES UNDER THE GUISE OF RELIGION. 
THE ONLY ACTIVITY OF ANY ALLEGED RELIGIOUS GROUP WHICH IT IS SOUGHT TO
REGULATE IS SUCH SOLICITATION. 

THE STATUTE DOES NOT IMPAIR IN ANY WAY RIGHTS COMMONLY REGARDED AS
EMBRACED IN FREEDOM OF SPEECH. 

THE "LIBERTY" OF WORSHIP UNDOUBTEDLY INCLUDES THE RIGHT TO ENTERTAIN
THE BELIEFS, TO ADHERE TO THE PRINCIPLES, AND TO TEACH THE DOCTRINES
WHICH APPELLANTS ADVOCATE.  HAMILTON V. REGENTS OF THE UNIVERSITY OF
CALIFORNIA, 293 U.S. 245, 262.  BUT IT IS DIFFICULT TO SEE HOW THIS
STATUTE CAN INTERFERE WITH THEIR FREEDOM TO WORSHIP AS THEY SEE FIT. 
IT DOES NOT LIMIT OR DEFINE THEIR MODE OF WORSHIP OR RESTRICT THEIR
TEACHINGS OR DOCTRINE. 

THE FACT THAT APPELLANTS MAY BELIEVE AS AN ARTICLE OF FAITH THAT THE
STATUTE CONTRAVENES THEIR RELIGION FURNISHES NO CONSTITUTIONAL BASIS
FOR THEIR VIOLATION OF IT.  COMMONWEALTH V. PLAISTED, 148 MASS. 375;
REYNOLDS V. UNITED STATES, 98 U.S. 145. 

UNDOUBTEDLY APPELLANTS' ACTIVITY IN DISTRIBUTING LITERATURE IS
PROTECTED BY FREEDOM OF THE PRESS.  BUT THE ACTIVITY WHICH VIOLATED THE
STATUTE WAS THEIR SOLICITATION OF FUNDS.  THE STATUTE RESTRICTS IN NO
WAY THE DISTRIBUTION OF PAMPHLETS AND LITERATURE, NOR THE MERE
RECEIVING OF CONTRIBUTIONS FROM THOSE WHO MIGHT BE INCLINED TO DONATE. 
WHETHER SOLICITATION WAS THEIR PRIMARY PURPOSE, OR MERELY INCIDENTAL TO
THE SPREAD OF THE GOSPEL IN ACCORDANCE WITH THEIR VIEWS, IS NOT
CONTROLLING. 

DENIAL IN THE EXERCISE OF OFFICIAL DISCRETION WOULD NOT NECESSARILY BE
FINAL AND CONCLUSIVE ON THE PERSON APPLYING FOR A PERMIT.  NORWALK V.
CONNECTICUT CO., 89 CONN. 537, 542. 

UNLIKE THE ORDINANCE IN SCHNEIDER V. STATE, 308 U.S. 147, THE STATUTE
DOES NOT SEEK TO PLACE ANY RESTRICTION UPON COMMUNICATION OF ANY VIEWS
OR THE ADVOCACY OF ANY CAUSE, NOR TO SET UP CENSORSHIP IN A POLICE
OFFICER TO DETERMINE WHAT LITERATURE MAY BE DISTRIBUTED OR IDEAS
COMMUNICATED OR WHO MAY DISTRIBUTE IT. 

THE ORDINANCE IN LOVELL V. GRIFFIN, 303 U.S. 444, FORBADE THE
DISTRIBUTION BY HAND OR OTHERWISE OF LITERATURE OF ANY KIND WITHOUT
WRITTEN PERMISSION. 

THE ACTS AND CONDUCT OF PETITIONER ARE WITHIN THE COMMON LAW
DEFINITION OF BREACH OF PEACE.  IT IS NOT NECESSARY TO SHOW THAT OTHER
PERSONS WERE ACTUALLY PROVOKED TO THE POINT OF VIOLENCE.  1 BISHOP
CRIMINAL LAW, 9TH ED., SEC. 539; STATE V. FARRALL, 29 CONN. 72; STATE
V. WARNER, 34 CONN. 276, 279; DAVIS V. BURGESS, 54 MICH. 514, 517; DELK
V. COMMONWEALTH, 166 KY. 39, 45; L.R.A. 1916 B, 1117.  NOR IS A
SPECIFIC INTENT TO PROVOKE A BREACH OF PEACE ESSENTIAL; IT IS
SUFFICIENT IF THE ACTS TEND TO PRODUCE IT.  STATE V. SHELBY, 95 MINN.
65. 

ACTS OR LANGUAGE WHICH, UNDER THE CIRCUMSTANCES, ARE CALCULATED OR
LIKELY TO PROVOKE ANOTHER TO ACTS OF IMMEDIATE VIOLENCE MAY CONSTITUTE
A BREACH OF THE PEACE.  49 L.R.A. (N.S.)  919; HOLMES V. STATE, 135
ARK. 187, 189; FAULKNER V. STATE, 166 GA. 645, 665. 

THE RULE IS AS APPLICABLE WHERE THE OBJECTIONABLE LANGUAGE IS
COMMUNICATED BY MEANS OF A PHONOGRAPH OPERATED BY THE ACCUSED OR BY
BANNER OR PLACARD.  WEST V. COMMONWEALTH, 208 KY. 735. 

THE TENDENCY OF WORDS OR CONDUCT DEPENDS LARGELY UPON THE
CIRCUMSTANCES AND IS A QUESTION OF FACT.  STATE V. MOSER, 33 ARK. 140. 
THE PLAYING FOR AUDITION BY LOYAL CATHOLICS OF A RECORD VIOLENTLY
ATTACKING THEIR RELIGION COULD WELL BE FOUND TO CONSTITUTE THE OFFENSE
CHARGED. 

WHILE THE RIGHT TO PROPAGATE RELIGIOUS VIEWS IS NOT TO BE DENIED, ONE
WILL NOT BE PERMITTED TO COMMIT A BREACH OF PEACE UNDER THE GUISE OF
PREACHING THE GOSPEL.  DELK V. COMMONWEALTH, SUPRA, 47. 

ACTS AND CONDUCT IN VIOLATION OF SOCIAL DUTIES, SUBVERSIVE OF GOOD
ORDER, AND CONTRARY TO THE LAW OF THE LAND ARE NOT IMMUNE BECAUSE THEY
ARE CLAIMED TO HAVE BEEN MOTIVATED BY RELIGIOUS BELIEF.  REYNOLDS V.
UNITED STATES, 98 U.S. 145; COMMONWEALTH V. PLAISTED, 148 MASS. 375. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

NEWTON CANTWELL AND HIS TWO SONS, JESSE AND RUSSELL, MEMBERS OF A
GROUP KNOWN AS JEHOVAH'S WITNESSES, AND CLAIMING TO BE ORDAINED
MINISTERS, WERE ARRESTED IN NEW HAVEN, CONNECTICUT, AND EACH WAS
CHARGED BY INFORMATION IN FIVE COUNTS, WITH STATUTORY AND COMMON LAW
OFFENSES.  AFTER TRIAL IN THE COURT OF COMMON PLEAS OF NEW HAVEN COUNTY
EACH OF THEM WAS CONVICTED ON THE THIRD COUNT, WHICH CHARGED A
VIOLATION OF SEC. 6294 OF THE GENERAL STATUTES OF CONNECTICUT,  FN1
AND ON THE FIFTH COUNT, WHICH CHARGED COMMISSION OF THE COMMON LAW
OFFENSE OF INCITING A BREACH OF THE PEACE.  ON APPEAL TO THE SUPREME
COURT THE CONVICTION OF ALL THREE ON THE THIRD COUNT WAS AFFIRMED.  THE
CONVICTION OF JESSE CANTWELL, ON THE FIFTH COUNT, WAS ALSO AFFIRMED,
BUT THE CONVICTION OF NEWTON AND RUSSELL ON THAT COUNT WAS REVERSED AND
A NEW TRIAL ORDERED AS TO THEM.  FN2 

BY DEMURRERS TO THE INFORMATION, BY REQUESTS FOR RULINGS OF LAW AT
THE TRIAL, AND BY THEIR ASSIGNMENTS OF ERROR IN THE STATE SUPREME
COURT, THE APPELLANTS PRESSED THE CONTENTION THAT THE STATUTE UNDER
WHICH THE THIRD COUNT WAS DRAWN WAS OFFENSIVE TO THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT BECAUSE, ON ITS FACE AND AS CONSTRUED AND
APPLIED, IT DENIED THEM FREEDOM OF SPEECH AND PROHIBITED THEIR FREE
EXERCISE OF RELIGION.  IN LIKE MANNER THEY MADE THE POINT THAT THEY
COULD NOT BE FOUND GUILTY ON THE FIFTH COUNT, WITHOUT VIOLATION OF THE
AMENDMENT. 

WE HAVE JURISDICTION ON APPEAL FROM THE JUDGMENTS ON THE THIRD COUNT,
AS THERE WAS DRAWN IN QUESTION THE VALIDITY OF A STATE STATUTE UNDER
THE FEDERAL CONSTITUTION, AND THE DECISION WAS IN FAVOR OF VALIDITY. 
SINCE THE CONVICTION ON THE FIFTH COUNT WAS NOT BASED UPON A STATUTE,
BUT PRESENTS A SUBSTANTIAL QUESTION UNDER THE FEDERAL CONSTITUTION, WE
GRANTED THE WRIT OF CERTIORARI IN RESPECT OF IT. 

THE FACTS ADDUCED TO SUSTAIN THE CONVICTIONS ON THE THIRD COUNT
FOLLOW.  ON THE DAY OF THEIR ARREST THE APPELLANTS WERE ENGAGED IN
GOING SINGLY FROM HOUSE TO HOUSE ON CASSIUS STREET IN NEW HAVEN.  THEY
WERE INDIVIDUALLY EQUIPPED WITH A BAG CONTAINING BOOKS AND PAMPHLETS ON
RELIGIOUS SUBJECTS, A PORTABLE PHONOGRAPH AND A SET OF RECORDS, EACH OF
WHICH, WHEN PLAYED, INTRODUCED, AND WAS A DESCRIPTION OF, ONE OF THE
BOOKS.  EACH APPELLANT ASKED THE PERSON WHO RESPONDED TO HIS CALL FOR
PERMISSION TO PLAY ONE OF THE RECORDS.  IF PERMISSION WAS GRANTED HE
ASKED THE PERSON TO BUY THE BOOK DESCRIBED AND, UPON REFUSAL, HE
SOLICITED SUCH CONTRIBUTION TOWARDS THE PUBLICATION OF THE PAMPHLETS AS
THE LISTENER WAS WILLING TO MAKE.  IF A CONTRIBUTION WAS RECEIVED A
PAMPHLET WAS DELIVERED UPON CONDITION THAT IT WOULD BE READ. 

CASSIUS STREET IS IN A THICKLY POPULATED NEIGHBORHOOD, WHERE ABOUT
NINETY PER CENT OF THE RESIDENTS ARE ROMAN CATHOLICS.  A PHONOGRAPH
RECORD, DESCRIBING A BOOK ENTITLED "ENEMIES," INCLUDED AN ATTACK ON THE
CATHOLIC RELIGION.  NONE OF THE PERSONS INTERVIEWED WERE MEMBERS OF
JEHOVAH'S WITNESSES. 

THE STATUTE UNDER WHICH THE APPELLANTS WERE CHARGED PROVIDES: 

"NO PERSON SHALL SOLICIT MONEY, SERVICES, SUBSCRIPTIONS OR ANY
VALUABLE THING FOR ANY ALLEGED RELIGIOUS, CHARITABLE OR PHILANTHROPIC
CAUSE, FROM OTHER THAN A MEMBER OF THE ORGANIZATION FOR WHOSE BENEFIT
SUCH PERSON IS SOLICITING OR WITHIN THE COUNTY IN WHICH SUCH PERSON OR
ORGANIZATION IS LOCATED UNLESS SUCH CAUSE SHALL HAVE BEEN APPROVED BY
THE SECRETARY OF THE PUBLIC WELFARE COUNCIL.  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.  SUCH
CERTIFICATE MAY BE REVOKED AT ANY TIME.  ANY PERSON VIOLATING ANY
PROVISION OF THIS SECTION SHALL BE FINED NOT MORE THAN ONE HUNDRED
DOLLARS OR IMPRISONED NOT MORE THAN THIRTY DAYS OR BOTH." 

THE APPELLANTS CLAIMED THAT THEIR ACTIVITIES WERE NOT WITHIN THE
STATUTE BUT CONSISTED ONLY OF DISTRIBUTION OF BOOKS, PAMPHLETS, AND
PERIODICALS.  THE STATE SUPREME COURT CONSTRUED THE FINDING OF THE
TRIAL COURT TO BE THAT "IN ADDITION TO THE SALE OF THE BOOKS AND THE
DISTRIBUTION OF THE PAMPHLETS THE DEFENDANTS WERE ALSO SOLICITING
CONTRIBUTIONS OR DONATIONS OF MONEY FOR AN ALLEGED RELIGIOUS CAUSE, AND
THEREBY CAME WITHIN THE PURVIEW OF THE STATUTE."  IT OVERRULED THE
CONTENTION THAT THE ACT, AS APPLIED TO THE APPELLANTS, OFFENDS THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, BECAUSE IT ABRIDGES OR
DENIES RELIGIOUS FREEDOM AND LIBERTY OF SPEECH AND PRESS.  THE COURT
STATED THAT IT WAS THE SOLICITATION THAT BROUGHT THE APPELLANTS WITHIN
THE SWEEP OF THE ACT AND NOT THEIR OTHER ACTIVITIES IN THE
DISSEMINATION OF LITERATURE.  IT DECLARED THE LEGISLATION
CONSTITUTIONAL AS AN EFFORT BY THE STATE TO PROTECT THE PUBLIC AGAINST
FRAUD AND IMPOSITION IN THE SOLICITATION OF FUNDS FOR WHAT PURPORTED TO
BE RELIGIOUS, CHARITABLE, OR PHILANTHROPIC CAUSES. 

THE FACTS WHICH WERE HELD TO SUPPORT THE CONVICTION OF JESSE CANTWELL
ON THE FIFTH COUNT WERE THAT HE STOPPED TWO MEN IN THE STREET, ASKED,
AND RECEIVED, PERMISSION TO PLAY A PHONOGRAPH RECORD, AND PLAYED THE
RECORD "ENEMIES," WHICH ATTACKED THE RELIGION AND CHURCH OF THE TWO
MEN, WHO WERE CATHOLICS.  BOTH WERE INCENSED BY THE CONTENTS OF THE
RECORD AND WERE TEMPTED TO STRIKE CANTWELL UNLESS HE WENT AWAY.  ON
BEING TOLD TO BE ON HIS WAY HE LEFT THEIR PRESENCE.  THERE WAS NO
EVIDENCE THAT HE WAS PERSONALLY OFFENSIVE OR ENTERED INTO ANY ARGUMENT
WITH THOSE HE INTERVIEWED. 

THE COURT HELD THAT THE CHARGE WAS NOT ASSAULT OR BREACH OF THE PEACE
OR THREATS ON CANTWELL'S PART, BUT INVOKING OR INCITING OTHERS TO
BREACH OF THE PEACE, AND THAT THE FACTS SUPPORTED THE CONVICTION OF
THAT OFFENSE. 

FIRST.  WE HOLD THAT THE STATUTE, AS CONSTRUED AND APPLIED TO THE
APPELLANTS, DEPRIVES THEM OF THEIR LIBERTY WITHOUT DUE PROCESS OF LAW
IN CONTRAVENTION OF THE FOURTEENTH AMENDMENT.  THE FUNDAMENTAL CONCEPT
OF LIBERTY EMBODIED IN THAT AMENDMENT EMBRACES THE LIBERTIES GUARANTEED
BY THE FIRST AMENDMENT.  FN3  THE FIRST AMENDMENT DECLARES THAT
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION OR
PROHIBITING THE FREE EXERCISE THEREOF.  THE FOURTEENTH AMENDMENT HAS
RENDERED THE LEGISLATURES OF THE STATES AS INCOMPETENT AS CONGRESS TO
ENACT SUCH LAWS.  THE CONSTITUTIONAL INHIBITION OF LEGISLATION ON THE
SUBJECT OF RELIGION HAS A DOUBLE ASPECT.  ON THE ONE HAND, IT
FORESTALLS COMPULSION BY LAW OF THE ACCEPTANCE OF ANY CREED OR THE
PRACTICE OF ANY FORM OF WORSHIP.  FREEDOM OF CONSCIENCE AND FREEDOM TO
ADHERE TO SUCH RELIGIOUS ORGANIZATION OR FORM OF WORSHIP AS THE
INDIVIDUAL MAY CHOOSE CANNOT BE RESTRICTED BY LAW.  ON THE OTHER HAND,
IT SAFEGUARDS THE FREE EXERCISE OF THE CHOSEN FORM OF RELIGION.  THUS
THE AMENDMENT EMBRACES TWO CONCEPTS,  - FREEDOM TO BELIEVE AND FREEDOM
TO ACT.  THE FIRST IS ABSOLUTE BUT, IN THE NATURE OF THINGS, THE SECOND
CANNOT BE.  CONDUCT REMAINS SUBJECT TO REGULATION FOR THE PROTECTION OF
SOCIETY.  FN4  THE FREEDOM TO ACT MUST HAVE APPROPRIATE DEFINITION TO
PRESERVE THE ENFORCEMENT OF THAT PROTECTION.  IN EVERY CASE THE POWER
TO REGULATE MUST BE SO EXERCISED AS NOT, IN ATTAINING A PERMISSIBLE
END, UNDULY TO INFRINGE THE PROTECTED FREEDOM.  NO ONE WOULD CONTEST
THE PROPOSITION THAT A STATE MAY NOT, BY STATUTE, WHOLLY DENY THE RIGHT
TO PREACH OR TO DISSEMINATE RELIGIOUS VIEWS.  PLAINLY SUCH A PREVIOUS
AND ABSOLUTE RESTRAINT WOULD VIOLATE THE TERMS OF THE GUARANTEE.  FN5
IT IS EQUALLY CLEAR THAT A STATE MAY BY GENERAL AND NON-DISCRIMINATORY
LEGISLATION REGULATE THE TIMES, THE PLACES, AND THE MANNER OF
SOLICITING UPON ITS STREETS, AND OF HOLDING MEETINGS THEREON; AND MAY
IN OTHER RESPECTS SAFEGUARD THE PEACE, GOOD ORDER AND COMFORT OF THE
COMMUNITY, WITHOUT UNCONSTITUTIONALLY INVADING THE LIBERTIES PROTECTED
BY THE FOURTEENTH AMENDMENT.  THE APPELLANTS ARE RIGHT IN THEIR
INSISTENCE THAT THE ACT IN QUESTION IS NOT SUCH A REGULATION.  IF A
CERTIFICATE IS PROCURED, SOLICITATION IS PERMITTED WITHOUT RESTRAINT
BUT, IN THE ABSENCE OF A CERTIFICATE, SOLICITATION IS ALTOGETHER
PROHIBITED. 

THE APPELLANTS URGE THAT TO REQUIRE THEM TO OBTAIN A CERTIFICATE AS A
CONDITION OF SOLICITING SUPPORT FOR THEIR VIEWS AMOUNTS TO A PRIOR
RESTRAINT ON THE EXERCISE OF THEIR RELIGION WITHIN THE MEANING OF THE
CONSTITUTION.  THE STATE INSISTS THAT THE ACT, AS CONSTRUED BY THE
SUPREME COURT OF CONNECTICUT, IMPOSES NO PREVIOUS RESTRAINT UPON THE
DISSEMINATION OF RELIGIOUS VIEWS OR TEACHING BUT MERELY SAFEGUARDS
AGAINST THE PERPETRATION OF FRAUDS UNDER THE CLOAK OF RELIGION. 
CONCEDING THAT THIS IS SO, THE QUESTION REMAINS WHETHER THE METHOD
ADOPTED BY CONNECTICUT TO THAT END TRANSGRESSES THE LIBERTY SAFEGUARDED
BY THE CONSTITUTION.    THE GENERAL REGULATION, IN THE PUBLIC INTEREST,
OF SOLICITATION, WHICH DOES NOT INVOLVE ANY RELIGIOUS TEST AND DOES NOT
UNREASONABLY OBSTRUCT OR DELAY THE COLLECTION OF FUNDS, IS NOT OPEN TO
ANY CONSTITUTIONAL OBJECTION, EVEN THOUGH THE COLLECTION BE FOR A
RELIGIOUS PURPOSE.  SUCH REGULATION WOULD NOT CONSTITUTE A PROHIBITED
PREVIOUS RESTRAINT ON THE FREE EXERCISE OF RELIGION OR INTERPOSE AN
INADMISSIBLE OBSTACLE TO ITS EXERCISE. 

IT WILL BE NOTED, HOWEVER, THAT THE ACT REQUIRES AN APPLICATION TO
THE SECRETARY OF THE PUBLIC WELFARE COUNCIL OF THE STATE; THAT HE IS
EMPOWERED TO DETERMINE WHETHER THE CAUSE IS A RELIGIOUS ONE, AND THAT
THE ISSUE OF A CERTIFICATE DEPENDS UPON HIS AFFIRMATIVE ACTION.  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. 

THE STATE ASSERTS THAT IF THE LICENSING OFFICER ACTS ARBITRARILY,
CAPRICIOUSLY, OR CORRUPTLY, HIS ACTION IS SUBJECT TO JUDICIAL
CORRECTION.  COUNSEL REFER TO THE RULE PREVAILING IN CONNECTICUT THAT
THE DECISION OF A COMMISSION OR AN ADMINISTRATIVE OFFICIAL WILL BE
REVIEWED UPON A CLAIM THAT "IT WORKS MATERIAL DAMAGE TO INDIVIDUAL OR
CORPORATE RIGHTS, OR INVADES OR THREATENS SUCH RIGHTS, OR IS SO
UNREASONABLE AS TO JUSTIFY JUDICIAL INTERVENTION, OR IS NOT CONSONANT
WITH JUSTICE, OR THAT A LEGAL DUTY HAS NOT BEEN PERFORMED."  FN6  IT IS
SUGGESTED THAT THE STATUTE IS TO BE READ AS REQUIRING THE OFFICER TO
ISSUE A CERTIFICATE UNLESS THE CAUSE IN QUESTION IS CLEARLY NOT A
RELIGIOUS ONE; AND THAT IF HE VIOLATES HIS DUTY HIS ACTION WILL BE
CORRECTED BY A COURT. 

TO THIS SUGGESTION THERE ARE SEVERAL SUFFICIENT ANSWERS.  THE LINE
BETWEEN A DISCRETIONARY AND A MINISTERIAL ACT IS NOT ALWAYS EASY TO
MARK AND THE STATUTE HAS NOT BEEN CONSTRUED BY THE STATE COURT TO
IMPOSE A MERE MINISTERIAL DUTY ON THE SECRETARY OF THE WELFARE
COUNCIL.  UPON HIS DECISION AS TO THE NATURE OF THE CAUSE, THE RIGHT TO
SOLICIT DEPENDS.  MOREOVER, 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.  FN7 

NOTHING WE HAVE SAID IS INTENDED EVEN REMOTELY TO IMPLY THAT, UNDER
THE CLOAK OF RELIGION, PERSONS MAY, WITH IMPUNITY, COMMIT FRAUDS UPON
THE PUBLIC.  CERTAINLY PENAL LAWS ARE AVAILABLE TO PUNISH SUCH
CONDUCT.  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.  FN8  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. 

SECOND.  WE HOLD THAT, IN THE CIRCUMSTANCES DISCLOSED, THE CONVICTION
OF JESSE CANTWELL ON THE FIFTH COUNT MUST BE SET ASIDE.  DECISION AS TO
THE LAWFULNESS OF THE CONVICTION DEMANDS THE WEIGHING OF TWO
CONFLICTING INTERESTS.  THE FUNDAMENTAL LAW DECLARES THE INTEREST OF
THE UNITED STATES THAT THE FREE EXERCISE OF RELIGION BE NOT PROHIBITED
AND THAT FREEDOM TO COMMUNICATE INFORMATION AND OPINION BE NOT
ABRIDGED.  THE STATE OF CONNECTICUT HAS AN OBVIOUS INTEREST IN THE
PRESERVATION AND PROTECTION OF PEACE AND GOOD ORDER WITHIN HER
BORDERS.  WE MUST DETERMINE WHETHER THE ALLEGED PROTECTION OF THE
STATE'S INTEREST, MEANS TO WHICH END WOULD, IN THE ABSENCE OF
LIMITATION BY THE FEDERAL CONSTITUTION, LIE WHOLLY WITHIN THE STATE'S
DISCRETION, HAS BEEN PRESSED, IN THIS INSTANCE, TO A POINT WHERE IT HAS
COME INTO FATAL COLLISION WITH THE OVERRIDING INTEREST PROTECTED BY THE
FEDERAL COMPACT. 

CONVICTION ON THE FIFTH COUNT WAS NOT PURSUANT TO A STATUTE EVINCING
A LEGISLATIVE JUDGMENT THAT STREET DISCUSSION OF RELIGIOUS AFFAIRS,
BECAUSE OF ITS TENDENCY TO PROVOKE DISORDER, SHOULD BE REGULATED, OR A
JUDGMENT THAT THE PLAYING OF A PHONOGRAPH ON THE STREETS SHOULD IN THE
INTEREST OF COMFORT OR PRIVACY BE LIMITED OR PREVENTED.  VIOLATION OF
AN ACT EXHIBITING SUCH A LEGISLATIVE JUDGMENT AND NARROWLY DRAWN TO
PREVENT THE SUPPOSED EVIL, WOULD POSE A QUESTION DIFFERING FROM THAT WE
MUST HERE ANSWER.  FN9  SUCH A DECLARATION OF THE STATE'S POLICY WOULD
WEIGH HEAVILY IN ANY CHALLENGE OF THE LAW AS INFRINGING CONSTITUTIONAL
LIMITATIONS.  HERE, HOWEVER, THE JUDGMENT IS BASED ON A COMMON LAW
CONCEPT OF THE MOST GENERAL AND UNDEFINED NATURE.  THE COURT BELOW HAS
HELD THAT THE PETITIONER'S CONDUCT CONSTITUTED THE COMMISSION OF AN
OFFENSE UNDER THE STATE LAW, AND WE ACCEPT ITS DECISION AS BINDING UPON
US TO THAT EXTENT. 

THE OFFENSE KNOWN AS BREACH OF THE PEACE EMBRACES A GREAT VARIETY OF
CONDUCT DESTROYING OR MENACING PUBLIC ORDER AND TRANQUILITY.  IT
INCLUDES NOT ONLY VIOLENT ACTS BUT ACTS AND WORDS LIKELY TO PRODUCE
VIOLENCE IN OTHERS.  NO ONE WOULD HAVE THE HARDIHOOD TO SUGGEST THAT
THE PRINCIPLE OF FREEDOM OF SPEECH SANCTIONS INCITEMENT TO RIOT OR THAT
RELIGIOUS LIBERTY CONNOTES THE PRIVILEGE TO EXHORT OTHERS TO PHYSICAL
ATTACK UPON THOSE BELONGING TO ANOTHER SECT.  WHEN CLEAR AND PRESENT
DANGER OF RIOT, DISORDER, INTERFERENCE WITH TRAFFIC UPON THE PUBLIC
STREETS, OR OTHER IMMEDIATE THREAT TO PUBLIC SAFETY, PEACE, OR ORDER,
APPEARS, THE POWER OF THE STATE TO PREVENT OR PUNISH IS OBVIOUS. 
EQUALLY OBVIOUS IS IT THAT A STATE MAY NOT UNDULY SUPPRESS FREE
COMMUNICATION OF VIEWS, RELIGIOUS OR OTHER, UNDER THE GUISE OF
CONSERVING DESIRABLE CONDITIONS.  HERE WE HAVE A SITUATION ANALOGOUS TO
A CONVICTION UNDER A STATUTE SWEEPING IN A GREAT VARIETY OF CONDUCT
UNDER A GENERAL AND INDEFINITE CHARACTERIZATION, AND LEAVING TO THE
EXECUTIVE AND JUDICIAL BRANCHES TOO WIDE A DISCRETION IN ITS
APPLICATION. 

HAVING THESE CONSIDERATIONS IN MIND, WE NOTE THAT JESSE CANTWELL, ON
APRIL 26, 1938, WAS UPON A PUBLIC STREET, WHERE HE HAD A RIGHT TO BE,
AND WHERE HE HAD A RIGHT PEACEFULLY TO IMPART HIS VIEWS TO OTHERS. 
THERE IS NO SHOWING THAT HIS DEPORTMENT WAS NOISY, TRUCULENT,
OVERBEARING OR OFFENSIVE.  HE REQUESTED OF TWO PEDESTRIANS PERMISSION
TO PLAY TO THEM A PHONOGRAPH RECORD.  THE PERMISSION WAS GRANTED.  IT
IS NOT CLAIMED THAT HE INTENDED TO INSULT OR AFFRONT THE HEARERS BY
PLAYING THE RECORD.  IT IS PLAIN THAT HE WISHED ONLY TO INTEREST THEM
IN HIS PROPAGANDA.  THE SOUND OF THE PHONOGRAPH IS NOT SHOWN TO HAVE
DISTURBED RESIDENTS OF THE STREET, TO HAVE DRAWN A CROWD, OR TO HAVE
IMPEDED TRAFFIC.  THUS FAR HE HAD INVADED NO RIGHT OR INTEREST OF THE
PUBLIC OR OF THE MEN ACCOSTED. 

THE RECORD PLAYED BY CANTWELL EMBODIES A GENERAL ATTACK ON ALL
ORGANIZED RELIGIOUS SYSTEMS AS INSTRUMENTS OF SATAN AND INJURIOUS TO
MAN; IT THEN SINGLES OUT THE ROMAN CATHOLIC CHURCH FOR STRICTURES
COUCHED IN TERMS WHICH NATURALLY WOULD OFFEND NOT ONLY PERSONS OF THAT
PERSUASION, BUT ALL OTHERS WHO RESPECT THE HONESTLY HELD RELIGIOUS
FAITH OF THEIR FELLOWS.  THE HEARERS WERE IN FACT HIGHLY OFFENDED.  ONE
OF THEM SAID HE FELT LIKE HITTING CANTWELL AND THE OTHER THAT HE WAS
TEMPTED TO THROW CANTWELL OFF THE STREET.  THE ONE WHO TESTIFIED HE
FELT LIKE HITTING CANTWELL SAID, IN ANSWER TO THE QUESTION "DID YOU DO
ANYTHING ELSE OR HAVE ANY OTHER REACTION?"  "NO, SIR, BECAUSE HE SAID
HE WOULD TAKE THE VICTROLA AND HE WENT."  THE OTHER WITNESS TESTIFIED
THAT HE TOLD CANTWELL HE HAD BETTER GET OFF THE STREET BEFORE SOMETHING
HAPPENED TO HIM AND THAT WAS THE END OF THE MATTER AS CANTWELL PICKED
UP HIS BOOKS AND WALKED UP THE STREET. 

CANTWELL'S CONDUCT, IN THE VIEW OF THE COURT BELOW, CONSIDERED APART
FROM THE EFFECT OF HIS COMMUNICATION UPON HIS HEARERS, DID NOT AMOUNT
TO A BREACH OF THE PEACE.  ONE MAY, HOWEVER, BE GUILTY OF THE OFFENSE
IF HE COMMIT ACTS OR MAKE STATEMENTS LIKELY TO PROVOKE VIOLENCE AND
DISTURBANCE OF GOOD ORDER, EVEN THOUGH NO SUCH EVENTUALITY BE
INTENDED.  DECISIONS TO THIS EFFECT ARE MANY, BUT EXAMINATION DISCLOSES
THAT, IN PRACTICALLY ALL, THE PROVOCATIVE LANGUAGE WHICH WAS HELD TO
AMOUNT TO A BREACH OF THE PEACE CONSISTED OF PROFANE, INDECENT, OR
ABUSIVE REMARKS DIRECTED TO THE PERSON OF THE HEARER.  RESORT TO
EPITHETS OR PERSONAL ABUSE IS NOT IN ANY PROPER SENSE COMMUNICATION OF
INFORMATION OR OPINION SAFEGUARDED BY THE CONSTITUTION, AND ITS
PUNISHMENT AS A CRIMINAL ACT WOULD RAISE NO QUESTION UNDER THAT
INSTRUMENT. 

WE FIND IN THE INSTANT CASE NO ASSAULT OR THREATENING OF BODILY HARM,
NO TRUCULENT BEARING, NO INTENTIONAL DISCOURTESY, NO PERSONAL ABUSE. 
ON THE CONTRARY, WE FIND ONLY AN EFFORT TO PERSUADE A WILLING LISTENER
TO BUY A BOOK OR TO CONTRIBUTE MONEY IN THE INTEREST OF WHAT CANTWELL,
HOWEVER MISGUIDED OTHERS MAY THINK HIM, CONCEIVED TO BE TRUE RELIGION. 

IN THE REALM OF RELIGIOUS FAITH, AND IN THAT OF POLITICAL BELIEF,
SHARP DIFFERENCES ARISE.  IN BOTH FIELDS THE TENETS OF ONE MAN MAY SEEM
THE RANKEST ERROR TO HIS NEIGHBOR.  TO PERSUADE OTHERS TO HIS OWN POINT
OF VIEW, THE PLEADER, AS WE KNOW, AT TIMES, RESORTS TO EXAGGERATION, TO
VILIFICATION OF MEN WHO HAVE BEEN, OR ARE, PROMINENT IN CHURCH OR
STATE, AND EVEN TO FALSE STATEMENT.  BUT THE PEOPLE OF THIS NATION HAVE
ORDAINED IN THE LIGHT OF HISTORY, THAT, IN SPITE OF THE PROBABILITY OF
EXCESSES AND ABUSES, THESE LIBERTIES ARE, IN THE LONG VIEW, ESSENTIAL
TO ENLIGHTENED OPINION AND RIGHT CONDUCT ON THE PART OF THE CITIZENS OF
A DEMOCRACY. 

THE ESSENTIAL CHARACTERISTIC OF THESE LIBERTIES IS, THAT UNDER THEIR
SHIELD MANY TYPES OF LIFE, CHARACTER, OPINION AND BELIEF CAN DEVELOP
UNMOLESTED AND UNOBSTRUCTED.  NOWHERE IS THIS SHIELD MORE NECESSARY
THAN IN OUR OWN COUNTRY FOR A PEOPLE COMPOSED OF MANY RACES AND OF MANY
CREEDS.  THERE ARE LIMITS TO THE EXERCISE OF THESE LIBERTIES.  THE
DANGER IN THESE TIMES FROM THE COERCIVE ACTIVITIES OF THOSE WHO IN THE
DELUSION OF RACIAL OR RELIGIOUS CONCEIT WOULD INCITE VIOLENCE AND
BREACHES OF THE PEACE IN ORDER TO DEPRIVE OTHERS OF THEIR EQUAL RIGHT
TO THE EXERCISE OF THEIR LIBERTIES, IS EMPHASIZED BY EVENTS FAMILIAR TO
ALL.  THESE AND OTHER TRANSGRESSIONS OF THOSE LIMITS THE STATES
APPROPRIATELY MAY PUNISH. 

ALTHOUGH THE CONTENTS OF THE RECORD NOT UNNATURALLY AROUSED
ANIMOSITY, WE THINK THAT, IN THE ABSENCE OF A STATUTE NARROWLY DRAWN TO
DEFINE AND PUNISH SPECIFIC CONDUCT AS CONSTITUTING A CLEAR AND PRESENT
DANGER TO A SUBSTANTIAL INTEREST OF THE STATE, THE PETITIONER'S
COMMUNICATION, CONSIDERED IN THE LIGHT OF THE CONSTITUTIONAL
GUARANTEES, RAISED NO SUCH CLEAR AND PRESENT MENACE TO PUBLIC PEACE AND
ORDER AS TO RENDER HIM LIABLE TO CONVICTION OF THE COMMON LAW OFFENSE
IN QUESTION.  FN10 

THE JUDGMENT AFFIRMING THE CONVICTIONS ON THE THIRD AND FIFTH COUNTS
IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  GENERAL STATUTES SEC. 6294 AS AMENDED BY SEC. 860D OF THE 1937
SUPPLEMENT. 

FN2  126 CONN. 1; 8 A.2D 533. 

FN3  SCHNEIDER V. STATE, 308 U.S. 147, 160. 

FN4  REYNOLDS V. UNITED STATES, 98 U.S. 145; DAVIS V. BEASON, 133
U.S. 333. 

FN5  COMPARE NEAR V. MINNESOTA, 283 U.S. 697, 713. 

FN6  WOODMONT ASSN. V. MILFORD, 85 CONN. 517, 522; 84 A. 307, 310;
SEE ALSO CONNECTICUT CO. V. NORWALK, 89 CONN. 528, 531; 94 A. 992. 

FN7  NEAR V. MINNESOTA, 283 U.S. 697. 

FN8  COMPARE LEWIS PUBLISHING CO. V. MORGAN, 229 U.S. 288, 306-310;
NEW YORK EX REL. BRYANT V. ZIMMERMAN, 278 U.S. 63, 72. 

FN9  COMPARE GITLOW V. NEW YORK, 268 U.S. 652, 670-1; THORNHILL V.
ALABAMA, ANTE, PP. 98-105. 

FN10  COMPARE SCHENCK V. UNITED STATES, 249 U.S. 47, 52; HERNDON V.
LOWRY, 301 U.S. 242, 256; THORNHILL V. ALABAMA, ANTE, P. 88. 
..END :












BORCHARD V. CALIFORNIA BANK, 310 U.S. 311 


NO. 752.  ARGUED APRIL 30, 1940.  - DECIDED MAY 20, 1940.  - 107 F.2D
96, REVERSED. 


IN A PROCEEDING UNDER SEC. 75(S) OF THE BANKRUPTCY ACT, THE DEBTORS
PETITIONED THE CONCILIATION COMMISSIONER FOR AN APPRAISAL AND THE
SETTING ASIDE OF THE PROPERTY TO THEM (NO ACTION HAVING BEEN TAKEN UPON
A PREVIOUS PETITION); APPRAISERS WERE APPOINTED AND MADE REPORT TO THE
COMMISSIONER OF THE VALUE OF THE PROPERTY, BUT NO STAY ORDER FIXING
TERMS ON WHICH THE DEBTORS WOULD REMAIN IN POSSESSION HAD BEEN
ENTERED.  HELD, THE ACTION OF THE DISTRICT COURT, AT THAT STAGE, IN
GRANTING LEAVE TO A CREDITOR TO SELL THE PROPERTY UNDER DEEDS OF TRUST
WAS CONTRARY TO THE PROVISIONS OF SEC. 75(S).  P. 316. 

BORCHARD ET AL. V. CALIFORNIA BANK ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 309 U.S. 648, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
DISTRICT COURT, IN A PROCEEDING UNDER SEC. 75(S) OF THE BANKRUPTCY ACT,
AUTHORIZING THE SALE OF THE DEBTORS' PROPERTY UNDER DEEDS OF TRUST. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI IN THIS CASE FOR THE REASON THAT IT PRESENTS
IMPORTANT QUESTIONS WITH RESPECT TO THE PROCEDURE REQUIRED BY SEC.
75(S) OF THE BANKRUPTCY ACT, AS AMENDED.  FN1 

THE PRECISE MATTER IN CONTROVERSY IS WHETHER THE BANKRUPTCY COURT MAY
PERMIT FORECLOSURE OF MORTGAGE LIENS WHERE THE PROCEDURE PRESCRIBED BY
SEC. 75(S) HAS NOT BEEN FOLLOWED. 

THE PETITIONERS, HUSBAND AND WIFE, ARE FARMERS.  OVER THE PERIOD
JANUARY 24, 1927 TO JUNE 19, 1933, THEY BORROWED FROM THE RESPONDENT,
THE CALIFORNIA BANK, A TOTAL OF $87,566.93, IN VARYING AMOUNTS,
EXECUTING TO THE BANK THEIR PROMISSORY NOTES FOR THE RESPECTIVE LOANS
TOGETHER WITH DEEDS OF TRUST  FN2  ON THEIR FARM REAL ESTATE AS
SECURITY.  FROM TIME TO TIME THEY MADE PAYMENTS WHICH REDUCED THE
PRINCIPAL OF THE INDEBTEDNESS TO $53,919.20.  THE LENDER, IN THE
MEANTIME, HAD MADE SOME ADVANCES TOWARDS THE PAYMENT OF TAXES ON THE
PROPERTY.  FURTHER TO SECURE THEIR INDEBTEDNESS THEY EXECUTED, ON
JANUARY 30, 1934, A MORTGAGE ON ALL THE CROPS STANDING OR GROWING, OR
WHICH SHOULD THEREAFTER BE PLANTED, GROWN, CULTIVATED, CUT, GATHERED,
PACKED, OR HARVESTED, DURING THE LIFE OF THE MORTGAGE ON CERTAIN OF
THEIR FARM REAL ESTATE. 

NOVEMBER 17, 1934, THEY FILED THEIR PETITION UNDER SEC. 75 OF THE
BANKRUPTCY ACT, WHICH WAS APPROVED AND REFERRED TO A CONCILIATION
COMMISSIONER.  IN JANUARY 1935 THE RESPONDENT BANK DECLARED DEFAULTS,
AND RECORDED NOTICES THEREOF AND OF ITS ELECTION TO CAUSE THE PROPERTY
TO BE SOLD PURSUANT TO THE DEEDS OF TRUST, AND THE LAW OF CALIFORNIA. 

MARCH 25, 1935, THE CONCILIATION COMMISSIONER APPOINTED APPRAISERS
WHO FILED AN APPRAISAL ON MAY 1 VALUING THE DEBTORS' REAL ESTATE AT
$68,550.  IT IS TO BE NOTED THAT SEC. 75 CONTAINS NO PROVISION FOR
APPRAISAL DURING THE COURSE OF THE CONCILIATION PROCEEDINGS COVERED BY
SUBSECTIONS (A) TO (R); NOR DO WE FIND ANY RULE OF THE DISTRICT COURT
PROVIDING FOR APPRAISAL AT THIS STAGE OF THE CAUSE.  THE TRANSCRIPT OF
RECORD DOES NOT DISCLOSE WHETHER THIS APPRAISAL WAS ASKED BY ANY
CREDITOR OR BY THE DEBTORS.  SO FAR AS APPEARS, THE ORDER FOR THE
APPOINTMENT OF APPRAISERS WAS MADE BY THE CONCILIATION COMMISSIONER OF
HIS OWN MOTION. 

THE DEBTORS WERE UNABLE TO OBTAIN THE REQUISITE ACCEPTANCE OF
CREDITORS TO THE COMPOSITION AND EXTENSION PROPOSAL THEY SUBMITTED.  AS
A CONSEQUENCE, THEY AMENDED THEIR PETITIONS AND PRAYED TO BE
ADJUDICATED BANKRUPTS IN ACCORDANCE WITH THE PROVISIONS OF SEC. 75(S). 
THE PETITION WAS GRANTED AND AN ADJUDICATION ENTERED MAY 6, 1935. 
APPARENTLY NO FURTHER PROCEEDINGS WERE TAKEN UNTIL JUNE 26, 1935, WHEN
THE BANKRUPTCY CAUSE WAS DISMISSED ON THE GROUND THAT THIS COURT HAD
HELD SEC. 75(S) UNCONSTITUTIONAL.  FN3 ON THE SAME DAY THE DEBTORS
PETITIONED A LOCAL COURT FOR RELIEF UNDER A STATE MORATORIUM ACT AND
OBTAINED AN ORDER GRANTING A MORATORIUM, WHICH REMAINED IN EFFECT UNTIL
SEPTEMBER 20, 1935, WHEN THE DEBTORS FILED A PETITION FOR REINSTATEMENT
OF THE BANKRUPTCY CAUSE IN ACCORDANCE WITH THE AMENDMENT OF SEC. 75(S)
ADOPTED TO MEET THE DECISION IN THE RADFORD CASE.  FN4  ON THE SAME
DATE THE DISTRICT COURT APPROVED THE PETITION, ORDERED THE PROCEEDINGS
REINSTATED, AND REFERRED THE CASE TO A CONCILIATION COMMISSIONER IN
ACCORDANCE WITH THE PROVISIONS OF SEC. 75(S).  THE COURT RESTRAINED THE
RESPONDENTS FROM SELLING, OR PROCEEDING WITH A SALE OF, THE REAL ESTATE
COVERED BY THE DEEDS OF TRUST AND ALSO ENJOINED THEM FROM COLLECTING
FROM PACKERS OR PROCESSORS THE PROCEEDS OF CROPS COVERED BY MORTGAGE,
UNTIL THE FURTHER ORDER OF THE COURT. 

OCTOBER 18, 1935, THE PETITIONER FRANZ J. BORCHARD PRESENTED HIS
PETITION TO THE CONCILIATION COMMISSIONER PRAYING THAT APPRAISERS BE
APPOINTED; THAT HIS EXEMPT PROPERTY BE SET ASIDE TO HIM, AND THAT HE BE
ALLOWED TO RETAIN POSSESSION, UNDER THE SUPERVISION AND CONTROL OF THE
COURT, OF ALL OF THE REMAINDER OF HIS PROPERTY, AND FOR SUCH FURTHER
ORDER AS MIGHT BE JUST AND PROPER IN THE PREMISES, AS AUTHORIZED BY
SEC. 75(S).  SHORTLY THEREAFTER THE DEBTORS FILED A PETITION FOR AN
ORDER ON THE BANK TO COMPEL IT TO RELEASE ITS ASSERTED CLAIM TO THE
CROP OF ORANGES GROWN ON THEIR PROPERTY IN 1935.  IN OPPOSITION THE
BANK NOT ONLY ASSERTED THE VALIDITY OF ITS LIEN, BUT URGED THAT THE
PROCEEDINGS BE DISMISSED BECAUSE SEC. 75(S), AS AMENDED, WAS
UNCONSTITUTIONAL.  THE DISTRICT JUDGE HELD THAT THE BANK HAD A LIEN ON
THE 1935 ORANGE CROP BUT REFRAINED FROM PASSING UPON THE VALIDITY OF
SEC. 75(S), STATING THAT HE WOULD DECIDE THAT QUESTION AT A LATER DATE
IF THE PARTIES SO DESIRED.  APPARENTLY THE PARTIES REQUESTED A RULING,
AND, ON MAY 15, 1936, THE JUDGE OVERRULED THE CONTENTION OF THE BANK
AND REFUSED TO DISMISS THE PROCEEDINGS. 

NOTHING HAVING BEEN DONE PURSUANT TO THE PETITION FOR APPRAISAL AND
AWARD OF POSSESSION TO FRANZ J. BORCHARD, THE PETITIONERS AND
RESPONDENTS, ON MAY 27, 1936, FILED IN THE DISTRICT COURT A STIPULATION
BY THE TERMS OF WHICH $3,900, HELD BY THIRD PARTIES, BEING THE PROCEEDS
OF 1935 CROPS HARVESTED FROM THE PREMISES, WAS TO BE PAID TO THE BANK
AND BY IT EXPENDED FOR THE CULTIVATION AND IMPROVEMENT OF THE LAND. 
THE DISTRICT COURT ACCORDINGLY ORDERED THE SUM PAID TO THE BANK.  JUNE
10, 1937, THE PARTIES STIPULATED THAT $2,494, LIKE PROCEEDS OF CROPS
HARVESTED, BE PAID TO THE BANK, TO BE EXPENDED FOR THE CULTIVATION OF
THE FARM.  THE COURT SO ORDERED.  DECEMBER 20, 1937, A STIPULATION WAS
FILED AND AN ORDER MADE THAT $2,000 BE PAID TO THE BANK, $1,500 TO THE
DEBTORS, AND $946 APPLIED TO TAXES.  FINALLY, ON MARCH 7, 1938,
PURSUANT TO STIPULATION, $1,763 WAS RELEASED FROM THE HANDS OF THIRD
PARTIES TO BE EXPENDED FOR THE CULTIVATION AND PRESERVATION OF THE
MORTGAGED REAL ESTATE.  THE STIPULATION FURTHER PROVIDED THAT THE BANK
SHOULD RECEIVE THE MONIES REALIZED FROM THE SALE OF THEN GROWING CROPS
AND SHOULD APPLY THEM, SO FAR AS NECESSARY, TO MAINTAIN AND PROTECT THE
ORANGE GROVE ON THE PROPERTY. 

ALL OF THE STIPULATIONS RESERVED THE RIGHTS OF THE PARTIES AND WERE
TO BE WITHOUT PREJUDICE TO SUCH RIGHTS. 

MAY 24, 1938, THE DEBTORS PETITIONED THE CONCILIATION COMMISSIONER
FOR AN APPRAISAL AND THE SETTING ASIDE OF THE PROPERTY TO THEM.  JUNE
22, 1938, APPRAISERS WERE APPOINTED AND THEY REPORTED THE VALUE OF THE
REAL ESTATE AS $87,300.  IT DOES NOT APPEAR WHAT, IF ANY, PROCEEDINGS
WERE HAD BEFORE THE CONCILIATION COMMISSIONER UPON THE COMING IN OF THE
APPRAISERS' REPORT.  THE PETITIONERS ASSERT THAT THE COMMISSIONER WAS
CONSIDERING THE TERMS OF AN ORDER FOR A STAY AND THE CONDITIONS TO BE
INSERTED IN THAT ORDER.  ON NOVEMBER 10, 1938, HOWEVER, THE BANK FILED
ITS PETITION IN THE DISTRICT COURT FOR LEAVE TO SELL UNDER ITS TRUST
DEEDS.  THE PETITION RECITED THE FACTS AS ABOVE OUTLINED, STATED THE
PRINCIPAL AND INTEREST DUE UNDER THE VARIOUS NOTES; SET FORTH THE
AMOUNT OF THE ADVANCES THE BANK HAD MADE FOR TAXES AND OTHER ACCOUNTS,
AND SHOWED AN EXISTING INDEBTEDNESS, SECURED BY DEEDS OF TRUST AND
MORTGAGE, TOTALING $89,246.82.  IT ALLEGED THAT THE MORTGAGED PREMISES
WOULD NOT BRING MORE THAN $65,000; THAT THE BANK HAD ALREADY SUFFERED A
SERIOUS LOSS; AND THAT FURTHER DELAY IN THE SALE OF THE PROPERTY WOULD
ENTAIL A GREATER ONE.  THE COURT TOOK TESTIMONY AS TO VALUE AND
CONCLUDED THAT THE REAL ESTATE WAS NOT WORTH MORE THAN $65,000.  IT
FOUND THAT, AS THE DEBTORS HAD HAD SEVERAL YEARS WITHIN WHICH TO
ARRANGE AN ADJUSTMENT OF THEIR OBLIGATIONS AND HAD BEEN UNABLE SO TO
DO, IT WAS FAIR AND EQUITABLE THAT THE BANK BE ALLOWED TO PROCEED SO AS
TO SAVE ITSELF FURTHER LOSS.  THE PETITION WAS GRANTED AND THE
OUTSTANDING RESTRAINING ORDER WAS DISSOLVED. 

ON APPEAL BY THE DEBTORS THE CIRCUIT COURT OF APPEALS AFFIRMED THE
DECREE,  FN5  HOLDING THAT THE DISTRICT COURT'S ACTION WAS JUSTIFIED BY
OUR DECISION IN WRIGHT V. VINTON BRANCH BANK, 300 U.S. 440. 

WE ARE OF OPINION THAT THE ACTION OF THE DISTRICT COURT IN PERMITTING
THE CREDITOR TO PROCEED TO A SALE FOR THE ENFORCEMENT OF ITS LIENS AT
THIS STAGE OF THE PROCEEDING WAS CONTRARY TO THE PROVISIONS OF SEC.
75(S).  THAT THIS IS SO IS MADE PLAIN BY OUR DECISIONS IN WRIGHT V.
VINTON BRANCH BANK, SUPRA, AND JOHN HANCOCK INS. CO. V. BARTELS, 308
U.S. 180.  AS WAS SAID IN THE LATTER CASE (P. 187): 

"THE SCHEME OF THE STATUTE IS DESIGNED TO PROVIDE AN ORDERLY
PROCEDURE SO AS TO GIVE WHATEVER RELIEF MAY PROPERLY BE AFFORDED TO THE
DISTRESSED FARMER-DEBTOR, WHILE PROTECTING THE INTERESTS OF HIS
CREDITORS BY ASSURING THE FAIR APPLICATION OF WHATEVER PROPERTY THE
DEBTOR HAS TO THE PAYMENT OF THEIR CLAIMS, THE PRIORITIES AND LIENS OF
SECURED CREDITORS BEING PRESERVED." 

THAT ORDERLY PROCEDURE INCLUDES AN APPLICATION BY THE DEBTOR, SUCH AS
WAS MADE IN THE PRESENT CASE, FOR AN APPRAISAL OF THE PROPERTY, AN
ORDER THAT THE DEBTOR REMAIN IN POSSESSION UPON TERMS FAIR AND
EQUITABLE TO HIM AND TO SECURED CREDITORS, AND THE ENTRY OF A STAY
WHICH WILL ASSURE HIM OF HIS POSSESSION FOR THREE YEARS FROM THE DATE
OF THE ORDER, UPON THE CONDITIONS MENTIONED IN THE ACT.  AS A
PREREQUISITE TO AN INTELLIGENT DETERMINATION OF THE TERMS UNDER WHICH
THE DEBTOR IS TO REMAIN IN POSSESSION, THE STATUTE REQUIRES THAT THE
COURT AND THE PARTIES SHALL BE INFORMED OF THE FAIR VALUE OF THE
PROPERTY.  AS POINTED OUT IN THE WRIGHT CASE, SUPRA, THE SECURED
CREDITORS' RIGHTS ARE PROTECTED TO THE EXTENT OF THE VALUE OF THE
PROPERTY.  THE COURT MAY ORDER RENT TO BE PAID BY THE DEBTOR, MAY ORDER
HIM TO MAKE PAYMENTS ON ACACCOUNT OF PRINCIPAL, AND, IN ITS CONTINUING
CONTROL OVER THE PROPERTY, MAY ENTER ANY OTHER ORDERS FOR THE
PROTECTION OF THE DEBTOR AND SECURED CREDITORS WHICH THE SITUATION
REQUIRES.  FAILURE OF THE DEBTOR TO COMPLY WITH ANY SUCH ORDERS MAY
EVENTUATE IN A SALE. 

INSTEAD OF PROSECUTING THE CAUSE BEFORE THE CONCILIATION COMMISSIONER
PURSUANT TO THE DEBTORS' PETITION, THE BANK RESORTED TO A PROCEDURE NOT
CONTEMPLATED BY THE STATUTE, EVIDENTLY ON THE THEORY THAT IT COULD
OBTAIN SOME ADVANTAGE BY THAT COURSE.  BY WRITTEN STIPULATIONS THE BANK
CONSENTED TO THE RETENTION OF POSSESSION BY THE DEBTORS AND ARRANGED
THAT THEY SHOULD COOPERATE IN THE CULTIVATION OF THE FARM, PROCEEDS OF
THE CROPS BEING USED FOR FURTHER CULTIVATION AND CONSERVATION OF THE
REAL ESTATE, FOR PAYMENT OF TAXES, AND FOR PAYMENTS TO THE DEBTORS. 
FOR MORE THAN THIRTY-ONE MONTHS AFTER THE PETITION FOR APPRAISAL WAS
FILED NO ACTION WAS TAKEN.  AN APPRAISAL WAS THEREAFTER MADE.  NO STAY
ORDER HAS BEEN ENTERED FIXING TERMS ON WHICH THE DEBTORS ARE TO REMAIN
IN POSSESSION.  THE PETITIONERS WERE ENTITLED TO COMPLIANCE WITH THE
PROCEDURE REQUIRED BY THE STATUTE.  THE BANK, AT ANY TIME, COULD HAVE
OBTAINED ACTION BY THE CONCILIATION COMMISSIONER AND THE COURT, IN
ACCORDANCE WITH THE STATUTE.  IT CANNOT NOW MAINTAIN THAT THE
DISORDERLY AND UNAUTHORIZED PROCEDURE FOLLOWED BY THE PARTIES IS THE
EQUIVALENT OF THAT PRESCRIBED BY THE STATUTE AND THAT, AS THE
PETITIONERS HAVE NOT BEEN ABLE TO REHABILITATE THEMSELVES, IT IS
ENTITLED TO ENFORCE ITS LIENS. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  ACT OF MARCH 3, 1933, C. 204, 47 STAT. 1467; ACT OF JUNE 28,
1934, C. 869, 48 STAT. 1289; ACT OF AUGUST 28, 1935, C. 792, 49 STAT.
942.  THE ACT HAS BEEN FURTHER AMENDED IN PARTICULARS NOT HERE
IMPORTANT BY THE ACT OF JUNE 22, 1938, 52 STAT. 840, 939.  SECTION 75,
AS IT NOW STANDS, IS TIT. 11, U.S.C. SEC. 203. 

FN2  THE DEEDS OF TRUST RAN TO THE RESPONDENT TRUST COMPANY AS
TRUSTEE. 

FN3  LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555. 

FN4  ACT OF AUGUST 28, 1935, C. 792, 49 STAT. 942. 

FN5  BORCHARD V. CALIFORNIA BANK, 107 F.2D 96. 
..END :





LABOR BOARD V. BRADFORD DYEING ASSN., 310 U.S. 318 


NO. 588.  ARGUED MARCH 26, 27, 1940.  - DECIDED MAY 20, 1940.  - 106
F.2D 119, REVERSED. 


1.  THE NATIONAL LABOR RELATIONS ACT IS APPLICABLE TO AN EMPLOYER
WHOSE BUSINESS CONSISTS OF DYEING AND FINISHING GOODS MOVED TO AND FROM
ITS PLANT BY THEIR OWNERS THROUGH THE CHANNELS OF INTERSTATE COMMERCE. 
P. 324. 

2.  THE ACT IS APPLICABLE EVEN THOUGH THE EMPLOYER'S BUSINESS IS
SMALL IN COMPARISON WITH THE INDUSTRY TO WHICH IT BELONGS.  P. 326. 

3.  IT IS NOT MATERIAL TO THE QUESTION OF THE BOARD'S JURISDICTION
THAT THE CUSTOMERS OF THE PROCESSOR, IF THE INTERSTATE MOVEMENT OF THE
GOODS TO AND FROM THE PLANT WERE STOPPED BY A STRIKE, MIGHT SECURE THE
SAME SERVICES FROM OTHER PROCESSORS IN THE SAME STATE.  P. 326. 

4.  SINCE THE PURPOSE OF THE ACT IS TO PROTECT AND FOSTER INTERSTATE
COMMERCE, THE BOARD CAN EXERT JURISDICTION BEFORE INDUSTRIAL STRIFE
OCCURS IN THE PLANT.  P. 326. 

5.  EVIDENCE BEFORE THE NATIONAL LABOR RELATIONS BOARD SUSTAINED ITS
FINDINGS: 

(1)  THAT TWO OF THE RESPONDENT COMPANY'S EMPLOYEES WERE DISCHARGED
FOR UNION ACTIVITIES.  PP. 326, 330. 

(2)  THAT THE COMPANY DOMINATED AND SUPPORTED ONE LABOR ORGANIZATION
AND REFUSED TO BARGAIN COLLECTIVELY THROUGH ANOTHER AFTER A MAJORITY OF
THE EMPLOYEES HAD SELECTED IT AS THEIR BARGAINING UNIT.  PP. 333 ET
SEQ. 

6.  WHERE A SHIFT OF MAJORITY MEMBERSHIP FROM ONE UNION TO ANOTHER
WAS BROUGHT ABOUT BY THE UNFAIR LABOR PRACTICES OF THE EMPLOYER, THE
BOARD WAS JUSTIFIED IN FINDING THAT THE FIRST UNION CONTINUED TO BE THE
EXCLUSIVE REPRESENTATIVE OF ALL THE EMPLOYEES FOR THE PURPOSES OF
COLLECTIVE BARGAINING.  P. 339. 

7.  IN VACATING THE BOARD'S ORDER FOR REINSTATEMENT OF TWO EMPLOYEES,
UPON THE GROUND THAT THEY HAD INCITED OR THREATENED UNLAWFUL CONDUCT
AFTER THEIR DISCHARGE, THE COURT BELOW ACTED WITHOUT JURISDICTION.  P.
340. 

8.  WHERE THE NATIONAL LABOR RELATIONS BOARD, ACTING WITHIN THE
COMPASS OF ITS POWER, ON A CHARGE OF UNFAIR LABOR PRACTICE, HAS HELD A
PROPER HEARING, HAS MADE FINDINGS BASED ON SUBSTANTIAL EVIDENCE, AND
HAS ORDERED AN APPROPRIATE REMEDY, THE CIRCUIT COURT OF APPEALS IS
BOUND, ON APPLICATION, TO ENFORCE THE ORDER.  P. 342. 

NATIONAL LABOR RELATIONS BOARD V. BRADFORD DYEING ASSOCIATION
(U.S.A.)  ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 308 U.S. 549, TO REVIEW A DECREE ON A PETITION FOR
ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.  4
N.L.R.B. 604; 8 ID. 979. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS DECLINED TO DECREE EFFECTIVE ENFORCEMENT
OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD UPON THE GROUND THAT
THE BOARD'S ORDER, IN MATERIAL RESPECTS, RESTED UPON FINDINGS THAT WERE
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 

IN ITS PETITION FOR CERTIORARI, THE BOARD TOOK SHARP ISSUE WITH THE
COURT OF APPEALS, ASSERTING THAT SOME FINDINGS UPSET BY THE COURT WERE
SUPPORTED NOT MERELY BY SUBSTANTIAL BUT BY "UNCONTRADICTED" AND
"UNDISPUTED EVIDENCE."  THE PETITION ALSO POINTED OUT THAT THE COURT'S
OPINION WAS "AMBIGUOUS AND INCONCLUSIVE" AND "LEFT UNCLEAR THE COURT'S
HOLDING AS TO WHETHER THE BOARD HAD JURISDICTION."  OUR INSPECTION OF
THE COURT'S OPINION AND DECREE DISCLOSED THAT THE COURT DEEMED THE
BOARD TO BE WHOLLY LACKING IN JURISDICTION.  NEVERTHELESS, THE BOARD
WAS ORDERED TO PROCEED IN ACCORDANCE WITH THE OPINION WHICH CONCLUDED
WITH THE INDECISIVE STATEMENT THAT "IF THE CASE SHOULD NOT BE DISMISSED
FOR LACK OF JURISDICTION" A LARGE PART, BUT APPARENTLY NOT ALL, OF THE
BOARD'S ORDER SHOULD BE VACATED.  THE COURT'S DECREE DID NOT DIRECT
ENFORCEMENT EVEN OF THOSE PARTS OF THE BOARD'S ORDER NOT EXPRESSLY
VACATED.  THE BOARD'S PETITION FURTHER POINTED OUT THAT ITS MOTION FOR
REHEARING IN ORDER TO CLARIFY THE QUESTION OF ITS JURISDICTION AND TO
ESTABLISH THE STATUS OF "THOSE PORTIONS OF THE BOARD'S ORDER WHICH THE
COURT NEITHER VACATED NOR ENFORCED" WAS DENIED WITHOUT EXPLANATION. 
BECAUSE THE LABOR BOARD'S PETITION IN CHALLENGING THE ACTION OF THE
COURT OF APPEALS THUS RAISED QUESTIONS OF GRAVE PUBLIC IMPORTANCE
AFFECTING THE ADMINISTRATION OF THE NATIONAL LABOR RELATIONS ACT AND
JUDICIAL REVIEW AS PROVIDED IN THE ACT, WE GRANTED CERTIORARI.  FN1 

THIS PROCEEDING WAS INITIATED UPON CHARGES FILED BY THE TEXTILE
WORKERS ORGANIZING COMMITTEE OF THE C.I.O.  THEREUPON, THE LABOR BOARD
SERVED A COMPLAINT AND NOTICE OF HEARING ON THE BRADFORD DYEING
ASSOCIATION (U.S.A.), RESPONDENT HERE. 

IN THE COMPLAINT, IT WAS ALLEGED THAT RESPONDENT IN ORDER TO
DISCOURAGE MEMBERSHIP IN THE C.I.O., HAD DISCHARGED AND REFUSED TO
REINSTATE ITS EMPLOYEES, EDWARD NELSON AND PERCY SCHOFIELD, BECAUSE OF
THEIR AFFILIATION AND ACTIVITIES IN THE TEXTILE WORKERS ORGANIZING
COMMITTEE OF THE C.I.O., (T.W.O.C.); RESPONDENT HAD DOMINATED AND
SUPPORTED THE BRADFORD DYEING ASSOCIATION EMPLOYEES' FEDERATION, A
LABOR ORGANIZATION, AND HAD REFUSED TO BARGAIN COLLECTIVELY WITH ITS
EMPLOYEES THROUGH THE T.W.O.C. AFTER A MAJORITY HAD SELECTED IT AS
THEIR BARGAINING REPRESENTATIVE. 

THE BOARD'S JURISDICTION WAS UNSUCCESSFULLY CHALLENGED ON THE GROUND
THAT RESPONDENT'S BUSINESS INVOLVED NO ACTIVITIES IN OR AFFECTING
INTERSTATE COMMERCE WITHIN THE MEANING OF THE ACT.  AND, ANSWERING,
RESPONDENT ALLEGED THAT SCHOFIELD WAS DISCHARGED BECAUSE HE SMOKED
DURING WORKING HOURS; "THAT  ...  NELSON WAS NOT DISCHARGED, THAT HE
WAS INSUBORDINATE AND DEFIANT, THAT HE DID NOT WORK AND REFUSED TO WORK
DURING THE TIMES WHEN HE WAS SUPPOSED TO BE WORKING, THAT HE WAS ON THE
PREMISES DURING HOURS WHEN HE WAS NOT SUPPOSED TO BE ON THE PREMISES OF
RESPONDENT AND WAS TAKING UP THE TIME OF OTHER EMPLOYEES WHO WERE
SUPPOSED TO BE WORKING DURING SUCH TIME, THAT  ... NELSON WENT UPON A
VACATION AND HAS NOT RETURNED TO WORK AFTER SUCH VACATION NOR MADE ANY
STATEMENT OF HIS READINESS TO RETURN TO WORK OR MADE ANY REQUEST THAT
HE BE PUT TO WORK AGAIN"; THAT RESPONDENT HAD NOT DOMINATED OR COERCED
THE FEDERATION; AND THAT ANY LABOR DISPUTES AT ITS PLANT WERE
ATTRIBUTABLE TO THE CONDUCT OF THE T.W.O.C. 

THE FEDERATION WAS ALLOWED TO INTERVENE IN THE EXTENSIVE HEARING HELD
BY THE BOARD. 

AFTER THIS HEARING, THE BOARD FOUND THAT "A LABOR DISPUTE" IN
RESPONDENT'S PLANT WOULD WIDELY AFFECT "THE FLOW OF COMMODITIES IN
INTERSTATE COMMERCE," WITH CONSEQUENT JURISDICTION IN THE BOARD, AND
THAT THE CHARGES OF THE COMPLAINT HAD BEEN SUBSTANTIATED. 

THE BOARD ACCORDINGLY ORDERED RESPONDENT TO CEASE AND DESIST FROM
(1), INTERFERING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR
RIGHTS TO SELF-ORGANIZATION; (2), DOMINATING AND INTERFERING WITH THE
FEDERATION OR ANY OTHER LABOR ORGANIZATION; (3) DISCOURAGING MEMBERSHIP
IN THE T.W.O.C.; (4), REFUSING TO BARGAIN COLLECTIVELY WITH THE
T.W.O.C; AND (5), ORDERED RESPONDENT AFFIRMATIVELY TO OFFER
REEMPLOYMENT TO SCHOFIELD AND NELSON AND TO MAKE THEM WHOLE, TO
WITHDRAW ALL RECOGNITION FROM AND COMPLETELY DISESTABLISH THE
FEDERATION, TO BARGAIN COLLECTIVELY WITH ITS EMPLOYEES THROUGH
T.W.O.C., AND TO POST THE USUAL NOTICES THROUGHOUT ITS PLANT STATING
THAT THE COMPANY WOULD CEASE ITS UNLAWFUL AND UNFAIR LABOR PRACTICES
AND WOULD TREAT ITS AGREEMENT WITH THE FEDERATION AS OF NO EFFECT. 

IN ITS FINAL DECREE THE CIRCUIT COURT OF APPEALS DIRECTED THAT "UNTIL
A NEW ELECTION HAS TAKEN PLACE BY ORDER OF THE BOARD, AND THE EMPLOYEES
HAVE EXPRESSED THEIR PREFERENCE AS TO WHAT GROUP OR BODY SHALL
REPRESENT THEM IN ANY LABOR DISPUTES BETWEEN THEM AND THE RESPONDENT,
THE ORDER OF THE BOARD, EXCEPT AS TO PARAGRAPHS (1), (2), AND (3) OF
THE CEASE AND DESIST PORTION OF THE ORDER, AND THE ENTIRE PARAGRAPH
ORDERING AFFIRMATIVE ACTION, SHALL BE VACATED, THE BOARD THEN TO
PROCEED IN ACCORDANCE WITH THE OPINION PASSED DOWN THIS DAY."  AS
PHRASED, THE DECREE IS NOT CLEAR BUT APPARENTLY THE COURT VACATED
SUBDIVISIONS (4) AND (5) OF THE BOARD'S ORDER.  THE COURT'S OPINION DID
MAKE CLEAR THAT UNDER ITS DECREE THE COMPANY WAS LEFT FREE TO BARGAIN
COLLECTIVELY WITH THE FEDERATION AND TO DECLINE TO BARGAIN WITH THE
T.W.O.C.  DISCHARGES OF SCHOFIELD AND NELSON WERE APPROVED AND THE
COMPANY WAS RELEASED FROM PUBLISHING NOTICES WHICH, IF WARRANTED, WERE
"ESSENTIAL IF THE EMPLOYEES WERE TO FEEL FREE TO EXERCISE THEIR RIGHTS
WITHOUT INCURRING THE COMPANY'S DISFAVOR."  FN2  ALTHOUGH THOSE
PORTIONS OF THE BOARD'S ORDER PROHIBITING THE COMPANY'S INTERFERING
WITH ITS EMPLOYEES' UNION AFFILIATIONS WERE NOT EXPRESSLY SET ASIDE OR
MODIFIED, NEITHER WERE THEY ORDERED ENFORCED.  FN3  THUS THE COURT'S
DECREE GAVE THE BOARD'S ORDER NO EFFECT AT ALL. 

IT DID NOT EXPLICITLY SO DECREE, BUT THE COURT OF APPEALS EVIDENTLY
WAS OF THE VIEW THAT EVIDENCE WAS LACKING UPON WHICH THE BOARD COULD
HAVE FOUND THAT RESPONDENT'S BUSINESS WAS IN OR AFFECTED INTERSTATE
COMMERCE.  THE COURT EXPRESSLY FOUND A LACK OF EVIDENCE TO SUPPORT THE
BOARD'S CONCLUSION THAT SCHOFIELD AND NELSON WERE DISCHARGED FOR UNION
ACTIVITIES AND STATED ITS BELIEF THAT SCHOFIELD WAS DISCHARGED FOR
SMOKING IN THE PLANT AND NELSON FOR INSUBORDINATION, AND THAT "THE
FINDING BY THE BOARD THAT THE T.W.O.C. HAD A MAJORITY OF THE EMPLOYEES
OF THE RESPONDENT SIGNED UP EVEN TO BECOME MEMBERS OF A UNION UNDER
THAT NAME IS WITHOUT SUBSTANTIAL EVIDENCE ON WHICH TO REST." 

WITHOUT SPECIFICALLY PASSING UPON THE BOARD'S FINDING THAT RESPONDENT
HAD UNLAWFULLY DOMINATED THE FEDERATION, THE OPINION OF THE COURT
STATED, "  ... ASSUMING THAT THE PRESIDENT OR OFFICERS OF THE
RESPONDENT INFLUENCED ITS EMPLOYEES TO JOIN THE FEDERATION, SO-CALLED,
IT DOES NOT APPEAR BY CLEAR AND SUBSTANTIAL EVIDENCE THAT A MAJORITY OF
THE EMPLOYEES EVER JOINED, OR INDICATED AN INTENT TO JOIN, THE
T.W.O.C.,  ..."  SINCE THE COURT DID NOT VACATE THAT PART OF THE
BOARD'S ORDER DIRECTING THE COMPANY TO DISCONTINUE DOMINATION OF THE
FEDERATION, WE MIGHT INFER THAT THE COURT ACCEPTED THE BOARD'S FINDING
THAT THE FEDERATION HAD BEEN SO DOMINATED.  BUT THIS INFERENCE IS
OPPOSED BY THE COURT'S ACTION IN VACATING THE ORDER OF
DISESTABLISHMENT.  THE UNCERTAINTY IN WHICH THE COURT HAS LEFT THE
QUESTIONS OF JURISDICTION AND COMPANY DOMINATION OF THE FEDERATION
MAKES NECESSARY A REVIEW OF THE EVIDENCE ON BOTH, ALONG WITH OTHER
EVIDENCE WHICH WE THINK AMPLY DEMONSTRATES THE JUSTIFICATION FOR THE
BOARD'S ORDER IN EVERY RESPECT. 

FIRST.  AS TO JURISDICTION. 

A MAJOR PORTION OF THE OPINION OF THE COURT BELOW IS DEVOTED TO ITS
EXPRESSION OF DOUBTS ABOUT THE BOARD'S JURISDICTION, I.E., "THERE IS NO
SUBSTANTIAL EVIDENCE TO WARRANT A FINDING THAT THE TRANSPORTATION OF
THESE MATERIALS BY THE RESPONDENT WAS EVER IN INTERSTATE COMMERCE";
"THERE IS ALSO LACKING SUBSTANTIAL EVIDENCE THAT FORTY PER CENT OF THE
SUPPLIES CONSISTING OF CHEMICAL AND DYES, WHICH WERE CONTRACTED FOR IN
RHODE ISLAND AND DELIVERED BY THE SELLERS TO THE RESPONDENT'S PLANT IN
BRADFORD, WERE TRANSPORTED BY THE RESPONDENT IN INTERSTATE COMMERCE, OR
THAT THEY WERE USED BY THE RESPONDENT EXCEPT AT BRADFORD, THOUGH THE
BOARD ASSUMED WITHOUT EVIDENCE THAT THEY WERE SHIPPED BY THE RESPONDENT
IN INTERSTATE COMMERCE, BUT ITS ASSUMPTION LACKS SUBSTANTIAL EVIDENCE
ON WHICH TO REST, THAT WOULD COMPEL THIS COURT TO ACCEPT IT AS A FACT";
"THE RESPONDENT, ACCORDING TO UNCONTROVERTED TESTIMONY, NEITHER SELLS,
TRANSPORTS, NOR ARRANGES FOR TRANSPORTATION OF THE GOODS INTO OR OUT OF
RHODE ISLAND IN INTERSTATE COMMERCE WHICH IS DONE IN EACH INSTANCE BY
THE CUSTOMER,  ...  "; AND "THE BOARD APPARENTLY ASSUMED THAT THE
RESPONDENT TRANSPORTED GOODS TO ITS PLANT AND FROM IT, WHICH THE
UNCONTROVERTED EVIDENCE DISCLOSED WERE NOT THE FACTS."  REFERRING TO
WASTE PRODUCTS WHICH RESPONDENT SELLS IN INTERSTATE COMMERCE, THE COURT
NOTED THAT THEY DID NOT "EXCEED ONE PER CENT OF THE TOTAL GOODS
PROCESSED" AND SAID THAT THEY WERE BUT "A MERE INCIDENT ...  (OF THE
BUSINESS) TO WHICH THE MAXIM DE MINIMIS MIGHT WELL BE APPLIED, EVEN BY
THE NATIONAL LABOR RELATIONS BOARD."  AND THE CONCLUSIONS OF THE
OPINION WERE ONLY STATED SUBJECT TO THE CONDITION "IF THE CASE SHOULD
NOT BE DISMISSED FOR LACK OF JURISDICTION." 

THERE WAS EVIDENCE BEFORE THE BOARD WHICH SHOWED: 

THE BRADFORD DYEING ASSOCIATION (U.S.A.), AS STATED BY ITS PRESIDENT,
IS "ENGAGED IN THE DYEING AND FINISHING OF COTTON, RAYON AND ACETATE
PIECE GOODS."  THESE PIECE GOODS REACH THE PLANT AT BRADFORD, TOWN OF
WESTERLY, RHODE ISLAND, AS UNFINISHED "GRAY GOODS."  CUSTOMERS OF
BRADFORD, KNOWN AS "CONVERTERS," SHIP THE GRAY GOODS TO THE PLANT,
RETAINING TITLE, AND DIRECT SHIPMENT OF THE GOODS WHEN PROCESSED. 
BRADFORD OWNS NO GOODS OR MEANS OF TRANSPORTATION, AND ITS CUSTOMERS
PAY THE COST OF TRANSPORTATION TO AND FROM THE PLANT.  A NEW YORK
OFFICE IS MAINTAINED, HOWEVER, "WHERE  ... SOLICITORS (WHO CONTACT
CONVERTERS) MAKE THEIR HEADQUARTERS," AND ADVERTISEMENTS ARE RUN IN NEW
YORK PAPERS AND TRADE JOURNALS.  A MAJORITY OF BRADFORD'S (CONVERTERS)
ARE LOCATED IN STATES OTHER THAN RHODE ISLAND, IN BALTIMORE, BOSTON,
PHILADELPHIA, TRENTON, AND PRINCIPALLY IN NEW YORK CITY.  THERE ARE
"VERY FEW CUSTOMERS" IN RHODE ISLAND.  IN 1936, 57,000,000 YARDS OF
GOODS WERE PROCESSED AND FOR THE FIRST SIX MONTHS OF 1937, 29,000,000. 
ABOUT NINETY PER CENT OF ALL GOODS PROCESSED, THE PROCESSING TAKING "AN
AVERAGE OF BETWEEN TWO AND THREE WEEKS," ARE SHIPPED OUT OF RHODE
ISLAND.  "MORE THAN HALF" OF THE GOODS PROCESSED COME FROM BEYOND THE
BORDERS OF RHODE ISLAND. 

INCIDENTAL TO ITS BUSINESS OF PROCESSING, RESPONDENT ACCUMULATES AND
ACQUIRES TITLE TO "REMNANTS" WHICH ARE ENDS OF CLOTH PROCESSED AND
GOODS DAMAGED IN PROCESSING.  IN 1936, 588,000 YARDS OF REMNANTS WERE
SOLD BY RESPONDENT, NINETY PER CENT OF WHICH WAS SHIPPED IN INTERSTATE
COMMERCE.  THESE REMNANTS REPRESENTED ROUGHLY "JUST LESS THAN ONE PER
CENT" OF THE YARDS PROCESSED IN THAT YEAR.  FOR THE SAME YEAR,
RESPONDENT PURCHASED $355,856.00 WORTH OF COLORS AND DYESTUFFS,
WEIGHING OVER 235,111 POUNDS, OF WHICH FORTY PER CENT CAME FROM OUTSIDE
OF RHODE ISLAND.  THE COMPANY, DURING 1935, AVERAGED 688 EMPLOYEES,
WITH WAGES OF $604,614.68, AND ITS GROSS INCOME FROM PROCESSING WAS
$2,026,156.00.  IN 1937, THE EMPLOYEES ON THE PAYROLL WERE NEARLY 800. 

THAT THIS EVIDENCE WAS ABUNDANTLY SUFFICIENT TO JUSTIFY EXERCISE OF
JURISDICTION BY THE BOARD IS NOT NOW OPEN TO CONTROVERSY.  IT IS
SETTLED THAT THE ACT IS APPLICABLE TO A PROCESSOR, WHO CONSTITUTES EVEN
A RELATIVELY SMALL PERCENTAGE OF HIS INDUSTRY'S CAPACITY,  FN4  WHERE
THE MATERIALS PROCESSED ARE MOVED TO AND FROM THE PROCESSOR BY THEIR
OWNERS THROUGH THE CHANNELS OF INTERSTATE COMMERCE,  FN5  AND IT IS NOT
MATERIAL, AS THE COURT BELOW THOUGHT, THAT RESPONDENT'S CUSTOMERS MIGHT
BE ABLE TO SECURE THE SAME SERVICES FROM OTHER RHODE ISLAND PROCESSORS
IF A LABOR DISPUTE SHOULD STOP THE INTERSTATE FLOW OF MATERIALS TO AND
FROM RESPONDENT'S PLANT.  SINCE THE PURPOSE OF THE ACT IS TO PROTECT
AND FOSTER INTERSTATE COMMERCE, THE BOARD'S JURISDICTION CAN ATTACH, AS
HERE, BEFORE ACTUAL INDUSTRIAL STRIFE MATERIALIZES TO OBSTRUCT THAT
COMMERCE.  FN6 

SECOND.  DISCHARGE OF NELSON. 

IN ITS ANSWER TO THE BOARD'S COMPLAINT, THE COMPANY CONTENDED THAT
NELSON WAS NOT DISCHARGED APRIL 3, 1937, BUT WAS MERELY "LAID OFF," AND
ON APRIL 2, "WENT UPON A VACATION" AND DID NOT RETURN OR INDICATE A
WILLINGNESS TO GO BACK TO WORK.  HOWEVER, THE COMPANY INSISTS, AS IT
HAS THROUGHOUT, THAT NELSON WAS NOT A DILIGENT WORKER AND WAS
INSUBORDINATE; THAT HE TRESPASSED UPON COMPANY PROPERTY AFTER WORK
HOURS THURSDAY, APRIL 1ST; THAT "ONE OR TWO MORNINGS THAT WEEK HE
STARTED WORK A LITTLE LATE AND QUIT A LITTLE EARLY"; THAT HE DID NOT
START WORK SATURDAY, APRIL 3, UNTIL 7:30, A HALF HOUR LATE.    SOME OF
THE EVIDENCE SUPPORTING THE BOARD'S FINDING THAT NELSON WAS ACTUALLY
DISCHARGED FOR UNION ACTIVITIES ON APRIL 3, WAS: 

PRIOR TO SATURDAY, APRIL 3, 1937, WHEN NELSON WAS "LAID OFF," HE HAD
WORKED FOR THE COMPANY TWO YEARS AS A CARPENTER.  HE HAD BECOME
ACTIVELY INTERESTED IN ORGANIZING THE EMPLOYEES IN A C.I.O. UNION THE
PRECEDING MONDAY, MARCH 29, 1937.  ON THAT DAY, HE HAD OBTAINED THREE
HUNDRED AND FIFTY T.W.O.C. CARDS FROM A FELLOW EMPLOYEE (SCHOFIELD),
WHO, HE HEARD, "HAD SOME APPLICATIONS FOR JOINING THE UNION, THE
C.I.O."  HIS DISTRIBUTION OF THE CARDS MET WITH QUICK RESPONSE AND MANY
SIGNED SO THAT ON FRIDAY, THE COMPANY OFFICIAL "WHO DOES ALL THE
HIRING," APPROACHED HIM AND SAID, "YOU'RE A RINGLEADER OF THE C.I.O.,
BUT YOU ARE NOT GOING TO BE FIRED FOR IT."  NELSON REFUSED TO TELL THIS
OFFICIAL THE NAMES OF HIS COLLABORATORS IN FORMING THE UNION AND ALSO
TOLD HIM HE WOULD NOT REVEAL THEIR NAMES TO MR. SUMMERSBY, THE
COMPANY'S PRESIDENT AND GENERAL MANAGER.  LATER THAT DAY, NELSON
OBSERVED SCHOFIELD TALKING WITH SUMMERSBY AND WAS INTRODUCED TO THE
LATTER AS "HELPING  ...  (SCHOFIELD) TO ORGANIZE AND GET THESE PLEDGE
CARDS SIGNED IN THE MILL."  HE WAS, THAT SAME DAY, FRIDAY, REFUSED
ADMISSION TO A MEETING IN SUMMERSBY'S OFFICE BETWEEN SOME EMPLOYEES AND
SUMMERSBY, BUT THAT AFTERNOON, AFTER WORK, HE WAS CALLED TO SUMMERSBY'S
OFFICE.  THERE SUMMERSBY ASKED "WHY DIDN'T WE FORM A LOCAL UNION OF OUR
OWN" AND "THOUGHT IT WAS A MUCH BETTER PLAN TO FORM A LOCAL UNION." 
AND SUMMERSBY ASKED THAT THE QUESTION OF A LOCAL UNION BE PUT UP TO A
C.I.O. COMMITTEE MEETING TO BE HELD THAT NIGHT. 

ALL DAY FRIDAY AND SATURDAY MORNING, HIS FOREMAN "DIDN'T SPEAK ONE
WORD TO" NELSON.  SATURDAY MORNING, APRIL 3, THIS FOREMAN ASKED HIM
"WHEN (HE)  ...  INTENDED TO START WORK" BUT ADDED THAT HE "DIDN'T HOLD
ANYTHING AGAINST" HIM.  WHEN SATURDAY'S WORK WAS OVER, NELSON WAS SENT
FOR BY SUMMERSBY, WHO WAS AFFABLE AT FIRST, BUT WHO BECAME HOSTILE WHEN
NELSON INDICATED HE WOULD NOT GO ALONG WITH A LOCAL UNION.  SUMMERSBY
THEN ASKED NELSON IF HE HAD BEEN STEALING ON AN OCCASION WHEN HE HAD
RETURNED TO THE PLANT AFTER HOURS TO GET SOME T.W.O.C. CARDS, AND ASKED
HIM IF HE HAD BEGUN WORK PROMPTLY THAT DAY (SATURDAY, APRIL 3).  NELSON
WAS TOLD BY SUMMERSBY "TO TAKE TWO WEEKS OFF AND COOL OFF."  NELSON
INSISTED HE WAS READY TO GO BACK TO WORK MONDAY MORNING.  HIS TESTIMONY
NARRATED THIS CONVERSATION IN PART AS FOLLOWS 

"A.  ...  I SAID, 'AS FAR AS BEING EXCITED ABOUT IT, YOU ARE MORE
EXCITED THAN I AM AND YOU ARE WORRIED ABOUT IT AND I AIN'T.'  HE SAYS,
'SURE, I AM EXCITED ABOUT IT, BUT YOU ARE THE CAUSE OF ALL IT.'  I
SAID, 'I CAN'T HELP THAT.'  HE SAID, 'YOU TAKE THE TWO WEEKS OFF AND
THEN COME BACK AND SEE MR. PIERCE.'  I SAID, 'MEANING WHAT, THAT I GO
BACK AND SEE MR. PIERCE?  I AM NOT SURE OF A JOB WHEN I COME BACK?  OR
IS THIS JUST A MATTER OF BEATING ABOUT THE BUSH TO FIRE ME?'  HE SAYS,
'I WON'T GIVE YOU NOTHING DEFINITE.'  I SAYS, 'I WANT SOMETHING
DEFINITE.  I WANT TO KNOW WHETHER OR NOT YOU ARE FIRING ME.  IF YOU ARE
NOT TELLING ME WHETHER I GO TO WORK WHEN I COME BACK OR NOT, I WANT TO
KNOW WHETHER YOU ARE FIRING ME.'  HE SAYS, 'I WON'T GIVE YOU NOTHING
DEFINITE.'  I SAYS, 'I CAN'T GO OUT WITHOUT MONEY.  IF YOU ARE GOING TO
FIRE ME, I CAN'T LIVE WITHOUT MONEY.'  HE SAYS, 'SILVIA, GET HIS
MONEY.'  MR. SILVIA WENT OUT AND GOT ME MY MONEY AND CAME IN AND I
THANKED MR. SILVIA FOR MY MONEY AND WENT OUT.  WHEN I WAS HALFWAY
ACROSS THE OUTER OFFICE I HEARD LAUGHING, AND I SAW SILVIA SWING HIS
ARM DOWN, AND MR. SILVIA AND MR. SUMMERSBY WERE LAUGHING FOR ALL THEY
WERE WORTH, AS THOUGH THEY HAD PULLED A BIG JOKE." 

"Q.  DID YOU EVER GO BACK AFTER THAT FOR YOUR JOB?  A. NO I DIDN'T.
MR. SUMMERSBY TOLD ME IF I STEPPED FOOT ON THE PREMISES WITHIN TWO
WEEKS HE WAS GOING TO HAVE ME ARRESTED." 

NELSON NEVER WENT BACK BECAUSE A T.W.O.C. OFFICIAL WHO CONFERRED WITH
SUMMERSBY SAID SUMMERSBY WOULD NOT TAKE HIM BACK.  THIS T.W.O.C.
OFFICIAL AND A CONCILIATOR OF THE UNITED STATES DEPARTMENT OF LABOR
SAID SUMMERSBY WOULDN'T TAKE NELSON BACK BECAUSE "THERE WOULD BE A
QUESTION OF HIS AUTHORITY."  IN FACT, A FELLOW EMPLOYEE TOLD NELSON
THAT SUMMERSBY HAD SAID SOMETHING ABOUT FIRING NELSON AND SCHOFIELD AND
"THAT HE WOULD FIND SOME WAY OF GETTING AROUND IT."  ON THE MORNING OF
THE DAY NELSON WAS FIRED HE HAD SPENT A "COUPLE OF MINUTES" TELLING
OTHER EMPLOYEES ABOUT A C.I.O. MEETING OF THE PREVIOUS NIGHT. 

FROM THE TESTIMONY OF THE T.W.O.C. OFFICIAL IN QUESTION, A T.W.O.C.
DIRECTOR FOR RHODE ISLAND, SUMMERSBY WOULD NOT REHIRE "ESPECIALLY MR.
NELSON."  AND SUMMERSBY HIMSELF STATED THAT HE TOLD THE FEDERAL
CONCILIATOR, "I COULDN'T TAKE BACK EITHER OF THEM BECAUSE IT WOULD
BREAK DOWN THE DISCIPLINE OF OUR PLANT." 

NELSON'S FOREMAN TESTIFIED AS A WITNESS FOR RESPONDENT - 

ON FRIDAY, APRIL 2, "I COULD SEE THAT HE (NELSON) WAS TALKING AROUND
MORE OR LESS, AND SO I HAD HIM COME IN THE SHOP TO WORK ON THE TRUCKS. 
I THOUGHT THAT WOULD BE THE PLACE WHERE I COULD WATCH HIM BETTER."  HE
SAW NELSON TALKING TO THE MEN EARLY ON APRIL 3, BEFORE WORK AND UNTIL
7:30, ALTHOUGH WORK BEGINS AT 7.  HE REPORTED TO HIS SUPERIOR THAT
NELSON WAS "TALKING TO DIFFERENT ONES," AND WENT WITH NELSON TO
SUMMERSBY WHO ASKED NELSON "IF HE DECIDED, ON SOME QUESTION THAT THEY
WERE TALKING ABOUT THE AFTERNOON BEFORE  ...  (NELSON) SAID, 'NO,'" AND
SUMMERSBY SAID, "WELL, THEN, IF YOU CAN'T GIVE ME A SATISFACTORY ANSWER
ON THAT I HAVE THOUGHT IT OVER AND I HAVE DECIDED TO LAY YOU OFF FOR
TWO WEEKS AND LET YOU THINK IT OVER."  THIS FOREMAN "KNEW  ... (NELSON)
WAS INTERESTED IN THE C.I.O., BUT  ...  DIDN'T KNOW ANYTHING HE SAID"
TO THE MEN SATURDAY MORNING.  ON OTHER OCCASIONS, HE HAD SEEN NELSON
START LATE OR QUIT EARLY WITHOUT EVER REPORTING THE FACT, AND HAD SEEN
NELSON TALK AROUND LIKE THAT "QUITE OFTEN" BUT "THIS IS THE ONLY TIME
... (THE FOREMAN) EVER GOT MAD AT HIM."  THIS TIME, HE WAS AWARE THAT
NELSON HAD BEEN CONNECTED WITH THE C.I.O. FOR THE PAST WEEK "AND  ...
SUPPOSED HE WAS STILL AT IT."  THE FOREMAN ADMITTED THAT NELSON WAS "A
VERY GOOD WORKMAN," THAT HE MAY HAVE WORKED BETWEEN 7 AND 7:10 ON THIS
PARTICULAR SATURDAY MORNING AND THAT ON SATURDAY, APRIL 3, NELSON,
AFTER HAVING BEEN SPOKEN TO, "SAID HE HADN'T ANY FEELINGS BUT WHAT HE
WOULD GO ON AND DO HIS WORK ALL RIGHT.  AND HE DID AFTER THAT." 

ACCORDING TO THE CHIEF ENGINEER, WHO RANKED ABOVE NELSON'S FOREMAN - 

NELSON PREVIOUSLY "DID A WHOLE LOT OF TALKING."  IN HIS THREE YEARS
WITH THE COMPANY, HE HAD SEEN OTHERS TALKING BUT NEVER LAID ANY ONE
ELSE OFF FOR TALKING.  IN HIS VIEW "WHEN MEN ARE TALKING WITH ONE
ANOTHER THERE IS VERY LITTLE WORK DONE," BUT THE FOREMAN DID NOT REPORT
THE MEN TO WHOM NELSON WAS TALKING ON APRIL 3, ALTHOUGH THEY ALSO WERE
"SURELY" WASTING TIME.  THE PLANT RULES DO NOT FORBID TALKING. 

SUMMERSBY, THE PRESIDENT AND GENERAL MANAGER - 

ON APRIL 2, "INQUIRED AS TO WHO (NELSON)  ...  WAS AND WHAT HE DID
AND IF HE HAD BEEN ACTIVE IN THE C.I.O. AS AN ORGANIZER."  NELSON, HE
STATED, "AUTOMATICALLY FORFEITED HIS JOB" BY NOT COMING BACK AT THE END
OF HIS TWO WEEKS LAY OFF, WHICH WAS WITHOUT PAY.  AND IF HE SHOULD
APPLY FOR WORK, HIS FORCED VACATION "WOULD BE ON HIS RECORD AND WOULD
ALWAYS BE A BLACK MARK AGAINST HIM." 

THIRD.  DISCHARGE OF SCHOFIELD. 

THE COURT BELOW SAW NO EVIDENCE SUPPORTING THE BOARD'S FINDINGS THAT
THIS EMPLOYEE WAS DISCHARGED FOR UNION ACTIVITIES, AND ACCEPTED THE
COMPANY'S CONTENTION THAT HE WAS DISCHARGED FOR SMOKING IN THE PLANT
CONTRARY TO RULES.  RESPONDENT ADMITS THAT SCHOFIELD WAS DISCHARGED. 

SCHOFIELD, A MACHINE OPERATOR, OR "JIGGER," TESTIFIED - 

ON SATURDAY, MARCH 27, 1937, HE ATTENDED A C.I.O. MEETING, OBTAINED
EIGHT APPLICATION CARDS FOR THE C.I.O. AND TALKED TO SOME OF HIS FELLOW
EMPLOYEES ABOUT THE C.I.O.  ALL EIGHT CARDS WERE SIGNED THAT NIGHT.  BY
SUNDAY, MARCH 28, HE HAD ASKED FOR AND OBTAINED SEVEN HUNDRED CARDS
WHICH HE USED DURING THE FOLLOWING WEEK, GIVING NELSON ABOUT ONE-HALF
ON MONDAY, MARCH 29.  BY WEDNESDAY, THE CARDS GAVE OUT.  ON FRIDAY,
APRIL 2, HE AND SUMMERSBY DISCUSSED CERTAIN DIFFICULTIES WITH THE PIECE
WORK OF "JIGGERS."  SUMMERSBY, TALKING THERE IN THE PLANT, BROUGHT UP
THE C.I.O. AND SAID "HE COULDN'T SEE ANYTHING IN AN ORGANIZATION
OUTSIDE ...  (WITH)  ...  BIG SHOTS  ...  RUNNING BIG AUTOMOBILES AND
HOTEL EXPENSES." 

SUMMERSBY THEN SUGGESTED "A UNION OF OUR OWN IN THE SHOP."  SCHOFIELD
ATTENDED A MEETING IN SUMMERSBY'S OFFICE AS A MEMBER OF A COMMITTEE OF
"JIGGERS," AND THE SUBJECT OF THE C.I.O. AROSE AGAIN.  SUMMERSBY SAID
HE WOULDN'T RECOGNIZE AN OUTSIDE UNION.  WHEN NELSON ATTEMPTED TO ENTER
THIS MEETING, SUMMERSBY TURNED HIM AWAY AND REFERRED TO HIM AS A
"TROUBLEMAKER."  SUNDAY, APRIL 4, THERE WAS A C.I.O. MEETING AT WHICH
SCHOFIELD AND NELSON WERE BOTH ON THE PLATFORM.  SCHOFIELD WENT TO WORK
ON MONDAY, THE 5TH, CONTINUING TO DISTRIBUTE C.I.O. CARDS.  ON TUESDAY,
THE 6TH, AT 2:25(NELSON HAD BEEN "LAID OFF" ON THE 3RD), A "CHARGE
HAND" NOTIFIED SCHOFIELD THAT SUMMERSBY WANTED TO SEE HIM "IN HIS
OFFICE RIGHT AWAY."  HE LEFT HIS WORK AND WENT DIRECTLY TO THE LOCKER
ROOM TO WASH AND CHANGE FROM WORK CLOTHES.  WHILE THERE, HE AND TWO
OTHER EMPLOYEES WERE SMOKING.  AN OFFICIAL OF THE COMPANY - A BOSS DYER
- WHOM HE HAD NEVER SEEN "IN THE LOCKER ROOM, NOT WHILE THE MEN WERE
CHANGING THEIR CLOTHES" - CAUGHT SCHOFIELD SMOKING AND SAID, "SO THAT'S
IT, YOU DAMN FOOL."  SCHOFIELD THEN WENT TO SUMMERSBY'S OFFICE AS HE
HAD BEEN DIRECTED, BUT DID NOT FIND HIM THERE.  SUMMERSBY'S FIRST
WORDS, ON ENTERING THE OFFICE ABOUT TWENTY MINUTES LATER, CHARGED
SCHOFIELD WITH SMOKING, BUT SUMMERSBY REFUSED TO TELL SCHOFIELD WHY HE
HAD ORIGINALLY BEEN SENT FOR - BEFORE HE WAS CAUGHT SMOKING.  SCHOFIELD
WAS TOLD TO "TAKE A COUPLE OF WEEKS OFF."  HE HAD BEEN LAID OFF ONCE
BEFORE FOR SMOKING. 

ON THE FRIDAY BEFORE THE TUESDAY ON WHICH THIS EMPLOYEE WOULD, HE
THOUGHT, HAVE BEEN TAKEN BACK TO WORK, A FEDERAL CONCILIATOR AND C.I.O.
OFFICIALS CONFERRED WITH SUMMERSBY ABOUT NELSON AND HIM.  THE C.I.O.
OFFICIAL TOLD SCHOFIELD THAT SUMMERSBY REFUSED TO REHIRE EITHER, AND AS
A RESULT HE NEVER WENT BACK.  ALTHOUGH HE "WANTED TO GO BACK THE FIRST
WEEK," HE TOOK THE WORD OF THE FEDERAL CONCILIATOR AND THE C.I.O.
OFFICIAL THAT HE WOULD NOT BE REHIRED.  THE TWO OTHER EMPLOYEES WHO
WERE SMOKING WHEN HE WAS CAUGHT WERE NOT DISCIPLINED, ALTHOUGH THE
ACCOSTING OFFICIAL COULD SEE THEM.  DESPITE "NO SMOKING" SIGNS, IT WAS
THE PRACTICE OF THE MEN TO SMOKE ON THE SLY.  OTHER MEN HAVE BEEN LAID
OFF TWO WEEKS FOR SMOKING, BUT NELSON WAS CAUGHT AND "OTHERS" HAVE BEEN
SEEN BY FOREMEN AND NO LAY-OFFS RESULTED.  SCHOFIELD DIDN'T "KNOW OF
ANY ONE BEING DISCHARGED" FOR SMOKING.  HE WAS MADE T.W.O.C. LOCAL
FINANCIAL SECRETARY. 

IN THE WORDS OF THE C.I.O. OFFICIAL, "MR. SUMMERSBY SAW RED THE
MINUTE I MENTIONED SCHOFIELD'S AND NELSON'S NAMES." 

AS TOLD BY THE BOSS DYER WHO FOUND SCHOFIELD SMOKING - 

THIS OFFICIAL HAD SENT AN EMPLOYEE TO NOTIFY SCHOFIELD OF SUMMERSBY'S
DESIRE TO SEE HIM; HE HIMSELF WENT TO THE LOCKER ROOM TO DELIVER THE
MESSAGE.  HE ASKED ONE OF THE OTHER EMPLOYEES IN THE LOCKER ROOM TO
REMEMBER THE SCENE BECAUSE HE "KNEW PERCY SCHOFIELD'S CHARACTER."  IT
WAS HIS DUTY TO DETECT SMOKERS AND HE USUALLY LAID OFF, HIMSELF, ANY
MAN FOUND SMOKING.  HE HAD TIME TO LAY OFF SCHOFIELD WHILE WALKING WITH
HIM PART OF THE WAY TO SUMMERSBY'S OFFICE, BUT HE DID NOT DO SO.  "IT
WAS A PECULIAR CASE AND I WANTED TO THINK BEFORE I DID ANYTHING."  THIS
WAS THE ONLY CASE IN WHICH HE HAD EVER REPORTED A SMOKER TO A HIGHER
UP.  HE HAD LAID SCHOFIELD OFF FOR TWO WEEKS TWICE BEFORE, FOR
SMOKING.  IN SIX OR SEVEN YEARS, HE HAD CAUGHT SEVEN OR EIGHT SMOKERS
OF WHOM, EXCEPTING SCHOFIELD, ONLY ONE WAS DISCHARGED.  HE DIDN'T GO TO
THE WASH ROOM "VERY OFTEN."  "A VERY SHORT TIME BEFORE" HE HAD HEARD
THAT SCHOFIELD WAS SOMEWHAT ACTIVE IN THE C.I.O. 

ONE OF THE FELLOW EMPLOYEES PRESENT IN THE LOCKER-ROOM WHERE
SCHOFIELD WAS FOUND SMOKING, STATED THAT HE ALSO HAD BEEN SMOKING BUT
WAS NOT DOING SO WHEN THE BOSS DYER CAME IN, AND THAT THE THIRD MAN WAS
SMOKING AT THAT TIME BUT WASN'T OBSERVED.  HE GOT THE IMPRESSION, THEN,
THAT THE BOSS DYER SAID SOMETHING TO THE EFFECT THAT HE AT LAST "HAD"
SCHOFIELD AFTER HAVING BEEN AFTER HIM FOR SOME TIME.  HE "HAD NEVER
SEEN  ...  (THE BOSS DYER) GO TO THE LOCKER ROOM" BEFORE. 

SUMMERSBY TESTIFIED THAT HE HAD BEEN TOLD BY SCHOFIELD THAT HE WAS
"INTERESTED IN ORGANIZING THE C.I.O."; AND THAT HE DISCHARGED SCHOFIELD
FOR SMOKING. 

FOURTH.  DOMINATION OF THE FEDERATION. 

AS ALREADY NOTED, THE COURT OF APPEALS' OPINION DID NOT ESPECIALLY
PASS UPON THIS CONTENTION.  SINCE, HOWEVER, THE COURT DID NOT ENFORCE
THE BOARD'S ORDER TO CEASE DOMINATING AND TO DISESTABLISH THE
FEDERATION, AS WE THINK IT SHOULD HAVE, APPROPRIATE EVIDENCE ON THIS
ISSUE WILL BE POINTED OUT. 

A MACHINIST, EMPLOYED ELEVEN YEARS BY RESPONDENT, TESTIFIED - 

HE ATTENDED A MEETING IN SUMMERSBY'S OFFICE ON APRIL 6, THE DAY OF
SCHOFIELD'S DISCHARGE.  SUMMERSBY "SAID THAT HE WOULDN'T RECOGNIZE THE
C.I.O. AND THAT IT WOULD BE MUCH BETTER FOR US TO JOIN OUR OWN UNION
THAN TO BE BOTHERED BY THIS C.I.O."  WHICH WOULD REQUIRE THE MEN TO GO
OUT ON SYMPATHY STRIKES.  THIS EMPLOYEE SAW FEDERATION CARDS AND
LITERATURE "ON THE TABLE" IN THE COMPANY'S OFFICE.  THESE WERE "HANDED
AROUND" AND ONE OR TWO WERE PICKED UP BY THE EMPLOYEES PRESENT; WHEN
SUMMERSBY AND THE VICE PRESIDENT OF THE COMPANY LEFT THE ROOM, THE
EMPLOYEES "SEEMED TO PICK THEM UP MORE FREQUENTLY."  TEMPORARY OFFICERS
OF THE FEDERATION WERE CHOSEN THERE, IN SUMMERSBY'S OFFICE.  A DAY OR
SO LATER, THE FEDERATION MET IN THE COMPANY'S SHIPPING ROOM WITH ONE
HUNDRED AND FIFTY TO TWO HUNDRED MEN PRESENT; SUMMERSBY ADDRESSED THE
MEETING AND SAID HE WOULD NOT RECOGNIZE THE C.I.O. AND THAT IT WAS
BETTER TO HAVE OUR OWN UNION.  THE MACHINIST DISTRIBUTED IN THE PLANT
THE FEDERATION CARDS WHICH HE HAD "PICKED  ...  UP" IN "SUMMERSBY'S
OFFICE"; THE FEDERATION CARDS "WERE THERE."    FROM TESTIMONY OF OTHER
EMPLOYEES, IT APPEARED THAT -    AT THE MEETING ON THE 6TH (THE DAY
SCHOFIELD WAS DISCHARGED) IN SUMMERSBY'S OFFICE, FEDERATION CARDS AND
CIRCULARS WERE SEEN, AND AN EMPLOYEE DISTRIBUTED THESE CARDS; SUMMERSBY
SAID "HE WOULD LIKE TO HAVE THIS LOCAL UNION" AND "WOULDN'T RECOGNIZE
THE C.I.O."  THREE "JIGGERS" HAD SEEN SUMMERSBY ON APRIL 5 ABOUT WAGES
AND CONDITIONS OF EMPLOYMENT; HE "THOUGHT IT WOULD BE BETTER IF WE HAD
OUR OWN UNION" INSTEAD OF PAYING OUTSIDE FELLOWS.  "SOMEONE" SUGGESTED
THAT CARDS BE PASSED OUT FOR A LOCAL UNION.  WORD WAS PASSED OUT BY
FELLOW WORKERS THAT THE COMPANY WOULD PAY FOR TIME SPENT AT THE MEETING
IN THE SHIPPING ROOM, AT WHICH SUMMERSBY "SAID HE WOULDN'T RECOGNIZE
C.I.O. OR A.F. OF L., NO OUTSIDE UNION," THAT IT WOULD "BE BETTER IF WE
HAD A LOCAL UNION" INSTEAD OF PAYING OTHERS TO RIDE AROUND IN BIG CARS
AND THAT "HE WOULD NOT TOLERATE C.I.O."  WORKERS WERE SEEN PASSING OUT
FEDERATION CARDS IN THE PLANT DURING WORKING HOURS.  PAY WAS GIVEN FOR
THE HALF-HOUR SPENT IN THE SHIPPING ROOM MEETING AND THIS TIME WAS
INCLUDED BY INSTRUCTION OF THE "BOSS OF THE FRAMES."  FEDERATION CARDS
WERE PASSED OUT "OPENLY" BY MEN ON THE DAY OF THE SHIPPING ROOM
MEETING.  BOSSES WERE SEEN WITH CARDS.  ONE EMPLOYEE WAS GIVEN HIS
FEDERATION CARD BY THE BOSS OF HIS DEPARTMENT.  ANOTHER WAS ASKED BY
HIS FOREMAN WHETHER HE HAD JOINED THE FEDERATION. 

AN EMPLOYEE TESTIFIED - 

SUMMERSBY SENT FOR HIM ON APRIL 6, (THE DAY OF SCHOFIELD'S
DISCHARGE).  THE PAYMASTER CAME TO HIS HOUSE FOR HIM AND SAID HE WAS
GLAD THAT THIS MAN WASN'T "DEEP  ...  IN THE C.I.O.," AND TOOK HIM TO
THE OFFICE.  THERE SUMMERSBY TOLD HIM HE WAS SORRY THAT MEN IN HIS LINE
OF WORK (IN THE GRAY ROOM) HAD BEEN LEFT OUT OF THE MEETING THAT
MORNING IN SUMMERSBY'S OFFICE.  THIS EMPLOYEE HAD TOLD THE MEN IN THE
GRAY ROOM THAT THEY SHOULDN'T SIGN CARDS FROM A MEETING AT WHICH THEY
HAD NOT BEEN REPRESENTED.  SUMMERSBY TOLD HIM THE C.I.O. WOULD TAKE
MONEY OUT OF THE PLANT AND THAT A "COMMITTEE HAD GOTTEN TOGETHER  ...
TO FORM THIS LOCAL UNION, BECAUSE HE INFORMED THEM THAT HE WOULDN'T
RECOGNIZE THE C.I.O., AND THEY STARTED TO ORGANIZE A UNION THAT HE
WOULD RECOGNIZE.  HE SAID HE WOULD RECOGNIZE THE LOCAL."  HE AND
SUMMERSBY THEN WENT INTO THE MEETING IN AN ADJOINING OFFICE ("ONE IS
MR. PAWSON'S (RESPONDENT'S VICE PRESIDENT) AND THE OTHER IS MR.
SUMMERSBY'S").  A LEADER AT THIS MEETING IN COMPANY OFFICES AND
ATTENDED BY SUMMERSBY, "SAID A FEW OF THEM GOT TOGETHER AND DECIDED
THEY DIDN'T WANT A C.I.O., THAT THEY THOUGHT THEY WOULD BE BETTER OFF
IF THEY HAD A LOCAL UNION, THAT THEY HAD A TALK WITH MR. SUMMERSBY, AND
MR. SUMMERSBY WOULDN'T RECOGNIZE THE C.I.O., AND RATHER THAN HAVE
TROUBLE HE WAS GOING TO SEE IF WE COULDN'T HAVE A LOCAL UNION." 
SUMMERSBY "EXPLAINED ADVANTAGES OF THE LOCAL UNION AND SPOKE OF THE
B.D.A." 

ANOTHER EMPLOYEE SUPPLIED EVIDENCE THAT A WEEK OR TWO AFTER NELSON
WAS FIRED, THE TIMEKEEPER TOOK HIM TO SEE SUMMERSBY, WHO ASKED ABOUT A
C.I.O. CARD WHICH HAD BEEN ON THE BACK OF THIS EMPLOYEE'S CAR, AND THAT
SUMMERSBY THEN "SAID HE WOULDN'T RECOGNIZE IT" AND COULD CLOSE THE
PLANT DOWN. 

THE FINANCIAL SECRETARY OF THE FEDERATION STATED - 

HE WAS FIRST GIVEN A TEMPORARY APPOINTMENT AT THE MEETING IN
SUMMERSBY'S OFFICE, APRIL 6, WHEN SUMMERSBY SAID "HE DIDN'T LIKE THE
IDEA OF BARGAINING OUTSIDE."  THE MEN PRESENT IN THE AFTERNOON MEETING
IN SUMMERSBY'S OFFICE "ASKED FOR THE PRIVILEGE OF USING THE OFFICE TO
FIND OUT HOW WE HAD MADE OUT ON OUR CARDS."  THE MEETING IN THE
SHIPPING ROOM WAS A DAY OR SO LATER.  AFTER THE MORNING MEETING IN
SUMMERSBY'S OFFICE ON THE 6TH, THIS TEMPORARY FEDERATION OFFICIAL
STARTED PASSING OUT FEDERATION CARDS FOR WHICH SUMMERSBY HAD GIVEN
PERMISSION.  FEDERATION CIRCULARS WERE POSTED ON PLANT BULLETIN
BOARDS.  FEDERATION APPLICATION CARDS WERE PASSED OUT BY "ALL OF US
THAT WERE IN THE OFFICE AT THAT FIRST MEETING."  OFFICERS OF THE
FEDERATION WERE SUBSEQUENTLY ELECTED (APRIL 11).  "ALL US MEN WHO WERE
IN THE OFFICE THE FIRST DAY, I THINK WE ACTED AS A COMMITTEE."  BETWEEN
APRIL 6 AND 11, SUMMERSBY PERMITTED THE TEMPORARY COMMITTEE TO MEET IN
AN OLD COMPANY OFFICE IN THE PLANT.  THE PAYMASTER GAVE THEM A LIST OF
THE MEN IN THE PLANT BY WHICH TO DETERMINE THE NECESSARY FIFTY-ONE PER
CENT.  ON APRIL 9, PRIOR TO THE ELECTION OF THE FEDERATION'S OFFICERS
ON THE 11TH, THIS TEMPORARY COMMITTEE PRESENTED A LETTER TO SUMMERSBY
STATING THAT THEY REPRESENTED FIFTY-ONE PER CENT OF THE MEN.  THAT SAME
DAY, SUMMERSBY GRANTED RECOGNITION TO THE FEDERATION.  THIS EMPLOYEE
FELT NO NEED FOR ORGANIZATION, EXCEPT FOR "BETTER FEELING" WHICH HE
THOUGHT "WAS NECESSARY BECAUSE THE C.I.O. WAS GOING TO DO THE SAME
THING."  HE HELPED FORM THE FEDERATION "PARTLY" TO STOP THE C.I.O., AND
BECAUSE THE C.I.O. HAD ALREADY STARTED.  A COMPANY CAR WAS USED BY HIM
ON ONE OCCASION FOR PURPOSES OF THE FEDERATION.  MEETINGS OF THE
EXECUTIVE COMMITTEE OF THE FEDERATION WERE HELD IN A CLUB ROOM "ON
PROPERTY OWNED BY THE B.D.A."  THIS WITNESS ENGAGED AS ATTORNEY FOR THE
FEDERATION ONE WHO HE KNEW "HAD REPRESENTED  ...  (THE COMPANY) ON SOME
CASES"; HE HIMSELF LIVES IN A HOUSE OWNED BY THE COMPANY.  SOME
FEDERATION DUES WERE COLLECTED ON THE COMPANY'S PREMISES; MEMBERS WERE
NOT SUSPENDED FOR DUES DELINQUENCY AND MAY ALSO BE MEMBERS OF ANY LABOR
UNION OR SOCIETY.  THE FEDERATION STARTED ABOUT A WEEK AFTER THE C.I.O.
DRIVE; IT HAD NO INCOME OF ITS OWN PRIOR TO THE LAST WEEK IN APRIL. 
EVENTUALLY IT AFFILIATED WITH AN OUTSIDE UNION STILL DESIGNATED "AS THE
B.D.A. EMPLOYEES' FEDERATION" "TO BRING A LITTLE MORE PRESTIGE AND TO
PROVE TO THE ONES THAT WERE SKEPTICAL, THAT WE WERE NOT A COMPANY
UNION." 

THE FIRST VICE PRESIDENT OF THE FEDERATION TESTIFIED - 

HE NEGOTIATED RECOGNITION OF THE FEDERATION, APRIL 9, (THREE AND SIX
DAYS RESPECTIVELY AFTER DISCHARGE OF SCHOFIELD AND NELSON) AS ITS
ACTING PRESIDENT.  ON THAT DAY, HE CALLED A MEETING OF THE ORGANIZING
COMMITTEE IN "THE LITTLE OFFICE IN THE GRAY ROOM," SHOWED THEM THAT
THEY HAD FIFTY-ONE PER CENT SIGNED CARDS, AND THEN WENT TO SUMMERSBY'S
OFFICE.  IN SUMMERSBY'S OFFICE, THE WITNESS AND COMPANY OFFICIALS
COUNTED THE SIGNED CARDS AND CHECKED THEM AGAINST A LIST OF EMPLOYEES
WHICH SUMMERSBY ASKED THE PAYMASTER TO GET.  THE CARDS WERE NOT CHECKED
TO SEE IF EACH SIGNER WAS ELIGIBLE; THE MANAGEMENT TOOK THE TEMPORARY
COMMITTEE'S WORD FOR IT.  AND THE CARDS WERE LEFT WITH SUMMERSBY.  THE
WITNESS DIDN'T KNOW THAT THE FEDERATION PLANNED TO DO ANYTHING THAT
"WAS ANY DIFFERENT" FROM WHAT THE EMPLOYEES PREVIOUSLY COULD HAVE DONE
BY GRIEVANCE COMMITTEES.  HE HAD HEARD RUMORS THAT A BOSS HAD
FEDERATION CARDS OR SPOKE TO EMPLOYEES ABOUT THEM, AND BELIEVED ONE MAN
QUIT WORK AS THE RESULT OF POSTING C.I.O. HAND-BILLS.  HE SPOKE AT THE
SHIPPING ROOM MEETING AND ASKED SUMMERSBY TO SPEAK THERE.  SUMMERSBY
DID SPEAK.  ALONG THE LINES OF HIS CONVERSATION AT THE TWO PREVIOUS
MEETINGS IN HIS OFFICE, SUMMERSBY TOLD THIS GATHERING OF EMPLOYEES THAT
HE PREFERRED A LOCAL AND "WAS NOT IN FAVOR OF BARGAINING WITH THE
C.I.O." 

T.W.O.C.'S STATE DIRECTOR FOR RHODE ISLAND STATED - 

ON APRIL 7, HE SAW SUMMERSBY AND TOLD HIM T.W.O.C. HAD "ABOUT SEVENTY
FIVE PER CENT" OF THE MEN SIGNED.  SUMMERSBY REFUSED TO SAY THEN THAT
HE WOULD RECOGNIZE T.W.O.C.  APRIL 16, THE DIRECTOR, A FEDERAL
CONCILIATOR AND A T.W.O.C. ORGANIZER SAW SUMMERSBY AGAIN AND WERE TOLD
BY SUMMERSBY THAT "HE HAD A UNION" AND WOULDN'T RECOGNIZE THE C.I.O. AS
HE WAS "AFRAID OF AN OUTSIDE UNION."  IT WAS AGREED THAT HE WOULD HEAR
FROM SUMMERSBY'S ATTORNEY AFTER THE FIRST (APRIL 7) MEETING, BUT HE
NEVER HEARD.  A FORM CONTRACT WAS SUBMITTED TO SUMMERSBY ON THE 16TH,
BUT BY THAT DATE "HE HAD DEFINITELY DECIDED THAT HE WOULD REFUSE TO
BARGAIN WITH THE C.I.O." 

ACCORDING TO THE COMPANY'S VICE PRESIDENT - 

HE WAS PRESENT PART OF THE TIME AT ONE OF THE MEETINGS IN SUMMERSBY'S
OFFICE ON APRIL 6, WHERE CARDS AND LITERATURE WERE PRESENT AND A UNION
WAS DISCUSSED.  SUMMERSBY WAS HEARD TO EXPRESS THE OPINION "THAT HE
WOULD PREFER TO DEAL WITH A UNION OF HIS OWN EMPLOYEES RATHER THAN TO
DEAL WITH OUTSIDE INFLUENCES." 

ONE OF THE MEN PRESENT WHEN SCHOFIELD WAS FOUND SMOKING TESTIFIED
THAT A SALARIED EMPLOYEE WHO REPORTS "THINGS WHICH ARE DONE WRONG" CAME
AROUND AND ASKED EVERYBODY IF HE HAD JOINED THE LOCAL UNION; AT THE
MEETING IN THE SHIPPING ROOM, SUMMERSBY SAID HE WOULD NOT RECOGNIZE THE
C.I.O. BUT WOULD RECOGNIZE A LOCAL; THE WITNESS WAS PAID FOR THE
FIFTEEN MINUTES SPENT AT THAT MEETING; THE MEN WERE TOLD BY THE TIME
KEEPER THAT THEY WOULD BE SO PAID.  AN OFFICIAL OF THE FEDERATION SAID,
"THE IMPRESSION WAS THAT MR. SUMMERSBY PROBABLY WOULDN'T RECOGNIZE" THE
C.I.O.; THIS OFFICIAL WAS "ONE OF THE FIRST" ORGANIZERS OF THE
FEDERATION AND CONVEYED TO PEOPLE THE IMPRESSION THAT SUMMERSBY
WOULDN'T RECOGNIZE THE C.I.O. 

AS RELATED BY SUMMERSBY, PRESIDENT AND GENERAL MANAGER OF RESPONDENT
 

A WAGE INCREASE WAS ANNOUNCED MARCH 31.  AFTER HE MET IN HIS OFFICE
ON APRIL 6, (THE DAY OF NELSON'S DISCHARGE) WITH THE COMMITTEE OF
"JIGGERS," LATER THE SAME DAY HE WAS ASKED FOR A PLACE IN WHICH THE
FEDERATION'S TEMPORARY COMMITTEE COULD MEET.  HE ANSWERED THE REQUEST
BY SAYING, "YOU CAN HAVE MY OFFICE AND MAKE YOURSELVES COMFORTABLE." 
THAT AFTERNOON, AS HE WAS READY TO LEAVE, THE TEMPORARY COMMITTEE MET
IN HIS OFFICE AND HE WAS "ADVISED THAT THEY WERE ORGANIZING A LOCAL
UNION  ...  I TOLD THEM THAT I WOULD GRANT THEM THE SAME PRIVILEGES I
WOULD GRANT ANY OTHER UNION ...  "  TWO DAYS AFTER RECOGNIZING THE
FEDERATION, HE PLACED AND PAID FOR AN AD IN A LOCAL PAPER, ENTITLED
"THE STRIKE THAT FAILED" BECAUSE IN PART, AS HE SAID, "THE B.D.A.
EMPLOYEES' FEDERATION HAD FORMED AND HAD TAKEN THE ORGANIZATION INTO
THEIR OWN HANDS, AND HAD SHOWN THAT THEY WERE STILL REAL CITIZENS." 
RESPONDENT IS OWNED BY AN ENGLISH CONCERN AND A STATEMENT BY HIM
APPEARED IN THE LOCAL PAPER, ON APRIL 25, DISCLOSING THE POSSIBILITY OF
THE COMPANY'S MOVING THE PLANT OUT OF THE UNITED STATES IF THERE WERE
TO BE "LABOR UNCERTAINTIES." 

HE RECOGNIZED THE FEDERATION APRIL 9, AND ON APRIL 13, TOLD THE
FEDERAL CONCILIATOR THAT AN ELECTION COULD NOT BE HELD, SINCE THE
FEDERATION HAD ALREADY BEEN RECOGNIZED.  AND ON THE 16TH, SUMMERSBY
TOLD SALERNO THAT HIS PROPOSED T.W.O.C. CONTRACT WOULD BE TAKEN UP WITH
SUMMERSBY'S LAWYER. 

FIFTH.  DESIGNATION OF T.W.O.C. AS BARGAINING AGENT. 

THE COURT BELOW FOUND NO SUBSTANTIAL EVIDENCE TO SUPPORT THE BOARD'S
FINDING THAT A MAJORITY OF RESPONDENT'S EMPLOYEES JOINED THE T.W.O.C.,
OR THAT "THE T.W.O.C.  ...  EVER CAME INTO ACTUAL EXISTENCE WITH
AUTHORITY TO NEGOTIATE A CONTRACT WITH THE RESPONDENT."  MUCH OF THE
TESTIMONY ALREADY REFERRED TO BORE UPON THE GENESIS OF T.W.O.C. AT
RESPONDENT'S PLANT. 

SCHOFIELD SAID: 

BY APRIL 4 HE HAD "FOUR HUNDRED AND SIXTY-FIVE OR FOUR HUNDRED AND
SIXTY-SEVEN" SIGNED APPLICATION CARDS "MARKED DOWN."  THE CARDS WERE
SENT TO BOSTON.  A FEW MEN PAID DUES BUT COLLECTION WAS STOPPED.  "
...  WE HAD A MAJORITY OF CARDS SIGNED."  DUES ARE NOT COLLECTED UNTIL
MANAGEMENT GRANTS RECOGNITION.  NO LOCAL C.I.O. (T.W.O.C.)  ENTITY HAD
BEEN FORMED FOR THE PLANT; "WE HAD THE FIFTY-ONE PER CENT, BUT THIS
COMPANY UNION STUFF AND DISCHARGE AND EVERYTHING CAME ALONG, AND WE
HAVE JUST HAD TO WAIT FOR THIS HEARING  ...  " 

NELSON STATED THAT HE TOLD THE TIMEKEEPER, ON APRIL 2, "IT'S ALL OVER
BUT THE SHOUTING  ...  WE HAVE WELL OVER SIXTY PER CENT SIGNED UP ALL
READY."  AND FROM THE TESTIMONY OF AN OFFICER OF THE FEDERATION IT
APPEARED THAT THE C.I.O. DRIVE RESULTED IN A NUMBER OF SIGNATURES, AND
THAT BOTH ORGANIZATIONS COULD POSSIBLY CLAIM FIFTY-ONE PER CENT OF THE
EMPLOYEES SIGNED UP. 

AS EXPLAINED BY THE T.W.O.C. STATE DIRECTOR - 

A CHARTER OR LOCAL IS UNNECESSARY FOR MEMBERSHIP IN T.W.O.C.; NO
CHARTER TO A LOCAL IS GRANTED UNTIL AFTER RECOGNITION.  MEMBERS OF THE
FEDERATION ARE MEMBERS IN GOOD STANDING OF T.W.O.C., EVEN IF THEY HAVE
NOT PAID DUES OR INITIATION FEES.  THE T.W.O.C. CARDS WERE BROUGHT TO
HIM DURING THE FIRST WEEK IN APRIL.  SUMMERSBY, APRIL 9, REFUSED TO
AGREE TO HAVE THE FEDERAL CONCILIATOR, OR A THIRD PARTY, COUNT THE
T.W.O.C. CARDS.  EMPLOYEES ARE ELIGIBLE TO MEMBERSHIP IN T.W.O.C.,
WITHOUT FORMATION OF A PLANT LOCAL. 

THE T.W.O.C. DIRECTOR'S SECRETARY STATED THAT THE T.W.O.C. CARDS WERE
BROUGHT IN BEFORE APRIL 12.  IT WAS AGREED AT THE HEARING THAT, AFTER
RESPONDENT CHECKED AGAINST THE ORIGINAL SIGNED CARDS, T.W.O.C. HAD A
LIST OF FOUR HUNDRED AND EIGHTY-TWO NAMES TAKEN FROM THOSE CARDS.  AND
IT WAS STIPULATED THAT THESE CARDS WERE SIGNED "ON OR BEFORE APRIL 10,
1937." 

SHIFT IN MEMBERSHIP. 

RESPONDENT HAS CONTENDED BEFORE THE BOARD, AS HERE, THAT IF THE
T.W.O.C. DID ACTUALLY REPRESENT A MAJORITY OF ITS EMPLOYEES ON APRIL
4(AS THE BOARD FOUND), A SHIFT IN MEMBERSHIP HAD GIVEN THE FEDERATION A
MAJORITY WHEN THE COMPANY ON APRIL 9 RECOGNIZED IT AS EXCLUSIVE
BARGAINING REPRESENTATIVE.  HOWEVER, THE BOARD FOUND THAT "THE RECORD
IS CLEAR THAT, HAD IT NOT BEEN FOR THE UNFAIR LABOR PRACTICES OF THE
RESPONDENT IN ORGANIZING AND FOSTERING THE FEDERATION AND IN
PERSUADING, INTIMIDATING AND COERCING ITS EMPLOYEES TO JOIN THE
FEDERATION AND LEAVE THE T.W.O.C., THE RESPONDENT'S EMPLOYEES WOULD
HAVE REMAINED MEMBERS OF THE T.W.O.C."  IN VIEW OF THE SUBSTANTIAL
SUPPORT IN THE EVIDENCE FOR THE BOARD'S FINDINGS THAT THE COMPANY
INTIMIDATED AND COERCED ITS EMPLOYEES AND DOMINATED THE FEDERATION, THE
BOARD PROPERLY CONCLUDED THAT "THE UNFAIR LABOR PRACTICES OF THE
RESPONDENT CANNOT OPERATE TO CHANGE THE BARGAINING REPRESENTATIVE
PREVIOUSLY SELECTED BY THE UNTRAMMELLED WILL OF THE MAJORITY."  FN7
AND, ACCORDINGLY, THE BOARD WAS JUSTIFIED IN ITS FINDING "THAT ON APRIL
4, 1937, AND AT ALL TIMES THEREAFTER, THE T.W.O.C., PURSUANT TO SECTION
9(A) OF THE ACT, WAS THE EXCLUSIVE REPRESENTATIVE OF ALL THE EMPLOYEES
IN THE APPROPRIATE UNIT FOR PURPOSES OF COLLECTIVE BARGAINING  ...  " 
SIXTH.  THE "SIT DOWN." 

AS ONE OF THE APPARENTLY ALTERNATIVE GROUNDS OF ITS DECISION, THE
CIRCUIT COURT OF APPEALS DECLARED THE BOARD WITHOUT AUTHORITY TO ORDER
REINSTATEMENT OF NELSON AND SCHOFIELD BECAUSE OF SO-CALLED UNLAWFUL
CONDUCT AND THE ALLEGED INCITEMENT OF A "SIT DOWN" STRIKE WITHIN THE
MEANING OF THE FANSTEEL CASE.  FN8  THE OPINION STATED THAT "NELSON
EVEN THREATENED TRUCK DRIVERS DELIVERING MATERIALS TO THE PLANT WITH
VIOLENCE, AND TO DESTROY THE SPUR TRACKS OVER WHICH MATERIALS WERE
DELIVERED TO THE PLANT,  ...  THE AFFIRMATIVE ACTION THAT IS AUTHORIZED
IS TO MAKE THESE REMEDIES EFFECTIVE IN THE REDRESS OF THE EMPLOYEES'
RIGHTS, TO ASSURE THEM SELF-ORGANIZATION AND FREEDOM IN REPRESENTATION,
NOT TO LICENSE THEM TO COMMIT TORTIOUS ACTS OR TO PROTECT THEM FROM THE
APPROPRIATE CONSEQUENCES OF UNLAWFUL CONDUCT.  WE ARE OF THE OPINION
THAT TO PROVIDE FOR THE REINSTATEMENT OR REEMPLOYMENT OF EMPLOYEES
GUILTY OF THE ACTS, WHICH IT IS NOT DENIED WERE COMMITTED IN THIS
INSTANCE, WOULD NOT ONLY NOT EFFECTUATE THE POLICY OF THE ACT, BUT
WOULD DIRECTLY TEND TO MAKE ABORTIVE ITS PLAN FOR PEACEABLE
PROCEDURE." 

WE FIND NO SUCH ISSUE RAISED BY RESPONDENT'S PLEADINGS BEFORE THE
BOARD.  RESPONDENT MADE REQUEST FOR SPECIAL FINDINGS BY THE BOARD, BUT
INCLUDED NONE THAT NELSON AND SCHOFIELD HAD BEEN GUILTY OF ANY UNLAWFUL
CONDUCT.  NELSON CATEGORICALLY DENIED HAVING MADE THREATS OF VIOLENCE. 
THE COURT WAS APPARENTLY REFERRING TO THE TESTIMONY OF A TRUCK DRIVER
WHICH APPEARS IN THE RECORD.  AN OBJECTION OF THE BOARD'S
REPRESENTATIVE TO THE INTRODUCTION OF THIS PARTICULAR TESTIMONY WAS
OVERRULED BY THE TRIAL EXAMINER WHEN RESPONDENT'S ATTORNEY MADE THE
FOLLOWING STATEMENT:  "IF YOUR HONOR PLEASE, MAY I POINT OUT THAT WHILE
MR. NELSON WAS ON THE WITNESS STAND IN CROSS-EXAMINATION I ASKED HIM IF
HE DID NOT SAY CERTAIN THINGS AT THIS TIME AND PLACE, THAT THIS WITNESS
HAS BEEN REFERRING TO, WHICH THE WITNESS NELSON DENIES.  THE TESTIMONY
OF THIS WITNESS THAT NELSON DID SAY THOSE THINGS IS IN CONTRADICTION OF
MR. NELSON'S TESTIMONY AND IS CLEARLY ADMISSIBLE AS TENDING TO IMPEACH
THE VERACITY OF MR. NELSON'S TESTIMONY.  ASIDE FROM THAT I ALSO SUBMIT
IT AS BEARING ON THE TYPE OF CONDUCT AND THE ATTITUDE OF THE
REPRESENTATIVES AND ORGANIZERS OF THIS T.W.O.C. GETTING MEMBERSHIP AND
CONDUCTING THE AFFAIRS OF THIS ORGANIZATION." 

THIS TRUCK DRIVER'S HELPER TESTIFIED THAT ON THE MORNING OF APRIL 8,
AFTER SCHOFIELD AND NELSON HAD BEEN LAID OFF, HE SAW NELSON, SCHOFIELD
AND A THIRD "LITTLE FELLOW FROM THE C.I.O."  "OUTSIDE THE MILL YARD." 
HE NOTICED NELSON "GOING UP AND DOWN MOTIONING ...  GOING LIKE THIS
(ILLUSTRATING BY WAVING ARMS, SQUATTING AND STANDING.)"  AS THIS TRUCK
DRIVER RECOLLECTED, SCHOFIELD WAS NOT "DOING ANYTHING."  "IF ANYBODY
WAS LOOKING OUT THE EAST DOOR THEY COULD" SEE NELSON OR SCHOFIELD
MOVING THEIR HANDS THAT MORNING; NELSON "MADE A MOTION TO SIT DOWN,
THAT IS ALL," OUT "ON THE MAIN ROAD GOING TO THE PLANT."  HE "COULDN'T
SAY THAT" ANY WORKERS WOULD HAVE SEEN NELSON; HE "COULDN'T SAY THAT,
WHETHER THEY COULD SEE OUT OR NOT.  I DON'T KNOW."  AN EMPLOYEE, NOT
NELSON OR SCHOFIELD, WHO "WENT THROUGH THE DEPARTMENT SHOUTING 'SIT
DOWN STRIKE,'" WAS TAKEN FOR AN AUTOMOBILE RIDE BY THE COMPANY'S VICE
PRESIDENT, TALKED TO, GIVEN LUNCH AND SENT HOME TO BED WITHOUT LOSS OF
PAY AND WAS STILL WORKING FOR THE COMPANY AT THE TIME OF THE HEARING. 
WHEN ASKED, "YOU REMEMBER YOU SAID, 'WELL, WE CAN BLOW UP THE
RAILROAD?'," NELSON ANSWERED, "NO, ABSOLUTELY NOT." 

IN VACATING THE BOARD'S ORDER OF REINSTATEMENT ON THE GROUND THAT
UNDENIED EVIDENCE SHOWED THAT NELSON AND SCHOFIELD HAD, AFTER THEIR
UNLAWFUL DISCHARGE, INCITED OR THREATENED UNLAWFUL CONDUCT, THE COURT
ACTED WITHOUT ANY JUSTIFICATION. 

CONGRESS HAS PLACED THE POWER TO ADMINISTER THE NATIONAL LABOR
RELATIONS ACT IN THE LABOR BOARD, SUBJECT TO THE SUPERVISORY POWERS OF
THE COURTS OF APPEALS AS THE ACT SETS OUT.  IF THE BOARD HAS ACTED
WITHIN THE COMPASS OF THE POWER GIVEN IT BY CONGRESS, HAS, ON A CHARGE
OF UNFAIR LABOR PRACTICE, HELD A "HEARING," WHICH THE STATUTE REQUIRES,
COMPORTING WITH THE STANDARDS OF FAIRNESS INHERENT IN PROCEDURAL DUE
PROCESS, HAS MADE FINDINGS BASED UPON SUBSTANTIAL EVIDENCE AND HAS
ORDERED AN APPROPRIATE REMEDY, A LIKE OBEDIENCE TO THE STATUTORY LAW ON
THE PART OF THE COURT OF APPEALS REQUIRES THE COURT TO GRANT
ENFORCEMENT OF THE BOARD'S ORDER.  UNTIL GRANTED SUCH ENFORCEMENT, THE
BOARD IS POWERLESS TO ACT UPON THE PARTIES BEFORE IT.  AND THE PROPER
WORKING OF THE SCHEME FASHIONED BY CONGRESS TO DETERMINE INDUSTRIAL
CONTROVERSIES FAIRLY AND PEACEABLY DEMANDS THAT THE COURTS QUITE AS
MUCH AS THE ADMINISTRATIVE BODY ACT AS CONGRESS HAS REQUIRED. 

MINDFUL OF THE SEPARATE RESPONSIBILITIES CONGRESS HAS IMPOSED UPON
THE BOARD AND THE COURTS, WE HAVE CAREFULLY SCRUTINIZED THIS ENTIRE
RECORD.  WITHIN THE RANGE OF OUR EXAMINATION HAS APPEARED NOT MERELY
THE TESTIMONY BUT ALSO THE PROCEDURE FOLLOWED FROM THE FILING OF THE
CHARGE BEFORE THE BOARD TO FINAL DECREE OF THE COURT OF APPEALS.  THE
BOARD AND ITS REPRESENTATIVES SOLICITOUSLY GUARDED RESPONDENT'S AND
INTERVENOR'S RIGHT TO A FULL AND FAIR HEARING; MANIFESTED LIBERALITY IN
RULING UPON EVIDENCE PROPOSED BY BOTH SIDES; AND CONDUCTED THE
PROCEEDINGS IN A MANNER CALCULATED TO BRING ABOUT A JUST RESULT.  AND
AS WE HAVE POINTED OUT, SUBSTANTIAL EVIDENCE SUPPORTED THE RESULT WHICH
THE BOARD DID REACH.  FN9  NOTWITHSTANDING, THE COURT BELOW DECLINED TO
ORDER ENFORCEMENT OF THE BOARD'S ORDER, AND THE IMPLICATIONS OF ITS
OPINION ARE THAT THE BOARD WITHOUT A PROPER REGARD FOR EITHER THE
LIMITATIONS ON ITS POWER OR THE EVIDENCE MADE FINDINGS ALL OF WHICH HAD
NO SUBSTANTIAL SUPPORT. 

BUT IN REACHING THIS CONCLUSION THE COURT OF APPEALS ITSELF FAILED TO
GIVE PROPER REGARD TO THE EVIDENCE WHICH WAS BEFORE THE BOARD, WHICH
APPEARED IN THE RECORD BEFORE THE COURT AND WHICH WE HAVE SET OUT IN
THIS OPINION.  IN REFUSING TO ENFORCE THE BOARD'S ORDER, THE COURT
EXCEEDED THE POWER GIVEN IT.  THE CAUSE IS REVERSED AND REMANDED WITH
DIRECTIONS TO ENFORCE THE BOARD'S ORDER WITHOUT CONDITIONS OR
QUALIFICATIONS.  REVERSED. 

FN1  308 U.S. 549; CF. LABOR BOARD V. WATERMAN STEAMSHIP CO., 309
U.S. 206. 

FN2  LABOR BOARD V. FALK CORP., 308 U.S. 453, 462. 

FN3  SECTION 10(E) OF THE NATIONAL LABOR RELATIONS ACT GIVES THE
BOARD POWER TO PETITION ANY CIRCUIT COURT OF APPEALS OF THE UNITED
STATES FOR THE ENFORCEMENT OF ITS ORDER; GRANTS THESE COURTS EXCLUSIVE
JURISDICTION AND PROVIDES THAT "UPON  ...  (THE BOARD'S FILING A
TRANSCRIPT OF THE ENTIRE RECORD IN THE PROCEEDING), THE COURT SHALL
CAUSE NOTICE THEREOF TO BE SERVED UPON SUCH PERSON, AND THEREUPON SHALL
HAVE JURISDICTION OF THE PROCEEDING AND OF THE QUESTION DETERMINED
THEREIN, AND SHALL HAVE POWER TO  ...  MAKE AND ENTER UPON THE
PLEADINGS, TESTIMONY, AND PROCEEDINGS SET FORTH IN SUCH TRANSCRIPT A
DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING
ASIDE IN WHOLE OR IN PART THE ORDER OF THE BOARD."  49 STAT. 449, 454. 

FN4  THE RECORD INDICATES THAT RESPONDENT DOES ROUGHLY ONE PER CENT
OF THE NATIONAL TOTAL OF BUSINESS IN ITS INDUSTRY. 

FN5  LABOR BOARD V. FAINBLATT, 306 U.S. 601. 

FN6  CONSOLIDATED EDISON CO. V. LABOR BOARD, 305 U.S. 197, 222; CF.,
LABOR BOARD V. JONES & LAUGHLIN CORP., 301 U.S. 1, 43.  A STRIKE AT
RESPONDENT'S PLANT IN 1929 APPARENTLY DID RESULT IN A STOPPAGE OF THE
FLOW OF THE INTERSTATE MOVEMENT OF MATERIALS TO AND OF PROCESSED GOODS
FROM RESPONDENT'S PLANT. 

FN7  CF. TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548, 557,
571, AFFIRMING 33 F.2D 13, AFFIRMING 24 F.2D 426; 25 ID. 873; 25 ID.
876, 877-8. 

FN8  LABOR BOARD V. FANSTEEL CORP., 306 U.S. 240. 

FN9  ACCEPTING THE UNDERLYING FINDINGS OF THE BOARD, AS WE DO, IT WAS
WITHIN THE PROVINCE OF THE BOARD TO DRAW THE INFERENCES THAT THE
GUARANTEES OF SEC. 7 OF THE ACT REQUIRED DISESTABLISHMENT OF THE
FEDERATION (FALK CASE, 308 U.S. 461, AND CASES CITED), AND THAT POSTING
OF APPROPRIATE NOTICES WAS NECESSARY.  ID., P. 462. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :











UNITED STATES V. TRUCKING CO., 310 U.S. 344 


NO. 724.  ARGUED APRIL 26, 29, 1940.  - DECIDED MAY 20, 1940.  -
REVERSED. 


COMMON CARRIERS BY MOTOR, IN INTERSTATE COMMERCE, FILED TARIFFS
PROVIDING RATES ON GOODS RESHIPPED IN THE ORIGINAL PACKAGES AS LESS
THAN TRUCK-LOAD CONSIGNMENTS IMMEDIATELY AFTER THEIR TRANSPORTATION AS
PARTS OF A TRUCK-LOAD OR CARLOAD CONSIGNMENT, AND ON LESSTHAN-TRUCK
LOAD GOODS WHICH, ON ARRIVAL AT THEIR IMMEDIATE DESTINATION, ARE TO BE
IMMEDIATELY RESHIPPED, IN THE ORIGINAL PACKAGES, AS PARTS OF A TRUCK
LOAD OR CARLOAD CONSIGNMENT.  THE INTERSTATE COMMERCE COMMISSION FOUND
THE RATES LOWER THAN OTHER RATES ON LIKE GOODS BETWEEN THE SAME POINTS;
THAT PRACTICALLY THEY COULD BE USED ONLY BY FORWARDERS AND A FEW LARGE
SHIPPERS; THAT THEY WOULD OPERATE FOR THE SPECIAL BENEFIT OF FORWARDERS
AND WOULD NOT BENEFIT OWNERS OF THE GOODS SHIPPED; AND THAT FORWARDERS
WOULD THEREBY BE AFFORDED TRANSPORTATION AT RATES LOWER THAN THOSE
CHARGED CERTAIN OTHER SHIPPERS UNDER SUBSTANTIALLY SIMILAR
CIRCUMSTANCES AND CONDITIONS, IN VIOLATION OF SEC. 216(D) OF THE
FEDERAL MOTOR CARRIER ACT.  HELD: 

1.  THAT THE COMMISSION WAS JUSTIFIED IN CANCELING THE PROPOSED
TARIFFS.  P. 347. 

2.  SECTION 216(D) OF THE MOTOR CARRIER ACT, LIKE PROVISIONS OF THE
INTERSTATE COMMERCE ACT, INSURES EQUALITY OF RATES FOR SUBSTANTIALLY
SIMILAR SERVICES.  P. 351. 

3.  ALTHOUGH THE EVIDENCE WAS UNDISPUTED, IT WAS FOR THE COMMISSION
TO DETERMINE THE QUESTION OF UNDUE PREFERENCE AND DISCRIMINATION.  P.
352. 

4.  THE COMMISSION WAS AUTHORIZED TO ACT IN THE MATTER ON ITS OWN
MOTION, WITHOUT COMPLAINT BY SHIPPERS.  P. 353. 

5.  THE COMMISSION PERFORMS ITS DUTIES IN THE INTERESTS OF SHIPPERS
GENERALLY, OF THE NATIONAL TRANSPORTATION SYSTEM, AND OF THE PUBLIC. 
P. 354. 

UNITED STATES ET AL. V. CHICAGO HEIGHTS TRUCKING CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES, WHICH SET
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION CANCELING TARIFFS
OF MOTOR CARRIERS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS ARE FORTY-ONE INTERSTATE COMMON CARRIERS OPERATING MOTOR
VEHICLES SUBJECT TO THE INTERSTATE COMMERCE COMMISSION UNDER THE
FEDERAL MOTOR CARRIER ACT OF 1935.  FN1  OUR DECISION TURNS UPON THE
VALIDITY OF AN ORDER OF THE COMMISSION CANCELLING CERTAIN PROPOSED
TARIFFS OF THESE CARRIERS UPON THE GROUND THAT THEY WERE UNLAWFULLY
DISCRIMINATORY IN AFFORDING LOWER RATES TO "FORWARDERS" OF FREIGHT THAN
TO OTHER SHIPPERS. 

FORWARDERS UTILIZE COMMON CARRIERS BY RAIL AND MOTOR TRUCK TO
TRANSPORT GOODS OWNED BY OTHERS.  THEY SOLICIT AND OBTAIN MANY SMALL
SHIPMENTS, FROM VARIOUS POINTS WITHIN AN AREA, AND CAUSE THEM TO BE
CARRIED IN LESS THAN TRUCK-LOAD OR CARLOAD LOTS TO A CONCENTRATION
CENTER WITHIN THE AREA.  THERE THEY ARE ASSEMBLED BY THE FORWARDER FOR
FURTHER TRANSPORTATION IN TRUCK-LOAD OR CARLOAD LOTS.  ALTHOUGH THE
FORWARDER GIVES OWNERS OF INDIVIDUAL SMALL SHIPMENTS HIS OWN CONTRACT
CORRESPONDING IN FORM TO THROUGH BILLS OF LADING AND ASSUMES
RESPONSIBILITY FOR SAFE THROUGH CARRIAGE, THE FORWARDER CUSTOMARILY
ARRANGES FOR THE PICKUP, ASSEMBLY AND TRANSPORTATION OF THE SHIPMENTS
BY CARRIERS FOR HIRE.  AND THE FORWARDERS, NOT THE OWNERS OF THE GOODS,
SELECT THE CARRIERS AND ROUTE THE SHIPMENTS.  UPON ARRIVAL OF A TRUCK
LOAD OR CARLOAD OF THE ASSEMBLED SMALL SHIPMENTS AT A DISTRIBUTION
CENTER, THE BULK SHIPMENT IS BROKEN UP, THE FORWARDER SEPARATES AND
TAKES POSSESSION OF THE ORIGINAL SMALL SHIPMENTS AND ARRANGES, WHERE
NECESSARY, THEIR FURTHER CARRIAGE TO THEIR VARIOUS FINAL DESTINATIONS
IN THE AREA SERVED BY THE PARTICULAR DISTRIBUTION POINT.  IN THIS FINAL
CARRIAGE OF THE SMALL SHIPMENT TO ITS ULTIMATE DESTINATION, THE
FORWARDER AGAIN UTILIZES CARRIERS FOR HIRE TO MOVE THESE LESS THAN
TRUCK-LOAD OR CARLOAD LOTS.  THUS, FORWARDERS MAY USE THE SERVICE OF
CARRIERS TO ASSEMBLE SHIPMENTS OF LESS THAN TRUCK-LOAD OR CARLOAD LOTS
AT THEIR CONCENTRATION CENTER, TO TRANSPORT THE ASSEMBLED TRUCK-LOAD OR
CARLOADS TO A DISTRIBUTION CENTER AND TO CARRY THE BROKEN UP SMALL
SHIPMENTS BEYOND THEIR BREAK-BULK DISTRIBUTION CENTER. 

THE FORWARDING BUSINESS HAS BEEN BUILT UPON THE EXPECTATION THAT A
MATERIAL PART OF THE TRANSPORTATION WHICH IT CAUSES TO BE PROVIDED FOR
SMALL SHIPPERS CAN BY CONSOLIDATION OF SMALL SHIPMENTS BE OBTAINED AT
TRUCK-LOAD OR CARLOAD RATES.  FOR THE FORWARDERS' BUSINESS WAS
ORIGINALLY MADE PROFITABLE BECAUSE IT COULD OPERATE UPON THE MARGIN OF
PROFIT REPRESENTED BY THE DIFFERENCE BETWEEN RAILROAD CARLOAD RATES
PAID BY THE FORWARDER AND THE HIGHER RATES, APPROXIMATING LESS THAN
CARLOAD RATES, WHICH THE FORWARDER CHARGED THE OWNER OF A SHIPMENT. 
FN2  BUT FORWARDERS IN USING RAILROADS ENJOY NO SPECIAL TARIFF RATES
AND PAY THE SAME PUBLISHED CARLOAD AND LESS THAN CARLOAD RATES THAT
OTHER SHIPPERS PAY.  AND THE QUESTION HERE IT NOT WHETHER THE
COMMISSION SHOULD HAVE APPROVED AS LAWFUL LOWER RATES FOR TRUCK-LOADS
THAN FOR SMALLER SHIPMENTS, BUT WHETHER THE COURT PROPERLY SET ASIDE
THE COMMISSION'S ORDER WHICH HAD DIRECTED CANCELLATION OF RESPONDENTS'
TARIFFS PROVIDING LOWER RATES FOR CERTAIN LESS THAN TRUCK-LOAD
SHIPMENTS SOLELY BECAUSE THEY HAD PREVIOUSLY BEEN, OR WERE INTENDED
SUBSEQUENTLY TO BE, CONSOLIDATED IN TRUCKLOADS WITH OTHER INDIVIDUAL
SHIPMENTS. 

UPON THE COMMISSION'S OWN MOTION, A HEARING WAS HELD AND THE
COMMISSION ORDERED THE CANCELLATION OF THESE TARIFFS.  FN3  RESPONDENTS
BROUGHT SUIT IN THE DISTRICT COURT TO SET ASIDE AND RESTRAIN
ENFORCEMENT OF THE COMMISSION'S ORDER.  A THREE JUDGE COURT HELD THE
ORDER VOID AND PERPETUALLY ENJOINED ITS ENFORCEMENT.  THE CASE IS HERE
ON DIRECT APPEAL BY THE UNITED STATES AND THE INTERSTATE COMMERCE
COMMISSION.  FN4 

RESPONDENTS' TARIFFS WOULD BE AVAILABLE TO FORWARDERS WHO ARRANGE
ASSEMBLING, TRANSPORTATION AND DISTRIBUTION SERVICES IN THE TRADE AREAS
SURROUNDING CONCENTRATION AND BREAK-BULK CENTERS IN ILLINOIS, WISCONSIN
AND INDIANA.  AND THE COMMISSION FOUND THAT "IN PRACTICAL EFFECT THESE
RATES CAN BE USED BY FEW, IF ANY, SHIPPERS, EXCEPT THE FORWARDERS." 
SINCE IN ITS OPINION THESE TARIFFS WERE "MATERIALLY LOWER THAN
RESPONDENTS' LOCAL RATES ON LIKE TRAFFIC BETWEEN THE SAME POINTS," FN5
THE COMMISSION FOUND THAT "THE FORWARDERS  ...  AND POSSIBLY A FEW
LARGE SHIPPERS  ...  WILL BE AFFORDED TRANSPORTATION AT RATES LOWER
THAN THE RATES  ...  CHARGED CERTAIN OTHER SHIPPERS UNDER SUBSTANTIALLY
SIMILAR CIRCUMSTANCES AND CONDITIONS, IN VIOLATION OF SECTION 216(D)." 
FN6 IN THE VIEW WE TAKE, IT BECOMES UNNECESSARY TO CONSIDER ADDITIONAL
GROUNDS UPON WHICH THE COMMISSION FOUND THE TARIFFS VIOLATED ANOTHER

SO FAR AS PERTINENT HERE, THE TARIFFS BEFORE US PROPOSE RATES FOR
TRANSPORTATION OF COMMODITIES IN LESS THAN TRUCK-LOAD LOTS.  ALL
COMMODITIES (WITH EXCEPTIONS NOT HERE MATERIAL) ARE AS A GROUP GIVEN
THE SAME SPECIAL RATE.  IN GENERAL, RESPONDENTS' OTHER TARIFFS PROVIDE
RATES WHICH VARY FOR DIFFERENT TYPES OF COMMODITIES.  ACCORDINGLY, IF
THE SUSPENDED RATES WERE IN EFFECT, TRANSPORTATION OF THE SAME
COMMODITY OVER THE SAME HAUL MIGHT COST A FORWARDER LESS THAN OTHER
SHIPPERS. 

THE FINDINGS OF THE COMMISSION AND THE SUPPORTING EVIDENCE  FN8
REVEAL THAT LOCAL LESS-THAN-TRUCK-LOAD RATES CHARGED SHIPPERS ARE IN
MANY IF NOT MOST INSTANCES GREATER THAN RATES ON LIKE COMMODITIES
BETWEEN THE SAME POINTS TO BE AFFORDED FORWARDERS UNDER THE PROPOSED
TARIFFS WHICH THE COMMISSION ORDERED CANCELLED.  HOWEVER, UPON
REVIEWING THE IDENTICAL EVIDENCE WHICH THE COMMISSION HAD CONSIDERED,
THE COURT BELOW DREW INFERENCES OPPOSITE TO THOSE OF THE COMMISSION AND
DISAGREED WITH ITS CONCLUSION THAT IN OPERATION THE DISPUTED TARIFFS
WOULD VIOLATE SEC. 216(D) WHICH FORBIDS UNDUE PREFERENCES AND
ADVANTAGES THAT LEAD TO UNJUST DISCRIMINATION.  THE EXERCISE OF
JUDGMENT BY THE COMMISSION AND BY THE COURT IN APPRAISING THE SAME
EVIDENCE HAS LED TO THESE OPPOSING CONCLUSIONS. 

THE TARIFFS APPLY ON "'ALL FREIGHT' (EXCEPT AS OTHERWISE PROVIDED
...  ), WHICH HAS BEEN TRANSPORTED TO  ...  (AN) ORIGIN STATION  ...  ,
AS A PART OF A TRUCK-LOAD CONSIGNMENT OR CARLOAD CONSIGNMENT MOVING
UNDER TARIFFS OR SCHEDULES LAWFULLY ON FILE WITH THE INTERSTATE
COMMERCE COMMISSION AND IMMEDIATELY RESHIPPED IN THE ORIGINAL PACKAGES
AS AN L.T.L. (LESS THAN TRUCK-LOAD) SHIPMENT: 

"(B) 'ALL FREIGHT',  ...  WHICH IS TO BE TRANSPORTED TO  ...  (A
NAMED) DESTINATION STATION ...  AS AN L.T.L. SHIPMENT, AND IMMEDIATELY
RESHIPPED IN THE ORIGINAL PACKAGE AS PART OF A TRUCK-LOAD CONSIGNMENT
OR CARLOAD ASSIGNMENT MOVING UNDER TARIFFS OR SCHEDULES LAWFULLY ON
FILE WITH THE INTERSTATE COMMERCE COMMISSION." 

IT IS EVIDENT THAT THESE SPECIAL TARIFFS ARE AVAILABLE ONLY TO
SHIPPERS WHO INTEND AND ARE ABLE (A) TO ARRANGE IMMEDIATE FURTHER
TRANSPORTATION IN CARLOADS OR TRUCK-LOADS FOR COMMODITIES THAT HAVE
BEEN CARRIED IN LESS THAN TRUCK-LOAD LOTS, OR (B) TO MOVE COMMODITIES
IN LESS THAN TRUCK-LOAD LOTS IMMEDIATELY AFTER THEY HAVE BEEN CARRIED
AS PART OF A CARLOAD OR TRUCK-LOAD.  WHILE, AS HAS BEEN NOTED, SOME FEW
LARGE SHIPPERS MAY POSSIBLY AVAIL OF THE TARIFFS, THERE IS NO QUESTION
ABOUT THE FINDING OF THE COURT BELOW THAT THE "PRINCIPAL TRAFFIC WHICH
WILL BE CARRIED UNDER THE SUSPENDED RATES IS WHAT IS CALLED BY THE
COMMISSION 'FREIGHT FORWARDER TRAFFIC.'" 

ALMOST SINCE ITS INCEPTION THE COMMISSION HAS BEEN CALLED UPON TO
EXERCISE ITS JUDGMENT RELATIVE TO THE INTERSTATE COMMERCE ACT AS
APPLIED TO FORWARDERS.  FN9  INITIAL HOSTILITY OF THE RAILROADS CAUSED
THEM TO DENY FORWARDERS THE ADVANTAGE OF THEIR PUBLISHED RATES. 
HOWEVER, WHEN CALLED UPON TO DECIDE, THE COMMISSION HELD THAT THE
RAILROADS' ACTION DISCRIMINATED AGAINST FORWARDERS AND DECLARED
FORWARDERS TO BE ENTITLED AS SHIPPERS TO PUBLISHED CARLOAD RATES.  THIS
COURT SUSTAINED THE ACTION OF THE COMMISSION.  FN10 

ABOUT 1920, PRIOR TO THE MOTOR CARRIERS ACT, FORWARDERS BEGAN TO
UTILIZE MOTOR CARRIERS.  FORWARDERS AND TRUCKERS OPERATED UNDER
INDIVIDUAL CONTRACTS PROVIDING DIVISIONS OF THE COMPLETE LINE HAUL
CHARGE.  AFTER THE TARIFF PROVISIONS OF THE MOTOR CARRIERS ACT WENT
INTO EFFECT, FORWARDERS FILED TARIFF SCHEDULES WITH THE INTERSTATE
COMMERCE COMMISSION ON THE ASSUMPTION THAT THEY WERE SUBJECT TO THE ACT
AS COMMON CARRIERS.  TARIFFS SO FILED WERE, HOWEVER, ORDERED CANCELLED
BY THE COMMISSION UPON THE GROUND THAT FORWARDERS WERE NOT MOTOR
CARRIERS SUBJECT TO THE ACT.  A THREE JUDGE DISTRICT COURT UPHELD THE
COMMISSION  FN11  AND THIS COURT AFFIRMED.  FN12 

HERE, THE COMPLAINT ITSELF HAS ALLEGED THAT THE SO-CALLED
"PROPORTIONAL" TARIFFS UNDER CONSIDERATION "NAME RATES WHICH ARE
IDENTICAL WITH" THE DIVISIONS OF THROUGH L.C.L. RATES WHICH RESPONDENTS
WOULD HAVE RECEIVED HAD THE FORWARDERS' TARIFFS BEEN UPHELD.  AND, AS
STATED BY THE COMMISSION, "STRIPPED OF PROTECTIVE COLORING, THESE RATES
ARE PUBLISHED AS PROPORTIONAL RATES PRIMARILY AS A MATTER OF EXPEDIENCY
TO SERVE THE PURPOSE OF CERTAIN FREIGHT FORWARDERS AND TO PERPETUATE IN
ANOTHER FORM SO-CALLED DIVISIONS OF PURPORTED JOINT RATES OF THE
FREIGHT FORWARDERS." 

RESPONDENTS CONTEND THAT THE COMMISSION IMPROPERLY CONCLUDED THAT THE
CANCELED TARIFFS CREATE UNDUE PREFERENCES OR ADVANTAGES RESULTING IN
UNJUST DISCRIMINATIONS IN VIOLATION OF 216(D) BECAUSE THERE WAS NO
EVIDENCE THAT THE SUSPENDED RATES WOULD SUBJECT ANY PARTICULAR PERSON
OR TYPE OF TRAFFIC TO DISADVANTAGE OR INJURY; WHILE THE SUSPENDED
RATES, APPLICABLE ON ALL CLASSES OF TRAFFIC, MIGHT BE LOWER AS TO SOME
COMMODITIES, THE AGGREGATE COMPENSATION FROM THEM WOULD NOT BE LESS
THAN THAT FROM LIKE LOCAL TRAFFIC IF ALL SUCH LOCAL TRAFFIC IS
CONSIDERED; SERVICES RENDERED BY RESPONDENTS TO THE FORWARDERS ARE
UNLIKE AND LESS BURDENSOME THAN LOCAL SERVICES RENDERED INDIVIDUAL
SHIPPERS; SERVICES RENDERED THE FORWARDERS ARE ON LONGER HAULS THAN ON
OTHER LOCAL LESS THAN TRUCK-LOAD COMMODITY TRAFFIC; TERMINAL SERVICES
RENDERED FORWARDERS BY RESPONDENTS ARE LESS EXPENSIVE THAN IN THE CASE
OF OTHER SHIPPERS; FORWARDERS BEAR THE EXPENSE OF SOLICITING BUSINESS
THEREBY RELIEVING RESPONDENTS OF THAT BURDEN; THE ONLY EVIDENCE BEFORE
THE COMMISSION WAS INTRODUCED BY RESPONDENTS; AND NO SHIPPERS
COMPLAINED OF INJURY.  FN13 

WEIGHTY AS THESE ARGUMENTS WERE, THEY DID NOT PERSUADE THE COMMISSION
THAT FORWARDERS COULD WITHOUT DISCRIMINATION BE GIVEN LOWER L.T.L.
RATES THAN OTHER SHIPPERS.  THE COMMISSION WAS IMPRESSED BY THE FACTS
THAT THE PROPOSED RATES WERE NOT IN REALITY AVAILABLE TO ALL OF THE
SHIPPING PUBLIC AND IN PRACTICAL EFFECT WOULD OPERATE FOR THE SPECIAL
BENEFIT OF THE FORWARDERS AND WOULD NOT BENEFIT THE OWNER OF GOODS
SHIPPED; THAT SEC. 216(D) OF THE ACT REPRESENTED A MANIFESTATION OF THE
CONGRESSIONAL PURPOSE IN PART I, SEC. 2, AND PART II, SEC. 202(A) OF
THE INTERSTATE COMMERCE ACT, TO PREVENT FAVORITISM BY INSURING EQUALITY
OF TREATMENT ON RATES FOR SUBSTANTIALLY SIMILAR SERVICES; AND THAT THE
PROPOSED TARIFF WOULD AFFORD "FORWARDERS  ...  , AND POSSIBLY A VERY
FEW LARGE SHIPPERS  ...  , TRANSPORTATION AT RATES LOWER THAN THE RATES
WHICH ...  (WOULD) BE CHARGED CERTAIN OTHER SHIPPERS UNDER
SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS, IN VIOLATION OF
CONCLUDED THAT THE MERE FACT THAT FORWARDERS MIGHT ORDINARILY FURNISH A
VOLUME OF TRAFFIC GREATER THAN BUT IDENTICAL IN KIND WITH THAT
FURNISHED BY INDIVIDUAL SHIPPERS DID NOT JUSTIFY LOWER RATES FOR
FORWARDERS. 

"IT IS NOT DISPUTABLE THAT FROM THE BEGINNING THE VERY PURPOSE FOR
WHICH THE COMMISSION WAS CREATED WAS TO BRING INTO EXISTENCE A BODY
WHICH FROM ITS PECULIAR CHARACTER WOULD BE MOST FITTED TO PRIMARILY
DECIDE WHETHER FROM FACTS, DISPUTED OR UNDISPUTED, IN A GIVEN CASE
PREFERENCE OR DISCRIMINATION EXISTED."  FN14  AND WHERE A COURT
SUBSTITUTED "ITS JUDGMENT AS TO THE EXISTENCE OF PREFERENCE FOR THAT OF
THE COMMISSION ON THE GROUND THAT WHERE THERE WAS NO DISPUTE AS TO THE
FACTS IT HAD A RIGHT TO DO SO, (THE COURT) OBVIOUSLY EXERTED AN
AUTHORITY NOT CONFERRED UPON IT BY THE STATUTE."  FN15  SO HERE, IT HAS
BEEN POINTED OUT THAT THERE WAS NO DISPUTE IN THE EVIDENCE BEFORE THE
COMMISSION, ALL OF WHICH WAS INTRODUCED BY RESPONDENTS.  BUT THE
DIFFERING INFERENCES AS TO DISCRIMINATION FINDING POSSIBLE SUPPORT IN
THAT EVIDENCE ARE MADE TO STAND OUT BY THE PERSUASIVE REASONING
ADVANCED IN BOTH THE MAJORITY AND MINORITY OPINIONS OF THE COMMISSION. 
THE INTERSTATE COMMERCE ACT DOES NOT ATTEMPT TO DEFINE AN UNLAWFUL
DISCRIMINATION WITH MATHEMATICAL PRECISION.  INSTEAD, DIFFERENT
TREATMENT FOR SIMILAR TRANSPORTATION SERVICES IS MADE AN UNLAWFUL
DISCRIMINATION WHEN "UNDUE," "UNJUST," "UNFAIR," AND "UNREASONABLE." 
AND THE COURTS HAVE ALWAYS RECOGNIZED THAT CONGRESS INTENDED TO COMMIT
TO THE COMMISSION THE DETERMINATION, BY APPLICATION OF AN INFORMED
JUDGMENT TO EXISTING FACTS, OF THE EXISTENCE OF FORBIDDEN PREFERENCES,
ADVANTAGES AND DISCRIMINATION.  FN16    A SPECIAL ALLOWANCE TO A
FORWARDER AS AN INDUCEMENT TO SHIP GOODS BY A PARTICULAR CARRIER WOULD
BE AN ILLEGAL REBATE.  FN17  SIMILARLY, AND AS PREVIOUSLY POINTED OUT,
FORWARDERS ARE SHIPPERS PROTECTED BY THE INTERSTATE COMMERCE ACT FROM
DISCRIMINATION BY CARRIERS.  FN18  AS SHIPPERS, FORWARDERS DO BUSINESS
SUBJECT TO THE PARAMOUNT PRINCIPLE THAT CONGRESS INTENDED OUR NATIONAL
TRANSPORTATION SYSTEM TO OPERATE WITHOUT FAVORITISM.  PURSUANT TO ITS
DUTY TO APPLY THAT PRINCIPLE UPON A NATIONAL SCALE, THE COMMISSION CAN
PREVENT UNJUST RATE DISCRIMINATION BY CARRIERS AGAINST OTHER SHIPPERS
AND IN FAVOR OF FORWARDERS.  THE PARTICULAR PROBLEM HERE INVOLVED IS
BUT A SEGMENT OF THE LARGER COMPLICATED NATIONAL PROBLEM OF RATES WITH
WHICH THE COMMISSION MUST DEAL.  AS EXEMPLIFIED BY THIS RECORD, THE
COMMISSION IS "INFORMED BY EXPERIENCE"  FN19  OF YEARS IN ITS
CONSIDERATION OF THE RELATIONSHIP OF FORWARDERS TO OUR NATIONAL
TRANSPORTATION SYSTEM. 

THE FACT THAT THE COMMISSION ACTED ON ITS MOTION WITHOUT COMPLAINTS
BY INDIVIDUAL SHIPPERS DID NOT DETRACT FROM THE COMMISSION'S POWER TO
PROTECT AND MAINTAIN A TRANSPORTATION SYSTEM FREE FROM PARTIALITY TO
PARTICULAR SHIPPERS.  THE COMMISSION ACTED IN ITS CAPACITY AS A PUBLIC
AGENCY AND CARRIED OUT DUTIES IMPOSED UPON IT BY CONGRESS IN THE
INTEREST OF SHIPPERS GENERALLY, THE NATIONAL TRANSPORTATION SYSTEM AND
THE PUBLIC INTEREST.  FN20  ITS ORDER WAS THE EMBODIMENT OF THE
COMMISSION'S JUDGMENT THAT THE PROPOSED TARIFF WAS A DISCRIMINATION
PROHIBITED BY THE ACT.  "THE JUDGMENT SO EXERCISED, BEING SUPPORTED BY
AMPLE EVIDENCE, IS CONCLUSIVE."  FN21 

THE JUDGMENT OF THE COURT BELOW IS REVERSED AND THE BILL IS ORDERED
DISMISSED.  REVERSED. 

FN1  49 STAT. 543. 

FN2  SEE INTERSTATE COMMERCE COMM'N V. DELAWARE, L. & W. R. CO., 220
U.S. 235, 243. 

FN3  DIVISION 5 FIRST REPORTED, 10 M.C.C. 556.  ON RECONSIDERATION,
THE REPORT WAS BY THE COMMISSION, 17 M.C.C. 573. 

FN4  28 U.S. CODE, 45, 45(A), 47(A), 345. 

FN5  TWO COMMISSIONERS IN DISSENT THOUGHT THIS WAS "TRUE ONLY IN
PART.  THEY ARE LOWER THAN SOME, BUT BY NO MEANS ALL, OF THE
CORRESPONDING LOCAL RATES." 

FN6  SEC. 216(D):  "IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY
MOTOR VEHICLE ENGAGED IN INTERSTATE OR FOREIGN COMMERCE TO MAKE, GIVE,
OR CAUSE ANY UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY
PARTICULAR PERSON, PORT, GATEWAY, LOCALITY, OR DESCRIPTION OF TRAFFIC
IN ANY RESPECT WHATSOEVER, OR TO SUBJECT ANY PARTICULAR PERSON, PORT,
GATEWAY, LOCALITY, OR DESCRIPTION OF TRAFFIC TO ANY UNJUST
DISCRIMINATION OR ANY UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE
IN ANY RESPECT WHATSOEVER:  PROVIDED, HOWEVER, THAT THIS PARAGRAPH
SHALL NOT BE CONSTRUED TO APPLY TO DISCRIMINATIONS, PREJUDICE, OR
DISADVANTAGE TO THE TRAFFIC OF ANY OTHER CARRIER OF WHATEVER
DESCRIPTION." 

FN7  SEE SEC. 217(A), (B). 

FN8  THE DISTRICT COURT FOUND THAT SOME OF THE LOCAL "RATES ARE
HIGHER AND SOME LOWER THAN THE SUSPENDED RATE," BUT THE AVERAGE REVENUE
DERIVED BY THE RESPONDENTS FROM LOCAL RATES "PER HUNDRED POUNDS  ...
UPON THE WHOLE, IS LESS THAN" THAT PRODUCED BY THE SUSPENDED RATES. 

FN9  SEE, E.G., EXPORT SHIPPING CO. V. WABASH RAILROAD CO., 14 I.C.C.
437; FREIGHT FORWARDING INVESTIGATION, 229 I.C.C. 201; ACME FAST
FREIGHT, INC., COMMON CARRIER APPLICATION, 8 M.C.C. 211. 

FN10  INTERSTATE COMMERCE COMM'N V. DELAWARE, L. & W.R. CO., 220 U.S.
235. 

FN11  8 M.C.C. 211, ACME FAST FREIGHT, INC. V. UNITED STATES, 30
F.SUPP.  968. 

FN12  ACME FAST FREIGHT, INC. V. UNITED STATES, 309 U.S. 638. 

FN13  THESE ARGUMENTS FOR SUSTAINING THE TARIFFS WERE ALL FORCEFULLY
PRESENTED IN THE DISSENTING OPINION OF CHAIRMAN EASTMAN, CONCURRED IN
BY COMMISSIONER MAHAFFIE. 

FN14  UNITED STATES V. LOUISVILLE & NASHVILLE R. CO., 235 U.S. 314,
320. 

FN15  ID. 

FN16  SWAYNE & HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 304;
INTERSTATE COMMERCE COMM'N V. DELAWARE, L. & W.R. CO., SUPRA, AT 255;
MANUFACTURERS RY. CO. V. UNITED STATES, 246 U.S. 457, 481.  TEXAS &
PACIFIC RY. CO. V. INTERSTATE COMMERCE COMM'N, 162 U.S. 197, REPRESENTS
AN APPARENT EXCEPTION, AT AN EARLY DATE BEFORE THE FUNCTION OF THE
COMMISSION HAD BECOME FULLY OUTLINED AGAINST THE BACKGROUND OF TIME AND
THE EMPIRIC PATTERN OF LITIGATION.  (COMMISSION'S BILL TO ENFORCE ITS
HOLDING THAT THE DIFFERENCE BETWEEN DOMESTIC AND IMPORTED MERCHANDISE
COULD NOT JUSTIFY DIFFERENT RATES BETWEEN THE PORT OF RECEPTION AND
POINT OF DELIVERY, ORDERED DISMISSED). 

FN17  LEHIGH VALLEY R. CO. V. UNITED STATES, 243 U.S. 444. 

FN18  INTERSTATE COMMERCE COMM'N V. DELAWARE, L. & W.R. CO., SUPRA,
AT 255. 

FN19  CF. STANDARD OIL CO. V. UNITED STATES, 283 U.S. 235, 239;
ILLINOIS CENTRAL R. CO. V. INTERSTATE COMMERCE COMM'N, 206 U.S. 441,
454. 

FN20  CF. INLAND STEEL CO. V. UNITED STATES, 306 U.S. 153, 157. 

FN21  UNITED STATES V. ILLINOIS CENTRAL R. CO., 263 U.S. 515, 525,
526. 
..END :













EX PARTE BRANSFORD, 310 U.S. 354 


NO. - , ORIGINAL.  ARGUED APRIL 23, 1940.  - DECIDED MAY 20, 1940.  -
MOTION DENIED. 


1.  MANDAMUS IS PROPER TO REVIEW ERROR OF A DISTRICT COURT IN REFUSING
TO CALL IN ADDITIONAL JUDGES, UNDER JUD.  CODE SEC. 266, IN A SUIT
PRAYING AN INTERLOCUTORY INJUNCTION AGAINST STATE OFFICERS.  P. 355. 

2.  THE APPLICATION FOR MANDAMUS MAY BE MADE BY ONE OF SEVERAL
DEFENDANTS.  P. 356. 

3.  A SUIT BY A NATIONAL BANK TO ENJOIN THE COLLECTION OF A STATE TAX
IS NOT A SUIT TO RESTRAIN THE ENFORCEMENT OF A STATUTE OF THE STATE
"UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH STATUTE," WITHIN
THE MEANING OF JUD.  CODE SEC. 266, WHERE THE BILL MAKES NO ATTACK UPON
THE STATE LEGISLATION INVOLVED BUT ALLEGES THAT STATE OFFICIALS HAVE
MISCONSTRUED IT AND HAVE MADE AN ASSESSMENT WHICH IS UNCONSTITUTIONAL
BECAUSE EXCESSIVE AND DISCRIMINATORY AND WHICH IS ALSO INVALID BECAUSE
IT DISCRIMINATES AGAINST NATIONAL BANK SHARES IN VIOLATION OF R.S. SEC.
5219, AND INCLUDES PREFERRED SHARES OF THE BANK OWNED BY THE
RECONSTRUCTION FINANCE CORPORATION, WHICH ARE EXEMPT UNDER THE ACT OF
CONGRESS OF MARCH 20, 1936.  P. 357. 

A PETITION FOR AN INJUNCTION ON THE GROUND OF THE UNCONSTITUTIONALITY
OF A STATUTE AS APPLIED, WHICH REQUIRES A THREE-JUDGE COURT, IS TO BE
DISTINGUISHED FROM ONE BASED ON THE ALLEGED UNCONSTITUTIONALITY OF THE
RESULT OBTAINED BY THE USE OF A STATUTE WHICH IS NOT ATTACKED AS
UNCONSTITUTIONAL.  THE LATTER DOES NOT REQUIRE A THREE-JUDGE COURT, ITS
ATTACK BEING AIMED AT ALLEGEDLY ERRONEOUS ADMINISTRATIVE ACTION. 

EX PARTE BRANSFORD, COUNTY TREASURER OF PIMA COUNTY, ARIZONA, ETC. 

ON A MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF MANDAMUS AND
ON THE RESPONDENT'S RETURN TO A RULE TO SHOW CAUSE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE COUNTY TREASURER AND EX-OFFICIO TAX COLLECTOR OF PIMA COUNTY,
ARIZONA, MOVES TO FILE A TENDERED PETITION FOR A WRIT OF MANDAMUS TO BE
DIRECTED TO DISTRICT JUDGE LING OF THE FEDERAL DISTRICT COURT FOR THAT
STATE.  A RULE TO SHOW CAUSE HAS ISSUED AND THE RETURN HAS BEEN MADE. 
PETITIONER, A COUNTY TREASURER, AND OTHER OFFICIALS ARE DEFENDANTS
TOGETHER WITH THEIR COUNTIES, IN A SUIT BROUGHT IN THE DISTRICT COURT
BY THE VALLEY NATIONAL BANK IN WHICH THE BANK IS SEEKING AN
INTERLOCUTORY AND PERMANENT INJUNCTION AGAINST THE COLLECTION OF
CERTAIN TAXES BY THE COUNTIES.  THE DISTRICT JUDGE HAS RULED THAT HE
WILL HEAR THE CASE WHILE SITTING ALONE AND PETITIONER CONTENDS THAT
UNDER SEC. 266 OF THE JUDICIAL CODE HE IS ENTITLED TO HAVE THE CASE
HEARD BEFORE THREE JUDGES.  MANDAMUS IS THE PROPER REMEDY.  FN1 

ARIZONA TAXES SHARES OF BANK STOCK IN THE NAME OF THE SHAREHOLDERS
AND REQUIRES THE BANK TO PAY FOR THEM.  FN2  ASSESSMENTS ARE MADE IN
THE FIRST INSTANCE BY COUNTY ASSESSORS, WITH AN APPEAL ALLOWED FIRST TO
A COUNTY AND THEN TO A STATE BOARD OF EQUALIZATION.  THE STATE BOARD
RETURNS THE FINAL ASSESSMENT WITH A LEVY OF THE RATE FOR STATE PURPOSES
TO THE COUNTY SUPERVISORS.  THIS BODY ADDS THE SEVERAL LOCAL RATES AND
PLACES THE ASSESSMENT UPON THE TAX ROLL.  COLLECTION IS PERFORMED BY
THE COUNTY TREASURER,  FN3  AND THE TAXES COLLECTED ARE APPORTIONED
BETWEEN STATE AND COUNTY.  FN4  WHERE A BANK IS DOING BUSINESS IN
SEVERAL COUNTIES THE VALUE OF ITS STOCK IS APPORTIONED AMONG THE
COUNTIES IN ACCORDANCE WITH THE ASSETS LOCATED IN EACH.  FN5  BECAUSE
OTHER PROPERTY IN THE STATE HAS BEEN UNDER-ASSESSED THE STATE BOARD IN
1935 ORDERED THAT BANK SHARES BE VALUED AT 75% OF CAPITAL STOCK,
SURPLUS AND UNDIVIDED PROFIT.  ASSETS, BORROWINGS, DEPOSITS AND OTHER
LIABILITIES ARE DISREGARDED. 

THE PETITIONER IS THE ONLY DEFENDANT TO APPLY FOR MANDAMUS.  AS THE
ISSUANCE OF SUCH AN ORDER DEPENDS ON THE JURISDICTION OF THE SINGLE
DISTRICT JUDGE, SITTING ALONE, OVER THE SUIT PENDING IN THE DISTRICT
COURT, THIS IS SUFFICIENT.  AS THE ISSUES WITH THIS PETITIONER IN THAT
SUIT INCLUDE THOSE WITH ALL OTHER DEFENDANTS, WE DO NOT NEED TO STATE
THE ISSUES ARISING WITH THE OFFICIALS OF COUNTIES OTHER THAN PIMA.  THE
BANK STATES ITS CONTROVERSY WITH THE PETITIONER AROSE IN THE FOLLOWING
MANNER.  THE BANK HAD BRANCHES IN SEVERAL COUNTIES.  IT HAD COMMON
CAPITAL STOCK, A SURPLUS AND UNDIVIDED PROFITS.  ALSO THE BANK HAD AN
ISSUE OF PREFERRED WHICH IT HAD SOLD TO THE RECONSTRUCTION FINANCE
CORPORATION PRIOR TO THE TIME OF THE 1935 ASSESSMENT AT THE PAR VALUE
OF $1,240,000 AND WHICH THE RECONSTRUCTION FINANCE CORPORATION STILL
OWNS.  TAKING THE POSITION THAT THE PREFERRED OWNED BY THE
RECONSTRUCTION FINANCE CORPORATION COULD NOT BE TAXED, THE BANK
REPORTED A TOTAL VALUE OF $524,629.50, 75% OF $699,026(THE AMOUNT OF
ITS COMMON, SURPLUS, UNDIVIDED PROFITS AND RESERVES), AS THE TOTAL
TAXABLE VALUE OF ITS SHARES, AND APPORTIONED THIS AMONG THE COUNTIES
ACCORDING TO THE ASSETS THERE LOCATED.  ON THIS BASIS $139,088.80,
26.53% OF ITS TOTAL TAXABLE VALUE, WAS APPORTIONED TO PIMA COUNTY.  THE
ASSESSOR OF PIMA COUNTY MADE AN ASSESSMENT OF $327,590, THE "ACTUAL
CASH VALUE OF THE REAL AND PERSONAL PROPERTY" SITUATED IN PIMA COUNTY. 
BY AGREEMENT OF THE PARTIES, THE BANK PAID THE AMOUNT WHICH UNDER ITS
COMPUTATION WAS DUE PIMA COUNTY, THE RIGHT TO LITIGATE THE VALIDITY OF
THE COUNTY'S ASSESSMENT BEING RESERVED.  SUBSEQUENTLY, THE PETITIONER
HAVING THREATENED TO INSTITUTE PROCEEDINGS TO ENFORCE THE COUNTY'S
ASSESSMENT, THE BANK BROUGHT ITS SUIT IN THE DISTRICT COURT TO ENJOIN
COLLECTION. 

THE BANK BY ITS BILL IN THE DISTRICT COURT SEEKS AN INJUNCTION UPON
SEVERAL GROUNDS.  WE ARE OF THE OPINION THAT NONE OF THESE COMPELS THE
TRIAL JUDGE TO CALL A THREE-JUDGE COURT UNDER SEC. 266. 

THE ASSESSMENT IN PIMA COUNTY WAS MADE IN THE AMOUNT OF THE VALUE OF
THE BANK'S REAL ESTATE AND PERSONAL PROPERTY.  IT IS THEREFORE, SAYS
THE BANK, IMPOSSIBLE TO TELL WHETHER THE ASSESSMENT IS THE VALUATION OF
THE PROPERTY, THE PROPORTION OF THE VALUE OF THE COMMON STOCK ALONE OR
THAT OF THE AGGREGATE OF THE COMMON AND PREFERRED.  AN ASSESSMENT UPON
THE PROPERTY, IT IS ALLEGED, IS "VOID AS UNAUTHORIZED BY THE STATUTES
OF ARIZONA."  IF THE VALUATION INCLUDES THE PREFERRED STOCK, THE
COMPLAINT ALLEGES IT IS INVALID BECAUSE OF THE ACT OF MARCH 20, 1936,
EXEMPTING THE PREFERRED STOCK WHILE OWNED BY THE RECONSTRUCTION FINANCE
CORPORATION.  FN6  IF THE VALUATION IS UPON THE COMMON STOCK ALONE, IT
IS SAID TO BE INVALID (1) BECAUSE THE VALUATION IS FAR BEYOND THE
ACTUAL VALUE AND THEREFORE CONFISCATORY AND (2) BECAUSE THE VALUATION
IS DISCRIMINATORY SINCE THE COMMON STOCK IN OTHER BANKS IS ASSESSED AT
75% OF THE VALUE OF COMMON STOCK, SURPLUS AND UNDIVIDED PROFITS AND
OTHER CLASSES OF PROPERTY AT SIXTY PER CENT OF ITS ACTUAL VALUE, WHILE
THIS VALUATION IS ON THE BASIS OF APPROXIMATELY TWICE THE COMMON STOCK,
SURPLUS AND UNDIVIDED PROFITS OF THE BANK AND TWICE ITS ACTUAL VALUE. 
IT IS FURTHER ALLEGED THAT THIS EXCESSIVE AND DISCRIMINATORY VALUATION
VIOLATES R.S. SEC. 5219 WHICH LIMITS THE RATE OF TAXATION OF NATIONAL
BANK SHARES TO THAT ASSESSED "UPON OTHER MONEYED CAPITAL IN THE HANDS
OF INDIVIDUAL CITIZENS  ...  COMING INTO COMPETITION WITH THE BUSINESS
OF NATIONAL BANKS."  IT IS PRAYED THAT ACTION UNDER THESE ASSESSMENTS
FOR THE REASONS STATED BE ENJOINED AS VIOLATIVE OF THE CONSTITUTION AND
LAWS OF THE UNITED STATES AND ARIZONA. 

COURT THAT THE INJUNCTION AGAINST THE OFFICER OF THE STATE TO RESTRAIN
THE ENFORCEMENT, OPERATION OR EXECUTION OF THE STATE STATUTE MUST BE
SOUGHT "UPON THE GROUND OF THE UNCONSTITUTIONALITY OF SUCH STATUTE." 

IN SO FAR AS IT IS ALLEGED THAT THE ASSESSMENTS ARE VOID BECAUSE
UNAUTHORIZED BY THE ARIZONA STATUTE, THE INJUNCTION SOUGHT IS OBVIOUSLY
NOT UPON THE GROUND OF THE UNCONSTITUTIONALITY OF THE STATE STATUTE AS
TESTED BY THE FEDERAL CONSTITUTION. 

THE ALLEGATIONS THAT THE ASSESSMENTS SHOULD BE ENJOINED BECAUSE
VIOLATIVE OF THE STATUTE EXEMPTING PREFERRED STOCK OWNED BY THE
RECONSTRUCTION FINANCE CORPORATION AND R.S. SEC. 5219 DEPEND UPON NO
CONSTITUTIONAL PROVISION WITHIN THE MEANING OF JUDICIAL CODE SEC. 266. 
IF SUCH ASSESSMENTS ARE INVALID, IT IS BECAUSE THEY LEVY TAXES UPON
PROPERTY WITHDRAWN FROM TAXATION BY FEDERAL LAW  FN7  OR IN A MANNER
FORBIDDEN BY THE NATIONAL BANKING ACT.  FN8  THE DECLARATION OF THE
SUPREMACY CLAUSE  FN9  GIVES SUPERIORITY TO VALID FEDERAL ACTS OVER
CONFLICTING STATE STATUTES BUT THIS SUPERIORITY FOR PRESENT PURPOSES
INVOLVES MERELY THE CONSTRUCTION OF AN ACT OF CONGRESS, NOT THE
CONSTITUTIONALITY OF THE STATE ENACTMENT.  THIS WAS DECIDED AS TO SEC.
266 IN EX PARTE BUDER,  FN10  AND BEFORE THAT A SIMILAR RESULT HAD BEEN
REACHED IN LEMKE V. FARMERS GRAIN COMPANY FN11  IN REGARD TO A
PROVISION OF THE JUDICIAL CODE GRANTING DIRECT APPEAL TO THIS COURT IN
CASES WHERE THE SOLE ISSUE  FN12  WAS THE UNCONSTITUTIONALITY OF A
STATE STATUTE.  FN13 

IT IS SAID, HOWEVER, THAT THE ALLEGATIONS OF CONFISCATION AND
DISCRIMINATION IN VALUATION OF THE COMMON SHARES IN COMPARISON WITH THE
STOCK OF OTHER BANKS AND OTHER PROPERTY SHOW THE INJUNCTION IS SOUGHT
UPON THE GROUND OF THE UNCONSTITUTIONALITY OF THE STATUTE.  THIS POINT
DEPENDS UPON EXCESSIVE VALUATION OF THE SHARES.  THE VALIDITY OF THE
STATUTE ITSELF IS NOT INVOLVED.  VARIATIONS BY ASSESSORS IN VALUATIONS
OF LIKE PROPERTY, TAXABLE UNDER THE SAME STATUTE, SUFFICIENTLY MARKED
TO BE DISCRIMINATORY UNDER THE CONSTITUTION OR VALUATIONS SO LARGE AS
TO BE CONFISCATORY CANNOT PROPERLY BE SAID TO BE THE BASIS FOR ATTACK
ON THE GROUND OF THE UNCONSTITUTIONALITY OF THE STATUTE.  SUCH
ASSESSMENTS, IF MADE AND IF INVALID, ARE SO BECAUSE OF A WRONG DONE BY
OFFICERS UNDER THE STATUTE RATHER THAN BECAUSE OF THE REQUIREMENT OF
THE STATUTE ITSELF.  FN14 

BUT IT IS SAID BY THE PETITIONER HERE THAT THE LAST SENTENCE OF SEC.
3071 REQUIRES THIS EXCESSIVE AND DISCRIMINATORY ASSESSMENT.  THAT
SENTENCE READS:  "WHEN A BANK MAINTAINS BRANCHES OR CONDUCTS BUSINESS
IN MORE THAN ONE COUNTY, CITY OR TOWN, THE ASSESSED VALUE OF THE
CAPITAL STOCK SHALL BE APPORTIONED AMONG THE SEVERAL COUNTIES, CITIES
AND TOWNS IN WHICH THE MAIN OFFICE OR SUCH BRANCHES ARE MAINTAINED OR
BUSINESS CONDUCTED, AND THE AMOUNT APPORTIONED TO EACH COUNTY, CITY OR
TOWN SHALL NOT BE LESS THAN THE ACTUAL CASH VALUE OF THE REAL AND
PERSONAL PROPERTY OF SUCH BANK SITUATED IN SUCH COUNTY, CITY OR TOWN." 
IF THIS IS INTERPRETED AS REQUIRING THAT THE APPORTIONMENT OF THE VALUE
OF THE CAPITAL STOCK TO EACH COUNTY MUST NOT BE LESS THAN THE TANGIBLE
PROPERTY IN THAT COUNTY, THE AGGREGATE APPORTIONMENT MAY BE MUCH LARGER
THAN THE ASSESSED VALUE OF THE STOCK.  A GREATER ASSESSMENT PER SHARE
WILL OCCUR IF THE TOTAL VALUATION IS ALLOCATED TO COMMON SHARES ONLY. 
IF THE VALUATION, REACHED UNDER THE FORMULA BY TREATING THE PREFERRED
AS CAPITAL STOCK, IS ALLOCATED AMONG THE COMMON SHARES, ONLY, IT WOULD
MEAN THAT THE PREFERRED WAS TREATED AS STOCK FOR PURPOSES OF THE
VALUATION AND DISREGARDED FOR THE ASSESSMENT OF INDIVIDUAL SHARES.  THE
ARGUMENT OF PETITIONER IS THAT IF THE RESULT, AS HE CONTENDS THE BANK
ALLEGES, VIOLATES THE FEDERAL CONSTITUTION BY DISCRIMINATION OF COMMON
SHARES AS COMPARED TO SHARES OF OTHER BANKS WITHOUT PREFERRED STOCK OR
OWNERS OF OTHER PROPERTY, THE STATUTE VIOLATES IT. THEREFORE, IN
EFFECT, THE ATTACK ON THE CONSTITUTIONALITY OF THE ASSESSMENT IS AN
ATTACK ON THE CONSTITUTIONALITY OF THE STATUTE. 

THE CONTENTION OF THE BANK, HOWEVER, IS THAT THE ASSESSOR
MISINTERPRETED THE STATUTE; THAT THE OBJECTIONABLE ASPECT OF THE
ASSESSMENT IS THE ATTRIBUTION TO THE COMMON OF THE WHOLE AMOUNT INSTEAD
OF AN APPORTIONMENT TO BOTH PREFERRED AND COMMON OR THE USE OF THE
PREFERRED AS CAPITAL STOCK IN THE STATE VALUATION FORMULA.  WE ARE NOT
NOW CALLED UPON TO REACH ANY CONCLUSION UPON THE MEANING OF THE ARIZONA
TAX STATUTES.  IF THE TRIAL COURT DETERMINES THAT THE ASSESSMENT
COMPLAINED OF IS MADE PROPERLY UNDER THE STATUTE AND THAT BY THE
STATUTE THE ASSESSMENT IS TO BE PRORATED AMONG THE COMMON SHARES, IT
WOULD DETERMINE ONLY A QUESTION OF STATUTORY CONSTRUCTION.  IT IS
NECESSARY TO DISTINGUISH BETWEEN A PETITION FOR INJUNCTION ON THE
GROUND OF THE UNCONSTITUTIONALITY OF A STATUTE AS APPLIED, WHICH
REQUIRES A THREE-JUDGE COURT,  FN15  AND A PETITION WHICH SEEKS AN
INJUNCTION ON THE GROUND OF THE UNCONSTITUTIONALITY OF THE RESULT
OBTAINED BY THE USE OF A STATUTE WHICH IS NOT ATTACKED AS
UNCONSTITUTIONAL.  THE LATTER PETITION DOES NOT REQUIRE A THREE-JUDGE
COURT.  FN16  IN SUCH A CASE THE ATTACK IS AIMED AT AN ALLEGEDLY
ERRONEOUS ADMINISTRATIVE ACTION.  FN17  UNTIL THE COMPLAINANT IN THE
DISTRICT COURT ATTACKS THE CONSTITUTIONALITY OF THE STATUTE, THE CASE
DOES NOT REQUIRE THE CONVENING OF A THREE-JUDGE COURT, ANY MORE THAN IF
THE COMPLAINT DID NOT SEEK AN INTERLOCUTORY INJUNCTION.  FN18  WHERE BY
AN OMISSION TO ATTACK THE CONSTITUTIONALITY OF A STATE STATUTE, ITS
VALIDITY IS ADMITTED FOR THE PURPOSES OF THE BILL, A DETERMINATION BY
THE TRIAL COURT THAT THE ASSESSMENT ACCORDS WITH THE STATUTE WOULD
RESULT IN THE REFUSAL OF THE INJUNCTION AND THE DISMISSAL OF THE BILL. 
JURISDICTION, PROPERLY ASSUMED, MAY BE LOST BY THE SPECIAL COURT, WHEN
IT APPEARS THAT A PREREQUISITE SUCH AS NEED FOR RELIEF AGAINST STATE
OFFICERS IS LACKING.  FN19  EVEN WHERE THE STATUTE IS ATTACKED AS
UNCONSTITUTIONAL, SEC. 266 IS INAPPLICABLE UNLESS THE ACTION COMPLAINED
OF IS DIRECTLY ATTRIBUTABLE TO THE STATUTE.  FN20  THERE IS NO
INDICATION THAT CONGRESS SOUGHT BY SEC. 266 TO HAVE EVERY ATTACK ON THE
CONSTITUTIONALITY OF A STATE STATUTE DETERMINED BY A THREE-JUDGE
COURT.  IT SOUGHT SUCH A BENCH ONLY TO AVOID PRECIPITATE DETERMINATIONS
ON CONSTITUTIONALITY ON MOTIONS FOR INTERLOCUTORY INJUNCTIONS. 

AS THE FOREGOING GROUND ADEQUATELY DISPOSES OF THE PETITION FOR
MANDAMUS, WE DO NOT DISCUSS THE OTHER REASONS FOR REFUSAL URGED BY THE
BANK. 

THE MOTION TO FILE THE PETITION FOR MANDAMUS IS DENIED. 

FN1  EX PARTE WILLIAMS, 277 U.S. 267, 269; STRATTON V. ST. LOUIS
SOUTHWESTERN RY. CO., 282 U.S. 10, 16. 

FN2  REVISED CODE OF ARIZONA, 1928, SECS. 3069-71. 

FN3  ID., SEC. 3110. 

FN4  ID., SEC. 3111. 

FN5  ID., SEC. 3071. 

FN6  49 STAT. 1185. 

FN7  PITTMAN V. HOME OWNERS' CORP., 308 U.S. 21. 

FN8  R.S. SEC. 5219; OWENSBORO NATIONAL BANK V. OWENSBORO, 173 U.S.
664, 668. 

FN9  ART. VI, CL. 2:  "THIS CONSTITUTION, AND THE LAWS OF THE UNITED
STATES WHICH SHALL BE MADE IN PURSUANCE THEREOF; ...  SHALL BE THE
SUPREME LAW OF THE LAND  ...  " 

FN10  271 U.S. 461, 465-66. 

FN11  258 U.S. 50, 52. 

FN12  SPRECKELS SUGAR REFINING CO. V. MCCLAIN, 192 U.S. 397, 407. 

FN13  SEE D.A. BEARD TRUCK LINE CO. V. SMITH, 12 F.SUPP.  964. 
FN14  CF. EX PARTE WILLIAMS, 277 U.S. 267, 271; JETT BROS. CO. V.
CARROLLTON, 252 U.S. 1, 5. 

FN15  STRATTON V. ST. LOUIS SOUTHWESTERN RY., 282 U.S. 10. 

FN16  EX PARTE HOBBS, 280 U.S. 168. 

FN17  EX PARTE WILLIAMS, SUPRA. 

FN18  STRATTON V. ST. LOUIS SOUTHWESTERN RY., 282 U.S. 10, 15. 

FN19  OKLAHOMA GAS CO. V. PACKING CO., 292 U.S. 386, 391. 

FN20  EX PARTE COLLINS, 277 U.S. 565, 567, 569. 
..END :



















NASHVILLE, C. & ST. L. RY. V. BROWNING, 310 U.S. 362 


NO. 789.  ARGUED APRIL 30, MAY 1, 1940.  - DECIDED MAY 20, 1940.  - 140
S.W.2D 781, AFFIRMED. 


1.  IN THE ABSENCE OF SPECIAL CIRCUMSTANCES RENDERING IT INAPPLICABLE
TO THE PARTICULAR CASE, THE MILEAGE BASIS AFFORDS AN APPROPRIATE
METHOD, CONSISTENT WITH THE COMMERCE CLAUSE, OF APPORTIONING THE VALUE
OF AN INTERSTATE RAILROAD SYSTEM AMONG THE SEVERAL STATES IN WHICH IT
FUNCTIONS, FOR THE PURPOSE OF TAXATION.  ARITHMETICAL PRECISION IN THE
APPORTIONMENT IS NOT ESSENTIAL TO ITS VALIDITY.  P. 365. 

THE JUDGMENT OF STATE TAXING AUTHORITIES AND COURTS UPHOLDING A USE
OF THE MILEAGE BASIS, DESPITE EVIDENCE OF DIFFERENT EARNING CAPACITIES
OF LINES OF THE RAILROAD IN AND OUT OF THE STATE, - ACCEPTED IN THIS
CASE. 

2.  UPON REVIEW OF A DECREE OF A STATE COURT SUSTAINING A TAX
ASSESSMENT OF A RAILROAD OVER THE OBJECTION THAT UNCONSTITUTIONAL
DISCRIMINATION RESULTED FROM SYSTEMATIC ASSESSMENT OF RAILROADS AND
OTHER PUBLIC UTILITIES AT FULL VALUE AND UNDERVALUATION OF ALL OTHER
KINDS OF PROPERTY, THIS COURT DECLINES TO EXAMINE THE MINUTES OF THE
STATE BOARD OF EQUALIZATION, NOT IN THE RECORD BUT PROFFERED HERE FOR
THE FIRST TIME IN THE LITIGATION, IN ORDER TO LEARN WHETHER THE STATE
COURT WAS CORRECT IN PRESUMING THAT DISPARITIES OF ASSESSMENT HAD BEEN
EQUALIZED, AS REQUIRED BY THE STATE LAW.  P. 366. 

3.  THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT PERMITS A
STATE TO CLASSIFY THE PROPERTY OF RAILROADS AND OTHER PUBLIC UTILITIES
SEPARATELY FROM OTHER PROPERTY AND TO TAX IT HIGHER.  P. 367. 

4.  WHERE A STATE FOR MANY YEARS SYSTEMATICALLY ASSESSED THE PROPERTY
OF RAILROADS AND OTHER UTILITIES AT FULL CASH VALUE AND ALL OTHER KINDS
OF PROPERTY AT LESS THAN CASH VALUE,  - HELD THAT THE PRACTICE WAS THE
"LAW" OF THE STATE, WITHIN THE MEANING OF THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT, ALTHOUGH UNIFORMITY OF TAXATION WAS
COMMANDED BY THE STATE CONSTITUTION, AND ALTHOUGH IT WERE TRUE THAT THE
TAX IN QUESTION WAS SUSTAINED BY THE STATE SUPREME COURT BY A RESORT TO
FICTION.  P. 369. 

5.  THE CONTENTION THAT AN ASSESSMENT, CONTINUED WITHOUT CHANGE FOR A
SERIES OF YEARS, HAD BECOME CONFISCATORY BECAUSE OF DECREASE IN VALUE
OF THE PROPERTY DUE TO ECONOMIC CAUSES, IS REJECTED BECAUSE 

(1)  THE COURT FINDS IN THE RECORD NO WARRANT FOR UPSETTING THE
ADMINISTRATIVE DETERMINATION, SUSTAINED BY THE STATE COURTS.  P. 370. 

(2)  THE MAINTENANCE OF AN ASSESSMENT IN THE FACE OF DECLINING VALUE
IS MERELY A WAY OF INCREASING THE TAX.  P. 370. 

NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY V. BROWNING ET AL.,
CONSTITUTING THE STATE BOARD OF EQUALIZATION OF TENNESSEE. 

CERTIORARI TO THE SUPREME COURT OF TENNESSEE. 

CERTIORARI, 309 U.S. 651, TO REVIEW A DECREE SUSTAINING THE DISMISSAL
OF A SUIT TO REDUCE, AS EXCESSIVE, A TAX ASSESSMENT OF RAILROAD
PROPERTY. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE TO REVIEW A JUDGMENT OF THE SUPREME COURT OF
TENNESSEE SUSTAINING AN ASSESSMENT OF PETITIONER'S PROPERTY, TANGIBLE
AND INTANGIBLE, UNDER THAT STATE'S AD VALOREM TAX LAW.  ALL TENNESSEE
PROPERTY IS SUBJECT TO SUCH A TAX; BUT THERE ARE TWO SCHEMES OF
PROCEDURE FOR MAKING ASSESSMENTS, ONE FOR PUBLIC SERVICE CORPORATIONS
AND ONE FOR OTHER TAXPAYERS.  AS TO ORDINARY PROPERTY THE TASK OF
VALUATION RESTS UPON OFFICIALS OF THE VARIOUS COUNTIES.  FOR PUBLIC
SERVICE CORPORATIONS THE ASSESSMENTS MUST BE MADE BY THE RAILROAD AND
PUBLIC UTILITIES COMMISSION, WHICH IS COMMANDED TO ASCERTAIN THE
"ACTUAL CASH VALUE" OF CORPORATE PROPERTY SITUATED IN TENNESSEE. 
TENNESSEE CODE, SEC. 1526.  SINCE PETITIONER OPERATES AN INTERSTATE
RAILROAD, THE VALUE OF ITS ENTIRE SYSTEM AND NOT MERELY OF THAT PORTION
WITHIN TENNESSEE HAD FIRST TO BE ASCERTAINED.  THIS THE COMMISSION
ESTIMATED AT $23,996,604.14.  FROM THIS FIGURE WAS DEDUCTED THE VALUE
OF PETITIONER'S "LOCALIZED" PROPERTY, THAT IS, ITS TERMINAL BUILDINGS,
SHOPS, AND NON-OPERATING REAL ESTATE.  THE REMAINING SUM SERVED AS THE
BASE FOR CALCULATING THE VALUE OF WHAT IN THE LANGUAGE OF TENNESSEE LAW
IS CALLED THE UTILITY'S "DISTRIBUTABLE" PROPERTY ATTRIBUTABLE TO
TENNESSEE, SEC. 1528, WHICH THE COMMISSION ASCERTAINED BY TAKING THE
RATIO WHICH PETITIONER'S MILEAGE IN TENNESSEE BEARS TO ITS TOTAL
MILEAGE.  THIS WAS FOUND TO BE $12,925,944; AND THAT IS THE AMOUNT OF
THE ASSESSMENT HERE IN DISPUTE.  FROM THIS ACTION BY THE COMMISSION
PETITIONER APPEALED, IN ACCORDANCE WITH THE LOCAL STATUTE, TO THE STATE
BOARD OF EQUALIZATION, RESPONDENT HERE.  AFTER HEARING AND BY FORMAL
OPINION, THE BOARD CONFIRMED THE COMMISSION'S VALUATION. 

IN ANTICIPATION OF A CERTIFICATION BY THE BOARD OF ITS FINAL
ASSESSMENT PRELIMINARY TO THE COLLECTION OF TAXES BASED UPON IT, THE
RAILWAY BROUGHT AN APPROPRIATE PROCEEDING IN THE STATE COURTS TO SET
ASIDE WHAT IT CLAIMED WAS THE VOID "EXCESS OF THE FAIR TAXABLE VALUE"
OF ITS PROPERTY.  THIS SUIT WAS DISMISSED BY THE TRIAL COURT AND ITS
JUDGMENT WAS AFFIRMED BY THE SUPREME COURT OF TENNESSEE WITH TWO
JUSTICES SEPARATELY DISSENTING.  140 S.W.2D 781.  BECAUSE OF
PETITIONER'S CLAIM THAT THE RESULT BELOW WAS INCONSISTENT WITH
DECISIONS OF THIS COURT, WE GRANTED CERTIORARI.  309 U.S. 651.  THE
ASSESSMENT WAS CONTESTED BELOW ON OBJECTIONS GROUNDED IN BOTH STATE AND
FEDERAL CONSTITUTIONS.  HERE, OF COURSE, ONLY FEDERAL QUESTIONS ARE
OPEN.  PETITIONER CLAIMS THAT THE CHALLENGED ASSESSMENT VIOLATES THE
FOURTEENTH AMENDMENT IN ITS GUARANTEES OF DUE PROCESS AND THE EQUAL
PROTECTION OF THE LAWS, AND IS OFFENSIVE TO THE COMMERCE CLAUSE. 

WE SHALL FIRST CONSIDER THE CLAIM BASED ON THE HISTORIC IMPLICATIONS
OF THE COMMERCE CLAUSE AS A LIMITATION UPON THE STATE'S TAXING POWER. 
PETITIONER ARGUED THAT TENNESSEE HAS TAXED VALUES WHICH ARE IN TRUTH
OUTSIDE ITS BORDERS, THEREBY BURDENING THAT WHICH THE COMMERCE CLAUSE
HAS LEFT FREE.  THE GUIDING PRINCIPLES FOR ADJUSTMENT OF THE STATE'S
RIGHT TO SECURE ITS REVENUES AND THE NATION'S DUTY TO PROTECT
INTERSTATE TRANSPORTATION ARE BY THIS TIME WELL SETTLED.  THE PROBLEM
TO BE SOLVED IS WHAT PORTION OF AN INTERSTATE ORGANISM MAY
APPROPRIATELY BE ATTRIBUTED TO EACH OF THE VARIOUS STATES IN WHICH IT
FUNCTIONS.  BASIC TO THE ACCOMMODATION OF THESE CONFLICTING STATE AND
NATIONAL INTERESTS IS REALIZATION THAT BY ITS VERY NATURE THE PROBLEM
IS INCAPABLE OF PRECISE AND ARITHMETICAL SOLUTION.  IN TAPPING THESE
COMMON SOURCES OF REVENUE A STATE CANNOT, WE HAVE HELD, USE A FISCAL
FORMULA, WHATEVER MAY BE ITS APPEARANCE OF CERTITUDE, TO PROJECT THE
TAXING POWER OF THE STATE PLAINLY BEYOND ITS BORDERS.  WALLACE V.
HINES, 253 U.S. 66.  IN THE LIGHT OF THESE PRINCIPLES, TENNESSEE HAS
NOT OVERSTEPPED ITS BOUNDS. 

IN BASING ITS APPORTIONMENT ON MILEAGE, THE TENNESSEE COMMISSION
ADOPTED A FAMILIAR AND FREQUENTLY SANCTIONED FORMULA.  PULLMAN'S CAR
CO. V. PENNSYLVANIA, 141 U.S. 18; MAINE V. GRAND TRUNK RY. CO., 142
U.S. 217; PITTSBURGH, C., C. & ST. L. RY. CO. V. BACKUS, 154 U.S. 421;
BRANSON V. BUSH, 251 U.S. 182.  SEE 2 COOLEY ON TAXATION, PP. 1660-64. 
ITS ASSERTED INAPPLICABILITY TO THE PARTICULAR SITUATION IS RESTED ON
PETITIONER'S EVIDENCE AS TO THE COMPARATIVE REVENUE-PRODUCING CAPACITY
OF ITS LINES IN AND OUT OF TENNESSEE.  BUT BOTH THE COMMISSION AND THE
SUPREME COURT OF THE STATE THOUGHT THAT THIS EVIDENCE, HOWEVER WEIGHTY,
WAS INSUFFICIENT TO DISPLACE THE RELEVANCE OF THE FORMULA.  IN A MATTER
WHERE EXACTNESS IS CONCEDEDLY UNOBTAINABLE AND THE FEEL OF JUDGMENT SO
IMPORTANT A FACTOR, WE MUST BE ON GUARD LEST UNWITTINGLY WE DISPLACE
THE TAX OFFICIALS' JUDGMENT WITH OUR OWN.  CERTAINLY WE CANNOT SAY THAT
THE COMBINED JUDGMENT OF COMMISSION, BOARD, AND STATE COURTS IS
BASELESS.  WHEREVER THE STATES' TAXING AUTHORITIES HAVE BEEN HELD TO
HAVE INTRUDED UPON THE PROTECTED DOMAIN OF INTERSTATE COMMERCE IN THEIR
USE OF A MILEAGE FORMULA, THE SPECIAL CIRCUMSTANCES OF THE PARTICULAR
SITUATION, IN THE VIEW WHICH THIS COURT TOOK OF THEM, PRECLUDED A
DEFENSIBLE UTILIZATION OF THE MILEAGE BASIS.  UNION TANK LINE CO. V.
WRIGHT, 249 U.S. 275; WALLACE V. HINES, SUPRA; SOUTHERN RY. CO. V.
KENTUCKY, 274 U.S. 76.  NO SUCH CIRCUMSTANCES ARE HERE PRESENTED. 

THIS BRINGS US TO THE COMPANY'S CLAIMS UNDER THE FOURTEENTH
AMENDMENT.  THE RAILWAY FIRST ASSERTS THAT IT IS A VICTIM OF SUCH
INVIDIOUS DISCRIMINATION IN THE ADMINISTRATION OF TENNESSEE'S TAX
STATUTES AS IS PROSCRIBED BY THE GUARANTY OF "THE EQUAL PROTECTION OF
THE LAWS."  THE CLAIM IS FOUNDED UPON THE FOLLOWING CIRCUMSTANCES.  AS
WE HAVE ALREADY INDICATED, THERE ARE TWO SEPARATE MODES FOR THE
ASSESSMENT OF PROPERTY IN TENNESSEE, EACH WITH ITS DISTINCTIVE
PROCEDURE.  THE PROPERTY OF PUBLIC SERVICE CORPORATIONS IS ASSESSED BY
THE COMMISSION; ALL OTHER PROPERTY BY LOCAL OFFICIALS.  THIS BROAD
CLASSIFICATION, SEPARATING TWO VERY DIFFERENT TYPES OF PROPERTY, HAS
BEEN REFLECTED, ACCORDING TO PETITIONER'S CONTENTION, BY A
CORRESPONDING DIFFERENCE IN THE BASES OF ASSESSMENT.  FOR MORE THAN
FORTY YEARS, SO IT WAS URGED BEFORE THE COURTS OF TENNESSEE AND LATER
HERE, THE COUNTY ASSESSORS HAVE SYSTEMATICALLY VALUED PROPERTY AT FAR
LESS THAN ITS TRUE WORTH, WHILE UTILITY AND RAILROAD PROPERTIES HAVE
BEEN ASSESSED BY THE COMMISSION AT FULL VALUE.  FN1 THIS SYSTEMATIC
DIFFERENTIATION, PETITIONER CLAIMS, HAS BEEN CONTINUOUS AND STATE-WIDE
IN ITS OPERATION; HAS BEEN "REPEATEDLY BROUGHT TO THE ATTENTION OF THE
GENERAL ASSEMBLY OF THE STATE OF TENNESSEE"; HAS BEEN LEFT UNCORRECTED
BY THAT BODY; AND UNTIL THE PRESENT CASE, SO FAR AS WE ARE INFORMED,
HAS BEEN UNCHALLENGED.  IN SUPPORT OF ITS CLAIM THE RAILWAY ADDUCED
OFFICIAL AND UNOFFICIAL REPORTS AS WELL AS A VOLUME OF AFFIDAVITS FROM
LOCAL ASSESSING OFFICIALS IN THE COUNTIES THROUGH WHICH ITS LINES RUN -
ALL TO THE EFFECT THAT LOCALLY ASSESSED PROPERTY WAS UNDERVALUED.  THE
ISSUE OF FORBIDDEN DISCRIMINATION WAS THUS SQUARELY RAISED BELOW.  BUT
THE TENNESSEE SUPREME COURT DID NOT DEEM PETITIONER'S EVIDENCE
SUFFICIENT TO OVERCOME THE PRESUMPTION THAT IN THE EXERCISE OF ITS
REVIEWING FUNCTION, THE BOARD HAD EQUALIZED ASSESSMENTS IN ACCORDANCE
WITH THE COMMAND OF STATE LAW.  WE SHOULD BE RELUCTANT ON SUCH A
QUESTION TO REJECT THE STATE COURT'S DETERMINATION AS WITHOUT
FOUNDATION, AND THERE IS NOT ENOUGH IN THE RECORD TO WARRANT ITS
REPUDIATION.  AT THE BAR OF THIS COURT PETITIONER PROFFERED THE MINUTES
OF THE STATE BOARD OF EQUALIZATION - NOT IN THE RECORD - TO SHOW THE
ABSENCE OF EQUALIZATION.  CONSIDERING THE NATURE OF THE LITIGATION, THE
VIGOR AND ABILITY WITH WHICH IT WAS CONTESTED BEFORE THE CIRCUIT COURT
OF DAVIDSON COUNTY, ON MOTION FOR NEW TRIAL THERE, ON THE ORIGINAL
APPEAL TO THE SUPREME COURT OF TENNESSEE AND FINALLY ON PETITION FOR
REHEARING, IT WOULD INDEED TURN THIS COURT INTO A BOARD OF TAX REVIEW
IF WE WERE NOW TO RECEIVE EVIDENCE NOT OFFERED IN ANY OF THE TRIBUNALS
BELOW. 

BUT WERE WE TO TAKE JUDICIAL NOTICE OF THAT WHICH THESE MINUTES WERE
OFFERED TO SHOW, AND THEREFORE TO REGARD THE GROUND TAKEN BY THE STATE
COURT AS A STRAINED EVASION OF THE DIFFERENTIATION BETWEEN UTILITY
PROPERTY ON THE ONE HAND AND ALL THE REST ON THE OTHER, WE SHOULD STILL
FIND NO DENIAL OF THE EQUAL PROTECTION OF THE LAWS.  IT MUST BE
EMPHASIZED THAT THE COMPANY MAKES NO CLAIM THAT ITS PROPERTY IS SINGLED
OUT FROM AMONG OTHER PUBLIC SERVICE CORPORATIONS FOR DISCRIMINATION. 
ITS ASSERTED GRIEVANCE IS COMMON TO THE WHOLE CLASS.  WE MUST PUT TO
ONE SIDE THEREFORE ALL THOSE CASES RELIED ON BY THE PETITIONER WHICH
INVOKED THE FOURTEENTH AMENDMENT AGAINST DISCRIMINATIONS INVIDIOUS TO A
PARTICULAR TAXPAYER.  RAYMOND V. CHICAGO TRACTION CO., 207 U.S. 20;
SUNDAY LAKE IRON CO. V. WAKEFIELD, 247 U.S. 350; SIOUX CITY BRIDGE V.
DAKOTA COUNTY, 260 U.S. 441; BOHLER V. CALLAWAY, 267 U.S. 479;
CUMBERLAND COAL CO. V. BOARD, 284 U.S. 23; IOWA-DES MOINES BANK V.
BENNETT, 284 U.S. 239.  ALL THESE CASES ARE INAPPOSITE.  NONE DENIED
POWER TO A STATE TO APPLY DIFFERENT YARDSTICKS TO DIFFERENT CLASSES OF
PROPERTY.  EQUALLY IRRELEVANT ARE THOSE CASES IN WHICH THIS COURT,
BECAUSE OF THE NATURE OF THE LITIGATION, WAS CONSTRUING THE UNIFORMITY
CLAUSE OF A STATE CONSTITUTION, AND WAS NOT APPLYING THE FOURTEENTH
AMENDMENT.  GREENE V. LOUISVILLE & I.R. CO., 244 U.S. 499; LOUISVILLE &
N.R. CO. V. GREENE, 244 U.S. 522.  THIS COURT HAS PREVIOUSLY HAD
OCCASION TO ADVERT TO THE NARROW AND SOMETIMES CRAMPING PROVISION OF
THESE STATE UNIFORMITY CLAUSES, AND HAS LEFT NO DOUBT THAT THEIR
INFLEXIBLE RESTRICTIONS UPON THE TAXING POWERS OF THE STATE WERE NOT TO
BE INSINUATED INTO THAT MERITORIOUS CONCEPTION OF EQUALITY WHICH ALONE
THE EQUAL PROTECTION CLAUSE WAS DESIGNED TO ASSURE.  SEE PUGET SOUND
CO. V. KING COUNTY, 264 U.S. 22, 27. 

THAT THE STATES MAY CLASSIFY PROPERTY FOR TAXATION; MAY SET UP
DIFFERENT MODES OF ASSESSMENT, VALUATION AND COLLECTION; MAY TAX SOME
KINDS OF PROPERTY AT HIGHER RATES THAN OTHERS; AND IN MAKING ALL THESE
DIFFERENTIATIONS MAY TREAT RAILROADS AND OTHER UTILITIES WITH THAT
SEPARATENESS WHICH THEIR DISTINCTIVE CHARACTERISTICS AND FUNCTIONS IN
SOCIETY MAKE APPROPRIATE - THESE ARE AMONG THE COMMONPLACES OF TAXATION
AND OF CONSTITUTIONAL LAW.  KENTUCKY RAILROAD TAX CASES, 115 U.S. 321;
PACIFIC EXPRESS CO. V. SEIBERT, 142 U.S. 339; FLORIDA CENTRAL & P.R.
CO. V. REYNOLDS, 183 U.S. 471; SOUTHERN RY. CO. V. WATTS, 260 U.S. 519;
ATLANTIC COAST LINE V. DAUGHTON, 262 U.S. 413; RAPID TRANSIT CORP. V.
NEW YORK, 303 U.S. 573.  SINCE, SO FAR AS THE FEDERAL CONSTITUTION IS
CONCERNED, A STATE CAN PUT RAILROAD PROPERTY INTO ONE PIGEONHOLE AND
OTHER PROPERTY INTO ANOTHER, THE ONLY QUESTION RELEVANT FOR US IS
WHETHER THE STATE HAS DONE SO.  IF THE DISCRIMINATION OF WHICH THE
RAILWAY COMPLAINS HAD BEEN FORMALLY WRITTEN INTO THE STATUTES OF
TENNESSEE, CHALLENGE TO ITS CONSTITUTIONALITY WOULD BE FRIVOLOUS.  IF
THE STATE SUPREME COURT HAD CONSTRUED THE REQUIREMENT OF UNIFORMITY IN
THE TENNESSEE CONSTITUTION SO AS TO PERMIT RECOGNITION OF THESE
DIVERSITIES, NO APPEAL COULD SUCCESSFULLY BE MADE TO THE FOURTEENTH
AMENDMENT.  HERE, ACCORDING TO PETITIONER'S OWN CLAIM, ALL THE ORGANS
OF THE STATE ARE CONFORMING TO A PRACTICE, SYSTEMATIC, UNBROKEN FOR
MORE THAN FORTY YEARS, AND NOW QUESTIONED FOR THE FIRST TIME.  IT WOULD
BE A NARROW CONCEPTION OF JURISPRUDENCE TO CONFINE THE NOTION OF "LAWS"
TO WHAT IS FOUND WRITTEN ON THE STATUTE BOOKS, AND TO DISREGARD THE
GLOSS WHICH LIFE HAS WRITTEN UPON IT.  SETTLED STATE PRACTICE CANNOT
SUPPLANT CONSTITUTIONAL GUARANTEES, BUT IT CAN ESTABLISH WHAT IS STATE
LAW.  THE EQUAL PROTECTION CLAUSE DID NOT WRITE AN EMPTY FORMALISM INTO
THE CONSTITUTION.  DEEPLY EMBEDDED TRADITIONAL WAYS OF CARRYING OUT
STATE POLICY, SUCH AS THOSE OF WHICH PETITIONER COMPLAINS, ARE OFTEN
TOUGHER AND TRUER LAW THAN THE DEAD WORDS OF THE WRITTEN TEXT.  COMPARE
CARINO V. INSULAR GOVERNMENT, 212 U.S. 449, 459.  AND IF THE STATE
SUPREME COURT CHOOSES TO COVER UP UNDER A FORMAL VENEER OF UNIFORMITY
THE ESTABLISHED SYSTEM OF DIFFERENTIATION BETWEEN TWO CLASSES OF
PROPERTY, AN EXPOSURE OF THE FICTION IS NOT ENOUGH TO ESTABLISH ITS
UNCONSTITUTIONALITY.  FICTIONS HAVE PLAYED AN IMPORTANT AND SOMETIMES
FRUITFUL PART IN THE DEVELOPMENT OF LAW; AND THE EQUAL PROTECTION
CLAUSE IS NOT A COMMAND OF CANDOR.  SO WE ARE OF OPINION THAT SUCH A
DISCRIMINATION, NOT INVIDIOUS BUT LONG-SANCTIONED AND INDEED
CONVENTIONAL, WOULD NOT BE OFFENSIVE TO THE FOURTEENTH AMENDMENT SIMPLY
BECAUSE TENNESSEE HAD REACHED IT BY A CIRCUITOUS ROAD.  IT IS NOT THE
FOURTEENTH AMENDMENT'S FUNCTION TO UPROOT SYSTEMS OF TAXATION
INSEPARABLE FROM THE STATE'S TRADITION OF FISCAL ADMINISTRATION AND
INGRAINED IN THE HABITS OF ITS PEOPLE. 

FINALLY, THE RAILWAY CLAIMS THAT THE VALUATION OF ITS ENTIRE SYSTEM,
ON THE BASIS OF WHICH THE COMMISSION HAS MEASURED TENNESSEE'S SHARES,
IS SO FAR IN EXCESS OF "FULL CASH VALUE" AS TO OFFEND THE DUE PROCESS
CLAUSE.  THE DETAILS ON WHICH THIS CLAIM IS BASED ARE FULLY SET FORTH
IN THE OPINIONS BELOW AND CALL ONLY FOR SUMMARY TREATMENT HERE.  THE
ARGUMENT BASICALLY DERIVES FROM THE FACT THAT THE COMMISSION'S
VALUATION OF PETITIONER'S SYSTEM WAS THE SAME AS THAT FOR THE PREVIOUS
BIENNIUM, ALTHOUGH NUMEROUS ADVERSE ECONOMIC FACTORS ARE ALLEGED TO
HAVE GREATLY REDUCED THE PROPERTY'S WORTH.  BUT RAILROADS, UNLIKE FARMS
AND CITY LOTS AND STOCKS AND BONDS, ARE NOT OBJECTS OF EXCHANGE.  THE
VERY NOTION OF A "FULL CASH VALUE" FOR A RAILROAD IS IN MANY RESPECTS
ARTIFICIAL.  SEE 1 BONBRIGHT, THE VALUATION OF PROPERTY, PP. 511-632. 
WHATEVER MAY BE THE PRETENSES OF EXACTITUDE IN DETERMINING SUCH A
"VALUE," TO CLAIM FOR IT "SCIENTIFIC" VALIDITY, IS TO EMPLOY THE TERM
IN ITS LOOSEST SENSE.  COMPARE CHICAGO, B. & Q. RY. CO. V. BABCOCK, 204
U.S. 585, 598.  THOROUGH CANVASS BY THE STATE COURTS FOUND NO
JUSTIFICATION FOR UPSETTING THE DETERMINATION OF THE COMMISSION, AND WE
COULD SCARCELY FIND WARRANT IN THE RECORD FOR DOING SO. BUT EVEN
ASSUMING THAT THERE WAS AN OVERASSESSMENT, CONSTITUTIONAL INVALIDITY
WOULD NOT FOLLOW.  IF THE NEEDS OF A STATE REQUIRE HIGHER TAXES, THE
FOURTEENTH AMENDMENT CERTAINLY DOES NOT BAR THEIR IMPOSITION.  THE
MAINTENANCE OF HIGHER ASSESSMENT IN THE FACE OF DECLINING VALUE IS
MERELY ANOTHER WAY OF ACHIEVING THE SAME RESULT.  GREAT NORTHERN RY.
CO. V. WEEKS, 297 U.S. 135, DOES NOT BAR THE WAY.  THAT IS THE ONLY
CASE, AND IT WAS DECIDED BY A SHARPLY DIVIDED COURT, IN WHICH A NON
DISCRIMINATORY ASSESSMENT WAS STRUCK DOWN SIMPLY BECAUSE IT WAS THOUGHT
EXCESSIVE.  PLAINLY, THEREFORE, THE CASE MUST HAVE RESTED UPON
CONSIDERATIONS PECULIAR TO ITS OWN FACTS.  THOSE ARE NOT THE FACTS NOW
BEFORE US.  WE CONCLUDE, THEREFORE, THAT THE COMMISSION'S OVER
ASSESSMENT OF PETITIONER'S PROPERTY, IF OVER-ASSESSMENT THERE WAS,
CONSTITUTES NO DEPRIVATION OF ANY RIGHT UNDER THE FEDERAL
CONSTITUTION.  AFFIRMED. 

FN1  FOR A HISTORY OF TENNESSEE RAILROAD TAXATION, SEE BRANNEN,
TAXATION IN TENNESSEE, PP. 62 ET SEQ.; ROBISON, BOB TAYLOR AND THE
AGRARIAN REVOLT IN TENNESSEE, PP. 123 ET SEQ.
..END :
























UNITED STATES V. BUSH & CO., 310 U.S. 371 


NO. 613.  ARGUED APRIL 23, 24, 1940.  - DECIDED MAY 20, 1940.  - 27
C.C.P.A. - 104 F.2D 368, REVERSED. 


THE PRESIDENT, ACTING ON A REPORT AND RECOMMENDATION OF THE TARIFF
COMMISSION PURSUANT TO THE FLEXIBLE TARIFF PROVISIONS OF THE TARIFF ACT
OF 1930, PROCLAIMED AN INCREASE OF DUTY ON A JAPANESE PRODUCT, TO
EQUALIZE THE DIFFERENCE BETWEEN JAPANESE AND DOMESTIC COSTS OF
PRODUCTION.  IN FIXING THE INCREASE, FOREIGN COST OF PRODUCTION WAS
DETERMINED, UNDER SEC. 336(E), ON THE "WEIGHTED AVERAGE OF THE INVOICE
PRICES OR VALUES FOR A REPRESENTATIVE PERIOD," TAKING AS REPRESENTATIVE
THE PERIOD FROM DECEMBER 1, 1930, TO SEPTEMBER 30, 1932; BUT, AS THE
INVOICE PRICES WERE IN YEN AND AS SEC. 336 CONTAINS NO PROVISION FOR
CONVERSION OF CURRENCY, THE COMMISSION, IN ORDER TO COMPARE THOSE
PRICES WITH DOMESTIC COST, HAD CONVERTED THEM INTO DOLLARS AT THE
AVERAGE RATE OF EXCHANGE FOR 1932, SELECTING THAT PERIOD BECAUSE THE
VALUE OF YEN IN DOLLARS HAD DECLINED STEADILY FROM DECEMBER 1931 TO
NOVEMBER 1932.  HELD: 

1.  THERE IS NO EXPRESS PROVISION IN THE ACT REQUIRING THAT THE RATE
OF EXCHANGE BE TAKEN FROM THE SAME PERIOD AS THE INVOICE PRICES, AND
NONE CAN BE IMPLIED.  P. 378. 

2.  THE PRESIDENT'S JUDGMENT IN THE MATTER IS NOT SUBJECT TO SCRUTINY
BY THE COURT OF CUSTOMS AND PATENT APPEALS OR BY THIS COURT.  P. 379. 

3.  SECTION 501 OF THE ACT DOES NOT PERMIT JUDICIAL EXAMINATION OF
THE JUDGMENT OF THE PRESIDENT THAT THE RATES OF DUTY RECOMMENDED BY THE
COMMISSION ARE NECESSARY TO EQUALIZE THE DIFFERENCES IN DOMESTIC AND
FOREIGN COSTS OF PRODUCTION.  P. 379. 

4.  UNDER SEC. 336, THE COMMISSION SERVES THE PRESIDENT AS AN
ADVISER.  IT IS THE JUDGMENT OF THE PRESIDENT ON THE FACTS SUBMITTED TO
HIM BY THE COMMISSION THAT DETERMINES WHETHER OR NOT THE RECOMMENDED
RATE WILL BE PROMULGATED.  P. 379. 

5.  IN SUBSTANCE, AND TO A LARGE EXTENT IN FORM, THE ACTION OF THE
COMMISSION AND THE PRESIDENT IS BUT ONE STAGE OF THE LEGISLATIVE
PROCESS.  P. 379. 

UNITED STATES V. GEORGE S. BUSH & CO., INC. 

CERTIORARI TO THE COURT OF CUSTOMS AND PATENT APPEALS. 

CERTIORARI, 309 U.S. 643, TO REVIEW A JUDGMENT OF THE COURT OF
CUSTOMS AND PATENT APPEALS ORDERING A REAPPRAISEMENT UNDER SEC. 501 OF
THE TARIFF ACT OF 1930. 

THE ACTION TAKEN BY THE PRESIDENT AND THE COMMISSION WAS IN SUBSTANCE
ONE STAGE OF THE LEGISLATIVE PROCESS.  NORWEGIAN NITROGEN PRODUCTS CO.
V. UNITED STATES, 288 U.S. 294.  SUCH ACTION IS NOT SUBJECT TO JUDICIAL
IMPEACHMENT IF THE PRESCRIBED FORMS OF LEGISLATION HAVE BEEN REGULARLY
OBSERVED.  ID.  HERE THE INVESTIGATION CONDUCTED BY THE COMMISSION, THE
HEARING WHICH IT HELD AFTER DUE NOTICE TO ALL INTERESTED PARTIES, ITS
REPORT TO THE PRESIDENT, AND HIS PROCLAMATION APPROVING THE
COMMISSION'S RECOMMENDATION, CONSTITUTED A FULL AND REGULAR OBSERVANCE
OF THE FORMS PRESCRIBED. 

MOREOVER, IT DOES NOT APPEAR FROM THE PROCLAMATION WHETHER THE
PRESIDENT ACCEPTED THE REASONING OF THE TARIFF COMMISSION OR PREDICATED
HIS APPROVAL OF THE COMMISSION'S RECOMMENDATION UPON HIS OWN
CONCLUSIONS DRAWN FROM THE FACTS SET FORTH IN THE COMMISSION'S REPORT. 
IF THE REASONING OF THE COMMISSION WAS IN FACT BASED ON AN ERRONEOUS
INTERPRETATION OF THE STATUTE, THE PRESUMPTION THAT THE PRESIDENT ACTED
PROPERLY REQUIRES THE COURTS TO ASSUME THAT HE FOLLOWED THE LATTER
COURSE. 

THE HOLDING OF THE COURT BELOW THAT, UNDER SEC. 336(E)(2)(A), IF THE
WEIGHTED AVERAGE OF THE INVOICE PRICES FOR A REPRESENTATIVE PERIOD IS
USED TO DETERMINE FOREIGN COSTS OF PRODUCTION, THOSE PRICES MUST BE
CONVERTED INTO TERMS OF DOLLARS AT THE RATE OF EXCHANGE PREVAILING
DURING THAT PERIOD, HAS NO WARRANT IN THE PROVISIONS OF THE ACT AND TO
A VERY LARGE EXTENT NULLIFIES THE INTENTION OF CONGRESS IN ENACTING THE
FLEXIBLE TARIFF PROVISION. 

SEC. 336 CONTAINS NO MENTION OF CONVERSION OF CURRENCY.  IN THE
ABSENCE OF EXPRESS STATUTORY PROVISION IT SEEMS CLEAR THAT IN
CONVERTING FOREIGN COSTS INTO DOLLARS THE COMMISSION MAY, AS IT DID IN
THIS CASE, USE THE RATE OF EXCHANGE PREVAILING AT THE TIME OF ITS
INVESTIGATION, SINCE THIS RATE REFLECTS THE THEN EXISTING DIFFERENCES
IN COSTS OF PRODUCTION.  IF, AS HELD BY THE COURT BELOW, THE COMMISSION
IS REQUIRED TO CONVERT FOREIGN COSTS INTO DOLLARS AT THE RATE OF
EXCHANGE WHICH PREVAILED DURING THE PERIOD USED TO ASCERTAIN THE
FOREIGN COSTS BUT WHICH, DUE TO SUBSEQUENT EXCHANGE FLUCTUATIONS, IS
NOT THE RATE PREVAILING AT THE TIME OF THE INVESTIGATION, THE
COMMISSION WILL BE UTTERLY UNABLE TO PERFORM ITS FUNCTION OF
DETERMINING WHAT CHANGE IN DUTY WILL EQUALIZE THE DIFFERENCES IN COSTS
OF PRODUCTION AT THE TIME WHEN THE CHANGE BECOMES EFFECTIVE.  ALTHOUGH
THE LEGISLATIVE HISTORY OF SEC. 336 SHOWS PLAINLY THAT FLUCTUATING
FOREIGN EXCHANGE WAS ONE OF THE IMPORTANT FACTORS WHICH CONGRESS
CONSIDERED AS CREATING THE NEED FOR A FLEXIBLE TARIFF LAW, THE DECISION
BELOW RENDERS THE PROVISION LARGELY USELESS FOR THIS PURPOSE. 

EVEN IF THE CONSTRUCTION BY THE COURT BELOW IS CORRECT, THE ACTION OF
THE COMMISSION WAS STILL AUTHORIZED UNDER OTHER PROVISIONS OF SEC.
336. 

NEITHER THE TARIFF COMMISSION, NOR THE PRESIDENT IN HIS REVIEW OF THE
FACTS SUBMITTED BY THE COMMISSION, COMPLIED WITH THE PROVISIONS OF SEC.
336 WHEN THEY ASCERTAINED THE FOREIGN COST OF PRODUCTION, THE
DIFFERENCES IN COST OF PRODUCTION BETWEEN THE FOREIGN AND DOMESTIC
ARTICLE, AND THE "DUTIES EXPRESSLY FIXED BY STATUTE." 

IF THE PROCEDURE FOLLOWED BY THE COMMISSION AND THE PRESIDENT IS NOT
IN VIOLATION OF THE TERMS OF SEC. 336, THEN THE STATUTE IS AN
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER IN THAT IT GRANTS TO
AN ADMINISTRATIVE AGENT DISCRETION AS TO WHAT THE LAW SHALL BE. 

THE CONVERSION FROM YEN INTO DOLLARS AT THE AVERAGE RATE OF EXCHANGE
FOR THE YEAR 1932 WAS ILLEGAL, FOR BY THIS ACTION THE COMMISSION
OBTAINED A VALUE WHICH DID NOT REPRESENT THE COST OF PRODUCTION
REFERRED TO IN THE STATUTE, I.E., THE COST FOR THE SELECTED
"REPRESENTATIVE PERIOD." 

IN VIOLATION OF SEC. 336(A) THE COMMISSION FAILED TO ASCERTAIN THE
AMOUNT OF "DUTIES EXPRESSLY FIXED BY STATUTE" AND TO COMPARE THIS
AMOUNT WITH THE DIFFERENCES IN COSTS OF PRODUCTION.  ALTHOUGH THE
COMMISSION FOUND THAT "FOREIGN VALUE" WAS DUTIABLE VALUE, IT
DISREGARDED SEC. 402(C) OF THE ACT, REQUIRING THE DATE OF EXPORTATION
TO BE TAKEN IN ASCERTAINING FOREIGN VALUE, AND ALSO DISREGARDED SEC.
522 REQUIRING FOREIGN CURRENCY TO BE CONVERTED TO DOLLARS IN A
PARTICULAR MANNER. 

THE COMMISSION FAILED TO COMPARE THE AMOUNT OF DUTY BASED ON THE
AMERICAN SELLING PRICE AS DEFINED IN SEC. 402(G), WITH THE DIFFERENCE
IN COST OF PRODUCTION COMPUTED AS OF THE SAME PERIOD OF TIME. 

THE COMMISSION DID NOT ASCERTAIN THE REQUIRED FACTS FROM "THE
INVESTIGATION," BUT ASCERTAINED THEM BY USE OF AN UNAUTHORIZED AND
ILLEGAL CURRENCY-CONVERSION FACTOR. 

THE COMMISSION DID NOT SPECIFY IN ITS REPORT TO THE PRESIDENT SUCH
INCREASE OR DECREASE IN RATE OF DUTY OR CHANGE IN BASIS OF VALUE AS WAS
"SHOWN BY THE INVESTIGATION" TO BE NECESSARY TO EQUALIZE THE
DIFFERENCES IN COST OF PRODUCTION. 

AS TO THE COURT'S POWER TO REVIEW, SEE:  HAMPTON V. UNITED STATES,
276 U.S. 394, 409; ROBERTSON V. FRANK, 132 U.S. 17, 24; MUSER V.
MAGONE, 155 U.S. 240, 247; UNITED STATES V. PASSAVANT, 169 U.S. 16, 21;
WAITE V. MACY, 246 U.S. 606; NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED
STATES, 288 U.S. 294; MOSS V. UNITED STATES, 26 C.C.P.A. 381, 385; 103
F.2D 395; FOSTER V. UNITED STATES, 20 C.C.P.A. 15, 23; FOX RIVER BUTTER
CO. V. UNITED STATES, 20 C.C.P.A. 38, 45; UNITED STATES V. SEARS,
ROEBUCK & CO., 20 C.C.P.A. 295, 301; CERT. DEN.  290 U.S. 633. 

AS TO WHAT CONSTITUTES "LEGAL INVESTIGATION" BY THE TARIFF
COMMISSION, AND "PROCEEDING IN CONFORMITY WITH LAW" BY THE PRESIDENT,
THE FOLLOWING DECISIONS ARE PERTINENT:  FOSTER V. UNITED STATES, 20
C.C.P.A. 15, 22, 25-6; ZEISS V. UNITED STATES, 23 C.C.P.A. 7, 14;
NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, 20 C.C.P.A. 27, 34-5;
288 U.S. 294; FOX RIVER BUTTER CO. V. UNITED STATES, 20 C.C.P.A. 38,
45; MOSS V. UNITED STATES, SUPRA. 

AS BOTH DECISIONS BY THIS COURT IN CASES PERTAINING TO THE FLEXIBLE
TARIFF PROVISIONS (HAMPTON V. UNITED STATES, SUPRA, AND NORWEGIAN
NITROGEN PRODUCTS CO. V. UNITED STATES, SUPRA), AND MANY OF THE
DECISIONS BY THE COURT OF CUSTOMS AND PATENT APPEALS IN SIMILAR
LITIGATION, RELATE TO ACTIONS BROUGHT UNDER THE TARIFF ACT OF
1922(SEC.  315), RATHER THAN THE ACT OF 1930(SEC.  336), THE
DIFFERENCES IN THE RESPECTIVE PROVISIONS OF THE TWO ACTS MUST BE KEPT
IN MIND WHEN CONSIDERING THE PRESENT CASE IN THE LIGHT OF THESE
DECISIONS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE COURT OF CUSTOMS AND PATENT APPEALS HELD INVALID THE PROCLAMATION
MADE BY THE PRESIDENT OF THE UNITED STATES ON MAY 1, 1934, INCREASING
THE DUTY ON CANNED CLAMS IMPORTED FROM JAPAN.  104 F.2D 368.  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THAT DECISION TO THE
ADMINISTRATION OF THE FLEXIBLE TARIFF PROVISIONS OF THE TARIFF ACT OF
1930(46 STAT. 590). 

IN COMPLIANCE WITH SEC. 336(A) OF THAT ACT, THE TARIFF COMMISSION, IN
RESPONSE TO AN APPLICATION FOR AN INCREASED DUTY ON CANNED CLAMS,
INSTITUTED AN INVESTIGATION IN JUNE 1932, GAVE PUBLIC NOTICE OF THE
HEARING, HELD THE HEARING IN OCTOBER 1932 AND GAVE INTERESTED PARTIES
AN OPPORTUNITY TO BE PRESENT, TO PRODUCE EVIDENCE, AND TO BE HEARD.  AS
A RESULT OF THAT INVESTIGATION THE COMMISSION FOUND THAT THE STATUTORY
DUTY OF 35% AD VALOREM ON THE FOREIGN DUTIABLE VALUE  FN1  DID NOT
EQUALIZE THE DIFFERENCE IN THE COSTS OF PRODUCTION OF THE DOMESTIC
ARTICLE AND THE JAPANESE ARTICLE.  ON SUCH A FINDING THE COMMISSION WAS
AUTHORIZED BY SEC. 336(A) TO RECOMMEND TO THE PRESIDENT AN INCREASE OR
DECREASE IN THE STATUTORY RATE BUT NOT IN EXCESS OF 50 PER CENT; OR IN
CASE THE DIFFERENCES COULD NOT BE EQUALIZED IN THAT MANNER, IT WAS
EMPOWERED BY SEC. 336(B) TO SPECIFY SUCH AD VALOREM RATE OF DUTY BASED
UPON THE AMERICAN SELLING PRICE  FN2  OF THE DOMESTIC ARTICLE AS IT
FOUND NECESSARY TO EQUALIZE SUCH DIFFERENCES.  IN THE LATTER EVENT,
HOWEVER, THE STATUTORY RATE COULD NOT BE INCREASED.  THE COMMISSION
FOUND THAT THE RATE OF DUTY ON FOREIGN VALUE WHICH WOULD BE NECESSARY
TO EQUALIZE THE DIFFERENCE IN COSTS EXCEEDED THE THEN EXISTING
STATUTORY RATE BY MORE THAN 50 PER CENT.  ACCORDINGLY IT PROCEEDED
UNDER SEC. 336(B) TO SPECIFY AN AD VALOREM RATE BASED ON AMERICAN
SELLING PRICE, AND RECOMMENDED TO THE PRESIDENT AN INCREASE IN THE
DUTY, TO BE EFFECTED BY ASSESSING THE RATE OF 35 PER CENT AD VALOREM ON
THE AMERICAN SELLING PRICE. 

IT IS PROVIDED IN SEC. 336(C) THAT THE PRESIDENT "SHALL BY
PROCLAMATION APPROVE THE RATES OF DUTY AND CHANGES IN CLASSIFICATION
AND IN BASIS OF VALUE SPECIFIED IN ANY REPORT OF THE COMMISSION UNDER
THIS SECTION, IF IN HIS JUDGMENT SUCH RATES OF DUTY AND CHANGES ARE
SHOWN BY SUCH INVESTIGATION OF THE COMMISSION TO BE NECESSARY TO
EQUALIZE SUCH DIFFERENCES IN COSTS OF PRODUCTION."  THE PROCLAMATION
REFERRED TO THE REPORT AND FINDINGS OF THE COMMISSION AND CONCLUDED
THAT THE CHANGE IN DUTY RECOMMENDED WAS "IN THE JUDGMENT OF THE
PRESIDENT" NECESSARY FOR THAT PURPOSE.  AFTER THE PRESIDENT ISSUED HIS
PROCLAMATION, RESPONDENT IMPORTED SOME CANNED CLAMS AND THEY WERE
APPRAISED ON THE BASIS OF THE AMERICAN SELLING PRICE.  IT WAS ON AN
APPEAL FOR REAPPRAISEMENT PURSUANT TO SEC. 501 THAT THE PROCLAMATION
WAS HELD INVALID BY THE COURT OF CUSTOMS AND PATENT APPEALS.  ITS
INVALIDITY, ACCORDING TO THAT COURT, FLOWED FROM THE BASIS ON WHICH THE
COMMISSION COMPUTED THE JAPANESE COST OF PRODUCTION.  BY SEC. 336(E)(2)
THE COMMISSION WAS AUTHORIZED, WHEN THE COST OF PRODUCTION OF A FOREIGN
ARTICLE WAS NOT "READILY ASCERTAINABLE," TO ACCEPT AS EVIDENCE THEREOF
THE "WEIGHTED AVERAGE OF THE INVOICE PRICES OR VALUES FOR A
REPRESENTATIVE PERIOD."  THE COMMISSION TOOK THE WEIGHTED AVERAGE OF
SUCH PRICES FOR THE PERIOD FROM DECEMBER 1, 1930, TO SEPTEMBER 30,
1932.  THOSE PRICES WERE IN JAPANESE YEN.  SEC. 336 CONTAINS NO
PROVISION FOR CONVERSION OF CURRENCY.  BUT THE COMMISSION IN ORDER TO
COMPARE THOSE PRICES WITH DOMESTIC COSTS CONVERTED THEM INTO UNITED
STATES DOLLARS, AT THE AVERAGE RATE OF EXCHANGE FOR 1932.  THAT PERIOD
WAS SELECTED BECAUSE JAPAN WENT OFF THE GOLD STANDARD IN DECEMBER 1931
AND THE VALUE OF THE YEN IN TERMS OF UNITED STATES DOLLARS DECLINED
STEADILY FROM THAT DATE TO NOVEMBER 1932.  FN3 

THE COURT OF CUSTOMS AND PATENT APPEALS HELD THAT IT WAS ERROR TO
CONVERT INVOICE PRICES FOR ONE PERIOD INTO UNITED STATES DOLLARS AT THE
AVERAGE RATE OF EXCHANGE FOR ANOTHER PERIOD.  IN ITS VIEW THE PHRASE
"WEIGHTED AVERAGE OF THE INVOICE PRICES OR VALUES FOR A REPRESENTATIVE
PERIOD" CONTAINED IN SEC. 336(E)(2) MUST BE CONSTRUED AS THOUGH IT
READ, "WEIGHTED AVERAGE OF THE INVOICE PRICES OR VALUES IN UNITED
STATES CURRENCY FOR A REPRESENTATIVE PERIOD."  THE GOVERNMENT, HOWEVER,
URGES THAT IF THE COMMISSION WERE FORCED TO TAKE THE CONVERSION RATE
FOR THE EARLIER PERIOD, TO WHICH IT HAD TO RESORT IN ORDER TO OBTAIN
THE INVOICE PRICES, IT WOULD USE A RATE WHICH HAD MERELY AN HISTORICAL
INTEREST AND WHICH DID NOT REFLECT THE CONDITIONS WHICH MADE DESIRABLE
AN INCREASE IN THE DUTIES, VIZ. THE DEPRECIATION IN THE VALUE OF THE
YEN. 

THE DETERMINATION OF FOREIGN EXCHANGE VALUE WAS PRESCRIBED, IN THE
PROCEDURE OUTLINED BY CONGRESS, NEITHER FOR THE ACTION OF THE
COMMISSION NOR FOR THAT OF THE PRESIDENT.  FN4  THERE IS NO EXPRESS
PROVISION IN THE ACT THAT THE RATE OF EXCHANGE MUST BE TAKEN FOR THE
SAME PERIOD AS THE INVOICE PRICES.  TO IMPLY IT WOULD BE TO ADD WHAT
CONGRESS HAS OMITTED AND DOUBTLESS OMITTED IN VIEW OF THE VERY NATURE
OF THE PROBLEM.  THE MATTER WAS LEFT AT LARGE.  THE PRESIDENT'S METHOD
OF SOLVING THE PROBLEM WAS OPEN TO SCRUTINY NEITHER BY THE COURT OF
CUSTOMS AND PATENT APPEALS NOR BY US.  WHATEVER MAY BE THE SCOPE OF
APPELLATE JURISDICTION CONFERRED BY SEC. 501 OF THE TARIFF ACT OF 1930,
FN5  IT CERTAINLY DOES NOT PERMIT JUDICIAL EXAMINATION OF THE JUDGMENT
OF THE PRESIDENT THAT THE RATES OF DUTY RECOMMENDED BY THE COMMISSION
ARE NECESSARY TO EQUALIZE THE DIFFERENCES IN THE DOMESTIC AND FOREIGN
COSTS OF PRODUCTION. 

THE POWERS WHICH CONGRESS HAS ENTRUSTED TO THE PRESIDENT UNDER THE
ACT OF 1930 DO NOT ESSENTIALLY DIFFER IN KIND FROM THOSE WHICH HAVE
BEEN GRANTED HIM UNDER THE TARIFF ACTS FOR WELL OVER A CENTURY.  SEE
NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, 288 U.S. 294, 308 ET
SEQ., FOR A REVIEW OF THE STATUTES.  SINCE ITS CREATION IN 1916 THE
COMMISSION HAS ACTED AS AN ADVISER TO THE CONGRESS OR TO THE
PRESIDENT.  UNDER SEC. 336 OF THE ACT OF 1930 THE COMMISSION SERVES THE
PRESIDENT IN THAT ROLE.  IT DOES NOT INCREASE OR DECREASE THE RATES OF
DUTY; IT IS BUT THE EXPERT BODY WHICH INVESTIGATES AND SUBMITS THE
FACTS AND ITS RECOMMENDATIONS TO THE PRESIDENT.  IT IS THE JUDGMENT OF
THE PRESIDENT ON THOSE FACTS WHICH IS DETERMINATIVE OF WHETHER OR NOT
THE RECOMMENDED RATES WILL BE PROMULGATED.  IN SUBSTANCE AND TO A GREAT
EXTENT IN FORM (NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES,
SUPRA) THE ACTION OF THE COMMISSION AND THE PRESIDENT IS BUT ONE STAGE
OF THE LEGISLATIVE PROCESS.  HAMPTON & CO. V. UNITED STATES, 276 U.S.
394.  "NO ONE HAS A LEGAL RIGHT TO THE MAINTENANCE OF AN EXISTING RATE
OR DUTY."  NORWEGIAN NITROGEN PRODUCTS CO. V. UNITED STATES, SUPRA, P.
318.  AND THE JUDGMENT OF THE PRESIDENT THAT ON THE FACTS, ADDUCED IN
PURSUANCE OF THE PROCEDURE PRESCRIBED BY CONGRESS, A CHANGE OF RATE IS
NECESSARY IS NO MORE SUBJECT TO JUDICIAL REVIEW UNDER THIS STATUTORY
SCHEME THAN IF CONGRESS ITSELF HAD EXERCISED THAT JUDGMENT.  IT HAS
LONG BEEN HELD THAT WHERE CONGRESS HAS AUTHORIZED A PUBLIC OFFICER TO
TAKE SOME SPECIFIED LEGISLATIVE ACTION WHEN IN HIS JUDGMENT THAT ACTION
IS NECESSARY OR APPROPRIATE TO CARRY OUT THE POLICY OF CONGRESS, THE
JUDGMENT OF THE OFFICER AS TO THE EXISTENCE OF THE FACTS CALLING FOR
THAT ACTION IS NOT SUBJECT TO REVIEW.  MARTIN V. MOTT, 12 WHEAT.  19;
MONONGAHELA BRIDGE CO. V. UNITED STATES, 216 U.S. 177; DAKOTA CENTRAL
TELEPHONE CO. V. SOUTH DAKOTA, 250 U.S. 163; UNITED STATES V. CHEMICAL
FOUNDATION, INC., 272 U.S. 1.  AS STATED BY MR. JUSTICE STORY IN MARTIN
V. MOTT, SUPRA, PP. 31-32:  "WHENEVER A STATUTE GIVES A DISCRETIONARY
POWER TO ANY PERSON, TO BE EXERCISED BY HIM UPON HIS OWN OPINION OF
CERTAIN FACTS, IT IS A SOUND RULE OF CONSTRUCTION, THAT THE STATUTE
CONSTITUTES HIM THE SOLE AND EXCLUSIVE JUDGE OF THE EXISTENCE OF THOSE
FACTS." 

FOR THE JUDICIARY TO PROBE THE REASONING WHICH UNDERLIES THIS
PROCLAMATION WOULD AMOUNT TO A CLEAR INVASION OF THE LEGISLATIVE AND
EXECUTIVE DOMAINS.  UNDER THE CONSTITUTION IT IS EXCLUSIVELY FOR
CONGRESS, OR THOSE TO WHOM IT DELEGATES AUTHORITY, TO DETERMINE WHAT
TARIFFS SHALL BE IMPOSED.  HERE THE PRESIDENT ACTED IN FULL CONFORMITY
WITH THE STATUTE.  NO QUESTION OF LAW IS RAISED WHEN THE EXERCISE OF
HIS DISCRETION IS CHALLENGED. 

THE OTHER POINTS RAISED ARE SO UNIMPORTANT AS NOT TO MERIT
DISCUSSION.  REVERSED. 

FN1  SEC. 1, SCH.  7, PAR. 721(B). 

FN2  AS DEFINED IN SEC. 402(G). 

FN3  THE COMMISSION IN ITS REPORT TO THE PRESIDENT, DATED APRIL 5,
1934, STATED ON THIS POINT: 

"THE YEARS 1931 AND 1932 ARE REPRESENTATIVE WITH RESPECT TO THE
DOMESTIC COST OF PRODUCTION OF CANNED CLAMS AND THE INVOICE PRICES OF
JAPANESE CANNED CLAMS, IN TERMS OF JAPANESE CURRENCY.  DURING MOST OF
1931 THE EXCHANGE RATE OF THE JAPANESE YEN FOR THE DOLLAR WAS NOT MUCH
BELOW PAR, WHEREAS SINCE THAT TIME IT HAS BEEN MUCH BELOW PAR. FOR THIS
REASON THE INVOICE PRICES OF THE JAPANESE PRODUCT IMPORTED IN 1931,
WHEN CONVERTED TO DOLLARS AT THE THEN CURRENT RATE OF EXCHANGE, ARE NOT
REPRESENTATIVE OF THE PRESENT OR PROBABLE FUTURE INVOICE VALUES IN
TERMS OF DOLLARS.  THE COMMISSION HAS, THEREFORE, USED, FOR COMPARISON
WITH THE DOMESTIC COSTS, THE INVOICE PRICES IN YEN AS EVIDENCE OF COSTS
OF THE JAPANESE PRODUCT DURING 1931 AND 1932, CONVERTED TO DOLLARS AT
THE AVERAGE RATE OF EXCHANGE FOR 1932.  ALTHOUGH THE EXCHANGE RATE OF
THE YEN HAS RISEN SINCE APRIL 1933, THE RATE NOW PREVAILING IS NOT MUCH
HIGHER THAN THE AVERAGE RATE FOR 1932." 

FN4  SEC. 522(B) PROVIDES THAT FOR "THE PURPOSE OF THE ASSESSMENT AND
COLLECTION OF DUTIES" UPON IMPORTS, FOREIGN CURRENCY SHALL BE CONVERTED
AT VALUES PROCLAIMED BY THE SECRETARY OF THE TREASURY FOR THE QUARTER
IN WHICH THE MERCHANDISE WAS EXPORTED.  THIS SECTION CLEARLY HAS NO
APPLICATION TO THE ISSUE HERE, SINCE IT APPLIES ONLY TO ASSESSMENT AND
COLLECTION OF DUTIES - MATTERS OUTSIDE THE FUNCTIONS AND DUTIES OF THE
TARIFF COMMISSION. 

FN5  THAT SECTION GIVES EITHER PARTY A RIGHT TO APPEAL TO THE COURT
OF CUSTOMS AND PATENT APPEALS ON "A QUESTION OR QUESTIONS OF LAW
ONLY." 

MR. JUSTICE MCREYNOLDS IS OF THE OPINION THAT THE JUDGMENT BELOW
SHOULD BE AFFIRMED. 
..END :























SUNSHINE COAL CO. V. ADKINS, 310 U.S. 381 


NO. 804.  ARGUED APRIL 29, 1940.  - DECIDED MAY 20, 1940.  - AFFIRMED. 


1.  THE 19 1/2% TAX IMPOSED BY SEC. 3(B) OF THE BITUMINOUS COAL
CONSERVATION ACT (1937) ON SALES OF SUCH COAL BY PRODUCERS, "WHICH
WOULD BE SUBJECT TO THE APPLICATION OF THE CONDITIONS AND PROVISIONS OF
THE CODE PROVIDED FOR IN SEC. 4, OR OF THE PROVISIONS OF SEC. 4A,"
APPLIES TO PRODUCERS WHO ARE NOT MEMBERS OF THE CODE, ALTHOUGH UNDER
SEC. 4 THE PROVISIONS OF THE CODE ARE FOR CODE MEMBERS ONLY.  P. 391. 

A CONTRARY CONSTRUCTION WOULD READ THE 19 1/2% TAX OUT OF THE ACT,
(SINCE BY SEC. 3(B) CODE MEMBERS ARE EXEMPT FROM IT); THE ESSENTIAL
SANCTION OF THE ACT WOULD THEN DISAPPEAR AND ITS EFFECTIVENESS WOULD BE
SERIOUSLY IMPAIRED.  SECTION 4 IS MADE EXPRESSLY APPLICABLE "ONLY TO
MATTERS AND TRANSACTIONS IN OR DIRECTLY AFFECTING INTERSTATE
COMMERCE."  IT SEEMS PLAIN THAT THE TAX WAS INTENDED TO APPLY ONLY TO
THOSE SALES BY NON-CODE MEMBERS WHICH "WOULD BE" SUBJECT TO REGULATION
UNDER SEC. 4.  P. 392. 

2.  THE CONSTITUTIONALITY OF THE ACT IS UPHELD OVER THE CONTENTIONS
THAT THE 19 1/2% TAX IS NOT A TAX BUT A PENALTY; THAT CONGRESS LACKS
POWER TO FIX MINIMUM PRICES FOR BITUMINOUS COAL SOLD IN INTERSTATE
COMMERCE; THAT THERE HAS BEEN AN INVALID DELEGATION OF LEGISLATIVE AND
JUDICIAL POWER; AND THAT THE DIVISION OF BITUMINOUS COAL INTO CODE AND
NON-CODE CLASSES IS IMPROPER.  PP. 393 ET SEQ. 

3.  THE TAXING POWER OF CONGRESS MAY BE USED AS A SANCTION FOR THE
EXERCISE OF ANOTHER GRANTED POWER.  P. 393. 

4.  THE REGULATORY PROVISIONS OF THE ACT ARE WITHIN THE COMMERCE
POWER; THEY APPLY ONLY TO SALES OR TRANSACTIONS IN, OR INTIMATELY
AFFECTING, INTERSTATE COMMERCE.  P. 393. 

5.  PRICE CONTROL IS A MEANS AVAILABLE TO CONGRESS FOR THE PROTECTION
AND PROMOTION OF THE PUBLIC ECONOMY.  P. 394. 

COURTS ARE NOT CONCERNED WITH THE WISDOM, POLICY OR APPROPRIATENESS
OF THIS LEGISLATION.  BUT THE STATE OF THE BITUMINOUS COAL INDUSTRY AND
ITS HISTORY AND PUBLIC IMPORTANCE, PLAINLY SUPPORT THE JUDGMENT OF
CONGRESS THAT PRICE-FIXING AND THE ELIMINATION OF UNFAIR COMPETITIVE
PRACTICES WERE APPROPRIATE METHODS FOR PREVENTION OF THE FINANCIAL
RUIN, LOW WAGES, POOR WORKING CONDITIONS, STRIKES, AND DISRUPTION OF
THE CHANNELS OF TRADE WHICH FOLLOWED IN THE WAKE OF THE DEMORALIZED
PRICE STRUCTURES.  P. 394. 

6.  CONGRESS MAY MODIFY THE PROHIBITIONS OF THE SHERMAN ACT BY
PLACING THE MACHINERY OF PRICE-FIXING IN THE HANDS OF PUBLIC AGENCIES. 
P. 396. 

7.  CONGRESS MAY SINGLE OUT A PARTICULAR INDUSTRY AND REMOVE AS TO IT
THE PENALTIES OF THE SHERMAN ACT.  P. 396. 

8.  THE COMMERCE CLAUSE EMPOWERS CONGRESS TO STABILIZE AN INTERSTATE
INDUSTRY THROUGH A PROCESS OF PRICE-FIXING WHICH SAFEGUARDS THE PUBLIC
INTEREST BY PLACING PRICE-CONTROL IN THE HANDS OF ITS ADMINISTRATIVE
REPRESENTATIVE.  P. 396. 

9.  THE STANDARDS SPECIFIED BY SEC. 4, IIC) OF THE BITUMINOUS COAL
ACT TO CONTROL THE COMMISSION IN FIXING MAXIMUM AND MINIMUM PRICES
BINDING CODE MEMBERS, ARE ADEQUATE, AND THERE IS NO INVALID DELEGATION
OF LEGISLATIVE POWER.  P. 397. 

10.  IN THE MATTER OF PRICE-MAKING, CODE MEMBERS ARE SUBORDINATED BY
THE ACT TO THE COMMISSION, SO THAT THERE IS NO DELEGATION OF
LEGISLATIVE AUTHORITY TO THE INDUSTRY.  P. 399. 

11.  THE DEFINITION OF BITUMINOUS COAL IN THE ACT, SEC. 17(B), IS
ADEQUATE AS A STANDARD FOR THE COMMISSION'S ACTION IN DETERMINING WHAT
COAL IS SUBJECT TO THE ACT.  P. 399. 

12.  THE ACT MAKES NO INVALID DELEGATION OF JUDICIAL POWER TO THE
COMMISSION FOR DETERMINING WHETHER A PARTICULAR COAL PRODUCER FALLS
WITHIN ITS PROVISIONS; AND IT GRANTS SUFFICIENT JUDICIAL REVIEW.  P.
400. 

13.  A CONTENTION THAT THE ACT, BY CLASSIFYING THE COAL AS CODE AND
NON-CODE AND APPLYING THE 19 1/2% TAX TO THE LATTER ALONE, VIOLATES THE
FIFTH AMENDMENT, IS REJECTED, SINCE THE PROCEDURAL FEATURES SATISFY DUE
PROCESS, AND THE FIFTH AMENDMENT HAS NO EQUAL PROTECTION CLAUSE; NOR IS
UNIFORMITY REQUIRED BY THE COMMERCE CLAUSE.  P. 400. 

14.  A JUDGMENT SUSTAINING ON REVIEW A DETERMINATION BY THE
BITUMINOUS COAL COMMISSION THAT A PRODUCER'S COAL IS "BITUMINOUS"
WITHIN THE MEANING OF SEC. 17(B) OF THE BITUMINOUS COAL CONSERVATION
ACT, THUS SUBJECTING HIM TO THE 19 1/2% TAX LAID ON SALES BY PRODUCERS
WHO HAVE NOT JOINED THE CODE, IS RES JUDICATA IN A SUIT BY THE PRODUCER
TO ENJOIN THE COMMISSIONER OF INTERNAL REVENUE FROM COLLECTING THE
TAX.  P. 401. 

15.  WHERE CONGRESS HAS CREATED A SPECIAL ADMINISTRATIVE PROCEDURE
FOR DETERMINING THE STATUS OF PERSONS AND COMPANIES UNDER A REGULATORY
ACT, AND HAS PRESCRIBED A PROCEDURE SATISFYING DUE PROCESS, THAT REMEDY
IS EXCLUSIVE.  P. 404. 

16.  IN THE CIRCUMSTANCES OF THIS CASE, APPELLANT IS NOT ENTITLED TO
RELIEF FROM PAYMENT OF TAXES ACCRUED DURING THE LITIGATION SINCE THE
DATE FIXED BY THE DECREE BELOW.  P. 404. 

SUNSHINE ANTHRACITE COAL CO. V. ADKINS, COLLECTOR OF INTERNAL
REVENUE. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF ARKANSAS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT DISMISSING A BILL TO
ENJOIN THE COLLECTION OF TAXES.  SEE ALSO 31 F.SUPP.  125 AND 105 F.2D
559. 

THIS CASE DOES NOT CHALLENGE EITHER DIRECTLY OR INDIRECTLY ANY ORDER
OF THE COMMISSION, AND, IN ANY EVENT, THERE IS NO PRIVITY BETWEEN THE
NATIONAL BITUMINOUS COAL COMMISSION OR ITS SUCCESSOR AND THE APPELLEE
HEREIN. 

NO POWER TO HOLD HEARINGS AND MAKE DETERMINATION OF WHAT IS OR IS NOT
BITUMINOUS COAL WITHIN THE MEANING OF THE BITUMINOUS COAL ACT OF 1937
IS DELEGATED BY THE ACT, EITHER DIRECTLY OR INFERENTIALLY, TO THE
NATIONAL BITUMINOUS COAL COMMISSION OR ITS SUCCESSOR. 

IF THE STATUTE BE CONSTRUED AS DELEGATING TO THE COMMISSION POWER TO
DETERMINE THE OBJECT TO WHICH THE LAW IS TO BE APPLIED, WITHOUT FIXED
STANDARDS, IT IS INVALID AS AN UNCONSTITUTIONAL DELEGATION OF
LEGISLATIVE POWER.  IF IT BE CONSTRUED AS DELEGATING POWER TO EXERCISE
THE JUDICIAL FUNCTION OF CONSTRUCTION OF THE ACT, THEN IT IS INVALID AS
AN UNLAWFUL DELEGATION OF JUDICIAL POWER. 

CONSTRUCTION OF THE ACT AS TO THE MEANING OF "BITUMINOUS, SEMI
BITUMINOUS AND SUB-BITUMINOUS" IS A JUDICIAL FUNCTION AND CAN NOT BE
DELEGATED TO AN ADMINISTRATIVE TRIBUNAL. 

SINCE APPELLANT IS A NON-CODE PRODUCER, SALE OF APPELLANT'S COAL IS
NOT SUBJECT TO THE APPLICATION OF PROVISIONS OF THE CODE PROVIDED FOR
IN SEC. 4 OR OF THE PROVISIONS OF SEC. 4-A, AND THEREFORE IS NOT
SUBJECT TO THE SO-CALLED 19 1/2% TAX. 

THE BITUMINOUS COAL ACT OF 1937 IS UNCONSTITUTIONAL FOR THE FOLLOWING
REASONS:  (A)  THE DIVISION OF A NATURAL CLASS, BITUMINOUS COAL, INTO
ARTIFICIAL CLASSES OF CODE AND NON-CODE FOR REGULATORY PURPOSES IS
UNREASONABLE AND ARBITRARY, AND VIOLATES THE FIFTH AMENDMENT.  (B)  THE
SO-CALLED 19 1/2% TAX ON SALE PRICE OF COAL IS OBVIOUSLY NOT A TAX, BUT
A CONFISCATORY PENALTY ASSESSED WITHOUT FAULT ON THE PART OF THE
APPELLANT.  EXEMPTION FROM SAID SOCALLED TAX IS BASED NOT UPON
DIFFERENCE IN EITHER CONDUCT OR PRODUCT, BUT SOLELY UPON MEMBERSHIP IN
THE CODE.  SUCH CLASSIFICATION FOR EXEMPTION PURPOSES IS CLEARLY
UNREASONABLE AND ARBITRARY, AND NOT IN ANY WISE A PROPER METHOD OF
ACCOMPLISHING A PROPER CONGRESSIONAL PURPOSE, AND VIOLATES THE FIFTH
AMENDMENT.  MEMBERSHIP OR NONMEMBERSHIP IN AN ORGANIZATION CERTAINLY
CANNOT BE A PROPER BASIS FOR CLASSIFICATION EITHER FOR PURPOSES OF
REGULATION OR TAXATION.  (C)  CONGRESS IS WITHOUT POWER TO FIX MINIMUM
PRICES FOR BITUMINOUS COAL SOLD IN INTERSTATE COMMERCE.  NEBBIA V. NEW
YORK, 291 U.S. 502, 536; UNITED STATES V. ROCK ROYAL CO-OPERATIVE, 307
U.S. 533.  MULFORD V. SMITH, 307 U.S. 38, DISTINGUISHED. 

THE PRICE-FIXING PROVISIONS OF THE BITUMINOUS COAL ACT OF 1937 ARE IN
SUBSTANCE THE SAME AS THOSE CONTAINED IN THE BITUMINOUS COAL
CONSERVATION ACT OF 1935.  ALTHOUGH THE MAJORITY OF THE COURT IN CARTER
V. CARTER COAL CO., 298 U.S. 238, DID NOT PASS UPON THE VALIDITY OF
THESE PROVISIONS, THE DISSENTING OPINIONS INDICATED THAT THEY WERE
VALID. 

SINCE THE REGULATORY PROVISIONS APPLY ONLY TO SALES IN OR DIRECTLY
AFFECTING INTERSTATE COMMERCE, THEY ARE A VALID EXERCISE OF THE FEDERAL
COMMERCE POWER.  UNITED STATES V. ROCK ROYAL CO-OPERATIVE, 307 U.S.
533. 

STATUTES FIXING PRICES DO NOT VIOLATE THE DUE PROCESS CLAUSE.  MAYO
V. LAKELAND HIGHLANDS CANNING CO., 309 U.S. 310.  EVEN IF CONDITIONS IN
AN INDUSTRY BE DEEMED MATERIAL, THE BURDEN OF PROVING THAT THE
REGULATION IS ARBITRARY OR CAPRICIOUS AND OF OVERCOMING THE PRESUMPTION
OF CONSTITUTIONALITY IS UPON THE PERSON ASSAILING THE VALIDITY OF THE
STATUTE, AND THAT BURDEN HAS NOT BEEN SUSTAINED BY APPELLANT HERE. 
MOREOVER, BOTH THE RECORD IN THIS CASE AND FACTS SUBJECT TO THE COURT'S
NOTICE DEMONSTRATE THAT THE REGULATORY PROVISIONS ARE NOT ARBITRARY,
CAPRICIOUS, OR UNREASONABLE. 

THE CIRCUMSTANCES WARRANTING THE ESTABLISHING OF MINIMUM PRICES IN
THE COAL INDUSTRY WERE SUBSTANTIALLY THE SAME AS THOSE DESCRIBED BY
THIS COURT IN NEBBIA V. NEW YORK, 291 U.S. 502, WITH RESPECT TO THE
MILK INDUSTRY. 

THE PRICE-FIXING PROVISIONS CONTAIN MUCH MORE DETAILED STANDARDS THAN
THOSE PRESCRIBED FOR THE USE OF THE INTERSTATE COMMERCE COMMISSION AND
THE SECRETARY OF AGRICULTURE IN FIXING RATES UNDER THE INTERSTATE
COMMERCE ACT AND THE PACKERS AND STOCKYARDS ACT AND IN OTHER REGULATORY
STATUTES.  THE ARGUMENT THAT THERE IS AN INVALID DELEGATION OF
LEGISLATIVE POWER IS PLAINLY WITHOUT SUBSTANCE.  THE DEFINITION OF
"BITUMINOUS COAL" IN SEC. 17(B) CONSTITUTES A SATISFACTORY STANDARD,
WHICH IS NOT RENDERED INADEQUATE BECAUSE OF THE POSSIBLE EXISTENCE OF
BORDERLINE CASES WHERE ITS APPLICATION MAY BE DIFFICULT.  CF. SHIELDS
V. UTAH IDAHO CENTRAL R. CO., 305 U.S. 177. 

THE GRANT OF AUTHORITY TO THE COMMISSION TO DETERMINE THE QUESTION OF
FACT AS TO THE STATUS OF COAL UNDER THE ACT IS NOT AN INVALID
DELEGATION OF JUDICIAL POWER.  THE DECISION IS REVIEWABLE BY THE
COURTS.  CROWELL V. BENSON, 285 U.S. 22, IS NOT IN POINT; APPELLANT IS
ADMITTEDLY ENGAGED IN INTERSTATE COMMERCE, AND NO CONSTITUTIONAL RIGHTS
DEPEND UPON THE FACTUAL QUESTION HERE IN ISSUE.  CF. SHIELDS V. UTAH
IDAHO CENTRAL R. CO., 305 U.S. 177. 

MEMBERS ARE EXEMPT FROM THE 19 1/2% TAX.  IF THE TAX IS NOT APPLICABLE
TO NON-CODE MEMBERS, IT CANNOT APPLY TO ANY ONE.  BOTH THE LANGUAGE OF
THE STATUTE AND ITS LEGISLATIVE HISTORY SHOW THAT CONGRESS DID NOT
INTEND TO ACCOMPLISH ANY SUCH ABSURD RESULT. 

THE 19 1/2% TAX IS VALID REGARDLESS OF WHETHER IT IS A TAX OR A
PENALTY, INASMUCH AS THE REGULATORY PROVISIONS WHICH THE SECTION IS
AIMED TO EFFECTUATE ARE A LEGITIMATE EXERCISE OF THE COMMERCE POWER. 
THERE CAN BE NO QUESTION OF THE POWER OF CONGRESS TO IMPOSE PENALTIES
IN ORDER TO ENFORCE LAWS ENACTED UNDER ANY OF THE ENUMERATED POWERS. 

IF THE TAX BE A PENALTY, THERE CAN BE NO IMPROPER CLASSIFICATION IN
APPLYING IT ONLY TO THOSE WHO FAIL TO COMPLY WITH THE REGULATORY PLAN
WHICH IT IS DESIGNED TO ENFORCE.  FURTHERMORE, THE CHOICE OF WHETHER TO
SUBJECT ITSELF TO THE TAX OR THE REGULATORY SCHEME LAY ENTIRELY WITH
APPELLANT, AND APPELLANT CAN NOT COMPLAIN BECAUSE THE BURDEN OF THE TAX
NOW TURNS OUT TO BE GREATER THAN THAT OF THE SYSTEM OF REGULATION WHICH
IT COULD VOLUNTARILY HAVE ACCEPTED INSTEAD.  IN ANY EVENT, THE
DIFFERENTIATION BETWEEN CODE MEMBERS AND NON-CODE MEMBERS IS VALID AS A
MEANS OF EQUALIZING THE BURDENS IMPOSED UPON THE TWO GROUPS.  NEW YORK
RAPID TRANSIT CORP. V. NEW YORK, 303 U.S. 573, 580. 

THE DECISION IN SUNSHINE ANTHRACITE COAL CO. V. NATIONAL BITUMINOUS
COAL COMMISSION, 105 F.2D 559, IS CLEARLY RES JUDICATA WITH RESPECT TO
THE STATUS OF APPELLANT'S CASE.  ALTHOUGH THE NATIONAL BITUMINOUS COAL
COMMISSION AND THE COLLECTOR OF INTERNAL REVENUE MAY NOMINALLY BE
DIFFERENT PARTIES, THEY ARE IN LEGAL EFFECT THE SAME, BOTH REPRESENTING
THE UNITED STATES.  UNDER THE STATUTE THE COMMISSION DETERMINES THE
APPLICABILITY OF THE COAL ACT BOTH FOR REGULATORY AND TAX PURPOSES.  IT
IS SETTLED THAT THERE IS PRIVITY BETWEEN OFFICERS REPRESENTING THE SAME
GOVERNMENT, AND THAT ALTHOUGH A JUDGMENT ENTERED IN A CASE AGAINST A
COLLECTOR MAY NOT BE BINDING IN A SUIT AGAINST THE UNITED STATES, A
JUDGMENT IN AN ACTION AGAINST THE UNITED STATES OR ITS REPRESENTATIVE
IS CONCLUSIVE IN A SUIT AGAINST A COLLECTOR.  TAIT V. WESTERN MARYLAND
RY. CO., 289 U.S. 620. 

THE DISTRICT COURT ALSO WAS BARRED FROM DETERMINING THE STATUS OF
APPELLANT'S COAL BECAUSE OF THE EXISTENCE OF A COMPLETE ADMINISTRATIVE
AND STATUTORY REMEDY, THE ADEQUACY OF WHICH HAS BEEN DEMONSTRATED WITH
RESPECT TO APPELLANT ITSELF.  MOREOVER, THE POWER TO REVIEW THE ORDERS
OF THE COMMISSION IS VESTED BY THE ACT EXCLUSIVELY IN THE CIRCUIT
COURTS OF APPEALS (SEC. 6(B), (D)).  THIS STATUTORY LIMITATION UPON THE
JURISDICTION OF THE DISTRICT COURTS IS VALID.  ANNISTON MFG. CO. V.
DAVIS, 301 U.S. 337. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE LABOR PROVISIONS OF THE BITUMINOUS COAL CONSERVATION ACT OF
1935(49 STAT. 991) WERE HELD UNCONSTITUTIONAL BY THIS COURT IN CARTER
V. CARTER COAL CO., 298 U.S. 238.  THE BITUMINOUS COAL ACT OF 1937(50
STAT. 72) WAS THEREUPON ENACTED.  IT ELIMINATED THOSE PROVISIONS OF THE
EARLIER ACT AND MADE OTHER SUBSTANTIVE AND STRUCTURAL CHANGES.  FN1
THE BASIC PROBLEM HERE INVOLVED IS THE CONSTITUTIONALITY OF THE 1937
ACT. 

THAT ACT PROVIDES FOR THE REGULATION OF THE SALE AND DISTRIBUTION OF
BITUMINOUS COAL BY THE NATIONAL BITUMINOUS COAL COMMISSION,  FN2  WITH
THE COOPERATION OF THE BITUMINOUS COAL INDUSTRY.  ITS AIM IS THE
STABILIZATION OF THE INDUSTRY PRIMARILY THROUGH PRICE-FIXING AND THE
ELIMINATION OF UNFAIR COMPETITION.  IT IS PROVIDED IN SEC. 4 THAT THE
COAL PRODUCERS, ACCEPTING MEMBERSHIP, SHALL BE ORGANIZED UNDER THE
BITUMINOUS COAL CODE.  SOME TWENTY DISTRICT BOARDS OF CODE MEMBERS ARE
PROVIDED FOR, WHICH ARE TO OPERATE AS AN AID TO THE COMMISSION BUT
SUBJECT TO ITS PERVASIVE SURVEILLANCE AND AUTHORITY.  THE STATUTE
SPECIFIES IN DETAIL THE METHODS OF THEIR ORGANIZATION AND OPERATION,
THE SCOPE OF THEIR FUNCTIONS, AND THE JURISDICTION OF THE COMMISSION
OVER THEM.  THE COMMISSION IS EMPOWERED TO FIX MINIMUM PRICES FOR CODE
MEMBERS IN ACCORDANCE WITH STATED STANDARDS.  UNDER SEC. 4, IIA) EACH
BOARD SHALL "ON ITS OWN MOTION OR WHEN DIRECTED BY THE COMMISSION"
PROPOSE MINIMUM PRICES PURSUANT TO PRESCRIBED STATUTORY STANDARDS. 
THESE MAY BE APPROVED, DISAPPROVED, OR MODIFIED BY THE COMMISSION AS
THE BASIS FOR THE COORDINATION OF MINIMUM PRICES.  SOMEWHAT COMPARABLE
MACHINERY IS PROVIDED FOR SUCH COORDINATION OF MINIMUM PRICES "IN
COMMON CONSUMING MARKET AREAS UPON A FAIR COMPETITIVE BASIS," SEC. 4,
IIB), AND FOR ESTABLISHMENT OF RULES AND REGULATIONS INCIDENTAL TO THE
SALE AND DISTRIBUTION OF COAL BY CODE MEMBERS.  SEC. 4, IIA).  THE
COMMISSION IS ALSO GIVEN POWER BY SEC. 4, IIC) TO ESTABLISH MAXIMUM
PRICES FOR CODE MEMBERS PURSUANT TO STANDARDS PRESCRIBED THEREIN.  THE
SALE, DELIVERY, OR OFFER FOR SALE OF COAL BELOW THE MINIMUM OR ABOVE
THE MAXIMUM PRICES ESTABLISHED BY THE COMMISSION IS MADE A VIOLATION OF
THE CODE.  SEC. 4, IIE).  SO ARE NUMEROUS PRACTICES, SPECIFIED IN SEC.
4, III) AS UNFAIR METHODS OF COMPETITION.  AND CONTRACTS FOR THE SALE
OF COAL AT PRICES BELOW THE PRESCRIBED MINIMUM OR ABOVE THE MAXIMUM ARE
INVALID AND UNENFORCEABLE.  SEC. 4, IIE).  THE COMMISSION MAY, AFTER
HEARING, REVOKE THE CODE MEMBERSHIP OF ANY COAL PRODUCER FOR WILLFUL
VIOLATION OF THE CODE OR OF ANY REGULATION MADE THEREUNDER.  SEC.
5(B). 

SEC. 3(A) IMPOSES AN EXCISE TAX OF 1 CENT PER TON OF TWO THOUSAND
POUNDS UPON THE SALE OR OTHER DISPOSITION BY THE PRODUCER OF BITUMINOUS
COAL PRODUCED IN THE UNITED STATES.  FN3  SEC. 3(B) IMPOSES AN
ADDITIONAL 19 1/2% TAX (BASED ON SALE PRICE OR IN CERTAIN CASES ON FAIR
MARKET VALUE) ON SALES OF BITUMINOUS COAL BY PRODUCERS "WHICH WOULD BE
SUBJECT TO THE APPLICATION OF THE CONDITIONS AND PROVISIONS OF THE CODE
PROVIDED FOR IN SECTION 4, OR OF THE PROVISIONS OF SECTION 4-A."  FN4
PRODUCERS WHO ARE MEMBERS OF THE CODE ARE EXEMPT FROM THAT TAX.  AS WE
SHALL SEE, THE INTERPRETATION OF SEC. 3(B) IS A SUBJECT OF
CONTROVERSY.  BUT IF, AS THE GOVERNMENT CONTENDS, THE 19 1/2% TAX IS
APPLICABLE TO SALES BY NON-MEMBERS, THERE ARE STRONG INDUCEMENTS FOR
JOINING THE CODE. 

MACHINERY IS PROVIDED IN SEC. 4-A FOR OBTAINING EXEMPTIONS.  A
PRODUCER WHO BELIEVES THAT ANY COMMERCE IN COAL IS NOT, OR MAY NOT BE
MADE, SUBJECT TO THE PROVISIONS OF SEC. 4 MAY FILE AN APPLICATION FOR
EXEMPTION WITH THE COMMISSION.  SUBJECT TO QUALIFICATIONS NOT MATERIAL
HERE, THE FILING OF SUCH APPLICATION "IN GOOD FAITH" EXEMPTS THE
APPLICANT FROM ANY "OBLIGATION, DUTY OR LIABILITY" IMPOSED BY SEC. 4
PENDING ACTION BY THE COMMISSION ON THE APPLICATION.  THE COMMISSION
SHALL GRANT THE APPLICATION, OR, AFTER NOTICE AND OPPORTUNITY FOR
HEARING, SHALL DENY OR OTHERWISE DISPOSE OF IT.  AN APPLICANT AGGRIEVED
BY SUCH DENIAL OR OTHER DISPOSITION MAY OBTAIN A REVIEW OF THE ORDER IN
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA OR IN THE COURT OF
APPEALS IN THE CIRCUIT WHERE HE RESIDES OR HAS HIS PRINCIPAL PLACE OF
BUSINESS.  SEC. 6(B).  THE FINDINGS OF THE COMMISSION AS TO THE FACTS,
IF SUPPORTED BY SUBSTANTIAL EVIDENCE, ARE CONCLUSIVE. 

APPELLANT IS LESSEE OF COAL LANDS IN ARKANSAS AND IS ENGAGED IN THE
BUSINESS OF MINING AND SHIPPING COAL.  IT HAS NOT SUBSCRIBED TO OR
ACCEPTED THE PROVISIONS OF THE BITUMINOUS COAL CODE PROVIDED FOR IN
SEC. 4 OF THE ACT.  IN AUGUST 1937 IT FILED AN APPLICATION FOR
EXEMPTION ON THE GROUNDS THAT ITS COAL WAS NOT BITUMINOUS COAL AS
DEFINED IN SEC. 17(B) OF THE ACT.  FN5  THE COMMISSION HELD A PUBLIC
HEARING ON THAT APPLICATION IN OCTOBER 1937.  FN6  APPELLANT APPEARED,
INTRODUCED EVIDENCE, AND WAS HEARD ON ORAL ARGUMENT BEFORE THE
COMMISSION.  FN7  IN AUGUST 1938 THE COMMISSION HANDED DOWN AN OPINION
WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ENTERED AN ORDER
DENYING APPELLANT'S APPLICATION FOR EXEMPTION ON THE GROUNDS THAT ITS
COAL WAS BITUMINOUS WITHIN THE MEANING OF SEC. 17(B).  APPELLANT
OBTAINED A REVIEW OF THIS ORDER IN THE CIRCUIT COURT OF APPEALS.  THAT
COURT HELD THAT THE COMMISSION HAD JURISDICTION TO DETERMINE THE STATUS
OF COAL CLAIMED TO BE EXEMPT AND THAT THE COMMISSION'S DECISION WAS
BASED ON SUBSTANTIAL EVIDENCE.  IT ACCORDINGLY AFFIRMED THE ORDER. 
SUNSHINE ANTHRACITE COAL CO. V. NATIONAL BITUMINOUS COAL COMMISSION,
105 F.2D 559.  WE DENIED CERTIORARI.  308 U.S. 604.    IN MAY 1938,
WHILE THE ABOVE PROCEEDING WAS PENDING BEFORE THE COMMISSION, APPELLEE
DEMANDED THAT APPELLANT PAY THE TAXES, PENALTIES AND INTEREST ACCRUING
UNDER SEC. 3(B) OF THE ACT FOR THE PERIOD ENDING FEBRUARY 1938; AND
FILED A NOTICE OF TAX LIEN AGAINST APPELLANT'S PROPERTY.  THEREUPON
APPELLANT FILED ITS COMPLAINT IN THIS SUIT TO ENJOIN THE COLLECTION OF
THE TAX.  A THREE-JUDGE COURT WAS CONVENED, WHICH ISSUED A TEMPORARY
INJUNCTION.  APPARENTLY NO FURTHER ACTION WAS TAKEN IN THIS CASE UNTIL
AFTER THE DECISION OF THE CIRCUIT COURT OF APPEALS IN SUNSHINE
ANTHRACITE COAL CO. V. NATIONAL BITUMINOUS COAL COMMISSION, SUPRA, WHEN
APPELLEE FILED A SUPPLEMENTAL ANSWER STATING THAT THE DECISION IN THAT
CASE WAS RES JUDICATA AS TO THE STATUS OF APPELLANT'S COAL UNDER THE
ACT AND THAT THE DISTRICT COURT HAD NO JURISDICTION OVER THAT SUBJECT
MATTER.  THE COURT BELOW DENIED APPELLANT'S MOTION TO STRIKE THAT
PORTION OF THE ANSWER.  31 F.SUPP.  125.  THE CASE WAS TRIED.  THE
COURT HELD THE ACT TO BE CONSTITUTIONAL AND DISMISSED THE BILL ON THE
MERITS.  FN8  THE CASE IS HERE ON APPEAL (50 STAT. 752; 28 U.S.C. SEC.
380A). 

I. APPELLANT ARGUES THAT IT IS NOT SUBJECT TO THE 19 1/2% TAX IMPOSED
BY SEC. 3(B) BECAUSE THAT SECTION DOES NOT APPLY TO PRODUCERS WHO ARE
NOT MEMBERS OF THE CODE.  ITS ARGUMENT RESTS ON THE CONSTRUCTION OF
SEC. 3(B) AND SEC. 4.  AS WE HAVE SEEN, THE FORMER PLACES THE 19 1/2%
TAX ON THE SALE OR OTHER DISPOSITION OF COAL "WHICH WOULD BE SUBJECT TO
THE APPLICATION OF THE CONDITIONS AND PROVISIONS OF THE CODE PROVIDED
FOR IN SECTION 4, OR OF THE PROVISIONS OF SECTION 4-A."  SEC. 4
PROVIDES THAT THE "PROVISIONS OF SUCH CODE SHALL APPLY ONLY TO SUCH
CODE MEMBERS."  APPELLANT THEREFORE CONTENDS THAT THE TAX IS NOT
APPLICABLE TO ITS COAL, SINCE THE COAL PRODUCED BY A NON-CODE PRODUCER
SUCH AS APPELLANT IS NOT SUBJECT TO THE PROVISIONS OF THE CODE. 

BUT IF THE 19 1/2% TAX IS NOT APPLICABLE TO NON-CODE MEMBERS, IT IS
NOT APPLICABLE TO ANYONE SINCE SEC. 3(B) EXEMPTS CODE MEMBERS FROM THAT
TAX.  THAT CONSTRUCTION WOULD READ THE 19 1/2% TAX OUT OF THE ACT.  THE
ESSENTIAL SANCTION OF THE ACT WOULD THEN DISAPPEAR AND ITS
EFFECTIVENESS WOULD BE SERIOUSLY IMPAIRED.  THAT ALTERNATIVE WILL NOT
BE TAKEN WHERE A CONSTRUCTION IS POSSIBLE WHICH WILL PRESERVE THE
VITALITY OF THE ACT AND THE UTILITY OF THE LANGUAGE IN QUESTION.  SEE
ARMSTRONG PAINT & VARNISH WORKS V. NU-ENAMEL CORP., 305 U.S. 315, 333
AND CASES CITED.  ONLY A HIGHLY STRAINED CONSTRUCTION OF SEC. 3(B)
WOULD LEAD TO THE CONCLUSION THAT NON-CODE MEMBERS ARE EXEMPT FROM THE
19 1/2% TAX.  IT SEEMS THAT CONGRESS MADE A DELIBERATE CHOICE OF WORDS
WHEN IT SAID THAT THE TAX APPLIED TO THE SALE OR OTHER DISPOSITION OF
COAL WHICH "WOULD BE" SUBJECT TO SEC. 4 AND SEC. 4-A.  SEC. 4 IS MADE
EXPRESSLY APPLICABLE "ONLY TO MATTERS AND TRANSACTIONS IN OR DIRECTLY
AFFECTING INTERSTATE COMMERCE IN BITUMINOUS COAL."  HENCE IT SEEMS
PLAIN THAT THE TAX WAS INTENDED TO APPLY ONLY TO THOSE SALES BY NON
CODE MEMBERS WHICH "WOULD BE" SUBJECT TO REGULATION UNDER SEC. 4. 
APPELLANT'S COAL PLAINLY FALLS IN THAT CLASS SINCE PRACTICALLY ITS
ENTIRE OUTPUT IS SOLD TO PURCHASERS OUTSIDE THE STATE OF ARKANSAS.  TO
SUSTAIN APPELLANT'S POSITION WE WOULD NOT ONLY HAVE TO SUBSTITUTE "IS"
FOR "WOULD BE"; WE WOULD HAVE TO OVERRIDE THE EXPRESS CONGRESSIONAL
PLAN TO MAKE THE 19 1/2% TAX "IN AID OF THE REGULATION OF INTERSTATE
COMMERCE" IN BITUMINOUS COAL.  FN9  THAT WOULD BE NOT ONLY TO REWRITE
SEC. 3(B) BUT TO REMAKE THE WHOLE STATUTORY SCHEME.  OBVIOUSLY SUCH A
TASK IS NOT FOR THE COURTS. 

II.  APPELLANT CHALLENGES THE CONSTITUTIONALITY OF THE ACT ON THE
GROUNDS THAT THE 19 1/2% TAX IS NOT A TAX BUT A PENALTY, THAT CONGRESS
LACKS THE POWER TO FIX MINIMUM PRICES FOR BITUMINOUS COAL SOLD IN
INTERSTATE COMMERCE, THAT THERE HAS BEEN AN INVALID DELEGATION OF
LEGISLATIVE AND JUDICIAL POWER, AND THAT THE DIVISION OF BITUMINOUS
COAL INTO CODE AND NON-CODE CLASSES IS IMPROPER. 

CLEARLY THIS TAX IS NOT DESIGNED MERELY FOR REVENUE PURPOSES.  IN
PURPOSE AND EFFECT IT IS PRIMARILY A SANCTION TO ENFORCE THE REGULATORY
PROVISIONS OF THE ACT.  BUT THAT DOES NOT MEAN THAT THE STATUTE IS
INVALID AND THE TAX UNENFORCEABLE.  CONGRESS MAY IMPOSE PENALTIES IN
AID OF THE EXERCISE OF ANY OF ITS ENUMERATED POWERS.  THE POWER OF
TAXATION, GRANTED TO CONGRESS BY THE CONSTITUTION, MAY BE UTILIZED AS A
SANCTION FOR THE EXERCISE OF ANOTHER POWER WHICH IS GRANTED IT.  HEAD
MONEY CASES, 112 U.S. 580, 596.  AND SEE SONZINSKY V. UNITED STATES,
300 U.S. 506.  IT IS SO UTILIZED HERE. 

THE REGULATORY PROVISIONS ARE CLEARLY WITHIN THE POWER OF CONGRESS
UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION.  THESE PROVISIONS ARE
APPLICABLE ONLY TO SALES OR TRANSACTIONS IN, OR DIRECTLY OR INTIMATELY
AFFECTING, INTERSTATE COMMERCE.  THE FIXING OF PRICES, THE PROSCRIPTION
OF UNFAIR TRADE PRACTICES, THE ESTABLISHMENT OF MARKETING RULES
RESPECTING SUCH SALES OF BITUMINOUS COAL CONSTITUTE REGULATIONS WITHIN
THE COMPETENCE OF CONGRESS UNDER THE COMMERCE CLAUSE.  AS STATED BY MR.
JUSTICE CARDOZO IN HIS DISSENT IN CARTER V. CARTER COAL CO., SUPRA, P.
326, "TO REGULATE THE PRICE FOR SUCH TRANSACTIONS IS TO REGULATE
COMMERCE ITSELF, AND NOT ALONE ITS ANTECEDENT CONDITIONS OR ITS
ULTIMATE CONSEQUENCES."  SEE TAGG BROS. & MOORHEAD V. UNITED STATES,
280 U.S. 420.  WHAT IS TRUE OF PRICES IS TRUE OF THE ATTACHMENT OF
OTHER CONDITIONS TO THE FLOW OF A COMMODITY IN INTERSTATE CHANNELS. 
MULFORD V. SMITH, 307 U.S. 38 AND CASES CITED.  SINCE THIS POWER WHEN
IT EXISTS IS COMPLETE IN ITSELF, GIBBONS V. OGDEN, 9 WHEAT.  1, 196,
THERE CAN BE NO QUESTION BUT THAT THE PROVISIONS OF THIS ACT ARE AN
EXERTION OF THE PARAMOUNT FEDERAL POWER OVER INTERSTATE COMMERCE.  SEE
UNITED STATES V. ROCK ROYAL CO-OPERATIVE, 307 U.S. 533. 

NOR DOES THE ACT VIOLATE THE FIFTH AMENDMENT.  PRICE CONTROL IS ONE
OF THE MEANS AVAILABLE TO THE STATES (NEBBIA V. NEW YORK, 291 U.S. 502
AND TO THE CONGRESS (UNITED STATES V. ROCK ROYAL CO-OPERATIVE, SUPRA)
IN THEIR RESPECTIVE DOMAINS (BALDWIN V. G.A.F. SEELIG, INC., 294 U.S.
511) FOR THE PROTECTION AND PROMOTION OF THE WELFARE OF THE ECONOMY. 
BUT APPELLANT CLAIMS THAT THIS ACT IS NOT AN APPROPRIATE EXERCISE OF
THE CONGRESSIONAL POWER.  IT URGES THAT THE NATURE AND USE OF
BITUMINOUS COAL IN NOWISE ENDANGER THE HEALTH AND MORALS OF THE
POPULACE; THAT NO QUESTION OF CONSERVATION IS INVOLVED; THAT THE ILLS
OF THE INDUSTRY ARE ATTRIBUTABLE TO OVERPRODUCTION; THAT THE INCREASE
OF PRICES WILL CAUSE A FURTHER LOSS OF MARKETS AND ADD TO THE
AFFLICTIONS WHICH BESET THE INDUSTRY; AND THAT THE CONSUMING PUBLIC
WILL BE DEPRIVED OF THE WHOLESOME RESTRICTION OF THE ANTI-TRUST LAWS. 
THOSE MATTERS, HOWEVER, RELATE TO QUESTIONS OF POLICY, TO THE WISDOM OF
THE LEGISLATION, AND TO THE APPROPRIATENESS OF THE REMEDY CHOSEN -
MATTERS WHICH ARE NOT OUR CONCERN.  IF WE ENDEAVORED TO APPRAISE THEM
WE WOULD BE TRESPASSING ON THE LEGISLATIVE DOMAIN.  AND IF WE UNDERTOOK
TO NARROW THE SCOPE OF FEDERAL INTERVENTION IN THIS FIELD, AS SUGGESTED
BY APPELLANT, WE WOULD BE BLIND TO AT LEAST THIRTY YEARS OF HISTORY. 
FOR A GENERATION THERE HAVE BEEN VARIOUS MANIFESTATIONS OF INCESSANT
DEMAND FOR FEDERAL INTERVENTION IN THE COAL INDUSTRY.  FN10  THE
INVESTIGATIONS PRECEDING THE 1935 AND 1937 ACTS ARE REPLETE WITH AN
EXPOSITION OF THE CONDITIONS WHICH HAVE BESET THAT INDUSTRY.  FN11
OFFICIAL  FN12  AND PRIVATE  FN13  RECORDS GIVE ELOQUENT TESTIMONY TO
THE STATEMENT OF MR. JUSTICE CARDOZO IN THE CARTER CASE (P. 330) THAT
FREE COMPETITION HAD BEEN "DEGRADED INTO ANARCHY" IN THE BITUMINOUS
COAL INDUSTRY.  OVERPRODUCTION AND SAVAGE, COMPETITIVE WARFARE WASTED
THE INDUSTRY.  LABOR AND CAPITAL ALIKE WERE THE VICTIMS.  FINANCIAL
DISTRESS AMONG OPERATORS AND ACUTE POVERTY AMONG MINERS PREVAILED EVEN
DURING PERIODS OF GENERAL PROSPERITY.  THIS HISTORY OF THE BITUMINOUS
COAL INDUSTRY IS WRITTEN IN BLOOD AS WELL AS IN INK. 

IT WAS THE JUDGMENT OF CONGRESS THAT PRICE-FIXING AND THE ELIMINATION
OF UNFAIR COMPETITIVE PRACTICES WERE APPROPRIATE METHODS FOR PREVENTION
OF THE FINANCIAL RUIN, LOW WAGES, POOR WORKING CONDITIONS, STRIKES, AND
DISRUPTION OF THE CHANNELS OF TRADE WHICH FOLLOWED IN THE WAKE OF THE
DEMORALIZED PRICE STRUCTURES IN THIS INDUSTRY.  IF THE STRATEGIC
CHARACTER OF THIS INDUSTRY IN OUR ECONOMY AND THE CHAOTIC CONDITIONS
WHICH HAVE PREVAILED IN IT DO NOT JUSTIFY LEGISLATION, IT IS DIFFICULT
TO IMAGINE WHAT WOULD.  TO INVALIDATE THIS ACT WE WOULD HAVE TO DENY
THE EXISTENCE OF POWER ON THE PART OF CONGRESS UNDER THE COMMERCE
CLAUSE TO DEAL DIRECTLY AND SPECIFICALLY WITH THOSE FORCES WHICH IN ITS
JUDGMENT SHOULD NOT BE PERMITTED TO DISLOCATE AN IMPORTANT SEGMENT OF
OUR ECONOMY AND TO DISRUPT AND BURDEN INTERSTATE CHANNELS OF TRADE. 
THAT STEP COULD NOT BE TAKEN WITHOUT PLAIN DISREGARD OF THE
CONSTITUTION.  THERE ARE LIMITS ON THE POWERS OF THE STATES TO ACT AS
RESPECTS THESE INTERSTATE INDUSTRIES.  BALDWIN V. G.A.F. SEELIG, INC.,
SUPRA.  IF THE INDUSTRY ACTING ON ITS OWN HAD ENDEAVORED TO STABILIZE
THE MARKETS THROUGH PRICE-FIXING AGREEMENTS, IT WOULD HAVE RUN AFOUL OF
THE SHERMAN ACT.  UNITED STATES V. SOCONY-VACUUM OIL CO., ANTE, P.
150.  BUT THAT DOES NOT MEAN THAT THERE IS A NO MAN'S LAND BETWEEN THE
STATE AND FEDERAL DOMAINS.  CERTAINLY WHAT CONGRESS HAS FORBIDDEN BY
THE SHERMAN ACT IT CAN MODIFY.  IT MAY DO SO, BY PLACING THE MACHINERY
OF PRICE-FIXING IN THE HANDS OF PUBLIC AGENCIES.  IT MAY SINGLE OUT FOR
SEPARATE TREATMENT, AS IT HAS DONE ON VARIOUS OCCASIONS,  FN14  A
PARTICULAR INDUSTRY AND THEREBY REMOVE THE PENALTIES OF THE SHERMAN ACT
AS RESPECTS IT.  CONGRESS UNDER THE COMMERCE CLAUSE IS NOT IMPOTENT TO
DEAL WITH WHAT IT MAY CONSIDER TO BE DIRE CONSEQUENCES OF LAISSEZ
FAIRE.  IT IS NOT POWERLESS TO TAKE STEPS IN MITIGATION OF WHAT IN ITS
JUDGMENT ARE ABUSES OF CUT-THROAT COMPETITION.  AND IT IS NOT LIMITED
IN ITS CHOICE BETWEEN UNRESTRAINED SELF-REGULATION ON THE ONE HAND AND
RIGID PROHIBITIONS ON THE OTHER.  THE COMMERCE CLAUSE EMPOWERS IT TO
UNDERTAKE STABILIZATION OF AN INTERSTATE INDUSTRY THROUGH A PROCESS OF
PRICE-FIXING WHICH SAFEGUARDS THE PUBLIC INTEREST BY PLACING PRICE
CONTROL IN THE HANDS OF ITS ADMINISTRATIVE REPRESENTATIVE.  UNITED
STATES V. ROCK ROYAL CO-OPERATIVE, SUPRA.  THAT WAS THE CHOICE WHICH
CONGRESS MADE HERE.  THERE IS NOTHING IN THE CARTER CASE WHICH STANDS
IN THE WAY.  THE MAJORITY OF THE COURT IN THAT CASE DID NOT PASS ON THE
PRICE-FIXING FEATURES OF THE EARLIER ACT.  THE CHIEF JUSTICE AND MR.
JUSTICE CARDOZO IN SEPARATE MINORITY OPINIONS EXPRESSED THE VIEW THAT
THE PRICE-FIXING FEATURES OF THE EARLIER ACT WERE CONSTITUTIONAL.  WE
REST ON THEIR CONCLUSIONS FOR SUSTAINING THE PRESENT ACT. 

NOR DOES THE ACT CONTAIN AN INVALID DELEGATION OF LEGISLATIVE POWER. 
UNDER SEC. 4, IIC) THE COMMISSION MAY FIX MAXIMUM PRICES WHEN IN THE
PUBLIC INTEREST IT DEEMS IT NECESSARY IN ORDER TO PROTECT THE CONSUMER
AGAINST UNREASONABLY HIGH PRICES.  THESE MAXIMUM PRICES MUST BE FIXED
AT A UNIFORM INCREASE ABOVE MINIMUM PRICES SO THAT IN THE AGGREGATE
THEY WILL YIELD A REASONABLE RETURN ABOVE THE WEIGHTED AVERAGE TOTAL
COST OF THE DISTRICT.  AND NO MAXIMUM PRICE SHALL BE ESTABLISHED FOR
ANY MINE WHICH WILL NOT YIELD A FAIR RETURN ON THE FAIR VALUE OF THE
PROPERTY.  THE MINIMUM PRICES TO BE FIXED MUST CONFORM TO THE FOLLOWING
STANDARDS:  THE WEIGHTED AVERAGE COST FOR EACH MINIMUM PRICE AREA MUST
BE COMPUTED, THE ELEMENTS OF COST BEING DEFINED; A CLASSIFICATION OF
THE VARIOUS SIZES AND GRADES OF COAL SHALL BE MADE WHICH REFLECTS AS
NEARLY AS POSSIBLE THE RELATIVE MARKET VALUE OF THE VARIOUS KINDS,
QUALITIES, AND SIZES OF COAL, WHICH IS JUST AND EQUITABLE AS BETWEEN
PRODUCERS WITHIN THE DISTRICT AND WHICH HAS DUE REGARD TO THE INTERESTS
OF THE CONSUMING PUBLIC; AND COORDINATED MINIMUM PRICES SHALL BE
ESTABLISHED FOR SUCH COAL (A) WHICH REFLECT AS NEARLY AS POSSIBLE THE
RELATIVE MARKET VALUES AT POINTS OF DELIVERY TAKING INTO ACCOUNT
SPECIFICALLY ENUMERATED FACTORS, (B) WHICH PRESERVE AS NEARLY AS MAY BE
EXISTING FAIR COMPETITIVE OPPORTUNITIES, (C) WHICH ARE JUST AND
EQUITABLE AS BETWEEN THE DISTRICTS, AND (D) WHICH, CONSISTENTLY WITH
THE PROCESS OF COORDINATION, YIELD A RETURN TO EACH AREA APPROXIMATING
ITS WEIGHTED AVERAGE COST PER TON. 

THE PROBLEM OF FIXING REASONABLE PRICES FOR BITUMINOUS COAL CANNOT BE
DIFFERENTIATED LEGALLY FROM THE TASK OF FIXING RATES UNDER THE
INTERSTATE COMMERCE ACT (41 STAT. 484, 49 U.S.C. SEC. 15) AND THE
PACKERS AND STOCKYARDS ACT (42 STAT. 166, 7 U.S.C. SEC. 211).  THE
LATTER PROVIDE THE STANDARD OF "JUST AND REASONABLE" TO GUIDE THE
ADMINISTRATIVE BODY IN THE RATE-MAKING PROCESS.  THE VALIDITY OF THAT
STANDARD (TAGG BROS. & MOORHEAD V. UNITED STATES, SUPRA), THE
APPROPRIATENESS OF THE CRITERION OF THE "PUBLIC INTEREST" IN VARIOUS
CONTEXTS (NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S.
12, 24; UNITED STATES V. CHEMICAL FOUNDATION, 272 U.S. 1; AVENT V.
UNITED STATES, 266 U.S. 127), THE LEGALITY OF THE STANDARD OF
"UNREASONABLE OBSTRUCTION" TO NAVIGATION (UNION BRIDGE CO. V. UNITED
STATES, 204 U.S. 364) ALL MAKE IT CLEAR THAT THERE IS A VALID
DELEGATION OF AUTHORITY IN THIS CASE.  THE STANDARDS WHICH CONGRESS HAS
PROVIDED HERE FAR EXCEED IN SPECIFICITY OTHERS WHICH HAVE BEEN
SUSTAINED.  CERTAINLY IN THE HANDS OF EXPERTS THE CRITERIA WHICH
CONGRESS HAS SUPPLIED ARE WHOLLY ADEQUATE FOR CARRYING OUT THE GENERAL
POLICY AND PURPOSE OF THE ACT.  TO REQUIRE MORE WOULD BE TO INSIST ON A
DEGREE OF EXACTITUDE WHICH NOT ONLY LACKS LEGAL NECESSITY BUT WHICH
DOES NOT COMPORT WITH THE REQUIREMENTS OF THE ADMINISTRATIVE PROCESS. 
DELEGATION BY CONGRESS HAS LONG BEEN RECOGNIZED AS NECESSARY IN ORDER
THAT THE EXERTION OF LEGISLATIVE POWER DOES NOT BECOME A FUTILITY. 
CURRIN V. WALLACE, 306 U.S. 1, 15 AND CASES CITED.  BUT THE
EFFECTIVENESS OF BOTH THE LEGISLATIVE AND ADMINISTRATIVE PROCESSES
WOULD BECOME ENDANGERED IF CONGRESS WERE UNDER THE CONSTITUTIONAL
COMPULSION OF FILLING IN THE DETAILS BEYOND THE LIBERAL PRESCRIPTION
HERE.  THEN THE BURDENS OF MINUTIAE WOULD BE APT TO CLOG THE
ADMINISTRATION OF THE LAW AND DEPRIVE THE AGENCY OF THAT FLEXIBILITY
AND DISPATCH WHICH ARE ITS SALIENT VIRTUES.  FOR THESE REASONS WE HOLD
THAT THE STANDARDS WITH WHICH CONGRESS HAS SUPPLIED THE COMMISSION ARE
PLAINLY VALID.  UNITED STATES V. ROCK ROYAL CO-OPERATIVE, SUPRA. 

NOR HAS CONGRESS DELEGATED ITS LEGISLATIVE AUTHORITY TO THE
INDUSTRY.  THE MEMBERS OF THE CODE FUNCTION SUBORDINATELY TO THE
COMMISSION.  IT, NOT THE CODE AUTHORITIES, DETERMINES THE PRICES.  AND
IT HAS AUTHORITY AND SURVEILLANCE OVER THE ACTIVITIES OF THESE
AUTHORITIES.  SINCE LAW-MAKING IS NOT ENTRUSTED TO THE INDUSTRY, THIS
STATUTORY SCHEME IS UNQUESTIONABLY VALID.  CURRIN V. WALLACE, SUPRA,
AND CASES CITED. 

BUT APPELLANT MAINTAINS THAT THE DELEGATION OF AUTHORITY TO THE
COMMISSION TO DETERMINE WHAT COAL IS SUBJECT TO THE ACT IS UNLAWFUL
BECAUSE OF UNCERTAINTY IN THE STATUTORY DEFINITION OF BITUMINOUS COAL. 
SEC. 17(B) DEFINES THE TERM "BITUMINOUS COAL" AS FOLLOWS: 

"THE TERM 'BITUMINOUS COAL' INCLUDES ALL BITUMINOUS, SEMIBITUMINOUS,
AND SUBBITUMINOUS COAL AND SHALL EXCLUDE LIGNITE, WHICH IS DEFINED AS A
LIGNITIC COAL HAVING CALORIFIC VALUE IN BRITISH THERMAL UNITS OF LESS
THAN SEVEN THOUSAND SIX HUNDRED PER POUND AND HAVING A NATURAL MOISTURE
CONTENT IN PLACE IN THE MINE OF 30 PER CENTUM OR MORE." 

AS IN THE CASE OF THE TERM "INTERURBAN" ELECTRIC RAILWAY IN THE
RAILWAY LABOR ACT (SHIELDS V. UTAH IDAHO CENTRAL R. CO., 305 U.S. 177)
WE THINK THE DEFINITION OF BITUMINOUS COAL IS WHOLLY ADEQUATE AS A
STANDARD FOR ADMINISTRATIVE ACTION.  THE FACT THAT IT IS NOT A
CHEMIST'S OR AN ENGINEER'S DEFINITION IS NOT FATAL.  THE DEFINITION IS
NOT DEVOID OF MEANING.  WE ARE UNABLE TO SAY THAT IT CANNOT BE APPLIED
SO AS TO DELINEATE THE AREAS IN WHICH CONGRESS INTENDED TO MAKE THIS
SYSTEM OF CONTROL EFFECTIVE.  THE FACT THAT MANY INSTANCES MAY OCCUR
WHERE ITS APPLICATION MAY BE DIFFICULT IS MERELY TO EMPHASIZE THE
NATURE OF THE ADMINISTRATIVE PROBLEM AND THE REASON FOR THE GRANT OF
LATITUDE BY THE CONGRESS.  THE DIFFICULTY OR IMPOSSIBILITY OF DRAWING A
STATUTORY LINE IS ONE OF THE REASONS FOR SUPPLYING MERELY A STATUTORY
GUIDE.  CF. PIEDMONT & NORTHERN RY. CO. V. INTERSTATE COMMERCE
COMMISSION, 286 U.S. 299, 312.  THAT GUIDE IS SUFFICIENTLY PRECISE FOR
AN INTELLIGENT DETERMINATION OF THE ULTIMATE QUESTIONS OF FACT BY
EXPERTS. 

NOR IS THERE AN INVALID DELEGATION OF JUDICIAL POWER.  TO HOLD THAT
THERE WAS WOULD BE TO TURN BACK THE CLOCK ON AT LEAST A HALF CENTURY OF
ADMINISTRATIVE LAW.  THE QUESTION OF WHETHER OR NOT APPELLANT SHOULD BE
SUBJECTED TO THE REGULATORY PROVISIONS OF THE BITUMINOUS COAL ACT WAS
ONE WHICH THE CONGRESS COULD DECIDE IN THE EXERCISE OF ITS POWERS UNDER
THE COMMERCE CLAUSE.  IN LIEU OF MAKING THAT DECISION ITSELF, IT COULD
BRING TO ITS AID THE SERVICES OF AN ADMINISTRATIVE AGENCY.  AND IT
COULD DELEGATE TO THAT AGENCY THE DETERMINATION OF THE QUESTION OF FACT
WHETHER A PARTICULAR COAL PRODUCER FELL WITHIN THE ACT.  SHIELDS V.
UTAH IDAHO CENTRAL R. CO., SUPRA, P. 180.  THE FACT THAT SUCH
DETERMINATION INVOLVED AN INTERPRETATION OF THE TERM "BITUMINOUS COAL"
IS OF NO MORE SIGNIFICANCE HERE THAN WAS THE FACT THAT IN THE SHIELDS
CASE A DECISION BY THE INTERSTATE COMMERCE COMMISSION OF WHAT
CONSTITUTED AN "INTERURBAN" ELECTRIC RAILWAY WAS NECESSARY FOR THE
ULTIMATE FINDING AS TO THE APPLICABILITY OF THE RAILWAY LABOR ACT TO
CARRIERS.  THAT PROBLEM INVOLVES NO MORE THAN THE ADEQUACY OF THE
STANDARD GOVERNING THE EXERCISE OF THE DELEGATED AUTHORITY. 
FURTHERMORE, ON THIS PHASE OF THE CASE, APPELLANT HAS RECEIVED ALL THE
JUDICIAL REVIEW TO WHICH IT IS ENTITLED.  AS WE HAVE SEEN, IT OBTAINED
A REVIEW UNDER SEC. 6(B) OF THE COMMISSION'S DENIAL OF ITS APPLICATION
FOR EXEMPTION.  THE FUNCTIONS OF THE COURTS CEASE WHEN IT IS
ASCERTAINED THAT THE FINDINGS OF THE COMMISSION MEET THE STATUTORY
TEST.  ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 146. 

APPELLANT CONTENDS THAT THE STATUTORY CLASSIFICATION OF COAL INTO
CODE AND NON-CODE CLASSES AND THE APPLICATION OF THE 19 1/2% TAX TO THE
LATTER ARE IMPROPER UNDER THE FIFTH AMENDMENT.  ITS OBJECTION IS NOT
PREMISED ON LACK OF DUE PROCESS.  NOR COULD IT BE IN VIEW OF THE
ELABORATE MACHINERY AND PROCEDURE FOR THE ACT'S ENFORCEMENT WHICH THE
CONGRESS HAS PROVIDED.  RATHER APPELLANT'S OBJECTION IS FOUNDED ON ITS
CLAIM OF DISCRIMINATION.  BUT THE FIFTH AMENDMENT, UNLIKE THE
FOURTEENTH, HAS NO EQUAL PROTECTION CLAUSE.  STEWARD MACHINE CO. V.
DAVIS, 301 U.S. 548, 584 AND CASES CITED.  AND THERE IS "NO REQUIREMENT
OF UNIFORMITY IN CONNECTION WITH THE COMMERCE POWER."  CURRIN V.
WALLACE, SUPRA, P. 14.  THE LACK OF SIMILARITY IN TREATMENT OF THE TWO
CLASSES OF COAL IS AN INTEGRAL AND ESSENTIAL FEATURE OF THIS ACT.  AS
WE HAVE SAID, IT IS THROUGH THAT DEVICE THAT CONGRESS SOUGHT TO OBTAIN
AN EFFECTIVE SANCTION FOR THE ACT'S ENFORCEMENT.  COERCION IS THE VERY
ESSENCE OF ANY PENALTY EXACTED FOR FAILURE OF SUBMISSION.  "IT IS OF
THE ESSENCE OF THE PLENARY POWER CONFERRED" BY THE COMMERCE CLAUSE
"THAT CONGRESS MAY EXERCISE ITS DISCRETION IN THE USE OF THE POWER." 
CURRIN V. WALLACE, SUPRA, P. 14.  A PART OF THAT DISCRETION IS THE
SELECTION OF THE SANCTION FOR THE LAW'S ENFORCEMENT.  DISCRIMINATION
CONSTITUTIONALLY MAY BE THE PRICE OF NON-COMPLIANCE.  "INQUIRY INTO THE
HIDDEN MOTIVES WHICH MAY MOVE CONGRESS TO EXERCISE A POWER
CONSTITUTIONALLY CONFERRED UPON IT IS BEYOND THE COMPETENCY OF
COURTS."  SONZINSKY V. UNITED STATES, SUPRA, PP. 513-514.  AND SEE
MULFORD V. SMITH, SUPRA, P. 48. 

III.  APPELLANT CONTENDS HERE, AS IT DID BELOW, THAT SUNSHINE
ANTHRACITE COAL CO. V. NATIONAL BITUMINOUS COAL COMMISSION, SUPRA, IS
NOT DETERMINATIVE OF THE PRESENT ISSUES SINCE THAT CASE DID NOT INVOLVE
THE ASSESSMENT OF TAXES AND SINCE THE COMMISSION HAD NO AUTHORITY TO
DETERMINE THE STATUS OF APPELLANT'S COAL. 

THESE CONTENTIONS ARE UNTENABLE.  IN THE FIRST PLACE, THE
COMMISSIONER OF INTERNAL REVENUE IS MERELY THE AGENCY TO COLLECT TAXES
LEVIED UNDER THE ACT; HE IS NOT THE ADMINISTRATIVE AGENT WHOM CONGRESS
HAS DESIGNATED TO DETERMINE WHAT COAL IS EXEMPT FROM THE 19 1/2% TAX. 
THAT FUNCTION IS ENTRUSTED TO THE COMMISSION.  BY THE TERMS OF SEC. 4-A
IT IS THE COMMISSION WHICH DETERMINES WHETHER AN APPLICATION FOR
EXEMPTION SHOULD BE GRANTED OR DENIED.  BY THE PROVISIONS OF SEC. 3(B)
IT IS THE COMMISSION WHICH CERTIFIES TO THE COMMISSIONER THOSE WHO ARE
CODE MEMBERS AND CONSEQUENTLY EXEMPT FROM THE 19 1/2% TAX.  HENCE THE
COMMISSION DETERMINES THE SCOPE OF THE PROVISIONS OF THE ACT AND THEIR
APPLICABILITY TO VARIOUS PRODUCERS.  THE COMMISSIONER IS GIVEN NO
ADMINISTRATIVE FUNCTIONS WHATSOEVER EXCEPT TAX COLLECTION.  IN THE
SECOND PLACE, THE UNDERLYING ISSUE IN EACH OF THESE TWO SUITS IS THE
SAME.  IN SUNSHINE ANTHRACITE COAL CO. V. NATIONAL BITUMINOUS COAL
COMMISSION, SUPRA, THE QUESTION WAS WHETHER OR NOT APPELLANT'S COAL WAS
"BITUMINOUS" WITHIN THE MEANING OF SEC. 17(B).  WHEN THAT ISSUE WAS
DECIDED ADVERSELY TO APPELLANT, LIABILITY FOR THE 19 1/2% TAX FOLLOWED
UNLESS APPELLANT JOINED THE CODE, IN WHICH EVENT IT WOULD BE ENTITLED
TO A CERTIFICATE FROM THE COMMISSION EVIDENCING ITS TAX EXEMPTION.  IN
THE PRESENT SUIT, APPELLANT IS SEEKING TO RAISE THE IDENTICAL ISSUE,
SINCE ITS PURPOSE IS TO ENJOIN COLLECTION OF THE SELF-SAME TAX. 

THE RESULT IS CLEAR.  WHERE THE ISSUES IN SEPARATE SUITS ARE THE
SAME, THE FACT THAT THE PARTIES ARE NOT PRECISELY IDENTICAL IS NOT
NECESSARILY FATAL.  AS STATED IN CHICAGO, R.I. & P. RY. CO. V.
SCHENDEL, 270 U.S. 611, 620, "IDENTITY OF PARTIES IS NOT A MERE MATTER
OF FORM, BUT OF SUBSTANCE.  PARTIES NOMINALLY THE SAME MAY BE, IN LEGAL
EFFECT, DIFFERENT,  ...  AND PARTIES NOMINALLY DIFFERENT MAY BE, IN
LEGAL EFFECT, THE SAME."  A JUDGMENT IS RES JUDICATA IN A SECOND ACTION
UPON THE SAME CLAIM BETWEEN THE SAME PARTIES OR THOSE IN PRIVITY WITH
THEM.  CROMWELL V. COUNTY OF SAC, 94 U.S. 351.  THERE IS PRIVITY
BETWEEN OFFICERS OF THE SAME GOVERNMENT SO THAT A JUDGMENT IN A SUIT
BETWEEN A PARTY AND A REPRESENTATIVE OF THE UNITED STATES IS RES
JUDICATA IN RELITIGATION OF THE SAME ISSUE BETWEEN THAT PARTY AND
ANOTHER OFFICER OF THE GOVERNMENT.  SEE TAIT V. WESTERN MARYLAND RY.
CO., 289 U.S. 620.  THE CRUCIAL POINT IS WHETHER OR NOT IN THE EARLIER
LITIGATION THE REPRESENTATIVE OF THE UNITED STATES HAD AUTHORITY TO
REPRESENT ITS INTERESTS IN A FINAL ADJUDICATION OF THE ISSUE IN
CONTROVERSY.  CF. GUNTER V. ATLANTIC COAST LINE R. CO., 200 U.S. 273,
284-289.  CASES HOLDING THAT A JUDGMENT IN A SUIT AGAINST A COLLECTOR
FOR UNLAWFUL EXACTION IS NOT A BAR TO A SUBSEQUENT SUIT BY OR AGAINST
THE COMMISSIONER OR THE UNITED STATES (SAGE V. UNITED STATES, 250 U.S.
33; BANKERS POCAHONTAS COAL CO. V. BURNET, 287 U.S. 308) ARE NOT IN
POINT, SINCE THE SUIT AGAINST THE COLLECTOR IS "PERSONAL AND ITS
INCIDENTS, SUCH AS THE NATURE OF THE DEFENSES OPEN AND THE ALLOWANCE OF
INTEREST, ARE DIFFERENT."  SAGE V. UNITED STATES, SUPRA, P. 37.  BUT
HERE THE AUTHORITY OF THE COMMISSION IS CLEAR.  THERE CAN BE NO
QUESTION THAT IT WAS AUTHORIZED TO MAKE THE DETERMINATION OF THE STATUS
OF APPELLANT'S COAL UNDER THE ACT.  IT REPRESENTED THE UNITED STATES IN
THAT DETERMINATION AND THE DELEGATION OF THAT POWER TO THE COMMISSION
WAS VALID, AS WE HAVE SAID.  THAT SUIT THEREFORE BOUND THE UNITED
STATES, AS WELL AS THE APPELLANT.  WHERE A SUIT BINDS THE UNITED
STATES, IT BINDS ITS SUBORDINATE OFFICIALS.  TAIT V. WESTERN MARYLAND
RY. CO., SUPRA.  THE SUGGESTION THAT THE DOCTRINE OF RES JUDICATA DOES
NOT APPLY UNLESS THE COURT RENDERING THE JUDGMENT HAD JURISDICTION OF
THE CAUSE IS SUFFICIENTLY ANSWERED BY STOLL V. GOTTLIEB, 305 U.S. 165
AND TREINIES V. SUNSHINE MINING CO., 308 U.S. 66.  AS HELD IN THOSE
CASES, IN GENERAL THE PRINCIPLES OF RES JUDICATA APPLY TO QUESTIONS OF
JURISDICTION AS WELL AS TO OTHER MATTERS - WHETHER IT BE JURISDICTION
OF THE SUBJECT MATTER OR OF THE PARTIES.  ACCORDINGLY THE LOWER COURT
CORRECTLY HELD THAT IT HAD NO JURISDICTION TO DETERMINE WHETHER
APPELLANT'S COAL WAS "BITUMINOUS" AS DEFINED IN THE ACT.  FURTHERMORE
WHERE, AS HERE, CONGRESS HAS CREATED A SPECIAL ADMINISTRATIVE PROCEDURE
FOR THE DETERMINATION OF THE STATUS OF PERSONS OR COMPANIES UNDER A
REGULATORY ACT AND HAS PRESCRIBED A PROCEDURE WHICH MEETS ALL
REQUIREMENTS OF DUE PROCESS, THAT REMEDY IS EXCLUSIVE.  SEE ANNISTON
MANUFACTURING CO. V. DAVIS, 301 U.S. 337. 

THE DECREE BELOW SUBJECTED APPELLANT TO PAYMENT OF TAXES ACCRUED OR
ASSESSED AGAINST IT UNDER SEC. 3(B) AFTER DECEMBER 4, 1939.  TO RELIEVE
AGAINST PAYMENT OF TAXES UNTIL FINAL TERMINATION OF THE LITIGATION
WOULD BE TO PUT A PREMIUM ON DILATORY TACTICS IN A SITUATION WHERE
UNDER THE AUTHORITY OF CURRIN V. WALLACE, MULFORD V. SMITH, AND UNITED
STATES V. ROCK ROYAL CO-OPERATIVE, SUPRA, THE SUBJECT OF THE ACT WAS
CLEARLY ONE OVER WHICH THE JURISDICTION OF CONGRESS WAS COMPLETE. 
AFFIRMED. 

FN1  H. REPORT NO. 294, 75TH CONG., 1ST SESS., PP. 2-3. 

FN2  THOUGH WE REFER THROUGHOUT TO THE COMMISSION, IT SHOULD BE NOTED
THAT ITS FUNCTIONS HAVE BEEN ADMINISTERED SINCE JULY 1, 1939, BY THE
BITUMINOUS COAL DIVISION OF THE DEPARTMENT OF THE INTERIOR. 
REORGANIZATION PLAN NO. II, SEC. 4(A) AND (B), SUBMITTED BY THE
PRESIDENT TO THE CONGRESS MAY 9, 1939.  PUB. RES. NO. 20, 76TH CONG.,
1ST SESS., C. 193, APPROVED JUNE 7, 1939. 

FN3  THESE PROVISIONS ARE NOW FOUND IN SEC. 3520 OF THE INTERNAL
REVENUE CODE.  (53 STAT. 430).  THE 1[ TAX WAS APPARENTLY DESIGNED TO
COVER THE ADMINISTRATIVE COSTS OF THE ACT.  SEE H. REPORT NO. 294,
SUPRA NOTE 1, PP. 2-3, RECOMMENDING A 1/2% TAX WHICH IN CONFERENCE WAS
CHANGED TO 1[ PER TON.  H. REPORT NO. 578, 75TH CONG., 1ST SESS., P.
5. 

FN4  SEC. 4, AS WE HAVE SEEN, GOVERNS THE CONSTITUTION AND OPERATION
OF THE CODE.  SEC. 4-A PROVIDES, INTER ALIA, THAT THE COMMISSION SHALL
SUBJECT COAL IN INTRASTATE COMMERCE TO THE PROVISIONS OF SEC. 4 IF IT
FINDS AFTER HEARING THAT TRANSACTIONS IN THAT COAL "CAUSE ANY UNDUE OR
UNREASONABLE ADVANTAGE, PREFERENCE, OR PREJUDICE AS BETWEEN PERSONS AND
LOCALITIES IN SUCH COMMERCE ON THE ONE HAND AND INTERSTATE COMMERCE IN
COAL ON THE OTHER HAND, OR ANY UNDUE, UNREASONABLE, OR UNJUST
DISCRIMINATION AGAINST INTERSTATE COMMERCE IN COAL, OR IN ANY MANNER
DIRECTLY AFFECT INTERSTATE COMMERCE IN COAL." 

FN5  SEC. 17(B) PROVIDES:  "THE TERM 'BITUMINOUS COAL' INCLUDES ALL
BITUMINOUS, SEMIBITUMINOUS, AND SUBBITUMINOUS COAL AND SHALL EXCLUDE
LIGNITE, WHICH IS DEFINED AS A LIGNITIC COAL HAVING CALORIFIC VALUE IN
BRITISH THERMAL UNITS OF LESS THAN SEVEN THOUSAND SIX HUNDRED PER POUND
AND HAVING A NATURAL MOISTURE CONTENT IN PLACE IN THE MINE OF 30 PER
CENTUM OR MORE." 

FN6  THIS HEARING WAS NOT RESTRICTED TO APPELLANT'S APPLICATION. 
OTHER PRODUCERS IN THE SAME FIELD INTERVENED. 

FN7  THE LIBERAL NOTICE AND OPPORTUNITY TO BE HEARD AFFORDED
APPELLANT ARE ILLUSTRATED BY THE FOLLOWING:  IN JANUARY 1938 THE REPORT
OF THE EXAMINER WAS SERVED ON APPELLANT.  IN MAY 1938 A PROPOSED REPORT
OF THE COMMISSION WAS ISSUED GIVING APPELLANT 30 DAYS TO FILE
EXCEPTIONS AND BRIEFS AND IN THAT EVENT TO APPLY FOR ORAL ARGUMENT. 
APPELLANT FILED EXCEPTIONS AND ASKED FOR ORAL ARGUMENT.  NOTICE OF ORAL
ARGUMENT WAS ISSUED AND ORAL ARGUMENT WAS HAD.  THEREAFTER THE
COMMISSION ISSUED ITS ORDER DENYING THE APPLICATION.    FN8  IT
GRANTED, HOWEVER, A PERMANENT INJUNCTION AGAINST COLLECTION OF TAXES
PRIOR TO DECEMBER 4, 1939 THE DATE ON WHICH THIS COURT DENIED A
PETITION FOR REHEARING ON THE PETITION FOR CERTIORARI.  308 U.S. 638. 
APPELLEE HAS NOT APPEALED FROM THAT PART OF THE DECREE.  THE COURT ALSO
GRANTED A STAY WITH RESPECT TO COLLECTION OF TAXES ACCRUING AFTER
DECEMBER 4, 1939, PENDING FINAL DISPOSITION OF THIS APPEAL. 

FN9  H. REPORT, NO. 294, SUPRA NOTE 1, STATES CONCERNING THIS TAX (P.
4):  "UNDER SUBSECTION (B) A TAX OF 19 1/2 PERCENT IS APPLIED TO COAL
WHICH WOULD BE SUBJECT TO THE PROVISIONS IN SECTION 4 OR THE PROVISIONS
OF SECTION 4A.  PRODUCERS WHO ARE CODE MEMBERS ARE EXEMPT FROM THIS
TAX.  THIS TAX IS INTENDED TO BE IN AID OF THE REGULATION OF INTERSTATE
COMMERCE IN COAL PROVIDED FOR IN SECTIONS 4 AND 4A." 

FN10  NATIONAL RESOURCES COMMITTEE, ENERGY RESOURCES AND NATIONAL
POLICY (1939) PP. 41-123, 338-346, 405-423. 

FN11 HEARINGS ON H.R. 8479, 74TH CONG., 1ST SESS. 

FN12  NATIONAL RESOURCES COMMITTEE, ENERGY RESOURCES AND NATIONAL
POLICY, SUPRA NOTE 10; H. REP. NO. 1800, 74TH CONG., 1ST SESS.,
COVERING THE 1935 ACT; S. REP. NO. 252, H. REP. NO. 294, 75TH CONG.,
1ST SESS., COVERING THE 1937 ACT; APPALACHIAN COALS, INC. V. UNITED
STATES, 288 U.S. 344; THIRD ANNUAL REPORT UNDER THE BITUMINOUS COAL ACT
OF 1937(1940), PP. 4-5. 

FN13  HAMILTON & WRIGHT, THE CASE OF BITUMINOUS COAL (1926); REPORT
OF THE FIFTEENTH ANNUAL MEETING OF THE NATIONAL COAL ASSOC., OCT. 1934,
PP. 9-11, 96-97. 

FN14  SEE UNITED STATES V. SOCONY-VACUUM OIL CO., SUPRA, P. 225. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE ACT UNDER REVIEW IS
BEYOND ANY POWER GRANTED TO CONGRESS AND THAT THE JUDGMENT BELOW SHOULD
BE REVERSED. 
..END :



















ANDERSON V. HELVERING, 310 U.S. 404 


NO. 682.  ARGUED APRIL 2, 1940.  - DECIDED MAY 20, 1940.  - 107 F.2D
459, AFFIRMED. 


OIL PROPERTIES, INCLUDING FEE INTERESTS, WERE SOLD FOR A SPECIFIED
MONEY CONSIDERATION PAYABLE PART IN CASH AND THE BALANCE, WITH
INTEREST, FROM ONE-HALF OF THE PROCEEDS TO BE RECEIVED BY THE VENDEE
FROM THE OIL AND GAS TO BE PRODUCED FROM THE PROPERTIES AND FROM THE
SALE BY HIM OF THE FEE OF ANY OR ALL OF THE LAND CONVEYED.  THE VENDOR
WAS TO HAVE A FIRST LIEN AND CLAIM AGAINST THE ONE-HALF OF OIL AND GAS
PRODUCTION AND FEE INTERESTS FROM WHICH THE BALANCE WAS PAYABLE.  THE
PROCEEDS FROM PRODUCTION AND SALES WERE TO GO DIRECTLY TO THE VENDEE,
WHO WAS TO DEPOSIT ONE-HALF TO THE CREDIT OF THE VENDOR.  THE AGREEMENT
RECITED THE VENDOR'S DESIRE TO SELL ALL INTEREST IN THE PROPERTIES; AND
IMMEDIATELY UPON ITS EXECUTION THEY WERE CONVEYED TO THE VENDEE WITHOUT
RESERVATION.  HELD THAT THE PART OF THE GROSS PROCEEDS WHICH THE VENDEE
RECEIVED FROM PRODUCTION AND SALE OF OIL FROM THE PROPERTIES, AND PAID
OVER TO THE VENDOR PURSUANT TO THE CONTRACT, SHOULD BE INCLUDED IN THE
GROSS INCOME OF THE VENDEE, IN COMPUTING HIS INCOME TAX UNDER THE
REVENUE ACT OF 1932.  P. 407. 

ANDERSON V. HELVERING, COMMISSIONER OF INTERNAL REVENUE.* 

*TOGETHER WITH NO. 683, PRICHARD V. HELVERING, COMMISSIONER OF
INTERNAL REVENUE, ALSO ON WRIT OF CERTIORARI, 309 U.S. 645, TO THE
CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 309 U.S. 645, TO REVIEW A JUDGMENT AFFIRMING A RULING OF
THE BOARD OF TAX APPEALS. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

OKLAHOMA CITY COMPANY IN 1931 OWNED CERTAIN ROYALTY INTERESTS, FEE
INTERESTS, AND DEFERRED OIL PAYMENTS IN PROPERTIES IN OKLAHOMA.  DURING
THAT YEAR IT ENTERED INTO A WRITTEN CONTRACT WITH PETITIONER PRICHARD
PROVIDING FOR THE CONVEYANCE TO HIM OF THESE INTERESTS FOR THE AGREED
CONSIDERATION OF ONE HUNDRED SIXTY THOUSAND DOLLARS, PAYABLE FIFTY
THOUSAND IN CASH AND ONE HUNDRED TEN THOUSAND FROM ONE-HALF OF THE
PROCEEDS RECEIVED BY HIM WHICH MIGHT BE DERIVED FROM OIL AND GAS
PRODUCED FROM THE PROPERTIES AND FROM THE SALE OF FEE TITLE TO ANY OR
ALL OF THE LAND CONVEYED.  INTEREST AT THE RATE OF 6% PER ANNUM WAS TO
BE PAID FROM THE PROCEEDS OF PRODUCTION AND OF SALES UPON THE UNPAID
BALANCE.  OKLAHOMA COMPANY WAS TO HAVE IN ADDITION A FIRST LIEN AND
CLAIM AGAINST "THAT ONE HALF OF ALL OIL AND GAS PRODUCTION AND FEE
INTEREST  ...  FROM WHICH THE $110,000 IS PAYABLE," THE LIEN AND CLAIM
"NOT IN ANY WAY (TO) AFFECT THE ONE-HALF INTEREST IN ALL OIL AND GAS
PRODUCTION AND FEE INTEREST OR THE REVENUE THEREFROM WHICH  ...  (IT)
IS TO HAVE AND RECEIVE UNDER THIS AGREEMENT."  THE PROCEEDS DERIVED
FROM THE OIL AND GAS PRODUCED AND FROM SALES OF THE FEE INTERESTS WERE
TO BE PAID DIRECTLY TO PRICHARD WHO WAS TO DEPOSIT ONE-HALF OF THEM AT
A DESIGNATED BANK, AT INTERVALS OF 90 DAYS, TO THE CREDIT OF OKLAHOMA
COMPANY.  THE AGREEMENT RECITED THAT OKLAHOMA COMPANY DESIRED "TO SELL
ALL OF ITS RIGHT, TITLE AND INTEREST OF WHATSOEVER NATURE" IN THE
DESCRIBED PROPERTIES, AND PROVIDED THAT A COPY OF THE AGREEMENT AND A
RELEASE BE PLACED IN ESCROW FOR DELIVERY TO PRICHARD UPON PAYMENT IN
FULL OF THE ONE HUNDRED TEN THOUSAND DOLLARS AND INTEREST.  IMMEDIATELY
UPON THE EXECUTION OF THE CONTRACT THE PROPERTIES WERE CONVEYED TO
PRICHARD WITHOUT RESERVATION.  FN1  IN ENTERING INTO THE AGREEMENT
PRICHARD ACTED NOT ONLY FOR HIMSELF BUT ALSO FOR PETITIONER ANDERSON,
EACH OF THEM HAVING A 45% INTEREST.  FN2 

THE GROSS PROCEEDS DERIVED FROM THE PRODUCTION AND SALE OF OIL FROM
THE PROPERTIES  FN3  DURING 1932 AMOUNTED TO SOME EIGHTY-ONE THOUSAND
DOLLARS.  PRICHARD, UPON RECEIVING THIS SUM, DISTRIBUTED ONE-HALF TO
OKLAHOMA COMPANY PURSUANT TO THE CONTRACT.  THE QUESTION FOR DECISION
IS WHETHER THE PROCEEDS THUS PAID OVER TO OKLAHOMA COMPANY SHOULD BE
INCLUDED IN THE GROSS INCOME OF PETITIONERS FOR THE TAX YEAR 1932.  FN4
THE RULING OF THE BOARD OF TAX APPEALS AGAINST PETITIONERS WAS
AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  107 F.2D 459.  BECAUSE OF AN
ASSERTED CONFLICT WITH THE APPLICABLE DECISIONS OF THIS COURT, WE
GRANTED CERTIORARI.  MARCH 4, 1940. 

IT IS SETTLED THAT THE SAME BASIC ISSUE DETERMINES BOTH TO WHOM
INCOME DERIVED FROM THE PRODUCTION OF OIL AND GAS IS TAXABLE AND TO
WHOM A DEDUCTION FOR DEPLETION IS ALLOWABLE.  THAT ISSUE IS, WHO HAS A
CAPITAL INVESTMENT IN THE OIL AND GAS IN PLACE AND WHAT IS THE EXTENT
OF HIS INTEREST.  HELVERING V. BANKLINE OIL CO., 303 U.S. 362, 367;
HELVERING V. O'DONNELL, 303 U.S. 370; HELVERING V. ELBE OIL CO., 303
U.S. 372; THOMAS V. PERKINS, 301 U.S. 655, 661, 663; HELVERING V. TWIN
BELL OIL SYNDICATE, 293 U.S. 312, 321; PALMER V. BENDER, 287 U.S. 551. 
COMPARE HELVERING V. CLIFFORD, 309 U.S. 331. 

OIL AND GAS RESERVES LIKE OTHER MINERALS IN PLACE, ARE RECOGNIZED AS
WASTING ASSETS.  THE PRODUCTION OF OIL AND GAS, LIKE THE MINING OF ORE,
IS TREATED AS AN INCOMEPRODUCING OPERATION, NOT AS A CONVERSION OF
CAPITAL INVESTMENT AS UPON A SALE, AND IS SAID TO RESEMBLE A
MANUFACTURING BUSINESS CARRIED ON BY THE USE OF THE SOIL.  BURNET V.
HARMEL, 287 U.S. 103, 106-107; BANKERS COAL CO. V. BURNET, 287 U.S.
308; UNITED STATES V. BIWABIK MINING CO., 247 U.S. 116; VON BAUMBACH V.
SARGENT LAND CO., 242 U.S. 503, 521, 522; STRATTON'S INDEPENDENCE V.
HOWBERT, 231 U.S. 399, 414.  THE DEPLETION EFFECTED BY PRODUCTION IS
LIKENED TO THE DEPRECIATION OF MACHINERY OR THE USING UP OF RAW
MATERIALS IN MANUFACTURING.  UNITED STATES V. LUDEY, 274 U.S. 295, 302
303; LYNCH V. ALWORTH-STEPHENS CO., 267 U.S. 364, 370.  COMPARE VON
BAUMBACH V. SARGENT LAND CO., SUPRA, AT 524-525.  THE DEDUCTION IS
THEREFORE PERMITTED AS AN ACT OF GRACE AND IS INTENDED AS COMPENSATION
FOR THE CAPITAL ASSETS CONSUMED IN THE PRODUCTION OF INCOME THROUGH THE
SEVERANCE OF THE MINERALS.  HELVERING V. BANKLINE OIL CO., 303 U.S.
362, 366-367.  THE GRANTING OF AN ARBITRARY DEDUCTION, IN THE INTERESTS
OF CONVENIENCE, OF A PERCENTAGE OF THE GROSS INCOME DERIVED FROM THE
SEVERANCE OF OIL AND GAS, MERELY EMPHASIZES THE UNDERLYING THEORY OF
THE ALLOWANCE AS A TAX-FREE RETURN OF THE CAPITAL CONSUMED IN THE
PRODUCTION OF GROSS INCOME THROUGH SEVERANCE.  HELVERING V. TWIN BELL
OIL SYNDICATE, 293 U.S. 312, 321; UNITED STATES V. DAKOTA-MONTANA OIL
CO., 288 U.S. 459, 467. 

THE SOLE OWNER AND OPERATOR OF OIL PROPERTIES CLEARLY HAS A CAPITAL
INVESTMENT IN THE OIL IN PLACE, IF ANYONE HAS, AND SO IS TAXABLE ON THE
GROSS PROCEEDS OF PRODUCTION AND IS GRANTED A DEDUCTION FROM GROSS
INCOME AS COMPENSATION FOR THE CONSUMPTION OF HIS CAPITAL.  SEE BURNET
V. HARMEL, SUPRA, AT 107-108; HELVERING V. CLIFFORD, 309 U.S. 331.  BY
AN OUTRIGHT SALE OF HIS INTEREST FOR CASH, SUCH AN OWNER CONVERTS THE
FORM OF HIS CAPITAL INVESTMENT, SEVERS HIS CONNECTION WITH THE
PRODUCTION OF OIL AND GAS AND THE INCOME DERIVED FROM PRODUCTION, AND
THUS RENDERS INAPPLICABLE TO HIS SITUATION THE REASONS FOR THE
DEPLETION ALLOWANCE.  "THE WORDS 'GROSS INCOME FROM THE PROPERTY,' AS
USED IN THE STATUTE GOVERNING THE ALLOWANCE FOR DEPLETION, MEAN GROSS
INCOME RECEIVED FROM THE OPERATION OF THE OIL AND GAS WELLS BY ONE WHO
HAS A CAPITAL INVESTMENT THEREIN, - NOT INCOME FROM THE SALE OF THE OIL
AND GAS PROPERTIES THEMSELVES."  HELVERING V. ELBE OIL LAND CO., 303
U.S. 372, 375-376. 

OTHER SITUATIONS, FALLING BETWEEN THE TWO MENTIONED, HAVE BEEN PUT ON
ONE SIDE OR THE OTHER AS THE CASES AROSE.  THE HOLDER OF A ROYALTY
INTEREST - THAT IS, A RIGHT TO RECEIVE A SPECIFIED PERCENTAGE OF ALL
OIL AND GAS PRODUCED DURING THE TERM OF THE LEASE - IS DEEMED TO HAVE
"AN ECONOMIC INTEREST" IN THE OIL IN PLACE WHICH IS DEPLETED BY
SEVERANCE.  PALMER V. BENDER, 287 U.S. 551, 557; MURPHY OIL CO. V.
BURNET, 287 U.S. 299; BURNET V. HARMEL, 287 U.S. 103.  SEE LYNCH V.
ALWORTH-STEPHENS CO., 267 U.S. 364.  CASH BONUS PAYMENTS, WHEN INCLUDED
IN A ROYALTY LEASE, ARE REGARDED AS ADVANCE ROYALTIES, AND ARE GIVEN
THE SAME TAX CONSEQUENCES.  BURNET V. HARMEL, 287 U.S. 103; MURPHY OIL
CO. V. BURNET, 287 U.S. 299; BANKERS POCAHONTAS COAL CO. V. BURNET, 287
U.S. 308.  COMPARE HELVERING V. ELBE OIL LAND CO., 303 U.S. 372, 375. 
A SHARE IN THE NET PROFITS DERIVED FROM DEVELOPMENT AND OPERATION, ON
THE CONTRARY, DOES NOT ENTITLE THE HOLDER OF SUCH INTEREST TO A
DEPLETION ALLOWANCE EVEN THOUGH CONTINUED PRODUCTION IS ESSENTIAL TO
THE REALIZATION OF SUCH PROFITS.  HELVERING V. O'DONNELL, 303 U.S. 370;
HELVERING V. ELBE OIL CO., 303 U.S. 372.  SIMILARLY, THE HOLDER OF A
FAVORABLE CONTRACT TO PURCHASE WET GAS AT THE MOUTH OF THE WELL IS
DENIED A DEPLETION ALLOWANCE ON THE DIFFERENCE BETWEEN THE CONTRACT
PRICE AND THE FAIR MARKET VALUE.  HELVERING V. BANKLINE OIL CO., 303
U.S. 362.  SUCH AN INTEREST HAS BEEN CHARACTERIZED BY US AS A "MERE
ECONOMIC ADVANTAGE DERIVED FROM PRODUCTION, THROUGH A CONTRACTUAL
RELATION TO THE OWNER."  HELVERING V. BANKLINE OIL CO., SUPRA, AT 367. 

THOMAS V. PERKINS, 301 U.S. 655, RELIED UPON BY PETITIONERS,
PRESENTED THE ISSUE WHETHER THE RIGHT TO OIL PAYMENTS - THAT IS, THE
RIGHT TO A SPECIFIED SUM OF MONEY, PAYABLE OUT OF A SPECIFIED
PERCENTAGE OF THE OIL, OR THE PROCEEDS RECEIVED FROM THE SALE OF SUCH
OIL, IF, AS AND WHEN PRODUCED - SHOULD BE TREATED FOR TAX PURPOSES LIKE
THE RIGHT TO OIL ROYALTIES OR LIKE THE RIGHT TO CASH PAYMENTS UPON A
SALE.  IN THAT CASE, THE ASSIGNMENT OF LEASE PROVIDED FOR PAYMENTS IN
OIL ONLY WITHOUT THE RESERVATION OF A ROYALTY INTEREST.  THE QUESTION
WAS WHETHER THE ASSIGNEES' GROSS INCOME SHOULD INCLUDE MONEYS PAID TO
THE ASSIGNORS BY PURCHASERS OF THE OIL.  WE STATED (P. 659): "THE
GRANTING CLAUSE IN THE ASSIGNMENT WOULD BE SUFFICIENT, IF STANDING
ALONE, TO TRANSFER ALL THE OIL TO THE ASSIGNEE.  IT DOES NOT
SPECIFICALLY EXCEPT OR EXCLUDE ANY PART OF THE OIL.  BUT IT IS
QUALIFIED BY OTHER PARTS OF THE INSTRUMENT.  THE PROVISIONS FOR PAYMENT
TO ASSIGNORS IN OIL ONLY, THE ABSENCE OF ANY OBLIGATION OF THE ASSIGNEE
TO PAY IN OIL OR IN MONEY, AND THE FAILURE OF ASSIGNORS TO TAKE ANY
SECURITY BY WAY OF LIEN OR OTHERWISE UNMISTAKABLY SHOW THAT THEY
INTENDED TO WITHHOLD FROM THE OPERATION OF THE GRANT ONEFOURTH OF THE
OIL TO BE PRODUCED AND SAVED UP TO AN AMOUNT SUFFICIENT WHEN SOLD TO
YIELD $395,000."  UNDER THESE CIRCUMSTANCES, THE MONEYS RECEIVED BY THE
ASSIGNORS FROM THE SALE OF THE OIL WERE DEEMED NOT TO BE INCOME TO THE
ASSIGNEES.  SEE ALSO PALMER V. BENDER, 287 U.S. 551. 

THE HOLDER OF AN OIL PAYMENT RIGHT, AS AN ORIGINAL PROPOSITION, MIGHT
BE REGARDED AS HAVING NO CAPITAL INVESTMENT IN THE OIL AND GAS IN
PLACE.  THE VALUE OF THE RIGHT, EVEN THOUGH DEPENDENT UPON THE EXTENT
OF THE OIL RESERVES, IS FIXED AT THE MOMENT OF CREATION AND DOES NOT
VARY DIRECTLY WITH THE SEVERANCE OF THE MINERAL FROM THE SOIL.  IN THIS
SENSE IT RESEMBLES THE RIGHT TO CASH PAYMENTS MORE CLOSELY THAN THE
RIGHT TO ROYALTY PAYMENTS.  YET IT DOES DEPEND UPON THE PRODUCTION OF
OIL, ORDINARILY CAN BE REALIZED UPON ONLY OVER A PERIOD OF YEARS, AND
PERMITS OF A SIMPLE AND CONVENIENT ALLOCATION BETWEEN LESSOR AND LESSEE
OF BOTH THE GROSS INCOME DERIVED FROM PRODUCTION AND THE ALLOWANCE FOR
DEPLETION.  COMPARE BURNET V. HARMEL, 287 U.S. 103, 106-107. 
ACCORDINGLY, THIS COURT IN THOMAS V. PERKINS DECIDED THAT THE PROVISION
IN THE LEASE FOR PAYMENTS SOLELY OUT OF OIL PRODUCTION SHOULD BE
REGARDED AS A RESERVATION FROM THE GRANTING CLAUSE OF AN AMOUNT OF OIL
SUFFICIENT TO MAKE THE AGREED PAYMENTS, AND SHOULD BE GIVEN THE SAME
TAX CONSEQUENCES AS A PROVISION FOR OIL ROYALTIES.  THE DECISION DID
NOT TURN UPON THE PARTICULAR INSTRUMENT INVOLVED, OR UPON THE
FORMALITIES OF THE CONVEYANCER'S ART, BUT RESTED UPON THE PRACTICAL
CONSEQUENCES OF THE PROVISION FOR PAYMENTS OF THAT TYPE.  SEE PALMER V.
BENDER, 287 U.S. 551, 555-557; BURNET V. HARMEL, 287 U.S. 103, 111. 

THE GOVERNMENT MAINTAINS THAT THE PRESENT CASE IS DISTINGUISHABLE
FROM THOMAS V. PERKINS FOR THE REASON THAT THE BASIS FOR DECISION THERE
WAS THAT OWNERSHIP OF SUFFICIENT OIL TO MAKE THE PAYMENTS HAD NOT BEEN
CONVEYED TO THE ASSIGNEE BUT REMAINED IN THE ASSIGNOR.  IT ASSERTS THAT
THE TERMS OF THE CONTRACT AND THE INSTRUMENTS OF CONVEYANCE HERE
NEGATIVE ANY INTENTION ON THE PART OF THE PARTIES TO WITHHOLD FROM THE
OPERATION OF THE GRANT AN AMOUNT OF OIL EQUAL TO THE OIL PAYMENTS.  THE
FOLLOWING FACTORS, AMONG OTHERS, ARE RELIED UPON AS SUPPORTING THIS
CONTENTION:  (1) THE CONTRACT CONTAINS NO QUALIFYING LANGUAGE RESERVING
FROM THE GRANT ANY INTEREST IN THE OIL AND GAS IN PLACE; (2) THE
DEFERRED PAYMENTS OF ONE HUNDRED TEN THOUSAND DOLLARS WERE PAYABLE IN
CASH AND NOT DIRECTLY IN OIL; (3) THE DEFERRED PAYMENTS DREW INTEREST
UNTIL PAID; (4) OKLAHOMA COMPANY HAD A FIRST LIEN AND CLAIM AGAINST ONE
HALF OF THE OIL AND GAS PRODUCTION AND FEE INTEREST; (5) PETITIONER
PRICHARD HAD THE RIGHT TO SELL THE FEE INTEREST COVERED BY THE CONTRACT
AND DISCHARGE THE DEFERRED PAYMENTS OUT OF THE PROCEEDS OF SUCH SALE
RATHER THAN OUT OF THE PROCEEDS OF THE OIL AND GAS PRODUCTION. 

SEVERAL OF THE DISTINCTIONS URGED UPON US BY THE GOVERNMENT ARE
WITHOUT SUBSTANCE.  THE ECONOMIC CONSEQUENCES OF THE TRANSACTION ARE
NOT MATERIALLY AFFECTED BY THE CIRCUMSTANCE THAT THE PROVISION FOR OIL
PAYMENTS IS NOT PHRASED IN TERMS OF A RESERVATION FROM THE CONVEYANCE
TO OKLAHOMA COMPANY OF AN INTEREST IN THE OIL AND GAS IN PLACE.  AND
THE FACT THAT THE PAYMENTS TO OKLAHOMA COMPANY ARE IN CASH RATHER THAN
DIRECTLY IN OIL IS OF NO MOMENT IN DETERMINING THE ISSUES PRESENTED FOR
DECISION.  COMPARE, HOWEVER, GENERAL UTILITIES CO. V. HELVERING, 296
U.S. 200.  SIMILARLY, THE RETENTION OF A LIEN, IF IT WERE CONSTRUED AS
A LIEN ONLY UPON THE OIL AND GAS PRODUCTION, AND NOTHING MORE,  FN5
WOULD NOT MAKE OKLAHOMA COMPANY ANY THE LESS DEPENDENT UPON SUCH
PRODUCTION FOR PAYMENT OF THE AMOUNTS RESERVED. 

THE RESERVATION OF AN INTEREST IN THE FEE, IN ADDITION TO THE
INTEREST IN THE OIL PRODUCTION, HOWEVER, MATERIALLY AFFECTS THE
TRANSACTION.  OKLAHOMA COMPANY IS NOT DEPENDENT ENTIRELY UPON THE
PRODUCTION OF OIL FOR THE DEFERRED PAYMENTS; THEY MAY BE DERIVED FROM
SALES OF THE FEE TITLE TO THE LAND CONVEYED.  IT IS CLEAR THAT PAYMENTS
DERIVED FROM SUCH SALES WOULD NOT BE SUBJECT TO AN ALLOWANCE FOR
DEPLETION OF THE OIL RESERVES, FOR NO OIL WOULD THEREBY HAVE BEEN
SEVERED FROM THE GROUND; AN ALLOWANCE FOR DEPLETION UPON THE PROCEEDS
OF SUCH A SALE WOULD RESULT, CONTRARY TO THE PURPOSE OF CONGRESS, IN A
DOUBLE DEDUCTION - FIRST, TO OKLAHOMA COMPANY; SECOND, TO THE VENDEE
OWNER UPON THE PRODUCTION OF OIL.  HELVERING V. TWIN BELL OIL
SYNDICATE, 293 U.S. 312, 321.  WE ARE OF OPINION THAT THE RESERVATION
OF THIS ADDITIONAL TYPE OF SECURITY FOR THE DEFERRED PAYMENTS SERVES TO
DISTINGUISH THIS CASE FROM THOMAS V. PERKINS.  IT IS SIMILAR TO THE
RESERVATION IN A LEASE OF OIL PAYMENT RIGHTS TOGETHER WITH A PERSONAL
GUARANTEE BY THE LESSEE THAT SUCH PAYMENTS SHALL AT ALL EVENTS EQUAL
THE SPECIFIED SUM.  IN EITHER CASE, IT IS TRUE, SOME OF THE PAYMENTS
RECEIVED MAY COME DIRECTLY OUT OF THE OIL PRODUCED.  BUT OUR DECISION
IN THOMAS V. PERKINS DOES NOT REQUIRE THAT PAYMENTS RESERVED TO THE
TRANSFEROR OF OIL PROPERTIES SHALL FOR TAX PURPOSES BE TREATED
DISTRIBUTIVELY, AND NOT AS A WHOLE, DEPENDING UPON THE SOURCE FROM
WHICH EACH DOLLAR IS DERIVED.  AN EXTENSION OF THAT DECISION TO COVER
THE CASE AT BAR WOULD CREATE ADDITIONAL, AND IN OUR OPINION
UNNECESSARY, DIFFICULTIES TO THE ALLOCATION FOR INCOME TAX PURPOSES OF
SUCH PAYMENTS AND OF THE ALLOWANCE FOR DEPLETION BETWEEN TRANSFEROR AND
TRANSFEREE.  IN THE INTERESTS OF A WORKABLE RULE, THOMAS V. PERKINS
MUST NOT BE EXTENDED BEYOND THE SITUATION IN WHICH, AS A MATTER OF
SUBSTANCE, WITHOUT REGARD TO FORMALITIES OF CONVEYANCING, THE RESERVED
PAYMENTS ARE TO BE DERIVED SOLELY FROM THE PRODUCTION OF OIL AND GAS. 
THE DEFERRED PAYMENTS RESERVED BY OKLAHOMA COMPANY, ACCORDINGLY, MUST
BE TREATED AS PAYMENTS RECEIVED UPON A SALE TO PETITIONERS, NOT AS
INCOME DERIVED FROM THE CONSUMPTION OF ITS CAPITAL INVESTMENT IN THE
RESERVES THROUGH SEVERANCE OF OIL AND GAS. 

PETITIONERS, AS PURCHASERS AND OWNERS OF THE PROPERTIES, ARE
THEREFORE TAXABLE UPON THE GROSS PROCEEDS DERIVED FROM THE OIL
PRODUCTION, NOTWITHSTANDING THE ARRANGEMENT TO PAY OVER SUCH PROCEEDS
TO OKLAHOMA COMPANY.  SEE HELVERING V. CLIFFORD, 309 U.S. 331; REINECKE
V. SMITH, 289 U.S. 172, 177; OLD COLONY TRUST CO. V. COMMISSIONER, 279
U.S. 716.  AFFIRMED. 

FN1  PETITIONERS STATE THAT "THE INSTRUMENTS OF TRANSFER OF THOSE
PROPERTIES WERE ABSOLUTE AND UNQUALIFIED ASSIGNMENTS AND CONVEYANCES"
AND THAT THERE WAS "NO RESERVATION OF ANY SORT OF INTEREST, MUCH LESS
ANY LEGAL INTEREST, SPECIFIED IN THOSE ASSIGNMENTS AND CONVEYANCES." 

FN2  THE REMAINING 10% INTEREST WAS ACQUIRED FOR ONE OLSEN, WHOSE
CASE WAS CONSOLIDATED WITH THOSE OF PRICHARD AND ANDERSON, AND DISPOSED
OF IN THE SAME OPINION BELOW, BUT WHO HAS NOT SOUGHT REVIEW HERE. 

FN3  THE RECORD DOES NOT INDICATE WHAT PORTION OF THE GROSS PROCEEDS
WAS DERIVED FROM THE PRODUCTION AND SALE OF OIL AND GAS AND WHAT
PORTION, IF ANY, WAS DERIVED FROM SALES OF FEES AND FROM ROYALTIES ON
LEASES.  THE COMMISSIONER IN DETERMINING DEFICIENCIES AGAINST
PETITIONERS, HOWEVER, ADDED $11,276.39 TO THE GROSS INCOME OF EACH WITH
THE EXPLANATION THAT THIS AMOUNT REPRESENTED "IN-OIL PAYMENTS RECEIVED
IN CONNECTION WITH THE PATTERSON (OKLAHOMA COMPANY) DEAL" NOT REPORTED
BY PETITIONERS.  RESPONDENT, IN VIEW OF THIS EXPLANATION BY THE
COMMISSIONER AND THE OMISSION FROM THE RECORD OF ANY DISCLOSURE OF THE
METHOD OF COMPUTING THE $11,276.39 ADDITION TO GROSS INCOME, ACCEPTS
PETITIONERS' STATEMENT THAT "THE ONLY INCOME FROM THE PROPERTIES HERE
IN DISPUTE IS FROM OIL PRODUCTION." 

FN4  REVENUE ACT OF 1932, C. 209, 47 STAT. 169. 

FN5  THE LIEN HERE APPEARS TO COVER BOTH THE OIL AND GAS PRODUCTION
AND THE FEE INTEREST FROM WHICH THE DEFERRED PAYMENTS WERE TO BE
DERIVED. 
..END :























TIGNER V. TEXAS, 310 U.S. 141 


NO. 635.  ARGUED MARCH 29, 1940.  - DECIDED MAY 6, 1940.  - 132 S.W.2D
885, AFFIRMED. 


1.  SINCE FARMERS AND STOCKMEN ARE WIDELY SCATTERED AND INURED TO
HABITS OF INDIVIDUALISM AND ECONOMICALLY ARE IN LARGE MEASURE DEPENDENT
UPON CONTINGENCIES BEYOND THEIR CONTROL, A LEGISLATURE MAY REASONABLY
BELIEVE THAT COMBINATIONS OF FARMERS AND STOCKMEN RESTRAINING TRADE IN
THEIR AGRICULTURAL PRODUCTS AND LIVESTOCK PRESENT NO THREAT TO THE
COMMUNITY, OR, AT LEAST, THAT THE THREAT IS OF A DIFFERENT ORDER FROM
THAT OF COMBINATIONS OF INDUSTRIALISTS AND MIDDLEMEN.  P. 145. 

2.  SINCE CONNOLLY V. UNION SEWER PIPE CO., 184 U.S. 540, WAS
DECIDED, AN IMPRESSIVE LEGISLATIVE MOVEMENT BEARS WITNESS TO GENERAL
ACCEPTANCE OF THE VIEW THAT THE DIFFERENCES BETWEEN AGRICULTURE AND
INDUSTRY CALL FOR DIFFERENTIATION IN THE FORMULATION OF PUBLIC POLICY. 
P. 145. 

3.  THE "LAWS" MEANT BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT ARE NOT ABSTRACTIONS BUT ARE EXPRESSIONS OF POLICY ARISING
OUT OF SPECIFIC DIFFICULTIES, ADDRESSED TO THE ATTAINMENT OF SPECIFIC
ENDS BY THE USE OF SPECIFIC REMEDIES.  THE CONSTITUTION DOES NOT
REQUIRE THINGS WHICH ARE DIFFERENT IN FACT OR OPINION TO BE TREATED IN
LAW AS THOUGH THEY WERE THE SAME.  P. 147. 

4.  A TEXAS PENAL STATUTE PUNISHING CONSPIRACIES IN RESTRAINT OF
TRADE BUT EXPRESSLY INAPPLICABLE TO "AGRICULTURAL PRODUCTS OR LIVESTOCK
WHILE IN THE HANDS OF THE PRODUCER OR RAISER," HELD CONSISTENT WITH THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 149. 

5.  IN EFFECTUATING ITS POLICY WITH RESPECT TO COMBINATIONS IN
RESTRAINT OF TRADE, THE TEXAS LEGISLATURE, THOUGH EXEMPTING FARMERS AND
STOCKMEN FROM PENAL REMEDIES APPLICABLE TO OTHERS, SUBJECTED THEM LIKE
OTHERS TO CIVIL PENALTIES.  HELD, WITHIN LEGISLATIVE DISCRETION AND
CONSISTENT WITH EQUAL PROTECTION OF THE LAWS.  P. 149. 

TIGNER V. TEXAS. 

APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. 

APPEAL FROM A JUDGMENT WHICH AFFIRMED A JUDGMENT DENYING A PETITION
FOR A WRIT OF HABEAS CORPUS AND REMANDING THE PETITIONER TO CUSTODY
UNDER AN INDICTMENT FOR CONSPIRACY. 

THE EXEMPTION PROVISION IN THE ILLINOIS STATUTE INVOLVED IN CONNOLLY
V. UNION SEWER PIPE CO., 184 U.S. 540, WAS PRACTICALLY IDENTICAL, AND
THAT CASE IS DECISIVE HERE.  SEE ALSO BARBIER V. CONNOLLY, 113 U.S. 27,
32; HAYES V. MISSOURI, 120 U.S. 68, 71.  THE DECISIONS RELIED ON BY THE
COURT BELOW DO NOT SUSTAIN ITS CONCLUSION THAT "IN VIEW OF THE
SUPERVENING ECONOMIC CONDITIONS SINCE 1902" THE RULE OF THE CONNOLLY
CASE IS NOT CONTROLLING. 

THE OBJECT OF THE TEXAS ANTITRUST LAWS IS TO ENCOURAGE COMPETITION
AND PREVENT THE EVILS INCIDENT TO PRICE FIXING ETC. UNDER THE CIVIL
STATUTES, PRICE-FIXING AGREEMENTS OF FARMERS ARE ILLEGAL, JUST AS ARE
THOSE MADE BY OTHERS.  STATE V. STANDARD OIL CO., 130 TEX. 313.  THUS,
THE STATE RECOGNIZES THAT IT IS NOT IN THE PUBLIC INTEREST TO PERMIT
MONOPOLIES, TRUSTS AND CONSPIRACIES IN RESTRAINT OF TRADE BY ANY CLASS
OF CITIZENS.  YET, THIS POLITICALLY POWERFUL CLASS IS EXEMPTED FROM
PENALTIES PRESCRIBED BY THE CRIMINAL ANTITRUST STATUTES, WHILE ALL
OTHER CLASSES ARE SUBJECTED THERETO. 

WHAT JUSTIFICATION IN LOGIC OR IN LAW CAN BE OFFERED FOR MAKING AN
ACT CRIMINAL IF COMMITTED BY A MERCHANT OR A MANUFACTURER BUT NOT IF
COMMITTED BY A RANCHMAN OR FARMER?  NO GRAND JURY COULD INDICT THESE
RANCHMEN FOR A CRIMINAL OFFENSE, BECAUSE THEY ARE EXEMPT FROM CRIMINAL
PROSECUTION.  AND NO ACTION UNDER THE CIVIL ANTITRUST STATUTES COULD BE
TAKEN AGAINST THEM FOR PRICE FIXING, UNLESS THE ATTORNEY GENERAL, AN
ELECTED OFFICIAL, CONSENTED THAT SUCH A SUIT BE INSTITUTED.  ART. 7436,
TIT. 126, VERNON'S TEXAS CIVIL STATS. VOL. 20, P. 638.  SUCH A
PROCEEDING HAS NEVER OCCURRED AND PROBABLY NEVER WILL OCCUR IN TEXAS. 

ECONOMIC CONSIDERATIONS DO NOT JUSTIFY THE EXCEPTION OF FARMERS AND
STOCKMEN FROM THE CRIMINAL ANTITRUST LAWS.  THEY ARE NOT EXCEPTED FROM
THE CIVIL ANTITRUST LAWS.  THERE EXISTS NO SUCH DIFFERENCE BETWEEN THE
CLASSES IN THEIR RELATION TO THE ULTIMATE OBJECT OF THE STATUTE AS
WOULD JUSTIFY THE DISCRIMINATION.  THE OBJECT OF THE STATUTE IS
PUNISHMENT FOR PRICE-FIXING AND OTHER FORBIDDEN ACTS.  RANCHMEN AND
FARMERS HAVE THE SAME RELATIONSHIP TOWARDS THIS OBJECT AS APPELLANT. 
THE ONLY DIFFERENCE IS IN OCCUPATIONS, IN EACH OF WHICH PRICE-FIXING
AGREEMENTS ARE ILLEGAL UNDER THE CIVIL LAWS. 

MANY BUSINESS MEN HAVE AS LITTLE OPPORTUNITY TO SUPPRESS COMPETITION
AS FARMERS AND STOCKMEN, AND MANY PEOPLE ARE AS POOR.  THE MERE FACT
THAT MORE FARMERS AND STOCKMEN LIVE IN THE COUNTRY THAN IN THE CITY,
AND THE MERE FACT THAT AS A GROUP THEY MAY NOT HAVE THE SAME
OPPORTUNITIES AND FACILITIES FOR RESTRICTING COMPETITION AND
CONTROLLING PRICES AS OTHER BUSINESSMEN, ARE DIFFERENCES INSUFFICIENT
TO JUSTIFY THE CLASSIFICATION.  TRUAX V. CORRIGAN, 257 U.S. 312;
HARTFORD STEAM BOILER CO. V. HARRISON, 301 U.S. 459; POWER MFG. CO. V.
SAUNDERS, 274 U.S. 490; QUAKER CITY CAB CO. V. PENNSYLVANIA, 277 U.S.
389; LIGGETT CO. V. BALDRIDGE, 278 U.S. 105; SMITH V. CAHOON, 283 U.S.
553; FROST V. CORPORATION COMM'N, 278 U.S. 515; GULF, C. & S.F. RY. CO.
V. ELLIS, 165 U.S. 150; IN RE OPINION OF JUSTICES, 211 MASS. 618. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE, AS AMENDED,
28 U.S.C. SEC. 344, TO REVIEW A JUDGMENT OF THE COURT OF CRIMINAL
APPEALS OF TEXAS SUSTAINING THE CONSTITUTIONALITY OF A TEXAS ANTI-TRUST
LAW, AND THEREFORE UPHOLDING AN INDICTMENT UNDER IT.  APPELLANT WAS
CHARGED WITH PARTICIPATION IN A CONSPIRACY TO FIX THE RETAIL PRICE OF
BEER.  SUCH A CONSPIRACY IS MADE A CRIMINAL OFFENSE BY TITLE 19,
CHAPTER 3, OF THE TEXAS PENAL CODE.  BECAUSE THE PROVISIONS OF THIS LAW
DO NOT "APPLY TO AGRICULTURAL PRODUCTS OR LIVE STOCK IN THE HANDS OF
THE PRODUCER OR RAISER," ART. 1642, TIGNER CHALLENGED THE VALIDITY OF
THE ENTIRE STATUTE AND SOUGHT RELEASE IN THE LOCAL COURTS BY HABEAS
CORPUS.  HIS CLAIM HAS BEEN REJECTED BY THE TEXAS COURT OF CRIMINAL
APPEALS.  132 S.W.2D 885.  ESSENTIALLY HIS CONTENTION IS THAT THE
EXEMPTION GRANTED BY THE TEXAS STATUTE FALLS WITHIN THE CONDEMNATION OF
CONNOLLY V. UNION SEWER PIPE CO., 184 U.S. 540, AS OFFENSIVE TO "THE
EQUAL PROTECTION OF THE LAWS" WHICH THE FOURTEENTH AMENDMENT
SAFEGUARDS.  IF THAT CASE CONTROLS, APPELLANT CONTENDS, THE TEXAS ACT
CANNOT SURVIVE AND HE MUST GO FREE. 

THE COURT BELOW RECOGNIZED THAT THE EXEMPTION WAS IDENTICAL WITH THAT
DEEMED FATAL TO THE ILLINOIS STATUTE INVOLVED IN CONNOLLY'S CASE.  BUT
IT FELT THAT TIME AND CIRCUMSTANCES HAD DRAINED THAT CASE OF VITALITY,
LEAVING IT FREE TO TREAT THE EXEMPTION AS AN EXERCISE OF LEGISLATIVE
DISCRETION.  A SIMILAR ATTITUDE HAS BEEN REFLECTED BY THE SUPREME COURT
OF WISCONSIN, NORTHERN WISCONSIN COOPERATIVE TOBACCO POOL V. BEKKEDAL,
182 WIS. 571, 593; 197 N.W. 936, AND APPEARS TO UNDERLIE MUCH RECENT
STATE AND FEDERAL LEGISLATION.  DEALING AS WE ARE WITH AN APPEAL TO THE
CONSTITUTION, THE CONNOLLY CASE OUGHT NOT TO FORECLOSE US FROM
CONSIDERING THIS EXEMPTION IN ITS OWN SETTING. 

THE PROBLEM, IN BRIEF, IS THIS:  MAY TEXAS PROMOTE ITS POLICY OF
FREEDOM FOR ECONOMIC ENTERPRISE BY UTILIZING THE CRIMINAL LAW AGAINST
VARIOUS FORMS OF COMBINATION AND MONOPOLY, BUT EXCLUDE FROM CRIMINAL
PUNISHMENT CORRESPONDING ACTIVITIES OF AGRICULTURE? 

LEGISLATION, BOTH STATE AND FEDERAL, SIMILAR TO THAT OF TEXAS HAD ITS
ORIGIN IN FEAR OF THE CONCENTRATION OF INDUSTRIAL POWER FOLLOWING THE
CIVIL WAR.  LAW WAS INVOKED TO BUTTRESS THE TRADITIONAL SYSTEM OF FREE
COMPETITION, FREE MARKETS AND FREE ENTERPRISE.  PRESSURE FOR THIS
LEGISLATION CAME MORE PARTICULARLY FROM THOSE WHO AS PRODUCERS, AS WELL
AS CONSUMERS, CONSTITUTED THE MOST DISPERSED ECONOMIC GROUPS.  FN1
THESE LARGE SECTIONS OF THE POPULATION - THOSE WHO LABORED WITH THEIR
HANDS AND THOSE WHO WORKED THE SOIL - WERE AS A MATTER OF ECONOMIC FACT
IN A DIFFERENT RELATION TO THE COMMUNITY FROM THAT OCCUPIED BY
INDUSTRIAL COMBINATIONS.  FARMERS WERE WIDELY SCATTERED AND INURED TO
HABITS OF INDIVIDUALISM; THEIR ECONOMIC FATE WAS IN LARGE MEASURE
DEPENDENT UPON CONTINGENCIES BEYOND THEIR CONTROL.  IN THESE
CIRCUMSTANCES, LEGISLATORS MAY WELL HAVE THOUGHT COMBINATIONS OF
FARMERS AND STOCKMEN PRESENTED NO THREAT TO THE COMMUNITY, OR, AT
LEAST, THE THREAT WAS OF A DIFFERENT ORDER FROM THAT ARISING THROUGH
COMBINATIONS OF INDUSTRIALISTS AND MIDDLEMEN.  AT ALL EVENTS
LEGISLATION LIKE THAT OF TEXAS RESTED ON THIS VIEW, CURBING INDUSTRIAL
AND COMMERCIAL COMBINATIONS, AND DID NOT VISIT THE SAME CONDEMNATION
UPON COLLABORATIVE EFFORTS BY FARMERS AND STOCKMEN BECAUSE THE LATTER
WERE FELT TO HAVE A DIFFERENT ECONOMIC SIGNIFICANCE.  FN2 

SINCE CONNOLLY'S CASE WAS DECIDED, NEARLY FORTY YEARS AGO, AN
IMPRESSIVE LEGISLATIVE MOVEMENT BEARS WITNESS TO GENERAL ACCEPTANCE OF
THE VIEW THAT THE DIFFERENCES BETWEEN AGRICULTURE AND INDUSTRY CALL FOR
DIFFERENTIATION IN THE FORMULATION OF PUBLIC POLICY.  THE STATES AS
WELL AS THE UNITED STATES HAVE SANCTIONED COOPERATIVE ACTION BY
FARMERS; HAVE RESTRICTED THEIR AMENABILITY TO THE ANTITRUST LAWS; HAVE
RELIEVED THEIR ORGANIZATIONS FROM TAXATION.  SEE, E.G., CAPPER-VOLSTEAD
ACT, 42 STAT. 388, 7 U.S.C. SEC. 291; CLAYTON ACT, 38 STAT. 730, 731,
15 U.S.C. SEC. 17; SEC. 101(1) OF THE INTERNAL REVENUE CODE, 53 STAT.
33.  SUCH EXPRESSIONS OF LEGISLATIVE POLICY HAVE WITHSTOOD CHALLENGE IN
THE COURTS.  LIBERTY WAREHOUSE CO. V. TOBACCO GROWERS, 276 U.S. 71. 
FN3  CONGRESS AND THE STATES HAVE SOMETIMES THOUGHT IT NECESSARY TO
CONTROL THE SUPPLY AND PRICE OF AGRICULTURAL COMMODITIES WITHIN THEIR
RESPECTIVE SPHERES OF JURISDICTION, AND THE CONSTITUTIONAL VALIDITY OF
THESE MEASURES HAS BEEN SUSTAINED.  MULFORD V. SMITH, 307 U.S. 38;
UNITED STATES V. ROCK ROYAL CO-OP., 307 U.S. 533; NEBBIA V. NEW YORK,
291 U.S. 502. 

AT THE CORE OF ALL THESE ENACTMENTS LIES A CONCEPTION OF PRICE AND
PRODUCTION POLICY FOR AGRICULTURE VERY DIFFERENT FROM THAT WHICH
UNDERLIES THE DEMANDS MADE UPON INDUSTRY AND COMMERCE BY ANTI-TRUST
LAWS.  FN4  THESE VARIOUS MEASURES ARE MANIFESTATIONS OF THE FACT THAT
IN OUR NATIONAL ECONOMY AGRICULTURE EXPRESSES FUNCTIONS AND FORCES
DIFFERENT FROM THE OTHER ELEMENTS IN THE TOTAL ECONOMIC PROCESS. 
CERTAINLY THESE ARE DIFFERENCES WHICH MAY BE ACTED UPON BY THE
LAWMAKERS.  THE EQUALITY AT WHICH THE "EQUAL PROTECTION" CLAUSE AIMS IS
NOT A DISEMBODIED EQUALITY.  THE FOURTEENTH AMENDMENT ENJOINS "THE
EQUAL PROTECTION OF THE LAWS," AND LAWS ARE NOT ABSTRACT PROPOSITIONS. 
THEY DO NOT RELATE TO ABSTRACT UNITS A, B AND C, BUT ARE EXPRESSIONS OF
POLICY ARISING OUT OF SPECIFIC DIFFICULTIES, ADDRESSED TO THE
ATTAINMENT OF SPECIFIC ENDS BY THE USE OF SPECIFIC REMEDIES.  THE
CONSTITUTION DOES NOT REQUIRE THINGS WHICH ARE DIFFERENT IN FACT OR
OPINION TO BE TREATED IN LAW AS THOUGH THEY WERE THE SAME.  AND SO WE
CONCLUDE THAT TO WRITE INTO LAW THE DIFFERENCES BETWEEN AGRICULTURE AND
OTHER ECONOMIC PURSUITS WAS WITHIN THE POWER OF THE TEXAS LEGISLATURE. 
CONNOLLY'S CASE HAS BEEN WORN AWAY BY THE EROSION OF TIME, AND WE ARE
OF OPINION THAT IT IS NO LONGER CONTROLLING. 

ANOTHER FEATURE OF TEXAS ANTI-TRUST LEGISLATION IS RELIED ON BY
TIGNER TO INVALIDATE THE CRIMINAL STATUTE UNDER WHICH HE IS BEING
PROSECUTED.  BEGINNING WITH THE FIRST ENACTMENT IN 1894, THE TEXAS ANTI
TRUST LAWS HAVE HAD A COMPLICATED AND CHECKERED HISTORY.  AT PRESENT
THERE ARE TWO STATUTES DIRECTED AT COMBINATION AND MONOPOLY - THE ONE
UNDER WHICH TIGNER WAS INDICTED, AND ANOTHER, SUBJECTING TO CIVIL
PENALTIES THE SAME CONDUCT AT WHICH THE CHALLENGED CRIMINAL LAW IS
AIMED.  TITLE 126, REVISED CIVIL STATUTES.  FROM SUCH CIVIL
PROCEEDINGS, WHICH THE ATTORNEY GENERAL INITIATES, NO EXEMPTION IS
GIVEN TO FARMERS AND STOCKMEN.  APPELLANT URGES THAT THE DIVERGENCE
BETWEEN CIVIL AND CRIMINAL LAWS RELATING TO THE SAME CONDUCT UNDERMINES
THE VALIDITY OF THE EXEMPTION IN THE CRIMINAL STATUTE AND THUS
INVALIDATES THE WHOLE OF IT.  THIS ARGUMENT IS BUT A MINOR VARIATION ON
APPELLANT'S MAIN THEME.  IT AMOUNTS TO A CLAIM THAT DIFFERENCES
SUBSTANTIAL ENOUGH TO PERMIT SUBSTANTIVE DIFFERENTIATION IN FORMULATING
LEGISLATIVE POLICY DO NOT PERMIT DIFFERENTIATION AS TO REMEDY. 

HOW TO EFFECTUATE POLICY - THE ADAPTATION OF MEANS TO LEGITIMATELY
SOUGHT ENDS - IS ONE OF THE MOST INTRACTABLE OF LEGISLATIVE PROBLEMS. 
WHETHER PROSCRIBED CONDUCT IS TO BE DETERRED BY QUI TAM ACTION OR
TRIPLE DAMAGES OR INJUNCTION, OR BY CRIMINAL PROSECUTION, OR MERELY BY
DEFENSE TO ACTIONS IN CONTRACT, OR BY SOME, OR ALL, OF THESE REMEDIES
IN COMBINATION, IS A MATTER WITHIN THE LEGISLATURE'S RANGE OF CHOICE. 
JUDGMENT ON THE DETERRENT EFFECT OF THE VARIOUS WEAPONS IN THE ARMORY
OF THE LAW CAN LAY LITTLE CLAIM TO SCIENTIFIC BASIS.  SUCH JUDGMENT AS
YET IS LARGELY A PROPHECY BASED ON MEAGER AND UNINTERPRETED
EXPERIENCE.  HOW EMPIRIC THE PROCESS IS OF ADJUSTING REMEDY TO POLICY,
IS SHOWN BY THE HISTORY OF ANTI-TRUST LAWS IN TEXAS AND ELSEWHERE.  THE
SHERMAN LAW ORIGINALLY EMPLOYED THE INJUNCTION AT THE SUIT OF THE
GOVERNMENT, PRIVATE ACTION FOR TRIPLE DAMAGES, CRIMINAL PROSECUTION AND
FORFEITURE.  LATER THE INJUNCTION WAS MADE AVAILABLE TO PRIVATE
SUITORS.  FN5  IN THE CASE OF COMBINATIONS OF COMMON CARRIERS THE
SHERMAN LAW IS QUALIFIED BY THE INTERSTATE COMMERCE ACT, KEOGH V.
CHICAGO & N.W. RY. CO., 260 U.S. 156, AND, IN THE CASE OF SHIPPING
COMBINATIONS, BY THE MERCHANT MARINE ACT, U.S. NAVIGATION CO. V. CUNARD
S.S. CO., 284 U.S. 474.  IN ITS OWN GROPING EFFORTS TO DEAL WITH THE
PROBLEM OF MONOPOLY, THE TEXAS LEGISLATURE HAS IN THE COURSE OF NEARLY
HALF A CENTURY INVOKED A DOZEN REMEDIES.  FN6  WHEN IOWA SUPERIMPOSED
UPON ITS GENERAL ANTI-TRUST LAW AN ADDITIONAL PENALTY IN THE CASE OF
FIRE INSURANCE COMBINATIONS, THIS COURT SUSTAINED THE VALIDITY OF THE
STATUTE.  CARROLL V. GREENWICH INSURANCE CO., 199 U.S. 401. 

LEGISLATION CONCERNING ECONOMIC COMBINATIONS PRESENTS PECULIAR
DIFFICULTIES IN THE FASHIONING OF REMEDIES.  THE SENSITIVENESS OF THE
ECONOMIC MECHANISM, THE RISKS OF INTRODUCING NEW EVILS IN TRYING TO
STAMP OUT OLD, FAMILIAR ONES, THE DIFFICULTIES OF PROOF WITHIN THE
CONVENTIONAL MODES OF PROCEDURE, THE EFFECT OF SHIFTING TIDES OF PUBLIC
OPINION - THESE AND MANY OTHER SUBTLE FACTORS MUST INFLUENCE
LEGISLATIVE CHOICE.  MOREOVER, THE WHOLE PROBLEM OF DETERRENCE IS
RELATED TO STILL WIDER CONSIDERATIONS AFFECTING THE TEMPER OF THE
COMMUNITY IN WHICH LAW OPERATES.  THE TRADITIONS OF A SOCIETY, THE
HABITS OF OBEDIENCE TO LAW, THE EFFECTIVENESS OF THE LAW-ENFORCING
AGENCIES, ARE ALL PECULIARLY MATTERS OF TIME AND PLACE.  THEY ARE THUS
MATTERS WITHIN LEGISLATIVE COMPETENCE.  TO SAY THAT THE LEGISLATURE OF
TEXAS MUST GIVE TO FARMERS COMPLETE IMMUNITY OR NONE AT ALL, IS TO SAY
THAT JUDGMENT ON THESE VEXING ISSUES PRECLUDES THE VIEW THAT, WHILE THE
DANGERS FROM COMBINATIONS OF FARMERS AND STOCKMEN ARE SO TENUOUS THAT
CIVIL REMEDIES SUFFICE TO SECURE DETERRENCE, THEY ARE SUBSTANTIAL
ENOUGH NOT TO WARRANT ENTIRE DISREGARD.  WE HOLD OTHERWISE.  HERE,
AGAIN, WE MUST BE MINDFUL NOT OF ABSTRACT EQUIVALENTS OF CONDUCT, BUT
OF CONDUCT IN THE CONTEXT OF ACTUALITY.  DIFFERENCES THAT PERMIT
SUBSTANTIVE DIFFERENTIATIONS ALSO PERMIT DIFFERENTIATIONS OF REMEDY. 
WE FIND NO CONSTITUTIONAL BAR AGAINST EXCLUDING FARMERS AND STOCKMEN
FROM THE CRIMINAL STATUTE AGAINST COMBINATION AND MONOPOLY, AND SO
HOLDING, WE CONCLUDE THAT THERE WAS LIKEWISE NO BAR AGAINST MAKING THE
EXEMPTION PARTIAL RATHER THAN COMPLETE.  AFFIRMED.    FN1  SEE 2 BEARD,
THE RISE OF AMERICAN CIVILIZATION, PP. 254-343; BUCK, THE GRANGER
MOVEMENT, PASSIM; HICKS, THE POPULIST REVOLT, PASSIM; SHELDON, POPULISM
IN THE OLD DOMINION, PP. 17-20.  COMPARE THE LETTER OF MR. JUSTICE
MILLER IN FAIRMAN, MR. JUSTICE MILLER AND THE SUPREME COURT, P. 67. 
FOR THE BACKGROUND OF THE TEXAS LEGISLATION SEE FINTY, ANTI-TRUST
LEGISLATION IN TEXAS, A COLLECTION OF ARTICLES PUBLISHED IN THE
GALVESTON NEWS DURING THE SUMMER OF 1916; NUTTING, THE TEXAS ANTI-TRUST
LAW:  A POST-MORTEM 14 TEX. L. REV. 293. 

FN2  SEE SEAGER AND GULICK, TRUST AND CORPORATION PROBLEMS, PP. 149
95, 339-85. 

FN3 THE STATE COURT CASES ARE COLLECTED IN UNITED STATES V. ROCK
ROYAL CO-OP., 307 U.S. 533, 563-64.  SEE HANNA, LAW OF COOPERATIVE
MARKETING ASSOCIATIONS, PP. 26-111.  COMPARE GERMAN ALLIANCE INS. CO.
V. LEWIS, 233 U.S. 389, 418; INTERNATIONAL HARVESTER CO. V. MISSOURI,
234 U.S. 199; AERO TRANSIT CO. V. GEORGIA COMM'N, 295 U.S. 285. 

FN4  SEE, FOR INSTANCE, THE FINDINGS AND DECLARATIONS OF POLICY
EMBODIED IN THE AGRICULTURAL ADJUSTMENT ACT OF 1938, 52 STAT. 31, 120,
202, 215, 586, 775.  COMPARE SEAGER AND GULICK, OP. CIT. SUPRA, NOTE 2,
PP. 322-23; BLACK, AGRICULTURAL REFORM IN THE UNITED STATES, PP. 1-61,
337-49; NOURSE, DAVIS AND BLACK, THREE YEARS OF THE AGRICULTURAL
ADJUSTMENT ADMINISTRATION, PASSIM; NOURSE, MARKETING AGREEMENTS UNDER
THE A.A.A., PP. 315-49.  COMPARE, AS TO RAILROAD AND EXPRESS
CONSOLIDATIONS, SEC. 5(8) OF THE INTERSTATE COMMERCE ACT AS AMENDED, 41
STAT. 456, 482, 49 U.S.C. SEC. 5(8); AS TO BITUMINOUS COAL, SEE SEC. 4,
I (D) OF THE BITUMINOUS COAL ACT OF 1937, 50 STAT. 72, 77. 

FN5  SEE THE SHERMAN LAW, AS AMENDED, AND SUPPLEMENTARY ENACTMENTS,
IN 15 U.S.C. SECS. 1, 2, 4, 6, 9, 11, 15, 16, 21, 23, 25, 26. 

FN6  SEE NUTTING OP. CIT. SUPRA, NOTE 1, PP. 296-97.  FOR THE
REMEDIES NOW PREVAILING, SEE TEXAS PENAL CODE, ART. 1635, 1637, 1638;
REVISED CIVIL STATUTES, ART. 7428-7437. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE JUDGMENT BELOW SHOULD
BE REVERSED. 
..END :




















U.S. V. SOCONY-VACUUM OIL CO., 310 U.S. 150 


NO. 346.  ARGUED FEBRUARY 5, 6, 1940.  - DECIDED MAY 6, 1940.  - 105
F.2D 809, REVERSED. 


1.  AGREEMENTS TO FIX PRICES IN INTERSTATE COMMERCE ARE UNLAWFUL PER
SE UNDER THE SHERMAN ACT; AND NO SHOWING OF SO-CALLED COMPETITIVE
ABUSES OR EVILS WHICH THE AGREEMENTS WERE DESIGNED TO ELIMINATE OR
ALLEVIATE MAY BE INTERPOSED AS A DEFENSE.  PP. 210, 218. 

2.  NUMEROUS OIL COMPANIES AND INDIVIDUALS WERE CONVICTED UNDER AN
INDICTMENT ALLEGING THAT, IN VIOLATION OF SEC. 1 OF THE SHERMAN ACT,
THEY CONSPIRED TO RAISE AND MAINTAIN SPOT MARKET PRICES OF GASOLINE,
AND PRICES TO JOBBERS AND CONSUMERS IN THE "MIDWESTERN AREA," EMBRACING
MANY STATES, BY BUYING UP "DISTRESS" GASOLINE ON THE SPOT MARKETS AND
ELIMINATING IT AS A MARKET FACTOR.  IN SUPPORT OF ALLEGATIONS OF THE
INDICTMENT, THERE WAS EVIDENCE TO PROVE THAT THE DEFENDANTS, WITH
INTENT TO RAISE AND MAINTAIN PRICES, DEVISED AND CARRIED OUT AN
ORGANIZED PROGRAM OF REGULARLY ASCERTAINING THE AMOUNTS OF SURPLUS SPOT
MARKET GASOLINE, OF ASSIGNING ITS SELLERS TO BUYERS WHO WERE IN THE
COMBINATION, AND OF PURCHASING IT AT FAIR GOING MARKET PRICES, AND THAT
THIS PROCESS, BY REMOVING PART OF THE SPOT MARKET SUPPLY, WAS AT LEAST
A CONTRIBUTING FACTOR IN STABILIZING THE SPOT MARKET AND THEREBY
CAUSING AN INCREASE OF PRICES, SO THAT JOBBERS AND CONSUMERS IN THE
MIDWESTERN AREA PAID MORE FOR THEIR GASOLINE THAN THEY WOULD HAVE PAID
BUT FOR THE CONSPIRACY, THEIR PRICES BEING GEARED TO SPOT MARKET
PRICES.  HELD: 

(1)  IT IS IMMATERIAL TO THE QUESTION OF GUILT THAT OTHER FACTORS
ALSO MAY HAVE CONTRIBUTED TO THE RISE AND STABILITY OF THE MARKETS AND
THAT COMPETITION ON THE SPOT MARKETS WAS NOT ENTIRELY ELIMINATED.  P.
219. 

(2)  THE ELIMINATION OF SO-CALLED COMPETITIVE EVILS IS NO LEGAL
JUSTIFICATION FOR SUCH BUYING PROGRAMS.  SO FAR AS PRICE-FIXING
AGREEMENTS ARE CONCERNED THE ACT ESTABLISHES ONE UNIFORM RULE
APPLICABLE TO ALL INDUSTRIES ALIKE.  P. 220. 

(3)  EVEN THOUGH THE MEMBERS OF THE PRICE-FIXING GROUP WERE IN NO
POSITION TO CONTROL THE MARKET, YET TO THE EXTENT THAT THEY RAISED,
LOWERED, FIXED, PEGGED, OR STABILIZED PRICES THEY WOULD BE DIRECTLY
INTERFERING WITH THE FREE PLAY OF MARKET FORCES.  P. 221. 

(4)  THERE WAS NO ERROR IN THE REFUSAL TO CHARGE THAT, IN ORDER TO
CONVICT, THE JURY MUST FIND THAT THE RESULTANT PRICES WERE RAISED AND
MAINTAINED AT "HIGH, ARBITRARY AND NON-COMPETITIVE LEVELS."  A CHARGE
IN THE INDICTMENT TO THAT EFFECT WAS SURPLUSAGE.  P. 222. 

(5)  NOR IS IT IMPORTANT THAT THE PRICES PAID BY THE COMBINATION WERE
NOT FIXED IN THE SENSE OF BEING UNIFORM AND INFLEXIBLE.  P. 222. 

(6)  A COMBINATION FORMED FOR THE PURPOSE AND WITH THE EFFECT OF
RAISING, DEPRESSING, FIXING, PEGGING, OR STABILIZING THE PRICE OF A
COMMODITY IN INTERSTATE OR FOREIGN COMMERCE IS ILLEGAL PER SE UNDER THE
ACT.  P. 223. 

(7)  WHERE THE MEANS FOR PRICE-FIXING ARE PURCHASES OF A PART OF THE
SUPPLY OF THE COMMODITY FOR THE PURPOSE OF KEEPING IT FROM HAVING A
DEPRESSIVE EFFECT ON THE MARKET, POWER TO FIX PRICES MAY BE FOUND TO
EXIST THOUGH THE COMBINATION DOES NOT CONTROL A SUBSTANTIAL PART OF THE
COMMODITY.  P. 224. 

(8)  PRICE-FIXING AGREEMENTS MAY HAVE EFFECTIVE INFLUENCE OVER THE
MARKET, AND UTILITY TO MEMBERS OF THE CONSPIRACY GROUP, THOUGH THE
POWER POSSESSED OR EXERTED BY THE COMBINATION FALLS FAR SHORT OF
DOMINATION AND CONTROL.  THE SHERMAN ACT IS NOT CONCERNED SOLELY WITH
MONOPOLY POWER.  P. 224. 

(9)  PROOF THAT A COMBINATION WAS FORMED FOR THE PURPOSE OF FIXING
PRICES, AND THAT IT CAUSED THEM TO BE FIXED OR CONTRIBUTED TO THAT
RESULT, IS PROOF OF THE COMPLETION OF A PRICE-FIXING CONSPIRACY UNDER
SEC. 1 OF THE ACT.  P. 224. 

(10)  A CONSPIRACY TO FIX PRICES VIOLATES SEC. 1 OF THE ACT THOUGH NO
OVERT ACT IS SHOWN, THOUGH IT IS NOT ESTABLISHED THAT THE CONSPIRATORS
HAD THE MEANS AVAILABLE FOR ACCOMPLISHMENT OF THEIR OBJECTIVE, AND
THOUGH THE CONSPIRACY EMBRACED BUT A PART OF THE INTERSTATE OR FOREIGN
COMMERCE IN THE COMMODITY.  P. 225N. 

(11)  UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT, 48 STAT. 195, A
PRICE-FIXING AGREEMENT COULD BE EXEMPTED FROM THE PROVISIONS OF THE
SHERMAN ACT ONLY THROUGH THE CODE MACHINERY WITH THE APPROVAL OF THE
PRESIDENT AS PROVIDED IN SECS. 3(A) AND 5; MERE KNOWLEDGE, ACQUIESCENCE
OR TACIT APPROVAL BY GOVERNMENT EMPLOYEES WOULD NOT SUFFICE.  PP. 225
227. 

(12)  A PRACTICE CONTRARY TO THE SHERMAN ACT, EVEN IF APPROVED UNDER
THE NATIONAL INDUSTRIAL RECOVERY ACT, BECAME UNLAWFUL WHEN CONTINUED
AFTER THE EXPIRATION OF THE RECOVERY ACT.  P. 227. 

(13)  THE FACT THAT THE BUYING PROGRAM IN THIS CASE MAY HAVE BEEN
CONSISTENT WITH THE GENERAL OBJECTIVES OF THE NATIONAL INDUSTRIAL
RECOVERY ACT IS IRRELEVANT TO ITS LEGALITY UNDER THE SHERMAN ACT, WHERE
THE METHOD PROVIDED BY CONGRESS FOR ALLEVIATING THE PENALTIES OF THE
SHERMAN ACT WAS NOT FOLLOWED.  P. 227. 

(14)  OFFERS OF PROOF BY DEFENDANTS TO SHOW THAT BY THEIR BUYING
PROGRAM THEY HAD NOT RAISED SPOT MARKET PRICES OF GASOLINE TO AN
ARTIFICIAL, NON-COMPETITIVE LEVEL, HELD PROPERLY DENIED AS IMMATERIAL. 
P. 229. 

(15)  OFFERS OF PROOF BY DEFENDANTS TO ESTABLISH AND EVALUATE OTHER
CONTRIBUTING CAUSES FOR PRICE RISE AND MARKET STABILITY DURING THE
INDICTMENT PERIOD, HELD PROPERLY DENIED, AS CUMULATIVE AND COLLATERAL. 
A TRIAL COURT HAS A WIDE RANGE OF DISCRETION IN THE EXCLUSION OF SUCH
EVIDENCE.  P. 229. 

3.  IN A TRIAL UNDER THE SHERMAN ACT, WHERE MUCH EVIDENCE HAD BEEN
GIVEN OF GENERAL ECONOMIC CONDITIONS BEFORE AND DURING THE INDICTMENT
PERIOD, THE DEFENSE OFFERED FURTHER EVIDENCE OF MARKET CONDITIONS
ANTEDATING THAT PERIOD, INTRODUCTION OF WHICH WOULD HAVE COMPLICATED
THE CASE, CONFUSED THE JURY POSSIBLY, AND PROTRACTED AN ALREADY LENGTHY
TRIAL, HELD THAT REFUSAL OF THE OFFERS WAS NOT GROUND FOR A NEW TRIAL,
MATTERS OF SUBSTANCE NOT BEING AFFECTED.  P. 229. 

4.  USE OF GRAND JURY TESTIMONY FOR THE PURPOSE OF REFRESHING THE
RECOLLECTION OF A WITNESS RESTS IN THE SOUND DISCRETION OF THE TRIAL
JUDGE AND NO IRON-CLAD RULE REQUIRES THAT OPPOSING COUNSEL BE SHOWN THE
GRAND JURY TRANSCRIPT WHERE IT IS NOT SHOWN THE WITNESS AND WHERE SOME
APPROPRIATE PROCEDURE IS ADOPTED TO PREVENT ITS IMPROPER USE.  PP. 231,
233. 

5.  GRAND JURY TESTIMONY IS ORDINARILY CONFIDENTIAL.  BUT AFTER THE
GRAND JURY'S FUNCTIONS ARE ENDED, DISCLOSURE IS WHOLLY PROPER WHERE THE
ENDS OF JUSTICE REQUIRE IT.  PP. 233-234. 

6.  PERMISSION TO USE GRAND JURY TESTIMONY TO REFRESH THE MEMORIES OF
WITNESSES IN A CRIMINAL CASE IS NOT GROUND FOR A NEW TRIAL, EVEN IF
ERRONEOUS, WHERE IT WAS CLEARLY NOT PREJUDICIAL AND DID NOT AFFECT
SUBSTANTIAL RIGHTS OF THE DEFENDANT.  JUD.  CODE, SEC. 269.  P. 235. 

7.  IN THE ABSENCE OF EXCEPTIONAL CIRCUMSTANCES, IMPROPER REMARKS
MADE BY A PROSECUTING ATTORNEY IN HIS ARGUMENT TO THE JURY IN A
CRIMINAL TRIAL, ARE NOT GROUND FOR A NEW TRIAL IF THEY WERE NOT
OBJECTED TO AT THE TIME.  PP. 237, 238-239. 

8.  IT IS NOT IMPROPER IN A SHERMAN ACT CASE TO DISCUSS CORPORATE
POWER, ITS USE AND ABUSE, RELEVANTLY TO THE ISSUES; FOR THE SUBJECT IS
MATERIAL TO THE PHILOSOPHY OF THAT ACT, AND ITS PURPOSES AND OBJECTIVES
ARE CLEARLY LEGITIMATE SUBJECTS FOR DISCUSSION BEFORE THE JURY.  P.
239. 

9.  APPEALS TO CLASS PREJUDICE IN ARGUMENT TO A JURY ARE HIGHLY
IMPROPER AND CAN NOT BE CONDONED AND TRIAL COURTS SHOULD EVER BE ALERT
TO PREVENT THEM.  P. 239. 

10.  ALTHOUGH SOME OF THE REMARKS MADE TO THE JURY BY GOVERNMENT
COUNSEL IN ARGUMENT OF THIS CASE APPEALED TO CLASS PREJUDICE, WERE
UNDIGNIFIED AND INTEMPERATE, AND DID NOT COMPORT WITH THE STANDARDS OF
PROPRIETY EXPECTED OF A PROSECUTOR, THEY ARE, IN THE PARTICULAR
CIRCUMSTANCES, NOT REGARDED AS PREJUDICIAL BUT AS MINOR ABERRATIONS IN
A PROLONGED TRIAL OF A STRONG CASE WHICH COULD NOT HAVE INFLUENCED THE
MINDS OF JURORS.  P. 239. 

11.  STATEMENTS MADE IN ARGUMENT TO THE JURY BY GOVERNMENT COUNSEL IN
A PROSECUTION UNDER THE SHERMAN ACT TO THE EFFECT THAT IT WAS THE WISH
AND DESIRE OF THE HIGHEST OFFICIALS IN THE GOVERNMENT TO HAVE THE
DEFENDANTS CONVICTED, HELD NOT GROUND FOR A NEW TRIAL, BECAUSE THE
DEFENDANTS HAD SOUGHT TO JUSTIFY THEIR ACTIVITIES AS DONE WITH
GOVERNMENT APPROVAL AND BECAUSE THE STATEMENTS WERE BUT CASUAL EPISODES
IN A LONG SUMMATION AND NOT AT ALL REFLECTIVE OF THE QUALITY OF THE
ARGUMENT AS A WHOLE.  PP. 241-242. 

12.  ASSERTIONS OF PERSONAL KNOWLEDGE, MADE IN ARGUMENT TO THE JURY
BY GOVERNMENT COUNSEL, HELD NOT PREJUDICIAL, WHERE THEY RELATED TO A
MATTER IRRELEVANT TO THE CASE AND, UPON OBJECTION, WERE WITHDRAWN AND
THE JURY INSTRUCTED TO DISREGARD THEM.  P. 242. 

13.  THE GRANTING OF A NEW TRIAL TO SOME OF THE DEFENDANTS CONVICTED
OF A CONSPIRACY DOES NOT REQUIRE THAT A NEW TRIAL BE GRANTED TO THE
OTHERS, WHERE PARTICIPATION BY THE FORMER WAS NOT NECESSARY TO THE
EXISTENCE OF THE CRIME CHARGED AND THE JURY WAS INSTRUCTED THAT IT
COULD CONVICT ANY OF THE DEFENDANTS FOUND TO HAVE BEEN MEMBERS OF THE
COMBINATION AND THAT IT NEED NOT CONVICT ALL OR NONE.  PP. 243, 246. 

14. IN A SHERMAN ACT CASE, AS IN OTHER CONSPIRACY CASES, THE GRANT OF
A NEW TRIAL TO SOME DEFENDANTS AND ITS DENIAL TO OTHERS IS NOT PER SE
REVERSIBLE ERROR.  AFTER THE JURY'S VERDICT HAS BEEN SET ASIDE AS
RESPECTS SOME OF THE ALLEGED CO-CONSPIRATORS, THOSE REMAINING CAN NOT
SEIZE ON THAT ACTION AS GROUND FOR THE GRANTING OF A NEW TRIAL TO THEM,
UNLESS THEY CAN ESTABLISH THAT SUCH ACTION WAS SO CLEARLY PREJUDICIAL
TO THEM THAT THE DENIAL OF THEIR MOTIONS CONSTITUTED A PLAIN ABUSE OF
DISCRETION.  P. 247. 

15.  AS A GENERAL RULE, NEITHER THIS COURT NOR THE CIRCUIT COURT OF
APPEALS WILL REVIEW THE ACTION OF A FEDERAL TRIAL COURT IN GRANTING OR
DENYING A MOTION FOR A NEW TRIAL FOR ERROR OF FACT, SINCE SUCH ACTION
IS A MATTER WITHIN THE DISCRETION OF THE TRIAL COURT.  P. 247. 

16.  A DENIAL OF A MOTION FOR A NEW TRIAL ON THE GROUND THAT THE
VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE IS NOT SUBJECT TO
REVIEW.  P. 248. 

17.  WHERE AN INDICTMENT CHARGES VARIOUS MEANS BY WHICH A CONSPIRACY
IS TO BE EFFECTUATED, NOT ALL OF THEM NEED BE PROVED.  P. 249. 

18.  WHERE A PRICE-FIXING CONSPIRACY, VIOLATING THE SHERMAN ACT,
EMBRACED, AT LEAST BY CLEAR IMPLICATION, THE MAKING OF SALES AT
ADVANCED PRICES TO JOBBERS AND CONSUMERS IN A WIDE AREA, HELD THAT
PROSECUTION WOULD LIE IN A JUDICIAL DISTRICT WITHIN THAT AREA AND
WITHIN WHICH SUCH SALES WERE MADE BY ANY OF THE CONSPIRATORS, THOUGH
THE CONSPIRACY WAS FORMED ELSEWHERE.  P. 250. 

19.  CONSPIRACIES UNDER THE ACT ARE NOT DEPENDENT ON THE DOING OF ANY
ACT OTHER THAN THE ACT OF CONSPIRING, AS A CONDITION OF LIABILITY.  P.
252. 

UNITED STATES V. SOCONY-VACUUM OIL CO., INC. ET AL.* 

*TOGETHER WITH NO. 347, SOCONY-VACUUM OIL CO., INC. ET AL. V. UNITED
STATES, ALSO ON WRIT OF CERTIORARI (308 U.S. 540) TO THE CIRCUIT COURT
OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 308 U.S. 540, ON CROSS-PETITIONS, TO REVIEW THE RULINGS
OF THE COURT BELOW IN A CASE INVOLVING THE INDICTMENT AND CONVICTION OF
CORPORATIONS AND INDIVIDUALS FOR A CONSPIRACY IN VIOLATION OF SEC. 1 OF
THE SHERMAN ANTI-TRUST ACT.  THE OPINION OF THE DISTRICT COURT IS
REPORTED IN 23 F.SUPP.  937. 

A COMBINATION FORMED FOR THE PURPOSE OF CONTROLLING THE MARKET PRICE
OF A COMMODITY AND POSSESSING THE POWER TO MAKE ITS CONTROL EFFECTIVE
RAISES SUCH DANGER OF EVIL CONSEQUENCES WHICH THE SHERMAN ACT WAS
INTENDED TO PREVENT, THAT IT FALLS WITHIN THE DIRECT CONDEMNATION OF
THE STATUTE AND CAN NOT BE REMOVED BY COLLATERAL CONSIDERATIONS URGED
IN JUSTIFICATION OF THE RESTRAINT.  UNITED STATES V. TRENTON POTTERIES
CO., 273 U.S. 392. 

WHILE THE ACT HAS BEEN INTERPRETED AS FORBIDDING ONLY UNREASONABLE
RESTRAINTS OF TRADE AND WHILE THIS CONCEPT IS OF VALUE IN MANY
SITUATIONS WHERE THE NATURE OF THE RESTRAINT IS SUCH THAT THE
APPLICATION OF THE STATUTE IS DOUBTFUL, THE CONCEPT DOES NOT COMPEL THE
CONCLUSION THAT THERE ARE NO RESTRAINTS WHICH IPSO FACTO COME WITHIN
THE CONDEMNATION OF THE ACT. 

SINCE THE PRICE CONTROL EXERCISED BY THE DEFENDANTS ENTAILED THE SAME
CONSEQUENCES AS THOSE FLOWING FROM AN AGREEMENT BY A DOMINANT GROUP IN
AN INDUSTRY TO SELL AT UNIFORM MINIMUM PRICES, THE FACT THAT THE
MACHINERY OF PRICE CONTROL WAS DIFFERENT IS IMMATERIAL. 

THE COURT BELOW ASSUMED THAT THE COMBINATION WAS TO ELIMINATE A
COMPETITIVE EVIL, AND IT SAID THAT THE TRENTON POTTERIES CASE DID NOT
BAR DEFENSE OF THE REASONABLENESS OF THE RESTRAINT UPON THIS GROUND. 
THE FORMER CONCLUSION IS INCONSISTENT WITH THE JURY'S FACTUAL
DETERMINATION, AND THE LATTER RESULTED FROM FAILURE TO APPRECIATE THAT
IN THE TRENTON POTTERIES CASE DEFENSE OF REASONABLENESS UPON THE VERY
GROUND MENTIONED WAS PRESENTED AND REJECTED. 

THE BELIEF THAT THE PRESENT COMBINATION DESTROYED COMPETITION ONLY AS
TO THE GASOLINE WHICH THE DEFENDANTS PURCHASED FROM THE INDEPENDENT
REFINERS IS ERRONEOUS.  THE JURY'S FINDINGS, MADE UPON AMPLE EVIDENCE,
THAT THE DEFENDANTS INTENDED TO, POSSESSED THE POWER TO, AND DID, RAISE
AND FIX SPOT MARKET PRICES, ESTABLISH THAT THE PURPOSE AND EFFECT OF
THE COMBINATION WAS TO RENDER THE ENTIRE SPOT MARKET A RIGGED,
ARTIFICIAL, AND NONCOMPETITIVE MARKET, IN WHICH PRICE WAS NOT THE
PRODUCT OF A FREE PLAY OF COMPETITIVE FORCES, BUT WAS THE PRODUCT OF
PURPOSEFUL CONTROL, ATTAINED THROUGH COMBINATION.  THE DESTRUCTION OF
COMPETITION WAS THEREFORE AS WIDE AND AS BROAD AS THE MARKET ITSELF. 

IN A LENGTHY TRIAL, INVOLVING A WIDE RANGE OF INQUIRY AND A GREAT
MASS OF EVIDENCE, A NEW TRIAL WILL NOT BE ORDERED ON TECHNICAL ERRORS
AS TO THE ADMISSIBILITY OF EVIDENCE WHICH DO NOT AFFECT MATTERS OF
SUBSTANCE. 

EXCLUDED EVIDENCE RELATING TO CONDITIONS IN THE PETROLEUM INDUSTRY
WAS MERELY CUMULATIVE.  EXCLUDED EVIDENCE RELATING TO ENCOURAGEMENT OF
OR ACQUIESCENCE IN DEFENDANT'S ACTIVITIES BY GOVERNMENT OFFICERS WAS
INDIRECT, REMOTE, AND CIRCUMSTANTIAL, AND CONCERNED A LARGELY
IRRELEVANT ISSUE.  EXCLUDED EVIDENCE OFFERED TO SHOW THAT GASOLINE
PRICES DURING THE CONSPIRACY PERIOD WERE NOT ARTIFICIALLY HIGH OR
NONCOMPETITIVE WAS ONLY REMOTELY RELATED TO THE REAL ISSUES IN THE CASE
AND ITS ADMISSION WOULD HAVE RAISED COLLATERAL FACTUAL ISSUES TENDING
TO CONFUSE THE JURY AND UNDULY PROLONG THE TRIAL. 

ALL OF THE GOVERNMENT'S IMPORTANT WITNESSES WERE CLOSELY ALLIED WITH
THE CORPORATE DEFENDANTS AND WERE EVASIVE AND HOSTILE.  OVER 84 PER
CENT. OF THE ATTEMPTS TO REFRESH THEIR RECOLLECTION BY REFERENCE TO
GRAND JURY TESTIMONY FAILED, AND NO AFFIRMATIVE TESTIMONY OF ANY
IMPORTANCE WAS ELICITED IN THIS WAY.  REFUSAL TO ALLOW DEFENSE COUNSEL
TO INSPECT THE GRAND JURY TRANSCRIPT WAS NOT REVERSIBLE ERROR. 

ATTEMPTED REFRESHMENT BY READING FROM A TRANSCRIPT NOT AUTHENTICATED
WAS NOT ERROR.  THE TRIAL COURT DULY WARNED THE JURY TO IGNORE THE
GRAND JURY TESTIMONY AND IT EXERCISED CLOSE SUPERVISION OVER THE MANNER
IN WHICH THIS TESTIMONY WAS USED. 

IT IS IMMATERIAL THAT THE GRAND JURY TESTIMONY WAS NOT STRICTLY
CONTEMPORANEOUS WITH THE EVENTS TO WHICH IT RELATED. 

THE CULLING FROM ARGUMENT OF GREAT LENGTH OF THE REMARKS MOST LIKELY
TO APPEAR OBJECTIONABLE AND THE ASSEMBLAGE OF THESE REMARKS, ISOLATED
FROM THEIR CONTEXT, GIVE A TOTALLY MISLEADING IMPRESSION OF THE EFFECT
PRODUCED UPON THE JURY BY THE ARGUMENT AS A WHOLE.  CLEARLY THERE WAS
NOT HERE THAT "PRONOUNCED AND PERSISTENT" MISCONDUCT OF COUNSEL WHICH,
AT LEAST IF THE EVIDENCE AGAINST THE DEFENDANT WAS WEAK, WILL BE
ASSUMED TO HAVE PREJUDICED THE CAUSE OF THE ACCUSED. 

SUBSTANTIALLY ALL OF THE REMARKS NOW ALLEGED TO BE PREJUDICIAL EITHER
WERE NOT OBJECTED TO AT THE TIME THEY WERE MADE OR CORRECTIVE ACTION
WAS TAKEN BY THE TRIAL COURT. 

WHEN PRODUCERS AGREE TO SELL THEIR PRODUCT AT UNIFORM PRICES, THEIR
SALES ARE ACTS IN FURTHERANCE OF THE CONSPIRACY AND GIVE THE COURT IN A
DISTRICT WHERE SALES ARE MADE JURISDICTION TO TRY THE OFFENSE.  UNITED
STATES V. TRENTON POTTERIES CO., 273 U.S. 392, 403-404.  THE
DEFENDANTS' SALES IN THE TRIAL DISTRICT AT THE ARTIFICIALLY RAISED AND
MAINTAINED PRICES ARE LIKEWISE ACTS IN FURTHERANCE OF THIS CONSPIRACY
AND GAVE THE COURT THERE JURISDICTION TO TRY THE OFFENSE. 

THE CHARGE OF THE INDICTMENT AGAINST RESPONDENTS IS SEPARATE FROM,
AND INDEPENDENT OF, THE CHARGE AGAINST THE TRADE JOURNAL DEFENDANTS,
THAT THEY GUILTILY PARTICIPATED BY PUBLISHING FALSE SPOT MARKET
PRICES.  THIS CHARGE CONSTITUTES ONLY A SUBORDINATE MEANS FOR THE
EFFECTUATION OF THE CONSPIRACY AND IS A NONESSENTIAL ALLEGATION SINCE
SEVERAL OTHER MEANS WERE ALLEGED AND PROVED. 

THE PROGRAM FOR CONCERTED BUYING BY MAJORS OF GASOLINE OF INDEPENDENT
REFINERS IS THE PRINCIPAL MEANS FOR EFFECTUATING THE CONSPIRACY SET
FORTH IN THE INDICTMENT. 

THERE WAS NO MATERIAL VARIANCE BETWEEN THE INDICTMENT AND THE PROOF. 

THE DISTRICT COURT'S AWARD OF A NEW TRIAL TO ANOTHER CORPORATE
DEFENDANT DID NOT HAVE THE EFFECT OF RETROACTIVELY INVALIDATING THE
JURY'S VERDICT AGAINST RESPONDENTS.  THE DISTRICT COURT DENIED STANDARD
OF INDIANA'S MOTION FOR A DIRECTED VERDICT.  ITS MOTION FOR A NEW TRIAL
WAS GRANTED UPON THE GROUND THAT THERE WAS "GOOD REASON TO BELIEVE"
THAT IT HAD NOT HAD "AN ADEQUATE SEPARATE CONSIDERATION" OF ITS
DEFENSE.  THESE RULINGS CONSTITUTED AN ADJUDICATION THAT THE EVIDENCE
WAS SUFFICIENT TO WARRANT THE JURY IN FINDING THAT STANDARD OF INDIANA
WAS A PARTY TO THE CONSPIRACY.  IT FOLLOWS, THEREFORE, THAT WHEN THE
JURY, IN PASSING UPON THE QUESTION OF THE POWER OF THE DEFENDANTS TO
RAISE AND FIX PRICES, DID SO IN THE LIGHT OF STANDARD OF INDIANA BEING
A PARTY TO THE CONSPIRACY, THE JURY'S DETERMINATION OF THE ISSUE OF
POWER WAS MADE ON THE BASIS OF ADEQUATE AND SUFFICIENT EVIDENCE AS TO
ALL MATTERS INVOLVED IN ITS DETERMINATION OF THIS ISSUE AND THE JURY'S
DETERMINATION WAS NOT ONLY FREE FROM FUNDAMENTAL ERROR, IT WAS FREE
FROM ERROR OF ANY KIND. 

THE GROUND UPON WHICH STANDARD OF INDIANA WAS GRANTED A NEW TRIAL
WOULD SEEM TO BE A DOUBTFUL ONE AND IT WAS CERTAINLY ONE WHICH INVOLVED
EXERCISE OF THE DISCRETION VESTED IN TRIAL COURTS IN PASSING UPON
MOTIONS FOR NEW TRIAL.  SINCE RESPONDENTS' CLAIM TO A NEW TRIAL RESTS
ON THE FACT THAT THE DISTRICT COURT DETERMINED THAT STANDARD OF INDIANA
WAS ENTITLED TO A NEW TRIAL AND SINCE THIS WAS A PURELY DISCRETIONARY
RULING, RESPONDENTS' CLAIM TO A NEW TRIAL, WHICH CAN NOT BE SUPERIOR TO
THE CLAIM ON WHICH IT RESTS, MUST LIKEWISE LIE WITHIN THE REALM OF
DISCRETION.  NOTHING IS BETTER SETTLED THAN THAT THE EXERCISE OF THE
TRIAL COURT'S DISCRETION IN PASSING UPON A MOTION FOR A NEW TRIAL WILL
NOT BE REVIEWED BY AN APPELLATE COURT UNLESS THE TRIAL COURT
ERRONEOUSLY CONCLUDED THAT IT DID NOT HAVE JURISDICTION OF THE MOTION
OR OF THE GROUNDS ADVANCED IN SUPPORT THEREOF. 

RESPONDENTS DID NOT PRESENT TO THE DISTRICT COURT THIS GROUND UPON
WHICH THEY NOW URGE THAT THEY ARE ENTITLED TO NEW TRIALS.  THEIR
FAILURE BARS THEM FROM OBTAINING REVIEW BY AN APPELLATE COURT. 

ON NO LESS THAN TWELVE DIFFERENT OCCASIONS THE TRIAL COURT INSTRUCTED
THE JURY TO RETURN VERDICTS OF GUILTY IF IT FOUND THAT THE RESPONDENTS
HAD CONTRIBUTED IN ANY DEGREE TO THE RISE IN GASOLINE PRICES.  IT WILL
BE NOTED THAT THESE INSTRUCTIONS ARE NOT CONCERNED WITH WHETHER THE
RESPONDENTS MAINTAINED PRICES AT CONTROLLED LEVELS, OR WHETHER THEY
SUBSTITUTED AN AGREED-ON PRICE FOR A COMPETITIVE PRICE.  THE SOLE TEST
OF LEGALITY WHICH THE INSTRUCTIONS LAY DOWN IS WHETHER THE PURPOSE OR
EFFECT OF THE RESPONDENTS' ACTS WAS TO RAISE PRICES TO ANY EXTENT. 

THE GOVERNMENT CONCEDES THAT "THE DEFENDANTS  ...  OFFERED EVIDENCE
DESIGNED TO SHOW (1) THAT THEY DID NOT COMBINE TOGETHER FOR THE PURPOSE
OF CONTROLLING PRICES; (2) THAT THEIR PURCHASING ACTIVITIES WERE
CONFINED TO DISTRESS MATERIAL, THE REMOVAL OF WHICH DID NOT SUPPRESS
NORMAL COMPETITION ON THE SPOT MARKETS; ...  "  OBVIOUSLY, THE
ELIMINATION OF A COMPETITIVE ABUSE SUCH AS DISTRESS GASOLINE MAY TEND
TO STABILIZE THE INDUSTRY AND TO PRODUCE FAIRER PRICE LEVELS.  THE
INSTRUCTIONS OF THE TRIAL COURT, THEREFORE, REQUIRED A FINDING OF
GUILTY EVEN THOUGH THE JURY BELIEVED THAT THE RESPONDENTS' ACTIVITIES
HAD BEEN LIMITED TO THE ELIMINATION OF DISTRESS GASOLINE AND THAT THE
REMOVAL OF SUCH GASOLINE "DID NOT SUPPRESS NORMAL COMPETITION ON THE
SPOT MARKETS." 

THIS COURT HAS REPEATEDLY HELD THAT CONCERTED ACTION TO ELIMINATE
ABUSES WHICH DISTORT THE NORMAL PLAY OF COMPETITION IS NOT TO BE
CONDEMNED MERELY BECAUSE THE PURPOSE OR EFFECT OF THE AGREEMENT MAY BE
TO STABILIZE OR RAISE PRICES.  UNITED STATES V. AMERICAN TOBACCO CO.,
221 U.S. 106; UNITED STATES V. UNION PACIFIC RAILROAD CO., 226 U.S. 61;
NASH V. UNITED STATES, 299 U.S. 373, 376; AMERICAN COLUMN & LUMBER CO.
V. UNITED STATES, 257 U.S. 377; CHARLES A. RAMSAY CO. V. ASSOCIATED
BILL POSTERS, 260 U.S. 501; STANDARD OIL CO. V. UNITED STATES, 221 U.S.
1; MAPLE FLOORING MANUFACTURERS ASSN. V. UNITED STATES, 268 U.S. 563;
CEMENT MANUFACTURERS PROTECTIVE ASSN. V. UNITED STATES, 268 U.S. 588,
603, 604; CHICAGO BOARD OF TRADE V. UNITED STATES, 246 U.S. 231, 238;
WINDOW GLASS MFRS.  ASSN.  V. UNITED STATES, 263 U.S. 403, 413;
STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163, 175, 179; APPALACHIAN
COALS V. UNITED STATES, 288 U.S. 344. 

THIS COURT HAS HELD THAT THE LEGALITY OF A COMBINATION SUCH AS IS HERE
PRESENTED CAN BE DETERMINED ONLY IN THE LIGHT OF EVIDENCE SHOWING "THE
FACTS PECULIAR TO THE BUSINESS TO WHICH THE RESTRAINT IS APPLIED; ITS
CONDITION BEFORE AND AFTER THE RESTRAINT WAS IMPOSED; THE NATURE OF THE
RESTRAINT, AND ITS EFFECT, ACTUAL OR PROBABLE.  THE HISTORY OF THE
RESTRAINT, THE EVIL BELIEVED TO EXIST, THE REASON FOR ADOPTING THE
PARTICULAR REMEDY, THE PURPOSE OR END SOUGHT TO BE ATTAINED ...  "
CHICAGO BOARD OF TRADE V. UNITED STATES, 246 U.S. 231, 238. 

THE TRIAL COURT IN THIS CASE ERRED REPEATEDLY IN EXCLUDING EVIDENCE
OFFERED BY THE RESPONDENTS WHICH WAS CLEARLY RELEVANT UNDER THE ABOVE
RULE.  IN MANY CASES THE EVIDENCE WAS NECESSARY TO SHOW THE BACKGROUND
OF THE INDUSTRY AND THE REASONS FOR THE RESPONDENTS' ACTS.  IN OTHERS
IT BORE DIRECTLY UPON THE QUESTION OF WHAT WAS THEIR PURPOSE.  IN
OTHERS IT TENDED TO PROVE THAT THE PRICE OF GASOLINE WAS NOT, AS
ALLEGED BY THE GOVERNMENT, ARBITRARY AND NONCOMPETITIVE DURING THE
INDICTMENT PERIOD.  IN MANY INSTANCES THE EVIDENCE SHOULD HAVE BEEN
SUBMITTED TO THE JURY NOT ONLY AS DIRECT PROOF OF THE MATTERS IN
QUESTION, BUT IN ORDER TO REBUT INFERENCES WHICH THE GOVERNMENT SOUGHT
TO DRAW FROM FRAGMENTARY EVIDENCE. 

THE GOVERNMENT CONCEDES THAT "THERE WAS A WEALTH OF EVIDENCE FROM
WHICH OPPOSING FACTUAL INFERENCES COULD BE DRAWN."  UNDER THESE
CIRCUMSTANCES IT WAS IMPERATIVE THAT THE JURY HAVE BEFORE IT ALL OF THE
SURROUNDING FACTS AND CIRCUMSTANCES UPON WHICH THE PROPER INFERENCES
DEPENDED. 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN USING AND PERMITTING
GOVERNMENT COUNSEL TO USE ALLEGED TRANSCRIPTS OF TESTIMONY BEFORE THE
GRAND JURY IN THE EXAMINATION OF IMPORTANT WITNESSES.  THE WITNESSES
UPON WHOM THE GOVERNMENT PRINCIPALLY RELIED TO ESTABLISH ITS CASE WERE
EMPLOYEES OF VARIOUS OF THE RESPONDENTS.  GOVERNMENT COUNSEL ENDEAVORED
CONSISTENTLY THROUGHOUT THE TRIAL, BY READING FROM AND REFERRING TO
CERTAIN "ALLEGED GRAND JURY MINUTES," TO PERSUADE THE JURY THAT THESE
WITNESSES WERE UNDER PRESSURE TO AVOID INCRIMINATING THEIR EMPLOYERS. 
THIS PERSISTENT EFFORT HAD A THREEFOLD PURPOSE AND EFFECT:  (1) TO
MAGNIFY THE SIGNIFICANCE OF ANY TESTIMONY OF THESE WITNESSES
DETRIMENTAL TO THE DEFENDANTS; (2) TO SUGGEST THE EXISTENCE OF
ADDITIONAL FACTS NOT COVERED BY ANY TESTIMONY AND EVEN MORE DETRIMENTAL
TO THE DEFENDANTS; AND (3) TO PREJUDICE THE RESPONDENTS BY PERSUADING
THE JURY THAT THEY WOULD SUBORN PERJURY TO AVOID DISCOVERY OF THEIR
ALLEGED UNLAWFUL ACTS.    THE COURT ERRONEOUSLY DENIED RESPONDENTS THE
RIGHT TO INSPECT THE ALLEGED TRANSCRIPTS OF TESTIMONY BEFORE THE GRAND
JURY TO DETERMINE THE ACCURACY OF THE ALLEGED QUOTATIONS AND THE
STATEMENTS OF GOVERNMENT COUNSEL WITH RESPECT THERETO. 

THE COURT ERRONEOUSLY PERMITTED GOVERNMENT COUNSEL TO READ FROM
ALLEGED GRAND JURY TESTIMONY AND FROM NOTES ALLEGED TO HAVE BEEN MADE
FROM GRAND JURY TESTIMONY WHICH WERE NOT PROPERLY AUTHENTICATED NOR
THEIR ACCURACY SUFFICIENTLY ESTABLISHED. 

THE COURT REPEATEDLY READ AND PERMITTED GOVERNMENT COUNSEL TO READ
FROM THE ALLEGED TRANSCRIPTS OF TESTIMONY BEFORE THE GRAND JURY UNDER
CIRCUMSTANCES WHICH UNDOUBTEDLY LED THE JURY TO CONCLUDE THAT SUCH
ALLEGED GRAND JURY TESTIMONY WAS AFFIRMATIVE EVIDENCE IN THE CASE.  IN
SOME INSTANCES IT CAN BE SHOWN FROM THE RECORD THAT STATEMENTS SO READ
FROM THE ALLEGED TRANSCRIPTS WERE NOT TRUE. 

THE COURT REPEATEDLY PERMITTED GOVERNMENT COUNSEL TO READ IN THE
PRESENCE OF THE JURY ALLEGED GRAND JURY TESTIMONY FOR THE PURPORTED
PURPOSE OF REFRESHING THE WITNESS'S RECOLLECTION, ALTHOUGH IT APPEARED
FROM THE RECORD THAT SUCH ALLEGED TESTIMONY WAS NOT GIVEN
CONTEMPORANEOUSLY WITH THE OCCURRENCE TO WHICH IT RELATED. 

IN THEIR CLOSINGS TO THE JURY, GOVERNMENT COUNSEL MADE ARGUMENTS
WHICH PLAINLY CONSTITUTED APPEALS TO PASSION AND CLASS DISTINCTION, ALL
TENDING TO INDUCE THE JURY TO DISREGARD THE RECORD EVIDENCE AND TO BASE
THEIR VERDICT UPON SUCH IMPROPER APPEALS. 

IN ADDITION GOVERNMENT COUNSEL, FOR THE PURPOSE OF DEMONSTRATING TO
THE JURY THAT THE ENTIRE TESTIMONY OF A KEY WITNESS FOR THE RESPONDENTS
WAS UNWORTHY OF BELIEF, RESORTED TO ASSERTIONS OF PERSONAL KNOWLEDGE
WHICH NOT ONLY WERE NOT SUPPORTED BY THE RECORD, BUT WERE NOT CORRECT. 

THE GRANTING OF MOTIONS FOR NEW TRIALS TO NON-APPEALING DEFENDANTS
REQUIRED THE GRANTING OF SIMILAR MOTIONS TO RESPONDENTS. 

THE POSSESSION OF THE POWER TO RAISE OR AFFECT MARKET PRICES
ARBITRARILY WAS A FUNDAMENTAL ISSUE IN THIS CASE. 

BY THEIR VERDICT OF JANUARY 22, 1938, THE JURY FOUND THAT 16
CORPORATIONS AND 30 INDIVIDUALS HAD CONSPIRED, AS CHARGED, AND THAT
THEY COLLECTIVELY POSSESSED THE POWER TO EXECUTE THE CONSPIRACY. 
THEREAFTER, ON JULY 19, 1938, THE COURT DISCHARGED ONE CORPORATION AND
10 INDIVIDUALS AND GRANTED NEW TRIALS TO 3 CORPORATIONS AND 15
INDIVIDUALS.  ONE OF THE CORPORATIONS GRANTED A NEW TRIAL, STANDARD OF
INDIANA, ALONE POSSESSED SUCH POWER AS WOULD MAKE IT IMPOSSIBLE FOR ANY
GROUP TO RAISE PRICES IN THE MIDWESTERN AREA WITHOUT ITS AGREEMENT AND
COOPERATION. 

IT FOLLOWS THAT THE FUNDAMENTAL ISSUE OF WHETHER THE RESPONDENTS
POSSESSED THE POWER TO RAISE OR AFFECT PRICES ARBITRARILY, NEVER
RECEIVED THE CONSIDERATION OF THE JURY.  THE JURY'S FINDING THAT THE
ENTIRE GROUP POSSESSED SUCH POWER BY NO MEANS CARRIED THE IMPLICATION
THAT, IF PERMITTED, THE JURY WOULD LIKEWISE HAVE FOUND THAT
RESPONDENTS, ACTING ALONE, POSSESSED SUCH POWER.  MOREOVER, THE ERROR
CAN NOT BE CURED BY POINTING TO SOME EVIDENCE WHICH WOULD HAVE
SUPPORTED SUCH A FINDING, IF MADE.  THERE MUST BE A JURY FINDING, NOT A
FINDING BY THE COURT, UPON THIS ISSUE. 

THERE WAS A FATAL VARIANCE BETWEEN THE ALLEGATIONS OF THE INDICTMENT
AND THE PROOF.  THE GOVERNMENT FAILED COMPLETELY TO ESTABLISH THE
ALLEGATION THAT THE RESPONDENTS (1) BOUGHT GASOLINE AT PRICES HIGHER
THAN THOSE PAID BY JOBBERS IN THE COMPETITIVE SPOT MARKET, AND (2)
FRAUDULENTLY MISREPRESENTED AND PUBLISHED SUCH PRICES IN THE MARKET
JOURNAL QUOTATIONS AS PRICES PAID BY JOBBERS.  THE PROOF AFFIRMATIVELY
SHOWED THE CONTRARY. 

THE RECORD CONTAINS NO SUBSTANTIAL, COMPETENT EVIDENCE THAT THE
COMBINATION EITHER IN PURPOSE OR EFFECT UNREASONABLY RESTRAINED TRADE
WITHIN THE MEANING OF THE SHERMAN LAW. 

THE RECORD SHOWS THAT FOR SEVERAL YEARS PRIOR TO THE INDICTMENT
PERIOD THE DISTRESS OF THE OIL INDUSTRY WAS SO ACUTE AS TO CALL FOR
REMEDIAL CONCERTED ACTION.  IT ALSO SHOWS THAT THIS CONDITION WAS
RECOGNIZED NOT ONLY BY THE INDUSTRY, BUT BY THE STATE AND FEDERAL
GOVERNMENTS.  THERE WAS NO DISPUTE AS TO THESE FACTS. 

THE SITUATION WAS CAUSED PRIMARILY BY TWO ABNORMAL AND DESTRUCTIVE
COMPETITIVE PRACTICES, RESULTING IN SURPLUS CRUDE OIL AND SURPLUS
GASOLINE AS A DISTRESS PRODUCT. 

FACED WITH THESE CONDITIONS THE RESPONDENTS ENGAGED IN A VOLUNTARY
COOPERATIVE EFFORT TO REMOVE ONE OF THESE COMPETITIVE EVILS - DISTRESS
GASOLINE.  THE SUBSTANCE OF WHAT WAS ACCOMPLISHED AND AGREED UPON WAS
THAT THE MAJOR COMPANIES WOULD PURCHASE FROM INDEPENDENT REFINERS THE
LATTER'S SURPLUS GASOLINE AT GOING MARKET PRICES. 

THE COURT BELOW ERRED AS A MATTER OF LAW IN HOLDING THAT THE
REASONABLENESS OF THE ACTIVITIES OF THE DEFENDANTS WAS A JURY QUESTION
SOLELY BECAUSE THE PLAN WAS "PLACED IN OPERATION WITH THE RESULTS
REVEALED."  A PLAN OR AGREEMENT WHICH HAS BEEN PUT INTO OPERATION MAY
BE AS UNOBJECTIONABLE AS ONE WHICH IS STILL EXECUTORY.  IN EITHER CASE
THE QUESTION ON APPEAL IS WHETHER THE FACTS AND CIRCUMSTANCES ARE AS
CONSISTENT WITH THE INNOCENCE OF THE DEFENDANTS AS WITH THEIR GUILT. 

THE RECORD SHOWS THAT THE ONLY ACTS DONE WITHIN THE WESTERN DISTRICT
OF WISCONSIN IN THIS CASE WERE (A) THE EXECUTION OF CONTRACTS WITH
JOBBERS WHEREUNDER THE PRICE WAS DETERMINED BY REFERENCE TO THE SPOT
TANK CAR MARKET QUOTATIONS IN THE MARKET JOURNALS; (B) DELIVERY OF
GASOLINE TO JOBBERS UNDER SUCH CONTRACTS; AND (C) SALES TO RETAIL
DEALERS AND CONSUMERS AT PRICES WHICH WERE AFFECTED BY PRICES ON THE
SPOT TANK CAR MARKET. 

AN OVERT ACT MUST BE AN ACT DONE WITHIN THE SCOPE OF THE AGENCY
CREATED BY THE ILLEGAL "PARTNERSHIP" OR CONSPIRACY AGREEMENT. 

THERE IS NOTHING IN THE RECORD TO SHOW THAT THE AGREEMENT AMONG THE
RESPONDENTS CONTEMPLATED ANY RESTRICTION UPON THEIR FREEDOM IN SELLING
GASOLINE WITHIN THE WESTERN DISTRICT OF WISCONSIN. 

THE MERE REMOVAL OF DISTRESS GASOLINE FROM THE COMPETITIVE MARKET
WOULD OBVIOUSLY RESULT IN A MORE NORMAL PRICE, NOT BECAUSE OF THE
ABSENCE OF COMPETITION, BUT BY REASON OF IT.  THE UNDISPUTED TESTIMONY
IS THAT THIS WAS ALL THE RESPONDENTS HOPED TO ACCOMPLISH, AND THE
RECORD SHOWS THAT IN FACT THIS WAS ALL THAT RESULTED. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS  FN1  WERE CONVICTED BY A JURY,  FN2 23 F.SUPP.  937,
UNDER AN INDICTMENT CHARGING VIOLATIONS OF SEC. 1 OF THE SHERMAN ANTI
TRUST ACT,  FN3  26 STAT. 209; 50 STAT. 693.  THE CIRCUIT COURT OF
APPEALS REVERSED AND REMANDED FOR A NEW TRIAL.  105 F.2D 809.  THE CASE
IS HERE ON A PETITION AND CROSS-PETITION FOR CERTIORARI, BOTH OF WHICH
WE GRANTED BECAUSE OF THE PUBLIC IMPORTANCE OF THE ISSUES RAISED.  308
U.S. 540. 

I. THE INDICTMENT. 

THE INDICTMENT WAS RETURNED IN DECEMBER 1936 IN THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN.  IT CHARGES THAT
CERTAIN MAJOR OIL COMPANIES,  FN4  SELLING GASOLINE IN THE MID-WESTERN
AREA  FN5  (WHICH INCLUDES THE WESTERN DISTRICT OF WISCONSIN), (1)
"COMBINED AND CONSPIRED TOGETHER FOR THE PURPOSE OF ARTIFICIALLY
RAISING AND FIXING THE TANK CAR PRICES OF GASOLINE" IN THE "SPOT
MARKETS" IN THE EAST TEXAS  FN6  AND MID-CONTINENT  FN7  FIELDS; (2)
"HAVE ARTIFICIALLY RAISED AND FIXED SAID SPOT MARKET TANK CAR PRICES OF
GASOLINE AND HAVE MAINTAINED SAID PRICES AT ARTIFICIALLY HIGH AND NON
COMPETITIVE LEVELS, AND AT LEVELS AGREED UPON AMONG THEM AND HAVE
THEREBY INTENTIONALLY INCREASED AND FIXED THE TANK CAR PRICES OF
GASOLINE CONTRACTED TO BE SOLD AND SOLD IN INTERSTATE COMMERCE AS
AFORESAID IN THE MID-WESTERN AREA"; (3) "HAVE ARBITRARILY," BY REASON
OF THE PROVISIONS OF THE PREVAILING FORM OF JOBBER CONTRACTS WHICH MADE
THE PRICE TO THE JOBBER DEPENDENT ON THE AVERAGE SPOT MARKET PRICE,
"EXACTED LARGE SUMS OF MONEY FROM THOUSANDS OF JOBBERS WITH WHOM THEY
HAVE HAD SUCH CONTRACTS IN SAID MID-WESTERN AREA"; AND (4) "IN TURN
HAVE INTENTIONALLY RAISED THE GENERAL LEVEL OF RETAIL PRICES PREVAILING
IN SAID MID-WESTERN AREA." 

THE MANNER AND MEANS OF EFFECTUATING SUCH CONSPIRACY ARE ALLEGED IN
SUBSTANCE AS FOLLOWS: DEFENDANTS, FROM FEBRUARY 1935 TO DECEMBER 1936
"HAVE KNOWINGLY AND UNLAWFULLY ENGAGED AND PARTICIPATED IN TWO
CONCERTED GASOLINE BUYING PROGRAMS" FOR THE PURCHASE "FROM INDEPENDENT
REFINERS IN SPOT TRANSACTIONS OF LARGE QUANTITIES OF GASOLINE IN THE
EAST TEXAS AND MID-CONTINENT FIELDS AT UNIFORM, HIGH, AND AT TIMES
PROGRESSIVELY INCREASED PRICES."  THE EAST TEXAS BUYING PROGRAM IS
ALLEGED TO HAVE EMBRACED PURCHASES OF GASOLINE IN SPOT TRANSACTIONS
FROM MOST OF THE INDEPENDENT REFINERS IN THE EAST TEXAS FIELD, WHO WERE
MEMBERS OF THE EAST TEXAS REFINERS' MARKETING ASSOCIATION, FORMED IN
FEBRUARY 1935 WITH THE KNOWLEDGE AND APPROVAL OF SOME OF THE DEFENDANTS
"FOR THE PURPOSE OF SELLING AND FACILITATING THE SALE OF GASOLINE TO
DEFENDANT MAJOR OIL COMPANIES."  IT IS ALLEGED THAT ARRANGEMENTS WERE
MADE AND CARRIED OUT FOR ALLOTTING ORDERS FOR GASOLINE RECEIVED FROM
DEFENDANTS AMONG THE MEMBERS OF THAT ASSOCIATION; AND THAT SUCH
PURCHASES AMOUNTED TO MORE THAN 50% OF ALL GASOLINE PRODUCED BY THOSE
INDEPENDENT REFINERS.  THE MID-CONTINENT BUYING PROGRAM IS ALLEGED TO
HAVE INCLUDED "LARGE AND INCREASED PURCHASES OF GASOLINE" BY DEFENDANTS
FROM INDEPENDENT REFINERS LOCATED IN THE MID-CONTINENT FIELDS PURSUANT
TO ALLOTMENTS AMONG THEMSELVES.  THOSE PURCHASES, IT IS CHARGED, WERE
MADE FROM INDEPENDENT REFINERS WHO WERE ASSIGNED TO CERTAIN OF THE
DEFENDANTS AT MONTHLY MEETINGS OF A GROUP REPRESENTING DEFENDANTS.  IT
IS ALLEGED THAT THE PURCHASES IN THIS BUYING PROGRAM AMOUNTED TO NEARLY
50% OF ALL GASOLINE SOLD BY THOSE INDEPENDENTS.  AS RESPECTS BOTH THE
EAST TEXAS AND THE MID-CONTINENT BUYING PROGRAMS, IT IS ALLEGED THAT
THE PURCHASES OF GASOLINE WERE IN EXCESS OF THE AMOUNTS WHICH
DEFENDANTS WOULD HAVE PURCHASED BUT FOR THOSE PROGRAMS; THAT AT THE
INSTANCE OF CERTAIN DEFENDANTS THESE INDEPENDENT REFINERS CURTAILED
THEIR PRODUCTION OF GASOLINE. 

THE INDEPENDENT REFINERS SELLING IN THESE PROGRAMS WERE NAMED AS CO
CONSPIRATORS, BUT NOT AS DEFENDANTS. 

CERTAIN MARKET JOURNALS - CHICAGO JOURNAL OF COMMERCE, PLATT'S
OILGRAM, NATIONAL PETROLEUM NEWS - WERE MADE DEFENDANTS.  FN8  THEIR
PARTICIPATION IN THE CONSPIRACY IS ALLEGED AS FOLLOWS:  THAT THEY HAVE
BEEN "THE CHIEF AGENCIES AND INSTRUMENTALITIES" THROUGH WHICH THE
WRONGFULLY RAISED PRICES "HAVE AFFECTED THE PRICES PAID BY JOBBERS,
RETAIL DEALERS, AND CONSUMERS FOR GASOLINE IN THE MID-WESTERN AREA,"
THAT THEY "KNOWINGLY PUBLISHED AND CIRCULATED AS SUCH PRICE QUOTATIONS
THE WRONGFULLY AND ARTIFICIALLY RAISED AND FIXED PRICES FOR GASOLINE
PAID BY" DEFENDANTS IN THESE BUYING PROGRAMS, WHILE "REPRESENTING THE
PRICE QUOTATIONS PUBLISHED BY THEM" TO BE GASOLINE PRICES "PREVAILING
IN SPOT SALES TO JOBBERS IN TANK CAR LOTS" AND WHILE "KNOWING AND
INTENDING THEM TO BE RELIED ON AS SUCH BY JOBBERS AND TO BE MADE THE
BASIS OF PRICES TO JOBBERS." 

JURISDICTION AND VENUE IN THE WESTERN DISTRICT OF WISCONSIN ARE
ALLEGED AS FOLLOWS:  THAT MOST OF DEFENDANT MAJOR OIL COMPANIES HAVE
SOLD LARGE QUANTITIES OF GASOLINE IN TANK CAR LOTS TO JOBBERS IN THAT
DISTRICT AT THE "ARTIFICIALLY RAISED AND FIXED AND NON-COMPETITIVE
PRICES"; THAT THEY HAVE "SOLICITED AND TAKEN CONTRACTS AND ORDERS" FOR
GASOLINE IN THAT DISTRICT; AND THAT THEY HAVE REQUIRED RETAIL DEALERS
AND CONSUMERS THEREIN "TO PAY ARTIFICIALLY INCREASED PRICES FOR
GASOLINE" PURSUANT TO THE CONSPIRACY. 

THE METHODS OF MARKETING AND SELLING GASOLINE IN THE MID-WESTERN AREA
ARE SET FORTH IN THE INDICTMENT IN SOME DETAIL.  SINCE WE HEREAFTER
DEVELOP THE FACTS CONCERNING THEM, IT WILL SUFFICE AT THIS POINT TO
SUMMARIZE THEM BRIEFLY.  EACH DEFENDANT MAJOR OIL COMPANY OWNS,
OPERATES OR LEASES RETAIL SERVICE STATIONS IN THIS AREA.  IT SUPPLIES
THOSE STATIONS, AS WELL AS INDEPENDENT RETAIL STATIONS, WITH GASOLINE
FROM ITS BULK STORAGE PLANTS.  ALL BUT ONE SELL LARGE QUANTITIES OF
GASOLINE TO JOBBERS IN TANK CAR LOTS UNDER TERM CONTRACTS.  IN THIS
AREA THESE JOBBERS EXCEED 4,000 IN NUMBER AND DISTRIBUTE ABOUT 50% OF
ALL GASOLINE DISTRIBUTED TO RETAIL SERVICE STATIONS THEREIN, THE BULK
OF THE JOBBERS' PURCHASES BEING MADE FROM THE DEFENDANT COMPANIES.  THE
PRICE TO THE JOBBERS UNDER THOSE CONTRACTS WITH DEFENDANT COMPANIES IS
MADE DEPENDENT ON THE SPOT MARKET PRICE, PURSUANT TO A FORMULA
HEREINAFTER DISCUSSED.  AND THE SPOT MARKET TANK CAR PRICES OF GASOLINE
DIRECTLY AND SUBSTANTIALLY INFLUENCE THE RETAIL PRICES IN THE AREA.  IN
SUM, IT IS ALLEGED THAT DEFENDANTS BY RAISING AND FIXING THE TANK CAR
PRICES OF GASOLINE IN THESE SPOT MARKETS COULD AND DID INCREASE THE
TANK CAR PRICES AND THE RETAIL PRICES OF GASOLINE SOLD IN THE MID
WESTERN AREA.  THE VULNERABILITY OF THESE SPOT MARKETS TO THAT TYPE OF
MANIPULATION OR STABILIZATION IS EMPHASIZED BY THE ALLEGATION THAT SPOT
MARKET PRICES PUBLISHED IN THE JOURNALS WERE THE RESULT OF SPOT SALES
MADE CHIEFLY BY INDEPENDENT REFINERS OF A RELATIVELY SMALL AMOUNT OF
THE GASOLINE SOLD IN THAT AREA - VIRTUALLY ALL GASOLINE SOLD IN TANK
CAR QUANTITIES IN SPOT MARKET TRANSACTIONS IN THE MID-WESTERN AREA
BEING SOLD BY INDEPENDENT REFINERS, SUCH SALES AMOUNTING TO LESS THAN
5% OF ALL GASOLINE MARKETED THEREIN. 

SO MUCH FOR THE INDICTMENT. 

II.  BACKGROUND OF THE ALLEGED CONSPIRACY. 

EVIDENCE WAS INTRODUCED (OR RESPONDENTS MADE OFFERS OF PROOF) SHOWING
OR TENDING TO SHOW THE FOLLOWING CONDITIONS PRECEDING THE COMMENCEMENT
OF THE ALLEGED CONSPIRACY IN FEBRUARY 1935.  AS WE SHALL DEVELOP LATER,
THESE FACTS WERE IN THE MAIN RELEVANT TO CERTAIN DEFENSES WHICH
RESPONDENTS AT THE TRIAL UNSUCCESSFULLY SOUGHT TO INTERPOSE TO THE
INDICTMENT. 

BEGINNING ABOUT 1926 THERE COMMENCED A PERIOD OF PRODUCTION OF CRUDE
OIL IN SUCH QUANTITIES AS SERIOUSLY TO AFFECT CRUDE OIL AND GASOLINE
MARKETS THROUGHOUT THE UNITED STATES.  OVERPRODUCTION WAS WASTEFUL,
REDUCED THE PRODUCTIVE CAPACITY OF THE OIL FIELDS AND DROVE THE PRICE
OF OIL DOWN TO LEVELS BELOW THE COST OF PRODUCTION FROM PUMPING AND
STRIPPER  FN9  WELLS.  WHEN THE PRICE FALLS BELOW SUCH COST, THOSE
WELLS MUST BE ABANDONED.  ONCE ABANDONED, SUBSURFACE CHANGES MAKE IT
DIFFICULT OR IMPOSSIBLE TO BRING THOSE WELLS BACK INTO PRODUCTION. 
SINCE SUCH WELLS CONSTITUTE ABOUT 40% OF THE COUNTRY'S KNOWN OIL
RESERVES, CONSERVATION REQUIRES THAT THE PRICE OF CRUDE OIL BE
MAINTAINED AT A LEVEL WHICH WILL PERMIT SUCH WELLS TO BE OPERATED.  AS
OKLAHOMA AND KANSAS WERE ATTEMPTING TO REMEDY THE SITUATION THROUGH
THEIR PRORATION LAWS, THE LARGEST OIL FIELD IN HISTORY WAS DISCOVERED
IN EAST TEXAS.  THAT WAS IN 1930.  THE SUPPLY OF OIL FROM THIS FIELD
WAS SO GREAT THAT AT ONE TIME CRUDE OIL SANK TO 10 OR 15 CENTS A
BARREL, AND GASOLINE WAS SOLD IN THE EAST TEXAS FIELD FOR 2 1/8[ A
GALLON.  ENFORCEMENT BY TEXAS OF ITS PRORATION LAW WAS EXTREMELY
DIFFICULT.  ORDERS RESTRICTING PRODUCTION WERE VIOLATED, THE OIL
UNLAWFULLY PRODUCED BEING KNOWN AS "HOT OIL" AND THE GASOLINE
MANUFACTURED THEREFROM, "HOT GASOLINE."  HOT OIL SOLD FOR SUBSTANTIALLY
LOWER PRICES THAN THOSE POSTED FOR LEGAL OIL.  HOT GASOLINE THEREFORE
COST LESS AND AT TIMES COULD BE SOLD FOR LESS THAN IT COST TO
MANUFACTURE LEGAL GASOLINE.  THE LATTER, DEPRIVED OF ITS NORMAL
OUTLETS, HAD TO BE SOLD AT DISTRESS PRICES.  THE CONDITION OF MANY
INDEPENDENT REFINERS USING LEGAL CRUDE OIL WAS PRECARIOUS.  IN SPITE OF
THEIR UNPROFITABLE OPERATIONS THEY COULD NOT AFFORD TO SHUT DOWN, FOR
IF THEY DID SO THEY WOULD BE APT TO LOSE THEIR OIL CONNECTIONS IN THE
FIELD AND THEIR REGULAR CUSTOMERS.  HAVING LITTLE STORAGE CAPACITY THEY
HAD TO SELL THEIR GASOLINE AS FAST AS THEY MADE IT.  AS A RESULT THEIR
GASOLINE BECAME "DISTRESS" GASOLINE - GASOLINE WHICH THE REFINER COULD
NOT STORE, FOR WHICH HE HAD NO REGULAR SALES OUTLETS AND WHICH
THEREFORE HE HAD TO SELL FOR WHATEVER PRICE IT WOULD BRING.  SUCH SALES
DROVE THE MARKET DOWN. 

IN THE SPRING OF 1933 CONDITIONS WERE ACUTE.  THE WHOLESALE MARKET
WAS BELOW THE COST OF MANUFACTURE.  AS THE MARKET BECAME FLOODED WITH
CHEAP GASOLINE, GASOLINE WAS DUMPED AT WHATEVER PRICE IT WOULD BRING. 
ON JUNE 1, 1933, THE PRICE OF CRUDE OIL WAS 25[ A BARREL; THE TANK CAR
PRICE OF REGULAR GASOLINE WAS 2 5/8[ A GALLON.  IN JUNE 1933 CONGRESS
PASSED THE NATIONAL INDUSTRIAL RECOVERY ACT (48 STAT. 195).  SEC. 9(C)
OF THAT ACT AUTHORIZED THE PRESIDENT TO FORBID THE INTERSTATE AND
FOREIGN SHIPMENT OF PETROLEUM AND ITS PRODUCTS PRODUCED OR WITHDRAWN
FROM STORAGE IN VIOLATION OF STATE LAWS.  BY EXECUTIVE ORDER THE
PRESIDENT ON JULY 11, 1933, FORBADE SUCH SHIPMENTS.  ON AUGUST 19,
1933, A CODE OF FAIR COMPETITION FOR THE PETROLEUM INDUSTRY WAS
APPROVED.  FN10  THE SECRETARY OF THE INTERIOR WAS DESIGNATED AS
ADMINISTRATOR OF THAT CODE.  HE ESTABLISHED A PETROLEUM ADMINISTRATIVE
BOARD TO "ADVISE WITH AND MAKE RECOMMENDATIONS" TO HIM.  A PLANNING AND
COORDINATION COMMITTEE WAS APPOINTED, OF WHICH RESPONDENT CHARLES E.
ARNOTT, A VICEPRESIDENT OF SOCONY-VACUUM, WAS A MEMBER, TO AID IN THE
ADMINISTRATION OF THE CODE.  IN ADDRESSING THAT COMMITTEE IN THE FALL
OF 1933 THE ADMINISTRATOR SAID:  "OUR TASK IS TO STABILIZE THE OIL
INDUSTRY UPON A PROFITABLE BASIS."  CONSIDERABLE PROGRESS WAS MADE. 
THE PRICE OF CRUDE OIL WAS A DOLLAR A BARREL NEAR THE END OF SEPTEMBER
1933, AS A RESULT OF THE VOLUNTARY ACTION OF THE INDUSTRY,  FN11 BUT,
ACCORDING TO RESPONDENTS, IN ACCORDANCE WITH THE ADMINISTRATOR'S POLICY
AND DESIRE.  IN APRIL 1934 AN AMENDMENT TO THE CODE WAS ADOPTED UNDER
WHICH AN ATTEMPT WAS MADE TO BALANCE THE SUPPLY OF GASOLINE WITH THE
DEMAND BY ALLOCATING THE AMOUNT OF CRUDE OIL WHICH EACH REFINER COULD
PROCESS WITH THE VIEW OF CREATING A FIRMER CONDITION IN THE MARKET AND
THUS INCREASING THE PRICE OF GASOLINE.  FN12  THIS AMENDMENT ALSO
AUTHORIZED THE PLANNING AND COORDINATION COMMITTEE, WITH THE APPROVAL
OF THE PRESIDENT, TO MAKE SUITABLE ARRANGEMENTS FOR THE PURCHASE OF
GASOLINE FROM NON-INTEGRATED OR SEMI-INTEGRATED REFINERS AND THE RESALE
OF THE SAME THROUGH ORDERLY CHANNELS.  THEREAFTER FOUR BUYING PROGRAMS
WERE APPROVED BY THE ADMINISTRATOR.  FN13  THESE PERMITTED THE MAJOR
COMPANIES TO PURCHASE DISTRESS GASOLINE FROM THE INDEPENDENT REFINERS. 
STANDARD FORMS OF CONTRACT WERE PROVIDED.  THE EVIL AIMED AT WAS, IN
PART AT LEAST, THE PRODUCTION OF HOT OIL AND HOT GASOLINE.  THE
CONTRACTS (TO AT LEAST ONE OF WHICH THE ADMINISTRATOR WAS A PARTY) WERE
MADE PURSUANT TO THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT
AND THE CODE AND BOUND THE PURCHASING COMPANY TO BUY FIXED AMOUNTS OF
GASOLINE AT DESIGNATED PRICES  FN14 ON CONDITION THAT THE SELLER SHOULD
ABIDE BY THE PROVISIONS OF THE CODE.  ACCORDING TO THE 1935 ANNUAL
REPORT OF THE SECRETARY OF THE INTERIOR, THESE BUYING PROGRAMS WERE NOT
SUCCESSFUL AS "THE PRODUCTION OF GASOLINE FROM 'HOT OIL' CONTINUED,
STOCKS OF GASOLINE MOUNTED, WHOLESALE PRICES FOR GASOLINE REMAINED
BELOW PARITY WITH CRUDE-OIL PRICES, AND IN THE EARLY FALL OF 1934 THE
INDUSTRY APPROACHED A SERIOUS COLLAPSE OF THE WHOLESALE MARKET."  FN15
RESTORATION OF THE PRICE OF GASOLINE TO PARITY WITH CRUDE OIL AT ONE
DOLLAR PER BARREL WAS NOT REALIZED. 

THE FLOW OF HOT OIL OUT OF EAST TEXAS CONTINUED.  REFINERS IN THE
FIELD COULD PROCURE SUCH OIL FOR 35[ OR LESS A BARREL AND MANUFACTURE
GASOLINE FROM IT FOR 2 OR 2 1/2[ A GALLON.  THIS COMPETITION OF THE
CHEAP HOT GASOLINE DROVE THE PRICE OF LEGAL GASOLINE DOWN BELOW THE
COST OF PRODUCTION.  THE PROBLEM OF DISTRESS GASOLINE ALSO PERSISTED. 
THE DISPARITY BETWEEN THE PRICE OF GASOLINE AND THE COST OF CRUDE OIL
WHICH HAD BEEN AT $1 PER BARREL SINCE SEPTEMBER 1933 CAUSED LOSSES TO
MANY INDEPENDENT REFINERS, NO MATTER HOW EFFICIENT THEY WERE.  IN
OCTOBER 1934 THE ADMINISTRATOR SET UP A FEDERAL TENDER BOARD AND ISSUED
AN ORDER MAKING IT ILLEGAL TO SHIP CRUDE OIL OR GASOLINE OUT OF EAST
TEXAS IN INTERSTATE OR FOREIGN COMMERCE UNLESS IT WERE ACCOMPANIED BY A
TENDER ISSUED BY THAT BOARD CERTIFYING THAT IT HAD BEEN LEGALLY
PRODUCED OR MANUFACTURED.  PRICES ROSE SHARPLY.  BUT THE IMPROVEMENT
WAS ONLY TEMPORARY AS THE ENFORCEMENT OF SEC. 9(C) OF THE ACT WAS
ENJOINED IN A NUMBER OF SUITS.  ON JANUARY 7, 1935, THIS COURT HELD
SEC. 9(C) TO BE UNCONSTITUTIONAL.  PANAMA REFINING CO. V. RYAN, 293
U.S. 388.  FOLLOWING THAT DECISION THERE WAS A RENEWED INFLUX OF HOT
GASOLINE INTO THE MID-WESTERN AREA AND THE TANK CAR MARKET FELL. 

MEANWHILE THE RETAIL MARKETS HAD BEEN SWEPT BY A SERIES OF PRICE
WARS.  THESE PRICE WARS AFFECTED ALL MARKETS - SERVICE STATION, TANK
WAGON, AND TANK CAR.  EARLY IN 1934 THE PETROLEUM ADMINISTRATIVE BOARD
TRIED TO DEAL WITH THEM - BY NEGOTIATING AGREEMENTS BETWEEN MARKETING
COMPANIES AND PERSUADING INDIVIDUAL COMPANIES TO RAISE THE PRICE LEVEL
FOR A PERIOD.  ON JULY 9, 1934, THAT BOARD ASKED RESPONDENT ARNOTT,
CHAIRMAN OF THE PLANNING AND COORDINATION COMMITTEE'S MARKETING
COMMITTEE N16, IF HE WOULD HEAD UP A VOLUNTARY, COOPERATIVE MOVEMENT TO
DEAL WITH PRICE WARS.  ACCORDING TO ARNOTT, HE POINTED OUT THAT IN
ORDER TO STABILIZE THE RETAIL MARKET IT WAS NECESSARY TO STABILIZE THE
TANK CAR MARKET THROUGH ELIMINATION OF HOT OIL AND DISTRESS GASOLINE. 
FN17  ON JULY 20, 1934, THE ADMINISTRATOR WROTE ARNOTT, DESCRIBED THE
DISTURBANCE CAUSED BY PRICE WARS AND SAID: 

"UNDER ARTICLE VII, SECTION 3 OF THE CODE IT IS THE DUTY OF THE
PLANNING AND COORDINATION COMMITTEE TO COOPERATE WITH THE
ADMINISTRATION AS A PLANNING AND FAIR PRACTICE AGENCY FOR THE
INDUSTRY.  I AM, THEREFORE, REQUESTING YOU, AS CHAIRMAN OF THE
MARKETING COMMITTEE OF THE PLANNING AND COORDINATION COMMITTEE, TO TAKE
ACTION WHICH WE DEEM NECESSARY TO RESTORE MARKETS TO THEIR NORMAL
CONDITIONS IN AREAS WHERE WASTEFUL COMPETITION HAS CAUSED THEM TO
BECOME DEPRESSED.  THE NUMBER AND EXTENT OF THESE SITUATIONS WOULD MAKE
IT IMPRACTICAL FOR THE PETROLEUM ADMINISTRATIVE BOARD ACTING ALONE TO
DEAL WITH EACH SPECIFIC SITUATION.  THEREFORE, I AM REQUESTING AND
AUTHORIZING YOU, AS CHAIRMAN OF THE MARKETING COMMITTEE, TO DESIGNATE
COMMITTEES FOR EACH LOCALITY WHEN AND AS PRICE WARS DEVELOP, WITH
AUTHORITY TO CONFER AND TO NEGOTIATE AND TO HOLD DUE PUBLIC HEARINGS
WITH A VIEW TO ASCERTAINING THE ELEMENTS OF CONFLICT THAT ARE PRESENT,
AND IN A COOPERATIVE MANNER TO STABILIZE THE PRICE LEVEL TO CONFORM TO
THAT NORMALLY PREVAILING IN CONTIGUOUS AREAS WHERE MARKETING CONDITIONS
ARE SIMILAR.  ANY ACTIVITIES OF YOUR COMMITTEE MUST, OF COURSE, BE
CONSISTENT WITH THE REQUIREMENTS OF CLAUSE 2 OF SUB-SECTION (A) OF
ARNOTT APPOINTED A GENERAL STABILIZATION COMMITTEE WITH HEADQUARTERS IN
WASHINGTON AND A REGIONAL CHAIRMAN IN EACH REGION.  OVER FIFTY STATE
AND LOCAL COMMITTEES WERE SET UP.  THE PETROLEUM ADMINISTRATIVE BOARD
WORKED CLOSELY WITH ARNOTT AND THE COMMITTEES UNTIL THE END OF THE CODE
NEAR THE MIDDLE OF 1935.  THE EFFORT (FIRST LOCAL, THEN STATE-WIDE, AND
FINALLY REGIONAL) WAS TO ELIMINATE PRICE WARS BY NEGOTIATION AND BY
PERSUADING SUPPLIERS TO SEE TO IT THAT THOSE WHO BOUGHT FROM THEM SOLD
AT A FAIR PRICE.  IN THE FIRST WEEK OF DECEMBER 1934, ARNOTT HELD A
MEETING OF THE GENERAL STABILIZATION COMMITTEE IN CHICAGO AND A SERIES
OF MEETINGS ON THE NEXT FOUR OR FIVE DAYS ATTENDED BY HUNDREDS OF
MEMBERS OF THE INDUSTRY FROM THE MIDDLE WEST.  THESE MEETINGS WERE SAID
TO HAVE BEEN HIGHLY SUCCESSFUL IN ELIMINATION OF MANY PRICE WARS. 
ARNOTT REPORTED THE RESULTS TO MEMBERS OF THE PETROLEUM ADMINISTRATIVE
BOARD ON DECEMBER 18, 1934, AND STATED THAT HE WAS GOING TO HAVE A
FOLLOW-UP MEETING IN THE NEAR FUTURE.  IT WAS AT THAT NEXT MEETING THAT
THE GROUNDWORK FOR THE ALLEGED CONSPIRACY WAS LAID. 

III.  THE ALLEGED CONSPIRACY. 

THE ALLEGED CONSPIRACY IS NOT TO BE FOUND IN ANY FORMAL CONTRACT OR
AGREEMENT.  IT IS TO BE PIECED TOGETHER FROM THE TESTIMONY OF MANY
WITNESSES AND THE CONTENTS OF OVER 1,000 EXHIBITS, EXTENDING THROUGH
THE 3,900 PRINTED PAGES OF THE RECORD.  WHAT FOLLOWS IS BASED ALMOST
ENTIRELY ON UNEQUIVOCAL TESTIMONY OR UNDISPUTED CONTENTS OF EXHIBITS,
ONLY OCCASIONALLY ON THE IRRESISTIBLE INFERENCES FROM THOSE FACTS.  A.
FORMATION OF THE MID-CONTINENT BUYING PROGRAM. 

THE NEXT MEETING OF THE GENERAL STABILIZATION COMMITTEE WAS HELD IN
CHICAGO ON JANUARY 4, 1935, AND WAS ATTENDED BY ALL OF THE INDIVIDUAL
RESPONDENTS, BY REPRESENTATIVES OF THE CORPORATE RESPONDENTS, AND BY
OTHERS.  REPRESENTATIVES OF INDEPENDENT REFINERS, PRESENT AT THE
MEETING, COMPLAINED OF THE FAILURE OF THE PRICE OF REFINED GASOLINE TO
REACH A PARITY WITH THE CRUDE OIL PRICE OF $1 A BARREL.  AND COMPLAINTS
BY THE INDEPENDENTS OF THE DEPRESSING EFFECT ON THE MARKET OF HOT AND
DISTRESS GASOLINE WERE REPORTED.  VIEWS WERE EXPRESSED TO THE EFFECT
THAT "IF WE WERE GOING TO HAVE GENERAL STABILIZATION IN RETAIL MARKETS,
WE MUST HAVE SOME SORT OF A FIRM MARKET IN THE TANK CAR MARKET."  AS A
RESULT OF THE DISCUSSION ARNOTT APPOINTED A TANK CAR STABILIZATION
COMMITTEE  FN19  TO STUDY THE SITUATION AND MAKE A REPORT, OR, TO USE
THE LANGUAGE OF ONE OF THOSE PRESENT, "TO CONSIDER WAYS AND MEANS OF
ESTABLISHING AND MAINTAINING AN ACTIVE AND STRONG TANK CAR MARKET ON
GASOLINE."  THREE DAYS AFTER THIS COMMITTEE WAS APPOINTED, THIS COURT
DECIDED PANAMA REFINING CO. V. RYAN, SUPRA.  AS WE HAVE SAID, THERE WAS
EVIDENCE THAT FOLLOWING THAT DECISION THERE WAS A RENEWED INFLUX OF HOT
GASOLINE INTO THE MID-WESTERN AREA WITH A CONSEQUENT FALLING OFF OF THE
TANK CAR MARKET PRICES. 

THE FIRST MEETING OF THE TANK CAR COMMITTEE WAS HELD FEBRUARY 5,
1935, AND THE SECOND ON FEBRUARY 11, 1935.  AT THESE MEETINGS THE
ALLEGED CONSPIRACY WAS FORMED, THE SUBSTANCE OF WHICH, SO FAR AS IT
PERTAINED TO THE MID-CONTINENT PHASE, WAS AS FOLLOWS: 

IT WAS ESTIMATED THAT THERE WOULD BE BETWEEN 600 AND 700 TANK CARS OF
DISTRESS GASOLINE PRODUCED IN THE MID-CONTINENT OIL FIELD EVERY MONTH
BY ABOUT 17 INDEPENDENT REFINERS.  THESE REFINERS, NOT HAVING REGULAR
OUTLETS FOR THE GASOLINE, WOULD BE UNABLE TO DISPOSE OF IT EXCEPT AT
DISTRESS PRICES.  ACCORDINGLY, IT WAS PROPOSED AND DECIDED THAT CERTAIN
MAJOR COMPANIES (INCLUDING THE CORPORATE RESPONDENTS) WOULD PURCHASE
GASOLINE FROM THESE REFINERS.  THE COMMITTEE WOULD ASSEMBLE EACH MONTH
INFORMATION AS TO THE QUANTITY AND LOCATION OF THIS DISTRESS GASOLINE. 
EACH OF THE MAJOR COMPANIES WAS TO SELECT ONE (OR MORE) OF THE
INDEPENDENT REFINERS HAVING DISTRESS GASOLINE AS ITS "DANCING PARTNER,"
FN20  AND WOULD ASSUME RESPONSIBILITY FOR PURCHASING ITS DISTRESS
SUPPLY.  IN THIS MANNER BUYING POWER WOULD BE COORDINATED, PURCHASES
WOULD BE EFFECTIVELY PLACED, AND THE RESULTS WOULD BE MUCH SUPERIOR TO
THE PREVIOUS HAPHAZARD PURCHASING.  THERE WERE TO BE NO FORMAL
CONTRACTUAL COMMITMENTS TO PURCHASE THIS GASOLINE, EITHER BETWEEN THE
MAJOR COMPANIES OR BETWEEN THE MAJORS AND THE INDEPENDENTS.  RATHER IT
WAS AN INFORMAL GENTLEMEN'S AGREEMENT OR UNDERSTANDING WHEREBY EACH
UNDERTOOK TO PERFORM HIS SHARE OF THE JOINT UNDERTAKING.  PURCHASES
WERE TO BE MADE AT THE "FAIR GOING MARKET PRICE." 

A MECHANICAL SUB-COMMITTEE  FN21  WAS APPOINTED TO FIND PURCHASERS
FOR ANY NEW DISTRESS GASOLINE WHICH MIGHT APPEAR BETWEEN THE MONTHLY
MEETINGS OF THE TANK CAR STABILIZATION COMMITTEE AND TO HANDLE DETAILED
PROBLEMS ARISING DURING THESE PERIODS.  IT WAS AGREED THAT ANY SUCH
ATTEMPT TO STABILIZE THE TANK CAR MARKET WAS HOPELESS UNTIL THE FLOW OF
HOT GASOLINE WAS STOPPED.  BUT IT WAS EXPECTED THAT A BILL PENDING
BEFORE CONGRESS TO PROHIBIT INTERSTATE SHIPMENT OF HOT GASOLINE WOULD
SOON BE ENACTED WHICH WOULD DEAL EFFECTIVELY WITH THAT PROBLEM. 
ACCORDINGLY, IT WAS DECIDED NOT TO PUT ANY PROGRAM INTO OPERATION UNTIL
THIS BILL HAD BEEN ENACTED AND BECAME OPERATIVE.  IT WAS LEFT TO
RESPONDENT ARNOTT TO GIVE THE SIGNAL FOR PUTTING THE PROGRAM INTO
OPERATION AFTER THIS HAD OCCURRED.    THE CONNALLY ACT (49 STAT. 30)
BECAME LAW ON FEBRUARY 22, 1935.  THE ENFORCEMENT AGENCY UNDER THIS ACT
WAS THE FEDERAL TENDER BOARD WHICH WAS APPOINTED ABOUT MARCH 1ST.  IT
ISSUED ITS FIRST TENDERS MARCH 4TH.  ON MARCH 1ST RESPONDENTS ARNOTT
AND ASHTON EXPLAINED THE BUYING PROGRAM TO A GROUP OF MID-CONTINENT
INDEPENDENT REFINERS IN KANSAS CITY, WHO EXPRESSED A DESIRE TO
COOPERATE AND WHO APPOINTED A COMMITTEE TO ATTEND A MEETING OF THE TANK
CAR STABILIZATION COMMITTEE IN ST. LOUIS ON MARCH 5TH TO LEARN MORE
ABOUT THE DETAILS.  THIS MEETING WAS HELD WITH THE COMMITTEE OF THE
INDEPENDENTS PRESENT AT ONE OF THE SESSIONS.  AT A LATER SESSION THAT
DAY THE FINAL DETAILS OF THE MID-CONTINENT BUYING PROGRAM WERE WORKED
OUT, INCLUDING AN ASSIGNMENT OF THE "DANCING PARTNERS" AMONG THE MAJOR
COMPANIES.  FN22  ON MARCH 6TH ASHTON TELEPHONED ARNOTT AND TOLD HIM
WHAT HAD BEEN ACCOMPLISHED AT THE ST. LOUIS MEETING.  LATER THE SAME
DAY ARNOTT TOLD ASHTON BY TELEPHONE THAT THE PROGRAM SHOULD BE PUT INTO
OPERATION AS SOON AS POSSIBLE, SINCE THE FEDERAL TENDER BOARD SEEMED TO
BE CLEANING UP THE HOT OIL SITUATION IN EAST TEXAS.  ASHTON ADVISED
MCDOWELL, CHAIRMAN OF THE MECHANICAL SUB-COMMITTEE, OF ARNOTT'S
INSTRUCTIONS.  AND ON MARCH 7TH THAT COMMITTEE WENT INTO ACTION.  THEY
DIVIDED UP THE MAJOR COMPANIES; EACH COMMUNICATED WITH THOSE ON HIS
LIST, ADVISED THEM THAT THE PROGRAM WAS LAUNCHED, AND SUGGESTED THAT
THEY GET IN TOUCH WITH THEIR RESPECTIVE "DANCING PARTNERS."  BEFORE THE
MONTH WAS OUT ALL COMPANIES ALLEGED TO HAVE PARTICIPATED IN THE PROGRAM
(EXCEPT ONE OR TWO) MADE PURCHASES; 757 TANK CARS WERE BOUGHT FROM ALL
BUT THREE OF THE INDEPENDENT REFINERS WHO WERE NAMED IN THE INDICTMENT
AS SELLERS. 

B. THE MID-CONTINENT BUYING PROGRAM IN OPERATION. 

NO SPECIFIC TERM FOR THE BUYING PROGRAM WAS DECIDED UPON, BEYOND THE
FIRST MONTH.  BUT IT WAS STARTED WITH THE HOPE OF ITS CONTINUANCE FROM
MONTH TO MONTH.  AND IN FACT IT DID GO ON FOR OVER A YEAR, AS WE SHALL
SEE. 

THE CONCERTED ACTION UNDER THIS PROGRAM TOOK THE FOLLOWING FORM: 

THE TANK CAR STABILIZATION COMMITTEE HAD A.V. BOURQUE, SECRETARY OF
THE WESTERN PETROLEUM REFINERS' ASSOCIATION,  FN23  MAKE A MONTHLY
SURVEY, SHOWING THE AMOUNT OF DISTRESS GASOLINE WHICH EACH INDEPENDENT
REFINER WOULD HAVE DURING THE MONTH.  FROM MARCH 1935 THROUGH FEBRUARY
1936 THAT COMMITTEE MET ONCE A MONTH.  AT THESE MEETINGS THE SURVEYS
SHOWING THE AMOUNT AND LOCATION OF DISTRESS GASOLINE WERE PRESENTED AND
DISCUSSED.  THEY USUALLY REVEALED THAT FROM 600 TO 800 TANK CARS OF
DISTRESS GASOLINE WOULD BECOME AVAILABLE DURING THE MONTH.  EACH MEMBER
OF THE COMMITTEE PRESENT WOULD INDICATE HOW MUCH HIS COMPANY WOULD BUY
AND FROM WHOM.  THOSE COMPANIES WHICH WERE NOT REPRESENTED AT THE
MEETINGS WERE APPROACHED BY THE MECHANICAL SUB-COMMITTEE; "WORD WAS
GOTTEN TO THEM AS TO THE AMOUNT OF GASOLINE THAT IT WAS FELT THEY COULD
TAKE IN THAT MONTH."  ALSO, AS WE HAVE STATED, THE MECHANICAL SUB
COMMITTEE WOULD ENDEAVOR TO FIND PURCHASERS FOR ANY NEW DISTRESS
GASOLINE WHICH APPEARED BETWEEN THE MEETINGS OF THE TANK CAR
STABILIZATION COMMITTEE.  IT WOULD REPORT SUCH NEW SURPLUSES TO
BOURQUE.  THE FUNCTIONS OF THE MECHANICAL SUB-COMMITTEE WERE APPARENTLY
NOT RESTRICTED MERELY TO DISSEMINATION OF INFORMATION TO THE BUYERS. 
ONE OF ITS MEMBERS TESTIFIED THAT HE URGED THE MAJORS TO BUY MORE
DISTRESS GASOLINE.  THROUGHOUT, PERSUASION WAS APPARENTLY USED TO THE
END THAT ALL DISTRESS GASOLINE WOULD BE TAKEN BY THE MAJORS AND SO KEPT
FROM THE TANK CAR MARKETS.  AS THE PROGRAM PROGRESSED, MOST OF THE
MAJOR COMPANIES CONTINUED TO BUY FROM THE SAME "DANCING PARTNERS" WITH
WHOM THEY HAD STARTED. 

ONE OF THE TASKS OF THE MECHANICAL SUB-COMMITTEE WAS TO KEEP ITSELF
INFORMED AS TO THE CURRENT PRICES OF GASOLINE AND TO USE ITS PERSUASION
AND INFLUENCE TO SEE TO IT THAT THE MAJORS PAID A FAIR GOING MARKET
PRICE AND DID NOT "CHISEL" ON THE SMALL REFINERS.  IT DID SO.  AT ITS
MEETINGS DURING THE SPRING OF 1935 THE QUESTION OF THE FAIR GOING
MARKET PRICE WAS DISCUSSED.  FOR EXAMPLE, JACOBI, A MEMBER OF THE SUB
COMMITTEE, TESTIFIED THAT AT THE MEETING OF MARCH 14, 1935, "THE
SUBCOMMITTEE  ...  ARRIVED AT WHAT WE THOUGHT WAS A FAIR MARKET PRICE
FOR THE WEEK FOLLOWING," VIZ. 3 3/4[ AND 4 3/4[.  FN24  JACOBI TERMED
THESE PRICES ARRIVED AT BY THE SUB-COMMITTEE AS THE "RECOMMENDED
PRICES."  HE MADE IT A PRACTICE OF RECOMMENDING THESE PRICES TO THE
MAJOR COMPANIES WITH WHICH HE COMMUNICATED.  ACCORDING TO HIS
TESTIMONY, THOSE "RECOMMENDATIONS" WERE REPRESENTED BY HIM TO BE NOT
THE SUB-COMMITTEE'S BUT HIS OWN IDEA.  MCDOWELL TESTIFIED THAT HE NEVER
MADE ANY SUCH PRICE RECOMMENDATIONS BUT IF ASKED WOULD TELL THE
PURCHASING COMPANIES WHAT HIS OWN COMPANY WAS PAYING FOR GASOLINE. 
FN25  UP TO JUNE 7, 1935, PRICE "RECOMMENDATIONS" WERE MADE FIVE OR
SEVEN TIMES, EACH TIME THE "RECOMMENDED" PRICES CONSTITUTING A PRICE
ADVANCE OF 1/8[ OR 1/4[ OVER THE PREVIOUS "RECOMMENDATION."  NO MORE
PRICE "RECOMMENDATIONS" WERE MADE IN 1935.  IN JANUARY 1936 THERE WAS
AN ADVANCE IN THE PRICE OF CRUDE OIL.  THE MEMBERS OF THE SUB-COMMITTEE
DISCUSSED THE PRICE SITUATION AND CONCLUDED THAT AN ADVANCE OF 1/2[ A
GALLON OF GASOLINE PURCHASED UNDER THE PROGRAM SHOULD BE MADE.  JACOBI
MADE THAT "RECOMMENDATION" TO THE COMPANIES ON HIS LIST. 

WE SHALL DISCUSS LATER THE EFFECT OF THIS BUYING PROGRAM ON THE
MARKET. 

THE MAJOR COMPANIES REGULARLY REPORTED TO BOURQUE, THE TRADE
ASSOCIATION REPRESENTATIVE OF THE MID-CONTINENT INDEPENDENT REFINERS,
THE VOLUME OF THEIR PURCHASES UNDER THE PROGRAM AND THE PRICES PAID. 
REPRESENTATIVES OF ONE OF THE CORPORATE RESPONDENTS REPEATEDLY
CHARACTERIZED ITS PURCHASES UNDER THE PROGRAM AS "QUOTAS,"
"OBLIGATIONS," OR "ALLOCATIONS."  THEY SPOKE OF ONE OF ITS "DANCING
PARTNERS" UNDER THE BUYING PROGRAM AS "ONE OF THE BABIES PLACED IN OUR
LAP LAST SPRING WHEN THIS THING WAS INAUGURATED."  AND THEY STATED THAT
"WE DON'T HAVE MUCH CHOICE AS TO WHOSE MATERIAL WE ARE TO TAKE, WHEN WE
PURCHASE OUTSIDE THIRD GRADE GASOLINE IN CONNECTION WITH THE BUYING
PROGRAM COMMITTEE'S OPERATIONS.  ON SUCH PURCHASES, WE HAVE REFINERIES
'ASSIGNED' TO US."  THIS WAS DOUBTLESS LAYMEN'S, NOT LAWYERS',
LANGUAGE.  AS WE HAVE SAID, THERE DOES NOT APPEAR TO HAVE BEEN ANY
BINDING COMMITMENT TO PURCHASE; THE PLAN WAS WHOLLY VOLUNTARY; THERE IS
NOTHING IN THE RECORD TO INDICATE THAT A PARTICIPANT WOULD BE PENALIZED
FOR FAILURE TO COOPERATE.  BUT THOUGH THE ARRANGEMENT WAS INFORMAL, IT
WAS NONETHELESS EFFECTIVE, AS WE SHALL SEE.  AND, AS STATED BY THE
CIRCUIT COURT OF APPEALS, THERE DID APPEAR TO BE AT LEAST A MORAL
OBLIGATION TO PURCHASE THE AMOUNTS SPECIFIED AT THE FAIR MARKET PRICES
"RECOMMENDED."  THAT ALONE WOULD SEEM TO EXPLAIN WHY SOME OF THE MAJOR
COMPANIES CANCELLED OR DECLINED TO ENTER INTO PROFITABLE DEALS FOR THE
EXCHANGE OF GASOLINE WITH OTHER COMPANIES IN ORDER TO PARTICIPATE IN
THIS BUYING PROGRAM.  RESPONDENT SKELLY OIL CO. APPARENTLY LOST AT
LEAST SOME OF ITS PIPE-LINE TRANSPORTATION PROFIT OF 3/16[ A GALLON "ON
EVERY CAR OF GASOLINE" PURCHASED BY IT IN THE BUYING PROGRAM.  AND BOTH
THAT COMPANY AND RESPONDENT WADHAMS OIL CO. CONTINUED TO MAKE PURCHASES
OF GASOLINE UNDER THE PROGRAM ALTHOUGH THEY WERE UNABLE THEN TO DISPOSE
OF IT. 

UP TO JUNE 1935, THE EXPENSES INCURRED BY THE MEMBERS OF THE
MECHANICAL SUB-COMMITTEE WERE CHARGED TO AND PAID BY THE PLANNING AND
COORDINATION COMMITTEE OF THE CODE OF FAIR COMPETITION FOR THE
PETROLEUM INDUSTRY.  ON MAY 27, 1935, THIS COURT HELD IN SCHECHTER
POULTRY CORP. V. UNITED STATES, 295 U.S. 495, THAT THE CODE-MAKING
AUTHORITY CONFERRED BY THE NATIONAL INDUSTRIAL RECOVERY ACT WAS AN
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER.  SHORTLY THEREAFTER
THE TANK CAR STABILIZATION COMMITTEE HELD A MEETING TO DISCUSS THEIR
FUTURE COURSE OF ACTION.  IT WAS DECIDED THAT THE BUYING PROGRAM SHOULD
CONTINUE.  ACCORDINGLY, THAT COMMITTEE CONTINUED TO MEET EACH MONTH
THROUGH FEBRUARY 1936.  THE PROCEDURE AT THESE MEETINGS WAS ESSENTIALLY
THE SAME AS AT THE EARLIER ONES.  GRADUALLY THE BUYING PROGRAM WORKED
ALMOST AUTOMATICALLY, AS CONTACTS BETWEEN BUYER AND SELLER BECAME WELL
ESTABLISHED.  THE MECHANICAL SUB-COMMITTEE MET AT IRREGULAR INTERVALS
UNTIL DECEMBER 1935.  THEREAFTER IT CONDUCTED ITS WORK ON THE
TELEPHONE. 

C. FORMATION AND NATURE OF THE EAST TEXAS BUYING PROGRAM. 

IN THE MEETINGS WHEN THE MID-CONTINENT BUYING PROGRAM WAS BEING
FORMULATED IT WAS RECOGNIZED THAT IT WOULD BE NECESSARY OR DESIRABLE TO
TAKE THE EAST TEXAS SURPLUS GASOLINE OFF THE MARKET SO THAT IT WOULD
NOT BE A "DISTURBING INFLUENCE IN THE STANDARD OF INDIANA TERRITORY." 
THE REASON WAS THAT WEAKNESS IN EAST TEXAS SPOT MARKET PRICES MIGHT
MAKE EAST TEXAS GASOLINE COMPETITIVE WITH MID-CONTINENT GASOLINE IN THE
MID-WESTERN AREA AND THUS AFFECT MID-CONTINENT SPOT MARKET PRICES.  THE
TANK CAR RATE ON GASOLINE SHIPMENTS FROM THE EAST TEXAS FIELD TO POINTS
IN THE MID-WESTERN AREA WAS ABOUT 1/8[ A GALLON HIGHER THAN FROM THE
MID-CONTINENT FIELD.  WITH EAST TEXAS SPOT MARKET PRICES MORE THAN 1/8[
A GALLON BELOW MID-CONTINENT SPOT MARKET PRICES, THERE MIGHT WELL BE A
RESULTING DEPRESSING EFFECT ON THE MID-CONTINENT SPOT MARKET PRICES. 
FN26 

EARLY IN 1935 THE EAST TEXAS REFINERS' MARKETING ASSOCIATION WAS
FORMED TO DISPOSE OF THE SURPLUS GASOLINE MANUFACTURED BY THE EAST
TEXAS REFINERS.  THE OCCASION FOR THE FORMATION OF THIS ASSOCIATION WAS
THE STOPPAGE OF THE SHIPMENT OF HOT OIL AND GASOLINE AS A CONSEQUENCE
OF A TEXAS LAW ENACTED IN DECEMBER 1934.  AS LONG AS THESE REFINERS HAD
OPERATED ON CHEAP HOT OIL THEY HAD BEEN ABLE TO COMPETE FOR BUSINESS
THROUGHOUT THE MIDDLE WEST.  IF THEY USED LEGAL CRUDE AT A DOLLAR A
BARREL, THEIR COSTS WOULD INCREASE.  THEIR SHIFT FROM A HOT OIL TO A
LEGAL OIL BASIS NECESSITATED A CHANGE IN THEIR MARKETING METHODS.  THEY
WERE ALREADY SUPPLYING JOBBERS AND DEALERS OF TEXAS WITH ALL THE
GASOLINE THEY COULD USE.  HENCE, THEIR PROBLEM WAS TO FIND ADDITIONAL
MARKETS FOR THE SURPLUS GASOLINE WHICH THEY MANUFACTURED FROM LEGAL
CRUDE.  THE ASSOCIATION WAS TO ACT AS THE SALES AGENCY FOR THOSE
SURPLUSES.  SHIPMENTS NORTH WOULD BE AGAINST THE FREIGHT DIFFERENTIAL. 
THEREFORE, WITHOUT REGULAR OUTLETS FOR THIS SURPLUS GASOLINE THEY WOULD
HAVE BEEN FORCED TO DUMP IT ON THE MARKET AT DISTRESS PRICES.  THEIR
PLAN WAS TO PERSUADE THE MAJOR COMPANIES IF POSSIBLE TO BUY MORE EAST
TEXAS GASOLINE AND TO PURCHASE IT THROUGH THE ASSOCIATION WHICH WOULD
ALLOCATE IT AMONG ITS MEMBERS WHO HAD SURPLUSES.  NEIL BUCKLEY, A BUYER
FOR CITIES SERVICE EXPORT CORPORATION IN TULSA, WAS RECOMMENDED BY ONE
OF THE INDEPENDENTS AS THE CONTACT MAN.  BUCKLEY UNDERTOOK THE JOB. 
FN27 

THUS IT WAS NOT ESTABLISHED THAT THE MAJOR COMPANIES CAUSED THE
ASSOCIATION TO BE FORMED.  BUT IT IS CLEAR THAT THE SERVICES OF THE
ASSOCIATION WERE UTILIZED IN CONNECTION WITH A BUYING PROGRAM BY
DEFENDANT COMPANIES.  THE RECORD IS QUITE VOLUMINOUS ON THE ACTIVITIES
OF BUCKLEY IN GETTING THE SUPPORT OF THE MAJORS TO THE ASSOCIATION'S
PROGRAM.  SUFFICE IT TO SAY THAT HE ENCOUNTERED MANY DIFFICULTIES, MOST
OF THEM DUE TO THE SUSPICION AND MISTRUST OF THE MAJORS AS A RESULT OF
THE EARLIER HOT OIL RECORD OF THE EAST TEXAS INDEPENDENTS.  HIS INITIAL
TASK WAS TO CONVINCE THE MAJORS OF THE GOOD FAITH OF THE EAST TEXAS
INDEPENDENTS.  MANY CONFERENCES WERE HAD.  ARNOTT GAVE HELP TO
BUCKLEY.  THUS, ON MARCH 1, 1935, ARNOTT WIRED A SMALL GROUP OF
REPRESENTATIVES OF MAJOR COMPANIES, WHO WERE BUYERS AND USERS OF EAST
TEXAS GASOLINE, INVITING THEM TO ATTEND A MEETING IN NEW YORK CITY ON
MARCH 6TH "TO HEAR OUTCOME MY MEETING WITH EAST TEXAS REFINERS AND TO
CONSIDER FUTURE ACTION SURPLUS GASOLINE THIS AND OTHER GROUPS THAT IS
AWAITING OUR DECISION  ...  MATTER OF EXTREME IMPORTANCE."  THE PROBLEM
WAS DISCUSSED AT THAT MEETING  FN28  BUT RELIABLE INFORMATION WAS
LACKING AS TO THE PROBABLE AMOUNT OF DISTRESS GASOLINE, THE SIZE OF THE
INDEPENDENTS' FEDERAL ALLOCATIONS AND WHETHER OR NOT SUCH GASOLINE WAS
GOING TO BE MANUFACTURED WITHIN THOSE ALLOCATIONS.  ACCORDINGLY ARNOTT
APPOINTED A COMMITTEE TO ATTEND THE MEETING OF THE DISTRICT ALLOCATORS
FN29  ON MARCH 13TH AND TO OBTAIN THE INFORMATION.  THAT INFORMATION
WAS OBTAINED AND A SCHEDULE WAS PREPARED SHOWING THE PROBABLE AMOUNT OF
SURPLUS GASOLINE IN EAST TEXAS AND THE GULF, THE NAMES OF THE REGULAR
BUYERS IN THOSE AREAS, AND THE AMOUNTS THEY MIGHT TAKE.  ARNOTT, ON
MARCH 14TH, BY TELEGRAPH CALLED ANOTHER MEETING IN NEW YORK CITY FOR
THE NEXT DAY, SAYING "THE QUESTION OF SURPLUS GASOLINE WHICH HAS BEEN
UNDER CONSIDERATION MUST BE FINALIZED TOMORROW."  AT THAT MEETING
SOMEONE (APPARENTLY A REPRESENTATIVE OF RESPONDENT SINCLAIR) "AROSE
WITH A SLIP OF PAPER IN HIS HAND AND STATED THAT IT HAD BEEN SUGGESTED"
THAT EACH OF 12 TO 15 MAJOR COMPANIES "TAKE SO MUCH GASOLINE" FROM EAST
TEXAS, "THE AMOUNTS BEING READ OFF AS TO WHAT EACH COMPANY WOULD
TAKE."  NOTHING DEFINITE WAS DECIDED AT THE MEETING.  BUCKLEY CONTINUED
HIS EFFORTS, TALKING WITH ARNOTT AND REPRESENTATIVES OF OTHER MAJORS. 
IT IS IMPOSSIBLE TO FIND FROM THE RECORD THE EXACT POINT OF
CRYSTALLIZATION OF A BUYING PROGRAM.  BUT IT IS CLEAR THAT AS A RESULT
OF BUCKLEY'S AND ARNOTT'S EFFORTS AND OF THE DISCUSSIONS AT THE VARIOUS
MEETINGS VARIOUS MAJOR COMPANIES DID COME INTO LINE AND THAT A
CONCERTED BUYING PROGRAM WAS LAUNCHED.  THE CORRESPONDENCE OF EMPLOYEES
OF SOME OF THE MAJORS THROUGHOUT THE PERIOD IN QUESTION IS REPLETE WITH
REFERENCES SUCH AS THE FOLLOWING:  "BUYING PROGRAM IN EAST TEXAS"; "OUR
ALLOCATION OF FIVE CARS PER DAY"; "A GENERAL BUYING MOVEMENT"; "REGULAR
WEEKLY PURCHASES FROM THE EAST TEXAS GROUP"; "ALLOCATIONS AND
PURCHASES" IN THE EAST TEXAS FIELD; AND THE LIKE. 

IN 1935 THE EAST TEXAS REFINERS NAMED IN THE INDICTMENT SOLD
285,592,188 GALLONS OF GASOLINE.  OF THIS CERTAIN DEFENDANT COMPANIES
FN30  BOUGHT 40,195,754 GALLONS OR 14.07%.  IN THE SAME YEAR ALL
INDEPENDENT REFINERS IN EAST TEXAS SOLD 378,920,346 GALLONS -
PRACTICALLY ALL OF IT ON THE SPOT MARKET.  OF THIS AMOUNT THOSE
DEFENDANT COMPANIES PURCHASED 12.03% OR 45,598,453 GALLONS.  OF THE
8,797 TANK CARS PURCHASED BY ALL DEFENDANTS (EXCEPT SINCLAIR) FROM
MARCH 1935 THROUGH APRIL 1936 FROM INDEPENDENT REFINERS IN THE EAST
TEXAS FIELD, 2,412 TANK CARS WERE PURCHASED BY THE PRESENT CORPORATE
RESPONDENTS.    EVERY MONDAY MORNING THE SECRETARY OF THE EAST TEXAS
ASSOCIATION ASCERTAINED FROM EACH MEMBER THE AMOUNT OF HIS FORTHCOMING
WEEKLY SURPLUS GASOLINE AND THE PRICE HE WANTED.  HE USED THE CONSENSUS
OF OPINION AS THE ASKING PRICE.  HE WOULD CALL THE MAJOR COMPANIES;
THEY WOULD CALL HIM.  HE EXCHANGED MARKET INFORMATION WITH THEM. 
ORDERS RECEIVED FOR LESS THAN THE ASKING PRICE WOULD NOT BE HANDLED BY
THE ASSOCIATION; RATHER THE SECRETARY WOULD REFER THE BUYER TO ONE OF
THE INDEPENDENTS WHO MIGHT SELL AT THE LOWER PRICE.  VERY FEW CARS WERE
PURCHASED THROUGH THE ASSOCIATION BY OTHERS THAN THE MAJOR OIL
COMPANIES.  FN31  THE MAJORS BOUGHT ABOUT 7,000 TANK CARS THROUGH THE
ASSOCIATION IN 1935 AND ABOUT 2,700 TANK CARS IN THE FIRST FOUR MONTHS
OF 1936.  AND IN 1935 THE SECRETARY OF THE ASSOCIATION PLACED AN
ADDITIONAL 1,000 TANK CARS BY BRINGING THE PURCHASERS AND THE
INDEPENDENT REFINERS TOGETHER.  THE PURCHASES IN 1935 IN EAST TEXAS
WERE, WITH MINOR EXCEPTIONS, EITHER AT THE LOW OR SLIGHTLY BELOW THE
LOW QUOTATION IN PLATT'S OILGRAM, FOLLOWING IT CLOSELY AS THE MARKET
ROSE IN MARCH, APRIL, AND MAY, 1935; THEY CONFORMED TO THE MARKET AS IT
FLATTENED OUT INTO MORE OR LESS OF A PLATEAU THROUGH THE BALANCE OF
1935 WITH A LOW FOR THIRD GRADE GASOLINE OF 4 5/8[.  THIS WAS
CONSISTENT WITH THE POLICY OF THE BUYING PROGRAM.  FOR THE MAJORS WERE
REQUESTED TO PURCHASE AT THE "FAIR, GOING MARKET PRICE."  FN32  AND IT
IS CLEAR THAT THIS EAST TEXAS BUYING PROGRAM WAS, AS WE HAVE SAID,
SUPPLEMENTARY OR AUXILIARY TO THE MID-CONTINENT PROGRAM.  AS STATED IN
MARCH 1935 IN AN INTER-COMPANY MEMORANDUM OF ONE OF THE MAJORS:  "  ...
WITH EAST COAST REFINERS HAVING A PROGRAM TO PURCHASE SURPLUS EAST
TEXAS GASOLINE OVER THE NEXT FOUR MONTHS, WE FEEL THAT STILL FURTHER
ADVANCES CAN BE MADE IN THE TANK CAR MARKET AND A RESULTANT INCREASE IN
THE SERVICE STATION PRICE." 

D. SCOPE AND PURPOSE OF THE ALLEGED CONSPIRACY. 

AS A RESULT OF THESE BUYING PROGRAMS IT WAS HOPED AND INTENDED THAT
BOTH THE TANK CAR AND THE RETAIL MARKETS WOULD IMPROVE.  THE CONCLUSION
IS IRRESISTIBLE THAT DEFENDANTS' PURPOSE WAS NOT MERELY TO RAISE THE
SPOT MARKET PRICES BUT, AS THE REAL AND ULTIMATE END, TO RAISE THE
PRICE OF GASOLINE IN THEIR SALES TO JOBBERS AND CONSUMERS IN THE MID
WESTERN AREA.  THEIR AGREEMENT OR PLAN EMBRACED NOT ONLY BUYING ON THE
SPOT MARKETS BUT ALSO, AT LEAST BY CLEAR IMPLICATION, AN UNDERSTANDING
TO MAINTAIN SUCH IMPROVEMENTS IN MID-WESTERN PRICES AS WOULD RESULT
FROM THOSE PURCHASES OF DISTRESS GASOLINE.  THE LATTER OBVIOUSLY WOULD
BE ACHIEVED BY SELLING AT THE INCREASED PRICES, NOT BY PRICE CUTTING. 
ANY OTHER UNDERSTANDING WOULD HAVE BEEN WHOLLY INCONSISTENT WITH AND
CONTRARY TO THE PHILOSOPHY OF THE BROAD STABILIZATION EFFORTS WHICH
WERE UNDER WAY.  IN ESSENCE THE RAISING AND MAINTENANCE OF THE SPOT
MARKET PRICES WERE BUT THE MEANS ADOPTED FOR RAISING AND MAINTAINING
PRICES TO JOBBERS AND CONSUMERS.  THE BROAD SWEEP OF THE AGREEMENT WAS
INDICATED BY ARNOTT BEFORE A GROUP OF THE INDUSTRY ON MARCH 13, 1935. 
HE DESCRIBED THE PLAN AS ONE "WHEREBY THIS WHOLE STABILIZATION EFFORT
OF MARKETS, THE HOLDING UP OF NORMAL SALES MARKET STRUCTURES, THE
QUESTION OF THE REALIZATION OF REFINERIES, THE WORKING TOGETHER OF
THOSE TWO GREAT GROUPS IN ORDER THAT WE MAY BALANCE THIS WHOLE PICTURE
AND IN ORDER THAT WE MAY INTEREST A GREAT MANY BUYERS IN THIS SO-CALLED
SURPLUS OR HOMELESS GASOLINE, CAN BE DONE ALONG ORGANIZED LINES.   ...
"  CERTAINLY THERE WAS ENOUGH EVIDENCE TO SUPPORT A FINDING BY THE JURY
THAT SUCH WERE THE SCOPE AND PURPOSE OF THE PLAN. 

BUT THERE WAS NO SUBSTANTIAL COMPETENT EVIDENCE THAT DEFENDANTS, AS
CHARGED IN THE INDICTMENT, INDUCED THE INDEPENDENT REFINERS TO CURTAIL
THEIR PRODUCTION. 

E. MARKETING AND DISTRIBUTION METHODS. 

BEFORE DISCUSSING THE EFFECT OF THESE BUYING PROGRAMS, SOME
DESCRIPTION OF THE METHODS OF MARKETING AND DISTRIBUTING GASOLINE IN
THE MID-WESTERN AREA DURING THE INDICTMENT PERIOD IS NECESSARY. 

THE DEFENDANT COMPANIES SOLD ABOUT 83% OF ALL GASOLINE SOLD IN THE
MID-WESTERN AREA DURING 1935.  AS WE HAVE NOTED, MAJOR COMPANIES, SUCH
AS MOST OF THE DEFENDANTS, ARE THOSE WHOSE OPERATIONS ARE FULLY
INTEGRATED - PRODUCING CRUDE OIL, HAVING PIPE LINES FOR SHIPMENT OF THE
CRUDE TO ITS REFINERIES, REFINING CRUDE OIL, AND MARKETING GASOLINE AT
RETAIL AND AT WHOLESALE.  DURING THE GREATER PART OF THE INDICTMENT
PERIOD THE DEFENDANT COMPANIES OWNED AND OPERATED MANY RETAIL SERVICE
STATIONS  FN33  THROUGH WHICH THEY SOLD ABOUT 20% OF THEIR MID-WESTERN
GASOLINE IN 1935 AND ABOUT 12% DURING THE FIRST SEVEN MONTHS OF 1936. 
STANDARD OIL COMPANY (INDIANA)  FN34  WAS KNOWN DURING THIS PERIOD AS
THE PRICE LEADER OR MARKET LEADER THROUGHOUT THE MID-WESTERN AREA.  IT
WAS CUSTOMARY FOR RETAIL DISTRIBUTORS, WHETHER INDEPENDENT OR OWNED OR
CONTROLLED BY MAJOR COMPANIES, TO FOLLOW STANDARD'S POSTED RETAIL
PRICES.  ITS POSTED RETAIL PRICE IN ANY GIVEN PLACE IN THE MID-WESTERN
AREA WAS DETERMINED BY COMPUTING THE MID-CONTINENT SPOT MARKET PRICE
AND ADDING THERETO THE TANK CAR FREIGHT RATE FROM THE MID-CONTINENT
FIELD, TAXES AND 5 1/2[.  THE 5 1/2[ WAS THE EQUIVALENT OF THE
CUSTOMARY 2[ JOBBER MARGIN AND 3 1/2[ SERVICE STATION MARGIN.  IN THIS
MANNER THE RETAIL PRICE STRUCTURE THROUGHOUT THE MID-WESTERN AREA
DURING THE INDICTMENT PERIOD WAS BASED IN THE MAIN ON MID-CONTINENT
SPOT MARKET QUOTATIONS,  FN35  OR, AS STATED BY ONE OF THE WITNESSES
FOR THE DEFENDANTS, THE SPOT MARKET WAS A "PEG TO HANG THE PRICE
STRUCTURE ON." 

ABOUT 24% OF DEFENDANT COMPANIES' SALES IN THE MID-WESTERN AREA IN
1935 WERE TO JOBBERS, WHO PERFORM THE FUNCTION OF MIDDLEMEN OR
WHOLESALERS.  SINCE 1925 JOBBERS WERE PURCHASING LESS OF THEIR GASOLINE
ON THE SPOT TANK CAR MARKETS AND MORE UNDER LONG TERM SUPPLY CONTRACTS
FROM MAJOR COMPANIES AND INDEPENDENT REFINERS.  THESE CONTRACTS USUALLY
RAN FOR A YEAR OR MORE AND COVERED ALL OF THE JOBBER'S GASOLINE
REQUIREMENTS DURING THE PERIOD.  THE PRICE WHICH THE JOBBER WAS TO PAY
OVER THE LIFE OF THE CONTRACT WAS NOT FIXED; BUT A FORMULA FOR ITS
COMPUTATION WAS INCLUDED.  ABOUT 80% OR MORE OF DEFENDANT COMPANIES'
JOBBER CONTRACTS PROVIDED THAT THE PRICE OF GASOLINE SOLD THEREUNDER
SHOULD BE THE MID-CONTINENT SPOT MARKET PRICE ON THE DATE OF SHIPMENT. 
THIS SPOT MARKET PRICE WAS TO BE DETERMINED BY AVERAGING THE HIGH AND
LOW SPOT MARKET QUOTATIONS REPORTED IN THE CHICAGO JOURNAL OF COMMERCE
AND PLATT'S OILGRAM OR BY AVERAGING THE HIGH AND LOW QUOTATIONS
REPORTED IN THE JOURNAL ALONE.  THE CONTRACTS ALSO GAVE THE JOBBER A
WHOLLY OR PARTIALLY GUARANTEED MARGIN BETWEEN THE PRICE HE HAD TO PAY
FOR THE GASOLINE AND THE NORMAL PRICE TO SERVICE STATIONS - CUSTOMARILY
A 2[ MARGIN.  FN36 

THERE IS NO CENTRAL EXCHANGE OR MARKET PLACE FOR SPOT MARKET
TRANSACTIONS.  EACH SALE IS THE RESULT OF INDIVIDUAL BARGAINING BETWEEN
A REFINER AND HIS CUSTOMERS, SALES UNDER LONG-TERM CONTRACTS NOT BEING
INCLUDED.  IT IS A "SPOT" MARKET BECAUSE SHIPMENT IS TO BE MADE IN THE
IMMEDIATE FUTURE - USUALLY WITHIN TEN OR FIFTEEN DAYS.  SALES ON THE
SPOT TANK CAR MARKETS ARE EITHER SALES TO JOBBERS OR CONSUMERS, SALES
BY ONE REFINER TO ANOTHER NOT BEING INCLUDED.  FN37 THE PRICES PAID BY
JOBBERS AND CONSUMERS IN THE VARIOUS SPOT MARKETS ARE PUBLISHED DAILY
IN THE TRADE JOURNALS, PLATT'S OILGRAM AND CHICAGO JOURNAL OF
COMMERCE.  IN THE CASE OF THE OILGRAM THESE PRICES ARE OBTAINED BY A
MARKET CHECKER WHO DAILY CALLS REFINERS IN THE VARIOUS REFINERY AREAS
(MAJOR COMPANIES AS WELL AS INDEPENDENTS) AND ASCERTAINS THE QUANTITY
AND PRICE OF GASOLINE WHICH THEY HAVE SOLD TO JOBBERS IN SPOT SALES. 
FN38  AFTER CHECKING THE PRICES SO OBTAINED AGAINST OTHER SOURCES OF
INFORMATION (SUCH AS BROKERS' SALES) AND AFTER CONSIDERING THE VOLUME
OF SALES REPORTED AT EACH PRICE, HE DETERMINES THE LOWEST AND HIGHEST
PRICES AT WHICH GASOLINE IS BEING SOLD TO JOBBERS IN SUBSTANTIAL
QUANTITIES ON THE SPOT MARKET.  FN39  THUS, IF HE FINDS THAT
SUBSTANTIAL SALES ARE REPORTED AT 5 1/8[, 5 1/4[ AND 5 3/8[, THE
OILGRAM REPORTS A PRICE RANGE OF 5 1/8-5 3/8[.  THE RESULT IS PUBLISHED
IN THE OILGRAM THAT SAME DAY.  FN40  THE CHICAGO JOURNAL OF COMMERCE
PUBLISHES SIMILAR QUOTATIONS THE DAY AFTER THE SALES ARE REPORTED.  AND
ITS QUOTATIONS COVER SALES TO INDUSTRIAL CONSUMERS AS WELL AS TO
JOBBERS.  BUT IT WAS NOT SHOWN THAT EITHER JOURNAL HAD PUBLISHED PRICES
PAID BY A MAJOR COMPANY AS A PRICE PAID BY JOBBERS ON THE TANK CAR
MARKET. 

F. THE SPOT MARKET PRICES DURING THE BUYING PROGRAM. 

IN 1935 THE 14 INDEPENDENT MID-CONTINENT REFINERS NAMED IN THE
INDICTMENT SOLD 377,988,736 GALLONS OF GASOLINE.  OF THAT OUTPUT, THE
CORPORATE RESPONDENTS PURCHASED ABOUT 56,200,000 GALLONS OR
APPROXIMATELY 15%  FN41  AND THE DEFENDANT COMPANIES WHO WENT TO TRIAL,
ABOUT 17%.  THE MONTHLY PURCHASES OF ALL DEFENDANT COMPANIES FROM MID
CONTINENT INDEPENDENTS FROM MARCH 1935 TO APRIL 1936 USUALLY RANGED
BETWEEN 600 AND 900 TANK CARS AND IN A FEW MONTHS SOMEWHAT EXCEEDED
THOSE AMOUNTS. 

MAJOR COMPANY BUYING BEGAN UNDER THE MID-CONTINENT PROGRAM ON MARCH
7, 1935.  DURING THE WEEK BEFORE THAT BUYING COMMENCED THE MID
CONTINENT SPOT MARKET FOR THIRD GRADE GASOLINE ROSE 3/8[. THE LOW
QUOTATION ON THIRD GRADE GASOLINE WAS 3 1/2[ ON MARCH 6, 1935.  IT ROSE
TO 4 3/4[ EARLY IN JUNE.  THAT ADVANCE WAS EVIDENCED BY TEN SUCCESSIVE
STEPS.  THE MARKET ON THIRD GRADE GASOLINE THEN LEVELLED OUT ON A
PLATEAU WHICH EXTENDED INTO JANUARY 1936, EXCEPT FOR A TEMPORARY
DECLINE IN THE LOW QUOTATION LATE IN 1935.  BY THE MIDDLE OF JANUARY
THE LOW AGAIN HAD RISEN, THIS TIME TO 5 1/4[.  IT HELD SUBSTANTIALLY AT
THAT POINT UNTIL THE MIDDLE OF FEBRUARY 1936.  BY THE END OF FEBRUARY
IT HAD DROPPED TO 5[.  IT THEN LEVELLED OFF AT THAT LOW AND REMAINED
THERE INTO MAY 1936 WHEN THE LOW DROPPED FIRST TO 4 7/8[ AND THEN TO 4
3/4[.  IT STAYED THERE UNTIL THE FIRST WEEK IN JULY 1936.  THE LOW THEN
ROSE TO 4 7/8[, MAINTAINED THAT LEVEL UNTIL MID-AUGUST, THEN STARTED TO
DROP UNTIL BY SUCCESSIVE STEPS IT HAD DECLINED TO 4 1/2[ BEFORE THE
MIDDLE OF SEPTEMBER.  IT STAYED THERE UNTIL EARLY OCTOBER WHEN IT ROSE
TO 4 5/8[, CONTINUING AT THAT LEVEL UNTIL MIDDLE NOVEMBER WHEN IT ROSE
TO 4 3/4[.  THE LOW REMAINED AT SUBSTANTIALLY THAT POINT THROUGHOUT THE
BALANCE OF 1936. 

DURING 1935, AS THE MID-CONTINENT SPOT MARKET FOR THIRD GRADE
GASOLINE WAS RISING, SO WAS THE EAST TEXAS SPOT MARKET.  AND WHEN IN
JUNE 1935 THE FORMER LEVELLED OFF FOR THE BALANCE OF THE YEAR AT A LOW
OF 4 3/4[, THE LATTER  FN42  LEVELLED OFF, AS WE HAVE SEEN, AT A LOW OF
4 5/8[. 

DURING THIS PERIOD THERE WERE COMPARABLE MOVEMENTS ON THE MID
CONTINENT SPOT MARKET FOR REGULAR GASOLINE.  FROM A LOW OF 4 3/8[ ON
MARCH 7, 1935, IT ROSE TO A LOW OF 5 5/8[ EARLY IN JUNE, THAT ADVANCE
BEING EVIDENCED BY NINE SUCCESSIVE STEPS.  AS IN THE CASE OF THIRD
GRADE GASOLINE, THE MARKET FOR REGULAR GASOLINE THEN LEVELLED OUT ON A
PLATEAU WHICH EXTENDED INTO JANUARY 1936.  BY THE MIDDLE OF JANUARY THE
LOW HAD RISEN TO 6 1/8[.  IT HELD AT THAT POINT UNTIL THE MIDDLE OF
FEBRUARY 1936.  BY THE END OF FEBRUARY IT HAD DROPPED TO 5 7/8[.  IT
ROSE TO 6[ IN THE FIRST WEEK OF MARCH, LEVELLED OFF AT THAT LOW AND
REMAINED THERE INTO AUGUST 1936.  BY MID-AUGUST IT STARTED TO DROP -
REACHING 5 1/2[ IN SEPTEMBER, GOING TO 5 5/8[ IN OCTOBER AND TO 5 3/4[
IN NOVEMBER, WHERE IT STAYED THROUGH THE BALANCE OF 1936. 

THESE PLATEAUS ARE CLEARLY SHOWN BY A CHART OF THE MARKET JOURNALS'
QUOTATIONS.  BUT THAT DOES NOT OF COURSE MEAN THAT ALL SALES ON THE
SPOT MARKET WERE MADE BETWEEN THE HIGH AND THE LOW DURING THE PERIOD IN
QUESTION.  AS WE HAVE SAID, THE QUOTATIONS OF THE MARKET JOURNALS
MERELY INDICATED THE RANGE OF PRICES (USUALLY AN EIGHTH) WITHIN WHICH
THE BULK OF THE GASOLINE WAS BEING SOLD.  HENCE ACTUAL SALES TOOK PLACE
ABOVE THE HIGH AND BELOW THE LOW.  THUS BETWEEN JUNE AND DECEMBER 1935
WHILE THE LOW FOR THIRD GRADE GASOLINE REMAINED SUBSTANTIALLY AT 4 3/4[
AND THE HIGH AT 4 7/8[ JOBBERS' AND CONSUMERS' PURCHASES N43 RANGED
FROM 4 3/8[ TO 5 1/8[.  A SIMILAR CONDITION EXISTED AS RESPECTS REGULAR
GASOLINE. 

PURCHASES BY THE MAJOR COMPANIES LIKEWISE DID NOT ALWAYS FALL WITHIN
THE RANGE OF THESE QUOTATIONS.  IN FACT, BETWEEN 85 AND 90% OF THEIR
PURCHASES FROM THE INDEPENDENT REFINERS WERE MADE AT PRICES WHICH WERE
AT OR BELOW THE LOW QUOTATIONS IN THE MARKET JOURNALS.  FN44  THERE
WERE FEW SUCH PURCHASES ABOVE THE HIGH AND NOT A SUBSTANTIAL PERCENTAGE
AT THE HIGH.  FN45 

G. JOBBER AND RETAIL PRICES DURING THE BUYING PROGRAMS. 

THAT THE SPOT MARKET PRICES CONTROLLED PRICES OF GASOLINE SOLD BY THE
MAJORS TO THE JOBBERS IN THE MID-WESTERN AREA DURING THE INDICTMENT
PERIOD IS BEYOND QUESTION.  FOR, AS WE HAVE SEEN, THE VAST MAJORITY OF
JOBBERS' SUPPLY CONTRACTS DURING THAT PERIOD CONTAINED PRICE FORMULAE
WHICH WERE DIRECTLY DEPENDENT ON THE MID-CONTINENT SPOT MARKET PRICES. 
FN46  HENCE, AS THE LATTER ROSE, THE PRICES TO THE JOBBERS UNDER THOSE
CONTRACTS INCREASED. 

THERE WAS ALSO AMPLE EVIDENCE THAT THE SPOT MARKET PRICES
SUBSTANTIALLY AFFECTED THE RETAIL PRICES IN THE MID-WESTERN AREA DURING
THE INDICTMENT PERIOD.  AS WE HAVE SEEN, STANDARD OF INDIANA WAS KNOWN
DURING THIS PERIOD AS THE PRICE OR MARKET LEADER THROUGHOUT THIS AREA. 
IT WAS CUSTOMARY FOR THE RETAILERS TO FOLLOW STANDARD'S POSTED RETAIL
PRICES, WHICH HAD AS THEIR ORIGINAL BASE THE MID-CONTINENT SPOT MARKET
PRICE.  STANDARD'S POLICY WAS TO MAKE CHANGES IN ITS POSTED RETAIL
PRICE ONLY WHEN THE SPOT MARKET BASE WENT UP OR DOWN AT LEAST 3/10[ A
GALLON AND MAINTAINED THAT CHANGE FOR A PERIOD OF 7 DAYS OR MORE.  FN47
STANDARD'S NET REDUCTION IN POSTED PRICES FOR THE 6 MONTHS PRECEDING
MARCH 1935 WAS 1.9[ PER GALLON.  FROM MARCH 1935 TO JUNE 1935 ITS
POSTED RETAIL PRICES WERE ADVANCED 3/10[ FOUR TIMES.    RETAIL PRICES
IN THE MID-WESTERN AREA KEPT CLOSE STEP WITH MID-CONTINENT SPOT MARKET
PRICES DURING 1935 AND 1936, THOUGH THERE WAS A SHORT LAG BETWEEN
ADVANCES IN THE SPOT MARKET PRICES AND THE CONSEQUENT RISES IN RETAIL
PRICES.  FN48  THIS WAS TRUE IN GENERAL BOTH OF THE SUBNORMAL N49 AND
NORMAL RETAIL PRICES.  TO BE SURE, WHEN THE TANK CAR SPOT MARKET
LEVELLED OUT ON A PLATEAU FROM JUNE TO THE END OF 1935, THERE WAS NOT
QUITE THE SAME EVENNESS IN THE HIGHER PLATEAU OF THE AVERAGE RETAIL
PRICES.  FOR THERE WERE DURING THE PERIOD IN QUESTION LARGE NUMBERS OF
RETAIL PRICE CUTS IN VARIOUS PARTS OF THE MID-WESTERN AREA, THOUGH THEY
DIMINISHED SUBSTANTIALLY DURING THE SPRING AND SUMMER OF 1935.  YET THE
AVERAGE SERVICE STATION PRICE  FN50  (LESS TAX) HAVING REACHED 13.26[
BY THE MIDDLE OF APRIL (FROM 12.56[ NEAR THE FIRST OF MARCH) NEVER ONCE
FELL BELOW THAT AMOUNT; ADVANCED REGULARLY TO 13.83[ BY THE MIDDLE OF
JUNE; DECLINED TO 13.44[ IN AUGUST; AND AFTER AN INCREASE TO 13.60[
DURING THE LAST OF THE SUMMER REMAINED AT 13.41[ DURING THE BALANCE OF
1935 EXCEPT FOR A MINOR INTERMEDIATE DROP.  IN SUM, THE CONTOURS OF THE
RETAIL PRICES CONFORMED IN GENERAL TO THOSE OF THE TANK CAR SPOT
MARKETS.  THE MOVEMENTS OF THE TWO WERE NOT JUST SOMEWHAT COMPARABLE;
THEY WERE STRIKINGLY SIMILAR.  IRRESPECTIVE OF WHETHER THE TANK CAR
SPOT MARKET PRICES CONTROLLED THE RETAIL PRICES IN THIS AREA, THERE WAS
SUBSTANTIAL COMPETENT EVIDENCE THAT THEY INFLUENCED THEM -
SUBSTANTIALLY AND EFFECTIVELY.  AND IN THIS CONNECTION IT WILL BE
RECALLED THAT WHEN THE BUYING PROGRAM WAS FORMULATED IT WAS IN PART
PREDICATED ON THE PROPOSITION THAT A FIRM TANK CAR MARKET WAS NECESSARY
FOR A STABILIZATION OF THE RETAIL MARKETS.  AS REPORTED BY ONE WHO
ATTENDED THE MEETING ON FEBRUARY 5, 1935, WHERE THE BUYING PROGRAM WAS
BEING DISCUSSED:  "IT WAS GENERALLY ASSUMED THAT ALL COMPANIES WOULD
COME INTO THE PICTURE SINCE A STABLE RETAIL MARKET REQUIRES A HIGHER
TANK CAR MARKET." 

IV.  OTHER CIRCUMSTANCES ALLEGEDLY RELEVANT TO THE OFFENSE CHARGED IN
THE INDICTMENT. 

THE FOLLOWING FACTS OR CIRCUMSTANCES WERE DEVELOPED AT THE TRIAL BY
TESTIMONY OR OTHER EVIDENCE OR WERE EMBRACED IN OFFERS OF PROOF MADE BY
RESPONDENTS. 

A. ALLEGED KNOWLEDGE AND ACQUIESCENCE OF THE FEDERAL GOVERNMENT. 

SUCH OF THE FOLLOWING FACTS AS WERE INCLUDED IN RESPONDENTS' OFFERS
OF PROOF WERE NOT SOUGHT TO BE PROVED IN ORDER TO ESTABLISH IMMUNITY
FROM PROSECUTION UNDER THE ANTI-TRUST LAWS.  FOR ADMITTEDLY THE
AUTHORIZATION UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT NECESSARY FOR
SUCH IMMUNITY  FN51  HAD NOT BEEN OBTAINED.  RATHER RESPONDENTS' OFFERS
OF PROOF WERE MADE IN ORDER TO SHOW THE CIRCUMSTANCES WHICH,
RESPONDENTS ARGUE, SHOULD BE TAKEN INTO CONSIDERATION IN ORDER TO JUDGE
THE PURPOSE, EFFECT AND REASONABLENESS OF THEIR ACTIVITIES IN
CONNECTION WITH THE BUYING PROGRAM. 

ARNOTT TESTIFIED THAT ON JANUARY 8 OR 9, 1935, HE REPORTED THE
APPOINTMENT OF THE TANK CAR STABILIZATION COMMITTEE TO OFFICIALS OF THE
PETROLEUM ADMINISTRATIVE BOARD WHO, HE SAID, EXPRESSED GREAT INTEREST
IN IT.  A MEMBER OF THAT COMMITTEE LATE IN JANUARY 1935 ADVISED THE
CHAIRMAN OF THAT BOARD OF THE "NECESSITY FOR ACTION IN GETTING TANK CAR
PRICES UP BEFORE IT IS TOO LATE."  THE CHAIRMAN REPLIED THAT "THE TANK
CAR SITUATION IN RELATION TO THE PRICE OF CRUDE IS ONE ABOUT WHICH WE
HAVE NO DISAGREEMENT.  HOW TO BRING ABOUT A CORRECTION IS THE STUMBLING
BLOCK."  THERE WAS EVIDENCE THAT AT LEAST GENERAL INFORMATION
CONCERNING THE MEETINGS OF THE TANK CAR STABILIZATION COMMITTEE WAS
GIVEN A REPRESENTATIVE OF THE BOARD IN FEBRUARY 1935.  IN MARCH 1935
THE CODE AUTHORITIES, WITH THE APPROVAL OF THE ADMINISTRATOR, ASKED THE
MAJOR COMPANIES TO CURTAIL THEIR MANUFACTURE OF GASOLINE DURING THAT
MONTH BY 1,400,000 BARRELS.  THE PURPOSE WAS SAID TO BE TO AID THE
SMALL REFINERS BY FORCING THE MAJORS TO BUY PART OF THEIR REQUIREMENTS
FROM THEM.  A VOLUNTARY CURTAILMENT OF SOME 960,000 BARRELS WAS MADE. 

ON MARCH 12, 1935, ARNOTT SAW THE CHAIRMAN AND AT LEAST ONE OTHER
REPRESENTATIVE OF THE BOARD.  AMONG OTHER THINGS THE BUYING PROGRAMS
WERE DISCUSSED.  ARNOTT DID NOT ASK FOR THE BOARD'S APPROVAL OF THESE
PROGRAMS NOR ITS "BLESSING."  A REPRESENTATIVE OF THE BOARD TESTIFIED
THAT ARNOTT TOLD THEM THAT HE WAS CONDUCTING THOSE BUYING PROGRAMS "ON
HIS OWN RESPONSIBILITY."  ARNOTT DENIED THIS.  THE CHAIRMAN OF THE
BOARD ASKED ARNOTT IF THE PROGRAMS VIOLATED THE ANTI-TRUST LAWS. 
ARNOTT SAID HE DID NOT BELIEVE THEY DID AND DESCRIBED WHAT HIS GROUP
WAS DOING.  ARNOTT TESTIFIED THAT HE FELT THAT THE BOARD THOUGHT THE
PROGRAM WAS SOUND AND HOPED IT WOULD WORK; AND THAT IF HE HAD THOUGHT
THEY DISAPPROVED, HE WOULD HAVE DISCONTINUED HIS ACTIVITIES.  THERE WAS
NO EVIDENCE THAT THE BOARD TOLD ARNOTT TO DISCONTINUE THE PROGRAM.  BUT
ON MARCH 13, 1935, ARNOTT IN ADDRESSING THE DISTRICT ALLOCATORS'
MEETING SAID, RESPECTING THESE BUYING PROGRAMS: 

"I AM PERFECTLY CONSCIOUS THAT WE HAVE MADE OTHER EFFORTS AT TIMES TO
HAVE THIS QUESTION DEALT WITH.  IT HAS ALWAYS BEEN DONE IN GROUP FORM. 
THAT HAS INVOLVED AGREEMENTS, GROUP AGREEMENTS.  THOSE OF US WHO HAVE
HAD ANYTHING TO DO WHATSOEVER WITH THE WHOLE NATIONAL PICTURE, WHO HAVE
COME TO WASHINGTON AND HAVE HAD ANY EXPERIENCE WITH THE PAB AND
EVENTUALLY THE DEPARTMENT OF JUSTICE, KNOW JUST HOW LONG THAT ROAD IS,
AND FOR SOME GOOD REASON OR FOR SOME UNKNOWN REASON OR FOR NO REASON AT
ALL THOSE AGREEMENTS SEEM TO HAVE DISAPPEARED; THOSE OUTSTANDING
ATTEMPTS - AND THEY WERE REALLY SINCERE AND WORTHY ATTEMPTS - HAVE
DISAPPEARED IN A SORT OF CLOUD OF MYSTERY, AND I DON'T THINK I, FOR
ONE, OR ANYBODY ELSE CAN TELL YOU JUST WHERE THEY HAVE GONE - THEY ARE
OUT OF OUR MINDS, THEY ARE COMPLETED, THEY ARE FINISHED, AND WE ARE NOT
INTERESTED." 

RESPONDENTS ALSO OFFERED TO PROVE THAT A COMMITTEE OF THE INDUSTRY
(THE BLAZER COMMITTEE) APPOINTED BY THE ADMINISTRATOR TO STUDY THE
CONDITION OF THE SMALL UNITS IN THE INDUSTRY, MADE A REPORT TO HIM IN
MARCH 1935 WHICH STATED, INTER ALIA, AS A RECOMMENDATION: 

"WE KNOW OF NOTHING, APART FROM CONTINUED IMPROVEMENT IN CRUDE
PRODUCTION CONTROL, WHICH WOULD BE SO HELPFUL TO THE TANK-CAR PRICE OF
GASOLINE AT THIS TIME AS THE SUBSTANTIAL BUYING OF DISTRESS GASOLINE BY
MAJOR COMPANIES.  WE UNDERSTAND A PROGRAM OF THIS SORT IS BEING
CONSIDERED BY THE INDUSTRY NOW IN CONNECTION WITH A BROAD STABILIZATION
PROGRAM.  WE THEREFORE URGE THAT THE ADMINISTRATOR GIVE IT HIS APPROVAL
AND ACTIVE SUPPORT."  FN52  THEY ALSO OFFERED A MEMORANDUM DATED MARCH
22, 1935, FROM THE CHAIRMAN OF THE PETROLEUM ADMINISTRATIVE BOARD TO
THE ADMINISTRATOR FN53  COMMENTING ON THE ABOVE REPORT AND MAKING THE
FOLLOWING SUGGESTION:  "WE BELIEVE SUCCESS IN CODE ADMINISTRATION,
ASSUMING THAT IT IS TO CONTINUE, REQUIRES THAT SOME OF THE
RECOMMENDATIONS MADE SHOULD BE ADOPTED; E.G., WE HAVE ENCOURAGED
STABILIZATION EFFORTS DESIGNED AT THIS TIME TO AID THE INDEPENDENT
REFINER,  ...  " 

ON APRIL 2, 1935, THE ADMINISTRATOR WROTE ARNOTT, REFERRED TO HIS
LETTER OF JULY 20, 1934 AND STATED, INTER ALIA:  "THE MATTER THAT AT
PRESENT CONCERNS ME IS THE NECESSITY OF COMPLYING WITH THE REQUIREMENTS
OF THE BASIC LAW.  IN AUTHORIZING THE FORMULATION OF A STABILIZATION
PROGRAM, I NECESSARILY CONDITIONED THE AUTHORITY GRANTED, BY PROVIDING
THAT THE REQUIREMENTS OF CLAUSE 2 OF SUBSECTION (A) OF SECTION 3 OF THE
NATIONAL INDUSTRIAL RECOVERY ACT SHOULD BE OBSERVED.  I KNOW YOU WILL
APPRECIATE THAT AGREEMENTS BETWEEN SUPPLYING COMPANIES WHICH MIGHT BE
IN CONFLICT WITH THE ANTI-TRUST LAWS OF THE UNITED STATES REQUIRE
SPECIFIC APPROVAL AFTER DUE CONSIDERATION IF COMPANIES ARE TO RECEIVE
THE PROTECTION AFFORDED BY SECTIONS 4 AND 5 OF THE NATIONAL INDUSTRIAL
RECOVERY ACT. 

"I UNDERSTAND THAT THE TEMPORARY CHARACTER OF A NUMBER OF SITUATIONS
AND THE NEED FOR IMMEDIATE ACTION HAS MADE FORMALIZED AGREEMENTS
IMPRACTICABLE AND IN A NUMBER OF INSTANCES THEY MAY BE UNNECESSARY. 
HOWEVER, WHEN THE UNDERSTANDINGS ARRIVED AT AS BASES OF SOLUTION OF
PRICE WARS AFFECTING THE INDUSTRY OVER A CONSIDERABLE AREA ARE INTENDED
TO OPERATE OVER A DEFINITE PERIOD OF TIME OR INVOLVE SUBSTANTIAL
CHANGES IN THE POLICY OF THE VARIOUS SUPPLYING COMPANIES MADE ONLY IN
CONSIDERATION OF SIMILAR ACTION ON THE PART OF OTHER COMPANIES, IT IS
NECESSARY THAT THE PROCEDURE REQUIRED BY THE RECOVERY ACT BE FOLLOWED
IN ORDER THAT THE ARRANGEMENT BE LEGAL.  IF ANY SUCH AGREEMENTS HAVE
BEEN MADE I SHOULD LIKE A REPORT AS TO THEM.  IF THEY REQUIRE APPROVAL
TO BE EFFECTIVE  ...  I SHOULD BE GLAD TO GIVE CONSIDERATION TO THEM
UNDER THE PROVISIONS OF THE ACT." 

ON APRIL 22, 1935, THE PETROLEUM ADMINISTRATIVE BOARD WROTE A LETTER
TO ARNOTT IMPOSING THREE CONDITIONS ON GENERAL STABILIZATION WORK:  (1)
THERE SHOULD BE NO STABILIZATION MEETING WITHOUT A REPRESENTATIVE OF
THE BOARD BEING PRESENT; (2) EVERY ELEMENT IN THE INDUSTRY SHOULD BE
HEARD FROM BEFORE ANY DECISIONS WERE MADE; (3) NO GENERAL INSTRUCTIONS
SHOULD BE GIVEN UNDER THE JULY 20, 1934 LETTER.  A MEETING OF ARNOTT'S
COMMITTEE AND MEMBERS OF THE BOARD WAS HELD ON MAY 8, 1935.  A
REPRESENTATIVE OF THE BOARD TESTIFIED THAT THEY CALLED ARNOTT "ON THE
CARPET TO REQUEST HIM TO EXPLAIN" TO THEM "WHAT HE HAD BEEN DOING." 
ARNOTT'S GROUP CONSIDERED THE CONDITIONS IMPOSED BY THE BOARD QUITE
IMPOSSIBLE.  THE BOARD ASSIGNED TWO OF ITS STAFF TO WORK THE PROBLEM
OUT WITH ONE OF ARNOTT'S MEN.  ACCORDING TO THE TESTIMONY OF ONE OF THE
REPRESENTATIVES OF THE BOARD AT THAT MEETING, ARNOTT DID NOT ASK FOR
THE BOARD'S APPROVAL OF THE BUYING PROGRAMS - NOTHING BEING SAID "ONE
WAY OR THE OTHER, ABOUT APPROVAL OR DISAPPROVAL."  AND HE TESTIFIED
THAT ARNOTT IN SUBSTANCE WAS TOLD AT THAT MEETING BY THE BOARD'S
CHAIRMAN THAT THE LETTER OF JULY 20, 1934, FROM THE ADMINISTRATOR TO
ARNOTT (QUOTED SUPRA P. 175) DID NOT GIVE AUTHORITY TO CONDUCT ANY
BUYING PROGRAM; FN54  AND THAT ARNOTT SAID HE WAS NOT RELYING ON THAT
LETTER FOR APPROVAL.  ARNOTT, HOWEVER, TESTIFIED THAT HE RECALLED NO
SUCH STATEMENT MADE BY THE BOARD'S CHAIRMAN.  APPARENTLY, HOWEVER,
ARNOTT, IN ANSWER TO QUESTIONS, GAVE A GENERAL EXPLANATION OF THE
BUYING PROGRAMS, STATING THAT THE MAJORS WERE CONTINUING INFORMALLY TO
BUY; THAT THERE WAS NO POOL; THAT NO ONE WAS OBLIGED TO MAKE PURCHASES;
THAT THEY WERE TRYING TO LIFT FROM INDEPENDENT REFINERS DISTRESS
GASOLINE WHICH WAS BURDENING THE MARKET.  FN55 

RESPONDENTS ALSO OFFERED TO PROVE THAT ON MAY 14, 1935, THE CHAIRMAN
OF THE PETROLEUM ADMINISTRATIVE BOARD ASKED ARNOTT TO UNDERTAKE TO
STABILIZE THE PENNSYLVANIA REFINERY MARKET IN THE WAY THAT HE HAD
STABILIZED THE MID-CONTINENT REFINERY MARKET; THAT IN CONNECTION WITH
THIS REQUEST THE BOARD EVINCED SUPPORT AND APPROVAL OF THE MID
CONTINENT BUYING PROGRAM; AND THAT ARNOTT UNDERTOOK TO DO WHAT HE COULD
IN THE MATTER AND CALLED A MEETING OF THE PENNSYLVANIA REFINERS FOR MAY
28, 1935.  APPARENTLY THE SCHECHTER DECISION TERMINATED THAT
UNDERTAKING. 

RESPONDENTS ALSO OFFERED PORTIONS OF A FINAL REPORT  FN56  PREPARED
BY THE MARKETING DIVISION OF THE PETROLEUM ADMINISTRATIVE BOARD WHICH
DISCUSSED THE WORK OF THE GENERAL STABILIZATION COMMITTEE FN57  SAYING,
INTER ALIA:  "ONE OF THE MOST IMPORTANT WAS THE TANK-CAR COMMITTEE,
WHICH ATTEMPTED TO GET THE TANK-CAR MARKET RAISED MORE IN LINE WITH THE
PRICE OF CRUDE RECOVERY COST ON THE THEORY THAT A FIRM TANK-CAR MARKET
WAS ESSENTIAL TO A STABILIZED RETAIL STRUCTURE."  AND RESPONDENTS
OFFERED TESTIMONY OF A MEMBER OF THE BOARD BEFORE A SENATE COMMITTEE IN
1937 RESPECTING THE "BUYING POOL EFFORTS, THAT BEGAN IN DECEMBER OF
1933 AND CONTINUED FROM THEN ON DURING THE ENTIRE PERIOD OF THE
PETROLEUM CODE."  THAT TESTIMONY WAS:  "IT WAS AN EFFORT OF THE
DEPARTMENT AND THE INDUSTRIAL COMMITTEES TO BRING ABOUT THE NORMAL
RELATIONSHIP BETWEEN GASOLINE PRICES AND CRUDE OIL PRICES, IN ORDER TO
PERMIT THE INDEPENDENT, NON-INTEGRATED REFINER TO BE ABLE TO OPERATE
WITHOUT LOSS." 

IN SUM, RESPONDENTS BY THIS AND SIMILAR EVIDENCE OFFERED TO ESTABLISH
THAT THE PETROLEUM ADMINISTRATIVE BOARD KNEW OF THE BUYING PROGRAMS AND
ACQUIESCED IN THEM.  AND RESPONDENTS BY THOSE FACTS, TOGETHER WITH
THOSE DISCUSSED UNDER II, SUPRA, UNDERTOOK TO SHOW THAT THEIR
OBJECTIVES UNDER THE BUYING PROGRAMS WERE IN LINE WITH THOSE OF THE
FEDERAL GOVERNMENT UNDER THE CODE:  TO KEEP THE PRICE OF CRUDE OIL AT A
MINIMUM OF $1 A BARREL; TO RESTORE THE WHOLESALE PRICE LEVEL OF
GASOLINE AT THE REFINERY TO A PARITY WITH CRUDE OIL; TO STABILIZE
RETAIL PRICES AT A NORMAL SPREAD BETWEEN THE REFINERY PRICE AND THE
RETAIL PRICE. 

B. OTHER FACTORS ALLEGED TO HAVE CAUSED OR CONTRIBUTED TO THE RISE IN
THE SPOT MARKET. 

RESPONDENTS DO NOT CONTEND THAT THE BUYING PROGRAMS WERE NOT A FACTOR
IN THE PRICE RISE AND IN THE STABILIZATION OF THE SPOT MARKETS DURING
1935 AND 1936.  BUT THEY DO CONTEND THAT THEY WERE RELATIVELY MINOR
ONES, BECAUSE OF THE PRESENCE OF OTHER ECONOMIC FORCES SUCH AS THE
FOLLOWING: 

1. CONTROL OF PRODUCTION OF CRUDE OIL. 

UNDER THE CODE AN ATTEMPT WAS MADE FOR THE FIRST TIME TO BALANCE THE
PRODUCTION OF CRUDE OIL WITH THE CONSUMPTIVE DEMAND FOR GASOLINE. 
MONTHLY ESTIMATES OF GASOLINE CONSUMPTION WOULD BE MADE BY THE BUREAU
OF MINES.  THE QUANTITY OF CRUDE OIL NECESSARY TO SATISFY THAT DEMAND
WAS ALSO ESTIMATED, BROKEN DOWN INTO ALLOWABLES FOR EACH STATE, AND
RECOMMENDED TO THE STATES.  AND THERE WAS EVIDENCE THAT THE STATES
WOULD APPROXIMATELY CONFORM TO THOSE RECOMMENDATIONS.  AFTER THE CODE
THE OIL STATES CONTINUED THE SAME PRACTICE UNDER AN INTERSTATE COMPACT
WHICH PERMITTED THEM TO AGREE AS TO THE QUANTITIES OF CRUDE OIL WHICH
THEY WOULD ALLOW TO BE PRODUCED.  FN58    2.  CONNALLY ACT. 

AS WE HAVE NOTED, THIS LAW WAS ENACTED LATE IN FEBRUARY 1935 AND
BEGAN TO BE EFFECTIVE THE FIRST PART OF MARCH 1935.  PRIOR TO THIS ACT,
CONTROL OF HOT OIL BY THE STATES HAD NOT BEEN EFFECTIVE FOR ANY
EXTENDED PERIOD OF TIME.  THROUGHOUT 1933 AND 1934 FROM 150,000 TO
200,000 BARRELS OF CRUDE OIL A DAY WERE ESTIMATED TO HAVE BEEN PRODUCED
IN EAST TEXAS IN EXCESS OF THE STATE'S ALLOWABLES, MUCH OF IT GOING
INTO INTERSTATE COMMERCE.  AFTER THE CONNALLY ACT WENT INTO OPERATION,
NO HOT GASOLINE WENT INTO INTERSTATE COMMERCE ACCORDING TO RESPONDENTS'
EVIDENCE.    3.  $1 CRUDE OIL. 

AS WE HAVE NOTED, CRUDE OIL WAS BROUGHT TO A DOLLAR A BARREL NEAR THE
END OF SEPTEMBER 1933.  BEFORE THE CONNALLY ACT, HOWEVER, HOT OIL
FLOODED THE MARKET AT SUBSTANTIALLY LOWER PRICES.  GASOLINE PRODUCED
FROM HOT OIL FORCED THE PRICE OF GASOLINE PRODUCED FROM CRUDE OIL DOWN
BELOW COST.  BUT WITH THE ELIMINATION OF THE HOT OIL, FLUCTUATIONS IN
THE PRICE OF CRUDE CEASED.  THIS HAD A STABILIZING EFFECT ON THE PRICE
OF GASOLINE. 

4.  INCREASE IN CONSUMPTIVE DEMAND. 

BEGINNING IN THE SPRING OF 1935 THERE WAS AN INCREASE IN DEMAND FOR
GASOLINE.  DURING THE WHOLE INDICTMENT PERIOD EVERY MONTH SHOWED AN
INCREASE OVER THE CORRESPONDING MONTH IN THE PREVIOUS YEAR.  FOR THE
ENTIRE YEAR OF 1935 CONSUMPTION FOR THE COUNTRY AS A WHOLE WAS 7% MORE
THAN FOR 1934; THAT FOR 1936 WAS ABOUT 10% OVER 1935 - SUBSTANTIALLY
THE SAME INCREASES TAKING PLACE IN THE MID-WESTERN AREA. 

5.  CONTROL OF INVENTORY WITHDRAWAL AND OF MANUFACTURE OF GASOLINE. 

UNDER THE CODE CRUDE OIL COULD BE WITHDRAWN FROM STORAGE ONLY WITH
THE APPROVAL OF THE ADMINISTRATOR.  ALSO UNDER THE CODE THERE WERE
MANUFACTURING QUOTAS FOR GASOLINE WHICH THROUGH CODE AUTHORITIES WERE
ALLOCATED AMONG THE REFINERS.  IN MARCH 1935, AS WE HAVE SEEN, GASOLINE
INVENTORIES OF THE MAJORS WERE REDUCED BY OVER 900,000 BARRELS THROUGH
A VOLUNTARY CURTAILMENT PROGRAM.  THE DEMAND WAS SO HEAVY THAT THE
INDUSTRY WITHDREW FROM STORAGE AND REFINED OVER 22,000,000 BARRELS OF
CRUDE OIL IN STORAGE IN 1935.  FURTHER, IMPORTS OF CRUDE OIL WERE
LIMITED BY ORDER OF THE ADMINISTRATOR. 

6.  IMPROVED BUSINESS CONDITIONS. 

THE YEARS 1935 AND 1936 WERE MARKED BY IMPROVING GENERAL BUSINESS
CONDITIONS AND RISING PRICES EVERYWHERE. 

MUCH TESTIMONY WAS TAKEN ON THESE AND RELATED POINTS.  IT WAS
DESIGNED TO SHOW THAT UNDER THE CONDITIONS WHICH EXISTED DURING THE
INDICTMENT PERIOD, STABILITY IN THE MARKET WAS TO BE EXPECTED FROM THE
PLAY OF THESE VARIOUS ECONOMIC FORCES.  FOR IT WAS ARGUED THAT BY
REASON OF THOSE FORCES SUPPLY AND DEMAND WERE BROUGHT INTO A REASONABLE
CONTINUING BALANCE WITH THE RESULTANT STABILIZATION OF THE MARKETS. 
AND THERE WAS MUCH TESTIMONY FROM RESPONDENTS' WITNESSES THAT THE ABOVE
FACTORS AS WELL AS THE BUYING PROGRAMS DID CONTRIBUTE TO PRICE
STABILITY DURING THIS PERIOD.  BUT NO WITNESS ASSUMED TO TESTIFY AS TO
HOW MUCH OF A FACTOR THE BUYING PROGRAM HAD BEEN. 

V. APPLICATION OF THE SHERMAN ACT. 

A. CHARGE TO THE JURY 

THE COURT CHARGED THE JURY THAT IT WAS A VIOLATION OF THE SHERMAN ACT
FOR A GROUP OF INDIVIDUALS OR CORPORATIONS TO ACT TOGETHER TO RAISE THE
PRICES TO BE CHARGED FOR THE COMMODITY WHICH THEY MANUFACTURED WHERE
THEY CONTROLLED A SUBSTANTIAL PART OF THE INTERSTATE TRADE AND COMMERCE
IN THAT COMMODITY.  THE COURT STATED THAT WHERE THE MEMBERS OF A
COMBINATION HAD THE POWER TO RAISE PRICES AND ACTED TOGETHER FOR THAT
PURPOSE, THE COMBINATION WAS ILLEGAL; AND THAT IT WAS IMMATERIAL HOW
REASONABLE OR UNREASONABLE THOSE PRICES WERE OR TO WHAT EXTENT THEY HAD
BEEN AFFECTED BY THE COMBINATION.  IT FURTHER CHARGED THAT IF SUCH
ILLEGAL COMBINATION EXISTED, IT DID NOT MATTER THAT THERE MAY ALSO HAVE
BEEN OTHER FACTORS WHICH CONTRIBUTED TO THE RAISING OF THE PRICES.  IN
THAT CONNECTION, IT REFERRED SPECIFICALLY TO THE ECONOMIC FACTORS WHICH
WE HAVE PREVIOUSLY DISCUSSED AND WHICH RESPONDENTS CONTENDED WERE
PRIMARILY RESPONSIBLE FOR THE PRICE RISE AND THE SPOT MARKETS'
STABILITY IN 1935 AND 1936, VIZ. CONTROL OF PRODUCTION, THE CONNALLY
ACT, THE PRICE OF CRUDE OIL, AN INCREASE IN CONSUMPTIVE DEMAND, CONTROL
OF INVENTORIES AND MANUFACTURING QUOTAS, AND IMPROVED BUSINESS
CONDITIONS.  THE COURT THEN CHARGED THAT, UNLESS THE JURY FOUND BEYOND
A REASONABLE DOUBT THAT THE PRICE RISE AND ITS CONTINUANCE WERE
"CAUSED" BY THE COMBINATION AND NOT CAUSED BY THOSE OTHER FACTORS,
VERDICTS OF "NOT GUILTY" SHOULD BE RETURNED.  IT ALSO CHARGED THAT
THERE WAS NO EVIDENCE OF GOVERNMENTAL APPROVAL WHICH WOULD EXEMPT THE
BUYING PROGRAMS FROM THE PROHIBITIONS OF THE SHERMAN ACT; AND THAT
KNOWLEDGE OR ACQUIESCENCE OF OFFICERS OF THE GOVERNMENT OR THE GOOD
INTENTIONS OF THE MEMBERS OF THE COMBINATION WOULD NOT GIVE IMMUNITY
FROM PROSECUTION UNDER THAT ACT. 

THE CIRCUIT COURT OF APPEALS HELD THIS CHARGE TO BE REVERSIBLE ERROR,
SINCE IT WAS BASED UPON THE THEORY THAT SUCH A COMBINATION WAS ILLEGAL
PER SE.  IN ITS VIEW RESPONDENTS' ACTIVITIES WERE NOT UNLAWFUL UNLESS
THEY CONSTITUTED AN UNREASONABLE RESTRAINT OF TRADE.  HENCE, SINCE THAT
ISSUE HAD NOT BEEN SUBMITTED TO THE JURY AND SINCE EVIDENCE BEARING ON
IT HAD BEEN EXCLUDED, THAT COURT REVERSED AND REMANDED FOR A NEW TRIAL
SO THAT THE CHARACTER OF THOSE ACTIVITIES AND THEIR EFFECT ON COMPETION
COULD BE DETERMINED.  IN ANSWER TO THE GOVERNMENT'S PETITION
RESPONDENTS HERE CONTEND THAT THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS WAS CORRECT, SINCE THERE WAS EVIDENCE THAT THEY HAD AFFECTED
PRICES ONLY IN THE SENSE THAT THE REMOVAL OF THE COMPETITIVE EVIL OF
DISTRESS GASOLINE BY THE BUYING PROGRAMS HAD PERMITTED PRICES TO RISE
TO A NORMAL COMPETITIVE LEVEL; THAT THEIR ACTIVITIES PROMOTED RATHER
THAN IMPAIRED FAIR COMPETITIVE OPPORTUNITIES; AND THEREFORE THAT THEIR
ACTIVITIES HAD NOT UNDULY OR UNREASONABLY RESTRAINED TRADE.  AND THEY
ALSO CONTEND THAT CERTAIN EVIDENCE WHICH WAS OFFERED SHOULD HAVE BEEN
ADMITTED AS BEARING ON THE PURPOSE AND END SOUGHT TO BE ATTAINED, THE
EVIL BELIEVED TO EXIST, AND THE NATURE OF THE RESTRAINT AND ITS
EFFECT.  BY THEIR CROSS-PETITION RESPONDENTS CONTEND THAT THE RECORD
CONTAINS NO SUBSTANTIAL COMPETENT EVIDENCE THAT THE COMBINATION, EITHER
IN PURPOSE OR EFFECT, UNREASONABLY RESTRAINED TRADE WITHIN THE MEANING
OF THE SHERMAN ACT, AND THEREFORE THAT THE CIRCUIT COURT OF APPEALS
ERRED IN HOLDING THAT THEY WERE NOT ENTITLED TO DIRECTED VERDICTS OF
ACQUITTAL. 

IN UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392, THIS COURT
SUSTAINED A CONVICTION UNDER THE SHERMAN ACT WHERE THE JURY WAS CHARGED
THAT AN AGREEMENT ON THE PART OF THE MEMBERS OF A COMBINATION,
CONTROLLING A SUBSTANTIAL PART OF AN INDUSTRY, UPON THE PRICES WHICH
THE MEMBERS ARE TO CHARGE FOR THEIR COMMODITY IS IN ITSELF AN
UNREASONABLE RESTRAINT OF TRADE WITHOUT REGARD TO THE REASONABLENESS OF
THE PRICES OR THE GOOD INTENTIONS OF THE COMBINING UNITS.  THERE THE
COMBINATION WAS COMPOSED OF THOSE WHO CONTROLLED SOME 82 PER CENT OF
THE BUSINESS OF MANUFACTURING AND DISTRIBUTING IN THE UNITED STATES
VITREOUS POTTERY.  THEIR OBJECT WAS TO FIX THE PRICES FOR THE SALE OF
THAT COMMODITY.  IN THAT CASE THE TRIAL COURT REFUSED VARIOUS REQUESTS
TO CHARGE THAT THE AGREEMENT TO FIX PRICES DID NOT ITSELF CONSTITUTE A
VIOLATION OF LAW UNLESS THE JURY ALSO FOUND THAT IT UNREASONABLY
RESTRAINED INTERSTATE COMMERCE.  THIS COURT REVIEWED THE VARIOUS PRICE
FIXING CASES UNDER THE SHERMAN ACT BEGINNING WITH UNITED STATES V.
TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290, AND UNITED STATES V. JOINT
TRAFFIC ASSN., 171 U.S. 505, AND SAID "  ...  IT HAS SINCE OFTEN BEEN
DECIDED AND ALWAYS ASSUMED THAT UNIFORM PRICE-FIXING BY THOSE
CONTROLLING IN ANY SUBSTANTIAL MANNER A TRADE OR BUSINESS IN INTERSTATE
COMMERCE IS PROHIBITED BY THE SHERMAN LAW, DESPITE THE REASONABLENESS
OF THE PARTICULAR PRICES AGREED UPON."  (P. 398.)  THIS COURT POINTED
OUT THAT THE SO-CALLED "RULE OF REASON" ANNOUNCED IN STANDARD OIL CO.
V. UNITED STATES, 221 U.S. 1, AND IN UNITED STATES V. AMERICAN TOBACCO
CO., 221 U.S. 106, HAD NOT AFFECTED THIS VIEW OF THE ILLEGALITY OF
PRICEFIXING AGREEMENTS.  AND IN HOLDING THAT AGREEMENTS "TO FIX OR
MAINTAIN PRICES" ARE NOT REASONABLE RESTRAINTS OF TRADE UNDER THE
STATUTE MERELY BECAUSE THE PRICES THEMSELVES ARE REASONABLE, IT SAID
(PP. 397-398): 

"THE AIM AND RESULT OF EVERY PRICE-FIXING AGREEMENT, IF EFFECTIVE, IS
THE ELIMINATION OF ONE FORM OF COMPETITION.  THE POWER TO FIX PRICES,
WHETHER REASONABLY EXERCISED OR NOT, INVOLVES POWER TO CONTROL THE
MARKET AND TO FIX ARBITRARY AND UNREASONABLE PRICES.  THE REASONABLE
PRICE FIXED TODAY MAY THROUGH ECONOMIC AND BUSINESS CHANGES BECOME THE
UNREASONABLE PRICE OF TOMORROW.  ONCE ESTABLISHED, IT MAY BE MAINTAINED
UNCHANGED BECAUSE OF THE ABSENCE OF COMPETITION SECURED BY THE
AGREEMENT FOR A PRICE REASONABLE WHEN FIXED.  AGREEMENTS WHICH CREATE
SUCH POTENTIAL POWER MAY WELL BE HELD TO BE IN THEMSELVES UNREASONABLE
OR UNLAWFUL RESTRAINTS, WITHOUT THE NECESSITY OF MINUTE INQUIRY WHETHER
A PARTICULAR PRICE IS REASONABLE OR UNREASONABLE AS FIXED AND WITHOUT
PLACING ON THE GOVERNMENT IN ENFORCING THE SHERMAN LAW THE BURDEN OF
ASCERTAINING FROM DAY TO DAY WHETHER IT HAS BECOME UNREASONABLE THROUGH
THE MERE VARIATION OF ECONOMIC CONDITIONS.  MOREOVER, IN THE ABSENCE OF
EXPRESS LEGISLATION REQUIRING IT, WE SHOULD HESITATE TO ADOPT A
CONSTRUCTION MAKING THE DIFFERENCE BETWEEN LEGAL AND ILLEGAL CONDUCT IN
THE FIELD OF BUSINESS RELATIONS DEPEND UPON SO UNCERTAIN A TEST AS
WHETHER PRICES ARE REASONABLE - A DETERMINATION WHICH CAN BE
SATISFACTORILY MADE ONLY AFTER A COMPLETE SURVEY OF OUR ECONOMIC
ORGANIZATION AND A CHOICE BETWEEN RIVAL PHILOSOPHIES." 

IN CONCLUSION THIS COURT EMPHASIZED THAT THE SHERMAN ACT IS NOT ONLY A
PROHIBITION AGAINST THE INFLICTION OF A PARTICULAR TYPE OF PUBLIC
INJURY, BUT ALSO, AS STATED IN STANDARD SANITARY MFG. CO. V. UNITED
STATES, 226 U.S. 20, 49, A "LIMITATION OF RIGHTS" WHICH MAY BE "PUSHED
TO EVIL CONSEQUENCES AND THEREFORE RESTRAINED." 

BUT RESPONDENTS CLAIM THAT OTHER DECISIONS OF THIS COURT AFFORD THEM
ADEQUATE DEFENSES TO THE INDICTMENT.  AMONG THOSE ON WHICH THEY PLACE
RELIANCE ARE APPALACHIAN COALS, INC. V. UNITED STATES, 288 U.S. 344;
SUGAR INSTITUTE, INC. V. UNITED STATES, 297 U.S. 553; MAPLE FLOORING
MFRS.  ASSN.  V. UNITED STATES, 268 U.S. 563; CEMENT MFRS.  PROTECTIVE
ASSN. V. UNITED STATES, 268 U.S. 588; CHICAGO BOARD OF TRADE V. UNITED
STATES, 246 U.S. 231; AND THE AMERICAN TOBACCO AND STANDARD OIL CASES,
SUPRA. 

BUT WE DO NOT THINK THAT LINE OF CASES IS APPOSITE.  AS CLEARLY
INDICATED IN THE TRENTON POTTERIES CASE, THE AMERICAN TOBACCO AND
STANDARD OIL CASES HAVE NO APPLICATION TO COMBINATIONS OPERATING
DIRECTLY ON PRICES OR PRICE STRUCTURES. 

AND WE ARE OF THE OPINION THAT APPALACHIAN COALS, INC. V. UNITED
STATES, SUPRA, IS NOT IN POINT. 

IN THAT CASE CERTAIN PRODUCERS OF BITUMINOUS COAL CREATED AN
EXCLUSIVE SELLING AGENCY FOR THEIR COAL.  THE AGENCY WAS TO ESTABLISH
STANDARD CLASSIFICATIONS AND SELL THE COAL OF ITS PRINCIPALS AT THE
BEST PRICES OBTAINABLE.  THE OCCASION FOR THE FORMATION OF THE AGENCY
WAS THE EXISTENCE OF CERTAIN SO-CALLED INJURIOUS PRACTICES AND
CONDITIONS IN THE INDUSTRY.  ONE OF THESE WAS THE PROBLEM OF "DISTRESS
COAL" - COAL SHIPPED TO THE MARKET WHICH WAS UNSOLD AT THE TIME OF
DELIVERY AND THEREFORE DUMPED ON THE MARKET IRRESPECTIVE OF DEMAND. 
THE AGENCY WAS TO PROMOTE THE SYSTEMATIC STUDY OF THE MARKETING AND
DISTRIBUTION OF COAL, ITS DEMAND AND CONSUMPTION; TO MAINTAIN AN
INSPECTION AND AN ENGINEERING DEPARTMENT TO DEMONSTRATE TO CUSTOMERS
THE ADVANTAGES OF THIS TYPE OF COAL AND TO PROMOTE AN EXTENSIVE
ADVERTISING CAMPAIGN; TO PROVIDE A RESEARCH DEPARTMENT TO DEMONSTRATE
PROPER AND EFFICIENT METHODS OF BURNING COAL AND THUS TO AID PRODUCERS
IN THEIR COMPETITION WITH SUBSTITUTE FUELS; TO OPERATE A CREDIT
DEPARTMENT DEALING WITH THE RELIABILITY OF PURCHASERS; AND TO MAKE THE
SALE OF COAL MORE ECONOMICAL.  THAT AGENCY WAS ALSO TO SELL ALL THE
COAL OF ITS PRINCIPALS AT THE BEST PRICES OBTAINABLE AND, IF ALL COULD
NOT BE SOLD, TO APPORTION ORDERS UPON A STATED BASIS.  AND, SAVE FOR
CERTAIN STATED EXCEPTIONS, IT WAS TO DETERMINE THE PRICES AT WHICH
SALES WOULD BE MADE WITHOUT CONSULTATION WITH ITS PRINCIPALS.  THIS
COURT CONCLUDED THAT SO FAR AS ACTUAL PURPOSE WAS CONCERNED, THE
DEFENDANT PRODUCERS WERE ENGAGED IN A "FAIR AND OPEN ENDEAVOR TO AID
THE INDUSTRY IN A MEASURABLE RECOVERY FROM ITS PLIGHT."  AND IT
OBSERVED THAT THE PLAN DID NOT EITHER CONTEMPLATE OR INVOLVE "THE
FIXING OF MARKET PRICES"; THAT DEFENDANTS WOULD NOT BE ABLE TO FIX THE
PRICE OF COAL IN THE CONSUMING MARKETS; THAT THEIR COAL WOULD CONTINUE
TO BE SUBJECT TO "ACTIVE COMPETITION."  TO THE CONTENTION THAT THE PLAN
WOULD HAVE A TENDENCY TO STABILIZE MARKET PRICES AND TO RAISE THEM TO A
HIGHER LEVEL, THIS COURT REPLIED (P. 374): 

"THE FACT THAT THE CORRECTION OF ABUSES MAY TEND TO STABILIZE A
BUSINESS, OR TO PRODUCE FAIRER PRICE LEVELS, DOES NOT MEAN THAT THE
ABUSES SHOULD GO UNCORRECTED OR THAT COOPERATIVE ENDEAVOR TO CORRECT
THEM NECESSARILY CONSTITUTES AN UNREASONABLE RESTRAINT OF TRADE.  THE
INTELLIGENT CONDUCT OF COMMERCE THROUGH THE ACQUISITION OF FULL
INFORMATION OF ALL RELEVANT FACTS MAY PROPERLY BE SOUGHT BY THE
COOPERATION OF THOSE ENGAGED IN TRADE, ALTHOUGH STABILIZATION OF TRADE
AND MORE REASONABLE PRICES MAY BE THE RESULT."  IN DISTINGUISHING THE
TRENTON POTTERIES CASE THIS COURT SAID (P. 375): 

"IN THE INSTANT CASE THERE IS, AS WE HAVE SEEN, NO INTENT OR POWER TO
FIX PRICES, ABUNDANT COMPETITIVE OPPORTUNITIES WILL EXIST IN ALL
MARKETS WHERE DEFENDANTS' COAL IS SOLD, AND NOTHING HAS BEEN SHOWN TO
WARRANT THE CONCLUSION THAT DEFENDANTS' PLAN WILL HAVE AN INJURIOUS
EFFECT UPON COMPETITION IN THESE MARKETS."    THUS IN REALITY THE ONLY
ESSENTIAL THING IN COMMON BETWEEN THE INSTANT CASE AND THE APPALACHIAN
COALS CASE IS THE PRESENCE IN EACH OF SO-CALLED DEMORALIZING OR
INJURIOUS PRACTICES.  THE METHODS OF DEALING WITH THEM WERE QUITE
DIVERGENT.  IN THE INSTANT CASE THERE WERE BUYING PROGRAMS OF DISTRESS
GASOLINE WHICH HAD AS THEIR DIRECT PURPOSE AND AIM THE RAISING AND
MAINTENANCE OF SPOT MARKET PRICES AND OF PRICES TO JOBBERS AND
CONSUMERS IN THE MID-WESTERN AREA, BY THE ELIMINATION OF DISTRESS
GASOLINE AS A MARKET FACTOR.  THE INCREASE IN THE SPOT MARKET PRICES
WAS TO BE ACCOMPLISHED BY A WELL ORGANIZED BUYING PROGRAM ON THAT
MARKET:  REGULAR ASCERTAINMENT OF THE AMOUNTS OF SURPLUS GASOLINE;
ASSIGNMENT OF SELLERS AMONG THE BUYERS; REGULAR PURCHASES AT PRICES
WHICH WOULD PLACE AND KEEP A FLOOR UNDER THE MARKET.  UNLIKE THE PLAN
IN THE INSTANT CASE, THE PLAN IN THE APPALACHIAN COALS CASE WAS NOT
DESIGNED TO OPERATE VIS-A-VIS THE GENERAL CONSUMING MARKET AND TO FIX
THE PRICES ON THAT MARKET.  FURTHERMORE, THE EFFECT, IF ANY, OF THAT
PLAN ON PRICES WAS NOT ONLY WHOLLY INCIDENTAL BUT ALSO HIGHLY
CONJECTURAL.  FOR THE PLAN HAD NOT THEN BEEN PUT INTO OPERATION.  HENCE
THIS COURT EXPRESSLY RESERVED JURISDICTION IN THE DISTRICT COURT TO
TAKE FURTHER PROCEEDINGS IF, INTER ALIA, IN "ACTUAL OPERATION" THE PLAN
PROVED TO BE "AN UNDUE RESTRAINT UPON INTERSTATE COMMERCE."  AND AS WE
HAVE SEEN IT WOULD PER SE CONSTITUTE SUCH A RESTRAINT IF PRICE-FIXING
WERE INVOLVED. 

NOR ARE MAPLE FLOORING MFRS.  ASSN.  V. UNITED STATES AND CEMENT
MFRS.  PROTECTIVE ASSN. V. UNITED STATES, SUPRA, AT ALL RELEVANT TO THE
PROBLEM AT HAND.  FOR THE SYSTEMS THERE UNDER ATTACK WERE METHODS OF
GATHERING AND DISTRIBUTING INFORMATION RESPECTING BUSINESS OPERATIONS. 
IT WAS NOTED IN THOSE CASES THAT THERE WAS NOT PRESENT ANY AGREEMENT
FOR PRICE-FIXING.  AND THEY WERE DECIDED, AS INDICATED IN THE TRENTON
POTTERIES CASE, ON THE EXPRESS ASSUMPTION THAT ANY AGREEMENT FOR PRICE
FIXING WOULD HAVE BEEN ILLEGAL PER SE.  AND SINCE THAT ELEMENT WAS
LACKING, THE ONLY ISSUES WERE WHETHER OR NOT ON THE PRECISE FACTS THERE
PRESENTED SUCH ACTIVITIES OF THE COMBINATIONS CONSTITUTED UNLAWFUL
RESTRAINTS OF COMMERCE.  A MAJORITY OF THE COURT HELD THAT THEY DID
NOT. 

NOR CAN RESPONDENTS FIND SANCTION IN CHICAGO BOARD OF TRADE V. UNITED
STATES, SUPRA, FOR THE BUYING PROGRAMS HERE UNDER ATTACK.  THAT CASE
INVOLVED A PROHIBITION ON THE MEMBERS OF THE CHICAGO BOARD OF TRADE
FROM PURCHASING OR OFFERING TO PURCHASE BETWEEN THE CLOSING OF THE
SESSION AND ITS OPENING THE NEXT DAY GRAINS (UNDER A SPECIAL CLASS OF
CONTRACTS) AT A PRICE OTHER THAN THE CLOSING BID.  THE RULE WAS
SOMEWHAT AKIN TO RULES OF AN EXCHANGE LIMITING THE PERIOD OF TRADING,
FOR AS STATED BY THIS COURT THE "RESTRICTION WAS UPON THE PERIOD OF
PRICEMAKING."  NO ATTEMPT WAS MADE TO SHOW THAT THE PURPOSE OR EFFECT
OF THE RULE WAS TO RAISE OR DEPRESS PRICES.  THE RULE AFFECTED ONLY A
SMALL PROPORTION OF THE COMMERCE IN QUESTION.  AND AMONG ITS EFFECTS
WAS THE CREATION OF A PUBLIC MARKET FOR GRAINS UNDER THAT SPECIAL
CONTRACT CLASS, WHERE PRICES WERE DETERMINED COMPETITIVELY AND OPENLY. 
SINCE IT WAS NOT AIMED AT PRICE MANIPULATION OR THE CONTROL OF THE
MARKET PRICES AND SINCE IT HAD "NO APPRECIABLE EFFECT ON GENERAL MARKET
PRICES," THE RULE SURVIVED AS A REASONABLE RESTRAINT OF TRADE. 

THERE WAS NO DEVIATION FROM THE PRINCIPLE OF THE TRENTON POTTERIES
CASE IN SUGAR INSTITUTE V. UNITED STATES, SUPRA.  FOR IN THAT CASE SO
CALLED COMPETITIVE ABUSES WERE NOT PERMITTED AS DEFENSES TO VIOLATIONS
OF THE SHERMAN ACT BOTTOMED ON A TRADE ASSOCIATION'S EFFORTS TO CREATE
AND MAINTAIN A UNIFORM PRICE STRUCTURE. 

THUS FOR OVER FORTY YEARS THIS COURT HAS CONSISTENTLY AND WITHOUT
DEVIATION ADHERED TO THE PRINCIPLE THAT PRICE-FIXING AGREEMENTS ARE
UNLAWFUL PER SE UNDER THE SHERMAN ACT AND THAT NO SHOWING OF SO-CALLED
COMPETITIVE ABUSES OR EVILS WHICH THOSE AGREEMENTS WERE DESIGNED TO
ELIMINATE OR ALLEVIATE MAY BE INTERPOSED AS A DEFENSE.  AND WE
REAFFIRMED THAT WELL-ESTABLISHED RULE IN CLEAR AND UNEQUIVOCAL TERMS IN
ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, 458, WHERE WE
SAID: 

"AGREEMENTS FOR PRICE MAINTENANCE OF ARTICLES MOVING IN INTERSTATE
COMMERCE ARE, WITHOUT MORE, UNREASONABLE RESTRAINTS WITHIN THE MEANING
OF THE SHERMAN ACT BECAUSE THEY ELIMINATE COMPETITION, UNITED STATES V.
TRENTON POTTERIES CO., 273 U.S. 392, AND AGREEMENTS WHICH CREATE
POTENTIAL POWER FOR SUCH PRICE MAINTENANCE EXHIBITED BY ITS ACTUAL
EXERTION FOR THAT PURPOSE ARE IN THEMSELVES UNLAWFUL RESTRAINTS WITHIN
THE MEANING OF THE SHERMAN ACT,  ...  " 

THEREFORE THE SOLE REMAINING QUESTION ON THIS PHASE OF THE CASE IS
THE APPLICABILITY OF THE RULE OF THE TRENTON POTTERIES CASE TO THESE
FACTS. 

RESPONDENTS SEEK TO DISTINGUISH THE TRENTON POTTERIES CASE FROM THE
INSTANT ONE.  THEY ASSERT THAT IN THAT CASE THE PARTIES SUBSTITUTED AN
AGREED-ON PRICE FOR ONE DETERMINED BY COMPETITION; THAT THE DEFENDANTS
THERE HAD THE POWER AND PURPOSE TO SUPPRESS THE PLAY OF COMPETITION IN
THE DETERMINATION OF THE MARKET PRICE; AND THEREFORE THAT THE
CONTROLLING FACTOR IN THAT DECISION WAS THE DESTRUCTION OF MARKET
COMPETITION, NOT WHETHER PRICES WERE HIGHER OR LOWER, REASONABLE OR
UNREASONABLE.  RESPONDENTS CONTEND THAT IN THE INSTANT CASE THERE WAS
NO ELIMINATION IN THE SPOT TANK CAR MARKET OF COMPETITION WHICH
PREVENTED THE PRICES IN THAT MARKET FROM BEING MADE BY THE PLAY OF
COMPETITION IN SALES BETWEEN INDEPENDENT REFINERS AND THEIR JOBBER AND
CONSUMER CUSTOMERS; THAT DURING THE BUYING PROGRAMS THOSE PRICES WERE
IN FACT DETERMINED BY SUCH COMPETITION; THAT THE PURCHASES UNDER THOSE
PROGRAMS WERE CLOSELY RELATED TO OR DEPENDENT ON THE SPOT MARKET
PRICES; THAT THERE WAS NO EVIDENCE THAT THE PURCHASES OF DISTRESS
GASOLINE UNDER THOSE PROGRAMS HAD ANY EFFECT ON THE COMPETITIVE MARKET
PRICE BEYOND THAT FLOWING FROM THE REMOVAL OF A COMPETITIVE EVIL; AND
THAT IF RESPONDENTS HAD TRIED TO DO MORE THAN FREE COMPETITION FROM THE
EFFECT OF DISTRESS GASOLINE AND TO SET AN ARBITRARY NON-COMPETITIVE
PRICE THROUGH THEIR PURCHASES, THEY WOULD HAVE BEEN WITHOUT POWER TO DO
SO. 

BUT WE DO NOT DEEM THOSE DISTINCTIONS MATERIAL. 

IN THE FIRST PLACE, THERE WAS ABUNDANT EVIDENCE THAT THE COMBINATION
HAD THE PURPOSE TO RAISE PRICES.  AND LIKEWISE, THERE WAS AMPLE
EVIDENCE THAT THE BUYING PROGRAMS AT LEAST CONTRIBUTED TO THE PRICE
RISE AND THE STABILITY OF THE SPOT MARKETS, AND TO INCREASES IN THE
PRICE OF GASOLINE SOLD IN THE MID-WESTERN AREA DURING THE INDICTMENT
PERIOD.  THAT OTHER FACTORS ALSO MAY HAVE CONTRIBUTED TO THAT RISE AND
STABILITY OF THE MARKETS IS IMMATERIAL.  FOR IN ANY SUCH MARKET
MOVEMENT, FORCES OTHER THAN THE PURCHASING POWER OF THE BUYERS NORMALLY
WOULD CONTRIBUTE TO THE PRICE RISE AND THE MARKET STABILITY.  SO FAR AS
CAUSE AND EFFECT ARE CONCERNED IT IS SUFFICIENT IN THIS TYPE OF CASE IF
THE BUYING PROGRAMS OF THE COMBINATION RESULTED IN A PRICE RISE AND
MARKET STABILITY WHICH BUT FOR THEM WOULD NOT HAVE HAPPENED.  FOR THIS
REASON THE CHARGE TO THE JURY THAT THE BUYING PROGRAMS MUST HAVE
"CAUSED" THE PRICE RISE AND ITS CONTINUANCE WAS MORE FAVORABLE TO
RESPONDENTS THAN THEY COULD HAVE REQUIRED.  PROOF THAT THERE WAS A
CONSPIRACY, THAT ITS PURPOSE WAS TO RAISE PRICES, AND THAT IT CAUSED OR
CONTRIBUTED TO A PRICE RISE IS PROOF OF THE ACTUAL CONSUMMATION OR
EXECUTION OF A CONSPIRACY UNDER SEC. 1 OF THE SHERMAN ACT. 

SECONDLY, THE FACT THAT SALES ON THE SPOT MARKETS WERE STILL GOVERNED
BY SOME COMPETITION IS OF NO CONSEQUENCE.  FOR IT IS INDISPUTABLE THAT
THAT COMPETITION WAS RESTRICTED THROUGH THE REMOVAL BY RESPONDENTS OF A
PART OF THE SUPPLY WHICH BUT FOR THE BUYING PROGRAMS WOULD HAVE BEEN A
FACTOR IN DETERMINING THE GOING PRICES ON THOSE MARKETS.  BUT THE VICE
OF THE CONSPIRACY WAS NOT MERELY THE RESTRICTION OF SUPPLY OF GASOLINE
BY REMOVAL OF A SURPLUS.  AS WE HAVE SAID, THIS WAS A WELL ORGANIZED
PROGRAM.  THE TIMING AND STRATEGIC PLACEMENT OF THE BUYING ORDERS FOR
DISTRESS GASOLINE PLAYED AN IMPORTANT AND SIGNIFICANT ROLE.  BUYING
ORDERS WERE CAREFULLY PLACED SO AS TO REMOVE THE DISTRESS GASOLINE FROM
WEAK HANDS.  PURCHASES WERE TIMED.  SELLERS WERE ASSIGNED TO THE BUYERS
SO THAT REGULAR OUTLETS FOR DISTRESS GASOLINE WOULD BE AVAILABLE.  THE
WHOLE SCHEME WAS CAREFULLY PLANNED AND EXECUTED TO THE END THAT
DISTRESS GASOLINE WOULD NOT OVERHANG THE MARKETS AND DEPRESS THEM AT
ANY TIME.  AND AS A RESULT OF THE PAYMENT OF FAIR GOING MARKET PRICES A
FLOOR WAS PLACED AND KEPT UNDER THE SPOT MARKETS.  PRICES ROSE AND
JOBBERS AND CONSUMERS IN THE MID-WESTERN AREA PAID MORE FOR THEIR
GASOLINE THAN THEY WOULD HAVE PAID BUT FOR THE CONSPIRACY.  COMPETITION
WAS NOT ELIMINATED FROM THE MARKETS; BUT IT WAS CLEARLY CURTAILED,
SINCE RESTRICTION OF THE SUPPLY OF GASOLINE, THE TIMING AND PLACEMENT
OF THE PURCHASES UNDER THE BUYING PROGRAMS AND THE PLACING OF A FLOOR
UNDER THE SPOT MARKETS OBVIOUSLY REDUCED THE PLAY OF THE FORCES OF
SUPPLY AND DEMAND. 

THE ELIMINATION OF SO-CALLED COMPETITIVE EVILS IS NO LEGAL
JUSTIFICATION FOR SUCH BUYING PROGRAMS.  THE ELIMINATION OF SUCH
CONDITIONS WAS SOUGHT PRIMARILY FOR ITS EFFECT ON THE PRICE
STRUCTURES.  FAIRER COMPETITIVE PRICES, IT IS CLAIMED, RESULTED WHEN
DISTRESS GASOLINE WAS REMOVED FROM THE MARKET.  BUT SUCH DEFENSE IS
TYPICAL OF THE PROTESTATIONS USUALLY MADE IN PRICE-FIXING CASES. 
RUINOUS COMPETITION, FINANCIAL DISASTER, EVILS OF PRICE CUTTING AND THE
LIKE APPEAR THROUGHOUT OUR HISTORY AS OSTENSIBLE JUSTIFICATIONS FOR
PRICE-FIXING.  IF THE SO-CALLED COMPETITIVE ABUSES WERE TO BE APPRAISED
HERE, THE REASONABLENESS OF PRICES WOULD NECESSARILY BECOME AN ISSUE IN
EVERY PRICE-FIXING CASE.  IN THAT EVENT THE SHERMAN ACT WOULD SOON BE
EMASCULATED; ITS PHILOSOPHY WOULD BE SUPPLANTED BY ONE WHICH IS WHOLLY
ALIEN TO A SYSTEM OF FREE COMPETITION; IT WOULD NOT BE THE CHARTER OF
FREEDOM WHICH ITS FRAMERS INTENDED. 

THE REASONABLENESS OF PRICES HAS NO CONSTANCY DUE TO THE DYNAMIC
QUALITY OF BUSINESS FACTS UNDERLYING PRICE STRUCTURES.  THOSE WHO FIXED
REASONABLE PRICES TODAY WOULD PERPETUATE UNREASONABLE PRICES TOMORROW,
SINCE THOSE PRICES WOULD NOT BE SUBJECT TO CONTINUOUS ADMINISTRATIVE
SUPERVISION AND READJUSTMENT IN LIGHT OF CHANGED CONDITIONS.  THOSE WHO
CONTROLLED THE PRICES WOULD CONTROL OR EFFECTIVELY DOMINATE THE
MARKET.  AND THOSE WHO WERE IN THAT STRATEGIC POSITION WOULD HAVE IT IN
THEIR POWER TO DESTROY OR DRASTICALLY IMPAIR THE COMPETITIVE SYSTEM. 
BUT THE THRUST OF THE RULE IS DEEPER AND REACHES MORE THAN MONOPOLY
POWER.  ANY COMBINATION WHICH TAMPERS WITH PRICE STRUCTURES IS ENGAGED
IN AN UNLAWFUL ACTIVITY.  EVEN THOUGH THE MEMBERS OF THE PRICE-FIXING
GROUP WERE IN NO POSITION TO CONTROL THE MARKET, TO THE EXTENT THAT
THEY RAISED, LOWERED, OR STABILIZED PRICES THEY WOULD BE DIRECTLY
INTERFERING WITH THE FREE PLAY OF MARKET FORCES.  THE ACT PLACES ALL
SUCH SCHEMES BEYOND THE PALE AND PROTECTS THAT VITAL PART OF OUR
ECONOMY AGAINST ANY DEGREE OF INTERFERENCE.  CONGRESS HAS NOT LEFT WITH
US THE DETERMINATION OF WHETHER OR NOT PARTICULAR PRICE-FIXING SCHEMES
ARE WISE OR UNWISE, HEALTHY OR DESTRUCTIVE.  IT HAS NOT PERMITTED THE
AGE-OLD CRY OF RUINOUS COMPETITION AND COMPETITIVE EVILS TO BE A
DEFENSE TO PRICE-FIXING CONSPIRACIES.  IT HAS NO MORE ALLOWED GENUINE
OR FANCIED COMPETITIVE ABUSES AS A LEGAL JUSTIFICATION FOR SUCH SCHEMES
THAN IT HAS THE GOOD INTENTIONS OF THE MEMBERS OF THE COMBINATION.  IF
SUCH A SHIFT IS TO BE MADE, IT MUST BE DONE BY THE CONGRESS.  CERTAINLY
CONGRESS HAS NOT LEFT US WITH ANY SUCH CHOICE.  NOR HAS THE ACT CREATED
OR AUTHORIZED THE CREATION OF ANY SPECIAL EXCEPTION IN FAVOR OF THE OIL
INDUSTRY.  WHATEVER MAY BE ITS PECULIAR PROBLEMS AND CHARACTERISTICS,
THE SHERMAN ACT, SO FAR AS PRICE-FIXING AGREEMENTS ARE CONCERNED,
ESTABLISHES ONE UNIFORM RULE APPLICABLE TO ALL INDUSTRIES ALIKE.  THERE
WAS ACCORDINGLY NO ERROR IN THE REFUSAL TO CHARGE THAT IN ORDER TO
CONVICT THE JURY MUST FIND THAT THE RESULTANT PRICES WERE RAISED AND
MAINTAINED AT "HIGH, ARBITRARY AND NONCOMPETITIVE LEVELS."  THE CHARGE
IN THE INDICTMENT TO THAT EFFECT WAS SURPLUSAGE. 

NOR IS IT IMPORTANT THAT THE PRICES PAID BY THE COMBINATION WERE NOT
FIXED IN THE SENSE THAT THEY WERE UNIFORM AND INFLEXIBLE.  PRICE-FIXING
AS USED IN THE TRENTON POTTERIES CASE HAS NO SUCH LIMITED MEANING.  AN
AGREEMENT TO PAY OR CHARGE RIGID, UNIFORM PRICES WOULD BE AN ILLEGAL
AGREEMENT UNDER THE SHERMAN ACT.  BUT SO WOULD AGREEMENTS TO RAISE OR
LOWER PRICES WHATEVER MACHINERY FOR PRICE-FIXING WAS USED.  THAT PRICE
FIXING INCLUDES MORE THAN THE MERE ESTABLISHMENT OF UNIFORM PRICES IS
CLEARLY EVIDENT FROM THE TRENTON POTTERIES CASE ITSELF, WHERE THIS
COURT NOTED WITH APPROVAL SWIFT & CO. V. UNITED STATES, 196 U.S. 375,
IN WHICH A DECREE WAS AFFIRMED WHICH RESTRAINED A COMBINATION FROM
"RAISING OR LOWERING PRICES OR FIXING UNIFORM PRICES" AT WHICH MEATS
WILL BE SOLD.  HENCE, PRICES ARE FIXED WITHIN THE MEANING OF THE
TRENTON POTTERIES CASE IF THE RANGE WITHIN WHICH PURCHASES OR SALES
WILL BE MADE IS AGREED UPON, IF THE PRICES PAID OR CHARGED ARE TO BE AT
A CERTAIN LEVEL OR ON ASCENDING OR DESCENDING SCALES, IF THEY ARE TO BE
UNIFORM, OR IF BY VARIOUS FORMULAE THEY ARE RELATED TO THE MARKET
PRICES.  THEY ARE FIXED BECAUSE THEY ARE AGREED UPON.  AND THE FACT
THAT, AS HERE, THEY ARE FIXED AT THE FAIR GOING MARKET PRICE IS
IMMATERIAL.  FOR PURCHASES AT OR UNDER THE MARKET ARE ONE SPECIES OF
PRICE-FIXING.  IN THIS CASE, THE RESULT WAS TO PLACE A FLOOR UNDER THE
MARKET - A FLOOR WHICH SERVED THE FUNCTION OF INCREASING THE STABILITY
AND FIRMNESS OF MARKET PRICES.  THAT WAS REPEATEDLY CHARACTERIZED IN
THIS CASE AS STABILIZATION.  BUT IN TERMS OF MARKET OPERATIONS
STABILIZATION IS BUT ONE FORM OF MANIPULATION. AND MARKET MANIPULATION
IN ITS VARIOUS MANIFESTATIONS IS IMPLICITLY AN ARTIFICIAL STIMULUS
APPLIED TO (OR AT TIMES A BRAKE ON) MARKET PRICES, A FORCE WHICH
DISTORTS THOSE PRICES, A FACTOR WHICH PREVENTS THE DETERMINATION OF
THOSE PRICES BY FREE COMPETITION ALONE.  RESPONDENTS, HOWEVER, ARGUE
THAT THERE WAS NO CORRELATION BETWEEN THE AMOUNT OF GASOLINE WHICH THE
MAJOR COMPANIES WERE BUYING AND THE TREND OF PRICES ON THE SPOT
MARKETS.  THEY POINT TO THE FACT THAT SUCH PURCHASING WAS LIGHTEST
DURING THE PERIOD OF THE MARKET RISE IN THE SPRING OF 1935, AND
HEAVIEST IN THE SUMMER AND EARLY FALL OF 1936 WHEN THE PRICES DECLINED;
AND THAT IT DECREASED LATER IN 1936 WHEN THE PRICES ROSE.  BUT THOSE
FACTS DO NOT MILITATE AGAINST THE CONCLUSION THAT THESE BUYING PROGRAMS
WERE A SPECIES OF PRICE-FIXING OR MANIPULATION.  RATHER THEY ARE WHOLLY
CONSISTENT WITH THE MAINTENANCE OF A FLOOR UNDER THE MARKET OR A
STABLIZATION OPERATION OF THIS TYPE, SINCE THE NEED FOR PURCHASES UNDER
SUCH A PROGRAM MIGHT WELL DECREASE AS PRICES ROSE AND INCREASE AS
PRICES DECLINED. 

AS WE HAVE INDICATED, THE MACHINERY EMPLOYED BY A COMBINATION FOR
PRICE-FIXING IS IMMATERIAL. 

UNDER THE SHERMAN ACT A COMBINATION FORMED FOR THE PURPOSE AND WITH
THE EFFECT OF RAISING, DEPRESSING, FIXING, PEGGING, OR STABILIZING THE
PRICE OF A COMMODITY IN INTERSTATE OR FOREIGN COMMERCE IS ILLEGAL PER
SE.  WHERE THE MACHINERY FOR PRICE-FIXING IS AN AGREEMENT ON THE PRICES
TO BE CHARGED OR PAID FOR THE COMMODITY IN THE INTERSTATE OR FOREIGN
CHANNELS OF TRADE, THE POWER TO FIX PRICES EXISTS IF THE COMBINATION
HAS CONTROL OF A SUBSTANTIAL PART OF THE COMMERCE IN THAT COMMODITY. 
WHERE THE MEANS FOR PRICE-FIXING ARE PURCHASES OR SALES OF THE
COMMODITY IN A MARKET OPERATION OR, AS HERE, PURCHASES OF A PART OF THE
SUPPLY OF THE COMMODITY FOR THE PURPOSE OF KEEPING IT FROM HAVING A
DEPRESSIVE EFFECT ON THE MARKETS, SUCH POWER MAY BE FOUND TO EXIST
THOUGH THE COMBINATION DOES NOT CONTROL A SUBSTANTIAL PART OF THE
COMMODITY.  IN SUCH A CASE THAT POWER MAY BE ESTABLISHED IF AS A RESULT
OF MARKET CONDITIONS, THE RESOURCES AVAILABLE TO THE COMBINATIONS,  THE
TIMING AND THE STRATEGIC PLACEMENT OF ORDERS AND THE LIKE, EFFECTIVE
MEANS ARE AT HAND TO ACCOMPLISH THE DESIRED OBJECTIVE.  BUT THERE MAY
BE EFFECTIVE INFLUENCE OVER THE MARKET THOUGH THE GROUP IN QUESTION
DOES NOT CONTROL IT.  PRICE-FIXING AGREEMENTS MAY HAVE UTILITY TO
MEMBERS OF THE GROUP THOUGH THE POWER POSSESSED OR EXERTED FALLS FAR
SHORT OF DOMINATION AND CONTROL.  MONOPOLY POWER (UNITED STATES V.
PATTEN, 226 U.S. 525) IS NOT THE ONLY POWER WHICH THE ACT STRIKES DOWN,
AS WE HAVE SAID.  PROOF THAT A COMBINATION WAS FORMED FOR THE PURPOSE
OF FIXING PRICES AND THAT IT CAUSED THEM TO BE FIXED OR CONTRIBUTED TO
THAT RESULT IS PROOF OF THE COMPLETION OF A PRICE-FIXING CONSPIRACY
UNDER SEC. 1 OF THE ACT.  FN59  THE INDICTMENT IN THIS CASE CHARGED
THAT THIS COMBINATION HAD THAT PURPOSE AND EFFECT.  AND THERE WAS
ABUNDANT EVIDENCE TO SUPPORT IT.  HENCE THE EXISTENCE OF POWER ON THE
PART OF MEMBERS OF THE COMBINATION TO FIX PRICES WAS BUT A CONCLUSION
FROM THE FINDING THAT THE BUYING PROGRAMS CAUSED OR CONTRIBUTED TO THE
RISE AND STABILITY OF PRICES. 

AS TO KNOWLEDGE OR ACQUIESCENCE OF OFFICERS OF THE FEDERAL GOVERNMENT
LITTLE NEED BE SAID.  THE FACT THAT CONGRESS THROUGH UTILIZATION OF THE
PRECISE METHODS HERE EMPLOYED COULD SEEK TO REACH THE SAME OBJECTIVES
SOUGHT BY RESPONDENTS DOES NOT MEAN THAT RESPONDENTS OR ANY OTHER GROUP
MAY DO SO WITHOUT SPECIFIC CONGRESSIONAL AUTHORITY.  ADMITTEDLY NO
APPROVAL OF THE BUYING PROGRAMS WAS OBTAINED UNDER THE NATIONAL
INDUSTRIAL RECOVERY ACT PRIOR TO ITS TERMINATION ON JUNE 16, 1935,
(SEC. 2(C)) WHICH WOULD GIVE IMMUNITY TO RESPONDENTS FROM PROSECUTION
UNDER THE SHERMAN ACT.  THOUGH EMPLOYEES OF THE GOVERNMENT MAY HAVE
KNOWN OF THOSE PROGRAMS AND WINKED AT THEM OR TACITLY APPROVED THEM, NO
IMMUNITY WOULD HAVE THEREBY BEEN OBTAINED.  FOR CONGRESS HAD SPECIFIED
THE PRECISE MANNER AND METHOD OF SECURING IMMUNITY.  NONE OTHER WOULD
SUFFICE.  OTHERWISE NATIONAL POLICY ON SUCH GRAVE AND IMPORTANT ISSUES
AS THIS WOULD BE DETERMINED NOT BY CONGRESS NOR BY THOSE TO WHOM
CONGRESS HAD DELEGATED AUTHORITY BUT BY VIRTUAL VOLUNTEERS.  THE METHOD
ADOPTED BY CONGRESS FOR ALLEVIATING THE PENALTIES OF THE SHERMAN ACT
THROUGH APPROVAL BY DESIGNATED PUBLIC REPRESENTATIVES N60 WOULD BE
SUPPLANTED BY A FOREIGN SYSTEM.  BUT EVEN HAD APPROVAL BEEN OBTAINED
FOR THE BUYING PROGRAMS, THAT APPROVAL WOULD NOT HAVE SURVIVED THE
EXPIRATION IN JUNE 1935 OF THE ACT WHICH WAS THE SOURCE OF THAT
APPROVAL.  AS WE HAVE SEEN, THE BUYING PROGRAM CONTINUED UNABATED
DURING THE BALANCE OF 1935 AND FAR INTO 1936.  AS WE SAID IN UNITED
STATES V. BORDEN CO., 308 U.S. 188, 202, "A CONSPIRACY THUS CONTINUED
IS IN EFFECT RENEWED DURING EACH DAY OF ITS CONTINUANCE."  HENCE,
APPROVAL OR KNOWLEDGE AND ACQUIESCENCE OF FEDERAL AUTHORITIES PRIOR TO
JUNE 1935 COULD HAVE NO RELEVANCY TO RESPONDENTS' ACTIVITIES SUBSEQUENT
THERETO.  THE FACT THAT THE BUYING PROGRAMS MAY HAVE BEEN CONSISTENT
WITH THE GENERAL OBJECTIVES AND ENDS SOUGHT TO BE OBTAINED UNDER THE
NATIONAL INDUSTRIAL RECOVERY ACT IS LIKEWISE IRRELEVANT TO THE LEGALITY
UNDER THE SHERMAN ACT OF RESPONDENTS' ACTIVITIES EITHER PRIOR TO OR
AFTER JUNE 1935.  FOR AS WE HAVE SEEN PRICE-FIXING COMBINATIONS WHICH
LACK CONGRESSIONAL SANCTION ARE ILLEGAL PER SE; THEY ARE NOT EVALUATED
IN TERMS OF THEIR PURPOSE, AIM OR EFFECT IN THE ELIMINATION OF SO
CALLED COMPETITIVE EVILS.  ONLY IN THE EVENT THAT THEY WERE, WOULD SUCH
CONSIDERATIONS HAVE BEEN RELEVANT. 

ACCORDINGLY WE CONCLUDE THAT THE CIRCUIT COURT OF APPEALS ERRED IN
REVERSING THE JUDGMENTS ON THIS GROUND.  A FORTIORI THE POSITION TAKEN
BY RESPONDENTS IN THEIR CROSS PETITION THAT THEY WERE ENTITLED TO
DIRECTED VERDICTS OF ACQUITTAL IS UNTENABLE. 

B. RESPONDENTS' OFFERS OF PROOF. 

WHAT WE HAVE SAID DISPOSES OF MOST OF THE ERRORS ALLEGED IN EXCLUSION
OF EVIDENCE.  THE OFFERS OF PROOF COVERING THE BACKGROUND AND OPERATION
OF THE NATIONAL INDUSTRIAL RECOVERY ACT AND THE PETROLEUM CODE, THE
CONDITION OF THE OIL INDUSTRY, THE ALLEGED ENCOURAGEMENT, COOPERATION
AND ACQUIESCENCE OF THE FEDERAL PETROLEUM ADMINISTRATION IN THE BUYING
PROGRAMS AND THE LIKE WERE PROPERLY EXCLUDED, INSOFAR AS THEY BORE ON
THE NATURE OF THE RESTRAINT AND THE PURPOSE OR END SOUGHT TO BE
ATTAINED.  FOR AS WE HAVE SEEN THE REASONABLENESS OF THE RESTRAINT WAS
NOT PROPERLY AN ISSUE IN THE CASE. 

THERE WERE, HOWEVER, OFFERS OF PROOF ALLEGED TO BE RELEVANT TO THE
CAUSE OF THE PRICE RISE AND THE SUBSEQUENT STABILITY OF THE MARKETS
DURING THE PERIOD IN QUESTION. 

IN ADDITION TO THE FOREGOING OFFERS, RESPONDENTS SOUGHT TO SHOW THAT
THE PRESENCE OF HOT OIL AND HOT GASOLINE HAD GREATLY DEPRESSED THE
MARKET FROM 1932 TO EARLY IN 1935 WHEN THE CONNALLY ACT BECAME
EFFECTIVE, EXCEPT FOR ONE SHORT PERIOD FROM OCTOBER TO DECEMBER 1934;
THAT BEGINNING IN OCTOBER 1934 SHIPMENT OF HOT OIL FROM EAST TEXAS INTO
INTERSTATE COMMERCE HAD FOR THE FIRST TIME BEEN EFFECTIVELY CONTROLLED;
THAT WITHIN A PERIOD OF SIX WEEKS THEREAFTER THE TANK CAR SPOT MARKET
ROSE 1 1/2[ - AN AMOUNT CORRESPONDING TO THE PRICE RISE FROM MARCH TO
JUNE 1935; THAT THE VARIOUS FACTORS WHICH PRIMARILY AFFECT PRICE WERE
ALMOST PRECISELY THE SAME IN THE FALL OF 1934 AS THEY WERE IN THE
SPRING OF 1935; THAT THE PRICE OF GASOLINE HAD BORNE A CONSTANT
RELATIONSHIP TO THE PRICE OF CRUDE OIL FROM JANUARY 1918 TO OCTOBER
1933 - THAT RELATIONSHIP DISAPPEARING WHEN THE PRICE OF HOT OIL FELL
BELOW LEGAL CRUDE BUT REAPPEARING IN OCTOBER 1934, AND AGAIN IN MARCH
1935, WHEN HOT OIL WAS ELIMINATED; THAT GASOLINE PRICES WERE MORE
DEPRESSED THAN THE PRICES OF OTHER COMMODITIES AND THE COST OF LIVING
IN 1933 AND 1934, AND RECOVERED AND ROSE LESS THAN SUCH OTHER PRICES
AND THE COST OF LIVING IN 1935 AND 1936. 

WE THINK THERE WAS NO REVERSIBLE ERROR IN EXCLUSION OF THESE VARIOUS
OFFERS. 

TO THE EXTENT THAT THEY WERE DESIGNED TO SHOW THAT RESPONDENTS BY
THEIR BUYING PROGRAMS HAD NOT RAISED THE SPOT MARKET PRICES TO AN
ARTIFICIAL AND NON-COMPETITIVE LEVEL, THESE OFFERS OF PROOF WERE
PROPERLY DENIED AS IMMATERIAL.  FOR, AS WE HAVE SAID, THE
REASONABLENESS OF THE PRICES AND THE FACT THAT RESPONDENTS' ACTIVITIES
MERELY REMOVED FROM THE MARKET THE DEPRESSIVE EFFECT OF DISTRESS
GASOLINE WERE NOT RELEVANT TO THE ISSUES. 

AND TO THE EXTENT THAT THESE OFFERS OF PROOF WERE AIMED AT
ESTABLISHING AND EVALUATING OTHER CONTRIBUTORY CAUSES FOR THE PRICE
RISE AND MARKET STABILITY DURING THE INDICTMENT PERIOD, THEY WERE NOT
IMPROPERLY DENIED.  IN THE FIRST PLACE, THE RECORD IS REPLETE WITH
EVIDENCE SHOWING THE CONDITION OF THE OIL INDUSTRY AT THE TIME OF THE
ADOPTION OF THE CODE AND DURING THE CODE PERIOD.  THERE WAS AMPLE
TESTIMONY BEARING ON THE OTHER CAUSAL FACTORS WHICH RESPONDENTS CONTEND
WERE PRIMARILY RESPONSIBLE FOR THE PRICE RISE AND MARKET STABILITY
DURING THE INDICTMENT PERIOD.  MUCH OF THE REFUSED TESTIMONY WAS MERELY
CUMULATIVE IN NATURE.  A TRIAL COURT HAS WIDE DISCRETION IN A SITUATION
OF THAT KIND.  THE TRIAL LASTED ABOUT THREE AND A HALF MONTHS. 
TERMINAL POINTS ARE NECESSARY EVEN IN A CONSPIRACY TRIAL INVOLVING
INTRICATE BUSINESS FACTS AND LEGAL ISSUES.  IN THE SECOND PLACE, THE
OFFER TO SHOW THE MARKET CONDITIONS LATE IN 1934 WHEN HOT OIL WAS
TEMPORARILY UNDER CONTROL WAS NOT IMPROPERLY DENIED.  THERE WAS
SUBSTANTIAL EVIDENCE IN THE RECORD TO DEMONSTRATE THE DEPRESSIVE MARKET
EFFECT OF HOT OIL.  WHILE THE OFFER WAS NOT WHOLLY IRRELEVANT TO THE
ISSUES, IT WAS CLEARLY COLLATERAL.  THE TRIAL COURT HAS A WIDE RANGE
FOR DISCRETION IN THE EXCLUSION OF SUCH EVIDENCE.  SEE GOLDEN REWARD
MINING CO. V. BUXTON MINING CO., 97 F. 413, 416-417; CHESTERFIELD MFG.
CO. V. LEOTA COTTON MILLS, 194 F. 358, 359.  ADMISSION OF TESTIMONY
SHOWING THE MARKET CONDITIONS LATE IN 1934 WOULD HAVE OPENED AN INQUIRY
INTO CAUSAL FACTORS AS INVOLVED AND INTERRELATED AS THOSE PRESENT
DURING THE INDICTMENT PERIOD.  THAT MIGHT HAVE CONFUSED RATHER THAN
ENLIGHTENED THE JURY.  IN ANY EVENT IT WOULD NOT HAVE ELIMINATED THE
BUYING PROGRAMS AS CONTRIBUTORY CAUSES TO THE MARKET RISE AND STABILITY
IN 1935 AND 1936.  AND IT WOULD HAVE PROLONGED THE INQUIRY AND
PROTRACTED THE TRIAL.  AS ONCE STATED BY MR. JUSTICE HOLMES, ONE
OBJECTION TO THE INTRODUCTION OF COLLATERAL ISSUES IS A "PURELY
PRACTICAL ONE, A CONCESSION TO THE SHORTNESS OF LIFE."  REEVE V.
DENNETT, 145 MASS. 23, 28; 11 N.E. 938, 944.  AND SEE UNION STOCK YARD
& TRANSIT CO. V. UNITED STATES, 308 U.S. 213, 223-224.  SIMILAR REASONS
SUSTAIN THE ACTION OF THE TRIAL COURT IN LIMITING THE INQUIRY INTO
GENERAL ECONOMIC CONDITIONS ANTEDATING AND DURING THE INDICTMENT
PERIOD.  IN CONCLUSION, WE DO NOT THINK THAT THERE WAS AN ABUSE OF
DISCRETION BY THE TRIAL COURT IN THE EXCLUSION OF THE PROFFERED
EVIDENCE.  A GREAT MASS OF EVIDENCE WAS RECEIVED, THE RANGE OF INQUIRY
WAS WIDE, THE FACTUAL QUESTIONS RELATING TO THE OIL INDUSTRY AND
RESPONDENTS' ACTIVITIES WERE INTRICATE AND INVOLVED.  IN SUCH A CASE A
NEW TRIAL WILL NOT BE ORDERED FOR ALLEGED ERRORS IN EXCLUSION OF
EVIDENCE WHERE MATTERS OF SUBSTANCE ARE NOT AFFECTED.  SEE UNITED
STATES V. TRENTON POTTERIES CO., SUPRA, P. 404. 

VI.  USE OF THE GRAND JURY TRANSCRIPT. 

THE CIRCUIT COURT OF APPEALS HELD THAT THE TRIAL COURT COMMITTED
PREJUDICIAL ERROR IN REFUSING TO PERMIT DEFENSE COUNSEL TO INSPECT THE
TRANSCRIPT OF GRAND JURY TESTIMONY USED TO REFRESH THE RECOLLECTION OF
CERTAIN WITNESSES CALLED BY THE GOVERNMENT.  RESPONDENTS HERE URGE THAT
THE USE MADE OF THE GRAND JURY TRANSCRIPT WAS ERROR BECAUSE (1) THEY
WERE DENIED THE RIGHT TO INSPECT IT, (2) IT HAD NOT BEEN PROPERLY
AUTHENTICATED, (3) THE READING OF THE GRAND JURY TESTIMONY MUST HAVE
LED THE JURY TO CONCLUDE THAT IT WAS AFFIRMATIVE TESTIMONY, AND (4)
SUCH TESTIMONY WAS NOT GIVEN CONTEMPORANEOUSLY WITH THE OCCURRENCES TO
WHICH IT WAS RELATED.  AND IN ALL RESPECTS, RESPONDENTS CONTEND THAT
SUCH USE OF THE GRAND JURY TESTIMONY WAS HIGHLY PREJUDICIAL. 

THERE WERE ABOUT 90 INSTANCES WHEN THE GOVERNMENT USED THAT
TESTIMONY.  IN PRACTICALLY ALL THOSE CASES, THE WITNESSES WERE
EMPLOYEES OR REPRESENTATIVES OF RESPONDENTS OR FORMER DEFENDANTS, OR
WERE CLOSELY ASSOCIATED WITH THEM.  THAT MOST OF THEM WERE HOSTILE
WITNESSES - EVASIVE AND RELUCTANT TO TESTIFY - CLEARLY APPEARS FROM A
READING OF THEIR ENTIRE TESTIMONY.  EACH OF THOSE WITNESSES HAD
TESTIFIED BEFORE THE GRAND JURY WHICH RETURNED THE INDICTMENT IN THE
CASE.  AT TIMES COUNSEL FOR THE GOVERNMENT WOULD STATE TO THE COURT
THAT HE WAS SUPRISED AT THE WITNESS' ANSWER TO A QUESTION AND THAT IT
CONTRADICTED TESTIMONY BEFORE THE GRAND JURY.  MORE FREQUENTLY COUNSEL
WOULD ASK THE WITNESS IF HIS MEMORY COULD BE REFRESHED BY HIS GRAND
JURY TESTIMONY.  DURING THE FIRST PART OF THE TRIAL GOVERNMENT COUNSEL
APPARENTLY READ SOME GRAND JURY TESTIMONY TO TWO WITNESSES FROM HIS
NOTES.  AFTER OBJECTION HAD BEEN MADE, THE COURT INSTRUCTED COUNSEL TO
USE THE TRANSCRIPT.  SOON THEREAFTER, AND EARLY IN THE TRIAL, THE COURT
ADOPTED THE PRACTICE OF INSPECTING THE TRANSCRIPT AND ITSELF SEEKING TO
REFRESH THE WITNESS' RECOLLECTION BY READING FROM HIS PRIOR TESTIMONY. 
AT NO TIME WAS THE TRANSCRIPT SHOWN TO THE WITNESS.  AT ALL TIMES
RESPONDENTS APPROPRIATELY OBJECTED TO THE PRACTICE. 

THROUGHOUT THE TRIAL THE STATED SINGLE REASON FOR THE USE OF SUCH
PRIOR TESTIMONY WAS THE REFRESHMENT OF THE WITNESS' RECOLLECTION. 
COUNSEL FOR THE DEFENSE WERE EVER ALERT TO DENOUNCE THE PRACTICE,
ESPECIALLY WHEN IT APPEARED THAT GOVERNMENT COUNSEL MIGHT SEEK TO
IMPEACH THE WITNESS.  IN SUCH CASES THE COURT NORMALLY WOULD SUSTAIN
THE OBJECTION OR ADMONISH GOVERNMENT COUNSEL; OR THE QUESTION AND
ANSWER WOULD BE STRICKEN.  IN MANY INSTANCES WHERE SUCH TESTIMONY WAS
USED, THE INCIDENT ENDED BY THE WITNESS MERELY SAYING THAT HIS
RECOLLECTION HAD NOT BEEN REFRESHED.  IN CASE IT HAD BEEN, HE WOULD
STATE WHAT HIS PRESENT RECOLLECTION WAS.  ONLY IN ABOUT ONE-SIXTH OF
THE INSTANCES WAS ANY INCONSISTENCY IN TESTIMONY DEVELOPED.  IN THE
BALANCE, RECOLLECTION WAS EITHER NOT REFRESHED OR THE TESTIMONY WHICH
HAD BEEN GIVEN WAS WHOLLY OR SUBSTANTIALLY CONSISTENT WITH THE PREVIOUS
GRAND JURY TESTIMONY.    DURING THE TRIAL THE COURT TOLD THE JURY: 

"I HAVE USED SOME OF THE TESTIMONY AND READ SOME OF IT FOR THE
PURPOSE ONLY OF REFRESHING THE WITNESSES' MEMORIES, AND MANY TIMES I
HAVE INDICATED THAT THERE WAS NO CONFLICT OR NOTHING INCONSISTENT
BETWEEN THE TESTIMONY OF THE WITNESS AND THE TRANSCRIPT OF TESTIMONY. 
THE ONLY REASON WE USE THIS TRANSCRIPT OF TESTIMONY OF EACH WITNESS
BEFORE THE GRAND JURY IS TO, IF WE CAN, REFRESH THEIR MEMORIES SO AS TO
ENABLE THEM TO RECALL CORRECTLY WHAT THE FACT IS." 

AND THE COURT MADE A SIMILAR STATEMENT IN ITS CHARGE TO THE JURY. 

AS IN CASE OF LEADING QUESTIONS, ST. CLAIR V. UNITED STATES, 154 U.S.
134, 150, SUCH USE OF GRAND JURY TESTIMONY FOR THE PURPOSE OF
REFRESHING THE RECOLLECTION OF A WITNESS RESTS IN THE SOUND DISCRETION
OF THE TRIAL JUDGE.  SEE DI CARLO V. UNITED STATES, 6 F.2D 364, 367
368; BOSSELMAN V. UNITED STATES, 239 F. 82, 85; FELDER V. UNITED
STATES, 9 F.2D 872.  HE SEES THE WITNESS, CAN APPRAISE HIS HOSTILITY,
RECALCITRANCE, AND EVASIVENESS OR HIS NEED FOR SOME REFRESHING
MATERIAL, AND CAN DETERMINE WHETHER OR NOT UNDER ALL THE CIRCUMSTANCES
THE USE OF GRAND JURY MINUTES IS NECESSARY OR APPROPRIATE FOR
REFRESHING HIS RECOLLECTION.  AS ONCE STATED BY JUDGE HOUGH, "THE BALD
FACT THAT THE MEMORY REFRESHING WORDS ARE FOUND IN THE RECORDS OF A
GRAND JURY IS NOT A VALID OBJECTION."  FELDER V. UNITED STATES, SUPRA,
P. 874.  NORMALLY, OF COURSE, THE MATERIAL SO USED MUST BE SHOWN TO
OPPOSING COUNSEL UPON DEMAND, IF IT IS HANDED TO THE WITNESS.  MORRIS
V. UNITED STATES, 149 F. 123, 126; LENNON V. UNITED STATES, 20 F.2D
490, 493-494; WIGMORE, EVIDENCE (2D ED.), SEC. 762.  AND THE REASONS
ARE THAT ONLY IN THAT WAY CAN OPPOSING COUNSEL AVOID THE RISKS OF
IMPOSITION ON AND IMPROPER COMMUNICATION WITH THE WITNESS, AND "DETECT
CIRCUMSTANCES NOT APPEARING ON THE SURFACE" AND "EXPOSE ALL THAT
DETRACTS FROM THE WEIGHT OF TESTIMONY."  SEE 2 WIGMORE, SUPRA, P. 42. 
THE FIRST OF THESE REASONS HAS NO RELEVANCY HERE.  AND AS TO THE
SECOND, NO IRON-CLAD RULE REQUIRES THAT OPPOSING COUNSEL BE SHOWN THE
GRAND JURY TRANSCRIPT WHERE IT IS NOT SHOWN THE WITNESS AND WHERE SOME
APPROPRIATE PROCEDURE IS ADOPTED TO PREVENT ITS IMPROPER USE.  THAT
AGAIN IS A MATTER WHICH RESTS IN THE SOUND DISCRETION OF THE COURT. 
GRAND JURY TESTIMONY IS ORDINARILY CONFIDENTIAL.  SEE WIGMORE, SUPRA,
SEC. 2362.  BUT AFTER THE GRAND JURY'S FUNCTIONS ARE ENDED, DISCLOSURE
IS WHOLLY PROPER WHERE THE ENDS OF JUSTICE REQUIRE IT.  SEE METZLER V.
UNITED STATES, 64 F.2D 203, 206.  SINCE THERE IS NO INEXORABLE RULE
WHICH UNDER ALL CIRCUMSTANCES ENTITLES THE WITNESS AND HIS COUNSEL TO
SEE THE PRIOR STATEMENT MADE UNDER OATH AND SINCE IN THIS CASE THE
COURT ITSELF EXAMINED AND THUS DIRECTLY CONTROLLED THE USE OF THE GRAND
JURY TESTIMONY, WE CANNOT SAY THAT THE REFUSAL TO MAKE IT AVAILABLE TO
COUNSEL FOR THE DEFENSE IS PER SE REVERSIBLE ERROR.  TO HOLD THAT IT
WAS ERROR IN THE INSTANCES HERE UNDER REVIEW WOULD BE TO FIND ABUSE OF
DISCRETION, WHERE IN FACT WE CONCLUDE FROM THE ENTIRE RECORD ON THIS
PHASE OF THE CASE THAT THE JUDGE SUPERVISED THE PROCEDURE WITH
COMMENDABLE FAIRNESS.  IN SUM, THE SELECTIVE USE OF THIS TESTIMONY AND
THE PRECAUTIONS TAKEN BY THE TRIAL JUDGE MAKE IT IMPOSSIBLE FOR US TO
SAY THAT HE TRANSCENDED THE LIMITS OF SOUND DISCRETION IN PERMITTING IT
TO BE USED BY THE GOVERNMENT WITHOUT MAKING IT AVAILABLE TO THE
DEFENSE. 

IF THE RECORD SHOWED THAT THE REFRESHING MATERIAL WAS DELIBERATELY
USED FOR PURPOSES NOT MATERIAL TO THE ISSUES BUT TO AROUSE THE PASSIONS
OF THE JURORS, SO THAT AN OBJECTIVE APPRAISAL OF THE EVIDENCE WAS
UNLIKELY, THERE WOULD BE REVERSIBLE ERROR.  LIKEWISE THERE WOULD BE
ERROR WHERE UNDER THE PRETEXT OF REFRESHING A WITNESS' RECOLLECTION,
THE PRIOR TESTIMONY WAS INTRODUCED AS EVIDENCE.  ROSENTHAL V. UNITED
STATES, 248 F. 684, 686.  BUT HERE THE GRAND JURY TESTIMONY WAS USED
SIMPLY TO REFRESH THE RECOLLECTION ON MATERIAL FACTS, NEW YORK &
COLORADO MINING SYNDICATE & CO. V. FRASER, 130 U.S. 611, NOT AS
INDEPENDENT AFFIRMATIVE EVIDENCE.  BATES V. PREBLE, 151 U.S. 149. 
FURTHERMORE, IT WAS NOT USED FOR IMPEACHMENT PURPOSES; AND THE CONTENT
OF THIS REFRESHING MATERIAL RELATED SOLELY TO CONVERSATIONS AND EVENTS
RELEVANT TO THE FORMATION AND EXECUTION OF THE BUYING PROGRAMS.  IN
ADDITION, IT CLEARLY APPEARS THAT THE USE OF THIS MATERIAL WAS NOT
PREJUDICIAL.  SO FAR AS THE SUBJECT MATTER OF THE INQUIRY IS CONCERNED,
THAT PRIOR TESTIMONY WAS EITHER CUMULATIVE OR DEALT ONLY WITH THE
MINUTIAE OF THE CONSPIRACY.  THE RECORD MINUS THAT TESTIMONY CLEARLY
ESTABLISHES ALL THE FACTS NECESSARY FOR PROOF OF THE ILLEGAL
CONSPIRACY.  NO PORTION OF IT WAS DEPENDENT ON THE MINOR FACTS
CONCERNING WHICH THE MEMORY OF THESE WITNESSES WAS REFRESHED.  FN61
HENCE, THE SITUATION IS VASTLY DIFFERENT FROM THOSE CASES WHERE
ESSENTIAL INGREDIENTS OF THE CRIME WERE DEPENDENT ON TESTIMONY ELICITED
IN THAT MANNER OR WHERE THE EVIDENCE OF GUILT HUNG IN DELICATE BALANCE
IF THAT TESTIMONY WAS DELETED.  SEE LITTLE V. UNITED STATES, 93 F.2D
401; PUTNAM V. UNITED STATES, 162 U.S. 687.  HENCE ASSUMING, ARGUENDO,
THAT THERE WAS ERROR IN THE USE OF THE PRIOR TESTIMONY, TO ORDER A NEW
TRIAL WOULD BE TO VIOLATE THE STANDARDS OF SEC. 269 OF THE JUDICIAL
CODE (28 U.S.C. SEC. 391), SINCE THE "SUBSTANTIAL RIGHTS" OF
RESPONDENTS WERE NOT AFFECTED.  THERE ARE NO VESTED INDIVIDUAL RIGHTS
IN THE ORDINARY RULES OF EVIDENCE; THEIR OBSERVANCE SHOULD NOT BE
REDUCED TO AN IDLE CEREMONY. 

PUTNAM V. UNITED STATES, SUPRA, HELD IT WAS PREJUDICIAL ERROR TO USE
GRAND JURY MINUTES TO REFRESH THE MEMORY OF A WITNESS UNLESS THAT
TESTIMONY WAS CONTEMPORANEOUS WITH THE OCCURRENCES AS TO WHICH THE
WITNESS WAS TESTIFYING.  THERE THE TESTIMONY BEFORE THE GRAND JURY WAS
MORE THAN FOUR MONTHS AFTER THE OCCURRENCE.  THIS COURT HELD THAT
BECAUSE OF THAT LAPSE OF TIME THE TESTIMONY WAS NOT CONTEMPORANEOUS. 
WHATEVER MAY BE SAID OF THE PUTNAM CASE ON THE MERITS (SEE WIGMORE,
SUPRA, SEC. 761) IT DOES NOT ESTABLISH AN INFLEXIBLE FOUR-MONTHS'
PERIOD OF LIMITATION.  THERE THE EVENT WAS A SINGLE ISOLATED
CONVERSATION, MOST DAMAGING TO THE DEFENDANT.  HERE THERE WAS A
CONTINUING CONSPIRACY EXTENDING AT LEAST UP TO THE PERIOD WHEN THE
WITNESSES WERE TESTIFYING BEFORE THE GRAND JURY.  MUCH OF THE TESTIMONY
RELATED TO EVENTS A YEAR OR MORE OLD.  BUT IN THE MAIN THOSE MATTERS
WERE WOVEN INTO THE CONSPIRACY, RELATED TO EVENTS IN WHICH THE WITNESS
ACTIVELY PARTICIPATED, CONCERNED THE REGULAR BUSINESS MATTERS WITH
WHICH HE WAS FAMILIAR, PERTAINED TO HIS REGULAR EMPLOYMENT, OR
CONSTITUTED ADMISSIONS AGAINST INTEREST.  ON THESE FACTS WE DO NOT
THINK THERE WAS AN ABUSE OF DISCRETION ON THE PART OF THE TRIAL JUDGE
IN PERMITTING THE TESTIMONY TO BE USED.  MEASURED BY THE TEST OF
WHETHER OR NOT THE PRIOR STATEMENT MADE UNDER OATH WAS REASONABLY
CALCULATED TO REVIVE THE WITNESS' PRESENT RECOLLECTION WITHIN THE RULE
OF THE PUTNAM CASE, THERE CERTAINLY CANNOT BE SAID TO HAVE BEEN ERROR
AS A MATTER OF LAW. 

RESPONDENTS SAY THAT THE MANNER EMPLOYED IN REFRESHING THE
RECOLLECTION OF THE WITNESSES WAS BOUND TO INCULCATE IN THE MINDS OF
THE JURORS THE FEELING THAT THE WITNESSES WERE TESTIFYING FALSELY OR
WERE CONCEALING THE TRUTH.  BUT HERE AGAIN, WE FIND NO REVERSIBLE
ERROR.  THE TRIAL JUDGE, AS WE HAVE SAID, WAS ALERT TO STOP
IMPEACHMENT.  AND IN VIEW OF THE OBVIOUS HOSTILITY AND EVASIVENESS OF
MOST OF THOSE WITNESSES, WE CANNOT SAY THAT THE JUDGE TRANSCENDED THE
BOUNDS OF DISCRETION IN PERMITTING THEIR MEMORIES TO BE REFRESHED IN
THIS MANNER.  "AS IS TRUE OF MOST THAT TAKES PLACE IN A TRIAL, THE
RIGHT RESULT IS A MATTER OF DEGREE, AND DEPENDS UPON THE SENSE OF
MEASURE OF THE JUDGE."  SEE UNITED STATES V. FREUNDLICH, 95 F.2D 376,
379. 

VII.  ARGUMENTS TO THE JURY BY GOVERNMENT COUNSEL. 

RESPONDENTS COMPLAIN OF CERTAIN STATEMENTS MADE TO THE JURY BY
GOVERNMENT COUNSEL.  THEIR OBJECTIONS ARE THAT GOVERNMENT COUNSEL (1)
APPEALED TO CLASS PREJUDICE; AND (2) REQUESTED A CONVICTION REGARDLESS
OF THE EVIDENCE BECAUSE THE PROSECUTION WAS CONVINCED OF RESPONDENTS'
GUILT AND BECAUSE A CONVICTION "WAS THE WISH AND THE DESIRE OF THE
HIGHEST OFFICIALS IN THE GOVERNMENT OF THE UNITED STATES." 

UNDER THE FIRST OF THESE, THEY POINT TO THE OPENING STATEMENT THAT
THIS CONSPIRACY INVOLVED SOME OF THE "BIGGEST MEN" IN THE COUNTRY - BIG
IN THE SENSE OF "CONTROLLING VAST VOLUMES OF FINANCIAL INFLUENCE"; AND
THAT IT IS A "TERRIBLE THING THAT A GROUP OF INFLUENTIAL, WEALTHY
MILLIONAIRES OR BILLIONAIRES SHOULD TAKE OVER THE POWER, TAKE OVER THE
CONTROL, THE POWER TO MAKE PRICES."  AT THE CLOSE OF THOSE OPENING
REMARKS AND ON OBJECTION OF DEFENSE COUNSEL THE COURT COUNSELLED THE
JURY THAT "ANY REFERENCE TO THE WEALTH OF ANY OF THE DEFENDANTS IS
ENTIRELY IMMATERIAL.  A MAN OF WEALTH HAS JUST AS MUCH STANDING IN A
COURT AS A MAN THAT IS POVERTY STRICKEN." 

BUT RESPONDENTS COMPLAIN THAT IN THE CLOSING ARGUMENTS THE SAME
MATTER WAS REFERRED TO AGAIN AS FOLLOWS:  "A HUNDRED LAWYERS EMPLOYED -
THE VERY CREAM OF THE AMERICAN BAR, THE VERY BEST LEGAL TALENT THAT
THESE PEOPLE CAN OBTAIN - EVERY ONE OF THEM WORKING NIGHT AND DAY WITH
SUGGESTIONS AS TO HOW THE RED HERRING CAN BE DRAWN ACROSS THE CLEAR CUT
ISSUE IN THIS CASE"; THAT IT SHOULD NOT BE TAKEN FOR GRANTED "THAT
THESE MORE POWERFUL PEOPLE ARE ABOVE THE LAW AND CAN'T BE REACHED AND
CAN'T BE BROUGHT TO BOOK"; THAT THE "FEAR OF CORPORATE POWER IN
COMBINATION" IS PART OF THE AMERICAN TRADITION AS ILLUSTRATED BY A
SPEECH MADE IN 1873 BY A WISCONSIN JUDGE, WHO SAID:  "THERE IS LOOMING
UP A NEW AND DARK POWER  ...  THE ACCUMULATION OF INDIVIDUAL WEALTH
SEEMS TO BE GREATER THAN IT EVER HAS BEEN SINCE THE DOWNFALL OF THE
ROMAN EMPIRE.  THE ENTERPRISES OF THE COUNTRY ARE ...  COLDLY MARCHING,
NOT FOR ECONOMIC CONQUESTS ONLY, BUT FOR POLITICAL POWER  ...  MONEY IS
TAKING THE FIELD AS AN ORGANIZED POWER.  THE QUESTION WILL ARISE  ...
WHICH SHALL RULE, WEALTH OR MAN?  WHICH SHALL LEAD, MONEY OR
INTELLECT?  WHO SHALL FILL THE PUBLIC STATIONS, EDUCATED AND PATRIOTIC
FREE MEN, OR THE FUTILE SERFS OF CORPORATE CAPITAL?"  BUT AS TO THESE
STATEMENTS NO OBJECTION WAS MADE AT THE TIME BY DEFENSE COUNSEL. 

THERE WERE OTHER SUCH REFERENCES E.G., "MALEFACTORS OF GREAT WEALTH,"
"EAGER, GRASPING MEN" OR CORPORATIONS WHO "TAKE THE LAW INTO THEIR OWN
HANDS  ...  WITHOUT ANY CONSIDERATION FOR THE UNDER-DOG OR THE POOR MAN
...  WE ARE GOING TO STOP IT, AS OUR FOREFATHERS STOPPED IT BEFORE US
AND LEFT THIS COUNTRY WITH US AS IT IS NOW, OR WE ARE GOING DOWN INTO
RUIN AS DID THE ROMAN EMPIRE."  COUNSEL FOR THE DEFENSE OBJECTED TO
THESE STATEMENTS AS IMPROPER AND PREJUDICIAL.  THE COURT OVERRULED THE
OBJECTIONS STATING IT WOULD DEAL WITH THE MATTER IN ITS CHARGE TO THE
JURY.  IN ITS CHARGE THE COURT WARNED AGAINST CONVICTING A CORPORATION
"SOLELY BECAUSE OF ITS SIZE OR THE EXTENT OF ITS BUSINESS"; THAT IT WAS
"YOUR DUTY TO GIVE THESE CORPORATIONS THE SAME IMPARTIAL CONSIDERATION"
AS AN INDIVIDUAL OR SMALL CORPORATION WOULD RECEIVE; AND INSTRUCTED THE
JURORS NOT TO BE CONCERNED "WITH THE FINANCIAL CONDITION OF ANY OF
THESE DEFENDANTS.  WHETHER A MAN BE RICH OR POOR, HE IS ENTITLED TO THE
SAME CONSIDERATION IN THIS COURT." 

ON THIS PHASE OF THE MATTER SEVERAL OBSERVATIONS ARE PERTINENT.  IN
THE FIRST PLACE, COUNSEL FOR THE DEFENSE CANNOT AS A RULE REMAIN
SILENT, INTERPOSE NO OBJECTIONS, AND AFTER A VERDICT HAS BEEN RETURNED
SEIZE FOR THE FIRST TIME ON THE POINT THAT THE COMMENTS TO THE JURY
WERE IMPROPER AND PREJUDICIAL.  SEE CRUMPTON V. UNITED STATES, 138 U.S.
361, 364.  OF COURSE APPELLATE COURTS "IN THE PUBLIC INTEREST, MAY, OF
THEIR OWN MOTION, NOTICE ERRORS TO WHICH NO EXCEPTION HAS BEEN TAKEN,
IF THE ERRORS ARE OBVIOUS, OR IF THEY OTHERWISE SERIOUSLY AFFECT THE
FAIRNESS, INTEGRITY OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS."  SEE
UNITED STATES V. ATKINSON, 297 U.S. 157, 160.  BUT AS WE POINT OUT
HEREAFTER, THE EXCEPTIONAL CIRCUMSTANCES WHICH CALL FOR AN INVOCATION
OF THAT RULE ARE NOT PRESENT HERE.  IN THE SECOND PLACE, IT IS NOT
IMPROPER IN A SHERMAN ACT CASE TO DISCUSS CORPORATE POWER, ITS USE AND
ABUSE, SO LONG AS THOSE STATEMENTS ARE RELEVANT TO THE ISSUES AT HAND. 
FOR THAT SUBJECT IS MATERIAL TO THE PHILOSOPHY OF THAT ACT.  ITS
PURPOSES AND OBJECTIVES ARE CLEARLY LEGITIMATE SUBJECTS FOR DISCUSSION
BEFORE THE JURY.  BUT, THIRDLY, APPEALS TO CLASS PREJUDICE ARE HIGHLY
IMPROPER AND CANNOT BE CONDONED AND TRIAL COURTS SHOULD EVER BE ALERT
TO PREVENT THEM.  SOME OF THE STATEMENTS TO WHICH RESPONDENTS NOW
OBJECT FALL IN THIS CLASS.  THEY WERE, WE THINK, UNDIGNIFIED AND
INTEMPERATE.  THEY DO NOT COMPORT WITH THE STANDARDS OF PROPRIETY TO BE
EXPECTED OF THE PROSECUTOR.  BUT IT IS QUITE ANOTHER THING TO SAY THAT
THESE STATEMENTS CONSTITUTED PREJUDICIAL ERROR.  IN THE FIRST PLACE, IT
IS HARD FOR US TO IMAGINE THAT THE MINDS OF THE JURORS WOULD BE SO
INFLUENCED BY SUCH INCIDENTAL STATEMENTS DURING THIS LONG TRIAL THAT
THEY WOULD NOT APPRAISE THE EVIDENCE OBJECTIVELY AND DISPASSIONATELY. 
IN THE SECOND PLACE, THIS WAS NOT A WEAK CASE AS WAS BERGER V. UNITED
STATES, 295 U.S. 78, WHERE THIS COURT HELD THAT PREJUDICE TO THE
ACCUSED WAS SO HIGHLY PROBABLE AS A RESULT OF THE PROSECUTOR'S IMPROPER
CONDUCT "THAT WE ARE NOT JUSTIFIED IN ASSUMING ITS NON-EXISTENCE."  (P.
89.)  CF. NEW YORK CENTRAL R. CO. V. JOHNSON, 279 U.S. 310.  OF COURSE,
APPEALS TO PASSION AND PREJUDICE MAY SO POISON THE MINDS OF JURORS EVEN
IN A STRONG CASE THAT AN ACCUSED MAY BE DEPRIVED OF A FAIR TRIAL.  BUT
EACH CASE NECESSARILY TURNS ON ITS OWN FACTS.  AND WHERE, AS HERE, THE
RECORD CONVINCES US THAT THESE STATEMENTS WERE MINOR ABERRATIONS IN A
PROLONGED TRIAL AND NOT CUMULATIVE EVIDENCE OF A PROCEEDING DOMINATED
BY PASSION AND PREJUDICE, REVERSAL WOULD NOT PROMOTE THE ENDS OF
JUSTICE.    UNDER THE SECOND OF THESE OBJECTIONS, RESPONDENTS COMPLAIN
OF THE PLEA TO THE JURY NOT TO "LET YOUR GOVERNMENT AND THE UNITED
STATES AND ITS CITIZENS AND SOCIETY DOWN," AND THAT GOVERNMENT COUNSEL
"BELIEVE TO THE BOTTOM OF THEIR HEARTS IN THE JUSTICE OF THE CAUSE THAT
THEY ESPOUSE HERE."  NO OBJECTION AT THAT TIME WAS MADE BY DEFENSE
COUNSEL.  BUT THEY DID OBJECT AT THE TRIAL TO THE STATEMENTS BY
GOVERNMENT COUNSEL, "  ...  DO YOU HONESTLY THINK THAT THESE BOYS HERE
(GOVERNMENT COUNSEL)  ...  WOULD BE TRYING TO CONVICT THESE MEN UNLESS
THAT WAS THE WISH AND THE DESIRE OF THE HIGHEST OFFICIALS IN THE
GOVERNMENT OF THE UNITED STATES?"; "YOU DON'T THINK THE GOVERNMENT OF
THE UNITED STATES WOULD ALLOW FOUR OR FIVE LAWYERS TO COME OUT HERE AND
PROSECUTE THIS CASE AGAINST THEM, AGAINST THEIR WISHES, OR THAT THE
SECRETARY OF THE DEPARTMENT OF THE INTERIOR WOULD ALLOW US TO DO IT, IF
HE DIDN'T WANT IT DONE?"  THE COURT OVERRULED THE OBJECTIONS STATING,
"I SUPPOSE WE HAVE A RIGHT TO ASSUME THAT THEY ARE HERE UNDER THE
INSTRUCTIONS OF THE ATTORNEY GENERAL OF THE UNITED STATES." 
RESPONDENTS FURTHER COMPLAIN OF THE STATEMENTS THAT THE EVIDENCE IS "SO
OVERWHELMING AND OVERPOWERING THAT IT DOESN'T EVEN LEAVE THE TRACE OR
THE SHADOW OF A DOUBT"; THAT IF "YOU ARE GOING TO SAY THEY ARE NOT
GUILTY ON THIS EVIDENCE, THEN YOU TAKE THE RESPONSIBILITY, I WON'T; YOU
GET AN ALIBI, I WON'T"; THAT THE HUNDREDS OF THOUSANDS OF DOLLARS SPENT
BY THE GOVERNMENT "IN TRYING TO GET BEFORE YOU THE FACTS" SHOULD NOT BE
"THROWN TO THE WINDS" NOR SHOULD THESE MEN "GO CLEAR."  BUT NO
OBJECTION WAS MADE AT THE TIME BY DEFENSE COUNSEL. 

AS RESPECTS THE STATEMENT THAT IT WAS THE "WISH AND THE DESIRE OF THE
HIGHEST OFFICIALS" IN THE GOVERNMENT TO HAVE DEFENDANTS CONVICTED, SOME
BACKGROUND SHOULD BE GIVEN.  THIS CAME NEAR THE END OF THE CLOSING
ARGUMENTS.  IN THE OPENING STATEMENT, DURING THE TRIAL, AND IN THE
CLOSING ARGUMENTS THE DEFENSE CONTINUOUSLY EMPHASIZED THE KNOWLEDGE AND
ACQUIESCENCE BY GOVERNMENT OFFICIALS OF THE BUYING PROGRAMS.  AS WE
HAVE NOTED, THAT WAS ONE OF THE MAIN LINES OF DEFENSE.  FROM THE
BEGINNING OF THE TRIAL TO THE END, THE DEFENSE SOUGHT TO PROVE, NOT
OFFICIAL APPROVAL IN THE LEGAL SENSE, BUT OFFICIAL ACQUIESCENCE OR AT
LEAST CONDONATION.  BALD STATEMENTS WERE MADE THAT RESPONDENTS "WERE
CONDUCTING A PROGRAM WHICH RESULTED FROM THE INSTIGATION AND INDUCEMENT
OF THE GOVERNMENT ITSELF"; AFTER THE SCHECHTER CASE THEY ENDEAVORED TO
"STABILIZE MARKETING PRACTICES" AT THE "INSTANCE OF OFFICIALS OF THE
OIL ADMINISTRATION"; "WHAT WAS DONE BY THESE DEFENDANTS WAS DONE FOR
THE PURPOSE OF ACCOMPLISHING THE OBJECTIVES AND PURPOSES OF THE
NATIONAL INDUSTRIAL RECOVERY ACT, AND WAS UNDERTAKEN AT THE REQUEST AND
PURSUANT TO THE AUTHORIZATION OF THE SECRETARY OF THE INTERIOR, MR.
ICKES, THE ADMINISTRATOR OF THE PETROLEUM CODE"; RESPONDENTS "ACTED TO
CARRY OUT THE PURPOSES AND OBJECTIVES SOUGHT BY THE GOVERNMENT AND
INITIATED BY THE GOVERNMENT  ...  THEY WERE OBJECTIVES DEFINED BY THE
PRESIDENT OF THE UNITED STATES.  THEY WERE PURPOSES, THE ACCOMPLISHMENT
OF WHICH THE SECRETARY OF THE INTERIOR HAD BEEN CHARGED, UNDER HIS
OATH, TO SEEK TO OBTAIN"; "WITH ALL THIS BACKING AND ALL THIS HELP FROM
THE GOVERNMENT, AND ALL THIS URGING FROM THE GOVERNMENT, ARE YOU GOING
TO BRAND THESE MEN AS JUST SELFISH INDIVIDUALS?"  ON INNUMERABLE
INSTANCES THE IMPRESSION WAS SOUGHT TO BE CONVEYED BY SUBTLE
INTIMATION, INFERENCE OR SUGGESTION THAT RESPONSIBILITY FOR THESE
BUYING PROGRAMS SHOULD BE PLACED ON THE SHOULDERS OF HIGH GOVERNMENT
OFFICIALS.  GOVERNMENT COUNSEL ACCORDINGLY JUSTIFIED HIS STATEMENT ON
THE GROUNDS THAT IT DENIED WHAT THE DEFENSE HAD CONTINUOUSLY STATED,
VIZ., THAT THE BUYING PROGRAMS WERE CONDUCTED WITH THE CONSENT AND
APPROVAL OF THE SECRETARY OF THE INTERIOR.  AT A SUBSEQUENT POINT IN
THE CLOSING ARGUMENTS GOVERNMENT COUNSEL AGAIN REFERRED TO THE MATTER. 
ON OBJECTION OF DEFENSE COUNSEL HE WITHDREW THE STATEMENT.  AND THE
COURT INSTRUCTED THE JURY TO DISREGARD IT, SAYING "THIS PROSECUTION WAS
COMMENCED AT THE INSTIGATION OF THE ATTORNEY GENERAL OF THE UNITED
STATES." 

IN VIEW OF THESE VARIOUS CIRCUMSTANCES WE DO NOT THINK THAT THE ABOVE
STATEMENTS WERE PREJUDICIAL.  STANDING BY THEMSELVES THEY APPEAR TO BE
HIGHLY IMPROPER.  EVEN AS A REBUTTAL TO THE DEFENSE WHICH HAD BEEN
INTERPOSED THROUGHOUT THE TRIAL, THEY OVERSTEP THE BOUNDS.  BUT IN VIEW
OF THE JUSTIFICATION WHICH RESPONDENTS SOUGHT TO ESTABLISH FOR THEIR
ACTS, THE SUBJECT MATTER OF THESE STATEMENTS WAS CERTAINLY RELEVANT. 
THE FACT THAT GOVERNMENT COUNSEL TRANSGRESSED IN HIS REBUTTAL CERTAINLY
CANNOT BE SAID TO CONSTITUTE PREJUDICIAL ERROR.  FOR A READING OF THE
ENTIRE ARGUMENT BEFORE THE JURY LEADS TO THE FIRM CONVICTION THAT THE
COMMENTS WHICH RESPONDENTS NOW RELY ON FOR THEIR ASSERTIONS OF ERROR
WERE ISOLATED, CASUAL EPISODES IN A LONG SUMMATION OF OVER 200 PRINTED
PAGES AND NOT AT ALL REFLECTIVE OF THE QUALITY OF THE ARGUMENT AS A
WHOLE. 

RESPONDENTS FURTHER URGE AS PREJUDICIAL ERROR THE ASSERTIONS BY
GOVERNMENT COUNSEL OF PERSONAL KNOWLEDGE IN CONTRADICTION OF THE RECORD
FOR THE PURPOSE OF DISCREDITING AN IMPORTANT DEFENSE WITNESS.  THE
STATEMENT OF GOVERNMENT COUNSEL WAS THAT IN "1935 AND 1936, YOU
COULDN'T GET A ROWBOAT UP THE MISSISSIPPI RIVER, NORTH OF WINONA." 
RESPONDENTS CONTEND THAT TESTIMONY AS TO NAVIGABILITY OF THAT RIVER WAS
VITALLY MATERIAL AS ESTABLISHING SUCH OUTSIDE COMPETITION AS WOULD HAVE
PREVENTED THEM FROM RAISING PRICES TO ARTIFICIAL AND NON-COMPETITIVE
LEVELS.  BUT SUCH TESTIMONY WAS WHOLLY IRRELEVANT, SINCE THE
REASONABLENESS OF THE PRICES WAS NOT PROPERLY AN ISSUE IN THE CASE. 
FURTHERMORE, WHEN OBJECTION WAS MADE TO THE REMARK, COUNSEL WITHDREW IT
AND THE JURY WAS INSTRUCTED TO DISREGARD IT.  THAT MUST BE DEEMED TO
HAVE CURED THE ERROR IF IT COULD BE CONSIDERED SUCH.  AS STATED IN
DUNLOP V. UNITED STATES, 165 U.S. 486, 498, "IF EVERY REMARK MADE BY
COUNSEL OUTSIDE OF THE TESTIMONY WERE GROUND FOR A REVERSAL,
COMPARATIVELY FEW VERDICTS WOULD STAND." 

VIII.  GRANTING OF NEW TRIALS TO SOME DEFENDANTS. 

RESPONDENTS CONTEND THAT THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN GRANTING NEW TRIALS TO SOME DEFENDANTS AND DENYING THEM TO
RESPONDENTS. 

THE COURT CHARGED THE JURY THAT IT COULD CONVICT ANY OF THE
DEFENDANTS FOUND TO HAVE BEEN MEMBERS OF THE COMBINATION AND THAT IT
NEED NOT CONVICT ALL OR NONE.  AS HAS BEEN NOTED, THE JURY FOUND
SIXTEEN CORPORATIONS AND THIRTY INDIVIDUALS GUILTY.  THEREAFTER THE
COURT DISCHARGED ONE CORPORATION AND TEN INDIVIDUALS, AND GRANTED NEW
TRIALS TO THREE CORPORATIONS AND FIFTEEN INDIVIDUALS.  SUCH ACTION LEFT
THE VERDICT STANDING AS TO ONLY TWELVE CORPORATIONS AND FIVE
INDIVIDUALS.  THE TRIAL COURT GAVE AS ITS REASON FOR GRANTING SOME OF
THE DEFENDANTS A NEW TRIAL ITS BELIEF THAT THEY HAD NOT HAD "AN
ADEQUATE SEPARATE CONSIDERATION OF THEIR DEFENSE, IN VIEW OF THE FACT
THAT AS TO SOME OF THEM DIRECT EVIDENCE OF PARTICIPATION WAS LACKING OR
SLIGHT, AND THE CIRCUMSTANTIAL EVIDENCE VIEWED AS A WHOLE MAY WELL HAVE
OBSCURED OTHER FACTS AND CIRCUMSTANCES SHOWN, IN SOME CASES, TO BE
HIGHLY SUGGESTIVE OF INNOCENCE, AND IN ALL CASES ENTITLED TO BE
CONSIDERED AND WEIGHED."  UNITED STATES V. STANDARD OIL CO., (INDIANA),
23 F.SUPP.  937, 939.  IN DENYING THE MOTIONS OF RESPONDENTS FOR A NEW
TRIAL IT STATED (P. 944) THAT THERE WAS "EVIDENCE TO GO TO THE JURY AND
TO SUSTAIN ITS VERDICT AS TO EVERY ESSENTIAL CHARGE IN THE INDICTMENT"
AS TO THEM.  FN62 

RESPONDENTS' ARGUMENT RUNS AS FOLLOWS:  THE COURT CHARGED THE JURY
THAT IT WAS THE PURPOSE AND THE POWER OF THE COMBINATION TO RAISE
PRICES WHICH WERE MATERIAL.  HENCE THE FACT THAT THE JURY FOUND THAT
THE ENTIRE GROUP POSSESSED SUCH POWER DOES NOT NECESSARILY MEAN THAT
THE JURY WOULD HAVE FOUND THAT RESPONDENTS ACTING ALONE POSSESSED SUCH
POWER.  SINCE THE JURY DID NOT CONSIDER THAT ISSUE, IT IS ARGUED THAT
DENIAL OF A NEW TRIAL TO RESPONDENTS VIOLATES THEIR CONSTITUTIONAL
RIGHT TO A JURY TRIAL.  AND IN SUPPORT OF THEIR CONTENTION, RESPONDENTS
INSIST THAT STANDARD OF INDIANA ALONE (ONE OF THE DEFENDANTS GRANTED A
NEW TRIAL) POSSESSED SUCH POWER AS WOULD MAKE IT IMPOSSIBLE FOR THEM TO
RAISE PRICES WITHOUT ITS AGREEMENT AND COOPERATION. 

RESPONDENTS' ARGUMENT DOES NOT FOCUS SHARPLY THE BASIC AND ESSENTIAL
ELEMENTS OF THE OFFENSE AND OF THE INSTRUCTIONS TO THE JURY.  AS WE
HAVE STATED ABOVE, THE OFFENSE CHARGED IN THIS INDICTMENT WAS PROVED
ONCE IT WAS ESTABLISHED THAT ANY OF THE DEFENDANTS CONSPIRED TO FIX
PRICES THROUGH THE BUYING PROGRAMS AND THAT THOSE PROGRAMS CAUSED OR
CONTRIBUTED TO THE PRICE RISE.  POWER OF THE COMBINATION TO FIX PRICES
WAS THEREFORE BUT A CONCLUSION FROM THE FACT THAT THE COMBINATION DID
FIX PRICES.  HENCE IN THAT POSTURE OF THE CASE, THE ISSUE HERE IS
WHETHER OR NOT THE FINDING OF THE JURY THAT THE BUYING PROGRAMS
AFFECTED PRICES WAS NECESSARILY DEPENDENT ON THE PARTICIPATION IN THOSE
PROGRAMS OF ALL WHO WERE CONVICTED. 

OBVIOUSLY IT WAS NOT.  THE ORDER GRANTING NEW TRIALS IN NO MANNER
IMPEACHED OR QUESTIONED THE EVIDENCE AS TO THE TOTAL SPOT MARKET
PURCHASES MADE BY ALL COMPANIES (WHETHER DEFENDANTS, CO-CONSPIRATORS OR
OTHERS).  CF. BARTKUS V. UNITED STATES, 21 F.2D 425.  IN THEIR EFFORTS
TO PLACE A FLOOR UNDER THE SPOT MARKETS RESPONDENTS ASSUREDLY RECEIVED
BENEFITS AND ASSISTANCE FROM THE PURCHASES MADE BY OTHER COMPANIES. 
AND THE AMOUNT OF BENEFIT AND ASSISTANCE RECEIVED DID NOT NECESSARILY
DEPEND ON WHETHER OR NOT THOSE OTHER COMPANIES WERE CO-CONSPIRATORS. 
MARKET MANIPULATORS COMMONLY OBTAIN ASSISTANCE FROM THE ACTIVITIES OF
THE INNOCENT AS WELL AS FROM THOSE OF THEIR ALLIES.  THE FACT THAT THEY
MAY CAPITALIZE ON THE PURCHASES OF OTHERS IS NO MORE SIGNIFICANT THAN
THE FACT THAT THEY MAY GAIN DIRECT OR COLLATERAL BENEFITS FROM MARKET
TRENDS, BULLISH FACTORS OR FORTUITOUS CIRCUMSTANCES.  AND THE MERE FACT
THAT THOSE CIRCUMSTANCES MIGHT HAVE CHANGED AND THAT STANDARD OF
INDIANA, SAY, MIGHT HAVE SUBSTANTIALLY IMPAIRED THE EFFECT OF THE
BUYING PROGRAMS ON PRICES BY A CHANGE IN ITS RETAIL POLICIES WAS AS
IRRELEVANT AS WAS THE CHANCE THAT THE CONNALLY ACT MIGHT HAVE BEEN
REPEALED.  THE EFFECT OF THE CONCERTED ACTIVITIES WAS NOT REBUTTED BY
THE FACT THAT CHANGES IN EVENTS MIGHT HAVE DESTROYED THAT EFFECT. 

NOR DID THE CASE AGAINST RESPONDENTS AUTOMATICALLY FALL WHEN THREE OF
THE CORPORATE DEFENDANTS FN63  WERE AWARDED A NEW TRIAL.  WE HAVE HERE
A SITUATION QUITE DIFFERENT FROM THAT WHERE THE PARTICIPATION OF THOSE
TO WHOM A NEW TRIAL WAS GRANTED OR AGAINST WHOM THE JUDGMENT OF
CONVICTION WAS REVERSED WAS NECESSARY FOR THE EXISTENCE OF THE CRIME
CHARGED.  SEE GEBARDI V. UNITED STATES, 287 U.S. 112; MORRISON V.
CALIFORNIA, 291 U.S. 82; KING V. PLUMMER (1902), 2 K.B. 339.  IN THIS
CASE THE CRIME WAS NOT INDIVISIBLE (CF. QUEEN V. GOMPERTZ, 9 A. & E.
(N.S.)  824; FEDER V. UNITED STATES, 257 F. 694) IN THE SENSE THAT THE
EXISTENCE OF A CONSPIRACY UNDER THE SHERMAN ACT WAS NECESSARILY
DEPENDENT ON THE COOPERATION OF THE OTHER DEFENDANTS WITH RESPONDENTS. 
NOR WAS THE CASE SUBMITTED TO THE JURY ON THE ASSUMPTION THAT THE
PARTICIPATION OF ANY OF THE CORPORATIONS WHICH WERE GRANTED NEW TRIALS
WAS INDISPENSABLE TO THE FINDING OF A CONSPIRACY AMONG THE REST.  AS WE
HAVE SEEN, THE COURT CHARGED THAT THE JURY COULD CONVICT ANY OF THE
DEFENDANTS FOUND TO HAVE BEEN MEMBERS OF THE COMBINATION AND THAT IT
NEED NOT CONVICT ALL OR NONE.  IT WAS THE EXISTENCE OF A COMBINATION
AND THE PARTICIPATION IN IT OF ALL OR SOME OF THE DEFENDANTS WHICH WERE
IMPORTANT, NOT THE IDENTITY OF EACH AND EVERY PARTICIPANT.  A
CONSPIRACY UNDER THE SHERMAN ACT MAY EMBRACE TWO OR MORE INDIVIDUALS OR
CORPORATIONS.  CONVICTION OF SOME NEED NOT AWAIT THE APPREHENSION AND
CONVICTION OF ALL.  THE ERRONEOUS CONVICTION OF ONE DOES NOT
NECESSARILY REBUT THE FINDING THAT THE OTHERS PARTICIPATED.  THE THEORY
OF THE CHARGE TO THE JURY WAS NOT THAT THE DEFENDANTS MUST BE
CONVICTED, IF AT ALL, AS A BODY; RATHER THE ISSUE OF GUILT WAS
DISTRIBUTIVE; THE IDENTITY OF ALL THE CO-CONSPIRATORS WAS IRRELEVANT. 

IN A SHERMAN ACT CASE, AS IN OTHER CONSPIRACY CASES, THE GRANT OF A
NEW TRIAL TO SOME DEFENDANTS AND ITS DENIAL TO OTHERS IS NOT PER SE
REVERSIBLE ERROR.  AFTER THE JURY'S VERDICT HAS BEEN SET ASIDE AS
RESPECTS SOME OF THE ALLEGED CO-CONSPIRATORS, THE REMAINING ONES CANNOT
SEIZE ON THAT ACTION AS GROUNDS FOR THE GRANTING OF A NEW TRIAL TO
THEM, UNLESS THEY CAN ESTABLISH THAT SUCH ACTION WAS SO CLEARLY
PREJUDICIAL TO THEM THAT THE DENIAL OF THEIR MOTIONS CONSTITUTED A
PLAIN ABUSE OF DISCRETION.  SEE DUFOUR V. UNITED STATES, 37 APP. D.C.
497, 510-511; STATE V. CHRISTIANSON, 131 MINN. 276, 280; 154 N.W. 1095;
COMMONWEALTH V. BRUNO, 324 PA. 236, 248; 188 A. 320; PEOPLE V. KULAND,
266 N.Y. 1; 193 N.E. 439; BROWNE V. UNITED STATES, 145 F. 1.  THERE IS
A COMPLETE LACK OF ANY SHOWING OF ABUSE OF DISCRETION HERE, FOR NO
PREJUDICE HAS BEEN ESTABLISHED. 

HENCE THIS CASE FALLS WITHIN THE WELL-ESTABLISHED RULE THAT NEITHER
THIS COURT NOR THE CIRCUIT COURT OF APPEALS WILL REVIEW THE ACTION OF A
FEDERAL TRIAL COURT IN GRANTING OR DENYING A MOTION FOR A NEW TRIAL FOR
ERROR OF FACT, SINCE SUCH ACTION IS A MATTER WITHIN THE DISCRETION OF
THE TRIAL COURT.  FAIRMOUNT GLASS WORKS V. CUB FORK COAL CO., 287 U.S.
474.  CERTAIN EXCEPTIONS HAVE BEEN NOTED, SUCH AS INSTANCES WHERE THE
TRIAL COURT HAS "ERRONEOUSLY EXCLUDED FROM CONSIDERATION MATTERS WHICH
WERE APPROPRIATE TO A DECISION ON THE MOTION."  FAIRMOUNT GLASS WORKS
V. CUB FORK COAL CO., SUPRA, P. 483.  BUT THERE ARE NO SUCH
CIRCUMSTANCES HERE.  NO IOTA OF EVIDENCE HAS BEEN ADDUCED THAT THE
TRIAL COURT IN DENYING RESPONDENTS' MOTIONS FAILED TO TAKE INTO
CONSIDERATION THE EFFECT OF THE BUYING PROGRAMS ON GASOLINE PRICES IN
THE MID-WESTERN AREA.  IN FACT IT SEEMS APPARENT THAT THE TRIAL COURT
CONSIDERED THAT ISSUE AND RULED THEREON ADVERSELY TO RESPONDENTS.  IT
CONCLUDED IN SUBSTANCE THAT WHOEVER MAY HAVE BEEN ALL THE MEMBERS OF
THE CONSPIRACY, THERE WAS AMPLE EVIDENCE TO GO TO THE JURY ON THE
NATURE AND EFFECT OF THESE PROGRAMS.    CERTAINLY, DENIAL OF A MOTION
FOR A NEW TRIAL ON THE GROUNDS THAT THE VERDICT WAS AGAINST THE WEIGHT
OF THE EVIDENCE WOULD NOT BE SUBJECT TO REVIEW.  MOORE V. UNITED
STATES, 150 U.S. 57, 61-62; J.W. BISHOP CO. V. SHELHORSE, 141 F. 643,
648; O'DONNELL V. NEW YORK TRANSP.  CO., 187 F. 109, 110.  IN SUBSTANCE
NO MORE THAN THAT IS INVOLVED HERE.    IX.  VARIANCE. 

BY THEIR CROSS PETITION RESPONDENTS CONTEND THAT THERE WAS A FATAL
VARIANCE BETWEEN THE AGREEMENT CHARGED IN THE INDICTMENT AND THE
AGREEMENT PROVED, WITH A CONSEQUENT VIOLATION OF RESPONDENTS' RIGHTS
UNDER THE SIXTH AMENDMENT. 

AS WE HAVE NOTED, CERTAIN TRADE JOURNALS WERE MADE DEFENDANTS.  THE
INDICTMENT CHARGED THAT THEY WERE "THE CHIEF AGENCIES AND
INSTRUMENTALITIES" THROUGH WHICH THE ILLEGALLY RAISED PRICES AFFECTED
PRICES PAID FOR GASOLINE IN THE MID-WESTERN AREA; THAT THEY "KNOWINGLY
PUBLISHED AND CIRCULATED AS SUCH PRICE QUOTATIONS THE WRONGFULLY AND
ARTIFICIALLY RAISED AND FIXED PRICES FOR GASOLINE PAID BY" DEFENDANTS
IN THE BUYING PROGRAMS, WHILE "REPRESENTING THE PRICE QUOTATIONS
PUBLISHED BY THEM" TO BE GASOLINE PRICES "PREVAILING IN SPOT SALES TO
JOBBERS IN TANK CAR LOTS" AND WHILE "KNOWING AND INTENDING THEM TO BE
RELIED ON AS SUCH BY JOBBERS AND TO BE MADE THE BASIS OF PRICES TO
JOBBERS." 

AT THE CLOSE OF THE GOVERNMENT'S CASE THE INDICTMENT WAS DISMISSED,
ON MOTION OF THE GOVERNMENT, AS AGAINST ALL TRADE JOURNAL DEFENDANTS
WHO WENT TO TRIAL.  THIS WAS CLEARLY PROPER, AS THE EVIDENCE ADDUCED
EXCULPATED THEM FROM ANY WRONGDOING.  BUT RESPONDENTS CONTEND THAT THE
DEVICE CHARGED IN THE INDICTMENT WAS ONE BY WHICH RESPONDENTS WERE TO
PAY HIGHER THAN THE ACTUAL SPOT MARKET PRICES FOR THEIR PURCHASES AND
THEN TO SUBSTITUTE IN THE TRADE JOURNAL QUOTATIONS SUCH PRICES FOR THE
LOWER PRICES ACTUALLY PAID BY JOBBERS IN SPOT MARKET SALES.  SINCE
THERE WAS FAILURE OF PROOF ON THIS POINT OF FALSIFICATION, IT IS ARGUED
THAT THERE WAS A VARIANCE.  FOR, ACCORDING TO RESPONDENTS, THAT FEATURE
WAS AN INTEGRAL AND ESSENTIAL PART OF THE PLAN AS CHARGED. 

WE AGREE WITH THE CIRCUIT COURT OF APPEALS THAT THERE WAS NO
VARIANCE.  ANALYSIS OF THE INDICTMENT WHICH WE HAVE SET FORTH, SUPRA,
PP. 166-170, MAKES IT CLEAR THAT THE CHARGE AGAINST RESPONDENTS WAS
SEPARATE FROM AND INDEPENDENT OF THE CHARGE AGAINST THE TRADE JOURNALS
AND THAT THE ALLEGATIONS AGAINST THOSE JOURNALS CONSTITUTED NOT THE
ONLY MEANS BY WHICH THE CONSPIRACY WAS TO BE EFFECTUATED BUT ONLY ONE
OF SEVERAL MEANS (SUPRA, PP. 167-168).  IN EFFECT, THOSE CHARGES IN THE
INDICTMENT SOUGHT TO CONNECT THE TRADE JOURNALS WITH THE CONSPIRACY AS
AIDERS AND ABETTORS.  ON THE OTHER HAND, THE GIST OF THE INDICTMENT
CHARGED A CONSPIRACY BY DEFENDANTS (1) TO RAISE AND FIX THE SPOT MARKET
PRICES AND (2) THEREBY TO RAISE AND FIX THE PRICES IN THE MID-WESTERN
AREA.  SO FAR AS MEANS AND METHODS OF ACCOMPLISHING THOSE OBJECTIVES
WERE CONCERNED, THE CHARGE OF FALSIFICATION OF THE TRADE JOURNAL
QUOTATIONS WAS AS UNESSENTIAL AS WAS THE CHARGE, LIKEWISE UNPROVED,
THAT DEFENDANTS CAUSED THE INDEPENDENT REFINERS TO CURTAIL THEIR
PRODUCTION.  THE PURPOSE AND EFFECT OF THE BUYING PROGRAMS IN RAISING
AND FIXING PRICES WERE IN NO WAY MADE DEPENDENT ON THE UTILIZATION OF
FRAUDULENT TRADE JOURNAL QUOTATIONS.  AS CHARGED, THE TRADE JOURNALS
WERE THE CHIEF INSTRUMENTALITIES BY WHICH THE SPOT MARKET PRICES WERE
CONVERTED INTO PRICES IN THE MID-WESTERN AREA.  HENCE UNDER THIS
INDICTMENT THEY WERE WHOLLY EFFECTIVE FOR RESPONDENTS' PURPOSES, THOUGH
THEY WERE INNOCENT AND THOUGH THEIR QUOTATIONS WERE NOT FALSIFIED AS
CHARGED.  A VARIATION BETWEEN THE MEANS CHARGED AND THE MEANS UTILIZED
IS NOT FATAL.  AND WHERE AN INDICTMENT CHARGES VARIOUS MEANS BY WHICH
THE CONSPIRACY IS EFFECTUATED, NOT ALL OF THEM NEED BE PROVED.  SEE
NASH V. UNITED STATES, 229 U.S. 373, 380.  CF. BOYLE V. UNITED STATES,
259 F. 803, 805. 

X. JURISDICTION OR VENUE. 

THE SIXTH AMENDMENT PROVIDES THAT THE ACCUSED SHALL BE TRIED "BY AN
IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE
BEEN COMMITTED."  RESPONDENTS CONTEND THAT THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF WISCONSIN HAD NO JURISDICTION OR VENUE TO TRY THEM
SINCE THE CRIME WAS NOT COMMITTED IN THAT DISTRICT.  THE CIRCUIT COURT
OF APPEALS HELD TO THE CONTRARY, ONE JUDGE DISSENTING. 

AS WE HAVE NOTED, THE INDICTMENT CHARGED THAT THE DEFENDANTS (1)
CONSPIRED TOGETHER TO RAISE AND FIX THE PRICES ON THE SPOT MARKETS; (2)
RAISED, FIXED, AND MAINTAINED THOSE PRICES AT ARTIFICIALLY HIGH AND NON
COMPETITIVE LEVELS AND "THEREBY INTENTIONALLY INCREASED AND FIXED THE
TANK CAR PRICES OF GASOLINE CONTRACTED TO BE SOLD AND SOLD IN
INTERSTATE COMMERCE AS AFORESAID IN THE MID-WESTERN AREA (INCLUDING THE
WESTERN DISTRICT OF WISCONSIN)"; (3) HAVE "EXACTED LARGE SUMS OF MONEY
FROM THOUSANDS OF JOBBERS" IN THE MID-WESTERN AREA BY REASON OF THE
PROVISIONS OF THE PREVAILING FORM OF JOBBER CONTRACTS WHICH MADE THE
PRICE TO THE JOBBER DEPENDENT ON THE AVERAGE SPOT MARKET PRICE; AND (4)
"IN TURN HAVE INTENTIONALLY RAISED THE GENERAL LEVEL OF RETAIL PRICES
PREVAILING IN SAID MID-WESTERN AREA." 

AS WE HAVE SEEN, THERE WAS SUBSTANTIAL COMPETENT EVIDENCE THAT THE
BUYING PROGRAMS RESULTED IN AN INCREASE OF SPOT MARKET PRICES, OF
PRICES TO JOBBERS AND OF RETAIL PRICES IN THE MID-WESTERN AREA.  AND IT
IS CLEAR THAT CERTAIN CORPORATE RESPONDENTS SOLD GASOLINE DURING THIS
PERIOD IN THE MID-WESTERN AREA AT THE INCREASED PRICES.  THE COURT
CHARGED THE JURY THAT EVEN THOUGH THEY FOUND THAT DEFENDANTS HAD THE
PURPOSE AND POWER TO RAISE THE SPOT MARKET PRICES, THEY MUST ACQUIT THE
DEFENDANTS UNLESS THEY ALSO FOUND AND BELIEVED BEYOND A REASONABLE
DOUBT THAT DEFENDANTS "HAVE ALSO INTENTIONALLY RAISED AND FIXED THE
TANK CAR PRICE OF GASOLINE CONTRACTED TO BE SOLD AND WHICH WAS SOLD IN
INTERSTATE COMMERCE IN THE MID-WESTERN AREA, INCLUDING THE WESTERN
DISTRICT OF WISCONSIN."  IT ALSO CHARGED THAT IT WAS NOT ENOUGH "FOR
THE PROSECUTION TO SHOW AN INCREASE IN THE TANK CAR PRICES OF GASOLINE
WITHIN SAID AREA, BUT YOU MUST ALSO FIND AND BELIEVE BEYOND A
REASONABLE DOUBT AND TO A MORAL CERTAINTY THAT THE DEFENDANTS COMBINED
AND CONSPIRED TOGETHER OR WITH OTHERS FOR THE PURPOSE OF INCREASING AND
FIXING THE SAME AS WELL AS FOR THE PURPOSE OF RAISING AND FIXING THE
TANK CAR PRICES IN SAID SPOT MARKETS, ON ONE OR MORE OF THEM."  IT
FURTHER CHARGED THAT THE JURY IN ORDER TO CONVICT MUST FIND SOME OVERT
ACTS IN THE WESTERN DISTRICT OF WISCONSIN; AND THAT SALES OF GASOLINE
THEREIN BY ANY OF THE DEFENDANTS WOULD CONSTITUTE SUCH OVERT ACTS. 

RESPONDENTS, THOUGH AGREEING THAT THERE WERE SUCH SALES IN THE MID
WESTERN AREA AND THAT THE PRICES ON SUCH SALES WERE AFFECTED BY THE
RISE IN THE SPOT MARKETS, DENY THAT THEY WERE OVERT ACTS IN PURSUANCE
OF THE CONSPIRACY.  RATHER, THEY CONTEND THAT EACH OF SUCH SALES WAS AN
INDIVIDUAL ACT OF A PARTICULAR CONSPIRATOR IN THE ORDINARY COURSE OF
HIS BUSINESS BY WHICH HE ENJOYED THE RESULTS OF A CONSPIRACY CARRIED
OUT IN ANOTHER DISTRICT.  THAT IS TO SAY, THEY TAKE THE POSITION THAT
THE ALLEGED CONSPIRACY WAS LIMITED TO A RESTRAINT OF COMPETITION IN
BUYING AND SELLING ON THE SPOT MARKETS AND INCLUDED NO JOINT AGREEMENT
OR UNDERSTANDING AS RESPECTS SALES IN THE MID-WESTERN AREA.  IN SUPPORT
OF THIS VIEW THEY CITE THE GOVERNMENT'S CONCESSIONS THAT IT "DOES NOT
CLAIM THAT EACH DEFENDANT 'ENTERED INTO AN AGREEMENT NOT TO SELL
JOBBERS EXCEPT IN ACCORDANCE WITH' THE CONTRACT DESCRIBED IN PARAGRAPH
11 OF THE INDICTMENT"; FN64  AND THAT IT DOES NOT CONTEND THAT
DEFENDANTS WERE "SITTING AROUND A TABLE AND AGREEING ON A UNIFORM
RETAIL PRICE."  AND THEY ASSERT THAT THERE WAS NO EVIDENCE THAT
RESPONDENTS AGREED NOT TO SELL GASOLINE IN THE WESTERN DISTRICT OF
WISCONSIN EXCEPT ON THE BASIS OF SPOT MARKET PRICES. 

CONSPIRACIES UNDER THE SHERMAN ACT ARE ON "THE COMMON LAW FOOTING":
THEY ARE NOT DEPENDENT ON THE "DOING OF ANY ACT OTHER THAN THE ACT OF
CONSPIRING" AS A CONDITION OF LIABILITY.  NASH V. UNITED STATES, SUPRA,
AT P. 378.  BUT SINCE THERE WAS NO EVIDENCE THAT THE CONSPIRACY WAS
FORMED WITHIN THE WESTERN DISTRICT OF WISCONSIN, THE TRIAL COURT WAS
WITHOUT JURISDICTION UNLESS SOME ACT PURSUANT TO THE CONSPIRACY TOOK
PLACE THERE.  UNITED STATES V. TRENTON POTTERIES CO., SUPRA, PP. 402
403, AND CASES CITED.  WE AGREE WITH THE CIRCUIT COURT OF APPEALS THAT
THERE WAS AMPLE EVIDENCE OF SUCH OVERT ACTS IN THAT DISTRICT.  THE
FINDING OF THE JURY ON THIS ASPECT OF THE CASE WAS ALSO SUPPORTED BY
SUBSTANTIAL EVIDENCE.  AS WE INDICATED IN OUR DISCUSSION OF THE BUYING
PROGRAMS, THERE WAS SUFFICIENT EVIDENCE TO GO TO THE JURY THAT THE
CONSPIRACY DID NOT END WITH AN AGREEMENT TO MAKE PURCHASES ON THE SPOT
MARKETS; THAT THOSE BUYING PROGRAMS WERE BUT PART OF THE WIDER
STABILIZATION EFFORTS OF RESPONDENTS; THAT THE CHIEF END AND OBJECTIVE
WERE THE RAISING AND MAINTENANCE OF MID-WESTERN PRICES AT HIGHER
LEVELS.  AS STATED BY THE CIRCUIT COURT OF APPEALS A DIFFERENT
CONCLUSION WOULD REQUIRE A BELIEF THAT RESPONDENTS WERE "ENGAGED IN A
PHILANTHROPIC ENDEAVOR."  THEY OBVIOUSLY WERE NOT.  THE FACT THAT NO
UNIFORM JOBBERS' CONTRACT AND NO UNIFORM RETAIL PRICE POLICY WERE
AGREED UPON IS IMMATERIAL.  THE OBJECTIVES OF THE CONSPIRACY WOULD FAIL
IF RESPONDENTS DID NOT BY SOME FORMULA OR METHOD RELATE THEIR SALES IN
THE MID-WESTERN AREA TO THE SPOT MARKET PRICES.  THE OBJECTIVES OF THE
CONSPIRACY WOULD ALSO FAIL IF RESPONDENTS, CONTRARY TO THE PHILOSOPHY
OF ALL THE STABILIZATION EFFORTS, INDULGED IN PRICE CUTTING AND PRICE
WARS.  ACCORDINGLY, SUCCESSFUL CONSUMMATION OF THE CONSPIRACY
NECESSARILY INVOLVED AN UNDERSTANDING OR AGREEMENT, HOWEVER INFORMAL,
TO MAINTAIN SUCH IMPROVEMENTS IN MID-WESTERN PRICES AS WOULD RESULT
FROM THE PURCHASES OF DISTRESS GASOLINE.  THE FACT THAT THAT ENTAILED
NOTHING MORE THAN ADHERENCE TO PRIOR PRACTICE OF RELATING THOSE PRICES
TO THE SPOT MARKET IS OF COURSE IMMATERIAL.  IN SUM, THE CONSPIRACY
CONTEMPLATED AND EMBRACED, AT LEAST BY CLEAR IMPLICATION, SALES TO
JOBBERS AND CONSUMERS IN THE MID-WESTERN AREA AT THE ENHANCED PRICES. 
THE MAKING OF THOSE SALES SUPPLIED PART OF THE "CONTINUOUS COOPERATION"
NECESSARY TO KEEP THE CONSPIRACY ALIVE.  SEE UNITED STATES V. KISSEL,
218 U.S. 601, 607.  HENCE, SALES BY ANY ONE OF THE RESPONDENTS IN THE
MID-WESTERN AREA BOUND ALL.  FOR A CONSPIRACY IS A PARTNERSHIP IN
CRIME; AND AN "OVERT ACT OF ONE PARTNER MAY BE THE ACT OF ALL WITHOUT
ANY NEW AGREEMENT SPECIFICALLY DIRECTED TO THAT ACT."  UNITED STATES V.
KISSEL, SUPRA, P. 608. 

XI.  RESPONDENT MCELROY. 

RESPONDENT MCELROY ARGUES THAT THE JUDGMENT OF CONVICTION RENDERED
AGAINST HIM SHOULD BE REVERSED AND THE INDICTMENT DISMISSED NOT ONLY
FOR THE REASONS HERETOFORE DISCUSSED, BUT MORE SPECIFICALLY ON THE
GROUNDS THAT THERE WAS NO SUBSTANTIAL EVIDENCE THAT HE HAD ANY
KNOWLEDGE OF AND PARTICIPATED IN THE UNLAWFUL CONSPIRACY.  HIS MOTION
FOR A DIRECTED VERDICT AT THE CONCLUSION OF THE CASE WAS DENIED BY THE
TRIAL COURT AND THE CIRCUIT COURT OF APPEALS HELD THAT THERE WAS NO
ERROR IN SUCH DENIAL.  A QUESTION OF LAW IS THUS RAISED, WHICH ENTAILS
AN EXAMINATION OF THE RECORD, NOT FOR THE PURPOSE OF WEIGHING THE
EVIDENCE BUT ONLY TO ASCERTAIN WHETHER THERE WAS SOME COMPETENT AND
SUBSTANTIAL EVIDENCE BEFORE THE JURY FAIRLY TENDING TO SUSTAIN THE
VERDICT.  ABRAMS V. UNITED STATES, 250 U.S. 616, 619; TROXELL V.
DELAWARE, L. & W.R. CO., 227 U.S. 434, 444; LANCASTER V. COLLINS, 115
U.S. 222, 225.  WE HAVE CAREFULLY REVIEWED THE RECORD FOR EVIDENCE OF
MCELROY'S KNOWLEDGE OF AND PARTICIPATION IN THE CONSPIRACY.  BUT
WITHOUT BURDENING THE OPINION WITH A DETAILED EXPOSITION OF THE
EVIDENCE ON THIS POINT, WE ARE OF OPINION THAT THERE WAS NO ERROR IN
THE DENIAL OF HIS MOTION. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  THE INDICTMENT CHARGED 27 CORPORATIONS AND 56 INDIVIDUALS WITH
VIOLATIONS OF SEC. 1 OF THE SHERMAN LAW.  THERE WERE BROUGHT TO TRIAL
26 CORPORATIONS AND 46 INDIVIDUALS.  PRIOR TO SUBMISSION OF THE CASE TO
THE JURY THE COURT DISCHARGED, DIRECTED VERDICTS OF ACQUITTAL, OR
DISMISSED THE INDICTMENT AS TO 10 OF THE CORPORATIONS AND 16 OF THE
INDIVIDUALS.  THE JURY RETURNED VERDICTS OF GUILTY AS TO THE REMAINING
16 CORPORATIONS AND 30 INDIVIDUALS.  THEREAFTER THE TRIAL COURT ORDERED
NEW TRIALS AS TO 3 CORPORATIONS AND 15 INDIVIDUALS AND GRANTED JUDGMENT
NON OBSTANTE VEREDICTO TO ONE OTHER CORPORATION AND 10 OTHER
INDIVIDUALS.  UNITED STATES V. STONE, 308 U.S. 519.  FOR THE OPINIONS
OF THE DISTRICT COURT ON THAT PHASE OF THE CASE, SEE 23 F.SUPP.  937,
938-939; 24 F.SUPP.  575; AND FOR THE OPINION OF THE CIRCUIT COURT OF
APPEALS, 101 F.2D 870. 

THE RESPONDENTS ARE THE REMAINING 12 CORPORATIONS AND 5 INDIVIDUALS,
VIZ., SOCONY-VACUUM OIL COMPANY, INC., WADHAMS OIL COMPANY, EMPIRE OIL
AND REFINING COMPANY, CONTINENTAL OIL COMPANY, THE PURE OIL COMPANY,
SHELL PETROLEUM CORPORATION, SINCLAIR REFINING COMPANY, MID-CONTINENT
PETROLEUM CORPORATION, PHILLIPS PETROLEUM COMPANY, SKELLY OIL COMPANY,
THE GLOBE OIL & REFINING COMPANY (OKLAHOMA), THE GLOBE OIL & REFINING
COMPANY (ILLINOIS), C.E. ARNOTT, VICE PRESIDENT OF SOCONY-VACUUM, H.T.
ASHTON, MANAGER OF LUBRITE DIVISION OF SOCONY-VACUUM, R. H. MCELROY,
JR., TANK-CAR SALES MANAGER OF PURE OIL, P. E. LAKIN, GENERAL MANAGER
OF SALES OF SHELL, R. W. MCDOWELL, VICE PRESIDENT IN CHARGE OF SALES OF
MID-CONTINENT. 

FN2  EACH OF THE CORPORATIONS WAS FINED $5,000; EACH INDIVIDUAL,
$1,000.    FN3  SEC. 1 PROVIDES: 

"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 HEREBY DECLARED TO BE ILLEGAL:  ...  EVERY
PERSON WHO SHALL MAKE ANY CONTRACT OR ENGAGE IN ANY COMBINATION OR
CONSPIRACY HEREBY DECLARED TO BE ILLEGAL SHALL BE DEEMED GUILTY OF A
MISDEMEANOR, AND, ON CONVICTION THEREOF, SHALL BE PUNISHED BY FINE NOT
EXCEEDING $5,000, OR BY IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY BOTH
SAID PUNISHMENTS, IN THE DISCRETION OF THE COURT." 

FN4  THE MAJOR OIL COMPANIES, IN THE MAIN, ENGAGE IN EVERY BRANCH OF
THE BUSINESS - OWNING AND OPERATING OIL WELLS, PIPE-LINES, REFINERIES,
BULK STORAGE PLANTS, AND SERVICE STATIONS.  THOSE ENGAGING IN ALL SUCH
BRANCHES ARE MAJOR INTEGRATED OIL COMPANIES; THOSE LACKING FACILITIES
FOR ONE OR MORE OF THOSE BRANCHES ARE SEMI-INTEGRATED.  "INDEPENDENT
REFINERS" DESCRIBES COMPANIES ENGAGED EXCLUSIVELY IN REFINING. 

FN5  ILLINOIS, INDIANA, IOWA, KANSAS, MICHIGAN, MINNESOTA, MISSOURI,
NORTH DAKOTA, SOUTH DAKOTA, AND WISCONSIN. 

FN6  LOCATED IN THE NORTH, EASTERN PART OF TEXAS. 

FN7  DESCRIBED AS INCLUDING OKLAHOMA, THE NORTHERN AND WESTERN
PORTIONS OF TEXAS, THE SOUTHERN AND EASTERN PORTIONS OF KANSAS, THE
SOUTHERN PORTION OF ARKANSAS, THE NORTHERN PORTION OF LOUISIANA. 

FN8  TWO INDIVIDUALS CONNECTED WITH THOSE JOURNALS WERE ALSO MADE
DEFENDANTS.  ONE OF THE INDIVIDUALS WAS NOT BROUGHT TO TRIAL.  AT THE
CLOSE OF THE GOVERNMENT'S CASE THE INDICTMENT WAS DISMISSED, ON MOTION
OF THE GOVERNMENT, AS AGAINST THE OTHER FOUR TRADE JOURNAL DEFENDANTS. 

FN9  DESCRIBED BY ONE WITNESS AS "WELLS THAT HAVE GOTTEN DOWN TO
LESS THAN 5 BARRELS A DAY, AND IN SOME CASES DOWN TO LESS THAN A BARREL
A DAY, SO THAT THEY ONLY HAVE TO BE PUMPED, SOMETIMES, AN HOUR OR TWO A
DAY TO GET ALL THE OIL THEY WILL PRODUCE AT THAT STAGE OF THE GAME." 

FN10  IT PROVIDED FOR MAXIMUM HOURS OF WORK AND MINIMUM RATES OF PAY;
FORBADE SALES BELOW COST; REQUIRED INTEGRATED COMPANIES TO CONDUCT EACH
BRANCH OF THEIR BUSINESS ON A PROFITABLE BASIS; ESTABLISHED, WITHIN
CERTAIN LIMITS, THE PARITY BETWEEN THE PRICE OF A BARREL OF CRUDE OIL
AND A GALLON OF REFINED GASOLINE AS 18.5 TO 1; AND AUTHORIZED THE
FIXING OF CERTAIN MINIMUM PRICES. 

FN11  AN ORDER OF THE ADMINISTRATOR FIXING MINIMUM PRICES NEVER
BECAME EFFECTIVE.  RESPONDENTS ALSO MADE AN OFFER OF PROOF THAT THE
PETROLEUM ADMINISTRATIVE BOARD ENDEAVORED, IN THE FALL OF 1933, TO
OBTAIN VOLUNTARY ACTION BY THE LARGER COMPANIES TO ACQUIRE AND HOLD
LARGE STOCKS OF CRUDE OIL, SAID TO BE OVERHANGING THE MARKET AND IN
DANGER OF DEPRESSING THE PRICE OF REFINED GASOLINE.  THE OFFER OF PROOF
INDICATED THAT SOME PURCHASES HAD BEEN MADE BUT DID NOT SHOW THE
EXTENT.  RESPONDENTS OFFERED TO SHOW, THROUGH TESTIMONY OF THE CHAIRMAN
OF THE PLANNING & COORDINATION COMMITTEE, THAT IT WAS THE DESIRE OF THE
ADMINISTRATOR THAT CRUDE OIL NOT FALL BELOW $1 A BARREL. 

FN12  THE TESTIMONY OF ONE OF RESPONDENTS' WITNESSES WAS THAT THIS
POLICY CAUSED THE MAJOR COMPANIES TO BUY GASOLINE - IN THE MAIN FROM
SMALL, NON-INTEGRATED REFINERS. 

FN13  JUNE 23, 1934; AUGUST 13, 1934; SEPTEMBER 8, 1934; NOVEMBER 2,
1934.  THEY APPARENTLY WERE SHORT-LIVED, THEIR LEGALITY HAVING BEEN
QUESTIONED BY THE DEPARTMENT OF JUSTICE.  LATE IN 1933 THE INDUSTRY
PROPOSED THE FORMATION OF A NATIONAL PETROLEUM AGENCY, OF WHICH TWENTY
THREE OF THE LARGER COMPANIES, INCLUDING MOST OF THE CORPORATE
RESPONDENTS, WERE TO BE MEMBERS, "TO PURCHASE, HOLD AND, IN AN ORDERLY
WAY, DISPOSE OF SURPLUS GASOLINE WHICH THREATENS THE STABILITY OF THE
OIL PRICE STRUCTURE."  SUBSCRIPTIONS FOR A POOL OF NEARLY $9,000,000
WERE OBTAINED.  THE PLAN WAS NEVER PUT INTO OPERATION.  IN MAY 1934
THERE WAS ANOTHER VOLUNTARY PLAN (WHICH WAS ABORTIVE), THE PLANNING &
COORDINATION COMMITTEE ADDRESSED A RESOLUTION TO CERTAIN MAJOR
COMPANIES CALLING UPON EACH TO PURCHASE AN AMOUNT OF GASOLINE IN MAY
EQUAL TO 3% OF THEIR SALES. 

FN14  UNDER THE NOVEMBER 2, 1934 PROGRAM THE CONTRACT PROVIDED THAT
THE PRICE TO BE PAID FOR THE GASOLINE PURCHASED SHOULD INCREASE 1/4[
PER GALLON WITH EACH 5[ PER BARREL INCREASE IN THE POSTED PRICE OF
CRUDE OIL AND SHOULD DECREASE 1/4[ PER GALLON WITH EACH 5[ PER BARREL
DECREASE IN CRUDE. 

FN15  P. 37.  EXCERPTS FROM THIS REPORT WERE PART OF AN OFFER OF
PROOF BY RESPONDENTS. 

FN16  THE MARKETING COMMITTEE HAD AN EXTENSIVE ORGANIZATION OF
REGIONAL, STATE, LOCAL, OR TEMPORARY COMMITTEES, SCATTERED THROUGHOUT
THE COUNTRY AND REPRESENTATIVE OF THE VARIOUS MARKETING ELEMENTS IN THE
INDUSTRY. 

FN17  HE ALSO TESTIFIED THAT THE BOARD SAID THAT IT COULD NOT TELL
HIM HOW TO DEAL WITH THE PRICE WARS BUT THAT IT WOULD AUTHORIZE HIM TO
DEAL WITH "THE ELEMENTS (OF) THAT CONFLICT THAT CAUSE THEM." 

FN18  SEC. 3(A) OF THE ACT READ: 

"UPON THE APPLICATION TO THE PRESIDENT BY ONE OR MORE TRADE OR
INDUSTRIAL ASSOCIATIONS OR GROUPS, THE PRESIDENT MAY APPROVE A CODE OR
CODES OF FAIR COMPETITION FOR THE TRADE OR INDUSTRY OR SUBDIVISION
THEREOF, REPRESENTED BY THE APPLICANT OR APPLICANTS, IF THE PRESIDENT
FINDS (1) THAT SUCH ASSOCIATIONS OR GROUPS IMPOSE NO INEQUITABLE
RESTRICTIONS ON ADMISSION TO MEMBERSHIP THEREIN AND ARE TRULY
REPRESENTATIVE OF SUCH TRADES OR INDUSTRIES OR SUBDIVISIONS THEREOF,
AND (2) THAT SUCH CODE OR CODES ARE NOT DESIGNED TO PROMOTE MONOPOLIES
OR TO ELIMINATE OR OPPRESS SMALL ENTERPRISES AND WILL NOT OPERATE TO
DISCRIMINATE AGAINST THEM, AND WILL TEND TO EFFECTUATE THE POLICY OF
THIS TITLE:  PROVIDED, THAT SUCH CODE OR CODES SHALL NOT PERMIT
MONOPOLIES OR MONOPOLISTIC PRACTICES:  PROVIDED FURTHER, THAT WHERE
SUCH CODE OR CODES AFFECT THE SERVICES AND WELFARE OF PERSONS ENGAGED
IN OTHER STEPS OF THE ECONOMIC PROCESS, NOTHING IN THIS SECTION SHALL
DEPRIVE SUCH PERSONS OF THE RIGHT TO BE HEARD PRIOR TO APPROVAL BY THE
PRESIDENT OF SUCH CODE OR CODES.  THE PRESIDENT MAY, AS A CONDITION OF
HIS APPROVAL OF ANY SUCH CODE, IMPOSE SUCH CONDITIONS (INCLUDING
REQUIREMENTS FOR THE MAKING OF REPORTS AND THE KEEPING OF ACCOUNTS) FOR
THE PROTECTION OF CONSUMERS, COMPETITORS, EMPLOYEES, AND OTHERS, AND IN
FURTHERANCE OF THE PUBLIC INTEREST, AND MAY PROVIDE SUCH EXCEPTIONS TO
AND EXEMPTIONS FROM THE PROVISIONS OF SUCH CODE, AS THE PRESIDENT IN
HIS DISCRETION DEEMS NECESSARY TO EFFECTUATE THE POLICY HEREIN
DECLARED." 


"WHILE THIS TITLE IS IN EFFECT (OR IN THE CASE OF A LICENSE, WHILE
AGREEMENT, OR LICENSE APPROVED, PRESCRIBED, OR ISSUED AND IN EFFECT
UNDER THIS TITLE, AND ANY ACTION COMPLYING WITH THE PROVISIONS THEREOF
TAKEN DURING SUCH PERIOD, SHALL BE EXEMPT FROM THE PROVISIONS OF THE
ANTITRUST LAWS OF THE UNITED STATES." 

FN19  THIS COMMITTEE EVENTUALLY WAS COMPOSED OF RESPONDENTS MCDOWELL,
ASHTON AND LAKIN AND FIVE FORMER DEFENDANTS, WHO WERE EITHER DISCHARGED
OR GRANTED NEW TRIALS. 

FN20  RESPONDENT R. W. MCDOWELL, A VICE PRESIDENT OF MID-CONTINENT,
TESTIFIED AS FOLLOWS RESPECTING THE ORIGIN AND MEANING OF THIS TERM: 

"THE PHRASE 'DANCING PARTNERS' CAME UP RIGHT THERE AFTER MR. ASHTON
HAD GONE AROUND THE ROOM.  THERE WERE THESE 7 OR 8 SMALL REFINERS WHOM
NO ONE HAD MENTIONED.  HE SAID THIS SITUATION REMINDED HIM OF THE
DANCES THAT HE USED TO GO TO WHEN HE WAS A YOUNG FELLOW.  HE SAID,
'HERE WE ARE AT A GREAT ECONOMIC BALL.'  HE SAID, 'WE HAVE THESE MAJOR
COMPANIES WHO HAVE TO BUY GASOLINE AND ARE BUYING GASOLINE, AND THEY
ARE THE STRONG DANCERS.'  AND HE SAID, 'THEY HAVE ASKED CERTAIN PEOPLE
TO DANCE WITH THEM.  THEY ARE THE BETTER KNOWN INDEPENDENT REFINERS.' 
HE SAID, 'HERE ARE 7 OR 8 THAT NO ONE SEEMS TO KNOW.'  HE SAID, 'THEY
REMIND ME OF THE WALLFLOWERS THAT ALWAYS USED TO BE PRESENT AT THOSE
OLD COUNTRY DANCES.'  HE SAID, 'I THINK IT IS GOING TO BE ONE OF THE
JOBS OF THIS COMMITTEE TO INTRODUCE SOME OF THESE WALLFLOWERS TO SOME
OF THE STRONG DANCERS, SO THAT EVERYBODY CAN DANCE.'  AND FROM THAT
SIMILE, OR WHATEVER YOU WANT TO CALL IT, THE TERM 'DANCING PARTNER'
AROSE." 

FN21  THIS WAS A COMMITTEE OF THREE OF WHICH RESPONDENT MCDOWELL WAS
CHAIRMAN. 

FN22  THE LIST OF THE INDEPENDENT REFINERS HAVING THE DISTRESS
GASOLINE WAS READ AND THE MAJORS MADE THEIR SELECTIONS - SOME ON THE
BASIS OF PRIOR BUSINESS DEALINGS, SOME ON THE BASIS OF PERSONAL
FRIENDSHIPS, SOME BECAUSE OF LOCATION, FREIGHT ADVANTAGES, ETC. 

FN23  PRACTICALLY ALL OF THE INDEPENDENT REFINERS NAMED IN THE
INDICTMENT WERE MEMBERS OF THIS ASSOCIATION.  C.M. BOGGS, THE PRESIDENT
OF THE ASSOCIATION, AND A.V. BOURQUE, ITS SECRETARY, WERE NAMED IN THE
INDICTMENT AS DEFENDANTS.  AS TO THE FORMER, A MOTION FOR DIRECTED
VERDICT OF ACQUITTAL WAS GRANTED; AS TO THE LATTER, THE VERDICT OF THE
JURY WAS SET ASIDE AND THE INDICTMENT DISMISSED. 

FN24 ON MARCH 15, 1935, JACOBI IN A LETTER TO HIS SUPERIORS WROTE:
"THE WRITER HAS BEEN BUSY THIS WEEK ON TANK CAR STABILIZATION WORK, AND
THUS FAR RESULTS ARE GRATIFYING.  OUR COMMITTEE DECIDED ON A PRICE OF 3
3/4[ FOR THIRD GRADE, AND 4 3/4[ FOR 'Q,' FOR NEXT WEEK.  PURCHASING
COMPANIES, INCLUDING OUR OWN UNITS, ARE PAYING THESE PRICES TODAY." 
"Q" GASOLINE IS REGULAR GASOLINE WITH AN OCTANE RATING OF 68-70. 

FN25  WHAT THE PRACTICE OF THE OTHER MEMBER OF THE MECHANICAL SUB
COMMITTEE WAS IN THIS RESPECT DOES NOT APPEAR. 

FN26  ARNOTT WAS REPORTED AS SAYING:  "EAST TEXAS HAS BEEN A MENACE
TO NOT ONLY THE EASTERN SEABOARD, BUT ITS GASOLINE ALSO HAS FOUND ITS
WAY UP INTO THE MID-CONTINENT AND HAS BEEN COMPETITIVE WITH THE SO
CALLED MID-CONTINENT SUPPLIERS' OR REFINERS' GASOLINE." 

THE NORMAL MARKET FOR GASOLINE REFINED IN EAST TEXAS WAS THE STATE OF
TEXAS AND THE ATLANTIC SEABOARD, REACHED THROUGH TANKER SHIPMENTS FROM
GULF PORTS. 

FN27  BUCKLEY FIRST SECURED THE APPROVAL OF HIS EMPLOYER.  HIS
COMPANY, NOT THE ASSOCIATION, PAID HIS SALARY WHILE HE WAS ENGAGED IN
THIS WORK; THE ASSOCIATION PAID HIS TRAVEL AND TELEPHONE EXPENSES. 

FN28  REPRESENTATIVES OF RESPONDENTS SOCONY-VACUUM, PURE OIL,
SINCLAIR AND PROBABLY OF SHELL WERE PRESENT AS WELL AS REPRESENTATIVES
OF OTHER MAJORS.  THE ONLY INDIVIDUAL RESPONDENTS PRESENT WERE ARNOTT
AND MCELROY. 

FN29  THEY WERE PART OF THE ORGANIZATION OF THE PLANNING &
COORDINATION COMMITTEE UNDER THE CODE.  AS TO ALLOCATIONS UNDER THE
CODE SEE INFRA, PP. 201 ET SEQ. 

FN30  NOT INCLUDING, INTER ALIA, CITIES SERVICE EXPORT OIL CO.,
LOUISIANA OIL REFINING CORP., TIDE WATER ASSOC. OIL CO., THE TEXAS CO.,
AND GULF REFINING CO., AS RESPECTS WHICH THE INDICTMENT HAD BEEN
DISMISSED. 

FN31  ONLY THREE OF THE CORPORATE RESPONDENTS PURCHASED THROUGH THE
ASSOCIATION. 

FN32  AN INTER-COMPANY COMMUNICATION BETWEEN EMPLOYEES OF RESPONDENT
PURE OIL WRITTEN IN MAY 1935 STATED:  "PRICES WERE ADVANCED THIS WEEK
IN BOTH REGIONS TO 4 1/2[ AND 4 5/8[-5 3/8[, IN VIEW OF SOME OF THE
REFINERS SQUAWKING BECAUSE OUR BUYING WAS CONSIDERABLY LOWER THAN THE
PUBLICATIONS." 

FN33  IT APPEARS THAT, BEGINNING IN 1935 AND INCREASING IN THE LATTER
PART OF 1936, STATE CHAIN STORE LEGISLATION RESULTED IN THE MAJORS
LEASING MANY OF THEIR RETAIL SERVICE STATIONS. 

FN34 A DEFENDANT TO WHOM A NEW TRIAL WAS GRANTED. 

FN35  FURTHER DETAILS OF STANDARD'S POLICY IN POSTING RETAIL PRICES
ARE DISCUSSED, P. 198. 

FN36  THE FOLLOWING IS ILLUSTRATIVE:  THE SPOT MARKET PRICE (COMPUTED
AS INDICATED) WAS TO GOVERN WHEN THAT PRICE PLUS FREIGHT, PLUS 5 1/2[
PER GALLON DID NOT EXCEED THE POSTED SERVICE STATION PRICE, EXCLUSIVE
OF TAX, AT DESTINATION ON DATE OF SHIPMENT.  IN CASE THAT AGGREGATE
FIGURE EXCEEDED THE SERVICE STATION PRICE, THEN THE PRICE TO THE JOBBER
WOULD BE REDUCED BY AN AMOUNT EQUAL TO ONE-HALF OF THE EXCESS.  IN SOME
CASES THE MAJOR COMPANIES ASSUMED THE FULL AMOUNT OF THE DIFFERENCE. 
THE MARGIN OF 5 1/2[ WAS BASED ON THE SELLER'S DISCOUNT OF 3 1/2[ TO
JOBBERS.  HENCE IF THE SELLER INCREASED OR DECREASED THAT DISCOUNT
GENERALLY THEN THE MARGIN OF 5 1/2[ WOULD BE INCREASED OR DECREASED BY
AN EQUAL OR LIKE AMOUNT.  THE WORDING OF THE VARIOUS CONTRACTS VARIED
BUT THERE WAS GREAT UNIFORMITY IN PRINCIPLE. 

FN37  FOR THIS REASON "SPOT OPEN MARKET" IS FREQUENTLY USED, "OPEN"
MARKET REFERRING TO SALES WHICH ARE NOT MADE ON CONTRACT NOR BASED ON
FUTURE PUBLICATIONS. 

FN38  IN CASE ACTUAL SALES CANNOT BE OBTAINED, HE GETS THE PRICES AT
WHICH THE REFINERS WILL SELL TO JOBBERS IN THAT OPEN SPOT MARKET. 

FN39  MAJOR COMPANIES SELL LITTLE GASOLINE TO JOBBERS ON A SPOT
BASIS.  THE SPOT MARKET PRICES PUBLISHED IN THE TRADE JOURNALS ARE
BASED LARGELY ON SALES BY INDEPENDENT REFINERS. 

FN40  THE NATIONAL PETROLEUM NEWS GIVES THE OILGRAM QUOTATIONS IN
WEEKLY FORM. 

FN41  THAT PERCENTAGE IS APPARENTLY REDUCED TO ABOUT 10.5% IF SALES
OF 29 INDEPENDENT REFINERS (INCLUDING THE 14 NAMED IN THE INDICTMENT)
ARE TAKEN. 

WHAT PERCENTAGE THESE PURCHASES BY RESPONDENTS WERE OF THE MID
CONTINENT SPOT MARKET IN 1935 DOES NOT CLEARLY APPEAR, THE GOVERNMENT'S
ESTIMATE OF ONE-THIRD TO A HALF APPARENTLY BEING SOMEWHAT HIGH. 

FN42  COMPARABLE MOVEMENTS TOOK PLACE IN THE EAST TEXAS SPOT MARKET
FOR REGULAR GASOLINE UNTIL APRIL 21, 1935, WHEN THOSE QUOTATIONS WERE
DISCONTINUED. 

FN43  RESPONDENTS COMPUTED THAT FOR 1935 8% OF THESE PURCHASES OF
THIRD GRADE GASOLINE WERE ABOVE THE HIGH; 10% WERE AT THE HIGH; 7% WERE
BETWEEN THE HIGH AND LOW; 16% WERE BELOW THE LOW. 

FN44  RESPONDENTS' COMPUTATIONS COMPARING THEIR TABULATIONS WITH THE
GOVERNMENT'S TABULATIONS ARE AS FOLLOWS: 

(CHART OMITTED) 

THE GOVERNMENT'S TABULATIONS DEALT WITH 9,204 TANK CARS WHICH
DEFENDANTS (EXCLUDING SINCLAIR) PURCHASED ON A FLAT PRICE BASIS FROM
INDEPENDENT REFINERS IN THE MID-CONTINENT FIELD BETWEEN MARCH 1, 1935
AND APRIL 30, 1936.  RESPONDENTS' TABULATIONS INCLUDED SINCLAIR AND
EXCLUDED SALES BY DEFENDANTS WHO HAD ALREADY BEEN DISMISSED, AND
ELIMINATED OR RECLASSIFIED ALLEGED OMISSIONS OR IMPROPER
CLASSIFICATIONS BY THE GOVERNMENT.    RESPONDENTS' COMPUTATIONS ALSO
SHOW THAT THE PERCENTAGE OF PURCHASES AT PRICES BELOW THE LOW
QUOTATIONS WAS HIGHER DURING THE MARCH-MAY, 1935 PRICE RISE THAN DURING
THE INDICTMENT PERIOD AS A WHOLE, AND THAT THE PERCENTAGE OF PURCHASES
ABOVE THE LOW WAS LOWER DURING THAT PERIOD OF PRICE RISE THAN DURING
THE PERIOD AS A WHOLE. 

FN45  RESPONDENTS' FIGURES WERE:  .7% ABOVE THE HIGH OF THE JOURNAL;
.8% ABOVE THE HIGH OF THE OILGRAM; 3.7% AT THE HIGH OF THE JOURNAL;
6.1% AT THE HIGH OF THE OILGRAM.  APPARENTLY ALL PURCHASES ABOVE THE
HIGH WERE PURCHASES OF THIRD GRADE, NOT REGULAR GASOLINE. 

FN46  ONE GOVERNMENT WITNESS TESTIFIED THAT OUT OF 1,729 CONTRACTS
MADE BY THE DEFENDANT MAJOR OIL COMPANIES WITH JOBBERS IN THE MID
WESTERN AREA DURING 1935, 1,461 PROVIDED THAT THE BASIC PRICE WAS TO BE
DETERMINED "ON THE BASIS OF THE AVERAGE OF THE AVERAGES OF THE HIGH AND
LOW QUOTATIONS OF THE CHICAGO JOURNAL OF COMMERCE AND PLATT'S OILGRAM
ON SPOT MARKET TANK CAR GASOLINE."  DURING 1935 DEFENDANT COMPANIES
SOLD OVER 900,000,000 GALLONS TO JOBBERS IN THE MID-WESTERN AREA OUT OF
TOTAL SALES BY THEM IN THAT AREA OF OVER 4,000,000,000 GALLONS. 

FN47  THESE CHANGES WERE APPARENTLY NOT MADE AUTOMATICALLY, AS THE
FACTOR OF COMPETITION WAS TAKEN INTO CONSIDERATION. 

FN48  A COMPARISON OF MONDAY LOW QUOTATIONS FOR HOUSE BRAND GASOLINE
(OKLAHOMA MARKET) WITH AVERAGE SERVICE STATION PRICES FOR STANDARD'S
REGULAR GRADE GASOLINE (LESS TAXES) FOR 28 CITIES (INCLUDING LA CROSSE
AND MILWAUKEE, WIS.) IN THE MID-WESTERN AREA SHOWS THE LATTER FOLLOWING
THE FORMER UPWARD FROM MARCH TO JUNE 1935 AND IN JANUARY 1936. 

                       OKLAHOMA   SERVICE STATION 

MARCH 4, 1935 .....................  4.375[        12.56[ 

MARCH 11, 1935 ....................  4.625         12.56 

MARCH 18, 1935 ....................  4.750         12.56 

MARCH 25, 1935 ....................  4.750         12.90 

APRIL 1, 1935 .....................  4.875         12.90 

APRIL 8, 1935 .....................  5.000         12.97 

APRIL 15, 1935 ....................  5.125         13.26 

APRIL 22, 1935 ....................  5.250         13.32 

APRIL 29, 1935 ....................  5.250         13.32 

MAY 6, 1935 .......................  5.250         13.56 

MAY 13, 1935 ......................  5.250         13.56 

MAY 20, 1935 ......................  5.375         13.56 

MAY 27, 1935 ......................  5.500         13.56 

JUNE 3, 1935 ......................  5.625         13.56 

JANUARY 6, 1936 ...................  5.625         13.35 

JANUARY 13, 1936 ..................  6.125         13.45 

JANUARY 20, 1936 .................. 6.125         13.93 

JANUARY 27, 1936 ..................  6.125         13.93 

FN49  PRICES BELOW THE NORMAL PRICES WHICH STANDARD POSTED. 

FN50  AVERAGE PRICE (28 CITIES MID-WESTERN AREA) FOR STANDARD'S
REGULAR GASOLINE. 

FN51  SEC. 5 IS SET FORTH, SUPRA, NOTE 18. 

FN52  THAT REPORT WENT ON TO SAY: 

"  ...  WE BELIEVE SUCH A PROGRAM MIGHT BE SUCCESSFUL IN RAISING BOTH
TANK-CAR AND RETAIL PRICES TO THEIR PROPER LEVEL IN RELATIONSHIP TO
CRUDE OIL PRICES. 

"IF HIGHER TANK-CAR PRICES ARE OBTAINED, WE BELIEVE THEY CAN BE
SUSTAINED ONLY BY CORRESPONDING INCREASES IN RETAIL GASOLINE PRICES;
OTHERWISE, THE BURDEN MERELY WOULD BE SHIFTED FROM SMALL REFINERS TO
SMALL MARKETERS, WHO IN MANY INSTANCES HAVE BEEN IN JUST AS MUCH
DISTRESS AS THE REFINERS.  WE FIND THAT ABNORMALLY LOW RETAIL PRICES
CAN DEPRESS TANK-CAR PRICES JUST AS MUCH AS LOW TANK-CAR PRICES CAN
PULL DOWN THE RETAIL PRICE STRUCTURE.  THUS IT APPEARS TO BE ESSENTIAL
THAT BOTH PRICES MOVE UP TOGETHER." 

FN53  THE ADMINISTRATOR WAS REPORTED AS SAYING ABOUT THAT REPORT THAT
IF A PARITY BETWEEN CRUDE OIL PRICES AND GASOLINE PRICES DID NOT COME
SOON HE WOULD CALL A MEETING OF REPRESENTATIVES OF THE INDUSTRY TO SEE
WHAT COULD BE DONE ABOUT IT.  ON MARCH 30, 1935, ACCORDING TO
RESPONDENTS, THE ADMINISTRATOR WROTE CONCERNING THAT REPORT: 

"CONCERNING THE INDEPENDENT REFINERS, OTHER THAN THOSE IN CALIFORNIA,
IT APPEARS FROM THE REPORT OF THE COMMITTEE ON SMALL ENTERPRISE THAT
THE OUTSTANDING DIFFICULTY IS DUE TO THE DISPARITY BETWEEN POSTED CRUDE
OIL PRICES AND REFINERY REALIZATIONS.  THIS SITUATION HAS BEEN
DEPLORABLE FOR MANY MONTHS, BUT IT IS MY UNDERSTANDING THAT AT PRESENT
THE ACTIVITY OF THE STABILIZATION COMMITTEES IS HAVING A DISTINCT
EFFECT IN THE IMPROVEMENT OF REFINERY PRICES, AND THAT WERE IT NOT FOR
OLD CONTRACTS, MANY OF WHICH ARE BADLY SHADED WITH RESPECT TO THE
POSTED PRICE, THE INDEPENDENT REFINER IS APPROACHING A NORMAL MARKET
STRUCTURE." 

RESPONDENTS ALSO OFFERED TO PROVE THAT THE BLAZER COMMITTEE ADVISED
THE BOARD IN APRIL 1935 THAT THERE WAS THEN NO OCCASION TO REDUCE CRUDE
OIL PRICES SINCE "WE CONSIDER TANK CAR GASOLINE PRICES NOW ALMOST UP TO
PARITY WITH SUFFICIENT ADDITIONAL ADVANCES ANTICIPATED IN BOTH TANK CAR
AND RETAIL PRICES"; AND EXPRESSED ITS SATISFACTION "WITH THE SUCCESS OF
THE PROGRAM TO STABILIZE TANK-CAR MARKETS." 

FN54  RESPONDENTS OFFERED TO PROVE THAT ARNOTT'S LAWYER ADVISED HIM
ON JULY 31, 1934, THAT ALTHOUGH THE LETTER OF JULY 20, 1934, WAS "NOT
PRECISELY AN APPROVAL" BY THE ADMINISTRATOR OF ANY AGREEMENT WHICH GAVE
"COMPLETE PROTECTION" FROM ANY PROSECUTION UNDER THE ANTI-TRUST LAWS,
IT NEVERTHELESS WAS "FOR ALL PRACTICAL PURPOSES A COMPLETE PROTECTION
TO YOU AND YOUR COMMITTEES TO ENGAGE IN ALL REASONABLE ACTIVITIES TO
RESTORE PRICES TO NORMAL LEVELS." 

FN55  A SUB-COMMITTEE OF THE PLANNING & COORDINATION COMMITTEE MET
WITH THE BOARD ON MAY 10, 1935, TO DISCUSS THE REPORT OF THE BLAZER
COMMITTEE.  THE RECOMMENDATION IN THAT REPORT THAT THE MAJORS BUY
DISTRESS GASOLINE FROM THE INDEPENDENTS WAS DISCUSSED.  ARNOTT
TESTIFIED THAT HIS GROUP TOLD THE BOARD THAT "WE ALREADY HAD BUYING OF
GASOLINE IN EFFECT" TO WHICH THE CHAIRMAN OF THE BOARD WAS SAID TO HAVE
REPLIED "THAT IS QUITE SO AND DISPOSES OF THAT PART OF THE REPORT." 

FN56  PREPARED BETWEEN DECEMBER 1935 AND FEBRUARY 1936 AND ISSUED IN
JUNE 1936 BY THE DEPARTMENT OF THE INTERIOR. 

FN57  IN SPEAKING OF THE GENERAL WORK OF THIS COMMITTEE (WHICH AS WE
HAVE NOTED WAS SET UP TO DEAL WITH PRICE WARS) THE REPORT STATED:  "THE
STABILIZATION PROGRAM WAS PERHAPS THE OUTSTANDING DEVELOPMENT UNDER THE
CODE." 

FN58 THIS COMPACT (49 STAT. 939) WAS AUTHORIZED IN FEBRUARY 1935 AND
BECAME EFFECTIVE IN AUGUST 1935. 

FN59  UNDER THIS INDICTMENT PROOF THAT PRICES IN THE MID-WESTERN AREA
WERE RAISED AS A RESULT OF THE ACTIVITIES OF THE COMBINATION WAS
ESSENTIAL, SINCE SALES OF GASOLINE BY RESPONDENTS AT THE INCREASED
PRICES IN THAT AREA WERE NECESSARY IN ORDER TO ESTABLISH JURISDICTION
IN THE WESTERN DISTRICT OF WISCONSIN.  HENCE WE HAVE NECESSARILY
TREATED THE CASE AS ONE WHERE EXERTION OF THE POWER TO FIX PRICES (I.E.
THE ACTUAL FIXING OF PRICES) WAS AN INGREDIENT OF THE OFFENSE.  BUT
THAT DOES NOT MEAN THAT BOTH A PURPOSE AND A POWER TO FIX PRICES ARE
NECESSARY FOR THE ESTABLISHMENT OF A CONSPIRACY UNDER SEC. 1 OF THE
SHERMAN ACT.  THAT WOULD BE TRUE IF POWER OR ABILITY TO COMMIT AN
OFFENSE WAS NECESSARY IN ORDER TO CONVICT A PERSON OF CONSPIRING TO
COMMIT IT.  BUT IT IS WELL ESTABLISHED THAT A PERSON "MAY BE GUILTY OF
CONSPIRING ALTHOUGH INCAPABLE OF COMMITTING THE OBJECTIVE OFFENSE." 
UNITED STATES V. RABINOWICH, 238 U.S. 78, 86.  AND IT IS LIKEWISE WELL
SETTLED THAT CONSPIRACIES UNDER THE SHERMAN ACT ARE NOT DEPENDENT ON
ANY OVERT ACT OTHER THAN THE ACT OF CONSPIRING.  NASH V. UNITED STATES,
229 U.S. 373, 378.  IT IS THE "CONTRACT, COMBINATION ...  OR CONSPIRACY
IN RESTRAINT OF TRADE OR COMMERCE" WHICH SEC. 1 OF THE ACT STRIKES
DOWN, WHETHER THE CONCERTED ACTIVITY BE WHOLLY NASCENT OR ABORTIVE ON
THE ONE HAND, OR SUCCESSFUL ON THE OTHER.  SEE 

UNITED STATES V. TRENTON POTTERIES CO., 273 U.S. 392, 402.  CF.
RETAIL LUMBER DEALERS' ASSN. V. STATE, 95 MISS.  337; 48 SO. 1021.  AND
THE AMOUNT OF INTERSTATE OR FOREIGN TRADE INVOLVED IS NOT MATERIAL
(MONTAGUE & CO. V. LOWRY, 193 U.S. 38), SINCE SEC. 1 OF THE ACT BRANDS
AS ILLEGAL THE CHARACTER OF THE RESTRAINT NOT THE AMOUNT OF COMMERCE
AFFECTED.  STEERS V. UNITED STATES, 192 F. 1, 5; PATTERSON V. UNITED
STATES, 222 F. 599, 618-619.  IN VIEW OF THESE CONSIDERATIONS A
CONSPIRACY TO FIX PRICES VIOLATES SEC. 1 OF THE ACT THOUGH NO OVERT ACT
IS SHOWN, THOUGH IT IS NOT ESTABLISHED THAT THE CONSPIRATORS HAD THE
MEANS AVAILABLE FOR ACCOMPLISHMENT OF THEIR OBJECTIVE, AND THOUGH THE
CONSPIRACY EMBRACED BUT A PART OF THE INTERSTATE OR FOREIGN COMMERCE IN
THE COMMODITY.  WHATEVER MAY HAVE BEEN THE STATUS OF PRICE-FIXING
AGREEMENTS AT COMMON LAW (ALLEN, CRIMINAL CONSPIRACIES IN RESTRAINT OF
TRADE AT COMMON LAW, 23 HARV. L. REV. 531) THE SHERMAN ACT HAS A
BROADER APPLICATION TO THEM THAN THE COMMON LAW PROHIBITIONS OR
SANCTIONS.  SEE UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S.
290, 328.  PRICE-FIXING AGREEMENTS MAY OR MAY NOT BE AIMED AT COMPLETE
ELIMINATION OF PRICE COMPETITION.  THE GROUP MAKING THOSE AGREEMENTS
MAY OR MAY NOT HAVE POWER TO CONTROL THE MARKET.  BUT THE FACT THAT THE
GROUP CANNOT CONTROL THE MARKET PRICES DOES NOT NECESSARILY MEAN THAT
THE AGREEMENT AS TO PRICES HAS NO UTILITY TO THE MEMBERS OF THE
COMBINATION.  THE EFFECTIVENESS OF PRICE-FIXING AGREEMENTS IS DEPENDENT
ON MANY FACTORS, SUCH AS COMPETITIVE TACTICS, POSITION IN THE INDUSTRY,
THE FORMULA UNDERLYING PRICE POLICIES.  WHATEVER ECONOMIC JUSTIFICATION
PARTICULAR PRICE-FIXING AGREEMENTS MAY BE THOUGHT TO HAVE, THE LAW DOES
NOT PERMIT AN INQUIRY INTO THEIR REASONABLENESS.  THEY ARE ALL BANNED
BECAUSE OF THEIR ACTUAL OR POTENTIAL THREAT TO THE CENTRAL NERVOUS
SYSTEM OF THE ECONOMY.  SEE HANDLER, FEDERAL ANTI-TRUST LAWS - A
SYMPOSIUM (1931), PP. 91 ET SEQ. 

THE EXISTENCE OR EXERTION OF POWER TO ACCOMPLISH THE DESIRED
OBJECTIVE (UNITED STATES V. UNITED STATES STEEL CORP., 251 U.S. 417,
444-451; UNITED STATES V. INTERNATIONAL HARVESTER CO., 274 U.S. 693,
708-709) BECOMES IMPORTANT ONLY IN CASES WHERE THE OFFENSE CHARGED IS
THE ACTUAL MONOPOLIZING OF ANY PART OF TRADE OR COMMERCE IN VIOLATION
OF SEC. 2 OF THE ACT.  AN INTENT AND A POWER TO PRODUCE THE RESULT
WHICH THE LAW CONDEMNS ARE THEN NECESSARY.  AS STATED IN SWIFT & CO. V.
UNITED STATES, 196 U.S. 375, 396, "  ...  WHEN THAT INTENT AND THE
CONSEQUENT DANGEROUS PROBABILITY EXIST, THIS STATUTE, LIKE MANY OTHERS
AND LIKE THE COMMON LAW IN SOME CASES, DIRECTS ITSELF AGAINST THAT
DANGEROUS PROBABILITY AS WELL AS AGAINST THE COMPLETED RESULT."  BUT
THE CRIME UNDER SEC. 1 IS LEGALLY DISTINCT FROM THAT UNDER SEC.
2(UNITED STATES V. MACANDREWS & FORBES CO., 149 F. 836; UNITED STATES
V. BUCHALTER, 88 F.2D 625) THOUGH THE TWO SECTIONS OVERLAP IN THE SENSE
THAT A MONOPOLY UNDER SEC. 2 IS A SPECIES OF RESTRAINT OF TRADE UNDER
SEC. 1.  STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 59-61;
PATTERSON V. UNITED STATES, SUPRA, P. 620.  ONLY A CONFUSION BETWEEN
THE NATURE OF THE OFFENSES UNDER THOSE TWO SECTIONS (SEE UNITED STATES
V. NELSON, 52 F. 646; UNITED STATES V. PATTERSON, 55 F. 605; CHESAPEAKE
& O FUEL CO. V. UNITED STATES, 115 F. 610) WOULD LEAD TO THE CONCLUSION
THAT POWER TO FIX PRICES WAS NECESSARY FOR PROOF OF A PRICE-FIXING
CONSPIRACY UNDER SEC. 1.  CF. STATE V. EASTERN COAL CO., 29 R.I. 254;
70 A. 1; STATE V. SCOLLARD, 126 WASH. 335; 218 P. 224. 

FN60  IT SHOULD BE NOTED IN THIS CONNECTION THAT THE TYPICAL METHOD
ADOPTED BY CONGRESS WHEN IT HAS LIFTED THE BAN OF THE SHERMAN ACT IS
THE SCRUTINY AND APPROVAL OF DESIGNATED PUBLIC REPRESENTATIVES.  UNDER
THE N.I.R.A. THIS COULD BE DONE THROUGH THE CODE MACHINERY WITH THE
APPROVAL OF THE PRESIDENT AS PROVIDED IN SECS. 3(A) AND 5, SUPRA NOTE
18.  UNDER SEC. 407(8) OF THE TRANSPORTATION ACT OF 1920(41 STAT. 482;
49 U.S.C. SEC. 5(8)) CARRIERS, INCLUDING CERTAIN EXPRESS COMPANIES,
WHICH WERE CONSOLIDATED PURSUANT TO ANY ORDER OF THE INTERSTATE
COMMERCE COMMISSION WERE RELIEVED FROM THE OPERATION OF THE ANTI-TRUST
LAWS.  AND SEE THE MALONEY ACT (SEC. 15A OF THE SECURITIES EXCHANGE ACT
OF 1934; 52 STAT. 1070) PROVIDING FOR THE FORMATION OF ASSOCIATIONS OF
BROKERS AND DEALERS WITH THE APPROVAL OF THE SECURITIES AND EXCHANGE
COMMISSION AND ESTABLISHING CONTINUOUS SUPERVISION BY THE COMMISSION
OVER SPECIFIED ACTIVITIES OF SUCH ASSOCIATIONS; AND THE BITUMINOUS COAL
ACT OF 1937(50 STAT. 72), ESPECIALLY SECS. 4 AND 12 - PARTICULARLY AS
THEY RELATE TO THE FIXING OF MINIMUM AND MAXIMUM PRICES BY THE
BITUMINOUS COAL COMMISSION. 

FN61  RESPONDENTS STRONGLY URGE THAT THIS IS NOT TRUE IN THE CASE OF
THE TESTIMONY OF AN EMPLOYEE OF ONE OF THE TRADE JOURNALS.  HIS PRIOR
TESTIMONY INDICATED (1) THAT THE MAJOR COMPANIES WERE BUYING EXACTLY AT
THE JOURNAL QUOTATIONS, SO THAT THE GRAPH OF THOSE QUOTATIONS
REPRESENTED PRICES PAID UNDER THE BUYING PROGRAM; (2) THAT PRICES PAID
BY THE MAJORS "OUTWEIGHED" THE JOBBERS' SALES REPORTED TO HIS
JOURNALS.  AT THE TRIAL HE TESTIFIED THAT THOSE GRAND JURY STATEMENTS
WERE NOT TRUE.  AND THEY WERE NOT.  BUT THOSE MATTERS ARE NOT ESSENTIAL
ISSUES IN THE CASE.  THAT PURCHASES UNDER THE BUYING PROGRAM DID NOT
LEAD THE MARKET UP, THAT THE VAST MAJORITY OF PURCHASES WERE AT OR
BELOW THE LOW QUOTATIONS, THAT THE VOLUME OF PURCHASES DID NOT
ELIMINATE ALL COMPETITION, THAT THE SPOT MARKET PRICES WERE STILL
DETERMINED BY COMPETITIVE FORCES, THAT THE VOLUME OF PURCHASES UNDER
THE BUYING PROGRAMS WAS RELATIVELY SMALL ARE WHOLLY IMMATERIAL, AS WE
HAVE SEEN. 

FN62  IN THIS CONNECTION THE COURT SAID (P. 944) THAT IT APPEARED
"WITHOUT DISPUTE THAT A CONCERTED BUYING MOVEMENT TOOK PLACE IN THE MID
CONTINENT FIELD"; THAT AS TO ITS CHARACTER AND THE EXISTENCE OF A
CONCERTED EAST TEXAS PROGRAM, THERE WAS "AMPLE EVIDENCE TO TAKE THE
CASE TO THE JURY"; AND THAT THE PROOFS WERE SUFFICIENT TO SUSTAIN THE
VERDICT AS TO THE CHARGE THAT DEFENDANTS "WERE ABLE TO AND DID
EFFECTUALLY TIE THE JOBBERS' PRICE" IN THE MID-WESTERN AREA TO THE TANK
CAR PRICE IN THE SPOT MARKET.  IT SIGNIFICANTLY ADDED (P. 944):  "IT IS
CLAIMED BY THE DEFENDANTS THAT THEY DID NOT HAVE THE POWER TO CONTROL
THE PRICE AS CHARGED, AND THAT INASMUCH AS SOME OF THE LARGE COMPANIES
DID NOT OR HAVE NOT BEEN SHOWN TO HAVE PARTICIPATED IN THE MOVEMENT,
THE POWER OF THE DEFENDANTS IN THAT RESPECT WAS INADEQUATE FOR THE
PURPOSE.  THIS DOES NOT FOLLOW, FOR THE REASON THAT LARGE BUYERS BOTH
IN EAST TEXAS AND IN THE MID-CONTINENT FIELDS, WHILE ACTING SEPARATELY,
WERE NEVERTHELESS BUYING FOR THEIR REQUIREMENTS IN THESE FIELDS, AS
THEY HAD ALWAYS DONE AND AS DEFENDANTS HAD EVERY REASON TO BELIEVE THEY
WOULD CONTINUE TO DO.  THE DEFENDANTS WERE THUS ABLE TO CONSIDER THAT
THESE BUYINGS WOULD NECESSARILY REDUCE THE AVAILABLE GASOLINE WHICH
THEY PROPOSED TO TAKE OFF THE MARKET JUST AS EFFECTIVELY AS THOUGH
THESE OTHER COMPANIES HAD JOINED IN THE PROGRAM.  THE AMOUNT OF
DISTRESS GASOLINE WOULD BE EXACTLY THE SAME IN ANY EVENT, AND THE PROOF
SHOWS THAT THE SURPLUS WAS IN FACT A VERY SMALL PART OF THE TOTAL, SO
MUCH SO THAT MOST OF THE DEFENDANTS HAVE SHOWN THAT ITS ACQUISITION IN
ADDITION TO OTHER BUYING DID NOT MATERIALLY INCREASE THEIR
INVENTORIES.  I AM SATISFIED THAT THERE WAS AMPLE EVIDENCE TO SUSTAIN
THE CONTENTION OF THE GOVERNMENT THAT THE DEFENDANTS DID HAVE POWER TO
CONTROL THE MARKET, AND THAT THEY DID SO, AS CHARGED." 

FN63  THE QUESTION OF THE EFFECT OF THE BUYING PROGRAMS ON MARKET
PRICES OBVIOUSLY CONCERNS ONLY THE CORPORATE DEFENDANTS.  THE ONE
CORPORATE DEFENDANT GRANTED AFTER VERDICT, A DIRECTED VERDICT OF
ACQUITTAL WAS THE GLOBE OIL & REFINING CO. (KANSAS).  THE RECORD DOES
NOT SHOW THAT THIS COMPANY MADE ANY SPOT MARKET PURCHASES IN 1935 OR
1936. 

FN64  THE STANDARD FORM OF JOBBER CONTRACT REFERRED TO IN PAR. 11 OF
THE INDICTMENT WAS DESCRIBED THEREIN AS FOLLOWS:  "THE PRICE OF
GASOLINE TO THE JOBBER SHALL BE THE AVERAGE SPOT MARKET PRICE,
DETERMINED BY AVERAGING THE HIGH AND LOW SPOT MARKET PRICES FOR
GASOLINE OF COMPARABLE OCTANE RATING PUBLISHED BY DEFENDANT PLATT'S
OILGRAM, FOR THE TULSA, OKLAHOMA, MARKET, AND BY DEFENDANT CHICAGO
JOURNAL OF COMMERCE ON DATE OF SHIPMENT.  IF THE AVERAGE SPOT MARKET
PRICE PLUS FREIGHT TO DESTINATION SHALL ALLOW THE BUYER A MARGIN OF
LESS THAN 5 1/2[ PER GALLON BELOW THE SERVICE STATION PRICE POSTED BY
DEFENDANT STANDARD OF INDIANA, THEN THE BUYER AND THE SELLER SHALL
SHARE EQUALLY IN THE DEFICIT BELOW A 5 1/2[ MARGIN.  IN CERTAIN STATES
IN WHICH THE STANDARD OF INDIANA HAS RECENTLY DISCONTINUED THE POSTING
OF RETAIL PRICES, SUCH JOBBER MARGINS HAVE BEEN CALCULATED ON THE BASIS
OF A MARGIN OF 2[ BELOW THE DEALER TANK WAGON PRICES POSTED BY THE
STANDARD OF INDIANA (SUCH TANK WAGON PRICES HAVING USUALLY BEEN 3 1/2[
BELOW THE POSTED RETAIL PRICES)." 

THE CHIEF JUSTICE AND MR. JUSTICE MURPHY DID NOT PARTICIPATE IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE ROBERTS, DISSENTING: 

I REGRET THAT I AM UNABLE TO AGREE TO THE COURT'S DECISION.  I THINK
THAT FOR VARIOUS REASONS THE JUDGMENT OF THE DISTRICT COURT SHOULD NOT
STAND. 

THE OPINION FULLY AND FAIRLY SETS FORTH THE FACTS PROVED AT THE
TRIAL, AND TO ITS STATEMENT NOTHING NEED BE ADDED.  SOME OF THE REASONS
FOR MY INABILITY TO AGREE WITH THE COURT'S CONCLUSIONS FOLLOW: 

THE GOVERNMENT RELIED FOR VENUE IN THE WESTERN DISTRICT OF WISCONSIN
UPON THE COMMISSION IN THAT DISTRICT OF OVERT ACTS IN AID OF THE
ALLEGED COMMON ENTERPRISE.  I THINK THE INDICTMENT FAILS TO ALLEGE, AND
THE EVIDENCE FAILS TO DISCLOSE, THE COMMISSION OF ANY SUCH ACT IN THE
DISTRICT OF TRIAL.  I AGREE WITH THE DISSENTING JUDGE IN THE CIRCUIT
COURT OF APPEALS THAT THE CASE SHOULD BE DISMISSED FOR THIS REASON. 

PARAGRAPH 17 OF THE INDICTMENT ALLEGES THAT THE SPOT MARKET TANK CAR
PRICES OF GASOLINE SUBSTANTIALLY INFLUENCE THE RETAIL PRICES. 

PARAGRAPH 18 IS THE ONLY ONE THAT DEFINES THE CHARGED CONSPIRACY.  IT
ALLEGES THAT THE DEFENDANTS AND OTHERS, KNOWING THE FACTS PLEADED BY
WAY OF INDUCEMENT (INCLUDING THE FACT THAT RETAIL PRICES FOLLOW SPOT
MARKET TANK CAR PRICES), "COMBINED AND CONSPIRED TOGETHER FOR THE
PURPOSE OF ARTIFICIALLY RAISING AND FIXING THE TANK CAR PRICES OF
GASOLINE IN THE AFOREMENTIONED SPOT MARKETS, AND, AS INTENDED BY THEM,
DEFENDANTS HAVE ARTIFICIALLY RAISED AND FIXED SUCH SPOT MARKET TANK CAR
PRICES OF GASOLINE AND HAVE MAINTAINED SUCH PRICES AT ARTIFICIALLY HIGH
AND NON-COMPETITIVE LEVELS AND AT LEVELS AGREED UPON AMONG THEM AND
HAVE THEREBY INTENTIONALLY INCREASED AND FIXED THE TANK CAR PRICES OF
GASOLINE CONTRACTED TO BE SOLD, AND SOLD, IN INTERSTATE COMMERCE AS
AFORESAID IN THE MIDWESTERN AREA (INCLUDING THE WESTERN DISTRICT OF
WISCONSIN),  ... "  IT IS FURTHER ALLEGED THAT THE DEFENDANTS HAVE
ARBITRARILY, DUE TO THE FORM OF THEIR CONTRACT FN1  WITH JOBBERS,
EXACTED LARGE SUMS OF MONEY FROM JOBBERS AND, IN TURN, HAVE
INTENTIONALLY RAISED THE GENERAL LEVEL OF RETAIL PRICES IN THE
MIDWESTERN AREA (INCLUDING THE WESTERN DISTRICT OF WISCONSIN). 

THE SOLE AND ONLY CONSPIRACY CHARGED IS THE AGREEMENT ARTIFICIALLY TO
RAISE AND FIX SPOT MARKET TANK CAR PRICES OF GASOLINE IN THE MID
CONTINENT FIELD. 

PARAGRAPH 19 IS DEVOTED TO THE MEANS BY WHICH THE CONSPIRACY THUS
DESCRIBED WAS "EFFECTUATED."  THE CONDUCT OF THE DEFENDANTS IN THIS
RESPECT IS DESCRIBED AS THEIR ENGAGING AND PARTICIPATING IN TWO
CONCERTED GASOLINE BUYING PROGRAMS, ONE, THE EAST TEXAS BUYING PROGRAM,
AND THE OTHER THE MID-CONTINENT BUYING PROGRAM, FOR THE PURCHASE BY
EACH OF THEM FROM INDEPENDENT REFINERS IN SPOT TRANSACTIONS OF LARGE
QUANTITIES OF GASOLINE IN THE EAST TEXAS AND MID-CONTINENT FIELDS. 

AFTER DESCRIBING THESE BUYING PROGRAMS IN SUBSEQUENT PARAGRAPHS, THE
INDICTMENT, IN PARAGRAPH 25, ALLEGES THAT THE CONSPIRACY "HAS OPERATED
AND HAS BEEN CARRIED OUT IN PART WITHIN THE WESTERN DISTRICT OF
WISCONSIN."  THE METHOD OF ITS OPERATION IN THAT DISTRICT IS DESCRIBED
AS FOLLOWS: "IN PURSUANCE OF SAID COMBINATION AND CONSPIRACY, DEFENDANT
MAJOR OIL COMPANIES (WITH THE EXCEPTION OF STANDARD OF INDIANA AND
GULF) HAVE CONTRACTED TO SELL AND HAVE SOLD AND HAVE DELIVERED LARGE
QUANTITIES OF GASOLINE IN TANK CAR LOTS TO JOBBERS WITHIN SAID DISTRICT
AT THE ARTIFICIALLY RAISED AND FIXED AND NON-COMPETITIVE PRICES
AFORESAID AND HAVE ARBITRARILY EXACTED FROM JOBBERS WITHIN SAID
DISTRICT LARGE SUMS OF MONEY.  DEFENDANT MAJOR OIL COMPANIES (WITH THE
EXCEPTION OF GULF) HAVE SOLICITED AND TAKEN CONTRACTS AND ORDERS FOR
SAID GASOLINE WITHIN SAID DISTRICT, SOMETIMES BY SALES REPRESENTATIVES
LOCATED THERE, WHICH DISTRICT HAS BEEN AN IMPORTANT MARKET FOR THEIR
PRODUCT AND THEY HAVE REQUIRED RETAIL DEALERS AND CONSUMERS IN SAID
DISTRICTS TO PAY ARTIFICIALLY INCREASED PRICES FOR GASOLINE AS
AFORESAID, ALL BY VIRTUE OF SAID COMBINATION AND CONSPIRACY AND
PURSUANT TO THE PURPOSES AND ULTIMATE OBJECTIVES THEREOF." 

THUS, AFTER DESCRIBING THE CONSPIRACY AS ONE TO BUY ON SPOT MARKETS
FOR THE PURPOSE OF RAISING THE PRICE OF GASOLINE ON THOSE MARKETS, THE
INDICTMENT PURPORTS TO CHARGE, AS OVERT ACTS, ENTIRELY UNRELATED
TRANSACTIONS OF INDIVIDUAL DEFENDANTS IN THE RESALE OF GASOLINE TO
JOBBERS AND AT RETAIL IN THE WESTERN DISTRICT OF WISCONSIN. 

THERE IS NO EVIDENCE IN THE RECORD THAT ANY OF THE PURCHASES MADE BY
THE DEFENDANTS PURSUANT TO THE CONSPIRACY WAS MADE IN WISCONSIN.  BUT
IF THE INDICTMENT COULD BEAR THE CONSTRUCTION THAT THE CHARGED
CONSPIRACY INVOLVED AN AGREEMENT AS TO THE TERMS OF RESALE TO JOBBERS
AND RETAILERS, PROOF WAS LACKING TO SUPPORT ANY SUCH ALLEGED
AGREEMENT.  GOVERNMENT COUNSEL, BOTH IN PLEADING AND IN ADMISSIONS AT
TRIAL, SO CONCEDED. 

IN ITS BILL OF PARTICULARS THE GOVERNMENT SAID: 

"THE GOVERNMENT DOES NOT CLAIM THAT EACH DEFENDANT ENTERED INTO AN
AGREEMENT NOT TO SELL JOBBERS EXCEPT IN ACCORDANCE WITH 'THE CONTRACT
DESCRIBED IN PARAGRAPH 11 OF THE INDICTMENT.'" 

AT TRIAL GOVERNMENT COUNSEL REPEATEDLY DISAVOWED ANY CHARGE IN THE
INDICTMENT OR ANY CLAIM OF THE GOVERNMENT THAT THERE WAS AN AGREEMENT
AMONGST THE DEFENDANTS WITH RESPECT TO THE PRICE AT WHICH GASOLINE
SHOULD BE SOLD TO JOBBERS OR AT RETAIL.  THE EVIDENCE SHOWED, WITHOUT
CONTRADICTION, THAT THE STANDARD OIL COMPANY OF INDIANA WAS THE MARKET
LEADER IN THIS AREA, AND THAT WHEN IT POSTED ITS PRICE NONE OF THE
OTHER DEFENDANTS COULD SELL AT A HIGHER PRICE.  IT FURTHER SHOWED THAT
AT VARIOUS TIMES STANDARD WAS FORCED TO REDUCE ITS PRICE TO MEET THE
COMPETITION OF OTHERS.  IN THIS CONNECTION GOVERNMENT COUNSEL MADE THE
FOLLOWING STATEMENTS: 

"  ...  WE DO NOT SAY THAT THE STANDARD OF INDIANA WHEN IT POSTS A
RETAIL PRICE FIRST CONSULTS WITH THE OTHER COMPANIES TO FIND OUT WHAT
RETAIL PRICE SHOULD BE POSTED. 

"IF THAT IS WHAT YOU'RE WORRYING ABOUT, IF YOU THINK WE'RE CHARGING
YOU WITH SITTING AROUND A TABLE AND AGREEING ON A UNIFORM RETAIL PRICE,
DON'T WORRY BECAUSE THAT ISN'T WHAT WE ARE CHARGING." 

IN ITS BRIEF IN THIS COURT THE GOVERNMENT ATTEMPTS TO AVOID THE
EFFECT OF THESE CONCESSIONS BY THE STATEMENT THAT THE DEFENDANTS "WERE
NOT FREE TO SELL AS THEY PLEASED IN THE MIDWESTERN AREAS" AND ADDS THAT
"AN OBLIGATION TO ADHERE TO THEIR PRIOR PRICE PRACTICE OF SELLING ON
THE BASIS OF SPOT MARKET PRICES WAS IMPLICIT IN THEIR UNLAWFUL
AGREEMENT."  THIS AMOUNTS TO SAYING THAT THE CONSPIRACY WAS NOT THE ONE
CHARGED IN THE INDICTMENT BUT WAS A MUCH MORE AMPLE CONSPIRACY NOT ONLY
TO RAISE THE GENERAL LEVEL OF TANK CAR PRICES ON THE SPOT MARKET BY
PURCHASING ON THAT MARKET BUT TO RAISE, MAINTAIN, AND FIX UNIFORM
RESALE PRICES TO JOBBERS AND RETAILERS.  BUT THIS CONTENTION DOES NOT
AID THE GOVERNMENT FOR THERE IS NO EVIDENCE OF ANY AGREEMENT TO RAISE,
OR TO MAINTAIN, JOBBER AND RETAIL PRICES, BUT, ON THE CONTRARY,
EVIDENCE THAT COMPETITION IN SUCH SALES EXISTED DURING THE PERIOD IN
QUESTION. 

SITUATIONS ARISE, AND RESULTS ENSUE, FROM THE PROSECUTION OF ANY
AGREEMENT OR CONSPIRACY.  INDIVIDUAL DEFENDANTS MAY EXPECT BENEFITS TO
FOLLOW FROM THEIR ADHERENCE TO A CONSPIRACY OR AGREEMENT; BUT BENEFITS
OR RESULTS, WHETHER ANTICIPATED OR UNFORESEEN, OCCURRING AFTER
CONSUMMATION OF THE CONSPIRACY, AND BECAUSE OF IT, ARE NOT OVERT ACTS
DONE IN AID AND FURTHERANCE OF THE CONSPIRACY.  THE AUTHORITIES TO THIS
EFFECT ARE UNIFORM.  FN2 

THE GOVERNMENT RELIES ON UNITED STATES V. TRENTON POTTERIES CO., 273
U.S. 392.  THAT CASE IS CLEARLY NOT IN POINT.  THERE THE CONSPIRACY WAS
TO FIX THE PRICES OF THE COMMODITY MANUFACTURED AND SOLD BY THE
DEFENDANTS AND TO ADHERE TO THE PRICES SO FIXED.  THIS COURT HELD THAT
A SALE MADE, PURSUANT TO THAT AGREEMENT, IN THE SOUTHERN DISTRICT OF
NEW YORK AFFORDED VENUE IN THAT DISTRICT OF AN INDICTMENT FOR VIOLATION
OF THE SHERMAN ACT.  THE CASE WOULD BE APPOSITE IF THE PLEADING AND
PROOF IN THE INSTANT CASE WERE OF A CONSPIRACY TO FIX AND MAINTAIN
JOBBER AND RETAIL PRICES AND ADHERENCE TO THE AGREEMENT IN SALES TO
JOBBERS AND RETAILERS.  NEITHER PLEADING NOR PROOF GOES TO ANY SUCH
CONSPIRACY. 

IN ACCORDANCE WITH THE GOVERNMENT'S CONTENTION, THE TRIAL COURT
REPEATEDLY CHARGED THAT, IN ORDER TO CONVICT, THE JURY MUST FIND THAT A
COMBINATION EXISTED AND THAT THE COMBINATION AGREED TO, AND HAD THE
POWER TO, RAISE THE TANK CAR SPOT MARKET PRICE OF GASOLINE.  OF COURSE,
THE JURY WAS AT LIBERTY TO FIND THAT ANY NUMBER OF THE DEFENDANTS LESS
THAN ALL FULFILLED THE CONDITIONS NAMED BY THE COURT.  BY ITS VERDICT
THE JURY FOUND THAT THOSE WHO WERE CONVICTED, AS A BODY, (1) POSSESSED
THE POWER TO RAISE THE PRICE AND (2) AGREED SO TO DO.  THE TRIAL COURT
GRANTED A NEW TRIAL TO A NUMBER OF DEFENDANTS, INCLUDING STANDARD OF
INDIANA, THE LARGEST MAJOR OIL COMPANY DOING BUSINESS IN THE AREA. 

STANDARD WAS GRANTED A NEW TRIAL ON THE GROUND THAT THERE WAS NO
SUFFICIENT EVIDENCE TO CONNECT IT WITH THE CONSPIRACY.  BY REFUSING NEW
TRIALS TO THE OTHER CORPORATE DEFENDANTS THE COURT HAS ENTERED ITS OWN
VERDICT THAT THE OTHERS INVOLVED, EXCLUDING STANDARD, HAD THE POWER,
AND AGREED, TO RAISE THE LEVEL OF SPOT MARKET PRICES IN THE MIDWESTERN
AREA.  THERE IS NO JURY VERDICT TO THAT EFFECT; NO JURY HAS EVER PASSED
UPON THAT QUESTION, BUT AN AFFIRMATIVE FINDING ON THAT QUESTION IS
VITAL TO THE GUILT OF THE DEFENDANTS NOW BEFORE US.  TO AFFIRM THE
JUDGMENT OF CONVICTION IS TO AFFIRM A FINDING OF FACT BY THE TRIAL
JUDGE WITHOUT A JURY AND TO DENY THE RESPONDENTS THE RIGHT TO JURY
TRIAL GUARANTEED BY THE SIXTH AMENDMENT OF THE CONSTITUTION. 

THE COURT'S INSTRUCTIONS TO THE JURY WERE THAT THEY SHOULD RETURN A
VERDICT OF GUILTY IF THEY FOUND THAT THE DEFENDANTS' ACTIONS HAD IN ANY
DEGREE CONTRIBUTED TO A RISE IN GASOLINE PRICES.  THE DEFENDANTS
INSISTED THAT THE TEST WAS THE EFFECT OF THEIR COMBINATION UPON
COMPETITION, AND THAT THEY COULD NOT BE CONVICTED UNLESS THE JURY FOUND
THAT THEIR AGREEMENT, AND THEIR CONDUCT PURSUANT THERETO, UNREASONABLY
RESTRAINED COMPETITION IN INTERSTATE COMMERCE. 

THERE WAS SUBSTANTIAL EVIDENCE THAT ALL THE DEFENDANTS AGREED TO, OR
DID, WAS TO ACT IN CONCERT TO ELIMINATE DISTRESS GASOLINE; THAT SUCH
GASOLINE WAS A COMPETITIVE EVIL IN THAT IT TENDED TO IMPAIR OR DESTROY
NORMAL COMPETITION.  THERE WAS SUBSTANTIAL EVIDENCE THAT WHAT THEY
AGREED TO, AND DID, NEITHER FIXED NOR CONTROLLED PRICES NOR
UNREASONABLY AFFECTED NORMAL COMPETITION AND THAT THEIR CONDUCT
AFFECTED PRICES ONLY IN THE SENSE THAT THE PURCHASE OF DISTRESS
GASOLINE AT GOING PRICES PERMITTED PRICES TO RISE TO A NORMAL
COMPETITIVE LEVEL.  THERE WAS NO EVIDENCE THAT, AS CHARGED IN THE
INDICTMENT, THEY AGREED TO, OR IN FACT DID, FIX PRICES.  THE COURT OF
APPEALS, AS I THINK, CORRECTLY HELD "THAT THE SUBSTANCE OF WHAT WAS
ACCOMPLISHED AND AGREED ON WAS THAT THE MAJOR COMPANIES WOULD PURCHASE
FROM THE INDEPENDENT REFINERS THE LATTER'S SURPLUS GASOLINE AT GOING
MARKET PRICES."    I THINK THE DEFENDANTS WERE ENTITLED TO HAVE THE
JURY CHARGED THAT, IN ORDER TO CONVICT THEM, THE JURY MUST FIND THAT,
ALTHOUGH DEFENDANTS KNEW THE RESULT OF THEIR ACTIVITIES WOULD BE A RISE
IN THE LEVEL OF PRICES, NEVERTHELESS, IF WHAT THEY AGREED TO DO, AND
DID, HAD NO SUBSTANTIAL TENDENCY TO RESTRAIN COMPETITION IN INTERSTATE
COMMERCE IN TRANSACTIONS IN GASOLINE THE VERDICT SHOULD BE NOT GUILTY. 

AS HAS BEEN POINTED OUT BY THIS COURT, VIOLATION OF THE ANTITRUST ACT
DEPENDS UPON THE CIRCUMSTANCES OF INDIVIDUAL CASES.  FN3  IT IS ALWAYS
POSSIBLE TO DISTINGUISH EARLIER DECISIONS BY REFERENCE TO THE FACTS
INVOLVED IN THEM BUT, IN THE COURSE OF DECISION IN THIS COURT, CERTAIN
PRINCIPLES HAVE BEEN LAID DOWN TO WHICH, I THINK, THE CHARGE OF THE
COURT RAN COUNTER. 

ONE OF THESE FIRMLY ESTABLISHED PRINCIPLES IS THAT CONCERTED ACTION
TO REMOVE A HARMFUL AND DESTRUCTIVE PRACTICE IN AN INDUSTRY, EVEN
THOUGH SUCH REMOVAL MAY HAVE THE EFFECT OF RAISING THE PRICE LEVEL, IS
NOT OFFENSIVE TO THE SHERMAN ACT IF IT IS NOT INTENDED AND DOES NOT
OPERATE UNREASONABLY TO RESTRAIN INTERSTATE COMMERCE; AND SUCH ACTION
HAS BEEN HELD NOT UNREASONABLY TO RESTRAIN COMMERCE IF, AS HERE, IT
INVOLVES NO AGREEMENT FOR UNIFORM PRICES BUT LEAVES THE DEFENDANTS FREE
TO COMPETE WITH EACH OTHER IN THE MATTER OF PRICE.  FN4 

NO CASE DECIDED BY THIS COURT HAS HELD A COMBINATION ILLEGAL SOLELY
BECAUSE ITS PURPOSE OR EFFECT WAS TO RAISE PRICES.  THE CRITERION OF
LEGALITY HAS ALWAYS BEEN THE PURPOSE OR EFFECT OF THE COMBINATION
UNDULY TO RESTRAIN COMMERCE. 

I THINK APPALACHIAN COALS, INC. V. UNITED STATES, 288 U.S. 344, A
CONTROLLING AUTHORITY SUSTAINING THE DEFENDANTS' CONTENTION THAT THE
CHARGE FORECLOSED A DEFENSE AVAILABLE TO THEM UNDER THE SHERMAN ACT. 
IT IS SAID THAT THEIR COMBINATION HAD THE PURPOSE AND EFFECT OF PUTTING
A FLOOR UNDER THE SPOT MARKET FOR GASOLINE.  BUT THAT WAS PRECISELY THE
PURPOSE AND EFFECT OF THE PLAN IN THE APPALACHIAN CASE.  TRUE, THE
MEANS ADOPTED TO OVERCOME THE EFFECT OF THE DUMPING OF DISTRESS
PRODUCTS ON THE MARKET WERE NOT THE SAME IN THE TWO CASES, BUT MEANS
ARE UNIMPORTANT PROVIDED PURPOSE AND EFFECT ARE LAWFUL. 

ETHYL GASOLINE CORP. V. UNITED STATES, 309 U.S. 436, IS RELIED UPON,
BUT, IN THAT CASE, AS IN UNITED STATES V. TRENTON POTTERIES CO., 273
U.S. 392, MAINTENANCE OF PRICES FIXED BY AGREEMENT WAS INVOLVED.  SO
ALSO IN SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553, CONDEMNED
FEATURES OF THE COMMON PLAN HAD TO DO WITH THE MAINTENANCE OF ANNOUNCED
PRICES AND THE ABSTINENCE FROM SELLING CERTAIN SORTS OF SUGAR.  THE
COMBINATIONS OR AGREEMENTS IN THESE CASES SPECIFICALLY PREVENTED
COMPETITIVE PRICING OR TOOK A COMMODITY OUT OF COMPETITION.  THIS IS
NOT SUCH A CASE. 

AS I THINK, THE ERROR IN THE COURT'S CHARGE IS WELL ILLUSTRATED BY
THE FOLLOWING INSTRUCTION: 

"IF YOU SHOULD FIND THAT THE DEFENDANTS ACTING TOGETHER, AND THOSE
INDEPENDENT REFINERS ACTING IN CONCERT WITH THEM, DID NOT HAVE THE
POWER TO RAISE THE LEVEL OF SPOT MARKET PRICES IN THE SPOT MARKETS
REFERRED TO IN THE INDICTMENT, OR THAT THEY DID NOT COMBINE FOR THAT
PURPOSE, AND IF YOU SHOULD FIND ALSO THAT THE PURCHASE OF THE SAID
GASOLINE BY THE DEFENDANTS AFFECTED THE SPOT MARKET PRICES ONLY
INDIRECTLY AND INCIDENTALLY, THEN YOU MAY CONSIDER ALL THE
CIRCUMSTANCES SURROUNDING THE ACTIVITIES OF THE DEFENDANTS TO DETERMINE
WHETHER THEY WERE INTENDED TO AND DID MERELY ELIMINATE ABUSES WHICH
TENDED TO PRODUCE DESTRUCTIVE COMPETITION AND RESTORE COMPETITION TO A
FAIRER BASE AND PRODUCE FAIRER PRICE LEVELS.  IN SUCH EVENT, YOU MAY
CONCLUDE THAT THE PURCHASE OF SUCH GASOLINE IN THE MANNER SHOWN BY THE
EVIDENCE WAS REASONABLE AND BENEFICIAL AND NOT INJURIOUS TO THE PUBLIC
INTEREST AND THAT, THEREFORE, THE RESTRAINT OF TRADE WAS NOT UNDUE, AND
NOT ILLEGAL, AND YOU MAY ACQUIT THE DEFENDANTS."  (ITALICS SUPPLIED.) 

THIS WAS TO TELL THE JURY THAT, IF THEY FOUND THE COMBINATION HAD
POWER AND PURPOSE TO RAISE THE GENERAL LEVEL OF PRICES, THEY SHOULD
CONVICT WITHOUT CONSIDERING WHETHER THE DEFENDANTS' CONCERT OF ACTION
WAS INTENDED MERELY TO REMOVE A SOURCE OF DESTRUCTIVE COMPETITION, AND
WITHOUT CONSIDERING WHETHER, AS DEFENDANTS CONTENDED AND SOUGHT TO
PROVE, OTHER FACTORS IN THE INDUSTRY, OVER WHICH THEY HAD NO CONTROL,
LIMITED THEIR POWER TO RAISE PRICES BEYOND A LEVEL WHICH WOULD BE THE
NORMAL RESULT OF THE REMOVAL OF THE ABUSES ENGENDERED BY THE DUMPING OF
DISTRESS GASOLINE. 

I THINK THAT THE CLOSING ADDRESS OF COUNSEL FOR THE GOVERNMENT IS
GROUND FOR SETTING ASIDE THE VERDICT. 

IT IS TRUE THAT TO MUCH THAT WAS OBJECTIONABLE IN THAT ADDRESS THE
DEFENDANTS DID NOT OBJECT OR, IF THEY DID, FAILED TO EXCEPT.  HOWEVER,
THEY ASSIGNED ERROR TO THE WHOLE OF IT AND EXCEPTED TO SOME OF THE MORE
EGREGIOUS VIOLATIONS OF THE CANONS OF FAIR COMMENT.  I AM OF OPINION
THAT A SITUATION IS PRESENTED, WHICH REGARDLESS OF THE TECHNICALITIES
OF PROCEDURE, REQUIRES ACTION BY AN APPELLATE COURT.  BUT, IN ANY
EVENT, PORTIONS WHICH ARE THE SUBJECT OF EXCEPTION ALONE REQUIRE A
REVERSAL OF THE JUDGMENT. 

THE FINAL AND CLOSING ADDRESS COVERS TWENTY-EIGHT PAGES OF THE
RECORD.  ABOUT FIVE REFER TO THE FACTS IN THE CASE.  THE BALANCE
CONSISTS LARGELY OF WHAT THE SPEAKER HIMSELF CHARACTERIZED AS
"CLOWNING" AND PERSONAL REFERENCES TO COUNSEL, PARTIES, THE COURT, AND
OTHER SUBJECTS, THE OBJECT OF WHICH APPARENTLY WAS TO DISTRACT
ATTENTION FROM THE ISSUES. 

AT MANY POINTS COUNSEL SHOULD HAVE BEEN STOPPED BY THE COURT AND
WARNED AGAINST CONTINUANCE OF SUCH TACTICS. 

THE CIRCUIT COURT OF APPEALS SAID AS TO THIS MATTER: 

"THE GOVERNMENT DOES NOT UNDERTAKE TO JUSTIFY MUCH OF THE ARGUMENT
AND MISCONDUCT COMPLAINED OF, BUT IT EARNESTLY INSISTS THAT ANY ERROR
COMMITTED IS NOT OF A REVERSIBLE NATURE.  AS THE CASE IS TO BE
REVERSED, THERE SEEMS NO OCCASION FOR US TO MAKE A DETERMINATION IN
THIS RESPECT.  WE SHALL MERELY EXPRESS THE OPINION THAT SOME OF THE
ARGUMENT COMPLAINED OF WAS HIGHLY IMPROPER AND THAT, TAKEN IN
CONNECTION WITH THE MISUSE OF THE GRAND JURY TESTIMONY, HERETOFORE
DISCUSSED, WOULD PRESENT A VERY SERIOUS OBSTACLE TO THE AFFIRMANCE OF
THE JUDGMENT." 

I SHALL NOT QUOTE THOSE PORTIONS OF THE ADDRESS WHICH ARE QUOTED OR
SUMMARIZED IN THE OPINION OF THE COURT.  IT WILL SUFFICE TO MAKE ADDED
REFERENCE TO SEVERAL PORTIONS. 

ONE OF THE MOST REPREHENSIBLE THINGS A PROSECUTOR CAN DO IS TO
ATTEMPT TO PUT INTO EVIDENCE BEFORE THE JURY HIS OWN, AND HIS
COLLEAGUES', OPINION AS TO THE GUILT OF THE DEFENDANTS HE IS
PROSECUTING.  SUCH A PRACTICE BRINGS BEFORE THE JURY THE UNSWORN
TESTIMONY OF A SWORN OFFICER OF THE GOVERNMENT.  THIS FACT LENDS IT
UNDUE AND IMPROPER WEIGHT AND INJECTS AN ELEMENT INTO THE CASE WHICH IS
SO INSIDIOUS AND SO IMPOSSIBLE TO COUNTERACT THAT TRIAL JUDGES, IN MY
EXPERIENCE, HAVE NEVER HESITATED TO WITHDRAW A JUROR AND DECLARE A
MISTRIAL BECAUSE OF THIS VIOLATION OF THE CANONS. 

IN THE CLOSING ADDRESS COUNSEL SAID TO THE JURY: 

"NOW, IF ANYBODY DOUBTS, IF ANYBODY HAS THE LEAST SHADOW OF A DOUBT
ABOUT THE FACT THAT THESE MEN (REFERRING TO GOVERNMENT COUNSEL) BELIEVE
TO THE BOTTOM OF THEIR HEARTS IN THE JUSTICE OF THE CAUSE THAT THEY
ESPOUSE HERE, I CAN DISABUSE THEIR MINDS OF THAT DOUBT AT ANY TIME. 
THEY HAVE BEEN AGGRESSIVE, AND THEY HAVE BEEN FORCEFUL; THEIR MOVEMENTS
HERE HAVE BEEN INTELLIGENT, WELL-TIMED; AND, AS I SAID, THEY HAVE COME
INTO THIS COURT ROOM MORNING AFTER MORNING, WORN AND TIRED ALMOST TO
THE BREAKING POINT.  AND IT SEEMED TO ME THAT, I SOME TIMES GOT THE
FEELING, COMING AS THEY DID THEN BEFORE YOU TO PRESENT THIS EVIDENCE
AND THIS CASE, THEY WERE SOMETHING LIKE THE CRUSADERS OF OLD, SAYING
'GOD WILLS IT, GOD WILLS IT.'" 

OBJECTION WAS NOT MADE BY COUNSEL FOR THE DEFENDANTS AT THE TIME OF
THIS STATEMENT BUT WHEN A SOMEWHAT SIMILAR STATEMENT WAS MADE A FEW
MOMENTS LATER OBJECTION WAS NOTED AND EXCEPTION TAKEN.  I THINK,
HOWEVER, THAT THE OFFENSE WAS SO FLAGRANT THAT THE COURT ITSELF SHOULD
HAVE INTERVENED IRRESPECTIVE OF ANY OBJECTION. 

A LITTLE LATER THESE STATEMENTS OCCURRED: 

"NOW, JUST BETWEEN YOURSELVES, DO YOU HONESTLY THINK THAT THESE BOYS
HERE (INDICATING COUNSEL AT GOVERNMENT TABLE) FIRED WITH THE ENTHUSIASM
OF CRUSADERS, AS I SAY, AND HAVING GIVEN TO THIS CASE EVERY OUNCE OF
MENTAL AND PHYSICAL STRENGTH THEY HAVE, AND I MYSELF HAVE CONTRIBUTED,
ALSO, WOULD BE TRYING TO CONVICT THESE MEN UNLESS THAT WAS THE WISH AND
THE DESIRE OF THE HIGHEST OFFICIALS IN THE GOVERNMENT OF THE UNITED
STATES?" 

AFTER OBJECTION AND EXCEPTION COUNSEL CONTINUED AS FOLLOWS: 

"NOW, JUST WHAT DO YOU THINK ABOUT IT?  DO YOU THINK THESE ARE THREE
OR FOUR OR FIVE OF THESE YOUNG FELLOWS, AS THEY HAVE BEEN CALLING THEM,
JUST STARTING OUT ON THEIR OWN, RUNNING HOG-WILD?  THESE ARE IMPORTANT
MEN.  I PRESUME YOU ALL KNOW THEY ARE ENGAGED IN A VERY IMPORTANT
BUSINESS, A BUSINESS, THE OPERATION OF WHICH IS ALMOST A NECESSITY IN
THIS COUNTRY TODAY.  YOU DON'T THINK THE GOVERNMENT OF THE UNITED
STATES WOULD ALLOW FOUR OR FIVE LAWYERS TO COME OUT HERE AND PROSECUTE
THIS CASE AGAINST THEM, AGAINST THEIR WISHES, OR THAT THE SECRETARY OF
THE DEPARTMENT OF THE INTERIOR WOULD ALLOW US TO DO IT, IF HE DIDN'T
WANT IT DONE?  AND IF HE WANTED IT DONE IT WAS BECAUSE HE BELIEVED, AS
DID THE OTHER MEN IN WASHINGTON, THAT THERE WAS A VIOLATION OF LAW
HERE, SO OUTSTANDING AND SO WITHERING AND FAR-REACHING IN ITS EFFECT
THAT SOMETHING OUGHT TO BE DONE TO STOP IT; AND BY THAT TO TELL THE
PEOPLE OF THIS COUNTRY THAT YOU CAN'T DO THESE THINGS AND GET AWAY WITH
IT." 

AGAIN THERE WAS OBJECTION AND EXCEPTION. 

COUNSEL DID NOT CONFINE HIMSELF TO TESTIMONY AS TO THE PROSECUTORS'
BELIEF IN THE DEFENDANTS' GUILT BUT, IN ATTACKING THE CREDIBILITY OF AN
IMPORTANT WITNESS FOR DEFENDANTS, ESSAYED TO CONTRADICT THAT TESTIMONY
BY A STATEMENT OF COUNSEL'S OWN KNOWLEDGE OF FACTS.  THE QUOTATION FROM
THE ADDRESS WILL MAKE THE MATTER CLEAR: 

"I WANT TO REFER IN A MOMENT TO SOMETHING THAT MADE AN IMPRESSION ON
ME. 

"YOU KNOW, WE LAWYERS HAVE TO DEPEND - MOST OF US ARE KIND OF TOUGH
GUYS.  WE HAVE OUR OWN WAY OF TALKING ABOUT WITNESSES.  AND ONE THING
THAT WE VERY OFTEN SAY AND TALK ABOUT IS THE THREE CLASSES OF LIARS. 
THERE IS THE PLAIN LIAR, THE DAMN LIAR, AND THE EXPERT WITNESS.  AND OF
ALL OF THEM, THE EXPERT WITNESS IS THE WORST. 

"THERE WERE A FEW OF THEM HERE.  THERE WAS SWENSRUD, THE
REPRESENTATIVE OF THE STANDARD OF OHIO; THERE WAS VAN COVERN, AND I
THINK THERE WAS ANOTHER ONE. 

"BUT I JUST DIDN'T THINK MUCH OF SWENSRUD'S WHOLE TESTIMONY,
ESPECIALLY AFTER I FOUND OUT THAT HE WAS GIVING TESTIMONY THAT THEY
COULD SHIP GASOLINE IN 1935 AND 1936 UP THE MISSISSIPPI RIVER TO ST.
PAUL.  I HAPPEN TO BE AROUND THE MISSISSIPPI RIVER QUITE A LITTLE, AND
KNOW QUITE A LOT ABOUT IT.  IN 1935 AND 1936, YOU COULDN'T GET A
ROWBOAT UP THE MISSISSIPPI RIVER, NORTH OF WINONA - BECAUSE THE
GOVERNMENT WAS PUTTING IN THESE DAMS FOR THE PURPOSE OF CREATING THE
NINE-FOOT CHANNEL THAT YOU HAVE READ SO MUCH ABOUT.  THEY HAD CONCRETE
CLEAR ACROSS THE RIVER, SPACED IN SO MANY WAYS, THAT, AS I SAY, YOU
JUST COULDN'T GET A ROWBOAT UP THERE.  WHEN SWENSRUD TALKED ABOUT
GASOLINE GOING UP THAT RIVER, WHERE I KNEW, BECAUSE I LIVED THERE AND
WAS AROUND THERE, THAT IT COULDN'T BE DONE, I JUST THOUGHT - ." 

AFTER OBJECTION AND A REQUEST THAT THE COURT DIRECT THE JURY TO
DISREGARD THE STATEMENT THE COURT RULED: 

"THE JURY MAY DISREGARD IT.  I DIDN'T HEAR IT.  I WAS THINKING ABOUT
SOMETHING ELSE." 

THEREUPON COUNSEL RESUMED AS FOLLOWS: 

"NOW, IF YOU WILL LET ME ALONE A FEW MINUTES, I WILL BE THROUGH.  IF
YOU DON'T, LIKE 'OLD MAN RIVER,' I WILL JUST KEEP ROLLING ALONG.  I
DON'T WANT TO DO THAT. 

"NOW I WAS REFERRING TO THESE WITNESSES WHO KNEW SO MUCH.  THERE WAS
VAN COVERN, SWENSRUD, AND A FELLOW NAMED J. D. MILLER.  HE WAS THE
FELLOW WHO NEVER LOOKED AT ANYBODY, SO YOU COULD CATCH HIS EYE.  THEY
KNEW SO MUCH, IN THE WAY THEY WERE TELLING IT TO YOU, THAT IT IS
IMPOSSIBLE, JUST IMPOSSIBLE TO BELIEVE THAT THEY COULD KNOW AS MUCH AS
THEY SAID THEY DID ABOUT IT.  THEY JUST COVERED TOO MUCH TERRITORY.  I
THINK ALL HISTORY, SACRED AND PROFANE, GIVES US BUT ONE SINGLE EXAMPLE
OF A PERSON WHO KNEW EVERYTHING - AND HE WAS NOT ONLY A MAN, BUT HE WAS
GOD.  AND HE GAVE UP HIS LIFE IN A SHAMEFUL DEATH, UPON THE CROSS,
BETWEEN TWO THIEVES." 

     .         .     .         .         . 

IT IS TRUE THAT NO FORMAL EXCEPTION WAS TAKEN BUT THE MATTER WAS
HIGHLY PREJUDICIAL.  THE COURT SHOULD HAVE DEALT WITH IT IN SOME
DEFINITE AND POSITIVE WAY, WHICH HE OMITTED TO DO. 

CONSIDERING WHAT IS SET OUT IN THE OPINION OF THIS COURT, AND THE
ADDITIONAL REFERENCES I HAVE MADE TO THE ADDRESS, I AM OF OPINION THAT
COUNSEL'S ARGUMENT WAS HIGHLY IMPROPER, AS INDEED THE GOVERNMENT
ADMITS, AND, FURTHER, THAT IT WAS HIGHLY PREJUDICIAL.  I DO NOT THINK
THE COURT TOOK PROPER MEANS TO COUNTERACT THE IMPROPRIETY AND PREJUDICE
THUS CREATED AND I THINK THE ONLY REMEDY AVAILABLE IS TO SET ASIDE A
VERDICT ENSUING UPON SUCH MISCONDUCT.  COMPARE BERGER V. UNITED STATES,
295 U.S. 78, 85, 88, 89. 

FN1  THE FORM AND USE OF THIS CONTRACT IS DESCRIBED IN PARAGRAPH 11
OF THE INDICTMENT. 

FN2  LONABAUGH V. UNITED STATES, 179 F. 476; UNITED STATES V. BLACK,
160 F. 431; ROSE V. ST. CLAIR, 28 F.2D 189. 

FN3  SEE MAPLE FLOORING MFRS.  ASSN.  V. UNITED STATES, 268 U.S. 563,
579. 

FN4  UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 178, 180;
UNITED STATES V. UNION PACIFIC R. CO., 226 U.S. 61, 84-85; AMERICAN
COLUMN & LUMBER CO. V. UNITED STATES, 257 U.S. 377, 400, 417; MAPLE
FLOORING MFRS.  ASSN.  V. UNITED STATES, 268 U.S. 563, 568; APPALACHIAN
COALS, INC. V. UNITED STATES, 288 U.S. 344, 362-3, 373-4; SUGAR
INSTITUTE V. UNITED STATES, 297 U.S. 553, 597-8.    MR. JUSTICE
MCREYNOLDS CONCURS IN THIS OPINION. 
..END :







PERKINS V. LUKENS STEEL CO., 310 U.S. 113 


NO. 593.  ARGUED APRIL 3, 1940.  - DECIDED APRIL 29, 1940.  - 70 APP.
D.C. 354 - 107 F.2D 627, REVERSED. 


THE PUBLIC CONTRACTS ACT OF JUNE 30, 1936, REQUIRES THAT ALL CONTRACTS
WITH THE UNITED STATES FOR THE MANUFACTURE OR FURNISHING OF MATERIALS
(IN AMOUNTS EXCEEDING $10,000) SHALL INCLUDE A STIPULATION THAT ALL
PERSONS EMPLOYED BY THE CONTRACTOR IN THE MANUFACTURE OR FURNISHING OF
SUCH MATERIALS WILL BE PAID NOT LESS THAN THE PREVAILING MINIMUM WAGES
"AS DETERMINED BY THE SECRETARY OF LABOR  ...  FOR PERSONS EMPLOYED
...  IN THE PARTICULAR OR SIMILAR INDUSTRIES  ...  IN THE LOCALITY." 
PRODUCERS OF IRON AND STEEL SOUGHT TO ENJOIN THE SECRETARY OF LABOR,
AND OTHER OFFICIALS AND AGENTS AUTHORIZED TO MAKE PURCHASES FOR THE
GOVERNMENT, FROM CONTINUING IN EFFECT A WAGE DETERMINATION MADE BY THE
SECRETARY FOR THAT INDUSTRY.  COMPLAINANTS ASSERTED THAT THE
CONSTRUCTION GIVEN BY THE SECRETARY TO THE TERM "LOCALITY" WAS
ARBITRARY, CAPRICIOUS, AND UNAUTHORIZED BY LAW; AND THAT IF IN ORDER TO
BID ON GOVERNMENT CONTRACTS THEY MUST ABIDE BY THE WAGE DETERMINATION
THUS MADE, THEY WOULD SUFFER IRREPARABLE LOSS AND DAMAGE, FOR WHICH
THERE WAS NO PLAIN, ADEQUATE AND COMPLETE REMEDY AT LAW.  HELD, THAT
THE COMPLAINANTS WERE WITHOUT STANDING TO MAINTAIN THE SUIT.  P. 125. 

1.  THE BILL FAILED TO SHOW THAT ANY LEGAL RIGHTS OF THE COMPLAINANTS
WERE INVADED OR THREATENED.  P. 125. 

2.  IN THE ABSENCE OF STATUTE, DAMAGE RESULTING FROM ACTION BY THE
GOVERNMENT WHICH DOES NOT INVADE ANY RECOGNIZED LEGAL RIGHT IS
IRREMEDIABLE.  P. 125. 

3. THAT THE SECRETARY OF LABOR IS CHARGED WITH AN ERRONEOUS
INTERPRETATION OF THE TERM "LOCALITY" IN MAKING THE WAGE DETERMINATION,
IS NO BASIS FOR THE SUIT.  P. 125. 

4.  COMPLAINANTS ARE NOT ENTITLED TO VINDICATE ANY GENERAL INTEREST
WHICH THE PUBLIC MAY HAVE IN THE SECRETARY'S CONSTRUCTION OR
ADMINISTRATION OF THE ACT.  P. 125. 

5.  NEITHER R.S. SEC. 3709, REQUIRING ADVERTISING FOR PROPOSALS IN
RESPECT OF GOVERNMENT PURCHASES AND CONTRACTS, NOR THE PUBLIC CONTRACTS
ACT ITSELF, AFFORDS ANY BASIS FOR THE SUIT.  P. 126. 

6.  THE ACT DOES NOT PROVIDE FOR JUDICIAL REVIEW OF WAGE
DETERMINATIONS.  P. 128. 

7.  THE ACT VESTS NO RIGHT IN PROSPECTIVE BIDDERS.  P. 127. 

8.  CONGRESS HAS NOT BY THE ACT EXERCISED ANY REGULATORY POWER OVER
PRIVATE BUSINESS OR EMPLOYMENT; AND CASES INVOLVING GOVERNMENTAL
REGULATION OF PRIVATE BUSINESS ARE DISTINGUISHABLE.  P. 128. 

9.  THE DEFENDANTS HAVE NOT TORTIOUSLY INVADED PRIVATE RIGHTS.  P.
129. 

10.  COMPLAINANTS WERE NOT ENTITLED TO A DECLARATORY JUDGMENT.  P.
132. 

11.  THE CONCLUSION THAT THE COMPLAINANTS LACK STANDING TO SUE IS
BASED UPON PRINCIPLES IMPLICIT IN THE CONSTITUTIONAL DIVISION OF
AUTHORITY IN OUR SYSTEM OF GOVERNMENT AND THE IMPROPRIETY OF JUDICIAL
INTERPRETATIONS OF LAW AT THE INSTANCE OF THOSE WHO SHOW NO MORE THAN A
POSSIBLE INJURY TO THE PUBLIC.  P. 132. 

PERKINS, SECRETARY OF LABOR, ET AL. V. LUKENS STEEL CO. ET AL. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 309 U.S. 643, TO REVIEW THE REVERSAL OF AN ORDER OF THE
DISTRICT COURT DISMISSING A BILL IN EQUITY. 

RESPONDENTS' RIGHT TO BID AND NEGOTIATE FOR GOVERNMENT CONTRACTS AND
TO CONDUCT THEIR BUSINESS RELATIONS WITH THE GOVERNMENT FREE FROM
ILLEGAL INTERFERENCE HAS BEEN UNLAWFULLY INVADED, AND IS FURTHER
THREATENED, BY THE UNLAWFUL ACTION OF PETITIONERS.  THEY HAVE STANDING
TO SUE TO PROTECT SUCH RIGHT AND SUCH BUSINESS RELATIONS. 

THE RIGHT ASSERTED IS SUBJECT TO CONDITIONS IMPOSED OR AUTHORIZED BY
CONGRESS; BUT NOT TO UNLAWFUL INTERFERENCE BY THIRD PARTIES, INCLUDING
PUBLIC OFFICERS ACTING OUTSIDE THE SCOPE OF THEIR AUTHORITY. 

EVERY PERSON HAS THE RIGHT TO CONDUCT A LEGITIMATE BUSINESS AND TO
SEEK TO SELL THE PRODUCTS OR SERVICES OF THAT BUSINESS, FREE FROM
UNJUSTIFIABLE INTERFERENCE, RESTRAINT OR COERCION BY OTHERS.  THE LAW
HAS SEDULOUSLY PROTECTED THAT RIGHT FOR CENTURIES. 

THE GOVERNMENT HAS BEEN A CUSTOMER FOR MANY YEARS OF ALL RESPONDENTS
SAVE ONE, AND, AT THE DATE OF INSTITUTION OF SUIT, WAS NOT ONLY A PARTY
TO CONTRACTS WITH SEVERAL, BUT A PROSPECTIVE CUSTOMER OF ALL. 

THE RIGHT ASSERTED BY RESPONDENTS IS RECOGNIZED BY R.S. SEC. 3709. 
THE PUBLIC CONTRACTS ACT EMPHASIZES THE IMPLICATIONS OF R.S. SEC.
3709.  BY THAT ACT, CONGRESS SO PREEMPTED THE FIELD OF WAGE PROVISIONS
IN GOVERNMENT SUPPLY CONTRACTS AS CLEARLY TO PROHIBIT OFFICERS FROM
INSERTING IN SUCH CONTRACTS ANY WAGE PROVISIONS UNAUTHORIZED BY THE
ACT. 

RESPONDENTS DO NOT ASSERT THE RIGHT TO GOVERNMENT CONTRACTS IF LOWEST
RESPONSIBLE BIDDERS.  THEY DO ASSERT THE RIGHT TO BID WITHOUT BEING
REQUIRED TO AGREE THAT THEY WILL COMPLY WITH THE DETERMINATION. 

WHETHER THE DETERMINATION BE REVIEWABLE UNDER SEC. 5 OF THE ACT OR ON
GENERAL EQUITABLE PRINCIPLES, THE COURT MAY DETERMINE WHETHER
PETITIONERS ARE EXCEEDING THEIR STATUTORY AUTHORITY IN ATTEMPTING TO
ENFORCE THE DETERMINATION AGAINST RESPONDENTS AND WHETHER THE
DETERMINATION IS ARBITRARY AND CAPRICIOUS. 

IT IS IMMATERIAL WHETHER THE ACTS OF PETITIONERS INVOLVE "REGULATORY"
OR "NON-REGULATORY" FUNCTIONS, SINCE IN EITHER CASE THE SUIT IS NOT ONE
AGAINST THE UNITED STATES. 

IN A SUIT FOR INJUNCTIVE RELIEF TO PREVENT UNLAWFUL INTERFERENCE WITH
BUSINESS RELATIONS OR PROSPECTIVE CUSTOMERS, IT HAS NEVER BEEN SUPPOSED
THAT THE PLAINTIFF MUST SHOW OF A CERTAINTY THAT, EXCEPT FOR THE
UNLAWFUL INTERFERENCE, THE BUSINESS RELATIONS WOULD RIPEN INTO
PROFITABLE CONTRACTS OR THE PROSPECTIVE CUSTOMERS WOULD BECOME CERTAIN
PURCHASERS AT PROFITABLE PRICES.  IT IS SUFFICIENT THAT THE PLAINTIFF
SHOW A REASONABLE PROBABILITY OF IRREPARABLE INJURY FROM THE UNLAWFUL
INTERFERENCE. 

THE COURT BELOW CORRECTLY HELD THAT RESPONDENTS ARE ENTITLED TO A
DECLARATORY JUDGMENT DECLARING THE INVALIDITY OF THE DETERMINATION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN EXERCISE OF ITS AUTHORITY TO DETERMINE CONDITIONS UNDER WHICH
PURCHASES OF GOVERNMENT SUPPLIES SHALL BE MADE, CONGRESS PASSED THE
PUBLIC CONTRACTS ACT OF JUNE 30, 1936.  FN1  BY VIRTUE OF THAT ACT,
SELLERS MUST AGREE TO PAY EMPLOYEES ENGAGED IN PRODUCING GOODS SO
PURCHASED "NOT LESS THAN THE MINIMUM WAGES AS DETERMINED BY THE
SECRETARY OF LABOR TO BE THE PREVAILING MINIMUM WAGES FOR PERSONS
EMPLOYED ON SIMILAR WORK OR IN THE PARTICULAR OR SIMILAR INDUSTRIES OR
GROUPS OF INDUSTRIES CURRENTLY OPERATING IN THE LOCALITY IN WHICH  ...
THE SUPPLIES  ...  ARE TO BE MANUFACTURED OR FURNISHED UNDER SAID
CONTRACT."  THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA HAS HELD
THAT THE SECRETARY ERRONEOUSLY CONSTRUED THE TERM "LOCALITY" TO INCLUDE
A LARGER GEOGRAPHICAL AREA THAN THE ACT CONTEMPLATES, AND HAS ORDERED
SIX MEMBERS OF THE CABINET INCLUDING THE SECRETARY OF LABOR, THE
DIRECTOR OF PROCUREMENT AND ALL OTHER OFFICIALS RESPONSIBLE FOR
PURCHASES NECESSARY IN THE OPERATION OF THE FEDERAL GOVERNMENT, NOT TO
ABIDE BY OR GIVE EFFECT TO THE WAGE DETERMINATION MADE BY THE SECRETARY
FOR THE IRON AND STEEL INDUSTRY EITHER AS TO THE COMPLAINING COMPANIES
OR ANY OTHERS.  IN THIS VITAL INDUSTRY, BY ACTION OF THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA, THE ACT HAS BEEN SUSPENDED AND
INOPERATIVE FOR MORE THAN A YEAR. 

WE MUST, THEREFORE, DECIDE WHETHER A FEDERAL COURT, UPON COMPLAINT OF
INDIVIDUAL IRON AND STEEL MANUFACTURERS, MAY RESTRAIN THE SECRETARY AND
OFFICIALS WHO DO THE GOVERNMENT'S PURCHASING FROM CARRYING OUT AN
ADMINISTRATIVE WAGE DETERMINATION BY THE SECRETARY, NOT MERELY AS
APPLIED TO PARTIES BEFORE THE COURT, BUT AS TO ALL OTHER MANUFACTURERS
IN THIS ENTIRE NATION-WIDE INDUSTRY.  INVOLVING, AS IT DOES, THE
MARKING OF BOUNDARIES OF PERMISSIBLE JUDICIAL INQUIRY INTO
ADMINISTRATIVE AND EXECUTIVE RESPONSIBILITIES, THIS PROBLEM CAN BEST BE
UNDERSTOOD AGAINST THE BACKGROUND OF WHAT TOOK PLACE BEFORE THE COURT
OF APPEALS FOR THE DISTRICT ACTED: 

JULY 11, 1938, ALL THE IRON AND STEEL COMPANIES IN THE UNITED STATES
WERE GIVEN NOTICE THAT THE SECRETARY CONTEMPLATED PROCEEDINGS FOR
DETERMINING THE MINIMUM PREVAILING WAGE FOR THEIR INDUSTRY.  ON THE
25TH AND 26TH OF THAT MONTH, HEARINGS WERE HAD BEFORE THE PUBLIC
CONTRACTS BOARD ALSO FUNCTIONING UNDER THE ACT.  MANY COMPANIES, AND
ALL OF THOSE INVOLVED HERE, WERE REPRESENTED IN THE HEARINGS. 
COMPANIES FROM THE ENTIRE UNITED STATES FILED BRIEFS AND SUBMITTED
INFORMATION AND SUGGESTIONS, AND THESE PRODUCERS WHO ARE PARTIES HERE
HAD NOTICE OF AND ACTIVELY PARTICIPATED IN THE VARIOUS STAGES OF THE
PROCEEDINGS.  AFTER THE HEARING, TIME FOR FILING OF BRIEFS WAS
ALLOWED.  FOLLOWING INVESTIGATION OF TESTIMONY, EXHIBITS, LETTERS,
TELEGRAMS, BRIEFS, DATA FROM THE BUREAU OF LABOR STATISTICS, AND
ARGUMENTS OF REPRESENTATIVES OF BOTH LABOR AND INDUSTRY ITSELF, THE
BOARD, OCTOBER 27, 1938, MADE ITS FINDINGS OF FACT, CONCLUSIONS AND
RECOMMENDATIONS: (A), ACCEPTING RECOMMENDATIONS OF INDUSTRY AND LABOR,
THE BOARD ADOPTED - WITH MINOR EXCEPTIONS - THE DEFINITION OF THE STEEL
INDUSTRY PREVIOUSLY IN EFFECT UNDER THE NATIONAL INDUSTRIAL RECOVERY
ACT; (B), "THE BASE RATES PAID TO THE WORKERS CLASSIFIED AS COMMON
LABORERS" WERE UTILIZED AS A BASIS FOR FINDING THE MINIMUM WAGE
PREVAILING IN THE INDUSTRY AND A COMMON LABORER WAS DEFINED AS "ONE WHO
PERFORMS PHYSICAL OR MANUAL LABOR OF A GENERAL CHARACTER AND SIMPLE
NATURE, REQUIRING NO SPECIAL TRAINING, JUDGMENT NOR SKILL"; (C), THE
VIEW THAT MUNICIPALITIES BE TREATED AS THE GEOGRAPHICAL LIMIT OF A
"LOCALITY" AND THAT DIFFERENT MINIMUM PREVAILING WAGE STANDARDS BE
ADOPTED FOR SMALL AS DISTINGUISHED FROM LARGER COMPANIES, WAS
REJECTED.  THE BOARD POINTED OUT THAT "THE MAIN CHANNELS OF TRADE IN
THE INDUSTRY TAKE THEIR COURSE FAR BEYOND THE CONFINES OF LOCAL
PRODUCING AREAS"; THAT "CONVENTIONAL MEASUREMENT OF MILES ON THE MAP TO
OUTLINE THE MARKETING AREAS OF THE IRON AND STEEL PRODUCERS" WAS
UNSUITABLE; THAT "GEOGRAPHIC LOCATION DOES NOT LIMIT THE EFFORTS OF
IRON AND STEEL MANUFACTURERS TO SECURE GOVERNMENT BUSINESS"; THAT "THE
WORKERS BEING PAID WAGES BELOW THE BASE RATES ARE EMPLOYED IN LARGE,
MEDIUM AND SMALL SIZE COMPANIES AND IN PLANTS LOCATED IN ALL PARTS OF
THE COUNTRY"; AND THAT IN FIXING A "LOCALITY" ALL THESE FACTORS AS WELL
AS GEOGRAPHIC AND ECONOMIC CONSIDERATIONS WERE RELEVANT. 

THE MAJORITY OF THE BOARD SUGGESTED TWO LOCALITIES, ONE FOR THE
SOUTHERN STATES AND ANOTHER FOR THE REMAINDER OF THE STEEL PRODUCING
STATES.  ONE MEMBER DISAGREED AND INSISTED UPON FOUR LOCALITIES
THROUGHOUT THE NATION, BUT NOTED THAT "THE BOARD IS AGREED ON ALL THE
ESSENTIAL FACTS BEFORE IT IN THE CASE."  HE RECOGNIZED THAT "THE LAW
...  PERMITS THE DIVISION OF THE COUNTRY INTO LOCALITIES FOR THE
PURPOSE OF DETERMINING MINIMUM WAGES.  NO RULE IS LAID DOWN TO DEFINE
THE EXTENT OF ANY LOCALITIES  ...  A TOO MINUTE CONCEPT OF LOCALITY
WOULD OBVIOUSLY NULLIFY THE LAW, FOR EACH PLANT MUST NECESSARILY OCCUPY
A DIFFERENT LOCALE OR SITE FROM EVERY OTHER.  TO REDUCE THE
INTERPRETATION OF LOCALITY TO ITS MOST MINUTE POINT WOULD BE TO FIND A
MINIMUM WAGE PREVAILING IN EACH PLANT  ...  WHEN WE DEPART FROM THIS
INTERPRETATION WE ARE IMMEDIATELY THROWN UPON JUDGMENT.  ...  OBVIOUSLY
WE MUST LOOK FOR WAGE PATTERNS OR UNIFORMITIES.  ...  AGAIN JUDGMENT
MUST BE RELIED UPON FOR THE ANSWER."  EXCEPTING TO THE BOARD'S
RECOMMENDATIONS, THE COMPANIES NOW BEFORE THIS COURT URGED THAT THE
SECRETARY MAKE A FINDING OF MINIMUM PREVAILING WAGES WITH "LOCALITY"
GIVEN THE CONNOTATION OF A SUBDIVISION OF THE RESPECTIVE STATES AS
ORIGINALLY PROVIDED IN THE BACON-DAVIS ACT.  FN2 

ON DECEMBER 20, 1938, THE ASSISTANT SECRETARY OF LABOR, ACTING FOR
THE SECRETARY, HEARD ARGUMENTS AND RECEIVED BRIEFS BOTH FROM INDUSTRY
AND LABOR ORGANIZATIONS.  HE DID NOT ADOPT THE RECOMMENDATIONS OF THE
BOARD IN FULL, BUT INSTEAD DIVIDED THE INDUSTRY OF THE ENTIRE COUNTRY
INTO SIX "LOCALITIES," PROCEEDING, HOWEVER, UPON THE VIEW THAT TO
CONSTRUE "LOCALITY" TO MEAN SMALL POLITICAL DIVISIONS OF THE STATES, AS
THE BACON-DAVIS ACT HAD DONE IN EXPRESS TERMS, WOULD RENDER "EFFECTIVE
ADMINISTRATION OF THE ACT  ...  ALMOST IMPOSSIBLE."  IT WAS POINTED OUT
THAT "THIS NARROWLY RESTRICTED CONSTRUCTION OF THE WORD 'LOCALITY'  ...
IS CONTRARY TO THE ADMINISTRATIVE CONSTRUCTION CONSISTENTLY ADHERED TO
BY THE SECRETARY OF LABOR IN THE ADMINISTRATION OF THE ACT," AND THAT
WHILE CONGRESS HAD CLOSELY FOLLOWED THE LANGUAGE OF THE DAVIS-BACON ACT
IN SOME RESPECTS, IT HAD "CAREFULLY AVOIDED THE USE OF THE MORE
NARROWLY RESTRICTIVE LANGUAGE OF 'CITY, TOWN, VILLAGE OR OTHER CIVIL
SUBDIVISION.'"  IN THE TWENTY-TWO PRECEDING WAGE DETERMINATIONS UNDER
THIS ACT THE SECRETARY'S ADMINISTRATIVE CONSTRUCTION OF THE TERM HAD
BEEN - WITH A SOLE EXCEPTION - THAT OF GEOGRAPHIC AREAS NO SMALLER THAN
THOSE DETERMINED FOR THE STEEL INDUSTRY.  FN3  THE DETERMINATION IN
QUESTION WAS MADE JANUARY 16, 1939, BUT WAS NOT MADE OPERATIVE UNTIL
MARCH 1, 1939, "IN ORDER THAT INDUSTRY MAY MAKE NECESSARY READJUSTMENTS
TO COMPLY WITH THE DECISION." 

IN THEIR BILL FOR AN INJUNCTION AND A DECLARATORY JUDGMENT, THESE
SEVEN PRODUCERS OF IRON AND STEEL (RESPONDENTS HERE) SOUGHT TO ENJOIN
AS INDIVIDUALS AND IN THEIR OFFICIAL CAPACITIES, THE SECRETARIES OF THE
LABOR, TREASURY, WAR, NAVY, AND INTERIOR DEPARTMENTS, THE POSTMASTER
GENERAL, THE DIRECTOR OF PROCUREMENT OF THE TREASURY DEPARTMENT, THE
ASSISTANT SECRETARY OF LABOR, AND THE ADMINISTRATOR OF THE DIVISION OF
PUBLIC CONTRACTS OF THE DEPARTMENT OF LABOR AND THEIR "OFFICERS,
AGENTS, ASSISTANTS, EMPLOYEES, REPRESENTATIVES AND ATTORNEYS, AND ANY
ONE ASSOCIATED WITH OR ACTING IN CONCERT OR PARTICIPATION WITH THEM, OR
ANY OF THEM, AND THEIR SUCCESSORS IN OFFICE AND EACH OF THEM, AND THEIR
OFFICERS," ETC.  THE SEVEN COMPANIES NAMED AS COMPLAINANTS BY THE BILL
DID NOT MERELY PRAY RELIEF FOR THEMSELVES AGAINST THE SECRETARY'S WAGE
DETERMINATION BUT INSISTED THAT ALL THESE GOVERNMENT OFFICIALS BE
RESTRAINED FROM REQUIRING THE STATUTORY STIPULATION AS TO MINIMUM WAGES
IN CONTRACTS WITH ANY OTHER STEEL AND IRON MANUFACTURERS THROUGHOUT THE
UNITED STATES. 

THE DISTRICT COURT DECLINED TO INTERFERE SO SWEEPINGLY WITH THE
ADMINISTRATION OF THE ACT, EVEN IN THE TEMPORARY RESTRAINING ORDER
WHICH IT GRANTED.  ITS ORDER RAN ONLY AGAINST THE SECRETARIES OF LABOR
AND THE NAVY, AND SPECIFICALLY LIMITED ITS BENEFITS TO BUT THREE OF THE
COMPLAINING COMPANIES.  RECITALS IN THE ORDER INDICATE THAT ONLY THE
SECRETARY OF THE NAVY HAD ACTUALLY SOLICITED BIDS AND THAT ONLY THOSE
THREE COMPANIES WERE "DESIROUS OF BIDDING."  AFTER HEARING, THIS ORDER
WAS DISSOLVED AND THE COURT GRANTED A MOTION TO DISMISS THE COMPLAINT
FOR LACK OF JURISDICTION, INADEQUACY OF THE COMPLAINT, LACK OF STANDING
TO SUE, AND BECAUSE THE SUIT WAS ONE AGAINST THE UNITED STATES WITHOUT
ITS CONSENT.  FN4  A STAY PENDING APPEAL WAS DENIED BY THE DISTRICT
COURT, BUT THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, JUSTICE
EDGERTON DISSENTING, BY TEMPORARY INJUNCTION GRANTED THE SWEEPING
PRAYER THAT ALL THE GOVERNMENT OFFICIALS AND AGENTS DESIGNATED IN THE
BILL BE RESTRAINED FROM CONTINUING IN EFFECT THE DETERMINATION MADE BY
THE SECRETARY OF LABOR.  BY MOTION FOR REARGUMENT, THE RESTRAINED
OFFICIALS, REPRESENTED BY ATTORNEYS OF THE GOVERNMENT, ASKED THAT THE
INJUNCTION BE CLARIFIED SO AS TO BE "RESTRICTED TO ENJOINING
ENFORCEMENT OF THE DETERMINATION AGAINST PARTIES TO THIS PROCEEDING
...  AND  ...  NOT BE EXTENDED TO OTHER BIDDERS, NOT PARTIES TO THIS
ACTION, AND WHO, FOR ALL THAT APPEARS, MAY DESIRE TO ABIDE BY THE
DETERMINATION."  IN THE SAME MOTION, THE GOVERNMENT ASKED THAT
EMPLOYEES WHO MIGHT BE IRREPARABLY INJURED BE PROTECTED BY "A BOND OR
OTHER SECURITY TO PAY THE MINIMUM WAGES IF THE APPELLANTS DO NOT
EVENTUALLY SUCCEED IN THIS CASE."  FN5  THE RECORD DISCLOSES NO ACTION
BY THE COURT OF APPEALS ON THIS MOTION OR ON A SUBSEQUENT MOTION TO
DISSOLVE THE TEMPORARY INJUNCTION.  FN6  BUT THE TEMPORARY INJUNCTION,
RENDERING THE ACT WHOLLY INOPERATIVE AS TO THE IRON AND STEEL INDUSTRY
WAS KEPT IN EFFECT AND, REVERSING THE DISTRICT COURT, THE COURT OF
APPEALS, JUSTICE EDGERTON AGAIN DISSENTING, REMANDED WITH INSTRUCTIONS
THAT RELIEF AS PRAYED IN THE BILL BE GRANTED.  FN7    IN OUR JUDGMENT
THE ACTION OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA GOES
BEYOND ANY CONTROVERSY THAT MIGHT HAVE EXISTED BETWEEN THE COMPLAINING
COMPANIES AND THE GOVERNMENT OFFICIALS.  THE BENEFITS OF ITS
INJUNCTION, AND OF THAT ORDERED BY IT, WERE NOT LIMITED TO THE
POTENTIAL BIDDERS IN THE "LOCALITY," HOWEVER CONSTRUED, IN WHICH THE
RESPONDENTS DO BUSINESS.  ALL GOVERNMENT OFFICIALS WITH DUTIES TO
PERFORM UNDER THE PUBLIC CONTRACTS ACT HAVE BEEN RESTRAINED FROM
APPLYING THE WAGE DETERMINATION OF THE SECRETARY TO BIDDERS THROUGHOUT
THE NATION WHO WERE NOT PARTIES TO ANY PROCEEDING, WHO WERE NOT BEFORE
THE COURT AND WHO HAD SOUGHT NO RELIEF. 

AS A RESULT OF THIS JUDICIAL ACTION, FEDERAL OFFICIALS HAD NO
FEASIBLE ALTERNATIVE EXCEPT TO MAKE CONTRACTS FOR IMPERATIVELY NEEDED
SUPPLIES FOR THE WAR AND NAVY DEPARTMENTS WITHOUT INCLUSION OF THE
STIPULATION WHICH CONGRESS HAD REQUIRED.  THE PUBLIC CONTRACTS ACT, SO
FAR AS THE STEEL INDUSTRY IS CONCERNED, HAS BEEN SUSPENDED FOR MORE
THAN A YEAR, WITH NO BOND OR SECURITY TO PROTECT THE PUBLIC'S INTEREST
IN THE MAINTENANCE OF WAGE STANDARDS CONTEMPLATED BY CONGRESS, SHOULD
THE SUSPENSION ULTIMATELY APPEAR UNWARRANTED OR UNAUTHORIZED.  HERE,
AND BELOW, THE GOVERNMENT HAS CHALLENGED THE RIGHT OF THE JUDICIARY TO
TAKE SUCH ACTION, ALLEGING THAT IT CONSTITUTES AN UNWARRANTED
INTERFERENCE WITH DELIBERATE LEGISLATIVE POLICY AND WITH EXECUTIVE
ADMINISTRATION VITAL TO THE ACHIEVEMENT OF GOVERNMENTAL ENDS, AT THE
INSTANCE OF PARTIES WHOSE RIGHTS THE GOVERNMENT HAS NOT INVADED AND WHO
HAVE NO STANDING IN COURT TO ATTACK THE SECRETARY'S DETERMINATION.  THE
MANIFESTLY FAR-REACHING IMPORTANCE OF THE QUESTIONS THUS RAISED
PROMPTED US TO GRANT CERTIORARI.  FN8 

OF THE SIX "LOCALITIES" INTO WHICH THE SECRETARY'S DETERMINATION
DIVIDED THE STEEL INDUSTRY, RESPONDENTS DO BUSINESS IN THAT CONSISTING
OF OHIO, PENNSYLVANIA, DELAWARE, MARYLAND, KENTUCKY, NEW JERSEY, NEW
YORK, CONNECTICUT, RHODE ISLAND, MASSACHUSETTS, VERMONT, NEW HAMPSHIRE,
MAINE, THE DISTRICT OF COLUMBIA, AND A PART OF WEST VIRGINIA.  FN9
THEIR STATED GRIEVANCE WAS THAT THE CONSTRUCTION GIVEN TO THE TERM
"LOCALITY" BY THE SECRETARY AMOUNTED TO "A PLAIN ERROR OF LAW IN
INTERPRETING THE ACT,  ...  AND, CONSEQUENTLY, IN PURPORTING  ...  TO
DETERMINE THE PREVAILING MINIMUM WAGES FOR PERSONS EMPLOYED IN THE
MANUFACTURE  ...  OF THE IRON AND STEEL INDUSTRY IN THE SIX SO-CALLED
'LOCALITIES' SET FORTH IN THIS DETERMINATION (THE SECRETARY) ACTED
ARBITRARILY AND CAPRICIOUSLY AND WHOLLY WITHOUT WARRANT OR AUTHORITY IN
LAW."  IN PARTICULAR THE COMPLAINT ALLEGED - 

RESPONDENTS HAD BEEN SELLING THEIR PRODUCTS TO AGENTS OF THE UNITED
STATES FOR MANY YEARS; THEY WISHED TO CONTINUE TO BID ON GOVERNMENT
CONTRACTS; THEIR MINIMUM WAGES HAD RANGED FROM 53[ TO 56 1/2[ PER HOUR;
IF REQUIRED TO PAY THE 62 1/2[ PER HOUR MINIMUM RATE DETERMINED BY THE
SECRETARY THERE WAS GRAVE DANGER THAT THEY WOULD BE UNABLE SUCCESSFULLY
TO COMPETE WITH OTHERS FOR GOVERNMENT CONTRACTS; THEY HAD A LEGAL RIGHT
TO BID FOR GOVERNMENT CONTRACTS FREE FROM ANY OBLIGATION TO ABIDE BY
THE MINIMUM WAGE DETERMINATION BECAUSE OF ALLEGED ILLEGAL
ADMINISTRATIVE CONSTRUCTION OF "LOCALITY"; AND IF DENIED THE RIGHT TO
BID WITHOUT PAYING THEIR EMPLOYEES THIS MINIMUM WAGE THEY WOULD SUFFER
"IRREPARABLE AND IRRECOVERABLE DAMAGES" FOR WHICH THE LAW PROVIDED NO
"PLAIN, ADEQUATE OR COMPLETE REMEDY." 

IN STAYING THE EFFECT OF THE ADMINISTRATIVE WAGE DETERMINATION, THE
COURT OF APPEALS FOR THE DISTRICT WAS OF THE OPINION THAT "THE WORD
LOCALITY IS ONE OF SOMEWHAT INDEFINITE MEANING" REQUIRING THE SECRETARY
TO EXERCISE JUDGMENT AND DISCRETION "WITHIN THE PROPER LIMITS OF THE
MEANING OF LOCALITY," BUT HELD THAT THE SECRETARY'S DETERMINATION IN
THIS CASE WENT "SO FAR BEYOND ANY POSSIBLE PROPER APPLICATION OF THE
WORDS AS TO DEFEAT ITS MEANING AND TO CONSTITUTE AN ATTEMPT ARBITRARILY
TO DISREGARD THE STATUTORY MANDATE." 

WE ARE OF OPINION THAT NO LEGAL RIGHTS OF RESPONDENTS WERE SHOWN TO
HAVE BEEN INVADED OR THREATENED IN THE COMPLAINT UPON WHICH THE
INJUNCTION OF THE COURT OF APPEALS WAS BASED.  IT IS BY NOW CLEAR THAT
NEITHER DAMAGE NOR LOSS OF INCOME IN CONSEQUENCE OF THE ACTION OF
GOVERNMENT, WHICH IS NOT AN INVASION OF RECOGNIZED LEGAL RIGHTS, IS IN
ITSELF A SOURCE OF LEGAL RIGHTS IN THE ABSENCE OF CONSTITUTIONAL
LEGISLATION RECOGNIZING IT AS SUCH.  FN10  IT IS NOT ENOUGH THAT THE
SECRETARY OF LABOR IS CHARGED WITH AN ERRONEOUS INTERPRETATION OF THE
TERM "LOCALITY" AS AN ELEMENT IN HER WAGE DETERMINATION.  NOR CAN
RESPONDENTS VINDICATE ANY GENERAL INTEREST WHICH THE PUBLIC MAY HAVE IN
THE CONSTRUCTION OF THE ACT BY THE SECRETARY AND WHICH MUST BE LEFT TO
THE POLITICAL PROCESS.  RESPONDENTS, TO HAVE STANDING IN COURT, MUST
SHOW AN INJURY OR THREAT TO A PARTICULAR RIGHT OF THEIR OWN, AS
DISTINGUISHED FROM THE PUBLIC'S INTEREST IN THE ADMINISTRATION OF THE
LAW.  FN11  THEY CLAIM A STANDING BY ASSERTING THAT THEY HAVE
PARTICULAR RIGHTS UNDER AND EVEN APART FROM STATUTE TO BID AND
NEGOTIATE FOR GOVERNMENT CONTRACTS FREE FROM COMPLIANCE WITH THE
DETERMINATION MADE BY THE SECRETARY OF LABOR FOR THEIR INDUSTRY. 
RESPONDENTS POINT TO SEC. 3709 OF THE REVISED STATUTES AND TO THE
PUBLIC CONTRACTS ACT ITSELF. 

BENEFIT THAT ITS CONTRACTS BE MADE AFTER PUBLIC ADVERTISING.  FN12  IT
WAS NOT ENACTED FOR THE PROTECTION OF SELLERS AND CONFERS NO
ENFORCEABLE RIGHTS UPON PROSPECTIVE BIDDERS.  FN13  "THE UNITED STATES
NEEDS THE PROTECTION OF PUBLICITY, FORM, REGULARITY OF RETURNS AND
AFFIDAVIT (REVISED STATS., SECS. 3709, 3718-3724, 3745-3747), IN ORDER
TO PREVENT POSSIBLE FRAUDS UPON IT BY OTHERS.  A PRIVATE PERSON NEEDS
NO SUCH PROTECTION AGAINST A WRITTEN UNDERTAKING SIGNED BY HIMSELF. 
THE DUTY IS IMPOSED UPON THE OFFICERS OF THE GOVERNMENT AND NOT UPON
HIM."  FN14  THAT DUTY IS OWING TO THE GOVERNMENT AND TO NO ONE ELSE. 

LIKE PRIVATE INDIVIDUALS AND BUSINESSES, THE GOVERNMENT ENJOYS THE
UNRESTRICTED POWER TO PRODUCE ITS OWN SUPPLIES, TO DETERMINE THOSE WITH
WHOM IT WILL DEAL, AND TO FIX THE TERMS AND CONDITIONS UPON WHICH IT
WILL MAKE NEEDED PURCHASES.  FN15  ACTING THROUGH ITS AGENTS AS IT MUST
OF NECESSITY, THE GOVERNMENT MAY FOR THE PURPOSE OF KEEPING ITS OWN
HOUSE IN ORDER LAY DOWN GUIDE POSTS BY WHICH ITS AGENTS ARE TO PROCEED
IN THE PROCUREMENT OF SUPPLIES, AND WHICH CREATE DUTIES TO THE
GOVERNMENT ALONE.  IT HAS DONE SO IN THE PUBLIC CONTRACTS ACT.  THAT
ACT DOES NOT DEPART FROM BUT INSTEAD EMBODIES THE TRADITIONAL PRINCIPLE
OF LEAVING PURCHASES NECESSARY TO THE OPERATION OF OUR GOVERNMENT TO
ADMINISTRATION BY THE EXECUTIVE BRANCH OF GOVERNMENT, WITH ADEQUATE
RANGE OF DISCRETION FREE FROM VEXATIOUS AND DILATORY RESTRAINTS AT THE
SUITS OF PROSPECTIVE OR POTENTIAL SELLERS.  IT WAS NOT INTENDED TO BE A
BESTOWAL OF LITIGABLE RIGHTS UPON THOSE DESIROUS OF SELLING TO THE
GOVERNMENT; IT IS A SELF-IMPOSED RESTRAINT FOR VIOLATION OF WHICH THE
GOVERNMENT - BUT NOT PRIVATE LITIGANTS - CAN COMPLAIN.  THUS, A WAGE
DETERMINATION BY THE SECRETARY CONTEMPLATES NO CONTROVERSY BETWEEN
PARTIES AND NO FIXING OF PRIVATE RIGHTS; THE PROCESS OF ARRIVING AT A
WAGE DETERMINATION CONTAINS NO SEMBLANCE OF THESE ELEMENTS WHICH GO TO
MAKE UP A LITIGABLE CONTROVERSY AS OUR LAW KNOWS THE CONCEPT.  FN16
COURTS HAVE NEVER REVIEWED OR SUPERVISED THE ADMINISTRATION OF SUCH AN
EXECUTIVE RESPONSIBILITY EVEN WHERE EXECUTIVE DUTIES "REQUIRE AN
INTERPRETATION OF THE LAW."  FN17  JUDICIAL RESTRAINT OF THOSE WHO
ADMINISTER THE GOVERNMENT'S PURCHASING WOULD CONSTITUTE A BREAK WITH
SETTLED JUDICIAL PRACTICE AND A DEPARTURE INTO FIELDS HITHERTO WISELY
AND HAPPILY APPORTIONED BY THE GENIUS OF OUR POLITY TO THE
ADMINISTRATION OF ANOTHER BRANCH OF GOVERNMENT. 

THIS ACT'S PURPOSE WAS TO IMPOSE OBLIGATIONS UPON THOSE FAVORED WITH
GOVERNMENT BUSINESS AND TO OBVIATE THE POSSIBILITY THAT ANY PART OF OUR
TREMENDOUS NATIONAL EXPENDITURES WOULD GO TO FORCES TENDING TO DEPRESS
WAGES AND PURCHASING POWER AND OFFENDING FAIR SOCIAL STANDARDS OF
EMPLOYMENT.  AS STATED IN THE REPORT OF THE HOUSE COMMITTEE ON THE
JUDICIARY ON THE BILL,  FN18  "THE OBJECT OF THE BILL IS TO REQUIRE
PERSONS HAVING CONTRACTS WITH THE GOVERNMENT TO CONFORM TO CERTAIN
LABOR CONDITIONS IN THE PERFORMANCE OF THE CONTRACTS AND THUS TO
ELIMINATE THE PRACTICE UNDER WHICH THE GOVERNMENT IS COMPELLED TO DEAL
WITH SWEAT SHOPS." 

WE FIND NOTHING IN THE ACT INDICATING ANY INTENTION TO ABANDON A
PRINCIPLE ACTED UPON SINCE THE NATION'S FOUNDING UNDER WHICH THE
LEGISLATIVE AND EXECUTIVE DEPARTMENTS HAVE EXERCISED COMPLETE AND FINAL
AUTHORITY TO ENTER INTO CONTRACTS FOR GOVERNMENT PURCHASES.  THE
COMMITTEE HEARINGS AND REPORTS AND THE CONSTRUCTION OF THE MEASURE BY
ITS SPONSORS DISCLOSE NO PURPOSE TO INVOKE JUDICIAL SUPERVISION OVER
AGENTS CHOSEN BY CONGRESS TO PERFORM THESE DUTIES.  AND SECS. 4 AND 5
DO NOT SUBJECT A WAGE DETERMINATION TO SUCH REVIEW.  PROVISION FOR
HEARINGS AND FINDINGS BY THE SECRETARY WITH RESPECT TO DECISIONS UPON
BREACHES OF STIPULATIONS BY CONTRACTORS, ONCE PURCHASES HAVE BEEN MADE,
IS INDICATIVE OF A LACK OF INTENTION TO CREATE ANY RIGHTS FOR
PROSPECTIVE BIDDERS BEFORE A PURCHASE IS CONCLUDED. 

THE ACT DOES NOT REPRESENT AN EXERCISE BY CONGRESS OF REGULATORY
POWER OVER PRIVATE BUSINESS OR EMPLOYMENT.  FN19  IN THIS LEGISLATION
CONGRESS DID NO MORE THAN INSTRUCT ITS AGENTS WHO WERE SELECTED AND
GRANTED FINAL AUTHORITY TO FIX THE TERMS AND CONDITIONS UNDER WHICH THE
GOVERNMENT WILL PERMIT GOODS TO BE SOLD TO IT.  THE SECRETARY OF LABOR
IS UNDER A DUTY TO OBSERVE THOSE INSTRUCTIONS JUST AS A PURCHASING
AGENT OF A PRIVATE CORPORATION MUST OBSERVE THOSE OF HIS PRINCIPAL.  IN
BOTH INSTANCES PROSPECTIVE BIDDERS FOR CONTRACTS DERIVE NO ENFORCEABLE
RIGHTS AGAINST THE AGENT FOR AN ERRONEOUS INTERPRETATION OF THE
PRINCIPAL'S AUTHORIZATION.  FOR ERRONEOUS CONSTRUCTION OF HIS
INSTRUCTIONS, GIVEN FOR THE SOLE BENEFIT OF THE PRINCIPAL, THE AGENT IS
RESPONSIBLE TO HIS PRINCIPAL ALONE BECAUSE HIS MISCONSTRUCTION VIOLATES
NO DUTY HE OWES TO ANY BUT HIS PRINCIPAL.  THE SECRETARY'S
RESPONSIBILITY IS TO SUPERIOR EXECUTIVE AND LEGISLATIVE AUTHORITY. 
RESPONDENTS HAVE NO STANDING IN COURT TO ENFORCE THAT RESPONSIBILITY OR
TO REPRESENT THE PUBLIC'S INTEREST IN THE SECRETARY'S COMPLIANCE WITH
THE ACT.  FN20  THAT RESPONDENTS SOUGHT TO VINDICATE SUCH A PUBLIC
RIGHT OR INTEREST IS MADE APPARENT BOTH BY THEIR PRAYER THAT THE
DETERMINATION BE SUSPENDED AS TO THE ENTIRE STEEL INDUSTRY AND BY THE
EXTENT OF THE INJUNCTION GRANTED. 

THE CONTESTED ACTION OF THE RESTRAINED OFFICIALS DID NOT INVADE
PRIVATE RIGHTS IN A MANNER AMOUNTING TO A TORTIOUS VIOLATION.  ON THE
CONTRARY, RESPONDENTS IN EFFECT SEEK THROUGH JUDICIAL ACTION TO
INTERFERE WITH THE MANNER IN WHICH THE GOVERNMENT MAY DISPATCH ITS OWN
INTERNAL AFFAIRS.  AND IN ATTEMPTED SUPPORT OF THE INJUNCTION GRANTED
THEY CITE MANY CASES INVOLVING CONTESTED GOVERNMENT REGULATION OF THE
CONDUCT OF PRIVATE BUSINESS.  FN21  THEIR CITED CASES, HOWEVER, ALL
RELATE TO PROBLEMS DIFFERENT FROM THOSE INHERENT IN THE IMPOSITION OF
JUDICIAL RESTRAINT UPON AGENTS ENGAGED IN THE PURCHASE OF THE
GOVERNMENT'S OWN SUPPLIES. 

THE GOVERNMENT CAN SUPPLY ITS NEEDS BY ITS OWN MANUFACTURING OR BY
PURCHASE.  AND CONGRESS CAN AS IT ALWAYS HAS, EITHER DO THE PURCHASING
OF THE GOVERNMENT'S GOODS AND SUPPLIES ITSELF, OR IT CAN ENTRUST ITS
AGENTS WITH FINAL POWER TO DO SO AND MAKE THESE AGENTS RESPONSIBLE ONLY
TO IT. FN22  COURTS SHOULD NOT, WHERE CONGRESS HAS NOT DONE SO, SUBJECT
PURCHASING AGENCIES OF GOVERNMENT TO THE DELAYS NECESSARILY INCIDENT TO
JUDICIAL SCRUTINY AT THE INSTANCE OF POTENTIAL SELLERS, WHICH WOULD BE
CONTRARY TO TRADITIONAL GOVERNMENTAL PRACTICE AND WOULD CREATE A NEW
CONCEPT OF JUDICIAL CONTROVERSIES.  A LIKE RESTRAINT APPLIED TO
PURCHASING BY PRIVATE BUSINESS WOULD BE WIDELY CONDEMNED AS AN
INTOLERABLE BUSINESS HANDICAP.  IT IS, AS BOTH CONGRESS AND THE COURTS
HAVE ALWAYS RECOGNIZED, ESSENTIAL TO THE EVEN AND EXPEDITIOUS
FUNCTIONING OF GOVERNMENT THAT THE ADMINISTRATION OF THE PURCHASING
MACHINERY BE UNHAMPERED.  THE CONSTITUTION PROHIBITS APPROPRIATIONS FOR
THE ARMY FOR MORE THAN TWO YEARS,  FN23  AND BY STATUTE CONTRACTS FOR
THE PURCHASE OF DEPARTMENTAL SUPPLIES ARE IN GENERAL LIMITED TO ONE
YEAR.  FN24  THESE PROHIBITIONS EMPHASIZE THE GRAVE IMPORTANCE OF
LEAVING THE RESTRAINT OF THE GOVERNMENT'S PURCHASING AGENTS TO CONGRESS
AND THEIR EXECUTIVE SUPERIORS. 

THE RECORD HERE DISCLOSES THE "CONFUSION AND DISORDER"  FN25  THAT
CAN RESULT FROM THE DELAYS NECESSARILY INCIDENT TO JUDICIAL SUPERVISION
OF ADMINISTRATIVE PROCEDURE DEVELOPED TO MEET PRESENT DAY NEEDS OF
GOVERNMENT AND CAPABLE OF OPERATING EFFICIENTLY AND FAIRLY TO BOTH
PRIVATE AND PUBLIC INTERESTS.  IN THE APPROPRIATE WORDS OF MR. JUSTICE
SUTHERLAND, "THE BARE SUGGESTION OF SUCH A RESULT, WITH ITS ATTENDANT
INCONVENIENCES, GOES FAR TO SUSTAIN THE CONCLUSION WHICH WE HAVE
REACHED, THAT A SUIT OF THIS CHARACTER CANNOT BE MAINTAINED."  FN26
FOR MORE THAN A YEAR, CABINET OFFICERS AND THEIR SUBORDINATES HAVE BEEN
ENJOINED FROM MAKING THE SECRETARY'S DETERMINATION OF MINIMUM WAGES
EFFECTIVE.  MEANWHILE, IRON AND STEEL WERE NEEDED FOR THE ARMY AND
NAVY.  IN ORDER THAT THE MILITARY PROGRAM COULD PROCEED, THE DECLARED
POLICY OF THE CONGRESS WAS ABANDONED UNDER JUDICIAL COMPULSION AND
CONTRACTS WITHOUT A MINIMUM WAGE STIPULATION HAVE BEEN AWARDED FOR MORE
THAN $65,000,000.00 WORTH OF IRON AND STEEL PRODUCTS SINCE THE
INJUNCTION ISSUED.  FN27  IF THE GENERAL LAW PERMITS PROSPECTIVE
BIDDERS TO CHALLENGE EACH WAGE DETERMINATION OF THE SECRETARY IN THE
COURTS, BY A LIKE TOKEN ALL EMPLOYEES AFFECTED COULD OBTAIN JUDICIAL
REVIEW.  SUCH A POSSIBILITY PLACES IN BOLD RELIEF THOSE CONDITIONS
WHICH LED CONGRESS TO PROCEED IN THIS ACT UPON THE BELIEF, TO WHICH WE
HAVE RECENTLY ALLUDED,  FN28  THAT "LEGISLATURES ARE ULTIMATE GUARDIANS
OF THE LIBERTIES AND WELFARE OF THE PEOPLE IN QUITE AS GREAT A DEGREE
AS THE COURTS."  FN29    THE CASE BEFORE US MAKES IT FITTING TO
REMEMBER THAT "THE INTERFERENCE OF THE COURTS WITH THE PERFORMANCE OF
THE ORDINARY DUTIES OF THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT,
WOULD BE PRODUCTIVE OF NOTHING BUT MISCHIEF; AND WE ARE QUITE SATISFIED
THAT SUCH A POWER WAS NEVER INTENDED TO BE GIVEN TO THEM."  FN30 

THE DISTRICT COURT PROPERLY DISMISSED THE BILL AND THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA WAS IN ERROR IN FINDING
RESPONDENTS WITH STANDING TO BRING THIS ACTION, IN ORDERING THE
SECRETARY'S DETERMINATION RESTRAINED AND IN HOLDING RESPONDENTS
ENTITLED TO DECLARATORY JUDGMENT.  FN31 

OUR DECISION THAT THE COMPLAINING COMPANIES LACK STANDING TO SUE DOES
NOT REST UPON A MERE FORMALITY.  WE REST IT UPON REASONS DEEPLY ROOTED
IN THE CONSTITUTIONAL DIVISIONS OF AUTHORITY IN OUR SYSTEM OF
GOVERNMENT AND THE IMPROPRIETY OF JUDICIAL INTERPRETATIONS OF LAW AT
THE INSTANCE OF THOSE WHO SHOW NO MORE THAN A MERE POSSIBLE INJURY TO
THE PUBLIC.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THAT
OF THE DISTRICT COURT DISMISSING THE BILL IS AFFIRMED.  REVERSED. 

FN1  49 STAT. 2036. 

FN2  46 STAT. 1494. 

FN3  2 FED. REG. 233, 1333, 1335, 1336, 1337, 1338, 1339, 2960, 2976;
3 FED. REG. 64, 224, 257, 889, 1613, 895, 901, 1612, 1153, 2371, 2370,
2537, 3043; 4 FED. REG. 4005. 

FN4  THE DISTRICT COURT'S JUDGMENT WAS RENDERED WITHOUT OPINION. 

FN5  SECTIONS OF THE PUBLIC CONTRACTS ACT PROVIDE THAT "BREACH OR
VIOLATION OF ANY OF THE REPRESENTATIONS AND STIPULATIONS IN ANY
CONTRACT FOR THE PURPOSES SET FORTH  ...  SHALL RENDER THE PARTY
RESPONSIBLE THEREFOR LIABLE TO THE UNITED STATES OF AMERICA FOR
LIQUIDATED DAMAGES, IN ADDITION TO DAMAGES FOR ANY OTHER BREACH OF SUCH
CONTRACT,  ...  A SUM EQUAL TO THE AMOUNT OF ANY DEDUCTIONS, REBATES,
REFUNDS, OR UNDERPAYMENT OF WAGES DUE TO ANY EMPLOYEE ENGAGED IN THE
PERFORMANCE OF SUCH CONTRACT; ...  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.  ALL SUMS WITHHELD OR
RECOVERED AS DEDUCTIONS, REBATES, REFUNDS, OR UNDERPAYMENTS OF WAGES
SHALL 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; ...  " 

FN6  THE GOVERNMENT'S MOTION TO CLARIFY AND RESTRICT THE TEMPORARY
INJUNCTION AND FOR SECURITY WAS FILED MARCH 29, 1939; THE MOTION TO
DISSOLVE THE TEMPORARY INJUNCTION WAS FILED APRIL 13, 1939.  NO
SPECIFIC CONSIDERATION OF THESE MOTIONS BY THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA IS DISCLOSED IN THE RECORD.  AUGUST 4, 1939, AFTER
ARGUMENT ON THE MERITS, THAT COURT OF APPEALS, PER CURIAM, JUSTICE
EDGERTON DISSENTING, ANNOUNCED THAT THE TEMPORARY INJUNCTION WOULD BE
KEPT IN EFFECT, THAT THE JUDGMENT OF THE DISTRICT COURT WOULD BE
REVERSED AND THAT THE GROUNDS FOR ENJOINING THE ADMINISTRATION OF THE
ACT WOULD BE SET OUT IN AN OPINION "TO BE FILED SHORTLY."  THE OPINION
OF THE COURT OF APPEALS CAME DOWN OCTOBER 3, 1939; JUSTICE EDGERTON
FILED A SEPARATE OPINION IN DISSENT. 

FN7  107 F.2D 627. 

FN8  309 U.S. 643. 

FN9  THE REMAINING FIVE LOCALITIES ARE:  1, LOUISIANA, ARKANSAS,
MISSISSIPPI, NORTH CAROLINA, SOUTH CAROLINA, FLORIDA, OKLAHOMA, TEXAS,
ALABAMA, TENNESSEE, GEORGIA, VIRGINIA, AND A PART OF WEST VIRGINIA; 2,
WASHINGTON, OREGON AND CALIFORNIA; 3, MONTANA, IDAHO, NEVADA, WYOMING,
NEW MEXICO, UTAH, COLORADO AND ARIZONA; 4, NORTH DAKOTA, SOUTH DAKOTA,
NEBRASKA, KANSAS, MINNESOTA, IOWA, MISSOURI AND THE AREA IN AND ABOUT
EAST SAINT LOUIS, ILLINOIS; 5, WISCONSIN, ILLINOIS (EXCEPT THE AREA IN
AND ABOUT EAST SAINT LOUIS, ILLINOIS), MICHIGAN AND INDIANA. 

FN10  TENNESSEE ELECTRIC POWER CO. V. TENNESSEE VALLEY AUTHORITY, 306
U.S. 118, 137-8; ALABAMA POWER CO. V. ICKES, 302 U.S. 464;
MASSACHUSETTS V. MELLON, 262 U.S. 447. 

FN11  STEARNS V. WOOD, 236 U.S. 75, 78; FAIRCHILD V. HUGHES, 258 U.S.
126, 129. 

FN12  R.S. 3709(41 U.S.C. 5) PROVIDES:  "EXCEPT AS OTHERWISE PROVIDED
BY LAW ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, IN ANY OF
THE DEPARTMENTS OF THE GOVERNMENT, AND PURCHASES OF INDIAN SUPPLIES,
EXCEPT FOR PERSONAL SERVICES, SHALL BE MADE BY ADVERTISING A SUFFICIENT
TIME PREVIOUSLY FOR PROPOSALS RESPECTING THE SAME, WHEN THE PUBLIC
EXIGENCIES DO NOT REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES, OR
PERFORMANCE OF THE SERVICE.  WHEN IMMEDIATE DELIVERY OR PERFORMANCE IS
REQUIRED BY THE PUBLIC EXIGENCY, THE ARTICLES OR SERVICE REQUIRED MAY
BE PROCURED BY OPEN PURCHASE OR CONTRACT, AT THE PLACES AND IN THE
MANNER IN WHICH SUCH ARTICLES ARE USUALLY BOUGHT AND SOLD, OR SUCH
SERVICES ENGAGED, BETWEEN INDIVIDUALS." 

FN13  CF. GOLDBERG V. DANIELS, 231 U.S. 218. 

FN14  UNITED STATES V. NEW YORK & PORTO RICO S.S. CO., 239 U.S. 88,
92, 93; AMERICAN SMELTING & REFINING CO. V. UNITED STATES, 259 U.S. 75,
78.  CF. COLORADO PAVING CO. V. MURPHY, 78 F. 28(C.C.A.8TH).  SEE 38
OP. ATT.  GEN.  555, 557.  BIDDERS HAVE NOT BEEN ABLE TO CONTEST THE
AWARD OF CONTRACTS AS BIDDERS OR IN THEIR CAPACITY AS CITIZENS
GENERALLY.  O'BRIEN V. CARNEY, 6 F.SUPP.  761; B.F. CUMMINGS CO. V.
BURLESON, 40 APP. D.C. 500; CHAMPION COATED PAPER CO. V. JOINT
COMMITTEE ON PRINTING, 47 APP. D.C. 141; CF. STRONG V. UNITED STATES, 6
CT. CLS. 135.  AND THE VIEW THAT BIDDERS HAVE NO STANDING IN THE COURTS
HAS BEEN GENERALLY RECOGNIZED BY THE COMPTROLLER GENERAL, THE INTER
DEPARTMENTAL BOARD ON CONTRACTS OF THE BUREAU OF THE BUDGET AS WELL AS
THE SENATE JUDICIARY COMMITTEE.  HEARING BEFORE THE COMM. ON THE
JUDICIARY, HOUSE OF REPRESENTATIVES, 71ST CONG., 2ND SESS., ON H.R.
5568, SERIAL 4, PART 1, PP. 16-22, 26-27; SENATE REPORT 433, 74TH
CONG., 1ST SESS. 

FN15  ATKIN V. KANSAS, 191 U.S. 207; ELLIS V. UNITED STATES, 206 U.S.
246; HEIM V. MCCALL, 239 U.S. 175; CF. FEDERAL TRADE COMMISSION V.
RAYMOND CO., 263 U.S. 565. 

FN16  NORWEGIAN NITROGEN CO. V. UNITED STATES, 288 U.S. 294, 319,
320. 

FN17  UNITED STATES EX REL. DUNLAP V. BLACK, 128 U.S. 40, 48; CF.
BUTTE, A. & P. RY. CO. V. UNITED STATES, 290 U.S. 127, 136, 142, 143. 

FN18  HOUSE REPORT NO. 2946, 74TH CONG., 2ND SESS. 

FN19  CF. EX PARTE WILLIAMS, 277 U.S. 267, 269, 272; GREAT NORTHERN
RY. CO. V. UNITED STATES, 277 U.S. 172, 180. 

FN20  CF. GENERAL INVESTMENT CO. V. NEW YORK CENTRAL R. CO., 271 U.S.
228, 230.  SEE ALSO NOTE 10. 

FN21  SEE, E.G., UTAH FUEL CO. V. COAL COMM'N, 306 U.S. 56, 58;
SHIELDS V. UTAH IDAHO CENTRAL R. CO., 305 U.S. 177; WAITE V. MACY, 246
U.S. 606; AMERICAN SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S.
94; GEGIOW V. UHL, 239 U.S. 3; TRUAX V. RAICH, 239 U.S. 33; PIERCE V.
SOCIETY OF SISTERS, 268 U.S. 510. 

FN22  GREAT NORTHERN RY. CO. V. UNITED STATES, 277 U.S. 172, 182;
WORK V. RIVES, 267 U.S. 175; BUTTE, A. & P. RY. CO. V. UNITED STATES,
290 U.S. 127; UNITED STATES V. BABCOCK, 250 U.S. 328; LOUISIANA V.
MCADOO, 234 U.S. 627; ADAMS V. NAGLE, 303 U.S. 532, 540-1. 

FN23  ART. I, SEC. 8, CL. 12. 

FN24  41 U.S.C. 13. 

FN25  CF. MR. CHIEF JUSTICE TANEY IN DECATUR V. PAULDING, 14 PET.
497, 516. 

FN26  MASSACHUSETTS V. MELLON, 262 U.S. 447, 487. 

FN27  BULLETINS NOS. 75 TO 176, INCLUSIVE, OF THE DIVISION OF PUBLIC
CONTRACTS OF THE DEPARTMENT OF LABOR. 

FN28  FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE BROADCASTING
CO., 309 U.S. 134, 146. 

FN29  MISSOURI, K. & T. RY. CO. V. MAY, 194 U.S. 267, 270. 

FN30  DECATUR V. PAULDING, SUPRA, AT 516. 

FN31  AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227, 240-1. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE CHALLENGED JUDGMENT
SHOULD BE AFFIRMED. 
..END :





















WARREN V. PALMER, 310 U.S. 132 


NO. 643.  ARGUED MARCH 29, APRIL 1, 1940.  - DECIDED APRIL 29, 1940.  -
108 F.2D 164, AFFIRMED. 


WHERE A RAILROAD SYSTEM, IN A REORGANIZATION PROCEEDING UNDER SEC. 77
OF THE BANKRUPTCY ACT, INCLUDES A LEASED LINE, OPERATED AT A LOSS AND
WHICH CAN NOT BE OPERATED BY ITS OWNER, AND WHERE, BY ORDER OF THE
COURT THE TRUSTEES HAVE REJECTED THE LEASE BUT HAVE CONTINUED TO
OPERATE THE LEASED ROAD FOR THE ACCOUNT OF THE LESSOR, PURSUANT TO SEC.
77(C)(6), THE COURT HAS JURISDICTION TO DETERMINE THE AMOUNT OF THE
DEFICIT CHARGEABLE TO THE LESSOR AND TO IMPOSE A FIRST LIEN ON THE
LEASED PROPERTY TO SECURE IT, AND TO DO THIS AFTER PROCEEDINGS FOR
REORGANIZATION OF THE LESSOR COMPANY UNDER SEC. 77 HAVE BEEN INSTITUTED
IN ANOTHER DISTRICT WHERE THE LEASED LINE IS SITUATE.  P. 140. 

WARREN ET AL., TRUSTEES, V. PALMER ET AL., TRUSTEES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 309 U.S. 645, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
DISTRICT COURT IN A RAILROAD REORGANIZATION PROCEEDING UNDER SEC. 77 OF
THE BANKRUPTCY ACT.  THE ORDER FIXED THE AMOUNT OF A DEFICIT ARISING
FROM THE OPERATION OF A LEASED LINE AND DECLARED IT A FIRST LIEN ON THE
LEASED PROPERTY.  ONLY THE QUESTION OF THE BANKRUPTCY COURT'S
JURISDICTION TO DO THIS WAS BROUGHT HERE. 

THE PROPERTY OF THE BOSTON & PROVIDENCE WAS NOT SUBJECT TO
ADMINISTRATION WITHIN THE CONNECTICUT COURT'S BANKRUPTCY JURISDICTION. 
EVEN THOUGH THAT COURT MAY HAVE HAD POSSESSION OF THE PROPERTY, AND
EVEN THOUGH SEC. 77 STILL TURNS UPON POSSESSION IN PART, THE
JURISDICTION RESULTING FROM POSSESSION IS NOT BROAD ENOUGH TO SUSTAIN
THE RELIEF SOUGHT IN THIS CASE. 

PROPERTY WHICH DOES NOT BELONG TO THE DEBTOR IS NOT SUBJECT TO
ADMINISTRATION IN THE DEBTOR'S BANKRUPTCY.  THIS APPLIES TO THE
LESSOR'S INTEREST IN THE LEASED PROPERTY. 

THERE IS NOTHING IN SEC. 77 WHICH EXTENDS THE JURISDICTION OF THE
BANKRUPTCY COURT TO ADMINISTER PROPERTY IN THE POSSESSION OF A DEBTOR
WHICH THE DEBTOR DOES NOT OWN.  THE BOSTON & PROVIDENCE COULD NOT BE
REORGANIZED BY THE CONNECTICUT COURT. 

SERVE AS THE FOUNDATION FOR IMPLYING THAT THE CONNECTICUT COURT WOULD
HAVE CORRELATIVE JURISDICTION TO DETERMINE THE CONSEQUENCES OF THE
PERFORMANCE OF THAT DUTY.  THE DUTY TO OPERATE THE RAILROAD EXISTED
INDEPENDENTLY OF SEC. 77.  THAT SECTION GAVE THE NEW HAVEN A MEANS OF
ESCAPING THE EXISTING BURDEN, BUT ON TERMS WHICH THE NEW HAVEN HAS NOT
SEEN FIT TO FOLLOW.  THERE IS NOTHING IN SEC. 77(C)(6) WHICH SUGGESTS
THAT THE ADJUDICATION OF THE ACCOUNT IN THIS CASE IS THE EXCLUSIVE
PREROGATIVE OF THE CONNECTICUT COURT. 

THE JURISDICTION OF THE CONNECTICUT COURT IS NOT AIDED BY ITS STATUS
AS A RECEIVERSHIP COURT.  A RECEIVERSHIP COURT DOES NOT HAVE
JURISDICTION OVER PROPERTY BEYOND ITS TERRITORIAL LIMITS.  THE
MASSACHUSETTS COURT HERE IS NOT A MERE ANCILLARY COURT IN THE NEW HAVEN
REORGANIZATION OF THE BOSTON & PROVIDENCE. 

THE CLAIM IS ONE WHICH HAS GROWN UP WHOLLY IN EQUITY PROCEEDINGS. 
THE RESPONDENTS MUST TAKE IT SUBJECT TO THE TERRITORIAL LIMITATIONS ON
THE CONNECTICUT COURT'S JURISDICTION TO ACT AS AN EQUITY RECEIVERSHIP
COURT. 

EXCLUSIVE JURISDICTION OVER THE BOSTON & PROVIDENCE AND ITS PROPERTY
IS NOW VESTED IN THE DISTRICT COURT IN MASSACHUSETTS.  THIS WOULD SEEM
TO FOLLOW FROM THE PLAIN LANGUAGE OF SEC. 77(A) OF THE BANKRUPTCY ACT
WHICH GIVES THE MASSACHUSETTS COURT EXCLUSIVE JURISDICTION OF THE
DEBTOR AND ITS PROPERTY WHEREVER LOCATED. 

CONGRESS DID NOT PROVIDE FOR THE UNIFIED REORGANIZATION OF RAILROAD
SYSTEMS. 

IF THE NEW HAVEN CLAIM CAN PROPERLY BE LIQUIDATED BY THE CONNECTICUT
COURT, AND THE RANK OF THE LIEN FIXED BY THE CONNECTICUT COURT, THEN
THE MASSACHUSETTS COURT HAS ONLY A PERFUNCTORY JURISDICTION OVER "THE
NEW ALLOCATION OF INTERESTS IN" THE BOSTON & PROVIDENCE PROPERTY.  IT
MUST DISPOSE OF ALL ITS DEBTOR'S PROPERTY ON THE SAY-SO OF ANOTHER
COURT. 

THE JURISDICTION OF THE CONNECTICUT COURT CAN NOT BE SUSTAINED ON THE
GROUND THAT IT FIRST TOOK OVER THE RES.  THERE ARE MANY CASES IN WHICH
IT HAS BEEN HELD THAT A BANKRUPTCY COURT SUPERSEDES A JURISDICTION
WHICH HAS ALREADY BEEN OBTAINED BY ANOTHER COURT.  ONLY BY RECOGNIZING
THE PARAMOUNT JURISDICTION OF THE MASSACHUSETTS COURT CAN THE PURPOSE
OF CONGRESS TO ACHIEVE A UNIFIED DISPOSITION OF THE DEBTOR'S ESTATE BE
OBTAINED. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE BOSTON AND PROVIDENCE RAILROAD CORPORATION IN 1888 LEASED ITS
PROPERTY, A LINE OF ROAD RUNNING BETWEEN BOSTON AND PROVIDENCE, FOR 99
YEARS TO THE OLD COLONY RAILROAD.  IT HAS CONTINUED AS A SEPARATE
CORPORATION, RECEIVING AND DISTRIBUTING ITS RENT, AND IS NOT A
SUBSIDIARY OR AFFILIATE OF THE NEW HAVEN OR THE OLD COLONY.  IN 1899
THE OLD COLONY LEASED ITS LINES, INCLUDING ITS LEASEHOLD IN THE BOSTON
AND PROVIDENCE, TO THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD FOR 99
YEARS.  THE NEW HAVEN OPERATED ITS OWN AND THE LEASED PROPERTY UNTIL IT
WAS PUT INTO REORGANIZATION UNDER SEC. 77 OF THE BANKRUPTCY ACT  FN1
IN THE DISTRICT COURT OF CONNECTICUT ON OCTOBER 23, 1935.  THE TRUSTEES
OF THE NEW HAVEN OPERATED THE OLD COLONY UNDER THE LEASE UNTIL THEY
REJECTED THE LEASE BY ORDER OF THE COURT ON JUNE 2, 1936.  NEXT DAY THE
OLD COLONY FILED UNDER SEC. 77 IN THE SAME CONNECTICUT COURT AS A
SUBSIDIARY DEBTOR, THE COURT APPOINTED THE TRUSTEES OF THE NEW HAVEN
TRUSTEES OF THE OLD COLONY, AND ON JUNE 18, 1936, THE COURT ORDERED THE
NEW HAVEN TRUSTEES TO CONTINUE TO OPERATE THE OLD COLONY AS AN INTEGRAL
PART OF THE NEW HAVEN, THE OPERATION BEING FOR THE ACCOUNT OF THE OLD
COLONY.  THE ORDER PROVIDED THAT, IN THE EVENT LEASES OF THE OLD COLONY
WERE LATER REJECTED, PAYMENTS FOR OPERATING THE LEASED PROPERTY AND
PAYMENTS OF RENT UNDER THE LEASE WOULD BE DEEMED TO HAVE BEEN FOR THE
ACCOUNT OF THE LESSOR AND COULD BE RECOVERED FROM THE LEASED PROPERTY
PRIOR TO ANY MORTGAGE OR LIEN THEREON.  ON JULY 19, 1938, THE COURT
DIRECTED THE TRUSTEES OF THE OLD COLONY TO REJECT THE LEASE OF THE
BOSTON AND PROVIDENCE AND TO CONTINUE OPERATION OF THE ROAD FOR THE
ACCOUNT OF THE BOSTON AND PROVIDENCE PURSUANT TO SEC. 77(C)(6).  ON
AUGUST 4, 1938, THE BOSTON AND PROVIDENCE WAS PUT INTO REORGANIZATION
IN THE DISTRICT COURT OF MASSACHUSETTS.  PREVIOUSLY THE SYSTEM HAD BEEN
OPERATING AT A LOSS AND THE TRUSTEES OF THE NEW HAVEN AND THE OLD
COLONY ASKED THE CONNECTICUT COURT TO DETERMINE THE AMOUNT OF THE
DEFICIT ATTRIBUTABLE TO THE BOSTON AND PROVIDENCE FOR THE PERIOD FROM
JUNE 4, 1936, TO DECEMBER 31, 1937, AND TO DECLARE THAT AMOUNT A LIEN
ON THE BOSTON AND PROVIDENCE IN FAVOR OF THE NEW HAVEN AND THE OLD
COLONY.  ON JANUARY 16, 1939, THE CONNECTICUT COURT DECIDED THAT IT HAD
JURISDICTION TO GRANT THE REQUESTED LIEN ON THE BOSTON AND PROVIDENCE,
ALTHOUGH THAT ROAD WAS UNDER REORGANIZATION IN ANOTHER BANKRUPTCY
COURT, AND ON APRIL 20, 1939, THE COURT ENTERED AN ORDER FIXING THE
AMOUNT OF THE DEFICIT AND DECLARING IT A FIRST LIEN ON THE PROPERTY OF
THE BOSTON AND PROVIDENCE.  THE CIRCUIT COURT OF APPEALS, HOLDING THAT
THE CONNECTICUT COURT HAD JURISDICTION TO DETERMINE THE LIEN, AFFIRMED
THE ORDER OF JANUARY 16, 1939, BUT CONCLUDED THAT THE BOSTON AND
PROVIDENCE HAD BEEN GIVEN NO CHANCE TO BE HEARD ON THE MERITS OF THE
QUESTION AND REMANDED THE LATER ORDER FOR A DETERMINATION OF THE
"EXISTENCE AND AMOUNT OF THE OBLIGATION."  FN2 

THE OBLIGATION ON WHICH THE CLAIMED LIEN IS BASED ARISES, SO THE
TRUSTEES OF THE NEW HAVEN AND THE OLD COLONY CONTEND, FROM THE
OPERATION OF THE BOSTON AND PROVIDENCE UNDER SEC. 77(C)(6) BY THE OLD
COLONY FOR THE ACCOUNT OF THE BOSTON AND PROVIDENCE.  PETITIONERS DENY
THAT 77(C)(6) WAS PROPERLY INVOKED AND CLAIM THAT THE DEFICIT IS NOT
CHARGEABLE TO THEM.  THIS PHASE OF THE CONTROVERSY IS NOT BEFORE US,
FOR PETITIONERS HAVE BROUGHT HERE ONLY THE QUESTION OF THE CONNECTICUT
COURT'S JURISDICTION TO DETERMINE THE AMOUNT OF THE DEFICIT CHARGEABLE
TO THE BOSTON AND PROVIDENCE AND TO IMPOSE A LIEN ON ITS PROPERTY TO
SECURE IT.  IF THE CONNECTICUT COURT HAS THAT JURISDICTION, IT WILL
DETERMINE WHETHER THE DEFICIT IS CHARGEABLE TO THE BOSTON AND
PROVIDENCE WHEN IT DETERMINES THE "EXISTENCE AND EXTENT OF THE
OBLIGATION" PURSUANT TO THE ORDER OF REMAND OF THE COURT OF APPEALS. 

THE CONTROVERSY HAS SUBSTANCE BECAUSE OF THE CONTENTION OF THE
TRUSTEES FOR THE BOSTON AND PROVIDENCE THAT, AS THE COURT CHARGED WITH
THE REORGANIZATION OF THAT ROAD (THE MASSACHUSETTS DISTRICT COURT) HAS
"EXCLUSIVE JURISDICTION" UNDER SEC. 77(A) "OF THE DEBTOR AND ITS
PROPERTY WHEREVER LOCATED," THE CONNECTICUT COURT CANNOT CONSIDER THE
CLAIMS OF THE NEW HAVEN AND OLD COLONY TRUSTEES FOR OPERATING DEFICITS
OR IMPOSE A LIEN ON THE BOSTON AND PROVIDENCE PROPERTY TO SECURE THEM. 

THE LEASE OF THE BOSTON AND PROVIDENCE TO THE OLD COLONY IS THE TYPE
OF LEASE COVERED BY THE ORDER OF JUNE 18, 1936, BY WHICH THE TRUSTEES
OF OLD COLONY WERE AUTHORIZED TO CHARGE OPERATING DEFICITS AGAINST THE
LESSOR IN THE EVENT OF SUBSEQUENT DISAFFIRMANCE OF THE LEASE. 

RAILROAD REORGANIZATION IN BANKRUPTCY IS A FIELD COMPLETELY WITHIN
THE AMBIT OF THE BANKRUPTCY POWERS OF CONGRESS.  FN3  UNDER THE
COMMERCE CLAUSE OF THE CONSTITUTION CONGRESS LIKEWISE HAS EXERCISED ITS
POWER TO PROVIDE FOR THE CONTINUED OPERATION OF INTERSTATE RAILROADS
SUCH AS PETITIONER.  FN4  THE FACT THAT THE OPERATOR OPERATES UNDER A
LEASE DOES NOT AFFECT THE FORCE OF THE REQUIREMENT THAT THE OPERATION
MUST CONTINUE UNTIL A CERTIFICATE PERMITTING ABANDONMENT IS ISSUED BY
THE INTERSTATE COMMERCE COMMISSION N5.  THE JUDICIAL FUNCTIONS OF THE
BANKRUPTCY COURT AND THE ADMINISTRATIVE FUNCTIONS OF THE COMMISSION
WORK COOPERATIVELY IN REORGANIZATIONS.  FN6 PROVISION IS MADE BY THE
BANKRUPTCY ACT  FN7  FOR THE OPERATION OF LEASED PROPERTY ON
SURRENDER.  IT IS UNDER THIS SUBSECTION THAT RESPONDENT CLAIMS TO HAVE
BECOME ENTITLED TO THE AMOUNT SOUGHT IN THE MOTION FOR ALLOWANCE AND
LIEN.  THIS SUBSECTION MODIFIES PRO TANTO THE RULE OF THE INTERSTATE
COMMERCE ACT FOR OPERATION. 

THE PROPERTY OF THE BOSTON AND PROVIDENCE CAME INTO THE POSSESSION OF
THE TRUSTEES OF THE NEW HAVEN AND THE OLD COLONY AND REMAINED THERE
DURING THE ENTIRE TIME COVERED BY THE CLAIM.  THESE ROADS WERE LESSEES
OF THE PROPERTY AND DEBTORS UNDER SEC. 77 IN THE CONNECTICUT COURT.  IT
IS IMMATERIAL WHAT TITLE THE DEBTORS HAD, WHETHER A LEASE OR A FEE. 
THE PHYSICAL PROPERTY COVERED BY THE LEASE WAS IN THE CUSTODY OF THE
CONNECTICUT COURT BY VIRTUE OF THE PROVISION OF SEC. 77(A).  FN8  BY
VIRTUE OF SUBDIVISIONS 77(C)(10) AND 77(C)(6)  FN9  IT IS CLEAR THAT
LEASEHOLDS ARE IN SOME INSTANCES TO BE OPERATED BY THE LESSEE'S
TRUSTEES. 

THIS COURT HAS HELD "UPON PRINCIPLES OF GENERAL APPLICATION" THAT
COURTS HAVING CUSTODY OF PROPERTY OR A FUND HAVE THE POWER "TO REQUIRE
THAT EXPENSES WHICH HAVE CONTRIBUTED EITHER TO THE PRESERVATION OR
CREATION OF THE FUND IN ITS CUSTODY SHALL BE PAID BEFORE A GENERAL
DISPOSITION AMONG THOSE ENTITLED TO RECEIVE IT."  FN10  SUCH A POWER
REPOSES IN ANY COURT CHARGED WITH CUSTODY OF PROPERTY.  IT IS AN IN REM
JURISDICTION SPRINGING FROM POSSESSION OF THE PROPERTY WHICH IS
NECESSARY IN ORDER THAT THE COURT MAY ADEQUATELY CARE FOR THE
PROPERTY.  THUS A COURT HAVING CUSTODY OF A SHIP IS ABLE TO SECURE
WHARFAGE BY VIRTUE OF ITS POWER TO DECREE A PREFERENTIAL PAYMENT.  FN11
AND HERE THE COURT IS ABLE TO CARRY OUT THE OPERATION OF THE BOSTON
AND PROVIDENCE BY PROMISING OR GRANTING A LIEN TO THOSE WHO CARRY OUT
THE OPERATION. 

IF THE CONNECTICUT COURT HAS POSSESSION OF THE PROPERTY AND OPERATED
IT UNDER SEC. 77(C)(6) FOR ITS OWNERS, COULD IT FIX A LIEN ON THE
PROPERTY AFTER ANOTHER BANKRUPTCY COURT TOOK THE ADMINISTRATION OF THE
PROPERTY?  BY SEC. 77(C)(6) RAILROADS IN REORGANIZATION WHICH HAD BEEN
OPERATING LINES UNDER LEASE WERE ALLOWED TO REJECT THE LEASE BUT
REQUIRED TO CONTINUE OPERATION OF THE LEASED LINES IF THE LESSOR HAD NO
ABILITY TO OPERATE.  THUS CONGRESS RECOGNIZED THE POSSIBLE OCCURRENCE
OF THE SITUATION NOW BEFORE US AND EVINCED A DESIRE THAT RAIL SERVICE
SHOULD NOT IN SUCH A CASE BE INTERRUPTED.  IN VIEW OF THE PUBLIC
IMPORTANCE OF RAIL SERVICE, WE THINK THIS SUBSECTION REPRESENTS AN
INTENTION TO GIVE THE COURT CHARGED WITH OPERATION THE FULLEST ABILITY
TO SECURE THE NECESSITIES OF OPERATION - AN INTENTION TO GIVE THE
OPERATING COURT POWER TO PROMISE THOSE HAVING THE MATERIALS, MEN AND
EQUIPMENT NEEDED FOR OPERATION A FIRST LIEN ON THE ROAD TO SECURE
PAYMENT FOR THE OPERATION.  FN12  THIS IN NO WAY IMPAIRS THE OPERATION
OF SEC. 77(A) WHICH GRANTS TO THE MASSACHUSETTS COURT, "DURING THE
PENDENCY OF THE PROCEEDINGS UNDER THIS SECTION AND FOR THE PURPOSES
THEREOF," "EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY
WHEREVER LOCATED."  THE "PURPOSES" OF SEC. 77 INCLUDE THE DEVELOPMENT
OF A "FAIR AND EQUITABLE"  FN13  PLAN OF REORGANIZATION.  THE
MASSACHUSETTS COURT IS LEFT WITH JURISDICTION TO ACCOMPLISH THIS, BUT
IS BOUND TO RECOGNIZE THE PRIORITY OF THE LIEN DECLARED BY THE
CONNECTICUT COURT.  BY SEC. 77(C)(6) THE CONNECTICUT COURT WAS GIVEN
JURISDICTION SO LONG AS IT CONTINUED TO OPERATE THE ROAD TO GRANT A
LIEN FOR OPERATING EXPENSES PRIOR TO ANY EXISTING CLAIMS AGAINST THE
ROAD.  THE DECISION OF THE COURT OF APPEALS THAT THE CONNECTICUT COURT
HAD JURISDICTION TO GRANT THE LIEN SOUGHT BY RESPONDENT IS AFFIRMED. 

FN1  11 U.S.C. SEC. 205. 

FN2  108 F.2D 164. 

FN3  CONTINENTAL BANK V. CHICAGO, R.I. & P. RY. CO., 294 U.S. 648,
667-675. 

FN4  INTERSTATE COMMERCE ACT, SEC. 1(18), AS AMENDED 49 U.S.C. SEC.
1(18): 

"EXTENSION OR ABANDONMENT OF LINES; CERTIFICATE REQUIRED.   -  ...
AND NO CARRIER BY RAILROAD SUBJECT TO THIS CHAPTER SHALL ABANDON ALL OR
ANY PORTION OF A LINE OF RAILROAD, OR THE OPERATION THEREOF, UNLESS AND
UNTIL THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE COMMISSION A
CERTIFICATE THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE AND NECESSITY
PERMIT OF SUCH ABANDONMENT."    FN5  CF. SEABOARD AIR LINE RAILWAYS
RECEIVERS PROPOSED ABANDONMENT, 202 I.C.C. 543; NORFOLK SOUTHERN R. CO.
RECEIVERS ABANDONMENT, 221 I.C.C. 258; MECK AND MASTEN, RAILROAD LEASES
AND REORGANIZATION:  I, 49 YALE L.J. 626. 

FN6  PALMER V. MASSACHUSETTS, 308 U.S. 79, 87, NOTE 14. 

FN7  SEC. 77(C)(6).  "IF A LEASE OF A LINE OF RAILROAD IS REJECTED,
AND IF THE LESSEE, WITH THE APPROVAL OF THE JUDGE, SHALL ELECT NO
LONGER TO OPERATE THE LEASED LINE, IT SHALL BE THE DUTY OF THE LESSOR
AT THE END OF A PERIOD TO BE FIXED BY THE JUDGE TO BEGIN THE OPERATION
OF SUCH LINE, UNLESS THE JUDGE, UPON THE PETITION OF THE LESSOR, SHALL
DECREE AFTER HEARING THAT IT WOULD BE IMPRACTICABLE AND CONTRARY TO THE
PUBLIC INTEREST FOR THE LESSOR TO OPERATE THE SAID LINE, IN WHICH EVENT
IT SHALL BE THE DUTY OF THE LESSEE TO CONTINUE OPERATION ON OR FOR THE
ACCOUNT OF THE LESSOR UNTIL THE ABANDONMENT OF SUCH LINE IS AUTHORIZED
BY THE COMMISSION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1 OF THE
INTERSTATE COMMERCE ACT AS AMENDED." 

FN8  THOMPSON V. MAGNOLIA PETROLEUM CO., 309 U.S. 478; EX PARTE
BALDWIN, 291 U.S. 610; CF. ISAACS V. HOBBS TIE & T. CO., 282 U.S. 734;
GREEN V. FINNEGAN REALTY CO., 70 F.2D 465, 466(C.C.A.5TH); IN RE
CHAMBERS, CALDER & CO., 98 F. 865(D.R.I.). 

FN9  SEC. 77(C)(10).  "THE JUDGE MAY DIRECT THE DEBTOR OR THE TRUSTEE
OR TRUSTEES TO KEEP SUCH RECORDS AND ACCOUNTS, IN ADDITION TO THE
ACCOUNTS PRESCRIBED BY THE COMMISSION, AS WILL PERMIT OF SUCH A
SEGREGATION AND ALLOCATION, AS THE NECESSITIES OF THE CASE MAY REQUIRE,
OF THE EARNINGS AND EXPENSES BETWEEN AND TO THE DIVISIONS AND PARTS OF
THE RAILROAD OR OTHER PROPERTY OF THE DEBTOR WHICH ARE SEPARATELY
SUBJECT TO THE LIENS OF THE VARIOUS MORTGAGES OR DEEDS OF TRUST, OR ARE
SEPARATELY SUBJECT TO LEASE, AND MAY REFER TO THE COMMISSION FOR ITS
RECOMMENDATIONS AFTER HEARINGS THEREON IF THE PARTIES SHALL SO REQUEST
AND/OR THE COMMISSION DETERMINE NECESSARY OR DESIRABLE, AS TO THE
METHOD OR FORMULA BY WHICH SUCH SEGREGATION AND ALLOCATION SHALL BE
MADE; AND THEREAFTER SUCH SEGREGATION AND ALLOCATION MAY BE MADE AT THE
EXPENSE OF THE DEBTOR'S ESTATE."  SEE NOTE 7. 

FN10  NEW YORK DOCK CO. V. THE POZNAN, 274 U.S. 117, 120, 121. 

FN11  IBID. 

FN12  IT MAY BE NOTED THAT CONGRESS DID NOT ADOPT THE RULE OF GROSS
V. IRVING TRUST CO., 289 U.S. 342, IN THIS SITUATION.  IN THE GROSS
CASE PROPERTY OF A DEBTOR HAD BEEN IN THE CUSTODY OF A STATE
RECEIVERSHIP COURT PRIOR TO THE DEBTOR'S ADJUDICATION IN ORDINARY
BANKRUPTCY.  IT WAS HELD THAT BECAUSE OF THE BANKRUPTCY COURT'S
PARAMOUNT JURISDICTION THE ADMINISTRATIVE EXPENSES OF THE RECEIVERSHIP
HAD TO BE PROVED IN BANKRUPTCY AND COULD NOT BE DECLARED A LIEN BY THE
RECEIVERSHIP COURT ON PROPERTY IN ITS CUSTODY. 

FN13  SEC. 77(E). 
..END :


















WYOMING V. COLORADO, 309 U.S. 572 


NO. 10, ORIGINAL, OCTOBER TERM, 1935.  ARGUED FEBRUARY 26, 27, 1940.  -
DECIDED APRIL 22, 1940. 


1.  THE DECREE OF THIS COURT IN THE LITIGATION BETWEEN WYOMING AND
COLORADO OVER THE LARAMIE RIVER LIMITS THE QUANTITY OF WATER WHICH
COLORADO MAY DIVERT FROM THE STREAM TO A MAXIMUM OF 39,750 ACRE FEET
PER ANNUM.  P. 576. 

2.  SO LONG AS THIS MAXIMUM IS NOT EXCEEDED, COLORADO REMAINS FREE TO
DETERMINE, BY HER LAWS AND ADJUDICATIONS, HOW THE WATER DIVERTED SHALL
BE DISTRIBUTED AND USED BY AND AMONG HER WATERUSERS.  PP. 579 ET SEQ. 

3.  THAT PORTION OF THE WATER ALLOCATED TO COLORADO WHICH WAS ALLOWED
ON THE BASIS OF THE "MEADOW LAND APPROPRIATIONS" WAS LIMITED BY THE
DECREE OF THIS COURT TO 4,250 ACRE FEET MEASURED AT THE POINT OF
DIVERSION FROM THE STREAM, THIS QUANTITY BEING DEEMED SUFFICIENT WHEN
THE WATER IS RIGHTLY AND NOT WASTEFULLY APPLIED.  P. 578. 

COLORADO'S CLAIM OF A RIGHT TO CONTINUE APPLYING MUCH LARGER
QUANTITIES TO THE MEADOWLAND IRRIGATION UPON THE GROUND THAT THE
GREATER PART OF THE WATER SO APPLIED RETURNS TO THE STREAM THROUGH
SURFACE DRAINAGE AND PERCOLATION, SO THAT THE PART ACTUALLY CONSUMED
DOES NOT EXCEED 4,250 ACRE FEET, WAS CONSIDERED AND REJECTED IN FIXING
THAT LIMIT TO THE MEADOW LAND APPROPRIATIONS. 

4.  UPON AN APPLICATION TO HAVE COLORADO ADJUDGED IN CONTEMPT FOR
HAVING WITHDRAWN MORE WATER FROM THE LARAMIE RIVER THAN THE 39,750 ACRE
FEET LIMITED BY THIS COURT'S DECREE, A DEFENSE UPON THE GROUND THAT
WYOMING WAS NOT INJURED IS INADMISSIBLE.  P. 581. 

5.  COLORADO, BEING CHARGED WITH HAVING MADE EXCESSIVE WITHDRAWALS OF
WATER FROM THE LARAMIE RIVER, IN CONTEMPT OF THIS COURT'S DECREE,
ADDUCED PROOF BY AFFIDAVITS, THAT THE WITHDRAWALS, MADE THROUGH THE
MEADOWLAND DITCHES, WERE ACQUIESCED IN BY WYOMING OFFICIALS, FOR THE
REASON THAT A GREAT PORTION OF THE WATER SO DIVERTED RETURNED TO THE
RIVER TO BE USED DOWNSTREAM BY WYOMING APPROPRIATORS.  WYOMING
PRESENTED AFFIDAVITS TO THE CONTRARY.  HELD:  THAT, IN THE LIGHT OF ALL
THE CIRCUMSTANCES, IT SUFFICIENTLY APPEARS THAT THERE WAS UNCERTAINTY
AND ROOM FOR MISUNDERSTANDING WHICH MAY BE CONSIDERED IN EXTENUATION;
BUT IN THE FUTURE THERE WILL BE NO GROUND FOR ANY POSSIBLE
MISAPPREHENSION BASED UPON VIEWS OF THE EFFECT OF THE MEADOWLAND
DIVERSIONS OR OTHERWISE WITH RESPECT TO THE DUTY OF COLORADO TO KEEP
HER TOTAL DIVERSIONS FROM THE LARAMIE RIVER AND ITS TRIBUTARIES WITHIN
THE LIMIT FIXED BY THE DECREE.  P. 581. 

WYOMING V. COLORADO. 

UPON A PETITION OF THE STATE OF WYOMING PRAYING THAT THE STATE OF
COLORADO BE ADJUDGED IN CONTEMPT FOR HAVING DIVERTED WATER FROM THE
LARAMIE RIVER IN EXCESS OF THE QUANTITY ALLOWED BY THE DECREE OF THIS
COURT; AND UPON RETURNS OF THE STATE OF COLORADO SUBMITTED IN RESPONSE
TO AN ORDER TO SHOW CAUSE.  SEE POST, P. 627. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE STATE OF WYOMING SOUGHT LEAVE TO FILE ITS PETITION FOR A RULE
REQUIRING THE STATE OF COLORADO TO SHOW CAUSE WHY IT SHOULD NOT BE
ADJUDGED IN CONTEMPT FOR VIOLATION OF THE DECREE IN THIS SUIT,
RESTRAINING DIVERSIONS OF WATER FROM THE LARAMIE RIVER.  259 U.S. 419,
496; 260 U.S. 1; 286 U.S. 494; 298 U.S. 573. 

IN RESPONSE, COLORADO ASKED THAT EVIDENCE BE TAKEN TO DETERMINE THE
AMOUNT OF RETURN FLOW TO THE LARAMIE RIVER FROM THE DIVERSIONS AT THE
HEADGATES OF MEADOWLAND DITCHES AND THAT COLORADO HAVE CREDIT
THEREFOR.  THIS MATTER HAD BEEN CONSIDERED BY THE COURT IN FRAMING ITS
DECREE (298 U.S. PP. 581, 582) AND THE MOTION WAS DENIED.  LEAVE WAS
GRANTED TO WYOMING TO FILE ITS PETITION AND COLORADO WAS DIRECTED TO
SHOW CAUSE ACCORDINGLY. 

TWO RETURNS HAVE BEEN FILED ON BEHALF OF COLORADO, ONE BY THE
GOVERNOR OF THE STATE SETTING FORTH HIS EXECUTIVE ORDER DIRECTING THE
WITHDRAWAL OF THE APPEARANCE OF THE ATTORNEY GENERAL AND APPOINTING
SPECIAL COUNSEL TO REPRESENT THE STATE, AND ANOTHER RETURN BY THE
ATTORNEY GENERAL WHO CHALLENGES THE AUTHORITY OF THE GOVERNOR TO
SUPERSEDE HIM.  IN THE VIEW WE TAKE OF THE MATERIAL MATTERS PRESENTED,
WE FIND NO SUCH DIFFERENCES BETWEEN THE TWO RETURNS AS TO REQUIRE US TO
DETERMINE THE QUESTION OF AUTHORITY. 

WYOMING CHARGES THAT FROM MAY 1, 1939, TO JUNE 18, 1939, COLORADO
DIVERTED FROM THE LARAMIE RIVER 39,865.43 ACRE FEET, THAT IS, SOMEWHAT
IN EXCESS OF THE TOTAL OF 39,750 ACRE FEET ALLOCATED TO COLORADO BY OUR
DECREE; THAT THEREUPON, AND ON JUNE 19, 1939, COLORADO CLOSED THE
HEADGATES OF THE VARIOUS DITCHES INVOLVED; THAT ON JUNE 22, 1939, IN
VIOLATION OF THE DECREE, COLORADO OPENED THE HEADGATES AND PERMITTED
THE DIVERSION BETWEEN JUNE 22, 1939, AND JULY 11, 1939, OF 12,673 ACRE
FEET IN EXCESS OF THE 39,750 ACRE FEET ALLOWED; AND THAT IN PARTICULAR,
WITH RESPECT TO MEADOWLAND DITCHES, COLORADO PERMITTED THE DIVERSION
BETWEEN MAY 1, 1939, AND JULY 11, 1939, OF 24,775 ACRE FEET ABOVE THE
4250 ACRE FEET (MEASURED AT THE HEADGATES) SPECIFICALLY ALLOWED FOR THE
MEADOWLAND APPROPRIATIONS.  298 U.S. P. 586. 

IN DEFENSE, COLORADO CONTENDS THAT THE MEADOWLAND DIVERSIONS IN
EXCESS OF 4250 ACRE FEET WERE IN ACCORDANCE WITH COLORADO LAW AND WERE
NOT INCONSISTENT WITH THE DECREE OF THIS COURT UNTIL A DIVERSION BY
COLORADO FROM THE LARAMIE RIVER FOR ALL PURPOSES REACHED THE ALLOCATED
TOTAL OF 39,750; THAT THE DIVERSION OF AN AMOUNT GREATER THAN THAT
TOTAL DURING THE PERIOD ABOVE SPECIFIED WAS WITH THE ACQUIESCENCE OF
WYOMING; AND THAT WYOMING HAS NOT BEEN INJURED. 

COLORADO PLEDGES THAT HEREAFTER ITS OFFICIALS WILL ADMINISTER THE
FLOW OF THE LARAMIE RIVER IN THAT STATE IN ACCORDANCE WITH COLORADO
LAWS AND ADJUDICATION DECREES UNTIL A TOTAL AMOUNT OF 39,750 ACRE FEET,
MEASURED AT THE HEADGATES, HAS BEEN DIVERTED, AND, WHEN THAT TOTAL HAS
BEEN REACHED IN ANY YEAR, COLORADO CAN AND WILL CLOSE THE HEADGATES AND
KEEP THEM CLOSED DURING THE REMAINDER OF THE IRRIGATION SEASON. 

IN SUPPORT OF THE CONTENTION THAT THE DIVERSION OF MORE THAN 4250
ACRE FEET FOR THE MEADOWLAND APPROPRIATIONS SHOULD NOT BE REGARDED AS A
VIOLATION OF OUR DECREE, IF THE AGGREGATE DIVERSIONS IN COLORADO DO NOT
EXCEED THE TOTAL ALLOWED, COLORADO PRESENTS A DECLARATORY JUDGMENT OF
THE DISTRICT COURT OF THAT STATE FOR THE COUNTY OF LARAMIE, ENTERED
FEBRUARY 2, 1939, IN THE SUIT OF ADELRICK BENZIGER V. THE WATER SUPPLY
& STORAGE COMPANY, ET AL. THAT SUIT WAS BROUGHT ON BEHALF OF THE
MEADOWLAND LAND APPROPRIATORS IN COLORADO, AND THE DEFENDANTS WERE THE
OTHER APPROPRIATORS IN THAT STATE WHOSE RESPECTIVE APPROPRIATIONS HAD
BEEN THE SUBJECT OF CONSIDERATION IN THE SUIT IN THIS COURT.  OUR
RULINGS WERE EXAMINED BY THE STATE COURT WHICH CONCLUDED THAT THEY WERE
INTENDED TO, AND DID, DETERMINE ONLY THE RELATIVE RIGHTS OF THE TWO
STATES TO DIVERT THE WATERS OF THE LARAMIE RIVER AND ITS TRIBUTARIES
AND THAT IT WAS NOT OUR PURPOSE TO WITHDRAW THE APPROPRIATIONS AND
WATER CLAIMS IN COLORADO FROM THE OPERATION OF ITS LOCAL LAWS OR TO
RESTRICT THE UTILIZATION OF THE WATERS IN ANY WAY "NOT AFFECTING THE
RIGHTS OF THE STATE OF WYOMING AND HER WATER CLAIMANTS."  ACCORDINGLY
THE STATE COURT HELD THAT THE FIXING IN OUR DECREE OF THE MEADOWLAND
APPROPRIATIONS WAS INTENDED ONLY TO BEAR UPON THE RELATIVE RIGHTS OF
THE STATES AND WAS NOT INTENDED TO BE AN ADJUDICATION OF THE RELATIVE
RIGHTS OF THE DECREED APPROPRIATIONS IN COLORADO; HENCE, THAT SO LONG
AS THE AGGREGATE OF THE WATER DIVERTED IN COLORADO DOES NOT EXCEED THE
TOTAL OF 39,750 ACRE FEET ACCREDITED TO THE COLORADO APPROPRIATIONS, AS
STATED, THEY ARE SUBJECT TO THE LAWS OF COLORADO.  IN THAT VIEW THE
COURT ADJUDGED THAT THE MEADOWLAND APPROPRIATORS AND THE DEFENDANT
APPROPRIATORS WERE ENTITLED TO DIVERT ACCORDING TO THEIR RESPECTIVE
PRIORITIES UNTIL THEY REACHED THE AMOUNT OF 39,750 ACRE FEET, AND THAT
WHEN THAT AMOUNT HAD BEEN DIVERTED "ALL HEADGATES ARE TO BE CLOSED FOR
THE BALANCE OF THE SEASON." 

A REVIEW OF OUR DECISIONS CONFIRMS THE CONSTRUCTION THUS PLACED UPON
THEM.  SUIT WAS BROUGHT IN 1911 TO PREVENT A PROPOSED DIVERSION IN
COLORADO OF THE WATERS OF THE LARAMIE RIVER, AN INTERSTATE STREAM. 
VOLUMINOUS EVIDENCE WAS TAKEN, THE CASE WAS THRICE ARGUED, AND A FINAL
DECISION WAS RENDERED IN 1922.  259 U.S. 419.  AFTER AN ELABORATE
CONSIDERATION OF THE PHYSICAL FEATURES OF THE REGION AND THE PRINCIPLES
APPLICABLE TO A DETERMINATION OF THE RIGHTS OF THE RESPECTIVE STATES,
THE COURT CONCLUDED THAT AS BOTH STATES HAD ADOPTED THE DOCTRINE OF
APPROPRIATION, IT WAS EQUITABLE TO APPLY THAT DOCTRINE AND TO DETERMINE
THEIR RESPECTIVE RIGHTS ACCORDING TO THE RULE OF PRIORITY.  THE COURT
EXAMINED THE EVIDENCE WITH RESPECT TO THE FLOW OF THE STREAM, ITS
VARIATIONS, AND OTHER RELEVANT MATTERS, AND FOUND THAT THE AVAILABLE
SUPPLY - 288,000 ACRE FEET - WAS NOT SUFFICIENT TO SATISFY THE WYOMING
APPROPRIATIONS AND ALSO THE PROPOSED COLORADO APPROPRIATION.  THE COURT
FOUND THAT THERE WERE SOME EXISTING COLORADO APPROPRIATIONS ENTITLED TO
PRECEDENCE OVER MANY OF THOSE IN WYOMING.  THESE INCLUDED 18,000 ACRE
FEET FOR WHAT WAS KNOWN AS THE SKYLINE DITCH AND 4250 ACRE FEET FOR
MEADOWLAND APPROPRIATORS.  THESE WERE NOT TO BE DEDUCTED, AS THE
288,000 ACRE FEET WAS THE AVAILABLE SUPPLY AFTER THEY WERE SATISFIED. 
THE PROPOSED COLORADO APPROPRIATION WHICH WAS IN CONTROVERSY IN THE
SUIT WAS THAT KNOWN AS THE LARAMIE-POUDRE TUNNEL DIVERSION, A PART OF
AN IRRIGATION PROJECT KNOWN AS THE LARAMIE-POUDRE PROJECT.  THE
EVIDENCE SHOWED THAT THE WYOMING APPROPRIATIONS HAVING PRIORITIES
SENIOR TO THE ONE IN COLORADO, AND WHICH WERE DEPENDENT ON THE
AVAILABLE SUPPLY ABOVE SPECIFIED, REQUIRED 272,500 ACRE FEET. 
DEDUCTING THAT FROM THE AVAILABLE 288,000 ACRE FEET THERE REMAINED
15,500 ACRE FEET WHICH WERE SUBJECT TO THE PROPOSED APPROPRIATION IN
COLORADO.  ACCORDINGLY A DECREE WAS ENTERED ENJOINING THE DEFENDANTS
FROM DIVERTING MORE THAN 15,500 ACRE FEET ANNUALLY FROM THE LARAMIE
RIVER THROUGH THE LARAMIE-POUDRE PROJECT.  THE DECREE PROVIDED THAT IT
SHOULD NOT PREJUDICE THE RIGHT OF COLORADO, OR OF ANYONE RECOGNIZED BY
HER AS ENTITLED THERETO, TO CONTINUE TO DIVERT 18,000 ACRE FEET THROUGH
THE SKYLINE DITCH AND 4250 ACRE FEET THROUGH THE MEADOWLAND
APPROPRIATIONS.  259 U.S. PP. 496, 497.  SOON AFTER, THIS DECREE WAS
MODIFIED SO AS NOT TO PREJUDICE A DIVERSION BY COLORADO FOR THE WILSON
SUPPLY DITCH (260 U.S. 1), A DIVERSION WHICH AMOUNTED TO 2000 ACRE
FEET.  298 U.S. P. 580.  IN THIS WAY THE TOTAL ALLOWED TO COLORADO
AMOUNTED TO 39,750 ACRE FEET. 

IN 1931, WYOMING BROUGHT ANOTHER SUIT IN THIS COURT, ALLEGING THAT
COLORADO WAS PERMITTING EXCESSIVE DIVERSIONS AND SEEKING THE PROTECTION
AND QUIETING OF WYOMING'S RIGHTS UNDER THE FORMER DECREE.  WYOMING
ASKED PROVISION FOR ACCURATELY MEASURING AND RECORDING THE QUANTITIES
OF WATER DIVERTED AND ALSO AN INJUNCTION RESTRAINING EXCESSIVE
DIVERSIONS, IF IT WERE HELD THAT THE FORMER DECREE RELATED ONLY TO THE
DIVERSION BY THE LARAMIE-POUDRE TUNNEL APPROPRIATION.  MOTION TO
DISMISS THE BILL WAS DENIED.  WE HELD THAT THE FORMER DECREE SHOULD BE
TAKEN AS DETERMINING THE RELATIVE RIGHTS OF THE TWO STATES, INCLUDING
THEIR RESPECTIVE CITIZENS, TO DIVERT AND USE THE WATERS OF THE LARAMIE
AND ITS TRIBUTARIES; THAT THE LIMITED INJUNCTION DID NOT WARRANT AN
INFERENCE THAT IT MARKED "THE LIMITS OF WHAT WAS INTENDED TO BE
DECIDED," BUT THAT THE DECREE DID DEFINE THE QUANTITY OF WATER WHICH
COLORADO AND HER APPROPRIATORS MIGHT DIVERT "FROM THE INTERSTATE STREAM
AND ITS TRIBUTARIES AND THUS WITHHOLD FROM WYOMING AND HER
APPROPRIATORS."  286 U.S. 494, 506-508. 

FINAL HEARING WAS HAD AND THE CASE WAS DECIDED IN 1936.  298 U.S.
573.  WYOMING CONTENDED THAT WHILE THE DECREE FIXED THE AMOUNT OF THE
DIVERSIONS UNDER THE MEADOWLAND APPROPRIATIONS IN COLORADO AT 4250 ACRE
FEET, THE ACTUAL DIVERSIONS HAD RANGED FROM 36,000 TO 62,000 ACRE
FEET.  COLORADO ANSWERED THAT THE GREATER PART OF THIS WATER WAS
RETURNED TO THE STREAM THROUGH SURFACE DRAINAGE AND PERCOLATION AND
THAT THE PART ACTUALLY CONSUMED DID NOT EXCEED THE AMOUNT WHICH THE
DECREE ALLOWED.  THE COURT SAID THAT THE AMOUNT OF 4250 ACRE FEET HAD
BEEN FIXED AS THE MEASURE OF THE MEADOWLAND APPROPRIATIONS BECAUSE IT
WAS DEEMED SUFFICIENT FOR THAT PURPOSE "WHEN THE WATER IS RIGHTLY AND
NOT WASTEFULLY APPLIED."  THE COURT REFERRED TO THE WASTEFUL PROCESS
THAT HAD BEEN USED.  IT WAS SAID THAT WHEN WATER IS SO APPLIED A
CONSIDERABLE PORTION ULTIMATELY FINDS ITS WAY BACK INTO THE STREAM, BUT
THAT IT WAS ALSO TRUE "THAT A MATERIAL PERCENTAGE OF THE WATER IS LOST
BY EVAPORATION AND OTHER NATURAL PROCESSES AND THERE IS NO WAY OF
DETERMINING WITH EVEN APPROXIMATE CERTAINTY HOW MUCH OF THE WATER
RETURNS TO THE STREAM."  THE COURT THEN HELD THAT THE DECREE REFERRED
TO THE WATER TAKEN FROM THE STREAM "AT THE POINT OF DIVERSION, AND NOT
TO THE VARIABLE AND UNCERTAIN PART OF IT THAT IS CONSUMPTIVELY USED." 
AS IT WAS PLAINLY SHOWN THAT DIVERSIONS WERE BEING MADE UNDER THE
MEADOWLAND APPROPRIATIONS IN QUANTITIES LARGELY IN EXCESS OF THE AMOUNT
FIXED IN THE DECREE, AN INJUNCTION ISSUED FORBIDDING FURTHER DEPARTURES
FROM THE DECREE IN THAT REGARD.  ID., PP. 581, 582. 

WITH RESPECT TO THE REQUEST FOR AN ORDER PERMITTING WYOMING TO
INSTALL MEASURING DEVICES FOR THE PURPOSE OF DETERMINING THE AMOUNT OF
WATER DIVERTED IN COLORADO, THE COURT RECOGNIZED THAT THE PROBLEM OF
MEASURING AND RECORDING THE DIVERSIONS WAS A DIFFICULT ONE AND THE HOPE
WAS EXPRESSED THAT THE TWO STATES BY COOPERATIVE EFFORTS WOULD FIND A
SATISFACTORY SOLUTION.  LEAVE WAS GRANTED TO WYOMING TO MAKE A LATER
APPLICATION IF THE STATES WERE UNABLE TO AGREE.  ID., PP. 585, 586.  IT
SEEMS THAT MEASURING DEVICES HAVE BEEN INSTALLED. 

WHILE AN INJUNCTION WAS THUS GRANTED WITH RESPECT TO DIVERSIONS FOR
THE MEADOWLAND APPROPRIATIONS IN EXCESS OF 4250 ACRE FEET, THIS WAS
MANIFESTLY UPON THE ASSUMPTION THAT COLORADO WAS OTHERWISE USING THE
TOTAL AMOUNT OF WATER ALLOCATED TO THAT STATE.  THAT IT WAS NOT
INTENDED TO RESTRICT COLORADO IN DETERMINING THE USE OF THE WATER OF
THE RIVER, ACCORDING TO COLORADO LAWS AND ADJUDICATIONS, PROVIDED THE
DIVERSIONS DID NOT EXCEED THE AGGREGATE AMOUNT OF 39,750 ACRE FEET TO
WHICH COLORADO WAS ENTITLED, IS CLEAR FROM THE RULING UPON ANOTHER
BRANCH OF THE CASE.  IT APPEARED THAT THE DIVERSION FOR THE SKYLINE
DITCH HAD BEEN ABOVE THE AMOUNT ALLOWED THEREFOR, BUT THAT OTHER
DIVERSIONS WERE LESS, SO THAT, ELIMINATING THE EXCESSIVE MEADOWLAND
DIVERSIONS, THE AGGREGATE ALLOWANCE TO THE STATE WOULD NOT BE
EXCEEDED.  HENCE THE COURT FOUND THAT IT MUST CONSIDER COLORADO'S
CONTENTION "THAT, CONSISTENTLY WITH THE DECREE, SHE LAWFULLY MAY PERMIT
DIVERSIONS UNDER ANY OF THE RECOGNIZED APPROPRIATIONS IN EXCESS OF ITS
ACCREDITED QUANTITY, SO LONG AS THE TOTAL DIVERSIONS UNDER ALL DO NOT
EXCEED THE AGGREGATE OF THE QUANTITIES ACCREDITED TO THEM SEVERALLY." 
ID., P. 583. 

THE COURT NOTED THAT IN BOTH COLORADO AND WYOMING WATER RIGHTS WERE
TRANSFERABLE AND THAT THE USE OF THE WATER MAY BE CHANGED FROM THE
IRRIGATION OF ONE TRACT TO THE IRRIGATION OF ANOTHER, IF THE CHANGE
DOES NOT INJURE OTHER APPROPRIATORS; THAT THESE RULES WERE BUT
INCIDENTAL TO THE DOCTRINE OF APPROPRIATION, PREVAILING IN BOTH STATES,
UPON WHICH THE DECREE HAD BEEN BASED.  THE COURT OBSERVED THAT IT WAS
NOT ITS PURPOSE "TO WITHDRAW WATER CLAIMS DEALT WITH THEREIN FROM THE
OPERATION OF LOCAL LAWS RELATING TO THEIR TRANSFER OR TO RESTRICT THEIR
UTILIZATION IN WAYS NOT AFFECTING THE RIGHTS OF ONE STATE AND HER
CLAIMANTS AS AGAINST THE OTHER STATE AND HER CLAIMANTS."  IT WAS FOUND
THAT THE DIVERSIONS THROUGH THE TRANSMOUNTAIN DITCHES HAD BEEN MADE
WITH THE CONSENT OF THE OWNERS OF THE WATER RIGHTS AND WITH THE FULL
SANCTION OF COLORADO, AND HENCE THE SITUATION WAS NOT DIFFERENT FROM
WHAT IT WOULD HAVE BEEN IF THE OWNERS OF OTHER CLAIMS HAD FORMALLY
TRANSFERRED PARTS OF THEIR WATER RIGHTS TO THE SKYLINE OWNERS.  THE
COURT SAID:  "BUT THE SKYLINE OWNERS ARE NOW PERMITTED BY THE OWNERS OF
THE OTHER CLAIMS AND BY COLORADO TO TAKE AND USE PART OF THE WATERS
INCLUDED IN THOSE CLAIMS.  WYOMING AND HER CLAIMANTS ARE IN NO WAY
INJURED BY THIS.  NO DEPARTURE FROM THE DECREE IS INVOLVED.  THE THING
WHICH THE DECREE RECOGNIZES AND CONFIRMS IS 'THE RIGHT OF THE STATE OF
COLORADO, OR OF ANYONE RECOGNIZED BY HER AS DULY ENTITLED THERETO,  ...
TO DIVERT AND TAKE' THE WATER INCLUDED IN THE DESIGNATED
APPROPRIATIONS."  THE COURT CONCLUDED THAT IN THE CIRCUMSTANCES SHOWN
THE SKYLINE DITCH DIVERSIONS DID NOT CONSTITUTE AN INFRACTION OF THE
DECREE.  ID., PP. 584, 585. 

IT IS PLAIN THAT THE PRINCIPLE OF THIS RULING, AS APPLIED TO THE
TRANSMOUNTAIN APPROPRIATIONS WHICH DIVERTED THE WATER OF THE LARAMIE
RIVER TO ANOTHER WATERSHED, WOULD CERTAINLY ALSO APPLY TO THE
MEADOWLAND APPROPRIATIONS WITHIN THE SAME WATERSHED, WHERE PART OF THE
WATER DIVERTED MAY FIND ITS WAY BACK TO THE STREAM.  THE LIMITATION OF
THE MEADOWLAND APPROPRIATIONS TO 4250 ACRE FEET WAS TO KEEP THE
DIVERSIONS IN COLORADO WITHIN THE AMOUNT ALLOWED TO THAT STATE, NOT TO
PREVENT THE DISTRIBUTION OF THE WATER THUS ALLOWED, ACCORDING TO
COLORADO LAWS, WHERE THERE WAS NO INFRACTION OF THE RIGHTS OF WYOMING
AND HER WATER CLAIMANTS. 

WE CONCLUDE THAT THE DECREE IS NOT VIOLATED IN ANY SUBSTANTIAL SENSE
SO LONG AS COLORADO DOES NOT DIVERT FROM THE LARAMIE RIVER AND ITS
TRIBUTARIES MORE THAN 39,750 ACRE FEET PER ANNUM. 

IN 1939, HOWEVER, COLORADO DIVERTED MORE THAN THAT TOTAL AMOUNT. 
APPARENTLY NO QUESTION HAD BEEN RAISED BY WYOMING AS TO THE DIVERSIONS
IN 1937 AND 1938.  IT IS UNDISPUTED THAT WHEN THE DIVERSIONS IN 1939
REACHED 39,865.43 ACRE FEET ON JUNE 19TH, COLORADO CLOSED THE HEADGATES
OF THE VARIOUS APPROPRIATIONS WITHIN THAT STATE.  BUT WYOMING ALLEGES
THAT COLORADO WRONGFULLY PERMITTED THE HEADGATES TO BE REOPENED ON JUNE
22D AND TO REMAIN OPEN UNTIL JULY 11TH, THUS PERMITTING THE DIVERSION
OF 12,673 ACRE FEET IN EXCESS OF THE AGGREGATE AMOUNT ALLOWED TO
COLORADO, DESPITE WYOMING'S PROTEST.  THAT THERE WAS THIS EXCESSIVE
DIVERSION IS NOT CONTROVERTED. 

COLORADO INSISTS THAT WYOMING HAS NOT BEEN INJURED.  BUT SUCH A
DEFENSE IS NOT ADMISSIBLE.  AFTER GREAT CONSIDERATION, THIS COURT FIXED
THE AMOUNT OF WATER FROM THE LARAMIE RIVER AND ITS TRIBUTARIES TO WHICH
COLORADO WAS ENTITLED.  COLORADO IS BOUND BY THE DECREE NOT TO PERMIT A
GREATER WITHDRAWAL AND, IF SHE DOES SO, SHE VIOLATES THE DECREE AND IS
NOT ENTITLED TO RAISE ANY QUESTION AS TO INJURY TO WYOMING WHEN THE
LATTER INSISTS UPON HER ADJUDICATED RIGHTS.  IF NOTHING FURTHER WERE
SHOWN, IT WOULD BE OUR DUTY TO GRANT THE PETITION OF WYOMING AND TO
ADJUDGE COLORADO IN CONTEMPT FOR HER VIOLATION OF THE DECREE. 

BUT COLORADO INSISTS THAT THE DIVERSION OF MORE THAN THE ALLOCATED
TOTAL DURING THE SEASON OF 1939 WAS WITH WYOMING'S ACQUIESCENCE.  THAT
IS THE SOLE AVAILABLE DEFENSE.  TO SUPPORT IT, COLORADO HAS PRESENTED
AFFIDAVITS SHOWING COMMUNICATIONS BETWEEN AN ASSOCIATION OF MEADOWLAND
APPROPRIATORS AND THE SPECIAL HYDROGRAPHER OF WYOMING AND ALSO STATING
THAT AT A CONFERENCE IN THE OFFICE OF THE GOVERNOR OF COLORADO ON JULY
1, 1939, THE OFFICERS OF WYOMING SAID THAT THEY HAD NO OBJECTION TO
CONTINUED DIVERSIONS BEING MADE THROUGH THE MEADOWLAND DITCHES FOR THE
REASON THAT A GREAT PORTION OF THE WATER SO DIVERTED RETURNED TO THE
LARAMIE RIVER TO BE USED DOWNSTREAM BY WYOMING APPROPRIATORS.  WYOMING
PRESENTS AFFIDAVITS TO THE CONTRARY, SETTING FORTH HER DEMANDS.  IT IS
UNNECESSARY TO REVIEW IN DETAIL THE POINTS IN CONTROVERSY.  IN THE
LIGHT OF ALL THE CIRCUMSTANCES, WE THINK IT SUFFICIENTLY APPEARS THAT
THERE WAS A PERIOD OF UNCERTAINTY AND ROOM FOR MISUNDERSTANDING WHICH
MAY BE CONSIDERED IN EXTENUATION.  IN THE FUTURE THERE WILL BE NO
GROUND FOR ANY POSSIBLE MISAPPREHENSION BASED UPON VIEWS OF THE EFFECT
OF THE MEADOWLAND DIVERSIONS OR OTHERWISE WITH RESPECT TO THE DUTY OF
COLORADO TO KEEP HER TOTAL DIVERSIONS FROM THE LARAMIE RIVER AND ITS
TRIBUTARIES WITHIN THE LIMIT FIXED BY THE DECREE. 

FOR THE REASONS STATED, THE PETITION OF WYOMING IS DENIED, THE COSTS
TO BE EQUALLY DIVIDED.  PETITION DENIED. 
..END :







WESTERN UNION CO. V. NESTER, 309 U.S. 582 


NO. 597.  ARGUED MARCH 8, 1940.  - DECIDED APRIL 22, 1940.  - 106 F.2D
587, REVERSED. 


A TELEGRAPH COMPANY UNDERTOOK TO TRANSMIT A MONEY ORDER, THE CONTRACT
PROVIDING THAT IT SHOULD NOT BE LIABLE FOR DAMAGES FOR DELAY OR NON
PAYMENT, THOUGH DUE TO NEGLIGENCE, "BEYOND THE SUM OF FIVE HUNDRED
DOLLARS, AT WHICH AMOUNT THE RIGHT TO HAVE THIS MONEY ORDER PROMPTLY
AND CORRECTLY TRANSMITTED AND PROMPTLY AND FULLY PAID IS HEREBY
VALUED."  HELD, THAT THE SUM SPECIFIED WAS NOT INTENDED TO PRESCRIBE A
DEFINITE LIABILITY (LIQUIDATED DAMAGES), BUT IS A LIMITATION UPON THE
MAXIMUM PERMISSIBLE RECOVERY FOR ACTUAL LOSS OR DAMAGE PROPERLY ALLEGED
AND SHOWN BY EVIDENCE.  P. 587. 

WESTERN UNION TELEGRAPH COMPANY V. NESTER ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 643, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST A TELEGRAPH COMPANY IN AN ACTION FOR BREACH OF A MONEY ORDER
CONTRACT.  25 F.SUPP.  478. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, NESTER AND CHARLES, ARE PARTNERS IN MINING OPERATIONS
NEAR ARAMECINA, REPUBLIC OF HONDURAS.  SEPTEMBER 1, 1937, AT LOS
ANGELES, CALIFORNIA, PETITIONER, THE TELEGRAPH COMPANY, IN THE ORDINARY
COURSE OF BUSINESS, RECEIVED FROM NESTER ONE HUNDRED AND FIFTY DOLLARS
FOR TRANSMISSION BY UNREPEATED MESSAGE AND DELIVERY TO CHARLES AT
ARAMECINA.  IT FAILED SO TO DO. 

IN A "COMPLAINT FOR DAMAGES FOR BREACH OF DUTY" FILED AGAINST
PETITIONER IN THE DISTRICT COURT, SOUTHERN DISTRICT, CALIFORNIA,
RESPONDENTS CLAIMED THE FAILURE TO DELIVER RESULTED FROM GROSS
NEGLIGENCE AND THAT AS A DIRECT CONSEQUENCE THEY SUFFERED SPECIFIED
LOSSES AMOUNTING TO $7,600.  FOR THAT SUM THEY ASKED JUDGMENT. 

PETITIONER DENIED LIABILITY AND AS AN AFFIRMATIVE DEFENSE ALLEGED - 

"THE MONEY ORDER REFERRED TO IN THE PLAINTIFF'S COMPLAINT WAS
DELIVERED TO AND ACCEPTED BY THE DEFENDANTS SUBJECT TO THE TERMS OF THE
STANDARD MONEY ORDER CONTRACT OF THE WESTERN UNION TELEGRAPH COMPANY, A
COPY OF WHICH IS HERETO ANNEXED." 

IT IS NOT NOW DENIED THAT THIS STANDARD FORM HAD BEEN DULY FILED WITH
THE FEDERAL COMMUNICATIONS COMMISSION AND WAS TREATED BY THE PARTIES AS
A STATEMENT OF THE CONTRACT BETWEEN THEM.  CERTAIN OF THE CONDITIONS
CONTAINED THEREIN ARE PRINTED BELOW.  FN1 

THE POINT FOR DETERMINATION HERE ARISES OUT OF THE FOLLOWING
CONDITION - 

"IN ANY EVENT, THE COMPANY SHALL NOT BE LIABLE FOR DAMAGES FOR DELAY,
NON-PAYMENT OR UNDERPAYMENT OF THIS MONEY ORDER, WHETHER BY REASON OF
NEGLIGENCE ON THE PART OF ITS AGENTS OR SERVANTS OR OTHERWISE, BEYOND
THE SUM OF FIVE HUNDRED DOLLARS, AT WHICH AMOUNT THE RIGHT TO HAVE THIS
MONEY ORDER PROMPTLY AND CORRECTLY TRANSMITTED AND PROMPTLY AND FULLY
PAID IS HEREBY VALUED, UNLESS A GREATER VALUE IS STATED IN WRITING ON
THE FACE OF THIS APPLICATION AND AN ADDITIONAL SUM PAID OR AGREED TO BE
PAID BASED ON SUCH VALUE EQUAL TO ONE-TENTH OF ONE PER CENT THEREOF." 

THE CAUSE WAS TRIED BY THE COURT WITHOUT A JURY UPON THE PLEADINGS
AND EVIDENCE.  IT FOUND AS MATTER OF FACT 

"THAT IT IS NOT TRUE THAT BY REASON OF THE FAILURE OF THE DEFENDANT,
WESTERN UNION TELEGRAPH COMPANY, TO TRANSMIT AND TO DELIVER AND TO PAY
PROMPTLY SAID MONEY ORDER AS AFORESAID, THE PLAINTIFFS HAVE SUFFERED
DAMAGES IN THE SUM OF SEVENTY-SIX HUNDRED ($7,600.00) DOLLARS; THE
COURT FINDS, HOWEVER, THAT BY REASON OF SUCH FAILURE, THE PLAINTIFFS
HAVE SUFFERED AND SUSTAINED DAMAGES, LOSS AND INJURY IN THE SUM OF FIVE
HUNDRED ($500.00) DOLLARS." 

EVIDENTLY IT WAS NOT INTENDED BY THIS FINDING TO DECLARE ACTUAL
DAMAGES HAD BEEN SHOWN, AS RESPONDENTS' COUNSEL SUGGEST.  AFTER
POINTING OUT THE LACK OF ANY EVIDENCE OF ACTUAL LOSS RESULTING FROM THE
ALLEGED NEGLIGENCE, THE COURT'S OPINION ASSERTS - "SO THAT, ASSUMING
THAT THE ACTION IS IN TORT, THERE IS NO SUBSTANTIAL PROOF OF ANY OF THE
SPECIAL DAMAGES CLAIMED.  HOWEVER, THE PLAINTIFFS ARE NOT WITHOUT
REDRESS." 

THE COURT FOUND AS MATTER OF LAW "THAT THE CONDITION ON THE
APPLICATION FOR THE TRANSMISSION OF THE MONEY ORDER FILED BY THE
WESTERN UNION TELEGRAPH COMPANY WITH THE FEDERAL COMMUNICATIONS
COMMISSION LIMITING ITS LIABILITIES TO FIVE HUNDRED ($500) DOLLARS IS A
VALID UNDERTAKING.  THAT PAUL NESTER AND JUAN CHARLES, CO-PARTNERS
PLAINTIFF ARE ENTITLED TO RECOVER THE AMOUNT OF FIVE HUNDRED DOLLARS
($500.00) AGAINST THE WESTERN UNION TELEGRAPH COMPANY  ...  WITHOUT
PREJUDICE TO THEIR RIGHT TO SUE FOR AND RECOVER THE ONE HUNDRED AND
FIFTY ($150) DOLLARS" ACCEPTED FOR TRANSMISSION. 

THE CONDITION RELATIVE TO LIABILITY FOR $500.00, QUOTED ABOVE, WAS
CONSTRUED BY THE TRIAL COURT AS "A PROVISION FOR LIQUIDATED DAMAGES,
WHICH ENTITLED THE SENDER TO RECOVERY OF THE MINIMUM AMOUNT OF FIVE
HUNDRED DOLLARS IN THE ABSENCE OF ANY PROOF OR WITHOUT ANY OFFER OF
PROOF."  AND IT SAID, "HENCE ALTHOUGH WE ARE UNABLE TO AWARD TO THE
PLAINTIFFS THE SPECIAL DAMAGES THEY ASK, THEY ARE ENTITLED, UNDER THE
FACTS ALLEGED AND PROVED, TO THE SUM STIPULATED AS LIQUIDATED DAMAGES
IN THE CONTRACT.  ...  HERE THE PLAINTIFFS, UNDER THE FACTS ALLEGED IN
THE COMPLAINT AND PROVED AT THE TRIAL, HAVE SHOWN THEMSELVES ENTITLED
TO RECOVERY, EVEN THOUGH THEY WERE UNABLE TO PROVE THE DAMAGES THEY
SOUGHT."  25 F.SUPP.  478. 

THE JUDGMENT AGAINST PETITIONER WAS AFFIRMED BY THE CIRCUIT COURT OF
APPEALS.  106 F.2D 587.  THE OPINION THERE DECLARES - 

"APPELLANT CONTENDS THAT THE PROVISION IN THE MONEY ORDER BLANK WAS A
PART OF THE TARIFF FILED WITH THE INTERSTATE COMMERCE COMMISSION, AND
AS SUCH LIMITED THE DAMAGES RECOVERABLE TO THE ACTUAL DAMAGE, NOT
EXCEEDING $500, AND THAT WITHOUT ACTUAL DAMAGE THERE COULD BE NO
RECOVERY.  THE QUESTION PRESENTED IS ONE OF INTERPRETATION OF THE
PROVISION, NOT OF VALIDITY THEREOF." 

ALSO - "HERE, THE PROVISION IN QUESTION HAS A LIMITATION OF LIABILITY
CLAUSE - 'THE COMPANY SHALL NOT BE LIABLE FOR DAMAGES  ...  BEYOND THE
SUM OF FIVE HUNDRED DOLLARS.'  THE PROVISION ALSO CONTAINED A CLAUSE BY
WHICH IT WAS AGREED THAT 'THE RIGHT TO HAVE THIS MONEY ORDER PROMPTLY
AND CORRECTLY TRANSMITTED AND PROMPTLY AND FULLY PAID IS HEREBY VALUED'
AT $500.  ALTHOUGH APPELLANT CONTENDS THAT THE CLAUSE MEANS THAT SUCH
RIGHT IS VALUED AT NOT 'BEYOND THE SUM OF' $500, THE CLAUSE DOES NOT SO
STATE.  IT STATES THAT SUCH RIGHT IS VALUED AT $500." 

"WHEN NESTER DELIVERED THE $150 TO APPELLANT, HE HAD THE RIGHT TO
HAVE THE MONEY TRANSMITTED WITHOUT UNREASONABLE DELAY (WESTERN U.
TELEG.  CO. V. CROVO, 220 U.S. 354) AND DELIVERED TO CHARLES.  MOORE V.
NEW YORK COTTON EXCHANGE, 270 U.S. 593.  BECAUSE OF APPELLANT'S ACTS,
THAT RIGHT WAS DESTROYED, AND NESTER IS ENTITLED TO RECOVER ITS VALUE,
WHICH THE PARTIES AGREED WAS $500." 

BY ITS PETITION FOR CERTIORARI THE TELEGRAPH COMPANY PRESENTS A
SINGLE QUESTION - "DOES THE LIMITATION OF LIABILITY PROVISION IN
PETITIONER'S MONEY ORDER TARIFF - WHICH IS SUBSTANTIALLY THE SAME AS
THAT IN ITS TELEGRAPH TARIFF - CONSTITUTE A LIQUIDATED DAMAGE PROVISION
WHICH WOULD AUTOMATICALLY MAKE PETITIONER LIABLE FOR DAMAGES IN THE
FIXED SUM OF $500, IN CASE OF DEFAULT IN SERVICE, REGARDLESS OF WHETHER
OR NOT THE SENDER HAD SUSTAINED ANY ACTUAL DAMAGE, OR IS THE PROVISION
RATHER ONE WHICH FIXES A MAXIMUM LIMIT WITHIN WHICH DAMAGES MAY BE
PROVED?" 

WE THINK THE PROVISION IN QUESTION WAS NOT INTENDED TO PRESCRIBE A
DEFINITE LIABILITY (LIQUIDATED DAMAGES), BUT IS A LIMITATION UPON THE
MAXIMUM PERMISSIBLE RECOVERY FOR ACTUAL LOSS OR DAMAGE PROPERLY ALLEGED
AND SHOWN BY EVIDENCE.  THE COURTS BELOW ERRED IN RULING OTHERWISE. 

CONSIDERING WHAT HAS BEEN RULED IN WESTERN UNION TELEGRAPH CO. V.
ESTEVE BROS. & CO. (1921), 256 U.S. 566; WESTERN UNION TELEGRAPH CO. V.
CZIZEK (1924), 264 U.S. 281; WESTERN UNION TELEGRAPH CO. V. PRIESTER
(1928), 276 U.S. 252, THE VALIDITY OF THE CONDITION BEFORE US IS NOT
OPEN TO SERIOUS DOUBT; AND VIEWED IN THE LIGHT OF ITS HISTORY AND
EVIDENT PURPOSE IT MUST BE INTERPRETED AS IMPOSING A LIMITATION UPON
THE AMOUNT WHICH MAY BE RECOVERED.  SEE, UNREPEATED MESSAGE CASE, 44
I.C.C. 670, 675, AND LIMITATIONS OF LIABILITY IN TRANSMITTING
TELEGRAMS, 61 I.C.C. 541, 550. 

THE INTERPRETATION OF THE CONDITION APPROVED BELOW WOULD PERMIT A
RECOVERY OF FIVE HUNDRED DOLLARS IRRESPECTIVE OF THE SUM DEPOSITED FOR
TRANSMISSION AND WITHOUT REQUIRING THE SENDER TO SHOW ANY LOSS
WHATSOEVER.  A MERE FAILURE TO TRANSMIT A SMALL SUM DEPOSITED WITH THE
COMPANY MIGHT IMPOSE A HEAVY AND UTTERLY UNREASONABLE BURDEN UPON THE
COMMON CARRIER ALTHOUGH THE PATRON HAD SUFFERED NO LOSS.  THIS DOES NOT
HARMONIZE WITH THE DECLARED PURPOSE OF THE STATUTE TO IMPOSE JUST AND
REASONABLE RATES. 

THE PRECISE QUESTION HERE INVOLVED HAS BEEN RULED UPON BY TWO
INTERMEDIATE COURTS.  MIAZZA V. WESTERN UNION TELEGRAPH CO. (1935), 50
GA. APP. 521; 178 S.E. 764; AND WERNICK V. WESTERN UNION TELEGRAPH CO.
(1937), 290 ILL. APP. 569, 573-574; 9 N.E.2D 72, 74.  IN THE FIRST THE
COURT OF APPEALS OF GEORGIA SUSTAINED A DEMURRER TO A COMPLAINT WHICH
DEFINITELY SOUGHT TO RECOVER FIVE HUNDRED DOLLARS AS LIQUIDATED DAMAGES
FOR FAILURE PROPERLY TO TRANSMIT A MESSAGE.  THE OPINION IN THE SECOND
CAUSE WELL SAID - 

"ALTHOUGH THIS PARTICULAR CLAUSE HAS BEEN A PART OF THE RULES,
REGULATIONS, CLASSIFICATIONS AND TARIFFS OF THE TELEGRAPH COMPANY SINCE
1921, IT HAS NEVER BEEN INTERPRETED AS A LIQUIDATED DAMAGE PROVISION,
AND NO CASES ARE CITED WHICH WOULD JUSTIFY SUCH AN INTERPRETATION. 
READING THE AGREEMENT AS A WHOLE, AS IT MUST BE READ UNDER THE
FUNDAMENTAL RULES OF CONSTRUCTION, AND TAKING INTO CONSIDERATION THE
HISTORICAL REASONS FOR CHANGING THE LEGAL RELATIONSHIP BETWEEN
TELEGRAPH COMPANIES AND THEIR PATRONS THROUGH FEDERAL LEGISLATION, AND
THE EFFECT THEREOF AS STATED BY THE COURT IN WESTERN UNION TELEGRAPH
CO. V. ESTEVE BROS. & CO. AND THE PRIESTER CASE, SUPRA, WE THINK THE
COURT WAS UNWARRANTED IN INTERPRETING THE LANGUAGE EMPLOYED AS A
LIQUIDATED DAMAGE CLAUSE.  IN SO DOING, IT EVIDENTLY FAILED TO CONSIDER
THE INTENT, PURPOSE AND MEANING OF THE ENTIRE CLAUSE, AND CONSIDERED
ONLY THE WORDS 'AT WHICH AMOUNT THE RIGHT  ...  IS HEREBY VALUED.'  THE
FAIR INTERPRETATION OF THE PROVISION AS A WHOLE MUST NECESSARILY GIVE
EFFECT TO THE PLAINLY EXPRESSED CLAUSES WHICH PRECEDE AND FOLLOW THE SO
CALLED LIQUIDATED DAMAGE PROVISION, STATING THAT 'IN ANY EVENT, THE
COMPANY SHALL NOT BE LIABLE FOR DAMAGES FOR DELAY, NONPAYMENT OR
UNDERPAYMENT OF THIS MONEY ORDER, WHETHER BY REASON OF NEGLIGENCE ON
THE PART OF ITS AGENTS, SERVANTS, OR OTHERWISE, BEYOND THE SUM OF $500
...  , UNLESS A GREATER VALUE IS STATED IN WRITING ON THE FACE OF THIS
APPLICATION AND AN ADDITIONAL SUM PAID OR AGREED TO BE PAID, BASED ON
SUCH VALUE, EQUAL TO ONE-TENTH OF 1 PER CENT THEREOF.'  THE PROVISION,
WHEN READ IN ITS ENTIRETY, WAS CLEARLY INTENDED TO FIX, NOT A DEFINITE
LIABILITY, BUT A MAXIMUM LIABILITY OR AGREED VALUATION UPON WHICH THE
RATE TO BE PAID FOR THE SHIPMENT OR CARRIAGE IS TO BE COLLECTED." 

THE CHALLENGED JUDGMENT MUST BE REVERSED.  THE CAUSE WILL BE REMANDED
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN HARMONY WITH THIS
OPINION.  REVERSED. 

FN1  "MONEY ORDERS ARE SUBJECT TO THE FOLLOWING CONDITIONS: 

"DOMESTIC ORDERS WILL BE CANCELED AND REFUND MADE TO THE SENDER IF
PAYMENT CANNOT BE EFFECTED WITHIN 72 HOURS AFTER RECEIPT AT PAYING
OFFICE (ELLIS ISLAND, N.Y., EXCEPTED).  ORDERS PAYABLE AT ELLIS ISLAND
WILL BE CANCELED AFTER THE EXPIRATION OF FIVE DAYS. 

"IN THE CASE OF A FOREIGN ORDER THE FOREIGN EQUIVALENT OF THE SUM
NAMED IN THE ORDER WILL BE PAID AT THE RATE OF EXCHANGE ESTABLISHED BY
THE COMPANY OR ITS AGENTS ON THE DATE OF THE TRANSFER. 

"IN THE CASE OF A FOREIGN ORDER THE EQUIVALENT, IN THE CURRENCY OF
THE COUNTRY OF PAYMENT, OF THE SUM NAMED WILL BE PURCHASED PROMPTLY;
AND IF FOR ANY REASON PAYMENT CANNOT BE EFFECTED, REFUND WILL BE MADE
BY THE COMPANY AND WILL BE ACCEPTED BY THE DEPOSITOR ON THE BASIS OF
THE MARKET VALUE OF SUCH FOREIGN CURRENCY IN AMERICAN FUNDS, AT NEW
YORK, ON THE DATE WHEN NOTICE OF CANCELATION IS RECEIVED THERE BY THE
COMPANY FROM ABROAD. 

"WHEN THE COMPANY HAS NO OFFICE AT DESTINATION AUTHORIZED TO PAY
MONEY, IT SHALL NOT BE LIABLE FOR ANY DEFAULT BEYOND ITS OWN LINES, BUT
SHALL BE THE AGENT OF THE SENDER, WITHOUT LIABILITY, AND WITHOUT
FURTHER NOTICE, TO CONTRACT ON THE SENDER'S BEHALF WITH ANY OTHER
TELEGRAPH OR CABLE LINE, BANK OR OTHER MEDIUM, FOR THE FURTHER
TRANSMISSION AND FINAL PAYMENT OF THIS ORDER. 

"IN ANY EVENT, THE COMPANY SHALL NOT BE LIABLE FOR DAMAGES FOR DELAY,
NONPAYMENT OR UNDERPAYMENT OF THIS MONEY ORDER, WHETHER BY REASON OF
NEGLIGENCE ON THE PART OF ITS AGENTS OR SERVANTS OR OTHERWISE, BEYOND
THE SUM OF FIVE HUNDRED DOLLARS, AT WHICH AMOUNT THE RIGHT TO HAVE THIS
MONEY ORDER PROMPTLY AND CORRECTLY TRANSMITTED AND PROMPTLY AND FULLY
PAID IS HEREBY VALUED, UNLESS A GREATER VALUE IS STATED IN WRITING ON
THE FACE OF THIS APPLICATION AND AN ADDITIONAL SUM PAID OR AGREED TO BE
PAID BASED ON SUCH VALUE EQUAL TO ONE-TENTH OF ONE PER CENT THEREOF. 

"IN THE EVENT THAT THE COMPANY ACCEPTS A CHECK, DRAFT OR OTHER
NEGOTIABLE INSTRUMENT TENDERED IN PAYMENT OF A MONEY ORDER, ITS
OBLIGATION TO EFFECT PAYMENT OF THE MONEY ORDER, SHALL BE CONDITIONAL
AND SHALL CEASE AND DETERMINE IN CASE SUCH CHECK, DRAFT OR OTHER
NEGOTIABLE INSTRUMENT SHALL FOR ANY REASON BECOME UNCOLLECTIBLE, AND IN
ANY EVENT THE SENDER OF THIS MONEY ORDER HEREBY AGREES TO HOLD THE
TELEGRAPH COMPANY HARMLESS FROM ANY LOSS OR DAMAGE INCURRED BY REASON
OR ON ACCOUNT OF ITS HAVING SO ACCEPTED ANY CHECK, DRAFT OR NEGOTIABLE
INSTRUMENT TENDERED IN PAYMENT OF THIS ORDER. 

"ALL MESSAGES INCLUDED IN MONEY ORDERS ARE SUBJECT TO THE FOLLOWING
TERMS:  ... 

"THE COMPANY SHALL NOT BE LIABLE FOR MISTAKES OR DELAYS IN THE
TRANSMISSION OR DELIVERY, OR FOR NON-DELIVERY, OF ANY MESSAGE RECEIVED
FOR TRANSMISSION AT THE UNREPEATED-MESSAGE RATE BEYOND THE SUM OF FIVE
HUNDRED DOLLARS; NOR FOR MISTAKES OR DELAYS IN THE TRANSMISSION OR
DELIVERY, OR FOR NON-DELIVERY, OF ANY MESSAGE RECEIVED FOR TRANSMISSION
AT THE REPEATED-MESSAGE RATE BEYOND THE SUM OF FIVE THOUSAND DOLLARS,
UNLESS SPECIALLY VALUED; NOR IN ANY CASE FOR DELAYS ARISING FROM
UNAVOIDABLE INTERRUPTION IN THE WORKING OF ITS LINES; NOR FOR ERRORS IN
CIPHER OR OBSCURE MESSAGES." 
..END :











YONKERS V. DOWNEY, 309 U.S. 590 


NO. 542.  ARGUED FEBRUARY 29, 1940.  - DECIDED APRIL 22, 1940 - 106 F.2D
69, AFFIRMED. 


1.  CONCURRENT FINDINGS OF TWO LOWER COURTS ACCEPTED HERE, TO THE
EFFECT THAT WITHDRAWALS OF DEPOSITS FROM A NATIONAL BANK WERE MADE WHEN
THERE WAS REASON TO BELIEVE THAT THE BANK WOULD BE UNABLE TO REPAY ITS
DEPOSITORS IN DUE COURSE, AND WITH INTENT TO PREFER.  P. 595. 

2.  NATIONAL BANKS HAVE NO IMPLIED POWER TO PLEDGE ASSETS AS SECURITY
FOR DEPOSITS.  P. 595. 

3. RESCISSION BY A NATIONAL BANK OF AN UNAUTHORIZED PLEDGE SECURING
DEPOSITS IS NOT CONDITIONED UPON RETURN OF THE AMOUNTS DEPOSITED.  P.
595. 

4.  THE ACT OF JUNE 25, 1930, PERMITS NATIONAL BANKING ASSOCIATIONS
TO GIVE SECURITY FOR DEPOSITS OF PUBLIC MONEY OF A STATE OR ANY
POLITICAL SUBDIVISION THEREOF "OF THE SAME KIND AS IS AUTHORIZED BY LAW
OF THE STATE IN WHICH SUCH AN ASSOCIATION IS LOCATED IN THE CASE OF
OTHER BANKING INSTITUTIONS IN THE STATE."  HELD, THAT SUCH PLEDGES ARE
NOT "AUTHORIZED" BY THE LAW OF A STATE (NEW YORK) WHICH FORBIDS THEM AS
ULTRA VIRES, THOUGH IT CONDITIONS RESCISSION UPON REPAYMENT OF DEPOSITS
MADE IN RELIANCE UPON THEM.  P. 597. 

YONKERS V. DOWNEY, RECEIVER.* 

*TOGETHER WITH NO. 543, CONDON, MAYOR, ET AL. V. DOWNEY, RECEIVER;
NO. 544, CONDON, MAYOR, ET AL. V. DOWNEY, RECEIVER; AND NO. 545,
YONKERS, TRUSTEE, V. DOWNEY, RECEIVER, ALSO ON WRITS OF CERTIORARI, 308
U.S. 547, TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CETIORARI, 308 U.S. 547, TO REVIEW THE AFFIRMANCE OF RECOVERIES BY A
RECEIVER OF A NATIONAL BANK OF DEPOSITS WITHDRAWN FROM IT WHILE
INSOLVENT.  THE CASE WAS TRIED TO THE COURT WITHOUT A JURY.  23
F.SUPP.  1018. 

EVEN THOUGH THE BANK WAS INSOLVENT, THE CITY WAS ENTITLED TO HOLD THE
SECURITY UNTIL PAYMENT OF ITS DEPOSITS IN FULL.  SINCE THAT IS JUST
WHAT THE CITY DID, THE DEPOSITS CAN NOT BE RECOVERED FROM IT. 

IN THE ABSENCE OF A FEDERAL STATUTE ON THE EFFECT OF AN ULTRA VIRES
PLEDGE BY A NATIONAL BANK, THAT EFFECT WOULD BE ASCERTAINED BY APPLYING
THE RULE THAT QUESTIONS OF ULTRA VIRES ARE GOVERNED BY THE LAW OF
INCORPORATION AND QUESTIONS OF THE EFFECT OF THE ULTRA VIRES ACTS, BY
THE LAW OF THE STATE WHERE THE ACTS ARE DONE.  RESTATEMENT OF THE LAW
OF CONFLICT OF LAWS, SEC. 166, SUBDIVISION C. OF THE COMMENT. 

THE EFFECT OF THE SILENCE OF THE NATIONAL BANK ACT ON THE SUBJECT
WOULD BE, THEREFORE, THAT NATIONAL BANKS AND STATE BANKS WOULD COMPETE
ON AN EQUAL FOOTING IN SO FAR AS THE EFFECT OF ULTRA VIRES ACTS WAS
CONCERNED.  THE PRESCRIBING OF A SPECIAL STATUTORY RULE FOR THE
NATIONAL BANKS WOULD BE A DEPARTURE FROM THE TRADITIONAL CONGRESSIONAL
POLICY TOWARD PLACING THE NATIONAL BANKS ON EQUALITY WITH THE STATE
BANKS.  LEWIS V. FIDELITY & DEPOSIT CO., 292 U.S. 559, 564. 

THE STATE LAW ALWAYS GOVERNS THE TRANSACTIONS OF NATIONAL BANKS
EXCEPT WHERE IN CONFLICT WITH SOME PARAMOUNT FEDERAL LAW.  NATIONAL
BANK V. COMMONWEALTH, 9 WALL.  353, 362; LEWIS V. FIDELITY & DEPOSIT
CO., 292 U.S. 559, 564.  THUS, IF THE NATIONAL BANK ACT IS TO OVERRIDE
THE LAW OF NEW YORK AS TO THE CONSEQUENCES OF AN ULTRA VIRES PLEDGE, IT
MUST NOT ONLY INDICATE A GENERAL POLICY OF CONGRESS THAT AN ULTRA VIRES
ACT OF A NATIONAL BANK SHALL BE WITHOUT FORCE OR EFFECT BUT ALSO
INDICATE THAT CONGRESS HAS ACTUALLY SUPPLANTED THE STATE LAW ON THE
SUBJECT.  NOTHING IN THE NATIONAL BANK ACT INDICATES EITHER OF THOSE
THINGS.  THEREFORE, THE CONSEQUENCES OF AN ULTRA VIRES ACT OF A
NATIONAL BANK ARE DETERMINED BY THE LAW OF THE STATE WHERE IT OCCURS. 
SECURITY NATIONAL BANK V. ST. CROIX POWER CO., 117 WIS. 211. 

THE LIEN ON THE SECURITY AROSE WHEN THE SECURITY WAS TAKEN, LONG
BEFORE INSOLVENCY, AND SUCH A LIEN, ALTHOUGH CREATED BY STATE LAW, IS
EFFECTIVE AS APPLIED TO NATIONAL BANKS.  SCOTT V. ARMSTRONG, 146 U.S.
499, 510. 

THE NEW YORK LAW AS TO THE CONSEQUENCES OF THE PLEDGE WAS
INCORPORATED IN THE NATIONAL BANK ACT BY REFERENCE IN THE ACT OF JUNE
25, 1930. 

CORPORATIONS HAVE POWER TO PERFORM CERTAIN ACTS WHICH ARE OUTSIDE OF
THEIR POWERS.  FIRST NATIONAL BANK V. MOTT IRON WORKS, 258 U.S. 240;
PULLMAN'S PALACE-CAR CO. V. CENTRAL TRANSPORTATION CO., 171 U.S. 138;
STATE BANK OF COMMERCE V. STONE, 261 N.Y. 175.  IN OTHER WORDS, A
CORPORATION HAS DE FACTO POWERS TO ACCEPT THE LIABILITIES AND RIGHTS
THRUST UPON IT BY THE LOCAL LAW AS CONSEQUENCES OF THE ATTEMPTED
EXERCISE OF DISAPPROVED POWERS.  EVERY TIME A COURT OF THE STATE OF
INCORPORATION HOLDS A CORPORATION FOR THE CONSEQUENCES OF AN ULTRA
VIRES ACT, IT HOLDS THAT THE CORPORATION IS "AUTHORIZED" TO ACCEPT
THEM.  THE COURT BELOW WAS WRONG IN LIMITING THE EXPRESSION "AUTHORIZED
SECURITY" TO SECURITY AUTHORIZED DE JURE. 

ANY HESITATION THAT ONE MAY HAVE ABOUT APPLYING THE WORD "AUTHORIZED"
TO DE FACTO POWERS OF A CORPORATION ARISES FROM OUR HABITUAL
ASSOCIATION OF AUTHORIZATION WITH THE LEGISLATURE.  SINCE THESE POWERS
TO ACCEPT THE CONSEQUENCES OF ULTRA VIRES ACTS ARE USUALLY GIVEN BY
JUDICIAL DECISION, THEY DO NOT GENERALLY FIT INTO THE CLASS OF POWERS
AUTHORIZED BY THE LEGISLATURE.  HERE, HOWEVER, BY HYPOTHESIS, CONGRESS
HAS TREATED THESE POWERS TO ACCEPT THE CONSEQUENCES OF ULTRA VIRES ACTS
AS THE SUBJECT OF LEGISLATIVE ACTION SO THAT THE WORD "AUTHORIZED" IS A
NATURAL ONE FOR CONGRESS TO APPLY TO THEM. 

THE DEPOSITS PAID OUT UPON CHECKS OF THE CITY BEFORE THE COMPTROLLER
TOOK OVER THE BANK CAN NOT BE RECOVERED BY THE RECEIVER EVEN IF THE
SECURITY IS UNENFORCEABLE. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

BY THESE COMPANION SUITS, BEGUN DURING 1936, THE RECEIVER OF THE
FIRST NATIONAL BANK AND TRUST COMPANY OF YONKERS ("THE BANK"), SEEKS TO
RECOVER FIFTY PER CENTUM OF DEPOSITS WITHDRAWN BY PETITIONERS FROM THE
ASSOCIATION WHILE INSOLVENT.  THUS, IT IS SAID, THEY OBTAINED UNLAWFUL
PREFERENCES WITHIN THE MEANING OF THE NATIONAL BANKING ACT.  FN1  FROM
CORPORATE ASSETS, GENERAL CREDITORS HAVE BEEN PAID DIVIDENDS AMOUNTING
TO FIFTY PER CENTUM OF THEIR CLAIMS - FORTY, DECEMBER, 1933; TEN,
NOVEMBER, 1937. 

THE BANK WAS LOCATED IN NEW YORK.  IN EACH CAUSE THE POINTS OF LAW
AND FACT ARE SUBSTANTIALLY ALIKE.  IT WILL SUFFICE TO CONSIDER THEM AS
PRESENTED BY THE RECORD IN NO. 542. 

PETITIONER'S DEPOSITS WITH THE BANK, MARCH 4, 1933, AMOUNTED TO
$277,000.  TO SECURE THIS AND OTHER SMALLER PUBLIC ONES, BONDS OF THE
ASSOCIATION TOTALLING $535,000 WERE IN PLEDGE. 

THE GOVERNOR OF NEW YORK PROCLAIMED SATURDAY, MARCH 4TH AND MONDAY,
MARCH 6TH, 1933, BANK HOLIDAYS.  LATER THE PRESIDENT AND THE GOVERNOR
EXTENDED SUCH HOLIDAYS THROUGH MARCH 9TH.  THE BANK WAS NOT OPENED FOR
UNRESTRICTED BUSINESS AFTER MARCH 3RD.  A CONSERVATOR, APPOINTED MARCH
20TH, REMAINED IN CONTROL UNTIL JANUARY 23, 1934, WHEN A RECEIVER TOOK
CHARGE. 

BETWEEN MARCH 9TH AND 20TH, 1933, PETITIONER WITHDREW DEPOSITS
AMOUNTING TO $89,000; BETWEEN MARCH 20TH AND 28TH, $67,000.  ON THE
LATTER DAY, UNDER DIRECTION OF THE CONSERVATOR, PETITIONER'S REMAINING
DEPOSITS WERE PAID AND THE BANK RETOOK THE PLEDGED BONDS. 

A JURY HAVING BEEN WAIVED THE CAUSE WAS TRIED TO THE COURT UPON
PLEADINGS AND EVIDENCE.  AMONG OTHER THINGS IT FOUND - 

THE PLEDGE OF ASSETS BY THE BANK TO SECURE THE DEPOSITS WAS ULTRA
VIRES AND UNLAWFUL. 

THE BANK WAS INSOLVENT MARCH 6TH, 1933, AND AS OF THAT DAY THE RIGHTS
OF CREDITORS BECAME FIXED. 

THE PAYMENTS OF DEPOSITS TO PETITIONER WERE NOT ALLOWED BY ANY
PRESIDENTIAL PROCLAMATION OR EXECUTIVE ORDER.  THEY WERE MADE
VOLUNTARILY UNDER MISTAKE OF LAW BY AN OFFICER OF THE UNITED STATES AND
ARE RECOVERABLE.  ALSO THEY WERE MADE WITH INTENT TO GIVE PETITIONER
PREFERENCE OVER OTHER CREDITORS. 

NO STATUTE OF NEW YORK CONFERS UPON STATE BANKS GENERAL POWER TO
PLEDGE ASSETS TO SECURE DEPOSITS.  THEY HAVE NO SUCH POWER UNDER THE
COMMON LAW OF NEW YORK. 

JUDGMENT WENT FOR THE RECEIVER FOR FIFTY PER CENTUM OF THE AMOUNTS
WITHDRAWN BY THE PETITIONER AFTER MARCH 9, 1933, WITH INTEREST, ETC. 

THE CIRCUIT COURT OF APPEALS AFFIRMED THIS ACTION.  106 F.2D 69.  IT
HELD ALL WITHDRAWALS AFTER MARCH 9TH OCCURRED WHEN THE FACTS INDICATED
THE BANK WOULD BE UNABLE TO PAY DEPOSITORS IN DUE COURSE AND THAT
ADEQUATE EVIDENCE SUPPORTED THE TRIAL COURT'S FINDINGS OF AN INTENT TO
PREFER.  WE FIND NO REASON TO DISREGARD THESE FINDINGS BY TWO COURTS
AND ACCEPT THEM AS CORRECT. 

THE CIRCUIT COURT OF APPEALS FURTHER HELD NATIONAL BANKS HAVE NO
IMPLIED POWER TO PLEDGE ASSETS TO SECURE DEPOSITS; THAT HERE THE BANK
WAS NOT EMPOWERED SO TO DO BY THE ACT JUNE 25, 1930; FN2 THAT THE
PLEDGE MIGHT BE RESCINDED WITHOUT RETURN BY THE RECEIVER OF THE SUMS
WITHDRAWN.  WITH THESE CONCLUSIONS WE AGREE. 

UNLESS EMPOWERED BY THE ACT JUNE 25, 1930 OR CONCERNING FEDERAL FUNDS
(NOT HERE CLAIMED) AS IN INLAND WATERWAYS CORP. V. YOUNG, ANTE, P. 517,
NATIONAL BANKS MAY NOT SECURE DEPOSITS BY PLEDGE OF ASSETS. 

TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245, 253-255, AND
MARION V. SNEEDEN, 291 U.S. 262, AUTHORITATIVELY INTERPRETED THE
NATIONAL BANKING ACT AND APPROVED THE VIEW THAT UNDER THIS, A NATIONAL
BANK POSSESSES NO INHERENT POWER TO SECURE DEPOSITS, PUBLIC OR PRIVATE,
BY PLEDGING ASSETS, AND THAT SUCH A PLEDGE IS BOTH ULTRA VIRES AND
CONTRARY TO PUBLIC POLICY.  "THE MEASURE OF THEIR POWERS IS THE
STATUTORY GRANT; AND POWERS NOT CONFERRED BY CONGRESS ARE DENIED." 
ALSO, THAT IN CASE OF INSOLVENCY, ASSETS SO PLEDGED, MAY BE RECLAIMED
WITHOUT PAYMENT OF THE DEPOSITS.  "TO PERMIT THE PLEDGE WOULD BE
INCONSISTENT WITH MANY PROVISIONS OF THE NATIONAL BANK ACT WHICH ARE
DESIGNED TO ENSURE, IN CASE OF DISASTER, UNIFORMITY IN THE TREATMENT OF
DEPOSITORS AND A RATABLE DISTRIBUTION OF ASSETS."  THE RESULT IN THESE
CAUSES WAS NOT INFLUENCED BY CONSIDERATION OF LOCAL LAW. 

WE CANNOT ACCEPT THE SUGGESTION OF COUNSEL FOR PETITIONER THAT THE
CITED OPINIONS MERELY DECLARE A PLEDGE OF ASSETS ULTRA VIRES AND LEAVE
THE CONSEQUENCES TO BE DETERMINED BY THE LAW OF THE STATE WHERE IT
OCCURS.  THIS VIEW IS NOT IN HARMONY WITH THE LANGUAGE OF THE OPINIONS
NOR WITH THE GENERAL PURPOSES OF THE NATIONAL BANKING ACT THERE POINTED
OUT. 

UNDER THE COMMON LAW AS INTERPRETED IN NEW YORK, PLEDGE OF SECURITIES
BY A STATE BANK TO SECURE DEPOSITS IS "CONTRARY TO LAW AND BEYOND THE
POWER AND AUTHORITY VESTED IN THE OFFICERS."  ALTHOUGH FORBIDDEN, SUCH
A PLEDGE WILL NOT BE SET ASIDE UNLESS DEPOSITS MADE IN RELIANCE UPON IT
ARE FIRST REPAID.  STATE BANK OF COMMERCE V. STONE, 261 N.Y. 175, 187
188; 184 N.E. 750; CITY OF MOUNT VERNON V. MOUNT VERNON TRUST CO., 270
N.Y. 400, 406; 1 N.E.2D 825. 

THE ACT OF JUNE 25, 1930 PERMITS NATIONAL BANKS TO GIVE SECURITY FOR
PUBLIC DEPOSITS "OF THE SAME KIND AS IS AUTHORIZED BY THE LAW OF THE
STATE IN WHICH SUCH ASSOCIATION IS LOCATED IN THE CASE OF OTHER BANKING
INSTITUTIONS IN THE STATE."  COUNSEL MAINTAIN THAT WITHIN THE FAIR
INTENDMENT OF THIS, STATE BANKS IN NEW YORK ARE "AUTHORIZED" TO PLEDGE
BONDS TO SECURE PUBLIC DEPOSITS.  THEY RELY UPON THE RULINGS OF THE
LOCAL COURTS, IN THE CAUSES LAST CITED, CONCERNING CONDITIONS WHICH
MUST BE MET BEFORE AN ULTRA VIRES ACT WILL BE SET ASIDE. 

THEY SUBMIT THAT CORPORATIONS HAVE CAPACITY TO ACCEPT THE RESULT OF
THEIR ACTIONS.  "THAT THE CAPACITY TO ACCEPT THE CONSEQUENCES OF AN
ULTRA VIRES ACT IS ITSELF A POWER."  FURTHER, THAT "'GIVING' A POWER IS
BUT ANOTHER WORD FOR 'AUTHORIZING' ITS EXERCISE."  HENCE, THE ARGUMENT
SEEMS TO RUN, AS A STATE BANK MAY HOLD THE FRUIT OF A PLEDGE UNTIL
RETURN OF THE THING PLEDGED, THEREFORE, IT IS "AUTHORIZED BY LAW" TO
MAKE A PLEDGE THUS CONDITIONED. 

IN THIS PROCESSION, OBVIOUSLY, DIFFERENT MEANINGS ARE ATTRIBUTED TO
THE WORD "POWER" AND IT IS CONFUSED WITH "CAPACITY" AND "AUTHORITY." 
IN ONE SENSE, EVERY CORPORATION HAS "POWER" TO DO WRONG, ALSO
"CAPACITY" TO SUFFER THE CONSEQUENCES OF WRONG-DOING.  BUT NO
CORPORATION HAS AUTHORITY TO VIOLATE AN INHIBITION OR GO BEYOND THE
LIMITS OF ITS CHARTER.  AUTHORIZATION TO DO A FORBIDDEN THING CANNOT BE
INFERRED FROM CAPACITY TO ACCEPT THE PRESCRIBED CONSEQUENCES.  THE LAW
FORBADE LOCAL INSTITUTIONS TO MAKE PLEDGES SUCH AS THE ONE HERE IN
QUESTION. 

THE CHALLENGED JUDGMENTS MUST BE AFFIRMED. 

FN1  TITLE 12 U.S.C. - 

SEC. 91.  "ALL TRANSFERS OF THE NOTES, BONDS, BILLS OF EXCHANGE, OR
OTHER EVIDENCES OF DEBT OWING TO ANY NATIONAL BANKING ASSOCIATION, OR
OF DEPOSITS TO ITS CREDIT; ALL ASSIGNMENTS OF MORTGAGES, SURETIES ON
REAL ESTATE, OR OF JUDGMENTS OR DECREES IN ITS FAVOR; ALL DEPOSITS OF
MONEY, BULLION, OR OTHER VALUABLE THING FOR ITS USE, OR FOR THE USE OF
ANY OF ITS SHAREHOLDERS OR CREDITORS; AND ALL PAYMENTS OF MONEY TO
EITHER, MADE AFTER THE COMMISSION OF AN ACT OF INSOLVENCY, OR IN
CONTEMPLATION THEREOF, MADE WITH A VIEW TO PREVENT THE APPLICATION OF
ITS ASSETS IN THE MANNER PRESCRIBED BY THIS CHAPTER, OR WITH A VIEW TO
THE PREFERENCE OF ONE CREDITOR TO ANOTHER, EXCEPT IN PAYMENT OF ITS
CIRCULATING NOTES, SHALL BE UTTERLY NULL AND VOID; AND NO ATTACHMENT,
INJUNCTION, OR EXECUTION, SHALL BE ISSUED AGAINST SUCH ASSOCIATION OR
ITS PROPERTY BEFORE FINAL JUDGMENT IN ANY SUIT, ACTION, OR PROCEEDING,
IN ANY STATE, COUNTY, OR MUNICIPAL COURT."  (R.S. SEC. 5242.) 

SEC. 194.  "FROM TIME TO TIME, AFTER FULL PROVISION HAS BEEN FIRST
MADE FOR REFUNDING TO THE UNITED STATES ANY DEFICIENCY IN REDEEMING THE
NOTES OF SUCH ASSOCIATION, THE COMPTROLLER SHALL MAKE A RATABLE
DIVIDEND OF THE MONEY SO PAID OVER TO HIM BY SUCH RECEIVER ON ALL SUCH
CLAIMS AS MAY HAVE BEEN PROVED TO HIS SATISFACTION OR ADJUDICATED IN A
COURT OF COMPETENT JURISDICTION, AND, AS THE PROCEEDS OF THE ASSETS OF
SUCH ASSOCIATION ARE PAID OVER TO HIM, SHALL MAKE FURTHER DIVIDENDS ON
ALL CLAIMS PREVIOUSLY PROVED OR ADJUDICATED; AND THE REMAINDER OF THE
PROCEEDS, IF ANY, SHALL BE PAID OVER TO THE SHAREHOLDERS OF SUCH
ASSOCIATION, OR THEIR LEGAL REPRESENTATIVES, IN PROPORTION TO THE STOCK
BY THEM RESPECTIVELY HELD."  (R.S. SEC. 5236.) 

FN2  ACT JUNE 25, 1930, C. 604, 46 STAT. 809; 12 U.S.C., SEC. 90 - 

"ALL NATIONAL BANKING ASSOCIATIONS, DESIGNATED FOR THAT PURPOSE BY
THE SECRETARY OF THE TREASURY, SHALL BE DEPOSITARIES OF PUBLIC MONEY,
UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY; AND THEY
MAY ALSO BE EMPLOYED AS FINANCIAL AGENTS OF THE GOVERNMENT; AND THEY
SHALL PERFORM ALL SUCH REASONABLE DUTIES, AS DEPOSITARIES OF PUBLIC
MONEY AND FINANCIAL AGENTS OF THE GOVERNMENT, AS MAY BE REQUIRED OF
THEM.  THE SECRETARY OF THE TREASURY SHALL REQUIRE THE ASSOCIATIONS
THUS DESIGNATED TO GIVE SATISFACTORY SECURITY, BY THE DEPOSIT OF UNITED
STATES BONDS AND OTHERWISE, FOR THE SAFEKEEPING AND PROMPT PAYMENT OF
THE PUBLIC MONEY DEPOSITED WITH THEM, AND FOR THE FAITHFUL PERFORMANCE
OF THEIR DUTIES AS FINANCIAL AGENTS OF THE GOVERNMENT:  PROVIDED, THAT
THE SECRETARY SHALL, ON OR BEFORE THE 1ST OF JANUARY OF EACH YEAR, MAKE
A PUBLIC STATEMENT OF THE SECURITIES REQUIRED DURING THAT YEAR FOR SUCH
DEPOSITS.  AND EVERY ASSOCIATION SO DESIGNATED AS RECEIVER OR
DEPOSITARY OF THE PUBLIC MONEY SHALL TAKE AND RECEIVE AT PAR ALL OF THE
NATIONAL CURRENCY BILLS, BY WHATEVER ASSOCIATION ISSUED, WHICH HAVE
BEEN PAID INTO THE GOVERNMENT FOR INTERNAL REVENUE, OR FOR LOANS OR
STOCKS:  PROVIDED, THAT THE SECRETARY OF THE TREASURY SHALL DISTRIBUTE
THE DEPOSITS HEREIN PROVIDED FOR, AS FAR AS PRACTICABLE, EQUITABLY
BETWEEN THE DIFFERENT STATES AND SECTIONS. 

"ANY ASSOCIATION MAY, UPON THE DEPOSIT WITH IT OF PUBLIC MONEY OF A
STATE OR ANY POLITICAL SUBDIVISION THEREOF, GIVE SECURITY FOR THE
SAFEKEEPING AND PROMPT PAYMENT OF THE MONEY SO DEPOSITED, OF THE SAME
KIND AS IS AUTHORIZED BY THE LAW OF THE STATE IN WHICH SUCH ASSOCIATION
IS LOCATED IN THE CASE OF OTHER BANKING INSTITUTIONS IN THE STATE." 
..END :























MAURER V. HAMILTON, 309 U.S. 598 


NO. 380.  ARGUED FEBRUARY 2, 1940.  REARGUED MARCH 27, 28, 1940.  -
DECIDED APRIL 22, 1940.  - 336 PA. 17 -  7 A.2D 466, AFFIRMED. 


1.  A PENNSYLVANIA STATUTE PROHIBITING THE OPERATION ON THE HIGHWAYS
OF THE STATE OF ANY VEHICLE CARRYING ANY OTHER VEHICLE "ABOVE THE CAB
OF THE CARRIER VEHICLE OR OVER THE HEAD OF THE OPERATOR OF SUCH CARRIER
VEHICLE," AND APPLIED TO INTERSTATE CARRIERS, HELD CONSISTENT WITH DUE
PROCESS OF LAW, AND CONSISTENT WITH THE COMMERCE CLAUSE IN THE ABSENCE
OF CONGRESSIONAL ACTION.  P. 603. 

2.  THE FEDERAL MOTOR CARRIER ACT OF 1935 DID NOT UNDERTAKE TO
DEPRIVE THE STATE OF POWER TO IMPOSE THIS REGULATION UPON VEHICLES
MOVING IN INTERSTATE COMMERCE.  P. 604, ET SEQ. 

3.  SECTION 204 OF THE FEDERAL MOTOR CARRIER ACT EMPOWERS THE
INTERSTATE COMMERCE COMMISSION TO ESTABLISH REASONABLE REQUIREMENTS
WITH RESPECT TO "SAFETY OF OPERATION AND EQUIPMENT" OF MOTOR VEHICLES
OF COMMON AND CONTRACT CARRIERS IN INTERSTATE COMMERCE, BUT ITS
AUTHORITY WITH RESPECT TO SIZES AND WEIGHTS OF VEHICLES IS EXPRESSLY
LIMITED IN SEC. 225 TO INVESTIGATION AND REPORT ON THE NEED OF
REGULATION.  P. 607. 

4.  "SIZES AND WEIGHT" IN THE MEANING OF SEC. 225 INCLUDES THE SIZE
AND WEIGHT OF THE MOTOR VEHICLE AND ITS LOAD.  P. 610. 

5.  THE AUTHORITY TO REGULATE THE "SIZES AND WEIGHT" OF MOTOR
VEHICLES, LEFT WITH THE STATES BY SEC. 225 OF THE FEDERAL MOTOR CARRIER
ACT, IS NOT RESTRICTED TO OVER-ALL MEASUREMENTS AND GROSS WEIGHT, BUT
INCLUDES PARTICULAR DIMENSIONS OF MOTOR VEHICLES AND THEIR LOADS AND
THE WEIGHT DISTRIBUTION OF LOAD, WHICH AFFECT SAFETY AS WELL AS THE
WEAR AND TEAR OF THE HIGHWAYS.  P. 610. 

6. THE PENNSYLVANIA REGULATION IS AN EXERCISE OF THE STATE'S POWER TO
PROTECT THE SAFE AND CONVENIENT USE OF ITS HIGHWAYS, WHICH IT WAS THE
PURPOSE OF SEC. 225 TO RESERVE TO THE STATE FROM THE GRANT OF
REGULATORY POWER TO THE COMMISSION.  P. 611. 

7. IN ORDINARY SPEECH THE LOAD OF A VEHICLE IS NOT SPOKEN OF AS A
PART OF ITS EQUIPMENT.  P. 612. 

8.  EVEN IF THE PHRASE "OPERATION AND EQUIPMENT" IN SEC. 204 COULD BE
TAKEN, WHEN STANDING ALONE, AS INCLUDING THE WEIGHT AND SIZE OF LOADS,
IT CAN NOT BE SO TAKEN WHEN READ IN CONJUNCTION WITH THE RESERVATION OF
SEC. 225 OF "SIZES AND WEIGHT" FROM THE REGULATORY POWER OF THE
COMMISSION.  P. 612. 

9.  CONGRESSIONAL INTENTION TO DISPLACE LOCAL LAWS IN THE EXERCISE OF
THE COMMERCE POWER IS NOT TO BE INFERRED UNLESS CLEARLY INDICATED.  P.
614. 

MAURER ET AL., TRADING AS MAURER & MYERS AUTO CONVOY, V. HAMILTON,
SECRETARY OF REVENUE OF PENNSYLVANIA, ET AL. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

APPEAL FROM A JUDGMENT AFFIRMING THE DISMISSAL OF A COMPLAINT IN AN
ACTION TO ENJOIN THE ENFORCEMENT OF A STATE REGULATION OF MOTOR
VEHICLES. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER A STATUTE OF PENNSYLVANIA
PROHIBITING THE OPERATION OVER ITS HIGHWAYS OF ANY MOTOR VEHICLE
CARRYING ANY OTHER VEHICLE OVER THE HEAD OF THE OPERATOR OF SUCH
CARRIER VEHICLE, IS SUPERSEDED BY THE RULES AND REGULATIONS PROMULGATED
BY THE INTERSTATE COMMERCE COMMISSION UNDER THE MOTOR CARRIER ACT OF
1935, 49 STAT. 543, 49 U.S.C. SECS. 301-327, APPLICABLE TO COMMON AND
CONTRACT CARRIERS IN INTERSTATE COMMERCE. 

APPELLANTS, CO-PARTNERS ENGAGED AS COMMON CARRIERS IN THE BUSINESS OF
TRANSPORTING IN INTERSTATE COMMERCE NEW AUTOMOBILES UPON MOTOR TRUCKS
SPECIALLY CONSTRUCTED FOR THAT PURPOSE, BROUGHT THIS SUIT IN THE
PENNSYLVANIA STATE COURTS TO ENJOIN APPELLEES, STATE OFFICERS, FROM
ENFORCING AGAINST APPELLANTS SEC. 1033(C) OF THE PENNSYLVANIA VEHICLE
CODE, EFFECTIVE JUNE 29, 1937, 75 P.S. 642, WHICH PROHIBITS THE
OPERATION ON THE HIGHWAYS OF THE STATE OF ANY VEHICLE CARRYING ANY
OTHER VEHICLE "ABOVE THE CAB OF THE CARRIER VEHICLE OR OVER THE HEAD OF
THE OPERATOR OF SUCH CARRIER VEHICLE."  FN1  TWO OTHER LIKE SUITS
BROUGHT BY MOTOR CARRIERS ENGAGED IN LIKE TRANSPORTATION INTERSTATE
WERE CONSOLIDATED WITH THE PRESENT SUIT. 

AFTER A HEARING IN WHICH THERE WAS EXTENSIVE EVIDENCE TENDING TO SHOW
THAT THE TRANSPORTATION BY APPELLANTS OVER THE STATE HIGHWAYS OF CARS
PLACED ABOVE THE CAB OF THE TRANSPORTING VEHICLE IS UNSAFE TO THE
DRIVER AND TO THE PUBLIC, THE TRIAL COURT FOUND THAT THE LOCATION OF
MOTOR VEHICLES OVER THE CAB OF THE CARRIER RENDERED ITS OPERATION
DANGEROUS ON THE CURVES AND GRADES OF THE PENNSYLVANIA HIGHWAYS.  IT
FOUND THAT SUCH LOCATION OF THE CARRIED CAR ABOVE THE DRIVER RAISES THE
CENTER OF GRAVITY OF THE LOADED CAR ABOVE THAT WHICH IS NORMAL IN
TRUCKING OPERATIONS, PLACES EXCESSIVE WEIGHT ON THE FRONT AXLES AND
TIRES, OBSCURES THE VISION OF THE DRIVER OF THE CARRIER CAR, WITH THE
RESULTS THAT IT INCREASES THE DIFFICULTY OF STEERING THE LOADED CAR,
ADVERSELY AFFECTS BRAKING, PARTICULARLY ON CURVES, AND AFFECTS THE
BALANCE OF THE LOADED CAR SO AS TO MAKE ITS USE ON THE HIGHWAYS
DANGEROUS. 

IT ALSO FOUND THAT IN CASE OF COLLISION OR LOSS OF CONTROL THE
OVERHEAD CAR HAS A TENDENCY TO FLY OFF THE CAB, IN CONSEQUENCE OF
WHICH, IN NUMEROUS CASES, SERIOUS INJURY HAD RESULTED TO THE OPERATOR
OF THE TRUCK OR TO THE COLLIDING CAR AND ITS OCCUPANTS, OR BOTH, AND
THAT THE HEIGHT OF THE OVERHEAD CAR AND ITS INTERFERENCE WITH THE
DRIVER'S VISION CAUSES HIM TO DRIVE ON THE WRONG SIDE OF THE ROAD IN
ORDER TO AVOID OVERHEAD OBSTRUCTIONS.  THE COURT CONCLUDED THAT THE
STATE STATUTE WAS A SAFETY REGULATION OF MOTORCARS USING THE HIGHWAYS
OF THE STATE AND THAT, AS APPLIED TO APPELLANTS, IT INFRINGED NEITHER
THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION NOR THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT, AND GAVE JUDGMENT DISMISSING THE
COMPLAINT.  ON APPEAL THE SUPREME COURT OF PENNSYLVANIA CONFIRMED THE
FINDINGS OF THE TRIAL COURT AND AFFIRMED THE DECREE.  336 PA. 17; 7
A.2D 466.  THE CASE COMES HERE ON APPEAL UNDER SEC. 237 OF THE JUDICIAL
CODE, AS AMENDED, 28 U.S.C. SEC. 344. 

BEFORE THE PRESENT SUIT WAS BROUGHT, THE INTERSTATE COMMERCE
COMMISSION, PURPORTING TO ACT UNDER THE MOTOR CARRIER ACT, HAD
PROMULGATED REGULATIONS EFFECTIVE JULY 1, 1936, WITH RESPECT TO "SAFETY
OF OPERATION AND EQUIPMENT" OF COMMON AND CONTRACT MOTOR CARRIERS IN
INTERSTATE COMMERCE, SUBJECT TO THE ACT.  THESE REGULATIONS CONTAINED
NO PROVISIONS SPECIFICALLY APPLICABLE TO CARS CARRIED OVER THE CAB OF
THE CARRIER VEHICLE.  ON MARCH 11, 1939, WHILE THE PRESENT CAUSE WAS
PENDING BEFORE THE SUPREME COURT OF PENNSYLVANIA, THE INTERSTATE
COMMERCE COMMISSION, IN "CAR OVER CAB OPERATIONS," 12 M.C.C. 127,
ISSUED ITS REPORT OF AN INVESTIGATION OF THE PRACTICE OF THE CAR OVER
CAB METHOD OF TRANSPORTATION OF MOTOR VEHICLES, IN WHICH IT ANNOUNCED
ITS CONCLUSION THAT 

"THE RECORD DISCLOSES NO TESTIMONY WHATSOEVER TO SHOW THAT THE
OPERATION OF MOTOR VEHICLES, USED IN TRANSPORTING NEW AUTOMOBILES, AND
WHICH ARE SO CONSTRUCTED THAT ONE OF THE AUTOMOBILES BEING TRANSPORTED
EXTENDS IN WHOLE OR IN PART OVER THE CAB, IS UNSAFE.  ON THE CONTRARY,
THE EVIDENCE IS CLEAR THAT THE AVERAGE NUMBER OF ACCIDENTS IN WHICH
VEHICLES OF THIS TYPE ARE INVOLVED IS LESS THAN THE COUNTRY'S AVERAGE
FOR ALL TRUCKS.  WE FIND NO REASONS OF RECORD WHY THE OPERATIONS OF
SUCH VEHICLES SHOULD BE FORBIDDEN.  THE SAFETY REGULATIONS HERETOFORE
PRESCRIBED BY US, OF COURSE, APPLY TO THESE AS WELL AS OTHER VEHICLES
OPERATED BY COMMON AND CONTRACT CARRIERS IN INTERSTATE OR FOREIGN
COMMERCE.  THE OPERATIONS OF VEHICLES SO EQUIPPED ARE THEREFORE
PERMITTED BY THE EXISTING REGULATIONS, AND THERE IS NO NEED FOR
CHANGE."  (P. 132.)  FN2 

THE SUPREME COURT OF PENNSYLVANIA TOOK JUDICIAL NOTICE OF THIS ACTION
OF THE COMMISSION, BUT CONCLUDED THAT THE AUTHORITY OF THE STATE TO
ENACT SEC. 1033(C) OF THE VEHICLE CODE WAS UNIMPAIRED BY FEDERAL ACTION
UNDER THE COMMERE CLAUSE FOR THE REASON THAT THE APPLICABLE PROVISIONS
OF THE MOTOR CARRIER ACT, ENACTED BY CONGRESS, DID NOT PURPORT TO
WITHDRAW FROM THE STATE ITS CONSTITUTIONAL POWER TO MAKE THE REGULATION
EMBODIED IN THAT SECTION, AND FOR A SECOND REASON, WHICH WE FIND IT
UNNECESSARY TO CONSIDER, THAT IN ANY CASE THE ACTION OF THE COMMISSION
IN DECLINING TO ADOPT ANY RULE OR REGULATION WITH RESPECT TO THE CAR
OVER CAB PRACTICE OF INTERSTATE COMMON AND CONTRACT MOTOR CARRIERS
COULD NOT BE TAKEN AS A MANDATE TO SUCH CARRIERS TO CONTINUE THE
PRACTICE DESPITE STATE REGULATION PROHIBITING IT. 

APPELLANTS ASSAIL THE STATE STATUTE ON THE GROUNDS THAT EVEN THOUGH
IT IS UNAFFECTED BY THE PROVISIONS OF THE MOTOR CARRIER ACT IT
NEVERTHELESS INFRINGES THE COMMERCE CLAUSE AND THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT AND THAT IN ANY CASE THE STATUTE IS
SUPERSEDED BY THE ACTION TAKEN BY THE COMMISSION IN CONFORMITY TO THE
MOTOR CARRIER ACT. 

ONLY A WORD NEED BE SAID OF THE CONSTITUTIONAL OBJECTIONS.  THE
PRESENT RECORD LAYS A FIRM FOUNDATION FOR THE EXERCISE OF STATE
REGULATORY POWER, UNLESS THE STATE HAS BEEN DEPRIVED OF THAT POWER BY
CONGRESSIONAL ACTION AUTHORIZING THE COMMISSION TO SUBSTITUTE ITS
JUDGMENT FOR THAT OF THE STATE LEGISLATURE AS TO THE NEED AND PROPRIETY
OF THE STATE REGULATION.  THE NATURE AND EXTENT OF THE STATE POWER, IN
THE ABSENCE OF CONGRESSIONAL ACTION, TO REGULATE THE USE OF ITS
HIGHWAYS BY VEHICLES ENGAGED IN INTERSTATE COMMERCE HAS SO RECENTLY
BEEN CONSIDERED BY THIS COURT THAT IT IS UNNECESSARY TO REVIEW THE
AUTHORITIES NOW, OR TO RESTATE THE STANDARDS WHICH DEFINE THE STATE
POWER TO PRESCRIBE REGULATIONS ADAPTED TO PROMOTE SAFETY UPON ITS
HIGHWAYS AND TO INSURE THEIR CONSERVATION AND CONVENIENT USE BY THE
PUBLIC.  SEE SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S.
177.  JUDGED BY THESE STANDARDS WE CAN FIND NO BASIS FOR SAYING THAT
THE PENNSYLVANIA STATUTE IS NOT SUCH A REGULATION OR THAT IT IS A
DENIAL OF DUE PROCESS OR THAT IT INFRINGES THE COMMERCE CLAUSE IF
CONGRESS HAS NOT AUTHORIZED THE INTERSTATE COMMERCE COMMISSION TO
PROMULGATE A CONFLICTING RULE. 

THIS BRINGS US TO THE MORE SERIOUS QUESTION WHETHER CONGRESS, BY THE
ENACTMENT OF THE MOTOR CARRIER ACT OF 1935, AS A REGULATION OF
INTERSTATE COMMERCE, HAS UNDERTAKEN TO DEPRIVE THE STATE OF THE POWER
TO IMPOSE THE PRESENT REGULATION UPON VEHICLES MOVING IN INTERSTATE
COMMERCE.  WITH THE ADOPTION OF THE MOTOR CARRIER ACT, THE NATIONAL
GOVERNMENT EMBARKED ON THE REGULATION OF A TYPE OF INTERSTATE TRAFFIC
MANY OF WHOSE REGULATORY PROBLEMS BEAR LITTLE RESEMBLANCE TO THOSE OF
OTHER SYSTEMS OF TRANSPORTATION WHICH HAD PREVIOUSLY BEEN SUBJECTED TO
CONGRESSIONAL CONTROL.  THEY PRESENTED DIFFICULTIES AND COMPLEXITIES
DIFFERING FROM AND FAR EXCEEDING THOSE OF ANY EARLIER REGULATIONS OF
INTERSTATE COMMERCE.  OUR MOST EXTENSIVE EXPERIENCE HAD BEEN IN THE
NATIONAL REGULATION OF RAIL CARRIERS, OPERATING OVER ROADS AND WITH
ROLLING STOCK PRIVATELY OWNED AND CONTROLLED, WITH STANDARDS OF
ROADBED, OPERATION AND EQUIPMENT, SUBSTANTIALLY UNIFORM THROUGHOUT THE
COUNTRY, AND WITH THE MOVEMENT OF TRAFFIC ON EACH ROAD SUBJECT TO A
SINGLE UNIFIED CONTROL. 

REGULATION OF VEHICULAR TRAFFIC OVER THE HIGHWAYS OF THE UNITED
STATES INVOLVES A FAR MORE VARIED AND COMPLEX UNDERTAKING.  THE
HIGHWAYS OF THE COUNTRY HAVE BEEN BUILT BY THE STATES WITH SUBSTANTIAL
FINANCIAL AID FROM THE FEDERAL GOVERNMENT IN THE CONSTRUCTION OF SOME
OF THEM.  FN3 THEY ARE STATE OWNED, AND, IN GENERAL, ARE OPEN IN EACH
STATE TO USE BY PRIVATELY OWNED AND CONTROLLED MOTOR VEHICLES OF WIDELY
DIFFERENT CHARACTER AS RESPECTS WEIGHT, SIZE, AND EQUIPMENT.  FN4 THE
WIDTH, GRADES, CURVES, WEIGHT-BEARING CAPACITY, SURFACING AND OVERHEAD
OBSTRUCTIONS OF THE HIGHWAYS DIFFER WIDELY IN THE FORTY-EIGHT DIFFERENT
STATES AND IN DIFFERENT SECTIONS OF EACH STATE.  THERE ARE LIKE
VARIATIONS WITH RESPECT TO CONGESTION OF TRAFFIC.  STATE REGULATION,
DEVELOPED OVER A PERIOD OF YEARS, HAS BEEN DIRECTED TO THE SAFE AND
CONVENIENT USE OF THE HIGHWAYS AND THEIR CONSERVATION WITH REFERENCE TO
VARYING LOCAL NEEDS AND CONDITIONS. 

ASSUMPTION OF NATIONAL CONTROL INVOLVED PROBLEMS OF PECULIAR
DIFFICULTY AND DELICACY.  APART FROM REGULATIONS OF INTERSTATE MOTOR
TRAFFIC HAVING COMMERCIAL AIMS AND INVOLVING ROUTES, SCHEDULES, RATES
AND THE LIKE, ANY REGULATION ON A NATIONAL SCALE, WHATEVER ITS EXTENT,
HAS AN INTIMATE AND VITAL RELATION TO THE CONSERVATION OF HIGHWAYS
WHICH BELONG TO THE STATES, AND TO THEIR SAFE AND CONVENIENT USE BY THE
GENERAL PUBLIC IN BOTH INTERSTATE AND INTRASTATE TRAFFIC.  OUR ENTIRE
EXPERIENCE WITH THE GROWTH OF AUTOMOBILE TRAFFIC AND ITS REGULATION BY
THE STATES TEACHES THAT IN ANY FORM OF NON-COMMERCIAL REGULATION,
SAFETY IS A DOMINANT CONSIDERATION.  MOTOR VEHICLES ARE DANGEROUS
MACHINES WHOSE OPERATION IS ATTENDED BY SERIOUS HAZARD TO PERSONS AND
PROPERTY.  HESS V. PAWLOSKI, 274 U.S. 352, 356.  IN 1934, THE YEAR
BEFORE THE ENACTMENT OF THE MOTOR CARRIER ACT, THERE WERE 36,000
REPORTED DEATHS FROM MOTORCAR ACCIDENTS IN THE UNITED STATES.  FN5
EXCESSIVE SPEED, DEFECTIVE APPLIANCES, NEGLIGENT DRIVING, SIZE, WEIGHT
AND LOADING OF CARS IN CONJUNCTION WITH LOCAL CONDITIONS OF TRAFFIC AND
OF THE HIGHWAYS, CONTRIBUTED IN VARYING DEGREES TO THIS RECORD OF
DISASTER. 

IT IS IN THE LIGHT OF THIS HISTORY AND BACKGROUND THAT WE MUST
APPRAISE AND APPLY THE PROVISIONS OF THE MOTOR CARRIER ACT OF 1935. 
THE DECLARED POLICY OF THE ACT, SEC. 202(A), IS TO PRESERVE AND FOSTER
THE ECONOMIC AND COMMERCIAL ADVANTAGES OF AN EFFICIENT TRANSPORTATION
SYSTEM.  THE POWER TO REGULATE, WHICH IT CONFERS ON THE INTERSTATE
COMMERCE COMMISSION, EXTENDS IN SOME MEASURE TO SAFETY REGULATIONS. 

"IT SHALL BE THE DUTY OF THE COMMISSION - (1) TO REGULATE COMMON
CARRIERS BY MOTOR VEHICLE AS PROVIDED IN THIS PART, AND TO THAT END THE
COMMISSION MAY ESTABLISH REASONABLE REQUIREMENTS WITH RESPECT TO
CONTINUOUS AND ADEQUATE SERVICE, TRANSPORTATION OF BAGGAGE AND EXPRESS,
UNIFORM SYSTEMS OF ACCOUNTS, RECORDS, AND REPORTS, PRESERVATION OF
RECORDS, QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES, AND
SAFETY OF OPERATION AND EQUIPMENT." 

SUBDIVISION (2) IMPOSES A LIKE DUTY UPON THE COMMISSION TO REGULATE
"CONTRACT CARRIERS."  SUBDIVISION (3) IMPOSES THE DUTY 

"TO ESTABLISH FOR PRIVATE CARRIERS OF PROPERTY BY MOTOR VEHICLE, IF
NEED THEREFOR IS FOUND, REASONABLE REQUIREMENTS TO PROMOTE SAFETY OF
OPERATION, AND TO THAT END PRESCRIBE QUALIFICATIONS AND MAXIMUM HOURS
OF SERVICE OF EMPLOYEES, AND STANDARDS OF EQUIPMENT." 


"THE COMMISSION IS HEREBY AUTHORIZED TO INVESTIGATE AND REPORT ON THE
NEED FOR FEDERAL REGULATION OF THE SIZES AND WEIGHT OF MOTOR VEHICLES
AND COMBINATIONS OF MOTOR VEHICLES AND OF THE QUALIFICATIONS AND
MAXIMUM HOURS OF SERVICE OF EMPLOYEES OF ALL MOTOR CARRIERS AND PRIVATE
CARRIERS OF PROPERTY BY MOTOR VEHICLE; ...  " 

THE WORDS OF THIS SECTION INDICATE, AS ITS HISTORY DEMONSTRATES, THAT
IT WAS INTENDED TO RESERVE FROM THE REGULATORY POWER OF THE COMMISSION
THE REGULATION OF "SIZES AND WEIGHT OF MOTOR VEHICLES."  UNLIKE SEC.
204(A)(3), WHICH MAKES IT THE DUTY OF THE COMMISSION "IF NEED THEREFOR
IS FOUND" TO ESTABLISH REASONABLE REQUIREMENTS TO PROMOTE SAFETY OF
OPERATION AND TO PRESCRIBE STANDARDS OF EQUIPMENT FOR "PRIVATE CARRIERS
OF PROPERTY," SEC. 225 IMPOSES NO DUTY AND CONFERS NO AUTHORITY ON THE
COMMISSION TO REGULATE THE SIZES AND WEIGHTS OF MOTOR VEHICLES.  FN6
ITS AUTHORITY IS LIMITED TO INVESTIGATION AND REPORT OF THE NEED OF
SUCH REGULATION.  FN7 

THE BILL CONTAINING THE PROVISIONS OF SECS. 204 AND 225 WHICH WE HAVE
QUOTED, WAS PREPARED BY THE FEDERAL COORDINATOR OF TRANSPORTATION AND
ITS ADOPTION WAS RECOMMENDED IN HIS 1934 REPORT TO THE INTERSTATE
COMMERCE COMMISSION, WHICH TRANSMITTED THE REPORT AND PROPOSED BILL TO
THE SENATE WITH ITS FAVORABLE RECOMMENDATION.  SEN. DOC. NO. 152, 73RD
CONG., 2D SESS.  THE REPORT MADE NO MENTION OF THE SCOPE, PURPOSE OR
MEANING OF SEC. 225, OTHER THAN THE STATEMENT, P. 49, THAT IT PROVIDES
FOR "INVESTIGATION AND REPORT TO CONGRESS OF THE NEED, IF ANY, FOR
FEDERAL REGULATION OF THE SIZES AND WEIGHTS OF MOTOR VEHICLES."  THE
REPORT REFERRED, P. 32, TO THE FACTS THAT THE STATES REGULATE
EXTENSIVELY THE LENGTH, WIDTH, HEIGHT AND SPEED OF MOTOR VEHICLES, AND
THEIR MAXIMUM GROSS WEIGHTS AND REQUIRE THAT THEY "BE EQUIPPED WITH A
VARIETY OF SAFETY APPLIANCES"; THAT THESE REGULATIONS "ARE DESIGNED IN
PART TO PROTECT THE SAFETY AND CONVENIENCE OF THE PUBLIC IN ITS USE OF
THE HIGHWAYS AND IN PART TO PROTECT THE HIGHWAYS FROM EXCESSIVE WEAR
AND TEAR," AND THAT THE "REQUIREMENTS AS TO GROSS WEIGHTS, LENGTHS, AND
WIDTHS OF VEHICLES ARE OFTEN GROUNDED IN STATE POLICIES WITH RESPECT TO
THE DESIGN OF HIGHWAYS," WITH RESPECT TO THEIR WEIGHT SUSTAINING
CAPACITY AND THEIR CURVES.  IN TESTIFYING AT THE HEARINGS UPON THE BILL
BEFORE THE SENATE COMMITTEE ON INTERSTATE COMMERCE, THE COORDINATOR
EXPLAINED THE PROVISIONS OF SEC. 225 BY STATING: 

"WITH RESPECT TO SIZE AND WEIGHT OF VEHICLES  ...  WE DO NOT
UNDERTAKE IN THIS BILL TO COVER THAT SITUATION EXCEPT TO PROVIDE FOR A
THOROUGH INVESTIGATION OF IT BY THE COMMISSION WITH RECOMMENDATIONS TO
CONGRESS BECAUSE THERE IS INVOLVED NOT ONLY A QUESTION OF FACT AS TO
WHAT THE REGULATION SHOULD BE, BUT ALSO AS TO HOW FAR THE FEDERAL
GOVERNMENT HAS POWER TO INTERFERE WITH THE EXERCISE OF THE POLICE POWER
OF THE STATES WITH RESPECT TO THE USE OF THEIR HIGHWAYS.  THEY HAVE THE
RIGHT TO PROTECT THEIR HIGHWAYS AGAINST UNSAFE OR UNREASONABLE USE, BUT
WHETHER OR NOT THE FEDERAL GOVERNMENT CAN COME IN AND INTERFERE WITH IT
I CANNOT SAY AT THIS TIME."  HEARINGS BEFORE SENATE COMMITTEE ON
INTERSTATE COMMERCE ON S. 1629, 74TH CONG., 1ST SESS., (1935) P. 92. 
FN8 

AGAIN, PAGE 61, HE REFERRED TO "SIZES AND WEIGHTS" AS "AN EXTREMELY
IMPORTANT MATTER FROM THE STANDPOINT OF PUBLIC SAFETY AND
CONVENIENCE."  THIS COURT HAS ALSO HAD OCCASION TO POINT OUT THAT THE
SIZES AND WEIGHTS OF AUTOMOBILES HAVE AN IMPORTANT RELATION TO THE SAFE
AND CONVENIENT USE OF THE HIGHWAYS, WHICH ARE MATTERS OF STATE
CONTROL.  SPROLES V. BINFORD, 286 U.S. 374; SOUTH CAROLINA HIGHWAY
DEPT. V. BARNWELL BROS., SUPRA.  IT IS EVIDENT THAT THE PURPORT OF SEC.
225 IS TO RESERVE "SIZES AND WEIGHT" FROM THE REGULATORY POWERS OF THE
COMMISSION, QUITE AS MUCH WHEN RELATED TO SAFETY AS WHEN RELATED TO
HIGHWAY CONSTRUCTION, PENDING INVESTIGATION AND REPORT BY THE
COMMISSION OF THE NEED FOR SUCH REGULATION, AND FURTHER CONSIDERATION
OF THE MATTER BY CONGRESS.  SUCH HAS BEEN THE UNIFORM CONSTRUCTION OF
SEC. 225 BY COURTS HAVING OCCASION TO CONSIDER THE SUBJECT.  FN9 

ON THE ARGUMENT BEFORE US IT WAS CONCEDED THAT THE "SIZE AND WEIGHT
OF MOTOR VEHICLES," OF WHICH SEC. 225 SPEAKS, MUST BE TAKEN TO INCLUDE
THE SIZES AND WEIGHTS OF MOTOR VEHICLES AND THEIR LOADS.  THIS IS
EVIDENT BOTH BECAUSE AN INVESTIGATION OF SIZES AND WEIGHTS OF MOTOR
VEHICLES, APART FROM THEIR LOAD, WOULD BE USELESS SO FAR AS THE MAJOR
PROBLEMS OF SAFETY AND USE OF THE HIGHWAYS ARE CONCERNED AND BECAUSE,
AS PRESENTLY WILL APPEAR, THE STATE REGULATION OF SIZES AND WEIGHTS TO
BE INVESTIGATED HAS FROM THE BEGINNING INCLUDED SIZES AND WEIGHTS OF
THE LOADED VEHICLE.  THE POWER OF THE STATES TO REGULATE THE SIZES AND
WEIGHTS OF LOADED MOTOR VEHICLES WAS THUS LEFT UNDISTURBED.  SUCH OTHER
COURTS AS HAVE HAD OCCASION TO CONSIDER THE MATTER IN THE CASES ALREADY
NOTED HAVE ARRIVED AT THE SAME CONCLUSION.  FN10 

BUT THE QUESTION REMAINS WHETHER THE PENNSYLVANIA STATUTE IS A
REGULATION OF "SIZE AND WEIGHT" WITHIN THE MEANING OF SEC. 225, OR
WHETHER IT IS A REGULATION OF "SAFETY OF OPERATION AND EQUIPMENT,"
WHICH THE COMMISSION WAS AUTHORIZED TO MAKE BY SEC. 204(1)(2).  PERUSAL
OF THE PRESENT RECORD CAN LEAVE NO DOUBT THAT IN BOTH A TECHNICAL AND A
PRACTICAL SENSE SEC. 1033(C) IS A REGULATION OF WEIGHT AND SIZE OF THE
LOADED MOTOR VEHICLE, AND THAT THE PENNSYLVANIA LEGISLATURE INTENDED IT
TO BE SUCH.  FN11  BY PROVIDING THAT THE CARRIED CAR SHALL NOT BE
LOADED ABOVE THE CAB, THE STATUTE SETS PRACTICAL LIMITS TO THE HEIGHT
OF THE LOADED CAR AND PRECLUDES ITS PROJECTION BEYOND THE CAB OF THE
CARRIER CAR AND INTO THE LINE OF VISION OF ITS DRIVER.  IT IS ALSO A
RESTRICTION ON WEIGHT DISTRIBUTION OF THE LOADED CAR AND IN ITS AMENDED
FORM SPECIFICALLY PROHIBITS PLACING THE "WEIGHT" OF THE CARRIED CAR
ABOVE THE DRIVER.  FN12  THE HIGHEST COURT OF THE STATE HAS DECLARED
THAT SUCH ARE THE PURPOSES OF SUBSECTION (C), IN ORDER TO AVOID THE
SAFETY HAZARDS RESULTING FROM IMPROPER WEIGHT DISTRIBUTION AND THE
HEIGHT OF THE CARRIED CAR AT A POINT WHERE IT CANNOT BE OBSERVED BY THE
DRIVER.  AS INTERPRETED AND APPLIED BY THE STATE COURT, WE CAN NOT
REGARD THE REGULATION AS OTHER THAN AN EXERCISE OF THE STATE'S POWER TO
PROTECT THE SAFE AND CONVENIENT USE OF ITS HIGHWAYS THROUGH THE CONTROL
OF SIZE AND WEIGHT OF MOTOR VEHICLES PASSING OVER THEM, WHICH IT WAS
THE PURPOSE OF SEC. 225 TO RESERVE TO THE STATE FROM THE GRANT OF
REGULATORY POWER TO THE COMMISSION.  BEING THUS RESERVED WE THINK IT IS
UNAFFECTED BY THE AUTHORITY CONFERRED ON THE COMMISSION BY SEC. 204 TO
REGULATE "SAFETY OF OPERATION AND EQUIPMENT." 

THE COMMISSION IN ITS REPORT IN "CAR OVER CAB OPERATIONS," SUPRA,
GAVE NO CONSIDERATION TO THE EXTENT OF ITS AUTHORITY UNDER SEC. 204, TO
MAKE SAFETY REGULATIONS AFFECTING THE CAR OVER CAB PRACTICE OR TO THE
QUESTION WHETHER THE PENNSYLVANIA RESTRICTION IS IN FACT AND IN
PRACTICAL OPERATION A WEIGHT AND SIZE REGULATION, OR WHETHER THE
AUTHORITY TO MAKE SUCH REGULATIONS IS RESERVED TO THE STATES BY SEC.
225.  THE POWER OF THE COMMISSION TO REGULATE WITH RESPECT TO SAFETY IN
THE CASE OF COMMON AND CONTRACT CARRIERS IS DEFINED BY SEC. 204(A)(1)
AND (2), WHICH MAKES IT THE DUTY OF THE COMMISSION TO REGULATE "SAFETY
OF OPERATION AND EQUIPMENT."  IN THE EXERCISE OF THIS AUTHORITY THE
COMMISSION HAS MADE NO REGULATION CONCERNING SIZES AND WEIGHT OF MOTOR
VEHICLES OR THEIR LOADS.  BUT IN A BRIEF FILED IN THIS CAUSE IT
CONTENDS THAT THE PENNSYLVANIA STATUTE IS AN INFRINGEMENT OF THE
COMMISSION'S AUTHORITY TO REGULATE SAFETY OF EQUIPMENT.  IN ORDINARY
SPEECH THE LOAD OF A VEHICLE IS NOT SPOKEN OF AS A PART OF ITS
EQUIPMENT.  IN THE MOTOR CARRIER SAFETY REGULATIONS, PROMULGATED BY THE
COMMISSION, SAFETY OF EQUIPMENT IS TREATED AS SYNONYMOUS WITH OR THE
EQUIVALENT OF PARTS AND ACCESSORIES OF MOTOR CARS AFFECTING SAFETY. 
THE UNIFORM ACT REGULATING MOTOR CAR TRAFFIC ON HIGHWAYS, WHICH WAS
RECOMMENDED BY THE NATIONAL CONFERENCE OF STATE AND HIGHWAY SAFETY IN
1930 AND 1934, WHICH WAS REFERRED TO IN THE REPORT OF THE COORDINATOR,
PLACED ALL SIZE AND WEIGHT REGULATIONS IN A SINGLE "ARTICLE XVI, SIZE,
WEIGHT AND LOAD," SEPARATE FROM THE ARTICLES CONTAINING PROVISIONS
RELATING TO THE SPEED, DRIVING AND MOVEMENT OF MOTOR CARS AND FROM
"ARTICLE XV, EQUIPMENT," WHICH WAS CONFINED TO AUTOMOBILE PARTS AND
ACCESSORIES AND THEIR INSPECTION.  FN13 

BUT EVEN THOUGH THE PHRASE "OPERATION AND EQUIPMENT" OF MOTOR CARS
COULD BE TAKEN, WHEN STANDING ALONE, AS INCLUDING THE WEIGHT AND SIZE
OF THEIR LOADS, WE THINK IT PLAIN THAT IT CANNOT BE SO TAKEN WHEN READ
IN CONJUNCTION WITH THE RESERVATION IN SEC. 225 OF "SIZES AND WEIGHTS"
FROM THE REGULATORY POWER OF THE COMMISSION.  AS THE REPORT OF THE
COORDINATOR AND THE LEGISLATION IN THE SEVERAL STATES SHOWS, AND AS
THIS COURT HAS RECOGNIZED, SEE SPROLES V. BINFORD, SUPRA; SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, THE SIZES AND WEIGHTS
OF MOTOR VEHICLES AND THEIR LOADS PRESENT SAFETY PROBLEMS WHICH ARE
SPECIAL AND DISTINCT FROM THOSE INVOLVED IN THE DRIVING AND MOVEMENT OF
CARS ORDINARILY KNOWN AS THEIR OPERATION, AND FROM THEIR PARTS AND
ACCESSORIES ORDINARILY REFERRED TO AS MOTOR CAR EQUIPMENT.  AS WE HAVE
SEEN, ONE OF THE PURPOSES OF THE RESERVATION MADE IN SEC. 225 WAS TO
GIVE OPPORTUNITY FOR FURTHER STUDY AND CONSIDERATION BY THE COMMISSION
OF THE RELATION OF SIZES AND WEIGHTS OF MOTOR CARS TO THE PUBLIC SAFETY
AND CONVENIENCE, AS WELL AS TO ROAD CONSTRUCTION AND USE SO THAT THE
COMMISSION AND CONGRESS MIGHT BE ADVISED WHAT THE REGULATION OF THESE
SAFETY FACTORS SHOULD BE AND HOW FAR CONGRESS SHOULD INTERFERE WITH
THEIR REGULATION BY THE STATES. 

THE COUZENS BILL, S. 2793, SEC. 2(A)(1)(2), 72D CONG., 1ST SESS.,
DISCUSSED IN THE 1934 REPORT OF THE COORDINATOR, AUTHORIZED THE
COMMISSION TO PRESCRIBE REASONABLE REQUIREMENTS WITH RESPECT TO "SAFETY
OF OPERATION AND EQUIPMENT (INCLUDING THE WEIGHT, LENGTH, WIDTH AND
HEIGHT OF MOTOR VEHICLES USED BY SUCH CARRIERS)."  THIS PROPOSAL WAS
NOT ADOPTED AND IN THE BILL RECOMMENDED BY THE COORDINATOR AND THE
COMMISSION IN 1934 AND ENACTED AS THE MOTOR CARRIER ACT OF 1935, THE
PARENTHETICAL CLAUSE IN THE PROVISION AUTHORIZING REGULATION OF SAFETY
OF OPERATION AND EQUIPMENT AS IT APPEARED IN THE COUZENS BILL, WAS
TRANSFERRED TO SEC. 225, WHERE IT APPEARED AS "SIZES AND WEIGHT OF
MOTOR VEHICLES," FEDERAL REGULATION OF WHICH WAS RESERVED TO AWAIT THE
FUTURE ACTION OF CONGRESS.  THE CLAUSE WHICH WAS THUS RESORTED TO IN
THE EARLIER BILL TO INCLUDE REGULATIONS OF SIZES AND WEIGHT IN THE
AUTHORITY TO REGULATE "SAFETY OF OPERATION AND EQUIPMENT" WAS BY ITS
TRANSFER TO SEC. 225 OF THE ACT OF 1935 SIMILARLY MADE THE MEANS OF
WITHHOLDING FROM THE REGULATORY POWER OF THE COMMISSION REGULATIONS OF
SIZES AND WEIGHT AFFECTING SAFETY. 

AS A MATTER OF STATUTORY CONSTRUCTION CONGRESSIONAL INTENTION TO
DISPLACE LOCAL LAWS IN THE EXERCISE OF THE COMMERCE POWER IS NOT, IN
GENERAL, TO BE INFERRED UNLESS CLEARLY INDICATED BY THOSE
CONSIDERATIONS WHICH ARE PERSUASIVE OF THE STATUTORY PURPOSE.  THIS IS
ESPECIALLY THE CASE WHEN PUBLIC SAFETY AND HEALTH ARE CONCERNED.  KELLY
V. WASHINGTON, 302 U.S. 1, 10-14; H.P. WELCH CO. V. NEW HAMPSHIRE, 306
U.S. 79, 85 AND CASES CITED.  THERE ARE OTHER COGENT REASONS WHY THE
RESERVATION MADE BY SEC. 225 CANNOT BE GIVEN A NARROW CONSTRUCTION. 
THE HESITANCY MANIFESTED BY CONGRESS, UNTIL THE ADOPTION OF THE 1935
ACT, TO INTERFERE WITH THE STATE HIGHWAY REGULATIONS AND ITS FAILURE
THEN TO FOLLOW EARLIER AND MORE FAR-REACHING PROPOSALS ARE PERSUASIVE
AGAINST SUCH A CONSTRUCTION.  FN14  A THOROUGH INVESTIGATION BY THE
COMMISSION WHICH THE STATUTE AUTHORIZED WAS NECESSARY NOT ONLY TO
DETERMINE THE IMPORTANCE OF SIZES AND WEIGHT "FROM THE STANDPOINT OF
PUBLIC SAFETY AND CONVENIENCE," BUT ALSO TO RESOLVE THE UNCERTAINTY OF
THE DRAFTSMEN OF THE BILL AND PRESUMABLY OF CONGRESS "AS TO THE FACTS
WITH REFERENCE TO THE MATTER" AND "AS TO WHAT THE REGULATION SHOULD
BE."  S. DOC. NO. 152, 73RD CONG., 2D SESS., P. 61.  THE EXTENT TO
WHICH CONGRESS SHOULD, IF AT ALL, CURTAIL STATE REGULATION, COULD BE
DETERMINED ONLY WHEN THOSE DOUBTS WERE RESOLVED. 

A CONSIDERABLE PERIOD OF TIME WAS REQUIRED FOR PREPARATION FOR THE
INVESTIGATION AND FOR BRINGING IT TO A CONCLUSION.  THE INVESTIGATION
WHICH WAS AUTHORIZED IN NOVEMBER 1937, EX PARTE NO. M.C. 15, HAS NOT
YET PROCEEDED BEYOND THE PRELIMINARY STAGE OF GATHERING INFORMATION. 
IT COULD NOT BE ASSUMED THAT IN THE MEANTIME A RAPIDLY CHANGING
INDUSTRY WOULD NOT PRODUCE NEW TYPES OF VEHICLES INVOLVING NEW PROBLEMS
OF THE RELATION OF SIZES AND WEIGHT TO SAFETY SUCH AS ARE INVOLVED IN
THE PRESENT CASE.  A CONSTRUCTION OF THE RESERVATION MADE IN SEC. 225
IS NOT TO BE FAVORED WHICH WOULD DEPRIVE THE STATES OF AUTHORITY TO
MAKE SAFETY REGULATIONS OF SIZES AND WEIGHT BEFORE CONGRESS WAS
INFORMED BY A FULL INVESTIGATION AND REPORT OF THE COMMISSION OF THE
NATURE OF THE REGULATIONS, BOTH THOSE IN FORCE AND THOSE WHICH ARE
NEEDED, AND WHETHER IN THE LIGHT OF THE COMPETING DEMANDS FOR NATIONAL
UNIFORMITY AND FOR ACCOMMODATION TO LOCAL CONDITIONS, REGULATION OF
SIZES AND WEIGHT CAN BE BEST PRESCRIBED BY THE COMMISSION, BY THE STATE
LEGISLATURES, OR BY A DIVIDED AUTHORITY.  FOR THESE REASONS WE THINK
THAT THE RESERVATION OF STATE POWER BY SEC. 225 IS NOT RESTRICTED TO
THE PARTICULAR PROBLEMS OF WEIGHT AND SIZE WHICH THE TRAFFIC HAD
DEVELOPED AT THE MOMENT WHEN THE ACT WAS PASSED, OR WHICH WERE THEN
KNOWN TO THE COMMISSION, IN ADVANCE OF THE INVESTIGATION WHICH WAS TO
ASCERTAIN THE FACTS, WHAT THE REGULATION SHOULD BE AND HOW FAR
REGULATIONS OF SIZES AND WEIGHTS SHOULD BE WITHDRAWN FROM THE STATES. 

SIZES AND WEIGHTS WHICH AFFECT SAFETY, NOT EXCLUDING CONSIDERATION OF
LOCAL CONDITIONS, AS WELL AS THOSE WHICH AFFECT WEAR AND TEAR OF THE
HIGHWAYS WERE TO BE THE SUBJECT OF INVESTIGATION, AND IT IS THE SUBJECT
OF INVESTIGATION WHICH DEFINES THE RESERVATION FROM THE COMMISSION'S
AUTHORITY TO REGULATE.  HENCE THE PHRASE "SIZES AND WEIGHT" IN SEC.
225, WHEN SAFETY IS CONCERNED, IS NOT TO BE NARROWLY LIMITED TO THE
OVERALL LENGTH, WIDTH AND HEIGHT OF THE LOADED CARS AND TO THEIR GROSS
WEIGHT.  FOR AS WE HAVE SEEN, DISTRIBUTION OF WEIGHT AND DIMENSIONS OF
LOAD OR PARTICULAR PARTS OF IT IN CONNECTION WITH LOCAL CONDITIONS OF
CURVES, GRADES AND OVERHEAD OBSTRUCTION OF THE HIGHWAYS, HAVE AN
IMPORTANT RELATION TO SAFETY.  IN THE LIGHT OF THE INVESTIGATION
CONGRESS MIGHT CONCLUDE THAT THE REGULATION OF GROSS WEIGHTS AND
DIMENSIONS, CONCEDEDLY LEFT TO THE STATES, COULD NOT BE CONVENIENTLY OR
WISELY SEPARATED FROM REGULATION OF WEIGHT DISTRIBUTION AND PARTICULAR
DIMENSIONS. 

IT IS TRUE THAT THE REPORT OF THE COORDINATOR PRESENTING THE BILL FOR
CONGRESSIONAL ACTION PARTICULARIZED GROSS WEIGHT AND OVERALL DIMENSIONS
AS A COMMON SUBJECT OF REGULATION BY THE STATES AND AS A REASON FOR
MAKING THE INVESTIGATION.  BUT WE FIND NOTHING IN THE REPORT, OR IN HIS
TESTIMONY BEFORE THE SENATE COMMITTEE, OR ELSEWHERE IN THE LEGISLATIVE
HISTORY, TO SHOW THAT IT WAS INTENDED BY SEC. 225 TO CONFINE STATE
POWER TO REGULATION OF SIZES AND WEIGHTS OF AUTOMOBILES AND THEIR LOADS
TO GROSS WEIGHTS AND OVERALL DIMENSIONS.  THE BILL AS PROPOSED AND AS
ENACTED DID NOT SPECIFY ANY SUCH LIMITATION OF "SIZES AND WEIGHT," AND
IT WAS WELL KNOWN THAT STATE SIZE AND WEIGHT REGULATIONS THEN IN FORCE
OR PROPOSED WERE NOT SO RESTRICTED.    SCHEDULE B OF THE 1934 REPORT OF
THE COORDINATOR DISCLOSED, PAGE 213, THAT STATE REGULATION WAS THEN
CONCERNED WITH DISTRIBUTION OF LOAD WEIGHT BY AXLE AND WHEEL WEIGHT
REQUIREMENTS.  THE WEIGHT PROVISIONS OF THE UNIFORM ACT PROPOSED BY THE
NATIONAL CONFERENCE ON STATE AND HIGHWAY SAFETY IN 1930 AND 1934,
CONTAINED GROSS WEIGHT LIMITATIONS AND AXLE WEIGHT LIMITATIONS WHICH
INVOLVED DISTRIBUTION OF WEIGHT OF THE LOADED CAR.  THE PRELIMINARY
REPORT (NO. 1) OF THE INTERSTATE COMMERCE COMMISSION, BUREAU OF MOTOR
CARRIERS OF APRIL, 1940, P. 71, NOTES VARIOUS STATE REGULATIONS FIXING
AXLE WEIGHT OR WHEEL WEIGHT LIMITATIONS, SOMETIMES WITH AND SOMETIMES
WITHOUT A GROSS WEIGHT LIMITATION, AND STATES THAT THE COMBINATION OF
THESE FACTORS "IS BASICALLY INTENDED TO CONTROL NOT ONLY TOTAL GROSS
WEIGHT OF THE VEHICLE AND ITS LOAD BUT ALSO DISTRIBUTION OF THE LOAD ON
THE VEHICLE." 

THE PROPOSED UNIFORM ACT ALSO CONTAINED PROVISIONS, IN "ARTICLE XVI,
SIZE, WEIGHT AND LOAD" (SEC. 78(E) OF THE 1930 DRAFT; SEC. 142(D) OF
THE 1934 DRAFT), FOR THE DISTRIBUTION OR LOCATION OF LOAD AND ITS
PARTICULAR DIMENSIONS, INDEPENDENTLY OF GROSS WEIGHT AND OVERALL
MEASUREMENTS.  THEY DIRECTED THAT "THE LOAD UPON ANY VEHICLE  ...
SHALL NOT EXTEND MORE THAN THREE FEET BEYOND THE FRONT WHEELS OF SUCH
VEHICLE OR THE FRONT BUMPER OF SUCH VEHICLE IF IT IS EQUIPPED WITH SUCH
A BUMPER."  REPORT NO. 1 OF THE COMMISSION INDICATES THAT THIS
PROVISION HAS BEEN ADOPTED IN TWENTY-THREE STATES AND THAT THREE STATES
PROHIBIT ANY SUCH PROJECTION OF LOAD.  AS ALREADY NOTED, THE PRESENT
PENNSYLVANIA STATUTE REGULATING CAR OVER CAB OPERATION HAS BEEN ENACTED
IN SUBSTANCE IN WEST VIRGINIA.  FN15 

READING THE WORDS OF SEC. 225 IN THE LIGHT OF ITS LEGISLATIVE
HISTORY, AND MINDFUL OF THE PECULIAR CONDITIONS OF THE TRAFFIC AND THE
PROBLEMS OF STATE REGULATION TO WHICH THE SECTION MUST BE APPLIED, AND
OF ITS OBVIOUS PURPOSE TO POSTPONE UNTIL THE REPORT OF THE COMMISSION
DETERMINATION OF THE EXTENT TO WHICH CONGRESS SHOULD WITHDRAW FROM THE
STATES THEIR POWER TO REGULATE SIZES AND WEIGHT OF MOTOR VEHICLES, WE
CANNOT SAY THAT THE PHRASE AS USED IN THE STATUTE IS RESTRICTED TO
OVERALL MEASUREMENTS OR GROSS WEIGHT, OR THAT IT DOES NOT INCLUDE
PARTICULAR DIMENSIONS OF MOTOR VEHICLES AND THEIR LOADS AND THE
DISTRIBUTION OF LOAD, WHICH AFFECT SAFETY AS WELL AS THE WEAR AND TEAR
OF THE HIGHWAYS.  WE CONCLUDE THAT THE PENNSYLVANIA STATUTE NOW BEFORE
US IS A WEIGHT AND SIZE REGULATION WITHIN THE MEANING OF SEC. 225, AND
IS WITHIN THE REGULATORY AUTHORITY OF THE STATE RESERVED BY THAT
AFFIRMED. 

FN1  "(C)  NO PERSON SHALL OPERATE A VEHICLE ON THE HIGHWAYS OF THIS
COMMONWEALTH CARRYING ANY OTHER VEHICLE, ANY PART OF WHICH IS ABOVE THE
CAB OF THE CARRIER VEHICLE OR OVER THE HEAD OF THE OPERATOR OF SUCH
CARRIER VEHICLE." 

AFTER THE ARGUMENT OF THE APPEAL IN THIS CASE, BUT BEFORE THE DECREE
IN THE STATE SUPREME COURT, THIS SECTION WAS AMENDED TO READ: 

"(C) NO PERSON SHALL OPERATE A VEHICLE ON THE HIGHWAYS OF THIS
COMMONWEALTH CARRYING ANY OTHER VEHICLE, THE WEIGHT OF WHICH IS
DIRECTLY ABOVE THE CAB OF THE CARRIER VEHICLE OR DIRECTLY OVER THE HEAD
OF THE OPERATOR OF SUCH CARRIER VEHICLE."  ACT NO. 400 OF JUNE 27,
1939. 

THE SUPREME COURT OF PENNSYLVANIA, IN ITS OPINION, CONSIDERED THIS
AMENDMENT AND CONCLUDED THAT THE STATUTE BOTH BEFORE AND AFTER THE
AMENDMENT APPLIED TO THE VEHICLES USED BY APPELLANTS AND WAS DIRECTED
AT THE SAME EVILS, AND THAT NO ESSENTIAL CHANGE WAS MADE BY THE
AMENDMENT, A CONSTRUCTION WHICH WE ADOPT.  THE SUPREME COURT ALSO
CONCLUDED THAT AS THE AMENDMENT NAMED NO DATE WHEN IT WAS TO TAKE
EFFECT IT WOULD BECOME EFFECTIVE SOME TWO MONTHS LATER, ON SEPTEMBER 1,
1939, AS PROVIDED BY SEC. 4 OF THE STATUTORY CONSTRUCTION ACT OF MAY
28, 1937, P.L. 1019, 1020. 

FN2  THE REPORT OF THE INTERSTATE COMMERCE COMMISSION STATES, PAGE
133, THAT IN THIS PROCEEDING "THE ONLY EVIDENCE WAS INTRODUCED BY OR ON
BEHALF OF CARRIERS ENGAGED IN THE TYPE OF OPERATION UNDER
INVESTIGATION," THAT THE STATE OF PENNSYLVANIA DECLINED TO PARTICIPATE
IN THE PROCEEDING AND THAT A REPRESENTATIVE OF THE STATE INVITED THE
ATTENTION OF THE COMMISSION TO THE EVIDENCE WHICH HAD BEEN TAKEN IN THE
PRESENT SUIT, BUT THAT SUCH EVIDENCE WAS NOT MADE A PART OF THE RECORD
IN THE PROCEEDING BEFORE THE COMMISSION AND WAS NOT CONSIDERED BY IT.
THE COMMISSION, SO FAR AS THE REPORT DISCLOSES, GAVE NO CONSIDERATION
TO THE CONSEQUENCES OF PLACING THE CARRIED CAR ABOVE THE CAB OF THE
MOTOR CARRIER WHEN ACCIDENTS DO IN FACT OCCUR, TO THE EFFECT OF THE
WEIGHT DISTRIBUTION OF THE COMBINATION WHEN USED ON HIGHWAYS OF GRADES
AND CURVES OVER WHICH PETITIONERS OPERATE IN PENNSYLVANIA, AND ITS
TENDENCY TO CAUSE THE DRIVER OF THE COMBINATION TO HOLD TO THE MIDDLE
OF THE ROAD TO AVOID INJURY TO THE CARRIED CAR ON THE TREE-LINED
HIGHWAYS OF THE STATE, ALL OF WHICH WERE DEEMED BY THE STATE COURTS IN
THE PRESENT CASE TO HAVE AN IMPORTANT BEARING ON SAFETY. 

FN3  FOR THE SIGNIFICANCE OF FEDERAL AID, SEE HEARINGS BEFORE SENATE
COMMITTEE ON INTERSTATE COMMERCE ON S. 2793, 72D CONG., 1ST SESS.
(1932), P. 217.  SEE ALSO NASHVILLE, C. & ST. L. RY. V. WALTERS, 294
U.S. 405, 417. 

FN4  IT IS ESTIMATED THAT 85 PER CENT OF ALL TRUCKS ARE PRIVATELY
OWNED AND OPERATED, AND THAT OVER 200,000 SEPARATE TRUCKS WOULD BE
SUBJECT TO THE FEDERAL REGULATION.  SEE HEARINGS BEFORE SENATE
COMMITTEE ON INTERSTATE COMMERCE ON S. 2793, 72D CONG., 1ST SESS., P.
223; S. DOC. 152, 73D CONG., 2D SESS., P. 28(1934); HEARINGS BEFORE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ON H.R. 5262, 74TH
CONG., 1ST SESS. (1935), P. 156, ET SEQ. 

FN5  ACCIDENT FACTS (1936) PUBLISHED BY NATIONAL SAFETY COUNSEL,
INC. 

FN6  CF. COORDINATION OF MOTOR TRANSPORTATION, 182 I.C.C. 263, 387,
RECOMMENDATION 11. 

FN7  ON NOVEMBER 8, 1937, THE COMMISSION ORDERED AN INVESTIGATION 

"IN THE MATTER OF REGULATIONS GOVERNING THE SIZES AND WEIGHT OF MOTOR
VEHICLES AND COMBINATION OF MOTOR VEHICLES USED BY COMMON AND CONTRACT
CARRIERS  ...  AND PRIVATE CARRIERS.  ... 

"1.  TO ENABLE THE COMMISSION TO MAKE A REPORT UNDER THE PROVISIONS
OF SECTION 225 ON THE NEED FOR FEDERAL REGULATION OF THE SIZES AND
WEIGHT OF MOTOR VEHICLES AND COMBINATIONS THEREOF. 

"2.  TO ENABLE THE COMMISSION TO PRESCRIBE REASONABLE REQUIREMENTS
UNDER THE PROVISIONS OF SECTION 204 OF THE ACT AS TO THE SIZES AND
WEIGHT OF MOTOR VEHICLES AND COMBINATIONS THEREFOR INSOFAR AS THEY
AFFECT THE SAFETY OF OPERATION." 

THE COMMISSION IS NOW ENGAGED IN MAKING ITS INVESTIGATION AND HAS
MADE NO REPORT OF ITS FINDINGS OR CONCLUSIONS.  REPORT NO. 1, A
PRELIMINARY STUDY AS YET UNPUBLISHED (APRIL, 1940), MADE BY THE BUREAU
OF MOTOR CARRIERS, INTERSTATE COMMERCE COMMISSION, IS DEVOTED TO AN
ANALYSIS OF STATE LIMITATIONS OF SIZES AND WEIGHTS OF MOTOR VEHICLES. 

FN8  ON PAGE 61 OF THE REPORT THE COORDINATOR STATED:  "BUT ON THIS
QUESTION OF SIZES AND WEIGHT OF MOTOR VEHICLES, WHICH IS AN EXTREMELY
IMPORTANT MATTER FROM THE STANDPOINT OF PUBLIC SAFETY AND CONVENIENCE,
THERE IS NOT ONLY THE QUESTION HERE AS TO WHAT THOSE SIZES AND WEIGHTS
OUGHT TO BE FROM THE STANDPOINT OF ROAD CONSTRUCTION AND ROAD USE, BUT
THERE IS ALSO THE LEGAL QUESTION AS TO WHETHER THE FEDERAL GOVERNMENT
CAN EXERCISE POWER OVER THE MATTER, OR WHETHER IT IS A MATTER
EXCLUSIVELY WITHIN THE JURISDICTION OF THE STATES.  IT WAS BECAUSE OF
DOUBTS NOT ONLY AS TO THE FACTS WITH REFERENCE TO THAT MATTER, BUT ALSO
TO THE LAW THAT PROVISIONS WERE MADE FOR THIS INVESTIGATION." 

THE COMMITTEE REPORTS MAKE NO COMMENT ON SEC. 225.  SEE S. REPT. NO.
482, 74TH CONG., 1ST SESS.; H. REPT. NO. 1645, 74TH CONG., 1ST SESS. 

FN9  L. & L. FREIGHT LINES V. RAILROAD COMMISSION, 17 F.SUPP. 
13(1936); BARNWELL BROS. V. SOUTH CAROLINA STATE HIGHWAY DEPT., 17
F.SUPP.  803(1937); WERNER TRANSPORTATION CO. V. HUGHES, 19 F.SUPP. 
425(1937); HOUSTON & NORTH TEXAS FREIGHT LINES V. PHARES, 19 F.SUPP. 
420(1937); MORRISON V. STATE, 133 TEX. CR. APP. 141; 109 S.W.2D
205(1937); YELLOW CAB TRANSIT CO. V. TUCK, 115 S.W.2D 455(TEX.  CIV. 
APP. 1938); SEE H.P. WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79(1939). 

UPON THE APPEAL IN SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS.,
SUPRA, TO THE SUPREME COURT, RESPONDENTS ABANDONED THEIR CONTENTION IN
THE TRIAL COURT THAT POWER TO REGULATE THE LOADED WEIGHT AND SIZE OF
MOTOR VEHICLES HAD NOT BEEN WITHHELD FROM THE COMMISSION BY SEC. 225. 
303 U.S. 177. 

FN10  SEE NOTE 9, SUPRA. 

FN11  IN ADDITION TO SUBSECTION (C) OF SEC. 1033, WHICH IN ITS
AMENDED FORM IS SPECIFICALLY DIRECTED TO THE LOCATION OF THE "WEIGHT"
OF THE CARRIED CAR, THE SECTION CONTAINS THREE OTHER SUBDIVISIONS WHICH
AFFECT SIZE AND WEIGHT DISTRIBUTION OF THE LOADED VEHICLE.  SUBSECTION
(A) PROHIBITS THE OPERATION OF VEHICLES "HAVING TWO LEVELS FOR THE
CARRIAGE OF OTHER VEHICLES."  SUBDIVISION (B) PROHIBITS OPERATION OF
VEHICLES CARRYING OTHER VEHICLES ANY PART OF WHICH IS MORE THAN 115
INCHES FROM THE GROUND; AND SUBDIVISION (D) PROHIBITS THE OPERATION OF
VEHICLES CARRYING ANY OTHER VEHICLE "ANY AXLE OF WHICH IS MORE THAN 3
FEET HIGHER THAN ANY OTHER AXLE ON SUCH CARRYING VEHICLE."  SUBSECTIONS
(A), (B) AND (D) DO NOT BECOME EFFECTIVE UNTIL JANUARY 1, 1942.  WEST
VIRGINIA HAS A STATUTE CONTAINING SIMILAR PROVISIONS.  CH. 88, ACTS OF
W. VA., 1939. 

FN12  SEE NOTE 1, SUPRA. 

FN13  SEE UNIFORM ACT REGULATING TRAFFIC ON HIGHWAYS, IV, NATIONAL
CONFERENCE ON STREET AND HIGHWAY SAFETY (1930), 38, 49; UNIFORM ACT
REGULATING TRAFFIC ON HIGHWAYS, V, BUREAU OF PUBLIC ROADS, UNITED
STATES DEPARTMENT OF AGRICULTURE (1934), 23, 35. 

FN14  PRIOR TO THE 70TH CONGRESS, THE BILLS FOR FEDERAL REGULATION
CONTAINED NO PROVISIONS OF ANY KIND RELATING TO SIZE AND WEIGHT. 
BEGINNING WITH THE 70TH CONGRESS THE BILLS ALMOST UNIFORMLY PROVIDED
THAT INTERSTATE CARRIERS SHOULD REMAIN SUBJECT TO STATE REGULATIONS
RELATING "TO THE MAINTENANCE, PROTECTION, SAFETY, OR USE OF THE
HIGHWAYS THEREIN, WHICH DO NOT DISCRIMINATE AGAINST MOTOR VEHICLES USED
IN INTERSTATE COMMERCE."  THE RAYBURN BILL WHICH THE INTERSTATE
COMMERCE COMMISSION APPROVED, CONTAINED SUCH A CLAUSE (S. DOC. 152, 73D
CONG., 2ND SESS., 25).  ONLY THE COUZENS BILL (S. 2793, 72D CONG., 1ST
SESS.) AFFIRMATIVELY PRESCRIBED FEDERAL REGULATION.  THE DILL BILL (S.
3171, 73D CONG., 2D SESS.) AND S. 1629, 74TH CONG., 1ST SESS., WHICH
WAS FINALLY ENACTED AS THE MOTOR CARRIER ACT, ENVISAGED THE POSSIBILITY
OF SUCH REGULATION OF SIZE AND WEIGHTS BUT ONLY AFTER A REPORT TO
CONGRESS.  FOR A DISCUSSION OF THESE BILLS SEE KAUPER, FEDERAL
REGULATION OF MOTOR CARRIERS, 33 MICH. L. REV. 239, 240-243, NOTES 128,
129, 132. 

FN15  SEE NOTE 11, SUPRA.
..END :



















UNION LAND BANK V. BYERLY, 310 U.S. 1 


NO. 579.  ARGUED MARCH 6, 1940.  - DECIDED APRIL 22, 1940.  - 106 F.2D
576, REVERSED. 


1.  UNDER SEC. 75 OF THE BANKRUPTCY ACT, PRIOR TO THE AMENDMENT OF
AUGUST 28, 1935, AN ORDER OF THE BANKRUPTCY COURT, MADE IN A PROCEEDING
FOR COMPOSITION AND EXTENSION, AND PERMITTING A SHERIFF'S SALE TO BE
MADE, SUBJECT TO CONFIRMATION, UNDER A DECREE OF FORECLOSURE PREVIOUSLY
ENTERED IN A STATE COURT, WAS ERRONEOUS IF NOT GRANTED ON PETITION AND
AFTER HEARING AND REPORT BY THE CONCILIATION COMMISSIONER, BUT WAS NOT
VOID AND COULD NOT BE ATTACKED COLLATERALLY IN A STATE COURT.  P. 7. 

2.  JURISDICTION OF A STATE COURT IN FORECLOSURE, SUSPENDED BY THE
INSTITUTION OF A PROCEEDING UNDER SEC. 75 OF THE BANKRUPTCY ACT, AGAIN
ATTACHED UPON DISMISSAL OF THE BANKRUPTCY CASE AND EMPOWERED THE STATE
COURT TO CONFIRM A FORECLOSURE SALE PREVIOUSLY MADE AND TO ORDER A
SHERIFF'S DEED.  P. 8. 

3.  REINSTATEMENT UNDER THE ACT OF 1935, SUPRA, OF A PROCEEDING UNDER
SEC. 75(S) PREVIOUSLY DISMISSED, DID NOT INVALIDATE A SHERIFF'S SALE
AND DEED WHICH WERE CONFIRMED AND AUTHORIZED BY A STATE COURT ACTING
WITHIN ITS JURISDICTION DURING THE INTERVAL BETWEEN THE DISMISSAL OF
THE BANKRUPTCY CASE AND THE MOTION TO REINSTATE IT.  P. 8. 

4.  THERE IS NO OCCASION TO REFER A CAUSE UNDER SEC. 75 OF THE
BANKRUPTCY ACT TO A CONCILIATION COMMISSIONER FOR THE ADMINISTRATION OF
PROPERTY WHICH, BY REASON OF FORECLOSURE PROCEEDINGS ALREADY
CONSUMMATED IN A STATE COURT, NO LONGER BELONGS TO THE DEBTOR.  P. 10. 

UNION JOINT STOCK LAND BANK OF DETROIT V. BYERLY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 309 U.S. 643, TO REVIEW A JUDGMENT REVERSING THE DISTRICT
COURT IN BANKRUPTCY WHICH, IN A PROCEEDING UNDER SEC. 75(S), DENIED
REHEARING OF AN ORDER OF DISCLAIMER AND REFUSED TO REFER THE CAUSE TO A
CONCILIATION COMMISSIONER. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

SEPTEMBER 1, 1932, THE PETITIONER INSTITUTED A MORTGAGE FORECLOSURE
SUIT AGAINST RESPONDENT IN THE COMMON PLEAS COURT OF MADISON COUNTY,
OHIO.  THE CAUSE WAS PROSECUTED TO JUDGMENT AND ADVERTISEMENT WAS MADE
OF A SHERIFF'S SALE OF THE PROPERTY TO TAKE PLACE NOVEMBER 24, 1934. 

NOVEMBER 19, 1934, THE RESPONDENT FILED HIS PETITION IN THE UNITED
STATES DISTRICT COURT UNDER SEC. 75 OF THE BANKRUPTCY ACT,  FN1  AND
THE COURT ISSUED AN ORDER RESTRAINING PROCEEDINGS IN THE FORECLOSURE
SUIT UNTIL THE FURTHER ORDER OF THE COURT. 

NOVEMBER 23, 1934, THE DISTRICT COURT, ON APPLICATION OF THE
PETITIONER, WITHOUT REFERENCE OF THE MATTER TO A CONCILIATION
COMMISSIONER, MODIFIED THE RESTRAINING ORDER TO PERMIT THE SALE OF THE
PREMISES AS ADVERTISED BUT ENJOINED ANY FURTHER PROCEEDINGS,
PARTICULARLY CONFIRMATION OF THE SALE OR EXECUTION OF SHERIFF'S DEED. 

NOVEMBER 24, 1934, THE SHERIFF, AS PERMITTED BY THE MODIFICATION OF
THE RESTRAINING ORDER, HELD THE SALE AS ADVERTISED.  THE PETITIONER BID
THE PROPERTY IN AND THE SHERIFF MADE RETURN OF THE SALE. 

DECEMBER 14, 1934, THE DISTRICT COURT APPROVED THE RESPONDENT'S
PETITION UNDER SEC. 75 OF THE BANKRUPTCY ACT AND ORDERED A REFERENCE TO
A CONCILIATION COMMISSIONER.  THE LATTER REPORTED THAT NO AGREEMENT
COULD BE REACHED BETWEEN THE RESPONDENT AND HIS CREDITORS. 

FEBRUARY 11, 1935, THE RESPONDENT ABANDONED PROCEEDINGS UNDER
SUBSECTIONS (A) TO (R) OF SEC. 75 AND FILED AN AMENDED PETITION TO BE
ADJUDGED A BANKRUPT PURSUANT TO SEC. 75(S).  FN2 

MAY 27, 1935, THIS COURT HELD CERTAIN FEATURES OF SEC. 75(S)
UNCONSTITUTIONAL.  LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295
U.S. 555. 

AUGUST 26, 1935, ON THE APPLICATION OF THE RESPONDENT, THE DISTRICT
COURT ORDERED THAT, BECAUSE OF THE UNCONSTITUTIONALITY OF SEC. 75(S),
THE RESPONDENT'S PETITION AND AMENDED PETITION BE DISMISSED AND THAT
THE CASE BE TERMINATED. 

AUGUST 28, 1935, SEC. 75 WAS AMENDED  FN3  TO MEET THE DECISION IN
LOUISVILLE BANK V. RADFORD, SUPRA.  THE ACT, AS SO AMENDED, PROVIDED IN
PARAGRAPH 5 OF SEC. 75(S): 

"THIS ACT SHALL BE HELD TO APPLY TO ALL EXISTING CASES NOW PENDING IN
ANY FEDERAL COURT, UNDER THIS ACT, AS WELL AS TO FUTURE CASES; AND ALL
CASES THAT HAVE BEEN DISMISSED BY ANY CONCILIATION COMMISSIONER,
REFEREE, OR COURT BECAUSE OF THE SUPREME COURT DECISION HOLDING THE
FORMER SUBSECTION (S) UNCONSTITUTIONAL, SHALL BE PROMPTLY REINSTATED,
WITHOUT ANY ADDITIONAL FILING FEES OR CHARGES." 

SEPTEMBER 10, 1935, THE SHERIFF'S SALE WAS CONFIRMED BY THE COMMON
PLEAS COURT.  SUBSEQUENTLY THIS ACTION WAS, ON APPEAL BY RESPONDENT,
AFFIRMED BY THE COURT OF APPEALS OF MADISON COUNTY. 

SEPTEMBER 11, 1935, THE SHERIFF'S DEED WAS DELIVERED TO THE
PETITIONER AND WAS RECORDED. 

SEPTEMBER 24, 1935, THE RESPONDENT MOVED THE DISTRICT COURT FOR
REINSTATEMENT OF HIS BANKRUPTCY CASE.  THE MOTION WAS GRANTED BUT
APPARENTLY NO AMENDED PETITION HAS BEEN FILED NOR ANY ADJUDICATION
ENTERED UNDER SEC. 75(S). 

MAY 8, 1936, THE PETITIONER MOVED THE DISTRICT COURT FOR AN ORDER OF
DISCLAIMER OF THE REAL ESTATE IN QUESTION. 

OCTOBER 22, 1936, AN ORDER OF DISCLAIMER WAS ENTERED.  OCTOBER 26 A
PETITION FOR REHEARING WAS FILED BY THE RESPONDENT AND WAS ENTERTAINED
BY THE COURT. 

APRIL 17, 1937, THE RESPONDENT MOVED THE DISTRICT COURT THAT THE
PROCEEDINGS IN BANKRUPTCY BE REFERRED TO A CONCILIATION COMMISSIONER
PURSUANT TO SEC. 75(S). 

MAY 6, 1937, THE DISTRICT COURT OVERRULED THE RESPONDENT'S PETITION
FOR A REHEARING OF THE ORDER OF DISCLAIMER. 

MAY 8, 1937, THE DISTRICT COURT OVERRULED THE MOTION OF THE
RESPONDENT TO REFER THE CAUSE TO A CONCILIATION COMMISSIONER. 

MAY 27, 1937, THE RESPONDENT PETITIONED THE DISTRICT COURT FOR AN
APPEAL TO THE CIRCUIT COURT OF APPEALS FROM THE ORDER DENYING HIS
PETITION FOR REHEARING OF THE ORDER OF DISCLAIMER AND FROM THE ORDER
DENYING HIS MOTION TO REFER THE CAUSE TO A CONCILIATION COMMISSIONER
AND, ON THE SAME DATE, THE DISTRICT COURT ALLOWED AN APPEAL. 

JUNE 3, 1937, THE RESPONDENT PETITIONED THE CIRCUIT COURT OF APPEALS
FOR LEAVE TO APPEAL FROM THE ORDERS OF THE DISTRICT COURT AND, JUNE 7,
1937, LEAVE WAS GRANTED. 

THE CIRCUIT COURT OF APPEALS REVERSED THE ORDERS OF THE DISTRICT
COURT, HOLDING THAT, AT THE TIME OF FILING HIS NEW PETITION UNDER SEC.
75, AS AMENDED, THE RESPONDENT HAD A PROPERTY RIGHT - A RIGHT OF
REDEMPTION - IN THE MORTGAGED PREMISES, WHICH HAD NOT BEEN CUT OFF BY
THE SALE AND ITS CONFIRMATION IN THE STATE COURT, AND THAT THE CAUSE
SHOULD BE REFERRED TO A CONCILIATION COMMISSIONER AND PROSECUTED BEFORE
HIM.  FN4  ON ACCOUNT OF THE IMPORTANCE OF THE QUESTION INVOLVED IN THE
ADMINISTRATION OF THE BANKRUPTCY ACT, WE GRANTED CERTIORARI. 

THE PETITIONER ASSERTS THAT THE COURT BELOW ERRED, AS THE ACTION OF
THE DISTRICT COURT MODIFYING THE RESTRAINING ORDER AND PERMITTING A
SALE OF THE MORTGAGED PREMISES WAS AUTHORIZED BY THE BANKRUPTCY ACT
AND, IF NOT, IT IS BINDING UPON THE RESPONDENT SINCE HE FAILED TO
EXCEPT TO OR APPEAL FROM IT. 

THE PETITIONER FURTHER ASSERTS THAT THE RESPONDENT'S PROCUREMENT OF
THE TERMINATION OF THE ORIGINAL BANKRUPTCY CASE AMOUNTED TO A WAIVER OF
ANY IRREGULARITY WHICH OCCURRED WHILE THE PROCEEDING WAS PENDING AND
PRECLUDED THE RESPONDENT FROM OBJECTING TO SUCH IRREGULARITY.  FURTHER,
PETITIONER CONTENDS THAT THE SALE MADE BY THE SHERIFF DID NOT CHANGE
THE LEGAL STATUS OF THE DEBTOR AND HIS PROPERTY SINCE HIS RIGHT OF
REDEMPTION, UNDER OHIO LAW, REMAINED UNTIL CONFIRMATION OF THE SALE BY
THE STATE COURT; AND, ALTHOUGH THAT COURT WAS WITHOUT JURISDICTION
WHILE THE ORIGINAL BANKRUPTCY PROCEEDING WAS PENDING, IT REGAINED SUCH
JURISDICTION BY THE TERMINATION OF THE BANKRUPTCY CASE, AND HAD
EXCLUSIVE JURISDICTION OF THE PARTIES AND THE SUBJECT MATTER, WHEN THE
DECREE OF CONFIRMATION WAS ENTERED.  THE CLAIM IS THAT THE DECREE OF
CONFIRMATION CANNOT BE COLLATERALLY ATTACKED IN THE BANKRUPTCY COURT. 

THE RESPONDENT, ON THE OTHER HAND, ARGUES THAT THE EXPRESS PROVISIONS
OF SEC. 75, IN FORCE AT THE TIME THE SALE WAS MADE, RENDERED VOID THE
DISTRICT COURT'S PERMISSION TO MAKE THE SALE AND THE SHERIFF'S ACTION
IN MAKING IT; AND THAT CONFIRMATION OR DELIVERY OF A DEED CAN GIVE NO
VALIDITY TO SUCH VOID ACTION, WHICH THE BANKRUPTCY COURT SHOULD,
THEREFORE, HAVE DISREGARDED. 

FIRST.  THE ACTION OF THE DISTRICT COURT IN PERMITTING THE HOLDING OF
THE SALE WAS NOT VOID BUT VOIDABLE; AND THE SALE MADE PURSUANT THERETO
WAS NOT VOID. 

BANKRUPTCY PROCEEDING, PROVIDED: 

"(E)  ...  AFTER THE FILING OF THE PETITION AND PRIOR TO THE
CONFIRMATION OR OTHER DISPOSITION OF THE COMPOSITION OR EXTENSION
PROPOSAL BY THE COURT, THE COURT SHALL EXERCISE SUCH CONTROL OVER THE
PROPERTY OF THE FARMER AS THE COURT DEEMS IN THE BEST INTERESTS OF THE
FARMER AND HIS CREDITORS." 

"(N)  THE FILING OF A PETITION PLEADING FOR RELIEF UNDER THIS SECTION
SHALL SUBJECT THE FARMER AND HIS PROPERTY, WHEREVER LOCATED, TO THE
EXCLUSIVE JURISDICTION OF THE COURT.  IN PROCEEDINGS UNDER THIS
POWERS OF THE COURT, THE TITLE, POWERS, AND DUTIES OF ITS OFFICERS, THE
DUTIES OF THE FARMER, AND THE RIGHTS AND LIABILITIES OF CREDITORS, AND
OF ALL PERSONS WITH RESPECT TO THE PROPERTY OF THE FARMER AND THE
JURISDICTION OF THE APPELLATE COURTS, SHALL BE THE SAME AS IF A
VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN FILED AND A DECREE OF
ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE FARMER'S PETITION OR
ANSWER WAS FILED." 

"(O)  EXCEPT UPON PETITION MADE TO AND GRANTED BY THE JUDGE AFTER
HEARING AND REPORT BY THE CONCILIATION COMMISSIONER, THE FOLLOWING
PROCEEDINGS SHALL NOT BE INSTITUTED, OR IF INSTITUTED AT ANY TIME PRIOR
TO THE FILING OF A PETITION UNDER THIS SECTION, SHALL NOT BE
MAINTAINED, IN ANY COURT OR OTHERWISE, AGAINST THE FARMER OR HIS
PROPERTY, AT ANY TIME AFTER THE FILING OF THE PETITION UNDER THIS
COMPOSITION OR EXTENSION PROPOSAL BY THE COURT:" 

     . .         .         .         . 

"(6)  SEIZURE, DISTRESS, SALE, OR OTHER PROCEEDINGS UNDER AN
EXECUTION OR UNDER ANY LEASE, LIEN, CHATTEL MORTGAGE, CONDITIONAL SALE
AGREEMENT, CROP PAYMENT AGREEMENT, OR MORTGAGE." 

THE PROVISIONS OF SUBSECTION (P) AS IT WAS WHEN THE PETITION WAS
FILED HAVE NO APPLICATION.  THAT SUBSECTION WAS AMENDED BY THE ACT OF
AUGUST 28, 1935, SUPRA, TO PROVIDE "THE PROHIBITIONS OF SUBSECTION (O)
SHALL APPLY TO ALL JUDICIAL AND OFFICIAL PROCEEDINGS IN ANY COURT OR
UNDER THE DIRECTION OF ANY OFFICIAL  ...  "  THIS AMENDMENT WAS MADE
AFTER THE DISMISSAL OF THE BANKRUPTCY CASE. 

EXCLUSIVE JURISDICTION OF THE DEBTOR AND HIS PROPERTY VESTED IN THE
DISTRICT COURT ON THE FILING OF THE PETITION.  UP TO THAT TIME
JURISDICTION OF THE DEBTOR AND THE MORTGAGED PROPERTY WAS IN THE STATE
COURT.  WITHOUT ACTION BY THE DISTRICT COURT THE STATE COURT COULD NOT
HAVE PROCEEDED FURTHER.  FN5  BUT WITHOUT CHANGING THE STATUS OF THE
DEBTOR'S RIGHT OF REDEMPTION THE FEDERAL COURT GAVE PERMISSION TO THE
STATE OFFICER TO HOLD THE SALE.  THE SALE WAS, HOWEVER, INCOMPLETE
UNTIL CONFIRMATION BY THE COURT.  FN6  UNTIL CONFIRMED IT AMOUNTED TO
AN UNACCEPTED OFFER TO PURCHASE.  NO SALE WAS CONSUMMATED WHILE THE
BANKRUPTCY PROCEEDING WAS PENDING. 

IN VIEW OF THE PROVISIONS OF SUBSECTION (O), IT WAS ERROR FOR THE
DISTRICT COURT, IN THE ABSENCE OF THE PRELIMINARY STEPS REQUIRED BY
THAT SUBSECTION, TO PERMIT THE SHERIFF TO HOLD THE SALE.  FN7 BUT THE
COURT HAD JURISDICTION IN THE PREMISES.  ERROR COMMITTED BY IT IN THE
EXERCISE OF THAT JURISDICTION COULD HAVE BEEN CORRECTED BY APPEAL FROM
ITS ORDER.  FN8  THE STATE COURT AND ITS OFFICER, THE SHERIFF, WERE
ENTITLED, IN VIEW OF THE DISTRICT COURT'S PLENARY JURISDICTION OVER THE
DEBTOR AND HIS PROPERTY, TO RELY UPON THE ORDER GRANTING PERMISSION TO
MAKE THE SALE.  THE DISTRICT COURT DID NOT LOSE JURISDICTION BY
ERRONEOUSLY CONSTRUING OR APPLYING PROVISIONS OF THE STATUTE UNDER
WHICH IT ADMINISTERED THE BANKRUPT ESTATE.  ITS ORDER WAS VOIDABLE, BUT
NOT VOID, AND WAS NOT TO BE DISREGARDED OR ATTACKED COLLATERALLY IN THE
STATE COURT.  FN9 

SECOND.  THE TERMINATION OF THE BANKRUPTCY PROCEEDING RESTORED THE
JURISDICTION AND POWER OF THE STATE COURT AND ITS FURTHER PROCEEDINGS
IN THE FORECLOSURE SUIT WERE NOT SUBJECT TO ATTACK IN THE BANKRUPTCY
COURT. 

ALTHOUGH THE STATE COURT'S JURISDICTION WAS SUPERSEDED BY THAT OF THE
BANKRUPTCY COURT, IT AGAIN ATTACHED UPON THE DISMISSAL OF THE
BANKRUPTCY CASE, AND, THENCEFORWARD, AS RESPECTS THE FORECLOSURE SUIT,
AND THE STATE COURT'S PROCEDURE, IT WAS AS IF NO BANKRUPTCY CASE HAD
EVER EXISTED.  WITH JURISDICTION OF THE PARTIES AND THE SUBJECT MATTER,
THE STATE COURT ENTERED A DECREE CONFIRMING THE SALE AND AUTHORIZING A
DEED, THE SHERIFF EXECUTED HIS DEED, WHICH WAS DULY RECORDED, AND THE
PETITIONER WENT INTO POSSESSION AS PURCHASER OF THE MORTGAGED
PREMISES.  THEREAFTER THE RESPONDENT MOVED FOR REINSTATEMENT OF THE
BANKRUPTCY CASE AND HIS MOTION WAS GRANTED.  IN THE INTERIM, NO
BANKRUPTCY CAUSE WAS PENDING AND THE STATE COURT HAD JURISDICTION TO
PROCEED AS IT DID. 

WE CANNOT ASSENT TO THE VIEW ADVANCED BY THE RESPONDENT THAT THE
AMENDMENT TO SEC. 75 OF AUGUST 28, 1935, AUTOMATICALLY REINSTATED THE
EARLIER PROCEEDING WHICH HAD BEEN DISMISSED; OR THAT THE MOTION TO
REINSTATE THE PROCEEDING OPERATED BY RELATION TO CLOSE THE GAP OF
TWENTY-NINE DAYS BETWEEN THE DISMISSAL OF THE ORIGINAL BANKRUPTCY CASE,
AND THE STATE COURT'S ACTION IN CONFIRMING THE SALE, AND TO DEPRIVE THE
LATTER OF JURISDICTION TO ACT IN THE INTERIM.  THE AMENDATORY ACT
MERELY AUTHORIZED THE REINSTATEMENT OF PROCEEDINGS WHICH HAD BEEN
DISMISSED.  THE CASE IS ANALOGOUS TO ONE WHEREIN A STATE COURT
FORECLOSURE PROCEEDING HAS BEEN COMPLETED AND DEED DELIVERED TO THE
SHERIFF'S VENDEE PRIOR TO THE FILING OF A PETITION UNDER SEC. 75.  FN10
THE PROVISION FOR THE REINSTATEMENT, UPON THE DEBTOR'S MOTION, OF A
PROCEEDING THERETOFORE DISMISSED AND FINALLY TERMINATED, CANNOT AFFECT
THE JURISDICTION OF THE COURT CONDUCTING THE FORECLOSURE PROCEEDING
WHEN NO BANKRUPTCY CAUSE WAS PENDING. 

WAYNE UNITED GAS CO. V. OWENS-ILLINOIS GLASS CO., 300 U.S. 131,
RELIED UPON BY THE RESPONDENT, IS NOT IN CONFLICT WITH OUR DECISION. 
THERE A PETITION IN BANKRUPTCY FILED UNDER SEC. 77B WAS DISMISSED BY
THE BANKRUPTCY COURT, NOT ON MOTION OF THE BANKRUPT BUT AT THE INSTANCE
OF MORTGAGE CREDITORS AND OVER THE BANKRUPT'S OBJECTION.  IN DUE TIME A
PETITION FOR REHEARING WAS FILED.  WITH NOTICE OF THE FILING OF THIS
PETITION FOR REHEARING, AND THAT IT WOULD BE SET FOR HEARING BEFORE THE
BANKRUPTCY COURT, THE CREDITORS TOOK FURTHER STEPS IN A FORECLOSURE
PROCEEDING PENDING IN A STATE COURT.  THE DISTRICT COURT ENTERTAINED
THE PETITION FOR REHEARING AND AN AMENDED PETITION.  THE CREDITORS WHO
WERE PROSECUTING THE FORECLOSURE PROCEEDING IN THE STATE COURT APPEARED
AND WERE HEARD IN OPPOSITION.  IN ENTERTAINING THE PETITION FOR
REHEARING THE DISTRICT COURT FOUND THAT GOOD CAUSE EXISTED FOR VACATION
OF ITS ORDER OF DISMISSAL AND RECONSIDERATION OF THE CAUSE; THAT THE
APPLICATION FOR REHEARING HAD BEEN SEASONABLY PRESENTED, AND THAT NO
RIGHTS HAD VESTED IN RELIANCE UPON ITS EARLIER ORDER OF DISMISSAL WHICH
WOULD BE DISTURBED BY SETTING ASIDE THE ORDER.  THE PETITION WAS
DISMISSED, THE DEBTOR APPEALED TO THE CIRCUIT COURT OF APPEALS AND WAS
GRANTED A SUPERSEDEAS.  FROM AN ORDER OF THE CIRCUIT COURT OF APPEALS
AFFIRMING THE DISMISSAL OF THE PETITION BY THE DISTRICT COURT THE
DEBTOR SOUGHT CERTIORARI FROM THIS COURT.  THE STATE COURT IN WHICH THE
FORECLOSURE PROCEEDING WAS PENDING HAD FULL NOTICE OF ALL OF THESE
FACTS WHEN IT PROCEEDED TO CONSUMMATE THE FORECLOSURE SALE.  WE HELD
THAT, IN THE CIRCUMSTANCES, NO RIGHTS WERE ACQUIRED UNDER THE STATE
COURT PROCEEDINGS SINCE TERMINATION OF THE BANKRUPTCY CASE DID NOT
OCCUR UNTIL FINAL DISPOSITION OF THE EFFORTS IN THE DISTRICT COURT AND
ON APPEAL TO REVERSE THE DECREE OF DISMISSAL. 

THE DISTRICT COURT WAS RIGHT IN REFUSING TO REFER THE REINSTATED
CAUSE TO A CONCILIATION COMMISSIONER.  SINCE THE FORECLOSURE
PROCEEDINGS HAD BEEN COMPLETED AND TITLE HAD PASSED THEREUNDER PRIOR TO
THE FILING OF THE DEBTOR'S PETITION FOR REINSTATEMENT, IT WOULD HAVE
BEEN A VAIN THING TO REFER THE CAUSE TO A CONCILIATION COMMISSIONER FOR
ADMINISTRATION OF PROPERTY WHICH NO LONGER BELONGED TO THE DEBTOR. 
FN11  WE HAVE NO OCCASION TO PASS UPON THE AUTHORITY OF THE COURT TO
ENTER AN ORDER OF DISCLAIMER.  IT IS SUFFICIENT THAT THE COURT'S ACTION
IN REFUSING TO REFER THE CAUSE TO A CONCILIATION COMMISSIONER WAS
JUSTIFIED.  THAT ORDER WE THINK, SHOULD HAVE BEEN AFFIRMED. 

IT IS SAID THAT, EVEN WHERE TITLE HAS PASSED FROM THE MORTGAGOR IN
FORECLOSURE PROCEEDINGS BEFORE THE FILING OF THE PETITION, THE DEBTOR
SHOULD BE, IF HE SO REQUESTS, ADJUDICATED A BANKRUPT SO THAT A TRUSTEE
MAY, IF SO ADVISED, CHALLENGE THE VALIDITY OF THE SALE.  HERE, HOWEVER,
THERE IS NO SUGGESTION OF ANY INFIRMITY IN THE PETITIONER'S TITLE SAVE
THAT THE SALE WAS MADE IN VIOLATION OF THE PROHIBITIONS OF THE
BANKRUPTCY ACT.  BUT THAT SALE WAS MADE UNDER LEAVE OF THE BANKRUPTCY
COURT AND IT WAS WITHIN THE STATE COURT'S JURISDICTION, WHEN NO
BANKRUPTCY PROCEEDING WAS PENDING, TO CONFIRM THE SALE AND ORDER
DELIVERY OF A DEED.  IF IT ERRED IN THAT RESPECT ITS ACTION WAS SUBJECT
TO CORRECTION BY APPEAL BUT NOT SUBJECT TO ATTACK IN A COLLATERAL
PROCEEDING.  THE FACT IS THAT THE DEBTOR APPEALED FROM THE CONFIRMATION
OF THE SALE TO THE COURT OF APPEALS OF MADISON COUNTY, OHIO, WHICH
AFFIRMED THE DECREE OF THE COMMON PLEAS COURT.  AN ISSUE OF FRAUD
ALLEGED TO HAVE BEEN PRACTICED UPON THE DEBTOR TO OBTAIN HIS WITHDRAWAL
OF HIS ORIGINAL BANKRUPTCY PROCEEDING WAS THERE FINALLY DECIDED AGAINST
HIM. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED. 

FN1  ACT OF MARCH 3, 1933, C. 204, 47 STAT. 1467, 1470. 

FN2  SUBSECTION (S) WAS ADDED TO SEC. 75 BY THE ACT OF JUNE 28, 1934,
C. 869, 48 STAT. 1289. 

FN3  ACT OF AUGUST 28, 1935, C. 792, 49 STAT. 942. 

FN4  BYERLY V. UNION JOINT STOCK LAND BANK, 106 F.2D 576. 

FN5  KALB V. FEUERSTEIN, 308 U.S. 433. 

FN6  BASSETT V. DANIELS, 10 OH. ST. 617, 619; REED V. RADIGAN, 42 OH.
ST. 292, 294. 

FN7  KALB V. FEUERSTEIN, SUPRA. 

FN8  COMPARE JOHN HANCOCK MUTUAL LIFE INSURANCE CO. V. BARTELS, 308
U.S. 180. 

FN9  THOMPSON V. TOLMIE, 2 PET. 157, 163; VOORHEES V. BANK OF UNITED
STATES, 10 PET. 449; FLORENTINE V. BARTON, 2 WALL.  210; COOPER V.
REYNOLDS, 10 WALL.  308; MCNITT V. TURNER, 16 WALL.  352, 366; SIMMONS
V. SAUL, 138 U.S. 439; NOBLE V. UNION RIVER LOGGING R. CO., 147 U.S.
165, 173; INSLEY V. UNITED STATES, 150 U.S. 512. 

FN10  SEE WRIGHT V. UNION CENTRAL LIFE INS. CO., 304 U.S. 502, 508. 

FN11  COMPARE WRIGHT V. UNION CENTRAL LIFE INS. CO., SUPRA. 

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, AND MR. JUSTICE MURPHY,
DISSENTING. 

WE BELIEVE THAT TO DENY THIS FARMER THE BENEFITS OF THE ACT BECAUSE
THE PURCHASE BY THE MORTGAGEE AT THE SHERIFF'S SALE WAS CONFIRMED
DURING THE SHORT INTERVAL BETWEEN THE DISMISSAL OF HIS PETITION AND ITS
REINSTATEMENT, WOULD BE LARGELY TO DEFEAT THE PURPOSES OF THE ACT. 

AFTER THE ORIGINAL SUBSECTION (S) OF THE FRAZIER-LEMKE ACT WAS
DECLARED UNCONSTITUTIONAL BY THE DECISION OF THIS COURT, MAY 27, 1935,
FN1  THIS FARMER'S PETITION WAS DISMISSED, AUGUST 26, 1935.  A SCANT
TWO DAYS AFTER THE DISMISSAL, AUGUST 28, CONGRESS ENACTED THE PRESENT
FRAZIER-LEMKE ACT DESIGNED TO SUPPLY THE CONSTITUTIONAL DEFICIENCY AND
PROVIDING THAT ALL CASES DISMISSED BECAUSE OF THAT DECISION "BE
PROMPTLY REINSTATED."  FN2  AFTER THE FILING OF THE PETITION AND EVEN
BEFORE DISMISSAL, THE BANKRUPTCY COURT ALLOWED THIS FARMER'S PROPERTY
TO BE SOLD BY THE SHERIFF UNDER FORECLOSURE IN THE STATE COURT.  AND IT
IS ADMITTED THAT THE ORDER PURPORTING TO PERMIT THE SALE WAS ERRONEOUS
BECAUSE ENTERED IN DISREGARD OF THE REQUIREMENTS OF SUBSECTION (O). 
FN3  THE OHIO STATE COURT CONFIRMED THE SHERIFF'S SALE, SEPTEMBER 10,
1935, A DATE PRIOR TO THE LAPSE OF THE THIRTY DAY PERIOD WITHIN WHICH
AN APPEAL WOULD LIE FROM AN ORDER OF DISMISSAL.  FN4 

INSTEAD OF APPEALING, THE FARMER, WITHIN THE THIRTY DAY PERIOD,
PRAYED RELIEF FROM THE DISMISSAL DECREE BY REINSTATEMENT IN THE
DISTRICT COURT ITSELF.  IN HIS APPLICATION FOR REINSTATEMENT, HE
ALLEGED THAT DISMISSAL OF HIS PETITION HAD BEEN INDUCED BY THE
DELIBERATE MISREPRESENTATIONS OF THE MORTGAGEE-BANK, THAT HE HAD NO
NOTICE OF THE CONSUMMATION OF THE SHERIFF'S SALE UNTIL SEVERAL DAYS
AFTER IT TOOK PLACE AND THAT HE WISHED TO AVAIL HIMSELF OF SEC. 75 AS
AMENDED AUGUST 28.  UPON THE PRAYER "THAT HIS ...  PROCEEDING  ...  BE
REINSTATED AS OF THE DATE OF ITS  ... DISMISSAL," THE CASE WAS
REINSTATED.  WE DO NOT UNDERSTAND THAT EITHER THE POWER OF THE
BANKRUPTCY COURT TO REINSTATE OR THE REINSTATEMENT WHICH WAS IN FACT
GRANTED, IS QUESTIONED. 

UNTIL DISPOSITION OF THE FARMER'S PETITION, HE WAS ENTITLED TO THE
PROTECTION AND BENEFIT OF THE ACT, AND THE BANKRUPTCY COURT HAD
EXCLUSIVE JURISDICTION OF HIS PROPERTY.  FN5  DISMISSAL OF THE
PROCEEDING DID NOT CONSTITUTE ITS FINAL DISPOSITION WHERE REINSTATEMENT
WAS AVAILABLE.  CERTAINLY, THIS MUST HOLD TRUE AT LEAST FOR THE PERIOD
OF TIME AFTER DISMISSAL DURING WHICH THE FARMER HAD A STATUTORY RIGHT
TO APPEAL FROM THE DISTRICT COURT'S ACTION.  FN6  OTHERWISE, EVEN
APPEAL MIGHT BE WHOLLY UNAVAILING AND FUTILE.  WHEN A COURT OF
BANKRUPTCY REINSTATES A CASE PREVIOUSLY RETIRED FROM THE DOCKET, AS
THIS FARMER'S CASE WAS REINSTATED, THE COURT RECONSIDERS THE CAUSE ON
THE MERITS UPON THE ORIGINAL AS WELL AS ANY SUPPLEMENTAL PETITIONS
UNLESS RIGHTS HAVE "INTERVENED WHICH WOULD RENDER IT INEQUITABLE TO
RECONSIDER THE MERITS."  WAYNE GAS CO. V. OWENS CO., 300 U.S. 131, 137,
138.  WE FIND NO INTERVENING EQUITIES HERE. 

IN THE WAYNE CASE, A CORPORATE REORGANIZATION IN 77B WAS DISMISSED
AND SUBSEQUENT TO THE DISMISSAL A STATE COURT CONFIRMED A FORECLOSURE
SALE OF THE DEBTOR'S PROPERTY WHICH HAD BEEN DECREED PRIOR TO THE
FILING OF THE 77B PROCEEDING.  AFTER THE CIRCUIT COURT OF APPEALS HAD
DENIED THE DEBTOR'S PETITION FOR ALLOWANCE OF AN APPEAL AND THE TIME
FOR APPEAL AS OF RIGHT HAD EXPIRED, THE BANKRUPTCY COURT REINSTATED THE
PROCEEDING AND REHEARD THE CASE UPON THE MERITS.  THE PLAN OF
REORGANIZATION WAS AGAIN FOUND WANTING AND THE COURT ENTERED A SECOND
ORDER OF DISMISSAL.  THE DEBTOR'S APPEAL FROM THE SECOND DISMISSAL WAS
IN TURN DISMISSED BY THE CIRCUIT COURT OF APPEALS ON THE GROUND THAT
LACK OF POWER IN THE DISTRICT COURT IN BANKRUPTCY RENDERED THE ORDER OF
REINSTATEMENT - AS WELL AS THE SECOND ORDER OF DISMISSAL - VOID.  FN7 

WHEN THE CASE REACHED HERE, ARGUMENTS PRESENTED BY THE FORECLOSURE
PURCHASER WERE IN SUBSTANCE THOSE UPON WHICH WE ARE NOW ASKED TO
REVERSE THE COURT BELOW - THAT THE FIRST ORDER OF DISMISSAL HAD
TERMINATED THE CAUSE (SO THAT AN APPEAL NOT TAKEN WITHIN THIRTY DAYS OF
ITS ENTRY WAS NOT TIMELY); AND THAT THE STATE COURT'S CONFIRMATION OF
SALE, AFTER DISMISSAL, HAD FINALLY DIVESTED THE BANKRUPT OF ALL TITLE
TO ITS FORECLOSED PROPERTY LEAVING NO PROPERTY FOR ADMINISTRATION BY
THE BANKRUPTCY COURT (AND THE CONTROVERSY WAS THEREFORE MOOT). 

THIS COURT DENIED THESE CONTENTIONS, AND HELD THAT THE DISMISSAL HAD
NOT TERMINATED THE PROCEEDING; THAT THE CONTROVERSY WAS NOT MOOT AND
THAT THE DISTRICT COURT HAD PROPERLY FOUND THAT NO INTERVENING RIGHTS
HAD ACCRUED TO DIVEST THE DEBTOR OF ITS PROPERTY FORECLOSED SUBSEQUENT
TO THE DISMISSAL IN THE BANKRUPTCY COURT; THAT THE REHEARING HAD BEEN
SOUGHT IN GOOD FAITH AND WITH DUE DILIGENCE AND THAT THE CIRCUIT COURT
OF APPEALS HAD ERRED IN NOT PASSING UPON THE MERITS OF A PLAN OF
REORGANIZATION WHICH INCLUDED THE PROPERTY SOLD UNDER THE STATE COURT'S
ORDER.  THE DECISION HERE THUS APPROVED THE EXERCISE OF THE BANKRUPTCY
COURT'S JURISDICTION OVER THE ENCUMBERED PROPERTY OF THE DEBTOR WHICH,
AFTER DISMISSAL, HAD BEEN BOUGHT IN THE STATE COURT FORECLOSURE BY
CREDITORS WHO WERE PARTIES TO THE 77B PROCEEDINGS AND WHO "WENT FORWARD
WITH THE PROCEEDINGS IN THE STATE COURT, LOOKING TO A SALE OF THE
DEBTOR'S PROPERTY, WITH FULL KNOWLEDGE THAT A REHEARING MIGHT BE
GRANTED  ...  "  ID., 135. 

ACCORDINGLY, THE CASE WAS NOT REMANDED TO THE DISTRICT COURT FOR
RECONSIDERATION OF ITS FINDING THAT NO RIGHTS COGNIZABLE IN EQUITY HAD
INTERVENED AS A RESULT OF THE STATE COURT FORECLOSURE.  INSTEAD, THE
REMAND WENT TO THE COURT OF APPEALS FOR FURTHER PROCEEDINGS.  AND THAT
COURT PROPERLY CONSTRUED THE MANDATE TO REQUIRE CONSIDERATION OF THE
MERITS OF THE DEBTOR'S PLAN WHICH ASSUMED OWNERSHIP IN THE DEBTOR OF
THE PARTICULAR PROPERTY UPON WHICH FORECLOSURE HAD BEEN ATTEMPTED. 
FN8 

SO HERE, AS IN THE WAYNE CASE, STATE COURT PROCEEDINGS SUBSEQUENT TO
DISMISSAL, BUT WHILE FURTHER PROCEEDINGS COULD BE HAD IN BANKRUPTCY,
DID NOT DIVEST THE DEBTOR OF HIS PROPERTY; THERE "WAS NO ABUSE OF SOUND
DISCRETION IN GRANTING THE MOTION (FOR REINSTATEMENT) AND RECONSIDERING
THE CAUSE"; THE DISTRICT COURT IN BANKRUPTCY HAD "THE POWER, FOR GOOD
REASON, TO REVISE ITS JUDGMENTS (OF DISMISSAL AND TO REINSTATE) UPON
SEASONABLE APPLICATION AND BEFORE RIGHTS  ...  (HAD) VESTED ON THE
FAITH OF ITS ACTION."  ID., 137, 138.  AND ITS GENERAL POWER TO DO SO,
AT LEAST DURING THE PERIOD ALLOWED FOR TAKING AN APPEAL,  FN9  WAS
REINFORCED BY RECOGNITION OF THE SPECIFIC STATUTORY RIGHT OF
REINSTATEMENT IN THE AMENDED 75(S), WHICH SPRANG INTO BEING ONLY TWO
DAYS AFTER DISMISSAL OF THIS FARMER'S PETITION.  PARALLELING THE
SITUATION PRESENTED BY THE WAYNE CASE, NOT ONLY WAS THE MORTGAGEE
PURCHASER HERE A PARTY TO THE 75 PROCEEDING, BUT THE STATE COURT ITSELF
MAY BE SAID TO HAVE ACTED WITH KNOWLEDGE THAT THE DISMISSAL - OF WHICH
IT WAS NOTIFIED - DID NOT NECESSARILY REPRESENT THE LAST STEP IN THE
FEDERAL COURT PROCEEDING.  CF. ID., 135. 

HERE, THE ONLY ASSERTED RIGHTS WHICH INTERVENED AGAINST THIS FARMER
DEBTOR WERE NOT THOSE OF A BONA FIDE PURCHASER.  THE PURCHASER WAS THE
MORTGAGEE WHO WAS A PARTY TO THE SEC. 75 PROCEEDING AND WHO RELIED - AT
LEAST IN PART - ON AN ORDER OF THE BANKRUPTCY COURT ADMITTEDLY
ERRONEOUS BECAUSE CONTRARY TO THE FRAZIER-LEMKE ACT, AND RENDERED AT
THE MORTGAGEE'S INSTIGATION.  THEREFORE, THE MORTGAGEE-PURCHASER IS NOT
ENTITLED TO RELY UPON THE STATUS ACQUIRED BY IT IN THE STATE COURT
AFTER DISMISSAL "AS PRECLUDING FURTHER CONSIDERATION OF THE PETITION"
FOR COMPOSITION.  CF. ID., 135.  TO DECIDE OTHERWISE THAN THAT THE
DISMISSAL HERE DID NOT DEPRIVE THE FARMER-DEBTOR OF THE RIGHT TO
PROCEED - BEFORE RIGHTS HAVE VESTED - BY REINSTATEMENT TO OBTAIN THE
BENEFITS OF THE ACT, IS TO PERMIT DISMISSAL AT THE INSTANCE OF THE
FARMER'S CREDITORS AND WITHOUT THE FARMER'S KNOWLEDGE TO PROVE A READY
MEANS OF CIRCUMVENTING THE ACT.  FN10  TITLE TO A FARMER'S PROPERTY
ACQUIRED IN THE MANNER PURSUED BY PETITIONER CANNOT LIMIT THE POWER OF
THE BANKRUPTCY COURT TO AFFORD THE PROTECTION OF AND TO ENFORCE THIS
REMEDIAL LEGISLATION. 

FN1  LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555. 

FN2  SEC. 75(S)(5). 

FN3  AS WE VIEW THE EFFECT OF REINSTATEMENT, IT IS UNNECESSARY TO
DETERMINE WHETHER THE BANKRUPTCY COURT'S ORDER WAS NOT MERELY
ERRONEOUS, BUT VOID. 

FN4  11 U.S.C. 47, 48. 

FN5  KALB V. FEUERSTEIN, 308 U.S. 433. 

FN6  "AN APPEAL IS A PROCEEDING IN THE ORIGINAL CAUSE AND THE SUIT IS
PENDING UNTIL THE APPEAL IS DISPOSED OF.  ...  WHEN THE FINAL JUDGMENT
WAS REACHED IT DETERMINED THE RIGHTS OF  ...  (THE PARTIES) AB INITIO,
...  "  MACKENZIE V. ENGELHARD CO., 266 U.S. 131, 142-143.  "WHERE A
DECREE HAS NOT BEEN ENROLLED, OR WHERE IT IS SUBJECT TO MODIFICATION
UPON MOTION, OR WHERE THE COURT MIGHT GRANT A REHEARING, OR WHERE AN
APPEAL MIGHT BE TAKEN, OR WHERE THE COSTS HAD NOT BEEN TAXED, OR WHERE
NO EXECUTION HAD ISSUED - IT NOT BEING IN CONDITION TO ISSUE EXECUTION
THE CASE COULD NOT BE SAID TO HAVE REACHED THAT STAGE WHERE IT COULD
BE SAID IT WAS NOT PENDING IN THAT COURT."  BRANNON V. KENTUCKY, 162
KY. 350, 357-8; 172 S.W. 703, 706.  CF. STATE V. TUGWELL, 19 WASH. 238;
52 P. 1056; 43 L.R.A. 717; BLOOM V. PEOPLE, 23 COLO. 416; 48 P. 519;
STATE EX REL. ANDREU V. CANFIELD, 40 FLA. 36, 44; 23 SO. 591; BROWN V.
CAMPBELL, 100 CAL. 635, 646; 35 P. 433; EX PARTE HOWLAND, 3 OKLA. CRIM.
142; 104 P. 927; ANN. CAS. 1912A, 840. 

FN7  84 F.2D 965. 

FN8  WAYNE GAS CO. V. OWENS-ILLINOIS GLASS CO., 91 F.2D 827. 

FN9  SEE NOTE 6, SUPRA. 

FN10  CF. IN RE PRICE, 99 F.2D 691, 694. 
..END :







U.S. V. SAN FRANCISCO, 310 U.S. 16 


NO. 587.  ARGUED MARCH 28, 1940.  - DECIDED APRIL 22, 1940.  - 106 F.2D
569, REVERSED. 


1.  UNDER THE RAKER ACT OF DECEMBER 19, 1913, WHICH GRANTED TO THE
CITY AND COUNTY OF SAN FRANCISCO CERTAIN LANDS AND RIGHTS OF WAY IN THE
HETCH-HETCHY VALLEY FOR USE BY THE CITY IN CONSTRUCTING AND MAINTAINING
A MEANS OF SUPPLYING WATER FOR THE DOMESTIC PURPOSES OF THE CITY AND
OTHER PUBLIC BODIES, AND IN ESTABLISHING A SYSTEM FOR GENERATION AND
SALE AND DISTRIBUTION OF ELECTRIC ENERGY, HELD: 

THAT SEC. 6 PROHIBITS THE CITY FROM TRANSFERRING TO A PUBLIC UTILITY
THE RIGHT TO SELL ELECTRIC POWER PRODUCED BY THE CITY UNDER THE GRANT,
IN ADDITION TO FORBIDDING SALE OF THE POWER ITSELF AS A COMMODITY FOR
RESALE.  P. 20. 

CONGRESS CLEARLY INTENDED TO REQUIRE - AS A CONDITION OF ITS GRANT -
SALE AND DISTRIBUTION OF POWER EXCLUSIVELY BY SAN FRANCISCO AND OTHER
MUNICIPAL AGENCIES DIRECTLY TO CONSUMERS IN THE BELIEF THAT CONSUMERS
WOULD THUS BE AFFORDED POWER AT CHEAP RATES IN COMPETITION WITH PRIVATE
POWER COMPANIES.  P. 26. 

2.  THE CITY, INSTEAD OF SELLING THE POWER PRODUCED UNDER THE GRANT
DIRECTLY TO CONSUMERS AT PRICES FIXED BY ITSELF, DELIVERED IT UNDER A
CONTRACT, FOR A FIXED COMPENSATION, TO A PUBLIC UTILITY CORPORATION,
WHICH, IN TURN, SOLD IT TO CONSUMERS IN THE CITY AND ELSEWHERE, ALONG
WITH POWER PRODUCED BY ITSELF, AT THE RATES FIXED FROM TIME TO TIME BY
THE STATE RAILROAD COMMISSION.  HELD THAT THE CONTRACT IS IN VIOLATION
OF THE ACT, AND CAN NOT BE DEFENDED UPON THE GROUND THAT THE CITY HAS A
RIGHT TO SELL THROUGH THE CORPORATION AS ITS AGENT.  P. 28. 

3.  THE PROHIBITIONS OF SEC. 6 ARE NOT AN UNCONSTITUTIONAL INVASION
OF THE RIGHT OF THE STATE OF CALIFORNIA TO REGULATE DISTRIBUTION OF
ELECTRICITY, AND ARE NOT MERE COVENANTS SUBJECT TO ALLEGED EQUITABLE
DEFENSES, BUT ARE CONDITIONS WHICH CONGRESS, IN VIRTUE OF ITS POWER
OVER THE PUBLIC DOMAIN, WAS AUTHORIZED TO ATTACH TO THE GRANT.  P. 28. 

4.  IN DISPOSING OF RIGHTS TO DEVELOP HYDROELECTRIC POWER IN THE
PUBLIC LANDS, CONGRESS MAY IMPOSE LIMITATIONS DESIGNED TO AVOID
MONOPOLY AND TO BRING ABOUT A WIDE-SPREAD DISTRIBUTION OF BENEFITS.  P.
30. 

5.  A SUIT BROUGHT BY THE ATTORNEY GENERAL IN THE NAME OF THE UNITED
STATES PURSUANT TO THE MANDATE OF THE GRANTING ACT, TO ENFORCE ITS
PROVISIONS BY AN INJUNCTION IS COGNIZABLE IN EQUITY.  P. 30. 

6.  IN SUCH A SUIT, THE DUTY OF THE COURT TO ENJOIN PLAIN VIOLATIONS
OF THE ACT IS NOT MEASURED BY A BALANCING OF EQUITIES BUT BY THE POLICY
OF THE STATUTE.  P. 31. 

7.  A FORMER ERRONEOUS ADMINISTRATIVE CONSTRUCTION OF SEC. 6 OF THE
ACT (SINCE ABANDONED) AS FORBIDDING NO MORE THAN SALE OF POWER FOR
RESALE, HELD INEFFECTUAL.  P. 31. 

8.  THE UNITED STATES IS NOT ESTOPPED BY ACTS OF ITS OFFICERS IN
SANCTIONING AN AGREEMENT NOT PERMITTED BY LAW.  P. 32. 

UNITED STATES V. CITY AND COUNTY OF SAN FRANCISCO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 309 U.S. 642, TO REVIEW THE REVERSAL OF A DECREE OF
INJUNCTION COMMANDING THE CITY AND COUNTY OF SAN FRANCISCO TO CEASE
DISPOSING OF ITS ELECTRIC POWER TO A PUBLIC UTILITY CORPORATION, OR IN
THE ALTERNATIVE, TO CEASE FURTHER USE OF LANDS AND RIGHTS GRANTED TO IT
BY AN ACT OF CONGRESS, FOR GENERATION AND TRANSMISSION OF ELECTRICITY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

BY THE RAKER ACT OF DECEMBER 19, 1913,  FN1  CONGRESS GRANTED THE
CITY AND COUNTY OF SAN FRANCISCO,  FN2  SUBJECT TO EXPRESS CONDITIONS,
CERTAIN LANDS AND RIGHTS-OF-WAY IN THE PUBLIC DOMAIN IN YOSEMITE
NATIONAL PARK AND STANISLAUS NATIONAL FOREST.  THE ACT IN TERMS
DECLARED THAT THIS, KNOWN AS THE "HETCH-HETCHY" GRANT, WAS INTENDED FOR
USE BY THE CITY BOTH IN CONSTRUCTING AND MAINTAINING A MEANS OF
SUPPLYING WATER FOR THE DOMESTIC PURPOSES OF THE CITY AND OTHER PUBLIC
BODIES, AND IN ESTABLISHING A SYSTEM "FOR GENERATION AND SALE AND
DISTRIBUTION OF ELECTRIC ENERGY." 

UPON APPLICATION OF THE SECRETARY OF THE INTERIOR, THE UNITED STATES
BROUGHT THIS SUIT  FN3  IN EQUITY CHARGING THE CITY WITH DISPOSING OF
POWER THROUGH THE PACIFIC GAS & ELECTRIC COMPANY, A PRIVATE UTILITY, IN
VIOLATION OF SEC. 6 OF THE GRANTING ACT.  SECTION 6 PROVIDES "THAT THE
GRANTEE (THE CITY) IS PROHIBITED FROM EVER SELLING OR LETTING TO ANY
CORPORATION OR INDIVIDUAL, EXCEPT A MUNICIPALITY OR A MUNICIPAL WATER
DISTRICT OR IRRIGATION DISTRICT, THE RIGHT TO SELL OR SUBLET THE WATER
OR THE ELECTRIC ENERGY SOLD OR GIVEN TO IT OR HIM BY THE GRANTEE:
PROVIDED, THAT THE RIGHTS HEREBY GRANTED SHALL NOT BE SOLD, ASSIGNED,
OR TRANSFERRED TO ANY PRIVATE PERSON, CORPORATION, OR ASSOCIATION, AND
IN CASE OF ANY ATTEMPT TO SO SELL, ASSIGN, TRANSFER, OR CONVEY, THIS
GRANT SHALL REVERT TO THE GOVERNMENT OF THE UNITED STATES." 

THE DISTRICT COURT CONCLUDED THAT THE CITY WAS VIOLATING SEC. 6 BY
THE SALE AND DISTRIBUTION OF HETCH-HETCHY POWER THROUGH THE PACIFIC GAS
& ELECTRIC COMPANY, A PRIVATE UTILITY.  ACCORDINGLY, THE CITY WAS
REQUIRED BY INJUNCTION ALTERNATIVELY TO DISCONTINUE SUCH DISPOSAL OF
THE POWER OR CEASE FURTHER USE OF THE LANDS AND RIGHTS GRANTED IT UNDER
THE ACT FOR GENERATION AND TRANSMISSION OF ELECTRIC ENERGY.  FN4  THE
CIRCUIT COURT OF APPEALS REVERSED,  FN5  FINDING THAT THE PRIVATE
UTILITY WAS MERELY ACTING AS THE CITY'S AGENT IN THE SALE AND
DISTRIBUTION OF HETCH-HETCHY POWER AND HOLDING THAT SEC. 6 DOES NOT
PROHIBIT SUCH SALE AND DISTRIBUTION OF THAT POWER BY A PRIVATE
UTILITY. 

HERE, AS IN THE COURTS BELOW, THE CITY HAS DEFENDED THE SALE AND
DISTRIBUTION BY PACIFIC GAS & ELECTRIC COMPANY OF POWER ORIGINATING AT
HETCH-HETCHY UPON THE GROUNDS THAT SUCH DISPOSITION DOES NOT VIOLATE
THE PROHIBITIONS OF SEC. 6; THAT IMPOSITION OF THESE PROHIBITIONS WAS
NOT WITHIN THE CONSTITUTIONAL AUTHORITY OF CONGRESS; AND THAT IF SEC. 6
IS VALID AND HAS BEEN VIOLATED, THE UNITED STATES IS NOT ENTITLED TO
INJUNCTIVE RELIEF IN EQUITY. 

FIRST.  PROHIBITIONS OF SECTION 6.  - IN THE CITY'S VIEW, SEC. 6 DOES
NOT PRECLUDE PRIVATE UTILITIES FROM ALL PARTICIPATION IN THE ULTIMATE
SALE AND DISTRIBUTION OF HETCH-HETCHY POWER.  THE CITY INSISTS THAT THE
HETCH-HETCHY POWER TO A PRIVATE UTILITY FOR RESALE TO CONSUMERS AND
THEREFORE PERMITS CONSIGNMENT OF THE POWER TO THE COMPANY, AS AGENT OF
THE CITY, FOR SALE AND DISTRIBUTION.  ON THE CONTRARY, THE GOVERNMENT'S
POSITION RESTS UPON THE CLAIM THAT PACIFIC GAS & ELECTRIC COMPANY IS
NOT IN REALITY SELLING AND DISTRIBUTING HETCH-HETCHY POWER AS CONSIGNEE
AND AGENT BUT AS PURCHASER FOR RESALE; THAT THE GRANT TO THE CITY WAS
MADE UPON THE MANDATORY CONDITION THAT THIS POWER BE SOLD SOLELY AND
EXCLUSIVELY BY THE CITY DIRECTLY TO CONSUMERS AND WITHOUT PRIVATE
PROFIT IN ORDER TO BRING IT INTO DIRECT COMPETITION WITH ADJACENT
PRIVATELY OWNED UTILITIES; AND THAT SEC. 6 NOT ONLY WITHHOLDS THE RIGHT
OF SELLING FOR RESALE BUT ALSO PROHIBITS THE CITY "FROM EVER SELLING OR
LETTING" TO ANY PRIVATE CORPORATION "THE RIGHT TO SELL OR SUBLET THE
...  ELECTRIC ENERGY SOLD OR GIVEN TO IT  ...  " BY THE CITY.  THE
LANGUAGE OF THE ACT, ITS BACKGROUND AND ITS HISTORY REQUIRE THE
CONSTRUCTION GIVEN SEC. 6 BY THE GOVERNMENT. 

FROM ITS PROVISIONS,  FN6 IT IS APPARENT THAT THE ACT CONDITIONS THE
GRANT UPON AND CONTEMPLATES THE DEVELOPMENT, SALE AND DISTRIBUTION OF
ELECTRICAL POWER BY THE CITY ITSELF "FOR MUNICIPAL AND COMMERCIAL USE"
ON A SCALE TO BE GRADUALLY STEPPED UP OVER A PERIOD OF YEARS.  "THE ...
GRANTEE SHALL DEVELOP AND USE HYDROELECTRIC POWER FOR THE USE OF ITS
PEOPLE AND SHALL  ... SELL OR SUPPLY SUCH POWER FOR IRRIGATION,
PUMPING, OR OTHER BENEFICIAL USE."  THE "RIGHT TO SELL OR SUBLET THE
...  ELECTRIC ENERGY" SO GENERATED BY THE CITY CANNOT, AS A CONSEQUENCE
OF SEC. 6, BE SOLD OR LET.  AND IN CASE OF ANY ATTEMPT TO "SELL,
ASSIGN, TRANSFER, OR CONVEY (THE RIGHTS GRANTED), THIS GRANT SHALL
REVERT TO THE GOVERNMENT OF THE UNITED STATES." 

FROM THE STATEMENT OF THE CONGRESSMAN RESPONSIBLE FOR THE APPLICATION
OF THE PROHIBITIONS OF SEC. 6 SPECIFICALLY TO ELECTRIC ENERGY,  FN7  IT
IS CLEAR THAT AS ENACTED SEC. 6 WAS UNDERSTOOD TO PROHIBIT THE CITY
FROM TRANSFERRING TO A PRIVATE UTILITY THE RIGHT TO SELL HETCH-HETCHY
POWER (THE GOVERNMENT'S CONTENTION) AND NOT MERELY TO FORBID SALE OF
POWER AS A COMMODITY FOR RESALE, AS THE CITY WOULD HAVE US HOLD: 

"MR. TAYLOR OF COLORADO.  WE HAVE GOT TO LET THE MUNICIPALITY SELL TO
INDIVIDUALS OR CONSUMERS. 

"MR. THOMSON OF ILLINOIS.  YES; BUT NOT THE RIGHT TO SELL SOME ONE
ELSE THE POWER. 

"MR. TAYLOR OF COLORADO.  SUPPOSING THAT SAN FRANCISCO SELLS A
CERTAIN BLOCK, YOU MAY SAY, OF ITS POWER TO ALAMEDA.  HAS NOT ALAMEDA
GOT THE RIGHT TO RESELL THAT TO ITS INHABITANTS? 

"MR. THOMSON OF ILLINOIS.  MR. CHAIRMAN, IN ANSWERING THE QUESTION OF
THE GENTLEMAN FROM COLORADO, I WOULD LIKE TO CALL HIS ATTENTION TO THE
FACT THAT THE SUBJECT OF SALE AS PRINTED IN THIS SECTION IS NOT THE
POWER OR THE WATER, BUT THE RIGHT TO SELL THE POWER OR THE WATER. 

"  ... 

"MR. RAKER.  THAT (THE WORD "INDIVIDUAL") REALLY IS INTENDED TO COVER
ANY PERSON WHO MIGHT ATTEMPT TO BUY THIS ELECTRIC POWER OR RIGHT.  I
THINK IT WOULD COVER EVERYBODY OUTSIDE OF A CORPORATION, THE INTENTION
BEING TO PREVENT ANYBODY GETTING IN AND GETTING A RIGHT AND SUB-LETTING
IT."  FN8 

IN ITS REPORT ON THE BILL, THE HOUSE COMMITTEE ON PUBLIC LANDS STATED
THAT THE PROVISION OF SEC. 6 "ACQUIESCED IN BY THE GRANTEE, WAS
DESIGNED TO PREVENT ANY MONOPLY OR PRIVATE CORPORATION FROM HEREAFTER
OBTAINING CONTROL OF THE WATER SUPPLY OF SAN FRANCISCO."  FN9 

FROM THE CONGRESSIONAL DEBATES ON THE PASSAGE OF THE RAKER ACT CAN BE
READ A COMMON UNDERSTANDING BOTH ON THE PART OF SPONSORS OF THE BILL
AND ITS OPPONENTS THAT THE GRANT WAS TO BE SO CONDITIONED AS TO REQUIRE
MUNICIPAL PERFORMANCE OF THE FUNCTION OF SUPPLYING HETCH-HETCHY WATER
AND ELECTRIC POWER DIRECTLY TO THE ULTIMATE CONSUMERS, AND TO PROHIBIT
SALE OR DISTRIBUTION OF THAT POWER AND WATER BY ANY PRIVATE CORPORATION
OR INDIVIDUAL.  FN10  ON THE FLOOR OF THE HOUSE, THE FOLLOWING TOOK
PLACE BETWEEN THE BILL'S AUTHOR AND OTHER REPRESENTATIVES: 

"MR. SUMNERS.  DOES SAN FRANCISCO OWN ITS OWN LIGHTING PLANT NOW? 

"MR. KAHN.  NO; IT DOES NOT. 

"MR. RAKER.  I UNDERSTAND IT DOES NOT. 

"MR. KAHN.  IT DOES NOT OWN ITS OWN WATER SUPPLY. 

ITS PRESENT WATER SUPPLY IS FURNISHED BY A PRIVATE COMPANY. 

"MR. RAKER.  THE SPRING VALLEY WATER SYSTEM. 

"MR. SUMNERS.  IS IT THE PURPOSE OF THIS BILL TO HAVE SAN FRANCISCO
SUPPLY ELECTRIC POWER AND WATER TO ITS OWN PEOPLE? 

"MR. RAKER.  YES. 

"MR. SUMNERS.  OR TO SUPPLY THESE CORPORATIONS, WHICH WILL IN TURN
SUPPLY THE PEOPLE? 

"MR. RAKER.  UNDER THIS BILL IT IS TO SUPPLY ITS OWN INHABITANTS
FIRST.  ...  "  FN11 

THESE VIEWS WERE IN ACCORD WITH THE RECOMMENDATION OF THE THEN
SECRETARY OF THE INTERIOR, AS SET OUT IN THE REPORT OF THE PUBLIC LANDS
COMMITTEE OF THE HOUSE: 

"I THINK THAT IT IS VERY PROPER THAT THE FEDERAL GOVERNMENT SHOULD
USE WHATEVER POWER IT HAS OVER THE PUBLIC LANDS, OVER THE PARKS, AND
OVER THE FORESTS, TO COMPEL THE FULLEST USE OF THESE WATERS, AND
INDIRECTLY TO REQUIRE THROUGH ITS POWER TO MAKE CONDITIONS, THE LOWEST
POSSIBLE RATE FOR CONSUMERS."  FN12 

THE THEME - OF AN INTENT TO REQUIRE PUBLIC UTILIZATION OF HETCH
HETCHY POWER INDEPDENDENTLY OF PRIVATE UTILITIES - RECURRED AT A LATER
STAGE OF THE DEBATE IN THE HOUSE: 

"MR. GRAY.  ... 

"AS I UNDERSTAND THE BILL, IT PROVIDES FOR THE FURNISHING OF WATER,
AND ALSO FOR POWER FOR COMMERCIAL USE.  ... 

"  ...  IF THESE WORKS HERE ARE TO BE CONTRUCTED TO SERVE THE
BASENESS OF COMMERCIALISM, IT IS THE VILEST OF ALL VANDALISM.  MY
SUGGESTION HERE TO YOU IS TO STRIKE OUT OF THIS BILL ALL THE COMMERCIAL
PROFIT.  ... 

"MR. KENT (A MEMBER OF THE CALIFORNIA DELEGATION AND A SUPPORTER OF
THE MEASURE).  MR. CHAIRMAN, I SHOULD LIKE TO SUGGEST TO THE GENTLEMAN
FROM INDIANA (MR. GRAY) THAT THIS BILL IS STRICTLY DRAWN IN THE PUBLIC
INTEREST, THAT THERE IS NO POSSIBILITY OF SELFISH GAIN, AND THAT NO
CORPORATION OR INDIVIDUAL CAN OBTAIN ANY BENEFIT WHATSOEVER FROM THIS
BILL.  IT IS FOR THE BENEFIT OF THE PEOPLE OF CALIFORNIA."  FN13 

IN THE SENATE, SENATOR THOMAS, A MEMBER OF THE COMMITTEE REPORTING
THE BILL, SAID: 

"  ...  SAN FRANCISCO NEEDS ELECTRIC POWER, AND CALIFORNIA NEEDS
DEVELOPMENT IN ELECTRIC POWER JUST AS MUCH AS SHE NEEDS OWNERSHIP IN
WATER,  ... 

"  ...  SHE IS ANXIOUS TO EXTEND HER SPHERES OF MUNICIPAL USEFULNESS,
BUT SHE IS IN THE GRIP OF A POWER MONOPOLY AS WELL AS THAT OF THE
SPRING VALLEY CO. 

"  ...  THIS SCHEME APPEALS TO ME, MR. PRESIDENT, SO FAR AS THE POWER
IS CONCERNED, BECAUSE THE CITY OF SAN FRANCISCO AS A MUNICIPALITY WILL
BE THE OWNER OF IT, THE MANUFACTURER, THE DISTRIBUTOR OF IT."  FN14 

AND THE WORDS OF SENATOR NORRIS, ALSO A MEMBER OF THE REPORTING
COMMITTEE AND A LEADING SPONSOR OF THE BILL, ON THE DAY OF ITS FINAL
PASSAGE THROUGH THE SENATE, ILLUMINATE JUST WHAT THE RAKER ACT WAS
INTENDED TO ACCOMPLISH: 

"  ...  I SAID THAT I WAS IN FAVOR OF THIS BILL TO A GREAT EXTENT FOR
THE REASON THAT IT DEVELOPED THIS POWER.  THIS POWER WILL COME INTO
COMPETITION WITH THE VARIOUS WATERPOWER COMPANIES OF CALIFORNIA, AND
THERE ARE LOTS OF THEM THERE. 

"  ...  THIS PROPOSITION IS TO HARNESS THAT POWER AND TO PUT IT TO
PUBLIC USE NOT TO GIVE IT TO A PRIVATE CORPORATION.  ... 

"HERE IS AN INSTANCE WHERE WE ARE GOING TO GIVE IT DIRECTLY TO THE
PEOPLE, IF WE PASS THIS BILL.  IT IS GOING TO COME INTO COMPETITION
WITH POWER COMPANIES AND CORPORATIONS THAT HAVE, OR WILL HAVE, IF THIS
BILL IS DEFEATED, ALMOST A MONOPOLY NOT ONLY IN SAN FRANCISCO BUT
THROUGHOUT THE GREATER PORTION OF CALIFORNIA. 

"  ... 

"THESE MAKE IN ALL, AS I HAVE COUNTED THEM, 18 CORPORATIONS
CONTROLLING THE POWER IN THE VICINITY OF SAN FRANCISCO THAT ARE UNDER
THE CONTROL OF THIS ONE CORPORATION.  (PACIFIC GAS & ELECTRIC
COMPANY.) 

"  ...  WHEN YOU SUM THEM ALL UP YOU WILL FIND THAT THEY OWN
PRACTICALLY ALL OF THE HYDROELECTRIC POWER OF THE STATE OF CALIFORNIA,
AND THIS BILL, IF PASSED, WILL BRING INTO COMPETITION WITH THEM ONE OF
THE GREATEST UNITS FOR THE DEVELOPMENT OF POWER THAT HAS EVER BEEN
DEVELOPED IN THE HISTORY OF THE WORLD.  IT MEANS COMPETITION. 

"  ...  CONSERVATION DOES NOT MEAN DEALING OUT THESE RESOURCES TO
PRIVATE CAPITAL FOR GAIN.  IT IS NOT NECESSARY TO ACCUSE THOSE
CORPORATIONS OF DOING ANY WRONG; BUT HERE WILL BE AN INSTANCE WHERE THE
CHEAPEST POWER ON EARTH WILL BE DEVELOPED AND WHERE IT WILL BE SOLD AT
COST."  FN15 

OPPONENTS OF THE BILL THEMSELVES RECOGNIZED THAT ITS REGULATORY
CONDITIONS WERE DESIGNED TO INSURE DISTRIBUTION OF POWER FROM HETCH
HETCHY THROUGH A MUNICIPAL SYSTEM IN SAN FRANCISCO.  BEFORE FINAL
PASSAGE IN THE SENATE, OPPOSITION HAD PRACTICALLY NARROWED DOWN TO THE
POWER PROVISIONS OF THE MEASURE,  FN16  AND THESE PROVISIONS
CONTEMPLATED A PUBLICLY OWNED AND OPERATED POWER SYSTEM.  FN17
IMMEDIATELY BEFORE THE VOTE IN THE SENATE, SENATOR MCCUMBER, OPPOSED TO
THE POWER PROVISIONS OF SEC. 6, OFFERED A SWEEPING AMENDMENT WHICH
WOULD HAVE OMITTED THAT SECTION AND ALL OTHER PROVISIONS RELATING TO
THE GENERATION, SALE AND DISTRIBUTION OF HETCH-HETCHY POWER.  FN18  BUT
HIS AMENDMENT WAS DEFEATED.  FN19  AND DESPITE THIS ARTICULATE
OPPOSITION TO THE POLICY EMBODIED IN ITS POWER FEATURES, THE ACT WAS
PASSED. 

TO LIMIT THE PROHIBITIONS OF SEC. 6 OF THE ACT NARROWLY TO SALES OF
POWER FOR RESALE WITHOUT MORE, AS THE CITY ASKS, WOULD PERMIT EVASION
AND FRUSTRATION OF THE PURPOSE OF THE LAWMAKERS.  CONGRESS CLEARLY
INTENDED TO REQUIRE - AS A CONDITION OF ITS GRANT - SALE AND
DISTRIBUTION OF HETCH-HETCHY POWER EXCLUSIVELY BY SAN FRANCISCO AND
MUNICIPAL AGENCIES DIRECTLY TO CONSUMERS IN THE BELIEF THAT CONSUMERS
WOULD THUS BE AFFORDED POWER AT CHEAP RATES IN COMPETITION WITH PRIVATE
POWER COMPANIES, PARTICULARLY PACIFIC GAS & ELECTRIC COMPANY.  IT IS
NOT THE OFFICE OF THE COURTS TO PASS UPON THE JUSTIFICATION FOR THAT
BELIEF OR THE EFFICACY OF THE MEASURES CHOSEN FOR PUTTING IT INTO
EFFECT.  SELECTION OF THE EMPHATICALLY EXPRESSED PURPOSE EMBODIED IN
THIS ACT WAS THE APPROPRIATE BUSINESS OF THE LEGISLATIVE BODY.    THE
ADMITTED FACTS SHOWN BY THIS RECORD REQUIRED THE DISTRICT COURT TO FIND
- AS IT DID - THAT THE CITY WAS VIOLATING SEC. 6 IN PERMITTING SALE AND
DISTRIBUTION OF HETCH-HETCHY POWER BY THE PACIFIC GAS & ELECTRIC
COMPANY.  NOW, AS IT HAS BEEN DOING SINCE CONTRACTING WITH THE CITY IN
1925, THE COMPANY SELLS AND DISTRIBUTES THAT POWER AS FOLLOWS: 

POWER GENERATED IN THE CITY'S PLANT IS TRANSMITTED TO THE COMPANY AT
NEWARK, ABOUT THIRTY-FIVE MILES FROM SAN FRANCISCO.  THERE THE POWER IS
DELIVERED TO THE COMPANY'S SUB-STATION AND THEREAFTER IS UNDER THE
COMPANY'S COMPLETE CONTROL.  THE COMPANY DISTRIBUTES AND SELLS THIS
POWER TO ITS CUSTOMERS IN SAN FRANCISCO AND ELSEWHERE EXACTLY AS IT
HANDLES OTHER POWER WHICH IT GENERATES, BUYS OR OWNS.  CONSUMERS OF THE
POWER ARE BILLED BY AND PAY THE COMPANY.  THE CITY BUYS HETCH-HETCHY
POWER FROM THE COMPANY EXACTLY AS DO OTHER CONSUMERS.  THE CITY
RECEIVES MONTHLY PAYMENTS FROM THE COMPANY ON A FIXED BASIS SET OUT IN
THE CONTRACT.  THE PRICE RECEIVED BY THE CITY HAS REMAINED CONSTANT
FROM 1925 TO DATE ALTHOUGH RATES TO THE CONSUMERS HAVE VARIED IN THE
INTERIM.  IN THE EVENT OF THE REFUSAL, FAILURE OR INABILITY OF THE
COMPANY TO TAKE THE AVAILABLE OUTPUT OF THE CITY'S PLANT IN ACCORDANCE
WITH THE AGREEMENT, THE AMOUNT OF ENERGY WHICH THE CITY COULD HAVE
DELIVERED IS THE BASIS OF MAKING THE MONTHLY PAYMENT, AND THE COMPANY
MUST PAY FOR POWER DELIVERED TO IT WHETHER ACTUALLY DISPOSED OF BY
RESALE OR NOT.  THE RATE PAID BY CONSUMERS FOR THE HETCH-HETCHY POWER
IS NOT FIXED BY THE CITY, AS IT COULD BE UNDER THE CONSTITUTION OF
CALIFORNIA,  FN20  BUT IS FIXED BY THE STATE RAILROAD COMMISSION JUST
AS THE PRICE OF ALL OTHER POWER SOLD BY THE PACIFIC GAS & ELECTRIC
COMPANY IN CALIFORNIA IS FIXED. 

THUS, IN BRIEF, THE CITY DOES NOT ITSELF DISTRIBUTE AND SELL THE
POWER DIRECTLY TO CONSUMERS; IT HAS NOT PROVIDED COMPETITION WITH THE
PRIVATE POWER COMPANY; AND IT HAS TRANSFERRED THE RIGHT TO SELL AND
DISTRIBUTE THE POWER TO A PRIVATE POWER COMPANY IN VIOLATION OF THE
EXPRESS PROHIBITION OF SEC. 6 OF THE ACT. 

TERMINOLOGY OF CONSIGNMENT OF POWER, RATHER THAN OF TRANSFER BY SALE,
AND VERBAL DESCRIPTION OF THE POWER COMPANY AS THE CITY'S AGENT OR
CONSIGNEE, ARE NOT SUFFICIENT TO TAKE THE ACTIONS OF THE PARTIES UNDER
THE CONTRACT OUT OF SEC. 6.  CONGRESS, IN EFFECT TRUSTEE OF PUBLIC
LANDS FOR ALL THE PEOPLE, HAS BY THIS ACT SOUGHT TO PROTECT AND CONTROL
THE DISPOSITION OF A SECTION OF THE PUBLIC DOMAIN.  THE CITY HAS IN
FACT FOLLOWED A COURSE OF CONDUCT WHICH CONGRESS, BY SEC. 6, HAS
FORBIDDEN.  MERE WORDS AND INGENUITY OF CONTRACTUAL EXPRESSION,
WHATEVER THEIR EFFECT BETWEEN THE PARTIES, CANNOT BY DESCRIPTION MAKE
PERMISSIBLE A COURSE OF CONDUCT FORBIDDEN BY LAW.  WHEN WE LOOK BEHIND
THE WORD DESCRIPTION OF THE ARRANGEMENT BETWEEN THE CITY AND THE POWER
COMPANY TO WHAT WAS ACTUALLY DONE, WE SEE THAT THE CITY HAS - CONTRARY
TO THE TERMS OF SEC. 6 - ABDICATED ITS CONTROL OVER THE SALE AND
ULTIMATE DISTRIBUTION OF HETCH-HETCHY POWER.  THERE REMAIN ONLY THE
DETERMINATIONS WHETHER THE PROHIBITIONS OF SEC. 6 ARE CONSTITUTIONAL
AND CAN BE ENFORCED IN EQUITY. 

SECOND.  THE PROHIBITIONS OF SEC. 6 ARE CHALLENGED BY THE CITY AS AN
UNCONSTITUTIONAL INVASION OF THE RIGHTS OF THE STATE OF CALIFORNIA ON
THE GROUND THAT THEY ATTEMPT TO REGULATE THE MANNER IN WHICH
ELECTRICITY SHALL BE DISPOSED OF IN SAN FRANCISCO.  AND THE CITY
THEREFORE INSISTS THAT THESE PROHIBITIONS MUST BE CONSIDERED ONLY AS
COVENANTS IN A CONTRACT BETWEEN THE CITY AND THE UNITED STATES.  UPON
THIS PREMISE, THE CITY HAS ARGUED HERE, AS IT DID IN THE COURT OF
APPEALS, THAT ALLEGED EQUITABLE DEFENSES RENDER THE COVENANTS
UNENFORCEABLE. 

WHEN THE RAKER BILL WAS BEFORE CONGRESS, THE CITY FILED WITH THE
PUBLIC LANDS COMMITTEE OF THE HOUSE A BRIEF AND ARGUMENT IN SUPPORT OF
THE BILL.  CITING AUTHORITIES, INCLUDING THIS COURT'S OPINIONS, AND
LEGISLATIVE PRECEDENTS, THE CITY SUBMITTED TO CONGRESS THAT AS GRANTEE
IT WOULD BE BOUND BY AND AS GRANTOR CONGRESS WAS EMPOWERED TO IMPOSE
"THE CONDITIONS SET FORTH IN THE HETCH-HETCHY BILL."  FN21  AFTER
PASSAGE OF THE BILL THE CITY ACCEPTED THE GRANT BY FORMAL ORDINANCE,
ASSENTED TO ALL THE CONDITIONS CONTAINED IN THE GRANT, CONSTRUCTED THE
REQUIRED POWER AND WATER FACILITIES, AND UP TO DATE HAS UTILIZED THE
RIGHTS, PRIVILEGES AND BENEFITS GRANTED BY CONGRESS.  NOW, THE CITY
SEEKS TO RETAIN THE BENEFITS OF THE ACT WHILE ATTACKING THE
CONSTITUTIONALITY OF ONE OF ITS IMPORTANT CONDITIONS.  FN22 

ARTICLE 4, SEC. 3, CL. 2 OF THE CONSTITUTION PROVIDES THAT "THE
CONGRESS SHALL HAVE POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND
REGULATIONS RESPECTING THE TERRITORY AND OTHER PROPERTY BELONGING TO
THE UNITED STATES."  THE POWER OVER THE PUBLIC LAND THUS ENTRUSTED TO
CONGRESS IS WITHOUT LIMITATIONS.  FN23  "AND IT IS NOT FOR THE COURTS
TO SAY HOW THAT TRUST SHALL BE ADMINISTERED.  THAT IS FOR CONGRESS TO
DETERMINE."  FN24  THUS, CONGRESS MAY CONSTITUTIONALLY LIMIT THE
DISPOSITION OF THE PUBLIC DOMAIN TO A MANNER CONSISTENT WITH ITS VIEWS
OF PUBLIC POLICY.  AND THE POLICY TO GOVERN DISPOSAL OF RIGHTS TO
DEVELOP HYDROELECTRIC POWER IN SUCH PUBLIC LANDS MAY, IF CONGRESS
CHOOSES, BE ONE DESIGNED TO AVOID MONOPOLY AND TO BRING ABOUT A WIDE
SPREAD DISTRIBUTION OF BENEFITS.  THE STATUTORY REQUIREMENT THAT HETCH
HETCHY POWER BE PUBLICLY DISTRIBUTED DOES NOT REPRESENT AN EXERCISE OF
A GENERAL CONTROL OVER PUBLIC POLICY IN A STATE BUT INSTEAD ONLY AN
EXERCISE OF THE COMPLETE POWER WHICH CONGRESS HAS OVER PARTICULAR
PUBLIC PROPERTY ENTRUSTED TO IT.  FN25 

THIRD.  FINALLY, ON THE BASIS OF NUMEROUS OBJECTIONS TO THE DISTRICT
COURT'S JUDGMENT, ASSIGNED AS ERRORS IN THE COURT BELOW AND PRESSED
HERE, THE CITY DENIES THE GOVERNMENT'S RIGHT - UPON A BALANCING OF
EQUITIES - TO RELIEF BY INJUNCTION EVEN IF THE PRESENT DISPOSITION OF
HETCH-HETCHY POWER BE IN VIOLATION OF THE ACT. 

HOWEVER, AFTER CONSIDERATION OF ALL THESE OBJECTIONS, WE ARE
SATISFIED THAT THIS CASE DOES NOT CALL FOR A BALANCING OF EQUITIES OR
FOR THE INVOCATION OF THE GENERALITIES OF JUDICIAL MAXIMS IN ORDER TO
DETERMINE WHETHER AN INJUNCTION SHOULD HAVE ISSUED.  THE CITY IS
AVAILING ITSELF OF VALUABLE RIGHTS AND PRIVILEGES GRANTED BY THE
GOVERNMENT AND YET PERSISTS IN VIOLATING THE VERY CONDITIONS UPON WHICH
THOSE BENEFITS WERE GRANTED.  CONGRESS PROVIDED "THAT THE GRANTEE
(CITY) SHALL AT ALL TIMES COMPLY WITH AND OBSERVE ON ITS PART ALL THE
CONDITIONS SPECIFIED IN THIS ACT, AND IN THE EVENT THAT THE SAME ARE
NOT REASONABLY COMPLIED WITH AND CARRIED OUT BY THE GRANTEE, UPON
WRITTEN REQUEST OF THE SECRETARY OF THE INTERIOR, IT IS MADE THE DUTY
OF THE ATTORNEY GENERAL IN THE NAME OF THE UNITED STATES TO COMMENCE
ALL NECESSARY SUITS OR PROCEEDINGS IN THE PROPER COURT HAVING
JURISDICTION THEREOF, FOR THE PURPOSE OF ENFORCING AND CARRYING OUT THE
PROVISIONS OF THIS ACT."  PURSUANT TO THIS LEGISLATIVE MANDATE, THE
PRESENT SUIT WAS INSTITUTED TO ENFORCE COVENANTS EXACTED FROM A GRANTEE
OF RIGHTS IN THE PUBLIC DOMAIN BY A CONGRESS SYMPATHETIC WITH THE LOCAL
NEEDS OF SAN FRANCISCO BUT ALSO JEALOUS OF ITS OWN RESPONSIBILITY TO
DISPOSE OF SUCH RIGHTS IN A MANNER DEEMED BY IT MOST LIKELY TO RENDER
THEIR BENEFITS WIDESPREAD.  THE EQUITABLE DOCTRINES RELIED ON DO NOT
MILITATE AGAINST THE CAPACITY OF A COURT OF EQUITY AS A PROPER FORUM IN
WHICH TO MAKE A DECLARED POLICY OF CONGRESS EFFECTIVE.  INJUNCTION TO
PROHIBIT CONTINUED USE - IN VIOLATION OF THAT POLICY - OF PROPERTY
GRANTED BY THE UNITED STATES, AND TO ENFORCE THE GRANTEE'S COVENANTS,
IS BOTH APPROPRIATE AND NECESSARY.  FN26 

A SUBSTANTIAL PART OF THE CITY'S ARGUMENT RESTS UPON ITS CLAIM THAT
THE DEPARTMENT OF THE INTERIOR IN THE PERIOD FROM 1913 TO 1937
CONSTRUED SEC. 6 TO FORBID NO MORE THAN SALE OF POWER FOR RESALE.  WE
ARE ASKED TO ACCEPT THESE ADMINISTRATIVE INTERPRETATIONS.  AND IN
ADDITION THE CITY SUGGESTS THAT CONDUCT OF THE DEPARTMENT, OF WHICH
THESE INTERPRETATIONS WERE A PART, IS SUFFICIENT TO CREATE AN ESTOPPEL
AGAINST THE GOVERNMENT.  WHETHER THE DEPARTMENT AT ANY TIME EVER DID
MORE THAN MERELY TO TOLERATE SALE AND DISTRIBUTION OF HETCH-HETCHY
POWER BY THE COMPANY AS A TEMPORARY EXPEDIENT IS DOUBTFUL.  CERTAIN IT
IS, HOWEVER, THAT IN 1935 THE SECRETARY OF THE INTERIOR DECLARED THE
CITY'S DISPOSITION OF THE POWER THROUGH THE COMPANY TO BE A VIOLATION
OF SEC. 6, DEMANDED DISCONTINUANCE OF THIS VIOLATION WITHOUT SUCCESS
AND THEREAFTER INSTIGATED THIS PROCEEDING.  WE CANNOT ACCEPT THE
CONTENTION THAT ADMINISTRATIVE RULINGS - SUCH AS THOSE HERE RELIED ON -
CAN THWART THE PLAIN PURPOSE OF A VALID LAW.  AS TO ESTOPPEL, IT IS
ENOUGH TO REPEAT THAT "  ...  THE UNITED STATES IS NEITHER BOUND NOR
ESTOPPED BY ACTS OF ITS OFFICERS OR AGENTS IN ENTERING INTO AN
ARRANGEMENT OR AGREEMENT TO DO OR CAUSE TO BE DONE WHAT THE LAW DOES
NOT SANCTION OR PERMIT."  FN27 

THE JUDGMENT OF THE CIRCUIT COURT IS REVERSED.  THE JUDGMENT OF THE
DISTRICT COURT IS AFFIRMED AND WE REMAND THE CASE TO IT.  REVERSED. 

FN1  C. 4, 38 STAT. 242. 

FN2  THE CITY AND COUNTY OF SAN FRANCISCO IS A MUNICIPAL CORPORATION
OF CALIFORNIA AND WILL BE REFERRED TO HERE AS THE CITY. 

FN3  SECTION 9(U) OF THE ACT CONTAINS THE FOLLOWING:  "PROVIDED,
HOWEVER, THAT THE GRANTEE SHALL AT ALL TIMES COMPLY WITH AND OBSERVE ON
ITS PART ALL THE CONDITIONS SPECIFIED IN THIS ACT, AND IN THE EVENT
THAT THE SAME ARE NOT REASONABLY COMPLIED WITH AND CARRIED OUT BY THE
GRANTEE, UPON WRITTEN REQUEST OF THE SECRETARY OF THE INTERIOR, IT IS
MADE THE DUTY OF THE ATTORNEY GENERAL IN THE NAME OF THE UNITED STATES
TO COMMENCE ALL NECESSARY SUITS OR PROCEEDINGS IN THE PROPER COURT
HAVING JURISDICTION THEREOF, FOR THE PURPOSE OF ENFORCING AND CARRYING
OUT THE PROVISIONS OF THIS ACT."  38 STAT. 250. 

FN4  23 F.SUPP.  40.  THE DISTRICT COURT STATED:  "IN ORDER THAT THE
CITY MAY FACE ITS PROBLEM AND COMPLY WITH ITS OBLIGATIONS UNDER SECTION
6 OF THE RAKER ACT, THE COURT WILL MAKE ITS INJUNCTION ISSUABLE
FORTHWITH, BUT EFFECTIVE SIX MONTHS FROM THE DATE OF ITS ISSUE."  P.
53. 

FN5  106 F.2D 569. 

FN6  SEE SEC. 9(M). 

FN7  50 CONG. REC., PART 4, P. 3906.  MR. THOMSON OF ILLINOIS WAS A
MEMBER OF THE COMMITTEE THAT CONSIDERED AND REPORTED THE BILL. 

FN8  ID., P. 3999. 

FN9  H.R. NO. 41, 63RD CONG., 1ST SESS., P. 11. 

FN10  REFERENCE TO CONGRESSIONAL DEBATES MAY BE MADE TO ESTABLISH A
COMMON AGREEMENT UPON THE GENERAL PURPOSE OF AN ACT.  STANDARD OIL CO.
V. UNITED STATES, 221 U.S. 1, 50; FEDERAL TRADE COMMISSION V. RALADAM
CO., 283 U.S. 643, 650; HUMPHREY'S EXECUTOR V. UNITED STATES, 295 U.S.
602, 625. 

FN11  50 CONG. REC., PART 4, P. 3905. 

FN12  HOUSE REPORTS, VOL. 1, NOS. 17-92, 63RD CONG., 1ST SESS., 1913,
P. 25. 

FN13  50 CONG. REC., PART 4, P. 3991.  SEE ALSO 69 CONG. REC., PART
9, PP. 9239 ET SEQ. 

FN14  51 CONG. REC., PART 1, PP. 126, 136. 

FN15  51 CONG. REC., PART 1, PP. 343, 344, 347.  SENATOR PITTMAN, ONE
OF THE BILL'S SPONSORS AND A MEMBER OF THE REPORTING COMMITTEE, STATED
THAT THE BILL PROVIDED "ABSOLUTELY THAT NEITHER THIS WATER NOR THIS
POWER CAN EVER FALL INTO THE HANDS OF A MONOPOLY."  50 CONG. REC., PART
6, P. 5473. 

FN16  SEE, E.G., VIEWS OF SENATOR SMOOT, WHO OPPOSED THE MEASURE:  "
...  I WAS OPPOSED TO THE REGULATIONS THAT WERE PUT IN THIS BILL, AND
THAT IS WHAT I WAS OPPOSED TO MORE THAN ANY OTHER THING.  I WANTED THE
QUESTION OF REGULATIONS TAKEN OUT OF THE CONTROVERSY AND THE BILL
REPORTED TO THE SENATE WITHOUT THOSE REGULATIONS IN IT. 

"  ... 

"MR. PRESIDENT, I DO NOT THINK THERE OUGHT TO BE ANY MISUNDERSTANDING
ABOUT THIS MATTER.  THE SENATOR HIMSELF, I THINK, WILL ADMIT THAT THE
PRINCIPAL OBJECT OF THIS BILL IS TO PROVIDE FOR THE CREATION OF POWER,
...  " 

"  ...  I WILL, MOREOVER, SAY THAT IT IS MY OPINION THAT THE REASON
SAN FRANCISCO WANTS THIS PARTICULAR DAM SITE IS FOR THE POWER THAT SHE
THINKS CAN BE DEVELOPED CHEAPER THAN FROM ANY OTHER SOURCE, AND AT THE
SAME TIME GET A LARGE SUPPLY OF WATER.  THAT IS MY PERSONAL OPINION." 
51 CONG. REC., PART 1, PP. 304, 314, 360. 

FN17  "THE PEOPLE WHO RIDE ON STREET CARS, THE PEOPLE WHO USE
ELECTRIC LIGHTS, THE PEOPLE WHO ARE NOW USING GAS, THOSE WHO EVENTUALLY
WILL USE COAL FOR PURPOSES OF HEAT, AND THOSE WHO USE WATER FOR WASHING
PURPOSES WILL ALL RECEIVE ALL THE BENEFIT THERE IS IN THIS LEGISLATION
WITHOUT ANY RAKE-OFF BY ANY CORPORATION OR MONOPOLY."  SENATOR NORRIS,
51 CONG. REC., PART 1, P. 347. 

FN18  SENATOR CLARK, OF WYOMING, ALSO OPPOSED TO THE POWER PROVISION
OF THE BILL, SAID WITH REFERENCE TO SENATOR MCCUMBER'S AMENDMENT:  "
...  THE SENATOR FROM NORTH DAKOTA (MR. MCCUMBER) HAS PREPARED AN
AMENDMENT TO THE BILL WHICH ACCOMPLISHES ALL THE PURPOSES WHICH THE
PROPONENTS OF THE BILL CLAIM ARE DESIRED, LEAVING OUT THE OBJECTIONABLE
FEATURES, WHICH HAVE NOTHING WHATEVER TO DO WITH THE WATER SUPPLY OF
THE CITY OF SAN FRANCISCO."  51 CONG. REC., PART 1, P. 184. 

FN19  ID., PP. 383, 384, 385. 

FN20  UNDER ART. XII, SEC. 23 OF THE CALIFORNIA CONSTITUTION
MUNICIPALITIES ARE EXEMPT FROM RATE REGULATION BY THE STATE
COMMISSION.  SEE PASADENA V. RAILROAD COMMISSION, 183 CAL. 526; 192 P.
25; WATER USERS ASSN. V. RAILROAD COMMISSION, 188 CAL. 437; 205 P.
682. 

FN21  H.R. NO. 41, 63RD CONG., 1ST SESS., P. 41.  SIMILAR VIEWS WERE
ENTERTAINED IN CONGRESS UPON THE EFFECT OF THE CONDITIONS.  SEE, E.G.,
SENATOR WALSH OF MONTANA:  "WE ARE MAKING A GRANT OF RIGHTS IN THE
PUBLIC LANDS TO THE CITY OF SAN FRANCISCO, AND WE MAY IMPOSE JUST
EXACTLY SUCH CONDITIONS AS WE SEE FIT, AND SAN FRANCISCO CAN TAKE THE
GRANT WITH ALL THOSE CONDITIONS OR IT CAN LET IT ALONE."  51 CONG.
REC., PART 1, P. 69.    FN22  CF. DANIELS V. TEARNEY, 102 U.S. 415,
421; GRAND RAPIDS & INDIANA RY. CO. V. OSBORN, 193 U.S. 17, 29; WALL V.
PARROT SILVER & COPPER CO., 244 U.S. 407, 411; ST. LOUIS CO. V.
PRENDERGAST CO., 260 U.S. 469, 473; BOOTH FISHERIES V. INDUSTRIAL
COMMISSION, 271 U.S. 208, 211. 

FN23  UNITED STATES V. GRATIOT, 14 PET. 526, 537. 

FN24  LIGHT V. UNITED STATES, 220 U.S. 523, 537. 

FN25  CF. ELLIS V. UNITED STATES, 206 U.S. 246, 256; SEE RUDDY V.
ROSSI, 248 U.S. 104. 

FN26  CF. OREGON & CALIFORNIA R. CO. V. UNITED STATES, 238 U.S. 393,
436, 438.    FN27  UTAH POWER & LIGHT CO. V. UNITED STATES, 243 U.S.
389, 409. 

MR. JUSTICE MCREYNOLDS IS OF THE OPINION THAT THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS SHOULD BE AFFIRMED. 
..END :












VEIX V. SIXTH WARD ASSN., 310 U.S. 32 


NO. 567.  ARGUED MARCH 6, 1940.  - DECIDED APRIL 22, 1940.  - 123 N.J.L.
356 - 8 A.2D 350, AFFIRMED. 


1.  ON APPEAL UNDER JUD.  CODE SEC. 237(A) FROM A JUDGMENT OF A STATE
COURT SUSTAINING THE CONSTITUTIONALITY OF A STATE STATUTE, THIS COURT
DOES NOT CONSIDER THE APPLICATION OF LATER AMENDATORY STATUTES WHICH
WERE NOT CONSIDERED BY THE STATE COURT IN ITS OPINION.  P. 36. 

2.  FOR THE SAKE OF SAFEGUARDING THE SOLVENCY OF BUILDING AND LOAN
ASSOCIATIONS IN THE PUBLIC INTEREST, A STATE LEGISLATURE MAY,
INDEPENDENTLY OF EMERGENCY AND CONSISTENTLY WITH THE CONTRACT CLAUSE OF
THE CONSTITUTION, RESTRICT THE RIGHTS OF CERTIFICATE HOLDERS, EXISTING
UNDER STATUTORY REGULATIONS IN FORCE WHEN THEY ACQUIRED THEIR
CERTIFICATES, TO WITHDRAW OR RECOVER BY SUIT THE AMOUNTS OF THEIR
CERTIFICATES.  P. 38. 

3.  WHEN THE PLAINTIFF PURCHASED HIS CERTIFICATES, THE STATUTES OF
NEW JERSEY PERMITTED HIM TO WITHDRAW UPON WRITTEN NOTICE AND PROVIDED
THAT WITHDRAWALS SHOULD BE PAID IN THE ORDER IN WHICH NOTICES WERE
RECEIVED, AT LEAST ONE-HALF OF THE RECEIPTS IN ANY MONTH BEING ASSIGNED
TO THIS PURPOSE; IF NOT PAID IN SIX MONTHS, THE SHAREHOLDER COULD
RECOVER WITHDRAWAL VALUE BY SUIT.  THE AMENDATORY ACT, HERE SUSTAINED,
DEFINED THE RECEIPTS FROM ONE-HALF OF WHICH WITHDRAWALS WERE TO BE
SATISFIED; PROVIDED THAT IF IN ANY MONTH THE FUNDS PAYABLE FOR
WITHDRAWALS WERE INSUFFICIENT TO PAY ALL WITHDRAWING MEMBERS, THEY WERE
TO RECEIVE $500 EACH IN THE ORDER OF PRIORITY UNTIL THE FUND FOR
WITHDRAWALS WAS EXHAUSTED; WITHDRAWAL PAYMENTS WERE SUBORDINATED TO
PAYMENT OF MATURED SHARES; AND SO LONG AS THE FUNDS OF AN ASSOCIATION
WERE APPLIED AS REQUIRED BY THE AMENDMENT, NO MEMBER COULD SUE FOR THE
WITHDRAWAL VALUE OF HIS SHARES.  PP. 34-36. 

VEIX V. SIXTH WARD BUILDING & LOAN ASSOCIATION OF NEWARK. 

APPEAL FROM THE SUPREME COURT OF NEW JERSEY. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT DISMISSING THE COMPLAINT IN
THE SUIT BROUGHT BY VEIX AGAINST THE BUILDING & LOAN ASSOCIATION TO
RECOVER THE AMOUNT OF HIS PAID UP SHARES WITH INTEREST. 

WHEN A RIGHT HAS ARISEN UNDER A CONTRACT OF WHICH A STATUTE IS AN
INTEGRAL PART, THE REPEAL OF THE STATUTE DOES NOT AFFECT THAT CONTRACT,
OR AFFECT AN ACTION FOR ITS ENFORCEMENT.  TREIGLE V. ACME HOMESTEAD
ASSN., 297 U.S. 189; COOMBES V. GETZ, 285 U.S. 434; ETTOR V. TACOMA,
228 U.S. 148; PACIFIC MAIL S.S. CO. V. JOLIFFE, 69 U.S. 450; BEDFORD V.
EASTERN BUILDING & LOAN ASSN., 181 U.S. 227. 

EXECUTORY AS WELL AS EXECUTED CONTRACTS ARE PROTECTED FROM
IMPAIRMENT.  FLETCHER V. PECK, 6 CRANCH 87; FARRINGTON V. TENNESSEE, 95
U.S. 679. 

IT IS THE DUTY OF COURTS TO DETERMINE WHETHER EXERCISE OF THE POLICE
POWER IS REASONABLE.  LEGISLATURES MAY NOT IMPOSE RESTRICTIONS THAT ARE
UNNECESSARY AND UNREASONABLE UPON THE USE OF PRIVATE PROPERTY OR THE
PURSUIT OF USEFUL ACTIVITIES.  HOME BLDG. & LOAN ASSN. V. BLAISDELL,
290 U.S. 398; TREIGLE V. ACME HOMESTEAD ASSN., SUPRA; NEBBIA V. NEW
YORK, 297 U.S. 502; WASHINGTON EX REL. SEATTLE TITLE TRUST CO. V.
ROBERGE, 278 U.S. 116. 

THE LEGISLATION IN QUESTION BEARS NO REASONABLE RELATION TO THE
PUBLIC WELFARE AND IS UNJUST AND DISCRIMINATORY, AND THE MEANS ADOPTED
BY THE SUBSEQUENT LEGISLATION ARE NOT REASONABLY ADAPTED TO THE
ACCOMPLISHMENT OF ITS ALLEGED PURPOSE. 

TO DELEGATE TO THE BOARD OF DIRECTORS DISCRETIONARY POWER TO ALLOCATE
ALL OF THE INCOME TO RESERVES INDEFINITELY, IS UNREASONABLE AND
UNCONSTITUTIONAL. 

TO DELEGATE TO THE BOARD OF DIRECTORS DISCRETIONARY POWER TO PREVENT
WITHDRAWALS INDEFINITELY, IS UNREASONABLE AND UNCONSTITUTIONAL
ESPECIALLY BECAUSE THE DIRECTORS THEMSELVES ARE SUBSTANTIAL
SHAREHOLDERS.  EUBANK V. RICHMOND, 226 U.S. 137; WASHINGTON EX REL.
SEATTLE TITLE TRUST CO. V. ROBERGE, 278 U.S. 116. 

LEGISLATION WHICH DELEGATES TO PRIVATE BOARDS OF DIRECTORS OF
BUILDING AND LOAN ASSOCIATIONS THE UNLIMITED DISCRETIONARY POWER TO
SUSPEND THE PRIOR LAWS REGARDING WITHDRAWALS, BY MEANS OF AN ARTIFICIAL
DEFINITION OF "NET RECEIPTS," IS UNREASONABLE AND UNCONSTITUTIONAL. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

IN 1928 AND 1929 APPELLANT PURCHASED PREPAID SHARES OF THE APPELLEE,
A NEW JERSEY BUILDING AND LOAN ASSOCIATION, PAYING THE PAR VALUE OF
$200 PER SHARE.  AT THAT TIME THE APPLICABLE NEW JERSEY STATUTES
PROVIDED THAT SHARES IN SUCH AN ASSOCIATION COULD BE WITHDRAWN BY
GIVING SUCH WRITTEN NOTICE AS THE CONSTITUTION OR BY-LAWS OF THE
ASSOCIATION PROVIDED, NOT TO EXCEED 30 DAYS; THAT WITHDRAWALS SHOULD BE
PAID IN THE ORDER IN WHICH NOTICES WERE RECEIVED, WITH NOT MORE THAN
ONE-HALF OF THE RECEIPTS OF ANY MONTH BEING REQUIRED TO BE USED FOR
PAYMENT OF WITHDRAWALS, WITHOUT THE CONSENT OF THE BOARD OF DIRECTORS,
UNTIL THE OLDEST UNPAID CLAIM OF WITHDRAWAL HAD BEEN ON FILE FOR SIX
MONTHS; THAT NO PAYMENT SHOULD BE POSTPONED FOR LONGER THAN SIX MONTHS
FROM THE DATE OF NOTICE; AND THAT ANY MEMBER WHO HAD GIVEN NOTICE COULD
SUE AND RECOVER THE WITHDRAWAL VALUE IF IT WAS NOT PAID WITHIN SIX
MONTHS OF THE NOTICE.  FN1 

ON APRIL 22, 1932, THESE STATUTES WERE AMENDED IN FOUR RESPECTS:  (1)
"TOTAL RECEIPTS" OF AN ASSOCIATION, ONE-HALF OF WHICH WERE REQUIRED TO
BE USED FOR THE PAYMENT OF WITHDRAWALS AND WHICH HAD NOT BEEN
PREVIOUSLY DEFINED, WERE DEFINED AS INCOME ON AUTHORIZED INVESTMENTS,
DUES ON SHARES OF THE ASSOCIATION WHICH WERE PLEDGED WITH IT TO SECURE
LOANS, AND REPAYMENTS FROM LOANS; (2) IF IN ANY ONE MONTH THE FUNDS
REQUIRED TO BE PAYABLE FOR WITHDRAWALS WERE INSUFFICIENT TO PAY ALL
REQUESTED WITHDRAWALS, WITHDRAWING MEMBERS WERE TO RECEIVE $500 EACH IN
THE ORDER OF PRIORITY UNTIL THE FUND FOR WITHDRAWALS WAS EXHAUSTED; (3)
NO WITHDRAWALS WERE TO BE PAID IF THE FUNDS AVAILABLE FOR PAYMENT OF
MATURED SHARES WERE INSUFFICIENT TO PAY ALL MATURED SHARES, THE PAYMENT
OF WHICH HAD BEEN REQUESTED WITHIN THIRTY DAYS AFTER MATURITY; (4) SO
LONG AS THE FUNDS OF AN ASSOCIATION WERE APPLIED AS REQUIRED BY THE
AMENDMENT, NO MEMBER WHO HAD FILED HIS WITHDRAWAL NOTICE SHOULD HAVE A
RIGHT TO SUE FOR THE WITHDRAWAL VALUE OF HIS SHARES.  FN2 

IN 1935 ANOTHER AMENDMENT WAS PASSED PROVIDING THAT ONE-THIRD OF THE
"NET RECEIPTS" OF AN ASSOCIATION WERE TO BE PAYABLE FOR WITHDRAWALS,
WITH "NET RECEIPTS" DEFINED AS MONIES, OTHER THAN BORROWED MONIES,
RECEIVED BY THE ASSOCIATION LESS OPERATING EXPENSES, PAYMENTS ON
CREDITOR OBLIGATIONS, PAYMENTS FOR PROTECTING THE PROPERTY OF THE
ASSOCIATION AND RESERVES FOR ANY OF THESE PURPOSES.  AT THE SAME TIME
PAYMENT OF WITHDRAWALS IN THE ORDER IN WHICH NOTICES HAD BEEN RECEIVED
WAS CONTINUED BUT THE PAYMENTS WERE LIMITED TO $50 PER MEMBER. 

MINOR AMENDMENTS, NOT PERTINENT HERE, WERE ADDED IN 1936 AND IN 1937
THE STATUTES, AS THEY STOOD IN 1936 WITH SOME IMMATERIAL CHANGES, WERE
CARRIED INTO A GENERAL REVISION OF NEW JERSEY'S STATUTE LAW. 

ON AUGUST 17, 1932, AFTER THE PASSAGE OF THE 1932 AMENDMENT,
APPELLANT FILED A WRITTEN NOTICE OF WITHDRAWAL WITH RESPONDENT.  IN
1939, HE BROUGHT THIS SUIT AGAINST RESPONDENT FOR THE WITHDRAWAL VALUE
OF HIS SHARES, CLAIMING THAT, IN SO FAR AS ANY OF THE AMENDMENTS
REFERRED TO ALTERED THE STATUTES IN EXISTENCE AT THE TIME OF PURCHASE
OF THE SHARES, THE AMENDMENTS WERE UNCONSTITUTIONAL VIOLATIONS OF THE
CONTRACTS CLAUSE OF ARTICLE I AND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  THE ALLEGATIONS SHOW THAT THE ASSOCIATION WAS
SOLVENT AT THE TIME OF NOTICE OF WITHDRAWAL AND HAS REMAINED SOLVENT. 
THE TRIAL COURT DISMISSED APPELLANT'S COMPLAINT.  THE COURT OF ERRORS
AND APPEALS AFFIRMED.  123 N.J.L. 356; 8 A.2D 350. 

THE RULING WAS BASED SQUARELY ON THE CONSTITUTIONALITY OF THE ACT OF
1932.  THE LATER ACTS WERE NOT REFERRED TO IN THE OPINION EXCEPT BY
POINTING OUT THAT THE ACT OF 1932 WOULD BE FOUND IN THE 1937 REVISION. 
THE CASE IS HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICAL CODE.  AS
THIS SECTION GIVES A REVIEW TO THIS COURT ONLY OF STATE STATUTES HELD
VALID BY THE HIGHEST COURT OF A STATE AGAINST AN ATTACK FOR REPUGNANCY
TO THE CONSTITUTION OF THE UNITED STATES, WE DEEM OURSELVES LIMITED TO
THE ACT OF 1932.  FN3  THE QUESTION OF THE APPLICABILITY TO WITHDRAWALS
OF STATUTES ON THE SUBJECT WHICH WERE PASSED SUBSEQUENT TO THE NOTICE
OF WITHDRAWAL IS NOT CONSIDERED IN THIS OPINION.  FN4 

THE NEW JERSEY STATUTES CONCERNING THE REGULATION OF BUILDING AND
LOAN ASSOCIATIONS REACH BACK MANY YEARS PRIOR TO THE PURCHASE OF THESE
SHARES.  BEGINNING IN 1903 GENERAL REGULATORY ACTS WERE PASSED AT
INTERVALS WITH SECTIONS DIRECTED AT THE MODE OF WITHDRAWAL.  FN5  THE
FORM OF THESE STATUTES AND THE JUDICIAL NOTICE BY THE COURT OF ERRORS
AND APPEALS IN THE BUCSI CASE OF THE IMPORTANCE TO THE STATE OF NEW
JERSEY OF BUILDING AND LOAN ASSOCIATIONS MAKES CLEAR THAT IN DEALING IN
1932 WITH THE PROBLEM OF WITHDRAWALS THE LEGISLATURE WAS FACED WITH THE
THREAT OF WRECKED ASSOCIATIONS AND THE CONSEQUENT FURTHER DEPRESSION OF
REAL ESTATE VALUES THROUGHOUT ITS AREA.  WHILE THE ACT OF 1932 NOW
UNDER REVIEW WAS NOT EMERGENCY LEGISLATION, THE DANGERS OF UNRESTRICTED
WITHDRAWALS THEN BECAME APPARENT.  IT WAS PASSED IN THE PUBLIC INTEREST
TO PROTECT THE ACTIVITIES OF THE ASSOCIATIONS FOR THE ECONOMIC WELFARE
OF THE STATE.  IT IS ALSO PLAIN THAT THE 1932 ACT WAS ONE OF A LONG
SERIES REGULATING THE MANY INTEGRATED PHASES OF THE BUILDING AND LOAN
BUSINESS SUCH AS FORMATION, MEMBERSHIP, POWERS, INVESTMENTS, REPORTS,
LIQUIDATIONS, FOREIGN ASSOCIATIONS AND EXAMINATIONS.  WE ARE DEALING
HERE WITH FINANCIAL INSTITUTIONS OF MAJOR IMPORTANCE TO THE CREDIT
SYSTEM OF THE STATE.  FN6 

WITH INSTITUTIONS OF SUCH IMPORTANCE TO ITS ECONOMY, THE STATE
RETAINS POLICE POWERS ADEQUATE TO AUTHORIZE THE ENACTMENT OF STATUTES
REGULATING THE WITHDRAWAL OF SHARES.  FN7  UNQUESTIONABLY FOR THE
FUTURE, THE PROVISIONS OF THE 1932 ACT WOULD BE EFFECTIVE.  FN8  WE
THINK THEY WERE EQUALLY EFFECTIVE AS TO SHARES BOUGHT PRIOR TO THE
ENACTMENT OF THE STATUTE, NOTWITHSTANDING THE PROVISIONS OF ARTICLE I,
SEC. 10 OF THE CONSTITUTION THAT "NO STATE SHALL  ...  PASS ANY  ...
LAW IMPAIRING THE OBLIGATION OF CONTRACTS  ...  "  THIS IS SO BECAUSE
THE OBLIGATION OF THE ASSOCIATION TO RESPOND TO THE APPLICATION FOR
WITHDRAWAL WAS SUBJECT TO THE PARAMOUNT POLICE POWER.  BEGINNING WITH
THE 1903 ACT THE STATE OF NEW JERSEY HAS LAID DOWN SPECIFICALLY BY
STATUTE THE REQUIREMENTS FOR WITHDRAWAL.  THE CHARTER, BY-LAWS AND
MEMBERSHIP CERTIFICATE CEASED TO DETERMINE WITHDRAWAL RIGHTS.  (SEE
NOTE 5, SUPRA.) IT WAS WHILE STATUTORY REQUIREMENTS WERE IN EFFECT THAT
PETITIONER PURCHASED HIS SHARES.  WHEN HE PURCHASED INTO AN ENTERPRISE
ALREADY REGULATED IN THE PARTICULAR TO WHICH HE NOW OBJECTS, HE
PURCHASED SUBJECT TO FURTHER LEGISLATION UPON THE SAME TOPIC.  FN9 

IN HOME BUILDING & LOAN ASSOCIATION V. BLAISDELL  FN10  THIS COURT
CONSIDERED THE AUTHORITY RETAINED BY THE STATE OVER CONTRACTS "TO
SAFEGUARD THE VITAL INTERESTS OF ITS PEOPLE."  THE RULE THAT ALL
CONTRACTS ARE MADE SUBJECT TO THIS PARAMOUNT AUTHORITY WAS THERE
REITERATED.  SUCH AUTHORITY IS NOT LIMITED TO HEALTH, MORALS AND
SAFETY.  FN11  IT EXTENDS TO ECONOMIC NEEDS AS WELL.  FN12  UTILITY
RATE CONTRACTS GIVE WAY TO THIS POWER,  FN13  AS DO CONTRACTUAL
ARRANGEMENTS BETWEEN LANDLORDS AND TENANTS.  FN14 

THE CASES CITED IN THE PRECEDING PARAGRAPH MAKE REPEATED REFERENCE TO
THE EMERGENCY EXISTING AT THE TIME OF THE ENACTMENT OF THE QUESTIONED
STATUTES.  MANY OF THE ENACTMENTS WERE TEMPORARY IN CHARACTER.  WE ARE
HERE CONSIDERING A PERMANENT PIECE OF LEGISLATION.  SO FAR AS THE
CONTRACT CLAUSE IS CONCERNED, IS THIS SIGNIFICANT?  WE THINK NOT. 
"EMERGENCY DOES NOT CREATE (CONSTITUTIONAL) POWER, EMERGENCY MAY
FURNISH THE OCCASION FOR THE EXERCISE OF POWER."  FN15  WE THINK OF
EMERGENCIES AS SUDDENLY ARISING AND QUICKLY PASSING.  THE EMERGENCY OF
THE DEPRESSION MAY HAVE CAUSED THE 1932 LEGISLATION, BUT THE WEAKNESS
IN THE FINANCIAL SYSTEM BROUGHT TO LIGHT BY THAT EMERGENCY REMAINS.  IF
THE LEGISLATURE COULD ENACT THE LEGISLATION AS TO WITHDRAWALS TO
PROTECT THE ASSOCIATIONS IN THAT EMERGENCY, WE SEE NO REASON WHY THE
NEW STATUS SHOULD NOT CONTINUE.  WHEN THE 1932 ACT WAS PASSED
COMMERCIAL AND SAVINGS BANKS, INSURANCE COMPANIES AND BUILDING AND LOAN
ASSOCIATIONS WERE SUFFERING HEAVY WITHDRAWALS.  THE LIQUID PORTION OF
THEIR ASSETS WERE BEING RAPIDLY DRAINED OFF BY THEIR CUSTOMERS, LEAVING
THE LONG TERM INVESTMENTS AND DEPRECIATED ASSETS AS AN INADEQUATE
SOURCE FOR PAYMENT OF THE REMAINING LIABILITIES.  AN ACCELERATION OR A
CONTINUANCE OF THIS TENDENCY TO WITHDRAW AVAILABLE FUNDS THREATENED A
QUICK END TO THE ABILITY OF THE INSTITUTIONS TO MEET EVEN NORMAL
DEMANDS.  SUCH THREATENED INSOLVENCY DEMANDS LEGISLATION FOR ITS
CONTROL IN THE SAME WAY THAT LIQUIDATION AFTER INSOLVENCY DOES.  SUCH
LEGISLATION MAY BE CLASSED AS EMERGENCY IN ONE SENSE BUT IT NEED NOT BE
TEMPORARY.  FN16 

THIS POWER OF THE STATE TO PROTECT ITS CITIZENS BY STATUTORY
ENACTMENTS AFFECTING CONTRACT RIGHTS, WITHOUT A VIOLATION OF THE
CONTRACT CLAUSE OF THE CONSTITUTION, IS ANALOGOUS TO THE POWER OFTEN
RESERVED TO AMEND CHARTERS.  UNDER THIS RESERVED POWER, IT IS HELD THAT
THE RELATIONS BETWEEN A STOCKHOLDER OR CERTIFICATE HOLDER AND THE
CORPORATION MAY BE VARIED WITHOUT IMPAIRING THE CONTRACT EXISTING
BETWEEN THE CORPORATION AND ITS STOCKHOLDER OR MEMBER.  FN17  THE
CONTRACT RIGHTS CONSIDERED IN COOMBES V. GETZ  FN18  AROSE FROM A
CONTRACT BETWEEN A THIRD PARTY AND THE CORPORATION.  AND THE POWER
RESERVED AGAINST THE CORPORATION AND ITS MEMBERS WAS DEEMED TO BE
INEFFECTIVE AGAINST A STRANGER TO THE RESERVATION. 

APPELLANT RELIES UPON TREIGLE V. ACME HOMESTEAD ASSOCIATION N19 AS A
DETERMINATIVE PRECEDENT IN SUPPORT OF HIS ARGUMENT THAT THE WITHDRAWAL
ARRANGEMENTS BETWEEN THE ASSOCIATION AND APPELLANT WERE CONTRACTUAL AND
SECURE FROM IMPAIRMENT BY THE STATUTORY EXERCISE OF THE PARAMOUNT
POLICE POWER OF THE STATE.  IN THAT CASE STATUTORY CHANGES AS TO THE
RIGHT OF WITHDRAWAL, SIMILAR TO THESE INVOLVED HERE, HAD BEEN MADE
AFTER THE PURCHASE OF THE SHARES.  THE ENACTMENT IN THE TREIGLE CASE
OCCURRED AFTER NOTICE OF WITHDRAWAL.  FROM ALL THE CIRCUMSTANCES OF THE
LOUISIANA BUILDING AND LOAN SITUATION AT THE TIME OF THE LEGISLATION
ATTACKED IN THE TREIGLE CASE THIS COURT REACHED THE FACTUAL CONCLUSION
THAT THE WITHDRAWAL AMENDMENT TO THE BUILDING AND LOAN STATUTES WAS
DIRECTED MERELY TOWARD A PRIVATE RIGHT AND NOT DEEMED IN THE PUBLIC
INTEREST. 

IT IS TO BE NOTED THAT THIS COURT WAS CAREFUL TO POINT OUT IN THE
TREIGLE CASE  FN20  THAT WHERE THE POLICE POWER IS EXERCISED "FOR AN
END WHICH IS IN FACT PUBLIC" CONTRACTS MUST YIELD TO THE ACCOMPLISHMENT
OF THAT END.  FN21 

CERTAINLY THE PROTECTION OF BUILDING AND LOAN ASSOCIATIONS AGAINST
THE CATASTROPHE OF EXCESSIVE WITHDRAWAL IS, TODAY, WITHIN LEGISLATIVE
POWER. 

SEPARATE CONSIDERATION OF THE OBJECTION TO THE LEGISLATION UNDER THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT
SEEMS WHOLLY UNNECESSARY.  AFFIRMED.    FN1  LAWS OF N.J., 1925, C. 65,
SEC. 52. 

FN2  LAWS OF N.J., 1932, C. 102. 

FN3  CF. BUCSI V. LONGWORTH B. & L. ASSN., 119 N.J.L. 120; 194 A.
857, WHERE THE SAME COURT DEALT WITH STATUTES ENACTED AFTER NOTICE OF
WITHDRAWAL. 

FN4  CF. CARPENTER V. WABASH RY. CO., ANTE, P. 23. 

FN5  BUCSI V. LONGWORTH B. & L. ASSN., 119 N.J.L. 120, 124; 194 A.
857; LAWS OF N.J., 1903, C. 218, SEC. 38; LAWS OF N.J., 1925, C. 65,
SEC. 49; LAWS OF N.J., 1932, C. 102; REVISED STATUTES OF N.J., 1937,
17:12-49, 12-53.    FN6  HOPKINS FEDERAL SAVINGS ASSN. V. CLEARY, 296
U.S. 315, 328; CF. PIQUET, BUILDING & LOAN ASSOCIATIONS IN NEW JERSEY,
CC. II, VI AND X. 

FN7  DILLINGHAM V. MCLAUGHLIN, 264 U.S. 370; NOBLE STATE BANK V.
HASKELL, 219 U.S. 104; DOTY V. LOVE, 295 U.S. 64. 

FN8  STOCKHOLDERS V. STERLING, 300 U.S. 175, AND CASES CITED. 

FN9  RAST V. VAN DEMAN & LEWIS, 240 U.S. 342, 363; SEMLER V. DENTAL
EXAMINERS, 294 U.S. 608, 610. 

FN10  290 U.S. 398, 434 ET SEQ. 

FN11  STONE V. MISSISSIPPI, 101 U.S. 814, 819; DOUGLAS V. KENTUCKY,
168 U.S. 488, 497-99; BEER CO. V. MASSACHUSETTS, 97 U.S. 25, 32, 33;
MUGLER V. KANSAS, 123 U.S. 623, 664, 665; FERTILIZING CO. V. HYDE PARK,
97 U.S. 659, 667; BUTCHERS' UNION CO. V. CRESCENT CITY CO., 111 U.S.
746, 750; CHICAGO, B. & Q.R. CO. V. NEBRASKA, 170 U.S. 57, 70, 74;
TEXAS & N.O.R. CO. V. MILLER, 221 U.S. 408, 414; ATLANTIC COAST LINE R.
CO. V. GOLDSBORO, 232 U.S. 548, 558; MANIGAULT V. SPRINGS, 199 U.S.
473. 

FN12  SPROLES V. BINFORD, 286 U.S. 374, 390; STEPHENSON V. BINFORD,
287 U.S. 251, 276; HENDERSON CO. V. THOMPSON, 300 U.S. 258, 266;
PATTERSON V. STANOLIND CO., 305 U.S. 376. 

FN13  UNION DRY GOODS CO. V. GEORGIA P.S. CORP., 248 U.S. 372;
MIDLAND REALTY CO. V. KANSAS CITY POWER CO., 300 U.S. 109. 

FN14  MARCUS BROWN CO. V. FELDMAN, 256 U.S. 170; LEVY LEASING CO. V.
SIEGEL, 258 U.S. 242. 

FN15  HOME BLDG. & L. ASSN. V. BLAISDELL, SUPRA, 426. 

FN16  CF. W.B. WORTHEN CO. V. THOMAS, 292 U.S. 426, 432. 

FN17  WRIGHT V. MINNESOTA MUTUAL LIFE INS. CO., 193 U.S. 657, 663;
POLK V. MUTUAL RESERVE FUND LIFE ASSN., 207 U.S. 310, 325; STOCKHOLDERS
V. STERLING, 300 U.S. 175, 183. 

FN18  285 U.S. 434. 

FN19  297 U.S. 189. 

FN20  ID., 197. 

FN21  CF. INDIANA EX REL. ANDERSON V. BRAND, 303 U.S. 95, 108. 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 
..END :















COLORADO BANK V. BEDFORD, 310 U.S. 41 


NO. 719.  ARGUED APRIL 2, 3, 1940.  - DECIDED APRIL 22, 1940.  - 105
COLO. 373; 98 P.2D 1120, AFFIRMED. 


1.  THIS CASE IS APPEALABLE UNDER JUD.  CODE SEC. 237(A), BECAUSE A
STATE STATUTE AFFECTING NATIONAL BANKS WAS UPHELD BY A STATE COURT OVER
THE OBJECTION OF CONFLICT WITH THE FEDERAL LAW AND CONSTITUTION.  P.
47. 

2.  NATIONAL BANKS ARE AUTHORIZED TO CONDUCT A SAFE-DEPOSIT
BUSINESS.  PP. 49-50. 

3.  IN THE ABSENCE OF CONTRARY LEGISLATION BY CONGRESS, A STATE LAW
LAYING A PERCENTAGE TAX ON THE USERS OF THE SAFETY-DEPOSIT SERVICES OF
BANKS MEASURED BY THE BANKS' CHARGES FOR THE SERVICES, AND REQUIRING
THE BANKS TO COLLECT THE TAXES, ACCOUNT FOR THEM TO THE STATE AND
INCLUDE THEM IN THEIR BILLS FOR THE SERVICES, BUT ALLOWING THEM CREDIT
ON FUTURE TAXES FOR TAXES PAID ON ACCOUNTS EVENTUALLY FOUND WORTHLESS,
HELD VALID AS APPLIED TO A NATIONAL BANK.  P. 52. 

4.  REQUIRING A NATIONAL BANK TO COLLECT AND REMIT THE TAX DOES NOT
IMPOSE AN UNCONSTITUTIONAL BURDEN ON A FEDERAL INSTRUMENTALITY.  P.
53. 

COLORADO NATIONAL BANK OF DENVER V. BEDFORD. 

APPEAL FROM THE SUPREME COURT OF COLORADO. 

APPEAL FROM THE AFFIRMANCE OF A DECLARATORY JUDGMENT ENTERED IN A
SUIT BY BEDFORD, TREASURER, AGAINST THE BANK. 

NATIONAL BANKS MAY BE TAXED ONLY AS PERMITTED BY CONGRESS, AND R.S.
SEC. 5219, AS AMENDED, MEASURES THAT PERMISSION.  MCCULLOCH V.
MARYLAND, 4 WHEAT.  316; BANK V. BENNETT, 284 U.S. 239. 

THE SAFE-DEPOSIT BUSINESS OF A NATIONAL BANK IS A PART OF ITS
NATIONALLY CHARTERED BANKING BUSINESS, AND IS A BANKING FUNCTION.  BANK
V. DEARING, 91 U.S. 29; R.S. SEC. 5136, AS AMENDED; R.S. SEC. 5228;
NATIONAL BANK V. GRAHAM, 100 U.S. 699; BANK OF CALIFORNIA V. PORTLAND,
157 ORE.  203. 

THE CONGRESSIONAL GRANT OF TAX IMMUNITY EXTENDS NOT ONLY TO THE
TANGIBLE PROPERTY, SHARES, AND INCOME OF A NATIONAL BANK, BUT ALSO TO
ALL OF ITS NATIONALLY CHARTERED FUNCTIONS, INCLUDING ITS SAFE-DEPOSIT
BUSINESS.  THE CASE IS ENTIRELY DIFFERENT FROM THOSE IN WHICH AN
IMPLIED IMMUNITY MAY BE CLAIMED OR ASSERTED; AND THE TAX IS PROHIBITED
EVEN THOUGH IT BE PAID OR PAYABLE BY THE USER OF THE BANK'S SERVICES. 
FEDERAL LAND BANK V. CROSLAND, 261 U.S. 374; PITTMAN V. HOME OWNERS'
LOAN CORP., 308 U.S. 21; BALTIMORE NATIONAL BANK V. COMMISSION, 297
U.S. 209; STATE TAX COMMISSION V. BALTIMORE NATIONAL BANK, 174 MD.
403. 

THE EXPRESS EXEMPTION IN SEC. 7(A) OF THE TAX ACT FROM TAXATION OF
SAFE-DEPOSIT SERVICES, SHOULD BE APPLIED SO AS TO AVOID
UNCONSTITUTIONALITY, BECAUSE BY THE ACT AND DECISIONAL LAW THE BANK IS
THE "TAXPAYER."  NEW ORLEANS V. HOUSTON, 119 U.S. 265; OPINION OF THE
JUSTICES, 88 N.H. 500; IN RE ATLAS TELEVISION CO., 273 N.Y. 51; DOBY V.
TAX COMMISSION, 234 ALA. 150; COVINGTON V. TAX COMMISSION, 257 KY. 84. 

ASSUMING THAT THE BANK IS NOT THE TAXPAYER AND THE TAX BURDEN IS NOT
UNLAWFUL, NEVERTHELESS THE OTHER BURDENS WHICH THE ACT THEN IMPOSES
UPON THE BANK, AS THE PERFORMER OF NATIONAL BANKING FUNCTIONS, RENDER
THE ACT UNCONSTITUTIONAL.  THE ACT SHOULD THEREFORE BE CONSTRUED AS
MAKING THE PERFORMER OF SERVICES THE TAXPAYER, AND AS EXEMPTING ALL
INTRA VIRES NATIONAL BANKING SERVICES FROM TAXATION.  IN RE OPINION OF
THE JUSTICES, SUPRA; ALLGEYER V. LOUISIANA, 165 U.S. 578; CLEMENT
NATIONAL BANK V. VERMONT, 231 U.S. 120. 

THE TREASURER'S APPLICATION OF THE ACT IS DISCRIMINATORY.  BEDFORD V.
JOHNSON, 102 COLO. 203. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL INVOLVES THE VALIDITY OF THE PUBLIC REVENUE SERVICE TAX
ACT OF COLORADO.  FN1  THE ACT, SEC. 5, IMPOSES UPON THE SERVICES
SPECIFIED IN THE ACT, A PERCENTAGE TAX BASED UPON THE VALUE OF THE
SERVICES RENDERED OR PERFORMED BY ANY PERSON SUBJECT TO ITS
PROVISIONS. 

SERVICES RENDERED BY "BANKS, FINANCE COMPANIES, TRUST COMPANIES AND
DEPOSITORIES  ..."  THE PERSON RENDERING THE SERVICES "SHALL BE LIABLE
AND RESPONSIBLE FOR THE PAYMENT OF THE ENTIRE AMOUNT  ..."  SEC. 6.  HE
IS REQUIRED TO REMIT ALL TAXES COLLECTED AND DUE THE STATE FROM HIM TO
THE TREASURER LESS THREE PER CENT TO COVER THE EXPENSE OF THE SERVICE. 
UNDER SEC. 6(B) PERSONS RENDERING OR PERFORMING THE SERVICES ARE
REQUIRED "AS FAR AS PRACTICABLE, (TO) ADD THE TAX IMPOSED  ...  TO THE
VALUE OF SERVICES OR CHARGES SHOWING SUCH TAX AS A SEPARATE AND
DISTINCT ITEM AND WHEN ADDED SUCH TAX SHALL CONSTITUTE A PART OF SUCH
VALUE OF SERVICE OR CHARGE, SHALL BE A DEBT FROM THE USER TO THE PERSON
RENDERING OR PERFORMING SERVICE UNTIL PAID, AND SHALL BE RECOVERABLE AT
LAW IN THE SAME MANNER AS OTHER DEBTS."  BY SUBSECTION (D) THE PERSON
RENDERING THE SERVICE IS FORBIDDEN TO HOLD OUT DIRECTLY OR INDIRECTLY
THAT HE WILL ASSUME OR ABSORB THE TAX.  BY SEC. 7 THE USER MAY RECOVER
ILLEGALLY COLLECTED TAXES.  WHERE SERVICES ARE RENDERED WHICH BECOME A
PART OF AN ARTICLE SUBJECT TO A SALES TAX, THE SERVICES ARE EXEMPT AND
THE PERSON PERFORMING THE SERVICE RECOVERS WHERE THEY ARE ILLEGALLY
ASSESSED.  SEC. 3.  BY SEC. 12, ALL SUMS PAID BY THE USER AS TAXES ARE
PUBLIC MONEY AND TRUST FUNDS OF THE STATE OF COLORADO.  IT IS MADE A
MISDEMEANOR, SEC. 17, FOR ANY PERSON RENDERING OR PERFORMING SERVICES
TO REFUSE TO MAKE THE RETURNS REQUIRED.  THE STATE TREASURER IS MADE
ADMINISTRATOR OF THE ACT AND GIVEN AUTHORITY TO ISSUE REGULATIONS. 
SEC. 19.  THE USUAL SEPARABILITY CLAUSE IS CONTAINED IN THE ACT.  SEC.
22. 

THE DEFINITIONS OF THE ACT APPEAR IN SEC. 2.  BY ITS SUBSECTION (C)
THE TERM "SERVICES RENDERED OR PERFORMED" IS DEFINED AS THOSE RENDERED
FOR A VALUABLE CONSIDERATION BY A PERSON COVERED BY THE ACT FOR THE
ULTIMATE USER THEREOF. 

"THE TERM 'USER' SHALL MEAN THE PERSON FOR WHOM OR FOR WHOSE BENEFIT
SERVICES ARE RENDERED OR PERFORMED."  BY SUBSECTION (E) TAXPAYER IS
DEFINED AS "ANY PERSON OBLIGATED TO ACCOUNT TO THE STATE TREASURER FOR
TAXES COLLECTED OR TO BE COLLECTED OR DUE THE STATE UNDER THE TERMS OF
THIS ACT."  SUBSECTION (H) PROVIDES FOR A CREDIT ON FUTURE TAXES OF A
TAX PAID ON ACCOUNTS EVENTUALLY FOUND WORTHLESS. 

UNDER THE RULES AND REGULATIONS ISSUED BY THE TREASURER ON THE PUBLIC
REVENUE SERVICE TAX ACT, THE SERVICE TAX IS CONSTRUED AS INVALID AS
APPLIED TO SO-CALLED BANKING SERVICES.  FN2 

UNDER RULE 27, HOWEVER, SUCH SERVICE AS THE FURNISHING OF SAFETY
VAULTS BY DEPOSITORIES OR BANKS IS HELD TO COME WITHIN THE ACT, AND THE
TWO PER CENT TAX APPLIES TO THE CHARGES MADE FOR THIS SERVICE.  THESE
REGULATIONS WERE APPROVED BY THE JUDGMENT AND DECREE OF THE TRIAL COURT
AND THAT JUDGMENT WAS AFFIRMED IN ALL PARTICULARS BY THE SUPREME COURT
OF COLORADO. 

WHILE SEC. 4(A) MAKES IT UNLAWFUL FOR ANY PERSON TO RENDER THE
DEFINED SERVICES WITHOUT "FIRST HAVING OBTAINED A LICENSE THEREFOR,"
THE TREASURER DEMANDS NO LICENSE FEES FROM A NATIONAL BANK.  SUCH
EXCEPTION WAS HELD PROPER BY THE LOWER COURT.  FN3 

THE APPELLANT HERE, THE COLORADO NATIONAL BANK, WAS A NATIONAL
BANKING CORPORATION DULY ORGANIZED AND EXISTING UNDER THE NATIONAL
BANKING ACT.  THE BANK OPERATED A SAFE-DEPOSIT SERVICE UNDER ITS OWN
NAME AND IN THE BUILDING AND VAULTS USED FOR ITS OTHER BANKING
ACTIVITIES.  THE RENTALS RECEIVED FOR THE USE OF THAT PORTION OF ITS
VAULTS UTILIZED FOR SAFE-DEPOSIT BOXES WERE REPORTED TO THE COMPTROLLER
OF THE CURRENCY AS INCOME IN THE BANK; THE FIXTURES EMPLOYED IN THE
BUSINESS ARE PART OF THE ASSETS OF THE BANK AND ARE SUPERVISED BY THE
COMPTROLLER OF THE CURRENCY. 

THE APPELLEE BEDFORD, AS TREASURER OF THE STATE OF COLORADO AND
ADMINISTRATOR OF THE SERVICE TAX ACT, DEMANDED PAYMENT FROM APPELLANT
BANK OF TWO PER CENT OF THE VALUE OF THE SERVICES RENDERED BY THE BANK
TO ITS SAFE DEPOSIT BOX CUSTOMERS.  THE BANK REFUSED PAYMENT AND THE
TREASURER BROUGHT THIS ACTION UNDER THE UNIFORM DECLARATORY JUDGMENTS
ACT (COLORADO STAT. ANNO., 1935, C. 93, SECS. 78-79) FOR A DECLARATION
OF RIGHTS TO THE EFFECT THAT THE SERVICES PERFORMED BY THE BANK ARE
TAXABLE PURSUANT TO THE SERVICE TAX ACT.  THE BANK ANSWERED CLAIMING
THE STATE STATUTE AS APPLIED TO IT WAS REPUGNANT TO THE CONSTITUTION
AND LAWS OF THE UNITED STATES; SETTING UP THE IMMUNITY OF NATIONAL
BANKS FROM STATE TAXATION EXCEPT AS PERMITTED BY R.S. SEC. 5219; FN4
CLAIMING THAT THE SAFE-DEPOSIT BUSINESS OF NATIONAL BANKS WAS
AUTHORIZED BY CONGRESS AND THEREFORE WAS PART OF ITS FEDERALLY
AUTHORIZED BUSINESS, IMMUNE FROM TAXATION WHETHER THE BANK OR THE USER
OF ITS SERVICES IS THE TAXPAYER.  THE BANK FURTHER CONTENDED THAT EVEN
THOUGH IT IS NOT THE TAXPAYER AND THE TAX BURDEN AS SUCH IS NOT
UNLAWFUL, THE BURDEN OF COLLECTION, REPORT AND VISITATION MATERIALLY
INTERFERE WITH THE PERFORMANCE OF ITS NATIONAL BANKING FUNCTIONS.  A
GENERAL DEMURRER TO THE ANSWER WAS FILED. 

THE TRIAL COURT SUSTAINED THE BANK.  THE SUPREME COURT FIRST AFFIRMED
BY AN EQUALLY DIVIDED COURT AND THEN ON REHEARING REVERSED  FN5  AND
REMANDED THE CASE TO THE DISTRICT COURT.  THE TRIAL COURT ENTERED A
SECOND JUDGMENT DECLARING AS PRAYED BY THE TREASURER WHICH JUDGMENT WAS
AFFIRMED BY THE SUPREME COURT ON THE AUTHORITY OF THE FORMER DECISION. 

(1)  THIS APPEAL IS HERE UNDER SEC. 237(A) OF THE JUDICIAL CODE.  THE
TREASURER MAKES THE POINT THAT AS THE FEDERAL QUESTION RAISED WAS THE
IMMUNITY TO THE EXACTION OF THE BANK AS A FEDERAL INSTRUMENTALITY
WITHDRAWN FROM STATE TAXATION BY CONGRESSIONAL ACTION, THE
DETERMINATION THAT THE TAX WAS ON A NON-BANKING ACTIVITY FOREIGN TO ITS
FEDERAL CHARACTER AND ON THE USER OF THE SERVICES ELIMINATED THE
NECESSITY OF A DECISION ON THE FEDERAL QUESTION.  AS THE STATUTE WAS
HELD VALID AFTER THE CONCLUSION OF THE SUPREME COURT OF COLORADO THAT
THE MANNER OF STATE TAXATION OF NATIONAL BANKS MUST ACCORD WITH R.S.
SEC. 5219 AND MUST NOT INTERFERE WITH FEDERAL FUNCTIONS,  FN6 IT SEEMS
CLEAR THE FEDERAL QUESTION AS TO THE VALIDITY OF THE STATUTE AS TESTED
BY THE CONSTITUTION AND LAWS OF THE UNITED STATES WAS NECESSARILY
INVOLVED AND DECIDED.  THIS GIVES THIS COURT JURISDICTION OF THE
APPEAL.  FN7 

GULLY V. FIRST NATIONAL BANK,  FN8  RELIED UPON BY THE TREASURER,
DEALT WITH THE RIGHT TO REMOVE TO A FEDERAL COURT  FN9  BECAUSE THE
CAUSE OF ACTION AROSE UNDER THE FEDERAL LAWS,  FN10  BUT THE ISSUE HERE
IS THE RIGHT TO APPEAL WHERE A STATE STATUTE IS HELD VALID AGAINST A
DEFENSE OF REPUGNANCY TO THE SAME LAWS.  FN11  THE DIFFERENCE IS
BROUGHT OUT IN THE GULLY CASE, WHERE IT IS SAID:  "IF THERE WERE NO
FEDERAL LAW PERMITTING THE TAXATION OF SHARES IN NATIONAL BANKS, A SUIT
TO RECOVER SUCH A TAX WOULD NOT BE ONE ARISING UNDER THE CONSTITUTION
OF THE UNITED STATES, THOUGH THE BANK WOULD HAVE THE AID OF THE
CONSTITUTION WHEN IT CAME TO ITS DEFENSE."  FN12 

(2)  THE GENESIS OF THE PRESENT SYSTEM OF NATIONAL BANKS IS THE
NATIONAL BANK ACT OF JUNE 3, 1864.  FN13  IT WAS CALLED "AN ACT TO
PROVIDE A NATIONAL CURRENCY, SECURED BY A PLEDGE OF UNITED STATES BONDS
AND TO PROVIDE FOR THE CIRCULATION AND REDEMPTION THEREOF."  FROM THIS
ACT, CORRELATED WITH THE FEDERAL RESERVE ACT,  FN14  THERE HAS
DEVELOPED THE PRESENT NATIONWIDE BANKING FACILITIES.  R.S. SEC. 5153
MAKES THESE ASSOCIATIONS THE DEPOSITORIES OF PUBLIC MONEY.  THOUGH THE
NATIONAL BANKS' USEFULNESS AS AN AGENCY TO PROVIDE FOR CURRENCY HAS
DIMINISHED MARKEDLY, THEIR IMPORTANCE AS GENERAL BANKERS SHOWS A
CONSTANT GROWTH.  FN15  WE MAY ASSUME THAT NATIONAL BANKS POSSESS ONLY
THE POWERS CONFERRED BY CONGRESS.  FN16  THESE ARE SET OUT IN R.S. SEC.
5136 AS FREQUENTLY AMENDED AND INCLUDE "ALL SUCH INCIDENTAL POWERS AS
SHALL BE NECESSARY TO CARRY ON THE BUSINESS OF BANKING," WITH THE
PROVISO "THAT IN CARRYING ON THE BUSINESS COMMONLY KNOWN AS THE SAFE
DEPOSIT BUSINESS THE ASSOCIATION SHALL NOT INVEST IN THE CAPITAL STOCK
OF A CORPORATION ORGANIZED UNDER THE LAW OF ANY STATE TO CONDUCT A SAFE
DEPOSIT BUSINESS IN AN AMOUNT IN EXCESS OF 15 PER CENTUM OF THE CAPITAL
STOCK OF THE ASSOCIATION ACTUALLY PAID IN AND UNIMPAIRED AND 15 PER
CENTUM OF ITS UNIMPAIRED SURPLUS."  FN17  WE HAVE RECENTLY FOUND THE
AUTHORITY TO SECURE FEDERAL FUNDS WITHIN THESE INCIDENTAL POWERS,
COUPLED WITH A LONG CONTINUED PRACTICE RECOGNIZED BY THE COMPTROLLER OF
THE CURRENCY.  FN18  THE RIGHT TO ACCEPT SPECIAL DEPOSITS IS RECOGNIZED
BY THE BANKING ACT.  FN19  THESE ARE MONIES AND OTHER VALUABLES THE
IDENTICAL DEPOSITS OF WHICH ARE KEPT, PRESERVED AND RETURNED IN KIND. 
IT DIFFERS LITTLE IF AT ALL FROM A SAFE-DEPOSIT BUSINESS.  THE LANGUAGE
OF THE PROVISO OF SEC. 24, JUST QUOTED, IS THE LANGUAGE SUITABLE TO
IMPOSE RESTRICTIONS ON A RECOGNIZED POWER, NOT THE LANGUAGE THAT WOULD
BE USED IN CREATING A NEW POWER.  AS THE LIMITATION ON THE POWER TO
INVEST IN REAL ESTATE PROTECTED IN A MEASURE CUSTOMERS AND STOCKHOLDERS
FROM RISKY INVESTMENTS,  FN20  THE BANKS' OWN INVESTMENT IN SAFETY
DEPOSIT FACILITIES EVIDENTLY DID NOT SEEM TO CONGRESS TO REQUIRE THE
SAME REGULATION AS THE PURCHASE OF STOCK IN A SAFE-DEPOSIT
CORPORATION.  A SUBSIDIARY SAFE-DEPOSIT CORPORATION WOULD GIVE PRIORITY
TO THE CREDITORS OF THE SUBSIDIARY OVER THE DEPOSITORS AND OTHER
CREDITORS OF THE BANK ITSELF.  THE OBVIOUS FACT, KNOWN TO ALL, IS THAT
NATIONAL BANKS DO AND FOR MANY YEARS HAVE CARRIED ON A SAFE-DEPOSIT
BUSINESS.  STATE BANKS, QUITE USUALLY, ARE GIVEN THE POWER TO CONDUCT A
SAFE-DEPOSIT BUSINESS.  FN21  WE AGREE WITH THE APPELLANT BANK THAT
SUCH A GENERALLY ADOPTED METHOD OF SAFEGUARDING VALUABLES MUST BE
CONSIDERED A BANKING FUNCTION AUTHORIZED BY CONGRESS.  FN22 

(3)  WE MAY ASSUME, AS DID THE SUPREME COURT OF COLORADO, THAT THE
TAX IS INVALID IF LAID UPON THE BANK AS AN INSTRUMENTALITY OF
GOVERNMENT IN THE INCIDENTS REFERRED TO IN THE PRECEDING SECTION; FN23
THAT ITS BANKING OPERATIONS ARE FREE FROM STATE TAXATION EXCEPT AS
CONGRESS MAY PERMIT; FN24  THAT CONGRESS PERMITS THE TAXATION ONLY OF
SHARES AND REAL ESTATE; FN25  AND THAT CONGRESS MAY INTERVENE TO
PROTECT ITS INSTRUMENTALITIES FROM ANY OTHER TAX WHICH THREATENS THEIR
USEFULNESS.  FN26 

CONGRESS HAS NOT LEGISLATED AGAINST TAXATION OF THE CUSTOMERS OF
NATIONAL BANKS.  THIS COURT HAS APPROVED A TAX ASSESSED UPON THE
DEPOSITS OF CUSTOMERS OF NATIONAL BANKS.  FN27  BY SEC. 6 OF THE
COLORADO ACT THE "PERSON RENDERING OR PERFORMING SERVICES SHALL BE
LIABLE" FOR THE PAYMENT OF THE TAX IMPOSED.  BUT AS SUBSECTION (B) OF
THAT SAME SECTION REQUIRES THE TAX PAID TO BE ADDED TO THE CHARGES FOR
SERVICE "AS A SEPARATE AND DISTINCT ITEM" AND MAKES IT A DEBT FROM THE
USER OF THE SERVICES UNTIL PAID, THE TAX IS UPON THE USER OF THE SAFE
DEPOSIT BOXES, NOT UPON THE BANK.  FURTHERMORE, AS BY SEC. 2(H) CREDIT
IS GIVEN TO THE BANK FOR TAXES PAID ON ACCOUNTS SUBSEQUENTLY FOUND
WORTHLESS AND THE BANK IS IN A POSITION TO REQUIRE PAYMENT OF BOX
RENTALS AND TAXES IN ADVANCE, THERE IS NO OCCASION FOR A BANK EVER TO
HAVE SADDLED UPON IT ANY PART OF THE TAX BURDEN.    IN NATIONAL BANK V.
COMMONWEALTH  FN28  THIS COURT DETERMINED A SIMILAR QUESTION IN FAVOR
OF THE VALIDITY OF THE STATE TAX.  THE CASE WAS DECIDED IN 1869.  AT
THAT TIME THE APPLICABLE FEDERAL STATUTE  FN29  READ:  "SEC.  41.  ...
PROVIDED, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT ALL
THE SHARES IN ANY OF THE SAID ASSOCIATIONS, HELD BY ANY PERSON  ...
FROM BEING INCLUDED IN THE VALUATION OF THE PERSONAL PROPERTY OF SUCH
PERSON  ...  IN THE ASSESSMENT OF TAXES IMPOSED BY OR UNDER STATE
AUTHORITY AT THE PLACE WHERE SUCH BANK IS LOCATED, AND NOT ELSEWHERE. 
..." 

THE STATUTE OF KENTUCKY LAID A TAX OF FIFTY CENTS ON EACH SHARE.  THE
SAME STATUTE ENACTED: "THE CASHIER OF A BANK, WHOSE STOCK IS TAXED,
SHALL, ON THE FIRST DAY IN JULY OF EACH YEAR, PAY INTO THE TREASURY THE
AMOUNT OF TAX DUE.  IF SUCH TAX BE NOT PAID, THE CASHIER AND HIS
SURETIES SHALL BE LIABLE FOR THE SAME, AND TWENTY PER CENT. UPON THE
AMOUNT; AND THE SAID BANK OR CORPORATION SHALL THEREBY FORFEIT THE
PRIVILEGES OF ITS CHARTER." 

A NATIONAL BANK REFUSED PAYMENT ON THE GROUND THAT IT AS A BANK WAS
NOT SUBJECT TO STATE TAXATION.  IT WAS DECIDED THAT THIS WAS A TAX ON
SHARES, THAT THE STATE IN A LEGAL PROCEEDING AGAINST THE SHAREHOLDER
COULD HAVE GARNISHEED THE BANK AND THAT BECAUSE THE BANK WAS A FEDERAL
INSTRUMENTALITY WAS NO REASON FOR NOT REQUIRING IT TO COLLECT AND PAY
OVER THE MONEY FROM THE SHAREHOLDER.  A SIMILAR TAX WAS UPHELD IN DES
MOINES BANK V. FAIRWEATHER.  FN30 

THE PERSON LIABLE FOR THE TAX, PRIMARILY, CANNOT ALWAYS BE SAID TO BE
THE REAL TAXPAYER.  THE TAXPAYER IS THE PERSON ULTIMATELY LIABLE FOR
THE TAX ITSELF.  FN31  THE FUNDS WHICH WERE RECEIVED BY THE STATE CAME
FROM THE ASSETS OF THE USER, NOT FROM THOSE OF THE FEDERAL
INSTRUMENTALITY, THE BANK.  FN32  THE COLORADO SUPREME COURT HOLDS THE
USER IS THE TAXPAYER.  FN33  THE DETERMINATION OF THE STATE COURT AS TO
THE INCIDENCE OF THE TAX HAS GREAT WEIGHT WITH US AND, WHEN IT FOLLOWS
LOGICALLY THE LANGUAGE OF THE ACT, AS HERE, IS CONTROLLING.  FN34  AS
THE USER DIRECTLY FURNISHES THE FUNDS FOR THE TAX, NOT AS AN ULTIMATE
CONSUMER WITH A TRANSFERRED BURDEN BUT BY SEC. 12 OF THE ACT AS THE
RESPONSIBLE OBLIGOR, WE CONCLUDE THE TAX IS UPON HIM, NOT UPON THE
BANK.  THE CONSTITUTION OR LAWS OF THE UNITED STATES DO NOT FORBID SUCH
A TAX. 

(4)  THE TAX BEING A PERMISSIBLE TAX ON CUSTOMERS OF THE BANK, IT IS
SETTLED BY OUR PRIOR DECISIONS THAT THE STATUTORY PROVISIONS REQUIRING
COLLECTION AND REMISSION OF THE TAXES DO NOT IMPOSE AN UNCONSTITUTIONAL
BURDEN ON A FEDERAL INSTRUMENTALITY.  FN35 ESPECIALLY IS THIS TRUE
SINCE THE BANK UNDER THE COLORADO ACT IS ALLOWED THREE PER CENT OF THE
TAX FOR THE FINANCIAL BURDEN PUT UPON IT BY THE OBLIGATION TO COLLECT. 
AFFIRMED. 

FN1  SESSION LAWS OF COLORADO, 1937, C. 240, P. 1144.  THE ACT WAS
AMENDED AND REENACTED MAY 1, 1939.  SESSION LAWS OF COLORADO, 1939, C.
158, P. 526.  THIS LATER ACT IS NOT MATERIAL IN THIS APPEAL. 

FN2  RULES AND REGULATIONS, PUBLIC REVENUE SERVICE TAX ACT OF 1937,
NO. 10, REPUBLISHED OCTOBER 27, 1937. 

FN3  BEDFORD V. COLORADO BANK, 104 COLO. 311, 315; 91 P.2D 469. 

FN4 12 U.S.C. SEC. 548. 

"THE LEGISLATURE OF EACH STATE MAY DETERMINE AND DIRECT, SUBJECT TO
THE PROVISIONS OF THIS SECTION, THE MANNER AND PLACE OF TAXING ALL THE
SHARES OF NATIONAL BANKING ASSOCIATIONS LOCATED WITHIN ITS LIMITS.  THE
SEVERAL STATES MAY (1) TAX SAID SHARES, OR (2) INCLUDE DIVIDENDS
DERIVED THEREFROM IN THE TAXABLE INCOME OF AN OWNER OR HOLDER THEREOF,
OR (3) TAX SUCH ASSOCIATIONS ON THEIR NET INCOME, OR (4) ACCORDING TO
OR MEASURED BY THEIR NET INCOME, PROVIDED THE FOLLOWING CONDITIONS ARE
COMPLIED WITH: 

"1.  (A)  THE IMPOSITION BY ANY STATE OF ANY ONE OF THE ABOVE FOUR
FORMS OF TAXATION SHALL BE IN LIEU OF THE OTHERS, EXCEPT AS HEREINAFTER
PROVIDED IN SUBDIVISION (C) OF THIS CLAUSE." 

FN5  BEDFORD V. COLORADO BANK, SUPRA. 

FN6  IBID. 

FN7  CALIFORNIA POWDER WORKS V. DAVIS, 151 U.S. 389, 393; INDIANA EX
REL. ANDERSON V. BRAND, 303 U.S. 95, 98; CF. OWENSBORO NATIONAL BANK V.
OWENSBORO, 173 U.S. 664; CLEMENT NATIONAL BANK V. VERMONT, 231 U.S.
120; FEDERAL LAND BANK V. CROSLAND, 261 U.S. 374. 

FN8  299 U.S. 109. 

FN9  JUDICIAL CODE, SEC. 28. 

FN10  JUDICIAL CODE, SEC. 24. 

FN11  JUDICIAL CODE, 237(A). 

FN12  299 U.S. AT 115. 

FN13  13 STAT. 99, 100. 

FN14  38 STAT. 251. 

FN15  APRIL 6, 1940, TREASURY DAILY STATEMENT SHOWS $172,081,172 IN
NATIONAL BANK NOTES OUTSTANDING ON MARCH 1, 1940.  COMPARE WITH
$1,122,452,661 OUTSTANDING OCTOBER 31, 1914.  REPORT OF THE COMPTROLLER
OF CURRENCY, 1935, P. 833.  ON MARCH 1, 1940, THERE WAS OUTSTANDING
OVER $5,000,000,000 IN FEDERAL RESERVE NOTES. 

THE NUMBER OF NATIONAL BANKS AS OF OCTOBER 31, 1938, IS 5247, CAPITAL
ACCOUNTS (CAPITAL SURPLUS AND UNDIVIDED PROFITS) $3,305,575,000, AND
DEPOSITS $27,103,881,000.  REPORT OF THE COMPTROLLER OF THE CURRENCY,
1938. 

FN16  TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245, 253; MARION
V. SNEEDEN, 291 U.S. 262. 

FN17  12 U.S.C. SEC. 24. 

FN18  INLAND WATERWAYS CORPORATION V. YOUNG, 309 U.S. 517. 

FN19  R.S. 5228, 12 U.S.C. SEC. 133. 

FN20  12 U.S.C. SEC. 29: 

"A NATIONAL BANKING ASSOCIATION MAY PURCHASE, HOLD, AND CONVEY REAL
ESTATE FOR THE FOLLOWING PURPOSES, AND FOR NO OTHERS: 

"FIRST.  SUCH AS SHALL BE NECESSARY FOR ITS ACCOMMODATION IN THE
TRANSACTION OF ITS BUSINESS." 

FN21  PATON'S DIGEST, 1926, VOL. 2, P. 2246, LISTS 24 STATES AND
TERRITORIES WHICH AUTHORIZE THEIR BANKS TO CONDUCT A SAFE-DEPOSIT
BUSINESS.  FOR EXAMPLE, MAINE, ACT OF 1923, C. 144, SEC. 6, (V),
AUTHORIZES SAVINGS BANKS TO "OWN, MAINTAIN AND LET SAFE DEPOSIT BOXES
AND VAULTS."  OHIO, GEN. CODE (1921), SEC. 710-109, EMPOWERS BANKS TO
LET OUT SAFE-DEPOSIT BOXES.  CALIFORNIA, GEN. LAWS (1923), ACT 652,
SEC. 30, ANY BANK MAY CONDUCT A SAFE-DEPOSIT DEPARTMENT, BUT SHALL NOT
INVEST MORE THAN ONE TENTH OF ITS CAPITAL AND SURPLUS IN SUCH SAFE
DEPOSIT DEPARTMENT. 

FN22  THE LANGUAGE OF THE PROVISO FIRST APPEARED IN AN ACT TO FURTHER
AMEND THE NATIONAL BANKING LAWS OF THE FEDERAL RESERVE ACT ENACTED
FEBRUARY 25, 1927, 44 STAT. 1224, SEC. 2(B).  ONLY IMMATERIAL VERBAL
CHANGES HAVE OCCURRED SINCE THE FIRST ADOPTION. 

REFERRING TO THIS PROVISO THE HOUSE REPORT SAID:  "THE SECOND PROVISO
REGULATES THE SAFE-DEPOSIT BUSINESS OF NATIONAL BANKS AND PROHIBITS
THEM FROM INVESTING AN AMOUNT IN EXCESS OF 15 PER CENT OF CAPITAL AND
SURPLUS IN A CORPORATION ORGANIZED TO CONDUCT A SAFE-DEPOSIT BUSINESS
IN CONNECTION WITH THE BANK.  THIS IS A BUSINESS WHICH IS REGULARLY
CARRIED ON BY NATIONAL BANKS AND THE EFFECT OF THIS PROVISION IS ALSO
PRIMARILY REGULATIVE."  H. REP. NO. 83, 69TH CONG., 1ST SESS., P. 4. 

FN23  CF. OSBORN V. U.S. BANK, 9 WHEAT.  738, 862; OWENSBORO NATIONAL
BANK V. OWENSBORO, 173 U.S. 664, 668; BANK OF CALIFORNIA V. RICHARDSON,
248 U.S. 476, 483.  ALSO SMITH V. KANSAS CITY TITLE CO., 255 U.S. 180,
212. 

FN24  FARMERS' & MECHANICS' NATIONAL BANK V. DEARING, 91 U.S. 29;
EASTON V. IOWA, 188 U.S. 220; FIRST NATIONAL BANK V. CALIFORNIA, 262
U.S. 366 

FN25  R.S. SEC. 5219; OWENSBORO NATIONAL BANK V. OWENSBORO, 173 U.S.
664, 668, 676. 

FN26  PITTMAN V. HOME OWNERS' LOAN CORP., 308 U.S. 21, AND CASES
CITED; JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 160; FIRST
NATIONAL BANK V. MISSOURI, 263 U.S. 640, 656. 

FN27  CLEMENT NATIONAL BANK V. VERMONT, 231 U.S. 120, 133. 

FN28  9 WALL.  353. 

FN29  13 STAT. 111. 

FN30  263 U.S. 103, 111; CF. GULLY V. FIRST NATIONAL BANK, 299 U.S.
109, 116. 

FN31  STAHMANN V. VIDAL, 305 U.S. 61. 

FN32  HELVERING V. THERRELL, 303 U.S. 218, 225. 

FN33  BEDFORD V. COLORADO BANK, 104 COLO. 311, 319; 91 P.2D 469; CF.
BEDFORD V. HARTMAN BROTHERS, 104 COLO. 190, 194; 89 P.2D 584. 

FN34  CLEMENT NATIONAL BANK V. VERMONT, 231 U.S. 120, 134. 

FN35  NATIONAL BANK V. COMMONWEALTH, 9 WALL.  353; DES MOINES BANK V.
FAIRWEATHER, 263 U.S. 103, 111; CF. WAITE V. DOWLEY, 94 U.S. 527;
MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, 93; CODE OF IOWA, 1931, SEC.
5093A (5); FELT & TARRANT CO. V. GALLAGHER, 306 U.S. 62, 68; MCGOLDRICK
V. BERWIND-WHITE COAL CO., 309 U.S. 33. 
..END :



OSBORN V. OZLIN, 310 U.S. 53 


NO. 592.  ARGUED MARCH 27, 1940.  - DECIDED APRIL 22, 1940.  - 29
F.SUPP.  71, AFFIRMED. 


AS TO CASUALTY AND SURETY RISKS IN VIRGINIA, INSURED AGAINST BY
CORPORATIONS AUTHORIZED TO DO BUSINESS IN THAT STATE, A VIRGINIA LAW
REQUIRES THAT THE INSURANCE SHALL BE "THROUGH REGULARLY CONSTITUTED AND
REGISTERED RESIDENT AGENTS OR AGENCIES OF SUCH COMPANIES"; AND THAT
SUCH RESIDENT AGENTS SHALL RECEIVE "THE USUAL AND CUSTOMARY COMMISSIONS
ALLOWED ON SUCH CONTRACTS," AND MAY NOT SHARE MORE THAN ONE-HALF OF A
COMMISSION WITH A NON-RESIDENT LICENSED BROKER.  HELD: 

1.  THAT THE REGULATION IS CONSTITUTIONALLY WITHIN THE POWER OF THE
STATE, EVEN THOUGH ONE EFFECT OF IT MAY BE TO INCREASE THE COST OF
"MASTER" POLICIES NEGOTIATED BY BROKERS IN OTHER STATES, THROUGH WHICH
AN ASSURED MAY OBTAIN A REDUCED RATE AND COMMISSION BY POOLING ALL OF
HIS RISKS, IN AND OUT OF VIRGINIA, IN ONE CONTRACT.  PP. 62-65. 

2.  AS A BASIS FOR THIS LEGISLATION, THE LEGISLATURE WAS ENTITLED TO
ACT ON THE BELIEF, 

(1)  THAT, BY REQUIRING PARTICIPATION BY RESPONSIBLE RESIDENT AGENTS,
IT WOULD LESSEN THE DIFFICULTY OF ENFORCING THE VIRGINIA SYSTEM OF
INSURANCE REGULATION AND DETECT UNLAWFUL REBATING.  P. 63. 

(2)  THAT THE LIMITATION ON SHARING OF AGENTS' COMMISSIONS WOULD
ASSURE THE USE OF RESIDENT AGENTS FOR THE PROCURING AND "SERVICING" OF
POLICIES COVERING LOCAL RISKS - FUNCTIONS WHICH, WHEN ADEQUATELY
PERFORMED, BENEFIT THE COMPANY, THE PRODUCER, AND THE ASSURED, AND, BY
MINIMIZING THE RISKS OF CASUALTY AND LOSS, REDOUND TO THE BENEFIT OF
THE COMMUNITY.  P. 64. 

(3)  THAT THE AGENCY SYSTEM IN VIEW IS BETTER CALCULATED TO FURTHER
THESE ENDS THAN OTHER MODES OF "PRODUCTION."  P. 64. 

3.  THE REGULATIONS ARE WELL WITHIN THE POWER OF THE STATE OVER
INSURANCE AGAINST LOCAL RISKS.  P. 66. 

OSBORN ET AL. V. OZLIN ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF VIRGINIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES DISMISSING
A BILL TO ENJOIN THE ENFORCEMENT OF A STATUTE REGULATING INSURANCE IN
VIRGINIA. 

A STATE CONSTITUTIONALLY MAY NOT REGULATE OR PENALIZE THE MAKING,
BEYOND ITS BORDERS, OF CONTRACTS OF INSURANCE OR SURETY UPON PERSONS OR
PROPERTY LOCATED WITHIN THE STATE.  HARTFORD ACCIDENT & INDEMNITY CO.
V. DELTA & PINE LAND CO., 292 U.S. 143; FIDELITY & DEPOSIT CO. V.
TAFOYA, 270 U.S. 426; AETNA LIFE INS. CO. V. DUNKEN, 266 U.S. 389; ST.
LOUIS COTTON COMPRESS CO. V. ARKANSAS, 260 U.S. 346; ALLGEYER V.
LOUISIANA, 165 U.S. 578.  SEE, ALSO, BOSEMAN V. CONNECTICUT GENERAL
LIFE INS. CO., 301 U.S. 196; HOME INS. CO. V. DICK, 281 U.S. 397; NEW
YORK LIFE INS. CO. V. HEAD, 234 U.S. 149.  DISTINGUISHING BOTHWELL V.
BUCKBEE, MEARS CO., 275 U.S. 274. 

UNDER THIS STATUTE NO CONTRACT OF INSURANCE COVERING RISKS IN OTHER
STATES AND INCLUDING VIRGINIA RISKS CAN BE MADE ANYWHERE EXCEPT WITHIN
THE STATE OF VIRGINIA.  SEC. 4226-A. 

THE CONTRACTS DO NOT REQUIRE OR CONTEMPLATE ANY ILLEGAL ACT WITHIN
THE STATE.  VIRGINIA HAS NOT ATTEMPTED EITHER TO REGULATE OR PROHIBIT
THE PERFORMANCE OF SUCH CONTRACTS.  THE PLAINTIFFS ARE LICENSED TO DO
BUSINESS IN VIRGINIA, AND NO ACT OF PERFORMING OR SERVICING A CONTRACT
OF INSURANCE THEREIN IS PROHIBITED TO THEM BY ANY VIRGINIA STATUTE. 

MANY OF THE CONTRACTS ARE ACCIDENT POLICIES AND FIDELITY BONDS
SIMILAR TO THE CONTRACTS CONSIDERED IN THE BOSEMAN AND DELTA & PINE
LAND CASES, SUPRA.  THESE NEITHER REQUIRE NOR CONTEMPLATE PERFORMANCE
OR SERVICE IN VIRGINIA.  YET THE STATUTE MAKES NO DISTINCTION BETWEEN
THESE AND OTHERS, SUCH AS WORKMEN'S COMPENSATION POLICIES, WHICH DO
CALL FOR SERVICE WITHIN THE STATE.  IT IS NOT PERFORMANCE AND SERVICE
WITHIN THE STATE WHICH VIRGINIA ATTEMPTS TO REGULATE AND THE STATUTE IS
NOT TO BE JUSTIFIED ON THE ASSERTED BASIS OF ASSISTANCE OF SUCH
REGULATION. 

DISTINGUISHING TAX CASES:  EQUITABLE LIFE ASSUR.  SOCIETY V.
PENNSYLVANIA, 238 U.S. 143 AND COMPANIA GENERAL DE TABACOS V.
COLLECTOR, 275 U.S. 87.  CF., GREAT ATLANTIC & PACIFIC TEA CO. V.
GROSJEAN, 301 U.S. 412. 

IT IS APPARENT FROM SECS. 4226(A) AND 4222(A) THAT PLAINTIFFS' AGENTS
WHO ARE NON-RESIDENTS OF VIRGINIA AND WHO ARE COMPENSATED BY
COMMISSIONS FALL WITHIN THE STATUTORY DEFINITION OF NON-RESIDENT
BROKERS, AND THAT, TAKEN TOGETHER, THESE SECTIONS OF THE STATUTE
ATTEMPT TO PROHIBIT THE PLAINTIFFS FROM ISSUING CONTRACTS PRODUCED
OUTSIDE THE STATE BY THE PLAINTIFFS' AGENTS DULY AUTHORIZED AND
APPOINTED IN THE STATE WHERE LICENSED, UNLESS SUCH AGENT BE ALSO
LICENSED BY VIRGINIA AFTER THE PAYMENT OF A TAX. 

IN THUS REGULATING AND PRESCRIBING THE PERSONS WHOM THE PLAINTIFFS
MAY SELECT AND APPOINT TO REPRESENT THEM IN OTHER STATES, AND IN
PROHIBITING THE PLAINTIFFS FROM MAKING CONTRACTS OF INSURANCE OR SURETY
PRODUCED BY THEIR AGENTS IN OTHER STATES UNLESS SUCH AGENTS SHALL HAVE
BEEN LICENSED BY VIRGINIA, THAT STATE IS GIVING TO ITS LAWS EXTRA
TERRITORIAL OPERATION, AND IS DENYING TO THE PLAINTIFFS DUE PROCESS OF
LAW.  FIDELITY & DEPOSIT CO. V. TAFOYA, 270 U.S. 426. 

IF THE BUSINESS HAS BEEN PRODUCED BY AN OUT-OF-STATE AGENT OR BROKER
WHO HAS BEEN LICENSED BY THE STATE OF VIRGINIA, THE RESIDENT AGENT MAY,
IN HIS DISCRETION, PAY TO THE ACTUAL PRODUCER AN AMOUNT NOT EXCEEDING
50% OF THE COMPENSATION RECEIVED BY HIM.  IT FOLLOWS THAT IF THE OUT-OF
STATE PRODUCER HAS NOT BEEN LICENSED BY THE STATE OF VIRGINIA, THE
RESIDENT AGENT CAN NOT MAKE ANY PAYMENT TO HIM.  THUS THE QUESTION OF
WHETHER THE RESIDENT AGENT IS TO RECEIVE THE FULL COMMISSIONS OR ONLY
50% OF THEM IS TO BE DETERMINED NOT BY THE AMOUNT OR VALUE OF HIS
SERVICES, BUT BY THE ADVENTITIOUS AND UNRELATED QUESTION OF WHETHER THE
OUT-OF-STATE PRODUCER WHO BROUGHT THE BUSINESS TO THE COMPANY WAS OR
WAS NOT LICENSED BY THE STATE OF VIRGINIA.  IN THE ABSENCE OF A
STATUTORY PROVISION IMPOSING ANY DUTIES OR RESPONSIBILITIES UPON THE
RESIDENT AGENT, THIS REQUIREMENT IS UNCONSTITUTIONAL.  THERE IS NO
RELATIONSHIP BETWEEN THE AMOUNT OF THE REQUIRED COMPENSATION AND THE
VALUE OF THE SERVICES CERTAIN TO BE RENDERED BY THE RECIPIENT TO THE
CORPORATION WHICH IS REQUIRED TO MAKE THE PAYMENTS.  CF., WEST COAST
HOTEL CO. V. PARRISH, 300 U.S. 379, 396; MOREHEAD V. NEW YORK, 298 U.S.
587, 622-623; NEW YORK LIFE INS. CO. V. DODGE, 246 U.S. 357, 382.  FOR
THE SIMPLE TASK OF COUNTERSIGNING - WRITING HIS NAME - HE RECEIVES THE
STATUTORY COMPENSATION.  AND THE TASK WHICH HE MUST PERFORM THE COURT
BELOW CHARACTERIZED - AND THE CHARACTERIZATION CAN HARDLY BE DISPUTED -
AS PERFUNCTORY. 

THE UNCONTRADICTED TESTIMONY SHOWS THAT THE AMOUNT OF COMPENSATION
WHICH THE STATUTE REQUIRES WILL BE GROSSLY EXCESSIVE. 

THERE CAN BE NO JUSTIFICATION FOR SUCH A STATUTE ARBITRARILY
REQUIRING EXCESSIVE PAYMENTS TO BE MADE IN RETURN FOR THE POSSIBILITY
OF SOME SERVICES BEING RENDERED, HIGHLY SPECULATIVE IN CHARACTER AND
WHOLLY UNDESIRED. 

NOTHING IN O'GORMAN & YOUNG, INC. V. HARTFORD FIRE INS. CO., 282 U.S.
251, SUPPORTS A STATUTE REQUIRING LARGE PAYMENTS, ARBITRARY IN AMOUNT,
TO BE PAID BY THE CORPORATE PLAINTIFFS TO AGENTS FOR PROBLEMATICAL
SERVICES,  - PARTICULARLY WHERE THE PAYMENTS, AS THE COURT BELOW FOUND,
WILL INEVITABLY INCREASE THE EXPENSES OF THE INSURANCE COMPANIES AND
THE COST OF INSURANCE TO THE PUBLIC.  THE FOURTEENTH AMENDMENT OPERATES
TO PROHIBIT THE BOLD EXPROPRIATION OF PROPERTY BY A STATE. 

THE PROHIBITION OF SEC. 4222(A) AGAINST SALARIED AGENTS
COUNTERSIGNING DEPRIVES THE CORPORATE PLAINTIFFS OF THEIR PROPERTY AND
THE INDIVIDUAL PLAINTIFFS OF THEIR LIBERTY AND PROPERTY WITHOUT DUE
PROCESS OF LAW AND DENIES THE INDIVIDUAL PLAINTIFFS THE EQUAL
PROTECTION OF THE LAWS AND IS THEREFORE UNCONSTITUTIONAL AND VOID. 
SMITH V. TEXAS, 233 U.S. 630; LOUISVILLE GAS & ELECTRIC CO. V. COLEMAN,
277 U.S. 32. 

THE INDIVIDUAL PLAINTIFFS WERE, PRIOR TO JUNE 21, 1938, LICENSED
INSURANCE AGENTS IN VIRGINIA AND THE ONLY REASON THEY ARE NOT NOW SO
LICENSED IS BECAUSE THEY ARE SALARIED EMPLOYEES. 

THE REGULATIONS ARE RESTRICTED TO ACTS OF THE INSURANCE COMPANY AND
ITS AGENTS PERFORMED WITHIN THE STATE, PURSUANT TO AND AS A CONSEQUENCE
OF THE NEGOTIATION OF THE CONTRACT OUTSIDE OF THE STATE. 

THE FACT THAT A VIRGINIA CONTRACT IS NEGOTIATED AND MADE OUTSIDE THE
STATE DOES NOT IMPAIR VIRGINIA'S JURISDICTION TO REGULATE THE INSURANCE
COMPANY'S ACTS AND TRANSACTIONS WITHIN THE STATE IN CONNECTION WITH OR
PURSUANT TO SUCH CONTRACT. 

ALL CASUALTY AND SURETY POLICIES AND CONTRACTS COVERING VIRGINIA
RISKS REQUIRE OR CONTEMPLATE ACTS OF PERFORMANCE IN VIRGINIA. 

THE MAKING OUTSIDE OF VIRGINIA OF AN INSURANCE CONTRACT WHICH
CONTEMPLATES, REQUIRES, OR PERMITS THE DOING BY THE INSURANCE COMPANY
OF ACTS IN VIRGINIA, CONSTITUTES, AS A MATTER OF LAW, AN EXERCISE OF
THE PRIVILEGE OF DOING AN INSURANCE BUSINESS IN VIRGINIA. 

THE MAKING OUTSIDE OF VIRGINIA OF A CONTRACT OF INSURANCE INVOLVING
AN EXERCISE OF A FOREIGN INSURANCE COMPANY'S LICENSE RIGHT OR PRIVILEGE
OF DOING BUSINESS IN VIRGINIA, BRINGS THE CONTRACT WITHIN THE
JURISDICTION AND REGULATORY POLICE POWER OF VIRGNIA. 

VIRGINIA MAY PROHIBIT THE DOING IN VIRGINIA BY AN INSURANCE COMPANY
LICENSEE OF ANY ACT IN CONNECTION WITH OR IN THE PERFORMANCE OF A
VIRGNIA CONTRACT MADE BY IT OUTSIDE THE STATE IN VIOLATION OF VIRGINIA
LAWS, BY THE IMPOSITION OF A FINE OR BY REVOCATION OF SAID COMPANY'S
LICENSE TO DO BUSINESS IN THE STATE BECAUSE OF MAKING SUCH CONTRACT IN
VIOLATION OF HER LAWS. 

THE OBJECTS AND PURPOSES SOUGHT TO BE ATTAINED BY THE CHALLENGED
LEGISLATION ARE LEGITIMATE AND PROPER, AND THE MEANS EMPLOYED TO THAT
END ARE NOT ARBITRARY OR CAPRICIOUS BUT ARE REASONABLE AND
APPROPRIATELY ADAPTED THERETO. 

THE BRANCH MANAGER APPELLANTS HAVE NO STANDING IN COURT TO COMPLAIN
OF THE STATUTORY REGULATION REQUIRING INSURANCE COMPANIES TO MAKE
INSURANCE CONTRACTS THROUGH REGULARLY CONSTITUTED VIRGINIA RESIDENT
AGENTS, HAVE THEM COUNTERSIGN THE POLICIES AND PAY THEM THE USUAL
PRODUCER'S COMMISSION. 

THE STATUTORY CLASSIFICATION OF AGENTS AND EMPLOYEES OF STOCK
INSURANCE COMPANIES IS REASONABLE. 

THIS CASE IS NOT CONTROLLED BY HARTFORD STEAM BOILER CO. V. HARRISON,
301 U.S. 459. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

APPELLANTS HAVE CHALLENGED THE VALIDITY OF A VIRGINIA STATUTE
REGULATING THE INSURANCE OF VIRGINIA RISKS AND HAVE BROUGHT THIS SUIT
TO ENJOIN STATE OFFICERS FROM ENFORCING IT.  ITS RELEVANT PROVISIONS,
COPIED IN THE MARGIN,  FN1  FORBID CONTRACTS OF INSURANCE OR SURETY BY
COMPANIES AUTHORIZED TO DO BUSINESS WITHIN THAT COMMONWEALTH "EXCEPT
THROUGH REGULARLY CONSTITUTED AND REGISTERED RESIDENT AGENTS OR
AGENCIES OF SUCH COMPANIES."  SEC. 4222, C. 218, ACTS OF 1938.  SUCH
RESIDENT AGENTS "SHALL BE ENTITLED TO AND SHALL RECEIVE THE USUAL AND
CUSTOMARY COMMISSIONS ALLOWED ON SUCH CONTRACTS," AND MAY NOT SHARE
MORE THAN HALF OF THIS COMMISSION WITH A NON-RESIDENT BROKER.  SEC.
4226-A.  DISOBEDIENCE OF THESE PROVISIONS (FROM WHICH LIFE, TITLE AND
MARINE COMPANIES ARE EXEMPTED) MAY ENTAIL A FINE OR REVOCATION OF THE
CORPORATE LICENSE IN VIRGINIA, OR BOTH.  A DISTRICT COURT OF THREE
JUDGES, CONVENED UNDER SEC. 266 OF THE JUDICIAL CODE AS AMENDED, 28
U.S.C. SEC. 380, DISMISSED APPELLANTS' BILL ON THE BASIS OF ELABORATE
FINDINGS OF FACT AND CONCLUSIONS OF LAW, SET FORTH IN AN OPINION BY
CIRCUIT JUDGE SOPER.  29 F.SUPP.  71.  FROM THIS DECREE THE CASE COMES
HERE ON APPEAL UNDER SEC. 238 OF THE JUDICIAL CODE AS AMENDED, 28
U.S.C. SEC. 345. 

THE BILL WAS BROUGHT BY FOREIGN CORPORATIONS AUTHORIZED TO DO
CASUALTY AND SURETY BUSINESS IN VIRGINIA, AND BY SOME OF THEIR SALARIED
EMPLOYEES.  IT IS THEIR CLAIM THAT THE STATUTE DEPRIVES THEM OF RIGHTS
PROTECTED BY THE FOURTEENTH AMENDMENT OF THE CONSTITUTION.  THE EXACT
NATURE OF THESE CLAIMS WILL APPEAR MORE CLEARLY IN THE SETTING OF THE
ILLUMINATING FINDINGS BELOW WHICH MAY HERE BE ABBREVIATED. 

THE "PRODUCTION" OF INSURANCE - "PRODUCTION" BEING INSURANCE JARGON
FOR OBTAINING BUSINESS - IS, IN THE MAIN, CARRIED ON BY TWO GROUPS,
AGENTS AND BROKERS.  THOUGH BOTH ARE PAID BY COMMISSION, THE DIFFERENT
WAYS IN WHICH THE TWO GROUPS PERFORM THEIR FUNCTIONS HAVE IMPORTANT
PRACTICAL CONSEQUENCES IN THE CONDUCT OF THE INSURANCE BUSINESS, AND
HENCE IN ITS REGULATION.  THE AGENT IS TIED TO HIS COMPANY.  BUT HIS
ABILITY TO "PRODUCE" BUSINESS DEPENDS UPON THE CONFIDENCE OF THE
COMMUNITY IN HIM.  HE MUST THEREFORE CULTIVATE THE GOOD WILL AND SENSE
OF DEPENDENCE OF HIS CLIENTS.  HE MAY FINANCE THE PAYMENT OF PREMIUMS;
HE FREQUENTLY ASSISTS IN THE FILING AND PROSECUTION OF CLAIMS; HE ACTS
AS MEDIATOR BETWEEN INSURER AND ASSURED IN THE DIVERSE SITUATIONS WHICH
ARISE.  THE BROKER, ON THE OTHER HAND, IS AN INDEPENDENT MIDDLEMAN, NOT
TIED TO A PARTICULAR COMPANY.  HE MEETS MORE SPECIALLY THE NEEDS OF
LARGE CUSTOMERS, USING THEIR CONCENTRATED BARGAINING POWER TO OBTAIN
THE MOST FAVORABLE TERMS FROM COMPETING COMPANIES.  HIS ACTIVITIES,
BEING LARGELY CONFINED TO THE BIG COMMERCIAL CENTERS, TAKE PLACE MOSTLY
OUTSIDE VIRGINIA. 

A POLICY, WHETHER "PRODUCED" BY BROKER OR AGENT, MUST BE "SERVICED" -
AN INSURANCE TERM FOR ASSISTANCE RENDERED A CUSTOMER IN MINIMIZING HIS
RISKS.  TO THIS END THE COMPANIES EXERT THEMSELVES DIRECTLY, BUT THE
"PRODUCER" MAY RENDER ADDITIONAL SERVICE.  ONLY TO A LIMITED EXTENT CAN
RISKS BE MINIMIZED AT LONG RANGE; LOCAL ACTIVITY IS ESSENTIAL.  WHEN
THE CONTRACT IS "PRODUCED" BY A NON-RESIDENT BROKER THE "SERVICING"
FUNCTION IS NORMALLY PERFORMED BY THE COMPANY EXCLUSIVELY.  WHEN THE
"PRODUCER" IS A RESIDENT AGENT, THE CASE IS ORDINARILY OTHERWISE.  FOR
THIS, AS WELL AS FOR OTHER REASONS, IT IS OBVIOUS THAT NON-RESIDENT
BROKERS PREFER TO NEGOTIATE THEIR CONTRACTS COVERING VIRGINIA RISKS
WITH COMPANIES AUTHORIZED TO DO BUSINESS IN THAT COMMONWEALTH. 

THESE BASIC ELEMENTS IN THE INSURANCE BUSINESS ATTAIN SPECIAL
SIGNIFICANCE IN THE CASE OF ENTERPRISES OPERATING NOT ONLY IN VIRGINIA
BUT IN OTHER STATES AS WELL.  FOR THEM THE BROKERAGE SYSTEM OFFERS THE
ATTRACTIONS OF LARGE-SCALE PRODUCTION.  THROUGH WHAT IS KNOWN AS A
MASTER OR "HOTCHPOTCH" POLICY, THE ASSURED MAY OBTAIN A CHEAPER RATE BY
POOLING ALL HIS RISKS, WHETHER IN OR OUT OF VIRGINIA.  THIS WHOLESALE
INSURANCE MAY FURNISH NOT ONLY A REDUCED RATE BUT A REDUCED COMMISSION
TO THE CUSTOMER.  THESE ARE ADVANTAGES WHICH NATURALLY DRAW THE
VIRGINIA BUSINESS OF INTERSTATE ENTERPRISES AWAY FROM LOCAL AGENTS IN
VIRGINIA TO THE GREAT INSURANCE CENTERS. 

IN AFFECTING THE COST OF THESE MASTER POLICIES, SAY THE APPELLANTS,
VIRGINIA IS INTRUDING UPON BUSINESS TRANSACTIONS BEYOND ITS BORDERS. 
NOT ONLY IS A LICENSED COMPANY FORBIDDEN TO WRITE INSURANCE EXCEPT
THROUGH A RESIDENT AGENT, BUT THE AGENT CANNOT RETAIN LESS THAN ONE
HALF OF THE CUSTOMARY COMMISSION ALLOWED ON SUCH A CONTRACT FOR WHAT
MAY, SO FAR AS THE REQUIREMENTS OF THE LAW ARE CONCERNED, BE NO MORE
THAN THE PERFUNCTORY SERVICE OF COUNTERSIGNING THE POLICY. 

BUT THE QUESTION IS NOT WHETHER WHAT VIRGINIA HAS DONE WILL RESTRICT
APPELLANTS' FREEDOM OF ACTION OUTSIDE VIRGINIA BY SUBJECTING THE
EXERCISE OF SUCH FREEDOM TO FINANCIAL BURDENS.  THE MERE FACT THAT
STATE ACTION MAY HAVE REPERCUSSIONS BEYOND STATE LINES IS OF NO
JUDICIAL SIGNIFICANCE SO LONG AS THE ACTION IS NOT WITHIN THAT DOMAIN
WHICH THE CONSTITUTION FORBIDS.  ALASKA PACKERS ASSN. V. COMM'N, 294
U.S. 532; ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S. 412. 
COMPARE EQUITABLE LIFE SOCIETY V. PENNSYLVANIA, 238 U.S. 143.  IT IS
EQUALLY IMMATERIAL THAT SUCH STATE ACTION MAY RUN COUNTER TO THE
ECONOMIC WISDOM EITHER OF ADAM SMITH OR OF J. MAYNARD KEYNES, OR MAY BE
ULTIMATELY MISCHIEVOUS EVEN FROM THE POINT OF VIEW OF AVOWED STATE
POLICY.  OUR INQUIRY MUST BE MUCH NARROWER.  IT IS WHETHER VIRGINIA HAS
TAKEN HOLD OF A MATTER WITHIN HER POWER, OR HAS REACHED BEYOND HER
BORDERS TO REGULATE A SUBJECT WHICH WAS NONE OF HER CONCERN BECAUSE THE
CONSTITUTION HAS PLACED CONTROL ELSEWHERE.  COMPARE WALLACE V. HINES,
253 U.S. 66, 69. 

VIRGINIA HAS NOT SOUGHT TO PROHIBIT THE MAKING OF CONTRACTS BEYOND
HER BORDERS.  SHE MERELY CLAIMS THAT HER INTEREST IN THE RISKS WHICH
THESE CONTRACTS ARE DESIGNED TO PREVENT WARRANTS THE KIND OF CONTROL
SHE HAS HERE IMPOSED.  THIS LEGISLATION IS NOT TO BE JUDGED BY
ABSTRACTING AN ISOLATED CONTRACT WRITTEN IN NEW YORK FROM THE ORGANIC
WHOLE OF THE INSURANCE BUSINESS, THE EFFECT OF THAT BUSINESS ON
VIRGINIA, AND VIRGINIA'S REGULATION OF IT. 

A NETWORK OF LEGISLATION CONTROLS THE SURETY AND CASUALTY BUSINESS IN
VIRGINIA.  INSOLVENT COMPANIES MAY NOT ENGAGE IN IT.  VIRGINIA CODE,
SEC. 4180.  NEITHER COMPANIES NOR AGENTS MAY GIVE REBATES.  SEC. 4222
C.  RATES FOR WORKMEN'S COMPENSATION, AUTOMOBILE LIABILITY AND SURETY
CONTRACTS ARE DETERMINED BY ITS CORPORATION COMMISSION.  SECS.
1887(75), 4326-A-1, 4350-3.  THE DIFFICULTY OF ENFORCING THESE
REGULATIONS, SO THE DISTRICT COURT FOUND, MAY BE INCREASED IF POLICIES
COVERING VIRGINIA RISKS ARE "PRODUCED" WITHOUT PARTICIPATION BY
RESPONSIBLE LOCAL AGENTS.  REBATES EVADING LOCAL RESTRICTION MAY BE
GRANTED UNDER COVER OF BUSINESS DONE OUTSIDE THE STATE.  CONTRARIWISE,
IF RESIDENT VIRGINIA AGENTS ARE MADE NECESSARY CONDUITS FOR INSURANCE
ON VIRGINIA RISKS NOW INCLUDED IN MASTER POLICIES, THE STATE MAY HAVE
BETTER MEANS OF ACQUIRING ACCURATE INFORMATION FOR THE EFFECTUATION OF
MEASURES WHICH IT DEEMS PROTECTIVE OF ITS INTERESTS.  FN2 

IT IS CLAIMED THAT THE REQUIREMENT THAT NOT LESS THAN ONE-HALF OF THE
CUSTOMARY COMMISSION BE RETAINED BY THE RESIDENT AGENT IS A BALD
EXACTION FOR WHAT MAY BE NO MORE THAN THE PERFUNCTORY SERVICE OF
COUNTERSIGNING POLICIES.  THE SHORT ANSWER TO THIS IS THAT THE STATE
MAY RELY ON THIS EXACTION AS A MODE OF ASSURING THE ACTIVE USE OF
RESIDENT AGENTS FOR PROCURING AND "SERVICING" POLICIES COVERING
VIRGINIA RISKS.  THESE FUNCTIONS, WHEN ADEQUATELY PERFORMED, BENEFIT
NOT ONLY THE COMPANY, THE PRODUCER, AND THE ASSURED.  BY MINIMIZING THE
RISKS OF CASUALTY AND LOSS, THEY REDOUND IN A PERVASIVE WAY TO THE
BENEFIT OF THE COMMUNITY.  FN3  AT LEAST VIRGINIA MAY SO HAVE
BELIEVED.  AND SHE MAY ALSO HAVE CONCLUDED THAT AN AGENCY SYSTEM, SUCH
AS THIS LEGISLATION WAS DESIGNED TO PROMOTE, IS BETTER CALCULATED TO
FURTHER THESE DESIRABLE ENDS THAN OTHER MODES OF "PRODUCTION."  FN4
WHEN THESE BELIEFS ARE EMPHASIZED BY LEGISLATION EMBODYING SIMILAR
NOTIONS OF POLICY IN A DOZEN STATES,  FN5  IT WOULD SAVOR OF
INTOLERANCE FOR US TO SUGGEST THAT A LEGISLATURE COULD NOT
CONSTITUTIONALLY ENTERTAIN THE VIEWS WHICH THE LEGISLATION ADOPTS. 
COMPARE PRUDENTIAL INS. CO. V. CHEEK, 259 U.S. 530, 537. 

THE PRESENT CASE, THEREFORE, IS WHOLLY UNLIKE THOSE INSTANCES IN
WHICH A "SO-CALLED RIGHT IS USED AS PART OF A SCHEME TO ACCOMPLISH A
FORBIDDEN RESULT."  FIDELITY & DEPOSIT CO. V. TAFOYA, 270 U.S. 426,
434.  FOR IT IS CLEAR THAT VIRGINIA HAS A DEFINABLE INTEREST IN THE
CONTRACTS SHE SEEKS TO REGULATE AND THAT WHAT SHE HAS DONE IS VERY
DIFFERENT FROM THE IMPOSITION OF CONDITIONS UPON APPELLANTS' PRIVILEGE
OF ENGAGING IN LOCAL BUSINESS WHICH WOULD BRING WITHIN THE ORBIT OF
STATE POWER MATTERS UNRELATED TO ANY LOCAL INTERESTS.  IT IS NOT OUR
PROVINCE TO MEASURE THE SOCIAL ADVANTAGE TO VIRGINIA OF REGULATING THE
CONDUCT OF INSURANCE COMPANIES WITHIN HER BORDERS INSOFAR AS IT AFFECTS
VIRGINIA RISKS.  GOVERNMENT HAS ALWAYS HAD A SPECIAL RELATION TO
INSURANCE.  THE WAYS OF SAFEGUARDING AGAINST THE UNTOWARD
MANIFESTATIONS OF NATURE AND OTHER VICISSITUDES OF LIFE HAVE LONG BEEN
WITHDRAWN FROM THE BENEFITS AND CAPRICES OF FREE COMPETITION.  FN6  THE
STATE MAY FIX INSURANCE RATES, GERMAN ALLIANCE INS. CO. V. LEWIS, 233
U.S. 389; IT MAY REGULATE THE COMPENSATION OF AGENTS, O'GORMAN & YOUNG
V. HARTFORD FIRE INS. CO., 282 U.S. 251; IT MAY CURTAIL DRASTICALLY THE
AREA OF FREE CONTRACT, NATIONAL INS. CO. V. WANBERG, 260 U.S. 71. 
STATES HAVE CONTROLLED THE EXPENSES OF INSURANCE COMPANIES, NEW YORK
INSURANCE LAW, CONSOLIDATED LAWS OF NEW YORK, C. 28, SEC. 244, AND
WISCONSIN STATUTES, SEC. 201.21; AND SEE REPORT OF JOINT (ARMSTRONG)
INSURANCE INVESTIGATION COMMITTEE (N.Y.)  PP. 403-18(1906).  THEY HAVE
ALSO PROMOTED INSURANCE THROUGH SAVINGS BANKS; SEE BERMAN, THE
MASSACHUSETTS SYSTEM OF SAVINGS BANK LIFE INSURANCE, BULLETIN NO. 615,
U.S. BUREAU OF LABOR STATISTICS, AND NEW YORK LAWS OF 1938, C. 471.  IN
THE LIGHT OF ALL THESE EXERTIONS OF STATE POWER IT DOES NOT SEEM
POSSIBLE TO DOUBT THAT THE STATE COULD, IF IT CHOSE, GO INTO THE
INSURANCE BUSINESS, JUST AS IT CAN OPERATE WAREHOUSES, FLOUR MILLS, AND
OTHER BUSINESS VENTURES, GREEN V. FRAZIER, 253 U.S. 233, OR MIGHT TAKE
"THE WHOLE BUSINESS OF BANKING UNDER ITS CONTROL," NOBLE STATE BANK V.
HASKELL, 219 U.S. 104, 113.  IF THE STATE, AS TO LOCAL RISKS, COULD
THUS PREEMPT THE FIELD OF INSURANCE FOR ITSELF, IT MAY STAY ITS
INTERVENTION SHORT OF SUCH A DRASTIC STEP BY INSISTING THAT ITS OWN
RESIDENTS SHALL HAVE A SHARE IN DEVISING AND SAFEGUARDING PROTECTION
AGAINST ITS LOCAL HAZARDS.  LA TOURETTE V. MCMASTER, 248 U.S. 465.  ALL
THESE ARE QUESTIONS OF POLICY NOT FOR US TO JUDGE.  FOR IT CAN NEVER BE
EMPHASIZED TOO MUCH THAT ONE'S OWN OPINION AS TO THE WISDOM OF A LAW
MUST BE WHOLLY EXCLUDED WHEN ONE IS DOING ONE'S JUDICIAL DUTY.  THE
LIMIT OF OUR INQUIRY IS REACHED WHEN WE CONCLUDE THAT VIRGINIA HAS
EXERTED ITS POWERS AS TO MATTERS WITHIN THE BOUNDS OF HER CONTROL. 

IN REACHING THIS CONCLUSION WE HAVE BEEN DULY MINDFUL OF THE CASES
URGED UPON US BY APPELLANTS.  IN ALLGEYER V. LOUISIANA, 165 U.S. 578,
APART FROM THE DOUBTS THAT HAVE BEEN CAST UPON THE OPINION IN THAT
CASE, THE STATE ATTEMPTED TO PENALIZE THE MAKING OF CONTRACTS BY ITS
RESIDENTS OUTSIDE ITS BORDERS WITH COMPANIES WHICH HAD NEVER SUBJECTED
THEMSELVES TO LOCAL CONTROL.  THUS THE STATUTE WAS THOUGHT TO BE
DIRECTED NOT AT THE REGULATION OF INSURANCE WITHIN THE STATE, BUT AT
THE MAKING OF CONTRACTS WITHOUT.  THIS WAS FOLLOWED IN ST. LOUIS
COMPRESS CO. V. ARKANSAS, 260 U.S. 346; BUT SEE THE REFINED
DISTINCTIONS DRAWN IN COMPANIA DE TABACOS V. COLLECTOR, 275 U.S. 87. 
IN FIDELITY & DEPOSIT CO. V. TAFOYA, SUPRA, THE COURT FOUND THAT NEW
MEXICO HAD EXCEEDED ITS POWER BY FORBIDDING "THE PAYMENT OF ANY
EMOLUMENT OF ANY NATURE TO ANY (NON-RESIDENT) FOR THE OBTAINING,
PLACING OR WRITING OF ANY POLICY COVERING RISKS IN NEW MEXICO."  THE
COURT WAS OF OPINION THAT THIS STATUTE WENT "BEYOND ANY LEGITIMATE
INTEREST OF THE STATE,  ...  " IBID. AT 435, BUT CAREFULLY WITHHELD ITS
JUDGMENT AS TO THE VALIDITY OF A LATER NEW MEXICO STATUTE NOT UNLIKE
THE VIRGINIA LAW HERE UNDER REVIEW.  FN7 

THE DECREE MUST BE AFFIRMED. 

FN1  THE RELEVANT PORTIONS OF THE VIRGINIA STATUTE ARE AS FOLLOWS: 

"SECTION 4222.  ...  (A)  INSURANCE COMPANIES, LEGALLY AUTHORIZED TO
DO BUSINESS IN THIS STATE, EXCEPT LIFE, TITLE AND OCEAN MARINE
INSURANCE COMPANIES, SHALL NOT MAKE CONTRACTS OF INSURANCE OR SURETY ON
PERSONS OR PROPERTY HEREIN, EXCEPT THROUGH REGULARLY CONSTITUTED AND
REGISTERED RESIDENT AGENTS OR AGENCIES OF SUCH COMPANIES; NO CONTRACT
OF INSURANCE OR SURETY COVERING PERSONS OR PROPERTY IN THIS STATE,
EXCEPT CONTRACTS OF LIFE, TITLE AND OCEAN MARINE INSURANCE AND EXCEPT
TEMPORARY BINDERS COVERING OTHER FORMS OF INSURANCE SHALL BE WRITTEN,
ISSUED OR DELIVERED BY ANY SUCH AUTHORIZED INSURANCE COMPANY, OR ANY OF
ITS REPRESENTATIVES, UNLESS SUCH CONTRACT IS DULY COUNTERSIGNED IN
WRITING BY A RESIDENT AGENT OR AGENCY OF SUCH COMPANY; PROVIDED,
HOWEVER, THAT THE COUNTERSIGNATURE OF AN INSURANCE AGENCY SHALL NOT BE
CONSIDERED VALID UNLESS SUCH COUNTERSIGNATURE BE ATTESTED TO IN WRITING
BY A REGULARLY CONSTITUTED AND REGISTERED RESIDENT AGENT OF SUCH
COMPANY. 

"NO STATE AGENT, SPECIAL AGENT, COMPANY REPRESENTATIVE, SALARIED
OFFICER, MANAGER OR OTHER SALARIED REPRESENTATIVE OF ANY LEGALLY
AUTHORIZED INSURANCE COMPANY, EXCEPT A MUTUAL INSURANCE COMPANY, SHALL
COUNTERSIGN ANY CONTRACT OF INSURANCE OR SURETY, OR ANY RENEWAL
THEREOF, COVERING PERSONS OR PROPERTY IN THIS STATE, EXCEPT CONTRACTS
OF LIFE, TITLE AND OCEAN MARINE INSURANCE; PROVIDED THAT THIS SECTION
SHALL NOT APPLY TO RAILROAD COMPANIES AND OTHER COMMON CARRIERS ENGAGED
IN INTERSTATE COMMERCE. 

     .         . .         .         . 

"SECTION 4226-A.  ...  NO RESIDENT AGENT OR AGENCY MAY WRITE,
COUNTERSIGN, ISSUE OR DELIVER ANY CONTRACT OF INSURANCE OR SURETY UPON
PERSONS OR PROPERTY IN THIS STATE UNLESS THERE SHALL BE COLLECTED AT
THE TIME THE CONTRACT IS WRITTEN, ISSUED OR DELIVERED, OR WITHIN A
REASONABLE TIME THEREAFTER, THE FULL PREMIUM ON SUCH CONTRACT, AND THE
RESIDENT AGENT OR AGENCY SHALL BE ENTITLED TO AND SHALL RECEIVE THE
USUAL AND CUSTOMARY COMMISSIONS ALLOWED ON SUCH CONTRACTS, PROVIDED
THAT SUCH RESIDENT AGENT OR AGENCY MAY WRITE SUCH CONTRACTS AT THE
REQUEST ONLY OF SUCH OTHER RESIDENT AGENTS OR AGENCIES, WHEN SUCH AGENT
OR AGENCIES ARE PROPERLY LICENSED TO TRANSACT THE CLASS OF BUSINESS
INVOLVED IN SUCH EXCHANGE, AND LICENSED NON-RESIDENT INSURANCE BROKERS
WHO MAY BE AUTHORIZED BY LAW TO BROKER SUCH CONTRACTS, AND ON EXCHANGE
OF BUSINESS BETWEEN RESIDENT AGENTS OR AGENCIES IN VIRGINIA AND
LICENSED NON-RESIDENT INSURANCE BROKERS IN OTHER STATES THE RESIDENT
AGENT OR AGENCY IN VIRGINIA MAY ALLOW OR PAY TO SUCH LICENSED NON
RESIDENT INSURANCE BROKERS, A COMMISSION NOT EXCEEDING FIFTY PER CENTUM
OF THE RESIDENT AGENT'S OR AGENCY'S COMMISSION ALLOWED ON SUCH
BUSINESS." 

FN2  WHERE OUT-OF-STATE "PRODUCTION" ACTUALLY LEADS TO REBATING IN
DEFIANCE OF SEC. 4222-C, THERE WOULD SEEM LITTLE DOUBT OF A SUBSTANTIAL
BASIS FOR VIRGINIA'S CONTENTION THAT THE REQUIREMENT OF PARTICIPATION
BY A RESIDENT AGENT WILL MAKE THE ILLEGAL PRACTICES MORE SUSCEPTIBLE OF
DETECTION AND CONTROL.  CF. LA TOURETTE V. MCMASTER, 248 U.S. 465. 
VIRGINIA HAS ALSO CONTENDED THAT THE MASTER POLICY MAKES IT POSSIBLE
FOR THE COMPANIES TO REDUCE THEIR RATES BELOW THE REQUIREMENTS OF STATE
LAW, AND TO ATTRIBUTE THE REDUCTIONS TO RISKS IN OTHER STATES WITH
REQUIREMENTS LESS STRINGENT THAN THOSE OF VIRGINIA.  APPELLANTS
STRENUOUSLY CONTEND THAT NO LAW OF VIRGINIA PROHIBITS THE REDUCTION OF
RATES FOR OUT-OF-STATE RISKS TO COMPENSATE FOR THE HIGHER RATES WHICH
MIGHT BE REQUIRED BY VIRGINIA AND, THEREFORE, THERE IS NO ILLEGAL
PRACTICE IN THIS CONNECTION WHICH THE EXISTENCE OF A RESIDENT AGENT
COULD AID IN UNCOVERING.  THIS ARGUMENT, IF MET ON THE MERITS, WOULD
LEAD US INTO THE PARTICULARITIES OF VIRGINIA'S RATE LAWS.  IT IS ENOUGH
TO SAY THAT EVEN IF THESE PRACTICES ARE NOT ILLEGAL, VIRGINIA MAY HAVE
A LEGITIMATE INTEREST IN DISCOVERING THE EXTENT OF THEIR PREVALENCE IN
ORDER TO DEVISE, IF SHE SO CHOOSES, EFFECTIVE LAWS TO PREVENT THEM. 

FN3  SEE HARDY, RISK AND RISK-BEARING, PP. 9-28, 66-67; KULP,
CASUALTY INSURANCE, PP. 188-91, 467-68; MICHELBACHER, CASUALTY
INSURANCE PRINCIPLES, PP. 448-78, 583-84; CROBAUGH AND REDDING,
CASUALTY INSURANCE, PP. 17-20; HUEBNER, FOREWORD TO MODERN INSURANCE
TENDENCIES, 157 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL
SCIENCE, PP. 3-4; BURNS, SERVICE OF CASUALTY INSURANCE, 15TH ANNUAL
MEETING, CHAMBER OF COMMERCE OF THE UNITED STATES, P. 4. 

FN4  "THE BROKER IS NOT REQUIRED TO RENDER ANY TECHNICAL SERVICE
BEYOND THE PLACING OF BUSINESS."  MICHELBACHER, CASUALTY INSURANCE
PRINCIPLES, P. 403.  COMPARE ID., PP. 401-402; HUEBNER, PROPERTY
INSURANCE, PP. 81-96; PROCEEDINGS, 73RD ANNUAL MEETING, NATIONAL BOARD
OF FIRE UNDERWRITERS, P. 123; CLARK, ELLIS AND FLETCHER, THE SERVICE OF
THE BROKER TO THE ASSURED IN LIABILITY INSURANCE, HOWE READINGS IN
INSURANCE, NO. 18.  BUT EVEN IF THE BROKER DOES "SERVICE" THE CONTRACT,
HIS ACTIVITIES WILL TAKE PLACE IN VIRGINIA, AND WILL AFFECT THE WELFARE
OF THOSE INSIDE VIRGINIA WHO MAY BE SUBJECT TO THE INCIDENCE OF THOSE
RISKS WHICH THE "SERVICING" FUNCTION TENDS TO REDUCE.  IF THIS BE TRUE,
IT IS VIRGINIA'S CONCERN AND NOT OURS TO PREFER THE AGENCY TO THE
BROKERAGE METHOD OF "PRODUCTION." 

FN5  ALABAMA CODE, SEC. 8379; KANSAS, GENERAL STATUTE (SUPP.), C. 40,
SEC. 246; LOUISIANA, ACTS OF 1918, NO. 153; MARYLAND, ANNOTATED CODE,
ART. 48A, SEC. 65; MISSISSIPPI, CODE, SEC. 5205; MONTANA, LAWS OF 1937,
C. 95; OKLAHOMA, STATUTES ANN., TITLE 36, SECS. 126, 142, 249; SOUTH
CAROLINA, CODE, SEC. 7972; SOUTH DAKOTA, CODE, SEC. 31.2218;
WASHINGTON, REV. STATUTES, SEC. 7080; WISCONSIN, STATUTES, SEC. 201.44;
WYOMING, REV. STATUTES, C. 57, SEC. 203. 

FN6  SEE GEPHART, PRINCIPLES OF INSURANCE, PP. 233-55; DAWSON,
INSURANCE LEGISLATION (1895); ABSTRACT OF THE LAWS OF VIRGINIA IN
RELATION TO INSURANCE COMPANIES, ETC., ISSUED BY THE AUDITOR OF PUBLIC
ACCOUNTS (1878); PATTERSON, THE INSURANCE COMMISSIONER IN THE UNITED
STATES. 

FN7  HARTFORD INDEMNITY CO. V. DELTA CO., 292 U.S. 143, RESTING ON
HOME INS. CO. V. DICK, 281 U.S. 397, HELD THAT THE TERMS OF A CONTRACT
VALIDLY MADE IN TENNESSEE COULD NOT BE SUBSEQUENTLY ENLARGED BY
MISSISSIPPI AS TO A CONDITION OF "SUBSTANTIAL IMPORTANCE" WHEN SUIT WAS
LATER BROUGHT ON THE POLICY IN MISSISSIPPI, SIMPLY BECAUSE "THE
INTEREST INSURED WAS IN MISSISSIPPI WHEN THE OBLIGATION TO INDEMNIFY
...  MATURED, AND IT WAS  ...  (THE COMPANY'S) DUTY TO MAKE PAYMENT
THERE."  292 U.S. AT 149.  AT THE TIME THE CONTRACT WAS ENTERED INTO
MISSISSIPPI HAD NO INTEREST IN THE RISK COVERED.  THE COURT FELT THAT,
EVEN AT THE TIME OF SUIT, "PERFORMANCE AT MOST INVOLVED ONLY THE CASUAL
PAYMENT OF MONEY IN MISSISSIPPI," IBID. AT 150, AND THAT WAS AN
INTEREST SO SUBORDINATE TO THAT OF TENNESSEE THAT THE LATTER WAS
ENTITLED TO HAVE THE RIGHT OF WAY.  NO QUESTION WAS THUS INVOLVED
TOUCHING THE RIGHT OF A STATE TO REGULATE COMPANIES DOING BUSINESS
WITHIN ITS BORDERS AS TO CONTRACTS OF INSURANCE COVERING LOCAL RISKS. 
MR. JUSTICE ROBERTS, DISSENTING:    I AM UNABLE TO AGREE WITH THE
DECISION IN THIS CASE.  I THINK IT SANCTIONS AN EXERTION OF POWER BY
VIRGINIA OVER TRANSACTIONS BEYOND HER JURISDICTION. 

VIRGINIA MAY, OF COURSE, REGULATE THE MAKING OF CONTRACTS OF
INSURANCE WITHIN HER BORDERS.  SHE MAY REQUIRE SUCH CONTRACTS TO EMBODY
SPECIFIED PROVISIONS.  SHE MAY REGULATE THE ENFORCEMENT OF THESE
CONTRACTS IN HER COURTS.  SHE MAY SUPERVISE AND CONDITION THE
ACTIVITIES OF REGISTERED FOREIGN INSURANCE COMPANIES, AGENTS OR BROKERS
WITHIN THE COMMONWEALTH.  THE STATUTE IN QUESTION HAS NO SUCH PURPOSE. 

THE PURPOSE AND EFFECT OF THE STATUTE ARE TO COMPEL AN INSURANCE
COMPANY WHICH IS A CITIZEN OF ANOTHER STATE, AND WHICH NEGOTIATES A
CONTRACT OF INSURANCE WITH AN AGENT OR BROKER WITHIN SUCH OTHER STATE,
TO PAY A RESIDENT OF VIRGINIA FOR A SERVICE NOT RENDERED BY HIM, BUT
RENDERED BY ANOTHER IN ANOTHER STATE.  BY FORCE OF THE STATUTE A
VIRGINIA AGENT MUST COUNTERSIGN A CONTRACT NEGOTIATED OUTSIDE OF
VIRGINIA WITH AN ASSURED WHOSE RESIDENCE IS OUTSIDE OF VIRGINIA, WHICH
CONTRACT OF INSURANCE WAS NEGOTIATED BY AN AGENT OR BROKER LIVING
OUTSIDE OF VIRGINIA.  THE COUNTERSIGNING VIRGINIA AGENT MUST BE PAID
ONE-HALF THE USUAL COMMISSION, EVEN THOUGH THE BROKER OR AGENT WHO
PRODUCED THE BUSINESS IS LICENSED AS A NON-RESIDENT BROKER BY VIRGINIA,
ALTHOUGH THE ONLY SERVICE SUCH VIRGINIA AGENT IS REQUIRED TO RENDER
AND, IN MANY CASES ALL HE DOES RENDER, IS THE MERE COUNTERSIGNATURE OF
THE POLICY.  WITH RESPECT TO THIS SITUATION THE COURT BELOW SAID: 

"WE DO NOT OVERLOOK THE PECULIAR SITUATION OF THE NON-RESIDENT
ASSURED WHO FORM NO PART OF THE VIRGINIA PUBLIC WHICH THE STATE DESIRES
TO PROTECT.  UNDOUBTEDLY THEIR BUSINESS METHODS WILL BE DISTURBED BY
THE ENFORCEMENT OF THE STATUTE.  IT IS CONTENDED, NOT WITHOUT MERIT,
THAT THEY HAVE NO NEED FOR THE SERVICES OF THE RESIDENT COMMISSION
AGENTS, AND THAT IN FACT, THE LATTER CANNOT ASSUME THE FUNCTION OF
PRODUCING AGENTS IN THEIR BEHALF WITHOUT HARMFULLY INTRUDING THEMSELVES
INTO CONFIDENTIAL BUSINESS AFFAIRS.  MOREOVER, IT IS FAIR TO SAY THAT
THESE AFFAIRS ARE SO IMPORTANT AND SO WIDESPREAD IN THEIR SCOPE AS TO
BE BEYOND THE TECHNICAL KNOWLEDGE AND SKILL OF THE AVERAGE VIRGINIA
AGENT, AND THAT THE INTERESTS OF THE NON-RESIDENT ASSUREDS CAN BE BEST
LOOKED AFTER BY THE BROKERS AT THE GREAT CENTERS OF POPULATION WHERE
THE HEAD OFFICES OF THE INSURANCE COMPANIES AND OF THE ASSUREDS ARE
LOCATED, AND IN VIRGINIA BY THE ENGINEERING AND CLAIM PERSONNEL OF THE
COMPANIES.  IT IS ALSO TRUE THAT THE SUBSTANTIAL COMPENSATION REQUIRED
BY THE STATUTE TO BE PAID TO THE VIRGINIA AGENTS WILL INCREASE THE COST
OF THE BUSINESS." 

THE PLAIN EFFORT OF VIRGINIA IS TO COMPEL A NONRESIDENT TO PAY A
RESIDENT OF VIRGINIA FOR SERVICES WHICH THE LATTER DOES NOT IN FACT
RENDER AND IS NOT REQUIRED TO RENDER.  THE PRINCIPLES UNDERLYING FORMER
DECISIONS OF THIS COURT ARE AT WAR WITH THE EXISTENCE OF ANY SUCH
ASSERTED POWER.  FN1 

FN1  ALLGEYER V. LOUISIANA, 165 U.S. 578; NEW YORK LIFE INS. CO. V.
HEAD, 234 U.S. 149; AETNA LIFE INS. CO. V. DUNKEN, 266 U.S. 389;
FIDELITY & DEPOSIT CO. V. TAFOYA, 270 U.S. 426; HOME INS. CO. V. DICK,
281 U.S. 397; HARTFORD ACCIDENT & INDEMNITY CO. V. DELTA & PINE LAND
CO., 292 U.S. 143; BOSEMAN V. CONNECTICUT GENERAL LIFE INS. CO., 301
U.S. 196. 

THE CHIEF JUSTICE AND MR. JUSTICE MCREYNOLDS JOIN IN THIS OPINION. 
..END :







HELVERING V. FULLER, 310 U.S. 69 


NO. 427.  ARGUED MARCH 26, 1940.  - DECIDED APRIL 22, 1940.  - 105 F.2D
903, AFFIRMED. 


IN COMPLIANCE WITH A SEPARATION AGREEMENT APPROVED BY A DECREE OF
DIVORCE IN NEVADA, THE HUSBAND CREATED AN IRREVOCABLE TRUST, OF SHARES
OF STOCK, TO CONTINUE FOR TEN YEARS, DURING WHICH PERIOD ALL TRUST
INCOME WAS TO BE USED FOR THE MAINTENANCE AND SUPPORT OF THE WIFE, OR
IN CASE OF HER PRIOR DECEASE, THEN FOR THE CHILDREN; OR IN CASE OF
THEIR PRIOR DECEASE, THEN FOR THE HEIRS OF THE WIFE OR AS SHE SHOULD
PROVIDE IN HER WILL.  AT THE EXPIRATION OF THE TEN YEAR PERIOD THE
TRUST PROPERTY WAS TO BE TRANSFERRED TO HER OUTRIGHT.  THE HUSBAND
RETAINED "EXCLUSIVE VOTING POWER" OF THE SHARES DURING THE TERM OF THE
TRUST.  POWER TO SELL THE STOCK VESTED JOINTLY IN HIM, THE WIFE, AND
THE CORPORATE TRUSTEE, AND COULD BE EXERCISED ONLY IN CASE ALL THREE
AGREED IN WRITING.  THOSE THREE HAD THE POWER TO INVEST AND REINVEST
THE PROCEEDS AND TO DISBURSE, WITHHOLD, AND ACCUMULATE THE PRINCIPAL OF
THE TRUST AT THEIR DISCRETION, SUCH POWER OVER THE INCOME BEING VESTED
IN THE WIFE AND CORPORATE TRUSTEE.  HELD: 

1.  THE QUESTION WHETHER THE HUSBAND IS TAXABLE ON THE TRUST INCOME
UNDER THE REVENUE ACTS OF 1928 AND 1932 IS NOT AFFECTED BY THE FACT
THAT AN INDEPENDENT UNDERTAKING ON HIS PART TO MAKE CERTAIN WEEKLY
PAYMENTS TO HIS WIFE, NOT SECURED BY THE TRUST, WAS CONTAINED IN THE
SAME INSTRUMENT WITH THE TRUST AGREEMENT.  P. 73. 

2.  THE PROVISIONS OF THE REVENUE ACTS OF 1928, SEC. 24(A)(1), AND
1932, SEC. 24, AND TREASURY REGULATIONS CONCERNING THE NONDEDUCTIBILITY
OF "FAMILY EXPENSES" AND OF "ALIMONY" IMPLY THE NECESSITY FOR AN
EXAMINATION OF THE LOCAL LAW TO DETERMINE THE MARITAL STATUS AND THE
OBLIGATIONS WHICH HAVE SURVIVED A DIVORCE.  P. 74. 

3.  UNDER THE LAW OF NEVADA, THE DECREE AND THE TRUST AGREEMENT, NO
POWER OF MODIFICATION HAVING BEEN RESERVED, OPERATED TO DISCHARGE, PRO
TANTO, THE HUSBAND'S DUTY OF SUPPORT; AND UNDER THE REVENUE ACTS SUPRA,
HE WAS NOT TAXABLE ON THE TRUST INCOME.  P. 75. 

4.  WHETHER THE TRUST AGREEMENT LEFT THE HUSBAND SUFFICIENT INTEREST
IN OR CONTROL OVER THE SHARES TO MAKE HIM THE OWNER OF THE CORPUS FOR
THE PURPOSES OF THE FEDERAL INCOME TAX, IS A QUESTION NOT RAISED OR
PASSED UPON IN THIS CASE.  P. 76. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. FULLER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 309 U.S. 644, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 37 B.T.A. 1333, SUSTAINING A DETERMINATION OF A
DEFICIENCY IN INCOME TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE RAISES THE QUESTION OF THE CIRCUMSTANCES UNDER WHICH INCOME
PAID TO THE TAXPAYER'S DIVORCED WIFE UNDER A TRUST, THE PROVISIONS OF
WHICH HAVE BEEN APPROVED IN THE DIVORCE DECREE, IS TAXABLE TO HIM.  WE
GRANTED CERTIORARI BECAUSE OF THE ASSERTED MISAPPLICATION BY THE
CIRCUIT COURT OF APPEALS OF THE RULE OF DOUGLAS V. WILLCUTS, 296 U.S.
1, TO THESE FACTS: 

ON JULY 25, 1930, RESPONDENT AND HIS WIFE, RESIDING IN CONNECTICUT,
ENTERED INTO AN AGREEMENT IN CONTEMPLATION OF DIVORCE WHICH PROVIDED,
INTER ALIA, FOR THE CREATION BY HIM OF A TRUST OF 60,380 SHARES OF
CLASS A COMMON STOCK OF THE FULLER BRUSH CO. THE TRUST WAS IRREVOCABLE
AND WAS TO CONTINUE FOR TEN YEARS.  DURING THAT PERIOD ALL TRUST INCOME
WAS TO BE USED FOR THE MAINTENANCE AND SUPPORT OF THE WIFE, OR IN CASE
OF HER PRIOR DECEASE, THEN FOR THE CHILDREN; OR IN CASE OF THEIR PRIOR
DECEASE, THEN FOR THE HEIRS OF THE WIFE OR AS SHE SHOULD PROVIDE IN HER
WILL.  AT THE EXPIRATION OF THE TEN YEAR PERIOD THE TRUST PROPERTY WAS
TO BE TRANSFERRED TO HER OUTRIGHT.  THE AGREEMENT PROVIDED FOR OTHER
PROPERTY SETTLEMENTS, FOR CONTROL AND CUSTODY OF THE CHILDREN, AND FOR
WAIVER BY RESPONDENT AND HIS WIFE OF ALL CLAIMS AGAINST EACH OTHER
ARISING OUT OF THE MARITAL RELATION.  IT ALSO CONTAINED AN AGREEMENT ON
THE PART OF RESPONDENT TO PAY THE WIFE $40 PER WEEK FOR FIVE YEARS,
AND, IF AT THE END OF THAT PERIOD HIS ANNUAL NET INCOME EXCEEDED BY THE
AMOUNT OF THE WEEKLY PAYMENTS THE SUM OF $60,000, TO CONTINUE THOSE
WEEKLY PAYMENTS FOR AN ADDITIONAL FIVE YEARS OR FOR SUCH PORTION
THEREOF AS HIS ANNUAL NET INCOME EXCEEDED THE ABOVE SUM. 

THE WIFE REPAIRED TO RENO, NEVADA, AND OBTAINED A DIVORCE DECREE ON
NOVEMBER 12, 1930, WHICH "ORDERED, ADJUDGED, AND DECREED THAT SAID
AGREEMENT ENTERED INTO BETWEEN THE PLAINTIFF AND THE DEFENDANT ON OR
ABOUT THE TWENTY-FIFTH DAY OF JULY, 1930, BE AND THE SAME HEREBY IS
APPROVED."  ON DECEMBER 22, 1930, RESPONDENT CREATED THE TRUST PROVIDED
FOR IN THE AGREEMENT.  FN1  THE CORPORATE TRUSTEE THEREUNDER RECEIVED
FROM THE FULLER BRUSH CO. ALL THE DIVIDENDS AND INCOME FROM THE
TRUSTEED SHARES DURING 1931, 1932 AND 1933 AND DISBURSED THEM ALL FOR
THE BENEFIT OF THE DIVORCED WIFE.  ON THE FAILURE OF RESPONDENT TO
INCLUDE THOSE AMOUNTS IN HIS TAX RETURNS FOR THE YEARS IN QUESTION, THE
COMMISSIONER ASSESSED DEFICIENCIES.  THE DECISIONS OF THE BOARD OF TAX
APPEALS, 37 B.T.A. 1333, SUSTAINING THE ACTION OF THE COMMISSIONER,
WERE REVERSED BY THE CIRCUIT COURT OF APPEALS.  105 F.2D 903. 

I. THERE CAN BE NO DOUBT BUT THAT RESPONDENT IS TAXABLE ON THE $40
WEEKLY PAYMENT TO THE WIFE.  THAT IS A CONTINUING PERSONAL OBLIGATION
FALLING WITHIN THE RULE OF DOUGLAS V. WILLCUTS, SUPRA, AS A RESULT OF
WHICH THOSE PAYMENTS ARE TAXABLE TO HIM, NOT TO THE WIFE.  GOULD V.
GOULD, 245 U.S. 151.  BUT THAT FACT DOES NOT MAKE THE INCOME FROM THE
TRUST ALSO TAXABLE TO HIM.  ALTHOUGH THE PROVISIONS FOR THE WEEKLY
PAYMENTS AND FOR THE TRUST AGREEMENT WERE EMBODIED IN THE SAME
SEPARATION AGREEMENT, THEY WERE NOT SO INTERRELATED OR INTERDEPENDENT
AS TO MAKE THE TRUST A SECURITY FOR THE WEEKLY PAYMENTS.  FUNCTIONALLY
THEY WERE AS INDEPENDENT OF EACH OTHER AS WERE THE OTHER PROPERTY
SETTLEMENTS FROM EITHER OF THEM. 

II.  PETITIONER DOES NOT CHALLENGE THE CONCLUSION OF THE CIRCUIT
COURT OF APPEALS THAT, SO FAR AS THE TRUST AGREEMENT IS CONCERNED, THE
NEVADA COURT RETAINED NO POWER TO ALTER OR MODIFY THE DIVORCE DECREE. 
IT SEEMS TO BE ADMITTED THAT UNDER NEVADA LAW THE WIFE'S ALLOWANCE ONCE
MADE IS FINAL, SWEENEY V. SWEENEY, 42 NEV. 431; 179 P. 638, UNLESS THE
DECREE ITSELF EXPRESSLY RESERVES THE POWER TO MODIFY IT, LEWIS V.
LEWIS, 53 NEV. 398; 2 P.2D 131, OR UNLESS THE DECREE APPROVES A
SETTLEMENT WHICH IN TURN PROVIDES FOR A MODIFICATION.  ASELTINE V.
SECOND JUDICIAL DISTRICT COURT, 57 NEV. 269; 62 P.2D 701.  HERE NO SUCH
POWER WAS RESERVED IN THE DECREE OR IN THE TRUST AGREEMENT APPROVED BY
THE DECREE.  NOR DID RESPONDENT UNDERWRITE THE PRINCIPAL OR INCOME FROM
THE TRUST OR ANY PART THEREOF OR MAKE ANY COMMITMENTS, CONTINGENT OR
OTHERWISE, RESPECTING THEM, BEYOND HIS PROMISE TO TRANSFER THE
SECURITIES TO A TRUSTEE.  BUT PETITIONER ARGUES THAT THE RULE OF
DOUGLAS V. WILLCUTS, SUPRA, SHOULD NONETHELESS APPLY SINCE THE DECREE
RECOGNIZED THE HUSBAND'S PREEXISTING DUTY TO SUPPORT AND DEFINED THAT
DUTY AS COEXTENSIVE WITH WHAT THE PARTIES HAD THEMSELVES ARRANGED, AND
SINCE THE HUSBAND SIMPLY CARVED OUT FUTURE INCOME FROM PROPERTY WHICH
HE THEN OWNED AND DEVOTED IT IN ADVANCE TO THE DISCHARGE OF HIS
OBLIGATION. 

WE TAKE A DIFFERENT VIEW.  IF RESPONDENT HAD NOT PLACED THE SHARES OF
STOCK IN TRUST BUT HAD TRANSFERRED THEM OUTRIGHT TO HIS WIFE AS PART OF
THE PROPERTY SETTLEMENT, THERE SEEMS TO BE NO DOUBT THAT INCOME
SUBSEQUENTLY ACCRUED AND PAID THEREON WOULD BE TAXABLE TO THE WIFE, NOT
TO HIM.  UNDER THE PRESENT STATUTORY SCHEME THAT CASE WOULD BE NO
DIFFERENT FROM ONE WHERE ANY DEBTOR, VOLUNTARILY OR UNDER THE
COMPULSION OF A COURT DECREE, TRANSFERS SECURITIES, A FARM, AN OFFICE
BUILDING, OR THE LIKE, TO HIS CREDITOR IN WHOLE OR PARTIAL PAYMENT OF
HIS DEBT.  CERTAINLY IT COULD NOT BE CLAIMED THAT INCOME THEREAFTER
ACCRUING FROM THE TRANSFERRED PROPERTY MUST BE INCLUDED IN THE DEBTOR'S
INCOME TAX RETURN.  IF THE DEBTOR RETAINED NO RIGHT OR INTEREST IN AND
TO THE PROPERTY, HE WOULD CEASE TO BE THE OWNER FOR PURPOSES OF THE
FEDERAL REVENUE ACTS.  SEE HELVERING V. CLIFFORD, 309 U.S. 331.  TO
HOLD THAT A DIFFERENT RESULT NECESSARILY OBTAINS WHERE THE TRANSFER IS
MADE OR THE TRUST IS CREATED AS PART OF A PROPERTY SETTLEMENT ATTENDANT
ON A DIVORCE WOULD BE TO HOLD THAT FOR PURPOSES OF THE FEDERAL INCOME
TAX THE MARITAL OBLIGATION OF THE HUSBAND TO SUPPORT HIS WIFE CANNOT BE
DISCHARGED.  BUT WHETHER OR NOT IT CAN BE DEPENDS ON STATE LAW.  FOR
OTHER PURPOSES, LOCAL LAW DETERMINES THE STATUS OF THE PARTIES AND
THEIR PROPERTY AFTER A DECREE DISSOLVING THE MATRIMONIAL BONDS.  SEE
BARRETT V. FAILING, 111 U.S. 523.  AND WHILE THE FEDERAL INCOME TAX IS
TO BE GIVEN A UNIFORM CONSTRUCTION OF NATIONAL APPLICATION, CONGRESS
FREQUENTLY HAS MADE IT DEPENDENT ON STATE LAW.  SEE THOMAS V. PERKINS,
301 U.S. 655, 659, AND CASES CITED.  IN THE INSTANT SITUATION, AN
INQUIRY INTO STATE LAW SEEMS INESCAPABLE.  FOR THE PROVISIONS IN THE
REVENUE ACTS  FN2  AND REGULATIONS  FN3  CONCERNING THE NON
DEDUCTIBILITY OF "FAMILY EXPENSES" AND OF "ALIMONY" DO NOT ILLUMINATE
THE PROBLEM BEYOND IMPLYING THE NECESSITY FOR AN EXAMINATION OF LOCAL
LAW TO DETERMINE THE MARITAL STATUS AND THE OBLIGATIONS WHICH HAVE
SURVIVED A DIVORCE.  THE NEVADA CASES TELL US THAT UNDER SUCH A DECREE
AS WAS ENTERED HERE THE OBLIGATION TO SUPPORT WAS PRO TANTO DISCHARGED
AND ENDED.  AND THE TRUST AGREEMENT CONTAINS NO CONTRACTUAL UNDERTAKING
BY RESPONDENT, CONTINGENT OR OTHERWISE, FOR SUPPORT OF THE WIFE.  HENCE
WE CAN ONLY CONCLUDE THAT RESPONDENT'S PERSONAL OBLIGATION IS NOT A
CONTINUING ONE BUT HAS BEEN DISCHARGED PRO TANTO.  TO HOLD THAT IT WAS
NOT WOULD BE TO FIND SUBSTANTIAL DIFFERENCES BETWEEN THIS IRREVOCABLE
TRUST AND AN OUTRIGHT TRANSFER OF THE SHARES TO THE WIFE, WHERE IN
TERMS OF LOCAL DIVORCE LAW WE CAN SEE ONLY ATTENUATED ONES.  THIS IS
NOT TO IMPLY THAT CONGRESS LACKS AUTHORITY TO DESIGN A DIFFERENT
STATUTORY SCHEME APPLYING UNIFORM STANDARDS FOR THE TAXATION OF INCOME
OF THE SO-CALLED ALIMONY TRUSTS.  A SOMEWHAT COMPARABLE STATUTE TAXING
TO THE GRANTOR INCOME FROM A TRUST APPLIED TO THE PAYMENT OF PREMIUMS
UPON INSURANCE POLICIES ON HIS LIFE WAS UPHELD IN BURNET V. WELLS, 289
U.S. 670.  BUT THE REACH OF CONGRESSIONAL POWER IS ONE THING; AN
INTERPRETATION OF A FEDERAL REVENUE ACT BASED ON LOCAL DIVORCE LAW,
QUITE ANOTHER. 

FOR THE REASONS WE HAVE STATED, IT SEEMS CLEAR THAT LOCAL LAW AND THE
TRUST HAVE GIVEN THE RESPONDENT PRO TANTO A FULL DISCHARGE FROM HIS
DUTY TO SUPPORT HIS DIVORCED WIFE AND LEAVE NO CONTINUING OBLIGATION,
CONTINGENT OR OTHERWISE.  HENCE UNDER HELVERING V. FITCH, 309 U.S. 149,
INCOME TO THE WIFE FROM THIS TRUST IS TO BE TREATED THE SAME AS INCOME
ACCRUING FROM PROPERTY AFTER A DEBTOR HAS TRANSFERRED THAT PROPERTY TO
HIS CREDITOR IN FULL SATISFACTION OF HIS OBLIGATIONS.  FN4 

III.  ONE OTHER OBSERVATION IS PERTINENT.  THOUGH THE DIVORCE DECREE
EXTINGUISHES THE HUSBAND'S PREEXISTING DUTY TO SUPPORT THE WIFE, AND
THOUGH NO PROVISION OF THE TRUST AGREEMENT PLACES SUCH OBLIGATION ON
HIM, THAT AGREEMENT MAY NEVERTHELESS LEAVE HIM WITH SUFFICIENT INTEREST
IN OR CONTROL OVER THE TRUST AS TO MAKE HIM THE OWNER OF THE CORPUS FOR
PURPOSES OF THE FEDERAL INCOME TAX.  HELVERING V. CLIFFORD, SUPRA. 

AS WE HAVE SEEN, RESPONDENT DID RETAIN CONSIDERABLE CONTROL OVER THE
TRUSTEED SHARES.  BUT THAT WAS NOT THE BASIS FOR THE ASSESSMENT OF THE
DEFICIENCY BY THE COMMISSIONER.  IT WAS NOT PASSED UPON BY THE BOARD OF
TAX APPEALS OR THE CIRCUIT COURT OF APPEALS.  IT WAS NOT INCLUDED IN
THE PETITION FOR CERTIORARI AMONG THE ERRORS TO BE URGED OR THE REASONS
FOR GRANTING THE WRIT.  NOR DID PETITIONER BRIEF OR ARGUE THE POINT
HERE.  HENCE WE DO NOT PASS ON THE APPLICABILITY OF THE RULE OF
HELVERING V. CLIFFORD, SUPRA, TO THESE FACTS.  CF. HELVERING V. WOOD,
309 U.S. 344.  AFFIRMED. 

FN1  THE TRUST AGREEMENT PROVIDED THAT HE WAS TO TRANSFER THE 60,380
SHARES OF STOCK ON THE BOOKS OF THE COMPANY FROM HIMSELF PERSONALLY TO
HIMSELF AS TRUSTEE AND THEN TO DELIVER THE CERTIFICATE FOR SUCH SHARES
TO THE CORPORATE TRUSTEE.  THIS WAS DONE.  ALSO IN ACCORDANCE WITH THE
PROVISIONS OF THE TRUST RESPONDENT EXECUTED A DIVIDEND ORDER AGAINST
THE SHARES DIRECTING THE FULLER BRUSH CO. TO PAY ALL DIVIDENDS TO THE
CORPORATE TRUSTEE.  RESPONDENT WAS THE FOUNDER OF THE COMPANY AND
DURING THE YEARS IN QUESTION WAS ITS PRESIDENT.  IT HAD OUTSTANDING
ONLY ONE CLASS OF VOTING STOCK, VIZ. CLASS A COMMON.  THE AMOUNT
OUTSTANDING DURING THESE YEARS VARIED BETWEEN 172,000 AND 186,000
SHARES.  RESPONDENT OWNED 60,380 SHARES WHICH TOGETHER WITH THE 60,380
SHARES UNDER THE TRUST CONSTITUTED MORE THAN A MAJORITY OF THAT CLASS
OF STOCK.  BY TERMS OF THE TRUST RESPONDENT RETAINED "EXCLUSIVE VOTING
POWER" OF THE TRUSTEED SHARES DURING THE TERM OF THE TRUST.  IF HE DIED
BEFORE ITS TERMINATION, THE VOTING POWER WOULD PASS TO THE WIFE. 
DURING THAT PERIOD POWER TO SELL THE STOCK WAS VESTED JOINTLY IN HIM,
THE WIFE, AND THE CORPORATE TRUSTEE AND COULD BE EXERCISED ONLY IN CASE
ALL THREE AGREED IN WRITING.  IN CASE OF SUCH A SALE, THOSE THREE HAD
THE POWER TO INVEST AND REINVEST THE PROCEEDS.  THEY ALSO WERE GIVEN
THE POWER TO DISBURSE, WITHHOLD, AND ACCUMULATE THE PRINCIPAL OF THE
TRUST AT THEIR SOLE DISCRETION, SUCH POWER OVER THE INCOME BEING VESTED
IN THE WIFE AND THE CORPORATE TRUSTEE. 

FN2  REVENUE ACT OF 1928(45 STAT. 791) SEC. 24(A)(1).  THE SAME
PROVISION APPEARS IN SEC. 24 OF THE 1932 ACT (47 STAT. 169). 

FN3  TREASURY REG. 74, ARTS. 83, 281, PROMULGATED UNDER THE 1928
ACT.  THE SAME PROVISIONS APPEAR IN TREASURY REG. 77, ARTS. 83, 281,
PROMULGATED UNDER THE 1932 ACT. 

FN4  SEE PAUL, FIVE YEARS WITH DOUGLAS V. WILLCUTS, 53 HARV. L. REV.
1. 

MR. JUSTICE REED, DISSENTING: 

THE OPINION OF THE COURT IN THIS CASE IS MADE TO TURN UPON THE
QUESTION WHETHER THE LAW OF THE TAXPAYER'S RESIDENCE WITHDRAWS DIVORCE
SETTLEMENTS FROM THE CONTINUING SUPERVISION AND SUBSEQUENT MODIFICATION
OF THE COURTS.  TWO TRUSTS, BOTH IRREVOCABLE, IN WORDS PRECISELY THE
SAME, DRAWN FOR THE PURPOSE OF PROVIDING MAINTENANCE FOR A FORMER WIFE,
RECOGNIZED OR APPROVED BY DIVORCE DECREES IDENTICAL IN FORM, ARE TO
HAVE DIFFERENT TAX RESULTS UPON THE SETTLOR.  IF INCOME TAXES ARE
PREDOMINANTLY IMPORTANT, PROSPECTIVE DIVORCES MUST LOCATE IN THE STATES
WHERE THE FINALITY OF THE SETTLEMENT IS CLEARLY ESTABLISHED.  COMPARE
DOUGLAS V. WILLCUTS,  FN1  HELVERING V. FITCH  FN2 AND HELVERING V.
LEONARD  FN3  WITH THIS CASE.  THE REASON GIVEN TO SUPPORT SUCH A
CONCLUSION IS THAT THE LIABILITY OF THE SETTLOR FOR TAXES ON TRUST
INCOME IS BASED ON THE POSSIBILITY THAT THE SETTLOR MAY BE CALLED UPON
FOR ADDITIONAL SUMS IN THE FUTURE.  IF THE OBLIGATION CONTINUES, THE
TAX LIABILITY CONTINUES.  IF THE OBLIGATION IS ENDED, THE TAX LIABILITY
IS ENDED.  IN DOUGLAS V. WILLCUTS CONTINUED LIABILITY EXISTED.  IT DOES
NOT SEEM TO ME, HOWEVER, THAT THIS CONTINUING LIABILITY WAS THE REAL
BASIS FOR THE DOUGLAS DECISION.  THE BASIS FOR THAT DECISION WAS THE
PRIOR APPROPRIATION, BY THE CREATION OF THE TRUST, OF FUTURE INCOME TO
MEET AN OBLIGATION OF THE TAXPAYER.  THE FOLLOWING EXCERPTS FROM PAGES
EIGHT AND NINE SHOW THE FOUNDATION FOR THE CONCLUSION: 

"WITHIN THE LIMITS PRESCRIBED BY THE STATUTE (AND THERE IS NO
SUGGESTION THAT THE PROVISION HERE WENT BEYOND THOSE LIMITS) THE COURT
HAD FULL AUTHORITY TO MAKE AN ALLOWANCE TO THE WIFE OUT OF HER
HUSBAND'S PROPERTY AND TO SET UP A TRUST TO GIVE EFFECT TO THAT
ALLOWANCE."           .         .         .         .         . 

"UPON THE PREEXISTING DUTY OF THE HUSBAND THE DECREE PLACED A
PARTICULAR AND ADEQUATE SANCTION, AND IMPOSED UPON PETITIONER THE
OBLIGATION TO DEVOTE THE INCOME IN QUESTION, THROUGH THE MEDIUM OF THE
TRUST, TO THE USE OF HIS DIVORCED WIFE." 

     .  .         .         .         . 

"THE CREATION OF A TRUST BY THE TAXPAYER AS THE CHANNEL FOR THE
APPLICATION OF THE INCOME TO THE DISCHARGE OF HIS OBLIGATION LEAVES THE
NATURE OF THE TRANSACTION UNALTERED.  ...  IN THE PRESENT CASE, THE NET
INCOME OF THE TRUST FUND, WHICH WAS PAID TO THE WIFE UNDER THE DECREE,
STANDS SUBSTANTIALLY ON THE SAME FOOTING AS THOUGH HE HAD RECEIVED THE
INCOME PERSONALLY AND HAD BEEN REQUIRED BY THE DECREE TO MAKE THE
PAYMENT DIRECTLY."  THE FITCH CASE WAS THE FIRST TO RELY EXPLICITLY
UPON THE FINALITY OF THE SETTLEMENT.  IT PUSHED THE IDEA TO THE POINT
THAT THE BURDEN WAS UPON THE SETTLOR TO DEMONSTRATE THE CLEAR FINALITY
OF THE LOCAL SETTLEMENT.  THIS COURT THERE REFUSED TO DRAW ITS OWN
CONCLUSION AS TO WHAT THE LOCAL LAW WAS, EVEN THOUGH NUMEROUS STATE
CASES TOUCHED UPON THE SUBJECT.  IN HELVERING V. LEONARD, THIS COURT
CONTINUES TO APPLY THE FINALITY RULE.  IT INTERPRETS THE LOCAL LAW AND
FINDS THAT WHILE "MERE PROPERTY SETTLEMENTS  ...  MAY NOT BE MODIFIED"
THE STATE JUDICIAL RESERVE POWER MAY BE EXERCISED WHERE "THE PROVISION
IN THE SEPARATE AGREEMENT, APPROVED BY THE DECREE" IS FOR SUPPORT AND
MAINTENANCE.  WE ARE NOW AT THE POINT WHERE THE TAXABILITY OF THE
SETTLOR DEPENDS NOT ONLY ON THE "CLEAR AND CONVINCING PROOF" OF THE
FINALITY OF THE DECREE BUT THE ABILITY TO PRODUCE THAT PROOF DEPENDS
UPON THE SKILL OF THE DRAFTSMAN OF THE SETTLEMENT.  FINE DISTINCTIONS
ARE NECESSARY IN REASONING BUT MOST UNDESIRABLE IN A NATIONAL TAX
SYSTEM. 

IT IS NO ANSWER TO THE PROBLEM TO SAY THAT IF THE STOCK HAD BEEN
TRANSFERRED OUTRIGHT TO THE WIFE THE HUSBAND WOULD NOT BE LIABLE FOR
THE TAX.  IF THE STOCK HAD BEEN KEPT BY THE HUSBAND AND DIVIDENDS PAID
AS ALIMONY, HE WOULD HAVE BEEN LIABLE.  FN4  EITHER ANALOGY MIGHT BE
LOGICALLY FOLLOWED IN THE TRUST SITUATION BUT THE CHOICE OF TAXABILITY
OF TRUST INCOME WAS MADE IN DOUGLAS V. WILLCUTS.  THAT CASE DETERMINES
THE "GENERAL RULE."  FN5 

IT MAY BE ASSUMED THAT THE ORIGINAL OBLIGATION OF THE HUSBAND TO
SUPPORT A DIVORCED WIFE DEPENDS UPON STATE LAW AND TO THAT EXTENT THAT
THE STATE LAW IS APPLICABLE TO THE DETERMINATION OF LIABILITY UNDER THE
FEDERAL INCOME TAX ACT.  BUT THAT NECESSARY RELIANCE UPON LOCAL LAW
NEED BE CARRIED NO FARTHER THAN THE DETERMINATION OF OBLIGATION TO
SUPPORT.  ONCE THAT IS DETERMINED THE APPLICABILITY OF THE THEORY OF
CONSTRUCTIVE RECEIPT OF INCOME TO DISCHARGE THE OBLIGATION WOULD COME
INTO PLAY AND WOULD BE NATIONWIDE IN EXTENT. 

THE OBLIGATION TO SUPPORT EXISTS PRIOR TO THE DIVORCE DECREE.  IT IS
ENDED IN NEVADA ONLY UPON GETTING THE COURT'S APPROVAL TO AN
ARRANGEMENT WHICH PERMITS THE CREATION OF A FUND TO MEET FROM YEAR TO
YEAR THE OBLIGATION FROM WHICH THE NEVADA LAW THEN AND ONLY THEN
RELEASES THE SETTLOR HUSBAND.  FN6  IT IS BY THE COURT'S APPROVAL THAT
THE CONTINUING OBLIGATION IS DISCHARGED.  GRANTING THAT A LUMP SUM
PAYMENT WOULD TERMINATE BOTH THE MARITAL AND THE TAX LIABILITY, THE
CREATION OF A TRUST, APPROVED BY THE COURT, FOR CONTINUOUS PAYMENTS IN
LIEU OF ALIMONY SEEMS TO BRING THE TRUST INCOME MUCH CLOSER TO ALIMONY
THAN TO THE SITUATION OF A FINAL SETTLEMENT BY LUMP SUM PAYMENT. 

THIS IS PARTICULARLY TRUE IN THIS PRESENT CASE WHERE THE SETTLEMENT
AGREEMENT SHOWS THAT THE HUSBAND RETAINED VOTING POWER OVER THE STOCK
PLACED IN TRUST.  60,380 SHARES OF CLASS A COMMON STOCK OF THE FULLER
BRUSH COMPANY, THE ONLY CLASS OF VOTING STOCK, WAS PLACED IN THE
TRUST.  AN EQUAL AMOUNT WAS RETAINED BY THE TAXPAYER.  THE AGGREGATE
WAS A MAJORITY OF THE TOTAL OF VOTING STOCK OUTSTANDING.  THIS POWER,
RETAINED TO THE SETTLOR, IS OF WEIGHT IN DETERMINING THAT THE PRESENT
TRUST IS MORE NEARLY AKIN TO AN AGREEMENT TO PAY ALIMONY THAN IT IS TO
A SATISFACTION OF AN OBLIGATION BY AN UNRESTRICTED TRANSFER. 

THE JUDGMENT SHOULD BE REVERSED. 

FN1  296 U.S. 1. 

FN2  309 U.S. 149. 

FN3  POST, P. 80. 

FN4  GOULD V. GOULD, 245 U.S. 151. 

FN5  HELVERING V. FITCH, 309 U.S. 149, 156. 

FN6  NEVADA COMPILED LAWS, 1929, SECS. 9463 AND 9465. 
..END :

















HELVERING V. LEONARD, 310 U.S. 80 


NO. 426.  ARGUED MARCH 26, 1940.  - DECIDED APRIL 22, 1940.  - 105 F.2D
900, REVERSED. 


A SEPARATION AGREEMENT PROVIDING FOR THE SUPPORT OF A WIFE EMBRACED A
TRUST AGREEMENT WHEREBY THE HUSBAND CONTRIBUTED TO THE CORPUS
SECURITIES AND CASH, INCLUDING CORPORATE BONDS THE PAYMENT OF THE
PRINCIPAL AND INTEREST OF WHICH HE GUARANTEED.  THE TRUST COULD BE
AMENDED BY THE HUSBAND AND WIFE JOINTLY, AND THE HUSBAND RETAINED A
LIMITED POWER OF SUBSTITUTION IN RESPECT OF CERTAIN BANK STOCK WHICH
WAS PART OF THE CORPUS.  OTHERWISE THE TRUST WAS IRREVOCABLE AND THE
HUSBAND RETAINED NO RIGHT TO EITHER THE CORPUS OR THE INCOME.  A
SPECIFIED AMOUNT OF THE TRUST INCOME WAS TO BE PAID TO EACH OF THREE
CHILDREN; THE REMAINDER TO THE WIFE; AND UPON HER DEATH, THE CORPUS WAS
TO BE HELD FOR THE CHILDREN.  THE SEPARATION AGREEMENT ALSO OBLIGATED
THE HUSBAND TO PAY TO THE WIFE ANNUALLY A CERTAIN ADDITIONAL SUM FOR
THE SUPPORT OF HERSELF AND THE CHILDREN, SUBJECT TO REDUCTION UPON
APPLICATION TO A COURT OF COMPETENT JURISDICTION.  THE ARRANGEMENT WAS
APPROVED BY A DECREE OF DIVORCE IN NEW YORK.  HELD: 

1.  THE PORTION OF THE TRUST INCOME WHICH WAS RECEIVED FROM THE
GUARANTEED BONDS WAS TAXABLE INCOME OF THE HUSBAND, UNDER THE REVENUE
ACT OF 1928.  P. 84. 

BY THE HUSBAND'S GUARANTEE OF PAYMENT OF THE PRINCIPAL AND INTEREST
OF THE BONDS, A PERSONAL OBLIGATION, THOUGH CONTINGENT, CONTINUED TO
EXIST PRO TANTO; AND THE RULE OF DOUGLAS V. WILLCUTS, 296 U.S. 1, IS
APPLICABLE. 

2.  OTHER TRUST INCOME ALSO WAS TAXABLE TO THE HUSBAND, FOR THE
REASON THAT HE DID NOT SUSTAIN THE BURDEN OF SHOWING BY CLEAR AND
CONVINCING PROOF THAT THE NEW YORK COURT LACKED POWER AFTER THE DIVORCE
TO ADD TO HIS PERSONAL OBLIGATIONS IN ANY EVENTUALITY.  HELVERING V.
FITCH, 309 U.S. 149.  P. 85. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. LEONARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 309 U.S. 644, TO REVIEW A JUDGMENT REVERSING A DECISION
OF THE BOARD OF TAX APPEALS, 36 B.T.A. 563, ASSESSING A DEFICIENCY IN
INCOME TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE QUESTION OF THE TAXABILITY TO THE GRANTOR
UNDER THE REVENUE ACT OF 1928(45 STAT. 791) OF INCOME FROM A SO-CALLED
ALIMONY TRUST WHICH IS PAYABLE TO HIS DIVORCED WIFE.  WE GRANTED
CERTIORARI BECAUSE OF THE PROBABLE CONFLICT OF THE DECISION BELOW WITH
DOUGLAS V. WILLCUTS, 296 U.S. 1, AND HELVERING V. FITCH, 309 U.S. 149. 

IN 1928 RESPONDENT'S WIFE INSTITUTED SUIT IN NEW YORK FOR AN ABSOLUTE
DIVORCE.  ON JUNE 4, 1929, WHILE THAT SUIT WAS PENDING, RESPONDENT AND
HIS WIFE ENTERED INTO A SEPARATION AGREEMENT AND, TOGETHER WITH A
CORPORATE TRUSTEE, EXECUTED A TRUST AGREEMENT.  UNDER THE LATTER
RESPONDENT CONTRIBUTED SECURITIES AND CASH OF $650,000, WHICH INCLUDED
$400,000 PRINCIPAL AMOUNT OF 6% FIRST MORTGAGE BONDS OF AN OIL
COMPANY.  RESPONDENT GUARANTEED THE "PAYMENT WHEN DUE OF THE PRINCIPAL
AND INTEREST" ON THOSE BONDS; AND ON NOTICE OF ANY DEFAULT IN THE
PAYMENT OF ANY INTEREST ON OR PRINCIPAL OF THEM, HE AGREED TO
SUBSTITUTE CASH OR SECURITIES WITH A "MARKET VALUE EQUAL TO" THE
PRINCIPAL, AND CASH SUFFICIENT TO COVER ANY ACCRUED INTEREST.  FN1  THE
TRUST WAS IRREVOCABLE  FN2 EXCEPT THAT (1) IT COULD BE AMENDED BY
RESPONDENT AND HIS WIFE; FN3  AND (2) RESPONDENT RETAINED A LIMITED
POWER OF SUBSTITUTION AS RESPECTS CERTAIN BANK STOCK WHICH WAS PART OF
THE CORPUS.  THE TRUSTEE AGREED TO USE "REASONABLE EFFORTS TO CONSULT"
WITH RESPONDENT WITH RESPECT TO "THE CHARACTER OF THE INVESTMENTS"
THOUGH IT WAS NOT BOUND TO FOLLOW HIS ADVICE.  RESPONDENT RETAINED NO
RIGHT TO EITHER THE CORPUS OR THE INCOME, OR ANY PART THEREOF, EXCEPT
AS INDICATED ABOVE.  THE NET INCOME WAS TO BE PAID AS FOLLOWS:  $5000 A
YEAR TO EACH OF THREE CHILDREN; THE REMAINING AMOUNT TO THE WIFE DURING
HER LIFE FOR HER MAINTENANCE AND SUPPORT, AND IN HER SOLE DISCRETION
FOR THE SUPPORT, MAINTENANCE AND EDUCATION OF THE CHILDREN.  ON DEATH
OF THE WIFE, THE CORPUS WAS TO BE HELD FOR THE CHILDREN. 

THE SEPARATION AGREEMENT INCORPORATED THE TRUST AGREEMENT BY
REFERENCE; STATED THAT THE WIFE'S INCOME FROM THE TRUST AND FROM OTHER
PROPERTY RECEIVED FROM THE HUSBAND WOULD AGGREGATE $30,000 A YEAR;
PROVIDED THAT RESPONDENT WOULD PAY HIS WIFE AN ADDITIONAL $35,000 EACH
YEAR DURING HER LIFE SO THAT HER AGGREGATE NET INCOME FOR THE
MAINTENANCE AND SUPPORT OF HERSELF AND THE CHILDREN WOULD APPROXIMATE
$65,000 A YEAR, AND WOULD FURTHER PAY ANY "EXTRAORDINARY MEDICAL OR
SURGICAL EXPENSES" INCURRED BY THE WIFE OR ON BEHALF OF THE CHILDREN
UNTIL THEY ATTAINED THE AGE OF TWENTY-FIVE YEARS; STATED THAT IN THE
EVENT THAT RESPONDENT'S ABILITY TO PAY THE ABOVE $35,000 BECAME
IMPAIRED, HE MIGHT APPLY TO ANY COURT OF COMPETENT JURISDICTION FOR A
REDUCTION OF HIS OBLIGATION TO NOT LESS THAN $10,000 A YEAR; MADE OTHER
PROPERTY SETTLEMENTS; PROVIDED FOR CARE AND CUSTODY OF THE CHILDREN;
RELEASED DOWER, ETC. 

THE DECREE OF DIVORCE BECAME FINAL IN OCTOBER 1929.  IT "APPROVED AND
AFFIRMED AND MADE A PART OF THE JUDGMENT HEREIN" THE SEPARATION
AGREEMENT (WHICH AS WE HAVE SAID INCORPORATED THE TRUST AGREEMENT)
"PROVIDING FOR THE SUPPORT AND MAINTENANCE OF THE PLAINTIFF," AND IN
ADDITION DIRECTED RESPONDENT TO PAY HER $35,000 A YEAR FOR THE REST OF
HER LIFE.  FROM JUNE 4, 1929 TO DECEMBER 31, 1929, THE TRUSTEE RECEIVED
$16,191.34 AS DIVIDENDS AND INTEREST FROM THE TRUST PROPERTY.  IT
DISTRIBUTED $5200 TO THE WIFE AND $2083.33 TO EACH OF THREE CHILDREN,
LEAVING AN UNDISTRIBUTED BALANCE FOR THAT PERIOD OF ABOUT $4700. 
RESPONDENT DID NOT INCLUDE ANY OF THAT INCOME IN HIS RETURN FOR 1929. 
THE COMMISSIONER DETERMINED A DEFICIENCY.  THE BOARD OF TAX APPEALS
HELD THAT ONLY THE AMOUNTS ACTUALLY DISTRIBUTED TO RESPONDENT'S WIFE
AND MINOR CHILDREN WERE TAXABLE TO HIM.  36 B.T.A. 563.  THE CIRCUIT
COURT OF APPEALS REVERSED, HOLDING THAT RESPONDENT, THOUGH TAXABLE ON
INCOME PAYABLE TO HIS MINOR CHILDREN, WAS NOT TAXABLE ON INCOME PAYABLE
TO THE WIFE.  105 F.2D 900. 

HERE, AS IN THE CIRCUIT COURT OF APPEALS, IT WAS URGED BY THE
PETITIONER THAT THIS ALIMONY TRUST WAS MERELY SECURITY FOR RESPONDENT'S
CONTINUING OBLIGATION TO SUPPORT HIS WIFE AND, THEREFORE, THAT THE
TRUST INCOME PAYABLE TO HER WAS TAXABLE TO HIM UNDER THE RULE OF
DOUGLAS V. WILLCUTS, SUPRA.  IN SUPPORT OF THAT POSITION IT WAS URGED,
INTER ALIA, THAT UNDER NEW YORK LAW RESPONDENT'S OBLIGATION WAS NOT
DISCHARGED SINCE THE NEW YORK COURT RETAINED THE POWER TO MODIFY THE
DECREE; AND THAT THE PROMISE BY RESPONDENT TO PAY THE WIFE $35,000(OR
IN NO EVENT LESS THAN $10,000) A YEAR CONVERTED THE TRUST INTO AT LEAST
PARTIAL SECURITY FOR THE TOTAL ALLOWANCE TO HER.  IN EITHER OF SUCH
EVENTS THE RULE OF DOUGLAS V. WILLCUTS, SUPRA, WOULD APPLY.  SEE
HELVERING V. FITCH, SUPRA.  THE CIRCUIT COURT OF APPEALS, HOWEVER,
DECIDED THESE TWO QUESTIONS ADVERSELY TO PETITIONER.  BUT THERE IS ONE
MATTER NOT TOUCHED ON BY THAT COURT WHICH WE THINK IS DETERMINATIVE OF
ONE PHASE OF THE CASE. 

THE TRUST AGREEMENT CONTAINS AN EXPRESS PERSONAL OBLIGATION OF
RESPONDENT IN THE FORM OF A GUARANTEE OF PAYMENT OF THE PRINCIPAL AND
INTEREST ON $400,000 OF THE 6% BONDS WHICH WERE PART OF THE TRUST
CORPUS.  TO BE SURE, THAT PERSONAL OBLIGATION WAS CONTINGENT.  BUT WE
DO NOT DEEM THAT TO BE MATERIAL.  WE RECENTLY STATED IN HELVERING V.
FITCH, SUPRA, P. 156, THAT UNDER THIS STATUTORY SCHEME ESCAPE FROM THE
RULE OF DOUGLAS V. WILLCUTS, SUPRA, MAY BE HAD ONLY ON "CLEAR AND
CONVINCING PROOF" THAT "LOCAL LAW AND THE ALIMONY TRUST HAVE GIVEN THE
DIVORCED HUSBAND A FULL DISCHARGE AND LEAVE NO CONTINUING OBLIGATION
HOWEVER CONTINGENT."  WHATEVER MAY BE THE CORRECT VIEW ON THE OTHER
ASPECTS OF THE CASE, THE GUARANTEE WAS SUCH A CONTINUING OBLIGATION. 
THE FACT THAT THE WIFE OR OTHER BENEFICIARIES LOOKED PRIMARILY TO THE
TRUST AND ONLY SECONDARILY TO RESPONDENT FOR PAYMENT OF $24,000
ANNUALLY, THE FACT THAT RESPONDENT'S OBLIGATION MIGHT BE ENFORCEABLE BY
THE TRUSTEE, THE FACT THAT RESPONDENT MIGHT NEVER HAVE TO MAKE GOOD ON
HIS PROMISE ARE BESIDE THE POINT.  THE EXISTENCE OF WHOLLY CONTINGENT
OBLIGATIONS, WHETHER CONTRACTUAL OR OTHERWISE, IS ADEQUATE TO SUPPORT
THE RESULTS REACHED IN DOUGLAS V. WILLCUTS, SUPRA.  FOR IN THAT CASE IT
WAS MANIFEST THAT AT THE TIME OF THE CREATION AND APPROVAL OF THE TRUST
THE DIVORCE COURT MIGHT NEVER EXERCISE ITS RESERVED POWER TO REVISE OR
ALTER THE DECREE AND THE HUSBAND MIGHT NEVER HAVE TO MAKE GOOD ON HIS
PROMISE TO MAKE UP DEFICIENCIES IN THE ESTIMATED TRUST INCOME. 
LIKEWISE IN THE INSTANT CASE, IT CANNOT BE SAID THAT THE DIVORCE DECREE
AND THE ALIMONY TRUST GAVE RESPONDENT AN ABSOLUTE DISCHARGE FROM HIS
PRIOR OBLIGATION.  SO FAR AS THE GUARANTEE ALONE IS CONCERNED, THEY
PERMITTED HIS PREEXISTING UNCONDITIONAL DUTY TO BE TRANSFORMED INTO A
LIMITED CONTINGENT ONE.  BUT NONETHELESS THEY PLACED A SPECIFIC AND
ADEQUATE SANCTION ON THAT DUTY, SO THAT RESPONDENT'S PERSONAL
OBLIGATION WOULD NOT BE FULLY DISCHARGED AT LEAST UNTIL COMPLETE
PAYMENT OF THE PRINCIPAL AND INTEREST ON THE 6% BONDS HAD BEEN MADE. 
THUS IN EFFECT, IF NOT IN FORM, THE TRUST AGREEMENT WAS SECURITY FOR
HIS CONTINUING OBLIGATION WHICH WOULD BE DISCHARGED AT LEAST PRO TANTO
AS INCOME FROM THOSE BONDS WAS RECEIVED BY THE TRUSTEE.  HENCE THE CASE
IN SUBSTANCE IS THE SAME AS THOSE WHERE PURSUANT TO CONTRACT OR
ARRANGEMENT AN OBLIGATION IS DISCHARGED BY ANOTHER FOR THE TAXPAYER'S
BENEFIT; SEE OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716; UNITED
STATES V. BOSTON & MAINE RAILROAD, 279 U.S. 732; OR WHERE THE TAXPAYER
CREATES A TRUST, THE INCOME OF WHICH IS APPLIED TO THE DISCHARGE OF HIS
DEBT.  SEE HELVERING V. BLUMENTHAL, 296 U.S. 552.  HERE, AS THERE, THE
TAXPAYER RECEIVED A BENEFIT BY THE PAYMENTS.  THE CATALOGUE OF BENEFITS
IS NOT DEPLETED WHEN PRIMARY OBLIGATIONS ARE DISCHARGED.  FOR THESE
REASONS THAT PORTION OF THE TRUST INCOME WHICH WAS RECEIVED FROM THE
GUARANTEED BONDS WAS CLEARLY TAXABLE TO RESPONDENT. 

APPARENTLY, HOWEVER, A PORTION OF THAT INCOME WAS RECEIVED FROM OTHER
TRUST PROPERTY.  BUT WE THINK THAT WAS ALSO TAXABLE TO RESPONDENT
THOUGH FOR ANOTHER REASON. 

AS WE HAVE SEEN, THE DIVORCE DECREE APPROVED, AFFIRMED AND MADE PART
OF THE JUDGMENT THE SEPARATION AGREEMENT PROVIDING FOR THE "SUPPORT AND
MAINTENANCE" OF THE WIFE.  HER MAINTENANCE AND SUPPORT WERE SECURED NOT
ONLY BY THE TRUST AGREEMENT AND OTHER PROPERTY SETTLEMENTS BUT ALSO BY
THE PERSONAL OBLIGATION OF THE HUSBAND TO CONTRIBUTE AN ANNUAL SUM. 
THE CIRCUIT COURT OF APPEALS HELD THAT UNDER NEW YORK LAW THE TERMS OF
THE TRUST WOULD NOT BE CHANGED "UNLESS THE WIFE CAN DISAFFIRM IT FOR
FRAUD, OVERREACHING, OR THE LIKE," CITING GALUSHA V. GALUSHA, 116 N.Y.
635; 22 N.E. 1114; 138 N.Y. 272; 33 N.E. 1062; CAIN V. CAIN, 188 APP.
DIV. 780; 177 N.Y.S. 178; HAMLIN V. HAMLIN, 224 APP. DIV. 168; 230
N.Y.S. 51.  IF THE CASE WAS HERE ON APPLICATION OF LOCAL LAW UNDER THE
RULE OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64, WE WOULD NOT BE INCLINED
TO DISTURB THAT FINDING.  BUT IT IS NOT.  HERE RESPONDENT IS SEEKING TO
ESCAPE ONE OF THE NORMAL INCIDENTS OF THE FEDERAL INCOME TAX.  FOR THAT
PURPOSE HE INVOKES THE AID OF NEW YORK LAW.  IN HELVERING V. FITCH,
SUPRA, WE STATED THAT WHERE THE DIVORCED HUSBAND DESIRES TO AVOID THE
GENERAL RULE EXPRESSED IN DOUGLAS V. WILLCUTS, SUPRA, HE CARRIES A
DISTINCT BURDEN OF ESTABLISHING NOT BY MERE INFERENCE AND CONJECTURE
BUT BY "CLEAR AND CONVINCING PROOF" THAT LOCAL LAW AND THE ALIMONY
TRUST HAVE GIVEN HIM A FULL DISCHARGE.  WE DO NOT THINK THAT RESPONDENT
HAS SUSTAINED THAT BURDEN. 

AS STATED BY THE CIRCUIT COURT OF APPEALS, IT DOES SEEM CLEAR THAT
MERE PROPERTY SETTLEMENTS, THOUGH INCORPORATED INTO THE DECREE, MAY NOT
BE MODIFIED PURSUANT TO THE RESERVED STATUTORY POWERS OF THE COURT,
CONTAINED IN N.Y. CIVIL PRAC.  ACT SECS. 1155, 1170.  SEE CAIN V. CAIN,
SUPRA; GOLDFISH V. GOLDFISH, 193 APP. DIV. 686; 184 N.Y.S. 512. 
SCHNITZER V. BUERGER, 237 APP. DIV. 622; 262 N.Y.S. 385.  NEVERTHELESS
THESE SETTLEMENTS MAY BE REMADE BY THE COURT NOT ONLY WHERE AN ORDINARY
CONTRACT MAY BE SET ASIDE BUT ALSO WHERE THEY ARE UNFAIR, INEQUITABLE
AND UNJUST.  HAMLIN V. HAMLIN, SUPRA.  CF. TIRRELL V. TIRRELL, 232 N.Y.
224; 133 N.E. 569.  AS STATED BY THE COURT IN THE HAMLIN CASE (224 APP.
DIV. AT P. 171) THE REQUIREMENT IS THAT "SUCH CONTRACTS BE NOT ONLY
FREE FROM TAINT OF ACTUAL FRAUD OR COERCION BUT ALSO FAIR AND
REASONABLY SUFFICIENT HAVING REGARD TO THE STATION IN LIFE AND
CIRCUMSTANCES OF THE PARTIES."  MORE IMPORTANT TO THIS CASE, HOWEVER,
ARE KUNKER V. KUNKER, 230 APP. DIV. 641; 246 N.Y.S. 118 AND HOLAHAN V.
HOLAHAN, 234 APP. DIV. 572; 255 N.Y.S. 693.  THEY MAKE IT PLAIN THAT
THE COVENANTS OF A SEPARATION AGREEMENT ARE NOT "AN INSUPERABLE
OBSTACLE TO OBTAINING RELIEF BY MODIFICATION OF THE ALLOWANCES." 
HOLAHAN V. HOLAHAN, SUPRA, P. 574.  CF. SEVERANCE V. SEVERANCE, 260
N.Y. 432; 183 N.E. 909.  THE RESERVED POWER APPARENTLY MAY BE EXERCISED
WHERE THE PROVISION IN THE SEPARATE AGREEMENT, APPROVED BY THE DECREE,
IS FOR SUPPORT AND MAINTENANCE (KUNKER V. KUNKER AND HOLAHAN V.
HOLAHAN, SUPRA) BUT NOT WHERE IT IS IN SETTLEMENT OF CLAIMS OF
OWNERSHIP TO SPECIFIED PROPERTY.  GOLDFISH V. GOLDFISH AND SCHNITZER V.
BUERGER, SUPRA.  THE PROVISIONS OF THE SEPARATION AGREEMENT AND THE
TRUST AGREEMENT HERE IN QUESTION SPECIFICALLY RELATE TO AND WERE
DESIGNED TO AFFORD SUPPORT AND MAINTENANCE FOR THE WIFE.  UNLIKE THE
PURPOSE OF THE TRUST AGREEMENT IN SCHNITZER V. BUERGER, SUPRA, THE
PURPOSE HERE APPARENTLY WAS NOT TO COMPOSE ANY CONTROVERSIES OVER THE
SECURITIES.  WE NEED NOT DECIDE WHETHER THE COURT RETAINED THE POWER TO
REQUIRE RESPONDENT TO MAKE ADDITIONAL PAYMENTS TO THE WIFE IN CASE,
SAY, ALL THE SECURITIES IN TRUST TURNED OUT TO BE WORTHLESS.  ALL WE DO
HOLD IS THAT RESPONDENT HAS NOT SHOWN BY "CLEAR AND CONVINCING PROOF"
THAT THE COURT LACKS THE POWER TO ADD TO HIS PERSONAL OBLIGATIONS IN
ANY SUCH CIRCUMSTANCES.  REVERSED. 

FN1 NO EXTENSION OF THE TIME OF PAYMENT OF PRINCIPAL OR INTEREST ON
THESE BONDS WAS TO BE MADE WITHOUT THE CONSENT OF THE WIFE AND WITHOUT
THE EXTENSION OF THE GUARANTEE OF RESPONDENT OR HIS PERSONAL
REPRESENTATIVE. 

FN2  EXCEPT ON DISCONTINUANCE OR DISMISSAL OF THE DIVORCE ACTION. 

FN3  IT WAS SO AMENDED THREE TIMES BUT IN RESPECTS NOT MATERIAL
HERE. 

MR. JUSTICE REED CONCURS IN THE RESULT FOR THE REASONS STATED IN THE
DISSENT IN HELVERING V. FULLER, ANTE, P. 76. 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS, AND MR. JUSTICE ROBERTS
ARE OF THE OPINION THAT THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
SHOULD BE AFFIRMED. 
..END :



THORNHILL V. ALABAMA, 310 U.S. 88 


NO. 514.  ARGUED FEBRUARY 29, 1940.  - DECIDED APRIL 22, 1940.  - 28
ALA. APP. 527 - 189 SO. 913, REVERSED. 


A STATUTE OF ALABAMA MAKES IT UNLAWFUL FOR ANY PERSON, "WITHOUT A JUST
CAUSE OR LEGAL EXCUSE," TO GO NEAR TO OR "LOITER" ABOUT ANY PLACE OF
LAWFUL BUSINESS, FOR THE PURPOSE OF, OR WITH THE INTENTION OF,
INFLUENCING OR INDUCING OTHER PERSONS NOT TO BUY FROM, DEAL WITH, OR BE
EMPLOYED AT SUCH PLACE OF BUSINESS; OR TO "PICKET" A PLACE OF LAWFUL
BUSINESS FOR THE PURPOSE OF IMPEDING, INTERFERING WITH, OR INJURING
SUCH BUSINESS.  AS CONSTRUED BY THE COURTS OF THE STATE, THE STATUTE
FORBIDS THE PUBLICIZING OF FACTS CONCERNING A LABOR DISPUTE, WHETHER BY
PRINTED SIGN, BY PAMPHLET, BY WORD OF MOUTH, OR OTHERWISE, IN THE
VICINITY OF THE BUSINESS INVOLVED; AND THIS, WITHOUT REGARD TO THE
NUMBER OF PERSONS ENGAGED IN SUCH ACTIVITY, THE PEACEFUL CHARACTER OF
THEIR CONDUCT, THE NATURE OF THE DISPUTE, OR THE ACCURACY OR RESTRAINT
OF THE LANGUAGE USED IN IMPARTING THE INFORMATION.  UPON A COMPLAINT
SUBSTANTIALLY IN THE WORDS OF THE STATUTE, AND UPON EVIDENCE OF
ACTIVITIES RELATED TO PICKETING OF A PLACE OF BUSINESS IN CONNECTION
WITH A LABOR DISPUTE, PETITIONER WAS CONVICTED OF "LOITERING AND
PICKETING AS CHARGED IN THE COMPLAINT."  THE STATUTE WAS CHALLENGED AS
VIOLATIVE OF FREEDOM OF SPEECH AND OF THE PRESS.  HELD: 

1.  FREEDOM OF SPEECH AND OF THE PRESS, SECURED BY THE FIRST
AMENDMENT AGAINST ABRIDGMENT BY THE UNITED STATES, IS SECURED TO ALL
PERSONS BY THE FOURTEENTH AMENDMENT AGAINST ABRIDGMENT BY THE STATES. 
P. 95. 

2.  WHEN ABRIDGMENT OF THE EFFECTIVE EXERCISE OF THE RIGHTS OF
FREEDOM OF SPEECH AND OF THE PRESS IS CLAIMED, IT IS INCUMBENT ON THE
COURTS TO "WEIGH THE CIRCUMSTANCES" AND "APPRAISE THE SUBSTANTIALITY OF
THE REASONS ADVANCED" IN SUPPORT OF THE CHALLENGED REGULATIONS.  P.
96. 

3.  THE STATUTE MUST BE JUDGED UPON ITS FACE.  P. 96. 

(A)  THE CHARGES WERE FRAMED IN THE WORDS OF THE STATUTE AND THE
FINDING WAS GENERAL; IT IS NOT NECESSARY TO CONSIDER WHETHER THE
EVIDENCE WOULD HAVE SUPPORTED A CONVICTION BASED UPON DIFFERENT AND
MORE PRECISE CHARGES.  P. 96. 

(B)  THE VERY EXISTENCE OF A PENAL STATUTE SUCH AS THAT HERE, WHICH
DOES NOT AIM SPECIFICALLY AT EVILS WITHIN THE ALLOWABLE AREA OF STATE
CONTROL, BUT SWEEPS WITHIN ITS AMBIT OTHER ACTIVITIES THAT IN ORDINARY
CIRCUMSTANCES CONSTITUTE AN EXERCISE OF FREEDOM OF SPEECH OR OF THE
PRESS, RESULTS IN A CONTINUOUS AND PERVASIVE RESTRAINT OF ALL FREEDOM
OF DISCUSSION THAT MIGHT REASONABLY BE REGARDED AS WITHIN ITS PURVIEW. 
ONE CONVICTED UNDER SUCH A STATUTE DOES NOT HAVE TO SUSTAIN THE BURDEN
OF SHOWING THAT THE STATE COULD NOT CONSTITUTIONALLY HAVE WRITTEN A
DIFFERENT AND SPECIFIC STATUTE COVERING THE PARTICULAR ACTIVITIES IN
WHICH HE IS SHOWN TO HAVE BEEN ENGAGED.  P. 97. 

(C)  WHERE REGULATIONS OF THE LIBERTY OF FREE DISCUSSION ARE
CONCERNED, THERE ARE SPECIAL REASONS FOR OBSERVING THE RULE THAT IT IS
THE STATUTE, AND NOT THE ACCUSATION OR THE EVIDENCE UNDER IT, WHICH
PRESCRIBES THE LIMITS OF PERMISSIBLE CONDUCT AND WARNS AGAINST
TRANSGRESSION.  P. 98. 

4.  THE STATUTE IS INVALID ON ITS FACE.  P. 101. 

(A)  FREEDOM OF SPEECH AND OF THE PRESS EMBRACES AT THE LEAST THE
LIBERTY TO DISCUSS PUBLICLY AND TRUTHFULLY ALL MATTERS OF PUBLIC
CONCERN WITHOUT PREVIOUS RESTRAINT OR FEAR OF SUBSEQUENT PUNISHMENT. 
P. 101. 

(B)  THE DISSEMINATION OF INFORMATION CONCERNING THE FACTS OF A LABOR
DISPUTE MUST BE REGARDED AS WITHIN THAT AREA OF FREE DISCUSSION WHICH
IS GUARANTEED BY THE CONSTITUTION.  P. 102. 

(C)  ALTHOUGH THE RIGHTS OF EMPLOYERS AND EMPLOYEES ARE SUBJECT TO
MODIFICATION OR QUALIFICATION IN THE PUBLIC INTEREST, IT DOES NOT
FOLLOW THAT THE STATE IN DEALING WITH THE EVILS ARISING FROM INDUSTRIAL
DISPUTES MAY IMPAIR THE EFFECTIVE EXERCISE OF THE RIGHT TO DISCUSS
FREELY INDUSTRIAL RELATIONS WHICH ARE MATTERS OF PUBLIC CONCERN.  P.
103. 

(D)  WHILE THE STATE MAY TAKE ADEQUATE STEPS TO PRESERVE THE PEACE
AND TO PROTECT THE PRIVACY, THE LIVES, AND THE PROPERTY OF ITS PEOPLE,
YET NO CLEAR AND PRESENT DANGER OF DESTRUCTION OF LIFE OR PROPERTY, OR
INVASION OF THE RIGHT OF PRIVACY, CAN BE THOUGHT TO BE INHERENT IN THE
ACTIVITIES OF EVERY PERSON WHO APPROACHES THE PREMISES OF AN EMPLOYER
AND PUBLICIZES THE FACTS OF A LABOR DISPUTE.  P. 105. 

(E)  THERE IS NOT HERE INVOLVED ANY QUESTION OF PICKETING EN MASSE,
OR OTHERWISE CONDUCTED, WHICH MIGHT OCCASION SUCH IMMINENT AND
AGGRAVATED DANGER TO THE COMMUNITY INTERESTS AS TO JUSTIFY A STATUTE
NARROWLY DRAWN TO COVER THE PRECISE SITUATION OUT OF WHICH THE DANGER
ARISES.  P. 105. 

(F)  THAT IT APPLIES ONLY WHEN THE PROSCRIBED ACTIVITIES ARE ENGAGED
IN AT THE SCENE OF A LABOR DISPUTE, CAN NOT JUSTIFY THE STATUTE.  P.
106. 

THORNHILL V. ALABAMA. 

CERTIORARI TO THE COURT OF APPEALS OF ALABAMA. 

CERTIORARI, 308 U.S. 547, TO REVIEW THE AFFIRMANCE OF A CONVICTION
UNDER A PENAL STATUTE OF ALABAMA.  THE STATE SUPREME COURT DENIED A
PETITION FOR CERTIORARI. 

FREEDOM OF SPEECH AND OF ASSEMBLY IS NOT AN ABSOLUTE RIGHT.  GITLOW
V. NEW YORK, 268 U.S. 652. 

PETITIONER WAS NOT CONVICTED FOR HIS WORDS ALONE.  HIS CONVICTION
RESTED UPON THE FACT THAT HE HAD GATHERED WITH OTHERS IN A PICKET LINE
FOR THE PURPOSE, NOT OF ADVANCING THE PICKETERS' INTERESTS, BUT OF
WILFULLY INJURING THE COMPANY. 

IF A PERSON SPEAKS IN SUPPORT OF HIS OWN RIGHTS AND FOR THE PURPOSE
OF ADVANCING HIS OWN CAUSE, THERE IS NO OFFENSE UNDER SEC. 3448.  NOR
IS ASSEMBLY FOR THE LAWFUL PURPOSE OF PEACEFUL ACTION PROHIBITED.  IF,
ON THE OTHER HAND, A MEMBER OF A PICKET SPEAKS FOR THE PURPOSE OF
INJURING ANOTHER OR IF THE PICKET ASSEMBLES UNLAWFULLY AND IN A
THREATENING MANNER, THE SPEAKING AND ASSEMBLING BECOME UNLAWFUL.  SEE
ROBERTSON V. BALDWIN, 165 U.S. 275, 281; GOMPERS V. BUCKS STOVE & RANGE
CO., 221 U.S. 418, 439. 

WHETHER PETITIONER WAS DENIED THE LIBERTIES GUARANTEED HIM BY THE
FOURTEENTH AMENDMENT MUST BE CONSTRUED IN THE LIGHT OF THE FACTS WHICH
APPEAR OF RECORD.  SCHENCK V. UNITED STATES, 249 U.S. 47, 52; AIKERS V.
WISCONSIN, 195 U.S. 194, 205, 206. 

PETITIONER WAS A MEMBER OF A PICKET LINE LOCATED VERY CLOSE TO THE
PLACE OF BUSINESS OF HIS FORMER EMPLOYER AND WAS A MEMBER OF A GROUP OF
PICKETERS CONSISTING OF A RELATIVELY LARGE NUMBER - CONSIDERING THE
LOCATION OF THE PICKET AND THE NUMBER OF EMPLOYEES OF THE PLANT.  IT
WAS NOT A "PEACEFUL PICKET" BUT AN OFFENSIVE AND UNJUSTIFIABLE
ANNOYANCE CALCULATED TO BRING ABOUT PUBLIC DISTURBANCE AND BREACHES OF
THE PEACE.  PETITIONER, BEING THE CHAMPION OF ONLY HIS OWN RIGHTS, CAN
NOT BE HEARD TO ASSAIL AS UNCONSTITUTIONAL A STATUTE WHICH DID NOT
PROHIBIT HIM FROM STRIKING, OR FROM PRESENTING TO OTHERS HIS SIDE OF
THE CONTROVERSY, BUT BARRED HIM ONLY FROM ACTS INHERENTLY WRONG. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

PETITIONER, BYRON THORNHILL, WAS CONVICTED IN THE CIRCUIT COURT OF
TUSCALOOSA COUNTY, ALABAMA, OF THE VIOLATION OF SEC. 3448 OF THE STATE
CODE OF 1923.  FN1  THE CODE SECTION READS AS FOLLOWS: 

"SECTION 3448.  LOITERING OR PICKETING FORBIDDEN.  - ANY PERSON OR
PERSONS, WHO, WITHOUT A JUST CAUSE OR LEGAL EXCUSE THEREFOR, GO NEAR TO
OR LOITER ABOUT THE PREMISES OR PLACE OF BUSINESS OF ANY OTHER PERSON,
FIRM, CORPORATION, OR ASSOCIATION OF PEOPLE, ENGAGED IN A LAWFUL
BUSINESS, FOR THE PURPOSE, OR WITH THE INTENT OF INFLUENCING, OR
INDUCING OTHER PERSONS NOT TO TRADE WITH, BUY FROM, SELL TO, HAVE
BUSINESS DEALINGS WITH, OR BE EMPLOYED BY SUCH PERSONS, FIRM,
CORPORATION, OR ASSOCIATION, OR WHO PICKET THE WORKS OR PLACE OF
BUSINESS OF SUCH OTHER PERSONS, FIRMS, CORPORATIONS, OR ASSOCIATIONS OF
PERSONS, FOR THE PURPOSE OF HINDERING, DELAYING, OR INTERFERING WITH OR
INJURING ANY LAWFUL BUSINESS OR ENTERPRISE OF ANOTHER, SHALL BE GUILTY
OF A MISDEMEANOR; BUT NOTHING HEREIN SHALL PREVENT ANY PERSON FROM
SOLICITING TRADE OR BUSINESS FOR A COMPETITIVE BUSINESS." 

THE COMPLAINT AGAINST PETITIONER, WHICH IS SET OUT IN THE MARGIN,
FN2  IS PHRASED SUBSTANTIALLY IN THE VERY WORDS OF THE STATUTE.  THE
FIRST AND SECOND COUNTS CHARGE THAT PETITIONER, WITHOUT JUST CAUSE OR
LEGAL EXCUSE, DID "GO NEAR TO OR LOITER ABOUT THE PREMISES" OF THE
BROWN WOOD PRESERVING COMPANY WITH THE INTENT OR PURPOSE OF INFLUENCING
OTHERS TO ADOPT ONE OF ENUMERATED COURSES OF CONDUCT.  IN THE THIRD
COUNT, THE CHARGE IS THAT PETITIONER "DID PICKET" THE WORKS OF THE
COMPANY "FOR THE PURPOSE OF HINDERING, DELAYING OR INTERFERING WITH OR
INJURING (ITS) LAWFUL BUSINESS."  PETITIONER DEMURRED TO THE COMPLAINT
ON THE GROUNDS, AMONG OTHERS, THAT SEC. 3448 WAS REPUGNANT TO THE
CONSTITUTION OF THE UNITED STATES IN THAT IT DEPRIVED HIM OF "THE RIGHT
OF PEACEFUL ASSEMBLAGE," "THE RIGHT OF FREEDOM OF SPEECH," AND "THE
RIGHT TO PETITION FOR REDRESS."  THE DEMURRER, SO FAR AS THE RECORD
SHOWS, WAS NOT RULED UPON, AND PETITIONER PLEADED NOT GUILTY.  THE
CIRCUIT COURT THEN PROCEEDED TO TRY THE CASE WITHOUT A JURY, ONE NOT
BEING ASKED FOR OR DEMANDED.  AT THE CLOSE OF THE CASE FOR THE STATE,
PETITIONER MOVED TO EXCLUDE ALL THE TESTIMONY TAKEN AT THE TRIAL ON THE
GROUND THAT SEC. 3448 WAS VIOLATIVE OF THE CONSTITUTION OF THE UNITED
STATES.  FN3  THE CIRCUIT COURT OVERRULED THE MOTION, FOUND PETITIONER
"GUILTY OF LOITERING AND PICKETING AS CHARGED IN THE COMPLAINT," AND
ENTERED JUDGMENT ACCORDINGLY.  THE JUDGMENT WAS AFFIRMED BY THE COURT
OF APPEALS, WHICH CONSIDERED THE CONSTITUTIONAL QUESTION AND SUSTAINED
THE SECTION ON THE AUTHORITY OF TWO PREVIOUS DECISIONS IN THE ALABAMA
COURTS.  FN4  O'ROURKE V. BIRMINGHAM, 27 ALA. APP. 133; 168 SO. 206,
CERT. DENIED, 232 ALA. 355; 168 SO. 209; HARDIE-TYNES MFG. CO. V.
CRUISE, 189 ALA. 66; 66 SO. 657.  A PETITION FOR CERTIORARI WAS DENIED
BY THE SUPREME COURT OF THE STATE.  THE CASE IS HERE ON CERTIORARI
GRANTED BECAUSE OF THE IMPORTANCE OF THE QUESTIONS PRESENTED.  308 U.S.
547. 

THE PROOFS CONSIST OF THE TESTIMONY OF TWO WITNESSES FOR THE
PROSECUTION.  FN5  IT APPEARS THAT PETITIONER ON THE MORNING OF HIS
ARREST WAS SEEN "IN COMPANY WITH SIX OR EIGHT OTHER MEN" "ON THE PICKET
LINE" AT THE PLANT OF THE BROWN WOOD PRESERVING COMPANY.  SOME WEEKS
PREVIOUSLY A STRIKE ORDER HAD BEEN ISSUED BY A UNION, APPARENTLY
AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, WHICH HAD AS MEMBERS
ALL BUT FOUR OF THE APPROXIMATELY ONE HUNDRED EMPLOYEES OF THE PLANT. 
SINCE THAT TIME A PICKET LINE WITH TWO PICKET POSTS OF SIX TO EIGHT MEN
EACH HAD BEEN MAINTAINED AROUND THE PLANT TWENTY-FOUR HOURS A DAY.  THE
PICKET POSTS APPEAR TO HAVE BEEN ON COMPANY PROPERTY, "ON A PRIVATE
ENTRANCE FOR EMPLOYEES, AND NOT ON ANY PUBLIC ROAD."  ONE WITNESS
EXPLAINED THAT PRACTICALLY ALL OF THE EMPLOYEES LIVE ON COMPANY
PROPERTY AND GET THEIR MAIL FROM A POST OFFICE ON COMPANY PROPERTY AND
THAT THE UNION HOLDS ITS MEETINGS ON COMPANY PROPERTY.  NO DEMAND WAS
EVER MADE UPON THE MEN NOT TO COME ON THE PROPERTY.  THERE IS NO
TESTIMONY INDICATING THE NATURE OF THE DISPUTE BETWEEN THE UNION AND
THE PRESERVING COMPANY, OR THE COURSE OF EVENTS WHICH LED TO THE
ISSUANCE OF THE STRIKE ORDER, OR THE NATURE OF THE EFFORTS FOR
CONCILIATION. 

THE COMPANY SCHEDULED A DAY FOR THE PLANT TO RESUME OPERATIONS.  ONE
OF THE WITNESSES, CLARENCE SIMPSON, WHO WAS NOT A MEMBER OF THE UNION,
ON REPORTING TO THE PLANT ON THE DAY INDICATED, WAS APPROACHED BY
PETITIONER WHO TOLD HIM THAT "THEY WERE ON STRIKE AND DID NOT WANT
ANYBODY TO GO UP THERE TO WORK."  NONE OF THE OTHER EMPLOYEES SAID
ANYTHING TO SIMPSON, WHO TESTIFIED:  "NEITHER MR. THORNHILL NOR ANY
OTHER EMPLOYEE THREATENED ME ON THE OCCASION TESTIFIED TO.  MR.
THORNHILL APPROACHED ME IN A PEACEFUL MANNER, AND DID NOT PUT ME IN
FEAR; HE DID NOT APPEAR TO BE MAD."  "I THEN TURNED AND WENT BACK TO
THE HOUSE, AND DID NOT GO TO WORK."  THE OTHER WITNESS, J. M. WALDEN,
TESTIFIED:  "AT THE TIME MR. THORNHILL AND CLARENCE SIMPSON WERE
TALKING TO EACH OTHER, THERE WAS NO ONE ELSE PRESENT, AND I HEARD NO
HARSH WORDS AND SAW NOTHING THREATENING IN THE MANNER OF EITHER MAN." 
FN6  FOR ENGAGING IN SOME OR ALL OF THESE ACTIVITIES, PETITIONER WAS
ARRESTED, CHARGED, AND CONVICTED AS DESCRIBED. 

FIRST.  THE FREEDOM OF SPEECH AND OF THE PRESS, WHICH ARE SECURED BY
THE FIRST AMENDMENT AGAINST ABRIDGMENT BY THE UNITED STATES, ARE AMONG
THE FUNDAMENTAL PERSONAL RIGHTS AND LIBERTIES WHICH ARE SECURED TO ALL
PERSONS BY THE FOURTEENTH AMENDMENT AGAINST ABRIDGMENT BY A STATE. 
FN7 

THE SAFEGUARDING OF THESE RIGHTS TO THE ENDS THAT MEN MAY SPEAK AS
THEY THINK ON MATTERS VITAL TO THEM AND THAT FALSEHOODS MAY BE EXPOSED
THROUGH THE PROCESSES OF EDUCATION AND DISCUSSION IS ESSENTIAL TO FREE
GOVERNMENT.  THOSE WHO WON OUR INDEPENDENCE HAD CONFIDENCE IN THE POWER
OF FREE AND FEARLESS REASONING AND COMMUNICATION OF IDEAS TO DISCOVER
AND SPREAD POLITICAL AND ECONOMIC TRUTH.  NOXIOUS DOCTRINES IN THOSE
FIELDS MAY BE REFUTED AND THEIR EVIL AVERTED BY THE COURAGEOUS EXERCISE
OF THE RIGHT OF FREE DISCUSSION.  ABRIDGMENT OF FREEDOM OF SPEECH AND
OF THE PRESS, HOWEVER, IMPAIRS THOSE OPPORTUNITIES FOR PUBLIC EDUCATION
THAT ARE ESSENTIAL TO EFFECTIVE EXERCISE OF THE POWER OF CORRECTING
ERROR THROUGH THE PROCESSES OF POPULAR GOVERNMENT.  COMPARE UNITED
STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 152-153N.  MERE
LEGISLATIVE PREFERENCE FOR ONE RATHER THAN ANOTHER MEANS FOR COMBATTING
SUBSTANTIVE EVILS, THEREFORE, MAY WELL PROVE AN INADEQUATE FOUNDATION
ON WHICH TO REST REGULATIONS WHICH ARE AIMED AT OR IN THEIR OPERATION
DIMINISH THE EFFECTIVE EXERCISE OF RIGHTS SO NECESSARY TO THE
MAINTENANCE OF DEMOCRATIC INSTITUTIONS.  IT IS IMPERATIVE THAT, WHEN
THE EFFECTIVE EXERCISE OF THESE RIGHTS IS CLAIMED TO BE ABRIDGED, THE
COURTS SHOULD "WEIGH THE CIRCUMSTANCES" AND "APPRAISE THE
SUBSTANTIALITY OF THE REASONS ADVANCED" IN SUPPORT OF THE CHALLENGED
REGULATIONS.  SCHNEIDER V. STATE, 308 U.S. 147, 161, 162. 

SECOND.  THE SECTION IN QUESTION MUST BE JUDGED UPON ITS FACE. 

THE FINDING AGAINST PETITIONER WAS A GENERAL ONE.  IT DID NOT SPECIFY
THE TESTIMONY UPON WHICH IT RESTED.  FN8  THE CHARGES WERE FRAMED IN
THE WORDS OF THE STATUTE AND SO MUST BE GIVEN A LIKE CONSTRUCTION.  THE
COURTS BELOW EXPRESSED NO INTENTION OF NARROWING THE CONSTRUCTION PUT
UPON THE STATUTE BY PRIOR STATE DECISIONS.  FN9  IN THESE CIRCUMSTANCE,
THERE IS NO OCCASION TO GO BEHIND THE FACE OF THE STATUTE OR OF THE
COMPLAINT FOR THE PURPOSE OF DETERMINING WHETHER THE EVIDENCE, TOGETHER
WITH THE PERMISSIBLE INFERENCES TO BE DRAWN FROM IT, COULD EVER SUPPORT
A CONVICTION FOUNDED UPON DIFFERENT AND MORE PRECISE CHARGES. 
"CONVICTION UPON A CHARGE NOT MADE WOULD BE SHEER DENIAL OF DUE
PROCESS."  DE JONGE V. OREGON, 299 U.S. 353, 362; STROMBERG V.
CALIFORNIA, 283 U.S. 359, 367-368.  THE STATE URGES THAT PETITIONER MAY
NOT COMPLAIN OF THE DEPRIVATION OF ANY RIGHTS BUT HIS OWN.  IT WOULD
NOT FOLLOW THAT ON THIS RECORD PETITIONER COULD NOT COMPLAIN OF THE
SWEEPING REGULATIONS HERE CHALLENGED. 

THERE IS A FURTHER REASON FOR TESTING THE SECTION ON ITS FACE.  PROOF
OF AN ABUSE OF POWER IN THE PARTICULAR CASE HAS NEVER BEEN DEEMED A
REQUISITE FOR ATTACK ON THE CONSTITUTIONALITY OF A STATUTE PURPORTING
TO LICENSE THE DISSEMINATION OF IDEAS.  SCHNEIDER V. STATE, 308 U.S.
147, 162-165; HAGUE V. C.I.O., 307 U.S. 496, 516; LOVELL V. GRIFFIN,
303 U.S. 444, 451.  THE CASES WHEN INTERPRETED IN THE LIGHT OF THEIR
FACTS INDICATE THAT THE RULE IS NOT BASED UPON ANY ASSUMPTION THAT
APPLICATION FOR THE LICENSE WOULD BE REFUSED OR WOULD RESULT IN THE
IMPOSITION OF OTHER UNLAWFUL REGULATIONS.  FN10  RATHER IT DERIVES FROM
AN APPRECIATION OF THE CHARACTER OF THE EVIL INHERENT IN A LICENSING
SYSTEM.  THE POWER OF THE LICENSOR AGAINST WHICH JOHN MILTON DIRECTED
HIS ASSAULT BY HIS "APPEAL FOR THE LIBERTY OF UNLICENSED PRINTING" IS
PERNICIOUS NOT MERELY BY REASON OF THE CENSURE OF PARTICULAR COMMENTS
BUT BY REASON OF THE THREAT TO CENSURE COMMENTS ON MATTERS OF PUBLIC
CONCERN.  IT IS NOT MERELY THE SPORADIC ABUSE OF POWER BY THE CENSOR
BUT THE PERVASIVE THREAT INHERENT IN ITS VERY EXISTENCE THAT
CONSTITUTES THE DANGER TO FREEDOM OF DISCUSSION.  SEE NEAR V.
MINNESOTA, 283 U.S. 697, 713.  ONE WHO MIGHT HAVE HAD A LICENSE FOR THE
ASKING MAY THEREFORE CALL INTO QUESTION THE WHOLE SCHEME OF LICENSING
WHEN HE IS PROSECUTED FOR FAILURE TO PROCURE IT.  LOVELL V. GRIFFIN,
303 U.S. 444; HAGUE V. C.I.O., 307 U.S. 496.  A LIKE THREAT IS INHERENT
IN A PENAL STATUTE, LIKE THAT IN QUESTION HERE, WHICH DOES NOT AIM
SPECIFICALLY AT EVILS WITHIN THE ALLOWABLE AREA OF STATE CONTROL BUT,
ON THE CONTRARY, SWEEPS WITHIN ITS AMBIT OTHER ACTIVITIES THAT IN
ORDINARY CIRCUMSTANCES CONSTITUTE AN EXERCISE OF FREEDOM OF SPEECH OR
OF THE PRESS.  THE EXISTENCE OF SUCH A STATUTE, WHICH READILY LENDS
ITSELF TO HARSH AND DISCRIMINATORY ENFORCEMENT BY LOCAL PROSECUTING
OFFICIALS, AGAINST PARTICULAR GROUPS DEEMED TO MERIT THEIR DISPLEASURE,
RESULTS IN A CONTINUOUS AND PERVASIVE RESTRAINT ON ALL FREEDOM OF
DISCUSSION THAT MIGHT REASONABLY BE REGARDED AS WITHIN ITS PURVIEW. 
FN11  IT IS NOT ANY LESS EFFECTIVE OR, IF THE RESTRAINT IS NOT
PERMISSIBLE, LESS PERNICIOUS THAN THE RESTRAINT ON FREEDOM OF
DISCUSSION IMPOSED BY THE THREAT OF CENSORSHIP.  FN12  AN ACCUSED,
AFTER ARREST AND CONVICTION UNDER SUCH A STATUTE, DOES NOT HAVE TO
SUSTAIN THE BURDEN OF DEMONSTRATING THAT THE STATE COULD NOT
CONSTITUTIONALLY HAVE WRITTEN A DIFFERENT AND SPECIFIC STATUTE COVERING
HIS ACTIVITIES AS DISCLOSED BY THE CHARGE AND THE EVIDENCE INTRODUCED
AGAINST HIM.  SCHNEIDER V. STATE, 308 U.S. 147, 155, 162-163.  WHERE
REGULATIONS OF THE LIBERTY OF FREE DISCUSSION ARE CONCERNED, THERE ARE
SPECIAL REASONS FOR OBSERVING THE RULE THAT IT IS THE STATUTE, AND NOT
THE ACCUSATION OR THE EVIDENCE UNDER IT, WHICH PRESCRIBES THE LIMITS OF
PERMISSIBLE CONDUCT AND WARNS AGAINST TRANSGRESSION.  STROMBERG V.
CALIFORNIA, 283 U.S. 359, 368; SCHNEIDER V. STATE, 308 U.S. 147, 155,
162-163.  COMPARE LANZETTA V. NEW JERSEY, 306 U.S. 451.    THIRD.
SINGLE INDIVIDUAL FROM WALKING SLOWLY AND PEACEFULLY BACK AND FORTH ON
THE PUBLIC SIDEWALK IN FRONT OF THE PREMISES OF AN EMPLOYER, WITHOUT
SPEAKING TO ANYONE, CARRYING A SIGN OR PLACARD ON A STAFF ABOVE HIS
HEAD STATING ONLY THE FACT THAT THE EMPLOYER DID NOT EMPLOY UNION MEN
AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR; FN13  THE PURPOSE OF
THE DESCRIBED ACTIVITY WAS CONCEDEDLY TO ADVISE CUSTOMERS AND
PROSPECTIVE CUSTOMERS OF THE RELATIONSHIP EXISTING BETWEEN THE EMPLOYER
AND ITS EMPLOYEES AND THEREBY TO INDUCE SUCH CUSTOMERS NOT TO PATRONIZE
THE EMPLOYER.  O'ROURKE V. BIRMINGHAM, 27 ALA. APP. 133; 168 SO. 206,
CERT. DENIED, 232 ALA. 355; 168 SO. 209.  FN14  THE STATUTE AS THUS
AUTHORITATIVELY CONSTRUED AND APPLIED LEAVES ROOM FOR NO EXCEPTIONS
BASED UPON EITHER THE NUMBER OF PERSONS ENGAGED IN THE PROSCRIBED
ACTIVITY, THE PEACEFUL CHARACTER OF THEIR DEMEANOR, THE NATURE OF THEIR
DISPUTE WITH AN EMPLOYER, OR THE RESTRAINED CHARACTER AND THE
ACCURATENESS OF THE TERMINOLOGY USED IN NOTIFYING THE PUBLIC OF THE
FACTS OF THE DISPUTE. 

THE NUMEROUS FORMS OF CONDUCT PROSCRIBED BY SEC. 3448 ARE SUBSUMED
UNDER TWO OFFENSES:  THE FIRST EMBRACES THE ACTIVITIES OF ALL WHO
"WITHOUT JUST CAUSE OR LEGAL EXCUSE" "GO NEAR TO OR LOITER ABOUT THE
PREMISES" OF ANY PERSON ENGAGED IN A LAWFUL BUSINESS FOR THE PURPOSE OF
INFLUENCING OR INDUCING OTHERS TO ADOPT ANY OF CERTAIN ENUMERATED
COURSES OF ACTION; THE SECOND, ALL WHO "PICKET" THE PLACE OF BUSINESS
OF ANY SUCH PERSON "FOR THE PURPOSE OF HINDERING, DELAYING OR
INTERFERING WITH OR INJURING ANY LAWFUL BUSINESS OR ENTERPRISE OF
ANOTHER."  FN15  IT IS APPARENT THAT ONE OR THE OTHER OF THE OFFENSES
COMPREHENDS EVERY PRACTICABLE METHOD WHEREBY THE FACTS OF A LABOR
DISPUTE MAY BE PUBLICIZED IN THE VICINITY OF THE PLACE OF BUSINESS OF
AN EMPLOYER.  THE PHRASE "WITHOUT JUST CAUSE OR LEGAL EXCUSE" DOES NOT
IN ANY EFFECTIVE MANNER RESTRICT THE BREADTH OF THE REGULATION; THE
WORDS THEMSELVES HAVE NO ASCERTAINABLE MEANING EITHER INHERENT OR
HISTORICAL.  COMPARE LANZETTA V. NEW JERSEY, 306 U.S. 451, 453-455. 
FN16  THE COURSES OF ACTION, LISTED UNDER THE FIRST OFFENSE, WHICH AN
ACCUSED - INCLUDING AN EMPLOYEE - MAY NOT URGE OTHERS TO TAKE,
COMPREHENDS THOSE WHICH IN MANY INSTANCES WOULD NORMALLY RESULT FROM
MERELY PUBLICIZING, WITHOUT ANNOYANCE OR THREAT OF ANY KIND, THE FACTS
OF A LABOR DISPUTE.  AN INTENTION TO HINDER, DELAY OR INTERFERE WITH A
LAWFUL BUSINESS, WHICH IS AN ELEMENT OF THE SECOND OFFENSE, LIKEWISE
CAN BE PROVED MERELY BY SHOWING THAT OTHERS REACTED IN A WAY NORMALLY
EXPECTABLE OF SOME UPON LEARNING THE FACTS OF A DISPUTE.  FN17  THE
VAGUE CONTOURS OF THE TERM "PICKET" ARE NOWHERE DELINEATED.  FN18
EMPLOYEES OR OTHERS, ACCORDINGLY, MAY BE FOUND TO BE WITHIN THE PURVIEW
OF THE TERM AND CONVICTED FOR ENGAGING IN ACTIVITIES IDENTICAL WITH
THOSE PROSCRIBED BY THE FIRST OFFENSE.  IN SUM, WHATEVER THE MEANS USED
TO PUBLICIZE THE FACTS OF A LABOR DISPUTE, WHETHER BY PRINTED SIGN, BY
PAMPHLET, BY WORD OF MOUTH OR OTHERWISE, ALL SUCH ACTIVITY WITHOUT
EXCEPTION IS WITHIN THE INCLUSIVE PROHIBITION OF THE STATUTE SO LONG AS
IT OCCURS IN THE VICINITY OF THE SCENE OF THE DISPUTE. 

FOURTH.  WE THINK THAT SEC. 3448 IS INVALID ON ITS FACE. 

THE FREEDOM OF SPEECH AND OF THE PRESS GUARANTEED BY THE CONSTITUTION
EMBRACES AT THE LEAST THE LIBERTY TO DISCUSS PUBLICLY AND TRUTHFULLY
ALL MATTERS OF PUBLIC CONCERN WITHOUT PREVIOUS RESTRAINT OR FEAR OF
SUBSEQUENT PUNISHMENT.  FN19  THE EXIGENCIES OF THE COLONIAL PERIOD AND
THE EFFORTS TO SECURE FREEDOM FROM OPPRESSIVE ADMINISTRATION DEVELOPED
A BROADENED CONCEPTION OF THESE LIBERTIES AS ADEQUATE TO SUPPLY THE
PUBLIC NEED FOR INFORMATION AND EDUCATION WITH RESPECT TO THE
SIGNIFICANT ISSUES OF THE TIMES.  FN20  THE CONTINENTAL CONGRESS IN ITS
LETTER SENT TO THE INHABITANTS OF QUEBEC (OCTOBER 26, 1774) REFERRED TO
THE "FIVE GREAT RIGHTS" AND SAID:  "THE LAST RIGHT WE SHALL MENTION,
REGARDS THE FREEDOM OF THE PRESS.  THE IMPORTANCE OF THIS CONSISTS,
BESIDES THE ADVANCEMENT OF TRUTH, SCIENCE, MORALITY, AND ARTS IN
GENERAL, IN ITS DIFFUSION OF LIBERAL SENTIMENTS ON THE ADMINISTRATION
OF GOVERNMENT, ITS READY COMMUNICATION OF THOUGHTS BETWEEN SUBJECTS,
AND ITS CONSEQUENTIAL PROMOTION OF UNION AMONG THEM, WHEREBY OPPRESSIVE
OFFICERS ARE ASHAMED OR INTIMIDATED, INTO MORE HONOURABLE AND JUST
MODES OF CONDUCTING AFFAIRS."  JOURNAL OF THE CONTINENTAL CONGRESS,
1904 ED., VOL. I, PP. 104, 108.  FREEDOM OF DISCUSSION, IF IT WOULD
FULFILL ITS HISTORIC FUNCTION IN THIS NATION, MUST EMBRACE ALL ISSUES
ABOUT WHICH INFORMATION IS NEEDED OR APPROPRIATE TO ENABLE THE MEMBERS
OF SOCIETY TO COPE WITH THE EXIGENCIES OF THEIR PERIOD. 

IN THE CIRCUMSTANCES OF OUR TIMES THE DISSEMINATION OF INFORMATION
CONCERNING THE FACTS OF A LABOR DISPUTE MUST BE REGARDED AS WITHIN THAT
AREA OF FREE DISCUSSION THAT IS GUARANTEED BY THE CONSTITUTION.  HAGUE
V. C.I.O., 307 U.S. 496; SCHNEIDER V. STATE, 308 U.S. 147, 155, 162
63.  SEE SENN V. TILE LAYERS UNION, 301 U.S. 468, 478.  IT IS
RECOGNIZED NOW THAT SATISFACTORY HOURS AND WAGES AND WORKING CONDITIONS
IN INDUSTRY AND A BARGAINING POSITION WHICH MAKES THESE POSSIBLE HAVE
AN IMPORTANCE WHICH IS NOT LESS THAN THE INTERESTS OF THOSE IN THE
BUSINESS OR INDUSTRY DIRECTLY CONCERNED.  THE HEALTH OF THE PRESENT
GENERATION AND OF THOSE AS YET UNBORN MAY DEPEND ON THESE MATTERS, AND
THE PRACTICES IN A SINGLE FACTORY MAY HAVE ECONOMIC REPERCUSSIONS UPON
A WHOLE REGION AND AFFECT WIDESPREAD SYSTEMS OF MARKETING.  THE MEREST
GLANCE AT STATE AND FEDERAL LEGISLATION ON THE SUBJECT DEMONSTRATES THE
FORCE OF THE ARGUMENT THAT LABOR RELATIONS ARE NOT MATTERS OF MERE
LOCAL OR PRIVATE CONCERN.  FREE DISCUSSION CONCERNING THE CONDITIONS IN
INDUSTRY AND THE CAUSES OF LABOR DISPUTES APPEARS TO US INDISPENSABLE
TO THE EFFECTIVE AND INTELLIGENT USE OF THE PROCESSES OF POPULAR
GOVERNMENT TO SHAPE THE DESTINY OF MODERN INDUSTRIAL SOCIETY.  THE
ISSUES RAISED BY REGULATIONS, SUCH AS ARE CHALLENGED HERE, INFRINGING
UPON THE RIGHT OF EMPLOYEES EFFECTIVELY TO INFORM THE PUBLIC OF THE
FACTS OF A LABOR DISPUTE ARE PART OF THIS LARGER PROBLEM.  WE CONCUR IN
THE OBSERVATION OF MR. JUSTICE BRANDEIS, SPEAKING FOR THE COURT IN
SENN'S CASE (301 U.S. AT 478): "MEMBERS OF A UNION MIGHT, WITHOUT
SPECIAL STATUTORY AUTHORIZATION BY A STATE, MAKE KNOWN THE FACTS OF A
LABOR DISPUTE, FOR FREEDOM OF SPEECH IS GUARANTEED BY THE FEDERAL
CONSTITUTION." 

IT IS TRUE THAT THE RIGHTS OF EMPLOYERS AND EMPLOYEES TO CONDUCT
THEIR ECONOMIC AFFAIRS AND TO COMPETE WITH OTHERS FOR A SHARE IN THE
PRODUCTS OF INDUSTRY ARE SUBJECT TO MODIFICATION OR QUALIFICATION IN
THE INTERESTS OF THE SOCIETY IN WHICH THEY EXIST.  FN21  THIS IS BUT AN
INSTANCE OF THE POWER OF THE STATE TO SET THE LIMITS OF PERMISSIBLE
CONTEST OPEN TO INDUSTRIAL COMBATANTS.  SEE MR. JUSTICE BRANDEIS IN 254
U.S. AT 488.  IT DOES NOT FOLLOW THAT THE STATE IN DEALING WITH THE
EVILS ARISING FROM INDUSTRIAL DISPUTES MAY IMPAIR THE EFFECTIVE
EXERCISE OF THE RIGHT TO DISCUSS FREELY INDUSTRIAL RELATIONS WHICH ARE
MATTERS OF PUBLIC CONCERN.  A CONTRARY CONCLUSION COULD BE USED TO
SUPPORT ABRIDGMENT OF FREEDOM OF SPEECH AND OF THE PRESS CONCERNING
ALMOST EVERY MATTER OF IMPORTANCE TO SOCIETY. 

THE RANGE OF ACTIVITIES PROSCRIBED BY SEC. 3448, WHETHER
CHARACTERIZED AS PICKETING OR LOITERING OR OTHERWISE, EMBRACES NEARLY
EVERY PRACTICABLE, EFFECTIVE MEANS WHEREBY THOSE INTERESTED - INCLUDING
THE EMPLOYEES DIRECTLY AFFECTED - MAY ENLIGHTEN THE PUBLIC ON THE
NATURE AND CAUSES OF A LABOR DISPUTE.  THE SAFEGUARDING OF THESE MEANS
IS ESSENTIAL TO THE SECURING OF AN INFORMED AND EDUCATED PUBLIC OPINION
WITH RESPECT TO A MATTER WHICH IS OF PUBLIC CONCERN.  IT MAY BE THAT
EFFECTIVE EXERCISE OF THE MEANS OF ADVANCING PUBLIC KNOWLEDGE MAY
PERSUADE SOME OF THOSE REACHED TO REFRAIN FROM ENTERING INTO
ADVANTAGEOUS RELATIONS WITH THE BUSINESS ESTABLISHMENT WHICH IS THE
SCENE OF THE DISPUTE.  EVERY EXPRESSION OF OPINION ON MATTERS THAT ARE
IMPORTANT HAS THE POTENTIALITY OF INDUCING ACTION IN THE INTERESTS OF
ONE RATHER THAN ANOTHER GROUP IN SOCIETY.  BUT THE GROUP IN POWER AT
ANY MOMENT MAY NOT IMPOSE PENAL SANCTIONS ON PEACEFUL AND TRUTHFUL
DISCUSSION OF MATTERS OF PUBLIC INTEREST MERELY ON A SHOWING THAT
OTHERS MAY THEREBY BE PERSUADED TO TAKE ACTION INCONSISTENT WITH ITS
INTERESTS.  ABRIDGMENT OF THE LIBERTY OF SUCH DISCUSSION CAN BE
JUSTIFIED ONLY WHERE THE CLEAR DANGER OF SUBSTANTIVE EVILS ARISES UNDER
CIRCUMSTANCES AFFORDING NO OPPORTUNITY TO TEST THE MERITS OF IDEAS BY
COMPETITION FOR ACCEPTANCE IN THE MARKET OF PUBLIC OPINION.  FN22  WE
HOLD THAT THE DANGER OF INJURY TO AN INDUSTRIAL CONCERN IS NEITHER SO
SERIOUS NOR SO IMMINENT AS TO JUSTIFY THE SWEEPING PROSCRIPTION OF
FREEDOM OF DISCUSSION EMBODIED IN SEC. 3448. 

THE STATE URGES THAT THE PURPOSE OF THE CHALLENGED STATUTE IS THE
PROTECTION OF THE COMMUNITY FROM THE VIOLENCE AND BREACHES OF THE
PEACE, WHICH, IT ASSERTS, ARE THE CONCOMITANTS OF PICKETING.  THE POWER
AND THE DUTY OF THE STATE TO TAKE ADEQUATE STEPS TO PRESERVE THE PEACE
AND TO PROTECT THE PRIVACY, THE LIVES, AND THE PROPERTY OF ITS
RESIDENTS CANNOT BE DOUBTED.  BUT NO CLEAR AND PRESENT DANGER OF
DESTRUCTION OF LIFE OR PROPERTY, OR INVASION OF THE RIGHT OF PRIVACY,
OR BREACH OF THE PEACE CAN BE THOUGHT TO BE INHERENT IN THE ACTIVITIES
OF EVERY PERSON WHO APPROACHES THE PREMISES OF AN EMPLOYER AND
PUBLICIZES THE FACTS OF A LABOR DISPUTE INVOLVING THE LATTER.  WE ARE
NOT NOW CONCERNED WITH PICKETING EN MASSE OR OTHERWISE CONDUCTED WHICH
MIGHT OCCASION SUCH IMMINENT AND AGGRAVATED DANGER TO THESE INTERESTS
AS TO JUSTIFY A STATUTE NARROWLY DRAWN TO COVER THE PRECISE SITUATION
GIVING RISE TO THE DANGER.  COMPARE AMERICAN FOUNDRIES V. TRI-CITY
COUNCIL, 257 U.S. 184, 205.  SECTION 3448 IN QUESTION HERE DOES NOT AIM
SPECIFICALLY AT SERIOUS ENCROACHMENTS ON THESE INTERESTS AND DOES NOT
EVIDENCE ANY SUCH CARE IN BALANCING THESE INTERESTS AGAINST THE
INTEREST OF THE COMMUNITY AND THAT OF THE INDIVIDUAL IN FREEDOM OF
DISCUSSION ON MATTERS OF PUBLIC CONCERN. 

IT IS NOT ENOUGH TO SAY THAT SEC. 3448 IS LIMITED OR RESTRICTED IN
ITS APPLICATION TO SUCH ACTIVITY AS TAKES PLACE AT THE SCENE OF THE
LABOR DISPUTE.  "(THE) STREETS ARE NATURAL AND PROPER PLACES FOR THE
DISSEMINATION OF INFORMATION AND OPINION; AND ONE IS NOT TO HAVE THE
EXERCISE OF HIS LIBERTY OF EXPRESSION IN APPROPRIATE PLACES ABRIDGED ON
THE PLEA THAT IT MAY BE EXERCISED IN SOME OTHER PLACE."  SCHNEIDER V.
STATE, 308 U.S. 147, 161, 163; HAGUE V. C.I.O., 307 U.S. 496, 515-16. 
FN23  THE DANGER OF BREACH OF THE PEACE OR SERIOUS INVASION OF RIGHTS
OF PROPERTY OR PRIVACY AT THE SCENE OF A LABOR DISPUTE IS NOT
SUFFICIENTLY IMMINENT IN ALL CASES TO WARRANT THE LEGISLATURE IN
DETERMINING THAT SUCH PLACE IS NOT APPROPRIATE FOR THE RANGE OF
ACTIVITIES OUTLAWED BY SEC. 3448.  REVERSED. 

FN1  PETITIONER WAS FIRST CHARGED AND CONVICTED IN THE INFERIOR COURT
OF TUSCALOOSA COUNTY AND SENTENCED TO IMPRISONMENT FOR FIFTY-NINE DAYS
IN DEFAULT OF PAYMENT OF A FINE OF ONE HUNDRED DOLLARS AND COSTS.  UPON
APPEAL TO THE CIRCUIT COURT, ANOTHER COMPLAINT WAS FILED AND A TRIAL DE
NOVO WAS HAD PURSUANT TO THE LOCAL PRACTICE.  THE CIRCUIT COURT
SENTENCED PETITIONER, UPON HIS CONVICTION, TO IMPRISONMENT FOR SEVENTY
THREE DAYS IN DEFAULT OF PAYMENT OF A FINE OF ONE HUNDRED DOLLARS AND
COSTS. 

FN2  "1.  THE STATE OF ALABAMA, BY ITS SOLICITOR, COMPLAINS OF BYRON
THORNHILL THAT, WITHIN TWELVE MONTHS BEFORE THE COMMENCEMENT OF THIS
PROSECUTION HE DID WITHOUT JUST CAUSE OR LEGAL EXCUSE THEREFOR, GO NEAR
TO OR LOITER ABOUT THE PREMISES OR PLACE OF BUSINESS OF ANOTHER PERSON,
FIRM, CORPORATION, OR ASSOCIATION OF PEOPLE, TO-WIT:  THE BROWN WOOD
PRESERVING COMPANY, INC., A CORPORATION, ENGAGED IN A LAWFUL BUSINESS,
FOR THE PURPOSE OR WITH THE INTENT OF INFLUENCING OR INDUCING OTHER
PERSONS NOT TO TRADE WITH, BUY FROM, SELL TO, HAVE BUSINESS DEALINGS
WITH, OR BE EMPLOYED BY THE SAID BROWN WOOD PRESERVING COMPANY, INC., A
CORPORATION, FOR THE PURPOSE OF HINDERING, DELAYING, OR INTERFERING
WITH OR INJURING THE LAWFUL BUSINESS OR ENTERPRISE OF THE SAID BROWN
WOOD PRESERVING COMPANY, INC., A CORPORATION. 

"2.  (THE SECOND COUNT IS IDENTICAL WITH THE FIRST, EXCEPT THAT THE
LAST CLAUSE, CHARGING A PURPOSE TO HINDER, DELAY, OR INTERFERE, ETC.,
WITH THE LAWFUL BUSINESS OF THE PRESERVING COMPANY, IS OMITTED.) 

"3.  THE STATE OF ALABAMA, BY ITS SOLICITOR, COMPLAINS OF BYRON
THORNHILL THAT, WITHIN TWELVE MONTHS BEFORE THE COMMENCEMENT OF THIS
PROSECUTION HE DID PICKET THE WORKS OR PLACE OF BUSINESS OF ANOTHER
PERSON, FIRM, CORPORATION, OR ASSOCIATION OF PEOPLE, TO-WIT, THE BROWN
WOOD PRESERVING COMPANY, INC., A CORPORATION, FOR THE PURPOSE OF
HINDERING, DELAYING, OR INTERFERING WITH OR INJURING THE LAWFUL
BUSINESS OR ENTERPRISE OF THE SAID BROWN WOOD PRESERVING COMPANY, INC.,
A CORPORATION." 

FN3  THE PETITIONER ALSO MOVED TO EXCLUDE THE TESTIMONY ON THE GROUND
THAT IT WAS INSUFFICIENT TO SUSTAIN A CONVICTION.  UPON BEING ASKED BY
THE COURT WHETHER HE INSISTED ON THIS GROUND, HOWEVER, COUNSEL FOR
PETITIONER STATED THAT THE ONLY QUESTION HE WANTED TO RAISE WAS THE
CONSTITUTIONALITY OF THE STATUTE. 

FN4  THE COURT OF APPEALS STATED:  "IT SEEMS CLEAR ENOUGH THAT THE
EVIDENCE ADDUCED UPON THE TRIAL WAS SUFFICIENT TO BRING APPELLANT'S
ACTIONS, FOR WHICH HE WAS BEING PROSECUTED, WITHIN THE PURVIEW OF THE
PROHIBITION IMPLIED IN SAID STATUTE. 

"SO, AS CONCEDED BY ABLE COUNSEL HERE REPRESENTING APPELLANT, 'THE
ONLY QUESTION INVOLVED IN THIS APPEAL IS THE CONSTITUTIONALITY VEL NON
OF SECTION 3448 OF THE CODE OF ALABAMA OF 1923.'" 

FN5  NO EVIDENCE WAS OFFERED ON BEHALF OF PETITIONER.    FN6  SIMPSON
AND WALDEN ARE NOT IN ENTIRE ACCORD WITH RESPECT TO THE NUMBER OF
PERSONS PRESENT DURING THE CONVERSATION BETWEEN SIMPSON AND
PETITIONER.  A POSSIBLE INFERENCE FROM SIMPSON'S TESTIMONY, CONSIDERED
BY ITSELF, IS THAT PETITIONER WAS IN THE COMPANY OF SIX OR EIGHT OTHERS
WHEN THE CONVERSATION TOOK PLACE.  THIS DIFFERENCE IS NOT MATERIAL IN
OUR VIEW OF THE CASE. 

FN7  SCHNEIDER V. STATE, 308 U.S. 147, 160; LOVELL V. GRIFFIN, 303
U.S. 444, 450; DE JONGE V. OREGON, 299 U.S. 353; GROSJEAN V. AMERICAN
PRESS CO., 297 U.S. 233, 244; NEAR V. MINNESOTA, 283 U.S. 697, 707;
STROMBERG V. CALIFORNIA, 283 U.S. 359, 368; GITLOW V. NEW YORK, 268
U.S. 652, 666.  SEE PALKO V. CONNECTICUT, 302 U.S. 319, 326-327.    FN8
THE TRIAL COURT MERELY FOUND PETITIONER "GUILTY OF LOITERING AND
PICKETING AS CHARGED IN THE COMPLAINT." 

FN9  THE COURT OF APPEALS DETERMINED MERELY THAT THE EVIDENCE WAS
SUFFICIENT TO SUPPORT THE CONVICTION UNDER SEC. 3448.  SEE NOTE 4,
SUPRA.  IT THEN SUSTAINED THE JUDGMENT IN RELIANCE UPON O'ROURKE V.
BIRMINGHAM, 27 ALA. APP. 133; 168 SO. 206, CERT. DENIED, 232 ALA. 355;
168 SO. 209; AND HARDIE-TYNES MFG. CO. V. CRUISE, 189 ALA. 66; 66 SO.
657. 

FN10  COMPARE ELECTRIC BOND CO. V. COMM'N, 303 U.S. 419; SMITH V.
CAHOON, 283 U.S. 553, 562; GUNDLING V. CHICAGO, 177 U.S. 183, 186;
LEHON V. ATLANTA, 242 U.S. 53, 55, 56; HALL V. GEIGER-JONES CO., 242
U.S. 539, 553, 554. 

FN11  THE RECORD IN THE CASE AT BAR PERMITS THE INFERENCE THAT, WHILE
PICKETING HAD BEEN CARRIED ON FOR SEVERAL WEEKS, WITH SIX TO EIGHT MEN
AT EACH OF TWO PICKET POSTS, SEC. 3448 WAS NOT ENFORCED AGAINST ANYONE
OTHER THAN PETITIONER, THE UNION PRESIDENT, AND THEN ONLY AFTER HIS
CONVERSATION WITH SIMPSON WHO THEREUPON RETURNED HOME RATHER THAN
REPORT FOR WORK. 

FN12  A DISTINGUISHED COMMENTATOR HAS OBSERVED THAT "THE LIBERTY OF
THE PRESS MIGHT BE RENDERED A MOCKERY AND A DELUSION, AND THE PHRASE
ITSELF A BYWORD, IF, WHILE EVERY MAN WAS AT LIBERTY TO PUBLISH WHAT HE
PLEASED, THE PUBLIC AUTHORITIES MIGHT NEVERTHELESS PUNISH HIM FOR
HARMLESS PUBLICATIONS."  2 COOLEY, CONST. LIM., 8TH ED., P. 885.  SEE
MADISON'S REPORT ON THE VIRGINIA RESOLUTIONS, 4 ELL.  DEB., 2D ED.,
1876, P. 569; ADDRESS ON THE CONDUCT OF THE MARYLAND CONVENTION OF
1788, 2 ID., P. 552. 

FN13  THE EMPLOYER IN FACT HAD LOCKED OUT ITS UNION STAGEHANDS AND
WAS WORKING OTHERS NOT REGULARLY EMPLOYED AS STAGEHANDS IN ADMITTED
VIOLATION OF THE NATIONAL INDUSTRIAL RECOVERY ACT. 

FN14  ACCUSED THERE ASSERTED THAT THE APPLICATION OF SEC. 3448 TO THE
PARTICULAR FACTS OF HIS CASE DEPRIVED HIM OF RIGHTS GUARANTEED TO HIM
BY THE FOURTEENTH AMENDMENT.  THE COURT OF APPEALS PASSED UPON THIS
CONSTITUTIONAL QUESTION AND DECIDED IT ADVERSELY TO THE CONTENTIONS OF
ACCUSED. 

FN15  THERE IS A PROVISO THAT "NOTHING HEREIN SHALL PREVENT ANY
PERSON FROM SOLICITING TRADE OR BUSINESS FOR A COMPETITIVE BUSINESS." 

FN16  SO FAR AS THE PHRASE MAY HAVE BEEN GIVEN MEANING BY THE STATE
COURTS IT APPARENTLY GRANTS AUTHORITY TO THE COURT AND THE JURY TO
CONSIDER DEFENSIVE MATTER BROUGHT FORWARD BY THE ACCUSED, DEPENDING FOR
ITS SUFFICIENCY NOT UPON RULES OF GENERAL APPLICATION BUT UPON THE
PECULIAR FACTS OF EACH CASE.  SEE OWENS V. STATE, 74 ALA. 401; BAILEY
V. STATE, 161 ALA. 75; 49 SO. 886; FOLMAR V. STATE, 19 ALA. APP. 435;
97 SO. 768.  COMPARE O'ROURKE V. BIRMINGHAM, 27 ALA. APP. 133; 168 SO.
206, CERT. DENIED, 232 ALA. 355; 168 SO. 209. 

FN17  THE ONLY DIRECT EVIDENCE IN THE CASE AT BAR TO SHOW THAT THE
ACTIVITY OF PETITIONER WAS ACCOMPANIED BY THE NECESSARY INTENT OR
PURPOSE IS THE FACT THAT ONE OTHER EMPLOYEE, AFTER TALKING WITH
PETITIONER, REFRAINED FROM REPORTING FOR WORK AS PLANNED.  THERE IS
EVIDENCE HERE THAT THE OTHER EMPLOYEE WAS ACQUAINTED WITH THE FACTS
PRIOR TO HIS CONVERSATION WITH PETITIONER.  THE STATE CONCEDES,
HOWEVER, THAT UNDER SEC. 3448 EVERYONE MUST BE DEEMED TO INTEND THE
NATURAL AND PROBABLE CONSEQUENCES OF HIS ACTS.  SEE JACOBS V. STATE, 17
ALA. APP. 396; 85 SO. 837; REED V. STATE, 18 ALA. APP. 371; 92 SO. 513;
WEEKS V. STATE, 24 ALA. APP. 198; 132 SO. 870, CERT. DENIED, 222 ALA.
442; 132 SO. 871; WORRELL V. STATE, 24 ALA. APP. 313; 136 SO. 737,
CERT. DENIED, 223 ALA. 425; 136 SO. 738. 

FN18  SEE HELLERSTEIN, PICKETING LEGISLATION AND THE COURTS (1931),
10 NO. CAR.  L. REV. 158, 186N.:  "A PICKETER MAY:  (1) MERELY OBSERVE
WORKERS OR CUSTOMERS.  (2) COMMUNICATE INFORMATION, E.G., THAT A STRIKE
IS IN PROGRESS, MAKING EITHER TRUE, UNTRUE OR LIBELOUS STATEMENTS.  (3)
PERSUADE EMPLOYEES OR CUSTOMERS NOT TO ENGAGE IN RELATIONS WITH THE
EMPLOYER:  (A) THROUGH THE USE OF BANNERS, WITHOUT SPEAKING, CARRYING
TRUE, UNTRUE OR LIBELOUS LEGENDS; (B) BY SPEAKING, (I) IN A CALM,
DISPASSIONATE MANNER, (II) IN A HEATED, HOSTILE MANNER, (III) USING
ABUSIVE EPITHETS AND PROFANITY, (IV) YELLING LOUDLY, (V) BY PERSISTING
IN MAKING ARGUMENTS WHEN EMPLOYEES OR CUSTOMERS REFUSE TO LISTEN; (C)
BY OFFERING MONEY OR SIMILAR INDUCEMENTS TO STRIKE BREAKERS.  (4)
THREATEN EMPLOYEES OR CUSTOMERS:  (A) BY THE MERE PRESENCE OF THE
PICKETER; THE PRESENCE MAY BE A THREAT OF, (I) PHYSICAL VIOLENCE, (II)
SOCIAL OSTRACISM, BEING BRANDED IN THE COMMUNITY AS A "SCAB," (III) A
TRADE OR EMPLOYEES' BOYCOTT, I.E., PREVENTING WORKERS FROM SECURING
EMPLOYMENT AND REFUSING TO TRADE WITH CUSTOMERS, (IV) THREATENING
INJURY TO PROPERTY; (B) BY VERBAL THREATS.  (5) ASSAULTS AND USE OF
VIOLENCE.  (6) DESTRUCTION OF PROPERTY.  (7) BLOCKING OF ENTRANCES AND
INTERFERENCE WITH TRAFFIC. 

"THE PICKETER MAY ENGAGE IN A COMBINATION OF ANY OF THE TYPES OF
CONDUCT ENUMERATED ABOVE.  THE PICKETING MAY BE CARRIED ON SINGLY OR IN
GROUPS; IT MAY BE DIRECTED TO EMPLOYEES ALONE OR TO CUSTOMERS ALONE OR
TO BOTH.  IT MAY INVOLVE PERSONS WHO HAVE CONTRACTS WITH THE EMPLOYER
OR THOSE WHO HAVE NOT OR BOTH." 

FN19  STROMBERG V. CALIFORNIA, 283 U.S. 359; NEAR V. MINNESOTA, 283
U.S. 697; LOVELL V. GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O., 307 U.S.
496; SCHNEIDER V. STATE, 308 U.S. 147. 

FN20  SEE DUNIWAY, THE DEVELOPMENT OF FREEDOM OF THE PRESS IN
MASSACHUSETTS, P. 123 ET SEQ.; TYLER, LITERARY HISTORY OF THE AMERICAN
REVOLUTION, PASSIM; 2 BANCROFT, HISTORY OF THE UNITED STATES, P. 261;
SCHOFIELD, FREEDOM OF THE PRESS IN THE UNITED STATES (1914), 9 PROC.
AM. SOCIOL.  SOC.  67, 76, 80. 

FN21  SEE, E.G., SENN V. TILE LAYERS UNION, 301 U.S. 468; ETHYL
GASOLINE CORP. V. UNITED STATES, 309 U.S. 436; NATIONAL LABOR RELATIONS
BOARD V. NEWPORT NEWS CO., 308 U.S. 241; WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379; NEBBIA V. NEW YORK, 291 U.S. 502; DORCHY V.
KANSAS, 272 U.S. 306; EASTERN STATES RETAIL LUMBER DEALERS ASSN. V.
UNITED STATES, 234 U.S. 600; AIKENS V. WISCONSIN, 195 U.S. 194; HOLDEN
V. HARDY, 169 U.S. 366. 

FN22  SEE MR. JUSTICE HOLMES IN 249 U.S. AT 52; 250 U.S. AT 630. 

FN23  THE FACT THAT THE ACTIVITIES FOR WHICH PETITIONER WAS ARRESTED
AND CONVICTED TOOK PLACE ON THE PRIVATE PROPERTY OF THE PRESERVING
COMPANY IS WITHOUT SIGNIFICANCE.  PETITIONER AND THE OTHER EMPLOYEES
WERE NEVER TREATED AS TRESPASSERS, ASSUMING THAT THEY COULD BE WHERE
THE COMPANY OWNS SUCH A SUBSTANTIAL PART OF THE TOWN.  SEE P. 94,
SUPRA.  AND SEC. 3448, IN ANY EVENT, MUST BE TESTED UPON ITS FACE. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE JUDGMENT BELOW SHOULD
BE AFFIRMED. 
..END :























CARLSON V. CALIFORNIA, 310 U.S. 106 


NO. 667.  ARGUED FEBRUARY 29, MARCH 1, 1940.  - DECIDED APRIL 22, 1940. 
- REVERSED. 


A MUNICIPAL ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON TO CARRY OR
DISPLAY ANY SIGN, BANNER OR BADGE IN THE VICINITY OF ANY PLACE OF
BUSINESS FOR THE PURPOSE OF INDUCING OTHERS TO REFRAIN FROM BUYING OR
WORKING THERE, OR FOR ANY PERSON TO "LOITER" OR "PICKET" IN THE
VICINITY OF ANY PLACE OF BUSINESS FOR SUCH PURPOSE, HELD
UNCONSTITUTIONAL UPON THE AUTHORITY OF THORNHILL V. ALABAMA, ANTE, P.
88. 

CARLSON V. CALIFORNIA. 

APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA. 

APPEAL FROM THE AFFIRMANCE OF A CONVICTION AND SENTENCE UNDER AN ANTI
PICKETING ORDINANCE. 

THE ORDINANCE DOES NOT ABRIDGE FREEDOM OF SPEECH OR OF THE PRESS.  A
STATE MAY, IN THE EXERCISE OF ITS POLICE POWER, PLACE REASONABLE
REGULATIONS AND RESTRICTIONS UPON SPECIFIC CONSTITUTIONAL GUARANTEES IN
THE INTEREST OF PUBLIC PEACE.  WHITNEY V. CALIFORNIA, 274 U.S. 357;
GITLOW V. NEW YORK, 268 U.S. 652; SCHENCK V. UNITED STATES, 249 U.S.
47.  THE LIMITED REGULATION IMPOSED BY THIS ORDINANCE IS REASONABLY
CALCULATED TO PROMOTE THE PUBLIC WELFARE. 

PICKETING IN ITS VERY NATURE IS INIMICAL TO THE PUBLIC WELFARE, AS
TENDING TO BREACHES OF THE PEACE.  ELKIND & SONS V. RETAIL CLERKS
INTERNATIONAL PROTECTIVE ASSN., 169 A. 494; PIERCE V. STABLEMEN'S
UNION, 156 CAL. 70; LOCAL UNION V. STATHAKIS, 135 ARK. 86; ST. GERMAIN
V. BAKERY UNION, 97 WASH. 282; LYLE V. LOCAL 452, 174 TENN. 222; KEITH
THEATRE V. VACHON, 187 A. 692; TRUAX V. CORRIGAN, 257 U.S. 312; THOMAS
V. INDIANAPOLIS, 195 IND. 440.  SEE, ALSO, THORNHILL V. ALABAMA, 189
SO. 913; HARDIE-TYNES MFG. CO. V. CRUISE, 189 ALA. 66; WATTERS V.
INDIANAPOLIS, 191 IND. 671; EX PARTE STOUT, 82 TEX. CR. REP. 316;
PEOPLE V. GIDALY, 3 CAL. SUPP. 125. 

PUBLIC BENEFITS RESULT FROM THE ORDINANCE:  REMOVAL OF OBSTRUCTIONS
FROM THE PUBLIC SIDEWALKS, STREETS AND HIGHWAYS.  FIFTH AVENUE COACH
CO. V. CITY OF NEW YORK, 221 U.S. 467; DAVIS V. MASSACHUSETTS, 167 U.S.
43; FREND V. UNITED STATES, 100 F.2D 691. 

ALSO, BY PREVENTING THE CONGREGATION OF PARTISANS UNDER TENSE
CIRCUMSTANCES AT THE SCENE OF A LABOR DISPUTE, OPENLY DECLARING THEIR
PARTISANSHIP AND DISAPPROVAL OF THE CONDUCT OF OTHERS, AN OCCASION OF
VIOLENCE IS REMOVED. 

AND THE ORDINANCE PROTECTS BUSINESS AND THOSE RIGHTFULLY EMPLOYED. 
PUBLIC TRANQUILITY IS PRESERVED.  THERE IS NO CONSTITUTIONAL GUARANTEE
OF THE RIGHT TO PICKET.  THE ONLY RIGHT GUARANTEED IS A RIGHT TO
DISSEMINATE THE FACTS CONCERNING A LABOR DISPUTE WITHOUT ABUSIVE AND
ARBITRARY RESTRICTION. 

APPELLANT MUST MAKE AN AFFIRMATIVE SHOWING THAT THE ORDINANCE IN SOME
WAY HAS CAUSED AN ARBITRARY AND UNREASONABLE RESTRICTION ON THE
EXERCISE OF HIS INDIVIDUAL RIGHT. 

THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF ASSEMBLAGE IS NOT
ABRIDGED.  HAGUE V. C.I.O., 307 U.S. 496; PRESSER V. ILLINOIS, 116 U.S.
282. 

DEFENDANT IS CHARGED WITH, AND ADMITTED, "CARRYING SIGNS AND BANNERS"
IN VIOLATION OF THE ORDINANCE.  THIS IS A SPECIFIC ACT CLEARLY
DEFINED.  EVEN IF THE TERM "PICKETING" WERE TOO BROAD OR TOO VAGUE,
NEVERTHELESS UNDER THE SAVING CLAUSE IN SEC. 3, THE USE OF SUCH TERM
WILL NOT INVALIDATE THE PART DEFINING THE SPECIFIC ACT OF WHICH
APPELLANT WAS CONVICTED.  DISTINGUISHING SCHNEIDER V. IRVINGTON, 308
U.S. 147; LOVELL V. GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O., 307 U.S.
496; HERNDON V. LOWRY, 301 U.S. 242; DEJONGE V. OREGON, 299 U.S. 355;
SCHENCK V. UNITED STATES, 249 U.S. 47; WHITNEY V. CALIFORNIA, 274 U.S.
357; STROMBERG V. CALIFORNIA, 283 U.S. 359; NEAR V. MINNESOTA, 283 U.S.
697; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; CRANDALL V. NEVADA,
73 U.S. 35; SENN V. TILE LAYERS UNION, 301 U.S. 468; RENO V. SECOND
JUDICIAL DISTRICT COURT, 95 P.2D 994; PEOPLE V. HARRIS, 91 P.2D 989. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER REGULATIONS EMBODIED IN A
MUNICIPAL ORDINANCE ABRIDGE THE FREEDOM OF SPEECH OR OF THE PRESS
SECURED AGAINST STATE INVASION BY THE FOURTEENTH AMENDMENT.  FN1 


"IT SHALL BE UNLAWFUL FOR ANY PERSON, IN OR UPON ANY PUBLIC STREET,
HIGHWAY, SIDEWALK, ALLEY OR OTHER PUBLIC PLACE IN THE COUNTY OF SHASTA,
STATE OF CALIFORNIA, TO LOITER IN FRONT OF, OR IN THE VICINITY OF, OR
TO PICKET IN FRONT OF, OR IN THE VICINITY OF, OR TO CARRY, SHOW OR
DISPLAY ANY BANNER, TRANSPARENCY, BADGE OR SIGN IN FRONT OF, OR IN THE
VICINITY OF, ANY WORKS, OR FACTORY, OR ANY PLACE OF BUSINESS OR
EMPLOYMENT, FOR THE PURPOSE OF INDUCING OR INFLUENCING, OR ATTEMPTING
TO INDUCE OR INFLUENCE, ANY PERSON TO REFRAIN FROM ENTERING ANY SUCH
WORKS, OR FACTORY, OR PLACE OF BUSINESS, OR EMPLOYMENT, OR FOR THE
PURPOSE OF INDUCING OR INFLUENCING, OR ATTEMPTING TO INDUCE OR
INFLUENCE, ANY PERSON TO REFRAIN FROM PURCHASING OR USING ANY GOODS,
WARES, MERCHANDISE, OR OTHER ARTICLES, MANUFACTURED, MADE OR KEPT FOR
SALE THEREIN, OR FOR THE PURPOSE OF INDUCING OR INFLUENCING, OR
ATTEMPTING TO INDUCE OR INFLUENCE, ANY PERSON TO REFRAIN FROM DOING OR
PERFORMING ANY SERVICE OR LABOR IN ANY WORKS, FACTORY, PLACE OF
BUSINESS OR EMPLOYMENT, OR FOR THE PURPOSE OF INTIMIDATING, THREATENING
OR COERCING, OR ATTEMPTING TO INTIMIDATE, THREATEN OR COERCE ANY PERSON
WHO IS PERFORMING, SEEKING OR OBTAINING SERVICE OR LABOR IN ANY SUCH
WORKS, FACTORY, PLACE OF BUSINESS OR EMPLOYMENT."  FN2 

APPELLANT WAS ONE OF A GROUP OF TWENTY-NINE MEN ENGAGED IN
"PICKETING" ON U.S. HIGHWAY 99 IN FRONT OF THE DELTA TUNNEL PROJECT IN
SHASTA COUNTY.  "THE PICKETING CONSISTED OF WALKING (ON THE EDGE OF THE
HIGHWAY NEAREST THE PROJECT) A DISTANCE OF 50 TO 100 FEET IN A GENERAL
NORTHERLY DIRECTION, THEN TURNING AROUND AND RETRACING STEPS AND
CONTINUING AS BEFORE  ...  ALL OF THE WALKING IN CONNECTION WITH THE
PICKETING  ...  WAS DONE OFF THE PAVED PORTION OF THE HIGHWAY AND ON
THE GRAVELLED PORTION OF THE RIGHT-OF-WAY, THAT IS, ON PUBLIC
PROPERTY."  SOME OF THE PICKETS CARRIED SIGNS, SIMILAR TO THOSE
DESCRIBED IN THE MARGIN,  FN3  IN SUCH A MANNER THAT WORKERS ON THE
PROJECT AND PERSONS GOING ALONG THE HIGHWAY IN EITHER DIRECTION COULD
READ THEM.  THE SIGN CARRIED BY APPELLANT BORE THE LEGEND:  "THIS JOB
IS UNFAIR TO CIO."  THESE ACTIVITIES OCCURRED BETWEEN THE HOURS OF 7:30
AND 9:00 A.M.  DURING THIS PERIOD VEHICLES AND PERSONS PASSED FREELY
WITHOUT ANY MOLESTATION OR INTERFERENCE THROUGH THE PICKET LINE FROM
THE HIGHWAY TO THE PROJECT AND FROM THE PROJECT TO THE HIGHWAY, AND THE
TRAFFIC OF PERSONS AND AUTOMOBILES ALONG THE HIGHWAY WAS NOT
OBSTRUCTED.  APPELLANT DID NOT THREATEN OR INTIMIDATE OR COERCE ANYONE,
DID NOT MAKE ANY LOUD NOISES AT ANY TIME, AND WAS PEACEFUL AND ORDERLY
IN HIS DEMEANOR.  THE PICKETS COMMITTED NO ACTS OF VIOLENCE, AND THERE
WAS NO BREACH OF THE PEACE. 

THE COUNTY OFFICERS ARRESTED APPELLANT AND CHARGED THAT HE DID
"LOITER, PICKET, AND DISPLAY SIGNS AND BANNERS IN A PUBLIC PLACE AND IN
AND UPON A PUBLIC HIGHWAY IN FRONT OF, AND IN THE VICINITY OF THE DELTA
TUNNEL PROJECT  ...  FOR THE PURPOSE OF INDUCING AND INFLUENCING
PERSONS TO REFRAIN FROM DOING AND PERFORMING SERVICES AND LABOR" AT THE
PROJECT IN VIOLATION OF THE ORDINANCE.  THE JUSTICE'S COURT OF TOWNSHIP
NUMBER NINE FOUND HIM "GUILTY OF VIOLATING THE SHASTA COUNTY ANTI
PICKETING LAW," RENDERED JUDGMENT ACCORDINGLY, AND IMPOSED SENTENCE. 
THE SUPERIOR COURT OF SHASTA COUNTY AFFIRMED THE JUDGMENT.  THAT COURT
UPHELD THE ORDINANCE, OVER APPELLANT'S CLAIM OF UNCONSTITUTIONALITY, ON
THE AUTHORITY OF A PRIOR DECISION.  FN4  THE CASE COMES HERE ON
APPEAL.  FN5 

OUR DECISION IN THORNHILL V. ALABAMA, ANTE, P. 88, GOES FAR TOWARD
SETTLING THE ISSUES PRESENTED HERE.  UNDER THAT DECISION, SEC. 2 OF THE
ORDINANCE IN QUESTION IS TO BE JUDGED UPON ITS FACE.  FN6 

DISPLAY ANY SIGN OR BANNER OR BADGE IN THE VICINITY OF ANY PLACE OF
BUSINESS FOR THE PURPOSE OF INDUCING OR ATTEMPTING TO INDUCE ANY PERSON
TO REFRAIN FROM PURCHASING MERCHANDISE OR PERFORMING SERVICES OR
LABOR.  IT LIKEWISE MAKES IT UNLAWFUL FOR ANY PERSON TO LOITER OR
PICKET IN THE VICINITY OF ANY PLACE OF BUSINESS FOR A SIMILAR PURPOSE. 
THE TERMS "LOITER" AND "PICKET" ARE NOT DEFINED EITHER IN THE ORDINANCE
OR IN AUTHORITATIVE STATE DECISIONS.  THEREFORE, THEY MUST BE JUDGED AS
COVERING ALL THE ACTIVITIES EMBRACED BY THE PROHIBITION AGAINST THE
CARRYING OF SIGNS IN THE VICINITY OF A LABOR DISPUTE FOR THE PURPOSE
MENTIONED.  FN7  THE ORDINANCE DOES NOT PROSCRIBE THE CARRYING OF SIGNS
IN OTHER PLACES OR FOR THE PURPOSE OF INDUCING OR ATTEMPTING TO INDUCE
OTHERS TO ADOPT COURSES OF ACTION NOT RELATED TO LABOR DISPUTES.  IT
CONTAINS NO EXCEPTIONS WITH RESPECT TO THE TRUTHFULNESS AND RESTRAINT
OF THE INFORMATION CONVEYED OR THE NUMBER OF PERSONS ENGAGED IN THE
ACTIVITY.  IT IS TRUE THAT THE ORDINANCE REQUIRES PROOF OF A PURPOSE TO
PERSUADE OTHERS NOT TO BUY MERCHANDISE OR PERFORM SERVICES.  SUCH A
PURPOSE COULD BE FOUND IN THE CASE OF NEARLY EVERY PERSON ENGAGED IN
PUBLICIZING THE FACTS OF A LABOR DISPUTE; EVERY EMPLOYEE OR MEMBER OF A
UNION WHO ENGAGED IN SUCH ACTIVITY IN THE VICINITY OF A PLACE OF
BUSINESS COULD BE FOUND DESIROUS OF ACCOMPLISHING SUCH OBJECTIVES;
DISINTERESTED PERSONS (WHO MIGHT BE HIRED TO CARRY SIGNS) APPEAR TO BE
A POSSIBLE, BUT UNLIKELY, EXCEPTION.  FN8  IN BRIEF, THE ORDINANCE DOES
NOT REGULATE ALL CARRYING OF SIGNS, BUT, ON THE CONTRARY, PROSCRIBES
THE CARRYING OF SIGNS ONLY IF BY PERSONS DIRECTLY INTERESTED WHO
APPROACH THE VICINITY OF A LABOR DISPUTE TO CONVEY INFORMATION ABOUT
THE DISPUTE. 

THE SWEEPING AND INEXACT TERMS OF THE ORDINANCE DISCLOSE THE THREAT
TO FREEDOM OF SPEECH INHERENT IN ITS EXISTENCE.  IT CANNOT BE THOUGHT
TO DIFFER IN ANY MATERIAL RESPECT FROM THE STATUTE HELD VOID IN
THORNHILL'S CASE.  THE CARRYING OF SIGNS AND BANNERS, NO LESS THAN THE
RAISING OF A FLAG, IS A NATURAL AND APPROPRIATE MEANS OF CONVEYING
INFORMATION ON MATTERS OF PUBLIC CONCERN.  STROMBERG V. CALIFORNIA, 283
U.S. 359.  FOR THE REASONS SET FORTH IN OUR OPINION IN THORNHILL V.
ALABAMA, SUPRA, PUBLICIZING THE FACTS OF A LABOR DISPUTE IN A PEACEFUL
WAY THROUGH APPROPRIATE MEANS, WHETHER BY PAMPHLET, BY WORD OF MOUTH OR
BY BANNER, MUST NOW BE REGARDED AS WITHIN THAT LIBERTY OF COMMUNICATION
WHICH IS SECURED TO EVERY PERSON BY THE FOURTEENTH AMENDMENT AGAINST
ABRIDGMENT BY A STATE. 

THE POWER AND DUTY OF THE STATE TO TAKE ADEQUATE STEPS TO PRESERVE
THE PEACE AND PROTECT THE PRIVACY, THE LIVES, AND THE PROPERTY OF ITS
RESIDENTS CANNOT BE DOUBTED.  BUT THE ORDINANCE IN QUESTION HERE
ABRIDGES LIBERTY OF DISCUSSION UNDER CIRCUMSTANCES PRESENTING NO CLEAR
AND PRESENT DANGER OF SUBSTANTIVE EVILS WITHIN THE ALLOWABLE AREA OF
STATE CONTROL.  REVERSED. 

FN1  "IT IS ALSO WELL SETTLED THAT MUNICIPAL ORDINANCES ADOPTED UNDER
STATE AUTHORITY CONSTITUTE STATE ACTION AND ARE WITHIN THE PROHIBITION
OF THE AMENDMENT."  LOVELL V. GRIFFIN, 303 U.S. 444, 450; SCHNEIDER V.
STATE, 308 U.S. 147. 

FN2  SECTION 1 DECLARES THAT IT SHALL BE UNLAWFUL FOR ANY PERSON "TO
MAKE ANY LOUD OR UNUSUAL NOISE, OR TO SPEAK IN A LOUD OR UNUSUAL TONE,
OR TO CRY OUT OR PROCLAIM, FOR THE PURPOSES OF INDUCING OR INFLUENCING,
OR ATTEMPTING TO INDUCE OR INFLUENCE, ANY PERSON" TO REFRAIN FROM
ENTERING, OR PURCHASING MERCHANDISE FROM, OR PERFORMING ANY SERVICE IN,
ANY PLACE OF BUSINESS.  THE STATE DID NOT CHARGE THAT THIS SECTION WAS
VIOLATED. 

FN3  FOUR SIGNS WERE ADMITTED IN EVIDENCE AS TYPICAL.  THEY WERE OF
WHITE CARD BOARD, APPROXIMATELY 14 X 22 INCHES IN SIZE, AND WERE TACKED
UPON A STICK SOME 34 INCHES LONG, 1 1/2 INCHES WIDE AND 1/4 INCH
THICK.  BLACK PAINTED LETTERS, RANGING IN SIZE FROM 1 1/2 INCHES TO 5
INCHES IN HEIGHT, SPELLED OUT ONE OF THE FOLLOWING LEGENDS ON EACH
SIGN:  "DON'T BE A SCAB," "SHASTA TUNNEL AND CONSTRUCTION WORKERS LOCAL
#260," "CIO PICKET LINE," "THIS JOB UNFAIR TO CIO." 

FN4  APPELLANT, PRIOR TO TRIAL, MOVED TO DISMISS THE COMPLAINT UPON A
NUMBER OF GROUNDS, AMONG WHICH WAS THE CONTENTION THAT SEC. 2 OF THE
ORDINANCE VIOLATED THE FOURTEENTH AMENDMENT IN ABRIDGING HIS "FREEDOM
OF SPEECH, FREEDOM OF PRESS, AND FREEDOM OF ASSEMBLY."  THE SAME
OBJECTIONS WERE RAISED BY DEMURRER, BY FURTHER MOTIONS TO DISMISS THE
COMPLAINT, AND BY MOTION IN ARREST OF JUDGMENT. 

FN5  THERE IS NO FURTHER APPEAL ALLOWED IN THE STATE COURTS. 

FN6  WE DO NOT DECIDE WHETHER, IN VIEW OF THE SEPARABILITY PROVISION
(SEC. 3), THE STATE COURTS MIGHT CULL OUT FROM SEC. 2 PARTICULAR
CLAUSES WHICH, STANDING ALONE, COULD BE SUSTAINED. 

FN7  SEE THORNHILL V. ALABAMA, ANTE, P. 101, N. 18. 

FN8  EVEN THEY WOULD BE COVERED UNDER A CONSTRUCTION MAKING PURPOSE
SYNONYMOUS WITH INTENT.  SEE THORNHILL V. ALABAMA, ANTE, P. 100, N.
17. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE JUDGMENT BELOW SHOULD
BE AFFIRMED. 
..END :















WISCONSIN V. ILLINOIS, 309 U.S. 569 


NOS. 2, 3 AND 4, ORIGINAL.  ARGUED MARCH 25, 26, 1940.  - DECIDED APRIL
3, 1940. 


SPECIAL MASTER APPOINTED TO MAKE SUMMARY INQUIRY AND SPEEDY REPORT AS
TO CONDITION OF THE ILLINOIS WATERWAY DUE TO THE INTRODUCTION OF
UNTREATED SEWAGE, THE EFFECT UPON THE HEALTH OF INHABITANTS OF
COMMUNITIES BORDERING THE WATERWAY, AND THE REMEDIAL OR AMELIORATING
MEASURES AVAILABLE TO THE STATE OF ILLINOIS WITHOUT AN INCREASE IN
DIVERSION OF WATER FROM LAKE MICHIGAN.  P. 571. 

WISCONSIN, MINNESOTA, OHIO AND PENNSYLVANIA V. ILLINOIS AND THE
SANITARY DISTRICT OF CHICAGO. 

MICHIGAN V. ILLINOIS AND THE SANITARY DISTRICT OF CHICAGO ET AL. 

NEW YORK V. ILLINOIS AND THE SANITARY DISTRICT OF CHICAGO ET AL. 

UPON PETITION OF THE STATE OF ILLINOIS FOR A TEMPORARY MODIFICATION
OF THE DECREE RESTRICTING DIVERSION OF WATER OF THE GREAT LAKES-ST.
LAWRENCE SYSTEM OR WATERSHED THROUGH THE CHICAGO DRAINAGE CANAL, AND
THE RETURN OF THE PLAINTIFF STATES IN RESPONSE TO A RULE TO SHOW
CAUSE.  SEE ALSO, ORDER ON P. 636, POST. 

PER CURIAM. 

BY THE DECREE OF APRIL 21, 1930(281 U.S. 179, 696), THE STATE OF
ILLINOIS AND THE SANITARY DISTRICT OF CHICAGO WERE ENJOINED FROM
DIVERTING ON AND AFTER DECEMBER 31, 1938, ANY OF THE WATERS OF THE
GREAT LAKES-ST. LAWRENCE SYSTEM OR WATERSHED THROUGH THE CHICAGO
DRAINAGE CANAL OR OTHERWISE IN EXCESS OF THE ANNUAL AVERAGE OF 1500
CUBIC FEET PER SECOND IN ADDITION TO DOMESTIC PUMPAGE.  THAT DATE WAS
FIXED AS AFFORDING ADEQUATE TIME, UPON A LIBERAL ESTIMATE, FOR THE
COMPLETION OF THE ENTIRE SYSTEM DESIGNED FOR SEWAGE TREATMENT, TOGETHER
WITH CONTROLLING WORKS TO PREVENT REVERSALS OF THE CHICAGO RIVER IN
TIMES OF STORM. 

THE STATE OF ILLINOIS NOW SEEKS A TEMPORARY MODIFICATION OF THE
DECREE SO AS TO PERMIT AN INCREASE OF THE DIVERSION TO NOT MORE THAN
5000 CUBIC FEET PER SECOND, IN ADDITION TO DOMESTIC PUMPAGE, UNTIL
DECEMBER 31, 1942.  THE STATE SUBMITS ITS PETITION, NOT ON BEHALF OF
THE CITY OF CHICAGO OR THE SANITARY DISTRICT, BUT AT THE INSTANCE OF
CERTAIN COMMUNITIES BORDERING ON THE ILLINOIS WATERWAY, INCLUDING
LOCKPORT AND JOLIET.  THE GROUNDS FOR THE APPLICATION ARE THAT THE
SYSTEM FOR SEWAGE TREATMENT HAS NOT YET BEEN COMPLETED AND WILL NOT BE
COMPLETED UNTIL THE END OF THE YEAR 1942, AND THAT, IN CONSEQUENCE,
THROUGH THE INTRODUCTION OF UNTREATED SEWAGE INTO THE STREAM, AN
"OBNOXIOUS, NOISOME, FILTHY, UNSANITARY AND DANGEROUS CONDITION TO
PUBLIC HEALTH" EXISTS ALONG THE SANITARY DISTRICT CANAL AND THE
ILLINOIS WATERWAY. 

THE STATE OF ILLINOIS HAS FAILED TO SHOW THAT IT HAS PROVIDED ALL
POSSIBLE MEANS AT ITS COMMAND FOR THE COMPLETION OF THE SEWAGE
TREATMENT SYSTEM AS REQUIRED BY THE DECREE AS SPECIFICALLY ENLARGED IN
1933(289 U.S. 395, 710).  NO ADEQUATE EXCUSE HAS BEEN PRESENTED FOR THE
DELAY.  NOR HAS THE STATE SUBMITTED APPROPRIATE PROOF THAT THE
CONDITIONS COMPLAINED OF CONSTITUTE A MENACE TO THE HEALTH OF THE
INHABITANTS OF THE COMPLAINING COMMUNITIES OR THAT THE STATE IS NOT
ABLE TO PROVIDE SUITABLE MEASURES TO REMEDY OR AMELIORATE THE ALLEGED
CONDITIONS WITHOUT AN INCREASE IN THE DIVERSION OF WATER FROM LAKE
MICHIGAN IN VIOLATION OF THE RIGHTS OF THE COMPLAINANT STATES AS
ADJUDGED BY THIS COURT. 

IN ORDER, HOWEVER, THAT THE COURT MAY BE SATISFIED AS TO THE ACTUAL
CONDITION OF THE ILLINOIS WATERWAY BY REASON OF THE INTRODUCTION OF
UNTREATED SEWAGE, AND AS TO THE ACTUAL EFFECT, IF ANY, OF THAT
CONDITION UPON THE HEALTH OF THE INHABITANTS OF THE COMPLAINING
COMMUNITIES, AND ALSO WITH RESPECT TO THE FEASIBILITY OF REMEDIAL OR
AMELIORATING MEASURES AVAILABLE TO THE STATE OF ILLINOIS WITHOUT AN
INCREASE IN THE DIVERSION OF WATER FROM LAKE MICHIGAN, THE COURT
APPOINTS A SPECIAL MASTER TO MAKE A SUMMARY INQUIRY AS TO SUCH
CONDITION, EFFECT AND MEASURES, AND TO REPORT TO THIS COURT WITH ALL
CONVENIENT SPEED. 
..END :





















SHELDON V. METRO-GOLDWYN CORP., 309 U.S. 390 


NO. 482.  ARGUED FEBRUARY 8, 9, 1940.  - DECIDED MARCH 25, 1940.  - 106
F.2D 45, AFFIRMED. 


1.  THAT CLAUSE OF SEC. 25(B) OF THE COPYRIGHT ACT WHICH AUTHORIZES
RECOVERY FROM AN INFRINGER, "IN LIEU OF ACTUAL DAMAGES AND PROFITS," OF
"SUCH DAMAGES AS TO THE COURT SHALL APPEAR TO BE JUST," IS INAPPLICABLE
WHERE THE ONLY MATTER IN QUESTION IS THE APPORTIONMENT OF PROFITS
ESTABLISHED.  P. 399. 

2.  THE PURPOSE OF SEC. 25(B) OF THE COPYRIGHT ACT, IN AWARDING TO A
COPYRIGHT PROPRIETOR AGAINST AN INFRINGER "ALL THE PROFITS WHICH THE
INFRINGER SHALL HAVE MADE FROM SUCH INFRINGEMENT," IS TO PROVIDE JUST
COMPENSATION FOR THE WRONG - NOT TO IMPOSE A PENALTY BY GIVING TO THE
COPYRIGHT PROPRIETOR PROFITS WHICH ARE NOT ATTRIBUTABLE TO THE
INFRINGEMENT.  P. 399. 

3.  WHERE IT IS CLEAR THAT THE PROFITS MADE BY A COPYRIGHT INFRINGER
ARE ATTRIBUTABLE IN PART TO USE OF COPYRIGHT MATERIAL, BUT IN PART TO
WHAT THE INFRINGER HIMSELF SUPPLIED, AND WHERE THE EVIDENCE PROVIDES A
FAIR BASIS OF DIVISION, SO AS TO GIVE THE COPYRIGHT PROPRIETOR ALL THE
PROFITS THAT CAN BE DEEMED TO HAVE RESULTED FROM THE USE THAT BELONGED
TO HIM, THE PROFITS WILL BE APPORTIONED ACCORDINGLY.  CALLAGHAN V.
MYERS, 128 U.S. 617, AND BELFORD V. SCRIBNER, 144 U.S. 488,
DISTINGUISHED.  PP. 399-402. 

4.  PRINCIPLES GOVERNING APPORTIONMENT OF PROFITS IN PATENT
INFRINGEMENT CASES APPLY TO CASES OF COPYRIGHT INFRINGEMENT.  P. 402. 

5.  IN APPORTIONMENT OF PROFITS BETWEEN COPYRIGHT PROPRIETOR AND
INFRINGER, WHERE MATHEMATICAL EXACTNESS MAY BE IMPOSSIBLE, ALL THAT IS
REQUIRED IS A REASONABLE APPROXIMATION, WHICH MAY BE ATTAINED WITH THE
AID OF EXPERT TESTIMONY.  P. 403. 

6.  THE AMENDMENT OF THE PATENT LAW (R.S. SEC. 4921; ACT OF FEBRUARY
18, 1922) WHICH EXPRESSLY RECOGNIZES THE USE OF EXPERT TESTIMONY IN
ESTABLISHING DAMAGES OR PROFITS FROM PATENT INFRINGEMENT, DID NOT
ENLARGE IN THAT RESPECT THE RULES ALREADY APPLIED IN COURTS OF EQUITY;
AND THE FACT THAT THE COPYRIGHT LAW WAS NOT SIMILARLY AMENDED DOES NOT
DETRACT FROM THE JURISDICTION TO RECEIVE EVIDENCE OF EXPERTS IN
COPYRIGHT INFRINGEMENT CASES WHENEVER FOUND COMPETENT.  P. 405. 

7.  EVEN IN A CASE OF DELIBERATE PLAGIARISM, THE COPYRIGHT OWNER,
UPON AN EQUITABLE ACCOUNTING OF PROFITS, CAN HAVE ONLY SUCH PROFITS AS
WERE DUE TO THE INFRINGEMENT.  TO AWARD MORE WOULD BE TO INFLICT AN
UNAUTHORIZED PENALTY.  P. 405. 

8.  WHERE THE EVIDENCE SHOWED THAT IN THE PRODUCTION OF A MOTION
PICTURE, WHICH WAS EXHIBITED AT GREAT PROFIT, MATERIAL HAD BEEN
DELIBERATELY LIFTED FROM A COPYRIGHTED PLAY, BUT THAT MUCH THE GREATER
PART OF THE PROFITS WAS DUE TO THE ACTORS, SCENERY, SKILL IN
PRODUCTION, EXPENSES, ETC., SUPPLIED AND PAID FOR BY THE INFRINGERS, AN
APPORTIONMENT, WITH THE AID OF EXPERT TESTIMONY, RESULTED IN AWARDING
ONE-FIFTH TO THE COPYRIGHT PROPRIETORS.  P. 406. 

SHELDON ET AL. V. METRO-GOLDWYN PICTURES CORP. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 308 U.S. 545, TO REVIEW THE REVERSAL OF A DECREE, 26
F.SUPP.  134, WHICH AWARDED TO THE PRESENT PETITIONERS ALL OF THE NET
PROFITS DERIVED BY THE RESPONDENTS FROM A MOTION PICTURE INFRINGING THE
PETITIONERS' COPYRIGHT.  NO QUESTION OF BURDEN OF PROOF WAS INVOLVED. 

THE COURT BELOW FAILED TO FOLLOW THE STATUTE.  CALLAGHAN V. MYERS,
128 U.S. 617; BELFORD V. SCRIBNER, 144 U.S. 488; DAM V. LASHELLE, 175
F. 902.  THE INFRINGEE IS ENTITLED TO "ALL THE PROFITS." 

APPORTIONMENT IN TRADEMARK CASES IS "INHERENTLY IMPOSSIBLE." 
HAMILTON-BROWN SHOE CO. V. WOLF BROS., 240 U.S. 251.  SEE, ALSO, GRAHAM
V. PLATT, 40 CAL. 593, 598.  THIS COURT REFUSED TO APPLY ANALOGIES OF
PATENT TO TRADEMARK CASES, NOTWITHSTANDING WESTINGHOUSE V. WAGNER, 225
U.S. 604, OR DOWAGIAC MFG. CO. V. MINNESOTA PLOW CO., 235 U.S. 641. 

APART FROM THE FACT THAT BOTH A PATENT AND A COPYRIGHT ARE STATUTORY
MONOPOLIES THERE IS NOTHING IN COMMON BETWEEN THEM. 

TWO AUTHORS WORKING INDEPENDENTLY COULD CONCEIVABLY WRITE THE SAME
WORK.  BOTH WOULD BE ENTITLED TO A VALID COPYRIGHT.  THERE CAN BE A
PLURALITY OF COPYRIGHTS.  DYMOW V. BOLTON, 11 F.2D 690, 691; SHELDON V.
METRO GOLDWYN PICTURES CORP., 81 F.2D 49, 54. 

A PATENT IS INVALIDATED BY REASON OF PRIOR ART OR ANTICIPATION; BUT A
COPYRIGHT, AS PROVIDED IN SEC. 6, MAY BE HAD ON THE REWRITING OF WORKS
IN THE PUBLIC DOMAIN. 

"PUBLIC DOMAIN," REFERS TO THOSE WORKS UPON WHICH COPYRIGHT HAS
EXPIRED OR WHICH HAVE BEEN PUBLISHED WITHOUT ITS PROTECTION, AND ARE
THEREFORE OPEN TO THE PUBLIC TO MAKE COPIES THEREOF.  THE COURT BELOW
CONFUSES THIS.  IT SAYS "THE PLAINTIFFS WORKED OVER OLD MATERIAL.  THE
GENERAL SKELETON WAS ALREADY IN THE PUBLIC DEMESNE."  IT APPARENTLY
MADE NO EXPRESS APPORTIONMENT ON THE BASIS OF THIS STATEMENT; BUT IF IT
DID THE ERROR IS AGGRAVATED. 

RESPONDENTS ARE CHARGED WITH HAVING COPIED, NOT THE TRIAL OF MADELEINE
SMITH, BUT OUR DRAMATIZATION OF IT. 

THE FACT THAT THE TRIAL INSPIRED THE WRITING OF THE PLAY DOES NOT
DIMINISH PETITIONERS' RIGHTS AGAINST RESPONDENTS FOR HAVING COPIED. 
EMERSON V. DAVIES, 8 FED. CAS. 615, 620; MACMILLAN V. COOPER, 40 T.L.R.
186; BLEISTEIN V. DONALDSON, 188 U.S. 238, 250; JEWELERS' CIRCULAR PUB.
CO. V. KEYSTONE PUB. CO., 281 F. 83, 88. 

THE QUESTION IN A PATENT SUIT IS:  DOES THE DEVICE IMPINGE UPON THE
BOUNDS OF THE PATENT OWNER'S GRANT?  THE QUESTION IN A COPYRIGHT SUIT
IS:  HAS ONE WORK BEEN "COPIED" FROM ANOTHER?  IF THE WORK IS PROPERLY
PROTECTED BUT COPIED THE RECOVERY FOLLOWS UNDER THE STATUTE.  CF.
WESTINGHOUSE ELECTRIC & MFG. CO. V. WAGNER ELECTRIC & MFG. CO., 225
U.S. 604, 614. 

IF INDUSTRY CAN COPY THE WORK OF AN AUTHOR; ESCAPE THE HAZARD OF AN
INJUNCTION BECAUSE THE ARM OF EQUITY IS NOT QUICK ENOUGH TO STOP THE
WRONG BEFORE IT HAS RUN; AND AFTER EIGHT YEARS OF CRUSHING LITIGATION
RETAIN 80% OF THE GAINS, THERE IS LITTLE INCENTIVE LEFT FOR INDUSTRY TO
CONSULT WITH OR MAKE CONTRACTS WITH AUTHORS. 

THE LAW WAS DESIGNED AS A DETERRENT TO PLAGIARISM - THE COPYRIGHT
OWNER WAS GIVEN "ALL THE PROFITS" BE THEY GREAT OR SMALL.  THE LAW WAS
NOT DESIGNED WITH REGARD TO THE ULTIMATE POSITION OF THE COPYRIGHT
OWNER - HIS RECOVERY TO BE VARIED WITH THE AMOUNT OF THE PROFITS.  THE
DESIGN OF THE LAW WAS TO DEPRIVE THE WRONGDOER OF ALL PROFITS - NOT ALL
PROFITS IF THE INFRINGEMENT IS A FINANCIAL FAILURE, AND 20% OF THE
PROFITS IF THE INFRINGEMENT IS A SUCCESS. 

GRANTING ARGUENDO THAT THERE SHOULD BE APPORTIONMENT, THE BASIS USED
BY THE COURT BELOW HAS NEVER BEEN RECOGNIZED EVEN IN THE FIELD OF
PATENTS. 

APPORTIONMENT IN PATENT LAW CAN NOT REST UPON THE SKILL, SCIENCE AND
ENDEAVOR WHICH WENT INTO THE MAKING OF THE INFRINGING DEVICE BUT MUST
REST UPON SOME SEPARABLE ITEM OF A DISTINCT AND INDEPENDENT CHARACTER. 
CLARK V. JOHNSON, 199 F. 116, 122. 

AN APPORTIONMENT ON THE BASIS USED BELOW IS MERELY AN APPORTIONMENT
FOR LABOR AND MATERIALS USED IN MANUFACTURING THE INFRINGING COPY, THE
COST OF WHICH HAS ALREADY BEEN ALLOWED AS AN ITEM OF EXPENSE. 

IT IS IMMATERIAL WHETHER THE INFRINGING COPY IS GOOD, BAD OR
INDIFFERENT.  BOTH THE INFRINGER AND THE INFRINGEE ALIKE HAVE TO ABIDE
BY THE RESULT OF THE TAKING.  TILGHMAN V. PROCTOR, 125 U.S. 138, 140;
CROSBY VALVE V. CONSOLIDATED VALVE CO., 141 U.S. 441; ELIZABETH V. AM.
NICHOLSON PAVEMENT CO., 97 U.S. 126, 138; LIVINGSTON V. WOODSWORTH, 15
HOW.  559. 

THE BASIS OF THE APPORTIONMENT BELOW IS FOUNDED ON THE BRAND OF
TALENT AND SKILL USED BY THE INFRINGER IN THE MAKING OF THE COPY.  WE
CALL THIS NOTHING MORE THAN AN APPORTIONMENT ON A LABOR AND MATERIAL
BASIS.  IT IS MERELY AN ITEM OF COST TO BE ALLOWED BEFORE ARRIVING AT
THE FIGURE OF PROFIT, BUT NOT A BASIS UPON WHICH TO APPORTION THAT
PROFIT. 

BUT THE COURT BELOW, NOT ONLY ALLOWED THE COST OF THE LABOR AND
MATERIAL, BUT ALLOWED RESPONDENTS TO SHARE IN THE PROFITS TO THE EXTENT
OF 80%.  SUCH TREATMENT IS NEVER FOUND IN PATENT CASES.  DUPLATE
CORPORATION V. TRIPLEX SAFETY GLASS CO., 298 U.S. 448, 457; CONROY V.
PENNSYLVANIA ELECTRIC & MFG. CO. 199 F. 427, 430, 431; CHRISTENSEN V.
NATIONAL BRAKE & ELECTRIC CO., 10 F.2D 856, 866; AFF'D 38 F.2D 721;
CERT. DEN.  282 U.S. 864. 

IF THERE WERE TO BE AN APPORTIONMENT BASED UPON THE ANALOGY OF
PATENTS, IT SHOULD BE BY A SEGREGATION OF THE COPYRIGHTED MATERIAL FROM
THE ADDED NON-COPYRIGHTED PORTION. 

IN PATENT CASES, THE PROFITS MAY BE ATTRIBUTABLE TO OTHER PORTIONS OF
THE MACHINE BECAUSE THE UNPATENTED PORTION MAY STILL STAND AS A USEFUL
MASS AND BE VIEWED IN ITS DISTINCT AND INDEPENDENT CHARACTER.  CLARK V.
JOHNSON, 199 F. 116; GARRETSON V. CLARK, 111 U.S. 120. 

THE COURTS DO NOT CONSIDER WHAT PORTION OF THE PROFIT MAY BE ASCRIBED
TO THE DEFENDANT'S GOOD WORKMANSHIP IN INFRINGING WITHIN THE SCOPE OF
THE PATENT.  CLARK V. JOHNSON, SUPRA. 

IT FOLLOWS FROM THE DECISION BELOW THAT THE RIGHT GRANTED TO THE
COPYRIGHT OWNER TO RECOVER "ALL THE PROFITS" UNDER THE ACT DOES NOT
EXTEND TO THE VERY GOOD OR GLORIFIED COPIES OF HIS WORK, BUT ONLY TO
THOSE INFERIOR OR MEDIOCRE COPIES WHERE THE PROFITS ARE NOT VERY
GREAT.  THE WRONGDOER, IF HE IS SKILLFUL, IS TO BE CREDITED WITH A
SHARE OF THE SPOILS.  SEE, STEARNS-ROGER MFG. CO. V. RUTH, 87 F.2D 35,
39; CHRISTENSEN V. NATIONAL BRAKE & ELECTRIC CO., 10 F.2D 856, 866. 

AN INFRINGER IN AN ACCOUNTING FOR PROFITS IS VIEWED AS A TRUSTEE EX
MALEFICIO.  HAMILTON-BROWN SHOE CO. V. WOLF BROS. CO., 240 U.S. 251,
259; WESTINGHOUSE V. WAGNER, 225 U.S. 604, 618, 619; ROOT V. RAILWAY
CO., 105 U.S. 189; WALES V. WATERBURY MFG. CO., 101 F. 126; WESTERN
GLASS CO. V. SCHMERTZ WIRE GLASS CO., 226 F. 730, 735.  HE MAY RETAIN
NO BENEFIT FROM HIS WRONG.  DUPLATE CORP. V. TRIPLEX SAFETY GLASS CO.,
298 U.S. 448, 457; CROSBY STEAM GAGE & VALVE CO. V. CONSOLIDATED SAFETY
VALVE CO., 141 U.S. 441. 

THIS COURT IN SOFTENING THE PREVIOUS HARD AND FAST "ALTERNATIVE RULE"
OF GARRETSON V. CLARK, 111 U.S. 120, AS RESPECTS BURDEN OF PROOF, BY
ITS DECISIONS IN WESTINGHOUSE CO. V. WAGNER, 225 U.S. 604, AND DOWAGIAC
MFG. CO. V. MINNESOTA PLOW CO., 235 U.S. 641, HAS RESTRICTED ITS
APPLICATION TO THOSE CASES WHERE THE INFRINGEMENT WAS NOT DONE IN BAD
FAITH. 

SEE, UNDERWOOD TYPEWRITER CO. V. FOX TYPEWRITER CO., 220 F. 880, 886;
BRENNAN & CO. V. DOWAGIAC MFG. CO., 162 F. 472, 476; DOWAGAIC MFG. CO.
V. SUPERIOR DRILL CO., 162 F. 479; HART V. TEN EYCK, 2 JOHNS CH. 62,
108; LUPTON V. WHITE, 15 VES.  JR. 432-440. 

THE PAYMENT OF $922,141.09 TO MESSRS.  MAYER, RUBIN AND THALBERG, IN
ADDITION TO SALARIES OF $130,000, $104,000 AND $208,000 RESPECTIVELY IN
THE YEAR 1932, IS A DISTRIBUTION OF PROFITS AND IS NOT PROPERLY ALLOWED
AS COST.  LEE V. MALLEABLE IRON RANGE CO., 247 F. 795, 798. 

THE STATUTE WAS FRAMED (1) TO PUNISH THE INFRINGER, AND (2) TO
COMPENSATE THE COPYRIGHT OWNER FOR HIS LOSS.  PROVIDENCE RUBBER CO. V.
GOODYEAR, 76 U.S. 788, 804; DEAN V. MASON, 20 HOW.  198; ROOT V.
RAILWAY CO., 105 U.S. 189, 207; FERRIS V. FROHMAN, 223 U.S. 424, 437;
LARSON CO. V. WRIGLEY CO., 277 U.S. 97. 

A DELIBERATE TRESPASSER IS NOT ENTITLED TO COST.  BOLLES WOODENWARE
CO. V. UNITED STATES, 106 U.S. 432; GUFFEY V. SMITH, 237 U.S. 101;
WILLIAMSON V. CHICAGO MILL & LUMBER CORP., 59 F.2D 918; PITTSBURGH &
WEST VIRGINIA GAS CO. V. PENTRESS GAS CO., 7 A.L.R. 901; 100 S.E. 296;
RESTATEMENT OF THE LAW ON RESTITUTION, SEC. 158 AT PAGE 632. 

THE "IN LIEU OF" PROVISION IN SEC. 25(B) IS NOT INVOLVED HERE.  IT
MEANS THAT IN THE ABSENCE OF PROFITS THE COURT HAS DISCRETION TO FIX
SUCH DAMAGES AS MAY BE JUST.  DOUGLAS V. CUNNINGHAM, 294 U.S. 207, 209;
DAVILLA V. BRUNSWICK-BALKE-COLLENDER CO., 94 F.2D 567; HENDRICKS V.
THOMAS, 242 F. 37, 41; DAM V. LASHELLE, 175 F. 902, 911. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS PRESENTED ARE WHETHER, IN COMPUTING AN AWARD OF PROFITS
AGAINST AN INFRINGER OF A COPYRIGHT, THERE MAY BE AN APPORTIONMENT SO
AS TO GIVE TO THE OWNER OF THE COPYRIGHT ONLY THAT PART OF THE PROFITS
FOUND TO BE ATTRIBUTABLE TO THE USE OF THE COPYRIGHTED MATERIAL AS
DISTINGUISHED FROM WHAT THE INFRINGER HIMSELF HAS SUPPLIED, AND, IF SO,
WHETHER THE EVIDENCE AFFORDS A PROPER BASIS FOR THE APPORTIONMENT
DECREED IN THIS CASE. 

PETITIONERS' COMPLAINT CHARGED INFRINGEMENT OF THEIR PLAY "DISHONORED
LADY" BY RESPONDENTS' MOTION PICTURE "LETTY LYNTON," AND SOUGHT AN
INJUNCTION AND AN ACCOUNTING OF PROFITS.  THE CIRCUIT COURT OF APPEALS,
REVERSING THE DISTRICT COURT, FOUND AND ENJOINED THE INFRINGEMENT AND
DIRECTED AN ACCOUNTING.  81 F.2D 49.  THEREUPON THE DISTRICT COURT
CONFIRMED WITH SLIGHT MODIFICATIONS THE REPORT OF A SPECIAL MASTER
WHICH AWARDED TO PETITIONERS ALL THE NET PROFITS MADE BY RESPONDENTS
FROM THEIR EXHIBITIONS OF THE MOTION PICTURE, AMOUNTING TO
$587,604.37.  26 F.SUPP.  134, 136.  THE CIRCUIT COURT OF APPEALS
REVERSED, HOLDING THAT THERE SHOULD BE AN APPORTIONMENT AND FIXING
PETITIONERS' SHARE OF THE NET PROFITS AT ONE-FIFTH.  106 F.2D 45, 51. 
IN VIEW OF THE IMPORTANCE OF THE QUESTION, WHICH APPEARS TO BE ONE OF
FIRST IMPRESSION IN THE APPLICATION OF THE COPYRIGHT LAW, WE GRANTED
CERTIORARI.  DECEMBER 4, 1939. 

PETITIONERS' PLAY "DISHONORED LADY" WAS BASED UPON THE TRIAL IN
SCOTLAND, IN 1857, OF MADELEINE SMITH FOR THE MURDER OF HER LOVER,  - A
CAUSE CELEBRE INCLUDED IN THE SERIES OF "NOTABLE BRITISH TRIALS" WHICH
WAS PUBLISHED IN 1927.  THE PLAY WAS COPYRIGHTED AS AN UNPUBLISHED WORK
IN 1930, AND WAS PRODUCED HERE AND ABROAD.  RESPONDENTS TOOK THE TITLE
OF THEIR MOTION PICTURE "LETTY LYNTON" FROM A NOVEL OF THAT NAME
WRITTEN BY AN ENGLISH AUTHOR, MRS. BELLOC LOWNDES, AND PUBLISHED IN
1930.  THAT NOVEL WAS ALSO BASED UPON THE STORY OF MADELEINE SMITH AND
THE MOTION PICTURE RIGHTS WERE BOUGHT BY RESPONDENTS.  THERE HAD BEEN
NEGOTIATIONS FOR THE MOTION PICTURE RIGHTS IN PETITIONERS' PLAY, AND
THE PRICE HAD BEEN FIXED AT $30,000, BUT THESE NEGOTIATIONS FELL
THROUGH. 

AS THE COURT OF APPEALS FOUND, RESPONDENTS IN PRODUCING THE MOTION
PICTURE IN QUESTION WORKED OVER OLD MATERIAL; "THE GENERAL SKELETON WAS
ALREADY IN THE PUBLIC DEMENSE.  A WANTON GIRL KILLS HER LOVER TO FREE
HERSELF FOR A BETTER MATCH; SHE IS BROUGHT TO TRIAL FOR THE MURDER AND
ESCAPES."  BUT NOT CONTENT WITH THE MERE USE OF THAT BASIC PLOT,
RESPONDENTS RESORTED TO PETITIONERS' COPYRIGHTED PLAY.  THEY WERE NOT
INNOCENT OFFENDERS.  FROM COMPARISON AND ANALYSIS, THE COURT OF APPEALS
CONCLUDED THAT THEY HAD "DELIBERATELY LIFTED THE PLAY"; THEIR
"BORROWING WAS A DELIBERATE PLAGIARISM."  IT IS FROM THAT STANDPOINT
THAT WE APPROACH THE QUESTIONS NOW RAISED. 

RESPONDENTS CONTEND THAT THE MATERIAL TAKEN BY INFRINGEMENT
CONTRIBUTED IN BUT A SMALL MEASURE TO THE PRODUCTION AND SUCCESS OF THE
MOTION PICTURE.  THEY SAY THAT THEY THEMSELVES CONTRIBUTED THE MAIN
FACTORS IN PRODUCING THE LARGE NET PROFITS; THAT IS, THE POPULAR
ACTORS, THE SCENERY, AND THE EXPERT PRODUCERS AND DIRECTORS.  BOTH
COURTS BELOW HAVE SUSTAINED THIS CONTENTION. 

THE DISTRICT COURT THOUGHT IT "PUNITIVE AND UNJUST" TO AWARD ALL THE
NET PROFITS TO PETITIONERS.  THE COURT SAID THAT, IF THAT WERE DONE,
PETITIONERS WOULD RECEIVE THE PROFITS THAT THE "MOTION PICTURE STARS"
HAD MADE FOR THE PICTURE "BY THEIR DRAMATIC TALENT AND THE DRAWING
POWER OF THEIR REPUTATIONS."  "THE DIRECTORS WHO SUPERVISED THE
PRODUCTION OF THE PICTURE AND THE EXPERTS WHO FILMED IT ALSO
CONTRIBUTED IN PILING UP THESE TREMENDOUS NET PROFITS."  THE COURT
THOUGHT AN ALLOWANCE TO PETITIONERS OF 25 PER CENT. OF THESE PROFITS
"COULD BE JUSTLY FIXED AS A LIMIT BEYOND WHICH COMPLAINANTS WOULD BE
RECEIVING PROFITS IN NO WAY ATTRIBUTABLE TO THE USE OF THEIR PLAY IN
THE PRODUCTION OF THE PICTURE."  BUT, THOUGH HOLDING THESE VIEWS, THE
DISTRICT COURT AWARDED ALL THE NET PROFITS TO PETITIONERS, FEELING
BOUND BY THE DECISION OF THE COURT OF APPEALS IN DAM V. KIRK LA SHELLE
CO., 175 F. 902, 903, A DECISION WHICH THE COURT OF APPEALS HAS NOW
OVERRULED.    THE COURT OF APPEALS WAS SATISFIED THAT BUT A SMALL PART
OF THE NET PROFITS WAS ATTRIBUTABLE TO THE INFRINGEMENT, AND, FULLY
RECOGNIZING THE DIFFICULTY IN FINDING A SATISFACTORY STANDARD, THE
COURT DECIDED THAT THERE SHOULD BE AN APPORTIONMENT AND THAT IT COULD
FAIRLY BE MADE.  THE COURT WAS RESOLVED "TO AVOID THE ONE CERTAINLY
UNJUST COURSE OF GIVING THE PLAINTIFFS EVERYTHING, BECAUSE THE
DEFENDANTS CANNOT WITH CERTAINTY COMPUTE THEIR OWN SHARE."  THE COURT
WOULD NOT DENY "THE ONE FACT THAT STANDS UNDOUBTED," AND, MAKING THE
BEST ESTIMATE IT COULD, IT FIXED PETITIONERS' SHARE AT ONE-FIFTH OF THE
NET PROFITS, CONSIDERING THAT TO BE A FIGURE "WHICH WILL FAVOR THE
PLAINTIFFS IN EVERY REASONABLE CHANCE OF ERROR." 

FIRST.  PETITIONERS INSIST FUNDAMENTALLY THAT THERE CAN BE NO
APPORTIONMENT OF PROFITS IN A SUIT FOR A COPYRIGHT INFRINGEMENT; THAT
IT IS FORBIDDEN BOTH BY THE STATUTE AND THE DECISIONS OF THIS COURT. 
WE FIND THIS BASIC ARGUMENT TO BE UNTENABLE. 

THE COPYRIGHT ACT IN SEC. 25(B)  FN1  PROVIDES THAT AN INFRINGER
SHALL BE LIABLE - 

"(B)  TO PAY TO THE COPYRIGHT PROPRIETOR SUCH DAMAGES AS THE
COPYRIGHT PROPRIETOR MAY HAVE SUFFERED DUE TO THE INFRINGEMENT, AS WELL
AS ALL THE PROFITS WHICH THE INFRINGER SHALL HAVE MADE FROM SUCH
INFRINGEMENT,  ...  OR IN LIEU OF ACTUAL DAMAGES AND PROFITS, SUCH
DAMAGES AS TO THE COURT SHALL APPEAR TO BE JUST,  ...  " 

WE AGREE WITH PETITIONERS THAT THE "IN LIEU" CLAUSE IS NOT APPLICABLE
HERE, AS THE PROFITS HAVE BEEN PROVED AND THE ONLY QUESTION IS AS TO
THEIR APPORTIONMENT. 

PETITIONERS STRESS THE PROVISION FOR RECOVERY OF "ALL" THE PROFITS,
BUT THIS IS PLAINLY QUALIFIED BY THE WORDS "WHICH THE INFRINGER SHALL
HAVE MADE FROM SUCH INFRINGEMENT."  THIS PROVISION IN PURPOSE IS
COGNATE TO THAT FOR THE RECOVERY OF "SUCH DAMAGES AS THE COPYRIGHT
PROPRIETOR MAY HAVE SUFFERED DUE TO THE INFRINGEMENT."  THE PURPOSE IS
THUS TO PROVIDE JUST COMPENSATION FOR THE WRONG, NOT TO IMPOSE A
PENALTY BY GIVING TO THE COPYRIGHT PROPRIETOR PROFITS WHICH ARE NOT
ATTRIBUTABLE TO THE INFRINGEMENT. 

PRIOR TO THE COPYRIGHT ACT OF 1909, THERE HAD BEEN NO STATUTORY
PROVISION FOR THE RECOVERY OF PROFITS, BUT THAT RECOVERY HAD BEEN
ALLOWED IN EQUITY BOTH IN COPYRIGHT AND PATENT CASES AS APPROPRIATE
EQUITABLE RELIEF INCIDENT TO A DECREE FOR AN INJUNCTION.  STEVENS V.
GLADDING, 17 HOW.  447, 455.  THAT RELIEF HAD BEEN GIVEN IN ACCORDANCE
WITH THE PRINCIPLES GOVERNING EQUITY JURISDICTION, NOT TO INFLICT
PUNISHMENT BUT TO PREVENT AN UNJUST ENRICHMENT BY ALLOWING INJURED
COMPLAINANTS TO CLAIM "THAT WHICH, EX AEQUO ET BONO, IS THEIRS, AND
NOTHING BEYOND THIS."  LIVINGSTON V. WOODWORTH, 15 HOW.  546, 560.  SEE
ROOT V. RAILWAY CO., 105 U.S. 189, 194, 195.  STATUTORY PROVISION FOR
THE RECOVERY OF PROFITS IN PATENT CASES WAS ENACTED IN 1870.  FN2  THE
PRINCIPLE WHICH WAS APPLIED BOTH PRIOR TO THIS STATUTE AND LATER WAS
THUS STATED IN THE LEADING CASE OF TILGHMAN V. PROCTOR, 125 U.S. 136,
146: 

"THE INFRINGER IS LIABLE FOR ACTUAL, NOT FOR POSSIBLE GAINS.  THE
PROFITS, THEREFORE, WHICH HE MUST ACCOUNT FOR, ARE NOT THOSE WHICH HE
MIGHT REASONABLY HAVE MADE, BUT THOSE WHICH HE DID MAKE, BY THE USE OF
THE PLAINTIFF'S INVENTION; OR, IN OTHER WORDS, THE FRUITS OF THE
ADVANTAGE WHICH HE DERIVED FROM THE USE OF THAT INVENTION, OVER WHAT HE
WOULD HAVE HAD IN USING OTHER MEANS THEN OPEN TO THE PUBLIC AND
ADEQUATE TO ENABLE HIM TO OBTAIN AN EQUALLY BENEFICIAL RESULT.  IF
THERE WAS NO SUCH ADVANTAGE IN HIS USE OF THE PLAINTIFF'S INVENTION,
THERE CAN BE NO DECREE FOR PROFITS, AND THE PLAINTIFF'S ONLY REMEDY IS
BY AN ACTION AT LAW FOR DAMAGES." 

IN PASSING THE COPYRIGHT ACT, THE APPARENT INTENTION OF CONGRESS WAS
TO ASSIMILATE THE REMEDY WITH RESPECT TO THE RECOVERY OF PROFITS TO
THAT ALREADY RECOGNIZED IN PATENT CASES.  NOT ONLY IS THERE NO
SUGGESTION THAT CONGRESS INTENDED THAT THE AWARD OF PROFITS SHOULD BE
GOVERNED BY A DIFFERENT PRINCIPLE IN COPYRIGHT CASES BUT THE CONTRARY
IS CLEARLY INDICATED BY THE COMMITTEE REPORTS ON THE BILL.  AS TO SEC.
25(B) THE HOUSE COMMITTEE SAID:  FN3 

"SECTION 25 DEALS WITH THE MATTER OF CIVIL REMEDIES FOR INFRINGEMENT
OF A COPYRIGHT.  ...  THE PROVISION THAT THE COPYRIGHT PROPRIETOR MAY
HAVE SUCH DAMAGES AS WELL AS THE PROFITS WHICH THE INFRINGER SHALL HAVE
MADE IS SUBSTANTIALLY THE SAME PROVISION FOUND IN SECTION 4921 OF THE
REVISED STATUTES RELATING TO REMEDIES FOR THE INFRINGEMENT OF PATENTS. 
THE COURTS HAVE USUALLY CONSTRUED THAT TO MEAN THAT THE OWNER OF THE
PATENT MIGHT HAVE ONE OR THE OTHER, WHICHEVER WAS THE GREATER.  AS SUCH
A PROVISION WAS FOUND BOTH IN THE TRADE-MARK AND PATENT LAWS, THE
COMMITTEE FELT THAT IT MIGHT BE PROPERLY INCLUDED IN THE COPYRIGHT
LAWS." 

WE SHALL PRESENTLY CONSIDER THE DOCTRINE WHICH HAS BEEN ESTABLISHED
UPON EQUITABLE PRINCIPLES WITH RESPECT TO THE APPORTIONMENT OF PROFITS
IN CASES OF PATENT INFRINGEMENT.  WE NOW OBSERVE THAT THERE IS NOTHING
IN THE COPYRIGHT ACT WHICH PRECLUDES THE APPLICATION OF A SIMILAR
DOCTRINE BASED UPON THE SAME EQUITABLE PRINCIPLES IN CASES OF COPYRIGHT
INFRINGEMENT. 

NOR DO THE DECISIONS OF THIS COURT PRECLUDE THAT COURSE.  PETITIONERS
INVOKE THE CASES OF CALLAGHAN V. MYERS, 128 U.S. 617, AND BELFORD V.
SCRIBNER, 144 U.S. 488.  IN THE CALLAGHAN CASE, THE COPYRIGHT OF A
REPORTER OF JUDICIAL DECISIONS WAS SUSTAINED WITH RESPECT TO THE
PORTIONS OF THE BOOKS OF WHICH HE WAS THE AUTHOR, ALTHOUGH HE HAD NO
EXCLUSIVE RIGHT IN THE JUDICIAL OPINIONS.  ON AN ACCOUNTING FOR THE
PROFITS MADE BY AN INFRINGER, THE COURT ALLOWED THE DEDUCTION FROM THE
SELLING PRICE OF THE ACTUAL AND LEGITIMATE MANUFACTURING COST.  WITH
REFERENCE TO THE PUBLISHED MATTER TO WHICH THE COPYRIGHT DID NOT
EXTEND, THE COURT FOUND IT IMPOSSIBLE TO SEPARATE THE PROFITS ON THAT
FROM THE PROFITS ON THE OTHER.  AND IN VIEW OF THAT IMPOSSIBILITY, THE
DEFENDANT, BEING RESPONSIBLE FOR THE BLENDING OF THE LAWFUL WITH THE
UNLAWFUL, HAD TO ABIDE THE CONSEQUENCES, AS IN THE CASE OF ONE WHO HAS
WRONGFULLY PRODUCED A CONFUSION OF GOODS.  A SIMILAR IMPOSSIBILITY WAS
ENCOUNTERED IN BELFORD V. SCRIBNER, A CASE OF A COPYRIGHT OF A BOOK
CONTAINING RECIPES FOR THE HOUSEHOLD.  THE INFRINGING BOOKS WERE
LARGELY COMPILATIONS OF THESE RECIPES, "THE MATTER AND LANGUAGE" BEING
"THE SAME AS THE COMPLAINANT'S IN EVERY SUBSTANTIAL SENSE," BUT SO
DISTRIBUTED THROUGH THE DEFENDANTS' BOOKS THAT IT WAS "ALMOST
IMPOSSIBLE TO SEPARATE THE ONE FROM THE OTHER."  THE COURT RULED THAT
WHEN THE COPYRIGHTED PORTIONS ARE SO INTERMINGLED WITH THE REST OF THE
PIRATICAL WORK "THAT THEY CANNOT WELL BE DISTINGUISHED FROM IT," THE
ENTIRE PROFITS REALIZED BY THE DEFENDANTS WILL BE GIVEN TO THE
PLAINTIFF. 

WE AGREE WITH THE COURT BELOW THAT THESE CASES DO NOT DECIDE THAT NO
APPORTIONMENT OF PROFITS CAN BE HAD WHERE IT IS CLEAR THAT ALL THE
PROFITS ARE NOT DUE TO THE USE OF THE COPYRIGHTED MATERIAL, AND THE
EVIDENCE IS SUFFICIENT TO PROVIDE A FAIR BASIS OF DIVISION SO AS TO
GIVE TO THE COPYRIGHT PROPRIETOR ALL THE PROFITS THAT CAN BE DEEMED TO
HAVE RESULTED FROM THE USE OF WHAT BELONGED TO HIM.  BOTH THE COPYRIGHT
ACT AND OUR DECISIONS LEAVE THE MATTER TO THE APPROPRIATE EXERCISE OF
THE EQUITY JURISDICTION UPON AN ACCOUNTING TO DETERMINE THE PROFITS
"WHICH THE INFRINGER SHALL HAVE MADE FROM SUCH INFRINGEMENT." 

SECOND.  THE ANALOGY FOUND IN CASES OF PATENT INFRINGEMENT IS
PERSUASIVE.  THERE ARE MANY CASES IN WHICH THE PLAINTIFF'S PATENT
COVERS ONLY A PART OF A MACHINE AND CREATES ONLY A PART OF THE
PROFITS.  THE PATENTED INVENTION MAY HAVE BEEN USED IN COMBINATION WITH
ADDITIONS OR VALUABLE IMPROVEMENTS MADE BY THE INFRINGER AND EACH MAY
HAVE CONTRIBUTED TO THE PROFITS.  IN ELIZABETH V. PAVEMENT CO., 97 U.S.
126, 142, CITED IN THE CALLAGHAN AND BELFORD CASES, SUPRA, IT HAD BEEN
RECOGNIZED THAT IF A SEPARATION OF DISTINCT PROFIT DERIVED FROM SUCH
ADDITIONS OR IMPROVEMENTS WAS SHOWN, AN APPORTIONMENT MIGHT BE HAD. 
SEE GARRETSON V. CLARK, 111 U.S. 120, 121.  THE SUBJECT WAS ELABORATELY
DISCUSSED IN THE CASE OF WESTINGHOUSE CO. V. WAGNER CO., 225 U.S. 604,
WHERE IT WAS DISTINCTLY RULED THAT "IF PLAINTIFF'S PATENT ONLY CREATED
A PART OF THE PROFITS, HE IS ONLY ENTITLED TO RECOVER THAT PART OF THE
NET GAINS."  THERE, THE COURT WAS CONCERNED WITH THE QUESTION OF BURDEN
OF PROOF.  IT WAS SAID THAT THE PLAINTIFF SUING FOR PROFITS WAS UNDER
THE BURDEN OF SHOWING THAT THEY HAD BEEN MADE.  THE DEFENDANT HAD
SUBMITTED EVIDENCE TENDING TO SHOW THAT IT HAD ADDED NON-INFRINGING AND
VALUABLE IMPROVEMENTS WHICH HAD CONTRIBUTED TO THE MAKING OF PROFITS;
AND THE PLAINTIFF IN REPLY HAD INSISTED THAT THESE ADDITIONS HAD MADE
NO SUCH CONTRIBUTION.  BUT ASSUMING, AS HAD BEEN FOUND, THAT THE
ADDITIONS WERE NON-INFRINGING AND VALUABLE IMPROVEMENTS, AND A PRIMA
FACIE CASE OF CONTRIBUTION TO PROFITS THUS APPEARING, THE BURDEN OF
APPORTIONMENT WOULD REST UPON THE PLAINTIFF.  BUT IN THAT RELATION IT
HAD STILL TO BE CONSIDERED THAT THE ACT OF THE DEFENDANT HAD MADE IT
"NOT MERELY DIFFICULT BUT IMPOSSIBLE TO CARRY THE BURDEN OF
APPORTIONMENT" AND IN SUCH CASE, AS THE "INSEPARABLE PROFIT MUST BE
GIVEN TO THE PATENTEE OR INFRINGER," THE LAW PLACED THE LOSS ON THE
WRONGDOER. 

THE QUESTION OF BURDEN OF PROOF DOES NOT ARISE IN THE INSTANT CASE,
AS HERE THE DEFENDANTS VOLUNTARILY ASSUMED THAT BURDEN AND THE COURT
BELOW HAS HELD THAT IT HAS BEEN SUSTAINED.  WHAT IS APPOSITE, HOWEVER,
IS THE RULING IN THE WESTINGHOUSE CASE AS TO APPORTIONMENT AND THE SORT
OF EVIDENCE ADMISSIBLE UPON THAT QUESTION.  THE COURT POINTED TO THE
DIFFICULTIES OF WORKING OUT AN ACCOUNT OF PROFITS AND THOUGHT THAT THE
PROBLEM WAS ANALOGOUS TO THAT PRESENTED WHERE IT IS NECESSARY TO
SEPARATE INTERSTATE FROM INTRASTATE EARNINGS AND EXPENSES IN ORDER TO
DETERMINE WHETHER AN INTRASTATE RATE IS CONFISCATORY.  THE COURT
OBSERVED THAT "WHILE RECOGNIZING THE IMPOSSIBILITY OF REACHING A
CONCLUSION THAT IS MATHEMATICALLY EXACT," THERE HAS BEEN RECEIVED, IN
ADDITION TO OTHER RELEVANT EVIDENCE, "THE TESTIMONY OF EXPERTS AS TO
THE RELATIVE COST OF DOING A LOCAL AND THROUGH BUSINESS."  CHICAGO, M.
& ST. P. RY. CO. V. TOMPKINS, 176 U.S. 167, 178.  THE COURT THOUGHT
THAT "WHAT IS PERMISSIBLE IN AN EFFORT TO SEPARATE COSTS MAY ALSO BE
DONE IN A PATENT CASE WHERE IT IS NECESSARY TO SEPARATE PROFITS." 

THE PRINCIPLE AS TO APPORTIONMENT OF PROFITS WAS CLEARLY STATED IN
THE CASE OF DOWAGIAC CO. V. MINNESOTA CO., 235 U.S. 641,  - A CASE
WHICH RECEIVED GREAT CONSIDERATION.  THE COURT THERE SAID: 

"WE THINK THE EVIDENCE, ALTHOUGH SHOWING THAT THE INVENTION WAS
MERITORIOUS AND MATERIALLY CONTRIBUTED TO THE VALUE OF THE INFRINGING
DRILLS AS MARKETABLE MACHINES, MADE IT CLEAR THAT THEIR VALUE WAS NOT
ENTIRELY ATTRIBUTABLE TO THE INVENTION, BUT WAS DUE IN A SUBSTANTIAL
DEGREE TO THE UNPATENTED PARTS OR FEATURES.  THE MASTERS AND THE COURTS
BELOW SO FOUND AND WE SHOULD HESITATE TO DISTURB THEIR CONCURRING
CONCLUSIONS UPON THIS QUESTION OF FACT, EVEN HAD THE EVIDENCE BEEN LESS
CLEAR THAN IT WAS. 

"IN SO FAR AS THE PROFITS FROM THE INFRINGING SALES WERE ATTRIBUTABLE
TO THE PATENTED IMPROVEMENTS THEY BELONGED TO THE PLAINTIFF, AND IN SO
FAR AS THEY WERE DUE TO OTHER PARTS OR FEATURES THEY BELONGED TO THE
DEFENDANTS.  BUT AS THE DRILLS WERE SOLD IN COMPLETED AND OPERATIVE
FORM THE PROFITS RESULTING FROM THE SEVERAL PARTS WERE NECESSARILY
COMMINGLED.  IT WAS ESSENTIAL THEREFORE THAT THEY BE SEPARATED OR
APPORTIONED BETWEEN WHAT WAS COVERED BY THE PATENT AND WHAT WAS NOT
COVERED BY IT, FOR, AS WAS SAID IN WESTINGHOUSE CO. V. WAGNER CO.,
SUPRA (225 U.S. 615): 'IN SUCH CASE, IF PLAINTIFF'S PATENT ONLY CREATED
A PART OF THE PROFITS, HE IS ONLY ENTITLED TO RECOVER THAT PART OF THE
NET GAINS.'"  ID., 646. 

IN THE DOWAGIAC CASE, WE AGAIN REFERRED TO THE DIFFICULTY OF MAKING
AN EXACT APPORTIONMENT AND AGAIN OBSERVED THAT MATHEMATICAL EXACTNESS
WAS NOT POSSIBLE.  WHAT WAS REQUIRED WAS ONLY "REASONABLE
APPROXIMATION" WHICH USUALLY MAY BE ATTAINED "THROUGH THE TESTIMONY OF
EXPERTS AND PERSONS INFORMED BY OBSERVATION AND EXPERIENCE."  TESTIMONY
OF THIS CHARACTER WAS SAID TO BE "GENERALLY HELPFUL AND AT TIMES
INDISPENSABLE IN THE SOLUTION OF SUCH PROBLEMS."  THE RESULT TO BE
ACCOMPLISHED "IS A RATIONAL SEPARATION OF THE NET PROFITS SO THAT
NEITHER PARTY MAY HAVE WHAT RIGHTFULLY BELONGS TO THE OTHER."  ID., P.
647. 

WE SEE NO REASON WHY THESE PRINCIPLES SHOULD NOT BE APPLIED IN
COPYRIGHT CASES.  PETITIONERS CITE OUR DECISION IN THE TRADE-MARK CASE
OF HAMILTON-BROWN SHOE CO. V. WOLF BROS. CO., 240 U.S. 251, BUT THE
COURT THERE, RECOGNIZING THE RULINGS IN THE WESTINGHOUSE AND DOWAGIAC
CASES, FOUND ON THE FACTS THAT AN APPORTIONMENT OF PROFITS WAS
"INHERENTLY IMPOSSIBLE."  THE BURDEN CAST UPON THE DEFENDANT HAD NOT
BEEN SUSTAINED. 

IN 1922, SOME YEARS AFTER THE DOWAGIAC DECISION, AND IN HARMONY WITH
IT, CONGRESS AMENDED SEC. 70 OF THE PATENT LAW  FN4  SO AS TO PROVIDE
EXPRESSLY THAT IF "DAMAGES OR PROFITS ARE NOT SUSCEPTIBLE OF
CALCULATION AND DETERMINATION WITH REASONABLE CERTAINTY, THE COURT MAY,
ON EVIDENCE TENDING TO ESTABLISH THE SAME, IN ITS DISCRETION, RECEIVE
OPINION OR EXPERT TESTIMONY, WHICH IS HEREBY DECLARED TO BE COMPETENT
AND ADMISSIBLE, SUBJECT TO THE GENERAL RULES OF EVIDENCE APPLICABLE TO
THIS CHARACTER OF TESTIMONY."  THE AMENDMENT, SO FAR AS IT RELATES TO
THE RECEPTION OF EXPERT TESTIMONY, RECOGNIZED AND CANNOT BE DEEMED TO
ENLARGE THE RULES ALREADY APPLIED IN COURTS OF EQUITY, AND THE FACT
THAT THE COPYRIGHT LAW WAS NOT SIMILARLY AMENDED CANNOT BE CONSIDERED
TO DETRACT FROM THE JURISDICTION OF THE COURT TO RECEIVE SIMILAR
EVIDENCE IN COPYRIGHT CASES WHENEVER IT IS FOUND TO BE COMPETENT. 
PETITIONERS STRESS THE POINT THAT RESPONDENTS HAVE BEEN FOUND GUILTY OF
DELIBERATE PLAGIARISM, BUT WE PERCEIVE NO GROUND FOR SAYING THAT IN
AWARDING PROFITS TO THE COPYRIGHT PROPRIETOR AS A MEANS OF
COMPENSATION, THE COURT MAY MAKE AN AWARD OF PROFITS WHICH HAVE BEEN
SHOWN NOT TO BE DUE TO THE INFRINGEMENT.  THAT WOULD BE NOT TO DO
EQUITY BUT TO INFLICT AN UNAUTHORIZED PENALTY.  TO CALL THE INFRINGER A
TRUSTEE EX MALEFICIO MERELY INDICATES "A MODE OF APPROACH AND AN
IMPERFECT ANALOGY BY WHICH THE WRONGDOER WILL BE MADE TO HAND OVER THE
PROCEEDS OF HIS WRONG."  LARSON CO. V. WRIGLEY CO., 277 U.S. 97, 99,
100.  HE IS IN THE POSITION OF ONE WHO HAS CONFUSED HIS OWN GAINS WITH
THOSE WHICH BELONG TO ANOTHER.  WESTINGHOUSE CO. V. WAGNER CO., SUPRA,
P. 618.  HE "MUST YIELD THE GAINS BEGOTTEN OF HIS WRONG."  DUPLATE
CORP. V. TRIPLEX CO., 298 U.S. 448, 457.  WHERE THERE IS A COMMINGLING
OF GAINS, HE MUST ABIDE THE CONSEQUENCES, UNLESS HE CAN MAKE A
SEPARATION OF THE PROFITS SO AS TO ASSURE TO THE INJURED PARTY ALL THAT
JUSTLY BELONGS TO HIM.  WHEN SUCH AN APPORTIONMENT HAS BEEN FAIRLY
MADE, THE COPYRIGHT PROPRIETOR RECEIVES ALL THE PROFITS WHICH HAVE BEEN
GAINED THROUGH THE USE OF THE INFRINGING MATERIAL AND THAT IS ALL THAT
THE STATUTE AUTHORIZES AND EQUITY SANCTIONS. 

BOTH COURTS BELOW HAVE HELD IN THIS CASE THAT BUT A SMALL PART OF THE
PROFITS WERE DUE TO THE INFRINGEMENT, AND, ACCEPTING THAT FACT AND THE
PRINCIPLE THAT AN APPORTIONMENT MAY BE HAD IF THE EVIDENCE JUSTIFIES
IT, WE PASS TO THE CONSIDERATION OF THE BASIS OF THE ACTUAL
APPORTIONMENT WHICH HAS BEEN ALLOWED. 

THIRD.  THE CONTROLLING FACT IN THE DETERMINATION OF THE
APPORTIONMENT WAS THAT THE PROFITS HAD BEEN DERIVED, NOT FROM THE MERE
PERFORMANCE OF A COPYRIGHTED PLAY, BUT FROM THE EXHIBITION OF A MOTION
PICTURE WHICH HAD ITS DISTINCTIVE PROFIT-MAKING FEATURES, APART FROM
THE USE OF ANY INFRINGING MATERIAL, BY REASON OF THE EXPERT AND
CREATIVE OPERATIONS INVOLVED IN ITS PRODUCTION AND DIRECTION.  IN THAT
ASPECT THE CASE HAS A CERTAIN RESEMBLANCE TO THAT OF A PATENT
INFRINGEMENT, WHERE THE INFRINGER HAS CREATED PROFITS BY THE ADDITION
OF NON-INFRINGING AND VALUABLE IMPROVEMENTS.  AND, IN THIS INSTANCE, IT
PLAINLY APPEARED THAT WHAT RESPONDENTS HAD CONTRIBUTED ACCOUNTED FOR BY
FAR THE LARGER PART OF THEIR GAINS. 

RESPONDENTS HAD STRESSED THE FACT THAT, ALTHOUGH THE NEGOTIATIONS HAD
NOT RIPENED INTO A PURCHASE, THE PRICE WHICH HAD BEEN SET FOR THE
MOTION PICTURE RIGHTS IN "DISHONORED LADY" HAD BEEN BUT $30,000.  AND
RESPONDENTS' WITNESSES CITED NUMEROUS INSTANCES WHERE THE VALUE,
ACCORDING TO SALES, OF MOTION PICTURE RIGHTS HAD BEEN PUT AT RELATIVELY
SMALL SUMS.  BUT THE COURT BELOW REJECTED AS A CRITERION THE PRICE PUT
UPON THE MOTION PICTURE RIGHTS, AS A BARGAIN HAD NOT BEEN CONCLUDED AND
THE INFERENCES WERE TOO DOUBTFUL.  THE COURT ALSO RULED THAT
RESPONDENTS COULD NOT COUNT THE EFFECT OF "THEIR STANDING AND
REPUTATION IN THE INDUSTRY."  THE COURT PERMITTED RESPONDENTS TO BE
CREDITED "ONLY WITH SUCH FACTORS AS THEY BOUGHT AND PAID FOR; THE
ACTORS, THE SCENERY, THE PRODUCERS, THE DIRECTORS AND THE GENERAL
OVERHEAD." 

THE TESTIMONY SHOWED QUITE CLEARLY THAT IN THE CREATION OF PROFITS
FROM THE EXHIBITION OF A MOTION PICTURE, THE TALENT AND POPULARITY OF
THE "MOTION PICTURE STARS" GENERALLY CONSTITUTES THE MAIN DRAWING POWER
OF THE PICTURE, AND THAT THIS IS ESPECIALLY TRUE WHERE THE TITLE OF THE
PICTURE IS NOT IDENTIFIED WITH ANY WELL-KNOWN PLAY OR NOVEL.  HERE, IT
APPEARED THAT THE PICTURE DID NOT BEAR THE TITLE OF THE COPYRIGHTED
PLAY AND THAT IT WAS NOT PRESENTED OR ADVERTISED AS HAVING ANY
CONNECTION WHATEVER WITH THE PLAY.  IT WAS ALSO SHOWN THAT THE PICTURE
HAD BEEN "SOLD," THAT IS, LICENSED TO ALMOST ALL THE EXHIBITORS AS
IDENTIFIED SIMPLY WITH THE NAME OF A POPULAR MOTION PICTURE ACTRESS
BEFORE EVEN THE TITLE "LETTY LYNTON" WAS USED.  IN ADDITION TO THE
DRAWING POWER OF THE "MOTION PICTURE STARS," OTHER FACTORS IN CREATING
THE PROFITS WERE FOUND IN THE ARTISTIC CONCEPTIONS AND IN THE EXPERT
SUPERVISION AND DIRECTION OF THE VARIOUS PROCESSES WHICH MADE POSSIBLE
THE COMPOSITE RESULT WITH ITS ATTRACTIVENESS TO THE PUBLIC. 

UPON THESE VARIOUS CONSIDERATIONS, WITH ELABORATION OF DETAIL,
RESPONDENTS' EXPERT WITNESSES GAVE THEIR VIEWS AS TO THE EXTENT TO
WHICH THE USE OF THE COPYRIGHTED MATERIAL HAD CONTRIBUTED TO THE
PROFITS IN QUESTION.  THE UNDERLYING FACTS AS TO THE FACTORS IN
SUCCESSFUL PRODUCTION AND EXHIBITION OF MOTION PICTURES WERE ABUNDANTLY
PROVED, BUT, AS THE COURT BELOW RECOGNIZED, THE ULTIMATE ESTIMATES OF
THE EXPERT WITNESSES WERE ONLY THE EXPRESSION "OF THEIR VERY DECIDED
OPINIONS."  THESE WITNESSES WERE IN COMPLETE AGREEMENT THAT THE PORTION
OF THE PROFITS ATTRIBUTABLE TO THE USE OF THE COPYRIGHTED PLAY IN THE
CIRCUMSTANCES HERE DISCLOSED WAS VERY SMALL.  THEIR ESTIMATES GIVEN IN
PERCENTAGES OF RECEIPTS RAN FROM FIVE TO TWELVE PER CENT; THE ESTIMATE
APPARENTLY MOST FAVORED WAS TEN PER CENT AS THE LIMIT.  ONE FINALLY
EXPRESSED THE VIEW THAT THE PLAY CONTRIBUTED NOTHING.  THERE WAS NO
REBUTTAL.  BUT THE COURT BELOW WAS NOT WILLING TO ACCEPT THE EXPERTS'
TESTIMONY "AT ITS FACE VALUE."  THE COURT FELT THAT IT MUST MAKE AN
AWARD "WHICH BY NO POSSIBILITY SHALL BE TOO SMALL."  DESIRING TO GIVE
PETITIONERS THE BENEFIT OF EVERY DOUBT, THE COURT ALLOWED FOR THE
CONTRIBUTION OF THE PLAY TWENTY PER CENT. OF THE NET PROFITS. 

PETITIONERS ARE NOT IN A POSITION TO COMPLAIN THAT THE AMOUNT THUS
ALLOWED BY THE COURT WAS GREATER THAN THE EXPERT EVIDENCE WARRANTED. 
NOR IS THERE ANY BASIS FOR ATTACK, AND WE DO NOT UNDERSTAND THAT ANY
ATTACK IS MADE, UPON THE QUALIFICATIONS OF THE EXPERTS.  BY VIRTUE OF
AN EXTENSIVE EXPERIENCE, THEY HAD AN INTIMATE KNOWLEDGE OF ALL
PERTINENT FACTS RELATING TO THE PRODUCTION AND EXHIBITION OF MOTION
PICTURES.  NOR CAN WE SAY THAT THE TESTIMONY AFFORDED NO BASIS FOR A
FINDING.  WHAT WE SAID IN THE DOWAGIAC CASE IS EQUALLY TRUE HERE,  -
THAT WHAT IS REQUIRED IS NOT MATHEMATICAL EXACTNESS BUT ONLY A
REASONABLE APPROXIMATION.  THAT, AFTER ALL, IS A MATTER OF JUDGMENT;
AND THE TESTIMONY OF THOSE WHO ARE INFORMED BY OBSERVATION AND
EXPERIENCE MAY BE NOT ONLY HELPFUL BUT, AS WE HAVE SAID, MAY BE
INDISPENSABLE.  EQUITY IS CONCERNED WITH MAKING A FAIR APPORTIONMENT SO
THAT NEITHER PARTY WILL HAVE WHAT JUSTLY BELONGS TO THE OTHER. 
CONFRONTED WITH THE MANIFEST INJUSTICE OF GIVING TO PETITIONERS ALL THE
PROFITS MADE BY THE MOTION PICTURE, THE COURT IN MAKING AN
APPORTIONMENT WAS ENTITLED TO AVAIL ITSELF OF THE EXPERIENCE OF THOSE
BEST QUALIFIED TO FORM A JUDGMENT IN THE PARTICULAR FIELD OF INQUIRY
AND COME TO ITS CONCLUSION AIDED BY THEIR TESTIMONY.  WE SEE NO GREATER
DIFFICULTY IN THE ADMISSION AND USE OF EXPERT TESTIMONY IN SUCH A CASE
THAN IN THE COUNTLESS CASES INVOLVING VALUES OF PROPERTY RIGHTS IN
WHICH SUCH TESTIMONY OFTEN FORMS THE SOLE BASIS FOR DECISION. 

PETITIONERS ALSO COMPLAIN OF DEDUCTIONS ALLOWED IN THE COMPUTATION OF
THE NET PROFITS.  THESE CONTENTIONS INVOLVE QUESTIONS OF FACT WHICH
HAVE BEEN DETERMINED BELOW UPON THE EVIDENCE AND WE FIND NO GROUND FOR
DISTURBING THE COURT'S CONCLUSIONS. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  ACT OF MARCH 4, 1909, SEC. 25, 35 STAT. 1081, AS AMENDED BY ACT
OF AUGUST 24, 1912, 37 STAT. 489.  17 U.S.C., SEC. 25(B). 

FN2  ACT OF JULY 8, 1870, SEC. 55, 16 STAT. 198, 206; R.S. 4921. 

FN3  HOUSE REPORT NO. 2222, 60TH CONG., 2D SESS., P. 15.  SEE, ALSO,
SENATE REPORT NO. 1108, 60TH CONG., 2D SESS., P. 15. 

FN4  ACT OF FEBRUARY 18, 1922, SEC. 8, 42 STAT. 392, AMENDING R.S.
4921.  35 U.S.C. 70. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :














HELVERING V. PRICE, 309 U.S. 409 


NO. 559.  ARGUED MARCH 5, 6, 1940.  - DECIDED MARCH 25, 1940.  - 106
F.2D 336, REVERSED. 


A TAXPAYER, KEEPING ACCOUNTS UPON A CASH BASIS, IS NOT ENTITLED TO
DEDUCT, AS A LOSS SUSTAINED DURING THE TAXABLE YEAR, REVENUE ACT, 1932,
SEC. 23(E), A PAYMENT MADE IN DISCHARGE OF HIS LIABILITY TO A BANK ON A
GUARANTY, BUT MADE BY SUBSTITUTING HIS NEW NOTE TO THE BANK FOR HIS
EARLIER ONE, OF THE SAME AMOUNT.  P. 412. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. PRICE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 308 U.S. 548, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS SUSTAINING A DEFICIENCY ASSESSMENT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

RESPONDENT IN HIS INCOME TAX RETURN FOR 1932 CLAIMED A DEDUCTION FOR
A LOSS UPON A CONTRACT OF GUARANTY.  THE BOARD OF TAX APPEALS SUSTAINED
THE COMMISSIONER IN REFUSING TO ALLOW THE DEDUCTION, AND THE CIRCUIT
COURT OF APPEALS REVERSED.  106 F.2D 336.  BECAUSE OF AN ALLEGED
CONFLICT WITH ECKERT V. BURNET, 283 U.S. 140, JENKINS V. BITGOOD,
C.C.A.2D, 101 F.2D 17, AND FERRIS V. COMMISSIONER, C.C.A.2D, 102 F.2D
985, WE GRANTED CERTIORARI, 308 U.S. 548. 

THE FACTS AS FOUND MAY BE THUS SUMMARIZED:  IN 1929 THE ATLANTIC BANK
AND TRUST COMPANY OF GREENSBORO, NORTH CAROLINA, WAS MERGED WITH THE
NORTH CAROLINA BANK AND TRUST COMPANY.  THE LATTER ACCEPTED
CONDITIONALLY CERTAIN ASSETS OF THE ATLANTIC BANK CALLED "A" ASSETS,
AND CERTAIN OTHER ASSETS, CALLED "B" ASSETS, WERE PLEDGED TO THAT BANK
WITH AUTHORITY TO CHARGE AGAINST THEM ANY LOSSES WHICH MIGHT BE
ESTABLISHED IN REALIZING UPON THE "A" ASSETS.  RESPONDENT AND THREE
OTHER STOCKHOLDERS OF THE ATLANTIC BANK EXECUTED AN AGREEMENT OF
GUARANTY, TO THE EFFECT THAT IF THE NORTH CAROLINA BANK FAILED TO
REALIZE A CERTAIN SUM FROM THE "A" ASSETS WITHIN TWO YEARS THEY WOULD
MAKE UP THE DEFICIENCY IN AN AMOUNT NOT EXCEEDING $500,000.  THE
AGREEMENT PROVIDED THAT ANY SUM REALIZED FROM THE "B" ASSETS WAS TO BE
APPLIED FIRST TO ANY LOSSES OCCURRING IN THE "A" ASSETS AND THEN TO THE
REIMBURSEMENT OF THE FOUR GUARANTORS.  THE PERIOD FOR REALIZING UPON
THE "A" ASSETS WAS EXTENDED UNTIL SEPTEMBER, 1932. 

IN JUNE, 1931, THE NORTH CAROLINA BANK ADVISED THE GUARANTORS THAT
THE "B" ASSETS WERE NOT IN SUCH SHAPE THAT THE BANK COULD USE THEM TO
THE EXTENT NECESSARY FOR BANKING PURPOSES AND REQUESTED THE GUARANTORS
TO PUT THEIR GUARANTY INTO A BANKABLE FORM SO THAT IT COULD BE USED BY
THE BANK TO OBTAIN CREDIT.  RESPONDENT ACCORDINGLY GAVE TO THE BANK HIS
NOTE FOR $125,000 AND ENDORSED THE NOTE OF C. W. GOLD, ANOTHER
GUARANTOR, FOR A LIKE AMOUNT AND ASSIGNED CERTAIN SECURITIES TO THE
BANK AS COLLATERAL FOR THE PAYMENT OF HIS GUARANTY.  THE BANK AGREED
THAT RESPONDENT'S ULTIMATE LIABILITY SHOULD NOT EXCEED $250,000.  AT
THE END OF 1931, THE GUARANTY AGREEMENT WAS STILL IN EFFECT.  THE "B"
ASSETS WERE STILL IN THE PROCESS OF COLLECTION.  NO DEMAND HAD BEEN
MADE UPON RESPONDENT.  WHILE IT WAS KNOWN THAT THERE WOULD BE SOME LOSS
TO THE GUARANTORS, IT WAS NOT DEFINITELY KNOWN IN 1931 WHAT THE LOSS
WOULD BE, AND THE GUARANTORS HAD REASON TO BELIEVE THAT THERE WOULD BE
A SUBSTANTIAL REIMBURSEMENT FROM THE "B" ASSETS OF ANY LOSSES. 

IN THE EARLY PART OF 1932, FINANCIAL CONDITIONS BEING WORSE, THE BANK
CONCLUDED THAT IT WOULD HAVE TO COLLECT UPON THE GUARANTY AND CALLED
UPON RESPONDENT TO MAKE A FINAL SETTLEMENT OF HIS OBLIGATIONS. 
ACCORDINGLY, IN MARCH, 1932, RESPONDENT MADE HIS NOTE TO THE BANK FOR
$250,000 AND RECEIVED BACK THE TWO NOTES.  THE BOARD OF TAX APPEALS
FOUND THAT BOTH RESPONDENT AND THE BANK CONSIDERED THIS TO BE A FINAL
PAYMENT OF THE TWO NOTES WHICH HAD BEEN GIVEN UNDER THE GUARANTY.  THE
BANK RETAINED THE SAME COLLATERAL FOR THE $250,000 NOTE THAT IT HAD
PREVIOUSLY HELD, AND IN DECEMBER, 1932, RESPONDENT SUBSTITUTED THEREFOR
CERTAIN SECURITIES OF HIS OWN. 

RESPONDENT CLAIMED A LOSS IN 1932 IN THE AMOUNT OF $125,000, THAT IS,
FOR HIS ONE-HALF OF THE GUARANTY.  HE DID NOT THEN CLAIM A LOSS ON THE
OTHER ONE-HALF BECAUSE HE STILL HAD A CLAIM AGAINST THE ESTATE OF GOLD
(WHO HAD DIED IN 1932) FOR REIMBURSEMENT.  FOR THAT ONE-HALF,
REPRESENTING GOLD'S PART OF THE GUARANTY, RESPONDENT CLAIMED A LOSS IN
1933 AND THAT DEDUCTION IS NOT HERE INVOLVED. 

RESPONDENT KEPT HIS ACCOUNTS UPON A CASH BASIS.  THE BOARD OF TAX
APPEALS RULED THAT RESPONDENT WAS NOT ENTITLED TO THE DEDUCTION OF
$125,000 IN 1932, UPON THE GROUND THAT "HE MADE NO OUTLAY OF CASH" IN
THE PURPORTED PAYMENT; HE HAD SATISFIED HIS LIABILITY AS GUARANTOR "BY
A SHIFTING OF THE FORM OF HIS LIABILITY."  HIS LOSS WOULD BE DEDUCTIBLE
"IN THE YEAR IN WHICH HE PAYS THE NOTE." 

RESPONDENT INSISTS INITIALLY THAT THE TRANSACTION IN 1932 WAS
CONSIDERED BY THE PARTIES AS CONSTITUTING A PAYMENT OF RESPONDENT'S
LIABILITY UNDER THE GUARANTY, AND THAT THIS PAYMENT IS A FACT FOUND BY
THE BOARD OF TAX APPEALS AND IS NOT OPEN TO REVIEW.  BUT THE FINDINGS
OF THE BOARD DISCLOSE THE ENTIRE TRANSACTION, AND ITS LEGAL EFFECT IN
THE APPLICATION OF SEC. 23(E) OF THE REVENUE ACT OF 1932, AS TO THE
DEDUCTION OF LOSSES SUSTAINED DURING THE TAXABLE YEAR, WAS REVIEWABLE
BY THE CIRCUIT COURT OF APPEALS.  ITS DECISION ON THAT POINT IS
REVIEWABLE HERE. 

BOTH THE COMMISSIONER AND THE BOARD OF TAX APPEALS RELIED UPON OUR
DECISION IN ECKERT V. BURNET, SUPRA.  IN THAT CASE, THE TAXPAYER'S
RETURN WAS ON THE CASH BASIS, AND THE QUESTION WAS AS TO A CLAIM OF
DEDUCTION FOR THE YEAR 1925.  THE TAXPAYER AND HIS PARTNER WERE JOINT
ENDORSERS OF NOTES ISSUED BY A CORPORATION THEY HAD FORMED.  IN 1925,
IN SETTLEMENT OF THEIR LIABILITY FOR AN ASCERTAINED AMOUNT, THEY MADE A
JOINT NOTE FOR THE AMOUNT DUE TO THE BANK THAT HELD THE CORPORATION'S
PAPER, "RECEIVED THE OLD NOTES, MARKED PAID, AND DESTROYED THEM."  WE
AFFIRMED THE RULING THAT THE DEDUCTION SHOULD NOT BE ALLOWED. 

THE COURT BELOW CONSIDERED THAT DECISION AS DEFINITE AUTHORITY ONLY
FOR THE HOLDING THAT A LOSS OF THE SORT SET FORTH WAS NOT DEDUCTIBLE
UNDER THE "BAD DEBT" PROVISION OF THE STATUTE.  THAT INDEED WAS STATED
IN THE OPINION AS THE TAXPAYER'S CLAIM.  BUT THE TAXPAYER HAD ALSO
PRESENTED HERE AS AN ALTERNATIVE GROUND THE THEORY OF A LOSS SUSTAINED
DURING THE TAXABLE YEAR, A GROUND WHICH THE BOARD OF TAX APPEALS HAD
CONSIDERED AND HELD TO BE UNTENABLE.  17 B.T.A. 263, 265, 266.  AND THE
GOVERNMENT ARGUED BOTH QUESTIONS.  THE GOVERNMENT DID NOT CONTEND THAT
THE TAXPAYER MIGHT NOT AT SOME TIME BE ENTITLED TO A DEDUCTION "EITHER
ON ACCOUNT OF A BAD DEBT OR FOR A BUSINESS LOSS"; THE "SOLE QUESTION IN
DISPUTE WAS WHETHER HE WAS ENTITLED TO THE DEDUCTION IN 1925, THE YEAR
IN WHICH HIS NOTE WAS GIVEN, OR IN THE LATER YEAR IN WHICH THE
TAXPAYER'S LIABILITY ON THE NOTE IS ACTUALLY LIQUIDATED BY PAYMENT." 

THE REASONING OF THIS COURT WAS BROAD ENOUGH TO COVER BOTH ASPECTS OF
THE CASE.  WE SAID: 

"FOR THE PURPOSE OF A RETURN UPON A CASH BASIS, THERE WAS NO LOSS IN
1925.  AS HAPPILY STATED BY THE BOARD OF TAX APPEALS, THE PETITIONER
'MERELY EXCHANGED HIS NOTE UNDER WHICH HE WAS PRIMARILY LIABLE FOR THE
CORPORATION'S NOTES UNDER WHICH HE WAS SECONDARILY LIABLE, WITHOUT ANY
OUTLAY OF CASH OR PROPERTY HAVING A CASH VALUE.'  A DEDUCTION MAY BE
PERMISSIBLE IN THE TAXABLE YEAR IN WHICH THE PETITIONER PAYS CASH.  THE
PETITIONER SAYS THAT IT WAS DEFINITELY ASCERTAINED IN 1925 THAT THE
PETITIONER WOULD SUSTAIN THE LOSSES IN QUESTION.  SO IT WAS, IF THE
PETITIONER ULTIMATELY PAYS HIS NOTE." 

WE THINK THAT THIS DECISION IS CONTROLLING IN THE INSTANT CASE.  AS
THE RETURN WAS ON THE CASH BASIS, THERE COULD BE NO DEDUCTION IN THE
YEAR 1932, UNLESS THE SUBSTITUTION OF RESPONDENT'S NOTE IN THAT YEAR
CONSTITUTED A PAYMENT IN CASH OR ITS EQUIVALENT.  THERE WAS NO CASH
PAYMENT AND UNDER THE DOCTRINE OF THE ECKERT CASE THE GIVING OF THE
TAXPAYER'S OWN NOTE WAS NOT THE EQUIVALENT OF CASH TO ENTITLE THE
TAXPAYER TO THE DEDUCTION. 

RESPONDENT URGES THAT HIS NOTE WAS SECURED, BUT THE COLLATERAL WAS
NOT PAYMENT.  IT WAS GIVEN TO SECURE RESPONDENT'S PROMISE TO PAY, AND
IF THAT PROMISE TO PAY WAS NOT SUFFICIENT TO WARRANT THE DEDUCTION
UNTIL THE PROMISE WAS MADE GOOD BY ACTUAL PAYMENT, THE GIVING OF
SECURITY FOR PERFORMANCE DID NOT TRANSFORM THE PROMISE INTO THE PAYMENT
REQUIRED TO CONSTITUTE A DEDUCTIBLE LOSS IN THE TAXABLE YEAR.  SEE
JENKINS V. BITGOOD, 101 F.2D 17, 19. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
DECISION OF THE BOARD OF TAX APPEALS IS AFFIRMED.  REVERSED. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :









MCGOLDRICK V. GULF OIL CORP., 309 U.S. 414 


NO. 473.  REARGUED FEBRUARY 27, 1940.  - DECIDED MARCH 25, 1940.  - 281
N.Y. 647 - 22 N.E.2D 480, AFFIRMED. 


1.  THE TAX IMPOSED BY SEC. 601 OF THE REVENUE ACT OF 1932 ON
IMPORTATION OF CRUDE PETROLEUM IS BY FORCE OF THE PROVISIONS OF THAT
WHICH IN TURN INCORPORATED, BY REFERENCE, CUSTOMS REGULATIONS RELATING
TO THE ENTRY OF MERCHANDISE IN BONDED MANUFACTURING WAREHOUSES FOR
EXPORTATION OR DISPOSITION AS SHIPS' STORES; SECTION 630 OF THE REVENUE
ACT (AMENDMENT OF 1933) EXEMPTS FROM TAX ANY ARTICLE SOLD FOR USE AS
FUEL, SHIPS' STORES, ETC., ON VESSELS ACTUALLY ENGAGED IN FOREIGN
TRADE, AND, READ IN CONJUNCTION WITH THE TARIFF ACT, PROVIDES THAT
ARTICLES MANUFACTURED FROM IMPORTED ARTICLES AND LADEN FOR USE ON
VESSELS ENGAGED IN FOREIGN COMMERCE UNDER CUSTOMS REGULATIONS ARE TO BE
DUTY FREE AND CONSIDERED OR HELD TO BE EXPORTED FOR THE PURPOSE OF
DRAWBACK PROVISIONS OF SEC. 601 OF THE REVENUE ACT AND SEC. 309(B) OF
THE TARIFF ACT.  P. 423. 

2.  UNDER THESE PROVISIONS, OIL IMPORTED IN BOND IN THE CRUDE FORM
INTO A STATE, CONVERTED INTO FUEL OIL IN A BONDED WAREHOUSE, AND
WITHDRAWN DUTY FREE FOR SALE FOR FUEL TO A VESSEL ENGAGED IN FOREIGN
TRADE, IS FROM THE TIME OF IMPORTATION UNTIL THE MOMENT OF LADING ON
THE VESSEL, SEGREGATED FROM THE COMMON MASS OF PROPERTY WITHIN THE
STATE AND SUBJECT TO THE SUPERVISION AND CONTROL OF FEDERAL CUSTOMS
OFFICIALS.  P. 425. 

3.  A CUSTOMS REGULATION PROVIDING THAT "IMPORTED GOODS IN A BONDED
WAREHOUSE ARE EXEMPT FROM TAXATION UNDER THE GENERAL LAWS OF THE
SEVERAL STATES" WAS INCORPORATED IN THE TARIFF ACT OF 1930 BY
REFERENCE, AND WHEN APPLIED TO THE FACTS OF THE PRESENT CASE, STATES
ONLY WHAT IS IMPLICIT IN THE CONGRESSIONAL REGULATION OF COMMERCE
PRESENTLY INVOLVED.  PP. 426, 429. 

4.  THE PROVISIONS OF THE REVENUE ACT OF 1932, READ WITH THOSE OF THE
TARIFF ACT OF 1930 AND WITH OTHER STATUTES AND REGULATIONS, AFFORD A
COMPREHENSIVE SCHEME FOR THE REGULATION OF THE IMPORTATION OF CRUDE
PETROLEUM AND OF ITS CONTROL WHILE IN THE COURSE OF MANUFACTURE IN BOND
INTO FUEL OIL AND ITS DELIVERY AS SHIPS' STORES TO VESSELS IN FOREIGN
COMMERCE, ALL CALCULATED TO INSURE THE DEVOTION OF THE MANUFACTURED OIL
EXCLUSIVELY TO THAT PURPOSE.  P. 426. 

5.  THE STATUTES AND REGULATIONS TAKEN TOGETHER OPERATE AS
REGULATIONS OF FOREIGN COMMERCE.  P. 427. 

6.  THE PURPOSE OF THE EXEMPTION FROM THE TAX LAID UPON IMPORTATION
OF CRUDE PETROLEUM WHEN IT OR ITS PRODUCT IS USED AS SHIPS' STORES BY
VESSELS ENGAGED IN FOREIGN COMMERCE IS, FIRST, TO ENCOURAGE IMPORTATION
OF CRUDE OIL FOR SUCH USE AND THUS TO ENABLE AMERICAN REFINERS TO MEET
FOREIGN COMPETITION AND TO RECOVER TRADE WHICH HAD BEEN LOST BY THE
IMPOSITION OF THE TAX, AND, SECONDLY, TO PROMOTE FOREIGN COMMERCE
THROUGH THE SALE OF TAX-FREE FUEL TO VESSELS ENGAGED IN IT. P. 427. 

7.  THE ADOPTION OF THESE MEANS OF REGULATING AND PROMOTING FOREIGN
COMMERCE WAS WITHIN THE CONGRESSIONAL POWER.  P. 427. 

8.  THE LAYING OF A DUTY ON IMPORTS, ALTHOUGH AN EXERCISE OF THE
TAXING POWER, IS ALSO AN EXERCISE OF THE POWER TO REGULATE FOREIGN
COMMERCE.  THE EXEMPTION OF IMPORTS FROM THE DUTY OR THE ALLOWANCE OF A
DRAWBACK WHEN THEY ARE DEVOTED TO PARTICULAR PURPOSES OR USES, OR WHEN
THEY ARE EXPORTED OR OTHERWISE SENT OUT OF THE COUNTRY, IS LIKEWISE A
REGULATION OF FOREIGN COMMERCE.  P. 428. 

9.  NEW YORK CITY SALES TAX IMPOSED ON SALES TO VESSELS ENGAGED IN
FOREIGN COMMERCE OF FUEL OIL MANUFACTURED FROM IMPORTED CRUDE PETROLEUM
IN BOND, HELD INVALID AS AN INFRINGEMENT OF THE CONGRESSIONAL
REGULATION OF THE COMMERCE.  PP. 423-428. 

MCGOLDRICK, COMPTROLLER OF THE CITY OF NEW YORK, V. GULF OIL CORP. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 308 U.S. 545, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
REVERSING A RULING OF THE COMPTROLLER OF THE CITY OF NEW YORK WHICH
APPLIED THE CITY SALES TAX TO FUEL OIL SOLD IN BOND TO VESSELS ENGAGED
IN FOREIGN COMMERCE.  THE WRIT OF CERTIORARI WAS DISMISSED, ANTE, P. 2,
BECAUSE IT DID NOT APPEAR THAT THE JUDGMENT BELOW DID NOT REST UPON AN
ADEQUATE NON-FEDERAL GROUND.  A PETITION FOR REHEARING BASED ON AN
AMENDED REMITTITUR OF THE NEW YORK COURT OF APPEALS, 282 N.Y. 612; 25
N.E.2D 392, WAS GRANTED, THE JUDGMENT OF DISMISSAL VACATED, AND THE
CAUSE RESTORED TO THE DOCKET FOR REARGUMENT, POST, P. 692.  SEE 256
APP. DIV. 207, 9 N.Y.S.2D 544. 

THE CONSTITUTIONAL PROVISION AGAINST STATE TAXATION OF IMPORTS IS NOT
CONTRAVENED BY A SALES TAX (1) IMPOSED AFTER THE IMPORTED GOODS HAVE,
THROUGH PROCESSING, UNDERGONE A RADICAL CHANGE, AND (2) IMPOSED NOT ON
THE IMPORTER BUT ON THE PURCHASER AFTER THE GOODS HAVE LEFT THE BONDED
WAREHOUSE.  GULF FISHERIES CO. V. MACINERNEY, 276 U.S. 124; H. P. HOOD
& SONS V. COMMONWEALTH, 235 MASS. 572, 576-577; STANDARD OIL CO. V.
COMBS, 96 IND. 179; ATLANTIC COAST LINE V. STANDARD OIL CO., 275 U.S.
257, 267; WARING V. MAYOR OF MOBILE, 8 WALL.  110; LOW V. AUSTIN, 13
WALL.  29; MAY V. NEW ORLEANS, 178 U.S. 496; DIST'G SOUTHERN PACIFIC
TERMINAL CO. V. INTERSTATE COMMERCE COMM'N, 219 U.S. 498, 526. 

DOES REMOVING PETROLEUM FROM AN OCEAN-GOING TANKER AND STORING IT ON
SHORE BREAK THE ORIGINAL PACKAGE?  SEE:  MEXICAN PETROLEUM CORP. V.
SOUTH PORTLAND, 121 ME. 128, 134-135; MEXICAN PETROLEUM CORP. V.
LOUISIANA TAX COMM'N, 173 LA. 604, 616; PHILIPPINE REFINING CORP. V.
CONTRA COSTA, 24 CAL. APP.2D 665, 669; GALVESTON V. MEXICAN PETROLEUM
CORP., 15 F.2D 208. 

WHEN THE IMPORTED PRODUCT HAS BEEN PROCESSED AND BROKEN DOWN INTO
DIVERS PRODUCTS AND SOLD, IT IS NO LONGER AN IMPORT.  NEW YORK EX REL.
BURKE V. WELLS, 208 U.S. 14, 24. 

THE CIRCUMSTANCES UNDER WHICH SEC. 630 WAS ADDED TO THE REVENUE ACT
OF 1932 SUPPORT THE CONCLUSION, INFERABLE FROM THE TEXT ITSELF, THAT
CONGRESS DID NOT INTEND TO INTERFERE WITH STATE POWERS OF TAXATION. 

CONFERS AN EXEMPTION, AND REFLECTS THE CONCLUSION OF CONGRESS THAT THE
ORIGINAL 1932 ACT DID MORE HARM THAN GOOD.  IN RESCINDING ITS FORMER
ACTION, CONGRESS HAS SIMPLY REFRAINED FROM TAXING THIS PARTICULAR
COMMODITY.  HOW CAN IMPOSING AND THEN LIFTING A TAX BE REGULATION, WHEN
NONACTION AB INITIO WOULD NOT BE SUCH? 

LEGISLATIVE HISTORY OF A STATUTE CAN NOT AFFECT ITS INTERPRETATION
WHEN THE MEANING IS CLEAR.  KUEHNER V. IRVING TRUST CO., 299 U.S. 445,
449.  EXTRANEOUS AIDS ARE ONLY ADMISSIBLE TO SOLVE DOUBT.  WISCONSIN
RAILROAD COMM'N V. CHICAGO, B. & Q.R. CO., 257 U.S. 563, 589. 
MOREOVER, THE CONGRESSIONAL DOCUMENTS RELIED ON BY RESPONDENT GIVE NO
HINT OF INTENT TO AFFECT STATE TAXATION. 

AN INTENTION TO SUPERSEDE STATE TAX LAWS IS NOT TO BE LEFT TO
INFERENCE AND CONJECTURE.  SAVAGE V. JONES, 225 U.S. 501, 533; WELCH
CO. V. NEW HAMPSHIRE, 306 U.S. 79, 85; GRAVES V. NEW YORK EX REL.
O'KEEFE, 306 U.S. 466, 479-480; PALMER V. MASSACHUSETTS, 308 U.S. 79,
83-84.  SEE ALSO FEDERAL HOUSING ADMINISTRATION V. BURR, 309 U.S. 242. 

THE FACT THAT CONGRESS HAS EXTENDED THE FEDERAL REGULATORY POWER TO A
GIVEN INDUSTRY WILL NOT SUPPORT AN INFERENCE OF INTENTION TO REMOVE IT
FROM THE STATE TAXING POWER.  FEDERAL COMPRESS & WAREHOUSE CO. V.
MCLEAN, 291 U.S. 17, 22-23; MINNESOTA V. BLASIUS, 290 U.S. 1; NATIONAL
LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 35. 

THE PROPOSITION THAT CONGRESS CAN DECLARE A LOCAL TRANSACTION TO BE A
PART OF FOREIGN COMMERCE, AND COMPEL THE STATE TO KEEP HANDS OFF, IS
UNSANCTIONED BY THE CONSTITUTION AND THE DECISIONS OF THIS COURT.  SEE
PIPE LINE CASES, 234 U.S. 548, 560-561. 

"EXPORTS" IS A CONSTITUTIONAL TERM AND IS TO BE GIVEN ITS ORDINARY
MEANING.  CONGRESS CAN NOT ENLARGE THE CONCEPT AND THEREBY CURTAIL THE
TAXING POWERS OF THE STATES.  CF., THOMPSON V. UNITED STATES, 142 U.S.
471, 477; RIBBLE, STATE AND NATIONAL CONTROL OVER COMMERCE, P. 232. 

THE IMMUNITY FROM STATE TAXATION ENJOYED BY BONDED GOODS IS NO
GREATER THAN THAT WHICH SUCH GOODS ENJOY BY VIRTUE OF THE IMPORT-EXPORT
CLAUSE OF THE CONSTITUTION. 

STATES FURNISH POLICE AND FIRE PROTECTION TO GOODS IN BONDED
WAREHOUSES, AND THE OWNERS OF SUCH GOODS REMAIN UNDER A CORRELATIVE
DUTY TO PAY STATE TAXES,  - EXCEPTING GOODS IN THE ORIGINAL PACKAGES. 
SEE THOMPSON V. KENTUCKY, 209 U.S. 340, 347. 

THE OWNER COULD HAVE PAID THE TAX, AND ON PROOF THAT THE OIL HAD BEEN
SOLD AS SEA STORES COULD HAVE APPLIED FOR A DRAWBACK.  THAT WOULD NOT
HAVE INTERFERED WITH THE STATE'S POWER.  IT IS UNREASONABLE TO REGARD
THAT POWER AS PRESENT OR ABSENT ACCORDING TO THE METHOD OF GAINING
FEDERAL TAX EXEMPTION SELECTED BY THE OWNER. 

THE LANGUAGE OF ART. 942(D) AS TO STATE TAXATION IS AN ELLIPTIC AND
INFELICITOUS ABSTRACT OF THE ORIGINAL PACKAGE DOCTRINE.  NOTE THE
MARGINAL CITATIONS ACCOMPANYING IT.  LOW V. AUSTIN, 13 WALL.  29;
BLOUNT V. MUNROE, 60 GA. 61; CLARKE V. CLARKE, 3 WOODS 408; STATE V.
PINCKNEY, 44 SO. CAR.  LAW 474. 

THE OIL CAME TO SUCH A STOP AS SUBJECTED IT TO STATE TAXATION.  COE
V. ERROL, 116 U.S. 517, 527, 528; GENERAL OIL CO. V. CRAIN, 209 U.S.
211, 230-231; BACON V. ILLINOIS, 227 U.S. 504, 515-516; SUSQUEHANNA
COAL CO. V. SOUTH AMBOY, 208 U.S. 665, 669; MINNESOTA V. BLASIUS, 290
U.S. 1, 9.  CF., MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S.
33. 

THE TAX IS NOT A FORBIDDEN BURDEN ON FOREIGN COMMERCE, SINCE (1) THE
FUEL OIL DOES NOT BECOME AN INSTRUMENT OF COMMERCE UNTIL AFTER THE
INCIDENCE OF THE TAX, AND (2) THE TAX IS NON-DISCRIMINATORY.  MOREOVER,
SINCE THE FUEL OIL CAME INTO EXISTENCE IN NEW YORK CITY AND PASSED INTO
THE ULTIMATE CONSUMER'S HANDS IN NEW YORK CITY, THE POSSIBILITY OF
MULTIPLE TAXATION IS ABSENT. 

THE STATUS OF THE OIL IS SIMILAR TO THAT OF GASOLINE SOLD TO
INTERSTATE AIRPLANES.  EASTERN AIR TRANSPORT, INC. V. TAX COMMISSION,
285 U.S. 147; EDELMAN V. BOEING AIR TRANSPORT, INC., 289 U.S. 249.  SEE
NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S. 249, 267. 

THAT THE OIL WAS TO BE USED EVENTUALLY TO PROPEL VESSELS IN FOREIGN
COMMERCE IS IMMATERIAL, FOR AT THE MOMENT OF TAXATION THAT COMMERCE HAD
NOT YET BEGUN.  MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., 309 U.S.
33.  CF., SOUTHERN PACIFIC CO. V. GALLAGHER, 306 U.S. 167.  DIST'G
HELSON V. KENTUCKY, 279 U.S. 245. 

GOODS TAKEN ON BOARD AS SHIPS' STORES ARE NOT DEEMED "EXPORTED." 
SWAN & FINCH CO. V. UNITED STATES, 190 U.S. 143.  SEE ALSO UNITED
STATES V. CHAVEZ, 228 U.S. 525; DOOLEY V. UNITED STATES, 183 U.S. 151;
UNITED STATES V. HILL, 34 F.2D 133; KENNEDY V. UNITED STATES, 95 F.
127; WEST INDIA OIL CO. V. SANCHO, 108 F.2D 144. 

IF SEA STORES WERE EXPORTS, THE ADDITION OF SEC. 630 TO THE REVENUE
ACT WOULD HAVE BEEN UNNECESSARY, EXEMPTION HAVING BEEN CONFERRED BY
SEC. 313 OF THE TARIFF ACT OF 1930. 

THE TAX IS NOT SELECTIVE, BUT EQUAL.  IT DOES NOT AIM AT OR
DISCRIMINATE AGAINST ANY PHASES OF THE EXPORT TRADE.  IN PECK & CO. V.
LOWE, 247 U.S. 165, 173, THE COURT UPHELD A TAX ON AN EXPORTER'S NET
INCOME. 

THE TAX IS BASED ON THE SALE OF SOMETHING WHICH NEVER WAS EITHER AN
EXPORT, OR A SYMBOL FOR AN EXPORT, OR PART OF THE PROCESSES OF
EXPORTATION.  CF., TURPIN V. BURGESS, 117 U.S. 504, 507. 

THE EXEMPTION ATTACHES TO THE EXPORT AND NOT TO THE ARTICLE BEFORE
ITS EXPORTATION. 

THE TAX AFFECTS FOREIGN COMMERCE ONLY INCIDENTALLY AND REMOTELY. 

THE VICE OF THE ARGUMENT FOR STATUTORY RATIFICATION OF ART. 942(D) OF
THE REGULATIONS IS THAT THE ALLUSIONS IN THE STATUTES TO THE
REGULATIONS ARE SPECIFIC RATHER THAN GENERAL, AND EVIDENCE NO INTENT TO
RATIFY A REGULATION LIKE ART. 942(D). 

CONGRESS ITSELF MUST HAVE REGARDED FUEL OIL SOLD FOR SHIPS' STORES AS
NOT AN EXPORT, FOR IT HAS IMPOSED TAXES THEREON, THOUGH HAVING NO MORE
POWER THAN THE STATES TO TAX EXPORTS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE COMPTROLLER OF THE CITY OF NEW YORK DETERMINED THAT RESPONDENT
WAS SUBJECT TO A NEW YORK CITY TAX LAID UPON SALES IN 1934 AND 1935 OF
FUEL OIL MANUFACTURED IN NEW YORK CITY, FROM CRUDE PETROLEUM, WHICH HAD
BEEN IMPORTED FROM A FOREIGN COUNTRY TO NEW YORK, AND THERE SOLD AND
DELIVERED AS SHIPS' STORES TO VESSELS ENGAGED IN FOREIGN COMMERCE. 
UPON CERTIORARI TO REVIEW THE COMPTROLLER'S DETERMINATION, THE
APPELLATE DIVISION OF THE NEW YORK SUPREME COURT HELD THAT THE TAXING
STATUTE AS APPLIED INFRINGED THE POWER OF CONGRESS TO REGULATE FOREIGN
COMMERCE WHICH IT HAD EXERCISED BY STATUTES REGULATING THE CONTROL AND
DISPOSITION OF THE IMPORTED OIL.  256 APP. DIV. 207; 9 N.Y.S.2D 544. 

THE NEW YORK COURT OF APPEALS AFFIRMED WITHOUT OPINION, 281 N.Y. 647;
22 N.E.2D 480, BUT BY ITS AMENDED REMITTITUR DECLARED THAT THE
AFFIRMANCE WAS UPON THE GROUND, AND NONE OTHER, THAT THE TAX AS APPLIED
VIOLATED THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION, ARTICLE I,
SEC. 8, CLAUSE 3, ARTICLE I, SEC. 10, CLAUSE 2, WHICH COMMANDS THAT NO
STATE SHALL LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, AND
ARTICLE VI, CLAUSE 2, MAKING THE "CONSTITUTION AND LAWS OF THE UNITED
STATES WHICH SHALL BE MADE IN PURSUANCE THEREOF  ...  THE SUPREME LAW
OF THE LAND."  FN1  WE GRANTED CERTIORARI UPON A PETITION WHICH
CHALLENGED THE SEVERAL GROUNDS OF DECISION AS DEFINED BY THE AMENDED
REMITTITUR OF THE COURT OF APPEALS, THE QUESTIONS PRESENTED BEING OF
PUBLIC IMPORTANCE. 

THE TAXING ENACTMENT, LOCAL LAW NO. 24 OF 1934(PUBLISHED AS LOCAL LAW
NO. 25) IS THAT OF THE MUNICIPAL ASSEMBLY OF THE CITY OF NEW YORK,
ADOPTED PURSUANT TO AUTHORITY OF CHAPTER 815 OF THE NEW YORK LAWS OF
1933, AS AMENDED BY CHAPTER 873 OF NEW YORK LAWS OF 1934.  ITS DETAILS
WERE RECENTLY DISCUSSED IN OUR OPINION IN MCGOLDRICK V. BERWIND-WHITE
COAL MINING CO., ANTE, P. 33, AND IT IS UNNECESSARY TO REPEAT THEM
HERE.  IT SUFFICES TO SAY THAT IT LAYS A TAX ON PURCHASERS FOR
CONSUMPTION OF TANGIBLE PERSONAL PROPERTY AT THE RATE OF 2 PER CENT. OF
THE SALES PRICE.  THE TAX IS CONDITIONED UPON EVENTS OCCURRING WITHIN
THE STATE, EITHER TRANSFER OF TITLE OR POSSESSION OF THE PURCHASED
PROPERTY, OR AN AGREEMENT WITHIN THE STATE, "CONSUMMATED THERE" FOR THE
TRANSFER OF TITLE OR POSSESSION.  THE DUTY OF COLLECTING THE TAX AND
PAYING IT OVER TO THE COMPTROLLER IS IMPOSED ON THE SELLER, WHO MUST
PAY IT WHETHER HE COLLECTS IT OR NOT, IN ADDITION TO THE DUTY IMPOSED
UPON THE BUYER TO PAY THE TAX TO THE COMPTROLLER WHEN NOT SO
COLLECTED. 

THE MATERIAL FACTS ARE NOT IN DISPUTE.  IN 1934 AND 1935 RESPONDENT'S
PREDECESSOR IMPORTED CRUDE PETROLEUM FROM VENEZUELA AND MADE CUSTOMS
ENTRY OF IT FOR ITS OWN MANUFACTURING WAREHOUSE IN NEW YORK CITY,
PURSUANT TO ITS BONDS KNOWN AS "PROPRIETOR'S MANUFACTURING WAREHOUSE
BOND, CLASS 6," GIVEN TO THE UNITED STATES UNDER THE WAREHOUSE LAWS OF
THE UNITED STATES AND TREASURY REGULATIONS.  THE BONDS WERE GIVEN FOR
THE PURPOSE OF ENABLING THE IMPORTER, UNDER STATUTES OF THE UNITED
STATES AND TREASURY REGULATIONS, TO BRING THE PETROLEUM INTO THE UNITED
STATES, TO MANUFACTURE IT WHILE IN BOND INTO FUEL OIL AND THEN TO
WITHDRAW IT FOR EXPORT OR OTHER LAWFUL PURPOSE FREE OF THE IMPORT DUTY
WHICH WOULD OTHERWISE BE PAYABLE.  THE BONDS WERE CONDITIONED, AMONG
OTHER THINGS, UPON COMPLIANCE WITH LAWS AND REGULATIONS RELATING TO THE
CUSTODY AND SAFEKEEPING OF THE IMPORTED MERCHANDISE AND ITS PRODUCTS
HELD IN BOND, AND TO ITS LAWFUL WITHDRAWAL FROM THE WAREHOUSE UNDER
PERMIT OF THE COLLECTOR OF THE CUSTOMS WITHIN THE TIME PERMITTED BY
LAW. 

THE TAX IN QUESTION WAS LAID ON THE SALE OF BUNKER "C" FUEL OIL,
MANUFACTURED IN RESPONDENT'S BONDED WAREHOUSE FROM THE IMPORTED OIL AND
DELIVERED ALONGSIDE FOREIGN BOUND VESSELS IN NEW YORK CITY WHICH
PURCHASED THE OIL AS SHIPS' STORES FOR CONSUMPTION AS FUEL IN
PROPELLING THEM IN FOREIGN COMMERCE. 

PETITIONER ARGUES THAT THE TAX IMPOSED ON THE PURCHASER FOR
CONSUMPTION OF THE FUEL OIL AFTER IT HAD BEEN CHANGED RADICALLY BY
MANUFACTURE FROM THE IMPORTED OIL, AND AFTER IT HAD BEEN WITHDRAWN FROM
THE BONDED WAREHOUSE, IS NOT A PROHIBITED TAX ON IMPORTS AND DOES NOT
CONTRAVENE ANY POLICY WHICH THE LAWS OF THE UNITED STATES HAVE
SANCTIONED. 

FOR PRESENT PURPOSES WE MAY ASSUME, WITHOUT DECIDING, THAT HAD THE
CRUDE OIL NOT BEEN IMPORTED IN BOND IT WOULD, UPON ITS MANUFACTURE,
HAVE BECOME A PART OF THE COMMON MASS OF PROPERTY IN THE STATE AND SO
WOULD HAVE LOST ITS DISTINCTIVE CHARACTER AS AN IMPORT AND ITS
CONSTITUTIONAL IMMUNITY AS SUCH FROM STATE TAXATION.  SEE GULF
FISHERIES CO. V. MACINERNEY, 276 U.S. 124, 126; WARING V. THE MAYOR, 8
WALL.  110; MAY V. NEW ORLEANS, 178 U.S. 496; NEW YORK EX REL. BURKE V.
WELLS, 208 U.S. 14.  RESPONDENT RESTS ITS ARGUMENT ON DIFFERENT
CONSIDERATIONS GROWING OUT OF THE CONTROL OVER THE FOREIGN COMMERCE
INVOLVED IN THE IMPORTATION OF THE OIL AND ITS ULTIMATE DISPOSITION AS
SHIPS' STORES OF VESSELS ENGAGED IN FOREIGN COMMERCE, WHICH CONGRESS
HAS EXERCISED IN PURSUANCE OF A NATIONAL POLICY WITH WHICH, IT IS
INSISTED, THE TAX CONFLICTS.  EXPRESSION OF THIS POLICY, IT IS URGED,
IS TO BE FOUND IN THE STATUTES OF THE UNITED STATES, READ IN LIGHT OF
THEIR LEGISLATIVE HISTORY, EXEMPTING THE IMPORTED OIL FROM FEDERAL
TAXATION, OTHERWISE IMPOSED, IF IT IS SOLD FOR USE AS FUEL ON VESSELS
ENGAGED IN THE FOREIGN TRADE, AND IN THE MEASURES TAKEN IN STATUTES AND
REGULATIONS TO MAKE THAT POLICY EFFECTIVE BY SEGREGATING THE OIL UNDER
THE DIRECTION OF CUSTOMS OFFICERS OF THE UNITED STATES FROM THE TIME OF
ITS IMPORTATION UNTIL IT IS DELIVERED TO THE PURCHASING VESSEL.    THE
PROVISIONS OF THE REVENUE ACT OF 1932 LAYING A TAX ON THE IMPORTATION
OF CRUDE PETROLEUM AND GRANTING EXEMPTIONS, AND THE RELATED PROVISIONS
OF THE TARIFF ACT OF 1930 AND THE APPLICABLE TREASURY REGULATIONS
SUPPORT THIS CONTENTION. 

LAYS A TAX "WITH RESPECT TO THE IMPORTATION" OF CRUDE PETROLEUM OF ONE
HALF CENT PER GALLON UNLESS OTHERWISE PROVIDED BY TREATIES OF THE
UNITED STATES, AND SEC. 601(B) DECLARES THAT THE TAX IMPOSED "SHALL BE
LEVIED, ASSESSED, COLLECTED, AND PAID IN THE SAME MANNER AS A DUTY
IMPOSED BY THE TARIFF ACT OF 1930 AND SHALL BE TREATED FOR THE PURPOSES
OF ALL PROVISIONS OF LAW RELATING TO THE CUSTOMS REVENUE AS A DUTY
IMPOSED BY SUCH ACT.  ...  " SECTION 630 OF THE REVENUE ACT OF 1932,
ADDED BY AMENDMENT OF JUNE 16, 1933, 48 STAT. 256, DECLARES THAT NO TAX
UNDER SEC. 601 SHALL BE LAID "UPON ANY ARTICLE SOLD FOR USE AS FUEL
SUPPLIES, SHIPS' STORES  ...  OR  ...  EQUIPMENT ON VESSELS  ...
ACTUALLY ENGAGED IN FOREIGN TRADE  ...  " AND PROVIDES THAT "ARTICLES
MANUFACTURED OR PRODUCED WITH THE USE OF ARTICLES UPON THE IMPORTATION
OF WHICH TAX HAS BEEN PAID UNDER THIS TITLE, IF LADEN FOR USE AS
SUPPLIES ON SUCH VESSELS SHALL BE HELD TO BE EXPORTED FOR THE PURPOSES"
OF THE DRAWBACK PROVISION OF SEC. 601(B). 

AUTHORIZES THE WITHDRAWAL, DUTY FREE, UNDER REGULATIONS OF THE
SECRETARY OF THE TREASURY OF ARTICLES FROM BONDED MANUFACTURING
WAREHOUSES, FOR SUPPLIES TO VESSELS OF THE UNITED STATES ENGAGED IN
FOREIGN TRADE AND DIRECTS THAT NO SUCH ARTICLE SHALL BE LANDED AT ANY
PORT OR PLACE IN THE UNITED STATES OR ITS POSSESSIONS.  BY VIRTUE OF
THE TERMS ALREADY NOTED OF SECS. 601 AND 630 OF THE REVENUE ACT OF
1932, THESE PROVISIONS WERE EXTENDED TO ARTICLES SOLD FOR FUEL TO
VESSELS ENGAGED IN FOREIGN TRADE, AND THE PROVISIONS OF STATUTES AND
REGULATIONS RELATING TO WITHDRAWAL FROM MANUFACTURING BONDED WAREHOUSES
FN2  FOR EXPORT WERE THUS EXTENDED TO SIMILAR WITHDRAWALS OF FUEL OIL
FOR DISPOSITION AS SHIPS' STORES.  FN3 

IT WILL BE NOTED THAT THE TAX IMPOSED ON IMPORTATION OF CRUDE
PETROLEUM BY SEC. 601 OF THE REVENUE ACT OF 1932 IS, BY FORCE OF ITS
OWN PROVISIONS TO BE TREATED AS A DUTY IMPOSED BY THE TARIFF ACT OF
1930, WHICH, IN TURN, HAS INCORPORATED, BY REFERENCE, CUSTOMS
REGULATIONS RELATING TO THE ENTRY OF MERCHANDISE IN BONDED
MANUFACTURING WAREHOUSES, ITS MANUFACTURE THERE AND ITS WITHDRAWAL FROM
BONDED WAREHOUSES FOR EXPORTATION OR DISPOSITION AS SHIPS' STORES; FN4
THAT SEC. 630, READ IN CONJUNCTION WITH SEC. 601(B) AND THE RELATED
PROVISIONS OF THE TARIFF ACT OF 1930(SEC.  309(B)) PROVIDES THAT
ARTICLES MANUFACTURED FROM IMPORTED ARTICLES AND LADEN FOR USE ON
VESSELS ENGAGED IN FOREIGN COMMERCE UNDER CUSTOMS REGULATIONS ARE TO BE
DUTY FREE AND CONSIDERED OR HELD AS EXPORTED FOR THE PURPOSE OF THE
DRAWBACK PROVISIONS OF BOTH SEC. 601 OF THE REVENUE ACT OF 1932 AND
SEC. 309(B) OF THE TARIFF ACT OF 1930. 

FROM THE TIME OF IMPORTATION UNTIL THE MOMENT WHEN THE BUNKER "C" OIL
IS LADEN ON VESSELS ENGAGED IN FOREIGN TRADE, THE IMPORTED PETROLEUM
AND ITS PRODUCT, THE FUEL OIL, IS SEGREGATED FROM THE COMMON MASS OF
GOODS AND PROPERTY WITHIN THE STATE, AND IS SUBJECT TO THE SUPERVISION
AND CONTROL OF FEDERAL CUSTOMS OFFICERS.  FN5  IT CANNOT LAWFULLY BE
REMOVED FROM THE MANUFACTURING WAREHOUSE EXCEPT FOR DELIVERY FOR USE AS
FUEL TO A VESSEL ENGAGED IN FOREIGN COMMERCE AND IT CANNOT LAWFULLY BE
DIVERTED FROM SUCH DESTINATION AND USE AND CANNOT, AFTER DELIVERY TO
THE VESSEL, BE LANDED IN THE UNITED STATES.  THROUGHOUT, THE OIL IS
SUBJECT TO THE OBLIGATION OF RESPONDENT'S BONDS THAT IT SHALL REMAIN
UNDER SUCH SUPERVISION AND CONTROL AND SHALL NOT BE DIVERTED FROM ITS
ULTIMATE DESTINATION AS SHIPS' STORES. 

ARTICLE 942 OF THE CUSTOMS REGULATIONS OF 1931 PROVIDES THAT
"MERCHANDISE IN BONDED WAREHOUSE IS NOT SUBJECT TO LEVY, ATTACHMENT, OR
OTHER PROCESS OF A STATE COURT  ..."  AND THAT "IMPORTED GOODS IN
BONDED WAREHOUSE ARE EXEMPT FROM TAXATION UNDER THE GENERAL LAWS OF THE
SEVERAL STATES."  THESE REGULATIONS, CONTINUED IN CUSTOMS REGULATIONS
OF 1937, ART. 940, APPEARED AS ART. 731, REGULATIONS OF 1915, AND ART.
850 OF REGULATIONS OF 1923.  THEY WERE THUS IN FORCE WHEN THE TARIFF
ACT OF 1930 WAS ADOPTED AND WERE INCORPORATED BY REFERENCE, CF.
MCCAUGHN V. HERSHEY CHOCOLATE CO., 283 U.S. 488, 492, BY THE PROVISIONS
OF SECS. 309, 311, ALREADY NOTED, WHICH ALSO ADOPTED THE EARLIER
PROVISIONS OF SEC. 1351, TITLE 26, U.S.C., R.S. SEC. 3433, AND DECLARED
THAT ARTICLES MANUFACTURED FROM IMPORTED MATERIALS IN BONDED WAREHOUSE
SHOULD BE PLACED THERE UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF
THE TREASURY. 

THE PROVISIONS OF THE REVENUE ACT OF 1932, READ WITH THOSE OF THE
TARIFF ACT OF 1930 AND WITH THE STATUTES AND REGULATIONS WHICH WE HAVE
MENTIONED, THUS AFFORD A COMPREHENSIVE SCHEME FOR THE REGULATION OF THE
IMPORTATION OF THE CRUDE PETROLEUM AND OF ITS CONTROL WHILE IN THE
COURSE OF MANUFACTURE IN BOND INTO FUEL OIL AND ITS DELIVERY AS SHIPS'
STORES TO VESSELS IN FOREIGN COMMERCE, ALL CALCULATED TO INSURE THE
DEVOTION OF THE MANUFACTURED OIL EXCLUSIVELY TO THAT PURPOSE. 

THE STATUTES AND REGULATIONS TAKEN TOGETHER OPERATE AS REGULATIONS OF
FOREIGN COMMERCE, AS THE LEGISLATIVE HISTORY SHOWS THEY WERE INTENDED
TO DO.  THE TARIFF ACT OF 1930, OF WHICH SEC. 601 OF THE REVENUE ACT OF
1932 IS IN EFFECT A PART, IS ENTITLED, "AN ACT TO PROVIDE REVENUE, TO
REGULATE COMMERCE WITH FOREIGN COUNTRIES, TO ENCOURAGE INDUSTRIES OF
THE UNITED STATES, TO PROTECT AMERICAN LABOR, AND FOR OTHER PURPOSES." 
THE OBVIOUS TENDENCY OF THE EXEMPTION, FROM THE TAX LAID UPON
IMPORTATION OF CRUDE PETROLEUM, WHEN IT OR ITS PRODUCT IS USED AS
SHIPS' STORES BY VESSELS ENGAGED IN FOREIGN COMMERCE IS TO ENCOURAGE
IMPORTATION OF THE CRUDE OIL FOR SUCH USE AND THUS TO ENABLE AMERICAN
REFINERS TO MEET FOREIGN COMPETITION AND TO RECOVER TRADE WHICH HAD
BEEN LOST BY THE IMPOSITION OF THE TAX.  THAT TENDENCY, AND THE
TENDENCY OF THE SALE OF TAX-FREE FUEL TO VESSELS ENGAGED IN FOREIGN
COMMERCE TO PROMOTE THE COMMERCE, WERE CONSIDERATIONS TO BE TAKEN INTO
ACCOUNT BY CONGRESS IN FIXING THE TERMS OF THE STATUTE, AND ITS
ADOPTION AS A MEANS OF REGULATING AND PROMOTING FOREIGN COMMERCE WAS
WITHIN THE CONGRESSIONAL POWER.  BOARD OF TRUSTEES V. UNITED STATES,
289 U.S. 48. 

THAT SUCH WAS THE PURPOSE OF THE PRESENT LEGISLATION IS CONFIRMED BY
ITS HISTORY.  SENATE REPORT NO. 58, 73D CONG., 1ST SESS., ON THE BILL
WHICH WAS ENACTED AS SEC. 630 OF THE REVENUE ACT OF 1932, EXEMPTING
FUEL PLACED ON VESSELS ENGAGED IN FOREIGN COMMERCE FROM THE TAX,
DECLARED, PAGE 3: "IT IS BELIEVED THAT THIS AMENDMENT WILL ENABLE THE
AMERICAN MANUFACTURERS TO COMPETE MORE FAVORABLY WITH THEIR FOREIGN
COMPETITORS FOR THIS BUSINESS WITHOUT ANY SUBSTANTIAL LOSS OF REVENUE,
SINCE THE EFFECT OF THE PRESENT LAW IS TO FORCE PURCHASES ABROAD."  IT
ADDED THAT THE PROVISIONS FOR DRAWBACK OF THE TAX ON IMPORTATION "ALSO
RELIEVES AMERICAN MANUFACTURERS FROM A COMPETITIVE DISADVANTAGE."  FROM
STATEMENTS MADE ON THE FLOOR OF THE SENATE BY THE SPONSOR OF THE BILL
IT APPEARS THAT ONE PURPOSE OF THE EXEMPTION WAS TO INCREASE THE TRADE
IN FUEL OIL IN AMERICAN PORTS WHICH HAD BEEN LOST THROUGH PURCHASE OF
FUEL IN FOREIGN PORTS BY VESSELS ENGAGED IN FOREIGN COMMERCE FOLLOWING
THE IMPOSITION OF THE TAX BY SEC. 601(C)(4).  77 CONG. REC., PART III,
3212-3214. 

THE LAYING OF A DUTY ON IMPORTS, ALTHOUGH AN EXERCISE OF THE TAXING
POWER, IS ALSO AN EXERCISE OF THE POWER TO REGULATE FOREIGN COMMERCE,
HAMPTON & CO. V. UNITED STATES, 276 U.S. 394, 411; BOARD OF TRUSTEES V.
UNITED STATES, SUPRA, 58.  THE EXEMPTION OF IMPORTS FROM THE DUTY OR
THE ALLOWANCE OF A DRAWBACK WHEN THEY ARE DEVOTED TO PARTICULAR
PURPOSES OR USES, OR WHEN THEY ARE EXPORTED OR OTHERWISE SENT OUT OF
THE COUNTRY, IS LIKEWISE A REGULATION OF FOREIGN COMMERCE, SEE GIBBONS
V. OGDEN, 9 WHEAT.  1, 201, 202; GROVES V. SLAUGHTER, 15 PET. 449,
505.  CUSTOMS REGULATIONS TO INSURE THE DEVOTION OF THE IMPORTS TO THE
INTENDED USE ARE LIKEWISE WITHIN THE CONGRESSIONAL POWER SINCE SUCH
REGULATIONS ARE NOT ONLY NECESSARY OR APPROPRIATE TO PROTECT THE
REVENUE, BUT ARE MEANS TO THE DESIRED END, THE REGULATION OF FOREIGN
COMMERCE BY INSURING THAT THE PARTICULAR CLASS OF EXEMPTED IMPORTS ARE
USED FOR THE PURPOSES FOR WHICH THE EXEMPTION IS ALLOWED. 

THE QUESTION REMAINS, WHETHER THE PRESENT TAX CONFLICTS WITH THE
CONGRESSIONAL POLICY ADOPTED BY THE ACTS OF CONGRESS WHICH WE HAVE
DISCUSSED.  AS WE HAVE SEEN, THE EXEMPTION AND DRAWBACK PROVISIONS WERE
DESIGNED, AMONG OTHER PURPOSES, TO RELIEVE THE IMPORTER OF THE IMPORT
TAX SO THAT HE MIGHT MEET FOREIGN COMPETITION IN THE SALE OF FUEL AS
SHIPS' STORES.  IN FURTHERANCE OF THAT END CONGRESS PROVIDED FOR THE
SEGREGATION OF THE IMPORTED MERCHANDISE FROM THE MASS OF GOODS WITHIN
THE STATE, PRESCRIBED THE PROCEDURE TO INSURE ITS USE FOR THE INTENDED
PURPOSE, AND BY REFERENCE CONFIRMED AND ADOPTED CUSTOMS REGULATIONS
PRESCRIBING THAT THE MERCHANDISE, WHILE IN BONDED WAREHOUSE, SHOULD BE
FREE FROM STATE TAXATION.  IT IS EVIDENT THAT THE PURPOSE OF THE
CONGRESSIONAL REGULATION OF THE COMMERCE WOULD FAIL IF THE STATE WERE
FREE AT ANY STAGE OF THE TRANSACTION TO IMPOSE A TAX WHICH WOULD LESSEN
THE COMPETITIVE ADVANTAGE CONFERRED ON THE IMPORTER BY CONGRESS, AND
WHICH MIGHT EQUAL OR EXCEED THE REMITTED IMPORT DUTY.  SEE, PEOPLE V.
COMPAGNIE GENERALE TRANSATLANTIQUE, 107 U.S. 59, 63.  THE CONGRESSIONAL
REGULATION, READ IN THE LIGHT OF ITS PURPOSE, IS TANTAMOUNT TO A
DECLARATION THAT IN ORDER TO ACCOMPLISH CONSTITUTIONALLY PERMISSIBLE
ENDS, THE IMPORTED MERCHANDISE SHALL NOT BECOME A PART OF THE COMMON
MASS OF TAXABLE PROPERTY WITHIN THE STATE, PENDING ITS DISPOSITION AS
SHIPS' STORES AND SHALL NOT BECOME SUBJECT TO THE STATE TAXING POWER. 
THE CUSTOMS REGULATION PRESCRIBING THE EXEMPTION FROM STATE TAXATION,
WHEN APPLIED TO THE FACTS OF THE PRESENT CASE, STATES ONLY WHAT IS
IMPLICIT IN THE CONGRESSIONAL REGULATION OF COMMERCE PRESENTLY
INVOLVED.  THE STATE TAX IN THE CIRCUMSTANCES MUST FAIL AS AN
INFRINGEMENT OF THE CONGRESSIONAL REGULATION OF THE COMMERCE.  SINNOT
V. DAVENPORT, 22 HOW.  227; PEOPLE V. COMPAGNIE GENERALE
TRANSATLANTIQUE, SUPRA, 63; CF. KELLY V. WASHINGTON, 302 U.S. 1, 9,
10. 

IT IS UNNECESSARY TO CONSIDER WHETHER THE TAX UPON THE SALE OF THE
OIL AS SHIPS' STORES TO VESSELS ENGAGED IN FOREIGN COMMERCE IS IN THE
CIRCUMSTANCES OF THIS CASE AN IMPOST ON IMPORTS OR EXPORTS, OR A DUTY
OF TONNAGE PROHIBITED BY ARTICLE I, SEC. 10, CLAUSES 2 AND 3 OF THE
CONSTITUTION.  AFFIRMED. 

FN1  CERTIORARI WHICH HAD BEEN ALLOWED BY THE SUPREME COURT OF THE
UNITED STATES DECEMBER 4, 1939, 308 U.S. 545, BEFORE THE AMENDMENT OF
THE REMITTITUR BY THE NEW YORK COURT OF APPEALS, WAS DISMISSED JANUARY
15, 1940, ANTE, P. 2, ON THE GROUND THAT IN THE ABSENCE OF AN EXPLICIT
STATEMENT BY THE COURT OF APPEALS THAT IT HAD ANNULLED THE ASSESSMENT
OF THE TAX SOLELY BECAUSE OF THE VIOLATION OF THE FEDERAL CONSTITUTION,
THE COURT WAS UNABLE TO FIND THAT THE DECISION OF THE HIGHEST COURT OF
THE STATE DID NOT REST UPON AN ADEQUATE NON-FEDERAL GROUND.  ON MOTION
FOR REHEARING, BASED ON THE AMENDED REMITTITUR OF THE COURT OF APPEALS,
THE ORDER OF DISMISSAL WAS, ON FEBRUARY 5, 1940, VACATED AND THE CAUSE
RESTORED TO THE DOCKET, POST, P. 692. 

FN2 ARTICLE 829 OF THE CUSTOMS REGULATIONS OF 1929, IN FORCE WHEN THE
TARIFF ACT OF 1930 WAS ENACTED AND CONTINUED AS ARTICLE 921 OF CUSTOMS
REGULATIONS OF 1931, AND AS ARTICLE 919 OF CUSTOMS REGULATIONS OF 1937,
DEFINES CLASS 6 WAREHOUSES AS THOSE "FOR THE MANUFACTURE IN BOND,
SOLELY FOR EXPORTATION, OF ARTICLES MADE IN WHOLE OR IN PART OF
IMPORTED MATERIALS.  ...  " 

FN3  SECTION 311 OF THE TARIFF ACT OF 1930, 46 STAT. 691, UNDER WHICH
RESPONDENT'S CLASS 6 BONDED WAREHOUSE WAS ESTABLISHED AND OPERATED,
PROVIDED FOR THE MANUFACTURE IN SUCH WAREHOUSE OF ARTICLES MADE FROM
IMPORTED MATERIALS AND INTENDED FOR EXPORTATION FREE OF DUTY UNDER SUCH
REGULATIONS AS THE SECRETARY OF THE TREASURY MIGHT PRESCRIBE, AND ALSO
DECLARED THAT THE PROVISIONS OF SEC. 1351 OF TITLE 26, U.S.C. (SEC.
3433 OF THE REVISED STATUTES) SHOULD, SO FAR AS PRACTICABLE, APPLY TO
SUCH BONDED MANUFACTURING WAREHOUSES.  SECTION 1351 PROVIDES FOR THE
MANUFACTURE IN BONDED WAREHOUSE OF ARTICLES FROM IMPORTED MATERIALS
UNDER SUCH RULES AS THE SECRETARY MAY PRESCRIBE AND UNDER THE DIRECTION
OF THE PROPER CUSTOMS OFFICER, AND DIRECTS THAT NO ARTICLE SO
MANUFACTURED IN A BONDED WAREHOUSE "SHALL BE TAKEN THEREFROM EXCEPT FOR
EXPORTATION UNDER THE DIRECTION OF THE PROPER OFFICER HAVING CHARGE
THEREOF  ...  WHOSE CERTIFICATE DESCRIBING THE ARTICLES  ...  SHALL BE
RECEIVED BY THE COLLECTOR OF CUSTOMS IN CANCELLATION OF THE BONDS, OR
RETURN OF THE AMOUNT OF FOREIGN IMPORT DUTIES."  SEE ARTICLES 455, 457,
AND 960 OF THE 1931 CUSTOMS REGULATIONS. 

FN4  SEE ARTICLES 455 TO 461, CUSTOMS REGULATIONS OF 1931, CF.
ARTICLES 410-414, REGULATIONS OF 1915; ARTICLES 433-437, REGULATIONS OF
1923 AND ARTICLES 464-470 OF THE 1937 REGULATIONS. 

FN5  SEE CH. 16, TRANSPORTATION IN BOND AND MERCHANDISE IN TRANSIT;
CH. 17, CUSTOMS WAREHOUSES AND CONTROL OF MERCHANDISE THEREIN, 1931
CUSTOMS REGULATIONS.    MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE
DECISION OF THIS CASE. 
..END :





















MCGOLDRICK V. COMPAGNIE GENERALE, 309 U.S. 430 


NO. 44.  ARGUED JANUARY 2, 1940.  - DECIDED MARCH 25, 1940.  - 279 N.Y.
192 - 280 ID. 691 - 18 N.E.2D 28 - 21 N.E.2D 199, REVERSED. 


1.  APPLICATION OF THE NEW YORK CITY SALES TAX TO SALES OF FUEL OIL,
CONTRACTED FOR IN NEW YORK CITY AND PERFORMED AFTER SHIPMENT FROM NEW
JERSEY BY DELIVERY TO THE PURCHASER'S VESSELS IN NEW YORK HARBOR, HELD
NOT TO HAVE IMPOSED AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE. 
MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., ANTE, P. 33.  P. 431. 

2.  UPON REVIEW OF A DECISION OF A STATE COURT ADJUDGING A STATUTE OF
THE STATE INVALID BY AN ERRONEOUS CONSTRUCTION OF THE FEDERAL
CONSTITUTION, THIS COURT WILL NOT ENTERTAIN OTHER CONSTITUTIONAL
OBJECTIONS AGAINST THE STATUTE AND IN SUPPORT OF THE JUDGMENT, WHICH
WERE NOT PRESENTED TO OR CONSIDERED BY THE STATE COURT; BUT WILL
REVERSE THE JUDGMENT, LEAVING THE STATE COURTS FREE TO DECIDE ANY
FEDERAL QUESTION REMAINING UNDECIDED HERE WHICH MAY BE RAISED IN
CONFORMITY WITH THEIR OWN PROCEDURE.  P. 433. 

MCGOLDRICK, COMPTROLLER OF THE CITY OF NEW YORK, V. COMPAGNIE GENERALE
TRANSATLANTIQUE. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 307 U.S. 620, TO REVIEW THE AFFIRMANCE OF JUDGMENTS, 254
APP. DIV. 237, 4 N.Y.S.2D 661, SETTING ASIDE AS IN VIOLATION OF THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION A TAX LEVIED BY THE CITY OF
NEW YORK ON SALES OF FUEL OIL. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO MCGOLDRICK V. BERWIND-WHITE COAL MINING
CO., ANTE, P. 33, BROUGHT HERE TO REVIEW A JUDGMENT OF THE NEW YORK
STATE SUPREME COURT THAT THE NEW YORK CITY TAX LAID UPON SALES OF GOODS
FOR CONSUMPTION, IS AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE. 

UPON CERTIORARI TO REVIEW A DETERMINATION BY THE COMPTROLLER OF THE
CITY OF NEW YORK THAT RESPONDENT WAS SUBJECT TO A NEW YORK CITY TAX
UPON SALES TO IT OF FUEL OIL IN 1934 AND 1935, THE APPELLATE DIVISION
OF THE NEW YORK SUPREME COURT HELD THAT THE TAXING STATUTE AS APPLIED
DID SO INFRINGE.  254 APP. DIV. 237; 4 N.Y.S.2D 661.  THE COURT OF
APPEALS AFFIRMED, 279 N.Y. 192; 18 N.E.2D 28, WITH OPINION, ON THE
SINGLE GROUND THAT THE TAX WAS UNCONSTITUTIONAL BY REASON OF ITS EFFECT
ON INTERSTATE COMMERCE, AND BY ITS AMENDED REMITTITUR THE COURT STATED
THAT THE AFFIRMANCE WAS ON THE SOLE GROUND THAT THE TAX VIOLATED THE
COMMERCE CLAUSE.  280 N.Y. 691; 21 N.E.2D 199.  WE GRANTED CERTIORARI,
307 U.S. 620, UPON A PETITION WHICH ASSAILED THE DETERMINATION OF THE
STATE COURT THAT THE TAX WAS A PROHIBITED BURDEN ON INTERSTATE
COMMERCE, THE QUESTION BEING OF PUBLIC IMPORTANCE. 

THE RELEVANT PROVISIONS OF THE TAXING ACT ARE SET OUT IN OUR OPINION
IN THE BERWIND-WHITE COAL MINING COMPANY CASE, AND NEED NOT BE REPEATED
HERE.  THE APPELLATE DIVISION FOUND FACTS NOT CHALLENGED HERE AS
FOLLOWS:  APPELLANT, A CORPORATION OF THE REPUBLIC OF FRANCE, OWNS
VESSELS AND OPERATES THEM IN THE TRANSPORTATION OF PASSENGERS AND
FREIGHT BETWEEN THE PORT OF NEW YORK AND FRANCE, AND OTHER FOREIGN
COUNTRIES.  IT IS AUTHORIZED TO DO BUSINESS AND MAINTAINS AN OFFICE IN
NEW YORK CITY, WHERE IN THE COURSE OF ITS BUSINESS IT MAKES PURCHASES
OF FUEL OIL FOR CONSUMPTION IN THE OPERATION OF ITS VESSELS, FROM THE
STANDARD OIL COMPANY OF NEW JERSEY, WHICH ALSO MAINTAINS AN OFFICE AND
CARRIES ON BUSINESS IN THE CITY.  THAT COMPANY ENTERS INTO LONG-TERM
CONTRACTS WITH THE RESPONDENT, NEGOTIATED AND SIGNED IN THE CITY, FOR
THE SALE TO RESPONDENT OF ITS REQUIREMENTS OF FUEL OIL AS ORDERED, TO
BE DELIVERED ALONGSIDE RESPONDENT'S VESSELS IN NEW YORK HARBOR.  ALL
THE SALES PRESENTLY INVOLVED WERE OF OIL STORED BY THE STANDARD OIL
COMPANY IN ITS TANKS IN NEW JERSEY, WHICH AS ORDERED WAS TRANSPORTED BY
BARGE TO RESPONDENT'S VESSELS IN NEW YORK CITY WHERE IT WAS DELIVERED. 

THE OIL THUS TRANSPORTED AND DELIVERED TO RESPONDENT WAS OF TWO
TYPES.  ONE, "BONDED FUEL OIL," IS REFINED OIL IMPORTED BY THE STANDARD
OIL COMPANY FROM FOREIGN COUNTRIES AND STORED IN BOND IN NEW JERSEY
WITHOUT PAYMENT OF IMPORT DUTIES, PURSUANT TO THE REVENUE LAWS OF THE
UNITED STATES WHICH AUTHORIZE RELEASE FROM THE BOND UPON DELIVERY OF
THE OIL TO A FOREIGN STEAMSHIP FOR EXPORT OR USE AS FUEL BY THE
VESSEL.  THE OTHER TYPE, KNOWN AS "DRAWBACK OIL," IS THE PRODUCT OF
CRUDE OIL IMPORTED FROM FOREIGN COUNTRIES BY THE STANDARD OIL COMPANY
AND REFINED AT ITS NEW JERSEY PLANT.  AN IMPORT DUTY IS PAID UPON THE
OIL, BUT UPON DELIVERY OF THE REFINED OIL TO A FOREIGN STEAMSHIP FOR
EXPORT, OR FOR USE AS FUEL ON THE VESSEL, THE IMPORTER IS ENTITLED
UNDER THE REVENUE LAWS TO A REFUND OR DRAWBACK ON THE DUTY PAID.  19
U.S.C. SECS. 1309, 1313, 46 STAT. 690, 693. 

SO FAR AS THE VALIDITY OF THE TAX WITH RESPECT TO THE INTERSTATE
COMMERCE IS CONCERNED, OUR DECISION SUSTAINING IT IN THE BERWIND-WHITE
COAL MINING COMPANY CASE IS CONTROLLING, AND THE JUDGMENT MUST BE
REVERSED, UNLESS THE STATE OF THE RECORD IS SUCH AS TO ENTITLE
RESPONDENT TO ASSAIL THE TAX UPON CONSTITUTIONAL GROUNDS NOT URGED OR
DECIDED IN THE STATE COURTS. 

RESPONDENT'S PETITION TO THE NEW YORK SUPREME COURT TO REVIEW THE
DETERMINATION OF THE COMPTROLLER SET OUT THAT THE TAX "WAS ASSESSED
UPON THE PURCHASE PRICE PAID ON TRANSACTIONS IN INTERSTATE AND FOREIGN
COMMERCE" AND THAT THE CITY WAS "WITHOUT POWER TO IMPOSE SAID TAX ON
SAID TRANSACTIONS BY VIRTUE OF THE PROVISIONS OF THE CONSTITUTION AND
THE LAWS OF THE UNITED STATES," SPECIFYING THE COMMERCE CLAUSE AND
ARTICLE I, SEC. 10, CLAUSE 2, PROHIBITING "IMPOSTS OR DUTIES ON IMPORTS
OR EXPORTS."  NO MENTION WAS MADE OF ANY APPLICABLE STATUTE OF THE
UNITED STATES. 

RESPONDENT'S BRIEF AND ARGUMENT HERE ADVANCE AS REASONS IN SUPPORT OF
THE JUDGMENT OF THE STATE COURT IN ITS FAVOR THAT THE BONDED OIL AND
DRAWBACK OIL, AT THE TIME OF DELIVERY TO RESPONDENT, RETAINED THEIR
CHARACTER AS IMPORTS, AND THAT THEY WERE THEN IN PROCESS OF BEING
EXPORTED, SO THAT THE TAX IMPOSED UPON THE DELIVERY TO THE PURCHASER IS
A PROHIBITED IMPOST OR DUTY ON IMPORTS AND EXPORTS. 

RESPONDENT CONCEDES BY ITS BRIEF THAT THE CONTENTIONS IT NOW MAKES
WERE NOT ARGUED IN THE NEW YORK COURT OF APPEALS, AND DOES NOT DENY
PETITIONER'S ASSERTION HERE THAT RESPONDENT STATED IN ITS BRIEF IN THE
APPELLATE DIVISION, "THE COURT NEED GIVE NO ATTENTION TO THEM," AND
THAT BY ITS BRIEF IN THE COURT OF APPEALS RESPONDENT EXPLICITLY LIMITED
ITS PRESENTATION OF THE CASE TO THE INTERSTATE COMMERCE POINT. 
WHETHER, UNDER THE PRACTICE OF THE COURT OF APPEALS, RESPONDENT WAS IN
THE CIRCUMSTANCES FREE TO ASK DECISION OF THESE QUESTIONS THERE, WE ARE
NOT ADVISED.  BUT IN ANY EVENT THE RECORD DOES NOT DISCLOSE THAT THEY
WERE PRESENTED TO THE COURT OF APPEALS, THE HIGHEST COURT OF THE STATE
IN WHICH DECISION COULD HAVE BEEN HAD WHOSE DECISION WE REVIEW, AND IT
SHOWS THAT THAT COURT CONSIDERED AND PASSED UPON ONLY THE INTERSTATE
COMMERCE QUESTION. 

BY VIRTUE OF THE PETITION FOR CERTIORARI ADDRESSED TO THE
CONSTITUTIONAL QUESTION WHICH THE STATE COURT DECIDED, THIS COURT HAS
JURISDICTION OF THE CAUSE.  AND RESPONDENT, IN URGING DECISION HERE OF
THE CONSTITUTIONAL QUESTIONS NOT PRESSED IN THE STATE COURT, RELIES ON
THE FAMILIAR RULE OF APPELLATE COURT PROCEDURE IN FEDERAL COURTS THAT,
WITHOUT A CROSS-PETITION OR APPEAL, A RESPONDENT OR APPELLEE MAY
SUPPORT THE JUDGMENT IN HIS FAVOR UPON GROUNDS DIFFERENT FROM THOSE
UPON WHICH THE COURT BELOW RESTED ITS DECISION.  UNITED STATES V.
AMERICAN RAILWAY EXPRESS CO., 265 U.S. 425, 435; LANGNES V. GREEN, 282
U.S. 531.  SEE CENTRAL KENTUCKY NATURAL GAS CO. V. RAILROAD COMMISSION,
290 U.S. 264, 269. 

BUT IT IS ALSO THE SETTLED PRACTICE OF THIS COURT, IN THE EXERCISE OF
ITS APPELLATE JURISDICTION, THAT IT IS ONLY IN EXCEPTIONAL CASES, AND
THEN ONLY IN CASES COMING FROM THE FEDERAL COURTS, THAT IT CONSIDERS
QUESTIONS URGED BY A PETITIONER OR APPELLANT NOT PRESSED OR PASSED UPON
IN THE COURTS BELOW.  BLAIR V. OESTERLEIN CO., 275 U.S. 220, 225;
DUIGNAN V. UNITED STATES, 274 U.S. 195, 200.  IN CASES COMING HERE FROM
STATE COURTS IN WHICH A STATE STATUTE IS ASSAILED AS UNCONSTITUTIONAL,
THERE ARE REASONS OF PECULIAR FORCE WHICH SHOULD LEAD US TO REFRAIN
FROM DECIDING QUESTIONS NOT PRESENTED OR DECIDED IN THE HIGHEST COURT
OF THE STATE WHOSE JUDICIAL ACTION WE ARE CALLED UPON TO REVIEW.  APART
FROM THE RELUCTANCE WITH WHICH EVERY COURT SHOULD PROCEED TO SET ASIDE
LEGISLATION AS UNCONSTITUTIONAL ON GROUNDS NOT PROPERLY PRESENTED, DUE
REGARD FOR THE APPROPRIATE RELATIONSHIP OF THIS COURT TO STATE COURTS
REQUIRES US TO DECLINE TO CONSIDER AND DECIDE QUESTIONS AFFECTING THE
VALIDITY OF STATE STATUTES NOT URGED OR CONSIDERED THERE.  IT IS FOR
THESE REASONS THAT THIS COURT, WHERE THE CONSTITUTIONALITY OF A STATUTE
HAS BEEN UPHELD IN THE STATE COURT, CONSISTENTLY REFUSES TO CONSIDER
ANY GROUNDS OF ATTACK NOT RAISED OR DECIDED IN THAT COURT.  DEWEY V.
DES MOINES, 173 U.S. 193; KEOKUK & HAMILTON BRIDGE CO. V. ILLINOIS, 175
U.S. 626, 633; WHITNEY V. CALIFORNIA, 274 U.S. 357, 362, 363; NEW YORK
EX REL. COHN V. GRAVES, 300 U.S. 308, 317. 

LIKE CONSIDERATIONS, WE THINK, REQUIRE US TO REFUSE TO ENTERTAIN SUCH
NEW GROUNDS OF ATTACK AS A SUPPORT FOR A STATE JUDGMENT OF INVALIDITY
BASED ON AN ERRONEOUS CONSTRUCTION OF THE CONSTITUTION.  IN THE
EXERCISE OF OUR APPELLATE JURISDICTION TO REVIEW THE ACTION OF STATE
COURTS WE SHOULD HOLD OURSELVES FREE TO SET ASIDE OR REVISE THEIR
DETERMINATIONS ONLY SO FAR AS THEY ARE ERRONEOUS AND ERROR IS NOT TO BE
PREDICATED UPON THEIR FAILURE TO DECIDE QUESTIONS NOT PRESENTED. 
SIMILARLY THEIR ERRONEOUS JUDGMENTS OF UNCONSTITUTIONALITY SHOULD NOT
BE AFFIRMED HERE ON CONSTITUTIONAL GROUNDS WHICH SUITORS HAVE FAILED TO
URGE BEFORE THEM, OR WHICH, IN THE COURSE OF PROCEEDINGS THERE, HAVE
BEEN ABANDONED. 

UPON THE REMAND OF THIS CAUSE FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION, THE STATE COURTS WILL BE FREE TO DECIDE
ANY FEDERAL QUESTION REMAINING UNDECIDED HERE WHICH, IN CONFORMITY WITH
THEIR OWN PROCEDURE, MAY BE RAISED FOR DECISION THERE, AND THE REMAND
WILL BE WITHOUT PREJUDICE TO THE FURTHER PRESENTATION OF ANY SUCH
QUESTION TO THIS COURT.  REVERSED. 

THE CHIEF JUSTICE AND MR. JUSTICE ROBERTS CONCUR IN THE VIEW THAT THE
QUESTIONS RELATING TO FOREIGN COMMERCE ARE NOT PROPERLY BEFORE US IN
THIS CASE, BUT THINK THAT THE JUDGMENT OF THE STATE COURT, HOLDING THAT
THE TAX AS HERE LAID PLACES AN UNCONSTITUTIONAL BURDEN UPON INTERSTATE
COMMERCE, SHOULD BE AFFIRMED UPON THE GROUNDS STATED IN THE DISSENTING
OPINION IN MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., ANTE, P. 59. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE MURPHY TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






















ETHYL GASOLINE CORP. V. U.S., 309 U.S. 436 


NO. 536.  ARGUED MARCH 1, 4, 1940.  - DECIDED MARCH 25, 1940.  - 27
F.SUPP.  959, AFFIRMED. 


A CORPORATION OWNING A PATENT FOR A POISONOUS FLUID COMPOUND
CONTAINING LEAD, WHICH, WHEN MIXED WITH THE GASOLINE USED AS FUEL IN
HIGH COMPRESSION INTERNAL COMBUSTION ENGINES, ADDS GREATLY TO THEIR
EFFICIENCY, AND OWNING ALSO A PATENT CLAIMING THE FUEL MIXTURE AND
ANOTHER CLAIMING A METHOD OF USING IT, MANUFACTURED THE FLUID AND SOLD
IT, WITHOUT ROYALTY, UNDER A LICENSING SYSTEM, TO NEARLY ALL OF THE
LEADING MANUFACTURERS OF GASOLINE IN THE COUNTRY, ONE OF WHICH OWNED
HALF OF THE PATENTEE'S CAPITAL STOCK.  THESE REFINERS MIXED THE FLUID
WITH THEIR GASOLINE AND SOLD THE RESULTING PATENTED FLUID IN GREAT
QUANTITIES TO JOBBERS, WHO IN TURN SOLD IT TO RETAILERS AND CONSUMERS. 
UNDER THE LICENSE SYSTEM:  REFINERS COULD NOT SELL TO JOBBERS OTHER
THAN THOSE LICENSED BY THE PATENTEE, AND MUST MAINTAIN A CERTAIN PRICE
DIFFERENTIAL; THEY MUST CONFORM TO PUBLIC HEALTH REGULATIONS IN MIXING
THE FUEL AND TO CONDITIONS TOUCHING THEIR USE OF THE PATENTEE'S
CORPORATE NAME AND TRADEMARK OR TRADE-NAMES; A JOBBER COULD SELL,
WITHIN A SPECIFIED TERRITORY ONLY, THE LEAD-TREATED GASOLINE SOLD HIM
BY A DESIGNATED LICENSED REFINER, GENERALLY THE ONE THROUGH WHOM HE
MUST APPLY FOR HIS LICENSE; HE MUST MAKE MONTHLY REPORTS TO THE
PATENTEE, WITH A LIST OF ALL PLACES OF SALE; MUST COMPLY WITH HEALTH
REGULATIONS AS TO THE HANDLING OF THE FUEL; MUST POST AND DISTRIBUTE
NOTICES CONCERNING SUCH HANDLING AS REQUIRED BY THE PATENTEE; MUST
PERMIT PHYSICAL EXAMINATION OF EMPLOYEES; MUST ABSTAIN FROM
ADULTERATION OR DILUTION OF THE FUEL; AND MUST COMPLY WITH REQUIREMENTS
AS TO THE USE OF THE PATENTEE'S NAME OR TRADE-NAME.  THE PATENTEE
RESERVED THE RIGHT TO CANCEL JOBBERS' LICENSES AT WILL.  THIS LICENSING
SYSTEM AFFECTED AND CONTROLLED THE BUSINESS OF MOST OF THOSE ENGAGED IN
MANUFACTURING MOTOR FUEL IN THE COUNTRY, INCLUDING NEARLY ALL THE
LEADING OIL COMPANIES AND MOST OF THE JOBBERS.  THE GREATER PART OF THE
TREATED GASOLINE WAS SOLD AND TRANSPORTED IN INTERSTATE COMMERCE, MUCH
OF IT BEING DISTRIBUTED THROUGH THE LICENSED JOBBERS.  THE PATENTEE
MADE A PRACTICE OF ASCERTAINING, THROUGH INVESTIGATIONS BY ITS AGENTS,
WHAT JOBBERS FAILED TO COMPLY WITH THE MARKET POLICIES AND POSTED
PRICES OF THE MAJOR OIL COMPANIES, AND BY REJECTION OF APPLICATIONS FOR
LICENSES, AND IN OTHER WAYS, CREATED A BELIEF AMONG REFINERS AND
JOBBERS THAT UNDER ITS LICENSING SYSTEM, JOBBERS MUST YIELD SUCH
COMPLIANCE.  THE PATENTEE THUS BUILT UP A COMBINATION CAPABLE OF USE,
AND ACTUALLY USED, AS A MEANS OF SUPPRESSING COMPETITION AMONG JOBBERS
AND CONTROLLING THEIR PRICES.  IT WAS CONCEDED THAT IF THIS CONTROL OF
THE MARKET HAD BEEN ACQUIRED WITHOUT AID OF THE PATENTS, BUT WHOLLY BY
CONTRACTS WITH REFINERS AND JOBBERS, IT WOULD INVOLVE VIOLATION OF THE
SHERMAN ACT.  HELD: 

(1) A PATENTEE MAY NOT, BY ATTACHING A CONDITION TO HIS LICENSE,
ENLARGE HIS MONOPOLY AND THUS ACQUIRE SOME OTHER WHICH THE STATUTE AND
THE PATENT TOGETHER DID NOT GIVE.  P. 455. 

(2)  BY THE AUTHORIZED SALES OF THE FUEL BY REFINERS TO JOBBERS, THE
PATENT MONOPOLY OVER IT IS EXHAUSTED, AND AFTER THE SALE NEITHER THE
PATENTEE NOR THE REFINERS MAY LONGER RELY ON THE PATENTS TO EXERCISE
ANY CONTROL OVER THE PRICE AT WHICH THE FUEL MAY BE RESOLD.  P. 457. 

(3)  AGREEMENTS FOR MAINTAINING PRICES OF ARTICLES MOVING IN
INTERSTATE COMMERCE ARE, WITHOUT MORE, UNREASONABLE RESTRAINTS WITHIN
THE MEANING OF THE SHERMAN ACT BECAUSE THEY ELIMINATE COMPETITION; AND
AGREEMENTS WHICH CREATE POWER OF SUCH PRICE MAINTENANCE, EXHIBITED BY
ITS ACTUAL EXERTION FOR THAT PURPOSE, ARE IN THEMSELVES UNLAWFUL
RESTRAINTS WITHIN THE MEANING OF THE SHERMAN ACT.  P. 458. 

(4)  THE USE BY THE CORPORATION OF THE JOBBER LICENSING SYSTEM IN
BUILDING UP A COMBINATION CAPABLE OF USE AND ACTUALLY USED AS A MEANS
OF CONTROLLING JOBBERS' PRICES AND OF CONTROLLING COMPETITION AMONG
THEM, FOR WHICH IT COULD NOT LAWFULLY CONTRACT, EXTENDS BEYOND ITS
PATENT MONOPOLY AND IS A VIOLATION OF THE SHERMAN ACT.  P. 458. 

(5)  THE PATENT MONOPOLY OF ONE INVENTION MAY NO MORE BE ENLARGED FOR
THE EXPLOITATION OF THE MONOPOLY OF ANOTHER THAN FOR THE EXPLOITATION
OF AN UNPATENTED ARTICLE, OR FOR THE EXPLOITATION OR PROMOTION OF A
BUSINESS NOT EMBRACED WITHIN THE PATENT.  P. 459. 

(6)  SUCH INTEREST AS THE PATENTEE IN THIS CASE HAS IN PROTECTING THE
HEALTH OF THE PUBLIC IN CONNECTION WITH THE DISTRIBUTION OF THE FUEL,
AND IN PREVENTING ADULTERATION, DETERIORATION AND DILUTION OF THE FUEL
IN THE HANDS OF THE JOBBERS, MAY BE ADEQUATELY PROTECTED WITHOUT RESORT
TO THE JOBBER LICENSE DEVICE.  P. 459. 

(7)  SINCE THE UNLAWFUL CONTROL OVER THE JOBBERS WAS ESTABLISHED AND
MAINTAINED BY RESORT TO THE LICENSING DEVICE, THE TRIAL COURT PROPERLY
SUPPRESSED IT, EVEN THOUGH IT HAD BEEN, OR MIGHT BE, USED FOR SOME
LAWFUL PURPOSES.  P. 461. 

ETHYL GASOLINE CORPORATION ET AL. V. UNITED STATES. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF THE DISTRICT COURT ENJOINING THE APPELLANT
CORPORATION AND ITS OFFICERS FROM GRANTING LICENSES TO JOBBERS, TO SELL
AND DISTRIBUTE ITS PATENTED LEADTREATED MOTOR FUEL, AND FROM ENFORCING
PROVISIONS IN LICENSES TO OIL REFINERS RESTRICTING THEIR SALE OF THE
FUEL TO LICENSED JOBBERS.  THE SUIT WAS BY THE GOVERNMENT, UNDER THE
SHERMAN ANTI-TRUST ACT. 

APPELLANT HAS THE RIGHT UNDER ITS PRODUCT AND METHOD PATENTS TO
LICENSE JOBBERS HANDLING ITS PATENTED FUEL.  A PATENTEE MAY IMPOSE ANY
CONDITIONS UPON THE SALE OF THE PATENTED PRODUCT BY ITS LICENSEES WHICH
ARE REASONABLY NECESSARY FOR ITS COMMERCIAL DEVELOPMENT AND FOR
SECURING FINANCIAL RETURN FROM THE PATENT.  RUBBER CO. V. GOODYEAR, 9
WALL.  788, 799; BEMENT V. NATIONAL HARROW CO., 186 U.S. 70; ASPINWALL
MFG. CO. V. GILL, 32 F. 697; MITCHELL V. HAWLEY, 16 WALL.  544; UNITED
STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, 490; GENERAL TALKING
PICTURES CORP. V. WESTERN ELECTRIC CO., 304 U.S. 175; 305 U.S. 124;
STRAIGHT SIDE BASKET CORP. V. WEBSTER BASKET CO., 4 F.SUPP.  644; 10
F.SUPP.  171; 82 F.2D 245; VULCAN MFG. CO. V. MAYTAG CO., 73 F.2D 136. 

WHERE, AS IN THIS CASE, THE PUBLIC INTEREST AND THAT OF THE PATENTEE
COMBINE TO REQUIRE THE EARLY, ECONOMICAL, AND WIDESPREAD USE OF THE
INVENTION THROUGH THE LICENSING OF OTHERS TO MANUFACTURE, ANY
REASONABLE CONDITIONS IMPOSED BY THE LICENSOR TO ENSURE THE QUALITY OF
THE PATENTED PRODUCT MADE BY HIS LICENSEES, TO ACHIEVE ITS READY
IDENTIFICATION AND ACCEPTANCE BY THE PUBLIC, AND TO PREVENT ITS USE IN
A DANGEROUS MANNER, ARE PROPER.  REASONABLENESS IS DETERMINED NOT BY
HINDSIGHT BUT BY THE FACTS CONFRONTING THE PATENTEE IN THE BEGINNING. 
UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, 490; BEMENT V.
NATIONAL HARROW CO., 186 U.S. 70. 

MEASURED BY THESE CRITERIA, THE SECURING OF COMPLIANCE WITH THE
SURGEON GENERAL'S HEALTH REGULATIONS WAS A SINE QUA NON TO MARKETING
THE PATENTED PRODUCT.  AND PROTECTION OF QUALITY - THROUGH TRADEMARK
IDENTIFICATION AND PREVENTION OF ADULTERATION, DILUTION, OR
DETERIORATION OF THE SPECIFIED STANDARD - WAS ESSENTIAL TO SECURING
WIDE PUBLIC ACCEPTANCE.  THERE APPEARS TO BE NO DISPUTE THAT APPELLANT
MAY LAWFULLY RESTRICT ITS REFINER-LICENSEES TO SELLING ONLY TO JOBBERS
WHO COMPLY WITH PRECISELY THE SAME CONDITIONS SPECIFIED IN THE SEPARATE
JOBBER LICENSES.  THE ONLY QUESTION IS WHETHER THERE IS ILLEGALITY IN
APPELLANT, THROUGH LICENSING JOBBERS, DOING DIRECTLY WHAT IT CAN
ADMITTEDLY DO INDIRECTLY. 

UNDER ITS METHOD PATENT APPELLANT HAS AN UNQUESTIONABLE RIGHT TO
LICENSE JOBBERS.  IT HAS A LIKE RIGHT UNDER ITS PRODUCT PATENT AS
WELL.  CARBICE CORP. V. AMERICAN PATENTS CORP., 283 U.S. 27, AND LEITCH
MFG. CO. V. BARBER CO., 302 U.S. 458, DISTINGUISHED.  THE CONDITIONS IN
THE JOBBER LICENSES ARE REASONABLE AND RELATED TO SECURING RETURN FROM
THESE PATENTS.  THEIR USE MAY BE QUESTIONED ONLY AS TO WHETHER THEY
WERE NECESSARY OR WHETHER THEY WERE ABUSED.  BY ANY REALISTIC APPRAISAL
OF THE COMMERCIAL SITUATION THEY WERE CLEARLY NECESSARY.  CF., COCA
COLA CO. V. THE KOKE CO., 254 U.S. 143, 146; COCA-COLA CO. V. BENNETT,
238 F. 513; COCA-COLA CO. V. BUTLER & SONS, 229 F. 224; STANDARD OIL
CO. V. FEDERAL TRADE COMM'N, 273 F. 478, 482; AFF'D 261 U.S. 463;
MENENDEZ V. HOLT, 128 U.S. 514, 520; RALSTON PURINA CO. V. SANIWAX
PAPER CO., 26 F.2D 941, 943, 944; YALE ELECTRIC CORP. V. ROBERTSON, 26
F.2D 972, 974. 

THE RECORD DOES NOT SUPPORT THE CHARGE THAT THROUGH THREAT OF
CANCELLATION THEY WERE USED TO SECURE MAINTENANCE OF REFINERS' PRICES. 

REFUSAL IN A FEW CASES TO LICENSE PRICE-CUTTING JOBBERS TO HANDLE THE
PATENTED PRODUCT ARE NOT SHOWN TO HAVE HAD ANY ACTUAL EFFECT UPON TRADE
- THEY DID NOT RESULT IN PRICE MAINTENANCE, IN LESSENING THE NUMBER OF
JOBBERS, OR IN ANY EFFECT UPON ANY JOBBER, COMMUNITY, OR THE PUBLIC. 
JUSTIFICATION OF SUCH REFUSAL IS FOUND IN THE PATENTEE'S INTEREST IN
PREVENTING THE PATENTED PRODUCT BEING DEALT IN BY THOSE WHO WILL IMPAIR
ITS GOOD WILL AND WHO ARE MORE LIKELY TO DILUTE, ADULTERATE, OR
SUBSTITUTE.  EVEN ON UNPATENTED ARTICLES THIS JUSTIFICATION HAS BEEN
JUDICIALLY SANCTIONED, AND THE PUBLIC INTEREST IN PERMITTING A
MANUFACTURER BY EXPRESS CONTRACT TO PROTECT HIMSELF AGAINST PRICE
CUTTERS HAS COME TO BE WIDELY RECOGNIZED BY FEDERAL AND STATE
ENACTMENTS.  SEE, OLD DEARBORN DISTRIBUTING CO. V. SEAGRAM-DISTILLERS
CORP., 299 U.S. 183.  THE INTEREST OF A NON-MANUFACTURING PATENTEE IS
AS GREAT.  THE CIRCUMSTANCES SURROUNDING THE DEVELOPMENT OF THESE
PATENTS, PARTICULARLY IN THE LIGHT OF THE HISTORY OF THE PETROLEUM
INDUSTRY, MAKE CLEAR THE REASONABLENESS OF APPELLANT'S ACTION.  SINCE
ITS JUSTIFICATION IN REFUSING TO PERMIT ITS PRODUCT TO BE HANDLED BY A
FEW NOTORIOUS PRICE CUTTERS WAS REASONABLE, ITS OCCASIONAL REFUSALS OF
A LICENSE FOR THIS REASON WERE NOT AN UNLAWFUL RESTRAINT OF TRADE. 
CEMENT MFRS.  PROTECTIVE ASSN. V. UNITED STATES, 268 U.S. 588, 605;
STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163, 179; UNITED STATES V.
COLGATE & CO., 250 U.S. 300, 307; EASTERN STATES RETAIL LUMBER DEALERS
ASSN. V. UNITED STATES, 234 U.S. 600, 604.  CF., FEDERAL TRADE
COMMISSION V. RAYMOND CO., 263 U.S. 565, 573; AMERICAN TOBACCO CO. V.
FEDERAL TRADE COMMISSION, 9 F.2D 570; AFF'D 274 U.S. 543; WM. FILENE'S
SONS CO. V. FASHION ORIGINATORS' GUILD, 90 F.2D 556; DR. MILES MEDICAL
CO. V. PARK, 220 U.S. 373, 412; MEYERSON V. HURLBUT, 98 F.2D 232;
BOSTON STORE V. AMERICAN GRAPHOPHONE CO., 246 U.S. 8, 27-28; PALMOLIVE
CO. V. FREEDMAN, (1928) CH. 264; COLUMBIA GRAPHOPHONE CO. V. THOMAS, 41
REP. PAT.  CAS.  294; DUNHILL, LTD. V. GRIFFITHS BROS., 51 REP. PAT. 
CAS.  93. 

EVEN IF APPELLANT'S REFUSAL TO LICENSE A FEW JOBBERS WERE
UNJUSTIFIED, THE DECREE ENTERED WAS IMPROPER AND AN ABUSE OF
DISCRETION.  SUGAR INSTITUTE V. UNITED STATES, 297 U.S. 553, 602.  CF.,
UNITED STATES V. STANDARD OIL CO., 173 F. 177, 192.  THE LOWER COURT
RECOGNIZED APPELLANT'S LEGITIMATE INTEREST IN INSURING COMPLIANCE WITH
THE SURGEON GENERAL'S HEALTH REGULATIONS AND IN PROTECTING THE
TRADEMARK, GOOD WILL, AND REPUTATION OF THE PATENTED PRODUCT.  THE ONLY
PRACTICE IT FOUND UNLAWFUL WAS THE EXCLUSION OF PRICE CUTTERS. 

ABOLISHING THE WHOLE SYSTEM OF JOBBER LICENSES WAS NOT NECESSARY TO
ENJOIN THIS PRACTICE SINCE AN ADEQUATE, SELF-POLICING DECREE COULD HAVE
READILY BEEN ENTERED.  THE SCOPE OF THE DECREE THUS EXCEEDED THE PROOF
OF ANY UNLAWFUL ACTIVITY.  SEE, BLISS CO. V. UNITED STATES, 248 U.S.
37, 48; AMERICAN STEEL FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S. 184;
WARNER & CO. V. LILLY & CO., 265 U.S. 526.  CF., HAGUE V. C.I.O., 307
U.S. 496.  MOREOVER, ITS DRASTIC PROVISIONS WILL FORECLOSE THE
PROTECTION OF APPELLANT'S ADMITTEDLY LEGITIMATE AND ESSENTIAL
INTERESTS.  CF., COCA-COLA CO. V. BENNETT, 238 F. 513.  THE DISTRICT
COURT'S CONCLUSION THAT JOBBER LICENSES WERE NOT NECESSARY IS BASED ON
ASSUMPTIONS UNWARRANTED AND CONTRADICTED BY THE RECORD.  DIST'G
INTERNATIONAL BUSINESS MACHINES CASE, 298 U.S. 131, 140.  THERE IS NO
SUPPORT FOR ITS VIEW THAT THE MERE REPORTING OF VIOLATION TO REFINER
LICENSEES WILL BE EFFECTIVE.  NOR IS THERE ANY EVIDENCE AS TO WHAT
OTHER METHODS ARE POSSIBLE TO PREVENT DILUTION, ADULTERATION, OR
SUBSTITUTION, OR TO INSURE COMPLIANCE WITH HEALTH REGULATIONS.  THE
DECREE, THEREFORE, DRASTICALLY IMPAIRS APPELLANT'S PRESENT ABILITY
SAFELY AND EFFICIENTLY TO MARKET ITS PATENTED PRODUCT.  MORE THAN THIS,
IT SERIOUSLY HAMPERS THE DEVELOPMENT OF THE PATENTS AND LIMITS THE
RETURN FROM THEM DURING THEIR REMAINING LIFE.  FOR IT IS NOW CLEAR THAT
IN THE IMMEDIATE FUTURE THE IMPORTANCE OF QUALITY CONTROLS AND PUBLIC
HEALTH SAFEGUARDS WILL BE FAR GREATER.  AS IT STANDS, EVEN UPON THE
VIEW TAKEN BY THE LOWER COURT THAT JOBBERS MAY NOT BE REFUSED LICENSES
BECAUSE OF A PRIOR HISTORY OF PRICE CUTTING, THE DECREE IS A
CUMBERSOME, DRASTIC, AND UNJUSTIFIABLE SOLUTION. 

APPELLANT, THROUGH THE USE OF ITS LICENSING SYSTEM, HAS COMBINED WITH
123 REFINERS PRODUCING ALL OF THE LEAD-TREATED GASOLINE SOLD IN THE
UNITED STATES TO EXCLUDE FROM THE BUSINESS OF HANDLING SUCH GASOLINE
ALL JOBBERS EXCEPT THOSE LICENSED BY APPELLANT.  IT IS CONCEDED THAT
APPELLANT HAS, IN THE EXERCISE OF ITS UNCONTROLLED DISCRETION, EXCLUDED
JOBBERS FROM THE MARKET AND HAS FIXED THE TERMS AND CONDITIONS WHICH
MUST BE MET BY THOSE JOBBERS WHO HAVE BEEN GIVEN PERMISSION TO ENTER
THE MARKET.  THE COMBINATION RESTRAINS TRADE BECAUSE IT EMPOWERS
APPELLANT TO DECIDE WHO SHALL BE ALLOWED TO ENTER THE MARKET AND ON
WHAT TERMS AND CONDITIONS THE PERMISSION TO DO SO SHALL BE GRANTED. 
PARAMOUNT FAMOUS PICTURES CORP. V. UNITED STATES, 282 U.S. 30; UNITED
STATES V. FIRST NATIONAL PICTURES, INC., 282 U.S. 44; INTERSTATE
CIRCUIT V. UNITED STATES, 306 U.S. 208, 226-229.  SEE, ALSO, DR. MILES
MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373, 408; UNITED STATES V.
BRIMS, 272 U.S. 549; EASTERN STATES LUMBER ASSN. V. UNITED STATES, 234
U.S. 600. 

APPELLANT'S LICENSING SYSTEM ALSO VIOLATES THE ANTITRUST LAWS BECAUSE
ITS BASIC PURPOSE HAS BEEN TO COMPEL JOBBERS TO MAINTAIN RESALE PRICES
OF GASOLINE.  APPELLANT REFUSES LICENSES TO JOBBERS WHO, IN ITS
JUDGMENT, ARE NOT LIKELY TO MAINTAIN THE MARKETING POLICIES AND PRICE
POLICIES OF THE MAJOR OIL COMPANIES.  LICENSEES BELIEVE THEY MUST
COMPLY WITH SUCH POLICIES IN ORDER TO RETAIN THEIR LICENSES. 
APPELLANT, THROUGH ITS FIELD REPRESENTATIVES, INVESTIGATES THE
MARKETING PRACTICES OF JOBBERS WHOM IT LICENSES AND HAS EXERTED DIRECT,
SUBSTANTIAL, AND EXTRAORDINARY INFLUENCE OVER THE PRICE POLICIES OF THE
INDIVIDUAL JOBBERS.  THIS KIND OF ARRANGEMENT IS CLEARLY ILLEGAL UNDER
THE ANTITRUST LAWS.  DR. MILES MEDICAL CO. V. PARK & SONS., 220 U.S.
373; EASTERN STATES LUMBER ASSN. V. UNITED STATES, 234 U.S. 600;
FEDERAL TRADE COMM'N V. BEECH-NUT CO., 257 U.S. 44; UNITED STATES V.
TRENTON POTTERIES CO., 273 U.S. 392; INTERSTATE CIRCUIT V. UNITED
STATES, 306 U.S. 208. 

APPELLANT'S LICENSING SYSTEM MUST BE JUSTIFIED ON THE BASIS OF ITS
OWNERSHIP OF PATENTS.  HOWEVER, AN ANALYSIS OF APPELLANT'S BUSINESS
DEMONSTRATES THAT APPELLANT IS NOT ENTITLED TO ASSUME COMPLETE CONTROL
OVER THE MARKETING OF LEAD-TREATED GASOLINE THROUGH THE USE OF ITS
PATENTS.  APPELLANT'S BUSINESS IS THE MANUFACTURING OF THE PATENTED
FLUID WHICH IS USED IN THE PRODUCTION OF SUCH MOTOR FUEL.  WHEN IT
SELLS THE FLUID TO REFINERS IT RECEIVES ALL THE PECUNIARY REWARD WHICH
IT SEEKS FOR THE EXPLOITATION OF ITS PATENT RIGHTS.  HAVING THUS CHOSEN
TO OBTAIN THE REWARD FOR ITS INVENTION THROUGH THE MANUFACTURE AND SALE
OF THE FLUID, APPELLANT HAS NO RIGHT TO CONTROL THE MARKETING BY ITS
CUSTOMERS OF MOTOR FUEL CONTAINING THE FLUID.  ADAMS V. BURKE, 17
WALL.  453; HOBBIE V. JENNISON, 149 U.S. 355.  SEE ALSO KENDALL V.
WINSOR, 21 HOW.  322, 327-328; MOTION PICTURE CO. V. UNIVERSAL FILM
CO., 243 U.S. 502, 510-511; KEELER V. STANDARD FOLDING BED CO., 157
U.S. 659; BAUER V. O'DONNELL, 229 U.S. 1; STRAUS V. VICTOR TALKING
MACHINE CO., 243 U.S. 490; BOSTON STORE V. AMERICAN GRAPHOPHONE CO.,
246 U.S. 8.  CF., BOBBS-MERRILL CO. V. STRAUS, 210 U.S. 339; DR. MILES
MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373, 404-405. 

THE APPELLANT IS NOT ATTEMPTING TO OBTAIN ANY FINANCIAL RETURN FROM
THE MIXING AND USE PATENTS.  IT IS ATTEMPTING TO USE THEM SOLELY FOR
THE PURPOSE OF DOMINATING THE MARKETING OF LEAD-TREATED GASOLINE IN THE
UNITED STATES.  THIS IS AN IMPROPER USE OF THE PATENT PRIVILEGE.  THE
RULE IS WELL ESTABLISHED THAT A PATENTEE CAN NOT EXTEND HIS CONTROL
OVER SUBJECT MATTER WHICH LIES OUTSIDE OF THE PATENT PRIVILEGE BY
MERELY INCLUDING SUCH SUBJECT MATTER IN HIS PATENT CLAIMS.  MOTION
PICTURE CO. V. UNIVERSAL FILM CO., 234 U.S. 502; CARBICE CORP. V.
AMERICAN PATENTS CORP., 283 U.S. 27; LEITCH MFG. CO. V. BARBER CO., 302
U.S. 458; AMERICAN LECITHIN CO. V. WARFIELD CO., 105 F.2D 207; PHILAD
CO. V. LECHLER LABORATORIES, 107 F.2D 747. 

A PATENTEE IS ENTITLED ONLY TO IMPOSE SUCH RESTRICTIONS IN CONNECTION
WITH THE SALE OF A PATENTED ARTICLE AS ARE NORMALLY AND REASONABLY
ADAPTED TO SECURE PECUNIARY REWARD FOR THE PATENTEE'S MONOPOLY.  UNITED
STATES V. GENERAL ELECTRIC CO., 272 U.S. 476.  RESTRICTIONS IMPOSED
UNDER THIS RULE MUST BE TESTED BY AN OBJECTIVE STANDARD OF
REASONABLENESS.  GENERAL ELECTRIC CASE, SUPRA, 489, 490; KENDALL V.
WINSOR, 21 HOW.  322, 327-328; MOTION PICTURE CO. V. UNIVERSAL FILM
CO., 243 U.S. 502, 510-511. 

PROTECTION OF THE PUBLIC HEALTH IS NOT THE REAL REASON FOR THE
LICENSING SCHEME.  IT IS NOT TO BE ASSUMED THAT REFINERS AND JOBBERS
ARE NOT AS ZEALOUS TO PROTECT THE PUBLIC HEALTH AS IS APPELLANT OR THAT
THEY WOULD BEHAVE IN A RECKLESS OR IMPROPER MANNER IN THE ABSENCE OF
THE LICENSING SCHEME. 

THE LICENSING SYSTEM IS NOT NECESSARY TO PREVENT THE DILUTION,
ADULTERATION, AND DETERIORATION OF MOTOR FUEL CONTAINING THE FLUID. 
ETHYL GASOLINE CONSTITUTES ONLY ABOUT 6 PER CENT OF ALL LEAD-TREATED
MOTOR FUEL.  FURTHERMORE, THE PRODUCT WHICH APPELLANT FEARS MAY BE
ADULTERATED IS IN REALITY THE PRODUCT OF THE REFINERS.  THE LATTER HAVE
A DIRECT INTEREST IN MAINTAINING THE QUALITY OF THIS PRODUCT AND
APPELLANT'S INTEREST IS TOO REMOTE TO JUSTIFY ITS LICENSING SYSTEM. 
SEE, DR. MILES MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373, 407. 
THE PRIVILEGES FLOWING FROM THE OWNERSHIP OF THE TRADEMARK CAN BE NO
GREATER THAN THOSE COVERED BY APPELLANT'S PATENTS, AND CANNOT JUSTIFY
THE LICENSING SYSTEM.  COCA-COLA CO. V. BENNETT, 238 F. 513; COCA-COLA
CO. V. BUTLER & SONS, 229 F. 224; AND COCA-COLA CO.V. KOKE CO., 254
U.S. 143, DISTINGUISHED.  SEE MANUFACTURING CO. V. TRAINER, 101 U.S.
51; LAWRENCE MFG. CO. V. TENNESSEE MFG. CO., 138 U.S. 537; COLUMBIA
MILL CO. V. ALCORN, 150 U.S. 460; BOURJOIS & CO. V. KATZEL, 260 U.S.
689; DOVER STAMPING CO. V. FELLOWS, 40 N.E. 105.    THAT IT IS
NECESSARY FOR APPELLANT TO MAINTAIN RESALE PRICES OF MOTOR FUEL, CANNOT
JUSTIFY THE LICENSING SYSTEM, FOR THAT IS THE VERY THING WHICH MAKES
ITS SCHEME ILLEGAL.  UNITED STATES V. GENERAL ELECTRIC CORP., 272 U.S.
476, IS INAPPLICABLE BECAUSE APPELLANT DOES NOT MANUFACTURE THE PRODUCT
UPON WHICH IT SEEKS TO FIX THE PRICE. 

IN STRIKING DOWN THE ENTIRE JOBBER LICENSING SCHEME THE COURT BELOW
GRANTED PROPER AND EFFECTIVE RELIEF.  NO OTHER DECREE WOULD SUFFICE TO
ASSURE JOBBERS THAT THEY WERE COMPLETELY FREE OF DOMINATION AND FREE TO
ENGAGE IN THE COMPETITION WHICH IS PROTECTED BY THE ANTITRUST LAWS.  A
DECREE WHICH PERMITTED APPELLANT TO RETAIN THE LICENSING SYSTEM IN ANY
FORM WOULD INVITE ABUSES THROUGH SECRECY AND CONCEALMENT.  THE
GOVERNMENT SHOULD NOT BE REQUIRED CONTINUALLY TO POLICE A LICENSING
PLAN WHICH PRESENTS INHERENT OPPORTUNITIES FOR MISUSE.  LOCAL 167 V.
UNITED STATES, 291 U.S. 293, 299; GOMPERS V. BUCKS STOVE & RANGE CO.,
221 U.S. 418, 438-439; PURITY EXTRACT CO. V. LYNCH, 226 U.S. 192, 201. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE GOVERNMENT BROUGHT THIS SUIT IN THE DISTRICT COURT FOR SOUTHERN
NEW YORK, TO RESTRAIN APPELLANT, ETHYL GASOLINE CORPORATION, A DELAWARE
CORPORATION, AND THE OTHER APPELLANTS, WHO ARE ITS OFFICERS, FROM
GRANTING LICENSES, UNDER PATENTS CONTROLLED BY IT, TO JOBBERS TO SELL
AND DISTRIBUTE LEAD-TREATED MOTOR FUEL, AND FROM ENFORCING PROVISIONS
IN LICENSES TO OIL REFINERS WHICH RESTRICT THEIR SALE OF THE MOTOR FUEL
TO THE LICENSED JOBBERS, AS VIOLATIONS OF THE SHERMAN ANTI-TRUST ACT. 
26 STAT. 209, 15 U.S.C. SEC. 1, AS AMENDED AUGUST 17, 1937, 50 STAT.
693.  THE TRIAL COURT GRANTED THE RELIEF SOUGHT AND FROM ITS DECISION
IN FAVOR OF THE GOVERNMENT THE CASE COMES HERE ON DIRECT APPEAL UNDER
THE PROVISIONS OF SEC. 2 OF THE EXPEDITING ACT OF FEBRUARY 11, 1903, AS
AMENDED 36 STAT. 1167, 15 U.S.C. SEC. 29; SEC. 238 OF THE JUDICIAL
CODE, AS AMENDED 43 STAT. 938, 28 U.S.C. SEC. 345. 

THE CASE WAS TRIED ON AN AGREED STATEMENT OF FACTS WHICH WAS
INCORPORATED IN THE FINDINGS OF THE TRIAL COURT AND, EXCEPT AS NOTED,
THERE IS NO DISPUTE AS TO THE FACTS.  THE APPELLANT CORPORATION IS
ENGAGED IN THE MANUFACTURE AND SALE OF A PATENTED FLUID COMPOUND
CONTAINING TETRAETHYL LEAD, A POISONOUS SUBSTANCE, WHICH, WHEN ADDED TO
GASOLINE USED AS A MOTOR FUEL, INCREASES THE EFFICIENCY OF HIGH
PRESSURE COMBUSTION ENGINES IN WHICH THE FUEL IS CONSUMED.  THE ETHYL
CORPORATION OWNS TWO PATENTS COVERING THE COMPOSITION OF THE FLUID, NO.
1,592,954 OF JULY 20, 1926, AND NO. 1,668,022 OF MAY 1, 1928.  IT HAS A
THIRD PATENT, NO. 1,573,846 OF FEBRUARY 23, 1926, CLAIMING A MOTOR FUEL
PRODUCED BY MIXING GASOLINE WITH THE PATENT FLUID COMPOUND, WHICH IS
CLAIMED ALSO BY THE TWO PATENTS FIRST MENTIONED.  IT ALSO HAS A PATENT,
NO. 1,787,419, OF DECEMBER 30, 1930, CLAIMING A METHOD OF USING FUEL
CONTAINING THE PATENTED FLUID IN COMBUSTION MOTORS.  THE CORPORATION
MANUFACTURES AND SELLS THE PATENTED FLUID TO OIL REFINERS, SOLELY FOR
USE IN THE PRODUCTION OF THE IMPROVED TYPE OF MOTOR FUEL.  IT ISSUES
LICENSES UNDER ITS PATENTS TO REFINERS AND TO JOBBERS OF MOTOR FUEL ON
TERMS AND CONDITIONS PRESENTLY TO BE NOTED, BUT IT DOES NOT CHARGE OR
RECEIVE ANY ROYALTY FOR ITS LICENSES.  IT DERIVES ITS PROFIT SOLELY
FROM THE SALE OF THE PATENTED ETHYL FLUID TO ITS REFINER LICENSEES. 

THE LICENSING AGREEMENTS. 

APPELLANT GRANTS LICENSES UNDER ITS PATENTS TO MOST OF THE LARGE OIL
REFINING COMPANIES IN THE UNITED STATES, TO MANUFACTURE, SELL AND
DISTRIBUTE MOTOR FUEL CONTAINING THE PATENTED FLUID.  THE LICENSES
PROVIDE THAT APPELLANT WILL SELL TO THE LICENSEES THEIR REQUIREMENTS OF
THE PATENTED FLUID.  THEY PROHIBIT THE LICENSEES FROM SELLING THE
MANUFACTURED PRODUCT TO ANY EXCEPT TO OTHER LICENSED REFINERS, TO
JOBBERS LICENSED BY APPELLANT AND TO RETAIL DEALERS AND CONSUMERS. 
THEY REQUIRE THE LICENSED REFINERS TO MIX THE PATENTED FLUID WITH THE
GASOLINE AT THEIR REFINERIES WITH EQUIPMENT APPROVED BY APPELLANT AND
IN CONFORMITY TO REGULATIONS PROMULGATED BY THE SURGEON GENERAL OF THE
UNITED STATES AND ANY OTHER GOVERNMENTAL BODY HAVING JURISDICTION.  THE
REFINERS AGREE TO IMPOSE OBLIGATIONS ON ALL PURCHASERS TO CONFORM TO
SUCH HEALTH REGULATIONS AND TO REQUIRE THEM TO IMPOSE LIKE OBLIGATIONS
ON THOSE TO WHOM THEY SELL.  THE REFINERS AGREE, UPON NOTICE BY
APPELLANT, TO DISCONTINUE SALES TO OTHER REFINERS OR JOBBERS WHOSE
LICENSES APPELLANT HAS CANCELLED.  THE LICENSES ALSO PROVIDE FOR THE
MAXIMUM AMOUNT OF THE FLUID TO BE USED IN THE GASOLINE; AND THAT,
WITHIN THAT LIMIT, THE LICENSEES' REGULAR OR "BEST NON-PREMIUM"
GASOLINE SHALL HAVE A MAXIMUM OCTANE RATING OF 70  FN1  AND SHALL BE
SOLD AS THE NEXT HIGHEST PRICED MOTOR FUEL OF THE LICENSEE BELOW THE
LICENSEE'S ETHYL GASOLINE, WHICH SHALL HAVE A MINIMUM OCTANE RATING OF
76 AND SHALL BE SOLD AT A CERTAIN FIXED PRICE DIFFERENTIAL ABOVE THE
AVERAGE NET SALES PRICE OF THE LICENSEES' BEST NON-PREMIUM GRADE OF
COMMERCIAL GASOLINE.  THE LICENSES FURTHER PROVIDE THE CONDITIONS UNDER
WHICH THE NAME OF THE ETHYL CORPORATION AND ITS TRADEMARK OR TRADE
NAMES MAY BE USED IN CONNECTION WITH THE ADVERTISING AND SALE OF THE
PATENTED MOTOR FUEL.  FN2 

JOBBERS ARE GENERALLY REQUIRED BY APPELLANT TO APPLY FOR LICENSES
THROUGH THE REFINERS FROM WHOM THEY EXPECT TO PURCHASE THE MOTOR FUEL. 
THE LICENSES TO JOBBERS PURPORT TO GRANT THE RIGHT TO SELL AND DELIVER
TO RETAIL DEALERS AND CONSUMERS WITHIN A SPECIFIED TERRITORY REGULAR
AND ETHYL GASOLINE, MANUFACTURED AND SOLD BY A DESIGNATED LICENSED
REFINER.  FN3  THE LICENSED JOBBERS ARE REQUIRED TO FURNISH APPELLANT
MONTHLY WITH A LIST OF ALL PLACES AT WHICH THE MOTOR FUEL IS SOLD UNDER
THE LICENSES.  THEY AGREE TO COMPLY WITH HEALTH REGULATIONS RELATING TO
THE HANDLING OF THE MOTOR FUEL PROMULGATED BY THE SURGEON GENERAL OR
OTHER GOVERNMENTAL AGENCY; TO POST AND DISTRIBUTE ANY NOTICES
CONCERNING THE HANDLING OF SUCH FUEL AS REQUIRED BY THE APPELLANT; TO
PERMIT PHYSICAL EXAMINATION OF EMPLOYEES, AND TO REQUIRE CUSTOMERS
PURCHASING FOR RESALE TO ASSUME SIMILAR OBLIGATIONS.  ADULTERATION AND
DILUTION OF MOTOR FUEL DISTRIBUTED UNDER THE LICENSES IS PROHIBITED,
AND REQUIREMENTS SIMILAR TO THOSE CONTAINED IN REFINER LICENSES ARE
IMPOSED WITH RESPECT TO THE USE OF APPELLANT'S CORPORATE NAME AND TRADE
NAMES IN CONNECTION WITH THE ADVERTISING AND SALE OF THE MOTOR FUEL. 
APPELLANT IS GIVEN THE RIGHT TO CANCEL THE JOBBERS' LICENSES AT ANY
TIME FOR FAILURE TO COMPLY WITH THEIR TERMS, AND EITHER PARTY MAY
CANCEL, WITH OR WITHOUT CAUSE, ON THIRTY DAYS' WRITTEN NOTICE. 

EFFECT OF THE LICENSING AGREEMENTS ON THE OIL INDUSTRY. 

THE LICENSING SYSTEM ESTABLISHED BY APPELLANT AFFECTS AND CONTROLS
THE BUSINESS OF THE MAJOR PART OF THOSE ENGAGED IN MANUFACTURING AND
DISTRIBUTING MOTOR FUEL OIL IN THE UNITED STATES.  APPELLANT ISSUES
LICENSES TO 123 REFINERS, INCLUDING EVERY LEADING OIL COMPANY, EXCEPT
ONE, THE SUN OIL COMPANY, WHICH DOES NOT GENERALLY DO BUSINESS THROUGH
JOBBERS.  THEY REFINE 88% OF ALL GASOLINE SOLD IN THE UNITED STATES,
AND THE GASOLINE PROCESSED BY THEM UNDER THE LICENSE AGREEMENTS IS 70%
OF ALL THE GASOLINE THUS SOLD, AND 85% OF ALL GASOLINE PROCESSED TO
OBTAIN A HIGH OCTANE RATING. 

ANY JOBBER IN THE UNITED STATES DESIRING TO SELL LEAD-TREATED
GASOLINE MUST SECURE A LICENSE FROM THE ETHYL CORPORATION, REVOCABLE AT
ITS WILL, BEFORE IT CAN PROCURE THE GASOLINE FROM LICENSED REFINERS. 
OF THE 12,000 JOBBERS DOING BUSINESS IN THE UNITED STATES APPROXIMATELY
11,000 ARE LICENSED BY APPELLANT.  THE JOBBER MUST PROCURE A NEW
LICENSE ON CHANGING HIS SOURCE OF SUPPLY.  THE GREATER PART OF ALL
GASOLINE TREATED WITH THE PATENTED FLUID IS SOLD AND TRANSPORTED IN
INTERSTATE COMMERCE.  IT IS SOLD IN PART THROUGH WHOLESALE AND RETAIL
OUTLETS OWNED AND CONTROLLED BY THE REFINERS AND IN PART TO INDIVIDUAL
RETAILERS AND CONSUMERS.  A LARGE VOLUME AND A SUBSTANTIAL PART OF THE
WHOLE IS DISTRIBUTED THROUGH LICENSED JOBBERS TO WHOM IT IS DELIVERED
AT THEIR BULK STORAGE PLANTS THROUGH THE CHANNELS OF INTERSTATE
COMMERCE. 

BY THEIR TERMS, THE LICENSING AGREEMENTS SERVE TO EXCLUDE ALL
UNLICENSED JOBBERS FROM THE MARKET, AND IN THE PARTICULARS ALREADY
MENTIONED, AND IN OTHERS PRESENTLY TO BE DISCUSSED, THEY CONTROL THE
CONDUCT OF THE BUSINESS OF LICENSED JOBBERS IN THE DISTRIBUTION OF THE
PATENTED MOTOR FUEL AND ENABLE APPELLANT AT WILL TO EXCLUDE OTHERS FROM
THE BUSINESS.  THE REFINERS' LICENSES ALSO IN TERMS PLACE RESTRAINTS ON
THE SALES PRICE OF REFINERS BY ESTABLISHING THE PRESCRIBED DIFFERENTIAL
BETWEEN REGULAR AND ETHYL GASOLINE.  FROM THIS AND FROM THE OTHER
STIPULATED FACTS THE GOVERNMENT ARGUES THAT THE CONTROL ACQUIRED
THROUGH THE LICENSING AGREEMENTS OVER THE REFINERS AND JOBBERS HAS BEEN
USED BY APPELLANTS TO CONTROL THE BUSINESS PRACTICES OF THE JOBBERS AND
PARTICULARLY TO MAINTAIN RESALE PRICES OF THE PATENTED MOTOR FUEL IN
UNLAWFUL RESTRAINT OF INTERSTATE COMMERCE.  IN SUPPORT OF THIS
CONTENTION IT RELIES UPON THE LONG ESTABLISHED PRACTICE OF APPELLANT TO
REFUSE TO GRANT LICENSES TO JOBBERS WHO CUT PRICES OR REFUSE TO CONFORM
TO THE MARKETING POLICIES AND POSTED PRICES OF THE MAJOR REFINERIES OR
THE MARKET LEADERS AMONG THEM. 

DECISION BELOW AND CONTENTIONS OF APPELLANTS. 

THE TRIAL COURT CONCLUDED THAT IN VIEW OF THE INDEFINITE LANGUAGE OF
THE STIPULATION IT WAS PERHAPS A PERMISSIBLE, THOUGH NOT A NECESSARY,
CONCLUSION THAT AN AGREEMENT OR UNDERSTANDING FOR THE MAINTENANCE OF
PRICES EXISTED BETWEEN THE APPELLANT AND THE JOBBER LICENSEES.  BUT IT
CONSIDERED IT UNNECESSARY TO DECIDE THIS ISSUE, SINCE IT FOUND THAT THE
APPELLANT'S LICENSING PRACTICES AFFECTING THE JOBBERS, IN CONJUNCTION
WITH THE AGREEMENTS AND COOPERATION OF THE LICENSED REFINERS, HAD BEEN
USED BY APPELLANT AS THE MEANS OF EXCLUDING FROM THE MARKET THE
UNLICENSED JOBBERS WHO DO NOT CONFORM TO THE MARKET POLICIES AND POSTED
GASOLINE PRICES ADOPTED BY THE MAJOR OIL COMPANIES OR THE MARKET
LEADERS AMONG THEM, AND THAT APPELLANT USES THE CONTROL THUS
ESTABLISHED TO COERCE ADHERENCE TO THOSE POLICIES AND PRICES GENERALLY
BY THE LICENSED JOBBERS, AND THAT THIS RESTRICTION UPON THE INDUSTRY
EFFECTED THROUGH THE LICENSE CONTRACTS WITH REFINERS AND JOBBERS WAS
NOT WITHIN APPELLANT'S PATENT MONOPOLY, AND OPERATED UNREASONABLY TO
RESTRAIN INTERSTATE COMMERCE IN THE PROCESSED GASOLINE. 

IT CONCLUDED THAT THE LICENSING SYSTEM WAS NOT, AS APPELLANT ARGUES,
NECESSARY FOR THE PROTECTION OF SUCH LEGITIMATE INTERESTS AS THE
PATENTEE HAD IN THE PROTECTION OF THE QUALITY OF THE TREATED GASOLINE
SOLD UPON THE MARKET, AND ITS USE BY THE JOBBERS WITH SAFETY TO THE
PUBLIC HEALTH.  APPELLANTS WERE ACCORDINGLY ENJOINED FROM ENFORCING OR
ATTEMPTING TO ENFORCE, OR INCLUDING IN ANY SUBSEQUENT AGREEMENT,
PROVISIONS THAT REFINERS SHALL SELL LEAD-TREATED GASOLINE ONLY TO
LICENSED JOBBERS, AND FROM REQUIRING OR ATTEMPTING TO REQUIRE JOBBERS
TO SECURE LICENSES, AND FROM ENFORCING OR ATTEMPTING TO ENFORCE THE
PROVISIONS OF ANY OUTSTANDING JOBBER LICENSES.  THE DECREE ALSO
DECLARED THE JOBBER LICENSES ILLEGAL AND REQUIRED APPELLANT TO NOTIFY
THE JOBBERS THAT THE LICENSES HAVE BEEN CANCELLED. 

APPELLANT, INSISTING THAT IT DOES NOT USE THE JOBBERS' LICENSING
SYSTEM TO MAINTAIN PRICES, MAKES TWO PRINCIPAL ATTACKS ON THE DECREE. 
IT URGES THAT THE LICENSING OF THE REFINERS AND JOBBERS, THE RESTRAINTS
UPON THE SALE OF THE PATENTED FUEL BY THE REFINERS, AND THE
RESTRICTIONS PLACED UPON THE JOBBERS, ARE ALL REASONABLY NECESSARY FOR
THE COMMERCIAL DEVELOPMENT OF APPELLANT'S PATENTS AND FOR INSURING A
FINANCIAL RETURN FROM THEM, AND ARE THEREFORE WITHIN ITS PATENT
MONOPOLY.  IN ANY CASE, IT IS SAID THAT THE CONDITIONS ATTACHED TO THE
REFINERS' AND JOBBERS' LICENSES ARE APPROPRIATE AND REASONABLY ADAPTED
TO THE MAINTENANCE OF THE QUALITY OF THE PRODUCT AND FOR THE PROTECTION
OF THE PUBLIC IN ITS USE OF A PRODUCT CONTAINING A DANGEROUS POISON,
AND BOTH ARE ESSENTIAL TO THE MAINTENANCE OF THE MARKET FOR THE
PATENTED FUEL, ON WHICH THE MARKET FOR APPELLANT'S PATENTED FLUID
DEPENDS.  AND SINCE THE JOBBERS' LICENSES ARE A NECESSARY OR
APPROPRIATE MEANS OF PROTECTING THE INTERESTS OF APPELLANT AND THE
PUBLIC IN THE QUALITY AND SAFE USE OF THE PATENTED PRODUCT, IT IS
ARGUED THAT THE DECREE ABOLISHING THE WHOLE SYSTEM OF JOBBERS' LICENSES
WENT FURTHER THAN WAS NECESSARY OR PROPER TO PREVENT SUCH RESTRAINT AS
THERE MAY HAVE BEEN EXERTED ON THE JOBBERS WITH RESPECT TO PRICES AND
MARKETING POLICIES. 

RELATION OF THE LICENSING AGREEMENTS TO PRICE MAINTENANCE. 

FOR THE MOMENT WE MAY LAY TO ONE SIDE THE PARTICULAR RESTRICTIONS
ENUMERATED IN THE CONTRACTS OF THE REFINERS WITH JOBBERS, AND TURN TO
THE RELATION OF APPELLANT'S LICENSING POLICY TO THE MAINTENANCE OF
PRICE POLICIES BY THE JOBBERS.  WHILE THE TRIAL COURT FOUND NO CONTRACT
OR AGREEMENT WHICH PURPORTS TO PRESCRIBE RESALE PRICES OR TO EXACT ANY
PRICE POLICY OF THE JOBBERS, THE STIPULATION OF FACTS SHOWS THAT
APPELLANT, THROUGH ITS PATENTS, ITS CONTRACTS, AND ITS LICENSING
POLICY, HAS ACQUIRED THE POWER TO EXCLUDE AT WILL FROM PARTICIPATION IN
THE NATIONWIDE MARKET FOR LEAD-TREATED MOTOR FUEL ALL OF THE 12,000
MOTOR FUEL JOBBERS OF THE COUNTRY, BY REFUSING TO LICENSE ANY OF THE
1,000 UNLICENSED JOBBERS, OR BY CANCELLING, AS IT MAY AT WILL, THE
LICENSES OF ANY OF THE 11,000 LICENSED JOBBERS.  THIS WE ASSUME, FOR
PRESENT PURPOSES, IT COULD LAWFULLY DO BY VIRTUE OF THE POWER CONFERRED
BY ITS PATENT TO EXCLUDE ANY OR ALL OTHERS FROM SELLING THE PATENTED
PRODUCT.  BUT IT DOES NOT FOLLOW THAT IT CAN LAWFULLY EXERCISE THAT
POWER IN SUCH MANNER AS TO CONTROL THE PATENTED COMMODITY IN THE HANDS
OF THE LICENSED JOBBERS WHO HAD PURCHASED IT, OR THEIR ACTIONS WITH
RESPECT TO IT IN WAYS NOT WITHIN THE LIMITS OF THE PATENT MONOPOLY; AND
CONSPICUOUS AMONG SUCH CONTROLS WHICH THE SHERMAN LAW PROHIBITS AND THE
PATENT LAW DOES NOT SANCTION IS THE REGULATION OF PRICES AND THE
SUPPRESSION OF COMPETITION AMONG THE PURCHASERS OF THE PATENTED
ARTICLES.  THAT APPELLANT, BY THE PLAN AND SCOPE OF ITS LICENSING
POLICY, HAS ACQUIRED VAST POTENTIAL POWER TO ACCOMPLISH THAT END CANNOT
BE DOUBTED.  AND WE THINK THE RECORD SUPPORTS THE FINDING OF THE TRIAL
COURT THAT APPELLANT HAS EXERCISED THAT POWER CONTINUOUSLY FOR A
CONSIDERABLE PERIOD AS A MEANS OF CONTROL OVER THE PRICE POLICIES OF
THE LICENSED JOBBERS. 

FROM THE STIPULATION OF FACTS, IT APPEARS THAT SINCE 1929 APPELLANT
HAS PURSUED THE PRACTICE OF INVESTIGATING, THROUGH FIELD AGENTS, THE
"BUSINESS ETHICS" OF JOBBERS APPLYING FOR LICENSES, AND OF REJECTING
SUCH APPLICATIONS UPON THE ADVERSE REPORT OF THE AGENT.  APPELLANT
ADMITS THAT THE PHRASE "BUSINESS ETHICS" IS USED TO DENOTE COMPLIANCE
WITH "MARKETING POLICIES AND PREVAILING PRICES OF THE PETROLEUM
INDUSTRY," WHICH ARE THE "MARKETING POLICIES AND POSTED PRICES OF THE
MAJOR OIL COMPANIES OR THE MARKET LEADERS AMONG THEM."  AMONG THESE IS
THE STANDARD OIL COMPANY OF NEW JERSEY WHICH OWNS ONE-HALF OF THE
CAPITAL STOCK OF THE APPELLANT.  FN4  WHILE NOT ALL APPLICANTS WHO HAVE
FAILED TO MAINTAIN PRICES AND MARKETING POLICIES HAVE BEEN REJECTED,
THE RECORD LEAVES NO DOUBT THAT APPELLANT HAS MADE USE OF ITS DOMINANT
POSITION IN THE TRADE TO EXERCISE CONTROL OVER PRICES AND MARKETING
POLICIES OF JOBBERS IN A SUFFICIENT NUMBER OF CASES AND WITH SUFFICIENT
CONTINUITY TO MAKE ITS ATTITUDE TOWARD PRICE CUTTING A PERVASIVE
INFLUENCE IN THE JOBBING TRADE. 

IN MANY INSTANCES, ALTHOUGH NOT IN ALL, AN ADVERSE REPORT BY THE
INVESTIGATOR AS TO THE APPLICANT'S BUSINESS ETHICS HAS BEEN THE SOLE
GROUND FOR REJECTING HIS APPLICATION, AND APPELLANT ADMITS THAT THE
GREATER NUMBER OF APPLICATIONS FOR LICENSES WHICH HAVE BEEN DENIED WERE
REJECTED BECAUSE OF SUCH AN ADVERSE REPORT.  IN THE CASES IN WHICH
LICENSES HAVE BEEN REFUSED, SOMETHING LESS THAN ONE-HALF OF THE
REJECTED APPLICANTS WERE LATER GRANTED LICENSES ON THEIR ASSURANCE THAT
THEIR MARKETING PRACTICES WOULD BE CHANGED.  THE TOTAL NUMBER OF
REJECTIONS FOR FAILURE TO COMPLY WITH THAT STANDARD DOES NOT APPEAR,
FOR APPELLANT HAS FAILED TO KEEP ANY RECORD OF THE GROUND OF REJECTION
OF APPLICATIONS FOR LICENSES, ADMITTEDLY BECAUSE IT IS RELUCTANT TO
PRESERVE IN ITS RECORDS "THE EXTENT TO WHICH MAINTENANCE OF PRICES AND
MARKETING POLICIES BY JOBBERS ENTERED INTO THE GRANTING OF LICENSES." 

JOBBERS' LICENSES DO NOT APPEAR TO HAVE BEEN CANCELLED BECAUSE OF
FAILURES TO MAINTAIN POLICIES OR PRICES OF THE MAJOR OIL COMPANIES
WHENEVER THEY HAVE OCCURRED, BUT IT IS AN ESTABLISHED PRACTICE OF
APPELLANT TO INVESTIGATE THE BUSINESS ETHICS OF LICENSED JOBBERS IN
ORDER TO ASCERTAIN WHETHER THEY MAINTAIN THE MARKETING PRICES, POLICIES
AND PRACTICES PREVAILING OR OSTENSIBLY PREVAILING IN THE INDUSTRY. 
REPRESENTATIVES OF APPELLANT HAVE FROM TIME TO TIME, BUT NOT IN EVERY
CASE, REPORTED A JOBBER TO HIS SUPPLIER OR REFINER FOR NOT MAINTAINING
THE MARKETING POLICIES OF THE LATTER, AND IN SOME CASES THEY HAVE
UNITED IN PERSUADING THE JOBBER TO MEND HIS WAYS.  APPELLANT HAS
GENERALLY REQUIRED EACH LICENSED JOBBER TO PURCHASE ALL HIS TREATED
FUEL FROM A SINGLE REFINER AND IN SOME INSTANCES HAS REFUSED A LICENSE
TO JOBBERS WHO WISHED TO CHANGE THEIR SOURCE OF SUPPLY FROM ONE
LICENSED REFINER TO ANOTHER. 

THESE LONG-CONTINUED PRACTICES HAVE HAD THE EFFECT UPON THE INDUSTRY
NATURALLY TO BE EXPECTED.  LARGE NUMBERS OF REFINERS AND THE MAJORITY
OF JOBBERS BELIEVE THAT THE JOBBERS MUST MAINTAIN THE REQUIRED BUSINESS
ETHICS IN ORDER TO OBTAIN LICENSES, AND A NUMBER OF LICENSED JOBBERS
BELIEVE THAT THEY ARE REQUIRED BY APPELLANT'S LICENSING PRACTICES TO
MAINTAIN PRICES AND ABIDE BY THE MARKETING PRACTICES OF THE MAJOR OIL
COMPANIES.  APPELLANT, IN ITS PRINTED INSTRUCTIONS TO FIELD
REPRESENTATIVES AS TO THE MANNER OF CONDUCTING INVESTIGATIONS OF
LICENSED JOBBERS, AFTER POINTING OUT THAT ONE OF THE REASONS FOR THE
INVESTIGATION OF THE JOBBER BEFORE THE ISSUANCE OF THE LICENSE IS TO
INSURE THAT HE "WILL NOT RESORT TO UNETHICAL METHODS IN COMPETING WITH
OUR OTHER LICENSED JOBBERS AND REFINERS," AND AFTER DESCRIBING THE
METHODS OF CONDUCTING THE INVESTIGATION,  FN5 SUMS UP THE RESULT AS
FOLLOWS:  "WE HAVE, THROUGH THESE SUPPLEMENTAL INVESTIGATIONS, BEEN
ABLE TO CORRECT THE ETHYL PICTURE TO A CONSIDERABLE EXTENT, AND HAVE
SUCCEEDED IN ELIMINATING FROM OUR JOBBER LISTS SOME OF OUR FORMER
ACCOUNTS WHO WERE NOT A CREDIT TO US AS LICENSEES OF THE ETHYL GASOLINE
CORPORATION." 

SCOPE OF THE PATENT MONOPOLY. 

IT IS NOT DENIED, AND COULD NOT WELL BE, THAT IF APPELLANT'S
COMPREHENSIVE CONTROL OF THE MARKET IN THE DISTRIBUTION OF THE LEAD
TREATED GASOLINE, AS DISCLOSED BY THE RECORD, HAD BEEN ACQUIRED WITHOUT
AID OF THE PATENTS, BUT WHOLLY BY THE CONTRACTS WITH REFINERS AND
JOBBERS, SUCH CONTROL WOULD INVOLVE A VIOLATION OF THE SHERMAN ACT. 
PARAMOUNT FAMOUS CORP. V. UNITED STATES, 282 U.S. 30, 43; UNITED STATES
V. FIRST NATIONAL PICTURES, 282 U.S. 44.  CF. FREY & SON V. CUDAHY
PACKING CO., 256 U.S. 208; FEDERAL TRADE COMMISSION V. BEECH-NUT
PACKING CO., 257 U.S. 441.  AND SO WE TURN TO THE CONSIDERATION OF THE
PATENTS AND THE PATENT LAW TO ASCERTAIN WHETHER THE MONOPOLY WHICH THEY
HAVE GIVEN APPELLANT AFFORDS A LAWFUL BASIS FOR THE CONTROL OVER THE
MARKETING OF MOTOR FUEL WHICH THE RECORD DISCLOSES.  CF. UNITED STATES
V. GENERAL ELECTRIC CO., 272 U.S. 476.  IN CONSIDERING THAT QUESTION WE
ASSUME THE VALIDITY OF THE PATENTS, WHICH IS NOT QUESTIONED HERE. 

THE PATENT LAW CONFERS ON THE PATENTEE A LIMITED MONOPOLY, THE RIGHT
OR POWER TO EXCLUDE ALL OTHERS FROM MANUFACTURING, USING, OR SELLING
HIS INVENTION.  R.S. SEC. 4884, 35 U.S.C. SEC. 40.  THE EXTENT OF THAT
RIGHT IS LIMITED BY THE DEFINITION OF HIS INVENTION, AS ITS BOUNDARIES
ARE MARKED BY THE SPECIFICATIONS AND CLAIMS OF THE PATENT.  MOTION
PICTURE PATENTS CO. V. UNIVERSAL FILM CO., 243 U.S. 502, 510.  HE MAY
GRANT LICENSES TO MAKE, USE OR VEND, RESTRICTED IN POINT OF SPACE OR
TIME, OR WITH ANY OTHER RESTRICTION UPON THE EXERCISE OF THE GRANTED
PRIVILEGE, SAVE ONLY THAT BY ATTACHING A CONDITION TO HIS LICENSE HE
MAY NOT ENLARGE HIS MONOPOLY AND THUS ACQUIRE SOME OTHER WHICH THE
STATUTE AND THE PATENT TOGETHER DID NOT GIVE. 

HE MAY NOT, BY VIRTUE OF HIS PATENT, CONDITION HIS LICENSE SO AS TO
TIE TO THE USE OF THE PATENTED DEVICE OR PROCESS THE USE OF OTHER
DEVICES, PROCESSES OR MATERIALS WHICH LIE OUTSIDE OF THE MONOPOLY OF
THE PATENT LICENSED; MOTION PICTURE PATENTS CO. V. UNIVERSAL FILM MFG.
CO., SUPRA; CARBICE CORPORATION V. AMERICAN PATENTS CORP., 283 U.S. 27,
31; LEITCH MANUFACTURING CO. V. BARBER CO., 302 U.S. 458; CF. UNITED
SHOE MACHINERY CO. V. UNITED STATES, 258 U.S. 451, 462; INTERNATIONAL
BUSINESS MACHINES CORP. V. UNITED STATES, 298 U.S. 131, 140; OR
CONDITION THE LICENSE SO AS TO CONTROL CONDUCT BY THE LICENSEE NOT
EMBRACED IN THE PATENT MONOPOLY, STANDARD SANITARY MFG. CO. V. UNITED
STATES, 226 U.S. 20; INTERSTATE CIRCUIT V. UNITED STATES, 306 U.S. 208,
228-230; OR UPON THE MAINTENANCE OF RESALE PRICES BY THE PURCHASER OF
THE PATENTED ARTICLE.  ADAMS V. BURKE, 17 WALL.  453; BOBBS-MERRILL CO.
V. STRAUS, 210 U.S. 339; DR. MILES MEDICAL CO. V. JOHN D. PARK & SONS
CO., 220 U.S. 373; BAUER & CIE V. O'DONNELL, 229 U.S. 1; STRAUS V.
VICTOR TALKING MACHINE CO., 243 U.S. 490; BOSTON STORE V. AMERICAN
GRAPHOPHONE CO., 246 U.S. 8; CF. UNITED STATES V. GENERAL ELECTRIC CO.,
SUPRA, 485. 

APPELLANT, AS PATENTEE, POSSESSES EXCLUSIVE RIGHTS TO MAKE AND SELL
THE FLUID AND ALSO THE LEAD-TREATED MOTOR FUEL.  BY ITS SALES TO
REFINERS IT RELINQUISHES ITS EXCLUSIVE RIGHT TO USE THE PATENTED FLUID;
AND IT RELINQUISHES TO THE LICENSED JOBBERS ITS EXCLUSIVE RIGHTS TO
SELL THE LEAD-TREATED FUEL BY PERMITTING THE LICENSED REFINERS TO
MANUFACTURE AND SELL THE FUEL TO THEM.  AND BY THE AUTHORIZED SALES OF
THE FUEL BY REFINERS TO JOBBERS THE PATENT MONOPOLY OVER IT IS
EXHAUSTED, AND AFTER THE SALE NEITHER APPELLANT NOR THE REFINERS MAY
LONGER RELY ON THE PATENTS TO EXERCISE ANY CONTROL OVER THE PRICE AT
WHICH THE FUEL MAY BE RESOLD.  ADAMS V. BURKE, SUPRA; BOBBS-MERRILL CO.
V. STRAUS, SUPRA; BAUER & CIE V. O'DONNELL, SUPRA; MOTION PICTURE
PATENTS CO. V. UNIVERSAL FILM CO., SUPRA. 

THE PICTURE HERE REVEALED IS NOT THAT OF A PATENTEE EXERCISING ITS
RIGHT TO REFUSE TO SELL OR TO PERMIT HIS LICENSEE TO SELL THE PATENTED
PRODUCTS TO PRICE-CUTTERS.  COMPARE UNITED STATES V. COLGATE & CO., 250
U.S. 300 WITH UNITED STATES V. A. SCHRADER'S SON, 252 U.S. 85.  A VERY
DIFFERENT SCENE IS DEPICTED BY THE RECORD.  IT IS ONE IN WHICH
APPELLANT HAS ESTABLISHED THE MARKETING OF THE PATENTED FUEL IN VAST
AMOUNTS ON A NATIONWIDE SCALE THROUGH THE 11,000 JOBBERS AND AT THE
SAME TIME, BY THE LEVERAGE OF ITS LICENSING CONTRACTS RESTING ON THE
FULCRUM OF ITS PATENTS, IT HAS BUILT UP A COMBINATION CAPABLE OF USE,
AND ACTUALLY USED, AS A MEANS OF CONTROLLING JOBBERS' PRICES AND
SUPPRESSING COMPETITION AMONG THEM.  IT SEEMS PLAIN THAT THIS ATTEMPTED
REGULATION OF PRICES AND MARKET PRACTICES OF THE JOBBERS WITH RESPECT
TO THE FUEL PURCHASED, FOR WHICH APPELLANT COULD NOT LAWFULLY CONTRACT,
CANNOT BE LAWFULLY ACHIEVED BY ENTERING INTO CONTRACTS OR COMBINATIONS
THROUGH THE MANIPULATION OF WHICH THE SAME RESULTS ARE REACHED BY THE
EXERCISE OF THE POWER WHICH THEY GIVE TO CONTROL THE ACTION OF THE
PURCHASERS.  SUCH CONTRACTS OR COMBINATIONS WHICH ARE USED TO OBSTRUCT
THE FREE AND NATURAL FLOW IN THE CHANNELS OF INTERSTATE COMMERCE OF
TRADE EVEN IN A PATENTED ARTICLE, AFTER IT IS SOLD BY THE PATENTEE OR
HIS LICENSEE, ARE A VIOLATION OF THE SHERMAN ACT.  FEDERAL TRADE
COMMISSION V. BEECH-NUT CO., SUPRA, 453; UNITED SHOE MACHINERY CO. V.
UNITED STATES, SUPRA; VICTOR TALKING MACHINE CO. V. KEMENY, 271 F. 810,
817; CF. UNITED STATES V. A. SCHRADER'S SON, SUPRA.  AGREEMENTS FOR
PRICE MAINTENANCE OF ARTICLES MOVING IN INTERSTATE COMMERCE ARE,
WITHOUT MORE, UNREASONABLE RESTRAINTS WITHIN THE MEANING OF THE SHERMAN
ACT BECAUSE THEY ELIMINATE COMPETITION, UNITED STATES V. TRENTON
POTTERIES CO., 273 U.S. 392, AND AGREEMENTS WHICH CREATE POTENTIAL
POWER FOR SUCH PRICE MAINTENANCE EXHIBITED BY ITS ACTUAL EXERTION FOR
THAT PURPOSE ARE IN THEMSELVES UNLAWFUL RESTRAINTS WITHIN THE MEANING
OF THE SHERMAN ACT, WHICH IS NOT ONLY A PROHIBITION AGAINST THE
INFLICTION OF A PARTICULAR TYPE OF PUBLIC INJURY BUT "A LIMITATION OF
RIGHTS WHICH MAY BE PUSHED TO EVIL CONSEQUENCES AND THEREFORE
RESTRAINED."  STANDARD SANITARY MFG. CO. V. UNITED STATES, SUPRA, 49;
AMERICAN COLUMN CO. V. UNITED STATES, 257 U.S. 377, 400; UNITED STATES
V. AMERICAN LINSEED OIL CO., 262 U.S. 371; UNITED STATES V. TRENTON
POTTERIES CO., SUPRA, 397, 398. 

THE EXTENT TO WHICH APPELLANT'S DOMINION OVER THE JOBBERS' BUSINESS
GOES BEYOND ITS PATENT MONOPOLY, IS EMPHASIZED BY THE CIRCUMSTANCES
HERE PRESENT THAT THE PRICES AND MARKET PRACTICES SOUGHT TO BE
ESTABLISHED ARE NOT THOSE PRESCRIBED BY APPELLANT-PATENTEE, BUT BY THE
REFINERS.  APPELLANT NEITHER OWNS NOR SELLS THE PATENTED FUEL NOR
DERIVES ANY PROFIT THROUGH ROYALTIES OR OTHERWISE FROM ITS SALE.  IT
HAS CHOSEN TO EXPLOIT ITS PATENTS BY MANUFACTURING THE FLUID COVERED BY
THEM AND BY SELLING THAT FLUID TO REFINERS FOR USE IN THE MANUFACTURE
OF MOTOR FUEL.  SUCH BENEFITS AS RESULT FROM CONTROL OVER THE MARKETING
OF THE TREATED FUEL BY THE JOBBERS ACCRUE PRIMARILY TO THE REFINERS AND
INFIRECTLY TO APPELLANT, ONLY IN THE ENJOYMENT OF ITS MONOPOLY OF THE
FLUID SECURED UNDER ANOTHER PATENT.  THE LICENSING CONDITIONS ARE THUS
NOT USED AS A MEANS OF STIMULATING THE COMMERCIAL DEVELOPMENT AND
FINANCIAL RETURNS OF THE PATENTED INVENTION WHICH IS LICENSED, BUT FOR
THE COMMERCIAL DEVELOPMENT OF THE BUSINESS OF THE REFINERS AND THE
EXPLOITATION OF A SECOND PATENT MONOPOLY NOT EMBRACED IN THE FIRST. 
THE PATENT MONOPOLY OF ONE INVENTION MAY NO MORE BE ENLARGED FOR THE
EXPLOITATION OF A MONOPOLY OF ANOTHER, SEE STANDARD SANITARY MFG. CO.
V. UNITED STATES, SUPRA, THAN FOR THE EXPLOITATION OF AN UNPATENTED
ARTICLE, UNITED SHOE MACHINERY CO. V. UNITED STATES, SUPRA; CARBICE
CORPORATION V. AMERICAN PATENTS CORP., SUPRA; LEITCH MANUFACTURING CO.
V. BARBER CO., SUPRA; AMERICAN LECITHIN CO. V. WARFIELD CO., 105 F.2D
207, OR FOR THE EXPLOITATION OR PROMOTION OF A BUSINESS NOT EMBRACED
WITHIN THE PATENT.  INTERSTATE CIRCUIT V. UNITED STATES, SUPRA, 228
230. 

PROTECTION OF HEALTH AND QUALITY OF PRODUCT. 

THE TRIAL COURT WAS OF OPINION THAT SUCH INTEREST AS APPELLANT HAS IN
PROTECTING THE HEALTH OF THE PUBLIC IN CONNECTION WITH THE DISTRIBUTION
OF THE FUEL, AND IN PREVENTING ADULTERATION, DETERIORATION AND DILUTION
OF THE MOTOR FUEL IN THE HANDS OF THE JOBBERS MAY BE ADEQUATELY
PROTECTED WITHOUT RESORT TO THE JOBBER LICENSE DEVICE WHICH HAS BEEN
AND IS CAPABLE OF BEING USED FOR OTHER AND ILLICIT PURPOSES.  COMPARE
INTERNATIONAL BUSINESS MACHINES CORP. V. UNITED STATES, SUPRA, 139,
140.  THIS CONCLUSION IS, WE THINK, AMPLY SUPPORTED BY THE RECORD.  THE
PRECAUTIONS TAKEN TO PROTECT THE PUBLIC HEALTH IN THE HANDLING OF THE
MOTOR FUEL BY JOBBERS AND SERVICE STATIONS INCLUDE THE HEALTH
RESTRICTIONS IMPOSED ON JOBBERS BY THE REFINERS INCLUDED IN THEIR
CONTRACTS WITH JOBBERS, INSPECTIONS, MORE OR LESS PERFUNCTORY, BY
REPRESENTATIVES OF APPELLANT, AND THE POSTING BY JOBBERS AND
DISTRIBUTORS OF NOTICES SUPPLIED BY APPELLANT STATING THAT THE FUEL
CONTAINS LEAD AND IS FOR USE AS A MOTOR FUEL ONLY.  THESE ACTIVITIES
ARE NOT INTERFERED WITH BY THE DECREE.    THERE IS NO AUTHENTIC
INSTANCE OF INJURY RESULTING FROM THE HANDLING OF LEAD-TREATED
GASOLINE, AFTER ITS MANUFACTURE, ATTRIBUTABLE TO ITS LEAD CONTENT. 
EXTENSIVE EXPERT STUDY, CARRIED ON UNDER DIRECTION OF APPELLANT OVER A
PERIOD OF YEARS, DETAILED IN THE RECORD, RESULTED IN A REPORT THAT THE
RISK ARISING FROM THE ABSORPTION OF LEAD THROUGH THE SKIN IN THE
HANDLING OF THE LEAD-TREATED FUEL IS SO SMALL AS TO BE NEGLIGIBLE, AND
THAT THE USE OF THE FUEL MADE IN CONFORMITY TO THE REFINERS' LICENSES
HAS NOT CAUSED OR PRODUCED ANY DANGERS OR HAZARDS TO HEALTH. 

THE AVOIDANCE OF SUCH DANGERS AS THERE MAY BE IN THE HANDLING OF THE
MOTOR FUEL BY JOBBERS AND DISTRIBUTORS IS PLAINLY NOT BEYOND CONTROL BY
PUBLIC HEALTH REGULATIONS, AND WOULD SEEM, AS THE DISTRICT COURT
THOUGHT, TO BE AMPLY SECURED, IN ANY CASE, THROUGH THE SELF-INTEREST OF
THE REFINERS IN REQUIRING THE PURCHASERS OF THEIR GASOLINE TO TAKE
PROPER HEALTH PRECAUTIONS INCLUDING THE POSTING OF NOTICES WHICH
APPELLANT SUPPLIES AND BY THE CONTINUANCE OF APPELLANT'S INSPECTION,
ALL OF WHICH ARE PERMISSIBLE UNDER THE DECREE.  IT IS LIKEWISE APPARENT
THAT THE INTEREST THE APPELLANT HAS IN PREVENTING DILUTION,
ADULTERATION AND DETERIORATION OF THE TREATED GASOLINE IN THE HANDS OF
THE JOBBERS MAY BE SIMILARLY PROTECTED WITHOUT CONTINUED RESORT TO
JOBBER LICENSES, WHICH IS PRECLUDED BY REASON OF THEIR USE AND THE
DANGER OF THEIR CONTINUED USE FOR OTHER AND ILLEGAL PURPOSES. 

SINCE THE UNLAWFUL CONTROL OVER THE JOBBERS WAS ESTABLISHED AND
MAINTAINED BY RESORT TO THE LICENSING DEVICE, THE DECREE RIGHTLY
SUPPRESSED IT EVEN THOUGH IT HAD BEEN OR MIGHT CONTINUE TO BE USED FOR
SOME LAWFUL PURPOSES.  THE COURT WAS BOUND TO FRAME ITS DECREE SO AS TO
SUPPRESS THE UNLAWFUL PRACTICES AND TO TAKE SUCH REASONABLE MEASURES AS
WOULD PRECLUDE THEIR REVIVAL.  LOCAL 167 V. UNITED STATES, 291 U.S.
293; WARNER & CO. V. LILLY & CO., 265 U.S. 526, 532.  IT COULD, IN THE
EXERCISE OF ITS DISCRETION, CONSIDER WHETHER THAT COULD BE ACCOMPLISHED
EFFECTIVELY WITHOUT DISESTABLISHING THE LICENSING SYSTEM, AND WHETHER
THERE WERE COUNTERVAILING REASONS FOR CONTINUING IT AS A NECESSARY OR
PROPER MEANS FOR APPELLANT TO CARRY OUT OTHER LAWFUL PURPOSES.  SINCE
THE COURT RIGHTLY CONCLUDED THAT THESE REASONS WERE WITHOUT SUBSTANTIAL
WEIGHT, IT PROPERLY SUPPRESSED THE MEANS BY WHICH THE UNLAWFUL
RESTRAINT WAS ACHIEVED.  LOCAL 167 V. UNITED STATES, SUPRA, 299, 300;
CF. MERCHANTS WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501, 513. 
AFFIRMED. 

FN1  THE UTILITY OF LEAD-TREATED GASOLINE FOR USE IN HIGH COMPRESSION
ENGINES IS EXPRESSED IN TERMS OF OCTANE NUMBERS, AN ARBITRARY SCALE OF
MEASUREMENT INDICATING THE RELATIVE DEGREE OF COMPRESSION TO WHICH THE
FUEL MAY BE SUBJECTED WITHOUT CAUSING "KNOCK" IN THE ENGINE, WHICH IS
PREVENTED OR REDUCED BY THE USE OF THE FUEL.  THE OCTANE RATING OF
MOTOR FUEL INCREASES WITH THE AMOUNT OF THE PATENTED FLUID ADDED TO THE
GASOLINE WHICH, IN ANY CASE, IS SMALL.  APPELLANT'S LICENSES TO
REFINERS AUTHORIZE THE MANUFACTURE OF GASOLINE OF HIGH OCTANE RATING,
68 OR MORE, OF TWO CLASSES, "REGULAR," IN WHICH THERE IS ONE PART OF
TETRAETHYL LEAD TO 4200 PARTS OF GASOLINE, AND "ETHYL GASOLINE," IN
WHICH THERE IS ONE PART OF TETRAETHYL LEAD TO 1700 PARTS OF GASOLINE. 

FN2  THE NAME OF THE ETHYL CORPORATION AND ITS TRADEMARK OR TRADE
NAMES "ETHYL" AND "Q" MAY NOT BE USED IN CONNECTION WITH THE
ADVERTISING AND SALE OF REGULAR GASOLINE.  ALL THE LICENSEES, WITH THE
EXCEPTION OF THE STANDARD OIL COMPANY OF NEW JERSEY, WHICH MARKETS THE
PRODUCT UNDER THE NAME "ESSO," ARE REQUIRED TO USED THE WORD "ETHYL" IN
CONNECTION WITH THE SALE AND DISTRIBUTION OF THE ETHYL GASOLINE. 

FN3  THE ONLY OBLIGATION WHICH THE LICENSOR ASSUMES TOWARD THE
JOBBERS IS TO DEFEND THEM AGAINST PATENT AND TRADEMARK INFRINGEMENT
SUITS. 

FN4  THE REMAINDER IS OWNED BY GENERAL MOTORS CORPORATION AND E.I. DU
PONT DE NEMOURS COMPANY. 

FN5  THE INVESTIGATOR IS REMINDED IN THE FIELD REPRESENTATIVE MANUAL
THAT THE QUESTION AS TO "BUSINESS ETHICS" "CAN BE ANSWERED ONLY IF THE
FIELD REPRESENTATIVE HAS OBTAINED SUFFICIENT INFORMATION TO BE SURE OF
HIS OPINION."  "ETHICS OF THE JOBBER IS BASED ON THE TERRITORY IN WHICH
HE IS MARKETING AND THE CONDITIONS SURROUNDING THE SALE OF GASOLINE BY
OTHER ETHYL GASOLINE DISTRIBUTORS.  CARE SHOULD BE TAKEN, IF POSSIBLE,
TO FIND OUT THE INSTIGATOR OF ANY PRACTICES WHICH TEND TO UNFAIR
COMPETITION.  BUSINESS ETHICS IS A RELATIVE QUALITY AND NO HARD AND
FAST RULE CAN BE GIVEN TO GOVERN ALL CASES.  INFORMATION GIVEN TO FIELD
REPRESENTATIVES AND PICKED UP IN THE VARIOUS CONTACTS SHOULD BE WEIGHED
CAREFULLY BEFORE A FINAL DECISION IS REACHED.  ONE OF THE THREE WORDS,
'GOOD,' 'QUESTIONABLE,' OR 'UNETHICAL' IS TO BE USED IN ANSWERING THIS
QUESTION." 

IN JANUARY, 1935 THE QUESTION AS TO "BUSINESS ETHICS" WAS ELIMINATED
FROM THE FORM REPORT OF FIELD AGENTS.  BUT BUSINESS ETHICS HAS SINCE
CONTINUED TO BE ONE OF THE PRINCIPAL SUBJECTS OF INVESTIGATION AND, AS
BEFORE, THE RESULT OF THE FIELD AGENT'S INVESTIGATION HAS BEEN INCLUDED
IN HIS REPORT AND HIS RECOMMENDATIONS HAVE BEEN GENERALLY ACCEPTED AND
ACTED UPON BY HIS SUPERIORS. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :



HELVERING V. BRUUN, 309 U.S. 461 


NO. 479.  ARGUED FEBRUARY 28, 1940.  - DECIDED MARCH 25, 1940.  - 105
F.2D 442, REVERSED. 


1.  WHERE, UPON TERMINATION OF A LEASE, THE LESSOR REPOSSESSED THE
REAL ESTATE AND IMPROVEMENTS, INCLUDING A NEW BUILDING ERECTED BY THE
LESSEE, AN INCREASE IN VALUE ATTRIBUTABLE TO THE NEW BUILDING WAS
TAXABLE UNDER THE REVENUE ACT OF 1932 AS INCOME OF THE LESSOR IN THE
YEAR OF REPOSSESSION.  P. 467. 

2.  HEWITT REALTY CO. V. COMMISSIONER, 76 F.2D 880, AND DECISIONS OF
THIS COURT DEALING WITH THE TAXABILITY VEL NON OF STOCK DIVIDENDS,
DISTINGUISHED.  P. 468. 

3.  EVEN THOUGH THE GAIN IN QUESTION BE REGARDED AS INSEPARABLE FROM
THE CAPITAL, IT IS WITHIN THE DEFINITION OF GROSS INCOME IN SEC. 22(A)
OF THE REVENUE ACT OF 1932; AND, UNDER THE SIXTEENTH AMENDMENT, MAY BE
TAXED WITHOUT APPORTIONMENT AMONGST THE STATES.  P. 468. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. BRUUN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 308 U.S. 544, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS OVERRULING THE COMMISSIONER'S DETERMINATION OF
A DEFICIENCY IN INCOME TAX. 

THAT GAIN FROM CAPITAL BE TAXABLE AS INCOME, IT IS ESSENTIAL THAT
THERE BE A GROWTH OR INCREMENT OF VALUE WHICH IS SEPARABLE FROM THE
CAPITAL AND AVAILABLE FOR THE OWNER'S BENEFIT AND DISPOSAL.  EISNER V.
MACOMBER, 252 U.S. 189, 207; UNITED STATES V. PHELLIS, 257 U.S. 156,
168-169; MERCHANTS LOAN & TRUST CO. V. SMIETANKA, 255 U.S. 509, 519
520; TAFT V. BOWERS, 278 U.S. 470, 482; UNITED STATES V. SAFETY CAR
HEATING & L. CO., 297 U.S. 88, 99.  IT MUST BE CASH OR READILY
REDUCIBLE TO CASH.  BURNET V. LOGAN, 283 U.S. 404, 413-414;
COMMISSIONER V. WOOD, 107 F.2D 390, 395; CHAMPLIN V. COMMISSIONER, 71
F.2D 23, 29; SCHOENHEIT V. LUCAS, 44 F.2D 476, 479-480; MOUNT V.
COMMISSIONER, 48 F.2D 550, 552; BOURN V. MCLAUGHLIN, 19 F.2D 148, 150. 
OTHERWISE, A CAPITAL TAX AND NOT AN INCOME TAX RESULTS.  KOSHLAND V.
HELVERING, 298 U.S. 441, 445-446; GOODRICH V. EDWARDS, 255 U.S. 527,
535. 

A BUILDING ERECTED UPON THE PREMISES BY THE LESSEE ATTACHES TO AND
BECOMES A PART OF THE REALTY EITHER AT THE TIME OF ITS ERECTION,
HOLTGREVE V. SOBOLEWSKI, 326 MO. 412, 422; SEE, HAVENS V. FIRE INS.
CO., 123 MO. 403, 419; CLIMER V. WALLACE, 28 MO. 556-559, OR UPON
TERMINATION OF THE LEASE, SHELTON V. JONES, 66 OKLA. 83; HUGHES V.
KERSHOW, 42 COLO. 210.  IT IS SIMPLY AN INCREMENT OF VALUE IN THE
PROPERTY, NOT UNLIKE THE RESULT OF A GOOD BARGAIN, AND DOES NOT
CONSTITUTE TAXABLE INCOME.  PALMER V. COMMISSIONER, 305 U.S. 63, 68-69;
ROSE V. TRUST CO., 28 F.2D 767, 776, 778; COMMISSIONER V. VANVORST, 59
F.2D 677, 680; TAPLIN V. COMMISSIONER, 41 F.2D 454; ROSSHEIM V.
COMMISSIONER, 92 F.2D 247, 249; OMAHA NATIONAL BANK V. COMMISSIONER, 75
F.2D 434, 436; EVERHART V. COMMISSIONER, 26 B.T.A. 318; GEESEMAN V.
COMMISSIONER, 38 B.T.A. 258, 264, ACQUIESCED IN BY THE COMMISSIONER,
C.B. 1939-1, P. 13. 

THESE PRINCIPLES HAVE OFTEN BEEN ACCEPTED AND APPLIED ADVERSELY TO
THE GOVERNMENT'S CONTENTION.  M.E. BLATT CO. V. UNITED STATES, 305 U.S.
267; COMMISSIONER V. CENTER INVESTMENT CO., 108 F.2D 190; COMMISSIONER
V. WOOD, 107 F.2D 869; HELVERING V. BRUUN, 105 F.2D 442; NICHOLAS V.
FIFTEENTH STREET INVESTMENT CO., 105 F.2D 289; DOMINICK V. UNITED
STATES, 24 F.SUPP.  829; ENGLISH V. BITGOOD, 21 F.SUPP.  641; STAPLES
V. UNITED STATES, 21 F.SUPP.  737; HILGENBERG V. UNITED STATES, 21
F.SUPP.  453; HEWITT REALTY CO. V. COMMISSIONER, 76 F.2D 880; CRYAN V.
WARDELL, 263 F. 248; MILLER V. GEARIN, 258 F. 225.  CONTRA, THE COURT
OF CLAIMS IN M.E. BLATT CO. V. UNITED STATES, 23 F.SUPP.  461, AND THE
DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY IN KENTUCKY BLOCK
COAL CO. V. LUCAS, 4 F.SUPP.  266, BOTH OF WHICH WERE OVERRULED BY THIS
COURT IN M.E. BLATT CO. V. UNITED STATES, SUPRA. 

THE BOARD OF TAX APPEALS HAS ALSO CONSISTENTLY HELD LIKEWISE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE CONTROVERSY HAD ITS ORIGIN IN THE PETITIONER'S ASSERTION THAT THE
RESPONDENT REALIZED TAXABLE GAIN FROM THE FORFEITURE OF A LEASEHOLD,
THE TENANT HAVING ERECTED A NEW BUILDING UPON THE PREMISES.  THE COURT
BELOW HELD THAT NO INCOME HAD BEEN REALIZED.  FN1  INCONSISTENCY OF THE
DECISIONS ON THE SUBJECT LED US TO GRANT CERTIORARI. 

THE BOARD OF TAX APPEALS MADE NO INDEPENDENT FINDINGS.  THE CAUSE WAS
SUBMITTED UPON A STIPULATION OF FACTS.  FROM THIS IT APPEARS THAT ON
JULY 1, 1915, THE RESPONDENT, AS OWNER, LEASED A LOT OF LAND AND THE
BUILDING THEREON FOR A TERM OF NINETY-NINE YEARS. 

THE LEASE PROVIDED THAT THE LESSEE MIGHT, AT ANY TIME, UPON GIVING
BOND TO SECURE RENTALS ACCRUING IN THE TWO ENSUING YEARS, REMOVE OR
TEAR DOWN ANY BUILDING ON THE LAND, PROVIDED THAT NO BUILDING SHOULD BE
REMOVED OR TORN DOWN AFTER THE LEASE BECAME FORFEITED, OR DURING THE
LAST THREE AND ONE-HALF YEARS OF THE TERM.  THE LESSEE WAS TO SURRENDER
THE LAND, UPON TERMINATION OF THE LEASE, WITH ALL BUILDINGS AND
IMPROVEMENTS THEREON. 

IN 1929 THE TENANT DEMOLISHED AND REMOVED THE EXISTING BUILDING AND
CONSTRUCTED A NEW ONE WHICH HAD A USEFUL LIFE OF NOT MORE THAN FIFTY
YEARS.  JULY 1, 1933, THE LEASE WAS CANCELLED FOR DEFAULT IN PAYMENT OF
RENT AND TAXES AND THE RESPONDENT REGAINED POSSESSION OF THE LAND AND
BUILDING. 

THE PARTIES STIPULATED "THAT AS AT SAID DATE, JULY 1, 1933, THE
BUILDING WHICH HAD BEEN ERECTED UPON SAID PREMISES BY THE LESSEE HAD A
FAIR MARKET VALUE OF $64,245.68 AND THAT THE UNAMORTIZED COST OF THE
OLD BUILDING, WHICH WAS REMOVED FROM THE PREMISES IN 1929 TO MAKE WAY
FOR THE NEW BUILDING, WAS $12,811.43, THUS LEAVING A NET FAIR MARKET
VALUE AS AT JULY 1, 1933, OF $51,434.25, FOR THE AFORESAID NEW BUILDING
ERECTED UPON THE PREMISES BY THE LESSEE." 

ON THE BASIS OF THESE FACTS, THE PETITIONER DETERMINED THAT IN 1933
THE RESPONDENT REALIZED A NET GAIN OF $51,434.25.  THE BOARD OVERRULED
HIS DETERMINATION AND THE CIRCUIT COURT OF APPEALS AFFIRMED THE BOARD'S
DECISION. 

THE COURSE OF ADMINISTRATIVE PRACTICE AND JUDICIAL DECISION IN
RESPECT OF THE QUESTION PRESENTED HAS NOT BEEN UNIFORM.  IN 1917 THE
TREASURY RULED THAT THE ADJUSTED VALUE OF IMPROVEMENTS INSTALLED UPON
LEASED PREMISES IS INCOME TO THE LESSOR UPON THE TERMINATION OF THE
LEASE.  FN2 THE RULING WAS INCORPORATED IN TWO SUCCEEDING EDITIONS OF
THE TREASURY REGULATIONS.  FN3  IN 1919 THE CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT HELD IN MILLER V. GEARIN, 258 F. 225, THAT THE
REGULATION WAS INVALID AS THE GAIN, IF TAXABLE AT ALL, MUST BE TAXED AS
OF THE YEAR WHEN THE IMPROVEMENTS WERE COMPLETED.  FN4 

THE REGULATIONS WERE ACCORDINGLY AMENDED TO IMPOSE A TAX UPON THE
GAIN IN THE YEAR OF COMPLETION OF THE IMPROVEMENTS, MEASURED BY THEIR
ANTICIPATED VALUE AT THE TERMINATION OF THE LEASE AND DISCOUNTED FOR
THE DURATION OF THE LEASE.  SUBSEQUENTLY THE REGULATIONS PERMITTED THE
LESSOR TO SPREAD THE DEPRECIATED VALUE OF THE IMPROVEMENTS OVER THE
REMAINING LIFE OF THE LEASE, REPORTING AN ALIQUOT PART EACH YEAR, WITH
PROVISION THAT, UPON PREMATURE TERMINATION, A TAX SHOULD BE IMPOSED
UPON THE EXCESS OF THE THEN VALUE OF THE IMPROVEMENTS OVER THE AMOUNT
THERETOFORE RETURNED.  FN5 

IN 1935 THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT DECIDED
IN HEWITT REALTY CO. V. COMMISSIONER, 76 F.2D 880, THAT A LANDLORD
RECEIVED NO TAXABLE INCOME IN A YEAR, DURING THE TERM OF THE LEASE, IN
WHICH HIS TENANT ERECTED A BUILDING ON THE LEASED LAND.  THE COURT,
WHILE RECOGNIZING THAT THE LESSOR NEED NOT RECEIVE MONEY TO BE TAXABLE,
BASED ITS DECISION THAT NO TAXABLE GAIN WAS REALIZED IN THAT CASE ON
THE FACT THAT THE IMPROVEMENT WAS NOT PORTABLE OR DETACHABLE FROM THE
LAND, AND IF REMOVED WOULD BE WORTHLESS EXCEPT AS BRICKS, IRON, AND
MORTAR.  IT SAID (P. 884):  "THE QUESTION AS WE VIEW IT IS WHETHER THE
VALUE RECEIVED IS EMBODIED IN SOMETHING SEPARATELY DISPOSABLE, OR
WHETHER IT IS SO MERGED IN THE LAND AS TO BECOME FINANCIALLY A PART OF
IT, SOMETHING WHICH, THOUGH IT INCREASES ITS VALUE, HAS NO VALUE OF ITS
OWN WHEN TORN AWAY." 

THIS DECISION INVALIDATED THE REGULATIONS THEN IN FORCE.  FN6 

IN 1938 THIS COURT DECIDED M.E. BLATT CO. V. UNITED STATES, 305 U.S.
267.  THERE, IN CONNECTION WITH THE EXECUTION OF A LEASE, LANDLORD AND
TENANT MUTUALLY AGREED THAT EACH SHOULD MAKE CERTAIN IMPROVEMENTS TO
THE DEMISED PREMISES AND THAT THOSE MADE BY THE TENANT SHOULD BECOME
AND REMAIN THE PROPERTY OF THE LANDLORD.  THE COMMISSIONER VALUED THE
IMPROVEMENTS AS OF THE DATE THEY WERE MADE, ALLOWED DEPRECIATION
THEREON TO THE TERMINATION OF THE LEASEHOLD, DIVIDED THE DEPRECIATED
VALUE BY THE NUMBER OF YEARS THE LEASE HAD TO RUN, AND FOUND THE
LANDLORD TAXABLE FOR EACH YEAR'S ALIQUOT PORTION THEREOF.  HIS ACTION
WAS SUSTAINED BY THE COURT OF CLAIMS.  THE JUDGMENT WAS REVERSED ON THE
GROUND THAT THE ADDED VALUE COULD NOT BE CONSIDERED RENTAL ACCRUING
OVER THE PERIOD OF THE LEASE; THAT THE FACTS FOUND BY THE COURT OF
CLAIMS DID NOT SUPPORT THE CONCLUSION OF THE COMMISSIONER AS TO THE
VALUE TO BE ATTRIBUTED TO THE IMPROVEMENTS AFTER A USE THROUGHOUT THE
TERM OF THE LEASE; AND THAT, IN THE CIRCUMSTANCES DISCLOSED, ANY
ENHANCEMENT IN THE VALUE OF THE REALTY IN THE TAX YEAR WAS NOT INCOME
REALIZED BY THE LESSOR WITHIN THE REVENUE ACT. 

THE CIRCUMSTANCES OF THE INSTANT CASE DIFFERENTIATE IT FROM THE BLATT
AND HEWITT CASES; BUT THE PETITIONER'S CONTENTION THAT GAIN WAS
REALIZED WHEN THE RESPONDENT, THROUGH FORFEITURE OF THE LEASE, OBTAINED
UNTRAMMELED TITLE, POSSESSION AND CONTROL OF THE PREMISES, WITH THE
ADDED INCREMENT OF VALUE ADDED BY THE NEW BUILDING, RUNS COUNTER TO THE
DECISION IN THE MILLER CASE AND TO THE REASONING IN THE HEWITT CASE. 

THE RESPONDENT INSISTS THAT THE REALTY,  - A CAPITAL ASSET AT THE
DATE OF THE EXECUTION OF THE LEASE,  - REMAINED SUCH THROUGHOUT THE
TERM AND AFTER ITS EXPIRATION; THAT IMPROVEMENTS AFFIXED TO THE SOIL
BECAME PART OF THE REALTY INDISTINGUISHABLY BLENDED IN THE CAPITAL
ASSET; THAT SUCH IMPROVEMENTS CANNOT BE SEPARATELY VALUED OR TREATED AS
RECEIVED IN EXCHANGE FOR THE IMPROVEMENTS WHICH WERE ON THE LAND AT THE
DATE OF THE EXECUTION OF THE LEASE; THAT THEY ARE, THEREFORE, IN THE
SAME CATEGORY AS IMPROVEMENTS ADDED BY THE RESPONDENT TO HIS LAND, OR
ACCRUALS OF VALUE DUE TO EXTRANEOUS AND ADVENTITIOUS CIRCUMSTANCES. 
SUCH ADDED VALUE, IT IS ARGUED, CAN BE CONSIDERED CAPITAL GAIN ONLY
UPON THE OWNER'S DISPOSITION OF THE ASSET.  THE POSITION IS THAT THE
ECONOMIC GAIN CONSEQUENT UPON THE ENHANCED VALUE OF THE RECAPTURED
ASSET IS NOT GAIN DERIVED FROM CAPITAL OR REALIZED WITHIN THE MEANING
OF THE SIXTEENTH AMENDMENT AND MAY NOT, THEREFORE, BE TAXED WITHOUT
APPORTIONMENT. 

WE HOLD THAT THE PETITIONER WAS RIGHT IN ASSESSING THE GAIN AS
REALIZED IN 1933. 

WE MIGHT REST OUR DECISION UPON THE NARROW ISSUE PRESENTED BY THE
TERMS OF THE STIPULATION.  IT DOES NOT APPEAR WHAT KIND OF A BUILDING
WAS ERECTED BY THE TENANT OR WHETHER THE BUILDING WAS READILY REMOVABLE
FROM THE LAND.  IT IS NOT STATED WHETHER THE DIFFERENCE IN THE VALUE
BETWEEN THE BUILDING REMOVED AND THAT ERECTED IN ITS PLACE ACCURATELY
REFLECTS AN INCREASE IN THE VALUE OF LAND AND BUILDING CONSIDERED AS A
SINGLE ESTATE IN LAND.  ON THE FACTS STIPULATED, WITHOUT MORE, WE
SHOULD NOT BE WARRANTED IN HOLDING THAT THE PRESUMPTION OF THE
CORRECTNESS OF THE COMMISSIONER'S DETERMINATION HAS BEEN OVERBORNE. 

THE RESPONDENT INSISTS, HOWEVER, THAT THE STIPULATION WAS INTENDED TO
ASSERT THAT THE SUM OF $51,434.25 WAS THE MEASURE OF THE RESULTING
ENHANCEMENT IN VALUE OF THE REAL ESTATE AT THE DATE OF THE CANCELLATION
OF THE LEASE.  THE PETITIONER SEEMS NOT TO CONTEST THIS VIEW.  EVEN
UPON THIS ASSUMPTION WE THINK THAT GAIN IN THE AMOUNT NAMED WAS
REALIZED BY THE RESPONDENT IN THE YEAR OF REPOSSESSION. 

THE RESPONDENT CAN NOT SUCCESSFULLY CONTEND THAT THE DEFINITION OF
GROSS INCOME IN SEC. 22(A) OF THE REVENUE ACT OF 1932  FN7  IS NOT
BROAD ENOUGH TO EMBRACE THE GAIN IN QUESTION.  THAT DEFINITION FOLLOWS
CLOSELY THE SIXTEENTH AMENDMENT.  ESSENTIALLY THE RESPONDENT'S POSITION
IS THAT THE AMENDMENT DOES NOT PERMIT THE TAXATION OF SUCH GAIN WITHOUT
APPORTIONMENT AMONGST THE STATES.  HE RELIES UPON WHAT WAS SAID IN
HEWITT REALTY CO. V. COMMISSIONER, SUPRA, AND UPON EXPRESSIONS FOUND IN
THE DECISIONS OF THIS COURT DEALING WITH THE TAXABILITY OF STOCK
DIVIDENDS TO THE EFFECT THAT GAIN DERIVED FROM CAPITAL MUST BE
SOMETHING OF EXCHANGEABLE VALUE PROCEEDING FROM PROPERTY, SEVERED FROM
THE CAPITAL, HOWEVER INVESTED OR EMPLOYED, AND RECEIVED BY THE
RECIPIENT FOR HIS SEPARATE USE, BENEFIT, AND DISPOSAL.  FN8  HE
EMPHASIZES THE NECESSITY THAT THE GAIN BE SEPARATE FROM THE CAPITAL AND
SEPARATELY DISPOSABLE.  THESE EXPRESSIONS, HOWEVER, WERE USED TO
CLARIFY THE DISTINCTION BETWEEN AN ORDINARY DIVIDEND AND A STOCK
DIVIDEND.  THEY WERE MEANT TO SHOW THAT IN THE CASE OF A STOCK
DIVIDEND, THE STOCKHOLDER'S INTEREST IN THE CORPORATE ASSETS AFTER
RECEIPT OF THE DIVIDEND WAS THE SAME AS AND INSEVERABLE FROM THAT WHICH
HE OWNED BEFORE THE DIVIDEND WAS DECLARED.  WE THINK THEY ARE NOT
CONTROLLING HERE. 

WHILE IT IS TRUE THAT ECONOMIC GAIN IS NOT ALWAYS TAXABLE AS INCOME,
IT IS SETTLED THAT THE REALIZATION OF GAIN NEED NOT BE IN CASH DERIVED
FROM THE SALE OF AN ASSET.  GAIN MAY OCCUR AS A RESULT OF EXCHANGE OF
PROPERTY, PAYMENT OF THE TAXPAYER'S INDEBTEDNESS, RELIEF FROM A
LIABILITY, OR OTHER PROFIT REALIZED FROM THE COMPLETION OF A
TRANSACTION.  FN9  THE FACT THAT THE GAIN IS A PORTION OF THE VALUE OF
PROPERTY RECEIVED BY THE TAXPAYER IN THE TRANSACTION DOES NOT NEGATIVE
ITS REALIZATION. 

HERE, AS A RESULT OF A BUSINESS TRANSACTION, THE RESPONDENT RECEIVED
BACK HIS LAND WITH A NEW BUILDING ON IT, WHICH ADDED AN ASCERTAINABLE
AMOUNT TO ITS VALUE.  IT IS NOT NECESSARY TO RECOGNITION OF TAXABLE
GAIN THAT HE SHOULD BE ABLE TO SEVER THE IMPROVEMENT BEGETTING THE GAIN
FROM HIS ORIGINAL CAPITAL.  IF THAT WERE NECESSARY, NO INCOME COULD
ARISE FROM THE EXCHANGE OF PROPERTY; WHEREAS SUCH GAIN HAS ALWAYS BEEN
RECOGNIZED AS REALIZED TAXABLE GAIN.  JUDGMENT REVERSED.    FN1
HELVERING V. BRUUN, 105 F.2D 442. 

FN2  T.D. 2442, 19 TREAS. DEC. INT. REV. 25. 

FN3  REGULATIONS 33(1918 ED.)  ART.  4, P50; REGULATIONS 45(2D 1919
ED.)  ART.  48. 

FN4  THIS COURT DENIED CERTIORARI, 250 U.S. 667. 

FN5  T.D. 3062, 3 CUM. BULL.  109; REGULATIONS 45(1920 ED.), ART. 48;
REGULATIONS 62, 65, AND 69, ART. 48; REGULATIONS 86, 94, AND 101, ART.
22(A) - 13. 

FN6  THE HEWITT CASE WAS FOLLOWED IN HILGENBERG V. UNITED STATES, 21
F.SUPP.  453; STAPLES V. UNITED STATES, 21 F.SUPP.  737, AND ENGLISH V.
BITGOOD, 21 F.SUPP.  641. 

FN7  C. 209, 47 STAT. 169, 178. 

FN8  SEE EISNER V. MACOMBER, 252 U.S. 189, 207; UNITED STATES V.
PHELLIS, 257 U.S. 156, 169. 

FN9  CULLINAN V. WALKER, 262 U.S. 134; MARR V. UNITED STATES, 268
U.S. 536; OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716; UNITED
STATES V. KIRBY LUMBER CO., 284 U.S. 1; HELVERING V. AMERICAN CHICLE
CO., 291 U.S. 426; UNITED STATES V. HENDLER, 303 U.S. 564. 

THE CHIEF JUSTICE CONCURS IN THE RESULT IN VIEW OF THE TERMS OF THE
STIPULATION OF FACTS. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :














COMMISSION V. SANDERS RADIO STATION, 309 U.S. 470 


NO. 499.  ARGUED FEBRUARY 9, 1940.  - DECIDED MARCH 25, 1940.  - 70 APP.
D.C. 297 - 106 F.2D 321, REVERSED. 


1.  A FUNDAMENTAL QUESTION AS TO THE FUNCTION AND POWERS OF THE
FEDERAL COMMUNICATIONS COMMISSION WAS RAISED IN THIS CASE AND, ON THE
RECORD, IS OPEN HERE.  P. 473. 

2.  RESULTING ECONOMIC INJURY TO A RIVAL STATION IS NOT, IN AND OF
ITSELF, AND APART FROM CONSIDERATIONS OF PUBLIC CONVENIENCE, INTEREST,
OR NECESSITY, AN ELEMENT WHICH THE FEDERAL COMMUNICATIONS COMMISSION
MUST WEIGH, AND AS TO WHICH IT MUST MAKE FINDINGS, IN PASSING ON AN
APPLICATION FOR A BROADCASTING LICENSE.  P. 473. 

3.  A LICENSEE OF A BROADCASTING STATION, OVER WHOSE OBJECTION - OF
ECONOMIC INJURY TO HIS STATION - THE COMMUNICATIONS COMMISSION GRANTED
A PERMIT FOR THE ERECTION OF A RIVAL STATION, IS, UNDER SEC. 402(B)(2)
OF THE ACT, A "PERSON AGGRIEVED OR WHOSE INTERESTS ARE ADVERSELY
AFFECTED" BY THE DECISION OF THE COMMISSION, AND ENTITLED TO APPEAL
THEREFROM.  P. 476. 

4.  AN ORDER OF THE COMMUNICATIONS COMMISSION GRANTING A PERMIT TO
ERECT A BROADCASTING STATION HELD SUPPORTED BY THE FINDINGS.  P. 477. 

5.  THE CONCLUSION OF THE APPELLATE COURT THAT THE COMMUNICATIONS
COMMISSION HAD NOT USED AS EVIDENCE CERTAIN DATA AND REPORTS IN ITS
FILES - WHICH AN INTERVENING PARTY HAD BEEN DENIED AN OPPORTUNITY TO
INSPECT - ACCEPTED HERE.  P. 478. 

FEDERAL COMMUNICATIONS COMMISSION V. SANDERS BROTHERS RADIO STATION. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 308 U.S. 546, TO REVIEW A JUDGMENT WHICH SET ASIDE AN
ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION GRANTING A PERMIT TO
ERECT A BROADCASTING STATION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE TOOK THIS CASE TO RESOLVE IMPORTANT ISSUES OF SUBSTANCE AND
PROCEDURE ARISING UNDER THE COMMUNICATIONS ACT OF 1934, AS AMENDED. 
FN1 

JANUARY 20, 1936, THE TELEGRAPH HERALD, A NEWSPAPER PUBLISHED IN
DUBUQUE, IOWA, FILED WITH THE PETITIONER AN APPLICATION FOR A
CONSTRUCTION PERMIT TO ERECT A BROADCASTING STATION IN THAT CITY.  MAY
14, 1936, THE RESPONDENT, WHO HAD FOR SOME YEARS HELD A BROADCASTING
LICENSE FOR, AND HAD OPERATED, STATION WKBB AT EAST DUBUQUE, ILLINOIS,
DIRECTLY ACROSS THE MISSISSIPPI RIVER FROM DUBUQUE, IOWA, APPLIED FOR A
PERMIT TO MOVE ITS TRANSMITTER AND STUDIOS TO THE LAST NAMED CITY AND
INSTAL ITS STATION THERE.  AUGUST 18, 1936, RESPONDENT ASKED LEAVE TO
INTERVENE IN THE TELEGRAPH HERALD PROCEEDING, ALLEGING IN ITS PETITION,
INTER ALIA, THAT THERE WAS AN INSUFFICIENCY OF ADVERTISING REVENUE TO
SUPPORT AN ADDITIONAL STATION IN DUBUQUE AND INSUFFICIENT TALENT TO
FURNISH PROGRAMS FOR AN ADDITIONAL STATION; THAT ADEQUATE SERVICE WAS
BEING RENDERED TO THE COMMUNITY BY STATION WKBB AND THERE WAS NO NEED
FOR ANY ADDITIONAL RADIO OUTLET IN DUBUQUE AND THAT THE GRANTING OF THE
TELEGRAPH HERALD APPLICATION WOULD NOT SERVE THE PUBLIC INTEREST,
CONVENIENCE, AND NECESSITY.  INTERVENTION WAS PERMITTED AND BOTH
APPLICATIONS WERE SET FOR CONSOLIDATED HEARING. 

THE RESPONDENT AND THE TELEGRAPH HERALD OFFERED EVIDENCE IN SUPPORT
OF THEIR RESPECTIVE APPLICATIONS.  THE RESPONDENT'S PROOF SHOWED THAT
ITS STATION HAD OPERATED AT A LOSS; THAT THE AREA PROPOSED TO BE SERVED
BY THE TELEGRAPH HERALD WAS SUBSTANTIALLY THE SAME AS THAT SERVED BY
THE RESPONDENT AND THAT, OF THE ADVERTISERS RELIED ON TO SUPPORT THE
TELEGRAPH HERALD STATION, MORE THAN HALF HAD USED THE RESPONDENT'S
STATION FOR ADVERTISING. 

AN EXAMINER REPORTED THAT THE APPLICATION OF THE TELEGRAPH HERALD
SHOULD BE DENIED AND THAT OF THE RESPONDENT GRANTED.  ON EXCEPTIONS OF
THE TELEGRAPH HERALD, AND AFTER ORAL ARGUMENT, THE BROADCASTING
DIVISION OF PETITIONER MADE AN ORDER GRANTING BOTH APPLICATIONS,
RECITING THAT "PUBLIC INTEREST, CONVENIENCE, AND NECESSITY WOULD BE
SERVED" BY SUCH ACTION.  THE DIVISION PROMULGATED A STATEMENT OF THE
FACTS AND OF THE GROUNDS OF DECISION, RECITING THAT BOTH APPLICANTS
WERE LEGALLY, TECHNICALLY, AND FINANCIALLY QUALIFIED TO UNDERTAKE THE
PROPOSED CONSTRUCTION AND OPERATION; THAT THERE WAS NEED IN DUBUQUE AND
THE SURROUNDING TERRITORY FOR THE SERVICES OF BOTH STATIONS, AND THAT
NO QUESTION OF ELECTRICAL INTERFERENCE BETWEEN THE TWO STATIONS WAS
INVOLVED.  A REHEARING WAS DENIED AND RESPONDENT APPEALED TO THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA.  THAT COURT ENTERTAINED THE
APPEAL AND HELD THAT ONE OF THE ISSUES WHICH THE COMMISSION SHOULD HAVE
TRIED WAS THAT OF ALLEGED ECONOMIC INJURY TO THE RESPONDENT'S STATION
BY THE ESTABLISHMENT OF AN ADDITIONAL STATION AND THAT THE COMMISSION
HAD ERRED IN FAILING TO MAKE FINDINGS ON THAT ISSUE.  IT DECIDED THAT,
IN THE ABSENCE OF SUCH FINDINGS, THE COMMISSION'S ACTION IN GRANTING
THE TELEGRAPH HERALD PERMIT MUST BE SET ASIDE AS ARBITRARY AND
CAPRICIOUS.  FN2 

THE PETITIONER'S CONTENTIONS ARE THAT UNDER THE COMMUNICATIONS ACT
ECONOMIC INJURY TO A COMPETITOR IS NOT A GROUND FOR REFUSING A
BROADCASTING LICENSE AND THAT, SINCE THIS IS SO, THE RESPONDENT WAS NOT
A PERSON AGGRIEVED, OR WHOSE INTERESTS WERE ADVERSELY AFFECTED, BY THE
COMMISSION'S ACTION, WITHIN THE MEANING OF SEC. 402(B) OF THE ACT WHICH
AUTHORIZES APPEALS FROM THE COMMISSION'S ORDERS. 

THE RESPONDENT ASSERTS THAT THE PETITIONER IN ARGUMENT BELOW
CONTENTED ITSELF WITH THE CONTENTION THAT THE RESPONDENT HAD FAILED TO
PRODUCE EVIDENCE REQUIRING A FINDING OF PROBABLE ECONOMIC INJURY TO IT.
IT IS CONSEQUENTLY INSISTED THAT THE PETITIONER IS NOT IN A POSITION
HERE TO DEFEND ITS FAILURE TO MAKE SUCH FINDINGS ON THE GROUND THAT IT
IS NOT REQUIRED BY THE ACT TO CONSIDER ANY SUCH ISSUE.  BY ITS PETITION
FOR REHEARING IN THE COURT BELOW, THE COMMISSION MADE CLEAR ITS
POSITION AS NOW ADVANCED.  THE DECISION OF THE COURT BELOW, AND THE
CHALLENGE MADE IN PETITION FOR REHEARING AND HERE BY THE COMMISSION,
RAISE A FUNDAMENTAL QUESTION AS TO THE FUNCTION AND POWERS OF THE
COMMISSION AND WE THINK THAT, ON THE RECORD, IT IS OPEN HERE. 

FIRST.  WE HOLD THAT RESULTING ECONOMIC INJURY TO A RIVAL STATION IS
NOT, IN AND OF ITSELF, AND APART FROM CONSIDERATIONS OF PUBLIC
CONVENIENCE, INTEREST, OR NECESSITY, AN ELEMENT THE PETITIONER MUST
WEIGH, AND AS TO WHICH IT MUST MAKE FINDINGS, IN PASSING ON AN
APPLICATION FOR A BROADCASTING LICENSE. 

COMMISSION, IF PUBLIC CONVENIENCE, INTEREST, OR NECESSITY WILL BE
SERVED THEREBY, SUBJECT TO THE LIMITATIONS OF THIS ACT, SHALL GRANT TO
ANY APPLICANT THEREFOR A STATION LICENSE PROVIDED FOR BY THIS ACT." 
THIS MANDATE IS GIVEN MEANING AND CONTOUR BY THE OTHER PROVISIONS OF
THE STATUTE AND THE SUBJECT MATTER WITH WHICH IT DEALS.  FN3  THE ACT
CONTAINS NO EXPRESS COMMAND THAT IN PASSING UPON AN APPLICATION THE
COMMISSION MUST CONSIDER THE EFFECT OF COMPETITION WITH AN EXISTING
STATION.  WHETHER THE COMMISSION SHOULD CONSIDER THE SUBJECT MUST
DEPEND UPON THE PURPOSE OF THE ACT AND THE SPECIFIC PROVISIONS INTENDED
TO EFFECTUATE THAT PURPOSE. 

THE GENESIS OF THE COMMUNICATIONS ACT AND THE NECESSITY FOR THE
ADOPTION OF SOME SUCH REGULATORY MEASURE IS A MATTER OF HISTORY.  THE
NUMBER OF AVAILABLE RADIO FREQUENCIES IS LIMITED.  THE ATTEMPT BY A
BROADCASTER TO USE A GIVEN FREQUENCY IN DISREGARD OF ITS PRIOR USE BY
OTHERS, THUS CREATING CONFUSION AND INTERFERENCE, DEPRIVES THE PUBLIC
OF THE FULL BENEFIT OF RADIO AUDITION.  UNLESS CONGRESS HAD EXERCISED
ITS POWER OVER INTERSTATE COMMERCE TO BRING ABOUT ALLOCATION OF
AVAILABLE FREQUENCIES AND TO REGULATE THE EMPLOYMENT OF TRANSMISSION
EQUIPMENT THE RESULT WOULD HAVE BEEN AN IMPAIRMENT OF THE EFFECTIVE USE
OF THESE FACILITIES BY ANYONE.  THE FUNDAMENTAL PURPOSE OF CONGRESS IN
RESPECT OF BROADCASTING WAS THE ALLOCATION AND REGULATION OF THE USE OF
RADIO FREQUENCIES BY PROHIBITING SUCH USE EXCEPT UNDER LICENSE. 

IN CONTRADISTINCTION TO COMMUNICATION BY TELEPHONE AND TELEGRAPH,
WHICH THE COMMUNICATIONS ACT RECOGNIZES AS A COMMON CARRIER ACTIVITY
AND REGULATES ACCORDINGLY IN ANALOGY TO THE REGULATION OF RAIL AND
OTHER CARRIERS BY THE INTERSTATE COMMERCE COMMISSION,  FN4  THE ACT
RECOGNIZES THAT BROADCASTERS ARE NOT COMMON CARRIERS AND ARE NOT TO BE
DEALT WITH AS SUCH.  FN5  THUS THE ACT RECOGNIZES THAT THE FIELD OF
BROADCASTING IS ONE OF FREE COMPETITION.  THE SECTIONS DEALING WITH
BROADCASTING DEMONSTRATE THAT CONGRESS HAS NOT, IN ITS REGULATORY
SCHEME, ABANDONED THE PRINCIPLE OF FREE COMPETITION, AS IT HAS DONE IN
THE CASE OF RAILROADS,  FN6  IN RESPECT OF WHICH REGULATION INVOLVES
THE SUPPRESSION OF WASTEFUL PRACTICES DUE TO COMPETITION, THE
REGULATION OF RATES AND CHARGES, AND OTHER MEASURES WHICH ARE
UNNECESSARY IF FREE COMPETITION IS TO BE PERMITTED. 

AN IMPORTANT ELEMENT OF PUBLIC INTERST AND CONVENIENCE AFFECTING THE
ISSUE OF A LICENSE IS THE ABILITY OF THE LICENSEE TO RENDER THE BEST
PRACTICABLE SERVICE TO THE COMMUNITY REACHED BY HIS BROADCASTS.  THAT
SUCH ABILITY MAY BE ASSURED THE ACT CONTEMPLATES INQUIRY BY THE
COMMISSION, INTER ALIA, INTO AN APPLICANT'S FINANCIAL QUALIFICATIONS TO
OPERATE THE PROPOSED STATION.  FN7 

BUT THE ACT DOES NOT ESSAY TO REGULATE THE BUSINESS OF THE LICENSEE. 
THE COMMISSION IS GIVEN NO SUPERVISORY CONTROL OF THE PROGRAMS, OF
BUSINESS MANAGEMENT OR OF POLICY.  IN SHORT, THE BROADCASTING FIELD IS
OPEN TO ANYONE, PROVIDED THERE BE AN AVAILABLE FREQUENCY OVER WHICH HE
CAN BROADCAST WITHOUT INTERFERENCE TO OTHERS, IF HE SHOWS HIS
COMPETENCY, THE ADEQUACY OF HIS EQUIPMENT, AND FINANCIAL ABILITY TO
MAKE GOOD USE OF THE ASSIGNED CHANNEL. 

THE POLICY OF THE ACT IS CLEAR THAT NO PERSON IS TO HAVE ANYTHING IN
THE NATURE OF A PROPERTY RIGHT AS A RESULT OF THE GRANTING OF A
LICENSE.  LICENSES ARE LIMITED TO A MAXIMUM OF THREE YEARS' DURATION,
MAY BE REVOKED, AND NEED NOT BE RENEWED.  THUS THE CHANNELS PRESENTLY
OCCUPIED REMAIN FREE FOR A NEW ASSIGNMENT TO ANOTHER LICENSEE IN THE
INTEREST OF THE LISTENING PUBLIC. 

PLAINLY IT IS NOT THE PURPOSE OF THE ACT TO PROTECT A LICENSEE
AGAINST COMPETITION BUT TO PROTECT THE PUBLIC.  CONGRESS INTENDED TO
LEAVE COMPETITION IN THE BUSINESS OF BROADCASTING WHERE IT FOUND IT, TO
PERMIT A LICENSEE WHO WAS NOT INTERFERING ELECTRICALLY WITH OTHER
BROADCASTERS TO SURVIVE OR SUCCUMB ACCORDING TO HIS ABILITY TO MAKE HIS
PROGRAMS ATTRACTIVE TO THE PUBLIC. 

THIS IS NOT TO SAY THAT THE QUESTION OF COMPETITION BETWEEN A
PROPOSED STATION AND ONE OPERATING UNDER AN EXISTING LICENSE IS TO BE
ENTIRELY DISREGARDED BY THE COMMISSION, AND, INDEED, THE COMMISSION'S
PRACTICE SHOWS THAT IT DOES NOT DISREGARD THAT QUESTION.  IT MAY HAVE A
VITAL AND IMPORTANT BEARING UPON THE ABILITY OF THE APPLICANT
ADEQUATELY TO SERVE HIS PUBLIC; IT MAY INDICATE THAT BOTH STATIONS -
THE EXISTING AND THE PROPOSED - WILL GO UNDER, WITH THE RESULT THAT A
PORTION OF THE LISTENING PUBLIC WILL BE LEFT WITHOUT ADEQUATE SERVICE;
IT MAY INDICATE THAT, BY A DIVISION OF THE FIELD, BOTH STATIONS WILL BE
COMPELLED TO RENDER INADEQUATE SERVICE.  THESE MATTERS, HOWEVER, ARE
DISTINCT FROM THE CONSIDERATION THAT, IF A LICENSE BE GRANTED,
COMPETITION BETWEEN THE LICENSEE AND ANY OTHER EXISTING STATION MAY
CAUSE ECONOMIC LOSS TO THE LATTER.  IF SUCH ECONOMIC LOSS WERE A VALID
REASON FOR REFUSING A LICENSE THIS WOULD MEAN THAT THE COMMISSION'S
FUNCTION IS TO GRANT A MONOPOLY IN THE FIELD OF BROADCASTING, A RESULT
WHICH THE ACT ITSELF EXPRESSLY NEGATIVES,  FN8  WHICH CONGRESS WOULD
NOT HAVE CONTEMPLATED WITHOUT GRANTING THE COMMISSION POWERS OF CONTROL
OVER THE RATES, PROGRAMS, AND OTHER ACTIVITIES OF THE BUSINESS OF
BROADCASTING. 

WE CONCLUDE THAT ECONOMIC INJURY TO AN EXISTING STATION IS NOT A
SEPARATE AND INDEPENDENT ELEMENT TO BE TAKEN INTO CONSIDERATION BY THE
COMMISSION IN DETERMINING WHETHER IT SHALL GRANT OR WITHHOLD A
LICENSE. 

SECOND.  IT DOES NOT FOLLOW THAT, BECAUSE THE LICENSEE OF A STATION
CANNOT RESIST THE GRANT OF A LICENSE TO ANOTHER, ON THE GROUND THAT THE
RESULTING COMPETITION MAY WORK ECONOMIC INJURY TO HIM, HE HAS NO
STANDING TO APPEAL FROM AN ORDER OF THE COMMISSION GRANTING THE
APPLICATION. 

APPEALS OF THE DISTRICT OF COLUMBIA (1) BY AN APPLICANT FOR A LICENSE
OR PERMIT, OR (2) "BY ANY OTHER PERSON AGGRIEVED OR WHOSE INTERESTS ARE
ADVERSELY AFFECTED BY ANY DECISION OF THE COMMISSION GRANTING OR
REFUSING ANY SUCH APPLICATION." 

THE PETITIONER INSISTS THAT AS ECONOMIC INJURY TO THE RESPONDENT WAS
NOT A PROPER ISSUE BEFORE THE COMMISSION IT IS IMPOSSIBLE THAT SEC.
402(B) WAS INTENDED TO GIVE THE RESPONDENT STANDING TO APPEAL, SINCE
ABSENCE OF RIGHT IMPLIES ABSENCE OF REMEDY.  THIS VIEW WOULD DEPRIVE
SUBSECTION (2) OF ANY SUBSTANTIAL EFFECT. 

CONGRESS HAD SOME PURPOSE IN ENACTING SEC. 402(B)(2).  IT MAY HAVE
BEEN OF OPINION THAT ONE LIKELY TO BE FINANCIALLY INJURED BY THE ISSUE
OF A LICENSE WOULD BE THE ONLY PERSON HAVING A SUFFICIENT INTEREST TO
BRING TO THE ATTENTION OF THE APPELLATE COURT ERRORS OF LAW IN THE
ACTION OF THE COMMISSION IN GRANTING THE LICENSE.  IT IS WITHIN THE
POWER OF CONGRESS TO CONFER SUCH STANDING TO PROSECUTE AN APPEAL.  FN9 

WE HOLD, THEREFORE, THAT THE RESPONDENT HAD THE REQUISITE STANDING TO
APPEAL AND TO RAISE, IN THE COURT BELOW, ANY RELEVANT QUESTION OF LAW
IN RESPECT OF THE ORDER OF THE COMMISSION. 

THIRD.  EXAMINATION OF THE FINDINGS AND GROUNDS OF DECISION SET FORTH
BY THE COMMISSION DISCLOSES THAT THE FINDINGS WERE SUFFICIENT TO COMPLY
WITH THE REQUIREMENTS OF THE ACT IN RESPECT OF THE PUBLIC INTEREST,
CONVENIENCE, OR NECESSITY INVOLVED IN THE ISSUE OF THE PERMIT.  IN ANY
EVENT, IF THE FINDINGS WERE NOT AS DETAILED UPON THIS SUBJECT AS MIGHT
BE DESIRABLE, THE ATTACK UPON THEM IS NOT THAT THE PUBLIC INTEREST IS
NOT SUFFICIENTLY PROTECTED BUT ONLY THAT THE FINANCIAL INTERESTS OF THE
RESPONDENT HAVE NOT BEEN CONSIDERED.  WE FIND NO REASON FOR ABROGATING
THE COMMISSION'S ORDER FOR LACK OF ADEQUATE FINDINGS. 

FOURTH.  THE RESPONDENT HERE RENEWS A CONTENTION MADE IN THE COURT OF
APPEALS TO THE EFFECT THAT THE COMMISSION USED AS EVIDENCE CERTAIN DATA
AND REPORTS IN ITS FILES WITHOUT PERMITTING THE RESPONDENT, AS
INTERVENOR BEFORE THE COMMISSION, THE OPPORTUNITY OF INSPECTING THEM. 
THE COMMISSION DISAVOWS THE USE OF SUCH MATERIAL AS EVIDENCE IN THE
CAUSE AND THE COURT OF APPEALS HAS FOUND THE DISAVOWAL VERACIOUS AND
SUFFICIENT.  WE ARE NOT DISPOSED TO DISTURB ITS CONCLUSION. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. 

FN1  ACT OF JUNE 19, 1934, C. 652, 48 STAT. 1064; ACT OF JUNE 5,
1936, C. 511, 49 STAT. 1475; ACT OF MAY 20, 1937, C. 229, 50 STAT. 189,
47 U.S.C. 151, ET SEQ.    FN2  SANDERS BROTHERS RADIO STATION V.
FEDERAL COMMUNICATIONS COMMISSION, 70 APP. D.C. 297; 106 F.2D 321. 

FN3  RADIO COMMISSION V. NELSON BROS. CO., 289 U.S. 266, 285. 

FN4  SEE TITLE II, SECS. 201-221, 47 U.S.C. SECS. 201-221. 

FN5  SEE SEC. 3(H), 47 U.S.C. SEC. 153(H). 

FN6  COMPARE TEXAS & PACIFIC RY. V. GULF, C. & S.F. RY. CO., 270 U.S.
266, 277; CHICAGO JUNCTION CASE, 264 U.S. 258.    FN7  SEE SEC. 308(B),
47 U.S.C. SEC. 308(B). 

FN8  SEE SEC. 311, 47 U.S.C. SEC. 311, RELATING TO UNFAIR COMPETITION
AND MONOPOLY. 

FN9  COMPARE INTERSTATE COMMERCE COMMISSION V. OREGON-WASHINGTON R.
CO., 288 U.S. 14, 23-25. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :













THOMPSON V. MAGNOLIA CO., 309 U.S. 478 


NO. 481.  ARGUED FEBRUARY 28, 1940.  - DECIDED MARCH 25, 1940.  - 106
F.2D 217, REVERSED. 


IN A RAILROAD REORGANIZATION PROCEEDING UNDER SEC. 77 OF THE
BANKRUPTCY ACT IN THE FEDERAL COURT FOR MISSOURI, RIGHTS IN OIL
UNDERLYING THE RIGHT OF WAY OF THE RAILROAD IN ILLINOIS WERE CLAIMED BY
THE TRUSTEE AND BY OTHERS ADVERSELY.  THE TRUSTEE HAD POSSESSION OF THE
RIGHT-OF-WAY LANDS UNDER CLAIM OF FEE SIMPLE OWNERSHIP.  HELD: 

1.  THE BANKRUPTCY COURT HAD SUMMARY JURISDICTION TO ADJUDICATE THE
QUESTION OF TITLE.  P. 481. 

2.  THE BANKRUPTCY COURT DID NOT ABUSE ITS DISCRETION IN ORDERING
THAT THE UNDERLYING OIL BE EXTRACTED AND MARKETED, TO PREVENT
IRREPARABLE LOSS TO THE ESTATE BY ITS BEING DRAINED OFF THROUGH WELLS
ON ADJACENT LANDS, AND THAT THE NET PROCEEDS THEREOF BE IMPOUNDED,
PENDING DETERMINATION AS TO THE RIGHTFUL OWNER.  P. 482. 

3.  UNDER THE CIRCUMSTANCES, THE OWNERSHIP OF THE FEE TO THE RIGHT-OF
WAY LANDS SHOULD BE DETERMINED BY THE STATE COURTS OF ILLINOIS, AND THE
BANKRUPTCY COURT SHOULD ORDER THE TRUSTEE TO PROCEED ACCORDINGLY.  P.
483. 

THOMPSON, TRUSTEE, V. MAGNOLIA PETROLEUM CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 308 U.S. 630, TO REVIEW A DECREE WHICH REVERSED AN ORDER
OF THE DISTRICT COURT AND DIRECTED DISMISSAL OF A PETITION TO THAT
COURT BY A TRUSTEE IN A PROCEEDING UNDER SEC. 77 OF THE BANKRUPTCY
ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

A RICH OIL FIELD WAS DISCOVERED IN ILLINOIS IN 1938.  THEREUPON, THIS
DISPUTE AROSE BETWEEN A TRUSTEE OF A RAILROAD IN REORGANIZATION UNDER
SEC. 77 OF THE BANKRUPTCY ACT (11 U.S.C. 205) AND OTHER CLAIMANTS AS TO
THE LEGAL RIGHT TO DRILL FOR AND CAPTURE FUGITIVE OIL UNDER THE
RAILROAD'S RIGHT OF WAY TRAVERSING THE NEWLY DISCOVERED FIELD.  THE
TRUSTEE ASSERTS FEE SIMPLE OWNERSHIP OF THE RIGHT OF WAY LANDS WITH
CONSEQUENT RIGHT TO REDUCE THE UNDERLYING OIL TO POSSESSION. 
RESPONDENTS DENY THE TRUSTEE'S ALLEGED TITLE OR THAT HE HAS ANY
INTEREST IN THE LAND BEYOND A MERE EASEMENT - A LIMITED RIGHT TO USE
THE SURFACE FOR RAILROAD PURPOSES ONLY.  THEY ALLEGE THAT OWNERSHIP OF
THE FEE IS IN OTHERS, FROM WHOM THEY HAVE OBTAINED OIL LEASES.  THIS
DETERMINATIVE QUESTION OF FEE SIMPLE OWNERSHIP CAN BE DECIDED ONLY BY
INTERPRETATION, UNDER ILLINOIS LAW, OF INSTRUMENTS GRANTING THE
RAILROAD ITS RIGHT OF WAY. 

THE QUESTIONS HERE ARE WHETHER THE BANKRUPTCY COURT HAS SUMMARY
JURISDICTION TO ADJUDICATE OWNERSHIP OF THE RIGHT OF WAY LANDS, AND
WHETHER THAT COURT ABUSED ITS DISCRETION IN ORDERING THE FUGITIVE OIL
CAPTURED AND ITS PROCEEDS IMPOUNDED PENDING ADJUDICATION OF THE
OWNERSHIP. 

PETITIONER IS TRUSTEE OF THE MISSOURI-ILLINOIS RAILROAD CO., A
SUBSIDIARY OF THE MISSOURI-PACIFIC RAILROAD CO., IN PROCESS OF
REORGANIZATION IN THE SAME PROCEEDING WITH THE PARENT COMPANY IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI.  THE
TRUSTEE PETITIONED THE BANKRUPTCY COURT "  ...  FOR DETERMINATION OF
TITLE AND FOR ADVICE AND DIRECTIONS RESPECTING CERTAIN PROPOSED OIL
OPERATIONS ON RIGHT-OF-WAY NEAR SALEM, ILLINOIS."  AND HIS PETITION
ALLEGED THAT THE RIGHT OF WAY LANDS HAD BEEN "FENCED AND USED BY
TRUSTEE AND HIS PREDECESSORS IN INTEREST WITHOUT INTERRUPTION, AND WITH
ACTUAL VISIBLE AND EXCLUSIVE POSSESSION ACQUIRED UNDER CLAIM OF TITLE
INCONSISTENT WITH THE CLAIMS OF TITLE OF ANY OTHER OWNER FOR AT LEAST
TWENTY YEARS PRIOR TO INSTITUTION OF THESE PROCEEDINGS"; THAT BY REASON
OF THIS ADVERSE POSSESSION AND VARIOUS CONVEYANCES AND DECREES OF
RECORD, THE TRUSTEE HAD TITLE TO THE LANDS AND A RIGHT TO THE OIL
THEREUNDER; THAT NUMEROUS WELLS HAD BEEN DUG IN CLOSE PROXIMITY TO THE
RIGHT OF WAY AND WITHOUT PROMPT ACTION TO REMOVE THE OIL UNDER THE
RIGHT OF WAY IT WOULD BE DRAINED INTO WELLS ON ADJACENT LANDS AND ITS
VALUE FOREVER LOST TO THE STOCKHOLDERS AND CREDITORS OF THE RAILROAD. 
THE PRAYER SOUGHT NOTICE TO CLAIMANTS OF RIGHTS TO THE OIL TO APPEAR
AND SHOW CAUSE WHY THEY SHOULD NOT BE "ESTOPPED AND ENJOINED FROM
ASSERTING ANY FURTHER TITLE IN AND TO THE LAND ...  UPON WHICH SAID
RIGHT-OF-WAY IS LOCATED OR TO THE MINERAL, OIL OR GAS DEPOSITS IN AND
UNDER ...  (THE) RIGHT-OF-WAY OR EXTRACTED THEREFROM"; AND THAT,
PENDING "DETERMINATION OF ADVERSE CLAIMS TO TITLE," THE TRUSTEE BE
AUTHORIZED TO HAVE WELLS DRILLED, OIL CAPTURED AND SOLD, AND THE
PROCEEDS, LESS COST OF PRODUCTION, IMPOUNDED AND HELD FOR THE ACCOUNT
OF THE RIGHTFUL OWNER AS MIGHT BE THEREAFTER DETERMINED BY THE
BANKRUPTCY COURT. 

ALTHOUGH THEY ADMITTED THAT THE RAILROAD "HAD BEEN IN POSSESSION OF
THE  ...  PREMISES" USING THEM FOR RIGHT OF WAY AND TRACKS, RESPONDENTS
DENIED BOTH THAT THE TRUSTEE OWNED THE FEE AND THAT THE RAILROAD HAD
BEEN, OR THAT THE TRUSTEE WAS, IN ADVERSE POSSESSION OF THE OIL AND
OTHER MINERALS UNDER THE RIGHT OF WAY. 

THE BANKRUPTCY COURT FOUND THAT THE TRUSTEE WAS IN "ACTUAL POSSESSION
OF THE PROPERTY  ...  , UNDER ASSERTION OF CLAIM TO FEE SIMPLE TITLE
THERETO"; THAT THE COURT ACCORDINGLY HAD JURISDICTION; AND THAT
IMMEDIATE ACTION WAS NECESSARY "TO CONSERVE THE OIL SUPPLY UNDERLYING
THE PROPERTY FOR THE BENEFIT OF THE PARTIES IN INTEREST AS THEIR
RIGHTS, TITLE, AND INTEREST THERETO MAY HEREAFTER BE DETERMINED BY THIS
COURT."  THE TRUSTEE WAS THEREFORE DIRECTED TO PROVIDE FOR WELLS,
PRODUCTION AND SALE OF OIL, WITH THE PROCEEDS - LESS EXPENSES - TO BE
IMPOUNDED PENDING ADJUDICATION OF OWNERSHIP. 

UPON CONSIDERATION OF ILLINOIS LAW, WHICH ADMITTEDLY MUST GOVERN, THE
COURT OF APPEALS REVERSED WITH INSTRUCTIONS TO DISMISS THE TRUSTEE'S
PETITION, CONCLUDING THAT, AS INTERPRETED UNDER ILLINOIS LAW, THE
INSTRUMENTS RELIED ON BY THE TRUSTEE CONVEYED AN EASEMENT ONLY AND THAT
THE TRUSTEE'S POSSESSION OF THE RIGHT OF WAY LANDS UNDER AN ERRONEOUS
CLAIM OF FEE SIMPLE OWNERSHIP WAS NOT SUCH POSSESSION OF THE OIL AND
GAS AS TO GIVE THE BANKRUPTCY COURT SUMMARY JURISDICTION TO DETERMINE
FEE SIMPLE OWNERSHIP.  FN1  CONVEYANCES OF RIGHTS OF WAY IN ILLINOIS
SUBSTANTIALLY SIMILAR TO THOSE HERE IN DISPUTE HAVE BEEN HELD BY THE
COURT OF APPEALS FOR THE SEVENTH CIRCUIT, IN WHICH ILLINOIS IS LOCATED,
TO CONVEY A FEE SIMPLE TITLE UNDER THAT STATE'S LAW.  FN2  BECAUSE OF
THIS CONFLICT AND THE IMPORTANCE OF THE QUESTION OF THE BANKRUPTCY
COURT'S ASSERTED SUMMARY JURISDICTION, WE GRANTED CERTIORARI.  FN3 

FIRST.  BANKRUPTCY COURTS HAVE SUMMARY JURISDICTION TO ADJUDICATE
CONTROVERSIES RELATING TO PROPERTY OVER WHICH THEY HAVE ACTUAL OR
CONSTRUCTIVE POSSESSION.  AND THE TEST OF THIS JURISDICTION IS NOT
TITLE IN BUT POSSESSION BY THE BANKRUPT AT THE TIME OF THE FILING OF
THE PETITION IN BANKRUPTCY.  FN4  HERE, THE TRUSTEE SUCCEEDED TO THE
PHYSICAL POSSESSION, CUSTODY AND CONTROL OF THE RIGHT OF WAY LANDS
WHICH THE RAILROAD HAD ENJOYED AT THE TIME OF BANKRUPTCY.  IN FACT,
HOWEVER, NO ONE HAD, WHEN THE PETITION WAS FILED, PHYSICAL POSSESSION
OF THE FUGITIVE OIL APART FROM THE LANDS UNDER WHICH IT LAY.  THE
SUPREME COURT OF ILLINOIS HAS SAID, "THE GRANT OF OIL AND GAS IS A
GRANT OF SUCH OIL AND GAS AS THE GRANTEE MAY FIND, AND HE IS NOT VESTED
WITH ANY ESTATE IN THE OIL OR GAS UNTIL IT IS ACTUALLY FOUND."  FN5
AND THIS ENTIRE CONTROVERSY CAN ONLY BE RESOLVED BY SOLUTION OF THE
PRIMARY QUESTION OF FEE SIMPLE OWNERSHIP.  THE PARTIES AGREE THAT IF
OWNERSHIP OF THE RIGHT OF WAY LANDS IS IN THE TRUSTEE HE HAS THE RIGHT
TO CAPTURE THE UNDERLYING OIL, AND IF NOT, THAT THE TRUSTEE HAS NO SUCH
RIGHT.  THUS, THE RIGHT TO THE DISPUTED OIL NECESSARILY HINGES UPON
WHERE THE OWNERSHIP OF THE FEE TO THESE LANDS LIES.  AND POSSESSION OF
THOSE LANDS UNDER CLAIM OF FEE SIMPLE OWNERSHIP BY THE RAILROAD AND
LATER BY THE TRUSTEE WAS AN ADEQUATE BASIS FOR THE DISTRICT COURT'S
SUMMARY JURISDICTION.  AS PREVIOUSLY DETERMINED IN LITIGATION INVOLVING
ANOTHER ASPECT OF THIS SAME REORGANIZATION, THE JURISDICTION THUS
ACQUIRED BY THE BANKRUPTCY COURT "EXTENDS  ...  TO THE ADJUDICATION OF
QUESTIONS RESPECTING THE TITLE."  EX PARTE BALDWIN, 291 U.S. 610, 616. 

SECOND.  WE ARE OF OPINION THAT IT WAS NOT AN ABUSE OF DISCRETION FOR
THE BANKRUPTCY COURT TO AUTHORIZE THE TRUSTEE TO PROTECT ALL INTERESTS
SO FAR AS IT APPEARED POSSIBLE TO DO SO - BY PRESERVING THE OIL, FROM
WASTE AND DEPLETION, THROUGH ITS EXTRACTION AND SALE WITH THE NET
PROCEEDS TO BE IMPOUNDED UNTIL FINAL DETERMINATION OF THE CONTROVERSY
OVER TITLE TO THE RIGHT OF WAY LANDS. 

THE VERIFIED PETITION AND SUPPORTING EVIDENCE OFFERED A BASIS FOR THE
DISTRICT COURT'S FINDING THAT SUCH STEPS WERE NECESSARY TO PROTECT THE
ESTATE'S POSSIBLE INTEREST IN THE OIL UNDER THE RIGHT OF WAY.  NO OTHER
METHOD HAS BEEN SUGGESTED WHEREBY SUCH PROTECTION AGAINST IRREPARABLE
LOSS TO THE ESTATE OF THE WANDERING AND VAGRANT OIL  FN6  COULD HAVE
BEEN BETTER AFFORDED.  THE  "... MALLEABLE PROCESSES OF COURTS IN
BANKRUPTCY GIVE ASSURANCE OF A REMEDY THAT CAN BE MOULDED AND ADJUSTED
TO THE NEEDS OF THE OCCASION."  STEELMAN V. ALL CONTINENT CO., 301 U.S.
278, 290. 

THIRD.  A COURT OF BANKRUPTCY HAS AN EXCLUSIVE AND NONDELEGABLE
CONTROL OVER THE ADMINISTRATION OF AN ESTATE IN ITS POSSESSION.  FN7
BUT THE PROPER EXERCISE OF THAT CONTROL MAY, WHERE THE INTERESTS OF THE
ESTATE AND THE PARTIES WILL BEST BE SERVED, LEAD THE BANKRUPTCY COURT
TO CONSENT TO SUBMISSION TO STATE COURTS OF PARTICULAR CONTROVERSIES
INVOLVING UNSETTLED QUESTIONS OF STATE PROPERTY LAW AND ARISING IN THE
COURSE OF BANKRUPTCY ADMINISTRATION.  FN8  AND, UNDER THE CIRCUMSTANCES
OF THIS CASE, WE CONCLUDE THAT IT IS DESIRABLE TO HAVE THE LITIGATION
PROCEED IN THE STATE COURTS OF ILLINOIS.  FN9  AN ORDER TO THE TRUSTEE
TO PROCEED IN THE ILLINOIS COURTS FOR A DECISION ON THE OWNERSHIP OF
THE FEE TO THE RIGHT OF WAY LANDS WILL BE COMPARABLE TO ONE IN WHICH
THE BANKRUPTCY COURT, PRESERVING THE STATUS QUO THE WHILE, ORDERS A
TRUSTEE TO DETERMINE IN A PLENARY STATE COURT SUIT THE LEGAL RIGHT TO
PROPERTY ALLEGED BY THE TRUSTEE TO HAVE BEEN FRAUDULENTLY TRANSFERRED
BY THE BANKRUPT.  FN10  DECISION WITH WHICH THE FEDERAL COURT OF
BANKRUPTCY IS HERE FACED CALLS FOR INTERPRETATION OF INSTRUMENTS OF
CONVEYANCE IN ACCORDANCE WITH ILLINOIS LAW.  NEITHER STATUTES NOR
DECISIONS OF ILLINOIS HAVE BEEN POINTED TO WHICH ARE CLEARLY
APPLICABLE.  AND THE DIFFICULTIES OF DETERMINING JUST WHAT SHOULD BE
THE DECISION UNDER THE LAW OF THAT STATE ARE PERSUASIVELY INDICATED BY
THE DIFFERENT RESULTS REACHED BY THE TWO CIRCUIT COURTS OF APPEAL THAT
HAVE ATTEMPTED THE DETERMINATION.  UNLESS THE MATTER IS REFERRED TO THE
STATE COURTS, UPON SUBSEQUENT DECISION BY THE SUPREME COURT OF ILLINOIS
IT MAY APPEAR THAT RIGHTS IN LOCAL PROPERTY OF PARTIES TO THIS
PROCEEDING HAVE - BY THE ACCIDENT OF FEDERAL JURISDICTION - BEEN
DETERMINED CONTRARY TO THE LAW OF THE STATE, WHICH IN SUCH MATTERS IS
SUPREME.  FN11 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED EXCEPT INSOFAR AS IT PROVIDES FOR
ADJUDICATION OF THE DISPUTED OWNERSHIP IN THE BANKRUPTCY COURT.  THE
CAUSE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO MODIFY ITS
ORDER SO AS TO PROVIDE APPROPRIATE SUBMISSION OF THE QUESTION OF FEE
SIMPLE OWNERSHIP OF THE RIGHT OF WAY TO THE ILLINOIS STATE COURTS. 
REVERSED. 

FN1  106 F.2D 217. 

FN2  CARTER OIL CO. V. WELKER, 112 F.2D 299. 

FN3  308 U.S. 630. 

FN4  HARRIS V. AVERY BRUNDAGE CO., 305 U.S. 160, 162, 163 AND NOTES
4, 5 AND 6. 

FN5  POE V. ULREY, 233 ILL. 56, 62; 84 N.E. 46, 48. 

FN6  SEE POE V. ULREY, SUPRA, 62. 

FN7  ISAACS V. HOBBS TIE & T. CO., 282 U.S. 734. 

FN8  ID., 739; SEE, IN RE SCHULTE UNITED, INC., 49 F.2D 264; SEE,
E.G., FOUST V. MUNSON LINES, 299 U.S. 77(BANKRUPTCY COURT'S DENIAL OF
PERMISSION FOR SUIT IN ADMIRALTY AGAINST DEBTOR IN 77B, HELD ABUSE OF
DISCRETION); TEXAS V. DONOGHUE, 302 U.S. 284(REFUSAL OF PERMISSION FOR
A STATE TO TRY IN A STATE COURT ITS CLAIM - BASED ON ALLEGED FORFEITURE
- TO OIL HELD BY TRUSTEE IN 77B, ABUSE OF DISCRETION).  5 REMINGTON ON
BANKRUPTCY, 4TH ED., SECS. 2045, 2370. 

FN9  CF. EX PARTE BALDWIN, SUPRA, 619. 

FN10  CF. STEELMAN V. ALL CONTINENT CO., 301 U.S. 278.  SEE SCOTT V.
GILLESPIE, 103 KAN. 745; 176 P. 132, CERT. DEN.  249 U.S. 606(TRUSTEE
ORDERED INTO STATE COURT FOR CONSTRUCTION OF WILL TO DETERMINE ESTATE,
IF ANY, TAKEN THEREUNDER BY BANKRUPT). 

FN11  CF. ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :






















KERSH LAKE DIST. V. JOHNSON, 309 U.S. 485 


NO. 595.  ARGUED MARCH 8, 1940.  - DECIDED MARCH 25, 1940.  - 198 ARK.
743 - 131 S.W.2D 620, AFFIRMED. 


1.  A DECISION BY THE HIGHEST COURT OF A STATE AS TO THE JURISDICTION,
UNDER THE STATE LAW, OF AN INFERIOR COURT OF THE STATE, IS BINDING
HERE.  P. 489. 

2.  IN A SUIT IN A STATE COURT OF ARKANSAS BROUGHT BY THE
COMMISSIONERS OF A DRAINAGE DISTRICT OF THAT STATE TO COLLECT DRAINAGE
TAXES, THE SUIT HAVING BEEN INSTITUTED PURSUANT TO A FEDERAL COURT
DECREE COMPELLING EXTENSION AND COLLECTION OF SUCH TAXES TO SATISFY
CERTIFICATES OF INDEBTEDNESS ISSUED BY THE DISTRICT, PRIOR STATE
CHANCERY COURT DECREES ADJUDGING A LANDOWNER'S DRAINAGE TAXES FULLY
PAID AND HIS LANDS FREE FROM ANY FURTHER LIABILITY THEREFOR WERE
TREATED AS RES JUDICATA.  HELD: 

(1)  CERTIFICATE HOLDERS WERE NOT DEPRIVED OF THEIR PROPERTY WITHOUT
DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT, EVEN
THOUGH THEY WERE NOT PARTIES TO AND HAD NO NOTICE OF THE CHANCERY COURT
PROCEEDINGS.  PP. 490-491. 

THE CERTIFICATE HOLDERS WERE CHARGED WITH NOTICE OF AND BOUND BY
RELEVANT STATUTES OF THE STATE IN EXISTENCE WHEN THE CERTIFICATES WERE
ISSUED.  THOSE STATUTES PROVIDED FOR DETERMINATION OF PROPORTIONATE
LIABILITIES OF LANDS IN THE DISTRICT BY CHANCERY PROCEEDINGS BETWEEN
THE COMMISSIONERS AND LANDOWNERS, WITH NO REQUIREMENT OF NOTICE TO
CREDITORS OF THE DISTRICT.  THE COMMISSIONERS AS PARTIES TO THE
PROCEEDINGS IN THE CHANCERY COURT HAD APPROPRIATELY ASSERTED THE LIEN
FOR BENEFIT OF THE CERTIFICATE HOLDERS, AND THE LATTER ARE BOUND BY THE
DECREES. 

(2)  ISSUES OF FRAUD AND COLLUSION IN THIS CASE RAISE NO QUESTIONS
WHICH THE HIGHEST COURT OF THE STATE WAS NOT COMPETENT FINALLY TO
DECIDE; AND THE DECISION OF THAT COURT THAT NO FRAUD OR COLLUSION WAS
SHOWN IS ACCEPTED HERE.  P. 492. 

(3)  IRRESPECTIVE OF WHETHER THE DRAINAGE DISTRICT WAS EMPOWERED TO
REPRESENT THE LANDOWNERS WHEN THE EXTENSION OF TAXES AS A WHOLE WAS
ORDERED, THE FEDERAL COURT JUDGMENT DID NOT FORECLOSE PERSONAL DEFENSES
WHICH INDIVIDUAL LANDOWNERS MIGHT PLEAD IN SUITS FOR COLLECTION; AND
THE REFUSAL OF THE STATE COURT TO ACCEPT THE FEDERAL COURT JUDGMENT AS
DETERMINATIVE OF THE INDIVIDUAL LANDOWNER'S LIABILITY DID NOT DENY FULL
FAITH AND CREDIT TO SUCH JUDGMENT.  P. 492. 

KERSH LAKE DRAINAGE DISTRICT ET AL. V. JOHNSON. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

CERTIORARI, POST, P. 642, TO REVIEW THE REVERSAL OF A DECREE AGAINST
A LANDOWNER IN A SUIT TO ENFORCE COLLECTION OF DRAINAGE DISTRICT
TAXES. 

A STATE COURT MAY NOT ENJOIN THE COLLECTION OF A TAX ORDERED BY A
FEDERAL COURT TO BE LEVIED AND COLLECTED FOR THE PURPOSE OF PAYING A
JUDGMENT RENDERED THEREIN.  RIGGS V. JOHNSON COUNTY, 6 WALL.  166;
UNITED STATES V. COUNCIL OF KEOKUK, 6 WALL.  514; SUPERVISORS V.
DURANT, 9 WALL.  415; MAYOR V. LORD, 9 WALL.  409; HAWLEY V. FAIRBANKS,
108 U.S. 543; GAINES V. SPRINGER, 46 ARK. 502. 

THE COURT BELOW DENIED FULL FAITH AND CREDIT TO THE JUDGMENT OF THE
FEDERAL COURT.  THE PLEA THAT THE STATE COURT INJUNCTIONS BARRED THE
COLLECTION OF THE TAXES HAD BEEN OVERRULED BY THE FEDERAL COURT.  ART.
IV, SEC. 1; PARAGRAPH 2 OF ART. VI OF THE CONST.; R.S. SEC. 905;
CHANDLER V. PEKETZ, 297 U.S. 609; STOLL V. GOTTLIEB, 305 U.S. 165;
KNIGHTS OF PYTHIAS V. MEYER, 265 U.S. 30-33; HANCOCK NATIONAL BANK V.
FARNUM, 176 U.S. 640; METCALF V. WATERTOWN, 153 U.S. 671; DUPASSEUR V.
ROCHEREAU, 21 WALL.  130, 134; CRESCENT CITY CO. V. BUTCHERS' UNION,
120 U.S. 141, 146; PITTSBURGH RAILWAY CO. V. LONG ISLAND L. & T. CO.,
172 U.S. 493, 507; DES MOINES NAV. & R. CO. V. IOWA HOMESTEAD CO., 123
U.S. 552, 559; EMBRY V. PALMER, 107 U.S. 3, 10. 

THE PLAINTIFFS WERE DEPRIVED OF THEIR PROPERTY WITHOUT DUE PROCESS OF
LAW BY THE RULING THAT JUDGMENTS IN SUITS OF WHICH THE CREDITORS HAD NO
NOTICE COULD BE PLEADED IN BAR OF THE JUDGMENT OF THE FEDERAL COURT. 
MOREOVER, THE SUITS IN THE STATE COURT WERE COLLUSIVE.  THE CHIEF
BENEFICIARIES WERE THE COMMISSIONERS THEMSELVES, WHO TOOK NO APPEAL,
ALTHOUGH THE STATE SUPREME COURT HAD MANY TIMES DECIDED THAT THE
BENEFITS BORE INTEREST, AND WOULD CERTAINLY HAVE REVERSED.  WINDSOR V.
MCVEIGH, 93 U.S. 274; HAGAR V. RECLAMATION DIST. NO. 108, 111 U.S. 701;
OCHOA V. HERNANDEZ, 230 U.S. 139; SCOTT V. MCNEAL, 154 U.S. 34; HALE V.
FINCH, 104 U.S. 261; WABASH RAILROAD V. ADELBERT COLLEGE, 208 U.S. 39;
EMPIRE V. DARLINGTON, 101 U.S. 87; BROOKLYN V. INSURANCE CO., 99 U.S.
362. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

KERSH LAKE DRAINAGE DISTRICT WAS ORGANIZED, IN 1912, UNDER THE
GENERAL DRAINAGE LAW OF ARKANSAS.  FN1  AN ASSESSMENT OF THE VALUE OF
BENEFITS TO ACCRUE TO EACH OF THE TRACTS OF LAND EMBRACED IN THE
DISTRICT WAS DULY MADE, UPON THE BASIS OF WHICH ANNUAL LEVIES WERE
EXTENDED AGAINST EACH TRACT.  AND THE DISTRICT ISSUED INTEREST BEARING
CERTIFICATES OF INDEBTEDNESS IN PAYMENT OF CONSTRUCTION WORK DONE FOR
IT BY CONTRACT. 

RESPONDENT JOHNSON, A LANDOWNER IN THE DISTRICT, BROUGHT SUIT AGAINST
THE DISTRICT AND ITS COMMISSIONERS IN THE LINCOLN CHANCERY COURT OF THE
STATE OF ARKANSAS IN ORDER TO ESTABLISH THAT HE HAD FULLY PAID THE
SHARE OF BENEFIT TAXES APPORTIONED TO HIS LAND AND WAS THEREFORE
ENTITLED UNDER ARKANSAS LAW TO HAVE HIS LAND DECLARED FREE FROM ANY
FURTHER DRAINAGE TAX LIABILITY.  IN 1931, THAT STATE COURT RENDERED ITS
FINAL DECREE TO THE EFFECT THAT THE LIEN OF THE DISTRICT FOR SUCH TAXES
HAD ALREADY BEEN "FULLY SATISFIED AND RELEASED," AND ENJOINED FURTHER
EXTENSION OF DRAINAGE TAXES AGAINST HIS LANDS.  IN 1932, THE SAME STATE
COURT RENDERED A LIKE DECREE IN FAVOR OF W.A. FISH AND OTHER NAMED
LANDOWNERS OF THE DISTRICT. 

NOVEMBER 1, 1935, A JUDGMENT AGAINST THE DISTRICT WAS OBTAINED BY
CERTIFICATE HOLDERS IN THE FEDERAL COURT FOR THE EASTERN DISTRICT OF
ARKANSAS.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  FN2 TO ENFORCE THEIR
JUDGMENT, THESE CREDITORS THEN INSTITUTED PROCEEDINGS IN THE SAME
FEDERAL DISTRICT COURT, FOR MANDATORY INJUNCTION TO REQUIRE THE
APPROPRIATE COUNTY CLERKS TO EXTEND DRAINAGE BENEFIT TAXES FOR THE
DISTRICT UPON THEIR TAX BOOKS; TO REQUIRE COUNTY OFFICIALS TO COLLECT
THESE TAXES; AND TO PROVIDE THAT "IF ANY PROPERTY OWNERS FAIL TO PAY
THEIR DRAINAGE TAX THE DEFENDANT, KERSH LAKE DRAINAGE DISTRICT, AND ITS
COMMISSIONERS BE REQUIRED TO INSTITUTE SUIT FOR THE COLLECTION OF THE
DELINQUENT TAXES, AND TO PROSECUTE THE SAME WITH DUE DILIGENCE TO A
CONCLUSION, AND TO SEE THAT THE DELINQUENT LANDS ARE SOLD PROMPTLY
UNDER THE DECREES OF FORECLOSURE,  ...  "  ANSWERING, THE DISTRICT SET
UP AMONG OTHER DEFENSES THAT "A LARGE NUMBER OF TRACTS OF LAND IN THE
DISTRICT HAVE FULLY PAID THE ENTIRE VALUE OF ASSESSED BENEFITS AGAINST
SAID LANDS AND THAT SAID PROPERTY OWNERS OBTAINED A DECREE IN THE
LINCOLN CHANCERY COURT IN THE CASE OF W.A. FISH, ET AL. V. KERSH LAKE
DRAINAGE DISTRICT ON JUNE 15, 1932, ENJOINING AND RESTRAINING THE
COMMISSIONERS OF THE DEFENDANT DISTRICT FROM LEVYING OR EXTENDING ANY
TAX AGAINST THOSE LANDS, THE ASSESSED BENEFITS OF WHICH HAVE BEEN FULLY
PAID." 

THE DISTRICT COURT DECREED THAT A MANDATORY INJUNCTION ISSUE
COMPELLING THE "COUNTY CLERKS AND COUNTY COLLECTORS TO PERFORM THEIR
DUTIES IN THE COLLECTION OF THE DRAINAGE TAXES UPON THE LANDS IN SUIT";
THAT THERE BE EXTENDED TAXES "OF SIX AND ONE-HALF PER CENT OF THE
BENEFITS ASSESSED AGAINST EACH TRACT OF LAND  ...  UNTIL THE WHOLE OF
THIS DECREE HAS BEEN SATISFIED"; THAT THE "COMMISSIONERS  ...  BE
REQUIRED TO INSTITUTE SUITS FOR THE COLLECTION OF ALL DELINQUENT TAXES
OF SAID DISTRICT, AND TO PROSECUTE THE SAME WITH DUE DILIGENCE TO A
CONCLUSION,  ...  "; AND THAT "THE SAID COMMISSIONERS ARE DEEMED
RECEIVERS OF THIS COURT  ..."  AND THE CIRCUIT COURT OF APPEALS
AFFIRMED.  FN3 

PURSUANT TO THIS MANDATORY INJUNCTION, THE DRAINAGE TAXES WERE
EXTENDED ON THE TAX BOOKS BUT RESPONDENT JOHNSON AND OTHER LANDOWNERS
IN WHOSE FAVOR THE DECREES OF THE LINCOLN CHANCERY COURT HAD BEEN
RENDERED, REFUSED TO PAY.  SUIT FOR COLLECTION WAS FILED AGAINST THEIR
LANDS IN THE LINCOLN CHANCERY COURT BY THE COMMISSIONERS.  IN RELIANCE
UPON THE 1931 AND 1932 STATE CHANCERY COURT DECREES AS FINAL
DETERMINATIONS THAT THE ASSESSMENTS APPORTIONED TO THEIR RESPECTIVE
TRACTS OF LANDS HAD BEEN DISCHARGED, PLEAS OF RES JUDICATA WERE
INTERPOSED BY THE LANDOWNERS.  REFERRING TO THIS ANSWER OF THE
LANDOWNERS, THE COMMISSIONERS AMENDED THEIR COMPLAINT AND ALLEGED (1)
THAT THE STATE COURT DECREES OF 1931 AND 1932 WERE VOID BECAUSE
CERTIFICATE HOLDERS HAD NOT BEEN MADE PARTIES, AND (2) THAT THE
CERTIFICATE HOLDERS' JUDGMENT AGAINST THE DISTRICT AND THE MANDATORY
INJUNCTION DECREE OF THE FEDERAL COURT WERE "RES JUDICATA OF ALL THE
QUESTIONS  ...  RAISED BY THE" LANDOWNERS.  THE TRIAL COURT DECIDED
AGAINST THE LANDOWNERS, BUT THE SUPREME COURT OF ARKANSAS REVERSED AND
HELD THAT THE UNAPPEALED CHANCERY COURT DECREES IN 1931 AND 1932
AMOUNTED TO CONCLUSIVE ADJUDICATIONS THAT THE PARTICULAR LANDS HERE
INVOLVED WERE RESPONSIBLE FOR NO FURTHER BENEFIT TAXES, THUS SUSTAINING
THE LANDOWNERS' PLEAS OF RES JUDICATA.  FN4 

FIRST.  THE UNAPPEALED 1931 AND 1932 DECREES OF THE LINCOLN CHANCERY
COURT OF THE STATE OF ARKANSAS. 

AS STATED BY THE SUPREME COURT OF ARKANSAS, THE GENERAL JURISDICTION
OF THE LINCOLN CHANCERY COURT, UNDER THE STATE LAW, TO RENDER THE 1931
AND 1932 DECREES IS "ACKNOWLEDGED,"  FN5  AND THIS DETERMINATION BY THE
STATE'S HIGHEST COURT IS BINDING UPON US.  HOWEVER, PETITIONERS'
ARGUMENT IS THAT THESE DECREES WERE VOID BECAUSE CERTIFICATE HOLDERS
WERE NOT MADE PARTIES IN AND HAD NO NOTICE OF THE CHANCERY
PROCEEDINGS.  THEREFORE, THEY CONTEND THAT IN GIVING EFFECT TO THE
STATE COURT DECREES AND TREATING THEM AS RES JUDICATA IN THE PRESENT
PROCEEDING THE COURT BELOW DEPRIVED CERTIFICATE HOLDERS OF THEIR
PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT.  FN6  PETITIONERS ALSO ADD THE CONTENTION THAT THE 1932
STATE COURT DECREE WAS "COLLUSIVE AS A MATTER OF LAW." 

ALTHOUGH THE DRAINAGE DISTRICT WAS NOT IN TERMS LEGISLATIVELY
DECLARED TO BE A CORPORATION, ITS POWERS AND LIMITATIONS WERE SIMILAR
TO THOSE OF CORPORATIONS AND ITS COMMISSIONERS WERE COMPARABLE TO
CORPORATE DIRECTORS.  FN7  AMONG THE DUTIES OF THE COMMISSIONERS - AS
PROVIDED BY THE VERY STATUTE UPON WHICH THE CERTIFICATES INVOLVED HERE
REST - WERE THOSE OF PROTECTING AND ENFORCING CREDITORS' RIGHTS ON
OBLIGATIONS ISSUED BY THE DISTRICT.  FN8  AND THE COMMISSIONERS IN 1931
AND 1932 LITIGATED WITH THE LANDOWNERS THE DISPUTED QUESTION OF
PROPORTIONATE AMOUNTS OF TAXES DUE THE DISTRICT BY VIRTUE OF DRAINAGE
BENEFITS RECEIVED BY THE PARTICULAR TRACTS HERE IN QUESTION. 

WHEN THESE CERTIFICATES WERE ISSUED, PURCHASERS WERE CHARGED WITH
NOTICE OF AND BOUND BY ARKANSAS STATUTES IN EXISTENCE WHEN, AND
PURSUANT TO WHICH, THE DEBT WAS CONTRACTED AND WHICH PROVIDED FOR
DETERMINATION OF THE PROPORTIONATE LIABILITIES OF LANDS IN THE DISTRICT
BY CHANCERY PROCEEDINGS BETWEEN THE COMMISSIONERS AND LANDOWNERS WITH
NO REQUIREMENT OF NOTICE TO CREDITORS OF THE DISTRICT.  FN9  THUS, THE
VERY STATUTORY PLAN FROM WHICH THE CERTIFICATE OBLIGATIONS SPRANG
CONTEMPLATED THAT THE COMMISSIONERS SHOULD REPRESENT THE COLLECTIVE AND
CORPORATE INTERESTS OF THE DISTRICT, IN LITIGATION BETWEEN THE DISTRICT
AND A LANDOWNER INVOLVING MATTERS PERSONAL TO THE LANDOWNER. 

THESE CERTIFICATE HOLDERS WERE NOT ENTITLED TO BE MADE PARTIES IN THE
LINCOLN CHANCERY PROCEEDINGS, JUST AS IN PRACTICE CREDITORS OF A
CORPORATION ARE NOT, UNLESS OTHERWISE PROVIDED BY STATUTE, MADE PARTIES
IN A SUIT BETWEEN A STOCKHOLDER AND THE CORPORATION TO DETERMINE
LIABILITY ON A STOCK SUBSCRIPTION, BETWEEN THE CORPORATION AND A THIRD
PERSON TO RECOVER CORPORATE ASSETS, OR IN A SUIT BROUGHT AGAINST THE
CORPORATION BY CREDITORS, STOCKHOLDERS OR OFFICERS.  IT HAS BEEN HELD
THAT BONDHOLDERS ARE NOT NECESSARY PARTIES TO AND ARE BOUND BY THE
DECREE - EVEN IF ADVERSE TO THEIR INTERESTS - IN LITIGATION WHEREIN AN
INDENTURE TRUSTEE UNDER A BOND ISSUE IS A PARTY AND EXERCISES IN GOOD
FAITH AND WITHOUT NEGLECT HIS CONTRACTUAL AUTHORITY TO REPRESENT AND
ASSERT THE LIEN SECURING THE ISSUE.  FN10  AND SO ARE THESE PETITIONERS
BOUND BY THE DECREES IN THE CHANCERY SUIT IN WHICH THE COMMISSIONERS AS
PARTIES APPROPRIATELY ASSERTED THE LIEN FOR BENEFIT OF CERTIFICATE
HOLDERS - UNLESS THERE WAS FRAUD OR COLLUSION. 

IT IS SUFFICIENT TO STATE AS TO THIS CONTENTION THAT THE ISSUES OF
FRAUD AND COLLUSION RAISE NO QUESTIONS WHICH THE SUPREME COURT OF
ARKANSAS WAS NOT COMPETENT FINALLY TO DECIDE.  AND THE SUPREME COURT OF
ARKANSAS POINTS OUT THAT UNDER CONTROLLING ARKANSAS LAW THE CHANCERY
DECREES "COULD ONLY HAVE BEEN SET ASIDE ON APPEAL OR BY DIRECT ACTION
TO ANNUL THEM ON THE GROUND OF FRAUD, AND AS WE HAVE SAID NO APPEALS
WERE TAKEN, AND NO FRAUD ON THE COURT IN WHICH THE DECREES WERE
RENDERED, IS REFLECTED BY THIS RECORD."  FN11 

BUT PETITIONERS NEVERTHELESS INSIST THAT THE STATE COURT'S CHANCERY
DECREES CANNOT AVAIL THE LANDOWNERS BECAUSE OF THE SUBSEQUENT JUDGMENTS
OF THE FEDERAL DISTRICT COURT. 

SECOND.  THE JUDGMENTS OF THE FEDERAL DISTRICT COURT. 

PETITIONERS PLEADED THE FINAL JUDGMENTS OF THE FEDERAL DISTRICT COURT
AS CONCLUSIVE ADJUDICATIONS OF THE ISSUES RAISED BY THE LANDOWNERS'
DEFENSE BASED UPON THE CHANCERY DECREES.  THE REFUSAL OF THE COURT
BELOW TO ACCEPT THE DISTRICT COURT'S JUDGMENTS AS DETERMINATIVE OF THE
INDIVIDUAL LANDOWNERS' LIABILITIES CONSTITUTED, PETITIONERS CLAIM, A
DENIAL OF FULL FAITH AND CREDIT TO THOSE FEDERAL JUDGMENTS.  WITH THIS
CONTENTION WE DO NOT AGREE. 

IN ORDER THAT THE DISTRICT MIGHT BE AFFORDED A BASIS FOR SUITS IN THE
STATE COURTS TO RECOVER TAXES WITH WHICH TO PAY THE JUDGMENT AGAINST
IT, THE DISTRICT COURT ORDERED A MANDATORY INJUNCTION REQUIRING COUNTY
OFFICIALS TO EXTEND ON THEIR BOOKS DRAINAGE TAXES AGAINST ALL THE LANDS
IN THE DISTRICT AS A WHOLE, INCLUDING THOSE HERE INVOLVED.  THIS
PRELIMINARY TO STATE COURT SUITS IN WHICH THE ACTUAL RESPECTIVE
LIABILITIES OF THE INDIVIDUAL LANDOWNERS COULD BE DETERMINED WAS
PERFORMED, AND THEREBY THIS PROVISION OF THE INJUNCTION WAS CARRIED
OUT.  THE COMMISSIONERS WERE ALSO ENJOINED TO FILE AND PROSECUTE SUITS
IN THE STATE COURTS TO COLLECT ALL SUCH TAXES THAT WERE DELINQUENT. 
THIS WAS DONE.  IRRESPECTIVE OF WHETHER THE DISTRICT WAS EMPOWERED TO
REPRESENT THE LANDOWNERS WHEN THE EXTENSION OF TAXES AS A WHOLE WAS
ORDERED, BY ITS MANDATORY INJUNCTION THE DISTRICT COURT DID NOT ATTEMPT
TO FORECLOSE THE STATE COURT FROM HEARING ALL MATTERS OF PERSONAL
DEFENSE WHICH INDIVIDUAL LANDOWNERS MIGHT PLEAD IN THE SUITS FOR
COLLECTION.  INSTEAD, THE DISTRICT COURT APPROPRIATELY LEFT FOR THE
STATE COURT'S DETERMINATION ANY SUCH PERSONAL DEFENSES AVAILABLE UNDER
ARKANSAS LAW.  FN12  AND HERE THE SUPREME COURT OF ARKANSAS HAS
SUSTAINED AS PERSONAL DEFENSES THE DECREES OF PAYMENT AND DISCHARGE
OBTAINED BY INDIVIDUAL LANDOWNERS IN ARKANSAS COURTS OF COMPETENT
JURISDICTION.  ACCORDINGLY, PETITIONERS MISCONSTRUE ENTIRELY THE DECREE
OF THE DISTRICT COURT IN ARGUING THAT UNLESS ITS INJUNCTION IS CARRIED
OUT WITHOUT ANY REFERENCE TO THE PRIOR STATE COURT DECREES, INJUNCTIONS
BY A STATE COURT WILL BE PERMITTED TO OBSTRUCT THE EXECUTION OF A
FEDERAL COURT'S JUDGMENT.  FN13  IN VIEW OF OUR CONSTRUCTION OF THE
MANDATORY INJUNCTION AND THE FACT THAT ITS MANDATES HAVE BEEN FULLY
CARRIED OUT, IT IS UNNECESSARY FOR US TO CONSIDER THE EXISTENCE OR
PRESENT VITALITY OF THE DOCTRINE SAID TO BE ESTABLISHED BY THE CASES
RELIED UPON BY PETITIONERS.  FN14    THE SUBSTANTIAL EFFECT OF THE
DISTRICT COURT'S JUDGMENTS WAS NO MORE THAN A DETERMINATION THAT A
TOTAL BALANCE WAS STILL DUE THE COMPLAINING CERTIFICATE HOLDERS BY THE
DISTRICT; THAT DRAINAGE TAXES SUFFICIENT TO DISCHARGE THIS BALANCE
SHOULD BE EXTENDED ON THE PROPER COUNTY TAX BOOKS IN ACCORDANCE WITH
ARKANSAS LAW; AND THAT SUITS AGAINST INDIVIDUAL LANDOWNERS BE FILED FOR
JUDICIAL ASCERTAINMENT OF THEIR PROPORTIONATE SHARES OF THE TOTAL. 
NEITHER THE ADJUDICATION OF THE TOTAL LIABILITY NOR THE ORDER FOR
EXTENSION OF DRAINAGE TAXES ON THE LOCAL TAX BOOKS WAS AN ADJUDICATION
OF THE VARYING PROPORTIONATE LIABILITIES OF THE RESPECTIVE LANDOWNERS. 
DETERMINATION OF THESE LIABILITIES WAS PROPERLY LEFT FOR THE STATE
COURT.  A DECREED TOTAL LIABILITY FOR THE DISTRICT WAS STILL CONSISTENT
WITH THE PRINCIPLE THAT "WHEN THE PROPORTION (TAXABLE AGAINST A
PARTICULAR TRACT) IS ASCERTAINED AND PAID, IT IS NO LONGER OR FURTHER
LIABLE.  IT IS DISCHARGED.  THE RESIDUE OF THE TAX IS TO BE OBTAINED
FROM OTHER SOURCES."  FN15 

THESE LANDOWNERS WERE NEITHER SERVED WITH PROCESS NOR HEARD IN EITHER
THE CERTIFICATE HOLDERS' SUIT AGAINST THE DISTRICT OR THE MANDATORY
INJUNCTION PROCEEDING.  NO RELIEF AGAINST THEM AS INDIVIDUALS WAS
EITHER SOUGHT OR ADJUDGED.  THE COMMISSIONERS DID REPRESENT ALL
LANDOWNERS IN UNSUCCESSFULLY DEFENDING THE CERTIFICATE HOLDERS' SUIT
FOR AN ADJUDICATION OF THE TOTAL COLLECTIVE CORPORATE OBLIGATION OF THE
DISTRICT AS AN ENTITY.  IN THE PRESENT SUIT THE LANDOWNERS HAVE NOT
ASSERTED, AND THE SUPREME COURT OF ARKANSAS HAS NOT UPHELD, ANY ATTACK
UPON THAT JUDGMENT, WHICH MIGHT BE VALID ALTHOUGH UNCOLLECTIBLE AGAINST
THE DISTRICT OR ANY INDIVIDUAL LANDOWNERS.  FN16 THE FACT THAT THE
COMMISSIONERS, IN THE INJUNCTION PROCEEDINGS AGAINST THE DISTRICT,
UNSUCCESSFULLY ATTEMPTED TO INTERPOSE DEFENSES PECULIAR AND PERSONAL TO
THE INDIVIDUAL LANDOWNERS CANNOT FORECLOSE THE INDIVIDUAL LANDOWNERS,
WHO WERE NOT PRESENT, FROM THEREAFTER PLEADING A DEFENSE OTHERWISE
VALID.  CERTAINLY, THE DECREE IN THE INJUNCTION SUIT IN THE FEDERAL
COURT WOULD NOT PREVENT AN INDIVIDUAL PROPERTY OWNER FROM SUBSEQUENTLY
INTERPOSING THE DEFENSE THAT HIS PROPERTY WAS NOT IN FACT INCLUDED
WITHIN THE DRAINAGE DISTRICT.  FN17  COGNATE PERSONAL DEFENSES, SUCH AS
THE ONE THAT A LANDOWNER'S PROPORTIONATE DRAINAGE TAX LIABILITY HAS
BEEN DECLARED BY THE JUDGMENT OF A COMPETENT TRIBUNAL TO HAVE BEEN
"ASCERTAINED AND PAID," WERE NOT FORECLOSED BY THE FEDERAL DISTRICT
COURT'S JUDGMENTS. 

THE JUDGMENTS OF THE FEDERAL COURT WERE NOT DENIED FULL FAITH AND
CREDIT BY THE SUPREME COURT OF ARKANSAS.  AFFIRMED. 

FN1  ACTS OF ARK. 1909, P. 829. 

FN2  85 F.2D 643. 

FN3  92 F.2D 783. 

FN4  198 ARK. 743; 131 S.W.2D 620; 132 S.W.2D 658. 

FN5  CF. PROTHO V. WILLIAMS, 147 ARK. 535, 547; 229 S.W. 38. 

FN6  BECAUSE OF THIS AND THE FURTHER CONTENTION THAT THE SUPREME
COURT OF ARKANSAS HAD DENIED FULL FAITH AND CREDIT TO THE JUDGMENTS OF
THE FEDERAL DISTRICT COURT, CERTIORARI WAS GRANTED. 

FN7  SEE, E.G., REFERENCE TO "THE BOARD OF DIRECTORS," ACTS OF ARK.
1909, P. 849. 

FN8  THE ACT OF 1909 SET UP DETAILED STANDARDS FOR CREATION AND
CONTROL OF THE DISTRICT; PROVIDED FOR MANAGEMENT OF DISTRICT AFFAIRS BY
A BOARD OF COMMISSIONERS UNDER OUTLINED SUPERVISION BY ARKANSAS COURTS;
AND INTRUSTED THE COMMISSIONERS WITH THE CONDUCT AND CONTROL OF
LITIGATION FOR THE COLLECTION AND ENFORCEMENT OF UNPAID BENEFITS
AGAINST LANDS IN THE DISTRICT.  SUCH LITIGATION WAS REQUIRED TO BE
CONDUCTED IN THE STATE CHANCERY COURT HAVING JURISDICTION IN THE COUNTY
WHERE THE PARTICULAR LANDS WERE LOCATED; AND THE LANDS COVERED BY THE
1931-1932 LINCOLN CHANCERY COURT DECREES WERE LOCATED IN LINCOLN
COUNTY.  ARKANSAS ACTS 1909, P. 829. 

FN9  REES V. CITY OF WATERTOWN, 19 WALL.  107, 120; UNITED STATES V.
COUNTY OF MACON, 99 U.S. 582, 590. 

FN10  ELWELL V. FOSDICK, 134 U.S. 500, 512, 513; RICHTER V. JEROME,
123 U.S. 233, 246-7. 

FN11  198 ARK. 743, 753; 131 S.W.2D 620, 625; 132 S.W.2D 658. 

FN12  CF. ARKANSAS V. ST. LOUIS-SAN FRANCISCO RY. CO., 269 U.S. 172,
176; CHANDLER V. PEKETZ, 297 U.S. 609, 611. 

FN13  PETITIONERS RELY UPON RIGGS V. JOHNSON COUNTY, 6 WALL.  166;
UNITED STATES V. COUNCIL OF KEOKUK, ID., 514; THE MAYOR V. LORD, 9
WALL.  409; THE SUPERVISORS V. DURANT, ID., 415; HAWLEY V. FAIRBANKS,
108 U.S. 543. 

FN14  BUT SEE ERIE R. CO. V. TOMPKINS, 304 U.S. 64, 78 AND RUHLIN V.
NEW YORK LIFE INS. CO., ID., 202, 205. 

FN15  REES V. CITY OF WATERTOWN, SUPRA, 119-20. 

FN16  BARKLEY V. LEVEE COMMISSION, 93 U.S. 258, 265-6. 

FN17  OCEAN BEACH HEIGHTS, INC. V. BROWN-CRUMMER INVESTMENT CO., 302
U.S. 614.  CF. NORMANDY BEACH DEV.  CO. V. UNITED STATES, 69 F.2D 105. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :















UNITED STATES V. SHAW, 309 U.S. 495 


NO. 570.  ARGUED FEBRUARY 27, 1940.  - DECIDED MARCH 25, 1940.  - 290
MICH. 311 - 287 N.W. 477, REVERSED. 


1.  A SUIT AGAINST THE UNITED STATES MAY BE BROUGHT ONLY WITH CONSENT
GIVEN, AND IN THE COURTS DESIGNATED, BY STATUTE.  P. 500. 

2.  THE UNITED STATES, BY FILING A CLAIM AGAINST AN ESTATE IN A STATE
PROBATE PROCEEDING, DOES NOT SUBJECT ITSELF TO A BINDING, THOUGH NOT
ENFORCIBLE, ASCERTAINMENT AND ALLOWANCE OF A CROSS-CLAIM AGAINST
ITSELF, IN EXCESS OF SET-OFF.  THE THEKLA, 266 U.S. 328,
DISTINGUISHED.  PP. 501-504. 

3.  BY TAKING OVER THE ASSETS OF THE FLEET CORPORATION AND ASSUMING
ITS OBLIGATIONS, THE UNITED STATES DID NOT WAIVE ITS IMMUNITY FROM SUIT
IN A STATE COURT ON A COUNTER-CLAIM BASED ON THE CORPORATION'S BREACH
OF CONTRACT.  P. 505. 

UNITED STATES V. SHAW, ADMINISTRATOR DE BONIS NON. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

CERTIORARI, 308 U.S. 548, TO REVIEW THE AFFIRMANCE OF A DECREE IN
PROBATE HOLDING THE UNITED STATES INDEBTED TO A DECEDENT'S ESTATE ON A
COUNTER-CLAIM. 

THE PROBATE COURT'S ORDER IS A JUDICIAL ASCERTAINMENT OR
DETERMINATION OF THE AMOUNT OWING AND DOES NOT CONSTITUTE A MONEY
JUDGMENT AGAINST THE UNITED STATES.  UNITED STATES V. ECKFORD, 6 WALL. 
487; THE GLORIA, 286 F. 188.  CF., UNITED STATES V. NATIONAL CITY BANK,
83 F.2D 236, CERT. DEN.  299 U.S. 563; S.C. 4 F.SUPP.  417. 

THE ORDER WAS PROPER UNDER THE DECISIONS OF THIS COURT.  UNITED
STATES V. THE THEKLA, 266 U.S. 328. 

THE UNITED STATES VOLUNTARILY ENTERED A STATE COURT HAVING
JURISDICTION IN REM OVER THE RES OF AN ESTATE AND ASSERTED, IN
ACCORDANCE WITH THE LOCAL STATUTORY PRACTICE, A CLAIM AGAINST THE RES.
IN ACCORDANCE WITH THE MANDATORY REQUIREMENTS OF THE SAME LOCAL
PRACTICE, A COUNTER-CLAIM WAS DULY ASSERTED AND IT WAS THEREAFTER
UPHELD ON THE MERITS.  THERE IS NO ESSENTIAL DIFFERENCE BETWEEN THE ACT
OF JOINING IN SUIT IN THE ONE CASE AND THE ACT OF ENTRY INTO COURT FOR
ASSERTION OF CLAIM IN THE PRESENT CASE.  THE PRINCIPLE OF THE THEKLA IS
APPLICABLE TO PROCEEDINGS INSTITUTED BY THE GOVERNMENT IN MODERN COURTS
OF LAW, EQUITY AND ADMIRALTY.  SEE AMERICAN PROPELLER CO. V. UNITED
STATES, 300 U.S. 475; UNITED STATES V. NATIONAL CITY BANK, 83 F.2D 236;
CERT. DEN.  299 U.S. 563; GUARANTY TRUST CO. V. UNITED STATES, 304 U.S.
126; THE GLORIA, 286 F. 188, 200; DEXTER AND CARPENTER V. KUNGLIG
JARNVAGSSTYRELLSEN, 43 F.2D 708; UNITED STATES V. AMERICAN DITCH ASSN.,
2 F.SUPP.  868; UNITED STATES V. STANDARD OIL CO., 21 F.2D 655; THE
BARBARA CATES, 17 F. 244; UNITED STATES V. EAST, 80 F.2D 134; UNITED
STATES V. MOSCOW-IDAHO SEED CO., 14 F.SUPP.  135; UNITED STATES V.
EQUITABLE TRUST CO., 283 U.S. 745. 

CF., DANFORTH V. UNITED STATES, 102 F.2D 5; 308 U.S. 271. 

FOR THE PURPOSES OF THE JURISDICTIONAL QUESTION DEALT WITH IN THE
THEKLA, A LIBEL IN ADMIRALTY IS LIKE A BILL FOR AN ACCOUNT, GOLDTHWAIT
V. DAY, 149 MASS. 185, 187; AND EVEN MORE LIKE A CLAIM AGAINST THE RES
OF AN ESTATE IN CHARGE OF A COURT, FOOTE V. FOOTE, 61 MICH. 192. 

THE DOCTRINE OF THE THEKLA HAS SINCE AIDED DECISION IN UNITED STATES
V. NATIONAL CITY BANK, 83 F.2D 236; CERT. DEN.  299 U.S. 563; AMERICAN
PROPELLER CO. V. UNITED STATES, 300 U.S. 476; GUARANTY TRUST CO. V.
UNITED STATES, 304 U.S. 134; UNITED STATES V. U.S. FIDELITY & GUARANTY
CO., 106 F.2D 804.  SEE KEIFER & KEIFER V. RECONSTRUCTION FINANCE
CORP., 306 U.S. 381. 

IMMUNITY FROM AFFIRMATIVE JUDGMENT OR JUDICIAL ASCERTAINMENT IN THIS
CASE, IF ANY, WAS WAIVED WHEN THE UNITED STATES, HAVING ALREADY TAKEN A
GENERAL ASSIGNMENT OF ASSETS AND RECEIVABLES FROM THE FLEET
CORPORATION, DISSOLVED THE LATTER AND ASSUMED ITS OBLIGATIONS, BY THE
ACT OF JUNE 29, 1936. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

IN 1918 SYDNEY C. MCLOUTH CONTRACTED TO CONSTRUCT NINE TUGS FOR THE
UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.  ON MAY 24,
1920, THE CONTRACT WAS CANCELLED AND THE PARTIES ENTERED INTO A
SETTLEMENT AGREEMENT PROVIDING THAT MCLOUTH WAS TO KEEP AS BAILEE
CERTAIN MATERIALS FURNISHED HIM FOR USE IN BUILDING THE TUGS AND THAT
THE FLEET CORPORATION WAS TO ASSUME CERTAIN OF MCLOUTH'S SUBCONTRACTS
AND COMMITMENTS.  AMONG THE COMMITMENTS ASSUMED WAS A CONTRACT OF
MCLOUTH'S TO PURCHASE LUMBER FROM THE INGRAM-DAY LUMBER COMPANY.  THE
LUMBER COMPANY OBTAINED A JUDGMENT AGAINST MCLOUTH FOR $42,789.96 FOR
BREACH OF THIS CONTRACT,  FN1  AND, MCLOUTH HAVING DIED IN 1923, FILED
ITS CLAIM ON THE JUDGMENT IN THE PROBATE COURT OF ST. CLAIR COUNTY,
MICHIGAN.  SUBSEQUENTLY THE UNITED STATES OBTAINED A JUDGMENT OF
$40,165.48 AGAINST MCLOUTH'S ADMINISTRATOR, 

FN2  REPRESENTING DAMAGES FOR THE CONVERSION OF THE MATERIALS LEFT
WITH MCLOUTH AS BAILEE, AND CLAIM ON THIS JUDGMENT WAS FILED IN THE
PROBATE COURT.  THE ADMINISTRATOR, RESPONDENT HERE, HAVING PRESENTED
WITHOUT SUCCESS THE LUMBER COMPANY'S JUDGMENT TO THE GENERAL ACCOUNTING
OFFICE,  FN3 SOUGHT TO SET OFF THAT JUDGMENT AGAINST THE JUDGMENT OF
THE UNITED STATES.  THE PROBATE COURT ALLOWED THE CLAIM OF THE UNITED
STATES AND DENIED THE SET-OFF, BUT ITS RULING AS TO THE SET-OFF WAS
REVERSED ON APPEAL TO THE MICHIGAN SUPREME COURT.  FN4  THE
ADMINISTRATOR THEN PETITIONED THE PROBATE COURT TO GRANT STATUTORY
JUDGMENT OF THE BALANCE DUE THE ESTATE.  THE COURT FOUND THAT THE CLAIM
OF THE UNITED STATES, WITH INTEREST, AMOUNTED TO $49,442.41 AND THE
LUMBER COMPANY'S CLAIM TO $73,071.38 AND "ORDERED, ADJUDGED AND
ASCERTAINED" THAT THE UNITED STATES WAS INDEBTED TO THE ESTATE FOR THE
DIFFERENCE, $23,628.97, "AND THAT SUCH INDEBTEDNESS BE AND THE SAME IS
HEREBY ALLOWED AS AND DETERMINED TO BE A PROPER CLAIM WHICH IS OWING TO
SAID ESTATE BY THE UNITED STATES OF AMERICA."  THE PROBATE COURT'S
JUDGMENT WAS AFFIRMED ON APPEAL.  FN5 

ON THIS CERTIORARI WE ARE CONCERNED WITH THE QUESTION WHETHER THE
UNITED STATES BY FILING A CLAIM AGAINST AN ESTATE IN A STATE COURT
SUBJECTS ITSELF, IN ACCORDANCE WITH LOCAL STATUTORY PRACTICE, TO A
BINDING, THOUGH NOT IMMEDIATELY ENFORCEABLE, ASCERTAINMENT AND
ALLOWANCE BY THE STATE COURT OF A CROSS-CLAIM AGAINST ITSELF. 

BECAUSE OF DIFFERENT VIEWS OF OTHER FEDERAL COURTS AS TO THE
DECISIONS OF THIS COURT IN THE IMPORTANT FEDERAL FIELD OF CROSS-CLAIMS
AGAINST THE UNITED STATES,  FN6  WE GRANTED CERTIORARI.  FN7  UNITED
STATES V. UNITED STATES FIDELITY & GUARANTY COMPANY  FN8  INVOLVES THIS
QUESTION. 

THE STATUTE OF MICHIGAN UNDER WHICH THIS ASCERTAINMENT OF
INDEBTEDNESS WAS MADE, SO FAR AS PERTINENT, IS SET OUT IN THE
FOOTNOTE.  FN9  THERE IS NO CONTENTION ON THE PART OF RESPONDENT THAT
THE JUDGMENT IS ENFORCEABLE AGAINST THE UNITED STATES EVEN IN THE
LIMITED SENSE OF STATUTORY DIRECTION TO REPORT THE JUDGMENT TO CONGRESS
AS IN THE COURT OF CLAIMS ACT  FN10  OR THE MERCHANT MARINE ACT.  FN11
EXECUTION AGAINST PROPERTY OF GOVERNMENTAL AGENCIES SUBJECTED TO SUCH
PROCEDURE BY STATUTE IS SOMETIMES ALLOWED.  FN12  THE POSITION TAKEN IS
THAT THE PROBATE COURT JUDGMENT IS A "FINAL DETERMINATION" OF THE
RIGHTS OF THE LITIGANTS, HOWSOEVER SUCH RIGHTS MAY LATER BECOME
IMPORTANT.  WE ARE NOT HERE CONCERNED WITH THE MANNER OF COLLECTION. 
SUCH WAS THE HOLDING OF THE SUPREME COURT OF MICHIGAN.  FN13 

THE STATE PROCEDURE FOR THE DETERMINATION OF THE BALANCE AGAINST OR
IN FAVOR OF AN ESTATE, WHICH WAS EMPLOYED HERE, WAS THE RECOGNIZED
METHOD OF CLOSING AN ESTATE AT THE TIME OF THE PROBATE JUDGMENT.  THE
PROBATE JUDGE WAS EMPOWERED TO ACT AS COMMISSIONER UNDER THE STATUTE
QUOTED ABOVE.  FN14  HIS DECISION UNREVIEWED WAS CONSIDERED FINAL. 
FN15  THE DETERMINATION OF THE PROBATE COURT BETWEEN PRIVATE PARTIES
WAS ENFORCEABLE WITHOUT REEXAMINATION IN THE CIRCUIT COURT.  FN16 EVEN
THE RIGHT TO EXECUTION IS NOT ESSENTIAL TO A COMPLETE JUDICIAL
PROCESS.  FN17  THE ORDER ENTERED WAS A FINAL DETERMINATION OF THE
AMOUNTS DUE THE ESTATE BY THE UNITED STATES ON THIS CLAIM AND CROSS
CLAIM IF THE PROBATE COURT HAD JURISDICTION TO RENDER THE ORDER AGAINST
THE PETITIONER. 

WHETHER THAT JURISDICTION EXISTS DEPENDS UPON THE EFFECT OF THE
VOLUNTARY SUBMISSION TO THE MICHIGAN COURT BY THE UNITED STATES OF ITS
CLAIM AGAINST THE ESTATE.  AS A FOUNDATION FOR THE EXAMINATION OF THAT
QUESTION WE MAY LAY THE POSTULATE THAT WITHOUT SPECIFIC STATUTORY
CONSENT, NO SUIT MAY BE BROUGHT AGAINST THE UNITED STATES.  FN18  NO
OFFICER BY HIS ACTION CAN CONFER JURISDICTION.  FN19  EVEN WHEN SUITS
ARE AUTHORIZED THEY MUST BE BROUGHT ONLY IN DESIGNATED COURTS.  FN20
THE REASONS FOR THIS IMMUNITY ARE IMBEDDED IN OUR LEGAL PHILOSOPHY. 
THEY PARTAKE SOMEWHAT OF DIGNITY AND DECORUM, SOMEWHAT OF PRACTICAL
ADMINISTRATION, SOMEWHAT OF THE POLITICAL DESIRABILITY OF AN
IMPREGNABLE LEGAL CITADEL WHERE GOVERNMENT AS DISTINCT FROM ITS
FUNCTIONARIES MAY OPERATE UNDISTURBED BY THE DEMANDS OF LITIGANTS.  A
SENSE OF JUSTICE HAS BROUGHT A PROGRESSIVE RELAXATION BY LEGISLATIVE
ENACTMENTS OF THE RIGOR OF THE IMMUNITY RULE.  AS REPRESENTATIVE
GOVERNMENTS ATTEMPT TO AMELIORATE INEQUALITIES AS NECESSITIES WILL
PERMIT, PREROGATIVES OF THE GOVERNMENT YIELD TO THE NEEDS OF THE
CITIZEN.  BY THE ACT OF MARCH 3, 1797, AND ITS SUCCESSOR LEGISLATION,
AS INTERPRETED BY THIS COURT, CROSS-CLAIMS ARE ALLOWED TO THE AMOUNT OF
THE GOVERNMENT'S CLAIM, WHERE THE GOVERNMENT VOLUNTARILY SUES.  FN21
SPECIALLY DESIGNATED CLAIMS AGAINST THE UNITED STATES MAY BE SUED UPON
IN THE COURT OF CLAIMS OR THE DISTRICT COURTS UNDER THE TUCKER ACT. 
FN22  SPECIAL GOVERNMENT ACTIVITIES, SET APART AS CORPORATIONS OR
INDIVIDUAL AGENCIES, HAVE BEEN MADE SUABLE FREELY.  WHEN AUTHORITY IS
GIVEN, IT IS LIBERALLY CONSTRUED.  FN23 AS TO THESE MATTERS NO
CONTROVERSY EXISTS. 

RESPONDENT CONTENDS THIS IMMUNITY EXTENDS, HOWEVER, ONLY TO ORIGINAL
SUITS; THAT WHEN A SOVEREIGN VOLUNTARILY SEEKS THE AID OF THE COURTS
FOR COLLECTION OF ITS INDEBTEDNESS IT TAKES THE FORM OF A PRIVATE
SUITOR AND THEREBY SUBJECTS ITSELF TO THE FULL JURISDICTION OF THE
COURT.  THE PRINCIPLE OF A SINGLE ADJUDICATION IS STRESSED, AS IS THE
NECESSITY FOR A COMPLETE EXAMINATION INTO THE CROSS-CLAIM, DESPITE
ATTENDANT DISLOCATION OF GOVERNMENT BUSINESS BY THE APPEARANCE OF
IMPORTANT OFFICERS AT DISTANT POINTS AND THE PRODUCTION OF DOCUMENTS AS
EVIDENCE, TO JUSTIFY THE ALLOWANCE OF AN OFFSET TO THE GOVERNMENT'S
CLAIM.  FN24  IT IS POINTED OUT THAT SURPRISE IS NOT INVOLVED AS NO
CROSS-CLAIM MAY BE PROVEN UNTIL AFTER SUBMISSION TO AND REFUSAL BY THE
GOVERNMENT ACCOUNTING OFFICERS.  FN25  RESPONDENT FURTHER INSISTS THAT
HIS POSITION IS SUPPORTED BY THE THEKLA  FN26  AND SUBSEQUENT DECISIONS
QUOTING ITS LANGUAGE.  FN27  EMPHASIS IS PLACED UPON THE FACT THAT
THESE PROBATE PROCEEDINGS ARE IN REM OR QUASI IN REM  FN28  AS WERE THE
LIBELS IN ADMIRALTY IN THE THEKLA. 

IT IS NOT OUR RIGHT TO EXTEND THE WAIVER OF SOVEREIGN IMMUNITY MORE
BROADLY THAN HAS BEEN DIRECTED BY THE CONGRESS.  WE, OF COURSE,
INTIMATE NO OPINION AS TO THE DESIRABILITY OF FURTHER CHANGES.  THAT IS
IMMATERIAL.  AGAINST THE BACKGROUND OF COMPLETE IMMUNITY WE FIND NO
CONGRESSIONAL ACTION MODIFYING THE IMMUNITY RULE IN FAVOR OF CROSS
ACTIONS BEYOND THE AMOUNT NECESSARY AS A SET-OFF. 

THE THEKLA TURNS UPON A RELATIONSHIP CHARACTERISTIC OF CLAIMS FOR
COLLISION IN ADMIRALTY BUT ENTIRELY ABSENT IN CLAIMS AND CROSS-CLAIMS
IN SETTLEMENT OF ESTATES.  THE SUBJECT MATTER OF A SUIT FOR DAMAGES IN
COLLISION IS NOT THE VESSEL LIBELLED BUT THE COLLISION.  LIBELS AND
CROSS-LIBELS FOR COLLISION ARE ONE LITIGATION AND GIVE RISE TO ONE
LIABILITY.  FN29  IN EQUAL FAULT, THE ENTIRE DAMAGE IS DIVIDED.  AS A
CONSEQUENCE WHEN THE UNITED STATES LIBELS THE VESSEL OF ANOTHER FOR
COLLISION DAMAGES AND A CROSS-LIBEL IS FILED, IT IS NECESSARY TO
DETERMINE THE CROSS-LIBEL AS WELL AS THE ORIGINAL LIBEL TO REACH A
CONCLUSION AS TO LIABILITY FOR THE COLLISION.  THAT CONCLUSION MUST BE
STATED IN TERMS OF RESPONSIBILITY FOR DAMAGES.  IN THE THEKLA OPINION
THE CASES OF ILLINOIS CENTRAL R. CO. V. PUBLIC UTILITIES COMMISSION
FN30  AND NASSAU SMELTING WORKS V. UNITED STATES  FN31  WERE CITED IN
SUPPORT OF THE STATEMENT THAT "  ...  GENERALLY SPEAKING A CLAIM THAT
WOULD NOT CONSTITUTE A CAUSE OF ACTION AGAINST THE SOVEREIGN CANNOT BE
ASSERTED AS A COUNTERCLAIM."  THIS COURT THEN SAID:  "WE DO NOT QUALIFY
THE FOREGOING DECISIONS IN ANY WAY."  IN THE SMELTING CASE THIS COURT
HAD SAID, TWO WEEKS BEFORE, ON A CERTIFICATE AS TO THE JURISDICTION OF
THE DISTRICT COURT TO CONSIDER A COUNTERCLAIM: 

"THE OBJECTION TO A SUIT AGAINST THE UNITED STATES IS FUNDAMENTAL,
WHETHER IT BE IN THE FORM OF AN ORIGINAL ACTION OR A SET-OFF OR A
COUNTERCLAIM.  JURISDICTION IN EITHER CASE DOES NOT EXIST UNLESS THERE
IS SPECIFIC CONGRESSIONAL AUTHORITY FOR IT.  NOR IS THERE DOUBT THAT
THE QUESTION IS ONE WHICH INVOLVES THE JURISDICTION OF THE DISTRICT
COURT AS A FEDERAL COURT UNDER THE STATUTES OF THE UNITED STATES, FOR
THE JURISDICTION OF THE DISTRICT COURT IN THIS REGARD IS WHOLLY
DEPENDENT ON SUCH STATUTES."  FN32 

THERE IS LITTLE INDICATION IN THE FACTS OR LANGUAGE OF THE THEKLA TO
INDICATE AN INTENTION TO PERMIT GENERALLY UNLIMITED CROSS-CLAIMS. 
QUOTATIONS FROM THE THEKLA IN LATER OPINIONS OF THIS COURT ARE USED TO
ILLUSTRATE PROBLEMS ENTIRELY APART FROM THE ONE UNDER CONSIDERATION
HERE.  FN33 

THE SUGGESTION THAT THE ORDER OF THE PROBATE COURT IS IN REALITY NOT
A JUDGMENT BUT ONLY A "JUDICIAL ASCERTAINMENT" OF CREDITS DOES NOT
AFFECT OUR CONCLUSION.  NO JUDGMENT AGAINST THE UNITED STATES IS MORE
THAN THAT.  BUT SUCH AN ENTRY, IF WITHIN THE COMPETENCE OF THE COURT
PASSING THE ORDER, WOULD BE RES JUDICATA OF THE ISSUE OF INDEBTEDNESS. 
FN34  THE SUGGESTION SPRINGS FROM THE OPINION IN UNITED STATES V.
ECKFORD.  FN35  THESE WORDS THERE APPEAR: 

"WITHOUT EXTENDING THE ARGUMENT, WE ADOPT THE VIEWS EXPRESSED BY THIS
COURT IN THE CASE OF DE GROOT V. UNITED STATES, (5 WALL.  432) DECIDED
AT THE LAST TERM, THAT WHEN THE UNITED STATES IS PLAINTIFF AND THE
DEFENDANT HAS PLEADED A SET-OFF, WHICH THE ACTS OF CONGRESS HAVE
AUTHORIZED HIM TO DO, NO JUDGMENT CAN BE RENDERED AGAINST THE
GOVERNMENT, ALTHOUGH IT MAY BE JUDICIALLY ASCERTAINED THAT, ON STRIKING
A BALANCE OF JUST DEMANDS, THE GOVERNMENT IS INDEBTED TO THE DEFENDANT
IN AN ASCERTAINED AMOUNT."    THE COURT HAD JUST WRITTEN THAT NO ACTION
COULD BE SUSTAINED AGAINST THE GOVERNMENT WITHOUT CONSENT AND THAT TO
PERMIT A DEMAND IN SET-OFF TO BECOME THE FOUNDATION OF A JUDGMENT WOULD
BE THE SAME THING AS SUSTAINING THE PROSECUTION OF A SUIT.  FN36 THE
LANGUAGE QUOTED ABOVE MEANS NO MORE THAN THAT NO JUDGMENT MAY BE
ENTERED AGAINST THE GOVERNMENT EVEN THOUGH THE COURT HAS ASCERTAINED,
THROUGH ITS PROCESSES, THAT THE GOVERNMENT IS ACTUALLY INDEBTED TO THE
DEFENDANTS.  THE JUDGMENT SHOULD BE LIMITED TO A DISMISSAL OF THE
GOVERNMENT'S CLAIM. 

IN THE ECKFORD CASE THIS COURT WAS DEALING WITH THE LITIGATION AT A
MORE ADVANCED STAGE THAN THE PRESENT LITIGATION HAS REACHED.  THE
UNITED STATES HAD SUED ECKFORD'S EXECUTORS ON HIS BOND IN THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.  THEY PLEADED A SET-OFF, A
BALANCE WAS FOUND IN THEIR FAVOR AND A JUDGMENT ENTERED THAT THE
EXECUTORS WERE ENTITLED TO BE PAID THE AMOUNT FOUND.  SUIT IN THE COURT
OF CLAIMS WAS INSTITUTED BY THE EXECUTORS, THE RECORD WAS PROVEN, OVER
OBJECTION, AND JUDGMENT ENTERED ACCORDINGLY.  CONSEQUENTLY A REVERSAL
OF THE COURT OF CLAIMS WAS THE ONLY STEP NECESSARY.  THIS COURT DID NOT
DEAL WITH THE NEW YORK JUDGMENT.  FN37 

WE HAVE CONSIDERED RESPONDENT'S FURTHER ARGUMENT THAT SOVEREIGN
IMMUNITY WAS WAIVED WHEN THE UNITED STATES TOOK POSSESSION OF THE
ASSETS OF ITS AGENT THE FLEET CORPORATION PRIOR TO THE INSTITUTION OF
THIS ACTION, AND LATER, BUT PRIOR TO THE ENTRY OF THE PROBATE JUDGMENT
APPEALED FROM, ASSUMED THE CORPORATION'S OBLIGATIONS BY THE ACT OF JUNE
29, 1936.  FN38  WE SEE NOTHING IN THESE TRANSACTIONS WHICH INDICATES
AN INTENTION TO WAIVE THE IMMUNITY OF THE UNITED STATES IN THE STATE
COURTS.  REVERSED. 

FN1  INGRAM-DAY CO. V. MCLOUTH, 275 U.S. 471. 

FN2  SHAW V. UNITED STATES, 75 F.2D 175. 

FN3 THE ACT OF MARCH 3, 1797, 1 STAT. 512, 514, AS AMENDED, 28 U.S.C.
SEC. 774, PROVIDES THAT IN "SUITS BROUGHT BY THE UNITED STATES AGAINST
INDIVIDUALS, NO CLAIM FOR A CREDIT SHALL BE ADMITTED  ...  EXCEPT SUCH
AS APPEAR TO HAVE BEEN PRESENTED TO THE GENERAL ACCOUNTING OFFICE FOR
ITS EXAMINATION, AND TO HAVE BEEN BY IT DISALLOWED.  ...  " 

FN4  IN RE MCLOUTH'S ESTATE, 281 MICH. 191; 274 N.W. 759. 

FN5  290 MICH. 311; 278 N.W. 477. 

FN6  CF. UNITED STATES V. ECKFORD, 6 WALL.  484; THE THEKLA, 266 U.S.
328.  IN RE PATTERSON-MACDONALD SHIPBUILDING CO., 293 F. 192(C.C.A. 9),
CERTIORARI DENIED, SUB NOM. MCLEAN V. AUSTRALIA, 264 U.S. 582. 
ROUMANIA V. GUARANTY TRUST CO., 250 F. 341(C.C.A. 2), CERTIORARI
DENIED, 246 U.S. 663; UNITED STATES V. NIPISSING MINES CO., 206 F. 431,
434(C.C.A. 2); ADAMS V. UNITED STATES, 3 CT. CLS. 312, 333; PETERSON V.
UNITED STATES, 26 CT. CLS. 93, 98.  UNITED STATES V. NATIONAL CITY
BANK, 83 F.2D 236(C.C.A. 2), CERTIORARI DENIED, 299 U.S. 563; AMERICAN
PROPELLER CO. V. UNITED STATES, 300 U.S. 475; GUARANTY TRUST CO. V.
UNITED STATES, 304 U.S. 126. 

FN7  308 U.S. 548. 

FN8  POST, P. 506. 

FN9  COMPILED LAWS OF MICHIGAN (1929), C. 266, SEC. 15682: 

"SET-OFFS IN SETTLEMENT OF CLAIMS.  SEC. 9.  WHEN A CREDITOR AGAINST
WHOM THE DECEASED HAD CLAIMS SHALL PRESENT A CLAIM TO THE
COMMISSIONERS, THE EXECUTOR OR ADMINISTRATOR SHALL EXHIBIT THE CLAIMS
OF THE DECEASED IN OFFSET TO THE CLAIMS OF THE CREDITOR, AND THE
COMMISSIONERS SHALL ASCERTAIN AND ALLOW THE BALANCE AGAINST OR IN FAVOR
OF THE ESTATE, AS THEY SHALL FIND THE SAME TO BE; BUT NO CLAIM BARRED
BY THE STATUTE OF LIMITATIONS SHALL BE ALLOWED BY THE COMMISSIONERS IN
FAVOR OF OR AGAINST THE ESTATE, AS A SET-OFF OR OTHERWISE." 

FN10  31 U.S.C. SEC. 226. 

FN11  46 U.S.C. SEC. 1113. 

FN12  FEDERAL HOUSING ADMINISTRATION V. BURR, ANTE, P. 242. 

FN13  290 MICH. 311; 287 N.W. 477. 

FN14  3 COMP. LAWS MICH. (1929), SEC. 15681. 

FN15  FLYNN V. LORIMER'S ESTATE, 141 MICH. 707; 105 N.W. 37. 

FN16  SHURBUN V. HOOPER, 40 MICH. 503. 

FN17  NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S. 249, 263;
FLYNN V. LORIMER'S ESTATE, 141 MICH. 707; 105 N.W. 37. 

FN18  KANSAS V. UNITED STATES, 204 U.S. 331; UNITED STATES V.
THOMPSON, 98 U.S. 486, 489, 490; BUCHANAN V. ALEXANDER, 4 HOW.  20. 

FN19  STANLEY V. SCHWALBY, 162 U.S. 255, 270; CARR V. UNITED STATES,
98 U.S. 433, 437. 

FN20  MINNESOTA V. UNITED STATES, 305 U.S. 382, 388. 

FN21  1 STAT. 512, 514; R.S. SEC. 951; 28 U.S.C. SEC. 774.  UNITED
STATES V. WILKINS, 6 WHEAT.  135, 144. 

FN22  28 U.S.C. SECS. 41(20), 250. 

FN23  KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP., 306 U.S. 381;
FEDERAL HOUSING ADMINISTRATION V. BURR, SUPRA. 

FN24  UNITED STATES V. WILKINS, SUPRA. 

FN25  28 U.S.C. SEC. 774. 

FN26  266 U.S. 328. 

FN27  SEE NOTE 33, INFRA. 

FN28  UNITED STATES V. BANK OF NEW YORK CO., 296 U.S. 463, 477;
MONTGOMERY V. WAYNE CIRCUIT JUDGE, 284 MICH. 430. 

FN29  BOWKER V. UNITED STATES, 186 U.S. 135, 139. 

FN30  245 U.S. 493, 504, 505. 

FN31  266 U.S. 101. 

FN32  ID., 106. 

FN33  AMERICAN PROPELLER CO. V. UNITED STATES, 300 U.S. 475, 478;
GUARANTY TRUST CO. V. UNITED STATES, 304 U.S. 126, 134. 

FN34  WILLIAMS V. UNITED STATES, 289 U.S. 553, 564. 

FN35  6 WALL.  484, 491. 

FN36  CF. REESIDE V. WALKER, 11 HOW.  272, 290. 

FN37  CF. SCHAUMBURG V. UNITED STATES, 103 U.S. 667. 

FN38  49 STAT. 1987: 

"SEC. 203.  THE UNITED STATES SHIPPING BOARD MERCHANT FLEET
CORPORATION SHALL CEASE TO EXIST AND SHALL STAND DISSOLVED.  ALL THE
RECORDS, BOOKS, PAPERS, AND CORPORATE PROPERTY OF SAID DISSOLVED
CORPORATION SHALL BE TAKEN OVER BY THE COMMISSION.  ALL EXISTING
CONTRACTUAL OBLIGATIONS OF THE DISSOLVED CORPORATION SHALL BE ASSUMED
BY THE UNITED STATES.  ANY SUIT AGAINST THE DISSOLVED CORPORATION
PENDING IN ANY COURT OF THE UNITED STATES SHALL BE DEFENDED BY THE
COMMISSION UPON BEHALF OF THE UNITED STATES, UNDER THE SUPERVISION OF
THE ATTORNEY GENERAL, AND ANY JUDGMENT OBTAINED AGAINST THE DISSOLVED
CORPORATION IN ANY SUCH PENDING SUIT SHALL BE REPORTED TO CONGRESS IN
THE MANNER PROVIDED IN SECTION 226, TITLE 31, U.S.C.  FOR REPORTING
JUDGMENTS AGAINST THE UNITED STATES IN THE COURT OF CLAIMS." 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :







UNITED STATES V. U.S. FIDELITY CO., 309 U.S. 506 


NO. 569.  ARGUED FEBRUARY 27, 1940.  - DECIDED MARCH 25, 1940.  - 106
F.2D 804, REVERSED. 


IN A REORGANIZATION PROCEEDING IN THE DISTRICT COURT FOR THE WESTERN
DISTRICT OF MISSOURI UNDER SEC. 77B OF THE BANKRUPTCY ACT, THE UNITED
STATES FILED A CLAIM IN BEHALF OF THE CHOCTAW AND CHICKASAW NATIONS. 
THE COURT ALLOWED IT BUT ALLOWED THE DEBTOR'S CROSS-CLAIM FOR A LARGER
AMOUNT AND DECREED THE BALANCE IN FAVOR OF THE DEBTOR AGAINST THE
NATIONS TO BE "COLLECTED IN THE MANNER PROVIDED BY LAW."  THE VALIDITY
OF THE JUDGMENT TO THE EXTENT THAT IT SATISFIED THE PRINCIPAL CLAIM WAS
CONCEDED.  IN ANOTHER SUIT IN OKLAHOMA BY THE UNITED STATES FOR THE
INDIAN NATIONS AGAINST THE SURETY ON A BOND GIVEN BY THE DEBTOR, THE
DEBTOR PLEADED THE FORMER JUDGMENT AS RES JUDICATA AND ASKED FOR A
DETERMINATION OF ACCOUNTS.  HELD: 

1.  THE INDIAN NATIONS AND THE UNITED STATES ACTING FOR THEM ARE
EXEMPT FROM SUITS AND ALSO FROM CROSS SUITS, EXCEPT WHEN AUTHORIZED,
AND IN THE COURTS DESIGNATED, BY ACT OF CONGRESS.  P. 512. 

2.  THE JUDGMENT, IN SO FAR AS IT UNDERTAKES TO FIX A CREDIT AGAINST
THE INDIAN NATIONS, IS VOID AND CAN NOT BE GIVEN THE EFFECT OF RES
JUDICATA IN OTHER LITIGATION.  P. 512. 

3.  THE IMMUNITY FROM SUIT OF THE UNITED STATES AND OF INDIAN NATIONS
IN TUTELAGE CAN NOT BE WAIVED BY OFFICIAL FAILURE TO OBJECT TO THE
JURISDICTION OR TO APPEAL FROM THE JUDGMENT.  IN THE ABSENCE OF
STATUTORY CONSENT TO THE SUIT, THE JUDGMENT IS SUBJECT TO COLLATERAL
ATTACK.  CHICOT COUNTY DRAINAGE DIST. V. BAXTER STATE BANK, 308 U.S.
371, DISTINGUISHED.  P. 513. 

4.  WHERE A JUDGMENT IN THE DISTRICT COURT WAS ENTERED BEFORE THE
EFFECTIVE DATE OF THE RULES OF CIVIL PROCEDURE, QUESTIONS AS TO PARTIES
ARE GOVERNED BY THE CONFORMITY ACT.  P. 516. 

SEMBLE THAT UNDER THE PROCEDURE OF OKLAHOMA A PRINCIPAL IN A BOND,
THOUGH HE CAN NOT COMPEL HIS ADMISSION AS A PARTY DEFENDANT IN A SUIT
AGAINST THE SURETY, BECOMES SUCH, IN EFFECT, IF ALLOWED WITHOUT
OBJECTION TO FILE HIS INTERVENING PETITION. 

5.  UNDER THE ACT OF APRIL 26, 1906, WHICH PROVIDED THAT WHERE SUIT
IS BROUGHT IN ANY UNITED STATES COURT IN THE INDIAN TERRITORY BY OR ON
BEHALF OF ANY OF THE FIVE CIVILIZED TRIBES TO RECOVER MONEYS CLAIMED TO
BE DUE AND OWING SUCH TRIBE, THE PARTY DEFENDANTS SHALL HAVE THE RIGHT
TO SET UP AND HAVE ADJUDICATED CLAIMS AGAINST THE TRIBE, AND THAT ANY
BALANCE THAT MAY BE FOUND DUE BY THE TRIBE SHALL BE PAID BY THE
TREASURER OF THE UNITED STATES OUT OF ITS FUNDS, ETC., THE QUESTION WHO
ARE "DEFENDANTS" IS A FEDERAL QUESTION.  P. 516. 

UNITED STATES V. UNITED STATES FIDELITY & GUARANTY CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 308 U.S. 548, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA, 24 F.SUPP. 
961, WHICH, IN RELIANCE UPON A JUDGMENT OF THE DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI, REJECTED A CLAIM MADE BY THE UNITED
STATES ON BEHALF OF THE CHOCTAW AND CHICKASAW NATIONS AND ALLOWED
AGAINST THEM A COUNTER-CLAIM OF INTERVENERS. 

THE COUNTERCLAIM IS NOT AGAINST THE UNITED STATES BUT THE TRIBES. 
UNITED STATES V. ALGOMA LUMBER CO., 305 U.S. 415; FOLK V. UNITED
STATES, 233 F. 177; UNITED STATES V. FT. SMITH & WESTERN RY. CO., 195
F. 211. 

THE FEDERAL COURT IN MISSOURI HAD JURISDICTION TO RENDER AN
AFFIRMATIVE JUDGMENT AGAINST THE TRIBES.  ACT OF APRIL 26, 1906, SEC.
18; C. 1876, 34 STAT. 137, 144, CONSIDERED WITH STATUTES CONFERRING
JURISDICTION ON THE DISTRICT COURTS. 

A TRANSITORY ACTION IN THE NAME OF THE UNITED STATES MUST BE BROUGHT
IN THE DISTRICT IN WHICH THE DEFENDANT RESIDES. 

CONGRESS HAS CONSENTED TO AN AFFIRMATIVE JUDGMENT AGAINST THE TRIBES,
AND ANY RIGHT TO HAVE THE CLAIM CONFINED IN THE FEDERAL COURTS OF
OKLAHOMA WAS WAIVED BY CONTESTING THE CLAIM IN MISSOURI.  DIST'G
ILLINOIS CENTRAL R. CO. V. PUBLIC UTILITIES COMM'N, 245 U.S. 493.  SEE,
PEORIA & PEKIN UNION R. CO. V. UNITED STATES, 263 U.S. 528, 535;
RICHARDSON V. FAJARDO SUGAR CO., 241 U.S. 44, 47. 

THE DETERMINATION OF THE QUESTION OF JURISDICTION BY THE COURT IN
MISSOURI MAY NOT BE ASSAILED COLLATERALLY.  CHICOT COUNTY DRAINAGE
DIST. V. BAXTER STATE BANK, 308 U.S. 371; STOLL V. GOTTLIEB, 305 U.S.
165. 

WHEN THE CLAIM OF THE TRIBES WAS SUBMITTED TO THE MISSOURI COURT THE
UNITED STATES AND THE TRIBES WERE LITIGANTS LIKE ANY OTHER SUITOR. 
RICHARDSON V. FAJARDO SUGAR CO., 241 U.S. 44; PORTO RICO V. RAMOS, 232
U.S. 627; FOLK V. UNITED STATES, 233 F. 177.  THE TRIBES AS NOW
CONSTITUTED ARE NOT SOVEREIGNS IMMUNE FROM SUIT.  THE DEFENSE OF
SOVEREIGN IMMUNITY WAS WAIVED. 

AS THE COURT IN MISSOURI HAD JURISDICTION, ITS JUDGMENT WAS BINDING
IN THE OKLAHOMA SUIT.  DIST'G UNITED STATES V. ECKFORD, 6 WALL.  484. 
WHEN SUING ON BEHALF OF THE TRIBES, THE UNITED STATES HAS NO GREATER
RIGHT THAN THEY.  FOLK V. UNITED STATES, 233 F. 177; UNITED STATES V.
FT. SMITH & WESTERN RY. CO., 195 F. 211. 

THE MATTER BEFORE THE COURT IN MISSOURI WAS ONE TO WHICH ITS
JURISDICTION WOULD EXTEND BETWEEN ORDINARY LITIGANTS, AS THE SUIT AROSE
UNDER THE LAWS AND TREATIES OF THE UNITED STATES, JUD.  CODE 24(1), 28
U.S.C. SEC. 41(1). 

THE CASE WAS IN EQUITY, SO WHETHER THE RIGHT TO COUNTER-CLAIM BE
PROCEDURAL OR SUBSTANTIVE (SEE THE GLORIA, 286 F. 188), THE DEFENDANT
COULD INTERPOSE IT AND OBTAIN AN AFFIRMATIVE JUDGMENT.  EQUITY RULE
30. 

THE TREND OF MODERN AUTHORITIES IS TO DIFFERENTIATE BETWEEN THE
AUTHORITY TO RENDER A JUDGMENT AND THE AUTHORITY TO ORDER ITS
ENFORCEMENT.  THE GLORIA, 286 F. 188; THE NEWBATTLE, 10 PROB.  DIV. 
33; UNITED STATES V. NUESTRA SENORA DE REGLA, 108 U.S. 92; THE PAQUETE
HABANA, 189 U.S. 453; UNITED STATES V. THE THEKLA, 266 U.S. 328;
GUARANTY TRUST CO. V. UNITED STATES, 304 U.S. 126; DEXTER AND CARPENTER
V. KUNGLIG JARNVAGSSTYRELLSEN, 43 F.2D 705; RUSSIA V. BANKERS' TRUST
CO., 4 F.SUPP.  417, AFFIRMED UNITED STATES V. NATIONAL CITY BANK OF
NEW YORK, 83 F.2D 236, CERT. DEN.  299 U.S. 563. 

WHEN THE JUDGMENT WAS RENDERED IN MISSOURI THE CLAIM THERETOFORE
EXISTING WAS MERGED IN IT. WYCOFF V. EPWORTH HOTEL CO., 146 MO. APP.
554. 

THE INTERVENERS CAME IN AS PARTY DEFENDANTS, WITHOUT OBJECTION, AND
THEIR CLAIM WAS PROPERLY ALLOWED UNDER THE ACT OF 1906. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI BRINGS TWO QUESTIONS HERE FOR REVIEW:  (1) IS A
FORMER JUDGMENT AGAINST THE UNITED STATES ON A CROSS-CLAIM, WHICH WAS
ENTERED WITHOUT STATUTORY AUTHORITY, FIXING A BALANCE OF INDEBTEDNESS
TO BE COLLECTED AS PROVIDED BY LAW, RES JUDICATA IN THIS LITIGATION FOR
COLLECTION OF THE BALANCE; AND (2) AS THE CONTROVERTED FORMER JUDGMENT
WAS ENTERED AGAINST THE CHOCTAW AND CHICKASAW NATIONS, APPEARING BY THE
UNITED STATES, DOES THE JURISDICTIONAL ACT OF APRIL 26, 1906,
AUTHORIZING ADJUDICATION OF CROSS DEMANDS BY DEFENDANTS IN SUITS ON
BEHALF OF THESE NATIONS, PERMIT THE FORMER CREDIT, OBTAINED BY THE
PRINCIPAL IN A BOND GUARANTEED BY THE SOLE ORIGINAL DEFENDANT HERE, TO
BE SET UP IN THE PRESENT SUIT.  CERTIORARI WAS GRANTED  FN1  BECAUSE OF
PROBABLE CONFLICT, ON THE FIRST QUESTION, BETWEEN THE JUDGMENT BELOW
AND ADAMS V. UNITED STATES FN2  AND BECAUSE OF THE IMPORTANCE OF
CLARIFYING THE MEANING OF THE LANGUAGE IN UNITED STATES V. ECKFORD  FN3
RELATING TO THE JUDICIAL ASCERTAINMENT OF THE INDEBTEDNESS OF THE
GOVERNMENT ON STRIKING A BALANCE AGAINST THE UNITED STATES WHERE CROSS
CLAIMS ARE INVOLVED.  A SOMEWHAT SIMILAR QUESTION ARISES IN UNITED
STATES V. SHAW.  FN4  THE SECOND QUESTION WAS TAKEN BECAUSE ITS
SOLUTION IS INVOLVED IN CERTAIN PHASES OF THIS LITIGATION. 

THE UNITED STATES, ACTING FOR THE CHOCTAW AND CHICKASAW NATIONS,
LEASED SOME COAL LANDS TO THE KANSAS AND TEXAS COAL COMPANY, WITH THE
RESPONDENT UNITED STATES FIDELITY AND GUARANTY COMPANY ACTING AS SURETY
ON A BOND GUARANTEEING PAYMENT OF THE LEASE ROYALTIES.  BY VARIOUS
ASSIGNMENTS THE LEASES BECAME THE PROPERTY OF THE CENTRAL COAL AND COKE
COMPANY, AS SUBSTITUTED LESSEE, THE GUARANTY COMPANY REMAINING AS
SURETY.  THE CENTRAL COAL AND COKE COMPANY WENT INTO RECEIVERSHIP IN
THE WESTERN DISTRICT OF MISSOURI, AND THE UNITED STATES FILED A CLAIM
FOR THE INDIAN NATIONS FOR ROYALTIES DUE UNDER THE LEASES.  ANSWERING
THIS CLAIM, THE CENTRAL COAL AND COKE COMPANY DENIED THAT ANY ROYALTIES
WERE OWING AND CLAIMED CREDITS AGAINST THE NATIONS FOR $11,060.90.  BY
ORDER OF THE COURT, REORGANIZATION OF THE COAL COMPANY UNDER SEC. 77B
OF THE BANKRUPTCY ACT WAS INSTITUTED AND THE TRUSTEE TOOK POSSESSION
FROM THE RECEIVERS.  IN THE REORGANIZATION PROCEEDINGS THE CLAIM OF THE
NATIONS WAS ALLOWED FOR $2,000, THE DEBTOR'S CROSS-CLAIM WAS ALLOWED
FOR $11,060.90, AND THE COURT ON FEBRUARY 19, 1936, DECREED A BALANCE
OF $9,060.90 IN FAVOR OF THE DEBTOR, TO BE "COLLECTED IN THE MANNER
PROVIDED BY LAW."  NO REVIEW OF THIS JUDGMENT OF THE MISSOURI DISTRICT
COURT WAS EVER SOUGHT. 

ON DECEMBER 24, 1935, THE UNITED STATES, ON ITS OWN BEHALF AND ON
BEHALF OF THE INDIAN NATIONS, FILED THE PRESENT SUIT IN THE EASTERN
DISTRICT OF OKLAHOMA AGAINST THE GUARANTY COMPANY, AS SURETY ON THE
ROYALTY BOND, FOR THE SAME ROYALTIES INVOLVED IN THE MISSOURI
PROCEEDINGS.  AFTER THE JUDGMENT OF THE MISSOURI DISTRICT COURT, THE
GUARANTY COMPANY PLEADED THAT JUDGMENT AS A BAR TO RECOVERY BY THE
UNITED STATES.  THE TRUSTEE OF CENTRAL COAL AND COKE COMPANY, AND THE
CENTRAL COAL AND COKE CORPORATION, WHICH HAD TAKEN OVER CERTAIN
INTERESTS IN THE ASSETS OF THE COAL COMPANY, ALLEGED BY A PETITION FOR
LEAVE TO INTERVENE, AND, UPON ITS ALLOWANCE WITHOUT OBJECTION, BY AN
INTERVENING PETITION, THAT THEY WERE NECESSARY AND PROPER PARTIES
BECAUSE EACH HAD AN INTEREST IN THE JUDGMENT OF THE MISSOURI COURT;
THEY PLEADED THE MISSOURI JUDGMENT AS DETERMINATIVE AND PLEADED THE
MERITS OF THE COUNTERCLAIMS BY SETTING UP THE FACTS WHICH SUPPORTED THE
JUDGMENT; THEY ASKED FOR A DECREE THAT THE MISSOURI JUDGMENT WAS VALID,
FOR A DETERMINATION OF ACCOUNTS BETWEEN THEMSELVES AND THE INDIAN
NATIONS, AND FOR ALL OTHER PROPER RELIEF.  REPLYING TO THE ANSWER OF
THE SURETY AND THE PETITION OF THE INTERVENERS, THE UNITED STATES
PLEADED THAT THE MISSOURI JUDGMENT WAS VOID AS TO THE INTERVENERS'
CROSS-CLAIMS BECAUSE THE COURT WAS "WITHOUT JURISDICTION TO RENDER THE
JUDGMENT" AGAINST THE UNITED STATES AND DENIED THE CROSS-CLAIMS ON THE
MERITS.  THE DISTRICT COURT CONCLUDED THAT THE MISSOURI JUDGMENT BARRED
THE CLAIM AGAINST THE SURETY AND ENTITLED THE INTERVENERS TO A JUDGMENT
AGAINST THE INDIAN NATIONS IN THE AMOUNT OF THE BALANCE FOUND BY THE
MISSOURI COURT.  THIS JUDGMENT THE CIRCUIT COURT OF APPEALS AFFIRMED. 
FN5 

A. - BY CONCESSION OF THE GOVERNMENT THE VALIDITY OF SO MUCH OF THE
MISSOURI JUDGMENT AS SATISFIES THE INDIAN NATIONS' CLAIM AGAINST THE
LESSEE IS ACCEPTED.  THIS CONCESSION IS UPON THE THEORY THAT A
DEFENDANT MAY, WITHOUT STATUTORY AUTHORITY, RECOUP ON A COUNTERCLAIM AN
AMOUNT EQUAL TO THE PRINCIPAL CLAIM.  FN6 

B. - WE ARE OF THE VIEW, HOWEVER, THAT THE MISSOURI JUDGMENT IS VOID
IN SO FAR AS IT UNDERTAKES TO FIX A CREDIT AGAINST THE INDIAN NATIONS. 
IN UNITED STATES V. SHAW  FN7  WE HOLD THAT CROSS-CLAIMS AGAINST THE
UNITED STATES ARE JUSTICIABLE ONLY IN THOSE COURTS WHERE CONGRESS HAS
CONSENTED TO THEIR CONSIDERATION.  PROCEEDINGS UPON THEM ARE GOVERNED
BY THE SAME RULES AS DIRECT SUITS.  IN THE MISSOURI PROCEEDINGS IN
CORPORATE REORGANIZATION, THE UNITED STATES, BY THE SUPERINTENDENT OF
THE FIVE CIVILIZED TRIBES FOR THE CHOCTAW AND CHICKASAW NATIONS, FILED
A CLAIM ON BEHALF OF THE INDIAN NATIONS.  THIS IT IS AUTHORIZED TO DO.
FN8  NO STATUTORY AUTHORITY GRANTED JURISDICTION TO THE MISSOURI COURT
TO ADJUDICATE A CROSS-CLAIM AGAINST THE UNITED STATES.  FN9  THE PUBLIC
POLICY WHICH EXEMPTED THE DEPENDENT AS WELL AS THE DOMINANT
SOVEREIGNTIES FROM SUIT WITHOUT CONSENT  FN10  CONTINUES THIS IMMUNITY
EVEN AFTER DISSOLUTION OF THE TRIBAL GOVERNMENT.  THESE INDIAN NATIONS
ARE EXEMPT FROM SUIT WITHOUT CONGRESSIONAL AUTHORIZATION.  FN11 IT IS
AS THOUGH THE IMMUNITY WHICH WAS THEIRS AS SOVEREIGNS PASSED TO THE
UNITED STATES FOR THEIR BENEFIT, AS THEIR TRIBAL PROPERTIES DID. 
POSSESSING THIS IMMUNITY FROM DIRECT SUIT, WE ARE OF THE OPINION IT
POSSESSES A SIMILAR IMMUNITY FROM CROSS-SUITS.  THIS SEEMS NECESSARILY
TO FOLLOW IF THE PUBLIC POLICY WHICH PROTECTS A QUASI-SOVEREIGNTY FROM
JUDICIAL ATTACK IS TO BE MADE EFFECTIVE.  THE CONGRESS HAS MADE
PROVISION FOR CROSS-SUITS AGAINST THE INDIAN NATIONS BY DEFENDANTS. 
FN12 THIS PROVISION, HOWEVER, IS APPLICABLE ONLY TO "ANY UNITED STATES
COURT IN THE INDIAN TERRITORY."  AGAINST THIS CONCLUSION RESPONDENTS
URGE THAT AS THE RIGHT TO FILE THE CLAIM AGAINST THE DEBTOR WAS
TRANSITORY, THE RIGHT TO SET UP THE CROSS-CLAIM PROPERLY FOLLOWED THE
MAIN PROCEEDING.  FN13 THE DESIRABILITY FOR COMPLETE SETTLEMENT OF ALL
ISSUES BETWEEN PARTIES MUST, WE THINK, YIELD TO THE PRINCIPLE OF
IMMUNITY.  THE SOVEREIGNTY POSSESSING IMMUNITY SHOULD NOT BE COMPELLED
TO DEFEND AGAINST CROSS-ACTIONS AWAY FROM ITS OWN TERRITORY OR IN
COURTS NOT OF ITS OWN CHOICE, MERELY BECAUSE ITS DEBTOR WAS UNAVAILABLE
EXCEPT OUTSIDE THE JURISDICTION OF THE SOVEREIGN'S CONSENT.  THIS
REASONING IS PARTICULARLY APPLICABLE TO INDIAN NATIONS WITH THEIR
UNUSUAL GOVERNMENTAL ORGANIZATION AND PECULIAR PROBLEMS. 

BUT, IT IS SAID THAT THERE WAS A WAIVER OF IMMUNITY BY A FAILURE TO
OBJECT TO THE JURISDICTION OF THE MISSOURI DISTRICT COURT OVER THE
CROSS-CLAIM.  IT IS A COROLLARY TO IMMUNITY FROM SUIT ON THE PART OF
THE UNITED STATES AND THE INDIAN NATIONS IN TUTELAGE THAT THIS IMMUNITY
CANNOT BE WAIVED BY OFFICIALS.  IF THE CONTRARY WERE TRUE, IT WOULD
SUBJECT THE GOVERNMENT TO SUIT IN ANY COURT IN THE DISCRETION OF ITS
RESPONSIBLE OFFICERS.  THIS IS NOT PERMISSIBLE.  FN14 

THE REASONS FOR THE CONCLUSION THAT THIS IMMUNITY MAY NOT BE WAIVED
GOVERN LIKEWISE THE QUESTION OF RES JUDICATA.  AS NO APPEAL WAS TAKEN
FROM THIS MISSOURI JUDGMENT, IT IS SUBJECT TO COLLATERAL ATTACK ONLY IF
VOID.  IT HAS HERETOFORE BEEN SHOWN THAT THE SUABILITY OF THE UNITED
STATES AND THE INDIAN NATIONS, WHETHER DIRECTLY OR BY CROSS-ACTION,
DEPENDS UPON AFFIRMATIVE STATUTORY AUTHORITY.  CONSENT ALONE GIVES
JURISDICTION TO ADJUDGE AGAINST A SOVEREIGN.  ABSENT THAT CONSENT, THE
ATTEMPTED EXERCISE OF JUDICIAL POWER IS VOID.  THE FAILURE OF OFFICIALS
TO SEEK REVIEW CANNOT GIVE FORCE TO THIS EXERCISE OF JUDICIAL POWER. 
PUBLIC POLICY FORBIDS THE SUIT UNLESS CONSENT IS GIVEN, AS CLEARLY AS
PUBLIC POLICY MAKES JURISDICTION EXCLUSIVE BY DECLARATION OF THE
LEGISLATIVE BODY.  FN15  CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER
STATE BANK  FN16  IS INAPPLICABLE WHERE THE ISSUE IS THE WAIVER OF
IMMUNITY. 

IN THE CHICOT COUNTY CASE NO INFLEXIBLE RULE AS TO COLLATERAL
OBJECTION IN GENERAL TO JUDGMENTS WAS DECLARED.  WE EXPLICITLY LIMITED
OUR EXAMINATION TO THE EFFECT OF A SUBSEQUENT INVALIDATION OF THE
APPLICABLE JURISDICTIONAL STATUTE UPON AN EXISTING JUDGMENT IN
BANKRUPTCY.  FN17  TO THIS EXTENT THE CASE DEFINITELY EXTENDED THE AREA
OF ADJUDICATIONS THAT MAY NOT BE THE SUBJECT OF COLLATERAL ATTACK.  NO
EXAMINATION WAS MADE OF THE SUSCEPTIBILITY TO SUCH OBJECTION OF
NUMEROUS GROUPS OF JUDGMENTS CONCERNING STATUS,  FN18  EXTRA
TERRITORIAL ACTION OF COURTS,  FN19  OR STRICTLY JURISDICTIONAL AND
QUASI-JURISDICTIONAL FACTS.  FN20  NO SOLUTION WAS ATTEMPTED OF THE
LEGAL RESULTS OF A COLLISION BETWEEN THE DESIRABLE PRINCIPLE THAT
RIGHTS MAY BE ADEQUATELY VINDICATED THROUGH A SINGLE TRIAL OF AN ISSUE
AND THE SOVEREIGN RIGHT OF IMMUNITY FROM SUIT.  WE ARE OF THE OPINION,
HOWEVER, THAT WITHOUT LEGISLATIVE ACTION THE DOCTRINE OF IMMUNITY
SHOULD PREVAIL.    C. - THE CONCLUSION THAT THE MISSOURI JUDGMENT IS
VOID DETERMINES THIS REVIEW.  THERE IS LEFT IN THE CASE, HOWEVER, AN
ISSUE WHICH REQUIRES BRIEF REFERENCE TO THE SECOND QUESTION UPON WHICH
CERTIORARI WAS GRANTED.  THE INTERVENING PETITION SET UP THE FACTS
SUPPORTING THE CLAIM OF THE INTERVENERS AGAINST THE INDIAN NATIONS.  AN
ISSUE WAS MADE AND THE EVIDENCE OF THE MISSOURI CONTROVERSY STIPULATED
FOR CONSIDERATION IN THE PRESENT CASE.  AS THE DISTRICT COURT
DETERMINED THAT THE MISSOURI JUDGMENT WAS VALID, NO FINDING OR
CONCLUSION APPEARED IN THE JUDGMENT OF THE DISTRICT COURT UPON THE
MERITS.  RESPONDENTS MADE NO OBJECTION TO THIS OMISSION BUT CALL
ATTENTION TO IT IN THEIR BRIEF.  ON A NEW TRIAL THIS ISSUE OBVIOUSLY
WILL BE IMPORTANT.    IT IS THE CONTENTION OF THE GOVERNMENT THAT THE
CROSS-CLAIM CANNOT BE LIQUIDATED IN THIS PROCEEDING FOR THE REASON THAT
BY THE STATUTE UNDER WHICH THIS SUIT IS BROUGHT, THE RIGHT TO SET UP A
CROSS-CLAIM IS LIMITED TO "PARTY DEFENDANTS."  FN21  RESPONDENTS' REPLY
THAT AS THEY WERE ADMITTED AS INTERVENERS WITHOUT OBJECTION, AS THEY
HAVE AN INTEREST IN CROSS-CLAIMS ARISING FROM THE SAME TRANSACTIONS
WHICH FORM THE BASIS OF THE PRINCIPAL SUIT, AND AS ONE OF THEM IS A
PRINCIPAL LIABLE FOR ANY JUDGMENT AGAINST THE DEFENDANT SURETY, THEY
ARE TO ALL INTENTS AND PURPOSES DEFENDANTS UNDER SEC. 18 OF THE ACT OF
APRIL 26, 1906. 

AS THIS JUDGMENT WAS ENTERED BEFORE THE EFFECTIVE DATE OF THE CIVIL
RULES, PROCEDURE AS TO PARTIES WAS GOVERNED BY THE CONFORMITY ACT. 
FN22  APPARENTLY UNDER OKLAHOMA LAW THE PRINCIPAL IN THE BOND COULD NOT
COMPEL ITS ADMISSION AS A PARTY DEFENDANT.  FN23  AS THE GOVERNMENT DID
NOT OBJECT TO THE ORDER FILING THE INTERVENING PETITION, WE ASSUME IT
PROPERLY FILED AND THAT THE TRUSTEE FOR THE COAL COMPANY WAS ACTUALLY A
DEFENDANT.  THE NAME USED IS IMMATERIAL. 

WHETHER THE COAL COMPANY WAS SUCH A DEFENDANT AS WAS MEANT BY SEC. 18
RAISES OTHER QUESTIONS.  SINCE THEY DEPEND UPON AN INTERPRETATION OF
THE FEDERAL STATUTE THEY ARE TO BE DETERMINED BY FEDERAL, NOT OKLAHOMA,
LAW.  FN24  AS THE EXTENT AND CHARACTER OF THE INTEREST OF THE ASSIGNEE
COAL CORPORATION IN THE UNLIQUIDATED CLAIMS OF THE COMPANY DO NOT
APPEAR FROM THE RECORD, WE DO NOT PASS UPON THE QUESTION OF WHETHER THE
COMPANY DEFENDANT HAS ANY CROSS-CLAIM AGAINST THE INDIAN NATIONS, AFTER
SATISFACTION OF THE INDIAN NATIONS' CLAIM AGAINST IT OR WHETHER, IF
THERE IS SUCH A CLAIM, OWNED JOINTLY WITH THE CORPORATION, IT IS A
CLAIM THE COMPANY MAY ENFORCE AS DEFENDANT UNDER SEC. 18. 

THE CAUSE IS REVERSED AND REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.  REVERSED. 

FN1  308 U.S. 548. 

FN2  3 CT. CLS. 312. 

FN3  6 WALL.  484. 

FN4  ANTE, P. 495. 

FN5  106 F.2D 804. 

FN6  BULL V. UNITED STATES, 295 U.S. 247, 261. 

FN7  ANTE, P. 495. 

FN8  HECKMAN V. UNITED STATES, 224 U.S. 413, 442; MULLEN V. UNITED
STATES, 224 U.S. 448, 451; UNITED STATES V. RICKERT, 188 U.S. 432. 
THESE CASES DISCUSS, ALSO, THE RELATIONSHIP BETWEEN THE UNITED STATES
AND THE CHOCTAW AND CHICKASAW NATIONS.  SEE ALSO UNITED STATES V.
CHOCTAW ETC. NATIONS, 179 U.S. 494, 532; CHOCTAW NATION V. UNITED
STATES, 119 U.S. 1, 28. 

ACT OF JUNE 7, 1897, 30 STAT. 62, 83; ATOKA AGREEMENT, 30 STAT. 495,
505; ACT OF MARCH 3, 1901, 31 STAT. 1447; ACT OF APRIL 26, 1906, 34
STAT. 137, 144.  UNDER SEC. 28 OF THE ACT OF APRIL 26, 1906, THE TRIBAL
EXISTENCE OF THE CHICKASAW AND CHOCTAW NATIONS IS CONTINUED AS MODIFIED
BY THAT AND OTHER ACTS. 

FN9  CF. UNITED STATES V. ALGOMA LUMBER CO., 305 U.S. 415. 

FN10  CF. CHEROKEE NATION V. GEORGIA, 5 PET. 1. 

FN11  TURNER V. UNITED STATES, 248 U.S. 354, 358; ADAMS V. MURPHY,
165 F. 304, 308; THEBO V. CHOCTAW TRIBE OF INDIANS, 66 F. 372. 

FN12  ACT OF APRIL 26, 1906, SEC. 18, 34 STAT. 137, 144, 148. 

FN13  CF. FIDELITY INS., TRUST AND S.D. CO. V. MECHANICS' SAV. BANK,
97 F. 297, 303. 

FN14  MINNESOTA V. UNITED STATES, 305 U.S. 382, 388 AND CASES CITED;
MUNRO V. UNITED STATES, 303 U.S. 36, 41; FINN V. UNITED STATES, 123
U.S. 227, 232. 

FN15 KALB V. FEUERSTEIN, 308 U.S. 433. 

FN16  308 U.S. 371. 

FN17  SEE THE LAST PARAGRAPH OF THE OPENING STATEMENT AND THE FIRST
PARAGRAPH OF DIVISION SECOND.  308 U.S. 374, 376. 

FN18  ANDREWS V. ANDREWS, 188 U.S. 14. 

FN19  FALL V. EASTIN, 215 U.S. 1. 

FN20  NOBLE V. UNION RIVER LOGGING R. CO., 147 U.S. 165; CF. JOHNSON
V. ZERBST, 304 U.S. 458. 

FN21  34 STAT. 137, SEC. 18: 

     .         .         .         .   . 

"WHERE SUIT IS NOW PENDING, OR MAY HEREAFTER BE FILED IN ANY UNITED
STATES COURT IN THE INDIAN TERRITORY, BY OR ON BEHALF OF ANY ONE OR
MORE OF THE FIVE CIVILIZED TRIBES TO RECOVER MONEYS CLAIMED TO BE DUE
AND OWING TO SUCH TRIBE, THE PARTY DEFENDANTS TO SUCH SUIT SHALL HAVE
THE RIGHT TO SET UP AND HAVE ADJUDICATED ANY CLAIM IT MAY HAVE AGAINST
SUCH TRIBE; AND ANY BALANCE THAT MAY BE FOUND DUE BY ANY TRIBE OR
TRIBES SHALL BE PAID BY THE TREASURER OF THE UNITED STATES OUT OF ANY
FUNDS OF SUCH TRIBE OR TRIBES UPON THE FILING OF THE DECREE OF THE
COURT WITH HIM." 

FN22  R.S. 914; SAWIN V. KENNY, 93 U.S. 289; UNITED MINE WORKERS V.
CORONADO CO., 259 U.S. 344, 382. 

FN23  FIDELITY & DEPOSIT CO. V. SHERMAN MACHINE & IRON WORKS, 62
OKLA. 29. 

FN24  BOARD OF COUNTY COMMISSIONERS V. UNITED STATES, 308 U.S. 343,
AND DEITRICK V. GREANEY, ANTE, P. 190. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE DECISION OF THIS CASE. 
..END :





INLAND WATERWAYS CORP. V. YOUNG, 309 U.S. 517 


NO. 6.  ARGUED OCTOBER 11, 1939.  - DECIDED MARCH 25, 1940.  - 69 APP.
D.C. 268 - 100 F.2D 678, REVERSED. 


A NATIONAL BANK MAY PLEDGE ASSETS TO SECURE DEPOSITS OF GOVERNMENT
FUNDS MADE BY GOVERNMENTAL AGENCIES EVEN THOUGH THE DEPOSITS MAY NOT BE
"PUBLIC MONEY" WITHIN SEC. 45 OF THE NATIONAL BANK ACT.  P. 523. 

THE POWER IS TO BE IMPLIED IN ACCORDANCE WITH TRADITIONAL GOVERNMENT
POLICY AND IS SUPPORTED BY ADMINISTRATIVE PRACTICE. 

INLAND WATERWAYS CORP. ET AL. V. YOUNG, RECEIVER. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 306 U.S. 626, TO REVIEW THE AFFIRMANCE OF JUDGMENTS
RECOVERED BY THE RECEIVER OF A NATIONAL BANK AGAINST CERTAIN PUBLIC
AGENCIES AND OFFICIALS. 

NATIONAL BANKS HAVE NO POWER TO PLEDGE THEIR ASSETS TO SECURE
DEPOSITS UNLESS SPECIFICALLY AUTHORIZED BY AN ACT OF CONGRESS.  TEXAS &
PACIFIC RY. V. POTTORFF, 291 U.S. 245, 253; MARION V. SNEEDEN, 291 U.S.
262; LEWIS V. FIDELITY & DEPOSIT CO., 292 U.S. 559. 

THE ONLY PLEDGES WHICH THE ACT OF 1864 PERMITS ARE PLEDGES EXACTED BY
AND MADE TO THE SECRETARY OF THE TREASURY TO SECURE DEPOSITS OF PUBLIC
MONEY UNDER HIS CONTROL.  AND IF PUBLIC MONEY IS DEPOSITED IN A
NATIONAL BANK DESIGNATED AS A GOVERNMENT DEPOSITORY, AND INSUFFICIENT
SECURITY TAKEN, THE GOVERNMENT HAS NO PRIORITY UPON INSOLVENCY OF THE
BANK, BUT SHARES IN ITS LIQUIDATION EQUALLY WITH OTHER DEPOSITORS. 
COOK COUNTY NATIONAL BANK V. UNITED STATES, 107 U.S. 445, 448. 

THE DEPOSITS WERE NOT PUBLIC MONEY WITHIN SEC. 75 OF THE NATIONAL
BANK ACT.  THERE HAS BEEN NO COMPLIANCE WITH THE PROVISIONS OF SEC. 45
OF THE NATIONAL BANK ACT.  O'CONNOR V. RHODES, 79 F.2D 146, 150.  THE
PLEDGE IS NOT AUTHORIZED BY THE ACT OF FEBRUARY 16, 1933. 

ADMINISTRATIVE PRACTICE CAN NOT SUPPLY LACK OF SPECIFIC STATUTORY
AUTHORITY TO LEGALIZE THE PLEDGE.  MARION V. SNEEDEN, 291 U.S. 262,
269.  NOR CAN CUSTOM OR USAGE.  SEE TEXAS & PACIFIC RY. V. POTTORFF,
291 U.S. 245, 255. 

THE ATTEMPTED PLEDGE OF THE BANK'S ASSETS TO SECURE CANAL ZONE
DEPOSITS WAS VOID, AND NO TITLE PASSED THEREBY TO THE INTENDED
PLEDGEE.  RESPONDENT THEREFORE MAY RECOVER THE PROPERTY FROM THE PERSON
IN POSSESSION, SINCE THERE IS NO LAWFUL STATUTORY AUTHORITY FOR ITS
RETENTION.  THE RIGHT TO RECOVER CAN NOT BE DEFEATED ON THE GROUND THAT
THE PROPERTY HAS BEEN TRANSFERRED TO THE SECRETARY'S SUCCESSOR. 

NATIONAL BANKS HAVE NO POWER TO PLEDGE THEIR ASSETS TO SECURE
DEPOSITS OF THE MERCHANT FLEET CORPORATION OR THE INLAND WATERWAYS
CORPORATION.  THERE HAS BEEN NO COMPLIANCE BY THOSE AGENCIES WITH SEC.
45 OF THE NATIONAL BANK ACT.  THE DEPOSITS WERE LAWFUL AND NO
RELATIONSHIP OF TRUSTEE AND CESTUI QUE TRUST WAS CREATED. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BEFORE US IS WHETHER A NATIONAL BANK MAY PLEDGE ASSETS
TO SECURE DEPOSITS OF FUNDS MADE BY GOVERNMENTAL AGENCIES, EVEN THOUGH
THEY MAY NOT BE "PUBLIC MONEY" WITHIN THE SCOPE OF SEC. 45 OF THE
NATIONAL BANKING ACT, 13 STAT. 99, 113, 12 U.S.C. SEC. 90. 

THE DEPOSITS IN QUESTION WERE MADE WITH THE COMMERCIAL NATIONAL BANK
BY THREE SEPARATE GOVERNMENTAL AGENCIES - BY THE INLAND WATERWAYS
CORPORATION AND THE UNITED STATES SHIPPING BOARD MERCHANT FLEET
CORPORATION,  FN1  AND BY THE SECRETARY OF WAR ON BEHALF OF THE PANAMA
CANAL ZONE.  AFTER THE BANK'S INSOLVENCY THE PRESENT SUIT WAS
INSTITUTED BY THE RECEIVER, RESPONDENT HERE, FOR THE RECOVERY OF THE
PLEDGED ASSETS OR THEIR PROCEEDS TO THE EXTENT OF THE AMOUNT IN EXCESS
OF THE DIVIDENDS PAID TO THE GENERAL DEPOSITORS.  THE DISTRICT COURT
GRANTED RESPONDENT'S MOTION TO STRIKE OUT PORTIONS OF THE PETITIONERS'
ANSWERS ASSERTING THE VALIDITY OF THE PLEDGES.  THE PETITIONERS STOOD
THEIR GROUND, AND DECREES PRO CONFESSO FOR THE RESPONDENT FOLLOWED. 
THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA AFFIRMED, 69 APP.
D.C. 268; 100 F.2D 678, AND WE GRANTED CERTIORARI, 306 U.S. 626,
BECAUSE THE CONTROVERSY RAISED MATTERS OF IMPORTANCE IN THE
ADMINISTRATION OF THE NATIONAL BANKING ACT. 

AT THE THRESHOLD WE ARE MET BY TWO RECENT DECISIONS OF THIS COURT,
TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245, AND MARION V.
SNEEDEN, 291 U.S. 262.  IN VIEW OF THE THOROUGH CONSIDERATION WHICH
THESE TWO CASES RECEIVED AND THE ADDED WEIGHT WHICH THEY DERIVE FROM
THE AUTHORITY, IN THE FIELD OF BANKING, OF MR. JUSTICE BRANDEIS, THE
WRITER OF THE OPINIONS, WE START WITH FULL ACCEPTANCE OF WHAT THEY
DECIDED. 

THE POTTORFF CASE HELD THAT A NATIONAL BANK WAS WITHOUT AUTHORITY TO
PLEDGE ITS ASSETS AS SECURITY FOR PRIVATE DEPOSITS.  IN THE ABSENCE OF
SPECIFIC AUTHORITY TO MAKE SUCH PLEDGES, THE GENERAL POLICY OF THE ACT
AND PRINCIPLES OF SOUND BANKING PRACTICE WERE DRAWN UPON TO ESTABLISH
THE PROHIBITION.  TO ALLOW THE WITHDRAWAL OF ASSETS OF THE BANK FROM
GENERAL AVAILABILITY WOULD IMPAIR THE BANK'S LIQUIDITY - ITS ABILITY TO
MEET UNEXPECTED DEMANDS BY DEPOSITORS - AND THEREBY RESTRICT THE
NATIONAL BANKING SYSTEM AS A RELIABLE INSTRUMENT OF NATIONAL FINANCE. 
IN THE SNEEDEN CASE THE BANKING STANDARDS RELIED UPON IN THE POTTORFF
CASE WERE APPLIED LIKEWISE TO DENY TO NATIONAL BANKS POWER TO PLEDGE
THEIR ASSETS AS SECURITY FOR DEPOSITS BY STATE AND LOCAL GOVERNMENTAL
AGENCIES EXCEPT WHERE PERMISSION IS GIVEN BY THE ACT OF JUNE 25, 1930,
46 STAT. 809, 12 U.S.C. SEC. 90.  FN2 

BUT THE FUNCTION OF NATIONAL BANKS AS DEPOSITARIES OF FEDERAL FUNDS
WAS NOT BEFORE THE COURT IN THE POTTORFF AND SNEEDEN CASES, AND THE
POWER OF THE BANKS IN RELATION TO SUCH FUNDS COULD NOT HAVE BEEN
DECIDED THERE.  THAT POWER IS THE EXACT ISSUE HERE.  THE SOLUTION OF
THIS PROBLEM, HOWEVER, MUST BE FOUND BY APPLICATION OF THOSE STANDARDS
FOR JUDGMENT WHICH WERE DECISIVE IN THE FORMER CASES.  IN OTHER WORDS,
THE HISTORY AND PURPOSES OF THE STATUTE AND THE TRADITIONAL POLICY OF
THE NATIONAL GOVERNMENT IN UTILIZING THE NATIONAL BANKS AS FISCAL
AGENCIES MUST GIVE MEANING TO THE SILENCE OF THE ACT. 

CONGRESS HAS NECESSARILY BEEN CONCERNED FROM THE BEGINNING TO PROVIDE
APPROPRIATE SAFEGUARDS FOR GOVERNMENT FUNDS.  ONE OF THE MOTIVES IN THE
ESTABLISHMENT OF THE FIRST BANK OF THE UNITED STATES WAS ITS
AVAILABILITY AS A SAFE DEPOSITARY FOR SUCH FUNDS.  THEY WERE KEPT THERE
UNTIL THE EXPIRATION OF THAT BANK'S CHARTER IN 1811.  THEREAFTER AND
UNTIL THE SECOND BANK OF THE UNITED STATES WAS CHARTERED, GOVERNMENT
MONIES WERE KEPT IN STATE BANKS.  THESE DEPOSITS WERE WITHOUT SECURITY,
AND AS A CONSEQUENCE SEVERE LOSSES FOLLOWED THE FINANCIAL DISLOCATION
WHICH CAME WITH THE WAR OF 1812.  THIS EXPERIENCE LED THE GOVERNMENT TO
EXACT SECURITY, AND LOSSES BECAME NEGLIGIBLE.  PHILLIPS, METHODS OF
KEEPING THE PUBLIC MONIES OF THE UNITED STATES, PP. 6-20; H. REP. NO.
358, 21 CONG., 1ST SESS., VOL. 3, P. 12; IV MCMASTER, HISTORY OF THE
PEOPLE OF THE UNITED STATES, P. 295 ET SEQ.; III AMERICAN STATE PAPERS,
FINANCE, P. 11.  THE SECOND BANK OF THE UNITED STATES, ESTABLISHED
PARTLY TO SERVE AS A GOVERNMENT DEPOSITARY, KEPT MOST OF THE FEDERAL
FUNDS UNTIL THEIR WITHDRAWAL IN 1833 BY SECRETARY TANEY.  BUT AS A
CONDITION TO THEIR DEPOSIT IN VARIOUS STATE BANKS AFTER 1833, TANEY,
ACTING UPON THE EARLIER EXPERIENCE OF THE TREASURY UNDER SECRETARIES
GALLATIN AND CRAWFORD, EXACTED APPROPRIATE SECURITY.  FN3  BY THE ACT
OF JUNE 23, 1836, 5 STAT. 52, CONGRESS TRANSLATED TREASURY PRACTICE
INTO LEGISLATIVE POLICY.  IT THEREBY BECAME THE SECRETARY'S DUTY,
WHENEVER WISDOM DICTATED, TO REQUIRE COLLATERAL FOR GOVERNMENT FUNDS. 
AS A RESULT SECURITY WAS DEMANDED OF ALMOST ALL THE DEPOSITARIES. 
PHILLIPS, OP. CIT., P. 63.  THE PANIC OF 1837 BROUGHT ANOTHER
MODIFICATION.  GOVERNMENT MONIES WERE HELD BY THE LOCAL COLLECTORS AND
BY THE TREASURY ITSELF, AND A LITTLE LATER DEPOSITED IN THE NEW SUB
TREASURY.  BUT IN 1841 THE OLD METHOD OF DEPOSIT IN STATE BANKS WAS
RESUMED UNDER THE PRACTICE WHICH HAD BEEN INTRODUCED IN 1833.  EXEC.
DOC. NO. 123, 27TH CONG., 2ND SESS., P. 2; PHILLIPS, OP. CIT., P. 113. 
THIS ARRANGEMENT - THAT IS, DEPOSITS SECURED BY COLLATERAL - CONTINUED
UNTIL THE SUB-TREASURY ACT OF 1846, 9 STAT. 59, LED TO THE WITHDRAWAL
OF GOVERNMENT FUNDS FROM PRIVATE BANKS.  THE SUB-TREASURY SYSTEM
PERSISTED UNTIL THE ESTABLISHMENT OF THE MODERN NATIONAL BANKING
SYSTEM. 

THE POLICY OF SECURING GOVERNMENT DEPOSITS THUS ANTEDATES THE
NATIONAL BANKING ACT.  IT WAS THE PRACTICAL RESPONSE TO DISASTROUS
EXPERIENCE.  IT BEGAN WITHOUT ANY STATUTORY AUTHORIZATION, AND WAS
CONTINUED BOTH WITH AND WITHOUT SPECIFIC CONGRESSIONAL SANCTION.  LONG
PRACTICE AND CONGRESSIONAL APPROVAL LODGED IN THE SECRETARY OF THE
TREASURY AUTHORITY TO TAKE APPROPRIATE MEASURES TO SAFEGUARD THE NATION
AGAINST LOSS OF ITS FUNDS.  THE INTEGRITY OF GOVERNMENT MONIES WAS
NATURALLY CONSIDERED AN OBJECT OF GREAT NATIONAL IMPORTANCE, THE
ATTAINMENT OF WHICH PROPERLY BELONGED TO THOSE ENTRUSTED WITH THEIR
DISPOSITION. 

IT IS AGAINST THIS BACKGROUND THAT THE NATIONAL BANKING ACT OF 1864
MUST BE PROJECTED, INTENDED AS IT WAS TO PROVIDE FACILITIES FOR THE
DEPOSIT OF GOVERNMENT FUNDS.  CONGRESS WAS ALIVE TO THE TREASURY'S
EXPERIENCE WITH DEPOSITS, SECURED AND UNSECURED, DURING THE PRECEDING
DECADES, TOGETHER WITH THE POLICY WHICH HAD EVOLVED FROM THAT
EXPERIENCE.  CONG. GLOBE, 37TH CONG., 3RD SESS., PT. I, PP. 843-45. 
THE BANKING SYSTEM WHICH CONGRESS THUS ESTABLISHED EMBODIED A BLEND OF
GOVERNMENTAL AND PRIVATE PURPOSES.  SEE MERCANTILE BANK V. NEW YORK,
121 U.S. 138, 154; DAVIS, THE ORIGIN OF THE NATIONAL BANKING SYSTEM, S.
DOC. NO. 582, 61ST CONG., 2ND SESS. 

BY SEC. 45 OF THE ACT, CONGRESS SPECIFICALLY COMMANDED THE SECRETARY
OF THE TREASURY TO EXACT SECURITY FOR "PUBLIC MONIES" DEPOSITED BY HIM
IN NATIONAL BANKS.  R.S. SEC. 5153(12 U.S.C. SEC. 90).  WE READ THIS AS
AN EXACTION OF DUTY FROM THE SECRETARY AS TO MONIES SUBJECT TO HIS
CONTROL, SEE COOK COUNTY NAT. BANK V. UNITED STATES, 107 U.S. 445, 449,
AND NOT AS A LIMITATION UPON THE POWER OF THE BANK TO GIVE SECURITY
WHEN IT MAY BE REQUIRED BY OTHER GOVERNMENT OFFICERS AND AGENCIES
CHARGED WITH THE CUSTODY OF FEDERAL FUNDS.  PLACING SEC. 45 IN THE
SETTING OF ITS HISTORY, WE DO NOT THINK IT SHOULD BE READ IN A
NIGGARDLY SPIRIT, AS THOUGH IT EXPRESSED A GINGERLY DEPARTURE FROM
PUBLIC POLICY.  ON THE CONTRARY, IT IS A MANIFESTATION OF HISTORIC
NATIONAL PRACTICE, WHICH IS TO BE GIVEN SCOPE CONSONANT WITH THE REASON
FOR ITS DEVELOPMENT.  COMPARE KEIFER & KEIFER V. RECONSTRUCTION FINANCE
CORP., 306 U.S. 381.  BY A SERIES OF SPECIFIC STATUTORY COMMANDS,
CONGRESS HAS RECOGNIZED THE POWER OF NATIONAL BANKS TO GIVE SECURITY
FOR DEPOSITS OF A GOVERNMENTAL NATURE BY LAYING UPON VARIOUS AGENCIES,
CHARGED WITH THE CUSTODY OF SUCH FUNDS, A DUTY TO EXACT COLLATERAL. 
SEE SEC. 61 OF THE BANKRUPTCY ACT, 30 STAT. 562; SEC. 9 OF THE POSTAL
SAVINGS ACT, 36 STAT. 816; AND ACTS RELATING TO INSOLVENT BANK FUNDS,
39 STAT. 121; PORTO RICAN FUNDS, 39 STAT. 951; GOVERNMENT OBLIGATIONS,
40 STAT. 291 AND INDIAN MONIES, 40 STAT. 591.  WITH ONE EXCEPTION ALL
THESE SPECIAL STATUTORY REQUIREMENTS PERTAIN TO FUNDS HELD BY THE
GOVERNMENT FOR THE BENEFIT OF OTHERS.  IT IS DIFFICULT TO SUPPOSE THAT
WHAT CONGRESS HAS COMMANDED WITH RESPECT TO FUNDS HELD BY ITS AGENCIES
IN AN IMMEDIATE FIDUCIARY CAPACITY, IT WOULD DEEM A VIOLATION OF LAW IF
DONE WITH RESPECT TO FUNDS BENEFICIALLY OWNED BY THE UNITED STATES
ITSELF.  WHAT MAY BE INIMICAL TO THE PRIVATE ASPECTS OF THE NATIONAL
BANKING SYSTEM, AND THEREFORE ULTRA VIRES, HAS NO SUCH RELEVANCE TO THE
PUBLIC ASPECT OF NATIONAL BANKS, AND TO THE ENFORCEMENT OF THE PUBLIC
INTEREST BY THOSE CHARGED WITH PRIMARY RESPONSIBILITY FOR ITS
GUARDIANSHIP. 

SO FAR AS THE POWERS OF A NATIONAL BANK TO PLEDGE ITS ASSETS ARE
CONCERNED, THE FORM WHICH GOVERNMENT TAKES - WHETHER IT APPEARS AS THE
SECRETARY OF THE TREASURY, THE SECRETARY OF WAR, OR THE INLAND
WATERWAYS CORPORATION - IS WHOLLY IMMATERIAL.  THE MOTIVES WHICH LEAD
GOVERNMENT TO CLOTHE ITS ACTIVITIES IN CORPORATE FORM ARE ENTIRELY
UNRELATED TO THE PROBLEM OF SAFEGUARDING GOVERNMENTAL DEPOSITS, AND
THEREFORE IRRELEVANT TO THE ISSUE OF ULTRA VIRES.  COMPARE SKINNER &
EDDY CORP. V. MCCARL, 275 U.S. 1, 8.  FN4  THE TRUE NATURE OF THESE
MODERN DEVICES FOR CARRYING OUT GOVERNMENTAL FUNCTIONS IS RECOGNIZED IN
OTHER LEGAL RELATIONS WHEN REALITIES BECOME DECISIVE.  COMPARE CLALLAM
COUNTY V. UNITED STATES, 263 U.S. 341; EMERGENCY FLEET CORP. V. WESTERN
UNION, 275 U.S. 415.  THE FUNDS OF THESE CORPORATIONS ARE, FOR ALL
PRACTICAL PURPOSES, GOVERNMENT FUNDS; THE LOSSES, IF LOSSES THERE BE,
ARE THE GOVERNMENT'S LOSSES.  COMPARE U.S. GRAIN CORP. V. PHILLIPS, 261
U.S. 106, 113.  SEE SEVENTEENTH ANNUAL REPORT, U.S. SHIPPING BOARD,
1933, PP. 88-89, FOR SUMMARY OF LOSSES BORNE BY TREASURY ON BEHALF OF
THE MERCHANT FLEET CORPORATION, AND COMPARE ANNUAL REPORT, INLAND
WATERWAYS CORPORATION, 1936, PP. 16-22. 

THE POLICY UNDERLYING CONGRESSIONAL LEGISLATION AND REFLECTED IN THE
HISTORY OF GOVERNMENTAL DEPOSITS IS CONFIRMED BY THE EXPLICIT
RECOGNITION OF THAT OFFICIAL IN WHOM IS CENTERED OVERSIGHT OF THE
ADMINISTRATION OF THE NATIONAL BANKING ACT.  S. DOC. 175, 73RD CONG.,
2ND SESS.  THE COMPTROLLER OF THE CURRENCY, TO BE SURE, MUST HIMSELF
MOVE WITHIN THE ORBIT OF THE NATIONAL BANKING ACT.  ILLEGALITY CANNOT
ATTAIN LEGITIMACY THROUGH PRACTICE.  BUT WHEN LEGALITY ITSELF IS IN
DISPUTE - WHEN CONGRESS HAS SPOKEN AT BEST WITH AMBIGUOUS SILENCE - A
LONG CONTINUED PRACTICE PURSUED WITH THE KNOWLEDGE OF THE COMPTROLLER
OF THE CURRENCY IS MORE PERSUASIVE THAN CONSIDERATIONS OF ABSTRACT
CONFLICT BETWEEN SUCH A PRACTICE AND PURPOSES ATTRIBUTED TO CONGRESS. 
MORE THAN HALF A DOZEN AGENCIES HAVE THOUGHT IT THEIR DUTY TO SAFEGUARD
DEPOSITS IN NEARLY A HUNDRED BANKS BY TRANSACTIONS SIMILAR TO THOSE
BEFORE US.  THIS PRACTICE HAD THE APPROVAL OF THE COMPTROLLER BECAUSE
HE BELIEVED IT WITHIN THE SCOPE OF THE NATIONAL BANKING ACT.  EVEN
CONSTITUTIONAL POWER, WHEN THE TEXT IS DOUBTFUL, MAY BE ESTABLISHED BY
USAGE.  SEE UNITED STATES V. MIDWEST OIL CO., 236 U.S. 459, 473.  WHEN
DEALING WITH SUCH NECESSARILY ARGUMENTATIVE CONCEPTS AS THOSE OF WHICH
THE LAW OF ULTRA VIRES IS SO LARGELY COMPOSED, THE RESPONSIBLE AND
PERVASIVE PRACTICE OF PUBLIC OFFICERS BENT ON SAFEGUARDING THE PUBLIC
INTERESTS OUGHT TO CARRY THE DAY EVEN WERE THE ISSUE MORE IN DOUBT THAN
WE BELIEVE IT TO BE.    DEEMING THE CHALLENGED PLEDGES TO HAVE BEEN
VALIDLY MADE, WE THINK PETITIONERS WERE ENTITLED TO JUDGMENT.  IT IS
THEREFORE UNNECESSARY FOR US TO CONSIDER THE OTHER ARGUMENTS HERE URGED
IN THEIR BEHALF.  THE JUDGMENTS BELOW SHOULD BE REVERSED. 

FN1  BOTH THESE CORPORATIONS ARE WHOLLY OWNED BY THE UNITED STATES. 

FN2  LEWIS V. FIDELITY & DEPOSIT CO., 292 U.S. 559, INVOLVED MERELY
THE APPLICATION OF THE SNEEDEN DOCTRINE TO THE SPECIAL CIRCUMSTANCES
PRESENTED BY GEORGIA LEGISLATION IN THE CASE OF NATIONAL BANKS SITUATED
IN THAT STATE.  THE LEWIS CASE, LIKE THE POTTORFF AND SNEEDEN CASES,
DID NOT BRING INTO ISSUE THE POWER OF NATIONAL BANKS WITH REFERENCE TO
FEDERAL DEPOSITS.  OF COURSE, THE LEWIS CASE NEITHER PROFESSED TO
ENLARGE, NOR COULD IT, THE SCOPE OF THE POTTORFF AND SNEEDEN
DECISIONS. 

FN3  THESE CONDITIONS, INCORPORATED IN CONTRACTS BETWEEN THE TREASURY
AND THE BANKS, REQUIRED COLLATERAL TO BE PLEDGED FOR ALL DEPOSITS IN
EXCESS OF ONE-HALF THE BANK'S PAID-IN CAPITAL.  IN ADDITION THE
TREASURY RESERVED THE RIGHT TO DEMAND ADDITIONAL SECURITY WHENEVER IT
WAS THOUGHT PRUDENT.  EXEC. DOC. NO. 2, 23RD CONG., 1ST SESS., VOL. 1,
P. 36; PHILLIPS, OP. CIT., PP. 53-55; GIRARD, THE INDEPENDENT TREASURY,
P. 17. 

FN4  SEE MCDAIRMID, GOVERNMENT CORPORATIONS AND FEDERAL FUNDS, 31 AM.
POL.  SCIENCE REV. 1095; FEDERAL CORPORATIONS AND CORPORATE AGENCIES,
16 HARV. BUS.  REV.  436.  THE CORPORATIONS, OF COURSE, PERFORM
"GOVERNMENTAL" FUNCTIONS.  GRAVES V. O'KEEFE, 306 U.S. 466. 

MR. JUSTICE REED AND MR. JUSTICE MURPHY TOOK NO PART IN THE
DISPOSITION OF THIS CASE. 

MR. JUSTICE ROBERTS, DISSENTING: 

THE COURT BELOW FOLLOWED AND APPLIED THE DECISIONS OF THIS COURT IN
TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245, MARION V. SNEEDEN,
291 U.S. 262, AND LEWIS V. FIDELITY & DEPOSIT CO., 292 U.S. 559. 

IT IS TRUE THAT THOSE CASES PRESENTED THE QUESTION WHETHER NATIONAL
BANKS ARE AUTHORIZED TO GIVE SECURITY FOR PRIVATE DEPOSITS AND THOSE OF
STATE AGENCIES.  BUT THE BASIS OF EACH OF THE DECISIONS WAS THAT
NATIONAL BANKS ARE WITHOUT POWER TO PLEDGE ASSETS AS SECURITY FOR ANY
DEPOSITS, IN THE ABSENCE OF EXPRESS LEGISLATIVE SANCTION. 
PARADOXICALLY, THE OPINION OF THE COURT, WHILE RECOGNIZING THE
AUTHORITY, IN THE FIELD OF BANKING, OF MR. JUSTICE BRANDEIS, WHO
ANNOUNCED THE OPINIONS IN ALL THREE CASES FOR A UNANIMOUS COURT,
REJECTS THE FUNDAMENTAL PRINCIPLE OF THE OPINIONS.  WHEREAS IN THE
LEWIS CASE MR. JUSTICE BRANDEIS ANNOUNCED IN PLAIN TERMS THAT, IN THE
ABSENCE OF EXPRESS AUTHORIZATION, A NATIONAL BANK HAS "NO POWER TO MAKE
ANY PLEDGE TO SECURE DEPOSITS EXCEPT THE FEDERAL DEPOSITS SPECIFICALLY
PROVIDED FOR BY ACTS OF CONGRESS," THE OPINION OF THE COURT SPELLS OUT
SUCH POWER DESPITE "THE SILENCE OF THE ACT." 

IN THE TEXAS & PACIFIC AND MARION CASES THE OPINIONS POINT OUT THAT
WHENEVER CONGRESS HAS INTENDED THAT SECURITY SHOULD BE TAKEN FOR
DEPOSITS OF GOVERNMENT FUNDS SPECIFIC AUTHORITY HAS BEEN GRANTED.  FN1
THAT WHAT WAS THUS SAID BY MR. JUSTICE BRANDEIS WAS DEEMED NECESSARY TO
THE DECISIONS AND WAS THE DELIBERATE CONCLUSION OF THE COURT IS
EVIDENCED BY HIS STATEMENT IN LEWIS V. FIDELITY CO., AT P. 564: 

"IN TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245, AND MARION V.
SNEEDEN, 291 U.S. 262, ...  WE HELD THAT A NATIONAL BANK HAD, PRIOR TO
THE ACT OF JUNE 25, 1930, NO POWER TO MAKE ANY PLEDGE TO SECURE
DEPOSITS EXCEPT THE FEDERAL DEPOSITS SPECIFICALLY PROVIDED FOR BY ACTS
OF CONGRESS." 

NOW IT IS SAID THAT THESE CASES INCORRECTLY STATE THE GOVERNING
PRINCIPLE.  THAT PRINCIPLE IS NOW SAID TO BE THAT CONGRESS CANNOT HAVE
INTENDED TO LIMIT THE AUTHORITY OF BANKS TO GIVE SECURITY IN CASES
WHERE ADMINISTRATIVE OFFICERS IN CHARGE OF GOVERNMENT FUNDS HAVE DEEMED
IT APPROPRIATE THAT SECURITY SHOULD BE GIVEN.  IN OTHER WORDS, DESPITE
THE WITHHOLDING OF ANY GRANT OF POWER TO INSTITUTIONS WHOSE POWERS ARE
ONLY THOSE GRANTED,  FN2  A POWER IS SPELLED OUT. 

THE ATTEMPT TO BUTTRESS THE IMPLICATION OF THE POWER FROM THE FACT
THAT FEDERAL AGENCIES HAVE HERETOFORE EXACTED SECURITY, AND THAT THE
COMPTROLLER OF THE CURRENCY HAS BEEN OF THE VIEW THAT SUCH PLEDGES WERE
NOT IN VIOLATION OF THE ACT, IS ANSWERED BY WHAT WAS SAID IN MARION V.
SNEEDEN (P. 269): 

"COMPTROLLERS OF THE CURRENCY KNEW THAT THIS WAS BEING DONE; AND THEY
ASSUMED THAT THE BANKS HAD POWER SO TO DO.  BUT THE ASSUMPTION WAS
ERRONEOUS." 

I THINK THAT AS THE COURT OF APPEALS FOLLOWED THE PRINCIPLE RIGHTLY
APPLIED IN THE DECISIONS OF THIS COURT ITS JUDGMENT SHOULD BE
AFFIRMED. 

FN1  SEE TEXAS & PACIFIC RY. CO. V. POTTORFF, P. 257, NOTE 11; MARION
V. SNEEDEN, P. 268. 

FN2  "THE MEASURE OF THEIR POWERS IS THE STATUTORY GRANT; AND POWERS
NOT CONFERRED BY CONGRESS ARE DENIED."  TEXAS & PACIFIC RY. CO. V.
POTTORFF, P. 253. 

THE CHIEF JUSTICE AND MR. JUSTICE MCREYNOLDS JOIN IN THIS OPINION. 
..END :























WOODRING V. WARDELL, 309 U.S. 527 


NO. 5.  ARGUED OCTOBER 10, 11, 1939.  - DECIDED MARCH 25, 1940.  - 69
APP. D.C. 280 - 100 F.2D 690, REVERSED. 


DECIDED UPON THE AUTHORITY OF THE CASE LAST PRECEDING. 

WOODRING, SECRETARY OF WAR, ET AL. V. WARDELL, RECEIVER. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 306 U.S. 626, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED BY THE RECEIVER OF A NATIONAL BANK AGAINST THE PETITIONERS. 

THERE IS NO CONGRESSIONAL POLICY GIVING PREFERENCE TO GOVERNMENT
DEPOSITS.  THOUGH CONGRESS GAVE CLAIMS OF THE UNITED STATES AGAINST
INSOLVENTS PRIORITY OVER ALL OTHERS, THE RULE IS INAPPLICABLE TO CLAIMS
AGAINST INSOLVENT NATIONAL BANKS. 

THE GENERAL POWER GIVEN TO NATIONAL BANKS TO SECURE PUBLIC DEPOSITS
RELATES SPECIFICALLY TO PUBLIC MONEY OF THE UNITED STATES.  WHENEVER
CONGRESS DESIGNED TO AUTHORIZE THE SECURING OF DEPOSITS OF FUNDS WHICH,
STRICTLY SPEAKING, MIGHT NOT BE UNITED STATES PUBLIC MONEY, IT HAS DONE
SO BY A SPECIFIC ACT. 

IT WAS RECOGNIZED AT THE TIME THESE DEPOSITS WERE MADE, AND SINCE,
THAT THEY DID NOT CONSTITUTE PUBLIC MONEY OF THE UNITED STATES AND DID
NOT FALL UNDER ANY STATUTE AUTHORIZING THE SECURING OF DEPOSITS IN
NATIONAL BANKS. 

THE PLEDGES ADMITTEDLY WERE NOT MADE UNDER U.S.C., TITLE 12, SEC.
90. 

THERE IS NO SPECIFIC ACT OF CONGRESS, AND NO RULE OR REGULATION
HAVING THE EFFECT OF SUCH AN ACT, AUTHORIZING THE PLEDGE OF SECURITIES
BY NATIONAL BANKS TO SECURE DEPOSITS OF CANAL ZONE MONEY ORDER FUNDS. 

THE LACK OF STATUTORY AUTHORITY CAN NOT BE SUPPLIED EITHER BY CUSTOM
OR USAGE, OR BY THE SANCTION AND APPROVAL OF THE COMPTROLLER OF THE
CURRENCY OR OTHER EXECUTIVE OFFICERS. 

BEING UNAUTHORIZED, THE PLEDGE WAS VOID, AND NEITHER THE PLEDGEES,
THE CANAL ZONE, NOR THE UNITED STATES ACQUIRED ANY RIGHT OR INTEREST IN
THE ILLEGALLY PLEDGED BONDS OR THE PROCEEDS THEREOF, WHICH REMAINED THE
PROPERTY OF THE BANK.  AND THE RECEIVER IS ENTITLED TO RECOVER THE
PROPERTY. 

SINCE THE POSSESSION OF PETITIONERS DERIVES FROM A VOID ACT, THEIR
POSSESSION IS PERSONAL, NOT OFFICIAL, AND A SUIT AGAINST THEM IS NOT A
SUIT AGAINST THE UNITED STATES. 

THE DOCTRINE OF SOVEREIGN IMMUNITY DOES NOT APPLY, BECAUSE THE UNITED
STATES, HAVING NO INTEREST IN THE FUND SOUGHT TO BE RECOVERED, IS NOT
AN INDISPENSABLE PARTY TO THE SUIT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO INLAND WATERWAYS CORP. V. YOUNG, ANTE, P.
517.  THE DISTRICT NATIONAL BANK PLEDGED SOME OF ITS ASSETS TO SECURE
DEPOSITS MADE BY THE SECRETARY OF WAR ON BEHALF OF THE PANAMA CANAL
ZONE.  THE BANK BECAME INSOLVENT IN 1933, AND THE PLEDGED ASSETS WERE
SOLD.  RESPONDENT, THE BANK'S RECEIVER, BROUGHT THIS ACTION TO RECOVER
THAT PART OF THE PROCEEDS WHICH REPRESENTED AN AMOUNT IN EXCESS OF
DIVIDENDS PAID TO THE ORDINARY DEPOSITORS.  THE DISTRICT COURT HELD
THAT THE PLEDGES WERE ULTRA VIRES AND GAVE JUDGMENT FOR THE
RESPONDENT.  THE COURT OF APPEALS AFFIRMED.  69 APP. D.C. 280; 100 F.2D
690. 

FOR THE REASONS STATED IN INLAND WATERWAYS CORP. V. YOUNG, ANTE, WE
ARE OF OPINION THAT THE PLEDGES GIVEN BY THE BANK WERE VALID, AND THAT
THE JUDGMENT BELOW SHOULD BE REVERSED. 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS, AND MR. JUSTICE ROBERTS,
FOR THE REASONS SET FORTH IN THEIR DISSENTING OPINION IN INLAND
WATERWAYS CORP. V. YOUNG, ANTE, P. 525, DISSENT HERE. 

MR. JUSTICE REED AND MR. JUSTICE MURPHY TOOK NO PART IN THE
DISPOSITION OF THIS CASE. 
..END :

















WHITNEY V. TAX COMMISSION, 309 U.S. 530 


NO. 541.  ARGUED FEBRUARY 28, 29, 1940.  - DECIDED MARCH 25, 1940.  -
281 N.Y. 297 - 22 N.E.2D 379, AFFIRMED. 


A STATUTE OF NEW YORK, AMENDING THE 1930 ESTATE TAX LAW, OPERATES TO
REQUIRE INCLUSION IN THE GROSS ESTATE OF THE DECEDENT, FOR THE PURPOSE
OF COMPUTING THE ESTATE TAX, OF PROPERTY IN RESPECT OF WHICH THE
DECEDENT EXERCISED AFTER 1930 BY WILL A NON-GENERAL POWER OF
APPOINTMENT CREATED PRIOR TO THAT YEAR.  THE STATUTE REACHES SUCH
TRANSFERS UNDER POWERS OF APPOINTMENT AS UNDER THE PREVIOUS STATUTE
ESCAPED TAXATION.  HELD: 

1.  THE INCLUSION IN THE GROSS ESTATE OF A DECEDENT OF PROPERTY NEVER
OWNED BY HER BUT APPOINTED BY HER WILL UNDER A LIMITED POWER WHICH
COULD NOT BE EXERCISED IN FAVOR OF THE DECEDENT, HER CREDITORS, OR HER
ESTATE, DID NOT DENY DUE PROCESS TO THOSE WHO INHERITED THE DECEDENT'S
PROPERTY, EVEN THOUGH, BECAUSE THE TAX RATE WAS PROGRESSIVE, THE NET
AMOUNT THEY INHERITED FROM HER WAS LESS THAN IT WOULD HAVE BEEN IF THE
APPOINTED PROPERTY HAD NOT BEEN INCLUDED IN THE GROSS ESTATE.  P. 540. 

2.  CONSIDERING THE HISTORY AND PURPOSE OF THE STATUTE, THE FACTS
THAT IT APPLIES ONLY TO SPECIAL POWERS OF APPOINTMENT CREATED PRIOR TO
1930 AND EXERCISED THEREAFTER, AND THAT OTHER SPECIAL POWERS ARE TAXED
IN THE ESTATE OF THE DONOR RATHER THAN THAT OF THE DONEE, DOES NOT
RENDER IT VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  BINNEY V. LONG, 299 U.S. 280, DISTINGUISHED.  P. 541. 

WHITNEY ET AL., EXECUTORS, ET AL. V. STATE TAX COMMISSION OF NEW
YORK. 

APPEAL FROM THE SURROGATE'S COURT OF NEW YORK. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT SUSTAINING THE
CONSTITUTIONALITY OF A NEW YORK ESTATE TAX. 

AN ESTATE TAX WHICH REQUIRES INCLUSION IN THE DECEDENT'S TAXABLE
ESTATE OF PROPERTY IN RESPECT OF WHICH SHE EXERCISED ONLY A LIMITED
POWER OF APPOINTMENT, WHICH SHE WAS PRECLUDED FROM EXERCISING FOR THE
BENEFIT OF HERSELF, HER CREDITORS OR HER ESTATE, AND WHICH PROPERTY
NEVER AT ANY TIME BELONGED TO HER, CONSTITUTES AN ARBITRARY AND
CAPRICIOUS ALLOCATION OF THE TAX BURDEN. 

AN ESTATE TAX MAY PROPERLY INCLUDE IN ITS MEASURE PROPERTY NOT
TECHNICALLY OWNED BY THE DECEDENT AT DEATH IF THE DECEDENT STOOD IN A
RELATIONSHIP TO THE PROPERTY WHICH MIGHT FAIRLY BE REGARDED AS THE
EQUIVALENT OF OWNERSHIP.  BULLEN V. WISCONSIN, 240 U.S. 625; LESER V.
BURNET, 46 F.2D 756.  BUT THE ASSUMPTION OF SUCH A RELATIONSHIP IN THIS
CASE IS ERRONEOUS AND ARBITRARY. 

THE INCLUSION OF PROPERTY IN RESPECT OF WHICH THE DECEDENT EXERCISED
A GENERAL POWER OF APPOINTMENT IS VALID BECAUSE A GENERAL POWER GIVES
THE GRANTEE OF THE POWER THE SUBSTANTIAL EQUIVALENT OF OWNERSHIP, SINCE
HE IS FREE TO EXERCISE IT IN FAVOR OF HIS CREDITORS AND THUS USE THE
PROPERTY FOR HIS OWN BENEFIT.  FIDELITY-PHILADELPHIA TRUST CO. V.
MCCAUGHN, 34 F.2D 600, 604; CERT. DEN., 280 U.S. 602; MORGAN V.
COMMISSIONER, 309 U.S. 78; CHASE NATIONAL BANK V. UNITED STATES, 278
U.S. 327; HELVERING V. PARKER, 84 F.2D 838; PENNSYLVANIA CO. V.
COMMISSIONER, 79 F.2D 295; CERT. DEN., 296 U.S. 651; LEVY'S ESTATE V.
COMMISSIONER, 65 F.2D 412; MCKELVY V. COMMISSIONER, 82 F.2D 395;
BALLARD V. HELBURN, 9 F.SUPP.  812; AFF'D 85 F.2D 613; T.D. 4729, MARCH
18, 1937; REG. 80, ART. 25. 

THE NECESSITY OF PREVENTING EVASION OR AVOIDANCE OF THE TAX PERMITS
THE INCLUSION OF PROPERTY ONCE OWNED BY THE DECEDENT IN CASES WHERE THE
TRANSACTION AS A WHOLE MAY FAIRLY BE REGARDED AS A SUBSTITUTE FOR A
TESTAMENTARY DISPOSITION.  UNITED STATES V. WELLS, 283 U.S. 102, 116
117; REINECKE V. NORTHERN TRUST CO., 278 U.S. 339; HELVERING V. CITY
BANK CO., 296 U.S. 85; PORTER V. COMMISSIONER, 288 U.S. 436; TYLER V.
UNITED STATES, 281 U.S. 497; UNITED STATES V. JACOBS, 306 U.S. 363;
HELVERING V. HELMHOLZ, 296 U.S. 93; HELVERING V. HALLOCK, 309 U.S.
106.  NOT SO, HOWEVER, WHERE THE PROPERTY HAS NEVER BELONGED TO THE
DECEDENT. 

WHERE THE DECEDENT HAS NEVER HAD ANY BENEFICIAL INTEREST IN THE
PROPERTY IN QUESTION, EITHER AT DEATH OR AT ANY PREVIOUS TIME, THE
INCLUSION OF THE PROPERTY IN HIS TAXABLE ESTATE DENIES DUE PROCESS. 
THE TAX IN SUCH A CASE CAN BE BASED ONLY UPON AN ARBITRARY ASSUMPTION
WHICH IS UNFOUNDED IN FACT.  HEINER V. DONNAN, 285 U.S. 312; HOEPER V.
TAX COMMISSION, 284 U.S. 206; SCHLESINGER V. WISCONSIN, 270 U.S. 230;
NICHOLS V. COOLIDGE, 274 U.S. 531; FREW V. BOWERS, 12 F.2D 625. 

THE FACT THAT A LEGACY TAX MIGHT HAVE BEEN IMPOSED UPON THE RECEIPT
OF THIS PROPERTY BY THE APPOINTEES DOES NOT JUSTFY THE PRESENT TAX. 
SEE NICHOLS V. COOLIDGE, 274 U.S. 531, 541; SALTONSTALL V. SALTONSTALL,
276 U.S. 260, 270-1; COOLIDGE V. LONG, 282 U.S. 582, 608, 609, 631-2;
CF., KNOWLTON V. MOORE, 178 U.S. 41, 49, 77; Y.M.C.A. V. DAVIS, 264
U.S. 47, 50; EDWARDS V. SLOCUM, 264 U.S. 61, 62-3. 

IN EXERCISING THE SPECIAL POWER IN TRUST GRANTED TO HER IN THE WILL
OF HER HUSBAND, THE DECEDENT WAS MERELY ACTING AS HER HUSBAND'S
FIDUCIARY AGENT IN CONNECTION WITH THE DISPOSITION OF HIS PROPERTY. 
THE CIRCUMSTANCE THAT THE DECEDENT PERFORMED HER FIDUCIARY FUNCTION
WITH REFERENCE TO HER HUSBAND'S PROPERTY BY MEANS OF THE SAME
INSTRUMENT BY WHICH SHE DISPOSED OF HER OWN PROPERTY DOES NOT JUSTIFY
INCLUDING HER HUSBAND'S PROPERTY IN THE MEASURE OF A TAX ON THE
TRANSMISSION OF HER ESTATE. 

THE EQUAL PROTECTION CLAUSE IMPOSES A MORE EXACTING REQUIREMENT OF
FAIRNESS THAN THE DUE PROCESS CLAUSE.  TRUAX V. CORRIGAN, 257 U.S. 312;
LA BELLE IRON WORKS V. UNITED STATES, 256 U.S. 377, 392. 

THE STATUTE HERE DISCRIMINATES BETWEEN THE ESTATES OF DECEDENTS WHO
HAVE EXERCISED NON-BENEFICIAL POWERS OF APPOINTMENT AND THOSE WHO HAVE
NOT. 

AN ESTATE PRECISELY LIKE THAT OF THE DECEDENT, SO FAR AS ANY PROPERTY
IN WHICH THE DECEDENT HAD EVER HAD ANY BENEFICIAL INTEREST IS
CONCERNED, WOULD PAY ONLY $360,000 IN ESTATE TAX, WHEREAS DECEDENT'S
ESTATE MUST PAY $1,212,000. 

THOSE WHO SUCCEED TO THE DECEDENT'S OWN PROPERTY MUST PAY ABOUT
$165,000 MORE THAN IF THE APPOINTED PROPERTY HAD NOT BEEN INCLUDED. 
SUCH IS THE EFFECT OF THE APPLICATION OF THE PROGRESSIVE RATE SCALE. 

THERE IS NO REASONABLE BASIS FOR THE DIFFERENCE IN TREATMENT.  AIR
WAY ELECTRIC APPLIANCE CORP. V. DAY, 266 U.S. 71; SMITH V. CAHOON, 283
U.S. 553; IOWA-DES MOINES NATIONAL BANK V. BENNETT, 284 U.S. 239. 

THE CLASSIFICATION WAS NOT OCCASIONED BY LOCAL CONDITIONS KNOWN TO
THE LEGISLATURE; THERE IS NO ROOM FOR THE OPERATION OF ANY PRESUMPTION
BASED UPON THE LEGISLATURE'S GREATER KNOWLEDGE OF LOCAL CONDITIONS. 

THE COURT WILL NOT INDULGE PURE CONJECTURE TO JUSTIFY THE
DISCRIMINATION.  GULF, C. & S.F. RY. CO. V. ELLIS, 165 U.S. 150, 154;
BINNEY V. LONG, 299 U.S. 280, 294. 

THE ONLY SUGGESTION AS TO A POSSIBLE REASON OF POLICY JUSTIFYING THE
DISCRIMINATION, IS THAT THE 1932 AMENDMENT WAS REQUIRED TO PREVENT THE
ESCAPE OF THE PROPERTY HERE INVOLVED FROM ALL DEATH TAXATION THROUGH
THE INADVERTENT REPEAL, BY THE ESTATE TAX LAW, OF THE OLD LEGACY TAX
WHICH WOULD HAVE BEEN PAYABLE UPON THE EXERCISE, AFTER THE EFFECTIVE
DATE OF THE ESTATE TAX LAW, OF THE POWERS THERETOFORE CREATED.  THIS
WOULD HAVE JUSTIFIED NOTHING MORE THAN THE RESTORATION OF THE TAX WHICH
HAD BEEN INADVERTENTLY REPEALED; IT COULD NOT JUSTIFY THE IMPOSITION OF
A NEW AND DIFFERENT TAX BASED UPON AN ERRONEOUS AND ARBITRARY FACTUAL
ASSUMPTION AND PRODUCING THE OPPRESSIVE AND DISCRIMINATORY EFFECT SET
FORTH. 

IT WILL NOT DO TO URGE THAT IT WAS EASIER TO IMPOSE THE NEW ESTATE
TAX THAN TO RESTORE THE OLD LEGACY TAX.  EVEN IF THERE WERE ANY FACTUAL
BASIS FOR SUCH A CLAIM, IT IS CLEAR THAT SUCH AN ATTEMPTED
JUSTIFICATION WOULD NOT MEET WITH THE APPROVAL OF THIS COURT.  STEWART
DRY GOODS CO. V. LEWIS, 294 U.S. 550, 559-60. 

THE APPLICABILITY OF THE STATUTE ONLY TO NON-GENERAL POWERS OF
APPOINTMENT CREATED BEFORE SEPTEMBER 1, 1930, CONSTITUTES AN ADDITIONAL
GROUND OF INVALIDITY UNDER THE EQUAL PROTECTION CLAUSE.  IT IS CLEAR
THAT THE APPLICABILITY OF SUBDIVISION 7-A DEPENDS ON WHETHER THE POWER
OF APPOINTMENT INVOLVED WAS CREATED BEFORE SEPTEMBER 1, 1930, IN WHICH
CASE SUBDIVISION 7-A MAY APPLY, OR AFTER SEPTEMBER 1, 1930, IN WHICH
CASE SUBDIVISION 7-A CAN NEVER APPLY. 

SUCH A DIFFERENCE IN TREATMENT, BASED SOLELY ON THE DATE WHEN THE
POWER WAS CREATED, CONSTITUTES AN ARBITRARY AND CAPRICIOUS
CLASSIFICATION VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.  BINNEY V.
LONG, 299 U.S. 290. 

THAT THE PRESENT CASE INVOLVES AN ESTATE TAX RATHER THAN A LEGACY
TAX, MERELY SERVES TO AGGRAVATE THE DISCRIMINATION.  UNDER THE
MASSACHUSETTS STATUTE, THE AGGREGATION OF THE APPOINTIVE PROPERTY WITH
OTHER PROPERTY FOR THE PURPOSE OF THE GRADUATED RATE PROVISIONS WAS
ONLY AN AGGREGATION WITH OTHER PROPERTY GOING TO THE SAME BENEFICIARY. 
IN THE PRESENT CASE, THE EFFECT OF APPLYING SUBDIVISION 7-A HAS BEEN TO
AGGREGATE THE APPOINTIVE PROPERTY WITH ALL OF THE OTHER PROPERTY
COMPRISING THE DECEDENT'S TAXABLE ESTATE, NOT ONLY THE PROPERTY GOING
TO THE SAME BENEFICIARIES, BUT ALSO ALL OF THE PROPERTY GOING TO
ENTIRELY DIFFERENT BENEFICIARIES. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

CORNELIUS VANDERBILT DIED IN 1899.  BY HIS WILL HE ESTABLISHED A
TRUST TO ISSUE A DESIGNATED ANNUAL INCOME TO HIS WIFE.  UPON HER DEATH,
MRS. VANDERBILT WAS ALSO GIVEN THE POWER TO DISPOSE OF THIS FUND AMONG
FOUR OF THEIR CHILDREN, IN SUCH PROPORTIONS AS SHE MIGHT CHOOSE.  IN
DEFAULT OF HER EXERCISE OF THIS DISCRETIONARY POWER, THE FUND WAS TO GO
TO THE CHILDREN EQUALLY.  MRS. VANDERBILT DIED IN 1934, AND BY HER WILL
AVAILED HERSELF OF THE POWER.  THE TAXING AUTHORITIES OF NEW YORK
INCLUDED THE VALUE OF THIS TRUST FUND IN HER GROSS ESTATE, AND ON THIS
BASIS COMPUTED MRS. VANDERBILT'S ESTATE TAX.  THE COURT OF APPEALS OF
NEW YORK, FINDING THAT THE APPLICABLE NEW YORK LEGISLATION HAD BEEN
PROPERLY CONSTRUED BY THE TAX COMMISSION, SUSTAINED ITS VALIDITY.  281
N.Y. 297; 22 N.E.2D 379.  THE RESULT OF THIS DECISION IS TO REDUCE THE
AMOUNT AVAILABLE FOR DISTRIBUTION AMONG THE BENEFICIARIES OF MRS.
VANDERBILT'S INDEPENDENT PROPERTY BELOW WHAT IT WOULD HAVE BEEN HAD THE
TAX BEEN ASSESSED ON THE BASIS OF THAT PROPERTY WITHOUT THE INCLUSION
OF THE TRUST FUND WHICH CAME FROM HER HUSBAND.  THESE BENEFICIARIES,
AND THE EXECUTORS OF THE WILL, CLAIM THAT THE EXACTION THUS SANCTIONED
BY NEW YORK VIOLATES THE FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION. 

THE CONTESTED STATUTE, NEW YORK LAWS OF 1932, CH. 320, DERIVES
MEANING AS AN INCIDENT IN THE HISTORY OF NEW YORK'S PRESENT SYSTEM OF
DEATH TAXES.  THAT SYSTEM HAD ITS BEGINNING IN 1885.  THE ORIGINAL ACT
TAXED INDIVIDUAL ECONOMIC BENEFITS DERIVED UPON DEATH RATHER THAN THE
TOTAL AMOUNT OF THE ESTATE.  LAWS OF 1885, CH. 483.  UNDER THIS
LEGISLATION, THE TRANSMISSION OF PROPERTY SUBJECT TO POWERS OF
APPOINTMENT, EITHER GENERAL OR SPECIAL, WAS ATTRIBUTED TO THE ESTATE OF
THE DONOR.  MATTER OF STEWART, 131 N.Y. 274; 30 N.E. 184; AND THE
SUBSEQUENT EXERCISE OF THE POWER WAS NOT TAXED.  MATTER OF HARBECK, 161
N.Y. 211; 55 N.E. 850.  THE ADMINISTRATIVE AWKWARDNESS INCIDENT TO THIS
TREATMENT OF APPOINTIVE PROPERTY LED TO AN AMENDMENT WHEREBY ALL
PROPERTY PASSING UNDER POWERS OF APPOINTMENT WAS ATTRIBUTED TO THE
DONEE, NOT TO THE DONOR.  LAWS OF 1897, CH. 284.  THIS WAS THE NEW YORK
LAW WHEN CORNELIUS VANDERBILT DIED.  IN 1930, EXPERIENCE WITH THE
LEGACY TAX IN NEW YORK AND ELSEWHERE LED TO A SHIFT IN THE BASIS FOR
IMPOSING DEATH DUTIES.  ACTING UPON THE RESULTS OF AN INQUIRY INTO THE
DEFECTS AND INADEQUACIES OF A TAXING SYSTEM BORN OF OTHER TIMES AND
CALCULATED TO MEET DIFFERENT NEEDS, NEW YORK IN 1930 SUPPLANTED HER
SYSTEM WHICH TAXED THE INDIVIDUAL LEGATEE'S PRIVILEGE OF SUCCESSION BY
ONE WHICH MEASURED THE LEVY BY THE SIZE OF THE TOTAL ESTATE.  LAWS OF
1930, CH. 710.  UNDER THIS LEGISLATION, PROPERTY SUBJECT TO A POWER OF
APPOINTMENT - WHETHER GENERAL OR SPECIAL - IS INCLUDED IN THE DONOR'S
GROSS ESTATE.  IF THE POWER IS GENERAL, ITS LATER EXERCISE SWEEPS THE
APPOINTIVE PROPERTY INTO THE DONEE'S GROSS ESTATE ALSO. 

AS IS APT TO HAPPEN IN EXTENSIVE LEGISLATIVE READJUSTMENTS DEALING
WITH COMPLEX PROBLEMS, THE EFFECT OF THE CHANGE IN 1930 UPON SOME OF
THE MORE SPECIALIZED SITUATIONS COMING WITHIN THE GENERAL POLICY WAS
OVERLOOKED.  POWERS CREATED BETWEEN 1885 AND 1897 HAD BEEN TAXABLE AT
THE DONOR'S DEATH.  SPECIAL POWERS CREATED AFTER 1897 AND EXERCISED
BEFORE 1930 HAD BEEN TAXED AT THE DONEE'S DEATH.  POWERS CREATED AND
EXERCISED AFTER 1930 WERE INCLUDED IN THE DONOR'S ESTATE.  BUT POWERS
CREATED AFTER 1897 AND NOT EXERCISED BEFORE 1930 WERE OUTSIDE THE
LEGISLATIVE FRAMEWORK.  THUS AN UNINTENDED IMMUNITY FROM THE INCIDENCE
OF TAXATION HAD BEEN GIVEN TO SPECIAL POWERS OF APPOINTMENT CREATED
AFTER 1897 BUT NOT EXERCISED BEFORE THE PASSAGE OF THE 1930
LEGISLATION.  WHEN EXPERIENCE DISCLOSED THIS OMISSION, THE LEGISLATURE
REMOVED IT IN 1932.  THE AMENDMENT OF THAT YEAR, WHICH IS COPIED IN THE
MARGIN,*  INCLUDED IN THE DONEE'S GROSS ESTATE APPOINTIVE PROPERTY
WHICH WAS NOT TAXABLE AT THE DONOR'S DEATH BUT WOULD HAVE BEEN TAXABLE
UNDER THE SUPERSEDED STATUTORY PROVISION OF 1897.  IT IS UNDER THIS
AMENDMENT THAT NEW YORK HAS IMPOSED THE TAX HERE ASSAILED.  THIS BRINGS
US TO A CONSIDERATION OF APPELLANTS' CLAIMS. 

*THE AMENDMENT PROVIDED THAT THERE SHOULD BE INCLUDED IN THE
DECEDENT'S GROSS ESTATE INTERESTS OF WHICH THE FOLLOWING WAS PART OF
THE ENUMERATION OF DEFINED CATEGORIES: 

"7-A.  TO THE EXTENT OF ANY PROPERTY PASSING UNDER A POWER OF
APPOINTMENT EXERCISED BY THE DECEDENT (A) BY WILL, OR (B) BY DEED
EXECUTED IN CONTEMPLATION OF, OR INTENDED TO TAKE EFFECT IN POSSESSION
OR ENJOYMENT AT OR AFTER, HIS DEATH, EXCEPT IN CASE OF A BONA FIDE SALE
FOR AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH  ...
PROVIDED THAT THE TRANSFER OF SUCH PROPERTY IS NOT OR WAS NOT SUBJECT
TO A DEATH TAX IN THE ESTATE OF THE GRANTOR OF SUCH POWER BUT WOULD
HAVE BEEN SO TAXABLE EXCEPT FOR A STATUTE PROVIDING THAT THE TAX ON THE
TRANSFER OF SUCH PROPERTY SHOULD BE IMPOSED IN THE ESTATE OF THE
GRANTEE OF SUCH POWER IN THE EVENT OF THE EXERCISE THEREOF." 

THE LEGISLATIVE HISTORY OF THIS MEASURE WAS THUS SUMMARIZED IN THE
OPINION OF SURROGATE FOLEY: "AN EXPLANATORY MEMORANDUM OF THE STATE TAX
COMMISSION PREPARED AT THE TIME OF THE DRAFTING AND INTRODUCTION OF THE
LEGISLATIVE BILL HAS BEEN SUBMITTED TO THE SURROGATE BY CONSENT OF THE
PARTIES.  IT IS ILLUMINATIVE OF THE REASONS WHICH LED TO THE ENACTMENT
OF NEW SUBDIVISION 7-A. THE STATE TAX COMMISSION POINTED OUT THAT THE
EXISTING LAW IN 1932, PRIOR TO THE ENACTMENT OF THE SUBDIVISION,
PERMITTED THE FUND TO ESCAPE TAXATION IN BOTH THE ESTATE OF THE GRANTOR
AND THE ESTATE OF THE GRANTEE OF THE POWER.  IT WAS STATED IN REFERENCE
TO THE MEASURE:  'THIS BILL PROVIDES THAT PROPERTY TRANSFERRED BY THE
EXERCISE OF A SPECIAL OR LIMITED POWER OF APPOINTMENT SHALL BE INCLUDED
IN THE DECEDENT'S GROSS ESTATE FOR THE PURPOSE OF THE PRESENT ESTATE
TAX IN THE EVENT IT IS NOT TAXABLE OR HAS NOT BEEN TAXED IN THE ESTATE
OF THE GRANTOR OF THE POWER AND THUS INSURES THAT ONE DEATH TAX WILL BE
IMPOSED UPON SUCH PROPERTY.'"  MATTER OF VANDERBILT, 163 MISC. (N.Y.) 
667, 676; 297 N.Y.S. 554, 565.    AS AGAINST THIS ATTEMPT BY THE STATE
TO DEVISE A HARMONIOUS TAXING SYSTEM, APPELLANTS URGE THAT NEW YORK
EXACTS AN UNJUSTIFIABLY HEAVIER ESTATE TAX FROM THE BENEFICIARIES OF
MRS. VANDERBILT'S UNRESTRICTED PROPERTY BECAUSE IN THE ACCOUNTING OF
HER ESTATE PROPERTY WAS INCLUDED OF WHICH SHE WAS NOT THE "BENEFICIAL
OWNER."  ATTACKING THE 1932 ACT FROM ANOTHER POINT OF VIEW, THEY CLAIM
THAT NEW YORK HAD NO AUTHORITY TO DRAW A TAXING LINE BETWEEN SPECIAL
POWERS CREATED PRIOR TO 1930 AND THOSE ESTABLISHED THEREAFTER. 

LARGE CONCEPTS LIKE "PROPERTY" AND "OWNERSHIP" CALL FOR CLOSE
ANALYSIS, ESPECIALLY WHEN TAX LEGISLATION IS UNDER SCRUTINY.  MRS.
VANDERBILT, TO BE SURE, HAD, IN THE CONVENTIONAL USE OF THAT TERM, NO
"BENEFICIAL INTEREST" IN THE PROPERTY WHICH SHE TRANSFERRED THROUGH THE
EXERCISE OF HER POWER OF APPOINTMENT.  SHE COULD NOT, THAT IS TO SAY,
USE THE CORPUS OF THE TRUST HERSELF OR APPOINT IT TO HER ESTATE; NOR
COULD SHE HAVE APPLIED IT TO HER CREDITORS.  THESE QUALIFICATIONS UPON
MRS. VANDERBILT'S POWER OVER THE APPOINTIVE PROPERTY HAD A SIGNIFICANCE
DURING HER LIFETIME WHICH DEATH TRANSMUTED.  FOR WHEN THE END COMES,
THE POWER THAT PROPERTY GIVES, NO MATTER HOW ABSOLUTELY IT MAY HAVE
BEEN HELD, ALSO COMES TO AN END - EXCEPT IN SO FAR AS THE POWER TO
DETERMINE ITS SUCCESSION AND ENJOYMENT MAY BE PROJECTED BEYOND THE
GRAVE.  BUT THE EXERCISE OF THIS POWER IS PRECISELY THE PRIVILEGE WHICH
THE STATE CONFERS AND UPON WHICH IT SEIZES FOR THE IMPOSITION OF A
TAX.  IT IS NOT THE DECEDENT'S ENJOYMENT OF THE PROPERTY - THE
"BENEFICIAL INTEREST" - WHICH IS THE OCCASION FOR THE TAX, NOR EVEN THE
ACQUISITION OF SUCH ENJOYMENT BY THE INDIVIDUAL BENEFICIARIES. 
PRESUMABLY THE POLICY BEHIND ESTATE TAX LEGISLATION LIKE THAT OF NEW
YORK IS THE DIVERSION TO THE PURPOSES OF THE COMMUNITY OF A PORTION OF
THE TOTAL CURRENT OF WEALTH RELEASED BY DEATH. 

IN MAKING THIS DIVERSION, THE STATE IS NOT CONFINED TO THAT KIND OF
WEALTH WHICH WAS, IN COLLOQUIAL LANGUAGE, "OWNED" BY A DECEDENT BEFORE
DEATH, NOR EVEN TO THAT OVER WHICH HE HAD AN UNRESTRICTED POWER OF
TESTAMENTARY DISPOSITION.  IT IS ENOUGH THAT ONE PERSON ACQUIRES
ECONOMIC INTERESTS IN PROPERTY THROUGH THE DEATH OF ANOTHER PERSON,
EVEN THOUGH SUCH ACQUISITION IS IN PART THE AUTOMATIC CONSEQUENCE OF
DEATH OR RELATED TO THE DECEDENT MERELY BECAUSE OF HIS POWER TO
DESIGNATE TO WHOM AND IN WHAT PROPORTIONS AMONG A RESTRICTED CLASS THE
BENEFITS SHALL FALL. 

THE BOOKS ARE REPLETE WITH RECOGNITION OF THESE GENERAL PRINCIPLES. 
THUS THE FULL VALUE OF PROPERTY MAY BE TAXED AS PART OF A DECEDENT'S
GROSS ESTATE EVEN THOUGH HELD BY HIM MERELY AS A TENANT BY THE
ENTIRETY, TYLER V. UNITED STATES, 281 U.S. 497; LIKEWISE THE FULL VALUE
OF PROPERTY IN WHICH THE DECEDENT WAS ONLY A JOINT TENANT MAY BE TAXED
TO HIS ESTATE, UNITED STATES V. JACOBS, 306 U.S. 363.  IN NEITHER OF
THESE INSTANCES WAS THERE AN EXACT EQUATION BETWEEN THE "BENEFICIAL
INTEREST" OWNED BY THE DECEDENT JUST BEFORE HIS DEATH AND THAT BY WHICH
THE TAX WAS MEASURED.  AGAIN, THIS COURT FOUND NO DIFFICULTY IN
SUSTAINING A TAX ON THE TRANSFER OF PROPERTY CONVEYED IN TRUST BY A
DECEDENT DURING HIS LIFE, ALTHOUGH HE HAD DIVESTED HIMSELF OF ALL
BENEFICIAL INTEREST IN THE CORPUS AND HAD ONLY RESERVED THE POWER TO
CHANGE BENEFICIARIES, EXCLUDING, HOWEVER, HIMSELF AND HIS ESTATE FROM
THE RANGE OF CHOICE.  PORTER V. COMMISSIONER, 288 U.S. 436.  THE
ATTEMPT TO DIFFERENTIATE THE TIE THAT BINDS THESE CASES BY TREATING THE
INTER VIVOS TRANSFERS IN THESE DECISIONS AS MERE SUBSTITUTIONS FOR
TESTAMENTARY DISPOSITIONS, DISREGARDS THE EMPHASIS IN THESE CASES ON
THE PRACTICAL EFFECT OF DEATH IN BRINGING ABOUT A SHIFT IN ECONOMIC
INTEREST, AND THE POWER OF THE LEGISLATURE TO FASTEN ON THAT SHIFT AS
THE OCCASION FOR A TAX.  THIS BROADER BASE IS EMPHASIZED, FOR INSTANCE,
BY THE FACT THAT IN THE PORTER CASE THE DECEDENT HAD DIVESTED HIMSELF
OF ALL "BENEFICIAL INTEREST" IN THE TRUST PROPERTY PRIOR TO THE PASSAGE
OF THE TAXING ACT BY WHICH THE TRUST WAS INCLUDED IN THE VALUE OF HIS
GROSS ESTATE. 

A PERSON MAY BY HIS DEATH BRING INTO BEING GREATER INTERESTS IN
PROPERTY THAN HE HIMSELF HAS EVER ENJOYED, AND THE STATE MAY TURN
ADVANTAGES THUS REALIZED INTO A SOURCE OF REVENUE, AS ILLUSTRATED BY
EARLIER CASES DEALING WITH SPECIAL POWERS OF APPOINTMENT THAT ALSO CAME
HERE FROM NEW YORK.  ORR V. GILMAN, 183 U.S. 278; CHANLER V. KELSEY,
205 U.S. 466.  IN THESE CASES, TO BE SURE, A LEGACY TAX WAS ASSAILED -
A TAX, THAT IS, MEASURED BY THE SPECIFIC INTERESTS WHICH THE
BENEFICIARIES OF THE POWER RECEIVED.  HERE, THE GRIEVANCE IS ASSERTED
MORE PARTICULARLY BY THOSE SUCCEEDING TO MRS. VANDERBILT'S FREE
PROPERTY.  BUT IF DEATH MAY BE MADE THE OCCASION FOR TAXING PROPERTY IN
WHICH THE DECEDENT HAD NO "BENEFICIAL INTEREST," THEN THE MEASUREMENT
OF THAT TAX BY THE DECEDENT'S TOTAL WEALTH-DISPOSING POWER IS MERELY AN
EXERCISE OF LEGISLATIVE DISCRETION IN DETERMINING WHAT THE STATE SHALL
TAKE IN RETURN FOR ALLOWING THE TRANSFER.  THE ADOPTION OF THIS MEASURE
MAY, OF COURSE, IN THE CASE OF A GRADUATED TAX, BURDEN INDIVIDUAL
BENEFICIARIES BEYOND WHAT THEY WOULD BEAR IF THE SAME TAX RATE WERE
APPLIED TO THE VALUE OF THE UNRESTRICTED PROPERTY OF THE DECEDENT AND
THE PROPERTY OVER WHICH HE HAD BUT A RESTRICTED CONTROL WERE EXCLUDED. 
THERE IS NOTHING IN THE FOURTEENTH AMENDMENT TO PREVENT LEGISLATURES
FROM DEVISING DEATH DUTIES HAVING THIS EFFECT, NOR TO AUTHORIZE COURTS
TO DENY THEM THE RIGHT TO DO SO. 

THE CIRCUMSTANCES OF THE PRESENT CASE ILLUSTRATE THE PRACTICAL
CONSIDERATIONS WHICH MAY INDUCE A LEGISLATURE TO TREAT RESTRICTED AND
UNRESTRICTED PROPERTY AS A TAXING UNIT.  THE POTENTIAL INTERESTS OF THE
BENEFICIARIES OF MRS. VANDERBILT'S FREE PROPERTY ARE INTERTWINED WITH
THEIR INTERESTS IN THE APPOINTIVE PROPERTY.  THE DISPOSITIONS WHICH SHE
WAS FREE TO MAKE UNDER HER POWER OF APPOINTMENT SERVED TO ENHANCE HER
FREEDOM WITH RESPECT TO HER OWN PROPERTY.  HOW MRS. VANDERBILT WOULD
HAVE DISTRIBUTED HER INDIVIDUAL PROPERTY IF SHE HAD POSSESSED NO
CONTROL OVER THAT LEFT BY HER HUSBAND IS SPECULATIVE.  BUT IT IS
CERTAINLY WITHIN THE AREA OF LEGISLATIVE JUDGMENT TO ASSUME THAT
SPECIAL POWERS OF APPOINTMENT ARE ORDINARILY DESIGNED FOR ENDS SIMILAR
TO THOSE IN THE PRESENT CASE - NAMELY, TO ENLARGE THE DONEE'S RANGE OF
BOUNTY, HOWEVER NARROWLY RESTRICTED THE ENLARGEMENT MAY BE, TO A CIRCLE
OF BENEFICIARIES CLOSELY RELATED TO, IF NOT IDENTICAL WITH, THOSE WHOM
THE DONEE WOULD BE NATURALLY DISPOSED TO FAVOR.  TO THE EXTENT THAT
THIS IS TRUE, THERE IS COMPENSATION FOR THOSE WHO MAY SUCCEED TO THE
DONEE'S INDIVIDUAL PROPERTY, AND WHO MUST PAY A LARGER TAX, BECAUSE THE
APPOINTIVE PROPERTY IS INCLUDED IN THE GROSS ESTATE.  THE LEGISLATURE
CAN HARDLY PARTICULARIZE THE INSTANCES AND DRAW UP A TARIFF OF
COMPENSATIONS, AND IT IS CERTAINLY NOT THE PROVINCE OF COURTS TO MAKE
THE ATTEMPT.  IT SUFFICES THAT THE LEGISLATURE HAS SEEN FIT TO FRAME A
GENERAL ENACTMENT DRAWN ON LINES NOT OFFENSIVE TO EXPERIENCE AND AIMED
AT CURING A REVEALED INEQUALITY IN THE STATE'S TAXING SYSTEM. 

APPELLANTS VAINLY SEEK TO DRAW STRENGTH FROM SCHLESINGER V.
WISCONSIN, 270 U.S. 230; HOEPER V. TAX COMMISSION, 284 U.S. 206; AND
HEINER V. DONNAN, 285 U.S. 312.  THE DIFFERENCES OF OPINION TO WHICH
THESE CASES GAVE RISE ARE NOT HERE RELEVANT. 

BUT THERE REMAINS THE CLAIM OF APPELLANTS THAT IN DRAWING THE LINE
BETWEEN SPECIAL POWERS CREATED BEFORE 1930 AND THOSE HAVING A LATER
ORIGIN, NEW YORK RAN AFOUL OF THE EQUAL PROTECTION CLAUSE.  THE BRIEF
SUMMARY WE HAVE GIVEN OF THE HISTORY OF THIS LEGISLATION SEEMS A
SUFFICIENT ANSWER TO THE CHARGE OF PROSCRIBED DISCRIMINATION.  TO HAVE
CONTINUED THE COMPLETE IMMUNITY FROM TAXATION WHICH THE 1930
LEGISLATION HAD UNINTENTIONALLY CONFERRED UPON SPECIAL POWERS OF
APPOINTMENT CREATED BEFORE ITS PASSAGE WAS DEEMED BY NEW YORK TO HAVE
RESULTED IN SUBSTANTIAL INEQUALITY.  THE CORRECTION OF SUCH INEQUALITY
IS NOT A DENIAL OF THE EQUALITY COMMANDED BY THE FOURTEENTH AMENDMENT. 
IN THE AGE-OLD BUT INCREASINGLY DIFFICULT TASK OF TAPPING NEW SOURCES
OF REVENUE, NOTHING MAY MORE LEGITIMATELY ATTRACT THE ATTENTION OF
FINANCIAL STATESMEN THAN OPPORTUNITIES TO REACH PROPERTY WHICH HAS
ENJOYED IMMUNITY FROM TAX BURDENS BORNE BY OTHERS SIMILARLY SITUATED. 
WATSON V. STATE COMPTROLLER, 254 U.S. 122; WELCH V. HENRY, 305 U.S.
134. 

ACCEPTANCE OF BINNEY V. LONG, 299 U.S. 280, WOULD NOT CONSTRAIN US TO
HOLD DIFFERENTLY.  IN THE CIRCUMSTANCES CONFRONTING THE NEW YORK
LEGISLATURE, AS THE COURT OF APPEALS POINTED OUT, THE DISCRIMINATION
AFFECTING SPECIAL POWERS WAS NOT BASED UPON WHAT WAS DEEMED IN THE
BINNEY CASE TO BE A DATE "ARBITRARILY SELECTED BUT IS A LOGICAL
SOLUTION BY THE LEGISLATURE OF A PROBLEM WHICH IT WAS REQUIRED TO
MEET."  281 N.Y. AT 317.  ALL SPECIAL POWERS, WHETHER CREATED BEFORE OR
AFTER 1930, ARE TAXED IN NEW YORK.  IN ONE CASE, THEY ARE TAXED TO THE
DONOR'S ESTATE; IN THE OTHER - SINCE THE SAME TREATMENT WOULD BE
MANIFESTLY IMPRACTICABLE - TO THE DONEE'S.  DIFFERENCES IN
CIRCUMSTANCES BEGET APPROPRIATE DIFFERENCES IN LAW.  THE EQUAL
PROTECTION CLAUSE WAS NOT DESIGNED TO COMPEL UNIFORMITY IN THE FACE OF
DIFFERENCE.  MADDEN V. KENTUCKY, ANTE, P. 83. 

THE JUDGMENT BELOW IS AFFIRMED. 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE INSTANT CASE IS
INDISTINGUISHABLE IN PRINCIPLE FROM BINNEY V. LONG, 299 U.S. 280, AND
THAT, ACCORDINGLY, THE JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE MCREYNOLDS DID NOT PARTICIPATE IN THE DECISION OF THIS
CASE. 
..END :





PUERTO RICO V. RUBERT CO., 309 U.S. 543 


NO. 582.  ARGUED MARCH 7, 8, 1940.  - DECIDED MARCH 25, 1940.  - 106
F.2D 754, REVERSED. 


1.  THE PROVISION OF SEC. 39 OF THE ORGANIC ACT FOR PUERTO RICO, 48
U.S.C. SEC. 752, THAT "EVERY CORPORATION HEREAFTER AUTHORIZED TO ENGAGE
IN AGRICULTURE SHALL BY ITS CHARTER BE RESTRICTED TO THE OWNERSHIP AND
CONTROL OF NOT TO EXCEED FIVE HUNDRED ACRES OF LAND" IS ENFORCIBLE BY
PROCEEDINGS OF QUO WARRANTO AUTHORIZED BY THE LOCAL LEGISLATURE UNDER
SEC. 37 OF THE ORGANIC ACT, 48 U.S.C. SEC. 821, WHICH PROVIDES THAT
"THE LEGISLATIVE AUTHORITY SHALL EXTEND TO ALL MATTERS OF A LEGISLATIVE
CHARACTER NOT LOCALLY INAPPLICABLE  ...  "  P. 548. 

2.  SECTION 39 OF THE ORGANIC ACT OF PUERTO RICO IS NOT ONE OF "THE
LAWS OF THE UNITED STATES" WITHIN THE MEANING OF THE PROVISION OF JUD. 
CODE SEC. 256 WHICH VESTS IN "THE COURTS OF THE UNITED STATES  ...
EXCLUSIVE OF THE COURTS OF THE SEVERAL STATES" JURISDICTION OF ALL
SUITS "FOR PENALTIES AND FORFEITURES INCURRED UNDER THE LAWS OF THE
UNITED STATES."  P. 550. 

PUERTO RICO V. RUBERT HERMANOS, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, POST, P. 642, TO REVIEW THE REVERSAL OF A JUDGMENT OF THE
SUPREME COURT OF PUERTO RICO SUSTAINING A PROCEEDING IN QUO WARRANTO. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE IN CONTROVERSY IS A MATTER OF GREAT IMPORTANCE TO
PUERTO RICO AND INVOLVES THE POWER OF ITS LEGISLATURE TO ENFORCE
CONGRESSIONAL POLICIES AFFECTING THE ISLAND.  WE THEREFORE BROUGHT THE
CASE HERE ON A WRIT OF CERTIORARI, TO REVIEW A DECISION OF THE CIRCUIT
COURT OF APPEALS FOR THE FIRST CIRCUIT.  106 F.2D 754.  THAT COURT HAD
REVERSED THE JUDGMENT OF THE SUPREME COURT OF PUERTO RICO, 53 P.R.
779(SPANISH EDITION) SUSTAINING A PROCEEDING IN QUO WARRANTO BROUGHT
AGAINST RESPONDENT. 

THE PROCEEDING WAS INITIATED IN THE SUPREME COURT OF PUERTO RICO
UNDER JURISDICTION CONFERRED UPON IT BY THE LOCAL LEGISLATURE.  THE
SUBSTANCE OF TWO MEASURES, ENACTED IN 1935, AND SET OUT BELOW,
AUTHORIZED THE GOVERNMENT OF PUERTO RICO TO BRING A QUO WARRANTO
PROCEEDING IN ITS SUPREME COURT AGAINST ANY CORPORATION VIOLATING
FEDERAL LAW.  FN1  ACCORDINGLY, THE ATTORNEY GENERAL OF THE ISLAND
BROUGHT THE PRESENT SUIT AGAINST RESPONDENT, A CORPORATION ORGANIZED IN
1927 UNDER PUERTO RICO'S CORPORATION LAW.  THE GRAVAMEN OF THE SUIT WAS
ALLEGED DEFIANCE BY RESPONDENT OF THE CONGRESSIONAL RESTRICTION IMPOSED
UPON "EVERY CORPORATION AUTHORIZED TO ENGAGE IN AGRICULTURE ...  TO THE
OWNERSHIP AND CONTROL OF NOT TO EXCEED FIVE HUNDRED ACRES OF LAND." 
THIS RESTRICTION, ACCORDING TO THE COMPLAINT, EMBODIED "THE PUBLIC
POLICY OF THE PEOPLE OF PUERTO RICO" FIRST DECLARED BY CONGRESS IN ITS
JOINT RESOLUTION OF MAY 1, 1900, 31 STAT. 715, SUPPLEMENTING THE
FORAKER ACT OF APRIL 12, 1900, 31 STAT. 77.  FN2  THIS LIMITATION UPON
THE CORPORATE OWNERSHIP OF LAND WAS CONTINUED WHEN CONGRESS IN 1917
REVISED THE CONSTITUTIONAL FRAMEWORK OF PUERTO RICO'S GOVERNMENT IN
WHAT IS THE EXISTING ORGANIC ACT, SEC. 39 OF THE ACT OF MARCH 2, 1917,
39 STAT. 951, 964(48 U.S.C. SEC. 752). 

THE PRESENT CONTROVERSY DERIVES FROM THE FACT THAT CONGRESS AFFIXED
NO DIRECT CONSEQUENCES TO DISOBEDIENCE OF ITS LAND POLICY FOR PUERTO
RICO.  THE MAIN ISSUE PRESENTED HERE IS WHETHER PUERTO RICO'S
LEGISLATIVE ASSEMBLY HAS POWER TO GRAFT SUCH CONSEQUENCES UPON THE
CONGRESSIONAL PROHIBITION.  THIS WAS THE ISSUE AS THE SUPREME COURT OF
PUERTO RICO CONCEIVED IT, AND WE ARE NOT DISPOSED TO DEAL WITH IT
DIFFERENTLY.  IT WAS SUGGESTED BY THE DISSENTING JUDGE IN THE COURT OF
APPEALS THAT THE SUPREME COURT'S JUDGMENT MAY BE SUPPORTED BY
CONSTRUING THE 1935 LEGISLATION AS A MEANS OF ENFORCING THE LOCAL LAND
POLICY - IDENTIC, TO BE SURE, WITH THAT DECLARED BY CONGRESS - EMBODIED
IN THE 1911 CORPORATION LAW OF PUERTO RICO.  TO DO SO, HOWEVER, WOULD
TAKE US INTO NICETIES OF PLEADING AND OF LOCAL LAW WHICH WERE NOT
CANVASSED BY THE INSULAR COURT.  SUCH A COURSE WOULD BE PECULIARLY
GRATUITOUS WHEN THE ISSUE WHICH THE LOCAL COURT IN FACT DECIDED IS
EASILY RESOLVED. 

IN THE SETTING OF THE TRADITIONAL RELATION BETWEEN THE BROAD OUTLINES
DESIGNED BY CONGRESS FOR THE GOVERNMENT OF TERRITORIES AND THE POWERS
OF LOCAL LEGISLATURES TO MOVE FREELY WITHIN THOSE OUTLINES, THE
DIFFICULTIES CONJURED UP AGAINST THE VIEW TAKEN BY THE PUERTO RICAN
COURT RAPIDLY EVAPORATE.  THE OBJECTIONS URGED AGAINST IT ILLUSTRATE
VIVIDLY THE POWER OF SUBTLE ARGUMENT TO GIVE AN APPEARANCE OF
DIFFICULTY TO WHAT IS RELATIVELY SIMPLE.  THE BREADTH OF LOCAL AUTONOMY
REPOSED BY CONGRESS IN THE LEGISLATIVE ASSEMBLY WAS ELUCIDATED TOO
RECENTLY AND TOO THOROUGHLY IN PUERTO RICO V. SHELL CO., 302 U.S. 253,
TO CALL FOR REPETITION HERE.  SUFFICE IT TO SAY THAT THE OPINION IN
THAT CASE UNDERLINED THE FULLNESS OF SCOPE WHICH CONGRESS GAVE TO
PUERTO RICO WHEN IT PROVIDED BY SEC. 37 OF THE ORGANIC ACT OF 1917 THAT
"THE LEGISLATIVE AUTHORITY SHALL EXTEND TO ALL MATTERS OF A LEGISLATIVE
CHARACTER NOT LOCALLY INAPPLICABLE  ...  " 39 STAT. 964, 48 U.S.C. SEC.
821.  DRAWING ON THE PRACTICE OF CONGRESS IN ITS TREATMENT OF
TERRITORIES THROUGHOUT OUR HISTORY, AND ASSIMILATING THAT PRACTICE INTO
THE PUERTO RICAN SITUATION, THE COURT CONCLUDED THAT "THE GRANT OF
LEGISLATIVE POWER IN RESPECT OF LOCAL MATTERS, CONTAINED IN SEC. 32 OF
THE FORAKER ACT AND CONTINUED IN FORCE BY SEC. 37 OF THE ORGANIC ACT OF
1917, IS AS BROAD AND COMPREHENSIVE AS LANGUAGE COULD MAKE IT."  302
U.S. AT 261. 

SURELY NOTHING MORE IMMEDIATELY TOUCHES THE LOCAL CONCERN OF PUERTO
RICO THAN LEGISLATION GIVING EFFECT TO THE CONGRESSIONAL RESTRICTION ON
CORPORATE LAND HOLDINGS.  THIS POLICY WAS BORN OF THE SPECIAL NEEDS OF
A CONGESTED POPULATION LARGELY DEPENDENT UPON THE LAND FOR ITS
LIVELIHOOD.  FN3 IT WAS ENUNCIATED AS SOON AS CONGRESS BECAME
RESPONSIBLE FOR THE WELFARE OF THE ISLAND'S PEOPLE, WAS RETAINED
AGAINST VIGOROUS ATTEMPTS TO MODIFY IT,  FN4  AND WAS REAFFIRMED WHEN
CONGRESS ENLARGED PUERTO RICO'S POWERS OF SELF-GOVERNMENT.  SURELY
CONGRESS MEANT ITS ACTION TO HAVE SIGNIFICANCE BEYOND MERE EMPTY
WORDS.  TO TREAT THE ABSENCE OF A SPECIFIC REMEDY FOR VIOLATION OF THE
RESTRICTION AS AN IMPLIED BAR AGAINST LOCAL ENFORCEMENT MEASURES IS TO
IMPUTE TO CONGRESS A DOG-IN-THE-MANGER ATTITUDE BORDERING ON
DISINGENUOUSNESS.  WE REFUSE TO BELIEVE THAT CONGRESS WAS BENT ON THE
ELABORATE FUTILITY OF A BRUTUM FULMEN.  WHAT WAS SAID IN ANOTHER
CONTEXT, TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548, 569, IS
APPOSITE HERE:  "THE DEFINITE PROHIBITION WHICH CONGRESS INSERTED IN
THE ACT CANNOT THEREFORE BE OVERRIDDEN IN THE VIEW THAT CONGRESS
INTENDED IT TO BE IGNORED.  AS THE PROHIBITION WAS APPROPRIATE TO THE
AIM OF CONGRESS, AND IS CAPABLE OF ENFORCEMENT, THE CONCLUSION MUST BE
THAT ENFORCEMENT WAS CONTEMPLATED."  THE SUGGESTION THAT ENFORCEMENT
MIGHT COME ONLY THROUGH QUO WARRANTO PROCEEDINGS BY THE ATTORNEY
GENERAL OF THE UNITED STATES IS EQUALLY RECKLESS. 

A MUCH MORE RATIONAL EXPLANATION, CONSISTENT WITH THE ORGANIC
RELATION BETWEEN CONGRESS AND THE LOCAL GOVERNMENT, IS AT HAND.  AS THE
ULTIMATE LEGISLATIVE GUARDIAN OF THE ISLAND'S WELFARE, CONGRESS
CONFINED THE LEGISLATURE'S DISCRETION WITHIN THE LIMITS OF THE FIVE
HUNDRED-ACRE RESTRICTION.  HOW THIS POLICY WAS TO BE REALIZED WAS FOR
PUERTO RICO TO SAY.  "LOCAL AUTHORITIES MAY ASCERTAIN FACTS AND DECIDE
QUESTIONS UPON WHICH DEPENDS APPROPRIATE EXERTION OF THE POWER MUCH
MORE CONVENIENTLY THAN MAY THE CONGRESS."  PUBLIC SERVICE COMMISSION V.
HAVEMEYER, 296 U.S. 506, 515-16. 

IT IS ADMITTED, AS INDEED IN VIEW OF THE SHELL CASE IT COULD NOT BE
DENIED, THAT THE REMEDY HERE PURSUED WOULD HAVE BEEN AVAILABLE TO THE
LEGISLATIVE ASSEMBLY IF THAT BODY HAD ADOPTED THE CONGRESSIONAL POLICY
IN A SUBSTANTIVE STATUTE OF ITS OWN.  BUT RESPONDENT CONTENDS THAT THE
SAME RESULT CANNOT BE ACHIEVED BY INVESTING THE INSULAR COURTS WITH
JURISDICTION DIRECTLY TO ENFORCE THE CONGRESSIONAL POLICY.  SUCH
USELESS INDIRECTION IS COMPELLED NEITHER BY THE ORGANIC ACT NOR BY ANY
GENERAL CONSIDERATION UNDERLYING THE DISTRIBUTION OF POWER BETWEEN
CONGRESS AND THE INSULAR LEGISLATURE.  SO LONG AS THE LEGISLATIVE
ASSEMBLY ACTS WITHIN THE FRAMEWORK WHICH CONGRESS HAS SET UP IT MERELY
AVAILS ITSELF OF THE POWER CONFERRED IN SEC. 37 OF THE ORGANIC ACT.  IT
HAS DONE SO HERE. 

THERE REMAINS FOR CONSIDERATION AN OBJECTION BASED ON SEC. 256 OF THE
JUDICIAL CODE (28 U.S.C. SEC. 371).  THAT SECTION VESTS IN "THE COURTS
OF THE UNITED STATES  ...  EXCLUSIVE OF THE COURTS OF THE SEVERAL
STATES" JURISDICTION OF ALL SUITS "FOR PENALTIES AND FORFEITURES
INCURRED UNDER THE LAWS OF THE UNITED STATES."  WHETHER A LAW PASSED BY
CONGRESS IS A "LAW OF THE UNITED STATES" DEPENDS ON THE MEANING GIVEN
TO THAT PHRASE BY ITS CONTEXT.  A LAW FOR THE DISTRICT OF COLUMBIA,
THOUGH ENACTED BY CONGRESS, WAS HELD TO BE NOT A "LAW OF THE UNITED
STATES" WITHIN THE MEANING OF SEC. 250 OF THE JUDICIAL CODE.  AMERICAN
SECURITY CO. V. DISTRICT OF COLUMBIA, 224 U.S. 491.  LIKEWISE, WE HOLD
THAT SEC. 39 OF THE ORGANIC ACT IS NOT ONE OF "THE LAWS OF THE UNITED
STATES" WITHIN THE MEANING OF SEC. 256.  SECTION 39 IS PECULIARLY
CONCERNED WITH LOCAL POLICY CALLING FOR LOCAL ENFORCEMENT FROM WHICH
LOCAL COURTS SHOULD NOT BE EXCLUDED BY A STATUTORY PROVISION PLAINLY
DESIGNED FOR THE PROTECTION OF POLICIES HAVING GENERAL APPLICATION
THROUGHOUT THE UNITED STATES. 

OTHER OBJECTIONS URGED AT THE BAR AND IN RESPONDENT'S BRIEF DO NOT
CALL FOR PARTICULAR MENTION.  ON THE ONLY QUESTIONS NOW BEFORE US, WE
THINK THE SUPREME COURT OF PUERTO RICO ACTED WITHIN THE SCOPE OF POWER
VALIDLY CONFERRED UPON IT BY THE LEGISLATIVE ASSEMBLY.  FN5  THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS MUST THEREFORE BE REVERSED. 

FN1  ACT NO. 33 OF JULY 22, 1935, LAWS OF PUERTO RICO, SPECIAL
SESSION, 1935, P. 418, PROVIDING: 

"SECTION 1.  - THERE IS HEREBY CONFERRED UPON THE SUPREME COURT OF
PUERTO RICO EXCLUSIVE ORIGINAL JURISDICTION TO TAKE COGNIZANCE OF ALL
QUO WARRANTO PROCEEDINGS THAT THE GOVERNMENT OF PUERTO RICO MAY
HEREAFTER INSTITUTE FOR VIOLATIONS OF THE PROVISIONS OF SECTION 752,
TITLE 48, UNITED STATES CODE, AND FOR THAT PURPOSE IT IS PROVIDED THAT
THE VIOLATION OF SAID PROVISIONS SHALL CONSTITUTE SUFFICIENT CAUSE TO
INSTITUTE A PROCEEDING OF THE NATURE OF QUO WARRANTO. 

"SECTION 2.  - ALL LAWS OR PARTS OF LAWS IN CONFLICT HEREWITH ARE
HEREBY REPEALED. 

"SECTION 3.  - THIS ACT, BEING OF AN URGENT CHARACTER, SHALL TAKE
EFFECT IMMEDIATELY AFTER ITS APPROVAL." 

ACT NO. 47 OF AUGUST 7, 1935, LAWS OF PUERTO RICO, SPECIAL SESSION,
1935, PP. 530-32, PROVIDING: 

"SECTION 1.  - SECTION 2 OF AN ACT ENTITLED 'AN ACT ESTABLISHING QUO
WARRANTO PROCEEDINGS,' APPROVED MARCH 1, 1902, IS HEREBY AMENDED AS
FOLLOWS: 

"'SECTION 2.  - IN CASE ANY PERSON SHOULD USURP, OR UNLAWFULLY HOLD
OR EXECUTE ANY PUBLIC OFFICE OR SHOULD UNLAWFULLY MAKE USE OF ANY
FRANCHISE, OR LIKEWISE SHALL HOLD ANY OFFICE IN ANY CORPORATION CREATED
BY AND EXISTING UNDER THE LAWS OF PUERTO RICO, OR ANY PUBLIC OFFICER
SHALL HAVE DONE OR SUFFERED ANY ACT WHICH, BY THE PROVISIONS OF THE
LAW, INVOLVES A FORFEITURE OF HIS OFFICE, OR ANY ASSOCIATION OR NUMBER
OF PERSONS SHALL ACT WITHIN PUERTO RICO AS A CORPORATION, WITHOUT BEING
LEGALLY INCORPORATED, OR ANY CORPORATION DOES OR OMITS ANY ACT WHICH
AMOUNTS TO A SURRENDER OR FORFEITURE OF ITS RIGHTS AND PRIVILEGES AS A
CORPORATION, OR EXERCISES RIGHTS NOT CONFERRED BY LAW, THE ATTORNEY
GENERAL, OR ANY PROSECUTING ATTORNEY OF THE RESPECTIVE DISTRICT COURT,
EITHER ON HIS OWN INITIATIVE OR AT THE INSTANCE OF ANOTHER PERSON, MAY
FILE BEFORE ANY DISTRICT COURT OF PUERTO RICO A PETITION FOR AN
INFORMATION IN THE NATURE OF QUO WARRANTO IN THE NAME OF THE PEOPLE OF
PUERTO RICO; OR WHENEVER ANY CORPORATION, BY ITSELF OR THROUGH ANY
OTHER SUBSIDIARY OR AFFILIATED ENTITY OR AGENT, EXERCISES RIGHTS,
PERFORMS ACTS, OR MAKES CONTRACTS IN VIOLATION OF THE EXPRESS
PROVISIONS OF THE ORGANIC ACT OF PUERTO RICO OR OF ANY OF ITS STATUTES,
THE ATTORNEY GENERAL OR ANY DISTRICT ATTORNEY, EITHER ON HIS OWN
INITIATIVE OR AT THE INSTANCE OF ANOTHER PERSON, MAY FILE BEFORE THE
SUPREME COURT OF PUERTO RICO A PETITION FOR AN INFORMATION IN THE
NATURE OF QUO WARRANTO IN THE NAME OF THE PEOPLE OF PUERTO RICO; AND IF
FROM THE ALLEGATIONS SUCH COURT SHALL BE SATISFIED THAT THERE IS
PROBABLE GROUND FOR THE PROCEEDING, THE COURT MAY GRANT THE PETITION
AND ORDER THE INFORMATION ACCORDINGLY.  WHERE IT APPEARS TO THE COURT
THAT THE SEVERAL RIGHTS OF DIVERS PARTIES TO THE SAME OFFICE OR
FRANCHISE MAY PROPERLY BE DETERMINED ON THE SAME PROCEEDING, THE COURT
MAY GIVE LEAVE TO JOIN ALL SUCH PERSONS IN THE SAME PETITION, IN ORDER
TO TRY THEIR RESPECTIVE RIGHTS TO SUCH OFFICE OR FRANCHISE.' 

"'WHEN ANY CORPORATION BY ITSELF OR THROUGH ANY OTHER SUBSIDIARY OR
AFFILIATED ENTITY OR AGENT IS UNLAWFULLY HOLDING, UNDER ANY TITLE, REAL
ESTATE IN PUERTO RICO, THE PEOPLE OF PUERTO RICO MAY, AT ITS OPTION,
THROUGH THE SAME PROCEEDINGS, INSTITUTE IN ITS BEHALF THE CONFISCATION
OF SUCH PROPERTY, OR THE ALIENATION THEREOF AT PUBLIC AUCTION, WITHIN A
TERM OF NOT MORE THAN SIX MONTHS COUNTING FROM THE DATE ON WHICH FINAL
SENTENCE IS RENDERED. 

"'IN EVERY CASE, ALIENATION OR CONFISCATION SHALL BE THROUGH THE
CORRESPONDING INDEMNITY AS ESTABLISHED IN THE LAW OF EMINENT DOMAIN.'" 

FN2  SEC. 3 OF THE JOINT RESOLUTION PROVIDES: 

"NO CORPORATION SHALL BE AUTHORIZED TO CONDUCT THE BUSINESS OF BUYING
AND SELLING REAL ESTATE OR BE PERMITTED TO HOLD OR OWN REAL ESTATE
EXCEPT SUCH AS MAY BE REASONABLY NECESSARY TO ENABLE IT TO CARRY OUT
THE PURPOSES FOR WHICH IT WAS CREATED, AND EVERY CORPORATION HEREAFTER
AUTHORIZED TO ENGAGE IN AGRICULTURE SHALL BY ITS CHARTER BE RESTRICTED
TO THE OWNERSHIP AND CONTROL OF NOT TO EXCEED FIVE HUNDRED ACRES OF
LAND; AND THIS PROVISION SHALL BE HELD TO PREVENT ANY MEMBER OF A
CORPORATION ENGAGED IN AGRICULTURE FROM BEING IN ANY WISE INTERESTED IN
ANY OTHER CORPORATION ENGAGED IN AGRICULTURE.  CORPORATIONS, HOWEVER,
MAY LOAN FUNDS UPON REAL ESTATE SECURITY, AND PURCHASE REAL ESTATE WHEN
NECESSARY FOR THE COLLECTION OF LOANS, BUT THEY SHALL DISPOSE OF REAL
ESTATE SO OBTAINED WITHIN FIVE YEARS AFTER RECEIVING THE TITLE. 
CORPORATIONS NOT ORGANIZED IN PORTO RICO, AND DOING BUSINESS THEREIN,
SHALL BE BOUND BY THE PROVISIONS OF THIS SECTION SO FAR AS THEY ARE
APPLICABLE."    WHETHER THE RESTRICTION OPERATES DIRECTLY AS A
LIMITATION UPON THE POWERS OF THE CORPORATION OR MERELY AS A LIMITATION
UPON THE LEGISLATIVE ASSEMBLY'S POWER TO CONFER CORPORATE PRIVILEGES,
ITS EFFECT IS TO RENDER CORPORATE LAND OWNERSHIP IN EXCESS OF THE
PRESCRIBED ACREAGE UNLAWFUL.  SEE THE OPINION OF ATTORNEY GENERAL
WICKERSHAM, 28 OP. A.G. 258, 260-261. 

FN3  SEE GAYER, HOMAN AND JAMES, THE SUGAR ECONOMY OF PUERTO RICO,
PP. 97-132; DIFFIE, PORTO RICO:  A BROKEN PLEDGE, PP. 45-88; FLEAGLE,
SOCIAL PROBLEMS IN PORTO RICO, PP. 19-27; HANSON, PLANNING PROBLEMS AND
ACTIVITIES IN PUERTO RICO (REPORT TO NATIONAL RESOURCES COMMITTEE,
1936).  COMPARE CLARK, ETC., PORTO RICO AND ITS PROBLEMS, PP. 495-500,
628 ET SEQ. 

FN4  SEE H.R. 23,000, 61ST CONG.; H. REP. NO. 750, 61ST CONG., 2D
SESS.; S. REP. NO. 920, 61ST CONG., 3D SESS.; 45 CONG. REC. 6861 ET
SEQ., 7220 ET SEQ., 7584 ET SEQ., 7604 ET SEQ., 8177 ET SEQ.; 46 CONG.
REC. 2644. 

FN5  THE IMPOSITION OF A FINE BY THE SUPREME COURT OF PUERTO RICO, AS
A PART OF THE POWER TO GRANT RELIEF ANCILLARY TO THE MAIN PROCEEDING
FOR FORFEITURE OF THE CORPORATE PRIVILEGES, WAS WITHIN THE SCOPE OF
AUTHORITY VALIDLY CONFERRED UPON IT BY THE 1935 LEGISLATION.  COMPARE
ILLINOIS V. ILLINOIS CENTRAL R. CO., 33 F. 721.  SEE HIGH,
EXTRAORDINARY LEGAL REMEDIES, SECS. 745-762. 

MR. JUSTICE MCREYNOLDS DID NOT PARTICIPATE IN THE DECISION OF THIS
CASE. 
..END :


















MINNESOTA V. NATIONAL TEA CO., 309 U.S. 551 


NO. 500.  ARGUED MARCH 7, 1940.  - DECIDED MARCH 25, 1940.  - 205 MINN.
443 - 286 N.W. 360, VACATED. 


THE GROUNDS OF A STATE COURT DECISION, HOLDING A GRADUATED TAX ON
GROSS INCOME FROM CHAIN STORES UNCONSTITUTIONAL, BEING OBSCURE AND THE
JURISDICTION OF THIS COURT TO REVIEW BEING THEREFORE IN DOUBT, THE
JUDGMENT IS VACATED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS SO
THAT THE STATE AND FEDERAL QUESTIONS MAY BE CLEARLY SEPARATED.  P.
555. 

MINNESOTA V. NATIONAL TEA CO. ET AL. 

CERTIORARI TO THE SUPREME COURT OF MINNESOTA. 

CERTIORARI, 308 U.S. 547, TO REVIEW THE AFFIRMANCE OF JUDGMENTS
GRANTING REFUNDS OF TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1933 MINNESOTA ENACTED A CHAIN STORE TAX (L. 1933, C. 213) ONE
ITEM OF WHICH WAS A TAX ON GROSS SALES.  SEC. 2(B).  THE GROSS SALES
TAX WAS GRADUATED:  ONE-TWENTIETH OF ONE PER CENT WAS APPLIED ON THAT
PORTION OF GROSS SALES NOT IN EXCESS OF $100,000; AND LARGER
PERCENTAGES WERE APPLIED AS THE VOLUME OF GROSS SALES INCREASED, UNTIL
ONE PER CENT WAS EXACTED ON THAT PORTION OF GROSS SALES IN EXCESS OF
$1,000,000.  RESPONDENTS (CHAIN STORES CONDUCTING RETAIL BUSINESSES IN
MINNESOTA) PAID UNDER PROTEST THE GROSS SALES TAX DEMANDED BY THE
MINNESOTA TAX COMMISSION FOR THE YEARS 1933 AND 1934 AND THEREAFTER
SUED IN THE STATE COURT FOR REFUNDS.  FN1  JUDGMENTS GRANTING REFUNDS
WERE AFFIRMED BY THE SUPREME COURT OF MINNESOTA, 205 MINN. 443; 286
N.W. 360.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE
CONSTITUTIONAL ISSUES INVOLVED IN STEWART DRY GOODS CO. V. LEWIS, 294
U.S. 550 AND VALENTINE V. GREAT ATLANTIC & PACIFIC TEA CO., 299 U.S.
32, WHICH CASES, IT WAS ASSERTED, CONTROLLED THE DECISION BELOW. 

AT THE THRESHOLD OF AN INQUIRY INTO THE APPLICABILITY OF THE STEWART
AND VALENTINE CASES TO THESE FACTS, WE ARE MET WITH A QUESTION WHICH IS
DECISIVE OF THE PRESENT PETITION.  THAT IS THE QUESTION OF
JURISDICTION. 

THE SUPREME COURT OF MINNESOTA DISCUSSED NOT ONLY THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION BUT ALSO ART. 9, SEC. 1 OF THE MINNESOTA CONSTITUTION
WHICH PROVIDES:  "TAXES SHALL BE UNIFORM UPON THE SAME CLASS OF
SUBJECTS  ...  "  IT SAID THAT "THESE PROVISIONS OF THE FEDERAL AND
STATE CONSTITUTIONS IMPOSE IDENTICAL RESTRICTIONS UPON THE LEGISLATIVE
POWER OF THE STATE IN RESPECT TO CLASSIFICATION FOR PURPOSES OF
TAXATION."  FN2  IT STATED THAT THE "QUESTION IS  ...  WHETHER THE
IMPOSITION OF A GRADUATED GROSS SALES TAX UPON ALL THOSE ENGAGED IN
CONDUCTING CHAIN STORES IS DISCRIMINATORY AS BETWEEN SUCH OWNERS, THUS
VIOLATING THE CONSTITUTIONAL REQUIREMENT OF UNIFORMITY."  IT QUOTED THE
CONCLUSION OF THE LOWER MINNESOTA COURT THAT THE STATUTE VIOLATED BOTH
THE FEDERAL AND THE STATE CONSTITUTION.  IT THEN ADVERTED BRIEFLY TO
THREE OF ITS FORMER DECISIONS WHICH HAD INTERPRETED ART. 9, SEC. 1 OF
THE MINNESOTA CONSTITUTION AND QUOTED FROM ONE OF THEM.  FN3  IT MERELY
ADDED:  "SO MUCH FOR OUR OWN CASES"; AND PROCEEDED AT ONCE TO A
DISCUSSION OF CASES BASED SOLELY ON THE FOURTEENTH AMENDMENT OF THE
FEDERAL CONSTITUTION.  WHILE ITS DISCUSSION OF ART. 9, SEC. 1 OF THE
MINNESOTA CONSTITUTION WAS IN GENERAL TERMS, ITS ANALYSIS OF THE
FOURTEENTH AMENDMENT WAS SPECIFICALLY RELATED TO CHAIN STORE TAXATION. 
IT DISTINGUISHED DECISIONS OF THIS COURT WHICH HELD THAT THE NUMBER OF
STORES IN A GIVEN CHAIN AFFORDS AN APPROPRIATE BASIS FOR CLASSIFICATION
FOR IMPOSITION OF PROGRESSIVELY HIGHER TAXES.  FN4 IT THEN STATED THAT
THE "PRECISE QUESTION HERE PRESENTED" HAD BEEN DIRECTLY PASSED UPON
ADVERSELY TO THE STATE'S CONTENTION IN FIVE CASES:  STEWART DRY GOODS
CO. V. LEWIS, SUPRA; VALENTINE V. GREAT ATLANTIC & PACIFIC TEA CO.,
SUPRA; ED. SCHUSTER & CO. V. HENRY, 218 WIS. 506; 261 N.W. 20; LANE
DRUG STORES, INC. V. LEE, 11 F.SUPP.  672; GREAT ATLANTIC & PACIFIC TEA
CO. V. HARVEY, 107 VT. 215; 177 A. 423.  IT ADDED THAT THE TAX HERE
INVOLVED WAS ON ALL FOURS WITH THAT STRUCK DOWN BY THIS COURT IN
STEWART DRY GOODS CO. V. LEWIS, SUPRA.  IT QUOTED WITH APPROVAL FROM
THE OPINION IN ED. SCHUSTER & CO. V. HENRY, SUPRA.  AND IT CONCLUDED
WITH THE FOLLOWING STATEMENT: 

"WE THINK THE FIVE CASES TO WHICH WE HAVE REFERRED HAVE SO DEFINITELY
AND FINALLY DISPOSED OF THE LEGAL PROBLEM PRESENTED AS TO MAKE IT
NEEDLESS FOR US TO ANALYZE OR DISCUSS THE GREAT NUMBER OF OTHER TAX
CASES WHERE THE SAME CONSTITUTIONAL QUESTION WAS INVOLVED.  THESE BEING
THE ONLY CASES TO WHICH OUR ATTENTION HAS BEEN CALLED DIRECTLY DECIDING
THE QUESTION PRESENTED WE ARE OF OPINION THAT WE SHOULD FOLLOW THEM AND
THAT IT IS OUR DUTY SO TO DO."  FN5 

RESPONDENTS CONTEND THAT THE COURT HELD THE STATUTE INVALID FOR
VIOLATION NOT ONLY OF THE FEDERAL CONSTITUTION BUT ALSO OF THE STATE
CONSTITUTION.  HENCE THEY SEEK TO INVOKE THE FAMILIAR RULE THAT WHERE A
JUDGMENT OF A STATE COURT RESTS ON TWO GROUNDS, ONE INVOLVING A FEDERAL
QUESTION AND THE OTHER NOT, THIS COURT WILL NOT TAKE JURISDICTION.  FOX
FILM CORP. V. MULLER, 296 U.S. 207; LYNCH V. NEW YORK EX REL. PIERSON,
293 U.S. 52; NEW YORK CITY V. CENTRAL SAVINGS BANK, 306 U.S. 661.  IN
SUPPORT OF THIS POSITION THEY POINT TO THE COURT'S DISCUSSION OF THE
MINNESOTA CONSTITUTION AND TO THE FACT THAT THE SYLLABUS STATES THAT
SUCH A TAX IS VIOLATIVE OF BOTH THE FEDERAL AND STATE CONSTITUTIONS. 
FN6  BUT AS TO THE LATTER WE ARE NOT REFERRED TO ANY MINNESOTA
AUTHORITY WHICH, AS IN SOME STATES,  FN7  MAKES THE SYLLABI THE LAW OF
THE CASE.  AND AS TO THE FORMER THE OPINION IS QUITE INCONCLUSIVE.  FOR
THE OPINION AS A WHOLE LEAVES THE IMPRESSION THAT THE COURT PROBABLY
FELT CONSTRAINED TO RULE AS IT DID BECAUSE OF THE FIVE DICISIONS WHICH
IT CITED AND WHICH HELD SUCH GROSS SALES TAXES UNCONSTITUTIONAL BY
REASON OF THE FOURTEENTH AMENDMENT.  THAT IS AT LEAST THE MEANING, IF
THE WORDS USED ARE TAKEN LITERALLY.  FOR IF, AS STATED BY THE COURT,
THE "PRECISE QUESTION HERE PRESENTED" WAS RULED BY THOSE FIVE CASES,
THAT QUESTION WAS A FEDERAL ONE.  AND IN THAT CONNECTION IT IS PERHAPS
SIGNIFICANT THAT THE COURT STATED NOT ONLY THAT IT "SHOULD FOLLOW"
THOSE DECISIONS BUT THAT "IT IS OUR DUTY SO TO DO." 

ENOUGH HAS BEEN SAID TO DEMONSTRATE THAT THERE IS CONSIDERABLE
UNCERTAINTY AS TO THE PRECISE GROUNDS FOR THE DECISION.  THAT IS
SUFFICIENT REASON FOR US TO DECLINE AT THIS TIME TO REVIEW THE FEDERAL
QUESTION ASSERTED TO BE PRESENT, HONEYMAN V. HANAN, 300 U.S. 14,
CONSISTENTLY WITH THE POLICY OF NOT PASSING UPON QUESTIONS OF A
CONSTITUTIONAL NATURE WHICH ARE NOT CLEARLY NECESSARY TO A DECISION OF
THE CASE. 

BUT THAT DOES NOT MEAN THAT WE SHOULD DISMISS THE PETITION.  THIS
COURT HAS FREQUENTLY HELD THAT IN THE EXERCISE OF ITS APPELLATE
JURISDICTION IT HAS THE POWER NOT ONLY TO CORRECT ERRORS OF LAW IN THE
JUDGMENT UNDER REVIEW BUT ALSO TO MAKE SUCH DISPOSITION OF THE CASE AS
JUSTICE REQUIRES.  STATE TAX COMMISSION V. VAN COTT, 306 U.S. 511;
PATTERSON V. ALABAMA, 294 U.S. 600.  THAT PRINCIPLE HAS BEEN APPLIED TO
CASES COMING FROM STATE COURTS WHERE SUPERVENING CHANGES HAD OCCURRED
SINCE ENTRY OF THE JUDGMENT, WHERE THE RECORD FAILED ADEQUATELY TO
STATE THE FACTS UNDERLYING A DECISION OF THE FEDERAL QUESTION, AND
WHERE THE GROUNDS OF THE STATE DECISION WERE OBSCURE.  HONEYMAN V.
HANAN, SUPRA, AND CASES THERE CITED.  THAT PRINCIPLE WAS ALSO APPLIED
IN STATE TAX COMMISSION V. VAN COTT, SUPRA, WHERE IT WAS SAID P. 514: 

"  ...  IF THE STATE COURT DID IN FACT INTEND ALTERNATIVELY TO BASE
ITS DECISION UPON THE STATE STATUTE AND UPON AN IMMUNITY IT THOUGHT
GRANTED BY THE CONSTITUTION AS INTERPRETED BY THIS COURT, THESE TWO
GROUNDS ARE SO INTERWOVEN THAT WE ARE UNABLE TO CONCLUDE THAT THE
JUDGMENT RESTS UPON AN INDEPENDENT INTERPRETATION OF THE STATE LAW." 
THE PROCEDURE IN THOSE CASES WAS TO VACATE THE JUDGMENT AND TO REMAND
THE CAUSE FOR FURTHER PROCEEDINGS, SO THAT THE FEDERAL QUESTION MIGHT
BE DISSECTED OUT OR THE STATE AND FEDERAL QUESTIONS CLEARLY SEPARATED. 

IN THIS TYPE OF CASE WE DEEM IT ESSENTIAL THAT THIS PROCEDURE BE
FOLLOWED.  IT IS POSSIBLE THAT THE STATE COURT EMPLOYED THE DECISIONS
UNDER THE FEDERAL CONSTITUTION MERELY AS PERSUASIVE AUTHORITIES FOR ITS
INDEPENDENT INTERPRETATION OF THE STATE CONSTITUTION.  IF THAT WERE
TRUE, WE WOULD HAVE NO JURISDICTION TO REVIEW.  STATE TAX COMMISSION V.
VAN COTT, SUPRA.  ON THE OTHER HAND WE CANNOT BE CONTENT WITH A
DISMISSAL OF THE PETITION WHERE THERE IS STRONG INDICATION, AS HERE,
THAT THE FEDERAL CONSTITUTION AS JUDICIALLY CONSTRUED CONTROLLED THE
DECISION BELOW. 

IF A STATE COURT MERELY SAID THAT THE FOURTEENTH AMENDMENT, AS
CONSTRUED BY THIS COURT, IS THE "SUPREME LAW OF THE LAND" TO WHICH
OBEDIENCE MUST BE GIVEN, OUR JURISDICTION WOULD SEEM TO BE
INESCAPABLE.  AND THAT WOULD FOLLOW THOUGH THE STATE COURT MIGHT HAVE
GIVEN, IF IT HAD CHOSEN, A DIFFERENT CONSTRUCTION TO AN IDENTICAL
PROVISION IN THE STATE CONSTITUTION.  BUT THE MINNESOTA SUPREME COURT
DID NOT TAKE SUCH AN UNEQUIVOCAL POSITION.  ON THE OTHER HAND, IT DID
NOT DECLARE ITS INDEPENDENCE OF THE DECISIONS OF THIS COURT, WHEN THE
STATE CONSTITUTIONAL PROVISION AVOWEDLY HAD IDENTITY OF SCOPE WITH THE
RELEVANT CLAUSE OF THE FOURTEENTH AMENDMENT.  IN THE LATTER RESPECT
THIS CASE DIFFERS FROM NEW YORK CITY V. CENTRAL SAVINGS BANK, SUPRA.
THE CASES IN WHICH THE NEW YORK COURT OF APPEALS PROFESSES TO GO ON
BOTH THE STATE AND FEDERAL DUE PROCESS CLAUSES CLEARLY REST UPON AN
ADEQUATE NONFEDERAL GROUND.  FOR THAT COURT HAS RULED THAT ITS OWN
CONCEPTION OF DUE PROCESS GOVERNS, THOUGH THE SAME PHRASE IN THE
FEDERAL CONSTITUTION MAY HAVE BEEN GIVEN DIFFERENT SCOPE BY DECISIONS
OF THIS COURT.  SEE IVES V. SOUTH BUFFALO RY. CO., 201 N.Y. 271, 317;
94 N.E. 431.  THE INSTANT CASE THEREFORE PRESENTS AN INTERMEDIATE
SITUATION TO WHICH AN APPLICATION OF THE PROCEDURE FOLLOWED IN STATE
TAX COMMISSION V. VAN COTT, SUPRA, IS PECULIARLY APPROPRIATE. 

IT IS IMPORTANT THAT THIS COURT NOT INDULGE IN NEEDLESS DISSERTATIONS
ON CONSTITUTIONAL LAW.  IT IS FUNDAMENTAL THAT STATE COURTS BE LEFT
FREE AND UNFETTERED BY US IN INTERPRETING THEIR STATE CONSTITUTIONS. 
BUT IT IS EQUALLY IMPORTANT THAT AMBIGUOUS OR OBSCURE ADJUDICATIONS BY
STATE COURTS DO NOT STAND AS BARRIERS TO A DETERMINATION BY THIS COURT
OF THE VALIDITY UNDER THE FEDERAL CONSTITUTION OF STATE ACTION. 
INTELLIGENT EXERCISE OF OUR APPELLATE POWERS COMPELS US TO ASK FOR THE
ELIMINATION OF THE OBSCURITIES AND AMBIGUITIES FROM THE OPINIONS IN
SUCH CASES.  ONLY THEN CAN WE ASCERTAIN WHETHER OR NOT OUR JURISDICTION
TO REVIEW SHOULD BE INVOKED.  ONLY BY THAT PROCEDURE CAN THE
RESPONSIBILITY FOR STRIKING DOWN OR UPHOLDING STATE LEGISLATION BE
FAIRLY PLACED.  FOR NO OTHER COURSE ASSURES THAT IMPORTANT FEDERAL
ISSUES, SUCH AS HAVE BEEN ARGUED HERE, WILL REACH THIS COURT FOR
ADJUDICATION; THAT STATE COURTS WILL NOT BE THE FINAL ARBITERS OF
IMPORTANT ISSUES UNDER THE FEDERAL CONSTITUTION; AND THAT WE WILL NOT
ENCROACH ON THE CONSTITUTIONAL JURISDICTION OF THE STATES.  THIS IS NOT
A MERE TECHNICAL RULE NOR A RULE FOR OUR CONVENIENCE.  IT TOUCHES THE
DIVISION OF AUTHORITY BETWEEN STATE COURTS AND THIS COURT AND IS OF
EQUAL IMPORTANCE TO EACH.  ONLY BY SUCH EXPLICITNESS CAN THE HIGHEST
COURTS OF THE STATES AND THIS COURT KEEP WITHIN THE BOUNDS OF THEIR
RESPECTIVE JURISDICTIONS. 

FOR THESE REASONS WE VACATE THE JUDGMENT OF THE SUPREME COURT OF
MINNESOTA AND REMAND THE CAUSE TO THAT COURT FOR FURTHER PROCEEDINGS. 
JUDGMENT VACATED. 

FN1  EXTRA SESS. L. 1933-1934, C. 16, SEC. 1.  RESPONDENTS ALSO PAID
UNDER PROTEST THAT PORTION OF THE CHAIN STORE TAX WHICH WAS BASED UPON
THE NUMBER OF STORES WITHIN THE STATE.  L. 1933, C. 213, SEC. 2(A). 
THAT ITEM OF THE COMPOSITE TAX WAS UPHELD BY THE LOWER COURT IN
MINNESOTA FROM WHICH NO APPEAL WAS TAKEN. 

THE GROSS SALES FEATURE OF THE 1933 CHAIN STORE TAX WAS ELIMINATED IN
1937.  EXTRA SESS. L. 1937, C. 93. 

FN2  205 MINN., P. 447.  THE COURT HERE CITED REED V. BJORNSON, 191
MINN. 254; 253 N.W. 102. 

FN3  THIS REFERENCE TO MINNESOTA CONSTITUTIONAL LAW WAS LIMITED TO
THE FOLLOWING: 

"OUR CASES HOLD (AND THAT IS THE GENERAL RULE) THAT THE LEGISLATURE
'HAS A WIDE DISCRETION IN CLASSIFYING PROPERTY FOR THE PURPOSES OF
TAXATION, BUT THE CLASSIFICATION MUST BE BASED ON DIFFERENCES WHICH
FURNISH A REASONABLE GROUND FOR MAKING A DISTINCTION BETWEEN THE
SEVERAL CLASSES.  THE DIFFERENCES MUST NOT BE SO WANTING IN SUBSTANCE
THAT THE CLASSIFICATION RESULTS IN PERMITTING ONE TO ESCAPE A BURDEN
IMPOSED ON ANOTHER UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND
CONDITIONS.  THE RULE OF UNIFORMITY, ESTABLISHED BY THE CONSTITUTION,
REQUIRES THAT ALL SIMILARLY SITUATED SHALL BE TREATED ALIKE.'  STATE V.
MINNESOTA FARMERS MUT. INS. CO., 145 MINN. 231, 234, 176 N.W. 756, 757;
STATE EX REL. MUDEKING V. PARR, 109 MINN. 147, 152, 123 N.W. 408, 134
A.S.R. 759; IN RE IMPROVEMENT OF THIRD STREET, 185 MINN. 170, 240 N.W.
355." 

FN4  STATE BOARD OF TAX COMMISSIONERS V. JACKSON, 283 U.S. 527; LOUIS
K. LIGGETT CO. V. LEE, 288 U.S. 517; FOX V. STANDARD OIL CO., 294 U.S.
87; GREAT ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S. 412. 

FN5  205 MINN., P. 451. 

FN6  BY STATUTE THE COURT IS REQUIRED TO PREPARE THE SYLLABUS. 
MASON'S MINN. STATS. 1927, SEC. 134. 

FN7  SEE STATE V. HAUSER, 101 OHIO ST. 404, 407; 131 N.E. 66; HART V.
ANDREWS, 103 OHIO ST. 218, 221; 132 N.E. 846; THACKERY V. HELFRICH, 123
OHIO ST. 334, 336; 175 N.E. 449. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. CHIEF JUSTICE HUGHES, DISSENTING:    I THINK THAT SOUND PRINCIPLE
GOVERNING THE EXERCISE OF OUR JURISDICTION REQUIRES THE DISMISSAL OF
THE WRIT.  I SEE NO REASON TO DOUBT THAT THE SUPREME COURT OF MINNESOTA
HELD THAT THE TAX IN QUESTION WAS LAID IN VIOLATION OF THE UNIFORMITY
CLAUSE OF THE STATE CONSTITUTION.  NOT ONLY IS THAT SHOWN, AS IT SEEMS
TO ME, FROM THE COURT'S DISCUSSION OF THAT QUESTION, BUT IT
CONCLUSIVELY APPEARS FROM THE SYLLABUS WHICH DEFINITELY STATES THAT THE
TAX IS "VIOLATIVE OF ART. 9, SEC. 1, OF OUR STATE CONSTITUTION."  205
MINN. 443; 286 N.W. 360.  MINNESOTA REQUIRES THAT IN ALL CASES DECIDED
BY THE SUPREME COURT IT SHALL GIVE ITS DECISION IN WRITING, "TOGETHER
WITH HEADNOTES, BRIEFLY STATING THE POINTS DECIDED."  MASON'S MINN.
STAT., SEC. 134.  IN OBEDIENCE TO THE STATUTE, THE COURT HAS THUS GIVEN
EXPLICITLY IN ITS SYLLABUS ITS OWN DELIBERATE CONSTRUCTION OF WHAT IT
HAS DECIDED. 

THE DECISION THUS RESTED UPON AN ADEQUATE NON-FEDERAL GROUND AND IN
ACCORDANCE WITH LONG-ESTABLISHED DOCTRINE WE ARE WITHOUT JURISDICTION. 
FOX FILM CORP. V. MULLER, 296 U.S. 207, 210. 

THIS IS NOT A CASE WHERE THE RECORD LEAVES US IN UNCERTAINTY AS TO
WHAT HAS ACTUALLY BEEN DETERMINED BY THE STATE COURT.  HONEYMAN V.
HANAN, 300 U.S. 14, 23, 26; STATE TAX COMMISSION V. VAN COTT, 306 U.S.
511.  NOR HAVE THERE BEEN SUPERVENING CHANGES SINCE THE ENTRY OF THE
JUDGMENT.  GULF, C. & S.F. RY. CO. V. DENNIS, 224 U.S. 503, 507;
PATTERSON V. ALABAMA, 294 U.S. 600, 607.  I FIND NO WARRANT FOR
VACATING THE JUDGMENT ON EITHER OF THESE GROUNDS. 

THE FACT THAT PROVISIONS OF THE STATE AND FEDERAL CONSTITUTIONS MAY
BE SIMILAR OR EVEN IDENTICAL DOES NOT JUSTIFY US IN DISTURBING A
JUDGMENT OF A STATE COURT WHICH ADEQUATELY RESTS UPON ITS APPLICATION
OF THE PROVISION OF ITS OWN CONSTITUTION.  THAT THE STATE COURT MAY BE
INFLUENCED BY THE REASONING OF OUR OPINIONS MAKES NO DIFFERENCE.  THE
STATE COURT MAY BE PERSUADED BY MAJORITY OPINIONS IN THIS COURT OR IT
MAY PREFER THE REASONING OF DISSENTING JUDGES, BUT THE JUDGMENT OF THE
STATE COURT UPON THE APPLICATION OF ITS OWN CONSTITUTION REMAINS A
JUDGMENT WHICH WE ARE WITHOUT JURISDICTION TO REVIEW.  WHETHER IN THIS
CASE WE THOUGHT THAT THE STATE TAX WAS REPUGNANT TO THE FEDERAL
CONSTITUTION OR CONSISTENT WITH IT, THE JUDGMENT OF THE STATE COURT
THAT THE TAX VIOLATED THE STATE CONSTITUTION WOULD STILL STAND.  IT
CANNOT BE SUPPOSED THAT THE SUPREME COURT OF MINNESOTA IS NOT FULLY
CONSCIOUS OF ITS INDEPENDENT AUTHORITY TO CONSTRUE THE CONSTITUTION OF
THE STATE, WHATEVER REASONS IT MAY ADDUCE IN SO DOING.  AS THE
MINNESOTA COURT SAID IN REED V. BJORNSON, 191 MINN. 254, 257; 253 N.W.
102, 104, AFTER REFERRING TO THE QUESTION PRESENTED UNDER THE FEDERAL
CONSTITUTION, "OUR INTERPRETATION OF OUR OWN CONSTITUTION IS OF COURSE
FINAL." 

THE DISPOSITION OF THIS CASE IS DIRECTLY WITHIN OUR RECENT AND
UNANIMOUS RULING IN NEW YORK CITY V. CENTRAL SAVINGS BANK, 306 U.S.
661.  IN THAT CASE, THE COURT OF APPEALS OF NEW YORK HAD DECIDED THAT A
STATE STATUTE WAS REPUGNANT TO THE DUE PROCESS CLAUSE OF THE STATE
CONSTITUTION, THAT CLAUSE BEING THE SAME AS THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT WHICH THE COURT HELD HAD ALSO BEEN VIOLATED. 
280 N.Y. 9, 10; 19 N.E.2D 659.  WE DECLINED JURISDICTION UPON THE
GROUND THAT THE JUDGMENT OF THE STATE COURT IN APPLYING THE STATE
CONSTITUTION RESTED UPON AN ADEQUATE NON-FEDERAL GROUND, DESPITE THE
RELIANCE UPON OUR DECISIONS. 

MR. JUSTICE STONE AND MR. JUSTICE ROBERTS JOIN IN THIS OPINION. 
..END :


















TRADESMENS BANK V. TAX COMM'N, 309 U.S. 560 


NO. 596.  SUBMITTED MARCH 6, 1940.  - DECIDED MARCH 25, 1940.  - 185
OKLA. 656 - 95 P.2D 121, AFFIRMED. 


1.  CONGRESS CONSTITUTIONALLY MAY AUTHORIZE STATE TAXATION OF THE
FRANCHISES OF NATIONAL BANKING ASSOCIATIONS.  P. 564. 

2.  R.S. SEC. 5219, AS AMENDED MARCH 25, 1926, AUTHORIZES STATE
TAXATION OF NATIONAL BANKING ASSOCIATIONS - IN ADDITION TO OTHER
METHODS THERETOFORE AUTHORIZED - "ACCORDING TO OR MEASURED BY THEIR NET
INCOME," INCLUDING "THE ENTIRE NET INCOME RECEIVED FROM ALL SOURCES,"
SUBJECT ONLY TO CERTAIN RESTRICTIONS AS TO THE RATE.  AS AMENDED IN
1935, AN OKLAHOMA STATUTE IMPOSING ON SUCH ASSOCIATIONS A TAX MEASURED
BY NET INCOME, CONTAINED A PROVISION EXPRESSLY INCLUDING IN GROSS
INCOME (FROM WHICH THE NET INCOME WAS COMPUTED) INTEREST FROM TAX
EXEMPT FEDERAL SECURITIES, WHICH THERETOFORE HAD BEEN EXPRESSLY
EXCLUDED.  HELD, A TAX UNDER THE OKLAHOMA STATUTE, THE MEASURE OF WHICH
INCLUDED DIVIDENDS ON FEDERAL RESERVE BANK STOCK AND INTEREST ON TAX
EXEMPT FEDERAL SECURITIES, WAS AUTHORIZED BY R.S. SEC. 5219, AND
VALID.  P. 565. 

3.  THAT THE OKLAHOMA STATUTE, IN PROVISIONS FOR COMPUTING TAXES ON
NET INCOME OF CORPORATIONS OTHER THAN NATIONAL BANKING ASSOCIATIONS,
EXPRESSLY EXCLUDES INTEREST FROM TAX-EXEMPT FEDERAL SECURITIES, DOES
NOT RENDER IT VIOLATIVE OF THE RESTRICTION IN R.S. SEC. 5219 THAT "THE
RATE SHALL NOT BE HIGHER THAN  ...  THE HIGHEST OF THE RATES  ...
ASSESSED UPON MERCANTILE, MANUFACTURING, AND BUSINESS CORPORATIONS
DOING BUSINESS" WITHIN THE STATE, WHERE, CONSIDERING THE STATE'S TAX
STRUCTURE AS A WHOLE, NO DISCRIMINATION AGAINST NATIONAL BANKING
ASSOCIATIONS RESULTS.  P. 567. 

THAT A FEW INDIVIDUAL CORPORATIONS, OUT OF A CLASS OF SEVERAL
THOUSAND WHICH ORDINARILY BEAR THE SAME OR A HEAVIER TAX BURDEN, MAY
SUSTAIN A LIGHTER TAX THAN THAT IMPOSED ON NATIONAL BANKING
ASSOCIATIONS, IS NOT PROOF OF DISCRIMINATION. 

4.  THE RESTRICTIONS PLACED BY R.S. SEC. 5219 ON THE PERMITTED
METHODS OF TAXATION ARE DIRECTED AT SYSTEMS OF STATE TAXATION WHICH IN
PRACTICAL OPERATION DISCRIMINATE AGAINST NATIONAL BANKING ASSOCIATIONS
OR THEIR SHAREHOLDERS AS A CLASS.  P. 567. 

TRADESMENS NATIONAL BANK OF OKLAHOMA CITY V. OKLAHOMA TAX COMMISSION. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT DENYING RECOVERY OF TAXES
ALLEGED TO HAVE BEEN ILLEGALLY EXACTED. 

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL UNDER SEC. 237 OF THE JUDICIAL CODE FROM A JUDGMENT
OF THE SUPREME COURT OF OKLAHOMA, DENYING RECOVERY OF TAXES ALLEGED TO
HAVE BEEN EXACTED FROM APPELLANT, A NATIONAL BANKING CORPORATION, IN
VIOLATION OF THE PROVISIONS OF R.S. 5219 AND THE CONSTITUTION OF THE
UNITED STATES. 

ART. 6,  FN1  LAYS A TAX UPON EVERY NATIONAL BANKING ASSOCIATION
LOCATED OR DOING BUSINESS WITHIN THE STATE "ACCORDING TO, OR MEASURED
BY, ITS NET INCOME" AT THE RATE OF SIX PER CENTUM.  SECTION 17 PROVIDES
FOR A SIMILAR TAX UPON STATE BANKS AND MORRIS PLAN COMPANIES. 

THE NET INCOME USED AS THE MEASURE OF THE TAX UNDER SECS. 16 AND 17
IS DETERMINED BY SUBTRACTING FROM GROSS INCOME, AS DEFINED IN SEC. 18,
CERTAIN DEDUCTIONS ALLOWED BY SEC. 9.  SECTION 18 DEFINES GROSS INCOME
FOR THE PURPOSES OF "NATIONAL BANKING ASSOCIATIONS, STATE BANKS, TRUST
COMPANIES AND OTHER FINANCIAL CORPORATIONS," SEC. 8(C).  IT
SPECIFICALLY INCLUDES IN GROSS INCOME "INTEREST UPON THE OBLIGATIONS OF
THE UNITED STATES, OR ITS POSSESSIONS, OR UPON SECURITIES ISSUED UNDER
THE AUTHORITY OF AN ACT OF CONGRESS, THE INCOME FROM WHICH IS TAX
FREE." 

ALL OTHER TYPES OF CORPORATIONS ARE TAXED AT THE FLAT RATE OF SIX PER
CENTUM UPON THE NET INCOME ALLOCABLE TO BUSINESS TRANSACTED WITHIN THE
STATE, SEC. 6.  NET INCOME FOR THIS PURPOSE IS DETERMINED BY MAKING
CERTAIN SPECIFIED DEDUCTIONS FROM GROSS INCOME, SECS. 7, 9, WHICH IS
DEFINED EXPRESSLY SO AS TO EXCLUDE INTEREST ON TAX-IMMUNE FEDERAL
SECURITIES, SEC. 8(B)(4). 

THE APPELLEE OKLAHOMA TAX COMMISSION, IN ASSESSING APPELLANT'S TAX
FOR THE YEAR 1936 UNDER SEC. 16, INCLUDED IN GROSS INCOME THE DIVIDENDS
RECEIVED BY APPELLANT ON STOCK OWNED BY IT IN A FEDERAL RESERVE BANK
AND THE INTEREST RECEIVED ON BONDS AND NOTES ISSUED PURSUANT TO ACTS OF
CONGRESS DECLARING THE INCOME FROM SUCH SECURITIES TAX EXEMPT.  FN2
THE PRESENT SUIT WAS BROUGHT BY APPELLANT TO RECOVER THAT PORTION OF
THE TAX, PAID UNDER PROTEST, WHICH RESULTED FROM INCLUDING SUCH
DIVIDENDS AND INTEREST IN THE COMPUTATION. 

R.S. 5219, 12 U.S.C. SEC. 548, COPIED IN THE MARGIN,  FN3  AUTHORIZES
FOUR ALTERNATIVE METHODS WHEREBY A STATE MAY IMPOSE A TAX ON NATIONAL
BANKING ASSOCIATIONS LOCATED WITHIN ITS LIMITS.  METHOD NUMBERED (4)
PROVIDES FOR A TAX ON SUCH ASSOCIATIONS "ACCORDING TO, OR MEASURED BY"
"THE ENTIRE NET INCOME RECEIVED FROM ALL SOURCES" SUBJECT ONLY TO
CERTAIN RESTRICTIONS AS TO THE RATE.  THIS METHOD WAS ADDED TO THE
THREE PREVIOUSLY AUTHORIZED UNDER R.S. 5219 BY AN AMENDMENT OF MARCH
25, 1926, C. 88, 44 STAT. 223.  THE PLAIN MEANING OF THE AMENDMENT IS
CONFIRMED BY ITS LEGISLATIVE HISTORY SHOWING BEYOND DOUBT THAT CONGRESS
INTENDED TO AUTHORIZE A FRANCHISE TAX MEASURED BY NET INCOME INCLUDING
INTEREST ON TAX-IMMUNE FEDERAL SECURITIES.  FN4 

OKLAHOMA IN THE 1935 ACT EXPRESSLY FOLLOWED AND ADOPTED THE METHOD
THUS AUTHORIZED IN THE AMENDMENT.  SEE FIRST NATIONAL BANK V. OKLAHOMA
TAX COMMISSION, 185 OKLA. 98; 90 P.2D 438.  SUBSECTION (B) OF SEC. 16
EXPRESSLY DECLARES THAT THE STATE THEREBY ADOPTS METHOD NUMBERED (4)
AUTHORIZED BY R.S. 5219, 12 U.S.C. SEC. 548. 

THE POWER OF CONGRESS TO AUTHORIZE A STATE TO IMPOSE A TAX ON THE
FRANCHISE OF A NATIONAL BANKING ASSOCIATION CAN NOT NOW BE DOUBTED. 
VAN ALLEN V. ASSESSORS, 3 WALL.  573.  COMPARE KEIFER & KEIFER V.
RECONSTRUCTION FINANCE CORP., 306 U.S. 381, 389; HELVERING V. GERHARDT,
304 U.S. 405, 411-412N; FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229, 234
235.  ANY IMMUNITY ATTACHING TO THE FRANCHISE BY VIRTUE OF R.S. 5219 AS
IT READ PRIOR TO THE 1926 AMENDMENT, COMPARE PITTMAN V. HOME OWNERS'
LOAN CORP., 308 U.S. 21, COULD BE WITHDRAWN BY CONGRESS AND THE
FRANCHISE SUBJECTED TO STATE TAXING POWER, JUST AS NATIONAL BANK SHARES
WERE SO SUBJECTED BY THE ACT OF JUNE 3, 1864.  VAN ALLEN V. ASSESSORS,
3 WALL.  573.  SEE DES MOINES NATIONAL BANK V. FAIRWEATHER, 263 U.S.
103; PEOPLES NATIONAL BANK V. BOARD OF EQUALIZATION, 260 U.S. 702. 

THE POWER OF A STATE TO LEVY A TAX ON A LEGITIMATE SUBJECT, SUCH AS A
FRANCHISE, MEASURED BY NET ASSETS OR NET INCOME INCLUDING TAX-EXEMPT
FEDERAL INSTRUMENTALITIES OR THEIR INCOME IS LIKEWISE WELL SETTLED. 
SOCIETY FOR SAVINGS V. COITE, 6 WALL.  594; PROVIDENT INSTITUTION V.
MASSACHUSETTS, 6 WALL.  611; HOME INSURANCE CO. V. NEW YORK, 134 U.S.
594; EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379.  THUS STATE LAWS
TAXING THE SHAREHOLDERS OF NATIONAL BANKS IN ACCORDANCE WITH R.S. 5219
ON THE FULL NET VALUE OF THEIR SHARES, ALTHOUGH THE BANKS OWNED TAX
EXEMPT FEDERAL SECURITIES, HAVE BEEN CONSISTENTLY UPHELD.  DES MOINES
NATIONAL BANK V. FAIRWEATHER, 263 U.S. 103; PEOPLES NATIONAL BANK V.
BOARD OF EQUALIZATION, 260 U.S. 702; VAN ALLEN V. ASSESSORS, 3 WALL. 
573.  THE RULE THAT A TAX UPON A LEGITIMATE SUBJECT, MEASURED BY NET
INCOME, INCLUDING THAT FROM TAX-IMMUNE FEDERAL INSTRUMENTALITIES, IS
NOT AN INFRINGEMENT OF THE IMMUNITY, WAS AFFIRMED IN FLINT V. STONE
TRACY CO., 220 U.S. 107, 147, 165, AND FOLLOWED IN EDUCATIONAL FILMS
CORP. V. WARD, 282 U.S. 379.  COMPARE PACIFIC CO. V. JOHNSON, 285 U.S.
480, 490.  THE TAX-IMMUNITY CONFERRED ON THE SECURITIES OWNED BY
APPELLANT HAS NOT BEEN SHOWN TO BE ANY GREATER IN EXTENT THAN THAT
CONFERRED ON THE FEDERAL SECURITIES INCLUDED IN THE MEASURE OF THE
TAXES SUSTAINED IN THE CITED CASES. 

IDENTICAL WITH THE CORRESPONDING SECTIONS OF THE 1935 ACT, BUT SEC. 18
OF THE PRIOR ACT CONTAINED A PROVISION EXPRESSLY EXCLUDING FROM GROSS
INCOME THE INTEREST ON TAX-IMMUNE FEDERAL SECURITIES. 

APPELLANT CONTENDS THAT THE ACT OF 1935, BY EXPRESSLY INCLUDING IN
THE MEASURE OF THE TAX THE INTEREST ON FEDERAL SECURITIES WHICH BEFORE
HAD BEEN EXPRESSLY EXCLUDED FROM THE MEASURE, MUST BE REGARDED NOT AS A
VALID FRANCHISE TAX BUT AS AN UNCONSTITUTIONAL LEVY ON THE TAX-IMMUNE
INCOME ITSELF.  IN SUPPORT OF ITS POSITION, ITS MAIN RELIANCE IS PLACED
UPON OUR DECISION IN MACALLEN V. MASSACHUSETTS, 279 U.S. 620. 

A SIMILAR CONTENTION WAS URGED AGAINST THE CALIFORNIA FRANCHISE TAX
MEASURED BY NET INCOME, INCLUDING TAX-EXEMPT INCOME ON STATE BONDS,
WHICH WAS UPHELD IN PACIFIC CO. V. JOHNSON, 285 U.S. 480.  IN REJECTING
THE CLAIM, THE HOLDING IN THE MACALLEN CASE WAS REFERRED TO AS FOLLOWS
(285 U.S. AT 494):  "THERE THE COMMONWEALTH, WHICH HAD LONG IMPOSED A
TAX ON CORPORATE FRANCHISES MEASURED BY TAXABLE INCOME OF THE
CORPORATION, AMENDED ITS STATUTES SO AS TO ADD THE INCOME FROM TAX
EXEMPT BONDS OF THE FEDERAL GOVERNMENT TO THE MEASURE OF THE TAX.  IT
WAS HELD THAT THIS CHANGE OF TAXATION POLICY, EMBODIED IN THE STATUTE
AND 'ADOPTED AS THOUGH IT HAD BEEN SO DECLARED IN PRECISE WORDS FOR THE
VERY PURPOSE OF SUBJECTING THESE SECURITIES PRO TANTO TO THE BURDEN OF
THE TAX,' WAS INVALID.  THUS THE LEGISLATIVE ABANDONMENT OF A POLICY
WHICH HAD PREVIOUSLY DISCRIMINATED IN FAVOR OF TAX-EXEMPT SECURITIES
WAS TREATED AS A DISCRIMINATION AGAINST THEM, AND THE TAX, ALTHOUGH IN
FACT NON-DISCRIMINATORY, WAS CONDEMNED AS ANALOGOUS TO THE
DISCRIMINATORY TAX HELD INVALID IN THE MILLER CASE (MILLER V.
MILWAUKEE, 272 U.S. 713)."  SEE ALSO EDUCATIONAL FILMS CORP. V. WARD,
282 U.S. 379, 392-393. 

IT CANNOT BE SAID THAT THE OKLAHOMA TAX IN QUESTION HERE WAS AIMED AT
TAX-EXEMPT FEDERAL SECURITIES IN THE MANNER THUS DISCLOSED AND
CONDEMNED IN THE MACALLEN CASE.  THE HISTORY OF THE OKLAHOMA
LEGISLATION ON THIS SUBJECT DISCLOSES ONLY THAT IT SOUGHT TO CHANGE ITS
POLICY PURSUANT TO THE EXPRESS AUTHORIZATION CONFERRED BY R.S. 5219. 
IT HAS EFFECTED ITS PURPOSE BY INCLUDING WITHIN THE MEASURE OF ITS
FRANCHISE TAX ON NATIONAL BANKS THE ENTIRE NET INCOME WITHOUT RESPECT
TO SOURCE AND WITHOUT DISCRIMINATION AGAINST TAX-EXEMPT FEDERAL
SECURITIES.  SEE FIRST NATIONAL BANK V. OKLAHOMA TAX COMMISSION, 185
OKLA. 98; 90 P.2D 438. 

WE DO NOT NOW DECIDE JUST WHAT CIRCUMSTANCES, IF ANY, WOULD BRING A
SITUATION WITHIN THE PRECISE SCOPE OF THE MACALLEN CASE, ASSUMING THAT
CASE STILL HAS VITALITY.  IT IS SUFFICIENT TO HOLD, AS WE DO, THAT THE
STATUTE IN THE INSTANT CASE MEETS THE TEST STATED IN PACIFIC CO. V.
JOHNSON, VIZ: "SINCE THE MERE INTENT OF THE LEGISLATURE TO DO THAT
WHICH THE CONSTITUTION PERMITS CANNOT DEPRIVE LEGISLATION OF ITS
CONSTITUTIONAL VALIDITY,  ...  THE PRESENT ACT MUST BE JUDGED BY ITS
OPERATION RATHER THAN BY THE MOTIVES WHICH INSPIRED IT.  AS IT OPERATES
TO MEASURE THE TAX ON THE CORPORATE FRANCHISE BY THE ENTIRE NET INCOME
OF THE CORPORATION, WITHOUT ANY DISCRIMINATION BETWEEN INCOME WHICH IS
EXEMPT AND THAT WHICH IS NOT, THERE IS NO INFRINGEMENT OF ANY
CONSTITUTIONAL IMMUNITY." 

APPELLANT FINALLY CONTENDS THAT THE TAX HERE IN QUESTION VIOLATES THE
RESTRICTION IN R.S. 5219 THAT "THE RATE SHALL NOT BE HIGHER THAN  ...
THE HIGHEST OF THE RATES  ...  ASSESSED UPON MERCANTILE, MANUFACTURING,
AND BUSINESS CORPORATIONS DOING BUSINESS" WITHIN THE STATE.  FN5 

A CONSIDERATION OF THE COURSE OF JUDICIAL DECISION ON R.S. 5219 AND
ITS PREDECESSORS CAN LEAVE NO DOUBT THAT THE VARIOUS RESTRICTIONS IT
PLACES ON THE PERMITTED METHODS OF TAXATION ARE DESIGNED TO PROHIBIT
ONLY THOSE SYSTEMS OF STATE TAXATION WHICH DISCRIMINATE IN PRACTICAL
OPERATION AGAINST NATIONAL BANKING ASSOCIATIONS OR THEIR SHAREHOLDERS
AS A CLASS.  COMPARE FIRST NATIONAL BANK V. HARTFORD, 273 U.S. 548;
AMOSKEAG SAVINGS BANK V. PURDY, 231 U.S. 373; COVINGTON V. FIRST
NATIONAL BANK, 198 U.S. 100; LIONBERGER V. ROUSE, 9 WALL.  468.  THUS
IT IS NOT A VALID OBJECTION TO A TAX ON NATIONAL BANK SHARES THAT OTHER
MONEYED CAPITAL IN THE STATE OR SHARES OF STATE BANKS ARE TAXED AT A
DIFFERENT RATE OR ASSESSED BY A DIFFERENT METHOD UNLESS IT APPEARS THAT
THE DIFFERENCE IN TREATMENT RESULTS IN FACT IN A DISCRIMINATION
UNFAVORABLE TO THE HOLDERS OF THE SHARES OF NATIONAL BANKS.  AMOSKEAG
SAVINGS BANK V. PURDY, 231 U.S. 373; COVINGTON V. FIRST NATIONAL BANK,
198 U.S. 100.  FN6  WE THINK THE SAME PURPOSE TO PREVENT ACTUAL
DISCRIMINATION BUT TO ALLOW THE STATES CONSIDERABLE FREEDOM IN WORKING
OUT AN EQUITABLE TAX SYSTEM IS DISCERNABLE IN THE PARTICULAR
RESTRICTION UPON WHICH APPELLANT RELIES. 

THE RESOLUTION OF THE ISSUE RAISED BY APPELLANT THUS TURNS UPON AN
EXAMINATION OF THE WHOLE TAX STRUCTURE OF THE STATE.  COUNSEL HAVE
STIPULATED THAT SIX THOUSAND BUSINESS AND MERCANTILE CORPORATIONS, IN
ADDITION TO PAYING THE INCOME TAX IMPOSED BY SEC. 6 ON SIX PER CENTUM
OF THEIR NET INCOME, FILED A CORPORATION LICENSE TAX RETURN FOR THE
YEAR 1936 AND PAID A TAX BASED ON ONE DOLLAR PER ONE THOUSAND DOLLARS
OF THE VALUE OF THE CAPITAL STOCK EMPLOYED WITHIN THE STATE, AND THAT
THE GOVERNMENT BONDS HELD BY EACH WERE INCLUDED AS CAPITAL IN THE
MEASURE OF THE FRANCHISE TAX.  THEY FURTHER STIPULATED THAT ONLY THIRTY
SEVEN OF THESE SIX THOUSAND CORPORATIONS OWNED GOVERNMENT BONDS AND
THAT, IN THE CASE OF ALL BUT THREE, THE FRANCHISE TAXES PAID EXCEEDED
THE ADDITIONAL AMOUNTS WHICH WOULD HAVE BEEN DUE UNDER THE INCOME TAX
IMPOSED BY SEC. 6 HAD THEIR GROSS INCOME, CONTRARY TO THE FACT,
INCLUDED THE INTEREST DERIVED FROM THE BONDS.  IN ADDITION TO THE
FOREGOING TAXES, SO IT IS STIPULATED, EACH OF THESE CORPORATIONS PAID
AN AD VALOREM TAX ON ITS MONEYED CAPITAL. 

THIS BRIEF SURVEY SUFFICES TO SHOW THAT, CONSIDERING ALL THE TAXES
IMPOSED UPON BUSINESS AND MERCANTILE CORPORATIONS DOING BUSINESS IN THE
STATE, THE SCHEME OF TAXATION ADOPTED BY OKLAHOMA DOES NOT DISCRIMINATE
AGAINST NATIONAL BANKING ASSOCIATIONS.  DISCRIMINATION IS NOT SHOWN
MERELY BECAUSE A FEW INDIVIDUAL CORPORATIONS, OUT OF A CLASS OF SEVERAL
THOUSAND WHICH ORDINARILY BEAR THE SAME OR A HEAVIER TAX BURDEN, MAY
SUSTAIN A LIGHTER TAX THAN THAT IMPOSED ON NATIONAL BANKING
ASSOCIATIONS.  COMPARE AMOSKEAG SAVINGS BANK V. PURDY, 231 U.S. 373, AT
393; LIONBERGER V. ROUSE, 9 WALL.  468.  JUDGED IN THE LIGHT OF THE
ESTABLISHED POLICY OF CONGRESS WITH RESPECT TO THIS SUBJECT, THE 1935
OKLAHOMA TAXING STATUTE CANNOT BE HELD TO VIOLATE THE PROVISIONS OF
R.S. 5219. 

THE OTHER CONTENTIONS ADVANCED BY APPELLANT HAVE BEEN CONSIDERED AND
FOUND TO BE WITHOUT SUBSTANCE.  AFFIRMED. 

FN1  THE TEXT OF SEC. 16 READS AS FOLLOWS: 

"(A)  IN LIEU OF THE TAX IMPOSED BY SECTION 6, EVERY NATIONAL BANKING
ASSOCIATION LOCATED OR DOING BUSINESS WITHIN THE LIMITS OF THE STATE OF
OKLAHOMA, SHALL ANNUALLY, PAY TO THIS STATE, A TAX ACCORDING TO, OR
MEASURED BY, ITS NET INCOME, TO BE COMPUTED IN THE MANNER HEREINAFTER
PROVIDED, AT THE FOLLOWING RATES UPON THE BASIS OF ITS ENTIRE NET
INCOME FOR THE NEXT PRECEDING FISCAL OR CALENDAR YEAR: 

"SIX (6%) PER CENTUM OF THE AMOUNT OF THE NET INCOME AS HEREIN
PROVIDED. 

"(B)  THE STATE OF OKLAHOMA IS HEREBY ADOPTING METHOD NUMBERED (4),
AUTHORIZED BY SECTION 5219, U.S. REVISED STATUTES, AS AMENDED.  THE TAX
IMPOSED BY THIS SECTION SHALL BE EXCLUSIVE AND IN LIEU OF ALL TAXES
IMPOSED BY THE STATE OF OKLAHOMA, OR ANY SUBDIVISION THEREOF, ON THE
PROPERTY OF ANY ASSOCIATION LIABLE TO TAX HEREUNDER; PROVIDED, THAT
NOTHING IN THIS SECTION SHALL BE CONSTRUED TO EXEMPT THE REAL PROPERTY
OF NATIONAL BANKING ASSOCIATIONS FROM TAXATION TO THE SAME EXTENT,
ACCORDING TO ITS VALUE, AS OTHER REAL PROPERTY IS TAXED."           .
 .         .         .         . 

FN2  THE STIPULATION OF FACTS SHOWS THAT THE INTEREST USED IN THE
COMPUTATION OF THE TAX WAS DERIVED FROM THE FOLLOWING TYPES OF
SECURITIES:  U.S. TREASURY NOTES; U.S. TREASURY BONDS; BONDS OF THE
FEDERAL FARM LOAN ACT; JOINT STOCK LAND BANK BONDS; HOME OWNERS' LOAN
CORPORATION BONDS; AND FEDERAL LAND BANK BONDS. 

FN3  "THE LEGISLATURE OF EACH STATE MAY DETERMINE AND DIRECT, SUBJECT
TO THE PROVISIONS OF THIS SECTION, THE MANNER AND PLACE OF TAXING ALL
THE SHARES OF NATIONAL BANKING ASSOCIATIONS LOCATED WITHIN ITS LIMITS. 
THE SEVERAL STATES MAY (1) TAX SAID SHARES, OR (2) INCLUDE DIVIDENDS
DERIVED THEREFROM IN THE TAXABLE INCOME OF AN OWNER OR HOLDER THEREOF,
OR (3) TAX SUCH ASSOCIATIONS ON THEIR NET INCOME, OR (4) ACCORDING TO
OR MEASURED BY THEIR NET INCOME, PROVIDED THE FOLLOWING CONDITIONS ARE
COMPLIED WITH: 

"1. (A)  THE IMPOSITION BY ANY STATE OF ANY ONE OF THE ABOVE FOUR
FORMS OF TAXATION SHALL BE IN LIEU OF THE OTHERS, EXCEPT AS HEREINAFTER
PROVIDED IN SUBDIVISION (C) OF THIS CLAUSE. 

     .         .         .         .         . 

"(C)  IN CASE OF A TAX ON OR ACCORDING TO OR MEASURED BY THE NET
INCOME OF AN ASSOCIATION, THE TAXING STATE MAY, EXCEPT IN CASE OF A TAX
ON NET INCOME, INCLUDE THE ENTIRE NET INCOME RECEIVED FROM ALL SOURCES,
BUT THE RATE SHALL NOT BE HIGHER THAN THE RATE ASSESSED UPON OTHER
FINANCIAL CORPORATIONS NOR HIGHER THAN THE HIGHEST OF THE RATES
ASSESSED BY THE TAXING STATE UPON MERCANTILE, MANUFACTURING, AND
BUSINESS CORPORATIONS DOING BUSINESS WITHIN ITS LIMITS: 

     .         .         .         .         . 

"3.  NOTHING HEREIN SHALL BE CONSTRUED TO EXEMPT THE REAL PROPERTY OF
ASSOCIATIONS FROM TAXATION IN ANY STATE OR IN ANY SUBDIVISION THEREOF,
TO THE SAME EXTENT, ACCORDING TO ITS VALUE, AS OTHER REAL PROPERTY IS
TAXED." 

FN4  67 CONG. REC. 5760-5762, 5822-5823, 6082-6089. 

FN5  NO CLAIM IS MADE THAT STATE FINANCIAL INSTITUTIONS RECEIVE MORE
FAVORABLE TREATMENT THAN NATIONAL BANKING ASSOCIATIONS.  SECTIONS 17,
18 AND 8(C) SHOW THAT THE TAX IMPOSED ON SUCH STATE INSTITUTIONS IS THE
EQUIVALENT OF THE TAX LEVIED BY SEC. 16 ON NATIONAL BANKS. 

FN6  SEE ALSO DAVENPORT BANK V. DAVENPORT BOARD OF EQUALIZATION, 123
U.S. 83; MERCANTILE BANK V. NEW YORK, 121 U.S. 138; DES MOINES V.
FAIRWEATHER, 263 U.S. 103. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :













PARAMINO CO. V. MARSHALL, 309 U.S. 370 


NO. 271.  ARGUED JANUARY 30, 1940.  - DECIDED MARCH 11, 1940.  - 27
F.SUPP.  823, AFFIRMED. 


1.  A PRIVATE ACT OF CONGRESS WHICH, AFTER AN AWARD OF COMPENSATION
FOR DISABILITY MADE BY A DEPUTY COMMISSIONER UNDER THE LONGSHOREMEN'S &
HARBOR WORKERS' COMPENSATION ACT HAD BECOME FINAL BY EXPIRATION OF THE
TIME FOR REVIEW, AUTHORIZED AND DIRECTED THE EMPLOYEES' COMPENSATION
COMMISSION TO REVIEW THE ORDER AND ISSUE A NEW ONE, WHEREUPON THERE WAS
AWARDED ADDITIONAL COMPENSATION FOR DISABILITY CONTINUING BEYOND THE
DATE AS OF WHICH BY THE PRIOR ORDER IT WAS DEEMED TO HAVE TERMINATED,
HELD, AS TO THE EMPLOYER AND INSURANCE CARRIER, NOT VIOLATIVE OF THE
DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  PP. 374, 378. 

2.  THE ACT WAS VALIDLY ENACTED BY CONGRESS TO CURE A DEFECT IN
ADMINISTRATION DEVELOPED IN THE HANDLING OF A CLAIM COMPENSABLE UNDER
THE LONGSHOREMEN'S & HARBOR WORKERS' COMPENSATION ACT.  P. 379. 

3.  THE ENACTMENT BY CONGRESS OF PRIVATE ACTS, EXCEPT BILLS OF
ATTAINDER AND GRANTS OF NOBILITY, IS NOT FORBIDDEN BY THE FEDERAL
CONSTITUTION.  P. 380. 

4.  THE CONTENTION THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT SHOULD BE READ INTO THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT, AND THAT THE ACT DENIES EQUAL PROTECTION, IS REJECTED.  PP.
379-380. 

5.  THE ACT IS NOT INVALID AS AN ENCROACHMENT BY CONGRESS ON THE
JUDICIAL FUNCTION.  P. 381. 

PARAMINO LUMBER CO. ET AL. V. MARSHALL, DEPUTY COMMISSIONER, ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF WASHINGTON. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES UPHOLDING
THE CONSTITUTIONALITY OF A SPECIAL ACT OF CONGRESS AND DISMISSING
LIBELS IN TWO CASES CONSOLIDATED FOR HEARING. 

THE ACT GRANTS TO CLARK SPECIAL PRIVILEGES NOT ACCORDED TO OTHER
LONGSHOREMEN SIMILARLY SITUATED, AND DENIES TO APPELLANTS THE EQUAL
PROTECTION OF THE LAWS. 

DUE PROCESS HAS THE SAME MEANING IN THE FIFTH AND FOURTEENTH
AMENDMENTS.  TWINING V. NEW JERSEY, 211 U.S. 78, 100, 101; UNITED
STATES V. ARMSTRONG, 265 F. 683, 690; HEINER V. DONNAN, 285 U.S. 312,
326; BARTLETT TRUST CO. V. ELLIOTT, 30 F.2D 700, 701; HIBBEN V. SMITH,
191 U.S. 310, 325. 

DUE PROCESS REQUIRES EQUAL TREATMENT OF ALL PERSONS SIMILARLY
SITUATED, AND PROTECTS AGAINST ARBITRARY CLASSIFICATION AND
DISCRIMINATION BY CONGRESS.  HURTADO V. CALIFORNIA, 110 U.S. 516, 535,
536; UNITED STATES V. ARMSTRONG, SUPRA; UNITED STATES V. YOUNT, 267 F.
861, 863; LEEPER V. TEXAS, 139 U.S. 462; GIOZZA V. TIERNAN, 148 U.S.
657, 662; BANK OF COLUMBIA V. OKELEY, 4 WH. 235, 244; CALDWELL V.
TEXAS, 137 U.S. 692, 697; SOUTHERN BELL T. & T. CO. V. CALHOUN, 287 F.
381, 384; UNITED STATES V. BALLARD, 12 F.SUPP.  321, 326; WALLACE V.
CURRIN, 95 F.2D 856, 867; PRYOR V. WESTERN PAVING CO., 184 P. 88, 90;
VANZANT V. WADDEL, 2 YERG.  260, 269, 270; SIMS V. RIVES, 84 F.2D 871,
878; SEE, ALSO, MAXWELL V. DOW, 176 U.S. 581; BARCLAY V. EDWARDS, 267
U.S. 442, 450.  CF. TRUAX V. CORRIGAN, 257 U.S. 312, 331, 332. 

THE DUE PROCESS PROVISION OF THE FIFTH AMENDMENT IS BROAD ENOUGH IN
ITS SCOPE AND PURPOSE TO INCLUDE THE EQUAL PROTECTION CLAUSE
SPECIFICALLY SET FORTH IN THE FOURTEENTH AMENDMENT.  WILLOUGHBY ON THE
CONSTITUTION, 2D ED., (1929) PP. 1928, 1929; STORY ON THE CONSTITUTION,
5TH ED., (1891) PP. 705, 706. 

THE ACT IS VIOLATIVE OF DUE PROCESS HOWEVER BENEFICENT ITS PURPOSE. 

THE COMPENSATION AWARD WAS A FINAL ADJUDICATION VESTING PROPERTY
RIGHTS.  A VALID, FINAL JUDGMENT VESTS PROPERTY RIGHTS NOT ALTERABLE BY
SUBSEQUENT LEGISLATION. 

UNITED STATES V. PETERS, 5 CRANCH 115, 136; MCCULLOUGH V. VIRGINIA,
172 U.S. 102, 125; MEMPHIS V. UNITED STATES, 97 U.S. 293, 297; HOYT
METAL CO. V. ATWOOD, 289 F. 453, 454, 455; GILMAN V. TUCKER, 28 N.E.
1040. 

A COMPENSATION ORDER UNDER THE LONGSHOREMEN'S ACT IS A FINAL
DETERMINATION OF "PRIVATE RIGHT, THAT IS, OF THE LIABILITY OF ONE
INDIVIDUAL TO ANOTHER UNDER THE LAW AS DEFINED."  CROWELL V. BENSON,
285 U.S. 22, 51.  AN AWARD EMBODIES THE LIABILITY IMPOSED BY THE ACT;
AND THE DUTY TO ABIDE BY IT IS JUDICIALLY ENFORCEABLE. 

SUBJECT ONLY TO THE STATUTORY PROVISIONS FOR REVIEW AND MODIFICATION,
AN AWARD IS A FINAL DETERMINATION OF ALL QUESTIONS INVOLVED IN THE
LITIGATION AND THE RIGHTS AND LIABILITIES FIXED THEREIN ARE
UNALTERABLE.  SHUGARD V. HOAGE, 89 F.2D 796; MILLE V. MCMANIGAL, 69
F.2D 644; ASSOCIATED INDEMNITY CORP. V. MARSHALL, 71 F.2D 235; CAMPBELL
V. LOWE, 10 F.SUPP.  288; DIDIER V. CRESCENT WHARF & WAREHOUSE CO., 15
F.SUPP.  91; GLOBE STEVEDORING CO. V. PETERS, 57 F.2D 256; BULCZAK V.
INDEPENDENT PIER CO., 17 F.SUPP.  973; UNITED FRUIT CO. V. PILLSBURY,
55 F.2D 369.  SEE, ALSO, TWINE V. LOCKE, 68 F.2D 712. 

IN WILLIAMS V. NORRIS, 12 WH. 117, THE PRIVATE ACT WAS REMEDIAL
ONLY. 

ASSUMING THAT THE STATUTORY RIGHT TO FILE A CLAIM FOR THE REOPENING
OF AN AWARD AND FOR ADDITIONAL COMPENSATION IS IN THE NATURE OF A
CONTINUING CAUSE OF ACTION (COMPARE MATTSON V. DEPARTMENT OF LABOR AND
INDUSTRIES, 293 U.S. 151), THE TIME LIMITATION IS INSEPARABLE FROM THE
RIGHT.  YOUNG V. HOAGE, 90 F.2D 395; AYERS V. PARKER, 15 F.SUPP.  447;
KOBILKIN V. PILLSBURY, 103 F.2D 667. 

THE LAPSE OF THE TIME LIMIT ON SUCH STATUTORY CAUSES OF ACTION NOT
ONLY BARS THE REMEDY BUT DESTROYS THE LIABILITY AS WELL, AND AN ACT OF
THE LEGISLATURE REVIVING THEM CONSTITUTES A DEPRIVATION OF PROPERTY
WITHOUT DUE PROCESS OF LAW.  DANZER & CO. V. GULF & SHIP ISLAND R. CO.,
268 U.S. 633; PENINSULA PRODUCE EXCHANGE V. NEW YORK, P. & N.R. CO.,
137 A. 350; AFF'D 276 U.S. 599.  SEE, ALSO, NEW YORK CENTRAL R. CO. V.
LAZARUS, 278 F. 900, 904; WENATCHEE PRODUCE CO. V. GREAT NORTHERN RY.
CO., 271 F. 784, 785. 

THE ACT ATTEMPTS TO CREATE A NEW SUBSTANTIVE RIGHT FOR THE BENEFIT OF
CLARK AND IS NOT MERELY AN AMENDMENT TO THE LONGSHOREMEN'S ACT. 

ALTHOUGH RETROSPECTIVE OPERATION OF A STATUTE IN AND OF ITSELF
AFFORDS NO BASIS FOR INVALIDATING IT, THE VICE OF THIS ACT IS ITS
ATTEMPT TO ATTACH TO CLOSED TRANSACTIONS NEW LIABILITIES AND
OBLIGATIONS.  WEBSTER V. COOPER, 14 HOW.  488; BARNITZ V. BEVERLY, 163
U.S. 118; BRADLEY V. LIGHTCAP, 195 U.S. 1; ETTOR V. TACOMA, 288 U.S.
148; OCHOA V. HERNANDEZ Y MORALES, 230 U.S. 139.  SEE, ALSO, DASH V.
VAN KLEEK, 7 JOHNS.  477.  PROPERTY RIGHTS VESTED UNDER EXISTING
STATUTES MAY NOT BE DESTROYED BY REPEAL THEREOF.  UNITED STATES V.
KENDALL, 263 F. 126; ARNOLD & MURDOCK CO. V. INDUSTRIAL COMM'N, 145
N.E. 342; DOW V. NORRIS, 4 N.H. 16. 

A FURTHER INFIRMITY IS THAT THE ACT ARBITRARILY TAKES PROPERTY FROM
ONE PRIVATE INDIVIDUAL AND GIVES IT TO ANOTHER.  MISSOURI PACIFIC R.
CO. V. NEBRASKA, 164 U.S. 403; RAILROAD RETIREMENT BOARD V. ALTON R.
CO., 295 U.S. 330; DUNCAN & CO. V. WALLACE, 21 F.SUPP.  295, 308. 

THE ACT IS AN ATTEMPTED USURPATION BY CONGRESS OF JUDICIAL
FUNCTIONS.  IT IS JUDICIAL IN NATURE AND AUTHORIZES A READJUDICATION
BETWEEN INDIVIDUALS OF PRIVATE PROPERTY RIGHTS ARISING OUT OF PAST
TRANSACTIONS. 

LEGISLATIVE GRANT OF A NEW TRIAL, REHEARING OR FURTHER DETERMINATION
IN A CAUSE WHICH HAS PROCEEDED TO FINAL ADJUDICATION UNDER EXISTING
STATUTES IS AN ATTEMPTED EXERCISE OF JUDICIAL POWER.  MERRILL V.
SHERBURNE, 1 N.H. 199; PETITION OF SIBLERUD, 182 N.W. 168, 169; UNION
SCHOOL DISTRICT NO. 1 V. FOSTER LUMBER CO., 286 P. 774, 775; POCONO
PINES HOTELS CO. V. UNITED STATES, 73 CT. CLS. 447, 499; SEE, ALSO,
CASIERI'S CASE, 190 N.E. 118; ROLES SHINGLE CO. V. BERGERSON, 19 P.2D
94.  CONGRESS POSSESSES NO JUDICIAL POWER.  KILBOURN V. THOMPSON, 103
U.S. 168. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
IS VIOLATED BY A PRIVATE ACT OF CONGRESS DIRECTING A REVIEW OF AN ORDER
FOR COMPENSATION UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT  FN1  AFTER THERE HAD BEEN A FINAL AWARD BY THE DEPUTY
COMMISSIONER AND AFTER THE TIME FOR REVIEW OF THE AWARD HAD EXPIRED. 

ON JANUARY 17, 1931, THE APPELLEE CLARK FELL AND FRACTURED A RIB
WHILE WORKING ON THE NAVIGABLE WATERS OF THE UNITED STATES AS A
LONGSHOREMAN FOR THE APPELLANT PARAMINO LUMBER COMPANY.  THE OTHER
APPELLANT, THE UNION INSURANCE COMPANY OF CANTON, LTD., IS THE
INSURANCE CARRIER OF THE LUMBER COMPANY UNDER THE COMPENSATION ACT. 
THE FALL HAVING DISABLED CLARK, THE APPELLANTS VOLUNTARILY PAID HIM
COMPENSATION.  THEN, ON CLARK'S APPLICATION, HEARINGS WERE HAD UNDER
THE COMPENSATION ACT WHICH RESULTED IN A DETERMINATION ON AUGUST 26,
1931, BY THE DEPUTY COMMISSIONER THAT CLARK HAD BEEN WHOLLY DISABLED
FROM THE DATE OF HIS FALL TO JULY 4, 1931, THAT ON THE LATTER DATE HE
HAD RECOVERED FROM THE DISABILITY, AND THAT HE HAD BEEN PAID BY
APPELLANTS ALL THE COMPENSATION DUE HIM.  NO PROCEEDINGS BEING BROUGHT
TO REVIEW THIS AWARD, IT BECAME FINAL IN THIRTY DAYS.  FN2  ALMOST FIVE
YEARS LATER, THE CONGRESS PASSED A PRIVATE ACT ORDERING THE
COMPENSATION COMMISSION TO REVIEW CLARK'S CASE AND TO ISSUE A NEW
ORDER, THE PROVISIONS IN THE COMPENSATION ACT LIMITING TIME FOR
REVIEWING AWARDS "TO THE CONTRARY NOTWITHSTANDING."  FN3  THE
INFORMATION WHICH LED THE HOUSE AND SENATE COMMITTEES ON CLAIMS TO
RECOMMEND PASSAGE OF THE ACT FN4  INDICATED THAT CLARK HAD FIRST BEEN
TREATED BY HIS EMPLOYER'S PHYSICIAN WHO OPERATED ON HIS TWELFTH RIB AND
REPORTED THAT AN EXAMINATION OF THE ELEVENTH RIB SHOWED A FIRM UNION AT
THE SITE OF THE FRACTURE OF THAT RIB.  ON THE BASIS OF THIS REPORT THE
DEPUTY COMMISSIONER CONCLUDED THAT CLARK HAD RECOVERED AND TERMINATED
HIS COMPENSATION.  BUT CLARK'S PAIN CONTINUED, AND WITHIN FOUR MONTHS
OF THE DEPUTY COMMISSIONER'S ORDER X-RAYS TAKEN BY OTHER PHYSICIANS
DISCLOSED THAT THE FRACTURE OF THE ELEVENTH RIB WAS UNUNITED, AND IN
ORDER TO GIVE CLARK RELIEF AN OPERATION FUSING THE BONE FRAGMENTS HAD
TO BE PERFORMED.  AFTER THIS THE RIB HEALED, BUT IN MARCH, 1935, THE
PHYSICIAN WHO PERFORMED THE SECOND OPERATION REPORTED THAT CLARK WAS
STILL EXPERIENCING PAIN IN THE REGION OF HIS INJURY.  SINCE THE DEPUTY
COMMISSIONER HAD NO JURISDICTION OVER THE CASE AFTER HE MADE HIS ORDER,
AND SINCE THE TIME FOR JUDICIAL REVIEW EXPIRED PRIOR TO THE TIME OF THE
OPERATION ON THE ELEVENTH RIB, CLARK HAD NO OPPORTUNITY UNDER THE ACT
TO HAVE HIS COMPENSATION READJUSTED.  FN5 

AFTER AN UNSUCCESSFUL ATTEMPT BY APPELLANTS TO ENJOIN A HEARING UNDER
THE PRIVATE ACT,  FN6  A HEARING WAS HAD AND THE DEPUTY COMMISSIONER
ISSUED A NEW AWARD GRANTING CLARK COMPENSATION FOR TOTAL DISABILITY
FROM THE DATE OF THE PRIOR AWARD, JULY 4, 1931, TO JANUARY 5, 1939. 
APPELLANTS BROUGHT TWO ACTIONS AGAINST CLARK AND THE DEPUTY
COMMISSIONER SEEKING INJUNCTIONS AGAINST THE OPERATION OF THE PRIVATE
ACT THROUGH PROHIBITION OF ANY FURTHER STEPS UNDER THE NEW AWARD.  THE
FIRST BILL WAS FRAMED AS AN INDEPENDENT SUIT IN EQUITY; THE SECOND
SOUGHT RELIEF UNDER THE SECTION OF THE COMPENSATION ACT PROVIDING FOR
"INJUNCTION PRECEEDINGS" TO REVIEW AWARDS MADE UNDER THE ACT.  FN7
UNDER THE ACT OF AUGUST 24, 1937,  FN8  A THREE-JUDGE COURT WAS
CONVENED AND THE ATTORNEY GENERAL DULY NOTIFIED.  THE CAUSES HAVING
BEEN TRANSFERRED TO THE ADMIRALTY SIDE OF THE COURT AND CONSOLIDATED
FOR ALL PURPOSES, THE APPELLEES FILED EXCEPTIONS CLAIMING THAT THE
APPELLANTS HAD FAILED TO STATE A CAUSE OF ACTION.  THE COURT UPHELD THE
VALIDITY OF THE SPECIAL ACT AND SUSTAINED THE APPELLEE'S EXCEPTIONS. 
FN9 

BY DIRECT APPEAL THE APPELLANTS CHALLENGE THE DECREE BELOW,
CONTENDING THAT THE PRIVATE ACT VIOLATES THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT.  THE ARGUMENT OF APPELLANTS IS THAT THE ORIGINAL AWARD
WAS AN ADJUDICATION ON WHICH FURTHER REVIEW WAS BARRED PRIOR TO THE
ENACTMENT OF THE PRIVATE ACT; THAT THEREBY RIGHTS AND OBLIGATIONS WERE
FINALLY DETERMINED, THE DEPRIVATION OF WHICH TOOK FROM APPELLANTS A
SUBSTANTIVE IMMUNITY FROM FURTHER CLAIMS OF CLARK AND CREATED IN CLARK
NEW SUBSTANTIVE RIGHTS. 

AN AWARD UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT DETERMINES THE LIABILITY OF EMPLOYER TO EMPLOYEE.  FN10  BUT WE DO
NOT AGREE THAT THE IMMUNITY OBTAINED BY THE LAPSE OF THE TIME FOR
REVIEW IS THE TYPE OF IMMUNITY WHICH PROTECTS ITS BENEFICIARY FROM
RETROACTIVE LEGISLATION AUTHORIZING REVIEW OF THE CLAIM.  THIS PRIVATE
ACT DOES NOT SET ASIDE A JUDGMENT, CREATE A NEW RIGHT OF ACTION OR
DIRECT THE ENTRY OF AN AWARD.  THE HEARING PROVIDED FOR IS SUBJECT TO
THE PROVISIONS OF THE GENERAL ACT FOR LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION.  IT DOES NOT OPERATE TO CREATE NEW OBLIGATIONS
WHERE NONE EXISTED BEFORE.  IT IS AN ACT TO CURE A DEFECT IN
ADMINISTRATION DEVELOPED IN THE HANDLING OF A COMPENSABLE CLAIM.  IF
THE CONTINUING INJURY HAD BEEN KNOWN DURING THE PERIOD OF COMPENSATION,
PAYMENTS OF THE SAME AMOUNT DUE UNDER THE AWARD AUTHORIZED BY THIS ACT
WOULD HAVE BEEN DUE TO THE EMPLOYEE.  FN11  IN SUCH CIRCUMSTANCES WE
SEE NO VIOLATION OF THE DUE PROCESS CLAUSE. 

THE PRINCIPLE UNDERLYING THIS CONCLUSION IS ILLUSTRATED BY GRAHAM &
FOSTER V. GOODCELL.  FN12 THERE A RETROACTIVE ACT OF THE CONGRESS
BARRED RECOVERY BY TAXPAYERS OF PAYMENTS FOR TAXES, PROPERLY OWING BUT
COLLECTION OF WHICH WAS BARRED BY LIMITATION.  AT THE TIME OF THE
ENACTMENT OF THE CONTROVERTED STATUTE, THE TAXPAYER HAD A RIGHT TO
RECOVER THE PAYMENT.  LIMITATION HAD BEEN PERMITTED TO RUN IN FAVOR OF
THE TAXPAYER UNDER A MISTAKE OF LAW.  THIS COURT UPHELD THE LEGISLATION
AS CONSISTENT WITH DUE PROCESS ON THE GROUND THAT IT WAS A CURATIVE ACT
TO REMEDY MISTAKES IN ADMINISTRATION WHERE THE REMEDY "CAN BE APPLIED
WITHOUT INJUSTICE."  FN13 

RIGHTS OBTAINED BY AN ATTACHING CREDITOR WERE SUBJECTED TO THE EQUITY
OF A PRIOR MORTGAGE, INVALID BECAUSE IMPROPERLY RECORDED, BY A
SUBSEQUENT ACT IN MCFADDIN V. EVANS-SNIDER-BUEL COMPANY.  FN14  THIS
COURT REFUSED TO ACCEPT THE ARGUMENT THAT SUCH A RETROACTIVE STATUTE
DEPRIVED THE HOLDER OF THE ATTACHMENT LIEN, WITH NOTICE OF THE PRIOR
EQUITY, OF PROPERTY WITHOUT DUE PROCESS.  FN15 EVEN MORE RECENTLY IN
CARPENTER V. WABASH RAILWAY COMPANY,  FN16  WE UPHELD AS VALID AND
APPLICABLE AN ACT GRANTING PRIORITY TO RAILROAD EMPLOYEES FOR DAMAGES
FOR PERSONAL INJURIES OVER OTHER CLAIMANTS IN EQUITY RECEIVERSHIPS. 
THE ACT THERE IN QUESTION WAS PASSED WHILE CERTIORARI WAS PENDING IN
THIS COURT FROM A CONTRARY DECISION UPON PRIORITY WHICH WE ASSUMED TO
BE CORRECT.  THIS RULING RESULTED FROM THE "SUPERIOR EQUITIES" OF THE
EMPLOYEES.  FN17 

IT IS UNIMPORTANT WHETHER THE CLAIM PERSISTED AFTER THE BAR  FN18  OR
ENDED WITH THE RUNNING OF LIMITATION.  FN19  TO CURE A FAULT OF
ADMINISTRATION CONGRESS MAY VALIDLY ENACT THIS ACT.    IT IS URGED BY
APPELLANT, HOWEVER, THAT THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT SHOULD BE READ INTO THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  IF SO READ, IT IS ARGUED, THIS PRIVATE ACT VIOLATES THE
RULE OF EQUAL PROTECTION.  THIS CONCLUSION, HOWEVER, WE FIND
UNTENABLE.  PRIVATE ACTS, AS SUCH, ARE NOT FORBIDDEN BY THE
CONSTITUTION.  THAT INSTRUMENT CONTAINS NO PROVISION AGAINST PRIVATE
ACTS ENACTED BY THE FEDERAL GOVERNMENT EXCEPT FOR A PROHIBITION OF
BILLS OF ATTAINDER AND GRANTS OF NOBILITY.  FN20  IT TOOK AN ACT OF
CONGRESS TO OUTLAW THEM IN THE TERRITORIES,  FN21  EVEN THOUGH THE
FIFTH AMENDMENT IS APPLICABLE TO THE TERRITORIES.  FN22  THE STATES
HAVE DIFFERENT SITUATIONS AS TO THE VALIDITY OF PRIVATE ACTS.  FN23
THE CONSTITUTIONS OF MANY OF THE STATES, UNLIKE THE FEDERAL, FORBID
PRIVATE LEGISLATION WITHOUT REGARD TO THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES.  FN24 

NOR CAN WE SAY THAT THIS LEGISLATION IS AN EXCURSION OF THE CONGRESS
INTO THE JUDICIAL FUNCTION.  FN25  AFFIRMED. 

FN1  33 U.S.C. SECS. 901-50. 

FN2  44 STAT. 1436, SEC. 21; 33 U.S.C., SEC. 921. 

FN3  49 STAT., PT. 2, P. 2244.  THE ACT IN FULL READS: 

"THAT IN THE CASE OF JOHN T. CLARK, OF SEATTLE, WASHINGTON, WHOSE
DISABILITY COMPENSATION UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS'
COMPENSATION ACT OF MARCH 4, 1927, WAS TERMINATED AS OF JULY 5, 1931,
BY A COMPENSATION ORDER FILED AUGUST 26, 1931, THE EMPLOYEES'
COMPENSATION COMMISSION BE, AND IT IS HEREBY, AUTHORIZED AND DIRECTED
TO REVIEW SUCH ORDER IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN
RESPECT OF SUCH CLAIMS IN SECTION 19 OF SAID ACT, AND IN ACCORDANCE
WITH SUCH SECTION TO ISSUE A NEW COMPENSATION ORDER WHICH MAY
TERMINATE, CONTINUE, INCREASE, OR DECREASE SUCH COMPENSATION, THE
PROVISIONS OF SECTIONS 21 AND 22 OF THE SAID ACT, AS AMENDED, TO THE
CONTRARY NOTWITHSTANDING:  PROVIDED, THAT SUCH NEW ORDER SHALL NOT
AFFECT ANY COMPENSATION PAID UNDER AUTHORITY OF THE PRIOR ORDER." 

FN4  S. REP. NO. 1645, 74TH CONG., 2D SESS.; H.R. REP. NO. 1892, 74TH
CONG., 1ST SESS.  THE INFORMATION BEFORE THE COMMITTEES IS ATTACHED TO
BOTH REPORTS AND INCLUDES STATEMENTS BY THE DOCTORS WHO EXAMINED, X
RAYED, AND OPERATED ON CLARK AFTER THE DEPUTY COMMISSIONER'S ORDER;
LETTERS FROM THE COMPENSATION COMMISSION DISCUSSING THE HISTORY OF THE
CASE; AND A LETTER FROM THE DEPUTY COMMISSIONER TO THE SPONSOR OF THE
ACT, CONGRESSMAN ZIONCHECK, RELATING THE DEPUTY COMMISSIONER'S
PARTICIPATION IN THE CASE. 

FN5  SEE NOTE 2 SUPRA.  SECTION 22 OF THE COMPENSATION ACT (33 U.S.C.
SEC. 922), ALLOWING THE DEPUTY COMMISSIONER TO ISSUE AN AMENDED AWARD
"ON THE GROUND OF A CHANGE IN CONDITIONS OR BECAUSE OF A MISTAKE IN A
DETERMINATION OF FACT BY THE DEPUTY COMMISSIONER," WAS NOT AVAILABLE TO
CLARK BECAUSE AT THE TIME OF HIS DISCOVERY OF HIS CONTINUED DISABILITY
THE DEPUTY COMMISSIONER COULD ONLY TAKE SUCH ACTION "DURING THE TERM OF
AN AWARD."  44 STAT. 1437.  ON MAY 26, 1934, THE SECTION WAS AMENDED
(48 STAT. 807) TO ALLOW NEW AWARDS BECAUSE OF CHANGED CONDITIONS TO BE
MADE "AT ANY TIME PRIOR TO ONE YEAR AFTER THE DATE OF THE LAST PAYMENT
OF COMPENSATION."  HAD THIS BEEN IN FORCE AT THE TIME OF CLARK'S
INJURY, PRESUMABLY IT WOULD HAVE AFFORDED HIM A REMEDY FOR A NEW AWARD,
BUT WHEN IT WAS PASSED MORE THAN A YEAR HAD EXPIRED FROM THE LAST
PAYMENT OF COMPENSATION. 

FN6  95 F.2D 203. 

FN7  44 STAT. 1436, SEC. 21; 33 U.S.C. SEC. 921. 

FN8 50 STAT. 752, SEC. 3; 28 U.S.C. SEC. 380A. 

FN9  PARAMINO LUMBER CO. V. MARSHALL, 27 F.SUPP.  823; DISCUSSED IN
COMMENT, THE CONSTITUTIONALITY OF PRIVATE ACTS OF CONGRESS (1940) 49
YALE L.J. 712. 

FN10  CROWELL V. BENSON, 285 U.S. 22. 

FN11  SEE NOTE 5, SUPRA. 

FN12  282 U.S. 409. 

FN13  SEE THE CASES CITED TO SUPPORT THE CONCLUSION:  FORBES BOAT
LINE V. BOARD OF COMM'RS, 258 U.S. 338; UNITED STATES V. HEINSZEN &
CO., 206 U.S. 370; TIACO V. FORBES, 228 U.S. 549; SEE ALSO SWAYNE &
HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 302. 

FN14  185 U.S. 505, 511. 

FN15  SEE INDEPENDENT PIER CO. V. NORTON, 12 F.SUPP.  974, WHERE THE
AMENDMENT OF MAY 26, 1934, 33 U.S.C. SEC. 922, CONSTRUED AS EXTENDING
THE TIME FOR REVIEW OF AN AWARD UNDER LONGSHOREMEN'S AND HARBOR
WORKERS' COMPENSATION ACT FOR ONE YEAR RETROACTIVELY AS TO A FINAL
AWARD, WAS HELD WITHIN DUE PROCESS.  SEE ALSO PENNSYLVANIA V. WHEELING
& BELMONT BRIDGE CO., 18 HOW.  421. 

FN16  ANTE, P. 23. 

FN17  CF. DANFORTH V. GROTON WATER CO., 178 MASS. 472; 59 N.E. 1033;
DUNBAR V. BOSTON & PROVIDENCE RAILROAD, 181 MASS. 383, 386; 63 N.E.
916; ROBINSON V. ROBINS DRY DOCK & REPAIR CO., 238 N.Y. 271; 144 N.E.
579.  BUT SEE FOR CRITICISM WOODWARD V. CENTRAL VERMONT RY. CO., 180
MASS. 599, 603; 62 N.E. 1051; ZICCARDI'S CASE, 287 MASS. 588, 591; 192
N.E. 29; CASIERI'S CASE, 286 MASS. 50; 190 N.E. 118. 

FN18  CAMPBELL V. HOLT, 115 U.S. 620. 

FN19  WILLIAM DANZER CO. V. GULF & S.I.R. CO., 268 U.S. 633. 

FN20  ART. I, SEC. 9, CLS. 3 AND 8. 

FN21  24 STAT. 170; CF. MAYNARD V. HILL, 125 U.S. 190. 

FN22  FARRINGTON V. TOKUSHIGE, 273 U.S. 284, 299. 

FN23  STATE COURTS HAVE DEALT WITH THIS QUESTION AS A MATTER OF THE
NECESSITY OF EQUALITY IN DUE PROCESS BEFORE AND AFTER THE PASSAGE OF
THE FOURTEENTH AMENDMENT.  HOLDEN V. JAMES, 11 MASS. 396; STATE V.
INDUSTRIAL ACCIDENT BOARD, 94 MONT. 386; 23 P.2D 253; MATTER OF DECKER
V. POUVAILSMITH CORP., 252 N.Y. 1, 7; 168 N.E. 442; ROLES SHINGLE CO.
V. BERGERSON, 142 ORE.  131; 19 P.2D 94; REISER V. WILLIAM TELL SAVING
FUND ASSN., 39 PA. 137, 146; STATE BANK V. COOPER, 2 YERG.  (TENN.) 
599, 605, 606; TATE'S EXECUTORS V. BELL, 4 YERG.  (TENN.)  202;
FISHER'S NEGROES V. DABBS, 6 YERG.  (TENN.)  119; CF. 2 COOLEY,
CONSTITUTIONAL LIMITATIONS (8TH ED.)  809. 

FN24  THERE ARE RESTRICTIONS AGAINST THE ENACTMENT OF SPECIAL
LEGISLATION IN THE CONSTITUTIONS OF ALL THE STATES EXCEPT CONNECTICUT,
MASSACHUSETTS, NEW HAMPSHIRE AND VERMONT.  THE FOLLOWING ARE TYPICAL
PROVISIONS:  (1) "THE LEGISLATURE SHALL NOT PASS LOCAL OR SPECIAL LAWS
CONCERNING ANY OF THE FOLLOWING ENUMERATED CASES,  ...  "; FOLLOWED BY
AN ENUMERATION OF PROSCRIBED SUBJECTS WHICH IS CONCLUDED WITH THE
CATCHALL, "WHERE A GENERAL LAW CAN BE MADE APPLICABLE."  SEE CAL.
CONST., ART. IV, SEC. 25; KY. CONST., SEC. 59.  (2)  "ALL LAWS, OF A
GENERAL NATURE, SHALL HAVE A UNIFORM OPERATION THROUGHOUT THE STATE. 
...  "  SEE OHIO CONST., ART. II, SEC. 26.  (3) "NO SPECIAL, PRIVATE,
OR LOCAL LAW  ...  SHALL BE ENACTED IN ANY CASE WHICH IS PROVIDED FOR
BY A GENERAL LAW.  ...  "  SEE ALA. CONST., ART. IV, SEC. 105.  (4)
"THE LEGISLATURE SHALL HAVE NO POWER TO SUSPEND ANY GENERAL LAW FOR THE
BENEFIT OF ANY PARTICULAR INDIVIDUAL.  ...  "  SEE TENN. CONST., ART.
XI, SEC. 8.  OFTEN THERE WILL BE MORE THAN ONE PROVISION IN A
CONSTITUTION.  THE VARIOUS PROVISIONS AND DECISIONS UNDER THEM ARE
DISCUSSED IN CLOE AND MARCUS, SPECIAL AND LOCAL LEGISLATION (1936) 24
KY. L.J. 351, AND BINNEY, RESTRICTIONS UPON LOCAL AND SPECIAL
LEGISLATION, P. 127, ET SEQ. 

FN25  JOHANNESSEN V. UNITED STATES, 225 U.S. 227, 241. 

THE STATE CASES CITED BY APPELLANTS UPON THE QUESTION OF THE INVASION
OF JUDICIAL AUTHORITY INVOLVE STATUTES AFFECTING JUDICIAL JUDGMENTS
RATHER THAN ADMINISTRATIVE ORDERS AND ARE THEREFORE INAPPLICABLE: 

SANDERS V. CABANISS, 43 ALA. 173; TRUSTEES FUND V. BAILEY, 10 FLA.
238; DORSEY V. DORSEY, 37 MD. 64; STATE EX REL. FLINT V. FLINT; 61
MINN. 539; 63 N.W. 1113; PETITION OF SIBLERUD, 148 MINN. 347; 182 N.W.
168; MERRILL V. SHERBURNE, 1 N.H. 199; MATTER OF GREENE, 166 N.Y. 485;
60 N.E. 183; DE CHASTELLUX V. FAIRCHILD, 15 PA. 18; TAYLOR & CO. V.
PLACE, 4 R.I. 324; IN RE HANDLEY'S ESTATE, 15 UTAH 212; 49 P. 829;
RATCLIFFE V. ANDERSON, 31 GRATT.  105(VA.); MARPOLE V. CATHER'S ADM'R,
78 VA. 239; DAVIS V. MENASHA, 21 WIS. 491. 

COMPARE JONES V. MEHAN, 175 U.S. 1; PENNSYLVANIA V. WHEELING &
BELMONT BRIDGE CO., 18 HOW.  421; POCONO PINES ASSEMBLY HOTELS CO. V.
UNITED STATES, 73 CT. CLS. 447. 

MR. JUSTICE MCREYNOLDS DISSENTS. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















DICKINSON CO. V. COWAN, 309 U.S. 382 


NO. 386.  ARGUED FEBRUARY 6, 1940.  - DECIDED MARCH 11, 1940.  - 104
F.2D 771, AFFIRMED. 


1.  AN APPEAL TAKEN AFTER THE EFFECTIVE DATE OF THE "CHANDLER ACT"
(SEPTEMBER 22, 1938), FROM AN ORDER GRANTING AN ALLOWANCE FOR SERVICES,
PREVIOUSLY ENTERED IN A REORGANIZATION PROCEEDING UNDER SEC. 77B OF THE
BANKRUPTCY ACT, IS GOVERNED BY THE CHANDLER ACT.  P. 383. 

2.  SECTION 276(C)(2) OF THE CHANDLER ACT WHICH PROVIDES THAT THE
PROVISIONS OF CH. X OF THAT ACT (THE SUCCESSOR TO SEC. 77B OF THE
BANKRUPTCY ACT), SHALL APPLY TO PENDING PROCEEDINGS "TO THE EXTENT THAT
THE JUDGE SHALL DEEM THEIR APPLICATION PRACTICABLE" RELATES SOLELY TO
PROCEEDINGS IN THE DISTRICT COURT AND HAS NO APPLICATION TO APPELLATE
PROCEEDINGS.  P. 383. 

3.  APPEALS FROM ORDERS MAKING OR REFUSING TO MAKE ALLOWANCES OF
COMPENSATION OR REIMBURSEMENT UNDER CH. X OF THE CHANDLER ACT MAY BE
HAD ONLY AT THE DISCRETION OF THE CIRCUIT COURT OF APPEALS.  P. 384. 

DICKINSON INDUSTRIAL SITE, INC. V. COWAN ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 308 U.S. 543, TO REVIEW A DECISION DENYING A MOTION TO
DISMISS AN APPEAL FROM AN ORDER OF THE DISTRICT COURT GRANTING AN
ALLOWANCE FOR SERVICES IN A REORGANIZATION UNDER THE BANKRUPTCY ACT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

A PLAN OF REORGANIZATION OF PETITIONER UNDER SEC. 77B OF THE
BANKRUPTCY ACT (48 STAT. 912) WAS CONFIRMED ON FEBRUARY 23, 1938. 
RESPONDENTS ARE MEMBERS OF A BONDHOLDERS' COMMITTEE WHO SOUGHT AN
ALLOWANCE IN THOSE PROCEEDINGS.  ON OCTOBER 26, 1938, THEY WERE AWARDED
$2,000 FOR SERVICES RENDERED, $20,000 HAVING BEEN ASKED.  ON NOVEMBER
25, 1938, THEY PETITIONED THE CIRCUIT COURT OF APPEALS FOR LEAVE TO
APPEAL FROM THAT ORDER.  THE APPEAL WAS ALLOWED.  PETITIONER MOVED TO
DISMISS THE APPEAL ON THE GROUND THAT THE COURT OF APPEALS HAD NO
JURISDICTION TO ALLOW IT, THE ARGUMENT BEING THAT RESPONDENTS HAD AN
APPEAL AS OF RIGHT WHICH COULD ONLY BE TAKEN BY FILING A NOTICE OF
APPEAL IN THE DISTRICT COURT.  THE CIRCUIT COURT OF APPEALS DENIED
PETITIONER'S MOTION TO DISMISS AND MODIFIED THE ORDER BY INCREASING THE
ALLOWANCE TO $10,000.  104 F.2D 771.  WE GRANTED CERTIORARI BECAUSE OF
A CONFLICT OF THAT RULING WITH LONDON V. O'DOUGHERTY, 102 F.2D 524,
WHICH HELD THAT APPEALS FROM COMPENSATION ORDERS INVOLVING $500 OR MORE
COULD BE HAD AS A MATTER OF RIGHT UNDER THE CHANDLER ACT (52 STAT.
840). 

FIRST.  THE CIRCUIT COURT OF APPEALS HELD THAT THE PROVISIONS OF THE
CHANDLER ACT, WHICH BECAME EFFECTIVE ON SEPTEMBER 22, 1938(SEC.  7),
WERE APPLICABLE TO THIS APPEAL.  WE THINK THAT FOLLOWS FROM SEC. 6(B)
OF THE ACT WHICH STATES THAT "EXCEPT AS OTHERWISE PROVIDED IN THIS
AMENDATORY ACT, THE PROVISIONS OF THIS AMENDATORY ACT SHALL GOVERN
PROCEEDINGS SO FAR AS PRACTICABLE IN CASES PENDING WHEN IT TAKES
EFFECT; ...  "  WHERE, AS HERE, APPEAL IS TAKEN AFTER THE EFFECTIVE
DATE OF THE ACT, IT IS CLEARLY "PRACTICABLE" TO APPLY THE NEW APPEAL
PROVISIONS.  CONTRARY TO RESPONDENTS' CONTENTION, SEC. 276(C)(2) IS NOT
APPLICABLE TO APPEALS.  IT PROVIDES THAT THE PROVISIONS OF CH. X (THE
SUCCESSOR TO SEC. 77B) SHALL APPLY TO PENDING PROCEEDINGS "TO THE
EXTENT THAT THE JUDGE SHALL DEEM THEIR APPLICATION PRACTICABLE" WHERE
THE PETITION IN SUCH PROCEEDINGS WAS APPROVED MORE THAN THREE MONTHS
BEFORE THE EFFECTIVE DATE OF THE AMENDATORY ACT.  BUT THAT RELATES
SOLELY TO PROCEEDINGS IN THE DISTRICT COURT.  THE "JUDGE" REFERRED TO
IN THAT SECTION MEANS A "JUDGE OF A COURT OF BANKRUPTCY."  SEC. 1(20). 
SUCH COURT DOES NOT INCLUDE THE CIRCUIT COURT OF APPEALS.  SEC. 1(10). 
HENCE THE APPLICATION OF THE NEW APPEAL PROVISIONS TO THIS TYPE OF CASE
IS NOT DEPENDENT ON A DETERMINATION OF PRACTICABILITY BY THE DISTRICT
JUDGE UNDER SEC. 276(C)(2). 

SECOND.  PETITIONER'S ARGUMENT THAT THE APPEAL IN THIS CASE COULD BE
TAKEN AS A MATTER OF RIGHT REQUIRES AN ANALYSIS OF SEC. 24 AND SEC. 250
OF THE CHANDLER ACT.  SEC. 24 PROVIDES IN PART: 

"A.  THE CIRCUIT COURTS OF APPEALS OF THE UNITED STATES AND THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, IN
VACATION, IN CHAMBERS, AND DURING THEIR RESPECTIVE TERMS, AS NOW OR AS
THEY MAY BE HEREAFTER HELD, ARE HEREBY INVESTED WITH APPELLATE
JURISDICTION FROM THE SEVERAL COURTS OF BANKRUPTCY IN THEIR RESPECTIVE
JURISDICTIONS IN PROCEEDINGS IN BANKRUPTCY, EITHER INTERLOCUTORY OR
FINAL, AND IN CONTROVERSIES ARISING IN PROCEEDINGS IN BANKRUPTCY, TO
REVIEW, AFFIRM, REVISE, OR REVERSE, BOTH IN MATTERS OF LAW AND IN
MATTERS OF FACT:  PROVIDED, HOWEVER, THAT THE JURISDICTION UPON APPEAL
FROM A JUDGMENT ON A VERDICT RENDERED BY A JURY, SHALL EXTEND TO
MATTERS OF LAW ONLY:  PROVIDED FURTHER, THAT WHEN ANY ORDER, DECREE, OR
JUDGMENT INVOLVES LESS THAN $500, AN APPEAL THEREFROM MAY BE TAKEN ONLY
UPON ALLOWANCE OF THE APPELLATE COURT. 

"B.  SUCH APPELLATE JURISDICTION SHALL BE EXERCISED BY APPEAL AND IN
THE FORM AND MANNER OF AN APPEAL." 

SEC. 250 PROVIDES: 

"APPEALS MAY BE TAKEN IN MATTERS OF LAW OR FACT FROM ORDERS MAKING OR
REFUSING TO MAKE ALLOWANCES OF COMPENSATION OR REIMBURSEMENT, AND MAY,
IN THE MANNER AND WITHIN THE TIME PROVIDED FOR APPEALS BY THIS ACT, BE
TAKEN TO AND ALLOWED BY THE CIRCUIT COURT OF APPEALS INDEPENDENTLY OF
OTHER APPEALS IN THE PROCEEDING, AND SHALL BE SUMMARILY HEARD UPON THE
ORIGINAL PAPERS." 

PETITIONER CONTENDS THAT CONGRESS BY SEC. 24 CREATED A SINGLE TEST -
THE AMOUNT OF THE ORDER APPEALED FROM - FOR DETERMINING WHETHER LEAVE
TO APPEAL WAS NECESSARY AND THAT THE WORDS "ALLOWED BY" IN SEC. 250
REFER TO APPEALS FROM ORDERS OF ALLOWANCES OF LESS THAN $500. 

OUR VIEW, HOWEVER, IS THAT APPEALS FROM ALL ORDERS MAKING OR REFUSING
TO MAKE ALLOWANCES OF COMPENSATION OR REIMBURSEMENT UNDER CH. X OF THE
CHANDLER ACT MAY BE HAD ONLY AT THE DISCRETION OF THE CIRCUIT COURT OF
APPEALS. 

UNDER SEC. 77B (C)(9) IT WAS PROVIDED THAT "APPEALS FROM ORDERS
FIXING SUCH ALLOWANCES MAY BE TAKEN TO THE CIRCUIT COURT OF APPEALS
INDEPENDENTLY OF OTHER APPEALS IN THE PROCEEDING AND SHALL BE HEARD
SUMMARILY."  AND IT WAS HELD BY THIS COURT IN SHULMAN V. WILSON
SHERIDAN HOTEL CO., 301 U.S. 172, THAT THOSE APPEALS COULD NOT BE HAD
AS A MATTER OF RIGHT BUT ONLY IN THE DISCRETION OF THE APPELLATE COURT
AS PROVIDED IN FORMER SEC. 24(B).  THAT WAS THE WAY THE MATTER STOOD
WHEN SEC. 250 WAS DRAFTED.  THE HISTORY OF THAT SECTION  FN1  SHOWS
THAT IT WAS DERIVED FROM SEC. 77B (C)(9).  BUT, SIGNIFICANTLY, THE
WORDS "AND ALLOWED BY" WERE ADDED - WORDS NOT PRESENT IN SEC. 77B
(C)(9).  THE RESULT PLAINLY WAS (1) TO CARRY OVER INTO THE NEW ACT THE
RULE OF SHULMAN V. WILSON-SHERIDAN HOTEL CO., SUPRA, AND (2) TO SET
APART IN A SEPARATE SECTION THE PROVISIONS FOR APPEALS FROM THAT TYPE
OF ORDER SO AS TO MAKE THOSE APPEALS NO LONGER DEPENDENT ON SEC. 24,
WHICH HAD BECOME A STORM CENTER FOR THE REVISIONISTS.  FN2  IF THE
HOUSE DID NOT INTEND THE LATTER RESULT, THEN THE ADDITION OF THE WORDS
"AND ALLOWED BY" WERE WHOLLY NEEDLESS, AS UNDER THE HOUSE REVISION OF
SEC. 24 APPEALS FROM COMPENSATION ORDERS WOULD HAVE BEEN DISCRETIONARY
WITH THE APPELLATE COURT.  FN3 

HENCE UNDER THE HOUSE BILL AS IT REACHED THE SENATE, IT SEEMS CLEAR
THAT NO SUCH APPEALS COULD BE HAD AS A MATTER OF RIGHT.  IN THE SENATE
THE PRESENT SEC. 24 WAS SUBSTITUTED FOR THE HOUSE PROVISION; BUT THE
PRESENT SEC. 250 WAS NOT ALTERED IN ANY RESPECT MATERIAL HERE.  IT IS
CLEAR FROM THE SENATE HEARINGS AND COMMITTEE REPORT THAT THE SENATE WAS
INTERESTED ONLY IN THE ELIMINATION FROM SEC. 24 OF THE OLD DISTINCTIONS
BETWEEN "CONTROVERSIES ARISING IN BANKRUPTCY PROCEEDINGS" AND
"PROCEEDINGS" IN BANKRUPTCY.  FN4  THERE WAS NOT THE SLIGHTEST
INTIMATION OF ANY DISSATISFACTION WITH THE RULE OF SHULMAN V. WILSON
SHERIDAN HOTEL CO., SUPRA, OR WITH SEC. 250 AS IT PASSED THE HOUSE.  TO
BE SURE, THE SENATE COMMITTEE REPORT IS SOMEWHAT AMBIGUOUS.  FN5  BUT
IT IS PERHAPS SIGNIFICANT THAT THAT REPORT IN COMMENTING ON SEC. 24
STATED NOT THAT IT "ABOLISHED" BUT THAT IT "PRACTICALLY ABOLISHED" THE
DISTINCTION BETWEEN APPEALS AS OF RIGHT AND APPEALS BY LEAVE OF THE
APPELLATE COURTS. 

MORE IMPORTANT, HOWEVER, IS THE MATTER OF STATUTORY CONSTRUCTION.  TO
HOLD THAT AN APPEAL FROM A COMPENSATION ORDER IS GOVERNED BY SEC. 24
THE WORDS "TAKEN TO AND ALLOWED BY" IN SEC. 250 MUST BE READ "TAKEN TO
OR ALLOWED BY."  ONLY THEN CAN APPEALS FROM COMPENSATION ORDERS
INVOLVING LESS THAN $500 BE GOVERNED BY "ALLOWED BY" AND APPEALS FROM
ALL OTHER SUCH ORDERS BE GOVERNED BY "TAKEN TO."  IN THE FACE OF THE
FOREGOING HISTORY WE DO NOT BELIEVE WE ARE JUSTIFIED IN SUBSTITUTING
"OR" FOR "AND."  THE INAPPROPRIATENESS OF IT IS SOMEWHAT EMPHASIZED BY
THE HISTORY OF "TAKEN TO" WHICH IN SHULMAN V. WILSON-SHERIDAN HOTEL
CO., SUPRA, WAS HELD NOT TO PERMIT AN APPEAL AS OF RIGHT.  IT IS
FURTHER EMPHASIZED BY CONSIDERATIONS OF POLICY. 

THE HISTORY OF FEES IN CORPORATE REORGANIZATIONS CONTAINS MANY SORDID
CHAPTERS.  ONE OF THE PURPOSES OF SEC. 77B WAS TO PLACE THOSE FEES
UNDER MORE EFFECTIVE CONTROL.  FN6  BUTTRESSING THAT CONTROL WAS SEC.
77B (C)(9) WHICH, TOGETHER WITH FORMER SEC. 24(B), MADE APPEALS FROM
COMPENSATION ORDERS DISCRETIONARY WITH THE APPELLATE COURT.  WE SHOULD
NOT DEPART FROM THAT POLICY IN ABSENCE OF A CLEAR EXPRESSION FROM
CONGRESS OF ITS DESIRE FOR A CHANGE.  FEE CLAIMANTS ARE EITHER OFFICERS
OF THE COURT OR FIDUCIARIES,  FN7  SUCH AS MEMBERS OF COMMITTEES, WHOSE
CLAIMS FOR ALLOWANCE FROM THE ESTATE ARE BASED ONLY ON SERVICE RENDERED
TO AND BENEFITS RECEIVED BY THE ESTATE.  FN8 ALLOWANCE OR DISALLOWANCE
INVOLVES AN EXERCISE OF SOUND DISCRETION BY THE COURT BASED ON THAT
STATUTORY STANDARD.  UNLIKE APPEALS FROM OTHER ORDERS, APPEALS FROM
COMPENSATION ORDERS THEREFORE NORMALLY INVOLVE ONLY ONE QUESTION OF LAW
- ABUSE OF DISCRETION.  THESE FACTORS NOT ONLY EMPHASIZE THE
APPROPRIATENESS OF THE SEPARATE TREATMENT BY CONGRESS OF APPEALS FROM
COMPENSATION ORDERS; THEY REINFORCE THE INTERPRETATION OF SEC. 250
WHICH RESTRICTS THESE APPEALS.  FOR CERTAINLY IT SEEMS SOUND POLICY TO
REQUIRE FIDUCIARIES TO MAKE OUT A PRIMA FACIE CASE OF INEQUITABLE
TREATMENT IN ORDER TO BE HEARD BEFORE THE APPELLATE COURT.  TO ALLOW
THESE APPEALS AS A MATTER OF RIGHT IS TO ENCOURAGE AN UNSEEMLY PARADE
TO THE APPELLATE COURTS AND TO ADD TO THE TIME AND EXPENSE OF
ADMINISTRATION.  WE WILL NOT RESOLVE ANY AMBIGUITIES IN FAVOR OF THAT
ALTERNATIVE. 

WHETHER OR NOT THE CIRCUIT COURT OF APPEALS ERRED IN MODIFYING THE
ORDER SO AS TO GRANT RESPONDENTS AN INCREASED ALLOWANCE WAS NOT RAISED
IN THE PETITION FOR CERTIORARI AND HENCE HAS NOT BEEN CONSIDERED HERE. 
HELIS V. WARD, 308 U.S. 365.  AFFIRMED. 

FN1  S. REP. NO. 1916, 75TH CONG., 3RD SESS., P. 38. 

FN2  H.R. HEARINGS ON H.R. 6439(H.R. 8046), 75TH CONG., 1ST SESS.,
PP. 79-80, 213-218, 222-223, 240-241, 405-406; S. HEARINGS ON H.R.
8046, 75TH CONG., 2ND SESS., PP. 53-54, 60, 103-108.  AND SEE H.R. REP.
NO. 1409, 75TH CONG., 1ST SESS., P. 22. 

FN3  THIS IS MADE CLEAR BY COMPARISON OF SEC. 250 WITH SEC. 24 AS
THEY PASSED THE HOUSE. 

SEC. 250 THEN READ: 

"APPEALS IN MATTERS OF LAW OR FACT FROM ORDERS MAKING OR REFUSING TO
MAKE ALLOWANCES OF COMPENSATION OR REIMBURSEMENT MAY, IN THE MANNER AND
WITHIN THE TIME PROVIDED FOR APPEALS BY THIS ACT, BE TAKEN TO AND
ALLOWED BY THE CIRCUIT COURT OF APPEALS INDEPENDENTLY OF OTHER APPEALS
IN THE PROCEEDING, AND SHALL BE SUMMARILY HEARD UPON THE ORIGINAL
PAPERS." 

SEC. 24 A AND B THEN READ: 

"A.  THE CIRCUIT COURTS OF APPEALS OF THE UNITED STATES AND THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, IN
VACATION, IN CHAMBERS, AND DURING THEIR RESPECTIVE TERMS, AS NOW OR AS
THEY MAY BE HEREAFTER HELD, ARE HEREBY INVESTED WITH APPELLATE
JURISDICTION FROM THE SEVERAL COURTS OF BANKRUPTCY IN THEIR RESPECTIVE
JURISDICTIONS (1) OF CONTROVERSIES ARISING IN THE COURSE OF PROCEEDINGS
UNDER THIS ACT IN THE SAME MANNER AND TO THE SAME EXTENT AS IN SUITS AT
LAW OR IN EQUITY; (2) TO SUPERINTEND AND REVISE, IN MATTER OF LAW AND
FACT, THE PROCEEDINGS OF SUCH INFERIOR COURTS OF BANKRUPTCY IN THE
FOLLOWING CASES:  (A) A JUDGMENT ADJUDGING OR REFUSING TO ADJUDGE A
PERSON A BANKRUPT; (B) A JUDGMENT APPROVING OR DISMISSING A PETITION
FILED BY OR AGAINST A DEBTOR UNDER CHAPTER X OF THIS ACT; (C) A
JUDGMENT GRANTING OR DENYING A DISCHARGE; (D) A JUDGMENT CONFIRMING OR
REFUSING TO CONFIRM AN ARRANGEMENT OR PLAN; (E) A JUDGMENT ALLOWING OR
REJECTING A DEBT, CLAIM, OR INTEREST OF $500 OR OVER; AND (F) A
JUDGMENT ALLOWING OR DISMISSING AN APPLICATION FOR AN ORDER UPON A
BANKRUPT OR OTHER PERSON TO DELIVER OR TURN OVER PROPERTY TO THE
MARSHAL, OR TO THE RECEIVER OR TRUSTEE OF THE ESTATE; AND (3) TO
SUPERINTENDENT AND REVISE, IN MATTER OF LAW ONLY, THE PROCEEDINGS IN
ALL OTHER CASES OF SUCH INFERIOR COURTS OF BANKRUPTCY. 

"B.  SUCH APPELLATE JURISDICTION SHALL BE EXERCISED BY APPEAL AND IN
THE FORM AND MANNER OF AN APPEAL:  PROVIDED, THAT IN THE CASES
SPECIFIED IN SUBDIVISION A (3) OF THIS SECTION, SUCH APPEALS SHALL BE
ALLOWED IN THE DISCRETION OF THE APPELLATE COURT:  AND PROVIDED
FURTHER, THAT WHERE, WITHIN THE TIME LIMITED FOR TAKING APPEALS, AN
APPEAL HAS BEEN TAKEN AS OF RIGHT INSTEAD OF BY ALLOWANCE OF THE
APPELLATE COURT, THE APPELLATE COURT MAY IN ITS DISCRETION ALLOW SUCH
APPEAL AT ANY TIME BEFORE FINAL DETERMINATION WITH THE SAME EFFECT AS
IF IT HAD BEEN DULY ALLOWED, WHEN TAKEN, AND WHERE, WITHIN THE TIME
LIMITED FOR TAKING APPEALS, AN APPEAL HAS BEEN TAKEN BY ALLOWANCE OF
THE APPELLATE COURT INSTEAD OF AS OF RIGHT, THE APPELLATE COURT MAY IN
ITS DISCRETION ENTERTAIN AND DETERMINE SUCH APPEAL WITH THE SAME EFFECT
AS IF IT HAD BEEN DULY TAKEN AS OF RIGHT." 

FN4  S. REP., SUPRA NOTE 1, P. 4, COMMENTED AS FOLLOWS ON THE PRESENT
SEC. 24: 

"THE HOUSE BILL MAKES CERTAIN AMENDMENTS IN THE SECTIONS OF THE ACT
(24-25) RELATIVE TO APPEALS, BUT PRESERVES THE EXISTING DISTINCTION
BETWEEN APPEALS AS OF RIGHT AND APPEALS BY LEAVE OF THE APPELLATE
COURTS.  THE AMENDMENT PRESENTED BY THE COMMITTEE PRACTICALLY ABOLISHES
THIS DISTINCTION.  UNDER IT, APPEALS MAY BE MADE AS OF RIGHT IN ALL
CASES INVOLVING $500 OR MORE.  IN CONTROVERSIES OF LESS THAN THIS
AMOUNT, APPEALS MAY BE TAKEN ONLY UPON ALLOWANCE BY THE APPELLATE
COURT.  THE JURISDICTION OF THE APPELLATE COURT WILL EXTEND BOTH TO
MATTERS OF LAW AND OF FACT, EXCEPT THAT IN AN APPEAL FROM A JUDGMENT ON
A VERDICT RENDERED BY A JURY THE JURISDICTION WILL EXTEND TO MATTERS OF
LAW ONLY.  THE REMOVAL OF THE TROUBLESOME DISTINCTION WILL BE A SERVICE
TO BOTH BENCH AND BAR.  IT IS OFTEN DIFFICULT TO DETERMINE THE PROPER
PROCEDURE UNDER THE PRESENT LAW AND FREQUENTLY APPEALS ARE TAKEN IN
BOTH WAYS IN ORDER TO BE CERTAIN.  THE HOUSE BILL SEEKS TO REMEDY THIS
CONDITION BY PROVIDING THAT IN THE EVENT OF MISTAKE THE APPELLATE COURT
MAY CONSIDER THE APPEAL AS PROPERLY TAKEN AND PROCEED TO A
DETERMINATION OF THE CASE.  YOUR COMMITTEE BELIEVES IT IS MUCH BETTER
TO ELIMINATE THE DISTINCTION ALTOGETHER." 

THE TESTIMONY OF REUBEN G. HUNT BEFORE THE SENATE COMMITTEE IS
PARTICULARLY ILLUMINATING ON THIS POINT OF CONTROVERSY.  S. HEARINGS,
SUPRA, NOTE 2, P. 53.  SEE ALSO HUNT, APPEALS FROM THE DISTRICT COURTS
TO THE CIRCUIT COURTS OF APPEALS IN BANKRUPTCY CASES, 42 COMM. L.
JOURN.  (1937). 

FN5  THAT REPORT STATES THAT THE PRESENT SEC. 24 "PRACTICALLY
ABOLISHES" THE DISTINCTION "BETWEEN APPEALS AS OF RIGHT AND APPEALS BY
LEAVE OF THE APPELLATE COURTS."  ID., SUPRA, NOTE 4.  AND THE COMMITTEE
IN COMMENTING ON SEC. 250 MERELY SAYS: 

"SECTION 250, DERIVED FROM SECTION 77B (C)(9), IS INTENDED TO
FACILITATE APPEALS FROM THE GRANT OR REFUSAL OF AN ALLOWANCE OF
COMPENSATION.  THESE ARE TO BE DISPOSED OF WITHOUT THE NECESSITY OF A
PRINTED RECORD."  ID., P. 38. 

FN6  H.R. REP. NO. 194, 73RD CONG., 1ST SESS., P. 1. 

FN7  THE FIDUCIARY STATUS OF SUCH CLAIMANTS IS EXPRESSLY RECOGNIZED
IN THE CHANDLER ACT.  SEC. 249 PROVIDES IN PART: 

"NO COMPENSATION OR REIMBURSEMENT SHALL BE ALLOWED TO ANY COMMITTEE
OR ATTORNEY, OR OTHER PERSON ACTING IN THE PROCEEDINGS IN A
REPRESENTATIVE OR FIDUCIARY CAPACITY, WHO AT ANY TIME AFTER ASSUMING TO
ACT IN SUCH CAPACITY HAS PURCHASED OR SOLD SUCH CLAIMS OR STOCK, OR BY
WHOM OR FOR WHOSE ACCOUNT SUCH CLAIMS OR STOCK HAVE, WITHOUT THE PRIOR
CONSENT OR SUBSEQUENT APPROVAL OF THE JUDGE, BEEN OTHERWISE ACQUIRED OR
TRANSFERRED." 

FN8  SEC. 243. 
..END :




















NAT. LICORICE CO. V. LABOR BOARD, 309 U.S. 350 


NO. 272.  ARGUED FEBRUARY 7, 1940.  - DECIDED MARCH 4, 1940.  - 104 F.2D
655, AFFIRMED WITH MODIFICATION. 


1.  SUBSTANTIAL EVIDENCE SUSTAINS A FINDING BY THE NATIONAL LABOR
RELATIONS BOARD THAT A PARTICULAR UNION WAS THE CHOICE OF A MAJORITY OF
EMPLOYEES, AS BARGAINING REPRESENTATIVE OF ALL, AT A TIME WHEN THEIR
EMPLOYER REFUSED TO DEAL WITH IT AS REPRESENTATIVE OF EMPLOYEES WHO
WERE NOT MEMBERS OF THE UNION.  P. 357. 

2.  EMPLOYEES IN A PLANT AGREED INDIVIDUALLY WITH THE EMPLOYER NOT TO
STRIKE OR TO DEMAND A CLOSED SHOP OR A SIGNED AGREEMENT WITH ANY UNION,
ALSO FOR ARBITRATION AS TO WAGES AND HOURS, BUT THAT THE QUESTION OF
THE PROPRIETY OF AN EMPLOYEE'S DISCHARGE SHOULD IN NO EVENT BE ONE FOR
ARBITRATION OR MEDIATION.  THE CONTRACTS WERE PROCURED WITH THE AID OF
A COMMITTEE OF EMPLOYEES WHICH WAS CREATED FOR THAT PURPOSE, AND
DOMINATED, BY THE EMPLOYER, AND RETAINED THEREAFTER NO FUNCTION OTHER
THAN THAT OF JOINING THE EMPLOYER IN SELECTION OF AN ARBITRATOR. 
HELD: 

(1)  THAT THE CONTRACTS WERE IN VIOLATION OF THE NATIONAL LABOR
RELATIONS ACT AND WERE APPROPRIATE SUBJECTS FOR THE REMEDIAL ACTION OF
THE BOARD AUTHORIZED BY SEC. 10 OF THE ACT.  P. 359. 

(2)  AN ORDER OF THE BOARD PRECLUDING THE EMPLOYER FROM TAKING ANY
BENEFIT OF THE CONTRACTS AND FROM CARRYING OUT ANY OF THEIR PROVISIONS
THE EFFECT OF WHICH WOULD BE TO INFRINGE RIGHTS GUARANTEED BY THE ACT,
WAS VALID, ALTHOUGH THE EMPLOYEES WHO MADE THE CONTRACTS WERE NOT
PARTIES TO THE BOARD'S PROCEEDING.  P. 361. 

(3)  SUCH ORDER DOES NOT FORECLOSE THE EMPLOYEES FROM TAKING ANY
ACTION TO SECURE AN ADJUDICATION UPON THE CONTRACTS, NOR PREJUDGE THEIR
RIGHTS IN THE EVENT OF SUCH ADJUDICATION.  P. 365. 

(4)  SECTION 10(A) AND (C) OF THE ACT COMMITS TO THE BOARD THE
EXCLUSIVE POWER TO DECIDE WHETHER UNFAIR LABOR PRACTICES HAVE BEEN
COMMITTED AND, WITHIN THE LIMITS PRESCRIBED IN THAT SECTION, TO
DETERMINE WHAT ACTION THE EMPLOYER MUST TAKE TO REMOVE OR AVOID THEIR
CONSEQUENCES.  P. 365. 

(5)  A PROVISION OF THE ORDER, REQUIRING THE EMPLOYER TO POST NOTICE
THAT THE CONTRACTS WITH INDIVIDUAL EMPLOYEES (WHO WERE NOT PARTIES TO
THE PROCEEDINGS) ARE "VOID AND OF NO EFFECT," SHOULD BE MODIFIED SO AS
TO SAY IN LIEU THAT THE CONTRACTS WERE MADE IN VIOLATION OF THE ACT,
AND THAT THE EMPLOYER WILL NO LONGER OFFER, SOLICIT, ENTER INTO,
CONTINUE, ENFORCE, OR ATTEMPT TO ENFORCE SUCH CONTRACTS WITH ITS
EMPLOYEES; BUT THIS WITHOUT PREJUDICE TO THE ASSERTION BY THE EMPLOYEES
OF ANY LEGAL RIGHTS THEY MAY HAVE ACQUIRED UNDER SUCH CONTRACTS.  P.
367. 

(6)  THE BOARD HAS JURISDICTION TO DEAL WITH VIOLATIONS WHICH THOUGH
NOT SET UP IN THE CHARGE INVOKING ITS ACTION, SEC. 10(B), ARE
CONTINUATIONS OF VIOLATIONS THERE ALLEGED, OF THE SAME CLASS AND FOR
THE SAME OBJECTS.  P. 367. 

NATIONAL LICORICE CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 308 U.S. 535, TO REVIEW A JUDGMENT FOR THE ENFORCEMENT OF
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

APART FROM THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD, THE QUESTIONS OF IMPORTANCE PRESENTED
FOR OUR DECISION ARE WHETHER THE BOARD HAS AUTHORITY TO ORDER AN
EMPLOYER NOT TO ENFORCE CONTRACTS WITH ITS EMPLOYEES, FOUND TO HAVE
BEEN PROCURED IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT, AND TO
CONTAIN PROVISIONS VIOLATING THAT ACT, IN THE ABSENCE OF THE EMPLOYEES
AS PARTIES TO THE PROCEEDING; AND WHETHER THE BOARD HAS AUTHORITY TO
MAKE ITS ORDER RELATING TO THE CONTRACTS, ALTHOUGH THE UNFAIR LABOR
PRACTICES FOUND TO AFFECT THE CONTRACTS WERE NOT SET UP IN THE CHARGE
PRESENTED TO THE BOARD, ON THE BASIS OF WHICH IT ISSUED ITS COMPLAINT. 

ON AUGUST 2, 1937, THE BAKERY & CONFECTIONERY WORKERS INTERNATIONAL
UNION OF AMERICA, LOCAL UNION NO. 405, A LABOR ORGANIZATION, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR, LODGED WITH THE NATIONAL LABOR
RELATIONS BOARD AN AMENDED CHARGE, ALLEGING THAT PETITIONER HAD ENGAGED
IN CERTAIN UNFAIR LABOR PRACTICES IN VIOLATION OF THE NATIONAL LABOR
RELATIONS ACT.  AFTER A COMPLAINT BY THE BOARD CHARGING PETITIONER WITH
UNFAIR LABOR PRACTICES HAD BEEN SERVED OCTOBER 7, 1937, AND AFTER
HEARINGS, THE BOARD FOUND JURISDICTIONAL FACTS, WHICH NEED NOT BE
REPEATED, AND OTHER FACTS WHICH MAY BE SHORTLY SUMMARIZED AS FOLLOWS:
PETITIONER IS ENGAGED IN BUSINESS IN THE MANUFACTURE OF LICORICE
PRODUCTS WHICH IT SELLS AND SHIPS IN COMMERCE, EMPLOYING AT ITS
BROOKLYN, NEW YORK, PLANT ABOUT ONE HUNDRED AND FORTY PRODUCTION
EMPLOYEES.  THE BOARD FOUND THAT EARLY IN JULY, 1937, THE UNION BEGAN
TO SECURE SIGNATURES OF PETITIONER'S EMPLOYEES TO APPLICATIONS FOR
MEMBERSHIP; THAT ON JULY 14, 1937, NINETY-NINE OF PETITIONER'S ONE
HUNDRED AND FORTY EMPLOYEES HAD SIGNED APPLICATIONS FOR MEMBERSHIP,
DESIGNATING THE UNION AS THE APPLICANT'S REPRESENTATIVE FOR COLLECTIVE
BARGAINING; THAT THE NUMBER HAD INCREASED TO ONE HUNDRED AND NINE ON
JULY 19TH OR 20TH.  ON THAT DATE A MEETING WAS HELD BETWEEN
REPRESENTATIVES OF THE UNION AND OFFICERS OF PETITIONER, AT WHICH THE
UNION DEMANDS WERE PRESENTED.  THE NEGOTIATIONS CAME TO NOTHING AND
WERE PROMPTLY FOLLOWED BY AN UNSUCCESSFUL EFFORT ON THE PART OF
PETITIONER'S REPRESENTATIVES TO CIRCULATE AMONG THE EMPLOYEES A
PETITION, NOMINATING A COMMITTEE TO ACT AS THEIR COLLECTIVE BARGAINING
REPRESENTATIVE. 

ON JULY 29TH A SECOND MEETING TOOK PLACE BETWEEN REPRESENTATIVES OF
THE UNION AND THE PRESIDENT AND OTHER OFFICERS OF THE COMPANY, AT WHICH
THE PETITIONER DECLINED TO RECOGNIZE THE UNION AS THE BARGAINING
REPRESENTATIVE OF ALL THE EMPLOYEES, AND DECLARED THAT IT WOULD
NEGOTIATE WITH THE UNION ONLY AS THE BARGAINING REPRESENTATIVE OF ITS
MEMBERS.  THE MEETING ADJOURNED WITHOUT REACHING ANY AGREEMENT.  ON
AUGUST 2ND THE EMPLOYEES WENT OUT ON STRIKE.  THE PLANT WAS CLOSED AND
NOT REOPENED UNTIL THE CONCLUSION OF THE STRIKE ON AUGUST 25TH.  AUGUST
5TH HAD BEEN AGREED UPON FOR A THIRD MEETING, AND ON THE EVENING OF
AUGUST 2ND, AFTER THE STRIKE HAD BEGUN, THE UNION REPRESENTATIVES WROTE
TO PETITIONER STATING THAT THE UNION WAS READY TO MEET WITH PETITIONER
AT ANY TIME OR PLACE WHICH IT WOULD DESIGNATE "IN ORDER TO MEDIATE THE
DISPUTE AND THROUGH COLLECTIVE BARGAINING ARRIVE AT A MUTUALLY
SATISFACTORY AGREEMENT."  PETITIONER REPLIED, DECLARING THAT IT
BELIEVED THE UNION HAD CALLED THE STRIKE.  IT CANCELLED THE MEETING OF
AUGUST 5TH AND ASSERTED THAT IT WOULD NOT "SET ANY FURTHER TIME FOR
NEGOTIATIONS UNTIL WE HAVE A LETTER FROM YOU INFORMING US AS TO WHETHER
OR NOT THIS STRIKE WAS INSTIGATED, ORDERED OR APPROVED BY YOUR UNION OR
OFFICIALS OF THE UNION."  REPRESENTATIVES OF THE UNION DENIED THAT IT
HAD CALLED THE STRIKE.  THE BOARD FOUND THAT THE STRIKE WAS THE RESULT
OF SPONTANEOUS ACTION BY THE EMPLOYEES BECAUSE OF DISSATISFACTION WITH
THE COURSE OF NEGOTIATIONS BETWEEN THE UNION AND PETITIONER. 

ON AUGUST 27TH AFTER THE PLANT WAS REOPENED, PETITIONER SENT A LETTER
TO EACH EMPLOYEE REQUESTING HIM TO RETURN TO WORK ON AUGUST 30TH.  ON
THE SAME DAY PETITIONER'S REPRESENTATIVE MET WITH THREE EMPLOYEES WHO
STATED THAT THEY WERE ANXIOUS TO RETURN TO WORK, AND ASKED WHETHER THEY
COULD HAVE THEIR OWN COMMITTEE AND BARGAIN WITH PETITIONER.  THEY WERE
INFORMED THAT IF THEY COULD OBTAIN THE AUTHORIZATION OF A MAJORITY OF
THE EMPLOYEES, PETITIONER WOULD DEAL WITH THEM.  THEREAFTER,
PETITIONER'S PRESIDENT, AT THE REQUEST OF ONE OF THE THREE, PREPARED A
FORM OF LETTER DESIGNATING A COMMITTEE OF WORKERS AS THE COLLECTIVE
BARGAINING REPRESENTATIVES OF THE EMPLOYEES AND REVOKING THE AUTHORITY
TO ANY OTHER ORGANIZATION.  THE LETTER WAS SIGNED BY THE MEMBERS OF THE
COMMITTEE AND ONE HUNDRED AND TEN OTHER EMPLOYEES, AND RETURNED TO
PETITIONER ON SEPTEMBER 9TH. 

AT A MEETING WITH THE COMMITTEE ON SEPTEMBER 10TH PETITIONER'S
PRESIDENT RENEWED PROPOSALS FOR A CONTRACT, WHICH HE HAD MADE AT THE
MEETINGS WITH THE UNION REPRESENTATIVES ON JULY 20TH AND JULY 29TH,
STIPULATING FOR A FIVE PER CENT. WAGE INCREASE, TIME AND A HALF FOR
OVERTIME, AND ONE WEEK'S VACATION WITH PAY.  THE COMMITTEE'S ONLY
REQUEST RELATED TO PAY FOR HOLIDAYS AND A REDUCTION OF THE TERM ON THE
CONTRACT FROM FIVE TO THREE YEARS, WHICH WAS GRANTED WITH SOME
MODIFICATION.  AS FINALLY AGREED UPON THE CONTRACT PURPORTS TO BE MADE
BETWEEN THE PETITIONER, THE COMMITTEE AND "EACH AND EVERY ONE OF THE
EMPLOYEES."  FN1  PETITIONER FURNISHED THE COMMITTEE MEMBERS WITH
MIMEOGRAPHED COPIES OF THE AGREEMENT, TELLING THEM TO EXPLAIN IT TO THE
BEST OF THEIR ABILITY TO THE EMPLOYEES, AND GIVING EXPLICIT
INSTRUCTIONS AS TO THE MANNER IN WHICH THE INDIVIDUAL CONTRACTS WERE TO
BE EXECUTED.  THERE WAS TESTIMONY BY A NUMBER OF WITNESSES THAT
PETITIONER'S PRESIDENT INFORMED THE EMPLOYEES THAT HE WOULD NOT
"PROTECT THEIR JOBS AND THEY WOULD NOT GET FIVE PER CENT.  IF THEY DID
NOT SIGN THE AGREEMENT."  ONE GROUP OF FOURTEEN EMPLOYEES ASKED FOR
REPRESENTATION ON THE COMMITTEE AND WERE REFERRED TO PETITIONER'S
PRESIDENT, WHO, IN REFUSING THE REQUEST, INFORMED THEM THAT "THE
COMMITTEE HAD BEEN PICKED ALREADY.  THERE IS ENOUGH RIGHT NOW ON THE
COMMITTEE."  THE CONTRACT IS STATED TO BE DIRECTLY BETWEEN THE
PETITIONER AND THE INDIVIDUAL EMPLOYEE AND UNDER IT THE COMMITTEE AS
SUCH HAS NO RIGHTS OR DUTIES.  IT WAS SIGNED BY THE COMMITTEE AND ONE
HUNDRED AND EIGHTEEN EMPLOYEES.  THE COMMITTEE APPEARS TO HAVE
FUNCTIONED ONLY SO LONG AS IT WAS NECESSARY TO OBTAIN THE INDIVIDUAL
SIGNATURES ON THE CONTRACT.  THE BENEFITS OF THE CONTRACT WERE LIMITED
TO THOSE EMPLOYEES WHO SIGNED.  IN RETURN THE SIGNERS RELINQUISHED THE
RIGHT TO STRIKE, THE RIGHT TO DEMAND A CLOSED SHOP OR SIGNED AGREEMENT
WITH ANY UNION.  THE CONTRACT ALSO CONTAINED PROVISIONS FOR ARBITRATION
AS TO RATE OF WAGES AND THE NUMBER OF REGULAR HOURS OF EMPLOYMENT PER
WEEK BY AN ARBITRATOR DESIGNATED BY AND MUTUALLY ACCEPTABLE TO
PETITIONER AND THE COMMITTEE, BUT PROVIDED THAT THE "QUESTION AS TO THE
PROPRIETY OF AN EMPLOYEE'S DISCHARGE IS IN NO EVENT TO BE ONE FOR
ARBITRATION OR MEDIATION.  ...  " 

FROM THESE SUBSIDIARY FINDINGS OF FACT THE BOARD CONCLUDED THAT
PETITIONER, BY REFUSING TO BARGAIN COLLECTIVELY WITH THE UNION ON JULY
20TH AND JULY 29TH AND THEREAFTER, HAD ENGAGED IN UNFAIR LABOR
PRACTICES WITHIN THE MEANING OF SEC. 8(5) OF THE ACT; THAT PETITIONER,
BY COERCING AND INTIMIDATING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS
TO SELF-ORGANIZATION AND COLLECTIVE BARGAINING, AND BY PERSUADING AND
COERCING ITS EMPLOYEES TO REFRAIN FROM BECOMING MEMBERS OF THE UNION
AND TO SIGN INDIVIDUAL CONTRACTS OF EMPLOYMENT, HAD ENGAGED IN AN
UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC. 8(1) OF THE ACT, AND
THAT BY INITIATING, SPONSORING AND DOMINATING A LABOR ORGANIZATION OF
ITS EMPLOYEES, THE COLLECTIVE BARGAINING COMMITTEE, IT HAD ENGAGED IN
UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SEC. 8(1) AND (2) OF THE
ACT.  THE BOARD'S ORDER DIRECTED PETITIONER TO DESIST FROM DOMINATING
AND INTERFERING WITH THE ADMINISTRATION OF THE COLLECTIVE BARGAINING
COMMITTEE, FROM RECOGNIZING THE COMMITTEE AS REPRESENTING PETITIONER'S
EMPLOYEES, FROM GIVING EFFECT TO PETITIONER'S CONTRACTS WITH THE
COMMITTEE AND WITH THE INDIVIDUAL EMPLOYEES, AND FROM REFUSING TO
BARGAIN COLLECTIVELY WITH THE UNION.  AS AFFIRMATIVE RELIEF, DESIGNED
TO EFFECTUATE THE POLICY OF THE ACT AS AUTHORIZED BY SEC. 10(C), THE
BOARD ORDERED PETITIONER TO BARGAIN COLLECTIVELY, ON REQUEST, WITH THE
UNION; TO WITHDRAW RECOGNITION FROM THE COMMITTEE; TO INFORM THE
COMMITTEE AND EMPLOYEES WHO HAD CONTRACTED INDIVIDUALLY THAT "SUCH
CONTRACT CONSTITUTES A VIOLATION" OF THE ACT; THAT THE EMPLOYEES ARE
RELIEVED FROM ALL OBLIGATIONS UNDER IT; THAT PETITIONER WILL "NO LONGER
DEMAND ITS PERFORMANCE" AND TO POST APPROPRIATE NOTICES. 

THE COURT OF APPEALS FOR THE SECOND CIRCUIT, UPON PETITION OF THE
BOARD FOR ENFORCEMENT OF THE ORDER, DIRECTED THAT IT BE ENFORCED EXCEPT
FOR A MODIFICATION OF THAT PART OF THE ORDER WHICH DIRECTED THAT
PETITIONER RECOGNIZE AND BARGAIN WITH THE UNION.  THE ORDER OF THE
COURT OF APPEALS DIRECTED THAT THIS PART OF THE BOARD'S ORDER BE
CONDITIONED UPON A DETERMINATION IN AN ELECTION THAT THE UNION IS STILL
THE CHOICE AS BARGAINING REPRESENTATIVE OF A MAJORITY OF THE
EMPLOYEES.  104 F.2D 655. 

UPON A PETITION WHICH CHALLENGED THE AUTHORITY OF THE BOARD TO MAKE
SO MUCH OF ITS ORDER AS RELATED TO THE CONTRACTS WITH PETITIONER'S
EMPLOYEES, WITHOUT MAKING THE EMPLOYEES PARTIES TO THE PROCEEDING, WE
GRANTED CERTIORARI OCTOBER 9, 1939, BECAUSE OF THE IMPORTANCE OF THE
QUESTION IN THE ADMINISTRATION OF THE NATIONAL LABOR RELATIONS ACT, AND
BECAUSE OF AN ASSERTED MISAPPLICATION OF THE PRINCIPLES OF NATIONAL
LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261 AND
CONSOLIDATED EDISON CO. V. NATIONAL LABOR RELATIONS BOARD, 305 U.S.
197.  OF LESSER MOMENT ARE QUESTIONS, ALSO RAISED BY THE PETITION,  FN2
WHETHER THE BOARD'S FINDING THAT THE UNION WAS STILL THE AUTHORIZED
BARGAINING REPRESENTATIVE OF A MAJORITY OF PETITIONER'S EMPLOYEES, IS
SUPPORTED BY SUBSTANTIAL EVIDENCE AND, IF NOT, WHETHER THE CIRCUIT
COURT OF APPEALS PROPERLY DIRECTED THE BOARD TO CONDUCT AN ELECTION TO
DETERMINE WHETHER THE UNION STILL REPRESENTS A MAJORITY OF PETITIONER'S
EMPLOYEES, AND, FINALLY, WHETHER THE JURISDICTION OF THE BOARD IS
LIMITED TO SUCH UNFAIR LABOR PRACTICES AS ARE SET UP IN THE CHARGE
PRESENTED TO THE BOARD SO AS TO PRECLUDE ITS DETERMINATION THAT THE
CREATION OF THE ORGANIZATION COMMITTEE AND PETITIONER'S CONTRACTS WITH
INDIVIDUAL EMPLOYEES INVOLVED UNFAIR LABOR PRACTICES, SINCE BOTH
OCCURRED AFTER THE CHARGE WAS LODGED WITH THE BOARD AND AFTER ITS
COMPLAINT WAS SERVED ON PETITIONER. 

1.  THE BOARD FOUND THAT PETITIONER, ON JULY 20TH AND 29TH, 1937, AND
THEREAFTER, REFUSED TO RECOGNIZE AND TO BARGAIN COLLECTIVELY WITH THE
REPRESENTATIVE (THE UNION) OF A MAJORITY OF ITS EMPLOYEES.  IF WE
ASSUME, AS PETITIONER ARGUES, THAT A MAJORITY OF ITS EMPLOYEES HAD
FREELY REVOKED THEIR DESIGNATION OF THE UNION AS BARGAINING
REPRESENTATIVE AND CHOSEN IN ITS STEAD THE COLLECTIVE BARGAINING
COMMITTEE, THESE CIRCUMSTANCES DO NOT MILITATE AGAINST THE FINDINGS OF
THE BOARD THAT THE UNION REPRESENTED THE EMPLOYEES DURING JULY AND
AUGUST WHEN THE PETITIONER REFUSED TO BARGAIN WITH IT, NOR DO THEY
RELIEVE PETITIONER FROM THE CONSEQUENCES OF ITS REFUSAL TO BARGAIN,
WHICH WAS AN UNFAIR LABOR PRACTICE. 

SINCE THE COURT OF APPEALS HAS CONFIRMED THE FINDINGS OF THE BOARD,
THERE IS NO OCCASION HERE TO REVIEW THE EVIDENCE IN DETAIL. 
CINCINNATI, H. & D. RY. CO. V. INTERSTATE COMMERCE COMMISSION, 206 U.S.
142, 154; ILLINOIS CENTRAL R. CO. V. INTERSTATE COMMERCE COMMISSION,
206 U.S. 441, 456.  IT IS ENOUGH, WITH THE FINDINGS NOT CHALLENGED,
THAT THERE IS EVIDENCE THAT BY JULY 20TH ONE HUNDRED AND NINE OF
PETITIONER'S ONE HUNDRED AND FORTY EMPLOYEES HAD SIGNED APPLICATIONS
FOR MEMBERSHIP IN THE UNION, DESIGNATING IT AS THE APPLICANT'S
REPRESENTATIVE FOR COLLECTIVE BARGAINING, AND THAT ON THAT DATE
NEGOTIATION BEGAN BETWEEN PETITIONER AND THE UNION REPRESENTATIVES
WHICH WAS CONTINUED UNTIL AUGUST.  THE EVIDENCE SHOWS THAT ATTEMPTS BY
PETITIONER BETWEEN THAT DATE AND JULY 20TH TO CIRCULATE A PETITION
AMONG ITS EMPLOYEES NOMINATING A COMMITTEE TO ACT AS THEIR COLLECTIVE
BARGAINING REPRESENTATIVE FAILED.  A FEW EMPLOYEES SIGNED.  THEN, A
NUMBER CANCELLED THEIR SIGNATURES.  THE PETITION WAS RETURNED TO THE
PETITIONER'S SUPERINTENDENT AND WAS DESTROYED BY AN ASSISTANT SECRETARY
OF THE COMPANY.  THERE IS TESTIMONY THAT AT THE MEETING WITH THE UNION
REPRESENTATIVES ON JULY 29TH PETITIONER'S PRESIDENT DECLINED TO
RECOGNIZE THE UNION AS THE BARGAINING REPRESENTATIVE OF ALL THE
EMPLOYEES, AND DECLARED THAT HE WOULD NEGOTIATE WITH IT ONLY AS THE
BARGAINING REPRESENTATIVE OF THE UNION MEMBERS, REFUSING TO BARGAIN
WITH IT AS THE REPRESENTATIVE OF ALL THE EMPLOYEES, A PLAIN VIOLATION
OF THE ACT.  SECS. 8(5), 9(A).  THIS WAS FOLLOWED BY PETITIONER'S
REFUSAL, ON AUGUST 2ND, TO NEGOTIATE WITH UNION REPRESENTATIVES.  THERE
WAS ALSO EVIDENCE FROM WHICH THE BOARD COULD HAVE FOUND THAT THE
NEGOTIATIONS ON JULY 20TH AND JULY 29TH WERE NOT ENTERED INTO BY THE
PETITIONER IN GOOD FAITH, AND WERE BUT THINLY DISGUISED REFUSALS TO
TREAT WITH THE UNION REPRESENTATIVES.    IN VIEW OF THE EVIDENCE
ALREADY NOTED OF THE CHOICE OF THE UNION AS BARGAINING REPRESENTATIVE
BY A LARGE MAJORITY OF THE EMPLOYEES BETWEEN JULY 14TH AND 20TH, OF THE
COMPLETE FAILURE OF PETITIONER'S EFFORTS TO DISTURB THAT REPRESENTATION
BETWEEN THE 20TH AND THE 29TH, THERE WAS SUBSTANTIAL EVIDENCE TO
SUPPORT THE BOARD'S CONCLUSION THAT THE UNION WAS THE CHOICE AS
BARGAINING REPRESENTATIVE OF APPELLANT'S EMPLOYEES DURING JULY AND IN
AUGUST, AT LEAST UNTIL THE 5TH, WHEN PETITIONER REFUSED TO TREAT WITH
THE UNION. 

AS WILL PRESENTLY APPEAR, THE BARGAINING COMMITTEE AND THE CONTRACTS
OBTAINED THROUGH ITS MEDIATION WERE BOTH THE PRODUCTS OF UNFAIR LABOR
PRACTICES, AND THE COMMITTEE, UNDER THE BOARD'S ORDER, WAS NOT ENTITLED
TO RECOGNITION AS THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES.  SUCH
INJURY, IF ANY, AS THE PETITIONER MIGHT HAVE SUFFERED FROM THE BOARD'S
ORDER REQUIRING IT TO RECOGNIZE AND BARGAIN WITH THE UNION, IS AVOIDED
BY THE DIRECTION OF THE COURT OF APPEALS THAT THIS PART OF THE ORDER BE
CONDITIONED UPON A DETERMINATION BY AN ELECTION THAT THE UNION IS STILL
THE CHOICE OF A MAJORITY OF THE EMPLOYEES.  THE BOARD HAS NOT
PETITIONED FOR CERTIORARI AND DOES NOT COMPLAIN OF THIS DIRECTION. 

2.  THE PETITION FOR CERTIORARI DOES NOT ASSAIL THE FINDINGS OF THE
BOARD THAT PETITIONER'S OFFICIALS INITIATED THE ORGANIZATION OF THE
COMMITTEE, AND THAT IT "SPONSORED AND DOMINATED THE FORMATION OF THE
COMMITTEE AND THEREAFTER DOMINATED ITS ADMINISTRATION AND CONTRIBUTED
SUPPORT TO IT."  WE SHALL NOT RE-EXAMINE THOSE ISSUES HERE, MORE THAN
TO SAY THAT THE EVIDENCE DISCLOSES THAT THE PURPOSE OF CREATING THE
COMMITTEE WAS TO SECURE THE CONTRACTS AND BY THE CONTRACTS THE
COMMITTEE WAS LEFT WITHOUT ANY FURTHER FUNCTION TO PERFORM EXCEPT TO
JOIN WITH THE EMPLOYER IN CHOOSING AN ARBITRATOR FOR THE ARBITRATION OF
SPECIFIED LABOR DISPUTES. 

BUT THE PETITION RAISES THE QUESTION WHETHER THE TERMS OF THE
CONTRACT, AS THE COURT OF APPEALS HELD, VIOLATE THE NATIONAL LABOR
RELATIONS ACT, AND IT CHALLENGES THE AUTHORITY OF THE BOARD BECAUSE OF
THE ABSENCE OF THE INDIVIDUAL EMPLOYEES, AS PARTIES, TO MAKE ANY ORDER
RESPECTING THE CONTRACTS.  THE CONTRACTS, AS THE BOARD FOUND, WERE NOT
ONLY PROCURED THROUGH THE MEDIATION OF A COMPANY-DOMINATED LABOR
ORGANIZATION, BUT THEY WERE THE MEANS ADOPTED TO "ELIMINATE THE UNION
AS THE COLLECTIVE BARGAINING AGENCY OF ITS EMPLOYEES."  WE THINK IT
PLAIN ALSO THAT BY THEIR TERMS THEY IMPOSED ILLEGAL RESTRAINTS UPON THE
EMPLOYEES' RIGHTS TO ORGANIZE AND BARGAIN COLLECTIVELY GUARANTEED BY
SECS. 7 AND 8 OF THE ACT. 

BY THE CONTRACT EACH EMPLOYEE AGREED NOT "TO DEMAND A CLOSED SHOP OR
A SIGNED AGREEMENT BY HIS EMPLOYER WITH ANY UNION."  THIS PROVISION
FORECLOSED THE EMPLOYEE FROM BARGAINING FOR A CLOSED SHOP OR A SIGNED
AGREEMENT WITH THE EMPLOYER, FREQUENT SUBJECTS OF NEGOTIATION BETWEEN
EMPLOYERS AND EMPLOYEES, SEE CONSOLIDATED EDISON CO. V. NATIONAL LABOR
RELATIONS BOARD, SUPRA, 236 ET SEQ.; NATIONAL LABOR RELATIONS BOARD V.
SANDS MFG. CO., 306 U.S. 332, 342; CF. VIRGINIAN RAILWAY CO. V. SYSTEM
FEDERATION NO. 40, 300 U.S. 515, 553, 555, NOTE 7.  IN ADDITION THE
RESTRICTION UPON THE EMPLOYEE'S RIGHT TO ASK A SIGNED AGREEMENT
EXTENDING ONLY TO AGREEMENTS WITH "ANY UNION" IS IN PLAIN CONFLICT WITH
THE PUBLIC POLICY OF THE ACT TO ENCOURAGE THE PROCEDURE OF COLLECTIVE
BARGAINING, SEE SEC. 1, SINCE IT DISCRIMINATES AGAINST LABOR
ORGANIZATIONS BY FORBIDDING SIGNED CONTRACTS WITH LABOR UNIONS WHILE IT
PERMITS THEM WITH THE INDIVIDUAL WORKERS.  SEE CONSOLIDATED EDISON CO.
V. NATIONAL LABOR RELATIONS BOARD, SUPRA, 236. 

IT LIKEWISE FORESTALLS COLLECTIVE BARGAINING WITH RESPECT TO
DISCHARGED EMPLOYEES, FIRST PROVIDING THAT A DISCHARGED EMPLOYEE MAY
SUBMIT TO THE EMPLOYER FACTS INDICATING THAT HIS DISCHARGE WAS
UNREASONABLE AND THEN STIPULATING THAT THE "QUESTION AS TO THE
PROPRIETY OF AN EMPLOYEE'S DISCHARGE IS IN NO EVENT TO BE ONE FOR
ARBITRATION OR MEDIATION."  THE EFFECT OF THIS CLAUSE WAS TO
DISCOURAGE, IF NOT FORBID, ANY PRESENTATION OF THE DISCHARGED
EMPLOYEE'S GRIEVANCES TO APPELLANT THROUGH A LABOR ORGANIZATION OR HIS
CHOSEN REPRESENTATIVES, OR IN ANY WAY EXCEPT PERSONALLY. 

SINCE THE CONTRACTS WERE THE FRUITS OF UNFAIR LABOR PRACTICES,
STIPULATED FOR THE RENUNCIATION BY THE EMPLOYEES OF RIGHTS GUARANTEED
BY THE ACT, AND WERE A CONTINUING MEANS OF THWARTING THE POLICY OF THE
ACT, THEY WERE APPROPRIATE SUBJECTS FOR THE AFFIRMATIVE REMEDIAL ACTION
OF THE BOARD AUTHORIZED BY SEC. 10 OF THE ACT.  NATIONAL LABOR
RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, INC., SUPRA, 265;
NATIONAL LABOR RELATIONS BOARD V. NEWPORT NEWS SHIPBUILDING & DRY DOCK
CO., 308 U.S. 241.  HENCE THE BOARD WAS FREE BY ITS ORDER TO DIRECT
THAT THE APPELLANT SHOULD TAKE NO BENEFIT FROM THE CONTRACTS UNLESS IT
WAS WITHOUT AUTHORITY TO ACT BECAUSE THE INDIVIDUAL SIGNERS OF THE
CONTRACTS HAD NOT BEEN MADE PARTIES TO THE PROCEEDING.  IT IS URGED
THAT IN THE ABSENCE OF THE EMPLOYEES WHO SIGNED THE CONTRACT, THE BOARD
WAS POWERLESS TO DECLARE IT VOID AND OF NO EFFECT AS TO THOSE
EMPLOYEES, AND THAT CONSEQUENTLY IT COULD MAKE NO ORDER FORBIDDING
PETITIONER TO MAKE USE OF THE CONTRACTS AS THE MEANS OF DEFEATING THE
POLICY AND PURPOSES OF THE ACT. 

CONSOLIDATED EDISON CO. V. NATIONAL LABOR RELATIONS BOARD, SUPRA, IS
NOT DECISIVE OF THIS QUESTION.  THERE, PAGE 236, AFTER POINTING OUT
THAT THE BOARD'S "POWER TO COMMAND AFFIRMATIVE ACTION IS REMEDIAL, NOT
PUNITIVE, AND IS TO BE EXERCISED IN THE AID OF THE BOARD'S AUTHORITY TO
RESTRAIN VIOLATIONS AND AS A MEANS OF REMOVING OR AVOIDING THE
CONSEQUENCES OF VIOLATION WHERE THOSE CONSEQUENCES ARE OF A KIND TO
THWART THE PURPOSES OF THE ACT," DECISION WAS RESTED SPECIFICALLY ON
THE GROUND THAT "HERE, THERE IS NO BASIS FOR A FINDING THAT THE
CONTRACTS WITH THE BROTHERHOOD AND ITS LOCALS WERE A CONSEQUENCE OF THE
UNFAIR LABOR PRACTICES FOUND BY THE BOARD OR THAT THESE CONTRACTS IN
THEMSELVES THWART ANY POLICY OF THE ACT OR THAT THEIR CANCELLATION
WOULD IN ANY WAY MAKE THE ORDER TO CEASE THE SPECIFIED PRACTICES ANY
MORE EFFECTIVE." 

IT IS ELEMENTARY THAT IT IS NOT WITHIN THE POWER OF ANY TRIBUNAL TO
MAKE A BINDING ADJUDICATION OF THE RIGHTS IN PERSONAM OF PARTIES NOT
BROUGHT BEFORE IT BY DUE PROCESS OF LAW.  PENNOYER V. NEFF, 95 U.S.
714; RIVERSIDE & DAN RIVER COTTON MILLS V. MENEFEE, 237 U.S. 189; CF.
ARIZONA V. CALIFORNIA, 298 U.S. 558, 571, 572.  FOR THAT REASON THERE
IS NO OCCASION TO CONSIDER NOW HOW FAR THE CONTRACT RIGHTS, IF ANY, OF
THE EMPLOYEES MAY BE PASSED UPON BY THE BOARD AND THEIR EXERCISE
RESTRICTED BY ITS ORDER IN PROCEEDINGS TO WHICH THE EMPLOYEES HAVE BEEN
MADE PARTIES.  AS THE BOARD'S POWER CAN BE EFFECTIVELY EXERCISED ONLY
UPON PETITIONER, THE EMPLOYEES ARE ENTITLED TO NOTICE AND HEARING ONLY
IF THE STATUTE REQUIRES THEM TO BE MADE PARTIES TO THE PROCEEDING. 
CONSEQUENTLY THE ONLY QUESTION WE ARE CALLED ON TO DECIDE IS WHETHER,
IN THE CIRCUMSTANCES OF THIS CASE, THE EXERCISE OF THE BOARD'S
AUTHORITY IS SUCH A DEPARTURE FROM ACCEPTED MODES OF PROCEDURE AS
RIGHTLY TO BE REGARDED AS BEYOND THE POWER CONFERRED ON THE BOARD BY
SEC. 10 OF THE ACT. 

THE PROCEEDING AUTHORIZED TO BE TAKEN BY THE BOARD UNDER THE NATIONAL
LABOR RELATIONS ACT IS NOT FOR THE ADJUDICATION OF PRIVATE RIGHTS. 
AMALGAMATED UTILITY WORKERS V. CONSOLIDATED EDISON CO., ANTE, P. 261;
H. REPT. NO. 1147, 74TH CONG., 1ST SESS., COMMITTEE ON LABOR, P. 24;
CF. FEDERAL TRADE COMMISSION V. KLESNER, 280 U.S. 19.  IT HAS FEW OF
THE INDICIA OF A PRIVATE LITIGATION AND MAKES NO REQUIREMENT FOR THE
PRESENCE IN IT OF ANY PRIVATE PARTY OTHER THAN THE EMPLOYER CHARGED
WITH AN UNFAIR LABOR PRACTICE.  THE BOARD ACTS IN A PUBLIC CAPACITY TO
GIVE EFFECT TO THE DECLARED PUBLIC POLICY OF THE ACT TO ELIMINATE AND
PREVENT OBSTRUCTIONS TO INTERSTATE COMMERCE BY ENCOURAGING COLLECTIVE
BARGAINING AND BY PROTECTING THE "EXERCISE BY WORKERS OF FULL FREEDOM
OF ASSOCIATION, SELF-ORGANIZATION, AND DESIGNATION OF REPRESENTATIVES
OF THEIR OWN CHOOSING, FOR THE PURPOSE OF NEGOTIATING THE TERMS AND
CONDITIONS OF THEIR EMPLOYMENT.  ...  "  SEC. 1.  THE IMMEDIATE OBJECT
OF THE PROCEEDING IS TO PREVENT UNFAIR LABOR PRACTICES WHICH, AS
DEFINED BY SECS. 7, 8, ARE PRACTICES TENDING TO THWART THE DECLARED
POLICY OF THE ACT.  TO THAT END THE BOARD IS AUTHORIZED TO ORDER THE
EMPLOYER TO DESIST FROM SUCH PRACTICES, AND BY SEC. 10(C) IT IS GIVEN
AUTHORITY TO TAKE SUCH AFFIRMATIVE REMEDIAL ACTION AS WILL EFFECTUATE
THE POLICIES OF THE ACT.  NATIONAL LABOR RELATIONS BOARD V.
PENNSYLVANIA GREYHOUND LINES, SUPRA. 

IN A PROCEEDING SO NARROWLY RESTRICTED TO THE PROTECTION AND
ENFORCEMENT OF PUBLIC RIGHTS, THERE IS LITTLE SCOPE OR NEED FOR THE
TRADITIONAL RULES GOVERNING THE JOINDER OF PARTIES IN LITIGATION
DETERMINING PRIVATE RIGHTS.  ORDINARILY WHERE THE RIGHTS INVOLVED IN
LITIGATION ARISE UPON A CONTRACT, COURTS REFUSE TO ADJUDICATE THE
RIGHTS OF SOME OF THE PARTIES TO THE CONTRACT IF THE OTHERS ARE NOT
BEFORE IT.  SHIELDS V. BARROW, 17 HOW.  130, 140; CARROLL V. NEW YORK
LIFE INS. CO., 94 F.2D 333; CF. WATERMAN V. CANAL-LOUISIANA BANK CO.,
215 U.S. 33, 48.  SUCH A JUDGMENT OR DECREE WOULD BE FUTILE IF
RENDERED, SINCE THE CONTRACT RIGHTS ASSERTED BY THOSE PRESENT IN THE
LITIGATION COULD NEITHER BE DEFINED, AIDED NOR ENFORCED BY A DECREE
WHICH DID NOT BIND THOSE NOT PRESENT. 

BUT DIFFERENT CONSIDERATIONS MAY APPLY EVEN IN PRIVATE LITIGATION
WHERE THE RIGHTS ASSERTED ARISE INDEPENDENTLY OF ANY CONTRACT WHICH AN
ADVERSE PARTY MAY HAVE MADE WITH ANOTHER, NOT A PARTY TO THE SUIT, EVEN
THOUGH THEIR ASSERTION MAY AFFECT THE ABILITY OF THE FORMER TO FULFILL
HIS CONTRACT.  THE RIGHTS ASSERTED IN THE SUIT AND THOSE ARISING UPON
THE CONTRACT ARE DISTINCT AND SEPARATE, SO THAT THE COURT MAY, IN A
PROPER CASE, PROCEED TO JUDGMENT WITHOUT JOINING OTHER PARTIES TO THE
CONTRACT, SHAPING ITS DECREE IN SUCH MANNER AS TO PRESERVE THE RIGHTS
OF THOSE NOT BEFORE IT.  GENERAL INVESTMENT CO. V. LAKE SHORE RY., 260
U.S. 261, 285, 286; AMERICAN BRAKE SHOE & FOUNDRY CO. V. INTERBOROUGH
RAPID TRANSIT CO., 10 F.SUPP.  512, 515, AFF'D 76 F.2D 1002; FIDELITY &
DEPOSIT CO. V. MONTANA, 92 F.2D 693, 698; BROGDEX CO. V. FOOD MACHINERY
CO., 92 F.2D 787, 789; COMMERCIAL CASUALTY INS. CO. V. LAWHEAD, 62 F.2D
928, 931, 932; CF. HAMILTON V. SAVANNAH, F. & W. RY. CO., 49 F. 412;
HOWE V. HOWE & OWEN BALL BEARING CO., 154 F. 820, 828; ALCAZAR
AMUSEMENT CO. V. MUDD & COLLEY AMUSEMENT CO., 204 ALA. 509; 86 SO. 209;
E.L. HUSTING CO. V. COCA-COLA CO., 194 WIS. 311; 216 N.W. 833; NOKOL
CO. V. BECKER, 318 MO. 292; 300 S.W. 1108. 

HERE THE RIGHT ASSERTED BY THE BOARD IS NOT ONE ARISING UPON OR
DERIVED FROM THE CONTRACTS BETWEEN PETITIONER AND ITS EMPLOYEES.  THE
BOARD ASSERTS A PUBLIC RIGHT VESTED IN IT AS A PUBLIC BODY, CHARGED IN
THE PUBLIC INTEREST WITH THE DUTY OF PREVENTING UNFAIR LABOR
PRACTICES.  THE PUBLIC RIGHT AND THE DUTY EXTEND NOT ONLY TO THE
PREVENTION OF UNFAIR LABOR PRACTICES BY THE EMPLOYER IN THE FUTURE, BUT
TO THE PREVENTION OF HIS ENJOYMENT OF ANY ADVANTAGE WHICH HE HAS GAINED
BY VIOLATION OF THE ACT, WHETHER IT BE A COMPANY UNION OR AN UNLAWFUL
CONTRACT WITH EMPLOYEES, AS THE MEANS OF DEFEATING THE STATUTORY POLICY
AND PURPOSE.  OBVIOUSLY EMPLOYERS CANNOT SET AT NAUGHT THE NATIONAL
LABOR RELATIONS ACT BY INDUCING THEIR WORKMEN TO AGREE NOT TO DEMAND
PERFORMANCE OF THE DUTIES WHICH IT IMPOSES OR BY INSISTING, MORE THAN
IN A PRIVATE LITIGATION, THAT THE EMPLOYER'S OBEDIENCE TO THE ACT
CANNOT BE COMPELLED IN THE ABSENCE OF THE WORKERS WHO HAVE THUS
RENOUNCED THEIR RIGHTS. 

THE BOARD'S ORDER RUNS ONLY AGAINST PETITIONER.  IT DIRECTS THAT IT
SHALL CEASE RECOGNIZING THE COMMITTEE AS THE REPRESENTATIVE OF ANY OF
THE EMPLOYEES FOR THE PURPOSE OF DEALING WITH PETITIONER CONCERNING
GRIEVANCES, LABOR DISPUTES, WAGES, RATES OF PAY, HOURS OF EMPLOYMENT OR
CONDITIONS OF WORK; THAT IT SHALL NOT "GIVE EFFECT" TO THE CONTRACTS
WITH ITS EMPLOYEES; THAT IT NOTIFY EACH EMPLOYEE THAT THE CONTRACT
VIOLATES THE ACT AND THAT PETITIONER "IS THEREFORE OBLIGED TO
DISCONTINUE SUCH CONTRACT AS A TERM OR CONDITION OF EMPLOYMENT; AND THE
EMPLOYEES ARE RELEASED FROM ITS OBLIGATIONS AND THE RESPONDENT
(PETITIONER HERE) WILL NO LONGER DEMAND ITS PERFORMANCE," AND THAT IT
"WILL NO LONGER OFFER, SOLICIT, ENTER INTO, CONTINUE, ENFORCE OR
ATTEMPT TO ENFORCE SUCH CONTRACTS WITH ITS EMPLOYEES." 

THE EFFECT OF THE BOARD'S ORDER, AS WE CONSTRUE IT, IS TO PRECLUDE
THE PETITIONER FROM TAKING ANY BENEFIT OF THE CONTRACTS WHICH WERE
PROCURED THROUGH VIOLATION OF THE ACT AND WHICH ARE THEMSELVES
CONTINUING MEANS OF VIOLATING IT, AND FROM CARRYING OUT ANY OF THE
CONTRACT PROVISIONS, THE EFFECT OF WHICH WOULD BE TO INFRINGE THE
RIGHTS GUARANTEED BY THE NATIONAL LABOR RELATIONS ACT.  IT DOES NOT
FORECLOSE THE EMPLOYEES FROM TAKING ANY ACTION TO SECURE AN
ADJUDICATION UPON THE CONTRACTS, NOR PREJUDGE THEIR RIGHTS IN THE EVENT
OF SUCH ADJUDICATION.  WE DO NOT NOW CONSIDER THEIR NATURE AND EXTENT. 
IT IS SUFFICIENT TO SAY HERE THAT IT WILL NOT BE OPEN TO ANY TRIBUNAL
TO COMPEL THE EMPLOYER TO PERFORM THE ACTS, WHICH, EVEN THOUGH HE HAS
BOUND HIMSELF BY CONTRACT TO DO THEM, WOULD VIOLATE THE BOARD'S ORDER
OR BE INCONSISTENT WITH ANY PART OF IT. SECTION 10(A) AND (C) OF THE
ACT COMMITS TO THE BOARD THE EXCLUSIVE POWER TO DECIDE WHETHER UNFAIR
LABOR PRACTICES HAVE BEEN COMMITTED AND TO DETERMINE THE ACTION THE
EMPLOYER MUST TAKE TO REMOVE OR AVOID THE CONSEQUENCES OF HIS UNFAIR
LABOR PRACTICE.    IN THESE RESPECTS THE ORDER DOES NOT GO BEYOND THOSE
IN SUITS BROUGHT BY THE UNITED STATES TO RESTRAIN VIOLATIONS OF THE
SHERMAN ACT, WHERE THE INJUNCTION WAS BROAD ENOUGH TO PREVENT THE
OFFENDER FROM CARRYING OUT CONTRACTS WITH PERSONS NOT PARTIES TO THE
SUITS.  UNITED SHOE MACHINERY CORP. V. UNITED STATES, 258 U.S. 451,
456; PARAMOUNT FAMOUS CORP. V. UNITED STATES, 282 U.S. 30; INTERSTATE
CIRCUIT, INC. V. UNITED STATES, 306 U.S. 208, 220.  SIMILARLY, IN
PROCEEDINGS BEFORE THE FEDERAL TRADE COMMISSION, THE ORDER RESTRAINING
UNFAIR METHODS OF COMPETITION MAY PRECLUDE THE PERFORMANCE OF
OUTSTANDING CONTRACTS BY THE OFFENDER.  SUCH ORDERS HAVE NEVER BEEN
CHALLENGED BECAUSE THE HOLDERS OF THE CONTRACTS WERE NOT MADE PARTIES. 
E.G. BUTTERICK CO. V. FEDERAL TRADE COMMISSION, 4 F.2D 910; Q.R.S.
MUSIC CO. V. FEDERAL TRADE COMMISSION, 12 F.2D 730; J.W. KOBI CO. V.
FEDERAL TRADE COMMISSION, 23 F.2D 41.  CF. FEDERAL TRADE COMMISSION V.
BEECH-NUT CO., 257 U.S. 441.  IN VIRGINIAN RAILWAY CO. V. SYSTEM
FEDERATION NO. 40, SUPRA, 539, 540; 11 F.SUPP.  621, 623, THE EFFECT OF
THE DECREE WAS TO ORDER THE EMPLOYER TO DEAL EXCLUSIVELY WITH THE
FEDERATION, ALTHOUGH THE EMPLOYER HAD A CONTRACT WITH AN ASSOCIATION
NOT A PARTY TO THE SUIT, FOUND TO BE A DOMINATED LABOR ORGANIZATION. 
IN EVERY CASE THE THIRD PERSONS WERE LEFT FREE TO ASSERT SUCH LEGAL
RIGHTS AS THEY MIGHT HAVE ACQUIRED UNDER THEIR CONTRACTS.  BUT IN ALL,
THE PUBLIC RIGHT WAS VINDICATED BY RESTRAINING THE UNLAWFUL ACTIONS OF
THE DEFENDANT EVEN THOUGH THE RESTRAINT PREVENTED HIS PERFORMANCE OF
THE CONTRACTS. 

AS THE NATIONAL LABOR RELATIONS ACT CONTEMPLATES NO MORE THAN THE
PROTECTION OF THE PUBLIC RIGHTS WHICH IT CREATES AND DEFINES, AND AS
THE BOARD'S ORDER IS DIRECTED SOLELY TO THE EMPLOYER AND IS INEFFECTIVE
TO DETERMINE ANY PRIVATE RIGHTS OF THE EMPLOYEES AND LEAVES THEM FREE
TO ASSERT SUCH LEGAL RIGHTS AS THEY MAY HAVE ACQUIRED UNDER THEIR
CONTRACTS, IN ANY APPROPRIATE TRIBUNAL, WE THINK THEY ARE NOT
INDISPENSABLE PARTIES FOR PURPOSES OF THE BOARD'S ORDER AND THE STATUTE
DOES NOT REQUIRE THEIR PRESENCE AS PARTIES TO THE PRESENT PROCEEDING
AND THERE WAS NO ABUSE OF THE BOARD'S DISCRETION IN ITS FAILURE TO MAKE
THEM PARTIES.  FN3  IT IS UNNECESSARY TO CONSIDER NOW TO WHAT EXTENT OR
BY WHAT PROCEDURE IT WOULD BE NECESSARY TO MAKE THE EMPLOYEES PARTIES
TO A PROCEEDING PENDING BEFORE THE BOARD IN THE EVENT THAT IT UNDERTOOK
TO MAKE AN ORDER DIRECTED TO THE EMPLOYEES FORECLOSING ANY ASSERTED
RIGHTS UNDER THEIR CONTRACTS IN ORDER TO EFFECTUATE THE POLICIES OF THE
ACT.  COMPARE THE PROCEDURE USED IN NEW ENGLAND DIVISIONS CASE, 261
U.S. 184, 197. 

THE BOARD'S ORDER TO POST NOTICES REQUIRES THE NOTICE TO ANNOUNCE
THAT THE CONTRACTS WITH THE EMPLOYEES ARE "VOID AND OF NO EFFECT."  IN
ORDER THAT THE NOTICE MAY MORE ACCURATELY REPRESENT THE AFFIRMATIVE
ACTION OF THE BOARD AND THAT MISINTERPRETATION OF ITS ACTION MAY BE
AVOIDED, THE ORDER APPEALED FROM SHOULD BE SO MODIFIED AS TO OMIT THE
QUOTED WORDS AND DIRECT THAT CLAUSE (3) OF THE BOARD'S ORDER, NUMBERED
2(D) SPECIFYING THE CONTENTS OF THE NOTICE, READ AS FOLLOWS: 

(3)  THAT THE INDIVIDUAL CONTRACTS OF EMPLOYMENT ENTERED INTO BETWEEN
THE RESPONDENT AND SOME OF ITS EMPLOYEES WERE MADE BY THE RESPONDENT IN
VIOLATION OF THE NATIONAL LABOR RELATIONS ACT; AND THAT THE RESPONDENT
WILL NO LONGER OFFER, SOLICIT, ENTER INTO, CONTINUE, ENFORCE, OR
ATTEMPT TO ENFORCE SUCH CONTRACTS WITH ITS EMPLOYEES; BUT THIS IS
WITHOUT PREJUDICE TO THE ASSERTION BY THE EMPLOYEES OF ANY LEGAL RIGHTS
THEY MAY HAVE ACQUIRED UNDER SUCH CONTRACTS. 

3.  THE AMENDED CHARGE, WHICH INITIATED THE PRESENT PROCEEDING
PURSUANT TO SEC. 10(B) OF THE ACT, WAS LODGED WITH THE BOARD BY THE
UNION ON AUGUST 2, 1937, BEFORE PETITIONER HAD SUCCEEDED IN ORGANIZING
THE COMMITTEE AND IN SECURING THE SIGNATURES OF ITS EMPLOYEES TO THE
CONTRACTS, BUT AFTER PETITIONER'S UNSUCCESSFUL ATTEMPT IN JULY TO DEAL
WITH ITS EMPLOYEES INDEPENDENTLY OF THE UNION.  THE CHARGE, IN ADDITION
TO OTHER UNFAIR LABOR PRACTICES NOT NOW MATERIAL, ALLEGED THAT
PETITIONER HAD "COERCED AND ATTEMPTED TO COERCE ITS EMPLOYEES INTO
SIGNING INDIVIDUAL CONTRACTS WITH THE SAID COMPANY; IN THAT THE SAID
COMPANY HAS CALLED MEETINGS OF ITS EMPLOYEES AND HAS COMPELLED SAID
EMPLOYEES TO ATTEND SAID MEETINGS, AND HAS ATTEMPTED TO COMPEL SAID
EMPLOYEES TO FORM COMMITTEES, NOT OF THEIR OWN CHOOSING, TO BARGAIN
COLLECTIVELY WITH THE SAID COMPANY; ...  " 

THE COMPLAINT ELABORATED THE CHARGE WITH PARTICULARITY, SETTING FORTH
THAT PETITIONER HAD FORMED AND INITIATED A LABOR ORGANIZATION OF ITS
EMPLOYEES, DOMINATED AND INTERFERED WITH THE ADMINISTRATION OF THAT
ORGANIZATION, AND HAD CONTINUED TO DO SO DOWN TO THE DATE OF THE
COMPLAINT, OCTOBER 2, 1937; THAT PETITIONER "HAS MADE SIGNING OF
INDIVIDUAL CONTRACTS A CONDITION OF EMPLOYMENT"; AND THAT BY THESE AND
OTHER ACTS PETITIONER "IS INTERFERING WITH, RESTRAINING, AND COERCING
ITS EMPLOYEES IN EXERCISE OF THE RIGHTS GUARANTEED BY SEC. 7 OF THE
ACT." 

PETITIONER CONTENDS THAT THE CHARGE IS A JURISDICTIONAL PREREQUISITE
TO THE COMPLAINT AND SUBSEQUENT PROCEEDINGS, AND THAT THEY ARE
RESTRICTED TO THE SPECIFIC UNFAIR LABOR PRACTICES ALLEGED IN THE
CHARGE.  SEE NATIONAL LABOR RELATIONS BOARD V. HOPWOOD RETINNING CO.,
98 F.2D 97.  IT ARGUES THAT IN THE PROCEEDINGS BEFORE THE BOARD THERE
WAS A FATAL DEPARTURE FROM THE CHARGE INSOFAR AS THE BOARD'S FINDING
AND ORDER ARE CONCERNED WITH THE SUBSEQUENT ORGANIZATION OF THE
COMMITTEE AND THE SIGNING OF THE EMPLOYEES' CONTRACTS.  THE ARGUMENT IS
ADDRESSED ONLY TO WANT OF POWER IN THE BOARD AND RAISES NO QUESTION OF
UNFAIRNESS TO PETITIONER IN THE PREPARATION AND PROSECUTION OF HIS
CASE. 

IT IS UNNECESSARY FOR US TO CONSIDER NOW HOW FAR THE STATUTORY
REQUIREMENT OF A CHARGE AS A CONDITION PRECEDENT TO A COMPLAINT
EXCLUDES FROM THE SUBSEQUENT PROCEEDINGS MATTERS EXISTING WHEN THE
CHARGE WAS FILED, BUT NOT INCLUDED IN IT.  WHATEVER RESTRICTIONS THE
REQUIREMENTS OF A CHARGE MAY BE THOUGHT TO PLACE UPON SUBSEQUENT
PROCEEDINGS BY THE BOARD, WE CAN FIND NO WARRANT IN THE LANGUAGE OR
PURPOSES OF THE ACT FOR SAYING THAT IT PRECLUDES THE BOARD FROM DEALING
ADEQUATELY WITH UNFAIR LABOR PRACTICES WHICH ARE RELATED TO THOSE
ALLEGED IN THE CHARGE AND WHICH GROW OUT OF THEM WHILE THE PROCEEDING
IS PENDING BEFORE THE BOARD.  THE VIOLATIONS ALLEGED IN THE COMPLAINT
AND FOUND BY THE BOARD WERE BUT A PROLONGATION OF THE ATTEMPT TO FORM
THE COMPANY UNION AND TO SECURE THE CONTRACTS ALLEGED IN THE CHARGE. 
ALL ARE OF THE SAME CLASS OF VIOLATIONS AS THOSE SET UP IN THE CHARGE
AND WERE CONTINUATIONS OF THEM IN PURSUANCE OF THE SAME OBJECTS.  THE
BOARD'S JURISDICTION HAVING BEEN INVOKED TO DEAL WITH THE FIRST STEPS,
IT HAD AUTHORITY TO DEAL WITH THOSE WHICH FOLLOWED AS A CONSEQUENCE OF
THOSE ALREADY TAKEN.  WE THINK THE COURT BELOW CORRECTLY HELD THAT "THE
BOARD WAS WITHIN ITS POWER IN TREATING THE WHOLE SEQUENCE AS ONE." 

WE FIND IT UNNECESSARY TO DISCUSS OTHER POINTS RAISED BY THE
PETITIONER.  WE HAVE CONSIDERED THEM AND FIND THEM WITHOUT MERIT. 

THE ORDER BELOW WILL BE MODIFIED AS DIRECTED BY THIS OPINION AND AS
SO MODIFIED IT WILL BE AFFIRMED. 

FN1  AN OFFICER OF PETITIONER ADMITTED THAT HE HAD CONSULTED WITH THE
BROOKLYN CHAMBER OF COMMERCE IN FORMING THE CONTRACTS.  THE CONTRACTS
INVOLVED HERE FOLLOW THE "BALLEISEN FORMULA," SAID TO BE DEVISED BY
L.L. BALLEISEN, INDUSTRIAL SECRETARY OF THE CHAMBER.  THE CONTRACT
"EXECUTED BETWEEN THE COMPANY AND EACH WORKMAN INDIVIDUALLY AND NOT AS
A COLLECTIVE AGREEMENT WITH REPRESENTATIVES OF THE EMPLOYEES, AS
PROVIDED BY THE ACT," NATIONAL LABOR RELATIONS BOARD V. HOPWOOD
RETINNING CO., 98 F.2D 97, 100, HAS BEEN HELD TO VIOLATE THE ACT IN
NATIONAL LABOR RELATIONS BOARD V. HOPWOOD RETINNING CO., SUPRA;
NATIONAL LABOR RELATIONS BOARD V. AMERICAN MFG. CO., 106 F.2D 61, 66;
MATTER OF ATLAS BAG & BURLAP CO., 1 N.L. R.B. 292; MATTER OF CATING
ROPE WORKS, INC., 4 N.L.R.B. 1100; MATTER OF METROPOLITAN ENGINEERING
CO., 4 N.L.R.B. 542; MATTER OF DAVID E. KENNEDY, INC., 6 N.L.R.B. 699;
MATTER OF ART CRAYON, INC., 7 N.L.R.B. 102; MATTER OF EASTERN FOOTWEAR
CORP., 8 N.L.R.B. 1245; MATTER OF AMERICAN NUMBERING MACHINE CO., 10
N.L.R.B. 536; MATTER OF CENTRE BRASS WORKS, INC., 10 N.L.R.B. 1060;
MATTER OF FANNY FARMER CANDY SHOPS, INC., 10 N.L.R.B. 288; MATTER OF
NATIONAL METER CO., 11 N.L.R.B. 320. 

FN2 PETITIONER'S BRIEF ASSAILS THE BOARD'S ORDER ON NUMEROUS GROUNDS
NOT SET UP IN HIS PETITION FOR CERTIORARI.  WE LIMIT OUR REVIEW TO THE
QUESTIONS SPECIFICALLY RAISED IN THE PETITION.  RULE 38.  SEE GENERAL
PICTURES CO. V. WESTERN ELECTRIC CO., 304 U.S. 175, 177, 178. 

FN3  ORDERS OF THE BOARD HAVE BEEN UPHELD WHICH DIRECT THE EMPLOYER
TO CEASE GIVING EFFECT TO SUCH CONTRACTS, ALTHOUGH NO NOTICE WAS GIVEN
TO THE COMPANY-DOMINATED LABOR ORGANIZATIONS OR THE EMPLOYEES. 
NATIONAL LABOR RELATIONS BOARD V. HOPWOOD RETINNING CO., 98 F.2D 97,
99, 100; NATIONAL LABOR RELATIONS BOARD V. EAGLE MFG. CO., 99 F.2D 930;
NATIONAL LABOR RELATIONS BOARD V. RONNI PARFUM, INC., 104 F.2D 1017;
NATIONAL LABOR RELATIONS BOARD V. STACKPOLE CARBON CO., 105 F.2D 167,
169; TITAN METAL MFG. CO. V. NATIONAL LABOR RELATIONS BOARD, 106 F.2D
254.  CONTRA:  NATIONAL LABOR RELATIONS BOARD V. COWELL PORTLAND CEMENT
CO., 108 F.2D 198; NATIONAL LABOR RELATIONS BOARD V. STERLING ELECTRIC
MOTORS, INC., 109 F.2D 194; 5 LABOR RELATIONS REPORTER 600. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE 

MR. JUSTICE DOUGLAS: 

MR. JUSTICE BLACK AND I SEE NO REASON OR OCCASION FOR THE
MODIFICATION OF THE ORDER.  FOR AS STATED IN THE OPINION OF THE COURT,
THE BOARD HAS NOT UNDERTAKEN TO PASS ON THE RIGHTS OF THE EMPLOYEES
UNDER THOSE CONTRACTS.  NOR HAS ANY EMPLOYEE URGED, HERE OR BELOW, THAT
THE ORDER AFFECTS HIS CONTRACTUAL RIGHTS OR CASTS A CLOUD ON THEM. 
WHETHER THE EMPLOYEES WOULD BE INDISPENSABLE PARTIES TO THE PROCEEDING
SHOULD THE BOARD IN ORDER TO EFFECTUATE THE POLICIES OF THE ACT
UNDERTAKE TO NULLIFY THEIR RIGHTS IS A QUESTION ON WHICH WE WANT TO
RESERVE DECISION UNTIL THE BOARD PASSES ON IT AND UNTIL IT IS PUT IN
ISSUE BY PERSONS WHO HAVE A STANDING TO RAISE IT.
..END :










SOUTH CHICAGO CO. V. BASSETT, 309 U.S. 251 


NO. 262.  ARGUED JANUARY 11, 1940.  - DECIDED FEBRUARY 26, 1940.  - 104
F.2D 522, AFFIRMED. 


1.  IN PROVIDING BY THE LONGSHOREMEN'S AND HARBOR WORKERS' ACT FOR
PAYMENT BY EMPLOYERS OF COMPENSATION FOR INJURIES OR DEATH SUFFERED BY
EMPLOYEES ENGAGED IN MARITIME EMPLOYMENT ON VESSELS IN NAVIGABLE
WATERS, CONGRESS EXERTED ITS CONSTITUTIONAL POWER TO MODIFY THE
ADMIRALTY LAW.  P. 256. 

2.  THE CLASSIFICATION EXCEPTING FROM THE ACT A "MASTER OR MEMBER OF
A CREW OF ANY VESSEL," SEC. 3(A)(1), WAS WITHIN THAT POWER.  P. 256. 

3.  THE ACT APPLIES TO THOSE WHO SERVE ON VESSELS AS LABORERS, WHOSE
WORK IS OF THE SORT PERFORMED BY LONGSHOREMEN AND HARBOR WORKERS, AND
WHO ARE THUS DISTINGUISHED FROM THOSE EMPLOYEES WHO ARE NATURALLY AND
PRIMARILY ON BOARD TO AID IN NAVIGATION.  P. 257. 

4.  IN SO FAR AS THE DECISION WHETHER AN INJURED EMPLOYEE WAS OR WAS
NOT A "MEMBER OF THE CREW" TURNS ON A QUESTION OF FACT, THE AUTHORITY
TO DETERMINE IS CONFERRED BY THE ACT ON THE DEPUTY COMMISSIONER, AND
HIS FINDING, IF SUSTAINED BY EVIDENCE, IS CONCLUSIVE AND MUST BE
ACCEPTED BY THE DISTRICT COURT WITHOUT ATTEMPTING A NEW TRIAL.  P.
257. 

5.  THE LEGAL MEANING OF THE WORD "CREW" MUST BE DETERMINED WITH
REFERENCE TO THE CONTEXT AND PURPOSE OF THE PARTICULAR STATUTE IN WHICH
THE WORD IS USED.  P. 258. 

6.  THE FACT THAT THE BOAT'S CAPTAIN, TO MAKE UP THE COMPLEMENT OF
"DECKHANDS" REQUIRED BY A CERTIFICATE OF INSPECTION, INCLUDED THE
EMPLOYEE WHOSE STATUS UNDER THIS ACT IS IN QUESTION DOES NOT FIX HIS
STATUS AS THAT OF A MEMBER OF THE CREW.  THE QUESTION CONCERNS HIS
ACTUAL DUTIES.  P. 260. 

7.  EVIDENCE HELD SUFFICIENT TO SUSTAIN A FINDING BY A DEPUTY
COMMISSIONER THAT THE PERSON ON ACCOUNT OF WHOSE DEATH COMPENSATION WAS
CLAIMED UNDER THE ABOVE-MENTIONED ACT WAS NOT A MEMBER OF THE CREW.  P.
260. 

SOUTH CHICAGO COAL & DOCK CO. ET AL. V. BASSETT, DEPUTY COMMISSIONER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 308 U.S. 532, TO REVIEW THE REVERSAL OF A JUDGMENT OF THE
DISTRICT COURT VACATING AN AWARD UNDER THE LONGSHOREMEN'S AND HARBOR
WORKERS' ACT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

JOHN SCHUMANN, AN EMPLOYEE OF PETITIONER, SOUTH CHICAGO COAL & DOCK
COMPANY, WAS DROWNED WHILE SERVING HIS EMPLOYER ON A VESSEL IN
NAVIGABLE WATERS OF THE UNITED STATES.  HIS WIDOW WAS AWARDED
COMPENSATION BY THE DEPUTY COMMISSIONER UNDER THE LONGSHOREMEN'S AND
HARBOR WORKER'S COMPENSATION ACT.  FN1  THE DEPUTY COMMISSIONER FOUND
THAT DECEDENT WAS PERFORMING SERVICES ON THE VESSEL AS A LABORER AND
FELL FROM THE VESSEL INTO THE WATER.  THE EMPLOYER AND ITS SURETY
BROUGHT SUIT IN THE DISTRICT COURT TO RESTRAIN THE ENFORCEMENT OF THE
AWARD, CONTENDING THAT DECEDENT WAS EMPLOYED AS A MEMBER OF THE CREW
AND HENCE THAT COMPENSATION WAS NOT PAYABLE.  THE DISTRICT COURT
GRANTED A TRIAL DE NOVO AND FINDING THAT THE DECEDENT WAS A MEMBER OF
THE CREW VACATED THE AWARD. 

THE COURT OF APPEALS FOUND THAT THE EVIDENCE BEFORE THE DISTRICT
COURT WAS SIMILAR TO THAT HEARD BY THE DEPUTY COMMISSIONER; THAT THE
FACTS WERE NOT IN DISPUTE; THAT THE DISTRICT COURT IN REVIEWING THE
FINDING OF THE DEPUTY COMMISSIONER WAS PRECLUDED FROM WEIGHING THE
EVIDENCE, BEING REQUIRED TO EXAMINE THE RECORD AND ASCERTAIN WHETHER
THERE WAS ANY EVIDENCE TO SUPPORT THE COMMISSIONER'S FINDING.  HOLDING
THAT THERE WAS SUCH EVIDENCE, THE COURT OF APPEALS REVERSED THE DECREE
OF THE DISTRICT COURT AND DIRECTED THE DISMISSAL OF THE BILL OF
COMPLAINT.  104 F.2D 522.  BECAUSE OF AN ALLEGED CONFLICT WITH A
DECISION OF THE COURT OF APPEALS OF THE FIFTH CIRCUIT IN THE CASE OF
MARYLAND CASUALTY CO. V. LAWSON, 94 F.2D 190, WE GRANTED CERTIORARI,
308 U.S. 532. 

THE STATUTE PROVIDES SPECIFICALLY IN SEC. 3 AS TO "COVERAGE," THAT NO
COMPENSATION SHALL BE PAYABLE IN RESPECT OF THE DISABILITY OR DEATH OF
A "MASTER OR MEMBER OF A CREW OF ANY VESSEL."  FN2  AND THESE PERSONS
WERE EXCLUDED FROM THE DEFINITION OF THE TERM EMPLOYEE.  SEC. 2(3). 
FN3 

IT APPEARS THAT THE VESSEL WAS A LIGHTER OF 312 NET TONS USED FOR
FUELING STEAMBOATS AND OTHER MARINE EQUIPMENT.  IT WAS LICENSED TO
OPERATE IN THE CALUMET RIVER AND HARBOR AND IN THE INDIANA RIVER AND
HARBOR.  THE COURT OF APPEALS THUS SUMMARIZED ITS OPERATIONS:  "IT
SUPPLIED COAL TO OTHER VESSELS ON THEIR ORDER, EACH OPERATION CONSUMING
ONLY A COUPLE OF HOURS.  IT HAD NO SLEEPING OR EATING QUARTERS.  ITS
CERTIFICATES OF INSPECTION REQUIRED THAT 'INCLUDED IN THE ENTIRE CREW
HEREINAFTER SPECIFIED AND DESIGNATED THERE MUST BE 1 LICENSED MASTER
AND PILOT, 1 LICENSED CHIEF ENGINEER, THREE SEAMEN, 1 FIREMAN'.  IF
DECEASED WERE COUNTED AS A MEMBER OF THE CREW, THE FULL COMPLEMENT OF
THE SHIP WAS PRESENT.  OTHERWISE NOT."  THE CAPTAIN TESTIFIED BEFORE
THE DEPUTY COMMISSIONER THAT HE HAD FIVE MEN ON THE BOAT WITH HIM, ONE
ENGINEER, FIREMAN AND THREE "DECKHANDS," THE DECEDENT BEING ONE OF THE
LATTER.  THE COURT OF APPEALS DESCRIBED HIS CHIEF TASK AS "FACILITATING
THE FLOW OF COAL FROM HIS BOAT TO THE VESSEL BEING FUELED - REMOVING
OBSTRUCTIONS TO THE FLOW WITH A STICK.  HE PERFORMED SUCH ADDITIONAL
TASKS AS THROWING THE SHIP'S ROPE IN RELEASING OR MAKING THE BOAT
FAST.  HE PERFORMED NO NAVIGATION DUTIES.  HE OCCASIONALLY DID SOME
CLEANING OF THE BOAT.  HE DID NO WORK WHILE THE BOAT WAS EN ROUTE FROM
DOCK TO THE VESSEL TO BE FUELED."  THE COURT OF APPEALS THOUGHT IT
SIGNIFICANT THAT HIS ONLY DUTY RELATING TO NAVIGATION WAS THE
INCIDENTAL TASK OF THROWING THE SHIP'S LINE; THAT HIS PRIMARY DUTY WAS
TO FREE THE COAL IF IT STUCK IN THE HOPPER WHILE BEING DISCHARGED INTO
THE FUELED VESSEL WHILE BOTH BOATS WERE AT REST; THAT HE HAD NO DUTIES
WHILE THE BOAT WAS IN MOTION; THAT HE WAS PAID AN HOURLY WAGE; THAT HE
HAD NO "ARTICLES"; THAT HE SLEPT AT HOME AND BOARDED OFF SHIP; THAT HE
WAS CALLED VERY EARLY IN THE MORNING EACH DAY AS HE WAS WANTED; THAT
WHILE HE HAD WORKED ONLY THREE WEEKS, AND IT MIGHT HAVE BEEN POSSIBLE
THAT HE WOULD HAVE BEEN RETAINED FOR YEARS TO COME, HIS EMPLOYMENT WAS
SOMEWHAT AKIN TO TEMPORARY EMPLOYMENT. 

IN NOGUEIRA V. NEW YORK, N.H. & H.R. CO., 281 U.S. 128, WE HAD
OCCASION TO CONSIDER THE PURPOSE AND SCOPE OF THE LONGSHOREMEN'S AND
HARBOR WORKERS' COMPENSATION ACT.  ITS GENERAL SCHEME WAS TO PROVIDE
COMPENSATION TO EMPLOYEES ENGAGED IN MARITIME EMPLOYMENT, EXCEPT AS
STATED, FOR DISABILITY OR DEATH RESULTING FROM INJURY OCCURRING UPON
THE NAVIGABLE WATERS OF THE UNITED STATES WHERE RECOVERY THROUGH
WORKMEN'S COMPENSATION PROCEEDINGS MIGHT NOT VALIDLY BE PROVIDED BY
STATE LAW.  WE HAD HELD THAT ONE ENGAGED AS A STEVEDORE IN LOADING A
SHIP LYING IN PORT IN NAVIGABLE WATERS WAS PERFORMING A MARITIME
SERVICE AND THAT THE RIGHTS AND LIABILITIES OF THE PARTIES WERE MATTERS
WITHIN THE ADMIRALTY JURISDICTION.  ATLANTIC TRANSPORT CO. V. IMBROVEK,
234 U.S. 52.  BUT THE COURT HAD ALSO HELD THAT IN THE CASE OF A
LONGSHOREMAN WHO WAS INJURED ON THE LAND, ALTHOUGH ENGAGED IN UNLOADING
A VESSEL, THE LOCAL LAW GOVERNED AND HENCE THE WORKMEN'S COMPENSATION
LAW OF THE STATE APPLIED.  STATE INDUSTRIAL COMMISSION V. NORDENHOLT
CORPORATION, 259 U.S. 263.  THE DISTINCTION HAD THUS BEEN MAINTAINED
BETWEEN INJURIES ON LAND AND THOSE SUFFERED BY PERSONS ENGAGED IN
MARITIME EMPLOYMENT ON A VESSEL IN NAVIGABLE WATERS.  AS TO THE LATTER,
NO DOUBT WAS ENTERTAINED OF THE POWER OF CONGRESS TO MODIFY THE
ADMIRALTY LAW AND TO PROVIDE FOR THE PAYMENT BY EMPLOYERS OF
COMPENSATION.  FN4  AND IN THUS PROVIDING, CONGRESS HAD CONSTITUTIONAL
AUTHORITY TO DEFINE THE CLASSES OF SUCH EMPLOYEES WHO SHOULD RECEIVE
COMPENSATION AND TO EXCLUDE THOSE DESCRIBED IN SEC. 3.  NOGUEIRA V. NEW
YORK, N.H. & H.R. CO., SUPRA. 

THE LEGISLATIVE HISTORY OF THE EXCEPTION NOW BEFORE US THROWS LIGHT
UPON THE INTENTION OF CONGRESS.  FOR THOSE EMPLOYEES WHO ARE ENTITLED
TO COMPENSATION, THE REMEDY UNDER THE ACT IS EXCLUSIVE.  SEC. 5.  FN5
THIS MADE INAPPLICABLE TO SUCH EMPLOYEES THE PROVISION OF SEC. 33 OF
THE MERCHANTS MARINE ACT (CALLED THE JONES ACT) WHICH CARRIED TO
"SEAMEN" AT THEIR ELECTION THE BENEFIT OF THE PROVISIONS OF THE FEDERAL
EMPLOYERS' LIABILITY ACT.  FN6  THE BILL, WHICH BECAME THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT, WAS AT ONE STAGE
AMENDED SO AS TO INCLUDE A MASTER AND MEMBERS OF A CREW OF A VESSEL
OWNED BY A CITIZEN OF THE UNITED STATES.  FN7  THEY PREFERRED HOWEVER
TO REMAIN OUTSIDE THE COMPENSATION PROVISIONS AND THUS TO RETAIN THE
ADVANTAGES OF THEIR ELECTION UNDER THE JONES ACT, AND THE BILL WAS
CHANGED ACCORDINGLY SO AS TO EXEMPT "SEAMEN."  THEN, IN ITS FINAL
PASSAGE, THE WORDS "A MASTER OR MEMBER OF A CREW" WERE SUBSTITUTED FOR
"SEAMEN."  FN8  WE THINK THAT THIS SUBSTITUTION HAS AN IMPORTANT
SIGNIFICANCE HERE.  FOR WE HAD HELD THAT LONGSHOREMEN ENGAGED ON A
VESSEL AT A DOCK IN NAVIGABLE WATERS, IN THE WORK OF LOADING OR
UNLOADING, WERE "SEAMEN."  INTERNATIONAL STEVEDORING CO. V. HAVERTY,
272 U.S. 50; NORTHERN COAL CO. V. STRAND, 278 U.S. 142.  AND, ALSO,
THAT SUCH SEAMEN IF INJURED ON A VESSEL IN NAVIGABLE WATERS, UNLIKE ONE
INJURED ON LAND, COULD NOT HAVE THE BENEFIT OF A STATE WORKMEN'S
COMPENSATION ACT.  SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205.  WE
THINK IT IS CLEAR THAT CONGRESS IN FINALLY ADOPTING THE PHRASE "A
MASTER OR MEMBER OF A CREW" IN MAKING ITS EXCEPTION, INTENDED TO LEAVE
ENTITLED TO COMPENSATION ALL THOSE VARIOUS SORTS OF LONGSHOREMEN AND
HARBOR WORKERS WHO WERE PERFORMING LABOR ON A VESSEL  FN9  AND TO WHOM
STATE COMPENSATION STATUTES WERE INAPPLICABLE.  THE QUESTION IS WHETHER
THE DECEDENT IN THIS INSTANCE FELL WITHIN THAT CLASS. 

SO FAR AS THE DECISION THAT THIS EMPLOYEE, WHO WAS AT WORK ON THIS
VESSEL IN NAVIGABLE WATERS WHEN HE SUSTAINED HIS INJURIES, WAS OR WAS
NOT "A MEMBER OF A CREW" TURNS ON QUESTIONS OF FACT, THE AUTHORITY TO
DETERMINE SUCH QUESTIONS HAS BEEN CONFIDED BY CONGRESS TO THE DEPUTY
COMMISSIONER.  FN10  HENCE THE COURT OF APPEALS CORRECTLY RULED THAT
HIS FINDING, IF THERE WAS EVIDENCE TO SUPPORT IT, WAS CONCLUSIVE AND
THAT IT WAS THE DUTY OF THE DISTRICT COURT TO ASCERTAIN WHETHER IT WAS
SO SUPPORTED AND, IF SO, TO GIVE IT EFFECT WITHOUT ATTEMPTING A
RETRIAL.  WE HAVE SO HELD WITH RESPECT TO THE CONCLUSIVENESS OF THE
FINDING OF THE DEPUTY COMMISSIONER THAT AN INJURY TO AN EMPLOYEE AROSE
"OUT OF AND IN THE COURSE OF THE EMPLOYMENT," VOEHL V. INDEMNITY
INSURANCE CO., 288 U.S. 162, 166; AS TO THE FINDING OF THE DEPENDENCY
OF A CLAIMANT FOR COMPENSATION, L'HOTE V. CROWELL, 286 U.S. 528, THE
ADMIRAL PEOPLES, 295 U.S. 649, 653, 654; AND AS TO THE FINDING THAT THE
EMPLOYEE HAD COMMITTED SUICIDE AND HENCE THAT COMPENSATION WAS NOT
PAYABLE, DEL VECCHIO V. BOWERS, 296 U.S. 280, 287.  IN THE DEL VECCHIO
CASE THE QUESTION WAS WITH RESPECT TO THE APPLICATION OF THE EXCEPTION
MADE BY PARAGRAPH (B) OF SEC. 3 WITH RESPECT TO "COVERAGE," AND WE SEE
NO REASON FOR A DIFFERENT VIEW AS TO THE APPLICATION OF PARAGRAPH
(A)(1) OF THE SAME SECTION. 

PETITIONERS URGE THAT THE QUESTION WHETHER THE DECEDENT WAS A MEMBER
OF A "CREW" WAS A QUESTION OF LAW.  THAT IS, THAT UPON THE UNDISPUTED
FACTS THE DECEDENT MUST BE HELD AS A MATTER OF LAW TO HAVE BEEN A
MEMBER OF A "CREW" AS DISTINGUISHED FROM A LONGSHOREMAN OR LABORER AT
WORK UPON THE VESSEL.  WE ARE UNABLE SO TO CONCLUDE. 

THE WORD "CREW" DOES NOT HAVE AN ABSOLUTELY UNVARYING LEGAL
SIGNIFICANCE.  AS MR. JUSTICE STORY SAID IN UNITED STATES V. WINN, 3
SUMN.  209,  FN11  THE GENERAL SENSE OF THE WORD CREW IS "EQUIVALENT TO
SHIP'S COMPANY" WHICH WOULD EMBRACE ALL THE OFFICERS AS WELL AS THE
COMMON SEAMEN.  BUT IT WAS OBSERVED THAT THE LAWS UPON MARITIME
SUBJECTS SOMETIMES USED THE WORD CREW IN THAT GENERAL SENSE AND
"SOMETIMES IN OTHER SENSES, MORE LIMITED AND RESTRAINED."  "IT IS
SOMETIMES USED TO COMPREHEND ALL PERSONS COMPOSING THE SHIP'S COMPANY,
INCLUDING THE MASTER; SOMETIMES TO COMPREHEND THE OFFICERS AND COMMON
SEAMEN, EXCLUDING THE MASTER; AND SOMETIMES TO COMPREHEND THE COMMON
SEAMEN ONLY, EXCLUDING THE MASTER AND OFFICERS."  IT WAS THEREFORE
DEEMED NECESSARY TO CONSIDER THE CONTEXT OF THE PARTICULAR USE OF THE
TERM AND THE OBJECT TO BE ACCOMPLISHED BY THE ENACTMENT UNDER
CONSIDERATION.  IN THE BOUND BROOK, 146 F. 160, 164, IT WAS SAID THAT
"WHEN THE 'CREW' OF A VESSEL IS REFERRED TO, THOSE PERSONS ARE
NATURALLY AND PRIMARILY MEANT WHO ARE ON BOARD HER AIDING IN HER
NAVIGATION, WITHOUT REFERENCE TO THE NATURE OF THE ARRANGEMENT UNDER
WHICH THEY ARE ON BOARD."  JUDGE HOUGH IN THE BUENA VENTURA, 243 F.
797, 799, THOUGHT THAT STATEMENT WAS A FAIR SUMMARY, AND IN HIS VIEW
ONE WHO SERVED THE SHIP "IN HER NAVIGATION" WAS A MEMBER OF THE
"CREW."  ID., P. 800.  SEE, ALSO, SENECA GRAVEL CO. V. MCMANIGAL, 65
F.2D 779.  RECENTLY, IN CONSIDERING THE APPLICATION OF THE JONES ACT TO
"ANY SEAMAN," WE ADVERTED TO THE "RANGE OF VARIATION" IN THE USE OF THE
WORD "CREW," AND IT WAS AGAIN EMPHASIZED THAT WHAT CONCERNED US IN THAT
CASE, WHICH HAD RELATION TO THE STATUS OF A "MASTER," WAS "NOT THE
SCOPE OF THE CLASS OF SEAMEN AT OTHER TIMES AND IN OTHER CONTEXTS."  WE
SAID THAT OUR CONCERN THERE WAS "TO DEFINE THE MEANING FOR THE PURPOSE
OF A PARTICULAR STATUTE WHICH MUST BE READ IN THE LIGHT OF THE MISCHIEF
TO BE CORRECTED AND THE END TO BE ATTAINED."  WARNER V. GOLTRA, 293
U.S. 155, 158. 

THAT IS OUR CONCERN HERE IN CONSTRUING THIS PARTICULAR STATUTE - THE
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT - WITH APPROPRIATE
REGARD TO ITS DISTINCTIVE AIM.  WE FIND LITTLE AID IN CONSIDERING THE
USE OF THE TERM "CREW" IN OTHER STATUTES HAVING OTHER PURPOSES.  THIS
ACT, AS WE HAVE SEEN, WAS TO PROVIDE COMPENSATION FOR A CLASS OF
EMPLOYEES AT WORK ON A VESSEL IN NAVIGABLE WATERS WHO, ALTHOUGH THEY
MIGHT BE CLASSED AS SEAMEN (INTERNATIONAL STEVEDORING CO. V. HAVERTY,
SUPRA), WERE STILL REGARDED AS DISTINCT FROM MEMBERS OF A "CREW."  THEY
WERE PERSONS SERVING ON VESSELS, TO BE SURE, BUT THEIR SERVICE WAS THAT
OF LABORERS, OF THE SORT PERFORMED BY LONGSHOREMEN AND HARBOR WORKERS
AND THUS DISTINGUISHED FROM THOSE EMPLOYEES ON THE VESSEL WHO ARE
NATURALLY AND PRIMARILY ON BOARD TO AID IN HER NAVIGATION.  SEE DE WALD
V. BALTIMORE & OHIO R. CO., 71 F.2D 810; DIOMEDE V. LOWE, 87 F.2D 296;
MOORE DRY DOCK CO. V. PILLSBURY, 100 F.2D 245. 

REGARDING THE WORD "CREW" IN THIS STATUTE AS REFERRING TO THE LATTER
CLASS, WE THINK THERE WAS EVIDENCE TO SUPPORT THE FINDING OF THE DEPUTY
COMMISSIONER.  THE FACT THAT THE CERTIFICATE OF INSPECTION CALLED FOR
THREE "DECKHANDS" AND THAT THE CAPTAIN INCLUDED THE DECEDENT TO MAKE UP
THAT COMPLEMENT IS NOT CONTROLLING.  THE QUESTION CONCERNS HIS ACTUAL
DUTIES.  THESE DUTIES, AS THE COURT OF APPEALS SAID, DID NOT PERTAIN TO
NAVIGATION, ASIDE FROM THE INCIDENTAL TASK OF THROWING THE SHIP'S ROPE
OR MAKING THE BOAT FAST, A SERVICE OF THE SORT WHICH COULD READILY BE
PERFORMED OR AIDED BY A HARBOR WORKER.  WHAT THE COURT CONSIDERED AS
SUPPORTING THE FINDING OF THE DEPUTY COMMISSIONER WAS THAT THE PRIMARY
DUTY OF THE DECEDENT WAS TO FACILITATE THE FLOW OF COAL TO THE VESSEL
BEING FUELED, THAT HE HAD NO DUTIES WHILE THE BOAT WAS IN MOTION, THAT
HE SLEPT AT HOME AND BOARDED OFF SHIP AND WAS CALLED EACH DAY AS HE WAS
WANTED AND WAS PAID AN HOURLY WAGE.  WORKERS OF THAT SORT ON HARBOR
CRAFT MAY APPROPRIATELY BE REGARDED AS "IN THE POSITION OF LONGSHOREMEN
OR OTHER CASUAL WORKERS ON THE WATER."  SCHEFFLER V. MORAN TOWING CO.,
68 F.2D 11, 12.  EVEN IF IT COULD BE SAID THAT THE EVIDENCE PERMITTED
CONFLICTING INFERENCES, WE THINK THAT THERE WAS ENOUGH TO SUSTAIN THE
DEPUTY COMMISSIONER'S RULING.    THE JUDGMENT OF THE COURT OF APPEALS
IS AFFIRMED. 

FN1  44 STAT. 1424; 33 U.S.C. AND U.S.C. SUPP. IV, SECS. 901, ET
SEQ.    FN2  THE ENTIRE TEXT OF SEC. 3 IS AS FOLLOWS: 

"SEC. 3.  COVERAGE.  - (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 DRYDOCK) AND IF
RECOVERY FOR THE DISABILITY OR DEATH THROUGH WORKMEN'S COMPENSATION
PROCEEDINGS MAY NOT VALIDLY BE PROVIDED BY STATE LAW.  NO COMPENSATION
SHALL BE PAYABLE IN RESPECT OF THE DISABILITY OR DEATH OF - 

"(1)  A MASTER OR MEMBER OF A CREW OF ANY VESSEL, NOR ANY PERSON
ENGAGED BY THE MASTER TO LOAD OR UNLOAD OR REPAIR ANY SMALL VESSEL
UNDER EIGHTEEN TONS NET; OR 

"(2)  AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR ANY AGENCY
THEREOF OR OF ANY STATE OR FOREIGN GOVERNMENT, OR OF ANY POLITICAL
SUBDIVISION THEREOF. 

"(B)  NO COMPENSATION SHALL BE PAYABLE IF THE INJURY WAS OCCASIONED
SOLELY BY THE INTOXICATION OF THE EMPLOYEE OR BY THE WILLFUL INTENTION
OF THE EMPLOYEE TO INJURE OR KILL HIMSELF OR ANOTHER."  33 U.S.C. 903. 

FN3  33 U.S.C. 902(3). 

FN4  SEE WARING V. CLARKE, 5 HOW.  441, 457, 458; THE LOTTAWANNA, 21
WALL.  558, 577; BUTLER V. BOSTON STEAMSHIP CO., 130 U.S. 527, 556,
557; IN RE GARNETT, 141 U.S. 1, 14; ATLANTIC TRANSPORT CO. V. IMBROVEK,
234 U.S. 52, 60, 62; SOUTHERN PACIFIC CO. V. JENSEN, 244 U.S. 205, 215;
WASHINGTON V. DAWSON & CO., 264 U.S. 219, 227, 228; PANAMA RAILROAD CO.
V. JOHNSON, 264 U.S. 375, 386, 388; NOGUEIRA V. NEW YORK, N.H. & H.R.
CO., 281 U.S. 128, 138. 

FN5  33 U.S.C. 905. 

FN6  41 STAT. 1007. 

FN7  HOUSE REP. NO. 1767, 69TH CONG., 2D SESS., PP. 1, 2, 20. 

FN8  CONG. REC., 69TH CONG., 2D SESS., VOL. 68, PT. 5, PP. 5402,
5403, 5908; NOGUEIRA V. NEW YORK, N.H. & H.R. CO., 281 U.S. 128, 136. 

FN9  EXCEPT WHERE THEY ARE ENGAGED "TO LOAD OR UNLOAD OR REPAIR ANY
SMALL VESSEL UNDER EIGHTEEN TONS NET."  SEC. 3(A)(1), 33 U.S.C.
903(A)(1). 

FN10  33 U.S.C. 919(A), 921. 

FN11  28 FED. CAS. 733, CASE NO. 16,740. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :























AMALGAMATED WORKERS V. EDISON CO., 309 U.S. 261 


NO. 342.  ARGUED JANUARY 31, 1940.  - DECIDED FEBRUARY 26, 1940.  - 106
F.2D 991, AFFIRMED. 


UNDER THE NATIONAL LABOR RELATIONS ACT, THE AUTHORITY TO APPLY TO THE
CIRCUIT COURT OF APPEALS TO HAVE AN EMPLOYER ADJUDGED IN CONTEMPT FOR
FAILURE TO OBEY A DECREE ENFORCING AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD LIES EXCLUSIVELY IN THE BOARD ITSELF, ACTING AS A
PUBLIC AGENCY.  A LABOR ORGANIZATION HAS NO STANDING TO MAKE SUCH AN
APPLICATION IN VIRTUE OF HAVING FILED THE CHARGES UPON WHICH THE
BOARD'S PROCEEDINGS WERE INITIATED.  P. 269. 

AMALGAMATED UTILITY WORKERS (C.I.O.)  V. CONSOLIDATED EDISON CO. OF
NEW YORK ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 308 U.S. 541, TO REVIEW THE DENIAL OF AN APPLICATION FOR
A CONTEMPT ORDER. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD ORDERED THE CONSOLIDATED EDISON
COMPANY OF NEW YORK AND ITS AFFILIATED COMPANIES TO DESIST FROM CERTAIN
LABOR PRACTICES FOUND TO BE UNFAIR AND TO TAKE CERTAIN AFFIRMATIVE
ACTION.  THE CIRCUIT COURT OF APPEALS GRANTED THE BOARD'S PETITION FOR
ENFORCEMENT OF THE ORDER, AND ITS DECREE, AS MODIFIED, WAS AFFIRMED BY
THIS COURT.  305 U.S. 197.  PETITIONER, AMALGAMATED UTILITY WORKERS,
BROUGHT THE PRESENT PROCEEDING BEFORE THE CIRCUIT COURT OF APPEALS TO
HAVE THE CONSOLIDATED EDISON COMPANY AND ITS AFFILIATED COMPANIES
ADJUDGED IN CONTEMPT FOR FAILURE TO COMPLY WITH CERTAIN REQUIREMENTS OF
THE DECREE. 

THE BOARD, IN RESPONSE TO THE MOTION, ASSERTED ITS WILLINGNESS TO
PARTICIPATE IN AN INVESTIGATION TO ASCERTAIN WHETHER ACTS IN VIOLATION
OF THE DECREE HAD BEEN COMMITTED AND SUGGESTED THAT THE COURT DIRECT
SUCH INVESTIGATION AS MIGHT BE DEEMED APPROPRIATE. 

THE COURT OF APPEALS DENIED THE APPLICATION UPON THE GROUND THAT
PETITIONER HAD "NO STANDING TO PRESS A CHARGE OF CIVIL CONTEMPT, IF
CONTEMPT HAS BEEN COMMITTED."  THE COURT HELD THAT UNDER THE NATIONAL
LABOR RELATIONS ACT "THE BOARD IS THE PROPER PARTY TO APPLY TO THE
COURT FOR AN ORDER OF ENFORCEMENT AND TO PRESENT TO THE COURT CHARGES
THAT THE COURT'S ORDER HAS NOT BEEN OBEYED."  106 F.2D 991.  IN VIEW OF
THE IMPORTANCE OF THE QUESTION IN RELATION TO THE PROPER ADMINISTRATION
OF THE NATIONAL LABOR RELATIONS ACT, WE GRANTED CERTIORARI.  308 U.S.
541. 

PETITIONER CONTENDS THAT THE NATIONAL LABOR RELATIONS ACT  FN1
"CREATES PRIVATE RIGHTS"; THAT THE ACT RECOGNIZES THE RIGHTS OF LABOR
ORGANIZATIONS; AND THAT IT GIVES THE PARTIES UPON WHOM THESE RIGHTS ARE
CONFERRED STATUS IN THE COURTS FOR THEIR VINDICATION.  IN SUPPORT OF
ITS ALLEGED STANDING, PETITIONER URGES THAT UNDER ITS FORMER NAME
(UNITED ELECTRICAL AND RADIO WORKERS OF AMERICA) IT FILED WITH THE
NATIONAL LABOR RELATIONS BOARD CHARGES AGAINST THE RESPONDENT
COMPANIES, AND THAT IT WAS UPON THESE CHARGES THAT THE BOARD ISSUED ITS
COMPLAINT AND HELD THE HEARING WHICH RESULTED IN THE ORDER IN
QUESTION.  ALSO, THAT PETITIONER WAS PERMITTED TO INTERVENE IN THE
PROCEEDINGS BEFORE THE CIRCUIT COURT OF APPEALS WHERE THE COMPANIES HAD
MOVED TO SET ASIDE THE BOARD'S ORDER AND THE BOARD HAD MOVED TO ENFORCE
IT; AND THAT THE PETITIONER HAD ALSO BEEN HEARD IN THIS COURT IN THE
CERTIORARI PROCEEDINGS FOR REVIEW OF THE DECREE OF ENFORCEMENT. 

PETITIONER INVOKES THE STATEMENT IN SEC. 1 OF THE ACT OF "FINDINGS
AND POLICY," WITH RESPECT TO THE EFFECT OF THE DENIAL BY EMPLOYERS OF
THE RIGHT OF EMPLOYEES TO ORGANIZE AND TO BARGAIN COLLECTIVELY, AND IN
PARTICULAR THE PROVISION OF SEC. 7  FN2  THAT "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 CONCERTED ACTIVITIES, FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION." 

NEITHER THIS PROVISION, NOR ANY OTHER PROVISION OF THE ACT, CAN
PROPERLY BE SAID TO HAVE "CREATED" THE RIGHT OF SELF-ORGANIZATION OR OF
COLLECTIVE BARGAINING THROUGH REPRESENTATIVES OF THE EMPLOYEES' OWN
CHOOSING.  IN NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1, 33, 34, WE OBSERVED THAT THIS RIGHT IS A FUNDAMENTAL
ONE; THAT EMPLOYEES "HAVE AS CLEAR A RIGHT TO ORGANIZE AND SELECT THEIR
REPRESENTATIVES FOR LAWFUL PURPOSES" AS THE EMPLOYER HAS "TO ORGANIZE
ITS BUSINESS AND SELECT ITS OWN OFFICERS AND AGENTS"; THAT
DISCRIMINATION AND COERCION "TO PREVENT THE FREE EXERCISE OF THE RIGHT
OF EMPLOYEES TO SELF-ORGANIZATION AND REPRESENTATION" WAS A PROPER
SUBJECT FOR CONDEMNATION BY COMPETENT LEGISLATIVE AUTHORITY.  WE NOTED
THAT "LONG AGO" WE HAD STATED THE REASON FOR LABOR ORGANIZATIONS,  -
THAT THROUGH UNITED ACTION EMPLOYEES MIGHT HAVE "OPPORTUNITY TO DEAL ON
AN EQUALITY WITH THEIR EMPLOYER," REFERRING TO WHAT WE HAD SAID IN
AMERICAN STEEL FOUNDRIES V. TRICITY CENTRAL COUNCIL, 257 U.S. 184,
209.  AND IN RECOGNITION OF THIS RIGHT, WE CONCLUDED THAT CONGRESS
COULD SAFEGUARD IT IN THE INTEREST OF INTERSTATE COMMERCE AND SEEK TO
MAKE APPROPRIATE COLLECTIVE ACTION "AN INSTRUMENT OF PEACE RATHER THAN
OF STRIFE."  TO THAT END CONGRESS ENACTED THE NATIONAL LABOR RELATIONS
ACT. 

TO ATTAIN ITS OBJECT CONGRESS CREATED A PARTICULAR AGENCY, THE
NATIONAL LABOR RELATIONS BOARD, AND ESTABLISHED A SPECIAL PROCEDURE. 
THE AIM, CHARACTER AND SCOPE OF THAT SPECIAL PROCEDURE ARE
DETERMINATIVE OF THE QUESTION NOW BEFORE US.  WITHIN THE RANGE OF ITS
CONSTITUTIONAL POWER, CONGRESS WAS ENTITLED TO DETERMINE WHAT REMEDY IT
WOULD PROVIDE, THE WAY THAT REMEDY SHOULD BE SOUGHT, THE EXTENT TO
WHICH IT SHOULD BE AFFORDED, AND THE MEANS BY WHICH IT SHOULD BE MADE
EFFECTIVE. 

CONGRESS DECLARED THAT CERTAIN LABOR PRACTICES SHOULD BE UNFAIR, BUT
IT PRESCRIBED A PARTICULAR METHOD BY WHICH SUCH PRACTICES SHOULD BE
ASCERTAINED AND PREVENTED.  BY THE EXPRESS TERMS OF THE ACT, THE BOARD
WAS MADE THE EXCLUSIVE AGENCY FOR THAT PURPOSE.  SECTION 10(A)
PROVIDES:  FN3 

"THE BOARD IS EMPOWERED, AS HEREINAFTER PROVIDED, TO PREVENT ANY
PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED IN SECTION 8)
AFFECTING COMMERCE.  THIS POWER SHALL BE EXCLUSIVE, AND SHALL NOT BE
AFFECTED BY ANY OTHER MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN
OR MAY BE ESTABLISHED BY AGREEMENT, CODE, LAW, OR OTHERWISE." 

THE ACT THEN SETS FORTH A DEFINITE AND RESTRICTED COURSE OF
PROCEDURE.  A CHARGE OF AN UNFAIR LABOR PRACTICE MAY BE PRESENTED TO
THE BOARD, BUT THE PERSON OR GROUP MAKING THE CHARGES DOES NOT BECOME
THE ACTOR IN THE PROCEEDING.  IT IS THE BOARD, AND THE BOARD ALONE OR
ITS DESIGNATED AGENT, WHICH HAS POWER TO ISSUE ITS COMPLAINT AGAINST
THE PERSON CHARGED WITH THE UNFAIR LABOR PRACTICE.  IF COMPLAINT IS
ISSUED, THERE MUST BE A HEARING BEFORE THE BOARD OR A MEMBER THEREOF OR
ITS AGENT.  THE PERSON AGAINST WHOM THE COMPLAINT IS ISSUED MAY ANSWER
AND PRODUCE TESTIMONY.  OTHER PERSONS MAY BE ALLOWED TO INTERVENE AND
PRESENT TESTIMONY, BUT ONLY IN THE DISCRETION OF THE BOARD, OR ITS
MEMBER OR AGENT CONDUCTING THE HEARING.  SEC. 10(B).  FN4  THE HEARING
IS UNDER THE CONTROL OF THE BOARD.  THE DETERMINATION WHETHER OR NOT
THE PERSON NAMED IN THE COMPLAINT HAS ENGAGED OR IS ENGAGING IN THE
UNFAIR LABOR PRACTICE RESTS WITH THE BOARD.  IF THE BOARD IS OF THE
OPINION THAT THE UNFAIR LABOR PRACTICE HAS BEEN SHOWN, THE BOARD MUST
STATE ITS FINDINGS OF FACT AND ISSUE ITS "CEASE AND DESIST" ORDER WITH
SUCH AFFIRMATIVE REQUIREMENTS AS WILL EFFECTUATE THE POLICY OF THE
ACT.  SEC. 10(C).  FN5 

SO FAR, IT IS APPARENT THAT CONGRESS HAS ENTRUSTED TO THE BOARD
EXCLUSIVELY THE PROSECUTION OF THE PROCEEDING BY ITS OWN COMPLAINT, THE
CONDUCT OF THE HEARING, THE ADJUDICATION AND THE GRANTING OF
APPROPRIATE RELIEF.  THE BOARD AS A PUBLIC AGENCY ACTING IN THE PUBLIC
INTEREST, NOT ANY PRIVATE PERSON OR GROUP, NOT ANY EMPLOYEE OR GROUP OF
EMPLOYEES, IS CHOSEN AS THE INSTRUMENT TO ASSURE PROTECTION FROM THE
DESCRIBED UNFAIR CONDUCT IN ORDER TO REMOVE OBSTRUCTIONS TO INTERSTATE
COMMERCE. 

WHEN THE BOARD HAS MADE ITS ORDER, THE BOARD ALONE IS AUTHORIZED TO
TAKE PROCEEDINGS TO ENFORCE IT.  FOR THAT PURPOSE THE BOARD IS
EMPOWERED TO PETITION THE CIRCUIT COURT OF APPEALS FOR A DECREE OF
ENFORCEMENT.  THE COURT IS TO PROCEED UPON NOTICE TO THOSE AGAINST WHOM
THE ORDER RUNS AND WITH APPROPRIATE HEARING.  IF THE COURT, UPON
APPLICATION BY EITHER PARTY, IS SATISFIED THAT ADDITIONAL EVIDENCE
SHOULD BE TAKEN, IT MAY ORDER THE BOARD, ITS MEMBER OR AGENT, TO TAKE
IT.  THE BOARD MAY THEN MODIFY ITS FINDINGS OF FACT AND MAKE NEW
FINDINGS.  THE JURISDICTION CONFERRED UPON THE COURT IS EXCLUSIVE AND
ITS DECREE IS FINAL SAVE AS IT MAY BE REVIEWED IN THE CUSTOMARY
MANNER.  SEC. 10(E).  FN6  AGAIN, THE ACT GIVES NO AUTHORITY FOR ANY
PROCEEDING BY A PRIVATE PERSON OR GROUP, OR BY ANY EMPLOYEE OR GROUP OF
EMPLOYEES, TO SECURE ENFORCEMENT OF THE BOARD'S ORDER.  THE VINDICATION
OF THE DESIRED FREEDOM OF EMPLOYEES IS THUS CONFIDED BY THE ACT, BY
REASON OF THE RECOGNIZED PUBLIC INTEREST, TO THE PUBLIC AGENCY THE ACT
CREATES.  PETITIONER EMPHASIZES THE OPPORTUNITY AFFORDED TO PRIVATE
PERSONS BY SEC. 10(F).  FN7  BUT THAT OPPORTUNITY IS GIVEN TO A PERSON
AGGRIEVED BY A FINAL ORDER OF THE BOARD WHICH HAS GRANTED OR DENIED IN
WHOLE OR IN PART THE RELIEF SOUGHT.  THAT IS, IT IS AN OPPORTUNITY
AFFORDED TO CONTEST A FINAL ORDER OF THE BOARD, NOT TO ENFORCE IT.  THE
PROCEDURE ON SUCH A CONTEST BEFORE THE CIRCUIT COURT OF APPEALS IS
ASSIMILATED TO THAT PROVIDED IN SEC. 10(E) WHEN THE BOARD SEEKS AN
ENFORCEMENT OF ITS ORDER.  BUT THAT ASSIMILATION DOES NOT CHANGE THE
NATURE OF THE PROCEEDING UNDER SEC. 10(F), WHICH SEEKS NOT TO REQUIRE
COMPLIANCE WITH THE BOARD'S ORDER BUT TO OVERTURN IT. 

WHAT CONGRESS SAID AT THE OUTSET, THAT THE POWER OF THE BOARD TO
PREVENT ANY UNFAIR PRACTICE AS DEFINED IN THE ACT IS EXCLUSIVE, IS THUS
FULLY CARRIED OUT AT EVERY STAGE OF THE PROCEEDING.  THE TEXT OF THE
ACT IS SO CLEAR IN THIS RESPECT THAT THERE IS NO NEED TO COMMENT UPON
ITS LEGISLATIVE HISTORY.  BUT THIS PUTS IN A STRONG LIGHT THE
LEGISLATIVE INTENT.  IN THE SENATE, THE COMMITTEE ON EDUCATION AND
LABOR IN ITS REPORT ON THE BILL SAID:  FN8 

"SECTION 10(A) GIVES THE NATIONAL LABOR RELATIONS BOARD EXCLUSIVE
JURISDICTION TO PREVENT AND REDRESS UNFAIR LABOR PRACTICES, AND, TAKEN
IN CONJUNCTION WITH SECTION 14, ESTABLISHES CLEARLY THAT THIS BILL IS
PARAMOUNT OVER OTHER LAWS THAT MIGHT TOUCH UPON SIMILAR SUBJECT
MATTERS.  THUS IT IS INTENDED TO DISPEL THE CONFUSION RESULTING FROM
DISPERSION OF AUTHORITY AND TO ESTABLISH A SINGLE PARAMOUNT
ADMINISTRATIVE OR QUASI-JUDICIAL AUTHORITY IN CONNECTION WITH THE
DEVELOPMENT OF THE FEDERAL AMERICAN LAW REGARDING COLLECTIVE
BARGAINING." 

AND THE COMMITTEE ON LABOR OF THE HOUSE OF REPRESENTATIVES IN ITS
REPORT STATED:  FN9 

"THE BOARD IS EMPOWERED, ACCORDING TO THE PROCEDURE PROVIDED IN
PRACTICE LISTED IN SECTION 8 'AFFECTING COMMERCE', AS THAT TERM IS
DEFINED IN SECTION 2(7).  THIS POWER IS VESTED EXCLUSIVELY IN THE BOARD
AND IS NOT TO BE AFFECTED BY ANY OTHER MEANS OF ADJUSTMENT OR
PREVENTION.  THE BOARD IS THUS MADE THE PARAMOUNT AGENCY FOR DEALING
WITH THE UNFAIR LABOR PRACTICES DESCRIBED IN THE BILL." 

AFTER REFERRING TO THE SUITABLE ADAPTATION OF THE BOARD'S ORDERS TO
THE NEEDS OF PARTICULAR CASES, AND ESPECIALLY TO THE POWER TO REINSTATE
EMPLOYEES WITH OR WITHOUT BACK PAY, THE COMMITTEE CONTINUED: 

"NO PRIVATE RIGHT OF ACTION IS CONTEMPLATED.  ESSENTIALLY THE UNFAIR
LABOR PRACTICES LISTED ARE MATTERS OF PUBLIC CONCERN, BY THEIR NATURE
AND CONSEQUENCES, PRESENT OR POTENTIAL; THE PROCEEDING IS IN THE NAME
OF THE BOARD, UPON THE BOARD'S FORMAL COMPLAINT.  THE FORM OF
INJUNCTIVE AND AFFIRMATIVE ORDER IS NECESSARY TO EFFECTUATE THE PURPOSE
OF THE BILL TO REMOVE OBSTRUCTIONS TO INTERSTATE COMMERCE WHICH ARE BY
THE LAW DECLARED TO BE DETRIMENTAL TO THE PUBLIC WEAL." 

IN BOTH HOUSES OF CONGRESS, THE COMMITTEES WERE CAREFUL TO SAY THAT
THE PROCEDURE PROVIDED BY THE BILL WAS ANALOGOUS TO THAT SET UP BY THE
FEDERAL TRADE COMMISSION ACT, SEC. 5,  FN10  WHICH WAS DEEMED TO BE
"FAMILIAR TO ALL STUDENTS OF ADMINISTRATIVE LAW."  THAT PROCEDURE,
WHICH WAS FOUND TO BE PRESCRIBED IN THE PUBLIC INTEREST AS
DISTINGUISHED FROM PROVISIONS INTENDED TO AFFORD REMEDIES TO PRIVATE
PERSONS, WAS FULLY DISCUSSED BY THIS COURT IN FEDERAL TRADE COMMISSION
V. KLESNER, 280 U.S. 19, 25, WHERE IT WAS SAID: 

"SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT DOES NOT PROVIDE
PRIVATE PERSONS WITH AN ADMINISTRATIVE REMEDY FOR PRIVATE WRONGS.  THE
FORMAL COMPLAINT IS BROUGHT IN THE COMMISSION'S NAME; THE PROSECUTION
IS WHOLLY THAT OF THE GOVERNMENT; AND IT BEARS THE ENTIRE EXPENSE OF
THE PROSECUTION.  A PERSON WHO DEEMS HIMSELF AGGRIEVED BY THE USE OF AN
UNFAIR METHOD OF COMPETITION IS NOT GIVEN THE RIGHT TO INSTITUTE BEFORE
THE COMMISSION A COMPLAINT AGAINST THE ALLEGED WRONGDOER.  NOR MAY THE
COMMISSION AUTHORIZE HIM TO DO SO.  HE MAY OF COURSE BRING THE MATTER
TO THE COMMISSION'S ATTENTION AND REQUEST IT TO FILE A COMPLAINT.  BUT
A DENIAL OF HIS REQUEST IS FINAL.  AND IF THE REQUEST IS GRANTED AND A
PROCEEDING IS INSTITUTED, HE DOES NOT BECOME A PARTY TO IT OR HAVE ANY
CONTROL OVER IT." 

THAT SORT OF PROCEDURE CONCERNING UNFAIR COMPETITION WAS CONTRASTED
WITH THAT PROVIDED BY THE INTERSTATE COMMERCE ACT IN RELATION TO UNJUST
DISCRIMINATION.  WE SAID THAT "IN THEIR BEARING UPON PRIVATE RIGHTS"
THEY ARE "WHOLLY DISSIMILAR."  THE INTERSTATE COMMERCE ACT IMPOSES UPON
THE CARRIER MANY DUTIES AND CREATES IN THE INDIVIDUAL CORRESPONDING
RIGHTS.  FOR THE VIOLATION OF THE PRIVATE RIGHT IT AFFORDS "A PRIVATE
ADMINISTRATIVE REMEDY."  THE INTERESTED PERSON CAN FILE AS OF RIGHT A
COMPLAINT BEFORE THE INTERSTATE COMMERCE COMMISSION AND THE CARRIER IS
REQUIRED TO MAKE ANSWER.  WE SAID THAT THE FEDERAL TRADE COMMISSION ACT
"CONTAINS NO SUCH FEATURES."  ID., P. 26.  THE PRESENT ACT, DRAWN IN
ANALOGY TO THE FEDERAL TRADE COMMISSION ACT, CONTAINS NO SUCH
FEATURES.    AS CONGRESS HAS IN THIS INSTANCE CREATED A PUBLIC AGENCY
ENTRUSTED BY THE TERMS OF ITS CREATION WITH THE EXCLUSIVE AUTHORITY FOR
THE ENFORCEMENT OF THE PROVISIONS OF THE ACT, DECISIONS DEALING WITH
THE LEGAL OBLIGATIONS ARISING UNDER THE RAILWAY LABOR ACT  FN11  CANNOT
BE REGARDED AS APPOSITE.  TEXAS & NEW ORLEANS R. CO. V. BROTHERHOOD OF
RAILWAY CLERKS, 281 U.S. 548, 569, 570; VIRGINIAN RAILWAY CO. V. SYSTEM
FEDERATION NO. 40, 300 U.S. 515, 543, 544.    WE THINK THAT THE
PROVISION OF THE NATIONAL LABOR RELATIONS ACT CONFERRING EXCLUSIVE
POWER UPON THE BOARD TO PREVENT ANY UNFAIR LABOR PRACTICE, AS DEFINED,
- A POWER NOT AFFECTED BY ANY OTHER MEANS OF "PREVENTION THAT HAS BEEN
OR MAY BE ESTABLISHED BY AGREEMENT, CODE, LAW, OR OTHERWISE" -
NECESSARILY EMBRACES EXCLUSIVE AUTHORITY TO INSTITUTE PROCEEDINGS FOR
THE VIOLATION OF THE COURT'S DECREE DIRECTING ENFORCEMENT.  THE DECREE
IN NO WAY ALTERS, BUT CONFIRMS, THE POSITION OF THE BOARD AS THE
ENFORCING AUTHORITY.  IT IS THE BOARD'S ORDER ON BEHALF OF THE PUBLIC
THAT THE COURT ENFORCES.  IT IS THE BOARD'S RIGHT TO MAKE THAT ORDER
THAT THE COURT SUSTAINS.  THE BOARD SEEKS ENFORCEMENT AS A PUBLIC
AGENT, NOT TO GIVE EFFECT TO A "PRIVATE ADMINISTRATIVE REMEDY."  BOTH
THE ORDER AND THE DECREE ARE AIMED AT THE PREVENTION OF THE UNFAIR
LABOR PRACTICE.  IF THE DECREE OF ENFORCEMENT IS DISOBEYED, THE UNFAIR
LABOR PRACTICE IS STILL NOT PREVENTED.  THE BOARD STILL REMAINS AS THE
SOLE AUTHORITY TO SECURE THAT PREVENTION.  THE APPROPRIATE PROCEDURE TO
THAT END IS TO ASK THE COURT TO PUNISH THE VIOLATION OF ITS DECREE AS A
CONTEMPT.  AS THE COURT HAS NO JURISDICTION TO ENFORCE THE ORDER AT THE
SUIT OF ANY PRIVATE PERSON OR GROUP OF PERSONS, WE THINK IT IS CLEAR
THAT THE COURT CANNOT ENTERTAIN A PETITION FOR VIOLATION OF ITS DECREE
OF ENFORCEMENT SAVE AS THE BOARD PRESENTS IT.  AS THE CONFERENCE REPORT
UPON THE BILL STATED,  FN12  IN CASE THE UNFAIR LABOR PRACTICE IS
RESUMED, "THERE WILL BE IMMEDIATELY AVAILABLE TO THE BOARD AN EXISTING
COURT DECREE TO SERVE AS A BASIS FOR CONTEMPT PROCEEDINGS." 

THE ORDER OF THE COURT OF APPEALS DENYING PETITIONER'S MOTION IS
AFFIRMED. 

FN1  49 STAT. 449, 29 U.S.C. 151, ET SEQ. 

FN2  29 U.S.C. 157. 

FN3  29 U.S.C. 160(A). 

FN4  29 U.S.C. 160(B). 

FN5  29 U.S.C. 160(C). 

FN6  29 U.S.C. 160(E). 

FN7  29 U.S.C. 160(F). 

FN8  SEN. REP. NO. 573, 74TH CONG., 1ST SESS., P. 15. 

FN9  H.R. REP. NO. 972, 74TH CONG., 1ST SESS., P. 21. 

FN10  38 STAT. 719, 15 U.S.C. 45. 

FN11  45 U.S.C. 151.  SEE 50 HARVARD LAW REVIEW 1089, 1090. 

FN12  CONFERENCE REPORT, CONG. REC., 74TH CONG., 1ST SESS., PT. 9, P.
10,299. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CAUSE. 
..END :











MINNESOTA V. PROBATE COURT, 309 U.S. 270 


NO. 394.  ARGUED FEBRUARY 6, 7, 1940.  - DECIDED FEBRUARY 26, 1940.  -
205 MINN. 545 - 287 N.W. 297, AFFIRMED. 


UNDER A MINNESOTA STATUTE A PERSON MAY BE SUBJECTED TO A PROCEEDING
AKIN TO LUNACY PROCEEDINGS WITH A VIEW TO HIS RESTRAINT IF PROVEN TO BE
OF A "PSYCHOPATHIC PERSONALITY."  IN A PROHIBITION PROCEEDING THE STATE
SUPREME COURT CONSTRUED THE STATUTE AS INTENDED TO INCLUDE THOSE
PERSONS WHO, BY A HABITUAL COURSE OF MISCONDUCT IN SEXUAL MATTERS, HAVE
EVIDENCED AN UTTER LACK OF POWER TO CONTROL THEIR SEXUAL IMPULSES AND
WHO, AS A RESULT, ARE LIKELY TO ATTACK OR OTHERWISE INFLICT INJURY,
LOSS, PAIN OR OTHER EVIL ON THE OBJECTS OF THEIR UNCONTROLLED AND
UNCONTROLLABLE DESIRE; AND UPHELD THE STATUTE AND QUASHED THE
ALTERNATIVE WRIT.  UPON APPEAL HERE, HELD: 

1.  THIS COURT MUST ACCEPT THE STATE COURT'S CONSTRUCTION.  P. 273. 

2.  THE WORD "INCLUDE" AS USED IN THAT COURT'S OPINION, WILL BE TAKEN
AS DEFINING THE ENTIRE CLASS OF PERSONS TO WHOM THE STATUTE APPLIES AND
NOT AS DESCRIBING MERELY A PORTION OF A LARGER CLASS.  PP. 273-274. 

3.  THE STATUTE, SO CONSTRUED, IS NOT TOO VAGUE AND INDEFINITE TO
CONSTITUTE VALID LEGISLATION.  P. 274. 

4.  THE OBJECTION THAT IT DENIES THE EQUAL PROTECTION OF THE LAWS
BECAUSE OF UNREASONABLE CLASSIFICATION, IS UNTENABLE.  P. 274. 

THE LEGISLATURE IS FREE TO RECOGNIZE DEGREES OF HARM AND MAY CONFINE
ITS RESTRICTIONS TO THOSE CLASSES OF CASES WHERE THE NEED IS DEEMED TO
BE CLEAREST. 

5.  IN ITS PROCEDURAL ASPECT, THE STATUTE IS NOT INVALID ON ITS
FACE.  P. 275. 

6.  PROCEDURAL OBJECTIONS THAT ARE BASED UPON POSSIBLE APPLICATIONS
OF THE STATUTE IN THE PROGRESS OF THE CAUSE WHICH HAVE NOT AS YET BEEN
PASSED UPON BY THE STATE COURT, ARE PREMATURE.  P. 277. 

MINNESOTA EX REL. PEARSON V. PROBATE COURT OF RAMSEY COUNTY ET AL. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

APPEAL FROM A JUDGMENT QUASHING AN ALTERNATIVE WRIT OF PROHIBITION. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

APPELLANT, CHARLES EDWIN PEARSON, PETITIONED THE SUPREME COURT OF
MINNESOTA FOR A WRIT OF PROHIBITION COMMANDING THE PROBATE COURT OF
RAMSEY COUNTY, AND ITS JUDGE, TO DESIST FROM PROCEEDING AGAINST HIM AS
A "PSYCHOPATHIC PERSONALITY" UNDER CHAPTER 369 OF THE LAWS OF MINNESOTA
OF 1939.  A PROCEEDING UNDER THE STATUTE HAD BEEN BROUGHT IN THE
PROBATE COURT FOR THE COMMITMENT OF APPELLANT AND AN ORDER FOR HIS
PRODUCTION AND EXAMINATION HAD BEEN ISSUED. 

APPELLANT CONTENDED THAT THE STATUTE VIOLATED THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION.  AFTER HEARING UPON AN ALTERNATIVE WRIT, THE SUPREME
COURT OVERRULED THESE CONTENTIONS AND QUASHED THE WRIT.  205 MINN. 545;
287 N.W. 297.  THE CASE COMES HERE ON APPEAL.  JUD.  CODE, SEC. 237(A);
28 U.S.C. 344(A). 

THE STATUTE, IN SEC. 1, DEFINES THE TERM "PSYCHOPATHIC PERSONALITY"
AS MEANING "THE EXISTENCE IN ANY PERSON OF SUCH CONDITIONS OF EMOTIONAL
INSTABILITY, OR IMPULSIVENESS OF BEHAVIOR, OR LACK OF CUSTOMARY
STANDARDS OF GOOD JUDGMENT, OR FAILURE TO APPRECIATE THE CONSEQUENCES
OF HIS ACTS, OR A COMBINATION OF ANY SUCH CONDITIONS, AS TO RENDER SUCH
PERSON IRRESPONSIBLE FOR HIS CONDUCT WITH RESPECT TO SEXUAL MATTERS AND
THEREBY DANGEROUS TO OTHER PERSONS." 

PROVIDED, THE LAWS RELATING TO INSANE PERSONS, OR THOSE ALLEGED TO BE
INSANE, SHALL APPLY WITH LIKE FORCE TO PERSONS HAVING, OR ALLEGED TO
HAVE, A PSYCHOPATHIC PERSONALITY.  THERE IS A PROVISO THAT BEFORE
PROCEEDINGS ARE INSTITUTED THE FACTS SHALL FIRST BE SUBMITTED TO THE
COUNTY ATTORNEY WHO IF HE IS SATISFIED THAT GOOD CAUSE EXISTS SHALL
PREPARE A PETITION TO BE EXECUTED BY A PERSON HAVING KNOWLEDGE OF THE
FACTS AND SHALL FILE IT WITH THE JUDGE OF THE PROBATE COURT OF THE
COUNTY IN WHICH THE "PATIENT" HAS HIS "SETTLEMENT OR IS PRESENT."  THE
PROBATE JUDGE SHALL SET THE MATTER DOWN FOR HEARING AND FOR EXAMINATION
OF THE "PATIENT."  THE JUDGE MAY EXCLUDE THE GENERAL PUBLIC FROM
ATTENDANCE.  THE "PATIENT" MAY BE REPRESENTED BY COUNSEL AND THE COURT
MAY APPOINT COUNSEL FOR HIM IF HE IS FINANCIALLY UNABLE TO OBTAIN SUCH
ASSISTANCE.  THE "PATIENT" IS ENTITLED TO COMPULSORY PROCESS FOR THE
ATTENDANCE OF WITNESSES IN HIS BEHALF.  THE COURT MUST APPOINT TWO DULY
LICENSED DOCTORS OF MEDICINE TO ASSIST IN THE EXAMINATION.  THE
PROCEEDINGS ARE TO BE REDUCED TO WRITING AND MADE PARTS OF THE COURT'S
RECORDS.  FROM A FINDING OF THE EXISTENCE OF PSYCHOPATHIC PERSONALITY,
THE "PATIENT" MAY APPEAL TO THE DISTRICT COURT. 

AFTER SETTING FORTH THE GENERAL PRINCIPLES WHICH GOVERNED ITS
DETERMINATION, THE STATE COURT CONSTRUED THE STATUTE IN THESE WORDS: 

"APPLYING THESE PRINCIPLES TO THE CASE BEFORE US, IT CAN REASONABLY
BE SAID THAT THE LANGUAGE OF SEC. 1 OF THE ACT IS INTENDED TO INCLUDE
THOSE PERSONS WHO, BY AN HABITUAL COURSE OF MISCONDUCT IN SEXUAL
MATTERS, HAVE EVIDENCED AN UTTER LACK OF POWER TO CONTROL THEIR SEXUAL
IMPULSES AND WHO, AS A RESULT, ARE LIKELY TO ATTACK OR OTHERWISE
INFLICT INJURY, LOSS, PAIN OR OTHER EVIL ON THE OBJECTS OF THEIR
UNCONTROLLED AND UNCONTROLLABLE DESIRE.  IT WOULD NOT BE REASONABLE TO
APPLY THE PROVISIONS OF THE STATUTE TO EVERY PERSON GUILTY OF SEXUAL
MISCONDUCT NOR EVEN TO PERSONS HAVING STRONG SEXUAL PROPENSITIES.  SUCH
A DEFINITION WOULD NOT ONLY MAKE THE ACT IMPRACTICABLE OF ENFORCEMENT
AND, PERHAPS, UNCONSTITUTIONAL IN ITS APPLICATION, BUT WOULD ALSO BE AN
UNWARRANTED DEPARTURE FROM THE ACCEPTED MEANING OF THE WORDS DEFINED." 

THIS CONSTRUCTION IS BINDING UPON US. ANY CONTENTION THAT THE
CONSTRUCTION IS CONTRARY TO THE TERMS OF THE ACT IS UNAVAILING HERE. 
FOR THE PURPOSE OF DECIDING THE CONSTITUTIONAL QUESTIONS APPELLANT
RAISES WE MUST TAKE THE STATUTE AS THOUGH IT READ PRECISELY AS THE
HIGHEST COURT OF THE STATE HAS INTERPRETED IT.  KNIGHTS OF PYTHIAS V.
MEYER, 265 U.S. 30, 32; GUARANTY TRUST CO. V. BLODGETT, 287 U.S. 509,
513; HICKLIN V. CONEY, 290 U.S. 169, 172; GEORGIA RAILWAY & ELECTRIC
CO. V. DECATUR, 295 U.S. 165, 170.  MOREOVER, AS IT WAS THE MANIFEST
PURPOSE OF THE COURT TO DETERMINE DEFINITELY THE MEANING OF THE ACT, WE
ACCEPT THE VIEW PRESENTED BY THE ATTORNEY GENERAL OF THE STATE AT THIS
BAR, THAT THE COURT USED THE WORD "INCLUDE" AS DEFINING THE ENTIRE
CLASS OF PERSONS TO WHOM THE STATUTE APPLIES AND NOT AS DESCRIBING
MERELY A PORTION OF A LARGER CLASS.  IN ADVANCE OF A DECISION BY THE
STATE COURT APPLYING THE STATUTE TO PERSONS OUTSIDE THAT DEFINITION, WE
SHOULD NOT ADOPT A CONSTRUCTION OF THE PROVISION WHICH MIGHT RENDER IT
OF DOUBTFUL VALIDITY.  STEPHENSON V. BINFORD, 287 U.S. 251, 277. 

THIS CONSTRUCTION OF THE STATUTE DESTROYS THE CONTENTION THAT IT IS
TOO VAGUE AND INDEFINITE TO CONSTITUTE VALID LEGISLATION.  THERE MUST
BE PROOF OF A "HABITUAL COURSE OF MISCONDUCT IN SEXUAL MATTERS" ON THE
PART OF THE PERSONS AGAINST WHOM A PROCEEDING UNDER THE STATUTE IS
DIRECTED, WHICH HAS SHOWN "AN UTTER LACK OF POWER TO CONTROL THEIR
SEXUAL IMPULSES," AND HENCE THAT THEY "ARE LIKELY TO ATTACK OR
OTHERWISE INFLICT INJURY, LOSS, PAIN OR OTHER EVIL ON THE OBJECTS OF
THEIR UNCONTROLLED AND UNCONTROLLABLE DESIRE."  THESE UNDERLYING
CONDITIONS, CALLING FOR EVIDENCE OF PAST CONDUCT POINTING TO PROBABLE
CONSEQUENCES ARE AS SUSCEPTIBLE OF PROOF AS MANY OF THE CRITERIA
CONSTANTLY APPLIED IN PROSECUTIONS FOR CRIME.  NASH V. UNITED STATES,
229 U.S. 373, 377; FOX V. WASHINGTON, 236 U.S. 273, 277, 278;
OMAECHEVARRIA V. IDAHO, 246 U.S. 343, 348; UNITED STATES V. WURZBACH,
280 U.S. 396, 399.  APPELLANT'S CRITICISMS ARE DRAWN FROM HIS
INTERPRETATION OF THE STATUTE AND FIND NO WARRANT IN THE STATUTE AS THE
STATE COURT HAS CONSTRUED IT. 

EQUALLY UNAVAILING IS THE CONTENTION THAT THE STATUTE DENIES
APPELLANT THE EQUAL PROTECTION OF THE LAWS.  THE ARGUMENT PROCEEDS ON
THE VIEW THAT THE STATUTE HAS SELECTED A GROUP WHICH IS A PART OF A
LARGER CLASS.  THE QUESTION, HOWEVER, IS WHETHER THE LEGISLATURE COULD
CONSTITUTIONALLY MAKE A CLASS OF THE GROUP IT DID SELECT.  THAT IS,
WHETHER THERE IS ANY RATIONAL BASIS FOR SUCH A SELECTION.  WE SEE NO
REASON FOR DOUBT UPON THIS POINT.  WHETHER THE LEGISLATURE COULD HAVE
GONE FARTHER IS NOT THE QUESTION.  THE CLASS IT DID SELECT IS
IDENTIFIED BY THE STATE COURT IN TERMS WHICH CLEARLY SHOW THAT THE
PERSONS WITHIN THAT CLASS CONSTITUTE A DANGEROUS ELEMENT IN THE
COMMUNITY WHICH THE LEGISLATURE IN ITS DISCRETION COULD PUT UNDER
APPROPRIATE CONTROL.  AS WE HAVE OFTEN SAID, THE LEGISLATURE IS FREE TO
RECOGNIZE DEGREES OF HARM, AND IT MAY CONFINE ITS RESTRICTIONS TO THOSE
CLASSES OF CASES WHERE THE NEED IS DEEMED TO BE CLEAREST.  IF THE LAW
"PRESUMABLY HITS THE EVIL WHERE IT IS MOST FELT, IT IS NOT TO BE
OVERTHROWN BECAUSE THERE ARE OTHER INSTANCES TO WHICH IT MIGHT HAVE
BEEN APPLIED."  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78
79; MILLER V. WILSON, 236 U.S. 373, 384; SEMLER V. DENTAL EXAMINERS,
294 U.S. 608, 610, 611; WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379,
400. 

THERE REMAINS THE QUESTION WHETHER, APART FROM DEFINITION AND
CLASSIFICATION, THE PROCEDURE AUTHORIZED BY THE STATUTE ADEQUATELY
SAFEGUARDS THE FUNDAMENTAL RIGHTS EMBRACED IN THE CONCEPTION OF DUE
PROCESS.  IN THIS RELATION IT IS IMPORTANT TO NOTE THAT APPELLANT HAS
CHALLENGED THE PROCEEDING IN LIMINE BY SEEKING TO PREVENT THE PROBATE
JUDGE FROM ENTERTAINING IT.  TO SUPPORT SUCH A CHALLENGE, THE STATUTE
IN ITS PROCEDURAL ASPECT MUST BE FOUND TO BE INVALID ON ITS FACE AND
NOT BY REASON OF SOME PARTICULAR APPLICATION INCONSISTENT WITH DUE
PROCESS.  IN THAT LIGHT THE ARGUMENT ON THIS BRANCH OF THE CASE ALSO
FAILS. 

AS WE HAVE SEEN, THE FACTS MUST FIRST BE SUBMITTED TO THE COUNTY
ATTORNEY WHO MUST BE SATISFIED THAT GOOD CAUSE EXISTS.  HE THEN DRAWS A
PETITION WHICH MUST BE "EXECUTED BY A PERSON HAVING KNOWLEDGE OF THE
FACTS."  THE PROBATE JUDGE MUST SET THE MATTER FOR HEARING AND FOR
EXAMINATION OF THE PERSON PROCEEDED AGAINST.  PROVISION IS MADE FOR HIS
REPRESENTATION BY COUNSEL AND FOR COMPELLING THE PRODUCTION OF
WITNESSES IN HIS BEHALF.  THE COURT MUST APPOINT TWO LICENSED DOCTORS
OF MEDICINE TO ASSIST IN THE EXAMINATION.  THE ARGUMENT THAT THESE
DOCTORS MAY NOT BE SUFFICIENTLY EXPERT IN THIS TYPE OF CASES MERELY
INVITES CONJECTURE.  THERE IS NO REASON TO DOUBT THAT QUALIFIED MEDICAL
MEN ARE USUALLY AVAILABLE.  LAWS AS TO PROCEEDINGS WHERE PERSONS ARE
ALLEGED TO BE INSANE ARE MADE APPLICABLE.  APPELLANT SAYS THAT THE
PATIENT CANNOT BE RELEASED ON BAIL.  THE STATE CONTESTS THIS, INSISTING
THAT HE MAY BE SO RELEASED PENDING HEARING OR ON APPEAL, POINTING TO
MASON'S MINNESOTA STATUTES, 1938 SUPPLEMENT, SEC. 8992-178.  APPELLANT
CONTENDS THAT IF THE COURT FINDS THE PATIENT TO BE WITHIN THE STATUTE,
HE MUST BE COMMITTED "FOR THE REST OF HIS LIFE TO AN ASYLUM FOR THE
DANGEROUSLY INSANE."  MASON'S MINN. STAT., 1938 SUPP., SEC. 8992-176. 
THE STATE ALSO CONTESTS THIS CONCLUSION, MAINTAINING THAT THE
COMMITMENT IS WITHOUT TERM AND SUBJECT TO THE RIGHT OF THE PATIENT, OR
ANY ONE INTERESTED IN HIM, TO PETITION THE COMMITTING COURT FOR RELEASE
AT ANY TIME.  MASON'S MINN. STAT., 1938 SUPP., SEC. 8992-143; LAWS OF
1935, CHAP. 72, SEC. 143; AS AMENDED BY LAWS OF 1939, CHAP. 270, SEC.
8.  THE STATUTE GIVES A RIGHT OF APPEAL FROM THE FINDING OF THE PROBATE
JUDGE UPON COMPLIANCE WITH CERTAIN SPECIFIED PROVISIONS OF THE
MINNESOTA LAWS.  APPELLANT CONTENDS THAT THIS EXCLUDES OTHER PROVISIONS
OF LAWS RELATING TO APPEALS IN INSANITY CASES.  AGAIN, APPELLANT'S
POSITION IS CONTESTED BY THE STATE UPON THE GROUND THAT THERE IS NO
EXPRESS LIMITATION OR EXCLUSION IN THE LANGUAGE OF THE STATUTE AND THAT
OTHER PROVISIONS GOVERNING APPELLATE PROCEDURE APPLY.  THESE VARIOUS
PROCEDURAL QUESTIONS, AND OTHERS SUGGESTED BY APPELLANT, DO NOT APPEAR
TO HAVE BEEN PASSED UPON BY THE STATE COURT. 

WE FULLY RECOGNIZE THE DANGER OF A DEPRIVATION OF DUE PROCESS IN
PROCEEDINGS DEALING WITH PERSONS CHARGED WITH INSANITY OR, AS HERE,
WITH A PSYCHOPATHIC PERSONALITY AS DEFINED IN THE STATUTE, AND THE
SPECIAL IMPORTANCE OF MAINTAINING THE BASIC INTERESTS OF LIBERTY IN A
CLASS OF CASES WHERE THE LAW THOUGH "FAIR ON ITS FACE AND IMPARTIAL IN
APPEARANCE" MAY BE OPEN TO SERIOUS ABUSES IN ADMINISTRATION AND COURTS
MAY BE IMPOSED UPON IF THE SUBSTANTIAL RIGHTS OF THE PERSONS CHARGED
ARE NOT ADEQUATELY SAFEGUARDED AT EVERY STAGE OF THE PROCEEDINGS.  BUT
WE HAVE NO OCCASION TO CONSIDER SUCH ABUSES HERE, FOR NONE HAVE
OCCURRED.  THE APPLICABLE STATUTES ARE NOT PATENTLY DEFECTIVE IN ANY
VITAL RESPECT AND WE SHOULD NOT ASSUME, IN ADVANCE OF A DECISION BY THE
STATE COURT, THAT THEY SHOULD BE CONSTRUED SO AS TO DEPRIVE APPELLANT
OF THE DUE PROCESS TO WHICH HE IS ENTITLED UNDER THE FEDERAL
CONSTITUTION.  PLYMOUTH COAL CO. V. PENNSYLVANIA, 232 U.S. 531, 546;
UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165, 186, 187; STEPHENSON V.
BINFORD, SUPRA.  ON THE CONTRARY, WE MUST ASSUME THAT THE MINNESOTA
COURTS WILL PROTECT APPELLANT IN EVERY CONSTITUTIONAL RIGHT HE
POSSESSES.  HIS PROCEDURAL OBJECTIONS ARE PREMATURE. 

THE JUDGMENT IS AFFIRMED. 
..END :
























HELVERING V. KEHOE, 309 U.S. 277 


NO. 419.  ARGUED FEBRUARY 7, 8, 1940.  - DECIDED FEBRUARY 26, 1940.  -
105 F.2D 552, REVERSED. 


A CONCLUSION OF FACT BY THE BOARD OF TAX APPEALS SUPPORTED BY
SUBSTANTIAL EVIDENCE BINDS THE CIRCUIT COURT OF APPEALS.  P. 279. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. KEHOE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 308 U.S. 543, TO REVIEW A JUDGMENT REVERSING A DECISION
OF THE BOARD OF TAX APPEALS SUSTAINING A RULING OF THE COMMISSIONER OF
INTERNAL REVENUE. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT KEHOE, IN 1926, MADE AN INCOME TAX RETURN FOR 1925 AND
PAID THE AMOUNT COMPUTED THEREON.  IN 1927, AFTER INQUIRY CONCERNING
HIS AFFAIRS, THE COMMISSIONER ASSESSED AND COLLECTED AN ADDITIONAL
SUM.  RESPONDENT WAIVED APPEAL TO THE BOARD OF TAX APPEALS AND BECAME
PARTY TO A CLOSING AGREEMENT UNDER SEC. 1106(B) REVENUE ACT 1926,  FN1
APPROVED BY THE SECRETARY OF THE TREASURY JANUARY 27, 1928. 

IN 1932 THE COMMISSIONER UNDERTOOK TO SET ASIDE THIS AGREEMENT AND
MADE A DEFICIENCY ASSESSMENT OF MORE THAN TWO HUNDRED THOUSAND DOLLARS,
ALSO A FIFTY PER CENT PENALTY.  RESPONDENT APPEALED TO THE BOARD OF TAX
APPEALS WHERE HE MAINTAINED THERE WAS NO ADEQUATE PROOF TO SUPPORT THE
ASSESSMENT.  THE BOARD HELD THE COMMISSIONER HAD ADEQUATELY SUSTAINED
THE BURDEN OF SHOWING FRAUD OR MALFEASANCE OR MISREPRESENTATION OF
FACT, AND DID NOT ERR IN SETTING THE AGREEMENT ASIDE. 

THE MATTER THEN WENT TO THE CIRCUIT COURT OF APPEALS, THIRD CIRCUIT,
WHICH RULED THERE WAS NO ADEQUATE EVIDENCE TO SUPPORT THE CONCLUSION
AND JUDGMENT OF THE BOARD.  THE FACTS ARE MUCH DISCUSSED IN A MAJORITY
AND DISSENTING OPINION, 105 F.2D 552.  ANOTHER NARRATION OF THEM SEEMS
UNNECESSARY. 

UNDER THE RULE OFTEN ANNOUNCED, THE FUNCTION OF THE BOARD OF TAX
APPEALS IS TO WEIGH THE EVIDENCE AND DECLARE THE RESULT AS TO MATTERS
PROPERLY BEFORE IT.  UPON REVIEW THE COURT MAY NOT SUBSTITUTE ITS
JUDGMENT OF THE FACTS FOR THAT OF THE BOARD.  WHEN THERE IS SUBSTANTIAL
EVIDENCE TO SUPPORT THE CONCLUSION OF THE LATTER THIS MUST BE
ACCEPTED.  HELVERING V. RANKIN, 295 U.S. 123, 131; GENERAL UTILITIES
CO. V. HELVERING, 296 U.S. 200, 206; ELMHURST CEMETERY CO. V.
COMMISSIONER, 300 U.S. 37, 40. 

HERE, UPON EVIDENCE WHICH WE THINK IS SUBSTANTIAL (THE DISSENTING
MEMBER OF THE COURT BELOW HELD THE SAME VIEW), THE BOARD FOUND FRAUD IN
FACT WHICH AFFECTED THE CLOSING AGREEMENT, AND THAT THE COMMISSIONER
PROPERLY SET THE CONTRACT ASIDE.  THE COURT BELOW SHOULD HAVE ACCEPTED
THIS FINDING OF FACT.  AS IT FAILED SO TO DO THE CHALLENGED JUDGMENT
MUST BE REVERSED.  THE RULING OF THE BOARD IS AFFIRMED.  REVERSED. 

FN1  FEBRUARY 26, 1926, C. 27, 44 STAT. 9, 113 - 

"SEC. 1106(B).  IF AFTER A DETERMINATION AND ASSESSMENT IN ANY CASE
THE TAXPAYER HAS PAID IN WHOLE ANY TAX OR PENALTY, OR ACCEPTED ANY
ABATEMENT, CREDIT, OR REFUND BASED ON SUCH DETERMINATION AND
ASSESSMENT, AND AN AGREEMENT IS MADE IN WRITING BETWEEN THE TAXPAYER
AND THE COMMISSIONER, WITH THE APPROVAL OF THE SECRETARY, THAT SUCH
DETERMINATION AND ASSESSMENT SHALL BE FINAL AND CONCLUSIVE, THEN
(EXCEPT UPON A SHOWING OF FRAUD OR MALFEASANCE OR MISREPRESENTATION OF
FACT MATERIALLY AFFECTING THE DETERMINATION OR ASSESSMENT THUS MADE)(1)
THE CASE SHALL NOT BE REOPENED OR THE DETERMINATION AND ASSESSMENT
MODIFIED BY ANY OFFICER, EMPLOYEE, OR AGENT OF THE UNITED STATES, AND
(2) NO SUIT, ACTION, OR PROCEEDING TO ANNUL, MODIFY, OR SET ASIDE SUCH
DETERMINATION OR ASSESSMENT SHALL BE ENTERTAINED BY ANY COURT OF THE
UNITED STATES." 
..END :



RUSSELL V. TODD, 309 U.S. 280 


NO. 329.  ARGUED JANUARY 12, 1940.  - DECIDED FEBRUARY 26, 1940.  - 104
F.2D 169, AFFIRMED. 


1.  THE SHAREHOLDERS' LIABILITY, "EQUALLY AND RATABLY," FOR THE DEBTS
OF A JOINT STOCK LAND BANK, UNDER SEC. 16 OF THE FEDERAL FARM LOAN ACT,
IS ENFORCEABLE ONLY BY A SINGLE REPRESENTATIVE SUIT IN EQUITY IN BEHALF
OF ALL THE CREDITORS, IN WHICH THE EXISTENCE AND EXTENT OF INSOLVENCY,
AND THE RATABLE SHARES OF THE CONTRIBUTION BY SHAREHOLDERS, CAN BE
ASCERTAINED AND AN EQUITABLE DISTRIBUTION MADE OF THE FUND RECOVERED. 
P. 285. 

THE SUIT IS NOT ANY THE LESS IN EQUITY BECAUSE IT TURNS OUT THAT THE
LIABILITY OF THE SHAREHOLDERS EQUALS THE FULL PAR-VALUE OF THEIR
STOCK.  P. 286. 

2.  THE TEST OF THE INADEQUACY OF THE LEGAL REMEDY PREREQUISITE TO
RESORT TO A FEDERAL COURT OF EQUITY IS THE LEGAL REMEDY WHICH FEDERAL
RATHER THAN STATE COURTS AFFORD.  P. 286. 

THE JURISDICTION OF FEDERAL COURTS OF EQUITY, AS DETERMINED BY THAT
TEST, IS NEITHER ENLARGED NOR DIMINISHED BY THE NAMES GIVEN TO REMEDIES
OR THE DISTINCTION MADE BETWEEN THEM BY STATE PRACTICE. 

3.  THE RULES OF DECISION ACT EMBRACES RULES ESTABLISHED BY JUDICIAL
DECISION AS WELL AS STATUTORY RULES, BUT DOES NOT APPLY TO SUITS IN
EQUITY.  P. 287. 

4.  EQUITY PROVIDES ITS OWN RULE OF LIMITATIONS THROUGH THE DOCTRINE
OF LACHES, IN THE ABSENCE OF ANY STATUTE OF LIMITATIONS MADE APPLICABLE
TO EQUITY SUITS.  P. 287. 

5.  WHEN CONSONANT WITH EQUITABLE PRINCIPLES, FEDERAL COURTS OF
EQUITY APPLY AS THEIR OWN THE LOCAL STATUTES OF LIMITATIONS APPLICABLE
TO EQUITABLE CAUSES OF ACTION.  P. 288. 

6.  EVEN THOUGH THERE IS NO STATE STATUTE APPLICABLE TO SIMILAR
EQUITABLE DEMANDS, WHEN THE JURISDICTION OF THE FEDERAL COURT IS
CONCURRENT WITH THAT AT LAW, OR THE SUIT IS BROUGHT IN AID OF A LEGAL
RIGHT, EQUITY WILL WITHHOLD ITS REMEDY IF THE LEGAL RIGHT IS BARRED BY
THE LOCAL STATUTE OF LIMITATIONS.  P. 289. 

7.  WHERE THE FEDERAL EQUITY JURISDICTION IS EXCLUSIVE AND IS NOT
EXERCISED IN AID OF A LEGAL RIGHT, STATE STATUTES OF LIMITATIONS
BARRING ACTIONS AT LAW ARE INAPPLICABLE; AND IN THE ABSENCE OF ANY
STATE STATUTE BARRING THE EQUITABLE REMEDY IN LIKE CASES, THE FEDERAL
COURT IS REMITTED TO AND APPLIES THE DOCTRINE OF LACHES AS
CONTROLLING.  P. 289. 

8.  IN THE ABSENCE OF A CONTROLLING ACT OF CONGRESS, FEDERAL COURTS
OF EQUITY, IN ENFORCING RIGHTS ARISING UNDER FEDERAL STATUTES, WILL,
WITHOUT REFERENCE TO THE RULES OF DECISION ACT, ADOPT AND APPLY LOCAL
STATUTES OF LIMITATIONS WHICH ARE APPLIED TO LIKE CAUSES OF ACTION BY
THE STATE COURTS.  P. 293. 

9.  SEC. 49 OF THE NEW YORK CIVIL PRACTICE ACT, BARRING IN THREE
YEARS ACTIONS AGAINST DIRECTORS OR STOCKHOLDERS OF MONEYED CORPORATIONS
OR BANKING ASSOCIATIONS TO ENFORCE A LIABILITY CREATED BY THE COMMON
LAW OR BY STATUTE, APPEARS TO HAVE BEEN CONSTRUED BY THE STATE COURTS
AS INAPPLICABLE TO SUITS WHERE THE REMEDY IS EXCLUSIVELY EQUITABLE. 
HELD, THAT THE PRESENT EQUITABLE CAUSE OF ACTION GIVEN BY SEC. 16 OF
THE FEDERAL FARM LOAN ACT IS NOT BARRED BY THE THREE YEAR STATUTE OF
LIMITATIONS PRESCRIBED BY THAT SECTION.  PP. 290, 293. 

10.  THE EXTENT TO WHICH FEDERAL COURTS, IN THE EXERCISE OF THE
AUTHORITY CONFERRED UPON THEM BY CONGRESS TO ADMINISTER EQUITABLE
REMEDIES, ARE BOUND TO FOLLOW STATE STATUTES AND DECISIONS AFFECTING
THOSE REMEDIES, IS NOT CONSIDERED.  P. 294. 

RUSSELL ET AL., CO-PARTNERS, V. TODD ET AL., CO-PARTNERS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 308 U.S. 541, TO REVIEW THE AFFIRMANCE OF A DECREE, 1
F.SUPP.  788; 20 ID. 930, 936, WHICH OVERRULED A PLEA OF THE STATUTE OF
LIMITATIONS AND GRANTED RELIEF TO THE PLAINTIFFS IN A SUIT TO ENFORCE
SHAREHOLDERS' LIABILITY FOR DEBTS OF AN INSOLVENT JOINT STOCK LAND
BANK. 

THE THREE-YEAR LIMITATION BARS THE ACTION. 

NO DISTINCTION IS MADE BETWEEN ACTIONS IN EQUITY AND THOSE AT LAW. 
CIVIL PRACTICE ACT, SEC. 49; WRIGHT V. RUSSELL, 269 N.Y. 683; REISMAN
V. HALL, 257 APP. DIV. 892; NETTLES V. CHILDS, 281 N.Y. 636; SCHRAM V.
COTTON, 281 N.Y. 499.  THE TEN-YEAR LIMITATION IS INAPPLICABLE. 

UNDER NEW YORK LAW LACHES ALONE IS NOT A DEFENSE AGAINST A CLAIM OF
RIGHT.  POLLITZ V. WABASH R. CO., 207 N.Y. 113.  LACHES NOW SUBSISTS IN
NEW YORK AS AN EQUITABLE DEFENSE ONLY, IN CASES WHERE THE FAVOR OR
DISCRETION OF THE COURT IS SOUGHT, AND SERVES TO SHORTEN, BUT NEVER TO
EXTEND, THE TIME LIMITED BY THE STATUTE OF LIMITATIONS.  GROESBECK V.
MORGAN, 206 N.Y. 385, 389; CALHOUN V. MILLARD, 121 N.Y. 69, 82;
GOLDBERG V. BERRY, 231 APP.  DIV. 165, 170; COGHLAN V. COGHLAN &
SHUTTLEWORTH, INC., 226 APP. DIV. 764.  THE CONCEPT OF LACHES
SUPPLANTING LIMITATIONS AND THUS EXTENDING THE PERIOD IN WHICH AN
ACTION WOULD OTHERWISE BE BARRED BY THE STATUTE HAS BEEN SINCE AT LEAST
1848 UTTERLY FOREIGN TO THE LAW OF NEW YORK.  A FIXED LIMITATION OF
TIME HAS BEEN IMPOSED UPON EVERY REMEDY, LEGAL AND EQUITABLE.  GILMORE
V. HAM, 142 N.Y. 1.  THE NEW YORK COURTS HAVE APPLIED THESE LIMITATIONS
STRICTLY, AND HAVE REFUSED TO VARY THEM EVEN IN CASES OF HARDSHIP. 
SCHMIDT V. MERCHANTS DISPATCH CO., 270 N.Y. 287; MATTER OF CITY OF NEW
YORK, 239 N.Y. 220, 225; ERICKSON V. MACY, 236 N.Y. 412, 415; GILMORE
V. HAM, SUPRA; ENGEL V. FISCHER, 102 N.Y. 400; STREETER V. GRAHAM &
NORTON CO., 263 N.Y. 39. 

LACHES IS A MATTER OF SUBSTANTIVE LAW.  IT AFFECTS THE RIGHT, NOT
MERELY THE REMEDY.  TO APPLY SUCH A DOCTRINE OF SUBSTANTIVE LAW IN A
STATE WHERE IT IS NO LONGER RECOGNIZED, TO GOVERN CLAIMS OF RIGHT, IS A
PLAIN VIOLATION OF THE RULE OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64,
AND RUHLIN V. NEW YORK LIFE INS. CO., 304 U.S. 202.  THE DOCTRINE OF
LACHES RELIED UPON BELOW IS BASED UPON THE THEORY OF A GENERAL FEDERAL
EQUITY JURISPRUDENCE, AND MUST FALL WITH IT. 

INDEPENDENTLY OF THE NEW YORK RULE, EXISTING FEDERAL PRECEDENTS
REQUIRED THE APPLICATION TO THIS CASE OF LIMITATIONS, RATHER THAN
LACHES, BY REASON OF THE CONCURRENT JURISDICTION OF LAW AND EQUITY. 

JURISDICTION HEREIN LIES PRIMARILY AT LAW BY VIRTUE OF THE FACT THAT
MONEY IS THE MEASURE OF THE LIABILITY IMPOSED UPON PETITIONERS BY THE
STATUTE, 12 U.S.C. SEC. 812.  WEEKS V. LOVE, 50 N.Y. 568, 570; VAN HOOK
V. WHITLOCK, 3 PAIGE CH. 409, 416, 417.  TRUE, THE STATUTE IMPOSES
LIABILITY UPON THE SHAREHOLDERS "EQUALLY AND RATABLY, AND NOT ONE FOR
ANOTHER."  IN SOME CASES THIS LANGUAGE MIGHT BE DEEMED TO REQUIRE AN
ACCOUNTING AMONG ALL THE SHAREHOLDERS IN ORDER TO ASSURE THE
PROPORTIONATE PAYMENT OF HIS LIABILITY BY EACH, BUT ANY SUCH
POSSIBILITY IS EXCLUDED HERE BY THE FACT THAT THE ASSESSMENT REQUIRED
IS 100%.  EACH OF THE DEFENDANT SHAREHOLDERS WAS LIABLE IN FULL. 

UNDER NEW YORK CIVIL PRACTICE ACT, SEC. 195, WHICH AT THE INCEPTION
OF THIS ACTION WAS AVAILABLE TO THE PLAINTIFFS UNDER THE CONFORMITY
ACT, 28 U.S.C. SEC. 724, THE PLAINTIFFS COULD HAVE STATED A
REPRESENTATIVE CLAIM AT LAW IN THE DISTRICT COURT FOR THE BENEFIT OF
ALL THE CREDITORS, WITHOUT RESORT TO EQUITY.  MCKENZIE V. L'AMOUREUX,
11 BARB.  516; KIRK V. YOUNG, 2 ABB.  PR. 453; CHERRY V. HOWELL, 4
F.SUPP.  597, 599. 

THE ONLY REASON ADDUCED FOR MAINTAINING THE EXCLUSIVE JURISDICTION OF
EQUITY IN THIS CASE IS THAT THE RECEIVER OF A JOINT STOCK LAND BANK CAN
NOT HIMSELF SUE TO ENFORCE THE SHAREHOLDERS' STATUTORY LIABILITY. 
WHEELER V. GREENE, 280 U.S. 49. 

THE JURISDICTION OF EQUITY HEREIN IS AT MOST CONCURRENT AND DOES NOT
AFFECT THE OPERATION OF THE STATUTE OF LIMITATIONS AT LAW.  CURTIS V.
CONNLY, 257 U.S. 260; MCDONALD V. THOMPSON, 184 U.S. 71; MORGAN V.
HAMLET, 113 U.S. 449. 

THIS COURT HAS APPLIED THE STATUTE OF LIMITATIONS AT LAW TO EQUITABLE
ACTIONS IN FORM INDISTINGUISHABLE FROM THE PRESENT.  POLLARD V. BAILEY,
20 WALL.  520; TERRY V. LITTLE, 101 U.S. 216; CARROL V. GREEN, 92 U.S.
509; GODFREY V. TERRY, 97 U.S. 171; CLARKE V. BOORMAN'S EXECUTORS, 18
WALL.  493, 505, 506; BACON V. HOWARD, 20 HOW.  22, 26; BOONE COUNTY V.
BURLINGTON R. CO., 139 U.S. 684, 692; PEARSALL V. SMITH, 149 U.S. 231,
237; WILSON V. KOONTZ, 7 CRANCH 202, 205-6. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION DECISIVE OF THIS CASE IS WHETHER, IN A SUIT BROUGHT IN
THE FEDERAL DISTRICT COURT IN NEW YORK TO ENFORCE THE STATUTORY
LIABILITY OF SHAREHOLDERS OF A JOINT STOCK LAND BANK FOR ITS DEBTS, THE
COURT RIGHTLY DECLINED TO APPLY THE THREE-YEAR STATE STATUTE OF
LIMITATIONS. 

RESPONDENTS TODD, WORK AND WEISS, COPARTNERS, IN BEHALF OF THEMSELVES
AND OTHER CREDITORS OF THE INSOLVENT OHIO JOINT STOCK LAND BANK OF
CINCINNATI, OHIO, BROUGHT SUIT IN THE DISTRICT COURT FOR SOUTHERN NEW
YORK AGAINST PETITIONERS, COPARTNERS, TO ENFORCE THEIR LIABILITY AS
RECORD SHAREHOLDERS OF THE BANK UNDER SEC. 16 OF THE FEDERAL FARM LOAN
ACT, 39 STAT. 374, 12 U.S.C. SEC. 812.  PETITIONERS, AMONG OTHER
DEFENSES, PLEADED THE NEW YORK THREE-YEAR STATUTE OF LIMITATIONS.  SEC.
49(4) N.Y. CIVIL PRACTICE ACT.  THE DISTRICT COURT FOUND, AS IS
CONCEDED HERE, THAT THE CAUSE OF ACTION ACCRUED APRIL 6, 1928; THAT
PLAINTIFFS IN THE SUIT HAD NOTICE OF ITS ACCRUAL ON APRIL 15, 1928, AND
THAT THE SUIT WAS COMMENCED THREE YEARS AND EIGHT MONTHS LATER, ON
DECEMBER 16, 1931.  IT OVERRULED THE PLEA OF LIMITATIONS AND GAVE
JUDGMENT FOR RESPONDENTS.  1 F.SUPP.  788; 20 F.SUPP.  930, 936.  THE
COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED, 104 F.2D 169. 

BOTH COURTS, HOLDING THAT THE SUIT WAS EXCLUSIVELY WITHIN THE EQUITY
JURISDICTION OF THE COURT, RULED THAT THE DOCTRINE OF LACHES AND NOT
THE STATE STATUTE OF LIMITATIONS WAS APPLICABLE, AND HELD THAT
RESPONDENTS HAD NOT BEEN GUILTY OF LACHES.  WE GRANTED CERTIORARI, 308
U.S. 541, LIMITED TO THE QUESTION OF THE APPLICATION OF THE NEW YORK
STATUTE, UPON A PETITION WHICH CHALLENGED THE DECISION BELOW AS IN
CONFLICT WITH THE DECISIONS OF THIS COURT APPLYING THE THREE-YEAR
STATUTE OF LIMITATIONS IN A SUIT TO ENFORCE THE LIABILITY OF
STOCKHOLDERS OF A STATE BANK IN PLATT V. WILMOT, 193 U.S. 602; CF. AS
TO LIABILITY OF STOCKHOLDERS OF NATIONAL BANKS, MCDONALD V. THOMPSON,
184 U.S. 71; MCCLAINE V. RANKIN, 197 U.S. 154. 

SHAREHOLDERS OF EVERY JOINT STOCK LAND BANK "SHALL BE HELD INDIVIDUALLY
RESPONSIBLE, EQUALLY AND RATABLY, AND NOT ONE FOR ANOTHER, FOR ALL  ...
DEBTS  ...  OF SUCH BANK TO THE EXTENT OF THE AMOUNT OF STOCK OWNED BY
THEM AT THE PAR VALUE THEREOF.  ...  "  UNLIKE THE COMPARABLE
PROVISIONS OF THE NATIONAL BANK ACT, R.S. SECS. 5151, 5234, 12 U.S.C.
SECS. 63, 192, WHICH AUTHORIZE THE RECEIVER OF A NATIONAL BANK TO
ENFORCE THE LIABILITY OF STOCKHOLDERS OF AN INSOLVENT NATIONAL BANK
ASSESSED AGAINST THEM BY THE COMPTROLLER OF THE CURRENCY, THIS SECTION
OF THE FEDERAL FARM LOAN ACT CONFERS NO POWER ON THE RECEIVER OF A FARM
LOAN BANK TO LEVY AN ASSESSMENT ON THE STOCKHOLDERS OF AN INSOLVENT
BANK OR TO MAINTAIN A SUIT TO ENFORCE THEIR LIABILITY.  WHEELER V.
GREENE, 280 U.S. 49; CHRISTOPHER V. BRUSSELBACK, 302 U.S. 500, 502;
BRUSSELBACK V. CAGO CORPORATION, 85 F.2D 20. 

AS THE LIABILITY OF THE STOCKHOLDERS AS PRESCRIBED BY THIS SECTION IS
TO PAY "EQUALLY AND RATABLY," THE SOLE REMEDY IS BY PLENARY
REPRESENTATIVE SUIT BROUGHT IN EQUITY IN BEHALF OF ALL CREDITORS OF THE
BANK, IN WHICH THE EXISTENCE AND EXTENT OF INSOLVENCY, AND THE RATABLE
SHARES OF THE CONTRIBUTION BY SHAREHOLDERS CAN BE ASCERTAINED AND AN
EQUITABLE DISTRIBUTION MADE OF THE FUND RECOVERED.  BUT THIS AMOUNT
CANNOT BE DETERMINED AND ITS DISTRIBUTION EFFECTED WITHOUT RESORT TO
THE PROCEDURES TRADITIONALLY EMPLOYED BY EQUITY UPON A BILL FOR AN
ACCOUNTING AND FOR THE DISTRIBUTION OF A FUND BROUGHT INTO ITS
CUSTODY.  NO STOCKHOLDER IS LIABLE FOR MORE THAN HIS PROPORTION OF THE
DEBTS NOT EXCEEDING THE PAR VALUE OF HIS STOCK.  HIS PROPORTION CAN BE
ASCERTAINED ONLY UPON AN ACCOUNTING OF THE DEBTS AND OF THE STOCK AND A
PRO RATA DISTRIBUTION OF THE LIABILITY AMONG THE SHAREHOLDERS AND OF
THE PROCEEDS OF RECOVERY AMONG THE CREDITORS.  SUCH A SUIT DURING ITS
PROGRESS AND AT ITS CONCLUSION BY A FINAL DECREE OF DISTRIBUTION
REQUIRES THE EXERCISE OF POWERS WHICH ARE PECULIARLY THOSE OF A COURT
OF EQUITY TO BRING BEFORE IT IN A SINGLE SUIT ALL THE NECESSARY PARTIES
TO ASCERTAIN THEIR RIGHTS AND LIABILITIES, AND TO ADJUST AND SETTLE
THEM BY ITS DECREES.  POLLARD V. BAILEY, 20 WALL.  520; TERRY V.
LITTLE, 101 U.S. 216; RICHMOND V. IRONS, 121 U.S. 27; CHRISTOPHER V.
BRUSSELBACK, SUPRA. 

WHEN THE RECEIVER OR OFFICER PERFORMING LIKE FUNCTIONS IS AUTHORIZED
BY STATUTE TO ASSESS THE SHAREHOLDERS, THE ASSESSMENT IS BINDING ON
THEM BY REASON OF THEIR MEMBERSHIP IN THE CORPORATION, AND EACH
SHAREHOLDER THEN BECOMES LIABLE IN A SUIT AT LAW FOR THE AMOUNT OF THE
ASSESSMENT.  SEE CHRISTOPHER V. BRUSSELBACK, SUPRA, 503, AND CASES
CITED.  IT IS FOR THIS REASON THAT THERE IS A DIVERGENCE BETWEEN THE
PROCEDURE FOR RECOVERING ASSESSMENTS OF SHAREHOLDERS OF NATIONAL BANKS,
AND THAT FOR ENFORCING THE LIABILITY OF SHAREHOLDERS IN A FEDERAL LAND
BANK.  IN THE LATTER CASE THERE IS NO LEGAL REMEDY, THE RELIEF BEING
AFFORDED EXCLUSIVELY IN EQUITY.  THE TEST OF THE INADEQUACY OF THE
LEGAL REMEDY PREREQUISITE TO RESORT TO A FEDERAL COURT OF EQUITY IS THE
LEGAL REMEDY WHICH FEDERAL RATHER THAN STATE COURTS AFFORD.  DI
GIOVANNI V. CAMDEN FIRE INSURANCE ASSN., 296 U.S. 64; ATLAS LIFE
INSURANCE CO. V. SOUTHERN, INC., 306 U.S. 563.  AND THE JURISDICTION OF
FEDERAL COURTS OF EQUITY, AS DETERMINED BY THAT TEST, IS NEITHER
ENLARGED NOR DIMINISHED BY THE NAMES GIVEN TO REMEDIES OR THE
DISTINCTION MADE BETWEEN THEM BY STATE PRACTICE.  STRATTON V. ST. LOUIS
S.W. RY. CO., 284 U.S. 530, 534. 

THE PRESENT SUIT IS NOT ANY THE LESS IN EQUITY BECAUSE IT TURNS OUT
THAT THE LIABILITY OF THE SHAREHOLDERS EQUALS THE FULL PAR-VALUE OF
THEIR STOCK.  THE AMOUNT OF THE LIABILITY COULD NOT BE DETERMINED AND
ASSESSED WITHOUT AN ACCOUNTING OF ASSETS AND LIABILITIES, AND
DISTRIBUTION COULD NOT BE EFFECTED AMONG CREDITORS WITHOUT RESORT TO
THE POWER TRADITIONALLY THAT OF A COURT OF EQUITY TO MAKE ITS
DETERMINATION OF THE RIGHTS OF THE PARTIES EFFECTIVE THROUGH ITS
DECREES IN PERSONAM.  HERE THE DECREE DIRECTS PAYMENT INTO COURT OF THE
AMOUNT FOUND TO BE DUE, FOR DISTRIBUTION AMONG THE CREDITORS IN
CONFORMITY TO THE FURTHER ORDER OF THE COURT. 

THE SUIT BEING IN EQUITY, BROUGHT IN A FEDERAL DISTRICT COURT, THE
QUESTION DECISIVE OF THIS CASE IS WHAT LAPSE OF TIME WILL BAR RECOVERY
IN THE ABSENCE OF AN APPLICABLE FEDERAL STATUTE OF LIMITATIONS.  THE
RULES OF DECISION ACT DOES NOT APPLY TO SUITS IN EQUITY.  SECTION 34 OF
THE JUDICIARY ACT OF 1789, 28 U.S.C. 725, DIRECTING THAT THE "LAWS OF
THE SEVERAL STATES" "SHALL BE REGARDED AS RULES OF DECISION" IN THE
COURTS OF THE UNITED STATES, APPLIES ONLY TO THE RULES OF DECISION IN
"TRIALS AT COMMON LAW" IN SUCH COURTS, BUT APPLIES AS WELL TO RULES
ESTABLISHED BY JUDICIAL DECISION IN THE STATES AS THOSE ESTABLISHED BY
STATUTE.  ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 

FROM THE BEGINNING, EQUITY, IN THE ABSENCE OF ANY STATUTE OF
LIMITATIONS MADE APPLICABLE TO EQUITY SUITS, HAS PROVIDED ITS OWN RULE
OF LIMITATIONS THROUGH THE DOCTRINE OF LACHES, THE PRINCIPLE THAT
EQUITY WILL NOT AID A PLAINTIFF WHOSE UNEXCUSED DELAY, IF THE SUIT WERE
ALLOWED, WOULD BE PREJUDICIAL TO THE DEFENDANT.  WAGNER V. BAIRD, 7
HOW.  234, 258; STEARNS V. PAGE, 7 HOW.  819, 828, 829; PHILIPPI V.
PHILIPPE, 115 U.S. 151, 157; UNITED STATES V. BEEBE, 127 U.S. 338;
CURTNER V. UNITED STATES, 149 U.S. 662, 676; ALSOP V. RIKER, 155 U.S.
448, 460; ABRAHAM V. ORDWAY, 158 U.S. 416, 420.  IN THE APPLICATION OF
THE DOCTRINE OF LACHES IT RECOGNIZED THAT PREJUDICE MAY ARISE FROM
DELAY ALONE, SO PROLONGED THAT IN THE NORMAL COURSE OF EVENTS EVIDENCE
IS LOST OR OBSCURED; AND THE ENGLISH COURT OF CHANCERY EARLY ADOPTED
THE RULE, FOLLOWED IN THE FEDERAL COURTS, THAT SUITS TO ASSERT
EQUITABLE INTERESTS IN REAL ESTATE WILL, WITHOUT MORE, BE BARRED AFTER
THE LAPSE OF TWENTY YEARS WHEN EJECTMENT OR THE RIGHT OF ENTRY FOR THE
ASSERTION OF A COMPARABLE LEGAL INTEREST IN THE LAND WOULD BE BARRED. 
ELMENDORF V. TAYLOR, 10 WHEAT.  152, 173; HOVENDEN V. LORD ANNESLY, 2
SCH.  & LEF.  607.  AND WHERE RESORT WAS HAD TO EQUITY IN AID OF A
LEGAL RIGHT, EQUITY, FOLLOWING THE LAW, WOULD REFUSE ITS AID IF THE
LEGAL RIGHT HAD BEEN BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS. 
CARROL V. GREEN, 92 U.S. 509; GODDEN V. KIMMELL, 99 U.S. 201, 210; WOOD
V. CARPENTER, 101 U.S. 135; PHILIPPI V. PHILIPPE, SUPRA; MCDONALD V.
THOMPSON, SUPRA; POMEROY, EQUITY JURISPRUDENCE (4TH ED.), SEC. 1441 AND
CASES CITED.    IN FEDERAL COURTS OF EQUITY THE DOCTRINE OF LACHES WAS
EARLY SUPPLEMENTED BY THE RULE THAT WHEN THE QUESTION IS OF LAPSE OF
TIME BARRING RELIEF IN EQUITY, SUCH COURTS, EVEN THOUGH NOT REGARDING
THEMSELVES AS BOUND BY STATE STATUTES OF LIMITATIONS, WILL
NEVERTHELESS, WHEN CONSONANT WITH EQUITABLE PRINCIPLES, ADOPT AND APPLY
AS THEIR OWN, THE LOCAL STATUTE OF LIMITATIONS APPLICABLE TO THE
EQUITABLE CAUSES OF ACTION IN THE JUDICIAL DISTRICT IN WHICH THE CASE
IS HEARD.  BACON V. HOWARD, 20 HOW.  22, 26; CLARKE V. BOORMAN'S
EXECUTORS, 18 WALL.  493, 505, 506; BOONE COUNTY V. BURLINGTON & M.R.R.
CO., 139 U.S. 684, 692; PEARSALL V. SMITH, 149 U.S. 231, 233, 237;
BENEDICT V. CITY OF NEW YORK, 250 U.S. 321.  FN1    EVEN THOUGH THERE
IS NO STATE STATUTE APPLICABLE TO SIMILAR EQUITABLE DEMANDS, WHEN THE
JURISDICTION OF THE FEDERAL COURT IS CONCURRENT WITH THAT AT LAW, OR
THE SUIT IS BROUGHT IN AID OF A LEGAL RIGHT, EQUITY WILL WITHHOLD ITS
REMEDY IF THE LEGAL RIGHT IS BARRED BY THE LOCAL STATUTE OF
LIMITATIONS.  IT THUS STAYS ITS HAND IN AID OF A LEGAL RIGHT WHICH,
UNDER THE RULES OF DECISION ACT, WOULD BE UNENFORCIBLE IN THE FEDERAL
COURTS OF LAW AS WELL AS IN THE STATE COURTS.  WILSON V. KOONTZ, 7
CRANCH 202, 205-6; MICHOUD V. GIROD, 4 HOW.  503, 561; STEARNS V. PAGE,
7 HOW.  819; CLARKE V. BOORMAN'S EXECUTORS, SUPRA, 505; CARROL V.
GREEN, SUPRA; GODFREY V. TERRY, 97 U.S. 171, 176, 180; BAKER V.
CUMMINGS, 169 U.S. 189; METROPOLITAN BANK V. ST. LOUIS DISPATCH CO.,
149 U.S. 436; MCDONALD V. THOMPSON, SUPRA; HUGHES V. REED, 46 F.2D 435;
CF. WAGNER V. BAIRD, 7 HOW.  234; GODDEN V. KIMMELL, SUPRA; WOOD V.
CARPENTER, SUPRA. 

BUT WHERE THE EQUITY JURISDICTION IS EXCLUSIVE AND IS NOT EXERCISED
IN AID OR SUPPORT OF A LEGAL RIGHT, STATE STATUTES OF LIMITATIONS
BARRING ACTIONS AT LAW ARE INAPPLICABLE, AND IN THE ABSENCE OF ANY
STATE STATUTE BARRING THE EQUITABLE REMEDY IN LIKE CASES, THE FEDERAL
COURT IS REMITTED TO AND APPLIES THE DOCTRINE OF LACHES AS
CONTROLLING.  WAGNER V. BAIRD, SUPRA, 258; BADGER V. BADGER, 2 WALL. 
87, 94-5; KIRBY V. LAKE SHORE & MICHIGAN SOUTHERN R. CO., 120 U.S. 130,
139; METROPOLITAN BANK V. ST. LOUIS DISPATCH CO., SUPRA, 448; SPEIDEL
V. HENRICI, 120 U.S. 377, 386, 387; SEE SOUTHERN PACIFIC CO. V. BOGERT,
250 U.S. 483, WHERE NO STATUTE OF LIMITATIONS WAS PLEADED, 244 F. 61,
65. 

THE QUESTION REMAINS WHETHER THE COURT BELOW CORRECTLY HELD THAT THE
DOCTRINE OF LACHES AND NOT THE LOCAL THREE-YEAR STATUTE OF LIMITATIONS
IS CONTROLLING.  THE PRESENT SUIT BEING, AS WE HAVE SEEN AND AS THE
COURT BELOW HELD, EXCLUSIVELY OF EQUITABLE COGNIZANCE, IN THAT IT IS
NOT PREDICATED UPON ANY LEGAL CAUSE OF ACTION, THE STATUTE IS NOT ONE
WHICH A FEDERAL COURT OF EQUITY WILL ADOPT AND APPLY AS A SUBSTITUTE
FOR OR A SUPPLEMENT TO ITS OWN DOCTRINE OF LACHES, UNLESS IT IS APPLIED
TO LIKE CAUSES OF ACTION IN THE STATE COURTS. 

THE PRESENT SUIT WAS BROUGHT IN LESS THAN FOUR YEARS AFTER THE CAUSE
OF ACTION HAD ACCRUED, AND IT IS CONCEDED THAT THE CAUSE OF ACTION IS
NOT BARRED UNLESS BY THE THREE-YEAR STATUTE.  SECTION 49 OF THE CIVIL
PRACTICE ACT PROVIDES THAT "THE FOLLOWING ACTIONS MUST BE COMMENCED
WITHIN THREE YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED:   ...  (4) AN
ACTION AGAINST A DIRECTOR OR STOCKHOLDER OF A MONEYED CORPORATION, OR
BANKING ASSOCIATION  ...  TO ENFORCE A LIABILITY CREATED BY THE COMMON
LAW OR BY STATUTE.  THE CAUSE OF ACTION IS NOT DEEMED TO HAVE ACCRUED
UNTIL THE DISCOVERY BY THE PLAINTIFF OF THE FACTS UNDER WHICH  ...  THE
LIABILITY WAS CREATED."  THIS COURT HAS RECOGNIZED THAT THIS STATUTE IS
A BAR TO ACTIONS AT LAW AND HAS SO APPLIED IT IN SUITS TO RECOVER
ASSESSMENTS ON SHAREHOLDERS OF A BANK.  SEE PLATT V. WILMOT, SUPRA. 

RESPONDENTS, ADMITTING THAT THE STATUTE IS A BAR TO SUITS AT LAW,
ARGUE THAT IT IS INAPPLICABLE TO SUITS IN EQUITY AND THAT WHEN THE
REMEDY AT LAW IS SO INADEQUATE THAT RESORT MUST BE HAD TO REMEDIES
WHICH ARE TRADITIONALLY EQUITABLE, THE LIMITATION IS NOT THAT OF THE
THREE-YEAR BUT OF THE TEN-YEAR STATUTE, WHICH IS MADE APPLICABLE TO ALL
ACTIONS FOR WHICH NO LIMITATION IS OTHERWISE SPECIALLY PRESCRIBED. 
SEC. 53, N.Y. CIVIL PRACTICE ACT. 

AT THE OUTSET WE ARE CONFRONTED WITH THOSE CASES IN WHICH THIS COURT
IN MCDONALD V. THOMPSON, SUPRA, AND THE STATE COURTS  FN2  HAVE
RECOGNIZED AND APPLIED THE STATUTORY BAR TO AN ACTION AT LAW TO EQUITY
SUITS BROUGHT IN AID OF THE LEGAL RIGHT TO RECOVER AN ASSESSMENT UPON
STOCKHOLDERS.  BUT AS WE HAVE SEEN, THOSE CASES ARE REFERABLE TO THE
DOCTRINE ACCEPTED AND APPLIED IN THE FEDERAL COURTS OF EQUITY THAT
EQUITY DOES NOT GIVE RELIEF PREDICATED ON A LEGAL RIGHT WHICH THE
STATUTE HAS BARRED. 

HERE THE JURISDICTION BEING EXCLUSIVELY IN EQUITY TO ENFORCE RIGHTS
COGNIZABLE ONLY IN EQUITY, STATUTES BARRING LEGAL CAUSES OF ACTION, AS
WE HAVE SEEN, ARE NOT CONTROLLING AND WE TURN TO THE ARGUMENT OF
PETITIONERS THAT THE THREE-YEAR STATUTE IS A BAR AS WELL TO SUCH SUITS
BROUGHT IN THE STATE COURTS, EVEN THOUGH THEY ARE SUITS IN WHICH IT IS
NECESSARY TO RESORT TO REMEDIES WHICH ARE EXCLUSIVELY OR TRADITIONALLY
EQUITABLE. 

THE PRECISE QUESTION THUS RAISED APPEARS NOT TO HAVE BEEN DECIDED BY
THE NEW YORK COURT OF APPEALS.  IN MENCHER V. RICHARDS, 256 APP. DIV.
280; 9 N.Y.S.2D 990, WHICH WAS A STOCKHOLDERS' SUIT BROUGHT AGAINST
DIRECTORS OF A MONEYED CORPORATION FOR AN ACCOUNTING FOR PROFITS GAINED
THROUGH THEIR MALFEASANCE IN OFFICE, THE APPELLATE DIVISION OF THE
SUPREME COURT HELD THAT THE THREE-YEAR STATUTE DID NOT APPLY.  IT
POINTED OUT THAT THE STATUTE RELATES ONLY TO CAUSES OF ACTION FOR WHICH
A MONEY JUDGMENT WILL SUFFICE AND NOT TO SUITS WHICH, ALTHOUGH
SPECIFICALLY WITHIN THE LANGUAGE OF THE STATUTE, REQUIRE RESORT TO THE
EQUITABLE REMEDY FOR AN ACCOUNTING, AND THAT AS TO THEM THE TEN-YEAR
STATUTE APPLIES.  IN SO CONSTRUING THE STATUTE, IT FOLLOWED THE RULINGS
OF THE COURT OF APPEALS THAT UNDER THE NEW YORK STATUTORY SCHEME OF
LIMITATIONS, SUITS IN EQUITY BROUGHT AGAINST CORPORATE DIRECTORS FOR AN
ACCOUNTING FOR WANT OF AN ADEQUATE LEGAL REMEDY ARE GOVERNED BY THE TEN
YEAR STATUTE OF LIMITATIONS AND NOT STATUTES FIXING A SHORTER PERIOD OF
LIMITATIONS WHICH WOULD BE APPLICABLE IF THE SUIT WERE AT LAW.  HANOVER
FIRE INSURANCE CO. V. MORSE DRY DOCK & REPAIR CO., 270 N.Y. 86; 200
N.E. 589; POTTER V. WALKER, 276 N.Y. 15; 11 N.E.2D 335.  FN3  CF.
GILMORE V. 142 N.Y. 1; 36 N.E. 826; TREADWELL V. CLARK, 190 N.Y. 51; 82
N.E. 505. 

IN THE ABSENCE OF A DEFINITIVE RULING BY THE HIGHEST COURT OF THE
STATE, WE ACCEPT THE DECISION OF THE APPELLATE DIVISION AND THE
REASONING OF THE COURT OF APPEALS UPON WHICH IT RESTS AS PERSUASIVE
THAT THE THREE-YEAR STATUTE DOES NOT APPLY TO SUITS LIKE THE PRESENT
WHERE THE REMEDY IS EXCLUSIVELY EQUITABLE.  SEE WICHITA ROYALTY CO. V.
CITY BANK, 306 U.S. 103, 107. 

WE TAKE IT THAT IN THE ABSENCE OF A CONTROLLING ACT OF CONGRESS
FEDERAL COURTS OF EQUITY, IN ENFORCING RIGHTS ARISING UNDER STATUTES OF
THE UNITED STATES, WILL WITHOUT REFERENCE TO THE RULES OF DECISION ACT
ADOPT AND APPLY LOCAL STATUTES OF LIMITATIONS WHICH ARE APPLIED TO LIKE
CAUSES OF ACTION BY THE STATE COURTS.  CF. MASON V. UNITED STATES, 260
U.S. 545; JACKSON COUNTY V. UNITED STATES, 308 U.S. 343.  IN THUS
GIVING EFFECT TO STATE STATUTES OF LIMITATIONS AS A SUBSTITUTE OR
SUPPLEMENT FOR THE EQUITABLE DOCTRINE OF LACHES, IT MUST APPEAR WITH
REASONABLE CERTAINTY THAT THERE IS A STATE STATUTE APPLICABLE TO LIKE
CAUSES OF ACTION.  AS THAT DOES NOT APPEAR HERE WITH RESPECT TO THE
THREE-YEAR STATUTE, THE COURT BELOW RIGHTLY DECLINED TO GIVE EFFECT TO
THAT STATUTE AND AS IT FOUND THAT THE CAUSE OF ACTION WAS NOT BARRED BY
LACHES, IT RIGHTLY GAVE JUDGMENT FOR RESPONDENTS. 

PETITIONERS ARGUE THAT UNDER NEW YORK LAW, LACHES IS NOT A DEFENSE TO
ACTIONS LIKE THE PRESENT AND THAT IN THE LIGHT OF OUR DECISIONS IN ERIE
R. CO. V. TOMPKINS, SUPRA, RUHLIN V. NEW YORK LIFE INSURANCE CO., 304
U.S. 202, FEDERAL COURTS IN THE EXERCISE OF THE EQUITY JURISDICTION
CONFERRED UPON THEM BY SEC. 24 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 41,
ARE NO LONGER FREE TO APPLY A DIFFERENT RULE.  BUT IN THIS CASE LACHES
HAS NOT BEEN HELD TO BE A DEFENSE AND THE COURT HAS NOT DECLINED TO
GIVE EFFECT TO A STATE STATUTE SHOWN TO BE APPLICABLE.  IN THE
CIRCUMSTANCES WE HAVE NO OCCASION TO CONSIDER THE EXTENT TO WHICH
FEDERAL COURTS, IN THE EXERCISE OF THE AUTHORITY CONFERRED UPON THEM BY
CONGRESS TO ADMINISTER EQUITABLE REMEDIES, ARE BOUND TO FOLLOW STATE
STATUTES AND DECISIONS AFFECTING THOSE REMEDIES.  AFFIRMED. 

FN1  BUT FEDERAL COURTS OF EQUITY HAVE NOT ALWAYS HELD THEMSELVES
BOUND TO FOLLOW LOCAL STATUTES WHICH IN ORDINARY CIRCUMSTANCES THEY
COULD ADOPT AND APPLY BY ANALOGY.  IN EACH CASE THE REFUSAL HAS BEEN
PLACED UPON THE GROUND OF SPECIAL EQUITABLE DOCTRINES, MAKING IT
INEQUITABLE TO APPLY THE STATUTE.  LACHES MAY BAR EQUITABLE REMEDY
BEFORE THE LOCAL STATUTE HAS RUN.  ALSOP V. RIKER, 155 U.S. 448, 460,
461; ABRAHAM V. ORDWAY, 158 U.S. 416; PATTERSON V. HEWITT, 195 U.S.
309, 318, ET SEQ.; BADGER V. BADGER, 2 CLIFFORD 137, 154; LEMOINE V.
DUNKLIN COUNTY, 51 F. 487, 492; KELLEY V. BOETTCHER, 85 F. 55, 62;
POOLER V. HYNE, 213 F. 154, 159.  ON THE OTHER HAND, TIME HAS BEEN HELD
TO BE NO BAR TO AN EQUITABLE SUIT FOR A TRUSTEE'S ACCOUNTING.  MICHOUD
V. GIROD, 4 HOW.  503, 561; CF. BADGER V. BADGER, 2 WALL.  87, 92;
SOUTHERN PACIFIC CO. V. BOGERT, 250 U.S. 483.  FEDERAL COURTS OF EQUITY
HAVE NOT CONSIDERED THEMSELVES OBLIGATED TO APPLY LOCAL STATUTES OF
LIMITATIONS WHEN THEY CONFLICT WITH EQUITABLE PRINCIPLES, AS WHERE THEY
APPLY, IRRESPECTIVE OF THE PLAINTIFF'S IGNORANCE OF HIS RIGHTS BECAUSE
OF THE FRAUD OR INEQUITABLE CONDUCT OF THE DEFENDANT.  MICHOUD V.
GIROD, SUPRA, 561; MEADER V. NORTON, 11 WALL.  442; BAILEY V. GLOVER,
21 WALL.  342, 348; KIRBY V. LAKE SHORE & MICHIGAN SOUTHERN R. CO., 120
U.S. 130; RUGAN V. SABIN, 53 F. 415, 420; STEVENS V. GRAND CENTRAL
MINING CO., 133 F. 28; JOHNSON V. WHITE, 39 F.2D 793. 

FN2  SCHRAM V. COTTON, 281 N.Y. 499; 24 N.E.2D 305; NETTLES V.
CHILDS, 281 N.Y. 636; 22 N.E.2D 477; 255 APP. DIV. 849; 7 N.Y.S.2D
1021; WRIGHT V. RUSSELL, 245 APP. DIV. 708; 281 N.Y.S. 994; 155 MISC.
877; 280 N.Y.S. 614; LEAVE TO APPEAL DENIED, 269 N.Y. 683; REISMAN V.
HALL, 257 APP. DIV. 892; 12 N.Y.S.2D 442, A FORTIORI SUITS AT LAW IN
THE FEDERAL COURTS TO RECOVER ASSESSMENTS UPON STOCKHOLDERS OF BANKS
ARE BARRED BY THE THREE-YEAR STATUTE.  PLATT V. WILMOT, 193 U.S. 602;
HOBBS V. NATIONAL BANK OF COMMERCE, 96 F. 396; SEATTLE NATIONAL BANK V.
PRATT, 103 F. 62; PLATT V. HUNGERFORD, 116 F. 771; WHITMAN V. ATKINSON,
130 F. 759; RAMSDEN V. GATELY, 142 F. 912. 

FN3  IN HANOVER FIRE INSURANCE CO. V. MORSE DRY DOCK & REPAIR CO.,
270 N.Y. 86; 200 N.E. 590, THE COURT OF APPEALS DECLARED (PP. 89, 90): 

"IN AN ACTION IN EQUITY THE TEN-YEAR LIMITATION PRESCRIBED BY SECTION
53 OF THE CIVIL PRACTICE ACT IS APPLICABLE UNLESS, IN A PARTICULAR
ACTION, A PARTY HAS A CHOICE OF TWO REMEDIES, ONE AT LAW, THE OTHER IN
EQUITY, BOTH COMPLETE AND ADEQUATE, AND HE SELECTS THE ACTION IN
EQUITY.  IN THAT EVENT THE PARTY WHOSE CAUSE OF ACTION WOULD BE BARRED
UNDER THE SIX-YEAR STATUTE, IF HE SHOULD ELECT TO PROCEED AT LAW, MAY
NOT ENLARGE THIS TIME BY ELECTING TO PROCEED IN EQUITY.  SUCH IS THE
RULE WHERE THE REMEDIES ARE CONCURRENT.  (RUNDLE V. ALLISON, 34 N.Y.
180; KEYS V. LEOPOLD, 241 N.Y. 189; 149 N.E. 828; CLARKE V. BOORMAN'S
EXECUTORS, 85 U.S. 493.) 

"THE EXCEPTION IS NOT APPLICABLE IN CASES OF CONCURRENT JURISDICTION,
HOWEVER, IF A PARTY'S REMEDY AT LAW IS INADEQUATE AND IMPERFECT AND HE
IS REQUIRED TO GO INTO EQUITY TO PROCURE COMPLETE AND ADEQUATE RELIEF. 
(RUNDLE V. ALLISON, SUPRA; MANN V. FAIRCHILD, 14 BARB.  548.) 

"IF RELIEF MAY BE HAD AT LAW IN AN ACTION FOR DAMAGES AND IN EQUITY
FOR RESCISSION OF A CONTRACT ON THE GROUND OF FRAUD WITH A RECONVEYANCE
OF LAND AND AN ACCOUNTING FOR PROFITS, THE ACTION IN EQUITY IS SUBJECT
TO THE TEN-YEAR LIMITATION THOUGH THE ACTION FOR DAMAGES IS BARRED
UNDER THE SIX-YEAR STATUTE.  (SCHENCK V. STATE LINE TELEPHONE CO., 238
N.Y. 308; 144 N.E. 592.)" 

IN POTTER V. WALKER, 276 N.Y. 15; 11 N.E.2D 335, THE COURT SAID (PP.
25, 26): 

"IN RESPECT TO THOSE CAUSES OF ACTION BY WHICH IS SOUGHT TO RECOVER
PROFITS RECEIVED BY DIRECTORS BY REASON OF WRONGFUL ACTS, AN ACTION AT
LAW WOULD NOT AFFORD ADEQUATE RELIEF.  TO THE EXTENT THAT AN ACCOUNTING
IS NECESSARY, THE RIGHT AND THE REMEDY MUST NECESSARILY BE OF AN
EQUITABLE NATURE.  THE APPELLATE DIVISION IS, THEREFORE, CLEARLY RIGHT
IN APPLYING THE TEN-YEAR STATUTE OF LIMITATIONS AS TO SUCH CAUSES OF
ACTION.  (CIV. PRAC.  ACT, SEC. 53; HANOVER FIRE INS. CO. V. MORSE DRY
DOCK & REPAIR CO., 270 N.Y. 86.)" 

WRIGHT V. RUSSELL, 269 N.Y. 683, 245 APP. DIV. 708; 281 N.Y.S. 994;
155 MISC. 877; 280 N.Y.S. 614, AND REISMAN V. HALL, 257 APP. DIV. 892;
12 N.Y.S.2D 442, CITED BY PETITIONER, DO NOT QUALIFY THIS DOCTRINE. 
THERE, ALTHOUGH REPRESENTATIVE ACTIONS WERE BROUGHT, THE ILLINOIS
CONSTITUTION UNDER WHICH THE LIABILITY AROSE HAD BEEN INTERPRETED AS
PERMITTING ACTIONS AT LAW, GOLDEN V. CERVENKA, 278 ILL. 409; 116 N.E.
273.  SINCE THE LEGAL ACTION WOULD HAVE BEEN BARRED WITHIN THREE YEARS,
THE COURT, AS IN MCDONALD V. THOMPSON, 184 U.S. 71, AND CONSISTENTLY
WITH POTTER V. WALKER, SUPRA, APPLIED THE SAME PERIOD TO THE EQUITABLE
ACTION FOUNDED UPON IT. 

MR. JUSTICE ROBERTS IS OF OPINION THAT THE JUDGMENT SHOULD BE
REVERSED FOR THE REASONS STATED IN THE DISSENTING OPINION OF CLARK, J.,
IN THE CIRCUIT COURT OF APPEALS. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















FISCHER V. PAULINE OIL CO., 309 U.S. 294 


NO. 239.  SUBMITTED DECEMBER 12, 1939.  - DECIDED FEBRUARY 26, 1940.  -
185 OKLA. 108 - 90 P.2D 411, REVERSED. 


1.  WHERE A STATE SUPREME COURT BASES ITS JUDGMENT EXCLUSIVELY UPON
ITS CONSTRUCTION OF A FEDERAL STATUTE, EXPRESSLY DECLINING TO CONSIDER
AN ALTERNATIVE LOCAL GROUND, THE JUDGMENT IS REVIEWABLE BY THIS COURT. 
P. 296. 

2.  SECTION 67(F) OF THE BANKRUPTCY ACT DOES NOT INTEND THAT AN
ADJUDICATION OF BANKRUPTCY SHALL OPERATE AUTOMATICALLY, AND
IRRESPECTIVE OF ANY ACTION ON THE PART OF THE TRUSTEE, TO DISCHARGE AN
EXECUTION LIEN OBTAINED WITHIN FOUR MONTHS PRIOR TO THE FILING OF THE
PETITION IN BANKRUPTCY.  P. 300. 

THE SECTION IS INTENDED FOR THE BENEFIT OF CREDITORS OF THE BANKRUPT
AND, THEREFORE, DOES NOT AVOID LIENS AS AGAINST ALL THE WORLD BUT ONLY
AS AGAINST THE TRUSTEE AND THOSE CLAIMING UNDER HIM, OR AS RESPECTS THE
BANKRUPT'S EXEMPT PROPERTY.  P. 301. 

3.  A TRUSTEE IN BANKRUPTCY APPEARED IN A STATE COURT AND
UNSUCCESSFULLY OBJECTED TO THE CONFIRMATION OF A SALE ON EXECUTION OF
PROPERTY THAT HAD BELONGED TO THE DEBTOR, UPON THE GROUND THAT THE
EXECUTION LIEN HAD BEEN DISCHARGED BY FORCE OF SEC. 67(F) OF THE
BANKRUPTCY ACT.  HELD THAT THE DECISION AGAINST HIM, FROM WHICH HE DID
NOT APPEAL, WAS BINDING, AS TO THAT QUESTION, AGAINST THE TRUSTEE AND
AGAINST ONE WHO LATER APPLIED FOR, AND WITH THE TRUSTEE'S ACQUIESCENCE
OBTAINED, CONFIRMATION BY THE BANKRUPTCY COURT OF A SALE OF THE SAME
PROPERTY WHICH HAD BEEN MADE TO HIM BY THE DEBTOR'S ASSIGNEE FOR
CREDITORS.  P. 303. 

FISCHER V. PAULINE OIL & GAS CO. 

CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. 

CERTIORARI, 308 U.S. 509, TO REVIEW THE REVERSAL OF A JUDGMENT
DIRECTED FOR THE PLAINTIFF IN AN ACTION TO QUIET TITLE TO AN OIL AND
GAS LEASE, TO RECOVER MATERIALS, MACHINERY, ETC., AND FOR DAMAGES. 
PLAINTIFF RELIED ON A SHERIFF'S SALE, CONFIRMED BY A STATE COURT;
DEFENDANT ON A SALE BY AN ASSIGNEE FOR CREDITORS, CONFIRMED BY A COURT
OF BANKRUPTCY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

AN APPEAL TAKEN IN THIS CASE WAS DISMISSED FOR WANT OF JURISDICTION. 
1925(43 STAT. 936, 937).  TREATING THE PAPERS WHEREON THE APPEAL WAS
ALLOWED AS A PETITION FOR WRIT OF CERTIORARI AS REQUIRED BY SEC.
237(C), JUDICIAL CODE, AS AMENDED (43 STAT. 936, 938), WE GRANTED
CERTIORARI, 308 U.S. 509, BECAUSE THE JUDGMENT OF THE SUPREME COURT OF
OKLAHOMA  FN1  IS BASED UPON A CONSTRUCTION OF SEC. 67(F) OF THE
BANKRUPTCY ACT OF 1898,  FN2E WHICH RAISES AN IMPORTANT QUESTION
CONCERNING THE OPERATION OF THE SECTION, NOT SETTLED BY DECISION OF
THIS COURT, ON WHICH STATE COURTS HAVE REACHED CONFLICTING
CONCLUSIONS. 

THE PETITIONER BROUGHT ACTION TO QUIET HIS TITLE TO AN OIL AND GAS
LEASE AND TO GAIN POSSESSION OF THE LEASED PREMISES TOGETHER WITH
MATERIALS, MACHINERY, TOOLS, AND APPLIANCES THEREON, AND FOR MESNE
PROFITS, AND DAMAGES.  HIS CLAIM WAS BASED ON A SHERIFF'S DEED
CONSUMMATING AN EXECUTION SALE UNDER A JUDGMENT ENTERED UPON AN AWARD
OF THE STATE INDUSTRIAL COMMISSION AGAINST GERALDINE OIL COMPANY.  THE
RESPONDENT'S TITLE WAS DERIVED THROUGH A CONVEYANCE BY AN ASSIGNEE FOR
THE BENEFIT OF CREDITORS OF THE SAME COMPANY, CONFIRMED BY A BANKRUPTCY
COURT.  THE RESPONDENT CROSS-PETITIONED FOR A JUDGMENT DECLARING THE
SHERIFF'S SALE TO PETITIONER VOID AND QUIETING RESPONDENT'S TITLE.  THE
TRIAL COURT DIRECTED A VERDICT FOR PETITIONER AND ENTERED JUDGMENT
THEREON, WHICH THE SUPREME COURT REVERSED. 

AUGUST 30, 1934, THE COMMISSION MADE AN AWARD TO ONE RAINBOLT AGAINST
SNYDER, AS EMPLOYER, AND GERALDINE OIL COMPANY, AS OWNER OF THE
PROPERTY.  FOR PAYMENT OF THE AWARD GERALDINE OIL COMPANY WAS
SECONDARILY LIABLE. 

OCTOBER 11, 1934, GERALDINE OIL COMPANY, BEING INSOLVENT, ASSIGNED
THE PROPERTY IN QUESTION TO A TRUSTEE FOR THE BENEFIT OF CREDITORS. 

DECEMBER 8, 1934, THE AWARD IN FAVOR OF RAINBOLT WAS FILED OF RECORD
IN A STATE DISTRICT COURT AND BECAME A JUDGMENT OF THAT COURT. 

JANUARY 21, 1935, THE ASSIGNEE FOR THE BENEFIT OF CREDITORS SOLD THE
PROPERTY TO THE RESPONDENT. 

SEPTEMBER 13, 1935, EXECUTION ISSUED ON THE RAINBOLT JUDGMENT, AND,
SEPTEMBER 17TH, THE SHERIFF LEVIED ON THE PROPERTY AS PROPERTY OF THE
GERALDINE OIL CO. THE EXECUTION WAS ISSUED ON THE THEORY THAT THE
ASSIGNMENT FOR THE BENEFIT OF CREDITORS WAS INVALID, AND THE PROPERTY,
THEREFORE, REMAINED THAT OF THE ASSIGNOR.  FN3 

OCTOBER 24, 1935, GERALDINE OIL COMPANY WAS ADJUDGED A VOLUNTARY
BANKRUPT IN THE DISTRICT COURT OF THE UNITED STATES FOR WESTERN
OKLAHOMA. 

NOVEMBER 12, 1935, THE SHERIFF SOLD THE PROPERTY, PURSUANT TO THE
EXECUTION, AND THE PETITIONER BOUGHT IT.  A NOTICE OF THE ADJUDICATION
IN BANKRUPTCY WAS READ AT THE SALE IN THE PRESENCE OF THE PETITIONER. 
ON THE SAME DAY THE SHERIFF MADE RETURN OF THE SALE TO THE COURT OUT OF
WHICH THE EXECUTION ISSUED. 

NOVEMBER 21, 1935, THE TRUSTEE IN BANKRUPTCY FILED IN THAT COURT HIS
OBJECTIONS TO THE CONFIRMATION OF THE SHERIFF'S SALE, ALLEGING, INTER
ALIA, THAT GERALDINE OIL COMPANY WAS INSOLVENT WHEN RAINBOLT OBTAINED
JUDGMENT AND HAD BEEN SO EVER SINCE; THAT THE COMPANY HAD BEEN
ADJUDICATED A BANKRUPT WITHIN FOUR MONTHS OF THE SECURING OF THE LIEN
UNDER THE EXECUTION, AND THAT, BY VIRTUE OF SEC. 67(F) OF THE
BANKRUPTCY ACT, THE LIEN WAS ABSOLUTELY VOID. 

MARCH 28, 1936, THE COURT ORDERED THAT THE SALE BE CONFIRMED AND
GRANTED THE TRUSTEE IN BANKRUPTCY AN EXCEPTION TO ITS ACTION.  THE
LATTER GAVE NOTICE OF APPEAL TO THE SUPREME COURT OF OKLAHOMA, BUT IT
DOES NOT APPEAR THAT HE PERFECTED AN APPEAL.  THE ORDER OF CONFIRMATION
WAS ENTERED OF RECORD APRIL 22, 1936. 

JUNE 4, 1936, THE RESPONDENT PETITIONED THE UNITED STATES DISTRICT
COURT FOR CONFIRMATION OF THE SALE OF THE PROPERTY MADE TO THE
RESPONDENT BY THE ASSIGNEE FOR THE BENEFIT OF CREDITORS ON JANUARY 21,
1935.  THE TRUSTEE IN BANKRUPTCY OBJECTED, BUT SUBSEQUENTLY WITHDREW
HIS OBJECTIONS AND THE REFEREE MADE AN ORDER CONFIRMING THE SALE.  THE
ASSIGNEE THEN PAID TO THE TRUSTEE THE CONSIDERATION RECEIVED BY HIM
FROM THE RESPONDENT AS PURCHASER AT THE ASSIGNEE'S SALE.  IT DOES NOT
APPEAR THAT THE PETITIONER HAD NOTICE OF THE APPLICATION OR WAS PRESENT
AT THE HEARING. 

JUNE 10, 1936, THE SHERIFF DELIVERED A DEED TO THE PETITIONER AS
PURCHASER AT THE EXECUTION SALE. 

BOTH PETITION AND ANSWER ALLEGE THAT THE RESPONDENT WAS IN POSSESSION
OF THE PROPERTY AT THE TIME SUIT WAS BROUGHT, AND WE MAY ASSUME THAT
THE PETITIONER NEVER WAS IN POSSESSION. 

THE SUPREME COURT HELD THAT ENTRY OF THE COMMISSION'S AWARD IN THE
STATE COURT MADE IT A JUDGMENT OF THAT COURT; THAT SUCH JUDGMENT DID
NOT CONSTITUTE A LIEN ON THE PROPERTY OF GERALDINE OIL COMPANY IN
QUESTION; AND THAT NO LIEN WAS ACQUIRED UNTIL THE LEVY OF EXECUTION ON
SEPTEMBER 17, 1935, ABOUT A MONTH PRIOR TO THE ADJUDICATION OF THE
COMPANY AS A BANKRUPT. 

THE RESPONDENT ASSERTED THAT, AS THE JUDGMENT IN FAVOR OF RAINBOLT
WAS NOT A LIEN WHEN GERALDINE OIL COMPANY ASSIGNED FOR THE BENEFIT OF
CREDITORS, OR WHEN THE ASSIGNEE SOLD THE PROPERTY TO THE RESPONDENT,
ITS TITLE MUST PREVAIL; AND, IN THE ALTERNATIVE, THAT THE SAME RESULT
MUST FOLLOW FROM THE FACT THAT SINCE THE LIEN OF THE LEVY WAS OBTAINED
LESS THAN FOUR MONTHS PRIOR TO THE FILING OF THE PETITION IN
BANKRUPTCY, IT WAS VOIDED BY SEC. 67(F). 

THE SUPREME COURT STATED THAT, IF EITHER OF THESE CONTENTIONS WERE
SOUND, THE PETITIONER COULD NOT PREVAIL.  IT EXPRESSLY DECLINED TO
CONSIDER THE EFFICACY OF THE SALE BY THE ASSIGNEE FOR THE BENEFIT OF
CREDITORS TO PASS TITLE TO THE RESPONDENT CLEAR OF THE LIEN OF THE
SUBSEQUENT LEVY, AND RESTED ITS DECISION UPON ITS VIEW OF THE EFFECT OF
SEC. 67(F).  SINCE THE JUDGMENT IS BASED EXCLUSIVELY UPON A FEDERAL
GROUND, WE HAVE JURISDICTION. 


"ALL LEVIES, JUDGMENTS, ATTACHMENTS, OR OTHER LIENS, OBTAINED THROUGH
LEGAL PROCEEDINGS AGAINST A PERSON WHO IS INSOLVENT, AT ANY TIME WITHIN
FOUR MONTHS PRIOR TO THE FILING OF A PETITION IN BANKRUPTCY AGAINST
HIM,  ...  SHALL BE DEEMED NULL AND VOID IN CASE HE IS ADJUDGED A
BANKRUPT, AND THE PROPERTY AFFECTED BY THE LEVY, JUDGMENT, ATTACHMENT,
OR OTHER LIEN,  ...  SHALL BE DEEMED WHOLLY DISCHARGED AND RELEASED
FROM THE SAME, AND SHALL PASS TO THE TRUSTEE AS A PART OF THE ESTATE OF
THE BANKRUPT, UNLESS THE COURT SHALL, ON DUE NOTICE, ORDER THAT THE
RIGHT UNDER SUCH LEVY, JUDGMENT, ATTACHMENT, OR OTHER LIEN SHALL BE
PRESERVED FOR THE BENEFIT OF THE ESTATE; AND THEREUPON THE SAME MAY
PASS TO AND SHALL BE PRESERVED BY THE TRUSTEE FOR THE BENEFIT OF THE
ESTATE AS AFORESAID.  AND THE COURT MAY ORDER SUCH CONVEYANCE AS SHALL
BE NECESSARY TO CARRY THE PURPOSES OF THIS SECTION INTO EFFECT:
PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL HAVE THE EFFECT TO
DESTROY OR IMPAIR THE TITLE OBTAINED BY SUCH LEVY, JUDGMENT,
ATTACHMENT, OR OTHER LIEN, OF A BONA FIDE PURCHASER FOR VALUE WHO SHALL
HAVE ACQUIRED THE SAME WITHOUT NOTICE OR REASONABLE CAUSE FOR
INQUIRY." 

THE COURT HELD THAT THE SECTION, PROPRIO VIGORE, NULLIFIED THE LIEN
OF THE LEVY SO THAT THE PROPERTY PASSED TO THE TRUSTEE DISCHARGED
THEREOF, AND CONCLUDED THAT, SINCE, AT THE TIME OF THE SHERIFF'S SALE,
THE PROPERTY WAS DISCHARGED OF THE LIEN, THE SALE, AND THE DEED
DELIVERED PURSUANT TO IT, WERE VOID; AND, AS A TRUSTEE'S SALE WOULD
PASS TITLE CLEAR OF THE LIEN, THE SAME RESULT WOULD FOLLOW FROM THE
BANKRUPTCY COURT'S VALIDATION, WITH THE TRUSTEE'S CONSENT, OF THE
ASSIGNEE'S SALE PREVIOUSLY MADE. 

THE QUESTION IS WHETHER THE STATE COURT WAS RIGHT IN HOLDING THAT, BY
FORCE OF SEC. 67(F), THE ADJUDICATION IN BANKRUPTCY AUTOMATICALLY
DISCHARGED THE LIEN OF THE LEVY, IRRESPECTIVE OF ANY ACTION ON THE PART
OF THE TRUSTEE.  EXPRESSIONS SUPPORTING THIS VIEW MAY BE FOUND IN CASES
DECIDED BY FEDERAL COURTS,  FN4  AND STATEMENTS SQUINTING IN THE SAME
DIRECTION HAVE BEEN MADE BY THIS COURT.  FN5  IN NONE OF THESE
INSTANCES, HOWEVER, WAS THE LITIGATION BETWEEN THIRD PARTIES, OR
BETWEEN THE LIENOR OR ONE CLAIMING TITLE UNDER AN EXECUTION SALE, AND
AN OPPONENT DERIVING TITLE FROM THE TRUSTEE IN BANKRUPTCY.  IN ALL OF
THEM A BANKRUPTCY RECEIVER OR TRUSTEE INSTITUTED ACTION IN THE
BANKRUPTCY COURT OR SOME OTHER COURT, OR BECAME A PARTY TO THE
PROCEEDING IN WHICH THE LIEN WAS ACQUIRED, TO AVOID THE LIEN, OR THE
BANKRUPT BROUGHT SUIT TO AVOID THE LIEN AS TO PROPERTY SET APART TO HIM
AS EXEMPT IN THE BANKRUPTCY CASE. 

SOME STATE COURTS HAVE DEFINITELY HELD THAT THE ADJUDICATION OPERATES
AUTOMATICALLY TO NULLIFY THE LIEN, WHICH MUST BE TREATED AS VOID
WHENEVER AND WHEREVER DRAWN INTO QUESTION, EITHER IN A DIRECT OR A
COLLATERAL PROCEEDING, AND WHETHER THE TRUSTEE IN BANKRUPTCY HAS TAKEN
THE PROPERTY INTO HIS POSSESSION OR ABANDONED IT.  FN6 

ON THE OTHER HAND, IT WAS SAID IN TAUBEL-SCOTT-KITZMILLER CO. V. FOX,
264 U.S. 426, 429:  "FOR THE STATUTE DOES NOT, AS A MATTER OF
SUBSTANTIVE LAW, DECLARE VOID EVERY LIEN OBTAINED THROUGH LEGAL
PROCEEDINGS WITHIN FOUR MONTHS OF THE FILING OF THE PETITION IN
BANKRUPTCY."  THE COURT THERE POINTED OUT THAT A NUMBER OF ISSUES OF
FACT MUST BE RESOLVED BEFORE IT CAN BE DETERMINED THAT THE LIEN IS
VOID.  AND, IN PIGG & SON V. UNITED STATES, 81 F.2D 334, 337, IT WAS
HELD THAT LIENS OBTAINED IN JUDICIAL PROCEEDINGS WITHIN FOUR MONTHS OF
THE FILING OF THE PETITION ARE NOT VOID, BUT VOIDABLE IN A PROPER SUIT,
AND THAT THE PROPERTY AFFECTED BY THE LIEN DOES NOT AUTOMATICALLY PASS
TO THE TRUSTEE, DISCHARGED OF THE LIEN. 

IN CONNELL V. WALKER, 291 U.S. 1, 3, THIS COURT INDICATED THAT THE
OPERATION OF SEC. 67(F) IS NOT AUTOMATIC, SINCE THE TRUSTEE IN
BANKRUPTCY HAS AN ELECTION EITHER TO AVOID THE LIEN, OR TO BE
SUBROGATED TO IT FOR THE BENEFIT OF THE BANKRUPT ESTATE. 

A NUMBER OF STATE COURTS HAVE HELD, AND WE THINK RIGHTLY, THAT THE
THEREFORE, DOES NOT AVOID LIENS AS AGAINST ALL THE WORLD BUT ONLY AS
AGAINST THE TRUSTEE AND THOSE CLAIMING UNDER HIM.  FN7  IT IS SETTLED,
HOWEVER, THAT NOT ONLY MAY THE TRUSTEE AVOID THE LIEN (TAUBEL-SCOTT
KITZMILLER CO. V. FOX, SUPRA; CONNELL V. WALKER, SUPRA), BUT THAT THE
BANKRUPT MAY ASSERT ITS INVALIDITY AS RESPECTS PROPERTY SET APART TO
HIM AS EXEMPT IN THE BANKRUPTCY PROCEEDING.  CHICAGO, B. & Q.R. CO. V.
HALL, 229 U.S. 511.  BUT THE LIEN IS NOT AVOIDED FOR THE BENEFIT OF THE
BANKRUPT SAVE AS TO HIS EXEMPT PROPERTY OR NULLIFIED AS RESPECTS OTHER
LIENORS OR THIRD PARTIES.  FN8 

ALTHOUGH SEC. 67(F) UNEQUIVOCALLY DECLARES THAT THE LIEN SHALL BE
DEEMED NULL AND VOID, AND THE PROPERTY AFFECTED BY IT SHALL BE DEEMED
WHOLLY DISCHARGED AND RELEASED, THE SECTION MAKES IT CLEAR THAT THIS IS
SO ONLY UNDER SPECIFIED CONDITIONS.  AT THE DATE OF CREATION OF THE
LIEN THE BANKRUPT MUST HAVE BEEN INSOLVENT; THE LIEN MUST HAVE BEEN
ACQUIRED WITHIN FOUR MONTHS OF THE FILING OF THE PETITION IN
BANKRUPTCY; AND THE PROPERTY AFFECTED MUST NOT HAVE BEEN SOLD TO A BONA
FIDE PURCHASER.  FURTHERMORE, THE LIEN IS PRESERVED IF THE TRUSTEE
ELECTS TO ENFORCE IT FOR THE BENEFIT OF THE ESTATE.  THESE CONDITIONS
CREATE ISSUES OF FACT WHICH, AS BETWEEN THE TRUSTEE, OR ONE CLAIMING
UNDER HIM, AND THE LIENOR, OR ONE CLAIMING BY VIRTUE OF THE LIEN, THE
PARTIES ARE ENTITLED TO HAVE DETERMINED JUDICIALLY.  THE COURSES OPEN
TO THE TRUSTEE UNDER THE BANKRUPTCY ACT OF 1898 WERE TO PROCEED TO HAVE
THE LIEN DECLARED VOID, BY PLENARY SUIT,  FN9  OR BY INTERVENTION IN
THE COURT WHERE IT WAS OBTAINED,  FN10  OR BY APPLYING, IN THE
BANKRUPTCY CAUSE, TO RESTRAIN ENFORCEMENT,  FN11  AS MIGHT BE
APPROPRIATE IN THE CIRCUMSTANCES. 

IN THE INSTANT CASE THE TRUSTEE INTERVENED IN THE STATE COURT AND
OPPOSED THE CONFIRMATION OF THE EXECUTION SALE ON THE GROUND THAT SEC.
67(F) HAD AVOIDED AND DISCHARGED THE LIEN OF THE LEVY.  THE ISSUE WAS
DECIDED AGAINST HIM AND HE DID NOT APPEAL.  LATER, WHEN THE RESPONDENT,
WHO HAD PURCHASED AT THE ASSIGNEE'S SALE, ASKED THE BANKRUPTCY COURT TO
CONFIRM THAT SALE, THE TRUSTEE WITHDREW HIS OBJECTIONS TO CONFIRMATION
AND ACCEPTED FROM THE ASSIGNEE THE CONSIDERATION RECEIVED FROM THE
RESPONDENT AS PURCHASER AT THE LATTER'S SALE.  THE TRUSTEE'S
ACQUIESCENCE IN THE CONFIRMATION OF THE SALE TO THE RESPONDENT WOULD
SEEM TO BE AT LEAST A TACIT ASSERTION THAT THE LEVY OF THE EXECUTION
DID NOT CONSTITUTE AN ENCUMBRANCE UPON RESPONDENT'S TITLE.  BUT WE
THINK, IF IN OTHER CIRCUMSTANCES THE TRUSTEE'S CONDUCT COULD AMOUNT TO
AN ELECTION TO AVOID THE LIEN, IT CAN HAVE NO SUCH EFFECT HERE, IN VIEW
OF THE PRIOR DECISION AGAINST HIM ON THAT ISSUE IN THE STATE COURT. 
WE ARE OF OPINION THAT THE TRUSTEE, HAVING RAISED THE ISSUE IN THE
STATE COURT, WAS BOUND BY THE FINAL DECISION OF THAT TRIBUNAL.  THE
ESTOPPEL OF THE JUDGMENT OF THE STATE COURT EXTENDED NOT ONLY TO HIM
BUT TO THE RESPONDENT AS HIS TRANSFEREE.  THIS CONCLUSION REQUIRES
REVERSAL OF THE JUDGMENT. 

WE DO NOT PASS UPON THE QUESTION WHETHER THE TITLE OF THE RESPONDENT,
DERIVED FROM THE SALE OF THE PROPERTY TO IT BY THE ASSIGNEE FOR THE
BENEFIT OF CREDITORS, IS, BY VIRTUE OF THAT SALE, SUPERIOR TO THE TITLE
OF THE PETITIONER.  THIS IS A QUESTION OF STATE LAW WHICH THE COURT
BELOW REMAINS FREE TO DECIDE.    THE JUDGMENT IS REVERSED AND THE CAUSE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

FN1  PAULINE OIL & GAS CO. V. FISCHER, 185 OKLA. 108; 90 P.2D 411. 

FN2  11 U.S.C. SEC. 107(F).  THE PROVISIONS OF SEC. 67(F) OF THE
BANKRUPTCY ACT OF 1898 ARE NOW CARRIED OVER INTO, MODIFIED AND
CLARIFIED BY CHAPTER VII, SEC. 67A, (1), (2), (3) AND (4) OF THE
CHANDLER ACT OF JUNE 22, 1938, 52 STAT. 840, 875.  THE QUESTION HERE
PRESENTED, HOWEVER, MAY ARISE UNDER THE LATER ACT. 

FN3  SEE WELLS V. GUARANTY STATE BANK, 56 OKLA, 688; 156 P. 896;
FIRST STATE BANK V. BRADSHOW, 174 OKLA. 268; 51 P.2D 514. 

FN4 IN RE TUNE, 115 F. 906; IN RE BEALS, 116 F. 530; IN RE FEDERAL
BISCUIT CO., 214 F. 221, 224. 

FN5  CLARKE V. LARREMORE, 188 U.S. 486, 488; CHICAGO, B. & Q.R. CO.
V. HALL, 229 U.S. 511, 514; LEHMAN STERN & CO. V. S. GUMBEL & CO., 236
U.S. 448, 454. 

FN6  MOHR & SONS V. MATTOX, 120 GA. 962; 48 S.E. 410; HOBBS V.
THOMPSON, 160 ALA. 360; 49 SO. 787; FINNEY V. KNAPP CO., 145 GA. 400;
89 S.E. 413; GREENBERGER V. SCHWARTZ, 261 PA. 265; 104 A. 573;
ARCHENHOLD CO. V. SCHAEFER, 205 S.W. 139(TEX.  CIV.  APP.); MORRIS
FERTILIZER CO. V. JACKSON, 27 GA. APP. 567; 110 S.E. 219; MACK V.
RELIANCE INS. CO., 52 R.I. 402; 161 A. 134; WHITTAKER V. BACON, 17
TENN. APP. 97; 65 S.W.2D 1083; BANK OF GARRISON V. MALLEY, 103 TEX.
562; 131 S.W. 1064.  COMPARE, KELLOGG-MACKAY-CAMERON CO. V. SCHMIDT
BAKING CO., 101 ILL. APP. 209; KEYSTONE BREWING CO. V. SCHERMER,
SCHERMER, 241 PA. 361; 88 A. 657; LAMB V. KELLEY, 97 W. VA. 409; 125
S.E. 102. 

FN7  FRAZEE V. NELSON, 179 MASS. 456; 61 N.E. 40; SWANEY V. HASARA,
164 MINN. 416; 205 N.W. 274; HUTCHINS V. CANTU, 66 S.W. 138(TEX.  CIV. 
APP.); EQUITABLE CREDIT CO. V. MILLER, 164 GA. 49; 137 S.E. 771;
NEUGENT GARMENT CO. V. U.S. FIDELITY & G. CO., 202 WIS. 93; 230 N.W.
69. 

FN8  SEE THE CASES IN NOTE 7, SUPRA, AND MCCARTY V. LIGHT, 155 APP.
DIV. 36; 139 N.Y.S. 853; TRAVIS V. BIXLER CO., 20 CAL. APP.2D 279; 66
P.2D 1263; DANBY MILLINERY CO. V. DOGAN, 47 TEX. CIV. APP. 323; 105
S.W. 337; SMITH V. FIRST NATIONAL BANK, 76 COLO. 34; 227 P. 826; TAYLOR
V. BUSER, 167 N.Y. SUPP. 887. 

FN9  SEE TAUBEL-SCOTT-KITZMILLER CO. V. FOX, SUPRA. 

FN10  11 U.S.C. SEC. 29(B).  SEE LEHMAN STERN & CO. V. S. GUMBEL &
CO., 236 U.S. 448; ISAACS V. HOBBS TIE & TIMBER CO., 282 U.S. 734. 

FN11  CLARKE V. LARREMORE, 188 U.S. 486.  THE CHANDLER ACT, SEC. 67A
(4), 52 STAT. 876, VESTS SUMMARY JURISDICTION IN THE BANKRUPTCY COURT
TO HEAR AND DETERMINE, AFTER NOTICE TO THE PARTIES IN INTEREST, ALL
QUESTIONS AFFECTING THE VALIDITY OF THE LIEN. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



GERMANTOWN TRUST CO. V. COMM'R, 309 U.S. 304 


NO. 462.  ARGUED FEBRUARY 8, 1940.  - DECIDED FEBRUARY 26, 1940.  - 106
F.2D 139, REVERSED. 


A TRUST COMPANY, WHICH HELD AND ADMINISTERED A FUND ENABLING ITS
PATRONS TO INVEST SMALL AMOUNTS IN SECURITIES, FILED WITH A COLLECTOR
FOR THE DISTRICT WHERE IT CONDUCTED ITS BUSINESS A FIDUCIARY RETURN
SETTING FORTH THE GROSS INCOME OF THE FUND, DEDUCTIONS, NET INCOME,
ETC. - ALL THE INFORMATION NECESSARY TO THE CALCULATION OF ANY TAX THAT
MIGHT BE DUE,  - AND ATTACHED A LIST OF THE BENEFICIARIES OF THE FUND
AND THEIR SHARES OF THE INCOME.  THE BENEFICIARIES INCLUDED THESE
SHARES IN THEIR INDIVIDUAL RETURNS.  THE COMMISSIONER MADE AN
ADDITIONAL RETURN FOR THE FUND AND ASSESSED A DEFICIENCY WHICH THE
BOARD OF TAX APPEALS SET ASIDE AS TOO LATE.  HELD: 

1.  THE VENUE FOR REVIEW WAS IN THE CIRCUIT IN WHICH THE FIDUCIARY
RETURN WAS FILED.  REV. ACT, 1926, SEC. 1002(A), AS AMENDED BY THE REV.
ACT, 1932, SEC. 519.  P. 308. 

2.  THE ASSESSMENT WAS BARRED UNDER THE REV. ACT, 1932, SEC. 276(A),
TWO YEARS AFTER THE FIDUCIARY RETURN WAS FILED.  P. 309. 

3.  SEC. 275(C), PROVIDING A FOUR YEAR LIMITATION IF A CORPORATION
MAKES "NO RETURN OF THE TAX IMPOSED," AND SEC. 276(A), PROVIDING THAT
IN CASE OF FAILURE TO FILE A RETURN THE TAX MAY BE ASSESSED "AT ANY
TIME,"  - ARE INAPPLICABLE.  P. 309. 

GERMANTOWN TRUST CO., TRUSTEE, V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 308 U.S. 544, TO REVIEW A JUDGMENT WHICH REVERSED A
DECISION OF THE BOARD OF TAX APPEALS HOLDING AN INCOME TAX ASSESSMENT
BARRED BY LIMITATIONS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE CONSTRUCTION AND APPLICATION OF PROVISIONS OF
THE REVENUE ACT OF 1926, AS AMENDED BY THAT OF 1934, AND OF THE REVENUE
ACT OF 1932, RELATING TO THE VENUE OF PROCEEDINGS TO REVIEW A DECISION
OF THE BOARD OF TAX APPEALS AND SETTING LIMITATIONS UPON THE ASSESSMENT
OF INCOME TAX. 

THE PETITIONER IS A TRUST COMPANY, DOING A GENERAL BUSINESS AS SUCH,
INCLUDING ADMINISTERING TRUST ESTATES AND ACTING AS AGENT FOR THE
CUSTODY, HANDLING, AND MANAGEMENT OF ITS CLIENTS' INVESTMENTS.  IN 1930
IT CREATED, BY AN APPROPRIATE INSTRUMENT, A FUND TO AFFORD THOSE FOR
WHOM IT ACTED THE ADVANTAGE OF INVESTING SMALL AMOUNTS IN SECURITIES AT
MINIMUM EXPENSE AND WITH OPPORTUNITY OF READY LIQUIDATION.  THE FUND
HAS SINCE BEEN MANAGED ACCORDING TO THE TERMS OF THE AGREEMENT.  IN THE
COURSE OF ADMINISTRATION THE PETITIONER HAS PAID TO THE PARTICIPANTS
THEIR RESPECTIVE SHARES OF INCOME FROM THE INVESTED PRINCIPAL, AND HAS
FILED FIDUCIARY RETURNS OF INCOME ON TREASURY FORM 1041, INTENDED FOR
USE BY TRUSTEES. 

MARCH 15, 1933, THE PETITIONER, AS TRUSTEE, FILED SUCH A RETURN, FOR
THE CALENDAR YEAR 1932, WITH THE COLLECTOR OF INTERNAL REVENUE FOR THE
FIRST DISTRICT OF PENNSYLVANIA, AT PHILADELPHIA.  THE RETURN ACCURATELY
SET FORTH THE GROSS INCOME, THE DEDUCTIONS, AND THE NET INCOME,  - IN
SHORT ALL INFORMATION NECESSARY TO THE CALCULATION OF ANY TAX WHICH
MIGHT BE DUE,  - AND ATTACHED A LIST OF THE BENEFICIARIES OF THE FUND,
AND THEIR SHARES OF THE INCOME.  NO CORPORATION INCOME TAX RETURN WAS
FILED ON TREASURY FORM 1120.  THE PARTICIPANTS IN THE FUND, WHO WERE
REQUIRED TO MAKE INDIVIDUAL RETURNS FOR THE YEAR 1932, INCLUDED IN
THEIR RESPECTIVE RETURNS, FILED ON OR BEFORE MARCH 15, 1933, THEIR
SHARES OF INCOME. 

SEPTEMBER 17, 1936, PURSUANT TO THE RECOMMENDATION OF A TREASURY
AGENT THAT THE FUND BE TAXED AS A CORPORATION,  FN1  THE RESPONDENT
PREPARED FROM THE FORM 1041 RETURN, A SUBSTITUTE CORPORATION RETURN ON
FORM 1120, COVERING THE YEAR 1932, AND, ON FEBRUARY 27, 1937, GAVE
NOTICE OF A CONSEQUENT DEFICIENCY OF TAX. 

THE PETITIONER CARRIED THE MATTER TO THE BOARD OF TAX APPEALS FOR
REDETERMINATION, ASSERTING THAT IT WAS TAXABLE AS A TRUST AND NOT AS AN
ASSOCIATION AND THAT ASSESSMENT AND COLLECTION OF THE ASSERTED
DEFICIENCY WAS BARRED BY THE EXPIRATION OF TWO YEARS FROM THE DATE ITS
RETURN WAS FILED.  THE BOARD HELD THE ASSESSMENT BARRED. 

THE RESPONDENT PETITIONED THE UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT TO REVIEW THE BOARD'S DECISION.  THAT COURT HELD THAT THE
VENUE PROVISION OF SEC. 1002(A) OF THE REVENUE ACT OF 1926, AS AMENDED
BY SEC. 519 OF THE REVENUE ACT OF 1934,  FN2  EMPOWERED IT TO ENTERTAIN
THE PETITION, AND THAT THE ASSESSMENT OF A DEFICIENCY WAS NOT BARRED BY
SECS. 275 AND 276 OF THE REVENUE ACT OF 1932,  FN3  THE APPLICABLE

THE PETITIONER SOUGHT CERTIORARI ON THE GROUND THAT THE CIRCUIT COURT
OF APPEALS' DECISION THAT THE FIDUCIARY RETURN IT HAD FILED WAS A
RETURN WHICH GOVERNED VENUE UNDER SEC. 1002, AS AMENDED, BUT NO RETURN
WITHIN THE MEANING OF SEC. 275(C), CONFLICTS WITH A DECISION OF THE
CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.  FN5  BECAUSE OF THE
CONFLICT WE GRANTED CERTIORARI. 

PETITIONER AND RESPONDENT AGREE THAT THE COURT BELOW WAS RIGHT IN
HOLDING THE RETURN IN QUESTION WAS SUCH A RETURN AS FIXED THE VENUE OF
THE PETITION FOR REVIEW IN THE THIRD CIRCUIT, WHERE THE RETURN WAS
FILED.  WE CONCUR IN THIS VIEW. 

THE PETITIONER CONTENDS THAT THE FIDUCIARY RETURN FILED ON FORM 1041
WAS A RETURN WITHIN THE MEANING OF SEC. 275(A), WHICH LIMITS THE TIME
FOR ASSESSMENT TO TWO YEARS AFTER THE FILING OF THE RETURN.  THE
RESPONDENT INSISTS THAT THE RETURN WAS "NO RETURN OF THE TAX" WITHIN
THE MEANING OF SEC. 275(C), AND, THEREFORE, THE FOUR-YEAR LIMITATION
SPECIFIED IN THAT SECTION APPLIES. 

AS THE NOTICE OF DEFICIENCY WAS GIVEN MORE THAN TWO YEARS AFTER THE
FILING OF THE FIDUCIARY RETURN, AND WITHIN FOUR YEARS OF THE FILING OF
THE LAST RETURN BY ANY PARTICIPANT IN THE FUND, DECISION TURNS UPON
WHICH SUBSECTION GOVERNS. 

WE HOLD THAT THE RETURN WAS A RETURN WITHIN THE MEANING OF SEC.
275(A) AND THAT THE PETITIONER CANNOT BE HELD TO HAVE MADE NO RETURN SO
AS TO BRING THE CASE WITHIN SEC. 275(C). 

FIRST.  WE ARE OF OPINION THAT IF THE RETURN FILED BY THE PETITIONER
WAS SUCH AS TO CREATE VENUE OF THE PROCEEDING FOR REVIEW IN THE COURT
BELOW, IT WAS ALSO A RETURN UNDER THE TERMS OF SEC. 275(A), SO THAT THE
TWO-YEAR PERIOD OF LIMITATIONS IMPOSED BY THAT SECTION IS APPLICABLE. 

THE RETURN WAS A FIDUCIARY RETURN.  IT IS ADMITTED THAT THE
PETITIONER IN RESPECT OF THE FUND WAS A FIDUCIARY AND WAS BOUND TO FILE
SUCH A RETURN.  FN6  IT CONTAINED ALL OF THE DATA FROM WHICH A TAX
COULD BE COMPUTED AND ASSESSED ALTHOUGH IT DID NOT PURPORT TO STATE ANY
AMOUNT DUE AS TAX.  SECTION 1002(A), AS AMENDED, SUPRA, CONFERS VENUE
UPON THE CIRCUIT COURT FOR THE CIRCUIT IN WHICH WAS MADE "THE RETURN OF
THE TAX IN RESPECT OF WHICH THE LIABILITY ARISES."  SECTION 275(A)
PROVIDES THAT THE AMOUNT OF TAX MUST BE ASSESSED WITHIN TWO YEARS AFTER
"THE RETURN WAS FILED."  SECTION 275(C) FIXES A PERIOD OF FOUR YEARS
FOR ASSESSMENT "IF A CORPORATION MAKES NO RETURN OF THE TAX IMPOSED BY
THIS TITLE," BUT EACH SHAREHOLDER RETURNS HIS DISTRIBUTIVE SHARE OF THE
NET INCOME. 

WE THINK THE LANGUAGE OF THE SECTIONS IS SUCH THAT IT CANNOT BE SAID
THE FIDUCIARY RETURN FILED BY THE PETITIONER WAS A RETURN OF THE TAX IN
RESPECT OF WHICH THE LIABILITY ARISES BUT WAS NO RETURN OF THE TAX
IMPOSED BY THE STATUTE. 

THE RESPONDENT URGES THAT THE TWO SECTIONS HAVE SEPARATE AIMS; THAT
THE VENUE PROVISION WAS INSERTED FOR THE CONVENIENCE OF TAXPAYERS, SO
THAT THEY SHOULD NOT BE COMPELLED TO LITIGATE IN COURTS FAR FROM THEIR
DOMICILE, WHEREAS THE LIMITATION SECTIONS HAVE NOTHING TO DO WITH THE
DESIGNATION OF A FORUM.  CONCEDING THAT THIS IS TRUE, IT REMAINS THAT,
IF THE RETURN IN QUESTION COMPLIES WITH THE ONE DESCRIPTION, IT EQUALLY
COMPLIES WITH THE OTHER.  WE FIND NO ADEQUATE REASON FOR ATTRIBUTING A
DIFFERENT MEANING TO THE TWO PHRASES. 

SECOND.  SECTION 275(C) IS INAPPLICABLE.  SECTIONS 275 AND 276 SET UP
A COMPLETE SCHEME OF LIMITATIONS ON ASSESSMENT OF INCOME TAXES. 
THE RETURN.  SECTION 276(A) PROVIDES THAT THERE SHALL BE NO PERIOD OF
LIMITATIONS IF A FALSE RETURN, OR NO RETURN, BE FILED.  IF THE STATUTE
WENT NO FURTHER, AND IF THE RESPONDENT'S POSITION IS CORRECT THAT, IN
THIS CASE, THE TAXPAYER WAS A CORPORATION AND FILED NO RETURN AS SUCH,
THEN THERE WOULD BE NO PERIOD OF LIMITATIONS WHATEVER.  THIS WAS THE
SITUATION UNDER THE REVENUE ACT OF 1924.  FN7 

THE LEGISLATIVE HISTORY DEMONSTRATES THAT SEC. 275(C) WAS ADOPTED TO
SET A PERIOD OF LIMITATIONS WHERE NO RETURN IS FILED BY THE ASSOCIATION
BUT RETURNS ARE FILED ONLY BY THE MEMBERS.  IN OTHER WORDS, SUBSECTION
(C) WAS ADOPTED TO LIMIT, RATHER THAN TO ENLARGE, THE TIME FOR
ASSESSMENT IN SUCH A CASE.  FN8 

THE RESPONDENT'S CONTENTION IS THAT WHERE A FIDUCIARY, IN GOOD FAITH,
MAKES WHAT IT DEEMS THE APPROPRIATE RETURN, WHICH DISCLOSES ALL OF THE
DATA FROM WHICH THE TAX, TREATED AS ONE IMPOSED UPON AN ASSOCIATION
(CLASSIFIED AS A CORPORATION UNDER THE STATUTE), CAN BE COMPUTED, SUCH
A RETURN IS TO BE DEEMED NO RETURN.  WE THINK THIS VIEW INADMISSIBLE. 

IT CANNOT BE SAID THAT THE PETITIONER, WHETHER TREATED AS A
CORPORATION OR NOT, MADE NO RETURN OF THE TAX IMPOSED BY THE STATUTE. 
ITS RETURN MAY HAVE BEEN INCOMPLETE IN THAT IT FAILED TO COMPUTE A TAX,
BUT THIS DEFECT FALLS SHORT OF RENDERING IT NO RETURN WHATEVER.  FN9 

THE JUDGMENT IS REVERSED. 

FN1  SEC. 1111(A)(2) OF THE REVENUE ACT OF 1932, 47 STAT. 169, 289:
"THE TERM 'CORPORATION' INCLUDES ASSOCIATIONS  ..."  SEE MORRISSEY V.
COMMISSIONER, 296 U.S. 344. 

FN2  "SEC.  1002.  (A)  EXCEPT AS PROVIDED IN SUBDIVISION
(B)(RELATING TO VENUE BY STIPULATION), SUCH DECISION MAY BE REVIEWED BY
THE CIRCUIT COURT OF APPEALS FOR THE CIRCUIT IN WHICH IS LOCATED THE
COLLECTOR'S OFFICE TO WHICH WAS MADE THE RETURN OF THE TAX IN RESPECT
OF WHICH THE LIABILITY ARISES OR, IF NO RETURN WAS MADE, THEN BY THE
COURT OF APPEALS OF THE DISTRICT OF COLUMBIA."  44 STAT. 9, 110; 48
STAT. 680, 760; 26 U.S.C. 641(B). 

FN3  "SEC.  275.  PERIOD OF LIMITATION UPON ASSESSMENT AND
COLLECTION. 

"EXCEPT AS PROVIDED IN SECTION 276 - 

"(A)  GENERAL RULE.  - THE AMOUNT OF INCOME TAXES IMPOSED BY THIS
TITLE SHALL BE ASSESSED WITHIN TWO YEARS AFTER THE RETURN WAS FILED,
AND NO PROCEEDING IN COURT WITHOUT ASSESSMENT FOR THE COLLECTION OF
SUCH TAXES SHALL BE BEGUN AFTER THE EXPIRATION OF SUCH PERIOD. 

     . .         .         .         . 

"(C)  CORPORATION AND SHAREHOLDER.  - IF A CORPORATION MAKES NO
RETURN OF THE TAX IMPOSED BY THIS TITLE, BUT EACH OF THE SHAREHOLDERS
INCLUDES IN HIS RETURN HIS DISTRIBUTIVE SHARE OF THE NET INCOME OF THE
CORPORATION, THEN THE TAX OF THE CORPORATION SHALL BE ASSESSED WITHIN
FOUR YEARS AFTER THE LAST DATE ON WHICH ANY SUCH SHAREHOLDER'S RETURN
WAS FILED." 

"SEC. 276.  SAME - EXCEPTIONS. 

"(A)  FALSE RETURN OR NO RETURN.  - IN THE CASE OF A FALSE OR
FRAUDULENT RETURN WITH INTENT TO EVADE TAX OR OF A FAILURE TO FILE A
RETURN THE TAX MAY BE ASSESSED, OR A PROCEEDING IN COURT FOR THE
COLLECTION OF SUCH TAX MAY BE BEGUN WITHOUT ASSESSMENT, AT ANY TIME." 
REVENUE ACT OF 1932, 47 STAT. 169, 237. 

FN4  COMMISSIONER V. GERMANTOWN TRUST CO., 106 F.2D 139. 

FN5  COMMISSIONER V. ROOSEVELT & SON INV. FUND, 89 F.2D 706. 

FN6  REVENUE ACT OF 1932, 47 STAT. 169, 214. 

FN7  REVENUE ACT OF 1924, SECS. 277(A)(1) AND 278(A); 43 STAT. 253,
299. 

FN8  THE PROVISION WAS FIRST INSERTED AS SEC. 277(A)(5) OF THE
REVENUE ACT OF 1926, 44 STAT. 9, 58.  THE COMMITTEE REPORTS ON THE
CONGRESS, SUSTAIN, RATHER THAN NEGATIVE, THE VIEW THAT THE SECTION WAS
INTENDED TO IMPOSE A PERIOD OF LIMITATION WHERE ONE HAD NOT THERETOFORE
EXISTED.  SEE H. REP. NO. 1, 69TH CONG., 1ST SESS., P. 11; S. REP. NO.
52, 69TH CONG., 1ST SESS., P. 28.  COMPARE HEARINGS, COMMITTEE ON WAYS
AND MEANS OF THE HOUSE, 73RD CONG., 1ST SESS., P. 146. 

FN9  ZELLERBACH PAPER CO. V. HELVERING, 293 U.S. 172, 180;
COMMISSIONER V. STETSON & ELLISON CO., 43 F.2D 553; UNITED STATES V.
TILLINGHAST, 69 F.2D 718; MABEL ELEVATOR CO., 2 B.T.A. 517; ABRAHAM
WERBELOVSKY, 8 B.T.A. 442, 446; ESTATE OF F. M. STEARNS, 16 B.T.A. 889;
J. R. BREWER, 17 B.T.A. 704. 
..END :










MAYO V. CANNING CO., 309 U.S. 310 


NO. 270.  ARGUED JANUARY 12, 1940.  - DECIDED FEBRUARY 26, 1940.  - 28
F.SUPP.  44, REVERSED. 


CANNERS OF CITRUS FRUITS OPERATING IN FLORIDA, SOME OF THEM DOMICILED
IN OTHER STATES, SUED TO ENJOIN AN OFFICIAL FROM ENFORCING AN ORDER
MADE UNDER COLOR OF A FLORIDA STATUTE AND PURPORTING TO FIX THE PRICE
TO BE PAID THE GROWER FOR GRAPEFRUIT, THE BILL ALLEGING
UNCONSTITUTIONALITY OF THE STATUTE, INVALIDITY OF THE ORDER FOR FAILURE
TO COMPLY WITH THE STATUTORY REQUIREMENTS, AND THREAT OF IRREPARABLE
INJURY.  HELD: 

1.  THAT, UPON APPLICATION UNDER JUD.  CODE, SEC. 266, HEARD UPON THE
BILL, AFFIDAVITS AND OTHER EVIDENCE, THE QUESTION BEFORE THE DISTRICT
COURT WAS NOT WHETHER THE ACT WAS CONSTITUTIONAL OR UNCONSTITUTIONAL;
NOR WHETHER THERE HAD BEEN COMPLIANCE WITH ITS REQUIREMENTS, IF VALID;
BUT WAS WHETHER THE SHOWING MADE RAISED SERIOUS QUESTIONS, UNDER THE
FEDERAL CONSTITUTION AND THE STATE LAW, AND DISCLOSED THAT ENFORCEMENT
OF THE ACT, PENDING FINAL HEARING, WOULD INFLICT IRREPARABLE DAMAGES
UPON THE COMPLAINANTS.  P. 316. 

THE COURT SHOULD HAVE CONFINED ITSELF TO THOSE ISSUES.  EXPRESSIONS
OF OPINION ON THE ULTIMATE MERITS WERE PREMATURE. 

2.  IT IS OF THE HIGHEST IMPORTANCE TO A PROPER REVIEW IN THE
GRANTING OR REFUSING OF A PRELIMINARY INJUNCTION THAT THERE BE EXPLICIT
FINDINGS OF FACT, IN COMPLIANCE WITH SEC. 52(A) OF THE RULES OF CIVIL
PROCEDURE.  P. 316. 

3.  THE QUESTION WHETHER THE BILL FAILED TO STATE FACTS SUFFICIENT TO
RAISE A SUBSTANTIAL QUESTION AS TO THE CONSTITUTIONAL VALIDITY OF THE
STATUTE COULD HAVE BEEN RAISED FOR PROMPT DECISION BY MOTION TO
DISMISS.  P. 317. 

4.  THE BILL RAISES QUESTIONS OF THE VALIDITY OF THE STATUTE, AND AS
TO WHETHER IT HAS EVER BEEN PUT IN OPERATION IN ACCORDANCE WITH ITS
TERMS, THAT PRECLUDE A JUDGMENT OF DISMISSAL.  P. 318. 

5.  THE MERE FACT THAT THE ACT FIXES PRICES IS, IN ITSELF,
INSUFFICIENT TO INVALIDATE IT; AND ALLEGATION OF THAT FACT DOES NOT
RAISE SUBSTANTIAL FEDERAL QUESTIONS.  P. 318. 

6.  NONRESIDENT PLAINTIFFS MAY BE ENTITLED TO MAINTAIN THE SUIT
BEFORE ONE DISTRICT JUDGE, UPON THE GROUND THAT THE CONDITIONS OF THE
STATUTE WERE NOT OFFICIALLY COMPLIED WITH, EVEN THOUGH IT BE FOUND THAT
THERE IS NO SUBSTANCE IN THE CONSTITUTIONAL QUESTIONS PRESENTED.  P.
318. 

MAYO, COMMISSIONER OF AGRICULTURE OF FLORIDA, ET AL. V. LAKELAND
HIGHLANDS CANNING CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

APPEAL FROM AN INTERLOCUTORY DECREE OF INJUNCTION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE APPELLEES, CORPORATIONS OF FLORIDA AND OTHER STATES, AND
INDIVIDUALS, ENGAGED IN THE CANNING OF CITRUS FRUITS IN THAT STATE,
FILED THEIR BILL IN THE DISTRICT COURT FOR SOUTHERN FLORIDA AGAINST
NATHAN MAYO, AS COMMISSIONER OF AGRICULTURE OF FLORIDA, PRAYING
INJUNCTIONS, TEMPORARY AND FINAL, TO RESTRAIN HIM FROM CANCELLING THEIR
LICENSES AS CITRUS FRUIT DEALERS, FROM ENFORCING AGAINST THEM A
REGULATION MADE PURSUANT TO A STATE STATUTE, AND FROM INTERFERING WITH
THE CONDUCT OF THEIR BUSINESS BY REASON OF THEIR FAILURE TO COMPLY WITH
THE STATUTE. 

ON PRESENTATION OF THE BILL AND MOTION FOR TEMPORARY RELIEF, THE
COURT ISSUED A RESTRAINING ORDER AND CONVENED A COURT OF THREE JUDGES. 
THE FLORIDA CITRUS COMMISSION WAS PERMITTED TO INTERVENE AS A
DEFENDANT.  AFTER HEARING ON AFFIDAVITS, FILED BY APPELLEES AND
APPELLANT MAYO, AND, ON EVIDENCE OFFERED BY THE APPELLEES, THE COURT
GRANTED A TEMPORARY INJUNCTION PENDING FINAL HEARING.  FN1  THE
COMMISSIONER AND THE INTERVENOR HAVE APPEALED. 

THE BILL ALLEGES THE IMPORTANCE OF THE GRAPEFRUIT CANNING INDUSTRY IN
THE STATE, AND ASSERTS THAT THE APPELLEES, IN THE CONDUCT OF THEIR
BUSINESS, PACKED OVER SIXTY PER CENT. OF THE TOTAL GRAPEFRUIT AND
GRAPEFRUIT JUICE CANNED IN THE STATE IN SEASONS PRIOR TO THAT OF 1938
1939.  IT RECITES THE ADOPTION BY THE LEGISLATURE OF THE GROWERS' COST
GUARANTEE ACT (CHAP. 16862 OF THE ACTS OF 1935) WHICH, AFTER DECLARING
THAT THE PRODUCTION AND DISTRIBUTION OF CITRUS FRUIT IS A PARAMOUNT
INDUSTRY OF THE STATE, UPON WHICH THE PROSPERITY OF THE STATE LARGELY
DEPENDS, AND ASSIGNING REASONS FOR THE PROTECTION OF THE INDUSTRY AND
THE MAINTENANCE OF PRICES COMMENSURATE WITH THE COST OF PRODUCTION OF
CITRUS FRUIT, AUTHORIZES THE COMMISSIONER OF AGRICULTURE, IN HIS
DISCRETION, WITH THE CONSENT AND ADVICE OF THE GOVERNOR, TO DECLARE THE
EXISTENCE OF AN EMERGENCY IN THE INDUSTRY; AND PROVIDES THAT, IF HE
DOES SO, THEN,  - UPON PETITION OF OWNERS OR CONTROLLERS OF FIFTY PER
CENT. OR MORE OF THE PRODUCING ACREAGE OF CITRUS FRUIT, AND, UPON
PROCUREMENT BY THE FLORIDA CITRUS COMMISSION FROM PRODUCERS, SHIPPERS,
OR HANDLERS, NOT SUBJECT TO THE PROVISIONS OF THE ACT, OF BINDING
AGREEMENTS TO CONFORM THERETO AND ABIDE BY ITS TERMS,  - THE COMMISSION
SHALL DETERMINE AND RECORD ANNUALLY THE AVERAGE REASONABLE COST, PER
STANDARD PACKED BOX, OF PRODUCING CITRUS FRUIT.  THE STATUTE PROVIDES
THAT, THEREUPON, EVERY CONTRACT WITH A GROWER FOR THE PURCHASE OF FRUIT
IS TO BE HELD TO REQUIRE THE PURCHASER TO PAY THE GROWER A PRICE PER
BOX EQUAL TO SUCH ASCERTAINED AND RECORDED COST; AND CONTINUES:  "ANY
CONTRACT, PLAN, SCHEME OR DEVICE WHEREBY IT SHALL BE ATTEMPTED TO
PRECLUDE THE GROWER FROM RECOVERING SUCH COST OF PRODUCTION SHALL TO
THAT EXTENT BE HELD TO BE UNLAWFUL AND AGAINST THE PUBLIC POLICY OF
THIS STATE, BUT IN ALL OTHER RESPECTS AND PARTICULARS CONTRACTS OF SALE
...  SHALL BE VALID AND BINDING AND THE TERMS THEREOF SHALL MEASURE
THE RIGHTS OF THE RESPECTIVE PARTIES."  BY ITS TERMS THE ACT IS TO
APPLY TO ANY ONE OR MORE OF THE VARIETIES OF CITRUS FRUIT. 

THE COMPLAINT FURTHER REFERS TO THE BOND AND LICENSE ACT (CHAP.
16860, LAWS OF FLORIDA, 1935, AS AMENDED BY CHAP. 17777, ACTS OF 1937),
WHICH REQUIRES EVERY DEALER (WHICH TERM INCLUDES PROCESSORS OF CITRUS
FRUIT) TO TAKE A LICENSE AND PROVIDES THAT IF THE COMMISSIONER
DETERMINES THAT ANY DEALER HAS VIOLATED THE PROVISIONS OF ANY
APPLICABLE ACT HE MAY SUSPEND OR REVOKE THE LICENSE OF THE OFFENDER. 
OPERATION AS A DEALER WITHOUT LICENSE IS MADE A MISDEMEANOR. 

THE BILL ALLEGES THAT THE PACKING SEASON FOR CANNING CITRUS PRODUCTS
IN FLORIDA BEGINS ABOUT NOVEMBER 1ST OF EACH YEAR AND CONTINUES UNTIL
JUNE OR JULY OF THE FOLLOWING YEAR; THAT PREPARATIONS FOR CANNING
INCLUDE THE ORDERING OF CANS, LABELS, CONTRACTING FOR PURCHASE OF
FRUIT, SECURING LABOR, PLANNING OF FACTORY OPERATIONS, AND OBTAINING
ORDERS FOR THE PRODUCT. 

IT IS ALLEGED THAT, UNDER THE GROWERS' COST GUARANTEE ACT, THE
APPELLANT MAYO, AS COMMISSIONER OF AGRICULTURE, WITH THE CONSENT AND
ADVICE OF THE GOVERNOR, DECLARED AN EMERGENCY IN THE CITRUS INDUSTRY ON
JANUARY 13, 1939, AND THAT THE CITRUS COMMISSION PASSED A RESOLUTION
JANUARY 16, 1939, RECITING THAT MORE THAN FIFTY PER CENT. OF THE OWNERS
OR CONTROLLERS OF PRODUCING ACREAGE OF GRAPEFRUIT IN THE STATE HAVE
REQUESTED THE COMMISSION TO DETERMINE THE COST OF PRODUCTION OF
GRAPEFRUIT, FIXING THE COST PER STANDARD PACKED BOX AT THIRTY-TWO CENTS
FOR THE SEASON 1938-1939, AND DECREEING THAT EVERY CONTRACT WITH A
GROWER SHALL BE HELD TO REQUIRE THAT THE PURCHASER SHALL, IN ANY EVENT,
PAY THE GROWER THE AMOUNT SO FIXED AS THE COST OF PRODUCTION. 

THE BILL STATES THAT THE EXPECTED PACK OF GRAPEFRUIT FOR THE SEASON
1938-39 WAS LARGE, BUT THAT, DUE TO THE REGULATION, THE OUTPUT OF THE
CANNED PRODUCT HAS BEEN LESS, BY TWO MILLION CASES, THAN THAT OF THE
PREVIOUS SEASON; THAT, SINCE JANUARY 19, 1939, EACH OF APPELLEES HAS
BEEN OFFERED QUANTITIES OF GRAPEFRUIT BY FLORIDA GROWERS, AT PRICES
RANGING FROM TWELVE CENTS PER BOX FOR FRUIT TO BE PROCESSED INTO JUICE,
TO TWENTY-FIVE CENTS PER BOX FOR FRUIT TO BE CANNED INTO SECTIONS OR
HEARTS, AND THAT, BUT FOR THE REGULATION IN QUESTION, EACH COULD, AND
WOULD, HAVE PURCHASED SUCH FRUIT, CANNED THE SAME, AND SOLD THE CANNED
PRODUCT AT A LARGE PROFIT; THAT, AS A RESULT OF THE REGULATION, MUCH OF
THE FRUIT REMAINS UNSOLD AND IS SPOILING. 

THE BILL FURTHER ASSERTS THAT MANY GROWERS OWN THEIR OWN CANNING
PLANTS AND MAY, THEREFORE, PROCESS THEIR FRUIT WITHOUT BEING SUBJECT TO
THE BURDEN OF THE COST GUARANTEE LAW; AND THAT MANY GROWERS, WITH LIKE
IMMUNITY, PROCESS THEIR FRUIT THROUGH COOPERATIVE ORGANIZATIONS TO
WHICH THE COMMISSIONER DOES NOT APPLY THE COST PRICE PROVISIONS OF THE
LAW AND REGULATIONS. 

ACCORDING TO THE BILL A LARGE PROPORTION OF THE FLORIDA CANNED FRUIT
IS SOLD IN INTERSTATE AND FOREIGN COMMERCE AND MUCH OF IT COMPETES WITH
THAT PRODUCED IN OTHER STATES WHICH BRINGS LOWER PRICES, AND,
CONSEQUENTLY, THE APPELLEES CANNOT PAY THIRTY-TWO CENTS PER BOX AND
SELL IN COMPETITION WITH FRUIT ELSEWHERE PROCESSED. 

IT IS FURTHER AVERRED THAT ONE OF THE APPELLEES HAD MADE BINDING
CONTRACTS OF PURCHASE PRIOR TO ISSUE OF THE REGULATION, THE OBLIGATION
OF WHICH HAS BEEN IMPAIRED THEREBY. 

AFTER ALLEGING THAT EACH APPELLEE HAS A LARGE INVESTMENT; THAT THE
PAYMENT OF THIRTY-TWO CENTS PER BOX WOULD RENDER IT IMPOSSIBLE FOR THEM
TO SELL THEIR PROCESSED GRAPEFRUIT EXCEPT AT A LOSS; THAT THE
ENFORCEMENT OF THE REGULATION WILL CAUSE THEM LARGE LOSSES AND
IRREPARABLE DAMAGE; THAT IF THEY DO NOT COMPLY WITH THE REGULATION THE
COMMISSIONER WILL REVOKE THEIR LICENSES, AND THAT, IF HE SHOULD DO SO,
THEY WILL BE COMPELLED TO SUSPEND BUSINESS OR SUBJECT THEMSELVES TO
RISK OF FINE AND IMPRISONMENT UNDER THE BOND AND LICENSE ACT, THE BILL
CHARGES THAT THE GROWERS' COST GUARANTEE LAW, AS ADMINISTERED AND AS
APPLIED TO THEM, IS UNCONSTITUTIONAL AND VOID AS ILLEGALLY ATTEMPTING
TO REGULATE INTERSTATE COMMERCE, AS VIOLATING THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, BECAUSE DISCRIMINATING BETWEEN
COOPERATIVES AND THE COMPLAINANTS, AS TAKING THEIR PROPERTY WITHOUT DUE
PROCESS OF LAW, AND AS IMPAIRING THE OBLIGATION OF CONTRACTS.  THE BILL
ALSO CHALLENGES THE REGULATION ON THE GROUND THAT THE COMMISSION FAILED
TO ASCERTAIN, IN ACCORDANCE WITH THE LAW, THAT FIFTY PER CENT. OF THE
OWNERS OR CONTROLLERS OF ACREAGE HAD REQUESTED REGULATION AND ALSO
FAILED TO OBSERVE THE CONDITION PRECEDENT TO MAKING ANY ORDER, NAMELY,
THAT ALL PERSONS NOT SUBJECT TO THE PROVISIONS OF THE ACT SHOULD
EXECUTE BINDING AGREEMENTS TO BE GOVERNED THEREBY. 

AT THE TIME OF HEARING AND DECREE FOR PRELIMINARY INJUNCTION NO
ANSWER OR MOTION TO DISMISS HAD BEEN FILED.  THE COURT IN ITS OPINION
STATED THAT THE DEFENDANTS HAD APPEARED AND, THOUGH THEY HAD NOT FILED
ANSWERS, ARGUED THE CASE "AND REQUESTED THE COURT TO PASS ON ALL
QUESTIONS PRESENTED, AND ESPECIALLY ON THE CONSTITUTIONALITY OF THE ACT
INVOLVED." 

THE COURT IN ITS OPINION, AFTER A RUNNING COMMENTARY, CONCLUDED:  "WE
FIND THE ACT UNCONSTITUTIONAL."  THE COURT THEN WENT ON TO SAY THAT
THERE WAS NO PROOF BEFORE IT THAT THE COMMISSION HAD PROCURED
AGREEMENTS, AS REQUIRED BY THE ACT, FROM SHIPPERS OR HANDLERS NOT
SUBJECT TO THE PROVISIONS OF THE ACT, AND THAT, WHILE THIS FACT MIGHT
NOT RENDER THE ACT VIOLATIVE OF THE CONSTITUTION, IT REQUIRED AN
INJUNCTION TO RESTRAIN THE COMMISSION FROM ENFORCING THE PRICES FIXED. 
AN INJUNCTION WAS ISSUED TO REMAIN IN FORCE UNTIL FINAL HEARING. 

WE THINK THE COURT COMMITTED SERIOUS ERROR IN THUS DEALING WITH THE
CASE UPON MOTION FOR TEMPORARY INJUNCTION.  THE QUESTION BEFORE IT WAS
NOT WHETHER THE ACT WAS CONSTITUTIONAL OR UNCONSTITUTIONAL; WAS NOT
WHETHER THE COMMISSION HAD COMPLIED WITH THE REQUIREMENTS OF THE ACT,
IF VALID, BUT WAS WHETHER THE SHOWING MADE RAISED SERIOUS QUESTIONS,
UNDER THE FEDERAL CONSTITUTION AND THE STATE LAW, AND DISCLOSED THAT
ENFORCEMENT OF THE ACT, PENDING FINAL HEARING, WOULD INFLICT
IRREPARABLE DAMAGES UPON THE COMPLAINANTS. 

THE OBSERVATIONS MADE IN THE COURSE OF THE OPINION ARE NOT, IN ANY
PROPER SENSE, FINDINGS OF FACT UPON THESE VITAL ISSUES.  STATEMENTS OF
FACT ARE MINGLED WITH ARGUMENTS AND INFERENCES FOR WHICH WE FIND NO
SUFFICIENT BASIS EITHER IN THE AFFIDAVITS OR THE ORAL TESTIMONY. 

IT IS OF THE HIGHEST IMPORTANCE TO A PROPER REVIEW OF THE ACTION OF A
COURT IN GRANTING OR REFUSING A PRELIMINARY INJUNCTION THAT THERE
SHOULD BE FAIR COMPLIANCE WITH RULE 52(A) OF THE RULES OF CIVIL
PROCEDURE.  FN2 

THE APPELLANTS COMPLAIN THAT THE COURT'S OPINION DECIDES A QUESTION
WHICH WAS NOT OPEN ON THE HEARING AND PREJUDICES THEIR POSITION ON
FINAL HEARING; THAT THE DECISION GOES BEYOND THE QUESTION OF A PRIMA
FACIE SHOWING MADE FOR THE PURPOSE OF OBTAINING A TEMPORARY INJUNCTION
AND PROCEEDS UPON ASSUMPTIONS OF FACT NOT SUSTAINED BY THE EVIDENCE
WHICH APPELLANTS COULD HAVE NEGATIVED BY PROOF ADDUCED AT FINAL
HEARING.  THE APPELLEES INSIST THAT IN HOLDING THE ACT UNCONSTITUTIONAL
THE COURT DID SO ONLY FOR THE PURPOSES OF TEMPORARY RELIEF AND THAT ITS
CONCLUSION IN THIS RESPECT CAN HAVE NO EFFECT UPON THE ULTIMATE
DECISION OF THE CAUSE UPON THE MERITS.  NEVERTHELESS, THE PARTIES HAVE
ESSAYED, IN VIEW OF THE ACTION OF THE COURT BELOW, TO ARGUE IN THIS
COURT THE QUESTION OF THE CONSTITUTIONALITY OF THE STATUTE, WHEREAS, IF
THE COURT BELOW HAD CONFINED ITSELF TO THE ISSUE PRESENTED, NAMELY,
WHETHER THE PROOFS WARRANTED THE ENTRY OF AN INJUNCTION PENDING A
DECISION OF THE CONSTITUTIONAL AND OTHER QUESTIONS PRESENTED, THE
PARTIES COULD EITHER HAVE OBTAINED A TRIAL ON THE MERITS LONG BEFORE AN
APPEAL FROM THE INTERLOCUTORY ORDER COULD BE HEARD IN THIS CASE OR, IF
AN APPEAL FROM THE INTERLOCUTORY ORDER HAD BEEN PERFECTED HERE, WOULD
HAVE BEEN RESTRICTED IN ARGUMENT TO THE QUESTION WHETHER, UPON PROPER
FINDINGS AND CONCLUSIONS, THE COURT HAD ABUSED ITS DISCRETION IN
GRANTING OR REFUSING AN INJUNCTION.  FN3 

MOREOVER, IF APPELLANTS CONCEIVED THEMSELVES AGGRIEVED BY THE ACTION
OF THE COURT UPON MOTION FOR PRELIMINARY INJUNCTION, THEY WERE ENTITLED
TO HAVE EXPLICIT FINDINGS OF FACT UPON WHICH THE CONCLUSION OF THE
COURT WAS BASED.  SUCH FINDINGS ARE OBVIOUSLY NECESSARY TO THE
INTELLIGENT AND ORDERLY PRESENTATION AND PROPER DISPOSITION OF AN
APPEAL. 

THE APPELLANTS INSIST THAT THE BILL FAILS TO STATE FACTS SUFFICIENT
TO RAISE A SUBSTANTIAL QUESTION AS TO THE CONSTITUTIONAL VALIDITY OF
THE STATUTE.  THEY COULD HAVE MADE THIS POINT IN THE DISTRICT COURT BY
A MOTION TO DISMISS AND OBTAINED A PROMPT DECISION ON IT.  THEY OMITTED
SO TO DO. 

THE RECORD DOES NOT WARRANT A JUDGMENT OF DISMISSAL.  THE COMPLAINT
RAISES CONSTITUTIONAL QUESTIONS OF DUE PROCESS, EQUAL PROTECTION, AND
VIOLATION OF THE OBLIGATION OF CONTRACT.  IT FURTHER RAISES QUESTIONS
AS TO WHETHER THE ACT HAS EVER BEEN PUT INTO OPERATION IN ACCORDANCE
WITH ITS TERMS. 

THE APPELLEES' PRINCIPAL ATTACK UPON THE STATUTE, BASED UPON THE
CONSTITUTION, CENTERS ON ITS REGULATION OF PRICES.  THE MERE FACT THAT
THE ACT FIXES PRICES IS, IN ITSELF, INSUFFICIENT TO INVALIDATE IT; FN4
AND ALLEGATION OF THAT FACT DOES NOT RAISE SUBSTANTIAL FEDERAL
QUESTIONS.  THE PRESUMPTION THAT AN ACT FIXING PRICES IS CONSTITUTIONAL
WOULD REQUIRE THE DENIAL OF A TEMPORARY INJUNCTION, EXCEPT IN
EXTRAORDINARY SITUATIONS.  FINDINGS TO SUPPORT A CONCLUSION AGAINST
CONSTITUTIONALITY WOULD NEED TO BE UNEQUIVOCAL. 

SOME OF THE COMPLAINANTS ARE CORPORATIONS OF STATES OTHER THAN
FLORIDA, AND ALLEGATIONS OF THE BILL, WHICH WERE NOT DENIED,
SUFFICIENTLY ALLEGE AN AMOUNT IN CONTROVERSY IN EXCESS OF $3,000 WITH
RESPECT TO EACH COMPLAINANT.  IN RESPECT OF THE COMMISSION'S ALLEGED
FAILURE TO COMPLY WITH THE STATUTE, IT MAY BE THAT THESE COMPLAINANTS
ARE ENTITLED TO MAINTAIN THE SUIT ALTHOUGH NOT ENTITLED TO A HEARING
BEFORE A THREE JUDGE COURT, EVEN THOUGH IT BE FOUND THAT THERE IS NO
SUBSTANCE IN THE CONSTITUTIONAL QUESTIONS PRESENTED.    THE LEGISLATION
REQUIRING THE CONVENING OF A COURT OF THREE JUDGES IN CASES SUCH AS
THIS WAS INTENDED TO INSURE THAT THE ENFORCEMENT OF A CHALLENGED
STATUTE SHOULD NOT BE SUSPENDED BY INJUNCTION EXCEPT UPON A CLEAR AND
PERSUASIVE SHOWING OF UNCONSTITUTIONALITY AND IRREPARABLE INJURY. 
CONGRESS INTENDED THAT, IN THIS CLASS OF SUITS, PROMPT HEARING AND
DECISION SHALL BE AFFORDED THE PARTIES SO THAT THE STATES SHALL BE PUT
TO THE LEAST POSSIBLE INCONVENIENCE IN THE ADMINISTRATION OF THEIR
LAWS.    BOTH THE COURT BELOW AND THE APPELLANTS ARE IN PART
RESPONSIBLE FOR THE INEXCUSABLE DELAY IN THE DISPOSITION OF THIS CASE. 
WE ARE ADVISED THAT SINCE THE ENTRY OF THE INJUNCTION THE DEFENDANTS
HAVE ANSWERED THE BILL, AND THERE APPEARS TO BE NO REASON WHY THE CASE
CANNOT PROMPTLY BE FINALLY HEARD AND DECIDED UPON THE MERITS.  WE
REVERSE THE DECREE AND REMAND THE CAUSE TO THE COURT BELOW WITH
INSTRUCTIONS THAT, IF THE MOTION FOR INTERLOCUTORY INJUNCTION IS
PRESSED, THE PARTIES, IF THEY DESIRE IT, MAY BE AFFORDED A FURTHER
HEARING, AND ANY ACTION TAKEN BY THE COURT SHALL BE UPON FINDINGS OF
FACT AND CONCLUSIONS FOUNDED UPON THE EVIDENCE, IN ACCORDANCE WITH RULE
52(A) OF THE RULES OF CIVIL PROCEDURE.  REVERSED. 

FN1  28 F.SUPP.  44. 

FN2  COMPARE HOME TELEPHONE & TELEG.  CO. V. KUYKENDALL, 265 U.S.
206; RAILROAD COMMISSION V. MAXCY, 281 U.S. 82; PUBLIC SERVICE COMM'N
V. WISCONSIN TELEPHONE CO., 289 U.S. 67; INTERSTATE CIRCUIT V. UNITED
STATES, 304 U.S. 55; BORDEN'S FARM PRODUCTS CO. V. BALDWIN, 293 U.S.
194; POLK COMPANY V. GLOVER, 305 U.S. 5. 

FN3  UNITED STATES V. CORRICK, 298 U.S. 435, 437. 

FN4  NEBBIA V. NEW YORK, 291 U.S. 502; UNITED STATES V. ROCK ROYAL CO
OPERATIVE, 307 U.S. 533, 569.  COMPARE MILK CONTROL BOARD V. EISENBERG
FARM PRODUCTS, 306 U.S. 346. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

OPINION OF MR. JUSTICE FRANKFURTER. 

A DIFFERENT DISPOSITION OF THE CASE SEEMS TO ME TO BE REQUIRED. 

CITRUS FRUIT OCCUPIES A CENTRAL AND INDEED PERVASIVE ROLE IN THE
ECONOMY OF FLORIDA.  THAT STATE'S WELL-BEING IS DEPENDENT ON THE
CULTIVATION OF THE CITRUS CROP, ITS PACKING, TRANSPORTATION, FINANCING
AND EXPORTATION.  THE APPROPRIATENESS OF REGULATIONS TO BE ADOPTED FOR
THE CITRUS FRUIT INDUSTRY IS THUS PECULIARLY A MATTER FOR THE
LEGISLATURE OF FLORIDA IN WHOSE KEEPING IS THE SHAPING OF THAT STATE'S
SOCIAL AND ECONOMIC POLICY.  IN NEBBIA V. NEW YORK, 291 U.S. 502, THIS
COURT RECOGNIZED PRICE CONTROL AS ONE OF THE MEANS OPEN TO A STATE FOR
THE PROTECTION OF ITS WELFARE.  UNITED STATES V. ROCK ROYAL CO-OP., 307
U.S. 533.  CF. WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379.  THE
ALLOWABLE EXERCISE OF LEGISLATIVE DISCRETION TO ATTAIN PRICE STABILITY
FINDS OBVIOUS OCCASION IN THE CASE OF A COMMODITY AS BASIC TO A STATE'S
ECONOMY AS CITRUS FRUIT IS TO THAT OF FLORIDA.  CERTAINLY NEITHER IN
THE BILL NOR IN THE COURT'S OPINION IS A REASON VOUCHSAFED TO TAKE THE
PRESENT SUIT OUT OF THE SCOPE OF THE NEBBIA DOCTRINE.  THE WISDOM OF
SUCH A POLICY - ITS EFFICACY TO ACHIEVE THE DESIRED ENDS - IS OF COURSE
NOT OUR CONCERN. 

THE PRICE LEVEL HERE CHALLENGED WAS NOT HASTILY OR CRUDELY FIXED.  IT
WAS THE RESULT OF AN APPROVED MODERN METHOD FOR DEALING WITH THE
COMPLEXITIES OF SUCH A PROBLEM.  THE PRICE WAS NOT FIXED DIRECTLY BY
STATUTE.  IT WAS ASCERTAINED UNDER APPROPRIATE SAFEGUARDS BY A BODY
ESTABLISHED TO CARRY INTO APT RESULT THE LEGISLATIVE POLICY FOR
ASSURING "THE GROWER RETURNS AT LEAST EQUAL TO THE COST OF PRODUCTION. 
...  "  LAWS OF FLORIDA, 1935, C. 16862.  THE FLORIDA CITRUS COMMISSION
ON JANUARY 16, 1939, FIXED MINIMUM PRICES FOR GRAPEFRUIT, THEREBY
ESTABLISHING WHAT IS COLLOQUIALLY KNOWN AS A "FLOOR" FOR THE MARKET, SO
AS TO PREVENT THE DESTRUCTIVE PLAY OF BLIND ECONOMIC FORCES. 

THIS ACTION WAS THEREUPON COMMENCED IN THE DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA, NOT BY ANY OF THE GROWERS BUT BY SOME
CANNERS, APPELLEES HERE.  ON MARCH 23, 1939, THEY SOUGHT TO ENJOIN THE
COMMISSIONER OF AGRICULTURE AND OTHER STATE OFFICIALS FROM ENFORCING
THE FIXED MINIMUM PRICES.  THEY CLAIMED THAT THESE DEPRIVED THEM OF THE
OPPORTUNITY TO BUY IN A CHEAPER MARKET - THE CHEAPNESS OF COMPETITION
INDIFFERENT TO ANY BUT IMMEDIATE CONSEQUENCES.  THEY CLAIMED
IRREPARABLE DAMAGE AND ASKED FOR BOTH A TEMPORARY AND A PERMANENT
INJUNCTION.  ON APRIL 28, 1939, IN THE CIRCUMSTANCES SET FORTH IN THIS
COURT'S OPINION, THE DISTRICT COURT DECLARED THE STATUTE
UNCONSTITUTIONAL AND GRANTED AN INTERLOCUTORY INJUNCTION.  THERE WERE
NO FINDINGS - AND THERE COULD HAVE BEEN NONE ON THIS RECORD - TAKING
THE STATUTE OUT OF THE DOCTRINE ANNOUNCED IN THE NEBBIA CASE.  FN1
CERTAINLY A CONSUMER HAS NO CONSTITUTIONAL RIGHT TO BUY AS CHEAPLY AS
AN UNREGULATED INDUSTRY WOULD, UNDER ADVERSE CIRCUMSTANCES, BE
COMPELLED TO SELL. 

PURSUANT TO THE DELAYS INEVITABLE IN A LITIGATION LIKE THE PRESENT,
AN ORDER ALLOWING APPEAL WAS NOT GRANTED UNTIL JULY 3, AND THE CASE WAS
FILED HERE ON AUGUST 7, WHERE IN DUE COURSE IT WAS REACHED FOR ARGUMENT
ON JANUARY 12, 1940.  AS A RESULT, THE INJUNCTION EFFECTIVELY SUSPENDED
THE OPERATION OF THE FLORIDA LAW DURING THE WHOLE MARKETING SEASON,
ALTHOUGH THIS COURT NOW FINDS THAT THE INJUNCTION SHOULD NEVER HAVE
BEEN GRANTED. 

I DO NOT BELIEVE WE SHOULD NOW LET THIS BILL HANG OVER NEXT YEAR'S
CROP.  WE OUGHT NOT TO ENCOURAGE THE USE OF THE JUDICIAL PROCESS FOR
SUCH UNJUSTIFIABLE ATTEMPTS TO SET ASIDE A STATE LAW BY ALLOWING THEM
TO BE SUCCESSFUL IN RESULT EVEN THOUGH LEGALLY ERRONEOUS.  WE OUGHT TO
APPLY WHAT WAS CHARACTERIZED IN MASSACHUSETTS STATE GRANGE V. BENTON,
272 U.S. 525, 527, AS "THE IMPORTANT RULE, WHICH WE DESIRE TO
EMPHASIZE, THAT NO INJUNCTION OUGHT TO ISSUE AGAINST OFFICERS OF A
STATE CLOTHED WITH AUTHORITY TO ENFORCE THE LAW IN QUESTION, UNLESS IN
A CASE REASONABLY FREE FROM DOUBT AND WHEN NECESSARY TO PREVENT GREAT
AND IRREPARABLE INJURY."  EVEN IF THE PRESENT BILL IS TAKEN AT FACE
VALUE, IT DOES NOT MAKE OUT "A CASE REASONABLY FREE FROM DOUBT."  THE
WITHDRAWAL OF THE INJUNCTION FROM INDUSTRIAL CONTROVERSIES MADE BY THE
NORRIS-LAGUARDIA ACT WAS IN NO SMALL PART DUE TO THE BELIEF BY CONGRESS
THAT EXPERIENCE HAD SHOWN THAT THE USE OF A LEGAL REMEDY DEVISED FOR A
SIMPLE SITUATION MIGHT IN A TOTALLY DIFFERENT ENVIRONMENT BECOME A
PERVERSION OF THAT REMEDY.  CONGRESS HAS ALSO GIVEN INDICATION IN SEC.
266 OF THE JUDICIAL CODE (28 U.S.C. SEC. 380) OF ITS CONCERN OVER THE
MISUSE OF THE INJUNCTION, FASHIONED FOR SETTLING AN ORDINARY CLASH OF
PRIVATE INTERESTS, TO RESTRAIN THE MACHINERY OF A STATE IN CARRYING OUT
SOME VITAL STATE POLICY. 

THE SUPERVISORY POWER OF THIS COURT OVER THE DISTRICT COURTS BECOMES
ESPECIALLY APPROPRIATE IN EQUITY SUITS.  WE OUGHT TO FEEL FREE TO APPLY
THE TRADITIONAL POWERS OF THE CHANCELLOR ON APPEAL TO ACT AS THOUGH THE
SUIT WERE BEFORE HIM DE NOVO.  COMPARE UNITED STATES V. RIO GRANDE
IRRIGATION CO., 184 U.S. 416, 423.  THE PRESENT CASE DEMANDS THAT WE
ENFORCE THE "IMPORTANT RULE" OF MASSACHUSETTS STATE GRANGE V. BENTON,
SUPRA. 

INASMUCH AS THE FLORIDA STATUTE IS OBVIOUSLY CONSTITUTIONAL, THE BILL
DOES NOT RAISE A SUBSTANTIAL FEDERAL QUESTION AND THE DISTRICT COURT
WAS WITHOUT JURISDICTION TO ENTERTAIN IT ON BEHALF OF THE APPELLEES WHO
ARE CITIZENS OF FLORIDA.  AS TO THEM, THE CASE SHOULD BE REMANDED TO
THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE BILL. 

SOME OF THE APPELLEES, HOWEVER, ARE CITIZENS OF OTHER STATES, AND
AMONG THE ALLEGATIONS OF THE BILL, IN ADDITION TO THE AMOUNT OF DAMAGE
REQUISITE TO GIVE DIVERSITY JURISDICTION, ARE THOSE OF FAILURE BY THE
STATE OFFICIALS TO COMPLY WITH SOME OF THE CONDITIONS WHICH APPELLEES
ASSERT TO BE INDISPENSABLE FOR THE ISSUANCE OF A VALID PRICE-FIXING
ORDER UNDER THE STATUTE.  WHATEVER MAY BE THE MERITS OF THESE
CONTENTIONS, IN ANY EVENT THEY DO NOT TOUCH THE CONSTITUTIONALITY OF
THE STATUTE OR THE ORDER, AND SO SEC. 266 OF THE JUDICIAL CODE CANNOT
BE INVOKED FOR THEIR ADJUDICATION.  AS TO THESE APPELLEES, THE JUDGMENT
BELOW SHOULD BE VACATED AND THE CASE REMANDED TO THE DISTRICT COURT FOR
ANY PROCEEDINGS THAT MAY BE APPROPRIATE BEFORE A SINGLE JUDGE.  BUT
COMPARE GILCHRIST V. INTERBOROUGH CO., 279 U.S. 159. 

FN1  APPELLEES ALSO ATTACKED THE FLORIDA STATUTE BECAUSE OF ITS
PROVISIONS EXEMPTING CO-OPERATIVE AND GROWER-OWNED CANNERIES.  THIS
ATTACK, HOWEVER, MUST FAIL UNDER OUR DECISION IN UNITED STATES V. ROCK
ROYAL CO-OP., 307 U.S. 533.  APPELLEES' CONTENTION THAT THE STATUTE IS
AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE IS LIKEWISE WITHOUT
SUBSTANCE.  SLIGH V. KIRKWOOD, 237 U.S. 52; MILK BOARD V. EISENBERG
CO., 306 U.S. 346.  NOR IS THERE SUBSTANTIAL BASIS FOR APPELLEES'
CONTENTION THAT THE ORDER UNCONSTITUTIONALLY IMPAIRS THE OBLIGATION OF
ANY CONTRACTS THEY MAY HAVE PREVIOUSLY MADE FOR THE PURCHASE OF
GRAPEFRUIT AT A PRICE LOWER THAN THAT FIXED UNDER THE STATUTE.  SEE,
E.G., UNION DRY GOODS CO. V. GEORGIA PUBLIC SERVICE CORP., 248 U.S.
372.  CF. KNOX V. LEE, 12 WALL.  457, 550-51. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS JOIN IN THESE VIEWS. 
..END :













COBBLEDICK V. UNITED STATES, 309 U.S. 323 


NO. 571.  ARGUED JANUARY 30, 1940.  - DECIDED FEBRUARY 26, 1940.  - 107
F.2D 975, AFFIRMED. 


AN ORDER OF THE DISTRICT COURT DENYING A MOTION TO QUASH A SUBPOENA
DUCES TECUM REQUIRING ONE TO APPEAR WITH PAPERS AND TESTIFY BEFORE A
GRAND JURY IS NOT A "FINAL DECISION" WITHIN THE MEANING OF JUD.  CODE
SEC. 128(A).  PP. 324, 330. 

COBBLEDICK ET AL. V. UNITED STATES.* 

*TOGETHER WITH NO. 572, BRAWNER ET AL. V. UNITED STATES, AND NO. 573,
PALMUTH ET AL. V. UNITED STATES, ALSO ON WRITS OF CERTIORARI TO THE
CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 308 U.S. 547, TO REVIEW JUDGMENTS DISMISSING, FOR WANT OF
JURISDICTION, APPEALS FROM ORDERS DENYING MOTIONS TO QUASH SUBPOENAS
DUCES TECUM. 

OPINION OF THE COURT BY MR. JUSTICE FRANKFURTER, ANNOUNCED BY THE
CHIEF JUSTICE. 

THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DENIED
MOTIONS TO QUASH SUBPOENAS DUCES TECUM ADDRESSED TO THE PETITIONERS AND
DIRECTING THEM TO APPEAR AND PRODUCE DOCUMENTS BEFORE A UNITED STATES
GRAND JURY AT THE JULY, 1939, TERM OF THAT COURT.  FROM THE DENIAL OF
THESE MOTIONS PETITIONERS SOUGHT REVIEW BY WAY OF APPEAL TO THE CIRCUIT
COURT OF APPEALS FOR THE NINTH CIRCUIT, 107 F.2D 975.  THAT COURT FOUND
ITSELF TO BE WITHOUT JURISDICTION AND DISMISSED THE APPEALS.  WE
BROUGHT THE CASES HERE, 308 U.S. 547, BECAUSE OF CONFLICT BETWEEN THE
DECISION BELOW AND THAT OF THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT, IN RE CUDAHY PACKING CO., 104 F.2D 658.  THE MATTER IN
CONTROVERSY - AND THE SOLE QUESTION RAISED IN ALL THREE CASES - VITALLY
CONCERNS THE EFFECTIVE ADMINISTRATION OF THE FEDERAL CRIMINAL LAW.  THE
QUESTION IS WHETHER AN ORDER DENYING A MOTION TO QUASH A SUBPOENA DUCES
TECUM DIRECTING A WITNESS TO APPEAR BEFORE A GRAND JURY IS INCLUDED
WITHIN THOSE "FINAL DECISIONS" IN THE DISTRICT COURT WHICH ALONE THE
CIRCUIT COURTS OF APPEAL ARE AUTHORIZED TO REVIEW BY SEC. 128(A) OF THE
JUDICIAL CODE (28 U.S.C. SEC. 225).  FN1 

FINALITY AS A CONDITION OF REVIEW IS AN HISTORIC CHARACTERISTIC OF
FEDERAL APPELLATE PROCEDURE.  IT WAS WRITTEN INTO THE FIRST JUDICIARY
ACT  FN2  AND HAS BEEN DEPARTED FROM ONLY WHEN OBSERVANCE OF IT WOULD
PRACTICALLY DEFEAT THE RIGHT TO ANY REVIEW AT ALL.  FN3  SINCE THE
RIGHT TO A JUDGMENT FROM MORE THAN ONE COURT IS A MATTER OF GRACE AND
NOT A NECESSARY INGREDIENT OF JUSTICE, CONGRESS FROM THE VERY BEGINNING
HAS, BY FORBIDDING PIECEMEAL DISPOSITION ON APPEAL OF WHAT FOR
PRACTICAL PURPOSES IS A SINGLE CONTROVERSY, SET ITSELF AGAINST
ENFEEBLING JUDICIAL ADMINISTRATION.  THEREBY IS AVOIDED THE OBSTRUCTION
TO JUST CLAIMS THAT WOULD COME FROM PERMITTING THE HARASSMENT AND COST
OF A SUCCESSION OF SEPARATE APPEALS FROM THE VARIOUS RULINGS TO WHICH A
LITIGATION MAY GIVE RISE, FROM ITS INITIATION TO ENTRY OF JUDGMENT.  TO
BE EFFECTIVE, JUDICIAL ADMINISTRATION MUST NOT BE LEADEN-FOOTED.  ITS
MOMENTUM WOULD BE ARRESTED BY PERMITTING SEPARATE REVIEWS OF THE
COMPONENT ELEMENTS IN A UNIFIED CAUSE.  THESE CONSIDERATIONS OF POLICY
ARE ESPECIALLY COMPELLING IN THE ADMINISTRATION OF CRIMINAL JUSTICE. 
NOT UNTIL 1889 WAS THERE REVIEW AS OF RIGHT IN CRIMINAL CASES.  FN4  AN
ACCUSED IS ENTITLED TO SCRUPULOUS OBSERVANCE OF CONSTITUTIONAL
SAFEGUARDS.  BUT ENCOURAGEMENT OF DELAY IS FATAL TO THE VINDICATION OF
THE CRIMINAL LAW.  BEARING THE DISCOMFITURE AND COST OF A PROSECUTION
FOR CRIME EVEN BY AN INNOCENT PERSON IS ONE OF THE PAINFUL OBLIGATIONS
OF CITIZENSHIP.  THE CORRECTNESS OF A TRIAL COURT'S REJECTION EVEN OF A
CONSTITUTIONAL CLAIM MADE BY THE ACCUSED IN THE PROCESS OF PROSECUTION
MUST AWAIT HIS CONVICTION BEFORE ITS RECONSIDERATION BY AN APPELLATE
TRIBUNAL.  COGEN V. UNITED STATES, 278 U.S. 221. 

IN THUS DENYING TO THE APPELLATE COURTS THE POWER TO REVIEW RULINGS
AT NISI PRIUS, GENERALLY, UNTIL AFTER THE ENTIRE CONTROVERSY HAS BEEN
CONCLUDED, CONGRESS HAS SOUGHT TO ACHIEVE THE EFFECTIVE CONDUCT OF
LITIGATION.  FOR PURPOSES OF APPELLATE PROCEDURE, FINALITY - THE IDEA
UNDERLYING "FINAL JUDGMENTS AND DECREES" IN THE JUDICIARY ACT OF 1789
AND NOW EXPRESSED BY "FINAL DECISIONS" IN SEC. 128 OF THE JUDICIAL CODE
- IS NOT A TECHNICAL CONCEPT OF TEMPORAL OR PHYSICAL TERMINATION.  IT
IS THE MEANS FOR ACHIEVING A HEALTHY LEGAL SYSTEM.  AS AN INSTRUMENT OF
SUCH POLICY THE REQUIREMENT OF FINALITY WILL BE ENFORCED NOT ONLY
AGAINST A PARTY TO THE LITIGATION BUT AGAINST A WITNESS WHO IS A
STRANGER TO THE MAIN PROCEEDING.  NEITHER A PARTY NOR A NON-PARTY
WITNESS WILL BE ALLOWED TO TAKE TO THE UPPER COURT A RULING WHERE THE
RESULT OF REVIEW WILL BE "TO HALT IN THE ORDERLY PROGRESS OF A CAUSE
AND CONSIDER INCIDENTALLY A QUESTION WHICH HAS HAPPENED TO CROSS THE
PATH OF SUCH LITIGATION  ...  "  MR. CHIEF JUSTICE TAFT, IN SEGUROLA V.
UNITED STATES, 275 U.S. 106, 112.  THIS IS SO DESPITE THE FACT THAT A
WITNESS WHO IS A STRANGER TO THE LITIGATION COULD NOT BE PARTY TO AN
APPEAL TAKEN AT THE CONCLUSION OF THE MAIN CAUSE.  SUCH WAS THE RULING
IN ALEXANDER V. UNITED STATES, 201 U.S. 117.  IN THAT CASE, WITNESSES
WERE DIRECTED TO APPEAR AND PRODUCE DOCUMENTS BEFORE A SPECIAL EXAMINER
DESIGNATED BY THE CIRCUIT COURT TO HEAR TESTIMONY IN A SUIT BROUGHT BY
THE UNITED STATES TO ENFORCE THE SHERMAN LAW.  UPON REFUSAL TO SUBMIT
THE DOCUMENTS CALLED FOR IN THE SUBPOENA, THE UNITED STATES PETITIONED
THE CIRCUIT COURT FOR AN ORDER REQUIRING COMPLIANCE.  THE PETITION WAS
GRANTED, AND APPEALS WERE THEN ALLOWED TO THIS COURT.  THESE APPEALS
WERE DISMISSED FOR WANT OF JURISDICTION.  THE GROUNDS OF THE DECISION
ARE BEST INDICATED IN THE LANGUAGE OF THE OPINION: 

"IN A CERTAIN SENSE FINALITY CAN BE ASSERTED OF THE ORDERS UNDER
REVIEW, SO, IN A CERTAIN SENSE, FINALITY CAN BE ASSERTED OF ANY ORDER
OF A COURT.  AND SUCH AN ORDER MAY COERCE A WITNESS, LEAVING TO HIM NO
ALTERNATIVE BUT TO OBEY OR BE PUNISHED.  IT MAY HAVE THE EFFECT AND THE
SAME CHARACTERISTIC OF FINALITY AS THE ORDERS UNDER REVIEW, BUT FROM
SUCH A RULING IT WILL NOT BE CONTENDED THERE IS AN APPEAL.  LET THE
COURT GO FURTHER AND PUNISH THE WITNESS FOR CONTEMPT OF ITS ORDER, THEN
ARRIVES A RIGHT OF REVIEW, AND THIS IS ADEQUATE FOR HIS PROTECTION
WITHOUT UNDULY IMPEDING THE PROGRESS OF THE CASE  ...  THIS POWER TO
PUNISH BEING EXERCISED THE MATTER BECOMES PERSONAL TO THE WITNESS AND A
JUDGMENT AS TO HIM.  PRIOR TO THAT THE PROCEEDINGS ARE INTERLOCUTORY IN
THE ORIGINAL SUIT."  201 U.S. AT 121-22. 

WE MUST NOW DECIDE WHETHER THE SITUATION OF A WITNESS SUMMONED TO
PRODUCE DOCUMENTS BEFORE A GRAND JURY IS SO DIFFERENT FROM THAT OF THE
WITNESS IN THE ALEXANDER CASE THAT THE SOUND CONSIDERATIONS OF POLICY
CONTROLLING THERE SHOULD NOT GOVERN HERE.  THE CONSTITUTION ITSELF
MAKES THE GRAND JURY A PART OF THE JUDICIAL PROCESS.  IT MUST INITIATE
PROSECUTION FOR THE MOST IMPORTANT FEDERAL CRIMES.  IT DOES SO UNDER
GENERAL INSTRUCTIONS FROM THE COURT TO WHICH IT IS ATTACHED AND TO
WHICH, FROM TIME TO TIME, IT REPORTS ITS FINDINGS.  THE PROCEEDING
BEFORE A GRAND JURY CONSTITUTES "A JUDICIAL INQUIRY," HALE V. HENKEL,
201 U.S. 43, 66, OF THE MOST ANCIENT LINEAGE.  SEE WILSON V. UNITED
STATES, 221 U.S. 361.  THE DURATION OF ITS LIFE, FREQUENTLY SHORT, IS
LIMITED BY STATUTE.  IT IS NO LESS IMPORTANT TO SAFEGUARD AGAINST UNDUE
INTERRUPTION THE INQUIRY INSTITUTED BY A GRAND JURY THAN TO PROTECT
FROM DELAY THE PROGRESS OF THE TRIAL AFTER AN INDICTMENT HAS BEEN
FOUND.  OPPORTUNITY FOR OBSTRUCTING THE "ORDERLY PROGRESS" OF
INVESTIGATION SHOULD NO MORE BE ENCOURAGED IN ONE CASE THAN IN THE
OTHER.  THAT A GRAND JURY PROCEEDING HAS NO DEFINED LITIGANTS AND THAT
NONE MAY EMERGE FROM IT, IS IRRELEVANT TO THE ISSUE.  THE WITNESS'
RELATION TO THE INQUIRY IS NO DIFFERENT IN A GRAND JURY PROCEEDING THAN
IT WAS IN THE ALEXANDER CASE.  WHATEVER RIGHT HE MAY HAVE REQUIRES NO
FURTHER PROTECTION IN EITHER CASE THAN THAT AFFORDED BY THE DISTRICT
COURT UNTIL THE WITNESS CHOOSES TO DISOBEY AND IS COMMITTED FOR
CONTEMPT.  SEE HALE V. HENKEL, SUPRA, AND WILSON V. UNITED STATES,
SUPRA.  AT THAT POINT THE WITNESS' SITUATION BECOMES SO SEVERED FROM
THE MAIN PROCEEDING AS TO PERMIT AN APPEAL.  TO BE SURE, THIS TOO MAY
INVOLVE AN INTERRUPTION OF THE TRIAL OR OF THE INVESTIGATION.  BUT NOT
TO ALLOW THIS INTERRUPTION WOULD FOREVER PRECLUDE REVIEW OF THE
WITNESS' CLAIM, FOR HIS ALTERNATIVES ARE TO ABANDON THE CLAIM OR
LANGUISH IN JAIL. 

THIS ANALYSIS OF FINALITY IS ILLUSTRATED BY PERLMAN V. UNITED STATES,
247 U.S. 7.  FN5  THERE, EXHIBITS OWNED BY PERLMAN AND IMPOUNDED IN
COURT DURING A PATENT SUIT WERE, ON MOTION OF THE UNITED STATES
ATTORNEY, DIRECTED TO BE PRODUCED BEFORE A GRAND JURY.  PERLMAN
PETITIONED THE DISTRICT COURT TO PROHIBIT THIS USE, INVOKING A
CONSTITUTIONAL PRIVILEGE.  THIS PETITION WAS DENIED AND PERLMAN SOUGHT
REVIEW HERE.  THE UNITED STATES CLAIMED THAT THE ACTION OF THE DISTRICT
COURT WAS "NOT FINAL" BUT MERELY INTERLOCUTORY AND THEREFORE NOT
REVIEWABLE BY THIS COURT.  WE REJECTED THE GOVERNMENT'S CONTENTION.  TO
HAVE HELD OTHERWISE WOULD HAVE RENDERED PERLMAN "POWERLESS TO AVERT THE
MISCHIEF OF THE ORDER  ...  " 247 U.S. AT 13.  PERLMAN'S EXHIBITS WERE
ALREADY IN THE COURT'S POSSESSION.  IF THEIR PRODUCTION BEFORE THE
GRAND JURY VIOLATED PERLMAN'S CONSTITUTIONAL RIGHT THEN HE COULD
PROTECT THAT RIGHT ONLY BY A SEPARATE PROCEEDING TO PROHIBIT THE
FORBIDDEN USE.  TO HAVE DENIED HIM OPPORTUNITY FOR REVIEW ON THE THEORY
THAT THE DISTRICT COURT'S ORDER WAS INTERLOCUTORY WOULD HAVE MADE THE
DOCTRINE OF FINALITY A MEANS OF DENYING PERLMAN ANY APPELLATE REVIEW OF
HIS CONSTITUTIONAL CLAIM.  DUE REGARD FOR EFFICIENCY IN LITIGATION MUST
NOT BE CARRIED SO FAR AS TO DENY ALL OPPORTUNITY FOR THE APPEAL
CONTEMPLATED BY THE STATUTES.  FN6 

ONE CLASS OF CASES DEALING WITH THE DUTY OF WITNESSES TO TESTIFY
PRESENTS DIFFERENTIATING CIRCUMSTANCES.  THESE CASES HAVE ARISEN UNDER
SEC. 12 OF THE INTERSTATE COMMERCE ACT, WHEREBY A PROCEEDING MAY BE
BROUGHT IN THE DISTRICT COURT TO COMPEL TESTIMONY FROM PERSONS WHO HAVE
REFUSED TO MAKE DISCLOSURES BEFORE THE INTERSTATE COMMERCE COMMISSION. 
FN7  IN THESE CASES THE ORDERS OF THE DISTRICT COURT DIRECTING THE
WITNESS TO ANSWER HAVE BEEN HELD FINAL AND REVIEWABLE.  INTERSTATE
COMMERCE COMM'N V. BRIMSON, 154 U.S. 447; HARRIMAN V. INTERSTATE
COMMERCE COMM'N, 211 U.S. 407; ELLIS V. INTERSTATE COMMERCE COMM'N, 237
U.S. 434.  SUCH CASES WERE DULY CONSIDERED IN THE ALEXANDER CASE, AND
DEEMED TO REST "ON STATUTORY PROVISIONS WHICH DO NOT APPLY TO THE
PROCEEDINGS AT BAR, AND, WHILE THERE MAY BE RESEMBLANCES TO THE LATTER,
THERE ARE ALSO DIFFERENCES."  201 U.S. AT 121.  THE DIFFERENCES WERE
THOUGHT CONTROLLING.  APPEAL FROM AN ORDER UNDER SEC. 12 WAS AGAIN HERE
IN THE ELLIS CASE, SUPRA, FULLY ARGUED IN THE BRIEFS, AND AGAIN
DIFFERENTIATED FROM A SITUATION LIKE THAT IN THE ALEXANDER CASE.  "NO
DOUBT" WAS FELT THAT AN APPEAL LAY FROM THE DISTRICT COURT'S DIRECTION
TO TESTIFY.  "IT IS THE END OF A PROCEEDING BEGUN AGAINST THE WITNESS"
WAS THE PITHY EXPRESSION FOR THIS TYPE OF CASE.  237 U.S. AT 442.  AND
IT IS A SUFFICIENT JUSTIFICATION FOR TREATING THESE CONTROVERSIES
DIFFERENTLY FROM THOSE ARISING OUT OF COURT PROCEEDINGS UNRELATED TO
ANY ADMINISTRATIVE AGENCY.  THE DOCTRINE OF FINALITY IS A PHASE OF THE
DISTRIBUTION OF AUTHORITY WITHIN THE JUDICIAL HIERARCHY.  BUT A
PROCEEDING LIKE THAT UNDER SEC. 12 OF THE INTERSTATE COMMERCE ACT MAY
BE DEEMED SELF-CONTAINED, SO FAR AS THE JUDICIARY IS CONCERNED - AS
MUCH SO AS AN INDEPENDENT SUIT IN EQUITY IN WHICH APPEAL WILL LIE FROM
AN INJUNCTION WITHOUT THE NECESSITY OF WAITING FOR DISOBEDIENCE.  AFTER
THE COURT HAS ORDERED A RECUSANT WITNESS TO TESTIFY BEFORE THE
COMMISSION, THERE REMAINS NOTHING FOR IT TO DO.  NOT ONLY IS THIS TRUE
WITH RESPECT TO THE PARTICULAR WITNESS WHOSE TESTIMONY IS SOUGHT; THERE
IS NOT, AS IN THE CASE OF A GRAND JURY OR TRIAL, ANY FURTHER JUDICIAL
INQUIRY WHICH WOULD BE HALTED WERE THE OFFENDING WITNESS PERMITTED TO
APPEAL.  THE PROCEEDING BEFORE THE DISTRICT COURT IS NOT ANCILLARY TO
ANY JUDICIAL PROCEEDING.  SO FAR AS THE COURT IS CONCERNED, IT IS
COMPLETE IN ITSELF. 

WE DEEM IT UNNECESSARY TO SAY MORE IN SUSTAINING THE CIRCUIT COURT OF
APPEALS.  THE CHALLENGED JUDGMENT IS AFFIRMED. 

FN1  SECTION 128(A) PROVIDES THAT, "THE CIRCUIT COURTS OF APPEAL
SHALL HAVE APPELLATE JURISDICTION TO REVIEW BY APPEAL FINAL DECISIONS. 
...  "  SIMILAR LANGUAGE WAS USED IN THE ACT OF 1891, C. 517, 26 STAT.
828. 

FN2  SECS. 21, 22, 25 OF THE ACT OF SEPTEMBER 24, 1789, 1 STAT. 73,
83-85.  FOR A DISCUSSION OF THE HISTORICAL BACKGROUND, ENGLISH AND
AMERICAN, OF THE FINALITY CONCEPT, SEE CRICK, THE FINAL JUDGMENT AS A
BASIS FOR APPEAL, 41 YALE L. J. 539. 

FN3  SEE SEC. 129 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 227, DEALING
WITH APPEALS FROM INTERLOCUTORY INJUNCTIONS, APPEALS FROM INTERLOCUTORY
DECISIONS IN RECEIVERSHIP CASES AND FROM INTERLOCUTORY DECREES
DETERMINING RIGHTS AND LIABILITIES IN ADMIRALTY LITIGATION. 

FN4 SEE UNITED STATES V. MORE, 3 CRANCH 159.  ONLY BY CERTIFICATE OF
DIVISION OF OPINION IN THE CIRCUIT COURTS COULD REVIEW BE OBTAINED. 
SEE CURTIS, JURISDICTION OF THE UNITED STATES COURTS, 82.  BY THE ACT
OF 1889 REVIEW AS OF RIGHT WAS ALLOWED IN CAPITAL CASES.  25 STAT. 655,
656.  FOR THE HISTORY OF FEDERAL CRIMINAL APPEAL SEE UNITED STATES V.
SANGES, 144 U.S. 310, 319-22. 

FN5  COMPARE GO-BART CO. V. UNITED STATES, 282 U.S. 344.    FN6
BURDEAU V. MCDOWELL, 256 U.S. 465, IS CONSISTENT WITH OUR ANALYSIS.  IN
THAT CASE PROCEEDINGS WERE COMMENCED IN THE DISTRICT COURT FOR THE
RECOVERY OF DOCUMENTS HELD BY THE GOVERNMENT FOR USE BEFORE A GRAND
JURY.  THE DISTRICT COURT GRANTED THE RELIEF SOUGHT, AND THE GOVERNMENT
APPEALED.  IN THIS COURT THE ACTION OF THE DISTRICT COURT WAS TREATED
AS FINAL, AND HENCE SUBJECT TO REVIEW.  BUT THE PRACTICAL
CONSIDERATIONS THERE INVOLVED WERE ENTIRELY DIFFERENT FROM THOSE WHICH
MUST GOVERN HERE.  IN BURDEAU V. MCDOWELL THE ACTION OF THE DISTRICT
COURT WAS ITSELF AN INTERRUPTION OF THE GRAND JURY'S INQUIRY; APPEAL BY
THE GOVERNMENT DID NOT HALT THE "ORDERLY PROGRESS" OF THE INQUIRY. 

FN7  25 STAT. 858; 49 U.S.C. SEC. 12. 

MR. JUSTICE MURPHY DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THESE CASES. 
..END :











HELVERING V. CLIFFORD, 309 U.S. 331 


NO. 383.  ARGUED FEBRUARY 5, 1940.  - DECIDED FEBRUARY 26, 1940.  - 105
F.2D 586, REVERSED. 


1.  A HUSBAND WHO DECLARED HIMSELF TRUSTEE OF CERTAIN SECURITIES FOR
THE TERM OF FIVE YEARS, TO PAY TO HIS WIFE THE INCOME ACCRUING DURING
THAT PERIOD, BUT RETAINED IN HIMSELF THE RIGHT TO ACCUMULATE INCOME,
AND, WITH INSIGNIFICANT EXCEPTIONS, THE COMPLETE CONTROL OVER THE
PRINCIPAL FUND - ITS CONVERSION, INVESTMENT, REINVESTMENT, ETC. - AND
THE REVERSION OF THE CORPUS AT THE END OF THE TERM, MAY PROPERLY BE
FOUND BY THE FEDERAL TAXING AUTHORITIES TO BE OWNER OF THE FUND, WITHIN
THE INTENT OF SEC. 22(A) OF THE REVENUE ACT OF 1934, NOTWITHSTANDING
THE TRUST, AND TAXABLE ON THE TRUST INCOME AS PART OF HIS PERSONAL
INCOME.  P. 335. 

WHERE THE BENEFITS DIRECTLY OR INDIRECTLY RETAINED BLEND SO
IMPERCEPTIBLY WITH THE NORMAL CONCEPTS OF FULL OWNERSHIP, IT CAN NOT BE
SAID THAT THE TRIERS OF FACT COMMITTED REVERSIBLE ERROR WHEN THEY FOUND
THAT THE HUSBAND WAS THE OWNER OF THE CORPUS FOR THE PURPOSES OF SEC.
22(A).  P. 336. 

2.  THE BROAD LANGUAGE OF SEC. 22(A) OF THE REVENUE ACT OF 1934
INDICATES THE PURPOSE OF CONGRESS TO USE THE FULL MEASURE OF ITS TAXING
POWER WITHIN THE DEFINABLE CATEGORIES SPECIFIED THEREIN.  P. 337. 

3.  WHETHER THE CREATOR OF A TRUST MAY STILL BE TREATED UNDER SEC.
22(A) AS THE OWNER OF THE CORPUS, IS NOT DETERMINED BY TECHNICALITIES
OF THE LAW OF TRUSTS AND CONVEYANCES, BUT MUST DEPEND ON ANALYSIS OF
THE TERMS OF THE TRUST AND ON ALL THE CIRCUMSTANCES ATTENDANT ON ITS
CREATION AND OPERATION.  P. 334. 

WHERE THE GRANTOR IS THE TRUSTEE, AND THE BENEFICIARIES MEMBERS OF
HIS FAMILY GROUP, SPECIAL SCRUTINY IS NECESSARY, LEST WHAT IS IN
REALITY BUT ONE ECONOMIC UNIT BE INCREASED TO TWO OR MORE BY DEVICES
WHICH, THOUGH VALID UNDER STATE LAW, ARE NOT CONCLUSIVE UNDER SEC.
22(A) OF THE REVENUE ACT.  P. 335. 

4.  THE FACT THAT CONGRESS MADE SPECIFIC PROVISION IN SEC. 166 OF THE
REVENUE ACT OF 1934 FOR REVOCABLE TRUSTS BUT FAILED TO ADOPT A TREASURY
RECOMMENDATION THAT SIMILAR SPECIFIC TREATMENT SHOULD BE GIVEN INCOME
FROM SHORT TERM TRUSTS, DID NOT SUBTRACT THE LATTER FROM SEC. 22(A). 
P. 337. 

CERTIORARI, 308 U.S. 542, TO REVIEW A JUDGMENT WHICH REVERSED A
DECISION OF THE BOARD OF TAX APPEALS (38 B.T.A. 1532), SUSTAINING A
DEFICIENCY ASSESSMENT. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. CLIFFORD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

IN 1934 RESPONDENT DECLARED HIMSELF TRUSTEE OF CERTAIN SECURITIES
WHICH HE OWNED.  ALL NET INCOME FROM THE TRUST WAS TO BE HELD FOR THE
"EXCLUSIVE BENEFIT" OF RESPONDENT'S WIFE.  THE TRUST WAS FOR A TERM OF
FIVE YEARS, EXCEPT THAT IT WOULD TERMINATE EARLIER ON THE DEATH OF
EITHER RESPONDENT OR HIS WIFE.  ON TERMINATION OF THE TRUST THE ENTIRE
CORPUS WAS TO GO TO RESPONDENT, WHILE ALL "ACCRUED OR UNDISTRIBUTED NET
INCOME" AND "ANY PROCEEDS FROM THE INVESTMENT OF SUCH NET INCOME" WAS
TO BE TREATED AS PROPERTY OWNED ABSOLUTELY BY THE WIFE.  DURING THE
CONTINUANCE OF THE TRUST RESPONDENT WAS TO PAY OVER TO HIS WIFE THE
WHOLE OR SUCH PART OF THE NET INCOME AS HE IN HIS "ABSOLUTE DISCRETION"
MIGHT DETERMINE.  AND DURING THAT PERIOD HE HAD FULL POWER (A) TO
EXERCISE ALL VOTING POWERS INCIDENT TO THE TRUSTEED SHARES OF STOCK;
(B) TO "SELL, EXCHANGE, MORTGAGE, OR PLEDGE" ANY OF THE SECURITIES
UNDER THE DECLARATION OF TRUST "WHETHER AS PART OF THE CORPUS OR
PRINCIPAL THEREOF OR AS INVESTMENTS OR PROCEEDS AND ANY INCOME
THEREFROM, UPON SUCH TERMS AND FOR SUCH CONSIDERATION" AS RESPONDENT IN
HIS "ABSOLUTE DISCRETION MAY DEEM FITTING"; (C) TO INVEST "ANY CASH OR
MONEY IN THE TRUST ESTATE OR ANY INCOME THEREFROM" BY LOANS, SECURED OR
UNSECURED, BY DEPOSITS IN BANKS, OR BY PURCHASE OF SECURITIES OR OTHER
PERSONAL PROPERTY "WITHOUT RESTRICTION" BECAUSE OF THEIR "SPECULATIVE
CHARACTER" OR "RATE OF RETURN" OR ANY "LAWS PERTAINING TO THE
INVESTMENT OF TRUST FUNDS"; (D) TO COLLECT ALL INCOME; (E) TO
COMPROMISE, ETC., ANY CLAIMS HELD BY HIM AS TRUSTEE; (F) TO HOLD ANY
PROPERTY IN THE TRUST ESTATE IN THE NAMES OF "OTHER PERSONS OR IN MY
OWN NAME AS AN INDIVIDUAL" EXCEPT AS OTHERWISE PROVIDED.  EXTRAORDINARY
CASH DIVIDENDS, STOCK DIVIDENDS, PROCEEDS FROM THE SALE OF UNEXERCISED
SUBSCRIPTION RIGHTS, OR ANY ENHANCEMENT, REALIZED OR NOT, IN THE VALUE
OF THE SECURITIES WERE TO BE TREATED AS PRINCIPAL, NOT INCOME.  AN
EXCULPATORY CLAUSE PURPORTED TO PROTECT HIM FROM ALL LOSSES EXCEPT
THOSE OCCASIONED BY HIS "OWN WILFUL AND DELIBERATE" BREACH OF DUTIES AS
TRUSTEE.  AND FINALLY IT WAS PROVIDED THAT NEITHER THE PRINCIPAL NOR
ANY FUTURE OR ACCRUED INCOME SHOULD BE LIABLE FOR THE DEBTS OF THE
WIFE; AND THAT THE WIFE COULD NOT TRANSFER, ENCUMBER, OR ANTICIPATE ANY
INTEREST IN THE TRUST OR ANY INCOME THEREFROM PRIOR TO ACTUAL PAYMENT
THEREOF TO HER. 

IT WAS STIPULATED THAT WHILE THE "TAX EFFECTS" OF THIS TRUST WERE
CONSIDERED BY RESPONDENT THEY WERE NOT THE "SOLE CONSIDERATION"
INVOLVED IN HIS DECISION TO SET IT UP, AS BY THIS AND OTHER GIFTS HE
INTENDED TO GIVE "SECURITY AND ECONOMIC INDEPENDENCE" TO HIS WIFE AND
CHILDREN.  IT WAS ALSO STIPULATED THAT RESPONDENT'S WIFE HAD
SUBSTANTIAL INCOME OF HER OWN FROM OTHER SOURCES; THAT THERE WAS NO
RESTRICTION ON HER USE OF THE TRUST INCOME, ALL OF WHICH INCOME WAS
PLACED IN HER PERSONAL CHECKING ACCOUNT, INTERMINGLED WITH HER OTHER
FUNDS, AND EXPENDED BY HER ON HERSELF, HER CHILDREN AND RELATIVES; THAT
THE TRUST WAS NOT DESIGNED TO RELIEVE RESPONDENT FROM LIABILITY FOR
FAMILY OR HOUSEHOLD EXPENSES AND THAT AFTER EXECUTION OF THE TRUST HE
PAID LARGE SUMS FROM HIS PERSONAL FUNDS FOR SUCH PURPOSES. 

RESPONDENT PAID A FEDERAL GIFT TAX ON THIS TRANSFER.  DURING THE YEAR
1934 ALL INCOME FROM THE TRUST WAS DISTRIBUTED TO THE WIFE WHO INCLUDED
IT IN HER INDIVIDUAL RETURN FOR THAT YEAR.  THE COMMISSIONER, HOWEVER,
DETERMINED A DEFICIENCY IN RESPONDENT'S RETURN FOR THAT YEAR ON THE
THEORY THAT INCOME FROM THE TRUST WAS TAXABLE TO HIM.  THE BOARD OF TAX
APPEALS SUSTAINED THAT REDETERMINATION.  38 B.T.A. 1532.  THE CIRCUIT
COURT OF APPEALS REVERSED.  105 F.2D 586.  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE TO THE REVENUE OF THE USE OF SUCH SHORT TERM
TRUSTS IN THE REDUCTION OF SURTAXES. 

SEC. 22(A) OF THE REVENUE ACT OF 1934, 48 STAT. 680, INCLUDES AMONG
"GROSS INCOME" ALL "GAINS, PROFITS, AND INCOME DERIVED  ...  FROM
PROFESSIONS, VOCATIONS, TRADES, BUSINESSES, COMMERCE, OR SALES, OR
DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL, GROWING OUT OF THE
OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY; ALSO FROM INTEREST,
RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF ANY BUSINESS CARRIED
ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND INCOME DERIVED FROM ANY
SOURCE WHATEVER."  THE BROAD SWEEP OF THIS LANGUAGE INDICATES THE
PURPOSE OF CONGRESS TO USE THE FULL MEASURE OF ITS TAXING POWER WITHIN
THOSE DEFINABLE CATEGORIES.  CF. HELVERING V. MIDLAND MUTUAL LIFE
INSURANCE CO., 300 U.S. 216.  HENCE OUR CONSTRUCTION OF THE STATUTE
SHOULD BE CONSONANT WITH THAT PURPOSE.  TECHNICAL CONSIDERATIONS,
NICETIES OF THE LAW OF TRUSTS OR CONVEYANCES, OR THE LEGAL
PARAPHERNALIA WHICH INVENTIVE GENIUS MAY CONSTRUCT AS A REFUGE FROM
SURTAXES SHOULD NOT OBSCURE THE BASIC ISSUE.  THAT ISSUE IS WHETHER THE
GRANTOR AFTER THE TRUST HAS BEEN ESTABLISHED MAY STILL BE TREATED,
UNDER THIS STATUTORY SCHEME, AS THE OWNER OF THE CORPUS.  SEE BLAIR V.
COMMISSIONER, 300 U.S. 5, 12.  IN ABSENCE OF MORE PRECISE STANDARDS OR
GUIDES SUPPLIED BY STATUTE OR APPROPRIATE REGULATIONS,  FN1  THE ANSWER
TO THAT QUESTION MUST DEPEND ON AN ANALYSIS OF THE TERMS OF THE TRUST
AND ALL THE CIRCUMSTANCES ATTENDANT ON ITS CREATION AND OPERATION.  AND
WHERE THE GRANTOR IS THE TRUSTEE AND THE BENEFICIARIES ARE MEMBERS OF
HIS FAMILY GROUP, SPECIAL SCRUTINY OF THE ARRANGEMENT IS NECESSARY LEST
WHAT IS IN REALITY BUT ONE ECONOMIC UNIT BE MULTIPLIED INTO TWO OR MORE
FN2  BY DEVICES WHICH, THOUGH VALID UNDER STATE LAW, ARE NOT
CONCLUSIVE SO FAR AS SEC. 22(A) IS CONCERNED. 

IN THIS CASE WE CANNOT CONCLUDE AS A MATTER OF LAW THAT RESPONDENT
CEASED TO BE THE OWNER OF THE CORPUS AFTER THE TRUST WAS CREATED. 
RATHER, THE SHORT DURATION OF THE TRUST, THE FACT THAT THE WIFE WAS THE
BENEFICIARY, AND THE RETENTION OF CONTROL OVER THE CORPUS BY RESPONDENT
ALL LEAD IRRESISTIBLY TO THE CONCLUSION THAT RESPONDENT CONTINUED TO BE
THE OWNER FOR PURPOSES OF SEC. 22(A). 

SO FAR AS HIS DOMINION AND CONTROL WERE CONCERNED IT SEEMS CLEAR THAT
THE TRUST DID NOT EFFECT ANY SUBSTANTIAL CHANGE.  IN SUBSTANCE HIS
CONTROL OVER THE CORPUS WAS IN ALL ESSENTIAL RESPECTS THE SAME AFTER
THE TRUST WAS CREATED, AS BEFORE.  THE WIDE POWERS WHICH HE RETAINED
INCLUDED FOR ALL PRACTICAL PURPOSES MOST OF THE CONTROL WHICH HE AS AN
INDIVIDUAL WOULD HAVE.  THERE WERE, WE MAY ASSUME, EXCEPTIONS, SUCH AS
HIS DISABILITY TO MAKE A GIFT OF THE CORPUS TO OTHERS DURING THE TERM
OF THE TRUST AND TO MAKE LOANS TO HIMSELF.  BUT THIS DILUTION IN HIS
CONTROL WOULD SEEM TO BE INSIGNIFICANT AND IMMATERIAL, SINCE CONTROL
OVER INVESTMENT REMAINED.  IF IT BE SAID THAT SUCH CONTROL IS THE TYPE
OF DOMINION EXERCISED BY ANY TRUSTEE, THE ANSWER IS SIMPLE.  WE HAVE AT
BEST A TEMPORARY REALLOCATION OF INCOME WITHIN AN INTIMATE FAMILY
GROUP.  SINCE THE INCOME REMAINS IN THE FAMILY AND SINCE THE HUSBAND
RETAINS CONTROL OVER THE INVESTMENT, HE HAS RATHER COMPLETE ASSURANCE
THAT THE TRUST WILL NOT EFFECT ANY SUBSTANTIAL CHANGE IN HIS ECONOMIC
POSITION.  IT IS HARD TO IMAGINE THAT RESPONDENT FELT HIMSELF THE
POORER AFTER THIS TRUST HAD BEEN EXECUTED OR, IF HE DID, THAT IT HAD
ANY RATIONAL FOUNDATION IN FACT.  FOR AS A RESULT OF THE TERMS OF THE
TRUST AND THE INTIMACY OF THE FAMILIAL RELATIONSHIP RESPONDENT RETAINED
THE SUBSTANCE OF FULL ENJOYMENT OF ALL THE RIGHTS WHICH PREVIOUSLY HE
HAD IN THE PROPERTY.  THAT MIGHT NOT BE TRUE IF ONLY STRICTLY LEGAL
RIGHTS WERE CONSIDERED.  BUT WHEN THE BENEFITS FLOWING TO HIM
INDIRECTLY THROUGH THE WIFE ARE ADDED TO THE LEGAL RIGHTS HE RETAINED,
THE AGGREGATE MAY BE SAID TO BE A FAIR EQUIVALENT OF WHAT HE PREVIOUSLY
HAD.  TO EXCLUDE FROM THE AGGREGATE THOSE INDIRECT BENEFITS WOULD BE TO
DEPRIVE SEC. 22(A) OF CONSIDERABLE VITALITY AND TO TREAT AS IMMATERIAL
WHAT MAY BE HIGHLY RELEVANT CONSIDERATIONS IN THE CREATION OF SUCH
FAMILY TRUSTS.  FOR WHERE THE HEAD OF THE HOUSEHOLD HAS INCOME IN
EXCESS OF NORMAL NEEDS, IT MAY WELL MAKE BUT LITTLE DIFFERENCE TO HIM
(EXCEPT INCOME-TAX-WISE) WHERE PORTIONS OF THAT INCOME ARE ROUTED - SO
LONG AS IT STAYS IN THE FAMILY GROUP.  IN THOSE CIRCUMSTANCES THE ALL
IMPORTANT FACTOR MIGHT BE RETENTION BY HIM OF CONTROL OVER THE
PRINCIPAL.  WITH THAT CONTROL IN HIS HANDS HE WOULD KEEP DIRECT COMMAND
OVER ALL THAT HE NEEDED TO REMAIN IN SUBSTANTIALLY THE SAME FINANCIAL
SITUATION AS BEFORE.  OUR POINT HERE IS THAT NO ONE FACT IS NORMALLY
DECISIVE BUT THAT ALL CONSIDERATIONS AND CIRCUMSTANCES OF THE KIND WE
HAVE MENTIONED ARE RELEVANT TO THE QUESTION OF OWNERSHIP AND ARE
APPROPRIATE FOUNDATIONS FOR FINDINGS ON THAT ISSUE.  THUS, WHERE, AS IN
THIS CASE, THE BENEFITS DIRECTLY OR INDIRECTLY RETAINED BLEND SO
IMPERCEPTIBLY WITH THE NORMAL CONCEPTS OF FULL OWNERSHIP, WE CANNOT SAY
THAT THE TRIERS OF FACT COMMITTED REVERSIBLE ERROR WHEN THEY FOUND THAT
THE HUSBAND WAS THE OWNER OF THE CORPUS FOR THE PURPOSES OF SEC.
22(A).  TO HOLD OTHERWISE WOULD BE TO TREAT THE WIFE AS A COMPLETE
STRANGER; TO LET MERE FORMALISM OBSCURE THE NORMAL CONSEQUENCES OF
FAMILY SOLIDARITY; AND TO FORCE CONCEPTS OF OWNERSHIP TO BE FASHIONED
OUT OF LEGAL NICETIES WHICH MAY HAVE LITTLE OR NO SIGNIFICANCE IN SUCH
HOUSEHOLD ARRANGEMENTS. 

THE BUNDLE OF RIGHTS WHICH HE RETAINED WAS SO SUBSTANTIAL THAT
RESPONDENT CANNOT BE HEARD TO COMPLAIN THAT HE IS THE "VICTIM OF
DESPOTIC POWER WHEN FOR THE PURPOSE OF TAXATION HE IS TREATED AS OWNER
ALTOGETHER."  SEE DUPONT V. COMMISSIONER, 289 U.S. 685, 689. 

WE SHOULD ADD THAT LIABILITY UNDER SEC. 22(A) IS NOT FORECLOSED BY
REASON OF THE FACT THAT CONGRESS MADE SPECIFIC PROVISION IN SEC. 166
FOR REVOCABLE TRUSTS, BUT FAILED TO ADOPT THE TREASURY RECOMMENDATION
IN 1934, HELVERING V. WOOD, POST, P. 344, THAT SIMILAR SPECIFIC
TREATMENT SHOULD BE ACCORDED INCOME FROM SHORT TERM TRUSTS.  SUCH
CHOICE, WHILE RELEVANT TO THE SCOPE OF SEC. 166, HELVERING V. WOOD,
SUPRA, CANNOT BE SAID TO HAVE SUBTRACTED FROM SEC. 22(A) WHAT WAS
ALREADY THERE.  RATHER, ON THIS EVIDENCE IT MUST BE ASSUMED THAT THE
CHOICE WAS BETWEEN A GENERALIZED TREATMENT UNDER SEC. 22(A) OR SPECIFIC
TREATMENT UNDER A SEPARATE PROVISION  FN3 (SUCH AS WAS ACCORDED
REVOCABLE TRUSTS UNDER SEC. 166); NOT BETWEEN TAXING OR NOT TAXING
GRANTORS OF SHORT TERM TRUSTS.  IN VIEW OF THE BROAD AND SWEEPING
LANGUAGE OF SEC. 22(A), A SPECIFIC PROVISION COVERING SHORT TERM TRUSTS
MIGHT WELL DO NO MORE THAN TO CARVE OUT OF SEC. 22(A) A DEFINED GROUP
OF CASES TO WHICH A RULE OF THUMB WOULD BE APPLIED.  THE FAILURE OF
CONGRESS TO ADOPT ANY SUCH RULE OF THUMB FOR THAT TYPE OF TRUST MUST BE
TAKEN TO DO NO MORE THAN TO LEAVE TO THE TRIERS OF FACT THE INITIAL
DETERMINATION OF WHETHER OR NOT ON THE FACTS OF EACH CASE THE GRANTOR
REMAINS THE OWNER FOR PURPOSES OF SEC. 22(A). 

IN VIEW OF THIS RESULT WE NEED NOT EXAMINE THE CONTENTION THAT THE
TRUST DEVICE FALLS WITHIN THE RULE OF LUCAS V. EARL, 281 U.S. 111 AND
BURNET V. LEININGER, 285 U.S. 136, RELATING TO THE ASSIGNMENT OF FUTURE
INCOME; OR THAT RESPONDENT IS LIABLE UNDER SEC. 166, TAXING GRANTORS ON
THE INCOME OF REVOCABLE TRUSTS. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE BOARD OF TAX APPEALS IS AFFIRMED.  REVERSED. 

FN1  WE HAVE NOT CONSIDERED HERE ART. 166-1 OF TREASURY REGULATIONS
86 PROMULGATED UNDER SEC. 166 OF THE 1934 ACT AND IN 1936 AMENDED (T.D.
4629) SO AS TO REST ON SEC. 22(A) ALSO, SINCE THE TAX IN QUESTION AROSE
PRIOR TO THAT AMENDMENT. 

FN2  SEE PAUL, THE BACKGROUND OF THE REVENUE ACT OF 1937, 5 UNIV. 
CHIC.  L. REV. 41. 

FN3  AS TO THE DISADVANTAGE OF A SPECIFIC STATUTORY FORMULA OVER MORE
GENERALIZED TREATMENT SEE VOL. I, REPORT, INCOME TAX CODIFICATION
COMMITTEE (1936), A COMMITTEE APPOINTED BY THE CHANCELLOR OF THE
EXCHEQUER IN 1927.  IN DISCUSSING REVOCABLE SETTLEMENTS THE COMMITTEE
STATED, P. 298: 

"THIS AND THE THREE FOLLOWING CLAUSES REPRODUCE SECTION 20 OF THE
FINANCE ACT, 1922, AN ENACTMENT WHICH HAS BEEN THE SUBJECT OF MUCH
LITIGATION, IS UNSATISFACTORY IN MANY RESPECTS, AND IS PLAINLY
INADEQUATE TO FULFIL THE APPARENT INTENTION TO PREVENT AVOIDANCE OF
LIABILITY TO TAX BY REVOCABLE DISPOSITIONS OF INCOME OR OTHER DEVICES. 
WE THINK THE MATTER ONE WHICH IS WORTHY OF THE ATTENTION OF
PARLIAMENT." 

MR. JUSTICE ROBERTS, DISSENTING: 

I THINK THE JUDGMENT SHOULD BE AFFIRMED. 

THE DECISION OF THE COURT DISREGARDS THE FUNDAMENTAL PRINCIPLE THAT
LEGISLATION IS NOT THE FUNCTION OF THE JUDICIARY BUT OF CONGRESS. 

IN EVERY REVENUE ACT FROM THAT OF 1916 TO THE ONE NOW IN FORCE A
DISTINCTION HAS BEEN MADE BETWEEN INCOME OF INDIVIDUALS AND INCOME FROM
PROPERTY HELD IN TRUST.  FN1  IT HAS BEEN THE PRACTICE TO DEFINE INCOME
OF INDIVIDUALS, AND, IN SEPARATE SECTIONS, UNDER THE HEADING "ESTATES
AND TRUSTS," TO PROVIDE THAT THE TAX IMPOSED UPON INDIVIDUALS SHALL
APPLY TO THE INCOME OF ESTATES OR OF ANY KIND OF PROPERTY HELD IN
TRUST.  A TRUST IS A SEPARATE TAXABLE ENTITY.  THE TRUST HERE IN
QUESTION IS A TRUE TRUST.    WHILE THE EARLIER ACTS WERE IN FORCE
CREATORS OF TRUSTS RESERVED POWER TO REPOSSESS THE TRUST CORPUS.  IT
BECAME COMMON ALSO TO ESTABLISH TRUSTS UNDER WHICH, AT THE GRANTOR'S
DISCRETION, ALL OR PART OF THE INCOME MIGHT BE PAID TO HIM, AND TO SET
UP TRUSTS TO PAY LIFE INSURANCE PREMIUMS UPON POLICIES ON THE GRANTOR'S
LIFE.  THE SITUATION WAS ANALOGOUS TO THAT NOW PRESENTED.  THE
TREASURY, INSTEAD OF ASKING THIS COURT, UNDER THE GUISE OF
CONSTRUCTION, TO AMEND THE ACT, WENT TO CONGRESS FOR NEW LEGISLATION. 
CONGRESS PROVIDED, BY SEC. 219(G)(H) OF THE REVENUE ACT OF 1924, THAT
IF THE GRANTOR SET UP SUCH A LIFE INSURANCE TRUST, OR ONE UNDER WHICH
HE COULD DIRECT THE PAYMENT OF THE TRUST INCOME TO HIMSELF, OR HAD THE
POWER TO REVEST THE PRINCIPAL IN HIMSELF DURING ANY TAXABLE YEAR, THE
INCOME OF THE TRUST, FOR THE TAXABLE YEAR, WAS TO BE TREATED AS HIS. 
FN2 

AFTER THE ADOPTION OF THESE AMENDMENTS TAXPAYERS RESORTED TO THE
CREATION OF REVOCABLE TRUSTS WITH A PROVISION THAT MORE THAN A YEAR'S
NOTICE OF REVOCATION SHOULD BE NECESSARY TO TERMINATION.  SUCH A TRUST
WAS HELD NOT TO BE WITHIN THE TERMS OF SEC. 219(G) OF THE REVENUE ACT
OF 1924, BECAUSE NOT REVOCABLE WITHIN THE TAXABLE YEAR.  FN3 

AGAIN, WITHOUT SEEKING AMENDMENT IN THE GUISE OF CONSTRUCTION FROM
THIS COURT, THE TREASURY APPLIED TO CONGRESS, WHICH MET THE SITUATION
BY ADOPTING SEC. 166 OF THE REVENUE ACT OF 1934, WHICH PROVIDED THAT,
IN THE CASE OF A TRUST UNDER WHICH THE GRANTOR RESERVED THE POWER AT
ANY TIME TO REVEST THE CORPUS IN HIMSELF, THE INCOME OF THE TRUST
SHOULD BE CONSIDERED THAT OF THE GRANTOR. 

THE TREASURY HAD ASKED THAT THERE SHOULD ALSO BE INCLUDED IN THAT ACT
A PROVISION TAXING TO THE GRANTOR INCOME FROM SHORT TERM TRUSTS.  AFTER
THE HOUSE WAYS AND MEANS COMMITTEE HAD RENDERED A REPORT ON THE
PROPOSED BILL, THE TREASURY, UPON EXAMINATION OF THE REPORT, SUBMITTED
A STATEMENT TO THE COMMITTEE CONTAINING RECOMMENDATIONS FOR ADDITIONAL
PROVISIONS; AMONGST OTHERS, THE FOLLOWING:  "(6)  THE INCOME FROM SHORT
TERM TRUSTS AND TRUSTS WHICH ARE REVOCABLE BY THE CREATOR AT THE
EXPIRATION OF A SHORT PERIOD AFTER NOTICE BY HIM SHOULD BE MADE TAXABLE
TO THE CREATOR OF THE TRUST."  CONGRESS ADOPTED AN AMENDMENT TO COVER
THE ONE SITUATION BUT DID NOT ACCEPT THE TREASURY'S RECOMMENDATION AS
TO THE OTHER.  FN4  THE STATUTE, AS BEFORE, CLEARLY PROVIDED THAT THE
INCOME FROM A SHORT TERM IRREVOCABLE TRUST WAS TAXABLE TO THE TRUST, OR
THE BENEFICIARY, AND NOT TO THE GRANTOR. 

THE REGULATIONS UNDER SEC. 166 OF THE ACT OF 1932 CONTAINED NO
SUGGESTION THAT TERM TRUSTS WERE TAXABLE TO THE CREATOR THOUGH, IF THE
PETITIONER IS RIGHT, THEY WOULD BE EQUALLY SO UNDER THAT ACT AS UNDER
LATER ONES.  THUS THOUGH THE TREASURY REALIZED THAT IRREVOCABLE SHORT
TERM TRUSTS DID NOT FALL WITHIN THE SCOPE OF SEC. 166, INSTEAD OF GOING
TO CONGRESS FOR AMENDMENT OF THE LAW IT COMES HERE WITH A PLEA FOR
INTERPRETATION WHICH IS IN EFFECT SUCH AMENDMENT. 

ITS CLAIM, IN SUPPORT OF THIS EFFORT, THAT A REVERSIONARY INTEREST IN
THE GRANTOR IS A "POWER TO REVEST" THE CORPUS WITHIN THE MEANING OF
SEC. 166 SO AS TO RENDER THE INCOME TAXABLE TO THE GRANTOR IS PLAINLY
UNTENABLE.  FN5  THAT THEORY WAS FIRST ADVANCED IN A REGULATION ISSUED
UNDER THE 1934 ACT,  FN6  BUT WAS ABANDONED MARCH 7, 1936, WHEN THE
REGULATION WAS REVISED TO READ SUBSTANTIALLY IN ITS PRESENT FORM.  FN7
THE BOARD OF TAX APPEALS HELD A POSSIBILITY OF REVERTER IS NOT THE
"POWER TO REVEST" DESCRIBED IN SEC. 166.  FN8  THE PETITIONER
ACQUIESCED IN THE DECISION.  FN9  THE TREASURY THEREAFTER RULED THAT A
GRANTOR WAS NOT TAXABLE ON THE INCOME OF A TRUST WHERE HE HAD RETAINED
A REVERSIONARY INTEREST.  FN10 

I THINK IT CLEAR THAT THE ADMINISTRATIVE INTERPRETATION HAS NOT BEEN
CONSISTENT AND THAT REENACTMENT OF SEC. 166 IS, THEREFORE, NOT A
RATIFICATION BY CONGRESS OF THE PRESENT CONSTRUCTION. 

THE REVISED REGULATIONS INDICATING THAT IN SOME CIRCUMSTANCES THE
SEPARATE TAXABILITY OF THE TRUST MAY BE IGNORED ARE SAID TO REST ON
SEC. 166, AND ALSO ON SEC. 22(A) WHICH DEFINES INCOME.  THE REGULATION
IS NOT ONLY WITHOUT SUPPORT IN THE STATUTE BUT CONTRARY TO THE ENTIRE
STATUTORY SCHEME AND, AS IT NOW STANDS, IS VAGUE AND MEANINGLESS, AS
RESPECTS THE TAXABILITY TO THE GRANTOR OF INCOME FROM AN IRREVOCABLE
TERM TRUST. 

TO CONSTRUE EITHER SEC. 166 OR SEC. 22(A) OF THE STATUTE AS
JUSTIFYING TAXATION OF THE INCOME TO RESPONDENT IN THIS CASE IS, IN MY
JUDGMENT, TO WRITE INTO THE STATUTE WHAT IS NOT THERE AND WHAT CONGRESS
HAS OMITTED TO PLACE THERE. 

IF JUDGES WERE MEMBERS OF THE LEGISLATURE THEY MIGHT WELL VOTE TO
AMEND THE ACT SO AS TO TAX SUCH INCOME IN ORDER TO FRUSTRATE AVOIDANCE
OF TAX BUT, AS JUDGES, THEY EXERCISE A VERY DIFFERENT FUNCTION.  THEY
OUGHT TO READ THE ACT TO COVER NOTHING MORE THAN CONGRESS HAS
SPECIFIED.  COURTS OUGHT NOT TO STOP LOOPHOLES IN AN ACT AT THE BEHEST
OF THE GOVERNMENT, NOR RELIEVE FROM WHAT THEY DEEM A HARSH PROVISION
PLAINLY STATED, AT THE BEHEST OF THE TAXPAYER.  RELIEF IN EITHER CASE
SHOULD BE SOUGHT IN ANOTHER QUARTER. 

NO SUCH DICTUM AS THAT CONGRESS HAS IN THE INCOME TAX LAW ATTEMPTED
TO EXERCISE ITS POWER TO THE FULLEST EXTENT WILL JUSTIFY THE EXTENSION
OF A PLAIN PROVISION TO AN OBJECT OF TAXATION NOT EMBRACED WITHIN IT.
IF THE CONTRARY WERE TRUE, THE COURTS MIGHT SUPPLY WHATEVER THEY
CONSIDERED A DEFICIENCY IN THE SWEEP OF A TAXING ACT.  I CANNOT
CONSTRUE THE COURT'S OPINION AS ATTEMPTING LESS. 

THE FACT THAT THE PETITIONER IS IN TRUTH ASKING US TO LEGISLATE IN
THIS CASE IS EVIDENT FROM THE FORM OF THE EXISTING REGULATION AND FROM
THE ARGUMENT PRESENTED.  THE IMPORTANT PORTION OF THE REGULATION READS
AS FOLLOWS:  "IN DETERMINING WHETHER THE GRANTOR IS IN SUBSTANCE THE
OWNER OF THE CORPUS, THE ACT HAS ITS OWN STANDARD, WHICH IS A
SUBSTANTIAL ONE, DEPENDENT NEITHER ON THE NICETIES OF THE PARTICULAR
CONVEYANCING DEVICE USED, NOR ON THE TECHNICAL DESCRIPTION WHICH THE
LAW OF PROPERTY GIVES TO THE ESTATE OR INTEREST TRANSFERRED TO THE
TRUSTEES OR BENEFICIARIES OF THE TRUST.  IN THAT DETERMINATION, AMONG
THE MATERIAL FACTORS ARE:  THE FACT THAT THE CORPUS IS TO BE RETURNED
TO THE GRANTOR AFTER A SPECIFIC TERM; THE FACT THAT THE CORPUS IS OR
MAY BE ADMINISTERED IN THE INTEREST OF THE GRANTOR; THE FACT THAT THE
ANTICIPATED INCOME IS BEING APPROPRIATED IN ADVANCE FOR THE CUSTOMARY
EXPENDITURES OF THE GRANTOR OR THOSE WHICH HE WOULD ORDINARILY AND
NATURALLY MAKE; AND ANY OTHER CIRCUMSTANCES BEARING ON THE IMPERMANENCE
AND INDEFINITENESS WITH WHICH THE GRANTOR HAS PARTED WITH THE
SUBSTANTIAL INCIDENTS OF OWNERSHIP IN THE CORPUS." 

IN HIS BRIEF THE PETITIONER SAYS: 

"ON THE OTHER HAND, THE INCOME OF A LONG TERM IRREVOCABLE TRUST WHICH
COMMITTED THE POSSESSION AND CONTROL OF THE CORPUS TO AN INDEPENDENT
TRUSTEE WOULD NOT LIKELY BE TAXED TO THE SETTLOR MERELY BECAUSE OF A
REVERSIONARY INTEREST.  THE QUESTION HERE, AS IN MANY OTHER TAX
PROBLEMS, IS SIMPLY ONE OF DEGREE.  THE GRANTOR'S LIABILITY TO TAX MUST
DEPEND UPON WHETHER HE RETAINS SO MANY OF THE ATTRIBUTES OF OWNERSHIP
AS TO REQUIRE THAT HE BE TREATED AS THE OWNER FOR TAX PURPOSES, OR
WHETHER HE HAS GIVEN UP THE SUBSTANCE OF HIS DOMINION AND CONTROL OVER
THE TRUST PROPERTY. 

"UNDER THESE CIRCUMSTANCES, THE QUESTION OF PRECISELY WHERE THE LINE
SHOULD BE DRAWN BETWEEN THOSE IRREVOCABLE TRUSTS WHICH DEPRIVE THE
GRANTOR OF COMMAND OVER THE TRUST PROPERTY AND THOSE WHICH LEAVE IN HIM
THE PRACTICAL EQUIVALENT OF OWNERSHIP IS, IN OUR VIEW, A MATTER
PECULIARLY FOR THE JUDGMENT OF THE AGENCY CHARGED WITH THE
ADMINISTRATION OF THE TAX LAW." 

IT IS NOT OUR FUNCTION TO DRAW ANY SUCH LINE AS THE ARGUMENT
SUGGESTS.  THAT IS THE PREROGATIVE OF CONGRESS.  AS FAR BACK AS 1922,
PARLIAMENT AMENDED THE BRITISH INCOME TAX ACT, SO THAT THERE WOULD BE
NO DISPUTE AS TO WHAT SHORT TERM TRUST INCOME SHOULD BE TAXABLE TO THE
GRANTOR, BY MAKING TAXABLE TO HIM ANY INCOME WHICH, BY VIRTUE OF ANY
DISPOSITION, IS PAYABLE TO, OR APPLICABLE FOR THE BENEFIT OF, ANY OTHER
PERSON FOR A PERIOD WHICH CANNOT EXCEED SIX YEARS.  FN11 

IF SOME SHORT TERM TRUSTS ARE TO BE TREATED AS NONEXISTENT FOR INCOME
TAX PURPOSES, IT IS FOR CONGRESS TO SPECIFY THEM. 

FN1  REVENUE ACT OF 1916, 39 STAT. 756, SEC. 2(A)(B); REVENUE ACT OF
1918, 40 STAT. 1057, SEC. 213(A), SEC. 219; REVENUE ACT OF 1921, 42
STAT. 227, SEC. 213(A), SEC. 219; REVENUE ACT OF 1924, 43 STAT. 253,
SEC. 213(A), SEC. 219; REVENUE ACT OF 1926, 44 STAT. 9, SEC. 213(A),
SEC. 219; REVENUE ACT OF 1928, 45 STAT. 791, SEC. 22(A), SECS. 161 TO
169, INCL.; REVENUE ACT OF 1932, 47 STAT. 169, SEC. 22(A), SECS. 161 TO
169 INCL.; REVENUE ACT OF 1934, 48 STAT. 680, SEC. 22(A), SECS. 161 TO
167, INCL.; REVENUE ACT OF 1936, 49 STAT. 1648, SEC. 22(A), SECS. 161
TO 167, INCL. 

FN2  SEE CORLISS V. BOWERS, 281 U.S. 376; BURNET V. WELLS, 289 U.S.
670. 

FN3  LEWIS V. WHITE, 56 F.2D 390; 61 F.2D 1046; LANGLEY V.
COMMISSIONER, 61 F.2D 796; COMMISSIONER V. GROSVENOR, 85 F.2D 2; FABER
V. UNITED STATES, 1 F.SUPP.  859. 

FN4  HEARINGS ON H.R. 7835, 73D CONG., 2D SESS., P. 151; H. REP. NO.
1385, 73D CONG., 2D SESS., P. 24. 

FN5  UNITED STATES V. FIRST NATIONAL BANK, 74 F.2D 360; CORNING V.
COMMISSIONER, 104 F.2D 329. 

FN6  REGULATIONS 86, ART. 166-1. 

FN7  T.D. 4629, C.B. XV-1, 140. 

FN8  DOWNS V. COMMISSIONER, 36 B.T.A. 1129. 

FN9  C.B. 1938-1, P. 9. 

FN10  I.T. 3238, C.B. XVII-2, P. 204. 

FN11  12 AND 13 GEO. 5, CH. 17, SEC. 20, L.R. STATUTES, VOL. 60, P.
373.  THOUGH THE PROVISION HAS BEEN THOUGHT UNSATISFACTORY, THE
SUGGESTION MADE FOR IMPROVEMENT IS THAT THE MATTER BE BROUGHT BEFORE
PARLIAMENT FOR ACTION. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS OPINION. 
..END :






















HELVERING V. WOOD, 309 U.S. 344 


NO. 384.  ARGUED FEBRUARY 5, 1940.  - DECIDED FEBRUARY 26, 1940.  - 104
F.2D 1013, AFFIRMED. 


1.  SECTION 166 OF THE REVENUE ACT OF 1934, PROVIDING THAT THE INCOME
FROM A TRUST SHALL BE TAXABLE TO THE GRANTOR WHERE "AT ANY TIME THE
POWER TO REVEST IN THE GRANTOR TITLE TO ANY PART OF THE CORPUS OF THE
TRUST IS VESTED" IN HIM IS INAPPLICABLE IN THE ABSENCE OF SUCH POWER,
THOUGH THE TERM OF THE TRUST BE SHORT AND THE CORPUS WILL SOON REVERT
TO THE GRANTOR.  A MERE REVERSION IS NOT A POWER TO REVEST WITHIN THE
MEANING OF SEC. 166.  P. 347. 

2.  HAVING INVOKED BEFORE THE BOARD OF TAX APPEALS AND THE COURT
BELOW THE COMPARATIVELY NARROW PROVISIONS OF SEC. 166 OF THE REVENUE
ACT OF 1934, TO SUSTAIN THE TAX IN QUESTION, AND HAVING EXPRESSLY
WAIVED RELIANCE ON ANY OTHER SECTION, THE COMMISSIONER OF INTERNAL
REVENUE MAY NOT RESORT HERE FOR THE FIRST TIME TO THE BROADER
PROVISIONS OF SEC. 22(A).  P. 348. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. WOOD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 308 U.S. 543, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS (37 B.T.A. 1065), WHICH REVERSED A
DETERMINATION OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE, LIKE HELVERING V. CLIFFORD, ANTE, P. 331, IS HERE ON
CERTIORARI, THE PROBLEMS IN THE TWO CASES BEING THE SAME IN CERTAIN
ESSENTIAL RESPECTS.  IN APRIL 1931 RESPONDENT, WHO OWNED TWENTY-FIVE
SHARES OF STOCK OF BOOK-OF-THE-MONTH CLUB, INC., MADE HIMSELF TRUSTEE
OF THOSE SHARES UNDER AN AGREEMENT WHICH WAS TO EXPIRE IN THREE YEARS
FN1  OR EARLIER ON THE DEATH OF EITHER HIM OR HIS WIFE.  BY THE TRUST
HE WAS TO "HOLD, INVEST, AND REINVEST" THE SHARES, TO "COLLECT THE NET
INCOME THEREFROM" AND TO PAY IT TO HIS WIFE.  HE HAD THE POWER TO
"RETAIN" THE STOCK OR TO "SELL" IT OR "ANY PART THEREOF" AT SUCH "TIME
AND ON SUCH TERMS" AS HE SHOULD "DEEM PROPER."  FN2  IT WAS PROVIDED
THAT HIS POWER OF INVESTMENT OR REINVESTMENT OF "ANY OF THE PROPERTY OR
MONEYS HELD IN TRUST" WAS NOT TO BE RESTRICTED BY ANY LAW GOVERNING
INVESTMENTS BY TRUSTEES.  HE WAS ALSO GIVEN POWER TO "FIX AND
DETERMINE" THE VALUE OF THE PROPERTY FOR ALL PURPOSES OF THE TRUST AND
TO DETERMINE "WHETHER ANY PROPERTY OR MONEY RECEIVED OR HELD IN TRUST
SHALL BE TREATED AS CAPITAL OR INCOME, AND THE MODE IN WHICH ANY
EXPENSE INCIDENTAL TO THE EXECUTION OF THE TRUST IS TO BE BORNE AS
BETWEEN CAPITAL AND INCOME," WITH THE PROVISO, HOWEVER, THAT STOCK
DIVIDENDS AND SUBSCRIPTION RIGHTS SHOULD BE TREATED AS PRINCIPAL.  HE
WAS PROHIBITED FROM RECEIVING ANY COMMISSIONS WITH RESPECT TO PRINCIPAL
OR INCOME; AND AN EXCULPATORY CLAUSE PURPORTED TO PROTECT HIM AGAINST
ANY LOSS EXCEPT THAT OCCASIONED BY HIS WILFUL MISCONDUCT.  HE HAD THE
POWER TO APPOINT A SUBSTITUTE TRUSTEE.  FN3  ON TERMINATION OF THE
TRUST "ALL PROPERTY THEN HELD IN TRUST" WAS TO GO TO HIM.  THE TRUST
CONTAINED NO POWER OF REVOCATION NOR ANY POWER TO REVEST IN THE GRANTOR
AT ANY TIME, PRIOR TO THE DATE OF TERMINATION, TITLE TO ANY PART OF THE
CORPUS. 

DURING 1934 RESPONDENT PAID OVER TO HIS WIFE $8,750, WHICH WAS THE
ENTIRE INCOME FROM THE TRUST FOR THAT YEAR.  SHE INCLUDED IT IN HER
INCOME TAX RETURN.  THE COMMISSIONER, BEING OF THE OPINION THAT THE
INCOME WAS TAXABLE TO RESPONDENT, DETERMINED A DEFICIENCY IN HIS 1934
RETURN.  RESPONDENT APPEALED TO THE BOARD OF TAX APPEALS WHICH HELD
THAT PETITIONER WAS IN ERROR (37 B.T.A. 1065).  THE CIRCUIT COURT OF
APPEALS AFFIRMED (104 F.2D 1013) ON THE AUTHORITY OF UNITED STATES V.
FIRST NATIONAL BANK, 74 F.2D 360. 

PETITIONER MAINTAINS THAT THE TRUST INCOME IS TAXABLE TO RESPONDENT
EITHER UNDER SEC. 166 OR SEC. 22(A) OF THE REVENUE ACT OF 1934(48 STAT.
680) OR BOTH. 

BY SEC. 166 THE INCOME FROM A TRUST IS TAXABLE TO THE GRANTOR WHERE
"AT ANY TIME THE POWER TO REVEST IN THE GRANTOR TITLE TO ANY PART OF
THE CORPUS OF THE TRUST IS VESTED" IN HIM OR IN ANY PERSON "NOT HAVING
A SUBSTANTIAL ADVERSE INTEREST IN THE DISPOSITION OF SUCH PART OF THE
CORPUS OR THE INCOME THEREFROM."  FN4  PETITIONER HAS NOT UNDERTAKEN TO
ESTABLISH THAT UNDER NEW YORK LAW, WHICH GOVERNS THIS TRUST, RESPONDENT
HAD THE POWER TO REVOKE IT PRIOR TO THE END OF THE TERM.  BUT IN HIS
CONTENTION THAT THE TRUST HERE INVOLVED IS COVERED BY SEC. 166,
PETITIONER POINTS OUT THAT THERE IS NO PRACTICAL DIFFERENCE BETWEEN A
REVOCABLE TRUST AND ONE CERTAIN TO BE TERMINATED SOON.  AND HE ARGUES
THAT IT WOULD NOT BE SENSIBLE TO IMPUTE TO CONGRESS A PURPOSE TO IMPOSE
THE TAX WHEN THE GRANTOR HAS AN EXECUTORY POWER TO REVEST TITLE IN
HIMSELF BUT TO WITHHOLD THE TAX WHEN THE GRANTOR, BY PROVISIONS IN THE
TRUST DEED, HAS ALREADY EXERCISED THAT POWER. 

OUR DIFFICULTY LIES NOT IN AN INABILITY TO SEE THE SIMILARITY OF
THOSE SITUATIONS BUT IN BEING ABLE TO SAY THAT CONGRESS TREATED THEM
THE SAME UNDER SEC. 166.  A POWER TO REVEST OR REVOKE MAY IN ECONOMIC
FACT BE THE EQUIVALENT OF A REVERSION.  BUT AT LEAST IN THE LAW OF
ESTATES THEY ARE BY NO MEANS SYNONYMOUS.  FOR, GENERALLY SPEAKING, THE
POWER TO REVEST OR TO REVOKE AN EXISTING ESTATE IS DISCRETIONARY WITH
THE DONOR; A REVERSION IS THE RESIDUE LEFT IN THE GRANTOR ON
DETERMINATION OF A PARTICULAR ESTATE.  SEE TIFFANY, REAL PROPERTY (2ND
ED.)  SEC.  129 ET SEQ., SEC. 316 ET SEQ. CONGRESS SEEMS TO HAVE DRAWN
SEC. 166 WITH THAT DISTINCTION IN MIND, FOR MERE REVERSIONS ARE NOT
SPECIFICALLY MENTIONED.  WHETHER AS A MATTER OF POLICY SUCH NICE
DISTINCTIONS SHOULD BE PERPETUATED IN A TAX LAW BY SELECTING ONE TYPE
OF TRUST BUT NOT THE OTHER FOR SPECIAL TREATMENT IS NOT FOR US.  WE
HAVE ONLY THE RESPONSIBILITY OF CARRYING OUT THE CONGRESSIONAL
MANDATE.  AND WHERE CONGRESS HAS DRAWN A DISTINCTION, HOWEVER NICE, IT
IS NOT PROPER FOR US TO OBLITERATE IT.  THAT SEEMS TO US TO BE THE CASE
HERE.  WHETHER WISELY OR NOT, CONGRESS CONFINED SEC. 166 TO TRUSTS
WHERE THERE WAS A "POWER TO REVEST."  THE PROBLEM OF INTERPRETATION
UNDER SEC. 166 IS THEREFORE QUITE DIFFERENT FROM THAT UNDER SEC.
22(A).  THE FORMER IS NARROWLY CONFINED TO A SPECIAL CLASS; THE LATTER
BY BROAD, SWEEPING LANGUAGE IS ALL INCLUSIVE.  HELVERING V. CLIFFORD,
SUPRA. ACCORDINGLY, THE WIDE RANGE FOR DEFINITION AND SPECIFICATION
UNDER THE LATTER IS LACKING UNDER SEC. 166.  AND SO FAR AS SEC. 166 IS
CONCERNED NO APPARENT OR LURKING AMBIGUITY REQUIRES OR PERMITS US TO
DIVINE A BROADER PURPOSE THAN THAT EXPRESSED.  THE LEGISLATIVE HISTORY
CORROBORATES THIS CONCLUSION.  WHEN THE 1934 ACT WAS BEFORE THE HOUSE
COMMITTEE, THE TREASURY RECOMMENDED THAT INCOME FROM SHORT TERM TRUSTS
AND FROM REVOCABLE TRUSTS SHOULD BE TAXABLE TO THE CREATOR.  FN5 THE
CONGRESS ADOPTED THE LATTER  FN6  BY AN APPROPRIATE AMENDMENT TO SEC.
166; BUT IT DID NOT SELECT THE FORMER FOR SPECIAL TREATMENT.  WHEN SUCH
CLEAR CHOICE OF IDEAS HAS BEEN MADE IN THE DRAFTING OF A SPECIFIC
PROVISION OF THE LAW, ITS LANGUAGE MUST BE TAKEN AT ITS FACE VALUE. 
SEC. 166 IS THEREFORE NOT APPLICABLE TO THIS TRUST SINCE RESPONDENT IS
GIVEN NO POWER TO RECALL THE CORPUS.  HE OR HIS ESTATE GETS IT AT THE
END OF THE TERM, ON THE DEATH OF HIS WIFE, OR ON HIS OWN DEATH -
WHICHEVER IS THE EARLIEST. 

FOR A WHOLLY DIFFERENT REASON, PETITIONER'S ARGUMENT BASED ON SEC.
22(A) MUST FAIL.  THE BOARD OF TAX APPEALS PURPORTED TO PLACE ITS
DECISION SOLELY ON SEC. 166 AND SEC. 167 OF THE ACT.  PETITIONER IN HIS
ASSIGNMENTS OF ERROR SPECIFICALLY MENTIONED ONLY SEC. 166 AND SEC. 167,
NOT SEC. 22(A).  IN HIS BRIEF BEFORE THE CIRCUIT COURT OF APPEALS
PETITIONER EXPRESSLY WAIVED RELIANCE UPON ANY SECTION OTHER THAN SEC.
166.  THOUGH PETITIONER IN HIS PETITION FOR CERTIORARI RELIED ON SEC.
22(A), RESPONDENT IN OPPOSITION THERETO TOOK THE POSITION THAT THAT
POINT WAS NOT AVAILABLE TO PETITIONER HERE AS IT WAS NOT RAISED BELOW. 
IN VIEW OF THESE FACTS, ESPECIALLY THE EXPRESS WAIVER BELOW, WE DO NOT
THINK THAT PETITIONER SHOULD BE ALLOWED TO ADD HERE FOR THE FIRST TIME
ANOTHER STRING TO HIS BOW.  AS WE HAVE INDICATED, THE ISSUES UNDER SEC.
166 AND SEC. 22(A) ARE NOT COTERMINOUS.  THOUGH BOTH DEAL WITH CONCEPTS
OF OWNERSHIP, THE RANGE OF INQUIRY UNDER THE LATTER IS BROAD, UNDER THE
FORMER CONFINED.  TO OPEN HERE FOR THE FIRST TIME AND IN FACE OF THE
EXPRESS DISCLAIMER AN INQUIRY INTO THE BROADER FIELD IS NOT ONLY TO
DEPRIVE THIS COURT OF THE ASSISTANCE OF A DECISION BELOW BUT TO PERMIT
A SHIFT TO GROUND WHICH THE TAXPAYER HAD EVERY REASON TO THINK WAS
ABANDONED IN THE EARLIER STAGES OF THIS LITIGATION.  FN7  SEE BURNET V.
COMMONWEALTH IMPROVEMENT CO., 287 U.S. 415, 418.  IT IS NOT APPARENT
WHY A LESS STRICT RULE IS NECESSARY IN ORDER ADEQUATELY TO PROTECT THE
REVENUE.  AFFIRMED. 

FN1  IN 1932 THE TERM WAS EXTENDED TO FIVE YEARS FROM APRIL, 1931. 

FN2  HIS RIGHT TO SELL WAS SUBJECT TO A COLLATERAL AGREEMENT, NOT
MATERIAL HERE, WITH ONE SCHERMAN, GRANTING SCHERMAN A PREEMPTIVE RIGHT
IN CASE RESPONDENT DECIDED TO SELL. 

FN3  NO SUBSTITUTE TRUSTEE WAS, HOWEVER, APPOINTED, RESPONDENT
CONTINUING TO ACT AS TRUSTEE UNTIL TERMINATION OF THE TRUST IN 1936. 

FN4  SEC. 166 READS IN FULL: 

"WHERE AT ANY TIME THE POWER TO REVEST IN THE GRANTOR TITLE TO ANY
PART OF THE CORPUS OF THE TRUST IS VESTED - 

"(1)  IN THE GRANTOR, EITHER ALONE OR IN CONJUNCTION WITH ANY PERSON
NOT HAVING A SUBSTANTIAL ADVERSE INTEREST IN THE DISPOSITION OF SUCH
PART OF THE CORPUS OR THE INCOME THEREFROM, OR 

"(2)  IN ANY PERSON NOT HAVING A SUBSTANTIAL ADVERSE INTEREST IN THE
DISPOSITION OF SUCH PART OF THE CORPUS OR THE INCOME THEREFROM, THEN
THE INCOME OF SUCH PART OF THE TRUST SHALL BE INCLUDED IN COMPUTING THE
NET INCOME OF THE GRANTOR." 

FN5  REVENUE REVISION, 1934, HEARINGS BEFORE THE COMMITTEE ON WAYS &
MEANS, H.R. 73RD CONG., 2ND SESS., P. 151.  THE RECOMMENDATION READ:
"THE INCOME FROM SHORT-TERM TRUSTS AND TRUSTS WHICH ARE REVOCABLE BY
THE CREATOR AT THE EXPIRATION OF A SHORT PERIOD AFTER NOTICE BY HIM
SHOULD BE MADE TAXABLE TO THE CREATOR OF THE TRUST." 

FN6  CONFERENCE REP. NO. 1385, H.R. 73RD CONG., 2ND SESS., P. 24: 

"UNDER EXISTING LAW, THE INCOME FROM A REVOCABLE TRUST IS TAXABLE TO
THE GRANTOR ONLY WHERE SUCH GRANTOR (OR A PERSON NOT HAVING A
SUBSTANTIAL ADVERSE INTEREST IN THE TRUST) HAS THE POWER WITHIN THE
TAXABLE YEAR TO REVEST IN THE GRANTOR TITLE TO ANY PART OF THE CORPUS
OF THE TRUST.  UNDER THE TERMS OF SOME TRUSTS, THE POWER TO REVOKE
CANNOT BE EXERCISED WITHIN THE TAXABLE YEAR, EXCEPT UPON ADVANCE NOTICE
DELIVERED TO THE TRUSTEE DURING THE PRECEDING TAXABLE YEAR.  IF THIS
NOTICE IS NOT GIVEN WITHIN THE PRECEDING TAXABLE YEAR, THE COURTS HAVE
HELD THAT THE GRANTOR IS NOT REQUIRED UNDER EXISTING LAW TO INCLUDE THE
TRUST INCOME FOR THE TAXABLE YEAR IN HIS RETURN.  THE SENATE AMENDMENTS
REQUIRE THE INCOME FROM TRUSTS OF THIS TYPE TO BE REPORTED BY THE
GRANTOR.  THE HOUSE RECEDES." 

FN7  ART. 166-1 OF TREASURY REGULATIONS 86, ORIGINALLY PROMULGATED
UNDER SEC. 166, WAS NOT PROMULGATED UNDER SEC. 22(A) UNTIL 1936(T.D.
4629), TWO YEARS AFTER THE TAX LIABILITY HERE IN ISSUE OCCURRED.  HENCE
WE DO NOT HAVE A CASE OF RELIANCE BY THE GOVERNMENT ON A REGULATION
WHICH DURING THE TAXABLE YEAR IN QUESTION RESTED ON TWO LEGS, ONE OF
WHICH WAS SEC. 22(A). 

MR. JUSTICE ROBERTS CONCURS IN THE RESULT. 
..END :







MCCARROLL V. DIXIE LINES, 309 U.S. 176 


NO. 138.  ARGUED DECEMBER 14, 1939.  - DECIDED FEBRUARY 12, 1940.  - 101
F.2D 572, AFFIRMED. 


A STATE TAX ALLOCATED TO HIGHWAY PURPOSES AND IMPOSED ON EACH GALLON
OF GASOLINE, ABOVE TWENTY, BROUGHT INTO THE STATE BY ANY MOTOR VEHICLE
FOR USE AS FUEL IN SUCH VEHICLE, HELD A FORBIDDEN BURDEN ON INTERSTATE
COMMERCE AS APPLIED TO GASOLINE CARRIED BY INTERSTATE MOTOR BUSES
THROUGH THE STATE FOR USE AS FUEL IN THE COURSE OF THEIR INTERSTATE
TRANSPORTATION BEYOND THE STATE LINE.  P. 180. 

IN THE CIRCUMSTANCES, THE IMPOSITION IS NOT COMPENSATION FOR THE
PRIVILEGE OF USING THE STATE HIGHWAYS. 

MCCARROLL, COMMISSIONER OF REVENUES OF ARKANSAS, V. DIXIE GREYHOUND
LINES, INC. 

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

APPEAL FROM A DECREE WHICH REVERSED THE ACTION OF THE DISTRICT COURT
IN DENYING AN INJUNCTION AND IN DISMISSING THE BILL IN A SUIT TO
RESTRAIN THE ENFORCEMENT OF A STATE GASOLINE TAX, 22 F.SUPP.  985, AND
WHICH DIRECTED THAT COURT TO ENTER A DECREE OF INJUNCTION. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

AN ARKANSAS STATUTE  FN1  PROHIBITS ENTRY INTO THE STATE OF ANY
AUTOMOBILE OR TRUCK "CARRYING OVER TWENTY (20) GALLONS OF GASOLINE IN
THE GASOLINE TANK OF SUCH AUTOMOBILE OR TRUCK OR IN AUXILIARY TANKS OF
SAID TRUCKS TO BE USED AS MOTOR FUEL IN SAID TRUCK OR MOTOR VEHICLES
UNTIL THE STATE TAX THEREON (SIX AND ONE-HALF CENTS PER GALLON)  FN2
HAS BEEN PAID." 

APPELLEE, A DELAWARE CORPORATION, OPERATES PASSENGER BUSSES PROPELLED
BY GASOLINE MOTORS, FROM MEMPHIS, TENNESSEE ACROSS ARKANSAS TO ST.
LOUIS, MISSOURI, AND IN REVERSE.  THE ROUTE BETWEEN THESE POINTS
APPROXIMATES 342 MILES - 3 IN TENNESSEE, 78 IN ARKANSAS, 261 IN
MISSOURI.  LIKE BUSSES PLY BETWEEN MEMPHIS AND POINTS WITHIN AND BEYOND
ARKANSAS, AND IN REVERSE.  IT IS ONLY NECESSARY NOW TO CONSIDER THE
FACTS CONNECTED WITH OPERATION OF THE MEMPHIS-ST. LOUIS LINE.  THEY ARE
TYPICAL. 

EACH BUS CONSUMES ABOUT ONE GALLON OF GASOLINE FOR EVERY FIVE MILES
TRAVERSED.  SIXTY-EIGHT GALLONS ARE REQUIRED FOR THE JOURNEY FROM
MEMPHIS TO ST. LOUIS - UNDER ONE IN TENNESSEE, SIXTEEN IN ARKANSAS,
FIFTY-ONE IN MISSOURI.  THE PRACTICE IS TO PLACE IN THE BUS TANK AT
MEMPHIS THE SIXTY-EIGHT GALLONS OF GASOLINE COMMONLY REQUIRED FOR THE
TRIP; ALSO TEN MORE TO MEET ANY EMERGENCY.  THUS UPON ARRIVAL AT THE
ARKANSAS LINE THE TANK CONTAINS SOME SEVENTY-SEVEN GALLONS OF WHICH
SIXTEEN PROBABLY WILL BE CONSUMED WITHIN THAT STATE.  AS A CONDITION
PRECEDENT TO ENTRY THERE, APPELLANT - REVENUE OFFICER OF THE STATE -
DEMANDS THAT EACH BUS PAY SIX AND ONE-HALF CENTS UPON EVERY GALLON OF
THIS GASOLINE ABOVE TWENTY, AND THREATENS ENFORCEMENT. 

BY A BILL IN THE DISTRICT COURT, APPELLEE UNSUCCESSFULLY SOUGHT AN
INJUNCTION AGAINST THIS THREATENED ACTION.  THE CIRCUIT COURT OF
APPEALS EIGHTH CIRCUIT TOOK A DIFFERENT VIEW. 

AFTER ACCEPTING AS CORRECT THE RULING IN SPARLING V. REFUNDING BOARD,
189 ARK. 189, 199; 71 S.W.2D 182, 186, THAT THE TAX IMPOSED WAS NOT
UPON PROPERTY BUT ON THE PRIVILEGE OF USING THE HIGHWAYS, AND HAD BEEN
DEFINITELY ALLOCATED TO HIGHWAY PURPOSES, THE LATTER COURT SAID - 

"THE APPELLANT DOES NOT NOW CONTEND THAT THE TAX OF WHICH IT
COMPLAINS MAY NOT BE IMPOSED BY THE STATE OF ARKANSAS WITH RESPECT TO
GASOLINE CONSUMED OR TO BE CONSUMED UPON THE HIGHWAYS OF ARKANSAS, AS
COMPENSATION FOR THE USE OF THE HIGHWAYS, BUT IT DOES CONTEND THAT THAT
STATE MAY NOT IMPOSE A TAX UPON GASOLINE WHICH IS CARRIED IN INTERSTATE
COMMERCE FOR USE IN MISSOURI OR TENNESSEE, BECAUSE THAT WOULD
CONSTITUTE A DIRECT AND UNREASONABLE BURDEN UPON INTERSTATE COMMERCE." 

"REDUCED TO ITS LOWEST POSSIBLE TERMS, THE QUESTION FOR DECISION, WE
THINK, IS WHETHER THE IMPOSITION OF THE TAX UPON GASOLINE CARRIED, FOR
USE IN OTHER STATES, IN THE FUEL TANK OF A MOTOR VEHICLE TRAVELING IN
INTERSTATE COMMERCE CAN BE SUSTAINED.  THAT THE TAX IS A DIRECT BURDEN
ON INTERSTATE COMMERCE, CANNOT BE CONTROVERTED." 

"IF IT IS TO BE SUSTAINED AT ALL WITH RESPECT TO GASOLINE TO BE USED
IN OTHER STATES, IT MUST BE SUSTAINED UPON THE THEORY THAT THE METHOD
EMPLOYED FOR DETERMINING THE AMOUNT OF THE TAX CONSTITUTES A FAIR
MEASURE FOR ASCERTAINING THE COMPENSATION WHICH LAWFULLY MAY BE EXACTED
BY ARKANSAS FROM THE APPELLANT FOR THE USE WHICH IT MAKES OF THE
HIGHWAYS OF THE STATE." 

"WHILE WE CAN UNDERSTAND HOW THE USE OF STATE HIGHWAYS BY A CARRIER
CAN BE ROUGHLY MEASURED BY THE AMOUNT OF GASOLINE WHICH THAT CARRIER
USES TO MOVE ITS VEHICLES OVER THE HIGHWAYS, WE ARE UNABLE TO
COMPREHEND HOW THE USE OF THE HIGHWAYS OF ONE STATE CAN APPROPRIATELY
BE MEASURED BY THE AMOUNT OF GASOLINE CARRIED IN THE FUEL TANK OF AN
INTERSTATE CARRIER FOR USE UPON THE HIGHWAYS OF ANOTHER STATE."  101
F.2D 572, 574. 

ALSO, IT DECLARED THE POINT IN ISSUE IS RULED BY INTERSTATE TRANSIT,
INC. V. LINDSEY, 283 U.S. 183, 186, WHICH HELD INVALID A TAX LAID BY
TENNESSEE'S LEGISLATURE ON THE PRIVILEGE OF OPERATING A BUS IN
INTERSTATE COMMERCE BECAUSE NOT IMPOSED SOLELY AS COMPENSATION FOR THE
USE OF HIGHWAYS OR TO DEFRAY THE EXPENSE OF REGULATING MOTOR TRAFFIC. 

FINALLY, IT REVERSED THE DISTRICT COURT AND DIRECTED ENTRY OF A
DECREE THERE ENJOINING APPELLANT "FROM ENFORCING THE CHALLENGED TAX
AGAINST IT (THE APPELLEE) WITH RESPECT TO ALL GASOLINE IN THE FUEL
TANKS OF ITS INTERSTATE BUSSES WHICH IS BEING CARRIED THROUGH ARKANSAS
FOR USE IN OTHER STATES." 

THIS ACTION WE APPROVE. 

THE OFTEN ANNOUNCED RULE IS THAT WHILE GENERALLY A STATE MAY NOT
DIRECTLY BURDEN INTERSTATE COMMERCE BY TAXATION SHE MAY REQUIRE ALL WHO
USE HER ROADS TO MAKE REASONABLE COMPENSATION THEREFOR.  HENDRICK V.
MARYLAND, 235 U.S. 610, 622; INTERSTATE TRANSIT, INC. V. LINDSEY,
SUPRA, 185, 186; BINGAMAN V. GOLDEN EAGLE WESTERN LINES, 297 U.S. 626,
628. 

HERE, THE REVENUE OFFICER DEMANDED PAYMENT OF APPELLEE ON ACCOUNT OF
GASOLINE TO BE IMMEDIATELY TRANSPORTED OVER THE ROADS OF ARKANSAS FOR
CONSUMPTION BEYOND.  IF, CONSIDERING ALL THE CIRCUMSTANCES, THIS
IMPOSITION REASONABLY CAN BE REGARDED AS PROPER COMPENSATION FOR USING
THE ROADS IT IS PERMISSIBLE.  BUT THE FACTS DISCLOSED ARE INCOMPATIBLE
WITH THAT VIEW.  A FAIR CHARGE COULD HAVE NO REASONABLE RELATION TO
SUCH GASOLINE.  THAT COULD NOT BE EVEN ROUGHLY COMPUTED BY CONSIDERING
ONLY THE CONTENTS OF THE TANK.  MOREOVER, WE FIND NO PURPOSE TO EXACT
FAIR COMPENSATION ONLY FROM ALL WHO MAKE USE OF THE HIGHWAYS.  TWENTY
GALLONS OF GASOLINE ORDINARILY WILL PROPEL A BUS ACROSS THE STATE AND
IF ONLY THAT MUCH IS IN THE TANK AT THE BORDER NO CHARGE WHATEVER IS
MADE.  EVIDENTLY LARGE USE WITHOUT COMPENSATION IS PERMISSIBLE AND EASY
TO OBTAIN. 

THE POINT HERE INVOLVED HAS BEEN MUCH DISCUSSED.  OUR OPINIONS ABOVE
REFERRED TO AND OTHERS THERE CITED DEFINE THE APPLICABLE PRINCIPLES. 
THE PRESENT CONTROVERSY IS WITHIN THOSE APPROVED BY INTERSTATE TRANSIT,
INC. V. LINDSEY, SUPRA.  NEITHER HICKLIN V. CONEY, 290 U.S. 169, NOR
BINGAMAN V. GOLDEN EAGLE WESTERN LINES, SUPRA, RELIED UPON BY
APPELLANT'S COUNSEL, PROPERLY UNDERSTOOD, SANCTIONS A DIFFERENT VIEW. 

THE CHALLENGED JUDGMENT MUST BE AFFIRMED. 

FN1  ACT 67 GENERAL ASSEMBLY ARKANSAS, APPROVED MARCH 2, 1933 - 

"SECTION 1.  ON AND AFTER THE PASSAGE OF THIS ACT IT SHALL BE A
VIOLATION OF THE LAW FOR ANY PERSON, CO-PARTNERSHIP OR COMPANY TO DRIVE
OR CAUSE TO BE DRIVEN INTO THE STATE OF ARKANSAS ANY AUTOMOBILE OR
TRUCK CARRYING OVER TWENTY (20) GALLONS OF GASOLINE IN THE GASOLINE
TANK OF SUCH AUTOMOBILE OR TRUCK OR IN AUXILIARY TANKS OF SAID TRUCKS
TO BE USED AS MOTOR FUEL IN SAID TRUCK OR MOTOR VEHICLES UNTIL THE
STATE TAX THEREON HAS BEEN PAID. 

"SECTION 2.  ANY PERSON, CO-PARTNERSHIP OR COMPANY VIOLATING THE
PROVISIONS OF THIS ACT SHALL BE DEEMED GUILTY OF A MISDEMEANOR AND UPON
CONVICTION THEREOF SHALL BE FINED IN ANY SUM NOT EXCEEDING ONE HUNDRED
($100) DOLLARS.  EACH LOAD CARRIED INTO THE STATE SHALL CONSTITUTE A
SEPARATE OFFENSE. 

"SECTION 3.  ALL LAWS AND PARTS OF LAWS IN CONFLICT HEREWITH ARE
HEREBY REPEALED.  IT IS ASCERTAINED THAT THIS ACT IS NECESSARY TO
BETTER ENFORCE THE GASOLINE COLLECTION LAWS AND SAID ACT BEING
NECESSARY FOR THE IMMEDIATE PRESERVATION OF THE PUBLIC PEACE, HEALTH
AND SAFETY, AN EMERGENCY IS HEREBY DECLARED TO EXIST AND THIS ACT SHALL
TAKE EFFECT AND BE IN FULL FORCE FROM AND AFTER ITS PASSAGE." 

FN2  ACT 11 EXTRAORDINARY SESSIONS ARKANSAS, APPROVED FEBRUARY 12,
1934 - 

"SECTION 22.  PARAGRAPH (C) OF SECTION 1 OF ACT NO. 63 OF THE GENERAL
ASSEMBLY, APPROVED FEBRUARY 25, 1931, IS AMENDED TO READ AS FOLLOWS: 

"'(C) THERE IS HEREBY LEVIED A PRIVILEGE OR EXCISE TAX OF SIX AND ONE
HALF CENTS ON EACH GALLON OF MOTOR VEHICLE FUEL AS DEFINED IN THIS ACT,
SOLD OR USED IN THIS STATE OR PURCHASED FOR SALE OR USE IN THIS
STATE.'" 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE STONE, CONCURRING: 

THE CHIEF JUSTICE, MR. JUSTICE ROBERTS, MR. JUSTICE REED, AND I AGREE
WITH MR. JUSTICE MCREYNOLDS, BUT WE THINK A WORD SHOULD BE SAID OF
APPELLANT'S CONTENTION THAT THE TAX IN ITS PRACTICAL OPERATION MAY BE
TAKEN AS A FAIR MEASURE OF RESPONDENT'S USE OF THE HIGHWAYS. 

SINCE THE SUBJECT TAXED, GASOLINE INTRODUCED INTO THE STATE IN THE
TANK OF A VEHICLE, FOR USE SOLELY IN PROPELLING IT IN INTERSTATE
COMMERCE, IS IMMUNE FROM STATE TAXATION EXCEPT FOR A LIMITED STATE
PURPOSE, THE EXACTION OF A REASONABLE CHARGE FOR THE USE OF ITS
HIGHWAYS, IT IS NOT ENOUGH THAT THE TAX WHEN COLLECTED IS EXPENDED UPON
THE STATE'S HIGHWAYS.  IT MUST APPEAR ON THE FACE OF THE STATUTE OR BE
DEMONSTRABLE THAT THE TAX AS LAID IS MEASURED BY OR HAS SOME FAIR
RELATIONSHIP TO THE USE OF THE HIGHWAYS FOR WHICH THE CHARGE IS MADE. 
SPROUT V. CITY OF SOUTH BEND, 277 U.S. 163, 170; INTERSTATE TRANSIT,
INC. V. LINDSEY, 283 U.S. 183, 186; BINGAMAN V. GOLDEN EAGLE WESTERN
LINES, 297 U.S. 626, 628; MORF V. BINGAMAN, 298 U.S. 407; INGELS V.
MORF, 300 U.S. 290, 294. 

WHILE THE PRESENT TAX, LAID ON GASOLINE IN THE TANK IN EXCESS OF
TWENTY GALLONS, ADMITTEDLY HAS NO NECESSARY OR APPARENT RELATIONSHIP TO
ANY USE OF THE HIGHWAYS INTRASTATE, APPELLANT ARGUES THAT, AS APPLIED
TO THE RESERVE GASOLINE IN EACH OF APPELLEE'S VEHICLES, THE TAX EITHER
IS, OR WITH A REDUCTION OF THE RESERVES WOULD BE, SUBSTANTIALLY
EQUIVALENT TO A TAX WHICH THE STATE COULD LAY, BUT HAS NOT, ON THE
GASOLINE CONSUMED WITHIN THE STATE.  THAT COULD BE TRUE ONLY IN CASE
THE TAXED GASOLINE, SAID TO BE RESERVED FOR THE EXTRASTATE JOURNEY,
WERE BY CHANCE OR DESIGN OF SUBSTANTIALLY THE SAME AMOUNT AS THAT
CONSUMED INTRASTATE. 

THAT THE RELATIONSHIP BETWEEN TAX AND HIGHWAY USE DOES NOT IN FACT
EXIST AS THE BUSINESS IS NOW CONDUCTED, IS DEMONSTRATED BY APPELLANT'S
SHOWING THAT ON ALL OF APPELLEE'S ROUTES, TAKEN TOGETHER, THE TAXED
GASOLINE WHICH IS RESERVED FOR EXTRASTATE USE IS SUBSTANTIALLY MORE
THAN THAT CONSUMED ON THOSE ROUTES WITHIN THE STATE.  IN THREE THE
TAXED RESERVE IN EXCESS OF THE TWENTY GALLONS EXEMPTION IS
SUBSTANTIALLY THE SAME AS THE AMOUNT OF THE INTRASTATE CONSUMPTION. 
BUT ON THE FOURTH ROUTE THE TAXED RESERVE ON BUSSES MOVING IN ONE
DIRECTION IS MORE THAN FOUR TIMES THAT CONSUMED WITHIN THE STATE.  IN
THE OTHER IT IS APPROXIMATELY THE SAME.  WITH THE THREE SCHEDULED TRIPS
DAILY EACH WAY ON THE MEMPHIS-ST. LOUIS ROUTE, THE EXCESS OF THE
GASOLINE TAXED OVER THAT CONSUMED IN THE STATE IS MORE THAN 150 GALLONS
PER DAY.  IN NO CASE DOES IT APPEAR THAT THE AMOUNT OF TAXED GASOLINE
HAS ANY RELATION TO THE SIZE OR WEIGHT OF VEHICLES. 

IT CANNOT BE SAID THAT SUCH A TAX WHOSE EQUIVALENCE TO A FAIR CHARGE
FOR THE USE OF THE HIGHWAYS, WHEN NOT FORTUITOUS, IS ATTAINED ONLY BY
APPELLEE'S ABANDONMENT OF SOME OF THE COMMERCE WHICH IS TAXED, HAS ANY
SUCH FAIR RELATIONSHIP TO THE USE OF THE HIGHWAYS BY APPELLEE AS WOULD
SERVE TO RELIEVE THE STATE FROM THE CONSTITUTIONAL PROHIBITION AGAINST
THE TAXATION OF PROPERTY MOVING IN INTERSTATE COMMERCE.  A TAX SO
VARIABLE IN ITS REVENUE PRODUCTION WHEN COMPARED WITH THE TAXPAYER'S
INTRASTATE MOVEMENT CANNOT BE THOUGHT TO BE "LEVIED ONLY AS
COMPENSATION FOR THE USE OF THE HIGHWAYS."  INTERSTATE TRANSIT, INC. V.
LINDSEY, SUPRA, 186.  JUSTIFICATION OF THE TAX, AS A COMPENSATION
MEASURE, BY TREATING IT AS THE EQUIVALENT OF ONE WHICH COULD BE LAID ON
GASOLINE CONSUMED WITHIN THE STATE MUST FAIL BECAUSE THE STATUTE ON ITS
FACE AND IN ITS APPLICATION DISCRIMINATES AGAINST THE COMMERCE BY
MEASURING THE TAX BY THE CONSUMPTION OF GASOLINE MOVING AND USED IN
INTERSTATE COMMERCE WHICH OCCURS OUTSIDE THE STATE.  SEE FARGO V.
MICHIGAN, 121 U.S. 230, 241; GWIN, WHITE & PRINCE V. HENNEFORD, 305
U.S. 434, 438. 

IT IS NO ANSWER TO THE CHALLENGE TO THE LEVY TO SAY THAT BY ALTERING
THE AMOUNT OF THE GASOLINE BROUGHT INTO THE STATE FOR EXTRASTATE
CONSUMPTION APPELLEE COULD SO MODERATE THE TAX THAT IT WOULD BEAR A
FAIR RELATION TO THE USE OF THE HIGHWAYS WITHIN THE STATE.  IN THE
CIRCUMSTANCES OF THIS CASE THE STATE IS WITHOUT POWER TO REGULATE THE
AMOUNT OF GASOLINE CARRIED INTERSTATE IN APPELLEE'S TANKS.  IT CANNOT
BE SAID, IF THAT WERE MATERIAL, THAT THE AMOUNT CARRIED IS NOT
APPROPRIATE FOR THE INTERSTATE COMMERCE IN WHICH APPELLEE IS ENGAGED
AND IT CAN HARDLY BE SUPPOSED THAT THE STATE COULD COMPEL APPELLEE TO
PURCHASE THERE ALL THE GASOLINE WHICH IT USES INTRASTATE UPON AN
INTERSTATE JOURNEY, BECAUSE THAT WOULD BE A CONVENIENT MEANS OF LAYING
AND COLLECTING A TAX FOR THE USE OF THE HIGHWAYS.  THERE ARE WAYS
ENOUGH IN WHICH THE STATE CAN TAKE ITS LAWFUL TOLL WITHOUT ANY
SUPPRESSION OF THE COMMERCE WHICH IT TAXES.  IN LAYING AN EXACTION AS A
MEANS OF COLLECTING COMPENSATION FOR THE USE OF ITS HIGHWAYS THE STATE
MUST TAX THE COMMERCE AS IT IS DONE, AND NOT AS IT MIGHT BE DONE IF THE
STATE COULD CONTROL IT.  APPELLANT CANNOT JUSTIFY AN UNLAWFUL EXACTION
BY INSISTING THAT IT WOULD BE LAWFUL IF THE TAXPAYER WERE TO RELINQUISH
SOME OF THE COMMERCE WHICH THE CONSTITUTION PROTECTS FROM STATE
INTERFERENCE.    MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, AND MR.
JUSTICE DOUGLAS, DISSENTING: 

WE TAKE A DIFFERENT VIEW.  MEASURED BY THE OFTREPEATED JUDICIAL RULE
THAT EVERY ENACTMENT OF A LEGISLATURE CARRIES A PRESUMPTION OF
CONSTITUTIONAL VALIDITY, THE ARKANSAS TAX HAS NOT, IN OUR OPINION, BEEN
SHOWN TO BE BEYOND ALL REASONABLE DOUBT IN VIOLATION OF THE
CONSTITUTIONAL PROVISION THAT "CONGRESS SHALL HAVE POWER TO  ...
REGULATE COMMERCE  ... AMONG THE STATES."  "IN CASE OF REAL DOUBT, A
LAW MUST BE SUSTAINED."  MR. JUSTICE HOLMES IN INTERSTATE CONSOLIDATED
RY. CO. V. MASSACHUSETTS, 207 U.S. 79, 88.  FN1  CONGRESS, SOLE
CONSTITUTIONAL LEGISLATIVE REPOSITORY OF POWER OVER THAT COMMERCE, HAS
ENACTED NO REGULATION PROHIBITING ARKANSAS FROM LEVYING A TAX - ON
GASOLINE IN EXCESS OF TWENTY GALLONS BROUGHT INTO THE STATE - IN RETURN
FOR THE USE OF ITS HIGHWAYS.  GASOLINE TAXES ARE WIDELY UTILIZED FOR
BUILDING AND MAINTAINING PUBLIC ROADS, AND THE PROCEEDS OF THIS
ARKANSAS TAX ARE PLEDGED TO THAT END.  ARKANSAS CAN LEVY A GALLONAGE
TAX ON ANY GASOLINE WITHDRAWN FROM STORAGE WITHIN THE STATE AND PLACED
IN THE TANKS OF THIS CARRIER'S VEHICLES "NOTWITHSTANDING THAT ITS
ULTIMATE FUNCTION IS TO GENERATE MOTIVE POWER FOR CARRYING ON
INTERSTATE COMMERCE."  EDELMAN V. BOEING AIR TRANSPORT, 289 U.S. 249,
252.  THE PRESENT TAX AIMS AT CARRIERS WHO WOULD ESCAPE SUCH TAXATION,
UNLESS WE ARE TO REQUIRE ARKANSAS TO SHAPE ITS TAXES TO THE
CIRCUMSTANCES OF EACH CARRIER. 

THE COST ENTAILED BY THE CONSTRUCTION AND MAINTENANCE OF MODERN
HIGHWAYS CREATES FOR THE FORTY-EIGHT STATES ONE OF THEIR LARGEST
FINANCIAL PROBLEMS.  A MAJOR PHASE OF THIS PROBLEM IS THE PROPER
APPORTIONMENT OF THE FINANCIAL BURDEN BETWEEN THOSE WHO USE A STATE'S
HIGHWAYS FOR TRANSPORTATION WITHIN ITS BORDERS AND THOSE WHO DO SO IN
THE COURSE OF INTERSTATE TRANSPORTATION.  STRIKING A FAIR BALANCE
INVOLVES INCALCULABLE VARIANTS AND THEREFORE IS BESET WITH
PERPLEXITIES.  THE MAKING OF THESE EXACTING ADJUSTMENTS IS THE BUSINESS
OF LEGISLATION - THAT OF STATE LEGISLATURES AND OF CONGRESS.  THIS
COURT HAS BUT A LIMITED RESPONSIBILITY IN THAT STATE LEGISLATION MAY
HERE BE CHALLENGED IF IT DISCRIMINATES AGAINST INTERSTATE COMMERCE OR
IS HOSTILE TO THE CONGRESSIONAL GRANT OF AUTHORITY.  MCGOLDRICK V.
BERWIND-WHITE COAL MINING CO., ANTE, P. 33. 

ARKANSAS' TAX HITS THE BIG, HEAVY BUSSES AND TRUCKS WHICH, IT IS WELL
ESTABLISHED, ENTAIL MOST SERIOUS WEAR AND TEAR UPON ROADS.  HAD
ARKANSAS EXPRESSLY DECLARED THE CHALLENGED STATUTE TO BE A MEANS OF
WORKING OUT A FAIR CHARGE UPON THESE HEAVY VEHICLES FOR COST AND
MAINTENANCE OF THE ROADS THEY TRAVEL IN THE STATE, THE RELATIONSHIP
BETWEEN THE MEANS EMPLOYED AND THESE ALLOWABLE ENDS - HOWEVER CRUDE AND
AWKWARD - WOULD HAVE BEEN RENDERED MORE EXPLICIT, BUT NOT MADE MORE
EVIDENTLY A MATTER OF POLICY AND ADMINISTRATION, AND THEREFORE NOT FOR
JUDICIAL DETERMINATION.  CERTAINLY, THE STATE HAD POWER TO IMPOSE FLAT
FEES OR TAXES GRADUATED ACCORDING TO GASOLINE USED, HORSEPOWER, WEIGHT
AND CAPACITY OR MILEAGE, AND YET THOSE TAXES WOULD NOT MEASURE WITH
EXACT PRECISION THE TAXPAYERS' USE OF ARKANSAS HIGHWAYS.  FN2  IT IS
NOT FOR US TO MEASURE THE REFINEMENTS OF FISCAL DUTIES WHICH A STATE
MAY EXACT FROM THESE HEAVY MOTOR VEHICLES.  FN3 

THIS CASE AGAIN ILLUSTRATES THE WISDOM OF THE FOUNDERS IN PLACING
INTERSTATE COMMERCE UNDER THE PROTECTION OF CONGRESS.  THE PRESENT
PROBLEM IS NOT LIMITED TO ARKANSAS, BUT IS OF NATIONAL MOMENT. 
MAINTENANCE OF OPEN CHANNELS OF TRADE BETWEEN THE STATES WAS NOT ONLY
OF PARAMOUNT IMPORTANCE WHEN OUR CONSTITUTION WAS FRAMED; IT REMAINS
TODAY A COMPLEX PROBLEM CALLING FOR NATIONAL VIGILANCE AND REGULATION. 

OUR DISAGREEMENT WITH THE OPINIONS JUST ANNOUNCED DOES NOT ARISE FROM
A BELIEF THAT FEDERAL ACTION IS UNNECESSARY TO BRING ABOUT APPROPRIATE
UNIFORMITY IN REGULATIONS OF INTERSTATE COMMERCE.  INDEED, STATE
LEGISLATION RECENTLY BEFORE THIS COURT INDICATES QUITE THE CONTRARY. 
FOR INSTANCE, WE SUSTAINED THE RIGHT OF SOUTH CAROLINA - IN THE ABSENCE
OF CONGRESSIONAL PROHIBITION - TO REGULATE THE WIDTH AND WEIGHT OF
INTERSTATE TRUCKS USING HER HIGHWAYS, EVEN THOUGH THE UNASSAILED
FINDINGS SHOWED THAT A SUBSTANTIAL AMOUNT OF INTERSTATE COMMERCE WOULD
THEREBY BE BARRED FROM THE STATE.  SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS.  FN4  WE DID NOT THEREBY APPROVE THE DESIRABILITY OF
SUCH STATE REGULATIONS.  IT IS NOT FOR US TO APPROVE OR DISAPPROVE.  WE
DID DECIDE THAT "COURTS DO NOT SIT AS LEGISLATURES, EITHER STATE OR
NATIONAL.  THEY CANNOT ACT AS CONGRESS DOES WHEN, AFTER WEIGHING ALL
THE CONFLICTING INTERESTS, STATE AND NATIONAL, IT DETERMINES WHEN AND
HOW MUCH THE STATE REGULATORY POWER SHALL YIELD TO THE LARGER INTERESTS
OF NATIONAL COMMERCE."  FN5  AS BOTH THE UNION AND THE STATES ARE MORE
AND MORE DEPENDENT UPON THE EXERCISE OF THEIR TAXING POWERS FOR
CARRYING ON GOVERNMENT, IT BECOMES MORE AND MORE IMPORTANT THAT
POTENTIAL CONFLICTS BETWEEN STATE AND NATIONAL POWERS SHOULD NOT BE
FOUND WHERE CONGRESS HAS NOT FOUND THEM, UNLESS CONFLICT IS ESTABLISHED
BY DEMONSTRABLE CONCRETENESS.  SEE HAMMOND V. SCHAPPI BUS LINE, 275
U.S. 164. 

EVEN UNDER THE PRINCIPLE ENUNCIATED BY THE MAJORITY - THAT ARKANSAS
MAY NOT MEASURE HER TAX BY GASOLINE CARRIED IN APPELLEE'S TANKS FOR USE
IN OTHER STATES - THE CHALLENGED JUDGMENT SHOULD NOT STAND. 

ARKANSAS ADMITTEDLY HAS POWER TO TAX APPELLEE UPON GASOLINE USED
WITHIN HER BORDERS, AND NEED NOT, OF COURSE, EXTEND TO APPELLEE ANY
EXEMPTION FOR A RESERVE.  THE RECORD DISCLOSES THAT APPELLEE'S BUSSES
TRAVEL 1188.8 MILES EACH DAY OVER ARKANSAS HIGHWAYS.  THE TRIAL JUDGE
FOUND, AND THERE IS EVIDENCE TO SUPPORT THE FINDING, THAT THESE BUSSES
USE ABOUT ONE GALLON OF GASOLINE FOR EVERY FIVE MILES TRAVELED.  THUS,
APPELLEE USES ABOUT 237.76 GALLONS OF GASOLINE A DAY IN ARKANSAS, UPON
WHICH THE TAX OF 6.5 CENTS PER GALLON USED WOULD AMOUNT TO $15.45 A
DAY. 

APPELLEE'S BUSSES TRAVEL FOUR DIFFERENT ROUTES, TWO FROM MEMPHIS
THROUGH ARKANSAS TO MISSOURI, AND TWO FROM MEMPHIS TO CITIES IN
ARKANSAS.  ON THE TRIPS TO MISSOURI THE TAX NOW EXACTED BY ARKANSAS IS
GREATER THAN WOULD BE A TAX ON THE GASOLINE ACTUALLY USED IN ARKANSAS. 
BUT ON THE TRIPS FROM MEMPHIS INTO ARKANSAS AND BACK, THE TAX EXACTED,
BECAUSE OF THE 20-GALLON EXEMPTION, IS LESS THAN WOULD BE A TAX ON THE
GASOLINE USED IN ARKANSAS. 

AS APPELLANT POINTS OUT IN HIS BRIEF, WHEN ALL THE ROUTES ARE TAKEN
TOGETHER, THE DAILY TAX WHICH ARKANSAS WOULD COLLECT IF APPELLEE
CARRIED ONLY ENOUGH GASOLINE TO COMPLETE EACH TRIP WOULD ONLY AMOUNT TO
$13.00 - ACTUALLY $2.45 LESS THAN A TAX ON GASOLINE CONSUMED IN
ARKANSAS. 

THIS AMOUNT - $2.45 - EQUALS THE PRESENT TAX ON 37 GALLONS OF
GASOLINE.  APPELLEE'S BUSSES ENTER ARKANSAS 13 TIMES EACH DAY.  IT
FOLLOWS THAT APPELLEE MAY CARRY A RESERVE OF ALMOST THREE GALLONS ON
EACH TRIP AND STILL PAY NO MORE THAN THE TAX WHICH, AS THE MAJORITY
ASSUMES, ARKANSAS COULD CONSTITUTIONALLY IMPOSE ON THE GASOLINE
ACTUALLY CONSUMED ON HER OWN ROADS.  THERE IS NOTHING IN THE RECORD TO
SHOW THAT A GREATER RESERVE IS NECESSARY.  AN INTERSTATE CARRIER HAS NO
ABSOLUTE RIGHT TO FIX THE SIZE AND CHARACTER OF ITS EQUIPMENT USED IN
INTERSTATE COMMERCE, IN TOTAL DISREGARD OF THE NECESSITIES OF THE
ENTERPRISE AND THE REQUIREMENTS OF STATES THROUGH WHICH THE CARRIER
OPERATES.  FN6  EXACTIONS BY SUCH STATES MAY WELL BE DESIGNED TO
OPERATE UPON THE QUANTITY OF GASOLINE RESERVES FOR CONSIDERATIONS
ANALOGOUS TO THOSE WHICH HAVE CALLED INTO BEING STATE REGULATIONS OF
THE SIZE, WEIGHT AND NUMBER OF THE VEHICLES THEMSELVES.  AND A STATE
TAX WHICH MAY INDUCE A REDUCTION IN THE AMOUNT OF RESERVE PREVIOUSLY
CARRIED IS NO MORE TO BE CONDEMNED ON THAT SOLE GROUND ALONE THAN IS A
STATE LAW ACTUALLY PROHIBITING VEHICLES ABOVE A CERTAIN SIZE OR
WEIGHT.  THAT THIS REDUCTION MAY BE ATTRIBUTABLE TO A TAX RATHER THAN
TO A REGULATORY MEASURE EXPRESSLY PASSED IN THE INTERESTS OF PUBLIC
SAFETY SHOULD NOT BE CONTROLLING.  PARTICULARLY IS THIS SO WHEN THE
PROCEEDS OF THE TAX ARE UTILIZED EXCLUSIVELY FOR HIGHWAY PURPOSES AND
THE TAX ITSELF IS DIRECTED TO GASOLINE USED, JUST AS OTHER EQUIPMENT IS
USED, IN THE COURSE OF INTERSTATE BUSINESS AND INVOLVES NO
MANIFESTATION OF HOSTILITY TO - OR LEVY UPON - GASOLINE CARRIED AS A
COMMODITY IN INTERSTATE COMMERCE.  IT IS PRESUMABLY SAFE TO RELY ON
APPELLEE'S SELF-INTEREST TO WORK OUT ANY SCHEDULES OF REFUELING AT ITS
VARIOUS STORAGE FACILITIES NECESSITATED BY CHANGES IN RESERVES
CARRIED.  WE CANNOT BELIEVE THAT APPELLEE IS ABLE TO ATTACK THE
CONSTITUTIONALITY OF THIS TAX ON THE GROUND THAT AS TO OTHERS IT MIGHT
OPERATE DIFFERENTLY AND SERVE TO BURDEN THE USE OF GASOLINE IN OTHER
STATES.  FN7  IT IS IMPORTANT TO BEAR IN MIND THAT WE ARE NOT PASSING
UPON A STATUTE AS SUCH BUT UPON THE INCIDENCE OF THIS STATUTE IN THE
SINGLE CONCRETE SITUATION PRESENTED BY A SPECIFIC OBJECTOR ON THIS
SPECIFIC RECORD.  THE VERY FACT THAT SUCH NICETIES OF CALCULATION HAVE
TO BE INDULGED IN AS THE CONCURRING OPINION FINDS NECESSARY IN ORDER TO
ESTABLISH THE MISCHIEF OF THE STATUTE, MAKES MANIFEST THE "REAL DOUBT"
OF ANY SHOWING OF UNCONSTITUTIONALITY AND INDICATES THAT A BURDEN OF
CALCULATION AND SPECULATION IS ASSUMED IN THE EXERCISE OF THE JUDICIAL
FUNCTION WHICH SHOULD BE LEFT TO THE LEGISLATURES OF THE STATES AND THE
CONGRESS. 

JUDICIAL CONTROL OF NATIONAL COMMERCE - UNLIKE LEGISLATIVE
REGULATIONS - MUST FROM INHERENT LIMITATIONS OF THE JUDICIAL PROCESS
TREAT THE SUBJECT BY THE HIT-AND-MISS METHOD OF DECIDING SINGLE LOCAL
CONTROVERSIES UPON EVIDENCE AND INFORMATION LIMITED BY THE NARROW RULES
OF LITIGATION.  SPASMODIC AND UNRELATED INSTANCES OF LITIGATION CANNOT
AFFORD AN ADEQUATE BASIS FOR THE CREATION OF INTEGRATED NATIONAL RULES
WHICH ALONE CAN AFFORD THAT FULL PROTECTION FOR INTERSTATE COMMERCE
INTENDED BY THE CONSTITUTION.  WE WOULD, THEREFORE, LEAVE THE QUESTIONS
RAISED BY THE ARKANSAS TAX FOR CONSIDERATION OF CONGRESS IN A NATION
WIDE SURVEY OF THE CONSTANTLY INCREASING BARRIERS TO TRADE AMONG THE
STATES.  UNCONFINED BY "THE NARROW SCOPE OF JUDICIAL PROCEEDINGS"  FN8
CONGRESS ALONE CAN, IN THE EXERCISE OF ITS PLENARY CONSTITUTIONAL
CONTROL OVER INTERSTATE COMMERCE, NOT ONLY CONSIDER WHETHER SUCH A TAX
AS NOW UNDER SCRUTINY IS CONSISTENT WITH THE BEST INTERESTS OF OUR
NATIONAL ECONOMY, BUT CAN ALSO ON THE BASIS OF FULL EXPLORATION OF THE
MANY ASPECTS OF A COMPLICATED PROBLEM DEVISE A NATIONAL POLICY FAIR
ALIKE TO THE STATES AND OUR UNION.  DIVERSE AND INTERACTING STATE LAWS
MAY WELL HAVE CREATED AVOIDABLE HARDSHIPS.  SEE, COMPARATIVE CHARTS OF
STATE STATUTES ILLUSTRATING BARRIERS TO TRADE BETWEEN STATES, WORKS
PROGRESS ADMINISTRATION, MAY, 1939; PROCEEDINGS, THE NATIONAL
CONFERENCE ON INTERSTATE TRADE BARRIERS, THE COUNCIL OF STATE
GOVERNMENTS, 1939.  BUT THE REMEDY, IF ANY IS CALLED FOR, WE THINK IS
WITHIN THE AMPLE REACH OF CONGRESS. 

FN1  CF. OGDEN V. SAUNDERS, 12 WHEAT.  213, 270; BUTLER V.
PENNSYLVANIA, 10 HOW.  402; BOOTH V. ILLINOIS, 184 U.S. 425; HENDERSON
BRIDGE CO. V. HENDERSON CITY, 173 U.S. 592, 606, 615; SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177, 195. 

FN2  INTERSTATE BUSSES CORP. V. BLODGETT, 276 U.S. 245; CARLEY &
HAMILTON V. SNOOK, 281 U.S. 66; CONTINENTAL BAKING CO. V. WOODRING, 286
U.S. 352; HICKLIN V. CONEY, 290 U.S. 169; AERO TRANSIT CO. V. GEORGIA
COMM'N, 295 U.S. 285; MORF V. BINGAMAN, 298 U.S. 407. 

FN3  IF THE STATE HAD THE POWER TO LEVY THE TAX, ABSENT CONGRESSIONAL
PROSCRIPTION, IT LIKEWISE HAD THE POWER TO EXTEND THE GRACE OF
EXEMPTION TO USERS OF ITS HIGHWAYS OF LESS TANK CAPACITY OR GASOLINE
LOAD THAN APPELLEE.  CF. CONTINENTAL BAKING CO. V. WOODRING, SUPRA, 370
3; SPROLES V. BINFORD, 286 U.S. 374, 396; AERO TRANSIT CO. V. GEORGIA
COMM'N, SUPRA, 289, 292-3. 

FN4  303 U.S. 177, 190. 

FN5  ID., 190. 

FN6  SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177. 

FN7  BOURJOIS, INC. V. CHAPMAN, 301 U.S. 183, 190; MONAMOTOR OIL CO.
V. JOHNSON, 292 U.S. 86, 96; SEE OPINION OF MR. JUSTICE BRANDEIS,
ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 347. 

FN8  SEE MR. CHIEF JUSTICE TANEY, DISSENTING, PENNSYLVANIA V.
WHEELING & BELMONT BRIDGE CO., 13 HOW.  518, 592. 
..END :






DEITRICK V. GREANEY, 309 U.S. 190 


NO. 246.  ARGUED JANUARY 10, 1940.  - DECIDED FEBRUARY 12, 1940.  - 103
F.2D 83, REVERSED. 


1.  A RECEIVER OF A NATIONAL BANK, REPRESENTING CREDITORS, MAY COMPEL
PAYMENT OF A PROMISSORY NOTE KNOWINGLY GIVEN TO THE BANK BY ONE OF ITS
DIRECTORS AS A SUBSTITUTE FOR SHARES OF ITS OWN STOCK ILLEGALLY
PURCHASED AND RETAINED BY THE BANK, THE NOTE HAVING BEEN DELIVERED UPON
THE UNDERSTANDING THAT IT WAS NOT TO BE PAID AND THAT THE BANK WAS TO
RETAIN ITS INTEREST IN THE STOCK.  P. 196. 

THE PURPOSE OF THE NATIONAL BANK ACT IN PROHIBITING THE PURCHASE BY A
BANK OF ITS OWN STOCK IS TO PREVENT IMPAIRMENT OF ITS CAPITAL RESOURCES
AND CONSEQUENT INJURY TO CREDITORS IN THE EVENT OF INSOLVENCY.  THE
PROVISIONS REQUIRING PERIODIC EXAMINATIONS AND REPORTS ARE DESIGNED TO
INSURE PROMPT DISCOVERY OF VIOLATIONS OF THE ACT AND PROMPT REMEDIAL
ACTION BY THE COMPTROLLER.  THESE PURPOSES WOULD BE DEFEATED AND THE
COMMAND OF THE STATUTE NULLIFIED IF A DIRECTOR OR OFFICER, OR ANY OTHER
BY HIS CONNIVANCE, COULD PLACE IN THE BANK'S PORTFOLIO HIS OBLIGATION
GOOD ON ITS FACE, AS A SUBSTITUTE FOR ITS STOCK ILLEGALLY ACQUIRED, AND
IF HE REMAINED FREE TO SET UP THAT THE OBLIGATION WAS, IN EFFECT,
FICTITIOUS, INTENDED ONLY TO AID IN THE ACCOMPLISHMENT OF THE INJURY AT
WHICH THE STATUTE IS AIMED. 

2.  IT IS IMMATERIAL THAT THE BANK'S OFFICERS WERE PARTICIPANTS IN
THE ILLEGAL TRANSACTION, AND THAT THE RECEIVER HAS NOT SHOWN THAT
CREDITORS WERE DECEIVED OR SPECIFICALLY INJURED AS THE RESULT OF THE
ILLEGAL CONTRACT.  RANKIN V. CITY NATIONAL BANK, 208 U.S. 541 AND
DEITRICK V. STANDARD SURETY CO., 303 U.S. 471, DISTINGUISHED.  P. 198. 

3.  JUDICIAL DETERMINATION OF THE LEGAL CONSEQUENCES OF ACTS
CONDEMNED BY THE NATIONAL BANK ACT INVOLVES DECISION OF A FEDERAL
QUESTION.  P. 200. 

DEITRICK, RECEIVER, V. GREANEY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 308 U.S. 535, TO REVIEW A JUDGMENT WHICH REVERSED IN PART
A JUDGMENT RECOVERED IN A SUIT BY THE RECEIVER TO COLLECT AN ASSESSMENT
UPON SHARES OF AN INSOLVENT NATIONAL BANK, AND TO COLLECT A PROMISSORY
NOTE FOUND AMONG ITS ASSETS. 

THE RECEIVER MAY NOT RECOVER FROM THE MAKER OF AN ACCOMMODATION NOTE
GIVEN TO THE BANK, AT ITS REQUEST, AND TAKEN BY THE BANK FOR THE
PURPOSE OF CONCEALING ITS OWNERSHIP OF SHARES OF ITS OWN STOCK
PREVIOUSLY ACQUIRED BY IT IN VIOLATION OF LAW.  RANKIN V. CITY NATIONAL
BANK, 208 U.S. 541; DEITRICK V. STANDARD SURETY & CASUALTY CO., 303
U.S. 471; YATES CENTER NATIONAL BANK V. LAUBER, 240 F. 237; CUTLER V.
FRY, 240 F. 238; YATES CENTER NATIONAL BANK V. SCHAEDE, 240 F. 240;
ANDRESEN V. KAERCHER, 38 F.2D 462.  LIABILITY OF THE MAKER CAN NOT BE
PREDICATED MERELY ON THE FACT THAT HE WAS A DIRECTOR OF THE BANK. 

FEDERAL LAW GOVERNS THE VALIDITY AND ENFORCIBILITY OF THE NOTE IN
SUIT.  AUTEN V. U.S. NATIONAL BANK, 174 U.S. 125; JENNINGS V. U.S.
FIDELITY & GUARANTY CO., 294 U.S. 216. 

THE DECISION BELOW IS ALSO IN ACCORD WITH THE MASSACHUSETTS
DECISIONS.  SALEM TRUST CO. V. DEERY, 289 MASS. 431; GREAT BARRINGTON
SAVINGS BANK V. DAY, 288 MASS. 181; QUINCY TRUST CO. V. WOODBURY, 13
N.E.2D 377.  DISTINGUISHING PRUDENTIAL TRUST CO. V. MOORE, 245 MASS.
311, AND INTERNATIONAL TRUST CO. V. WATTENDORF, 256 MASS. 323. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION TO BE DECIDED IS WHETHER A RECEIVER OF A NATIONAL BANK
MAY COMPEL PAYMENT OF A PROMISSORY NOTE KNOWINGLY GIVEN TO THE BANK BY
ONE OF ITS DIRECTORS AS A SUBSTITUTE, AMONG ITS ASSETS, FOR SHARES OF
ITS OWN STOCK ILLEGALLY PURCHASED AND RETAINED BY THE BANK BUT WITH THE
UNDERSTANDING THAT IT WAS TO RETAIN ITS INTEREST IN THE STOCK AND THAT
THE NOTE WAS NOT TO BE PAID. 

PETITIONER, RECEIVER APPOINTED BY THE COMPTROLLER OF THE CURRENCY FOR
THE BOSTON-CONTINENTAL BANK, A NATIONAL BANKING ASSOCIATION, BROUGHT
SUIT AGAINST RESPONDENT, A DIRECTOR OF THE BANK, AND OTHERS, IN THE
DISTRICT COURT FOR MASSACHUSETTS TO COLLECT AN ASSESSMENT UPON SHARES
OF STOCK IN THE INSOLVENT BANK AND TO RECOVER ON RESPONDENT'S
PROMISSORY NOTE, FOUND BY THE RECEIVER AMONG ITS ASSETS. 

THE TRIAL COURT FOUND THAT THE BOSTON NATIONAL BANK, PREDECESSOR OF
THE INSOLVENT BANK, HAD ACQUIRED BY PURCHASE, 190 SHARES OF ITS
OUTSTANDING CAPITAL STOCK IN VIOLATION OF R.S. SEC. 5201, 12 U.S.C.
SEC. 83, WHICH DECLARES THAT "NO ASSOCIATION SHALL  ...  BE THE
PURCHASER OR HOLDER OF ANY SUCH SHARES"; FN1  THAT RESPONDENT AS A
MEANS OF CONCEALING THE ILLEGAL ACQUISITION OF THE STOCK AND OF
ENABLING THE BANK TO RETAIN ITS OWNERSHIP OF THE STOCK, PREVAILED UPON
HIS CO-DEFENDANT KARNOW TO EXECUTE AN ACCOMMODATION NOTE, PAYABLE TO
THE BANK, THE PROCEEDS OF WHICH WERE DEPOSITED IN ANOTHER BANK TO THE
CREDIT OF RESPONDENT WHO THEN PAID THEM TO THE BOSTON NATIONAL BANK FOR
THE 190 SHARES OF STOCK WHICH WERE THEN TRANSFERRED TO THE RESPONDENT
ON THE BOOKS OF THE BANK. 

FOLLOWING A RENEWAL OF THE KARNOW NOTE RESPONDENT TRANSFERRED THE
SHARES TO HIM ON THE BOOKS OF THE BANK AND UPON CONSOLIDATION OF THE
BOSTON WITH THE CONTINENTAL NATIONAL BANK, TO FORM THE BOSTON
CONTINENTAL NATIONAL BANK OF WHICH PETITIONER LATER BECAME RECEIVER,
NEW SHARES OF THE CONSOLIDATED BANK WERE ISSUED IN EXCHANGE FOR THE
OLD.  PART OF THEM WERE SOLD AND THE PROCEEDS USED IN REDUCTION OF THE
KARNOW NOTE.  RESPONDENT THEN GAVE TO THE BANK HIS OWN NOTE FOR THE
BALANCE, IN SUBSTITUTION FOR KARNOW'S NOTE, AND CAUSED THE REMAINING
SHARES TO BE TRANSFERRED TO THE NAME OF MAHONEY, ALSO A DEFENDANT IN
THE SUIT, WITHOUT INFORMING HIM OF THE TRANSFER. 

THE COURT FOUND THAT THE ENTIRE TRANSACTION WAS DEVISED AND CARRIED
OUT BY RESPONDENT FOR THE PURPOSE OF CONCEALING THE BANK'S OWNERSHIP OF
THE STOCK BY OSTENSIBLY REMOVING THE SHARES OF STOCK FROM ITS ASSETS
AND CARRYING THE SUCCESSIVE NOTES IN THEIR STEAD AS RECEIVABLES ON THE
BOOKS OF THE BANK WITH A SECRET AGREEMENT THAT THE STOCK SHOULD BE HELD
FOR THE BOSTON AND LATER FOR THE BOSTON-CONTINENTAL BANK WITHOUT
LIABILITY ON THE PART OF THE MAKER OF THE NOTE.  THE COURT FOUND
LIABILITY OF RESPONDENT FOR THE ASSESSMENT UPON THE SHARES HELD BY
MAHONEY FOR HIS ACCOUNT, CONCLUDED THAT HE WAS ESTOPPED TO DENY
LIABILITY ON THE NOTE AND DECREED ACCORDINGLY THAT RESPONDENT ALONE
SHOULD PAY THE STOCK ASSESSMENT AND THE AMOUNT DUE ON THE NOTE, 23
F.SUPP.  758. 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT REVERSED SO MUCH OF THE
DECREE AS ALLOWED RECOVERY ON THE NOTE.  103 F.2D 83.  IT CONFIRMED THE
FINDINGS OF THE TRIAL COURT.  BUT IT HELD THAT THE CIRCUMSTANCES WHICH
THEY DETAILED DID NOT PRECLUDE THE DEFENSE OF WANT OF CONSIDERATION TO
THE DEMAND OF THE RECEIVER, MORE THAN TO THAT OF THE BANK ITSELF. 

WE GRANTED CERTIORARI, 308 U.S. 535, ON PETITION OF THE RECEIVER
BECAUSE OF THE PUBLIC IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION
OF THE NATIONAL BANK ACT AND OF THE CONFLICT OF THE DECISION BELOW WITH
THAT OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT, IN FEDERAL RESERVE
BANK V. CROTHERS, 289 F. 777, AND THAT OF THE FIFTH CIRCUIT IN BOHNING
V. CALDWELL, 10 F.2D 298. 

THE NATIONAL BANK ACT CONSTITUTES "BY ITSELF A COMPLETE SYSTEM FOR
THE ESTABLISHMENT AND GOVERNMENT OF NATIONAL BANKS."  COOK COUNTY
NATIONAL BANK V. UNITED STATES, 107 U.S. 445, 448.  IN ADDITION TO THE
AUTHORITY TO CONDUCT A PUBLIC BANKING BUSINESS THE ACT CONTAINS
NUMEROUS PROVISIONS DESIGNED FOR THE PROTECTION OF THE BANK'S
DEPOSITORS AND OTHER CREDITORS.  IT ESTABLISHES MINIMUM REQUIREMENTS
FOR THE AMOUNT OF CAPITAL WITH WHICH A BANK MAY BEGIN BUSINESS, R.S.
SEC. 5138, 12 U.S.C. SEC. 51, AND MAKES SPECIAL PROVISIONS FOR SECURING
THE PAYMENT INTO THE BANK OF THE AUTHORIZED CAPITAL, R.S. SECS. 5140,
5141, 12 U.S.C. SECS. 53, 54.  IT PROHIBITS THE PURCHASE BY A BANK OF
ITS OWN SHARES OF STOCK AND THEIR RETENTION WHEN PURCHASED, R.S. SEC.
5201, 12 U.S.C. SEC. 83.  IMPAIRMENT OF CAPITAL OF AN ASSOCIATION
THROUGH ITS WITHDRAWAL BY PAYMENT OF DIVIDENDS OR OTHERWISE IS
PROHIBITED, R.S. SEC. 5204, 12 U.S.C. SEC. 56.  ANY BANK WHOSE CAPITAL
HAS BECOME IMPAIRED IS REQUIRED UNDER DIRECTION OF THE COMPTROLLER TO
MAKE UP THE DEFICIENCY BY ASSESSMENT OF ITS SHAREHOLDERS AND IN THE
EVENT OF ITS FAILURE TO DO SO A RECEIVER MAY BE APPOINTED TO WIND UP
ITS BUSINESS, R.S. SEC. 5205, 12 U.S.C. SEC. 55. 

TO INSURE PERFORMANCE OF THESE DUTIES AND AS A SAFEGUARD TO CREDITORS
AND THE PUBLIC, VIOLATION OF THE PROVISIONS OF THE ACT BY ANY DIRECTOR
OR OFFICER OF THE BANK OR BY ANY PERSON AIDING OR ABETTING HIM, IS MADE
A CRIMINAL OFFENSE, R.S. SEC. 5209, 12 U.S.C. SEC. 592, AND IN THE
EVENT OF SUCH A VIOLATION, THE ASSOCIATION MAY BE REQUIRED TO FORFEIT
ALL ITS RIGHTS AND PRIVILEGES, R.S. SEC. 5239, 12 U.S.C. SEC. 93. 
FURTHER, BY R.S. SEC. 5240, 12 U.S.C. SECS. 481, 484, THE COMPTROLLER
OF THE CURRENCY IS REQUIRED TO APPOINT EXAMINERS WHO SHALL EXAMINE THE
AFFAIRS OF EVERY BANK AT LEAST TWICE IN EACH CALENDAR YEAR WITH POWER
TO ADMINISTER OATHS AND EXAMINE OFFICERS AND AGENTS OF THE BANK UNDER
OATH AND WHO "SHALL MAKE A FULL AND DETAILED REPORT" OF THE BANK TO
HIM.  BY R.S. SEC. 5211, 12 U.S.C. SEC. 161, EVERY ASSOCIATION IS
REQUIRED TO MAKE TO THE COMPTROLLER OF THE CURRENCY NOT LESS THAN THREE
REPORTS EACH YEAR EXHIBITING IN DETAIL AND UNDER APPROPRIATE HEADS THE
RESOURCES AND LIABILITIES OF THE ASSOCIATION, AND THE COMPTROLLER IS
GIVEN POWER TO CALL FOR SPECIAL REPORTS WHENEVER, IN HIS JUDGMENT, THE
SAME ARE NECESSARY IN ORDER TO OBTAIN A FULL AND COMPLETE KNOWLEDGE OF
THE CONDITION OF THE REPORTING BANK. 

THE OBVIOUS PURPOSE OF PROHIBITING THE PURCHASE BY A BANK OF ITS OWN
STOCK IS TO PREVENT THE IMPAIRMENT OF ITS CAPITAL RESOURCES AND THE
CONSEQUENT INJURY TO ITS CREDITORS IN THE EVENT OF INSOLVENCY.  THE
PROVISIONS OF THE ACT REQUIRING PERIODIC EXAMINATIONS AND REPORTS AND
THE POWERS OF THE COMPTROLLER ARE DESIGNED TO INSURE PROMPT DISCOVERY
OF VIOLATIONS OF THE ACT AND IN THAT EVENT PROMPT REMEDIAL ACTION BY
THE COMPTROLLER.  THESE PURPOSES WOULD BE DEFEATED AND THE COMMAND OF
THE STATUTE NULLIFIED IF A DIRECTOR OR OFFICER OR ANY OTHER BY HIS
CONNIVANCE COULD PLACE IN THE BANK'S PORTFOLIO HIS OBLIGATION GOOD ON
ITS FACE, AS A SUBSTITUTE FOR ITS STOCK ILLEGALLY ACQUIRED, AND IF HE
REMAINED FREE TO SET UP THAT THE OBLIGATION WAS, IN EFFECT, FICTITIOUS,
INTENDED ONLY TO AID IN THE ACCOMPLISHMENT OF THE INJURY AT WHICH THE
STATUTE IS AIMED. 

HERE, RESPONDENT, WITH FULL KNOWLEDGE OF THE UNLAWFUL PURPOSE TO
CONCEAL THE PRESENCE OF THE STOCK AMONG THE BANK'S ASSETS, GAVE IN
EXCHANGE FOR IT, FIRST ANOTHER'S NOTE AND THEN HIS OWN, KNOWING THAT IT
WAS TO BE AVAILED OF AS AN APPARENTLY VALID AND LAWFUL ASSET SO AS TO
FORESTALL THE REMEDIES AVAILABLE UNDER THE STATUTE FOR THE UNLAWFUL
PURCHASE.  THE NOTES WERE THUS CARRIED AS RECEIVABLES ON THE BOOKS OF
THE BANK FOR A PERIOD OF MORE THAN TWO YEARS, RESPONDENT'S OWN NOTE OR
RENEWALS OF IT BEING LODGED WITH THE BANK FROM MAY 4, 1931 UNTIL THE
BANK CLOSED ITS DOORS IN DECEMBER, 1931. 

IF THE MATTER WERE OF IMPORTANCE WE COULD NOT ASSUME, IN THE ABSENCE
OF PROOF, THAT THE BANK EXAMINERS DID NOT PERFORM THEIR STATUTORY DUTY
OR THAT RESPONDENT'S NOTE WAS NOT AS IT WAS INTENDED TO BE THE
EFFECTIVE MEANS OF CONCEALING THE IMPAIRMENT OF THE BANK'S CAPITAL
STRUCTURE AND PREVENTING RESORT TO THE REMEDIES FOR IT WHICH THE
STATUTE AFFORDS.  BUT IT IS ENOUGH FOR PRESENT PURPOSES THAT THE
RESPONDENT, AFTER PLACING HIS NOTE AMONG THE BANK'S RECEIVABLES IN
SUBSTITUTION FOR THE SHARES OF STOCK, AS THE MEANS OF AVOIDING THE
CONSEQUENCES OF VIOLATION OF THE STATUTE, MAY NOT NOW TAKE THE BENEFIT
OF THE SECRET AND ILLEGAL AGREEMENT THAT HIS NOTE EXCEPT FOR PURPOSES
OF DECEIVING THE BANK EXAMINERS WAS TO BE REGARDED AS A NULLITY.  IF
RESPONDENT WERE FREE TO SET UP THE UNLAWFUL AGREEMENT AS A DEFENSE AND
THUS CAST THE LOSS FROM THE UNLAWFUL STOCK PURCHASE ON THE CREDITORS OF
THE BANK IN RECEIVERSHIP, HE WOULD BE ENABLED TO DEFEAT THE PURPOSE OF
THE STATUTE BY TAKING ADVANTAGE OF AN AGREEMENT WHICH IT CONDEMNS AS
UNLAWFUL.  THAT, WE THINK, THE LAW DOES NOT ALLOW. 

IT IS A PRINCIPLE OF THE WIDEST APPLICATION THAT EQUITY WILL NOT
PERMIT ONE TO RELY ON HIS OWN WRONGFUL ACT, AS AGAINST THOSE AFFECTED
BY IT BUT WHO HAVE NOT PARTICIPATED IN IT, TO SUPPORT HIS OWN ASSERTED
LEGAL TITLE OR TO DEFEAT A REMEDY WHICH EXCEPT FOR HIS MISCONDUCT WOULD
NOT BE AVAILABLE.  SEE UNITED STATES V. DUNN, 268 U.S. 121, 133;
INDEPENDENT COAL & COKE CO. V. UNITED STATES, 274 U.S. 640, 648. 
APPLIED IN CASES LIKE THE PRESENT, THE RULE THAT THE ILLEGAL AGREEMENT
MAY NOT BE SET UP TO DEFEAT THE OBLIGATION OF THE NOTE IS SOMETIMES
DENOMINATED AN EQUITABLE ESTOPPEL.  FN2  LYONS V. WESTWATER, 181 F.
681; 193 F. 817; FEDERAL RESERVE BANK V. CROTHERS, 289 F. 777; BOHNING
V. CALDWELL, 10 F.2D 298; CERT. DEN., 271 U. S. 663; UTLEY V. CLARKE,
16 F.SUPP.  435; IGLEHART V. TODD, 203 IND. 427; 178 N.E. 685; DENNY V.
FISHTER, 238 KY. 127; 36 S.W.2D 864; PRUDENTIAL TRUST CO. V. MOORE, 245
MASS. 311; 139 N.E. 645; LONGLEY V. COONS, 244 APP. DIV. 391; 280
N.Y.S. 17; AFF'D 268 N.Y. 712; 198 N.E. 571; BAY PARKWAY NAT. BANK V.
SHALOM, 270 N.Y. 172; 200 N.E. 685; SEE FIRST NATIONAL BANK V. SMITH,
132 PA. SUPER.  73; 200 A. 215. 

IN A STRICT AND TECHNICAL SENSE AN ESTOPPEL ARISES ONLY WHEN A
MISREPRESENTATION HAS PREJUDICED ANOTHER WHO HAS RELIED UPON IT.  FOR
THAT REASON COURTS HAVE SOMETIMES HELD THAT ONE IN THE POSITION OF
RESPONDENT IS NOT ESTOPPED TO SET UP THE AGREEMENT AGAINST THE BANK OR
THE RECEIVER EITHER BECAUSE IT DID NOT APPEAR THAT THE BANK WAS
DECEIVED BY THE CONCEALMENT AND MISREPRESENTATION OR BECAUSE INJURY TO
CREDITORS WAS NOT SHOWN TO HAVE RESULTED FROM THEM, CF. PETERSON V.
TILLINGHAST, 192 F. 287; CUTLER V. FRY, 240 F. 238; FIRST STATE BANK V.
MORTON, 146 KY. 287, 293; 142 S.W. 694; QUINCY TRUST CO. V. WOODBURY,
1938 MASS. ADV.  SH. 475; 13 N.E.2D 377; AGRICULTURAL CREDIT CORP. V.
SCANDIA AMERICAN BANK, 184 MINN. 68; 237 N.W. 823.  BUT STATED MORE
PRECISELY, THE DOCTRINE WITH WHICH WE ARE NOW CONCERNED IS NOT STRICTLY
THAT OF ESTOPPEL AS THUS DEFINED.  IT IS A PRINCIPLE WHICH DERIVES ITS
FORCE FROM THE CIRCUMSTANCES THAT RESPONDENT'S ACT, APART FROM ITS
POSSIBLE INJURIOUS CONSEQUENCES TO CREDITORS, IS ITSELF A VIOLATION OF
THE STATUTE; AND THAT THE STATUTE, READ IN THE LIGHT OF ITS PURPOSES
AND POLICY, PRECLUDES RESORT TO THE VERY ACTS WHICH IT CONDEMNS, AS THE
MEANS OF THWARTING THOSE PURPOSES BY VISITING ON THE RECEIVER AND
CREDITORS WHOM HE REPRESENTS THE BURDEN OF THE BANK'S UNLAWFUL
PURCHASE.  PAULY V. O'BRIEN, 69 F. 460; NIBLACK V. FARLEY, 286 ILL.
536; 122 N.E. 160; IGLEHART V. TODD, SUPRA, 442; 178 N.E. 685; CEDAR
STATE BANK V. OLSON, 116 KAN. 320, 323; 226 P. 995; DENNY V. FISHTER,
SUPRA; PARKER V. PARKER, 287 MICH. 49; 282 N.W. 897; GERMAN-AMERICAN
FINANCE CORP. V. MERCHANTS' & MFRS.  STATE BANK, 177 MINN. 529; 225
N.W. 891; VALLELY V. DEVANEY, 49 N.D. 1107; 194 N.W. 903; BAY PARKWAY
NAT. BANK V. SHALOM, SUPRA; MOUNT VERNON TRUST CO. V. BERGOFF, 272 N.Y.
192, 196; 5 N.E.2D 196; PUTNAM V. CHASE, 106 ORE.  440; 212 P. 365. 
SEE SCHMID V. HAINES, 115 N.J.L. 271; 178 A. 801.  WILLISTON ON
CONTRACTS (REV. ED.)  SEC.  1632; ZOLLMAN, BANKS AND BANKING, SEC.
4783.    SINCE IT IS BY VIRTUE OF THE STATUTE THAT RESPONDENT'S
AGREEMENT IS UNLAWFUL AND THAT THE BENEFIT OF IT AS A DEFENSE TO THE
NOTE IS DENIED; AND AS THE PURPOSE OF THE STATUTE IS TO PROTECT
CREDITORS OF THE BANK FROM THE HAZARD OF VIOLATIONS OF THE ACT LIKE THE
PRESENT, IT IS IMMATERIAL THAT THE BANK'S OFFICERS WERE PARTICIPANTS IN
THE ILLEGAL TRANSACTION, TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S.
245; CITY OF MARION V. SNEEDEN, 291 U.S. 262; AWOTIN V. ATLAS EXCHANGE
NATIONAL BANK, 295 U.S. 209, OR THAT THE RECEIVER HAS NOT SHOWN THAT
THE CREDITORS HAVE BEEN DECEIVED OR SPECIFICALLY INJURED AS THE RESULT
OF THE ILLEGAL CONTRACT.  CF. MOUNT VERNON TRUST CO. V. BERGOFF, SUPRA,
196.  IT IS THE EVIL TENDENCY OF THE PROHIBITED ACTS AT WHICH THE
STATUTE IS AIMED, AND ITS AID, IN CONDEMNATION OF THEM, AND IN
PREVENTING THE CONSEQUENCES WHICH THE ACT WAS DESIGNED TO PREVENT, MAY
BE INVOKED BY THE RECEIVER REPRESENTING THE CREDITORS FOR WHOSE BENEFIT
THE STATUTE WAS ENACTED. 

RANKIN V. CITY NATIONAL BANK, 208 U.S. 541 AND DEITRICK V. STANDARD
SURETY CO., 303 U.S. 471, ON WHICH RESPONDENT RELIES, DO NOT CALL FOR
ANY DIFFERENT CONCLUSION.  BECAUSE OF CERTAIN STATEMENTS OBITER IN THE
OPINION IN THE RANKIN CASE, IT HAS BEEN TAKEN AS CONTROLLING IN A
NUMBER OF CASES RESEMBLING THE PRESENT, BY THE COURT OF APPEALS FOR THE
EIGHTH CIRCUIT,  FN3  AND IN ONE CASE IN THE SIXTH CIRCUIT.  FN4  IN
CASES ALREADY CITED, COURTS OF APPEALS IN OTHER CIRCUITS HAVE REACHED A
DIFFERENT CONCLUSION.  IT WAS TO RESOLVE THIS CONFLICT THAT WE GRANTED
CERTIORARI.  THE RANKIN CASE WAS TRIED BELOW AND DECIDED HERE UPON THE
CONCESSION OF COUNSEL THAT THE TRANSACTION INVOLVED WAS NOT ILLEGAL,
208 U.S. 547.  HERE IT IS THE REACH OF THE STATUTE MAKING RESPONDENT'S
ACTS ILLEGAL AND AFFORDING PROTECTION FROM THEM TO THE CREDITORS WHICH
GOVERNS OUR DECISION. 

IN THE DEITRICK CASE, SUIT WAS BROUGHT AGAINST A SURETY COMPANY, ON
ITS SURETY BONDS, BY A BANK'S RECEIVER NOT ALLEGED TO REPRESENT ANY
INNOCENT CREDITORS WHO WERE INJURED BECAUSE OF THEIR RELIANCE ON THE
BOND.  THE COMPANY'S AGENT, AS ALLEGED AND AS FOUND BY THE TWO COURTS
BELOW, HAD, TO THE KNOWLEDGE OF THE BANK'S PRESIDENT, EXECUTED AND
DELIVERED THE BONDS TO THE BANK WITHOUT CONSIDERATION AND WITHOUT THE
COMPANY'S KNOWLEDGE OR AUTHORITY, ALL IN COLLUSION WITH THE BANK'S
OFFICERS IN A FRAUDULENT CONSPIRACY TO DECEIVE THE BANK EXAMINER.  THE
COMPANY INSISTED THAT AS IT WAS THE INNOCENT VICTIM OF ITS AGENT'S
UNAUTHORIZED ACTS IN CARRYING OUT THE CONSPIRACY IT COULD NOT BE
CHARGED WITH RESPONSIBILITY FOR THEM ON THE THEORY OF ESTOPPEL OR OF
ITS OWN PARTICIPATION IN THE ILLEGAL TRANSACTION.  BECAUSE OF THIS
STATE OF THE PLEADINGS AND OF THE RECORD, THE COURT FOUND ITSELF UNABLE
TO HOLD THAT THE NATIONAL BANK ACT IMPOSED LIABILITY ON THE SURETY
COMPANY.  THE DECISION OF THIS COURT WAS RESTED SPECIFICALLY, AS WAS
THAT OF THE CIRCUIT COURT OF APPEALS BELOW, ON THE GROUND THAT THE
PLEADINGS HAD LIMITED THE RECEIVER'S DEMAND TO THE RIGHT OF THE BANK TO
RECOVER UPON THE BOND PROCURED BY THE FRAUD OF ITS OFFICERS.  THIS WAS
SHOWN, THE COURT DECLARED, BY THE FAILURE OF THE PLEADINGS TO ALLEGE
ANY WRONGFUL ACT FOR WHICH THE COMPANY WAS CHARGEABLE OR WHICH WAS
INJURIOUS TO CREDITORS.  IT SAID, PAGE 480, THAT THE RECEIVER "MAKES NO
SUGGESTION OF A PURPOSE ATTRIBUTABLE TO THE COMPANY TO MISLEAD
CREDITORS OR OTHERS, MAKES NO ALLEGATIONS OF DAMAGE EXCEPT THAT
SUSTAINED BY THE BANK.  HE SETS UP NO FACTS WHICH COULD RENDER
UNCONSCIONABLE A DENIAL OF LIABILITY UPON THE BOND BECAUSE OF THE
AGENT'S FRAUD OBVIOUSLY INDUCED BY THE PRESIDENT OF THE BANK."  WE DID
NOT DECIDE THAT IN AN ACTION AGAINST ONE WHO, LIKE RESPONDENT, IS
ALLEGED AND PROVED TO BE A PARTICIPANT IN THE ILLEGAL TRANSACTION, HE
CAN BE HEARD TO SET UP THE DEFENSE OF HIS ILLEGAL ACTION TO DEFEAT THE
STATUTORY POLICY AIMED AT THE PROTECTION OF CREDITORS. 

A POINT MUCH DISCUSSED IN BRIEF AND ARGUMENT, UPON THE ASSUMPTION
THAT LOCAL LAW WILL GUIDE OUR DECISION, SEE ERIE R. CO. V. TOMPKINS,
304 U.S. 64, IS WHETHER, BY MASSACHUSETTS LAW RESPONDENT IS PRECLUDED
FROM SETTING UP THE ILLEGALITY OF THE TRANSACTION AS A DEFENSE TO HIS
NOTE.  BUT IT IS THE FEDERAL STATUTE WHICH CONDEMNS AS UNLAWFUL
RESPONDENT'S ACTS.  THE EXTENT AND NATURE OF THE LEGAL CONSEQUENCES OF
THIS CONDEMNATION, THOUGH LEFT BY THE STATUTE TO JUDICIAL
DETERMINATION, ARE NEVERTHELESS TO BE DERIVED FROM IT AND THE FEDERAL
POLICY WHICH IT HAS ADOPTED, SEE, BOARD OF COUNTY COMMISSIONERS OF
JACKSON COUNTY V. UNITED STATES, 308 U.S. 343, AND CASES CITED.  WE
HAVE RECENTLY HELD THAT THE JUDICIAL DETERMINATION OF THE LEGAL
CONSEQUENCES WHICH FLOW FROM ACTS CONDEMNED AS UNLAWFUL BY THE NATIONAL
BANK ACT INVOLVES DECISION OF A FEDERAL, NOT A STATE QUESTION.  AWOTIN
V. ATLAS EXCHANGE NATIONAL BANK, SUPRA.  REVERSED. 

FN1  "NO ASSOCIATION SHALL MAKE ANY LOAN OR DISCOUNT ON THE SECURITY
OF THE SHARES OF ITS OWN CAPITAL STOCK, NOR BE THE PURCHASER OR HOLDER
OF ANY SUCH SHARES, UNLESS SUCH SECURITY OR PURCHASE SHALL BE NECESSARY
TO PREVENT LOSS UPON A DEBT PREVIOUSLY CONTRACTED IN GOOD FAITH; AND
STOCK SO PURCHASED OR ACQUIRED SHALL, WITHIN SIX MONTHS FROM THE TIME
OF ITS PURCHASE, BE SOLD OR DISPOSED OF AT PUBLIC OR PRIVATE SALE; OR,
IN DEFAULT THEREOF, A RECEIVER MAY BE APPOINTED TO CLOSE UP THE
BUSINESS OF THE ASSOCIATION, ACCORDING TO SECTION FIFTY-TWO HUNDRED AND
THIRTY-FOUR (12 U.S.C. SEC. 192)." 

FN2  IN A NUMBER OF CASES IT HAS BEEN HELD THAT THE INDIRECT BENEFIT
OF THE TRANSACTION TO THE OBLIGOR AS A CREDITOR OR SHAREHOLDER OF THE
BANK IS SUFFICIENT CONSIDERATION TO SUPPORT RECOVERY.  SEE NEW V. PAGE,
144 MD. 606; 125 A. 403; HURD V. KELLEY, 78 N.Y. 588; STATE EX REL.
LATTANNER V. HILLS, 94 OHIO ST. 171; 113 N.E. 1045; FIRST NATIONAL BANK
V. BOXLEY, 129 OKLA. 159; 264 P. 184; ARTHUR V. BROWN, 91 S.C. 316; 74
S.E. 652.  BUT WHETHER THE LIABILITY IS SUSTAINED ON THIS GROUND OR
THAT OF ESTOPPEL IT IS APPARENT THAT THE STATUTORY POLICY OF PROTECTION
TO CREDITORS UNDERLIES BOTH.  SEE BRANNAN, NEGOTIABLE INSTRUMENTS LAW
(6TH ED.)  459. 

FN3  YATES CENTER NATIONAL BANK V. SCHAEDE, 240 F. 240, 241; HOOKWAY
V. FIRST NATIONAL BANK, 36 F.2D 166; ANDRESEN V. KAERCHER, 38 F.2D
462.  CF. CUTLER V. FRY, 240 F. 238; KEYES V. FIRST NATIONAL BANK OF
ABERDEEN, 20 F.2D 678. 

FN4  PETERSON V. TILLINGHAST, 192 F. 287. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE ROBERTS, DISSENTING: 

I THINK THE JUDGMENT SHOULD BE AFFIRMED ON THE AUTHORITY OF DEITRICK
V. STANDARD SURETY & CASUALTY CO., 303 U.S. 471, DECIDED MARCH 28,
1938.  THAT CASE FOLLOWED AND REAFFIRMED THE PRINCIPLE ANNOUNCED IN
RANKIN V. CITY NATIONAL BANK, 208 U.S. 541, THAT WHERE THE RECEIVER OF
A NATIONAL BANK SUES TO RECOVER ON A CHOSE IN ACTION WHICH WAS AN ASSET
OF THE BANK, HIS RIGHTS RISE NO HIGHER THAN THOSE OF THE BANK, EVEN
THOUGH THE OBLIGATION WAS GIVEN TO DECEIVE CREDITORS OR THE BANK
EXAMINER.  THE DOCTRINE OF THE RANKIN CASE HAS BEEN APPLIED IN SUITS BY
RECEIVERS OF NATIONAL BANKS FOR MORE THAN THIRTY YEARS.  FN1 

DEITRICK V. STANDARD SURETY & CASUALTY COMPANY IS ON ALL FOURS WITH
THE PRESENT CASE.  THERE THE VERY ARGUMENTS AND AUTHORITIES NOW RELIED
UPON AND CITED ON BEHALF OF THIS PETITIONER WERE PRESSED WITHOUT
AVAIL. 

IN THE EARLIER CASE THE SAME RECEIVER BROUGHT ACTIONS AT LAW TO
RECOVER ON SURETY BONDS AS ASSETS OF THE BANK.  THE FACTS WERE THAT THE
BANK HELD WORTHLESS NOTES, KNOWN TO ITS PRESIDENT TO BE SUCH.  TO GIVE
A FALSE APPEARANCE OF WORTH TO THESE ASSETS HE CONSPIRED WITH THE AGENT
OF A SURETY COMPANY TO PROCURE SURETY BONDS GUARANTEEING PAYMENT OF THE
NOTES, TO BE USED AS "WINDOW DRESSING" AND TO BE SHOWN TO THE BANK
EXAMINERS IF THEY SHOULD ASK TO SEE THE COLLATERAL FOR THE NOTES.  THE
BANK WAS AFTERWARDS EXAMINED AND, AS A RESULT OF THE EXAMINERS' REPORT,
ADDITIONAL CAPITAL WAS SUBSCRIBED.  WE MAY ASSUME THEY SAW THE BONDS. 
THE BANK REMAINED OPEN FOR A PERIOD AND DEPOSITS CONTINUED TO BE MADE. 
LATER THE COMPTROLLER DETERMINED THE BANK WAS INSOLVENT AND A RECEIVER
WAS APPOINTED. 

IN HIS DECLARATION IN EACH ACTION THE RECEIVER ALLEGED HIS
APPOINTMENT, RECITED THE EXECUTION AND DELIVERY OF THE SURETY BOND TO
THE BANK AND ATTACHED A COPY OF IT.  HE ALLEGED THAT THE NOTE OR NOTES
IN QUESTION IN EACH CASE WAS OR WERE IN DEFAULT AND THAT THE SURETY WAS
LIABLE ACCORDING TO THE TERMS OF ITS BOND.  THE SURETY COMPANY ANSWERED
IN EACH CASE SETTING UP THAT NO CONSIDERATION WAS PAID FOR THE GIVING
OF THE BOND AND THAT IT WAS AGREED AND UNDERSTOOD THAT NO LIABILITY WAS
TO ENSUE FROM THE EXECUTION AND DELIVERY.  FN2 

THE DISTRICT COURT ENTERED JUDGMENT FOR THE SURETY COMPANY AND THE
CIRCUIT COURT OF APPEALS AFFIRMED.  FN3  THAT COURT, AFTER STATING THAT
THE KNOWLEDGE OF THE PRESIDENT WAS THE KNOWLEDGE OF THE BANK, HELD THAT
THE RECEIVER WAS NOT AN AGENT OF THE BANK'S CREDITORS; THAT HE STOOD IN
NO BETTER POSITION THAN THE BANK; THAT ALL DEFENSES OPEN TO THE SURETY
COMPANY AS AGAINST THE BANK WERE OPEN AS AGAINST THE RECEIVER; THAT THE
SUIT WAS MERELY ONE TO RECOVER ASSETS OF THE BANK AND THAT THE
DECLARATIONS STATED NO CAUSE OF ACTION OTHER THAN THAT ARISING FROM THE
CONTRACT OF SURETYSHIP.  THE COURT CALLED ATTENTION TO THE FACT THAT
THE PLEADINGS CONTAINED NO ALLEGATION THAT THE RECEIVER BASED HIS
ACTION ON ANY ALLEGED DECEPTION OF, OR INJURY TO, CREDITORS OF THE BANK
AND NO ALLEGATION THAT THE RECEIVER WAS SUING ON BEHALF OF CREDITORS,
AND HELD THAT, UPON THE PLEADINGS, IT WAS NOT OPEN TO THE RECEIVER TO
URGE THAT HE REPRESENTED CREDITORS.  IT REFUSED TO DECIDE WHETHER, ON
DIFFERENT PLEADINGS, THE RECEIVER COULD RECOVER IF HE ALLEGED AND
PROVED INJURY RESULTING TO CREDITORS FROM THE TRANSACTION. 

THIS COURT AFFIRMED THE JUDGMENT ON THE GROUNDS STATED BY THE COURT
BELOW, CITING AND RELYING ON RANKIN V. CITY NATIONAL BANK, SUPRA. 

THE SURETY ALSO PLEADED THAT ITS AGENT HAD EXCEEDED HIS AUTHORITY IN
ISSUING THE BONDS, AS THE BANK'S PRESIDENT KNEW.  THE CIRCUIT COURT OF
APPEALS DID NOT PASS UPON THIS DEFENSE, SINCE IT HELD THE RECEIVER
COULD NOT RECOVER EVEN IF THE SURETY COMPANY HAD AUTHORIZED THE GIVING
OF THE BONDS.  IN THE OPINION OF THIS COURT, THE SURETY'S CONTENTION
THAT IT WAS NOT BOUND BY ITS AGENT'S UNAUTHORIZED ACT WAS MENTIONED BUT
WAS NOT CONSIDERED OR DISCUSSED AS A GROUND OF DECISION.  THE SOLE
BASIS OF THE DECISION IS STATED AS FOLLOWS: 

"AN EXAMINATION OF THE PLEADINGS MAKES IT QUITE CLEAR THAT THE
RECEIVER UNDERTOOK TO SET UP RIGHTS ACQUIRED BY THE INSOLVENT BANK
THROUGH DULY EXECUTED CONTRACTS BETWEEN IT AND THE SURETY COMPANY.  HE
MAKES NO SUGGESTION OF A PURPOSE ATTRIBUTABLE TO THE COMPANY TO MISLEAD
CREDITORS OR OTHERS; MAKES NO ALLEGATIONS OF DAMAGE EXCEPT THAT
SUSTAINED BY THE BANK.  HE SETS UP NO FACTS WHICH WOULD RENDER
UNCONSCIONABLE A DENIAL OF LIABILITY UPON THE BOND BECAUSE OF THE
AGENT'S FRAUD OBVIOUSLY INDUCED BY THE PRESIDENT OF THE BANK.  IN THIS
STATE OF THE PLEADINGS THE RECEIVER MAY NOT HAVE JUDGMENT; HE CANNOT
RELY ON SOMETHING NOT COMPLAINED OF, NOR CAN HE HAVE DAMAGES BECAUSE OF
SUPPOSED DECEPTIONS WHICH THE PLEADINGS FAIL TO SUGGEST." 

AFTER SO STATING THE COURT REFERS TO THE RANKIN CASE AND SAYS:  "WE
ADHERE TO THE DOCTRINE THERE APPROVED AND REGARD IT AS DECISIVE OF THE
PRESENT CAUSE." 

TURNING TO THE INSTANT CASE, THE FACTS ARE THESE:  THE BANK HAD
ACQUIRED SHARES OF ITS OWN STOCK ILLEGALLY.  SUCH SHARES, SO HELD, WERE
INADMISSIBLE ASSETS.  THE BANK'S PRESIDENT, KNOWING THAT SUCH
ACQUISITION OF ITS OWN STOCK WAS AN ILLEGAL DISSIPATION OF ITS CAPITAL,
WORKED OUT AN OSTENSIBLE SALE OF THE STOCK FOR A NOTE WHICH IT WAS
UNDERSTOOD WAS TO BE PLACED AMONGST THE ASSETS OF THE BANK FOR THE
PURPOSE OF DECEIVING THE EXAMINERS.  THE NOTE WAS WITHOUT CONSIDERATION
AND THE UNDERSTANDING WAS THAT IT WOULD NOT BE COLLECTED.  IT WAS, OF
COURSE, UNENFORCEABLE BY THE BANK.  SUBSEQUENTLY DEPOSITS WERE MADE IN
THE BANK.  IT DOES NOT APPEAR THAT THE EXAMINERS SAW THE NOTE.  AFTER
THE COMPTROLLER HAD FOUND THE BANK INSOLVENT AND APPOINTED A RECEIVER,
THAT OFFICER FILED A BILL AGAINST THE MAKER OF THE NOTE, FIRST, TO
COLLECT AN ASSESSMENT FROM HIM AS OWNER OF THE STOCK AND, SECOND, TO
RECOVER THE FACE AMOUNT OF THE NOTE, WITH INTEREST.  IN THIS BILL HE
ALLEGED HIS APPOINTMENT AS RECEIVER, THE ACQUISITION OF THE STOCK BY
THE BANK, AND THE PLACING OF IT IN STRAW NAMES, THE GIVING OF THE NOTE
FOR THE PURCHASE PRICE OF THE STOCK; AND CLAIMED "THE UNPAID PRINCIPAL
AMOUNT OF SAID NOTE  ...  TOGETHER WITH INTEREST THEREON, IS DUE THE
PLAINTIFF ...  "  HIS PRAYERS WERE FOR A DECREE FOR THE AMOUNT OF THE
ASSESSMENT AND FOR THE PRINCIPAL AMOUNT, WITH INTEREST, OF THE NOTE. 

THE ANSWER OUTLINED THE TRUE TRANSACTION, ASSERTED THAT THE
DEFENDANT'S NOTE WAS AN ACCOMMODATION NOTE, THAT NO CONSIDERATION
PASSED FOR IT, AND THERE COULD, THEREFORE, BE NO RECOVERY UPON IT. 

THE DISTRICT COURT ENTERED A DECREE FOR THE AMOUNT OF THE ASSESSMENT
AND FOR THE PRINCIPAL OF THE NOTE WITH INTEREST.  THE CIRCUIT COURT
AFFIRMED AS TO THE ASSESSMENT BUT REVERSED THE JUDGMENT UPON THE NOTE. 

HERE, AS IN THE EARLIER CASE, THERE WAS NO ALLEGATION THAT ANY
CREDITORS WERE DECEIVED; NONE OF ANY LOSS TO THE CREDITORS RESULTING
FROM THE GIVING OF THE NOTE; NONE THAT THE RECEIVER SUED ON BEHALF OF
CREDITORS, AND NO CAUSE OF ACTION ASSERTED SAVE ONE TO RECOVER UPON THE
NOTE AS AN ASSET OF THE BANK.  HERE, AS IN THE EARLIER CASE, THE
RECEIVER HAS URGED UPON THIS COURT THAT HE DOES REPRESENT CREDITORS;
THAT THE PUBLIC POLICY EVIDENCED BY THE NATIONAL BANK ACT DISABLES THE
DEFENDANT, IN VIEW OF THE INTENDED DECEPTION, FROM ASSERTING THE LACK
OF CONSIDERATION FOR THE NOTE.  HERE, IN CONTRAST TO THE EARLIER CASE,
THE COURT ACCEPTS THE VIEW WHICH WAS THERE REJECTED BECAUSE NOT WITHIN
THE ISSUES TENDERED.    IN DEITRICK V. STANDARD SURETY & CASUALTY CO.,
SUPRA, THE RECEIVER URGED UPON THIS COURT THE VERY CONTENTIONS WHICH HE
AGAIN ADVANCED IN THE INSTANT CASE; CITED IN SUPPORT OF THOSE
CONTENTIONS NUMEROUS AUTHORITIES WHICH HE NOW CITES, WHICH ARE RELIED
UPON IN THE OPINION NOW ANNOUNCED; SOUGHT TO HAVE THIS COURT ADOPT THE
PROPOSITION, NOW AFFIRMED BY THE OPINION IN THE PRESENT CASE, THAT THE
DEFENDANT WAS LIABLE ON THE SURETY BOND BECAUSE OF THE PUBLIC POLICY
EVIDENCED IN THE NATIONAL BANK ACT WHICH, BROADLY SPEAKING, ESTOPPED
THE SURETY TO SET UP, AS AGAINST THE RECEIVER, APPOINTED PURSUANT TO
THE NATIONAL BANKING LAW, A WRONG AGAINST THAT LAW IN WHICH IT HAD
PARTICIPATED.  FN4  HIS CONTENTIONS WERE HELD TO BE UNAVAILING IN VIEW
OF THE CAUSE OF ACTION HE HAD PLEADED. 

IN VIEW OF WHAT HAS BEEN SAID, IT IS APPARENT THAT, UNDER THE GUISE
OF DISTINGUISHING THE EARLIER CASE, THE COURT IN FACT OVERRULES IT. 

FN1  PETERSON V. TILLINGHAST, 192 F. 287, 289; SKUD V. TILLINGHAST,
195 F. 1, 5; CUTLER V. FRY, 240 F. 238; YATES CENTER NATIONAL BANK V.
SCHAEDE, 240 F. 240; KEYES V. FIRST NATIONAL BANK, 20 F.2D 678, 686;
HOOKWAY V. FIRST NATIONAL BANK, 36 F.2D 166, 170; KAERCHER V. CITIZENS'
NATIONAL BANK, 57 F.2D 58; VARDEN V. FIRST CHRISTIAN CHURCH, 13
F.SUPP.  159, 161; DRAKE V. MOORE, 14 F.SUPP.  89, 90; SEABORN V. RENO
NATIONAL BANK, 20 F.SUPP.  835, 838; FEDERAL DEPOSIT INS. CORP. V.
PENDLETON, 29 F.SUPP.  779, 781. 

FN2  THE SURETY COMPANY ALSO FILED BILLS SEEKING CANCELLATION OF EACH
OF THE BONDS AND, IN HIS ANSWERS, THE RECEIVER REITERATED HIS AVERMENT
THAT THE SURETY COMPANY OWED HIM THE AMOUNTS STIPULATED IN THE BONDS,
AND ASKED JUDGMENT FOR SUCH AMOUNTS. 

FN3  90 F.2D 862. 

FN4  OUT OF SIXTY-EIGHT PAGES OF ARGUMENT IN PETITIONER'S BRIEF
THIRTY-NINE WERE DEVOTED TO THIS CONTENTION; AND EVERY PROPOSITION NOW
RELIED UPON TO SUSTAIN THE CONCLUSION OF THE COURT WAS ADVANCED IN THAT
BRIEF. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS OPINION. 
..END :










LABOR BOARD V. WATERMAN S.S. CO., 309 U.S. 206 


NO. 193.  ARGUED JANUARY 3, 1940.  - DECIDED FEBRUARY 12, 1940.  - 103
F.2D 157, REVERSED. 


1.  CERTIORARI GRANTED TO DETERMINE WHETHER THERE WAS SUBSTANTIAL
EVIDENCE TO SUSTAIN AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
WHICH THE COURT BELOW DECLINED TO ENFORCE AS BASED ON MERE SUSPICION. 
PP. 207-209. 

2.  THE REQUIREMENT OF THE ACT THAT "THE FINDINGS OF THE BOARD, AS TO
THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL  ...  BE CONCLUSIVE," MUST
BE SCRUPULOUSLY OBEYED BY THE COURTS.  P. 208. 

3.  AN EMPLOYER-EMPLOYEE RELATIONSHIP WITHIN THE SCOPE OF THE
NATIONAL LABOR RELATIONS ACT MAY SUBSIST THROUGH MUTUAL UNDERSTANDING
BETWEEN THE OWNER OF A VESSEL AND MEMBERS OF ITS CREW AFTER ITS RETURN
FROM A FOREIGN VOYAGE AND AFTER THE CREW, APPEARING WITH THE MASTER
BEFORE A SHIPPING COMMISSIONER, HAVE BEEN PAID OFF AND "DISCHARGED" AND
HAVE EXECUTED WITH THE MASTER A MUTUAL RELEASE OF "ALL CLAIMS FOR WAGES
IN RESPECT OF PAST VOYAGE OR ENGAGEMENT," AS PROVIDED BY 46 U.S.C.
SECS. 564, 641, 644.  P. 211. 

4.  A CONTRACT BETWEEN AN EMPLOYER AND A LABOR UNION FOR PREFERENTIAL
TREATMENT OF THE LATTER IN FILLING VACANCIES HELD NOT TO REQUIRE THE
FORMER TO DISCHARGE EMPLOYEES BECAUSE OF THEIR HAVING JOINED ANOTHER
UNION.  P. 213. 

5.  IN FORBIDDING AN EMPLOYER TO TERMINATE AN EMPLOYEE'S TENURE OF
EMPLOYMENT OR ANY TERM OR CONDITION OF EMPLOYMENT BECAUSE OF UNION
ACTIVITY OR AFFILIATION, SEC. 8(1)(3) OF THE LABOR ACT EMBRACES ALL
ELEMENTS OF THE EMPLOYMENT RELATIONSHIP WHICH IN FACT CUSTOMARILY
ATTEND EMPLOYMENT AND WITH RESPECT TO WHICH AN EMPLOYER'S
DISCRIMINATION MAY AS READILY BE THE MEANS OF INTERFERING WITH
EMPLOYEES' RIGHT OF SELF-ORGANIZATION AS IF THESE ELEMENTS WERE PRECISE
TERMS OF A WRITTEN CONTRACT OF EMPLOYMENT.  P. 218. 

6.  FOR THE PURPOSE OF THE ACT, IT IS IMMATERIAL THAT EMPLOYMENT IS
AT WILL AND TERMINABLE AT ANY TIME BY EITHER PARTY.  P. 219. 

7.  THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDINGS OF THE
BOARD: 

(1) THAT, BY CUSTOM RECOGNIZED BY THE RESPONDENT SHIP COMPANY, CREWS
OF SHIPS RETURNED FROM ABROAD, NOTWITHSTANDING EXPIRATION OF THEIR
SHIPPING ARTICLES, HAVE, UNLESS DISCHARGED FOR CAUSE, A CONTINUING
TENURE OR RELATIONSHIP WITH THEIR EMPLOYER ENTITLING THEM TO RE-SIGN
FOR FUTURE VOYAGES.  P. 213. 

(2)  THAT THE EMPLOYMENT OR "TENURE" OF CREWS AND OF TWO LICENSED
OFFICERS WAS TERMINATED BECAUSE OF THEIR AFFILIATIONS WITH A UNION
OTHER THAN THAT WITH WHICH THE EMPLOYER HAD MADE A PREFERENTIAL
CONTRACT.  P. 220. 

(3)  THAT PENDING AN ELECTION DIRECTED BY THE BOARD TO PERMIT THE
SHIPS' CREWS TO SELECT THEIR BARGAINING AGENCIES, THE EMPLOYER HAD
INTERFERED WITH ITS EMPLOYEES' FREE RIGHT TO SELECT A UNION OF THEIR
OWN CHOOSING UNDER SEC. 7 OF THE ACT BY REFUSING TO GRANT SHIPS' PASSES
TO REPRESENTATIVES OF THE RIVAL UNION, WHILE AT THE SAME TIME ISSUING
PASSES TO REPRESENTATIVES OF THE UNION HAVING THE PREFERENTIAL
CONTRACT.  P. 224. 

NATIONAL LABOR RELATIONS BOARD V. WATERMAN STEAMSHIP CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 308 U.S. 534, TO REVIEW A DECISION DECLINING TO ENFORCE
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD AND SETTING IT ASIDE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE COURT BELOW, UPON PETITION OF RESPONDENT TO SET ASIDE AN ORDER OF
THE LABOR BOARD, DECIDED THAT THE BOARD'S ORDER WAS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE, SAID THE ORDER WAS BASED ON MERE SUSPICION, AND
DECLINED TO ENFORCE IT.  WHETHER THE COURT PROPERLY REACHED THAT
CONCLUSION IS THE SINGLE QUESTION HERE. 

WE DO NOT ORDINARILY GRANT CERTIORARI TO REVIEW JUDGMENTS BASED
SOLELY ON QUESTIONS OF FACT.  IN ITS PETITION, HOWEVER, THE BOARD
EARNESTLY CONTENDED THAT THE RECORD BEFORE THE COURT OF APPEALS HAD
PRESENTED "CLEAR AND OVERWHELMING PROOF" THAT THE WATERMAN STEAMSHIP
COMPANY HAD BEEN GUILTY OF A MOST FLAGRANT MASS DISCRIMINATION AGAINST
ITS EMPLOYEES IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT, AND
THAT THE COURT HAD UNWARRANTEDLY INTERFERED WITH THE EXCLUSIVE
JURISDICTION GRANTED THE BOARD BY CONGRESS.  THE BOARD'S PETITION ALSO
CHARGED THAT THE PRESENT WAS ONE OF A SERIES OF DECISIONS IN WHICH THE
COURT BELOW HAD FAILED "TO GIVE EFFECT TO THE PROVISION OF THE ACT THAT
THE FINDINGS OF THE BOARD AS TO FACTS, IF SUPPORTED BY EVIDENCE, SHALL
BE CONCLUSIVE."  FN1 

IN THAT ACT, CONGRESS PROVIDED, "THE FINDINGS OF THE BOARD AS TO THE
FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE."  FN2  IT IS OF
PARAMOUNT IMPORTANCE THAT COURTS NOT ENCROACH UPON THIS EXCLUSIVE POWER
OF THE BOARD IF EFFECT IS TO BE GIVEN THE INTENTION OF CONGRESS TO
APPLY AN ORDERLY, INFORMED AND SPECIALIZED PROCEDURE TO THE COMPLEX
ADMINISTRATIVE PROBLEMS ARISING IN THE SOLUTION OF INDUSTRIAL
DISPUTES.  AS IT DID IN SETTING UP OTHER ADMINISTRATIVE BODIES,
CONGRESS HAS LEFT QUESTIONS OF LAW WHICH ARISE BEFORE THE BOARD - BUT
NOT MORE - ULTIMATELY TO THE TRADITIONAL REVIEW OF THE JUDICIARY.  NOT
BY ACCIDENT, BUT IN LINE WITH A GENERAL POLICY, CONGRESS HAS DEEMED IT
WISE TO ENTRUST THE FINDING OF FACTS TO THESE SPECIALIZED AGENCIES.  IT
IS ESSENTIAL THAT COURTS REGARD THIS DIVISION OF RESPONSIBILITY WHICH
CONGRESS AS A MATTER OF POLICY HAS EMBODIED IN THE VERY STATUTE FROM
WHICH THE COURT OF APPEALS DERIVED ITS JURISDICTION TO ACT.  AND
THEREFORE CHARGES BY PUBLIC AGENCIES CONSTITUTIONALLY CREATED - SUCH AS
THE BOARD - THAT THEIR DULY CONFERRED JURISDICTION HAS BEEN INVADED SO
THAT THEIR STATUTORY DUTIES CANNOT BE EFFECTIVELY FULFILLED, RAISE
QUESTIONS OF HIGH IMPORTANCE.  FOR THIS REASON WE GRANTED CERTIORARI. 
FN3 

RESPONDENT, WATERMAN STEAMSHIP COMPANY, OF MOBILE, ALABAMA, IS
ENGAGED IN MARITIME TRANSPORTATION BETWEEN THIS COUNTRY, EUROPE, AND
THE WEST INDIES.  UPON COMPLAINT MADE BY THE NATIONAL MARITIME UNION, A
LABOR ORGANIZATION AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL
ORGANIZATION, THE BOARD HELD HEARINGS AND FOUND THAT RESPONDENT HAD, AT
MOBILE, LAID UP THE SHIPS "BIENVILLE" (27 DAYS) AND "FAIRLAND" (7 DAYS)
FOR DRY-DOCKING AND REPAIRS, AND HAD, IN VIOLATION OF THE NATIONAL
LABOR RELATIONS ACT: 

(A)  DISCHARGED AND REFUSED TO REINSTATE, BECAUSE OF MEMBERSHIP IN
THE N.M.U., THE ENTIRE UNLICENSED CREW AND THE CHIEF STEWARD, EDMUND J.
PELLETIER, OF THE STEAMSHIP "BIENVILLE," AND ALL BUT THREE OF THE CREW
OF THE STEAMSHIP "FAIRLAND"; 

(B)  DISCHARGED AND REFUSED TO REINSTATE C.J. O'CONNOR, SECOND
ASSISTANT ENGINEER OF THE "AZALEA CITY" BECAUSE OF HIS ACTIVITIES IN
REPRESENTING AGGRIEVED MEMBERS OF THE MARINE ENGINEERS BENEFICIAL
ASSOCIATION, A LABOR ORGANIZATION OF LICENSED SHIP PERSONNEL AFFILIATED
WITH THE C.I.O.; 

(C)  AND, PENDING AN ELECTION DIRECTED BY THE BOARD TO PERMIT THE
SHIPS' CREWS TO SELECT THEIR BARGAINING AGENCIES, HAD INTERFERED WITH
ITS EMPLOYEES' FREE RIGHT TO SELECT A UNION OF THEIR OWN CHOOSING UNDER
SEC. 7 OF THE ACT BY REFUSING TO GRANT SHIPS' PASSES TO REPRESENTATIVES
OF THE C.I.O. AFFILIATE, WHILE AT THE SAME TIME ISSUING PASSES TO
REPRESENTATIVES OF THE INTERNATIONAL SEAMEN'S UNION AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR.  FN4 

THE BOARD'S ORDER IN QUESTION WAS BASED ON THE FOREGOING FINDINGS. 

A CLEAR UNDERSTANDING OF THE ISSUES PRESENTED BY THE MASS DISCHARGE
OF THE CREWS OF THE "BIENVILLE" AND THE "FAIRLAND" NECESSITATES INITIAL
REFERENCE TO THE FEDERAL LAWS GOVERNING ENGAGEMENT OF SEAMEN FOR
FOREIGN VOYAGES.  THERE IS PROVISION, 46 U.S.C. 564, THAT A MASTER OF
ANY VESSEL BOUND FROM THE UNITED STATES TO FOREIGN PORTS (WITH
EXCEPTIONS NOT PERTINENT) "SHALL, BEFORE HE PROCEEDS ON SUCH VOYAGE,
MAKE AN AGREEMENT, IN WRITING OR IN PRINT, WITH EVERY SEAMAN WHOM HE
CARRIES TO SEA AS ONE OF THE CREW  ...  "  THIS WRITTEN AGREEMENT,
COMMONLY REFERRED TO IN MARITIME CIRCLES AS ARTICLES, MUST SPECIFY THE
NATURE AND DURATION OF THE INTENDED VOYAGE OR ENGAGEMENT; THE PORT OR
COUNTRY AT WHICH THE VOYAGE WILL TERMINATE; THE NUMBER AND DESCRIPTION
OF THE CREW AND THEIR EMPLOYMENTS; THE TIME EACH SEAMAN MUST BE ON
BOARD TO BEGIN WORK AND THE CAPACITY IN WHICH HE IS TO SERVE; WAGES;
PROVISIONS TO BE FURNISHED EACH SEAMAN; REGULATIONS TO WHICH THE SEAMAN
WILL BE SUBJECTED ON BOARD SUCH AS FINES, SHORT ALLOWANCE OF PROVISIONS
OR OTHER LAWFUL PUNISHMENTS FOR MISCONDUCT; AND STIPULATIONS OF ANY
ADVANCE AND ALLOTMENT OF THE SEAMAN'S WAGES.  AND THE PROVISIONS OF 46
U.S.C. 567-8 IMPOSE PENALTIES FOR CARRYING SEAMEN IN SHIPS' CREWS ON
FOREIGN VOYAGES WITHOUT ENTERING INTO THE REQUIRED ARTICLES.  ALL
SEAMEN "DISCHARGED IN THE UNITED STATES FROM MERCHANT VESSELS ENGAGED
IN VOYAGES  ...  TO ANY FOREIGN PORT  ...  SHALL BE DISCHARGED AND
RECEIVE THEIR WAGES IN THE PRESENCE OF A DULY AUTHORIZED SHIPPING
COMMISSIONER ...  "  ID. 641.  THE MASTER AND EACH SEAMAN SHALL "IN THE
PRESENCE OF THE SHIPPING COMMISSIONER, ...  SIGN A MUTUAL RELEASE OF
ALL CLAIMS FOR WAGES IN RESPECT OF THE PAST VOYAGE OR ENGAGEMENT"; THE
RELEASE MUST BE RECORDED IN A BOOK WHICH SHALL BE KEPT BY THE
COMMISSIONER, AND SUCH RELEASE "SHALL OPERATE AS A MUTUAL DISCHARGE AND
SETTLEMENT OF ALL DEMANDS FOR WAGES BETWEEN THE PARTIES ...  , ON
ACCOUNT OF WAGES, IN RESPECT OF THE PAST VOYAGE OR ENGAGEMENT."  ID.,
644. 

RESPONDENT, THE WATERMAN COMPANY, HAS TAKEN THE POSITION THAT WHEN
THE CREWS OF THE "BIENVILLE" AND "FAIRLAND" RECEIVED THEIR WAGES AND
SIGNED OFF STATUTORY ARTICLES IN MOBILE, ALL TENURE OF EMPLOYMENT AND
EMPLOYMENT RELATIONSHIP OF THESE MEN WERE AT AN END.  FROM THIS
PREMISE, THE COMPANY INSISTS THAT VACANCIES WERE CREATED AS THE MEN
SIGNED OFF AND, UNDER AN OUTSTANDING CONTRACT WITH THE I.S.U.,
PREFERENCE IN FILLING THESE VACANCIES HAD TO BE GIVEN TO MEMBERS OF THE
I.S.U. UNLESS CONTRACTUAL OBLIGATIONS WERE TO BE VIOLATED.  FN5
HOWEVER, THE BOARD CONTENDS THAT THE SIGNING OFF OF ARTICLES WHEN THE
SHIP'S VOYAGE ENDED AT MOBILE SERVED ONLY TO END EMPLOYMENT "IN RESPECT
OF THE PAST VOYAGE OR ENGAGEMENT" AND, THEREFORE, IT PROCEEDED TO
EXAMINE THE EVIDENCE TO DETERMINE WHETHER THERE WAS, AFTER COMPLETION
OF THE VOYAGES IN QUESTION OF THE "BIENVILLE" AND "FAIRLAND," A
CONTINUING RELATIONSHIP, TENURE, TERM OR CONDITION OF EMPLOYMENT
BETWEEN THE COMPANY AND ITS MEN.  THE ACT PROVIDES  FN6  THAT 

"IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER - TO INTERFERE
WITH  ...  (THE EMPLOYEES' RIGHT OF SELFORGANIZATION). 

     .         .         .         .  . 

"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:  ..." 

THE PROTECTION TO SEAMEN EMBODIED IN THE FEDERAL STATUTES WHICH HAVE
BEEN REFERRED TO HAS EXISTED IN SOME FORM SINCE THE EARLIEST DAYS OF
THE NATION.  FN7  THIS STATUTORY PLAN WAS NEVER INTENDED TO FORBID THE
PARTIES FROM MUTUALLY UNDERTAKING TO ASSURE A CREW THE RIGHT TO
CONTINUE AS EMPLOYEES AND TO RE-SIGN IF IT DESIRES AFTER SIGNING OFF
ARTICLES AT A VOYAGE'S END.  THE DESIGN WAS TO PROTECT SEAMEN FROM
BEING CARRIED TO SEA AGAINST THEIR WILL; TO PREVENT MISTREATMENT AS TO
WAGES AND TO ASSURE AGAINST HARSH APPLICATION OF THE IRON LAW OF THE
SEA DURING VOYAGES.  FN8  THE BOARD, THEREFORE, PROPERLY HEARD EVIDENCE
AS TO WHETHER THE CREWS OF THE "BIENVILLE" AND "FAIRLAND" HAD, UNLESS
DISCHARGED FOR CAUSE, A CONTINUING TENURE OR RELATIONSHIP ENTITLING
THEM TO RE-SIGN WHEN THE TEMPORARY LAY-UPS OF THEIR SHIPS ENDED.  IF,
AS THE BOARD FOUND, THERE WERE SUCH CONTINUING TENURE AND CUSTOMARY
TERM OR CONDITION OF EMPLOYMENT, OF COURSE NO VACANCIES OCCURRED WHEN
THE MEN OF THE "BIENVILLE" AND THE "FAIRLAND" SIGNED OFF ARTICLES IN
MOBILE.  AND RESPONDENT'S CONTRACT WITH THE I.S.U., WHICH ONLY PROVIDED
PREFERENTIAL TREATMENT OF THE I.S.U. (A.F. OF L.)  IN FILLING
VACANCIES, DID NOT REQUIRE THE COMPANY TO DISCHARGE THE N.M.U.
(C.I.O.)  MEN FROM THESE SHIPS. 

IF, THEREFORE, THERE WAS SUBSTANTIAL SUPPORT IN THE EVIDENCE FOR THE
FINDINGS THAT THESE CREWS HAD A CONTINUING RIGHT TO AND CUSTOMARY
TENURE, TERM OR CONDITION OF EMPLOYMENT WITHIN THE PURVIEW OF THE ACT
EVEN THOUGH THEIR SHIPS WERE TEMPORARILY LAID UP, AND THAT THIS
RELATIONSHIP WAS TERMINATED BY THE COMPANY BECAUSE OF THE CREWS' C.I.O.
AFFILIATION, THE COURT BELOW WAS REQUIRED TO ENFORCE THE BOARD'S
ORDER. 

EVIDENCE AS TO THE CONTINUING TENURE, AND CONDITIONS AND RELATION OF
EMPLOYMENT.  ON THE BASIS OF NINE TO TEN YEARS AT SEA, ONE WITNESS
TESTIFIED THAT A SHIP'S CREW IS CUSTOMARILY KEPT ON WHEN SHE GOES INTO
DRY DOCK AND IS LAID UP FOR TEMPORARY REPAIRS; AND THAT BOTH THE
WATERMAN COMPANY AND THE UNIONS HAD OBSERVED THAT CUSTOM.  ANOTHER,
WITH A BACKGROUND OF TEN YEARS EXPERIENCE AT SEA, IN VISITING SOME
FIFTY SHIPS IN DRY DOCK AT MOBILE DURING THE PRECEDING FEW MONTHS HAD
LEARNED OF FORTY-NINE WHICH HAD NOT LAID OFF THEIR ENTIRE CREWS BUT HAD
KEPT A SUBSTANTIAL NUMBER OF THEIR CREWS WORKING ABOARD SHIPS; THE
FIFTIETH HAD LAID OFF ITS ENTIRE CREW AFTER GOING INTO DRY DOCK, BUT
"THE COMPANY KEPT THE JOBS OPEN."  HE KNEW OF ONE VESSEL THAT HAD
REMAINED "IN DRY DOCK FOR A PERIOD OF FORTY-FIVE DAYS AND MAINTAINED
ITS CREW DURING THAT PERIOD," SEVERAL WHICH HAD DONE SO RECENTLY FOR
THIRTY-DAY PERIODS, AND MANY FOR PERIODS "FROM FIVE TO TEN DAYS,
FIFTEEN DAYS."  HE HAD HIMSELF BEEN A MEMBER OF A CREW MAINTAINED IN
ITS ENTIRETY WHILE HIS SHIP WAS IN DRY DOCK FOR TWENTY-TWO DAYS. 

AN OILER AND DECK ENGINEER, WITH EIGHT YEARS IN THE SERVICE, HAD BEEN
ON A WATERMAN SHIP WHICH, AS RECENTLY AS 1936, SPENT SIX DAYS IN
REPAIRS, KEEPING ITS CREW ON; AND HAD "KNOWN THEM TO STAY ON FIFTEEN OR
TWENTY DAYS AND CONTINUE WORKING THAT LONG."  ASKED WHAT OBLIGATION AN
EMPLOYER OWES A SAILOR AFTER THE LATTER RETURNS FROM A FOREIGN VOYAGE,
COMPLETES HIS CONTRACT UNDER THE SHIP'S ARTICLES, IS PAID OFF AND
DISCHARGED BEFORE A SHIPPING COMMISSIONER, HE ANSWERED "IF MY SERVICES
ARE SATISFACTORY AND MY WORK EFFICIENT, I HAVE THE RIGHT TO STAY ON
THAT SHIP, IF I HAVE NOT DONE ANYTHING TO BE DISCHARGED FOR.  WHY
SHOULDN'T I MAKE ANOTHER TRIP?  ...  Q. IS IT TRUE TO STATE THAT A
SEAMAN'S JOB IS STILL EXISTENT, ALTHOUGH HE MAY NOT BE DRAWING PAY
WHILE THE BOAT IS TIED UP FOR REPAIRS?  A. YES, SIR.  Q. THERE IS NO
VACANCY IN HIS JOB?  A. NO; THERE IS NO VACANCY." 

THE CHIEF STEWARD OF THE "BIENVILLE," EMPLOYED BY WATERMAN SINCE 1934
AND A SEAMAN SINCE 1918, TESTIFIED THAT CREWS OF SHIPS IN DRY DOCK -
TIED UP FOR REPAIRS FOR A FEW DAYS - "HAVE TO DO THEIR WORK AND GET
PAID FOR IT BY THE WATERMAN STEAMSHIP CORPORATION" AND UNLESS THEY QUIT
OR ARE FIRED "FOR CAUSE" THERE IS NO VACANCY.  THE GIVING OF A
DISCHARGE ACCORDING TO THE SHIP'S ARTICLES, HE UNDERSTOOD "TO BE A
TERMINATION OF THE VOYAGE, BUT NOT A TERMINATION OF THE EMPLOYMENT." 

ALTHOUGH AT SEA BUT THREE YEARS, A FIREMAN AND OILER TESTIFIED THAT
HE HAD BEEN RE-SIGNED, UPON THE TERMINATION OF ARTICLES, AFTER EACH OF
FOURTEEN TRIPS ON A SINGLE SHIP, FROM SOUTHERN PORTS INCLUDING MOBILE,
HAD BEEN KEPT AS A MEMBER OF A CREW ON A SHIP IN FOR REPAIRS NINE DAYS
AND HAD "KNOWN OF ONE SHIP THAT WAS LAID UP (FOR LACK OF CARGO) FOR
FIVE WEEKS AND THE CREW WENT BACK." 

A MARINE FIREMAN, OILER AND WATERTENDER, AT SEA SINCE 1922, HAD BEEN
ON A WATERMAN SHIP IN FOR REPAIRS TEN OR TWELVE DAYS, THE CREW OF WHICH
WAS RETAINED ONLY IN PART, BUT THOSE LAID OFF "WERE NOTIFIED WHEN THE
SHIP WENT INTO COMMISSION THEY CAN GO OUT AGAIN."  HE "WAS ON ONE
(SHIP) THAT STAYED TWO MONTHS IN DRY DOCK  ...  JUST PART OF THE CREW
...  (WERE KEPT ON, BUT) THE WHOLE CREW WAS THERE FOR THEIR JOBS WHEN
SHE WAS COMMISSIONED AGAIN."  HE HAD NEVER HEARD OF A MASS DISCHARGE OF
AN ENTIRE CREW SUCH AS OCCURRED ON THE "BIENVILLE" AND "FAIRLAND."  IN
PART, THE TESTIMONY OF THIS FORMER I.S.U. MEMBER WAS:  "Q.  DO THE
UNIONS CONSIDER THAT THERE IS NO VACANCY UNTIL A MAN RESIGNS?  A. YES;
THEY DO NOT FIGURE IT IS ANY VACANCY UNTIL THEY CALL THE (UNION) HALL
FOR ANOTHER MAN." 

A SEAMAN IN THE EMPLOY OF THE WATERMAN COMPANY INTERMITTENTLY SINCE
1924, HAD BEEN ON A WATERMAN BOAT WHICH KEPT ITS WHOLE CREW DURING SIX
OR SEVEN DAYS IN DRY DOCK.  IT HAD BEEN HIS EXPERIENCE THAT A CREW WAS
KEPT ON SHIPS IN DRY DOCK OR BEING REPAIRED, UNLESS A SHIP WAS TO BE
LAID UP INDEFINITELY, I.E., FOR TWO OR THREE MONTHS, IN WHICH EVENT
ONLY A SKELETON CREW WOULD BE MAINTAINED.  BUT, HE ADDED, THE WATERMAN
COMPANY ITSELF FOLLOWS THE CUSTOM OF "CALLING BACK TO THE SHIP" MEN WHO
HAVE BEEN LAID OFF INDEFINITELY AND "ARE STILL AROUND," AND MEN
STANDING IDLY BY WITHOUT PAY AT THE END OF A VOYAGE STILL REGARD
THEMSELVES IN THE EMPLOY OF THE SHIPOWNER.    ONE WITNESS HAD SERVED AS
A FIREMAN ON A WATERMAN SHIP THAT SPENT THE PERIOD BETWEEN THE FIRST OF
NOVEMBER AND THANKSGIVING OF 1932 IN DRY DOCK AND UNDERGOING REPAIRS;
SHE KEPT "APPROXIMATELY ALL OF" HER CREW ABOARD SHIP WORKING DURING
THIS PERIOD; A FEW WERE PERMITTED TO GO HOME IN THE INTERIM, BUT
RETURNED WHEN SHE STARTED HER VOYAGE.  ON ANOTHER OCCASION, HE
TESTIFIED, THE SAME WATERMAN BOAT STAYED IN DRY DOCK ABOUT SIXTY DAYS,
RETAINING APPROXIMATELY THE ENTIRE CREW; ALTHOUGH AFTER FIVE DAYS IN
DRY DOCK HE WAS CALLED OUT OF TOWN TO APPEAR AS A WITNESS, HE LATER GOT
HIS JOB BACK.  IN HIS CAPACITY AS A SHIPYARD WORKER IN WHICH HE WAS
EMPLOYED AT MOBILE AT THE TIME OF THIS HEARING, THIS SAME WITNESS
OBSERVED "WE HAVE BOATS COMING IN FROM TWENTY-FIVE UP TO THIRTY DAYS
...  AND THE CREW WORKS IN THERE, AND THEY MAY WANT TO LAY OFF PART OF
THE CREW, OR WORK A MAJOR PART, OR MAYBE THEY WILL BE DISCHARGED, BUT
THOSE THAT WANT TO GO BACK, THEIR JOBS IS OPEN IF THEY WISH THEM."  OF
SOME SIX HUNDRED SHIPS HE HAD SEEN OR WORKED ON IN DRY DOCK OR BEING
REPAIRED, HE HAD SEEN BUT ONE COMPLETE DISCHARGE OF AN ENTIRE CREW, BUT
EVEN THAT CREW WERE TOLD THEY COULD COME BACK "IF THEY WANTED THEIR
JOBS."  ACCORDING TO HIS UNDERSTANDING AND THAT OF SEAMEN AS HE KNEW
IT, ARTICLES WERE "PROTECTION TO THE SEAMEN BY THE UNITED STATES
GOVERNMENT FOR A CERTAIN VOYAGE, AND TO A CERTAIN PORT, OR YOUR FINAL
PORT OF DISCHARGE OR FIRST LOADING PORT.  THAT IS A TERMINATION OF THE
ARTICLES TO THE SEAMAN, BUT NOT THE END OF THE EMPLOYMENT." 

A WITNESS WHO HAD WORKED FOR THE WATERMAN COMPANY SINCE 1929, WHO HAD
BEEN A MARINE ENGINEER FOR FOURTEEN YEARS, AND AT SEA TWENTY YEARS,
TESTIFIED THAT A CREW WHICH IS LAID OFF IS CUSTOMARILY RE-EMPLOYED WHEN
A SHIP EMERGES FROM DRY DOCK, UNLESS LAID OFF "FOR CAUSE."  A WATERMAN
SHIP, ON WHICH HE HAD BEEN AT THE TIME SERVING, LAID UP IN MOBILE FROM
DECEMBER, 1936, TO ABOUT JANUARY 25, 1937, "AND THE ENGINEERS WERE KEPT
ON HER, AND TO THE BEST OF MY KNOWLEDGE THE FIREMEN AND WATERTENDERS
AND OILERS WERE KEPT ON THERE." 

THE EXECUTIVE VICE-PRESIDENT OF THE WATERMAN COMPANY RECALLED THAT
RECENTLY THE CREW OF ONLY ONE OTHER VESSEL GOING IN FOR REPAIRS HAD
BEEN DISCHARGED, AND THAT THIS PARTICULAR CREW ALSO HAD BEEN AFFILIATED
WITH THE N.M.U. (C.I.O.).  OF THE SEVERAL WATERMAN VESSELS WHICH HE
MENTIONED AS HAVING BEEN PUT UP IN MOBILE FOR DRY-DOCKING OR REPAIRS
DURING THE PREVIOUS YEAR, HE COULD NOTE ONLY THE ONE THAT HAD NOT KEPT
ITS ENTIRE CREW (OTHER THAN THE "BIENVILLE" AND "FAIRLAND"); THE ONE
OTHER CREW THAT WAS DISCHARGED EN MASSE, HE ADMITTED, WAS THE ONE OTHER
ALSO AFFILIATED WITH THE C.I.O. 

THE WITNESS WHO HAD BEEN CAPTAIN OF THE "FAIRLAND" WHEN SHE WENT INTO
DRY DOCK, HAD SERVED THE WATERMAN COMPANY CONTINUOUSLY SINCE 1924, WITH
THE EXCEPTION OF ONE YEAR, IN CAPACITIES RANGING FROM ORDINARY SEAMAN
TO SHIP'S MASTER.  YET, IN ALL HIS EXPERIENCE WITH THE COMPANY, HE HAD
NEVER HEARD OF A SHIP IN DRY DOCK THAT HAD LAID OFF HER ENTIRE CREW. 
AND WATERMAN'S PORT CAPTAIN, A VETERAN OF TWENTY-FOUR YEARS, HAD TAKEN
PERHAPS A HALF DOZEN OF WATERMAN SHIPS INTO DRY DOCK, NEVER STAYING
MORE THAN TWENTY-FOUR HOURS IN DRY DOCK BUT WITH A TOTAL OF EIGHT TO
TEN DAYS IN PORT, AND HIS CREWS WERE NEVER LAID OFF; HE PREFERRED TO
RETAIN A CREW FOR A SUCCEEDING VOYAGE. 

IN THE VERY CONTRACT WHICH THE WATERMAN COMPANY MADE WITH THE I.S.U.
THERE ARE TERMS PROVIDING THAT "IN HOME PORT, ALL MEN MAY BE REQUIRED
TO WORK EIGHT (8) HOURS DAILY  ...  (WITH PROVISION FOR OVERTIME)." 
AND THE SECTION OF THE CONTRACT COVERING PREFERENCE FOR I.S.U. MEN
"SHALL NOT BE CONSTRUED TO REQUIRE THE DISCHARGE OF ANY EMPLOYEE WHO
MAY NOT DESIRE TO JOIN THE (I.S.U.)  ...  " THAT THE CONTRACT
CONTEMPLATED AN EMPLOYMENT INDEPENDENT OF THE ARTICLES AND SUBJECT TO
TERMINATION IN A MANNER OTHER THAN BY THE MERE EXPIRATION OF ARTICLES,
IS APPARENT FROM THE PROVISION THAT "NOTHING IN THIS AGREEMENT SHALL
PREVENT  ...  (THE COMPANY) FROM DISCHARGING ANY MEMBER OF THE CREW WHO
IS NOT SATISFACTORY TO THE COMPANY." 

ALL THE EVIDENCE ON THIS ISSUE WHICH THE BOARD HAD BEFORE IT HAS, OF
COURSE, NOT BEEN SET OUT.  IN SUMMARY, IT IS GLARINGLY APPARENT THAT
MEN WHO HAD IN VARIOUS CAPACITIES FOLLOWED THE SEA IN THE AGGREGATE FOR
ROUGHLY A HUNDRED YEARS, OFFERED TESTIMONY THAT A SEAMAN'S TENURE AND
RELATIONSHIP TO HIS SHIP AND EMPLOYER ARE NOT TERMINATED BY THE MERE
EXPIRATION OF ARTICLES WHEN HIS SHIP LAYS UP IN DRY DOCK OR FOR
REPAIRS, AND THAT THE WATERMAN COMPANY - AND MARITIME PEOPLE GENERALLY
HAVE RECOGNIZED AND FOLLOWED THIS CUSTOM.  EVEN THE WATERMAN COMPANY'S
EXECUTIVE VICE-PRESIDENT COULD CITE ONLY ONE INSTANCE IN THE COMPANY'S
RECENT PAST IN WHICH THIS CUSTOM HAD BEEN DEPARTED FROM, BUT THAT
PARTICULAR MASS FIRING OF THE CREW OF A SHIP HEADED FOR A TEMPORARY LAY
UP WAS DIRECTED AGAINST THE ONLY C.I.O. CREW, OTHER THAN THOSE OF THE
"BIENVILLE" AND "FAIRLAND," WITH WHICH THE WATERMAN COMPANY APPARENTLY
HAD BEEN ASKED TO DEAL.  AND THE MASTER OF THE "FAIRLAND," WITH
PERSONAL KNOWLEDGE OF THE COMPANY'S PRACTICE REACHING BACK TO 1924, HAD
NEVER HEARD OF "ANOTHER CASE WHERE THE ENTIRE CREW WAS LAID OFF." 

IN THE WORDS OF THE ACT, AN EMPLOYER CANNOT TERMINATE HIS
EMPLOYEES'"TENURE OF EMPLOYMENT OR ANY TERM OR CONDITION OF EMPLOYMENT"
FN9  BECAUSE OF UNION ACTIVITY OR AFFILIATION.  THESE WORDS ARE NOT
LIMITED SO AS TO OUTLAW DISCRIMINATION ONLY WHERE THERE IS IN EXISTENCE
A FORMAL CONTRACT OR RELATION OF EMPLOYMENT BETWEEN EMPLOYER AND
EMPLOYEE.  THEY EMBRACE, AS WELL, ALL ELEMENTS OF THE EMPLOYMENT
RELATIONSHIP WHICH IN FACT CUSTOMARILY ATTEND EMPLOYMENT AND WITH
RESPECT TO WHICH AN EMPLOYER'S DISCRIMINATION MAY AS READILY BE THE
MEANS OF INTERFERING WITH EMPLOYEES' RIGHT OF SELF-ORGANIZATION AS IF
THESE ELEMENTS WERE PRECISE TERMS OF A WRITTEN CONTRACT OF EMPLOYMENT. 
THE ACT, AS HAS BEEN SAID, RECOGNIZES THE EMPLOYER'S RIGHT TO TERMINATE
EMPLOYMENT FOR NORMAL REASONS.  FN10  NO OBSTACLE OF LEGAL PRINCIPLE
BARRED THE BOARD FROM FINDING THAT THERE WAS, EVEN AFTER THE SHIPS WERE
TEMPORARILY LAID UP, A RELATIONSHIP OF EMPLOYMENT OR TENURE BETWEEN THE
WATERMAN COMPANY AND ITS MEN.  THAT THERE MAY BE A TENURE OR TERM OF
EMPLOYMENT DETERMINABLE AT WILL IS A RECOGNIZED PRINCIPLE OF LAW.  FN11
FOR THE PURPOSE OF THE ACT, IT IS IMMATERIAL THAT EMPLOYMENT IS AT
WILL AND TERMINABLE AT ANY TIME BY EITHER PARTY.  FN12  A LARGE PART OF
ALL INDUSTRIAL EMPLOYMENT IS OF THIS NATURE.  FOR ILLUSTRATION, FACTORY
WORKERS ARE CUSTOMARILY EMPLOYED AT WILL, WITHOUT OBLIGATION OF
EMPLOYER OR EMPLOYED TO CONTINUE THE RELATIONSHIP WHEN THE DAY'S WORK
IS DONE; OR, IF THERE IS AN AGREEMENT FIXING SALARY OR WAGES PER UNIT
OF SERVICE, AT SO MUCH PER DAY, WEEK OR MONTH, THERE MAY BE AN
INDEFINITE EMPLOYMENT TERMINABLE BY EITHER PARTY AT THE END OF ANY UNIT
PERIOD.  BUT WHEN SUCH EMPLOYEES ARE CUSTOMARILY CONTINUED IN THEIR
EMPLOYMENT WITH RECOGNITION OF THEIR PREFERENTIAL CLAIMS TO THEIR JOBS,
IT CANNOT BE DOUBTED THAT THEIR WHOLESALE DISCHARGE AT THE END OF THE
DAY OR OTHER UNIT PERIOD, IN ORDER TO FAVOR ONE UNION OVER ANOTHER,
WOULD BE DISCRIMINATION IN REGARD TO THE "TENURE" OR "CONDITION" OF
THEIR EMPLOYMENT IN VIOLATION OF THE ACT.  AND EMPLOYEES UNDER SUCH
TENURE OF EMPLOYMENT AS THESE SEAMEN WERE, HAVE A RIGHT GUARANTEED BY
THE ACT THAT THEY WILL NOT BE DISMISSED BECAUSE OF AFFILIATION WITH A
PARTICULAR UNION. 

SINCE THE BOARD JUSTIFIABLY FOUND THAT AN EMPLOYMENT RELATIONSHIP
PROTECTED BY THE ACT CONTINUED AFTER THE "BIENVILLE" AND "FAIRLAND"
WERE TEMPORARILY LAID UP, IT BECOMES UNNECESSARY TO CONSIDER THE
ADDITIONAL FINDING OF THE BOARD THAT THE "DATES AND DURATION OF THE
PARTICULAR LAY-UPS WERE ARRANGED FOR THE PURPOSE OF MAKING IT POSSIBLE
TO DISCHARGE THE CREWS BECAUSE THEY HAD JOINED THE N.M.U." 

THE SOLE QUESTION REMAINING IS WHETHER THE EVIDENCE SUPPORTED THE
FINDINGS OF THE BOARD THAT THE EMPLOYMENT OR TENURE OF THE CREWS AND OF
O'CONNOR AND PELLETIER WERE TERMINATED BECAUSE THEY HAD JOINED OR
ENGAGED IN THE ACTIVITIES OF THE C.I.O. 

EVIDENCE OF DISCRIMINATION BECAUSE OF C.I.O. AFFILIATION.  ABOUT JULY
1, 1937, THE ENTIRE CREW OF THE "BIENVILLE" AND ALL BUT THREE OF THE
"FAIRLAND," PREVIOUSLY I.S.U. (A.F. OF L.), JOINED THE N.M.U. (C.I.O.) 
IN TAMPA, FLORIDA.  SUCH ACTION HAD BEEN DECIDED ON IN JUNE BY THE CREW
OF THE "BIENVILLE" WHILE SHE WAS IN LE HAVRE, FRANCE AFTER THE CREW OF
THE "BIENVILLE" CHANGED TO THE C.I.O. AT TAMPA AND BEFORE SHE REACHED
MOBILE, THE AF. OF L. REPRESENTATIVE AT TAMPA INFORMED THE A.F. OF L.
REPRESENTATIVE AT MOBILE, BY TELEPHONE, THAT THE CHANGE HAD TAKEN
PLACE.  AND THE MOBILE A.F. OF L. REPRESENTATIVE "AT THAT TIME"
NOTIFIED THE WATERMAN COMPANY OF THE CHANGE.  INTERVENING SCHEDULED
STOPS OF THE "BIENVILLE" WERE CANCELLED BY A MEMORANDUM PURPORTING TO
HAVE BEEN WRITTEN ON JULY 1 AND ORDERING HER TO MOBILE TO "GO ON
INACTIVE STATUS FOR A PERIOD OF ABOUT TWENTY DAYS."  THE PORT CAPTAIN
OF THE WATERMAN COMPANY, WHO SIGNED THIS MEMORANDUM, STATED THAT IT WAS
WRITTEN ON JULY 1, "TO THE BEST OF  ...  (HIS) KNOWLEDGE."  HE ADDED
THAT IT HAD NOT BEEN WRITTEN UNTIL AFTER THE "BIENVILLE" WAS ON HER
RETURN VOYAGE FROM LE HAVRE.  THAT WAS AFTER THE SHIP'S CREW HAD, IN
ASSEMBLY, DETERMINED TO TURN C.I.O.  NO SUCH CANCELLATION WAS DIRECTED
TO THE "FAIRLAND."  THE "FAIRLAND," HE TESTIFIED, WAS LAID UP BECAUSE
PERIODIC REPAIRS "WERE DUE."  ON THE OTHER HAND, HER MASTER HAD NO
KNOWLEDGE OF ANY CONTEMPLATED LAY-UP UNTIL SHE REACHED MOBILE, AND
UNDERSTOOD, ACCORDING TO ADVICE GIVEN HIM, THAT SHE WAS LAID UP BECAUSE
"SHE WAS BEHIND SCHEDULE  ...  AND THEY PUT HER BACK TO THE NEXT
SAILING."  THE WATERMAN PORT CAPTAIN THOUGHT SHE WAS LAID UP BECAUSE
REPAIRS "WERE DUE"; HE HAD NO KNOWLEDGE THAT IT WAS BECAUSE SHE WAS
BEHIND SCHEDULE.  HER MASTER'S TESTIMONY SHOWED, "Q. THE LAYING UP
PLAN, THEN, HAD BEEN SOMETHING THAT WAS CONTEMPLATED IN TAMPA? 

"NO, SIR. 

"Q.  IT WAS SOMETHING THAT CAME INTO EXISTENCE AFTER YOU SAILED FROM
TAMPA AND BEFORE YOU CAME TO MOBILE, IS THAT RIGHT? 

"A.  YES." 

THE "FAIRLAND" IS EQUIPPED WITH RADIO. 

THE SHIPS WERE IN MOBILE BY JULY 6.  THERE WAS TESTIMONY THAT A
MEMBER OF THE CREW OF THE "BIENVILLE," ON THE SIXTH, WAS ASKED BY THE
EXECUTIVE VICE-PRESIDENT OF THE COMPANY WHY THE CHANGE OF UNIONS WAS
MADE AND WAS TOLD BY THAT OFFICIAL "A MAN HAS TO USE HIS OWN HEAD." 
THIS SAME WITNESS TESTIFIED THAT SEVERAL OF THE DISCHARGED CREW WERE
GIVEN SOME WORK ASHORE AND THAT "ON A SATURDAY AFTERNOON WE COLLECTED
THREE DAYS PAY, THEY HELD BACK TWO DAYS IN THE WEEK, AND ABOUT THREE
O'CLOCK IN THE AFTERNOON THE FIRST ASSISTANT CAME AROUND THERE AND I
WAS WORKING ON SOME SAFETY VALVES ON THE BOILERS, AND  ...  (THE
ASSISTANT PORT ENGINEER OF WATERMAN COMPANY) SAID, 'WELL, I GOT A
CHANCE TO FIRE YOU AT LAST,' AND I SAID, 'WHAT IS THAT?'  AND HE SAID,
'WELL, YOU CAN GET THE REST OF YOUR MONEY WHEN YOU ARE FINISHED,' AND I
SAID, 'WHAT'S THE MATTER, AREN'T WE GOING TO SAIL THE SHIP?'  AND HE
SAID, 'NO, NOT UNLESS YOU GO BACK TO THE OTHER PLACE,' AND I SAID,
'WHAT OTHER PLACE?'  AND HE SAID, 'THE I.S.U.'" 

PELLETIER, THE STEWARD ON THE "BIENVILLE" WORKED FOR WATERMAN FROM
1934 UNTIL DISCHARGED AFTER JOINING THE N.M.U. (C.I.O.).  WHEN THE
"BIENVILLE" ARRIVED AT MOBILE, WATERMAN'S PORT STEWARD WENT TO THE
BOAT, AND TALKED WITH THE MATE, WHO INFORMED HIM THAT SOME OF THE MEN
HAD JOINED THE N.M.U.  ACCORDING TO THE PORT STEWARD'S TESTIMONY, HE
THEN ASKED THE MATE, "HOW IS THE STEWARD'S DEPARTMENT?"  AND THE MATE
REPLIED, "WELL SOME OF THEM JOINED THE N.M.U.  ...  AND LATER ON I (THE
PORT STEWARD) FOUND THE STEWARD IN HIS ROOM.  ...  I ASKED PELLETIER
DID HE JOIN THE N.M.U. AND HE SAID 'YES', AND I SAID 'WHAT ABOUT THE
REST OF YOUR CREW?'  AND HE SAID 'WELL, THEY ALL DID.'  I ASKED HIM DID
THEY HAVE ANY REASON FOR IT, AND HE SAID, 'YES, EVERYBODY DID', SO I
SAID 'ALL RIGHT' AND I LEFT THE SHIP."  HE RETURNED TO THE COMPANY'S
OFFICE.  TWO HOURS LATER, HE CAME BACK TO THE SHIP, CHARGED PELLETIER
WITH INCOMPETENCY AND DISCHARGED HIM.  PELLETIER TESTIFIED THAT THE
PORT STEWARD, WHEN TOLD THAT THE CREW AND PELLETIER HAD TURNED N.M.U.
SAID, "WELL I HAVE GOT ORDERS TO LAY YOU ALL OFF."  PELLETIER HAD BEEN
PROMOTED JUST PRIOR TO THE VOYAGE IN QUESTION.  A NEW I.S.U. MAN WAS
PUT ON TO FINISH UP HIS WORK AND REMAINED ON AS WATCHMAN PRACTICALLY
THE FULL TIME THE "BIENVILLE" WAS LAID UP. 

ALTHOUGH HER CAPTAIN HAD, PRIOR TO THE COMING ABOARD OF A COMPANY
OFFICIAL, EXPRESSED A DESIRE TO KEEP THE "FAIRLAND'S" CREW, AS ONE OF
HER CREW TESTIFIED, THE CREW WAS INFORMED BY THIS OFFICIAL THAT THEY
COULD NOT SAIL, "BUT IF YOU TAKE YOUR BOOKS AND GIVE THEM TO  ...  THE
I.S.U. YOU CAN KEEP YOUR JOBS"; ANOTHER WATERMAN OFFICIAL "TOLD ME I
COULD NOT SAIL ON ANY WATERMAN STEAMSHIP AS LONG AS I WAS AN N.M.U.
MAN."  ACCORDING TO THIS WITNESS, HE HAD LEFT HIS CLOTHES ON THE
"FAIRLAND" AND SLEPT ABOARD SHIP WHEN SHE WAS IN DRY DOCK WITH THE
UNDERSTANDING HE WOULD RE-SIGN; HE WAS, HOWEVER, ORDERED OFF THE SHIP. 

AN ENGINEER ON THE WATERMAN VESSEL "AZALEA CITY," EIGHT YEARS WITH
THE COMPANY, O'CONNOR, A MEMBER OF THE M.E.B.A., (ALSO AFFILIATED WITH
THE C.I.O.)  TESTIFIED THAT HE ACTED AS SPOKESMAN FOR OTHER ENGINEERS
ON HIS SHIP IN COMPLAINING ABOUT WORKING CONDITIONS, HOURS OF
EMPLOYMENT AND RATES OF PAY; WHEN HE DISCUSSED THE COMPLAINT WITH THE
COMPANY'S REPRESENTATIVE, DURING JULY, HE WAS TOLD TO TAKE A VACATION
AND LEFT THE SHIP ON A PROMISE OF A MORE DESIRABLE JOB; NEITHER THE
VACATION, THE PROMISED JOB, NOR RE-EMPLOYMENT OF ANY KIND WAS EVER
GIVEN HIM.  WATERMAN'S EXECUTIVE VICE-PRESIDENT HAD NEVER HAD AN
ENGINEER ACT IN SUCH A REPRESENTATIVE CAPACITY RELATIVE TO ASSERTED
VIOLATIONS OF A UNION CONTRACT.  AND THE ASSISTANT PORT ENGINEER STATED
THAT IT WAS THE CUSTOM TO CALL A MAN OF O'CONNOR'S RANK WHEN NOT ON
VACATION; THAT O'CONNOR HAD BEEN PROMISED AND THEN DENIED A VACATION,
BUT HAD NOT BEEN CALLED ALTHOUGH WORK HAD BEEN AVAILABLE; AND, IN
ADDITION THAT O'CONNOR HAD IN CONVERSATION WITH HIM ASKED "WOULD
WATERMAN GIVE ME EMPLOYMENT."    THE EXECUTIVE VICE-PRESIDENT OF THE
COMPANY WOULD NOT "UNTIL THE ACTUAL TIME CAME" ANSWER THE QUERY WHETHER
HE WOULD REINSTATE THE N.M.U. MEN EVEN IF THERE WERE NO CONTRACT WITH
THE I.S.U.  HE STATED THAT HE HAD RECEIVED A WIRE FROM THE BOARD'S
REGIONAL DIRECTOR AT NEW ORLEANS ON JULY 7, RECOMMENDING AND INSISTING
ON REINSTATEMENT OF N.M.U. MEN DISMISSED AT MOBILE, AND DID NOT DENY
THAT HE HAD FIRST TOLD THE DIRECTOR THAT HIS REASON FOR NOT WORKING
N.M.U. MEN WAS THE EXISTENCE OF THE I.S.U. CONTRACT.  HE ADMITTED,
HOWEVER, THAT LATER ON THE SAME DAY HIS DECISION THAT THE MEN WERE
REMOVED BECAUSE THE VESSELS WERE LAYING UP WAS ATTRIBUTABLE TO AN
APPARENT CHANGE OF HIS OWN MIND. 

ADDITIONAL EVIDENCE THAT THE DISCHARGED N.M.U. MEN WERE AGAIN TREATED
WITH DISCRIMINATION IN THE ALLOTMENT OF REPAIR WORK ON THE "BIENVILLE"
AND "FAIRLAND"; AND WERE LAID OFF IN A BLOCK EVEN FROM THIS WORK - ALL
TENDED TO BUTTRESS AND ILLUMINATE THE BOARD'S FINDING THAT THE TENURE
OF EMPLOYMENT OF THESE MEN OF THE "BIENVILLE" AND "FAIRLAND" WAS CUT
SHORT BECAUSE THEY HAD EXERCISED THEIR LAWFUL RIGHT TO JOIN THE C.I.O.
ONE OF THE MEN WHO WAS GIVEN TEMPORARY REPAIR WORK - SUBSEQUENT TO THE
BOARD'S TELEGRAM OF THE SEVENTH - TESTIFIED: 

"Q.  WHILE YOU WERE A MEMBER OF THE N.M.U., DID YOU EVER WEAR YOUR
N.M.U. BADGE OR BUTTON? 

"A.  YES, SIR; I USED TO WEAR IT ON MY CAP, ON THE DOCK WHILE I WAS
WORKING DOWN THERE. 

"Q.  WAS THERE ANYTHING EVER SAID TO YOU AT THE WATERMAN STEAMSHIP
ABOUT WEARING IT? 

"A.  MR. INGRAM TOLD ME I WOULD HAVE TO TAKE THAT MARITIME UNION
BUTTON OFF IF I WANTED TO STAY AROUND THERE, AND I TOOK IT OFF, AND PUT
IT IN MY POCKET." 

FROM ALL THIS EVIDENCE, THERE CAN BE NO DOUBT OF THE SUBSTANTIAL
SUPPORT FOR THE BOARD'S FINDING THAT THE CREWS, O'CONNOR AND PELLETIER
ALL LOST THEIR JOBS BECAUSE OF C.I.O. AFFILIATION AND ACTIVITIES. 

EVIDENCE OF DISCRIMINATION AS TO SHIPS' PASSES.   - THE BOARD FOUND
"THAT THE RESPONDENT, BY ISSUING PASSES TO REPRESENTATIVES OF THE
I.S.U. AND REFUSING TO GRANT SUCH PASSES TO REPRESENTATIVES OF THE
N.M.U. FOR THE SAME PURPOSE AND UNDER THE SAME CONDITIONS, HAD
INTERFERED WITH, RESTRAINED, AND COERCED ITS EMPLOYEES IN THE EXERCISE
OF THEIR RIGHTS GUARANTEED IN SECTION 7 OF THE ACT."  FN13  AN ELECTION
TO PERMIT A CHOICE OF BARGAINING AGENCY BY THE CREWS HAS BEEN DIRECTED
BUT HAS NOT BEEN HELD PENDING TERMINATION OF THE PRESENT PROCEEDING. 
FN14 

UPON THIS ISSUE OF DISCRIMINATION CONCERNING PASSES, N.M. U.'S
REPRESENTATIVE TESTIFIED THAT THE COMPANY'S EXECUTIVE VICE-PRESIDENT,
ABOUT SEPTEMBER 24 OR 25, 1937, REFUSED HIS REQUEST "FOR PASSES FOR THE
ELECTION OF THE N.L.R.B."  BECAUSE OF THE I.S.U. CONTRACT.  BUT NO
PROVISION OF THE I.S.U. CONTRACT REFERRED TO SHIPS' PASSES FOR
REPRESENTATIVES OF OTHER UNIONS.  THE RESPONDENT'S ATTORNEY TOOK THE
POSITION THAT N.M.U. REPRESENTATIVES WOULD NOT BE PERMITTED ON BOARD
UNDER ANY CONDITIONS.  TESTIFYING THAT I.S.U. REPRESENTATIVES WERE
PERMITTED ABOARD THE "BIENVILLE" AT ALL TIMES TO CONTACT THE MEN,
PELLETIER "DID NOT RECOLLECT SEEING ANYONE WITH THEM."  WATERMAN'S
EXECUTIVE VICE-PRESIDENT WHO POINTED OUT THAT I.S.U. DELEGATES WERE
GIVEN PASSES ON CERTAIN CONDITIONS, SUCH AS TAKING OUT INSURANCE FOR
DELEGATES GOING ABOARD, DID NOT KNOW WHETHER IN FACT THERE HAD BEEN
COMPLIANCE BY THE I.S.U. WITH THE CONDITIONS.  HE TESTIFIED THAT HE HAD
ISSUED INSTRUCTIONS, JULY 13, TO PERMIT I.S.U. REPRESENTATIVES ABOARD
SHIP ONLY TO COLLECT DUES.  BUT HE ALSO TESTIFIED THAT THEY WERE STILL
PERMITTED TO CONTACT MEMBERS.  THE MASTER OF THE "FAIRLAND" STATED THAT
HE DID NOT RECEIVE THE INSTRUCTIONS OF JULY 13 UNTIL AUGUST; AND THAT
EVEN AFTER THE INSTRUCTIONS WERE PUT IN EFFECT, HE PERMITTED I.S.U.
REPRESENTATIVES TO BOARD SHIP UNACCOMPANIED; HE DID NOT KNOW WHAT THEY
SAID TO THE MEN, WHETHER THEY BROUGHT LITERATURE ABOARD OR WHETHER THEY
RESTRICTED THEMSELVES TO THE COLLECTION OF DUES.  ALTHOUGH ALWAYS
PRESENT AT THE PAYING OFF AND SIGNING OFF OF ARTICLES, WHEN THE I.S.U.
REPRESENTATIVES COLLECTED DUES, THE COMPANY'S PORT CAPTAIN "DID NOT PAY
ANY STRICT ATTENTION WHATEVER TO WHAT THEY WERE DOING."  ASKED WHETHER
HE KNEW WHAT THESE REPRESENTATIVES DID AT SUCH TIMES, HE REPLIED, "I
DID NOT FOLLOW THEM AROUND TO SEE WHAT THEY WERE DOING." 

ENOUGH HAS BEEN SHOWN TO ESTABLISH THE REASONS FOR THE BOARD'S
DECISION THAT IF THE COMPANY WAS TO PERMIT ANY OPPORTUNITY FOR CONTACT
WITH THE MEN, A FAIR ELECTION REQUIRED THAT EQUAL OPPORTUNITIES BE
GIVEN TO BOTH THE C.I.O. AND THE A.F. OF L. THE CONTROL OF THE ELECTION
PROCEEDING, AND THE DETERMINATION OF THE STEPS NECESSARY TO CONDUCT
THAT ELECTION FAIRLY WERE MATTERS WHICH CONGRESS ENTRUSTED TO THE BOARD
ALONE.  FN15  INTERFERENCE IN THOSE MATTERS CONSTITUTED ERROR ON THE
PART OF THE COURT BELOW. 

ALL OF THIS IS NOT TO SAY THAT MUCH OF WHAT HAS BEEN RELATED WAS
UNCONTRADICTED AND UNDENIED BY EVIDENCE OFFERED BY THE COMPANY AND BY
THE TESTIMONY OF ITS OFFICERS.  WE HAVE ONLY DELINEATED FROM THIS
RECORD OF MORE THAN FIVE HUNDRED PAGES THE BASIS OF OUR CONCLUSION THAT
ALL OF THE BOARD'S FINDINGS, FAR FROM RESTING ON MERE SUSPICION, ARE
SUPPORTED BY EVIDENCE WHICH IS SUBSTANTIAL.  THE COURT OF APPEALS'
FAILURE TO ENFORCE THE BOARD'S ORDER RESULTED FROM THE SUBSTITUTION OF
ITS JUDGMENT ON DISPUTED FACTS FOR THE BOARD'S JUDGMENT,  - AND POWER
TO DO THAT HAS BEEN DENIED THE COURTS BY CONGRESS.  WHETHER THE COURT
WOULD REACH THE SAME CONCLUSION AS THE BOARD FROM THE CONFLICTING
EVIDENCE IS IMMATERIAL AND THE COURT'S DISAGREEMENT WITH THE BOARD
COULD NOT WARRANT THE DISREGARD OF THE STATUTORY DIVISION OF AUTHORITY
SET UP BY CONGRESS. 

THE CAUSE IS REVERSED AND REMANDED TO THE COURT OF APPEALS WITH
DIRECTIONS TO ENFORCE THE BOARD'S ORDER IN ITS ENTIRETY.  REVERSED. 

FN1  THE BOARD SPECIFICALLY REFERRED TO NATIONAL LABOR RELATIONS
BOARD V. BELL OIL & GAS CO., 98 F.2D 406, REHEARING DENIED 98 F.2D
870(ALSO, 91 F.2D 509; 98 F.2D 405; 99 F.2D 56); PENINSULAR &
OCCIDENTAL S.S. CO. V. NATIONAL LABOR RELATIONS BOARD, 98 F.2D 411,
CERTIORARI DENIED, 305 U.S. 653; GLOBE COTTON MILLS V. NATIONAL LABOR
RELATIONS BOARD, 103 F.2D 91. 

FN2  49 STAT. 449, SEC. 10(E). 

FN3  308 U.S. 534.  CF. FEDERAL COMMUNICATIONS COMMISSION V.
POTTSVILLE BROADCASTING CO., ANTE, P. 134. 

FN4  IN OUTLINE, THE BOARD ORDERED THE WATERMAN COMPANY TO CEASE AND
DESIST FROM ISSUING SHIPS' PASSES TO THE A.F. OF L. ON A FAVORED BASIS
AS COMPARED TO THE C.I.O.; FROM DISCOURAGING MEMBERSHIP IN C.I.O.
AFFILIATES BY DISCRIMINATING AGAINST ITS MEMBERS; AND FROM INTERFERING
WITH ITS EMPLOYEES' RIGHTS OF SELF-ORGANIZATION AND FREE COLLECTIVE
BARGAINING.  IT AFFIRMATIVELY ORDERED THE COMPANY TO GRANT EQUAL PASSES
TO THE C.I.O. AND THE A.F. OF L., IF GRANTED TO EITHER; TO MAKE WHOLE
AND OFFER FULL REINSTATEMENT TO THOSE EMPLOYEES FOUND TO HAVE SUFFERED
DISCRIMINATION; AND TO POST APPROPRIATE NOTICES ON THE WATERMAN
VESSELS. 

FN5  IN PART, THAT CONTRACT READS:  "SECTION 1.  IT IS UNDERSTOOD AND
AGREED THAT AS VACANCIES OCCUR, MEMBERS OF THE INTERNATIONAL SEAMEN'S
UNION OF AMERICA, WHO ARE CITIZENS OF THE UNITED STATES, SHALL BE GIVEN
PREFERENCE OF EMPLOYMENT, IF THEY CAN SATISFACTORILY QUALIFY TO FILL
THE RESPECTIVE POSITIONS; PROVIDED, HOWEVER, THAT THIS SECTION SHALL
NOT BE CONSTRUED TO REQUIRE THE DISCHARGE OF ANY EMPLOYEE WHO MAY NOT
DESIRE TO JOIN THE UNION, OR TO APPLY TO PROMPT RESHIPMENT, OR ABSENCE
DUE TO ILLNESS OR ACCIDENT."  ONLY THE DISCHARGE OF PELLETIER IS
CLAIMED BY THE COMPANY TO HAVE BEEN DUE TO INCOMPETENCY.  THE COURT
BELOW HELD THAT O'CONNOR HAD TAKEN A VACATION AND WAS NOT DISCHARGED,
AND WAS THUS ENTITLED TO VACATION PAY AND REINSTATEMENT; THE BOARD HAD
ORDERED THAT O'CONNOR BE MADE WHOLE "FOR ANY LOSS OF PAY" SUFFERED AS A
RESULT OF THE COMPANY'S ACTS WHICH THE BOARD FOUND HAD BEEN
DISCRIMINATORY. 

FN6  49 STAT. 449, 452, SECS. 7, 8. 

FN7  SEE 1 STAT. 131. 

FN8  SEE LENT TRAFFIC CO. V. GOULD, 2 F.2D 554, 556; UNITED STATES V.
WESTWOOD, 266 F. 696, 697; THE OCCIDENTAL (D.C.), 101 F. 997.  AS TO
THE HISTORY OF THIS LEGISLATION, SEE UNITED STATES V. THE BRIG GRACE
LATHROP, 95 U.S. 527. 

FN9  SEC. 8, (1), (3). 

FN10  NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN CORP., 301
U.S. 1, 45. 

FN11  SEE, E.G., ALABAMA MILLS V. SMITH, 237 ALA. 296; 186 SO. 699;
PEACOCK V. VIRGINIA-CAROLINA CHEMICAL CO., 221 ALA. 680; 130 SO. 411;
GREAT ATLANTIC & PACIFIC TEA CO. V. SUMMERS, 25 ALA. APP. 404; 148 SO.
332; CERT. DEN., 226 ALA. 635; 148 SO. 333.  CF. U.S. FIDELITY &
GUARANTY CO. V. MILLONAS, 206 ALA. 147; 89 SO. 732; 29 A.L.R. 520. 

FN12  CF. MORGAN V. COMMISSIONER, ANTE, P. 78; LYETH V. HOEY, 305
U.S. 188, 193. 

FN13  THE BOARD ORDERED, AS TO SHIPS' PASSES, THAT THE COMPANY 

"CEASE AND DESIST: 

"FROM REFUSING TO ISSUE PASSES TO AUTHORIZED REPRESENTATIVES OF THE
NATIONAL MARITIME UNION OF AMERICA IN EQUAL NUMBERS AND UNDER THE SAME
CONDITIONS AS IT GRANTS PASSES TO REPRESENTATIVES OF THE INTERNATIONAL
SEAMEN'S UNION OF AMERICA OR ITS SUCCESSORS; ...  " 

FN14  SEE 12 N.L.R.B. 766, 767, 769. 

FN15  AMERICAN FEDERATION OF LABOR V. LABOR BOARD, 308 U.S. 401;
NATIONAL LABOR RELATIONS BOARD V. FALK CORPORATION, 308 U.S. 453. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













CHAMBERS V. FLORIDA, 309 U.S. 227 


NO. 195.  ARGUED JANUARY 4, 1940.  - DECIDED FEBRUARY 12, 1940.  - 136
FLA. 568 - 187 SO. 156, REVERSED. 


1.  CONVICTIONS OF MURDER OBTAINED IN THE STATE COURTS BY USE OF
COERCED CONFESSIONS ARE VOID UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  P. 228. 

2.  THIS COURT IS NOT CONCLUDED BY THE FINDING OF A JURY THAT A
CONFESSION BY ONE CONVICTED IN A STATE COURT OF MURDER WAS VOLUNTARY,
BUT DETERMINES THAT QUESTION FOR ITSELF FROM THE EVIDENCE.  P. 228. 

3.  CONFESSIONS OF MURDER PROCURED BY REPEATED INQUISITIONS OF
PRISONERS WITHOUT FRIENDS OR COUNSELLORS PRESENT, AND UNDER
CIRCUMSTANCES CALCULATED TO INSPIRE TERROR, HELD COMPULSORY.  PP. 238
241. 

CHAMBERS ET AL. V. FLORIDA. 

CERTIORARI TO THE SUPREME COURT OF FLORIDA. 

CERTIORARI, 308 U.S. 541, TO REVIEW CONVICTIONS OF MURDER UPON THE
QUESTION WHETHER CONFESSIONS USED IN THE TRIAL WERE IN VIOLATION OF DUE
PROCESS OF LAW. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE GRAVE QUESTION PRESENTED BY THE PETITION FOR CERTIORARI, GRANTED
IN FORMA PAUPERIS,  FN1  IS WHETHER PROCEEDINGS IN WHICH CONFESSIONS
WERE UTILIZED, AND WHICH CULMINATED IN SENTENCES OF DEATH UPON FOUR
YOUNG NEGRO MEN IN THE STATE OF FLORIDA, FAILED TO AFFORD THE SAFEGUARD
OF THAT DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT. 
FN2 

FIRST.  THE STATE OF FLORIDA CHALLENGES OUR JURISDICTION TO LOOK
BEHIND THE JUDGMENTS BELOW CLAIMING THAT THE ISSUES OF FACT UPON WHICH
PETITIONERS BASE THEIR CLAIM THAT DUE PROCESS WAS DENIED THEM HAVE BEEN
FINALLY DETERMINED BECAUSE PASSED UPON BY A JURY.  HOWEVER, USE BY A
STATE OF AN IMPROPERLY OBTAINED CONFESSION MAY CONSTITUTE A DENIAL OF
DUE PROCESS OF LAW AS GUARANTEED IN THE FOURTEENTH AMENDMENT.  FN3
SINCE PETITIONERS HAVE SEASONABLY ASSERTED THE RIGHT UNDER THE FEDERAL
CONSTITUTION TO HAVE THEIR GUILT OR INNOCENCE OF A CAPITAL CRIME
DETERMINED WITHOUT RELIANCE UPON CONFESSIONS OBTAINED BY MEANS
PROSCRIBED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, WE
MUST DETERMINE INDEPENDENTLY WHETHER PETITIONERS' CONFESSIONS WERE SO
OBTAINED, BY REVIEW OF THE FACTS UPON WHICH THAT ISSUE NECESSARILY
TURNS.  FN4 

SECOND.  THE RECORD SHOWS - 

ABOUT NINE O'CLOCK ON THE NIGHT OF SATURDAY, MAY 13, 1933, ROBERT
DARSEY, AN ELDERLY WHITE MAN, WAS ROBBED AND MURDERED IN POMPANO,
FLORIDA, A SMALL TOWN IN BROWARD COUNTY ABOUT TWELVE MILES FROM FORT
LAUDERDALE, THE COUNTY SEAT.  THE OPINION OF THE SUPREME COURT OF
FLORIDA AFFIRMING PETITIONERS' CONVICTION FOR THIS CRIME STATED THAT
"IT WAS ONE OF THOSE CRIMES THAT INDUCED AN ENRAGED COMMUNITY  ..." 
FN5  AND, AS THE DISSENTING JUDGE POINTED OUT, "THE MURDER AND ROBBERY
OF THE ELDERLY MR. DARSEY  ...  WAS A MOST DASTARDLY AND ATROCIOUS
CRIME.  IT NATURALLY AROUSED GREAT AND WELL JUSTIFIED PUBLIC
INDIGNATION."  FN6 

BETWEEN 9:30 AND 10 O'CLOCK AFTER THE MURDER, PETITIONER CHARLIE
DAVIS WAS ARRESTED, AND WITHIN THE NEXT TWENTY-FOUR HOURS FROM TWENTY
FIVE TO FORTY NEGROES LIVING IN THE COMMUNITY, INCLUDING PETITIONERS
WILLIAMSON, CHAMBERS, AND WOODWARD, WERE ARRESTED WITHOUT WARRANTS AND
CONFINED IN THE BROWARD COUNTY JAIL, AT FORT LAUDERDALE.  ON THE NIGHT
OF THE CRIME, ATTEMPTS TO TRAIL THE MURDERERS BY BLOODHOUNDS BROUGHT J.
T. WILLIAMS, A CONVICT GUARD, INTO THE PROCEEDINGS.  FROM THEN UNTIL
CONFESSIONS WERE OBTAINED AND PETITIONERS WERE SENTENCED, HE TOOK A
PROMINENT PART.  ABOUT 11 P.M. ON THE FOLLOWING MONDAY, MAY 15, THE
SHERIFF AND WILLIAMS TOOK SEVERAL OF THE IMPRISONED NEGROES, INCLUDING
WILLIAMSON AND CHAMBERS, TO THE DADE COUNTY JAIL AT MIAMI.  THE SHERIFF
TESTIFIED THAT THEY WERE TAKEN THERE BECAUSE HE FELT A POSSIBILITY OF
MOB VIOLENCE AND "WANTED TO GIVE PROTECTION TO EVERY PRISONER  ...  IN
JAIL."  EVIDENCE OF PETITIONERS WAS THAT ON THE WAY TO MIAMI A
MOTORCYCLE PATROLMAN DREW UP TO THE CAR IN WHICH THE MEN WERE RIDING
AND THE SHERIFF "TOLD THE COP THAT HE HAD SOME NEGROES THAT HE - (WAS)
TAKING DOWN TO MIAMI TO ESCAPE A MOB."  THIS STATEMENT WAS NOT DENIED
BY THE SHERIFF IN HIS TESTIMONY AND WILLIAMS DID NOT TESTIFY AT ALL;
WILLIAMS APPARENTLY HAS NOW DISAPPEARED.  UPON ORDER OF WILLIAMS,
PETITIONER WILLIAMSON WAS KEPT IN THE DEATH CELL OF THE DADE COUNTY
JAIL.  THE PRISONERS THUS SPIRITED TO MIAMI WERE RETURNED TO THE FORT
LAUDERDALE JAIL THE NEXT DAY, TUESDAY. 

IT IS CLEAR FROM THE EVIDENCE OF BOTH THE STATE AND PETITIONERS THAT
FROM SUNDAY, MAY 14, TO SATURDAY, MAY 20, THE THIRTY TO FORTY NEGRO
SUSPECTS WERE SUBJECTED TO QUESTIONING AND CROSS QUESTIONING (WITH THE
EXCEPTION THAT SEVERAL OF THE SUSPECTS WERE IN DADE COUNTY JAIL OVER
ONE NIGHT).  FROM THE AFTERNOON OF SATURDAY, MAY 20, UNTIL SUNRISE OF
THE 21ST, PETITIONERS AND POSSIBLY ONE OR TWO OTHERS UNDERWENT
PERSISTENT AND REPEATED QUESTIONING.  THE SUPREME COURT OF FLORIDA SAID
THE QUESTIONING "WAS IN PROGRESS SEVERAL DAYS AND ALL NIGHT BEFORE THE
CONFESSIONS WERE SECURED" AND REFERRED TO THE LAST NIGHT AS AN "ALL
NIGHT VIGIL."  THE SHERIFF WHO SUPERVISED THE PROCEDURE OF CONTINUED
INTERROGATION TESTIFIED THAT HE QUESTIONED THE PRISONERS "IN THE DAY
TIME ALL THE WEEK," BUT DID NOT QUESTION THEM DURING ANY NIGHT BEFORE
THE ALL NIGHT VIGIL OF SATURDAY, MAY 20, BECAUSE AFTER HAVING
"QUESTIONED THEM ALL DAY  ...  (HE) WAS TIRED."  OTHER EVIDENCE OF THE
STATE WAS "THAT THE OFFICERS OF BROWARD COUNTY WERE IN THAT JAIL ALMOST
CONTINUALLY DURING THE WHOLE WEEK QUESTIONING THESE BOYS, AND OTHER
BOYS, IN CONNECTION WITH THIS" CASE. 

THE PROCESS OF REPEATED QUESTIONING TOOK PLACE IN THE JAILER'S
QUARTERS ON THE FOURTH FLOOR OF THE JAIL.  DURING THE WEEK FOLLOWING
THEIR ARREST AND UNTIL THEIR CONFESSIONS WERE FINALLY ACCEPTABLE TO THE
STATE'S ATTORNEY IN THE EARLY DAWN OF SUNDAY, MAY 21ST, PETITIONERS AND
THEIR FELLOW PRISONERS WERE LED ONE AT A TIME FROM THEIR CELLS TO THE
QUESTIONING ROOM, QUIZZED, AND RETURNED TO THEIR CELLS TO AWAIT ANOTHER
TURN.  SO FAR AS APPEARS, THE PRISONERS AT NO TIME DURING THE WEEK WERE
PERMITTED TO SEE OR CONFER WITH COUNSEL OR A SINGLE FRIEND OR
RELATIVE.  WHEN CARRIED SINGLY FROM HIS CELL AND SUBJECTED TO
QUESTIONING, EACH FOUND HIMSELF, A SINGLE PRISONER, SURROUNDED IN A
FOURTH FLOOR JAIL ROOM BY FOUR TO TEN MEN, THE COUNTY SHERIFF, HIS
DEPUTIES, A CONVICT GUARD, AND OTHER WHITE OFFICERS AND CITIZENS OF THE
COMMUNITY. 

THE TESTIMONY IS IN CONFLICT AS TO WHETHER ALL FOUR PETITIONERS WERE
CONTINUALLY THREATENED AND PHYSICALLY MISTREATED UNTIL THEY FINALLY, IN
HOPELESS DESPERATION AND FEAR OF THEIR LIVES, AGREED TO CONFESS ON
SUNDAY MORNING JUST AFTER DAYLIGHT.  BE THAT AS IT MAY, IT IS CERTAIN
THAT BY SATURDAY, MAY 20TH, FIVE DAYS OF CONTINUED QUESTIONING HAD
ELICITED NO CONFESSION.  ADMITTEDLY, A CONCENTRATION OF EFFORT -
DIRECTED AGAINST A SMALL NUMBER OF PRISONERS INCLUDING PETITIONERS - ON
THE PART OF THE QUESTIONERS, PRINCIPALLY THE SHERIFF AND WILLIAMS, THE
CONVICT GUARD, BEGAN ABOUT 3:30 THAT SATURDAY AFTERNOON.  FROM THAT
HOUR ON, WITH ONLY SHORT INTERVALS FOR FOOD AND REST FOR THE
QUESTIONERS - "THEY ALL STAYED UP ALL NIGHT."  "THEY BRING ONE OF THEM
AT A TIME BACKWARDS AND FORWARDS  ...  UNTIL THEY CONFESSED."  AND
WILLIAMS WAS PRESENT AND PARTICIPATING THAT NIGHT, DURING THE WHOLE OF
WHICH THE JAIL COOK SERVED COFFEE AND SANDWICHES TO THE MEN WHO
"GRILLED" THE PRISONERS. 

SOMETIME IN THE EARLY HOURS OF SUNDAY, THE 21ST, PROBABLY ABOUT 2:30
A.M., WOODWARD APPARENTLY "BROKE" - AS ONE OF THE STATE'S WITNESSES PUT
IT - AFTER A FIFTEEN OR TWENTY MINUTE PERIOD OF QUESTIONING BY
WILLIAMS, THE SHERIFF AND THE CONSTABLE "ONE RIGHT AFTER THE OTHER." 
THE STATE'S ATTORNEY WAS AWAKENED AT HIS HOME, AND CALLED TO THE JAIL. 
HE CAME, BUT WAS DISSATISFIED WITH THE CONFESSION OF WOODWARD WHICH HE
TOOK DOWN IN WRITING AT THAT TIME, AND SAID SOMETHING LIKE "TEAR THIS
PAPER UP, THAT ISN'T WHAT I WANT, WHEN YOU GET SOMETHING WORTH WHILE
CALL ME."  FN7  THIS SAME STATE'S ATTORNEY CONDUCTED THE STATE'S CASE
IN THE CIRCUIT COURT BELOW AND ALSO MADE HIMSELF A WITNESS, BUT DID NOT
TESTIFY AS TO WHY WOODWARD'S FIRST ALLEGED CONFESSION WAS
UNSATISFACTORY TO HIM.  THE SHERIFF DID, HOWEVER: 

"A. NO, IT WASN'T FALSE, PART OF IT WAS TRUE AND PART OF IT WASN'T;
MR. MAIRE (THE STATE'S ATTORNEY) SAID THERE WASN'T ENOUGH.  IT WASN'T
CLEAR ENOUGH. 

"  ... 

"Q.  ...  WAS THAT VOLUNTARILY MADE AT THAT TIME? 

"A.  YES, SIR. 

"Q.  IT WAS VOLUNTARILY MADE THAT TIME? 

"A.  YES, SIR. 

"Q.  YOU DIDN'T CONSIDER IT SUFFICIENT? 

"A.  MR. MAIRE. 

"Q.  MR. MAIRE TOLD YOU THAT IT WASN'T SUFFICIENT, SO YOU KEPT ON
QUESTIONING HIM UNTIL THE TIME YOU GOT HIM TO MAKE A FREE AND VOLUNTARY
CONFESSION OF OTHER MATTERS THAT HE HADN'T INCLUDED IN THE FIRST? 

"A.  NO, SIR, WE QUESTIONED HIM THERE AND WE CAUGHT HIM IN LIES. 

"Q.  CAUGHT ALL OF THEM TELLING LIES? 

"A.  CAUGHT EVERY ONE OF THEM LYING TO US THAT NIGHT, YES, SIR. 

"Q.  DID YOU TELL THEM THEY WERE LYING? 

"A.  YES, SIR. 

"Q.  JUST HOW WOULD YOU TELL THEM THAT? 

"A.  JUST LIKE I AM TALKING TO YOU. 

"Q.  YOU SAID 'JACK, YOU TOLD ME A LIE'? 

"A.  YES, SIR," 

AFTER ONE WEEK'S CONSTANT DENIAL OF ALL GUILT, PETITIONERS "BROKE." 

JUST BEFORE SUNRISE, THE STATE OFFICIALS GOT SOMETHING "WORTHWHILE"
FROM PETITIONERS WHICH THE STATE'S ATTORNEY WOULD "WANT"; AGAIN HE WAS
CALLED; HE CAME; IN THE PRESENCE OF THOSE WHO HAD CARRIED ON AND
WITNESSED THE ALLNIGHT QUESTIONING, HE CAUSED HIS QUESTIONS AND
PETITIONERS' ANSWERS TO BE STENOGRAPHICALLY REPORTED.  THESE ARE THE
CONFESSIONS UTILIZED BY THE STATE TO OBTAIN THE JUDGMENTS UPON WHICH
PETITIONERS WERE SENTENCED TO DEATH.  NO FORMAL CHARGES HAD BEEN
BROUGHT BEFORE THE CONFESSIONS.  TWO DAYS THEREAFTER, PETITIONERS WERE
INDICTED, WERE ARRAIGNED AND WILLIAMSON AND WOODWARD PLEADED GUILTY;
CHAMBERS AND DAVIS PLEADED NOT GUILTY.  LATER THE SHERIFF, ACCOMPANIED
BY WILLIAMS, INFORMED AN ATTORNEY WHO PRESUMABLY HAD BEEN APPOINTED TO
DEFEND DAVIS THAT DAVIS WANTED HIS PLEA OF NOT GUILTY WITHDRAWN.  THIS
WAS DONE, AND DAVIS THEN PLEADED GUILTY.  WHEN CHAMBERS WAS TRIED, HIS
CONVICTION RESTED UPON HIS CONFESSION AND TESTIMONY OF THE OTHER THREE
CONFESSORS.  THE CONVICT GUARD AND THE SHERIFF "WERE IN THE COURT ROOM
SITTING DOWN IN A SEAT."  AND FROM ARREST UNTIL SENTENCED TO DEATH,
PETITIONERS WERE NEVER - EITHER IN JAIL OR IN COURT - WHOLLY REMOVED
FROM THE CONSTANT OBSERVATION, INFLUENCE, CUSTODY AND CONTROL OF THOSE
WHOSE PERSISTENT PRESSURE BROUGHT ABOUT THE SUNRISE CONFESSIONS. 

THIRD.  THE SCOPE AND OPERATION OF THE FOURTEENTH AMENDMENT HAVE BEEN
FRUITFUL SOURCES OF CONTROVERSY IN OUR CONSTITUTIONAL HISTORY.  FN8
HOWEVER, IN VIEW OF ITS HISTORICAL SETTING AND THE WRONGS WHICH CALLED
IT INTO BEING, THE DUE PROCESS PROVISION OF THE FOURTEENTH AMENDMENT -
JUST AS THAT IN THE FIFTH - HAS LED FEW TO DOUBT THAT IT WAS INTENDED
TO GUARANTEE PROCEDURAL STANDARDS ADEQUATE AND APPROPRIATE, THEN AND
THEREAFTER,  FN9  TO PROTECT, AT ALL TIMES, PEOPLE CHARGED WITH OR
SUSPECTED OF CRIME BY THOSE HOLDING POSITIONS OF POWER AND AUTHORITY. 
TYRANNICAL GOVERNMENTS HAD IMMEMORIALLY UTILIZED DICTATORIAL CRIMINAL
PROCEDURE AND PUNISHMENT TO MAKE SCAPEGOATS OF THE WEAK, OR OF HELPLESS
POLITICAL, RELIGIOUS, OR RACIAL MINORITIES AND THOSE WHO DIFFERED, WHO
WOULD NOT CONFORM AND WHO RESISTED TYRANNY.  THE INSTRUMENTS OF SUCH
GOVERNMENTS WERE, IN THE MAIN, TWO.  CONDUCT, INNOCENT WHEN ENGAGED IN,
WAS SUBSEQUENTLY MADE BY FIAT CRIMINALLY PUNISHABLE WITHOUT
LEGISLATION.  AND A LIBERTY LOVING PEOPLE WON THE PRINCIPLE THAT
CRIMINAL PUNISHMENTS COULD NOT BE INFLICTED SAVE FOR THAT WHICH PROPER
LEGISLATIVE ACTION HAD ALREADY BY "THE LAW OF THE LAND" FORBIDDEN WHEN
DONE.  BUT EVEN MORE WAS NEEDED.  FROM THE POPULAR HATRED AND
ABHORRENCE OF ILLEGAL CONFINEMENT, TORTURE AND EXTORTION OF CONFESSIONS
OF VIOLATIONS OF THE "LAW OF THE LAND" EVOLVED THE FUNDAMENTAL IDEA
THAT NO MAN'S LIFE, LIBERTY OR PROPERTY BE FORFEITED AS CRIMINAL
PUNISHMENT FOR VIOLATION OF THAT LAW UNTIL THERE HAD BEEN A CHARGE
FAIRLY MADE AND FAIRLY TRIED IN A PUBLIC TRIBUNAL FREE OF PREJUDICE,
PASSION, EXCITEMENT, AND TYRANNICAL POWER.  THUS, AS ASSURANCE AGAINST
ANCIENT EVILS, OUR COUNTRY, IN ORDER TO PRESERVE "THE BLESSINGS OF
LIBERTY," WROTE INTO ITS BASIC LAW THE REQUIREMENT, AMONG OTHERS, THAT
THE FORFEITURE OF THE LIVES, LIBERTIES OR PROPERTY OF PEOPLE ACCUSED OF
CRIME CAN ONLY FOLLOW IF PROCEDURAL SAFEGUARDS OF DUE PROCESS HAVE BEEN
OBEYED.  FN10 

THE DETERMINATION TO PRESERVE AN ACCUSED'S RIGHT TO PROCEDURAL DUE
PROCESS SPRANG IN LARGE PART FROM KNOWLEDGE OF THE HISTORICAL TRUTH
THAT THE RIGHTS AND LIBERTIES OF PEOPLE ACCUSED OF CRIME COULD NOT BE
SAFELY ENTRUSTED TO SECRET INQUISITORIAL PROCESSES.  THE TESTIMONY OF
CENTURIES, IN GOVERNMENTS OF VARYING KINDS OVER POPULATIONS OF
DIFFERENT RACES AND BELIEFS, STOOD AS PROOF THAT PHYSICAL AND MENTAL
TORTURE AND COERCION HAD BROUGHT ABOUT THE TRAGICALLY UNJUST SACRIFICES
OF SOME WHO WERE THE NOBLEST AND MOST USEFUL OF THEIR GENERATIONS.  THE
RACK, THE THUMBSCREW, THE WHEEL, SOLITARY CONFINEMENT, PROTRACTED
QUESTIONING AND CROSS QUESTIONING, AND OTHER INGENIOUS FORMS OF
ENTRAPMENT OF THE HELPLESS OR UNPOPULAR HAD LEFT THEIR WAKE OF
MUTILATED BODIES AND SHATTERED MINDS ALONG THE WAY TO THE CROSS, THE
GUILLOTINE, THE STAKE AND THE HANGMAN'S NOOSE.  AND THEY WHO HAVE
SUFFERED MOST FROM SECRET AND DICTATORIAL PROCEEDINGS HAVE ALMOST
ALWAYS BEEN THE POOR, THE IGNORANT, THE NUMERICALLY WEAK, THE
FRIENDLESS, AND THE POWERLESS.  FN11 

THIS REQUIREMENT - OF CONFORMING TO FUNDAMENTAL STANDARDS OF
PROCEDURE IN CRIMINAL TRIALS - WAS MADE OPERATIVE AGAINST THE STATES BY
THE FOURTEENTH AMENDMENT.  WHERE ONE OF SEVERAL ACCUSED HAD LIMPED INTO
THE TRIAL COURT AS A RESULT OF ADMITTED PHYSICAL MISTREATMENT INFLICTED
TO OBTAIN CONFESSIONS UPON WHICH A JURY HAD RETURNED A VERDICT OF
GUILTY OF MURDER, THIS COURT RECENTLY DECLARED, BROWN V. MISSISSIPPI,
THAT "IT WOULD BE DIFFICULT TO CONCEIVE OF METHODS MORE REVOLTING TO
THE SENSE OF JUSTICE THAN THOSE TAKEN TO PROCURE THE CONFESSIONS OF
THESE PETITIONERS, AND THE USE OF THE CONFESSIONS THUS OBTAINED AS THE
BASIS FOR CONVICTION AND SENTENCE WAS A CLEAR DENIAL OF DUE PROCESS." 
FN12    HERE, THE RECORD DEVELOPS A SHARP CONFLICT UPON THE ISSUE OF
PHYSICAL VIOLENCE AND MISTREATMENT, BUT SHOWS, WITHOUT CONFLICT, THE
DRAGNET METHODS OF ARREST ON SUSPICION WITHOUT WARRANT, AND THE
PROTRACTED QUESTIONING AND CROSS QUESTIONING OF THESE IGNORANT YOUNG
COLORED TENANT FARMERS BY STATE OFFICERS AND OTHER WHITE CITIZENS, IN A
FOURTH FLOOR JAIL ROOM, WHERE AS PRISONERS THEY WERE WITHOUT FRIENDS,
ADVISERS OR COUNSELORS, AND UNDER CIRCUMSTANCES CALCULATED TO BREAK THE
STRONGEST NERVES AND THE STOUTEST RESISTANCE.  JUST AS OUR DECISION IN
BROWN V. MISSISSIPPI WAS BASED UPON THE FACT THAT THE CONFESSIONS WERE
THE RESULT OF COMPULSION, SO IN THE PRESENT CASE, THE ADMITTED
PRACTICES WERE SUCH AS TO JUSTIFY THE STATEMENT THAT "THE UNDISPUTED
FACTS SHOWED THAT COMPULSION WAS APPLIED."  FN13 

FOR FIVE DAYS PETITIONERS WERE SUBJECTED TO INTERROGATIONS
CULMINATING IN SATURDAY'S (MAY 20TH) ALL NIGHT EXAMINATION.  OVER A
PERIOD OF FIVE DAYS THEY STEADILY REFUSED TO CONFESS AND DISCLAIMED ANY
GUILT.  THE VERY CIRCUMSTANCES SURROUNDING THEIR CONFINEMENT AND THEIR
QUESTIONING WITHOUT ANY FORMAL CHARGES HAVING BEEN BROUGHT, WERE SUCH
AS TO FILL PETITIONERS WITH TERROR AND FRIGHTFUL MISGIVINGS.  FN14
SOME WERE PRACTICAL STRANGERS IN THE COMMUNITY; THREE WERE ARRESTED IN
A ONE-ROOM FARM TENANT HOUSE WHICH WAS THEIR HOME; THE HAUNTING FEAR OF
MOB VIOLENCE WAS AROUND THEM IN AN ATMOSPHERE CHARGED WITH EXCITEMENT
AND PUBLIC INDIGNATION.  FROM VIRTUALLY THE MOMENT OF THEIR ARREST
UNTIL THEIR EVENTUAL CONFESSIONS, THEY NEVER KNEW JUST WHEN ANY ONE
WOULD BE CALLED BACK TO THE FOURTH FLOOR ROOM, AND THERE, SURROUNDED BY
HIS ACCUSERS AND OTHERS, INTERROGATED BY MEN WHO HELD THEIR VERY LIVES
SO FAR AS THESE IGNORANT PETITIONERS COULD KNOW - IN THE BALANCE.  THE
REJECTION OF PETITIONER WOODWARD'S FIRST "CONFESSION," GIVEN IN THE
EARLY HOURS OF SUNDAY MORNING, BECAUSE IT WAS FOUND WANTING,
DEMONSTRATES THE RELENTLESS TENACITY WHICH "BROKE" PETITIONERS' WILL
AND RENDERED THEM HELPLESS TO RESIST THEIR ACCUSERS FURTHER.  TO PERMIT
HUMAN LIVES TO BE FORFEITED UPON CONFESSIONS THUS OBTAINED WOULD MAKE
OF THE CONSTITUTIONAL REQUIREMENT OF DUE PROCESS OF LAW A MEANINGLESS
SYMBOL. 

WE ARE NOT IMPRESSED BY THE ARGUMENT THAT LAW ENFORCEMENT METHODS
SUCH AS THOSE UNDER REVIEW ARE NECESSARY TO UPHOLD OUR LAWS.  FN15  THE
CONSTITUTION PROSCRIBES SUCH LAWLESS MEANS IRRESPECTIVE OF THE END. 
AND THIS ARGUMENT FLOUTS THE BASIC PRINCIPLE THAT ALL PEOPLE MUST STAND
ON AN EQUALITY BEFORE THE BAR OF JUSTICE IN EVERY AMERICAN COURT. 
TODAY, AS IN AGES PAST, WE ARE NOT WITHOUT TRAGIC PROOF THAT THE
EXALTED POWER OF SOME GOVERNMENTS TO PUNISH MANUFACTURED CRIME
DICTATORIALLY IS THE HANDMAID OF TYRANNY.  UNDER OUR CONSTITUTIONAL
SYSTEM, COURTS STAND AGAINST ANY WINDS THAT BLOW AS HAVENS OF REFUGE
FOR THOSE WHO MIGHT OTHERWISE SUFFER BECAUSE THEY ARE HELPLESS, WEAK,
OUTNUMBERED, OR BECAUSE THEY ARE NON-CONFORMING VICTIMS OF PREJUDICE
AND PUBLIC EXCITEMENT.  DUE PROCESS OF LAW, PRESERVED FOR ALL BY OUR
CONSTITUTION, COMMANDS THAT NO SUCH PRACTICE AS THAT DISCLOSED BY THIS
RECORD SHALL SEND ANY ACCUSED TO HIS DEATH.  NO HIGHER DUTY, NO MORE
SOLEMN RESPONSIBILITY, RESTS UPON THIS COURT, THAN THAT OF TRANSLATING
INTO LIVING LAW AND MAINTAINING THIS CONSTITUTIONAL SHIELD DELIBERATELY
PLANNED AND INSCRIBED FOR THE BENEFIT OF EVERY HUMAN BEING SUBJECT TO
OUR CONSTITUTION - OF WHATEVER RACE, CREED OR PERSUASION. 

THE SUPREME COURT OF FLORIDA WAS IN ERROR AND ITS JUDGMENT IS
REVERSED. 

FN1  308 U.S. 541. 

FN2  PETITIONERS WILLIAMSON, WOODWARD AND DAVIS PLEADED GUILTY OF
MURDER AND PETITIONER CHAMBERS WAS FOUND GUILTY BY A JURY; ALL WERE
SENTENCED TO DEATH, AND THE SUPREME COURT OF FLORIDA AFFIRMED.  111
FLA. 707, 151 SO. 499; 152 SO. 437.  UPON THE ALLEGATION THAT, UNKNOWN
TO THE TRIAL JUDGE, THE CONFESSIONS ON WHICH THE JUDGMENTS AND
SENTENCES OF DEATH WERE BASED WERE NOT VOLUNTARY AND HAD BEEN OBTAINED
BY COERCION AND DURESS, THE STATE SUPREME COURT GRANTED LEAVE TO
PRESENT A PETITION FOR WRIT OF ERROR CORAM NOBIS TO THE BROWARD COUNTY
CIRCUIT COURT, 111 FLA. 707; 152 SO. 437.  THE CIRCUIT COURT DENIED THE
PETITION WITHOUT TRIAL OF THE ISSUES RAISED BY IT AND THE STATE SUPREME
COURT REVERSED AND ORDERED THE ISSUES SUBMITTED TO A JURY.  117 FLA.
642; 158 SO. 153.  UPON A VERDICT ADVERSE TO PETITIONERS, THE CIRCUIT
COURT RE-AFFIRMED THE ORIGINAL JUDGMENTS AND SENTENCES.  AGAIN, THE
STATE SUPREME COURT REVERSED, HOLDING THAT THE ISSUE OF FORCE, FEAR OF
PERSONAL VIOLENCE AND DURESS HAD BEEN PROPERLY SUBMITTED TO THE JURY,
BUT THE ISSUE RAISED BY THE ASSIGNMENT OF ERROR ALLEGING THAT THE
CONFESSIONS AND PLEAS "WERE NOT IN FACT FREELY AND VOLUNTARILY MADE"
HAD NOT BEEN CLEARLY SUBMITTED TO THE JURY.  123 FLA. 734, 737; 167 SO.
697, 700.  A CHANGE OF VENUE, TO PALM BEACH COUNTY, WAS GRANTED, A JURY
AGAIN FOUND AGAINST PETITIONERS AND THE BROWARD CIRCUIT COURT ONCE MORE
REAFFIRMED THE JUDGMENTS AND SENTENCES OF DEATH.  THE SUPREME COURT OF
FLORIDA, ONE JUDGE DISSENTING, AFFIRMED, 136 FLA. 568; 187 SO. 156. 
WHILE THE PETITION THUS SEEKS REVIEW OF THE JUDGMENTS AND SENTENCES OF
DEATH RENDERED IN THE BROWARD CIRCUIT COURT AND REAFFIRMED IN THE PALM
BEACH CIRCUIT COURT, THE EVIDENCE BEFORE US CONSISTS SOLELY OF THE
TRANSCRIPT OF PROCEEDINGS (ON WRIT OF ERROR CORAM NOBIS) IN PLAM BEACH
COUNTY COURT WHEREIN THE CIRCUMSTANCES SURROUNDING THE OBTAINING OF
PETITIONERS' ALLEGED CONFESSIONS WERE PASSED ON BY A JURY. 

FN3  BROWN V. MISSISSIPPI, 297 U.S. 278. 

FN4  PIERRE V. LOUISIANA, 306 U.S. 354, 358; NORRIS V. ALABAMA, 294
U.S. 587, 590. 

FN5 136 FLA. 568, 572; 187 SO. 156, 157. 

FN6  ID., 574. 

FN7  A CONSTABLE OF THE COMMUNITY, TESTIFYING ABOUT THIS PARTICULAR
INCIDENT, SAID IN PART: 

"Q.  WERE YOU THERE WHEN MR. MAIRE (STATE'S ATTORNEY) TALKED TO
WALTER WOODWARD THE FIRST TIME HE CAME OVER THERE? 

"A.  YES, SIR. 

"Q.  TAKE HIS CONFESSION DOWN IN WRITING? 

"A.  YES. 

"  ... 

"Q.  IF HE MADE A CONFESSION WHY DID YOU ALL KEEP ON QUESTIONING HIM
ABOUT IT.  AS A MATTER OF FACT, WHAT HE SAID THAT TIME WASN'T WHAT YOU
WANTED HIM TO SAY, WAS IT? 

"A.  IT WASN'T WHAT HE SAID THE LAST TIME. 

"Q.  IT WASN'T WHAT YOU WANTED HIM TO SAY, WAS IT? 

"A.  WE DIDN'T THINK IT WAS ALL CORRECT. 

"  ... 

"Q.  WHAT PART OF IT DID YOU THINK WASN'T CORRECT.  WOULD YOU SAY
WHAT HE TOLD YOU THERE AT THAT TIME WAS FREELY AND VOLUNTARILY MADE? 

"A.  YES, SIR. 

"  ... 

"Q.  WHAT HE FREELY AND VOLUNTARILY TOLD YOU IN THE WAY OF A
CONFESSION AT THAT TIME, IT WASN'T WHAT YOU WANTED? 

"A.  IT DIDN'T MAKE UP LIKE IT SHOULD. 

"Q.  WHAT MATTER DIDN'T MAKE UP? 

"A.  THERE WAS SOME THINGS HE TOLD US THAT COULDN'T POSSIBLE BE
TRUE. 

"  ... 

"Q.  WHAT DID MR. MAIRE SAY ABOUT IT AT THAT TIME; DID YOU HEAR MR.
MAIRE SAY AT THIS TIME 'TEAR THIS PAPER UP, THAT ISN'T WHAT I WANT,
WHEN YOU GET SOMETHING WORTH WHILE CALL ME,' OR WORDS TO THAT EFFECT? 

"A.  SOMETHING SIMILAR TO THAT. 

"Q.  THAT DID HAPPEN THAT NIGHT? 

"A.  YES, SIR. 

"Q.  THAT WAS IN THE PRESENCE OF WALTER WOODWARD? 

"A.  YES, SIR." 

AND PETITIONER WOODWARD TESTIFIED ON THIS SUBJECT AS FOLLOWS: 

"A.  ...  I WAS TAKEN OUT SEVERAL TIMES ON THE NIGHT OF THE 20TH  ...
SO I STILL DENIED IT. ... 

"  ... 

"A.  HE SAID I HAD TOLD LIES AND KEPT HIM SITTING UP ALL THE WEEK AND
HE WAS TIRED AND IF I DIDN'T COME ACROSS I WOULD NEVER SEE THE SUN
RISE. 

"  ... 

"A.  ...  THEN I WAS TAKEN BACK TO THE PRIVATE CELL.  ...  AND
SHORTLY AFTER THAT THEY COME BACK, SHORTLY AFTER THAT, TWENTY OR TWENTY
FIVE MINUTES, AND BRING ME OUT.  ...  I (TOLD WILLIAMS) IF HE WOULD
SEND FOR THE STATE ATTORNEY HE COULD TAKE DOWN WHAT I SAID, I SAID SEND
FOR HIM AND I WILL TELL HIM WHAT I KNOW.  SO HE SENT FOR MR. MAIRE SOME
TIME DURING SATURDAY NIGHT, MUST HAVE BEEN AROUND ONE OR TWO O'CLOCK IN
THE NIGHT, IT WAS AFTER MIDNIGHT, AND SO HE SENT FOR MR. MAIRE, I
DIDN'T KNOW MR. MAIRE THEN, BUT I KNOW HIM NOW BY HIS FACE. 

"  ... 

"A.  WELL HE COME IN AND SAID 'THIS BOY GOT SOMETHING TO TELL ME' AND
CAPTAIN WILLIAMS SAYS 'YES, HE IS READY TO TELL YOU.'  ... 

"  ... 

"  ...  MR. MAIRE HAD A PEN AND A BOOK TO TAKE DOWN WHAT I TOLD HIM,
WHICH HE SAID HAD TO BE ON THE TYPEWRITER, BUT I DIDN'T SEE ANY
TYPEWRITER, I SAW HIM WITH A PEN AND BOOK, SO WHETHER IT WAS SHORTHAND
OR REGULAR WRITING I DON'T KNOW, BUT HE TOOK IT DOWN WITH PEN.  AFTER I
TOLD HIM MY STORY HE SAID IT WAS NO GOOD, AND HE TORE IT UP.  ... 

"  ... 

"Q.  WHAT WAS IT MR. MAIRE SAID? 

"A.  HE TOLD THEM IT WASN'T NO GOOD, WHEN THEY GOT SOMETHING OUT OF
ME HE WOULD BE BACK.  IT WAS LATE HE HAD TO GO BACK AND GO TO BED. 

"  ... 

"A.  ...  I WASN'T IN THE CELL LONG BEFORE THEY COME BACK.  ... 

"  ... 

"Q.  HOW LONG WAS THAT FROM THE TIME YOU WAS BROUGHT INTO THAT ROOM
UNTIL MR. MAIRE LEFT THERE? 

"A.  SOMETHING LIKE TWO OR THREE HOURS, I GUESS, BECAUSE IT WAS
AROUND SUNRISE WHEN I WENT INTO THE ROOM. 

"Q.  HAD YOU SLEPT ANY THAT NIGHT, WALTER? 

"A.  NO, SIR.  I WAS WALKED ALL NIGHT, NOT CONTINUALLY, BUT I DIDN'T
HAVE NO TIME TO SLEEP EXCEPT IN SHORT SPACES OF THE NIGHT. 

"  ... 

"Q.  WHEN MR. MAIRE GOT THERE IT WAS AFTER DAYLIGHT? 

"A.  YES, SIR. 

"  ... 

"Q.  WHY DID YOU SAY TO THEM THAT MORNING ANYTHING AFTER YOU WERE
BROUGHT INTO THE ROOM? 

"A.  BECAUSE I WAS SCARED,  ...  " 

FN8  THERE HAVE BEEN LONG-CONTINUED AND CONSTANTLY RECURRING
DIFFERENCES OF OPINION AS TO WHETHER GENERAL LEGISLATIVE ACTS
REGULATING THE USE OF PROPERTY COULD BE INVALIDATED AS VIOLATING THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  MUNN V. ILLINOIS, 94
U.S. 113, 125, DISSENT 136-154; CHICAGO, M. & ST. P.R. CO. V.
MINNESOTA, 134 U.S. 418, DISSENT 461-466.  AND THERE HAS BEEN A CURRENT
OF OPINION - WHICH THIS COURT HAS DECLINED TO ADOPT IN MANY PREVIOUS
CASES - THAT THE FOURTEENTH AMENDMENT WAS INTENDED TO MAKE SECURE
AGAINST STATE INVASION ALL THE RIGHTS, PRIVILEGES AND IMMUNITIES
PROTECTED FROM FEDERAL VIOLATION BY THE BILL OF RIGHTS (AMENDMENTS I TO
VIII).  SEE, E.G., TWINING V. NEW JERSEY, 211 U.S. 78, 98-9, MR.
JUSTICE HARLAN, DISSENTING, 114; MAXWELL V. DOW, 176 U.S. 581, DISSENT
606; O'NEIL V. VERMONT, 144 U.S. 323, DISSENT 361; PALKO V.
CONNECTICUT, 302 U.S. 319, 325, 326; HAGUE V. C.I.O., 307 U.S. 496. 

FN9  CF. WEEMS V. UNITED STATES, 217 U.S. 349, 372, 373, AND DISSENT
SETTING OUT (P. 396) ARGUMENT OF PATRICK HENRY, 3 ELLIOT, DEBATES,
447. 

FN10  AS ADOPTED, THE CONSTITUTION PROVIDED, "THE PRIVILEGE OF THE
WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED, UNLESS WHEN IN CASES OF
REBELLION OR INVASION THE PUBLIC SAFETY MAY REQUIRE IT."  (ART. I, SEC.
9.)  "NO BILL OF ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED" (ID.),
"NO STATE SHALL  ...  PASS ANY BILL OF ATTAINDER, OR EX POST FACTO
LAW.  ...  "  (ID., SEC. 10), AND "NO PERSON SHALL BE CONVICTED OF
TREASON UNLESS ON THE TESTIMONY OF TWO WITNESSES TO THE SAME OVERT ACT,
OR ON CONFESSION IN OPEN COURT" (ART. III, SEC. 3).  THE BILL OF RIGHTS
(AMEND.  I TO VIII).  CF. MAGNA CARTA, 1297(25 EDW.  1); THE PETITION
OF RIGHT, 1627(3 CAR.  1, C. 1.); THE HABEAS CORPUS ACT, 1640(16 CAR. 
1, C. 10.), AN ACT FOR (THE REGULATING) THE PRIVIE COUNCELL AND FOR
TAKING AWAY THE COURT COMMONLY CALLED THE STAR CHAMBER; STAT. (1661) 13
CAR.  2, STAT. 1, C. 1(TREASON); THE BILL OF RIGHTS (1688)(1 WILL.  &
MAR. SESS. 2, C. 2.); ALL COLLECTED IN "HALSBURY'S STAT. OF ENG."
(1929) VOL. 3. 

FN11  "IN ALL THIRD DEGREE CASES, IT IS REMARKABLE TO NOTE THAT THE
CONFESSIONS WERE TAKEN FROM 'MEN OF HUMBLE STATION IN LIFE AND OF A
COMPARATIVELY LOW DEGREE OF INTELLIGENCE, AND MOST OF THEM APPARENTLY
TOO POOR TO EMPLOY COUNSEL AND TOO FRIENDLESS TO HAVE ANY ONE ADVISE
THEM OF THEIR RIGHTS.'"  FILAMOR, "THIRD DEGREE CONFESSION," 13 BOMBAY
L.J., 339, 346.  "THAT THE THIRD DEGREE IS ESPECIALLY USED AGAINST THE
POOR AND UNINFLUENTIAL IS ASSERTED BY SEVERAL WRITERS, AND CONFIRMED BY
OFFICIAL INFORMANTS AND JUDICIAL DECISIONS."  IV NATIONAL COMMISSION ON
LAW OBSERVANCE AND ENFORCEMENT, REPORTS, (1931) CH. 3, P. 159.  CF.
MORRISON V. CALIFORNIA, 291 U.S. 82, 95. 

FN12  297 U.S. 278, 286. 

FN13  SEE ZIANG SUNG WAN V. UNITED STATES, 266 U.S. 1, 16.  THE
DISSENTING JUDGE BELOW NOTED, 136 FLA. 568, 576; 187 SO. 156, 159,
THAT, IN A PRIOR APPEAL OF THIS SAME CASE, THE SUPREME COURT OF FLORIDA
HAD SAID:  "EVEN IF THE JURY TOTALLY DISBELIEVED THE TESTIMONY OF THE
PETITIONERS, THE TESTIMONY OF SHERIFF WALTER CLARK, AND ONE OR TWO OF
THE OTHER WITNESSES INTRODUCED BY THE STATE, WAS SUFFICIENT TO SHOW
THAT THESE CONFESSIONS WERE ONLY MADE AFTER SUCH CONSTANTLY REPEATED
AND PERSISTENT QUESTIONING AND CROSS-QUESTIONING ON THE PART OF THE
OFFICERS AND ONE J. T. WILLIAMS, A CONVICT GUARD, AT FREQUENT INTERVALS
WHILE THEY WERE IN JAIL, OVER A PERIOD OF ABOUT A WEEK, AND CULMINATING
IN AN ALL-NIGHT QUESTIONING OF THE PETITIONERS SEPARATELY IN
SUCCESSION, THROUGHOUT PRACTICALLY ALL OF SATURDAY NIGHT, UNTIL
CONFESSIONS HAD BEEN OBTAINED FROM ALL OF THEM, WHEN THEY WERE ALL
BROUGHT INTO A ROOM IN THE JAILER'S QUARTERS AT 6:30 ON SUNDAY MORNING
AND MADE THEIR CONFESSIONS BEFORE THE STATE ATTORNEY, THE OFFICERS,
SAID J. T. WILLIAMS, AND SEVERAL DISINTERESTED OUTSIDERS, THE
CONFESSIONS, IN THE FORM OF QUESTIONS AND ANSWERS, BEING TAKEN DOWN BY
THE COURT REPORTER, AND THEN TYPEWRITTEN. 

"UNDER THE PRINCIPLES LAID DOWN IN NICKELS V. STATE, 90 FLA. 659, 106
SO. 479; DAVIS V. STATE, 90 FLA. 317, 105 SO. 843; DEITERLE V. STATE,
98 FLA. 739, 124 SO. 47; MATHIEU V. STATE, 101 FLA. 94, 133 SO. 550,
THESE CONFESSIONS WERE NOT LEGALLY OBTAINED."  123 FLA. 734, 741; 167
SO. 697, 700.    FN14  CF. THE STATEMENT OF THE SUPREME COURT OF
ARKANSAS, BELL V. STATE, 180 ARK. 79, 89; 20 S.W.2D 618, 622:  "THIS
NEGRO BOY WAS TAKEN, ON THE DAY AFTER THE DISCOVERY OF THE HOMICIDE
WHILE HE WAS AT HIS USUAL WORK, AND PLACED IN JAIL.  HE HAD HEARD THEM
WHIPPING SWAIN IN THE JAIL; HE WAS TAKEN FROM THE JAIL TO THE
PENITENTIARY AT LITTLE ROCK AND TURNED OVER TO THE WARDEN, CAPTAIN
TODHUNTER, WHO WAS REQUESTED BY THE SHERIFF TO QUESTION HIM.  THIS
TODHUNTER PROCEEDED TO DO, DAY AFTER DAY, AN HOUR AT A TIME.  THERE
BELL WAS, AN IGNORANT COUNTRY BOY SURROUNDED BY ALL OF THOSE THINGS
THAT STRIKE TERROR TO THE NEGRO HEART; ...  "  SEE MUNSTERBERG, ON THE
WITNESS STAND, (1927) 137 ET SEQ. 

FN15  THE POLICE PRACTICES HERE EXAMINED ARE TO SOME DEGREE
WIDESPREAD THROUGHOUT OUR COUNTRY.  SEE REPORT OF COMM. ON LAWLESS
ENFORCEMENT OF THE LAW (AMER.  BAR ASS'N) 1 AMER.  JOURN.  OF POL. 
SCI., 575; NOTE 43 H.L.R. 617; IV NATIONAL COMMISSION ON LAW OBSERVANCE
AND ENFORCEMENT, SUPRA, CH. 2, SEC. 4.  YET OUR NATIONAL RECORD FOR
CRIME DETECTION AND CRIMINAL LAW ENFORCEMENT COMPARES POORLY WITH THAT
OF GREAT BRITAIN WHERE SECRET INTERROGATION OF AN ACCUSED OR SUSPECT IS
NOT TOLERATED.  SEE, REPORT OF COMM. ON LAWLESS ENFORCEMENT OF THE LAW,
SUPRA, 588; 43 H.L.R., SUPRA, 618.  IT HAS EVEN BEEN SUGGESTED THAT THE
USE OF THE "THIRD DEGREE" HAS LOWERED THE ESTEEM IN WHICH
ADMINISTRATION OF JUSTICE IS HELD BY THE PUBLIC AND HAS ENGENDERED AN
ATTITUDE OF HOSTILITY TO AND UNWILLINGNESS TO COOPERATE WITH THE POLICE
ON THE PART OF MANY PEOPLE.  SEE, IV NATIONAL COMMISSION, ETC., SUPRA,
P. 190.  AND, AFTER SCHOLARLY INVESTIGATION, THE CONCLUSION HAS BEEN
REACHED "THAT SUCH METHODS, ASIDE FROM THEIR BRUTALITY, TEND IN THE
LONG RUN TO DEFEAT THEIR OWN PURPOSE; THEY ENCOURAGE INEFFICIENCY ON
THE PART OF THE POLICE."  GLUECK, CRIME AND JUSTICE, (1936) 76.  SEE IV
NATIONAL COMMISSION, ETC., SUPRA, 5; CF. 4 WIGMORE, EVIDENCE, (2D ED.) 
SEC. 2251.  THE REQUIREMENT THAT AN ACCUSED BE BROUGHT PROMPTLY BEFORE
A MAGISTRATE HAS BEEN SOUGHT BY SOME AS A SOLUTION TO THE PROBLEM OF
FOSTERING LAW ENFORCEMENT WITHOUT SACRIFICING THE LIBERTIES AND
PROCEDURAL RIGHTS OF THE INDIVIDUAL.  2 WIG., SUPRA, SEC. 851, IV
NATIONAL COMMISSION, ETC., SUPRA, 5. 

MR. JUSTICE MURPHY TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















F.H.A. V. BURR, 309 U.S. 242 


NO. 354.  ARGUED JANUARY 31, FEBRUARY 1, 1940.  - DECIDED FEBRUARY 12,
1940.  - 289 MICH. 91 - 286 N.W. 169, AFFIRMED. 


1.  UNDER THE NATIONAL HOUSING ACT, AS AMENDED, WHICH PROVIDES THAT
THE ADMINISTRATOR SHALL, IN CARRYING OUT THE PROVISIONS OF CERTAIN OF
ITS TITLES, "BE AUTHORIZED, IN HIS OFFICIAL CAPACITY, TO SUE AND BE
SUED IN ANY COURT OF COMPETENT JURISDICTION, STATE OR FEDERAL," THE
FEDERAL HOUSING ADMINISTRATION IS SUBJECT TO BE GARNISHED, UNDER STATE
LAW, FOR MONEYS DUE TO AN EMPLOYEE; BUT ONLY THOSE FUNDS WHICH HAVE
BEEN PAID OVER TO THE ADMINISTRATION IN ACCORDANCE WITH SEC. 1 OF THE
ACT AND WHICH ARE IN ITS POSSESSION, SEVERED FROM TREASURY FUNDS AND
TREASURY CONTROL, ARE SUBJECT TO EXECUTION.  PP. 249-250. 

2.  WAIVERS BY CONGRESS OF GOVERNMENTAL IMMUNITY FROM SUIT IN THE
CASE OF SUCH FEDERAL INSTRUMENTALITIES SHOULD BE CONSTRUED LIBERALLY. 
P. 245. 

3.  THE WORDS "SUE AND BE SUED" IN THEIR NORMAL CONNOTATION EMBRACE
ALL CIVIL PROCESS INCIDENT TO THE COMMENCEMENT OR CONTINUANCE OF LEGAL
PROCEEDINGS.  GARNISHMENT AND ATTACHMENT COMMONLY ARE PART AND PARCEL
OF THE PROCESS, PROVIDED BY STATUTE, FOR THE COLLECTION OF DEBTS.  P.
245. 

FEDERAL HOUSING ADMINISTRATION, REGION NO. 4, V. BURR, DOING BUSINESS
AS SECRETARIAL SERVICE BUREAU. 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN. 

CERTIORARI, 308 U.S. 541, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE FEDERAL HOUSING ADMINISTRATION IN A GARNISHMENT
PROCEEDING. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED HERE IS WHETHER THE FEDERAL HOUSING
ADMINISTRATION IS SUBJECT TO GARNISHMENT FOR MONEYS DUE TO AN
EMPLOYEE.  THE SUPREME COURT OF THE STATE OF MICHIGAN HELD THAT IT
WAS.  289 MICH. 91; 286 N.W. 169.  WE GRANTED CERTIORARI IN VIEW OF THE
IMPORTANCE OF THE PROBLEM AND THE CONFUSED STATE OF THE AUTHORITIES ON
THE RIGHT TO GARNISHEE RECENTLY CREATED AGENCIES OR CORPORATIONS OF THE
FEDERAL GOVERNMENT.  FN1 

IN 1930 RESPONDENT OBTAINED FINAL JUDGMENT IN MICHIGAN AGAINST ONE
HEFFNER AND ONE BROOKS.  IN 1938 PETITIONER WAS SERVED WITH A WRIT OF
GARNISHMENT ISSUED BY THE MICHIGAN COURT.  FN2 PETITIONER APPEARED AND
FILED AN ANSWER AND DISCLOSURE STATING THAT BROOKS WAS NO LONGER
CONNECTED WITH IT DUE TO HIS DEATH SUBSEQUENT TO SERVICE OF THE WRIT
BUT ADMITTING THAT IT OWED BROOKS AT THE TIME OF HIS DEATH $71.11.  ITS
ANSWER FURTHER ASSERTED THAT IT WAS "AN AGENCY OF THE UNITED STATES
GOVERNMENT AND IS, THEREFORE, NOT SUBJECT TO GARNISHEE PROCEEDINGS." 
ON MOTION OF RESPONDENT JUDGMENT WAS ENTERED AGAINST PETITIONER FOR THE
AMOUNT OF ITS INDEBTEDNESS TO BROOKS AND EXECUTION WAS ALLOWED
THEREUNDER.  ON APPEAL TO THE SUPREME COURT OF MICHIGAN THAT JUDGMENT
WAS AFFIRMED. 

THE PROBLEM HERE IS UNLIKE THAT IN BUCHANAN V. ALEXANDER, 4 HOW.  20,
WHERE CREDITORS OF SEAMEN OF THE FRIGATE CONSTITUTION WERE NOT ALLOWED
TO ATTACH THEIR WAGES IN THE HANDS OF A DISBURSING OFFICER OF THE
FEDERAL GOVERNMENT.  THAT RULING WAS DERIVED FROM THE PRINCIPLE THAT
THE UNITED STATES CANNOT BE SUED WITHOUT ITS CONSENT.  THERE NO CONSENT
WHATSOEVER TO "SUE AND BE SUED" HAD BEEN GIVEN.  HERE THE SITUATION IS
DIFFERENT.  SEC. 1 OF TITLE I OF THE NATIONAL HOUSING ACT (ACT OF JUNE
27, 1934, C. 847; 48 STAT. 1246) AUTHORIZED THE PRESIDENT "TO CREATE A
FEDERAL HOUSING ADMINISTRATION, ALL OF THE POWER OF WHICH SHALL BE
EXERCISED BY A FEDERAL HOUSING ADMINISTRATOR."  THAT SECTION WAS
AMENDED IN 1935(ACT OF AUGUST 23, 1935, C. 614; 49 STAT. 684, 722) BY
ADDING THERETO THE PROVISION THAT "THE ADMINISTRATOR SHALL, IN CARRYING
OUT THE PROVISIONS OF THIS TITLE AND TITLES II AND III, BE AUTHORIZED,
IN HIS OFFICIAL CAPACITY, TO SUE AND BE SUED IN ANY COURT OF COMPETENT
JURISDICTION, STATE OR FEDERAL." 

SINCE CONSENT TO "SUE AND BE SUED" HAS BEEN GIVEN BY CONGRESS, THE
PROBLEM HERE MERELY INVOLVES A DETERMINATION OF WHETHER OR NOT
GARNISHMENT COMES WITHIN THE SCOPE OF THAT AUTHORIZATION.  NO QUESTION
AS TO THE POWER OF CONGRESS TO WAIVE THE GOVERNMENTAL IMMUNITY IS
PRESENT.  FOR THERE CAN BE NO DOUBT THAT CONGRESS HAS FULL POWER TO
ENDOW THE FEDERAL HOUSING ADMINISTRATION WITH THE GOVERNMENT'S IMMUNITY
FROM SUIT OR TO DETERMINE THE EXTENT TO WHICH IT MAY BE SUBJECTED TO
THE JUDICIAL PROCESS.  FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229;
KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP., 306 U.S. 381. 

AS INDICATED IN KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP.,
SUPRA, WE START FROM THE PREMISE THAT SUCH WAIVERS BY CONGRESS OF
GOVERNMENTAL IMMUNITY IN CASE OF SUCH FEDERAL INSTRUMENTALITIES SHOULD
BE LIBERALLY CONSTRUED.  THIS POLICY IS IN LINE WITH THE CURRENT
DISFAVOR OF THE DOCTRINE OF GOVERNMENTAL IMMUNITY FROM SUIT, AS
EVIDENCED BY THE INCREASING TENDENCY OF CONGRESS TO WAIVE THE IMMUNITY
WHERE FEDERAL GOVERNMENTAL CORPORATIONS ARE CONCERNED.  KEIFER & KEIFER
V. RECONSTRUCTION FINANCE CORP., SUPRA.  HENCE, WHEN CONGRESS
ESTABLISHES SUCH AN AGENCY, AUTHORIZES IT TO ENGAGE IN COMMERCIAL AND
BUSINESS TRANSACTIONS WITH THE PUBLIC, AND PERMITS IT TO "SUE AND BE
SUED," IT CANNOT BE LIGHTLY ASSUMED THAT RESTRICTIONS ON THAT AUTHORITY
ARE TO BE IMPLIED.  RATHER IF THE GENERAL AUTHORITY TO "SUE AND BE
SUED" IS TO BE DELIMITED BY IMPLIED EXCEPTIONS, IT MUST BE CLEARLY
SHOWN THAT CERTAIN TYPES OF SUITS ARE NOT CONSISTENT WITH THE STATUTORY
OR CONSTITUTIONAL SCHEME,  FN3  THAT AN IMPLIED RESTRICTION OF THE
GENERAL AUTHORITY IS NECESSARY TO AVOID GRAVE INTERFERENCE WITH THE
PERFORMANCE OF A GOVERNMENTAL FUNCTION, OR THAT FOR OTHER REASONS IT
WAS PLAINLY THE PURPOSE OF CONGRESS TO USE THE "SUE AND BE SUED" CLAUSE
IN A NARROW SENSE.  IN THE ABSENCE OF SUCH SHOWING, IT MUST BE PRESUMED
THAT WHEN CONGRESS LAUNCHED A GOVERNMENTAL AGENCY INTO THE COMMERCIAL
WORLD AND ENDOWED IT WITH AUTHORITY TO "SUE OR BE SUED," THAT AGENCY IS
NOT LESS AMENABLE TO JUDICIAL PROCESS THAN A PRIVATE ENTERPRISE UNDER
LIKE CIRCUMSTANCES WOULD BE. 

CLEARLY THE WORDS "SUE AND BE SUED" IN THEIR NORMAL CONNOTATION
EMBRACE ALL CIVIL PROCESS INCIDENT TO THE COMMENCEMENT OR CONTINUANCE
OF LEGAL PROCEEDINGS.  GARNISHMENT AND ATTACHMENT COMMONLY ARE PART AND
PARCEL OF THE PROCESS, PROVIDED BY STATUTE, FOR THE COLLECTION OF
DEBTS.  FN4  IN MICHIGAN A WRIT OF GARNISHMENT IS A CIVIL PROCESS AT
LAW, IN THE NATURE OF AN EQUITABLE ATTACHMENT.  SEE POSSELIUS V. FIRST
NATIONAL BANK, 264 MICH. 687; 251 N.W. 429.  BUT HOWEVER IT MAY BE
DENOMINATED, WHETHER LEGAL OR EQUITABLE,  FN5  AND WHENEVER IT MAY BE
AVAILABLE, WHETHER PRIOR TO  FN6  OR AFTER FINAL JUDGMENT,  FN7
GARNISHMENT IS A WELL-KNOWN REMEDY AVAILABLE TO SUITORS.  TO SAY THAT
CONGRESS DID NOT INTEND TO INCLUDE SUCH CIVIL PROCESS IN THE WORDS "SUE
AND BE SUED" WOULD IN GENERAL DEPRIVE SUITS OF SOME OF THEIR EFFICACY. 
HENCE, IN ABSENCE OF SPECIAL CIRCUMSTANCES, WE ASSUME THAT WHEN
CONGRESS AUTHORIZED FEDERAL INSTRUMENTALITIES OF THE TYPE HERE INVOLVED
TO "SUE AND BE SUED" IT USED THOSE WORDS IN THEIR USUAL AND ORDINARY
SENSE.  FN8  STATE DECISIONS BARRING GARNISHMENT AGAINST A PUBLIC BODY
THOUGH IT MAY "SUE AND BE SUED"  FN9  ARE NOT PERSUASIVE HERE AS THEY
REFLECT PURELY LOCAL POLICIES CONCERNING MUNICIPALITIES, COUNTIES AND
THE LIKE, AND INVOLVE CONSIDERATIONS NOT GERMANE TO THE PROBLEM OF
AMENABILITY TO SUIT OF THE MODERN FEDERAL GOVERNMENTAL CORPORATION. 

OUR CONCLUSION IS STRENGTHENED BY THE LEGISLATIVE HISTORY OF THE MANY
RECENTLY CREATED GOVERNMENTAL AGENCIES OR CORPORATIONS.  IT SHOWS THAT
IN BUT FEW INSTANCES WAS A PROVISO ADDED TO THE "SUE AND BE SUED"
CLAUSE PROHIBITING GARNISHMENT OR ATTACHMENT.  FN10  THE FACT THAT IN
THE RUN OF RECENT STATUTES NO SUCH EXCEPTIONS WERE MADE AND THAT IN
ONLY A FEW OF THEM WERE ANY SPECIAL PROHIBITIONS INCLUDED ADDS
CORROBORATIVE WEIGHT TO OUR CONCLUSION THAT SUCH CIVIL PROCESS WAS
INTENDED. 

UP TO THIS POINT, HOWEVER, PETITIONER DOES NOT RAISE ITS MAJOR
OBJECTIONS.  RATHER IT GROUNDS ITS CLAIM TO IMMUNITY FROM GARNISHMENT
LARGELY ON STATUTORY CONSTRUCTION AND ON MATTERS OF POLICY.  AS TO THE
FORMER, IT RELIES HEAVILY ON THE FACT THAT THE AUTHORITY TO "SUE AND BE
SUED" EXCLUDES CASES UNRELATED TO THE ADMINISTRATOR'S OWN DUTIES OR
LIABILITIES SINCE THE STATUTE PROVIDES THAT THE "ADMINISTRATOR SHALL,
IN CARRYING OUT THE PROVISIONS OF THIS TITLE (TITLE I) AND TITLES II
AND III" BE AUTHORIZED TO "SUE AND BE SUED."  PETITIONER THEREFORE
CONTENDS THAT CONGRESS HAS CONSENTED TO A SUIT AGAINST THE
ADMINISTRATOR ONLY WHERE THE PLAINTIFF IS A PARTY TO A TRANSACTION WITH
HIM WHICH IN TURN IS RELATED TO "CARRYING OUT" THE PROVISIONS OF THOSE
TITLES.  TITLE I CONTAINS THE ONLY PROVISIONS MATERIAL HERE.  SEC. 1
GAVE THE ADMINISTRATOR, INTER ALIA, AUTHORITY TO APPOINT SUCH OFFICERS
AND EMPLOYEES "AS HE MAY FIND NECESSARY"; TO "PRESCRIBE THEIR
AUTHORITIES, DUTIES, RESPONSIBILITIES, AND TENURE AND FIX THEIR
COMPENSATION, WITHOUT REGARD TO THE PROVISIONS OF OTHER LAWS APPLICABLE
TO THE EMPLOYMENT OR COMPENSATION OF OFFICERS OR EMPLOYEES OF THE
UNITED STATES"; AND TO "MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES
FOR PERSONAL SERVICES AND RENT AT THE SEAT OF GOVERNMENT AND ELSEWHERE,
FOR LAW BOOKS AND BOOKS OF REFERENCE, AND FOR PAPER, PRINTING, AND
BINDING) AS ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS TITLE AND
TITLES II AND III, WITHOUT REGARD TO ANY OTHER PROVISIONS OF LAW
GOVERNING THE EXPENDITURE OF PUBLIC FUNDS."  SEC. 2 GAVE LIMITED
AUTHORITY TO THE ADMINISTRATOR TO INSURE FINANCIAL INSTITUTIONS; SEC.
3, AUTHORITY TO MAKE LOANS TO SUCH INSTITUTIONS.  SINCE THE
ADMINISTRATOR COULD BE SUED, IN HIS OFFICIAL CAPACITY, IN "CARRYING
OUT" THE PROVISIONS OF TITLE I, IT WOULD SEEM CLEAR THAT SUCH SUITS AS
WERE BASED ON EMPLOYMENT CONTRACTS MADE PURSUANT TO THE AUTHORITY
GRANTED BY SEC. 1 WERE PERMITTED.  ACCORDINGLY, IT SEEMS CLEAR THAT
BROOKS, WHOSE CLAIM  FN11  WAS GARNISHEED BY RESPONDENT, COULD HAVE
SUED ON THAT CLAIM AND OBTAINED THE BENEFIT OF THAT CIVIL PROCESS WHICH
WAS AVAILABLE IN THE APPROPRIATE STATE OR FEDERAL PROCEEDING.  FEDERAL
LAND BANK V. PRIDDY, SUPRA.  TO ALLOW RESPONDENT TO REACH THAT CLAIM
THROUGH A WRIT OF GARNISHMENT IS THEREFORE NOT TO ENLARGE PETITIONER'S
LIABILITY NOR TO ADD ONE IOTA TO THE SCOPE OF SEC. 1.  FOR THE END
RESULT IS SIMPLY TO ALLOW A SUIT FOR THE COLLECTION OF A CLAIM ON WHICH
CONGRESS EXPRESSLY MADE PETITIONER SUABLE.  THE MERE CHANGE IN THE
PAYEE DOES NOT MAKE THE SUIT UNRELATED TO THE DUTIES AND LIABILITIES OF
THE ADMINISTRATOR UNDER SEC. 1. 

BUT PETITIONER STRONGLY URGES CONSIDERATIONS OF POLICY AGAINST THIS
CONCLUSION AND STRESSES THE HEAVY BURDENS WHICH WOULD BE IMPOSED ON
SUCH GOVERNMENTAL INSTRUMENTALITIES IF GARNISHMENT WERE PERMITTED.  IT
ASSERTS THAT THE TASK OF PREPARING ANSWERS, DISCLOSURES AND RETURNS TO
NUMEROUS GARNISHMENT PROCESSES IN THE COURTS OF EACH OF THE STATES
WOULD APPRECIABLY IMPEDE THE FEDERAL FUNCTIONS OF SUCH AN AGENCY.  IT
POINTS TO VARIOUS STATE LEGISLATION REGULATING AND RESTRICTING
GARNISHMENT AGAINST PUBLIC BODIES AND CONCLUDES THAT IF IMMUNITY OF
PUBLIC BODIES FROM GARNISHMENT IS TO BE ABROGATED, IT SHOULD BE DONE BY
LEGISLATION SO THAT THE REMEDY COULD BE APPROPRIATELY MOLDED TO FIT THE
NEEDS OF GOVERNMENT. 

IN OUR VIEW, HOWEVER, THE BRIDGE WAS CROSSED WHEN CONGRESS ABROGATED
THE IMMUNITY BY THIS "SUE AND BE SUED" CLAUSE.  AND NO SUCH GRAVE
INTERFERENCE WITH THE FEDERAL FUNCTION HAS BEEN SHOWN TO LEAD US TO
IMPLY THAT CONGRESS DID NOT INTEND THE FULL CONSEQUENCES OF WHAT IT
SAID.  HENCE, CONSIDERATIONS OF CONVENIENCE, COST AND EFFICIENCY  FN12
WHICH HAVE BEEN URGED HERE ARE FOR CONGRESS WHICH, AS WE HAVE SAID, HAS
FULL AUTHORITY TO MAKE SUCH RESTRICTIONS ON THE "SUE AND BE SUED"
CLAUSE AS SEEM TO IT APPROPRIATE OR NECESSARY. 

THERE IS SOME POINT MADE OF THE FACT THAT SUIT WAS BROUGHT AGAINST
THE FEDERAL HOUSING ADMINISTRATION RATHER THAN AGAINST THE
ADMINISTRATOR.  BUT WHEN THE STATUTE AUTHORIZES SUITS BY OR AGAINST THE
ADMINISTRATOR "IN HIS OFFICIAL CAPACITY" WE CONCLUDE THAT THAT PERMITS
ACTIONS BY OR AGAINST THE FEDERAL HOUSING ADMINISTRATION.  THE
ADMINISTRATOR ACTS FOR AND ON BEHALF OF THE FEDERAL HOUSING
ADMINISTRATION, SINCE BY EXPRESS TERMS OF THE ACT ALL OF THE POWERS OF
THE LATTER "SHALL BE EXERCISED" BY HIM.  HENCE ACTION BY HIM IN THE
NAME OF THE FEDERAL HOUSING ADMINISTRATION WOULD BE ACTION IN HIS
OFFICIAL CAPACITY. 

PETITIONER CLAIMS THAT EXECUTION SHOULD NOT HAVE BEEN ALLOWED UNDER
THE JUDGMENT.  THE ACT PERMITS THE ADMINISTRATOR "TO SUE AND BE SUED IN
ANY COURT OF COMPETENT JURISDICTION, STATE OR FEDERAL."  WHETHER BY
MICHIGAN LAW EXECUTION UNDER SUCH A JUDGMENT MAY BE HAD IS, LIKE THE
AVAILABILITY OF GARNISHMENT, FEDERAL LAND BANK V. PRIDDY, SUPRA, A
STATE QUESTION.  AND SO FAR AS THE FEDERAL STATUTE IS CONCERNED,
EXECUTION IS NOT BARRED, FOR IT WOULD SEEM TO BE PART OF THE CIVIL
PROCESS EMBRACED WITHIN THE "SUE AND BE SUED" CLAUSE.  THAT DOES NOT,
OF COURSE, MEAN THAT ANY FUNDS OR PROPERTY OF THE UNITED STATES CAN BE
HELD RESPONSIBLE FOR THIS JUDGMENT.  CLAIMS AGAINST A CORPORATION ARE
NORMALLY COLLECTIBLE ONLY FROM CORPORATE ASSETS.  THAT IS TRUE HERE. 
CONGRESS HAS SPECIFICALLY DIRECTED THAT ALL SUCH CLAIMS AGAINST THE
FEDERAL HOUSING ADMINISTRATION OF THE TYPE HERE INVOLVED "SHALL BE PAID
OUT OF FUNDS MADE AVAILABLE BY THIS ACT."  SEC. 1.  HENCE THOSE FUNDS,
AND ONLY THOSE, ARE SUBJECT TO EXECUTION.  THE RESULT IS THAT ONLY
THOSE FUNDS WHICH HAVE BEEN PAID OVER TO THE FEDERAL HOUSING
ADMINISTRATION IN ACCORDANCE WITH SEC. 1 AND WHICH ARE IN ITS
POSSESSION, SEVERED FROM TREASURY FUNDS AND TREASURY CONTROL, ARE
SUBJECT TO EXECUTION.  SINCE NO CONSENT TO REACH GOVERNMENT FUNDS HAS
BEEN GIVEN, EXECUTION THEREON WOULD RUN COUNTER TO BUCHANAN V.
ALEXANDER, SUPRA.  TO CONCLUDE OTHERWISE WOULD BE TO ALLOW PROCEEDINGS
AGAINST THE UNITED STATES WHERE IT HAD NOT WAIVED ITS IMMUNITY.  THIS
RESTRICTION ON EXECUTION MAY AS A PRACTICAL MATTER DEPRIVE IT OF
UTILITY, SINCE FUNDS OF PETITIONER APPEAR TO BE DEPOSITED WITH THE
TREASURER OF THE UNITED STATES AND PAYMENTS AND OTHER OBLIGATIONS ARE
MADE THROUGH THE CHIEF DISBURSING OFFICER OF THE TREASURY.  FN13  BUT
THAT IS AN INHERENT LIMITATION, UNDER THIS STATUTORY SCHEME, ON THE
LEGAL REMEDIES WHICH CONGRESS HAS PROVIDED.  AND SINCE RESPONDENT
OBTAINS ITS RIGHT TO SUE FROM CONGRESS, IT NECESSARILY MUST TAKE IT
SUBJECT TO SUCH RESTRICTIONS AS HAVE BEEN IMPOSED.  THE FACT THAT
EXECUTION MAY PROVE FUTILE IS ONE OF THE NOTORIOUS INCIDENTS OF
LITIGATION, AS IS THE FACT THAT EXECUTION IS NOT AN INDISPENSABLE
ADJUNCT OF THE JUDICIAL PROCESS.  FN14  AFFIRMED.    FN1  GARNISHMENT
OF WAGES DUE AN EMPLOYEE OF THE UNITED STATES SHIPPING BOARD MERCHANT
FLEET CORPORATION WAS DISALLOWED IN MCCARTHY V. UNITED STATES SHIPPING
BOARD MERCHANT FLEET CORP., 60 APP. D.C. 311; 53 F.2D 923.  CONTRA:
HAINES V. LONE STAR SHIPBUILDING CO., 268 PA. 92; 110 A. 788.  AS TO
THE HOME OWNERS' LOAN CORPORATION, A SIMILAR CONFLICT OF DECISIONS HAS
ARISEN.  THAT IT IS NOT SUBJECT TO GARNISHMENT SEE HOME OWNERS' LOAN
CORP. V. HARDIE & CAUDLE, 171 TENN. 43; 100 S.W.2D 238.  AND SEE
MANUFACTURER'S TRUST CO. V. ROSS, 252 APP. DIV. 292; 299 N.Y.S. 398. 
THAT IT IS SUBJECT TO GARNISHMENT SEE CENTRAL MARKET, INC. V. KING, 132
NEB. 380; 272 N.W. 244; GILL V. REESE, 53 OH. APP. 134; 4 N.E.2D 273;
MCAVOY V. WEBER, 198 WASH. 370; 88 P.2D 448. 

FN2  MICH. STAT. ANN. (1938) SEC. 27, 1855 ET SEQ. 

FN3  CF. PORTO RICO V. ROSALY, 227 U.S. 270. 

FN4  SEE SHINN, ATTACHMENT & GARNISHMENT, CHS.  I, XXIII.  AS TO
GARNISHMENT OF WAGE CLAIMS, SEE STURGES & COOPER, CREDIT ADMINISTRATION
AND WAGE EARNER BANKRUPTCIES, 42 YALE L. JOURN.  487, 503 ET SEQ. 

FN5  CF. WILLIAMS V. T.R. SWEAT & CO., 103 FLA. 461; 137 SO. 698;
CAMPAGNA V. AUTOMATIC ELECTRIC CO., 293 ILL. APP. 437; 12 N.E.2D 695,
WITH COMMERCIAL INVESTMENT TRUST, INC. V. WILLIAM FRANKFURTH HARDWARE
CO., 179 WIS. 21; 190 N.W. 1004; DIAMOND CORK CO. V. MAINE JOBBING CO.,
116 ME. 67; 100 A. 7. 

FN6  COL. CODE CIV. PROC., CH. 7, SEC. 129; DEERING'S CALIF. CODE
CIV. PROC., SEC. 543. 

FN7  N.Y. CIV. PRAC.  ACT, SEC. 684; PURDON'S PENN.  STAT.  SEC.
2994.  IN MICHIGAN NO GARNISHMENT FOR MONEY OWING THE PRINCIPAL
DEFENDANT ON ACCOUNT OF LABOR PERFORMED BY HIM SHALL BE COMMENCED UNTIL
AFTER JUDGMENT HAS BEEN OBTAINED AGAINST SUCH PRINCIPAL DEFENDANT. 
MICH. STAT. ANN., SEC. 27.1855. 

FN8  IN WESTON V. CITY COUNCIL OF CHARLESTON, 2 PET. 449, 464, CHIEF
JUSTICE MARSHALL IN DEFINING THE WORD "SUIT," AS USED IN THE 25TH
REVIEW ON ENUMERATED CONDITIONS A "FINAL JUDGMENT OR DECREE IN ANY SUIT
IN THE HIGHEST COURT OF LAW OR EQUITY OF A STATE IN WHICH A DECISION IN
THE SUIT COULD BE HAD" (43 STAT. 937), SAID: 

"THE TERM IS CERTAINLY A VERY COMPREHENSIVE ONE, AND IS UNDERSTOOD TO
APPLY TO ANY PROCEEDING IN A COURT OF JUSTICE, BY WHICH AN INDIVIDUAL
PURSUES THAT REMEDY IN A COURT OF JUSTICE, WHICH THE LAW AFFORDS HIM. 
THE MODES OF PROCEEDING MAY BE VARIOUS, BUT IF A RIGHT IS LITIGATED
BETWEEN PARTIES IN A COURT OF JUSTICE, THE PROCEEDING BY WHICH THE
DECISION OF THE COURT IS SOUGHT, IS A SUIT." 

FN9  CENTRAL OF GEORGIA RY. CO. V. ANDALUSIA, 218 ALA. 511; 119 SO.
236; DUVALL COUNTY V. CHARLESTON LUMBER CO., 45 FLA. 256, 265; 33 SO.
531; CHICAGO V. HASLEY, 25 ILL. 595. 

FN10  AS RESPECTS THE FORTY GOVERNMENT CORPORATIONS LISTED IN KEIFER
& KEIFER V. RECONSTRUCTION FINANCE CORP., SUPRA, PP. 390-391, WHERE
CONGRESS INCLUDED THE AUTHORITY TO "SUE AND BE SUED," EXPRESS
PROHIBITION AGAINST ATTACHMENT AND GARNISHMENT WAS PROVIDED IN ONLY TWO
INSTANCES.  THEY ARE THE FEDERAL CROP INSURANCE CORPORATION (52 STAT.
72, 73) AND THE FARMERS' HOME CORPORATION (50 STAT. 527). 

FN11  WHILE THE RECORD SHOWS THAT BROOKS HAD BEEN "CONNECTED" WITH
THE PETITIONER IT DOES NOT SHOW THE NATURE OF THE DEBT DUE HIM.  THE
BRIEF WHICH PETITIONER FILED BELOW, HOWEVER, RECITED THAT BROOKS WAS AN
EMPLOYEE; AND NO DEFENSE WAS INTERPOSED THAT THE CLAIM DID NOT ARISE
UNDER TITLE I OF THE ACT. 

FN12  CF. FORTAS, WAGE ASSIGNMENTS IN CHICAGO, 42 YALE L. JOURN. 
526; NUGENT, HAMM, JONES, WAGE EXECUTIONS FOR DEBT, BULL.  NO. 622,
BUREAU OF LAB.  STATISTICS, U.S. DEPT. OF LABOR. 

FN13  FIFTH ANNUAL REPORT, FEDERAL HOUSING ADMINISTRATION (1938), P.
157. 

FN14  SEE NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S. 249,
263; COMMONWEALTH FINANCE CORP. V. LANDIS, 261 F. 440, 443-444.  CF.
PAUCHOGUE LAND CORP. V. LONG ISLAND STATE PARK COMM'N, 243 N.Y. 15; 152
N.E. 451; NEW SOUTH WALES V. BARDOLPH, 52 COMMONWEALTH L. REP. 455. 

MR. JUSTICE MURPHY DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :















U.S. V. NATIONAL SURETY CORP., 309 U.S. 165 


NO. 236.  ARGUED JANUARY 9, 10, 1940.  - DECIDED FEBRUARY 5, 1940.  -
103 F.2D 450, AFFIRMED. 


A PRIVATE USER OF THE MAILS MAY NOT, WITHOUT THE EXPRESS OR IMPLIED
CONSENT OF THE UNITED STATES, BRING SUIT ON THE BOND OF A POSTMASTER
(IN WHICH THE UNITED STATES IS THE SOLE OBLIGEE) FOR CONSEQUENTIAL
DAMAGES RESULTING FROM MISDELIVERY OF MAIL.  P. 169. 

UNITED STATES FOR THE USE AND BENEFIT OF MIDLAND LOAN FINANCE CO. V.
NATIONAL SURETY CORP. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 308 U.S. 534, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT, 23 F.SUPP.  411, DISMISSING THE COMPLAINT IN AN
ACTION ON A POSTMASTER'S BOND. 

IF A POSTMASTER STANDS IN A RELATIONSHIP TOWARD PRIVATE MAIL-USERS
AKIN TO THAT OF CLERKS OF THE DISTRICT COURTS TOWARDS PRIVATE SUITORS,
THE RIGHT TO RECOVER IS ESTABLISHED BY HOWARD V. UNITED STATES, 184
U.S. 676. 

THE LANGUAGE OF THE BOND STATUTE, 39 U.S.C. SEC. 34, CONFERS BENEFITS
UPON USERS OF THE MAILS, AS WELL AS UPON THE GOVERNMENT. 

THAT THE UNITED STATES WAS THE SOLE OBLIGEE IS NOT CONTROLLING. 
HOWARD V. UNITED STATES, 184 U.S. 676, 687; UNITED STATES V. GLOBE
INDEMNITY CO., 26 F.2D 191; UNITED STATES V. BELL, 135 F. 336; IN RE
WALKER GRAIN CO., 3 F.2D 872, 874; DIST'G DISTRICT OF COLUMBIA V.
FIDELITY & DEPOSIT CO., 271 F. 383. 

THE STATUTE PERMITS A BOND NORMALLY SUFFICIENT TO COVER BOTH THE
GOVERNMENT AND THE MAIL-USERS.  THERE IS NO LIMIT ON THE PENALTY.  THE
GOVERNMENT MAY EXACT A NEW BOND IF A RECOVERY ON AN EXISTING BOND
DIMINISHES SECURITY FOR THE FUTURE.  POSTAL LAWS AND REGS., 1932, SEC.
414. 

LIABILITY ON AN OFFICIAL BOND IS CO-EXTENSIVE WITH THE LIABILITY OF
THE OFFICER HIMSELF.  NATIONAL SURETY CO. V. UNITED STATES, 129 F. 70;
GIBSON V. UNITED STATES, 208 F. 534; AMERICAN SURETY CO. V. UNITED
STATES, 133 F. 1019. 

IF THE GOVERNMENT, AS BAILEE, MAY SUE A THIRD PERSON WHO WRONGFULLY
DEALS WITH THE SUBJECT OF BAILMENT, OR HIS SURETY, THEN THE SENDER OF A
LETTER, AS BAILOR, IS ENTITLED TO THE SAME REMEDY.  NEW JERSEY STEAM
NAV. CO. V. BOSTON MERCHANTS BANK, 6 HOW.  344. 

PLAINTIFF'S RIGHT TO SUE IN THE NAME OF THE UNITED STATES DERIVES
FROM THE FACT THAT CONGRESS INTENDED MAIL-USERS SHOULD BE BENEFICIARIES
OF THE BOND, AND PRESCRIBED NO OTHER REMEDY.  HOWARD V. UNITED STATES,
SUPRA. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER PETITIONER, A PRIVATE USER OF THE
MAILS, MAY WITHOUT THE CONSENT OF ANY OFFICER OF THE UNITED STATES
BRING SUIT ON THE BOND OF AN ACTING POSTMASTER FOR CONSEQUENTIAL
DAMAGES RESULTING FROM MISDELIVERY OF MAIL.  THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT AFFIRMED A JUDGMENT OF THE DISTRICT
COURT FOR THE DISTRICT OF MINNESOTA DISMISSING PETITIONER'S COMPLAINT. 
FN1  WE GRANTED CERTIORARI  FN2  BECAUSE OF AN ALLEGED CONFLICT WITH A
DECISION OF THIS COURT  FN3  AND BECAUSE AN IMPORTANT QUESTION IN THE
ADMINISTRATION OF THE POSTAL LAWS WAS INVOLVED. 

THE COMPLAINT ALLEGED THAT PETITIONER WAS ENGAGED IN THE BUSINESS OF
AUTOMOBILE FINANCING IN MINNEAPOLIS, IN THE COURSE OF WHICH IT
PURCHASED FROM AUTOMOBILE DEALERS THE INSTALLMENT NOTES OF BUYERS
SECURED BY THEIR SALES CONTRACTS.  A DEALER LIVING AT MONTGOMERY,
MINNESOTA, WHERE THE RESPONDENT MALONE WAS ACTING POSTMASTER, IS
ALLEGED TO HAVE PUT INTO OPERATION A SCHEME TO DEFRAUD PETITIONER BY
SELLING IT FORGED NOTES AND CONTRACTS, WHICH HE SENT PETITIONER ALONG
WITH A FICTITIOUS LIST OF CREDIT REFERENCES.  PETITIONER, BEFORE
PURCHASING, FOLLOWED ITS USUAL PRACTICE OF MAILING LETTERS OF INQUIRY
TO THE REFERENCES, AND AFTER PURCHASING MAILED PAYMENT BOOKS, INSURANCE
CERTIFICATES, AND RECEIPTS TO THE PURPORTED MAKERS OF THE NOTES.  THE
DEALER PERSUADED THE ACTING POSTMASTER MALONE, ALLEGEDLY IN VIOLATION
OF THE POSTAL REGULATIONS,  FN4  TO TURN OVER TO HIM ALL LETTERS THAT
ARRIVED IN MONTGOMERY IN PETITIONER'S ENVELOPES.  THEN HE SENT FORGED
REPLIES TO PETITIONER'S LETTERS AND MADE INSTALLMENT PAYMENTS OUT OF
THE MONEY WHICH PETITIONER HAD PAID HIM IN BUYING THE NOTES.  THE
DEALER THUS DEFRAUDED THE FINANCE COMPANY OF SOME $34,000.  THE
RESPONDENT MALONE, ON TAKING OFFICE AS ACTING POSTMASTER, HAD EXECUTED
A BOND FOR $16,000 TO THE UNITED STATES AS SOLE OBLIGEE WITH THE
RESPONDENT SURETY CORPORATION AS SURETY.  THE CONDITION OF THE BOND
WAS: 

"THAT IF THE SAID PATRICK J. MALONE SHALL ON AND AFTER THE DATE HE
TOOK CHARGE OF THE POST OFFICE FAITHFULLY DISCHARGE ALL DUTIES AND
TRUSTS IMPOSED ON HIM AS ACTING POSTMASTER EITHER BY LAW OR BY THE
REGULATIONS OF THE POST OFFICE DEPARTMENT, AND SHALL PERFORM ALL DUTIES
AS FISCAL AGENT OF THE GOVERNMENT IMPOSED ON HIM BY LAW OR BY
REGULATION OF THE TREASURY DEPARTMENT MADE IN CONFORMITY WITH LAW, AND
SHALL ALSO PERFORM ALL DUTIES AND OBLIGATIONS IMPOSED UPON OR REQUIRED
OF HIM BY LAW, OR BY REGULATION MADE PURSUANT TO LAW, IN CONNECTION
WITH THE POSTAL SAVINGS SYSTEM, THEN THIS OBLIGATION SHALL BE VOID;
OTHERWISE, OF FORCE." 

IN ITS COMPLAINT, WITHOUT ALLEGING SPECIFIC AUTHORIZATION FROM THE
UNITED STATES TO SUE, PETITIONER ASKED JUDGMENT ON THE BOND FOR THE
DEFAULTS OF MALONE AS POSTMASTER.  AT THE CLOSE OF THE TESTIMONY AT THE
TRIAL MOTIONS TO DISMISS THE COMPLAINT WERE MADE BY RESPONDENTS AND THE
DISTRICT JUDGE RESERVED JUDGMENT.  AFTER A JURY VERDICT FOR PETITIONER
THE MOTIONS WERE GRANTED.  THE COURT OF APPEALS AFFIRMED ON THE GROUND
THAT A PRIVATE USER OF THE MAILS CANNOT MAINTAIN SUCH AN ACTION AS IS
HERE ALLEGED WITHOUT THE CONSENT OF THE UNITED STATES, THE OBLIGEE IN
THE BOND, AND THAT NO CONSENT WAS GIVEN EITHER BY THE STATUTES,
EXPRESSLY OR BY IMPLICATION, OR BY ANY APPROPRIATE OFFICER OF THE
UNITED STATES. 

THE RESPONDENT GAVE A STATUTORY BOND IN COMPLIANCE WITH AN ENACTMENT
OF THE CONGRESS FOR THE PURPOSES SPECIFIED IN THE STATUTE.  FN5  AS THE
BOND IS PART OF AN INTEGRATED SYSTEM OF POSTAL REGULATIONS, THE
DETERMINATION OF THE PARTIES AUTHORIZED TO SUE UPON IT IS A FEDERAL
QUESTION GOVERNED BY FEDERAL LAW.  FN6 

WE AGREE WITH THE COURT OF APPEALS THAT THERE WAS NO CONSENT AND THAT
SUCH CONSENT IS NECESSARY.  CONSEQUENTLY THERE IS NO OCCASION TO
DETERMINE WHETHER THE BOND WAS INTENDED TO PROTECT PRIVATE USERS OF THE
MAIL FROM ALL LOSS OR DAMAGE, HOWEVER CONSEQUENTIAL, OCCASIONED BY THE
POSTMASTER. 

THE RECORD SHOWS THE ONLY EFFORT MADE TO SECURE CONSENT OF AN OFFICER
WAS A REQUEST TO THE ATTORNEY GENERAL FOR AUTHORITY TO SUE.  THIS WAS
REFUSED.  WHETHER AS A MATTER OF RIGHT A THIRD PARTY MAY SUE ON THE
INSTRUMENT FOR LOSS COVERED BY AN OFFICIAL BOND RUNNING ONLY TO THE
STATUTORY OBLIGEE DEPENDS UPON THE INTENTION OF THE LEGISLATIVE BODY
WHICH REQUIRED THE BOND.  THIS INTENTION MAY BE EVIDENCED BY EXPRESS
STATUTORY LANGUAGE OR BY IMPLICATION.  THIS WAS THE RULE ANNOUNCED IN
CORPORATION OF WASHINGTON V. YOUNG.  FN7  THERE A BOND HAD BEEN GIVEN
TO THE CORPORATION OF WASHINGTON, A MUNICIPALITY, BY THE MANAGER OF A
LOTTERY "TRULY AND IMPARTIALLY TO EXECUTE" HIS DUTIES.  WITHOUT THE
CITY'S CONSENT, THE HOLDER OF A WINNING TICKET SUED ON THE BOND.  THIS
COURT SAID: 

"NO PERSON WHO IS NOT THE PROPRIETOR OF AN OBLIGATION, CAN HAVE A
LEGAL RIGHT TO PUT IT IN SUIT, UNLESS SUCH RIGHT BE GIVEN BY THE
LEGISLATURE; AND NO PERSON CAN BE AUTHORIZED TO USE THE NAME OF
ANOTHER, WITHOUT HIS ASSENT GIVEN IN FACT, OR BY LEGAL INTENDMENT." 

IN HOWARD V. UNITED STATES  FN8  THIS COMMENT WAS MADE UPON THE YOUNG
DECISION: 

"THAT CASE UNDOUBTEDLY IS AUTHORITY FOR THE PROPOSITION THAT,
GENERALLY SPEAKING, AN OBLIGATION TAKEN UNDER LEGISLATIVE SANCTION
CANNOT, IN THE ABSENCE OF A STATUTE SO PROVIDING, BE PUT IN SUIT IN THE
NAME OF THE OBLIGEE, THE PROPRIETOR OF THE OBLIGATION, WITHOUT HIS
CONSENT."  FN9  SUCH OFFICIAL BONDS ARE OFTEN PART OF A GENERAL
STATUTORY PLAN FOR THE OPERATION OF GOVERNMENTAL ACTIVITIES.  WHILE ALL
THE ACTIVITIES OF A GOVERNMENT OF COURSE CONFER BENEFITS ON ITS
CITIZENS, FREQUENTLY THE BENEFITS ARE INCIDENTAL AND UNENFORCEABLE. 
FN10  IN THE CASE OF AN OFFICIAL BOND, EVEN IF ITS BENEFITS ARE NOT
INCIDENTAL, IT MAY WELL BE THAT THE LEGISLATIVE BODY IS OF THE OPINION
THAT ACTIONS ON THE BOND SHOULD BE LIMITED TO THE GOVERNMENT IN ORDER
TO SECURE UNIFIED ADMINISTRATION OF CLAIMS. 

WE HAVE RECOGNIZED A SIMILAR NEED FOR A SINGLE CONTROL IN REGARD TO A
SALE BOND REQUIRED BY A DISTRICT COURT IN AN EQUITY RECEIVERSHIP.  THIS
COURT IN MUNROE V. RAPHAEL  FN11  HAD BEFORE IT AN INJUNCTION GRANTED
BY A FEDERAL DISTRICT COURT UPON THE MOTION OF ITS RECEIVER TO RESCIND
A CONSENT TO SUE AND FORBID FURTHER PROCEEDINGS IN A SUIT IN A STATE
COURT IN THE NAME OF THE UNITED STATES UPON A SALE BOND OF THE ESTATE
IN RECEIVERSHIP.  THE SALE BOND HAD BEEN GIVEN FOR ASSETS PURCHASED
FROM THE RECEIVER.  IT RAN TO THE UNITED STATES ONLY AND GUARANTEED THE
PAYMENT OF A CERTAIN PERCENTAGE OF INDEBTEDNESS TO ALL CREDITORS OF THE
ESTATE.  THE SUIT HAD BEEN INSTITUTED IN THE STATE COURT BY ONE
CREDITOR, WITH PERMISSION OF THE DISTRICT COURT OBTAINED PRIOR TO THE
RECEIVER'S MOTION FOR INJUNCTION.  THIS COURT UPHELD THE INJUNCTION ON
THE THEORY THAT THE BOND, A PART OF THE ESTATE, REMAINED WITHIN THE
CONTROL OF THE COURT AND THAT TO ENSURE RATABLE PAYMENTS TO ALL
CREDITORS ONE SHOULD NOT BE PERMITTED TO CARRY ON THE LITIGATION.  IN
THE OPINION, IT WAS DECLARED:  "CERTAINLY NO CREDITOR COULD BRING A
SUIT IN HIS OWN NAME ON THE BOND, FOR HIS SHARE OF THE PURCHASE MONEY. 
NOR COULD HE INSTITUTE SUCH AN ACTION WITHOUT LEAVE OF THE DISTRICT
COURT."  FN12 

PETITIONER'S ATTACK IS POINTED AT THE APPLICATION OF THE CONSENT RULE
RATHER THAN AT THE RULE ITSELF.  WHILE WITH SOME OTHER OFFICIAL BONDS
CONSENT IS GIVEN BY EXPRESS PROVISION,  FN13  NONE IS GIVEN IN THE
POSTMASTER BOND STATUTE.  PETITIONER URGES THAT CONSENT BY IMPLICATION
IS GIVEN.  ATTENTION IS CALLED TO THE WORDS "LEGAL INTENDMENT" IN THE
QUOTATION FROM CORPORATION OF WASHINGTON V. YOUNG AND TO A COMMENT UPON
THE YOUNG CASE IN THE HOWARD CASE THAT THESE WORDS SHOW THAT "CONSENT
MAY, UNDER SOME CIRCUMSTANCES, BE ASSUMED TO HAVE BEEN GIVEN  ..." 
FN14  THESE EXPRESSIONS ARE USED TO BASE AN ARGUMENT THAT THE STATUTES
AND REGULATIONS OF THE POSTAL SERVICE ESTABLISH CONSENT BY INTENDMENT. 
THE PRECEDENT CHIEFLY RELIED UPON FOR THIS POSITION IS THE HOWARD
CASE.  THIS WAS A SUIT, WITHOUT EXPRESS CONSENT OF THE UNITED STATES,
ON A BOND OF A CLERK OF THE DISTRICT COURT, ALLEGING BREACH BY FAILURE
TO PAY OVER MONEY DEPOSITED WITH THE CLERK IN SETTLEMENT OF PRIOR
LITIGATION.  THE BOND WAS A STATUTORY BOND NAMING THE UNITED STATES AS
SOLE OBLIGEE AND ASSURING THAT THE CLERK WOULD FAITHFULLY DISCHARGE THE
DUTIES OF HIS OFFICE.  THIS COURT ANALYZED THE STATUTORY REQUIREMENTS
AND THE "PECULIAR RELATION" OF THE CLERK TO THE COURT TO DETERMINE THE
INTENDMENT OF THE CONGRESS AS TO THE STANDING OF THE PRIVATE LITIGANT
TO SUE ON CLERKS' BONDS.  CONSIDERATION WAS GIVEN TO THE FACT THAT "THE
GREAT MASS OF LITIGATION  ...  HAS ALWAYS BEEN BETWEEN INDIVIDUALS,"
FN15  THAT "THE PRACTICE OF A CENTURY" REQUIRED A RULING THAT THE BOND
COVERED THEM AND THAT IT COULD NOT BE SAID OF THE CLERK'S BOND, AS IT
WAS SAID OF THE LOTTERY BOND, THAT IT WAS GIVEN PRIMARILY FOR THE
GOVERNMENTAL AUTHORITY.  THIS COURT CONCLUDED THAT EVEN THOUGH
"GENERALLY SPEAKING  ...  IN THE ABSENCE OF A STATUTE" THE OBLIGATION
CANNOT BE PUT IN SUIT IN THE NAME OF THE OBLIGEE WITHOUT HIS CONSENT,
THE FACTORS OF CUSTOM, SIMILARITY OF GOVERNMENTAL AND PRIVATE USE OF
THE COURTS AND THE SURROUNDING CIRCUMSTANCES, IN THE ABSENCE OF WORDS
DECLARATORY OF INTENTION, EVIDENCED AN INTENDMENT TO PERMIT SUIT
WITHOUT CONSENT ON THE CLERK'S BOND.  "IN OUR OPINION, CONGRESS
INTENDED THAT THE REQUIRED BOND SHOULD PROTECT PRIVATE SUITORS AS WELL
AS THE UNITED STATES, AND THEREFORE, NO STATUTE FORBIDDING IT, A
PRIVATE SUITOR MAY BRING AN ACTION THEREON FOR HIS BENEFIT IN THE NAME
OF THE OBLIGEE, THE UNITED STATES.  SUCH MUST BE HELD TO BE THE LEGAL
INTENDMENT OF EXISTING STATUTORY PROVISIONS."  FN16 

WE CONCLUDE IN THE PRESENT INSTANCE, HOWEVER, THAT CIRCUMSTANCES,
PRACTICE, STATUTES AND REGULATIONS COMBINE TO FORBID READING INTO THIS
SITUATION A "LEGAL INTENDMENT" TO PERMIT SUIT WITHOUT THE CONSENT OF
THE UNITED STATES.  ASSUMING THE BOND DECLARED UPON HERE IS INTENDED TO
COVER THE USERS OF MAIL SERVICE, ITS BENEFICIARIES ARE LEGION IN
COMPARISON WITH THE USERS OF A COURT'S DEPOSITORY.  MOREOVER, THE
UNITED STATES HAS A VERY SUBSTANTIAL INTEREST IN A POSTMASTER'S BOND. 
THE STATUTORY DUTIES OF A POSTMASTER REQUIRE HIM TO ACT AS A FISCAL
OFFICER FOR THE GOVERNMENT AT HIS OFFICE.  HE IS RESPONSIBLE FOR POSTAL
SAVINGS DEPOSITS, MONEY ORDERS, STAMPS, AND SALARY DISBURSEMENTS AS
WELL AS FOR THE PROPERTY OF THE SERVICE, BUILDINGS, MAIL BAGS AND OTHER
EQUIPMENT.  FN17  SUCH CIRCUMSTANCES WEIGH AGAINST A HOLDING THAT THE
CONGRESS INTENDED TO LET A PRIVATE USER OF THE MAILS, WRONGED BY THE
PRINCIPAL OF A POSTMASTER'S BOND, SUE WHEREVER HE MIGHT FIND DEFENDANTS
AND GAIN FOR HIMSELF SUCH PRIORITY ON THE BOND AS VIGILANCE COULD
OBTAIN.  FN18 

APPARENTLY IT IS NOT CUSTOMARY FOR THE UNITED STATES TO CONSENT TO
SUIT BY MAIL USERS UPON POSTMASTERS' BONDS.  NO CASE HAS BEEN CALLED TO
OUR ATTENTION WHERE SUCH PERMISSION HAS BEEN GRANTED THOUGH THE
REQUIREMENT FOR A BOND HAS BEEN IN EXISTENCE SINCE 1825.  FN19  RARELY
HAS A PRIVATE INDIVIDUAL SOUGHT RECOVERY.  FN20  THE CONTENTION OF
PETITIONER CANNOT BE SAID TO BE SUPPORTED BY ANY CONTINUED
ADMINISTRATIVE PRACTICE.  ON THE OTHER HAND, THE UNITED STATES HAS
UNDERTAKEN REPEATEDLY AND SUCCESSFULLY TO RECOVER ON THE BONDS FOR THE
LOSSES OF MAIL USERS.  RECOVERY HAS BEEN ALLOWED ON THE THEORY OF A
SUIT BY A BAILEE FOR LOSS OF PROPERTY IN HIS POSSESSION.  FN21    THERE
ARE OVER 44,000 POST OFFICES UNDER THE POST OFFICE DEPARTMENT  FN22
AND IT IS COMMON KNOWLEDGE THAT MILLIONS OF ITEMS OF MAIL GO THROUGH
THEM EACH YEAR.  IT IS RATHER OBVIOUS THAT NUMEROUS CLAIMS, MANY OF
THEM FOR SMALL AMOUNTS, ARE LIKELY TO ARISE IN THE COURSE OF MANY
TRANSACTIONS.  FN23  UNDER THE DEPARTMENT'S REGULATIONS THERE IS A
FAIRLY COMPLETE ADMINISTRATIVE FORMULA FOR HANDLING THESE CLAIMS FROM
DISCOVERY TO SATISFACTION.  FN24  THESE FACTS, ALONG WITH THE
SUBSTANTIAL INTEREST OF THE GOVERNMENT IN THE BONDS, CONVINCE US THAT
THE CONGRESS INTENDED THAT CLAIMS ON THE BONDS WOULD BE HANDLED THROUGH
THE GOVERNMENT RATHER THAN THROUGH VARIOUS SUITS BY INDIVIDUALS. 
AFFIRMED. 

FN1  103 F.2D 450, AFFIRMING 23 F. SUPP 411. 

FN2  308 U.S. 534. 

FN3  HOWARD V. UNITED STATES, 184 U.S. 676. 

FN4  POSTAL LAWS AND REGULATIONS (1932), SEC. 777.  "MAIL MATTER
SHOULD BE DELIVERED TO THE PERSON ADDRESSED OR IN ACCORDANCE WITH HIS
WRITTEN ORDER  ...  " 

"2.  WHEN A PERSON REQUESTS DELIVERY TO HIM OF THE MAIL OF ANOTHER,
CLAIMING THAT THE ADDRESSEE HAS VERBALLY GIVEN HIM AUTHORITY TO RECEIVE
IT, THE POSTMASTER, IF HE DOUBTS THE AUTHORITY, MAY REQUIRE IT TO BE IN
WRITING, SIGNED AND FILED IN HIS OFFICE.  ...  " 

FN5  39 U.S.C. SEC. 34, POSTAL LAWS AND REGULATIONS SEC. 410: 

"EVERY POSTMASTER, BEFORE ENTERING UPON THE DUTIES OF HIS OFFICE,
SHALL GIVE BOND, WITH GOOD AND APPROVED SECURITY, AND IN SUCH PENALTY
AS THE POSTMASTER GENERAL SHALL DEEM SUFFICIENT, CONDITIONED FOR THE
FAITHFUL DISCHARGE OF ALL DUTIES AND TRUSTS IMPOSED ON HIM EITHER BY
LAW OR THE RULES AND REGULATIONS OF THE DEPARTMENT." 

FN6  JAMES STEWART & CO. V. SADRAKULA, ANTE, P. 94. 

FN7  10 WHEAT.  406, 409. 

FN8  184 U.S. 676, 691. 

FN9  CF. UNITED STATES V. UNITED STATES LINES CO., 24 F.SUPP.  427;
MOODY V. MEGEE, 31 F.2D 117; UNITED STATES EX REL. BRUMBERG BROS. V.
GLOBE INDEMNITY CO., 26 F.2D 191, 193; IDAHO GOLD REDUCTION CO. V.
CROGHAN, 6 IDAHO 471, 473; 56 P. 164; UNITED STATES V. GRISWOLD, 8
ARIZ. 453, 456; 76 P. 596. 

FN10  GERMAN ALLIANCE INS. CO. V. HOME WATER SUPPLY CO., 226 U.S.
220, 231. 

FN11  288 U.S. 485. 

FN12  IBID. AT 488; SEE DISTRICT OF COLUMBIA TO USE OF LANGELLOTTI V.
FIDELITY & DEPOSIT CO., 50 APP. D.C. 309; 271 F. 383. 

FN13  40 U.S.C. SEC. 270A-D (LABORERS AND MATERIALMEN MAY SUE ON BOND
OF CONTRACTOR FOR GOVERNMENT BUILDING); 22 U.S.C. SEC. 103("ANY PERSON
INJURED" MAY SUE ON BOND OF CONSUL); 22 U.S.C. SEC. 78(SAME AS TO BONDS
OF CONSULAR OFFICERS ACTING AS ADMINISTRATORS IN FOREIGN COUNTRIES); 22
U.S.C. SECS. 170, 171(SAME AS TO BONDS OF MARSHALS OF CONSULAR COURTS);
28 U.S.C. SECS. 496, 500(SAME AS TO BONDS OF U.S. MARSHALS); 11 U.S.C.
SEC. 78(H)(SAME AS TO BONDS OF REFEREES, TRUSTEES AND DESIGNATED
DEPOSITORIES IN BANKRUPTCY); 7 U.S.C. SECS. 247, 249(SAME AS TO BONDS
OF WAREHOUSEMEN UNDER THE WAREHOUSE ACT). 

FN14  184 U.S. 676, 691. 

FN15  ID., P. 687. 

FN16  ID., P. 692. 

FN17  POSTAL LAWS AND REGULATIONS SECS. 105-06, 443, 1626, 1408,
1426, 1430(21), 137, 235, 1866-70. 

FN18  IN THE ABSENCE OF EXPRESS LEGISLATION THE GOVERNMENT IS NOT
ENTITLED TO PRIORITY.  SEE UNITED STATES V. STATE BANK OF NORTH
CAROLINA, 6 PET. 29, 35; MELLON V. MICHIGAN TRUST CO., 271 U.S. 236,
239; UNITED STATES V. KNOTT, 298 U.S. 544, 547. 

THE FIRST STATUTE PERMITTING PRIVATE SUITS ON PUBLIC CONTRACTORS'
BONDS TO THE UNITED STATES MADE NO PROVISION FOR GOVERNMENT PRIORITY. 
28 STAT. 278.  BY A LATER AMENDMENT PRIVATE SUITS WERE FORBIDDEN UNTIL
SIX MONTHS AFTER COMPLETION OF THE CONTRACT AND SETTLEMENT OF THE
CONTRACTORS' ACCOUNTS AND THE GOVERNMENT WAS GIVEN PRIORITY.  33 STAT.
811; SEE ILLINOIS SURETY CO. V. PEELER, 240 U.S. 214, 217.  THE PRESENT
STATUTE REQUIRES TWO BONDS, ONE FOR THE GOVERNMENT AND A SECOND FOR
LABORERS AND MATERIALMEN.  40 U.S.C. SEC. 270A-D. 

FN19  ACT OF MARCH 3, 1825, 4 STAT. 103. 

FN20  CF. WILE V. UNITED STATES FIDELITY & GUARANTY CO., 6 ALASKA 48;
IDAHO GOLD REDUCTION CO. V. CROGHAN, 6 IDAHO 471; 56 P. 164. 

FN21  NATIONAL SURETY CO. V. UNITED STATES, 129 F. 70(C.C.A. 8);
AMERICAN SURETY CO. V. UNITED STATES, 133 F. 1019(C.C.A. 5); UNITED
STATES V. AMERICAN SURETY CO., 163 F. 228(C.C.A. 4); UNITED STATES V.
AMERICAN SURETY CO., 155 F. 941(N.D. ILL.); GIBSON V. UNITED STATES,
208 F. 534(C.C.A. 1); UNITED STATES FIDELITY & GUARANTY CO. V. UNITED
STATES, 229 F. 397(C.C.A. 8); UNITED STATES FIDELITY & GUARANTY CO. V.
UNITED STATES, 246 F. 433(C.C.A. 9); UNITED STATES V. UNITED STATES
FIDELITY & GUARANTY CO., 247 F. 16(C.C.A. 6); UNITED STATES V.
GRISWOLD, 8 ARIZ. 453; 76 P. 596. 

FN22  REPORT OF THE POSTMASTER GENERAL, 1939, P. 126. 

FN23  COMPARE THE DEPARTMENT'S EXPERIENCE WITH CLAIMS ON DOMESTIC
INSURED MAIL DURING THE FISCAL YEAR ENDING JUNE 30, 1939.  PAYMENTS
WERE MADE IN CONNECTION WITH 113,846 CLAIMS, AND THE AVERAGE PAYMENT
AMOUNTED TO ONLY $3.87.  REPORT OF THE POSTMASTER GENERAL, 1939, P.
120. 

FN24  POSTAL LAWS AND REGULATIONS SEC. 816: 

"THE LOSS, RIFLING, DAMAGE, WRONG DELIVERY OF, OR DEPREDATION UPON
REGISTERED OR OTHER MAIL, AND THE FAILURE TO COLLECT OR REMIT C.O.D.
FUNDS SHALL BE INVESTIGATED BY THE CHIEF INSPECTOR, WHO SHALL ASCERTAIN
THE FACTS. 

"2.  WHEN THE CHIEF INSPECTOR FINDS THAT THE FACTS ASCERTAINED IN
CONNECTION WITH SUCH AN INVESTIGATION ESTABLISH THE RESPONSIBILITY, BY
REASON OF FAULT OR NEGLIGENCE, OF A POSTAL EMPLOYEE OR MAIL CONTRACTOR
OR AN AGENT OR EMPLOYEE THEREOF, THE CHIEF INSPECTOR SHALL DEMAND THE
AMOUNT OF THE LOSS FROM SUCH EMPLOYEE OR CONTRACTOR. 

     .         .         .       .         . 

"6.  IF FULL RECOVERY IS NOT MADE AND THE CHIEF INSPECTOR DETERMINES
THAT FURTHER PROCEEDINGS SHOULD BE HAD, HE SHALL PRESENT THE FACTS TO
THE SOLICITOR FOR THE POST OFFICE DEPARTMENT FOR ADVICE AS TO THE
ADVISABILITY OF SUIT BY THE UNITED STATES FOR RECOVERY OF THE AMOUNT
INVOLVED.  UPON RECEIPT OF THE REPLY OF THE SOLICITOR THE CHIEF
INSPECTOR SHALL, IF HE DEEM PROPER, PREPARE THE REQUEST OF THE
POSTMASTER GENERAL UPON THE SOLICITOR OF THE TREASURY FOR SUIT. 

"7.  ALL AMOUNTS RECOVERED UNDER THE PROVISIONS OF THIS SECTION SHALL
BE PAID TO THE UNITED STATES AND TO THE SENDERS OR OWNERS OF THE MAIL
AS THEIR INTERESTS SHALL APPEAR." 
..END :



YEARSLEY V. ROSS CONSTR. CO., 309 U.S. 18 


NO. 156.  ARGUED JANUARY 3, 4, 1940.  - DECIDED JANUARY 29, 1940.  - 103
F.2D 589, AFFIRMED. 


1.  A CONTRACTOR WORKING FOR IMPROVEMENT OF RIVER NAVIGATION IN
CONFORMITY WITH A CONTRACT WITH THE GOVERNMENT AUTHORIZED BY A VALID
ACT OF CONGRESS, IS NOT LIABLE FOR INJURY RESULTING TO PRIVATE RIPARIAN
LAND, EVEN THOUGH WHAT IS SO DONE AMOUNTS TO A TAKING OF PROPERTY BY
THE GOVERNMENT.  P. 20. 

WHERE AN AGENT OR OFFICER OF THE GOVERNMENT PURPORTING TO ACT ON ITS
BEHALF HAS BEEN HELD TO BE LIABLE FOR HIS CONDUCT CAUSING INJURY TO
ANOTHER, THE GROUND OF LIABILITY HAS BEEN FOUND TO BE EITHER THAT HE
EXCEEDED HIS AUTHORITY OR THAT IT WAS NOT VALIDLY CONFERRED. 

2.  FOR A TAKING OF PRIVATE PROPERTY IN THE COURSE OF AUTHORIZED
NAVIGATION IMPROVEMENT, THE GOVERNMENT IMPLIEDLY PROMISES TO PAY JUST
COMPENSATION, RECOVERABLE BY SUIT AGAINST THE UNITED STATES IN THE
COURT OF CLAIMS.  P. 21. 

3.  THE REMEDY THUS AFFORDED IS PLAIN AND ADEQUATE, AND SATISFIES THE
FIFTH AMENDMENT.  PAYMENT IN ADVANCE OF TAKING IS NOT REQUIRED BY THE
AMENDMENT.  PP. 21, 22. 

YEARSLEY ET AL. V. W.A. ROSS CONSTRUCTION CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 308 U.S. 538, TO REVIEW THE REVERSAL OF A JUDGMENT
RECOVERED BY THE PRESENT PETITIONERS IN AN ACTION AGAINST THE
RESPONDENT FOR DAMAGES TO THEIR RIPARIAN LANDS. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

IN THIS ACTION, BROUGHT IN THE STATE COURT OF NEBRASKA AND REMOVED TO
THE FEDERAL COURT, PETITIONERS SOUGHT TO RECOVER DAMAGES UPON THE
GROUND THAT THE RESPONDENT COMPANY HAD BUILT DIKES IN THE MISSOURI
RIVER AND, USING LARGE BOATS WITH PADDLES AND PUMPS TO PRODUCE
ARTIFICIAL EROSION, HAD WASHED AWAY A PART OF PETITIONERS' LAND. 
RESPONDENT ALLEGED IN DEFENSE THAT THE WORK WAS DONE PURSUANT TO A
CONTRACT WITH THE UNITED STATES GOVERNMENT, AND UNDER THE DIRECTION OF
THE SECRETARY OF WAR AND THE SUPERVISION OF THE CHIEF OF ENGINEERS OF
THE UNITED STATES, FOR THE PURPOSE OF IMPROVING THE NAVIGATION OF THE
MISSOURI RIVER, AS AUTHORIZED BY AN ACT OF CONGRESS.  PETITIONERS IN
REPLY ALLEGED THAT THE CONTRACT DID NOT CONTEMPLATE THE TAKING OF THEIR
LAND WITHOUT JUST COMPENSATION AND THAT THE ACTS OF THE CONTRACTOR
RESULTED IN THE DESTRUCTION OF PETITIONERS' PROPERTY IN VIOLATION OF
THEIR RIGHTS UNDER THE FIFTH AMENDMENT OF THE FEDERAL CONSTITUTION. 

PETITIONERS HAD JUDGMENT WHICH THE CIRCUIT COURT OF APPEALS
REVERSED.  103 F.2D 589.  CERTIORARI WAS GRANTED BECAUSE OF ALLEGED
CONFLICT WITH APPLICABLE DECISIONS OF THIS COURT.  308 U.S. 538.  THE
GOVERNMENT HAS BEEN PERMITTED TO APPEAR AS AMICUS CURIAE. 

THE CIRCUIT COURT OF APPEALS FOUND THAT THE EVIDENCE ESTABLISHED
"THAT TWO DIKES BUILT IN THE RIVER ABOVE, AND ONE DIKE BUILT OPPOSITE,
THEIR (PETITIONERS') LAND HAD DIVERTED THE CHANNEL OR THE CURRENT OF
THE RIVER FROM THE IOWA SHORE TO THE NEBRASKA SHORE" AND THAT AS A
RESULT THE "ACCRETION LAND" OF PETITIONERS "TO THE EXTENT OF PERHAPS 95
ACRES HAD BEEN ERODED AND CARRIED AWAY."  THERE WAS EVIDENCE TENDING TO
SHOW THAT IN EXTENDING THE DIKE OPPOSITE PETITIONERS' LAND, THE
CONTRACTOR, "APPARENTLY TO KEEP OPEN AN ADEQUATE CHANNEL FOR NAVIGATION
BETWEEN THE END OF THE DIKE AND THE SHORE," HAD ACCELERATED THE EROSION
"BY USING THE PADDLE WHEELS OF ITS STEAMBOATS TO INCREASE THE ACTION OF
THE CURRENT."  BUT THERE WAS NO EVIDENCE, AS THE COURT OF APPEALS SAID,
THAT THIS "PADDLE WASHING" HAD DONE" ANYTHING MORE THAN HASTEN THE
INEVITABLE."  THE COURT OF APPEALS ALSO FOUND IT TO BE UNDISPUTED "THAT
THE WORK WHICH THE CONTRACTOR HAD DONE IN THE RIVER BED WAS ALL
AUTHORIZED AND DIRECTED BY THE GOVERNMENT OF THE UNITED STATES FOR THE
PURPOSE OF IMPROVING THE NAVIGATION OF THIS NAVIGABLE RIVER."  IT IS
ALSO CONCEDED THAT THE WORK THUS AUTHORIZED AND DIRECTED BY THE
GOVERNMENTAL OFFICERS WAS PERFORMED PURSUANT TO THE ACT OF CONGRESS OF
JANUARY 21, 1927, 44 STAT. 1010, 1013. 

IN THAT VIEW, IT IS CLEAR THAT IF THIS AUTHORITY TO CARRY OUT THE
PROJECT WAS VALIDLY CONFERRED, THAT IS, IF WHAT WAS DONE WAS WITHIN THE
CONSTITUTIONAL POWER OF CONGRESS, THERE IS NO LIABILITY ON THE PART OF
THE CONTRACTOR FOR EXECUTING ITS WILL.  SEE MURRAY'S LESSEE V. HOBOKEN
LAND & IMPROVEMENT CO., 18 HOW.  272, 283; LAMAR V. BROWNE, 92 U.S.
187, 199; THE PAQUETE HABANA, 189 U.S. 453, 465.  WHERE AN AGENT OR
OFFICER OF THE GOVERNMENT PURPORTING TO ACT ON ITS BEHALF HAS BEEN HELD
TO BE LIABLE FOR HIS CONDUCT CAUSING INJURY TO ANOTHER, THE GROUND OF
LIABILITY HAS BEEN FOUND TO BE EITHER THAT HE EXCEEDED HIS AUTHORITY OR
THAT IT WAS NOT VALIDLY CONFERRED.  PHILADELPHIA COMPANY V. STIMSON,
223 U.S. 605, 619, 620.  SEE UNITED STATES V. LEE, 106 U.S. 196, 220,
221; NOBLE V. UNION RIVER LOGGING R. CO., 147 U.S. 165, 171, 172;
TINDAL V. WESLEY, 167 U.S. 204, 222; SCRANTON V. WHEELER, 179 U.S. 141,
152; AMERICAN SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S. 94,
108, 110. 

PETITIONERS PRESENT THE QUESTION WHETHER THE BUILDING OF THE DIKES
AND THE EROSION OF THEIR LAND, BECAUSE OF THE CONSEQUENT DIVERSION OF
THE CURRENT OF THE RIVER, CONSTITUTED A TAKING OF THEIR PROPERTY FOR
WHICH COMPENSATION MUST BE MADE.  WE DO NOT FIND IT NECESSARY TO PASS
UPON THAT QUESTION, FOR IF THE AUTHORIZED ACTION IN THIS INSTANCE DOES
CONSTITUTE A TAKING OF PROPERTY FOR WHICH THERE MUST BE JUST
COMPENSATION UNDER THE FIFTH AMENDMENT, THE GOVERNMENT HAS IMPLIEDLY
PROMISED TO PAY THAT COMPENSATION AND HAS AFFORDED A REMEDY FOR ITS
RECOVERY BY A SUIT IN THE COURT OF CLAIMS.  28 U.S.C. 250.  UNITED
STATES V. GREAT FALLS MANUFACTURING CO., 112 U.S. 645, 656, 657; GREAT
FALLS MANUFACTURING CO. V. ATTORNEY GENERAL, 124 U.S. 581, 600; UNITED
STATES V. LYNAH, 188 U.S. 445, 465, 466; TEMPEL V. UNITED STATES, 248
U.S. 121, 129, 130; HURLEY V. KINCAID, 285 U.S. 95, 104, 105.  "THE
FIFTH AMENDMENT DOES NOT ENTITLE HIM (THE OWNER) TO BE PAID IN ADVANCE
OF THE TAKING" AND THE STATUTE AFFORDS A PLAIN AND ADEQUATE REMEDY. 
HURLEY V. KINCAID, SUPRA.  IT FOLLOWS THAT AS THE GOVERNMENT IN SUCH A
CASE PROMISES JUST COMPENSATION AND PROVIDES A COMPLETE REMEDY, ACTION
WHICH CONSTITUTES THE TAKING OF PROPERTY IS WITHIN ITS CONSTITUTIONAL
POWER AND THERE IS NO GROUND FOR HOLDING ITS AGENT LIABLE WHO IS SIMPLY
ACTING UNDER THE AUTHORITY THUS VALIDLY CONFERRED.  THE ACTION OF THE
AGENT IS "THE ACT OF THE GOVERNMENT."  UNITED STATES V. LYNAH, SUPRA. 

THIS PRINCIPLE HAS BEEN APPLIED UNDER THE STATUTE PROVIDING
COMPENSATION FOR THE USE BY THE GOVERNMENT OF PATENTED INVENTIONS
WITHOUT LICENSE OF THE OWNER.  ACT OF JUNE 25, 1910, 36 STAT. 423.  IN
CROZIER V. KRUPP, 224 U.S. 290, 305, THE COURT SAID:  "THE ADOPTION BY
THE UNITED STATES OF THE WRONGFUL ACT OF AN OFFICER IS OF COURSE AN
ADOPTION OF THE ACT WHEN AND AS COMMITTED, AND CAUSES SUCH ACT OF THE
OFFICER TO BE, IN VIRTUE OF THE STATUTE, A RIGHTFUL APPROPRIATION BY
THE GOVERNMENT, FOR WHICH COMPENSATION IS PROVIDED."  IN VIEW OF LATER
DECISIONS LIMITING THE SCOPE OF THAT STATUTE (CRAMP & SONS V. CURTIS
TURBINE CO., 246 U.S. 28; MARCONI WIRELESS TELEGRAPH CO. V. SIMON, 246
U.S. 46), CONGRESS AMENDED THE STATUTE SO AS TO INSURE COMPLETE
COMPENSATION BY THE GOVERNMENT AND THUS IT OPERATED TO RELIEVE THE
CONTRACTOR FROM LIABILITY OF EVERY KIND "FOR THE INFRINGEMENT OF
PATENTS IN MANUFACTURING ANYTHING FOR THE GOVERNMENT."  THE PROVISION
FOR THE RECOVERY FROM THE UNITED STATES OF "ENTIRE" COMPENSATION
"EMPHASIZED THE EXCLUSIVE AND COMPREHENSIVE CHARACTER OF THE REMEDY
PROVIDED."  RICHMOND SCREW ANCHOR CO. V. UNITED STATES, 275 U.S. 331,
343. 

SO, IN THE CASE OF A TAKING BY THE GOVERNMENT OF PRIVATE PROPERTY FOR
PUBLIC USE SUCH AS PETITIONERS ALLEGE HERE, IT CANNOT BE DOUBTED THAT
THE REMEDY TO OBTAIN COMPENSATION FROM THE GOVERNMENT IS AS
COMPREHENSIVE AS THE REQUIREMENT OF THE CONSTITUTION, AND HENCE IT
EXCLUDES LIABILITY OF THE GOVERNMENT'S REPRESENTATIVES LAWFULLY ACTING
ON ITS BEHALF IN RELATION TO THE TAKING. 

THE GOVERNMENT CONTENDS THAT IN THIS INSTANCE THERE HAS BEEN NO
TAKING OF PETITIONERS' LANDS WITHIN THE MEANING OF THE FIFTH
AMENDMENT.  THE CIRCUIT COURT OF APPEALS TOOK THAT VIEW, HOLDING THAT
PETITIONERS HAD SUSTAINED MERELY "CONSEQUENTIAL DAMAGES FROM THE
DEFLECTION OF WATERS BY REASON OF STRUCTURES LAWFULLY CONSTRUCTED IN
AID OF NAVIGATION."  PETITIONERS, AS WE HAVE SAID, COMBAT THIS RULING. 
WE DO NOT UNDERTAKE TO REVIEW IT OR THE AUTHORITIES CITED BY THE
PARTIES AND THE GOVERNMENT IN THAT RELATION, FOR PETITIONERS' CLAIM,
RESTING UPON THE THEORY THAT THERE HAS BEEN A "TAKING," HAS BEEN FOUND
UNTENABLE, AND THERE IS NO CONTENTION, OR BASIS FOR ONE, THAT IF THE
CONTRACTOR WAS ACTING FOR THE GOVERNMENT IN PROSECUTING ITS WORK IN AID
OF NAVIGATION WITHOUT THE TAKING OF PROPERTY, THE CONTRACTOR WOULD BE
SUBJECT TO THE ASSERTED LIABILITY. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IN REVERSING THAT OF THE
DISTRICT COURT IS AFFIRMED BUT UPON THE GROUNDS STATED IN THIS
OPINION.  AFFIRMED. 
..END :





CARPENTER V. WABASH RY. CO., 309 U.S. 23 


NO. 230.  ARGUED JANUARY 9, 1940.  - DECIDED JANUARY 29, 1940.  - 103
F.2D 996, VACATED. 


1.  APPLICABLE LEGISLATION ENACTED WHILE THE CASE WAS PENDING FOR
REVIEW WILL BE ENFORCED BY THE APPELLATE COURT.  P. 26. 

2.  THE AMENDMENT OF SEC. 77(N) OF THE BANKRUPTCY ACT, APPROVED AUG.
11, 1939, AND PROVIDING THAT "  ...  IN EQUITY RECEIVERSHIPS OF
RAILROAD CORPORATIONS NOW OR HEREAFTER PENDING IN ANY COURT OF THE
UNITED STATES, CLAIMS FOR PERSONAL INJURIES TO EMPLOYEES OF A RAILROAD
CORPORATION ...  SHALL BE PREFERRED AND PAID OUT OF THE ASSETS OF SUCH
RAILROAD CORPORATION AS OPERATING EXPENSES OF SUCH RAILROAD," HELD
APPLICABLE IN THIS CASE AND WITHIN THE POWER OF CONGRESS.  P. 27. 

3.  CLAIMS OF SUPERIOR EQUITIES MAY BE ACCORDED PRIORITY OF PAYMENT
FROM THE EARNINGS OF A RAILROAD IN AN EQUITY RECEIVERSHIP, ALTHOUGH
THEY AROSE PRIOR TO THE RECEIVERSHIP.  CONGRESS MAY DETERMINE
REASONABLE CLASSIFICATION OF CLAIMS AS ENTITLED TO PRIORITY BECAUSE OF
SUPERIOR EQUITIES IN RECEIVERSHIP CASES IN THE FEDERAL COURTS.  P. 27. 

4.  IN AN EQUITY RAILROAD RECEIVERSHIP CASE, WHERE THE DISTRICT COURT
DENIED A PETITION TO INTERVENE WITH A CLAIM OF PRIORITY OF PAYMENT FOR
A JUDGMENT FOR PERSONAL INJURIES RECOVERED BEFORE THE EQUITY PROCEEDING
WAS BEGUN, HELD THAT, INASMUCH AS THE ACT OF AUG. 11, 1939, SUPRA, IS
EXPLICIT AND MANDATORY AND AS THE DISTRICT COURT HAS NO DISCRETION TO
ACT CONTRARY TO ITS TERMS, THERE IS NO OCCASION TO REMAND TO THAT COURT
IN ORDER THAT IT MAY RECONSIDER THE CLAIM UNDER THAT ACT AND DECIDE
WHETHER THE INTERVENTION SHOULD BE ALLOWED AT THE STAGE REACHED BY THE
PROCEEDINGS; BUT THAT THE COURT SHOULD BE DIRECTED TO ALLOW THE CLAIM
IN ACCORDANCE WITH THE STATUTE.  P. 29. 

CARPENTER V. WABASH RAILWAY CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 308 U.S. 539, TO REVIEW AFFIRMANCE OF A JUDGMENT OF THE
DISTRICT COURT WHICH DENIED A PETITION TO INTERVENE IN A RAILROAD
RECEIVERSHIP CASE.  THE REVIEW HERE WAS LIMITED TO THE RIGHT OF THE
PETITIONER TO INTERVENE IN ORDER TO ASSERT PRIORITY OF A CLAIM BASED ON
PERSONAL INJURIES. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

IN FEBRUARY, 1931, PETITIONER RECOVERED A JUDGMENT IN THE STATE COURT
OF MISSOURI FOR $15,000 AGAINST THE WABASH RAILWAY COMPANY FOR PERSONAL
INJURIES SUSTAINED IN THE COURSE OF HIS EMPLOYMENT BY THAT COMPANY.  ON
APPEAL, THE JUDGMENT REDUCED TO $10,000 WAS AFFIRMED. 

IN DECEMBER, 1931, ON A COMPLAINT IN EQUITY BROUGHT BY A CREDITOR OF
THE WABASH RAILWAY COMPANY IN THE FEDERAL COURT IN MISSOURI, SETTING
FORTH ITS FINANCIAL DIFFICULTIES AND THAT ITS UNDISPUTED LIABILITIES
EXCEEDED THE ACTUAL VALUE OF ITS ASSETS, RECEIVERS WERE APPOINTED. 
SUITS BROUGHT BY MORTGAGE TRUSTEES WERE CONSOLIDATED WITH THE FIRST
SUIT.  A SPECIAL MASTER WAS APPOINTED TO TAKE PROOF OF CLAIMS AND IT
APPEARS THAT IN JANUARY, 1936, THE MASTER ALLOWED PETITIONER'S CLAIM AS
AN UNSECURED CLAIM WITHOUT LIEN OR PRIORITY. 

IN JANUARY, 1938, PETITIONER ASKED LEAVE TO FILE A PETITION SEEKING
TERMINATION OF THE RECEIVERSHIP ON VARIOUS GROUNDS NOT IMPORTANT HERE. 
AMONG OTHER THINGS, PETITIONER THEN ALLEGED THAT THE MASTER'S RULING
WAS ERRONEOUS AND THAT THE CLAIM WAS ENTITLED TO PRIORITY.  IN DENYING
THAT PETITION, THE DISTRICT COURT CONSIDERED THIS CONTENTION AND HELD
THAT THE "STATUS AND CLASSIFICATION OF PETITIONER'S CLAIM AS AN
UNSECURED CLAIM WHICH IS NOT ENTITLED TO ANY LIEN OR PRIORITY OF
PAYMENT OVER ANY OTHER UNSECURED CLAIM" HAD BEEN "CORRECTLY AND FINALLY
DETERMINED IN THIS CAUSE" AND THAT PETITIONER WAS "ESTOPPED FROM
ASSERTING A CLAIM FOR PREFERENCE AND PRIORITY OF PAYMENT."  THE CIRCUIT
COURT OF APPEALS AFFIRMED THE DECREE OF THE DISTRICT COURT AND IN DOING
SO PASSED UPON THAT QUESTION.  THE COURT SAID THAT NO STATUTE OF
MISSOURI AND NO DECISIONS OF ITS COURTS HAD BEEN SHOWN WHICH PROVIDED
OR HELD THAT CLAIMS FOR PERSONAL INJURIES BY EMPLOYEES WERE ENTITLED TO
PRIORITY AS OPERATING EXPENSES.  CONSIDERING THE CONTENTION OF
PETITIONER THAT THE WABASH RAILWAY COMPANY WAS AN INDIANA CORPORATION
OPERATING IN THAT STATE AND IN OHIO AND THAT THE LAWS OF THOSE STATES
ACCORDED PRIORITY TO HIS CLAIM, THE COURT THOUGHT THAT, EVEN IF SO,
"THAT SITUATION CAN HAVE NO EFFECT UPON THE OPERATION AND EFFECT OF
THIS MISSOURI JUDGMENT."  THE COURT ALSO OBSERVED THAT WHILE BY
SUBSECTION (N) OF SEC. 77 OF THE BANKRUPTCY ACT CLAIMS FOR PERSONAL
INJURIES TO EMPLOYEES OF A RAILROAD CORPORATION ARE ENTITLED TO
PRIORITY, THAT PROVISION APPLIED EXPRESSLY TO PROCEEDINGS IN BANKRUPTCY
AND THE PRESENT CASE AT THIS STAGE IS AN EQUITY RECEIVERSHIP.  AND,
APART FROM THAT, THE COURT CONSIDERED PETITIONER FORECLOSED FROM
ASSERTING SUCH RIGHTS IN THIS SUIT, APPROVING THE RULING OF THE
DISTRICT COURT IN THAT RESPECT.  103 F.2D 996. 

PETITION FOR CERTIORARI WAS FILED ON JULY 26, 1939.  SUBSEQUENTLY, BY
ACT OF CONGRESS APPROVED AUGUST 11, 1939, 53 STAT. 1406, SUBSECTION (N)
OF SEC. 77 OF THE BANKRUPTCY ACT WAS AMENDED SO AS TO APPLY TO EQUITY
RECEIVERSHIPS AND THUS TO READ AS FOLLOWS: 

"IN PROCEEDINGS UNDER THIS SECTION, AND IN EQUITY RECEIVERSHIPS OF
RAILROAD CORPORATIONS NOW OR HEREAFTER PENDING IN ANY COURT OF THE
UNITED STATES, CLAIMS FOR PERSONAL INJURIES TO EMPLOYEES OF A RAILROAD
CORPORATION, CLAIMS OF PERSONAL REPRESENTATIVES OF DECEASED EMPLOYEES
OF A RAILROAD CORPORATION, ARISING UNDER STATE OR FEDERAL LAWS, AND
CLAIMS NOW OR HEREAFTER PAYABLE BY SURETIES UPON SUPERSEDEAS, APPEAL,
ATTACHMENT, OR GARNISHMENT BONDS, EXECUTED BY SURETIES WITHOUT
SECURITY, FOR AND IN ANY ACTION BROUGHT AGAINST SUCH RAILROAD
CORPORATION OR TRUSTEES APPOINTED PURSUANT TO THIS SECTION, SHALL BE
PREFERRED AND PAID OUT OF THE ASSETS OF SUCH RAILROAD CORPORATION AS
OPERATING EXPENSES OF SUCH RAILROAD." 

PETITIONER THEN PRESENTED A SUPPLEMENTAL BRIEF IN SUPPORT OF HIS
APPLICATION FOR CERTIORARI, DIRECTING OUR ATTENTION TO THIS STATUTE,
AND IN VIEW OF THE IMPORTANCE OF THE QUESTION RAISED BY THE AMENDMENT,
WE GRANTED CERTIORARI, LIMITED TO THE QUESTION OF THE RIGHT OF THE
PETITIONER TO INTERVENE IN ORDER TO ASSERT PRIORITY.  308 U.S. 539. 

FOR THE PRESENT PURPOSE, WE MAY ASSUME, WITHOUT DECIDING, THAT THE
DETERMINATION OF THE COURT BELOW WAS CORRECT UPON THE RECORD BEFORE IT
AND IN THE LIGHT OF THE LAW AS IT THEN STOOD.  BUT IT IS OUR DUTY TO
CONSIDER THE AMENDED STATUTE AND TO DECIDE THE QUESTION IN HARMONY WITH
ITS PROVISIONS, IF FOUND TO BE APPLICABLE.  THE CONTROLLING RULE WAS
THUS STATED BY CHIEF JUSTICE MARSHALL IN UNITED STATES V. SCHOONER
PEGGY, 1 CRANCH 103, 110: 

"IT IS IN THE GENERAL TRUE THAT THE PROVINCE OF AN APPELLATE COURT IS
ONLY TO INQUIRE WHETHER A JUDGMENT WHEN RENDERED WAS ERRONEOUS OR NOT. 
BUT IF, SUBSEQUENT TO THE JUDGMENT, AND BEFORE THE DECISION OF THE
APPELLATE COURT, A LAW INTERVENES AND POSITIVELY CHANGES THE RULE WHICH
GOVERNS, THE LAW MUST BE OBEYED, OR ITS OBLIGATION DENIED.  ...  IN
SUCH A CASE THE COURT MUST DECIDE ACCORDING TO EXISTING LAWS, AND IF IT
BE NECESSARY TO SET ASIDE A JUDGMENT, RIGHTFUL WHEN RENDERED, BUT WHICH
CANNOT BE AFFIRMED BUT IN VIOLATION OF LAW, THE JUDGMENT MUST BE SET
ASIDE." 

SEE, ALSO, DINSMORE V. SOUTHERN EXPRESS CO., 183 U.S. 115, 120;
CROZIER V. KRUPP, 224 U.S. 290, 302; GULF, C. & S.F. RY. CO. V. DENNIS,
224 U.S. 503, 506; WATTS, WATTS & CO. V. UNIONE AUSTRIACA, 248 U.S. 9,
21. 

WE ARE OF THE OPINION THAT THE AMENDED STATUTE IS APPLICABLE TO THIS
PROCEEDING.  THE STATUTE APPLIES TO "EQUITY RECEIVERSHIPS OF RAILROAD
CORPORATIONS NOW  ...  PENDING IN ANY COURT OF THE UNITED STATES." 
THIS IS SUCH A CASE.  THE STATUTE APPLIES TO "CLAIMS FOR PERSONAL
INJURIES TO EMPLOYEES OF A RAILROAD CORPORATION."  THIS IS SUCH A
CLAIM.  THE STATUTE SAYS THAT A CLAIM OF THAT SORT "SHALL BE PREFERRED
AND PAID OUT OF THE ASSETS OF SUCH RAILROAD CORPORATION AS OPERATING
EXPENSES OF SUCH RAILROAD."  THIS IS A DIRECT REQUIREMENT GOVERNING THE
ACTION OF THE COURT IN THIS CAUSE. 

WE HAVE NO DOUBT THAT CONGRESS HAS CONSTITUTIONAL POWER TO IMPOSE
THIS REQUIREMENT.  WE HAVE HELD THAT EARNINGS, WHILE A RAILROAD IS IN
POSSESSION OF THE COURT AND OPERATED BY ITS RECEIVERS, "ARE NOT
NECESSARILY AND EXCLUSIVELY THE PROPERTY OF THE MORTGAGEES" BUT ARE
SUBJECT TO THE PAYMENT OF CLAIMS WHICH HAVE SUPERIOR EQUITIES AS THESE
MAY BE FOUND TO EXIST.  FOSDICK V. SCHALL, 99 U.S. 235; HALE V. FROST,
99 U.S. 389, 392.  CLAIMS HAVING SUCH EQUITIES MAY BE ACCORDED PRIORITY
IN PAYMENT ALTHOUGH THEY AROSE PRIOR TO THE RECEIVERSHIP.  MILTENBERGER
V. LOGANSPORT RAILWAY CO., 106 U.S. 286; BURNHAM V. BOWEN, 111 U.S.
776; UNION TRUST CO. V. ILLINOIS MIDLAND RY. CO., 117 U.S. 434.  IT IS
MANIFEST THAT THE REASONABLE CLASSIFICATION OF CLAIMS AS ENTITLED TO
PRIORITY BECAUSE OF SUPERIOR EQUITIES MAY BE THE SUBJECT OF
DETERMINATION BY CONGRESS IN PROVIDING FOR THE DISTRIBUTION OF ASSETS
IN BANKRUPTCY PROCEEDINGS.  SEE KUEHNER V. IRVING TRUST CO., 299 U.S.
445, 451, 452.  IN THIS VIEW, THE PROVISION OF SUBSECTION (N) OF SEC.
77 OF THE BANKRUPTCY ACT, AS IT STOOD PRIOR TO THE AMENDMENT OF AUGUST
11, 1939, WAS SUSTAINED BY THE CIRCUIT COURT OF APPEALS OF THE SEVENTH
CIRCUIT IN WISE V. CHICAGO, R.I. & P. RY. CO. (90 F.2D 312) WITH
RESPECT TO CERTAIN UNSECURED SURETY BONDS, AND BY THE CIRCUIT COURT OF
APPEALS OF THE EIGHTH CIRCUIT WITH RESPECT TO CLAIMS FOR INJURIES TO
RAILROAD EMPLOYEES.  CENTRAL HANOVER BANK & TRUST CO. V. WILLIAMS, 95
F.2D 210; THOMPSON V. SIRATT, 95 F.2D 214. 

WE SEE NO GROUND FOR A DIFFERENT CONCLUSION WITH RESPECT TO THE POWER
OF CONGRESS TO ENACT THE AMENDMENT IN RELATION TO THE DISTRIBUTION OF
ASSETS IN THE CASE OF AN EQUITY RECEIVERSHIP.  AND THE FACT THAT THE
PROVISION AS TO THE LATTER IS INCLUDED IN A SECTION OF THE BANKRUPTCY
STATUTE DOES NOT DEROGATE FROM ITS CONTROLLING AUTHORITY AS AN
EXPRESSION OF THE WILL OF CONGRESS.  THE CIRCUIT COURT OF APPEALS OF
THE EIGHTH CIRCUIT HAS RECENTLY HELD THIS PROVISION AS TO EQUITY
RECEIVERSHIPS TO BE APPLICABLE AND VALID IN RELATION TO CLAIMS FOR
PERSONAL INJURIES SUSTAINED BY EMPLOYEES OF THIS RAILROAD CORPORATION. 
AMERICAN SURETY CO. V. WABASH RAILWAY CO., 107 F.2D 685.  WE THINK THE
CONCLUSION IS SOUND. 

IT IS URGED IN OPPOSITION TO PETITIONER'S CONTENTION THAT UNLESS AND
UNTIL THE DISTRICT COURT UPON PROPER APPLICATION HAS PASSED UPON THE
QUESTION AS TO EXTENDING THE TIME FOR FILING PETITIONER'S CLAIM UNDER
THE AMENDED STATUTE, THE QUESTION OF ITS PRIORITY IS NOT PROPERLY
BEFORE THIS COURT; THAT PETITIONER HAS NOT ASKED THE DISTRICT COURT TO
PASS UPON THAT QUESTION IN THE LIGHT OF THE AMENDED STATUTE.  BUT WHEN
THE ACT OF AUGUST 11, 1939, WAS PASSED, THE CASE WAS BEFORE THIS COURT
UPON PETITION FOR CERTIORARI, WHICH HAS BEEN GRANTED, AND IN ORDER
PROPERLY TO DISPOSE OF THE CASE WE ARE BOUND, AS ALREADY STATED, TO
CONSIDER AND APPLY THE AMENDED STATUTE.  THEN, THE ARGUMENT IS PRESSED
THAT, AT LEAST, WE SHOULD REMAND THE CASE TO THE DISTRICT COURT IN
ORDER THAT IT MAY DETERMINE WHETHER THE CLAIM FOR PREFERENCE AND
PAYMENT UNDER THE AMENDMENT SHOULD BE ENTERTAINED.  IT IS SAID THAT
SUCH APPLICATIONS MAY BE CONSIDERED IN THE LIGHT OF EXISTING
CIRCUMSTANCES, OR OF THE STAGE WHICH THE PROCEEDINGS HAVE REACHED, AS,
FOR EXAMPLE, IN RELATION TO STEPS WHICH MAY HAVE BEEN TAKEN IN CARRYING
OUT PLANS FOR REORGANIZATION. 

WE FIND NO PROVISION IN THE STATUTE FOR THE EXERCISE OF SUCH A
DISCRETION BY THE DISTRICT COURT WHERE THE PROCEEDINGS TO WHICH THE
STATUTE REFERS ARE PENDING AND THE CLAIMS ARE WITHIN THE STATUTE. 
THERE IS NO SUGGESTION THAT THE PRESENT PROCEEDING HAD BEEN TERMINATED
PRIOR TO THE ENACTMENT OF THE AMENDMENT OR THAT IT IS NOT NOW PENDING. 
THE STATUTE IS EXPLICIT AND MANDATORY AND THE DISTRICT COURT HAS NO
DISCRETION TO ACT CONTRARY TO ITS TERMS.  THE STATUTE SAYS THAT THE
DESCRIBED CLAIMS "SHALL BE PREFERRED AND PAID OUT OF THE ASSETS OF SUCH
RAILROAD CORPORATION AS OPERATING EXPENSES OF SUCH RAILROAD." 
PETITIONER'S CLAIM IS WITHIN THE CLASS DESCRIBED AND SHOULD BE
PREFERRED AND PAID ACCORDINGLY. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS VACATED AND THE CAUSE
IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO ALLOW PETITIONER'S
CLAIM IN ACCORDANCE WITH THE STATUTORY PROVISION.  JUDGMENT VACATED. 
..END :
















BELL TEL. CO. V. UTILITY COMM'N, 309 U.S. 30 


NO. 252.  ARGUED JANUARY 10, 1940.  - DECIDED JANUARY 29, 1940. 


1.  WHEN THE SUPREME COURT OF PENNSYLVANIA HAS REFUSED APPEAL FROM AN
ORDER OF THE SUPERIOR COURT AFFIRMING A RATE ORDER OF THE PENNSYLVANIA
PUBLIC UTILITY COMMISSION, AN APPEAL TO THIS COURT IS FROM THE JUDGMENT
OF THE SUPERIOR COURT.  P. 31. 

2.  IN THE ABSENCE OF OTHER CONSTITUTIONAL OBJECTIONS, IT CAN NOT BE
SAID THAT A STATE COURT DENIES DUE PROCESS WHEN ON APPROPRIATE HEARING
IT DETERMINES THAT THERE IS EVIDENCE TO SUSTAIN A FINDING OF THE
VIOLATION OF STATE LAW WITH RESPECT TO THE CONDUCT OF LOCAL AFFAIRS. 
P. 32. 

3.  WHERE THERE IS NO CLAIM OF CONFISCATION, THE STATE AUTHORITY IS
COMPETENT TO ESTABLISH INTRASTATE TELEPHONE RATES AND IN SO DOING TO
DECIDE WHAT CONSTITUTES AN UNREASONABLE DISCRIMINATION WITH RESPECT TO
INTRASTATE TRAFFIC.  P. 32. 

BELL TELEPHONE COMPANY OF PENNSYLVANIA V. PENNSYLVANIA PUBLIC UTILITY
COMMISSION. 

APPEAL FROM THE SUPERIOR COURT OF PENNSYLVANIA.  APPEAL FROM 135 PA.
SUPER.  CT. 218; 5 A.2D 410, DISMISSED FOR WANT OF A SUBSTANTIAL
FEDERAL QUESTION. 

PER CURIAM. 

THE PENNSYLVANIA PUBLIC UTILITY COMMISSION, BY ORDER OF MARCH 15,
1938, REQUIRED APPELLANT, THE BELL TELEPHONE COMPANY OF PENNSYLVANIA,
TO REVISE ITS INTRASTATE TOLL RATES FOR DISTANCES EXCEEDING 36 MILES SO
AS TO CONFORM TO RATES CHARGED BY THE AMERICAN TELEPHONE & TELEGRAPH
COMPANY FOR COMPARABLE DISTANCES FOR INTERSTATE SERVICES.  THE
COMMISSION FOUND, AFTER FULL HEARING, THAT THE RATES CHARGED FOR LONG
DISTANCE SERVICE IN PENNSYLVANIA WERE HIGHER THAN THE INTERSTATE RATES
FOR THE SAME FACILITIES FOR A LIKE OR GREATER DISTANCE, AND CONSTITUTED
AN UNREASONABLE DISCRIMINATION AGAINST INTRASTATE PATRONS IN VIOLATION
OF SEC. 304 OF THE PUBLIC UTILITY LAW OF PENNSYLVANIA OF MAY 28, 1937,
P.L. 1053.  ON APPEAL, THE SUPERIOR COURT OF PENNSYLVANIA AFFIRMED THE
ORDER.  135 PA. SUPER.  CT. 218; 5 A.2D 410.  THE SUPREME COURT OF
PENNSYLVANIA REFUSED APPEAL.  THE CASE COMES HERE ON APPEAL FROM THE
JUDGMENT OF THE SUPERIOR COURT.  SEE PENNSYLVANIA RAILROAD CO. V.
PUBLIC SERVICE COMMISSION, 250 U.S. 566. 

APPELLANT EXPRESSLY DISCLAIMED BELOW, AND ALSO HERE, RAISING THE
QUESTION OF CONFISCATION.  ITS CONTENTIONS ARE (1) THAT THE
COMMISSION'S ORDER IS WHOLLY WITHOUT SUPPORT IN THE EVIDENCE AND THUS
CONSTITUTES A DENIAL OF DUE PROCESS CONTRARY TO THE FOURTEENTH
AMENDMENT; (2) THAT THE ORDER BASED ON DISCRIMINATION ONLY, AND
PRESCRIBING RATES NOT FOUND TO BE REASONABLE AND DEPRIVING APPELLANT OF
CONSIDERABLE REVENUE, IS ARBITRARY AND HENCE A DENIAL OF DUE PROCESS;
AND (3) THAT THE ORDER IS A REGULATION OF INTERSTATE RATES AND IMPOSES
A DIRECT BURDEN UPON INTERSTATE COMMERCE. 

AS TO THE FIRST CONTENTION, IT APPEARS THAT THE STATE COURT HEARD THE
APPEAL JUDICIALLY AND DECIDED THAT THERE WAS EVIDENCE JUSTIFYING THE
FINDING OF THE COMMISSION OF UNREASONABLE DISCRIMINATION IN THE
TRANSACTION OF ITS INTRASTATE BUSINESS.  IN THE ABSENCE OF OTHER
CONSTITUTIONAL OBJECTIONS, IT CANNOT BE SAID THAT A STATE COURT DENIES
DUE PROCESS WHEN ON APPROPRIATE HEARING IT DETERMINES THAT THERE IS
EVIDENCE TO SUSTAIN A FINDING OF THE VIOLATION OF STATE LAW WITH
RESPECT TO THE CONDUCT OF LOCAL AFFAIRS.  THE CONTENTION THAT SUCH A
DECISION IS ERRONEOUS DOES NOT PRESENT A FEDERAL QUESTION.  ARROWSMITH
V. HARMONING, 11, U.S. 194, 196; BONNER V. GORMAN, 213 U.S. 86, 91;
AMERICAN RAILWAY EXPRESS CO. V. KENTUCKY, 273 U.S. 260, 273. 

AS TO THE SECOND CONTENTION, WHERE THERE IS NO CLAIM OF CONFISCATION,
THE STATE AUTHORITY IS COMPETENT TO ESTABLISH INTRASTATE RATES AND IN
SO DOING TO DECIDE WHAT CONSTITUTES AN UNREASONABLE DISCRIMINATION WITH
RESPECT TO INTRASTATE TRAFFIC.  SEE STONE V. FARMERS' LOAN & TRUST CO.,
116 U.S. 307, 325; PORTLAND RAILWAY, L. & P. CO. V. RAILROAD
COMMISSION, 229 U.S. 397, 410; LOS ANGELES GAS CO. V. RAILROAD
COMMISSION, 289 U.S. 287, 304, 305; WEST OHIO GAS CO. V. PUBLIC
UTILITIES COMMISSION, 294 U.S. 63, 70. 

FINALLY, IT APPEARS THAT THE COMMISSION'S ORDER RELATED EXCLUSIVELY
TO INTRASTATE TRAFFIC AND THAT THERE WAS NO ATTEMPT TO REGULATE
INTERSTATE RATES. 

THE APPEAL IS DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION. 
DISMISSED. 
..END :













MCGOLDRICK V. BERWIND-WHITE CO., 309 U.S. 33 


NO. 475.  ARGUED JANUARY 2, 1940.  - DECIDED JANUARY 29, 1940.  - 281
N.Y. 610, 670 - 22 N.E.2D 173, 764, REVERSED. 


1.  BY CONTRACTS OF SALE MADE, THROUGH A SALES OFFICE IN THE CITY OF
NEW YORK, WITH PUBLIC UTILITY AND STEAMSHIP COMPANIES IN THAT CITY, A
PENNSYLVANIA CORPORATION AGREED TO SELL AND DELIVER TO THEM LARGE
QUANTITIES OF COAL OF SPECIFIED GRADES (SAID TO POSSESS UNIQUE
QUALITIES) PRODUCED AT ITS PENNSYLVANIA MINES.  THE COAL MOVED BY RAIL
TO JERSEY CITY AND THENCE BY BARGE TO THE CITY OF NEW YORK AND WAS
THERE DELIVERED TO THE PURCHASERS' PLANTS OR STEAMSHIPS.  HELD, THAT
THE IMPOSITION OF A TAX BY NEW YORK CITY ON THE PURCHASERS OF THE COAL,
MEASURED BY THE SALES PRICE, AND THE REQUIREMENT THAT THE TAX BE
COLLECTED BY THE SELLER, DO NOT INFRINGE THE COMMERCE CLAUSE OF THE
FEDERAL CONSTITUTION.  PP. 42 ET SEQ. 

THE TAX IS 2% OF THE RECEIPTS UPON EVERY SALE, FOR CONSUMPTION, OF
TANGIBLE PERSONAL PROPERTY IN THE CITY, "SALE" BEING DEFINED AS "ANY
TRANSFER OF TITLE OR POSSESSION OR BOTH  ...  IN ANY MANNER OR BY ANY
MEANS WHATSOEVER FOR A CONSIDERATION OR ANY AGREEMENT THEREFOR."  THE
TAX IS UPON THE BUYER, THE SELLER BEING LIABLE ONLY IF HE FAILS TO
COLLECT AND PAY OVER.  IT IS CONDITIONED UPON TRANSFER OF TITLE OR
POSSESSION OR AN AGREEMENT THEREFOR, CONSUMMATED IN THE STATE. 

2.  CONSIDERING THE NECESSITY OF RECONCILING THE COMPETING
CONSTITUTIONAL DEMANDS, THAT COMMERCE BETWEEN THE STATES SHALL NOT BE
UNDULY IMPEDED BY STATE ACTION, AND THAT THE POWER TO LAY TAXES FOR THE
SUPPORT OF STATE GOVERNMENT SHALL NOT BE UNDULY CURTAILED, THE COURT
FINDS NO ADEQUATE GROUND FOR SAYING THAT THIS TAX IS A REGULATION
WHICH, IN THE ABSENCE OF CONGRESSIONAL ACTION, THE COMMERCE CLAUSE
FORBIDS.  P. 49. 

3.  THE TAX AS HERE APPLIED IS NOT OPEN TO THE OBJECTIONS THAT IT IS
AIMED AT OR DISCRIMINATES AGAINST INTERSTATE COMMERCE, OR THAT IT IS
LAID UPON THE PRIVILEGE OF INTERSTATE COMMERCE, OR THAT IT IS A TAX
UPON INTERSTATE TRANSPORTATION OR ITS GROSS EARNINGS, OR UPON
MERCHANDISE IN THE COURSE OF AN INTERSTATE JOURNEY.  P. 48. 

THE ONLY RELATION OF THE TAX TO INTERSTATE COMMERCE ARISES FROM THE
FACT THAT, IMMEDIATELY PRECEDING TRANSFER OF POSSESSION TO THE
PURCHASER WITHIN THE STATE, THE MERCHANDISE HAS BEEN TRANSPORTED IN
INTERSTATE COMMERCE.  IN ITS EFFECT UPON INTERSTATE COMMERCE IT DOES
NOT DIFFER FROM TAXES ON THE "USE" OF PROPERTY WHICH HAS JUST BEEN
MOVED IN INTERSTATE COMMERCE, OR ON STORAGE OR WITHDRAWAL FOR USE, OR A
PROPERTY TAX ON GOODS AFTER ARRIVAL. 

4.  THERE IS NO VALID DISTINCTION IN THIS RELATIONSHIP BETWEEN A TAX
ON PROPERTY - THE SUM OF ALL THE RIGHTS AND POWERS INCIDENT TO
OWNERSHIP - AND A TAX ON THE EXERCISE OF SOME OF ITS CONSTITUENT
ELEMENTS.  P. 52. 

5.  THE BURDEN AND EFFECT OF THE TAX ARE NO GREATER WHEN THE PURCHASE
ORDER OR CONTRACT PRECEDES THAN WHEN IT FOLLOWS THE INTERSTATE
SHIPMENT.  P. 54. 

6.  ROBBINS V. SHELBY COUNTY TAXING DISTRICT, 120 U.S. 489, HAS BEEN
NARROWLY LIMITED TO FIXED-SUM LICENSE TAXES IMPOSED ONLY ON THE
BUSINESS OF SOLICITING ORDERS FOR THE PURCHASE OF GOODS TO BE SHIPPED
INTERSTATE.  P. 57. 

7.  THE TAX BEING CONDITIONED UPON A LOCAL ACTIVITY - DELIVERY OF
GOODS WITHIN THE STATE UPON THEIR PURCHASE FOR CONSUMPTION - IS NOT
SUBJECT TO THE OBJECTION APPLICABLE TO A TAX ON GROSS RECEIPTS FROM
INTERSTATE COMMERCE, WHICH EXACTS TRIBUTE FOR THE COMMERCE CARRIED ON
BOTH WITHIN AND WITHOUT THE STATE.  ADAMS MANUFACTURING CO. V. STOREN,
304 U.S. 307, DISTINGUISHED.  P. 57. 

8.  THE QUESTION WHETHER THE TAXING STATUTE IS INTENDED TO APPLY
WHERE CONTRACTS FOR PURCHASE MADE IN NEW YORK CITY CALL FOR DELIVERY
OUTSIDE OF THE STATE IS A QUESTION FOR THE STATE COURT.  P. 58. 

MCGOLDRICK, COMPTROLLER OF THE CITY OF NEW YORK, V. BERWIND-WHITE COAL
MINING CO. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 308 U.S. 546, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
SUSTAINING A SALES TAX ASSESSED BY THE COMPTROLLER OF THE CITY OF NEW
YORK. 

FROM WHATEVER ANGLE THE PROBLEM IS APPROACHED, THE BURDEN AND EFFECT
OF THE TAX ARE THE SAME, WHETHER IMPOSED UPON A SALE OF GOODS PRODUCED
OR STORED WITHIN OR WITHOUT THE STATE. 

IF WE ARE CORRECT IN THAT ANALYSIS, THE TAX MUST BE SUSTAINED, FOR IF
ITS EFFECT ON INTERSTATE COMMERCE IS IDENTICAL WITH ITS EFFECT UPON
LOCAL COMMERCE, IT CAN NOT VIOLATE THE COMMERCE CLAUSE. 

A STATE TAXING STATUTE CAN BE INVALIDATED UNDER THE COMMERCE CLAUSE
ONLY IF IT SUBJECTS INTERSTATE COMMERCE TO SUCH A BURDEN AS IS
TANTAMOUNT TO AN INTERFERENCE WITH THE POWER OF CONGRESS TO REGULATE
COMMERCE AMONG THE SEVERAL STATES.  GIBBONS V. OGDEN, 9 WHEAT.  1. 
WHETHER IT DOES INTERFERE WITH INTERSTATE COMMERCE IS A QUESTION OF
FACT.  HUMP HAIRPIN CO. V. EMMERSON, 258 U.S. 290, 295; KANSAS CITY RY.
CO. V. KANSAS, 240 U.S. 227, 233. 

THE GOODS BROUGHT IN BY THE "STRANGER FROM AFAR" STAND UPON EXACTLY
THE SAME FOOTING, SO FAR AS THIS TAX IS CONCERNED, AS THOSE OF THE
LOCAL MERCHANT.  TRUE, HE MAY HAVE BEEN TAXED BY HIS HOME STATE OR EVEN
BY THE VARIOUS STATES WHICH HE TRAVERSED ON HIS WAY TO THE MARKET. 
BUT, UNDER THE RULINGS OF THIS COURT HE CAN HAVE BEEN SUBJECTED ONLY TO
SUCH TAXES AS WERE EITHER IMPOSED UPON LOCAL EVENTS IN THE OTHER
STATES, OR APPORTIONED ACCORDING TO THE PROPORTION OF HIS BUSINESS DONE
IN SUCH STATES. 

WHAT DIFFERENCE DOES IT MAKE WHETHER THE MERCHANT BRINGS THE ACTUAL
GOODS TO THE MARKET PLACE WITH HIM, OR WHETHER HE SELLS FROM SAMPLES? 
THE PURCHASER WILL NOT BE INFLUENCED BY THE QUESTION OF WHERE THE
WAREHOUSE, FACTORY OR MINE MAY BE LOCATED.  EVEN THOUGH HE MAY INSIST
UPON THE PRODUCT OF A PARTICULAR NAMED FACTORY OR MINE, IT IS
IMMATERIAL WHETHER THAT FACTORY OR MINE IS LOCATED IN UPSTATE NEW YORK
OR IN PENNSYLVANIA.  HIS SOLE CONCERN IS TO GET THE PARTICULAR PRODUCT
WHICH HE WANTS, AT THE LOWEST PRICE. 

ON THE OTHER HAND, IF THE TAX AT BAR IS HELD VOID, THE EFFECT UPON
COMMERCE BECOMES IMMEDIATELY APPARENT.  NO LOCAL MERCHANT WILL MAKE ANY
SALES AT ALL IF SIMILAR GOODS ARE OFFERED BY HIS COMPETITORS FROM OTHER
STATES; FOR EVERY PURCHASER WILL PASS HIM BY TO SEEK THE VENDOR WHOSE
GOODS ARE FREE FROM TAX. 

SUCH A RESULT IS REPUGNANT TO EVERY PRINCIPLE OF EQUALITY BETWEEN THE
CITIZENS OF THE SEVERAL STATES INHERENT IN OUR FEDERAL SYSTEM. 

THE PRESENT TAX IS INDISTINGUISHABLE FROM THE "USE TAX," RECENTLY
SUSTAINED BY THIS COURT.  FELT & TARRANT MFG. CO. V. GALLAGHER, 306
U.S. 62; SOUTHERN PACIFIC CO. V. GALLAGHER, 306 U.S. 167; PACIFIC TEL.
& TEL. CO. V. GALLAGHER, 306 U.S. 182. 

A TAX IMPOSED UPON A LOCAL ACTIVITY, OR IMPOSED ON AN INTERSTATE
TRANSACTION BEFORE THE INTERSTATE MOVEMENT HAS COMMENCED OR AFTER IT
HAS COME TO REST, IS VALID BECAUSE IT CAN NOT BE IMPOSED IN MORE THAN
ONE STATE.  AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459; WESTERN LIVE
STOCK V. BUREAU, 303 U.S. 250; COVERDALE V. PIPE LINE CO., 303 U.S.
604; GREGG DYEING CO. V. QUERY, 286 U.S. 472. 

THE TAX HERE IS UPON THE TRANSFER OF POSSESSION FOR USE OR
CONSUMPTION, A LOCAL EVENT WHICH CAN TAKE PLACE IN ONLY A SINGLE
STATE.  IT IS IMPOSED NOT UPON THE SELLER BUT UPON LOCAL BUYERS, WHO
CAN NOT BE TAXED IN ANY OTHER STATE.  WILOIL CORP. V. PENNSYLVANIA, 294
U.S. 169; UTAH POWER CO. V. PFOST, 286 U.S. 165; COVERDALE CASE,
SUPRA. 

THE IMPOSITION BY ANOTHER STATE OF A TAX ON THE SELLER UPON THE SAME
TRANSACTION WOULD NOT IMPOSE A BURDEN OF MULTIPLE TAXATION MERELY
BECAUSE THE COMMERCE IS BEING DONE, SINCE SUCH A TAX COULD ALSO BE
IMPOSED UPON LOCAL SELLERS.  AMERICAN MFG. CO. V. ST. LOUIS, SUPRA;
GREGG DYEING CO. V. QUERY, SUPRA; NASHVILLE, C. & ST. L. RY. V.
WALLACE, 288 U.S. 249; ADAMS MFG. CO. V. STOREN, 304 U.S. 307; GWIN,
WHITE & PRINCE V. HENNEFORD, 305 U.S. 434. 

PRACTICAL, SOCIAL AND ECONOMIC CONSIDERATIONS REQUIRE THAT THE TAX AT
BAR BE SUSTAINED. 

IT MAY BE NOTED THAT NO TAXES HAVE BEEN IMPOSED BY OTHER STATES IN
CONNECTION WITH THE TRANSACTIONS INVOLVED IN THIS CASE.  CF. SOUTHERN
PACIFIC CO. V. GALLAGHER, 306 U.S. 167, 172. 

THE BURDEN OF THE IMAGINARY TAXES SUGGESTED BY RESPONDENT, IF THEY
ARE VALID IN THEIR OWN RIGHT, WOULD EXIST INDEPENDENTLY OF THE NEW YORK
TAX AND WOULD BE EQUALLY BORNE BY SIMILAR TRANSACTIONS OF LOCAL
ORIGIN.  IF NOT VALID IN THEIR OWN RIGHT, A DECISION SUSTAINING THE
PRESENT TAX WOULD NOT OPEN THE DOOR TO THEIR IMPOSITION. 

A TAX DIRECTED IN TERMS OR IN ITS PRACTICAL OPERATION AGAINST
INTERSTATE COMMERCE AS SUCH, THEREBY DISCRIMINATING IN FAVOR OF LOCAL
COMMERCE, IS INVALID.  WALLING V. MICHIGAN, 116 U.S. 446; WEBBER V.
VIRGINIA, 103 U.S. 344; WELTON V. MISSOURI, 91 U.S. 275; COOK V.
PENNSYLVANIA, 97 U.S. 566; BROWN V. MARYLAND, 12 WHEAT.  419. 

A TAX UPON INTERSTATE SALES, EVEN THOUGH LAID EQUALLY UPON LOCAL
SALES, VIOLATES THE COMMERCE CLAUSE IF IT IS MEASURED BY THE ENTIRE
GROSS RECEIPTS WITHOUT APPORTIONMENT TO THE ACTIVITIES CARRIED ON
WITHIN THE STATE; FOR IF THE TAX WERE UPHELD, EACH STATE INVOLVED IN
THE INTERSTATE MOVEMENT COULD WITH EQUAL RIGHT IMPOSE A TAX SIMILARLY
MEASURED UPON THE SAME TRANSACTIONS.  GWIN, WHITE & PRINCE, INC. V.
HENNEFORD, 305 U.S. 434; ADAMS MFG. CO. V. STOREN, 304 U.S. 307;
WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 255-6; FISHER'S
BLEND STATION V. STATE TAX COMMISSION, 297 U.S. 650; PHILADELPHIA &
SOUTHERN S.S. CO. V. PENNSYLVANIA, 122 U.S. 326; CASE OF THE STATE
FREIGHT TAX, 15 WALL.  232. 

ON THE OTHER HAND, A NONDISCRIMINATORY LOCAL TAX LAID UPON THE
OWNERSHIP OR THE USE OF PROPERTY PURCHASED IN INTERSTATE COMMERCE IS
VALID EVEN THOUGH MEASURED BY THE PURCHASE PRICE OF THE PROPERTY, SINCE
THE EVENTS OR ACTIVITIES UPON WHICH THE TAX IS IMPOSED ARE PURELY
LOCAL, OCCURRING AFTER INTERSTATE COMMERCE HAS COME TO AN END. 
SOUTHERN PACIFIC CO. V. GALLAGHER, 306 U.S. 167; FELT & TARRANT MFG.
CO. V. GALLAGHER, 306 U.S. 62; PACIFIC TELEPHONE & TELEGRAPH CO. V.
GALLAGHER, 306 U.S. 182; HENNEFORD V. SILAS MASON CO., 300 U.S. 577;
MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86.  SIMILARLY, A LOCAL TAX LAID
UPON AN EVENT OR ACTIVITY, SUCH AS MANUFACTURING OR STORAGE AND
WITHDRAWAL, COMPLETED WITHIN THE TAXING STATE BEFORE THE INTERSTATE
COMMERCE BEGINS, IS VALID THOUGH MEASURED BY THE SALE PRICE OF THE
PROPERTY.  AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459; EDELMAN V.
BOEING AIR TRANSPORT, INC., 289 U.S. 249; EASTERN AIR TRANSPORT, INC.
V. SOUTH CAROLINA TAX COMM'N, 285 U.S. 147. 

THE PROTECTION OF THE COMMERCE CLAUSE EXTENDS TO TRANSACTIONS IN
WHICH INTERSTATE SHIPMENT OF GOODS IS CONTEMPLATED AND REQUIRED.  WARE
& LELAND V. MOBILE COUNTY, 209 U.S. 405; BANKER BROS. CO. V.
PENNSYLVANIA, 294 U.S. 169; GRAYBAR ELECTRIC CO. V. CURRY, 308 U.S.
513, AFFIRMING, 189 SO. 186. 

THE SALES TAX HERE WAS HELD INVALID AS APPLIED TO INTERSTATE SALES BY
THE NEW YORK COURT OF APPEALS.  MATTER OF NATIONAL CASH REGISTER CO. V.
TAYLOR, 276 N.Y. 208; CERT. DEN.  303 U.S. 656; MATTER OF WEST
PUBLISHING CO. V. TAYLOR, 276 N.Y. 535; CERT. DEN.  303 U.S. 656.  THE
HIGHEST COURT OF MICHIGAN HAS FOLLOWED THE SAME PRINCIPLES.  MONTGOMERY
WARD & CO. V. FRY, 277 MICH. 260; 269 N.W. 166. 

IN THE CASE AT BAR DIRECT SHIPMENT FROM SELLER TO BUYER WAS
CONTEMPLATED AND REQUIRED.  EACH SALE WAS AN INTEGRATED WHOLE AND MAY
NOT BE BROKEN DOWN INTO A SUCCESSION OF LOCAL EVENTS IN AN EFFORT TO
DIVORCE EACH COMPONENT EVENT (HERE THE TRANSFER OF TITLE AND
POSSESSION, OR THE MAKING OF THE CONTRACT OF SALE) FROM THE INTERSTATE
TRANSACTION AND TO TREAT IT AS SOMETHING PURELY LOCAL AND SO OUTSIDE
THE SCOPE OF THE COMMERCE CLAUSE. 

THE MEASURE OF THE TAX IS THE ENTIRE GROSS RECEIPTS FROM THE SALES,
WITHOUT APPORTIONMENT TO ACTIVITIES OR EVENTS OCCURRING WITHIN THE
STATE OR CITY OF NEW YORK.  IF, AS WE MAINTAIN, THESE SALES (INCLUDING
AS THEIR INTEGRAL PARTS THE NEGOTIATION AND EXECUTION OF THE CONTRACTS,
THE TRANSPORTATION OF THE GOODS AND THE TRANSFER OF TITLE) ARE
INTERSTATE SALES AND FULLY WITHIN THE PROTECTION OF THE COMMERCE
CLAUSE, THEN THE FINAL QUESTION IS WHETHER THE MEASURE OF THE TAX IS
SUCH THAT WITHOUT THE PROTECTION OF THE COMMERCE CLAUSE THE
TRANSACTIONS WOULD BE SUBJECT TO THE RISK OF MULTIPLE TAX BURDENS, THE
AGGREGATE OF WHICH WOULD WORK A DISCRIMINATION AGAINST SUCH
TRANSACTIONS, AND MIGHT EVEN DESTROY THEM ENTIRELY.  WESTERN LIVE STOCK
V. BUREAU OF REVENUE, 303 U.S. 250, 255. 

THE TRANSACTIONS HERE INVOLVED CONSTITUTE A STEADY STREAM OF
BITUMINOUS COAL FLOWING DAILY IN LARGE QUANTITIES FROM THE NATURAL
SOURCE OF THE COAL AT THE SELLER'S MINES IN PENNSYLVANIA, THROUGH NEW
JERSEY TO THE SHIPS AND PLANTS OF THE BUYERS AT NEW YORK TIDEWATER. 
THE INTERSTATE CHARACTER OF THESE TRANSACTIONS, CARRIED ON IN THE SAME
MANNER WITHOUT VARIATION FOR OVER FORTY YEARS, WAS REQUIRED BY THE
PRACTICAL NECESSITIES OF THE BUSINESS, FROM THE STANDPOINT OF BOTH THE
BUYER AND THE SELLER, AND WAS AS FAR FROM A DEVICE FOR THE AVOIDANCE OF
TAXES AS ANYTHING COULD BE. 

THE PRESENT CASE IS ONE IN WHICH THE PURCHASER REQUIRES A SPECIAL
BRAND OF COAL, IN LARGE QUANTITIES, THE ONLY SOURCE OF WHICH IS THE
PRODUCER'S OWN MINES IN PENNSYLVANIA.  THE PRODUCER SELLS DIRECTLY TO
THE CONSUMERS IN CIRCUMSTANCES WHICH, AS A MATTER OF PRACTICAL
NECESSITY BOTH FROM THE STANDPOINT OF THE PRODUCING SELLER AND THE
PURCHASER, REQUIRE THE SHIPMENT OF THE COAL FROM THE SELLER'S MINES
DIRECTLY TO THE PURCHASER.  HERE THERE IS ONLY ONE TRANSACTION, NAMELY,
THE INTERSTATE SALE; THIS IS NOT A CASE OF A DEALER WHO BUYS OUTSIDE
THE STATE AND SELLS LOCALLY.  HERE THERE IS NOTHING ARTIFICIAL IN THE
INTERSTATE CHARACTER OF THE TRANSACTION; THE INTERSTATE CHARACTER OF
THE TRANSACTION IS THE ESSENCE OF IT.  CF. SUPERIOR OIL CO. V.
MISSISSIPPI, 280 U.S. 390. 

THE DELIVERY AND TRANSFER OF TITLE TO THE PURCHASER AT THE TERMINUS
CAN NOT BE DIVORCED FROM THE TRANSPORTATION AND TREATED AS A PURELY
LOCAL ACTIVITY, FOR IT IS PHYSICALLY A PART OF THE TRANSPORTATION OF
THE GOODS.  THE DELIVERIES WERE COMPLETE, AND TITLE PASSED TO THE
PURCHASERS ONLY WHEN RESPONDENT'S BARGES CAME ALONGSIDE THE PURCHASERS'
PLANTS OR STEAMSHIPS; UNLOADING WAS DONE BY THE PURCHASERS. 

THE UNLOADING IS AN INTEGRAL PART OF INTERSTATE COMMERCE AND WITHIN
THE PROTECTION OF THE COMMERCE CLAUSE.  PUGET SOUND STEVEDORING CO. V.
STATE TAX COMM'N, 302 U.S. 90. 

NEGOTIATION AND EXECUTION OF THE CONTRACT OF SALE ARE INDISPENSABLE
INCIDENTS OF THE INTERSTATE SALE, WITHIN THE PROTECTION OF THE COMMERCE
CLAUSE.  GWIN, WHITE & PRINCE, INC. V. HENNEFORD, 305 U.S. 434, 437;
REAL SILK HOSIERY MILLS V. PORTLAND, 268 U.S. 325; DAVIS V. VIRGINIA,
236 U.S. 697; REARICK V. PENNSYLVANIA, 203 U.S. 507; BRENNAN V.
TITUSVILLE, 153 U.S. 289; ROBBINS V. SHELBY COUNTY TAXING DISTRICT, 120
U.S. 489.  SEE ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 311. 

THE DOCTRINE THAT INTERSTATE TRANSACTIONS MUST BE RID OF THE DANGER
OF MULTIPLE BURDENS IMPOSED BY DIFFERENT STATES WOULD BE MEANINGLESS IF
IT WERE LIMITED IN ITS APPLICATION TO MULTIPLE TAXES UPON THE SAME
COMPONENT EVENT AND THE SAME PERSON.  THE DUE PROCESS CLAUSE PROHIBITS
ONE STATE FROM IMPOSING A TAX UPON AN EVENT WHICH OCCURS IN ANOTHER
STATE OR UPON A PERSON RESIDENT IN ANOTHER STATE; THE COMMERCE CLAUSE
IS NOT NECESSARY TO PROTECT THE TRANSACTIONS IN THAT RESPECT.  WHEN
THERE IS A DANGER THAT LOCAL TAXES MAY BE IMPOSED BY MORE THAN ONE
STATE UPON DIFFERENT PHASES OF AN INTEGRATED INTERSTATE TRANSACTION,
THEN THE FACT THAT SUCH TAXES WILL BECOME CUMULATIVE BURDENS UPON THE
TRANSACTION AND THUS CREATE TRADE BARRIERS BETWEEN THE STATES OR
DESTROY THE COMMERCE ENTIRELY MAKES IT ABSOLUTELY NECESSARY TO BRING
THE COMMERCE CLAUSE INTO PLAY. 

WHETHER THE TAX IS PAYABLE BY THE BUYER, OR THE SELLER, OR THE
CARRIER, OR THE STEVEDORE, IS UNIMPORTANT; THE ECONOMIC BURDEN UPON THE
TRANSACTION IS THE SAME, SINCE THE AMOUNT OF THE TAX WILL BE REFLECTED
EITHER IN AN INCREASED COST OF THE GOODS TO THE BUYER OR A DECREASED
PROFIT TO THE SELLER. 

THE BUSINESS IN WHICH THE PURCHASER IS ENGAGED IS IMMATERIAL, AS THIS
IS NOT A TAX UPON HIS BUSINESS BUT UPON AN INTERSTATE TRANSACTION IN
WHICH HE PARTICIPATES.  GWIN, WHITE & PRINCE, INC. V. HENNEFORD, 305
U.S. 434, 441; WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250,
260-1; FISHER'S BLEND STATION V. STATE TAX COMM'N, 297 U.S. 650. 

THE PRINCIPLE OF ADAMS MFG. CO. V. STOREN, 304 U.S. 307, AND GWIN,
WHITE & PRINCE, INC. V. HENNEFORD, 305 U.S. 434, IS THAT A TAX UPON
INTERSTATE TRANSACTIONS MAY NOT BE IMPOSED BY ANY STATE IF IT IS
MEASURED BY ENTIRE GROSS RECEIPTS, BUT MAY BE IMPOSED ONLY IF THE
MEASURE OF THE TAX IS A FAIR PROPORTION OF THE GROSS RECEIPTS ALLOCATED
TO THE ACTIVITIES CARRIED ON WITHIN THE STATE. 

THE USE TAX CASES ARE CLEARLY DISTINGUISHABLE.  THE DIFFERENCE IS ONE
OF SUBSTANCE, A DIFFERENCE IN THE CHOICE OF THE THING TAXED.  SOUTHERN
PACIFIC CO. V. GALLAGHER, 306 U.S. 167, 177. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT.    THE QUESTION
FOR DECISION IS WHETHER THE NEW YORK CITY TAX LAID UPON SALES OF GOODS
FOR CONSUMPTION, AS APPLIED TO RESPONDENT, INFRINGES THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION. 

UPON CERTIORARI TO REVIEW A DETERMINATION BY THE COMPTROLLER OF THE
CITY OF NEW YORK THAT RESPONDENT WAS SUBJECT TO NEW YORK CITY SALES TAX
IN THE SUM OF $176,703, THE APPELLATE DIVISION OF THE NEW YORK SUPREME
COURT HELD THAT THE TAXING STATUTE AS APPLIED TO RESPONDENT DOES SO
INFRINGE, 255 APP. DIV. 961; 8 N.Y.S.2D 668, ON THE AUTHORITY OF MATTER
OF NATIONAL CASH REGISTER CO. V. TAYLOR, 276 N.Y. 208; 11 N.E.2D 881,
CERT. DEN., 303 U.S. 656; MATTER OF COMPAGNIE GENERALE TRANSATLANTIQUE
V. MCGOLDRICK, 279 N.Y. 192; 18 N.E.2D 28.  THE NEW YORK COURT OF
APPEALS AFFIRMED WITHOUT OPINION, 281 N.Y. 610, BUT ITS AMENDED
REMITTITUR DECLARED THAT THE AFFIRMANCE WAS UPON THE SOLE GROUND THAT
THE TAXING STATUTE AS APPLIED VIOLATED THE COMMERCE CLAUSE, ID. 670. 
WE GRANTED CERTIORARI, 308 U.S. 546, THE QUESTION PRESENTED BEING OF
PUBLIC IMPORTANCE, UPON A PETITION WHICH CHALLENGED THE DECISION OF THE
STATE COURT AS NOT IN ACCORD WITH APPLICABLE DECISIONS OF THIS COURT IN
BANKER BROTHERS V. PENNSYLVANIA, 222 U.S. 210; WILOIL CORPORATION V.
PENNSYLVANIA, 294 U.S. 169. 

CHAPTER 815 OF THE NEW YORK LAWS OF 1933, AS AMENDED BY CHAPTER 873
OF THE NEW YORK LAWS OF 1934, AUTHORIZED THE CITY OF NEW YORK, FOR A
LIMITED PERIOD WITHIN WHICH THE PRESENT TAX WAS LAID, "TO ADOPT AND
AMEND LOCAL LAWS IMPOSING IN  ...  (THE) CITY ANY TAX  ...  WHICH THE
LEGISLATURE HAS OR WOULD HAVE POWER AND AUTHORITY TO IMPOSE."  IT
DIRECTED THAT "A TAX IMPOSED HEREUNDER SHALL HAVE APPLICATION ONLY
WITHIN THE TERRITORIAL LIMITS" OF THE CITY; AND THAT "THIS ACT SHALL
NOT AUTHORIZE THE IMPOSITION OF A TAX ON ANY TRANSACTION ORIGINATING
AND/OR CONSUMMATED OUTSIDE OF THE TERRITORIAL LIMITS OF  ...  (THE)
CITY, NOTWITHSTANDING THAT SOME ACT BE NECESSARILY PERFORMED WITH
RESPECT TO SUCH TRANSACTION WITHIN SUCH LIMITS."  IT REQUIRED THE
REVENUES FROM THE TAX TO BE USED EXCLUSIVELY FOR UNEMPLOYMENT RELIEF. 

PURSUANT TO THIS AUTHORITY THE MUNICIPAL ASSEMBLY OF THE CITY OF NEW
YORK ADOPTED LOCAL LAW NO. 24 OF 1934(PUBLISHED AS LOCAL LAW NO. 25),
SINCE ANNUALLY RENEWED, WHICH LAID A TAX UPON PURCHASERS FOR
CONSUMPTION OF TANGIBLE PERSONAL PROPERTY GENERALLY (EXCEPT FOODS AND
DRUGS FURNISHED ON PRESCRIPTION), OF UTILITY SERVICES IN SUPPLYING GAS,
ELECTRICITY, TELEPHONE SERVICE, ETC., AND OF MEALS CONSUMED IN
RESTAURANTS.  BY SEC. 2 THE TAX WAS FIXED AT "TWO PERCENTUM UPON THE
AMOUNT OF THE RECEIPTS FROM EVERY SALE IN THE CITY OF NEW YORK," "SALE"
BEING DEFINED BY SEC. 1(E) AS "ANY TRANSFER OF TITLE OR POSSESSION, OR
BOTH  ...  IN ANY MANNER OR BY ANY MEANS WHATSOEVER FOR A CONSIDERATION
OR ANY AGREEMENT THEREFOR."  ANOTHER CLAUSE OF SEC. 2  FN1 COMMANDS
THAT THE TAX "SHALL BE PAID BY THE PURCHASER TO THE VENDOR, FOR AND ON
ACCOUNT OF THE CITY OF NEW YORK."  BY THE SAME CLAUSE THE VENDOR, WHO
IS AUTHORIZED TO COLLECT THE TAX, IS REQUIRED TO CHARGE IT TO THE
PURCHASER, SEPARATELY FROM THE SALES PRICE; AND IS MADE LIABLE, AS AN
INSURER, FOR ITS PAYMENT TO THE CITY.  BY SECS. 4 AND 5 THE VENDOR IS
REQUIRED TO KEEP RECORDS AND FILE RETURNS SHOWING THE AMOUNT OF THE
RECEIPTS FROM SALES AND THE AMOUNT OF THE TAX.  IN EVENT OF ITS
NONPAYMENT TO THE SELLER THE BUYER IS REQUIRED, WITHIN FIFTEEN DAYS
AFTER HIS PURCHASE, TO FILE A TAX RETURN AND TO PAY THE TAX TO THE
COMPTROLLER, WHO IS AUTHORIZED BY SEC. 2 TO SET UP A PROCEDURE FOR THE
COLLECTION OF THE TAX FROM THE PURCHASER.  PURCHASES FOR RESALE ARE
EXEMPT FROM THE TAX, AND A PURCHASER WHO PAYS THE TAX AND LATER RESELLS
IS ENTITLED TO A REFUND. 

THE ULTIMATE BURDEN OF THE TAX, BOTH IN FORM AND IN SUBSTANCE, IS
THUS LAID UPON THE BUYER, FOR CONSUMPTION, OF TANGIBLE PERSONAL
PROPERTY, AND MEASURED BY THE SALES PRICE.  ONLY IN EVENT THAT THE
SELLER FAILS TO PAY OVER TO THE CITY THE TAX COLLECTED OR TO CHARGE AND
COLLECT IT AS THE STATUTE REQUIRES, IS THE BURDEN CAST ON HIM.  IT IS
CONDITIONED UPON EVENTS OCCURRING WITHIN THE STATE, EITHER TRANSFER OF
TITLE OR POSSESSION OF THE PURCHASED PROPERTY, OR AN AGREEMENT WITHIN
THE STATE, "CONSUMMATED" THERE, FOR THE TRANSFER OF TITLE, OR
POSSESSION.  THE DUTY OF COLLECTING THE TAX AND PAYING IT OVER TO THE
COMPTROLLER IS IMPOSED ON THE SELLER IN ADDITION TO THE DUTY IMPOSED
UPON THE BUYER TO PAY THE TAX TO THE COMPTROLLER WHEN NOT SO
COLLECTED.  SUCH, IN SUBSTANCE, HAS BEEN THE CONSTRUCTION OF THE
STATUTE BY THE STATE COURTS.  MATTER OF ATLAS TELEVISION CO., 273 N.Y.
51; 6 N.E.2D 94; MATTER OF MERCHANTS REFRIGERATING CO. V. TAYLOR, 275
N.Y. 113; 9 N.E.2D 799; MATTER OF KESBEC, INC. V. MCGOLDRICK, 278 N.Y.
293; 16 N.E.2D 288. 

RESPONDENT, A PENNSYLVANIA CORPORATION, IS ENGAGED IN THE PRODUCTION
OF COAL OF SPECIFIED GRADES, SAID TO POSSESS UNIQUE QUALITIES, FROM ITS
MINES WITHIN THAT STATE AND IN SELLING IT TO CONSUMERS AND DEALERS.  IT
MAINTAINS A SALES OFFICE IN NEW YORK CITY AND SELLS ANNUALLY TO ITS
CUSTOMERS 1,500,000 TONS OF ITS PRODUCT, OF WHICH APPROXIMATELY
1,300,000 TONS ARE DELIVERED BY RESPONDENT TO SOME TWENTY PUBLIC
UTILITY AND STEAMSHIP COMPANIES.  THE COAL MOVES BY RAIL FROM MINE TO
DOCK IN JERSEY CITY, THENCE IN MOST INSTANCES BY BARGE TO THE POINT OF
DELIVERY.  ALL THE SALES CONTRACTS WITH THE NEW YORK CUSTOMERS IN
QUESTION WERE ENTERED INTO IN NEW YORK CITY, AND WITH TWO EXCEPTIONS,
PRESENTLY TO BE CONSIDERED SEPARATELY, CALL FOR DELIVERY OF THE COAL BY
RESPONDENT BY BARGE, ALONGSIDE THE PURCHASERS' PLANTS OR STEAMSHIPS. 
IN MANY INSTANCES THE PRICE OF THE COAL WAS STATED TO BE SUBJECT TO ANY
INCREASE OR DECREASE OF MINING COSTS INCLUDING WAGES, AND OF RAILROAD
RATES BETWEEN THE MINES AND THE JERSEY CITY TERMINAL TO WHICH THE COAL
WAS TO BE SHIPPED.  ALL THE DELIVERIES, WITH THE EXCEPTIONS ALREADY
NOTED, WERE MADE WITHIN NEW YORK CITY, AND ALL SUCH ARE CONCEDEDLY
SUBJECT TO THE TAX EXCEPT INSOFAR AS IT INFRINGES THE COMMERCE CLAUSE. 

POWER  ...  TO REGULATE COMMERCE WITH FOREIGN NATIONS, AND AMONG THE
SEVERAL STATES.  ...  "  IN IMPOSING TAXES FOR STATE PURPOSES A STATE
IS NOT EXERCISING ANY POWER WHICH THE CONSTITUTION HAS CONFERRED UPON
CONGRESS.  IT IS ONLY WHEN THE TAX OPERATES TO REGULATE COMMERCE
BETWEEN THE STATES OR WITH FOREIGN NATIONS TO AN EXTENT WHICH INFRINGES
THE AUTHORITY CONFERRED UPON CONGRESS, THAT THE TAX CAN BE SAID TO
EXCEED CONSTITUTIONAL LIMITATIONS.  SEE GIBBONS V. OGDEN, 9 WHEAT.  1,
187; SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., 303 U.S. 177,
185.  FORMS OF STATE TAXATION WHOSE TENDENCY IS TO PROHIBIT THE
COMMERCE OR PLACE IT AT A DISADVANTAGE AS COMPARED OR IN COMPETITION
WITH INTRASTATE COMMERCE, AND ANY STATE TAX WHICH DISCRIMINATES AGAINST
THE COMMERCE, ARE FAMILIAR EXAMPLES OF THE EXERCISE OF STATE TAXING
POWER IN AN UNCONSTITUTIONAL MANNER, BECAUSE OF ITS OBVIOUS REGULATORY
EFFECT UPON COMMERCE BETWEEN THE STATES.  FN2 

BUT IT WAS NOT THE PURPOSE OF THE COMMERCE CLAUSE TO RELIEVE THOSE
ENGAGED IN INTERSTATE COMMERCE OF THEIR JUST SHARE OF STATE TAX
BURDENS, MERELY BECAUSE AN INCIDENTAL OR CONSEQUENTIAL EFFECT OF THE
TAX IS AN INCREASE IN THE COST OF DOING THE BUSINESS, WESTERN LIVE
STOCK V. BUREAU, 303 U.S. 250, 254.  NOT ALL STATE TAXATION IS TO BE
CONDEMNED BECAUSE, IN SOME MANNER, IT HAS AN EFFECT UPON COMMERCE
BETWEEN THE STATES, AND THERE ARE MANY FORMS OF TAX WHOSE BURDENS, WHEN
DISTRIBUTED THROUGH THE PLAY OF ECONOMIC FORCES, AFFECT INTERSTATE
COMMERCE, WHICH NEVERTHELESS FALL SHORT OF THE REGULATION OF THE
COMMERCE WHICH THE CONSTITUTION LEAVES TO CONGRESS.  A TAX MAY BE
LEVIED ON NET INCOME WHOLLY DERIVED FROM INTERSTATE COMMERCE.  FN3  NON
DISCRIMINATORY TAXATION OF THE INSTRUMENTALITIES OF INTERSTATE COMMERCE
IS NOT PROHIBITED.  FN4  THE LIKE TAXATION OF PROPERTY, SHIPPED
INTERSTATE, BEFORE ITS MOVEMENT BEGINS,  FN5  OR AFTER IT ENDS,  FN6
IS NOT A FORBIDDEN REGULATION.  AN EXCISE FOR THE WAREHOUSING OF
MERCHANDISE PREPARATORY TO ITS INTERSTATE SHIPMENT OR UPON ITS USE,
FN7  OR WITHDRAWAL FOR USE,  FN8  BY THE CONSIGNEE AFTER THE INTERSTATE
JOURNEY HAS ENDED IS NOT PRECLUDED.  NOR IS TAXATION OF A LOCAL
BUSINESS OR OCCUPATION WHICH IS SEPARATE AND DISTINCT FROM THE
TRANSPORTATION OR INTERCOURSE WHICH IS INTERSTATE COMMERCE, FORBIDDEN
MERELY BECAUSE IN THE ORDINARY COURSE SUCH TRANSPORTATION OR
INTERCOURSE IS INDUCED OR OCCASIONED BY SUCH BUSINESS, OR IS
PREREQUISITE TO IT.  WESTERN LIVE STOCK V. BUREAU, SUPRA, 253, AND
CASES CITED. 

IN FEW OF THESE CASES COULD IT BE SAID WITH ASSURANCE THAT THE LOCAL
TAX DOES NOT IN SOME MEASURE AFFECT THE COMMERCE OR INCREASE THE COST
OF DOING IT.  BUT IN THEM AS IN OTHER INSTANCES OF CONSTITUTIONAL
INTERPRETATION SO AS TO INSURE THE HARMONIOUS OPERATION OF POWERS
RESERVED TO THE STATES WITH THOSE CONFERRED UPON THE NATIONAL
GOVERNMENT, COURTS ARE CALLED UPON TO RECONCILE COMPETING
CONSTITUTIONAL DEMANDS, THAT COMMERCE BETWEEN THE STATES SHALL NOT BE
UNDULY IMPEDED BY STATE ACTION, AND THAT THE POWER TO LAY TAXES FOR THE
SUPPORT OF STATE GOVERNMENT SHALL NOT BE UNDULY CURTAILED.  SEE
WOODRUFF V. PARHAM, 8 WALL.  123, 131; BROWN V. HOUSTON, 114 U.S. 622;
GALVESTON, H. & S.A.R. CO. V. TEXAS, 210 U.S. 217, 225, 227; SOUTH
CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., SUPRA; FORD MOTOR CO. V.
BEAUCHAMP, 308 U.S. 331; CF. METCALF & EDDY V. MITCHELL, 269 U.S. 514,
523, ET SEQ.; BOARD OF COUNTY COMM'RS OF JACKSON COUNTY V. UNITED
STATES, 308 U.S. 343. 

CERTAIN TYPES OF TAX MAY, IF PERMITTED AT ALL, SO READILY BE MADE THE
INSTRUMENT OF IMPEDING OR DESTROYING INTERSTATE COMMERCE AS PLAINLY TO
CALL FOR THEIR CONDEMNATION AS FORBIDDEN REGULATIONS.  SUCH ARE THE
TAXES ALREADY NOTED WHICH ARE AIMED AT OR DISCRIMINATE AGAINST THE
COMMERCE OR IMPOSE A LEVY FOR THE PRIVILEGE OF DOING IT, OR TAX
INTERSTATE TRANSPORTATION OR COMMUNICATION OR THEIR GROSS EARNINGS, OR
LEVY AN EXACTION ON MERCHANDISE IN THE COURSE OF ITS INTERSTATE
JOURNEY.  EACH IMPOSES A BURDEN WHICH INTRASTATE COMMERCE DOES NOT
BEAR, AND MERELY BECAUSE INTERSTATE COMMERCE IS BEING DONE PLACES IT AT
A DISADVANTAGE IN COMPARISON WITH INTRASTATE BUSINESS OR PROPERTY IN
CIRCUMSTANCES SUCH THAT IF THE ASSERTED POWER TO TAX WERE SUSTAINED,
THE STATES WOULD BE LEFT FREE TO EXERT IT TO THE DETRIMENT OF THE
NATIONAL COMMERCE. 

THE PRESENT TAX AS APPLIED TO RESPONDENT IS WITHOUT THE POSSIBILITY
OF SUCH CONSEQUENCES.  EQUALITY IS ITS THEME, CF. HENNEFORD V. SILAS
MASON CO., 300 U.S. 577, 583.  IT DOES NOT AIM AT OR DISCRIMINATE
AGAINST INTERSTATE COMMERCE.  IT IS LAID UPON EVERY PURCHASER, WITHIN
THE STATE, OF GOODS FOR CONSUMPTION, REGARDLESS OF WHETHER THEY HAVE
BEEN TRANSPORTED IN INTERSTATE COMMERCE.  ITS ONLY RELATION TO THE
COMMERCE ARISES FROM THE FACT THAT IMMEDIATELY PRECEDING TRANSFER OF
POSSESSION TO THE PURCHASER WITHIN THE STATE, WHICH IS THE TAXABLE
EVENT REGARDLESS OF THE TIME AND PLACE OF PASSING TITLE, THE
MERCHANDISE HAS BEEN TRANSPORTED IN INTERSTATE COMMERCE AND BROUGHT TO
ITS JOURNEY'S END.  SUCH A TAX HAS NO DIFFERENT EFFECT UPON INTERSTATE
COMMERCE THAN A TAX ON THE "USE" OF PROPERTY WHICH HAS JUST BEEN MOVED
IN INTERSTATE COMMERCE, SUSTAINED IN MONAMOTOR OIL CO. V. JOHNSON, 292
U.S. 86; HENNEFORD V. SILAS MASON CO., SUPRA; FELT & TARRANT MFG. CO.
V. GALLAGHER, 306 U.S. 62; SOUTHERN PACIFIC CO. V. GALLAGHER, 306 U.S.
167, OR THE TAX ON STORAGE OR WITHDRAWAL FOR USE BY THE CONSIGNEE OF
GASOLINE, SIMILARLY SUSTAINED IN GREGG DYEING CO. V. QUERY, 286 U.S.
472; NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S. 249; EDELMAN
V. BOEING AIR TRANSPORT, 289 U.S. 249, OR THE FAMILIAR PROPERTY TAX ON
GOODS BY THE STATE OF DESTINATION AT THE CONCLUSION OF THEIR INTERSTATE
JOURNEY.  BROWN V. HOUSTON, SUPRA; AMERICAN STEEL & WIRE CO. V. SPEED,
192 U.S. 500. 

IF, AS GUIDES TO DECISION, WE LOOK TO THE PURPOSE OF THE COMMERCE
CLAUSE TO PROTECT INTERSTATE COMMERCE FROM DISCRIMINATORY OR
DESTRUCTIVE STATE ACTION, AND AT THE SAME TIME TO THE PURPOSE OF THE
STATE TAXING POWER UNDER WHICH INTERSTATE COMMERCE ADMITTEDLY MUST BEAR
ITS FAIR SHARE OF STATE TAX BURDENS, AND TO THE NECESSITY OF JUDICIAL
RECONCILIATION OF THESE COMPETING DEMANDS, WE CAN FIND NO ADEQUATE
GROUND FOR SAYING THAT THE PRESENT TAX IS A REGULATION WHICH, IN THE
ABSENCE OF CONGRESSIONAL ACTION, THE COMMERCE CLAUSE FORBIDS.  FN9
THIS COURT HAS UNIFORMLY SUSTAINED A TAX IMPOSED BY THE STATE OF THE
BUYER UPON A SALE OF GOODS, IN SEVERAL INSTANCES IN THE "ORIGINAL
PACKAGE," EFFECTED BY DELIVERY TO THE PURCHASER UPON ARRIVAL AT
DESTINATION AFTER AN INTERSTATE JOURNEY, BOTH WHEN THE LOCAL SELLER HAS
PURCHASED THE GOODS EXTRA-STATE FOR THE PURPOSE OF RESALE, WOODRUFF V.
PARHAM, SUPRA; HINSON V. LOTT, 8 WALL.  148; BANKER BROS. V.
PENNSYLVANIA, SUPRA; WILOIL CORP. V. PENNSYLVANIA, SUPRA; GRAYBAR
ELECTRIC CO. V. CURRY, 308 U.S. 513; 238 ALA. 116; 189 SO. 186, AND
WHEN THE EXTRA-STATE SELLER HAS SHIPPED THEM INTO THE TAXING STATE FOR
SALE THERE.  HINSON V. LOTT, SUPRA; SONNEBORN BROS. V. CURETON, 262
U.S. 506.  IT HAS LIKEWISE SUSTAINED A FIXED-SUM LICENSE TAX IMPOSED ON
THE AGENT OF THE INTERSTATE SELLER FOR THE PRIVILEGE OF SELLING
MERCHANDISE BROUGHT INTO THE TAXING STATE FOR THE PURPOSE OF SALE. 
HOWE MACHINE CO. V. GAGE, 100 U.S. 676; EMERT V. MISSOURI, 156 U.S.
296; KEHRER V. STEWART, 197 U.S. 60; BACCUS V. LOUISIANA, 232 U.S. 334;
WAGNER V. COVINGTON, 251 U.S. 95. 

THE ONLY CHALLENGE MADE TO THESE CONTROLLING AUTHORITIES IS BY
REFERENCE TO UNCONSTITUTIONAL "BURDENS" ON INTERSTATE COMMERCE MADE IN
GENERAL STATEMENTS WHICH ARE INAPPLICABLE HERE BECAUSE THEY ARE TORN
FROM THEIR SETTING IN JUDICIAL OPINIONS AND SPEAK OF STATE REGULATIONS
OR TAXES OF A DIFFERENT KIND LAID IN DIFFERENT CIRCUMSTANCES FROM THOSE
WITH WHICH WE ARE NOW CONCERNED.  SEE FOR EXAMPLE, GALVESTON, H. &
S.A.R. CO. V. TEXAS, SUPRA; COONEY V. MOUNTAIN STATES TELEPHONE CO.,
294 U.S. 384; FISHER'S BLEND STATION V. TAX COMMISSION, 297 U.S. 650. 
OTHERS WILL PRESENTLY BE DISCUSSED.  BUT UNLESS WE ARE NOW TO REJECT
THE PLAIN TEACHING OF THIS LINE OF SALES TAX DECISIONS, EXTENDING BACK
FOR MORE THAN SEVENTY YEARS FROM GRAYBAR ELECTRIC CO. V. CURRY, SUPRA,
DECIDED THIS TERM, TO WOODRUFF V. PARHAM, SUPRA, THE PRESENT TAX MUST
BE UPHELD.  AS WE HAVE SEEN, THE RULING OF THESE DECISIONS DOES NOT
REST ON PRECEDENT ALONE.  IT HAS THE SUPPORT OF REASON AND OF A DUE
REGARD FOR THE JUST BALANCE BETWEEN NATIONAL AND STATE POWER.  IN
SUSTAINING THESE TAXES ON SALES EMPHASIS WAS PLACED ON THE
CIRCUMSTANCES THAT THEY WERE NOT SO LAID, MEASURED OR CONDITIONED AS TO
AFFORD A MEANS OF OBSTRUCTION TO THE COMMERCE OR OF DISCRIMINATION
AGAINST IT, AND THAT THE EXTENSION OF THE IMMUNITY OF THE COMMERCE
CLAUSE CONTENDED FOR WOULD BE AT THE EXPENSE OF STATE TAXING POWER BY
WITHHOLDING FROM TAXATION PROPERTY AND TRANSACTIONS WITHIN THE STATE
WITHOUT THE GAIN OF ANY NEEDED PROTECTION TO INTERSTATE COMMERCE. 
WOODRUFF V. PARHAM, SUPRA, 137, 140; HINSON V. LOTT, SUPRA, 152;
SONNEBORN BROS. V. CURETON, SUPRA, 513, 514, 521; WILOIL CORP. V.
PENNSYLVANIA, SUPRA, 174; CF. BROWN V. HOUSTON, SUPRA; HENNEFORD V.
SILAS MASON CO., SUPRA, 583.  FN10 

APART FROM THESE MORE FUNDAMENTAL CONSIDERATIONS WHICH WE THINK ARE
OF CONTROLLING FORCE IN THE APPLICATION OF THE COMMERCE CLAUSE, WE CAN
FIND NO ADEQUATE BASIS FOR DISTINGUISHING THE PRESENT TAX LAID ON THE
SALE OR PURCHASE OF GOODS UPON THEIR ARRIVAL AT DESTINATION AT THE END
OF AN INTERSTATE JOURNEY FROM THE TAX WHICH MAY BE LAID IN LIKE FASHION
ON THE PROPERTY ITSELF.  THAT THE LATTER IS A PERMISSIBLE TAX HAS LONG
BEEN ESTABLISHED BY AN UNWAVERING LINE OF AUTHORITY.  BROWN V. HOUSTON,
SUPRA; COE V. ERROL, 116 U.S. 517; PITTSBURGH & SOUTHERN COAL CO. V.
BATES, 156 U.S. 577; AMERICAN STEEL & WIRE CO. V. SPEED, SUPRA, 520;
GENERAL OIL CO. V. CRAIN, 209 U.S. 211; BACON V. ILLINOIS, 227 U.S.
504.  AS WE HAVE OFTEN POINTED OUT, THERE IS NO DISTINCTION IN THIS
RELATIONSHIP BETWEEN A TAX ON PROPERTY, THE SUM OF ALL THE RIGHTS AND
POWERS INCIDENT TO OWNERSHIP, AND THE TAXATION OF THE EXERCISE OF SOME
OF ITS CONSTITUENT ELEMENTS.  NASHVILLE, C. & ST. L. RY. CO. V.
WALLACE, SUPRA, 267, 268; HENNEFORD V. SILAS MASON CO., SUPRA, 582; CF.
BROMLEY V. MCCAUGHN, 280 U.S. 124, 136-138.  IF COAL SITUATED AS THAT
IN THE PRESENT CASE WAS, BEFORE ITS DELIVERY, SUBJECT TO A STATE
PROPERTY TAX, SEE BROWN V. HOUSTON, SUPRA; PITTSBURGH & SOUTHERN COAL
CO. V. BATES, SUPRA, TRANSFER OF POSSESSION OF THE COAL UPON A SALE IS
EQUALLY TAXABLE, SEE WILOIL CORP. V. PENNSYLVANIA, SUPRA, 175, JUST AS
WAS THE STORAGE OR USE OF THE PROPERTY IN SIMILAR CIRCUMSTANCES HELD
TAXABLE IN NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, SUPRA; HENNEFORD
V. SILAS MASON CO., SUPRA. 

RESPONDENT, POINTING TO THE COURSE OF ITS BUSINESS AND TO ITS
CONTRACTS WHICH CONTEMPLATE THE SHIPMENT OF THE COAL INTERSTATE UPON
ORDERS OF THE NEW YORK CUSTOMERS, INSISTS THAT A DISTINCTION IS TO BE
TAKEN BETWEEN A TAX LAID ON SALES MADE, WITHOUT PREVIOUS CONTRACT,
AFTER THE MERCHANDISE HAS CROSSED THE STATE BOUNDARY, AND SALES, THE
CONTRACTS FOR WHICH WHEN MADE CONTEMPLATE OR REQUIRE THE TRANSPORTATION
OF MERCHANDISE INTERSTATE TO THE TAXING STATE.  ONLY THE SALES IN THE
STATE OF DESTINATION IN THE LATTER CLASS OF CASES, IT IS SAID, ARE
PROTECTED FROM TAXATION BY THE COMMERCE CLAUSE, A QUALIFICATION WHICH
RESPONDENT CONCEDES IS A SALUTARY LIMITATION UPON THE REACH OF THE
CLAUSE SINCE ITS USE IS THUS PRECLUDED AS A MEANS OF AVOIDING STATE
TAXATION OF MERCHANDISE TRANSPORTED TO THE STATE IN ADVANCE OF THE
PURCHASE ORDER OR CONTRACT OF SALE. 

BUT WE THINK THIS DISTINCTION IS WITHOUT THE SUPPORT OF REASON OR
AUTHORITY.  A VERY LARGE PART, IF NOT MOST OF THE MERCHANDISE SOLD IN
NEW YORK CITY, IS SHIPPED INTERSTATE TO THAT MARKET.  IN THE CASE OF
PRODUCTS LIKE COTTON, CITRUS FRUITS AND COAL, NOT TO MENTION MANY
OTHERS WHICH ARE CONSUMED THERE IN VAST QUANTITIES, ALL HAVE CROSSED
THE STATE LINE TO SEEK A MARKET, WHETHER IN FULFILLMENT OF A CONTRACT
OR NOT.  THAT IS EQUALLY THE CASE WITH OTHER GOODS SENT FROM WITHOUT
THE STATE TO THE NEW YORK MARKET, WHETHER THEY ARE BROUGHT INTO
COMPETITION WITH LIKE GOODS PRODUCED WITHIN THE STATE OR NOT.  WE ARE
UNABLE TO SAY THAT THE PRESENT TAX, LAID GENERALLY UPON ALL SALES TO
CONSUMERS WITHIN THE STATE, SUBJECTS THE COMMERCE INVOLVED WHERE THE
GOODS SOLD ARE BROUGHT FROM OTHER STATES, TO ANY GREATER BURDEN OR
AFFECTS IT MORE, IN ANY ECONOMIC OR PRACTICAL WAY, WHETHER THE PURCHASE
ORDER OR CONTRACT PRECEDES OR FOLLOWS THE INTERSTATE SHIPMENT.  SINCE
THE TAX APPLIES ONLY IF A SALE IS MADE, AND IN EITHER CASE THE OBJECT
OF INTERSTATE SHIPMENT IS A SALE AT DESTINATION, THE DETERRENT EFFECT
OF THE TAX WOULD SEEM TO BE THE SAME ON BOTH.  RESTRICTION OF THE SCOPE
OF THE COMMERCE CLAUSE SO AS TO PREVENT RECOURSE TO IT AS A MEANS OF
CURTAILING STATE TAXING POWER SEEMS AS SALUTARY IN THE ONE CASE AS IN
THE OTHER. 

TRUE, THE DISTINCTION HAS THE SUPPORT OF A STATEMENT OBITER IN
SONNEBORN BROS. V. CURETON, SUPRA, 515, AND SEEMS TO HAVE BEEN TACITLY
RECOGNIZED IN WARE & LELAND V. MOBILE COUNTY, 209 U.S. 405, 412, AND
BANKER BROS. CO. V. PENNSYLVANIA, SUPRA, ALTHOUGH IN EACH CASE A TAX ON
THE SALE OF GOODS BROUGHT INTO THE STATE FOR SALE WAS UPHELD.  BUT WE
HAVE SUSTAINED THE TAX WHERE THE COURSE OF BUSINESS AND THE AGREEMENT
FOR SALE PLAINLY CONTEMPLATED THE SHIPMENT INTERSTATE IN FULFILMENT OF
THE CONTRACT.  WILOIL CORPORATION V. PENNSYLVANIA, SUPRA, 173; GRAYBAR
ELECTRIC CO. V. CURRY, SUPRA.  IN THE SAME CIRCUMSTANCES THE COURT HAS
UPHELD A PROPERTY TAX ON THE MERCHANDISE TRANSPORTED, AMERICAN STEEL &
WIRE CO. V. SPEED, SUPRA; GENERAL OIL CO. V. CRAIN, SUPRA; SEE BACON V.
ILLINOIS, SUPRA, 515, 516; UPON ITS USE, MONAMOTOR OIL CO. V. JOHNSON,
SUPRA; FELT & TARRANT CO. V. GALLAGHER, SUPRA, AND UPON ITS STORAGE;
CF. GREGG DYEING CO. V. QUERY, SUPRA; NASHVILLE, C. & ST. L. RY. CO. V.
WALLACE, SUPRA.  TAXATION OF PROPERTY OR THE EXERCISE OF A POWER OVER
IT IMMEDIATELY PRECEDING ITS PREVIOUSLY CONTEMPLATED SHIPMENT
INTERSTATE HAS BEEN SIMILARLY SUSTAINED.  COE V. ERROL, SUPRA; BACON V.
ILLINOIS, SUPRA; FEDERAL COMPRESS & WAREHOUSE CO. V. MCLEAN, 291 U.S.
17.  FOR REASONS ALREADY INDICATED ALL SUCH TAXES UPON PROPERTY OR THE
EXERCISE OF THE POWERS OF OWNERSHIP STAND IN NO DIFFERENT RELATION TO
INTERSTATE COMMERCE AND HAVE NO DIFFERENT EFFECT UPON IT THAN HAS THE
PRESENT SALES TAX UPON GOODS WHOSE SHIPMENT INTERSTATE INTO THE TAXING
STATE WAS CONTEMPLATED WHEN THE CONTRACT WAS ENTERED INTO. 

IT IS ALSO URGED THAT THE CONCLUSION WHICH WE REACH IS INCONSISTENT
WITH THE LONG LINE OF DECISIONS OF THIS COURT FOLLOWING ROBBINS V.
SHELBY COUNTY TAXING DISTRICT, 120 U.S. 489, WHICH HAVE HELD INVALID,
LICENSE TAXES TO THE EXTENT THAT THEY HAVE SOUGHT TO TAX THE OCCUPATION
OF SOLICITING ORDERS FOR THE PURCHASE OF GOODS TO BE SHIPPED INTO THE
TAXING STATE.  IN SOME INSTANCES THE TAX APPEARED TO BE AIMED AT
SUPPRESSION OR PLACING AT A DISADVANTAGE THIS TYPE OF BUSINESS WHEN
BROUGHT INTO COMPETITION WITH COMPETING INTRASTATE SALES.  SEE ROBBINS
V. SHELBY COUNTY TAXING DISTRICT, SUPRA, 498; CALDWELL V. NORTH
CAROLINA, 187 U.S. 622, 632.  FN11  IN ALL, THE STATUTE, IN ITS
PRACTICAL OPERATION, WAS CAPABLE OF USE, THROUGH INCREASE IN THE TAX,
AND IN FACT OPERATED TO SOME EXTENT TO PLACE THE MERCHANT THUS DOING
BUSINESS INTERSTATE AT A DISADVANTAGE IN COMPETITION WITH UNTAXED SALES
AT RETAIL STORES WITHIN THE STATE.  WHILE A STATE, IN SOME
CIRCUMSTANCES, MAY BY TAXATION SUPPRESS OR CURTAIL ONE TYPE OF
INTRASTATE BUSINESS TO THE ADVANTAGE OF ANOTHER TYPE OF COMPETING
BUSINESS WHICH IS LEFT UNTAXED, SEE PUGET SOUND POWER & LIGHT CO. V.
SEATTLE, 291 U.S. 619, 625, AND CASES CITED, IT DOES NOT FOLLOW THAT
INTERSTATE COMMERCE MAY BE SIMILARLY AFFECTED BY THE PRACTICAL
OPERATION OF A STATE TAXING STATUTE.  COMPARE HAMMOND PACKING CO. V.
MONTANA, 233 U.S. 331, MAGNANO CO. V. HAMILTON, 292 U.S. 40, WITH
SCHOLLENBERGER V. PENNSYLVANIA, 171 U.S. 1; ROBBINS V. SHELBY COUNTY
TAXING DISTRICT, SUPRA; SPROUT V. SOUTH BEND, 277 U.S. 163.  IT IS
ENOUGH FOR PRESENT PURPOSES THAT THE RULE OF ROBBINS V. SHELBY COUNTY
TAXING DISTRICT, SUPRA, HAS BEEN NARROWLY LIMITED TO FIXED-SUM LICENSE
TAXES IMPOSED ON THE BUSINESS OF SOLICITING ORDERS FOR THE PURCHASE OF
GOODS TO BE SHIPPED INTERSTATE, COMPARE ROBBINS V. SHELBY COUNTY TAXING
DISTRICT, SUPRA, WITH FICKLEN V. SHELBY COUNTY TAXING DISTRICT, 145
U.S. 1; SEE HOWE MACHINE CO. V. GAGE, SUPRA; WAGNER V. COVINGTON,
SUPRA; AND THAT THE ACTUAL AND POTENTIAL EFFECT ON THE COMMERCE OF SUCH
A TAX IS WHOLLY WANTING IN THE PRESENT CASE. 

FINALLY, IT IS SAID THAT THE VICE OF THE PRESENT TAX IS THAT IT IS
MEASURED BY THE GROSS RECEIPTS FROM INTERSTATE COMMERCE AND THUS IN
EFFECT REACHES FOR TAXATION THE COMMERCE CARRIED ON BOTH WITHIN AND
WITHOUT THE TAXING STATE.  ADAMS MANUFACTURING CO. V. STOREN, 304 U.S.
307; GWIN, WHITE & PRINCE V. HENNEFORD, SUPRA; CF. WESTERN LIVE STOCK
V. BUREAU, SUPRA, 260.  IT IS TRUE THAT A STATE TAX UPON THE OPERATIONS
OF INTERSTATE COMMERCE MEASURED EITHER BY ITS VOLUME OR THE GROSS
RECEIPTS DERIVED FROM IT HAS BEEN HELD TO INFRINGE THE COMMERCE CLAUSE,
BECAUSE THE TAX IF SUSTAINED WOULD EXACT TRIBUTE FOR THE COMMERCE
CARRIED ON BEYOND THE BOUNDARIES OF THE TAXING STATE, AND WOULD LEAVE
EACH STATE THROUGH WHICH THE COMMERCE PASSES FREE TO SUBJECT IT TO A
LIKE BURDEN NOT BORNE BY INTRASTATE COMMERCE.  SEE WESTERN LIVE STOCK
V. BUREAU, SUPRA, 255; GWIN, WHITE & PRINCE V. HENNEFORD, SUPRA, 439. 

IN ADAMS MANUFACTURING CO. V. STOREN, SUPRA, 311, 312, A TAX ON GROSS
RECEIPTS, SO FAR AS LAID BY THE STATE OF THE SELLER UPON THE RECEIPTS
FROM SALES OF GOODS MANUFACTURED IN THE TAXING STATE AND SOLD IN OTHER
STATES, WAS HELD INVALID BECAUSE THERE THE COURT FOUND THE RECEIPTS
DERIVED FROM ACTIVITIES IN INTERSTATE COMMERCE, AS DISTINGUISHED FROM
THE RECEIPTS FROM ACTIVITIES WHOLLY INTRASTATE, WERE INCLUDED IN THE
MEASURE OF THE TAX, THE SALES PRICE, WITHOUT SEGREGATION OR
APPORTIONMENT.  IT WAS POINTED OUT, PAGES 310, 311 AND 312, THAT HAD
THE TAX BEEN CONDITIONED UPON THE EXERCISE OF THE TAXPAYER'S FRANCHISE
OR ITS PRIVILEGE OF MANUFACTURING IN THE TAXING STATE, IT WOULD HAVE
BEEN SUSTAINED, DESPITE ITS INCIDENTAL EFFECT ON INTERSTATE COMMERCE,
SINCE THE TAXPAYER'S LOCAL ACTIVITIES OR PRIVILEGES WERE SUFFICIENT TO
SUPPORT SUCH A TAX, AND THAT IT COULD FAIRLY BE MEASURED BY THE SALES
PRICE OF THE GOODS.  COMPARE AMERICAN MANUFACTURING CO. V. ST. LOUIS,
250 U.S. 459, WITH CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292.  SEE
WESTERN LIVE STOCK V. BUREAU, SUPRA, 257-259; CF. BASS, RATCLIFF &
GRETTON V. STATE TAX COMMISSION, 266 U.S. 271, 280; EDUCATIONAL FILMS
CORP. V. WARD, 282 U.S. 379, 387-8; PACIFIC CO. V. JOHNSON, 285 U.S.
480. 

THE RATIONALE OF THE ADAMS MANUFACTURING CO. CASE DOES NOT CALL FOR
CONDEMNATION OF THE PRESENT TAX.  HERE THE TAX IS CONDITIONED UPON A
LOCAL ACTIVITY, DELIVERY OF GOODS WITHIN THE STATE UPON THEIR PURCHASE
FOR CONSUMPTION.  IT IS AN ACTIVITY WHICH, APART FROM ITS EFFECT ON THE
COMMERCE, IS SUBJECT TO THE STATE TAXING POWER.  THE EFFECT OF THE TAX,
EVEN THOUGH MEASURED BY THE SALES PRICE, AS HAS BEEN SHOWN, NEITHER
DISCRIMINATES AGAINST NOR OBSTRUCTS INTERSTATE COMMERCE MORE THAN
NUMEROUS OTHER STATE TAXES WHICH HAVE REPEATEDLY BEEN SUSTAINED AS
INVOLVING NO PROHIBITED REGULATION OF INTERSTATE COMMERCE. 

IN TWO INSTANCES ALREADY NOTED, RESPONDENT'S CONTRACTS WITH AUSTIN,
NICHOLS & CO. AND WITH THE NEW ENGLAND STEAMSHIP COMPANY CALL FOR
DELIVERY OF THE COAL AT POINTS OUTSIDE OF NEW YORK, IN THE ONE CASE
F.O.B. AT THE MINES IN PENNSYLVANIA, AND IN THE OTHER AT THE PIER IN
JERSEY CITY, NEW JERSEY, AND DELIVERIES WERE MADE ACCORDINGLY. 

RESPONDENT ASKED THE STATE COURTS TO RULE THAT THE TAXING ACT DID NOT
APPLY TO THESE TRANSACTIONS, PARTICULARLY BECAUSE THE ENABLING STATUTE
EXPRESSLY PROHIBITS THE CITY FROM IMPOSING A TAX UPON "ANY TRANSACTION
ORIGINATING AND/OR CONSUMMATED OUTSIDE THE TERRITORIAL LIMITS OF THE
CITY."  SEE MATTER OF GUNTHER'S SONS V. MCGOLDRICK, 279 N.Y. 148; 18
N.E.2D 12.  THIS QUESTION THE STATE COURTS LEFT UNANSWERED, THE COURT
OF APPEALS RESTING ITS DECISION WHOLLY ON THE CONSTITUTIONAL GROUND. 

UPON THE REMAND OF THIS CAUSE FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS DECISION, THE STATE COURT WILL BE FREE TO DECIDE
THE STATE QUESTION, AND THE REMAND WILL BE WITHOUT PREJUDICE TO THE
FURTHER PRESENTATION TO THIS COURT OF ANY FEDERAL QUESTION REMAINING
UNDECIDED HERE, IF THE STATE COURT SHALL DETERMINE THAT THE TAXING
STATUTE IS APPLICABLE.  REVERSED. 

FN1  "UPON EACH TAXABLE SALE OR SERVICE THE TAX TO BE COLLECTED SHALL
BE STATED AND CHARGED SEPARATELY FROM THE SALE PRICE OR CHARGE FOR
SERVICE AND SHOWN SEPARATELY ON ANY RECORD THEREOF, AT THE TIME WHEN
THE SALE IS MADE OR EVIDENCE OF SALE ISSUED OR EMPLOYED BY THE VENDOR
AND SHALL BE PAID BY THE PURCHASER TO THE VENDOR, FOR AND ON ACCOUNT OF
THE CITY OF NEW YORK, AND THE VENDOR SHALL BE LIABLE FOR THE COLLECTION
OR THE SERVICE RENDERED; AND THE VENDOR SHALL HAVE THE SAME RIGHT IN
RESPECT TO COLLECTING THE TAX FROM THE PURCHASER, OR IN RESPECT TO NON
PAYMENT OF THE TAX BY THE PURCHASER, AS IF THE TAX WERE A PART OF THE
PURCHASE PRICE OF THE PROPERTY OR SERVICE AND PAYABLE AT THE TIME OF
THE SALE." 

FN2  DESPITE MECHANICAL OR ARTIFICIAL DISTINCTIONS SOMETIMES TAKEN
BETWEEN THE TAXES DEEMED PERMISSIBLE AND THOSE CONDEMNED, THE DECISIONS
APPEAR TO BE PREDICATED ON A PRACTICAL JUDGMENT AS TO THE LIKELIHOOD OF
THE TAX BEING USED TO PLACE INTERSTATE COMMERCE AT A COMPETITIVE
DISADVANTAGE.  SEE GALVESTON, H. & S.A.R. CO. V. TEXAS, 210 U.S. 217,
227.  LICENSE TAXES REQUIRING A CORPORATION ENGAGED IN INTERSTATE
COMMERCE TO PAY A FEE OF A CERTAIN PERCENTAGE OF ITS CAPITAL STOCK HAVE
BEEN REJECTED BECAUSE OF THE DANGER THAT EACH STATE IN WHICH THE
CORPORATION DOES BUSINESS MAY IMPOSE A SIMILAR TAX, MEASURED BY ITS
INTERSTATE BUSINESS IN ALL, WESTERN UNION V. KANSAS, 216 U.S. 1;
ATCHISON, T. & S.F. RY. CO. V. O'CONNOR, 223 U.S. 280; LOONEY V. CRANE
CO., 245 U.S. 178; INTERNATIONAL PAPER CO. V. MASSACHUSETTS, 246 U.S.
135, AND HAVE ONLY BEEN SUSTAINED WHEN APPORTIONED TO THAT PART OF THE
CAPITAL THOUGHT TO BE ATTRIBUTABLE TO AN INTRASTATE ACTIVITY.  NATIONAL
LEATHER CO. V. MASSACHUSETTS, 277 U.S. 413; INTERNATIONAL SHOE CO. V.
SHARTEL, 279 U.S. 429; FORD MOTOR CO. V. BEAUCHAMP, 308 U.S. 331. 
PRIVILEGE TAXES REQUIRING A PERCENTAGE OF THE GROSS RECEIPTS FROM
INTERSTATE TRANSPORTATION OR FROM OTHER ACTIVITIES IN CARRYING ON THE
MOVEMENT OF THAT COMMERCE, WHICH IF SUSTAINED COULD BE IMPOSED WHEREVER
THE INTERSTATE ACTIVITY OCCURS, HAVE BEEN STRUCK DOWN FOR SIMILAR
REASONS.  FARGO V. MICHIGAN, 121 U.S. 230; PHILADELPHIA & S. STEAMSHIP
CO. V. PENNSYLVANIA, 122 U.S. 326; LELOUP V. MOBILE, 127 U.S. 640;
GALVESTON, H. & S.A.R. CO. V. TEXAS, 210 U.S. 217, CF. GWIN, WHITE &
PRINCE V. HENNEFORD, 305 U.S. 434.  FIXED-SUM LICENSE FEES, REGARDLESS
OF THE AMOUNT, FOR THE PRIVILEGE OF CARRYING ON THE COMMERCE, HAVE BEEN
THOUGHT LIKELY TO BE USED TO OVERBURDEN THE INTERSTATE COMMERCE, MCCALL
V. CALIFORNIA, 136 U.S. 104; CRUTCHER V. KENTUCKY, 141 U.S. 47; BARRETT
V. NEW YORK, 232 U.S. 14; TEXAS TRANSPORTATION & TERMINAL CO. V. NEW
ORLEANS, 264 U.S. 150.  TAXATION OF ARTICLES IN COURSE OF THEIR
MOVEMENT IN INTERSTATE COMMERCE IS SIMILARLY FORECLOSED.  CASE OF STATE
FREIGHT TAX, 13 WALL.  232; CHAMPLAIN REALTY CO. V. BRATTLEBORO, 260
U.S. 366; HUGHES BROS. CO. V. MINNESOTA, 272 U.S. 469; CARSON PETROLEUM
CO. V. VIAL, 279 U.S. 95.  SEE HENDERSON, THE POSITION OF FOREIGN
CORPORATIONS IN AMERICAN CONSTITUTIONAL LAW, 117; POWELL, INDIRECT
ENCROACHMENT ON FEDERAL AUTHORITY BY THE TAXING POWER OF THE STATES, 31
HARV. L. REV. 321, 572, 721, 932; 32 HARV. L. REV. 234, 374, 634, 902. 
LYING BACK OF THESE DECISIONS IS THE RECOGNIZED DANGER THAT, TO THE
EXTENT THAT THE BURDEN FALLS ON ECONOMIC INTERESTS WITHOUT THE STATE,
IT IS NOT LIKELY TO BE ALLEVIATED BY THOSE POLITICAL RESTRAINTS WHICH
ARE NORMALLY EXERTED ON LEGISLATION WHERE IT AFFECTS ADVERSELY
INTERESTS WITHIN THE STATE.  SEE ROBBINS V. SHELBY COUNTY TAXING
DISTRICT, 120 U.S. 489, 499; SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL
BROS., 303 U.S. 177, 185, NOTE 2; CF. MCCULLOCH V. MARYLAND, 4 WHEAT. 
316; HELVERING V. GERHARDT, 304 U.S. 405, 412. 

FN3  UNITED STATES GLUE CO. V. OAK CREEK, 247 U.S. 321; UNDERWOOD
TYPEWRITER CO. V. CHAMBERLAIN, 254 U.S. 113; ATLANTIC COAST LINE R. CO.
V. DAUGHTON, 262 U.S. 413; MATSON NAVIGATION CO. V. STATE BOARD, 297
U.S. 441. 

FN4  ADAMS EXPRESS CO. V. OHIO, 165 U.S. 194; WELLS FARGO & CO. V.
NEVADA, 248 U.S. 165; ST. LOUIS & E. ST. L. RY. CO. V. MISSOURI, 256
U.S. 314; SOUTHERN RY. CO. V. WATTS, 260 U.S. 519. 

FN5  COE V. ERROL, 116 U.S. 517; BACON V. ILLINOIS, 227 U.S. 504;
HEISLER V. THOMAS COLLIERY CO., 260 U.S. 245; MINNESOTA V. BLASIUS, 290
U.S. 1.  CF. HOPE NATURAL GAS CO. V. HALL, 274 U.S. 284. 

FN6  BROWN V. HOUSTON, 114 U.S. 622; PITTSBURGH & SOUTHERN COAL CO.
V. BATES, 156 U.S. 577; AMERICAN STEEL & WIRE CO. V. SPEED, 192 U.S.
500; GENERAL OIL CO. V. CRAIN, 209 U.S. 211. 

FN7  FEDERAL COMPRESS & WAREHOUSE CO. V. MCLEAN, 291 U.S. 17;
CHASSANIOL V. GREENWOOD, 291 U.S. 584. 

FN8  EASTERN AIR TRANSPORT V. SOUTH CAROLINA, 285 U.S. 147; GREGG
DYEING CO. V. QUERY, 286 U.S. 472; NASHVILLE, C. & ST. L. RY. CO. V.
WALLACE, 288 U.S. 249; EDELMAN V. BOEING AIR TRANSPORT, 289 U.S. 249. 

FN9  THE IMPOSITION ON THE SELLER OF THE DUTY TO INSURE COLLECTION OF
THE TAX FROM THE PURCHASER DOES NOT VIOLATE THE COMMERCE CLAUSE.  SEE
MONAMOTOR OIL CO. V. JOHNSON, SUPRA; FELT & TARRANT MFG. CO. V.
GALLAGHER, SUPRA. 

FN10  IN ALL OF THESE CASES, EXCEPT HENNEFORD V. SILAS MASON CO.,
SUPRA, THE TAXED SALE WAS OF MERCHANDISE IN THE "ORIGINAL PACKAGE,"
ALTHOUGH THE ORIGINAL PACKAGE DOCTRINE HAD BEEN THOUGHT TO BE A
"POSITIVE AND ABSOLUTE" LIMITATION ON THE EXERCISE OF STATE POWER. 
AMERICAN STEEL & WIRE CO. V. SPEED, 192 U.S. 500, 521.  THE DOCTRINE
ORIGINATED IN BROWN V. MARYLAND, 12 WHEAT.  419, WHERE A DISCRIMINATORY
TAX ON IMPORTS WAS INVOLVED.  IT WAS OVERTHROWN AS TO INTERSTATE
COMMERCE WHEN THE COURT FOUND THAT IT WOULD BE UNJUST TO PERMIT THE
MERCHANT WHO ENGAGED IN INTERSTATE COMMERCE TO ESCAPE A TAX WHICH THE
STATE HAD LEVIED ON THE SALE OF GOODS AFTER THEIR INTERSTATE SHIPMENT,
BUT WITH EQUAL JUSTICE ON ALL MERCHANTS.  WOODRUFF V. PARHAM, 8 WALL. 
123; HINSON V. LOTT, 8 WALL.  148.  AFTER ITS SUPPOSED RECRUDESCENCE IN
LEISY V. HARDIN, 135 U.S. 100, THE OPINIONS OF JUSTICE MILLER IN
WOODRUFF V. PARHAM, SUPRA, AND OF JUSTICE BRADLEY IN BROWN V. HOUSTON,
114 U.S. 622, WERE EXPLAINED BY CHIEF JUSTICE (THEN JUSTICE) WHITE IN
AMERICAN STEEL & WIRE CO. V. SPEED, SUPRA, AT 521, AS THE RECOGNITION
BY THE COURT THAT THE QUESTION WAS NOT WHETHER "INTERSTATE COMMERCE WAS
TO BE CONSIDERED AS HAVING COMPLETELY TERMINATED," BUT WHETHER A
PARTICULAR EXERTION OF TAXING POWER BY A STATE "SO OPERATED UPON
INTERSTATE COMMERCE AS TO AMOUNT TO A REGULATION THEREOF, IN CONFLICT
WITH THE PARAMOUNT AUTHORITY CONFERRED UPON CONGRESS."  HE POINTED OUT
THAT THE COURT IN THESE CASES "CONCEDED THAT THE GOODS WHICH WERE TAXED
HAD NOT COMPLETELY LOST THEIR CHARACTER AS INTERSTATE COMMERCE SINCE
THEY HAD NOT BEEN SOLD IN THE ORIGINAL PACKAGE.  AS, HOWEVER, THEY HAD
ARRIVED AT THEIR DESTINATION, WERE AT REST IN THE STATE, WERE ENJOYING
THE PROTECTION WHICH THE LAWS OF THE STATE AFFORDED, AND WERE TAXED
WITHOUT DISCRIMINATION LIKE ALL OTHER PROPERTY, IT WAS HELD THAT THE
TAX DID NOT AMOUNT TO A REGULATION IN THE SENSE OF THE CONSTITUTION,
ALTHOUGH ITS LEVY MIGHT REMOTELY AND INDIRECTLY AFFECT INTERSTATE
COMMERCE."  CF. CARDOZO, J., IN BALDWIN V. SEELIG, 294 U.S. 511, 526. 

"THE TEST OF THE 'ORIGINAL PACKAGE,' WHICH CAME INTO OUR LAW WITH
BROWN V. MARYLAND, 12 WHEAT.  419, IS NOT INFLEXIBLE AND FINAL FOR THE
TRANSACTIONS OF INTERSTATE COMMERCE, WHATEVER MAY BE ITS VALIDITY FOR
COMMERCE WITH OTHER COUNTRIES.  CF. WOODRUFF V. PARHAM, SUPRA; ANGLO
CHILEAN NITRATE SALES CORP. V. ALABAMA, 288 U.S. 218, 226.  THERE ARE
PURPOSES FOR WHICH MERCHANDISE, TRANSPORTED FROM ANOTHER STATE, WILL BE
TREATED AS A PART OF THE GENERAL MASS OF PROPERTY AT THE STATE OF
DESTINATION THOUGH STILL IN THE ORIGINAL CONTAINERS.  THIS IS SO, FOR
ILLUSTRATION, WHERE MERCHANDISE SO CONTAINED IS SUBJECTED TO A NON
DISCRIMINATORY PROPERTY TAX WHICH IT BEARS EQUALLY WITH OTHER
MERCHANDISE PRODUCED WITHIN THE STATE.  SONNEBORN BROS. V. CURETON, 262
U.S. 506; TEXAS CO. V. BROWN, 258 U.S. 466, 475; AMERICAN STEEL & WIRE
CO. V. SPEED, 192 U.S. 500.  ...  'A STATE TAX UPON MERCHANDISE BROUGHT
IN FROM ANOTHER STATE, OR UPON ITS SALES, WHETHER IN ORIGINAL PACKAGES
OR NOT, AFTER IT HAS REACHED ITS DESTINATION AND IS IN A STATE OF REST,
IS LAWFUL ONLY WHEN THE TAX IS NOT DISCRIMINATING IN ITS INCIDENCE
AGAINST THE MERCHANDISE BECAUSE OF ITS ORIGIN IN ANOTHER STATE.' 
SONNEBORN BROS. V. CURETON, SUPRA, AT P. 516.  CF. BOWMAN V. CHICAGO &
N.W. RY. CO., 125 U.S. 465, 491; ...  IN BRIEF, THE TEST OF THE
ORIGINAL PACKAGE IS NOT AN ULTIMATE PRINCIPLE.  IT IS AN ILLUSTRATION
OF A PRINCIPLE.  PENNSYLVANIA GAS CO. V. PUBLIC SERVICE COMM'N, 225
N.Y. 397, 403; 122 N.E. 260.  IT MARKS A CONVENIENT BOUNDARY AND ONE
SUFFICIENTLY PRECISE SAVE IN EXCEPTIONAL CONDITIONS.  WHAT IS ULTIMATE
IS THE PRINCIPLE THAT ONE STATE IN ITS DEALINGS WITH ANOTHER MAY NOT
PLACE ITSELF IN A POSITION OF ECONOMIC ISOLATION.  FORMULAS AND
CATCHWORDS ARE SUBORDINATE TO THIS OVERMASTERING REQUIREMENT." 

FN11  WHEN THE ROBBINS CASE WAS DECIDED, SIXTEEN STATES REQUIRED THE
PAYMENT OF LICENSE TAXES BY SOME KINDS OF DRUMMERS.  FOR CITATIONS OF
THE STATUTES, SEE, LOCKHART, SALES TAX IN INTERSTATE COMMERCE, 52 HARV.
L. REV. 617, 621.  MORE RECENTLY IT HAS BEEN ESTIMATED THAT ALMOST 800
MUNICIPAL ORDINANCES DIRECTED AT DRUMMERS WERE ADOPTED FOR THE PURPOSE
OF EMBARRASSING THIS COMPETITION WITH LOCAL MERCHANTS.  HEMPHILL, THE
HOUSE TO HOUSE CANVASSER IN INTERSTATE COMMERCE, 60 AM. L. REV. 641. 
THE COURT WAS COGNIZANT OF THIS TREND, SEE ROBBINS V. SHELBY COUNTY
TAXING DISTRICT, 120 U.S. 489, 498.  FOLLOWING THIS DECISION 19 SUCH
TAXES WERE DECLARED INVALID.  CARSON V. MARYLAND, 120 U.S. 502; ASHER
V. TEXAS, 128 U.S. 129; STOUTENBURGH V. HENNICK, 129 U.S. 141; BRENNAN
V. TITUSVILLE, 153 U.S. 289; STOCKARD V. MORGAN, 185 U.S. 27; CALDWELL
V. NORTH CAROLINA, 187 U.S. 622; CRENSHAW V. ARKANSAS, 227 U.S. 389;
ROGERS V. ARKANSAS, 227 U.S. 401; STEWART V. MICHIGAN, 232 U.S. 665;
DAVIS V. VIRGINIA, 236 U.S. 697; REAL SILK HOSIERY MILLS V. PORTLAND,
268 U.S. 325.  READ IN THEIR PROPER HISTORICAL SETTING THESE CASES MAY
BE SAID TO SUPPORT THE VIEW THAT THIS KIND OF A TAX IS LIKELY TO BE
USED "AS AN INSTRUMENT OF DISCRIMINATION AGAINST INTERSTATE OR FOREIGN
COMMERCE," SEE DISANTO V. PENNSYLVANIA, 273 U.S. 34, 39. 

MR. CHIEF JUSTICE HUGHES, DISSENTING. 

THE PRESSURE OF MOUNTING OUTLAYS HAS LED THE STATES TO SEEK NEW
SOURCES OF REVENUE, AND WE HAVE GONE FAR IN SUSTAINING STATE POWER TO
TAX PROPERTY AND TRANSACTIONS SUBJECT TO THEIR JURISDICTION DESPITE
INCIDENTAL OR INDIRECT EFFECTS UPON INTERSTATE COMMERCE.  BUT HITHERTO
WE HAVE ALSO MAINTAINED THE PRINCIPLE THAT THE STATES CANNOT LAY A
DIRECT TAX UPON THAT COMMERCE.  IN THE INSTANT CASE, THE COURT OF
APPEALS OF NEW YORK HAS DECIDED UNANIMOUSLY THAT THE TAX AS HERE
APPLIED IS SUCH A TAX AND GOES BEYOND THE LIMIT OF STATE POWER.  281
N.Y. 610.  SEE, ALSO, MATTER OF NATIONAL CASH REGISTER CO. V. TAYLOR,
276 N.Y. 208; 11 N.E.2D 881.  I THINK THAT THE JUDGMENT SHOULD BE
AFFIRMED. 

THE CASE IS ONE OF INTERSTATE COMMERCE IN ITS MOST OBVIOUS FORM.  THE
BERWIND-WHITE COMPANY IS A PENNSYLVANIA CORPORATION ENGAGED IN MINING
COAL IN THAT STATE.  IT HAS A SALES OFFICE IN NEW YORK.  ITS COAL IS
MINED FROM TWO VEINS KNOWN AS "B SEAM" AND "C PRIME SEAM."  THE COAL IS
SOLD TO NEW YORK CONSUMERS FOR PLANTS AND STEAMSHIPS.  THE CONTRACTS OF
SALE CALL FOR COAL FROM THE SELLER'S MINES IN PENNSYLVANIA, MOST OF IT
BEING OF THE "B SEAM" SORT.  THE CONTRACTS ARE GENERALLY FOR A
SPECIFIED PERIOD, ORDERS BEING GIVEN AS COAL IS NEEDED.  THE PURCHASERS
NOTIFY THE MINING COMPANY OF THEIR REQUESTS, WHEREUPON THE COAL IS
MINED TO MEET THE ORDERS, TWO DAYS BEING ALLOWED FOR MINING AND FIVE
FOR TRANSPORTATION.  THE COAL IS TRANSPORTED FROM THE MINES BY RAILROAD
TO A PIER IN JERSEY CITY WHERE THE SELLER'S BARGES TAKE THE COAL AND
BRING IT ALONGSIDE THE PURCHASERS' PLANT OR STEAMSHIP WHERE DELIVERY IS
MADE, THE PURCHASERS DOING THE UNLOADING.  THERE WERE TWO PURCHASERS
WHO TOOK DELIVERY OUTSIDE NEW YORK. 

THE TAX IS TWO PER CENT OF THE ENTIRE PURCHASE PRICE.  THE COURT OF
APPEALS HAS DESCRIBED THE TAX AS "TWO PER CENT UPON RECEIPTS FROM EVERY
SALE OF TANGIBLE PERSONAL PROPERTY SOLD WITHIN THE CITY."  MATTER OF
SEARS, ROEBUCK & CO. V. MCGOLDRICK, 279 N.Y. 184, 187; 18 N.E.2D 25. 
THERE CAN BE NO DOUBT AS TO THE INCIDENCE OF THE TAX IN THIS INSTANCE. 
THE COMPTROLLER OF THE CITY HAS ASSESSED THE TAX AGAINST THE SELLER,
THE BERWIND-WHITE COMPANY.  THE STATUTE REQUIRES THE SELLER, UNDER
PENALTY, TO FILE A RETURN OF ITS SALES AND TO PAY THE TAX.  TO ENFORCE
THE PAYMENT, THE PROPERTY OF THE SELLER MAY BE LEVIED UPON UNDER A
COMPTROLLER'S WARRANT.  IT IS THE TAX SO LAID THAT THE CITY NOW
DEMANDS.  IN THE MATTER OF ATLAS TELEVISION CO., 273 N.Y. 51, 57, 58; 6
N.E.2D 94, THE COURT OF APPEALS HELD THAT THE CONTENTION THAT THE
SELLER WAS REQUIRED ONLY TO COLLECT THE TAX AS THE AGENT OF THE CITY
COULD NOT BE SUSTAINED AND HENCE IT WAS DECIDED THAT IN CASE OF THE
SELLER'S INSOLVENCY THE CITY WAS ENTITLED TO PRIORITY OF PAYMENT.  THE
COURT SAID:  "THE DUTY OF PAYMENT TO THE CITY IS LAID UPON THE VENDOR,
NOT THE PURCHASER.  HIS LIABILITY IS NOT MEASURED BY THE AMOUNT
ACTUALLY COLLECTED FROM THE PURCHASER BUT BY THE RECEIPTS REQUIRED TO
BE INCLUDED IN SUCH RETURN.  (SEC. 6.)  HE MUST PAY THE TAX EVEN IF
FAILURE TO COLLECT IS DUE TO NO FAULT OF HIS OWN."  THIS STATEMENT WAS
REPEATED IN MATTER OF MERCHANTS REFRIGERATING CO. V. TAYLOR, 275 N.Y.
113, 118; 9 N.E.2D 799, AND WHILE IT WAS THERE SAID THAT THE ATLAS CASE
DID NOT HOLD THAT THE SALES TAX WAS "IMPOSED" ON THE VENDOR, STILL THE
COURT AGAIN RULED THAT THE VENDOR "IS UNDER A DUTY TO PAY THE TAX TO
THE CITY REGARDLESS OF WHETHER OR NOT THE VENDOR COLLECTS IT FROM THE
PURCHASER."  ID., P. 124.  IF THE VENDOR MUST PAY THE TAX WHETHER OR
NOT HE CAN RECOUP THE AMOUNT FROM THE PURCHASER, AND THE TAX, AS HERE,
IS ASSESSED AGAINST THE VENDOR, IT WOULD SEEM INADMISSIBLE TO DEFEND
THE TAX UPON THE GROUND THAT IT IS A TAX UPON THE PURCHASER.  FROM ANY
POINT OF VIEW, THE TAX NOW CONTESTED IS LAID UPON INTERSTATE SALES. 

IN CONFIDING TO CONGRESS THE POWER TO REGULATE INTERSTATE COMMERCE,
THE AIM WAS TO PROVIDE A FREE NATIONAL MARKET,  - TO PULL DOWN AND
PREVENT THE RE-ERECTION OF STATE BARRIERS TO THE FREE INTERCOURSE
BETWEEN THE PEOPLE OF THE STATES.  THAT FREE INTERCOURSE WAS DEEMED,
AND HAS PROVED, TO BE ESSENTIAL TO OUR NATIONAL ECONOMY.  IT SHOULD NOT
BE IMPAIRED.  AS WE RECENTLY SAID IN BALDWIN V. SEELIG, 294 U.S. 511,
522:  "IMPOSTS AND DUTIES UPON INTERSTATE COMMERCE ARE PLACED BEYOND
THE POWER OF A STATE, WITHOUT THE MENTION OF AN EXCEPTION, BY THE
PROVISION COMMITTING COMMERCE OF THAT ORDER TO THE POWER OF THE
CONGRESS.  ... 'IT IS THE ESTABLISHED DOCTRINE OF THIS COURT THAT A
STATE MAY NOT, IN ANY FORM OR UNDER ANY GUISE, DIRECTLY BURDEN THE
PROSECUTION OF INTERSTATE BUSINESS'." 

UNDOUBTEDLY THE PROBLEM OF MAINTAINING THE PROPER BALANCE BETWEEN
STATE AND NATIONAL POWER HAS BEEN A MOST DIFFICULT ONE.  WE HAVE
RECOGNIZED THE POWER OF THE STATE TO MEET LOCAL EXIGENCIES IN
PROTECTING HEALTH AND SAFETY AND PREVENTING FRAUD, AS, FOR EXAMPLE, IN
THE CASE OF QUARANTINE, PILOTAGE AND INSPECTION LAWS, ALTHOUGH
INTERSTATE OR FOREIGN COMMERCE IS INVOLVED; THAT IS, UNTIL CONGRESS IN
THE EXERCISE OF ITS PARAMOUNT AUTHORITY DISPLACES SUCH LOCAL
REQUIREMENTS.  FN1  WE HAVE ALSO RECOGNIZED THE POWER OF THE STATE TO
TAX PROPERTY SUBJECT TO ITS JURISDICTION ALTHOUGH THE PROPERTY HAS COME
FROM ANOTHER STATE, WHEN IT IS FOUND THAT INTERSTATE COMMERCE HAS ENDED
AND THAT THE PROPERTY HAS BECOME A PART OF THE COMMON MASS WITHIN THE
STATE.  WE HAVE SUSTAINED THE AUTHORITY OF THE STATE TO IMPOSE
OCCUPATION TAXES WHEN THEY WERE DEEMED TO BE SO MEASURED OR APPORTIONED
AS TO RELATE APPROPRIATELY TO THE PRIVILEGE OF TRANSACTING AN
INTRASTATE BUSINESS.  THE APPLICATION OF THESE PRINCIPLES HAS LED TO
CLOSE DISTINCTIONS.  FN2  BUT THAT FACT WOULD SEEM TO PRESENT NO GOOD
REASON FOR SWEEPING AWAY THE PROTECTION OF INTERSTATE COMMERCE WHERE
THE STATE LAYS A DIRECT TAX UPON THAT COMMERCE AS IN THIS CASE. 

WE HAVE SAID IN A LONG LINE OF DECISIONS, THAT THE STATE CANNOT TAX
INTERSTATE COMMERCE EITHER BY LAYING THE TAX UPON THE BUSINESS WHICH
CONSTITUTES SUCH COMMERCE OR THE PRIVILEGE OF ENGAGING IN IT, OR UPON
THE RECEIPTS, AS SUCH, DERIVED FROM IT.  FN3  THE SAME PRINCIPLE HAS
BEEN DECLARED IN RECENT CASES.  IN FISHER'S BLEND STATION V. TAX
COMMISSION, 297 U.S. 650, 655, WE SAID:  "AS APPELLANT'S INCOME IS
DERIVED FROM INTERSTATE COMMERCE, THE TAX, MEASURED BY APPELLANT'S
GROSS INCOME, IS OF A TYPE WHICH HAS LONG BEEN HELD TO BE AN
UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE."  THERE, A STATE
OCCUPATION TAX UPON THE GROSS RECEIPTS OF THE OWNER OF A RADIO STATION
FROM BROADCASTING PROGRAMS TO LISTENERS WITHIN AND BEYOND THE STATE WAS
HELD INVALID.  IT WAS SAID TO BE ENOUGH THAT THE TAX WAS LEVIED ON
GROSS RECEIPTS FROM THE PROPRIETOR'S "ENTIRE OPERATIONS, WHICH INCLUDE
INTERSTATE COMMERCE."  ID., P. 656.  IN WESTERN LIVE STOCK V. BUREAU OF
REVENUE, 303 U.S. 250, A TAX ON THE GROSS RECEIPTS FROM THE SALE OF
ADVERTISING BY A TRADE JOURNAL WAS SUSTAINED BECAUSE IN THE LAST
ANALYSIS THE TAX, LIKE THAT UPON THE PRIVILEGE OF MANUFACTURING WITHIN
THE STATE, WAS UPON THE CARRYING ON OF A LOCAL BUSINESS IN THE
PREPARING, PRINTING AND PUBLISHING A MAGAZINE.  ID., P. 258.  SOON
AFTER, WE HELD IN ADAMS MANUFACTURING CO. V. STOREN, 304 U.S. 307, 311,
THAT A STATE TAX COULD NOT BE CONSTITUTIONALLY APPLIED TO THE GROSS
RECEIPTS DERIVED BY AN INDIANA CORPORATION IN INTERSTATE COMMERCE
THROUGH THE SALE OF ITS PRODUCTS MANUFACTURED IN INDIANA TO CUSTOMERS
IN OTHER STATES.  AND, BUT A YEAR AGO, IN GWIN, WHITE & PRINCE V.
HENNEFORD, 305 U.S. 434, 435, 436, 438, WE HELD INVALID A STATE TAX
MEASURED BY THE GROSS RECEIPTS FROM THE BUSINESS OF MARKETING FRUIT
SHIPPED IN INTERSTATE COMMERCE FROM THE STATE OF PRODUCTION TO PLACES
IN OTHER STATES WHERE THE SALES AND DELIVERIES WERE MADE AND THE
PROCEEDS COLLECTED.  IF THE QUESTION NOW BEFORE US IS CONTROLLED BY
PRECEDENT, THE RESULT WOULD SEEM TO BE CLEAR. 

IN RELATION TO THE PRESENT TRANSACTION, IT WOULD HARDLY BE CONTENDED
THAT NEW YORK COULD TAX THE TRANSPORTATION OF THE COAL FROM
PENNSYLVANIA TO NEW YORK OR A CONTRACT FOR THAT TRANSPORTATION.  BUT
THE MOVEMENT OF THE COAL FROM THE ONE STATE TO THE OTHER WAS DEFINITELY
REQUIRED BY THE CONTRACTS OF SALE AND THESE SALES MUST BE REGARDED AS
AN ESSENTIAL PART OF THE COMMERCIAL INTERCOURSE CONTEMPLATED BY THE
COMMERCE CLAUSE.  GIBBONS V. OGDEN, 9 WHEAT.  1, 188.  THE TAX ON THE
GROSS RECEIPTS OF THE SELLER FROM THESE SALES WAS MANIFESTLY AN
IMPOSITION UPON THE SALES THEMSELVES.  WHETHER THE TAX BE SMALL OR
LARGE, IT IS PLAINLY TO THE EXTENT OF IT A BURDEN UPON INTERSTATE
COMMERCE; AND AS IT IS IMPOSED IMMEDIATELY UPON THE GROSS RECEIPTS FROM
THAT COMMERCE, IT IS A DIRECT BURDEN.  AND, AS WE HAVE OFTEN SAID,
WHERE WHAT IS TAXED IS SUBJECT TO THE JURISDICTION OF THE STATE, THE
SIZE OF THE TAX LIES WITHIN THE DISCRETION OF THE STATE, AND NOT OF
THIS COURT.  A. MAGNANO CO. V. HAMILTON, 292 U.S. 40, 45.  SEE, ALSO,
ALASKA FISH CO. V. SMITH, 255 U.S. 44, 48. 

HOW THEN CAN THE LAYING OF SUCH A BURDEN UPON INTERSTATE COMMERCE BE
JUSTIFIED?  IT IS URGED THAT THERE IS A TAXABLE EVENT WITHIN THE
STATE.  THAT EVENT IS SAID TO BE THE DELIVERY OF THE COAL.  BUT HOW CAN
THAT EVENT BE DEEMED TO BE TAXABLE BY THE STATE?  THE DELIVERY IS BUT
THE NECESSARY PERFORMANCE OF THE CONTRACT OF SALE.  LIKE THE SHIPMENT
FROM THE MINES, IT IS AN INTEGRAL PART OF THE INTERSTATE TRANSACTION. 
IT IS SAID THAT TITLE TO THE COAL PASSES TO THE PURCHASER ON DELIVERY. 
BUT THE PLACE WHERE THE TITLE PASSES HAS NOT BEEN REGARDED AS THE TEST
OF THE INTERSTATE CHARACTER OF A SALE.  WE HAVE FREQUENTLY DECIDED THAT
WHERE A COMMODITY IS MINED OR MANUFACTURED IN ONE STATE AND IN
PURSUANCE OF CONTRACTS OF SALE IS DELIVERED FOR TRANSPORTATION TO
PURCHASERS IN ANOTHER STATE, THE MERE FACT THAT THE SALE IS F.O.B. CARS
IN THE SELLER'S STATE AND THE PURCHASER PAYS THE FREIGHT DOES NOT MAKE
THE SALE OTHER THAN INTERSTATE.  FN4  AND WHEN, AS HERE, THE BUYER IN
AN INTERSTATE SALE TAKES DELIVERY IN HIS OWN STATE, THAT DELIVERY IN
COMPLETION OF THE SALE IS AS PROPERLY IMMUNE FROM STATE TAXATION AS IS
THE TRANSPORTATION TO THE PURCHASER'S DOCK OR VESSEL.  MOREOVER, EVEN
IF IT WERE POSSIBLE TO SUSTAIN A STATE TAX BY REASON OF SUCH DELIVERY
WITHIN THE STATE, THERE WOULD STILL BE NO GROUND FOR SUSTAINING A TAX
UPON THE WHOLE OF THE INTERSTATE TRANSACTION OF WHICH THE DELIVERY IS
ONLY A PART, AS IN THE CASE OF A TAX UPON THE ENTIRE GROSS RECEIPTS. 

PETITIONER STRONGLY INSISTS THAT IN SUBSTANCE THE TAX HERE SHOULD BE
REGARDED AS THE SAME AS A USE TAX THE VALIDITY OF WHICH THIS COURT HAS
SUSTAINED.  HENNEFORD V. SILAS MASON CO., 300 U.S. 577; SOUTHERN
PACIFIC CO. V. GALLAGHER, 306 U.S. 167.  BUT IN THE HENNEFORD CASE, MR.
JUSTICE CARDOZO, IN SPEAKING FOR THE COURT, WAS MOST CAREFUL TO SHOW
THAT THE USE TAX WAS UPHELD BECAUSE IT WAS IMPOSED AFTER INTERSTATE
COMMERCE HAD COME TO AN END.  IN MAKING THIS DISTINCTION, THE COURT
CLEARLY RECOGNIZED THAT A TAX IMPOSED DIRECTLY UPON INTERSTATE COMMERCE
WOULD BE BEYOND THE STATE'S POWER, AND THE TAX WAS SUSTAINED AS ONE
UPON PROPERTY WHICH HAD COME TO REST WITHIN THE STATE AND LIKE OTHER
PROPERTY WAS SUBJECT TO ITS JURISDICTION.  THE COURT SAID:  "THE TAX IS
NOT UPON THE OPERATIONS OF INTERSTATE COMMERCE, BUT UPON THE PRIVILEGE
OF USE AFTER COMMERCE IS AT AN END.  ...  THE PRIVILEGE OF USE IS ONLY
ONE ATTRIBUTE, AMONG MANY, OF THE BUNDLE OF PRIVILEGES THAT MAKE UP
PROPERTY OR OWNERSHIP."  ID., P. 582.  AND LATER, IN PUGET SOUND CO. V.
STATE TAX COMMISSION, 302 U.S. 90, 92, 94, MR. JUSTICE CARDOZO IN
DELIVERING THE OPINION OF THE COURT, AFTER SHOWING THAT THE BUSINESS OF
THE COMPANY, SO FAR AS IT CONSISTED OF THE LOADING AND DISCHARGE OF
CARGOES BY LONGSHOREMEN SUBJECT TO ITS OWN CONTROL, WAS INTERSTATE OR
FOREIGN COMMERCE, CONCLUDED THAT THE STATE WAS "NOT AT LIBERTY TO TAX
THE PRIVILEGE OF DOING IT BY EXACTING IN RETURN THEREFOR A PERCENTAGE
OF THE GROSS RECEIPTS."  HE OBSERVED THAT "DECISIONS TO THAT EFFECT ARE
MANY AND CONTROLLING."  THE FACT THAT A USE TAX, SUSTAINED AS A TAX
UPON AN ATTRIBUTE OF PROPERTY WHICH IS SUBJECT TO THE JURISDICTION OF
THE STATE, MAY HAVE AN INCIDENTAL OR INDIRECT EFFECT UPON INTERSTATE
COMMERCE, AND THUS IN THE OPINION OF COMMENTATORS MAY TEND TO
DISCOURAGE INTERSTATE TRANSACTIONS, IS CERTAINLY NO EXCUSE FOR GOING
FURTHER AND UPHOLDING THE ACTION OF STATES WHICH, LOOKING WITH A
JEALOUS EYE UPON THE FREEDOM OF INTERSTATE COMMERCE, ATTEMPT TO LAY A
DIRECT TAX UPON THAT COMMERCE. 

THE POINT WAS CLEARLY BROUGHT OUT BY MR. JUSTICE HOLMES, SPEAKING FOR
THE COURT IN GALVESTON, H. & S.A. RY. CO. V. TEXAS, 210 U.S. 217, 227,
WHEN HE REFERRED TO THE NECESSITY OF MAINTAINING THE DISTINCTION
BETWEEN TAXATION OF PROPERTY WITHIN THE STATE, WHICH HAD LONG BEEN
UPHELD, AND TAXATION OF INTERSTATE BUSINESS, WHICH HAD BEEN CONDEMNED. 
HE OBSERVED THAT "WHEN A LEGISLATURE IS TRYING SIMPLY TO VALUE
PROPERTY, IT IS LESS LIKELY TO ATTEMPT TO OR EFFECT INJURIOUS
REGULATION THAN WHEN IT IS AIMING DIRECTLY AT THE RECEIPTS FROM
INTERSTATE COMMERCE."  ACCORDINGLY A STATE TAX UPON GROSS RECEIPTS
WHICH INCLUDED RECEIPTS FROM INTERSTATE BUSINESS WAS HELD INVALID. 

THE GROUND MOST STRONGLY ASSERTED FOR SUSTAINING THE TAX IN THE
PRESENT CASE IS THAT IT IS NON-DISCRIMINATORY.  UNDOUBTEDLY A STATE TAX
MAY BE BAD BECAUSE IT IS SO LAID AS TO INVOLVE A HOSTILE DISCRIMINATION
AGAINST INTERSTATE COMMERCE.  BUT DOES IT FOLLOW THAT A STATE MAY LAY A
DIRECT TAX UPON INTERSTATE COMMERCE BECAUSE IT IS FREE TO TAX ITS OWN
COMMERCE IN A SIMILAR WAY?  THUS, A STATE MAY TAX INTRASTATE
TRANSPORTATION, BUT IT MAY NOT TAX INTERSTATE TRANSPORTATION.  THE
STATE MAY TAX INTRASTATE SALES,  FN5  BUT CAN THE STATE TAX INTERSTATE
SALES IN ORDER TO PROMOTE ITS LOCAL BUSINESS?  IT WOULD SEEM TO BE
EXTRAORDINARY IF A STATE COULD ESCAPE THE RESTRICTION AGAINST DIRECT
IMPOSITIONS UPON INTERSTATE COMMERCE BY FIRST LAYING EXACTIONS UPON ITS
OWN TRADE AND THEN INSISTING THAT IN ORDER TO MAKE ITS LOCAL POLICY
COMPLETELY EFFECTIVE IT MUST BE ALLOWED TO LAY SIMILAR EXACTIONS UPON
INTERSTATE TRADE.  THAT WOULD APPARENTLY AFFORD A SIMPLE METHOD FOR
EXTENDING STATE POWER INTO WHAT HAS HITHERTO BEEN REGARDED AS A
FORBIDDEN FIELD.  MOREOVER, IT MAY OR MAY NOT BE IN THE INTEREST OF THE
STATE TO PROMOTE DOMESTIC TRADE IN A GIVEN COMMODITY.  THE STATE MAY
SEEK BY ITS TAXING SCHEME TO RESTRICT SUCH TRADE AND THE MERE
EQUIVALENCY OF A TAX UPON DOMESTIC BUSINESS WOULD NOT PREVENT THE
INJURIOUS EFFECT UPON INTERSTATE TRANSACTIONS.  SEE A. MAGNANO CO. V.
HAMILTON, SUPRA. 

SO, WHILE RECOGNIZING THAT A TAX DISCRIMINATING AGAINST INTERSTATE
COMMERCE IS NECESSARILY INVALID, IT HAS LONG BEEN HELD BY THIS COURT IN
THE INTEREST OF THE CONSTITUTIONAL FREEDOM OF THAT COMMERCE THAT A
DIRECT TAX UPON IT IS NOT SAVED BECAUSE THE SAME OR A SIMILAR TAX IS
LAID ALSO UPON INTRASTATE COMMERCE.  THE COURT DEALT SPECIFICALLY WITH
THAT QUESTION IN ROBBINS V. SHELBY COUNTY TAXING DISTRICT, 120 U.S.
489, 497, SAYING:  "INTERSTATE COMMERCE CANNOT BE TAXED AT ALL, EVEN
THOUGH THE SAME AMOUNT OF TAX SHOULD BE LAID ON DOMESTIC COMMERCE, OR
THAT WHICH IS CARRIED ON SOLELY WITHIN THE STATE."  SEE, ALSO, COONEY
V. MOUNTAIN STATES TELEPHONE CO., 294 U.S. 384, 393, 394.  AND VERY
RECENTLY, IN ADAMS MANUFACTURING CO. V. STOREN, SUPRA, P. 312, WHERE A
TAX ON THE GROSS RECEIPTS DERIVED FROM INTERSTATE SALES WAS HELD
INVALID, WE SAID EXPLICITLY:  "THE OPINION OF THE STATE SUPREME COURT
STRESSES THE GENERALITY AND NONDISCRIMINATORY CHARACTER OF THE
EXACTION, BUT IT IS SETTLED THAT THIS WILL NOT SAVE THE TAX IF IT
DIRECTLY BURDENS INTERSTATE COMMERCE." 

WE HAVE DIRECTED ATTENTION TO A VICE IN IMPOSING DIRECT TAXES UPON
INTERSTATE COMMERCE IN THAT SUCH TAXES MIGHT BE IMPOSED WITH EQUAL
RIGHT BY EVERY STATE WHICH THE COMMERCE TOUCHES.  THIS HAS BEEN
OBSERVED WITH RESPECT TO TAXES UPON GROSS RECEIPTS FROM INTERSTATE
TRANSACTIONS.  IN WESTERN LIVE STOCK V. BUREAU OF REVENUE, SUPRA, P.
256, WE SAID:  "THE MULTIPLICATION OF STATE TAXES MEASURED BY THE GROSS
RECEIPTS FROM INTERSTATE TRANSACTIONS WOULD SPELL THE DESTRUCTION OF
INTERSTATE COMMERCE AND RENEW THE BARRIERS TO INTERSTATE TRADE WHICH IT
WAS THE OBJECT OF THE COMMERCE CLAUSE TO REMOVE."  SEE, ALSO, GWIN,
WHITE & PRINCE V. HENNEFORD, SUPRA.  BUT PETITIONER HAS INSISTED THAT
IN THE PRESENT CASE THERE IS NO DANGER OF MULTIPLE TAXATION IN THAT NEW
YORK PUTS ITS TAX UPON AN EVENT WHICH CANNOT OCCUR IN ANY OTHER STATE. 
OF COURSE THE DELIVERY OF THE COAL IN NEW YORK IS AN EVENT WHICH CANNOT
OCCUR IN ANOTHER STATE.  JUST AS NEW YORK CANNOT TAX THE SHIPMENT OF
COAL FROM THE MINES IN PENNSYLVANIA OR THE TRANSSHIPMENT OF THE COAL IN
NEW JERSEY, SO NEITHER PENNSYLVANIA NOR NEW JERSEY CAN TAX THE DELIVERY
IN NEW YORK.  PETITIONER'S ARGUMENT MISSES THE POINT AS TO THE DANGER
OF MULTIPLE TAXATION IN RELATION TO INTERSTATE COMMERCE.  THE SHIPMENT,
THE TRANSSHIPMENT AND THE DELIVERY OF THE COAL ARE BUT PARTS OF A
UNITARY INTERSTATE TRANSACTION.  THEY ARE INTEGRAL PARTS OF AN
INTERSTATE SALE.  IF, BECAUSE OF THE DELIVERY IN NEW YORK, THAT STATE
CAN TAX THE GROSS RECEIPTS FROM THE SALE, WHY CANNOT PENNSYLVANIA BY
REASON OF THE SHIPMENT OF THE COAL IN THAT STATE TAX THE GROSS RECEIPTS
THERE?  THAT WOULD NOT BE DIFFICULT, AS THE SELLER IS A PENNSYLVANIA
CORPORATION AND, IN FACT, IN MANY, IF NOT IN MOST, INSTANCES, THE
PURCHASE PRICE OF THE GOODS SHIPPED TO NEW YORK IS THERE RECEIVED.  THE
POINT IS NOT THAT THE DELIVERY IN NEW YORK IS AN EVENT WHICH CANNOT BE
TAXED BY OTHER STATES, BUT THAT THE AUTHORITY OF NEW YORK TO IMPOSE A
TAX ON THAT DELIVERY CANNOT PROPERLY BE RECOGNIZED WITHOUT ALSO
RECOGNIZING THE AUTHORITY OF OTHER STATES TO TAX THE PARTS OF THE
INTERSTATE TRANSACTION WHICH TAKE PLACE WITHIN THEIR BORDERS.  IF NEW
YORK CAN TAX THE DELIVERY, PENNSYLVANIA CAN TAX THE SHIPMENT AND NEW
JERSEY THE TRANSSHIPMENT.  AND THE LATTER STATES, RESPECTIVELY, WOULD
BE AS MUCH ENTITLED TO TAX THE GROSS RECEIPTS FROM THE SALES AS WOULD
NEW YORK.  EVEN IF IT WERE ASSUMED THAT THE GROSS RECEIPTS FROM THE
INTERSTATE SALES COULD BE APPORTIONED SO THAT EACH STATE COULD TAX SUCH
PORTION OF THE RECEIPTS AS COULD BE DEEMED TO RELATE TO THE PART OF THE
TRANSACTION WITHIN ITS TERRITORY, STILL THIS WOULD NOT HELP NEW YORK
HERE, AS THERE HAS BEEN NO ATTEMPT AT APPORTIONMENT.  THE TAXATION OF
THE GROSS RECEIPTS IN NEW YORK, ON ANY APPROPRIATE VIEW OF WHAT
PERTAINS TO THE INTERSTATE SALES, WOULD SEEM CLEARLY TO INVOLVE THE
DANGER OF MULTIPLE TAXATION TO WHICH WE HAVE ADVERTED IN RECENT
DECISIONS. 

DOUBTLESS MUCH CAN BE SAID AS TO THE DESIRABILITY OF A COMPREHENSIVE
SYSTEM OF TAXATION THROUGH THE COOPERATION OF THE UNION AND THE STATES
SO AS TO AVOID THE DIFFERENTIATIONS WHICH BESET THE APPLICATION OF THE
COMMERCE CLAUSE AND THUS TO PROTECT BOTH STATE AND NATIONAL GOVERNMENTS
BY A JUST AND GENERAL SCHEME FOR RAISING REVENUES.  HOWEVER IMPORTANT
SUCH A POLICY MAY BE, IT IS NOT A MATTER FOR THIS COURT.  WE HAVE THE
DUTY OF MAINTAINING THE IMMUNITY OF INTERSTATE COMMERCE AS CONTEMPLATED
BY THE CONSTITUTION.  THAT IMMUNITY STILL REMAINS AN ESSENTIAL BUTTRESS
OF THE UNION; AND A FREE NATIONAL MARKET, SO FAR AS IT CAN BE PRESERVED
WITHOUT VIOLENCE TO STATE POWER OVER THE SUBJECTS WITHIN STATE
JURISDICTION, IS NOT LESS NOW THAN HERETOFORE A VITAL CONCERN OF THE
NATIONAL ECONOMY.    THE TAX AS HERE APPLIED IS OPEN TO THE SAME
OBJECTION AS A TARIFF UPON THE ENTRANCE OF THE COAL INTO THE STATE OF
NEW YORK, OR A STATE TAX UPON THE PRIVILEGE OF DOING AN INTERSTATE
BUSINESS, AND IN MY VIEW IT CANNOT BE SUSTAINED WITHOUT ABANDONING
PRINCIPLES LONG ESTABLISHED AND A HOST OF PRECEDENTS SOUNDLY BASED. 

FN1  SEE CASES COLLECTED IN MINNESOTA RATE CASES, 230 U.S. 352, 403
411. 

FN2  SEE WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 254
257. 

FN3  MINNESOTA RATE CASES, 230 U.S. 352, 400; STATE FREIGHT TAX CASE,
15 WALL.  232; ROBBINS V. SHELBY TAXING DISTRICT, 120 U.S. 489;
PHILADELPHIA & SOUTHERN MAIL S.S. CO. V. PENNSYLVANIA, 122 U.S. 326;
LELOUP V. MOBILE, 127 U.S. 640; MCCALL V. CALIFORNIA, 136 U.S. 104;
BRENNAN V. TITUSVILLE, 153 U.S. 289; GALVESTON, H. & S.A. RY. CO. V.
TEXAS, 210 U.S. 217; WESTERN UNION TELEGRAPH CO. V. KANSAS, 216 U.S. 1;
PULLMAN CO. V. KANSAS, 216 U.S. 56; MEYER V. WELLS, FARGO & CO., 223
U.S. 298; CRENSHAW V. ARKANSAS, 227 U.S. 389; CREW-LEVICK CO. V.
PENNSYLVANIA, 245 U.S. 292; SONNEBORN BROS. V. CURETON, 262 U.S. 506,
515; FISHER'S BLEND STATION V. TAX COMMISSION, 297 U.S. 650, 655; PUGET
SOUND CO. V. STATE TAX COMMISSION, 302 U.S. 90; ADAMS MANUFACTURING CO.
V. STOREN, 304 U.S. 307, 311; GWIN, WHITE & PRINCE V. HENNEFORD, 305
U.S. 434, 439. 

FN4  SAVAGE V. JONES, 225 U.S. 501, 520; PENNSYLVANIA R. CO. V. CLARK
COAL CO., 238 U.S. 456, 465, 468; CARTER V. CARTER COAL CO., 298 U.S.
238, 320; SANTA CRUZ FRUIT PACKING CO. V. NATIONAL LABOR RELATIONS
BOARD, 303 U.S. 453, 463. 

FN5  WOODRUFF V. PARHAM, 8 WALL.  123; SONNEBORN BROS. V. CURETON,
262 U.S. 506, 515, 516; WILOIL CORP. V. PENNSYLVANIA, 294 U.S. 169,
175. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS JOIN IN THIS OPINION. 

..END :






MCGOLDRICK V. FELT & TARRANT CO., 309 U.S. 70 


NO. 45.  ARGUED JANUARY 2, 1940.  - DECIDED JANUARY 29, 1940.  - 279
N.Y. 678, 280 ID. 688 - 281 ID. 608, 669, REVERSED. 


SALES OF MERCHANDISE FOR WHICH ORDERS WERE TAKEN WITHIN THE CITY OF
NEW YORK, SUBJECT TO APPROVAL BY THE VENDORS IN OTHER STATES, AND
DELIVERY OF WHICH, FOLLOWING SUCH APPROVAL, WAS MADE TO PURCHASERS IN
THAT CITY, EITHER BY DIRECT INTERSTATE SHIPMENT, OR BY INTERSTATE
SHIPMENT TO THE VENDOR'S NEW YORK CITY AGENCY AND DELIVERY BY THE AGENT
TO THE PURCHASER AFTER INSPECTION, TESTS, AND ADJUSTMENTS,  - HELD
CONSTITUTIONALLY SUBJECT TO THE NEW YORK CITY SALES TAX, ON THE
AUTHORITY OF MCGOLDRICK V. BERWIND-WHITE COAL MINING CO., ANTE, P. 33. 
P. 76. 

MCGOLDRICK, COMPTROLLER OF THE CITY OF NEW YORK, V. FELT & TARRANT
MFG. CO.* 

*TOGETHER WITH NO. 474, MCGOLDRICK, COMPTROLLER OF THE CITY OF NEW
YORK, V. A.H. DUGRENIER, INC., ET AL., ALSO ON WRIT OF CERTIORARI, 308
U.S. 545, TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 307 U.S. 620, TO REVIEW JUDGMENTS SETTING ASIDE TAX
LEVIES.  SEE ALSO, 254 APP. DIV. 246; 255 ID. 961; 4 N.Y.S.2D 615; 8
N.Y.S.2D 667. 

A STATE TAX IS VOID UNDER THE COMMERCE CLAUSE ONLY IF IN SOME WAY IT
INTERFERES WITH THE POWER OF CONGRESS TO REGULATE COMMERCE AMONG THE
SEVERAL STATES.  THAT IS A QUESTION OF FACT.  EACH STATUTE MUST BE
JUDGED UPON ITS OWN FACTS.  HUMP HAIRPIN CO. V. EMMERSON, 258 U.S. 290,
295; GREGG DYEING CO. V. QUERY, 286 U.S. 472, 481; WESTERN LIVE STOCK
V. BUREAU OF REVENUE, 303 U.S. 250, 259.  CF. GRAVES V. N.Y. EX REL.
O'KEEFE, 306 U.S. 466. 

THIS COURT HAS RECENTLY SUSTAINED A STATE TAX IN A CASE INVOLVING ONE
OF THESE RESPONDENTS, UNDER CIRCUMSTANCES IDENTICAL IN EVERY RESPECT
WITH THOSE HERE PRESENTED.  FELT & TARRANT MFG. CO. V. GALLAGHER, 306
U.S. 62, 64-66.  CF. SOUTHERN PACIFIC CO. V. GALLAGHER, 306 U.S. 167. 

IT IS APPARENT THAT BOTH THE CALIFORNIA AND THE NEW YORK TAXES ARE
UPON THE CONSUMER, BASED UPON HIS ACQUISITION OF PROPERTY FOR
CONSUMPTION.  THE NEW YORK TAX IS AS MUCH A "USE" TAX AS THE CALIFORNIA
TAX, AND THE CALIFORNIA TAX IS AS MUCH A "SALES" TAX AS THE NEW YORK
TAX.  BOTH ARE TAXES ON THE CONSUMER, BOTH REQUIRE COLLECTION BY THE
VENDOR, AND BOTH ARE OTHERWISE IDENTICAL IN SUBSTANCE AND PROCEDURE. 

UPON THE FACTS, THIS CASE IS INDISTINGUISHABLE FROM THE RECENT CASE
OF GRAYBAR ELECTRIC CO. V. CURRY, 308 U.S. 513. 

THE FACT THAT THE ORDERS FOR THE GOODS IN THESE TWO CASES MAY HAVE
BEEN ACCEPTED AT THE HOME OFFICE OF THE SELLERS IN OTHER STATES, DOES
NOT SUBJECT THE TRANSACTIONS TO THE DANGER OF A GREATER BURDEN THAN
THAT BORNE BY THE LOCAL TRANSACTIONS. 

THE ORDER IS MADE IN ONE STATE AND THE ACCEPTANCE TAKES PLACE IN
ANOTHER.  NEITHER ACTIVITY HAS ANY REALISTIC PHYSICAL RELATIONSHIP TO
ANY LOCALITY.  THE PURCHASER MIGHT SEND HIS ORDER BY MAIL DIRECTLY TO
ILLINOIS OR MASSACHUSETTS INSTEAD OF DELIVERING IT TO THE SELLER'S
LOCAL AGENT IN NEW YORK; OR THE SELLER MIGHT SEND THE ORDER BACK TO ITS
AGENT IN NEW YORK, WITH ITS APPROVAL, TO BE ACCEPTED IN NEW YORK BY ITS
AGENT.  ALL OF THESE ARE COMMON BUSINESS PRACTICES.  NO PART OF THE
MAKING OF THE 

BY ADMINISTRATIVE INTERPRETATION AND BY DECISION OF THE STATE COURT,
MERE CONTRACTS OF SALE OR THE TRANSFER OF TITLE WITHOUT TRANSFER OF
POSSESSION ARE NOT TAXED.  MATTER OF GUNTHER'S SONS V. MCGOLDRICK, 279
N.Y. 148.  THE TAX IS IMPOSED ONLY UPON LOCAL TRANSFERS OF TITLE AND
POSSESSION TO PURCHASERS. 

THE RULE AGAINST MULTIPLE TAXATION HAS APPLICATION ONLY WHERE THE
VALIDATION OF A PARTICULAR TAX WOULD NECESSARILY COMPEL THE VALIDATION
OF AN IDENTICAL TAX UPON THE IDENTICAL COUNTERPART OF THE IDENTICAL
TRANSACTION WHEN IMPOSED BY ANOTHER STATE.  THE FACT THAT SOME
DIFFERENT TAX MIGHT BE IMPOSED UPON A DIFFERENT TAXPAYER AND UPON A
DIFFERENT PHASE OF THE SAME TRANSACTION BY ANOTHER STATE, DOES NOT
SUBJECT INTERSTATE COMMERCE TO THE DANGER OF A BURDEN OF MULTIPLE
TAXATION NOT BORNE BY LOCAL COMMERCE.  THE REASON IS THAT IF SUCH TAX
IS VALID ITS BURDEN EXISTS INDEPENDENTLY OF THE IMPOSITION OF THE TAX
AT BAR, AND IS A BURDEN WHICH WILL BE EQUALLY BORNE BY LOCAL COMMERCE. 

AN APPORTIONED TAX ON THE MAKING OF CONTRACTS WOULD BE IDENTICAL IN
EFFECT WITH AN APPORTIONED GROSS RECEIPTS TAX.  EACH STATE WHERE SOME
PART OF THE ACTIVITY TOOK PLACE COULD IMPOSE AN APPORTIONED TAX UPON
THE TRANSACTION, AND LOCAL TRANSACTIONS WOULD BEAR THE SAME BURDEN AS
INTERSTATE TRANSACTIONS. 

THE SALES WERE NOT LOCAL AND ARE THEREFORE NOT INTENDED TO BE TAXED
BY THE NEW YORK LAW.  MATTER OF NATIONAL CASH REGISTER CO. V. TAYLOR,
276 N.Y. 208, 213-214, CERT. DEN., SUB NOM. MCGOLDRICK V. NATIONAL CASH
REGISTER CO., 303 U.S. 656. 

TAXATION OF THE SALES IS PROHIBITED BY THE COMMERCE CLAUSE.  CASES
SUPRA. 

SEE:  ROBBINS V. SHELBY COUNTY TAXING DISTRICT, 120 U.S. 489; STEWART
V. MICHIGAN, 232 U.S. 665; DOZIER V. ALABAMA, 218 U.S. 124; BRENNAN V.
TITUSVILLE, 153 U.S. 289; REARICK V. PENNSYLVANIA, 203 U.S. 507;
CRENSHAW V. ARKANSAS, 227 U.S. 389; CALDWELL V. NORTH CAROLINA, 187
U.S. 622; CHENEY BROS. V. MASSACHUSETTS, 246 U.S. 147; ALPHA CEMENT CO.
V. MASSACHUSETTS, 268 U.S. 203. 

THE COMMERCE CLAUSE PROTECTS ALL CONTRACTS, NEGOTIATIONS AND SALES OF
GOODS SHIPPED IN INTERSTATE COMMERCE.  FEDERAL TRADE COMMISSION V.
PACIFIC STATES PAPER TRADE ASSN., 273 U.S. 52, 64; REAL SILK MILLS V.
PORTLAND, 268 U.S. 325, 333; ROBBINS V. SHELBY COUNTY TAXING DISTRICT,
120 U.S. 489; STEWART V. MICHIGAN, 232 U.S. 665. 

WHERE GOODS ARE PURCHASED IN ONE STATE FOR TRANSPORTATION TO ANOTHER,
THE "COMMERCE" INCLUDES THE PURCHASE QUITE AS MUCH AS IT DOES THE
TRANSPORTATION.  CURRIN V. WALLACE, 306 U.S. 1, 10. 

WHERE COMMODITIES ARE BOUGHT FOR USE BEYOND STATE LINES, THE SALE IS
A PART OF INTERSTATE COMMERCE AND BOTH THE BUYING AND SELLING ARE
INTERSTATE COMMERCE AND ARE NOT SUBJECT TO STATE REGULATION.  UNITED
STATES V. ROCK ROYAL CO-OP., 307 U.S. 533, 569; DAHNKE-WALKER MILLING
CO. V. BONDURANT, 257 U.S. 282, 290, 291; LEMKE V. FARMER'S GRAIN CO.,
258 U.S. 50, 54-55; SHAFER V. FARMER'S GRAIN CO., 268 U.S. 189, 198
199; FEDERAL TRADE COMM'N V. PACIFIC STATES PAPER TRADE ASSN., 273 U.S.
52, 64; KIDD V. PEARSON, 128 U.S. 1, 20; SONNEBORN V. CURETON, 262 U.S.
506; WARE & LELAND V. MOBILE COUNTY, 209 U.S. 405; HIGHLAND FARMS DAIRY
V. AGNEW, 300 U.S. 608, 615. 

A STATE CAN NOT LAY A TAX ON INTERSTATE COMMERCE IN ANY FORM.  COONEY
V. MOUNTAIN STATES T. & T. CO., 294 U.S. 384, 392; HELSON V. KENTUCKY,
279 U.S. 245, 249; ALPHA CEMENT CO. V. MASSACHUSETTS, 268 U.S. 203;
NATIONAL LABOR RELATIONS BOARD V. FAINBLATT, 306 U.S. 601; GWIN, WHITE
& PRINCE, INC. V. HENNEFORD, 305 U.S. 434, 437; FOSTER PACKING CO. V.
HAYDEL, 278 U.S. 1, 10. 

THE NEW YORK CITY TAX, BY ERRONEOUS ADMINISTRATION, BECOMES A BURDEN
ON INTERSTATE COMMERCE.  IT MUST BE BORNE IN MIND THAT THE TAX IN THIS
CASE WAS IMPOSED UPON AND COLLECTED FROM A FOREIGN MANUFACTURER AND NOT
FROM A LOCAL PURCHASER IN NEW YORK CITY.  THE AMOUNT OF TAX PAYABLE BY
THE MANUFACTURER TO THE CITY DEPENDS ENTIRELY UPON THE AMOUNT OF
INTERSTATE BUSINESS DONE, NAMELY, 2% ON ALL GROSS SALES MADE IN NEW
YORK CITY.  IT IS THEREFORE A DIRECT CHARGE ON INTERSTATE BUSINESS AND
A BURDEN ON SUCH COMMERCE.  ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 311
312; GWIN, WHITE & PRINCE, INC. V. HENNEFORD, 305 U.S. 434; ANGLO
CHILEAN CORP. V. ALABAMA, 288 U.S. 218. 

THERE IS ALSO THE RISK OF MULTIPLE TAXATION.  GWIN, WHITE & PRINCE,
INC. V. HENNEFORD, 305 U.S. 434, 439-440. 

WHEN THE CITY OF NEW YORK COMPELS AN ILLINOIS CORPORATION, WHICH IS
NOT AUTHORIZED TO DO BUSINESS IN NEW YORK, TO ACT AS A COLLECTING
AGENCY FOR THE CITY, COMPELS IT TO FILE RETURNS, TO MAKE REPORTS, AND
TO INCUR SUBSTANTIAL ADDITIONAL COSTS AND EXPENSES, THE CITY IS
ATTEMPTING TO EXERCISE ITS SOVEREIGN POWERS BEYOND ITS JURISDICTION. 
THAT IT CAN NOT DO WITHOUT BURDENING INTERSTATE COMMERCE. 

INVALIDATION OF THIS TAX WOULD NOT CAUSE DISCRIMINATION AGAINST NEW
YORK MANUFACTURERS AND MERCHANTS. 

THE ORDERS FOR THE MACHINES WERE DIRECTED TO THE MANUFACTURER IN
ILLINOIS, AND THERE ACCEPTED OR REJECTED.  A MACHINE BY SERIAL NUMBER
WAS APPROPRIATED TO EACH ORDER IN ILLINOIS AND SHIPPED TO THE PURCHASER
IN NEW YORK.  THE PURCHASER WAS BILLED FROM CHICAGO AND REMITTED
DIRECTLY TO CHICAGO.  THUS THE ELEMENTS OF LOCAL SALES ARE LACKING. 

TESTING OF THE MACHINES BEFORE DELIVERY TO CUSTOMERS WAS IN
FURTHERANCE OF INTERSTATE COMMERCE.  DOZIER V. ALABAMA, 218 U.S. 124;
REARICK V. PENNSYLVANIA, 203 U.S. 507; CALDWELL V. NORTH CAROLINA, 187
U.S. 622; AND CRENSHAW V. ARKANSAS, 227 U.S. 289. 

THE TAX IS VIOLATIVE OF THE COMMERCE CLAUSE BECAUSE IT IMPOSES A
DIRECT AND IMMEDIATE BURDEN UPON TRANSACTIONS CONSTITUTING INTERSTATE
COMMERCE.  WHERE THE SUBJECT MATTER OF THE TAX IS SOME INTEGRAL PART OF
THE PROCESS OF INTERSTATE COMMERCE, THE STATE TAX IS BAD WITHOUT REGARD
TO DISCRIMINATION.  UPON THIS POINT THE DECISIONS OF THIS COURT HAVE
BEEN CONSISTENT FROM ROBBINS V. SHELBY COUNTY TAXING DISTRICT, 120 U.S.
489, TO THE RECENT DECISIONS IN ADAMS MFG. CO. V. STOREN, 304 U.S. 307,
AND GWIN, WHITE & PRINCE, INC. V. HENNEFORD, 305 U.S. 434.  U.S. GLUE
CO. V. TOWN OF OAK CREEK, 247 U.S. 321, 328; OZARK PIPE LINE CORP. V.
MONIER, 266 U.S. 555, 568(DISSENT); NASHVILLE, C. & ST. L. RY. CO. V.
WALLACE, 288 U.S. 267; COVERDALE V. ARKANSAS-LOUISIANA PIPE LINE CO.,
303 U.S. 604; CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292; SPALDING &
BROS. V. EDWARDS, 262 U.S. 66, 69; COONEY V. MOUNTAIN STATES TEL. CO.,
294 U.S. 384, 393. 

THE TAX IS VIOLATIVE OF THE COMMERCE CLAUSE BECAUSE IT EXPOSES THE
MANUFACTURER TO THE DANGER OF DOUBLE TAXATION ON THE SAME TRANSACTION. 
THE CONTRACT OF SALE WAS MADE IN MASSACHUSETTS AND IT IS BEYOND THE
POSSIBILITY OF DISPUTE THAT IT WOULD BE TAXABLE THERE. 

AS AN ECONOMIC FACT THE TAX IS DISCRIMINATORY AS AGAINST RESIDENTS OF
OTHER STATES AND TENDS SUBSTANTIALLY TO DISCOURAGE THE SALE OF VENDING
MACHINES IN INTERSTATE COMMERCE. 

IF A STATE WERE FREE TO TAX THE SALE OF GOODS IN INTERSTATE COMMERCE,
PROVIDED ONLY THAT IT TAXED ITS OWN IDENTICAL GOODS AT THE SAME RATE,
THE POWER COULD EASILY BE USED TO EXCLUDE GOODS OF A TYPE NOT LOCALLY
MANUFACTURED IN ORDER TO GIVE AN ADVANTAGE TO LOCAL MANUFACTURERS OF
GOODS WHICH COULD BE SUBSTITUTED FOR THEM. 

FELT & TARRANT MFG. CO. V. GALLAGHER, 306 U.S. 62, IS NOT ANALOGOUS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO MCGOLDRICK V. BERWIND-WHITE COAL MINING
CO., ANTE, P. 33.  AS IN THAT CASE THE QUESTION FOR DECISION IS WHETHER
THE NEW YORK CITY TAX LAID UPON SALES OF GOODS FOR CONSUMPTION AS
APPLIED TO RESPONDENTS INFRINGES THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION. 

UPON CERTIORARI TO REVIEW DETERMINATIONS BY THE COMPTROLLER OF THE
CITY OF NEW YORK, THAT EACH OF THE RESPONDENTS WAS SUBJECT TO THE TAX,
THE APPELLATE DIVISION OF THE NEW YORK SUPREME COURT SET THE LEVY
ASIDE.  MATTER OF FELT & TARRANT MFG. CO. V. TAYLOR, 254 APP. DIV. 246;
4 N.Y.S.2D 615; MATTER OF A.H. DUGRENIER, INC., 255 APP. DIV. 961; 8
N.Y.S.2D 667.  THE NEW YORK COURT OF APPEALS, WITHOUT OPINION, AFFIRMED
THE JUDGMENT IN EACH CASE, 279 N.Y. 678; 18 N.E.2D 311; 281 N.Y. 608;
22 N.E.2D 172, BUT BY ITS AMENDED REMITTITUR DECLARED THAT THE
AFFIRMANCE WAS UPON THE SOLE GROUND THAT THE TAX INFRINGED THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION, 280 N.Y. 688; 281 N.Y. 669.  THE
RELEVANT PROVISIONS OF THE TAXING ACT ARE SET OUT IN OUR OPINION IN THE
BERWIND-WHITE COMPANY CASE AND NEED NOT BE REPEATED HERE. 

RESPONDENT, FELT & TARRANT MFG. CO., AN ILLINOIS CORPORATION, WITH
ITS FACTORY AND PRINCIPAL PLACE OF BUSINESS IN THAT STATE, MANUFACTURES
AND SELLS ADDING AND CALCULATING MACHINES KNOWN AS COMPTOMETERS.  IT
MAINTAINS AN OFFICE IN NEW YORK CITY, FROM WHICH ITS AGENTS SOLICIT IN
THE CITY ORDERS FOR COMPTOMETERS, WHICH ARE FORWARDED TO THE ILLINOIS
OFFICE FOR APPROVAL.  IF ACCEPTED EACH ORDER IS FILLED BY ALLOCATING TO
IT THE PURCHASED COMPTOMETER DESIGNATED BY ITS SERIAL NUMBER.  IT IS
INVOICED TO THE PURCHASER AND SHIPPED TO THE NEW YORK CITY OFFICE OF
RESPONDENT'S SALES AGENT, WHERE IT IS INSPECTED, TESTED AND ADJUSTED,
AND THEN DELIVERED TO THE PURCHASER.  REMITTANCES ARE MADE BY THE
PURCHASER DIRECT TO THE ILLINOIS OFFICE.  THE COURSE OF BUSINESS IN
SOLICITING AND FILLING ORDERS SO FAR AS NOW MATERIAL IS THAT OF THE
SAME COMPANY, DESCRIBED IN FELT & TARRANT MFG. CO. V. GALLAGHER, 306
U.S. 62. 

RESPONDENT, DUGRENIER, INC., A MASSACHUSETTS CORPORATION WITH ITS
FACTORY AND PRINCIPAL OFFICE IN THAT STATE, IS ENGAGED IN THE
MANUFACTURE AND SALE OF AUTOMATIC VENDING MACHINES.  THEY ARE SOLD
THROUGHOUT THE UNITED STATES BY AN EXCLUSIVE SALES AGENT, THE
RESPONDENT STEWART & MCGUIRE, INC., HAVING AN OFFICE IN NEW YORK CITY. 
THE SALES IN THE CITY, WHEN NOT OF MACHINES LOCATED AT THE NEW YORK
OFFICE, ARE EFFECTED THROUGH SOLICITATIONS OF ORDERS BY THE AGENT,
WHICH TAKES FROM THE PROSPECTIVE PURCHASER A SIGNED ORDER OR A CONTRACT
FOR A CONDITIONAL SALE ON PARTIAL PAYMENT, WHICH IS FORWARDED BY THE
AGENT TO THE MASSACHUSETTS OFFICE.  IF ACCEPTED THERE THE ORDER IS
FILLED BY SHIPPING THE PURCHASED MACHINE BY RAIL OR TRUCK DIRECT TO THE
PURCHASER IN NEW YORK CITY, WHO PAYS THE FREIGHT. 

IN BOTH CASES THE TAX WAS IMPOSED ON ALL THE SALES OF MERCHANDISE FOR
WHICH ORDERS WERE TAKEN WITHIN THE CITY AND POSSESSION OF WHICH WAS
TRANSFERRED TO THE PURCHASER THERE.  DECISION IN BOTH IS CONTROLLED BY
OUR DECISION IN THE BERWIND-WHITE COMPANY CASE.  FOR REASONS STATED AT
LENGTH IN THE OPINION IN THAT CASE THE TAX SO LAID DOES NOT INFRINGE
THE COMMERCE CLAUSE.  THE JUDGMENTS WILL BE REVERSED AND THE CAUSES
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED.    THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS, AND MR. JUSTICE
ROBERTS DISSENT FROM THE JUDGMENTS IN THESE CASES UPON THE GROUNDS
STATED IN THE DISSENTING OPINION IN MCGOLDRICK V. BERWIND-WHITE COAL
MINING CO., ANTE, P. 59. 
..END :













MORGAN V. COMMISSIONER, 309 U.S. 78 


NO. 210.  ARGUED JANUARY 4, 5, 1940.  - DECIDED JANUARY 29, 1940.  - 103
F.2D 636, AFFIRMED. 


A DECEDENT IN WISCONSIN EXERCISED A POWER OF APPOINTMENT OVER PROPERTY
HELD IN TRUSTS CREATED UNDER THE LAW OF THAT STATE.  THE TRUSTS
EMPOWERED THE TRUSTEES TO WITHHOLD FROM ANY BENEFICIARY, PROPERTY WHICH
IN THEIR JUDGMENT WOULD BE DISSIPATED OR BE IMPROVIDENTLY HANDLED, AND
GAVE DIRECTIONS FOR DISPOSITION, IN SUCH EVENT, OF WHAT WAS WITHHELD. 
HELD: 

1.  THAT THE POWER EXERCISED WAS A "GENERAL POWER OF APPOINTMENT"
WITHIN SEC. 302(F) OF THE REVENUE ACT OF 1926, WHATEVER ITS
CHARACTERIZATION - WHETHER "GENERAL" OR "SPECIAL" - BY THE WISCONSIN
LAW.  P. 80. 

STATE LAW CREATES LEGAL INTERESTS AND RIGHTS.  THE FEDERAL REVENUE
ACTS DESIGNATE WHAT INTERESTS OR RIGHTS, SO CREATED, SHALL BE TAXED. 

2.  THE TERM "GENERAL POWER OF APPOINTMENT," AS USED IN THE FEDERAL
REVENUE ACTS, APPLIES WHERE THE DONEE MAY APPOINT TO ANY PERSON HE
CHOOSES, INCLUDING HIS OWN ESTATE OR HIS CREDITORS.  P. 81. 

THIS ACCORDS WITH COMMON ACCEPTATION AND WITH ADMINISTRATIVE
CONSTRUCTION APPROVED BY CONGRESSIONAL RE-ENACTMENTS OF THE PROVISIONS
CONSTRUED. 

3.  ASSUMING THAT THE TRUSTEES COULD WITHHOLD THE APPOINTED PROPERTY
FROM AN APPOINTEE, THE POWER MUST STILL BE HELD GENERAL.  THE IMPORTANT
CONSIDERATION IS THE BREADTH OF THE CONTROL IN THE DONEE OF THE POWER,
WHATEVER THE NATURE OR EXTENT OF THE APPOINTEE'S INTEREST.  P. 82. 

MORGAN, EXECUTOR, V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 308 U.S. 534, TO REVIEW AN AFFIRMANCE BY THE COURT BELOW
OF A DECISION OF THE BOARD OF TAX APPEALS (36 B.T.A. 588), APPROVING A
DEFICIENCY ASSESSMENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE TOOK THIS CASE BECAUSE IT RAISES AN IMPORTANT QUESTION AS TO THE
CONSTRUCTION OF THE REVENUE ACT OF 1926, SEC. 302(F), AMENDED BY THE
REVENUE ACT OF 1932, SEC. 803(B).  FN1 

THE QUESTION IS TO WHAT EXTENT AND IN WHAT SENSE THE LAW OF THE
DECEDENT'S DOMICILE GOVERNS IN DETERMINING WHETHER A POWER OF
APPOINTMENT EXERCISED BY HIM IS A GENERAL POWER WITHIN THE MEANING OF
THE STATUTE. 

THE PETITIONER IS THE EXECUTOR OF ELIZABETH S. MORGAN WHO WAS THE
DONEE OF TWO POWERS OF APPOINTMENT OVER PROPERTY HELD IN TWO TRUSTS
CREATED BY HER FATHER BY WILL AND BY DEED.  THE PERSONS NAMED ARE, OR
WERE, AT DEATH, CITIZENS OF WISCONSIN.  IT IS UNNECESSARY TO RECITE THE
TERMS OF THE TRUSTS.  SUFFICE IT TO SAY THAT UNDER EACH, PROPERTY
REMAINING IN THE TRUSTEES' HANDS FOR ELIZABETH S. MORGAN WAS GIVEN AT
HER DEATH, TO THE APPOINTEE OR APPOINTEES NAMED IN HER WILL, WITH GIFTS
OVER IN CASE SHE FAILED TO APPOINT.  UNDER BOTH TRUSTS, IF IN THE
JUDGMENT OF THE TRUSTEES, PROPERTY GOING TO ANY BENEFICIARY WOULD BE
DISSIPATED FOR ANY REASON, OR IMPROVIDENTLY HANDLED, THE TRUSTEES WERE
TO WITHHOLD ANY PART OF SUCH PROPERTY; WITH DIRECTIONS FOR DISPOSITION,
IN SUCH EVENT, OF WHAT WAS WITHHELD.  THE DECEDENT APPOINTED IN FAVOR
OF HER HUSBAND. 

THE COMMISSIONER RULED THAT THE VALUE OF THE APPOINTED PROPERTY
SHOULD BE INCLUDED IN THE GROSS ESTATE AND DETERMINED A TAX
DEFICIENCY.  THE BOARD OF TAX APPEALS APPROVED HIS ACTION.  FN2  THE
CIRCUIT COURT OF APPEALS AFFIRMED THE BOARD'S DECISION.  FN3 

ALTHOUGH, UNDER THE LAW OF WISCONSIN, THE DECEDENT COULD HAVE
APPOINTED ANYONE TO RECEIVE THE TRUST PROPERTY, INCLUDING HER ESTATE
AND HER CREDITORS, THE PETITIONER URGES THAT, BY STATUTE AND DECISION,
WISCONSIN HAS DEFINED AS SPECIAL A POWER SUCH AS SHE HELD.  FN4  THE
RESPONDENT URGES THAT THIS IS NOT A CORRECT INTERPRETATION OF THE STATE
LAW.  WE FIND IT UNNECESSARY TO RESOLVE THE ISSUE, SINCE WE HOLD THAT
THE POWERS ARE GENERAL WITHIN THE INTENT OF THE REVENUE ACT,
NOTWITHSTANDING THEY MAY BE CLASSIFIED AS SPECIAL BY THE LAW OF
WISCONSIN. 

STATE LAW CREATES LEGAL INTERESTS AND RIGHTS.  THE FEDERAL REVENUE
ACTS DESIGNATE WHAT INTERESTS OR RIGHTS, SO CREATED, SHALL BE TAXED. 
OUR DUTY IS TO ASCERTAIN THE MEANING OF THE WORDS USED TO SPECIFY THE
THING TAXED.  IF IT IS FOUND IN A GIVEN CASE THAT AN INTEREST OR RIGHT
CREATED BY LOCAL LAW WAS THE OBJECT INTENDED TO BE TAXED, THE FEDERAL
LAW MUST PREVAIL NO MATTER WHAT NAME IS GIVEN TO THE INTEREST OR RIGHT
BY STATE LAW.  FN5 

NONE OF THE REVENUE ACTS HAS DEFINED THE PHRASE "GENERAL POWER OF
APPOINTMENT."  THE DISTINCTION USUALLY MADE BETWEEN A GENERAL AND A
SPECIAL POWER LIES IN THE CIRCUMSTANCE THAT, UNDER THE FORMER, THE
DONEE MAY APPOINT TO ANYONE, INCLUDING HIS OWN ESTATE OR HIS CREDITORS,
THUS HAVING AS FULL DOMINION OVER THE PROPERTY AS IF HE OWNED IT;
WHEREAS, UNDER THE LATTER, THE DONEE MAY APPOINT ONLY AMONGST A
RESTRICTED OR DESIGNATED CLASS OF PERSONS OTHER THAN HIMSELF.  FN6 

WE SHOULD EXPECT, THEREFORE, THAT CONGRESS HAD THIS DISTINCTION IN
MIND WHEN IT USED THE ADJECTIVE "GENERAL."  THE LEGISLATIVE HISTORY
INDICATES THAT THIS IS SO.  FN7  THE TREASURY REGULATIONS HAVE PROVIDED
THAT A POWER IS WITHIN THE PURVIEW OF THE STATUTE, IF THE DONEE MAY
APPOINT TO ANY PERSON.  FN8 

WITH THESE REGULATIONS OUTSTANDING CONGRESS HAS SEVERAL TIMES
REENACTED SEC. 302(F), AND HAS THUS ADOPTED THE ADMINISTRATIVE
CONSTRUCTION.  THAT CONSTRUCTION IS IN ACCORD WITH THE OPINION OF
SEVERAL FEDERAL COURTS.  FN9 

THE PETITIONER CLAIMS, HOWEVER, THAT THE DECISION BELOW IS IN
CONFLICT WITH TWO BY OTHER CIRCUIT COURTS OF APPEAL.  FN10  THE
CONTENTION IS BASED ON CERTAIN PHRASES FOUND IN THE OPINIONS.  WE THINK
IT CLEAR THAT, IN BOTH CASES, THE COURTS EXAMINED THE LOCAL LAW TO
ASCERTAIN WHETHER A POWER WOULD BE CONSTRUED BY THE STATE COURT TO
PERMIT THE APPOINTMENT OF THE DONEE, HIS ESTATE OR HIS CREDITORS, AND
ON THE BASIS OF THE ANSWER TO THAT QUESTION DETERMINED WHETHER THE
POWER WAS GENERAL WITHIN THE INTENT OF THE FEDERAL ACT. 

AS THE DECEDENT IN THIS CASE COULD HAVE APPOINTED TO HER ESTATE, OR
TO HER CREDITORS, WE HOLD THAT SHE HAD A GENERAL POWER WITHIN THE
MEANING OF SEC. 302(F).  THIS CONCLUSION IS NOT INCONSISTENT WITH
AUTHORITIES ON WHICH THE PETITIONER RELIES,  FN11  HOLDING THAT, IN THE
APPLICATION OF A FEDERAL REVENUE ACT, STATE LAW CONTROLS IN DETERMINING
THE NATURE OF THE LEGAL INTEREST WHICH THE TAXPAYER HAD IN THE PROPERTY
OR INCOME SOUGHT TO BE REACHED BY THE STATUTE. 

THE PETITIONER'S SECOND POSITION IS THAT, INASMUCH AS THE TRUSTEES
HAD AN UNFETTERED DISCRETION TO WITHHOLD PRINCIPAL OR INCOME FROM ANY
BENEFICIARY, THEY COULD EXERCISE THEIR DISCRETION AS RESPECTS ANY
APPOINTEE OF THE DECEDENT.  THIS FACT, THEY SAY, RENDERS THE POWER A
SPECIAL ONE.  ASSUMING THAT THE TRUSTEES COULD WITHHOLD THE APPOINTED
PROPERTY FROM AN APPOINTEE, WE THINK THE POWER MUST STILL BE HELD
GENERAL.  THE QUANTUM OR CHARACTER OF THE INTEREST APPOINTED, OR THE
CONDITIONS IMPOSED BY THE TERMS OF THE TRUST UPON ITS ENJOYMENT, DO NOT
RENDER THE POWERS IN QUESTION SPECIAL WITHIN THE PURPORT OF SEC.
302(F).  THE IMPORTANT CONSIDERATION IS THE BREADTH OF THE CONTROL THE
DECEDENT COULD EXERCISE OVER THE PROPERTY, WHATEVER THE NATURE OR
EXTENT OF THE APPOINTEE'S INTEREST. 

THE JUDGMENT IS AFFIRMED. 

FN1  44 STAT. 9, 71, 47 STAT. 169, 279; 26 U.S.C. SEC. 411. 

"SEC. 302.  THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE
DETERMINED BY INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL
PROPERTY, REAL OR PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED
 

     .         .         .      .         . 

"(F)  TO THE EXTENT OF ANY PROPERTY PASSING UNDER A GENERAL POWER OF
APPOINTMENT EXERCISED BY THE DECEDENT (1) BY WILL, OR (2) BY DEED
EXECUTED IN CONTEMPLATION OF OR INTENDED TO TAKE EFFECT IN POSSESSION
OR ENJOYMENT AT OR AFTER HIS DEATH,  ...  EXCEPT IN CASE OF A BONA FIDE
SALE FOR AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH;
..." 

FN2  36 B.T.A. 588. 

FN3  103 F.2D 636. 

FN4  "SEC.  232.05:  GENERAL POWER.  A POWER IS GENERAL WHEN IT
AUTHORIZES THE ALIENATION IN FEE, BY MEANS OF A CONVEYANCE, WILL, OR
CHARGE OF THE LANDS EMBRACED IN THE POWER, TO ANY ALIENEE WHATEVER. 

"232.06.  SPECIAL POWER.  A POWER IS SPECIAL:  (1)  WHEN THE PERSON OR
CLASS OF PERSONS TO WHOM THE DISPOSITION OF THE LANDS UNDER THE POWER
TO BE MADE ARE DESIGNATED.  (2)  WHEN THE POWER AUTHORIZES THE
ALIENATION BY MEANS OF A CONVEYANCE, WILL, OR CHARGE OF A PARTICULAR
ESTATE OR INTEREST LESS THAN A FEE." 

SEE WILL OF ZWEIFEL, 194 WIS. 428; 216 N.W. 840; CAWKER V. DREUTZER,
197 WIS. 98; 221 N.W. 401. 

FN5  BURNET V. HARMEL, 287 U.S. 103, 110; BANKERS COAL CO. V. BURNET,
287 U.S. 308, 310; PALMER V. BENDER, 287 U.S. 551, 555; THOMAS V.
PERKINS, 301 U.S. 655, 659; HEINER V. MELLON, 304 U.S. 271, 279; LYETH
V. HOEY, 305 U.S. 188, 193. 

FN6  SUGDEN ON POWERS (8TH ED.), P. 394; FARWELL ON POWERS (2D ED.),
P. 7. 

FN7  HOUSE REP. NO. 767, 65TH CONG., 2ND SESS., PP. 21-22. 

FN8  REGULATIONS 63(1922 ED.), ART. 25; REGULATIONS 68(1924 ED.),
ART. 24; REGULATIONS 70(1926 AND 1929 EDS.), ART. 24; REGULATIONS
80(1934 ED.), ART. 24. 

FN9  FIDELITY-PHILADELPHIA TRUST CO. V. MCCAUGHN, 34 F.2D 600;
STRATTON V. UNITED STATES, 50 F.2D 48; OLD COLONY TRUST CO. V.
COMMISSIONER, 73 F.2D 970; JOHNSTONE V. COMMISSIONER, 76 F.2D 55. 

FN10  WHITLOCK-ROSE V. MCCAUGHN, 21 F.2D 164; LESER V. BURNET, 46
F.2D 756. 

FN11  POE V. SEABORN, 282 U.S. 101; FREULER V. HELVERING, 291 U.S.
35; BLAIR V. COMMISSIONER, 300 U.S. 5; LANG V. COMMISSIONER, 304 U.S.
264. 
..END :








MADDEN V. KENTUCKY, 309 U.S. 83 


NO. 92.  ARGUED DECEMBER 14, 1939.  - DECIDED JANUARY 29, 1940.  - 277
KY. 343 - 126 S.W.2D 463, AFFIRMED. 


1.  A STATUTE BY WHICH A STATE TAXED DEPOSITS IN BANKS OUTSIDE OF THE
STATE AT FIFTY CENTS PER HUNDRED DOLLARS AND DEPOSITS IN BANKS WITHIN
THE STATE AT TEN CENTS PER HUNDRED DOLLARS, HELD CONSISTENT WITH THE
DUE PROCESS, EQUAL PROTECTION AND PRIVILEGES AND IMMUNITIES CLAUSES OF
THE FOURTEENTH AMENDMENT.  P. 86. 

2.  IN TAXATION, EVEN MORE THAN IN OTHER FIELDS, LEGISLATURES POSSESS
THE GREATEST FREEDOM IN CLASSIFICATION.  THE PRESUMPTION OF
CONSTITUTIONALITY CAN BE OVERCOME ONLY BY THE MOST EXPLICIT
DEMONSTRATION THAT A CLASSIFICATION IS A HOSTILE AND OPPRESSIVE
DISCRIMINATION AGAINST PARTICULAR PERSONS AND CLASSES.  P. 87. 

3.  THE TREATMENT ACCORDED THE TWO KINDS OF DEPOSITS IN THIS CASE MAY
HAVE RESULTED FROM THE DIFFERENCES IN THE DIFFICULTIES AND EXPENSES OF
TAX COLLECTION.  P. 89. 

4.  THE RIGHT TO CARRY OUT AN INCIDENT TO A TRADE, BUSINESS OR
CALLING, SUCH AS THE DEPOSIT OF MONEY IN BANKS, IS NOT A PRIVILEGE OF
NATIONAL CITIZENSHIP, PROTECTED BY THE PRIVILEGES AND IMMUNITIES CLAUSE
OF THE FOURTEENTH AMENDMENT.  HAGUE V. C.I.O., 307 U.S. 496, EXPOUNDED;
COLGATE V. HARVEY, 296 U.S. 404, IN PART OVERRULED.  P. 90. 

MADDEN, EXECUTOR, V. KENTUCKY, BY REEVES, COMMISSIONER OF REVENUE. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

APPEAL FROM A JUDGMENT SUSTAINING THE ASSESSMENT AND TAXATION OF A
DECEDENT'S BANK DEPOSITS, IN A SUIT AGAINST THE EXECUTOR OF HIS WILL IN
THE NAME OF THE COMMONWEALTH OF KENTUCKY. 

THE PRIVILEGES AND IMMUNITIES OF A CITIZEN OF THE UNITED STATES ARE
ABRIDGED BY THIS STATUTE.  COLGATE V. HARVEY, 296 U.S. 404; PENDLETON
V. COMMONWEALTH, 110 VA. 229; CAMPBELL V. WATSON, 62 N.J. EQ. 396; CF.
THOMPSON V. RIGGS, 5 WALL.  663, 680. 

IF CONVENIENCE IN COLLECTION JUSTIFIES A MORE BURDENSOME TAX UPON
BUSINESS DONE OR PROPERTY HELD OUTSIDE THE STATE, THEN THE STATE MAY
(1) REQUIRE ITS CITIZENS TO PAY A HIGHER RATE OF INCOME TAX ON BUSINESS
DONE OUTSIDE THE STATE; (2) REQUIRE HIGHER INHERITANCE TAXES TO BE PAID
ON PROPERTY OWNED BY ITS CITIZENS AND SITUATED OUTSIDE THE STATE; (3)
REQUIRE THE PAYMENT OF TAXES AT A HIGHER RATE ON BONDS OF CORPORATIONS
ORGANIZED UNDER THE LAWS OF OTHER STATES, ON THE GROUND THAT IT COULD
REQUIRE REPORTS TO BE MADE BY CORPORATIONS ORGANIZED UNDER ITS OWN
LAWS; AND (4) REQUIRE HIGHER TAXES TO BE PAID UPON INDEBTEDNESS OWING
TO ITS CITIZENS BY NON-RESIDENT DEBTORS.  THE VICE OF SUCH
DISCRIMINATION IS THAT IT PENALIZES THE CITIZEN FOR ENGAGING IN
BUSINESS IN OTHER STATES. 

STATE LEGISLATION WHICH UNDERTAKES TO LOCALIZE MODERN BANKING,
DESTROYS ITS NATIONAL FUNCTION AND UTILITY. 

THE TAX CAN NOT (CONSISTENTLY WITH THE FOURTEENTH AMENDMENT) BE
JUSTIFIED ON THE GROUND THAT THE LEGISLATURE MAY HAVE HOPED THEREBY TO
INCREASE THE BUSINESS OF LOCAL BANKS OR TO STIMULATE BUSINESS WITHIN
THE STATE.  COLGATE CASE, SUPRA. 

IN GREAT A. & P. TEA CO. V. KENTUCKY TAX COMM'R, 278 KY. 367, THE
KENTUCKY COURT SAID THAT THE ACT MUST BE CONSIDERED STRICTLY AS A
REVENUE MEASURE. 

THE STATUTE DENIES TO THE EXECUTOR THE EQUAL PROTECTION OF THE LAWS
AND DEPRIVES HIM OF HIS LIBERTY AND PROPERTY WITHOUT DUE PROCESS OF
LAW. 

FOR PURPOSES OF TAXATION, THE SITUS OF THE DEPOSITS IN BANKS OUTSIDE
THE STATE IS AT THE RESIDENCE OF THE TAXPAYER, AS IN THE CASE OF
DEPOSITS IN BANKS WITHIN THE STATE.  THUS, THERE IS NO DIFFERENCE IN
THE LOCATION OF THE TAXABLE PROPERTY. 

THE ONLY DIFFERENCE BETWEEN THE TWO IS THE RESIDENCE OF THE DEBTOR
BANKS.  THE SITUATION IS THE SAME AS IF KENTUCKY REQUIRED ITS CITIZENS
TO PAY TAXES OF A GROSSLY DISCRIMINATORY RATE UPON ALL OBLIGATIONS
OWING TO ITS CITIZENS BY NON-RESIDENT DEBTORS. 

THE DIFFERENCE (FIVE FOLD) IS SO GREAT AS TO MANIFEST AN INTENTION
ABSOLUTELY TO PROHIBIT ALL DEPOSITS IN BANKS OUTSIDE THE STATE.  CF.
ROYSTER GUANO CO. V. VIRGINIA, 253 U.S. 412, 415. 

BUT IF THE DISCRIMINATION CAN BE JUSTIFIED UPON THE GROUND OF
CONVENIENCE, THEN THERE IS NO CONSTITUTIONAL INHIBITION AGAINST A STATE
TAX AT A DISCRIMINATORY OR PROHIBITIVE RATE ON DEPOSITS IN NATIONAL
BANKS WITHIN THAT STATE, OR A TAX ON DEPOSITS IN CITY BANKS AT A HIGHER
RATE THAN THAT APPLIED TO DEPOSITS IN COUNTRY BANKS, OR A TAX AT A
LOWER RATE ON INTANGIBLE PROPERTY OWNED BY DOMESTIC CORPORATIONS THAN
ON THAT OWNED BY FOREIGN CORPORATIONS.  SEE LOUISVILLE GAS CO. V.
COLEMAN, 277 U.S. 32; ROYSTER GUANO CO. V. VIRGINIA, SUPRA; ALLGEYER V.
LOUISIANA, 165 U.S. 578. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL  FN1 BROUGHT HERE UNDER SEC. 237(A) OF THE JUDICIAL
CODE FROM A JUDGMENT OF THE COURT OF APPEALS OF KENTUCKY SUSTAINING THE
VALIDITY OF A STATUTE OF THAT STATE AGAINST AN ATTACK BY THE APPELLANT
ON THE GROUND OF ITS BEING REPUGNANT TO THE DUE PROCESS, EQUAL
PROTECTION, AND PRIVILEGES AND IMMUNITIES CLAUSES OF THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. 

THE ISSUE IS WHETHER A STATE STATUTE WHICH IMPOSES ON ITS CITIZENS AN
ANNUAL AD VALOREM TAX ON THEIR DEPOSITS IN BANKS OUTSIDE OF THE STATE
AT THE RATE OF FIFTY CENTS PER HUNDRED DOLLARS AND AT THE SAME TIME
IMPOSES ON THEIR DEPOSITS IN BANKS LOCATED WITHIN THE STATE A SIMILAR
AD VALOREM TAX AT THE RATE OF TEN CENTS PER HUNDRED DOLLARS IS
OBNOXIOUS TO THE STATED CLAUSES OF THE FOURTEENTH AMENDMENT.  THE
RELEVANT PROVISIONS OF THE KENTUCKY STATUTES FOR THE PERIOD IN QUESTION
APPEAR IN THE NOTE BELOW.  FN2 

THE OPINION OF THE COURT OF APPEALS OF KENTUCKY IN THIS CASE
CONSTRUES THE EXCEPTION IN SEC. 4019, LIMITING THE TAX ON BANK DEPOSITS
TO ONE-TENTH OF ONE PER CENT, AS APPLICABLE ONLY TO DEPOSITORS IN LOCAL
FINANCIAL INSTITUTIONS ORGANIZED UNDER THE LAWS OF KENTUCKY OR UNDER
THE NATIONAL BANKING LAWS.  THIS INTERPRETATION OF THE STATE LAWS IS OF
COURSE ACCEPTED BY US.  FN3 

JOHN E. MADDEN DIED IN NOVEMBER, 1929, A CITIZEN AND RESIDENT OF
FAYETTE COUNTY, KENTUCKY.  ON SEVERAL PRIOR ASSESSMENT DATES, JULY 1 IN
KENTUCKY, MR. MADDEN HAD ON DEPOSIT IN NEW YORK BANKS A CONSIDERABLE
AMOUNT OF FUNDS.  THESE DEPOSITS HAD NOT BEEN REPORTED FOR THE PURPOSES
OF TAXATION IN KENTUCKY.  THAT STATE BROUGHT SUIT AGAINST MR. MADDEN'S
EXECUTOR TO HAVE THESE DEPOSITS ASSESSED AS OMITTED PROPERTY AND TO
RECOVER AN AD VALOREM TAX OF 50 CENTS PER HUNDRED DOLLARS AS OF JULY 1
OF EACH YEAR, TOGETHER WITH INTEREST AND PENALTIES.  THE EXECUTOR USED
AS ONE DEFENSE AGAINST THIS CLAIM THE CONTENTION THAT A TAX ON DEPOSITS
IN BANKS OUTSIDE OF KENTUCKY AT A HIGHER RATE THAN THE TAX UPON BANK
DEPOSITS WITHIN KENTUCKY WOULD ABRIDGE DECEDENT'S PRIVILEGES AND
IMMUNITIES AS A CITIZEN OF THE UNITED STATES, DEPRIVE HIM OF HIS
PROPERTY RIGHT AND THE LIBERTY TO KEEP MONEY ON DEPOSIT OUTSIDE OF
KENTUCKY WITHOUT DUE PROCESS OF LAW, AND DENY TO HIM EQUAL PROTECTION
OF THE LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  THE COURT OF
APPEALS PASSED UPON THE CONSTITUTIONAL QUESTIONS SUBMITTED BECAUSE OF
THE DIFFERENCE IN TAXING RATE BETWEEN KENTUCKY DEPOSITS AND OUT-OF
STATE DEPOSITS.  IT APPROVED THE CLASSIFICATION AS PERMISSIBLE UNDER
THE DUE PROCESS AND EQUAL PROTECTION CLAUSES AND REFUSED TO ACCEPT THE
ARGUMENT THAT ITS INTERPRETATION OF THE STATUTES VIOLATED THE
PRIVILEGES AND IMMUNITIES CLAUSE. 

I. CLASSIFICATION.  - THE BROAD DISCRETION AS TO CLASSIFICATION
POSSESSED BY A LEGISLATURE IN THE FIELD OF TAXATION HAS LONG BEEN
RECOGNIZED.  FN4  THIS COURT FIFTY YEARS AGO CONCLUDED THAT "THE
FOURTEENTH AMENDMENT WAS NOT INTENDED TO COMPEL THE STATE TO ADOPT AN
IRON RULE OF EQUAL TAXATION,"  FN5  AND THE PASSAGE OF TIME HAS ONLY
SERVED TO UNDERSCORE THE WISDOM OF THAT RECOGNITION OF THE LARGE AREA
OF DISCRETION WHICH IS NEEDED BY A LEGISLATURE IN FORMULATING SOUND TAX
POLICIES.  TRADITIONALLY CLASSIFICATION HAS BEEN A DEVICE FOR FITTING
TAX PROGRAMS TO LOCAL NEEDS AND USAGES IN ORDER TO ACHIEVE AN EQUITABLE
DISTRIBUTION OF THE TAX BURDEN.  IT HAS, BECAUSE OF THIS, BEEN POINTED
OUT THAT IN TAXATION, EVEN MORE THAN IN OTHER FIELDS, LEGISLATURES
POSSESS THE GREATEST FREEDOM IN CLASSIFICATION.  FN6  SINCE THE MEMBERS
OF A LEGISLATURE NECESSARILY ENJOY A FAMILIARITY WITH LOCAL CONDITIONS
WHICH THIS COURT CANNOT HAVE, THE PRESUMPTION OF CONSTITUTIONALITY CAN
BE OVERCOME ONLY BY THE MOST EXPLICIT DEMONSTRATION THAT A
CLASSIFICATION IS A HOSTILE AND OPPRESSIVE DISCRIMINATION AGAINST
PARTICULAR PERSONS AND CLASSES.  FN7  THE BURDEN IS ON THE ONE
ATTACKING THE LEGISLATIVE ARRANGEMENT TO NEGATIVE EVERY CONCEIVABLE
BASIS WHICH MIGHT SUPPORT IT.  FN8 

PAYING PROPER REGARD TO THE SCOPE OF A LEGISLATURE'S POWERS IN THESE
MATTERS, THE INSUBSTANTIALITY OF APPELLANT'S CLAIM THAT HE HAS BEEN
DENIED EQUAL PROTECTION OR DUE PROCESS OF LAW BY THE CLASSIFICATION IS
AT ONCE APPARENT.  WHEN THESE STATUTES WERE ADOPTED IN 1917 DURING A
GENERAL REVISION OF KENTUCKY'S TAX LAWS, THE CHIEF PROBLEM FACING THE
LEGISLATURE WAS THE FORMULATION OF AN ENFORCEABLE SYSTEM OF INTANGIBLE
TAXATION.  FN9  BY PLACING THE DUTY OF COLLECTION ON LOCAL BANKS, THE
TAX ON LOCAL DEPOSITS WAS MADE ALMOST SELF-ENFORCING.  THE TAX ON
DEPOSITS OUTSIDE THE STATE, HOWEVER, STILL RESEMBLED THAT ON
INVESTMENTS IN WATSON V. STATE COMPTROLLER, THE COLLECTION OF WHICH WAS
SAID TO DEPEND "EITHER UPON (THE TAXPAYER'S) WILL OR UPON THE VIGILANCE
AND DISCRETION OF THE LOCAL ASSESSORS."  FN10  HERE AS IN THE WATSON
CASE THE CLASSIFICATION MAY HAVE BEEN "FOUNDED IN 'THE PURPOSES AND
POLICY OF TAXATION.'"  THE TREATMENT ACCORDED THE TWO KINDS OF DEPOSITS
MAY HAVE RESULTED FROM THE DIFFERENCES IN THE DIFFICULTIES AND EXPENSES
OF TAX COLLECTION.  FN11 

II.  PRIVILEGES AND IMMUNITIES.  - THE APPELLANT PRESSES URGENTLY
UPON US THE ARGUMENT THAT THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES  FN12
FORBIDS THE ENFORCEMENT BY THE COMMONWEALTH OF KENTUCKY OF THIS
ENACTMENT WHICH IMPOSES UPON THE TESTATOR TAXES FIVE TIMES AS GREAT ON
MONEY DEPOSITED IN BANKS OUTSIDE THE STATE AS IT DOES ON MONEY OF
OTHERS DEPOSITED IN BANKS WITHIN THE STATE.  THE PRIVILEGE OR IMMUNITY
WHICH APPELLANT CONTENDS IS ABRIDGED IS THE RIGHT TO CARRY ON BUSINESS
BEYOND THE LINES OF THE STATE OF HIS RESIDENCE, A RIGHT CLAIMED AS
APPERTAINING TO NATIONAL CITIZENSHIP. 

THERE IS NO OCCASION TO ATTEMPT AGAIN AN EXPOSITION OF THE VIEWS OF
THIS COURT AS TO THE PROPER LIMITATIONS OF THE PRIVILEGES AND
IMMUNITIES CLAUSE.  THERE IS A VERY RECENT DISCUSSION IN HAGUE V.
C.I.O.  FN13  THE APPELLANT PURPORTS TO ACCEPT AS SOUND THE POSITION
STATED AS THE VIEW OF ALL THE JUSTICES CONCURRING IN THE HAGUE
DECISION.  THIS POSITION IS THAT THE PRIVILEGES AND IMMUNITIES CLAUSE
PROTECTS ALL CITIZENS AGAINST ABRIDGEMENT BY STATES OF RIGHTS OF
NATIONAL CITIZENSHIP AS DISTINCT FROM THE FUNDAMENTAL OR NATURAL RIGHTS
INHERENT IN STATE CITIZENSHIP.  FN14  THIS COURT DECLARED IN THE
SLAUGHTER-HOUSE CASES  FN15 THAT THE FOURTEENTH AMENDMENT AS WELL AS
THE THIRTEENTH AND FIFTEENTH WERE ADOPTED TO PROTECT THE NEGROES IN
THEIR FREEDOM.  THIS ALMOST CONTEMPORANEOUS INTERPRETATION EXTENDED THE
BENEFITS OF THE PRIVILEGES AND IMMUNITIES CLAUSE TO OTHER RIGHTS WHICH
ARE INHERENT IN NATIONAL CITIZENSHIP BUT DENIED IT TO THOSE WHICH
SPRING FROM STATE CITIZENSHIP.  FN16  IN APPLYING THIS CONSTITUTIONAL
PRINCIPLE THIS COURT HAS DETERMINED THAT THE RIGHT TO OPERATE AN
INDEPENDENT SLAUGHTER-HOUSE,  FN17  TO SELL WINE ON TERMS OF EQUALITY
WITH GRAPE GROWERS  FN18  AND TO OPERATE BUSINESSES FREE OF STATE
REGULATION  FN19 WERE NOT PRIVILEGES AND IMMUNITIES PROTECTED BY THE
FOURTEENTH AMENDMENT.  AND A STATE INHERITANCE TAX STATUTE WHICH
LIMITED EXEMPTIONS TO CHARITABLE CORPORATIONS WITHIN THE STATE WAS HELD
NOT TO INFRINGE ANY RIGHT PROTECTED BY THE PRIVILEGES AND IMMUNITIES
CLAUSE.  FN20  THE COURT HAS CONSISTENTLY REFUSED TO LIST COMPLETELY
THE RIGHTS WHICH ARE COVERED BY THE CLAUSE, THOUGH IT HAS POINTED OUT
THE TYPE OF RIGHTS PROTECTED.  FN21  WE THINK IT QUITE CLEAR THAT THE
RIGHT TO CARRY OUT AN INCIDENT TO A TRADE, BUSINESS OR CALLING  FN22
SUCH AS THE DEPOSIT OF MONEY IN BANKS IS NOT A PRIVILEGE OF NATIONAL
CITIZENSHIP. 

IN THE STATES, THERE REPOSES THE SOVEREIGNTY TO MANAGE THEIR OWN
AFFAIRS EXCEPT ONLY AS THE REQUIREMENTS OF THE CONSTITUTION OTHERWISE
PROVIDE.  WITHIN THESE CONSTITUTIONAL LIMITS THE POWER OF THE STATE
OVER TAXATION IS PLENARY.  AN INTERPRETATION OF THE PRIVILEGES AND
IMMUNITIES CLAUSE WHICH RESTRICTS THE POWER OF THE STATES TO MANAGE
THEIR OWN FISCAL AFFAIRS IS A MATTER OF GRAVEST CONCERN TO THEM.  FN23
IT IS ONLY THE EMPHATIC REQUIREMENTS OF THE CONSTITUTION WHICH PROPERLY
MAY LEAD THE FEDERAL COURTS TO SUCH A CONCLUSION. 

APPELLANT RELIES UPON COLGATE V. HARVEY  FN24  AS A PRECEDENT TO
SUPPORT HIS ARGUMENT THAT THE PRESENT STATUTE IS NOT WITHIN THE LIMITS
OF PERMISSIBLE CLASSIFICATION AND VIOLATES THE PRIVILEGES AND
IMMUNITIES CLAUSE.  IN VIEW OF OUR CONCLUSIONS, WE LOOK UPON THE
DECISION IN THAT CASE AS REPUGNANT TO THE LINE OF REASONING ADOPTED
HERE.  AS A CONSEQUENCE, COLGATE V. HARVEY MUST BE AND IS OVERRULED. 
AFFIRMED. 

FN1  SEE ACT OF JANUARY 31, 1928, 45 STAT. 54. 

FN2  CARROLL'S KENTUCKY STATUTES, BALDWIN'S REVISION, 1930, SEC.
4019A-10, P. 2052(KY. ACTS, 1924, CH. 116, SEC. 3) PROVIDES: 

"ALL PROPERTY SUBJECT TO TAXATION FOR STATE PURPOSES SHALL BE SUBJECT
ALSO TO TAXATION IN THE COUNTY, CITY, SCHOOL, OR OTHER TAXING DISTRICT
IN WHICH SAME HAS A TAXABLE SITUS, EXCEPT THE FOLLOWING CLASSES OF
PROPERTY WHICH SHALL BE SUBJECT TO TAXATION FOR STATE PURPOSES ONLY: 

.         .         .         .         . 

"(4)  MONEY IN HAND, NOTES, BONDS, ACCOUNTS AND OTHER CREDITS,
WHETHER SECURED BY MORTGAGE, PLEDGE, OR OTHERWISE, OR UNSECURED, AND
SHARES OF STOCK; ...  " 

CARROLL'S KENTUCKY STATUTES, BALDWIN'S REVISION 1930, SEC. 4019, P.
2048(KY. ACTS 1924, CH. 116, SEC. 1, P. 402, AS REENACTED IN KY. ACTS
1926, CH. 164, P. 739), PROVIDES AS FOLLOWS: 

"AN ANNUAL AD VALOREM TAX FOR STATE PURPOSES OF THIRTY CENTS (30[)
CENTS UPON EACH $100) SHALL BE PAID ANNUALLY UPON THE AMOUNT OF
DIRECTED TO BE ASSESSED FOR TAXATION, AS PROVIDED BY LAW AND FIFTY
CENTS (50[) UPON EACH ONE HUNDRED DOLLARS ($100.00) OF VALUE OF ALL
OTHER PROPERTY DIRECTED TO BE ASSESSED FOR TAXATION, AS PROVIDED BY
LAW, SHALL BE PAID BY THE OWNER, PERSON OR CORPORATION ASSESSED; EXCEPT
A TAX AT THE RATE OF ONE-TENTH OF ONE PERCENT (0.1%)(I.E., 10 CENTS
UPON EACH $100) SHALL BE PAID ANNUALLY UPON THE AMOUNT OF DEPOSITS IN
ANY BANK, TRUST COMPANY, OR COMBINED BANK AND TRUST COMPANY, ORGANIZED
UNDER THE LAWS OF THIS STATE, OR IN ANY NATIONAL BANK OF THIS STATE AS
NOW PROVIDED BY LAW; ...  "    FN3  ST. LOUIS S.W. RY. CO. V. ARKANSAS,
235 U.S. 350, 362; STORAASLI V. MINNESOTA, 283 U.S. 57, 62. 

FN4  NEW YORK RAPID TRANSIT CORP. V. NEW YORK, 303 U.S. 573, AND
CASES THERE CITED. 

FN5  BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 237. 

FN6  CITIZENS' TELEPHONE CO. V. FULLER, 229 U.S. 322, 329.    FN7
SEE THE OPINION OF MR. JUSTICE BRANDEIS IN LOUISVILLE GAS & ELECTRIC
CO. V. COLEMAN, 277 U.S. 32, 42, 46-47. 

FN8  LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-79. 

FN9  BECAUSE OF A PROHIBITION IN THE KENTUCKY CONSTITUTION OF 1891
AGAINST CLASSIFICATION IN TAXATION, THE STATE AND ITS POLITICAL
SUBDIVISIONS TAXED INTANGIBLES AT THE SAME RATE AS OTHER PROPERTY. 
THIS RESULTED IN A TOTAL TAX OF ABOUT $2.65 PER HUNDRED DOLLARS ON
INTANGIBLES, A TAX WHICH IN THE CASE OF BANK DEPOSITS ALMOST EQUALED
THE INTEREST ON DEPOSITS.  THE HIGH RATE LED TO WIDESPREAD EVASION OF
THE TAX BY CONCEALMENT OF INTANGIBLES; WITH BANK DEPOSITS THIS TOOK THE
FORM OF WITHDRAWALS FOR DEPOSITS OUTSIDE THE STATE.  THE UNEQUAL BURDEN
WHICH THIS EVASION PLACED ON OTHER FORMS OF PROPERTY LED TO AGITATION
FOR REFORM AS EARLY AS 1908.  TWO SPECIAL TAX COMMISSIONS REPORTED ON
THE NEED FOR A CONSTITUTIONAL AMENDMENT AND A GENERAL TAX REFORM. 
AFTER AN AMENDMENT PERMITTING CLASSIFICATION WAS ADOPTED IN 1916, A
THIRD COMMITTEE MADE SPECIFIC PROPOSALS FOR REVISION, AND MOST OF THE
RECOMMENDATIONS WERE ADOPTED AT A SPECIAL LEGISLATIVE SESSION IN 1917. 
SEE THE MESSAGE OF GOVERNOR STANLEY TO THE GENERAL ASSEMBLY OF 1917,
KENTUCKY SENATE JOURNAL OF 1917, P. 13.  IN GENERAL THE REVISION TOOK
THE FORM OF A DRASTIC LOWERING OF THE RATES ON INTANGIBLES.  AN EVEN
LOWER RATE WAS PLACED ON BANK DEPOSITS AND ALMOST COMPLETE COLLECTION
ASSURED BY PLACING THE DUTY OF COLLECTION ON THE BANKS. 

THE STUDIES WHICH LED TO THE GENERAL REVISION OF 1917 MAY BE FOUND IN
REPORT OF THE KENTUCKY TAX COMMISSION FOR 1909; REPORT OF THE SPECIAL
TAX COMMISSION OF KENTUCKY FOR 1912-14; REPORT OF THE KENTUCKY TAX
COMMISSION FOR 1916.  A CAREFUL EXAMINATION OF THE WORKINGS OF THE
REVISED SYSTEM HAS BEEN MADE BY DR. SIMEON E. LELAND.  THE TAXATION OF
INTANGIBLES IN KENTUCKY, BULLETIN OF THE BUREAU OF BUSINESS RESEARCH,
COLLEGE OF COMMERCE, UNIVERSITY OF KENTUCKY, VOL. 1, NO. 1(1929). 

FN10  254 U.S. 122, 124. 

FN11  CARMICHAEL V. SOUTHERN COAL & COKE CO., 301 U.S. 495, 511. 

FN12  THE 14TH AMENDMENT, SEC. 1, PROVIDES: 

"ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND SUBJECT TO
THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE
STATE WHEREIN THEY RESIDE.  NO STATE SHALL MAKE OR ENFORCE ANY LAW
WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE
UNITED STATES; ...  " 

FN13  307 U.S. 496.  THE PRIOR CASES ARE COLLECTED IN NOTE 2 OF THE
DISSENTING OPINION IN COLGATE V. HARVEY (296 U.S. 404, 445) AND NOTE 1
OF MR. JUSTICE STONE'S OPINION IN THE HAGUE CASE (307 U.S. 496, 520). 

FN14 MR. JUSTICE ROBERTS' OPINION, AT P. 512:  "ALTHOUGH IT HAS BEEN
HELD THAT THE FOURTEENTH AMENDMENT CREATED NO RIGHTS IN CITIZENS OF THE
UNITED STATES, BUT MERELY SECURED EXISTING RIGHTS AGAINST STATE
ABRIDGEMENT, IT IS CLEAR THAT THE RIGHT PEACEABLY TO ASSEMBLE AND TO
DISCUSS THESE TOPICS, AND TO COMMUNICATE RESPECTING THEM, WHETHER
ORALLY OR IN WRITING, IS A PRIVILEGE INHERENT IN CITIZENSHIP OF THE
UNITED STATES WHICH THE AMENDMENT PROTECTS." 

MR. JUSTICE STONE'S OPINION, AT P. 519-21:  "HENCE THERE IS NO
OCCASION  ...  TO REVIVE THE CONTENTION, REJECTED BY THIS COURT IN THE
SLAUGHTER-HOUSE CASES, THAT THE PRIVILEGES AND IMMUNITIES OF UNITED
STATES CITIZENSHIP, PROTECTED BY THAT CLAUSE, EXTEND BEYOND THOSE WHICH
ARISE OR GROW OUT OF THE RELATIONSHIP OF UNITED STATES CITIZENS TO THE
NATIONAL GOVERNMENT. 

"THAT SUCH IS THE LIMITED APPLICATION OF THE PRIVILEGES AND
IMMUNITIES CLAUSE SEEMS NOW TO BE CONCEDED BY MY BRETHREN." 

FN15  16 WALL.  36, AT 71-72: 

"WE REPEAT, THEN, IN THE LIGHT OF THIS RECAPITULATION OF EVENTS,
ALMOST TOO RECENT TO BE CALLED HISTORY, BUT WHICH ARE FAMILIAR TO US
ALL; AND ON THE MOST CASUAL EXAMINATION OF THE LANGUAGE OF THESE
AMENDMENTS, NO ONE CAN FAIL TO BE IMPRESSED WITH THE ONE PERVADING
PURPOSE FOUND IN THEM ALL, LYING AT THE FOUNDATION OF EACH, AND WITHOUT
WHICH NONE OF THEM WOULD HAVE BEEN EVEN SUGGESTED; WE MEAN THE FREEDOM
OF THE SLAVE RACE, THE SECURITY AND FIRM ESTABLISHMENT OF THAT FREEDOM,
AND THE PROTECTION OF THE NEWLY-MADE FREEMAN AND CITIZEN FROM THE
OPPRESSIONS OF THOSE WHO HAD FORMERLY EXERCISED UNLIMITED DOMINION OVER
HIM.  ... 

"  ...  AND SO, IF OTHER RIGHTS ARE ASSAILED BY THE STATES WHICH
PROPERLY AND NECESSARILY FALL WITHIN THE PROTECTION OF THESE ARTICLES,
THAT PROTECTION WILL APPLY THOUGH THE PARTY INTERESTED MAY NOT BE OF
AFRICAN DESCENT.  BUT WHAT WE DO SAY, AND WHAT WE WISH TO BE UNDERSTOOD
IS, THAT IN ANY FAIR AND JUST CONSTRUCTION OF ANY SECTION OR PHRASE OF
THESE AMENDMENTS, IT IS NECESSARY TO LOOK TO THE PURPOSE WHICH WE HAVE
SAID WAS THE PERVADING SPIRIT OF THEM ALL, THE EVIL WHICH THEY WERE
DESIGNED TO REMEDY, AND THE PROCESS OF CONTINUED ADDITION TO THE
CONSTITUTION UNTIL THAT PURPOSE WAS SUPPOSED TO BE ACCOMPLISHED, AS FAR
AS CONSTITUTIONAL LAW CAN ACCOMPLISH IT." 

FN16  IDEM, 78-79. 

FN17  SLAUGHTER-HOUSE CASES, SUPRA. 

FN18  COX V. TEXAS, 202 U.S. 446; CF. BARTEMEYER V. IOWA, 18 WALL. 
129; CROWLEY V. CHRISTENSEN, 137 U.S. 86; GIOZZA V. TIERNAN, 148 U.S.
657; CRANE V. CAMPBELL, 245 U.S. 304. 

FN19  HOLDEN V. HARDY, 169 U.S. 366; WILMINGTON STAR MINING CO. V.
FULTON, 205 U.S. 60; WESTERN UNION TELEGRAPH CO. V. COMMERCIAL MILLING
CO., 218 U.S. 406; ROSENTHAL V. NEW YORK, 226 U.S. 260; PRUDENTIAL INS.
CO. V. CHEEK, 259 U.S. 530. 

FN20  BOARD OF EDUCATION V. ILLINOIS, 203 U.S. 553; CF. FERRY V.
SPOKANE, P. & S. RY. CO., 258 U.S. 314. 

FN21  THEY HAVE BEEN DESCRIBED AS "PRIVILEGES AND IMMUNITIES ARISING
OUT OF THE NATURE AND ESSENTIAL CHARACTER OF THE NATIONAL GOVERNMENT,
AND GRANTED OR SECURED BY THE CONSTITUTION OF THE UNITED STATES."  IN
RE KEMMLER, 136 U.S. 436, 448.  SEE ALSO SLAUGHTER-HOUSE CASES, SUPRA,
AT 79-80; UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 552; WILLIAMS V.
FEARS, 179 U.S. 270, 274; TWINING V. NEW JERSEY, 211 U.S. 78, 97. 

FN22  CF. TWINING V. NEW JERSEY, 211 U.S. 78, 94. 

FN23  TWINING V. NEW JERSEY, SUPRA, 92. 

FN24  296 U.S. 404. 

MR. CHIEF JUSTICE HUGHES CONCURS IN THE RESULT UPON THE GROUND, AS
STATED BY THE COURT OF APPEALS OF KENTUCKY, THAT THE CLASSIFICATION
ADOPTED BY THE LEGISLATURE RESTED UPON A REASONABLE BASIS. 

MR. JUSTICE ROBERTS: 

I THINK THAT THE JUDGMENT SHOULD BE REVERSED.  FOUR YEARS AGO IN
COLGATE V. HARVEY, 296 U.S. 404, THIS COURT HELD THAT THE EQUAL
PROTECTION CLAUSE AND THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE
FOURTEENTH AMENDMENT PROHIBIT SUCH A DISCRIMINATION AS RESULTS FROM THE
STATUTE NOW UNDER REVIEW.  I ADHERE TO THE VIEWS EXPRESSED IN THE
OPINION OF THE COURT IN THAT CASE, AND THINK IT SHOULD BE FOLLOWED IN
THIS. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS OPINION. 
..END :

















STEWART & CO. V. SADRAKULA, 309 U.S. 94 


NO. 251.  ARGUED JANUARY 12, 1940.  - DECIDED JANUARY 29, 1940.  - 254
APP. DIV. 892 - 5 N.Y.S.2D 260, AFFIRMED. 


1.  UNDER JUD.  CODE SEC. 237(A) AND THE ACT OF JANUARY 31, 1928, THIS
COURT HAS JURISDICTION OVER AN APPEAL FROM A JUDGMENT OF A STATE COURT
OF LAST RESORT, SUSTAINING A RECOVERY OF DAMAGES FOR ACCIDENTAL DEATH,
WHICH NECESSARILY UPHOLDS A STATE STATUTE UNDER WHICH THE DAMAGES WERE
AWARDED AGAINST THE CONTENTION THAT, IN ITS APPLICATION TO THE LOCUS IN
QUO - A POST-OFFICE SITE - IT VIOLATED THE PROVISIONS OF THE
CONSTITUTION AS TO AUTHORITY OF THE UNITED STATES IN SUCH PLACES.  P.
97. 

2.  UPON THE TRANSFER FROM A STATE TO THE UNITED STATES OF EXCLUSIVE
JURISDICTION OF A SITE FOR A POSTOFFICE, THE STATE LAWS IN EFFECT AT
THE TIME CONTINUE IN FORCE AS FEDERAL LAWS, SAVE AS THEY MAY BE
INAPPROPRIATE TO THE CHANGED SITUATION OR INCONSISTENT WITH THE
NATIONAL PURPOSE, AND SAVE AS CONGRESS MAY HAVE PROVIDED OTHERWISE.  P.
99. 

3.  SECTION 241(4) OF THE NEW YORK LABOR LAW, WHICH REQUIRES THE
PLANKING-OVER OF FLOOR BEAMS ON WHICH IRON OR STEEL WORK IS BEING
ERECTED IN BUILDING CONSTRUCTION, REMAINED IN FORCE AS TO THE POST
OFFICE SITE IN NEW YORK CITY AFTER THE ACQUISITION OF THE SITE BY THE
UNITED STATES, AND WAS APPLICABLE TO A CONTRACTOR ENGAGED IN
CONSTRUCTING THE POST OFFICE UNDER A CONTRACT WITH THE GOVERNMENT.  P.
100. 

THE FACT THAT THE LABOR LAW CONTAINS NUMEROUS ADMINISTRATIVE AND
OTHER PROVISIONS INAPPLICABLE IN THE CHANGED SITUATION DOES NOT RENDER
SEC. 241(4) INAPPLICABLE. 

4.  THE POSSIBILITY THAT THE SAFETY REQUIREMENT OF BOARDING-OVER THE
STEEL TIERS MAY SLIGHTLY INCREASE THE COST OF CONSTRUCTION TO THE
GOVERNMENT DOES NOT MAKE THE REQUIREMENT INAPPLICABLE TO THE POSTOFFICE
SITE.  P. 104. 

5.  WHILE THE GOVERNMENT BUILDING CONTRACT IS IN A SENSE THE MEANS BY
WHICH THE UNITED STATES SECURES THE CONSTRUCTION OF ITS POST OFFICE,
THE CONTRACTOR IN CARRYING OUT THE CONTRACT HAS NOT THE IMMUNITY OF A
GOVERNMENT INSTRUMENTALITY.  P. 105. 

6.  A CONTRACT FOR THE BUILDING OF A POST-OFFICE IN THE CITY OF NEW
YORK PROVIDED THAT "STATE OR MUNICIPAL BUILDING REGULATIONS DO NOT
APPLY TO WORK INSIDE THE GOVERNMENT'S LOT LINES," THE SENTENCE QUOTED
BEING IN A SECTION OF THE CONTRACT RELATING TO "LICENSES, PERMITS,
ETC."  HELD THAT THE INTENTION WAS TO RELIEVE THE CONTRACTOR FROM
PROVISIONS OF THE CITY BUILDING CODE RELATING TO TYPES OF MATERIAL,
FIRE HAZARDS AND THE LIKE.  P. 105. 

JAMES STEWART & CO. V. SADRAKULA, ADMINISTRATRIX. 

APPEAL FROM THE SUPREME COURT OF NEW YORK. 

APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF NEW YORK, ENTERED ON
REMITTITUR FROM THE COURT OF APPEALS, 280 N.Y. 651, 730; 20 N.E.2D
1015; 21 N.E.2D 217, AND SUSTAINING AN AWARD OF DAMAGES FOR ACCIDENTAL
DEATH. 

UPON TRANSFER OF JURISDICTION, CERTAIN STATE LAWS, TERMED MUNICIPAL,
GOVERNING THE PERSONAL AND PROPERTY RIGHTS OF THE INHABITANTS IN THEIR
RELATIONS WITH ONE ANOTHER, REMAIN EFFECTIVE, UNLESS THEY CONFLICT WITH
THE POLITICAL CHARACTER, INSTITUTIONS OR CONSTITUTION OF THE UNITED
STATES.  THAT RULE, BORROWED FROM INTERNATIONAL LAW, RESULTS FROM THE
NECESSITY OF AVOIDING THE ALTERNATIVE THAT, UNTIL ACTION BY CONGRESS,
THERE WOULD BE NO LAW THERE FOR THE PROTECTION OF SUCH RIGHTS. 
AMERICAN INS. CO. V. CANTER, 1 PET. 511, 541; CHICAGO, R.I. & P.R. CO.
V. MCGLINN, 114 U.S. 542, 546, 547; WESTERN UNION TELEGRAPH CO. V.
CHILES, 214 U.S. 274, 277, 278; VILAS V. MANILA, 220 U.S. 345;
ARLINGTON HOTEL CO. V. FANT, 278 U.S. 439; HALLECK, INTERNATIONAL LAW,
C. 34, SEC. 14; 38 COL. L. REV., P. 133. 

IMPLICIT IN SUCH RULE IS THE ASSUMPTION THAT LAWS WHICH THUS CONTINUE
IN FORCE HAVE BEEN ADOPTED BY THE NEW GOVERNMENT AS ITS OWN.  SUCH
ADOPTION SHOULD BE ONLY PRESUMED OF LAWS WHICH ARE CLEARLY WITHIN THE
PURPOSE OF THE RULE AND WHICH, WHEN APPLIED, WILL NOT INTERFERE WITH
THE ACTIVITIES OF THE GOVERNMENT. 

THE NEW YORK LABOR LAW IS A COMPREHENSIVE CODE OF REGULATIONS
DESIGNED TO PROMOTE THE HEALTH, WELFARE AND PERSONAL SAFETY OF THOSE
ENGAGED IN MANY DIFFERENT OCCUPATIONS.  ARTICLE 10, OF WHICH SEC. 241
IS PART, RELATES TO THE CONSTRUCTION OF BUILDINGS.  IN NEW YORK CITY,
ITS ENFORCEMENT IS ENTRUSTED TO THE SUPERINTENDENT OF BUILDINGS, A
MUNICIPAL OFFICIAL, WHO IS ALSO CHARGED WITH THE ENFORCEMENT OF THE
CITY BUILDING CODE, A MUNICIPAL ORDINANCE WHICH HAS THE FORCE OF A
STATUTE.  THAT OFFICIAL IS EMPOWERED TO ENTER UPON ALL PREMISES IN
WHICH SUCH WORK IS BEING CONDUCTED, REQUIRE COMPLIANCE WITH BOTH THE
LABOR LAW AND THE BUILDING CODE, AND, IF HE DEEM IT NECESSARY, STOP ALL
WORK MEANWHILE. 

THOSE PROVISIONS FOR ITS EXECUTIVE ADMINISTRATION AND ENFORCEMENT
CLEARLY DISTINGUISH THIS STATUTE FROM THOSE WHICH HAVE BEEN CLASSIFIED
AS "MUNICIPAL."  CROOK V. OLD POINT COMFORT, 54 F.2D 669; MCCARTHY V.
PACKARD CO., 105 APP. DIV. 436; 182 N.Y. 555. 

EXERCISE OF SUCH EXECUTIVE AUTHORITY IN FEDERAL TERRITORY WOULD
CLEARLY INFRINGE UPON FEDERAL SOVEREIGNTY.  ARIZONA V. CALIFORNIA, 283
U.S. 423, 451, 452; EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, 388,
389; OKLAHOMA CITY V. SANDERS, 94 F.2D 323, 326; UNITED STATES V. SAN
FRANCISCO BRIDGE CO., 88 F. 891, 894, 895. 

MAY IT THEN BE REASONABLY INFERRED THAT THE FEDERAL GOVERNMENT
INTENDED THAT THIS STATUTE SHOULD BE EVEN PARTIALLY EFFECTIVE IN ITS
TERRITORY?  CF. MURRAY V. JOE GERRICK & CO., 291 U.S. 315, 319. 

EVEN THOUGH ITS EXECUTIVE PROVISIONS BE DEEMED ELIMINATED, THE
MANDATES OF THE STATUTE, AS APPLIED HEREIN, ARE NOT "MUNICIPAL," BUT
"POLITICAL." 

THE ONLY BUILDING TO WHICH THE STATUTE COULD APPLY WAS TO BE
CONSTRUCTED PURSUANT TO A CONTRACT WITH THE UNITED STATES.  COMPLETE
CONTROL OF ITS CONSTRUCTION WAS VESTED IN THE SECRETARY OF THE TREASURY
BY CONGRESS.  40 U.S.C. SECS. 285, 341, 342. 

THE STATUTE IS SUCH THAT IT COULD NOT BE EFFECTIVE IN ITS ENTIRETY IN
FEDERAL TERRITORY, AND ITS MANDATES ARE SUCH THAT THEIR ADOPTION
THEREIN SHOULD NOT BE PRESUMED.  SUCH PRESUMPTION WOULD SEEM CONTRARY
TO THE INTENT OF CONGRESS, AS EVIDENCED BY ITS FAILURE TO ENACT SEVERAL
BILLS FOR THE ADOPTION OF STATE SAFETY LAWS IN ALL FEDERAL PROJECTS. 

APPELLANT'S CONTRACT WAS AN INSTRUMENTALITY OF THE FEDERAL GOVERNMENT
AND, AS APPLIED HEREIN, THE STATE STATUTE CONFLICTED AND INTERFERED
WITH THAT CONTRACT AND ITS PERFORMANCE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A FINAL JUDGMENT OF THE SUPREME COURT OF NEW
YORK AWARDING DAMAGES FOR ACCIDENTAL DEATH.  AS A STATUTE OF THE STATE
NECESSARILY WAS SUSTAINED AGAINST A CONTENTION THAT ITS APPLICATION TO
THESE CIRCUMSTANCES VIOLATED THE PROVISIONS OF THE CONSTITUTION AS TO
THE EXCLUSIVE AUTHORITY OF THE UNITED STATES OVER A POST-OFFICE SITE
PURCHASED WITH THE CONSENT OF NEW YORK,  FN1  THIS COURT HAS
JURISDICTION UNDER SEC. 237(A) OF THE JUDICIAL CODE AND THE ACT OF
JANUARY 31, 1928. 

THE ISSUE OF LAW INVOLVED IS WHETHER AN EXISTING PROVISION OF A STATE
STATUTE REQUIRING THE PROTECTION OF PLACES OF WORK IN THE MANNER
SPECIFIED IN THE STATUTE  FN2  REMAINS EFFECTIVE AS A STATUTE OF THE
UNITED STATES APPLICABLE TO THE PARTICULAR PARCEL AFTER THE FEDERAL
GOVERNMENT ACQUIRES EXCLUSIVE JURISDICTION OF A PARCEL OF REALTY ON
WHICH WORK IS BEING DONE. 

THE DECEDENT, AN EMPLOYEE OF A RIGGING COMPANY, A SUB-CONTRACTOR
ENGAGED IN THE CONSTRUCTION OF THE NEW YORK POST OFFICE, FELL FROM AN
UNPLANKED TIER OF STEEL BEAMS DOWN A BAY AND WAS KILLED.  IN AN ACTION
OF TORT AGAINST THE GENERAL CONTRACTOR, HIS ADMINISTRATRIX NARROWED THE
SCOPE OF THE CHARGES OF NEGLIGENCE UNTIL VIOLATION OF THE QUOTED SUB
THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENT FAILURE TO PLANK
THE BEAMS AS REQUIRED BY THE STATUTE.  THE APPELLATE DIVISION AFFIRMED
FN3  ON THE GROUND THAT THE LABOR LAW PROVISION CONTINUED EFFECTIVE
OVER THE POST-OFFICE SITE AFTER THE TRANSFER OF SOVEREIGNTY, AND THE
COURT OF APPEALS BY AN ORDER OF REMITTITUR, 21 N.E.2D 217, ALSO
AFFIRMED ON THE SAME GROUND WITH A STATEMENT THAT IN ITS AFFIRMANCE IT
NECESSARILY PASSED UPON THE VALIDITY AND APPLICABILITY OF SEC. 241(4)
OF THE LABOR LAW UNDER ARTICLE I, SEC. 8 OF THE CONSTITUTION.  280 N.Y.
651, 730; 20 N.E.2D 1015; 21 N.E.2D 217. 

THE LANGUAGE OF THE COURT OF APPEALS AND THE RECORD SHOW INDUBITABLY
THAT A DETERMINATIVE FEDERAL QUESTION WAS DECIDED.  FN4  THE CONCLUSION
AS TO THE CONTINUED VITALITY OF EXISTING STATE STATUTORY REGULATIONS IN
THE PROTECTION OF WORKMEN IN CEDED FEDERAL AREAS MAKES IT SUBSTANTIAL. 
FN5  THE MOTIONS TO DISMISS OR AFFIRM THE APPEAL ARE DENIED.  FN6 

IF THE QUOTED PROVISION OF THE LABOR LAW IS OPERATIVE EVEN THOUGH
EXCLUSIVE JURISDICTION HAD ALREADY VESTED IN THE UNITED STATES, IT IS
UNNECESSARY TO DETERMINE WHETHER EXCLUSIVE JURISDICTION HAD ACTUALLY
PASSED TO THE UNITED STATES.  THE STATE COURTS ASSUMED THAT FEDERAL
SOVEREIGNTY WAS COMPLETE THROUGH CONSENT BY THE STATE AND WE MAKE THE
SAME ASSUMPTION.  DOES THE ACCEPTANCE OF SOVEREIGNTY BY THE UNITED
STATES HAVE THE EFFECT OF DISPLACING THIS SUB-SECTION OF THE NEW YORK
LABOR LAW?  WE THINK IT DID NOT.  THE SUB-SECTION CONTINUES AS A PART
OF THE LAWS OF THE FEDERAL TERRITORY. 

IT IS NOW SETTLED THAT THE JURISDICTION ACQUIRED FROM A STATE BY THE
UNITED STATES WHETHER BY CONSENT TO THE PURCHASE OR BY CESSION MAY BE
QUALIFIED IN ACCORDANCE WITH AGREEMENTS REACHED BY THE RESPECTIVE
GOVERNMENTS.  FN7  THE CONSTITUTION DOES NOT COMMAND THAT EVERY VESTIGE
OF THE LAWS OF THE FORMER SOVEREIGNTY MUST VANISH.  ON THE CONTRARY ITS
LANGUAGE HAS LONG BEEN INTERPRETED SO AS TO PERMIT THE CONTINUANCE
UNTIL ABROGATED OF THOSE RULES EXISTING AT THE TIME OF THE SURRENDER OF
SOVEREIGNTY WHICH GOVERN THE RIGHTS OF THE OCCUPANTS OF THE TERRITORY
TRANSFERRED.  FN8  THIS ASSURES THAT NO AREA HOWEVER SMALL WILL BE LEFT
WITHOUT A DEVELOPED LEGAL SYSTEM FOR PRIVATE RIGHTS.  IN CHICAGO, R.I.
& P.R. CO. V. MCGLINN, SUPRA, A KANSAS STATUTE RELATING TO RECOVERY
AGAINST A RAILROAD FOR THE INJURY TO LIVESTOCK ON ITS RIGHT OF WAY
EXISTED AT THE TIME OF THE CESSION TO THE UNITED STATES OF EXCLUSIVE
JURISDICTION OVER FORT LEAVENWORTH MILITARY RESERVATION.  IT WAS HELD
THAT THE STATUTE WAS CARRIED OVER INTO THE LAW COVERING THE
RESERVATION.  CONVERSELY, IN ARLINGTON HOTEL CO. V. FANT, SUPRA, AN
ARKANSAS STATUTE RELIEVING INNKEEPERS, PASSED AFTER CESSION OF HOT
SPRINGS RESERVATION, WAS HELD UNAVAILING AS A DEFENSE TO A RESERVATION
INNKEEPER'S COMMON-LAW LIABILITY IN ACCORDANCE WITH ARKANSAS LAW BEFORE
THE CESSION.  SUCH HOLDINGS ASSIMILATE THE LAWS OF THE FEDERAL
TERRITORY, WHERE THE CONGRESS HAS NOT LEGISLATED OTHERWISE, TO THE LAWS
OF THE SURROUNDING STATE. 

THE CONGRESS HAS RECOGNIZED IN CERTAIN INSTANCES THE DESIRABILITY OF
SUCH SIMILARITY BETWEEN THE MUNICIPAL LAWS OF THE STATE AND THOSE OF
THE FEDERAL PARCEL.  SINCE ONLY THE LAW IN EFFECT AT THE TIME OF THE
TRANSFER OF JURISDICTION CONTINUES IN FORCE, FUTURE STATUTES OF THE
STATE ARE NOT A PART OF THE BODY OF LAWS IN THE CEDED AREA. 
CONGRESSIONAL ACTION IS NECESSARY TO KEEP IT CURRENT.  CONSEQUENTLY AS
DEFECTS BECOME APPARENT LEGISLATION IS ENACTED COVERING CERTAIN
PHASES.  THIS OCCURRED AS TO RIGHTS OF ACTION FOR ACCIDENTAL DEATH BY
NEGLIGENCE OR WRONGFUL ACT.  FN9 AFTER THIS STATUTE WAS HELD
INAPPLICABLE TO CLAIMS UNDER STATE WORKMEN'S COMPENSATION ACTS FURTHER
LEGISLATION UNDERTOOK TO EXTEND THE PROVISIONS OF THOSE ACTS TO THE
PLACES UNDER FEDERAL SOVEREIGNTY.  FN10  WITH GROWING FREQUENCY THE
FEDERAL GOVERNMENT LEAVES LARGELY UNIMPAIRED THE CIVIL AND CRIMINAL
AUTHORITY OF THE STATE OVER NATIONAL RESERVATIONS OR PROPERTIES.  FN11
WHILE EXCLUSIVE FEDERAL JURISDICTION ATTACHES, STATE COURTS ARE WITHOUT
POWER TO PUNISH FOR CRIMES COMMITTED ON FEDERAL PROPERTY.  FN12  THIS
HAS MADE NECESSARY THE LEGISLATION WHICH GIVES FEDERAL COURTS
JURISDICTION OVER THESE CRIMES.  FN13  THE TENDENCY TOWARD A UNIFORMITY
BETWEEN THE FEDERAL AND SURROUNDING STATE TERRITORY HAS CAUSED A SERIES
OF CONGRESSIONAL ACTS ADOPTING THE STATE CRIMINAL LAWS.  FN14  THROUGH
THESE CONCESSIONS OUR DUAL SYSTEM OF GOVERNMENT WORKS COOPERATIVELY
TOWARDS HARMONIOUS ADJUSTMENT. 

IT IS URGED THAT THE PROVISIONS OF THE LABOR LAW CONTAIN NUMEROUS
ADMINISTRATIVE AND OTHER PROVISIONS WHICH CANNOT BE RELEVANT TO THE
FEDERAL TERRITORY.  THE LABOR LAW DOES HAVE A NUMBER OF ARTICLES.  FN15
OBVIOUSLY MUCH OF THEIR LANGUAGE IS DIRECTED AT SITUATIONS THAT CANNOT
ARISE IN THE TERRITORY.  WITH THE DOMESTICATION IN THE EXCISED AREA OF
THE ENTIRE APPLICABLE BODY OF STATE MUNICIPAL LAW MUCH OF THE STATE LAW
MUST NECESSARILY BE INAPPROPRIATE.  SOME SECTIONS AUTHORIZE QUASI
JUDICIAL PROCEEDINGS OR ADMINISTRATIVE ACTION AND MAY WELL HAVE NO
VALIDITY IN THE FEDERAL AREA.  IT IS NOT A QUESTION HERE OF THE
EXERCISE OF STATE ADMINISTRATIVE AUTHORITY IN FEDERAL TERRITORY.  FN16
WE DO NOT AGREE, HOWEVER, THAT BECAUSE THE LABOR LAW IS NOT APPLICABLE
AS A WHOLE, IT FOLLOWS THAT NONE OF ITS SECTIONS ARE.  WE HAVE HELD IN
COLLINS V. YOSEMITE PARK COMPANY FN17  THAT THE SECTIONS OF A
CALIFORNIA STATUTE WHICH LEVIED EXCISES ON SALES OF LIQUOR IN YOSEMITE
NATIONAL PARK WERE ENFORCEABLE IN THE PARK, WHILE SECTIONS OF THE SAME
STATUTE PROVIDING REGULATION OF THE PARK LIQUOR TRAFFIC THROUGH
LICENSES WERE UNENFORCEABLE.  FN18 

BUT THE AUTHORITY OF STATE LAWS OR THEIR ADMINISTRATION MAY NOT
INTERFERE WITH THE CARRYING OUT OF A NATIONAL PURPOSE.  FN19  WHERE
ENFORCEMENT OF THE STATE LAW WOULD HANDICAP EFFORTS TO CARRY OUT THE
PLANS OF THE UNITED STATES, THE STATE ENACTMENT MUST, OF COURSE, GIVE
WAY.  FN20 

MAY IT BE SAID THAT THE CONTINUED APPLICATION OF SEC. 241 OF THE
LABOR LAW  FN21  WILL INTERFERE WITH THE CONSTRUCTION OF THE BUILDING
UPON THIS SITE?  THIS IS LIKE OTHER SQUARES IN THE CITY.  THERE ARE, OF
COURSE, DIFFERENTIATIONS BECAUSE OF ITS OWNERSHIP, BUT OWNERSHIP AS
SUCH HAS NOTHING TO DO WITH THE SAFETY REQUIREMENTS.  IT IS TRUE THAT
IT IS POSSIBLE THAT THE SAFETY REQUIREMENT OF BOARDING OVER THE STEEL
TIERS MAY SLIGHTLY INCREASE THE COST OF CONSTRUCTION TO THE GOVERNMENT,
BUT SUCH AN INCREASE IS NOT SIGNIFICANT IN THE DETERMINATION OF THE
APPLICABILITY OF THE NEW YORK STATUTE.  IN ANSWER TO THE ARGUMENT THAT
A SIMILAR INCREASED COST FROM TAXATION WOULD "MAKE IT DIFFICULT OR
IMPOSSIBLE" FOR THE GOVERNMENT TO OBTAIN THE SERVICE IT NEEDS, WE SAID
IN JAMES V. DRAVO CONTRACTING CO. FN22  THAT SUCH A CONTENTION "IGNORES
THE POWER OF CONGRESS TO PROTECT THE PERFORMANCE OF THE FUNCTIONS OF
THE NATIONAL GOVERNMENT AND TO PREVENT INTERFERENCE THEREWITH THROUGH
ANY ATTEMPTED STATE ACTION."  SUCH A SAFETY REQUIREMENT IS AKIN TO THE
SAFETY PROVISIONS OF MARYLAND LAW WHICH IN BALTIMORE & ANNAPOLIS
RAILROAD CO. V. LICHTENBERG  FN23  WERE HELD APPLICABLE TO TRUCKS OF AN
INDEPENDENT CONTRACTOR TRANSPORTING GOVERNMENT EMPLOYEES UNDER A
CONTRACT WITH THE UNITED STATES. 

FINALLY THE POINT IS MADE THAT A PROVISION REQUIRING BOARDING OVER OF
OPEN STEEL TIERS IS A DIRECT INTERFERENCE WITH THE GOVERNMENT.  THIS IS
SAID TO FOLLOW FROM THE FACT THAT THE CONTRACT FOR THE CONSTRUCTION OF
THE POST OFFICE IS AN INSTRUMENTALITY OF THE FEDERAL GOVERNMENT.  AS A
COROLLARY TO THIS ARGUMENT, ERROR IS ASSIGNED TO THE REFUSAL OF THE
TRIAL COURT TO ADMIT IN EVIDENCE A CLAUSE OF THE CONTRACT BETWEEN THE
UNITED STATES AND THE APPELLANT READING, "STATE OR MUNICIPAL BUILDING
REGULATIONS DO NOT APPLY TO WORK INSIDE THE GOVERNMENT'S LOT LINES." 
FN24 WHILE, OF COURSE, IN A SENSE THE CONTRACT IS THE MEANS BY WHICH
THE UNITED STATES SECURES THE CONSTRUCTION OF ITS POST OFFICE,
CERTAINLY THE CONTRACTOR IN THIS INDEPENDENT OPERATION DOES NOT SHARE
ANY GOVERNMENTAL IMMUNITY.  FN25  NOR DO WE THINK THERE WAS ERROR IN
REFUSING TO ADMIT THE CLAUSE OF THE CONTRACT AS TO BUILDING
REGULATIONS.  THE QUOTED SENTENCE IS IN A SECTION OF THE CONTRACT
RELATING TO "LICENSES, PERMITS, ETC."  WE ARE OF THE OPINION THAT IT IS
INTENDED TO RELIEVE THE CONTRACTOR FROM PROVISIONS AS TO TYPES OF
MATERIAL, FIRE HAZARDS AND THE LIKE, WHICH ARE COVERED BY THE NEW YORK
CITY BUILDING CODE.    SUCH A SAFETY REGULATION AS SEC. 241(4) OF THE
NEW YORK LABOR LAW PROVIDES IS EFFECTIVE IN THE FEDERAL AREA, UNTIL
SUCH TIME AS THE CONGRESS MAY OTHERWISE PROVIDE.  FN26  AFFIRMED. 

FN1  CONSTITUTION, ART. I, SEC. 8, CL. 17:    "THE CONGRESS SHALL
HAVE POWER  ...  TO EXERCISE EXCLUSIVE LEGISLATION  ...  OVER ALL
PLACES PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE STATE IN
WHICH THE SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES,
ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL BUILDINGS; ...  " 

FN2  NEW YORK LABOR LAW SEC. 241 READS AS FOLLOWS: 

"SEC. 241.  PROTECTION OF EMPLOYEES ON BUILDING CONSTRUCTION OR
DEMOLITION WORK.  ALL CONTRACTORS AND OWNERS, WHEN CONSTRUCTING OR
DEMOLISHING BUILDINGS, SHALL COMPLY WITH THE FOLLOWING REQUIREMENTS: 

     .         .         .         .         . 

"4.  IF THE FLOOR BEAMS ARE OF IRON OR STEEL, THE ENTIRE TIER OF IRON
OR STEEL BEAMS ON WHICH THE STRUCTURAL IRON OR STEEL WORK IS BEING
ERECTED SHALL BE THOROUGHLY PLANKED OVER TO NOT LESS THAN SIX FEET
BEYOND SUCH BEAMS, EXCEPT SPACES REASONABLY REQUIRED FOR PROPER
CONSTRUCTION OF THE IRON OR STEEL WORK, FOR RAISING OR LOWERING OF
MATERIAL OR FOR STAIRWAYS AND ELEVATOR SHAFTS DESIGNATED BY THE PLANS
AND SPECIFICATIONS." 

FN3  254 APP. DIV. 892. 

FN4  HONEYMAN V. HANAN, 300 U.S. 14, 19; WHITFIELD V. OHIO, 297 U.S.
431, 435; CF. MCGOLDRICK V. GULF OIL CORP., ANTE, P. 2. 

FN5  MILHEIM V. MOFFAT TUNNEL DIST., 262 U.S. 710, 716. 

FN6  CF. MASON CO. V. TAX COMMISSION, 302 U.S. 186, 197; MURRAY V.
GERRICK & CO., 291 U.S. 315-16. 

FN7  COLLINS V. YOSEMITE PARK CO., 304 U.S. 518, 529-30; JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 134, 147-49. 

FN8  MURRAY V. GERRICK & CO., 291 U.S. 315, 318; ARLINGTON HOTEL CO.
V. FANT, 278 U.S. 439, 445, 446, 454; CHICAGO, R.I. & P.R. CO. V.
MCGLINN, 114 U.S. 542, 546-47. 

FN9  45 STAT. 54, 16 U.S.C. SEC. 457(1928); SEE MURRAY V. GERRICK &
CO., 291 U.S. 315, 319; H.R. REP. NO. 369, 70TH CONG., 1ST SESS.; 69
CONG. REC. 1486. 

FN10  49 STAT. 1938, 40 U.S.C. SEC. 290(1936); SEE H.R. REP. NO. 2656,
74TH CONG., 2D SESS. 

FN11  30 STAT. 668(1898)(JURISDICTION RECEDED TO STATES OVER PLACES
PURCHASED FOR BRANCHES OF SOLDIERS' HOMES); 49 STAT. 668, 16 U.S.C.
SEC. 465(1935)(WAIVER OF FEDERAL JURISDICTION FOR HISTORIC SITES); 49
STAT. 2025, 40 U.S.C. SEC. 421(1936)(SAME FOR SLUM-CLEARANCE AND LOW
COST HOUSING PROJECTS); 49 STAT. 2035(1936)(SAME FOR RESETTLEMENT AND
RURAL REHABILITATION); 50 STAT. 888, SEC. 13(B), 42 U.S.C. SEC.
1413(B)(1937)(SAME FOR ACQUISITIONS OF U.S. HOUSING AUTHORITY). 

FN12  BOWEN V. JOHNSTON, 306 U.S. 19, 29; UNITED STATES V. UNZEUTA,
281 U.S. 138; UNITED STATES V. CORNELL, FED. CAS. NO. 14,867;
COMMONWEALTH V. CLARY, 8 MASS. 72; PEOPLE V. HILLMAN, 246 N.Y. 467; 159
N.E. 400. 

FN13  JUDICIAL CODE SECS. 24, 27. 

FN14  R.S. 5391; 30 STAT. 717(1898); 35 STAT. 1145(1909); 48 STAT.
152(1933); 49 STAT. 394(1935). 

FN15  ARTICLE (1) SHORT TITLE; DEFINITIONS; (2) THE DEPARTMENT OF
LABOR; (3) REVIEW BY INDUSTRIAL BOARD AND COURT; (4) EMPLOYMENT OF
CHILDREN AND FEMALES; (5) HOURS OF LABOR; (6) PAYMENT OF WAGES; (7)
GENERAL PROVISIONS; (8) PUBLIC WORK; (8-A) GRADE CROSSING ELIMINATION
WORK; HOURS AND WAGES; (9) IMMIGRANT LODGING HOUSES; (10) BUILDING
CONSTRUCTION, DEMOLITION AND REPAIR WORK; (11) FACTORIES; (12) BAKERIES
AND MANUFACTURE OF FOOD PRODUCTS; (13) MANUFACTURE IN TENEMENT HOUSES;
(14) MERCANTILE AND OTHER ESTABLISHMENTS; (15) MINES AND TUNNELS;
QUARRIES; COMPRESSED AIR; (16) EXPLOSIVES; (17) PUBLIC SAFETY; (18)
MISCELLANEOUS PROVISIONS; LAWS REPEALED; WHEN TO TAKE EFFECT. 

FN16  WE DO NOT THEREFORE NEED TO CONSIDER THE AUTHORITY OF THE STATE
ADMINISTRATIVE OFFICERS.  NEW YORK LABOR LAW SEC. 242.  CF. OKLAHOMA
CITY V. SANDERS, 94 F.2D 323(C.C.A. 10).  IN THIS CASE AN INJUNCTION
WAS OBTAINED IN THE FEDERAL DISTRICT COURT ENJOINING A CITY AND CERTAIN
OF ITS OFFICERS FROM ENFORCING ORDINANCES RELATING TO LICENSES, BONDS
AND INSPECTIONS BY DAILY ARRESTS ON ACCOUNT OF VIOLATIONS OF THESE
ORDINANCES BY A CONTRACTOR DOING CONSTRUCTION WORK ON A LOWCOST HOUSING
PROJECT.  THE DECREE WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS AFTER
CONSIDERATION OF THE ACT OF JUNE 29, 1936 WHICH READS THAT "THE
ACQUISITION BY THE UNITED STATES OF ANY REAL PROPERTY  ...  IN
CONNECTION WITH ANY LOW-COST HOUSING  ...  PROJECT  ...  SHALL NOT BE
HELD TO DEPRIVE ANY STATE OR POLITICAL SUBDIVISION THEREOF OF ITS CIVIL
AND CRIMINAL JURISDICTION IN AND OVER SUCH PROPERTY  ...  "  EXCEPT AS
AFFECTED BY THE ACT JUST QUOTED IN PART, THE AREA WAS FEDERAL TERRITORY
THROUGH A CONSENT STATUTE.  THE COURT, SPEAKING OF THE RECESSION,
SAID: 

"IT WAS NOT THE PURPOSE THAT THE STATE SHOULD HAVE THE RIGHT TO EXERT
POLICE POWER THERE THROUGH APPLICATION OF MUNICIPAL ORDINANCES RELATING
TO LICENSES, BONDS, AND INSPECTIONS IN THE COURSE OF CONSTRUCTION
THEREON OF BUILDINGS BY THE UNITED STATES GOVERNMENT, NO SUCH
LEGISLATIVE INTENT OR DESIRE BEING INDICATED BY THE ACT." 

IT ALSO QUOTED WITH APPROVAL AN EXCERPT FROM AN OPINION OF THE
DIRECTOR, LEGAL DIVISION, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC
WORKS: 

"I AM, THEREFORE, OF THE OPINION THAT THE STATE OR LOCAL GOVERNMENT
MAY NOT SUPERVISE THE WORK OF A CONTRACTOR PERFORMING WORK ON PROPERTY
OWNED BY THE UNITED STATES OF A CONTRACT WITH THE UNITED STATES." 

FN17  304 U.S. 518, 532. 

FN18  WE DO NOT OVERLOOK THE LANGUAGE IN MURRAY V. GERRICK & CO., 291
U.S. 315, 319, CALLED TO OUR ATTENTION BY APPELLANT: 

"IF IT WERE HELD THAT BENEFICIARIES MAY SUE, PURSUANT TO THE
COMPENSATION LAW, WE SHOULD HAVE THE INCONGRUOUS SITUATION THAT THIS
LAW IS IN PART EFFECTIVE AND IN PART INEFFECTIVE WITHIN THE AREA UNDER
THE JURISDICTION OF THE FEDERAL GOVERNMENT."  THAT QUOTATION HAD
REFERENCE TO A CONTENTION THAT THE DEPENDENTS OF AN EMPLOYEE, KILLED ON
FEDERAL TERRITORY WITHIN A STATE, MIGHT CLAIM COMPENSATION AS
BENEFICIARIES UNDER A STATE COMPENSATION ACT.  THE COMPENSATION FUND,
COLLECTED AND ADMINISTERED BY STATE OFFICERS, WAS NOT EFFECTIVE IN
FEDERAL TERRITORY.  CF. ATKINSON V. TAX COMMISSION, 303 U.S. 20, 25. 
AS THE FUND WAS NOT AUGMENTED BY ASSESSMENTS AGAINST THE FEDERAL
CONTRACTOR, THE COURT HELD THE PROCEDURAL PROVISIONS OF THE STATE
COMPENSATION ACT DID NOT APPLY. 

FN19  PITTMAN V. HOME OWNERS' CORP., 308 U.S. 21; ATKINSON V. TAX
COMMISSION, 303 U.S. 20, 23; JAMES V. DRAVO CONTRACTING CO., 302 U.S.
134, 147, 161; UNITED STATES V. UNZEUTA, 281 U.S. 138, 142; OHIO V.
THOMAS, 173 U.S. 276, 283; FORT LEAVENWORTH R. CO. V. LOWE, 114 U.S.
525, 531; KOHL V. UNITED STATES, 91 U.S. 367, 371-72; THOMSON V.
PACIFIC RAILROAD, 9 WALL.  579, 591. 

FN20  ANDERSON V. CHICAGO & N.W. RY. CO., 102 NEB. 578, AS COMMENTED
UPON IN UNITED STATES V. UNZEUTA, 281 U.S. 138, 144. 

FN21  NOTE 2, SUPRA. 

FN22  302 U.S. 134, 160, 161. 

FN23  176 MD. 383; 4 A.2D 734, APPEAL DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION, SUB NOM. UNITED STATES V. BALITIMORE &
ANNAPOLIS R. CO., 308 U.S. 525. 

FN24  THE ENTIRE SECTION READS: 

"22.  PERMITS.  THE CONTRACTOR SHALL WITHOUT ADDITIONAL EXPENSE TO THE
GOVERNMENT OBTAIN ALL REQUIRED LICENSES, PERMITS, ETC.  THIS APPLIES TO
WORK OUTSIDE THE LOT LINES, THE USE OF STREETS AND SIDEWALKS, THE
PROTECTION OF PUBLIC AND TRAFFIC, CONNECTIONS TO UTILITY SERVICE LINES,
ETC. STATE OR MUNICIPAL BUILDING REGULATIONS DO NOT APPLY TO WORK
INSIDE THE GOVERNMENT'S LOT LINES." 

FN25  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 152; HELVERING V.
PRODUCERS CORP., 303 U.S. 376, 385. 

FN26  38 OPINIONS OF THE ATTORNEY GENERAL, 341, 348, 349, IS NOT TO
THE CONTRARY.  IT DECLARED THAT SEC. 2 OF A NEVADA CONSENT STATUTE WAS
CLEARLY INCOMPATIBLE WITH EXCLUSIVE JURISDICTION.  THE SECTION READ: 

"IN THE ERECTION OF SUCH FEDERAL BUILDING BY CONTRACT OR OTHERWISE,
OR IN CASE OF ANY SUBSEQUENT RECONSTRUCTION OR ALTERATION OF SUCH
BUILDING, IT IS HEREBY RESERVED AND PROVIDED THAT THE STATE LABOR LAWS,
THE STATE LABOR SAFETY LAWS AND THE STATE HEALTH LAWS, SHALL APPLY TO
ALL PERSONS, FIRMS, ASSOCIATIONS OR CORPORATIONS HAVING CONTRACTS FOR
SUCH CONSTRUCTION OR RECONSTRUCTION AS TO ALL PROVISIONS CONTAINED
THEREIN, AND NO CONTRACTOR HAVING ANY SUCH CONTRACT SHALL HAVE THE
RIGHT TO CLAIM TO BE OR TO DECLARE HIMSELF TO BE A GOVERNMENT
INSTRUMENTALITY." 

THE OPINION HOWEVER FURTHER STATED: 

"IT IS TO BE OBSERVED THAT THERE IS NOTHING IN WHAT HAS BEEN SAID
CONCERNING SECTIONS 2 AND 3 OF THE NEVADA STATUTE INCONSISTENT WITH THE
DOCTRINE THAT STATE LAWS REGULATING PRIVATE CIVIL RIGHTS (AS
DISTINGUISHED FROM STATE CRIMINAL LAWS  ...  ) CONTINUE IN FORCE, AS
LAWS OF THE UNITED STATES, ON LANDS CEDED BY CONSENT OF THE STATE TO
THE UNITED STATES, IF NOT IN CONFLICT WITH THE LAWS OF THE NEW
SOVEREIGNTY OR THE PURPOSE FOR WHICH THE LAND IS ACQUIRED, UNTIL
SUPERSEDED BY LAWS ENACTED BY THE UNITED STATES.  ...  THE DIFFICULTY
WITH SECTIONS 2 AND 3 OF THE NEVADA ACT IS THAT THEY DO NOT MERELY
OCCUPY A VACANT FIELD UNTIL FILLED BY THE FEDERAL GOVERNMENT - THEY
WITHHOLD AND RESERVE JURISDICTION, PRESENT AND FUTURE, OVER THE MATTERS
SPECIFIED IN THEM, HOWSOEVER INCONSISTENT WITH EXISTING OR FUTURE LAWS
OF THE UNITED STATES.  THAT PRECLUDES EXCLUSIVE JURISDICTION FROM
VESTING IN THE UNITED STATES." 
..END :





















HELVERING V. HALLOCK, 309 U.S. 106 


NO. 110.  ARGUED DECEMBER 13, 1939.  - DECIDED JANUARY 29, 1940.  - 102
F.2D 1 - 103 ID. 834, REVERSED.  - 104 F.2D 1011, AFFIRMED. 


1.  DECEDENT IN HIS LIFETIME CREATED A TRUST PROVIDING THAT THE INCOME
FROM THE TRUST PROPERTY SHOULD BE PAID TO HIS WIFE DURING HER LIFETIME,
THAT UPON HIS DEATH, IF SHE SURVIVED HIM, THE CORPUS OF THE TRUST
SHOULD GO TO HER OR TO OTHER NAMED BENEFICIARIES, BUT THAT UPON HER
DEATH, IF HE SURVIVED, THE PROPERTY SHOULD REVERT TO HIMSELF.  THE WIFE
SURVIVED.  HELD, THAT THE VALUE OF THE REMAINDER INTEREST SHOULD BE
INCLUDED IN THE DECEDENT'S GROSS ESTATE UNDER SEC. 302(C) OF THE
REVENUE ACT OF 1926, AS A TRANSFER INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT OR AFTER THE GRANTOR'S DEATH.  KLEIN V.
UNITED STATES, 283 U.S. 231, FOLLOWED; HELVERING V. ST. LOUIS TRUST
CO., 296 U.S. 39, AND BECKER V. ST. LOUIS TRUST CO., IBID. 48,
OVERRULED.  PP. 110-115. 

2.  THE TESTATOR BY TRUST DEED ESTABLISHED A FUND IN TRUST TO PAY THE
INCOME TO HIS WIFE DURING HER LIFE AND TO HIMSELF SHOULD HE SURVIVE
HER; AND UPON THE DEATH OF THE SURVIVOR, IF THE TRUST HAD NOT THEN BEEN
MODIFIED OR REVOKED, TO PAY THE PRINCIPAL TO THE SETTLOR'S ESTATE. 
THERE WAS A FURTHER PROVISION GIVING TO THE SETTLOR AND HIS WIFE
JOINTLY DURING THEIR LIVES, AND TO EITHER OF THEM AFTER THE DEATH OF
THE OTHER, POWER TO MODIFY, ALTER OR REVOKE THE TRUST, WHICH WAS NOT
EXERCISED.  THE WIFE SURVIVED THE HUSBAND.  HELD, THAT THE VALUE OF THE
INTEREST WHICH THE HUSBAND HAD RESERVED TO HIMSELF WAS PROPERLY
INCLUDED IN HIS GROSS ESTATE UNDER SEC. 302(C) OF THE REVENUE ACT OF
1926.  P. 116. 

3.  SECTION 302(C) DEALS NOT WITH PROPERTY TECHNICALLY PASSING AT
DEATH BUT WITH INTERESTS THERETOFORE CREATED.  THE TAXABLE EVENT IS A
TRANSFER INTER VIVOS.  BUT THE MEASURE OF THE TAX IS THE VALUE OF THE
TRANSFERRED PROPERTY AT THE TIME WHEN DEATH BRINGS IT INTO ENJOYMENT. 
P. 110. 

4.  THE STATUTE TAXES NOT MERELY THOSE INTERESTS WHICH ARE DEEMED TO
PASS AT DEATH ACCORDING TO REFINED TECHNICALITIES OF THE LAW OF
PROPERTY.  IT ALSO TAXES INTER VIVOS TRANSFERS THAT ARE CLOSELY AKIN TO
TESTAMENTARY DISPOSITIONS.  P. 112. 

5. THE GOVERNING PRINCIPLE IN THE APPLICATION OF THIS LEGISLATION
(SEC. 302(C), SUPRA) IS THE INTENTION OF CONGRESS TO INCLUDE IN THE
GROSS ESTATE INTER VIVOS GIFTS WHICH MAY BE RESORTED TO AS A SUBSTITUTE
FOR A WILL, IN MAKING DISPOSITIONS OF PROPERTY OPERATIVE AT DEATH.  TO
EFFECTUATE THIS PURPOSE PRACTICAL CONSIDERATIONS APPLICABLE TO TAXATION
PREVAIL, AND NOT THE NICETIES OF THE ART OF CONVEYANCING.  P. 114. 

6.  STARE DECISIS IS A PRINCIPLE OF POLICY AND NOT A MECHANICAL
FORMULA OF ADHERENCE TO THE LATEST DECISION, HOWEVER RECENT AND
QUESTIONABLE, WHEN SUCH ADHERENCE INVOLVES COLLISION WITH A PRIOR
DOCTRINE MORE EMBRACING IN ITS SCOPE, INTRINSICALLY SOUNDER, AND
VERIFIED BY EXPERIENCE.  P. 118. 

7.  IN THE CASE AT BAR THE DECISIONS NOW RELIED UPON BY THE TAXPAYERS
BUT OVERRULED BY THE COURT, WERE MADE AFTER THE MAKING OF THE
SETTLEMENTS, AND AFTER THE DEATH OF THE SETTLORS, OUT OF WHICH THE
TAXES ACCRUED.  P. 119. 

8.  THE RIGHT AND DUTY OF THIS COURT TO RE-EXAMINE AN UNTENABLE OR
UNDESIRABLE CONSTRUCTION PLACED BY ITSELF UPON A REVENUE PROVISION ARE
NOT IMPEDED BY THE FAILURE OF CONGRESS AND OF THE TREASURY TO TAKE
STEPS TO AVOID SUCH CONSTRUCTION THROUGH LEGISLATIVE AMENDMENT.  P.
119. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. HALLOCK ET AL.,
TRUSTEES.* 

*TOGETHER WITH NO. 111, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. HALLOCK, EXECUTRIX, AND NO. 112, HELVERING, COMMISSIONER OF INTERNAL
REVENUE, V. SQUIRE, SUPERINTENDENT OF BANKS OF OHIO, ALSO ON WRITS OF
CERTIORARI, 308 U.S. 532, TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT, - ARGUED DECEMBER 13, 1939; NO. 183, ROTHENSIES, COLLECTOR OF
INTERNAL REVENUE, V. HUSTON, ADMINISTRATOR, ON WRIT OF CERTIORARI, 308
U.S. 538, TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT,  -
ARGUED DECEMBER 13, 14, 1939; AND NO. 399, BRYANT ET AL., EXECUTORS, V.
HELVERING, COMMISSIONER OF INTERNAL REVENUE, ON WRIT OF CERTIORARI, 308
U.S. 543, TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT,  -
ARGUED DECEMBER 14, 1939. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 308 U.S. 532, TO REVIEW DECISIONS OF THE CIRCUIT COURTS
OF APPEALS INVOLVING FEDERAL ESTATE TAXES. 

IN NOS. 110-112, THE JUDGMENTS BELOW AFFIRMED DECISIONS OF THE BOARD
OF TAX APPEALS, 34 B.T.A. 575, WHICH HAD SET ASIDE DEFICIENCY
ASSESSMENTS. 

IN NO. 183, THE TAXPAYER HAD PAID UNDER PROTEST AND HAD RECOVERED BY
SUIT, FROM THE COLLECTOR, A JUDGMENT WHICH WAS AFFIRMED BY THE CIRCUIT
COURT OF APPEALS. 

IN NO. 399, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS AFFIRMED A
DECISION OF THE BOARD OF TAX APPEALS, 36 B.T.A. 669, AFFIRMING A
DEFICIENCY ASSESSMENT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THESE CASES RAISE THE SAME QUESTION, NAMELY, WHETHER TRANSFERS OF
PROPERTY INTER VIVOS MADE IN TRUST, THE PARTICULARS OF WHICH WILL LATER
APPEAR, ARE WITHIN THE PROVISIONS OF SEC. 302(C) OF THE REVENUE ACT OF
1926.  FN1  THEY WERE HEARD IN SUCCESSION AND MAY BE DECIDED TOGETHER. 
IN EACH CASE THE COMMISSIONER OF INTERNAL REVENUE INCLUDED THE TRUST
PROPERTY IN THE DECEDENT'S GROSS ESTATE.  IN NOS. 110, 111 AND 112 HIS
DETERMINATION WAS REVERSED BY THE BOARD OF TAX APPEALS, 34 B.T.A. 575,
AND THE BOARD WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS FOR THE
SIXTH CIRCUIT, 102 F.2D 1.  IN NO. 183, THE TAXPAYER PAID UNDER
PROTEST, SUCCESSFULLY SUED FOR RECOVERY IN THE DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA, AND HIS JUDGMENT WAS SUSTAINED BY THE
CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT, 103 F.2D 834.  IN NO.
399, THE COMMISSIONER WAS IN PART SUCCESSFUL BEFORE THE BOARD OF TAX
APPEALS, 36 B.T.A. 669, AND THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT AFFIRMED THE BOARD, 104 F.2D 1011. 

NEITHER HERE NOR BELOW DOES THE ISSUE TURN ON THE UNGLOSSED TEXT OF
SEC. 302(C).  IN ITS ENFORCEMENT, TREASURY AND COURTS ALIKE ENCOUNTER
THREE RECENT DECISIONS OF THIS COURT, KLEIN V. UNITED STATES, 283 U.S.
231, HELVERING V. ST. LOUIS TRUST CO., 296 U.S. 39, AND BECKER V. ST.
LOUIS TRUST CO., IBID. 48.  BECAUSE OF THE DIFFICULTIES WHICH LOWER
COURTS HAVE FOUND IN APPLYING THE DISTINCTIONS MADE BY THESE CASES AND
THE SEEMING DISHARMONY OF THEIR RESULTS, WHEN JUDGED BY THE CONTROLLING
PURPOSES OF THE ESTATE TAX LAW, WE BROUGHT THE CASES HERE.  ALL INVOLVE
DISPOSITIONS OF PROPERTY BY WAY OF TRUST IN WHICH THE SETTLEMENT
PROVIDES FOR RETURN OR REVERSION OF THE CORPUS TO THE DONOR UPON A
CONTINGENCY TERMINABLE AT HIS DEATH.  WHETHER THE TRANSFER MADE BY THE
DECEDENT IN HIS LIFETIME IS "INTENDED TO TAKE EFFECT IN POSSESSION OR
ENJOYMENT AT OR AFTER HIS DEATH" BY REASON OF THAT WHICH HE RETAINED,
IS THE CRUX OF THE PROBLEM.  WE MUST PUT TO ONE SIDE QUESTIONS THAT
ARISE UNDER SECTIONS OF THE ESTATE TAX LAW OTHER THAN SEC. 302(C) -
WITH INTERESTS THERETOFORE CREATED.  THE TAXABLE EVENT IS A TRANSFER
INTER VIVOS.  BUT THE MEASURE OF THE TAX IS THE VALUE OF THE
TRANSFERRED PROPERTY AT THE TIME WHEN DEATH BRINGS IT INTO ENJOYMENT. 

WE TURN TO THE CASES WHICH BEGET THE DIFFICULTIES.  IN KLEIN V.
UNITED STATES, SUPRA, DECIDED IN 1931, THE DECEDENT DURING HIS LIFETIME
HAD CONVEYED LAND TO HIS WIFE FOR HER LIFETIME, "AND IF SHE SHALL DIE
PRIOR TO THE DECEASE OF SAID GRANTOR THEN AND IN THAT EVENT SHE SHALL
BY VIRTUE HEREOF TAKE NO GREATER OR OTHER ESTATE IN SAID LANDS AND THE
REVERSION IN FEE IN AND TO THE SAME SHALL IN THAT EVENT REMAIN VESTED
IN SAID GRANTOR,  ..."  THE INSTRUMENT FURTHER PROVIDED, "UPON
CONDITION AND IN THE EVENT THAT SAID GRANTEE SHALL SURVIVE THE SAID
GRANTOR, THEN AND IN THAT CASE ONLY THE SAID GRANTEE SHALL BY VIRTUE OF
THIS CONVEYANCE TAKE, HAVE, AND HOLD THE SAID LANDS IN FEE SIMPLE,
..."  THE TAXPAYER CONTENDED THAT THE DECEDENT HAD RESERVED A MERE
"POSSIBILITY OF REVERTER" AND THAT SUCH A "REMOTE INTEREST,"  FN2
EXTINGUISHABLE UPON THE GRANTOR'S DEATH, WAS NOT SUFFICIENT TO BRING
THE CONVEYANCE WITHIN THE RECKONING OF THE TAXABLE ESTATE.  THIS COURT
HELD OTHERWISE.  IT REJECTED FORMAL DISTINCTIONS PERTAINING TO THE LAW
OF REAL PROPERTY AS IRRELEVANT CRITERIA IN THIS FIELD OF TAXATION. 
"NOTHING IS TO BE GAINED," IT WAS SAID, "BY MULTIPLYING WORDS IN
RESPECT OF THE VARIOUS NICETIES OF THE ART OF CONVEYANCING OR THE LAW
OF CONTINGENT AND VESTED REMAINDERS.  IT IS PERFECTLY PLAIN THAT THE
DEATH OF THE GRANTOR WAS THE INDISPENSABLE AND INTENDED EVENT WHICH
BROUGHT THE LARGER ESTATE INTO BEING FOR THE GRANTEE AND EFFECTED ITS
TRANSMISSION FROM THE DEAD TO THE LIVING, THUS SATISFYING THE TERMS OF
THE TAXING ACT AND JUSTIFYING THE TAX IMPOSED."  KLEIN V. UNITED
STATES, SUPRA, AT 234. 

THE INESCAPABLE RATIONALE OF THIS DECISION, RENDERED BY A UNANIMOUS
COURT, WAS THAT THE STATUTE TAXES NOT MERELY THOSE INTERESTS WHICH ARE
DEEMED TO PASS AT DEATH ACCORDING TO REFINED TECHNICALITIES OF THE LAW
OF PROPERTY.  IT ALSO TAXES INTER VIVOS TRANSFERS THAT ARE TOO MUCH
AKIN TO TESTAMENTARY DISPOSITIONS NOT TO BE SUBJECTED TO THE SAME
EXCISE.  BY BRINGING INTO THE GROSS ESTATE AT HIS DEATH THAT WHICH THE
SETTLOR GAVE CONTINGENTLY UPON IT, THIS COURT FASTENED ON THE VITAL
FACTOR.  IT REFUSED TO SUBORDINATE THE PLAIN PURPOSES OF A MODERN
FISCAL MEASURE TO THE WHOLLY UNRELATED ORIGINS OF THE RECONDITE
LEARNING OF ANCIENT PROPERTY LAW.  SURELY THE KLEIN DECISION WAS NOT
INTENDED TO ENCOURAGE THE BELIEF THAT A CHANGE MERELY IN THE PHRASING
OF A GRANT WOULD SERVE TO CREATE A JUDICIALLY COGNIZABLE DIFFERENCE IN
THE SCOPE OF SEC. 302(C), ALTHOUGH THE GRANTOR RETAINED IN HIMSELF THE
POSSIBILITY OF REGAINING THE TRANSFERRED PROPERTY UPON PRECISELY THE
SAME CONTINGENCY.  THE TEACHING OF THE KLEIN CASE IS EXACTLY THE
OPPOSITE.  FN3 

IN 1935 THE ST. LOUIS TRUST CASES CAME HERE.  A RATIONAL APPLICATION
OF THE PRINCIPLES OF THE KLEIN CASE TO THE SITUATIONS NOW BEFORE US
CALLS FOR SCRUTINY OF THE PARTICULARS IN THE ST. LOUIS CASES IN ORDER
TO EXTRACT THEIR RELATION TO THE DOCTRINE OF THE EARLIER DECISION. 

IN HELVERING V. ST. LOUIS TRUST CO., SUPRA, THE DECEDENT HAD CONVEYED
PROPERTY IN TRUST, THE INCOME OF WHICH WAS TO BE PAID TO HIS DAUGHTER
DURING HER LIFE, BUT AT HER DEATH "IF THE GRANTOR STILL BE LIVING, THE
TRUSTEE SHALL FORTHWITH  ...  TRANSFER, PAY, AND DELIVER THE ENTIRE
ESTATE TO THE GRANTOR, TO BE HIS ABSOLUTELY."  BUT "IF THE GRANTOR BE
THEN NOT LIVING" THEN THE INCOME WAS TO BE DEVOTED TO THE SETTLOR'S
WIFE IF SHE WERE LIVING, AND UPON THE DEATH OF BOTH DAUGHTER AND WIFE,
IF HE WERE NOT LIVING, THE TRUST PROPERTY WAS TO GO TO THE DAUGHTER'S
CHILDREN, OR IF SHE LEFT NONE, TO THE GRANTOR'S NEXT OF KIN. 

IN BECKER V. ST. LOUIS TRUST CO., SUPRA, THE DECEDENT HAD DECLARED
HIMSELF TRUSTEE OF PROPERTY WITH THE INCOME TO BE ACCUMULATED OR, AT
HIS DISCRETION, TO BE PAID OVER TO HIS DAUGHTER DURING HER LIFE.  THE
INSTRUMENT FURTHER PROVIDED THAT "IF THE SAID BENEFICIARY SHOULD DIE
BEFORE MY DEATH, THEN THIS TRUST ESTATE SHALL THEREUPON REVERT TO ME
AND BECOME MINE IMMEDIATELY AND ABSOLUTELY, OR  ...  IF I SHOULD DIE
BEFORE HER DEATH, THEN THIS PROPERTY SHALL THEREUPON BECOME HERS
IMMEDIATELY AND ABSOLUTELY  ..." 

ON THE AUTHORITY OF THE KLEIN CASE THE COMMISSIONER HAD INCLUDED IN
THE TAXABLE ESTATES THE GIFTS TO WHICH, IN THE ST. LOUIS TRUST CASES,
THE GRANTOR'S DEATH HAD GIVEN DEFINITIVE MEASURE.  IF THE WIFE HAD
PREDECEASED THE SETTLOR IN THE KLEIN CASE, HE WOULD HAVE BEEN
REPOSSESSED OF HIS PROPERTY.  HIS WIFE'S INTERESTS WERE FREED FROM THIS
CONTINGENCY BY THE HUSBAND'S PRIOR DEATH, AND BECAUSE OF THE EFFECT OF
HIS DEATH THIS COURT SWEPT THE GIFT INTO THE GROSS ESTATE.  SO IN
HELVERING V. ST. LOUIS TRUST CO., THE GRANTOR WOULD HAVE BECOME
REPOSSESSED OF THE GRANTED CORPUS HAD HIS DAUGHTER PREDECEASED HIM. 
BUT HE PREDECEASED HER AND BY THAT EVENT HER INTEREST RIPENED TO FULL
DOMINION.  THE SAME ANALYSIS APPLIES TO THE BECKER CASE.  IN ALL THREE
SITUATIONS THE RESULT AND EFFECT WERE THE SAME.  THE EVENT WHICH GAVE
TO THE BENEFICIARIES A DOMINION OVER PROPERTY WHICH THEY DID NOT HAVE
PRIOR TO THE DONOR'S DEATH WAS AN ACT OF NATURE OUTSIDE THE GRANTOR'S
"CONTROL, DESIGN OR VOLITION."  296 U.S. 39, 43.  BUT IT WAS NO MORE
AND NO LESS "FORTUITOUS," SO FAR AS THE GRANTOR'S "CONTROL, DESIGN OR
VOLITION" WAS CONCERNED, IN THE ST. LOUIS TRUST CASES THAN IT WAS IN
THE KLEIN CASE.  IN NONE OF THE THREE CASES DID THE DOMINION OVER
PROPERTY WHICH FINALLY CAME TO THE BENEFICIARY FALL BY VIRTUE OF THE
GRANTOR'S WILL, EXCEPT BY HIS PROVISION THAT HIS OWN DEATH SHOULD
ESTABLISH SUCH FINAL AND COMPLETE DOMINION.  AND YET A MERE DIFFERENCE
IN PHRASING THE CIRCUMSTANCE BY WHICH IDENTIC INTERESTS IN PROPERTY
WERE BROUGHT INTO BEING - VARYING FORMS OF WORDS IN THE CREATION OF THE
SAME WORLDLY INTERESTS - WAS FOUND SUFFICIENT TO EXCLUDE THE ST. LOUIS
TRUST SETTLEMENTS FROM THE APPLICATION OF THE KLEIN DOCTRINE. 

FOUR MEMBERS OF THE COURT SAW NO DIFFERENCE.  THEY RELIED ON THE
GOVERNING PRINCIPLE OF SEC. 302(C) THAT CONGRESS MEANT TO INCLUDE IN
THE GROSS ESTATE INTER VIVOS GIFTS "WHICH MAY BE RESORTED TO, AS A
SUBSTITUTE FOR A WILL, IN MAKING DISPOSITIONS OF PROPERTY OPERATIVE AT
DEATH."  296 U.S. AT 46.  TO EFFECTUATE THIS PURPOSE PRACTICAL
CONSIDERATIONS APPLICABLE TO TAXATION AND NOT THE "NICETIES OF THE ART
OF CONVEYANCING" WERE THEIR TOUCHSTONE.  "HAVING IN MIND," SAID THE
DISSENTERS, "THE PURPOSE OF THE STATUTE AND THE BREADTH OF ITS LANGUAGE
IT WOULD SEEM TO BE OF NO CONSEQUENCE WHAT PARTICULAR CONVEYANCERS'
DEVICE - WHAT PARTICULAR STRING - THE DECEDENT SELECTED TO HOLD IN
SUSPENSE THE ULTIMATE DISPOSITION OF HIS PROPERTY UNTIL THE MOMENT OF
HIS DEATH.  IN DETERMINING WHETHER A TAXABLE TRANSFER BECOMES COMPLETE
ONLY AT DEATH WE LOOK TO SUBSTANCE, NOT TO FORM  ...  HOWEVER WE LABEL
THE DEVICE IT IS BUT A MEANS BY WHICH THE GIFT IS RENDERED INCOMPLETE
UNTIL THE DONOR'S DEATH."  296 U.S. AT 47.  FOR THE MAJORITY IN THE ST.
LOUIS TRUST COMPANY CASES, THESE PRACTICALITIES HAD LESS SIGNIFICANCE
THAN THE FORMAL CATEGORIES OF PROPERTY LAW.  THE GRANTOR'S DEATH, THE
MAJORITY SAID, IN HELVERING V. ST. LOUIS TRUST CO., "SIMPLY PUT AN END
TO WHAT, AT BEST, WAS A MERE POSSIBILITY OF A REVERTER BY EXTINGUISHING
IT - THAT IS TO SAY, BY CONVERTING WHAT WAS MERELY POSSIBLE INTO AN
UTTER IMPOSSIBILITY."  296 U.S. 39, 43.  THIS WAS PRECISELY THE MODE OF
ARGUMENT WHICH HAD BEEN REJECTED IN KLEIN V. UNITED STATES, SUPRA. 

WE ARE NOW ASKED TO ACCEPT ALL THREE DECISIONS AS CONSTITUTING A
COHERENT BODY OF LAW, AND TO APPLY THEIR DISTINCTIONS TO THE TRUSTS
BEFORE US. 

IN NOS. 110, 111 AND 112(HELVERING V. HALLOCK) THE DECEDENT IN 1919
CREATED A TRUST UNDER A SEPARATION AGREEMENT, GIVING THE INCOME TO HIS
WIFE FOR LIFE, WITH THIS FURTHER PROVISION: 

"IF AND WHEN ANNE LAMSON HALLOCK SHALL DIE THEN AND IN SUCH EVENT
...  THE WITHIN TRUST SHALL TERMINATE AND SAID TRUSTEE SHALL  ...  PAY
PARTY OF THE FIRST PART IF HE THEN BE LIVING ANY ACCRUED INCOME THEN
REMAINING IN SAID TRUST FUND AND SHALL  ...  DELIVER FORTHWITH TO PARTY
OF THE FIRST PART, THE PRINCIPAL OF THE SAID TRUST FUND.  IF AND IN THE
EVENT SAID PARTY OF THE FIRST PART SHALL NOT BE LIVING THEN AND IN SUCH
EVENT PAYMENT AND DELIVERY OVER SHALL BE MADE TO LEVITT HALLOCK AND
HELEN HALLOCK, RESPECTIVELY SON AND DAUGHTER OF THE PARTY OF THE FIRST
PART SHARE AND SHARE ALIKE  ..."  WHEN THE SETTLOR DIED IN 1932, HIS
DIVORCED WIFE, THE LIFE BENEFICIARY, SURVIVED HIM.  THE CIRCUIT COURT
OF APPEALS HELD THAT THE TRUST INSTRUMENT HAD CONVEYED THE "WHOLE
INTEREST" OF THE DECEDENT, SUBJECT ONLY TO A "CONDITION SUBSEQUENT,"
WHICH LEFT HIM NOTHING "EXCEPT A MERE POSSIBILITY OF REVERTER." 
COMMISSIONER V. HALLOCK, 102 F.2D 1, 3-4. 

IN NO. 183(ROTHENSIES V. HUSTON) THE DECEDENT BY AN ANTE-NUPTIAL
AGREEMENT IN 1925 CONVEYED PROPERTY IN TRUST, THE INCOME TO BE PAID TO
HIS PROSPECTIVE WIFE DURING HER LIFE, SUBJECT TO THE FOLLOWING
DISPOSITION OF THE PRINCIPAL: 

"IN TRUST IF THE SAID RAE SPEKTOR SHALL DIE DURING THE LIFETIME OF
SAID GEORGE F. UBER TO PAY OVER THE PRINCIPAL AND ALL ACCUMULATED
INCOME THEREOF UNTO THE SAID GEORGE F. UBER IN FEE, FREE AND CLEAR OF
ANY TRUST. 

"IN TRUST IF THE SAID RAE SPEKTOR AFTER THE MARRIAGE SHALL SURVIVE
THE SAID GEORGE F. UBER TO PAY OVER THE PRINCIPAL AND ALL ACCUMULATED
INCOME UNTO THE SAID RAE SPEKTOR - THEN RAE UBER - IN FEE, FREE AND
CLEAR OF ANY TRUST."    MRS. UBER OUTLIVED HER HUSBAND, WHO DIED IN
1934.  THE CIRCUIT COURT OF APPEALS DEEMED BECKER V. ST. LOUIS TRUST
CO. CONTROLLING AGAINST THE INCLUSION OF THE TRUST CORPUS IN THE GROSS
ESTATE. 

FINALLY, IN NO. 399(BRYANT V. HELVERING), THE TESTATOR PROVIDED FOR
THE PAYMENT OF TRUST INCOME TO HIS WIFE DURING HER LIFE AND UPON HER
DEATH TO THE SETTLOR HIMSELF IF HE SHOULD SURVIVE HER.  THE INSTRUMENT,
WHICH WAS EXECUTED IN 1917, CONTINUED: 

"UPON THE DEATH OF THE SURVIVOR OF SAID IDA BRYANT AND THE PARTY OF
THE FIRST PART, UNLESS THIS TRUST SHALL HAVE BEEN MODIFIED OR REVOKED
AS HEREINAFTER PROVIDED, TO CONVEY, TRANSFER, AND PAY OVER THE
PRINCIPAL OF THE TRUST FUND TO THE EXECUTORS OR ADMINISTRATORS OF THE
ESTATE OF THE PARTY HERETO OF THE FIRST PART." 

THERE WAS A FURTHER PROVISION GIVING TO THE DECEDENT AND HIS WIFE
JOINTLY DURING THEIR LIVES, AND TO EITHER OF THEM AFTER THE DEATH OF
THE OTHER, POWER TO MODIFY, ALTER OR REVOKE THE INSTRUMENT.  THE WIFE
SURVIVED THE HUSBAND, WHO DIED IN 1930.  THE BOARD OF TAX APPEALS
ALLOWED THE COMMISSIONER TO INCLUDE IN THE DECEDENT'S GROSS ESTATE ONLY
THE VALUE OF A "VESTED REVERSIONARY INTEREST" WHICH THE BOARD HELD THE
GRANTOR HAD RESERVED TO HIMSELF.  ON APPEAL BY THE TAX-PAYER, THE
CIRCUIT COURT OF APPEALS SUSTAINED THIS DETERMINATION. 

THE TERMS OF THESE GRANTS DIFFER IN DETAIL FROM ONE ANOTHER, AS ALL
THREE DIFFER FROM THE FORMULAS OF CONVEYANCE USED IN THE KLEIN AND ST.
LOUIS TRUST CASES.  IT THEREFORE BECOMES IMPORTANT TO INQUIRE WHETHER
THE TECHNICAL FORMS IN WHICH INTERESTS CONTINGENT UPON DEATH ARE CAST
SHOULD CONTROL OUR DECISION.  IF SO, IT BECOMES NECESSARY TO DETERMINE
WHETHER THE DIFFERING TERMS OF CONVEYANCE NOW IN ISSUE APPROXIMATE MORE
CLOSELY THOSE USED IN THE KLEIN CASE AND ARE THEREFORE GOVERNED BY IT,
OR HAVE A GREATER VERBAL RESEMBLANCE TO THOSE THAT SAVED THE TAX IN THE
ST. LOUIS TRUST CASES.  SUCH AN ESSAY IN LINGUISTIC REFINEMENT WOULD
STILL FURTHER EMBARRASS EXISTING INTRICACIES.  IT MIGHT DEMONSTRATE
VERBAL INGENUITY, BUT IT COULD HARDLY STRENGTHEN THE RATIONAL
FOUNDATIONS OF LAW.  THE LAW OF CONTINGENT AND VESTED REMAINDERS IS
FULL OF CASUISTRIES.  THERE ARE GREAT DIVERSITIES AMONG THE SEVERAL
STATES AS TO THE CONVEYANCING SIGNIFICANCE OF LIKE GRANTS; SOMETIMES IN
THE SAME STATE THERE ARE CONFLICTING LINES OF DECISION, ONE SERIES
IGNORING THE OTHER.  ATTEMPTS BY THE BOARD OF TAX APPEALS AND THE
CIRCUIT COURTS OF APPEAL TO ADMINISTER SEC. 302(C) BY REFERENCE TO
THESE DISTINCTIONS ABUNDANTLY ILLUSTRATE THE INEVITABLE CONFUSION.  FN4
ONE OF THE CASES AT BAR, NO. 399, REVEALS VIVIDLY THE SNARES WHICH
INEVITABLY AWAIT AN ATTEMPT TO BASE ESTATE TAX LAW ON THE "NICETIES OF
THE ART OF CONVEYANCING."  IN CONNECTION WITH THE ASCERTAINMENT OF ITS
OWN DEATH DUTIES, THE SUPREME COURT OF ERRORS OF CONNECTICUT DEFINED
THE NATURE OF THE INTEREST WHICH THE DECEDENT IN THAT CASE RETAINED
AFTER HIS INTER VIVOS TRANSFER.  BRYANT V. HACKETT, 118 CONN. 233; 171
A. 664.  AND YET THE NATURE OF THAT INTEREST UNDER CONNECTICUT LAW AND
THE SCOPE OF THE CONNECTICUT COURT'S ADJUDICATION OF THAT INTEREST WERE
MADE THE SUBJECT OF LIVELY CONTROVERSY BEFORE US.  THE IMPORTATION OF
THESE DISTINCTIONS AND CONTROVERSIES FROM THE LAW OF PROPERTY INTO THE
ADMINISTRATION OF THE ESTATE TAX PRECLUDES A FAIR AND WORKABLE TAX
SYSTEM.  ESSENTIALLY THE SAME INTERESTS, JUDGED FROM THE POINT OF VIEW
OF WEALTH, WILL BE TAXABLE OR NOT, DEPENDING UPON ELUSIVE AND SUBTLE
CASUISTRIES WHICH MAY HAVE THEIR HISTORIC JUSTIFICATION BUT POSSESS NO
RELEVANCE FOR TAX PURPOSES.  FN5  THESE UNWITTY DIVERSITIES OF THE LAW
OF PROPERTY DERIVE FROM MEDIEVAL CONCEPTS AS TO THE NECESSITY OF A
CONTINUOUS SEISIN.  FN6  DISTINCTIONS WHICH ORIGINATED UNDER A FEUDAL
ECONOMY WHEN LAND DOMINATED SOCIAL RELATIONS ARE PECULIARLY IRRELEVANT
IN THE APPLICATION OF TAX MEASURES NOW SO LARGELY DIRECTED TOWARD
INTANGIBLE WEALTH. 

OUR REAL PROBLEM, THEREFORE, IS TO DETERMINE WHETHER WE ARE TO ADHERE
TO A HARMONIZING PRINCIPLE IN THE CONSTRUCTION OF SEC. 302(C), OR
WHETHER WE ARE TO MULTIPLY GOSSAMER DISTINCTIONS BETWEEN THE PRESENT
CASES AND THE THREE EARLIER ONES.  FREED FROM THE DISTINCTIONS
INTRODUCED BY THE ST. LOUIS TRUST CASES, THE KLEIN CASE FURNISHES SUCH
A HARMONIZING PRINCIPLE.  DOES, THEN, THE DOCTRINE OF STARE DECISIS
COMPEL US TO ACCEPT THE DISTINCTIONS MADE IN THE ST. LOUIS TRUST CASES
AS STARTING POINTS FOR STILL FINER DISTINCTIONS SPUN OUT OF THE
TENUOSITIES OF SURVIVING FEUDAL LAW?  WE THINK NOT.  WE THINK THE KLEIN
CASE REJECTED THE PRESUPPOSITION OF SUCH DISTINCTIONS FOR THE FISCAL
JUDGMENTS WHICH SEC. 302(C) DEMANDS. 

WE RECOGNIZE THAT STARE DECISIS EMBODIES AN IMPORTANT SOCIAL POLICY. 
IT REPRESENTS AN ELEMENT OF CONTINUITY IN LAW, AND IS ROOTED IN THE
PSYCHOLOGIC NEED TO SATISFY REASONABLE EXPECTATIONS.  BUT STARE DECISIS
IS A PRINCIPLE OF POLICY AND NOT A MECHANICAL FORMULA OF ADHERENCE TO
THE LATEST DECISION, HOWEVER RECENT AND QUESTIONABLE, WHEN SUCH
ADHERENCE INVOLVES COLLISION WITH A PRIOR DOCTRINE MORE EMBRACING IN
ITS SCOPE, INTRINSICALLY SOUNDER, AND VERIFIED BY EXPERIENCE. 

NOR HAVE WE IN THE ST. LOUIS TRUST CASES RULES OF DECISION AROUND
WHICH, BY THE ACCRETION OF TIME AND THE RESPONSE OF AFFAIRS,
SUBSTANTIAL INTERESTS HAVE ESTABLISHED THEMSELVES.  NO SUCH CONJUNCTION
OF CIRCUMSTANCES REQUIRES PERPETUATION OF WHAT WE MUST REGARD AS THE
DEVIATIONS OF THE ST. LOUIS TRUST DECISIONS FROM THE KLEIN DOCTRINE. 
WE HAVE NOT BEFORE US INTERESTS CREATED OR MAINTAINED IN RELIANCE ON
THOSE CASES.  WE DO NOT MEAN TO IMPLY THAT THE INEVITABLY EMPIRIC
PROCESS OF CONSTRUING TAX LEGISLATION SHOULD GIVE RISE TO AN ESTOPPEL
AGAINST THE RESPONSIBLE EXERCISE OF THE JUDICIAL PROCESS.  BUT IT IS A
FACT THAT IN ALL THE CASES BEFORE US THE SETTLEMENTS WERE MADE AND THE
SETTLORS DIED BEFORE THE ST. LOUIS TRUST DECISIONS. 

NOR DOES WANT OF SPECIFIC CONGRESSIONAL REPUDIATIONS OF THE ST. LOUIS
TRUST CASES SERVE AS AN IMPLIED INSTRUCTION BY CONGRESS TO US NOT TO
RECONSIDER, IN THE LIGHT OF NEW EXPERIENCE, WHETHER THOSE DECISIONS, IN
CONJUNCTION WITH THE KLEIN CASE, MAKE FOR DISSONANCE OF DOCTRINE.  IT
WOULD REQUIRE VERY PERSUASIVE CIRCUMSTANCES ENVELOPING CONGRESSIONAL
SILENCE TO DEBAR THIS COURT FROM REEXAMINING ITS OWN DOCTRINES.  TO
EXPLAIN THE CAUSE OF NON-ACTION BY CONGRESS WHEN CONGRESS ITSELF SHEDS
NO LIGHT IS TO VENTURE INTO SPECULATIVE UNREALITIES.  FN7  CONGRESS MAY
NOT HAVE HAD ITS ATTENTION DIRECTED TO AN UNDESIRABLE DECISION; AND
THERE IS NO INDICATION THAT AS TO THE ST. LOUIS TRUST CASES IT HAD,
EVEN BY ANY BILL THAT FOUND ITS WAY INTO A COMMITTEE PIGEON-HOLE. 
CONGRESS MAY NOT HAVE HAD ITS ATTENTION SO DIRECTED FOR ANY NUMBER OF
REASONS THAT MAY HAVE MOVED THE TREASURY TO STAY ITS HAND.  BUT
CERTAINLY SUCH INACTION BY THE TREASURY CAN HARDLY OPERATE AS A
CONTROLLING ADMINISTRATIVE PRACTICE, THROUGH ACQUIESCENCE, TANTAMOUNT
TO AN ESTOPPEL BARRING REEXAMINATION BY THIS COURT OF DISTINCTIONS
WHICH IT HAD DRAWN.  FN8  VARIOUS CONSIDERATIONS OF PARLIAMENTARY
TACTICS AND STRATEGY MIGHT BE SUGGESTED AS REASONS FOR THE INACTION OF
THE TREASURY AND OF CONGRESS, BUT THEY WOULD ONLY BE SUFFICIENT TO
INDICATE THAT WE WALK ON QUICKSAND WHEN WE TRY TO FIND IN THE ABSENCE
OF CORRECTIVE LEGISLATION A CONTROLLING LEGAL PRINCIPLE. 

THIS COURT, UNLIKE THE HOUSE OF LORDS,  FN9  HAS FROM THE BEGINNING
REJECTED A DOCTRINE OF DISABILITY AT SELF-CORRECTION.  WHATEVER ELSE
MAY BE SAID ABOUT WANT OF CONGRESSIONAL ACTION TO MODIFY BY LEGISLATION
THE RESULT IN THE ST. LOUIS TRUST CASES, IT WILL HARDLY BE URGED THAT
THE REASON WAS CONGRESSIONAL APPROVAL OF THOSE DISTINCTIONS BETWEEN THE
ST. LOUIS TRUST AND THE KLEIN CASES TO WHICH FOUR MEMBERS OF THIS COURT
COULD NOT GIVE ASSENT.  BY IMPUTING TO CONGRESS A HYPOTHETICAL
RECOGNITION OF COHERENCE BETWEEN THE KLEIN AND THE ST. LOUIS TRUST
CASES, WE CANNOT EVADE OUR OWN RESPONSIBILITY FOR RECONSIDERING IN THE
LIGHT OF FURTHER EXPERIENCE, THE VALIDITY OF DISTINCTIONS WHICH THIS
COURT HAS ITSELF CREATED.  OUR PROBLEM THEN IS NOT THAT OF REJECTING A
SETTLED STATUTORY CONSTRUCTION.  THE REAL PROBLEM IS WHETHER A
PRINCIPLE SHALL PREVAIL OVER ITS LATER MISAPPLICATIONS.  SURELY WE ARE
NOT BOUND BY REASON OR BY THE CONSIDERATIONS THAT UNDERLIE STARE
DECISIS TO PERSEVERE IN DISTINCTIONS TAKEN IN THE APPLICATION OF A
STATUTE WHICH, ON FURTHER EXAMINATION, APPEAR CONSONANT NEITHER WITH
THE PURPOSES OF THE STATUTE NOR WITH THIS COURT'S OWN CONCEPTION OF IT.
WE THEREFORE REJECT AS UNTENABLE THE DIVERSITIES TAKEN IN THE ST.
LOUIS TRUST CASES IN APPLYING THE KLEIN DOCTRINE - UNTENABLE BECAUSE
THEY DRASTICALLY EAT INTO THE PRINCIPLE WHICH THOSE CASES PROFESSED TO
ACCEPT AND TO WHICH WE ADHERE. 

IN NOS. 110, 111, 112 AND 183, THE JUDGMENTS ARE REVERSED. 

IN NO. 399, THE JUDGMENT IS AFFIRMED. 

FN1  C. 27, 44 STAT. 9, AS AMENDED BY SEC. 803 OF THE REVENUE ACT OF
1932, C. 209, 47 STAT. 169, 279: 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR
PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED - 

     .         .         .      .         . 

"(C)  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS
AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, IN CONTEMPLATION OF
OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH, OR OF WHICH HE HAS AT ANY TIME MADE A TRANSFER, BY TRUST OR
OTHERWISE, UNDER WHICH HE HAS RETAINED FOR HIS LIFE OR FOR ANY PERIOD
NOT ASCERTAINABLE WITHOUT REFERENCE TO HIS DEATH OR FOR ANY PERIOD
WHICH DOES NOT IN FACT END BEFORE HIS DEATH (1) THE POSSESSION OR
ENJOYMENT OF, OR THE RIGHT TO THE INCOME FROM, THE PROPERTY, OR (2) THE
RIGHT, EITHER ALONE OR IN CONJUNCTION WITH ANY PERSON, TO DESIGNATE THE
PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE INCOME
THEREFROM; EXCEPT IN CASE OF A BONA FIDE SALE FOR AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH.  ANY TRANSFER OF A MATERIAL
PART OF HIS PROPERTY IN THE NATURE OF A FINAL DISPOSITION OR
DISTRIBUTION THEREOF, MADE BY THE DECEDENT WITHIN TWO YEARS PRIOR TO
HIS DEATH WITHOUT SUCH CONSIDERATION, SHALL, UNLESS SHOWN TO THE
CONTRARY, BE DEEMED TO HAVE BEEN MADE IN CONTEMPLATION OF DEATH WITHIN
THE MEANING OF THIS TITLE." 

FN2  PETITIONER'S BRIEF, KLEIN V. UNITED STATES, PP. 11-13. 

FN3  SOME INDICATION OF THE INFLUENCE OF KLEIN V. UNITED STATES UPON
THE LOWER COURTS MAY BE FOUND IN SARGENT V. WHITE, 50 F.2D 410 AND
UNION TRUST CO. V. UNITED STATES, 54 F.2D 152, CERT. DENIED, 286 U.S.
547.  CF. COMMISSIONER V. SCHWARZ, 74 F.2D 712. 

FN4  SEE, FOR EXAMPLE, THE ATTEMPTS BY THE BOARD OF TAX APPEALS TO
DEAL WITH THE PECULIARITIES OF NEW YORK LAW IN THE FIELD OF VESTED AND
CONTINGENT REMAINDERS.  ELIZABETH B. WALLACE, 27 B.T.A. 902; LOUIS C.
RAEGNER, JR., 29 B.T.A. 1243.  IN BOTH OF THESE CASES LIMITATIONS WHICH
WOULD PROBABLY HAVE BEEN "CONTINGENT" AT "COMMON LAW" WERE HELD TO BE
"VESTED" UNDER THE NEW YORK STATUTORY RULE.  CF. COMMISSIONER V.
SCHWARZ, 74 F.2D 712; FLORA M. BONNEY, 29 B.T.A. 45. 

FN5  CF. LYETH V. HOEY, 305 U.S. 188, 194.  SEE PAUL, THE EFFECT ON
FEDERAL TAXATION OF LOCAL RULES OF PROPERTY IN SELECTED STUDIES IN
FEDERAL TAXATION (2ND SERIES), PP. 23-28; DEVELOPMENTS IN THE LAW -
TAXATION, 47 HARV. L. REV. 1209, 1238-41; NOTE, 49 HARV. L. REV. 462. 

FN6  SEE, FOR EXAMPLE, FEARNE, CONTINGENT REMAINDERS, (4TH AM. ED.),
PP. 3-241; GRAY, RULE AGAINST PERPETUITIES (2ND ED.), PP. 99-118; VII
HOLDSWORTH, HISTORY OF ENGLISH LAW, 81 ET SEQ.; 1 SIMES, FUTURE
INTERESTS, SECS. 64-96.  THE CONFUSION APT TO BE ENGENDERED BY JUDICIAL
FORAYS INTO THIS FIELD IS WELL ILLUSTRATED BY THE USE OF THE TERM
"POSSIBILITY OF REVERTER" BY THE MAJORITY IN HELVERING V. ST. LOUIS
UNION TRUST CO. "A POSSIBILITY OF REVERTER" IS TRADITIONALLY DEFINED AS
THE INTEREST REMAINING IN A GRANTOR WHO HAS CONVEYED A DETERMINABLE
FEE.  THE DEFINITION HAS NOT BEEN THOUGHT TO HAVE ANY RELATION TO THE
REVERSIONARY INTEREST OF A GRANTOR WHO HAS TRANSFERRED EITHER A VESTED
OR CONTINGENT REMAINDER IN FEE.  SEE GRAY, RULE AGAINST PERPETUITIES
(2ND ED.), SECS. 13-51. 

FN7  WE ARE NOT UNMINDFUL OF AMENDMENTS TO THE ESTATE TAX LAW TO
WHICH OTHER DECISIONS OF THIS COURT GAVE RISE.  THUS BY SEC. 805 OF THE
REVENUE ACT OF 1936, C. 690, 49 STAT. 1648, CONGRESS UNDID THE
CONSTRUCTION WHICH THIS COURT GAVE THE ESTATE TAX LAW IN ANOTHER
CONNECTION BY A DECISION RENDERED ON THE SAME DAY AS WERE THE ST. LOUIS
TRUST CASES.  CF. WHITE V. POOR, 296 U.S. 98.  THIS CASE AROSE UNDER
SEC. 302(D) AND NOT SEC. 302(C).  BUT, IN ANY EVENT, THE FACT OF
CONGRESSIONAL ACTION IN DEALING WITH ONE PROBLEM WHILE SILENT ON THE
DIFFERENT PROBLEMS CREATED BY THE ST. LOUIS TRUST CASES, DOES NOT IMPLY
CONTROLLING ACCEPTANCE BY CONGRESS OF THOSE CASES. 

BY THE JOINT RESOLUTION OF MARCH 3, 1931, C. 454, 46 STAT. 1516,
CONGRESS DISPLACED THE CONSTRUCTION WHICH THIS COURT PUT UPON SEC.
302(C) IN THOSE CASES WHEREIN IT WAS HELD THAT THE RESERVATION BY A
DECEDENT OF A LIFE ESTATE IN PROPERTY CONVEYED INTER VIVOS, DID NOT
CONSTITUTE A SUFFICIENT POSTPONEMENT OF THE REMAINDER TO BRING IT INTO
THE GRANTOR'S GROSS ESTATE.  MAY V. HEINER, 281 U.S. 238; BURNET V.
NORTHERN TRUST CO., 283 U.S. 782; MORSMAN V. BURNET, 283 U.S. 783;
MCCORMICK V. BURNET, 283 U.S. 784.  THE SPECULATIVE ARGUMENTS THAT MAY
BE DRAWN FROM AD HOC LEGISLATION AFFECTING ONE SET OF DECISIONS AND THE
WANT OF SUCH LEGISLATION TO MODIFY ANOTHER SET OF DECISIONS DEALING
WITH A SOMEWHAT DIFFERENT THOUGH COGNATE PROBLEM ARE WELL ILLUSTRATED
BY THIS REMEDIAL AMENDMENT.  FOR IT MAY BE URGED WITH CONSIDERABLE
PLAUSIBILITY THAT IN 1931 CONGRESS HAD IN PRINCIPLE ALREADY REJECTED
THE GENERAL ATTITUDE UNDERLYING THE ST. LOUIS TRUST CASES, AS
ILLUSTRATED BY THE FACT THAT IN THOSE CASES THE MAJORITY, IN PART AT
LEAST, RELIED UPON THE CONGRESSIONALLY DISCARDED MAY V. HEINER
DOCTRINE.    WHATEVER MAY BE THE SCOPE OF THE DOCTRINE THAT RE
ENACTMENT OF A STATUTE IMPLIEDLY ENACTS A SETTLED JUDICIAL CONSTRUCTION
PLACED UPON THE RE-ENACTED STATUTE, THAT DOCTRINE HAS NO RELEVANCE TO
THE PRESENT PROBLEM.  SINCE THE DECISIONS IN THE ST. LOUIS TRUST CASES,
CONGRESS HAS NOT RE-ENACTED SEC. 302(C).  THE AMENDMENTS THAT CONGRESS
MADE TO OTHER PROVISIONS OF SEC. 302 IN CONNECTION WITH OTHER
SITUATIONS THAN THOSE NOW BEFORE THE COURT, WERE MADE WITHOUT RE
ENACTING SEC. 302(C).  NOR HAS CONGRESS, UNDER ANY RATIONAL CANONS OF
LEGISLATIVE SIGNIFICANCE, BY ITS COMPILATION OF INTERNAL REVENUE LAWS
TO FORM THE INTERNAL REVENUE CODE OF 1939, 53 STAT. 1, IMPLIEDLY
ENACTED INTO LAW A PARTICULAR DECISION WHICH, IN THE LIGHT OF LATER
EXPERIENCE, IS SEEN TO CREATE CONFUSION AND CONFLICT IN THE APPLICATION
OF A SETTLED PRINCIPLE OF INTERNAL REVENUE LEGISLATION. 

HERE, UNLIKE THE SITUATION IN SUCH CASES AS NATIONAL LEAD CO. V.
UNITED STATES, 252 U.S. 140, 146-47, AND MURPHY OIL CO. V. BURNET, 287
U.S. 299, 302-3, WE HAVE NO CONJUNCTION OF LONG, UNIFORM ADMINISTRATIVE
CONSTRUCTION AND SUBSEQUENT RE-ENACTMENTS OF AN AMBIGUOUS STATUTE TO
GIVE GROUND FOR IMPLYING LEGISLATIVE ADOPTION OF SUCH CONSTRUCTION. 
SEE PREFACE, INTERNAL REVENUE CODE, 53 STAT. III; COMPARE SMILEY V.
HOLM, 285 U.S. 355, 373, AND WARNER V. GOLTRA, 293 U.S. 155, 161. 

FN8  SINCE THE TREASURY HAS AMENDED ITS REGULATIONS IN AN EFFORT TO
CONFORM ADMINISTRATIVE PRACTICE TO THE COMPULSIONS OF THE ST. LOUIS
TRUST CASES, IT CANNOT BE DEEMED TO HAVE BOUND ITSELF BY THIS CHANGE. 
ART. 17, REG. 80(1937 ED.), P. 42.  CF. ESTATE OF SANFORD V.
COMMISSIONER, 308 U.S. 39. 

FN9  LONDON STREET TRAMWAYS CO. V. LONDON COUNTY COUNCIL, (1898) A.C.
375.  BUT THE RULE IS OTHERWISE IN THE PRIVY COUNCIL.  READ V. BISHOP
OF LINCOLN, (1892) A.C. 644, 655.  FOR THE ROLE OF PRECEDENT IN ENGLISH
LAW, SEE, INTER ALIA, 2 YORKE, LIFE OF LORD CHANCELLOR HARDWICKE, PP.
425, 498; GOODHART, PRECEDENT IN ENGLISH AND CONTINENTAL LAW, 50 L.Q.
REV. 40; HOLDSWORTH, CASE LAW, IBID. 180; LORD WRIGHT IN WESTMINSTER
COUNCIL V. SOUTHERN RY. CO., (1936) A.C. 511, 562-63; ALLEN, LAW IN THE
MAKING, 3RD ED., PP. 224 ET SEQ. 

THE CHIEF JUSTICE CONCURS IN THE RESULT UPON THE GROUND THAT EACH OF
THESE CASES IS CONTROLLED BY OUR DECISION IN KLEIN V. UNITED STATES,
283 U.S. 231. 

MR. JUSTICE ROBERTS, DISSENTING. 

THERE IS CERTAINLY A DISTINCTION IN FACT BETWEEN THE TRANSACTION
CONSIDERED IN KLEIN V. UNITED STATES, 283 U.S. 231, AND THOSE UNDER
REVIEW IN HELVERING V. ST. LOUIS UNION TRUST CO., 296 U.S. 39, AND
BECKER V. ST. LOUIS UNION TRUST CO., 296 U.S. 48.  THE COURTS, THE
BOARD OF TAX APPEALS, AND THE TREASURY HAVE FOUND NO DIFFICULTY IN
OBSERVING THE DISTINCTION IN SPECIFIC CASES.  I BELIEVE IT IS ONE OF
SUBSTANCE, NOT MERELY OF TERMINOLOGY, AND NOT DEPENDENT ON THE NICETIES
OF CONVEYANCING OR RECONDITE DOCTRINES OF ANCIENT PROPERTY LAW. 

BUT IF I AM WRONG IN THIS, I STILL THINK THE JUDGMENTS IN NOS. 110
112, AND 183 SHOULD BE AFFIRMED AND THAT IN 399 SHOULD BE REVERSED. 
THE RULE OF INTERPRETATION ADOPTED IN THE ST. LOUIS UNION TRUST COMPANY
CASES SHOULD NOW BE FOLLOWED FOR TWO REASONS:  FIRST, THAT RULE WAS
INDICATED BY DECISIONS OF THIS COURT AS THE ONE APPLICABLE IN THE
CIRCUMSTANCES HERE DISCLOSED, AS EARLY AS 1927; WAS PROGRESSIVELY
DEVELOPED AND APPLIED BY THE BOARD OF TAX APPEALS, THE LOWER FEDERAL
COURTS, AND THIS COURT, UP TO THE DECISION OF MCCORMICK V. BURNET, 283
U.S. 784, IN 1931; AND HAS SINCE BEEN FOLLOWED BY THOSE TRIBUNALS IN
NOT LESS THAN FIFTY CASES.  IT OUGHT NOT TO BE SET ASIDE AFTER SUCH A
HISTORY.  SECONDLY.  THE RULE WAS NOT CONTRARY TO ANY TREASURY
REGULATION; WAS, INDEED, IN ACCORD WITH SUCH REGULATIONS AS THERE WERE
ON THE SUBJECT; WAS SUBSEQUENTLY EMBODIED IN A SPECIFIC REGULATION,
AND, WITH THIS BACKGROUND, CONGRESS HAS THREE TIMES REENACTED THE LAW
WITHOUT AMENDING SEC. 302(C) IN RESPECT OF THE MATTER HERE IN ISSUE. 
THE SETTLED DOCTRINE, THAT REENACTMENT OF A STATUTE SO CONSTRUED,
WITHOUT ALTERATION, RENDERS SUCH CONSTRUCTION A PART OF THE STATUTE
ITSELF, SHOULD NOT BE IGNORED BUT OBSERVED. 

1.  THE REVENUE ACT OF 1926 LAYS A TAX UPON THE TRANSFER OF THE NET
ESTATE OF A DECEDENT.  THAT ESTATE IS DEFINED TO EMBRACE THE VALUE OF
ALL HIS PROPERTY, REAL OR PERSONAL, TANGIBLE OR INTANGIBLE (LESS
CERTAIN DEDUCTIONS), AT THE TIME OF HIS DEATH.  FN1  AS THE TREASURY
DEPARTMENT STATED IN ITS EARLIEST REGULATIONS:  "THE STATUTE ALSO
INCLUDES ONLY PROPERTY RIGHTS EXISTING IN THE DECEDENT IN HIS LIFETIME
AND PASSING TO HIS ESTATE."  FN2  IN ALL THE TREASURY REGULATIONS, FROM
THE EARLIEST TO THE ONE NOW IN FORCE, APPLICABLE TO THE RELEVANT
A DECEDENT THE TREASURY HAS USED THIS LANGUAGE:  FN3 

"THE VALUE OF A VESTED REMAINDER SHOULD BE INCLUDED IN THE GROSS
ESTATE.  NOTHING SHOULD BE INCLUDED, HOWEVER, ON ACCOUNT OF A
CONTINGENT REMAINDER WHERE (IN THE CASE) THE CONTINGENCY DOES NOT
HAPPEN IN THE LIFETIME OF THE DECEDENT, AND THE INTEREST CONSEQUENTLY
LAPSES AT HIS DEATH."  THE NEXT SENTENCE:  "NOR SHOULD ANYTHING BE
INCLUDED ON ACCOUNT OF A LIFE ESTATE IN THE DECEDENT," HAS BEEN
REPEATED IN SUBSTANCE IN THE CORRESPONDING ARTICLE OF ALL SUBSEQUENT
REGULATIONS. 

IF BY THE WILL OF HIS GRANDMOTHER, A IS GIVEN A LIFE ESTATE, WITH
REMAINDER TO ANOTHER, HIS EXECUTOR IS NOT BOUND TO RETURN ANYTHING ON
ACCOUNT OF THE LIFE ESTATE BECAUSE, IN RESPECT OF IT, NOTHING PASSES ON
A'S DEATH.  THE ESTATE SIMPLY CEASES.  THE TREASURY HAS NEVER CONTENDED
THE CONTRARY.  IF, HOWEVER, A'S GRANDMOTHER GAVE A LIFE ESTATE TO B,
AND THE REMAINDER TO A, A HAS SOMETHING WHICH, AT HIS DEATH, WILL PASS
TO SOMEONE ELSE UNDER HIS WILL, OR UNDER THE INTESTATE LAWS.  THE
STATUTE PLAINLY TAXES THE VALUE OF THE INTEREST THUS TRANSFERRED AT A'S
DEATH. 

IF A'S GRANDMOTHER, BY HER WILL, GAVE INTERESTS IN SUCCESSION TO
SPECIFIC PERSONS AND THEN PROVIDED THAT IF A SHOULD OUTLIVE ALL THESE
PERSONS THE PROPERTY SHOULD PASS TO HIM, A WOULD HAVE A CHANCE TO
RECEIVE AND ENJOY THE PROPERTY.  IF HE DID SO RECEIVE IT, IT WOULD PASS
AS PART OF HIS ESTATE.  IF HE DIED BEFORE THE OTHER BENEFICIARIES NAMED
BY HIS GRANDMOTHER HIS DEATH WOULD DEPRIVE HIM OF THAT CHANCE.  THE
CHANCE WOULD NOT PASS TO ANYONE ELSE.  NO TAX WOULD BE LAID ON THE
SUPPOSED VALUE OF HIS CONTINGENT INTEREST OR CHANCE, BECAUSE THE CHANCE
CANNOT, AT HIS DEATH, PASS BY HIS WILL, OR THE INTESTATE LAWS, TO
ANOTHER.  I DO NOT UNDERSTAND THE GOVERNMENT HAS EVER DENIED THIS. 

SUBSECTION (C) OF SEC. 302 LAYS DOWN NO DIFFERENT RULE RESPECTING
SIMILAR INTERESTS CREATED BY IRREVOCABLE DEED OR AGREEMENT OF THE
DECEDENT.  THE SUBSECTION DIRECTS THAT THERE SHALL BE INCLUDED IN THE
GROSS ESTATE THE VALUE, AT THE TIME OF THE DECEDENT'S DEATH, OF ANY
INTEREST IN PROPERTY OF WHICH THE DECEDENT HAS AT ANY TIME MADE A
TRANSFER "INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR
AFTER HIS DEATH" (EXCLUDING SALES FOR ADEQUATE CONSIDERATION). 

A TRANSFER CAN ONLY TAKE EFFECT, WITHIN THE MEANING OF THE STATUTE,
BY THE SHIFTING OF POSSESSION OR ENJOYMENT FROM THE DECEDENT TO LIVING
PERSONS.  THE FACT THAT THE TERMS OF THE GIFT BRING ABOUT SOME OTHER
EFFECT AT THE DECEDENT'S DEATH IS IMMATERIAL.  THE FACT THAT SOMETHING
MAY HAPPEN IN RESPECT OF THE BENEFICIAL ENJOYMENT OF THE PROPERTY
CONDITIONED UPON THE DECEDENT'S DEATH IS IRRELEVANT SO LONG AS THAT
SOMETHING IS NOT THE SHIFTING OF POSSESSION OR BENEFICIAL ENJOYMENT
FROM THE DECEDENT.  THIS IS MADE CLEAR BY REINECKE V. NORTHERN TRUST
CO., 278 U.S. 339, 347. 

IF A MAKES A PRESENT IRREVOCABLE TRANSFER IN TRUST, CONDITIONED THAT
HE SHALL RECEIVE THE INCOME FOR LIFE AND, AT HIS DEATH, THE PRINCIPAL
SHALL GO TO B, B IS AT ONCE LEGALLY INVESTED WITH THE PRINCIPAL.  A'S
LIFE ESTATE CEASES AT HIS DEATH.  NOTHING THEN PASSES.  THERE IS NO TAX
IMPOSED BY THE STATUTE BECAUSE THERE IS NO TRANSFER ANY MORE THAN THERE
WOULD BE IN THE CASE OF A SIMILAR LIFE ESTATE GIVEN A BY HIS
GRANDMOTHER.  (THIS IS MAY V. HEINER, 281 U.S. 238.)  IF, ON THE OTHER
HAND, A CREATES AN ESTATE FOR YEARS OR FOR LIFE IN B, RETAINING THE
REMAINING BENEFICIAL INTEREST IN THE PROPERTY FOR HIMSELF, AND, WHETHER
BY THE TERMS OF THE GRANT, OR BY THE TERMS OF A'S WILL, OR UNDER THE
INTESTATE LAW, THAT REMAINDER PASSES TO SOMEONE ELSE AT HIS DEATH, SUCH
PASSAGE RENDERS THE TRANSFER TAXABLE.  (THIS IS KLEIN V. UNITED STATES,
SUPRA.)  IF WHAT A DOES IS TO TRANSFER HIS PROPERTY IRREVOCABLY, WITH
PROVISION THAT IT SHALL BE ENJOYED SUCCESSIVELY BY VARIOUS PERSONS FOR
LIFE AND THEN GO ABSOLUTELY TO A NAMED PERSON, BUT THAT IF HE, A, SHALL
OUTLIVE THAT PERSON, THE PROPERTY SHALL COME BACK TO HIM, AND A DIES IN
THE LIFETIME OF THE PERSON IN QUESTION, A HAS MERELY LOST THE CHANCE
THAT THE BENEFICIAL OWNERSHIP OF THE PROPERTY MAY REVERT TO HIM.  THAT
CHANCE CANNOT PASS UNDER HIS WILL OR UNDER THE INTESTATE LAWS.  AS
THERE IS NO TRANSFER WHICH CAN BECOME EFFECTIVE AT HIS DEATH BY THE
SHIFTING OF ANY INTEREST FROM HIM, NO TAX IS IMPOSED.  (THIS IS
MCCORMICK V. BURNET, SUPRA, AND HELVERING V. ST. LOUIS UNION TRUST
COMPANY, SUPRA.) 

2.  THESE GOVERNING PRINCIPLES WERE INDICATED AS EARLY AS 1927  FN4
AND WERE THEREAFTER DEVELOPED, IN APPLICATION TO SPECIFIC CASES, IN A
CONSISTENT LINE OF AUTHORITIES. 

IN MAY V. HEINER, SUPRA, IT WAS HELD THAT A TRANSFER IN TRUST UNDER
WHICH THE INCOME WAS PAYABLE TO THE TRANSFEROR'S HUSBAND FOR HIS LIFE
AND, AFTER HIS DEATH, TO THE TRANSFEROR DURING HER LIFE, WITH REMAINDER
TO HER CHILDREN, WAS NOT SUBJECT TO TAX AS A TRANSFER INTENDED TO TAKE
EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER DEATH.  THIS COURT SAID
(P. 243): 

"...  AT THE DEATH OF MRS. MAY NO INTEREST IN THE PROPERTY HELD UNDER
THE TRUST DEED PASSED FROM HER TO THE LIVING; TITLE THERETO HAD BEEN
DEFINITELY FIXED BY THE TRUST DEED.  THE INTEREST THEREIN WHICH SHE
POSSESSED IMMEDIATELY PRIOR TO HER DEATH WAS OBLITERATED BY THAT
EVENT." 

IT WILL BE NOTED THAT THIS IS THE EQUIVALENT OF THE TREASURY'S
STATEMENT, SUPRA, THAT SUCH AN INTEREST LAPSES AT DEATH. 

THAT DECISION IS INDISTINGUISHABLE IN PRINCIPLE FROM THE ST. LOUIS
UNION TRUST COMPANY CASES AND THE INSTANT CASES; AND WHAT WAS THERE
SAID SERVES TO DISTINGUISH THE KLEIN CASE. 

MCCORMICK V. BURNET FOLLOWED MAY V. HEINER.  THE COURT THERE HELD THAT
NEITHER A RESERVATION BY THE GRANTOR OF A LIFE ESTATE WITH REMAINDERS
OVER, NOR A PROVISION FOR A REVERTER IN CASE ALL THE BENEFICIARIES
SHOULD DIE IN THE LIFETIME OF THE GRANTOR, MADE THE GIFTS TRANSFERS
INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER THE
GRANTOR'S DEATH.  IN THE CIRCUIT COURT OF APPEALS THE COMMISSIONER
URGED THAT THE PROVISION FOR PAYMENT OF THE TRUST ESTATE TO THE SETTLOR
IN CASE SHE SURVIVED ALL THE BENEFICIARIES RENDERED THE TRANSFER
TAXABLE.  THAT COURT DEALT AT LENGTH WITH THE POINT AND SUSTAINED HIS
VIEW.  (43 F.2D 277, 279.)  THE COMMISSIONER MADE THE SAME CONTENTION
IN THIS COURT, BUT IT WAS OVERRULED UPON THE AUTHORITY OF MAY V.
HEINER. 

THEN CAME THE TWO ST. LOUIS UNION TRUST COMPANY CASES, DECIDED UPON
THE AUTHORITY OF MAY V. HEINER AND MCCORMICK V. BURNET.  FINALLY, THE
MCCORMICK CASE WAS FOLLOWED IN BINGHAM V. UNITED STATES, 296 U.S. 211. 

SINCE THE OPINION OF THE COURT APPEARS TO TREAT THE ST. LOUIS CASES
AS THE ORIGIN OF THE PRINCIPLE THERE ANNOUNCED, IT IS IMPORTANT TO
EMPHASIZE THE FACT THAT THE RULE HAD BEEN SETTLED BY THIS COURT AS
EARLY AS 1930; AND TO NOTE OTHER DECISIONS RENDERED PRIOR TO THE ST.
LOUIS CASES.  IN SEVEN, INTERVENING BETWEEN MAY V. HEINER AND THE ST.
LOUIS CASES, THE BOARD OF TAX APPEALS REACHED THE SAME CONCLUSION AS
THAT ANNOUNCED IN THE ST. LOUIS CASES.  FN5  THE BOARD'S ACTION WAS
AFFIRMED IN FOUR OF THEM.  FN6  FOUR OTHER DECISIONS BY CIRCUIT COURTS
OF APPEALS WERE TO THE SAME EFFECT.  FN7  IN PRACTICALLY ALL, RELIANCE
WAS PLACED UPON SHUKERT V. ALLEN, REINECKE V. NORTHERN TRUST COMPANY,
MAY V. HEINER, AND MCCORMICK V. BURNET, OR SOME OF THEM.  THUS, WHEN
THE QUESTION CAME BEFORE THIS COURT AGAIN IN THE ST. LOUIS CASES, THERE
WAS A SUBSTANTIAL BODY OF AUTHORITY FOLLOWING AND APPLYING THE HEINER
AND MCCORMICK CASES. 

SINCE THE ST. LOUIS CASES WERE DECIDED, THE PRINCIPLE ON WHICH THEY
WENT HAS BEEN REPEATEDLY APPLIED BY THE BOARD OF TAX APPEALS AND THE
COURTS.  THE BOARD HAS FOLLOWED THE CASES IN NO LESS THAN SEVENTEEN
INSTANCES.  FN8 

THE RECORD IS THE SAME IN THE COURTS.  THE ST. LOUIS CASES HAVE BEEN
FOLLOWED IN FOURTEEN CASES.  FN9  IN SOME OF THESE THE GOVERNMENT HAS
SOUGHT REVIEW IN THIS COURT BUT IN NONE, EXCEPT THOSE NOW PRESENTED,
HAS IT ASKED THE COURT TO OVERRULE THOSE DECISIONS. 

IF THERE EVER WAS AN INSTANCE IN WHICH THE DOCTRINE OF STARE DECISIS
SHOULD GOVERN, THIS IS IT. ASIDE FROM THE OBVIOUS HARDSHIP INVOLVED IN
TREATING THE TAXPAYERS IN THE PRESENT CASES DIFFERENTLY FROM MANY
OTHERS WHOSE CASES HAVE BEEN DECIDED OR CLOSED IN ACCORDANCE WITH THE
SETTLED RULE, THERE ARE THE WEIGHTIER CONSIDERATIONS THAT THE JUDGMENTS
NOW RENDERED DISAPPOINT THE JUST EXPECTATIONS OF THOSE WHO HAVE ACTED
IN RELIANCE UPON THE UNIFORM CONSTRUCTION OF THE STATUTE BY THIS AND
ALL OTHER FEDERAL TRIBUNALS; AND THAT, TO UPSET THESE PRECEDENTS NOW,
MUST NECESSARILY SHAKE THE CONFIDENCE OF THE BAR AND THE PUBLIC IN THE
STABILITY OF THE RULINGS OF THE COURTS AND MAKE IT IMPOSSIBLE FOR
INFERIOR TRIBUNALS TO ADJUDICATE CONTROVERSIES IN RELIANCE ON THE
DECISIONS OF THIS COURT.  TO NULLIFY MORE THAN FIFTY DECISIONS, FIVE OF
THEM BY THIS COURT, SOME OF WHICH HAVE STOOD FOR A DECADE, IN ORDER TO
CHANGE A MERE RULE OF STATUTORY CONSTRUCTION, SEEMS TO ME AN ALTOGETHER
UNWISE AND UNJUSTIFIED EXERTION OF POWER.  AS I SHALL POINT OUT, THERE
IS NO NECESSITY FOR SUCH ACTION BECAUSE IT HAS BEEN, AND STILL IS OPEN
TO CONGRESS TO CHANGE THE RULE BY AMENDMENT OF THE STATUTE, IF IT DEEMS
SUCH ACTION NECESSARY IN THE PUBLIC INTEREST.    3.  SECTION 301 OF THE
REVENUE ACT OF 1926 IMPOSES A TAX UPON THE VALUE OF THE NET ESTATE OF A
DECEDENT.  SECTION 302 PROVIDES THE METHOD FOR DETERMINING THE VALUE OF
THE GROSS ESTATE.  SUBSECTIONS (C)(D)(E)(F) AND (G) REQUIRE INCLUSION
IN THE GROSS ESTATE OF INTERESTS WHICH OTHERWISE MIGHT BE HELD NOT TO
FORM A PART OF THE DECEDENT'S ESTATE OR NOT TO PASS FROM HIM TO OTHERS
AT HIS DEATH.  THESE SUBSECTIONS SWEEP SUCH INTERESTS INTO THE GROSS
ESTATE IN ORDER TO FORESTALL TAX AVOIDANCE.  SECTION 302(C) WAS THE
SUCCESSOR OF ANALOGOUS SECTIONS IN EARLIER ACTS AND THE PREDECESSOR OF
SIMILAR SECTIONS IN LATER ACTS.  FN10  THE SUBSECTION HAS BEEN AMENDED
IN SUCCESSIVE REVENUE ACTS.  AS A RESULT OF THE TREASURY'S EXPERIENCE
IN THE ENFORCEMENT OF THE LAW, CONGRESS HAS FROM TIME TO TIME THOUGHT
IT NECESSARY TO EXTEND THE SCOPE OF THE SUBSECTION IN THE INTEREST OF
MORE EFFICIENT ADMINISTRATION.  WITHIN CONSTITUTIONAL LIMITS SUCH
EXTENSION IS A MATTER OF LEGISLATIVE POLICY FOR CONGRESS ALONE.  FN11 

IT IS FAMILIAR PRACTICE FOR CONGRESS TO AMEND A STATUTE TO OBVIATE A
CONSTRUCTION GIVEN IT BY THE COURTS.  THE LEGISLATIVE HISTORY OF SEC.
302(C) DEMONSTRATES THAT CONGRESS HAS ELECTED NOT TO MAKE SUCH AN
AMENDMENT TO MEET THE CONSTRUCTION PLACED UPON IT BY THIS COURT IN THE
ST. LOUIS CASES. 

MAY V. HEINER WAS DECIDED IN 1930.  THE TREASURY WAS DISSATISFIED
WITH THE DECISION AND IN THREE LATER CASES ATTACKED THE RULING, AMONGST
THEM MCCORMICK V. BURNET.  THE COURT ANNOUNCED ITS JUDGMENTS IN THESE
CASES ON MARCH 2, 1931, REAFFIRMING MAY V. HEINER.  ON THE FOLLOWING
DAY CONGRESS ADOPTED A JOINT RESOLUTION AMENDING SEC. 302(C) TO TAX A
TRANSFER WITH RESERVATION OF A LIFE ESTATE TO THE GRANTOR, BUT, IN SO
DOING, IT OMITTED TO DEAL WITH A CONTINGENT INTEREST RESERVED TO THE
GRANTOR OR THE POSSIBILITY OF REVERTER REMAINING IN HIM, INVOLVED IN
BOTH HEINER AND MCCORMICK.  SEE HASSETT V. WELCH, 303 U.S. 303, 308-9. 
THE OMISSION IS SIGNIFICANT. 

IT MAY BE ARGUED THAT IN THE HASTE OF PREPARING AND PASSING THE
AMENDMENT THE POINT WAS OVERLOOKED.  BUT THE JOINT RESOLUTION WAS
REENACTED BY SEC. 803 OF THE REVENUE ACT OF 1932,  FN12 WITHOUT ANY
ALTERATION TO COVER THE POINT.  THE REVENUE ACT OF 1934  FN13  AMENDED
SEC. 302(D) OF THE REVENUE ACT OF 1926 BUT DID NOT CHANGE SEC. 302(C)
AS IT THEN STOOD. 

THE DAY THE ST. LOUIS CASES WERE DECIDED, THIS COURT ANNOUNCED ITS
OPINION IN WHITE V. POOR, 296 U.S. 98, CONSTRUING SEC. 302(D) OF THE
ACT OF 1926.  IN ORDER TO MAKE THE SECTION APPLY TO SUCH A SITUATION AS
WAS DISCLOSED IN THAT CASE  FN14  THE CONGRESS, ON JUNE 22, 1936, BY
THE ACT OF 1936, FN15  AMENDED IT TO PRECLUDE THE CONSTRUCTION THE
COURT HAD GIVEN IT.  AGAIN CONGRESS LET SEC. 302(C) STAND AS BEFORE AND
AS CONSTRUED IN THE ST. LOUIS CASES.  THREE REVENUE ACTS HAVE SINCE
BEEN ADOPTED,  FN16  IN NONE OF WHICH HAS THE WORDING OF SEC. 302(C)
BEEN ALTERED.  IF THERE IS ANY LIFE IN THE DOCTRINE OFTEN ANNOUNCED
THAT REENACTMENT OF A STATUTE AS UNIFORMLY CONSTRUED BY THE COURTS IS
AN ADOPTION BY CONGRESS OF THE CONSTRUCTION GIVEN IT, THIS LEGISLATIVE
HISTORY OUGHT TO BE CONCLUSIVE THAT THE STATUTE, AS IT NOW STANDS,
MEANS WHAT THIS COURT HAS SAID IT MEANS. 

LITTLE WEIGHT CAN BE GIVEN TO THE ARGUMENT OF THE GOVERNMENT THAT THE
TREASURY HAS NOT APPLIED TO CONGRESS FOR ALTERATION OF THE SECTION
BECAUSE OF THE DIFFICULTY OF WORDING A SATISFACTORY AMENDMENT.  A
MOMENT'S REFLECTION WILL SHOW THAT IT WOULD BE EASY TO PHRASE SUCH AN
AMENDMENT.  WHATEVER THE REASON FOR THE FAILURE TO AMEND SEC. 302(C),
WHETHER HESITANCY ON THE PART OF THE TREASURY TO RECOMMEND SUCH ACTION,
OR THE SATISFACTION OF CONGRESS WITH THE CONSTRUCTION PUT UPON THE
CONSTRUCTION PLAIN FOR ALL TO READ. 

4.  AS SHOWN BY THE MATTER ABOVE QUOTED FROM THE TREASURY REGULATIONS
AFFECTING THE ESTATE TAX, FN17  A CONTINGENT INTEREST IS NOT TO BE
INCLUDED IN THE TAXABLE ESTATE.  IN THE LIGHT OF THIS CONSTRUCTION,
ESTATE TAX PROVISIONS WERE REENACTED OR AMENDED IN 1921, 1924, 1926,
1928, 1931, 1932, 1934, 1935, 1936 AND 1937. 

AT THE BAR, COUNSEL FOR THE GOVERNMENT STATED THAT IT HAD ALWAYS BEEN
THE VIEW OF THE TREASURY THAT THE ARTICLE IN QUESTION APPLIED ONLY TO
SEC. 302(A) AND HAD NO APPLICATION TO SEC. 302(C).  BUT WE ARE NOT
CONCERNED WITH WHAT THE TREASURY THOUGHT ABOUT THE MATTER.  THE
REGULATIONS WERE ISSUED TO GUIDE TAXPAYERS IN COMPLYING WITH THE ACT. 
TO CONTRADICT EACH OTHER, BUT THE LATTER WAS TO SUPPLEMENT THE FORMER. 
THE GROSS ESTATE WAS TO BE COMPUTED ACCORDING TO THE SECTION AS A
WHOLE.  IT IS HARD TO UNDERSTAND HOW THE TAXPAYER WAS EXPECTED TO
DISCRIMINATE BETWEEN A CONTINGENT INTEREST OF A DECEDENT UNDER THE WILL
OF HIS GRANDMOTHER AND A SIMILAR INTEREST UNDER AN ABSOLUTE DEED
EXECUTED BY HIM INTER VIVOS.  IF THE ONE DID NOT PASS FROM THE DECEDENT
AT DEATH NEITHER DID THE OTHER. 

AFTER THE DECISIONS IN THE ST. LOUIS CASES, THE TREASURY RENDERED ITS
REGULATIONS EVEN MORE EXPLICIT.  IN REGULATIONS 80(REVISED),
PROMULGATED OCTOBER 26, 1937, A NEW ARTICLE 17 WAS INSERTED WHICH IS: 

"THE STATUTORY PHRASE, 'A TRANSFER  ...  INTENDED TO TAKE EFFECT IN
POSSESSION OR ENJOYMENT AT OR AFTER HIS DEATH,' INCLUDES A TRANSFER BY
THE DECEDENT  ...  WHEREBY AND TO THE EXTENT THAT THE BENEFICIAL TITLE
TO THE PROPERTY  ...  OR THE LEGAL TITLE THERETO  ...  REMAINED IN THE
DECEDENT AT THE TIME OF HIS DEATH AND THE PASSING THEREOF WAS SUBJECT
TO THE CONDITION PRECEDENT OF HIS DEATH.  ... 

"ON THE OTHER HAND, IF, AS A RESULT OF THE TRANSFER, THERE REMAINED
IN THE DECEDENT AT THE TIME OF HIS DEATH NO TITLE OR INTEREST IN THE
TRANSFERRED PROPERTY, THEN NO PART OF THE PROPERTY IS TO BE INCLUDED IN
THE GROSS ESTATE MERELY BY REASON OF A PROVISION IN THE INSTRUMENT OF
TRANSFER TO THE EFFECT THAT THE PROPERTY WAS TO REVERT TO THE DECEDENT
UPON THE PREDECEASE OF SOME OTHER PERSON OR PERSONS OR THE HAPPENING OF
SOME OTHER EVENT." 

IF THERETOFORE DOUBT COULD HAVE BEEN ENTERTAINED, IT THEN MUST HAVE
VANISHED.  AND WITH THIS REGULATION IN FORCE, CONGRESS REENACTED SEC.
302(C) AS SO INTERPRETED. 

WHAT, THEN, IS TO BE SAID OF THE PRINCIPLE THAT REENACTMENT OF A
STATUTE WHICH THE TREASURY, BY ITS REGULATIONS, HAS INTERPRETED IN A
GIVEN SENSE IS AN EMBODIMENT OF THE INTERPRETATION IN THE LAW AS
REENACTED?  SURELY THE PRINCIPLE CANNOT BE AVOIDED, AS THE GOVERNMENT
ARGUES, BECAUSE THE TREASURY FELT BOUND SO TO INTERPRET SEC. 302(C) BY
REASON OF THIS COURT'S DECISIONS.  THAT FACT SHOULD MAKE APPLICATION OF
THE PRINCIPLE THE MORE URGENT. 

FN1  SECS. 33-303, 44 STAT. 69-72. 

FN2  REGULATIONS 37, ART. 12(1917). 

FN3  REGULATIONS 37, ART. 12; REGULATIONS 63, ART. 11; REGULATIONS
68, ART. 11; REGULATIONS 80, ART. 11. 

FN4  SHUKERT V. ALLEN, 273 U.S. 545. 

FN5  WHEELER V. COMMISSIONER, 20 B.T.A. 695; DUKE V. COMMISSIONER, 23
B.T.A. 1104; PEABODY V. COMMISSIONER, 24 B.T.A. 787; DUNHAM V.
COMMISSIONER, 26 B.T.A. 286; TAYLOR V. COMMISSIONER, 27 B.T.A. 220;
WALLACE V. COMMISSIONER, 27 B.T.A. 902; BONNEY V. COMMISSIONER, 29
B.T.A. 45. 

FN6  COMMISSIONER V. DUKE, 62 F.2D 1057(AFFIRMED BY AN EQUALLY
DIVIDED COURT, 290 U.S. 591); COMMISSIONER V. WALLACE, 71 F.2D 1002;
COMMISSIONER V. DUNHAM, 73 F.2D 752; COMMISSIONER V. BONNEY, 75 F.2D
1008. 

FN7  COMMISSIONER V. AUSTIN, 73 F.2D 758; TAIT V. SAFE DEPOSIT &
TRUST CO., 74 F.2D 851; TAIT V. SAFE DEPOSIT & TRUST CO., 78 F.2D 534;
HELVERING V. HELMHOLZ, 64 APP. D.C. 114; 75 F.2D 245.  I HAVE BEEN ABLE
TO FIND ONLY ONE CASE DECIDED CONTRA:  COMMISSIONER V. SCHWARZ, 74 F.2D
712. 

FN8  TAFT V. COMMISSIONER, 33 B.T.A. 671; GUARANTY TRUST CO. V.
COMMISSIONER, 33 B.T.A. 1225; KNEELAND V. COMMISSIONER, 34 B.T.A. 816;
KIENBUSCH V. COMMISSIONER, 34 B.T.A. 1248; SCHNEIDER V. COMMISSIONER,
35 B.T.A. 183; VAN SICKLEN V. COMMISSIONER, 35 B.T.A. 306; PATTERSON V.
COMMISSIONER, 36 B.T.A. 407; RUSHMORE V. COMMISSIONER, 36 B.T.A. 480;
BRYANT V. COMMISSIONER, 36 B.T.A. 669; WETHERILL V. COMMISSIONER, 36
B.T.A. 1259; MITCHELL V. COMMISSIONER, 37 B.T.A. 1; STONE V.
COMMISSIONER, 38 B.T.A. 51; THE GEORGE D. HARTER BANK V. COMMISSIONER,
38 B.T.A. 387; WHITE V. COMMISSIONER, 38 B.T.A. 593; DONNELLY V.
COMMISSIONER, 38 B.T.A. 1234; PYEATT V. COMMISSIONER, 39 B.T.A. 774;
DRAVO V. COMMISSIONER, 40 B.T.A. 309. 

FN9  OLD COLONY TRUST CO. V. UNITED STATES, 15 F.SUPP.  417; MYERS V.
MAGRUDER, 15 F.SUPP.  488; CHASE NATIONAL BANK V. UNITED STATES, 28
F.SUPP.  947; COMMISSIONER V. BROOKS, 87 F.2D 1000; BULLARD V.
COMMISSIONER, 90 F.2D 144; WELCH V. HASSETT, 90 F.2D 833; UNITED STATES
V. NICHOLS, 92 F.2D 704; MACKAY V. COMMISSIONER, 94 F.2D 558;
COMMISSIONER V. GROSSE, 100 F.2D 37; COMMISSIONER V. HALLOCK, 102 F.2D
1; COMMISSIONER V. KAPLAN, 102 F.2D 329; ROTHENSIES V. CASSELL, 103
F.2D 834; CORNING V. COMMISSIONER, 104 F.2D 329; RHEINSTROM V.
COMMISSIONER, 105 F.2D 642. 

FN10  REVENUE ACT OF 1916, SEC. 202(B), 39 STAT. 756, 777; REVENUE
ACT OF 1918, SEC. 402(C), 40 STAT 1057, 1097; REVENUE ACT OF 1924, SEC.
302(C), 43 STAT. 253, 304; REVENUE ACT OF 1932, SEC. 803(A), 47 STAT.
169, 279; INTERNAL REVENUE CODE OF 1939, SEC. 811(C), 53 STAT., PART 1,
1, 121. 

FN11  HELVERING V. CITY BANK FARMERS TRUST CO., 296 U.S. 85. 

FN12  47 STAT. 169, 279. 

FN13  48 STAT. 680, 752. 

FN14  HOUSE REPORT ON H.R. 12793. 

FN15  49 STAT. 1648, 1744. 

FN16  REVENUE ACT OF 1937, 50 STAT. 813; REVENUE ACT OF 1938, 52
STAT. 447; INTERNAL REVENUE CODE, 53 STAT., PART 1, P. 1. 

FN17  SEE NOTE 3, SUPRA. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS OPINION. 
..END :












FEDERAL COMM'N V. BROADCASTING CO., 309 U.S. 134 


NO. 265.  ARGUED JANUARY 11, 1940.  - DECIDED JANUARY 29, 1940.  - 70
APP. D.C. 157 - 105 F.2D 36, REVERSED. 


1.  A LOWER COURT'S INTERPRETATION OF ITS OWN MANDATE DOES NOT BIND
THIS COURT.  P. 141. 

2.  THE OPINION DISCUSSES THE DIFFERENCES OF ORIGIN AND FUNCTION
BETWEEN THE JUDICIAL AND THE ADMINISTRATIVE PROCESSES, AND THE RELATION
OF THE ONE TO THE OTHER IN MATTERS OF SUBSTANCE AND PROCEDURE WHERE
ADMINISTRATIVE RULINGS ARE SUBJECT TO JUDICIAL REVIEW ON ERRORS OF
LAW.  P. 141. 

3.  UNDER THE FEDERAL COMMUNICATIONS ACT OF 1934, THE COMMUNICATIONS
COMMISSION, IN PASSING UPON AN APPLICATION FOR A PERMIT TO CONSTRUCT A
BROADCASTING STATION, MUST JUDGE BY THE STANDARD OF PUBLIC CONVENIENCE,
INTEREST, AND NECESSITY.  PP. 137, 145. 

4.  THE ACT EMPOWERS THE COMMISSION TO ADOPT RULES OF PROCEDURE
APPLICABLE IN ASCERTAINING WHETHER THE GRANTING OF AN APPLICATION FOR A
PERMIT TO ERECT A BROADCASTING STATION WOULD BE IN THE PUBLIC
INTEREST.  P. 138. 

5.  UNDER THIS ACT, UPON REVIEW BY THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA OF A DECISION OF THE COMMISSION DENYING AN
APPLICATION FOR SUCH A PERMIT, THE COURT HAS AUTHORITY TO CORRECT
ERRORS OF LAW AND UPON REMAND THE COMMISSION IS BOUND TO ACCEPT SUCH
CORRECTION.  P. 145. 

6.  BUT WHERE THE COMMISSION DENIED AN APPLICATION FOR SUCH A PERMIT
AND UPON APPEAL TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
THE RULING WAS REVERSED BECAUSE OF ERROR OF LAW AND THE CASE SENT BACK
FOR FURTHER PROCEEDINGS, THE COMMISSION WAS FREE TO RECONSIDER THE
APPLICATION TOGETHER WITH OTHER APPLICATIONS, FILED SUBSEQUENTLY, TO
DETERMINE WHICH, ON A COMPARATIVE BASIS, WOULD BEST SERVE THE PUBLIC
INTEREST; AND THE COURT OF APPEALS WAS WITHOUT AUTHORITY BY ITS MANDATE
AND BY WRIT OF MANDAMUS TO FORBID THIS AND TO REQUIRE A REHEARING OF
THE FIRST APPLICATION ON THE RECORD AS ORIGINALLY MADE.  P. 145. 

FEDERAL COMMUNICATIONS COMMISSION V. POTTSVILLE BROADCASTING CO. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 308 U.S. 535, TO REVIEW AN ORDER WHICH GRANTED A WRIT OF
MANDAMUS REQUIRING THE ABOVE-NAMED COMMISSION AND ITS MEMBERS (A) TO
SET ASIDE ITS ORDER DENYING AN APPLICATION OF THE PRESENT RESPONDENT
AND ASSIGNING IT FOR REHEARING, WITH OTHER APPLICATIONS FOR THE SAME
BROADCASTING FACILITIES; AND (B) TO HEAR AND RECONSIDER THE
RESPONDENT'S APPLICATION ON THE BASIS OF THE RECORD AS ORIGINALLY MADE
UP WHEN ITS APPLICATION WAS FIRST DECIDED ADVERSELY BY THE COMMISSION
AND BROUGHT BEFORE THAT COURT ON APPEAL.  SEE 98 F.2D 288. 

THE PROCEDURAL FRAMEWORK WITHIN WHICH APPLICATIONS FOR CONSTRUCTION
PERMITS ARE CONSIDERED IS SUCH THAT, IF A PERMIT SHOULD BE ISSUED TO
THE RESPONDENT, THE FACILITIES COULD NOT LATER BE TAKEN AWAY BY THE
COMMISSION AND GIVEN TO ANOTHER APPLICANT WITHOUT A HEARING HELD FOR
THE PURPOSE OF DETERMINING WHETHER SUCH ACTION WOULD BE PROPER. 
RICHMOND DEVELOPMENT CORP. V. COMMISSION, 35 F.2D 883. 

THE APPLICANT WHO, UNDER THE COMMISSION'S RULES, BECOMES ENTITLED TO
BE HEARD FIRST AND WHO PROCEEDS TO MEET THE STATUTORY REQUIREMENTS IS
ENTITLED TO A GRANT WITHOUT WAITING FOR LATER APPLICANTS TO BE HEARD
AND CONSIDERED.  FEDERAL RADIO COMM'N V. NELSON BROS. BOND & MORTGAGE
CO., 289 U.S. 266, 285; COURIER POST PUBLISHING CO. V. COMMISSION, 104
F.2D 213, 218; HEITMEYER V. COMMISSION, 95 F.2D 91, 100; RIO GRANDE
IRRIGATION & C. CO. V. GILDERSLEEVE, 174 U.S. 603, 609; WEIL V. NEARY,
278 U.S. 161, 169; COLONIAL BROADCASTERS, INC. V. FEDERAL
COMMUNICATIONS COMM'N, 105 F.2D 781, 783; FLORIDA V. UNITED STATES, 282
U.S. 194, 215; BEAUMONT, S.L. & W.R. CO. V. UNITED STATES, 282 U.S. 74;
COMMISSION RULE 106.4. 

THE COMMISSION MAY NOT OUST THE JURISDICTION OF THE COURT HAVING
STATUTORY POWER OF REVIEW BY SETTING UP, SUBSEQUENTLY TO THE DECISION
OF THE COURT ON QUESTIONS OF LAW, A NEW PROCEDURE INVOLVING A NEW
RECORD, OTHER ISSUES AND OTHER PARTIES.  FORD MOTOR CO. V. LABOR BOARD,
305 U.S. 364, 368, 372; IN RE SANFORD FORK & TOOL CO., 160 U.S. 247;
DELAWARE, L. & W.R. CO. V. RELLSTAB, 276 U.S. 1; BALTIMORE & OHIO R.
CO. V. UNITED STATES, 279 U.S. 781; SIBBALD V. UNITED STATES, 12 PET.
488, 492; BARBER ASPHALT PAVING CO. V. MORRIS, 132 F. 945, 954;
ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 136; IN RE
POTTS, 166 U.S. 263, 267; AMERICAN TELEPHONE & TEL. CO. V. UNITED
STATES, 299 U.S. 232; COMMUNICATIONS ACT, 1934. 

THE COURT OF APPEALS HAS THE SAME POWER TO ISSUE MANDAMUS TO PROTECT
ITS JURISDICTION IN THIS CASE AS IT DOES IN CASES ON APPEAL FROM THE
DISTRICT COURT. 

THE RESPONDENT EXHAUSTED ITS ADMINISTRATIVE REMEDY BEFORE RESORTING
TO THE COURT BELOW, AND IT HAS NO PLAIN, SPEEDY AND ADEQUATE REMEDY AT
LAW. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE COURT BELOW ISSUED A WRIT OF MANDAMUS AGAINST THE FEDERAL
COMMUNICATIONS COMMISSION, AND, BECAUSE IMPORTANT ISSUES OF
ADMINISTRATIVE LAW ARE INVOLVED, WE BROUGHT THE CASE HERE.  308 U.S.
535.  WE ARE CALLED UPON TO ASCERTAIN AND ENFORCE THE SPHERES OF
AUTHORITY WHICH CONGRESS HAS GIVEN TO THE COMMISSION AND THE COURTS,
RESPECTIVELY, THROUGH ITS SCHEME FOR THE REGULATION OF RADIO
BROADCASTING IN THE COMMUNICATIONS ACT OF 1934, C. 652, 48 STAT. 1064,
AS AMENDED BY THE ACT OF MAY 20, 1937, C. 229, 50 STAT. 189; 47 U.S.C.
SEC. 151. 

ADEQUATE APPRECIATION OF THE FACTS PRESENTLY TO BE SUMMARIZED
REQUIRES THAT THEY BE SET IN THEIR LEGISLATIVE FRAMEWORK.  IN ITS
ESSENTIALS THE COMMUNICATIONS ACT OF 1934 DERIVES FROM THE FEDERAL
RADIO ACT OF 1927, C. 169, 44 STAT. 1162, AS AMENDED, 46 STAT. 844.  BY
THIS ACT CONGRESS, IN ORDER TO PROTECT THE NATIONAL INTEREST INVOLVED
IN THE NEW AND FAR-REACHING SCIENCE OF BROADCASTING, FORMULATED A
UNIFIED AND COMPREHENSIVE REGULATORY SYSTEM FOR THE INDUSTRY.  FN1  THE
COMMON FACTORS IN THE ADMINISTRATION OF THE VARIOUS STATUTES BY WHICH
CONGRESS HAD SUPERVISED THE DIFFERENT MODES OF COMMUNICATION LED TO THE
CREATION, IN THE ACT OF 1934, OF THE COMMUNICATIONS COMMISSION.  BUT
THE OBJECTIVES OF THE LEGISLATION HAVE REMAINED SUBSTANTIALLY UNALTERED
SINCE 1927. 

CONGRESS MOVED UNDER THE SPUR OF A WIDESPREAD FEAR THAT IN THE
ABSENCE OF GOVERNMENTAL CONTROL THE PUBLIC INTEREST MIGHT BE
SUBORDINATED TO MONOPOLISTIC DOMINATION IN THE BROADCASTING FIELD.  TO
AVOID THIS CONGRESS PROVIDED FOR A SYSTEM OF PERMITS AND LICENSES. 
LICENSES WERE NOT TO BE GRANTED FOR LONGER THAN THREE YEARS. 
COMMUNICATIONS ACT OF 1934, TITLE III, SEC. 307(D).  NO LICENSE WAS TO
BE "CONSTRUED TO CREATE ANY RIGHT, BEYOND THE TERMS, CONDITIONS, AND
PERIODS OF THE LICENSE."  IBID., SEC. 301.  IN GRANTING OR WITHHOLDING
PERMITS FOR THE CONSTRUCTION OF STATIONS, AND IN GRANTING, DENYING,
MODIFYING OR REVOKING LICENSES FOR THE OPERATION OF STATIONS, "PUBLIC
CONVENIENCE, INTEREST, OR NECESSITY" WAS THE TOUCHSTONE FOR THE
EXERCISE OF THE COMMISSION'S AUTHORITY.  WHILE THIS CRITERION IS AS
CONCRETE AS THE COMPLICATED FACTORS FOR JUDGMENT IN SUCH A FIELD OF
DELEGATED AUTHORITY PERMIT, IT SERVES AS A SUPPLE INSTRUMENT FOR THE
EXERCISE OF DISCRETION BY THE EXPERT BODY WHICH CONGRESS HAS CHARGED TO
CARRY OUT ITS LEGISLATIVE POLICY.  NECESSARILY, THEREFORE, THE
SUBORDINATE QUESTIONS OF PROCEDURE IN ASCERTAINING THE PUBLIC INTEREST,
WHEN THE COMMISSION'S LICENSING AUTHORITY IS INVOKED - THE SCOPE OF THE
INQUIRY, WHETHER APPLICATIONS SHOULD BE HEARD CONTEMPORANEOUSLY OR
SUCCESSIVELY, WHETHER PARTIES SHOULD BE ALLOWED TO INTERVENE IN ONE
ANOTHER'S PROCEEDINGS, AND SIMILAR QUESTIONS - WERE EXPLICITLY AND BY
IMPLICATION LEFT TO THE COMMISSION'S OWN DEVISING, SO LONG, OF COURSE,
AS IT OBSERVES THE BASIC REQUIREMENTS DESIGNED FOR THE PROTECTION OF
PRIVATE AS WELL AS PUBLIC INTEREST.  IBID., TITLE I, SEC. 4(J). 
UNDERLYING THE WHOLE LAW IS RECOGNITION OF THE RAPIDLY FLUCTUATING
FACTORS CHARACTERISTIC OF THE EVOLUTION OF BROADCASTING AND OF THE
CORRESPONDING REQUIREMENT THAT THE ADMINISTRATIVE PROCESS POSSESS
SUFFICIENT FLEXIBILITY TO ADJUST ITSELF TO THESE FACTORS.  THUS, IT IS
HIGHLY SIGNIFICANT THAT ALTHOUGH INVESTMENT IN BROADCASTING STATIONS
MAY BE LARGE, A LICENSE MAY NOT BE ISSUED FOR MORE THAN THREE YEARS;
AND IN DECIDING WHETHER TO RENEW THE LICENSE, JUST AS IN DECIDING
WHETHER TO ISSUE IT IN THE FIRST PLACE, THE COMMISSION MUST JUDGE BY
THE STANDARD OF "PUBLIC CONVENIENCE, INTEREST, OR NECESSITY."  THE
COMMUNICATIONS ACT IS NOT DESIGNED PRIMARILY AS A NEW CODE FOR THE
ADJUSTMENT OF CONFLICTING PRIVATE RIGHTS THROUGH ADJUDICATION.  RATHER
IT EXPRESSES A DESIRE ON THE PART OF CONGRESS TO MAINTAIN, THROUGH
APPROPRIATE ADMINISTRATIVE CONTROL, A GRIP ON THE DYNAMIC ASPECTS OF
RADIO TRANSMISSION.  FN2 

AGAINST THIS BACKGROUND THE FACTS OF THE PRESENT CASE FALL INTO
PROPER PERSPECTIVE.  IN MAY, 1936, THE POTTSVILLE BROADCASTING COMPANY,
RESPONDENT HERE, SOUGHT FROM THE COMMISSION A PERMIT UNDER SEC. 319
IBID., TITLE III, FOR THE CONSTRUCTION OF A BROADCASTING STATION AT
POTTSVILLE, PENNSYLVANIA.  THE COMMISSION DENIED THIS APPLICATION ON
TWO GROUNDS:  (1) THAT THE RESPONDENT WAS FINANCIALLY DISQUALIFIED; AND
(2) THAT THE APPLICANT DID NOT SUFFICIENTLY REPRESENT LOCAL INTERESTS
IN THE COMMUNITY WHICH THE PROPOSED STATION WAS TO SERVE.  FROM THIS
DENIAL OF ITS APPLICATION RESPONDENT APPEALED TO THE COURT BELOW.  THAT
TRIBUNAL WITHHELD JUDGMENT ON THE SECOND GROUND OF THE COMMISSION'S
DECISION, FOR IT DID NOT DEEM THIS TO HAVE CONTROLLED THE COMMISSION'S
JUDGMENT.  BUT, FINDING THE COMMISSION'S CONCLUSION REGARDING THE
RESPONDENT'S LACK OF FINANCIAL QUALIFICATION TO HAVE BEEN BASED ON AN
ERRONEOUS UNDERSTANDING OF PENNSYLVANIA LAW, THE COURT OF APPEALS
REVERSED THE DECISION AND ORDERED THE "CAUSE  ...  REMANDED TO THE  ...
COMMUNICATIONS COMMISSION FOR RECONSIDERATION IN ACCORDANCE WITH THE
VIEWS EXPRESSED."  POTTSVILLE BROADCASTING CO. V. FEDERAL
COMMUNICATIONS COMMISSION, 69 APP. D.C. 7; 98 F.2D 288. 

FOLLOWING THIS REMAND, RESPONDENT PETITIONED THE COMMISSION TO GRANT
ITS ORIGINAL APPLICATION.  INSTEAD OF DOING SO, THE COMMISSION SET FOR
ARGUMENT RESPONDENT'S APPLICATION ALONG WITH TWO RIVAL APPLICATIONS FOR
THE SAME FACILITIES.  THE LATTER APPLICATIONS HAD BEEN FILED
SUBSEQUENTLY TO THAT OF RESPONDENT AND HEARINGS HAD BEEN HELD ON THEM
BY THE COMMISSION IN A CONSOLIDATED PROCEEDING, BUT THEY WERE STILL
UNDISPOSED OF WHEN THE RESPONDENT'S CASE RETURNED TO THE COMMISSION. 
WITH THREE APPLICATIONS FOR THE SAME FACILITIES THUS BEFORE IT, AND THE
FACTS REGARDING EACH HAVING THERETOFORE BEEN EXPLORED BY APPROPRIATE
PROCEDURE, THE COMMISSION DIRECTED THAT ALL THREE BE SET DOWN FOR
ARGUMENT BEFORE IT TO DETERMINE WHICH, "ON A COMPARATIVE BASIS" "IN THE
JUDGMENT OF THE COMMISSION WILL BEST SERVE PUBLIC INTEREST."  AT THIS
STAGE OF THE PROCEEDINGS, RESPONDENTS SOUGHT AND OBTAINED FROM THE
COURT OF APPEALS THE WRIT OF MANDAMUS NOW UNDER REVIEW.  THAT WRIT
COMMANDED THE COMMISSION TO SET ASIDE ITS ORDER DESIGNATING
RESPONDENT'S APPLICATION "FOR HEARING ON A COMPARATIVE BASIS" WITH THE
OTHER TWO, AND "TO HEAR AND RECONSIDER THE APPLICATION" OF THE
POTTSVILLE BROADCASTING COMPANY "ON THE BASIS OF THE RECORD AS
ORIGINALLY MADE AND IN ACCORDANCE WITH THE OPINIONS" OF THE COURT OF
APPEALS IN THE ORIGINAL REVIEW (69 APP. D.C. 7; 98 F.2D 288), AND IN
THE MANDAMUS PROCEEDINGS.  POTTSVILLE BROADCASTING CO. V. FEDERAL
COMMUNICATIONS COMMISSION, 70 APP. D.C. 157; 105 F.2D 36. 

THE COURT OF APPEALS INVOKED AGAINST THE COMMISSION THE FAMILIAR
DOCTRINE THAT A LOWER COURT IS BOUND TO RESPECT THE MANDATE OF AN
APPELLATE TRIBUNAL AND CANNOT RECONSIDER QUESTIONS WHICH THE MANDATE
HAS LAID AT REST.  SEE IN RE SANFORD FORK & TOOL CO., 160 U.S. 247, 255
56.  THAT PROPOSITION IS INDISPUTABLE, BUT IT DOES NOT TELL US WHAT
ISSUES WERE LAID AT REST.  COMPARE SPRAGUE V. TICONIC BANK, 307 U.S.
161.  NOR IS A COURT'S INTERPRETATION OF THE SCOPE OF ITS OWN MANDATE
NECESSARILY CONCLUSIVE.  TO BE SURE THE COURT THAT ISSUES A MANDATE IS
NORMALLY THE BEST JUDGE OF ITS CONTENT, ON THE GENERAL THEORY THAT THE
AUTHOR OF A DOCUMENT IS ORDINARILY THE AUTHORITATIVE INTERPRETER OF ITS
PURPOSES.  BUT IT IS NOT EVEN TRUE THAT A LOWER COURT'S INTERPRETATION
OF ITS MANDATE IS CONTROLLING HERE.  COMPARE UNITED STATES V. MORGAN,
307 U.S. 183. 

THEREFORE, WE WOULD NOT BE FORECLOSED BY THE INTERPRETATION WHICH THE
COURT OF APPEALS GAVE TO ITS MANDATE, EVEN IF IT HAD BEEN DIRECTED TO A
LOWER COURT. 

A MUCH DEEPER ISSUE, HOWEVER, IS HERE INVOLVED.  THIS WAS NOT A
MANDATE FROM COURT TO COURT BUT FROM A COURT TO AN ADMINISTRATIVE
AGENCY.  WHAT IS IN ISSUE IS NOT THE RELATIONSHIP OF FEDERAL COURTS
INTER SE - A RELATIONSHIP DEFINED LARGELY BY THE COURTS THEMSELVES -
BUT THE DUE OBSERVANCE BY COURTS OF THE DISTRIBUTION OF AUTHORITY MADE
BY CONGRESS AS BETWEEN ITS POWER TO REGULATE COMMERCE AND THE REVIEWING
POWER WHICH IT HAS CONFERRED UPON THE COURTS UNDER ARTICLE III OF THE
CONSTITUTION.  A REVIEW BY A FEDERAL COURT OF THE ACTION OF A LOWER
COURT IS ONLY ONE PHASE OF A SINGLE UNIFIED PROCESS.  BUT TO THE EXTENT
THAT A FEDERAL COURT IS AUTHORIZED TO REVIEW AN ADMINISTRATIVE ACT,
THERE IS SUPERIMPOSED UPON THE ENFORCEMENT OF LEGISLATIVE POLICY
THROUGH ADMINISTRATIVE CONTROL A DIFFERENT PROCESS FROM THAT OUT OF
WHICH THE ADMINISTRATIVE ACTION UNDER REVIEW ENSUED.  THE TECHNICAL
RULES DERIVED FROM THE INTERRELATIONSHIP OF JUDICIAL TRIBUNALS FORMING
A HIERARCHICAL SYSTEM ARE TAKEN OUT OF THEIR ENVIRONMENT WHEN
MECHANICALLY APPLIED TO DETERMINE THE EXTENT TO WHICH CONGRESSIONAL
POWER, EXERCISED THROUGH A DELEGATED AGENCY, CAN BE CONTROLLED WITHIN
THE LIMITED SCOPE OF "JUDICIAL POWER" CONFERRED BY CONGRESS UNDER THE
CONSTITUTION. 

COURTS, LIKE OTHER ORGANISMS, REPRESENT AN INTERPLAY OF FORM AND
FUNCTION.  THE HISTORY OF ANGLO-AMERICAN COURTS AND THE MORE OR LESS
NARROWLY DEFINED RANGE OF THEIR STAPLE BUSINESS HAVE DETERMINED THE
BASIC CHARACTERISTICS OF TRIAL PROCEDURE, THE RULES OF EVIDENCE, AND
THE GENERAL PRINCIPLES OF APPELLATE REVIEW.  MODERN ADMINISTRATIVE
TRIBUNALS ARE THE OUTGROWTH OF CONDITIONS FAR DIFFERENT FROM THOSE. 
FN3  TO A LARGE DEGREE THEY HAVE BEEN A RESPONSE TO THE FELT NEED OF
GOVERNMENTAL SUPERVISION OVER ECONOMIC ENTERPRISE - A SUPERVISION WHICH
COULD EFFECTIVELY BE EXERCISED NEITHER DIRECTLY THROUGH SELF-EXECUTING
LEGISLATION NOR BY THE JUDICIAL PROCESS.  THAT THIS MOVEMENT WAS
NATURAL AND ITS EXTENSION INEVITABLE, WAS A QUARTER CENTURY AGO THE
OPINION OF EMINENT SPOKESMEN OF THE LAW.  FN4  PERHAPS THE MOST
STRIKING CHARACTERISTIC OF THIS MOVEMENT HAS BEEN THE INVESTITURE OF
ADMINISTRATIVE AGENCIES WITH POWER FAR EXCEEDING AND DIFFERENT FROM THE
CONVENTIONAL JUDICIAL MODES FOR ADJUSTING CONFLICTING CLAIMS - MODES
WHEREBY INTERESTED LITIGANTS DEFINE THE SCOPE OF THE INQUIRY AND
DETERMINE THE DATA ON WHICH THE JUDICIAL JUDGMENT IS ULTIMATELY BASED. 
ADMINISTRATIVE AGENCIES HAVE POWER THEMSELVES TO INITIATE INQUIRY, OR,
WHEN THEIR AUTHORITY IS INVOKED, TO CONTROL THE RANGE OF INVESTIGATION
IN ASCERTAINING WHAT IS TO SATISFY THE REQUIREMENTS OF THE PUBLIC
INTEREST IN RELATION TO THE NEEDS OF VAST REGIONS AND SOMETIMES THE
WHOLE NATION IN THE ENJOYMENT OF FACILITIES FOR TRANSPORTATION,
COMMUNICATION AND OTHER ESSENTIAL PUBLIC SERVICES.  FN5  THESE
DIFFERENCES IN ORIGIN AND FUNCTION PRECLUDE WHOLESALE TRANSPLANTATION
OF THE RULES OF PROCEDURE, TRIAL, AND REVIEW WHICH HAVE EVOLVED FROM
THE HISTORY AND EXPERIENCE OF COURTS.  THUS, THIS COURT HAS RECOGNIZED
THAT BODIES LIKE THE INTERSTATE COMMERCE COMMISSION, INTO WHOSE MOULD
CONGRESS HAS CAST MORE RECENT ADMINISTRATIVE AGENCIES, "SHOULD NOT BE
TOO NARROWLY CONSTRAINED BY TECHNICAL RULES AS TO THE ADMISSIBILITY OF
PROOF," INTERSTATE COMMERCE COMMISSION V. BAIRD, 194 U.S. 25, 44,
SHOULD BE FREE TO FASHION THEIR OWN RULES OF PROCEDURE AND TO PURSUE
METHODS OF INQUIRY CAPABLE OF PERMITTING THEM TO DISCHARGE THEIR
MULTITUDINOUS DUTIES.  FN6  COMPARE NEW ENGLAND DIVISIONS CASE, 261
U.S. 184.  TO BE SURE, THE LAWS UNDER WHICH THESE AGENCIES OPERATE
PRESCRIBE THE FUNDAMENTALS OF FAIR PLAY.  THEY REQUIRE THAT INTERESTED
PARTIES BE AFFORDED AN OPPORTUNITY FOR HEARING AND THAT JUDGMENT MUST
EXPRESS A REASONED CONCLUSION.  BUT TO ASSIMILATE THE RELATION OF THESE
ADMINISTRATIVE BODIES AND THE COURTS TO THE RELATIONSHIP BETWEEN LOWER
AND UPPER COURTS IS TO DISREGARD THE ORIGIN AND PURPOSES OF THE
MOVEMENT FOR ADMINISTRATIVE REGULATION AND AT THE SAME TIME TO
DISREGARD THE TRADITIONAL SCOPE, HOWEVER FARREACHING, OF THE JUDICIAL
PROCESS.  UNLESS THESE VITAL DIFFERENTIATIONS BETWEEN THE FUNCTIONS OF
JUDICIAL AND ADMINISTRATIVE TRIBUNALS ARE OBSERVED, COURTS WILL STRAY
OUTSIDE THEIR PROVINCE AND READ THE LAWS OF CONGRESS THROUGH THE
DISTORTING LENSES OF INAPPLICABLE LEGAL DOCTRINE. 

UNDER THE RADIO ACT OF 1927 AS ORIGINALLY PASSED, THE COURT OF
APPEALS WAS AUTHORIZED IN REVIEWING ACTION OF THE RADIO COMMISSION TO
"ALTER OR REVISE THE DECISION APPEALED FROM AND ENTER SUCH JUDGMENT AS
TO IT MAY SEEM JUST."  SEC. 16 OF THE RADIO ACT OF 1927, 44 STAT.
1169.  THEREBY THE COURT OF APPEALS WAS CONSTITUTED "A SUPERIOR AND
REVISING AGENCY IN THE SAME FIELD" AS THAT IN WHICH THE RADIO
COMMISSION ACTED.  FEDERAL RADIO COMM'N V. GENERAL ELECTRIC CO., 281
U.S. 464, 467.  SINCE THE POWER THUS GIVEN WAS ADMINISTRATIVE RATHER
THAN JUDICIAL, THE APPELLATE JURISDICTION OF THIS COURT COULD NOT BE
INVOKED.  FEDERAL RADIO COMM'N V. GENERAL ELECTRIC CO., SUPRA.  TO LAY
THE BASIS FOR REVIEW HERE, CONGRESS AMENDED SEC. 16 SO AS TO TERMINATE
THE ADMINISTRATIVE OVERSIGHT OF THE COURT OF APPEALS.  C. 788, 46 STAT.
844.  IN "SHARP CONTRAST WITH THE PREVIOUS GRANT OF AUTHORITY" THE
COURT WAS RESTRICTED TO A PURELY JUDICIAL REVIEW.  "WHETHER THE
COMMISSION APPLIES THE LEGISLATIVE STANDARDS VALIDLY SET UP, WHETHER IT
ACTS WITHIN THE AUTHORITY CONFERRED OR GOES BEYOND IT, WHETHER ITS
PROCEEDINGS SATISFY THE PERTINENT DEMANDS OF DUE PROCESS, WHETHER, IN
SHORT, THERE IS COMPLIANCE WITH THE LEGAL REQUIREMENTS WHICH FIX THE
PROVINCE OF THE COMMISSION AND GOVERN ITS ACTION, ARE APPROPRIATE
QUESTIONS FOR JUDICIAL DECISION."  FEDERAL RADIO COMM'N V. NELSON BROS.
CO., 289 U.S. 266, 276. 

ON REVIEW THE COURT MAY THUS CORRECT ERRORS OF LAW AND ON REMAND THE
COMMISSION IS BOUND TO ACT UPON THE CORRECTION.  FEDERAL POWER COMM'N
V. PACIFIC CO., 307 U.S. 156.  BUT AN ADMINISTRATIVE DETERMINATION IN
WHICH IS IMBEDDED A LEGAL QUESTION OPEN TO JUDICIAL REVIEW DOES NOT
IMPLIEDLY FORECLOSE THE ADMINISTRATIVE AGENCY, AFTER ITS ERROR HAS BEEN
CORRECTED, FROM ENFORCING THE LEGISLATIVE POLICY COMMITTED TO ITS
CHARGE.  CF. FORD MOTOR CO. V. LABOR BOARD, 305 U.S. 364. 

THE COMMISSION'S RESPONSIBILITY AT ALL TIMES IS TO MEASURE
APPLICATIONS BY THE STANDARD OF "PUBLIC CONVENIENCE, INTEREST, OR
NECESSITY."  THE COMMISSION ORIGINALLY FOUND RESPONDENT'S APPLICATION
INCONSISTENT WITH THE PUBLIC INTEREST BECAUSE OF AN ERRONEOUS VIEW
REGARDING THE LAW OF PENNSYLVANIA.  THE COURT OF APPEALS LAID BARE THAT
ERROR, AND, IN COMPELLING OBEDIENCE TO ITS CORRECTION, EXHAUSTED THE
ONLY POWER WHICH CONGRESS GAVE IT.  AT THIS POINT THE COMMISSION WAS
AGAIN CHARGED WITH THE DUTY OF JUDGING THE APPLICATION IN THE LIGHT OF
"PUBLIC CONVENIENCE, INTEREST, OR NECESSITY."  THE FACT THAT IN ITS
FIRST DISPOSITION THE COMMISSION HAD COMMITTED A LEGAL ERROR DID NOT
CREATE RIGHTS OF PRIORITY IN THE RESPONDENT, AS AGAINST THE LATER
APPLICANTS, WHICH IT WOULD NOT HAVE OTHERWISE POSSESSED.  ONLY CONGRESS
COULD CONFER SUCH A PRIORITY.  IT HAS NOT DONE SO.  THE COURT OF
APPEALS CANNOT WRITE THE PRINCIPLE OF PRIORITY INTO THE STATUTE AS AN
INDIRECT RESULT OF ITS POWER TO SCRUTINIZE LEGAL ERRORS IN THE FIRST OF
AN ALLOWABLE SERIES OF ADMINISTRATIVE ACTIONS.  SUCH AN IMPLICATION
FROM THE CURTAILED REVIEW ALLOWED BY THE COMMUNICATIONS ACT IS AT WAR
WITH THE BASIC POLICY UNDERLYING THE STATUTE.  IT WOULD MEAN THAT FOR
PRACTICAL PURPOSES THE CONTINGENCIES OF JUDICIAL REVIEW AND OF
LITIGATION, RATHER THAN THE PUBLIC INTEREST, WOULD BE DECISIVE FACTORS
IN DETERMINING WHICH OF SEVERAL PENDING APPLICATIONS WAS TO BE
GRANTED. 

IT IS, HOWEVER, URGED UPON US THAT IF ALL MATTERS OF ADMINISTRATIVE
DISCRETION REMAIN OPEN FOR DETERMINATION ON REMAND AFTER REVERSAL, A
SUCCESSION OF SINGLE DETERMINATIONS UPON SINGLE LEGAL ISSUES IS
POSSIBLE WITH RESULTING DELAY AND HARDSHIP TO THE APPLICANT.  IT IS
ALWAYS EASY TO CONJURE UP EXTREME AND EVEN OPPRESSIVE POSSIBILITIES IN
THE EXERTION OF AUTHORITY.  BUT COURTS ARE NOT CHARGED WITH GENERAL
GUARDIANSHIP AGAINST ALL POTENTIAL MISCHIEF IN THE COMPLICATED TASKS OF
GOVERNMENT.  THE PRESENT CASE MAKES TIMELY THE REMINDER THAT
"LEGISLATURES ARE ULTIMATE GUARDIANS OF THE LIBERTIES AND WELFARE OF
THE PEOPLE IN QUITE AS GREAT A DEGREE AS THE COURTS."  MISSOURI, K. &
T. RY. CO. V. MAY, 194 U.S. 267, 270.  CONGRESS WHICH CREATES AND
SUSTAINS THESE AGENCIES MUST BE TRUSTED TO CORRECT WHATEVER DEFECTS
EXPERIENCE MAY REVEAL.  INTERFERENCE BY THE COURTS IS NOT CONDUCIVE TO
THE DEVELOPMENT OF HABITS OF RESPONSIBILITY IN ADMINISTRATIVE
AGENCIES.  ANGLO-AMERICAN COURTS AS WE NOW KNOW THEM ARE THEMSELVES IN
NO SMALL MEASURE THE PRODUCT OF A HISTORIC PROCESS. 

THE JUDGMENT IS REVERSED, WITH DIRECTIONS TO DISSOLVE THE WRIT OF
MANDAMUS AND TO DISMISS RESPONDENT'S PETITION.  REVERSED. 

FN1  FOR THE LEGISLATIVE HISTORY OF THE ACT OF 1927, SEE H. REP. NO.
464, S. REP. NO. 772, 69TH CONG., 1ST SESS.; 67 CONG. REC. 5473-5504,
5555-86; 5645-47; 12335-59; 12480, 12497-12508, 12614-18; 68 CONG. REC.
2556-80, 2750-51, 2869-82, 3025-39, 3117-34, 3257-62, 3329-36, 3569-71,
4109-55.  A SUMMARY OF THE OPERATION OF PREVIOUS REGULATORY LAWS MAY BE
FOUND IN HERRING AND GROSS, TELECOMMUNICATIONS, PP. 239-45. 

FN2  SINCE THE BEGINNING OF REGULATION UNDER THE ACT OF 1927
COMPARATIVE CONSIDERATIONS HAVE GOVERNED THE APPLICATION OF STANDARDS
OF "PUBLIC CONVENIENCE, INTEREST, OR NECESSITY" LAID DOWN BY THE LAW. 
"  ...  THE COMMISSION DESIRES TO POINT OUT THAT THE TEST - 'PUBLIC
INTEREST, CONVENIENCE, OR NECESSITY' - BECOMES A MATTER OF A
COMPARATIVE AND NOT AN ABSOLUTE STANDARD WHEN APPLIED TO BROADCASTING
STATIONS.  SINCE THE NUMBER OF CHANNELS IS LIMITED AND THE NUMBER OF
PERSONS DESIRING TO BROADCAST IS FAR GREATER THAN CAN BE ACCOMMODATED,
THE COMMISSION MUST DETERMINE FROM AMONG THE APPLICANTS BEFORE IT WHICH
OF THEM WILL, IF LICENSED, BEST SERVE THE PUBLIC.  IN A MEASURE,
PERHAPS, ALL OF THEM GIVE MORE OR LESS SERVICE.  THOSE WHO GIVE THE
LEAST, HOWEVER, MUST BE SACRIFICED FOR THOSE WHO GIVE THE MOST.  THE
EMPHASIS MUST BE FIRST AND FOREMOST ON THE INTEREST, THE CONVENIENCE,
AND THE NECESSITY OF THE LISTENING PUBLIC, AND NOT ON THE INTEREST,
CONVENIENCE, OR NECESSITY OF THE INDIVIDUAL BROADCASTER OR THE
ADVERTISER."  SECOND ANNUAL REPORT, FEDERAL RADIO COMMISSION, 1928, PP.
169-70. 

FN3  SEE MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND, PP. 415-18;
LANDIS, THE ADMINISTRATIVE PROCESS, PASSIM. 

FN4  SEE, FOR INSTANCE, THE ADDRESS OF ELIHU ROOT AS PRESIDENT OF THE
AMERICAN BAR ASSOCIATION: 

"THERE IS ONE SPECIAL FIELD OF LAW DEVELOPMENT WHICH HAS MANIFESTLY
BECOME INEVITABLE.  WE ARE ENTERING UPON THE CREATION OF A BODY OF
ADMINISTRATIVE LAW QUITE DIFFERENT IN ITS MACHINERY, ITS REMEDIES, AND
ITS NECESSARY SAFEGUARDS FROM THE OLD METHODS OF REGULATION BY SPECIFIC
STATUTES ENFORCED BY THE COURTS.  ...  THERE WILL BE NO WITHDRAWAL FROM
THESE EXPERIMENTS.  WE SHALL GO ON; WE SHALL EXPAND THEM, WHETHER WE
APPROVE THEORETICALLY OR NOT, BECAUSE SUCH AGENCIES FURNISH PROTECTION
TO RIGHTS AND OBSTACLES TO WRONG DOING WHICH UNDER OUR NEW SOCIAL AND
INDUSTRIAL CONDITIONS CANNOT BE PRACTICALLY ACCOMPLISHED BY THE OLD AND
SIMPLE PROCEDURE OF LEGISLATURES AND COURTS AS IN THE LAST
GENERATION."  41 A.B.A. REP. 355, 368-69. 

FN5 SEE UNITED STATES V. LOWDEN, 308 U.S. 225; HERRING, PUBLIC
ADMINISTRATION AND THE PUBLIC INTEREST, PASSIM. 

FN6  THE COMMUNICATIONS COMMISSION'S RULES OF PRACTICE, RULE 106.4,
PROVIDED THAT "THE COMMISSION WILL, SO FAR AS PRACTICABLE, ENDEAVOR TO
FIX THE SAME DATE  ...  FOR HEARING ON ALL APPLICATIONS WHICH  ...
PRESENT CONFLICTING CLAIMS  ...  EXCEPTING, HOWEVER, APPLICATIONS FILED
AFTER ANY SUCH APPLICATION HAS BEEN DESIGNATED FOR HEARING." 
RESPONDENT CONTENDS, AND THE COURT BELOW SEEMED TO BELIEVE THAT THIS
RULE BOUND THE COMMISSION TO GIVE RESPONDENT A NON-COMPARATIVE
CONSIDERATION BECAUSE ITS APPLICATION HAD BEEN SET DOWN FOR HEARING
BEFORE THE LATER AND RIVAL APPLICATIONS WERE FILED.  THE COMMISSION
INTERPRETS THIS RULE SIMPLY AS GOVERNING THE ORDER IN WHICH
APPLICATIONS SHALL BE HEARD, AND NOT TOUCHING UPON THE ORDER IN WHICH
THEY SHALL BE ACTED UPON OR THE MANNER IN WHICH THEY SHALL BE
CONSIDERED.  THAT INTERPRETATION IS BINDING UPON THE COURTS.  A.T. & T.
CO. V. UNITED STATES, 299 U.S. 232. 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 
..END :








FLY V. HEITMEYER, 309 U.S. 146 


NO. 316.  ARGUED JANUARY 11, 1940.  - DECIDED JANUARY 29, 1940.  - 70
APP. D.C. 162 - 105 F.2D 41, REVERSED. 


DECIDED UPON THE AUTHORITY OF THE CASE LAST PRECEDING. 

FLY ET AL. V. HEITMEYER. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

ON MARCH 25, 1935, HEITMEYER, RESPONDENT HERE, APPLIED FOR A PERMIT
FROM THE FEDERAL COMMUNICATIONS COMMISSION UNDER SEC. 319 OF THE
COMMUNICATIONS ACT OF 1934, C. 652, 48 STAT. 1089, 47 U.S.C. 319, TO
CONSTRUCT A BROADCASTING STATION AT CHEYENNE, WYOMING.  HIS APPLICATION
AND A COMPETING ONE WERE HEARD BY AN EXAMINER.  THE COMMISSION, ON MAY
1, 1936, DENIED RESPONDENT'S APPLICATION ON THE SOLE GROUND THAT HE WAS
FINANCIALLY DISQUALIFIED.  HE APPEALED TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA AND THE COMMISSION'S DECISION WAS
REVERSED.  HEITMEYER V. FEDERAL COMMUNICATIONS COMMISSION, 68 APP. D.C.
180; 95 F.2D 91.  TO PROCEED IN CONFORMITY WITH THIS OPINION, THE CASE
WAS REMANDED TO THE COMMISSION. 

AFTER HEITMEYER'S APPEAL TWO OTHER APPLICATIONS FOR THE SAME
FACILITIES WERE FILED WITH THE COMMISSION.  FOLLOWING INTERMEDIATE
LITIGATION, NEEDLESS HERE TO RECOUNT, THE COMMISSION DIRECTED THAT
RESPONDENT'S CASE BE REOPENED IN CONJUNCTION WITH THE PENDING RIVAL
APPLICATIONS.  BEFORE THIS HEARING COULD BE HAD, RESPONDENT OBTAINED
FROM THE COURT OF APPEALS A WRIT OF MANDAMUS DIRECTING THE COMMISSION
TO RESTRICT CONSIDERATION OF HIS APPLICATION TO THE RECORD ORIGINALLY
BEFORE IT.  MCNINCH V. HEITMEYER, 70 APP. D.C. 162; 105 F.2D 41. 
BECAUSE IMPORTANT QUESTIONS OF ADMINISTRATIVE LAW WERE INVOLVED, WE
GRANTED CERTIORARI.  308 U.S. 540. 

THIS CASE IS CONTROLLED BY OUR DECISION IN FEDERAL COMMUNICATIONS
COMMISSION V. POTTSVILLE BROADCASTING CO., ANTE, P. 134. 

THE ONLY RELEVANT DIFFERENCE BETWEEN THE TWO CASES IS THAT HERE THE
COMMISSION PROPOSED ON REMAND NOT ONLY TO RECONSIDER RESPONDENT'S
APPLICATION ON ORAL ARGUMENT WITH SUBSEQUENTLY FILED RIVAL
APPLICATIONS, BUT TO REOPEN THE RECORD AND TAKE NEW EVIDENCE ON THE
COMPARATIVE ABILITY OF THE VARIOUS APPLICANTS TO SATISFY "PUBLIC
CONVENIENCE, INTEREST, OR NECESSITY."  BUT THE COMMISSION'S DUTY WAS TO
APPLY THE STATUTORY STANDARD IN DECIDING WHICH OF THE APPLICANTS WAS TO
RECEIVE A PERMIT AFTER IT FELL INTO LEGAL ERROR AS WELL AS BEFORE.  IF,
IN THE COMMISSION'S JUDGMENT, NEW EVIDENCE WAS NECESSARY TO DISCHARGE
ITS DUTY, THE FACT OF A PREVIOUSLY ERRONEOUS DENIAL SHOULD NOT,
ACCORDING TO THE PRINCIPLES ENUNCIATED IN THE POTTSVILLE CASE, ANTE,
BAR IT FROM ACCESS TO THE NECESSARY EVIDENCE FOR CORRECT JUDGMENT. 

THE JUDGMENT IS REVERSED, WITH DIRECTIONS TO DISSOLVE THE WRIT OF
MANDAMUS AND TO DISMISS RESPONDENT'S PETITION.  REVERSED. 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 
..END :

















HELVERING V. FITCH, 309 U.S. 149 


NO. 243.  ARGUED JANUARY 5, 8, 1940.  - DECIDED JANUARY 29, 1940.  - 103
F.2D 702, REVERSED. 


1.  A HUSBAND, CREATING A TRUST FOR THE SUPPORT OF HIS WIFE, FROM WHOM
HE WAS SEPARATED, AND IN SETTLEMENT OF A SUIT BROUGHT BY HER FOR
MAINTENANCE, TRANSFERRED TO A TRUSTEE IN IOWA CERTAIN PREMISES AND A
LEASE THEREON.  A STIPULATED AMOUNT OF THE INCOME WAS TO BE PAID
MONTHLY TO THE WIFE, AND THE TRUST WAS IRREVOCABLE.  THE HUSBAND
RESERVED NO INTEREST IN THE TRUST ESTATE (OTHER THAN A LIFE INTEREST IN
THE EXCESS OF INCOME OVER THE AMOUNT PAYABLE TO THE WIFE), AND DID NOT
UNDERTAKE TO MAKE GOOD ANY DEFICIENCIES IN PAYMENTS TO THE WIFE.  THE
ARRANGEMENT WAS SUBSEQUENTLY CONFIRMED BY AN IOWA COURT IN A DECREE OF
DIVORCE.  HELD, A DISTRIBUTION OF SUCH TRUST INCOME TO THE WIFE (IN
1933) WAS INCLUDIBLE AS INCOME OF THE HUSBAND FOR THE PURPOSE OF THE
FEDERAL INCOME TAX.  PP. 150, 156. 

2.  THE GENERAL RULE IS THAT AMOUNTS PAID TO A DIVORCED WIFE UNDER A
DECREE FOR ALIMONY ARE NOT REGARDED AS INCOME OF THE WIFE BUT AS PAID
IN DISCHARGE OF THE GENERAL OBLIGATION OF THE HUSBAND TO SUPPORT, WHICH
IS MADE SPECIFIC BY THE DECREE.  DOUGLAS V. WILLCUTS, 296 U.S. 1.  P.
151. 

3.  THE BURDEN OF ESTABLISHING THAT THE PRESENT CASE WAS NOT WITHIN
THE GENERAL RULE COULD BE SUSTAINED ONLY BY CLEAR AND CONVINCING PROOF,
HERE LACKING, THAT THE EFFECT OF THE IOWA LAW, THE TRUST, AND THE
DIVORCE DECREE WAS A FULL AND COMPLETE DISCHARGE OF THE OBLIGATION OF
THE TAXPAYER FOR THE SUPPORT OF HIS WIFE.  P. 156. 

4.  QUERY WHETHER UNDER THE IOWA DIVORCE LAW THE COURT RETAINED POWER
TO MODIFY ITS DECREE BY REALLOCATING THE INCOME FROM THE TRUST PROPERTY
AS BETWEEN THE HUSBAND AND WIFE.  P. 155. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. FITCH. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 308 U.S. 535, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 37 B.T.A. 1330, SUSTAINING A DETERMINATION OF A
DEFICIENCY IN INCOME TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER CLAIMED THAT AN AMOUNT OF $7,128 DISTRIBUTED IN 1933 UNDER
A SO-CALLED ALIMONY TRUST TO RESPONDENT'S DIVORCED WIFE SHOULD HAVE
BEEN INCLUDED IN RESPONDENT'S TAXABLE INCOME FOR THAT YEAR.  THE BOARD
OF TAX APPEALS AGREED AND FOUND A DEFICIENCY, 37 B.T.A. 1330.  THE
CIRCUIT COURT OF APPEALS REVERSED, ONE JUDGE DISSENTING, 103 F.2D 702. 
WE GRANTED CERTIORARI BECAUSE OF THE ASSERTED FAILURE OF THAT COURT
CORRECTLY TO APPLY THE PRINCIPLE INVOLVED IN DOUGLAS V. WILLCUTS, 296
U.S. 1. 

THE SO-CALLED ALIMONY TRUST IN QUESTION WAS CREATED A FEW YEARS
BEFORE THE DIVORCE, WHILE RESPONDENT AND HIS WIFE WERE SEPARATED, AND
IN SETTLEMENT OF A SUIT BROUGHT BY HER FOR SEPARATE MAINTENANCE. 
CERTAIN PREMISES (A HAIR TONIC FACTORY AND A LONG TERM LEASE THEREON)
WERE TRANSFERRED TO A TRUSTEE TO HOLD TITLE, COLLECT RENTS AND AFTER
DEDUCTION OF EXPENSES TO PAY THE WIFE $600 A MONTH DURING HER LIFE AND
THE BALANCE TO RESPONDENT FOR HIS LIFE.  FN1  ON THE DEATH OF EITHER
RESPONDENT OR HIS WIFE THE DECEASED'S SHARE OF THE INCOME WAS TO BE
PAID TO THEIR CHILDREN.  FN2  THE TRUST WAS TO CONTINUE AT LEAST
FIFTEEN YEARS.  ON THE DEATH OF BOTH RESPONDENT AND HIS WIFE THE
PRINCIPAL WAS TO BE PAID OVER TO THEIR CHILDREN.  THE TRUST WAS
IRREVOCABLE.  AND WHILE RESPONDENT COVENANTED TO PAY OFF CERTAIN
ENCUMBRANCES ON THE TRUST PROPERTY, HE DID NOT UNDERWRITE IN WHOLE OR
IN PART THE $600 MONTHLY PAYMENTS TO HIS WIFE. 

IN 1925 SHE FILED SUIT FOR A DIVORCE IN AN IOWA COURT.  A PROPERTY
SETTLEMENT WAS AGREED UPON WHICH INCLUDED THE TRUST AGREEMENT AND, IN
ADDITION, PROVIDED FOR A TRANSFER TO HER BY RESPONDENT OF CERTAIN
SHARES OF STOCK AND CASH.  FN3  THE DIVORCE DECREE CONFIRMED THE
PROPERTY AND ALIMONY SETTLEMENT.  FN4 

THE GENERAL RULE IS CLEAR.  "AMOUNTS PAID TO A DIVORCED WIFE UNDER A
DECREE FOR ALIMONY ARE NOT REGARDED AS INCOME OF THE WIFE BUT AS PAID
IN DISCHARGE OF THE GENERAL OBLIGATION TO SUPPORT, WHICH IS MADE
SPECIFIC BY THE DECREE."  DOUGLAS V. WILLCUTS, SUPRA, P. 8.  IT IS
PLAIN THAT THERE THE ALIMONY TRUST, WHICH WAS APPROVED BY THE DIVORCE
DECREE, WAS MERELY SECURITY FOR A CONTINUING OBLIGATION OF THE TAXPAYER
TO SUPPORT HIS DIVORCED WIFE.  THAT WAS MADE EVIDENT NOT ONLY BY HIS
AGREEMENT TO MAKE UP ANY DEFICIENCIES IN THE $15,000 ANNUAL SUM TO BE
PAID HER UNDER THE TRUST.  IT WAS ALSO CONFIRMED BY THE POWER OF THE
MINNESOTA DIVORCE COURT SUBSEQUENTLY TO ALTER AND REVISE ITS DECREE AND
THE PROVISIONS MADE THEREIN FOR THE WIFE'S BENEFIT.  LIKEWISE
CONSISTENT WITH THE USE OF THE ALIMONY TRUST AS A SECURITY DEVICE WAS
THE PROVISION THAT ON DEATH OF THE DIVORCED WIFE THE CORPUS OF THE
TRUST WAS TO BE TRANSFERRED BACK TO THE TAXPAYER.  RESPONDENT INSISTS
THAT IN THE INSTANT CASE THERE IS NO CONTINUING OBLIGATION TO WHICH THE
INCOME OF THE ALIMONY TRUST IS APPLIED BUT RATHER THAT THE PROPERTY AND
ALIMONY SETTLEMENT APPROVED BY THE IOWA COURT EFFECTED AN ABSOLUTE
DISCHARGE OF ANY DUTY OR OBLIGATION ON HIS PART TO SUPPORT HIS DIVORCED
WIFE.  IT IS TRUE THAT THERE IS NO COVENANT OR GUARANTEE TO MAKE UP ANY
DEFICIENCY IN THE MONTHLY PAYMENT TO HIS DIVORCED WIFE, AS THERE WAS IN
THE DOUGLAS CASE.  AND UNLIKE THAT ALIMONY TRUST, THE INSTANT ONE,
THOUGH GRANTING THE TAXPAYER A PARTICIPATION IN THE INCOME, IRREVOCABLY
ALIENATES THE CORPUS.  OTHER INDICIA OF THE USE OF THIS ALIMONY TRUST
AS A SECURITY DEVICE FOR ANY CONTINUING OBLIGATION OF RESPONDENT ARE
ALLEGED TO BE ABSENT BY REASON OF THE LACK OF POWER IN THE IOWA COURT
TO MODIFY THE DECREE CONFIRMING THE PROPERTY AND ALIMONY SETTLEMENT. 

THE IOWA STATUTE PROVIDES:  "WHEN A DIVORCE IS DECREED, THE COURT MAY
MAKE SUCH ORDER IN RELATION TO THE CHILDREN, PROPERTY, PARTIES, AND THE
MAINTENANCE OF THE PARTIES AS SHALL BE RIGHT.  SUBSEQUENT CHANGES MAY
BE MADE BY IT IN THESE RESPECTS WHEN CIRCUMSTANCES RENDER THEM
EXPEDIENT."  FN5 

ADMITTEDLY THE COURT UNDER THAT STATUTE HAS THE POWER TO MODIFY
PROVISIONS IN THE ORIGINAL DECREE FOR THE CONTINUED SUPPORT AND
MAINTENANCE OF THE WIFE.  FN6  AND IT LIKEWISE SEEMS WELL SETTLED BY A
LONG LINE OF IOWA CASES THAT WHERE THE ORIGINAL DECREE MAKES NO
PROVISION FOR ALIMONY, THERE IS NO POWER SUBSEQUENTLY TO MODIFY THE
DECREE SO AS TO PROVIDE IT.  FN7  AND, RESPONDENT CONTENDS, WHERE
ALIMONY IS ALLOWED IN A LUMP SUM OR A PROPERTY SETTLEMENT IS RATIFIED
BY THE DECREE, THE COURT RETAINS NO POWER TO MODIFY. 

SPAIN V. SPAIN, 177 IOWA 249; 158 N.W. 529, AND MCCOY V. MCCOY, 191
IOWA 973; 183 N.W. 377, ON WHICH RESPONDENT AND THE CIRCUIT COURT OF
APPEALS PLACE RELIANCE ARE NOT IN POINT SINCE THOSE DIVORCE DECREES,
UNLIKE THE INSTANT ONE, MADE NO PROVISION FOR ALIMONY.  IN SPAIN V.
SPAIN, SUPRA, THE SUPREME COURT OF IOWA SPECIFICALLY RESERVED THE
QUESTION OF THE POWER TO MODIFY A DIVORCE DECREE INVOLVING A PROPERTY
SETTLEMENT.  AS TO THAT IT SAID (PP. 260-261):  "AS TO AN AWARD IN
GROSS, OR A DIVISION OF THE PROPERTY, BASED UPON AN EQUITABLE
APPORTIONMENT OF THE PROPERTY OF EITHER OF THE PARTIES AT THE TIME THE
DIVORCE IS GRANTED, WE HAVE NO OCCASION TO SPEAK, FOR THAT MATTER IS
NOT IN THE CASE." 

LIKEWISE BARISH V. BARISH, 190 IOWA 493; 180 N.W. 724, CITED BELOW
AND URGED HERE IN SUPPORT OF RESPONDENT'S CONTENTION, IS OF LITTLE AID,
FOR IN SPITE OF A STRONG CONCURRING OPINION THAT THE COURT HAD NO POWER
TO MODIFY AN ALLOWANCE OF "GROSS" OR "PERMANENT" ALIMONY, THE MAJORITY
APPLIED THE STATUTE AND CONCLUDED (P. 501) "WHATEVER THE EXTENT OF THE
POWER OF THE COURT MAY BE TO MAKE SUCH INCREASE, IT IS ALWAYS SLOW TO
EXERCISE SUCH POWER, EXCEPT IN THE PRESENCE OF EXTRAORDINARY
CIRCUMSTANCES, SUCH AS ARE NOT PRESENT HERE."  TO BE SURE, THERE IS THE
FOLLOWING STRONG STATEMENT IN KRAFT V. KRAFT, 193 IOWA 602, 607; 187
N.W. 449:  "WE ARE INCLINED TO THE VIEW THAT, WHERE ALIMONY IS ALLOWED
IN A LUMP SUM, AS PERMANENT ALIMONY, OR WHERE THERE IS A DIVISION OF
THE REAL PROPERTY OF THE PARTIES, AS PERMANENT ALIMONY, THE STATUTE
DOES NOT AUTHORIZE A CHANGE THEREIN, EXCEPT FOR SUCH REASONS WHICH
WOULD JUSTIFY THE SETTING ASIDE OR CHANGING OF A DECREE IN ANY OTHER
CASE; THAT THE PARTY AWARDED PERMANENT ALIMONY IS NOT ENTITLED TO
PERMANENT ALIMONY AND SUPPORT BOTH  ..."  AND IN CARR V. CARR, 185 IOWA
1205; 171 N.W. 785, 787, THAT COURT STATED, P. 1211: "ALIMONY IS
ALLOWED IN LIEU OF DOWER AND THE PRIOR DUTY OF SUPPORT, AND A REVIEW OF
THE DECREE AWARDING OR REFUSING SAME CAN BE HAD ONLY FOR SUCH FRAUD OR
MISTAKE AS WOULD AUTHORIZE THE SETTING ASIDE OR MODIFICATION OF ANY
OTHER DECREE."  IN THAT CASE THE DIVORCE DECREE REQUIRED THE HUSBAND,
INTER ALIA, TO CONVEY CERTAIN REAL ESTATE TO A TRUSTEE FOR THE
EXCLUSIVE BENEFIT OF THE WIFE TO BE HELD IN TRUST FOR FIVE YEARS,
DURING WHICH TIME THE INCOME WAS TO BE PAID OVER TO THE WIFE AND AT THE
END THEREOF THE TRUSTEE, ON DEMAND, WAS TO CONVEY THE PROPERTY TO HER. 
MEANWHILE, THE TRUSTEE HAD THE POWER TO SELL THE PROPERTY AT NOT LESS
THAN $100 AN ACRE.  SHORTLY BEFORE THE EXPIRATION OF THE FIVE-YEAR
PERIOD, THE DIVORCED HUSBAND FILED A CROSS-PETITION IN THE DIVORCE SUIT
ASKING FOR A MODIFICATION OF THE TRUST IN ORDER TO PROTECT HIS FORMER
WIFE FROM HER OWN EXTRAVAGANCE AND HER INEXPERIENCE IN BUSINESS
AFFAIRS.  APPARENTLY THE RELIEF ASKED WAS NOT BASED ON THE IOWA STATUTE
GIVING THE COURT POWER TO MAKE SUBSEQUENT CHANGES IN THE DIVORCE DECREE
"WHEN CIRCUMSTANCES RENDER THEM EXPEDIENT."  FOR THE COURT STATED THAT
THE MODIFICATION OF THE DECREE WAS SOUGHT ON THE GROUNDS (1) THAT THE
DONOR OF THE TRUST WAS ENTITLED TO HAVE IT CARRIED OUT IN ACCORDANCE
WITH ITS TERMS AND THE REAL PURPOSE FOR WHICH IT WAS CREATED; AND (2)
THAT, IN THE ALTERNATIVE, HE WAS ENTITLED TO HAVE A GUARDIAN OF THE
PROPERTY APPOINTED. 

HOWEVER THAT MAY BE, MUCH OF THE WEIGHT WHICH RESPONDENT ACCORDS
KRAFT V. KRAFT AND CARR V. CARR, SUPRA, SEEMS TO HAVE BEEN DISSIPATED
BY MCNARY V. MCNARY, 206 IOWA 942; 221 N.W. 580.  IN THAT CASE THE
SUPREME COURT OF IOWA HAD SQUARELY BEFORE IT THE QUESTION OF WHETHER OR
NOT UNDER THE FOREGOING STATUTE A DECREE OF PERMANENT ALIMONY AWARDING
PERSONAL AND REAL PROPERTY TO THE WIFE COULD BE ALTERED.  THE COURT
AFTER STATING THAT IT KNEW OF NO CASE WHERE SUCH A DECREE HAD BEEN
SUBSEQUENTLY MODIFIED, ADDED (P. 946):  "THIS QUESTION IS NOT ARGUED BY
THE PARTIES, AND WE FIND IT UNNECESSARY TO MAKE A PRONOUNCEMENT
THEREON."  AND, SIGNIFICANTLY, IT PROCEEDED TO APPLY THE STATUTE AND
FINDING THAT ITS CONDITIONS HAD NOT BEEN SATISFIED, IT DENIED THE
RELIEF ASKED BY THE DIVORCED HUSBAND. 

ON THIS STATE OF THE IOWA AUTHORITIES WE CAN ONLY SPECULATE AS TO THE
POWER OF THE IOWA COURT TO MODIFY ALIMONY AWARDED IN A LUMP SUM OR A
PROPERTY SETTLEMENT RATIFIED BY A DIVORCE DECREE.  TO BE SURE, KRAFT V.
KRAFT, SUPRA, INVOLVED SOME FEATURES COMMON TO THE INSTANT CASE, SINCE
THE WIFE WAS TO RECEIVE THE INCOME OF $4,000 TO BE PLACED IN TRUST BY
THE HUSBAND OR, UNTIL HE PLACED IT IN TRUST, 5 PER CENT ON THAT
AMOUNT.  BUT THE REFUSAL TO MODIFY THAT DECREE WAS NOT PLACED SQUARELY,
OR EVEN LARGELY, ON THE LACK OF POWER TO DO SO BUT ON OTHER
CIRCUMSTANCES.  FURTHERMORE, THE UNCERTAINTY CREATED BY MCNARY V.
MCNARY, SUPRA, MAKES PERHAPS FOR EVEN GREATER UNCERTAINTY WHERE AN
ALIMONY TRUST OF THE KIND HERE INVOLVED IS CONCERNED.  AT LEAST
RESPONDENT HAS NOT ESTABLISHED A NECESSARY IDENTITY IN TREATMENT OF
TRANSFERS OF PERSONAL OR REAL PROPERTY ON THE ONE HAND AND ALLOWANCE OF
INCOME OUT OF THIS KIND OF ALIMONY TRUST ON THE OTHER.  EVEN ON THE
AUTHORITY OF KRAFT V. KRAFT, SUPRA, RESPONDENT HAS NOT CLEARLY SHOWN
THAT IN IOWA DIVORCE LAW THE COURT HAS LOST ALL JURISDICTION TO ALTER
OR REVISE THE AMOUNT OF INCOME PAYABLE TO THE WIFE FROM AN ENTERPRISE
WHICH HAS BEEN PLACED IN TRUST.  FOR ALL THAT WE KNOW IT MIGHT RETAIN
THE POWER TO REALLOCATE THE INCOME FROM THAT PROPERTY EVEN THOUGH IT
LACKED THE POWER TO ADD TO OR SUBTRACT FROM THE CORPUS OR TO TAP OTHER
SOURCES OF INCOME.  FN8  IF IT DID HAVE SUCH POWER, THEN IT COULD BE
SAID THAT A DECREE APPROVING AN ALIMONY TRUST OF THE KIND HERE INVOLVED
MERELY PLACED UPON THE PRE-EXISTING DUTY OF THE HUSBAND A PARTICULAR
AND SPECIFIED SANCTION.  IN THAT EVENT, THE CASE WOULD BE LITTLE
DIFFERENT FROM ONE WHERE THE HUSBAND WAS DIRECTED TO MAKE SPECIFIED
PAYMENTS TO THE DIVORCED WIFE.  AND WE SEE NO REASON WHY THE RULE OF
DOUGLAS V. WILLCUTS, SUPRA, SHOULD NOT THEN APPLY. 

ENOUGH HAS BEEN SAID TO SHOW THAT RESPONDENT HAS NOT SUSTAINED THE
BURDEN OF ESTABLISHING THAT HIS CASE FALLS OUTSIDE THE GENERAL RULE
EXPRESSED IN DOUGLAS V. WILLCUTS, SUPRA.  IF WE WERE TO CONCLUDE THAT
THIS CASE IS AN EXCEPTION TO THAT RULE WE WOULD BE ACTING LARGELY ON
CONJECTURE AS TO IOWA LAW.  THAT WE CANNOT DO.  FOR IF SUCH A RESULT IS
TO OBTAIN, IT MUST BE BOTTOMED ON CLEAR AND CONVINCING PROOF, AND NOT
ON MERE INFERENCES AND VAGUE CONJECTURES, THAT LOCAL LAW AND THE
ALIMONY TRUST HAVE GIVEN THE DIVORCED HUSBAND A FULL DISCHARGE AND
LEAVE NO CONTINUING OBLIGATION HOWEVER CONTINGENT.  ONLY IN THAT EVENT
CAN INCOME TO THE WIFE FROM AN ALIMONY TRUST BE TREATED UNDER THE
REVENUE ACTS THE SAME AS INCOME ACCRUING FROM PROPERTY AFTER A DEBTOR
HAS TRANSFERRED THAT PROPERTY TO HIS CREDITOR IN FULL SATISFACTION OF
HIS OBLIGATION - UNLESS OF COURSE CONGRESS DECIDES OTHERWISE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED. 

FN1  RESPONDENT AND HIS WIFE SEPARATED IN 1917.  IN 1919 RESPONDENT
PURCHASED A HOME FOR HIS WIFE, FURNISHED IT FOR HER, AND GAVE HER AN
AUTOMOBILE.  IN THE SAME YEAR F.W. FITCH CO. WAS INCORPORATED AND
ACQUIRED THE ASSETS OF A PREDECESSOR PARTNERSHIP IN EXCHANGE FOR 2,000
OF ITS SHARES.  OF THESE SHARES 1860 WERE ISSUED TO RESPONDENT AND 10
TO HIS WIFE.  SHE WAS ALSO AN OFFICER AND DIRECTOR OF THE COMPANY, WITH
A MONTHLY SALARY OF $300. 

WHEN THE SEPARATE MAINTENANCE SUIT WAS SETTLED IN 1923, RESPONDENT
LEASED CERTAIN PREMISES, OWNED BY HIM, TO THE F.W. FITCH CO. FOR 99
YEARS, AT AN ANNUAL RENTAL OF $12,000.  THESE PREMISES AND THAT LEASE
WERE TRANSFERRED TO THE TRUSTEE.  UPON CREATION OF THE TRUST THE WIFE
CEASED TO BE AN OFFICER AND DIRECTOR OF F.W. FITCH CO. AND RECEIVED NO
FURTHER SALARY FROM IT. 

FN2  NO QUESTION OF MINOR CHILDREN IS HERE INVOLVED, THE YOUNGEST OF
THE FOUR CHILDREN HAVING BECOME OF AGE IN 1927. 

FN3  600 SHARES OF STOCK OF F.W. FITCH CO. AND $23,500. 

FN4  "IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED, THAT THE
PLAINTIFF, LETTIE S. FITCH, BE, AND SHE IS HEREBY, DIVORCED FROM THE
DEFENDANT, FRED W. FITCH, ABSOLUTELY; ...  THAT THE TRUST AGREEMENT
WHICH IS REFERRED TO IN THE DEFENDANT'S ANSWER AS HAVING BEEN ENTERED
INTO BETWEEN THESE PARTIES ON OR ABOUT THE 23RD DAY OF APRIL 1923  ...
BE, AND THE SAME IS HEREBY RATIFIED AND CONFIRMED BY THE COURT; AND
THAT THE PROPERTY AND ALIMONY SETTLEMENT MADE BY THE PARTIES BE, AND IT
IS HEREBY CONFIRMED BY THE COURT."    FN5  SEC. 10481, IOWA CODE. 

FN6  SEE CORL V. CORL, 217 IOWA 812; 253 N.W. 125; JUNGER V. JUNGER,
215 IOWA 636; 246 N.W. 659; BOQUETTE V. BOQUETTE, 215 IOWA 990; 247
N.W. 255; TONEY V. TONEY, 213 IOWA 398; 239 N.W. 21; MORRISON V.
MORRISON, 208 IOWA 1384; 227 N.W. 330. 

FN7  SPAIN V. SPAIN, 177 IOWA 249; 158 N.W. 529; MCCOY V. MCCOY, 191
IOWA 973; 183 N.W. 377; HANDSAKER V. HANDSAKER, 223 IOWA 462; 272 N.W.
609; DUVALL V. DUVALL, 215 IOWA 24; 244 N.W. 718; DOEKSON V. DOEKSON,
202 IOWA 489; 210 N.W. 545. 

FN8  CF. SHAW V. SHAW, 59 ILL. APP. 268.    MR. JUSTICE REED CONCURS
IN THE RESULT. 

MR. JUSTICE MCREYNOLDS IS OF THE OPINION THAT THE JUDGMENT BELOW
SHOULD BE AFFIRMED. 
..END :



ILLINOIS CENT. R. CO. V. MINNESOTA, 309 U.S. 157 


NO. 222.  ARGUED JANUARY 8, 1940.  - DECIDED JANUARY 29, 1940.  - 205
MINN. 621 - 286 N.W. 359, AFFIRMED. 


1.  MINNESOTA IMPOSED ON RAILROADS A PROPERTY TAX MEASURED BY GROSS
EARNINGS FROM OPERATIONS WITHIN THE STATE.  IN THE ABSENCE OF ADEQUATE
RECORDS, EARNINGS FROM INTERCHANGE OF FREIGHT CARS WERE APPORTIONED TO
MINNESOTA ACCORDING TO A FORMULA.  THE REPORTING ROAD WAS CHARGED WITH
THAT PROPORTION OF THE BALANCE OWING FROM EACH USER OF ITS CARS WHICH
THE USER'S MINNESOTA REVENUE FREIGHT-CAR MILEAGE WAS OF THE USER'S
SYSTEM CAR MILEAGE; AND WAS PERMITTED TO DEDUCT THAT PROPORTION OF THE
BALANCE OWING TO OTHER ROADS FOR USE OF THEIR CARS WHICH ITS MINNESOTA
FREIGHT-CAR MILEAGE WAS OF ITS SYSTEM CAR MILEAGE.  THE NET CREDITS
WERE ASCERTAINED ANNUALLY AND THE TAX IMPOSED THEREON.  AS APPLIED TO A
RAILROAD WHOSE MINNESOTA MILEAGE WAS SMALL COMPARED TO ITS SYSTEM
MILEAGE, AND WHOSE DEDUCTIONS WERE SMALL COMPARED WITH ROADS HAVING
EXTENSIVE MILEAGES WITHIN THE STATE, HELD THAT THE TAX FORMULA WAS
CONSISTENT WITH EQUAL PROTECTION AND DUE PROCESS UNDER THE FOURTEENTH
AMENDMENT AND WITH THE COMMERCE CLAUSE OF THE CONSTITUTION.  PP. 161,
164. 

2.  THE RATIO OF MINNESOTA REVENUE FREIGHT-CAR MILEAGE TO SYSTEM CAR
MILEAGE IS CONSISTENT WITH THE STATUTORY SCHEME OF ASCERTAINING WHAT
PAYMENTS REPRESENT USE IN MINNESOTA.  P. 161. 

3.  THAT THE APPORTIONMENT MAY NOT RESULT IN MATHEMATICAL EXACTITUDE
IS NOT A CONSTITUTIONAL DEFECT.  P. 161. 

4.  OBJECTIONS OF THE COMPLAINANT RAILROAD TO THE VALIDITY OF THE
TAX, THAT BY THE FORMULA IT IS PERMITTED TO DEDUCT ONLY A SMALL
FRACTION OF ITS DEBIT BALANCES COMPARED WITH OTHER ROADS HAVING
EXTENSIVE MILEAGE IN THE STATE, AND THAT THOUGH IT HAS ONLY 30 MILES OF
TRACK IN THE STATE IT MUST PAY A TAX WHILE OTHERS WITH HUNDREDS OF
MILES MAY PAY NONE - EXAMINED AND REJECTED.  PP. 162-163. 

5.  THE FACT THAT THE RAILROADS NOT OWNING OR OPERATING LINES WITHIN
THE STATE ARE NOT TAXED ON THEIR INCOME FROM THE USE OF THEIR CARS
WITHIN THE STATE BY OTHER RAILROADS DOES NOT PRODUCE UNCONSTITUTIONAL
DISCRIMINATION AGAINST ROADS WHICH HAVE SUBJECTED THEMSELVES TO THE
STATE'S JURISDICTION AND ENJOY THE PRIVILEGE OF ENGAGING IN BUSINESS
THERE.  P. 163. 

6.  DOUBLE TAXATION, SHORT OF CONFISCATION OR PROCEEDINGS
UNCONSTITUTIONAL ON OTHER GROUNDS, IS NOT FORBIDDEN BY THE FOURTEENTH
AMENDMENT.  P. 164. 

7. THE TAX HAS A FAIR RELATION TO PROPERTY EMPLOYED WITHIN THE STATE,
ALTHOUGH THE PROPERTY BE USED IN INTERSTATE COMMERCE.  P. 164. 

8.  A RECOMPUTATION BY THE STATE OF TAXES PAYABLE UNDER A STATUTE
WHICH WAS IN FORCE THROUGHOUT THE WHOLE PERIOD IN QUESTION IS NOT SUCH
RETROACTIVITY AS DEPRIVES OF DUE PROCESS OF LAW.  P. 164. 

9.  WHETHER THE CREDITS HERE TAXED ARE INCLUDIBLE AS "GROSS EARNINGS"
WITHIN THE MEANING OF THE STATE STATUTE IS A QUESTION OF LOCAL LAW, IN
RESPECT OF WHICH THIS COURT DEFERS TO THE STATE COURT'S
INTERPRETATION.  P. 165. 

ILLINOIS CENTRAL RAILROAD CO. V. MINNESOTA. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT AGAINST THE RAILROAD COMPANY
IN A SUIT BROUGHT BY THE STATE TO RECOVER ADDITIONAL TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

MINNESOTA IMPOSES ON EVERY RAILROAD COMPANY OWNING OR OPERATING LINES
WITHIN ITS BORDERS A FIVE PER CENT TAX ON GROSS EARNINGS DERIVED FROM
ITS OPERATION WITHIN THE STATE.  THIS TAX, PAYABLE IN LIEU OF ALL OTHER
TAXES,  FN1  HAS BEEN SUSTAINED BY THIS COURT, IN VARIOUS APPLICATIONS,
AS A PROPERTY TAX.  FN2  IN THIS CASE, WHICH IS HERE ON APPEAL (28
U.S.C. SEC. 344A) FROM A JUDGMENT OF THE SUPREME COURT OF MINNESOTA
(205 MINN. 1, 621; 284 N.W. 360; 286 N.W. 359), APPELLANT CONTENDS THAT
THE STATUTE AS CONSTRUED AND APPLIED TO IT VIOLATES THE FOURTEENTH
AMENDMENT AND THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION. 

APPELLANT, AN ILLINOIS RAILROAD CORPORATION, OWNS NO LINES IN
MINNESOTA BUT OPERATES LEASED LINES WITH 30.15 MILES OF TRACKAGE IN
THAT STATE.  FN3  IT OWNS OR OPERATES ABOUT 5,000 MILES IN OTHER
STATES.  THE ITEM OF GROSS EARNINGS WHICH THE STATE SEEKS HERE TO TAX
ARISES OUT OF DEBTS AND CREDITS FOR EXCHANGE OF FREIGHT CARS WHICH
APPELLANT MAKES WITH OTHER RAILROADS, THE USING ROAD BEING CHARGED $1
PER DAY PER CAR.  DURING THE YEARS HERE INVOLVED APPELLANT HAD CREDITS
IN ITS FAVOR FOR SUCH USE OF ITS CARS BY OTHER ROADS OPERATING IN
MINNESOTA OF $17,427,862; AND DEBITS OWING SUCH ROADS OF $14,924,508,
LEAVING A NET CREDIT BALANCE IN FAVOR OF APPELLANT OF $2,503,353. 
THESE DEBITS AND CREDITS REPRESENTED USE OF CARS IN OTHER STATES AS
WELL AS IN MINNESOTA.  IN ABSENCE OF ADEQUATE AND ACCURATE RECORDS
THEIR USE WAS APPORTIONED TO MINNESOTA PURSUANT TO THE FOLLOWING
FORMULA: 

EACH REPORTING ROAD WAS CHARGED WITH SUCH PERCENTAGE OF THE CREDIT
BALANCE OWING FROM EACH USING RAILROAD AS WAS DETERMINED BY
ASCERTAINING THE RATIO OF EACH USING RAILROAD'S MINNESOTA REVENUE
FREIGHT CAR MILES TO ITS SYSTEM CAR MILES. 

EACH REPORTING ROAD WAS GIVEN CREDIT FOR SUCH PERCENTAGE OF THE DEBIT
BALANCE OWING EACH OTHER ROAD AS WAS DETERMINED BY ASCERTAINING THE
RATIO OF THE REPORTING RAILROAD'S MINNESOTA REVENUE FREIGHT CAR MILES
TO ITS SYSTEM CAR MILES. 

THE CREDIT AND DEBIT BALANCES WERE COMPUTED AND APPORTIONED ANNUALLY;
AND THE NET CREDITS WERE THEN ASCERTAINED, TO WHICH THE STATUTORY TAX
OF 5 PER CENT WAS APPLIED. 

THUS FOR THE YEAR 1922 APPELLANT HAD CREDIT BALANCES OF $691,433.97
OWING FROM 13 OTHER ROADS.  THEIR MINNESOTA REVENUE FREIGHT CAR MILES
VARIED FROM 2.3% TO 100% OF THEIR SYSTEM CAR MILES, MAKING MINNESOTA'S
PROPORTION OF THE CREDIT BALANCES $95,359.49.  FOR THE SAME YEAR
APPELLANT HAD DEBIT BALANCES FROM FREIGHT CAR HIRE OWING TO 8 OTHER
ROADS OF $215,863.05.  APPELLANT'S MINNESOTA REVENUE FREIGHT CAR MILES
WERE ONLY 0.11% OF ITS SYSTEM CAR MILES FOR THAT YEAR.  HENCE, IT WAS
PERMITTED TO DEDUCT ONLY 0.11% OF $215,863.05 OR $237.43, LEAVING
$95,122.06 TO WHICH THE TAX WAS APPLICABLE.  ON SIMILAR COMPUTATIONS
FOR EACH OF THE FOLLOWING SEVEN YEARS THE TAX FOR WHICH THE STATE
BROUGHT SUIT TOTALLED $26,414.59. 

APPELLANT'S CONTENTION UNDER THE FOURTEENTH AMENDMENT IS THAT THE
STATUTE AS APPLIED IN THE FOREGOING FORMULA DENIES IT EQUAL PROTECTION
OF THE LAW AND DUE PROCESS.  WE DO NOT THINK THAT CONTENTION IS
TENABLE. 

FIRST AS TO THE CREDIT BALANCES.  THESE REPRESENT PAYMENTS TO
APPELLANT FOR USE OF ITS FREIGHT CARS BY OTHER ROADS WHICH OPERATE IN
MINNESOTA.  MINNESOTA DOES NOT SEEK TO REACH ALL OF THOSE RECEIPTS.  AS
THE STATUTE REACHES ONLY REVENUES DERIVED FROM OPERATIONS IN THE STATE,
THE FORMULA EFFECTS AN APPORTIONMENT.  CERTAINLY THE RATIO OF MINNESOTA
REVENUE FREIGHT CAR MILES TO SYSTEM CAR MILES IS CONSISTENT WITH THE
STATUTORY SCHEME OF ASCERTAINING WHAT PAYMENTS REPRESENT USE IN
MINNESOTA.  THAT THE APPORTIONMENT MAY NOT RESULT IN MATHEMATICAL
EXACTITUDE IS CERTAINLY NOT A CONSTITUTIONAL DEFECT.  FN4  ROUGH
APPROXIMATION RATHER THAN PRECISION IS, AS A PRACTICAL MATTER, THE NORM
IN ANY SUCH TAX SYSTEM.  FN5 

SECOND AS TO THE DEBIT BALANCES.  AS WE HAVE SAID, APPELLANT IS NOT
TAXED ON ALL OF ITS CREDIT BALANCES BUT ONLY ON THAT PORTION WHICH
ACCRUES AS A RESULT OF THE USE OF ITS CARS BY OTHERS IN MINNESOTA. 
HENCE IT IS NOT PERMITTED UNDER THE FORMULA TO DEDUCT ALL OF ITS DEBIT
BALANCES BUT ONLY THE PORTION THEREOF WHICH IT PAYS OTHERS FOR THE USE
OF THEIR CARS IN MINNESOTA.  CERTAINLY IF APPELLANT RECEIVES $50,000
FROM ONE ROAD FOR USE OF APPELLANT'S CARS IN MINNESOTA AND PAYS ANOTHER
ROAD $50,000 FOR APPELLANT'S USE OF THAT ROAD'S CARS OUTSIDE OF
MINNESOTA, IT CANNOT REALISTICALLY BE SAID THAT NO PART OF THE $50,000
RECEIVED BY APPELLANT HAS A MINNESOTA ORIGIN.  ON THE CONTRARY, THE
WHOLE $50,000 PAID APPELLANT DERIVES FROM USE OF ITS CARS IN
MINNESOTA.  FOR MINNESOTA THEN TO LAY A TAX ON THE WHOLE AMOUNT (AS IT
DOES UNDER THIS FORMULA) IS TO EXERCISE A JURISDICTION WHICH
CONSTITUTIONALLY IS HERS.  SIMILARLY TO PERMIT UNDER THE FORMULA A
DEDUCTION OF ONLY THOSE DEBIT BALANCES OWING BY VIRTUE OF THE USE BY
APPELLANT IN MINNESOTA OF CARS OF OTHER ROADS RESULTS IN DETERMINING A
NET CREDIT BALANCE FOR ITS MINNESOTA ACTIVITY OF RENTING OUT AND
BORROWING FREIGHT CARS.  TO HOLD THAT THAT NET CANNOT CONSTITUTIONALLY
BE TAXED BY MINNESOTA BUT MUST BE REDUCED BY THE AMOUNT OF PAYMENTS
MADE BY APPELLANT FOR ITS USE OF CARS IN OTHER STATES WOULD BE TO
DEPRIVE MINNESOTA OF HER JURISDICTION OVER PROPERTY WITHIN HER
BORDERS.  FN6 FOR AS APPELLANT'S CARS MOVE OVER TRACKS OF OTHER ROADS
IN MINNESOTA AND AS CARS OF OTHER ROADS MOVE OVER ITS TRACKS IN
MINNESOTA, CERTAIN CREDITS AND DEBITS ACCRUE.  TO SAY THAT THE
RESULTANT NET CREDIT BALANCE DOES NOT DERIVE WHOLLY FROM OPERATIONS
WITHIN MINNESOTA IS TO DENY THE FACT. 

BUT THE NUB OF APPELLANT'S OBJECTION SEEMS TO REST ON THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  MOST OF ITS CONTENTIONS
COME BACK TO THE POINT THAT IT HAS ONLY 30 ODD MILES OF TRACKS IN THE
STATE.  ON THIS PHASE, APPELLANT MAKES TWO POINTS.  FIRST, AS COMPARED
WITH OTHER ROADS HAVING EXTENSIVE MILEAGE IN MINNESOTA, IT IS PERMITTED
TO DEDUCT ONLY A SMALL FRACTION (BETWEEN 0.1% AND 0.13%) OF ITS DEBIT
BALANCES.  SECOND, IT IS PENALIZED FOR HAVING NOMINAL TRACKAGE IN
MINNESOTA, FOR ROADS WITH NO TRACKAGE IN THE STATE PAY NO TAX ON THESE
ITEMS THOUGH THEY MAY HAVE SUBSTANTIAL REVENUES FROM RENTALS OF CARS
FOR USE IN MINNESOTA. 

WE HAVE IN SUBSTANCE ALREADY DEALT WITH THE FIRST OF THESE
CONTENTIONS.  ALL ROADS OPERATING IN MINNESOTA ARE TAXED ON PRECISELY
THE SAME, NOT ON DIFFERENT BASES.  SO FAR AS THE PRESENT INCIDENCE OF
THE STATUTE IS CONCERNED, THE TAX IS LAID ON THE NET CREDIT BALANCES
FROM THE BUSINESS OF RENTING AND BORROWING CARS USED IN MINNESOTA.  THE
FACT THAT APPELLANT RECEIVES A LARGER NET THAN OTHERS FROM ITS
MINNESOTA ACTIVITY OF RENTING AND BORROWING CARS AND HENCE MUST PAY A
LARGER TAX DOES NOT MEAN THAT MINNESOTA HAS OVERSTEPPED HER
CONSTITUTIONAL BOUNDS.  APPELLANT IS NOT SINGLED OUT FOR SPECIAL
TREATMENT.  FN7  IT IS NOT TAXED ON ONE FORMULA; THE OTHERS, ON
ANOTHER.  THEY ARE ALL TAXED PURSUANT TO THE SAME FORMULA; AND THE
FORMULA IS ADAPTED TO ASCERTAINMENT OF VALUE OF PROPERTY SITUATED IN
MINNESOTA.  AND APPELLANT'S CONTENTION THAT THE TAX IS DISCRIMINATORY
BECAUSE IT HAS ONLY 30 MILES OF TRACK YET MUST PAY A TAX, WHILE OTHERS
WITH HUNDREDS OF MILES MAY PAY NONE, IS BESIDE THE POINT.  THE BUSINESS
TAXED IS NOT ADEQUATELY MEASURED BY TRACKAGE ALONE.  THOUGH APPELLANT
HAS BUT FEW MILES OF TRACK IN THE STATE, NEVERTHELESS ITS CARS ARE
CONSTANTLY MOVING OVER OTHER LINES IN MINNESOTA.  THAT PRODUCES
REVENUE.  A TAX ON THAT REVENUE CERTAINLY BEARS A CLOSE RELATIONSHIP TO
APPELLANT'S PROPERTY IN THE STATE WHICH NO COMPUTATION BASED ON
TRACKAGE CAN ALTER. 

AS TO APPELLANT'S SECOND OBJECTION UNDER THIS HEAD, LITTLE NEED BE
SAID.  COMPANIES NOT OWNING OR OPERATING ROADS WITHIN THE STATE ARE NOT
REACHED BY THIS TAX STATUTE; ROADS THAT DO, ARE.  THAT CERTAINLY IS NOT
DISCRIMINATION IN THE CONSTITUTIONAL SENSE.  APPELLANT HAS SUBJECTED
ITSELF TO THE JURISDICTION OF MINNESOTA.  THOSE DOING LIKEWISE ARE
SIMILARLY TREATED BY THE STATE, AS ARE DOMESTIC COMPANIES ENGAGED IN
THAT BUSINESS.  THE FACT THAT THAT ENTAILS BURDENS IS A PART OF THE
PRICE FOR ENJOYMENT OF THE PRIVILEGES WHICH MINNESOTA EXTENDS.  FN8 

APPELLANT MAKES SOME POINT OF DOUBLE TAXATION.  BUT THE FLAW IN THAT
ARGUMENT IS EXPOSED BY THE FAMILIAR DOCTRINE, APTLY PHRASED BY MR.
JUSTICE HOLMES, THAT THE "FOURTEENTH AMENDMENT NO MORE FORBIDS DOUBLE
TAXATION THAN IT DOES DOUBLING THE AMOUNT OF A TAX; SHORT OF
CONFISCATION OR PROCEEDINGS UNCONSTITUTIONAL ON OTHER GROUNDS."  FN9 

APPELLANT'S CONSTITUTIONAL OBJECTION BASED ON THE COMMERCE CLAUSE HAS
BEEN ADEQUATELY ANSWERED IN THE PRIOR DECISIONS OF THIS COURT
SUSTAINING OTHER TAXES LEVIED UNDER THIS STATUTE.  FN10  THE RIGHT OF A
STATE TO TAX PROPERTY, ALTHOUGH IT IS USED IN INTERSTATE COMMERCE, IS
WELL SETTLED.  AND CERTAINLY IF SUCH TAX HAS A FAIR RELATION TO THE
PROPERTY EMPLOYED IN THE STATE (AS THIS TAX CLEARLY DOES) IT CANNOT BE
SAID TO RUN AFOUL OF THE PROHIBITION AGAINST STATE TAXATION ON
INTERSTATE COMMERCE.  AS CHIEF JUSTICE FULLER ONCE SAID ON THAT POINT,
"  ...  BY WHATEVER NAME THE EXACTION MAY BE CALLED, IF IT AMOUNTS TO
NO MORE THAN THE ORDINARY TAX UPON PROPERTY OR A JUST EQUIVALENT
THEREFOR, ASCERTAINED BY REFERENCE THERETO, IT IS NOT OPEN TO ATTACK AS
INCONSISTENT WITH THE CONSTITUTION."  FN11 

AS TO APPELLANT'S CLAIM OF RETROACTIVITY, LITTLE NEED BE SAID.  WE
HAVE HERE AT MOST A MERE RECOMPUTATION BY THE STATE OF TAXES PAYABLE
UNDER A STATUTE WHICH WAS EXISTENT THROUGHOUT THE WHOLE PERIOD IN
QUESTION.  NEGLECT OF ADMINISTRATIVE OFFICIALS, MISUNDERSTANDING OF THE
LAW, LACK OF ADEQUATE MACHINERY, HAVE NEVER BEEN CONSTITUTIONAL
BARRIERS TO A STATE REACHING BACKWARD FOR TAXES.  FN12  HENCE THE CASE
FALLS FAR SHORT OF TYPES OF RETROACTIVE TAX LEGISLATION WHICH HAVE
REPEATEDLY BEEN SUSTAINED BY THIS COURT,  FN13  IN RECOGNITION OF THE
PRINCIPLE THAT LIABILITY FOR RETROACTIVE TAXES IS "ONE OF THE NOTORIOUS
INCIDENTS OF SOCIAL LIFE."  FN14  CERTAINLY WHERE OPPORTUNITY TO BE
HEARD IS AFFORDED, AS HERE, THERE CAN BE NO COMPLAINT FOR LACK OF DUE
PROCESS OF LAW.  FN15 

IN CONCLUSION, APPELLANT CONTENDS THAT THE SUPREME COURT OF MINNESOTA
ERRED IN HOLDING THAT THE CREDITS HERE TAXED ARE "GROSS EARNINGS"
WITHIN THE MEANING OF THE STATUTE.  BUT ON SUCH MATTERS OF CONSTRUCTION
WE DEFER TO THE STATE COURT'S INTERPRETATION.  FN16  AFFIRMED. 

FN1  SEC. 2246, MASON'S MINN. STATS. 1927, PROVIDES IN PART: 

"EVERY RAILROAD COMPANY OWNING OR OPERATING ANY LINE OF RAILROAD
SITUATED WITHIN OR PARTLY WITHIN THIS STATE, SHALL, DURING THE YEAR
1913 AND ANNUALLY THEREAFTER, PAY INTO THE TREASURY OF THE STATE, IN
LIEU OF ALL TAXES, UPON ALL PROPERTY WITHIN THIS STATE OWNED OR
OPERATED FOR RAILWAY PURPOSES, BY SUCH COMPANY, INCLUDING EQUIPMENT,
APPURTENANCES, APPENDAGES AND FRANCHISES THEREOF, A SUM OF MONEY EQUAL
TO FIVE PER CENT OF THE GROSS EARNINGS DERIVED FROM THE OPERATION OF
SUCH LINE OF RAILWAY WITHIN THIS STATE." 

SEC. 2247 DEFINES "GROSS EARNINGS" AS FOLLOWS: 

"THE TERM 'THE GROSS EARNINGS DERIVED FROM THE OPERATION OF SUCH LINE
OF RAILWAY WITHIN THIS STATE,' AS USED IN SECTION 1 OF THIS ACT IS
HEREBY DECLARED AND SHALL BE CONSTRUED TO MEAN, ALL EARNINGS ON
BUSINESS BEGINNING AND ENDING WITHIN THE STATE, AND A PROPORTION, BASED
UPON THE PROPORTION OF THE MILEAGE WITHIN THE STATE TO THE ENTIRE
MILEAGE OVER WHICH SUCH BUSINESS IS DONE, OF EARNINGS ON ALL INTERSTATE
BUSINESS PASSING THROUGH, INTO OR OUT OF THE STATE." 

FN2  GREAT NORTHERN RY. CO. V. MINNESOTA, 278 U.S. 503; CUDAHY PACKING
CO. V. MINNESOTA, 246 U.S. 450; UNITED STATES EXPRESS CO. V. MINNESOTA,
223 U.S. 335. 

FN3  THESE ARE OPERATED UNDER A 47 YEAR LEASE BEGINNING JULY 1, 1904,
FROM THE DUBUQUE & SIOUX CITY RAILROAD CO. 

FN4  CF. ROWLEY V. CHICAGO & NORTHWESTERN RY. CO., 293 U.S. 102,
109. 

FN5  CF. DANE V. JACKSON, 256 U.S. 589, 598-599. 

FN6  SEE POSTAL TELEGRAPH CABLE CO. V. ADAMS, 155 U.S. 688, 696. 

FN7  SEE SOUTHERN RAILWAY CO. V. WATTS, 260 U.S. 519; AMERICAN SUGAR
REFINING CO. V. LOUISIANA, 179 U.S. 89. 

FN8  SEE ATLANTIC REFINING CO. V. VIRGINIA, 302 U.S. 22, 31. 

FN9  FT. SMITH LUMBER CO. V. ARKANSAS, 251 U.S. 532, 533. 

FN10  GREAT NORTHERN RY. CO. V. MINNESOTA; CUDAHY PACKING CO. V.
MINNESOTA; AND UNITED STATES EXPRESS CO. V. MINNESOTA, SUPRA, NOTE 2. 

FN11  POSTAL TELEGRAPH CABLE CO. V. ADAMS, SUPRA NOTE 6, P. 697. 

FN12  FLORIDA CENTRAL & PENINSULAR R.R. CO. V. REYNOLDS, 183 U.S.
471; WHITE RIVER LUMBER CO. V. ARKANSAS, 279 U.S. 692. 

FN13  SEATTLE V. KELLEHER, 195 U.S. 351; WAGNER V. BALTIMORE, 239
U.S. 207. 

FN14  SEATTLE V. KELLEHER, SUPRA NOTE 13, P. 360; LEAGUE V. TEXAS,
184 U.S. 156. 

FN15  KENTUCKY UNION CO. V. KENTUCKY, 219 U.S. 140, 154. 

FN16  CHICAGO THEOLOGICAL SEMINARY V. ILLINOIS, 188 U.S. 662, 674;
STORAASLI V. MINNESOTA, 283 U.S. 57, 62. 
..END :













MILLER V. HATFIELD, 309 U.S. 1 


NO. 237.  ARGUED JANUARY 5, 1940.  - DECIDED JANUARY 15, 1940.  - 101
F.2D 748, REVERSED. 


UPON FINDING THAT A NECESSARY PARTY TO AN APPEAL IS ABSENT, THE
CIRCUIT COURT OF APPEALS SHOULD SUSTAIN A MOTION OF THE APPELLANT FOR A
CITATION TO BRING HIM IN, NOT DISMISS THE APPEAL. 

MILLER V. HATFIELD, TRUSTEE IN FARMER DEBTOR BANKRUPTCY, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

PER CURIAM. 

THIS PROCEEDING WAS INSTITUTED BY A FARMER-DEBTOR PURSUANT TO SEC. 75
OF THE BANKRUPTCY ACT.  UNDER AN ORDER OF THE DISTRICT COURT, APPROVING
AN ORDER OF THE CONCILIATION COMMISSIONER, PETITIONER'S FARM WAS SOLD
TO ONE OF THE COTRUSTEES OF A MORTGAGE UPON THE PROPERTY AND THE SALE
WAS CONFIRMED BY THE DISTRICT COURT. 

A PETITION FOR REHEARING WAS DENIED.  UPON APPEAL TO THE CIRCUIT
COURT OF APPEALS, THAT COURT FOUND THAT THE PURCHASER AT THE SALE WAS
NOT A PARTY TO THE APPEAL AND DISMISSED IT.  PETITIONER SOUGHT A
REHEARING UPON THE GROUND THAT THE PURCHASER HAD ACTUAL NOTICE OF THE
APPEAL AND HAD APPEARED IN THE COURT OF APPEALS JOINING IN AN OBJECTION
TO AN ENLARGEMENT OF TIME FOR FILING THE RECORD AND ALSO SEEKING
APPOINTMENT OF A RECEIVER OR AN ADDITIONAL SUPERSEDEAS BOND. 
PETITIONER ALSO ASKED THAT IF IT BE CONSIDERED THAT THE PURCHASER WAS
NOT ALREADY BEFORE THE COURT, A CITATION SHOULD BE ISSUED TO BRING HIM
IN.  THE COURT OF APPEALS DENIED BOTH APPLICATIONS.  CERTIORARI WAS
GRANTED, 308 U.S. 534. 

WE ARE OF THE OPINION THAT THE ACTION OF THE COURT OF APPEALS WAS
ERRONEOUS.  IF THE COURT DEEMED THE PURCHASER TO BE A NECESSARY PARTY
AND NOT BEFORE THE COURT, THE MOTION TO ISSUE A CITATION TO HIM SHOULD
HAVE BEEN GRANTED.  R.S. 954, 28 U.S.C. 777.  DODGE V. KNOWLES, 114
U.S. 430, 438; KNICKERBOCKER LIFE INSURANCE CO. V. PENDLETON, 115 U.S.
339; IN RE KNOX-POWELL-STOCKTON CO., 97 F.2D 61. 

THE DECREE IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT COURT
OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 
..END :








MCGOLDRICK V. GULF OIL CORP., 309 U.S. 2 


NO. 473.  ARGUED JANUARY 2, 3, 1940.  - DECIDED JANUARY 15, 1940. 


JURISDICTION TO REVIEW THE JUDGMENT OF A STATE COURT CAN NOT BE
ENTERTAINED IF IT DOES NOT AFFIRMATIVELY APPEAR THAT THE DECISION DID
NOT REST UPON AN ADEQUATE NON-FEDERAL GROUND. 

MCGOLDRICK, COMPTROLLER OF THE CITY OF NEW YORK, V. GULF OIL CORP.* 

*REHEARING GRANTED, FEB. 5, 1940, SEE POST, P. 692. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK.  CERTIORARI, 308 U.S.
545, TO REVIEW 281 N.Y. 647; 22 N.E.2D 480, DISMISSED. 

PER CURIAM. 

THE CITY OF NEW YORK, THROUGH ITS COMPTROLLER, ASSESSED A TAX AGAINST
RESPONDENT WITH RESPECT TO SALES OF OIL MANUFACTURED IN THAT CITY IN A
BONDED MANUFACTURING WAREHOUSE, CLASS 6, ESTABLISHED PURSUANT TO THE
CUSTOMS LAWS OF THE UNITED STATES, THE CRUDE OIL HAVING BEEN IMPORTED
FROM VENEZUELA AND THE SALES OF THE MANUFACTURED OIL HAVING BEEN MADE
TO SUPPLY FUEL TO VESSELS ENGAGED EXCLUSIVELY IN FOREIGN COMMERCE.  THE
APPELLATE DIVISION, FIRST DEPARTMENT, ANNULLED THE DETERMINATION OF THE
COMPTROLLER CONSIDERING THE TAX TO BE A BURDEN UPON FOREIGN COMMERCE. 
256 APP. DIV. 207.  THE COURT OF APPEALS AFFIRMED THE ORDER OF THE
APPELLATE DIVISION, WITHOUT OPINION.  281 N.Y. 647.  CERTIORARI WAS
GRANTED, 308 U.S. 545. 

IN THE ABSENCE OF AN EXPLICIT STATEMENT BY THE COURT OF APPEALS THAT
IT ANNULLED THE ASSESSMENT OF THE TAX SOLELY BECAUSE OF VIOLATION OF
THE FEDERAL CONSTITUTION, WE ARE UNABLE TO FIND THAT THE DECISION OF
THE HIGHEST COURT OF THE STATE DID NOT REST UPON AN ADEQUATE NON
FEDERAL GROUND.  JUD.  CODE, SEC. 237(B), 28 U.S.C. 344(B).  LYNCH V.
NEW YORK, 293 U.S. 52; HONEYMAN V. HANAN, 300 U.S. 14; NEW YORK CITY V.
CENTRAL SAVINGS BANK, 306 U.S. 661. 

THE WRIT OF CERTIORARI IS DISMISSED FOR THE WANT OF JURISDICTION. 
DISMISSED. 
..END :












REAL ESTATE TITLE CO. V. U.S., 309 U.S. 13 


NO. 229.  ARGUED JANUARY 5, 1940.  - DECIDED JANUARY 15, 1940.  - 102
F.2D 582, AFFIRMED. 


UNDER THE REVENUE ACT OF 1928, SEC. 23(K), AND TREASURY REGULATIONS
74, ART. 206, A DEDUCTION FOR OBSOLESCENCE IS NOT ALLOWED FOR A PLANT
WHICH HAS NOT FUNCTIONALLY DEPRECIATED BUT WHICH IS A NEEDLESS
DUPLICATION ACQUIRED IN A VOLUNTARY BUSINESS CONSOLIDATION, AND WHICH
THE MANAGEMENT DESIRES TO ELIMINATE, PREFERRING ANOTHER WHICH IS ALSO
ADEQUATE BUT WHICH CAN BE OPERATED WITH FEWER EMPLOYEES.  PP. 15-17. 

REAL ESTATE-LAND TITLE & TRUST CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 308 U.S. 539, TO REVIEW A JUDGMENT REVERSING A JUDGMENT
RECOVERED IN THE DISTRICT COURT IN A SUIT FOR A REFUND OF INCOME
TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A PENNSYLVANIA CORPORATION, WAS FORMED IN OCTOBER 1927 AS
A RESULT OF A STATUTORY CONSOLIDATION OR MERGER OF THREE COMPANIES. 
TWO OF THE CONSTITUENT COMPANIES OWNED TITLE SEARCH PLANTS WHICH WERE
AMONG THE ASSETS ACQUIRED BY PETITIONER AS A RESULT OF THE
CONSOLIDATION.  WHILE IT WAS KNOWN THAT TWO TITLE PLANTS WOULD BE
ACQUIRED ON THE CONSOLIDATION, THERE WAS AT THAT TIME NO DEFINITE PLAN
FOR THEIR DISPOSITION.  BUT AN IMMEDIATE INVESTIGATION WAS MADE AND IT
WAS DECIDED TO STORE ONE OF THE PLANTS IN ORDER TO EFFECT ECONOMIES OF
OPERATION.  THAT WAS DONE SUBSTANTIALLY SIMULTANEOUSLY WITH THE
CONSUMMATION OF THE CONSOLIDATION.  ABOUT TWO MONTHS THEREAFTER IT WAS
DECIDED THAT THE PLANT RETAINED IN USE WAS ADEQUATE AND THAT THE ONE IN
STORAGE WOULD NOT BE NEEDED.  ALTHOUGH FOR A BRIEF PERIOD SOME SLIGHT
USE APPEARS TO HAVE BEEN MADE OF THE STORED PLANT,  FN1  IT WAS NOT
KEPT UP TO DATE BY THE ADDITION OF CURRENT RECORDINGS.  AS A RESULT IT
HAD ONLY A SALVAGE VALUE BY OCTOBER 31, 1928.  MEANWHILE, NEGOTIATIONS
FOR ITS SALE HAD BEEN UNSUCCESSFUL. 

IN THIS ACTION PETITIONER SEEKS A REFUND OF INCOME TAXES FOR THE
FISCAL YEAR ENDED OCTOBER 31, 1928, BASED ON THE REFUSAL OF THE
COLLECTOR OF INTERNAL REVENUE TO ALLOW A DEDUCTION FOR OBSOLESCENCE OF
THIS PLANT.  IT HAD BEEN CARRIED ON THE BOOKS OF THE CONSTITUENT
COMPANY AT $275,000 AND WAS BROUGHT INTO THE CONSOLIDATION AT
$800,000.  THE DISTRICT COURT, HOWEVER, FOUND THAT ITS VALUE ON MARCH
1, 1913, WAS $1,000,000; ON OCTOBER 31, 1928, $125,000 - MAKING AN
ACTUAL LOSS OF $875,000, WHICH THAT COURT ALLOWED AS A DEDUCTION FOR
OBSOLESCENCE FOR THE TAXABLE YEAR 1928.  IT ACCORDINGLY ALLOWED A
REFUND.  THAT JUDGMENT WAS REVERSED BY THE CIRCUIT COURT OF APPEALS
(102 F.2D 582).  WE GRANTED CERTIORARI BECAUSE OF THE ASSERTED CONFLICT
OF THAT DECISION WITH CROOKS V. KANSAS CITY TITLE & TRUST CO., 46 F.2D
928. 

SEC. 23(K) OF THE REVENUE ACT OF 1928(45 STAT. 791) ALLOWS AS A
DEDUCTION FROM GROSS INCOME A "REASONABLE ALLOWANCE FOR THE EXHAUSTION,
WEAR AND TEAR OF PROPERTY USED IN THE TRADE OR BUSINESS, INCLUDING A
REASONABLE ALLOWANCE FOR OBSOLESCENCE."  ADMITTEDLY, IF THE DEDUCTION
IS ALLOWED UNDER THIS PROVISION IT MUST BE FOR OBSOLESCENCE, AS THERE
HAS BEEN NO EXHAUSTION, WEAR OR TEAR OF THE TITLE PLANT WITHIN THE
MEANING OF THE ACT.  NOW IT IS TRUE THAT IN THE POPULAR SENSE A THING
WHICH IS OBSOLETE IS ONE WHICH IS NO LONGER USED, A MEANING WHICH GIVES
COLOR TO PETITIONER'S CLAIM FOR DEDUCTION SINCE THERE IS NO QUESTION
THAT THE TITLE PLANT HERE INVOLVED IS NO LONGER UTILIZED TO ANY DEGREE
WHATSOEVER.  BUT THE TERM "ALLOWANCE FOR OBSOLESCENCE," AS USED IN THE
ACT AND IN THE TREASURY REGULATIONS, HAS A NARROWER OR MORE TECHNICAL
MEANING THAN THAT DERIVED FROM THE COMMON, DICTIONARY DEFINITION OF
OBSOLETE.  THE TREASURY REGULATIONS  FN2  STATE THE CIRCUMSTANCES UNDER
WHICH AN ALLOWANCE FOR OBSOLESCENCE OF PHYSICAL PROPERTY MAY BE
ALLOWED, VIZ, WHERE SUCH PROPERTY IS "BEING EFFECTED BY ECONOMIC
CONDITIONS THAT WILL RESULT IN ITS BEING ABANDONED AT A FUTURE DATE
PRIOR TO THE END OF ITS NORMAL USEFUL LIFE, SO THAT DEPRECIATION
DEDUCTIONS ALONE ARE INSUFFICIENT TO RETURN THE COST (OR OTHER BASIS)
AT THE END OF ITS ECONOMIC TERM OF USEFULNESS."  THIS COURT, WITHOUT
UNDERTAKING A COMPREHENSIVE DEFINITION, HAS HELD THAT OBSOLESCENCE FOR
PURPOSES OF THE REVENUE ACTS "MAY ARISE FROM CHANGES IN THE ART,
SHIFTING OF BUSINESS CENTERS, LOSS OF TRADE, INADEQUACY, SUPERSESSION,
PROHIBITORY LAWS AND OTHER THINGS WHICH, APART FROM PHYSICAL
DETERIORATION, OPERATE TO CAUSE PLANT ELEMENTS OR THE PLANT AS A WHOLE
TO SUFFER DIMINUTION IN VALUE."  UNITED STATES CARTRIDGE CO. V. UNITED
STATES, 284 U.S. 511, 516.  SEE ALSO BURNET V. NIAGARA FALLS BREWING
CO., 282 U.S. 648, 654.  SUCH SPECIFIC EXAMPLES ILLUSTRATE THE TYPE OF
"ECONOMIC CONDITIONS" WHOSE EFFECT ON PHYSICAL PROPERTY IS RECOGNIZED
AS OBSOLESCENCE BY THE TREASURY REGULATIONS.  OTHERS COULD BE MENTIONED
WHICH SIMILARLY CAUSE OR CONTRIBUTE TO THE RELENTLESS MARCH OF PHYSICAL
PROPERTY TO THE JUNK PILE.  BUT IN GENERAL, OBSOLESCENCE UNDER THE ACT
CONNOTES FUNCTIONAL DEPRECIATION, AS IT DOES IN ACCOUNTING AND
ENGINEERING TERMINOLOGY.  FN3 MORE THAN NON-USE OR DISUSE IS NECESSARY
TO ESTABLISH IT.  FN4  TO BE SURE, REASONS OF ECONOMY MAY CAUSE A
MANAGEMENT TO DISCARD A TITLE PLANT EITHER WHERE IT HAS BECOME OUTMODED
BY IMPROVED DEVICES OR WHERE IT IS ACQUIRED AS A DUPLICATE AND
THEREFORE IS USELESS.  BUT NOT EVERY DECISION OF MANAGEMENT TO ABANDON
FACILITIES OR TO DISCONTINUE THEIR USE GIVES RISE TO A CLAIM FOR
OBSOLESCENCE.  FOR OBSOLESCENCE UNDER THE ACT REQUIRES THAT THE
OPERATIVE CAUSE OF THE PRESENT OR GROWING USELESSNESS ARISE FROM
EXTERNAL FORCES WHICH MAKE IT DESIRABLE OR IMPERATIVE THAT THE PROPERTY
BE REPLACED.  WHAT THOSE OPERATIVE CAUSES MAY BE WILL BE DEPENDENT ON A
WIDE VARIETY OF FACTUAL SITUATIONS.  "NEW AND MODERN METHODS" APPEAR TO
HAVE BEEN ONE OF THE REAL CAUSES OF ABANDONMENT OF THE TITLE PLANT IN
CROOKS V. KANSAS CITY TITLE & TRUST CO., SUPRA.  SUFFICE IT HERE TO SAY
THAT NO SUCH EXTERNAL CAUSES ARE PRESENT, FOR THE RECORD SHOWS LITTLE
MORE THAN THE DESIRE OF A MANAGEMENT TO ELIMINATE ONE PLANT WHICH WAS A
NEEDLESS DUPLICATION OF ANOTHER BUT WHICH FUNCTIONALLY WAS ADEQUATE. 
FN5  THE FACT THAT FEWER EMPLOYEES WERE REQUIRED TO OPERATE THE ONE
RETAINED THAN THE ONE DISCARDED IS INCONCLUSIVE HERE.  FOR THIS IS NOT
THE CASE OF ACQUISITION OF A NEW PLANT TO TAKE THE PLACE OF ONE
OUTMODED OR LESS EFFICIENT.  RATHER THE CONCLUSION IS IRRESISTIBLE THAT
THE PLANT WAS DISCARDED ONLY AS A PROXIMATE RESULT OF PETITIONER'S
VOLUNTARY ACTION IN ACQUIRING EXCESS CAPACITY. 

IN VIEW OF THIS CONCLUSION, WE DO NOT REACH RESPONDENT'S FURTHER
OBJECTIONS TO ALLOWANCE OF THIS CLAIM ON GROUNDS OF OBSOLESCENCE. 

BUT PETITIONER CONTENDS THAT IN ANY EVENT IT HAS ABANDONED THE PLANT
AND HENCE IS ENTITLED TO A DEDUCTION UNDER SEC. 23(F) OF THE 1928 ACT
WHICH ALLOWS A CORPORATION TO DEDUCT "LOSSES SUSTAINED DURING THE
TAXABLE YEAR AND NOT COMPENSATED FOR BY INSURANCE OR OTHERWISE." 
WHETHER PETITIONER HAS SATISFIED THOSE REQUIREMENTS WE DO NOT DECIDE,
FOR ITS CLAIM FOR REFUND WAS BASED EXCLUSIVELY AND SOLELY ON THE GROUND
THAT IT WAS ENTITLED TO AN ALLOWANCE FOR OBSOLESCENCE.  HENCE, IN
ABSENCE OF A WAIVER BY THE GOVERNMENT, TUCKER V. ALEXANDER, 275 U.S.
228, OR A PROPER AMENDMENT, PETITIONER IS PRECLUDED IN THIS SUIT FROM
RESTING ITS CLAIM ON ANOTHER GROUND.  UNITED STATES V. FELT & TARRANT
MFG. CO., 283 U.S. 269.  THERE HAS BEEN NO AMENDMENT AND THERE ARE NO
FACTS ESTABLISHING A WAIVER. 

ACCORDINGLY, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS
AFFIRMED. 

FN1  EVIDENCE OF USE SUBSEQUENT TO THE CONSOLIDATION OR MERGER IS
QUITE TENUOUS, THE ONLY SPECIFIC INSTANCES OCCURRING IMMEDIATELY PRIOR
TO THE ACTUAL CONSUMMATION OF THE CONSOLIDATION ON OCTOBER 31, 1927. 

FN2  TREASURY REGULATIONS 74, ART. 206, PROMULGATED UNDER THE REVENUE
ACT OF 1928, PROVIDES IN FULL: 

"WITH RESPECT TO PHYSICAL PROPERTY THE WHOLE OR ANY PORTION OF WHICH
IS CLEARLY SHOWN BY THE TAXPAYER AS BEING AFFECTED BY ECONOMIC
CONDITIONS THAT WILL RESULT IN ITS BEING ABANDONED AT A FUTURE DATE
PRIOR TO THE END OF ITS NORMAL USEFUL LIFE, SO THAT DEPRECIATION
DEDUCTIONS ALONE ARE INSUFFICIENT TO RETURN THE COST (OR OTHER BASIS)
AT THE END OF ITS ECONOMIC TERM OF USEFULNESS, A REASONABLE DEDUCTION
FOR OBSOLESCENCE, IN ADDITION TO DEPRECIATION, MAY BE ALLOWED IN
ACCORDANCE WITH THE FACTS OBTAINING WITH RESPECT TO EACH ITEM OF
PROPERTY CONCERNING WHICH A CLAIM FOR OBSOLESCENCE IS MADE.  NO
DEDUCTION FOR OBSOLESCENCE WILL BE PERMITTED MERELY BECAUSE, IN THE
OPINION OF A TAXPAYER, THE PROPERTY MAY BECOME OBSOLETE AT SOME LATER
DATE.  THIS ALLOWANCE WILL BE CONFINED TO SUCH PORTION OF THE PROPERTY
ON WHICH OBSOLESCENCE IS DEFINITELY SHOWN TO BE SUSTAINED AND CAN NOT
BE HELD APPLICABLE TO AN ENTIRE PROPERTY UNLESS ALL PORTIONS THEREOF
ARE AFFECTED BY THE CONDITIONS TO WHICH OBSOLESCENCE IS FOUND TO BE
DUE."  SEE ALSO BUREAU OF INTERNAL REVENUE BULLETIN "F," JANUARY,
1931. 

FN3  KESTER, ADVANCED ACCOUNTING (3RD ED. 1933) CH. 10; HATFIELD,
ACCOUNTING (1927) CH. V; SALIERS, DEPRECIATION PRINCIPLES AND
APPLICATIONS (3RD ED. 1939) CH. 4; KESTER, DEPRECIATION (1924);
TRANSACTIONS, AMER.  SOC.  C.E., VOL. 81, P. 1527(1917); MARSTON & AGG,
ENGINEERING VALUATION (1936) PP. 83-85. 

FN4  2 PAUL & MERTENS, LAW OF FEDERAL INCOME TAXATION, SEC. 20.114. 

FN5  ACCORDING TO PETITIONER'S OWN WITNESSES, THE DISCARDED PLANT WAS
A "MORE COMPLETE PLANT THAN ANY OTHER PLANT IN THE CITY"; AND IT HAD A
"BACKGROUND WHICH WENT ALL THE WAY BACK TO WILLIAM PENN." 

MR. JUSTICE ROBERTS AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :
















HIGGINS V. SMITH, 308 U.S. 473 


NO. 146.  ARGUED DECEMBER 5, 1939.  - DECIDED JANUARY 8, 1940.  - 102
F.2D 456, REVERSED. 


1.  UNDER SEC. 23(E) OF THE REVENUE ACT OF 1932, AUTHORIZING IN THE
COMPUTATION OF INCOME TAX DEDUCTIONS FOR LOSSES SUSTAINED DURING THE
TAXABLE YEAR, NO DEDUCTIBLE LOSS OCCURS UPON A SALE BY THE TAXPAYER TO
A CORPORATION WHOLLY OWNED BY HIM.  P. 476. 

2.  THE CONTENTION THAT THIS CONCLUSION IS INCONSISTENT WITH PRIOR
INTERPRETATIONS OF THE INCOME TAX LAWS AND UNFAIR TO THE TAXPAYER -
EXAMINED AND REJECTED.  P. 478. 

3.  FROM THE FACT THAT SEC. 24(A)(6) OF THE REVENUE ACT OF 1934
PROVIDES EXPLICITLY THAT LOSSES DETERMINED BY SALES TO CORPORATIONS
CONTROLLED BY THE TAXPAYER ARE NOT DEDUCTIBLE, IT DOES NOT FOLLOW THAT
THE LAW FORMERLY WAS OTHERWISE.  P. 479. 

4.  CLAIMS OF ERROR PREJUDICIAL TO THE TAXPAYER, ARISING OUT OF THE
DISTRICT COURT'S RULINGS ON EVIDENCE IN THIS CASE, HELD WITHOUT MERIT. 
P. 480. 

HIGGINS, COLLECTOR OF INTERNAL REVENUE, V. SMITH. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 536, TO REVIEW THE REVERSAL, ON CROSS-APPEALS,
OF A JUDGMENT IN A SUIT BROUGHT BY A TAXPAYER FOR REFUND OF A SUM PAID
AS INCOME TAXES. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS ALLOWED  FN1  FROM THE JUDGMENT OF THE CIRCUIT COURT
OF APPEALS FOR THE SECOND CIRCUIT  FN2  ON ACCOUNT OF AN ASSERTED
CONFLICT BETWEEN THE DECISION BELOW AND THAT OF THE CIRCUIT COURT OF
APPEALS FOR THE SEVENTH CIRCUIT IN COMMISSIONER V. GRIFFITHS.  FN3 

THE ISSUE CONSIDERED HERE IS WHETHER A TAXPAYER UNDER THE
CIRCUMSTANCES OF THIS CASE IS ENTITLED TO DEDUCT A LOSS ARISING FROM
THE SALE OF SECURITIES TO A CORPORATION WHOLLY OWNED BY THE TAXPAYER. 
THE STATUTE INVOLVED IS SEC. 23(E) OF THE REVENUE ACT OF 1932.  FN4 

THE INNISFAIL CORPORATION WAS WHOLLY OWNED BY THE TAXPAYER, MR.
SMITH.  IT WAS ORGANIZED IN 1926 UNDER THE LAWS OF NEW JERSEY.  THE
OFFICERS AND DIRECTORS OF THE CORPORATION WERE SUBORDINATES OF THE
TAXPAYER.  ITS TRANSACTIONS WERE CARRIED ON UNDER HIS DIRECTION AND
WERE RESTRICTED LARGELY TO OPERATIONS IN BUYING SECURITIES FROM OR
SELLING THEM TO THE TAXPAYER.  WHILE ITS ACCOUNTS WERE KEPT COMPLETELY
SEPARATE FROM THOSE OF THE TAXPAYER, THERE IS NO DOUBT THAT INNISFAIL
WAS HIS CORPORATE SELF.  AS DEALINGS BY A CORPORATION OFFERED
OPPORTUNITIES FOR INCOME AND ESTATE TAX SAVINGS, INNISFAIL WAS CREATED
TO GAIN THESE ADVANTAGES FOR ITS STOCKHOLDER.  ONE OF ITS FIRST ACTS
WAS TO TAKE OVER AN OPTION BELONGING TO THE TAXPAYER FOR THE
ACQUISITION BY EXCHANGE OF A BLOCK OF CHRYSLER COMMON STOCK.  THROUGH
MUTUAL TRANSACTIONS IN BUYING AND SELLING SECURITIES, AND RECEIVING
DIVIDENDS, THE BALANCE OF ACCOUNTS BETWEEN INNISFAIL AND THE TAXPAYER
RESULTED, ON DECEMBER 29, 1932, IN AN INDEBTEDNESS FROM HIM TO
INNISFAIL OF NEARLY $70,000.  ON THAT DATE, AS A PARTIAL PAYMENT ON
THIS INDEBTEDNESS, A NUMBER OF SHARES OF STOCK WERE SOLD TO THE
CORPORATION BY THE TAXPAYER AT MARKET.  THE SECURITIES SOLD HAD COST
THE TAXPAYER MORE THAN THE PRICE CHARGED TO THE CORPORATION, AND IN
CARRYING OUT THE TRANSACTION THE TAXPAYER HAD IN MIND THE TAX
CONSEQUENCES TO HIMSELF. 

IN COMPUTING HIS NET TAXABLE INCOME FOR 1932, THE TAXPAYER DEDUCTED
AS A LOSS THE DIFFERENCE BETWEEN THE COST OF THESE SECURITIES AND THEIR
SALE PRICE TO HIS WHOLLY OWNED CORPORATION.  THE COMMISSIONER OF
INTERNAL REVENUE RULED AGAINST THE CLAIM, WHEREUPON RESPONDENT PAID THE
TAX AND BROUGHT THIS SUIT FOR REFUND IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.  THE CASE WAS TRIED BEFORE
A JURY AND THE VERDICT WAS ADVERSE TO THE TAXPAYER'S CLAIM THAT THE
PURPORTED SALES OF THESE SECURITIES TO INNISFAIL MARKED THE REALIZATION
OF LOSS ON THEIR PURCHASE.  ON APPEAL THE JUDGMENT WAS REVERSED AND THE
CASE REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL.  IT WAS THE
OPINION OF THE COURT OF APPEALS THAT THE FACTS AS DETAILED ABOVE, AS A
MATTER OF LAW, ESTABLISHED THE TRANSFER OF THE SECURITIES TO INNISFAIL
AS AN EVENT DETERMINING LOSS. 

UNDER SEC. 23(E) DEDUCTIONS ARE PERMITTED FOR LOSSES "SUSTAINED
DURING THE TAXABLE YEAR."  THE LOSS IS SUSTAINED WHEN REALIZED BY A
COMPLETED TRANSACTION DETERMINING ITS AMOUNT.  FN5  IN THIS CASE THE
JURY WAS INSTRUCTED TO FIND WHETHER THESE SALES BY THE TAXPAYER TO
INNISFAIL WERE ACTUAL TRANSFERS OF PROPERTY "OUT OF MR. SMITH AND INTO
SOMETHING THAT EXISTED SEPARATE AND APART FROM HIM" OR WHETHER THEY
WERE TO BE REGARDED AS SIMPLY "A TRANSFER BY MR. SMITH'S LEFT HAND,
BEING HIS INDIVIDUAL HAND, INTO HIS RIGHT HAND, BEING HIS CORPORATE
HAND, SO THAT IN TRUTH AND FACT THERE WAS NO TRANSFER AT ALL."  THE
JURY AGREED THE LATTER SITUATION EXISTED.  THERE WAS SUFFICIENT
EVIDENCE OF THE TAXPAYER'S CONTINUED DOMINATION AND CONTROL OF THE
SECURITIES, THROUGH STOCK OWNERSHIP IN THE INNISFAIL CORPORATION, TO
SUPPORT THIS VERDICT, EVEN THOUGH OWNERSHIP IN THE SECURITIES HAD
PASSED TO THE CORPORATION IN WHICH THE TAXPAYER WAS THE SOLE
STOCKHOLDER.  INDEED THIS DOMINATION AND CONTROL IS SO OBVIOUS IN A
WHOLLY OWNED CORPORATION AS TO REQUIRE A PEREMPTORY INSTRUCTION THAT NO
LOSS IN THE STATUTORY SENSE COULD OCCUR UPON A SALE BY A TAXPAYER TO
SUCH AN ENTITY. 

IT IS CLEAR AN ACTUAL CORPORATION EXISTED.  NUMEROUS TRANSACTIONS
WERE CARRIED ON BY IT OVER A PERIOD OF YEARS.  IT PAID TAXES, STATE AND
NATIONAL, FRANCHISE AND INCOME.  BUT THE EXISTENCE OF AN ACTUAL
CORPORATION IS ONLY ONE INCIDENT NECESSARY TO COMPLETE AN ACTUAL SALE
TO IT UNDER THE REVENUE ACT.  TITLE, WE SHALL ASSUME, PASSED TO
INNISFAIL BUT THE TAXPAYER RETAINED THE CONTROL.  THROUGH THE CORPORATE
FORMS HE MIGHT MANIPULATE AS HE CHOSE THE EXERCISE OF SHAREHOLDER'S
RIGHTS IN THE VARIOUS CORPORATIONS, ISSUERS OF THE SECURITIES, AND
COMMAND THE DISPOSITION OF THE SECURITIES THEMSELVES.  THERE IS NOT
ENOUGH OF SUBSTANCE IN SUCH A SALE FINALLY TO DETERMINE A LOSS. 

THE GOVERNMENT URGES THAT THE PRINCIPLE UNDERLYING GREGORY V.
HELVERING  FN6  FINDS EXPRESSION IN THE RULE CALLING FOR A REALISTIC
APPROACH TO TAX SITUATIONS.  AS SO BROAD AND UNCHALLENGED A PRINCIPLE
FURNISHES ONLY A GENERAL DIRECTION, IT IS OF LITTLE VALUE IN THE
SOLUTION OF TAX PROBLEMS.  IF, ON THE OTHER HAND, THE GREGORY CASE IS
VIEWED AS A PRECEDENT FOR THE DISREGARD OF A TRANSFER OF ASSETS WITHOUT
A BUSINESS PURPOSE BUT SOLELY TO REDUCE TAX LIABILITY, IT GIVES SUPPORT
TO THE NATURAL CONCLUSION THAT TRANSACTIONS, WHICH DO NOT VARY CONTROL
OR CHANGE THE FLOW OF ECONOMIC BENEFITS, ARE TO BE DISMISSED FROM
CONSIDERATION.  THERE IS NO ILLUSION ABOUT THE PAYMENT OF A TAX
EXACTION.  EACH TAX, ACCORDING TO A LEGISLATIVE PLAN, RAISES FUNDS TO
CARRY ON GOVERNMENT.  THE PURPOSE HERE IS TO TAX EARNINGS AND PROFITS
LESS EXPENSES AND LOSSES.  IF ONE OR THE OTHER FACTOR IN ANY
CALCULATION IS UNREAL, IT DISTORTS THE LIABILITY OF THE PARTICULAR
TAXPAYER TO THE DETRIMENT OR ADVANTAGE OF THE ENTIRE TAX-PAYING GROUP. 
FN7 

THE TAXPAYER CITES BURNET V. COMMONWEALTH IMPROVEMENT COMPANY  FN8
AS A PRECEDENT FOR TREATING THE TAXPAYER AND HIS SOLELY OWNED
CORPORATION AS SEPARATE ENTITIES.  IN THAT CASE THE CORPORATION SOLD
STOCK TO THE SOLE STOCKHOLDER, THE ESTATE OF P.A.B. WIDENER.  THE
TRANSACTION SHOWED A BOOK PROFIT AND THE CORPORATION SOUGHT A RULING
THAT A SALE TO ITS SOLE STOCKHOLDER COULD NOT RESULT IN A TAXABLE
PROFIT.  THIS COURT CONCLUDED OTHERWISE AND HELD THE IDENTITY OF
CORPORATION AND TAXPAYER DISTINCT FOR PURPOSES OF TAXATION.  FN9  IN
THE COMMONWEALTH IMPROVEMENT COMPANY CASE, THE TAXPAYER, FOR REASONS
SATISFACTORY TO ITSELF VOLUNTARILY HAD CHOSEN TO EMPLOY THE CORPORATION
IN ITS OPERATIONS.  A TAXPAYER IS FREE TO ADOPT SUCH ORGANIZATION FOR
HIS AFFAIRS AS HE MAY CHOOSE AND HAVING ELECTED TO DO SOME BUSINESS AS
A CORPORATION, HE MUST ACCEPT THE TAX DISADVANTAGES.  FN10 

ON THE OTHER HAND, THE GOVERNMENT MAY NOT BE REQUIRED TO ACQUIESCE IN
THE TAXPAYER'S ELECTION OF THAT FORM FOR DOING BUSINESS WHICH IS MOST
ADVANTAGEOUS TO HIM.  THE GOVERNMENT MAY LOOK AT ACTUALITIES AND UPON
DETERMINATION THAT THE FORM EMPLOYED FOR DOING BUSINESS OR CARRYING OUT
THE CHALLENGED TAX EVENT IS UNREAL OR A SHAM MAY SUSTAIN OR DISREGARD
THE EFFECT OF THE FICTION AS BEST SERVES THE PURPOSES OF THE TAX
STATUTE.  TO HOLD OTHERWISE WOULD PERMIT THE SCHEMES OF TAXPAYERS TO
SUPERSEDE LEGISLATION IN THE DETERMINATION OF THE TIME AND MANNER OF
TAXATION.  IT IS COMMAND OF INCOME AND ITS BENEFITS WHICH MARKS THE
REAL OWNER OF PROPERTY.  FN11 

SUCH A CONCLUSION, URGES THE RESPONDENT, IS INCONSISTENT WITH THE
PRIOR INTERPRETATIONS OF THE INCOME TAX LAWS AND CONSEQUENTLY UNFAIR TO
HIM.  HE POINTS TO THE DECISIONS OF FOUR COURTS OF APPEALS WHICH HAVE
HELD LOSSES DETERMINED BY SALES TO CONTROLLED CORPORATIONS ALLOWABLE
FN12  AND FURTHER CALLS ATTENTION TO THE FACT THAT THE BOARD OF TAX
APPEALS HAS CONSISTENTLY REACHED THE SAME CONCLUSION.  FN13  BUT THIS
JUDICIAL AND ADMINISTRATIVE CONSTRUCTION HAS NO SIGNIFICANCE FOR THE
RESPONDENT.  THE BUREAU OF INTERNAL REVENUE HAS INSISTENTLY URGED SINCE
FEBRUARY 18, 1930, THE DATE OF THE BOARD OF TAX APPEALS' DECISION IN
JONES V. HELVERING,  FN14 THAT A TRANSFER FROM A TAXPAYER TO A
CONTROLLED CORPORATION WAS INEFFECTIVE TO CLOSE A TRANSACTION FOR THE
DETERMINATION OF LOSS.  EVERY CASE CITED BY RESPONDENT IN THE COURTS OF
APPEALS AND BEFORE THE BOARD OF TAX APPEALS FOUND THE GOVERNMENT
SUPPORTING THAT CONTENTION.  THE BOARD'S RULING IN THE JONES CASE WAS
STANDING UNREVERSED AT THE TIME OF THE TRANSACTION HERE INVOLVED,
DECEMBER 29, 1932.  IT WAS ONLY AFTER THE TRANSACTIONS HERE INVOLVED
AND AFTER THE REVERSAL OF THE BOARD IN THE JONES CASE ON APRIL 23,
1934, OR THIS COURT'S REFUSAL OF CERTIORARI ON OCTOBER 8, 1934, THAT
THE BOARD OF TAX APPEALS AND THE COURTS OF APPEALS, OVER GOVERNMENT
PROTESTS, RULED IN LINE WITH THE OPINION OF THE COURT OF APPEALS OF THE
DISTRICT OF COLUMBIA IN THE JONES CASE.  IF THE BUREAU'S STAND IN THE
JONES CASE REPRESENTED A CHANGE IN ADMINISTRATIVE PRACTICE, THERE CAN
BE NO DOUBT THAT THE CHANGE OPERATED VALIDLY AT LEAST FROM 1930 ON.
FN15  AFTER THE JONES DEFEAT THE GOVERNMENT SOUGHT RELIEF IN CONGRESS
AND AFTER THE JUDGMENT IN COMMISSIONER V. GRIFFITHS, SUPRA, CERTIORARI
HERE ON A CONFLICT IN PRINCIPLE BETWEEN CIRCUITS.  CERTAINLY THERE WAS
NO ACQUIESCENCE BY THE GOVERNMENT WHICH WOULD JUSTIFY THE TAXPAYER IN
RELYING UPON PRIOR INTERPRETATIONS OF THE LAW.  FN16 

RESPONDENT MAKES THE FURTHER POINT THAT THE PASSAGE OF SEC. 24(A)(6)
OF THE REVENUE ACT OF 1934 FN17  WHICH EXPLICITLY FORBIDS ANY DEDUCTION
FOR LOSSES DETERMINED BY SALES TO CORPORATIONS CONTROLLED BY THE
TAXPAYER IS CONVINCING PROOF THAT THE LAW WAS FORMERLY OTHERWISE.  THIS
DOES NOT FOLLOW.  AT MOST IT IS EVIDENCE THAT A LATER CONGRESS
CONSTRUED THE 1932 ACT TO RECOGNIZE SEPARABLE TAXABLE IDENTITIES
BETWEEN THE TAXPAYER AND HIS WHOLLY OWNED CORPORATION.  AS THE NEW
PROVISION GOES MUCH FARTHER THAN THE FORMER DECISIONS IN DISREGARDING
TRANSFERS BETWEEN MEMBERS OF THE FAMILY IT MAY WELL HAVE BEEN PASSED TO
EXTEND AS WELL AS CLARIFY THE EXISTING RULE.  THE SUGGESTION IS NOT
SUFFICIENTLY PERSUASIVE TO GIVE VITALITY TO A FUTILE TRANSFER. 

THE TAXPAYER HAS PRESERVED TWO OBJECTIONS TO THE DISTRICT JUDGE'S
RULINGS ON THE EVIDENCE.  HE CLAIMS THAT EVIDENCE AS TO TRANSACTIONS
BETWEEN THE TAXPAYER AND THE CORPORATION WHICH TOOK PLACE PRIOR TO THE
SALE HERE INVOLVED WAS REMOTE AND HIGHLY PREJUDICAL.  WE THINK IT
APPARENT THAT THIS EVIDENCE WAS ENTIRELY RELEVANT TO THE PRESENT ISSUE;
THE HISTORY OF THE TAXPAYER'S RELATIONS WITH THE CORPORATION SHED
CONSIDERABLE LIGHT ON THE ACTUAL EFFECT OF THE SALE IN QUESTION.  THE
SECOND CONTENTION IS THAT THE DISTRICT JUDGE CHARGED THE JURY TO GIVE
LESS EFFECT TO THE BOOK ENTRIES OF SMITH AND THE CORPORATION THAN THEY
WERE ENTITLED TO UNDER THE APPLICABLE BOOK ENTRY STATUTE.  FN18 THE
ALLEGED DEPARTURE FROM THE STATUTE HAS BUT DUBIOUS SUPPORT IN THE
RECORD, RESTING ON A SINGLE STATEMENT OF THE JUDGE LIFTED FROM ITS
CONTEXT AS PART OF AN EXTENDED COLLOQUY WITH COUNSEL.  IN THE
CIRCUMSTANCES THERE IS NO MERIT IN THE CLAIM OF PREJUDICE TO THE
TAXPAYER. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  POST, P. 536. 

FN2  102 F.2D 456. 

FN3  103 F.2D 110, AFFIRMED SUB NOM. GRIFFITHS V. COMMISSIONER, ANTE,
P. 355. 

FN4  47 STAT. 169, 179-80.  "SEC.  23.  DEDUCTIONS FROM GROSS
INCOME. 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     .         .         .     .         . 

"(E)  LOSSES BY INDIVIDUALS.  - SUBJECT TO THE LIMITATIONS PROVIDED
IN SUBSECTION (R) OF THIS SECTION, IN THE CASE OF AN INDIVIDUAL, LOSSES
SUSTAINED DURING THE TAXABLE YEAR AND NOT COMPENSATED FOR BY INSURANCE
OR OTHERWISE - 

"(1)  IF INCURRED IN TRADE OR BUSINESS; OR 

"(2)  IF INCURRED IN ANY TRANSACTION ENTERED INTO FOR PROFIT, THOUGH
NOT CONNECTED WITH THE TRADE OR BUSINESS; ..." 

FN5  BURNET V. HUFF, 288 U.S. 156, 161. 

FN6  293 U.S. 465. 

FN7  CF. STONE V. WHITE, 301 U.S. 532, 537. 

FN8  287 U.S. 415. 

FN9  SEE ALSO KLEIN V. BOARD OF SUPERVISORS, 282 U.S. 19; DALTON V.
BOWERS, 287 U.S. 404; BURNET V. CLARK, 287 U.S. 410. 

FN10  CF. EDWARDS V. CHILE COPPER CO., 270 U.S. 452, 456. 

FN11  LUCAS V. EARL, 281 U.S. 111; CORLISS V. BOWERS, 281U.S. 376;
GRIFFITHS V. COMMISSIONER, ANTE, P. 355. 

FN12  JONES V. HELVERING, 63 APP. D.C. 204; 71 F.2D 214(APRIL 23,
1934, REVERSING 18 B.T.A. 1225, DECIDED FEBRUARY 18, 1930), CERT.
DENIED OCTOBER 8, 1934, 293 U.S. 583; COMMISSIONER V. ELDRIDGE, 79 F.2D
629(NOVEMBER 4, 1935, AFFIRMING 30 B.T.A. 1322, DECIDED JULY 31, 1934);
COMMISSIONER V. MCCREERY, 83 F.2D 817(MAY 13, 1936, AFFIRMING B.T.A.
MEMORANDUM OPINION OF JUNE 19, 1935); FOSTER V. COMMISSIONER, 96 F.2D
130(APRIL 18, 1938, AFFIRMING B.T.A. MEMORANDUM OPINION OF DECEMBER 23,
1935); HELVERING V. JOHNSON, 104 F.2D 140(JUNE 1, 1939, AFFIRMING 37
B.T.A. 155, DECIDED JANUARY 21, 1938), AFFIRMED BY AN EQUALLY DIVIDED
COURT, POST, P. 523.    FN13  DAVID STEWART V. COMMISSIONER, 17 B.T.A.
604; CORRADO & GALIARDI, INC. V. COMMISSIONER, 22 B.T.A. 847; EDWARD
SECURITIES CORPORATION V. COMMISSIONER, 30 B.T.A. 918; RALPH
HOCHSTETTER V. COMMISSIONER, 34 B.T.A. 791; JOHN THOMAS SMITH V.
COMMISSIONER, 

FN14  18 B.T.A. 1225, A REHEARING AFFIRMED MAY 26, 1932,
UNPUBLISHED. 

FN15  HELVERING V. WILSHIRE OIL CO., ANTE, P. 90. 

FN16  CF. ESTATE OF SANFORD V. COMMISSIONER, ANTE, P. 39. 

FN17  48 STAT. 680, 691.  "SEC.  24.  ITEMS NOT DEDUCTIBLE. 

"(A)  GENERAL RULE.  - IN COMPUTING NET INCOME NO DEDUCTION SHALL IN
ANY CASE BE ALLOWED IN RESPECT OF - 

.         .         .         .         . 

"(6)  LOSS FROM SALES OR EXCHANGES OF PROPERTY, DIRECTLY OR
INDIRECTLY, (A) BETWEEN MEMBERS OF A FAMILY, OR (B) EXCEPT IN THE CASE
OF DISTRIBUTIONS IN LIQUIDATION, BETWEEN AN INDIVIDUAL AND A
CORPORATION IN WHICH SUCH INDIVIDUAL OWNS, DIRECTLY OR INDIRECTLY, MORE
THAN 50 PER CENTUM IN VALUE OF THE OUTSTANDING STOCK.  FOR THE PURPOSE
OF THIS PARAGRAPH - (C) AN INDIVIDUAL SHALL BE CONSIDERED AS OWNING THE
STOCK OWNED, DIRECTLY OR INDIRECTLY, BY HIS FAMILY; AND (D) THE FAMILY
OF AN INDIVIDUAL SHALL INCLUDE ONLY HIS BROTHERS AND SISTERS (WHETHER
BY THE WHOLE OR HALF BLOOD), SPOUSE, ANCESTORS, AND LINEAL
DESCENDANTS." 

FN18  49 STAT. 1561, 28 U.S.C. SEC. 695. 

MR. JUSTICE ROBERTS, DISSENTING. 

I THINK THE JUDGMENT SHOULD BE AFFIRMED.  TO REVERSE IT IS TO
DISREGARD A RULE RESPECTING THE SEPARATE ENTITY OF CORPORATIONS HAVING
BASIS IN LOGIC AND PRACTICALITY AND WHICH HAS LONG BEEN OBSERVED IN THE
ADMINISTRATION OF THE REVENUE ACTS. 

SINCE THE INCEPTION OF THE SYSTEM OF FEDERAL INCOME TAXATION, CAPITAL
GAINS HAVE BEEN TAXED AND CERTAIN CAPITAL LOSSES HAVE BEEN ALLOWED AS
CREDITS AGAINST SUCH GAINS.  IN ORDER THAT THIS SYSTEM MIGHT BE
PRACTICAL IT HAS BEEN NECESSARY TO SELECT SOME EVENT AS THE CRITERION
OF REALIZATION OF GAIN OR LOSS.  THE REVENUE LAWS HAVE SELECTED THE
TIME OF THE CLOSING OF A CAPITAL TRANSACTION AS THE OCCASION FOR
RECKONING GAIN OR LOSS ON A CAPITAL ASSET.  A TYPICAL METHOD OF CLOSURE
IS A SALE OF THE ASSET. 

AS THE SALE IS VOLUNTARILY MADE BY THE TAXPAYER, HIS DETERMINATION
WHEN HE SHALL SELL AFFECTS HIS CAPITAL GAIN OR LOSS.  HE, THEREFORE, IN
A SENSE, COURTOLS THE QUESTION WHETHER, IN A GIVEN TAXABLE YEAR, HE
MUST PAY TAX ON A REALIZED GAIN OR MAY CLAIM CREDIT FOR A REALIZED
LOSS.  OF COURSE SUCH A SALE MUST BE BONA FIDE AND TITLE MUST PASS
ABSOLUTELY.  IN THE PRESENT INSTANCE THE SALE AND TRANSFER WERE SUCH,
AND, AS THE CIRCUIT COURT OF APPEALS HELD, THERE WAS NOT A SCINTILLA OF
EVIDENCE TO THE CONTRARY FOR THE JURY'S CONSIDERATION.  A TAXPAYER WHO
PRETENDS HE HAS MADE A SALE WHEN IN FACT HE HAS A SECRET AGREEMENT
WHICH LEAVES HIM STILL, FOR ALL PRACTICAL PURPOSES, THE OWNER OF THE
THING SOLD, IS BUT COMMITTING A FRAUD UPON THE REVENUE. 

IF THE SALE IS BONA FIDE, IF TITLE IN FACT PASSES IRREVOCABLY TO
ANOTHER, THAT OTHER TAKES AS HIS BASIS, IN RECKONING HIS GAIN AND LOSS,
THE PRICE HE PAID FOR THE ASSET; AND UPON HIS FUTURE DISPOSITION OF IT
THERE WILL BE A NEW RECKONING OF GAIN OR LOSS WITH RESPECT TO SUCH
DISPOSITION.  HERE, IF INNISFAIL EITHER SOLD TO THE RESPONDENT OR TO A
THIRD PARTY IT WOULD HAVE TO RECKON GAIN OR LOSS ON THE SALE.  IF IT
DISTRIBUTED THE ASSET IN LIQUIDATION THE RESPONDENT WOULD BE SUBJECT TO
A TAX LIABILITY ON THE RECEIPT OF HIS DIVIDEND.  THE SOLE QUESTION,
THEN, IS WHETHER, AS MATTER OF LAW, A BONA FIDE AND ABSOLUTE SALE TO A
WHOLLY OWNED CORPORATION CAN CONSTITUTE A COMPLETED TRANSACTION,
DETERMINING A LOSS. 

THE PROBLEM AS TO HOW A SALE TO A CORPORATION WHOLLY OWNED OR WHOLLY
CONTROLLED BY AN INDIVIDUAL TAXPAYER IS TO BE TREATED IS NOT A NEW
ONE.  THE EXISTENCE OF SUCH CORPORATIONS AND THE DEALINGS BETWEEN THEM
AND THEIR STOCKHOLDER OR STOCKHOLDERS HAVE LONG BEEN UNDERSTOOD. 
CONGRESS WAS NOT IGNORANT OF THE PROBLEM.  FN1  AT THE OUTSET CONGRESS
MIGHT WELL HAVE ADOPTED THE POLICY THAT A SALE BY THE STOCKHOLDER TO
THE CORPORATION, OR VICE VERSA, SHOULD BE DISREGARDED, AND THE
STOCKHOLDER TREATED AS IN EFFECT THE OWNER OF THE CAPITAL ASSET UNTIL
ITS SALE TO A STRANGER.  ON THE OTHER HAND, IT WOULD BE A PRACTICAL
POLICY TO RECOGNIZE THE SEPARATE ENTITY OF THE CORPORATION, TO TREAT A
TRANSFER AT CURRENT VALUE FOR ADEQUATE CONSIDERATION OCCURRING BETWEEN
IT AND ITS SOLE STOCKHOLDER AS CLOSING A TRANSACTION FOR THE PURPOSE OF
RECKONING EITHER GAIN OR LOSS, AND THEN TO TAX THE VENDEE UPON HIS OR
ITS GAIN OR LOSS UPON A SUBSEQUENT TRANSFER BY COMPARISON OF THE BASIS
ON WHICH THE ASSET WAS ACQUIRED AND THE AMOUNT REALIZED ON FINAL
DISPOSITION BY THE VENDEE.  IN FACT, THE LATTER COURSE WAS ADOPTED AND
WAS CONSISTENTLY FOLLOWED UNTIL 1934 WHEN CONGRESS DEALT WITH THE
SUBJECT. 

THIS COURT, SPEAKING BY MR. JUSTICE HOLMES, SAID, IN KLEIN V. BOARD
OF SUPERVISORS, 282 U.S. 19, 24:  "...  BUT IT LEADS NOWHERE TO CALL A
CORPORATION A FICTION.  IF IT IS A FICTION IT IS A FICTION CREATED BY
LAW WITH INTENT THAT IT SHOULD BE ACTED ON AS IF TRUE.  THE CORPORATION
IS A PERSON AND ITS OWNERSHIP IS A NONCONDUCTOR THAT MAKES IT
IMPOSSIBLE TO ATTRIBUTE AN INTEREST IN ITS PROPERTY TO ITS MEMBERS." 

IN THIS VIEW ASSETS RECEIVED ON THE LIQUIDATION OF A ONE-MAN
CORPORATION CONSTITUTE TAXABLE INCOME TO THE SOLE STOCKHOLDER.  FN2
LIKEWISE, LOSSES SUSTAINED BY A CORPORATION WHOLLY OWNED BY ONE
INDIVIDUAL MAY NOT BE REPORTED AND CLAIMED IN THE INDIVIDUAL TAX RETURN
OF THE LATTER.  FN3 AND THE SOLE STOCHOLDER AND HIS CONTROLLED
CORPORATION MAY NOT TACK SUCCESSIVE PERIODS OF OWNERSHIP TO MAKE UP THE
TWO YEARS REQUIRED FOR AN ASSET TO BECOME, WITHIN THE MEANING OF THE
STATUTE, A CAPITAL ASSET.  FN4 

THIS COURT HAS FOUND THAT A TAXABLE GAIN WAS REALIZED IN A CASE WHERE
A WHOLLY OWNED CORPORATION SOLD SECURITIES TO ITS SOLE STOCKHOLDER. 
FN5  EVERY ELEMENT APPEARING IN THAT CASE IS PARALLELED HERE, AS A
COMPARISON OF THE FACTS STATED IN THE OPINIONS IN THE TWO CASES WILL
DEMONSTRATE.  THIS COURT SAID, IN THE EARLIER CASE, REFERRING TO THE
CORPORATION:  "THE FACT THAT IT HAD ONLY ONE STOCKHOLDER SEEMS OF NO
LEGAL SIGNIFICANCE," AND HELD THE CORPORATION A SEPARATE TAXABLE
ENTITY.  IT IS NOW SAID, HOWEVER, THAT THERE IS NO INEQUITY IN NOT
APPLYING THE SAME RULE TO LOSSES AS TO GAINS BECAUSE THE TAXPAYER WHO
EXERCISES THE OPTION TO CONDUCT A PORTION OF HIS BUSINESS THROUGH THE
INSTRUMENTALITY OF A WHOLLY OWNED CORPORATION DOES SO IN THE FULL
KNOWLEDGE THAT, IF HE DOES, GAINS SHOWN ON SALES BY HIM TO THE
CORPORATION WILL BE TAXED WHEREAS LOSSES ON SUCH SALES WILL NOT BE
ALLOWED AS DEDUCTIONS.  AS HEREAFTER WILL BE SHOWN, THIS IS NOW TRUE IN
VIRTUE OF THE AMENDMENT EMBODIED IN THE REVENUE ACT OF 1934 BUT IT WAS
NOT TRUE AS THE LAW STOOD BEFORE THE ADOPTION OF THAT AMENDMENT. 

IN 1921 THE TREASURY WAS FIRST CALLED UPON TO DEAL WITH A LOSS
DEDUCTION ARISING OUT OF A SALE TO A WHOLLY OWNED CORPORATION.  IN THAT
YEAR IT PUBLISHED LAW OPINION 1062.  FN6  IT WAS HELD THAT IF THE SALE
WAS BONA FIDE AND PASSED TITLE ABSOLUTELY TO THE CONTROLLED
CORPORATION, EVEN THOUGH THE SALE WAS MADE WITH THE INTENT OF REDUCING
THE TAX LIABILITY OF THE VENDOR IT FELL WITHIN THE PROVISIONS THE
TREASURY FOLLOWED THIS RULE IN ADMINISTERING THE VARIOUS LOSS UPON A
CLOSED TRANSACTION.  SO FAR AS I AM INFORMED, THE TREASURY FOLLOWED
THIS RULE IN ADMINISTERING THE VARIOUS REVENUE ACTS FOR YEARS AFTER IT
WAS ISSUED.  THE FIRST EVIDENCE OF A CHANGE IN ITS POSITION WAS THE
REFUSAL OF THE COMMISSIONER OF INTERNAL REVENUE TO RECOGNIZE LOSSES
RESULTING TO TAXPAYERS FROM A BONA FIDE SALE OF BONDS OWNED BY THEM TO
A WHOLLY OWNED CORPORATION AT THE CURRENT MARKET PRICE.  FN7  THE BOARD
OF TAX APPEALS SUSTAINED THE COMMISSIONER, BUT THE COURT OF APPEALS OF
THE DISTRICT OF COLUMBIA REVERSED THE BOARD IN JONES V. HELVERING, 71
F.2D 214.  THE DECISION WAS RENDERED APRIL 23, 1934.  THE COMMISSIONER
SOUGHT CERTIORARI WHICH WAS DENIED OCTOBER 8, 1934.  FN8  THE SAME
RESULT HAS BEEN REACHED BY THREE OTHER CIRCUIT COURTS OF APPEAL.  FN9
THE BOARD OF TAX APPEALS FOLLOWED THESE DECISIONS.  FN10  IN THE
MEANTIME THE CIRCUIT COURTS OF APPEAL HAD DECIDED NUMEROUS CASES WHICH
ARE, IN PRINCIPLE, INDISTINGUISHABLE.  FN11 

THIS COURT HAVING DENIED CERTIORARI IN JONES V. HELVERING, SUPRA,
DECIDED GREGORY V. HELVERING, 293 U.S. 465, IN THE FOLLOWING JANUARY. 
IT CITED THE JONES CASE WITH APPROVAL, AT P. 469, SAYING: "...  THE
LEGAL RIGHT OF A TAXPAYER TO DECREASE THE AMOUNT OF WHAT OTHERWISE
WOULD BE HIS TAXES, OR ALTOGETHER AVOID THEM, BY MEANS WHICH THE LAW
PERMITS, CANNOT BE DOUBTED." 

SO WELL SETTLED HAD THE JUDICIAL INTERPRETATION BECOME THAT THE
TREASURY DETERMINED TO RECOMMEND THAT CONGRESS AMEND THE STATUTE.  FN12
THE RESULT WAS THE ADOPTION OF SEC. 24(A)(6) OF THE REVENUE ACT OF
1934.  FN13  THE COMMITTEE REPORTS DISCLOSE THAT CONGRESS THOUGHT IT
NECESSARY TO CHANGE THE STATUTE IN ORDER TO RENDER NONDEDUCTIBLE A LOSS
CLAIMED ON A SALE TO A WHOLLY OWNED OR A CONTROLLED CORPORATION.  FN14
SUBSEQUENT HEARINGS BEFORE THE JOINT COMMISSION ON TAX EVASION AND
AVOIDANCE, 1937, P. 207, INDICATE THE SAME UNDERSTANDING ON THE PART OF
THE BUREAU OF INTERNAL REVENUE AND OF CONGRESS THAT THE RULE OF LAW IN
EFFECT PRIOR TO THE ADOPTION OF THE AMENDMENT IN 1934 WAS CHANGED BY
THAT LEGISLATION.  THE AMENDMENT LISTS AMONG ITEMS NOT DEDUCTIBLE THE
FOLLOWING: 

"(6)  LOSS FROM SALES OR EXCHANGES OF PROPERTY, DIRECTLY OR
INDIRECTLY, (A) BETWEEN MEMBERS OF A FAMILY, OR (B) EXCEPT IN THE CASE
OF DISTRIBUTIONS IN LIQUIDATION, BETWEEN AN INDIVIDUAL AND A
CORPORATION IN WHICH SUCH INDIVIDUAL OWNS, DIRECTLY OR INDIRECTLY, MORE
THAN 50 PER CENTUM IN VALUE OF THE OUTSTANDING STOCK.  FOR THE PURPOSE
OF THIS PARAGRAPH - (C) AN INDIVIDUAL SHALL BE CONSIDERED AS OWNING THE
STOCK OWNED, DIRECTLY OR INDIRECTLY, BY HIS FAMILY; AND (D) THE FAMILY
OF AN INDIVIDUAL SHALL INCLUDE ONLY HIS BROTHERS AND SISTERS (WHETHER
BY THE WHOLE OR HALF BLOOD), SPOUSE, ANCESTORS, AND LINEAL
DESCENDANTS." 

PLAINLY, PRIOR TO 1934, TAXPAYERS WERE JUSTIFIED IN RELYING, FIRST,
UPON THE TREASURY RULING ON THE SUBJECT AND, SECONDLY, UPON THE UNIFORM
DECISIONS OF THE COURTS IN CLAIMING DEDUCTIONS FOR LOSSES ON SALES TO
CONTROLLED CORPORATIONS.  AFTER THE PASSAGE OF THE AMENDMENT THEY WERE
ON NOTICE THAT THIS WAS NO LONGER PERMISSIBLE. 

I TURN THEN TO THE SITUATION HERE PRESENTED.  THE CLAIMS OF THIS
TAXPAYER, AS I HAVE SAID, HAD BEEN SUSTAINED FOR PRIOR YEARS BY THE
BOARD OF TAX APPEALS.  FN15  THE CONGRESS HAD ENACTED THAT SUBSEQUENT
TO 1934 THE TAXPAYER COULD NOT CLAIM SUCH LOSSES.  NOTWITHSTANDING THE
EARLIER DECISIONS OF THE RESPONDENT'S CASE AND THOSE OF OTHER TAXPAYERS
AGAINST THE GOVERNMENT'S PRESENT CONTENTION, THE COMMISSIONER OF
INTERNAL REVENUE, AFTER THE ADOPTION OF THE ACT OF 1934, NAMELY ON
MARCH 11, 1935, SERVED A NOTICE OF DEFICIENCY UPON THE RESPONDENT
RESPECTING LOSSES CLAIMED IN HIS RETURN FOR THE YEAR 1932 ON SALES TO
INNISFAIL.  THUS THE TREASURY REPUDIATED THE POSITION IT HAD TAKEN IN
ASKING THAT THE LAW BE AMENDED TO COVER CASES OF THIS KIND; REVERSED
ITS POSITION IN ACQUIESCING IN THE ADJUDICATION OF THE RESPONDENT'S TAX
LIABILITY FOR EARLIER YEARS AND SOUGHT, NOW THAT IT HAD OBTAINED AN
AMENDMENT OF THE LAW OPERATING PROSPECTIVELY, TO REACH BACK INTO SUNDRY
UNCLOSED ONES, - THIS ONE AMONGST OTHERS, - AND TO ATTEMPT TO OBTAIN
DECISIONS REVERSING THE SETTLED COURSE OF DECISION.  I THINK THIS COURT
SHOULD NOT LEND ITS AID TO THE EFFORT. 

I AM OF OPINION THAT WHERE TAXPAYERS HAVE RELIED UPON A LONG
UNVARYING SERIES OF DECISIONS CONSTRUING AND APPLYING A STATUTE, THE
ONLY APPROPRIATE METHOD TO CHANGE THE RIGHTS OF THE TAXPAYERS IS TO GO
TO CONGRESS FOR LEGISLATION.  IN MY VIEW, THE RESORT TO CONGRESS, ON
THE ONE HAND, FOR AMENDMENT, AND THE APPEAL TO THE COURTS, ON THE
OTHER, FOR A REVERSAL OF CONSTRUCTION, WHICH, IF SUCCESSFUL, WILL
OPERATE UNJUSTLY AND RETROACTIVELY UPON THOSE WHO HAVE ACTED IN
RELIANCE UPON OFT-REITERATED JUDICIAL DECISIONS, ARE WHOLLY
INCONSISTENT. 

I AM OF OPINION THAT THE COURTS SHOULD NOT DISAPPOINT THE WELL
FOUNDED EXPECTATION OF CITIZENS THAT, UNTIL CONGRESS SPEAKS TO THE
CONTRARY, THEY MAY, WITH CONFIDENCE, RELY UPON THE UNIFORM JUDICIAL
INTERPRETATION OF A STATUTE.  THE ACTION TAKEN IN THIS CASE SEEMS TO ME
TO MAKE IT IMPOSSIBLE FOR A CITIZEN SAFETY TO CONDUCT HIM AFFAIRS IN
RELIANCE UPON ANY SETTLED BODY OF COURT DECISIONS. 

FN1  THE REVENUE ACT OF 1932, C. 209, 47 STAT. 169, 196, SEC.
112(B)(5), PROVIDED:  "NO GAIN OR LOSS SHALL BE RECOGNIZED IF PROPERTY
IS TRANSFERRED TO A CORPORATION BY ONE OR MORE PERSONS SOLELY IN
EXCHANGE FOR STOCK OR SECURITIES IN SUCH CORPORATION, AND IMMEDIATELY
AFTER THE EXCHANGE SUCH PERSON OR PERSONS ARE IN CONTROL OF THE
CORPORATION; ..." 

FN2  FRANCE CO. V. COMMISSIONER, 88 F.2D 917; COXE V. HANDY, 24
F.SUPP.  178; JOHN K. GREENWOOD, 1 B.T.A. 291. 

FN3  DALTON V. BOWERS, 287 U.S. 404; MENIHAN V. COMMISSIONER, 79 F.2D
304. 

FN4  WEBBER V. KNOX, 97 F.2D 921. 

FN5  BURNET V. COMMONWEALTH IMPROVEMENT CO., 287 U.S. 415. 

FN6  4 C.B. 168, CITED WITH APPROVAL IN G.C.M. 3008 VII-1 C.B. 235. 

FN7  JONES V. COMMISSIONER, 18 B.T.A. 1225(1930). 

FN8  293 U.S. 583. 

FN9  COMMISSIONER V. ELDRIDGE, 79 F.2D 629(C.C.A. 9); COMMISSIONER V.
MCCREERY, 83 F.2D 817(C.C.A. 9); HELVERING V. JOHNSON, 104 F.2D
140(C.C.A. 8); FOSTER V. COMMISSIONER, 96 F.2D 130(C.C.A. 2); SMITH V.
HIGGINS (THE INSTANT CASE), 102 F.2D 456(C.C.A. 2). 

FN10  DAVID STEWART, 17 B.T.A. 604; CORRADO & GALIARDI, INC., 22
B.T.A. 847; RALPH HOCHSTETTER, 34 B.T.A. 791; JOHN THOMAS SMITH, 40
B.T.A. 387, INVOLVING PRIOR YEARS OF THE TAXPAYER IN THIS CASE.    FN11
LOWA BRIDGE CO. V. COMMISSIONER, 39 F.2D 777; TAPLIN V. COMMISSIONER,
41 F.2D 454; COMMISSIONER V. VAN VORST, 59 F.2D 677; MARSTON V.
COMMISSIONER, 75 F.2D 936; ST. LOUIS UNION TRUST CO. V. UNITED STATES,
82 F.2D 61; SAWTELL V. COMMISSIONER, 82 F.2D 221; COMMISSIONER V.
EDWARD SECURITIES CO., 83 F.2D 1007, AFFIRMING 30 B.T.A. 918. 

FN12  IN THE HEARINGS BEFORE THE JOINT COMMITTEE ON TAX EVASION AND
AVOIDANCE, 1937, P. 206, IT APPEARS THAT THE SOLICITOR GENERAL
CONSIDERED THE LAW SO WELL SETTLED THAT HE REFUSED TO APPLY FOR
CERTIORARI IN THE ELDRIDGE CASE, SUPRA, NOTE 9, ALTHOUGH THE TREASURY
RECOMMENDED SUCH ACTION. 

FN13  48 STAT. 680, 691.    FN14  SEE THE REPORT OF THE COMMITTEE ON
WAYS AND MEANS OF THE HOUSE OF REPRESENTATIVES, H.R. 704, 73D CONG.,
SECOND SESS., P. 23; SENATE REPORT 588, 73D CONG., SECOND SESS., P. 27;
SEE ALSO THE HEARINGS BEFORE THE COMMITTEE ON WAYS AND MEANS, REVENUE
REVISION, 1934, P. 134. 

FN15  SUPRA, NOTE 10. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS OPINION. 
..END :




DEPUTY V. DU PONT, 308 U.S. 488 


NO. 151.  ARGUED DECEMBER 12, 1939.  - DECIDED JANUARY 8, 1940.  - 103
F.2D 257, REVERSED - 22 F.SUPP.  589, AFFIRMED. 


1.  IN CALCULATING NET INCOME FOR TAXATION A DEDUCTION FROM GROSS
INCOME IS ALLOWABLE ONLY IF THERE IS CLEAR STATUTORY PROVISION
THEREFOR.  P. 493. 

2.  IN DETERMINING WHAT ARE "ORDINARY AND NECESSARY" EXPENSES OF A
TAXPAYER'S "TRADE OR BUSINESS," WITHIN THE MEANING OF SEC. 23(A) UNDER
THE REVENUE ACT OF 1928, RESORT IS HAD TO THE POPULAR OR RECEIVED
IMPORT OF THOSE WORDS.  P. 493. 

3.  AN ORDINARY EXPENSE IS ONE THAT IS NORMAL, USUAL OR CUSTOMARY; A
TRANSACTION THAT GIVES RISE TO IT MUST BE OF COMMON OR REGULAR
OCCURRENCE IN THE TYPE OF BUSINESS INVOLVED.  P. 495. 

4.  THE FACT THAT AN EXPENSE WOULD BE AN ORDINARY AND COMMON ONE IN
THE COURSE OF ONE BUSINESS DOES NOT NECESSARILY MAKE IT SUCH IN
CONNECTION WITH ANOTHER BUSINESS.  P. 495. 

5.  CARRYING CHARGES ON SHORT SALES OF STOCK MADE BY A STOCKHOLDER TO
ASSIST HIS CORPORATION AND PRESERVE HIS INVESTMENT IN IT CAN NOT BE
DEDUCTED AS ORDINARY AND NECESSARY EXPENSES OF HIS BUSINESS WHERE IT
DOES NOT APPEAR THAT HE WAS IN THE BUSINESS OF TRADING IN SECURITIES,
OR THAT STOCKHOLDERS, ENGAGED IN CONSERVING AND ENHANCING THEIR
ESTATES, ORDINARILY ASSIST THEIR CORPORATIONS IN SIMILAR FASHION.  PP.
493 ET SEQ. 

6.  IN ORDER TO AID A PLAN OF HIS CORPORATION TO INCREASE THE
EFFICIENCY OF ITS MANAGEMENT BY SELLING SOME OF ITS STOCK TO EXECUTIVE
EMPLOYEES - THE CORPORATION NOT BEING ABLE LEGALLY TO SELL DIRECTLY -
AND TO THE END THAT BY THE PLAN HIS BENEFICIAL INTEREST IN THE
CORPORATION MIGHT BE CONSERVED AND ENHANCED, A STOCKHOLDER MADE SHORT
SALES TO THE EXECUTIVES (THE CORPORATION LENDING THEM THE PRICE) AND
BORROWED THE SHARES REQUISITE TO FULFILL HIS CONTRACTS; WHEN THE
BORROWING PERIOD WAS UP HE RESTORED EQUIVALENT SHARES TO THE LENDER BY
BORROWING THEM ELSEWHERE UNDER A CONTRACT WHICH IN TIME OBLIGED HIM TO
PAY TO THE SECOND LENDER (A) A SUM EQUAL TO DIVIDENDS RECEIVED BY HIM
ON THE BORROWED SHARES, AND (B) A SUM EQUAL TO THE LENDER'S INCOME TAX
ON SUCH PAYMENTS.  ASSUMING THAT THE ACTIVITIES OF THE STOCKHOLDER IN
CONSERVING AND ENHANCING HIS ESTATE CONSTITUTE A "TRADE" OR "BUSINESS"
WITHIN THE MEANING OF SEC. 23(A) OF THE REVENUE ACT OF 1928, HELD: 

(1)  THAT THESE EXPENDITURES WERE NOT DEDUCTIBLE IN COMPUTING THE
STOCKHOLDER'S INCOME BECAUSE THEY PROXIMATELY RESULTED NOT FROM THE
TAXPAYER'S BUSINESS BUT FROM THE BUSINESS OF THE CORPORATION, AND
BECAUSE THEY WERE NEITHER "ORDINARY" NOR "NECESSARY" EXPENSES OF HIS
BUSINESS WITHIN THE MEANING OF SEC. 23(A).  PP. 494 ET SEQ. 

(2)  SUCH EXPENDITURES WERE NOT DEDUCTIBLE AS "INTEREST PAID OR
ACCRUED  ...  ON INDEBTEDNESS" UNDER SUBSECTION 23(B) OF THE ACT.  P.
497. 

7.  ALTHOUGH AN INDEBTEDNESS IS AN OBLIGATION, AN OBLIGATION IS NOT
NECESSARILY AN "INDEBTEDNESS" WITHIN THE MEANING OF SEC. 23(B). 
INTEREST IN ITS USUAL IMPORT IS THE AMOUNT WHICH ONE HAS CONTRACTED TO
PAY FOR THE USE OF BORROWED MONEY.  IN THE BUSINESS WORLD INTEREST ON
INDEBTEDNESS MEANS COMPENSATION FOR THE USE OR FORBEARANCE OF MONEY. 
IT IS ASSUMED THAT CONGRESS HAS USED THE WORDS IN THAT SENSE.  P. 497. 

DEPUTY, ADMINISTRATRIX, ET AL. V. DU PONT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 533, TO REVIEW THE REVERSAL OF A JUDGMENT OF THE
DISTRICT COURT RENDERED AGAINST THE PRESENT RESPONDENT IN HIS ACTION TO
RECOVER MONEY COLLECTED AS INCOME TAXES. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF WHETHER RESPONDENT IN COMPUTING
HIS TAXABLE NET INCOME FOR THE YEAR 1931 MAY DEDUCT PAYMENTS OF
$647,711.56 MADE BY HIM IN THAT YEAR TO THE DELAWARE REALTY AND
INVESTMENT CO. (HEREINAFTER CALLED THE DELAWARE COMPANY).  THE
DEDUCTION IS SOUGHT EITHER UNDER SEC. 23(A) OF THE REVENUE ACT OF
1928(45 STAT. 791) AS "ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED
DURING THE TAXABLE YEAR IN CARRYING ON" THE "TRADE OR BUSINESS" OF
RESPONDENT; OR UNDER SEC. 23(B) AS "INTEREST PAID OR ACCRUED WITHIN THE
TAXABLE YEAR ON INDEBTEDNESS."  THE COMMISSIONER DISALLOWED THE
DEDUCTION AND DETERMINED A DEFICIENCY, WHICH RESPONDENT PAID AND NOW
SEEKS TO RECOVER.  IT IS AGREED THAT IF THE DEDUCTION IS ALLOWED,
RESPONDENT IS ENTITLED TO JUDGMENT FOR $172,351.64.  THE JUDGMENT OF
THE DISTRICT COURT AGAINST RESPONDENT, 22 F.SUPP.  589, WAS REVERSED BY
THE CIRCUIT COURT OF APPEALS, 103 F.2D 257.  WE GRANTED CERTIORARI
BECAUSE OF THE ASSERTED INCONSISTENCY OF THAT RULING WITH WELCH V.
HELVERING, 290 U.S. 111, WHICH CONSTRUED THE MEANING OF THE WORDS
"ORDINARY AND NECESSARY EXPENSES"; AND WITH BURNET V. CLARK, 287 U.S.
410, WHICH LIMITED SUCH DEDUCTIONS TO LOSSES DIRECTLY CONNECTED WITH
THE TAXPAYER'S BUSINESS. 

RESPONDENT'S CLAIM TO THE DEDUCTION AROSE OUT OF THE FOLLOWING
TRANSACTIONS, BRIEFLY SUMMARIZED.  RESPONDENT WAS BENEFICIAL OWNER OF
ABOUT 16% OF THE STOCK OF E.I. DU PONT DE NEMOURS AND COMPANY
(HEREINAFTER CALLED THE DU PONT COMPANY).  IN 1919 THE DU PONT COMPANY
CONSTITUTED A NEW EXECUTIVE COMMITTEE COMPOSED OF NINE YOUNG MEN.  FOR
BUSINESS REASONS, IT THOUGHT IT DESIRABLE THAT THESE MEN HAVE A
FINANCIAL INTEREST IN THE COMPANY.  ALLEGED LEGAL DIFFICULTIES STOOD IN
THE WAY OF THE DU PONT COMPANY SELLING THEM THE 9,000 SHARES DESIRED. 
FN1  ACCORDINGLY, RESPONDENT UNDERTOOK TO SELL THEM 1,000 SHARES EACH. 
BUT SINCE HE DID NOT HAVE READILY AVAILABLE THAT AMOUNT FROM HIS OWN
HOLDINGS,  FN2  HE BORROWED 9,000 SHARES OF THE DU PONT COMPANY FROM
CHRISTIANA SECURITIES COMPANY,  FN3  UNDER AN AGREEMENT WHEREBY HE
AGREED TO RETURN THE STOCK LOANED IN KIND WITHIN TEN YEARS AND IN THE
INTERIM TO PAY TO THE LENDER ALL DIVIDENDS DECLARED AND PAID ON THE
SHARES SO LOANED.  FN4  RESPONDENT THEREUPON SOLD THE SHARES TO THE
NINE EXECUTIVES, THE PURCHASE PRICE BEING FURNISHED BY THE DU PONT
COMPANY.  FN5  IN OCTOBER, 1929 WHEN THE TEN-YEAR PERIOD WAS ABOUT TO
EXPIRE, RESPONDENT DID NOT HAVE AVAILABLE THE NUMBER OF SHARES WHICH HE
WAS OBLIGATED TO RETURN TO CHRISTIANA SECURITIES COMPANY.  FN6
THEREFORE, HE ARRANGED FOR A LOAN FROM THE DELAWARE COMPANY OF THE
NUMBER OF SHARES NECESSARY TO DISCHARGE THAT OBLIGATION.  FN7  UNDER A
CONTRACT WITH THAT COMPANY, RESPONDENT AGREED TO RETURN IN KIND THE
NUMBER OF SHARES LOANED (PLUS ANY INCREASE BY STOCK DIVIDEND OR
OTHERWISE) WITHIN TEN YEARS; TO PAY TO THE DELAWARE COMPANY AN AMOUNT
EQUIVALENT TO ALL DIVIDENDS DECLARED AND PAID ON THE BORROWED SHARES
UNTIL RETURNED; AND TO REIMBURSE THE DELAWARE COMPANY FOR ALL TAXES
ACCURING AGAINST IT BY REASON OF THE AGREEMENT. 

PURSUANT TO THAT AGREEMENT RESPONDENT PAID THE DELAWARE COMPANY IN
1931, THE SUM OF $567,648, BEING AN AMOUNT EQUIVALENT TO THE DIVIDENDS
RECEIVED BY HIM DURING THAT PERIOD FROM THE DU PONT COMPANY ON THE
BORROWED SHARES; AND THE SUM OF $80,063.56, BEING THE AMOUNT OF THE
FEDERAL INCOME TAX IMPOSED UPON THE LENDER BY REASON OF THE FOREGOING
PAYMENTS WHICH IT HAD RECEIVED FROM RESPONDENT.  THESE ARE THE
EXPENDITURES CLAIMED AS A DEDUCTION IN THE PRESENT SUIT. 

THE DISTRICT COURT CONCLUDED, ON THE BASIS OF RESPONDENT'S LARGE AND
DIVERSIFIED INVESTMENT HOLDINGS AND HIS WIDE FINANCIAL AND BUSINESS
INTERESTS, THAT HIS BUSINESS WAS PRIMARILY THAT OF CONSERVING AND
ENHANCING HIS ESTATE.  THE PETITIONERS CHALLENGE THAT CONCLUSION,
ASSERTING THAT RESPONDENT'S ACTIVITIES IN CONNECTION WITH CONSERVING
AND ENHANCING HIS ESTATE DID NOT CONSTITUTE A "TRADE OR BUSINESS"
WITHIN THE MEANING OF SEC. 23(A) OF THE ACT. 

BUT AS WE VIEW THE CASE IT IS UNNECESSARY FOR US TO PASS ON THAT
CONTENTION AND TO MAKE THE DELICATE DISSECTION OF ADMINISTRATIVE
PRACTICE WHICH THAT WOULD ENTAIL.  FOR WE ARE OF THE OPINION THAT THE
DEDUCTIONS ARE NOT PERMITTED EITHER WITHIN THE RULE OF BURNET V. CLARK,
OR WELCH V. HELVERING, SUPRA, EVEN THOUGH WE WERE TO ASSUME THAT THE
ACTIVITIES OF RESPONDENT CONSTITUTED A BUSINESS, AS FOUND BY THE
DISTRICT COURT. 

THERE IS NO INTIMATION IN THE RECORD THAT THE TRANSACTIONS WHEREBY
THE STOCK WAS BORROWED WERE NOT IN GOOD FAITH OR WERE ENTERED INTO FOR
ANY REASON EXCEPT A BONA FIDE BUSINESS PURPOSE.  NOR IS THERE ANY
SUGGESTION THAT THE TRANSACTIONS WERE CAST IN THAT FORM FOR PURPOSES OF
TAX AVOIDANCE.  AND IT IS TRUE THAT AS RESPECTS THE DIVIDENDS RECEIVED
BY RESPONDENT AND PAID OVER TO THE DELAWARE COMPANY, HE WAS LITTLE MORE
THAN A CONDUIT.  BUT ALLOWANCE OF DEDUCTIONS FROM GROSS INCOME DOES NOT
TURN ON GENERAL EQUITABLE CONSIDERATIONS.  IT "DEPENDS UPON LEGISLATIVE
GRACE; AND ONLY AS THERE IS CLEAR PROVISION THEREFOR CAN ANY PARTICULAR
DEDUCTION BE ALLOWED."  NEW COLONIAL ICE CO. V. HELVERING, 292 U.S.
435, 440.  AND WHEN IT COMES TO CONSTRUCTION OF THE STATUTORY PROVISION
UNDER WHICH THE DEDUCTION IS SOUGHT, THE GENERAL RULE THAT "POPULAR OR
RECEIVED IMPORT OF WORDS FURNISHES THE GENERAL RULE FOR THE
INTERPRETATION OF PUBLIC LAWS," MAILLARD V. LAWRENCE, 16 HOW.  251,
261, IS APPLICABLE. 

BY THOSE STANDARDS THE CLAIMED DEDUCTION FALLS FOR TWO REASONS.  IN
THE FIRST PLACE, THE PAYMENTS IN QUESTION DO NOT MEET THE TEST
ENUNCIATED IN KORNHAUSER V. UNITED STATES, 276 U.S. 145, SINCE THEY
PROXIMATELY RESULT NOT FROM THE TAXPAYER'S BUSINESS BUT FROM THE
BUSINESS OF THE DU PONT COMPANY.  THE ORIGINAL TRANSACTIONS HAD THEIR
ORIGIN IN AN EFFORT BY THAT COMPANY TO INCREASE THE EFFICIENCY OF ITS
MANAGEMENT BY SELLING ITS STOCK TO CERTAIN OF ITS KEY EXECUTIVES.  THE
RESPONDENT UNDERTOOK TO FURNISH THE NECESSARY STOCK ONLY AFTER THE
COMPANY HAD BEEN ADVISED THAT IT COULD NOT LEGALLY DO SO.  IN THAT
POSTURE OF THE CASE THESE PAYMENTS ARE NO MORE DEDUCTIBLE THAN WERE THE
PAYMENTS MADE BY THE STOCKHOLDER IN BURNET V. CLARK, SUPRA, AS A RESULT
OF HIS ENDORSEMENTS OF THE OBLIGATIONS OF HIS CORPORATION.  THOSE
PAYMENTS WERE DISALLOWED AS DEDUCTIONS FROM HIS GROSS INCOME THOUGH
THEY AROSE OUT OF TRANSACTIONS WHICH WERE INTENDED TO PRESERVE HIS
INVESTMENT IN THE CORPORATION.  SIMILAR PAYMENTS WERE DISALLOWED IN
DALTON V. BOWERS, 287 U.S. 404.  HENCE, THE FACT THAT THE TRANSACTION
OUT OF WHICH THE CARRYING CHARGES HERE IN QUESTION AROSE MIGHT BENEFIT
RESPONDENT DOES NOT BRING IT WITHIN THE AMBIT OF HIS ALLEGED BUSINESS
OF CONSERVING AND ENHANCING HIS ESTATE.  THE WELL ESTABLISHED DECISIONS
OF THIS COURT DO NOT PERMIT ANY SUCH BLENDING OF THE CORPORATION'S
BUSINESS WITH THE BUSINESS OF ITS STOCKHOLDERS.  ACCORDINGLY, THE
PAYMENTS MADE UNDER THE 1919 AGREEMENT WOULD CERTAINLY NOT BE
DEDUCTIBLE.  AND THE FACT THAT A NEW AND DIFFERENT ARRANGEMENT WAS MADE
IN 1929 WITH THE DELAWARE COMPANY DOES NOT ALTER THE CONCLUSION, FOR IT
IS THE ORIGIN OF THE LIABILITY OUT OF WHICH THE EXPENSE ACCRUES WHICH
IS MATERIAL.  OTHERWISE CARRYING CHARGES ON ANY SHORT SALE WHETHER OR
NOT RELATED TO THE BUSINESS OF THE TAXPAYER WOULD BE ALLOWABLE AS
DEDUCTIBLE EXPENSES.  THAT CANNOT BE IF THE NOTION OF PROXIMATE RESULT
IMPLICIT IN THE STATUTORY WORDS "EXPENSES PAID OR INCURRED  ...  IN
CARRYING ON ANY TRADE OF BUSINESS" IS TO HAVE ANY VITALITY. 

IN THE SECOND PLACE, THESE PAYMENTS WERE NOT "ORDINARY" ONES FOR THE
CONDUCT OF THE KIND OF BUSINESS IN WHICH, WE ASSUME ARGUENDO,
RESPONDENT WAS ENGAGED.  THE DISTRICT COURT HELD THAT THEY WERE "BEYOND
THE NORM OF GENERAL AND ACCEPTED BUSINESS PRACTICE" AND WERE IN FACT
"SO EXTRAORDINARY AS TO OCCUR IN THE LIVES OF ORDINARY BUSINESS MEN NOT
AT ALL" AND IN THE LIFE OF THE RESPONDENT "BUT ONCE."  FN8  CERTAINLY
THERE ARE NO NORMS OF CONDUCT TO WHICH WE HAVE BEEN REFERRED OR OF
WHICH WE ARE COGNIZANT WHICH WOULD BRING THESE PAYMENTS WITHIN THE
MEANING OF ORDINARY EXPENSES FOR CONSERVING AND ENHANCING AN ESTATE. 
WE DO NOT DOUBT THE CORRECTNESS OF THE DISTRICT COURT'S FINDING THAT
RESPONDENT EMBARKED ON THIS PROGRAM TO THE END THAT HIS BENEFICIAL
STOCK OWNERSHIP IN THE DU PONT COMPANY MIGHT BE CONSERVED AND
ENHANCED.  BUT THAT DOES NOT MAKE THE COST TO HIM AN "ORDINARY" EXPENSE
WITHIN THE MEANING OF THE ACT.  ORDINARY HAS THE CONNOTATION OF NORMAL,
USUAL, OR CUSTOMARY.  TO BE SURE, AN EXPENSE MAY BE ORDINARY THOUGH IT
HAPPEN BUT ONCE IN THE TAXPAYER'S LIFETIME.  CF. KORNHAUSER V. UNITED
STATES, SUPRA.  YET THE TRANSACTION WHICH GIVES RISE TO IT MUST BE OF
COMMON OR FREQUENT OCCURRENCE IN THE TYPE OF BUSINESS INVOLVED.  WELCH
V. HELVERING, SUPRA, 114.  HENCE, THE FACT THAT A PARTICULAR EXPENSE
WOULD BE AN ORDINARY OR COMMON ONE IN THE COURSE OF ONE BUSINESS AND SO
DEDUCTIBLE UNDER SEC. 23(A) DOES NOT NECESSARILY MAKE IT SUCH IN
CONNECTION WITH ANOTHER BUSINESS.  THUS, IT HAS BEEN HELD THAT ONE WHO
WAS AN ACTIVE TRADER IN SECURITIES MIGHT TAKE AS DEDUCTIONS CARRYING
CHARGES ON SHORT SALES SINCE SELLING SHORT WAS COMMON IN THAT
BUSINESS.  FN9  BUT THE CARRYING CHARGES ON RESPONDENT'S SHORT SALE IN
THIS CASE CANNOT BE ACCORDED THE SAME PRIVILEGE UNDER SEC. 23(A).  THE
RECORD DOES NOT SHOW THAT RESPONDENT WAS IN THE BUSINESS OF TRADING IN
SECURITIES.  NOR DOES IT SHOW THAT A STOCKHOLDER ENGAGED IN CONSERVING
AND ENHANCING HIS ESTATE ORDINARILY MAKES SHORT SALES OR SIMILARLY
ASSISTS HIS CORPORATION IN FINANCING STOCK PURCHASE PLANS FOR THE
BENEFIT OF ITS EXECUTIVES.  AS STATED IN WELCH V. HELVERING, SUPRA, PP.
113-114:  "...  WHAT IS ORDINARY, THOUGH THERE MUST ALWAYS BE A STRAIN
OF CONSTANCY WITHIN IT, IS NONE THE LESS A VARIABLE AFFECTED BY TIME
AND PLACE AND CIRCUMSTANCE."  ONE OF THE EXTREMELY RELEVANT
CIRCUMSTANCES IS THE NATURE AND SCOPE OF THE PARTICULAR BUSINESS OUT OF
WHICH THE EXPENSE IN QUESTION ACCRUED.  THE FACT THAT AN OBLIGATION TO
PAY HAS ARISEN IS NOT SUFFICIENT.  IT IS THE KIND OF TRANSACTION OUT OF
WHICH THE OBLIGATION AROSE AND ITS NORMALCY IN THE PARTICULAR BUSINESS
WHICH ARE CRUCIAL AND CONTROLLING. 

REVIEW OF THE MANY DECIDED CASES IS OF LITTLE AID SINCE EACH TURNS ON
ITS SPECIAL FACTS.  BUT THE PRINCIPLE IS CLEAR.  AND ON APPLICATION OF
THAT PRINCIPLE TO THESE FACTS, IT SEEMS EVIDENT THAT THE PAYMENTS IN
QUESTION CANNOT BE PLACED IN THE CATEGORY OF THOSE ITEMS OF EXPENSE
WHICH A CONSERVATOR OF AN ESTATE, A CUSTODIAN OF A PORTFOLIO, A
SUPERVISOR OF A GROUP OF INVESTMENTS, A MANAGER OF WIDE FINANCIAL AND
BUSINESS INTERESTS, OR A SUBSTANTIAL STOCKHOLDER IN A CORPORATION
ENGAGED IN CONSERVING AND ENHANCING HIS ESTATE WOULD ORDINARILY INCUR. 
WE CANNOT ASSUME THAT THEY ARE EMBRACED WITHIN THE NORMAL OVERHEAD OR
OPERATING COSTS OF SUCH ACTIVITIES.  THERE IS NO EVIDENCE THAT
STOCKHOLDERS OR INVESTORS, IN FURTHERANCE OF ENHANCING AND CONSERVING
THEIR ESTATES, ORDINARILY OR FREQUENTLY LEND SUCH ASSISTANCE TO
EMPLOYEE STOCK PURCHASE PLANS OF THEIR CORPORATIONS.  AND IN ABSENCE OF
SUCH EVIDENCE THERE IS NO BASIS FOR AN ASSUMPTION, IN EXPERIENCE OR
COMMON KNOWLEDGE, THAT THESE PAYMENTS ARE TO BE PLACED IN THE SAME
CATEGORY AS TYPICALLY ORDINARY EXPENSES OF SUCH ACTIVITIES, E.G.,
RENTAL OF SAFE DEPOSIT BOXES, COST OF INVESTMENT COUNSEL OR OF
INVESTMENT SERVICES, SALARIES OF SECRETARIES AND THE LIKE.  RATHER
THESE PAYMENTS SEEM TO US TO REPRESENT MOST EXTRAORDINARY EXPENSES FOR
THAT TYPE OF ACTIVITY.  THEREFORE, THE CLAIM FOR DEDUCTION FALLS, AS
DID THE CLAIM OF AN OFFICER OF A CORPORATION WHO PAID ITS DEBTS TO
STRENGTHEN HIS OWN STANDING AND CREDIT.  WELCH V. HELVERING, SUPRA.
AND THE FACT THAT THE PAYMENTS MIGHT HAVE BEEN NECESSARY IN THE SENSE
THAT CONSUMMATION OF THE TRANSACTION WITH THE DELAWARE COMPANY WAS
BENEFICIAL TO RESPONDENT'S ESTATE IS OF NO AID.  FOR CONGRESS HAS NOT
DECREED THAT ALL NECESSARY EXPENSES MAY BE DEDUCTED.  THOUGH PLAINLY
NECESSARY THEY CANNOT BE ALLOWED UNLESS THEY ARE ALSO ORDINARY.  WELCH
V. HELVERING, SUPRA. 

WE CONCLUDE THEN ON THIS PHASE OF THE CASE THAT AS THE DISTRICT
COURT, ON A CORRECT INTERPRETATION OF THE ACT, FOUND THAT THESE
PAYMENTS DID NOT PROXIMATELY RESULT FROM, AND WERE NOT ORDINARY
EXPENSES FOR THE CONDUCT OF, RESPONDENT'S ALLEGED BUSINESS, IT WAS
ERROR FOR THE CIRCUIT COURT OF APPEALS TO REVERSE THE JUDGMENT FOR
PETITIONERS.  MCCAUGHN V. REAL ESTATE LAND TITLE & TRUST CO., 297 U.S.
606. 

THERE REMAINS RESPONDENT'S CONTENTION THAT THESE PAYMENTS ARE
DEDUCTIBLE UNDER SEC. 23(B) AS "INTEREST PAID OR ACCURED  ...  ON
INDEBTEDNESS."  CLEARLY RESPONDENT OWED AN OBLIGATION TO THE DELAWARE
COMPANY.  BUT ALTHOUGH AN INDEBTEDNESS IS AN OBLIGATION, AN OBLIGATION
IS NOT NECESSARILY AN "INDEBTEDNESS" WITHIN THE MEANING OF SEC. 23(B). 
NOR ARE ALL CARRYING CHARGES "INTEREST."  IN OLD COLONY R. CO. V.
COMMISSIONER, 284 U.S. 552, THIS COURT HAD BEFORE IT THE MEANING OF THE
WORD "INTEREST" AS USED IN THE COMPARABLE PROVISION OF THE 1921 ACT (42
STAT. 227).  IT SAID, P. 560, "...  AS RESPECTS 'INTEREST,' THE USUAL
IMPORT OF THE TERM IS THE AMOUNT WHICH ONE HAS CONTRACTED TO PAY FOR
THE USE OF BORROWED MONEY."  IT THERE REJECTED THE CONTENTION THAT IT
MEANT "EFFECTIVE INTEREST" WITHIN THE THEORY OF ACCOUNTING OR THAT
"CONGRESS USED THE WORD HAVING IN MIND ANY CONCEPT OTHER THAN THE
USUAL, ORDINARY AND EVERYDAY MEANING OF THE TERM."  P. 561.  IT REFUSED
TO ASSUME THAT THE CONGRESS USED THE TERM WITH REFERENCE TO "SOME
ESOTERIC CONCEPT DERIVED FROM SUBTLE AND THEORETIC ANALYSIS."  P. 561. 
WE LIKEWISE REFUSE TO MAKE THAT ASSUMPTION HERE.  IT IS NOT ENOUGH,
AS URGED BY RESPONDENT, THAT "INTEREST" OR "INDEBTEDNESS" IN THEIR
ORIGINAL CLASSICAL CONTEXT MAY HAVE PERMITTED THIS BROADER MEANING. 
FN10  WE ARE DEALING WITH THE CONTEXT OF A REVENUE ACT AND WORDS WHICH
HAVE TODAY A WELL-KNOWN MEANING.  IN THE BUSINESS WORLD "INTEREST ON
INDEBTEDNESS" MEANS COMPENSATION FOR THE USE OR FORBEARANCE OF MONEY. 
FN11  IN ABSENCE OF CLEAR EVIDENCE TO THE CONTRARY, WE ASSUME THAT
CONGRESS HAS USED THESE WORDS IN THAT SENSE.  IN SUM, WE CANNOT
SACRIFICE THE "PLAIN, OBVIOUS AND RATIONAL MEANING" OF THE STATUTE EVEN
FOR "THE EXIGENCY OF A HARD CASE."  SEE LYNCH V. ALWORTH-STEPHENS CO.,
267 U.S. 364, 370. 

PETITIONERS THROUGHOUT HAVE REFERRED TO THESE PAYMENTS BY RESPONDENT
AS BEING CAPITAL IN NATURE.  CF. BONWIT TELLER & CO. V. COMMISSIONER,
53 F.2D 381; HUTTON V. COMMISSIONER, 39 F.2D 459; BING V. HELVERING, 76
F.2D 941.  WHAT APPROPRIATE TREATMENT MAY BE ACCORDED THESE ITEMS OF
COST UNDER OTHER PROVISIONS OF THE ACT WE DO NOT UNDERTAKE TO SAY, AS
THAT ISSUE IS NOT HERE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  AS STATED BY THE DISTRICT COURT, COUNSEL ADVISED THAT THE DU
PONT COMPANY COULD ISSUE STOCK ONLY FOR MONEY PAID, LABOR PERFORMED, OR
REAL OR PERSONAL PROPERTY ACQUIRED; AND THAT IF THE STOCK WERE TO BE
ISSUED FOR CASH, IT MUST FIRST BE OFFERED TO EXISTING STOCKHOLDERS. 
ACCORDING TO THE FINDINGS THE DU PONT COMPANY DID NOT HAVE 9,000 SHARES
OF ITS STOCK, OTHER THAN UNISSUED STOCK; THAT STOCK WAS NOT THEN LISTED
ON THE NEW YORK STOCK EXCHANGE; AND THE OVER-THE-COUNTER MARKET WAS
QUITE INACTIVE.  NINE THOUSAND SHARES COULD NOT HAVE BEEN PURCHASED ON
THIS MARKET WITHOUT SUBSTANTIALLY RAISING THE PRICE PER SHARE. 

FN2  RESPONDENT HAD AVAILABLE ONLY SEVENTY-FOUR SHARES.  HE HAD A
REVERSIONARY INTEREST IN TWO TRUSTS WHICH HELD 24,000 SHARES.  AND HE
WAS THE OWNER OF 29,125 SHARES OF COMMON STOCK OF CHRISTIANA SECURITIES
COMPANY OUT OF A TOTAL OF 75,000 SHARES ISSUED AND OUTSTANDING.  THAT
COMPANY WAS THEN THE OWNER OF 183,000 SHARES OF COMMON STOCK OF THE DU
PONT COMPANY OUT OF A TOTAL OF 588,542 SHARES ISSUED AND OUTSTANDING. 

FN3 SUPRA, NOTE 2. 

FN4  AS SECURITY RESPONDENT GAVE CHRISTIANA SECURITIES COMPANY 3,800
SHARES OF ITS CAPITAL STOCK.  ALL DIVIDENDS ON THAT STOCK WERE TO BE
PAID TO RESPONDENT. 

FN5  THESE SALES WERE MADE AT THE PRICE OF $320 A SHARE, THAT BEING
APPROXIMATELY THEIR BOOK VALUE.  THE DU PONT COMPANY LOANED TO EACH OF
THE NINE EXECUTIVES THE NECESSARY FUNDS TO PURCHASE HIS 1,000 SHARES. 
THEY PAID RESPONDENT $2,880,000 IN CASH FOR THE 9,000 SHARES. 
ACCORDING TO RESPONDENT'S BRIEF, HE TURNED OVER THIS SUM THROUGH
TRANSACTIONS IN GENERAL MOTORS STOCK WHICH ULTIMATELY YIELDED HIM A
GREAT PROFIT.  SEE DU PONT V. COMMISSIONER, 37 B.T.A. 1198. 

BY MARCH 1921, THE STOCK OF THE DU PONT COMPANY HAD DECLINED IN VALUE
AND THE BARGAIN MADE BY THE EXECUTIVES HAD BECOME A DISADVANTAGEOUS
ONE.  RESPONDENT THEREUPON OFFERED TO TURN OVER 400 SHARES OF THE
CHRISTIANA SECURITIES COMPANY (OF A NET VALUE OF $160,000) TO BE HELD
BY THE DU PONT COMPANY AS ADDITIONAL COLLATERAL ON THE LOAN MADE TO
THESE EXECUTIVES, RESPONDENT TO HAVE THE RIGHT TO REDEEM THOSE 400
SHARES BY PAYMENT OF $160,000 ON MATURITY OF THE LOAN, THAT PAYMENT, IF
MADE, TO BE APPLIED TO THE LOAN.  IF RESPONDENT FAILED TO REDEEM THOSE
SHARES, THEY WERE TO BECOME THE PROPERTY OF THE EXECUTIVES ON PAYMENT
OF THEIR LOANS.  MEANWHILE DIVIDENDS ON THE 400 SHARES UP TO $8,000 PER
ANNUM WERE TO GO TO THE EXECUTIVES, THE BALANCE TO RESPONDENT WHO WAS,
HOWEVER, TO RETURN HIS PORTION TO THE EXECUTIVES IF HE DID NOT REDEEM
THE STOCK.  THIS OFFER WAS ACCEPTED BY THE EXECUTIVES.  RESPONDENT WHEN
HE PROPOSED IT, STATED THAT HE DID SO "AS A LARGE STOCKHOLDER, AND,
PERHAPS, THE ONE TO BE MOST BENEFITED BY THE RECOVERY IN VALUE OF THE
COMPANY'S SHARES."  HE ALSO STATED THAT HE WANTED THE EXECUTIVES TO BE
"FREE OF WORRY OVER THE UNEXPECTED OUTCOME" OF THE STOCK PURCHASE
PLAN. 

FN6  DUE TO STOCK DIVIDENDS AND SPLIT-UPS RESPONDENT WAS OBLIGATED TO
RETURN TO CHRISTIANA SECURITIES COMPANY 142,212 SHARES TO REPLACE THE
9,000 SHARES WHICH HE HAD BORROWED. 

FN7  RESPONDENT WAS NOT A STOCKHOLDER OF THE DELAWARE COMPANY,
ALTHOUGH IT APPEARS THAT HIS BROTHER WAS ONE OF ITS EXECUTIVE
OFFICERS. 

FN8  22 F.SUPP.  589, 597. 

FN9  DART V. COMMISSIONER, 74 F.2D 845.  CF. TERBELL V. COMMISSIONER,
29 B.T.A. 44, AFF'D 71 F.2D 1017, WHERE SUCH CARRYING CHARGES WERE
DISALLOWED AS DEDUCTIONS.  THE BOARD OF TAX APPEALS SAID, P. 45, "WE
HAVE ONLY THE STIPULATED FACTS AND THERE IS NO SUGGESTION IN THOSE
FACTS THAT THE DECEDENT WAS ENGAGED IN THE BUSINESS OF MAKING SHORT
SALES OR IN DEALING IN SECURITIES GENERALLY." 

FN10  RESPONDENT REFERS TO THE MUTUUM IN ROMAN LAW.  LEDLIE'S SOHM'S
INSTITUTES OF ROMAN LAW (2D ED.), P. 395; HARE, THE LAW OF CONTRACTS,
P. 73. 

FN11  THIS MAKES IRRELEVANT OTHER LINES OF AUTHORITY CITED BY
RESPONDENT WHERE "INTEREST" IN A DIFFERENT CONTEXT HAS BEEN USED TO
DESCRIBE DAMAGES OR COMPENSATION FOR THE DETENTION OR USE OF MONEY OR
OF PROPERTY.  SEE UNITED STATES V. NORTH CAROLINA, 136 U.S. 211, 216;
N.Y. GENERAL BUSINESS LAW, SEC. 370, WHICH PROVIDES, "THE RATE OF
INTEREST UPON THE LOAN OR FORBEARANCE OF ANY MONEY, GOODS, OR THINGS,
IN ACTION  ...  SHALL BE SIX DOLLARS UPON ONE HUNDRED DOLLARS, FOR ONE
YEAR,  ..." 

MR. JUSTICE FRANKFURTER, CONCURRING. 

WHAT THE ACTIVITIES OF A TAXPAYER ARE IS AN ISSUE FOR DETERMINATION
BY TRIERS OF FACT.  WHETHER SUCH ACTIVITIES CONSTITUTE A "TRADE OR
BUSINESS" AS CONCEIVED BY SEC. 23(A) OF THE REVENUE ACT OF 1928(45
STAT. 791, 799), IS OPEN FOR DETERMINATION HERE UNFETTERED BY FINDINGS
AND RULINGS BELOW EXCEPT FOR THE WEIGHT OF THE INTRINSIC AUTHORITY OF
ALL LOWER COURT OPINIONS.  TO AVAIL OF THE DEDUCTIONS ALLOWED BY SEC.
23(A), IT IS NOT ENOUGH TO INCUR EXPENSES IN THE ACTIVE CONCERN OVER
ONE'S OWN FINANCIAL INTEREST.  "...  CARRYING ON ANY TRADE OR
BUSINESS," WITHIN THE CONTEMPLATION OF SEC. 23(A), INVOLVES HOLDING
ONE'S SELF OUT TO OTHERS AS ENGAGED IN THE SELLING OF GOODS OR
SERVICES.  THIS THE TAXPAYER DID NOT DO.  EXPENSES FOR TRANSACTIONS NOT
CONNECTED WITH TRADE OR BUSINESS, SUCH AS AN EXPENSE FOR HANDLING
PERSONAL INVESTMENTS, ARE NOT DEDUCTIBLE.  IT IS OTHERWISE WITH
LOSSES.  SEC. 23(E)(2).  WITHOUT ELABORATING THE REASONS FOR THIS
CONSTRUCTION AND NOT UNMINDFUL OF OPPOSING CONSIDERATIONS, INCLUDING
APPROPRIATE REGARD FOR ADMINISTRATIVE PRACTICE, I PREFER TO MAKE THE
CONCLUSION EXPLICIT INSTEAD OF MAKING THE HYPOTHETICAL, LITIGATION
BREEDING ASSUMPTION THAT THIS TAXPAYER'S ACTIVITIES, FOR WHICH EXPENSES
WERE SOUGHT TO BE DEDUCTED, DID CONSTITUTE A "TRADE OR BUSINESS." 

MR. JUSTICE REED JOINS IN THESE VIEWS. 

MR. JUSTICE ROBERTS: 

I FEEL CONSTRAINED TO STATE MY VIEWS, NOT BECAUSE THIS CASE RAISES
ANY IMPORTANT ISSUE OF LAW WHICH SHOULD BE SETTLED BY THIS COURT; BUT,
ON THE CONTRARY, BECAUSE I THINK IT PRESENTS A QUESTION THE ANSWER TO
WHICH DEPENDS SOLELY UPON THE FACTS DISCLOSED BY THE RECORD.  DECISION
OF THE CONTROVERSY CANNOT BE HELPFUL IN THE ADMINISTRATION OF THE
REVENUE ACTS OR SET ANY IMPORTANT PRECEDENT.  I THINK THE WRIT SHOULD
NOT HAVE BEEN GRANTED AND THAT IT NOW SHOULD BE DISMISSED AS
IMPROVIDENTLY GRANTED.  THE AMOUNT OF TAXES INVOLVED OR THE INSISTENCE
OF THE GOVERNMENT THAT THE COURT BELOW ERRED IN ITS APPLICATION OF THE
LAW TO THE FACTS ARE NOT ADEQUATE REASONS FOR REVIEW.  THERE IS NO
DISPUTE AS TO PRINCIPLE AND NO CONFLICT WITH ANY CASE IN THE
APPLICATION OF ANY PRINCIPLE. 

THE FUNCTION OF THIS COURT IS TO RESOLVE CONFLICTS OF DECISION AND TO
SETTLE IMPORTANT PRINCIPLES OF LAW.  THE DISCRETIONARY POWER OF THIS
COURT TO REVIEW JUDGMENTS OF LOWER FEDERAL COURTS WAS NOT INTENDED TO
BE EXERCISED IN EVERY CASE WHERE THOSE COURTS HAVE ADJUDICATED THE
CONFLICTING CLAIMS OF THE PARTIES, WHICH INVOLVES NO IMPORTANT
PRINCIPLE OF LAW AND NO CONFLICT OF DECISION AMONGST THE FEDERAL
COURTS.  OUR RULES ADOPTED TO CARRY OUT THE POLICY OF THE STATUTES
GRANTING THE POWER TO BRING CASES HERE BY CERTIORARI HAVE APPRISED THE
BAR AND THE PUBLIC THAT WE WILL NOT TAKE CASES FULLY HEARD AND
ADJUDICATED BELOW FOR THE MERE PURPOSE OF REEXAMINING THE CORRECTNESS
OF THE RESULT.  (SEE RULE 38, PAR. 5.) 

THE DOMINANT PURPOSE EVIDENCED BY THE INCOME TAX STATUTES IS TO TAX
NET INCOME.  THE POLICY IS TO CREDIT AGAINST GROSS INCOME THE EXPENSES
OF THE BUSINESS WHICH BEGETS EARNINGS.  THE TAXPAYER IS ENTITLED TO
DEDUCT THAT WHICH HE REASONABLY AND IN GOOD FAITH EXPENDED IN THE
EFFORT TO REALIZE A PROFIT.  THE REVENUE ACTS HAVE ALWAYS CHARACTERIZED
DEDUCTIBLE EXPENSES AS THE ORDINARY AND NECESSARY EXPENSES OF THE
BUSINESS, INCURRED AND PAID DURING THE TAXABLE YEAR.  THE OPINION
ASSUMES THAT THE EXPENDITURE HERE IN QUESTION WAS NECESSARY IN THE
CONDUCT OF THE TAXPAYER'S BUSINESS BUT HOLDS THAT IT WAS NOT AN
ORDINARY EXPENSE OF THAT BUSINESS.  OBVIOUSLY WHAT IS AN ORDINARY
EXPENSE OF A GIVEN BUSINESS MUST DEPEND UPON THE NATURE AND SCOPE OF
THE BUSINESS, THE NATURE AND OCCASION OF THE EXPENDITURE, AND OTHER
CONSIDERATIONS WHICH WILL EMERGE IN EACH SPECIFIC CASE.  NECESSARILY
THE DECISION OF ONE CASE WILL HAVE SLIGHT, IF ANY, BEARING UPON THE
PROPER DECISION OF ANOTHER.  IF THIS COURT IS TO TAKE UNDER REVIEW
EVERY DISPUTE IN WHICH THE GOVERNMENT AND A TAXPAYER DIFFER AS TO
WHETHER A GIVEN EXPENDITURE IS AN ORDINARY OR AN EXTRAORDINARY EXPENSE
OF THE TAXPAYER'S BUSINESS WE SHALL BE INVOLVED IN THE DECISION OF
MYRIAD CASES, EACH TURNING UPON ITS OWN FACTS, WITHOUT FURNISHING ANY
LIGHT TO THE TAXPAYERS FOR THEIR FUTURE GUIDANCE.  I THINK THIS IS THE
RESULT OF THE COURT'S OPINION.  IT IS ADMITTED THAT THE FACT THAT THE
EXPENDITURE OCCURRED BUT ONCE IN THE TAXPAYER'S EXPERIENCE DOES NOT
RENDER IT EXTRAORDINARY.  IT MUST BE ADMITTED THAT THE FACT THAT IT IS
A LARGE TRANSACTION DOES NOT RENDER IT EXTRAORDINARY.  WHAT THE OPINION
DOES, IN THE UPSHOT, IS TO CANVASS ALL THE CIRCUMSTANCES AND REACH, AS
I THINK, A CONCLUSION BASED SOLELY UPON THE PECULIAR FACTS OF THIS
SINGLE CASE.  WE HAVE REPEATEDLY WARNED THE BAR AND THE PUBLIC THAT
THIS WE WILL NOT DO BECAUSE WE DO NOT SIT FOR ANY SUCH PURPOSE. 

AN ADDED REASON FOR REFUSING TO DECIDE THE CASE IS THE ADMISSION THAT
THE TREASURY AND THE BOARD OF TAX APPEALS IN YEARS PAST HAVE HELD A
SIMILAR EXPENSE INCURRED IN EARLIER YEARS AN EXPENSE OF THE TAXPAYER'S
BUSINESS.  IN A MATTER RESTING SO MUCH IN JUDGMENT AND DISCRETION AS
THE DETERMINATION OF WHAT IS ORDINARY AND WHAT EXTRAORDINARY
EXPENDITURE IN A BUSINESS THE WEIGHT OF A CONTINUED ADMINISTRATIVE
CONSTRUCTION IS OF PECULIAR IMPORTANCE; AND WE OUGHT NOT NOW DEPART
FROM THE RULE LONG OBSERVED THAT SUCH PRACTICE IS ENTITLED TO HIGH
CONSIDERATION AT THE HANDS OF THE COURTS AND SHOULD NOT BE OVERTURNED
UNLESS CLEARLY WRONG AND FOR THE MOST COGENT REASONS. 

SINCE THE CASE HAS BEEN TAKEN AND CONSIDERED ON THE MERITS I THINK
THE JUDGMENT BELOW SHOULD BE AFFIRMED.  I NEED ADD LITTLE TO THE
OPINION OF JUDGE MARIS OF THE CIRCUIT COURT OF APPEALS, WITH WHICH I
AGREE.  THE TAXPAYER BORROWED STOCK IN ORDER TO SELL IT FOR CASH TO
OTHERS.  HIS CONTRACT OBLIGATED HIM EITHER TO RETURN THE STOCK OR TO
PAY THE CARRYING CHARGES TO THE LENDER.  WHAT HE PAID WAS NOT
TECHNICALLY INTEREST BUT IT WAS AN EXPENSE NECESSARY TO HIS OBTAINING
AND USING THE STOCK.  HE HAD SEVERAL ALTERNATIVES:  TO PAY THE ANNUAL
CARRYING CHARGES, OR TO DEFAULT, AND, IN THAT CASE, TO GO INTO THE
MARKET TO BUY THE STOCK AND RETURN IT TO THE LENDER OR TO PAY THE
LENDER THE VALUE THEREOF. 

WHAT WAS THERE EXTRAORDINARY ABOUT THIS TRANSACTION AS COMPARED WITH
THE BORROWING OF ANY COMMODITY OTHER THAN STOCK FOR A BUSINESS REASON
AND WITH A BUSINESS PURPOSE?  IN THE CONDUCT OF EVERY BUSINESS
SITUATIONS ARISE WHICH MUST BE MET.  THE CIRCUMSTANCE THAT SUCH A
SITUATION HAD NOT THERETOFORE ARISEN, OR THAT THE TRANSACTION WAS THE
FIRST OF ITS KIND IN THE RESPONDENT'S BUSINESS EXPERIENCE, DOES NOT
RENDER IT EXTRAORDINARY IN THE SENSE IN WHICH THE STATUTE USES THE
TERM.  THE LIMITATION PLACED BY CONGRESS UPON THE TYPES OF EXPENDITURES
MADE DEDUCTIBLE WAS INTENDED TO PREVENT EVASION OF PAYMENT OF TAX ON
TRUE NET INCOME, WHICH CONFESSEDLY WAS NOT A MOTIVE IN THE PRESENT
INSTANCE.  I THINK THAT UNDER THE GUISE OF ENFORCING THE PLAIN MANDATE
OF THE STATUTE THE COURT IS REALLY READING INTO THE LAW WHAT IS NOT
THERE AND WHAT CONGRESS DID NOT INTEND TO PLACE THERE. 

TO SUGGEST, EVEN BY INDIRECTION, THAT PERCHANCE THE TAXPAYER'S
EXPENDITURE MAY BE TREATED AS A CAPITAL EXPENDITURE IS, IN MY JUDGMENT,
TO KEEP THE WORD OF PROMISE TO THE EAR AND BREAK IT TO THE HOPE.  IN MY
VIEW THE CARRYING CHARGE OF THE TAXPAYER'S LOAN WAS EITHER AN ORDINARY
EXPENSE OF HIS BUSINESS OR IT WAS NOTHING OF CONSEQUENCE UNDER ANY
PROVISION OF THE STATUTE. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS OPINION. 
..END :
























CHICOT COUNTY DIST. V. BANK, 308 U.S. 371 


NO. 122.  ARGUED DECEMBER 7, 1939.  - DECIDED JANUARY 2, 1940.  - 103
F.2D 847, REVERSED. 


1.  BONDHOLDERS OF A STATE DRAINAGE DISTRICT, WHO WERE PARTIES TO A
PROCEEDING UNDER THE ACT OF CONGRESS OF MAY 24, 1934, FOR A RE
ADJUSTMENT OF ITS INDEBTEDNESS, AND WHO DID NOT THEN QUESTION THE
CONSTITUTIONALITY OF THAT STATUTE, BUT DID NOT COMPLY WITH THE
PROVISIONS OF THE DECREE FOR RETIREMENT OF THEIR BONDS WITHIN A TIME
LIMITED, ARE ESTOPPED, BY THE PRINCIPLE OF RES JUDICATA, FROM RAISING
THAT QUESTION OF CONSTITUTIONALITY IN A SUBSEQUENT ACTION ON THEIR
BONDS, NOTWITHSTANDING THAT, IN THE MEANTIME, IN ANOTHER CASE, COMING
FROM ANOTHER DISTRICT, THIS COURT HAD DECLARED THE ACT
UNCONSTITUTIONAL.  PP. 374-375. 

2.  THE LOWER FEDERAL COURTS, INCLUDING THE DISTRICT COURT SITTING AS
A COURT OF BANKRUPTCY, THOUGH THEIR JURISDICTION IS LIMITED TO THAT
PRESCRIBED BY ACTS OF CONGRESS, ARE NEVERTHELESS COURTS WITH AUTHORITY,
WHEN PARTIES ARE BROUGHT BEFORE THEM IN ACCORDANCE WITH THE
REQUIREMENTS OF DUE PROCESS, TO DETERMINE WHETHER OR NOT THEY HAVE
JURISDICTION TO ENTERTAIN THE CAUSE AND FOR THIS PURPOSE TO CONSTRUE
AND APPLY THE STATUTE UNDER WHICH THEY ARE ASKED TO ACT.  THEIR
DETERMINATIONS OF SUCH QUESTIONS, WHILE OPEN TO DIRECT REVIEW, MAY NOT
BE ASSAILED COLLATERALLY.  P. 376. 

3.  RES JUDICATA MAY BE PLEADED AS A BAR, NOT ONLY AS RESPECTS
MATTERS ACTUALLY PRESENTED TO SUSTAIN OR DEFEAT THE RIGHT ASSERTED IN
THE EARLIER PROCEEDINGS, BUT ALSO AS RESPECTS ANY OTHER AVAILABLE
MATTER WHICH MIGHT HAVE BEEN PRESENTED TO THAT END.  P. 378. 

CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER STATE BANK ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 532, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED IN THE DISTRICT COURT IN AN ACTION ON BONDS OF A DRAINAGE
DISTRICT. 

MR. G. W. HENDRICKS FOR RESPONDENTS, MADE THE FOLLOWING CITATIONS:
ASHTON V. CAMERON COUNTY WATER IMPROVEMENT DIST., 298 U.S. 513;
MCDONALD V. MABEE, 243 U.S. 90; CHICAGO, I. & L.R. CO. V. HACKETT, 228
U.S. 559; NORTON V. SHELBY CO., 118 U.S. 425; SECURITY SAVINGS BANK V.
CONNELL, 200 N.W. 8; SERVONITZ V. STATE, 113 N.W. 277; METZGER MOTOR
CAR CO. V. PARROTT, 233 U.S. 36; BLACK ON JUDGMENTS, SEC. 216; FREEMAN
ON JUDGMENTS, (5TH ED.)  VOL.  1, P. 733; CONSTITUTIONAL LAW, 11 AM.
JUR.  SEC.  148, "EFFECT OF UNCONSTITUTIONAL STATUTES"; RANKIN V.
SCHOFIELD, 81 ARK. 463; TOWNSLEY-MYRICK DRY GOODS CO. V. FULLER, 58
ARK. 186; PITCOCK V. STATE, 91 ARK. 534; ERIE R. CO. V. TOMPKINS, 304
U.S. 64. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS BROUGHT THIS SUIT IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DIVISION OF THE EASTERN DISTRICT OF ARKANSAS TO RECOVER ON
FOURTEEN BONDS OF $1,000 EACH, WHICH HAD BEEN ISSUED IN 1924 BY THE
PETITIONER, CHICOT COUNTY DRAINAGE DISTRICT, ORGANIZED UNDER STATUTES
OF ARKANSAS,  FN1  AND HAD BEEN IN DEFAULT SINCE 1932. 

IN ITS ANSWER, PETITIONER PLEADED A DECREE OF THE SAME DISTRICT COURT
IN A PROCEEDING INSTITUTED BY PETITIONER TO EFFECT A PLAN OF
READJUSTMENT OF ITS INDEBTEDNESS UNDER THE ACT OF MAY 24, 1934, FN2
PROVIDING FOR "MUNICIPAL-DEBT READJUSTMENTS."  THE DECREE RECITED THAT
A PLAN OF READJUSTMENT HAD BEEN ACCEPTED BY THE HOLDERS OF MORE THAN
TWO-THIRDS OF THE OUTSTANDING INDEBTEDNESS AND WAS FAIR AND EQUITABLE;
THAT TO CONSUMMATE THE PLAN AND WITH THE APPROVAL OF THE COURT
PETITIONER HAD ISSUED AND SOLD NEW SERIAL BONDS TO THE RECONSTRUCTION
FINANCE CORPORATION IN THE AMOUNT OF $193,500 AND THAT THESE NEW BONDS
WERE VALID OBLIGATIONS; THAT, ALSO WITH THE APPROVAL OF THE COURT, THE
RECONSTRUCTION FINANCE CORPORATION HAD PURCHASED OUTSTANDING
OBLIGATIONS OF PETITIONER TO THE AMOUNT OF $705,087.06 WHICH HAD BEEN
DELIVERED IN EXCHANGE FOR NEW BONDS AND CANCELED; THAT CERTAIN PROCEEDS
HAD BEEN TURNED OVER TO THE CLERK OF THE COURT AND THAT THE DISBURSING
AGENT HAD FILED HIS REPORT SHOWING THAT THE RECONSTRUCTION FINANCE
CORPORATION HAD PURCHASED ALL THE OLD BONDS OF PETITIONER OTHER THAN
THE AMOUNT OF $57,449.30.  THE DECREE PROVIDED FOR THE APPLICATION OF
THE AMOUNT PAID INTO COURT TO THE REMAINING OLD OBLIGATIONS OF
PETITIONER, THAT SUCH OBLIGATIONS MIGHT BE PRESENTED WITHIN ONE YEAR,
AND THAT UNLESS SO PRESENTED THEY SHOULD BE FOREVER BARRED FROM
PARTICIPATING IN THE PLAN OF READJUSTMENT OR IN THE FUND PAID INTO
COURT.  EXCEPT FOR THE PROVISION FOR SUCH PRESENTATION, THE DECREE
CANCELED THE OLD BONDS AND THE HOLDERS WERE ENJOINED FROM THEREAFTER
ASSERTING ANY CLAIM THEREON. 

PETITIONER PLEADED THIS DECREE, WHICH WAS ENTERED IN MARCH, 1936, AS
RES JUDICATA.  RESPONDENTS DEMURRED TO THE ANSWER.  THEREUPON THE
PARTIES STIPULATED FOR TRIAL WITHOUT A JURY. 

THE EVIDENCE SHOWED RESPONDENTS' OWNERSHIP OF THE BONDS IN SUIT AND
THAT RESPONDENTS HAD NOTICE OF THE PROCEEDING FOR DEBT READJUSTMENT. 
THE RECORD OF THAT PROCEEDING, INCLUDING THE FINAL DECREE, WAS
INTRODUCED.  THE DISTRICT COURT RULED IN FAVOR OF RESPONDENTS AND THE
CIRCUIT COURT OF APPEALS AFFIRMED.  103 F.2D 847.  THE DECISION WAS
PLACED UPON THE GROUND THAT THE DECREE WAS VOID BECAUSE, SUBSEQUENT TO
ITS ENTRY, THIS COURT IN A PROCEEDING RELATING TO A MUNICIPAL DISTRICT
IN TEXAS HAD DECLARED THE STATUTE UNDER WHICH THE DISTRICT COURT HAD
ACTED TO BE UNCONSTITUTIONAL.  ASHTON V. CAMERON COUNTY DISTRICT, 298
U.S. 513.  IN VIEW OF THE IMPORTANCE OF THE QUESTION WE GRANTED
CERTIORARI.  OCTOBER 9, 1939. 

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.  NORTON V. SHELBY
COUNTY, 118 U.S. 425, 442; CHICAGO, I. & L. RY. CO. V. HACKETT, 228
U.S. 559, 566.  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.  THESE QUESTIONS ARE AMONG THE MOST DIFFICULT OF
THOSE WHICH HAVE ENGAGED THE ATTENTION OF COURTS, STATE AND FEDERAL,
AND IT IS MANIFEST FROM NUMEROUS DECISIONS THAT AN ALL-INCLUSIVE
STATEMENT OF A PRINCIPLE OF ABSOLUTE RETROACTIVE INVALIDITY CANNOT BE
JUSTIFIED.  FN3  WITHOUT ATTEMPTING TO REVIEW THE DIFFERENT CLASSES OF
CASES IN WHICH THE CONSEQUENCES OF A RULING AGAINST VALIDITY HAVE BEEN
DETERMINED IN RELATION TO THE PARTICULAR CIRCUMSTANCES OF PAST
TRANSACTIONS, WE APPROPRIATELY CONFINE OUR CONSIDERATION TO THE
QUESTION OF RES JUDICATA AS IT NOW COMES BEFORE US. 

FIRST.  APART FROM THE CONTENTION AS TO THE EFFECT OF THE LATER
DECISION AS TO CONSTITUTIONALITY, ALL THE ELEMENTS NECESSARY TO
CONSTITUTE THE DEFENSE OF RES JUDICATA ARE PRESENT.  IT APPEARS THAT
THE PROCEEDINGS IN THE DISTRICT COURT TO BRING ABOUT A PLAN OF
READJUSTMENT WERE CONDUCTED IN COMPLETE CONFORMITY TO THE STATUTE.  THE
CIRCUIT COURT OF APPEALS OBSERVED THAT NO QUESTION HAD BEEN RAISED AS
TO THE REGULARITY OF THE COURT'S ACTION.  THE ANSWER IN THE PRESENT
SUIT ALLEGED THAT THE PLAINTIFFS (RESPONDENTS HERE) HAD NOTICE OF THE
PROCEEDING AND WERE PARTIES, AND THE EVIDENCE WAS TO THE SAME EFFECT,
SHOWING COMPLIANCE WITH THE STATUTE IN THAT RESPECT.  AS PARTIES, THESE
BONDHOLDERS HAD FULL OPPORTUNITY TO PRESENT ANY OBJECTIONS TO THE
PROCEEDING, NOT ONLY AS TO ITS REGULARITY, OR THE FAIRNESS OF THE
PROPOSED PLAN OF READJUSTMENT, OR THE PROPRIETY OF THE TERMS OF THE
DECREE, BUT ALSO AS TO THE VALIDITY OF THE STATUTE UNDER WHICH THE
PROCEEDING WAS BROUGHT AND THE PLAN PUT INTO EFFECT.  APPARENTLY NO
QUESTION OF VALIDITY WAS RAISED AND THE CAUSE PROCEEDED TO DECREE ON
THE ASSUMPTION BY ALL PARTIES AND THE COURT ITSELF THAT THE STATUTE WAS
VALID.  THERE WAS NO ATTEMPT TO REVIEW THE DECREE.  IF THE GENERAL
PRINCIPLES GOVERNING THE DEFENSE OF RES JUDICATA ARE APPLICABLE, THESE
BONDHOLDERS, HAVING THE OPPORTUNITY TO RAISE THE QUESTION OF
INVALIDITY, WERE NOT THE LESS BOUND BY THE DECREE BECAUSE THEY FAILED
TO RAISE IT.  CROMWELL V. COUNTY OF SAC, 94 U.S. 351, 352; CASE V.
BEAUREGARD, 101 U.S. 688, 692; BALTIMORE STEAMSHIP CO. V. PHILLIPS, 274
U.S. 316, 319, 325; GRUBB V. PUBLIC UTILITIES COMM'N, 281 U.S. 470,
479. 

SECOND.  THE ARGUMENT IS PRESSED THAT THE DISTRICT COURT WAS SITTING
AS A COURT OF BANKRUPTCY, WITH THE LIMITED JURISDICTION CONFERRED BY
STATUTE, AND THAT, AS THE STATUTE WAS LATER DECLARED TO BE INVALID, THE
DISTRICT COURT WAS WITHOUT JURISDICTION TO ENTERTAIN THE PROCEEDING AND
HENCE ITS DECREE IS OPEN TO COLLATERAL ATTACK.  WE THINK THE ARGUMENT
UNTENABLE.  THE LOWER FEDERAL COURTS ARE ALL COURTS OF LIMITED
JURISDICTION, THAT IS, WITH ONLY THE JURISDICTION WHICH CONGRESS HAS
PRESCRIBED.  BUT NONE THE LESS THEY ARE COURTS WITH AUTHORITY, WHEN
PARTIES ARE BROUGHT BEFORE THEM IN ACCORDANCE WITH THE REQUIREMENTS OF
DUE PROCESS, TO DETERMINE WHETHER OR NOT THEY HAVE JURISDICTION TO
ENTERTAIN THE CAUSE AND FOR THIS PURPOSE TO CONSTRUE AND APPLY THE
STATUTE UNDER WHICH THEY ARE ASKED TO ACT.  THEIR DETERMINATIONS OF
SUCH QUESTIONS, WHILE OPEN TO DIRECT REVIEW, MAY NOT BE ASSAILED
COLLATERALLY. 

IN THE EARLY CASE OF M'CORMICK V. SULLIVANT, 10 WHEAT.  192, WHERE IT
WAS CONTENDED THAT THE DECREE OF THE FEDERAL DISTRICT COURT DID NOT
SHOW THAT THE PARTIES TO THE PROCEEDINGS WERE CITIZENS OF DIFFERENT
STATES AND HENCE THAT THE SUIT WAS CORAM NON JUDICE AND THE DECREE
VOID, THIS COURT SAID:  "BUT THIS REASON PROCEEDS UPON AN INCORRECT
VIEW OF THE CHARACTER AND JURISDICTION OF THE INFERIOR COURTS OF THE
UNITED STATES.  THEY ARE ALL OF LIMITED JURISDICTION; BUT THEY ARE NOT,
ON THAT ACCOUNT, INFERIOR COURTS, IN THE TECHNICAL SENSE OF THOSE
WORDS, WHOSE JUDGMENTS, TAKEN ALONE, ARE TO BE DISREGARDED.  IF THE
JURISDICTION BE NOT ALLEGED IN THE PROCEEDINGS, THEIR JUDGMENTS AND
DECREES ARE ERRONEOUS, AND MAY, UPON A WRIT OF ERROR, OR APPEAL, BE
REVERSED FOR THAT CAUSE.  BUT THEY ARE NOT ABSOLUTE NULLITIES."  ID.,
P. 199.  SEE, ALSO, SKILLERN'S EXECUTORS V. MAY'S EXECUTORS, 6 CRANCH
267; DES MOINES NAVIGATION CO. V. IOWA HOMESTEAD CO., 123 U.S. 552,
557, 559; DOWELL V. APPLEGATE, 152 U.S. 327, 340; EVERS V. WATSON, 156
U.S. 527, 533; CUTLER V. HUSTON, 158 U.S. 423, 430, 431.  THIS RULE
APPLIES EQUALLY TO THE DECREES OF THE DISTRICT COURT SITTING IN
BANKRUPTCY, THAT IS, PURPORTING TO ACT UNDER A STATUTE OF CONGRESS
PASSED IN THE EXERCISE OF THE BANKRUPTCY POWER.  THE COURT HAS THE
AUTHORITY TO PASS UPON ITS OWN JURISDICTION AND ITS DECREE SUSTAINING
JURISDICTION AGAINST ATTACK, WHILE OPEN TO DIRECT REVIEW, IS RES
JUDICATA IN A COLLATERAL ACTION.  STOLL V. GOTTLIEB, 305 U.S. 165, 171,
172. 

WHATEVER THE CONTENTION AS TO JURISDICTION MAY BE, WHETHER IT IS THAT
THE BOUNDARIES OF A VALID STATUTE HAVE BEEN TRANSGRESSED, OR THAT THE
STATUTE ITSELF IS INVALID, THE QUESTION OF JURISDICTION IS STILL ONE
FOR JUDICIAL DETERMINATION.  IF THE CONTENTION IS ONE AS TO VALIDITY,
THE QUESTION IS TO BE CONSIDERED IN THE LIGHT OF THE STANDING OF THE
PARTY WHO SEEKS TO RAISE THE QUESTION AND OF ITS PARTICULAR
APPLICATION.  IN THE PRESENT INSTANCE IT IS SUGGESTED THAT THE
SITUATION OF PETITIONER, CHICOT COUNTY DRAINAGE DISTRICT, IS DIFFERENT
FROM THAT OF THE MUNICIPAL DISTRICT BEFORE THE COURT IN THE ASHTON
CASE.  PETITIONER CONTENDS THAT IT IS NOT A POLITICAL SUBDIVISION OF
THE STATE OF ARKANSAS BUT AN AGENT OF THE PROPERTY OWNERS WITHIN THE
DISTRICT.  SEE DRAINAGE DISTRICT NO. 7 OF POINSETT COUNTY V. HUTCHINS,
184 ARK. 521; 42 S.W.2D 996.  FN4  WE DO NOT REFER TO THAT PHASE OF THE
CASE AS NOW DETERMINATIVE BUT MERELY AS ILLUSTRATING THE SORT OF
QUESTION WHICH THE DISTRICT COURT MIGHT HAVE BEEN CALLED UPON TO
RESOLVE HAD THE VALIDITY OF THE ACT OF CONGRESS IN THE PRESENT
APPLICATION BEEN RAISED.  AS THE QUESTION OF VALIDITY WAS ONE WHICH HAD
TO BE DETERMINED BY A JUDICIAL DECISION, IF DETERMINED AT ALL, NO
REASON APPEARS WHY IT SHOULD NOT BE REGARDED AS DETERMINABLE BY THE
DISTRICT COURT LIKE ANY OTHER QUESTION AFFECTING ITS JURISDICTION. 
THERE CAN BE NO DOUBT THAT IF THE QUESTION OF THE CONSTITUTIONALITY OF
THE STATUTE HAD ACTUALLY BEEN RAISED AND DECIDED BY THE DISTRICT COURT
IN THE PROCEEDING TO EFFECT A PLAN OF DEBT READJUSTMENT IN ACCORDANCE
WITH THE STATUTE, THAT DETERMINATION WOULD HAVE BEEN FINAL SAVE AS IT
WAS OPEN TO DIRECT REVIEW UPON APPEAL.  STOLL V. GOTTLIEB, SUPRA.  FN5 

THE REMAINING QUESTION IS SIMPLY WHETHER RESPONDENTS, HAVING FAILED
TO RAISE THE QUESTION IN THE PROCEEDING TO WHICH THEY WERE PARTIES AND
IN WHICH THEY COULD HAVE RAISED IT AND HAD IT FINALLY DETERMINED, WERE
PRIVILEGED TO REMAIN QUIET AND RAISE IT IN A SUBSEQUENT SUIT.  SUCH A
VIEW IS CONTRARY TO THE WELL-SETTLED PRINCIPLE THAT RES JUDICATA MAY BE
PLEADED AS A BAR, NOT ONLY AS RESPECTS MATTERS ACTUALLY PRESENTED TO
SUSTAIN OR DEFEAT THE RIGHT ASSERTED IN THE EARLIER PROCEEDING, "BUT
ALSO AS RESPECTS ANY OTHER AVAILABLE MATTER WHICH MIGHT HAVE BEEN
PRESENTED TO THAT END."  GRUBB V. PUBLIC UTILITIES COMM'N, SUPRA;
CROMWELL V. COUNTY OF SAC, SUPRA. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT WITH DIRECTION TO DISMISS THE COMPLAINT.  REVERSED. 

FN1  ACT NO. 405, EXTRA.  SESS., GENERAL ASSEMBLY OF ARKANSAS,
APPROVED FEBRUARY 20, 1920, AS AMENDED BY ACT NO. 432 OF 1921, AND
GENERAL DRAINAGE LAW OF ARKANSAS, APPROVED MAY 27, 1909. 

FN2  48 STAT. 798.  ORIGINALLY THIS PROVISION WAS LIMITED TO TWO
YEARS BUT IT WAS EXTENDED TO JANUARY 1, 1940, BY ACT APPROVED APRIL 10,
1936, 49 STAT. 1198. 

FN3  SEE FIELD, "THE EFFECT OF AN UNCONSTITUTIONAL STATUTE"; 42 YALE
LAW JOURNAL 779; 45 YALE LAW JOURNAL 1533; 48 HARVARD LAW REVIEW 1271;
25 VIRGINIA LAW REVIEW 210. 

FN4  SEE DRAINAGE DISTRICT NO. 2 V. MERCANTILE-COMMERCE BANK, 69 F.2D
138; IN RE DRAINAGE DISTRICT NO. 7, 21 F.SUPP.  798. 

FN5  SEE, ALSO, MILLER V. TYLER, 58 N.Y. 477, 480; DRINKARD V. ODEN,
150 ALA. 475, 477, 478; 43 SO. 578; PULASKI AVENUE, 220 PA. 276, 279,
280; 69 A. 749; PEOPLE V. RUSSEL, 283 ILL. 520, 524; 119 N.E. 617; BECK
V. STATE, 196 WIS. 242, 250; 219 N.W. 197. 
..END :




















POSTAL S.S. CORP. V. EL ISLEO, 308 U.S. 378 


NO. 73.  ARGUED DECEMBER 12, 1939.  - DECIDED JANUARY 2, 1940.  - 101
F.2D 4, REVERSED. 


1.  UNDER RULES II AND VII OF THE BOARD OF SUPERVISING INSPECTORS,
WHEN TWO STEAMSHIPS ARE ON CROSSING COURSES, THE PRIVILEGED VESSEL HAS
NO ABSOLUTE RIGHT TO KEEP HER COURSE AND SPEED, REGARDLESS OF DANGER
INVOLVED; HER RIGHT TO MAINTAIN HER PRIVILEGE ENDS WHEN THERE IS DANGER
OF COLLISION; AND, IN THE PRESENCE OF THAT DANGER, BOTH VESSELS MUST BE
STOPPED AND BACKED IF NECESSARY, UNTIL SIGNALS FOR PASSING WITH SAFETY
HAVE BEEN MADE AND UNDERSTOOD.  P. 382. 

2.  THESE RULES SHOULD BE CONSTRUED WITH ARTICLE 27, AND ARE NOT
ESSENTIALLY INCONSISTENT WITH ARTICLES 19-23, OF THE INLAND RULES
ESTABLISHED BY ACT OF JUNE 7, 1897, C. 4, SEC. 2, 30 STAT. 103, 33
U.S.C. 157, AND ARE VALID.  PP. 385, 388. 

POSTAL STEAMSHIP CORP. V. EL ISLEO.* 

*TOGETHER WITH NO. 74, POSTAL STEAMSHIP CORP. V. SOUTHERN PACIFIC
CO., ALSO ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 532, TO REVIEW THE AFFIRMANCE OF DECREES OF THE
DISTRICT COURT, IN ADMIRALTY, 20 F.SUPP.  373, WHICH DISMISSED A LIBEL
BROUGHT BY THE PRESENT PETITIONER AND AWARDED DAMAGES TO THE
RESPONDENT, IN A COLLISION CASE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE STEAMER EASTERN GLADE, OWNED BY PETITIONER, COLLIDED WITH THE
STEAMER EL ISLEO, OWNED BY RESPONDENT, IN THE WATERS OF BALTIMORE
HARBOR.  EACH OWNER FILED A LIBEL AGAINST THE VESSEL OF THE OTHER.  THE
DISTRICT COURT FOUND THAT THE EASTERN GLADE WAS SOLELY AT FAULT (20
F.SUPP.  373) AND DECREES DISMISSING PETITIONER'S SUIT AND AWARDING
DAMAGES TO RESPONDENT WERE AFFIRMED BY THE CIRCUIT COURT OF APPEALS. 
101 F.2D 4.  IN THE VIEW THAT THERE WAS INVOLVED AN IMPORTANT QUESTION
OF MARITIME LAW WHICH HAD NOT BEEN, AND SHOULD BE, SETTLED BY THIS
COURT, CERTIORARI WAS GRANTED. 

THAT QUESTION IS SAID TO ARISE FROM RULINGS OF THE CIRCUIT COURT OF
APPEALS WITH RESPECT TO THE VALIDITY OF RULES II AND VII OF THE BOARD
OF SUPERVISING INSPECTORS FN1  IN THE LIGHT OF THE APPLICABLE
PROVISIONS OF THE ACT OF CONGRESS.  FN2  SEE THE FULTON, 54 F.2D 467,
468. 

THE FACTS ARE THUS STATED BY THE CIRCUIT COURT OF APPEALS: 

"THE COLLISION OCCURRED IN THE WATERS OF BALTIMORE HARBOR NEAR THE
JUNCTION OF CURTIS BAY CHANNEL WITH FORT MCHENRY CHANNEL.  THE LATTER
IS ABOUT 600 FEET WIDE AND RUNS IN A NORTHWESTERLY DIRECTION TOWARDS
BALTIMORE; THE FORMER, RUNNING NEARLY EAST AND WEST, COMES INTO FORT
MCHENRY CHANNEL FROM THE WEST BUT DOES NOT CROSS IT.  THE NIGHT WAS
CLEAR, THE TIDE EBB, AND A 15 MILE BREEZE WAS BLOWING FROM THE
NORTHWEST.  THE STEAMSHIP EASTERN GLADE, LIGHT, WAS BOUND OUT OF CURTIS
BAY CHANNEL AND WAS INTENDING TO TURN LEFT INTO FORT MCHENRY CHANNEL
AND PROCEED TO BALTIMORE.  THE STEAMER EL ISLEO, LADEN WITH 1,000 TONS
OF STEEL ORE, ALSO BOUND FOR BALTIMORE, WAS PROCEEDING UP FORT MCHENRY
CHANNEL AT FULL SPEED - ABOUT EIGHT MILES THROUGH THE WATER, AS SHE WAS
WORKING ONLY ONE BOILER.  WHEN THE VESSELS SIGHTED EACH OTHER THEY WERE
MORE THAN A MILE APART, THE EL ISLEO BEING ABOUT FOUR POINTS ON THE
STARBOARD BOW OF THE EASTERN GLADE.  THE LATTER STOPPED HER ENGINES AND
SHORTLY THEREAFTER SOUNDED A TWO BLAST SIGNAL TO INDICATE, AS HER
MASTER SAYS, THAT HIS COURSE WAS TO THE LEFT AND UP FORT MCHENRY
CHANNEL.  EL ISLEO ANSWERED THE TWO BLAST SIGNAL WITH AN ALARM FOLLOWED
BY ONE BLAST TO INDICATE THAT SHE WOULD KEEP HER COURSE AND SPEED. 
CAPTAIN KORN OF EL ISLEO TESTIFIED THAT THE EASTERN GLADE RESPONDED
WITH FOUR BLASTS FOLLOWED BY ONE, WHILE HER CAPTAIN SAYS SHE RESPONDED
WITH THREE BLASTS TO INDICATE THAT SHE WAS REVERSING HER ENGINES.  EL
ISLEO KEPT ON UNTIL SHE REACHED A BUOY JUST OPPOSITE CURTIS BAY
CHANNEL, WHEN, BELIEVING COLLISION IMMINENT, SHE PUT HER RUDDER HARD
RIGHT AND SWUNG OUT OF FORT MCHENRY CHANNEL TO HER STARBOARD.  THE
EASTERN GLADE, ALTHOUGH HER MASTER TESTIFIED THAT HE INTENDED TO HOLD
BACK IN CURTIS BAY CHANNEL UNTIL EL ISLEO HAD PASSED THE JUNCTION, CAME
CLEAR ACROSS FORT MCHENRY CHANNEL AND BROUGHT HER STEM INTO CONTACT
WITH THE PORT SIDE OF EL ISLEO ABOUT AMIDSHIPS.  THE PLACE OF COLLISION
WAS EAST OF FORT MCHENRY CHANNEL.  THE DISTRICT COURT DID NOT DETERMINE
HOW FAR TO THE EAST, BUT MCDONALD TESTIFIED IT WAS ABOUT 200 YARDS." 

AFTER REFERRING TO THE QUESTION WHETHER THE VESSELS WERE ON CROSSING
COURSES AS THE DISTRICT COURT HAD HELD, OR WHETHER THE SITUATION WAS
ONE OF SPECIAL CIRCUMSTANCES, AS PETITIONER CONTENDED, THE COURT OF
APPEALS CONTINUED: 

"IT IS NOT DISPUTED THAT EL ISLEO'S COURSE UP FORT MCHENRY CHANNEL
WAS ALWAYS APPARENT TO THE EASTERN GLADE.  BUT THE LATTER'S COURSE WAS
NOT IMMEDIATELY APPARENT TO EL ISLEO; WHEN THE EASTERN GLADE SHOULD
REACH THE END OF CURTIS BAY CHANNEL, SHE MIGHT TURN LEFT, SHE MIGHT
TURN RIGHT, OR SHE MIGHT CONCEIVABLY, THOUGH IMPROBABLY, CROSS FORT
MCHENRY CHANNEL, SINCE THERE WAS WATER ENOUGH TO THE EAST OF THAT
CHANNEL, ALTHOUGH NEITHER PIER, PORT NOR ANCHORAGE TO WHICH SHE MIGHT
BE BOUND APPEARS ON THE CHART.  WHEN, HOWEVER, SHE SOUNDED HER TWO
BLAST SIGNAL, SHE INDICATED AN INTENTION EITHER TO CROSS THE BOWS OF EL
ISLEO BY PROCEEDING ACROSS FORT MCHENRY CHANNEL, OR TO TURN TO THE LEFT
AND PROCEED UP THAT CHANNEL.  THE FORMER ALTERNATIVE WOULD CLEARLY
RESULT IN CROSSING COURSES; THE LATTER WOULD RESULT IN CONVERGING
COURSES, SINCE THE EASTERN GLADE'S COURSE, IF PROJECTED, WOULD CARRY
HER INTO THE STARBOARD LANE OF FORT MCHENRY CHANNEL, UNLESS SHE
VIOLATED HER DUTY BY GOING UP ON THE WRONG SIDE.  SUCH CONVERGING
COURSES INVOLVE THE VERY RISK THAT RESULTED IN THE COLLISION, AND THE
RIGHTS AND DUTIES OF THE VESSELS ARE GOVERNED BY ARTICLES 19, 22 AND 23
OF THE INLAND RULES, 33 U.S.C.A., SECS. 204, 207, 208.  ...
ACCORDINGLY, THE DISTRICT COURT WAS RIGHT IN TREATING THE SITUATION AS
ONE OF CROSSING COURSES." 

THE ARTICLES OF THE INLAND RULES ESTABLISHED BY CONGRESS  FN3
PROVIDE: 

"ART. 19.  WHEN TWO STEAM-VESSELS ARE CROSSING, SO AS TO INVOLVE RISK
OF COLLISION, THE VESSEL WHICH HAS THE OTHER ON HER OWN STARBOARD SIDE
SHALL KEEP OUT OF THE WAY OF THE OTHER. 

"ART. 21.  WHERE, BY ANY OF THESE RULES, ONE OF THE TWO VESSELS IS TO
KEEP OUT OF THE WAY, THE OTHER SHALL KEEP HER COURSE AND SPEED. 

"ART. 22.  EVERY VESSEL WHICH IS DIRECTED BY THESE RULES TO KEEP OUT
OF THE WAY OF ANOTHER VESSEL SHALL, IF THE CIRCUMSTANCES OF THE CASE
ADMIT, AVOID CROSSING AHEAD OF THE OTHER. 

"ART. 23.  EVERY STEAM-VESSEL WHICH IS DIRECTED BY THESE RULES TO
KEEP OUT OF THE WAY OF ANOTHER VESSEL SHALL, ON APPROACHING HER, IF
NECESSARY, SLACKEN HER SPEED, OR STOP OR REVERSE." 

APPLYING THESE STATUTORY PROVISIONS, AND VIEWING THE SITUATION AS ONE
OF "CROSSING COURSES," THE COURT OF APPEALS FOUND THAT NO FAULT
APPEARED IN THE NAVIGATION OF EL ISLEO, THE "PRIVILEGED VESSEL."  THE
FAULT OF THE EASTERN GLADE WAS FOUND TO BE GLARING AND ALONE SUFFICIENT
TO ACCOUNT FOR THE DISASTER. 

PETITIONER DOES NOT CONTEST THE RULING THAT THE EASTERN GLADE WAS AT
FAULT BUT INSISTS THAT EL ISLEO WAS ALSO AT FAULT.  PETITIONER ARGUES
THAT EL ISLEO VIOLATED RULES II AND VII OF THE SUPERVISING INSPECTORS,
PURPORTING TO HAVE BEEN ADOPTED UNDER THE AUTHORITY OF THE STATUTE. 
FN3 THESE RULES ARE AS FOLLOWS:  FN4 

"RULE II.  STEAM VESSELS ARE FORBIDDEN TO USE WHAT HAS BECOME
TECHNICALLY KNOWN AMONG PILOTS AS 'CROSS SIGNALS,' THAT IS, ANSWERING
ONE WHISTLE WITH TWO, AND ANSWERING TWO WHISTLES WITH ONE. 

"RULE VII.  WHEN TWO STEAM VESSELS ARE APPROACHING EACH OTHER AT
RIGHT ANGLES OR OBLIQUELY SO AS TO INVOLVE RISK OF COLLISION, OTHER
THAN WHEN ONE STEAM VESSEL IS OVERTAKING ANOTHER, THE STEAM VESSEL
WHICH HAS THE OTHER ON HER OWN PORT SIDE SHALL HOLD HER COURSE AND
SPEED; AND THE STEAM VESSEL WHICH HAS THE OTHER ON HER OWN STARBOARD
SIDE SHALL KEEP OUT OF THE WAY OF THE OTHER BY DIRECTING HER COURSE TO
STARBOARD SO AS TO CROSS THE STERN OF THE OTHER STEAM VESSEL, OR, IF
NECESSARY TO DO SO, SLACKEN HER SPEED OR STOP OR REVERSE. 

"IF FROM ANY CAUSE THE CONDITIONS COVERED BY THIS SITUATION ARE SUCH
AS TO PREVENT IMMEDIATE COMPLIANCE WITH EACH OTHER'S SIGNALS, THE
MISUNDERSTANDING OR OBJECTION SHALL BE AT ONCE MADE APPARENT BY BLOWING
THE DANGER SIGNAL, AND BOTH STEAM VESSELS SHALL BE STOPPED AND BACKED
IF NECESSARY, UNTIL SIGNALS FOR PASSING WITH SAFETY ARE MADE AND
UNDERSTOOD." 

PETITIONER SAYS THAT THESE RULES ARE NOT INCONSISTENT WITH THE
STATUTE AND HAVE THE FORCE OF LAW; THAT THEY PROVIDE IN SUBSTANCE "THAT
WHERE THE SO-CALLED PRIVILEGED VESSEL IN A CROSSING SITUATION RECEIVES
AN UNACCEPTABLE PROPOSAL TO CROSS AHEAD, THE PRIVILEGED VESSEL MAY NOT
MAINTAIN HER COURSE AND SPEED UNTIL COLLISION BECOMES IMMINENT BUT MUST
AT ONCE SOUND DANGER SIGNALS AND STOP AND BACK IF NECESSARY UNTIL A
SAFE PASSAGE HAS BEEN AGREED UPON."  HENCE, IT IS ARGUED, THAT EL ISLEO
WAS REQUIRED TO "STOP, AND REVERSE IF NECESSARY," WHEN THE EASTERN
GLADE SOUNDED HER TWO-BLAST SIGNAL, AND THAT THE ONLY QUESTION HERE IS
AS TO THE VALIDITY OF THE INSPECTORS' REQUIREMENTS. 

RESPONDENT CONTENDS THAT THE STATUTORY PROVISIONS OF ARTICLES 19-23
GOVERN; THAT IT WAS NOT ONLY THE PRIVILEGE BUT THE DUTY OF EL ISLEO TO
"KEEP HER COURSE AND SPEED"; THAT IT WAS NOT THE INTENTION OF THE
SUPERVISING INSPECTORS TO MODIFY THAT AFFIRMATIVE DUTY; THAT EL ISLEO
WAS NOT BOUND TO AGREE TO THE TWO-BLAST SIGNAL FROM THE EASTERN GLADE;
THAT THE SIGNALS HAD BEEN MADE AND WERE UNDERSTOOD BY EACH VESSEL AND
THE COLLISION WAS DUE TO THE MISCALCULATION OF THE MASTER OF THE
EASTERN GLADE; AND THAT IF THERE WERE ANY ERRORS IN EL ISLEO'S
NAVIGATION THEY WERE ERRORS IN EXTREMIS FOR WHICH SHE IS NOT LIABLE. 

THE INSPECTORS' PROHIBITION AGAINST "CROSS SIGNALS," FOUND IN RULE
II, WAS ORIGINALLY APPLICABLE TO "VESSELS APPROACHING EACH OTHER FROM
OPPOSITE DIRECTIONS"  FN5  BUT WAS AMENDED SO THAT ITS TERMS APPLY TO
CROSSING SITUATIONS AS WELL.  FN6  THE FULTON, SUPRA.  BUT THE COURT OF
APPEALS IN A NUMBER OF DECISIONS INVOLVING CROSSING SITUATIONS HAS
DISREGARDED THE INSPECTORS' RULE AND HAS "EXONERATED A VESSEL WHICH
PRESSED HER STATUTORY PRIVILEGE BY CROSSING THE SIGNAL AND HOLDING HER
COURSE AND SPEED."  FN7  ID.  IT IS UNNECESSARY TO REVIEW THE MANY
CASES WHICH THE PRESENT PARTIES CITE, AS THE COURT ITSELF HAS
SUMMARIZED ITS POSITION: 

"OUR REASONING HAS BEEN, THAT, AS THE STATUTE (INLAND RULES) ARTICLE
21(33 U.S.C.A., SEC. 206), PUTS A DUTY UPON THE PRIVILEGED SHIP TO KEEP
HER COURSE AND SPEED, NO RULE CAN BE VALID WHICH AFFECTS TO RELIEVE HER
OF IT, AND THAT SHE MAY ANNOUNCE HER DETERMINATION TO INSIST BY
CROSSING THE FIRST SIGNAL.  THE DOCTRINE HAS BEEN TOO LONG AND TOO
REPEATEDLY ESTABLISHED TO ALLOW ANY QUESTION NOW, BUT IT IS PLAIN THAT
THE INSPECTORS HAVE NEVER ASSENTED TO IT."  ID. 

ALTHOUGH THE COURT OF APPEALS, AFTER MAKING THIS STATEMENT IN THE
FULTON, SAID THAT, AS THE COURT WAS THEN CONSTITUTED, IT COULD NOT SEE
ANY NECESSARY INCONSISTENCY BETWEEN THE INSPECTORS' RULE AND THE
STATUTE, THE COURT CONCLUDED THAT "UNLESS THE SUPREME COURT CHOOSES
FINALLY TO SETTLE THE WHOLE MATTER OTHERWISE," IT HAD NO OPTION "IN
CROSSING SITUATIONS" AND WOULD "CONTINUE TO DISREGARD THE RULE."  THE
FULTON, HOWEVER, PRESENTED A "HEAD-ON SITUATION," AND THE COURT OF
APPEALS, FEELING THAT IT WAS NOT COMMITTED IN SUCH A CASE, DECIDED THAT
THE STEAMSHIP THERE IN QUESTION WAS "AT FAULT FOR CROSSING THE
SIGNAL."  ID., P. 469. 

IN THE INSTANT CASE, THE COURT OF APPEALS AGAIN REFERRED TO THE RULE
AS ESTABLISHED IN THE SECOND CIRCUIT, "THAT IN A CROSSING SITUATION THE
PRIVILEGED VESSEL MAY 'CROSS' THE SIGNAL OF THE BURDENED VESSEL AND
HOLD HER COURSE AND SPEED UNTIL IT BECOMES EVIDENT THAT THE BURDENED
VESSEL EITHER CANNOT OR WILL NOT KEEP OUT OF THE WAY."  AND THE COURT
OBSERVED THAT ALTHOUGH THIS RULE WAS CRITICISED IN THE FULTON, IT WAS
THOUGHT TO BE "TOO FIRMLY ESTABLISHED TO BE DEPARTED FROM UNTIL THE
SUPREME COURT SPEAKS."  THE COURT ADDED THAT IT STILL ADHERED TO THAT
VIEW.  101 F.2D, P. 6. 

WE MAY ASSUME THAT THE SUPERVISING INSPECTORS HAD NO INTENTION TO
DEPART FROM THE STATUTE UNDER WHICH THEY CLAIMED AUTHORITY TO MAKE
THEIR REGULATIONS.  AND ARTICLES 19-23 OF THE STATUTE ARE TO BE READ IN
THE LIGHT OF ARTICLE 27 WHICH HAS THE FOLLOWING CONTROLLING
QUALIFICATION: 

"ART. 27.  IN OBEYING AND CONSTRUING THESE RULES DUE REGARD SHALL BE
HAD TO ALL DANGERS OF NAVIGATION AND COLLISION, AND TO ANY SPECIAL
CIRCUMSTANCES WHICH MAY RENDER A DEPARTURE FROM THE ABOVE RULES
NECESSARY IN ORDER TO AVOID IMMEDIATE DANGER." 

MOREOVER, THE INSPECTORS EXPRESSLY RECOGNIZE AND FOLLOW THE STATUTE
IN PROVIDING IN RULE VII, FIRST PARAGRAPH, THAT "THE STEAM VESSEL WHICH
HAS THE OTHER ON HER OWN PORT SIDE SHALL HOLD HER COURSE AND SPEED; AND
THE STEAM VESSEL WHICH HAS THE OTHER ON HER OWN STARBOARD SIDE SHALL
KEEP OUT OF THE WAY OF THE OTHER BY DIRECTING HER COURSE TO STARBOARD
SO AS TO CROSS THE STERN OF THE OTHER STEAM VESSEL, OR, IF NECESSARY TO
DO SO, SLACKEN HER SPEED OR STOP OR REVERSE."  THE SECOND PARAGRAPH OF
RULE VII, PROVIDING FOR THE STOPPAGE AND BACKING OF BOTH VESSELS IF
NECESSARY "UNTIL SIGNALS FOR PASSING WITH SAFETY ARE MADE AND
UNDERSTOOD," WAS CLEARLY INTENDED TO APPLY TO THE DANGEROUS SITUATION
ENVISAGED IN ARTICLE 27 OF THE STATUTE. 

THE GROUNDS FOR CRITICISING THE RULINGS OF THE COURT OF APPEALS OF
THE SECOND CIRCUIT IN DISREGARDING THE INSPECTORS' REQUIREMENT CANNOT
BE BETTER STATED THAN IN THE COURT'S OWN LANGUAGE IN THE FULTON.  AFTER
REFERRING TO ITS FORMER DECISIONS, BY WHICH IT FELT ITSELF BOUND, THE
COURT OBSERVED THAT "CONCEDEDLY THERE COMES A TIME WHEN THE PRIVILEGED
VESSEL MUST YIELD"; THAT THERE IS NEVER A "RIGHT OF WAY INTO
COLLISION"; THAT THE POINT AT BEST "IS ONE OF DEGREE"; AND THAT IF THE
QUESTION WERE RES INTEGRA THE INSPECTORS' RULE WOULD BE HELD VALID. 
THE COURT CONTINUED:  "THE INSPECTORS APPARENTLY BELIEVE THAT IN THE
GREATER NUMBER OF CASES IT WILL CONDUCE TO COLLISION TO ALLOW A PILOT
TO KEEP ON IN THE FACE OF A PROPOSAL BY THE APPROACHING VESSEL THAT SHE
PUT HERSELF ACROSS HIS BOWS.  TRUE, THE PROPOSER OFTEN WILL NOT ACT
WITHOUT CONSENT; BUT IT IS CERTAINLY POSSIBLE THAT PRUDENCE FORBIDS
SPECULATION AS TO WHETHER HE HAS STILL TIME OR DISPOSITION TO KEEP OUT
OF THE WAY.  AGAIN AND AGAIN CASES ARISE IN WHICH THE PROPOSAL IS
REPEATED, THE VESSELS COMING NEARER ALL THE TIME; SOMETIMES IT IS
REPEATED EVEN AFTER IT HAS BEEN CROSSED BY A REFUSAL.  NO SUBSTANTIAL
INTEREST IS AT STAKE EXCEPT TO ESCAPE COLLISION WHICH WILL CERTAINLY BE
AVOIDED IF BOTH STOP."  STOPPING "IS MORE LIKELY TO AVOID DISASTER THAN
GOING ON IN THE TEETH OF WHAT IS AT LEAST A PROPOSAL, AND MAY BE A
DECLARATION."  SO, THE COURT THOUGHT THAT THE SITUATION WAS A PROPER
ONE "FOR THE EXERCISE OF THE INSPECTORS' FUNCTION IN PROVIDING FOR
CASES NOT COVERED EXPLICITLY."  THE COURT COULD NOT SEE "ANY CONFLICT
WITH THE STATUTE, UNLESS THAT BE READ WITHOUT REGARD TO ITS PURPOSE." 
FOR ARTICLES 19 AND 21 "DO NOT REQUIRE ANY SIGNALS AT ALL"; AND "IF ONE
IS GIVEN PROPOSING A DANGEROUS COURSE," THE COURT THOUGHT IT "TOO
VERBAL AND RIGID AN INTERPRETATION TO SAY THAT THE PRIVILEGED VESSEL IS
INEVITABLY STILL BOUND; AT LEAST OFFICIALS, VESTED WITH GENERAL
AUTHORITY, ARE NOT HELPLESS TO MEET THE SITUATION BY A RULE."  AND
AFTER NOTING THAT ARTICLE 27 OF THE STATUTE AUTHORIZED A DEPARTURE "TO
AVOID IMMEDIATE DANGER," THE COURT POSED THE QUESTION - "CAN IT BE THAT
THOUGH VESSELS THEMSELVES MAY SO DEPART, THE INSPECTORS MAY NOT SAY
THAT A SITUATION LIKELY TO BE DANGEROUS SHALL BE TREATED AS SUCH?" 

WE ARE IN ACCORD WITH THE CRITICISM THUS EFFECTIVELY EXPRESSED BY THE
COURT OF APPEALS OF ITS ESTABLISHED RULE, AND WE THINK THAT THE COURT
SHOULD BE RELIEVED OF ITS ASSUMED OBLIGATION TO FOLLOW ITS FORMER
DECISIONS HOLDING THE INSPECTORS' REQUIREMENT INVALID.  WE THINK THAT
INSPECTORS' RULE II SHOULD BE READ IN CONNECTION WITH THEIR RULE VII
AND THAT BOTH SHOULD BE CONSTRUED IN THE LIGHT OF THE STATUTORY
PROVISION IN ARTICLE 27. 

THE PLAIN PURPOSE OF THE INSPECTORS' RULES IS TO MINIMIZE THE DANGER
OF COLLISION.  THE SO-CALLED PRIVILEGED VESSEL HAS NO ABSOLUTE RIGHT TO
KEEP HER COURSE AND SPEED REGARDLESS OF THE DANGER INVOLVED IN THAT
ACTION.  HER RIGHT TO MAINTAIN HER PRIVILEGE ENDS WHEN THERE IS DANGER
OF COLLISION AND IN THE PRESENCE OF THAT DANGER BOTH VESSELS MUST BE
"STOPPED AND BACKED IF NECESSARY, UNTIL SIGNALS FOR PASSING WITH SAFETY
ARE MADE AND UNDERSTOOD." 

IN THE QUOGUE, 47 F.2D 873, WHERE THE COURT OF APPEALS OF THE SECOND
CIRCUIT HAD BEFORE IT A "HEAD-ON SITUATION," THE COURT CONDEMNED A
VESSEL "FOR CROSSING SIGNALS AND INSISTING UPON HER RIGHTS."  THAT
VESSEL WAS THE TRANSFER AND THE RIGHT INSISTED UPON WAS THAT OF PORT TO
PORT PASSAGE.  THE FAULT OF THE OTHER VESSEL, THE QUOGUE, IN
UNDERTAKING TO CROSS THE BOW OF THE TRANSFER WAS FOUND TO BE "MOST
GLARING," BUT THE TRANSFER WAS ALSO HELD AT FAULT BECAUSE HER MASTER
WAS NOT JUSTIFIED IN ACTING ON THE ASSUMPTION THAT THE QUOGUE WOULD NOT
CARRY OUT THE MANEUVER INDICATED BY HER SIGNALS UNLESS HE CONSENTED. 
HE DID NOT "REVERSE AS PROMPTLY AS HE SHOULD," FOR WHEN THE DANGEROUS
SITUATION WAS PRESENTED "HE WAS NOT PRIVILEGED TO CONTINUE ON HIS
COURSE ON THE CHANCE THAT THE OTHER VESSEL WOULD CHANGE HER ANNOUNCED
PURPOSE IF HE REFUSED TO CONSENT."  THE COURT OF APPEALS APTLY SAID:
"IT IS A HARD RULE WHICH REQUIRES A MASTER WHEN HE SEES ANOTHER VESSEL
ABOUT TO CROSS HIS BOW WITH WANTON DISREGARD OF HIS RIGHTS TO STOP AND
ALLOW THE ARROGANT USURPER TO PURSUE HIS WRONGFUL COURSE.  BUT SAFETY
IS BETTER THAN PRIDE; AND HOWEVER SLIGHT THE HOPE THAT RULES TO PROMOTE
SAFETY WILL BE OBSERVED UNDER SUCH CIRCUMSTANCES, WHATEVER COURTS MAY
SAY, THE VESSELS MUST BE JUDGED ACCORDING TO THEIR LEGAL DUTIES." 

THE COURT OF APPEALS IN THE FULTON CONSIDERED THESE OBSERVATIONS IN
THE QUOGUE TO BE PERTINENT, AND WE THINK THAT THEY ARE PERTINENT TO A
DANGEROUS SITUATION ARISING IN CONNECTION WITH CROSSING COURSES.  WE
SEE NO SUFFICIENT GROUND FOR A DISTINCTION IN UPHOLDING AND APPLYING
THE INSPECTORS' REQUIREMENTS IN SUCH CASES. 

WE DEAL SIMPLY WITH THE QUESTION PRESENTED WITH RESPECT TO THE
VALIDITY OF THE INSPECTORS' RULES HERE IN QUESTION.  WE HOLD THESE
RULES ARE NOT ESSENTIALLY INCONSISTENT WITH THE STATUTE AND ARE VALID,
BOTH THE STATUTORY PROVISIONS AND THE INSPECTORS' RULES BEING DESIGNED
TO PROMOTE SAFETY IN SITUATIONS FRAUGHT WITH DANGER.  WE DO NOT PASS,
OR INTIMATE ANY OPINION, UPON THE PARTICULAR FACTS OF THE INSTANT CASE,
AS IT IS THE APPROPRIATE PROVINCE OF THE COURT OF APPEALS TO DEAL WITH
THESE.  AS THE COURT OF APPEALS APPARENTLY DID NOT CONSIDER THE CONDUCT
OF EL ISLEO IN THE LIGHT OF THE INSPECTORS' REQUIREMENTS, BUT THOUGHT,
UNDER THE COMPULSION OF ITS FORMER DECISION, THAT IT MUST DISREGARD
THOSE REQUIREMENTS, WE THINK THAT THE CAUSE SHOULD BE RETURNED TO THE
COURT OF APPEALS TO BE DECIDED BY IT, FREE OF THAT COMPULSION. 

TO AFFORD THAT FREEDOM WE REVERSE THE JUDGMENTS AND REMAND. 
REVERSED. 

FN1  "PILOT RULES FOR CERTAIN INLAND WATERS," ETC., EFFECTIVE, AS
AMENDED, MAY 1, 1912. 

FN2  INLAND RULES, ACT OF JUNE 7, 1897, ARTS. 19, 21-23, 27, 30 STAT.
101, 102; 33 U.S.C. 204, 206-208, 212. 

FN3  ACT OF JUNE 7, 1897, C. 4, SEC. 2, 30 STAT. 102; 33 U.S.C. 157. 

FN4  SEE NOTE 1. 

FN5  SEE RULE III, "PILOT RULES FOR ATLANTIC AND PACIFIC COAST INLAND
WATERS," EDITION OCTOBER 23, 1906. 

FN6  SEE RULE II, EDITION JULY 1, 1907; EDITION MAY 1, 1912. 

FN7  IN THE FULTON, 54 F.2D, P. 468, THE CIRCUIT COURT OF APPEALS
CITED TO THIS EFFECT THE JOHN KING, 49 F. 469; THE CYGNUS, 142 F. 85;
THE TRANSFER NO. 15, 145 F. 503; THE JOHN H. STARIN, 162 F. 146; THE
MONTAUK, 180 F. 697; THE ASHLEY, 221 F. 423. 
..END :






HAGGAR CO. V. HELVERING, 308 U.S. 389 


NO. 176.  ARGUED DECEMBER 15, 1939.  - DECIDED JANUARY 2, 1940.  - 104
F.2D 24, REVERSED. 


1.  A LITERAL READING WHICH LEADS TO ABSURD RESULTS WILL BE AVOIDED
WHEN THE STATUTE CAN BE GIVEN A REASONABLE APPLICATION CONSISTENT WITH
ITS WORDS AND PURPOSE.  P. 394. 

2.  SECTIONS 215 AND 216 OF THE NATIONAL INDUSTRIAL RECOVERY ACT
IMPOSE ON DOMESTIC CORPORATIONS AN ANNUAL CAPITAL STOCK TAX AND AN
ANNUAL TAX ON PROFITS IN EXCESS OF 12 1/2 PER CENT OF THE CAPITAL
STOCK, BOTH CALCULATED ON THE BASIS OF THE VALUE OF THE CAPITAL STOCK
AS DECLARED BY THE CORPORATION'S RETURN FOR THE FIRST YEAR IN WHICH THE
TAX IS IMPOSED, "WHICH DECLARATION OF VALUE CAN NOT BE AMENDED."  FOR
ANY SUBSEQUENT YEAR THE ADJUSTED DECLARED VALUE SHALL BE THE ORIGINAL
DECLARED VALUE AS CHANGED BY CERTAIN PRESCRIBED CAPITAL ADJUSTMENTS. 
HELD: 

(1)  THAT THE PURPOSE IS TO ALLOW THE TAXPAYER TO FIX FOR ITSELF THE
AMOUNT OF THE TAXABLE BASE WITH THE PROVISO THAT THE AMOUNT THUS FIXED
FOR THE FIRST TAXABLE YEAR SHALL BE ACCEPTED, WITH ONLY SUCH CHANGES AS
THE STATUTE PROVIDES, FOR THE PURPOSE OF COMPUTING THE CAPITAL STOCK
AND EXCESS PROFITS TAXES IN THE LATER YEARS.  P. 394. 

(2)  THE PHRASE "FIRST RETURN" MEANS A RETURN FOR THE FIRST YEAR IN
WHICH THE TAXPAYER EXERCISES THE PRIVILEGE OF FIXING ITS CAPITAL STOCK
VALUE FOR TAX PURPOSES.  P. 395. 

(3)  THIS INCLUDES A TIMELY AMENDED RETURN FOR THAT YEAR.  P. 396. 

3.  A TREASURY REGULATION WHICH CHANGES AN EARLIER CONSTRUCTION OF A
STATUTE WITHOUT SERVING ANY GOVERNMENTAL CONVENIENCE OR PURPOSE OR
EMBODYING RESULTS OF SPECIALIZED DEPARTMENTAL KNOWLEDGE OR EXPERIENCE,
AND WHICH CONTRADICTS THE STATUTORY PURPOSES AND THE PLAIN MEANING OF
ITS WORDS, WILL NOT BE FOLLOWED.  P. 398. 

4.  AN AMENDMENT OF A STATUTE PASSED FOR THE PURPOSE OF PRECLUDING
FOR THE FUTURE AN EARLIER ADMINISTRATIVE CONSTRUCTION, HELD NOT AN
ADOPTION OF THAT CONSTRUCTION AS THE ONE INTENDED BY THE ORIGINAL
ENACTMENT.  P. 398. 

5.  SEMBLE THAT RETROACTIVE DECLARATIONS OF LEGISLATIVE INTENT,
PREJUDICIAL TO THOSE WHO HAVE ACTED UNDER AN EARLIER STATUTE WHOSE
CONSTRUCTION SEEMS CLEAR, OUGHT NOT TO BE IMPLIED MORE THAN THE
LEGISLATIVE INTENTION TO GIVE RETROACTIVE OPERATION TO A NEW STATUTE. 
P. 400. 

HAGGAR COMPANY V. HELVERING, COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 533, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 38 B.T.A. 141, APPROVING A DEFICIENCY
ASSESSMENT OF EXCESS PROFITS TAX. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

DECISION IN THIS CASE TURNS ON THE QUESTION WHETHER A CAPITAL STOCK
TAX RETURN FILED PURSUANT TO SEC. 215 OF THE NATIONAL INDUSTRIAL
RECOVERY ACT OF 1933, 48 STAT. 195, 207, MAY BE AMENDED WITHIN THE TIME
FIXED FOR FILING THE RETURN. 

INTERRELATED TAXES ON DOMESTIC CORPORATIONS, NAMELY AN ANNUAL CAPITAL
STOCK TAX AND AN ANNUAL TAX ON PROFITS IN EXCESS OF 12 1/2 PER CENT OF
THE CAPITAL STOCK, CALCULATED ON THE BASIS OF THE VALUE OF THE CAPITAL
STOCK AS FIXED BY THE CORPORATION'S RETURN FOR THE FIRST YEAR IN WHICH
THE TAX IS IMPOSED. 

RESPECT TO CARRYING ON OR DOING BUSINESS FOR ANY PART OF THE TAXABLE
YEAR AT THE RATE OF "$1 FOR EACH $1,000 OF THE ADJUSTED DECLARED VALUE
OF ITS CAPITAL STOCK."  SECTION 215(F) PROVIDES THAT "FOR THE FIRST
YEAR ENDING JUNE 30 IN RESPECT OF WHICH A TAX IS IMPOSED BY THIS
VALUE, AS DECLARED BY THE CORPORATION IN ITS FIRST RETURN UNDER THIS
OF ITS LAST INCOME-TAX TAXABLE YEAR ENDING AT OR PRIOR TO THE CLOSE OF
THE YEAR FOR WHICH THE TAX IS IMPOSED BY THIS SECTION.  ...  FOR ANY
SUBSEQUENT YEAR ENDING JUNE 30, THE ADJUSTED DECLARED VALUE IN THE CASE
OF A DOMESTIC CORPORATION SHALL BE THE ORIGINAL DECLARED VALUE" AS
CHANGED BY CERTAIN PRESCRIBED CAPITAL ADJUSTMENTS OCCASIONED BY
INCREASES AND DECREASES OF CAPITAL OCCURRING AFTER "THE DATE AS OF
WHICH THE ORIGINAL DECLARED VALUE WAS DECLARED."  SECTION 216(A)
IMPOSES AN ANNUAL TAX UPON SO MUCH OF THE NET INCOME OF A CORPORATION
TAXABLE UNDER SEC. 215(A) AS IS IN EXCESS OF 12 1/2 PER CENT OF THE
"ADJUSTED DECLARED VALUE OF ITS CAPITAL STOCK  ...  AS OF THE CLOSE OF
THE PRECEDING INCOME-TAX TAXABLE YEAR (OR AS OF THE DATE OF
ORGANIZATION IF IT HAD NO PRECEDING INCOME-TAX TAXABLE YEAR)  ..." 

IT WILL BE OBSERVED THAT BY SEC. 215(A) AND (F) THE DECLARED VALUE OF
CAPITAL STOCK WHICH IS MADE THE BASIS OF COMPUTATION OF BOTH TAXES IS
NOT REQUIRED TO CONFORM EITHER TO THE ACTUAL OR TO THE NOMINAL CAPITAL
OF THE TAXPAYING CORPORATION; AND THAT THE DECLARED VALUE FOR THE FIRST
TAXABLE YEAR, WITH THE ADDITION OR SUBTRACTION OF SPECIFIED ITEMS OF
SUBSEQUENT CAPITAL GAINS OR LOSSES IS MADE THE BASIS OF THE COMPUTATION
OF BOTH TAXES IN LATER YEARS.  THE TAXPAYER IS THUS LEFT FREE TO
DECLARE ANY VALUE OF CAPITAL STOCK FOR ITS FIRST TAXABLE YEAR WHICH IT
MAY ELECT, BUT SINCE THE DECLARED VALUE FOR THE FIRST YEAR IS A
CONTROLLING FACTOR FOR THE COMPUTATION OF TAXES FOR LATER YEARS, THE
STATUTE PROVIDES THAT THE DECLARATION ONCE MADE CANNOT BE AMENDED. 
BECAUSE OF THE METHOD OF COMPUTATION, INCREASE OR DECREASE IN THE
DECLARED VALUE OF CAPITAL, AND OF THE CORRESPONDING TAX, PRODUCES, AS
THE CASE MAY BE, A DECREASE OR AN INCREASE IN THE TAX ON EXCESS
PROFITS. 

IN AUGUST, 1933, PETITIONER, A TEXAS CORPORATION, MISTAKENLY
BELIEVING THAT IT WAS REQUIRED TO STATE THE PAR VALUE OF ITS ISSUED
CAPITAL STOCK IN ITS TAX RETURN, FILED A TIMELY RETURN FOR THE YEAR
ENDING JUNE 30, 1933, DECLARING THE VALUE OF ITS ENTIRE CAPITAL STOCK
TO BE $120,000 AND PAID THE TAX OF $120.  THE DATE FOR FILING RETURNS
FOR THAT YEAR HAVING BEEN EXTENDED TO SEPTEMBER 29, 1933, T.D. 4368,
4386, PETITIONER BEFORE THAT DATE FILED AN AMENDED RETURN, DECLARING
THE VALUE OF ITS CAPITAL STOCK TO BE $250,000.  ON MARCH 15, 1934,
PETITIONER FILED ITS INCOME AND EXCESS PROFITS TAX RETURN FOR THE
CALENDAR YEAR 1933.  THE COMMISSIONER, HAVING REFUSED TO ACCEPT THE
AMENDED CAPITAL STOCK RETURN, GAVE NOTICE OF A DEFICIENCY IN THE EXCESS
PROFITS TAX CALCULATED UPON THE BASIS OF THE CAPITAL STOCK VALUE OF
$120,000 AS DECLARED IN PETITIONER'S ORIGINAL RETURN. 

THE BOARD OF TAX APPEALS DETERMINED THAT PETITIONER'S CAPITAL STOCK
AND EXCESS PROFITS TAX SHOULD BE COMPUTED ON THE BASIS OF $120,000
CAPITAL STOCK VALUE AS ORIGINALLY STATED INSTEAD OF $250,000 STOCK
VALUE DECLARED IN ITS AMENDED RETURN, FOUND A DEFICIENCY, AND ENTERED
ITS ORDER ACCORDINGLY.  38 B.T.A. 141.  THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT AFFIRMED, HOLDING THAT SEC. 215(F) BY ITS TERMS
PRECLUDED ANY AMENDMENT OF THE TAX RETURN FOR THE FIRST YEAR EVEN
THOUGH MADE WITHIN THE TIME ALLOWED FOR FILING THE RETURN.  104 F.2D
24.  WE GRANTED CERTIORARI OCTOBER 9, 1939, TO RESOLVE A CONFLICT OF
THE DECISION BELOW WITH THAT OF THE COURT OF APPEALS FOR THE SIXTH
CIRCUIT IN GLENN V. OERTEL CO., 97 F.2D 495, AND THAT OF THE COURT OF
CLAIMS IN PHILADELPHIA BREWING CO. V. UNITED STATES, 27 F.SUPP.  583. 

THE COMMISSIONER FOUNDS HIS ARGUMENT IN SUPPORT OF THE DECISION BELOW
UPON A LITERAL READING OF THE INTRODUCTORY SENTENCE OF SEC. 215(F)
ALREADY QUOTED, WHICH, HE ARGUES, PRECLUDES EVEN A TIMELY AMENDMENT OF
THE TAX RETURN FOR THE FIRST YEAR, AND UPON THE ADMINISTRATIVE AND
CONGRESSIONAL INTERPRETATION OF THE STATUTE.  HE INSISTS THAT THE
PHRASE "FIRST RETURN" IN THE CLAUSE "DECLARED VALUE SHALL BE THE VALUE
AS DECLARED BY THE CORPORATION IN ITS FIRST RETURN UNDER THIS SECTION
(WHICH DECLARATION OF VALUE CANNOT BE AMENDED)," MEANS THE FIRST PAPER
FILED BY THE TAXPAYER AS A RETURN, AND THAT THESE WORDS PLAINLY FORBID
ANY AMENDMENT OF THE DECLARED VALUE OF THE CAPITAL STOCK, EVEN THOUGH
MADE WITHIN THE TIME ALLOWED FOR FILING THE RETURN. 

IN MAKING THESE CONTENTIONS THE COMMISSIONER CONCEDES THAT THE AMOUNT
OF THE DECLARED VALUE OF CAPITAL FIXED FOR THE FIRST YEAR IS A MATTER
OF INDIFFERENCE TO THE GOVERNMENT SINCE THE STATUTE LEAVES THE TAXPAYER
FREE TO DECLARE ANY AMOUNT WHICH ITS FANCY MAY CHOOSE AND THAT FOR ANY
REDUCTION IN CAPITAL STOCK EFFECTED BY THE DECLARATION OF A LOW VALUE
OF THE CAPITAL STOCK THERE IS AN ACCOMPANYING INCREASE IN EXCESS
PROFITS TAXES.  HE CONCEDES THAT IF PETITIONER HAD FILED BUT A SINGLE
RETURN ON THE DATE OF FILING THE AMENDED RETURN, STATING THE VALUE OF
THE CAPITAL STOCK AS $250,000 INSTEAD OF $120,000, THE GOVERNMENT WOULD
HAVE BEEN CONCLUDED BY THE TAXPAYER'S DECLARATION AND THAT IT HAS LONG
BEEN THE PRACTICE OF THE DEPARTMENT, IN THE CASES OF OTHER TYPES OF TAX
TO ACCEPT AN AMENDED RETURN, FILED WITHIN THE PERIOD ALLOWED FOR FILING
RETURNS, AS THE RETURN OF THE TAXPAYER FOR THE TAXABLE YEAR.  HE
CONCEDES ALSO, AS HE LOGICALLY MUST, THAT THE ARGUMENT LEADS TO THE
CONCLUSION THAT A MISTAKE IN THE DECLARATION OF VALUE WHETHER OF LAW OR
OF FACT, HOWEVER SERIOUS AND EXCUSABLE, CANNOT BE CORRECTED BY A TIMELY
AMENDMENT OF THE RETURN. 

ALL STATUTES MUST BE CONSTRUED IN THE LIGHT OF THEIR PURPOSE.  A
LITERAL READING OF THEM WHICH WOULD LEAD TO ABSURD RESULTS IS TO BE
AVOIDED WHEN THEY CAN BE GIVEN A REASONABLE APPLICATION CONSISTENT WITH
THEIR WORDS AND WITH THE LEGISLATIVE PURPOSE.  HAWAII V. MANKICHI, 190
U.S. 197; UNITED STATES V. KATZ, 271 U.S. 354; SORRELLS V. UNITED
STATES, 287 U.S. 435, 446; BURNET V. GUGGENHEIM, 288 U.S. 280, 285;
ARMSTRONG CO. V. NU-ENAMEL CORP., 305 U.S. 315, 332-3.  HERE THE
PURPOSE OF THE STATUTE IS UNMISTAKABLE.  IT IS TO ALLOW THE TAXPAYER TO
FIX FOR ITSELF THE AMOUNT OF THE TAXABLE BASE FOR PURPOSES OF
COMPUTATION OF THE CAPITAL STOCK TAX, BUT WITH THE PROVISO THAT THE
AMOUNT THUS FIXED FOR THE FIRST TAXABLE YEAR SHALL BE ACCEPTED, WITH
ONLY SUCH CHANGES AS THE STATUTE PRESCRIBES FOR THE PURPOSE OF
COMPUTING THE CAPITAL STOCK AND EXCESS PROFITS TAXES IN LATER YEARS. 
CONGRESS THUS AVOIDED THE NECESSITY OF PRESCRIBING A FORMULA FOR
ARRIVING AT THE ACTUAL VALUE OF CAPITAL FOR THE PURPOSE OF COMPUTING
EXCESS PROFITS TAXES, WHICH HAD BEEN FOUND PRODUCTIVE OF MUCH
LITIGATION UNDER EARLIER TAXING ACTS, SEE SEN. REP. 52, 69TH CONG., 1ST
SESS., PP. 11-12; CF. RAY CONSOLIDATED COPPER CO. V. UNITED STATES, 268
U.S. 373, 376.  AT THE SAME TIME IT GUARDED AGAINST LOSS OF REVENUE TO
THE GOVERNMENT THROUGH UNDERSTATEMENTS OF CAPITAL, BY PROVIDING FOR AN
INCREASE IN EXCESS PROFITS TAX UNDER SEC. 216 ENSUING FROM SUCH
UNDERSTATEMENTS. 

IT IS PLAIN THAT NONE OF THESE PURPOSES WOULD HAVE BEEN THWARTED AND
NO INTEREST OF THE GOVERNMENT WOULD HAVE BEEN HARMED HAD THE
COMMISSIONER, IN CONFORMITY TO ESTABLISHED DEPARTMENTAL PRACTICE,
ACCEPTED THE PETITIONER'S AMENDED DECLARATION.  IT IS EQUALLY PLAIN
THAT BY ITS REJECTION PETITIONER HAS BEEN DENIED AN OPPORTUNITY TO MAKE
A DECLARATION OF CAPITAL STOCK VALUE WHICH IT WAS THE OBVIOUS PURPOSE
OF THE STATUTE TO GIVE, AND THAT DENIAL IS FOR NO OTHER REASON THAN
THAT THE DECLARATION APPEARED IN AN AMENDED INSTEAD OF AN UNAMENDED
RETURN.  WE THINK THAT THE WORDS OF THE STATUTE, FAIRLY READ IN THE
LIGHT OF THE PURPOSE, DISCLOSED BY ITS OWN TERMS, REQUIRE NO SUCH HARSH
AND INCONGRUOUS RESULT. 

RETURNS.  IT SPEAKS OF "DECLARED VALUE" FOR THE FIRST TAX YEAR AND
PROVIDES THAT THE "DECLARATION OF VALUE" CANNOT BE AMENDED.  THE
"DECLARATION OF VALUE" IS THAT OF THE CORPORATION IN ITS "FIRST RETURN
UNDER THIS SECTION."  THE "FIRST RETURN" AS THE CONTEXT SHOWS IS THE
RETURN FOR THE FIRST TAX YEAR OF THE TAXPAYER AND THE CHARACTERIZATION
OF THE RETURN AS "FIRST" IS OBVIOUSLY USED TO DISTINGUISH THE RETURN
MADE FOR THE FIRST YEAR FROM THE RETURN "FOR ANY SUBSEQUENT YEAR" IN
WHICH THE "ADJUSTED DECLARED VALUE" IS REQUIRED BY THE SAME SECTION TO
CONFORM TO A FORMULA BASED ON THE "DECLARED VALUE" FOR THE FIRST YEAR
AND WHICH, FOR THAT REASON, "CANNOT BE AMENDED." 

"FIRST RETURN" THUS MEANS A RETURN FOR THE FIRST YEAR IN WHICH THE
TAXPAYER EXERCISES THE PRIVILEGE OF FIXING ITS CAPITAL STOCK VALUE FOR
TAX PURPOSES, AND INCLUDES A TIMELY AMENDED RETURN FOR THAT YEAR.  A
TIMELY AMENDED RETURN IS AS MUCH A "FIRST RETURN" FOR THE PURPOSE OF
FIXING THE CAPITAL STOCK VALUE IN CONTRADISTINCTION TO RETURNS FOR
SUBSEQUENT YEARS, AS IS A SINGLE RETURN FILED BY THE TAXPAYER FOR THE
FIRST TAX YEAR.  GLENN V. OERTEL CO., SUPRA; PHILADELPHIA BREWING CO.
V. UNITED STATES, SUPRA; SEE ALSO, SIMILARLY CONSTRUING THE PHRASE
"FIRST RETURN" UNDER SEC. 114(B)(4) OF THE REVENUE ACT OF 1934, 48
STAT. 680, 710; C.H. MEAD COAL CO. V. COMMISSIONER, 106 F.2D 388, 390;
CF. PACIFIC NATIONAL CO. V. WELCH, 304 U.S. 191, 194.  THUS READ THE
STATUTE GIVES FULL EFFECT TO ITS OBVIOUS PURPOSES AND TO THE EVIDENT
MEANING OF ITS WORDS.  TO CONSTRUE "FIRST RETURN" AS MEANING THE FIRST
PAPER FILED AS A RETURN, AS DISTINGUISHED FROM THE PAPER CONTAINING A
TIMELY AMENDMENT, WHICH, WHEN FILED IS COMMONLY KNOWN AS THE RETURN FOR
THE YEAR FOR WHICH IT IS FILED, IS TO DEFEAT THE PURPOSES OF THE
STATUTE BY DISSOCIATING THE PHRASE FROM ITS CONTEXT AND FROM THE
LEGISLATIVE PURPOSE IN VIOLATION OF THE MOST ELEMENTARY PRINCIPLES OF
STATUTORY CONSTRUCTION. 

ARTICLE 24 OF TREASURY REGULATIONS 64(1933 ED.), UNDER SEC. 215(F) OF
THE NATIONAL INDUSTRIAL RECOVERY ACT, IN FORCE WHEN THE PETITIONER
FILED ITS AMENDED RETURN, DID NOT CALL FOR ANY DIFFERENT CONSTRUCTION
FROM THAT WHICH WE HAVE INDICATED IS THE CORRECT ONE.  THE ARTICLE MADE
NO MENTION OF THE "FIRST RETURN."  IT POINTED OUT MERELY THAT THE
ORIGINAL DECLARED VALUE WOULD BE THE BASIS OF THE TAX FOR THE FIRST AND
LATER YEARS, AND STATED "THIS VALUE ONCE HAVING BEEN DECLARED MAY NOT
SUBSEQUENTLY BE CHANGED EITHER BY THE CORPORATION OR BY THE
COMMISSIONER."  THIS EVIDENTLY REFERS TO THE PARENTHETICAL CLAUSE OF
SEC. 215(F) "WHICH DECLARATION CANNOT BE AMENDED" WHICH PHRASE
CONCEDEDLY DOES NOT PRECLUDE AN EFFECTIVE DECLARATION OF VALUE IN A
TIMELY AMENDED RETURN.  FN1 

REENACTED AS SECS. 701 AND 702 OF THE 1934 REVENUE ACT, 48 STAT. 680,
769, 770.  THAT ACT, SEC. 703, AMENDED THE NATIONAL INDUSTRIAL RECOVERY
ACT SO AS TO PROVIDE THAT THE CAPITAL STOCK TAX AND EXCESS PROFITS TAX
IMPOSED BY SECS. 215 AND 216 OF THE ACT LAST MENTIONED SHOULD NOT APPLY
RESPECTIVELY TO ANY TAXPAYER IN ANY YEAR EXCEPT THE YEARS ENDING JUNE
30, 1933 AND JUNE 30, 1934.  THE AMENDED REGULATIONS 64(1934 ED.),
RELATING TO SECS. 701 AND 702 OF THE REVENUE ACT OF 1934, ARE PREFACED
WITH THE STATEMENT "IT MUST CONSTANTLY BE BORNE IN MIND THAT THESE
REGULATIONS RELATE ONLY TO THE TAX IMPOSED BY SEC. 701 OF THE REVENUE
ACT OF 1934.  WITH RESPECT TO THE TAX IMPOSED BY SEC. 215 OF THE
NATIONAL INDUSTRIAL RECOVERY ACT CONSULT REGULATIONS 64, EDITION OF
1933."  THIS WARNING WAS REPEATED IN REGULATIONS 64, 1936 EDITION,
UNDER THE CORRESPONDING SECS. 105 AND 106 OF THE 1935 REVENUE ACT, 49
STAT. 1014, 1017-1019. 

SINCE THE REGULATIONS UNDER THE REVENUE ACTS FOR 1934 AND 1935 ARE
THUS MADE INAPPLICABLE TO THE TAXPAYER'S STOCK RETURN UNDER THE
NATIONAL INDUSTRIAL RECOVERY ACT FOR THE YEAR ENDING JUNE 30, 1933,
THEY ARE WITHOUT FORCE FOR PRESENT PURPOSES EXCEPT AS THEY ARE
PERSUASIVE COMMENTARIES ON THE MEANING OF THE LANGUAGE OF SEC. 215(F)
OF THE NATIONAL INDUSTRIAL RECOVERY ACT WHICH WAS CARRIED FORWARD INTO
LATER REVENUE ACTS.  ARTICLE 41(D) OF TREASURY REGULATIONS 64,
PUBLISHED UNDER THE 1934 ACT, DECLARED THAT "FIRST RETURN MEANS THE
FIRST CAPITAL STOCK TAX RETURN FILED BY A CORPORATION FOR ITS FIRST
TAXABLE YEAR," A DEFINITION WHICH WAS CONTINUED IN ARTICLE 44 OF
REGULATIONS 64(1936 ED.), UNDER THE CORRESPONDING SEC. 105 OF THE
REVENUE ACT OF 1935.  ARTICLE 44 OF THE LATTER REGULATION FOR THE FIRST
TIME INFORMED TAXPAYERS THAT AN EFFECTIVE DECLARATION OF VALUE FOR THE
FIRST TAX YEAR COULD NOT BE MADE IN A TIMELY AMENDED RETURN, SAYING, "A
SUBSEQUENT RETURN DECLARING A DIFFERENT VALUE, EVEN THOUGH FILED BEFORE
THE EXPIRATION OF THE PRESCRIBED PERIOD, IS THEREFORE NOT ACCEPTABLE
UNDER THE STATUTE." 

ON THE ARGUMENT THE COMMISSIONER ADMITTED THAT THIS RULING SERVED NO
ADMINISTRATIVE OR GOVERNMENTAL CONVENIENCE OR PURPOSE APART FROM
COMPLIANCE WITH THE SUPPOSED COMMAND OF THE STATUTE.  THERE IS THUS A
COMPLETE ABSENCE OF THOSE REASONS WHICH ORDINARILY LEAD COURTS TO GIVE
PERSUASIVE FORCE TO AN ADMINISTRATIVE CONSTRUCTION AND WHICH JUSTIFY
THEIR ACCEPTANCE OF IT IN PREFERENCE TO THEIR OWN.  THE REGULATIONS
HAVE NOT BEEN CONSISTENT IN THEIR INTERPRETATION OF THE STATUTE AND DO
NOT EMBODY THE RESULTS OF ANY SPECIALIZED DEPARTMENTAL KNOWLEDGE OR
EXPERIENCE.  CF. BREWSTER V. GAGE, 280 U.S. 327, 336; ESTATE OF SANFORD
V. COMMISSIONER, ANTE, P. 39.  NO ONE, NOT EVEN THE GOVERNMENT, WILL BE
PREJUDICED BY ITS REJECTION, AND AS WE HAVE SAID THE CONSTRUCTION FLIES
IN THE FACE OF THE PURPOSES OF THE STATUTE AND THE PLAIN MEANING OF ITS
WORDS.  JUDICIAL OBEISANCE TO ADMINISTRATIVE ACTION CANNOT BE PRESSED
SO FAR. 

IT IS SAID THAT CONGRESS, BY THE CHANGE OF THE LANGUAGE OF THE
CAPITAL STOCK PROVISIONS ADOPTED IN THE 1938 REVENUE ACT HAS ATTRIBUTED
TO THE EARLIER STATUTE THE SAME MEANING AS THAT ASCRIBED TO IT BY THE
ADMINISTRATIVE CONSTRUCTION.  IT IS FAMILIAR DOCTRINE THAT CONGRESS, BY
REENACTING A SECTION OF THE REVENUE ACT WITHOUT CHANGE, APPROVES AND
ADOPTS A CONSISTENT ADMINISTRATIVE CONSTRUCTION OF IT.  BUT HERE THE
ARGUMENT IS THAT BY AMENDMENT OF THE STATUTE, WHICH WOULD PRECLUDE SUCH
A CONSTRUCTION IN THE FUTURE, CONGRESS HAS ALSO DECLARED THAT THE
DEPARTMENTAL CONSTRUCTION WAS THAT INTENDED BY THE EARLIER CONGRESS
WHICH ENACTED THE STATUTE. 

CHANGES IN THE CAPITAL STOCK AND EXCESS PROFITS TAX PROVISIONS,
PRESCRIBED THAT THE "ADJUSTED DECLARED VALUE" SHOULD BE DETERMINED WITH
RESPECT TO THREE YEAR PERIODS, BEGINNING WITH THE YEAR ENDING JUNE 30,
1938, AND DENOMINATED THE FIRST YEAR OF EACH PERIOD A "DECLARATION
YEAR."  SECTION 601(F)(2) PROVIDED THAT THE DECLARED CAPITAL STOCK
VALUE FOR PURPOSES OF THE TAX SHALL BE THE VALUE AS DECLARED BY THE
CORPORATION "IN ITS RETURN FOR SUCH DECLARATION YEAR (WHICH DECLARATION
OF VALUE CANNOT BE AMENDED)."  SINCE, UNDER THE NEW LEGISLATION, THE
RETURN FOR THE DECLARATION YEAR FOR EACH THREE-YEAR PERIOD AND NOT THAT
FOR THE FIRST TAX YEAR OF THE TAXPAYER IS CONTROLLING, THERE WAS NO
OCCASION FOR REPEATING THE PHRASES "FIRST YEAR" AND "FIRST RETURN"
WHICH HAD APPEARED IN THE EARLIER LEGISLATION AND THE NEW SECTION
DROPPED FROM THE STATUTE THE WORDS WHICH HAD GIVEN RISE TO THE EARLIER
ADMINISTRATIVE CONSTRUCTION.  THIS WAS POINTED OUT BY THE HOUSE
COMMITTEE REPORT RECOMMENDING THE AMENDMENT,  FN2  STATING THAT THE
CHANGE WOULD SERVE TO PERMIT THE TAXPAYER TO AMEND ITS DECLARATION BY
TIMELY AMENDMENT OF THE RETURN FOR THE DECLARATION YEAR AND ADDING,
"DENIAL OF ALL OPPORTUNITY FOR CORRECTION APPEARS UNDULY RESTRICTIVE." 

IT MUST BE ASSUMED THAT CONGRESS WAS AWARE THROUGH ITS COMMITTEES OF
THE CHANGE IN THE REGULATIONS WHICH IN 1936 HAD CONSTRUED THE STATUTE
AS PRECLUDING AN EFFECTIVE DECLARATION IN A TIMELY AMENDED RETURN, AND
OF THE LITIGATION THEN PENDING IN THIS CASE AND IN GLENN V. OERTEL CO.,
SUPRA, IN WHICH THE DEPARTMENTAL CONSTRUCTION HAD BEEN CHALLENGED AS
"UNDULY RESTRICTIVE."  IN THE FACE OF THE LEGISLATIVE EXPRESSION OF
DISSATISFACTION WITH THE EARLIER STATUTE AS CONSTRUED, CONGRESSIONAL
PURPOSE TO DECLARE THAT SUCH WAS THE INTENDED MEANING IS NOT TO BE
INFERRED MERELY FROM THE FACT THAT THE AMENDMENT PROVIDING FOR THE
FUTURE SAID NOTHING AS TO THE PAST.  IF WE ARE TO DRAW INFERENCES IT
WOULD SEEM AS PROBABLE THAT CONGRESS WAS CONTENT TO LEAVE THE PROBLEMS
OF THE PAST TO BE SOLVED BY THE COURTS WHERE THEY WERE THEN PENDING,
RATHER THAN TO PRECLUDE THEIR SOLUTION THERE.  ACTION SO AMBIGUOUS IN
ITS IMPLICATIONS AS TO THE PAST IS WANTING IN THAT CERTAINTY AND
EVIDENT PURPOSE WHICH WOULD JUSTIFY ITS ACCEPTANCE AS A LEGISLATIVE
DECLARATION OF WHAT AN EARLIER CONGRESS HAD INTENDED RATHER THAN AN
EFFORT TO MAKE CLEAR THAT WHICH HAD BEEN RENDERED DUBIOUS BY
UNWARRANTED ADMINISTRATIVE CONSTRUCTION.  CF. JORDAN V. ROCHE, 228 U.S.
436, 445; HELVERING V. NEW YORK TRUST CO., 292 U.S. 455; NOBLE V.
OKLAHOMA CITY, 297 U.S. 481, 492.  RETROACTIVE DECLARATIONS OF
LEGISLATIVE INTENT, PREJUDICIAL TO THOSE WHO HAVE ACTED UNDER AN
EARLIER STATUTE WHOSE CONSTRUCTION SEEMS CLEAR, IT WOULD SEEM, OUGHT
NOT TO BE IMPLIED MORE THAN THE LEGISLATIVE INTENTION TO GIVE
RETROACTIVE OPERATION TO A NEW STATUTE.  SEE HASSETT V. WELCH, 303 U.S.
303, 314 AND CASES CITED; CF. NOBLE V. OKLAHOMA CITY, SUPRA.
REVERSED. 

FN1  THE GOVERNMENT CONCEDES IN ITS BRIEF THAT THE PARENTHETICAL
CLAUSE "WHICH DECLARATION CANNOT BE AMENDED" CONTINUED IN THE CAPITAL
STOCK TAX SECTION, SEC. 601, OF THE 1938 REVENUE ACT, 52 STAT. 447,
565, DOES NOT PRECLUDE AN EFFECTIVE DECLARATION OF VALUE IN A TIMELY
AMENDED RETURN FOR THE FIRST TAX YEAR.  IF THE PHRASE "FIRST RETURN" IN
SEC. 215(F) HAD THAT EFFECT, THEN THE PARENTHETICAL PHRASE CONCEDEDLY
PROHIBITING AMENDMENTS IN TAX RETURNS OF LATER YEARS WOULD HAVE BEEN
SUPERFLUOUS. 

FN2  "THE NEW SECTION ALSO ALLEVIATES THE RIGID PROVISION OF SECTION
105(F) OF THE 1935 ACT THAT THE VALUATION SHALL BE AS DECLARED BY THE
CORPORATION IN ITS 'FIRST' RETURN.  ERRORS OF CALCULATION OR OTHER
ERRORS SOMETIMES OCCUR IN FIRST RETURNS, AND DENIAL OF ALL OPPORTUNITY
FOR CORRECTION APPEARS UNDULY RESTRICTIVE.  ACCORDINGLY, THE WORD
'FIRST' AS IT APPEARS THE SECOND TIME IN SECTION 105(F) OF THE 1935
ACT, AS AMENDED, IS ELIMINATED FROM THE CORRESPONDING LANGUAGE
APPEARING IN SUBSECTION (F)(2) OF THE NEW SECTION.  THIS WILL SERVE TO
GIVE A CORPORATION THE RIGHT, SO LONG AS IT ACTS WITHIN THE TIME
ALLOWED FOR FILING ITS RETURN (INCLUDING THE LAST DAY OF ANY EXTENSION
PERIOD) FOR THE YEAR FOR WHICH A DECLARATION OF VALUE IS REQUIRED, TO
FILE SUBSEQUENT RETURNS FOR THAT YEAR SHOWING A DIFFERENT VALUATION,
THE VALUATION SHOWN BY THE LAST TIMELY RETURN BEING BINDING."  H. REPT.
1860, COMMITTEE ON WAYS AND MEANS, 75TH CONG., 3RD SESS., P. 62. 
..END :







A.F. OF L. V. LABOR BOARD, 308 U.S. 401 


NO. 70.  ARGUED DECEMBER 7, 8, 1939.  - DECIDED JANUARY 2, 1940.  - 70
APP. D.C. 62 - 103 F.2D 933, AFFIRMED. 


1.  A CERTIFICATION BY THE NATIONAL LABOR RELATIONS BOARD, UNDER SEC.
9(C) OF THE NATIONAL LABOR RELATIONS ACT, THAT A PARTICULAR
ORGANIZATION OF WORKERS IS THE COLLECTIVE BARGAINING REPRESENTATIVE OF
THE EMPLOYEES IN A DESIGNATED UNIT, IS NOT AN ORDER REVIEWABLE BY THE
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA OR A CIRCUIT COURT OF
APPEALS UNDER SEC. 10(F) OF THE ACT.  P. 403. 

2.  THE ACT DOES NOT PROVIDE FOR COURT REVIEW OF SUCH CERTIFICATIONS
EXCEPT AS INCIDENTAL TO REVIEW OF AN ORDER RESTRAINING AN UNFAIR LABOR
PRACTICE, UNDER SEC. 10.  PP. 404, 407. 

THE QUESTION WHETHER AN INDEPENDENT SUIT MAY BE MAINTAINED IN THE
DISTRICT COURT TO SET ASIDE SUCH A CERTIFICATION UPON THE GROUND THAT
IT IS CONTRARY TO THE STATUTE AND INFLICTS IRREPARABLE INJURY IS NOT
INVOLVED IN THIS CASE.  P. 412. 

3.  THE DUE PROCESS CLAUSE IS NOT INFRINGED BY WITHHOLDING FROM
FEDERAL COURTS JURISDICTION WHICH THEY NEVER POSSESSED.  P. 411. 

AMERICAN FEDERATION OF LABOR ET AL. V. NATIONAL LABOR RELATIONS
BOARD. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, POST, P. 531, TO REVIEW A JUDGMENT DISMISSING FOR WANT OF
JURISDICTION A PETITION TO REVIEW THE CERTIFICATION BY THE NATIONAL
LABOR RELATIONS BOARD OF AN ORGANIZATION OF LONGSHOREMEN AS
REPRESENTATIVE OF WORKERS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION DECISIVE OF THIS CASE IS WHETHER A CERTIFICATION BY THE
NATIONAL LABOR RELATIONS BOARD UNDER SEC. 9(C) OF THE WAGNER ACT, 49
STAT. 449, 453, 29 U.S.C., SUPP. IV, SECS. 151-166, THAT A PARTICULAR
LABOR ORGANIZATION OF LONGSHORE WORKERS IS THE COLLECTIVE BARGAINING
REPRESENTATIVE OF THE EMPLOYEES IN A DESIGNATED UNIT, COMPOSED OF
NUMEROUS EMPLOYERS OF LONGSHORE WORKERS AT PACIFIC COAST PORTS, IS
REVIEWABLE BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA BY THE
PROCEDURE SET UP IN SEC. 10(F) OF THE ACT. 

PETITIONERS, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AND ITS
AFFILIATE, PACIFIC COAST DISTRICT INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION NO. 38, ARE LABOR ORGANIZATIONS, BOTH AFFILIATED WITH THE
PETITIONER, AMERICAN FEDERATION OF LABOR (A.F. OF L.).  IN JANUARY,
1938, THE INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, DISTRICT
NO. 1, A LABOR ORGANIZATION AFFILIATED WITH THE CONGRESS OF INDUSTRIAL
ORGANIZATION (C.I.O.)  PETITIONED THE BOARD FOR AN INVESTIGATION
CONCERNING THE REPRESENTATION OF LONGSHOREMEN ON THE PACIFIC COAST, AND
THAT THE BOARD CERTIFY THE NAME OF THE APPROPRIATE REPRESENTATIVE FOR
COLLECTIVE BARGAINING AS PROVIDED IN SEC. 9(C) OF THE WAGNER ACT. 

THE BOARD DIRECTED AN INVESTIGATION WITH APPROPRIATE HEARINGS, AND A
CONSOLIDATION OF THE PROCEEDING FOR PURPOSES OF HEARING WITH TWO OTHER
PROCEEDINGS ALREADY INITIATED BY LOCALS OF THE LONGSHOREMEN'S UNION. 
PETITIONERS WERE MADE PARTIES TO THE CONSOLIDATED PROCEEDINGS AND
PARTICIPATED IN THE HEARINGS, AT THE CONCLUSION OF WHICH THE BOARD MADE
ITS FINDINGS OF FACT AND OF LAW AND CERTIFIED THAT THE WORKERS WHO DO
LONGSHORE WORK IN THE PACIFIC COAST PORTS FOR THE EMPLOYERS WHICH ARE
MEMBERS OF FIVE DESIGNATED EMPLOYER ASSOCIATIONS OF PACIFIC COAST
SHIPOWNERS OR OF WATERFRONT EMPLOYERS, CONSTITUTE A UNIT APPROPRIATE
FOR THE PURPOSES OF COLLECTIVE BARGAINING WITHIN THE MEANING OF SEC.
9(B) OF THE ACT.  IT ALSO CERTIFIED THAT THE C.I.O. AFFILIATE,
LONGSHOREMEN'S UNION, DISTRICT NO. 1, IS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF ALL THE WORKERS IN SUCH UNIT WITHIN THE MEANING OF
THE ACT.  IN THE MATTER OF SHIPOWNERS' ASSOCIATION OF THE PACIFIC
COAST, 7 N.L.R.B. 1002. 

THE EFFECT OF THE CERTIFICATION, AS PETITIONER ALLEGES, IS THE
INCLUSION IN A SINGLE UNIT, FOR BARGAINING PURPOSES, OF ALL OF THE
LONGSHORE EMPLOYEES OF THE MEMBERS OF THE EMPLOYER ASSOCIATIONS DOING
BUSINESS AT THE WEST COAST PORTS OF THE UNITED STATES, AND TO DESIGNATE
THE C.I.O. AFFILIATE AS THEIR BARGAINING REPRESENTATIVE SO THAT IN THE
CASE OF SOME PARTICULAR EMPLOYERS, THEIR WORKERS WHO ARE NOT ORGANIZED
OR REPRESENTED BY THE C.I.O. AFFILIATE HAVE BEEN DEPRIVED OF
OPPORTUNITY TO SECURE BARGAINING REPRESENTATIVES OF THEIR OWN CHOICE. 
ALTHOUGH THE PETITIONERS WHO ARE AFFILIATED WITH THE A.F. OF L. ASSERT
THAT THEY HAVE IN FACT BEEN SELECTED AS BARGAINING REPRESENTATIVES BY A
MAJORITY OF THE EMPLOYEES OF THEIR RESPECTIVE EMPLOYERS, PETITIONERS
ALLEGE THAT THEY HAVE NEVERTHELESS BEEN PREVENTED FROM ACTING IN THAT
CAPACITY BY THE BOARD'S DESIGNATION OF THE C.I.O. AFFILIATE AS THE
EXCLUSIVE REPRESENTATIVE OF SUCH EMPLOYEES. 

THE PRESENT SUIT WAS BEGUN BY PETITION TO THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA IN WHICH THE PETITIONERS SET FORTH, IN
ADDITION TO THE FACTS ALREADY DETAILED, THAT THEY WERE AGGRIEVED BY THE
"DECISION AND ORDER OF CERTIFICATION OF THE BOARD" IN THAT THE
CERTIFICATE IS CONTRARY TO FACT AND TO LAW; THAT THE WAGNER ACT DOES
NOT CONTEMPLATE OR AUTHORIZE "THE DESIGNATION BY THE BOARD OF AN
EMPLOYEE UNIT CONSTITUTING ALL THE EMPLOYEES OF DIFFERENT EMPLOYERS IN
DIFFERENT AND DISTANT GEOGRAPHICAL DISTRICTS OF THE UNITED STATES." 
THE PETITION PRAYED THAT THE "ORDER OF CERTIFICATION" BE SET ASIDE, IN
SO FAR AS IT ATTEMPTS TO DESIGNATE A SINGLE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR LONGSHORE EMPLOYEES OF MANY EMPLOYERS ON THE PACIFIC
COAST AND DENIES TO A MAJORITY OF THE LONGSHORE EMPLOYEES OF A SINGLE
EMPLOYER THE RIGHT TO SELECT ONE OF THE PETITIONERS AS THEIR EXCLUSIVE
BARGAINING REPRESENTATIVE. 

THE COURT OF APPEALS DISMISSED THE PETITION AS NOT WITHIN THE
JURISDICTION TO REVIEW ORDERS OF THE BOARD CONFERRED UPON IT BY SEC. 10
OF THE WAGNER ACT.  103 F.2D 933.  WE GRANTED CERTIORARI OCTOBER 9,
1939, BECAUSE OF THE IMPORTANCE OF THE QUESTION PRESENTED AND TO
RESOLVE AN ALLEGED CONFLICT OF THE DECISION BELOW WITH THAT OF THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT, IN INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS V. NATIONAL LABOR RELATIONS BOARD, 105 F.2D 598. 

THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, LIKE THE SEVERAL
CIRCUIT COURTS OF APPEALS, IS WITHOUT THE JURISDICTION OVER ORIGINAL
SUITS CONFERRED ON DISTRICT COURTS BY SEC. 24 OF THE JUDICIAL CODE, AS
AMENDED.  28 U.S.C., SEC. 41.  SUCH JURISDICTION AS IT HAS, TO REVIEW
DIRECTLY THE ACTION OF ADMINISTRATIVE AGENCIES, IS SPECIALLY CONFERRED
BY LEGISLATION RELATING SPECIFICALLY TO THE DETERMINATIONS OF SUCH
AGENCIES MADE SUBJECT TO REVIEW, AND PRESCRIBING THE MANNER AND EXTENT
OF THE REVIEW.  HERE, THE PROVISIONS OF THE WAGNER ACT, SEC. 10(F),
WHICH GIVES A RIGHT OF REVIEW TO "ANY PERSON AGGRIEVED BY A FINAL ORDER
OF THE BOARD," DETERMINES THE NATURE AND SCOPE OF THE REVIEW BY THE
COURT OF APPEALS. 

THE SINGLE ISSUE WHICH WE ARE NOW CALLED ON TO DECIDE IS WHETHER THE
CERTIFICATION BY THE BOARD IS AN "ORDER" WHICH, BY RELATED PROVISIONS
OF THE STATUTE, IS MADE REVIEWABLE UPON PETITION TO THE COURT OF
APPEALS FOR THE DISTRICT OR IN AN APPROPRIATE CASE TO A CIRCUIT COURT
OF APPEALS.  THE QUESTION IS DISTINCT FROM ANOTHER MUCH ARGUED AT THE
BAR, WHETHER PETITIONERS ARE PRECLUDED BY THE PROVISIONS OF THE WAGNER
ACT FROM MAINTAINING AN INDEPENDENT SUIT IN A DISTRICT COURT TO SET
ASIDE THE BOARD'S ACTION BECAUSE CONTRARY TO THE STATUTE, AND BECAUSE
IT INFLICTS ON PETITIONERS AN ACTIONABLE INJURY OTHERWISE IRREPARABLE. 

BY THE PROVISIONS OF THE WAGNER ACT THE BOARD IS GIVEN TWO PRINCIPAL
FUNCTIONS TO PERFORM.  ONE, DEFINED BY SEC. 9, WHICH AS ENACTED IS
HEADED "REPRESENTATIVES AND ELECTIONS," IS THE CERTIFICATION, AFTER
APPROPRIATE INVESTIGATION AND HEARING, OF THE NAME OR NAMES OF
REPRESENTATIVES, FOR COLLECTIVE BARGAINING, OF AN APPROPRIATE UNIT OF
EMPLOYEES.  THE OTHER, DEFINED BY SEC. 10, WHICH AS ENACTED IS HEADED
"PREVENTION OF UNFAIR LABOR PRACTICES," IS THE PREVENTION BY THE
BOARD'S ORDER AFTER HEARING AND BY A FURTHER APPROPRIATE PROCEEDING IN
COURT, OF THE UNFAIR LABOR PRACTICES ENUMERATED IN SEC. 8.  ONE OF THE
OUTLAWED PRACTICES IS THE REFUSAL OF AN EMPLOYER TO BARGAIN WITH THE
REPRESENTATIVE OF HIS EMPLOYEES.  SEC. 8(5). 

CERTIFICATION INVOLVES, UNDER SEC. 9(B), DECISION BY THE BOARD
WHETHER "THE UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE BARGAINING
SHALL BE THE EMPLOYER UNIT, CRAFT UNIT, PLANT UNIT, OR SUBDIVISION
THEREOF," AND THE ASCERTAINMENT BY THE BOARD UNDER SEC. 9(C) OF THE
BARGAINING REPRESENTATIVE WHO, UNDER SEC. 9(A) MUST BE "DESIGNATED OR
SELECTED  ...  BY THE MAJORITY OF THE EMPLOYEES IN THE UNIT APPROPRIATE
FOR SUCH (BARGAINING) PURPOSES."  THE BOARD IS AUTHORIZED BY SEC. 9(C)
"WHENEVER A QUESTION AFFECTING COMMERCE ARISES CONCERNING THE
REPRESENTATION OF EMPLOYEES" TO INVESTIGATE "SUCH CONTROVERSY" AND TO
CERTIFY THE NAMES OF THE APPROPRIATE BARGAINING REPRESENTATIVES.  IN
CONDUCTING THE INVESTIGATION IT IS REQUIRED TO PROVIDE FOR APPROPRIATE
HEARING UPON DUE NOTICE "AND MAY TAKE A SECRET BALLOT OF EMPLOYEES, OR
UTILIZE ANY OTHER SUITABLE METHOD" OF ASCERTAINING SUCH
REPRESENTATIVES.  BY SEC. 9(D) WHENEVER AN ORDER OF THE BOARD IS MADE
PURSUANT TO SEC. 10(C) DIRECTING ANY PERSON TO CEASE AN UNFAIR LABOR
PRACTICE AND THERE IS A PETITION FOR ENFORCEMENT OR REVIEW OF THE ORDER
BY A COURT THE BOARD'S "CERTIFICATION AND THE RECORD OF SUCH
INVESTIGATION" IS TO BE INCLUDED IN THE TRANSCRIPT OF THE ENTIRE RECORD
REQUIRED TO BE FILED UNDER SEC. 10(E) OR (F), AND THE DECREE OF THE
COURT ENFORCING, MODIFYING OR SETTING ASIDE THE ORDER OF THE BOARD IS
TO BE MADE AND ENTERED UPON THE PLEADINGS, TESTIMONY AND PROCEEDINGS
SET FORTH IN THE TRANSCRIPT. 

IT IS TO BE NOTED THAT SEC. 9, WHICH IS COMPLETE IN ITSELF, MAKES NO
PROVISION, IN TERMS, FOR REVIEW OF A CERTIFICATION BY THE BOARD AND
AUTHORIZES NO USE OF THE CERTIFICATION OR OF THE RECORD IN A
CERTIFICATION PROCEEDING, EXCEPT IN THE SINGLE CASE WHERE THERE IS A
PETITION FOR ENFORCEMENT OR REVIEW OF AN ORDER RESTRAINING AN UNFAIR
LABOR PRACTICE AS AUTHORIZED BY SEC. 10(C).  IN THAT EVENT THE RECORD
IN THE CERTIFICATION PROCEEDING IS INCLUDED IN THE RECORD BROUGHT UP ON
REVIEW OF THE BOARD'S ORDER RESTRAINING AN UNFAIR LABOR PRACTICE.  IT
THEN BECOMES A PART OF THE RECORD UPON WHICH THE DECREE OF THE
REVIEWING COURT IS TO BE BASED. 

ALL OTHER PROVISIONS FOR REVIEW OF ANY ACTION OF THE BOARD ARE FOUND
IN SEC. 10 WHICH AS ITS HEADING INDICATES RELATES TO THE PREVENTION OF
UNFAIR LABOR PRACTICES.  NOWHERE IN THIS SECTION IS THERE MENTION OF
INVESTIGATIONS OR CERTIFICATIONS AUTHORIZED AND DEFINED BY SEC. 9. 
IN ANY UNFAIR LABOR PRACTICE (LISTED IN SECTION 8) AFFECTING
COMMERCE."  SECTION 10(B) PRESCRIBES THE PROCEDURE OF THE BOARD WHEN
ANY PERSON IS CHARGED WITH ENGAGING IN ANY UNFAIR LABOR PRACTICE, AND
REQUIRES THAT THE PERSON SO CHARGED SHALL BE SERVED WITH A COMPLAINT
AND NOTICE OF HEARING BY THE BOARD WITH OPPORTUNITY TO FILE AN ANSWER
AND BE HEARD.  SECTION 10(C) DIRECTS THE BOARD, IF IT IS OF OPINION, AS
THE RESULT OF THE PROCEEDINGS BEFORE IT, THAT ANY PERSON NAMED IN THE
COMPLAINT HAS ENGAGED IN AN UNFAIR LABOR PRACTICE "TO ISSUE" "AN ORDER"
DIRECTING THAT PERSON TO CEASE THE PRACTICE AND COMMANDING APPROPRIATE
AFFIRMATIVE ACTION.  IF THE BOARD IS OF OPINION THAT THERE HAS BEEN NO
UNFAIR LABOR PRACTICE IT IS DIRECTED "TO ISSUE" "AN ORDER" DISMISSING
THE COMPLAINT.  SECTION 10(E) AUTHORIZES A PETITION TO THE APPROPRIATE
FEDERAL COURT OF APPEALS BY THE BOARD FOR THE ENFORCEMENT OF ITS ORDER
PROHIBITING AN UNFAIR LABOR PRACTICE. 

THIS BRINGS US TO THE PROVISIONS FOR REVIEW OF ACTION TAKEN BY THE
BOARD IN SEC. 10(F) WHICH IS CONTROLLING IN THE PRESENT PROCEEDING. 
THAT SUBDIVISION  FN1  APPEARS AS AN INTEGRAL PART OF SEC. 10.  ALL THE
OTHER SUBDIVISIONS RELATE EXCLUSIVELY TO PROCEEDINGS FOR THE PREVENTION
OF UNFAIR LABOR PRACTICES.  BOTH THEY AND SUBDIVISION (F) ARE SILENT AS
TO THE PROCEEDINGS OR CERTIFICATIONS AUTHORIZED BY SEC. 9.  SECTION
10(F), PROVIDING FOR REVIEW, SPEAKS ONLY OF A "FINAL ORDER OF THE
BOARD."  IT GIVES A RIGHT TO REVIEW TO PERSONS AGGRIEVED BY A FINAL
ORDER UPON PETITION TO A COURT OF APPEALS IN THE CIRCUIT "WHEREIN THE
UNFAIR LABOR PRACTICE IN QUESTION WAS ALLEGED TO HAVE BEEN ENGAGED IN
OR WHEREIN SUCH PERSON RESIDES OR TRANSACTS BUSINESS, OR IN THE COURT
OF APPEALS OF THE DISTRICT OF COLUMBIA."  IT DIRECTS THAT THE ORDER
SHALL BE REVIEWED ON THE ENTIRE RECORD BEFORE THE BOARD "INCLUDING THE
PLEADINGS AND TESTIMONY" UPON WHICH THE ORDER COMPLAINED OF WAS
ENTERED, ALTHOUGH NO COMPLAINT OR OTHER PLEADING IS MENTIONED BY SEC. 9
RELATING TO REPRESENTATION PROCEEDINGS AND CERTIFICATES.  SUBDIVISION
(F) PROVIDES THAT UPON PETITION FOR REVIEW BY AN AGGRIEVED PERSON "THE
COURT SHALL PROCEED IN THE SAME MANNER AS IN THE CASE OF AN APPLICATION
BY THE BOARD UNDER SUBDIVISION (E)," AND IT IS GIVEN THE SAME
JURISDICTION "TO GRANT TO THE BOARD SUCH TEMPORARY RELIEF OR
RESTRAINING ORDER AS IT DEEMS JUST AND PROPER, AND IN LIKE MANNER TO
MAKE AND ENTER A DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO
MODIFIED, OR SETTING ASIDE IN WHOLE OR IN PART THE ORDER OF THE
BOARD."  SEE, FORD MOTOR CO. V. NATIONAL LABOR RELATIONS BOARD, 305
U.S. 364, 369. 

IN ANALYZING THE PROVISIONS OF THE STATUTE IN ORDER TO ASCERTAIN ITS
TRUE MEANING, WE ATTRIBUTE LITTLE IMPORTANCE TO THE FACT THAT THE
CERTIFICATION DOES NOT ITSELF COMMAND ACTION.  ADMINISTRATIVE
DETERMINATIONS WHICH ARE NOT COMMANDS MAY FOR ALL PRACTICAL PURPOSES
DETERMINE RIGHTS AS EFFECTIVELY AS THE JUDGMENT OF A COURT, AND MAY BE
REEXAMINED BY COURTS UNDER PARTICULAR STATUTES PROVIDING FOR THE REVIEW
OF "ORDERS."  SEE ROCHESTER TELEPHONE CORP. V. UNITED STATES, 307 U.S.
125, 130, 135, ET SEQ.; FEDERAL POWER COMM'N V. PACIFIC POWER & LIGHT
CO., 307 U.S. 156.  WE MUST LOOK RATHER TO THE LANGUAGE OF THE STATUTE,
READ IN THE LIGHT OF ITS PURPOSE AND ITS LEGISLATIVE HISTORY, TO
ASCERTAIN WHETHER THE "ORDER" FOR WHICH THE REVIEW IN COURT IS
PROVIDED, IS CONTRASTED WITH FORMS OF ADMINISTRATIVE ACTION DIFFERENTLY
DESCRIBED AS A PURPOSEFUL MEANS OF EXCLUDING THEM FROM THE REVIEW
PROVISIONS. 

HERE IT IS EVIDENT THAT THE ENTIRE STRUCTURE OF THE ACT EMPHASIZES,
FOR PURPOSES OF REVIEW, THE DISTINCTION BETWEEN AN "ORDER" OF THE BOARD
RESTRAINING AN UNFAIR LABOR PRACTICE AND A CERTIFICATION IN
REPRESENTATION PROCEEDINGS.  THE ONE AUTHORIZED BY SEC. 10 MAY BE
REVIEWED BY THE COURT ON PETITION OF THE BOARD FOR ENFORCEMENT OF THE
ORDER, OR OF A PERSON AGGRIEVED, IN CONFORMITY TO THE PROCEDURE LAID
DOWN IN SEC. 10, WHICH SAYS NOTHING OF CERTIFICATIONS.  THE OTHER,
AUTHORIZED BY SEC. 9, IS NOWHERE SPOKEN OF AS AN ORDER, AND NO
PROCEDURE IS PRESCRIBED FOR ITS REVIEW APART FROM AN ORDER PROHIBITING
AN UNFAIR LABOR PRACTICE.  THE EXCLUSION OF REPRESENTATION PROCEEDINGS
FROM THE REVIEW SECURED BY THE PROVISIONS OF SEC. 10(F) IS EMPHASIZED
BY THE CLAUSES OF SEC. 9(D), WHICH PROVIDE FOR CERTIFICATION BY THE
BOARD OF A RECORD OF A REPRESENTATION PROCEEDING ONLY IN THE CASE WHEN
THERE IS A PETITION FOR REVIEW OF AN ORDER OF THE BOARD RESTRAINING AN
UNFAIR LABOR PRACTICE.  THE STATUTE ON ITS FACE THUS INDICATES A
PURPOSE TO LIMIT THE REVIEW AFFORDED BY SEC. 10 TO ORDERS OF THE BOARD
PROHIBITING UNFAIR LABOR PRACTICES, A PURPOSE AND A CONSTRUCTION WHICH
ITS LEGISLATIVE HISTORY CONFIRMS. 

UPON THE INTRODUCTION OF THE BILL WHICH WAS ENACTED AS THE WAGNER
ACT, CONGRESS HAD POINTEDLY BROUGHT TO ITS ATTENTION THE EXPERIENCE
UNDER PUBLIC RESOLUTION 44 OF JUNE 19, 1934, 48 STAT. 1183.  THAT
RESOLUTION AUTHORIZED THE NATIONAL LABOR RELATIONS BOARD, PREDECESSOR
OF RESPONDENT, "TO ORDER AND CONDUCT ELECTIONS" BY EMPLOYEES OF ANY
EMPLOYER TO DETERMINE WHO WERE THEIR REPRESENTATIVES FOR BARGAINING
PURPOSES.  SECTION 2 PROVIDED THAT ANY ORDER OF THE BOARD SHOULD BE
REVIEWED IN THE SAME MANNER AS ORDERS OF THE FEDERAL TRADE COMMISSION
UNDER THE FEDERAL TRADE COMMISSION ACT.  THE REPORTS OF THE
CONGRESSIONAL COMMITTEES UPON THE BILL WHICH BECAME THE WAGNER ACT
REFER TO THE LONG DELAYS IN THE PROCEDURE PRESCRIBED BY RESOLUTION 44,
RESULTING FROM APPLICATIONS TO THE FEDERAL APPELLATE COURTS FOR REVIEW
OF ORDERS FOR ELECTIONS.  FN2  AND IN CONSIDERING THE PROVISIONS OF
SEC. 9(D) THE COMMITTEE REPORTS WERE EMPHATIC IN THEIR DECLARATION THAT
THE PROVISIONS OF THE BILL FOR COURT REVIEW DID NOT EXTEND TO
PROCEEDINGS UNDER SEC. 9 EXCEPT AS INCIDENTAL TO REVIEW OF AN ORDER
RESTRAINING AN UNFAIR LABOR PRACTICE UNDER SEC. 10.  FN3  THE BILL WAS
SIMILARLY EXPLAINED ON THE SENATE FLOOR BY THE COMMITTEE CHAIRMAN WHO
DECLARED:  "IT PROVIDES FOR REVIEW IN THE COURTS ONLY AFTER THE
ELECTION HAS BEEN HELD AND THE BOARD HAS ORDERED THE EMPLOYER TO DO
SOMETHING PREDICATED UPON THE RESULTS OF AN ELECTION."  79 CONG. REC.,
7658.  THE CONCLUSION IS UNAVOIDABLE THAT CONGRESS, AS THE RESULT OF A
DELIBERATE CHOICE OF CONFLICTING POLICIES, HAS EXCLUDED REPRESENTATION
CERTIFICATIONS OF THE BOARD FROM THE REVIEW BY FEDERAL APPELLATE COURTS
AUTHORIZED BY THE WAGNER ACT EXCEPT IN THE CIRCUMSTANCES SPECIFIED IN
SEC. 9(D). 

AN ARGUMENT, MUCH PRESSED UPON US, IS, IN EFFECT, THAT CONGRESS WAS
MISTAKEN IN ITS JUDGMENT THAT THE HEARING BEFORE THE BOARD IN
PROCEEDINGS UNDER SEC. 9(C), WITH REVIEW ONLY WHEN AN ORDER IS MADE
UNDER SEC. 10(C) DIRECTING THE EMPLOYER TO DO SOMETHING "PROVIDES AN
APPROPRIATE SAFEGUARD AND OPPORTUNITY TO BE HEARD," HOUSE REP., P. 23,
AND THAT "THIS PROVIDES A COMPLETE GUARANTEE AGAINST ARBITRARY ACTION
BY THE BOARD," SEN. REP., P. 14.  IT SEEMS TO BE THOUGHT THAT THIS
FAILURE TO PROVIDE FOR A COURT REVIEW IS PRODUCTIVE OF PECULIAR
HARDSHIPS, WHICH WERE PERHAPS NOT FORESEEN IN CASES WHERE THE INTERESTS
OF RIVAL UNIONS ARE AFFECTED.  FN4  BUT THESE ARE ARGUMENTS TO BE
ADDRESSED TO CONGRESS AND NOT THE COURTS.  THE ARGUMENT TOO THAT
CONGRESS HAS INFRINGED DUE PROCESS BY WITHHOLDING FROM FEDERAL
APPELLATE COURTS A JURISDICTION WHICH THEY NEVER POSSESSED IS SIMILARLY
WITHOUT FORCE.  SHANNAHAN V. UNITED STATES, 303 U.S. 596; SEE IN RE
NATIONAL LABOR RELATIONS BOARD, 304 U.S. 486, 495. 

THE BOARD ARGUES THAT THE PROVISIONS OF THE WAGNER ACT, PARTICULARLY
SEC. 9(D), HAVE FORECLOSED REVIEW OF ITS CHALLENGED ACTION BY
INDEPENDENT SUIT IN THE DISTRICT COURT, SUCH AS WAS ALLOWED UNDER OTHER
ACTS PROVIDING FOR A LIMITED COURT REVIEW IN SHIELDS V. UTAH IDAHO
CENTRAL R. CO., 305 U.S. 177, AND IN UTAH FUEL CO. V. NATIONAL
BITUMINOUS COAL COMM'N, 306 U.S. 56; CF. MYERS V. BETHLEHEM
SHIPBUILDING CORP., 303 U.S. 41.  BUT THAT QUESTION IS NOT PRESENTED
FOR DECISION BY THE RECORD BEFORE US.  ITS ANSWER INVOLVES A
DETERMINATION WHETHER THE WAGNER ACT, IN SO FAR AS IT HAS GIVEN LEGALLY
ENFORCEABLE RIGHTS, HAS DEPRIVED THE DISTRICT COURTS OF SOME PORTION OF
THEIR ORIGINAL JURISDICTION CONFERRED BY SEC. 24 OF THE JUDICIAL CODE. 
IT CAN BE APPROPRIATELY ANSWERED ONLY UPON A SHOWING IN SUCH A SUIT
THAT UNLAWFUL ACTION OF THE BOARD HAS INFLICTED AN INJURY ON THE
PETITIONERS FOR WHICH THE LAW, APART FROM THE REVIEW PROVISIONS OF THE
WAGNER ACT, AFFORDS A REMEDY.  THIS QUESTION CAN BE PROPERLY AND
ADEQUATELY CONSIDERED ONLY WHEN IT IS BROUGHT TO US FOR REVIEW UPON A
SUITABLE RECORD.  AFFIRMED. 

FN1  "(F)  ANY PERSON AGGRIEVED BY A FINAL ORDER OF THE BOARD
GRANTING OR DENYING IN WHOLE OR IN PART THE RELIEF SOUGHT MAY OBTAIN A
REVIEW OF SUCH ORDER IN ANY CIRCUIT COURT OF APPEALS OF THE UNITED
STATES IN THE CIRCUIT WHEREIN THE UNFAIR LABOR PRACTICE IN QUESTION WAS
ALLEGED TO HAVE BEEN ENGAGED IN OR WHEREIN SUCH PERSON RESIDES OR
TRANSACTS BUSINESS, OR IN THE COURT OF APPEALS OF THE DISTRICT OF
COLUMBIA, BY FILING IN SUCH COURT A WRITTEN PETITION PRAYING THAT THE
ORDER OF THE BOARD BE MODIFIED OR SET ASIDE.  A COPY OF SUCH PETITION
SHALL BE FORTHWITH SERVED UPON THE BOARD, AND THEREUPON THE AGGRIEVED
PARTY SHALL FILE IN THE COURT A TRANSCRIPT OF THE ENTIRE RECORD IN THE
PROCEEDING, CERTIFIED BY THE BOARD, INCLUDING THE PLEADING AND
TESTIMONY UPON WHICH THE ORDER COMPLAINED OF WAS ENTERED AND THE
FINDINGS AND ORDER OF THE BOARD.  UPON SUCH FILING, THE COURT SHALL
PROCEED IN THE SAME MANNER AS IN THE CASE OF AN APPLICATION BY THE
BOARD UNDER SUBSECTION (E), AND SHALL HAVE THE SAME EXCLUSIVE
JURISDICTION TO GRANT TO THE BOARD SUCH TEMPORARY RELIEF OR RESTRAINING
ORDER AS IT DEEMS JUST AND PROPER, AND IN LIKE MANNER TO MAKE AND ENTER
A DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING
ASIDE IN WHOLE OR IN PART THE ORDER OF THE BOARD; AND THE FINDINGS OF
THE BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL IN LIKE
MANNER BE CONCLUSIVE." 

FN2  "WEAKNESSES IN EXISTING LAW.  ...  (6)  OBSTACLES TO ELECTIONS. 
- UNDER PUBLIC RESOLUTION 44, ANY ATTEMPT BY THE GOVERNMENT TO CONDUCT
AN ELECTION OF REPRESENTATIVES MAY BE CONTESTED AB INITIO IN THE
COURTS, ALTHOUGH SUCH ELECTION IS IN REALITY MERELY A PRELIMINARY
DETERMINATION OF FACT.  THIS MEANS THAT THE GOVERNMENT CAN BE DELAYED
INDEFINITELY BEFORE IT TAKES THE FIRST STEP TOWARD INDUSTRIAL PEACE. 
AFTER ALMOST A YEAR NOT A SINGLE CASE, IN WHICH A COMPANY HAS CHOSEN TO
CONTEST AN ELECTION ORDER OF THE BOARD, HAS REACHED DECISION IN ANY
CIRCUIT COURT OF APPEALS."  SEN. REP. NO. 573, COMMITTEE ON EDUCATION
AND LABOR, 74TH CONG., 1ST SESS., PP. 5, 6. 

AFTER REFERRING TO THE PROCEDURE FOR REVIEW UNDER PUBLIC RESOLUTION
44, THE HOUSE COMMITTEE DECLARED:  "THE WEAKNESS OF THIS PROCEDURE IS
THAT UNDER THE PROVISION FOR REVIEW OF ELECTION ORDERS EMPLOYERS HAVE A
MEANS OF HOLDING UP THE ELECTION FOR MONTHS BY AN APPLICATION TO THE
CIRCUIT COURT OF APPEALS.  ...  AT THE PRESENT TIME 10 CASES FOR REVIEW
OF THE BOARD'S ELECTION ORDERS ARE PENDING IN THE CIRCUIT COURTS OF
APPEALS.  ONLY THREE HAVE BEEN ARGUED AND NONE HAVE BEEN DECIDED." 
HOUSE REP., NO. 1147, COMMITTEE ON LABOR, 74TH CONG., 1ST SESS., P. 6. 

FN3  "THERE IS NO MORE REASON FOR COURT REVIEW PRIOR TO AN ELECTION
THAN FOR COURT REVIEW PRIOR TO A HEARING.  BUT IF SUBSEQUENTLY THE
BOARD MAKES AN ORDER PREDICATED UPON THE ELECTION, SUCH AS AN ORDER TO
BARGAIN COLLECTIVELY WITH ELECTED REPRESENTATIVES, THEN THE ENTIRE
ELECTION PROCEDURE BECOMES PART OF THE RECORD UPON WHICH THE ORDER OF
THE BOARD IS BASED, AND IS FULLY REVIEWABLE BY AN AGGRIEVED PARTY IN
THE FEDERAL COURTS IN THE MANNER PROVIDED IN SECTION 10.  AND THIS
REVIEW WOULD INCLUDE WITHIN ITS SCOPE THE ACTION OF THE BOARD IN
DETERMINING THE APPROPRIATE UNIT FOR PURPOSES OF THE ELECTION.  THIS
PROVIDES A COMPLETE GUARANTEE AGAINST ARBITRARY ACTION BY THE BOARD." 
SEN. REP. 573, COMMITTEE ON EDUCATION AND LABOR, 74TH CONG., 1ST SESS.,
P. 14. 

"AS PREVIOUSLY STATED IN THIS REPORT, THE EFFICACY OF PUBLIC
RESOLUTION 44 HAS BEEN SUBSTANTIALLY IMPAIRED BY THE PROVISION FOR
COURT REVIEW OF ELECTION ORDERS PRIOR TO THE HOLDING OF THE ELECTION. 
REVIEW PRIOR TO THE HOLDING OF THE ELECTION, AND PROVIDES AN EXCLUSIVE,
COMPLETE, AND ADEQUATE REMEDY WHENEVER AN ORDER OF THE BOARD MADE
PURSUANT TO SECTION 10(C) IS BASED IN WHOLE OR IN PART UPON FACTS
CERTIFIED FOLLOWING AN ELECTION OR OTHER INVESTIGATION PURSUANT TO
INVESTIGATION PROVIDES AN APPROPRIATE SAFEGUARD AND OPPORTUNITY TO BE
HEARD.  SINCE THE CERTIFICATION AND THE RECORD OF THE INVESTIGATION ARE
REQUIRED TO BE INCLUDED IN THE TRANSCRIPT OF THE ENTIRE RECORD FILED
PURSUANT TO SECTION 10(E) OR (F), THE BOARD'S ACTIONS AND
DETERMINATIONS OF FACT AND LAW IN REGARD THERETO WILL BE SUBJECT TO THE
SAME COURT REVIEW AS IS PROVIDED FOR ITS OTHER DETERMINATIONS UNDER
74TH CONG., 1ST SESS., P. 23. 

FN4  CONGRESS APPARENTLY RECOGNIZED THAT REPRESENTATION PROCEEDINGS
UNDER SEC. 9(C) MIGHT INVOLVE RIVAL UNIONS.  THE HOUSE COMMITTEE SAID:
"SECTION 9(C) MAKES PROVISION FOR ELECTIONS TO BE CONDUCTED BY THE
BOARD OR ITS AGENTS OR AGENCIES TO ASCERTAIN THE REPRESENTATIVES OF
EMPLOYEES.  THE QUESTION WILL ORDINARILY ARISE AS BETWEEN TWO OR MORE
BONA FIDE ORGANIZATIONS COMPETING TO REPRESENT THE EMPLOYEES, BUT THE
AUTHORITY GRANTED HERE IS BROAD ENOUGH TO TAKE IN THE NOT INFREQUENT
CASE WHERE ONLY ONE SUCH ORGANIZED GROUP IS PRESSING FOR RECOGNITION,
AND ITS CLAIM OF REPRESENTATION IS CHALLENGED."  H. REP. NO. 1147,
COMMITTEE ON LABOR, 74TH CONG., 1ST SESS., P. 22. 
..END :























LABOR BOARD V. INT. BROTHERHOOD, 308 U.S. 413 


NO. 253.  ARGUED DECEMBER 8, 1939.  - DECIDED JANUARY 2, 1940.  - 105
F.2D 598, REVERSED. 


A DIRECTION FOR AN ELECTION MADE BY THE NATIONAL LABOR RELATIONS BOARD
IN A REPRESENTATION PROCEEDING UNDER SEC. 9(C) OF THE NATIONAL LABOR
RELATIONS ACT IS NOT REVIEWABLE BY A CIRCUIT COURT OF APPEALS UNDER
SEC. 10 OF THE ACT.  AMERICAN FEDERATION OF LABOR V. NATIONAL LABOR
RELATIONS BOARD, ANTE, P. 401.  P. 414. 

NATIONAL LABOR RELATIONS BOARD V. INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 537, TO REVIEW A JUDGMENT SETTING ASIDE ON
APPEAL AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD DIRECTING AN
ELECTION BY EMPLOYEES. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS IS A COMPANION CASE TO AMERICAN FEDERATION OF LABOR V. NATIONAL
LABOR RELATIONS BOARD, ANTE, P. 401.  THE DECISIVE QUESTION RAISED BY
THE PETITION IS WHETHER A DIRECTION FOR AN ELECTION MADE BY THE
NATIONAL LABOR RELATIONS BOARD IN A REPRESENTATION PROCEEDING UNDER
SEC. 9(C) OF THE WAGNER ACT, 49 STAT. 449, 453, 29 U.S.C., SUPP. IV,
SECS. 151-166, IS REVIEWABLE BY A CIRCUIT COURT OF APPEALS UNDER SEC.
10(F) OF THE ACT. 

IN FEBRUARY, 1938, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL 876, ONE OF THE RESPONDENTS, AND AN AFFILIATE OF RESPONDENT,
AMERICAN FEDERATION OF LABOR, FILED WITH THE REGIONAL DIRECTOR OF THE
BOARD A PETITION ASKING AN INVESTIGATION AND THE CERTIFICATION OF A
REPRESENTATIVE, FOR PURPOSES OF COLLECTIVE BARGAINING, OF THE EMPLOYEES
OF CONSUMERS POWER COMPANY, PURSUANT TO SEC. 9(C) OF THE ACT.  AFTER A
HEARING, IN WHICH THE PETITIONER, THE EMPLOYER, AND THE UTILITY WORKERS
ORGANIZING COMMITTEE, AN AFFILIATE OF THE CONGRESS OF INDUSTRIAL
ORGANIZATION, PARTICIPATED, THE BOARD ISSUED A "DECISION AND DIRECTION
OF ELECTION."  9 N.L.R.B. 742.  AT THE ELECTION IN JANUARY, 1939, 2,806
OF THE TOTAL 2,977 EMPLOYEES VOTED.  OF THESE 1,072 VOTED FOR I.B.E.W.
AND 1,164 VOTED FOR U.W.O.C. 

AFTER FURTHER PROCEEDINGS AND A HEARING THE BOARD FOUND "THAT THE
QUESTION CONCERNING REPRESENTATION WHICH HAS ARISEN CAN BEST BE
RESOLVED BY THE HOLDING OF A RUN-OFF ELECTION IN WHICH THE EMPLOYEES IN
THE APPROPRIATE UNIT WILL BE GIVEN THE OPPORTUNITY TO DECIDE WHETHER OR
NOT THEY DESIRE TO BE REPRESENTED BY U.W.O.C."  AND MADE ITS
"DIRECTION" ACCORDINGLY.  11 N.L.R.B. 848. 

CONTENDING THAT THE DIRECTION, CONTRARY TO LAW, EXCLUDES UNION 876
FROM THE BALLOT ON THE RUN-OFF ELECTION, RESPONDENTS PETITIONED THE
COURT OF APPEALS FOR THE SIXTH CIRCUIT TO REVIEW THE DIRECTION UNDER
THE PROVISIONS OF SEC. 10(F) OF THE ACT.  THAT COURT SET ASIDE THE
DIRECTION AS INFRINGING THE FREE CHOICE BY EMPLOYEES OF THEIR
REPRESENTATIVES FOR PURPOSES OF COLLECTIVE BARGAINING ASSURED TO THEM
BY SECS. 1, 7, 9(A) AND (C) OF THE WAGNER ACT.  WE GRANTED CERTIORARI
OCTOBER 9, 1939, SO THAT THE CASE MIGHT BE CONSIDERED WITH AMERICAN
FEDERATION OF LABOR V. NATIONAL LABOR RELATIONS BOARD, SUPRA. 

DECISION HERE IS CONTROLLED BY OUR DECISION IN THAT CASE.  THE
DIRECTION FOR AN ELECTION IS BUT A PART OF THE REPRESENTATION
PROCEEDING AUTHORIZED BY SEC. 9(C) AND IS NO MORE SUBJECT TO REVIEW
UNDER SEC. 10(F) THAN IS A CERTIFICATION WHICH IS THE FINAL STEP IN
SUCH A PROCEEDING AND WHICH WE HAVE JUST HELD CONGRESS HAS EXCLUDED
FROM THE REVIEW AFFORDED BY THAT SUBDIVISION.  REVERSED. 
..END :







LETULLE V. SCOFIELD, 308 U.S. 415 


NO. 63.  ARGUED DECEMBER 4, 1939.  - DECIDED JANUARY 2, 1940.  - 103
F.2D 20, AFFIRMED. 


1.  A TRANSACTION WHEREBY ONE CORPORATION TRANSFERS ALL OF ITS
PROPERTY TO ANOTHER CORPORATION FOR CASH AND BONDS, OF THE TRANSFEREE,
RETAINING NO OTHER STAKE IN THE ENTERPRISE, IS NOT A TAX-FREE
"REORGANIZATION" WITHIN THE MEANING OF SEC. 112(I) OF THE REVENUE ACT
OF 1928, BUT IS A SALE OR EXCHANGE.  P. 419. 

2.  A RESPONDENT OR AN APPELLEE MAY URGE ANY MATTER APPEARING IN THE
RECORD IN SUPPORT OF A JUDGMENT, BUT HE MAY NOT ATTACK IT, EVEN ON
GROUNDS ASSERTED IN THE COURT BELOW, IN AN EFFORT TO HAVE THIS COURT
REVERSE IT, WHEN HE HIMSELF HAS NOT SOUGHT REVIEW OF THE WHOLE
JUDGMENT, OR OF THAT PORTION WHICH IS ADVERSE TO HIM.  P. 421. 

LETULLE V. SCOFIELD, COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 531, TO REVIEW THE REVERSAL OF A JUDGMENT
AGAINST THE COLLECTOR FOR TAXES UNLAWFULLY COLLECTED.  THE PLAINTIFF
SUED INDIVIDUALLY AND AS EXECUTOR OF HIS WIFE'S WILL AND AS HER
REPRESENTATIVE IN THE COMMUNITY PROPERTY.  THE ACTIONS WERE
CONSOLIDATED AND TRIED WITHOUT A JURY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE TOOK THIS CASE BECAUSE THE PETITION FOR CERTIORARI ALLEGED THAT
THE CIRCUIT COURT OF APPEALS HAD BASED ITS DECISION ON A POINT NOT
PRESENTED OR ARGUED BY THE LITIGANTS, WHICH THE PETITIONER HAD NEVER
HAD AN OPPORTUNITY TO MEET BY THE PRODUCTION OF EVIDENCE. 

THE GULF COAST IRRIGATION COMPANY WAS THE OWNER OF IRRIGATION
PROPERTIES.  PETITIONER WAS ITS SOLE STOCKHOLDER.  HE PERSONALLY OWNED
CERTAIN LANDS AND OTHER IRRIGATION PROPERTIES.  NOVEMBER 4, 1931, THE
IRRIGATION COMPANY, THE GULF COAST WATER COMPANY, AND THE PETITIONER,
ENTERED INTO AN AGREEMENT WHICH RECITED THAT THE PETITIONER OWNED ALL
OF THE STOCK OF THE IRRIGATION COMPANY; DESCRIBED THE COMPANY'S
PROPERTIES, AND STATED THAT, PRIOR TO CONVEYANCE TO BE MADE PURSUANT TO
THE CONTRACT, THE IRRIGATION COMPANY WOULD BE THE OWNER OF CERTAIN
OTHER LANDS AND IRRIGATION PROPERTIES.  THESE OTHER LANDS AND
PROPERTIES WERE THOSE WHICH THE PETITIONER INDIVIDUALLY OWNED.  THE
CONTRACT CALLED FOR A CONVEYANCE OF ALL THE PROPERTIES OWNED, AND TO BE
OWNED, BY THE IRRIGATION COMPANY FOR $50,000 IN CASH AND $750,000 IN
BONDS OF THE WATER COMPANY, PAYABLE SERIALLY OVER THE PERIOD JANUARY 1,
1933, TO JANUARY 1, 1944.  THE PETITIONER JOINED IN THIS AGREEMENT AS A
GUARANTOR OF THE TITLE OF THE IRRIGATION COMPANY AND FOR THE PURPOSE OF
COVENANTING THAT HE WOULD NOT PERSONALLY ENTER INTO THE IRRIGATION
BUSINESS WITHIN A FIXED AREA DURING A SPECIFIED PERIOD AFTER THE
EXECUTION OF THE CONTRACT.  THREE DAYS LATER, AT A SPECIAL MEETING OF
STOCKHOLDERS OF THE IRRIGATION COMPANY, THE PROPOSED REORGANIZATION WAS
APPROVED, THE MINUTES STATING THAT THE TAXPAYER, "DESIRING ALSO TO
REORGANIZE HIS INTEREST IN THE PROPERTIES," HAD CONSENTED TO BE A PARTY
TO THE REORGANIZATION.  THE CAPITAL STOCK OF THE IRRIGATION COMPANY WAS
INCREASED AND THEREUPON THE TAXPAYER SUBSCRIBED FOR THE NEW STOCK AND
PAID FOR IT BY CONVEYANCE OF HIS INDIVIDUAL PROPERTIES. 

THE CONTRACT BETWEEN THE TWO CORPORATIONS WAS CARRIED OUT NOVEMBER
18, WITH THE RESULT THAT THE WATER COMPANY BECAME OWNER OF ALL THE
PROPERTIES THEN OWNED BY THE IRRIGATION COMPANY INCLUDING THE PROPERTY
THERETOFORE OWNED BY THE PETITIONER INDIVIDUALLY.  SUBSEQUENTLY ALL OF
ITS ASSETS, INCLUDING THE BONDS RECEIVED FROM THE WATER COMPANY, WERE
DISTRIBUTED TO THE PETITIONER.  THE COMPANY WAS THEN DISSOLVED.  THE
PETITIONER AND HIS WIFE FILED A TAX RETURN AS MEMBERS OF A COMMUNITY IN
WHICH THEY REPORTED NO GAIN AS A RESULT OF THE RECEIPT OF THE
LIQUIDATING DIVIDEND FROM THE IRRIGATION COMPANY.  THE LATTER REPORTED
NO GAIN FOR THE TAXABLE YEAR IN VIRTUE OF ITS RECEIPT OF BONDS AND CASH
FROM THE WATER COMPANY.  THE COMMISSIONER OF INTERNAL REVENUE ASSESSED
ADDITIONAL TAXES AGAINST THE COMMUNITY, AS INDIVIDUAL TAXPAYERS, BY
REASON OF THE RECEIPT OF THE LIQUIDATING DIVIDEND, AND AGAINST THE
PETITIONER AS TRANSFEREE OF THE IRRIGATION COMPANY'S ASSETS IN VIRTUE
OF THE GAIN REALIZED BY THE COMPANY ON THE SALE OF ITS PROPERTY.  THE
TAX WAS PAID AND CLAIMS FOR REFUND WERE FILED.  PETITIONER'S WIFE
HAVING DIED HE BROUGHT SUIT INDIVIDUALLY AND AS HER EXECUTOR AND
REPRESENTATIVE IN THE COMMUNITY PROPERTY AGAINST THE RESPONDENT TO
RECOVER THE AMOUNT OF THE ADDITIONAL TAXES SO ASSESSED.  HE ALLEGED
THAT THE TRANSACTION CONSTITUTED A TAX-EXEMPT REORGANIZATION AS DEFINED
BY THE REVENUE ACT.  FN1  THE RESPONDENT TRAVERSED THE ALLEGATIONS OF
THE COMPLAINTS AND THE CAUSES WERE CONSOLIDATED AND TRIED BY THE
DISTRICT COURT WITHOUT A JURY.  THE RESPONDENT'S CONTENTION THAT THE
TRANSACTION AMOUNTED MERELY TO A SALE OF ASSETS BY THE PETITIONER AND
THE IRRIGATION COMPANY AND DID NOT FALL WITHIN THE STATUTORY DEFINITION
OF A TAX-FREE REORGANIZATION WAS OVERRULED BY THE DISTRICT COURT AND
JUDGMENT WAS ENTERED FOR THE PETITIONER. 

THE RESPONDENT APPEALED, ASSERTING ERROR ON THE PART OF THE DISTRICT
COURT IN MATTERS NOT NOW MATERIAL AND ALSO ASSIGNING AS ERROR THE
COURT'S HOLDING THAT THE TRANSACTION CONSTITUTED A NONTAXABLE
REORGANIZATION. 

THE CIRCUIT COURT OF APPEALS CONCLUDED THAT, AS THE WATER COMPANY
ACQUIRED SUBSTANTIALLY ALL THE PROPERTIES OF THE IRRIGATION COMPANY,
THERE WAS A MERGER OF THE LATTER WITHIN THE LITERAL LANGUAGE OF THE
STATUTE, BUT HELD THAT, IN THE LIGHT OF THE CONSTRUCTION THIS COURT HAS
PUT UPON THE STATUTE, THE TRANSACTION WOULD NOT BE A REORGANIZATION
UNLESS THE TRANSFEROR RETAINED A DEFINITE AND SUBSTANTIAL INTEREST IN
THE AFFAIRS OF THE TRANSFEREE.  IT THOUGHT THIS REQUIREMENT WAS
SATISFIED BY THE TAKING OF THE BONDS OF THE WATER COMPANY, AND,
THEREFORE, AGREED WITH THE DISTRICT COURT THAT A REORGANIZATION HAD
BEEN CONSUMMATED.  IT ADDED, HOWEVER, "WE FIND A REASON FOR REVERSING
THE JUDGMENT WHICH HAS NOT BEEN ARGUED."  ADVERTING TO THE FACT THAT
THE TRANSFER OF THE PETITIONER'S INDIVIDUAL PROPERTIES TO THE
IRRIGATION COMPANY WAS FOR THE PURPOSE OF INCLUDING THEM IN THE
LATTER'S ASSETS TO BE TRANSFERRED IN THE PROPOSED REORGANIZATION, THE
COURT SAID THE STATUTE DID NOT EXTEND TO THE REORGANIZATION OF AN
INDIVIDUAL'S BUSINESS OR AFFAIRS, AND THE TRANSACTION WAS A
REORGANIZATION WITHIN THE MEANING OF THE REVENUE ACT AS RESPECTS THE
CORPORATION'S ASSETS OWNED ON NOVEMBER 4, 1931, BUT NOT AS RESPECTS THE
PETITIONER'S INDIVIDUAL PROPERTIES INCLUDED IN THE SALE.  IT CONCLUDED:
"ONLY SO MUCH OF THE CONSIDERATION AS REPRESENTS THE PRICE OF THE
PROPERTIES AND BUSINESS OF THE IRRIGATION COMPANY IS ENTITLED TO BE
PROTECTED FROM TAXATION AS ARISING FROM A REORGANIZATION.  IT DOES NOT
APPEAR WHAT THE PROPER APPORTIONMENT IS.  THE BURDEN WAS UPON LETULLE
TO SHOW NOT ONLY THAT HE HAD BEEN ILLEGALLY TAXED, BUT HOW MUCH OF WHAT
WAS COLLECTED FROM HIM WAS ILLEGAL.  THE LATTER HE DID NOT DO.  THE
EVIDENCE DOES NOT SUPPORT THE JUDGMENT FOR THE FULL AMOUNT PAID BY
HIM.  IT IS ACCORDINGLY REVERSED, THAT FURTHER PROCEEDINGS MAY BE HAD
CONSISTENT HEREWITH."  FN2 

THE PETITIONER SOUGHT CERTIORARI ASSERTING THAT THE CIRCUIT COURT OF
APPEALS HAD DEPARTED FROM THE USUAL AND ACCEPTED COURSE OF JUDICIAL
PROCEEDINGS BY DECIDING THE CAUSE UPON A GROUND NOT PRESENTED OR ARGUED
AND HENCE HAD DEPRIVED THE PETITIONER OF HIS DAY IN COURT.  THE
RESPONDENT, THOUGH HE HAD CONTENDED BELOW THAT THE TRANSACTION IN
QUESTION DID NOT AMOUNT TO A TAX-FREE STATUTORY REORGANIZATION, DID NOT
FILE A CROSS PETITION ASKING FOR A REVIEW OF THAT PART OF THE JUDGMENT
EXEMPTING FROM TAXATION GAIN TO THE IRRIGATION COMPANY ARISING FROM THE
TRANSFER OF ITS ASSETS OWNED BY IT ON AND PRIOR TO NOVEMBER 4, 1931,
AND THE PART OF THE LIQUIDATING DIVIDEND ATTRIBUTABLE THERETO. 

WE FIND IT UNNECESSARY TO CONSIDER PETITIONER'S CONTENTION THAT THE
CIRCUIT COURT OF APPEALS ERRED IN DECIDING THE CASE ON A GROUND NOT
RAISED BY THE PLEADINGS, NOT BEFORE THE TRIAL COURT, NOT SUGGESTED OR
ARGUED IN THE CIRCUIT COURT OF APPEALS, AND ONE AS TO WHICH THE
PETITIONER HAD NEVER HAD THE OPPORTUNITY TO PRESENT HIS EVIDENCE, SINCE
WE ARE OF OPINION THAT THE TRANSACTION DID NOT AMOUNT TO A
REORGANIZATION AND THAT, THEREFORE, THE PETITIONER CANNOT COMPLAIN, AS
THE JUDGMENT MUST BE AFFIRMED ON THE GROUND THAT NO TAX-FREE
REORGANIZATION WAS EFFECTED WITHIN THE MEANING OF THE STATUTE. 


"(1)  THE TERM 'REORGANIZATION' MEANS (A) A MERGER OR CONSOLIDATION
(INCLUDING THE ACQUISITION BY ONE CORPORATION OF AT LEAST A MAJORITY OF
THE VOTING STOCK AND AT LEAST A MAJORITY OF THE TOTAL NUMBER OF SHARES
OF ALL OTHER CLASSES OF STOCK OF ANOTHER CORPORATION, OR SUBSTANTIALLY
ALL THE PROPERTIES OF ANOTHER CORPORATION)  ..." 

AS THE COURT BELOW PROPERLY STATED, THE SECTION IS NOT TO BE READ
LITERALLY, AS DENOMINATING THE TRANSFER OF ALL THE ASSETS OF ONE
COMPANY FOR WHAT AMOUNTS TO A CASH CONSIDERATION GIVEN BY THE OTHER A
REORGANIZATION.  WE HAVE HELD THAT WHERE THE CONSIDERATION CONSISTS OF
CASH AND SHORT TERM NOTES THE TRANSFER DOES NOT AMOUNT TO A
REORGANIZATION WITHIN THE TRUE MEANING OF THE STATUTE, BUT IS A SALE
UPON WHICH GAIN OR LOSS MUST BE RECKONED.  FN3  WE HAVE SAID THAT THE
STATUTE WAS NOT SATISFIED UNLESS THE TRANSFEROR RETAINED A SUBSTANTIAL
STAKE IN THE ENTERPRISE AND SUCH A STAKE WAS THOUGHT TO BE RETAINED
WHERE A LARGE PROPORTION OF THE CONSIDERATION WAS IN COMMON STOCK OF
THE TRANSFEREE,  FN4  OR WHERE THE TRANSFEROR TOOK CASH AND THE ENTIRE
ISSUE OF PREFERRED STOCK OF THE TRANSFEREE CORPORATION.  FN5  AND,
WHERE THE CONSIDERATION IS REPRESENTED BY A SUBSTANTIAL PROPORTION OF
STOCK, AND THE BALANCE IN BONDS, THE TOTAL CONSIDERATION RECEIVED IS
EXEMPT FROM TAX UNDER SEC. 112(B)(4) AND 112(G).  FN6 

IN APPLYING OUR DECISION IN THE PINELLAS CASE  FN3  THE COURTS HAVE
GENERALLY HELD THAT RECEIPT OF LONG TERM BONDS AS DISTINGUISHED FROM
SHORT TERM NOTES CONSTITUTES THE RETENTION OF AN INTEREST IN THE
PURCHASING CORPORATION.  THERE HAS NATURALLY BEEN SOME DIFFICULTY IN
CLASSIFYING THE SECURITIES INVOLVED IN VARIOUS CASES.  FN7 

WE ARE OF OPINION THAT THE TERM OF THE OBLIGATIONS IS NOT MATERIAL. 
WHERE THE CONSIDERATION IS WHOLLY IN THE TRANSFEREE'S BONDS, OR PART
CASH AND PART SUCH BONDS, WE THINK IT CANNOT BE SAID THAT THE
TRANSFEROR RETAINS ANY PROPRIETARY INTEREST IN THE ENTERPRISE.  ON THE
CONTRARY, HE BECOMES A CREDITOR OF THE TRANSFEREE; AND WE DO NOT THINK
THAT THE FACT REFERRED TO BY THE CIRCUIT COURT OF APPEALS, THAT THE
BONDS WERE SECURED SOLELY BY THE ASSETS TRANSFERRED AND THAT, UPON
DEFAULT, THE BONDHOLDER WOULD RETAKE ONLY THE PROPERTY SOLD, CHANGES
HIS STATUS FROM THAT OF A CREDITOR TO ONE HAVING A PROPRIETARY STAKE,
WITHIN THE PURVIEW OF THE STATUTE. 

WE CONCLUDE THAT THE CIRCUIT COURT OF APPEALS WAS IN ERROR IN HOLDING
THAT, AS RESPECTS ANY OF THE PROPERTY TRANSFERRED TO THE WATER COMPANY,
THE TRANSACTION WAS OTHER THAN A SALE OR EXCHANGE UPON WHICH GAIN OR
LOSS MUST BE RECKONED IN ACCORDANCE WITH THE PROVISIONS OF THE REVENUE
ACT DEALING WITH THE RECOGNITION OF GAIN OR LOSS UPON A SALE OR
EXCHANGE. 

HAD THE RESPONDENT SOUGHT AND BEEN GRANTED CERTIORARI THE
PETITIONER'S TAX LIABILITY WOULD, IN THE VIEW WE HAVE EXPRESSED, BE
SUBSTANTIALLY INCREASED OVER THE AMOUNT FOUND DUE BY THE CIRCUIT COURT
OF APPEALS.  SINCE THE RESPONDENT HAS NOT DRAWN INTO QUESTION SO MUCH
OF THE JUDGMENT AS EXEMPTS FROM TAXATION GAIN TO THE IRRIGATION COMPANY
ARISING FROM TRANSFER OF ITS ASSETS OWNED BY IT ON AND PRIOR TO
NOVEMBER 4, 1931, AND THE PART OF THE LIQUIDATING DIVIDEND ATTRIBUTABLE
THERETO, WE CANNOT AFFORD HIM RELIEF FROM THAT PORTION OF THE JUDGMENT
WHICH WAS ADVERSE TO HIM. 

A RESPONDENT OR AN APPELLEE MAY URGE ANY MATTER APPEARING IN THE
RECORD IN SUPPORT OF A JUDGMENT,  FN8  BUT HE MAY NOT ATTACK IT EVEN ON
GROUNDS ASSERTED IN THE COURT BELOW, IN AN EFFORT TO HAVE THIS COURT
REVERSE IT, WHEN HE HIMSELF HAS NOT SOUGHT REVIEW OF THE WHOLE
JUDGMENT, OR OF THAT PORTION WHICH IS ADVERSE TO HIM.  FN9 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO PROCEED IN
ACCORDANCE WITH THE OPINION AND MANDATE OF THE CIRCUIT COURT OF
APPEALS.  AFFIRMED. 

FN1  SEC. 112(I) OF THE REVENUE ACT OF 1928, C. 852, 45 STAT. 791,
818. 

FN2  103 F.2D 20. 

FN3  PINELLAS ICE & COLD STORAGE CO. V. COMMISSIONER, 287 U.S. 462. 

FN4  HELVERING V. MINNESOTA TEA CO., 296 U.S. 378. 

FN5 NELSON CO. V. HELVERING, 296 U.S. 374. 

FN6  45 STAT. 816, 818.  SEE HELVERING V. WATTS, 296 U.S. 387. 

FN7  WORCESTER SALT CO. V. COMMISSIONER, 75 F.2D 251; LILIENTHAL V.
COMMISSIONER, 80 F.2D 411, 413; BURNHAM V. COMMISSIONER, 86 F.2D 776;
COMMISSIONER V. KITSELMAN, 89 F.2D 458; COMMISSIONER V. FREUND, 98 F.2D
201; COMMISSIONER V. TYNG, 106 F.2D 55; L. & E. STIRN, INC. V.
COMMISSIONER, 107 F.2D 390. 

FN8  LANGNES V. GREEN, 282 U.S. 531, 535-537; HELVERING V. GOWRAN,
302 U.S. 238, 245; TICONIC BANK V. SPRAGUE, 303 U.S. 406, 410, NOTE 3. 

FN9  THE STEPHEN MORGAN, 94 U.S. 599; MOUNT PLEASANT V. BECKWITH, 100
U.S. 514, 527; UNITED STATES V. BLACKFEATHER, 155 U.S. 180, 186;
LANDRAM V. JORDAN, 203 U.S. 56, 62; BOTHWELL V. UNITED STATES, 254 U.S.
231, 233; UNITED STATES V. AMERICAN RAILWAY EXPRESS CO., 265 U.S. 425,
435; MORLEY CONSTRUCTION CO. V. MARYLAND CASUALTY CO., 300 U.S. 185,
191. 
..END :










TANK CAR CORP. V. TERMINAL CO., 308 U.S. 422 


NO. 129.  ARGUED DECEMBER 12, 13, 1939.  - DECIDED JANUARY 2, 1940.  -
104 F.2D 903, 916, REVERSED. 


A CAR COMPANY LEASED, ON A MONTHLY RENTAL BASIS, TANK CARS TO A
SHIPPER FOR THE TRANSPORTATION OF THE LATTER'S PRODUCTS IN INTERSTATE
COMMERCE, THE CONTRACT PROVIDING THAT TARIFF CAR-MILEAGE ALLOWANCES
FROM RAILROADS FOR THE USE OF THE CARS SHOULD BE COLLECTED BY THE CAR
COMPANY AND BE CREDITED MONTHLY TO THE RENTAL ACCOUNT OF THE SHIPPER. 
THE TARIFFS CONTAINED NO PROVISION FOR PAYMENT OF SUCH ALLOWANCES
DIRECTLY TO THE SHIPPER; AND, UNDER THE CARRIERS' RULES, THEY WERE PAID
IN THIS CASE TO THE CAR COMPANY.  THE CAR COMPANY SUBSEQUENTLY REFUSED
TO PAY TO THE SHIPPER ANY EXCESS OF CAR-MILEAGE ALLOWANCES OVER THE
STIPULATED RENTS, ON THE GROUND THAT IT WOULD THUS BE PARTICIPATING IN
ILLEGAL REBATING.  THE SHIPPER THEREUPON BROUGHT SUIT IN ASSUMPSIT UPON
THE LEASE TO RECOVER THE AMOUNT OF SUCH EXCESS.  HELD: 

1.  THE SUIT WAS WITHIN THE JURISDICTION OF THE DISTRICT COURT, SINCE
THE ACTION WAS AN CRDINARY ONE IN ASSUMPSIT ON A WRITTEN CONTRACT AND
THE COURT HAD JURISDICTION OF THE PARTIES.  P. 432. 

2.  UPON DISCLOSURE OF THE TERMS AND OPERATION OF THE LEASE CONTRACT,
THE COURT SHOULD NOT HAVE PROCEEDED TO ADJUDICATE THE RIGHTS AND
LIABILITIES OF THE PARTIES IN THE ABSENCE OF A DECISION BY THE
INTERSTATE COMMERCE COMMISSION WITH RESPECT TO THE VALIDITY UNDER THE
INTERSTATE COMMERCE ACT OF THE PRACTICE INVOLVED.  P. 428. 

THE SHIPPER FURNISHED THE CARS AND WAS ENTITLED, UNDER SEC. 15(13) OF
THE INTERSTATE COMMERCE ACT, TO A REASONABLE ALLOWANCE THEREFOR.  NO
RULE OR REGULATION OF THE CARRIER MAY PROVIDE FOR THE PAYMENT OF SUCH
ALLOWANCE TO ANY OTHER PERSON.  THAT THE CAR COMPANY ACTED MERELY AS
COLLECTING AGENT FOR THE SHIPPER DOES NOT TAKE THE CASE OUT OF THE
JURISDICTION OF THE COMMISSION.  THE INQUIRY INTO THE LAWFULNESS OF THE
PRACTICE UNDER THE LEASE IS PECULIARLY WITHIN THE COMPETENCE OF THE
COMMISSION. 

3.  THE CAUSE SHOULD NOT BE DISMISSED BUT SHOULD BE HELD PENDING THE
CONCLUSION OF AN APPROPRIATE ADMINISTRATIVE PROCEEDING, THUS SAVING TO
THE DEFENDANT ANY DEFENSES WHICH IT MAY HAVE.  P. 433. 

GENERAL AMERICAN TANK CAR CORP. V. EL DORADO TERMINAL CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 533, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE PETITIONER IN A SUIT BROUGHT BY THE RESPONDENT UPON A CONTRACT OF
LEASE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS WAS AN ACTION IN ASSUMPSIT BROUGHT BY THE RESPONDENT TO RECOVER
A SUM ALLEGED TO BE DUE IT BY THE PETITIONER UNDER THE TERMS OF A CAR
LEASING AGREEMENT.  THE ANSWER ADMITTED THE EXECUTION OF THE AGREEMENT
BUT PLEADED THAT PAYMENT OF THE SUM DEMANDED WOULD AMOUNT TO THE MAKING
OF A REBATE, CONTRARY TO THE PROVISIONS OF THE ELKINS ACT.  FN1  THE
DISTRICT COURT RENDERED JUDGMENT FOR THE PETITIONER WHICH THE CIRCUIT
COURT OF APPEALS REVERSED, HOLDING THE RESPONDENT ENTITLED TO THE FULL
AMOUNT CLAIMED.  FN2  WE GRANTED CERTIORARI ON ACCOUNT OF THE
IMPORTANCE OF THE QUESTION INVOLVED AND OF THE ALLEGATION THAT THE
JUDGMENT WAS NOT IN ACCORD WITH PRIOR DECISIONS OF THIS COURT. 

THE PETITIONER IS A CORPORATION, UNAFFILIATED WITH ANY RAILROAD,
WHICH OWNS AND LEASES TANK CARS TO RAILROADS AND TO SHIPPERS FOR USE IN
TRANSPORTATION IN INTERSTATE COMMERCE.  THE RESPONDENT IS A WHOLLY
OWNED SUBSIDIARY OF EL DORADO OIL WORKS, A MANUFACTURER OF COCONUT OIL
OPERATING A PLANT AT BERKELEY, CALIFORNIA, AND BROUGHT THE ACTION AS
ASSIGNEE OF THE LATTER'S RIGHTS UNDER THE LEASE. 

SEPTEMBER 28, 1933, THE PETITIONER AND THE OIL WORKS ENTERED INTO AN
AGREEMENT WHEREBY THE FORMER LEASED TO THE LATTER FIFTY TANK CARS
DESIGNATED IN THE CONTRACT AS "PERMANENT CARS," AT A RENTAL OF $27.50
PER CAR PER MONTH.  THE PETITIONER AGREED TO SUPPLY THE OIL WORKS WITH
SUCH ADDITIONAL CARS AS IT MIGHT NEED FOR THE SHIPMENT OF ITS PRODUCTS,
ON A RENTAL BASIS OF $30.00 PER CAR PER MONTH, THESE TO BE ORDERED FROM
TIME TO TIME AS NEEDED AND RETURNED WHEN NO LONGER REQUIRED. 

THE CONTRACT PROVIDED THAT THE PETITIONER WOULD COLLECT, AND CREDIT
TO THE RENTAL ACCOUNT OF THE OIL WORKS EACH MONTH, ALL MILEAGE EARNED
BY THE CARS WHILE IN THE OIL WORKS' SERVICE, "ACCORDING TO AND SUBJECT
TO ALL RULES OF THE TARIFFS OF THE RAILROADS."  THE PETITIONER WAS TO
PAY THE COST OF REPAIRS AND MAINTENANCE BUT THE OIL WORKS WAS TO BE
RESPONSIBLE FOR DAMAGE OR DESTRUCTION OF THE CARS WHILE ON PRIVATELY
OWNED TRACKS. 

THE LEASED CARS WERE USED BY THE OIL WORKS FOR SHIPMENT OF ITS
PRODUCTS.  SUCH USE WAS IMPORTANT TO THE OIL WORKS SINCE THE RAILROADS
SERVING ITS PLANT WERE NOT PREPARED TO FURNISH SHIPPERS A FULL SUPPLY
OF THE KIND OF CARS NEEDED FOR CARRYING THE OILS IN QUESTION.  THE
RAILROAD TARIFFS, THOUGH STATING RATES ON THE OIL WORKS' PRODUCTS WHEN
SHIPPED IN TANK CARS, DISCLAIMED ANY OBLIGATION TO FURNISH CARS OF THE
REQUISITE TYPE. 

THE CARRIERS MAINTAIN TARIFFS APPLICABLE TO THE ALLOWANCES TO BE MADE
TO CAR OWNERS FOR THE USE OF TANK CARS, WHICH PROVIDE FOR PAYMENT OF
ONE AND ONE-HALF CENTS PER CAR MILE LOADED AND EMPTY.  THE TARIFFS ALSO
EMBODY RULES WHICH, DURING PART OF THE PERIOD IN CONTROVERSY, STATED
THAT MILEAGE PAYMENTS WOULD BE MADE ONLY TO THE PARTY WHOSE REPORTING
MARKS APPEARED UPON THE CARS AND DURING PART OF THE PERIOD THAT
"MILEAGE FOR THE USE OF CARS OF PRIVATE OWNERSHIP WILL BE PAID FOR
LOADED AND EMPTY MOVEMENTS ONLY TO THE CAR OWNER - NOT TO A LESSEE." 
THE RULES PRECLUDED PAYMENT OF THE MILEAGE ALLOWANCE TO THE OIL WORKS
UNDER THE CIRCUMSTANCES OF THIS CASE, SINCE THE LEASE STIPULATED THAT
ALL THE LEASED CARS SHOULD BEAR THE REPORTING MARKS OF THE PETITIONER. 

THE PETITIONER COMPLIED WITH THE PROVISIONS OF THE AGREEMENT UNTIL
JULY 2, 1934, WHEN THE INTERSTATE COMMERCE COMMISSION RENDERED ITS
DECISION IN USE OF PRIVATELY OWNED REFRIGERATOR CARS, 201 I.C.C. 323,
IN WHICH IT CONSIDERED THE PAYMENT OF MILEAGE ALLOWANCES TO SHIPPERS
EITHER DIRECTLY OR THROUGH CAR OWNERS, WHICH PAYMENTS EXCEEDED THE
TOTAL OF THE AGREED RENTAL FOR THE USE OF THE CARS AND ANY ADDITIONAL
ACTUAL EXPENSES OF THE SHIPPER IN CONNECTION WITH THE CARS.  IN THAT
CASE THE COMMISSION HELD THAT SUCH PAYMENTS OPERATED TO GIVE THE LESSEE
TRANSPORTATION OF HIS PRODUCTS AT LOWER RATES THAN THOSE PAID BY OTHER
SHIPPERS WHO USE CARS FURNISHED BY THE CARRIERS AND THUS AMOUNTED TO A
REBATE FROM THE PUBLISHED TRANSPORTATION RATES.  THE PETITIONER'S
PRACTICE HAD BEEN TO COLLECT THE MILEAGE, DEDUCT THE RENTAL DUE, AND
PAY OVER THE BALANCE MONTHLY.  AFTER THE RENDITION OF THE COMMISSION'S
DECISION THE PETITIONER COLLECTED THE MILEAGE FROM THE RAILROADS,
CREDITED THE OIL WORKS WITH THE RENTAL DUE, RETAINED THE BALANCE, AND
REFUSED TO PAY IT OVER.  THE GROUND OF ITS REFUSAL WAS THAT TO FOLLOW
THE FORMER PRACTICE WOULD RENDER IT A PARTICIPANT IN ILLEGAL REBATING. 

IT WAS DISCLOSED AT TRIAL THAT THROUGHOUT THE PERIOD COVERED BY THE
RESPONDENT'S CLAIM THE MILEAGE ALLOWANCES HAD, IN EVERY MONTH, EXCEEDED
THE RENTALS, LEAVING A SUBSTANTIAL BALANCE WHICH THE RESPONDENT
INSISTED SHOULD BE PAID TO IT.  DURING THE SEVEN MONTH PERIOD FROM
NOVEMBER 1, 1934, TO MAY 31, 1935, THIS BALANCE AMOUNTED TO
$17,614.13. 

THE DISTRICT COURT CONCLUDED THAT PAYMENT TO THE SHIPPER OF ANY
EXCESS OF THE MILEAGE ALLOWANCES OVER STIPULATED RENTS WOULD CONSTITUTE
A REBATE PROHIBITED BY THE ELKINS ACT AND, IN THAT VIEW, HELD THAT THE
RESPONDENT COULD NOT RECOVER.  THE CIRCUIT COURT OF APPEALS PERMITTED A
RECOVERY ON THE GROUND THAT SEC. 15(13)  FN3  OF THE INTERSTATE
COMMERCE ACT AUTHORIZED THE PAYMENT OF MILEAGE ALLOWANCES BY RAILROADS
FOR THE USE OF PRIVATE CARS FURNISHED BY SHIPPERS FOR THE
TRANSPORTATION OF THEIR OWN COMMODITIES; THAT THE PRACTICE HAD BEEN
APPROVED BY THE COMMISSION, AND MAXIMUM RATES FIXED BY IT; THAT THE ONE
AND ONE-HALF CENTS PER CAR MILE ALLOWANCE APPEARED IN THE CARRIERS'
PUBLISHED TARIFFS DEALING WITH THE SUBJECT AND WAS, AND WOULD REMAIN
UNTIL ACTION BY THE COMMISSION, THE LEGAL RATE PAYABLE FOR THE USE OF
SUCH CARS; THAT, WHILE IT IS OPEN TO THE COMMISSION TO INQUIRE, ON ITS
OWN MOTION OR ON COMPLAINT, AS TO ANY ABUSES IN CONNECTION WITH SUCH
TARIFF MILEAGE ALLOWANCES, UNTIL THE COMMISSION DOES ACT, THE CARRIERS
ARE JUSTIFIED IN CONTINUING TO PAY THE SCHEDULED RATES; THAT THE
SHIPPER IN THIS CASE IS THE FURNISHER OR SUPPLIER OF PRIVATELY OWNED
CARS TO THE CARRIERS, AND THE LEASE AGREEMENT CONSTITUTES THE
PETITIONER A MERE AGENT FOR THE COLLECTION AND PAYMENT OF THE MILEAGE
ALLOWANCES TO THE SHIPPER; AND THAT, CONSEQUENTLY, THE PAYMENT, BY THE
PETITIONER TO THE SHIPPER, OF ANY EXCESS OF THE MILEAGE EARNINGS IS NOT
A REBATE WITHIN THE TERMS OF THE ELKINS ACT. 

THE PETITIONER INSISTS THAT THIS CONCLUSION IS WRONG AND THAT OF THE
DISTRICT COURT CORRECT.  THE INTERSTATE COMMERCE COMMISSION, AS A
FRIEND OF THE COURT, HAS FILED A BRIEF IN WHICH IT CONTENDS, FIRST,
THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION TO ENTERTAIN THE
CAUSE, AS THE QUESTION INVOLVED IS ONE PRIMARILY FOR ADMINISTRATIVE
ACTION BY THE COMMISSION AND, SECONDLY, THAT THE PAYMENT OF THE EXCESS
CREDITS BY THE PETITIONER WOULD RESULT IN PAYMENT OF A PROHIBITED
REBATE TO THE SHIPPER. 

WE HOLD THAT THE DISTRICT COURT HAD JURISDICTION BUT THAT, UPON
DISCLOSURE OF THE TERMS AND OPERATION OF THE LEASE CONTRACT, IT SHOULD
NOT HAVE PROCEEDED TO ADJUDICATE THE RIGHTS AND LIABILITIES OF THE
PARTIES IN THE ABSENCE OF A DECISION BY THE COMMISSION WITH RESPECT TO
THE VALIDITY OF THE PRACTICE INVOLVED IN THE LIGHT OF THE PROVISIONS OF
THE INTERSTATE COMMERCE ACT. 

FREIGHT CARS ARE FACILITIES OF TRANSPORTATION, AS DEFINED BY THE
ACT.  FN4  THE RAILROADS ARE UNDER OBLIGATION, AS PART OF THEIR PUBLIC
SERVICE, TO FURNISH THESE FACILITIES UPON REASONABLE REQUEST OF A
SHIPPER,  FN5  AND THEREFORE HAVE THE EXCLUSIVE RIGHT TO FURNISH THEM. 
THEY ARE NOT, HOWEVER, UNDER AN OBLIGATION TO OWN SUCH CARS.  THEY MAY,
IF THEY DEEM IT ADVISABLE, LEASE THEM SO AS TO BE IN A POSITION TO
FURNISH THEM ACCORDING TO THE DEMAND OF THE SHIPPING PUBLIC AND, IF THE
CARRIERS DO SO LEASE CARS, THE TERMS ON WHICH THEY OBTAIN THEM ARE NOT
THE SUBJECT OF DIRECT CONTROL BY THE INTERSTATE COMMERCE COMMISSION. 
FN6  IF THE CARRIERS PAY TOO MUCH FOR THE HIRE OF SUCH CARS THE
COMMISSION MAY, OF COURSE, REFUSE TO ALLOW THEM TO REFLECT SUCH EXCESS
COST IN THEIR TARIFFS.  THE LESSOR OF SUCH CARS TO A RAILROAD, HOWEVER,
IS NOT ITSELF A CARRIER OR ENGAGED IN ANY PUBLIC SERVICE.  THEREFORE
ITS PRACTICES LIE WITHOUT THE REALM OF THE COMMISSION'S COMPETENCE. 

CARS THUS LEASED AND USED BY THE CARRIERS ARE TO BE DISTINGUISHED
FROM SO-CALLED PRIVATE CARS WITH WHICH WE ARE HERE CONCERNED. 
SHIPPERS, PARTICULARLY THOSE WHO REQUIRE A SPECIALIZED FORM OF FREIGHT
CAR FOR TRANSPORTATION OF THEIR PRODUCTS, MAY, AND DO, OWN CARS ADAPTED
FOR THE PURPOSE.  THEY MAY, AND DO, IN LIEU OF OWNING SUCH FACILITIES,
RENT THEM FROM THE OWNERS.  CAR COMPANIES OWNING A LARGE NUMBER OF A
SPECIAL TYPE OF FREIGHT CAR, SOME AFFILIATES OR SUBSIDIARIES OF
RAILROADS AND OTHERS, LIKE THE PETITIONER, WHOLLY INDEPENDENT AND
FINANCED BY PRIVATE CAPITAL, HAVE, FOR MANY YEARS, BEEN IN THE BUSINESS
OF LEASING CARS TO SHIPPERS.  THE PRACTICE HAS BEEN WELL KNOWN AND WELL
UNDERSTOOD.  IT IS ENTIRELY LAWFUL AND THE COMMISSION HAS SO HELD.  FN7
BUT THE PRACTICE CANNOT MODIFY THE REQUIREMENTS OF PARAGRAPH (13) OF
SEC. 15,  FN8  WHICH GOVERNS THE PAYMENT OF ALLOWANCES FOR PRIVATE
CARS, AND INVESTS THE COMMISSION WITH AUTHORITY TO FIND AND DECLARE
WHAT ALLOWANCES ARE REASONABLE. 

AS THE CIRCUIT COURT OF APPEALS HAS POINTED OUT, DIFFERENT SHIPPERS
MAY HAVE DIFFERING COSTS IN RESPECT OF PRIVATELY OWNED CARS FURNISHED
THE CARRIERS.  NEVERTHELESS, AS THE ALLOWANCES TO BE MADE THEM BY THE
CARRIERS FOR THE USE OF SUCH CARS MUST BE THE SUBJECT OF PUBLISHED
SCHEDULES, FN9  AND MUST BE JUST AND REASONABLE,  FN10  THE COMMISSION
IS COMPELLED TO ASCERTAIN IN THE LIGHT OF PAST AND PRESENT EXPERIENCE A
FAIR AND REASONABLE COMPENSATION TO COVER SUCH COSTS AND PRESCRIBE A
UNIFORM RATE WHICH WILL REFLECT SUCH EXPERIENCE.  IT IS INEVITABLE THAT
SOME SHIPPERS MAY BE ABLE TO FURNISH FACILITIES AT LESS THAN THE
PUBLISHED ALLOWANCE WHILE OTHERS MAY FIND THEIR COSTS IN EXCESS OF IT.
THIS FACT, HOWEVER, DOES NOT MILITATE AGAINST THE FIXING OF A UNIFORM
RATE APPLICABLE TO SHIPPERS PROPERLY CLASSIFIED BY THE COMMISSION. 
FN11 

FROM WHAT HAS BEEN SAID IT RESULTS THAT THE SHIPPER IN THIS CASE WAS
PERMITTED BY LAW TO FURNISH FREIGHT CARS FOR THE TRANSPORTATION OF ITS
PRODUCTS AND TO BE PAID A REASONABLE ALLOWANCE FOR PERFORMING THIS
PORTION OF THE PUBLIC SERVICE WHICH THE CARRIER WAS BOUND TO RENDER,
AND THAT THE LAW REQUIRES THAT THE AMOUNT AND CONDITIONS OF PAYMENT OF
SUCH ALLOWANCE SHALL BE SET FORTH IN A PUBLISHED TARIFF.  IF THIS IS
NOT DONE, THE SHIPPER MAY COMPLAIN TO THE COMMISSION, TO THE END THAT A
PROPER ALLOWANCE BE ASCERTAINED AND MADE EFFECTIVE BY A SCHEDULE DULY
PUBLISHED.  IN THE PRESENT CASE THIS HAS NOT BEEN DONE.  NOR HAS THE
SHIPPER EVER APPLIED TO THE COMMISSION FOR ITS DECISION AS TO WHAT WAS
A PROPER ALLOWANCE FOR THE CARS FURNISHED BY IT. 

AS WE HAVE STATED, THE MILEAGE TARIFFS PUBLISHED BY THE AMERICAN
RAILWAY ASSOCIATION, WHICH GOVERN THE INSTANT CASE, REQUIRE THAT
PRIVATE CARS BE MARKED WITH SO-CALLED REPORTING MARKS OR INITIALS
TOGETHER WITH A CAR NUMBER.  THESE MARKS ARE FOR THE PURPOSE OF KEEPING
RECORDS OF THE CAR'S MOVEMENTS AND MILEAGE.  APPROPRIATE MARKS TO
DESIGNATE PRIVATELY OWNED CARS ARE ASSIGNED BY THE RAILWAY ASSOCIATION
TO THEIR OWNERS.  THE RULES APPEARING IN THE TARIFF DURING A PORTION OF
THE PERIOD IN QUESTION PROVIDED THAT THE MILEAGE FOR THE USE OF CARS OF
PRIVATE OWNERSHIP WOULD BE PAID TO THE CAR OWNER OR TO THE PARTY WHO
HAD ACQUIRED THE CAR OR CARS AS SHOWN BY THE PERMANENT REPORTING
MARKS.  THE LEASE AGREEMENT PROVIDED THAT THE CARS SHOULD BEAR THE
REPORTING MARKS OF THE PETITIONER.  THUS THE CARRIER WAS BOUND BY ITS
RULES TO PAY THE ALLOWANCE TO THE PETITIONER.  DURING A PORTION OF THE
TERM IN CONTROVERSY THE RULES PROVIDED THAT MILEAGE COULD BE PAID ONLY
TO THE CAR OWNER, NOT TO A LESSEE.  HERE AGAIN THE RULES PRECLUDED THE
PAYMENT OF THE ALLOWANCE BY THE CARRIER TO THE SHIPPER. 

THE CIRCUIT COURT OF APPEALS HAS HELD, AND WE THINK CORRECTLY, THAT
THE SHIPPER - THE OIL WORKS - FURNISHED THE CARS TO THE CARRIER IN THE
PRESENT INSTANCE.  THE PETITIONER DID NOT.  THE SHIPPER WAS THEN
ENTITLED, UNDER THE PLAIN TERMS OF SEC. 15(13), TO BE PAID BY THE
CARRIER A JUST AND REASONABLE ALLOWANCE FOR PROVIDING THE FACILITY.  IT
SEEMS CLEAR THAT NO RULE OR REGULATION OF THE CARRIER MAY PROVIDE FOR
THE PAYMENT OF SUCH ALLOWANCE TO ANY OTHER PERSON.  AND WE THINK THE
CONSIDERATION THAT, IN THIS CASE, THE PETITIONER ACTED MERELY AS
COLLECTING AGENT FOR THE SHIPPER, DOES NOT TAKE THE CASE OUT OF THE
COMMISSION'S JURISDICTION.  IF IT SHOULD APPEAR THAT, WITH RESPECT TO
THE TANK CARS IN QUESTION, THE SHIPPER-LESSEE IS MAKING SUBSTANTIAL
PROFITS ON LEASED CARS, BY REASON OF THE EXCESS OF THE MILEAGE
ALLOWANCES OVER THE RENTALS PAID, IT MIGHT IN THE LIGHT OF ALL THE
FACTS BE FOUND THAT THE SHIPPER IS, IN THE RESULT, OBTAINING
TRANSPORTATION AT A LOWER COST THAN OTHERS WHO USE CARS ASSIGNED THEM
BY THE CARRIERS OR OWN THEIR OWN CARS.  THE COMMISSION HAS FOUND THAT,
IN THE CASE OF REFRIGERATOR CARS, HELD UNDER SIMILAR LEASES, THIS HAS
BEEN THE CASE.  FN12  THE INQUIRY INTO THE LAWFULNESS OF THE PRACTICE
IS ONE PECULIARLY WITHIN THE COMPETENCE OF THE COMMISSION.  FN13    AS
THE TARIFFS NOW CONTAIN NO PROVISION FOR THE PAYMENT OF CAR MILEAGE
ALLOWANCES BY THE RAILROAD TO THE SHIPPER DIRECTLY, AND AS, UPON THE
FACE OF THINGS AS DISCLOSED BY THIS RECORD, THE SHIPPER IS APPARENTLY
REAPING A SUBSTANTIAL PROFIT FROM THE USE OF THE CARS, A CLEAR CASE IS
MADE FOR THE EXERCISE OF THE ADMINISTRATIVE JUDGMENT OF THE
COMMISSION.  THE CIRCUIT COURT OF APPEALS, WITHOUT SUPPORTING EVIDENCE
IN THE RECORD AS TO ANY SPECIFIC ITEMS, SAID THAT THERE ARE OBVIOUSLY
OTHER EXPENSES WHICH THE SHIPPER MUST BEAR OVER AND ABOVE THE ACTUAL
RENTAL PAID.  IF THIS WERE SO, THE REFLECTION OF THOSE EXPENSES, AS
WELL AS THE RENTAL ITSELF, IN THE ALLOWANCE PAID BY THE CARRIER TO THE
SHIPPER FOR THE USE OF THE LATTER'S CARS, WOULD BE A MATTER FOR THE
ADMINISTRATIVE JUDGMENT OF THE COMMISSION AND NOT FOR DETERMINATION BY
A COURT.  FN14 

WE HAVE SAID THAT THE COMMISSION INSISTS THE DISTRICT COURT WAS
WITHOUT JURISDICTION OF THE CAUSE.  WITH THIS WE DO NOT AGREE.  THE
ACTION WAS AN ORDINARY ONE IN ASSUMPSIT ON A WRITTEN CONTRACT.  THE
COURT HAD JURISDICTION OF THE SUBJECT MATTER AND OF THE PARTIES.  BUT
IT APPEARED HERE, AS IT DID IN MITCHELL COAL CO. V. PENNSYLVANIA R.
CO., 230 U.S. 247, THAT THE QUESTION OF THE REASONABLENESS AND LEGALITY
OF THE PRACTICES OF THE PARTIES WAS SUBJECTED BY THE INTERSTATE
COMMERCE ACT TO THE ADMINISTRATIVE AUTHORITY OF THE INTERSTATE COMMERCE
COMMISSION.  THE POLICY OF THE ACT IS THAT REASONABLE ALLOWANCES AND
PRACTICES, WHICH SHALL NOT OFFEND AGAINST THE PROHIBITIONS OF THE
ELKINS ACT, ARE TO BE FIXED AND SETTLED AFTER FULL INVESTIGATION BY THE
COMMISSION, AND THAT THERE IS REMITTED TO THE COURTS ONLY THE FUNCTION
OF ENFORCING CLAIMS ARISING OUT OF THE FAILURE TO COMPLY WITH THE
COMMISSION'S LAWFUL ORDERS. 

WHEN IT APPEARED IN THE COURSE OF THE LITIGATION THAT AN
ADMINISTRATIVE PROBLEM, COMMITTED TO THE COMMISSION, WAS INVOLVED, THE
COURT SHOULD HAVE STAYED ITS HAND PENDING THE COMMISSION'S
DETERMINATION OF THE LAWFULNESS AND REASONABLENESS OF THE PRACTICES
UNDER THE TERMS OF THE ACT.  THERE SHOULD NOT BE A DISMISSAL, BUT, AS
IN MITCHELL COAL CO. V. PENNSYLVANIA R. CO., SUPRA, THE CAUSE SHOULD BE
HELD PENDING THE CONCLUSION OF AN APPROPRIATE ADMINISTRATIVE
PROCEEDING.  THUS ANY DEFENSES THE PETITIONER MAY HAVE WILL BE SAVED TO
IT.  FN15 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY TO THIS OPINION.  REVERSED. 

FN1  ACT OF FEBRUARY 19, 1903, C. 708, SEC. 1, 32 STAT. 847, AS
AMENDED. 

"(3).  RECEIVING REBATES; ADDITIONAL PENALTY AND RECOVERY THEREOF.  -
ANY PERSON, CORPORATION, OR COMPANY WHO SHALL DELIVER PROPERTY FOR
INTERSTATE TRANSPORTATION TO ANY COMMON CARRIER, SUBJECT TO THE
PROVISIONS OF SECTIONS 41, 42, OR 43 OF THIS TITLE, OR FOR WHOM AS
CONSIGNOR OR CONSIGNEE, ANY SUCH CARRIER SHALL TRANSPORT PROPERTY FROM
ONE STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA TO ANY OTHER STATE,
TERRITORY, OR THE DISTRICT OF COLUMBIA, OR FOREIGN COUNTRY, WHO SHALL
KNOWINGLY BY EMPLOYEE, AGENT, OFFICER, OR OTHERWISE, DIRECTLY OR
INDIRECTLY, BY OR THROUGH ANY MEANS OR DEVICE WHATSOEVER, RECEIVE OR
ACCEPT FROM SUCH COMMON CARRIER ANY SUM OF MONEY OR ANY OTHER VALUABLE
CONSIDERATION AS A REBATE OR OFFSET AGAINST THE REGULAR CHARGES FOR
TRANSPORTATION OF SUCH PROPERTY, AS FIXED BY THE SCHEDULES OF RATES
PROVIDED FOR IN SAID SECTIONS, SHALL IN ADDITION TO ANY PENALTY
PROVIDED BY SAID SECTIONS FORFEIT TO THE UNITED STATES A SUM OF MONEY
THREE TIMES THE AMOUNT OF MONEY SO RECEIVED OR ACCEPTED AND THREE TIMES
THE VALUE OF ANY OTHER CONSIDERATION SO RECEIVED OR ACCEPTED, TO BE
ASCERTAINED BY THE TRIAL COURT; AND THE ATTORNEY GENERAL OF THE UNITED
STATES IS AUTHORIZED AND DIRECTED, WHENEVER HE HAS REASONABLE GROUNDS
TO BELIEVE THAT ANY SUCH PERSON, CORPORATION, OR COMPANY HAS KNOWINGLY
RECEIVED OR ACCEPTED FROM ANY SUCH COMMON CARRIER ANY SUM OF MONEY OR
OTHER VALUABLE CONSIDERATION AS A REBATE OR OFFSET AS AFORESAID, TO
INSTITUTE IN ANY COURT OF THE UNITED STATES OF COMPETENT JURISDICTION,
A CIVIL ACTION TO COLLECT THE SAID SUM OR SUMS SO FORFEITED AS
AFORESAID; AND IN THE TRIAL OF SAID ACTION ALL SUCH REBATES OR OTHER
CONSIDERATIONS SO RECEIVED OR ACCEPTED FOR A PERIOD OF SIX YEARS PRIOR
TO THE COMMENCEMENT OF THE ACTION, MAY BE INCLUDED THEREIN, AND THE
AMOUNT RECOVERED SHALL BE THREE TIMES THE TOTAL AMOUNT OF MONEY, OR
THREE TIMES THE TOTAL VALUE OF SUCH CONSIDERATION, SO RECEIVED OR
ACCEPTED, OR BOTH, AS THE CASE MAY BE."  U.S.C., TIT. 49, SEC. 41(3). 

FN2  104 F.2D 903, 916. 

FN3  U.S.C. TIT. 49, SEC. 15(13). 

FN4  49 U.S.C. SEC. 1(3). 

FN5  49 U.S.C. SEC. 1(10)(11); PENNSYLVANIA R. CO. V. PURITAN COAL
CO., 237 U.S. 121; PENNSYLVANIA R. CO. V. SONMAN SHAFT COAL CO., 242
U.S. 120. 

FN6  ELLIS V. INTERSTATE COMMERCE COMM'N, 237 U.S. 434. 

FN7  IN THE MATTER OF PRIVATE CARS, 50 I.C.C. 652. 

FN8  ALLOWANCE FOR SERVICE OR FACILITIES FURNISHED BY SHIPPER.  - IF
THE OWNER OF PROPERTY TRANSPORTED UNDER THIS CHAPTER DIRECTLY OR
INDIRECTLY RENDERS ANY SERVICE CONNECTED WITH SUCH TRANSPORTATION, OR
FURNISHES ANY INSTRUMENTALITY USED THEREIN, THE CHARGE AND ALLOWANCE
THEREFOR SHALL BE NO MORE THAN IS JUST AND REASONABLE, AND THE
COMMISSION MAY, AFTER HEARING ON A COMPLAINT OR ON ITS OWN INITIATIVE,
DETERMINE WHAT IS A REASONABLE CHARGE AS THE MAXIMUM TO BE PAID BY THE
CARRIER OR CARRIERS FOR THE SERVICES SO RENDERED OR FOR THE USE OF THE
INSTRUMENTALITY SO FURNISHED, AND FIX THE SAME BY APPROPRIATE ORDER,
WHICH ORDER SHALL HAVE THE SAME FORCE AND EFFECT AND BE ENFORCED IN
LIKE MANNER AS THE ORDERS ABOVE PROVIDED FOR UNDER THIS SECTION.  49
U.S.C. SEC. 15(13). 

FN9  49 U.S.C. SEC. 6(1)(7). 

FN10  49 U.S.C. SEC. 15(13), SUPRA, NOTE 9. 

FN11  COMPARE INTERSTATE COMMERCE COMM'N V. DIFFENBAUGH, 222 U.S. 42,
45. 

FN12  USE OF PRIVATELY OWNED REFRIGERATOR CARS, 201 I.C.C. 323. 

FN13  GREAT NORTHERN RY. CO. V. MERCHANTS ELEVATOR CO., 259 U.S. 285,
290, 291. 

FN14  MITCHELL COAL CO. V. PENNSYLVANIA R. CO., 230 U.S. 247;
MORRISDALE COAL CO. V. PENNSYLVANIA R. CO., 230 U.S. 304. 

FN15  COMPARE MORRISDALE COAL CO. V. PENNSYLVANIA R. CO., 230 U.S.
304, 314, WHERE NO RIGHTS COULD BE SAVED BY RETAINING THE CAUSE; AND
ST. LOUIS, B. & M. RY. CO. V. BROWNSVILLE DISTRICT, 304 U.S. 295, 301,
WHERE THE DISTRICT COURT WAS ASKED TO MAKE AN ORDER WHICH THE
COMMISSION ALONE HAD AUTHORITY TO MAKE. 
..END :


















KALB V. FEUERSTEIN, 308 U.S. 433 


NO. 120.  ARGUED DECEMBER 15, 1939.  - DECIDED JANUARY 2, 1940.  - 231
WIS. 185, 186 - 285 N.W. 431, REVERSED. 


1.  THE EFFECT OF THE FILING OF A PETITION FOR A COMPOSITION OR
EXTENSION OF TIME UNDER SEC. 75 OF THE BANKRUPTCY ACT UPON A STATE
COURT'S JURISDICTION OF A PENDING PROCEEDING TO FORECLOSE A MORTGAGE ON
THE PETITIONER'S PROPERTY, IS A FEDERAL QUESTION.  P. 438. 

2.  THE FILING OF A PETITION BY A FARMER UNDER SEC. 75 OF THE
BANKRUPTCY ACT FOR A COMPOSITION OR EXTENSION OF TIME TO PAY HIS DEBTS,
OPERATES IPSO FACTO AS A STAY ON THE POWER OF A STATE COURT, IN A
PENDING PROCEEDING TO FORECLOSE A MORTGAGE ON HIS PROPERTY, TO PROCEED
WITH FORECLOSURE, TO CONFIRM THE FORECLOSURE SALE, AND TO DISPOSSESS
UNDER IT.  PP. 438, 440. 

3.  THE ACTION OF THE STATE COURT IN THIS CASE IN PROCEEDING
CONTRARIWISE, WITHOUT THE CONSENT OF THE BANKRUPTCY COURT, WAS NOT
MERELY ERRONEOUS, BUT WAS IN EXCESS OF ITS AUTHORITY, VOID, AND SUBJECT
TO COLLATERAL ATTACK.  AND WHETHER THE JURISDICTION OF THE STATE COURT
TO PROCEED THUS WAS CONTESTED IN THE FORECLOSURE PROCEEDING, OR COULD
HAVE BEEN CONTESTED, IS IMMATERIAL.  PP. 438, 440. 

4.  THE LANGUAGE AND THE BROAD POLICY OF THE FEDERAL ACT, AS WELL AS
ITS LEGISLATIVE HISTORY, SUPPORT THIS CONSTRUCTION; AND, AS SO
CONSTRUED, THE ACT WAS WITHIN THE PLENARY POWER OF CONGRESS IN RESPECT
OF THE SUBJECT OF BANKRUPTCY.  PP. 439-441. 

5.  THE LIABILITY IN TORT OF THE STATE COURT JUDGE, THE SHERIFF WHO
EXECUTED THE WRIT OF ASSISTANCE, AND THE MORTGAGEES, FOR SUCH ACTION AS
WAS TAKEN AGAINST THE FARMER-DEBTOR WITHOUT THE AUTHORITY OF LAW, IS TO
BE DETERMINED ACCORDING TO THE STATE LAW.  P. 443. 

KALB ET UX. V. FEUERSTEIN ET UX.* 

*TOGETHER WITH NO. 121, KALB V. LUCE ET AL., ALSO ON APPEAL FROM THE
SUPREME COURT OF WISCONSIN. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

APPEALS FROM AFFIRMANCES OF JUDGMENTS DISMISSING THE COMPLAINTS IN TWO
CASES.  FOR EARLIER OPINIONS OF THE STATE SUPREME COURT, SEE 228 WIS.
519, 525; 279 N.W. 685, 687; ALSO 280 N.W. 725, 726. 

INDEPENDENT AND ADEQUATE NON-FEDERAL GROUNDS SUPPORT THE STATE COURT
DECISION. 

THE JUDGE, WHO ACTED IN HIS JUDICIAL CAPACITY; THE SHERIFF, WHO ACTED
IN HIS OFFICIAL CAPACITY; AND LITIGANTS, WHO MERELY SOUGHT LEGAL
RIGHTS, ARE IMMUNE FROM LIABILITY FOR DAMAGES.  CITING MANY CASES. 

THE COUNTY COURT ORDERS ARE VOIDABLE AND NOT VOID, AND NOT SUBJECT TO
COLLATERAL ATTACK.  BRADLEY V. FISHER, 13 WALL.  335; DOWELL V.
APPLEGATE, 152 U.S. 327; FREEMAN ON JUDGMENTS, PP. 718-719.  WISCONSIN
DECISIONS ARE CONTROLLING AND SUPPORT THIS CONTENTION.  DISTINGUISHING
WRIGHT V. UNION CENTRAL LIFE INS. CO., 304 U.S. 502. 

THE FILING OF THE AMENDED PETITION UNDER SEC. 75 DID NOT EFFECT AN
AUTOMATIC STAY OF THE FORECLOSURE PROCEEDINGS PENDING IN THE COUNTY
COURT.  THAT COURT HAD JURISDICTION TO CONFIRM THE SALE PREVIOUSLY
MADE. 

THE BANKRUPTCY ACT SUBJECTS TO EXCLUSIVE FEDERAL JURISDICTION ONLY
THE FARMER AND PROPERTY NOT IN CONTROL OF SOME OTHER COURT.  IN RE
PRICE, 16 F.SUPP.  836.  DISTINGUISHING WRIGHT V. VINTON BRANCH, 300
U.S. 440; WRIGHT V. UNION CENTRAL LIFE INS. CO., SUPRA; ADAIR V. BANK
OF AMERICA ASSN., 303 U.S. 350.  SEE EX PARTE BALDWIN, 291 U.S. 610;
STRATON V. NEW, 283 U.S. 318. 

THE CASES CITED BY THE APPELLANTS IN SUPPORT OF THEIR CONTENTION THAT
SEC. 75 IS SELF-EXECUTING DO NOT APPLY.  DISTINGUISHING MAY V.
HENDERSON, 268 U.S. 111; ISAACS V. HOBBS TIE & TIMBER CO., 282 U.S.
734; GROSS V. IRVING TRUST CO., 289 U.S. 342; ACME HARVESTER CO. V.
BEEKMAN, 222 U.S. 300. 

THE FULL FAITH AND CREDIT CLAUSE REQUIRES RECOGNITION OF THE SALE AND
PROCEEDINGS IN THE STATE COURT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE FARMERS.  TWO OF APPELLEES, AS MORTGAGEES, BEGAN
FORECLOSURE ON APPELLANTS' FARM FN1  MARCH 7, 1933, IN THE WALWORTH
(WISCONSIN) COUNTY COURT; JUDGMENT OF FORECLOSURE WAS ENTERED APRIL 21,
1933; JULY 20, 1935, THE SHERIFF SOLD THE PROPERTY UNDER THE JUDGMENT;
SEPTEMBER 16, 1935, WHILE APPELLANT ERNEST NEWTON KALB HAD DULY PENDING
FN2  IN THE BANKRUPTCY COURT A PETITION FOR COMPOSITION AND EXTENSION
OF TIME TO PAY HIS DEBTS UNDER SEC. 75 OF THE BANKRUPTCY ACT (FRAZIER
LEMKE ACT),  FN3  THE WALWORTH COUNTY COURT GRANTED THE MORTGAGEES'
MOTION FOR CONFIRMATION OF THE SHERIFF'S SALE; NO STAY OF THE
FORECLOSURE OR OF THE SUBSEQUENT ACTION TO ENFORCE IT WAS EVER SOUGHT
OR GRANTED IN THE STATE OR BANKRUPTCY COURT; DECEMBER 16, 1935, THE
MORTGAGEES, WHO HAD PURCHASED AT THE SHERIFF'S SALE, OBTAINED A WRIT OF
ASSISTANCE FROM THE STATE COURT; AND MARCH 12, 1936, THE SHERIFF
EXECUTED THE WRIT BY EJECTING APPELLANTS AND THEIR FAMILY FROM THE
MORTGAGED FARM. 

THE QUESTIONS IN BOTH NO. 120 AND NO. 121 ARE WHETHER THE WISCONSIN
COUNTY COURT HAD JURISDICTION, WHILE THE PETITION UNDER THE FRAZIER
LEMKE ACT WAS PENDING IN THE BANKRUPTCY COURT, TO CONFIRM THE SHERIFF'S
SALE AND ORDER APPELLANTS DISPOSSESSED, AND, IF IT DID NOT, WHETHER ITS
ACTION IN THE ABSENCE OF DIRECT APPEAL IS SUBJECT TO COLLATERAL
ATTACK. 

NO. 120.  AFTER EJECTION FROM THEIR FARM, APPELLANTS BROUGHT AN
ACTION IN EQUITY IN THE CIRCUIT COURT OF WALWORTH COUNTY, WISCONSIN,
AGAINST THE MORTGAGEES WHO HAD PURCHASED AT THE SHERIFF'S SALE, FOR
RESTORATION OF POSSESSION, FOR CANCELLATION OF THE SHERIFF'S DEED AND
FOR REMOVAL OF THE MORTGAGEES FROM THE FARM.  DEMURRER WAS SUSTAINED
FOR FAILURE TO STATE A CAUSE OF ACTION AND THE COMPLAINT WAS
DISMISSED.  THE SUPREME COURT OF WISCONSIN AFFIRMED.  FN4 

NO. 121 IS A SUIT AT LAW IN THE STATE COURT BY APPELLANT ERNEST
NEWTON KALB AGAINST THE MORTGAGEES, THE SHERIFF AND THE COUNTY COURT
JUDGE WHO CONFIRMED THE FORECLOSURE SALE AND ISSUED THE WRIT OF
ASSISTANCE.  DAMAGES ARE SOUGHT FOR CONSPIRACY TO DEPRIVE APPELLANT OF
POSSESSION, FOR ASSAULT AND BATTERY, AND FOR FALSE IMPRISONMENT.  AS IN
NO. 120, DEMURRER WAS SUSTAINED, AND THE SUPREME COURT OF WISCONSIN
AFFIRMED.  FN5 

IN ITS FIRST OPINION THE SUPREME COURT OF WISCONSIN SAID:  "IT IS THE
CONTENTION OF THE PLAINTIFF (MORTGAGOR) THAT THIS STATUTE IS SELF
EXECUTING,  - THAT IS, THAT IT REQUIRES NO APPLICATION TO THE STATE OR
FEDERAL COURT IN WHICH FORECLOSURE PROCEEDINGS ARE PENDING FOR A STAY;
IN OTHER WORDS, THAT IT PROVIDES FOR A STATUTORY AND NOT FOR A JUDICIAL
STAY.  PLAINTIFF'S CLAIMS UNDER THE BANKRUPTCY ACT PRESENT A QUESTION
WHICH CLEARLY ARISES UNDER THE LAWS OF THE UNITED STATES AND THEREFORE
PRESENT A FEDERAL QUESTION UPON WHICH DETERMINATION OF THE FEDERAL
COURTS IS CONTROLLING."  ADDRESSING ITSELF SOLELY TO THIS FEDERAL
QUESTION OF CONSTRUING THE FRAZIER-LEMKE ACT, THE WISCONSIN COURT
DECIDED THAT THE FEDERAL ACT DID NOT ITSELF AS AN AUTOMATIC STATUTORY
STAY TERMINATE THE STATE COURT'S JURISDICTION WHEN THE FARMER FILED HIS
PETITION IN THE BANKRUPTCY COURT.  SINCE THERE HAD BEEN NO JUDICIAL
STAY, IT HELD THAT THE CONFIRMATION OF SALE AND WRIT OF ASSISTANCE WERE
NOT IN VIOLATION OF THE ACT. 

APPELLEES INSIST, HOWEVER, THAT THE WISCONSIN COURT ON REHEARING
RESTED ITS JUDGMENT ON AN ADEQUATE NON-FEDERAL GROUND.  IF THAT WERE
THE FACT, WE WOULD NOT, UNDER ACCEPTED PRACTICE, REACH THE STATE
COURT'S CONSTRUCTION OF THE FEDERAL STATUTE.  FN6  THE STATEMENT ON
REHEARING RELIED ON AS CONSTITUTING THE NON-FEDERAL GROUND WAS:  "WE
NEED NOT CONSIDER NOR DISCUSS THE QUESTION WHETHER THE CONGRESS HAS
POWER TO DIVEST THE JURISDICTION OF A STATE COURT WHICH HAS ONCE
ATTACHED.  THAT QUESTION IS NOT PRESENTED BY THIS RECORD.  IT WOULD
SEEM FROM A CONSIDERATION OF SEC. 75 AS AMENDED THAT THE FILING OF THE
PETITION AUTOMATICALLY OPERATED TO EXTEND THE PERIOD OF REDEMPTION.  IT
IS POSSIBLE THAT THAT STATE OF FACTS IF MADE TO APPEAR WOULD MAKE THE
ORDER OF THE TRIAL COURT ERRONEOUS BUT THE ORDER WOULD BE WITHIN THE
POWER OF THE COURT TO MAKE.  NO APPEAL HAVING BEEN TAKEN, NO SHOWING
HAVING BEEN MADE IN THE STATE COURT, AN ORDER OF SALE HAVING BEEN
CONFIRMED AND THE PURCHASER PUT IN POSSESSION, THE PLAINTIFF IS IN NO
POSITION TO CLAIM THAT THE ORDER OF THE CIRCUIT COURT IS VOID." 

BUT IF APPELLANTS ARE RIGHT IN THEIR CONTENTION THAT THE FEDERAL ACT
OF ITSELF, FROM THE MOMENT THE PETITION WAS FILED AND SO LONG AS IT
REMAINED PENDING, OPERATED, IN THE ABSENCE OF THE BANKRUPTCY COURT'S
CONSENT, TO OUST THE JURISDICTION OF THE STATE COURT SO AS TO STAY ITS
POWER TO PROCEED WITH FORECLOSURE, TO CONFIRM A SALE, AND TO ISSUE AN
ORDER EJECTING APPELLANTS FROM THEIR FARM, THE ACTION OF THE WALWORTH
COUNTY COURT WAS NOT MERELY ERRONEOUS BUT WAS BEYOND ITS POWER, VOID,
AND SUBJECT TO COLLATERAL ATTACK.  AND THE DETERMINATION WHETHER THE
ACT DID SO OPERATE IS A CONSTRUCTION OF THAT ACT AND A FEDERAL
QUESTION. 

IT IS GENERALLY TRUE THAT A JUDGMENT BY A COURT OF COMPETENT
JURISDICTION BEARS A PRESUMPTION OF REGULARITY AND IS NOT THEREAFTER
SUBJECT TO COLLATERAL ATTACK.  FN7  BUT CONGRESS, BECAUSE ITS POWER
OVER THE SUBJECT OF BANKRUPTCY IS PLENARY, MAY BY SPECIFIC BANKRUPTCY
LEGISLATION CREATE AN EXCEPTION TO THAT PRINCIPLE AND RENDER JUDICIAL
ACTS TAKEN WITH RESPECT TO THE PERSON OR PROPERTY OF A DEBTOR WHOM THE
BANKRUPTCY LAW PROTECTS NULLITIES AND VULNERABLE COLLATERALLY.  FN8
ALTHOUGH THE WALWORTH COUNTY COURT HAD GENERAL JURISDICTION OVER
FORECLOSURES UNDER THE LAW OF WISCONSIN, FN9  A PEREMPTORY PROHIBITION
BY CONGRESS IN THE EXERCISE OF ITS SUPREME POWER OVER BANKRUPTCY THAT
NO STATE COURT HAVE JURISDICTION OVER A PETITIONING FARMER-DEBTOR OR
HIS PROPERTY, WOULD HAVE RENDERED THE CONFIRMATION OF SALE AND ITS
ENFORCEMENT BEYOND THE COUNTY COURT'S POWER AND NULLITIES SUBJECT TO
COLLATERAL ATTACK.  FN10  THE STATES CANNOT, IN THE EXERCISE OF CONTROL
OVER LOCAL LAWS AND PRACTICE, VEST STATE COURTS WITH POWER TO VIOLATE
THE SUPREME LAW OF THE LAND.  FN11  THE CONSTITUTION GRANTS CONGRESS
EXCLUSIVE POWER TO REGULATE BANKRUPTCY AND UNDER THIS POWER CONGRESS
CAN LIMIT THE JURISDICTION WHICH COURTS, STATE OR FEDERAL, CAN EXERCISE
OVER THE PERSON AND PROPERTY OF A DEBTOR WHO DULY INVOKES THE
BANKRUPTCY LAW.  IF CONGRESS HAS VESTED IN THE BANKRUPTCY COURTS
EXCLUSIVE JURISDICTION OVER FARMER-DEBTORS AND THEIR PROPERTY, AND HAS
BY ITS ACT WITHDRAWN FROM ALL OTHER COURTS ALL POWER UNDER ANY
CIRCUMSTANCES TO MAINTAIN AND ENFORCE FORECLOSURE PROCEEDINGS AGAINST
THEM, ITS ACT IS THE SUPREME LAW OF THE LAND WHICH ALL COURTS - STATE
AND FEDERAL - MUST OBSERVE.  THE WISDOM AND DESIRABILITY OF AN
AUTOMATIC STATUTORY OUSTER OF JURISDICTION OF ALL EXCEPT BANKRUPTCY
COURTS OVER FARMER-DEBTORS AND THEIR PROPERTY WERE CONSIDERATIONS FOR
CONGRESS ALONE. 

WE THINK THE LANGUAGE AND BROAD POLICY OF THE FRAZIER-LEMKE ACT
CONCLUSIVELY DEMONSTRATE THAT CONGRESS INTENDED TO, AND DID DEPRIVE THE
WISCONSIN COUNTY COURT OF THE POWER AND JURISDICTION TO CONTINUE OR
MAINTAIN IN ANY MANNER THE FORECLOSURE PROCEEDINGS AGAINST APPELLANTS
WITHOUT THE CONSENT AFTER HEARING OF THE BANKRUPTCY COURT IN WHICH THE
FARMER'S PETITION WAS THEN PENDING.  FN12 

THE ACT EXPRESSLY PROVIDED: 

"(N)  THE FILING OF A PETITION  ...  SHALL IMMEDIATELY SUBJECT THE
FARMER AND ALL HIS PROPERTY, WHEREVER LOCATED,  ...  TO THE EXCLUSIVE
JURISDICTION OF THE COURT, INCLUDING  ...  THE RIGHT OR THE EQUITY OF
REDEMPTION WHERE THE PERIOD OF REDEMPTION HAS NOT OR HAD NOT EXPIRED,
...  OR WHERE THE SALE HAS NOT OR HAD NOT BEEN CONFIRMED," AND "IN ALL
CASES WHERE, AT THE TIME OF FILING THE PETITION, THE PERIOD OF
REDEMPTION HAS OR HAD NOT EXPIRED,  ...  OR WHERE THE SALE HAS NOT OR
HAD NOT BEEN CONFIRMED,  ...  THE PERIOD OF REDEMPTION SHALL BE
EXTENDED OR THE CONFIRMATION OF SALE WITHHELD FOR THE PERIOD NECESSARY
FOR THE PURPOSE OF CARRYING OUT THE PROVISIONS OF THIS SECTION"; AND 

"(O)  EXCEPT UPON PETITION MADE TO AND GRANTED BY THE JUDGE AFTER
HEARING AND REPORT BY THE CONCILIATION COMMISSIONER, THE FOLLOWING
PROCEEDINGS SHALL NOT BE INSTITUTED, OR IF INSTITUTED AT ANY TIME PRIOR
TO THE FILING OF A PETITION UNDER THIS SECTION, SHALL NOT BE
MAINTAINED, IN ANY COURT OR OTHERWISE, AGAINST THE FARMER OR HIS
PROPERTY, AT ANY TIME AFTER THE FILING OF THE PETITION UNDER THIS
COMPOSITION OR EXTENSION PROPOSAL BY THE COURT: 

     .  .         .         .         . 

"(2)  PROCEEDINGS FOR FORECLOSURE OF A MORTGAGE ON LAND, OR FOR
CANCELLATION, RESCISSION, OR SPECIFIC PERFORMANCE OF AN AGREEMENT FOR
SALE OF LAND OR FOR RECOVERY OF POSSESSION OF LAND; 

     .         .   .         .         . 

"(6)  SEIZURE, DISTRESS, SALE, OR OTHER PROCEEDINGS UNDER AN
EXECUTION OR UNDER ANY LEASE, LIEN, CHATTEL MORTGAGE, CONDITIONAL SALE
AGREEMENT, CROP PAYMENT AGREEMENT, OR MORTGAGE. 

"(P)  THE PROHIBITIONS  ...  SHALL APPLY TO ALL JUDICIAL OR OFFICIAL
PROCEEDINGS IN ANY COURT OR UNDER THE DIRECTION OF ANY OFFICIAL, AND
SHALL APPLY TO ALL CREDITORS, PUBLIC OR PRIVATE, AND TO ALL OF THE
DEBTOR'S PROPERTY, WHEREVER LOCATED.  ALL SUCH PROPERTY SHALL BE UNDER
THE SOLE JURISDICTION AND CONTROL OF THE COURT IN BANKRUPTCY, AND
SUBJECT TO THE PAYMENT OF THE DEBTOR FARMER'S CREDITORS, AS PROVIDED
FOR IN SECTION 75 OF THIS ACT." 

THUS CONGRESS REPEATEDLY STATED ITS UNEQUIVOCAL PURPOSE TO PROHIBIT -
IN THE ABSENCE OF CONSENT BY THE BANKRUPTCY COURT IN WHICH A DISTRESSED
FARMER HAS A PENDING PETITION - A MORTGAGEE OR ANY COURT FROM
INSTITUTING, OR MAINTAINING IF ALREADY INSTITUTED, ANY PROCEEDING
AGAINST THE FARMER TO SELL UNDER MORTGAGE FORECLOSURE, TO CONFIRM SUCH
A SALE, OR TO DISPOSSESS UNDER IT. 

THIS CONGRESSIONAL PURPOSE IS MORE APPARENT IN THE LIGHT OF THE
FRAZIER-LEMKE ACT'S LEGISLATIVE HISTORY.  CLARIFYING AND ALTERING THE
SWEEPING PROVISIONS FOR EXCLUSIVE FEDERAL JURISDICTION IN THE ORIGINAL
ACT,  FN13  CONGRESS MADE SEVERAL IMPORTANT CHANGES IN 1935.  FN14  IT
WAS THEN THAT SUBSECTION (P) WAS AMENDED SO THAT THE PROHIBITIONS IN
SUBSECTION (O) OF ANY STEPS AGAINST A FARMERDEBTOR OR HIS PROPERTY ONCE
HIS PETITION IS FILED WERE MADE SPECIFICALLY APPLICABLE "TO ALL
JUDICIAL OR OFFICIAL PROCEEDINGS IN ANY COURT OR UNDER THE DIRECTION OF
ANY OFFICIAL, AND  ...  TO ALL CREDITORS, PUBLIC OR PRIVATE, AND TO ALL
OF THE DEBTOR'S PROPERTY, WHEREVER LOCATED.  ALL SUCH PROPERTY SHALL BE
UNDER THE SOLE JURISDICTION AND CONTROL OF THE COURT IN BANKRUPTCY, AND
SUBJECT TO THE PAYMENT OF THE DEBTOR FARMER'S CREDITORS, AS PROVIDED
FOR IN SECTION 75  ...  " 

AS STATED BY THE SENATE JUDICIARY COMMITTEE IN REPORTING THESE
AMENDMENTS:  "  ...  SUBSECTION (N) BRINGS ALL OF THE BANKRUPT'S
PROPERTY, WHEREVER LOCATED, UNDER THE ABSOLUTE JURISDICTION OF THE
BANKRUPTCY COURT, WHERE IT OUGHT TO BE.  ANY FARMER WHO TAKES ADVANTAGE
OF THIS ACT OUGHT TO BE WILLING TO SURRENDER ALL HIS PROPERTY TO THE
JURISDICTION OF THE COURT, FOR THE PURPOSE OF PAYING HIS DEBTS, AND FOR
THE SAKE OF UNIFORMITY.  ...    "THE AMENDMENT TO SUBSECTION (P)
FURTHER CARRIES OUT THE AMENDMENT TO SUBSECTION (N), AND PLACES THE
SOLE JURISDICTION OF THE BANKRUPT'S ESTATE AND OF HIS OBLIGATIONS ALL
IN THE BANKRUPTCY COURT, WITHOUT EXCEPTION."  FN15 

THE CONGRESSIONAL PURPOSE IS SIMILARLY SET OUT IN THE HOUSE JUDICIARY
COMMITTEE'S REPORT:  "THE AMENDMENT TO SUBSECTION (N) IN FACT
CONSTRUES, INTERPRETS, AND CLARIFIES BOTH SUBSECTIONS (N) AND (O) OF
BILL, IT BECOMES CLEAR THAT IT WAS THE INTENTION OF CONGRESS, WHEN IT
PASSED SECTION 75, THAT THE FARMER-DEBTOR AND ALL OF HIS PROPERTY
SHOULD COME UNDER THE JURISDICTION OF THE COURT OF BANKRUPTCY, AND THAT
THE BENEFITS OF THE ACT SHOULD EXTEND TO THE FARMER, PRIOR TO
CONFIRMATION OF SALE, DURING THE PERIOD OF REDEMPTION, AND DURING A
MORATORIUM; AND THAT NO PROCEEDINGS AFTER THE FILING OF THE PETITION
SHOULD BE INSTITUTED, OR IF INSTITUTED PRIOR TO THE FILING OF THE
PETITION, SHOULD NOT BE MAINTAINED IN ANY COURT, OR OTHERWISE."  FN16 

CONGRESS SET UP IN THE ACT AN EXCLUSIVE AND EASILY ACCESSIBLE
STATUTORY MEANS FOR REHABILITATING DISTRESSED FARMERS WHO, AS VICTIMS
OF A GENERAL ECONOMIC DEPRESSION, WERE WITHOUT MEANS TO ENGAGE IN
FORMAL COURT LITIGATION.  TO THIS END, A REFEREE OR CONCILIATION
COMMISSIONER WAS PROVIDED FOR EVERY COUNTY IN WHICH FIFTEEN PROSPECTIVE
FARMER-DEBTORS REQUESTED AN APPOINTMENT; AND EXPRESS PROVISION WAS MADE
THAT THESE COMMISSIONERS SHOULD "UPON REQUEST ASSIST ANY FARMER IN
PREPARING AND FILING A PETITION UNDER THIS SECTION AND IN ALL MATTERS
SUBSEQUENT THERETO ARISING UNDER THIS SECTION AND FARMERS SHALL NOT BE
REQUIRED TO BE REPRESENTED BY AN ATTORNEY IN ANY PROCEEDING UNDER THIS
AN OPPORTUNITY FOR REHABILITATION, HE WAS RELIEVED - AFTER FILING A
PETITION FOR COMPOSITION AND EXTENSION - OF THE NECESSITY OF LITIGATION
ELSEWHERE AND ITS CONSEQUENT EXPENSE.  THIS WAS ACCOMPLISHED BY
GRANTING THE BANKRUPTCY COURT EXCLUSIVE JURISDICTION OF THE PETITIONING
FARMER AND ALL HIS PROPERTY WITH COMPLETE AND SELF-EXECUTING STATUTORY
EXCLUSION OF ALL OTHER COURTS. 

THE MORTGAGEES WHO SOUGHT TO ENFORCE THE MORTGAGE AFTER THE PETITION
WAS DULY FILED IN THE BANKRUPTCY COURT, THE WALWORTH COUNTY COURT THAT
ATTEMPTED TO GRANT THE MORTGAGEES RELIEF, AND THE SHERIFF WHO ENFORCED
THE COURT'S JUDGMENT, WERE ALL ACTING IN VIOLATION OF THE CONTROLLING
ACT OF CONGRESS.  BECAUSE THAT STATE COURT HAD BEEN DEPRIVED OF ALL
JURISDICTION OR POWER TO PROCEED WITH THE FORECLOSURE, THE CONFIRMATION
OF THE SALE, THE EXECUTION OF THE SHERIFF'S DEED, THE WRIT OF
ASSISTANCE, AND THE EJECTION OF APPELLANTS FROM THEIR PROPERTY - TO THE
EXTENT BASED UPON THE COURT'S ACTIONS - WERE ALL WITHOUT AUTHORITY OF
LAW.  INDIVIDUAL RESPONSIBILITY FOR SUCH UNLAWFUL ACTS MUST BE DECIDED
ACCORDING TO THE LAW OF THE STATE.  WE THEREFORE EXPRESS NO OPINION AS
TO OTHER CONTENTIONS BASED UPON STATE LAW AND RAISED BY APPELLEES IN
SUPPORT OF THE JUDGMENTS OF THE SUPREME COURT OF WISCONSIN. 

CONGRESS MANIFESTED ITS INTENTION THAT THE ISSUE OF JURISDICTION IN
THE FORECLOSING COURT NEED NOT BE CONTESTED OR EVEN RAISED BY THE
DISTRESSED FARMER-DEBTOR.  THE PROTECTION OF THE FARMERS WAS LEFT TO
THE FARMERS THEMSELVES OR TO THE COMMISSIONERS WHO MIGHT BE LAYMEN, AND
CONSIDERATIONS AS TO WHETHER THE ISSUE OF JURISDICTION WAS ACTUALLY
CONTESTED IN THE COUNTY COURT,  FN18  OR WHETHER IT COULD HAVE BEEN
CONTESTED,  FN19  ARE NOT APPLICABLE WHERE THE PLENARY POWER OF
CONGRESS OVER BANKRUPTCY HAS BEEN EXERCISED AS IN THIS ACT. 

THE JUDGMENTS IN BOTH CASES ARE REVERSED AND THE CAUSES ARE REMANDED
TO THE SUPREME COURT OF WISCONSIN FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  IN BOTH NO. 120 AND NO. 121, THE COMPLAINTS ALLEGED THAT
APPELLANT KALB AND HIS WIFE EXECUTED THE MORTGAGE.  IN NO. 120 BOTH
KALB AND HIS WIFE WERE ALLEGED TO BE OWNERS OF THE FARM; WHILE IN NO.
121, APPELLANT KALB WAS ALLEGED TO BE THE OWNER. 

FN2  OCTOBER 2, 1934, THE PETITION WAS FILED AND APPROVED.  JUNE 27,
1935, THE PETITION WAS DISMISSED, BUT SEPTEMBER 6, 1935, IT WAS
REINSTATED AND THE ORDER OF DISMISSAL WAS VACATED PURSUANT TO THE
SECOND FRAZIER-LEMKE ACT, 11 U.S.C. 203, SEC. 5. 

FN3  11 U.S.C. 203. 

FN4  231 WIS. 185; 285 N.W. 431. 

FN5  DEMURRER TO ONE COUNT AGAINST THE SHERIFF FOR ASSAULT AND
BATTERY WAS OVERRULED, BUT THE SUPREME COURT OF WISCONSIN REVERSED AS
TO THIS COUNT.  THE OPINION OF THE COURT UPHOLDING THE DEMURRER APPEARS
IN KALB V. LUCE, 228 WIS. 519; 279 N.W. 685; 280 N.W. 725.  APPEAL TO
THIS COURT WAS DISMISSED BECAUSE NO FINAL JUDGMENT HAD BEEN ENTERED. 
305 U.S. 566.  UPON REMAND THE STATE CIRCUIT COURT DISMISSED, THE
SUPREME COURT OF WISCONSIN AFFIRMED, "FOR THE REASONS  ...  STATED" IN
ITS OPINION IN KALB V. LUCE, SUPRA, 231 WIS. 186; 285 N.W. 431, AND THE
APPEALS HERE ARE FROM THE JUDGMENTS OF DISMISSAL. 

FN6  HONEYMAN V. HANAN, 300 U.S. 14, 18; LYNCH V. NEW YORK EX REL.
PIERSON, 293 U.S. 52, 54; ENTERPRISE IRRIGATION DISTRICT V. FARMERS
MUTUAL CANAL CO., 243 U.S. 157, 164; HAMMOND V. JOHNSTON, 142 U.S. 73. 

FN7  CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER STATE BANK, ANTE, P.
371; STOLL V. GOTTLIEB, 305 U.S. 165, 171, 172; DOWELL V. APPLEGATE,
152 U.S. 327, 340. 

FN8  VALLELY V. NORTHERN FIRE INS. CO., 254 U.S. 348, 353-4; AND
COMPARE ELLIOTT V. LESSEE OF PIERSOL, 1 PET. 328, 340; WILLIAMSON V.
BERRY, 8 HOW.  495, 540, 541, 542. 

FN9  LAWS OF WISCONSIN, 1907, CHAP. 234. 

FN10  VALLELY V. NORTHERN FIRE INS. CO., SUPRA, 355; CF. TAYLOR V.
STERNBERG, 293 U.S. 470, 473. 

FN11  HINES V. LOWREY, 305 U.S. 85, 90, 91; DAVIS V. WECHSLER, 263
U.S. 22, 24. 

FN12  THAT A STATE COURT BEFORE WHICH A PROCEEDING IS COMPETENTLY
INITIATED MAY - BY OPERATION OF SUPREME FEDERAL LAW - LOSE JURISDICTION
TO PROCEED TO A JUDGMENT UNASSAILABLE ON COLLATERAL ATTACK IS NOT A
CONCEPT UNKNOWN TO OUR FEDERAL SYSTEM.  SEE MOORE V. DEMPSEY, 261 U.S.
86.  CF. JOHNSON V. ZERBST, 304 U.S. 458. 

FN13  47 STAT. 1470, SEC. 75. 

FN14  49 STAT. 942, 943. 

FN15  SENATE REPORT NO. 985, 74TH CONG., 1ST SESS. 

FN16  HOUSE REPORT NO. 1808, 74TH CONG., 1ST SESS. 

FN17  47 STAT. 1473(Q). 

FN18  STOLL V. GOTTLIEB, SUPRA. 

FN19  CHICOT COUNTY DRAINAGE DISTRICT V. BAXTER STATE BANK, SUPRA.
..END :








AVERY V. ALABAMA, 308 U.S. 444 


NO. 124.  ARGUED DECEMBER 7, 1939.  - DECIDED JANUARY 2, 1940.  - 237
ALA. 616 - 188 SO. 391, AFFIRMED. 


1.  THE GUARANTEE BY THE FOURTEENTH AMENDMENT OF ASSISTANCE OF COUNSEL
IN A CRIMINAL CASE, IS NOT SATISFIED BY A FORMAL APPOINTMENT OF COUNSEL
TO DEFEND THE ACCUSED BUT INCLUDES AN OPPORTUNITY FOR CONSULTATION
BETWEEN THEM AND FOR PREPARATION OF THE DEFENSE.  P. 446. 

2.  UPON REVIEW OF A DECISION OF A STATE COURT, THE QUESTION WHETHER
AN ACCUSED HAS BEEN DENIED THE FEDERAL CONSTITUTIONAL RIGHT TO THE
ASSISTANCE OF COUNSEL, IS TO BE DETERMINED BY THIS COURT UPON AN
INDEPENDENT EXAMINATION OF THE RECORD.  P. 447. 

3.  UPON THE RECORD IN THIS CASE, HELD THAT DENIAL BY THE TRIAL COURT
OF A MOTION FOR A CONTINUANCE, MADE BY APPOINTED COUNSEL TO OBTAIN MORE
TIME TO PREPARE THE DEFENSE, DID NOT, UNDER THE CIRCUMSTANCES
DISCLOSED, DEPRIVE THE ACCUSED OF HIS CONSTITUTIONAL RIGHT TO THE
ASSISTANCE OF COUNSEL.  P. 450. 

AVERY V. ALABAMA. 

CERTIORARI TO THE SUPREME COURT OF ALABAMA. 

CERTIORARI, POST, P. 540, TO REVIEW THE AFFIRMANCE OF A CONVICTION OF
MURDER. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF MURDER IN THE CIRCUIT COURT OF BIBB
COUNTY, ALABAMA; HE WAS SENTENCED TO DEATH AND THE STATE SUPREME COURT
AFFIRMED.  FN1  THE SOLE QUESTION PRESENTED IS WHETHER IN VIOLATION OF
THE FOURTEENTH AMENDMENT "PETITIONER WAS DENIED THE RIGHT OF COUNSEL,
WITH THE ACCUSTOMED INCIDENTS OF CONSULTATION AND OPPORTUNITY OF
PREPARATION FOR TRIAL," BECAUSE AFTER COMPETENT COUNSEL WERE DULY
APPOINTED THEIR MOTION FOR CONTINUANCE WAS DENIED.  VIGILANT CONCERN
FOR THE MAINTENANCE OF THE CONSTITUTIONAL RIGHT OF AN ACCUSED TO
ASSISTANCE OF COUNSEL LED US TO GRANT CERTIORARI.  FN2 

HAD PETITIONER BEEN DENIED ANY REPRESENTATION OF COUNSEL AT ALL, SUCH
A CLEAR VIOLATION OF THE FOURTEENTH AMENDMENT'S GUARANTEE OF ASSISTANCE
OF COUNSEL WOULD HAVE REQUIRED REVERSAL OF HIS CONVICTION.  FN3  BUT
COUNSEL WERE DULY APPOINTED FOR PETITIONER BY THE TRIAL COURT AS
REQUIRED BOTH BY ALABAMA LAW  FN4  AND THE FOURTEENTH AMENDMENT. 

SINCE THE CONSTITUTION NOWHERE SPECIFIES ANY PERIOD WHICH MUST
INTERVENE BETWEEN THE REQUIRED APPOINTMENT OF COUNSEL AND TRIAL, THE
FACT, STANDING ALONE, THAT A CONTINUANCE HAS BEEN DENIED, DOES NOT
CONSTITUTE A DENIAL OF THE CONSTITUTIONAL RIGHT TO ASSISTANCE OF
COUNSEL.  IN THE COURSE OF TRIAL, AFTER DUE APPOINTMENT OF COMPETENT
COUNSEL, MANY PROCEDURAL QUESTIONS NECESSARILY ARISE WHICH MUST BE
DECIDED BY THE TRIAL JUDGE IN THE LIGHT OF FACTS THEN PRESENTED AND
CONDITIONS THEN EXISTING.  DISPOSITION OF A REQUEST FOR CONTINUANCE IS
OF THIS NATURE AND IS MADE IN THE DISCRETION OF THE TRIAL JUDGE, THE
EXERCISE OF WHICH WILL ORDINARILY NOT BE REVIEWED.  FN5 

BUT THE DENIAL OF OPPORTUNITY FOR APPOINTED COUNSEL TO CONFER, TO
CONSULT WITH THE ACCUSED AND TO PREPARE HIS DEFENSE, COULD CONVERT THE
APPOINTMENT OF COUNSEL INTO A SHAM AND NOTHING MORE THAN A FORMAL
COMPLIANCE WITH THE CONSTITUTION'S REQUIREMENT THAT AN ACCUSED BE GIVEN
THE ASSISTANCE OF COUNSEL.  FN6  THE CONSTITUTION'S GUARANTEE OF
ASSISTANCE OF COUNSEL CANNOT BE SATISFIED BY MERE FORMAL APPOINTMENT. 

IN DETERMINING WHETHER PETITIONER HAS BEEN DENIED HIS CONSTITUTIONAL
RIGHT TO ASSISTANCE OF COUNSEL, WE MUST REMEMBER THAT THE FOURTEENTH
AMENDMENT DOES NOT LIMIT THE POWER OF THE STATES TO TRY AND DEAL WITH
CRIMES COMMITTED WITHIN THEIR BORDERS,  FN7  AND WAS NOT INTENDED TO
BRING TO THE TEST OF A DECISION OF THIS COURT EVERY RULING MADE IN THE
COURSE OF A STATE TRIAL.  FN8 CONSISTENTLY WITH THE PRESERVATION OF
CONSTITUTIONAL BALANCE BETWEEN STATE AND FEDERAL SOVEREIGNTY, THIS
COURT MUST RESPECT AND IS RELUCTANT TO INTERFERE WITH THE STATES'
DETERMINATION OF LOCAL SOCIAL POLICY.  FN9  BUT WHERE DENIAL OF THE
CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL IS ASSERTED, ITS PECULIAR
SACREDNESS  FN10  DEMANDS THAT WE SCRUPULOUSLY REVIEW THE RECORD. 
FN11 

THE RECORD SHOWS - 

PETITIONER WAS CONVICTED ON AN INDICTMENT FILED IN THE BIBB COUNTY
CIRCUIT COURT FOR MURDER ALLEGED TO HAVE OCCURRED IN 1932.  HE WAS
FOUND AND ARRESTED IN PITTSBURGH, PENNSYLVANIA, SHORTLY BEFORE MARCH
21, 1938.  ON THAT DATE, MONDAY, HE WAS ARRAIGNED AT A REGULAR TERM OF
THE COURT; TWO PRACTICING ATTORNEYS OF THE LOCAL BAR WERE APPOINTED TO
DEFEND HIM; PLEAS OF NOT GUILTY AND NOT GUILTY BY REASON OF INSANITY
WERE ENTERED AND THE PRESIDING JUDGE SET HIS TRIAL FOR WEDNESDAY, MARCH
23.  THE CASE WAS NOT REACHED WEDNESDAY, BUT WAS CALLED THURSDAY, THE
24TH, AT WHICH TIME HIS ATTORNEYS FILED A MOTION FOR CONTINUANCE, ON
THE GROUND THAT THEY HAD NOT HAD SUFFICIENT TIME AND OPPORTUNITY SINCE
THEIR APPOINTMENT TO INVESTIGATE AND PREPARE HIS DEFENSE.  AFFIDAVITS
OF BOTH ATTORNEYS ACCOMPANIED THE MOTION. 

ONE ATTORNEY'S AFFIDAVIT ALLEGED THAT HE HAD NOT HAD TIME TO
INVESTIGATE AND PREPARE THE DEFENSE BECAUSE HE HAD BEEN ACTUALLY
ENGAGED IN ANOTHER TRIAL FROM THE TIME OF HIS APPOINTMENT AT 2 P.M.,
MONDAY, UNTIL 9 P.M. THAT EVENING; HIS PRESENCE HAD BEEN REQUIRED IN
THE COURT ROOM ON TUESDAY, MARCH 22, DUE TO EMPLOYMENT IN OTHER CASES
SET, BUT NOT ACTUALLY TRIED; HE HAD BEEN DETAINED IN COURT WEDNESDAY,
MARCH 23, WAITING FOR PETITIONER'S CASE TO BE CALLED; BUT AFTER HIS
APPOINTMENT HE HAD TALKED WITH PETITIONER AND "HAD SERIOUS DOUBTS AS TO
HIS SANITY." 

THE AFFIDAVIT BY THE OTHER ATTORNEY STATED THAT HE TOO HAD NOT HAD
PROPER TIME AND OPPORTUNITY TO INVESTIGATE PETITIONER'S CASE BECAUSE OF
HIS EMPLOYMENT IN OTHER PENDING CASES, SOME OF WHICH WERE NOT DISPOSED
OF UNTIL TUESDAY AT 4:30 P.M. 

NO RULING ON THE MOTION FOR CONTINUANCE APPEARS IN THE RECORD, BUT ON
THURSDAY, THE 24TH, THE TRIAL PROCEEDED BEFORE A JURY. 

THE FOSTER PARENTS OF THE PERSON WHOSE MURDER WAS CHARGED AND ANOTHER
WITNESS TESTIFIED THAT ON THE DAY OF THE KILLING, DECEASED,
PETITIONER'S WIFE FROM WHOM HE WAS THEN SEPARATED, HAD STARTED TO A
NEARBY NEIGHBOR'S HOUSE TO GET A WASHTUB WHEN PETITIONER APPROACHED HER
WITH A PISTOL IN HIS RIGHT HAND; WORDS ENSUED; SHE TURNED AND RAN AND
HE SHOT HER TWICE IN THE BACK; SHE FELL AND HE SHOT HER THREE MORE
TIMES.  PETITIONER DENIED THAT THESE WITNESSES WERE AT THE TIME IN A
POSITION TO SEE WHAT OCCURRED.  ADMITTING HE HAD COME SOME THREE MILES
FROM HIS HOME TO SEE HIS WIFE, HE INSISTED THAT HE HAD NO PISTOL BUT
THAT WHEN HE SPOKE TO HER SHE HAD A BUCKET OF WATER AND SOMETHING ELSE;
THEY QUARRELLED; SHE THEN DREW A PISTOL FROM UNDER HER SWEATER AND HE
"GOT TO TUSSLING WITH HER OVER THE PISTOL, TRYING TO TAKE IT AWAY FROM
HER"; "SHOT HER, BEHIND THE SHOULDER, AND THROUGH THE BACK, TUSSLING
WITH HER," AND THEN RAN AWAY.  THERE IS NO SUGGESTION IN THE RECORD
THAT THERE WERE ANY WITNESSES TO THE KILLING OTHER THAN THOSE WHO
TESTIFIED.  THE PLEA OF INSANITY APPARENTLY WAS WITHDRAWN.  FN12 

THE JURY RETURNED A VERDICT OF GUILTY WITH THE DEATH PENALTY.  ON THE
SAME DAY, THE 24TH, PETITIONER'S COUNSEL MOVED FOR A NEW TRIAL, SETTING
UP ERROR IN THE FAILURE TO GRANT THE REQUESTED CONTINUANCE.  THIS
MOTION FOR NEW TRIAL WAS CONTINUED FROM TIME TO TIME UNTIL JUNE 30.  IN
THE INTERIM, A THIRD ATTORNEY HAD BEEN EMPLOYED BY PETITIONER'S SISTER,
AND ON JUNE 30, PETITIONER'S THREE LAWYERS FILED AN AMENDMENT TO THE
MOTION FOR NEW TRIAL, SPECIFICALLY SETTING OUT THAT THE DENIAL OF A
CONTINUANCE HAD DEPRIVED PETITIONER OF THE EQUAL PROTECTION OF THE LAWS
AND DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT, BY
DENYING HIM "THE RIGHT OF COUNSEL, WITH THE ACCUSTOMED INCIDENTS OF
CONSULTATION AND OPPORTUNITY OF PREPARATION FOR TRIAL." 

WHEN THE MOTION FOR NEW TRIAL WAS HEARD THE ONLY WITNESSES WERE
PETITIONER'S THREE ATTORNEYS.  THE THIRD ATTORNEY, EMPLOYED BY
PETITIONER'S SISTER, TESTIFIED ONLY THAT HE HAD BEEN EMPLOYED AFTER THE
TRIAL AND VERDICT.  THE TWO ATTORNEYS WHO HAD REPRESENTED PETITIONER AT
THE TRIAL SUBSTANTIALLY REPEATED WHAT THEY HAD SET OUT IN THEIR
ORIGINAL AFFIDAVITS.  IN SOME DETAIL THEY TESTIFIED THAT:  THEY HAD
CONFERRED WITH PETITIONER AFTER THEIR APPOINTMENT ON MONDAY, MARCH 21,
BUT HE GAVE THEM NO HELPFUL INFORMATION AVAILABLE AS A DEFENSE OR NAMES
OF ANY WITNESSES; BETWEEN THEIR APPOINTMENT AND THE TRIAL THEY MADE
INQUIRIES OF PEOPLE WHO LIVED IN THE COMMUNITY IN WHICH THE PETITIONER
HAD LIVED PRIOR TO THE CRIME WITH WHICH HE WAS CHARGED AND IN WHICH THE
KILLING OCCURRED AND NONE OF THOSE QUESTIONED, INCLUDING A BROTHER OF
PETITIONER, COULD OFFER INFORMATION OR ASSISTANCE HELPFUL TO THE
DEFENSE; THEY (THE ATTORNEYS) HAD NOT PRIOR TO THE TRIAL CONFERRED WITH
LOCAL DOCTORS, OF WHOM THERE WERE FOUR, AS TO PETITIONER'S MENTAL
CONDITION, HAD NEITHER SUMMONED ANY MEDICAL EXPERTS OR OTHER WITNESSES
NOR ASKED FOR COMPULSORY PROCESS GUARANTEED AN ACCUSED BY THE ALABAMA
CONSTITUTION, ART. 1, SEC. 6.  AND IN RESPONSE TO INQUIRIES MADE BY THE
TRIAL JUDGE THEY STATED THAT THEY HAD NOT MADE ANY REQUEST FOR LEAVE OF
ABSENCE FROM THE COURT TO MAKE FURTHER INQUIRY OR INVESTIGATION. 

THE MOTION FOR NEW TRIAL WAS OVERRULED. 

UPON APPEAL, THE ALABAMA SUPREME COURT GAVE FULL CONSIDERATION TO THE
MOTION FOR CONTINUANCE ALTHOUGH NO RULING UPON IT WAS CONTAINED IN THE
RECORD AND CONCLUDED THAT THE TRIAL COURT HAD NOT ABUSED ITS DISCRETION
IN FAILING TO CONTINUE THE CASE.  FN13 

UNDER THE PARTICULAR CIRCUMSTANCES APPEARING IN THIS RECORD, WE DO
NOT THINK PETITIONER HAS BEEN DENIED THE BENEFIT OF ASSISTANCE OF
COUNSEL GUARANTEED TO HIM BY THE FOURTEENTH AMENDMENT.  HIS APPOINTED
COUNSEL, AS THE SUPREME COURT OF ALABAMA RECOGNIZED, HAVE PERFORMED
THEIR "FULL DUTY INTELLIGENTLY AND WELL."  NOT ONLY DID THEY PRESENT
PETITIONER'S DEFENSE IN THE TRIAL COURT, BUT IN CONJUNCTION WITH
COUNSEL LATER EMPLOYED, THEY CARRIED AN APPEAL TO THE STATE SUPREME
COURT, AND THEN BROUGHT THE MATTER HERE FOR OUR REVIEW.  THEIR
APPOINTMENT AND THE REPRESENTATION RENDERED UNDER IT WERE NOT MERE
FORMALITIES, BUT PETITIONER'S COUNSEL HAVE - AS WAS THEIR SOLEMN DUTY -
CONTESTED EVERY STEP OF THE WAY LEADING TO FINAL DISPOSITION OF THE
CASE.  PETITIONER HAS THUS BEEN AFFORDED THE ASSISTANCE OF ZEALOUS AND
EARNEST COUNSEL FROM ARRAIGNMENT TO FINAL ARGUMENT IN THIS COURT. 

THE OFFENSE FOR WHICH PETITIONER WAS CONVICTED OCCURRED IN A COUNTY
LARGELY RURAL.  THE COUNTY SEAT, WHERE COURT WAS HELD, HAS A POPULATION
OF LESS THAN A THOUSAND.  FN14  INDICTMENTS IN THE BIBB COUNTY CIRCUIT
COURT, AS IN MOST RURAL COUNTIES THROUGHOUT THE NATION, ARE MOST
FREQUENTLY RETURNED AND TRIALS HAD DURING FIXED TERMS OR SESSIONS OF
COURT.  FN15  AND THESE RURAL "COURT WEEKS" TRADITIONALLY BRING GRAND
AND PETIT JURORS, WITNESSES, INTERESTED PERSONS AND SPECTATORS FROM
EVERY PART OF THE COUNTY INTO THE COUNTY SEAT FOR COURT.  FN16  UNLIKE
METROPOLITAN CENTERS, PEOPLE IN THESE RURAL COUNTIES KNOW EACH OTHER,
AND INFORMATION CONCERNING WITNESSES AND EVENTS IS MORE WIDESPREAD AND
MORE GENERALLY KNOWN THAN IN LARGE CITIES.  BECAUSE THIS WAS SO,
PETITIONER'S ATTORNEYS WERE ABLE TO MAKE THE INQUIRIES DURING COURT
WEEK AT THE COUNTY SEAT, TO WHICH THEY TESTIFIED, AND THAT THEY
APPARENTLY WITHDREW THE PLEA OF INSANITY AFTER THIS INQUIRY IS
SIGNIFICANT.  THAT THE EXAMINATION AND PREPARATION OF THE CASE, IN THE
TIME PERMITTED BY THE TRIAL JUDGE, HAD BEEN ADEQUATE FOR COUNSEL TO
EXHAUST ITS EVERY ANGLE IS ILLUMINATED BY THE ABSENCE OF ANY
INDICATION, ON THE MOTION AND HEARING FOR NEW TRIAL, THAT THEY COULD
HAVE DONE MORE HAD ADDITIONAL TIME BEEN GRANTED. 

UNDER THE CIRCUMSTANCES OF THIS CASE WE CANNOT SAY THAT THE TRIAL
JUDGE, WHO CONCLUDED A FAIRLY CONDUCTED TRIAL BY CAREFULLY SAFEGUARDING
PETITIONER'S RIGHTS IN A CLEAR AND FAIR CHARGE, DEPRIVED PETITIONER OF
HIS CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL.  THE SUPREME COURT
OF ALABAMA HAVING FOUND THAT PETITIONER WAS AFFORDED THAT RIGHT, ITS
JUDGMENT IS AFFIRMED. 

FN1  237 ALA. 616; 188 SO. 391. 

FN2  POST, P. 540. 

FN3  POWELL V. ALABAMA, 287 U.S. 45; SEE BROWN V. MISSISSIPPI, 297
U.S. 278, 286. 

FN4  CODE OF ALA., 1923, SEC. 5567. 

FN5  FRANKLIN V. SOUTH CAROLINA, 218 U.S. 161, 168; ISAACS V. UNITED
STATES, 159 U.S. 487, 489; SEE MINDER V. GEORGIA, 183 U.S. 559, 561. 

FN6  CF. POWELL V. ALABAMA, SUPRA; MOORE V. DEMPSEY, 261 U.S. 86,
91. 

FN7  LEEPER V. TEXAS, 139 U.S. 462, 467-8; UGHBANKS V. ARMSTRONG, 208
U.S. 481, 487; MINDER V. GEORGIA, SUPRA, 562. 

FN8  CF. DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 104; WALKER V.
SAUVINET, 92 U.S. 90, 92. 

FN9  GREEN V. FRAZIER, 253 U.S. 233, 239, 240, 242; NEBBIA V. NEW
YORK, 291 U.S. 502, 537-8. 

FN10  CF. LEWIS V. UNITED STATES, 146 U.S. 370, 374, 375. 

FN11  NORRIS V. ALABAMA, 294 U.S. 587, 590; PIERRE V. LOUISIANA, 306
U.S. 354, 358. 

FN12  THE OPINION OF THE SUPREME COURT OF ALABAMA NOTES:  "COUNSEL
FIRST INTERPOSED A PLEA OF NOT GUILTY, AND ANOTHER OF NOT GUILTY BY
REASON OF INSANITY.  BUT UPON THE TRIAL WITHDREW THE LATTER PLEA." 

FN13  AVERY V. ALABAMA, SUPRA. 

FN14  VOL. I, FIFTEENTH CENSUS OF THE UNITED STATES, 1930. 

FN15  THE FIRST CONSTITUTION OF ALABAMA (1819), ART. V, SEC. 7,
PROVIDED FOR THE HOLDING OF A CIRCUIT COURT AT LEAST TWICE A YEAR IN
EACH COUNTY, AND THIS PROVISION CONTINUES IN THE PRESENT CONSTITUTION,
CONST. OF ALA. (1901) ART. VI, SEC. 144.  WHILE IN RECOGNITION OF
MODERN SOCIAL NEEDS (SEE POUND, CRIMINAL JUSTICE IN AMERICA, 1930, PP.
152, 88, 150, 163, 164, 178, 183, 189, 190) CIRCUIT COURTS NOW, BY
STATUTE, ENTERTAIN CAUSES AT SUBSTANTIALLY ALL TIMES (CODE, 1923, SEC.
6667) THE HOLDING OF FORMAL COURT AT SPECIFIC TERMS OR SESSIONS IS
EMPHASIZED IN THE REQUIREMENT THAT EACH CAUSE BE CALLED AT LEAST TWICE
A YEAR AND AS OFTEN AS IS NECESSARY TO SECURE PROMPT TRIALS.  (ID.,
SEC. 6668).  CF. ALA. CIV. CODE, 1907, C. 62, ART. I, SEC. 3234,
SPECIFICALLY PROVIDING FOR HOLDING OF CIRCUIT COURT IN BIBB COUNTY ON
THE FIRST MONDAY BEFORE THE LAST MONDAY IN FEBRUARY AND AUGUST OF EACH
YEAR.  IN GENERAL, THE PRACTICE IN ALABAMA ACCORDS WITH THAT IN ALL
SEC. 5656, ET SEQ., FIXING SPECIFIC TERMS OF DISTRICT COURTS, AND SEC.
5734-5766, FIXING SPECIFIC DATES OF COUNTY COURT TERMS; IDAHO CODE ANN.
(1932) 1-706, ET SEQ., REQUIRING AT LEAST TWO TERMS EACH YEAR FOR THE
DISTRICT COURT IN EACH COUNTY, TO BE FIXED BY COURT ORDER; BURNS
INDIANA STAT. ANN. (1933) 4-332, ET SEQ., FIXING SPECIFIC TERMS OF
CIRCUIT COURTS, 4-407 ET SEQ., AND 4-607, FIXING SPECIFIC TERMS OF
SUPERIOR COURTS; REV. STAT. OF MAINE (1930), C. 91, SEC. 21, P. 1264,
FIXING SPECIFIC TRIAL TERMS FOR SUPERIOR COURTS; MICH. STAT. ANN.
(CALLAGHAN, 1938) SEC. 27.546, ET SEQ., PROVIDING FOR AT LEAST FOUR
TERMS OF CIRCUIT COURT IN EACH COUNTY ORGANIZED FOR JUDICIAL PURPOSES,
AT FIXED TIMES SUBJECT TO CHANGE BY COURT ORDER (SEC. 27.547); CAHILL'S
CONSOL.  LAWS OF NEW YORK (1930), C. 31, SEC. 84, PROVIDING THAT
SPECIAL AND TRIAL TERMS OF SUPREME COURT BE DESIGNATED BY THE APPELLATE
DIVISION (SEE ALSO SEC. 150) AND REQUIRING THAT AT LEAST ONE SPECIAL
TERM AND TWO TRIAL TERMS MUST BE HELD IN EACH COUNTY ANNUALLY, SEC.
148; REV. STAT. OF UTAH (1933), 20-3-6, 20-3-9, REQUIRING AT LEAST
THREE TERMS DURING EACH YEAR FOR THE DISTRICT COURT AT EACH COUNTY
SEAT, AT TIMES TO BE FIXED BY THE RESPECTIVE DISTRICT JUDGES; PUBLIC
LAWS OF VERMONT (1933), SEC. 1374, P. 296, FIXING STATED TERMS FOR
HOLDING COUNTY COURTS.  IN PENNSYLVANIA, COURTS OF QUARTER SESSIONS,
"OF OYER AND TERMINER AND JAIL DELIVERY SHALL BE HOLDEN FOUR TIMES,
ANNUALLY, IN EVERY COUNTY."  17 PURDON'S PENN.  STAT., SECS. 331, 351,
371. 

FN16  THE SYSTEM OF CIRCUIT COURT TERMS CONTINUES TODAY
CHARACTERISTICS TRACEABLE TO THE ORIGINAL ENGLISH ASSIZES.  WHILE
FINANCIAL AND ADMINISTRATIVE MATTERS HAVE BEEN DROPPED FROM THE
BUSINESS HISTORICALLY COMMITTED TO JUSTICES ON EYRE AND LATER TO JUDGES
OF ASSIZE FROM THE TIME OF HENRY II, OUR RURAL COUNTY CIRCUIT COURTS
STILL BEAR THE EARMARKS OF A "GENERAL REVIEW OF THE WHOLE
ADMINISTRATION OF THE COUNTRY."  I STEPHEN'S, "HIS.  OF THE CRI.  LAW
OF ENG." (LONDON), PP. 101, 106, 111.  SEE, II ENC.  OF SOC. SCI., 283,
284, IV, 522.  AND THE PRACTICE OF PROMPTLY TRYING AT ANY TERM ALL THE
THEN ACCUSED FINDS ITS HISTORICAL ROOTS IN THE COMMISSIONS OF GAOL
DELIVERY OYER AND TERMINER OF JUDGES ON CIRCUIT OR "ASSIZE."  I
STEPHEN, SUPRA, P. 105, ET SEQ.  THESE JUDGES WERE EMPOWERED "TO TRY
EVERY PRISONER IN THE GAOL, COMMITTED FOR ANY OFFENSE WHATSOEVER." 
THEY PROCEEDED UPON PRIOR INDICTMENTS "AS WELL AS UPON INDICTMENTS
TAKEN BEFORE THEMSELVES."  STUBB'S "CROWN CIRCUIT" (DUBLIN), 2, 5, 7,
9, 10.  "AND THEREFORE IT HATH NEVER BEEN A QUESTION, BUT THAT THE
JUSTICES OF GAOL-DELIVERY MAY TAKE AN INDICTMENT, TRY, AND GIVE
JUDGMENT THE SAME DAY."  2 HALE'S "PLEAS OF THE CROWN" (1ST AMER. 
ED.), 33.  THE SHERIFF WAS COMMANDED TO SEE THAT THE PRISONERS
"TOGETHER WITH THEIR ATTACHMENTS, INDICTMENTI, AND ALL OTHER MUNIMENTS
ANY WAYS CONCERNING THOSE PRISONERS  ...  (BE PRESENT AND THAT) ALL
THEY, WHO WILL PROSECUTE AGAINST THOSE PRISONERS, BE THEN AND THERE TO
PROSECUTE AGAINST THEM, AS SHALL BE JUST."  STUBBS, SUPRA, 4, 5.  SEE 1
HOLDSWORTH'S "HISTORY OF ENGLISH LAW" (1927), PP. 49-51, 264 ET SEQ.
..END :







LABOR BOARD V. FALK CORP., 308 U.S. 453 


NO. 460.  ARGUED DECEMBER 8, 11, 1939.  - DECIDED JANUARY 2, 1940.  -
106 F.2D 454, REVERSED. 


IN CONSOLIDATED PROCEEDINGS AGAINST AN EMPLOYER UNDER THE NATIONAL
LABOR RELATIONS ACT, THE BOARD, UNDER SEC. 10(C), ORDERED THE EMPLOYER
TO CEASE AND DESIST FROM INTERFERENCE WITH AND DOMINATION OF A LABOR
UNION OF ITS EMPLOYEES, TO COMPLETELY DISESTABLISH SUCH UNION, AND TO
POST NOTICES OF COMPLIANCE WITH THE BOARD'S ORDER; AND, UNDER SEC.
9(C), DIRECTED AN ELECTION OF A REPRESENTATIVE FOR COLLECTIVE
BARGAINING ON A BALLOT CONTAINING THE NAMES OF TWO COMPETING UNIONS BUT
OMITTING THE COMPANY UNION.  THE CIRCUIT COURT OF APPEALS GRANTED
ENFORCEMENT, PROVIDING THAT THE EMPLOYEES SHOULD BE FREE AT ANY
ELECTION TO CHOOSE THE COMPANY UNION TO REPRESENT THEM, AND THAT THE
EMPLOYER BE PERMITTED TO ADD TO THE POSTED NOTICES THE QUALIFICATION
THAT THE COMPANY UNION WOULD BE DISESTABLISHED AND UNRECOGNIZED UNTIL
AND UNLESS IT SHOULD BE CHOSEN BY THE EMPLOYEES TO REPRESENT THEM. 
HELD: 

1.  THE CIRCUIT COURT OF APPEALS WAS WITHOUT POWER THUS TO MODIFY,
AND WAS WITHOUT JURISDICTION UNDER SEC. 9(D) TO REVIEW, THE BOARD'S
DIRECTION OF AN ELECTION.  PP. 458-459. 

2.  THE BOARD'S ORDER THAT THE COMPANY UNION BE COMPLETELY
DISESTABLISHED AND BARRED FROM CONSIDERATION AS AN EMPLOYEE
REPRESENTATIVE WAS SUPPORTED BY THE EVIDENCE AND FINDINGS, AND WAS NOT
INCONSISTENT WITH SEC. 7 OF THE ACT, WHICH GUARANTEES THE RIGHT OF
EMPLOYEES TO CHOOSE THEIR OWN REPRESENTATIVE.  P. 461. 

3.  MODIFICATION OF THE BOARD'S ORDER BY OMITTING THE REQUIREMENT
THAT THE NOTICES TO BE POSTED IN THE PLANT CONTAIN A STATEMENT THAT THE
COMPANY WOULD "CEASE AND DESIST" FROM ITS UNLAWFUL ACTIVITIES; AND BY
INCLUSION IN SUCH NOTICE OF ASSURANCES TO THE EMPLOYEES THAT THE
COMPANY UNION WAS ELIGIBLE FOR SELECTION AS THEIR BARGAINING
REPRESENTATIVE - WAS ERROR.  P. 462. 

4.  THE ORDER OF THE BOARD SHOULD BE ENFORCED WITHOUT MODIFICATION. 
P. 463. 

NATIONAL LABOR RELATIONS BOARD V. FALK CORPORATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 544, TO REVIEW A DECREE MODIFYING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD, 6 N.L.R.B. 654, AND GRANTING
ENFORCEMENT OF THE ORDER AS MODIFIED.  SEE ALSO, 102 F.2D 383. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

UPON CHARGES FILED BY THE AMALGAMATED ASSOCIATION OF IRON, STEEL, AND
TIN WORKERS OF NORTH AMERICA, LODGE NO. 1528, THE LABOR BOARD FOUND
THAT RESPONDENT, AN EMPLOYER CONCEDED TO BE ENGAGED IN INTERSTATE
COMMERCE, HAD, IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT,
INTERFERED WITH ITS EMPLOYEES' FREE RIGHT TO SELF ORGANIZATION AND HAD
FOSTERED AND DOMINATED A COMPANY UNION CALLED THE INDEPENDENT UNION. 
FN1  RESPONDENT WAS ORDERED TO CEASE AND DESIST FROM SUCH INTERFERENCE
AND DOMINATION; TO DISESTABLISH THE COMPANY UNION COMPLETELY, AND TO
POST NOTICES IN ITS PLANT OF COMPLIANCE WITH THE BOARD'S ORDER.  AT THE
SAME TIME AND IN A PROCEEDING CONSOLIDATED  FN2  WITH THE DETERMINATION
OF THE ALLEGED UNFAIR LABOR PRACTICES, THE BOARD, ALSO UPON PETITION OF
AMALGAMATED, DIRECTED AN ELECTION OF A REPRESENTATIVE FOR COLLECTIVE
BARGAINING ON A BALLOT TO CONTAIN THE AMALGAMATED AND THE OPERATING
ENGINEERS - A PARTICIPANT IN THE CONSOLIDATED HEARING - BUT NOT THE
INDEPENDENT. 

ON PETITION BY THE BOARD FOR ENFORCEMENT OF ITS ORDER, THE COURT OF
APPEALS CONCLUDED  FN3  THAT "THE ORDER OF THE BOARD IS VALID AND  ...
ITS PETITION FOR ENFORCEMENT  ...  IS  ...  GRANTED."  BUT, OF ITS OWN
VOLITION, THE COURT PROVIDED IN ITS FINAL ORDER "THAT THE  ...
EMPLOYEES SHALL REMAIN FREE TO CHOOSE AT THE COMING ELECTION, OR ANY
FUTURE ELECTION HELD OR CONDUCTED PURSUANT TO THE PROVISIONS OF THE
...  ACT, THE INDEPENDENT UNION TO REPRESENT THEM IN LABOR RELATION
DEALINGS WITH RESPONDENT"; AND THAT RESPONDENT BE PERMITTED TO ADD TO
THE NOTICES IN ITS PLANT THE QUALIFICATION THAT THE INDEPENDENT WOULD
BE DISESTABLISHED AND UNRECOGNIZED ONLY "UNTIL AND UNLESS ...  (THE)
EMPLOYEES FREELY AND OF THEIR OWN CHOICE SELECT THE INDEPENDENT UNION
AS THEIR REPRESENTATIVE.  ..."  FN4 

IN ITS PETITION FOR CERTIORARI, THE BOARD CONTENDED THAT THE COURT
WAS WITHOUT JURISDICTION TO REVIEW A DIRECTION OF ELECTION AND THAT,
APART FROM THE QUESTION OF JURISDICTION, THE COURT HAD IMPROPERLY
INTERFERED WITH THE DISCRETION GIVEN THE BOARD BY THE ACT.  WE GRANTED
CERTIORARI TO REVIEW THESE IMPORTANT QUESTIONS.  FN5 

THE FIRST OF THE TWO CONSOLIDATED PROCEEDINGS BEFORE THE BOARD WAS
BASED UPON THE CHARGE OF THE AMALGAMATED, A LABOR ORGANIZATION, THAT
RESPONDENT HAD ENGAGED IN UNFAIR LABOR PRACTICES CONTRARY TO SEC. 8(1),
(2), (3) AND (5) OF THE ACT.  AS ALREADY NOTED, THE BOARD FOUND
RESPONDENT HAD INTERFERED WITH ITS EMPLOYEES' FREE CHOICE OF A
BARGAINING AGENT IN VIOLATION OF 8(1), (2) AND (3).  BECAUSE THERE WAS
NO CLEAR SHOWING THAT THE AMALGAMATED THEN REPRESENTED A MAJORITY OF
THE EMPLOYEES, THE BOARD DID NOT SUSTAIN THE CHARGE THAT RESPONDENT'S
REFUSAL TO BARGAIN COLLECTIVELY WITH AMALGAMATED AMOUNTED TO AN UNFAIR
LABOR PRACTICE UNDER 8(5). 

THE SECOND PHASE OF THE LABOR BOARD'S ACTION WAS TAKEN PURSUANT TO
SEC. 9(C)  FN6  OF THE ACT, AUTHORIZING THE BOARD TO INVESTIGATE AND
ASCERTAIN REPRESENTATIVES OF EMPLOYEES FOR COLLECTIVE BARGAINING.  AS
EXPRESSLY PERMITTED BY SUBSECTION (C), THE BOARD CONDUCTED THIS
INVESTIGATION, ITSELF A DISTINCT PROCEEDING, "IN CONJUNCTION WITH A
PROCEEDING UNDER SECTION 10" AND RENDERED ITS "DIRECTION OF ELECTION"
AT THE SAME TIME THE ORDER RELATIVE TO THE UNFAIR LABOR PRACTICES WAS
ENTERED "UNDER SECTION 10."  IT WAS THIS "DIRECTION OF ELECTION" THAT
PROVIDED FOR INCLUSION ON THE BALLOT OF AMALGAMATED (C.I.O.)  AND THE
OPERATING ENGINEERS (A.F.L.), BUT OMITTED THE INDEPENDENT.  THE
ELECTION WAS NOT ACTUALLY TO BE HELD UNTIL AFTER THE BOARD WAS
"SATISFIED THAT THE EFFECTS OF THE COMPANY'S UNFAIR LABOR PRACTICES
...  (HAD) BEEN DISSIPATED BY" COMPLIANCE WITH THE ORDER TO CEASE AND
DESIST AND TO DISESTABLISH THE INDEPENDENT. 

WHEN THE BOARD PETITIONED THE COURT OF APPEALS FOR ENFORCEMENT OF ITS
ORDER AGAINST RESPONDENT, IT FILED A TRANSCRIPT OF THE ENTIRE
CONSOLIDATED PROCEEDINGS HELD UNDER 9(C) AND 10(C). 

AFFIRMING THE FINDING OF UNFAIR LABOR PRACTICES AND ORDER MADE BY THE
BOARD UNDER 10(C), THE COURT CONSIDERED ITS POWER TO ACT AT AN END IF
NOTHING HAD BEEN BEFORE IT "BUT THE TERMS OF AN ELECTION BY THE
EMPLOYEES ABOUT TO TAKE PLACE."  BUT THE COURT HELD, ONE JUDGE
DISSENTING, THAT IT DID HAVE JURISDICTION TO ATTACH A CONDITION TO THE
BOARD'S ORDER WHEREBY INDEPENDENT MIGHT BECOME A CANDIDATE IN THE
PROPOSED ELECTION BECAUSE IT WAS "DISPOSING OF A LABOR DISPUTE CASE
WHEREIN THE PROCEEDINGS  ...  (HAD) GONE BEYOND MERE PLANS BY THE BOARD
FOR THE CALLING OF AN ELECTION" AND THEREFORE HAD BEFORE IT "FOR FINAL
DISPOSITION, THE MATTER OF THE SELECTION OF THE BARGAINING AGENT." 
HAVING THUS FOUND JURISDICTION IN ITSELF TO MAKE "FINAL DISPOSITION
...  OF THE SELECTION OF THE BARGAINING AGENT," THE COURT THOUGHT IT
NECESSARY SO TO CONDITION THE BOARD'S ORDER AS TO PREVENT THE
ELIMINATION "FOR ALL TIME (OF) ONE OF THE CANDIDATES - THE INDEPENDENT
UNION." 

RESPONDENT AND THE INTERVENING INDEPENDENT (COMPANY) UNION HERE
CONTEND THAT THE COURT BELOW DID NOT ACTUALLY MODIFY THE BOARD'S
"DIRECTION OF ELECTION," BUT IF DEEMED TO HAVE DONE SO, THE
MODIFICATION WAS AUTHORIZED UNDER EITHER SEC. 9(D) OR SEC. 10(E).  FN7
THEY ALSO SUPPORT THE RESULT BELOW ON THE GROUND THAT, AS THE COURT
BELOW BELIEVED, THE BOARD WAS WITHOUT POWER TO KEEP THE COMPANY UNION -
IF PURGED FROM COMPANY INFLUENCE - FROM THE BALLOT IN A FUTURE ELECTION
TO SELECT A BARGAINING AGENT, BECAUSE SUCH PROSCRIPTION WOULD IMPAIR
THE GUARANTEE IN SEC. 7 OF THE ACT THAT EMPLOYEES MAY BARGAIN
COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN FREE CHOICE. 

FIRST.  WE THINK IT APPARENT THAT THE CONDITIONS ATTACHED BY THE
COURT TO THE BOARD'S ORDER OPERATED AS A MODIFICATION OF THE BOARD'S
DIRECTION THAT INDEPENDENT BE OMITTED FROM THE BALLOT IN THE COMING
ELECTION.  IN CONDITIONING THE BOARD'S ORDER, THE COURT ACTED, AS IT
SAID, "THAT THE COMING ELECTION SHALL BE FREE, UNINFLUENCED BY THE
EMPLOYER, AND UNHAMPERED BY ANY ELECTION ORDER WHICH ELIMINATES (THE
INDEPENDENT) AS A CONTENDER."  IN EFFECT, THE COURT'S QUALIFICATION OF
THE BOARD'S ORDER JUDICIALLY PRONOUNCED - IN ADVANCE OF THE ELECTION -
THAT ELECTION METHODS CONSIDERED "SUITABLE" BY THE COURTS RATHER THAN
BY THE BOARD MUST BE FOLLOWED.  BUT SEC. 9 OF THE ACT VESTS POWER IN
THE BOARD, NOT IN THE COURT, TO SELECT THE METHOD OF DETERMINING WHAT
UNION, IF ANY, EMPLOYEES DESIRE AS A BARGAINING AGENT; TO THIS END, THE
BOARD "MAY TAKE A SECRET BALLOT OF EMPLOYEES, OR UTILIZE ANY OTHER
SUITABLE METHOD TO ASCERTAIN SUCH REPRESENTATIVES." 

NOR CAN AUTHORITY FOR SUCH ANTICIPATORY JUDICIAL CONTROL OF ELECTION
METHODS BE FOUND IN SEC. 9(D) WHICH PERMITS A REVIEW ONLY IN THOSE
CASES IN WHICH THE BOARD MAKES AN ORDER RELATING TO LABOR PRACTICES
FOUND TO BE UNFAIR AS A RESULT OF A PRIOR CERTIFICATION OF A SELECTED
BARGAINING AGENT.  FN8  HERE, THE BOARD'S ORDER THAT THE EMPLOYER CEASE
ITS UNFAIR PRACTICES, DISESTABLISH THE COMPANY UNION AND POST NOTICES
WAS NOT "BASED IN WHOLE OR IN PART UPON FACTS CERTIFIED" AS THE RESULT
OF AN ELECTION OR INVESTIGATION MADE BY THE BOARD PURSUANT TO SEC.
9(C).  THE PROPOSED ELECTION HERE HAS NOT EVEN BEEN HELD AND
CONSEQUENTLY NO CERTIFICATION OF A PROPER BARGAINING AGENT HAS BEEN
MADE BY THE BOARD.  UNTIL THAT ELECTION IS HELD, THERE CAN BE NO
CERTIFICATION OF A BARGAINING REPRESENTATIVE AND NO BOARD ORDER - BASED
ON A CERTIFICATION - HAS BEEN OR CAN BE MADE, SO AS TO INVOKE THE
COURT'S POWERS UNDER 9(D). 

THE FUNDAMENTAL ERROR OF THE COURT BELOW LAY IN ITS ASSUMPTION THAT
THERE WAS BEFORE IT "FOR FINAL DISPOSITION, THE MATTER OF THE SELECTION
OF THE BARGAINING AGENT."  THE COURT HAS NO RIGHT TO REVIEW A PROPOSED
ELECTION AND IN EFFECT TO SUPERVISE THE MANNER IN WHICH IT SHALL
THEREAFTER BE CONDUCTED.  FN9  THERE CAN BE NO COURT REVIEW UNDER 9(D)
UNTIL THE BOARD ISSUES AN ORDER AND REQUIRES THE EMPLOYER TO DO
SOMETHING PREDICATED UPON THE RESULT OF AN ELECTION. 

SINCE THIS EMPLOYER HAS NOT BEEN ORDERED BY THE BOARD TO DO ANYTHING
PREDICATED UPON THE RESULTS OF AN ELECTION THE COURT HAD NO AUTHORITY
TO ACT UNDER 9(D). 

SECOND.  THE COMPANY AND INDEPENDENT CONTEND, AS THE COURT BELOW
HELD, THAT THE BOARD'S ORDER OF DISESTABLISHMENT - ELIMINATING THE
INDEPENDENT FROM THE COMING ELECTION EVEN THOUGH PURGED OF COMPANY
INFLUENCE - VIOLATES SEC. 7  FN10  OF THE ACT WHICH GUARANTEES THE
RIGHT OF EMPLOYEES TO CHOOSE THEIR OWN BARGAINING REPRESENTATIVES.  ON
THIS PREMISE, THEY ARGUE THAT UNDER THE POWER IN 10(E) TO MODIFY ORDERS
OF THE BOARD, IT WAS THE DUTY OF THE COURT BELOW TO ALTER THE BOARD'S
ORDER OF DISESTABLISHMENT SO AS TO PROTECT THE RIGHT OF THE EMPLOYEES
TO CHOOSE THE INDEPENDENT IF PURGED OF COMPANY DOMINATION PRIOR TO THE
CONTEMPLATED ELECTION. 

ON THE CONTRARY, THE BOARD REACHED THE CONCLUSION THAT FULL
PROTECTION OF THE EMPLOYEES' RIGHT FREELY TO CHOOSE BARGAINING
REPRESENTATIVES REQUIRED COMPLETE DISESTABLISHMENT EFFECTING
ELIMINATION OF THE INDEPENDENT AS A CANDIDATE.  THE FINDINGS OF THE
BOARD, ON WHICH IT REACHED THIS CONCLUSION, IN PART WERE: 

SHORTLY AFTER THE PASSAGE OF THE NATIONAL INDUSTRIAL RECOVERY ACT IN
1933,  FN11  RESPONDENT BROUGHT INTO BEING A COMPANY DOMINATED UNION OF
ITS EMPLOYEES CALLED THE "WORKS COUNCIL" WHICH FUNCTIONED UNDER COMPANY
CONTROL UNTIL APRIL, 1937.  AT THAT TIME, THE A.F. OF L. AND THE C.I.O.
WERE MAKING INTENSIVE EFFORTS TO ORGANIZE RESPONDENT'S EMPLOYEES IN THE
FACE OF RESPONDENT'S HOSTILITY.  AS THE CAMPAIGN OF THE OUTSIDE UNIONS
PROGRESSED, THE COMPANY'S PERSONNEL MANAGER ARRANGED, FOR APRIL 12, THE
FIRST OF FOUR MEETINGS, HELD BY REPRESENTATIVES OF THE WORKS COUNCIL
DURING WORKING HOURS IN THE COMPANY'S PLANT HOSPITAL; IN THE COURSE OF
THESE MEETINGS THERE WAS A SUGGESTION THAT THE COMPANY WOULD ADVANCE
THE DATE OF A PROPOSED WAGE INCOME TO INFLUENCE THE EMPLOYEES' CHOICE
OF A UNION, AND THE NECESSITY FOR PROMPT INCORPORATION "BECAUSE THE
C.I.O. WAS WORKING IN THE PLANT" WAS MADE CLEAR; APRIL 18, A MEETING
WAS HELD OFF OF RESPONDENT'S PROPERTY, BUT NO DEFINITE FORM OF
ORGANIZATION WAS DECIDED UPON; APRIL 20, AFTER CONFERRING WITH AN
ATTORNEY WHOM RESPONDENT'S PRESIDENT HAD SUGGESTED, THREE EMPLOYEES
INCORPORATED THE INDEPENDENT AND NOTIFIED RESPONDENT THAT IT WAS READY
TO BARGAIN COLLECTIVELY FOR SOME FOUR HUNDRED EMPLOYEES; ON APRIL 23,
RESPONDENT RECOGNIZED THE INDEPENDENT AS THE BARGAINING UNIT FOR ALL
ITS EMPLOYEES UPON THE STATEMENT OF THE THREE INCORPORATORS, WITHOUT
PROOF, THAT THEY REPRESENTED A MAJORITY OF THE EMPLOYEES. 

IN SUMMARY, THE BOARD STATED THAT RESPONDENT HAD USED THE INDEPENDENT
"AS A CONVENIENT WEAPON TO PREVENT THE EXERCISE OF ITS EMPLOYEES'
RIGHTS TO SELF-ORGANIZATION AND COLLECTIVE BARGAINING."  AND THE COURT
BELOW, IN APPROVING THE FINDINGS OF THE BOARD, HELD THAT THE TESTIMONY
SHOWED THAT THE COMPANY "EARNESTLY ENDEAVORED TO PREVENT THE UNIONIZING
OF ITS EMPLOYEES AND WHEN THE INEVITABLE BECAME IMMINENT, IT SOUGHT TO
DOMINATE THE FORMATION, ORGANIZATION AND ACTIVITIES OF THE" COMPANY
UNION.  THE EVIDENCE ABUNDANTLY SUPPORTS THE CONCURRENT FINDINGS OF THE
BOARD AND THE COURT BELOW.  FN12 

FROM THESE FINDINGS THE BOARD JUSTIFIABLY DREW THE INFERENCE THAT
THIS COMPANY-CREATED UNION COULD NOT EMANCIPATE ITSELF FROM HABITUAL
SUBSERVIENCE TO ITS CREATOR, AND THAT IN ORDER TO INSURE EMPLOYEES THAT
COMPLETE FREEDOM OF CHOICE GUARANTEED BY SEC. 7, INDEPENDENT MUST BE
COMPLETELY DISESTABLISHED AND KEPT OFF THE BALLOT. 

CONGRESS HAS INTRUSTED THE POWER TO DRAW SUCH INFERENCES TO THE BOARD
AND NOT TO THE COURTS.  FN13  IN ORDER THAT 9(C) MIGHT BE AN EFFECTIVE
MEANS OF SELECTING FREELY CHOSEN REPRESENTATIVES FOR COLLECTIVE
BARGAINING AS GUARANTEED BY SEC. 7, THE BOARD ACTED WITHIN ITS POWER IN
DISESTABLISHING INDEPENDENT SO AS TO BAR IT FROM CONSIDERATION AS AN
EMPLOYEES' REPRESENTATIVE.  FN14 

THIRD.  THE COURT ALSO MODIFIED THE BOARD'S ORDER BY OMITTING THE
REQUIREMENT THAT THE NOTICES TO BE POSTED IN THE PLANT CONTAIN A
STATEMENT THAT THE COMPANY WOULD "CEASE AND DESIST" FROM ITS UNLAWFUL
ACTIVITIES.  AS STATED IN THE FIRST OPINION OF THE COURT BELOW,  FN15
THE PURPOSE OF THE BOARD IN REQUIRING THE COMPANY TO PUBLISH NOTICES
ASSURING ITS EMPLOYEES THAT IT WOULD "CEASE AND DESIST" HAD BEEN "TO
CONVEY TO THE EMPLOYEES THE KNOWLEDGE OF A GUARANTEE OF AN UNHAMPERED
RIGHT IN THE FUTURE TO DETERMINE THEIR OWN LABOR AFFILIATIONS." 
KNOWLEDGE ON THE PART OF THE MEN THAT THE COMPANY WOULD CEASE AND
DESIST FROM HAMPERING, INTERFERING WITH AND COERCING THEM IN SELECTION
OF A BARGAINING AGENT, WHICH THE BOARD FOUND THE COMPANY HAD DONE
SUCCESSFULLY IN THE PAST, WAS ESSENTIAL IF THE EMPLOYEES WERE TO FEEL
FREE TO EXERCISE THEIR RIGHTS WITHOUT INCURRING THE COMPANY'S
DISFAVOR.  BUT THE NOTICES AS PERMITTED BY THE COURT'S MODIFYING ORDER
NOT ONLY FAILED TO ASSURE THE MEN THAT THE COMPANY WOULD CEASE ITS
UNLAWFUL AND COERCIVE PRACTICES, BUT - BACKED WITH THE PRESTIGE OF A
FORMAL COURT ORDER - TOLD THE MEN THAT INDEPENDENT, WHILE IN TERMS
DISESTABLISHED FOR THE TIME BEING, WAS STILL AVAILABLE FOR SELECTION BY
THE EMPLOYEES.  THUS THE MODIFIED NOTICES NEITHER RENOUNCED THE
COMPANY'S UNLAWFUL PRACTICES NOR PROMISED THEIR ABANDONMENT, AND LEFT
AS A CANDIDATE THE INDEPENDENT, TOWARD WHICH THE UNRENOUNCED UNLAWFUL
ACTIVITIES OF THE COMPANY HAD BEEN DIRECTED.  WE THINK THE PLANT
NOTICES AS MODIFIED BY THE COURT'S ORDER FELL FAR SHORT OF CONVEYING
"TO THE EMPLOYEES THE KNOWLEDGE OF A GUARANTEE OF AN UNHAMPERED RIGHT
IN THE FUTURE TO DETERMINE THEIR LABOR AFFILIATIONS."    OTHER
CONTENTIONS OF RESPONDENT HAVE BEEN CONSIDERED AND FOUND WITHOUT
MERIT. 

THE COURT BELOW COMMITTED ERROR IN MODIFYING THE BOARD'S ORDER. 
ACCORDINGLY, THE CAUSE IS REMANDED TO THE COURT OF APPEALS WITH
INSTRUCTIONS TO ENFORCE THE BOARD'S ORDER WITHOUT ANY MODIFICATION. 
REVERSED. 

FN1  49 STAT. 449, 452, SEC. 8. 

FN2  ID., SEC. 9(C). 

FN3  102 F.2D 383, 390. 

FN4  106 F.2D 454, 456, 457. 

FN5  POST, P. 544. 

FN6  SEC. 9(C), 49 STAT. 453:  "WHENEVER A QUESTION AFFECTING
COMMERCE ARISES CONCERNING THE REPRESENTATION OF EMPLOYEES, THE BOARD
MAY INVESTIGATE SUCH CONTROVERSY AND CERTIFY TO THE PARTIES, IN
WRITING, THE NAME OR NAMES OF THE REPRESENTATIVES THAT HAVE BEEN
DESIGNATED OR SELECTED.  IN ANY SUCH INVESTIGATION, THE BOARD SHALL
PROVIDE FOR AN APPROPRIATE HEARING UPON DUE NOTICE, EITHER IN
CONJUNCTION WITH A PROCEEDING UNDER SECTION 10 OR OTHERWISE, AND MAY
TAKE A SECRET BALLOT OF EMPLOYEES, OR UTILIZE ANY OTHER SUITABLE METHOD
TO ASCERTAIN SUCH REPRESENTATIVES." 

FN7  "SEC.  9. 

"(D)  WHENEVER AN ORDER OF THE BOARD MADE PURSUANT TO SECTION 10(C)
IS BASED IN WHOLE OR IN PART UPON FACTS CERTIFIED FOLLOWING AN
INVESTIGATION PURSUANT TO SUBSECTION (C) OF THIS SECTION, AND THERE IS
A PETITION FOR THE ENFORCEMENT OR REVIEW OF SUCH ORDER, SUCH
CERTIFICATION AND THE RECORD OF SUCH INVESTIGATION SHALL BE INCLUDED IN
THE TRANSCRIPT OF THE ENTIRE RECORD REQUIRED TO BE FILED UNDER
SUBSECTIONS 10(E) OR 10(F), AND THEREUPON THE DECREE OF THE COURT
ENFORCING, MODIFYING, OR SETTING ASIDE IN WHOLE OR IN PART THE ORDER OF
THE BOARD SHALL BE MADE AND ENTERED UPON THE PLEADINGS, TESTIMONY, AND
PROCEEDINGS SET FORTH IN SUCH TRANSCRIPT. 

"SEC. 10. 

"(E)  THE BOARD SHALL HAVE POWER TO PETITION ANY CIRCUIT COURT OF
APPEALS  ...  WITHIN ANY CIRCUIT OR DISTRICT, RESPECTIVELY, WHEREIN THE
UNFAIR LABOR PRACTICE IN QUESTION OCCURRED OR WHEREIN SUCH PERSON
RESIDES OR TRANSACTS BUSINESS, FOR THE ENFORCEMENT OF SUCH ORDER AND
FOR APPROPRIATE TEMPORARY RELIEF OR RESTRAINING ORDER, AND SHALL
CERTIFY AND FILE IN THE COURT A TRANSCRIPT OF THE ENTIRE RECORD IN THE
PROCEEDING, INCLUDING THE PLEADINGS AND TESTIMONY UPON WHICH SUCH ORDER
WAS ENTERED AND THE FINDINGS AND ORDER OF THE BOARD.  UPON SUCH FILING,
THE COURT SHALL CAUSE NOTICE THEREOF TO BE SERVED UPON SUCH PERSON, AND
THEREUPON SHALL HAVE JURISDICTION OF THE PROCEEDING AND OF THE QUESTION
DETERMINED THEREIN, AND SHALL HAVE POWER TO GRANT SUCH TEMPORARY RELIEF
OR RESTRAINING ORDER AS IT DEEMS JUST AND PROPER, AND TO MAKE AND ENTER
UPON THE PLEADINGS, TESTIMONY, AND PROCEEDINGS SET FORTH IN SUCH
TRANSCRIPT A DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED,
OR SETTING ASIDE IN WHOLE OR IN PART THE ORDER OF THE BOARD.  ...  " 

FN8  AMERICAN FEDERATION OF LABOR V. LABOR BOARD, ANTE, PP. 406,
409. 

FN9  LABOR BOARD V. INTERNATIONAL BROTHERHOOD, ANTE, P. 413. 

FN10  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
CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID OR PROTECTION." 

FN11  48 STAT. 195, 198. 

FN12  CF. ILLINOIS CENTRAL R. CO. V. INTERSTATE COMMERCE COMM'N, 206
U.S. 441, 466. 

FN13  LABOR BOARD V. GREYHOUND LINES, 303 U.S. 261, 271; LABOR BOARD
V. NEWPORT NEWS SHIPBUILDING & DRY DOCK CO., ANTE, P. 241. 

FN14  REPORT OF HOUSE COMM. ON LABOR, HOUSE REPORT NO. 1147, 74TH
CONG., 1ST SESS., PP. 17-19: "IT IS OF THE ESSENCE THAT THE RIGHTS OF
EMPLOYEES TO SELF-ORGANIZATION AND TO JOIN OR ASSIST LABOR
ORGANIZATIONS SHOULD NOT BE REDUCED TO A MOCKERY BY THE IMPOSITION OF
EMPLOYERCONTROLLED LABOR ORGANIZATIONS, PARTICULARLY WHERE SUCH
ORGANIZATIONS ARE LIMITED TO THE EMPLOYEES OF THE PARTICULAR EMPLOYER
AND HAVE NO POTENTIAL ECONOMIC STRENGTH." 

FN15  THE COURT FIRST AFFIRMED THE FINDINGS AND ORDER OF THE BOARD,
102 F.2D 383; IT WROTE A SECOND OPINION REJECTING THE BOARD'S OBJECTION
TO THE FINAL DECREE EMBODYING THE DISPUTED CONDITIONS TO THE BOARD'S
ORDER, 106 F.2D 454. 

MR. JUSTICE MCREYNOLDS TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :

















BONET V. TEXAS CO., 308 U.S. 463 


NO. 132.  ARGUED DECEMBER 11, 1939.  - DECIDED JANUARY 2, 1940.  - 102
F.2D 710, REVERSED - 52 P.R. DEC. 658 - 53 ID. 475, AFFIRMED. 


1.  TO WARRANT REVERSAL OF A DECISION OF THE SUPREME COURT OF PUERTO
RICO ON CONSTRUCTION OF LOCAL STATUTES THE ERROR MUST BE MANIFEST; THE
INTERPRETATION MUST BE INESCAPABLY WRONG; THE DECISION MUST BE PATENTLY
ERRONEOUS.  P. 470. 

2.  THE CIRCUIT COURT OF APPEALS ERRED IN OVERRULING THE FOLLOWING
CONCLUSIONS OF THE SUPREME COURT OF PUERTO RICO, CONSTRUING ISLAND
STATUTES, VIZ., 

(A)  THAT UNDER SEC. 9 OF ACT NO. 102, 1925, AN UNINSURED EMPLOYER
COULD HAVE AN AWARD OF THE WORKMEN'S RELIEF COMMISSION REVIEWED,
INCLUDING THE ISSUE WHETHER OR NOT HE WAS INSURED.  PP. 465, 471. 

(B)  THAT IN PLACE OF THE PROVISION OF SEC. 7 OF THAT ACT FOR
COLLECTION BY THE ATTORNEY GENERAL OF AWARDS MADE AGAINST UNINSURED
EMPLOYERS, AMENDATORY LEGISLATION HAD SUBSTITUTED COLLECTION BY THE
TREASURER.  PP. 466, 472. 

(C)  THAT THE TREASURER HAD POWER OF DISTRAINT.  PP. 468, 472. 

BONET, TREASURER, V. TEXAS COMPANY (P.R.), INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

REVIEW BY CERTIORARI, POST, P. 538, OF A JUDGMENT OF THE CIRCUIT
COURT OF APPEALS WHICH REVERSED THE SUPREME COURT OF PUERTO RICO IN A
SUIT TO ENJOIN THE TREASURER OF THE ISLAND FROM ENFORCING BY DISTRAINT
ORDERS OF THE PUERTO RICO WORKMEN'S RELIEF COMMISSION. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BROUGHT THIS ACTION IN A PUERTO RICO COURT TO ENJOIN THE
TREASURER OF PUERTO RICO FROM ENFORCING BY DISTRAINT, ORDERS OF THE
PUERTO RICO WORKMEN'S RELIEF COMMISSION AWARDING COMPENSATION FOR THE
DEATH OF EACH OF THREE LABORERS WHILE IN THE EMPLOY OF RESPONDENT.  THE
SUPREME COURT OF PUERTO RICO INTERPRETED THE WORKMEN'S ACCIDENT
COMPENSATION ACT OF PUERTO RICO FN1  AS NOT PERMITTING SUCH COLLATERAL
ATTACK ON ORDERS OF THE COMMISSION AND AFFIRMED A JUDGMENT DISMISSING
THE BILL.  52 P.R. DEC. 658, 53 P.R. DEC. 475.  ON APPEAL (43 STAT.
936) THE CIRCUIT COURT OF APPEALS VACATED THAT JUDGMENT AND REMANDED
THE CAUSE WITH DIRECTIONS TO ISSUE THE INJUNCTION.  102 F.2D 710.  WE
GRANTED CERTIORARI BECAUSE OF THE ASSERTED VIOLATION BY THE CIRCUIT
COURT OF APPEALS OF THE WELL ESTABLISHED RULE THAT PUERTO RICAN
TRIBUNALS MUST NOT BE OVERRULED ON THEIR CONSTRUCTION OF LOCAL STATUTES
IN ABSENCE OF "CLEAR OR MANIFEST ERROR."  BONET V. YABUCOA SUGAR CO.,
306 U.S. 505; 307 U.S. 613. 

THE THEORY UNDERLYING RESPONDENT'S BILL WAS THAT IT WAS AN INSURED
EMPLOYER AND THEREFORE THE AWARDS SHOULD HAVE BEEN PAID OUT OF THE
STATE FUND,  FN2  AND THAT ITS REMEDY AT LAW WAS NOT ADEQUATE.  THE
BILL SO ALLEGED, AND ATTACKED THE ORDERS OF THE COMMISSION ADJUDGING
THAT IT WAS NOT AN INSURED EMPLOYER.  THE CAUSE WAS SUBMITTED, WITHOUT
AN ANSWER, ON A STIPULATION WHICH INCLUDED, INTER ALIA, AN ADMISSION BY
PETITIONER OF "THE ULTIMATE FACTS OF THE BILL, EXCEPT THE CONCLUSIONS
OF FACT OR OF LAW THAT IT MIGHT CONTAIN."  THE SUPREME COURT OF PUERTO
RICO IN EFFECT TREATED THIS STIPULATION AS A DEMURRER AND CONCLUDED
THAT PETITIONER HAD NOT THEREBY ADMITTED THAT RESPONDENT WAS AN INSURED
EMPLOYER.  THIS SEEMS TO HAVE BEEN A REASONABLE CONSTRUCTION -
CERTAINLY NOT MANIFEST ERROR. 

TREATING THE BILL THEN AS ONE BROUGHT BY AN UNINSURED EMPLOYER, THE
SUPREME COURT OF PUERTO RICO CONSTRUED THE ACT ON TWO POINTS:  (1) THE
RIGHT OF RESPONDENT TO APPEAL; (2) THE POWER OF PETITIONER TO
DISTRAIN. 

RIGHT TO APPEAL.  IT HELD THAT RESPONDENT HAD AN ADEQUATE REMEDY AT
LAW UNDER SEC. 9 OF THE ACT WHICH PROVIDED THAT "THE EMPLOYER MAY
APPEAL FROM ANY DECISION OF THE COMMISSION WHEN SUCH DECISION IS TO THE
EFFECT THAT THE ACCIDENT IS ONE FOR WHICH COMPENSATION IS GRANTED UNDER
THIS ACT."  FN3  AND IT INDICATED THAT ON SUCH APPEAL THE QUESTION OF
WHETHER OR NOT RESPONDENT WAS UNINSURED WAS AMONG THE ISSUES WHICH
COULD HAVE BEEN REVIEWED.  FN4  THE COMMISSION, HOWEVER, HAD DIRECTED
THE AWARDS TO THE ATTORNEY GENERAL ON APRIL 24, 1928, FOR COLLECTION
UNDER SEC. 7 OF THE ACT, A SECTION PROVIDING FOR COLLECTION OF AWARDS
AGAINST UNINSURED EMPLOYERS.  FN5  BUT EIGHT YEARS PASSED AND THE
ATTORNEY GENERAL MADE NO ATTEMPT TO COLLECT.  RESPONDENT CONTENDED THAT
IT DID NOT APPEAL UNDER SEC. 9 SINCE IT WAS WAITING TO DEFEND, ON THE
GROUND THAT IT WAS INSURED, AN ACTION BY THE ATTORNEY GENERAL UNDER
SEC. 7.  AND THOUGH A NEW METHOD OF COLLECTION OF SUCH AWARDS WAS
CREATED WITHIN A FEW MONTHS AFTER THESE AWARDS WERE MADE,  FN6
RESPONDENT CONTENDED THAT THE NEW LAW, IN PROVIDING THAT PENDING
LITIGATION WAS NOT TO BE AFFECTED,  FN7  PRESERVED ITS FORMER
OPPORTUNITY TO DEFEND UNDER SEC. 7.  TO THIS THE SUPREME COURT OF
PUERTO RICO REPLIED THAT THE PURPOSE OF THE SAVING CLAUSE IN THE NEW
ACT  FN8  WAS MERELY TO PRESERVE THE RIGHTS OF WORKMEN TO COMPENSATION,
NOT TO MAKE THE NEW PROCEDURE INAPPLICABLE TO PENDING CASES IN
CONTRADICTION TO THE WELL SETTLED RULE THAT PROCEDURAL STATUTES ARE
IMMEDIATELY APPLICABLE.  IT ALSO ADDED THAT IN ANY EVENT THE PROCEDURE
OF SEC. 7 HAD NOT SURVIVED THE ISSUANCE OF THE ORDER BY THE COMMISSION
SINCE BY THE 1935 AMENDMENT THAT PROCEDURE WAS TO BE "FOLLOWED IN SUCH
LITIGATIONS OR CLAIMS, UNTIL THEIR TERMINATION"  FN9  - THE ISSUANCE OF
THE ORDERS OF THE COMMISSION HAVING TERMINATED THE CASE WITHIN THE
MEANING OF THE AMENDMENT. 

THE CIRCUIT COURT OF APPEALS DISAGREED WITH THIS CONSTRUCTION OF THE
ACT.  IT HELD THAT SEC. 9 GAVE AN APPEAL ONLY TO INSURED EMPLOYERS AND
THAT ONLY SEC. 7 PROVIDED FOR REVIEW OF ORDERS ISSUED AGAINST THOSE WHO
WERE UNINSURED.  IT SAID THAT WHEN SEC. 9 STATED THAT "THE EMPLOYER MAY
APPEAL FROM ANY DECISION OF THE COMMISSION WHEN SUCH DECISION IS TO THE
EFFECT THAT THE ACCIDENT IS ONE FOR WHICH COMPENSATION IS GRANTED UNDER
THIS ACT," IT MEANT THAT ONLY INSURED EMPLOYERS COULD APPEAL SINCE THE
COMPENSATION GRANTED BY THE ACT WAS PAYMENT OUT OF THE STATE FUND. 
FN10  HENCE, IN ITS VIEW, THE ORDERS OF THE COMMISSION HERE IN QUESTION
WERE "TO THE EFFECT" THAT THE ACCIDENT WAS NOT ONE FOR WHICH
COMPENSATION WAS GRANTED UNDER THE ACT, SINCE THE COMMISSION HAD
ADJUDGED RESPONDENT TO BE UNINSURED.  CONSISTENTLY WITH THAT
CONSTRUCTION IT HELD THAT THE REMEDY OF AN AGGRIEVED UNINSURED EMPLOYER
WAS TO DEFEND ANY SUIT BROUGHT UNDER SEC. 7.  FOR IN ITS VIEW, THE
PROCEDURE UNDER SEC. 7 WAS NOT ABOLISHED BY THE AMENDMENTS, THE
ISSUANCE OF THE ORDERS OF THE COMMISSION NOT HAVING TERMINATED THE CASE
WITHIN THE MEANING OF THE SAVING CLAUSE QUOTED ABOVE.  ACCORDINGLY, IT
HELD THAT UNLESS PETITIONER WERE RESTRAINED FROM COLLECTING THE AWARDS,
RESPONDENT WOULD BE DEPRIVED OF ITS DAY IN COURT. 

POWER OF PETITIONER TO DISTRAIN.  THE SUPREME COURT OF PUERTO RICO
CONCLUDED THAT PETITIONER HAD THE POWER TO DISTRAIN BY VIRTUE OF THE
AMENDMENTS TO THE ACT MADE SUBSEQUENT TO THE ISSUANCE OF THE ORDERS OF
AWARD.  BY THE 1928 AMENDMENTS  FN11  SUMMARY PROCEDURE WAS AUTHORIZED
FOR COLLECTION OF A CLAIM "AS IF IT WERE A TAX LEVIED ON SUCH
PROPERTY."  SEC. 25.  ALTHOUGH THAT PHRASE WAS ELIMINATED BY THE 1935
AMENDMENTS, SEC. 15 OF THE LATTER MADE SUCH CLAIMS "LIENS PREFERRED
OVER ANY OTHER CHARGE OR LIEN FOR TAXES OR ANY OTHER CAUSE" WITH
SPECIFIED EXCEPTIONS.  FN12  THE COURT HELD THAT SINCE UNDER BOTH THE
1928 AND 1935 AMENDMENTS PETITIONER HAD THE DUTY TO COLLECT THE CLAIMS
AND SINCE UNDER BOTH THE CLAIM HAD THE STATUS OR LEGAL EFFECT OF A TAX,
THE POWER TO DISTRAIN SURVIVED. 

BUT THE CIRCUIT COURT OF APPEALS DISAGREED WITH THAT CONCLUSION.  IT
REASONED THAT PETITIONER HAD NO POWER TO COLLECT IN THAT MANNER SINCE
BY SEC. 15 OF THE 1935 AMENDMENTS THE PERSON WHO WAS TO "DETERMINE" THE
AMOUNT OF THE CLAIM AND "CERTIFY ITS DECISION" FN13  TO PETITIONER WAS
THE MANAGER OF THE STATE FUND CREATED UNDER THAT LAW.  FN14  THAT
PERSON NOT BEING THE SAME AS THE WORKMEN'S RELIEF COMMISSION WHICH HAD
ISSUED THE ORDERS IN QUESTION, SEC. 15 WAS NOT OPERATIVE AS RESPECTS
RESPONDENT.  THIS REASONING WAS INTERWOVEN WITH THE CONCLUSION OF THAT
COURT THAT THE NEW PROCEDURE PROVIDED BY THE 1928 AND 1935 AMENDMENTS
FN15 DID NOT REACH BACK TO TOUCH PENDING CASES, A RESULT CONTRARY TO
THE OPINION OF THE SUPREME COURT OF PUERTO RICO, AS WE HAVE NOTED. 

THE SUPREME COURT OF PUERTO RICO, ON THE OTHER HAND, DID NOT REACH
THE PRECISE POINT DETERMINATIVE OF THE POWER OF THE MANAGER OF THE
STATE FUND TO CERTIFY AN AWARD OF THE FORMER WORKMEN'S RELIEF
COMMISSION APPARENTLY BECAUSE IT WAS TACITLY ADMITTED THAT THAT POWER
EXISTED, FN16  IF THE REMEDY PROVIDED BY FORMER SEC. 7 HAD BEEN
ABOLISHED.  BUT HOWEVER THAT MAY BE, IT DID CONCLUDE THAT THE ACT AS
AMENDED, THOUGH NOT CLEAR, WAS DESIGNED TO GIVE THE PETITIONER POWER TO
DISTRAIN AND THAT THE PROCEDURE FOLLOWED WAS AUTHORIZED BY LAW. 

FOR OVER SIXTY YEARS THIS COURT HAS CONSISTENTLY RECOGNIZED THE
DEFERENCE DUE INTERPRETATIONS OF LOCAL LAW BY SUCH LOCAL COURTS UNLESS
THEY APPEARED TO BE CLEARLY WRONG.  FROM SWEENEY V. LOMME, 22 WALL. 
208, DECIDED IN 1874, TO BONET V. YABUCOA SUGAR CO., SUPRA, DECIDED IN
1939, REPEATED ADMONITIONS TO THAT EFFECT HAVE BEEN GIVEN.  THAT RULE
IS FOUNDED ON SOUND POLICY.  FN17  AS THIS COURT RECENTLY STATED,
"ORDERLY DEVELOPMENT OF THE GOVERNMENT OF PUERTO RICO AS AN INTEGRAL
PART OF OUR GOVERNMENTAL SYSTEM IS WELL SERVED BY A CAREFUL AND
CONSISTENT ADHERENCE TO THE LEGISLATIVE AND JUDICIAL POLICY OF
DEFERRING TO THE LOCAL PROCEDURE AND TRIBUNALS OF THE ISLAND."  BONET
V. YABUCOA SUGAR CO., SUPRA, P. 510. 

WE NOW REPEAT ONCE MORE THAT ADMONITION.  AND WE ADD THAT MERE LIP
SERVICE TO THAT RULE IS NOT ENOUGH.  TO REVERSE A JUDGMENT OF A PUERTO
RICAN TRIBUNAL ON SUCH A LOCAL MATTER AS THE INTERPRETATION OF AN ACT
OF THE LOCAL LEGISLATURE, IT WOULD NOT BE SUFFICIENT IF WE OR THE
CIRCUIT COURT OF APPEALS MERELY DISAGREED WITH THAT INTERPRETATION. 
NOR WOULD IT BE ENOUGH THAT THE PUERTO RICAN TRIBUNAL CHOSE WHAT MIGHT
SEEM, ON APPEAL, TO BE THE LESS REASONABLE OF TWO POSSIBLE
INTERPRETATIONS.  AND SUCH JUDGMENT OF REVERSAL WOULD NOT BE SUSTAINED
HERE EVEN THOUGH WE FELT THAT OF SEVERAL POSSIBLE INTERPRETATIONS THAT
OF THE CIRCUIT COURT OF APPEALS WAS THE MOST REASONABLE ONE.  FOR TO
JUSTIFY REVERSAL IN SUCH CASES, THE ERROR MUST BE CLEAR OR MANIFEST;
THE INTERPRETATION MUST BE INESCAPABLY WRONG; THE DECISION MUST BE
PATENTLY ERRONEOUS. 

MEASURED BY SUCH A TEST THE JUDGMENT OF THE SUPREME COURT OF PUERTO
RICO SHOULD NOT HAVE BEEN REVERSED.  IN CONCLUDING THAT UNDER SEC. 9 AN
UNINSURED EMPLOYER COULD HAVE AN AWARD OF THE COMMISSION REVIEWED,
INCLUDING THE ISSUE OF WHETHER OR NOT HE WAS INSURED, THE SUPREME COURT
OF PUERTO RICO DID NOT TAKE A PATENTLY ABSURD POSITION.  THE MOST THAT
CAN BE SAID IS THAT THE CONTRARY POSITION IS A TENABLE ONE.  IN HOLDING
THAT THE AMENDMENTS SUBSTITUTED COLLECTION BY THE PETITIONER FOR
COLLECTION BY THE ATTORNEY GENERAL EVEN IN CASE OF PENDING CLAIMS, THAT
TRIBUNAL DID NOT COMMIT MANIFEST ERROR.  THE CONCLUSION THAT THE LATTER
PROCEDURE SURVIVED THE AMENDMENTS IS MERELY ANOTHER POSSIBLE VIEW.  AND
THE DECISION OF THAT TRIBUNAL THAT THE PETITIONER HAD THE POWER TO
DISTRAIN  FN18  CANNOT BE SAID TO BE INESCAPABLY WRONG IN VIEW OF THE
LEGISLATIVE DESIGN TO LEAVE NO HIATUS IN THE STATUTORY SCHEME AS A
RESULT OF CUMULATIVE AMENDMENTS.  THE CONTRARY CONCLUSION, THOUGH IT
MIGHT SEEM WHOLLY REASONABLE, WOULD NOT WARRANT A REVERSAL. 

INTIMATIONS THAT RESPONDENT WAS NOT ACCORDED DUE PROCESS OF LAW AND
THAT THE QUESTION OF WHETHER OR NOT IT WAS INSURED WAS A JURISDICTIONAL
FACT OPEN TO COLLATERAL ATTACK ARE UNTENABLE.  ACCORDING TO THE SUPREME
COURT OF PUERTO RICO, RESPONDENT HAD NOT ONLY AN OPPORTUNITY TO BE
HEARD BEFORE THE COMMISSION BUT ALSO A RIGHT OF APPEAL.  THE FACT THAT
THE PERIOD FOR REVIEW BY APPEAL WAS VERY LIMITED AND THAT ON
RESPONDENT'S INTERPRETATION OF THE LAW ITS RIGHT TO APPEAL WAS
UNCERTAIN ARE IMMATERIAL.  HERE, AS ON OTHER ASPECTS OF THIS CASE, WE
CANNOT SAY THAT THE CONCLUSION OF THE SUPREME COURT OF PUERTO RICO THAT
UNDER THIS STATUTE THE REMEDY OF RESPONDENT AT LAW WAS ADEQUATE IS
OBVIOUSLY ERRONEOUS. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
JUDGMENT OF THE SUPREME COURT OF PUERTO RICO IS AFFIRMED.  REVERSED. 

FN1  ACT NO. 102, 1925, AS AMENDED BY ACT NO. 85, 1928 AND ACT NO.
45, 1935. 

FN2  AS TO THE CREATION OF THAT FUND, SEE SECS. 11, 27 OF ACT NO.
102, 1925. 

FN3  ACT NO. 102, 1925, SEC. 9.  THIRTY DAYS WERE ALLOWED FOR
PERFECTING THE APPEAL.  ID.  A COMPARABLE PROVISION FOR REVIEW IS FOUND
IN ACT NO. 85, 1928, SEC. 15, WHERE TEN DAYS WERE ALLOWED; AND IN ACT
NO. 45, 1935, SEC. 11, WHERE FIFTEEN DAYS ARE GRANTED. 

FN4  THIS POINT SEEMS TO HAVE BEEN FIRST DECIDED BY THE SUPREME COURT
OF PUERTO RICO ON A WRIT OF CERTIORARI BROUGHT BY RESPONDENT TO NULLIFY
THE ORDERS OF THE COMMISSION HERE INVOLVED.  THE COURT HELD THAT THE
WRIT DID NOT LIE SINCE IT APPLIED ONLY TO REVIEW THE ACTIONS OF
COURTS.  40 P.R.R. 456. 

FN5  SEC. 7 OF ACT NO. 102, 1925, PROVIDED IN PART: 

"IN THE CASE OF AN ACCIDENT TO A LABORER WHILE WORKING FOR AN
EMPLOYER WHO IN VIOLATION OF THE LAW IS UNINSURED, THE WORKMEN'S RELIEF
COMMISSION SHALL DETERMINE PROPER COMPENSATION, PLUS EXPENSES INCURRED
BY IT, AND SHALL REPORT THE SAME TO THE ATTORNEY GENERAL FOR
INSTITUTION OF PROPER ACTION, IN A COURT OF COMPETENT JURISDICTION,
AGAINST SAID EMPLOYER TO RECOVER THE AFORESAID SUM; PROVIDED, HOWEVER,
THAT THE COMMISSION SHALL GRANT THE EMPLOYER AS WELL AS THE LABORER IN
THE CASE AN OPPORTUNITY TO BE HEARD AND TO DEFEND THEMSELVES, AND SHALL
CONFORM, AS FAR AS POSSIBLE, TO THE PRACTICES OBSERVED BY THE COURTS OF
JUSTICE." 

FN6  ACT NO. 85, 1928, BECAME EFFECTIVE NINETY DAYS AFTER ITS
APPROVAL ON MAY 14, 1928.  SEC. 58.  THIS ACT BY SEC. 7 CREATED AN
INDUSTRIAL COMMISSION TO ADMINISTER THE ACT.  AND BY SEC. 25 COLLECTION
OF CLAIMS AGAINST UNINSURED EMPLOYERS WAS PROVIDED AS FOLLOWS: 

"IN CASE OF AN ACCIDENT TO A LABORER WHILE WORKING FOR AN EMPLOYER
WHO IN VIOLATION OF THE LAW IS UNINSURED, THE INDUSTRIAL COMMISSION
SHALL DETERMINE PROPER COMPENSATION, PLUS EXPENSES INCURRED BY IT, AND
SHALL CERTIFY ITS DECISION TO THE TREASURER OF PORTO RICO WHO SHALL
ASSESS SAID COMPENSATION, PLUS EXPENSES, ON THE EMPLOYER AND COLLECT
THEM FROM HIM; AND BOTH SUCH COMPENSATION AND SUCH EXPENSES SHALL
CONSTITUTE A LIEN ON ALL THE PROPERTY OF SAID EMPLOYER, WITH THE SAME
LEGAL EFFECT AND PRIORITY AS IF IT WERE A TAX LEVIED ON SUCH PROPERTY;
PROVIDED, HOWEVER, THAT THE COMMISSIONER SHALL GRANT BOTH THE EMPLOYER
AND THE LABORER IN THE CASE AN OPPORTUNITY TO BE HEARD AND TO DEFEND
THEMSELVES, AND HE SHALL CONFORM, AS FAR AS POSSIBLE, TO THE PRACTICES
OBSERVED BY THE DISTRICT COURTS."    THIS PROCEDURE, ACCORDING TO THE
SUPREME COURT OF PUERTO RICO, TOOK THE PLACE OF THAT PROVIDED BY SEC. 7
OF THE 1925 ACT, SUPRA, NOTE 5, BY REASON OF SEC. 57, "ALL LAWS OR
PARTS OF LAWS IN CONFLICT HEREWITH ARE HEREBY REPEALED." 

ON SEPTEMBER 14, 1936, THE INDUSTRIAL COMMISSION ISSUED AN ORDER
REQUESTING THE PETITIONER TO LEVY AN ATTACHMENT ON PROPERTIES OF
RESPONDENT. 

FN7  ACT NO. 85, 1928, SEC. 48, PROVIDED:  "THE PROVISIONS OF THIS
ACT SHALL IN NO WAY AFFECT PENDING LITIGATION RELATIVE TO WORKMEN'S
COMPENSATION UNDER PREVIOUS LAWS." 

FN8  ACT NO. 45, 1935, SEC. 34, ALSO PROVIDED: 

"THE PROVISIONS OF THIS ACT SHALL IN NO WAY AFFECT PENDING
LITIGATIONS OR CLAIMS RELATIVE TO WORKMEN'S COMPENSATION UNDER PREVIOUS
LAWS.  THE PROCEDURE FOLLOWED IN SUCH LITIGATIONS OR CLAIMS, UNTIL
THEIR TERMINATION, SHALL BE IN ACCORDANCE WITH THE LAWS IN FORCE ON THE
DATE OF THE ACCIDENT, AND THE WORKMEN SHALL BE ENTITLED TO SUCH SUM OF
MONEY AS MAY BE PRESCRIBED BY SAID LAWS." 

FN9  SUPRA, NOTE 8. 

FN10  THE CIRCUIT COURT OF APPEALS REFERRED TO SEC. 2 OF THE 1925 ACT
WHICH PROVIDED IN PART: 

"THIS ACT SHALL APPLY TO EVERY EMPLOYER WHO EMPLOYS ANY LABORER OR
EMPLOYEE WHOSE WAGES DO NOT EXCEED THE SUM OF FIFTEEN HUNDRED (1,500)
DOLLARS COMPUTED ANNUALLY; PROVIDED, THAT PURSUANT TO THE PROVISIONS OF
THIS ACT, COMPENSATION SHALL BE PAID TO INJURED LABORERS WHO BECOME
DISABLED OR WHO LOSE THEIR LIVES THROUGH ACCIDENTS ORIGINATING FROM ANY
ACT OR FUNCTION INHERENT IN THEIR WORK OR EMPLOYMENT AND OCCURRING
DURING THE COURSE OF THEIR EMPLOYMENT AS A CONSEQUENCE THEREOF OR FROM
OCCUPATIONAL DISEASES OR DEATH DUE TO SUCH OCCUPATION CONTRACTED IN ANY
WORK PERFORMED BY ADMINISTRATION UNDER THE DIRECTION OF THE INSULAR
GOVERNMENT, PAYABLE FROM THE GOVERNMENT TRUST FUND." 

FN11  SUPRA, NOTE 6. 

FN12  SEC. 15 OF ACT NO. 45, 1935, PROVIDED IN PART: 

"IN CASE OF AN ACCIDENT TO A WORKMAN OR EMPLOYEE WHILE WORKING FOR AN
EMPLOYER WHO, IN VIOLATION OF LAW, IS NOT INSURED, THE MANAGER OF THE
STATE FUND SHALL DETERMINE THE PROPER COMPENSATION PLUS THE EXPENSES IN
THE CASE, AND SHALL CERTIFY ITS DECISION TO THE TREASURER OF PUERTO
RICO WHO SHALL COLLECT FROM THE EMPLOYER SUCH COMPENSATION AND
EXPENSES, BOTH OF WHICH SHALL CONSTITUTE A LIEN ON ALL THE PROPERTY OF
THE EMPLOYER; PROVIDED, THAT SAID COMPENSATION AND EXPENSES ARE HEREBY
DECLARED TO BE LIENS PREFERRED OVER ANY OTHER CHARGE OR LIEN FOR TAXES
OR ANY OTHER CAUSE, WITH THE EXCEPTION OF THE MORTGAGE CREDITS, CROP
LOANS, AND PROPERTY TAXES ON THE ENCUMBERED PROPERTY FOR THREE YEARS
AND THE CURRENT YEAR, BURDENING THE PROPERTY OF THE EMPLOYER WHEN IT IS
ATTACHED TO SECURE THE SAID COMPENSATION AND EXPENSES; ...  " 

FN13  SUPRA, NOTE 12. 

FN14  ACT NO. 45, 1935, SEC. 6. 

FN15  SUPRA, NOTES 6, 12. 

FN16  IN ITS MOTION FOR RECONSIDERATION RESPONDENT STATED: 

"AS TAXES CAN BE COLLECTED BY DISTRAINT, IT IS CLEAR THAT UNDER THE
LAW OF 1928 THE COMPENSATIONS, WHICH WERE GIVEN THE SAME LEGAL PRIORITY
AND EFFECT OF TAXES, COULD BE COLLECTED BY DISTRAINT.  BUT THE ACT OF
1935 DOES NOT GIVE THEM SUCH LEGAL EFFECT OR PRIORITY, AND ONLY STATES
THAT THE TREASURER SHALL COLLECT THEM.  THAT BEING THE CASE, IT SHALL
BE TAKEN THAT HE CAN ONLY COLLECT THEM BY AN ORDINARY ACTION." 

FN17  IN DIAZ V. GONZALEZ, 261 U.S. 102, 105-106, ANOTHER PUERTO RICO
CASE, MR. JUSTICE HOLMES OBSERVED: 

"THIS COURT HAS STATED MANY TIMES THE DEFERENCE DUE TO THE
UNDERSTANDING OF THE LOCAL COURTS UPON MATTERS OF PURELY LOCAL
CONCERN.  IT IS ENOUGH TO CITE DE VILLANUEVA V. VILLANUEVA, 239 U.S.
293, 299.  NADAL V. MAY, 233 U.S. 447, 454.  THIS IS ESPECIALLY TRUE IN
DEALING WITH THE DECISIONS OF A COURT INHERITING AND BROUGHT UP IN A
DIFFERENT SYSTEM FROM THAT WHICH PREVAILS HERE.  WHEN WE CONTEMPLATE
SUCH A SYSTEM FROM THE OUTSIDE IT SEEMS LIKE A WALL OF STONE, EVERY
PART EVEN WITH ALL THE OTHERS, EXCEPT SO FAR AS OUR OWN LOCAL EDUCATION
MAY LEAD US TO SEE SUBORDINATIONS TO WHICH WE ARE ACCUSTOMED.  BUT TO
ONE BROUGHT UP WITHIN IT, VARYING EMPHASIS, TACIT ASSUMPTIONS,
UNWRITTEN PRACTICES, A THOUSAND INFLUENCES GAINED ONLY FROM LIFE, MAY
GIVE TO THE DIFFERENT PARTS WHOLLY NEW VALUES THAT LOGIC AND GRAMMAR
NEVER COULD HAVE GOT FROM THE BOOKS." 

FN18  THE SUPREME COURT OF PUERTO RICO ALSO HELD THAT SEC. 243 OF THE
CODE OF CIVIL PROCEDURE, BARRING EXECUTION OF A JUDGMENT FOR THE
PAYMENT OF MONEY AFTER FIVE YEARS FROM THE DATE OF ITS ENTRY, DOES NOT
APPLY TO ORDERS OF THE COMMISSION COVERING COMPENSATION AWARDS, A
CONSTRUCTION WHICH DOES NOT SEEM TO BE MANIFEST ERROR. 

MR. JUSTICE STONE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DISPOSITION OF THIS CASE. 
..END :








BOARD OF COMM'RS V. U.S., 308 U.S. 343 


NO. 14.  ARGUED OCTOBER 16, 1939.  - DECIDED DECEMBER 18, 1939.  - 100
F.2D 929, REVERSED IN PART. 


AN INDIAN ALLOTMENT WAS BY TREATY STIPULATION AND PROVISIONS OF A
TRUST PATENT, ISSUED UNDER THE GENERAL ALLOTMENT ACT, EXEMPT FROM
TAXATION SO LONG AS THE UNITED STATES SHOULD HOLD IT IN TRUST.  OVER
THE INDIAN'S OBJECTION, THE SECRETARY OF THE INTERIOR ISSUED TO THE
INDIAN A PATENT IN FEE SIMPLE, WHICH LATER, AFTER LONG AND UNEXCUSED
DELAY, HE CANCELED, BY AUTHORITY OF AN ACT OF CONGRESS.  IN THE
MEANTIME THE FEE PATENT HAD BEEN REGISTERED IN THE COUNTY, AND THE
COUNTY AUTHORITIES, IN RELIANCE UPON IT, HAD COLLECTED TAXES UPON THE
LAND.  THEREAFTER, THE UNITED STATES IN AN ACTION ON BEHALF OF THE
INDIAN RECOVERED A JUDGMENT AGAINST THE COUNTY FOR THE AMOUNT OF THE
TAX PAYMENTS WITH INTEREST.  HELD: 

1.  THE QUESTION WHETHER INTEREST SHOULD HAVE BEEN ALLOWED IS NOT
DETERMINED BY A LAW OF THE STATE PRECLUDING RECOVERY OF INTEREST FROM A
COUNTY UPON TAXES ILLEGALLY COLLECTED.  P. 349. 

2.  CONGRESS NOT HAVING SPECIFICALLY DEFINED THE RELIEF TO BE GRANTED
FOR LOSS SUFFERED THROUGH DENIAL OF THE TAX EXEMPTION, REMEDIAL DETAILS
ARE LEFT TO JUDICIAL IMPLICATIONS; AND, SINCE THE ORIGIN OF THE RIGHT
TO BE ENFORCED IS THE TREATY, WHATEVER RULE MAY BE FASHIONED AS TO
INTEREST IS ULTIMATELY ATTRIBUTABLE TO THE CONSTITUTION, TREATIES AND
STATUTES OF THE UNITED STATES.  P. 349. 

3.  IN DETERMINING THE QUESTION OF INTEREST HERE PRESENTED, THE COURT
IS GUIDED BY CONSIDERATIONS OF EQUITY AND OF PUBLIC CONVENIENCE; AND,
CONFORMABLY TO THOSE CONSIDERATIONS, THE STATE LAW OF INTEREST CAN BE
RESPECTED WITHOUT IMPINGING UPON THE EXEMPTION COMMANDED BY THE
TREATY.  PP. 350, 352. 

4.  IT IS A GENERAL PRINCIPLE THAT, IN THE ABSENCE OF EXPLICIT
CONGRESSIONAL POLICY CUTTING ACROSS STATE INTERESTS, BENEFICIARIES OF
FEDERAL RIGHTS ARE NOT TO HAVE A PREFERRED POSITION OVER OTHER
AGGRIEVED TAXPAYERS IN THEIR RELATION WITH THE STATES OR THEIR
POLITICAL SUBDIVISIONS.  P. 352. 

5.  IN GOVERNMENTAL ACTIONS BASED UPON QUASI-CONTRACTUAL OBLIGATIONS
INTEREST (IN THE ABSENCE OF STATUTORY DIRECTION) IS NOT RECOVERED
ACCORDING TO A RIGID THEORY OF COMPENSATION FOR MONEY WITHHELD, BUT IS
GIVEN OR DENIED IN RESPONSE TO CONSIDERATIONS OF FAIRNESS AND EQUITY. 
P. 352. 

6.  IN THE CIRCUMSTANCES OF THIS CASE, WHATEVER MAY BE THE DUTY OF
THE COUNTY TO REPAY THE TAXES WHICH THERE WAS EVERY PRACTICAL
JUSTIFICATION FOR COLLECTING AT THE TIME, THE COUNTY CAN NOT IN
FAIRNESS BE CALLED UPON TO PAY INTEREST FOR THE USE OF THE MONEY.  P.
353. 

BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF JACKSON, KANSAS, V.
UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 306 U.S. 629, TO REVIEW THE AFFIRMANCE OF A RECOVERY OF
COUNTY TAXES AND INTEREST. 

A COUNTY AS A GOVERNMENTAL AGENCY IS NOT LIABLE FOR INTEREST IN THE
ABSENCE OF A POSITIVE STATUTE SO REQUIRING OR AN EXPRESS AGREEMENT TO
PAY.  UNITED STATES V. NORTH CAROLINA, 136 U.S. 211; UNITED STATES V.
NORTH AMERICAN TRANSP.  & T. CO., 253 U.S. 330-336; SEABOARD AIR LINE
RY. CO. V. UNITED STATES, 261 U.S. 299-304; GLACIER COUNTY V. UNITED
STATES, 99 F.2D 733; UNITED STATES V. LEWIS COUNTY, 95 F.2D 236; UNITED
STATES V. NEZ PERCE COUNTY, 95 F.2D 232, 238; JACKSON COUNTY V. KAUL,
77 KAN. 715-717; SALT HOUSE V. MCPHERSON CO., 115 KAN. 668; SCHOOL
DISTRICT V. COUNTY COMMISSIONERS, 127 KAN. 292; KITTRIDGE V. BOYDE, 137
KAN. 241-243. 

THE GOVERNMENT MAY NOT, UNDER THE FACTS OF THIS CASE, DEMAND INTEREST
ON BEHALF OF AN INDIAN ALLOTTEE AS DAMAGES.  UNITED STATES V. NEZ PERCE
COUNTY, SUPRA; GLACIER COUNTY V. UNITED STATES, SUPRA; UNITED STATES V.
BOARD OF COUNTY COMMISSIONERS, 6 F.SUPP.  401; UNITED STATES V. BOARD
OF COUNTY COMMISSIONERS, 13 F.SUPP.  641. 

IF THERE WAS ANY MISTAKE IN ISSUING THE PATENT, OR IF THERE WAS ANY
LACHES IN ATTEMPTING TO SECURE A REFUND OF THE TAXES, IT WAS ON THE
PART OF THE GOVERNMENT AND THE GOVERNMENT OFFICIALS.  THE COUNTY
OFFICIALS WERE FULLY WARRANTED IN THINKING THAT THE LAND WAS SUBJECT TO
TAXATION FROM THE TIME THE PATENT WAS ISSUED IN 1918 UP UNTIL THE TIME
THE GOVERNMENT, ACTING UNDER THE LONG SUBSEQUENT ACT OF CONGRESS,
CANCELLED IT.  THE SOLE BASIS UPON WHICH THE AUTHORITIES HOLD THAT SUCH
TAXES MUST BE REFUNDED TO THE INDIAN ALLOTTEE IS THAT THEY WERE
COLLECTED DURING THE TIME OF THE EXISTENCE OF A PATENT TO THE ALLOTTEE
WHICH HAD BEEN ISSUED WITHOUT HIS OR HER REQUEST.  THE COUNTY WAS FULLY
WARRANTED IN ASSUMING THAT THE GOVERNMENT, THE TRUSTEE OF THE RIGHTS OF
THE INDIAN ALLOTTEE, HAD TAKEN ALL ESSENTIAL STEPS PRIOR TO THE TIME OF
THE ISSUANCE OF THE PATENT.  FOR THE GOVERNMENT NOW TO COME BACK ON THE
COUNTY LONG YEARS AFTER THE TAXES HAD BEEN COLLECTED, AND SPEAKING ON
BEHALF OF THE ALLOTTEE, ATTEMPT TO COLLECT INTEREST ON PAYMENTS OF
TAXES WHICH HAD BEEN ASSESSED IN GOOD FAITH BY THE COUNTY IN RELIANCE
UPON A FEE SIMPLE PATENT ISSUED BY THE GOVERNMENT TO THE ALLOTTEE, IS
TO PLACE AN UNWARRANTABLE BURDEN ON THE COUNTY. 

THERE BEING NO STATUTE PROVIDING FOR THE RECOVERY OF INTEREST, THE
DECISIONS OF THE KANSAS COURT THAT INTEREST IS NOT RECOVERABLE AGAINST
THE COUNTY SHOULD BE FOLLOWED.  BILLINGS V. UNITED STATES, 232 U.S.
261, 287; EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, 386; PROCTER &
GAMBLE DISTRIBUTING CO. V. SHERMAN, 2 F.2D 165; ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, 78. 

EVEN UNDER THE FEDERAL COURT RULE AS TO LIABILITY FOR INTEREST, THERE
IS NO LIABILITY IN THE PRESENT CASE.  BILLINGS V. UNITED STATES, 232
U.S. 261, 286. 

PUBLIC OFFICERS ARE PRESUMED TO DO THEIR DUTY, AND THERE IS A FURTHER
PRESUMPTION THAT ALL NECESSARY PRELIMINARY STEPS TO THE ISSUANCE OF A
PATENT HAVE BEEN TAKEN.  WRIGHT-BLODGETT CO. V. UNITED STATES, 236 U.S.
397; BOULDIN V. MASSIE, 7 WHEAT.  122; UNITED STATES V. PETERSON, 34
F.2D 245; UNITED STATES V. PORTER FUEL CO., 247 F. 769.  IT WAS
THEREFORE PROPER FOR ANY ONE TO ASSUME THAT THE PATENT HAD BEEN
REGULARLY ISSUED. 

THE EXEMPTION IS A FEDERAL RIGHT AND ITS SCOPE IS DETERMINED BY
FEDERAL LAW.  CARPENTER V. SHAW, 280 U.S. 363, 367; UNITED STATES V.
RICKERT, 188 U.S. 432. 

THE EXEMPTION SHOULD BE CONSTRUED BROADLY IN FAVOR OF THE ALLOTTEE. 
UNITED STATES V. SHOSHONE TRIBE, 304 U.S. 111, 116; CARPENTER V. SHAW,
SUPRA.  THE INDIAN IS ENTITLED TO AN OUTRIGHT EXEMPTION FROM ENFORCED
CONTRIBUTIONS FOR THE MAINTENANCE OF LOCAL GOVERNMENTS.  CHOATE V.
TRAPP, 224 U.S. 665; CF. UNITED STATES V. OSAGE COUNTY, 251 U.S. 128,
133.  THIS CLEARLY PRECLUDES THE EXISTENCE OF ANY RIGHT IN TERMS TO
DEMAND FROM THE ALLOTTEE THE UNCOMPENSATED USE OF HER MONEY OR PROPERTY
FOR THE SUPPORT OF THE COUNTY.  CARPENTER V. SHAW, SUPRA; WARD V. LOVE
COUNTY, 253 U.S. 17.  THE CLAIM OF THE ALLOTTEE FOR INTEREST IS MERELY
AN ASSERTION OF THE RIGHT TO BE MADE WHOLE FOR THE ENFORCED USE OF HER
MONEY IN VIOLATION OF THE EXEMPTION. 

FULL RESTITUTION REQUIRES THE PAYMENT OF INTEREST.  BILLINGS V.
UNITED STATES, 232 U.S. 261, 284-288.  THE DOCTRINE THAT INTEREST DOES
NOT RUN AGAINST THE SOVEREIGN HAS NO BEARING UPON THE SCOPE OF THE
EXEMPTION FROM LOCAL TAXES CONFERRED BY CONGRESS UPON THE ALLOTTEE. 
THIS COURT HAS, WITHOUT DISCUSSION, AFFIRMED OR REINSTATED JUDGMENTS
WHICH ALLOWED INTEREST AGAINST A COUNTY ON TAXES WRONGFULLY COLLECTED
FROM INDIAN ALLOTTEES.  WARD V. LOVE COUNTY, SUPRA; MCCURDY V. UNITED
STATES, 264 U.S. 484. 

FEDERAL COURTS MAY APPLY ESTABLISHED FEDERAL PRINCIPLES WHERE
INTEREST IS CLAIMED.  CONCORDIA INS. CO. V. SCHOOL DIST., 282 U.S. 545,
551.  THE STATE LAW, IF CONTRARY, MUST YIELD.  THE POWER OF CONGRESS
OVER THE INDIANS IN KANSAS IS PLENARY.  THE KANSAS INDIANS, 5 WALL. 
737, 755-756; SAGE V. HAMPE, 235 U.S. 99, 106.  CF. UNITED STATES V.
RICKERT, 188 U.S. 432; BUNCH V. COLE, 263 U.S. 250; CARPENTER V. SHAW,
SUPRA.  THE CONFLICT NEED NOT BE DIRECT OR IMMEDIATE; A POSSIBLE
INTERFERENCE WITH THE POLICY OF THE FEDERAL LAW MAY RENDER THE STATE
DOCTRINE INAPPLICABLE.  SAGE V. HAMPE, SUPRA; CF. TULLOCK V. MULVANE,
184 U.S. 497.  A SUIT BY THE UNITED STATES ON BEHALF OF ITS INDIAN
WARDS CAN NOT BE DEFEATED BY EITHER SUBSTANTIVE OR PROCEDURAL RULES OF
STATE LAW.  CARPENTER V. SHAW, SUPRA; DAVIS V. WECHSLER, 263 U.S. 22,
24.  NEITHER FISCAL ARRANGEMENTS NOR LOCAL DOCTRINES OF ESTOPPEL BIND
THE UNITED STATES SUING ON BEHALF OF ITS WARD.  CRAMER V. UNITED
STATES, 261 U.S. 219, 234; WARD V. LOVE COUNTY, SUPRA.  THERE CAN BE NO
RELIANCE UPON IMMUNITY TO SUIT.  UNITED STATES V. MINNESOTA, 270 U.S.
181; CHICOT COUNTY V. SHERWOOD, 148 U.S. 529. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE TO REVIEW AN AFFIRMANCE BY THE CIRCUIT COURT OF
APPEALS FOR THE TENTH CIRCUIT OF A RULING BY THE DISTRICT COURT FOR THE
DISTRICT OF KANSAS ALLOWING INTEREST IN A SUIT FOR THE RECOVERY OF
TAXES BY THE UNITED STATES ON BEHALF OF AN INDIAN UNDER CIRCUMSTANCES
PRESENTLY TO BE STATED.  100 F.2D 929.  WE GRANTED CERTIORARI BECAUSE
OF CONFLICTING VIEWS BETWEEN THE NINTH AND THE TENTH CIRCUITS.  SEE
UNITED STATES V. NEZ PERCE COUNTY, IDAHO, 95 F.2D 232.  FN1 

M-KO-QUAH-WAH IS A FULL-BLOODED POTTAWATOMIE INDIAN.  IN HER BEHALF
THE UNITED STATES ASSERTS WHATEVER RIGHTS SHE MAY HAVE FLOWING FROM THE
TREATY OF NOVEMBER 15, 1861, BETWEEN THE UNITED STATES AND THE
POTTAWATOMIE NATION OF INDIANS, 12 STAT. 1191, AND THE LEGISLATION IN
AID OF IT. THIS TREATY MADE LANDS HELD BY THE UNITED STATES IN TRUST
FOR THE POTTAWATOMIE INDIANS "EXEMPT FROM LEVY, TAXATION, OR SALE  ...
," "UNTIL OTHERWISE PROVIDED BY LAW.  ...  "  THE LAND WHICH GAVE RISE
TO THIS CONTROVERSY, SITUATED IN JACKSON COUNTY, KANSAS, WAS PATENTED
UNDER THE GENERAL ALLOTMENT ACT OF FEBRUARY 8, 1887, 24 STAT. 388, 25
U.S.C. SEC. 348.  IN PURSUANCE OF THIS ACT, THE UNITED STATES AGREED TO
HOLD THE LAND FOR TWENTY-FIVE YEARS UNDER THE RESTRICTIONS OF THE 1861
TREATY, SUBJECT TO EXTENSION AT THE PRESIDENT'S DISCRETION.  TWO TEN
YEAR EXTENSIONS WERE MADE BY EXECUTIVE ORDER, ONE, IN 1918 AND THE
OTHER IN 1928; AND BY THE ACT OF JUNE 18, 1934, THE EXISTING TRUST
PERIODS WERE INDEFINITELY EXTENDED BY CONGRESS.  48 STAT. 984. 

IN THIS LEGISLATIVE SETTING, THE SECRETARY OF THE INTERIOR IN 1918,
OVER THE OBJECTION OF M-KO-QUAH-WAH, CANCELLED HER OUTSTANDING TRUST
PATENT AND IN ITS PLACE ISSUED A FEE SIMPLE PATENT.  THIS WAS DULY
RECORDED IN THE REGISTRY OF DEEDS FOR JACKSON COUNTY.  IN CONSEQUENCE
JACKSON COUNTY IN 1919 BEGAN TO SUBJECT THE LAND TO ITS REGULAR
PROPERTY TAXES.  IT CONTINUED TO DO SO AS LONG AS THIS FEE SIMPLE
PATENT WAS LEFT UNDISTURBED BY THE UNITED STATES.  IN 1927 CONGRESS
AUTHORIZED THE SECRETARY OF THE INTERIOR TO CANCEL FEE SIMPLE PATENTS
THERETOFORE ISSUED OVER THE OBJECTION OF ALLOTTEES.  IN 1935 THE PATENT
FOR THE LAND IN CONTROVERSY WAS CANCELLED, AND IN THE NEXT YEAR
PROCEEDINGS WERE BEGUN BY THE UNITED STATES AS GUARDIAN OF M-KO-QUAH
WAH TO RECOVER THE TAXES WHICH JACKSON COUNTY HAD COLLECTED, AMOUNTING
TO $1,966.13, WITH INTEREST FROM THE RESPECTIVE DATES OF PAYMENT.  THE
DISTRICT COURT ALLOWED INTEREST AT 6%, AND A VERDICT FOR PRINCIPAL AND
INTEREST, AMOUNTING TO $3,277.49, WAS RETURNED BY THE JURY.  A JUDGMENT
UPON THIS VERDICT WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS. 
JACKSON COUNTY DOES NOT HERE CONTEST ITS LIABILITY FOR THE PRINCIPAL,
BUT CHALLENGES THE GOVERNMENT'S RIGHT TO INTEREST PRIOR TO JUDGMENT. 

THE ISSUE IS UNCONTROLLED BY ANY FORMAL EXPRESSION OF THE WILL OF
CONGRESS.  THE UNITED STATES URGES THAT WE MUST BE INDIFFERENT TO THE
LAW OF THE STATE PERTAINING TO THE RECOVERY OF TAXES IMPROPERLY LEVIED
ON LAND WITHIN IT.  JACKSON COUNTY, ON THE OTHER HAND, URGES THAT THE
LAW OF KANSAS CONTROLS.  IT IS SETTLED DOCTRINE THERE THAT A TAXPAYER
MAY NOT RECOVER FROM A COUNTY INTEREST UPON TAXES WRONGFULLY
COLLECTED.  JACKSON COUNTY V. KAUL, 77 KAN. 715; 96 P. 45. 

WE DEEM NEITHER THE JURISTIC THEORY URGED BY THE GOVERNMENT NOR THAT
OF JACKSON COUNTY ENTIRELY APPROPRIATE FOR THE SOLUTION OF OUR
PROBLEM.  THE STARTING POINT FOR RELIEF IN THIS CASE IS THE TREATY OF
1861, EXEMPTING M-KO-QUAH-WAH'S PROPERTY FROM TAXATION.  EFFECTUATION
OF THE EXEMPTION IS, OF COURSE, ENTIRELY WITHIN CONGRESSIONAL CONTROL. 
BUT CONGRESS HAS NOT SPECIFICALLY PROVIDED FOR THE PRESENT CONTINGENCY,
THAT IS, THE NATURE AND EXTENT OF RELIEF IN CASE LOSS IS SUFFERED
THROUGH DENIAL OF EXEMPTION.  IT HAS LEFT SUCH REMEDIAL DETAILS TO
JUDICIAL IMPLICATIONS.  SINCE THE ORIGIN OF THE RIGHT TO BE ENFORCED IS
THE TREATY, PLAINLY WHATEVER RULE WE FASHION IS ULTIMATELY ATTRIBUTABLE
TO THE CONSTITUTION, TREATIES OR STATUTES OF THE UNITED STATES, AND
DOES NOT OWE ITS AUTHORITY TO THE LAW-MAKING AGENCIES OF KANSAS.  CF.
ERIE R. CO. V. TOMPKINS, 304 U.S. 64.  AND SO THE CONCRETE PROBLEM IS
TO DETERMINE THE MATERIALS OUT OF WHICH THE JUDICIAL RULE REGARDING
INTEREST AS AN INCIDENT TO THE MAIN REMEDY SHOULD BE FORMULATED.  IN
ORDINARY SUITS WHERE THE GOVERNMENT SEEKS, AS BETWEEN ITSELF AND A
PRIVATE LITIGANT, TO ENFORCE A MONEY CLAIM ULTIMATELY DERIVED FROM A
FEDERAL LAW, THUS IMPLYING A WISH OF CONGRESS TO COLLECT WHAT IT DEEMED
FAIRLY OWING ACCORDING TO THE TRADITIONAL NOTIONS OF ANGLO-AMERICAN
LAW, THIS COURT HAS CHOSEN THAT RULE AS TO INTEREST WHICH COMPORTS BEST
WITH GENERAL NOTIONS OF EQUITY.  UNITED STATES V. SANBORN, 135 U.S.
271, 281; BILLINGS V. UNITED STATES, 232 U.S. 261.  INSTEAD OF CHOOSING
A RIGID RULE, THE COURT HAS DRAWN UPON THOSE FLEXIBLE CONSIDERATIONS OF
EQUITY WHICH ARE ESTABLISHED SOURCES FOR JUDICIAL LAW-MAKING. 

BUT THE PRESENT CASE INTRODUCES AN IMPORTANT FACTOR NOT PRESENT IN
FORMER DECISIONS.  THE LITIGATION IS NOT BETWEEN THE UNITED STATES AND
A PRIVATE LITIGANT, BUT BETWEEN THE UNITED STATES AND THE POLITICAL
SUBDIVISION OF A STATE.  IN EFFECT, THEREFORE, WE HAVE ANOTHER ASPECT
OF OUR TASK IN ADJUSTING THE INTERESTS OF TWO GOVERNMENTS WITHIN THE
SAME TERRITORY. 

NOTHING THAT THE STATE CAN DO WILL BE ALLOWED TO DESTROY THE FEDERAL
RIGHT WHICH IS TO BE VINDICATED; BUT IN DEFINING THE EXTENT OF THAT
RIGHT ITS RELATION TO THE OPERATION OF STATE LAWS IS RELEVANT.  THE
STATE WILL NOT BE ALLOWED TO INVADE THE IMMUNITIES OF INDIANS, NO
MATTER HOW SKILFUL ITS LEGAL MANIPULATIONS.  UNITED STATES V. RICKERT,
188 U.S. 432.  CF. BUNCH V. COLE, 263 U.S. 250.  NOR ARE THE FEDERAL
COURTS RESTRICTED TO THE REMEDIES AVAILABLE IN STATE COURTS IN
ENFORCING SUCH FEDERAL RIGHTS.  UNITED STATES V. OSAGE COUNTY, 251 U.S.
128; WARD V. LOVE COUNTY, 253 U.S. 17.  NOR MAY THE RIGHT TO RECOVER
TAXES ILLEGALLY COLLECTED FROM INDIANS BE UNDULY CIRCUMSCRIBED BY STATE
LAW.  CARPENTER V. SHAW, 280 U.S. 363.  AGAIN, STATE NOTIONS OF LACHES
AND STATE STATUTES OF LIMITATIONS HAVE NO APPLICABILITY TO SUITS BY THE
GOVERNMENT, WHETHER ON BEHALF OF INDIANS OR OTHERWISE.  UNITED STATES
V. MINNESOTA, 270 U.S. 181.  CF. CHESAPEAKE & DELAWARE CANAL CO. V.
UNITED STATES, 250 U.S. 123.  THIS IS SO BECAUSE THE IMMUNITY OF THE
SOVEREIGN FROM THESE DEFENSES IS HISTORIC.  UNLESS EXPRESSLY WAIVED, IT
IS IMPLIED IN ALL FEDERAL ENACTMENTS. 

BUT THE RECOVERY OF INTEREST IN INTER-GOVERNMENTAL LITIGATION HAS NO
SUCH ROOTS IN HISTORY.  INDEED, LIABILITY FOR INTEREST IS OF RELATIVELY
RECENT ORIGIN AND THE RATIONALE OF ITS RECOGNITION OR DENIAL IS NOT
ALWAYS CLEAR.  THAT IT IS NOT A CONGENITAL RULE IN OUR LAW IS INDICATED
BY ITS DENIAL IN UNITED STATES V. NORTH CAROLINA, 136 U.S. 211, ON
GROUNDS OF "PUBLIC CONVENIENCE."  SINCE CONGRESS HAS, IN THE
LEGISLATION IMPLEMENTING THE INDIANS' TAX IMMUNITY, REMAINED SILENT AS
TO RECOVERY OF INTEREST, WE NEED NOT PRESUME THAT IT HAS IMPLIEDLY
FIXED LIABILITY FOR INTEREST IN A SUIT LIKE THE PRESENT.    HAVING LEFT
THE MATTER AT LARGE FOR JUDICIAL DETERMINATION WITHIN THE FRAMEWORK OF
FAMILIAR REMEDIES EQUITABLE IN THEIR NATURE, SEE STONE V. WHITE, 301
U.S. 532, 534, CONGRESS HAS LEFT US FREE TO TAKE INTO ACCOUNT
APPROPRIATE CONSIDERATIONS OF "PUBLIC CONVENIENCE."  CF. VIRGINIAN RY.
CO. V. FEDERATION, 300 U.S. 515, 552.  NOTHING SEEMS TO US MORE
APPROPRIATE THAN DUE REGARD FOR LOCAL INSTITUTIONS AND LOCAL
INTERESTS.  WE ARE CONCERNED WITH THE INTERPLAY BETWEEN THE RIGHTS OF
INDIANS UNDER FEDERAL GUARDIANSHIP AND THE LOCAL REPERCUSSION OF THOSE
RIGHTS.  CONGRESS HAS NOT BEEN HEEDLESS OF THE INTERESTS OF THE STATES
IN WHICH INDIAN LANDS WERE SITUATED, AS REFLECTED BY THEIR LOCAL LAWS. 
SEE, E.G., SEC. 5 OF THE GENERAL ALLOTMENT ACT OF 1887, 24 STAT. 388,
389.  WITH REFERENCE TO OTHER FEDERAL RIGHTS, THE STATE LAW HAS BEEN
ABSORBED, AS IT WERE, AS THE GOVERNING FEDERAL RULE NOT BECAUSE STATE
LAW WAS THE SOURCE OF THE RIGHT BUT BECAUSE RECOGNITION OF STATE
INTERESTS WAS NOT DEEMED INCONSISTENT WITH FEDERAL POLICY.  SEE BROWN
V. UNITED STATES, 263 U.S. 78; SEABOARD AIR LINE R. CO. V. UNITED
STATES, 261 U.S. 299.  IN THE ABSENCE OF EXPLICIT LEGISLATIVE POLICY
CUTTING ACROSS STATE INTERESTS, WE DRAW UPON A GENERAL PRINCIPLE THAT
THE BENEFICIARIES OF FEDERAL RIGHTS ARE NOT TO HAVE A PRIVILEGED
POSITION OVER OTHER AGGRIEVED TAX-PAYERS IN THEIR RELATION WITH THE
STATES OR THEIR POLITICAL SUBDIVISIONS.  TO RESPECT THE LAW OF INTEREST
PREVAILING IN KANSAS IN NO WISE IMPINGES UPON THE EXEMPTION WHICH THE
TREATY OF 1861 HAS COMMANDED KANSAS TO RESPECT AND THE FEDERAL COURTS
TO VINDICATE. 

ASSUMING, HOWEVER, THAT THE LAW AS TO INTEREST IN GOVERNMENTAL
ACTIONS BASED UPON QUASI-CONTRACTUAL OBLIGATIONS BE APPLICABLE, THE
UNITED STATES MUST FAIL HERE.  THE CASES TEACH THAT INTEREST IS NOT
RECOVERED ACCORDING TO A RIGID THEORY OF COMPENSATION FOR MONEY
WITHHELD, BUT IS GIVEN IN RESPONSE TO CONSIDERATIONS OF FAIRNESS.  IT
IS DENIED WHEN ITS EXACTION WOULD BE INEQUITABLE.  UNITED STATES V.
SANBORN, 135 U.S. 271, 281; BILLINGS V. UNITED STATES, 232 U.S. 261. 

JACKSON COUNTY IN ALL INNOCENCE ACTED IN RELIANCE ON A FEE PATENT
GIVEN UNDER THE HAND OF THE PRESIDENT OF THE UNITED STATES.  EVEN AFTER
CONGRESS IN 1927 AUTHORIZED THE SECRETARY OF THE INTERIOR TO CANCEL
SUCH A PATENT, IT WAS NOT UNTIL 1935 THAT SUCH CANCELLATION WAS MADE. 
HERE IS A LONG, UNEXCUSED DELAY IN THE ASSERTION OF A RIGHT FOR WHICH
JACKSON COUNTY SHOULD NOT BE PENALIZED.  BY VIRTUE OF THE MOST
AUTHORITATIVE SEMBLANCE OF LEGITIMACY UNDER NATIONAL LAW, THE LAND OF M
KO-QUAH-WAH AND THE LANDS OF OTHER INDIANS HAD BECOME PART OF THE
ECONOMY OF JACKSON COUNTY.  FOR EIGHT YEARS AFTER CONGRESS HAD DIRECTED
ATTENTION TO THE PROBLEM, THOSE SPECIALLY ENTRUSTED WITH THE
INTRICACIES OF INDIAN LAW DID NOT CALL JACKSON COUNTY'S ACTION INTO
QUESTION.  WHATEVER MAY BE HER UNFORTUNATE DUTY TO RESTORE THE TAXES
WHICH SHE HAD EVERY PRACTICAL JUSTIFICATION FOR COLLECTING AT THE TIME,
NO CLAIM OF FAIRNESS CALLS UPON HER ALSO TO PAY INTEREST FOR THE USE OF
THE MONEY WHICH SHE COULD NOT HAVE KNOWN WAS NOT PROPERLY HERS. 

SUCH IS THIS COURT'S DOCTRINE REGARDING THE IMPOSITION OF INTEREST IN
CASES WHERE THIS COURT HAS FASHIONED ITS OWN DOCTRINE.  IF IT BE SAID
THAT THE DEFAULT OF THE UNITED STATES SHOULD NOT BE CHARGED AGAINST ITS
INDIAN WARDS, A CHOICE HAS TO BE MADE BETWEEN EQUALLY INNOCENT VICTIMS
OF OFFICIAL NEGLECT FROM 1918 UNTIL 1936 IN THE ADMINISTRATION OF THE
INDIAN LAW.  THE LOSS OF INTEREST TO THE UNITED STATES BECAUSE OF THE
CONDUCT OF ITS OFFICIALS IN THE SANBORN AND BILLINGS CASES, SUPRA, HAD
TO BE BORNE BY THE INNOCENT PUBLIC.  WE THINK AS TO INTEREST HERE, THE
LOSS SHOULD REMAIN WHERE IT HAS FALLEN.  IF THEREBY INDIANS ARE OUT OF
POCKET, THEY SHOULD NOT BE MADE WHOLE BY PUTTING JACKSON COUNTY
UNFAIRLY OUT OF POCKET.  THE APPEAL FOR RELIEF MUST BE MADE ELSEWHERE. 

THE JUDGMENT BELOW MUST ACCORDINGLY BE MODIFIED, AND THE CASE IS
REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. 
JUDGMENT MODIFIED. 

FN1  THIS CASE HAS SINCE BEEN FOLLOWED BY THE SAME COURT IN UNITED
STATES V. LEWIS COUNTY, IDAHO, 95 F.2D 236, AND GLACIER COUNTY, MONT.,
V. UNITED STATES, 99 F.2D 733. 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 

OPINION OF MR. JUSTICE BLACK. 

CONGRESS HAS TRADITIONALLY TREATED THE INDIAN WARDS OF THE NATION
WITH PARTICULAR SOLICITUDE, FN1  BUT HAS ALSO GRADUALLY EVOLVED A
POLICY LOOKING TO THEIR EVENTUAL ABSORPTION INTO THE GENERAL BODY OF
CITIZENRY.  FN2  THIS POLICY HAS PROGRESSIVELY SUBJECTED INDIANS TO THE
LAWS UNDER WHICH ALL OTHER CITIZENS MUST LIVE IN THE INDIANS' STATES OF
RESIDENCE, IF NOT IN CONFLICT WITH SPECIFIC PROTECTIVE MEASURES OF
CONGRESS.  FN3  HERE, IN THE EXERCISE OF ITS PLENARY AUTHORITY,
CONGRESS BY TREATY EXEMPTED THE LANDS OF THE POTTAWATOMIES FROM
TAXATION.  IT COULD HAVE BY STIPULATION GRANTED THE ADDITIONAL RIGHT TO
RECOVER INTEREST ON ANY TAXES COLLECTED IN VIOLATION OF THE EXEMPTION;
BUT IT DID NOT.  THE FAILURE OF CONGRESS TO STIPULATE THAT A STATE - AS
HERE - MUST PAY INTEREST TO AN INDIAN WHEN THE STATE LAW PERMITS
INTEREST TO NO ONE,  FN4  IS ENTIRELY CONSISTENT WITH THE CONGRESSIONAL
POLICY OF STEADILY EXTENDING THE OPERATION OF THE STATES' LAWS OVER
THEIR RESIDENT INDIANS.  CONGRESS - WITH EXCLUSIVE PLENARY POWER TO
LEGISLATE CONCERNING THE INDIANS - HAS NOT PROVIDED FOR RECOVERY OF
INTEREST FROM KANSAS, AND THE COURTS HAVE NO CONSTITUTIONAL POWER TO
CREATE THE RIGHT. 

THAT CONGRESS CONTENTED ITSELF WITH THE CREATION OF THE RIGHT TO BE
FREE FROM TAXATION - AS DISTINGUISHED FROM A RIGHT TO INTEREST IN A
SUIT FOR REFUND - IS EMPHASIZED BY THE CONCLUSION WHICH WOULD BE
INESCAPABLE WERE THIS A SUIT AGAINST THE UNITED STATES FOR VIOLATION OF
THE EXEMPTION HERE CONCEDED TO BE BINDING ON IT.  FN5  WITHOUT MORE,
FN6  CONGRESS WOULD THEN - EVEN ON THE BASIS OF THIS CONCESSION - BE
DEEMED TO HAVE REFUSED TO CREATE THE SEPARATE RIGHT TO RECOVER
INTEREST.  FN7 

BECAUSE THE LAWS OF KANSAS DENY INTEREST ON TAX REFUNDS, I CONCUR IN
THE MODIFICATION OF THE JUDGMENT BELOW.  FN8 

FN1  LONE WOLF V. HITCHCOCK, 187 U.S. 553, 564-6, 568; UNITED STATES
V. PELICAN, 232 U.S. 442, 450. 

FN2  CHIPPEWA INDIANS V. UNITED STATES, 307 U.S. 1, 4; SEE STUART V.
UNITED STATES, 18 WALL.  84, 87; MATTER OF HEFF, 197 U.S. 488, 497-503;
LANE V. MICKADIET, 241 U.S. 201, 210; DICKSON V. LUCK LAND CO., 242
U.S. 371, 375; MCCURDY V. UNITED STATES, 246 U.S. 263, 269. 

FN3  SEE MATTER OF HEFF, SUPRA; LA MOTTE V. UNITED STATES, 254 U.S.
570, 579, 580; SPERRY OIL CO. V. CHISHOLM, 264 U.S. 488, 498; LARKIN V.
PAUGH, 276 U.S. 431, 438-9; UNITED STATES V. MCGOWAN, 302 U.S. 535,
539. 

FN4  JACKSON COUNTY V. KAUL, 77 KAN. 717; 96 P. 45. 

FN5  THE GOVERNMENT BASES ITS CONCESSION ON CHOATE V. TRAPP, 224 U.S.
665.  BUT SEE THE CHEROKEE TOBACCO, 11 WALL.  616; WARD V. RACE HORSE,
163 U.S. 504, 511; LONE WOLF V. HITCHCOCK, SUPRA, 566. 

FN6  CF. 26 U.S.C. 1671(A). 

FN7  ANGARICA V. BAYARD, 127 U.S. 251, 260; UNITED STATES V. NORTH
AMERICAN CO., 253 U.S. 330, 336; SMYTHE V. UNITED STATES, 302 U.S. 329,
353.  CF. UNITED STATES V. NORTH CAROLINA, 136 U.S. 211. 

FN8  CF. ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 

MR. JUSTICE DOUGLAS CONCURS IN THIS OPINION. 
..END :























GRIFFITHS V. COMMISSIONER, 308 U.S. 355 


NO. 49.  ARGUED DECEMBER 5, 1939.  - DECIDED DECEMBER 18, 1939.  - 103
F.2D 110, AFFIRMED. 


A TAXPAYER CANNOT ESCAPE OR POSTPONE THE INCOME TAX ON THE PROFIT
DERIVED FROM A SALE OF HIS STOCK BY INTERPOSING AS VENDOR IN THE
TRANSACTION A CORPORATION FORMED FOR THE PURPOSE AND WHOLLY CONTROLLED
BY HIMSELF, WHICH, IN FORM, RECEIVES FROM HIM A CONVEYANCE OF THE
SHARES, TRANSFERS THEM TO THE PURCHASER, RECEIVES THE PURCHASER'S MONEY
AND AGREES TO PAY IT OVER TO THE TAXPAYER IN ANNUAL INSTALMENTS.  P.
357. 

GRIFFITHS V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 531, TO REVIEW A DECISION WHICH REVERSED AN
ORDER OF THE BOARD OF TAX APPEALS, 37 B.T.A. 314, OVERRULING A
DEFICIENCY INCOME TAX ASSESSMENT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE TO REVIEW A DECISION OF THE CIRCUIT COURT OF APPEALS
FOR THE SEVENTH CIRCUIT, 103 F.2D 110, REVERSING AN ORDER OF THE BOARD
OF TAX APPEALS, 37 B. T.A. 314, WHICH HAD OVERRULED A DEFICIENCY
ASSESSMENT BY THE COMMISSIONER OF INTERNAL REVENUE IN PETITIONER'S
INCOME TAX RETURN FOR 1933.  WE GRANTED CERTIORARI, POST, P. 531,
BECAUSE OF AN ALLEGED CONFLICT BETWEEN THE DECISION BELOW AND THAT OF
THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT IN SMITH V.
HIGGINS, 102 F.2D 456; POST, P. 473. 

THE FACTS ARE UNDISPUTED, AND, FOR PURPOSES OF OUR DECISION, MAY BE
THUS ABRIDGED:  IN 1926 GRIFFITHS, THE PETITIONER, PAID ONE LAY
$100,000 FOR SOME STOCK.  THE INVESTMENT WAS UNPROFITABLE, AND THE
UPSHOT OF A COMPLICATED SERIES OF TRANSACTIONS WAS ALLOWANCE TO
GRIFFITHS BY THE COMMISSIONER OF A DEDUCTIBLE LOSS OF $92,500 FOR THE
YEAR 1931 RESULTING FROM A SALE OF THE STOCK BY GRIFFITHS TO A FAMILY
CORPORATION.  THEREAFTER, IN 1932, GRIFFITHS GOT WIND OF THE FACT THAT
LAY HAD DEFRAUDED HIM IN THE 1926 SALE.  NEGOTIATIONS WERE BEGUN FOR A
SETTLEMENT OF GRIFFITHS' CLAIM AGAINST LAY, AND BY JANUARY 1933,
GRIFFITHS' LAWYER HAD DEVISED AN ARRANGEMENT FOR SUCH A SETTLEMENT. 
THE GIST OF THE ARRANGEMENT WAS THIS:  GRIFFITHS WAS TO RE-ACQUIRE THE
SHARES, CONVEY THEM TO A CORPORATION NEWLY CREATED FOR THE PURPOSE OF
FURTHERING THE SCHEME AND WHOLLY CONTROLLED BY GRIFFITHS, WHICH IN TURN
WAS TO TRANSFER THE STOCK BACK TO LAY FOR $100,000 TO BE PAID BY HIM,
AND THAT SUM WAS TO BE PAID OVER BY THE CORPORATION TO GRIFFITHS IN
ANNUAL INSTALLMENTS FOR FORTY YEARS, WITH INTEREST ON THE DEFERRED
PAYMENTS.  FN1  THE ESSENTIALS OF THIS SCHEME WERE CARRIED OUT.  ITS
PURPOSE - TO DISGUISE BY INTERVENING ELABORATIONS WHAT IN FACT WAS A
RESCISSION OF THE ORIGINAL PURCHASE BY GRIFFITHS FOR $100,000 - WAS
MADE MORE MANIFEST BY THESE FACTS:  GRIFFITHS PERSONALLY RE-ACQUIRED
AND TRANSFERRED THE SHARES TO LAY WITHOUT REVEALING THE EXISTENCE OF
THE NEW CORPORATION, GAVE LAY A PERSONAL RELEASE OF ALL CLAIMS AGAINST
HIM, AND PERSONALLY RECEIVED FROM LAY THE $100,000 WHICH HE THEN TURNED
OVER TO THE CORPORATION. 

ON THESE FINDINGS THE COMMISSIONER RULED THAT GRIFFITHS, HAVING BEEN
ALLOWED A DEDUCTION FOR LOSS ATTRIBUTABLE TO THE STOCK PURCHASED FROM
LAY AND HAVING NOW RECOUPED THAT LOSS THROUGH SETTLEMENT OF HIS CLAIM
AGAINST LAY, WAS SUBJECT TO TAX FOR THE AMOUNT OF THE SETTLEMENT IN
1933.  WE THINK THE COMMISSIONER WAS RIGHT, AND THAT THE CIRCUIT COURT
OF APPEALS PROPERLY REVERSED THE BOARD OF TAX APPEALS. 

THE FACTS LEAVE LITTLE SCOPE FOR LEGAL EXPLICATION.  GRIFFITHS HAD A
CLAIM FOR FRAUD AGAINST LAY WHICH, WHEN SATISFIED, WIPED OUT THE LOSS
FOR WHICH HE HAD RECEIVED AN EARLIER DEDUCTION.  HAD SATISFACTION OF
THE CLAIM COME TO HIM WITHOUT ANY CONDUIT, IT WOULD HAVE INDISPUTABLY
BEEN HIS INCOME.  THE CLAIM HAVING BEEN RECOGNIZED BY LAY AND CAST INTO
A FORM REALIZABLE BY GRIFFITHS, A LAWYER'S INGENUITY DEVISED A
TECHNICALLY ELEGANT ARRANGEMENT WHEREBY AN INTRICATE OUTWARD APPEARANCE
WAS GIVEN TO THE SIMPLE SALE FROM GRIFFITHS TO LAY AND THE PASSAGE OF
MONEY FROM LAY TO GRIFFITHS.  THAT WAS THE CRUX OF THE BUSINESS TO
GRIFFITHS, AND THAT IS THE CRUX OF THE BUSINESS TO US. 

WE CANNOT TOO OFTEN REITERATE THAT "TAXATION IS NOT SO MUCH CONCERNED
WITH THE REFINEMENTS OF TITLE AS IT IS WITH ACTUAL COMMAND OVER THE
PROPERTY TAXED - THE ACTUAL BENEFIT FOR WHICH THE TAX IS PAID." 
CORLISS V. BOWERS, 281 U.S. 376, 378.  AND IT MAKES NO DIFFERENCE THAT
SUCH "COMMAND" MAY BE EXERCISED THROUGH SPECIFIC RETENTION OF LEGAL
TITLE OR THE CREATION OF A NEW EQUITABLE BUT CONTROLLED INTEREST, OR
THE MAINTENANCE OF EFFECTIVE BENEFIT THROUGH THE INTERPOSITION OF A
SUBSERVIENT AGENCY.  CF. GREGORY V. HELVERING, 293 U.S. 465.  "A GIVEN
RESULT AT THE END OF A STRAIGHT PATH," THIS COURT SAID IN MINNESOTA TEA
CO. V. HELVERING, 302 U.S. 609, 613, "IS NOT MADE A DIFFERENT RESULT
BECAUSE REACHED BY FOLLOWING A DEVIOUS PATH."  LEGISLATIVE WORDS ARE
NOT INERT, AND DERIVE VITALITY FROM THE OBVIOUS PURPOSES AT WHICH THEY
ARE AIMED, PARTICULARLY IN THE PROVISIONS OF A TAX LAW LIKE THOSE
GOVERNING INSTALLMENT SALES IN SEC. 44 OF THE REVENUE ACT OF 1932. 
TAXES CANNOT BE ESCAPED "BY ANTICIPATORY ARRANGEMENTS AND CONTRACTS
HOWEVER SKILFULLY DEVISED  ...  BY WHICH THE FRUITS ARE ATTRIBUTED TO A
DIFFERENT TREE FROM THAT ON WHICH THEY GREW."  LUCAS V. EARL, 281 U.S.
111, 115.  WHAT LAY GAVE, GRIFFITHS IN REALITY GOT, AND ON THAT HE MUST
BE TAXED. 

THE JUDGMENT IS AFFIRMED. 

FN1  OF THE TOTAL SUM PAID, $15,000 WAS TO BE APPLIED BY THE
CORPORATION IN PAYMENT OF A PERSONAL INDEBTEDNESS OWED BY GRIFFITHS. 
THIS SUM, OF COURSE, WAS CLEARLY INCOME TO PETITIONER.  THE REMAINDER
WAS TO BE PAID IN INSTALLMENTS BY THE CORPORATION TO GRIFFITHS. 
PETITIONER CONTENDS THAT THESE INSTALLMENTS ALONE ARE TAXABLE TO HIM AS
THEY ARE PAID, UNDER THE PROVISIONS OF SEC. 44 OF THE REVENUE ACT OF
1932, C. 209, 47 STAT. 169. 
..END :













BUCKSTAFF CO. V. MCKINLEY, 308 U.S. 358 


NO. 201.  SUBMITTED DECEMBER 4, 1939.  - DECIDED DECEMBER 18, 1939.  -
198 ARK. 91 - 127 S.W.2D 802, AFFIRMED. 


AN ARKANSAS CORPORATION, ORGANIZED FOR PROFIT AND HAVING ITS ONLY
PLACE OF BUSINESS WITHIN THE GOVERNMENT RESERVATION KNOWN AS HOT
SPRINGS NATIONAL PARK, MAINTAINED AND OPERATED, UNDER A LONG TERM LEASE
FROM THE SECRETARY OF THE INTERIOR, A BATH HOUSE, WHICH IT ERECTED AND
EQUIPPED.  THE OPERATION AND USE OF THE BATH HOUSE FACILITIES WERE
SUBJECT TO REGULATIONS PROMULGATED BY THE DEPARTMENT OF THE INTERIOR. 
THE CORPORATION HAD MORE THAN EIGHT PERSONS IN ITS EMPLOY.  HELD: 

1.  THE CORPORATION WAS NOT AN "INSTRUMENTALITY OF THE UNITED STATES"
WITHIN THE MEANING OF THE FEDERAL SOCIAL SECURITY ACT; AND WAS NOT,
UNDER SEC. 907, EXEMPT FROM THE TAX IMPOSED BY THAT ACT.  P. 362. 

2.  THE CORPORATION WAS SUBJECT TO THE TAX IMPOSED BY THE ARKANSAS
UNEMPLOYMENT COMPENSATION LAW - A LAW RECIPROCAL TO, AND INTEGRATED
WITH, THE FEDERAL SOCIAL SECURITY ACT.  P. 363. 

3.  THAT ARKANSAS WAS AUTHORIZED BY CONGRESS TO IMPOSE THE TAX IS
IMPLIED FROM THE FACT THAT THE CORPORATION IS SUBJECT TO THE FEDERAL
TAX AND FROM THE DESIGN OF THE FEDERAL ACT TO PROVIDE A COOPERATIVE
SYSTEM OF STATE AND FEDERAL TAXATION FOR SOCIAL SECURITY, IN WHICH THE
STATES WERE IN EFFECT INVITED TO TAX THE SAME CLASSES OF EMPLOYERS AS
ARE TAXED UNDER THE FEDERAL ACT.  P. 364. 

IN THE ABSENCE OF ANY DECLARATION TO THE CONTRARY, IT IS A FAIR
PRESUMPTION SEMBLE THAT THE PURPOSE OF CONGRESS WAS TO HAVE THE STATE
LAW CLOSELY COTERMINOUS WITH ITS OWN. 

4. THE AUTHORITY OF ARKANSAS TO IMPOSE THE TAX IN QUESTION IS MERELY
AN EXTENSION OF THE POWER TO TAX AS PERSONAL PROPERTY ALL STRUCTURES
AND OTHER PROPERTY IN PRIVATE OWNERSHIP ON THE RESERVATION, CONFERRED
BY THE ACT OF MARCH 3, 1891.  PP. 364-365. 

BUCKSTAFF BATH HOUSE CO. V. MCKINLEY, COMMISSIONER OF THE DEPARTMENT
OF LABOR OF ARKANSAS, ET AL. 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS. 

CERTIORARI, POST, P. 508, TO REVIEW THE AFFIRMANCE BY THE STATE
SUPREME COURT OF A DECREE OF THE LOWER STATE COURT WHICH SUSTAINED A
DEMURRER TO AND DISMISSED A BILL TO ENJOIN THE COLLECTION OF A TAX
IMPOSED UNDER THE ARKANSAS UNEMPLOYMENT COMPENSATION LAW. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

EXCISE TAX, EQUAL TO SPECIFIED PERCENTAGES OF TOTAL WAGES PAID, ON
"EVERY EMPLOYER" OF EIGHT OR MORE PERSONS WITH RESPECT TO THEIR
"EMPLOYMENT."  BY SEC. 902 THE TAXPAYER MAY CREDIT AGAINST THIS TAX THE
AMOUNT OF CONTRIBUTIONS PAID BY HIM INTO AN UNEMPLOYMENT FUND UNDER A
STATE LAW, SUCH CREDIT HOWEVER NOT TO EXCEED 90 PERCENT OF THE TAX AND
TO BE ALLOWED ONLY FOR CONTRIBUTIONS MADE UNDER THE LAWS OF STATES
APPROVED AND CERTIFIED BY THE SOCIAL SECURITY BOARD IN ACCORDANCE WITH
THE STANDARDS PRESCRIBED IN SEC. 903.  BY SEC. 907 THE TERM
"EMPLOYMENT" IS DEFINED TO MEAN "ANY SERVICE, OF WHATEVER NATURE,
PERFORMED WITHIN THE UNITED STATES BY AN EMPLOYEE FOR HIS EMPLOYER"
EXCEPT, INTER ALIA, SERVICE PERFORMED "IN THE EMPLOY OF THE UNITED
STATES GOVERNMENT OR OF AN INSTRUMENTALITY OF THE UNITED STATES." 

PETITIONER IS AN ARKANSAS CORPORATION, ORGANIZED FOR PROFIT AND WITH
ITS ONLY PLACE OF BUSINESS SITUATED ON THE UNITED STATES GOVERNMENT
RESERVATION KNOWN AS HOT SPRINGS NATIONAL PARK.  IT OPERATES A BATH
HOUSE, WHICH IT ERECTED AND EQUIPPED, UNDER A LONG TERM LEASE FROM THE
SECRETARY OF THE INTERIOR.  BY THE TERMS OF THAT LEASE THE OPERATION
AND USE OF THE BATH HOUSE FACILITIES ARE SUBJECT TO CERTAIN CONTROL BY
THE DEPARTMENT OF THE INTERIOR, WHICH IN THE MAIN RELATE TO THE NUMBER
OF BATH TUBS WHICH MAY BE USED, THE CHARGES TO THE PUBLIC, THE
QUALIFICATIONS OF EMPLOYEES, THE MAINTENANCE AND CARE OF THE PREMISES,
A PROHIBITION OF EMPLOYMENT OF AGENTS TO SOLICIT PATRONAGE, AND CONTROL
OVER AN ASSIGNMENT OR TRANSFER OF THE LEASE OR ANY INTEREST THEREIN. 

RESPONDENTS ARE OFFICIALS OF THE STATE OF ARKANSAS CHARGED WITH THE
DUTY OF ENFORCEMENT OF THE ARKANSAS UNEMPLOYMENT COMPENSATION LAW,  FN1
AN ACT RECIPROCAL TO, AND INTEGRATED WITH, THE SOCIAL SECURITY ACT. 
FN2  PURSUANT TO THAT ACT RESPONDENTS SOUGHT TO COLLECT FROM PETITIONER
AS AN EMPLOYER THE REQUIRED CONTRIBUTIONS FOR THE CALENDAR YEAR 1937. 
PETITIONER PAID INTO THE TREASURY OF THE UNITED STATES THE TAX REQUIRED
BY THE SOCIAL SECURITY ACT FOR THAT PERIOD.  BUT IT REFUSED TO PAY THE
STATE TAX AND SUED IN THE STATE COURT TO ENJOIN ITS COLLECTION ON THE
GROUNDS, INTER ALIA, THAT IT IS AN INSTRUMENTALITY OF THE UNITED STATES
AND THAT CERTAIN ACTS OF CONGRESS AND STATUTES OF ARKANSAS EXEMPT IT
FROM SUCH TAXATION.  THE SUPREME COURT OF ARKANSAS AFFIRMED A DECREE
SUSTAINING A DEMURRER TO THE BILL AND DISMISSING IT, ON THE GROUNDS
THAT THE ARKANSAS STATUTE WAS APPLICABLE TO PETITIONER AND THAT, ON
CONSTRUCTION OF THE ACTS IN QUESTION, PETITIONER DID NOT HAVE THE
CLAIMED IMMUNITY.  WE GRANTED CERTIORARI BECAUSE THAT DECISION WAS
ASSERTED TO BE REPUGNANT TO THE ACTS VESTING EXCLUSIVE JURISDICTION
OVER THE HOT SPRINGS RESERVATION IN THE UNITED STATES. 

PETITIONER'S CONTENTION HERE, AS BELOW, IS BASED PRIMARILY ON THE ACT
OF CONGRESS OF MARCH 3, 1891(26 STAT. 842) WHEREBY THE CONSENT OF THE
UNITED STATES WAS GIVEN "FOR THE TAXATION, UNDER THE AUTHORITY OF THE
LAWS OF THE STATE OF ARKANSAS APPLICABLE TO THE EQUAL TAXATION OF
PERSONAL PROPERTY IN THAT STATE, AS PERSONAL PROPERTY, OF ALL
STRUCTURES AND OTHER PROPERTY IN PRIVATE OWNERSHIP ON THE HOT SPRINGS
RESERVATION."  FN3  PETITIONER POINTS OUT THAT THE TAX IMPOSED BY THE
SOCIAL SECURITY ACT AGAINST WHICH APPROPRIATE CREDITS MAY BE MADE FOR
CONTRIBUTIONS UNDER STATE LAWS IS LAID, AS STATED BY THIS COURT IN
STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 578, "AS A DUTY, AN IMPOST
OR AN EXCISE UPON THE RELATION OF EMPLOYMENT"; AND THAT AS HELD BY THE
SUPREME COURT OF ARKANSAS THE TAX IN QUESTION IS "NOT A TAX ON PERSONAL
PROPERTY; NOR IS IT, IN ANY SENSE, A PROPERTY TAX."  THEREFORE,
PETITIONER CONCLUDES THAT THE UNITED STATES DID NOT CONFER ON THE STATE
OF ARKANSAS THE POWER TO IMPOSE SUCH A TAX BUT RETAINS ITS SOVEREIGN
JURISDICTION IN THAT REGARD SINCE THE POWER OF ARKANSAS TO TAX WAS
LIMITED TO THE ENUMERATED PROPERTY TAXES. 

WE AGREE WITH THE SUPREME COURT OF ARKANSAS THAT THE STATE HAD
JURISDICTION TO IMPOSE THE TAX IN QUESTION. 

THERE CAN BE NO QUESTION BUT THAT PETITIONER IS LIABLE FOR THE TAX
LEVIED BY SEC. 901 OF THE SOCIAL SECURITY ACT, UNLESS IT IS EXEMPTED BY
THAT PORTION OF SEC. 907 WHICH RELIEVES "AN INSTRUMENTALITY OF THE
UNITED STATES" FROM THAT DUTY.  BUT IT SEEMS CLEAR THAT PETITIONER IS
NOT, WITHIN THE MEANING OF THE SOCIAL SECURITY ACT, SUCH AN
INSTRUMENTALITY.  THE MERE FACT THAT A PRIVATE CORPORATION CONDUCTS ITS
BUSINESS UNDER A CONTRACT WITH THE UNITED STATES DOES NOT MAKE IT AN
INSTRUMENTALITY OF THE LATTER.  FIDELITY & DEPOSIT CO. V. PENNSYLVANIA,
240 U.S. 319.  PETITIONER'S LEASE FROM THE SECRETARY OF THE INTERIOR
DID NOT CONVERT IT INTO SUCH AN INSTRUMENTALITY.  PETITIONER "IS
ENGAGED IN ITS OWN BEHALF, NOT THE GOVERNMENT'S, IN THE CONDUCT OF A
PRIVATE BUSINESS FOR PROFIT."  SEE FEDERAL COMPRESS & WAREHOUSE CO. V.
MCLEAN, 291 U.S. 17, 23.  THOUGH IT ACTS WITH THE GOVERNMENT'S
PERMISSION AND HAS RECEIVED A PRIVILEGE FROM THE GOVERNMENT, IT DOES
NOT EXERCISE THAT PRIVILEGE ON BEHALF OF THE LATTER.  SEE BROAD RIVER
POWER CO. V. QUERY, 288 U.S. 178, 180.  THE CONTROL RESERVED BY THE
GOVERNMENT FOR PROTECTION OF A GOVERNMENTAL PROGRAM AND THE PUBLIC
INTEREST IS NOT INCOMPATIBLE WITH THE RETENTION OF THE STATUS OF A
PRIVATE ENTERPRISE.  SEE FEDERAL COMPRESS & WAREHOUSE CO. V. MCLEAN,
SUPRA.  THAT CONTROL, BEING WHOLLY SUPERVISORY, IS NOT TO BE
DIFFERENTIATED FROM THE TYPE OF CONTROL WHICH THE UNITED STATES MAY
RESERVE OVER ANY INDEPENDENT CONTRACTOR WITHOUT TRANSFORMING HIM INTO
ITS INSTRUMENTALITY.  SEE JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134,
149.  IN EFFECT, PETITIONER CONCEDES THE POINT BY ADMITTING ITS
LIABILITY UNDER THE SOCIAL SECURITY ACT. 

THAT PETITIONER IS SUBJECT TO THE SOCIAL SECURITY ACT IS EXTREMELY
RELEVANT TO THE SOLUTION OF THE PROBLEM AT HAND.  FOR THAT ACT LAID THE
FOUNDATION FOR A COOPERATIVE ENDEAVOR BETWEEN THE STATES AND THE NATION
TO MEET A GRAVE EMERGENCY PROBLEM.  AS POINTED OUT BY THIS COURT IN
STEWARD MACHINE CO. V. DAVIS, SUPRA, P. 588, THAT ACT WAS AN ATTEMPT TO
FIND A METHOD BY WHICH THE STATES AND THE FEDERAL GOVERNMENT COULD
"WORK TOGETHER TO A COMMON END."  PRIOR THERETO MANY STATES HAD "HELD
BACK THROUGH ALARM LEST, IN LAYING SUCH A TOLL UPON THEIR INDUSTRIES,
THEY WOULD PLACE THEMSELVES IN A POSITION OF ECONOMIC DISADVANTAGE AS
COMPARED WITH NEIGHBORS OR COMPETITORS," ID., P. 588.  THE ACT WAS
DESIGNED THEREFORE TO OPERATE IN A DUAL FASHION - STATE LAWS WERE TO BE
INTEGRATED WITH THE FEDERAL ACT; PAYMENTS UNDER STATE LAWS COULD BE
CREDITED AGAINST LIABILITIES UNDER THE OTHER.  THAT IT WAS DESIGNED SO
AS TO BRING THE STATES INTO THE COOPERATIVE VENTURE IS CLEAR.  THE FACT
THAT IT WOULD OPERATE THOUGH THE STATES DID NOT COME IN DOES NOT ALTER
THE FACT THAT THERE WERE GREAT PRACTICAL INDUCEMENTS FOR THE STATES TO
BECOME COMPONENTS OF A UNITARY PLAN FOR UNEMPLOYMENT RELIEF.  IT IS
THIS INVITATION BY THE CONGRESS TO THE STATES WHICH IS OF IMPORTANCE TO
THE ISSUE IN THIS CASE.  FOR CERTAINLY, UNDER THE COORDINATED SCHEME
WHICH THE ACT VISUALIZES, WHEN CONGRESS BROUGHT WITHIN ITS SCOPE
VARIOUS CLASSES OF EMPLOYERS IT IN PRACTICAL EFFECT INVITED THE STATES
TO TAX THE SAME CLASSES.  HENCE, IF THERE WERE ANY DOUBT AS TO THE
JURISDICTION OF THE STATES TO TAX ANY OF THOSE CLASSES IT MIGHT WELL BE
REMOVED BY THAT INVITATION, FOR IN ABSENCE OF A DECLARATION TO THE
CONTRARY, IT WOULD SEEM TO BE A FAIR PRESUMPTION THAT THE PURPOSE OF
CONGRESS WAS TO HAVE THE STATE LAW AS CLOSELY COTERMINOUS AS POSSIBLE
WITH ITS OWN.  TO THE EXTENT THAT IT WAS NOT, THE HOPES FOR A
COORDINATED AND INTEGRATED DUAL SYSTEM WOULD NOT MATERIALIZE. 

HENCE, IT IS OUR VIEW THAT ON THE FACTS OF THIS CASE, CONGRESS HAS
GIVEN ARKANSAS IMPLIED AUTHORITY TO TAX PETITIONER UNDER ITS
UNEMPLOYMENT COMPENSATION LAW SINCE THE CONGRESS HAS INCLUDED UNDER THE
SOCIAL SECURITY ACT EMPLOYERS SUCH AS PETITIONER.  CLEAR EVIDENCE OF A
CONTRARY INTENTION WOULD, OF COURSE, NEGATIVE THE EXISTENCE OF THE
IMPLIED AUTHORITY.  BUT HERE THERE IS NONE.  THAT CONCLUSION IS
STRENGTHENED BY THE EXEMPTION OF CERTAIN CLASSES OF EMPLOYERS FROM THE
SWEEP OF THE FEDERAL ACT.  THUS, THE EXCLUSION OF FEDERAL
INSTRUMENTALITIES FROM THE SCOPE OF THE FEDERAL ACT, AND HENCE FROM THE
COMPLEMENTARY STATE SYSTEMS, EMPHASIZES THE PURPOSE TO EXCLUDE FROM
THIS STATUTORY SYSTEM ONLY THAT WELL DEFINED AND WELL KNOWN CLASS OF
EMPLOYERS WHO HAVE LONG ENJOYED IMMUNITY FROM STATE TAXATION.  HAD IT
BEEN DESIRED TO EXEMPT THE EQUALLY WELL KNOWN CLASS, OF WHICH
PETITIONER IS A MEMBER, SO AS TO SAVE IT FROM RECIPROCAL STATE SYSTEMS,
IT WOULD SEEM THAT AN EQUALLY CLEAR EXCEPTION WOULD HAVE BEEN MADE. 

WHETHER THE SAME RESULT WOULD FOLLOW IN CASE THE CESSION ACT HAD
ABSOLUTELY FORBIDDEN A STATE TO IMPOSE ANY TAX ON PETITIONER WE NEED
NOT DECIDE.  FOR HERE ARKANSAS DID HAVE A PRIOR EXPRESS POWER TO TAX
PETITIONER'S PROPERTY.  THE IMPLIED AUTHORITY WHICH WE HERE FIND TO
EXIST IS THEREFORE USED NOT TO OVERRIDE AN EARLIER EXPRESS AUTHORITY
BUT MERELY TO EXTEND IT TO A DEGREE.  FOR IN FINAL ANALYSIS THE
ARKANSAS TAX DOES HAVE SOME RELATION TO THE USE OF PETITIONER'S
PROPERTY.  THE EXISTENCE OF THE IMPLIED AUTHORITY DOES NOT THEREFORE DO
VIOLENCE TO THE EARLIER STATUTORY GRANT.  AFFIRMED. 

FN1  ACT NO. 155, APPROVED FEBRUARY 26, 1937; POPE'S DIGEST, SECS.
8549 ET SEQ. 

FN2  THE ARKANSAS UNEMPLOYMENT COMPENSATION LAW WAS CERTIFIED AND
APPROVED BY THE SOCIAL SECURITY BOARD UNDER SEC. 903 ON MARCH 9, 1937. 
SEE THIRD ANNUAL REPORT OF THE SOCIAL SECURITY BOARD, 1938, P. 175. 

FN3  THE CESSION ACT OF ARKANSAS WAS ACT NO. 30, APPROVED FEBRUARY
21, 1903.  IT "CEDED AND GRANTED" TO THE UNITED STATES "EXCLUSIVE
JURISDICTION" OVER THE AREA IN QUESTION "TO BE EXERCISED SO LONG AS THE
SAME SHALL REMAIN THE PROPERTY OF THE UNITED STATES; PROVIDED, THAT
THIS GRANT OF JURISDICTION SHALL NOT PREVENT THE EXECUTION OF ANY
PROCESS OF THE STATE, CIVIL OR CRIMINAL, ON ANY PERSON WHO MAY BE ON
SUCH RESERVATION OR PREMISES; PROVIDED, FURTHER, THAT THE RIGHT TO TAX
ALL STRUCTURES AND OTHER PROPERTY IN PRIVATE OWNERSHIP ON THE HOT
SPRINGS RESERVATION ACCORDED THE STATE BY THE ACT OF CONGRESS APPROVED
MARCH 3, 1901, IS HEREBY RESERVED TO THE STATE OF ARKANSAS."  THIS
CESSION WAS ACCEPTED BY THE ACT OF CONGRESS OF APRIL 20, 1904(33 STAT.
187).  AS TO ARKANSAS' ASSERTED RIGHT TO TAX PROPERTY IN THE
RESERVATION PRIOR TO THE ACT OF CONGRESS OF MARCH 3, 1891, SEE EX PARTE
GAINES, 56 ARK. 227. 

FOR EARLIER ACTS OF CONGRESS DEALING WITH THE RIGHTS OF THE UNITED
STATES TO THE HOT SPRINGS RESERVATION SEE 4 STAT. 505; 20 STAT. 258. 
THE EARLY HISTORY OF CONFLICTING CLAIMS TO THESE HOT SPRINGS IS
REVIEWED IN THE HOT SPRINGS CASES, 92 U.S. 698.  SEE ALSO ARLINGTON
HOTEL CO. V. FANT, 278 U.S. 439. 

MR. JUSTICE REED CONCURS ON THE GROUND THAT THE ACT OF CONGRESS OF
MARCH 3, 1891(26 STAT. 842) IN WHICH THE UNITED STATES CONSENTED "FOR
THE TAXATION  ...  AS PERSONAL PROPERTY, OF ALL STRUCTURES AND OTHER
PROPERTY IN PRIVATE OWNERSHIP ON THE HOT SPRINGS RESERVATION," SHOULD
BE INTERPRETED TO GIVE CONSENT TO THE APPLICATION OF THE ARKANSAS
UNEMPLOYMENT COMPENSATION LAW.  COLLINS V. YOSEMITE PARK & CURRY CO.,
304 U.S. 518, 532, 534. 
..END :



















HELIS V. WARD, 308 U.S. 365 


NO. 68.  ARGUED DECEMBER 6, 1939.  - DECIDED DECEMBER 18, 1939.  - 102
F.2D 519, AFFIRMED. 


1.  IN A SUIT IN EQUITY FOR SPECIFIC PERFORMANCE OF A CONTRACT TO
PURCHASE AN OIL LEASE, THE ISSUE WAS WHETHER A GREATER SUM THAN HAD
BEEN PAID WAS DUE, AND THE DECISIVE QUESTION WAS WHETHER A PARTICULAR
WELL WOULD PRODUCE 3,000 BARRELS OF OIL PER DAY.  AN UMPIRE'S REPORT,
BASED ON TESTS MADE IN ACCORDANCE WITH THE CONTRACT, AND ADMITTED IN
EVIDENCE WITHOUT OBJECTION, SHOWED THAT THE WELL WOULD NOT PRODUCE THAT
QUANTITY OF OIL THROUGH A 3/8 INCH CHOKE, BUT WOULD PRODUCE IN EXCESS
OF THAT QUANTITY ON OPEN FLOW.  INTERPRETING THE CONTRACT TO MEAN THAT
THE TEST WAS AS TO THE QUANTITY THE WELL WOULD PRODUCE THROUGH A 3/8
INCH CHOKE, THE DISTRICT COURT GAVE JUDGMENT FOR THE DEFENDANT.  THE
CIRCUIT COURT OF APPEALS, INTERPRETING THE CONTRACT TO MEAN THAT THE
TEST WAS WHAT THE WELL WOULD PRODUCE ON OPEN FLOW, REVERSED THE
DISTRICT COURT AND DIRECTED ENTRY OF JUDGMENT FOR THE PLAINTIFF.  HELD,
THAT THE FAILURE OF THE CIRCUIT COURT OF APPEALS TO REMAND THE CASE FOR
A NEW TRIAL DID NOT DEPRIVE THE DEFENDANT OF HIS DAY IN COURT IN
VIOLATION OF THE FIFTH AMENDMENT.  SAUNDERS V. SHAW, 244 U.S. 317,
DISTINGUISHED.  P. 369. 

2.  THE DEFENDANT IS NOT ENTITLED HERE TO URGE THAT A NEW TRIAL
SHOULD BE ALLOWED IN ORDER THAT HE MAY ATTACK THE COMPETENCY AND
ACCURACY OF THE UMPIRE'S REPORT, WHEN THAT POINT WAS NOT A GROUND
EITHER OF HIS PETITION TO THE CIRCUIT COURT OF APPEALS FOR REHEARING OR
OF HIS PETITION HERE FOR CERTIORARI.  P. 369. 

3.  REVIEW BY CERTIORARI IN THIS COURT IS CONFINED TO THE GROUNDS
UPON WHICH THE WRIT WAS SOUGHT OR GRANTED.  P. 370. 

HELIS V. WARD, EXECUTRIX, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 537, TO REVIEW THE REVERSAL OF A JUDGMENT, 20
F.SUPP.  514, DISMISSING A SUIT UPON A CONTRACT. 

WHEN A LITIGANT OBJECTS TO THE INTRODUCTION OF EVIDENCE AND THE
OBJECTION IS SUSTAINED HE MAY RELY UPON SUCH RULING.  HE NEED NOT
INTRODUCE EVIDENCE TO REFUTE A POINT WHICH THE TRIAL COURT UPON HIS
OBJECTION HAS RULED TO BE IRRELEVANT AND NOT INVOLVED IN THE
LITIGATION.  A LITIGANT IS DEPRIVED OF HIS DAY IN COURT AND OF DUE
PROCESS OF LAW WHEN A COURT, EITHER TRIAL OR APPELLATE, DECIDES A CASE
AGAINST HIM UPON A POINT WHICH HE HAS NOT TRIED BECAUSE OF JUSTIFIABLE
RELIANCE UPON A RULING OF THE TRIAL JUDGE. 

THE REAL ISSUE IN THIS CASE HAS NEVER BEEN LITIGATED.  THE TRIAL
JUDGE EXCLUDED ALL EVIDENCE EXCEPT THAT RELATING TO A PARTICULAR POINT
OR ISSUE, AND THAT POINT OR ISSUE HAS BEEN DECLARED BY THE APPELLATE
COURT TO BE IMMATERIAL TO THE DETERMINATION OF THE CONTROVERSY.  SEE
LUTCHER & MOORE LUMBER CO. V. KNIGHT, 217 U.S. 256, 267; SAUNDERS V.
SHAW, 244 U.S. 317; COLLINS V. YOSEMITE PARK & CURRY CO., 304 U.S. 518;
UNITED STATES V. RIO GRANDE DAM & IRRIGATION CO., 184 U.S. 416; WILLING
V. BINENSTOCK, 302 U.S. 272; ERIE R. CO. V. TOMPKINS, 304 U.S. 64;
FIFTH THIRD NATIONAL BANK V. JOHNSON, 219 F. 89; COLUMBUS GAS & FUEL
CO. V. CITY OF COLUMBUS, 55 F.2D 56; FAULKS V. SCHRIDER, 90 F.2D 370;
HUGHES V. REED, 46 F.2D 435; WILSON V. SPENCER, 261 F. 357; UNDERWOOD
V. COMMISSIONER, 56 F.2D 67; FINEFROCK V. KENOVA MINE CAR CO., 22 F.2D
627; HAMILTON GAS CO. V. WATTERS, 75 F.2D 176. 

PETITIONER BELIEVES HE HAS AN ADEQUATE DEFENSE AND IS CONFIDENT THAT
A RETRIAL OF THIS CAUSE ON THE THEORY ANNOUNCED BY THE CIRCUIT COURT OF
APPEALS WILL RESULT IN JUDGMENT BEING AGAIN RENDERED IN HIS FAVOR. 

THE EVIDENCE RELIED UPON BY THE APPELLATE COURT FOR RENDERING
JUDGMENT HEREIN IS THE WRITTEN REPORT OF A PETROLEUM ENGINEER AND THE
WRITTEN REPORT OF AN EMPLOYEE OF RESPONDENTS.  NEITHER OF THESE REPORTS
WAS OFFERED AS EVIDENCE UPON THE TRIAL AND THEY ARE IN THE RECORD
BECAUSE CONSTITUTING EXHIBITS ANNEXED TO PETITIONER'S PLEADING.  BOTH
REPORTS WOULD, HOWEVER, HAVE BEEN RELEVANT BECAUSE OF DEALING IN PART
WITH TESTS WHICH THE TRIAL COURT RULED TO BE PROPERLY THE SUBJECT OF
PROOF. 

IF THESE REPORTS HAD BEEN OFFERED IN EVIDENCE AND IF THEIR CONTENTS
HAD BEEN RULED RELEVANT TO THE ISSUES PETITIONER WOULD HAVE SHOWN THAT
THEY WERE WORTHLESS IN THAT THE CONCLUSIONS OR OPINIONS EXPRESSED
THEREIN WERE FOUNDED ON ERRORS APPARENT UPON THE FACE OF THE REPORTS. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR SPECIFIC PERFORMANCE OF A CONTRACT TO PURCHASE A
MINERAL LEASE BROUGHT BY RESPONDENTS, AS VENDORS.  THE CONTRACT PRICE
WAS TO BE DETERMINED PURSUANT TO A FORMULA BASED UPON THE PRODUCTION OF
CERTAIN DESIGNATED WELLS ON THE PROPERTY.  THAT PRICE WAS FIXED AT
$300,000 "IF THE AVERAGE DAILY PRODUCTION OF SAID WELLS FOR A PERIOD OF
FIFTEEN DAYS AFTER COMPLETION IS LESS THAN 3,000 BARRELS EACH,
CALCULATED ON A 3/8-INCH CHOKE ACCORDING TO THE METHODS USUALLY
EMPLOYED IN GAUGING THE CAPACITY OF OIL WELLS."  IN CASE THE
PRODUCTION, CALCULATED IN THAT MANNER, WAS MORE THAN 3,000 BARRELS PER
DAY, THE PURCHASE PRICE WAS FIXED AT $400,000.  THE TEST WAS TO BE MADE
JOINTLY BY A REPRESENTATIVE OF RESPONDENTS AND A REPRESENTATIVE OF
PETITIONER; AND "IN THE EVENT THEY FAIL TO AGREE ON THE PROPER GAUGE,"
IT WAS PROVIDED THAT "JUDGE HARDIN  ...  WILL APPOINT A REPUTABLE
ENGINEER TO ACT AS UMPIRE." 

THE PARTIES FAILED TO AGREE ON THE PROPER GAUGE AND JUDGE HARDIN
APPOINTED W. L. MASSEY, A PETROLEUM ENGINEER, TO MAKE THE TEST.  FN1
MASSEY CONDUCTED A TEST AND SUBMITTED A WRITTEN REPORT, WHICH WITHOUT
OBJECTION WAS ADMITTED AT THE TRIAL.  THAT REPORT STATED THAT ALTHOUGH
"THE WELL WILL NOT MAKE 3,000 BARRELS PER DAY ON SUCH 3/8-INCH CHOKE,"
IT WAS "CAPABLE OF FLOWING MERCHANTABLE OIL AT A RATE MUCH IN EXCESS OF
3,000 BARRELS OF OIL PER DAY ON AN OPEN FLOW, OR THROUGH ANY CHOKE
LARGER THAN A 5/8-INCH CHOKE."  AT THE TRIAL THERE WAS OTHER TESTIMONY
THAT THE PRODUCTION "THROUGH A 3/8-INCH CHOKE" WAS NOT MORE THAN 3,000
BARRELS A DAY.  THE TRIAL COURT HELD THAT THE CONTRACT MEANT THAT THE
WELL WAS TO BE FLOWED THROUGH A 3/8-INCH CHOKE.  ACCORDINGLY IT
DISMISSED THE BILL, SINCE ON THAT INTERPRETATION IT WAS CLEAR THAT THE
PRODUCTION WAS NOT MORE THAN 3,000 BARRELS A DAY AND SINCE PETITIONER
ALREADY HAD PAID $300,000.  ON APPEAL, THE CIRCUIT COURT OF APPEALS
HELD THAT THE TEST PROVIDED IN THE CONTRACT "WAS NOT TO MEASURE THE
PRODUCTION THROUGH A 3/8-INCH CHOKE, BUT TO CALCULATE ON A 3/8-INCH
CHOKE THE AMOUNT THE WELL WAS CAPABLE OF PRODUCING."  IT THEN TURNED TO
THE RECORD AND ASCERTAINED THAT MASSEY, THE UMPIRE APPOINTED PURSUANT
TO THE AGREEMENT OF THE PARTIES, HAD FOUND THAT BY USING THE 3/8-INCH
CHOKE AS A BASE AND "BUILDING UP THEREFROM BY USING OTHER CHOKES TO
DETERMINE PRESSURES AND CONDITIONS" THE WELL WAS CAPABLE OF PRODUCING
MUCH IN EXCESS OF 3,000 BARRELS OF OIL PER DAY.  SINCE THAT CALCULATION
BY MASSEY WAS CONSISTENT WITH THE CIRCUIT COURT OF APPEALS'
INTERPRETATION OF THE FORMULA IN THE CONTRACT, THAT COURT CONCLUDED
THAT PETITIONER WAS LIABLE TO PAY THE HIGHER AMOUNT PROVIDED IN THE
CONTRACT, $400,000.  IT ACCORDINGLY REVERSED THE JUDGMENT DIRECTING THE
DISTRICT COURT TO ENTER JUDGMENT FOR RESPONDENTS FOR $100,000, THE
BALANCE DUE UNDER THE CONTRACT, WITH INTEREST.  WE GRANTED CERTIORARI,
LIMITED TO THE QUESTION WHETHER A NEW TRIAL SHOULD NOT HAVE BEEN
GRANTED, ON THE ASSERTION THAT THE FAILURE TO REMAND FOR A NEW TRIAL
DEPRIVED PETITIONER OF HIS DAY IN COURT IN VIOLATION OF THE RULE OF
SAUNDERS V. SHAW, 244 U.S. 317. 

WE CONCLUDE THAT THE CIRCUIT COURT OF APPEALS COMMITTED NO ERROR. 

THE FACT THAT THE CASE WAS TRIED BY THE DISTRICT COURT ON AN
INTERPRETATION OF THE CONTRACT DIFFERENT FROM THAT OF THE CIRCUIT COURT
OF APPEALS IS NOT PER SE SUFFICIENT TO CAUSE A REMAND FOR A NEW TRIAL
UNDER THE RULE OF SAUNDERS V. SHAW, SUPRA.  THE PRODUCTION OF THE WELL
WAS TESTED BY THE UMPIRE IN THE MANNER PROVIDED IN THE CONTRACT AND THE
RESULTS OF THAT TEST WERE WITHOUT OBJECTION ADMITTED AT THE TRIAL. 
COMPLETE ESTABLISHMENT OF THE FACTS NECESSARY FOR APPLICATION OF THE
FORMULA WAS THUS MADE IN THE MANNER PROVIDED BY THE PARTIES IN THEIR
CONTRACT.  TO BE SURE, PETITIONER NOW ASSERTS THAT ON A NEW TRIAL HE
WOULD ATTACK THE COMPETENCY AND ACCURACY OF THE UMPIRE'S REPORT -
MATTERS WHICH WERE IMMATERIAL TO THE ISSUES ON THE TRIAL IN VIEW OF THE
FACT THAT IT WAS NOT CONTESTED THAT NO MORE THAN 3,000 BARRELS OF OIL A
DAY COULD BE PRODUCED THROUGH A 3/8-INCH CHOKE.  BUT THE DIFFICULTY
WITH PETITIONER'S POSITION IS THAT HE HAS NOT PRESERVED THAT POINT.  ON
HIS PETITION FOR REHEARING TO THE CIRCUIT COURT OF APPEALS, PETITIONER
DID NOT ASK THAT COURT TO ALLOW HIM A NEW TRIAL IN ORDER TO ATTACK THE
UMPIRE'S REPORT.  FN2  NOR WAS THAT THE GROUND UPON WHICH THE PETITION
FOR CERTIORARI WAS PREDICATED.  FOR REVIEW BY THIS COURT WAS SOUGHT AND
GRANTED ON THE GROUND THAT THE CIRCUIT COURT OF APPEALS HAD DECIDED THE
MERITS ON FACTS NOT CONTAINED IN THE RECORD AND ON A THEORY WHICH HAD
NEVER BEEN TRIED BY THE LITIGANTS.  THERE WAS NO INTIMATION IN THE
PETITION FOR CERTIORARI THAT A NEW TRIAL SHOULD BE GRANTED IN ORDER TO
AFFORD PETITIONER AN OPPORTUNITY TO ATTACK THE COMPETENCY AND ACCURACY
OF THE UMPIRE'S REPORT.  IT IS WELL SETTLED THAT THIS COURT CONFINES
ITSELF TO THE GROUND UPON WHICH THE WRIT WAS ASKED OR GRANTED, THE
REVIEW HERE BEING NO BROADER THAN THAT SOUGHT BY THE PETITIONER.  CLARK
V. WILLIARD, 294 U.S. 211, 216; HELVERING V. TEX-PENN OIL CO., 300 U.S.
481, 498; WASHINGTON, V. & M. COACH CO. V. NATIONAL LABOR RELATIONS
BOARD, 301 U.S. 142, 146.  ACCORDINGLY, PETITIONER CANNOT NOW COMPLAIN
THAT HE HAS NOT HAD HIS DAY IN COURT AND HAS BEEN DEPRIVED OF DUE
PROCESS OF LAW CONTRARY TO THE FIFTH AMENDMENT.  DUE PROCESS OF LAW IS
NOT CONCERNED WITH MERE AFTERTHOUGHTS.  AFFIRMED. 

FN1  JUDGE HARDIN INSTRUCTED MASSEY:  "YOU ARE REQUESTED TO
DETERMINE, FIRST, THE ACTUAL PRODUCTION OF THREE-EIGHTS (3/8) CHOKE;
SECOND, BY USING THE THREE-EIGHTS (3/8) CHOKE YOU ARE TO CALCULATE THE
OPEN FLOW CAPACITY OF THE WELL." 

FN2  IN ADDITION TO ATTACKING THE INTERPRETATION OF THE CONTRACT BY
THE CIRCUIT COURT OF APPEALS, PETITIONER MERELY ASSERTED, "YOUR HONORS
HAVE ERRED IN PREDICATING YOUR OPINION UPON FACTS NOT CONTAINED IN THE
RECORD AND UPON FACTS WHICH ARE DISPROVED BY THE RECORD." 
..END :









WEISS V. UNITED STATES, 308 U.S. 321 


NO. 42.  ARGUED NOVEMBER 13, 14, 1939.  - DECIDED DECEMBER 11, 1939.  -
103 F.2D 348, REVERSED. 


1.  THE PROVISION OF SEC. 605 OF THE COMMUNICATIONS ACT OF 1934, THAT
"NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT ANY
COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE, CONTENTS,
SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH INTERCEPTED
COMMUNICATION TO ANY PERSON," APPLIES TO INTRASTATE AS WELL AS TO
INTERSTATE AND FOREIGN COMMUNICATIONS (OVER WIRES USED FOR BOTH KINDS),
AND BARS ADMISSION IN TRIALS IN THE FEDERAL COURTS OF EVIDENCE OBTAINED
BY INTERCEPTION OF SUCH INTRASTATE TELEPHONE COMMUNICATIONS.  P. 329. 

2.  AS CONGRESS HAS POWER, WHEN NECESSARY FOR THE PROTECTION OF
INTERSTATE COMMERCE, TO REGULATE INTRASTATE TRANSACTIONS, THERE IS NO
CONSTITUTIONAL REQUIREMENT THAT THE SCOPE OF THE STATUTE BE LIMITED SO
AS TO EXCLUDE INTRASTATE COMMUNICATIONS.  P. 327. 

3.  THE BROAD AND INCLUSIVE LANGUAGE OF THE SECOND CLAUSE OF SEC.
605, QUOTED SUPRA, IS NOT TO BE LIMITED BY CONSTRUCTION SO AS TO
EXCLUDE INTRASTATE COMMUNICATIONS FROM THE PROTECTION AGAINST
INTERCEPTION AND DIVULGENCE.  P. 329. 

4.  HELD:  EVIDENCE OF INTERCEPTED INTRASTATE TELEPHONE
COMMUNICATIONS WHICH HAD BEEN RECORDED BY STENOGRAPH AND PHONOGRAPH WAS
INADMISSIBLE IN A TRIAL IN THE FEDERAL COURT; AND IT WAS PREJUDICIAL
ERROR FOR THE COURT TO ADMIT SUCH EVIDENCE EITHER BY PERMITTING THE
PARTIES TO THE TELEPHONE CONVERSATION, WHO HAD TURNED STATE'S EVIDENCE,
TO READ THE STENOGRAPHIC TRANSCRIPT, OR BY ALLOWING THE PROSECUTOR TO
PUT THE STENOGRAPHIC TRANSCRIPTS AND PHONOGRAPH RECORDS IN EVIDENCE
UPON IDENTIFICATION BY THE PARTIES TO THE CONVERSATION.  THE DIVULGENCE
OF THE COMMUNICATIONS UNDER THE CIRCUMSTANCES HERE WAS NOT "AUTHORIZED
BY THE SENDER" WITHIN THE MEANING OF SEC. 605.  PP. 329, 331. 

WEISS ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 307 U.S. 621, TO REVIEW THE AFFIRMANCE OF CONVICTIONS AND
SENTENCES OF THE PETITIONERS UPON INDICTMENTS FOR USING THE MAILS TO
DEFRAUD AND FOR CONSPIRACY. 

THE COMMUNICATIONS ACT SHOWS ON ITS FACE THAT IT WAS INTENDED TO
APPLY ONLY TO INTERSTATE AND FOREIGN COMMUNICATIONS. 

NOR CAN IT BE ASSUMED THAT CONGRESS THOUGHT IT NECESSARY TO FORBID
THE DIVULGING OF INTRASTATE COMMUNICATIONS IN ORDER TO PROTECT THE
SECRECY OF INTERSTATE AND FOREIGN COMMUNICATIONS, FOR THERE IS NO
DIFFICULTY IN DEALING WITH EACH TYPE OF COMMUNICATIONS SEPARATELY. 
ALTHOUGH IT MIGHT BE SAID THAT INTERCEPTION OF INTERSTATE MESSAGES
COULD NOT EASILY BE PROHIBITED WITHOUT ALSO FORBIDDING INTERCEPTION OF
INTRASTATE MESSAGES PASSING OVER THE SAME LINES, IT IS CLEAR BOTH FROM
THE LANGUAGE USED AND THE LEGISLATIVE HISTORY THAT SEC. 605 DOES NOT
PROHIBIT INTERCEPTION PER SE BUT ONLY INTERCEPTION AND DIVULGING. 

PETITIONERS URGE THAT EVEN IF SEC. 605 DOES NOT OR CAN NOT FORBID THE
INTERCEPTION AND DIVULGING OF INTRASTATE MESSAGES, NEVERTHELESS THE
POLICY AGAINST WIRE-TAPPING SHOULD BE GIVEN EFFECT BY CONSTRUING THE
SUCH A VIEW EITHER IN THE STATUTE OR IN NARDONE V. UNITED STATES, 302
U.S. 379.  THAT DECISION MERELY GIVES EFFECT TO AN EXPRESS STATUTORY
PROHIBITION AGAINST CERTAIN DISCLOSURES.  IT IS EVIDENT FROM THE
OPINION THAT THIS COURT REGARDED THE STATUTE AS OPERATING ON THE
FEDERAL OFFICERS WHO WERE TESTIFYING, NOT ON THE TRIAL COURT IN THE
ADMISSION OF EVIDENCE. 

THE NARDONE DECISION SHOULD BE LIMITED TO ITS FACTS AND NOT EXTENDED
TO INTRASTATE COMMUNICATIONS.  NINETY-EIGHT PER CENT. OF ALL TELEPHONE
COMMUNICATION IS INTRASTATE, AND SERIOUS PRACTICAL AND CONSTITUTIONAL
DIFFICULTIES WILL ARISE IF THE NARDONE DECISION IS EXTENDED TO THIS
WIDE NEW FIELD.  THE IMMUNITY GRANTED BY THE ACT, AS CONSTRUED IN THAT
DECISION, IS BROADER THAN THE CONSTITUTIONAL GUARANTEE OF THE FOURTH
AMENDMENT, SINCE NOT EVEN REASONABLE "SEARCHES" ARE PERMISSIBLE.  ALSO,
UNDER THE GENERAL LANGUAGE OF SEC. 605, A DEFENDANT MIGHT HAVE SUCH
EVIDENCE EXCLUDED EVEN WHEN OBTAINED BY PRIVATE PERSONS UNCONNECTED
WITH THE GOVERNMENT (CF. BURDEAU V. MCDOWELL, 256 U.S. 465) OR WHERE
THE EVIDENCE WAS SECURED BY INTERCEPTING SOME OTHER PERSON'S MESSAGES
(CF. HALE V. HENKEL, 201 U.S. 43; AGNELLO V. UNITED STATES, 269 U.S.
20, 35).  IF CONSTITUTIONAL, THE SECTION THUS CONSTRUED WOULD FORBID
EVIDENCE OF INTERCEPTED INTRASTATE COMMUNICATIONS BY STATE OFFICERS IN
STATE PROSECUTIONS, ALTHOUGH A STATE CONSTITUTION OR STATUTE MAY
SPECIFICALLY MAKE SUCH EVIDENCE ADMISSIBLE.  SECTION 605 SHOULD BE
CONSTRUED TO AVOID DOUBTS AS TO ITS CONSTITUTIONAL VALIDITY. 

THE CLAUSE PROHIBITS DIVULGING ONLY BY PERSONS "NOT AUTHORIZED BY THE
SENDER."  THE WITNESSES WHO TESTIFIED TO THE TELEPHONE MESSAGES IN THE
TRIAL COURT WERE PARTIES TO THE CONVERSATION.  IT SHOULD BE SUFFICIENT
THAT ONE PARTICIPANT IN A TELEPHONE CONVERSATION AUTHORIZES DIVULGENCE
OF THE MESSAGE. 

INTERCEPTION OF TELEPHONE COMMUNICATIONS BY FEDERAL LAW ENFORCEMENT
OFFICERS DOES NOT VIOLATE THE FOURTH OR FIFTH AMENDMENTS.  OLMSTEAD V.
UNITED STATES, 277 U.S. 438, IS CONTROLLING AND SHOULD NOT BE
OVERRULED. 

THERE WAS NO VIOLATION OF NEW YORK STATE LAW IN THE PRESENT CASE. 
PEOPLE V. HEBBERD, 96 MISC. 617, 620-621.  EVEN IF THE STATE LAW WERE
VIOLATED, THE EVIDENCE WAS PROPERLY ADMITTED UNDER THE COMMON LAW RULE
THAT EVIDENCE, ALTHOUGH PROCURED ILLEGALLY, IS, NEVERTHELESS,
ADMISSIBLE. 

SINCE THE TELEPHONE CONVERSATIONS WERE INTRODUCED THROUGH THE
TESTIMONY OF PARTIES THERETO, STRICTLY SPEAKING THERE EXISTS IN THE
PRESENT CASE NO QUESTION OF "WIRETAPPING." 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS WERE INDICTED, WITH FIVE OTHERS, IN THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR USING THE MAILS TO
DEFRAUD AND FOR CONSPIRACY SO TO USE THEM.  FN1  THE ALLEGED SCHEME WAS
TO CHEAT INSURANCE COMPANIES BY INDUCING THEM TO PAY FALSE CLAIMS FOR
DISABILITY, HEALTH, AND ACCIDENT BENEFITS TO THREE OF THE DEFENDANTS,
NELSON, BERGER, AND SPITZ.  THESE THREE PLEADED GUILTY AND TESTIFIED
FOR THE GOVERNMENT.  THREE DEFENDANTS WHO WERE PHYSICIANS, - MESSMAN,
GOLDSTEIN, AND KRUPP - WERE ALLEGED TO HAVE ASSISTED BY FURNISHING
POLICY HOLDERS FALSE MEDICAL CERTIFICATES AND INSTRUCTING THEM HOW TO
SIMULATE ILLNESS.  MESSMAN PLEADED GUILTY AND TESTIFIED FOR THE
GOVERNMENT.  THE OTHER TWO STOOD TRIAL.  TWO LAWYERS, JOSEPH J. WEISS
AND ALFRED L. WEISS, AND AN INVESTIGATOR, GROSS, WERE CHARGED WITH
HAVING FURTHERED THE CLAIMS KNOWING THEM TO BE FALSE.  ALFRED L. WEISS
WAS GRANTED A SEVERANCE; JOSEPH J. WEISS AND GROSS STOOD TRIAL.  EACH
OF THE PETITIONERS WAS CONVICTED AND SENTENCED.  THE JUDGMENTS WERE
AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  FN2 

THE CONSPIRACY AND SCHEME CHARGED COVERED A PERIOD EXTENDING FROM
JANUARY 15, 1934, TO JULY 30, 1937, THE DATE OF THE INDICTMENT.  THE
PRINCIPAL ISSUE OF FACT WAS WHETHER THE PETITIONERS PARTICIPATED IN
MAKING FALSE CLAIMS WITH GUILTY KNOWLEDGE.  OVER OBJECTION AND
EXCEPTION, THE TRIAL JUDGE ADMITTED EVIDENCE OF SEVENTY-SIX INTERCEPTED
TELEPHONE COMMUNICATIONS. 

FOR MONTHS PRIOR TO THE FINDING OF THE INDICTMENT TELEPHONE MESSAGES
OVER THE WIRES LEADING INTO THE OFFICES OF WEISS AND MESSMAN IN NEW
YORK CITY, WERE INTERCEPTED.  THE WIRES WERE TAPPED BY A POLICEMAN
ACTING UNDER INSTRUCTIONS OF A UNITED STATES POST OFFICE INSPECTOR. 
THE INTERCEPTED MESSAGES WERE TAKEN STENOGRAPHICALLY AND WERE ALSO
SIMULTANEOUSLY RECORDED ON PHONOGRAPH DISCS BY EMPLOYES OF A DETECTIVE
AGENCY ACTING UNDER THE SAME INSTRUCTIONS.  EACH NIGHT THE RECORDS AND
STENOGRAPHIC TRANSCRIPTS OF COMMUNICATIONS INTERCEPTED DURING THE DAY
WERE DELIVERED TO THE UNITED STATES ATTORNEY OR HIS REPRESENTATIVE. 
INTERSTATE CALLS WERE MADE FROM WEISS' OFFICE AND THE TAPPED WIRES WERE
THE CONDUITS OF BOTH INTERSTATE AND INTRASTATE COMMUNICATIONS.  EVERY
CALL, WHETHER INTERSTATE OR INTRASTATE, TO OR FROM WEISS' OFFICE, WAS
INTERCEPTED AND RECORDED. 

IT APPEARED AT THE TRIAL THAT ONE OF THE DEFENDANTS WHO PLEADED
GUILTY HAD BEEN CONFRONTED WITH THE PHONOGRAPHIC RECORDS AND HAD THEN
DECIDED TO PLEAD GUILTY AND BECOME A WITNESS FOR THE GOVERNMENT. 
OTHERS WHO HAD BEEN INFORMED OF THE GOVERNMENT'S POSSESSION OF THE
RECORDS DID LIKEWISE.  IN THE PREPARATION FOR TRIAL ONE OF THE
DEFENDANTS, WHO WAS TO TESTIFY FOR THE PROSECUTION, HELD A TYPED COPY
OF THE STENOGRAPHIC TRANSCRIPT OF A TELEPHONE CONVERSATION IN WHICH HE
HAD PARTICIPATED WHILE A PHONOGRAPHIC RECORD OF THE CONVERSATION WAS
PLAYED TO HIM.  HE CORRECTED THE TYPED MANUSCRIPT TO MAKE IT CONFORM TO
THE WORDS EMITTED FROM THE PHONOGRAPH.  HE THEN MARKED THE PHONOGRAPHIC
RECORD AND THE SCRIPT FOR IDENTIFICATION. 

THE GOVERNMENT'S PROCEDURE AT THE TRIAL IN PROVING THE COMMUNICATIONS
WAS TO CALL AS A WITNESS ONE OF THE DEFENDANTS WHO HAD PLEADED GUILTY,
AND TO HAND HIM A TRANSCRIPT HE HAD MARKED FOR IDENTIFICATION.  AFTER
HE HAD TESTIFIED THAT, ON A GIVEN DATE, HE HELD A TELEPHONE
CONVERSATION WITH ONE OF THE OTHER DEFENDANTS, HE WAS ASKED WHETHER HE
COULD REPEAT THE CONVERSATION VERBATIM.  UPON HIS STATING THAT HE COULD
NOT DO SO WITHOUT THE USE OF THE TYPED TRANSCRIPT HE WAS PERMITTED TO
READ IT TO THE JURY.  SUBSEQUENTLY THE GOVERNMENT OFFERED THE
IDENTIFIED PHONOGRAPH RECORDS AND TYPEWRITTEN TRANSCRIPTS IN EVIDENCE
AND THEY WERE ADMITTED.  CERTAIN OF THE RECORDS WERE PLAYED TO THE JURY
WHILE EACH JURYMAN HELD A COPY OF THE TYPEWRITTEN TRANSCRIPT OF THE
CONVERSATION.  ALL OF THE COMMUNICATIONS IN QUESTION ARE CONCEDED TO
HAVE BEEN INTRASTATE SAVE ONE WHICH, HOWEVER, WAS NOT SHOWN TO HAVE
BEEN INTERSTATE. 

THE PETITIONERS' OBJECTIONS TO THE ADMISSION OF THIS EVIDENCE WERE
THAT IT WOULD VIOLATE SEC. 605 OF THE FEDERAL COMMUNICATIONS ACT OF
1934; FN3  WOULD VIOLATE THE FOURTH AND FIFTH AMENDMENTS OF THE FEDERAL
CONSTITUTION, AND WOULD BE IN THE TEETH OF SEC. 1423, SUBDIVISION 6, OF
THE PENAL LAW OF THE STATE OF NEW YORK,  FN4  MAKING WIRE TAPPING A
CRIME. 

BECAUSE OF CONFLICT OF DECISION IN THE CIRCUIT COURTS OF APPEAL  FN5
WE GRANTED CERTIORARI, LIMITED TO THE "QUESTION WHETHER THE TRIAL COURT
PROPERLY RECEIVED IN EVIDENCE INTERCEPTED TELEPHONE COMMUNICATIONS." 
FN6 

IN NARDONE V. UNITED STATES, 302 U.S. 379, IT WAS DECIDED THAT SEC.
605 OF THE FEDERAL COMMUNICATIONS ACT PROHIBITED THE RECEPTION IN A
FEDERAL COURT OF EVIDENCE OF INTERSTATE COMMUNICATIONS OBTAINED BY
FEDERAL AGENTS BY TAPPING TELEPHONE WIRES.  THE PETITIONERS ASSERT, AND
THE RESPONDENT DENIES, THAT THE SECTION BARS EVIDENCE OF INTRASTATE
COMMUNICATIONS SIMILARLY OBTAINED.  THE GOVERNMENT FURTHER CLAIMS THAT,
EVEN IF THE SECTION WOULD OTHERWISE BAR THE EVIDENCE, IT DOES NOT HAVE
THAT EFFECT IN THIS CASE, BECAUSE INTERCEPTION AND DIVULGENCE OF THE
MESSAGES PUT IN EVIDENCE WERE "AUTHORIZED BY THE SENDER" WITHIN THE
MEANING OF THE SECTION. 

THE SECTION CONSISTS OF FOUR CLAUSES SEPARATED BY SEMICOLONS.  THE
PERTINENT ONE IS THE SECOND: "AND NO PERSON NOT BEING AUTHORIZED BY THE
SENDER SHALL INTERCEPT ANY COMMUNICATION AND DIVULGE OR PUBLISH THE
EXISTENCE, CONTENTS, SUBSTANCE, PURPORT, EFFECT, OR MEANING OF SUCH
INTERCEPTED COMMUNICATION TO ANY PERSON;".  PLAINLY THE INTERDICTION
THUS PRONOUNCED IS NOT LIMITED TO INTERSTATE AND FOREIGN
COMMUNICATIONS.  AND, AS CONGRESS HAS POWER, WHEN NECESSARY FOR THE
PROTECTION OF INTERSTATE COMMERCE, TO REGULATE INTRASTATE TRANSACTIONS,
FN7  THERE IS NO CONSTITUTIONAL REQUIREMENT THAT THE SCOPE OF THE
STATUTE BE LIMITED SO AS TO EXCLUDE INTRASTATE COMMUNICATIONS. 

THE PETITIONERS AND THE GOVERNMENT ALIKE REFER TO THE CONTEXT OF THE
CRITICAL CLAUSE, AND THE LEGISLATIVE HISTORY OF THE COMMUNICATIONS ACT,
THE FORMER TO DEMONSTRATE THAT ALL COMMUNICATIONS ARE PROTECTED FROM
INTERCEPTION AND DIVULGENCE, THE LATTER TO PROVE THAT THE LANGUAGE OF
THE ACT MUST BE MORE NARROWLY INTERPRETED TO COVER ONLY INTERSTATE AND
FOREIGN COMMUNICATIONS. 

IN SUPPORT OF THE PETITIONERS' VIEW IT IS POINTED OUT THAT EACH
CLAUSE OF SEC. 605 IS COMPLETE IN ITSELF; THAT IN THE FIRST AND THIRD
CLAUSES, WHICH DEAL WITH DIVULGENCE OF MESSAGES BY PERSONS ENGAGED IN
RECEIVING OR TRANSMITTING THEM, THE COMMUNICATIONS ARE SPECIFIED AS
"ANY INTERSTATE OR FOREIGN COMMUNICATION," WHEREAS, IN THE SECOND AND
FOURTH CLAUSES, WHICH DEAL WITH INTERCEPTION AND DIVULGENCE OF
COMMUNICATIONS, THE PHRASES USED ARE "ANY COMMUNICATION" AND "SUCH
INTERCEPTED COMMUNICATION."  IT IS ARGUED THAT THE DIFFERENCE IN
PHRASEOLOGY MUST HAVE SIGNIFICANCE; AND, IN SUPPORT OF THE ASSERTION
THAT THE VARIETY OF EXPRESSION WAS NOT DUE TO INADVERTENCE, THE
PETITIONERS CALL ATTENTION TO THE FACT THAT SEC. 605 WAS TAKEN OVER
FROM SEC. 27 OF THE RADIO ACT OF 1927,  FN8  WHICH, REFERRING TO RADIO
MESSAGES, USED UNIFORMLY, IN EACH CLAUSE, THE TERM "COMMUNICATION" OR
"MESSAGE" AND NOWHERE QUALIFIED THE DESIGNATION BY THE USE OF THE
PHRASE "IN INTERSTATE OR FOREIGN COMMERCE." 

THE PETITIONERS FURTHER URGE THAT THERE IS GOOD REASON FOR THE
DISTINCTION IN THE PHRASING OF THE CLAUSES IN SEC. 605 SINCE PERSONS
EMPLOYED BY COMMUNICATION COMPANIES CAN DISTINGUISH BETWEEN INTERSTATE
AND INTRASTATE MESSAGES WHICH THEY HANDLE, WHEREAS, INASMUCH AS
MESSAGES OF BOTH SORTS PASS INDISCRIMINATELY OVER THE SAME WIRES, THE
INTERCEPTER CANNOT MAKE A SIMILAR DISTINCTION AND THE ONLY PRACTICABLE
WAY TO PROTECT INTERSTATE MESSAGES FROM INTERCEPTION AND DIVULGENCE IS
TO PROHIBIT THE INTERCEPTION OF ALL MESSAGES. 

THE GOVERNMENT ARGUES THAT A READING OF THE WHOLE SECTION MAKES IT
PLAIN THAT TO GIVE THE SECOND CLAUSE THE SCOPE CONTENDED FOR BY THE
PETITIONERS WILL LEAD TO INCONGRUITIES AND INCONSISTENCIES IN THE
OPERATION OF THE SECTION.  WE FIND NONE SUCH AS ARE SUFFICIENT TO
COUNTERVAIL WHAT APPEARS TO BE THE PLAIN MEANING OF THE SECOND CLAUSE. 

THE GOVERNMENT CORRECTLY ASSERTS THAT THE MAIN PURPOSE OF THE
COMMUNICATIONS ACT OF 1934 WAS TO EXTEND THE JURISDICTION OF THE
EXISTING RADIO COMMISSION TO EMBRACE TELEGRAPH AND TELEPHONE
COMMUNICATIONS AS WELL AS THOSE BY RADIO.  WE ARE ASKED TO HOLD THAT IF
CONGRESS HAD INTENDED TO MAKE SO DRASTIC A CHANGE AS TO REGULATE
INTRASTATE AS WELL AS INTERSTATE COMMUNICATION, BOTH THE LEGISLATIVE
HISTORY OF THE ACT AND ITS PHRASEOLOGY WOULD SO INDICATE, WHEREAS THERE
IS NOTHING IN EITHER TO EMPHASIZE ANY SUCH EXTENSION OF AUTHORITY.  WE
THINK, HOWEVER, THAT THE LEGISLATIVE HISTORY DOES NOT SERVE TO EXPLAIN
THE DIFFERENCE IN THE WORDING OF THE VARIOUS CLAUSES OF SEC. 605.  IN
MAKING THE ALTERATIONS IN THE PHRASEOLOGY OF THE SIMILAR SECTION OF THE
EARLIER ACT THE CONGRESS MUST HAVE HAD SOME PURPOSE.  WE CANNOT
CONCLUDE THAT THE CHANGE IN THE WORDING OF TWO OF THE FOUR CLAUSES OF
THE SECTION WAS INADVERTENT. 

THE GOVERNMENT FURTHER CONTENDS THAT THE ACT, VIEWED AS A WHOLE,
INDICATES AN INTENT TO REGULATE ONLY INTERSTATE AND FOREIGN
COMMUNICATION.  THE TITLE AND SECS. 1 AND 2, WITH A SINGLE EXCEPTION
WHICH SERVES TO EMPHASIZE THE DISTINCTION, EXPRESSLY SO DECLARE.  BUT
WE THINK THESE CONSIDERATIONS ARE NOT CONTROLLING IN THE CONSTRUCTION
OF SEC. 605.  THE COMMISSION'S REGULATORY POWERS AND ADMINISTRATIVE
FUNCTIONS HAVE TO DO ONLY WITH INTERSTATE AND FOREIGN COMMUNICATIONS. 
BUT SEC. 605 DELEGATES NO FUNCTION AND CONFERS NO POWER UPON THE
COMMISSION.  IT CONSISTS OF PROHIBITIONS, SANCTIONS FOR VIOLATION OF
WHICH ARE FOUND IN SEC. 501.  FN9  WE HOLD THAT THE BROAD AND INCLUSIVE
LANGUAGE OF THE SECOND CLAUSE OF THE SECTION IS NOT TO BE LIMITED BY
CONSTRUCTION SO AS TO EXCLUDE INTRASTATE COMMUNICATIONS FROM THE
PROTECTION AGAINST INTERCEPTION AND DIVULGENCE.    WE COME, THEN, TO
THE GOVERNMENT'S SECOND PROPOSITION, - THAT DISCLOSURE OF THE
INTERCEPTED COMMUNICATIONS WAS "AUTHORIZED BY THE SENDER" WITHIN THE
MEANING OF THE CLAUSE.  IT IS TRUE THAT ONE OR BOTH OF THE PARTIES TO
EACH OF THE ADMITTED COMMUNICATIONS ATTESTED IN THE MANNER WE HAVE
INDICATED TO THE INTERCEPTED CONVERSATIONS.  THIS IS SAID TO AMOUNT TO
A CONSENT TO THE DIVULGENCE OF THE SUBJECT MATTER AND TO SATISFY THE
STATUTE IN THAT RESPECT.  WE THINK THE POSITION IS UNTENABLE.  THE ACT
CONTEMPLATES VOLUNTARY CONSENT AND NOT ENFORCED AGREEMENT TO
PUBLICATION.  THE PARTICIPANTS WERE IGNORANT OF THE INTERCEPTION OF THE
MESSAGES AND DID NOT CONSENT THERETO.  THE CONTENTS OF THE STENOGRAPHIC
TRANSCRIPTS AND PHONOGRAPHIC RECORDS WERE, PRIOR TO THE TRIAL, MADE
AVAILABLE TO GOVERNMENT AGENTS AND UNITED STATES ATTORNEYS.  THIS
DIVULGENCE WAS NOT CONSENTED TO BY EITHER OF THE PARTIES TO ANY OF THE
TELEPHONE CONVERSATIONS.  IN THE ABSENCE OF SUCH DIVULGENCE THE
GOVERNMENT WOULD HAVE BEEN WITHOUT THE EVIDENCE EMBODIED IN THE
MESSAGES. 

IT IS SAID, HOWEVER, THAT, WHEN SOME OF THE DEFENDANTS PLEADED
GUILTY, ELECTED TO TAKE THE STAND AND TO TESTIFY TO THE CONTENTS OF THE
MESSAGES, THEY GAVE THE AUTHORIZATION CONTEMPLATED BY THE STATUTE.  WE
HAVE ALREADY ADVERTED TO THE METHOD BY WHICH THIS SUPPOSED
AUTHORIZATION WAS OBTAINED.  CERTAIN OF THE DEFENDANTS WHO WERE
PARTICIPANTS IN THE TELEPHONE CONVERSATIONS WERE INFORMED OF THE
GOVERNMENT'S POSSESSION OF THE CONTENTS OF THEIR COMMUNICATIONS.  UNDER
THE STRESS OF THIS SITUATION THEY DETERMINED TO TURN STATE'S EVIDENCE. 
MESSMAN'S LICENSE TO PRACTICE MEDICINE HAS NOT BEEN REVOKED; HE WAS NOT
REQUIRED TO PLEAD TO THE INDICTMENT; HE WAS PAID A SALARY BY THE
GOVERNMENT, FIRST OF $65.00 PER WEEK AND LATER OF $100.00 PER WEEK,
AMOUNTING, IN THE TOTAL, TO $3,237.12.  NELSON'S SENTENCE WAS
SUSPENDED.  HE WAS PAID A SALARY OF $50.00 PER WEEK.  BERGER'S SENTENCE
WAS SUSPENDED.  SPITZ'S SENTENCE WAS SUSPENDED. 

STATEMENT OF THESE FACTS IS CONVINCING THAT THE SO-CALLED
AUTHORIZATION CONSISTING OF THE AGREEMENT TO TURN STATE'S EVIDENCE, BY
SOME OF THE DEFENDANTS AFTER THEY HAD BEEN APPRIZED OF THE KNOWLEDGE OF
THEIR COMMUNICATIONS BY THE GOVERNMENT'S REPRESENTATIVES, AND IN THE
HOPE OF LENIENCY, WAS NOT THAT INTENDED OR DESCRIBED BY THE STATUTE AND
EMPHASIS THE OFFENSIVE USE WHICH MAY BE MADE OF INTERCEPTED MESSAGES,
WHETHER INTERSTATE OR INTRASTATE.  IT IS NOT TOO MUCH TO ASSUME THE
INTERDICTION OF THE STATUTE WAS INTENDED TO PREVENT SUCH A METHOD OF
PROCURING TESTIMONY. 

WE HOLD THAT SEC. 605 RENDERED THE COMMUNICATIONS INADMISSIBLE, AND
THAT IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT TO ADMIT THEM EITHER
BY PERMITTING THE DEFENDANTS WHO TURNED STATE'S EVIDENCE TO READ THE
TRANSCRIPTS OR ALLOWING THE PROSECUTOR TO PUT THE TRANSCRIPTS AND
PHONOGRAPHIC RECORDS INTO EVIDENCE UPON IDENTIFICATION BY THE PARTIES
TO THE CONVERSATIONS. 

WE HAVE NO OCCASION TO CONSIDER OR DECIDE THE QUESTIONS RAISED BY THE
OTHER OBJECTIONS OF THE PETITIONERS TO THE ADMISSION OF THE EVIDENCE. 

THE JUDGMENTS ARE REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  UNDER U.S.C. TIT. 18, SECS. 338 AND 88. 

FN2  103 F.2D 348. 

FN3  C. 652, 48 STAT. 1064, 1103; U.S.C. TIT. 47, SEC. 605. 

FN4  THOMPSON'S LAWS OF NEW YORK, 1939, PART I, P. 1909. 

FN5  VALLI V. UNITED STATES, 94 F.2D 687; DIAMOND V. UNITED STATES,
94 F.2D 1012, AND UNREPORTED OPINION ON PETITION FOR REHEARING;
SABLOWSKY V. UNITED STATES, 101 F.2D 183. 

FN6  307 U.S. 621. 

FN7  SHREVEPORT CASE, 234 U.S. 342, 351, 352; UNITED STATES V.
LOUISIANA, 290 U.S. 70, 75; NATIONAL LABOR RELATIONS BOARD V. JONES &
LAUGHLIN STEEL CORP., 301 U.S. 1, 38. 

FN8  ACT OF FEB. 23, 1927, 44 STAT. 1162, 1172. 

FN9  48 STAT. 1100, 47 U.S.C. SEC. 501. 
..END :









FORD MOTOR CO. V. BEAUCHAMP, 308 U.S. 331 


NO. 17.  ARGUED OCTOBER 16, 17, 1939.  - DECIDED DECEMBER 11, 1939.  -
100 F.2D 515, AFFIRMED. 


A STATE CORPORATE FRANCHISE TAX ON THE PRIVILEGE OF DOING LOCAL
BUSINESS, MEASURED BY A CHARGE UPON SUCH PROPORTION OF THE OUTSTANDING
CAPITAL STOCK, SURPLUS, AND UNDIVIDED PROFITS OF THE CORPORATION, PLUS
ITS LONG TERM OBLIGATIONS, AS THE GROSS RECEIPTS FROM ITS LOCAL
BUSINESS BEAR TO THE GROSS RECEIPTS OF ITS ENTIRE BUSINESS, HELD
CONSTITUTIONAL.  P. 334. 

THE GROSS RECEIPTS FROM THE LOCAL BUSINESS FOR THE YEAR IN QUESTION
WERE APPROXIMATELY $34,000,000; THE TOTAL GROSS RECEIPTS ABOUT
$888,000,000; THE RATIO OF LOCAL TO TOTAL RECEIPTS, 3.85 PER CENT; THE
TOTAL TAXABLE CAPITAL $600,000,000; THE VALUE OF LOCAL ASSETS ABOUT
$3,000,000, WHILE THE VALUE OF THE CAPITAL ALLOCATED TO THE TAXING
STATE AS A BASE FOR TAXATION BY THE STATUTORY FORMULA WOULD EXCEED
$23,000,000. 

FORD MOTOR CO. V. BEAUCHAMP, SECRETARY OF STATE OF THE STATE OF TEXAS,
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 306 U.S. 628, TO REVIEW THE AFFIRMANCE BY THE COURT BELOW
OF A JUDGMENT SUSTAINING A STATE TAX. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DETERMINATION IN THIS PROCEEDING IS THE VALIDITY, AS
APPLIED TO THIS PETITIONER, OF A STATUTE OF THE STATE OF TEXAS LEVYING
AN ANNUAL FRANCHISE TAX ON ALL CORPORATIONS CHARTERED OR AUTHORIZED TO
DO BUSINESS IN TEXAS, MEASURED BY A GRADUATED CHARGE UPON SUCH
PROPORTION OF THE OUTSTANDING CAPITAL STOCK, SURPLUS AND UNDIVIDED
PROFITS OF THE CORPORATION, PLUS ITS LONG TERM OBLIGATIONS, AS THE
GROSS RECEIPTS OF ITS TEXAS BUSINESS BEAR TO THE TOTAL GROSS RECEIPTS
FROM ITS ENTIRE BUSINESS. 

THE COURT OF APPEALS  FN1  AFFIRMED THE JUDGMENT OF THE DISTRICT
COURT, UPHOLDING THE VALIDITY OF THE TAX.  ON ACCOUNT OF AN ALLEGED
PROBABLE CONFLICT WITH THE PRINCIPLES UNDERLYING CERTAIN DECISIONS OF
THIS COURT CERTIORARI WAS GRANTED.  FN2  THE APPLICABLE PROVISIONS OF
THE STATUTE APPEAR BELOW.  FN3 

BY ARTICLE 7057B OF THE REVISED CIVIL STATUTES OF TEXAS ANY
CORPORATION WHICH MAY BE REQUIRED TO PAY ANY FRANCHISE OR OTHER
PRIVILEGE TAX MAY PAY IT UNDER WRITTEN PROTEST AND BRING SUIT WITHIN A
LIMITED TIME THEREAFTER IN ANY COURT OF COMPETENT JURISDICTION IN
TRAVIS COUNTY, TEXAS, AGAINST THE PUBLIC OFFICIAL CHARGED WITH THE DUTY
OF COLLECTING SUCH TAX, THE STATE TREASURER AND THE ATTORNEY GENERAL,
FOR ITS RECOVERY.  THIS SUIT WAS INSTITUTED IN THE DISTRICT COURT OF
THE UNITED STATES, WESTERN DISTRICT, AUSTIN DIVISION, AGAINST THE STATE
OFFICIALS AUTHORIZED TO BE MADE DEFENDANTS.  DEFENDANTS JOINED IN A
DEMURRER ON THE GROUND THAT NO CAUSE OF ACTION WAS SET OUT IN THE
PETITION. 

PETITIONER OWNS AND OPERATES A LARGE MANUFACTORY OF MOTOR VEHICLES IN
MICHIGAN AND ASSEMBLY PLANTS IN TEXAS.  NO PARTS FOR THE AUTOMOBILES
PRODUCED BY PETITIONER ARE MANUFACTURED AT ANY POINT WITHIN TEXAS.  THE
MANUFACTURED PARTS ARE SHIPPED TO PETITIONER'S ASSEMBLY PLANTS IN TEXAS
AND ARE THERE ASSEMBLED.  THE ASSEMBLED VEHICLES ARE SOLD IN INTRASTATE
COMMERCE TO VARIOUS DEALERS WHO IN TURN SELL THE VEHICLES TO THE
PUBLIC.  A RELATIVELY SMALL NUMBER OF COMPLETED VEHICLES ARE SHIPPED
INTO TEXAS AND LATER SOLD IN INTRASTATE COMMERCE ALONG WITH LARGE
QUANTITIES OF MOTOR PARTS AND ACCESSORIES.  WITHOUT UNDERTAKING TO BE
PRECISE, THE GROSS RECEIPTS FROM BUSINESS DONE IN TEXAS FOR THE YEAR IN
QUESTION AMOUNTED TO APPROXIMATELY $34,000,000.  PETITIONER'S TOTAL
GROSS RECEIPTS WERE ABOUT $888,000,000.  THE RATIO OF TEXAS RECEIPTS TO
TOTAL RECEIPTS WAS 3.85  PER CENT.  PETITIONER'S TOTAL TAXABLE CAPITAL
WAS $600,000,000 .  THE VALUE OF ALL ASSETS LOCATED IN TEXAS WAS
SOMEWHAT OVER $3,000,000, WHILE THE VALUE OF THE CAPITAL ALLOCATED TO
TEXAS AS A BASE FOR TAXATION BY THE STATUTORY FORMULA WOULD BE IN
EXCESS OF $23,000,000. 

FOR THE TAXABLE YEAR BEGINNING MAY 1, 1936, A FRANCHISE TAX WAS
TENDERED TEXAS IN THE SUM OF $1,224, COMPUTED ON THE ACTUAL NET BOOK
VALUE OF ALL OF PETITIONER'S ASSETS IN TEXAS.  ON DEMAND AND UNDER
PROTEST AN ADDITIONAL FRANCHISE TAX AND PENALTY WAS PAID IN THE SUM OF
$7,529, BASED ON THE ALLOCATION TO TEXAS OF CAPITAL AS CALCULATED BY
THE STATUTORY FORMULA.  THIS SUIT WAS BROUGHT TO RECOVER THE ALLEGED
UNLAWFUL EXACTION. 

THIS EXACTION, PETITIONER PLEADS, IS CALCULATED FROM A FORMULA THAT
RESULTS IN THE LEVY OF A TAX ON ASSETS USED IN PETITIONER'S INTERSTATE
BUSINESS IN VIOLATION OF ARTICLE I, SEC. 8, OF THE CONSTITUTION.  IT IS
FURTHER ALLEGED THAT THE TAX OPERATES TO DEPRIVE PETITIONER OF ITS
PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT BECAUSE IT MUST PAY A TAX ON PROPERTY NEITHER LOCATED NOR
USED WITHIN THE STATE OF TEXAS AND ON ACTIVITIES BEYOND THE BORDERS OF
TEXAS. 

THE STATUTE CALLS THE EXCISE A FRANCHISE TAX.  IT IS OBVIOUSLY
PAYMENT FOR THE PRIVILEGE OF CARRYING ON BUSINESS IN TEXAS.  FN4  THERE
IS NO QUESTION BUT THAT THE STATE HAS THE POWER TO MAKE A CHARGE
AGAINST DOMESTIC OR FOREIGN CORPORATIONS FOR THE OPPORTUNITY TO
TRANSACT THIS INTRASTATE BUSINESS.  FN5  THE EXPLOITATION BY FOREIGN
CORPORATIONS OF INTRASTATE OPPORTUNITIES UNDER THE PROTECTION AND
ENCOURAGEMENT OF LOCAL GOVERNMENT OFFERS A BASIS FOR TAXATION AS
UNRESTRICTED AS THAT FOR DOMESTIC CORPORATIONS.  IN LAYING A LOCAL
PRIVILEGE TAX, THE STATE SOVEREIGNTY MAY PLACE A CHARGE UPON THAT
PRIVILEGE FOR THE PROTECTION AFFORDED.  WHEN THAT CHARGE, AS HERE, IS
BASED UPON THE PROPORTION OF THE CAPITAL EMPLOYED IN TEXAS, CALCULATED
BY THE PERCENTAGE OF SALES WHICH ARE WITHIN THE STATE, NO PROVISION OF
THE FEDERAL CONSTITUTION IS VIOLATED. 

THE MOTOR VEHICLES FOR THE MARKETING OF WHICH THE PRIVILEGE IS USED
ARE CONCEDEDLY SOLD IN INTRASTATE COMMERCE.  THE TAX HERE LEVIED IS NOT
FOR THE PRIVILEGE OF ENGAGING IN ANY TRANSACTION ACROSS STATE LINES OR
ACTIVITY CARRIED ON IN ANOTHER STATE.  IT IS MUCH LIKE THAT UPHELD IN
BASS, RATCLIFF & GRETTON V. TAX COMMISSION.  FN6  IN THAT CASE A TAX
WAS LAID FOR THE PRIVILEGE OF DOING BUSINESS IN NEW YORK DETERMINED,
FOR CORPORATIONS WHICH DID NOT TRANSACT ALL THEIR BUSINESS WITHIN THAT
STATE, BY A PERCENTAGE OF THAT PART OF THE NET INCOME WHICH IS
CALCULATED BY THE PROPORTION WHICH THE AGGREGATE OF SPECIFIED CLASSES
OF PROPERTY WITHIN THE STATE BEARS TO ALL THE PROPERTY OF THE
CORPORATION.  FN7 

IN NATIONAL LEATHER CO. V. MASSACHUSETTS  FN8  THIS COURT UPHELD A
TAX FOR THE PRIVILEGE OF DOING BUSINESS IN A STATE BY A CORPORATION OF
AN AMOUNT "EQUAL TO FIVE DOLLARS PER THOUSAND UPON THE VALUE OF THE
CORPORATE EXCESS EMPLOYED BY IT WITHIN THE COMMONWEALTH."  THIS EXCESS
WAS DEFINED AS "SUCH PROPORTION OF THE FAIR CASH VALUE OF ALL THE
SHARES CONSTITUTING THE CAPITAL STOCK  ...  AS THE VALUE OF THE ASSETS,
BOTH REAL AND PERSONAL, EMPLOYED IN ANY BUSINESS WITHIN THE
COMMONWEALTH  ...  BEARS TO THE VALUE OF THE TOTAL ASSETS OF THE
CORPORATION."  THE NATIONAL LEATHER COMPANY, A MAINE CORPORATION, OWNED
THE STOCK OF TWO OTHER MAINE CORPORATIONS.  THEIR PLANTS WERE IN
MASSACHUSETTS.  ON THE ASSUMPTION THAT THE SITUS OF THE STOCK FOLLOWED
THE DOMICILE OF THE OWNER, THE TAXPAYER CHALLENGED THE INCLUSION OF THE
MAINE STOCK IN THE BASIS FOR THE LOCAL TAX.  THIS COURT HELD THAT
MASSACHUSETTS WAS FREE TO USE THE STOCK FOR THE CALCULATION OF THE
LOCAL TAX.  SIMILAR METHODS OF DETERMINING PRIVILEGE TAXES WERE LEFT TO
THE STATES IN INTERNATIONAL SHOE CO. V. SHARTEL  FN9  AND NEW YORK V.
LATROBE.  FN10  THE CONSTITUTION RECOGNIZES THE DUAL INTERESTS OF THE
NATIONAL AND STATE GOVERNMENTS AND PERMITS TAXES FOR LOCAL PRIVILEGES
UPON THE INTRASTATE ACTIVITIES OF THE FARFLUNG ENTERPRISES WHICH GAIN
LARGE BENEFITS FROM THE NATIONWIDE MARKET, PROTECTED BY THE COMMERCE
CLAUSE.  WE REJECT PETITIONER'S CONTENTION THAT CONSTITUTIONALITY OF
STATE TAXATION TURNS ON SO NARROW AN ISSUE AS WHETHER LOCAL ASSETS
RATHER THAN LOCAL GROSS RECEIPTS ARE USED IN A TAXING FORMULA. 

IN A UNITARY ENTERPRISE, PROPERTY OUTSIDE THE STATE, WHEN CORRELATED
IN USE WITH PROPERTY WITHIN THE STATE, NECESSARILY AFFECTS THE WORTH OF
THE PRIVILEGE WITHIN THE STATE.  FINANCIAL POWER INHERENT IN THE
POSSESSION OF ASSETS MAY BE APPLIED, WITH FLEXIBILITY, AT WHATEVER
POINT WITHIN OR WITHOUT THE STATE THE MANAGERS OF THE BUSINESS MAY
DETERMINE.  FOR THIS REASON IT IS HELD THAT AN ENTRANCE FEE MAY BE
PROPERLY MEASURED BY CAPITAL WHEREVER LOCATED.  FN11  THE WEIGHT, IN
DETERMINING THE VALUE OF THE INTRASTATE PRIVILEGE, GIVEN THE PROPERTY
BEYOND THE STATE BOUNDARIES IS BUT A RECOGNITION OF THE VERY REAL
EFFECT ITS EXISTENCE HAS UPON THE VALUE OF THE PRIVILEGE GRANTED WITHIN
THE TAXING STATE.  THIS WAS RECOGNIZED BY THIS COURT IN ATLANTIC &
PACIFIC TEA CO. V. GROSJEAN  FN12  WHERE AN OCCUPATION OR LICENSE TAX
ON CHAIN STORES WAS GRADUATED "ON THE NUMBER OF STORES OR MERCANTILE
ESTABLISHMENTS" INCLUDED UNDER THE SAME MANAGEMENT "WHETHER OPERATED IN
THIS STATE OR NOT."  WE SAID:  "THE LAW RATES THE PRIVILEGE ENJOYED IN
LOUISIANA ACCORDING TO THE NATURE AND EXTENT OF THAT PRIVILEGE IN THE
LIGHT OF THE ADVANTAGES, THE CAPACITY, AND THE COMPETITIVE ABILITY OF
THE CHAIN'S STORES IN LOUISIANA CONSIDERED NOT BY THEMSELVES, AS IF
THEY CONSTITUTED THE WHOLE ORGANIZATION, BUT IN THEIR SETTING AS
INTEGRAL PARTS OF A MUCH LARGER ORGANIZATION."  FN13  THIS SAME RULE
APPLIES HERE.  JAMES V. DRAVO CONTRACTING CO. FN14  CONTAINS NOTHING
CONTRARY TO THIS VIEW.  THE STATUTE UNDER CONSIDERATION THERE LEVIED A
PRIVILEGE TAX "EQUAL TO TWO PER CENT. OF THE GROSS INCOME OF THE
BUSINESS."  IN SO FAR AS IT WAS UPON RECEIPTS IN OTHER STATES FOR WORK
DONE IN OTHER STATES, IT WAS CONCEDED TO BE OUTSIDE OF THE TAXING POWER
OF THE STATUTE.  AFFIRMED. 

FN1  FORD MOTOR CO. V. CLARK, 100 F.2D 515. 

FN2  306 U.S. 628. 

FN3  "ARTICLE 7084.  AMOUNT OF TAX.   - (A) EXCEPT AS HEREIN
PROVIDED, EVERY DOMESTIC AND FOREIGN CORPORATION HERETOFORE OR
HEREAFTER CHARTERED OR AUTHORIZED TO DO BUSINESS IN TEXAS, SHALL,  ...
EACH YEAR, PAY  ... A FRANCHISE TAX  ...  , BASED UPON THAT PROPORTION
OF THE OUTSTANDING CAPITAL STOCK, SURPLUS AND UNDIVIDED PROFITS, PLUS
THE AMOUNT OF OUTSTANDING BONDS, NOTES AND DEBENTURES, OTHER THAN THOSE
MATURING IN LESS THAN A YEAR FROM DATE OF ISSUE, AS THE GROSS RECEIPTS
FROM ITS BUSINESS DONE IN TEXAS BEARS TO THE TOTAL GROSS RECEIPTS OF
THE CORPORATION FROM ITS ENTIRE BUSINESS, WHICH TAX SHALL BE COMPUTED
AT THE FOLLOWING RATES FOR EACH ONE THOUSAND DOLLARS ($1,000.00) OR
FRACTIONAL PART THEREOF; ONE DOLLAR ($1.00) TO ONE MILLION DOLLARS
($1,000,000.00), SIXTY CENTS (60[)  ...  " 

FN4  INVESTMENT SECURITIES CO. V. MEHARG, 115 TEXAS 441; 282 S.W.
802; UNITED NORTH & SOUTH DEVELOPMENT CO. V. HEATH, 78 S.W.2D 650(TEX. 
CIV.  APP.). 

FN5  FICKLEN V. SHELBY COUNTY TAXING DISTRICT, 145 U.S. 1, 21;
AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459; MATSON NAV. CO. V. STATE
BOARD, 297 U.S. 441; WESTERN LIVE STOCK V. BUREAU, 303 U.S. 250;
COVERDALE V. PIPE LINE CO., 303 U.S. 604, 608. 

FN6  266 U.S. 271. 

FN7  CF. UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, 254 U.S. 113, 120. 

FN8  277 U.S. 413. 

FN9  279 U.S. 429. 

FN10  279 U.S. 421. 

FN11  ATLANTIC REFINING CO. V. VIRGINIA, 302 U.S. 22, 29; CF. KANSAS
CITY, F.S. & M. RY. CO. V. BOTKIN, 240 U.S. 227, 235. 

FN12  301 U.S. 412, 424-425. 

FN13  301 U.S. 425. 

FN14  302 U.S. 134, 139. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE JUDGMENT COMPLAINED OF
SHOULD BE REVERSED. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE RESULT. 
..END :









NARDONE V. UNITED STATES, 308 U.S. 338 


NO. 240.  ARGUED NOVEMBER 14, 1939.  - DECIDED DECEMBER 11, 1939.  - 106
F.2D 41, REVERSED. 


1.  IN A PROSECUTION IN A FEDERAL COURT, EVIDENCE PROCURED BY TAPPING
WIRES IN VIOLATION OF THE COMMUNICATIONS ACT OF 1934 IS INADMISSIBLE. 
THIS APPLIES NOT ONLY TO THE INTERCEPTED CONVERSATIONS THEMSELVES BUT
ALSO, BY IMPLICATION, TO EVIDENCE PROCURED THROUGH THE USE OF KNOWLEDGE
GAINED FROM SUCH CONVERSATIONS.  P. 339. 

2.  THE BURDEN IS ON THE ACCUSED IN THE FIRST INSTANCE TO PROVE TO
THE TRIAL COURT'S SATISFACTION THAT WIRE-TAPPING WAS UNLAWFULLY
EMPLOYED.  P. 341. 

3.  ONCE THAT IS ESTABLISHED, THE TRIAL JUDGE MUST GIVE OPPORTUNITY
TO THE ACCUSED TO PROVE THAT A SUBSTANTIAL PORTION OF THE CASE AGAINST
HIM WAS THE RESULT OF THE ILLICIT WIRE-TAPPING.  ID. 

4.  CLAIMS THAT THIS TAINT ATTACHES TO ANY PORTION OF THE
GOVERNMENT'S CASE MUST SATISFY THE TRIAL COURT WITH THEIR SOLIDITY AND
NOT BE MERELY A MEANS OF ELICITING WHAT IS IN THE GOVERNMENT'S
POSSESSION BEFORE ITS SUBMISSION TO THE JURY.  AND IF SUCH A CLAIM IS
MADE AFTER THE TRIAL IS UNDER WAY, THE JUDGE MUST LIKEWISE BE SATISFIED
THAT THE ACCUSED COULD NOT AT AN EARLIER STAGE HAVE HAD ADEQUATE
KNOWLEDGE TO MAKE HIS CLAIM.  P. 342. 

NARDONE ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 539, TO REVIEW THE AFFIRMANCE OF CONVICTIONS IN
THE DISTRICT COURT UNDER AN INDICTMENT FOR FRAUDS ON REVENUE. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON FOR THE SECOND TIME TO REVIEW AFFIRMANCE BY THE
CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT OF PETITIONERS'
CONVICTIONS UNDER AN INDICTMENT FOR FRAUDS ON THE REVENUE.  IN NARDONE
V. UNITED STATES, 302 U.S. 379, THIS COURT REVERSED THE CONVICTIONS ON
THE FIRST TRIAL BECAUSE THEY WERE PROCURED BY EVIDENCE SECURED IN
VIOLATION OF SEC. 605 OF THE COMMUNICATIONS ACT OF 1934(C. 652, 48
STAT. 1064, 1103; 47 U.S.C., SEC. 605).  FOR DETAILS OF THE FACTS
REFERENCE IS MADE TO THAT CASE.  SUFFICE IT HERE TO SAY THAT THIS
EVIDENCE CONSISTED OF INTERCEPTED TELEPHONE MESSAGES, CONSTITUTING "A
VITAL PART OF THE PROSECUTION'S PROOF." 

CONVICTION FOLLOWED A NEW TRIAL, AND "THE MAIN QUESTION" ON THE
APPEAL BELOW IS THE ONLY QUESTION OPEN HERE - NAMELY, "WHETHER THE
(TRIAL) JUDGE IMPROPERLY REFUSED TO ALLOW THE ACCUSED TO EXAMINE THE
PROSECUTION AS TO THE USES TO WHICH IT HAD PUT THE INFORMATION" WHICH
NARDONE V. UNITED STATES, SUPRA, FOUND TO HAVE VITIATED THE ORIGINAL
CONVICTION.  THOUGH CANDIDLY DOUBTFUL OF THE RESULT IT REACHED, THE
CIRCUIT COURT OF APPEALS LIMITED THE SCOPE OF SEC. 605 TO THE PRECISE
CIRCUMSTANCES BEFORE THIS COURT IN THE FIRST NARDONE CASE, AND RULED
THAT "CONGRESS HAD NOT ALSO MADE INCOMPETENT TESTIMONY WHICH HAD BECOME
ACCESSIBLE BY THE USE OF UNLAWFUL 'TAPS', FOR TO DIVULGE THAT
INFORMATION WAS NOT TO DIVULGE AN INTERCEPTED TELEPHONE TALK."  106
F.2D 41. 

THE ISSUE THUS TENDERED BY THE CIRCUIT COURT OF APPEALS IS THE BROAD
ONE, WHETHER OR NO SEC. 605 MERELY INTERDICTS THE INTRODUCTION INTO
EVIDENCE IN A FEDERAL TRIAL OF INTERCEPTED TELEPHONE CONVERSATIONS,
LEAVING THE PROSECUTION FREE TO MAKE EVERY OTHER USE OF THE PROSCRIBED
EVIDENCE.  PLAINLY, THIS PRESENTS A FAR-REACHING PROBLEM IN THE
ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE, AND WE THEREFORE BROUGHT
THE CASE HERE FOR DISPOSITION. 

ANY CLAIM FOR THE EXCLUSION OF EVIDENCE LOGICALLY RELEVANT IN
CRIMINAL PROSECUTIONS IS HEAVILY HANDICAPPED.  IT MUST BE JUSTIFIED BY
AN OVER-RIDING PUBLIC POLICY EXPRESSED IN THE CONSTITUTION OR THE LAW
OF THE LAND.  IN A PROBLEM SUCH AS THAT BEFORE US NOW, TWO OPPOSING
CONCERNS MUST BE HARMONIZED:  ON THE ONE HAND, THE STERN ENFORCEMENT OF
THE CRIMINAL LAW; ON THE OTHER, PROTECTION OF THAT REALM OF PRIVACY
LEFT FREE BY CONSTITUTION AND LAWS BUT CAPABLE OF INFRINGEMENT EITHER
THROUGH ZEAL OR DESIGN.  IN ACCOMMODATING BOTH THESE CONCERNS, MEANING
MUST BE GIVEN TO WHAT CONGRESS HAS WRITTEN, EVEN IF NOT IN EXPLICIT
LANGUAGE, SO AS TO EFFECTUATE THE POLICY WHICH CONGRESS HAS
FORMULATED. 

WE ARE HERE DEALING WITH SPECIFIC PROHIBITION OF PARTICULAR METHODS
IN OBTAINING EVIDENCE.  THE RESULT OF THE HOLDING BELOW IS TO REDUCE
THE SCOPE OF SEC. 605 TO EXCLUSION OF THE EXACT WORDS HEARD THROUGH
FORBIDDEN INTERCEPTIONS, ALLOWING THESE INTERCEPTIONS EVERY DERIVATIVE
USE THAT THEY MAY SERVE.  SUCH A READING OF SEC. 605 WOULD LARGELY
STULTIFY THE POLICY WHICH COMPELLED OUR DECISION IN NARDONE V. UNITED
STATES, SUPRA.  THAT DECISION WAS NOT THE PRODUCT OF A MERELY
METICULOUS READING OF TECHNICAL LANGUAGE.  IT WAS THE TRANSLATION INTO
PRACTICALITY OF BROAD CONSIDERATIONS OF MORALITY AND PUBLIC WELL
BEING.  THIS COURT FOUND THAT THE LOGICALLY RELEVANT PROOF WHICH
CONGRESS HAD OUTLAWED, IT OUTLAWED BECAUSE "INCONSISTENT WITH ETHICAL
STANDARDS AND DESTRUCTIVE OF PERSONAL LIBERTY."  302 U.S. 379, 383.  TO
FORBID THE DIRECT USE OF METHODS THUS CHARACTERIZED BUT TO PUT NO CURB
ON THEIR FULL INDIRECT USE WOULD ONLY INVITE THE VERY METHODS DEEMED
"INCONSISTENT WITH ETHICAL STANDARDS AND DESTRUCTIVE OF PERSONAL
LIBERTY."  WHAT WAS SAID IN A DIFFERENT CONTEXT IN SILVERTHORNE LUMBER
CO. V. UNITED STATES, 251 U.S. 385, 392, IS PERTINENT HERE:  "THE
ESSENCE OF A PROVISION FORBIDDING THE ACQUISITION OF EVIDENCE IN A
CERTAIN WAY IS THAT NOT MERELY EVIDENCE SO ACQUIRED SHALL NOT BE USED
BEFORE THE COURT, BUT THAT IT SHALL NOT BE USED AT ALL."  SEE GOULED V.
UNITED STATES, 255 U.S. 298, 307.  A DECENT RESPECT FOR THE POLICY OF
CONGRESS MUST SAVE US FROM IMPUTING TO IT A SELF-DEFEATING, IF NOT
DISINGENUOUS PURPOSE. 

HERE, AS IN THE SILVERTHORNE CASE, THE FACTS IMPROPERLY OBTAINED DO
NOT "BECOME SACRED AND INACCESSIBLE.  IF KNOWLEDGE OF THEM IS GAINED
FROM AN INDEPENDENT SOURCE THEY MAY BE PROVED LIKE ANY OTHERS, BUT THE
KNOWLEDGE GAINED BY THE GOVERNMENT'S OWN WRONG CANNOT BE USED BY IT"
SIMPLY BECAUSE IT IS USED DERIVATIVELY.  251 U.S. 385, 392. 

IN PRACTICE THIS GENERALIZED STATEMENT MAY CONCEAL CONCRETE
COMPLEXITIES.  SOPHISTICATED ARGUMENT MAY PROVE A CAUSAL CONNECTION
BETWEEN INFORMATION OBTAINED THROUGH ILLICIT WIRE-TAPPING AND THE
GOVERNMENT'S PROOF.  AS A MATTER OF GOOD SENSE, HOWEVER, SUCH
CONNECTION MAY HAVE BECOME SO ATTENUATED AS TO DISSIPATE THE TAINT.  A
SENSIBLE WAY OF DEALING WITH SUCH A SITUATION - FAIR TO THE INTENDMENT
OF SEC. 605, BUT FAIR ALSO TO THE PURPOSES OF THE CRIMINAL LAW - OUGHT
TO BE WITHIN THE REACH OF EXPERIENCED TRIAL JUDGES.  THE BURDEN IS, OF
COURSE, ON THE ACCUSED IN THE FIRST INSTANCE TO PROVE TO THE TRIAL
COURT'S SATISFACTION THAT WIRE-TAPPING WAS UNLAWFULLY EMPLOYED.  ONCE
THAT IS ESTABLISHED - AS WAS PLAINLY DONE HERE - THE TRIAL JUDGE MUST
GIVE OPPORTUNITY, HOWEVER CLOSELY CONFINED, TO THE ACCUSED TO PROVE
THAT A SUBSTANTIAL PORTION OF THE CASE AGAINST HIM WAS A FRUIT OF THE
POISONOUS TREE.  THIS LEAVES AMPLE OPPORTUNITY TO THE GOVERNMENT TO
CONVINCE THE TRIAL COURT THAT ITS PROOF HAD AN INDEPENDENT ORIGIN. 

DISPATCH IN THE TRIAL OF CRIMINAL CAUSES IS ESSENTIAL IN BRINGING
CRIME TO BOOK.  THEREFORE, TIMELY STEPS MUST BE TAKEN TO SECURE
JUDICIAL DETERMINATION OF CLAIMS OF ILLEGALITY ON THE PART OF AGENTS OF
THE GOVERNMENT IN OBTAINING TESTIMONY.  TO INTERRUPT THE COURSE OF THE
TRIAL FOR SUCH AUXILIARY INQUIRIES IMPEDES THE MOMENTUM OF THE MAIN
PROCEEDING AND BREAKS THE CONTINUITY OF THE JURY'S ATTENTION.  LIKE
MISCHIEF WOULD RESULT WERE TENUOUS CLAIMS SUFFICIENT TO JUSTIFY THE
TRIAL COURT'S INDULGENCE OF INQUIRY INTO THE LEGITIMACY OF EVIDENCE IN
THE GOVERNMENT'S POSSESSION.  SO TO READ A CONGRESSIONAL PROHIBITION
AGAINST THE AVAILABILITY OF CERTAIN EVIDENCE WOULD BE TO SUBORDINATE
THE NEED FOR RIGOROUS ADMINISTRATION OF JUSTICE TO UNDUE SOLICITUDE FOR
POTENTIAL AND, IT IS TO BE HOPED, ABNORMAL DISOBEDIENCE OF THE LAW BY
THE LAW'S OFFICERS.  THEREFORE CLAIMS THAT TAINT ATTACHES TO ANY
PORTION OF THE GOVERNMENT'S CASE MUST SATISFY THE TRIAL COURT WITH
THEIR SOLIDITY AND NOT BE MERELY A MEANS OF ELICITING WHAT IS IN THE
GOVERNMENT'S POSSESSION BEFORE ITS SUBMISSION TO THE JURY.  AND IF SUCH
A CLAIM IS MADE AFTER THE TRIAL IS UNDER WAY, THE JUDGE MUST LIKEWISE
BE SATISFIED THAT THE ACCUSED COULD NOT AT AN EARLIER STAGE HAVE HAD
ADEQUATE KNOWLEDGE TO MAKE HIS CLAIM.  THE CIVILIZED CONDUCT OF
CRIMINAL TRIALS CANNOT BE CONFINED WITHIN MECHANICAL RULES.  IT
NECESSARILY DEMANDS THE AUTHORITY OF LIMITED DIRECTION ENTRUSTED TO THE
JUDGE PRESIDING IN FEDERAL TRIALS, INCLUDING A WELL-ESTABLISHED RANGE
OF JUDICIAL DISCRETION, SUBJECT TO APPROPRIATE REVIEW ON APPEAL, IN
RULING UPON PRELIMINARY QUESTIONS OF FACT.  SUCH A SYSTEM AS OURS MUST,
WITHIN THE LIMITS HERE INDICATED, RELY ON THE LEARNING, GOOD SENSE,
FAIRNESS AND COURAGE OF FEDERAL TRIAL JUDGES. 

WE HAVE DEALT WITH THIS CASE ON THE BASIC ISSUE TENDERED BY THE
CIRCUIT COURT OF APPEALS AND HAVE NOT INDULGED IN A FINICKING APPRAISAL
OF THE RECORD, EITHER AS TO THE ISSUE OF THE TIME LIMIT OF THE PROPOSED
INQUIRY INTO THE USE TO WHICH THE GOVERNMENT HAD PUT ITS ILLICIT
PRACTICES, OR AS TO THE EXISTENCE OF INDEPENDENT SOURCES FOR THE
GOVERNMENT'S PROOF.  SINCE THE CIRCUIT COURT OF APPEALS DID NOT
QUESTION ITS TIMELINESS, WE SHALL NOT.  AND THE HOSTILITY OF THE TRIAL
COURT TO THE WHOLE SCOPE OF THE INQUIRY REFLECTED HIS OWN ACCORD WITH
THE RULE OF LAW BY WHICH THE CIRCUIT COURT OF APPEALS SUSTAINED HIM,
AND WHICH WE FIND ERRONEOUS. 

THE JUDGMENT MUST BE REVERSED AND REMANDED TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE CIRCUIT COURT OF
APPEALS REACHED THE PROPER CONCLUSION UPON REASONS THERE ADEQUATELY
STATED AND ITS JUDGMENT SHOULD BE AFFIRMED. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










JOHN HANCOCK INS. CO. V. BARTELS, 308 U.S. 180 


NO. 33.  ARGUED NOVEMBER 9, 1939.  - DECIDED DECEMBER 4, 1939.  - 100
F.2D 813, AFFIRMED. 


1.  SUBSECTIONS (A) TO (R) OF SEC. 75 OF THE BANKRUPTCY ACT DO NOT
PROVIDE THAT A PETITION FOR COMPOSITION OR EXTENSION SHALL BE DISMISSED
IN THE ABSENCE OF A REASONABLE PROBABILITY OF THE FINANCIAL
REHABILITATION OF THE DEBTOR, NOR DO THEY WARRANT THE IMPUTATION OF
LACK OF GOOD FAITH TO A FARMER-DEBTOR BECAUSE OF THAT PLIGHT.  P. 184. 

2.  THE PURPOSE OF SEC. 75 OF THE BANKRUPTCY ACT IS TO AFFORD RELIEF
TO DEBTORS IN ECONOMIC DISTRESS, HOWEVER SEVERE, BY GIVING THEM A
CHANCE TO SEEK AN AGREEMENT WITH THEIR CREDITORS, UNDER SUBSECTIONS (A)
TO (R) AND, FAILING THIS, TO ASK FOR THE OTHER RELIEF AFFORDED BY
SUBSECTION (S).  P. 184. 

THE FARMER-DEBTOR MAY OFFER TO PAY WHAT HE CAN, AND HE IS NOT TO BE
CHARGED WITH BAD FAITH IN TAKING THE COURSE FOR WHICH THE STATUTE
EXPRESSLY PROVIDES. 

3.  SECTION 75(I) OF THE BANKRUPTCY ACT IN PROVIDING THAT BEFORE
CONFIRMING PROPOSALS FOR COMPOSITION OR EXTENSION THE COURT MUST BE
SATISFIED THAT THE OFFER AND ITS ACCEPTANCE ARE IN GOOD FAITH AND HAVE
NOT BEEN MADE OR PROCURED BY FORBIDDEN MEANS OR EXCEPT AS PROVIDED BY
THE STATUTE, HITS AT SECRET ADVANTAGES TO FAVORED CREDITORS OR OTHER
IMPROPER OR FRAUDULENT CONDUCT.  P. 185. 

4.  A FARMER-DEBTOR, HAVING FAILED TO OBTAIN THE ACCEPTANCE UNDER
SEC. 75 OF THE BANKRUPTCY ACT, SUBSECTIONS (A) TO (R), BY THE REQUISITE
MAJORITY OF CREDITORS, OF A PROPOSAL FOR COMPOSITION OR EXTENSION OF
TIME TO PAY HIS DEBTS, FILED HIS AMENDED PETITION UNDER SUBSECTION (S)
PRAYING THAT HE BE ADJUDGED A BANKRUPT, THAT HIS PROPERTY BE APPRAISED,
THAT HIS EXEMPTIONS BE SET ASIDE, AND THAT HE BE PERMITTED TO RETAIN
POSSESSION OF HIS PROPERTY UNDER THE SUPERVISION OF THE COURT.  HELD,
THAT HE WAS ENTITLED TO BE SO ADJUDGED AND TO HAVE HIS PROCEEDING FOR
RELIEF ENTERTAINED AND HIS PROPERTY DEALT WITH IN ACCORDANCE WITH THAT
SUBSECTION; AND THAT THE COURT OF BANKRUPTCY ERRED IN DISMISSING THE
PETITION UPON THE GROUND THAT UNDER THE EVIDENCE THERE WAS NO
REASONABLE PROBABILITY OF HIS FINANCIAL REHABILITATION AND BECAUSE IN
THE JUDGE'S OPINION NO OFFER HAD BEEN MADE BY THE DEBTOR WHICH COULD BE
CONSTRUED AS AN OFFER IN GOOD FAITH FOR EXTENSION AND COMPOSITION.  P.
183. 

JOHN HANCOCK MUTUAL LIFE INSURANCE CO. V. BARTELS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 307 U.S. 617, TO REVIEW THE REVERSAL OF A DECREE
DISMISSING THE PETITION OF A FARMER-DEBTOR TO BE ADJUDGED A BANKRUPT
UNDER SEC. 75(S) OF THE BANKRUPTCY ACT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

IN THIS PROCEEDING BROUGHT BY A FARMER UNDER SEC. 75 OF THE
BANKRUPTCY ACT, THE DISTRICT COURT DISMISSED THE DEBTOR'S PETITION. 
THE CIRCUIT COURT OF APPEALS HELD THAT THIS ACTION WAS CONTRARY TO THE
REQUIREMENTS OF THE STATUTE AND DIRECTED THE PROCEEDING TO BE
REINSTATED.  100 F.2D 813.  BECAUSE OF CONFLICT IN THE RULINGS OF THE
COURT OF APPEALS OF THE FIFTH CIRCUIT, DUE TO THE DIFFERING VIEWS OF
THE JUDGES COMPOSING THE COURT IN THE CASES CITED, FN1  AND BECAUSE OF
THE IMPORTANCE OF THE QUESTION, WE GRANTED CERTIORARI, 307 U.S. 617. 

RESPONDENT BARTELS PRESENTED HIS PETITION TO THE DISTRICT COURT ON
DECEMBER 2, 1937, ASKING THAT HE BE AFFORDED AN OPPORTUNITY TO EFFECT A
COMPOSITION OR EXTENSION OF TIME TO PAY HIS DEBTS UNDER SEC. 75.  THE
COURT REFERRED THE MATTER TO A CONCILIATION COMMISSIONER, DIRECTING THE
DEBTOR TO APPEAR BEFORE THE COMMISSIONER AND TO SUBMIT TO SUCH ORDERS
AS MIGHT BE MADE IN PROCEEDINGS UNDER THAT SECTION.  A MEETING OF THE
CREDITORS WAS HELD ON DECEMBER 21, 1937, AT WHICH THE DEBTOR WAS
PRESENT AND WAS EXAMINED.  IT APPEARED THAT HIS DEBTS AMOUNTED TO ABOUT
$10,000 OF WHICH ABOUT $8,000(INCLUDING INTEREST AND ATTORNEY'S FEES)
WAS OWING TO THE JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY AND WAS
SECURED BY A LIEN UPON HIS HOME.  AS THE DEBTOR WAS UNABLE TO OBTAIN AN
AGREEMENT WITH A MAJORITY OF HIS CREDITORS IN NUMBER AND AMOUNT, HE
NOTIFIED THE COMMISSIONER THAT HE WOULD APPLY TO BE ADJUDGED A BANKRUPT
UNDER SUBSECTION (S) OF SEC. 75.  THAT APPLICATION WAS FILED ON JANUARY
10, 1938.  THE DEBTOR ASKED THAT "HIS PROPERTY BE APPRAISED," THAT "HIS
EXEMPTION BE SET ASIDE TO HIM" AND THAT HE BE PERMITTED "TO RETAIN
POSSESSION OF HIS PROPERTY UNDER THE SUPERVISION OF THE COURT."  ON THE
SAME DAY, THE DISTRICT JUDGE ENTERED AN ORDER ADJUDGING THE DEBTOR A
BANKRUPT AND REQUIRING FURTHER PROCEEDINGS BEFORE THE COMMISSIONER
ACTING AS REFEREE UNDER SUBSECTION (S). 

ON MARCH 23, 1938, THE JOHN HANCOCK COMPANY MOVED TO SET ASIDE THE
ADJUDICATION AND TO DISMISS THE DEBTOR'S PETITION ON THE GROUND THAT
THE DEBTOR WAS NOT ENTITLED TO AVAIL HIMSELF OF THE PROVISIONS OF
SUBSECTION (S); THAT HE HAD NOT PRESENTED ANY FEASIBLE PLAN FOR A
COMPOSITION AND EXTENSION OF HIS DEBTS, AND THAT HIS PETITION "WAS NOT
FILED IN GOOD FAITH" OR "WITH ANY HOPE OR EXPECTATION OF WORKING OUT
HIS DEBTS AND PAYING UP HIS DELINQUENCIES BUT APPARENTLY FOR THE SOLE
PURPOSE OF HINDERING AND DELAYING HIS CREDITORS."  THE COMPANY ALSO
ALLEGED THAT AT THE FAIR MARKET VALUE OF THE REAL PROPERTY HELD BY IT
AS SECURITY THERE WAS NO EQUITY FOR THE DEBTOR AND THAT THE COMPANY
WOULD SUFFER IRREPARABLE LOSS UNLESS THE ADJUDICATION WAS SET ASIDE AND
THE PROCEEDING DISMISSED.  THE DEBTOR DENIED THESE ALLEGATIONS AND
ALLEGED THAT THE LAND ON WHICH THE COMPANY HAD A LIEN WAS WORTH
UNIMPROVED MORE THAN $7,000 AND THAT THE IMPROVEMENTS WERE WORTH $6,000
AND THAT HE THUS HAD A LARGE EQUITY WHICH WOULD BE LOST TO HIM UNLESS
HE OBTAINED THE BENEFITS SOUGHT UNDER THE APPLICABLE LAW. 

AT THE HEARING OF THE MOTION ON APRIL 5, 1938, THE COURT RECEIVED THE
EVIDENCE PREVIOUSLY TAKEN BEFORE THE COMMISSIONER AND ADDITIONAL
TESTIMONY.  THEREUPON THE MOTION WAS GRANTED.  THE DISTRICT JUDGE SAID
IN HIS OPINION THAT THE DEBTOR HAD NOT MADE ANY PROPOSAL WHICH COULD BE
CONSTRUED AS A "GOOD FAITH OFFER FOR AN EXTENSION OR COMPOSITION" AND
HENCE THE DEBTOR WAS NOT ENTITLED TO BE ADJUDGED A BANKRUPT UNDER
SUBSECTION (S).  THE DISTRICT JUDGE OBSERVED THAT THE EVIDENCE WAS
CONFLICTING AS TO THE VALUE OF THE LAND (100 ACRES); THAT, SEPARATING
THE LAND FROM ITS IMPROVEMENTS, CERTAIN OF THE DEBTOR'S WITNESSES
PLACED ITS VALUE AT $70 AN ACRE AND THE IMPROVEMENTS AT $5,000 OR
$6,000, WHILE WITNESSES FOR THE CREDITOR VALUED THE LAND AT ABOUT $40
AN ACRE AND THE IMPROVEMENTS AT ABOUT $2,000.  HE THOUGHT THAT THERE
WAS NO REASONABLE PROBABILITY OF THE PROPERTY BEING SOLD FOR ENOUGH TO
GIVE ANY SUBSTANTIAL EQUITY TO THE DEBTOR AND ACCORDINGLY FOUND THAT
THERE WAS NO REASONABLE PROBABILITY OF THE DEBTOR'S FINANCIAL
REHABILITATION.  IN THAT VIEW THE DISTRICT JUDGE CONCLUDED "THAT THE
ORDER ADJUDICATING THE DEBTOR A BANKRUPT UNDER SUBSECTION (S) WAS
IMPROPERLY ENTERED AND SHOULD BE SET ASIDE AND THE CAUSE DISMISSED." 

WE THINK THAT THE DISTRICT JUDGE FAILED TO FOLLOW THE MANDATE OF THE
STATUTE AND THAT THE CIRCUIT COURT OF APPEALS WAS RIGHT IN REVERSING
THE JUDGMENT AND ORDERING THE PROCEEDING TO BE REINSTATED. 

SUBSECTION (S) OF SEC. 75 AS AMENDED BY THE ACT OF AUGUST 28, 1935,
FN2  PRESCRIBES A DEFINITE COURSE OF PROCEDURE.  THAT SUBSECTION
APPLIES EXPLICITLY TO A CASE OF A FARMER WHO HAS FAILED TO OBTAIN THE
ACCEPTANCE OF A MAJORITY IN NUMBER AND AMOUNT OF ALL CREDITORS WHOSE
CLAIMS ARE AFFECTED BY A PROPOSAL FOR A COMPOSITION OR AN EXTENSION OF
TIME TO PAY HIS DEBTS.  THAT WAS BARTELS' SITUATION.  PROVISIONS FOR
PROCEEDINGS BY A FARMER TO OBTAIN A COMPOSITION OR EXTENSION, WHEN HE
IS INSOLVENT OR UNABLE TO PAY HIS DEBTS AS THEY MATURE, ARE FOUND IN
SUBSECTIONS (A) TO (R) OF SEC. 75.  FOR THAT RELIEF BARTELS HAD
PRESENTED HIS PETITION UNDER SUBSECTION (C) AND THE DISTRICT COURT HAD
APPROVED THE PETITION AS PROPERLY FILED.  ACCORDING TO THE REPORT OF
THE CONCILIATION COMMISSIONER, TO WHOM THE MATTER WAS REFERRED
ACCORDING TO THE STATUTE, BARTELS HAD APPEARED AT THE MEETING OF THE
CREDITORS AND HAD SUBMITTED TO A DETAILED EXAMINATION CONCERNING HIS
FINANCIAL CONDITION.  HE PROPOSED TO SELL CERTAIN PROPERTY AND TO APPLY
THE PROCEEDS TO THE PAYMENT IN PART OF THE AMOUNTS DUE TO THE JOHN
HANCOCK COMPANY, THE SECURED CREDITOR.  HE SUCCEEDED IN OBTAINING AN
AGREEMENT WITH CERTAIN UNSECURED CREDITORS FOR AN EXTENSION BUT THE
SECURED CREDITOR REFUSED CONSENT, AS BARTELS COULD NOT MEET ALL HIS
ARREARS.  BARTELS WAS THUS PRECISELY IN THE CONDITION PRESCRIBED IN
SUBSECTION (S). 

THE SUBSECTIONS OF SEC. 75 WHICH REGULATE THE PROCEDURE IN RELATION
TO THE EFFORT OF A FARMER-DEBTOR TO OBTAIN A COMPOSITION OR EXTENSION
CONTAIN NO PROVISION FOR A DISMISSAL BECAUSE OF THE ABSENCE OF A
REASONABLE PROBABILITY OF THE FINANCIAL REHABILITATION OF THE DEBTOR. 
FN3  NOR IS THERE ANYTHING IN THESE SUBSECTIONS WHICH WARRANTS THE
IMPUTATION OF LACK OF GOOD FAITH TO A FARMER-DEBTOR BECAUSE OF THAT
PLIGHT.  THE PLAIN PURPOSE OF SEC. 75 WAS TO AFFORD RELIEF TO SUCH
DEBTORS WHO FOUND THEMSELVES IN ECONOMIC DISTRESS HOWEVER SEVERE, BY
GIVING THEM THE CHANCE TO SEEK AN AGREEMENT WITH THEIR CREDITORS
(SUBSECTIONS (A) TO (R)) AND, FAILING THIS, TO ASK FOR THE OTHER RELIEF
AFFORDED BY SUBSECTION (S).  THE FARMERDEBTOR MAY OFFER TO PAY WHAT HE
CAN, AS BARTELS DID, AND HE IS NOT TO BE CHARGED WITH BAD FAITH IN
TAKING THE COURSE FOR WHICH THE STATUTE EXPRESSLY PROVIDES.  THE ONLY
REFERENCE IN SEC. 75 TO GOOD FAITH IS FOUND IN SUBSECTION (I), WHICH
RELATES SOLELY TO THE CONFIRMATION OF PROPOSALS FOR COMPOSITION OR
EXTENSION WHEN THE COURT MUST BE SATISFIED THAT THE OFFER AND ITS
ACCEPTANCE ARE IN GOOD FAITH AND HAVE NOT BEEN MADE OR PROCURED BY
FORBIDDEN MEANS OR EXCEPT AS PROVIDED IN THE STATUTE.  THAT PROVISION
MANIFESTLY HITS AT SECRET ADVANTAGES TO FAVORED CREDITORS OR OTHER
IMPROPER OR FRAUDULENT CONDUCT. 

AS BARTELS' CASE THUS FELL WITHIN SUBSECTION (S), HE AMENDED HIS
PETITION AND ASKED TO BE ADJUDICATED A BANKRUPT AS THAT SUBSECTION
PERMITS.  HE WAS SO ADJUDICATED.  BARTELS THEN ASKED, ALSO AS PROVIDED
IN SUBSECTION (S), THAT HIS PROPERTY BE APPRAISED, THAT HIS EXEMPTIONS
BE SET ASIDE TO HIM AS PROVIDED BY STATE LAW, AND THAT HE BE ALLOWED TO
RETAIN POSSESSION OF HIS PROPERTY UNDER THE SUPERVISION OF THE COURT,
THAT IS, SUBJECT TO SUCH ORDERS AS THE COURT MIGHT MAKE IN ACCORDANCE
WITH THE STATUTE.  THE COURT FAILED TO TAKE THAT ACTION.  INSTEAD OF
HAVING THE PROPERTY APPRAISED, THE COURT RECEIVED CONFLICTING TESTIMONY
AS TO VALUE, DISCUSSED THE CHANCES OF THE DEBTOR'S REHABILITATION AND
DISMISSED THE PETITION AND ALL PROCEEDINGS THEREUNDER. 

THE PROCEDURE UNDER SUBSECTION (S) IS INTENDED TO PROTECT ALL
INTERESTS.  IT PROVIDES, IN PARAGRAPH (1), THAT AFTER THE VALUE OF THE
DEBTOR'S PROPERTY HAS BEEN FIXED BY THE PRESCRIBED APPRAISAL, THE
REFEREE SHALL SET ASIDE THE DEBTOR'S UNENCUMBERED EXEMPTIONS AND DIRECT
HIS RETENTION OF POSSESSION OF THE REST OF HIS PROPERTY SUBJECT TO ALL
LIENS AND TO THE COURT'S SUPERVISION AND CONTROL.  UNDER PARAGRAPH (2),
IF THERE HAS BEEN COMPLIANCE WITH THE STATUTORY CONDITIONS, THE COURT
IS DIRECTED TO STAY ALL PROCEEDINGS AGAINST THE DEBTOR OR HIS PROPERTY
FOR A PERIOD OF THREE YEARS, AND DURING THAT TIME THE DEBTOR MAY RETAIN
POSSESSION OF ALL OR PART OF HIS PROPERTY SUBJECT TO THE COURT'S
CONTROL, PROVIDED HE PAYS A REASONABLE RENTAL SEMIANNUALLY.  THAT
RENTAL IS TO BE PAID INTO COURT AND IS TO BE USED FIRST FOR THE PAYMENT
OF TAXES AND THE UPKEEP OF THE PROPERTY AND THE REMAINDER IS TO BE
DISTRIBUTED AMONG THE CREDITORS AS THEIR INTERESTS MAY APPEAR.  IF THE
COURT FINDS IT NECESSARY TO PROTECT THE CREDITORS "FROM LOSS BY THE
ESTATE," OR "TO CONSERVE THE SECURITY," THE COURT MAY ORDER ANY
UNEXEMPT PERISHABLE PROPERTY OF THE DEBTOR, OR ANY UNEXEMPT PERSONAL
PROPERTY NOT REASONABLY NECESSARY FOR THE FARMING OPERATIONS OF THE
DEBTOR, TO BE SOLD AT PUBLIC OR PRIVATE SALE, AND THE COURT, IN
ADDITION TO THE PRESCRIBED RENTAL, MAY REQUIRE PAYMENTS TO BE MADE BY
THE DEBTOR ON THE PRINCIPAL OF HIS DEBTS IN THE MANNER SET FORTH.  THEN
IT IS PROVIDED, IN PARAGRAPH (3), THAT AT THE END OF THE THREE-YEAR
PERIOD, OR AT ANY TIME BEFORE THAT, THE DEBTOR MAY PAY INTO COURT THE
APPRAISED VALUE OF THE PROPERTY OF WHICH HE RETAINS POSSESSION,
"INCLUDING THE AMOUNT OF ENCUMBRANCES ON HIS EXEMPTIONS, UP TO THE
AMOUNT OF THE APPRAISAL, LESS THE AMOUNT PAID ON PRINCIPAL," FOR
APPROPRIATE DISTRIBUTION TO HIS CREDITORS.  THERE IS THE PROVISO THAT
UPON THE REQUEST OF ANY CREDITOR, OR OF THE DEBTOR, THE COURT SHALL
CAUSE THE DEBTOR'S PROPERTY TO BE REAPPRAISED, OR IN ITS DISCRETION SET
A DATE FOR HEARING, AND THEREAFTER FIX THE VALUE OF THE PROPERTY IN
ACCORDANCE WITH THE EVIDENCE, AND THE DEBTOR SHALL THEN PAY THE VALUE
SO ARRIVED AT INTO COURT, LESS PAYMENTS MADE ON THE PRINCIPAL, FOR
DISTRIBUTION TO HIS CREDITORS.  IN THAT WAY, BY THE ORDER OF THE COURT,
THE DEBTOR MAY REGAIN FULL POSSESSION AND TITLE OF SUCH PROPERTY, THE
ASCERTAINED VALUE OF WHICH HAS THUS BEEN DEVOTED TO THE PAYMENT OF HIS
DEBTS.  THERE IS THE FURTHER PROVISO, FOR THE PROTECTION OF SECURED
CREDITORS, THAT UPON REQUEST IN WRITING BY ANY SECURED CREDITOR THE
COURT SHALL ORDER THE PROPERTY UPON WHICH THE SECURED CREDITOR HAS A
LIEN TO BE SOLD AT PUBLIC AUCTION.  SEE WRIGHT V. VINTON BRANCH, SUPRA,
PP. 458-461.  THE DEBTOR IS TO HAVE NINETY DAYS TO REDEEM THE PROPERTY
SO SOLD BY PAYING THE AMOUNT FOR WHICH IT WAS SOLD, WITH INTEREST, INTO
COURT, AND HE MAY APPLY FOR HIS DISCHARGE AS PROVIDED IN THE ACT.  IF,
HOWEVER, THE DEBTOR AT ANY TIME FAILS TO COMPLY WITH THE PROVISIONS OF
THE SECTION OR WITH ANY ORDERS OF THE COURT MADE THEREUNDER, OR IS
UNABLE TO REFINANCE HIMSELF WITHIN THREE YEARS, THE COURT MAY ORDER THE
APPOINTMENT OF A TRUSTEE AND DIRECT THE PROPERTY TO BE SOLD OR
OTHERWISE DISPOSED OF AS PROVIDED IN THE ACT. 

THE SCHEME OF THE STATUTE IS DESIGNED TO PROVIDE AN ORDERLY PROCEDURE
SO AS TO GIVE WHATEVER RELIEF MAY PROPERLY BE AFFORDED TO THE
DISTRESSED FARMER-DEBTOR, WHILE PROTECTING THE INTERESTS OF HIS
CREDITORS BY ASSURING THE FAIR APPLICATION OF WHATEVER PROPERTY THE
DEBTOR HAS TO THE PAYMENT OF THEIR CLAIMS, THE PRIORITIES AND LIENS OF
SECURED CREDITORS BEING PRESERVED.  SEE WRIGHT V. VINTON BRANCH, SUPRA;
ADAIR V. BANK OF AMERICA ASSN., 303 U.S. 350, 354-357; WRIGHT V. UNION
CENTRAL LIFE INSURANCE CO., 304 U.S. 502, 516, 517. 

WE ARE NOT HERE CONCERNED WITH QUESTIONS WHICH MAY ARISE IN THE
COURSE OF THE ADMINISTRATION UNDER THE STATUTE, BUT MERELY WITH THE
DUTY TO FOLLOW THE PROCEDURE WHICH THE STATUTE DEFINES AND THE DISTRICT
COURT FAILED TO OBSERVE.  WE HOLD THAT ON HIS AMENDED PETITION INVOKING
SUBSECTION (S) BARTELS WAS ENTITLED TO BE ADJUDGED A BANKRUPT AND TO
HAVE HIS PROCEEDING FOR RELIEF ENTERTAINED AND HIS PROPERTY DEALT WITH
IN ACCORDANCE WITH THAT SUBSECTION. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS REVERSING THAT OF THE
DISTRICT COURT AND DIRECTING THE PROCEEDING TO BE REINSTATED IS
AFFIRMED AND THE CAUSE IS REMANDED TO THE DISTRICT COURT WITH DIRECTION
TO PROCEED IN CONFORMITY WITH THIS OPINION.  AFFIRMED. 

FN1  SEE BAXTER V. SAVINGS BANK OF UTICA, 92 F.2D 404; IN RE
HENDERSON, 100 F.2D 820; WILSON V. ALLIANCE LIFE INSURANCE CO., 102
F.2D 365. 

FN2  49 STAT. 943; WRIGHT V. VINTON BRANCH, 300 U.S. 440. 

FN3  WHAT IS SAID UPON THIS POINT IN NOTE 6 IN WRIGHT V. VINTON
BRANCH, 300 U.S. 440, 462, WAS NOT ESSENTIAL TO THE OPINION IN THAT
CASE AND IS NOT SUPPORTED BY THE TERMS OF THE STATUTE. 
..END :













UNITED STATES V. BORDEN CO., 308 U.S. 188 


NO. 397.  ARGUED NOVEMBER 15, 1939.  - DECIDED DECEMBER 4, 1939.  - 28
F.2D 177, IN PART, REVERSED. 


1.  A JUDGMENT QUASHING A COUNT UPON THE GROUND OF DUPLICITY IS NOT
APPEALABLE TO THIS COURT UNDER THE CRIMINAL APPEALS ACT.  P. 193. 

2.  THE CONSTRUCTION OF AN INDICTMENT BY THE DISTRICT COURT BINDS
THIS COURT ON AN APPEAL UNDER THE CRIMINAL APPEALS ACT.  P. 194. 

3.  A DECISION OF THE DISTRICT COURT HOLDING THAT AN INDICTMENT
FAILED TO CHARGE AN OFFENSE UNDER THE SHERMAN ANTI-TRUST ACT BECAUSE OF
THE EFFECT ON THAT ACT OF LATER STATUTES, HELD A CONSTRUCTION OF THE
SHERMAN ACT AND REVIEWABLE UNDER THE CRIMINAL APPEALS ACT.  P. 195. 

4.  REPEALS BY IMPLICATION ARE NOT FAVORED.  WHEN THERE ARE TWO ACTS
UPON THE SAME SUBJECT, EFFECT SHOULD BE GIVEN TO BOTH IF POSSIBLE.  P.
198. 

5.  THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937 DOES NOT OPERATE
TO REPEAL THE SHERMAN ANTI-TRUST ACT IN ITS APPLICATION TO AGREEMENTS
OF PRODUCERS, DISTRIBUTORS AND OTHERS, RESTRICTING INTERSTATE COMMERCE
IN MILK, WHEN SUCH AGREEMENTS ARE NOT PARTICIPATED IN OR DIRECTED BY
THE SECRETARY OF AGRICULTURE IN PURSUANCE OF THE FORMER ACT.  PP. 196
202. 

WITH RESPECT TO INTERSTATE COMMERCE IN AGRICULTURAL COMMODITIES OR
THEIR PRODUCTS, AN AGREEMENT MADE WITH THE SECRETARY AS A PARTY, OR AN
ORDER MADE BY HIM, OR AN ARBITRATION AWARD OR AGREEMENT APPROVED BY
HIM, PURSUANT TO THE AUTHORITY CONFERRED BY THE AGRICULTURAL ACT AND
WITHIN THE TERMS OF THE IMMUNITY DESCRIBED BY SECS. 8(B) AND 3(D),
WOULD BE A DEFENSE TO A PROSECUTION UNDER THE SHERMAN ACT TO THE EXTENT
THAT THE PROSECUTION SOUGHT TO PENALIZE WHAT WAS THUS VALIDLY AGREED
UPON OR DIRECTED BY THE SECRETARY.  FURTHER THAN THAT THE AGRICULTURAL
ACT DOES NOT GO. 

6.  A LICENSE ISSUED BY THE SECRETARY OF AGRICULTURE WITH RESPECT TO
THE MARKETING OF MILK IN A GIVEN AREA IS NOT A DEFENSE TO AN INDICTMENT
UNDER THE SHERMAN ACT FOR CONSPIRACIES IN RESTRAINT OF THAT COMMERCE,
ALLEGED TO HAVE BEEN CONTINUED AFTER THE LICENSE HAD EXPIRED.  P. 202. 

7.  AN ORDER ISSUED UNDER THE AGRICULTURAL MARKETING AGREEMENT ACT
REGULATING MARKETING OF MILK IS NOT A DEFENSE TO AN INDICTMENT OF
PRODUCERS, DISTRIBUTORS AND OTHERS UNDER THE SHERMAN ACT CHARGING
CONSPIRACIES ENGAGED IN BEFORE THE PERIOD COVERED BY THE ORDER.  P.
202. 

8.  THE CAPPER-VOLSTEAD ACT, IN AUTHORIZING PRODUCERS OF AGRICULTURAL
PRODUCTS, INCLUDING DAIRYMEN, TO ACT TOGETHER IN COLLECTIVELY
PROCESSING, PREPARING FOR MARKET, HANDLING AND MARKETING THEIR
PRODUCTS, IN INTERSTATE AND FOREIGN COMMERCE, AND TO HAVE MARKETING
AGENCIES IN COMMON AND MAKE NECESSARY AGREEMENTS TO EFFECT THESE
PURPOSES, DID NOT AUTHORIZE A CONSPIRACY OF DAIRYMEN WITH DISTRIBUTORS,
LABOR OFFICIALS, MUNICIPAL OFFICIALS, AND OTHERS, TO MAINTAIN
ARTIFICIAL AND NON-COMPETITIVE PRICES TO BE PAID TO ALL PRODUCERS FOR
ALL FLUID MILK PRODUCED IN ILLINOIS AND NEIGHBORING STATES AND MARKETED
IN THE CHICAGO AREA, WHICH WOULD COMPEL INDEPENDENT DISTRIBUTORS TO
EXACT A LIKE PRICE FROM THEIR CUSTOMERS, AND WOULD CONTROL THE SUPPLY
OF FLUID MILK PERMITTED TO BE BROUGHT TO THE CITY.  P. 203. 

9.  UNDER SEC. 2 OF THE CAPPER-VOLSTEAD ACT, THE SECRETARY OF
AGRICULTURE IS AUTHORIZED TO DETERMINE, SUBJECT TO JUDICIAL REVIEW,
WHETHER ANY SUCH COOPERATIVE ASSOCIATION MONOPOLIZES OR RESTRAINS
INTERSTATE TRADE TO SUCH AN EXTENT THAT THE PRICE OF ANY AGRICULTURAL
PRODUCT IS UNDULY ENHANCED, AND TO ISSUE A CEASE AND DESIST ORDER.  BUT
THIS QUALIFYING PROCEDURE WAS NOT INTENDED TO REPLACE, POSTPONE, OR
PREVENT PROSECUTION UNDER SEC. 1 OF THE SHERMAN ACT FOR THE PUNISHMENT
OF CONSPIRACIES BY PRODUCERS AND OTHERS SUCH AS ARE DESCRIBED IN THE
LAST PRECEDING PARAGRAPH.  P. 205. 

10.  WHERE THE DISTRICT COURT HAS BASED ITS DECISION ON A PARTICULAR
CONSTRUCTION OF THE UNDERLYING STATUTE, THE REVIEW HERE UNDER THE
CRIMINAL APPEALS ACT IS CONFINED TO THE QUESTION OF THE PROPRIETY OF
THAT CONSTRUCTION.  DISTINGUISHING UNITED STATES V. CURTISS-WRIGHT
CORP., 299 U.S. 304.  P. 206. 

UNITED STATES V. BORDEN COMPANY ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A JUDGMENT OF THE DISTRICT COURT SUSTAINING DEMURRERS AND
DISMISSING AN INDICTMENT CHARGING COMBINATION AND CONSPIRACY IN
VIOLATION OF SEC. 1 OF THE SHERMAN ANTI-TRUST ACT.  AS TO ONE OF THE
COUNTS, THE APPEAL IS DISMISSED. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE GOVERNMENT APPEALS FROM A JUDGMENT OF THE DISTRICT COURT
SUSTAINING DEMURRERS AND DISMISSING AN INDICTMENT CHARGING COMBINATION
AND CONSPIRACY IN VIOLATION OF SEC. 1 OF THE SHERMAN ANTI-TRUST ACT. 
28 F.SUPP.  177. 

THE TRADE AND COMMERCE ALLEGED TO BE INVOLVED IS THE TRANSPORTATION
TO THE CHICAGO MARKET OF FLUID MILK PRODUCED ON DAIRY FARMS IN
ILLINOIS, INDIANA, MICHIGAN AND WISCONSIN AND THE DISTRIBUTION OF THE
MILK IN THAT MARKET.  THE GOVERNMENT DIVIDES THE DEFENDANTS INTO FIVE
GROUPS, - (1) DISTRIBUTORS AND ALLIED GROUPS WHICH INCLUDE A NUMBER OF
CORPORATIONS DESCRIBED AS MAJOR DISTRIBUTORS AND THEIR OFFICERS AND
AGENTS, THE ASSOCIATED MILK DEALERS, INC., A TRADE ASSOCIATION OF MILK
DISTRIBUTORS, AND ITS OFFICERS AND AGENTS, AND THE MILK DEALERS BOTTLE
EXCHANGE, A CORPORATION CONTROLLED BY THE MAJOR DISTRIBUTORS; (2) THE
PURE MILK ASSOCIATION, A COOPERATIVE ASSOCIATION OF MILK PRODUCERS
INCORPORATED IN ILLINOIS, AND ITS OFFICERS AND AGENTS; (3) THE MILK
WAGON DRIVERS UNION, LOCAL 753, ENGAGED IN THE DISTRIBUTION OF MILK IN
CHICAGO, AND CERTAIN LABOR OFFICIALS; (4) MUNICIPAL OFFICIALS,
INCLUDING THE PRESIDENT OF THE BOARD OF HEALTH OF CHICAGO AND CERTAIN
SUBORDINATE OFFICIALS; (5) TWO PERSONS WHO ARBITRATED A DISPUTE BETWEEN
THE MAJOR DISTRIBUTORS AND THE PURE MILK ASSOCIATION, FIXING THE PRICE
OF MILK TO BE PAID TO THE MEMBERS OF THE ASSOCIATION. 

THE INDICTMENT, WHICH WAS FILED IN NOVEMBER, 1938, CONTAINS FOUR
COUNTS.  THE SEVERAL DEFENDANTS CHALLENGED IT BY DEMURRERS AND MOTIONS
TO QUASH ON VARIOUS GROUNDS.  THE DISTRICT COURT HELD WITH RESPECT TO
COUNTS ONE, TWO AND FOUR, THAT THE PRODUCTION AND MARKETING OF
AGRICULTURAL PRODUCTS, INCLUDING MILK, ARE REMOVED FROM THE PURVIEW OF
THE SHERMAN ACT BY THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937(50
STAT. 246); ALSO WITH RESPECT TO ALL FOUR COUNTS, ACCORDING TO THE
FORMAL TERMS OF ITS JUDGMENT, THAT THE PURE MILK ASSOCIATION, AS AN
AGRICULTURAL COOPERATIVE ASSOCIATION, ITS OFFICERS AND AGENTS, ARE
EXEMPT FROM PROSECUTION UNDER SEC. 1 OF THE SHERMAN ACT BY SEC. 6 OF
THE CLAYTON ACT (15 U.S.C. 17), SECS. 1 AND 2 OF THE CAPPER-VOLSTEAD
ACT (7 U.S.C. 291, 292), AND THE AGRICULTURAL MARKETING AGREEMENT ACT. 
WITH RESPECT TO COUNT THREE, THE DISTRICT COURT HELD THAT IT WAS
DUPLICITOUS, IN THE VIEW THAT IT CHARGED SEVERAL SEPARATE CONSPIRACIES
AND ALSO THAT IT DID NOT DEFINITELY CHARGE A RESTRAINT OF INTERSTATE
COMMERCE. 

THE JUDGMENT EXPRESSLY OVERRULED THE DEMURRERS AND MOTIONS TO QUASH
SO FAR AS THEY CHALLENGED THE CONSTITUTIONALITY OF THE SHERMAN ACT OR
THE SUFFICIENCY OF THE ALLEGATIONS OF UNLAWFUL CONSPIRACY, AND ALSO SO
FAR AS IT WAS CONTENDED THAT INTERSTATE COMMERCE WAS NOT INVOLVED IN
COUNTS ONE, TWO AND FOUR.  THE COURT ADDED THAT IT OVERRULED ALL THE
DEFENDANTS' CONTENTIONS WHICH IT HAD NOT SPECIFICALLY OVERRULED OR
SUSTAINED.  THE JUDGMENT ENDS BY DISMISSING THE INDICTMENT AS TO ALL
DEFENDANTS. 

THE FIRST QUESTION PRESENTED CONCERNS OUR JURISDICTION.  THE
EXCEPTIONAL RIGHT OF APPEAL GIVEN TO THE GOVERNMENT BY THE CRIMINAL
APPEALS ACT IS STRICTLY LIMITED TO THE INSTANCES SPECIFIED.  FN1 THE
PROVISION INVOKED HERE IS THE ONE WHICH PERMITS REVIEW WHERE A DECISION
QUASHING OR SUSTAINING A DEMURRER TO AN INDICTMENT OR ANY OF ITS COUNTS
IS BASED UPON THE "CONSTRUCTION OF THE STATUTE UPON WHICH THE
INDICTMENT IS FOUNDED."  THE DECISION BELOW WAS NOT PREDICATED UPON
INVALIDITY OF THE STATUTE. 

THE ESTABLISHED PRINCIPLES GOVERNING OUR REVIEW ARE THESE:  (1)
APPEAL DOES NOT LIE FROM A JUDGMENT WHICH RESTS ON THE MERE
DEFICIENCIES OF THE INDICTMENT AS A PLEADING, AS DISTINGUISHED FROM A
CONSTRUCTION OF THE STATUTE WHICH UNDERLIES THE INDICTMENT.  (2) NOR
WILL AN APPEAL LIE IN A CASE WHERE THE DISTRICT COURT HAS CONSIDERED
THE CONSTRUCTION OF THE STATUTE BUT HAS ALSO RESTED ITS DECISION UPON
THE INDEPENDENT GROUND OF A DEFECT IN PLEADING WHICH IS NOT SUBJECT TO
OUR EXAMINATION.  IN THAT CASE WE CANNOT DISTURB THE JUDGMENT AND THE
QUESTION OF CONSTRUCTION BECOMES ABSTRACT.  (3) THIS COURT MUST ACCEPT
THE CONSTRUCTION GIVEN TO THE INDICTMENT BY THE DISTRICT COURT AS THAT
IS A MATTER WE ARE NOT AUTHORIZED TO REVIEW.  (4) WHEN THE DISTRICT
COURT HOLDS THAT THE INDICTMENT, NOT MERELY BECAUSE OF SOME DEFICIENCY
IN PLEADING BUT WITH RESPECT TO THE SUBSTANCE OF THE CHARGE, DOES NOT
ALLEGE A VIOLATION OF THE STATUTE UPON WHICH THE INDICTMENT IS FOUNDED,
THAT IS NECESSARILY A CONSTRUCTION OF THAT STATUTE.  (5) WHEN THE
DISTRICT COURT HAS RESTED ITS DECISION UPON THE CONSTRUCTION OF THE
UNDERLYING STATUTE THIS COURT IS NOT AT LIBERTY TO GO BEYOND THE
QUESTION OF THE CORRECTNESS OF THAT CONSTRUCTION AND CONSIDER OTHER
OBJECTIONS TO THE INDICTMENT.  THE GOVERNMENT'S APPEAL DOES NOT OPEN
THE WHOLE CASE. 

FIRST.  THE FIRST TWO OF THESE PRINCIPLES, AS THE GOVERNMENT
CONCEDES, PRECLUDE OUR REVIEW OF THE DECISION BELOW AS TO COUNT THREE. 
FOR THAT COUNT WAS HELD BAD UPON THE INDEPENDENT GROUND THAT IT IS
DEFECTIVE AS A PLEADING, BEING DUPLICITOUS AND ALSO LACKING IN
DEFINITENESS.  UNITED STATES V. KEITEL, 211 U.S. 370, 397-399; UNITED
STATES V. CARTER, 231 U.S. 492, 493; UNITED STATES V. HASTINGS, 296
U.S. 188, 192-194.  THE APPEAL AS TO COUNT THREE MUST BE DISMISSED. 

SECOND.  AFTER A GENERAL DESCRIPTION OF THE AVERMENTS OF THE
INDICTMENT, WHICH WAS EXPLICITLY FOUNDED ON SEC. 1 OF THE SHERMAN ACT,
THE DISTRICT COURT CONSTRUED COUNTS ONE, TWO AND FOUR AS FOLLOWS: 

"COUNT 1 CHARGES A CONSPIRACY 'TO ARBITRARILY FIX, MAINTAIN AND
CONTROL ARTIFICIAL AND NON-COMPETITIVE PRICES TO BE PAID TO ALL
PRODUCERS BY ALL DISTRIBUTORS FOR ALL FLUID MILK PRODUCED ON APPROVED
DAIRY FARMS LOCATED IN THE STATES OF ILLINOIS, INDIANA, MICHIGAN AND
WISCONSIN', AND SHIPPED TO CHICAGO." 

"COUNT 2 CHARGES A CONSPIRACY 'TO FIX AND MAINTAIN BY COMMON AND
CONCERTED ACTION, UNIFORM, ARBITRARY AND NON-COMPETITIVE PRICES FOR THE
SALE BY THE DISTRIBUTORS IN THE CITY OF CHICAGO OF FLUID MILK SHIPPED
INTO THE SAID CITY FROM THE STATES OF ILLINOIS, INDIANA, MICHIGAN AND
WISCONSIN.'" 

"COUNT 4 CHARGES A CONSPIRACY 'TO RESTRICT, LIMIT AND CONTROL AND TO
RESTRAIN AND OBSTRUCT THE SUPPLY OF FLUID MILK MOVING IN THE CHANNELS
OF INTERSTATE COMMERCE INTO THE CITY OF CHICAGO FROM THE STATES OF
ILLINOIS, INDIANA, MICHIGAN AND WISCONSIN.'" 

THE DISTRICT COURT FURTHER SUMMARIZED THE ALLEGATIONS IN THESE COUNTS
AS TO THE METHODS BY WHICH THE ALLEGED CONSPIRACIES WERE INTENDED TO BE
EFFECTED.  28 F.SUPP.  PP. 179-181.  THIS CONSTRUCTION OF THE
INDICTMENT IS BINDING UPON THIS COURT ON THIS APPEAL.  UNITED STATES V.
PATTEN, 226 U.S. 525, 535, 540; UNITED STATES V. COLGATE & CO., 250
U.S. 300, 301; UNITED STATES V. SCHRADER'S SON, 252 U.S. 85, 98; UNITED
STATES V. YUGINOVICH, 256 U.S. 450, 461; UNITED STATES V. HASTINGS,
SUPRA, P. 192. 

THIRD.  THE DISTRICT COURT, THUS CONSTRUING COUNTS ONE, TWO AND FOUR,
HELD AS A MATTER OF SUBSTANCE THAT, BECAUSE OF THE EFFECT OF THE LATER
STATUTES, THESE COUNTS DID NOT CHARGE AN OFFENSE UNDER SEC. 1 OF THE
SHERMAN ACT.  THIS WAS NECESSARILY A CONSTRUCTION OF THE SHERMAN ACT. 
UNITED STATES V. PATTEN, SUPRA; UNITED STATES V. BIRDSALL, 233 U.S.
223, 230; UNITED STATES V. KAPP, 302 U.S. 214, 217.  WE ARE NOT
IMPRESSED WITH THE ARGUMENT THAT THE COURT SIMPLY CONSTRUED THE LATER
STATUTES.  THE EFFECT OF THOSE STATUTES WAS CONSIDERED IN DETERMINING
WHETHER THE SHERMAN ACT HAS BEEN SO MODIFIED AND LIMITED THAT IT NO
LONGER APPLIES TO SUCH COMBINATIONS AND CONSPIRACIES AS ARE CHARGED IN
COUNTS ONE, TWO AND FOUR.  THUS THE SHERMAN ACT WAS NOT THE LESS
CONSTRUED BECAUSE IT WAS CONSTRUED IN THE LIGHT OF THE SUBSEQUENT
LEGISLATION. 

WE HAVE JURISDICTION UNDER THE CRIMINAL APPEALS ACT TO DETERMINE
WHETHER THE CONSTRUCTION THUS PLACED UPON THE SHERMAN ACT IS CORRECT. 

FOURTH.  IN REACHING ITS CONCLUSION, THE DISTRICT COURT REFERRED TO
SEC. 6 OF THE CLAYTON ACT, SECS. 1 AND 2 OF THE CAPPER-VOLSTEAD ACT,
AND THE AGRICULTURAL ADJUSTMENT ACT OF 1933, AS AMENDED IN 1935, AND AS
REENACTED AND AMENDED BY THE AGRICULTURAL MARKETING AGREEMENT ACT OF
1937. 

WITH RESPECT TO THE CLAYTON ACT,  FN2  THE COURT SAID IN ITS OPINION:
"BY THAT ACT LABOR, AGRICULTURAL OR HORTICULTURAL COOPERATIVE
ORGANIZATIONS WERE EXCEPTED FROM THE BROAD AND SWEEPING TERMS OF THE
SHERMAN ACT.  SUCH COOPERATIVE ORGANIZATIONS, IN AND OF THEMSELVES,
WERE NOT TO BE CONSTRUED AS ILLEGAL COMBINATIONS OR CONSPIRACIES IN
RESTRAINT OF TRADE UNDER THE ANTI-TRUST LAWS."  28 F.SUPP.  183.  BUT
THE COURT DID NOT HOLD THAT, BY THESE PROVISIONS OF THE CLAYTON ACT,
EITHER THE DEFENDANTS PURE MILK ASSOCIATION AND ITS OFFICERS AND AGENTS
OR THE DEFENDANTS MILK WAGON DRIVERS UNION, LOCAL 753, AND ITS
OFFICIALS, (ALBEIT THESE ORGANIZATIONS WERE NOT IN THEMSELVES ILLEGAL
COMBINATIONS OR CONSPIRACIES) WERE RENDERED IMMUNE FROM PROSECUTION
UNDER THE SHERMAN ACT FOR THEIR ALLEGED PARTICIPATION IN THE
COMBINATIONS AND CONSPIRACIES CHARGED IN COUNTS ONE, TWO AND FOUR OF
THE INDICTMENT.  THE SHERMAN ACT WAS NOT CONSTRUED BY THE DISTRICT
COURT AS HAVING BEEN LIMITED TO THAT EXTENT BY THE CLAYTON ACT. 

THE COURT INVOKED THE CAPPER-VOLSTEAD ACT,  FN3  AS ITS JUDGMENT
SHOWS, ONLY IN RELATION TO CERTAIN DEFENDANTS, THAT IS, THE PURE MILK
ASSOCIATION, AN AGRICULTURAL COOPERATIVE OGANIZATION, AND ITS OFFICERS
AND AGENTS.  WE SHALL CONSIDER LATER THE EFFECT OF THAT STATUTE UPON
THE CHARGE AGAINST THOSE DEFENDANTS. 

THE COURT DISMISSED THE INDICTMENT AS TO ALL DEFENDANTS, AND WE THINK
IT MANIFEST THAT THIS RULING IN ITS BEARING UPON COUNTS ONE, TWO AND
FOUR WAS DUE TO THE EFFECT UPON THE SHERMAN ACT WHICH THE COURT
ATTRIBUTED TO THE AGRICULTURAL MARKETING AGREEMENT ACT.  FN4 

(1).  AS TO THAT ACT, THE COURT SAID: 

"THE COURT HOLDS THAT, BY THE AGRICULTURAL MARKETING AGREEMENT ACT
THE CONGRESS HAS COMMITTED TO THE EXECUTIVE DEPARTMENT, ACTING THROUGH
THE SECRETARY OF AGRICULTURE, FULL, COMPLETE AND PLENARY POWER OVER THE
PRODUCTION AND MARKETING, IN INTERSTATE COMMERCE, OF AGRICULTURAL
PRODUCTS, INCLUDING MILK. 

"TO WHAT EXTENT HE SHOULD ACT, THE QUANTUM OF REGULATION, IS SOLELY
ONE FOR HIS JUDGMENT AND DECISION.  IF CONDITIONS REQUIRE, HE MUST ACT;
IF THEY DO NOT REQUIRE ACTION, THEN ALL MARKETING CONDITIONS ARE DEEMED
SATISFACTORY AND THE PURPOSE OF THE ACT IS EFFECTUATED.  NON-ACTION BY
THE SECRETARY OF AGRICULTURE, IN ANY GIVEN MARKETING AREA, IS
EQUIVALENT TO A DECLARATION THAT THE POLICY OF THE ACT, IN THAT AREA,
IS BEING CARRIED OUT.  IF THE POLICY OF THE ACT, IN ANY GIVEN MILK
AREA, IS BEING VIOLATED IT BECOMES THE DUTY OF THE SECRETARY OF
AGRICULTURE TO INTERVENE AND INVOKE THE POWERS CONFERRED UPON HIM BY
THE ACT. 

"IT RESULTS, FROM WHAT HAS BEEN SAID, THAT THE POWER OF REGULATION,
SUPERVISION AND CONTROL OF THE MILK INDUSTRY, IN ANY GIVEN MILK SHED,
IS, BY THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, VESTED
EXCLUSIVELY IN THE SECRETARY OF AGRICULTURE.  IT FOLLOWS FURTHER THAT
THE SECRETARY OF AGRICULTURE CANNOT BY HIS OWN ACTION, OR INACTION,
DIVEST HIMSELF OF THIS POWER SO LONG AS THE STATUTE REMAINS IN FORCE. 
THE MARKETING OF THE AGRICULTURAL PRODUCTS, INCLUDING MILK, COVERED BY
THE AGRICULTURAL MARKETING AGREEMENT ACT, IS REMOVED FROM THE PURVIEW
OF THE SHERMAN ACT.  IN OTHER WORDS, SO FAR AS THE MARKETING OF
AGRICULTURAL COMMODITIES, INCLUDING MILK, IS CONCERNED, NO INDICTMENT
WILL LIE UNDER SECTION 1 OF THE SHERMAN ACT."  28 F.SUPP.  P. 187. 

IT WILL BE OBSERVED THAT THE DISTRICT COURT ATTRIBUTES THIS EFFECT TO
THE AGRICULTURAL MARKETING AGREEMENT ACT PER SE, THAT IS, TO ITS
OPERATION IN THE ABSENCE, AND WITHOUT REGARD TO THE SCOPE AND
PARTICULAR EFFECT, OF ANY MARKETING AGREEMENTS MADE BY THE SECRETARY OF
AGRICULTURE OR OF ANY ORDERS ISSUED BY HIM PURSUANT TO THE ACT.  IN THE
OPINION OF THE COURT BELOW, THE EXISTENCE OF THE AUTHORITY VESTED IN
THE SECRETARY OF AGRICULTURE, ALTHOUGH UNEXERCISED, WHOLLY DESTROYS THE
OPERATION OF SEC. 1 OF THE SHERMAN ACT WITH RESPECT TO THE MARKETING OF
AGRICULTURAL COMMODITIES. 

WE ARE OF THE OPINION THAT THIS CONCLUSION IS ERRONEOUS.  NO
PROVISION OF THAT PURPORT APPEARS IN THE AGRICULTURAL ACT.  WHILE
EFFECT IS EXPRESSLY GIVEN, AS WE SHALL SEE, TO AGREEMENTS AND ORDERS
WHICH MAY VALIDLY BE MADE BY THE SECRETARY OF AGRICULTURE, THERE IS NO
SUGGESTION THAT IN THEIR ABSENCE, AND APART FROM SUCH QUALIFIED
AUTHORIZATION AND SUCH REQUIREMENTS AS THEY CONTAIN, THE COMMERCE IN
AGRICULTURAL COMMODITIES IS STRIPPED OF THE SAFEGUARDS SET UP BY THE
ANTI-TRUST ACT AND IS LEFT OPEN TO THE RESTRAINTS, HOWEVER
UNREASONABLE, WHICH CONSPIRING PRODUCERS, DISTRIBUTORS AND THEIR ALLIES
MAY SEE FIT TO IMPOSE.  WE ARE UNABLE TO FIND THAT SUCH A GRANT OF
IMMUNITY BY VIRTUE OF THE INACTION, OR LIMITED ACTION, OF THE SECRETARY
HAS ANY PLACE IN THE STATUTORY PLAN.  WE CANNOT BELIEVE THAT CONGRESS
INTENDED TO CREATE "SO GREAT A BREACH IN HISTORIC REMEDIES AND
SANCTIONS."  FN5    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. 
UNITED STATES V. TYNEN, 11 WALL.  88, 92; HENDERSON'S TOBACCO, 11
WALL.  652, 657; GENERAL MOTORS ACCEPTANCE CORP. V. UNITED STATES, 286
U.S. 49, 61, 62.  THE INTENTION OF THE LEGISLATURE TO REPEAL "MUST BE
CLEAR AND MANIFEST."  RED ROCK V. HENRY, 106 U.S. 596, 601, 602.  IT IS
NOT SUFFICIENT, AS WAS SAID BY MR. JUSTICE STORY IN WOOD V. UNITED
STATES, 16 PET. 342, 362, 363, "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; AND EVEN THEN THE OLD LAW IS REPEALED BY IMPLICATION ONLY
PRO TANTO TO THE EXTENT OF THE REPUGNANCY."  SEE, ALSO, POSADOS V.
NATIONAL CITY BANK, 296 U.S. 497, 504. 

THE SHERMAN ACT IS A BROAD ENACTMENT PROHIBITING UNREASONABLE
RESTRAINTS UPON INTERSTATE COMMERCE, AND MONOPOLIZATION OR ATTEMPTS TO
MONOPOLIZE, WITH PENAL SANCTIONS.  THE AGRICULTURAL ACT IS A LIMITED
STATUTE WITH SPECIFIC REFERENCE TO PARTICULAR TRANSACTIONS WHICH MAY BE
REGULATED BY OFFICIAL ACTION IN A PRESCRIBED MANNER.  THE AGRICULTURAL
ACT  FN6  DECLARES IT TO BE THE POLICY OF CONGRESS "THROUGH THE
EXERCISE OF THE POWERS CONFERRED UPON THE SECRETARY OF AGRICULTURE
UNDER THIS CHAPTER, TO ESTABLISH AND MAINTAIN SUCH ORDERLY MARKETING
CONDITIONS FOR AGRICULTURAL COMMODITIES IN INTERSTATE COMMERCE AS WILL
ESTABLISH PRICES TO FARMERS AT A LEVEL THAT WILL GIVE AGRICULTURAL
COMMODITIES A PURCHASING POWER WITH RESPECT TO ARTICLES THAT FARMERS
BUY, EQUIVALENT TO THE PURCHASING POWER OF AGRICULTURAL COMMODITIES IN
THE BASE PERIOD" DESCRIBED.  TO CARRY OUT THAT POLICY A PARTICULAR PLAN
IS SET FORTH.  FARMERS AND OTHERS ARE NOT PERMITTED TO RESORT TO THEIR
OWN DEVICES AND TO MAKE ANY AGREEMENTS OR ARRANGEMENTS THEY DESIRE,
REGARDLESS OF THE RESTRAINTS WHICH MAY BE INFLICTED UPON COMMERCE.  THE
STATUTORY PROGRAM TO BE FOLLOWED UNDER THE AGRICULTURAL ACT REQUIRES
THE PARTICIPATION OF THE SECRETARY OF AGRICULTURE WHO IS TO HOLD
HEARINGS AND MAKE FINDINGS.  THE OBVIOUS INTENTION IS TO PROVIDE FOR
WHAT MAY BE FOUND TO BE REASONABLE ARRANGEMENTS IN PARTICULAR INSTANCES
AND IN THE LIGHT OF THE CIRCUMSTANCES DISCLOSED.  THE METHODS WHICH THE
AGRICULTURAL ACT PERMITS TO ATTAIN THAT RESULT ARE TWOFOLD, MARKETING
AGREEMENTS AND ORDERS.  TO GIVE VALIDITY TO MARKETING AGREEMENTS THE
SECRETARY MUST BE AN ACTUAL PARTY TO THE AGREEMENTS.  SEC. 8B.  FN7
THE ORDERS ARE ALSO TO BE MADE BY THE SECRETARY FOR THE PURPOSE OF
REGULATING THE HANDLING OF THE AGRICULTURAL COMMODITY TO WHICH THE
PARTICULAR ORDER RELATES.  SEC. 8C(3)(4).  FN8  THAT THE FIELD COVERED
BY THE AGRICULTURAL ACT IS NOT COTERMINOUS WITH THAT COVERED BY THE
SHERMAN ACT IS MANIFEST FROM THE FACT THAT THE FORMER IS THUS DELIMITED
BY THE PRESCRIBED ACTION PARTICIPATED IN AND DIRECTED BY AN OFFICER OF
GOVERNMENT PROCEEDING UNDER THE AUTHORITY SPECIFICALLY CONFERRED BY
CONGRESS.  AS TO AGREEMENTS AND ARRANGEMENTS NOT THUS AGREED UPON OR
DIRECTED BY THE SECRETARY, THE AGRICULTURAL ACT IN NO WAY IMPINGES UPON
THE PROHIBITIONS AND PENALTIES OF THE SHERMAN ACT, AND ITS CONDEMNATION
OF PRIVATE ACTION IN ENTERING INTO COMBINATIONS AND CONSPIRACIES WHICH
IMPOSE THE PROHIBITED RESTRAINT UPON INTERSTATE COMMERCE REMAINS
UNTOUCHED. 

IT IS NOT NECESSARY TO LABOR THE POINT, FOR THE AGRICULTURAL ACT
ITSELF EXPRESSLY DEFINES THE EXTENT TO WHICH ITS PROVISIONS MAKE THE
ANTITRUST LAWS INAPPLICABLE.  THAT DEFINITION IS FOUND IN SEC. 8(B)
FN9  OF THE AGRICULTURAL ADJUSTMENT ACT CARRIED INTO THE AGRICULTURAL
MARKETING AGREEMENT ACT IN RELATION TO MARKETING AGREEMENTS, AND
PROVIDES AS FOLLOWS: 

"IN ORDER TO EFFECTUATE THE DECLARED POLICY OF THIS CHAPTER, THE
SECRETARY OF AGRICULTURE SHALL HAVE THE POWER, AFTER DUE NOTICE AND
OPPORTUNITY FOR HEARING, TO ENTER INTO MARKETING AGREEMENTS WITH
PROCESSORS, PRODUCERS, ASSOCIATIONS OF PRODUCERS, AND OTHERS ENGAGED IN
THE HANDLING OF ANY AGRICULTURAL COMMODITY OR PRODUCT THEREOF, ONLY
WITH RESPECT TO SUCH HANDLING AS IS IN THE CURRENT OF INTERSTATE OR
FOREIGN COMMERCE OR WHICH DIRECTLY BURDENS, OBSTRUCTS, OR AFFECTS,
INTERSTATE OR FOREIGN COMMERCE IN SUCH COMMODITY OR PRODUCT THEREOF. 
THE MAKING OF ANY SUCH AGREEMENT SHALL NOT BE HELD TO BE IN VIOLATION
OF ANY OF THE ANTITRUST LAWS OF THE UNITED STATES, AND ANY SUCH
AGREEMENT SHALL BE DEEMED TO BE LAWFUL:  PROVIDED, THAT NO SUCH
AGREEMENT SHALL REMAIN IN FORCE AFTER THE TERMINATION OF THIS
CHAPTER." 

ANOTHER PROVISION IS FOUND IN SEC. 3(D)  FN10  OF THE AGRICULTURAL
MARKETING AGREEMENT ACT, RELATING TO AWARDS OR AGREEMENTS RESULTING
FROM THE ARBITRATION OR MEDIATION BY THE SECRETARY OF AGRICULTURE OR BY
A DESIGNATED OFFICER OR EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE AS
PROVIDED IN SEC. 3(A),  FN11  AND MEETINGS FOR THAT PURPOSE AND AWARDS
OR AGREEMENTS RESULTING THEREFROM WHICH HAVE BEEN APPROVED BY THE
SECRETARY OF AGRICULTURE AS PROVIDED IN SEC. 3(B).  FN12  SECTION 3(D)
PROVIDES: 

"NO MEETING SO HELD AND NO AWARD OR AGREEMENT SO APPROVED SHALL BE
DEEMED TO BE IN VIOLATION OF ANY OF THE ANTITRUST LAWS OF THE UNITED
STATES." 

THESE EXPLICIT PROVISIONS REQUIRING OFFICIAL PARTICIPATION AND
AUTHORIZATIONS SHOW BEYOND QUESTION HOW FAR CONGRESS INTENDED THAT THE
AGRICULTURAL ACT SHOULD OPERATE TO RENDER THE SHERMAN ACT
INAPPLICABLE.  FN13  IF CONGRESS HAD DESIRED TO GRANT ANY FURTHER
IMMUNITY, CONGRESS DOUBTLESS WOULD HAVE SAID SO. 

AN AGREEMENT MADE WITH THE SECRETARY AS A PARTY, OR AN ORDER MADE BY
HIM, OR AN ARBITRATION AWARD OR AGREEMENT APPROVED BY HIM, PURSUANT TO
THE AUTHORITY CONFERRED BY THE AGRICULTURAL ACT AND WITHIN THE TERMS OF
THE DESCRIBED IMMUNITY, WOULD OF COURSE BE A DEFENSE TO A PROSECUTION
UNDER THE SHERMAN ACT TO THE EXTENT THAT THE PROSECUTION SOUGHT TO
PENALIZE WHAT WAS THUS VALIDLY AGREED UPON OR DIRECTED BY THE
SECRETARY.  FURTHER THAN THAT THE AGRICULTURAL ACT DOES NOT GO. 

WE HAVE NO OCCASION TO DECIDE WHETHER IN ANY PARTICULAR CASE AN
INDICTMENT UNDER THE SHERMAN ACT BY REASON OF ITS PARTICULAR TERMS
WOULD BE SUBJECT TO DEMURRER, OR TO A MOTION TO QUASH, UPON THE GROUND
THAT THE INDICTMENT RAN AGAINST THE PROVISIONS OF SUCH AN AGREEMENT OR
ORDER.  WE HAVE NO SUCH SITUATION HERE.  THERE IS INDEED A CONTENTION
THAT THERE WAS A LICENSE (NO. 30) ISSUED BY THE SECRETARY OF
AGRICULTURE IN 1934, AMENDED IN JANUARY, 1935, AND IN FORCE UNTIL MARCH
2, 1935, WHICH RELATED TO THE MARKETING OF MILK IN THE CHICAGO AREA,
AND HENCE THAT DEFENDANTS OPERATING UNDER THAT LICENSE WERE NOT SUBJECT
TO THE CHARGES OF THE CONSPIRACIES ALLEGED TO HAVE BEGUN IN JANUARY,
1935.  BUT THE ALLEGATIONS OF THE INDICTMENT ARE THAT THE UNLAWFUL
CONSPIRACIES CONTINUED THROUGHOUT ALL THE PERIOD MENTIONED IN THE
INDICTMENT, THAT IS, UP TO THE TIME OF ITS PRESENTMENT IN NOVEMBER,
1938.  THIS CLEARLY IMPORTS THAT THE CONSPIRACIES WERE OPERATIVE AFTER
THE LICENSE CAME TO AN END AND THUS IN THE ABSENCE OF ANY LICENSE.  A
CONSPIRACY THUS CONTINUED IS IN EFFECT RENEWED DURING EACH DAY OF ITS
CONTINUANCE.  UNITED STATES V. KISSEL, 218 U.S. 601, 607, 608; HYDE V.
UNITED STATES, 225 U.S. 347, 369; BROWN V. ELLIOTT, 225 U.S. 392, 400. 
IT IS ALSO SAID THAT THERE IS A RECENT MARKETING ORDER UNDER DATE OF
AUGUST 29, 1939,  FN14  WHICH RELATES TO THE CHICAGO MARKETING AREA,
AND HENCE THAT THIS CAUSE IS MOOT.  BUT THAT ORDER AFFECTS A PERIOD
SUBSEQUENT TO THE TIME COVERED BY THE INDICTMENT.  THESE CONTENTIONS
ARE UNAVAILING IN RELATION TO THE QUESTION BEFORE US. 

OUR CONCLUSION IS THAT THE AGRICULTURAL ADJUSTMENT ACT AS REENACTED
AND AMENDED BY THE AGRICULTURAL MARKETING AGREEMENT ACT AFFORDS NO
GROUND FOR CONSTRUING THE SHERMAN ACT AS INAPPLICABLE TO THE CHARGES
CONTAINED IN COUNTS ONE, TWO AND FOUR. 

(2)  THERE REMAINS THE QUESTION WHETHER THE COURT BELOW RIGHTLY HELD
THAT THE CAPPER-VOLSTEAD ACT  FN15  HAD MODIFIED THE SHERMAN ACT SO AS
TO EXEMPT THE PURE MILK ASSOCIATION, A COOPERATIVE AGRICULTURAL
ORGANIZATION, AND ITS OFFICERS AND AGENTS, FROM PROSECUTION UNDER THESE
COUNTS. 

AS TO THE CAPPER-VOLSTEAD ACT THE COURT SAID: 

"THIS ACT LEGALIZES PRICE FIXING FOR THOSE WITHIN ITS PURVIEW.  TO
THAT EXTENT IT MODIFIES THE SHERMAN ACT.  IT REMOVES FROM THE SHERMAN
ACT THOSE ORGANIZATIONS, COOPERATIVE IN THEIR NATURE, WHICH COME WITHIN
THE PURVIEW OF THE CAPPER-VOLSTEAD ACT.  PRIOR TO THE CAPPER-VOLSTEAD
ACT FARMERS WERE TREATED NO DIFFERENTLY THAN OTHERS UNDER THE ANTITRUST
LAWS, SO FAR AS PRICE FIXING WAS CONCERNED.  ... 

"THE CAPPER-VOLSTEAD ACT DOES NOT CONDEMN ANY KIND OF MONOPOLY OR
RESTRAINT OF TRADE, OR ANY PRICE FIXING, UNLESS SUCH MONOPOLY OR PRICE
FIXING UNDULY ENHANCES THE PRICE OF AN AGRICULTURAL PRODUCT.  THE ACT
THEN, BY SECTION 2 THEREOF, COMMITS TO AN OFFICER OF THE EXECUTIVE
DEPARTMENT, THE SECRETARY OF AGRICULTURE, THE POWER OF REGULATION AND
VISITATION. 

"UNDER THIS ACT FARMERS ARE FAVORED UNDER THE ANTITRUST LAWS IN THAT
THEY ARE GIVEN A QUALIFIED RIGHT, FREE FROM ANY CRIMINAL LIABILITY, TO
COMBINE AMONG THEMSELVES TO MONOPOLIZE AND RESTRAIN INTERSTATE TRADE
AND COMMERCE IN FARM PRODUCTS AND TO FIX AND ENHANCE THE PRICE
THEREOF. 

"  ...  THE COURT DEDUCES FROM THE CAPPER-VOLSTEAD ACT THAT THE
SECRETARY OF AGRICULTURE HAS EXCLUSIVE JURISDICTION TO DETERMINE AND
ORDER, IN THE FIRST INSTANCE, WHETHER OR NOT FARMER COOPERATIVES, IN
THEIR OPERATION, MONOPOLIZE AND RESTRAIN INTERSTATE TRADE AND COMMERCE
'TO SUCH AN EXTENT THAT THE PRICE OF ANY AGRICULTURAL PRODUCT IS UNDULY
ENHANCED'.  UNTIL THE SECRETARY OF AGRICULTURE ACTS, THE JUDICIAL POWER
CANNOT BE INVOKED."  28 F.SUPP., PP. 183, 184. 

WE ARE UNABLE TO ACCEPT THAT VIEW.  WE CANNOT FIND IN THE CAPPER
VOLSTEAD ACT, ANY MORE THAN IN THE AGRICULTURAL ACT, AN INTENTION TO
DECLARE IMMUNITY FOR THE COMBINATIONS AND CONSPIRACIES CHARGED IN THE
PRESENT INDICTMENT.  SECTION 6 OF THE CLAYTON ACT, ENACTED IN 1914,
FN16  HAD AUTHORIZED THE FORMATION AND OPERATION OF AGRICULTURAL
ORGANIZATIONS PROVIDED THEY DID NOT HAVE CAPITAL STOCK OR WERE
CONDUCTED FOR PROFIT, AND IT WAS THERE PROVIDED THAT THE ANTITRUST LAWS
SHOULD NOT BE CONSTRUED TO FORBID MEMBERS OF SUCH ORGANIZATIONS "FROM
LAWFULLY CARRYING OUT THE LEGITIMATE OBJECTS THEREOF."  THEY WERE NOT
TO BE HELD ILLEGAL COMBINATIONS.  THE CAPPER-VOLSTEAD ACT, ENACTED IN
1922,  FN17  WAS MADE APPLICABLE AS WELL TO COOPERATIVES HAVING CAPITAL
STOCK.  THE PERSONS TO WHOM THE CAPPER-VOLSTEAD ACT APPLIES ARE DEFINED
IN SEC. 1 AS PRODUCERS OF AGRICULTURAL PRODUCTS, "AS FARMERS, PLANTERS,
RANCHMEN, DAIRYMEN, NUT OR FRUIT GROWERS."  THEY ARE AUTHORIZED TO ACT
TOGETHER "IN COLLECTIVELY PROCESSING, PREPARING FOR MARKET, HANDLING,
AND MARKETING IN INTERSTATE AND FOREIGN COMMERCE" THEIR PRODUCTS.  THEY
MAY HAVE "MARKETING AGENCIES IN COMMON," AND THEY MAY MAKE "THE
NECESSARY CONTRACTS AND AGREEMENTS TO EFFECT SUCH PURPOSES." 

THE RIGHT OF THESE AGRICULTURAL PRODUCERS THUS TO UNITE IN PREPARING
FOR MARKET AND IN MARKETING THEIR PRODUCTS, AND TO MAKE THE CONTRACTS
WHICH ARE NECESSARY FOR THAT COLLABORATION, CANNOT BE DEEMED TO
AUTHORIZE ANY COMBINATION OR CONSPIRACY WITH OTHER PERSONS IN RESTRAINT
OF TRADE THAT THESE PRODUCERS MAY SEE FIT TO DEVISE.  IN THIS INSTANCE,
THE CONSPIRACY CHARGED IS NOT THAT OF MERELY FORMING A COLLECTIVE
ASSOCIATION OF PRODUCERS TO MARKET THEIR PRODUCTS BUT A CONSPIRACY, OR
CONSPIRACIES, WITH MAJOR DISTRIBUTORS AND THEIR ALLIED GROUPS, WITH
LABOR OFFICIALS, MUNICIPAL OFFICIALS, AND OTHERS, IN ORDER TO MAINTAIN
ARTIFICIAL AND NON-COMPETITIVE PRICES TO BE PAID TO ALL PRODUCERS FOR
ALL FLUID MILK PRODUCED IN ILLINOIS AND NEIGHBORING STATES AND MARKETED
IN THE CHICAGO AREA, AND THUS IN EFFECT, AS THE INDICTMENT IS CONSTRUED
BY THE COURT BELOW, "TO COMPEL INDEPENDENT DISTRIBUTORS TO EXACT A LIKE
PRICE FROM THEIR CUSTOMERS" AND ALSO TO CONTROL "THE SUPPLY OF FLUID
MILK PERMITTED TO BE BROUGHT TO CHICAGO."  28 F.SUPP.  180-182.  SUCH A
COMBINED ATTEMPT OF ALL THE DEFENDANTS, PRODUCERS, DISTRIBUTORS AND
THEIR ALLIES, TO CONTROL THE MARKET FINDS NO JUSTIFICATION IN SEC. 1 OF
THE CAPPER-VOLSTEAD ACT. 

NOR DOES THE COURT BELOW DERIVE ITS LIMITATION OF THE SHERMAN ACT
FROM SEC. 1.  THE PITH OF THE COURT'S CONCLUSION IS THAT UNDER SEC. 2
AN EXCLUSIVE JURISDICTION WITH RESPECT TO THE DESCRIBED COOPERATIVE
ASSOCIATIONS IS VESTED, IN THE FIRST INSTANCE, IN THE SECRETARY OF
AGRICULTURE, AND THAT, UNTIL THE SECRETARY ACTS, THE JUDICIAL POWER TO
ENTERTAIN A PROSECUTION UNDER THE SHERMAN ACT CANNOT BE INVOKED. 
IN A CASE WHERE THE SECRETARY OF AGRICULTURE HAS REASON TO BELIEVE THAT
ANY SUCH ASSOCIATION "MONOPOLIZES" OR RESTRAINS INTERSTATE TRADE "TO
SUCH AN EXTENT THAT THE PRICE OF ANY AGRICULTURAL PRODUCT IS UNDULY
ENHANCED."  THEREUPON THE SECRETARY IS TO SERVE UPON THE ASSOCIATION A
COMPLAINT, STATING HIS CHARGE WITH NOTICE OF HEARING.  AND IF UPON SUCH
HEARING THE SECRETARY IS OF THE OPINION THAT THE ASSOCIATION
"MONOPOLIZES," OR DOES RESTRAIN INTERSTATE TRADE TO THE EXTENT ABOVE
MENTIONED, HE THEN IS TO ISSUE AN ORDER DIRECTING THE ASSOCIATION "TO
CEASE AND DESIST" THEREFROM.  PROVISION IS MADE FOR JUDICIAL REVIEW. 

WE FIND NO GROUND FOR SAYING THAT THIS LIMITED PROCEDURE IS A
SUBSTITUTE FOR THE PROVISIONS OF THE SHERMAN ACT, OR HAS THE RESULT OF
PERMITTING THE SORT OF COMBINATIONS AND CONSPIRACIES HERE CHARGED
UNLESS OR UNTIL THE SECRETARY OF AGRICULTURE TAKES ACTION.  THAT THIS
PROVISION OF THE CAPPER-VOLSTEAD ACT DOES NOT COVER THE ENTIRE FIELD OF
THE SHERMAN ACT IS SUFFICIENTLY CLEAR.  THE SHERMAN ACT AUTHORIZES
CRIMINAL PROSECUTIONS AND PENALTIES.  THE CAPPER-VOLSTEAD ACT PROVIDES
ONLY FOR A CIVIL PROCEEDING.  THE SHERMAN ACT HITS AT ATTEMPTS TO
MONOPOLIZE AS WELL AS ACTUAL MONOPOLIZATION.  AND SEC. 2 OF THE CAPPER
VOLSTEAD ACT CONTAINS NO PROVISION GIVING IMMUNITY FROM THE SHERMAN ACT
IN THE ABSENCE OF A PROCEEDING BY THE SECRETARY.  WE THINK THAT THE
PROCEDURE UNDER SEC. 2 OF THE CAPPER-VOLSTEAD ACT IS AUXILIARY AND WAS
INTENDED MERELY AS A QUALIFICATION OF THE AUTHORIZATION GIVEN TO
COOPERATIVE AGRICULTURAL PRODUCERS BY SEC. 1, SO THAT IF THE COLLECTIVE
ACTION OF SUCH PRODUCERS, AS THERE PERMITTED, RESULTS IN THE OPINION OF
THE SECRETARY IN MONOPOLIZATION OR UNDULY ENHANCED PRICES, HE MAY
INTERVENE AND SEEK TO CONTROL THE ACTION THUS TAKEN UNDER SEC. 1.  BUT
AS SEC. 1 CANNOT BE REGARDED AS AUTHORIZING THE SORT OF CONSPIRACIES
BETWEEN PRODUCERS AND OTHERS THAT ARE CHARGED IN THIS INDICTMENT, THE
QUALIFYING PROCEDURE FOR WHICH SEC. 2 PROVIDES IS NOT TO BE DEEMED TO
BE DESIGNED TO TAKE THE PLACE OF, OR TO POSTPONE OR PREVENT,
PROSECUTION UNDER SEC. 1 OF THE SHERMAN ACT FOR THE PURPOSE OF
PUNISHING SUCH CONSPIRACIES. 

FIFTH.  HAVING DEALT WITH THE CONSTRUCTION PLACED BY THE COURT BELOW
UPON THE SHERMAN ACT, OUR JURISDICTION ON THIS APPEAL IS EXHAUSTED.  WE
ARE NOT AT LIBERTY TO CONSIDER OTHER OBJECTIONS TO THE INDICTMENT OR
QUESTIONS WHICH MAY ARISE UPON THE TRIAL WITH RESPECT TO THE MERITS OF
THE CHARGE.  FOR IT IS WELL SETTLED THAT WHERE THE DISTRICT COURT HAS
BASED ITS DECISION ON A PARTICULAR CONSTRUCTION OF THE UNDERLYING
STATUTE, THE REVIEW HERE UNDER THE CRIMINAL APPEALS ACT IS CONFINED TO
THE QUESTION OF THE PROPRIETY OF THAT CONSTRUCTION.  UNITED STATES V.
KEITEL, SUPRA; UNITED STATES V. KISSEL, SUPRA, P. 606; UNITED STATES V.
MILLER, 223 U.S. 599, 602; UNITED STATES V. CARTER, SUPRA; UNITED
STATES V. COLGATE & CO., SUPRA; UNITED STATES V. SCHRADER'S SON, SUPRA;
UNITED STATES V. HASTINGS, SUPRA.  THE CASE OF UNITED STATES V. CURTISS
WRIGHT CORPORATION, 299 U.S. 304, IS NOT OPPOSED, AS THERE THE DECISION
OF THE DISTRICT COURT WAS NOT BASED UPON A PARTICULAR CONSTRUCTION OF
THE UNDERLYING STATUTE, BUT UPON ITS INVALIDITY, AND THE JURISDICTION
OF THIS COURT EXTENDED TO THE CONSIDERATION OF THE RULINGS OF THE
DISTRICT COURT WHICH DEALT WITH THAT QUESTION. 

THE LIMITATION APPLICABLE IN THE INSTANT CASE TO THE QUESTION OF THE
DISTRICT COURT'S CONSTRUCTION OF THE SHERMAN ACT DISPOSES OF THE
CONTENTION URGED BY SOME OF THE DEFENDANTS THAT COUNTS TWO AND FOUR DO
NOT SHOW SUCH A DIRECT RESTRAINT UPON INTERSTATE COMMERCE AS TO BRING
THE ACTS CHARGED WITHIN THE STATUTE.  THE DISTRICT COURT SAID IN ITS
OPINION THAT, IN VIEW OF ITS RULINGS (ABOVE DISCUSSED) AS TO COUNTS
ONE, TWO AND FOUR, IT WAS UNNECESSARY TO DECIDE "WHETHER OR NOT THE
ALLEGATIONS OF THE INDICTMENT SHOW THAT INTERSTATE COMMERCE WAS OR WAS
NOT RESTRAINED."  28 F.SUPP., P. 187.  IN ITS JUDGMENT THE COURT
FORMALLY OVERRULED ALL OBJECTIONS TO THESE COUNTS SO FAR AS THE
OBJECTIONS RESTED ON THE GROUND THAT INTERSTATE COMMERCE WAS NOT
INVOLVED.  IF THESE RULINGS BE TREATED AS DEALING MERELY WITH THE
CONSTRUCTION OF THE INDICTMENT, THEY MUST BE ACCEPTED HERE.  UNITED
STATES V. PATTEN, SUPRA; UNITED STATES V. COLGATE & CO., SUPRA; UNITED
STATES V. HASTINGS, SUPRA.  BUT, APART FROM THAT, THE DISTRICT COURT
CERTAINLY HAS NOT CONSTRUED THE SHERMAN ACT AS INAPPLICABLE UPON THE
GROUND THAT INTERSTATE COMMERCE IS NOT INVOLVED, AND THE QUESTION OF
THE BEARING UPON THAT COMMERCE OF THE ACTS CHARGED IS NOT BEFORE US. 

SIMILARLY, THE CONTENTION OF THE DEFENDANTS WHO ARE LABOR OFFICIALS
THAT THE SHERMAN ACT DOES NOT APPLY TO LABOR UNIONS OR LABOR UNION
ACTIVITIES IS NOT OPEN ON THIS APPEAL.  THE DISTRICT COURT DID NOT
CONSTRUE THE SHERMAN ACT AS INAPPLICABLE TO THESE DEFENDANTS AND THE
GOVERNMENT'S APPEAL, UNDER THE RESTRICTION OF THE CRIMINAL APPEALS ACT,
DOES NOT PRESENT THAT QUESTION. 

THE APPEAL AS TO COUNT THREE IS DISMISSED.  THE JUDGMENT IS REVERSED
AS TO COUNTS ONE, TWO AND FOUR, AND THE CAUSE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  IT IS SO ORDERED. 

FN1  THIS ACT (18 U.S.C. 682, JUD.  CODE, SEC. 238, 28 U.S.C. 345)
PROVIDES: 

"AN APPEAL MAY BE TAKEN BY AND ON BEHALF OF THE UNITED STATES FROM
THE DISTRICT COURTS DIRECT TO THE SUPREME COURT OF THE UNITED STATES IN
ALL CRIMINAL CASES, IN THE FOLLOWING INSTANCES, TO WIT: 

"FROM A DECISION OR JUDGMENT QUASHING, SETTING ASIDE, OR SUSTAINING A
DEMURRER TO, ANY INDICTMENT, OR ANY COUNT THEREOF, WHERE SUCH DECISION
OR JUDGMENT IS BASED UPON THE INVALIDITY, OR CONSTRUCTION OF THE
STATUTE UPON WHICH THE INDICTMENT IS FOUNDED. 

"FROM A DECISION ARRESTING A JUDGMENT OF CONVICTION FOR INSUFFICIENCY
OF THE INDICTMENT, WHERE SUCH DECISION IS BASED UPON THE INVALIDITY OR
CONSTRUCTION OF THE STATUTE UPON WHICH THE INDICTMENT IS FOUNDED. 

"FROM THE DECISION OR JUDGMENT SUSTAINING A SPECIAL PLEA IN BAR, WHEN
THE DEFENDANT HAS NOT BEEN PUT IN JEOPARDY.  ... 

"PENDING THE PROSECUTION AND DETERMINATION OF THE APPEAL IN THE
FOREGOING INSTANCES, THE DEFENDANT SHALL BE ADMITTED TO BAIL ON HIS OWN
RECOGNIZANCE:  PROVIDED, THAT NO APPEAL SHALL BE TAKEN BY OR ALLOWED
THE UNITED STATES IN ANY CASE WHERE THERE HAS BEEN A VERDICT IN FAVOR
OF THE DEFENDANT." 

FN2  SECTION 6 OF THE CLAYTON ACT (38 STAT. 730, 15 U.S.C. 17)
PROVIDES: 

"THE LABOR OF A HUMAN BEING IS NOT A COMMODITY OR ARTICLE OF
COMMERCE.  NOTHING CONTAINED IN THE ANTITRUST LAWS SHALL BE CONSTRUED
TO FORBID THE EXISTENCE AND OPERATION OF LABOR, AGRICULTURAL, OR
HORTICULTURAL ORGANIZATIONS, INSTITUTED FOR THE PURPOSES OF MUTUAL
HELP, AND NOT HAVING CAPITAL STOCK OR CONDUCTED FOR PROFIT, OR TO
FORBID OR RESTRAIN INDIVIDUAL MEMBERS OF SUCH ORGANIZATIONS FROM
LAWFULLY CARRYING OUT THE LEGITIMATE OBJECTS THEREOF; NOR SHALL SUCH
ORGANIZATIONS, OR THE MEMBERS THEREOF, BE HELD OR CONSTRUED TO BE
ILLEGAL COMBINATIONS OR CONSPIRACIES IN RESTRAINT OF TRADE, UNDER THE
ANTITRUST LAWS." 

FN3  42 STAT. 388, 7 U.S.C. 291, 292. 

FN4  THE DISTRICT COURT REFERRED, IN PASSING, TO THE COOPERATIVE
MARKETING ACT OF JULY 2, 1926(44 STAT. 803, 7 U.S.C. 455), AND TO THE
PROVISIONS OF THE AGRICULTURAL ADJUSTMENT ACT OF 1933(48 STAT. 31), AS
AMENDED IN 1935(49 STAT. 750), WHICH WAS FOLLOWED BY THE AGRICULTURAL
MARKETING AGREEMENT ACT OF 1937(50 STAT. 246). 

FN5  SEE GENERAL MOTORS ACCEPTANCE CORP. V. UNITED STATES, 286 U.S.
49, 61. 

FN6  7 U.S.C. SUPP. IV, 602(1). 

FN7  7 U.S.C. SUPP. IV, SEC. 608B. 

FN8  7 U.S.C. SUPP. IV, SEC. 608C (3)(4). 

FN9  7 U.S.C. SUPP. IV, SEC. 608B. 

FN10  50 STAT. 249. 

FN11  50 STAT. 248. 

FN12  50 STAT. 248. 

FN13  SEE 77 CONG. REC., PT. II, P. 1977; PT. III, P. 3117. 

FN14  FEDERAL REGISTER, AUGUST 30, 1939, ORDER NO. 41, VOL. 4, PP.
3764-3768, 3770. 

FN15  42 STAT. 388, 7 U.S.C. 291, 292. 

FN16  38 STAT. 731. 

FN17  42 STAT. 388. 
..END :










CITIES SERVICE CO. V. DUNLAP, 308 U.S. 208 


NO. 28.  ARGUED NOVEMBER 8, 9, 1939.  - DECIDED DECEMBER 4, 1939.  - 100
F.2D 294 - 101 ID. 314, REVERSED. 


A LOCAL RULE OF LAW, ESTABLISHED BY DECISIONS OF THE STATE COURT,
WHICH, ON AN ISSUE OF BONA FIDE PURCHASE WITHOUT NOTICE FOR VALUE,
RESTS THE BURDEN OF PROOF UPON HIM WHO ATTACKS THE LEGAL TITLE AND
ASSERTS A SUPERIOR EQUITY, MUST BE FOLLOWED BY THE FEDERAL COURT IN A
SUIT TO QUIET TITLE BROUGHT BY THE LEGAL OWNER OF RECORD.  P. 210. 

THIS IS NOT A MATTER OF PRACTICE IN COURTS OF EQUITY BUT A MATTER OF
SUBSTANTIAL RIGHT - A VALUABLE ASSURANCE IN FAVOR OF THE LEGAL TITLE. 

CITIES SERVICE OIL CO. V. DUNLAP ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 307 U.S. 617, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
DISTRICT COURT IN FAVOR OF THE RESPONDENTS IN A SUIT BY THE PETITIONER
TO QUIET ITS TITLE TO A PIECE OF LAND. 

OPINION OF THE COURT BY MR. JUSTICE MCREYNOLDS, ANNOUNCED BY MR.
CHIEF JUSTICE HUGHES. 

THIS CAUSE IS HERE IN ORDER THAT WE MAY DECIDE WHETHER THE CIRCUIT
COURT OF APPEALS WRONGLY DECLINED TO FOLLOW THE RULE OF THE TEXAS
COURTS PRESCRIBING HOW AND BY WHOM THE FACTS SHOULD BE SHOWN WHERE ONE
PARTY TO A CONTEST CONCERNING OWNERSHIP OF LAND CLAIMS THE LEGAL TITLE
AS BONA FIDE PURCHASER.  WE HAVE CONSIDERED THAT POINT ONLY AND
CONCLUDE THE RULING BELOW WAS ERROR.  IN CONSEQUENCE THE CHALLENGED
JUDGMENT MUST BE REVERSED.  THE CAUSE WILL BE REMANDED FOR FINAL
DETERMINATION UPON THE ENTIRE RECORD CONSISTENT WITH THIS OPINION. 

PRIOR TO 1899 LOUISA ROGERS OWNED A RECTANGULAR TRACT OF LAND - 320
ACRES - IN GREGG COUNTY, TEXAS.  IN FEBRUARY OF THAT YEAR HER HEIRS -
J. F. ROGERS AND HIS THREE BROTHERS - DIVIDED THIS BY DEEDS, DULY
EXECUTED AND RECORDED.  ONE OF THESE CONVEYED TO J. F. ROGERS SIXTY
EIGHT ACRES OUT OF THE NORTHWEST PORTION OF THE TRACT, DESCRIBED BY
METES AND BOUNDS.  THE NORTH LINE WAS SAID TO BEGIN AT A SPECIFIED
POINT AND TO RUN THENCE WEST 440 YARDS TO "WILEY DAVIS N.E. CORNER." 
THERE THE BOUNDARY TURNS SOUTH AND RUNS FOR EIGHT HUNDRED AND EIGHTY
YARDS, THENCE EAST, &C.  MEASURED ON THE GROUND, 440 YARDS ENDS SIXTY
SIX FEET EAST OF DAVIS' CORNER.  THIS DISCREPANCY GAVE OCCASION FOR THE
PRESENT CONTROVERSY OVER THE SIXTY-SIX FOOT STRIP LYING BETWEEN A SOUTH
LINE FROM DAVIS' CORNER AND A PARALLEL ONE, SIXTY-SIX FEET TO THE
EAST.  THE INTEREST ASSERTED BY RESPONDENTS RESTS UPON THE THEORY THAT
BY INTENTION THIS WAS LEFT UNDIVIDED. 

IN 1930 J. F. ROGERS' HEIRS GRANTED AN OIL AND GAS LEASE TO ALL LAND
DESCRIBED IN THE 1899 DEED TO HIM.  BY ASSIGNMENTS AND SUCCESSION,
PETITIONER OIL COMPANY BECAME OWNER OF THIS.  THE CONVEYANCES WERE DULY
RECORDED. 

IN 1934 RESPONDENT DUNLAP OBTAINED FROM THE THREE BROTHERS OF J. F.
ROGERS AND HIS HEIRS, A LEASE OF THE MAJOR PART OF THE SIXTY-SIX FOOT
STRIP ABOVE DESCRIBED.  TITLE TO THIS IS THE SUBJECT OF THE PRESENT
CONTROVERSY. 

CLAIMING THAT THE LAND DESCRIBED IN THE DUNLAP LEASE OF 1934 WAS
WITHIN THE BOUNDARIES OF ITS EARLIER ONE (1930), PETITIONER FILED AN
ORIGINAL BILL IN THE UNITED STATES DISTRICT COURT TO REMOVE THE CLOUD. 
DUNLAP AND THE ROGERS APPEARED AND DENIED THE MATERIAL ALLEGATIONS.  A
CROSS-BILL SET UP THEIR RECORDED DEED AND ALLEGED THAT THE CALL IN THE
1899 DEED TO J. F. ROGERS FOR "DAVIS' NORTHEAST CORNER" WAS INSERTED
THROUGH INADVERTENCE AND MISTAKE; THAT THE DISTANCE CALL CONTROLLED;
THAT THE PURPOSE OF THE PARTIES WAS TO ESTABLISH THE WESTERN TERMINUS
OF THE NORTH LINE SIXTY-SIX FEET EAST OF DAVIS' CORNER AND LEAVE A
STRIP ON THE WEST IN COMMON OWNERSHIP. 

PETITIONER DENIED THE ALLEGATIONS OF THE CROSS-BILL AND ASSERTED THAT
IT AND ITS PREDECESSORS WERE PURCHASERS OF THE RECORDED LEGAL TITLE FOR
VALUE IN GOOD FAITH AND WITHOUT NOTICE OF MISTAKE. 

THE DISTRICT COURT RULED IN FAVOR OF DUNLAP.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  100 F.2D 294; 101 ID. 314. 

IN THE LATTER COURT PETITIONER MAINTAINED THAT UNDER THE ESTABLISHED
TEXAS RULE, ON AN ISSUE OF BONA FIDE PURCHASER FOR VALUE WITHOUT
NOTICE, THE BURDEN OF PROOF IS UPON HIM WHO ATTACKS THE LEGAL TITLE AND
ASSERTS A SUPERIOR EQUITY.  IT CITED WHITE V. HIX, (TEXAS) 104 S.W.2D
136, 139-140,  FN1  AND INSISTED THAT ERIE R. CO. V. TOMPKINS, 304 U.S.
64, REQUIRED OBSERVANCE OF THE LOCAL RULE. 

THE COURT RECOGNIZED THE EXISTENCE OF THE TEXAS RULE AS CLAIMED BUT
THOUGHT A DIFFERENT AND BETTER ONE WAS GENERALLY APPROVED AND SHOULD BE
FOLLOWED.  IT SAID - 

"IN THE PRESENT CASE THE APPELLANT IS THE ORIGINAL COMPLAINANT,
SEEKING A DECREE QUIETING ITS TITLE.  IT HAS ENTERED A COURT OF EQUITY,
ASKING EQUITY AND BOUND TO DO EQUITY.  THE DEFENDANTS IN THEIR ANSWER
SET UP A MISTAKE, CORRECTABLE IN EQUITY, IN THE PARTITION DEED MADE TO
COMPLAINANT'S GRANTOR, J. F. ROGERS.  COMPLAINANT REPLIES, DENYING THE
ALLEGED MISTAKE AND ALLEGING ADDITIONALLY IN VERY GENERAL TERMS THAT IT
AND ITS PREDECESSORS IN TITLE PURCHASED IN GOOD FAITH, PAYING VALUE FOR
THE OIL AND GAS LEASE IT HOLDS IN RELIANCE ON THE DEED AS WRITTEN, AND
WITHOUT NOTICE OR KNOWLEDGE OF THE CLAIM NOW ASSERTED THAT THE CALL FOR
THE WILEY DAVIS NORTHEAST CORNER WAS INSERTED BY MISTAKE.  THERE WAS NO
FURTHER PLEADING." 

"ISSUE STANDS JOINED ON THE NEW FACTS ALLEGED BY THIS COMPLAINANT'S
REPLY CONCERNING ITS PURCHASE FOR VALUE WITHOUT KNOWLEDGE OR NOTICE. 
IT SEEMS TO US THAT THE BURDEN OF PROVING THESE FACTS OUGHT REASONABLY
TO REST ON THE COMPLAINANT, BOTH BECAUSE IT HAS ALLEGED THEM AND THEY
ARE ESSENTIAL TO ITS SUCCESS, AND BECAUSE THEY ARE PECULIARLY WITHIN
ITS KNOWLEDGE.  ...  WHAT THE COMPLAINANT ITSELF PAID, AND WITH WHAT
KNOWLEDGE, IT OF COURSE KNOWS AND COULD EASILY PROVE.  THERE IS A
FAILURE OF EVIDENCE, NOT ONLY AS TO BONA FIDES AND WANT OF NOTICE, BUT
AS TO WHAT WAS PAID AND TO WHOM, AND WHEN AND HOW; THE DETAILS OF WHICH
THE MAKER OF THIS PLEA HAS FROM THE EARLIEST TIME BEEN HELD BOUND TO
ALLEGE AND, WHEN PUT IN ISSUE, TO PROVE." 

"THIS SEEMS TO US A MATTER OF PRACTICE OR PROCEDURE AND NOT A MATTER
OF SUBSTANTIVE LAW.  THERE IS NO QUESTION AS TO WHAT ARE THE RIGHTS OF
A BONA FIDE PURCHASER, OR AS TO WHETHER THE FACTS ESTABLISHED MAKE
COMPLAINANT OUT SUCH, BUT ONLY A QUESTION OF HOW AND BY WHOM THE FACTS
SHALL BE SHOWN TO THE COURT.  SUCH MATTERS ARE NOT WITHIN THE DECISION
IN ERIE R. CO. V. TOMPKINS, AND THE CASES FOLLOWING IT." 

"WE HAVE HERE NOT A CASE WHERE A TEXAS STATUTE HAS CREATED THE RIGHT
ASSERTED, OR HAS CREATED A PRESUMPTION, OR IS IN ANY MANNER TO BE
APPLIED AS CONSTRUED IN TEXAS.  THE QUESTION IS SIMPLY WHAT IS THE
PROPER PRACTICE IN COURTS OF EQUITY.  THE PRACTICE FOLLOWED IN THE
STATE COURTS OF TEXAS, WHERE EQUITY COURTS AS SUCH DO NOT EXIST, IS NOT
CONTROLLING." 

WE CANNOT ACCEPT THE VIEW THAT THE QUESTION PRESENTED WAS ONLY ONE OF
PRACTICE IN COURTS OF EQUITY.  RATHER WE THINK IT RELATES TO A
SUBSTANTIAL RIGHT UPON WHICH THE HOLDER OF RECORDED LEGAL TITLE TO
TEXAS LAND MAY CONFIDENTLY RELY.  PETITIONER WAS ENTITLED TO THE
PROTECTION AFFORDED BY THE LOCAL RULE.  IN THE ABSENCE OF EVIDENCE
SHOWING IT WAS NOT A BONA FIDE PURCHASER ITS POSITION WAS SUPERIOR TO A
CLAIMANT ASSERTING AN EQUITABLE INTEREST ONLY.  THIS WAS A VALUABLE
ASSURANCE IN FAVOR OF ITS TITLE. 

CENTRAL VERMONT RY. CO. V. WHITE, 238 U.S. 507, 512, CONSIDERED AN
ANALOGOUS SITUATION AND POINTED OUT THE PRINCIPLE PRESENTLY
APPLICABLE.  PROOF THAT PETITIONER DID NOT PURCHASE FOR VALUE AND IN
GOOD FAITH WAS "PART OF THE VERY SUBSTANCE" OF RESPONDENTS' CAUSE. 

SUNDRY ARGUMENTS ADVANCED HERE TO SUPPORT RESPONDENTS' DEMAND FOR
AFFIRMANCE, NOTWITHSTANDING THE ERRONEOUS PRONOUNCEMENT BELOW, WILL BE
MATTER FOR CONSIDERATION WHEN THE CAUSE COMES AGAIN BEFORE THE CIRCUIT
COURT OF APPEALS.  REVERSED. 

FN1  "IT IS THOROUGHLY SETTLED THAT ONE WHO CLAIMS A SUPERIOR
EQUITABLE TITLE TO LAND AS AGAINST ONE WHO HAS PURCHASED FROM THE
HOLDER OF THE LEGAL TITLE MUST SHOW THAT SUCH PURCHASER DID NOT
PURCHASE FOR VALUE OR PURCHASED WITH NOTICE OF THE OUTSTANDING EQUITY. 
TEAGARDEN V. R.B. GODLEY LUMBER CO., 105 TEX. 616, 154 S.W. 973;
COMMONWEALTH B. & L. ASS'N V. HOWARD (TEX. CIV. APP.) 61 S.W.(2D) 546;
MOORE V. HUMBLE OIL & REF. CO. (TEX. CIV. APP.) 85 S.W.(2D) 943, 944;
TARKENTON V. MARSHALL (TEX. CIV. APP.) 91 S.W.(2D) 473.  THE SAME RULE
APPLIES IN FAVOR OF LIEN HOLDERS.  TEXAS LOAN AGENCY V. TAYLOR, 88 TEX.
47, 29 S.W. 1057; MCALPINE V. BURNETT, 23 TEX. 649, 650."  AND SEE
RITCH V. JARVIS, (TEXAS) 64 S.W.2D 831, 834-835. 
..END :





UNION STOCK YARD CO. V. U.S., 308 U.S. 213 


NO. 40.  ARGUED NOVEMBER 10, 13, 1939.  - DECIDED DECEMBER 4, 1939.  -
AFFIRMED. 


1.  TRANSPORTATION OF LIVESTOCK BY RAIL BEGINS WITH ITS DELIVERY TO
THE CARRIER FOR LOADING ON ITS CARS, AND ENDS ONLY AFTER UNLOADING, FOR
DELIVERY OR TENDER TO THE CONSIGNEE, AT THE PLACE OF DESTINATION.  P.
219. 

2.  THE UNION STOCK YARD AND TRANSIT COMPANY OF CHICAGO LOADS AND
UNLOADS LIVESTOCK USING PLATFORMS AND CHUTES WHICH IT OWNS AND WHICH
ARE THE NECESSARY AND ONLY MEANS OF LOADING AND UNLOADING AT ITS YARD,
TO AND FROM WHICH THE LIVESTOCK IS SHIPPED INTERSTATE.  ITS CHARGES TO
THE RAILROADS FOR THESE SERVICES ARE INCLUDED IN THE CHARGES FOR
TRANSPORTATION COLLECTED BY THE RAILROADS FROM THE SHIPPERS.  ITS YARD
IS THE PRINCIPAL RAILROAD TERMINAL IN CHICAGO FOR THE RECEIPT OF
LIVESTOCK IN CARLOAD LOTS.  IT HOLDS ITSELF OUT TO THE PUBLIC AS
PERFORMING THE LOADING AND UNLOADING SERVICE, AND PERMITS IT TO BE
PERFORMED BY NO OTHER.  HELD, THAT IT IS ENGAGED IN PROVIDING "TERMINAL
FACILITIES" IN THE PERFORMANCE OF "TRANSPORTATION SERVICE" AND IS A
"COMMON CARRIER  ...  RAILROAD" WITHIN THE MEANING OF THE INTERSTATE
COMMERCE ACT; AND AS SUCH ITS CHARGES ARE SUBJECT TO REGULATION BY THE
INTERSTATE COMMERCE COMMISSION.  P. 219. 

3.  THE STOCK YARD COMPANY IS SUCH A COMMON CARRIER AND IS SUBJECT TO
REGULATION OF ITS RATES UNDER THE ACT NOTWITHSTANDING THAT, AS AN
INCIDENT TO THE SERVICE IT RENDERS TO SHIPPERS AND TO THE LINE-HAUL
CARRIERS, IT ACTS AS AGENT OF THE LATTER, AND NOTWITHSTANDING THAT ITS
TERMINAL SERVICE INCLUDES NO RAIL HAUL.  DISTINGUISHING ELLIS V.
INTERSTATE COMMERCE COMM'N, 237 U.S. 434.  P. 220. 

4.  IN AS MUCH AS THE INTERSTATE COMMERCE ACT PLACES THE LOADING AND
UNLOADING FACILITIES AND SERVICES UNDER THE AUTHORITY OF THE INTERSTATE
COMMERCE COMMISSION, THEY ARE EXCLUDED FROM THE JURISDICTION OF THE
SECRETARY OF AGRICULTURE UNDER THE PACKERS AND STOCKYARDS ACT BY THE
TERMS OF SEC. 406 OF THE LATTER ENACTMENT.  P. 221. 

5.  TO THE ISSUE WHETHER THE SERVICE RENDERED BY THE STOCK YARD
COMPANY IN LOADING AND UNLOADING LIVESTOCK IS SUCH AS TO BRING IT
WITHIN THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION, THE
PRACTICES BY OTHERS AT OTHER YARDS ARE IRRELEVANT, AND THEIR BEARING ON
THE ADMINISTRATIVE CONSTRUCTION OF THE STATUTE IN THE PRESENT
CIRCUMSTANCES IS HELD TOO REMOTE AND INDECISIVE TO COMPEL A BURDENSOME
INQUIRY BY THE COMMISSION INTO COLLATERAL ISSUES.  P. 222. 

MERE INACTION, THROUGH FAILURE OF THE COMMISSION TO INSTITUTE
PROCEEDINGS UNDER SEC. 15(7), IS NOT AN ADMINISTRATIVE RULING AND DOES
NOT IMPLY DECISION AS TO THE COMMISSION'S JURISDICTION. 

UNION STOCK YARD & TRANSIT CO. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE DISMISSING A SUIT TO SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTION FOR DECISION UPON THIS APPEAL IS WHETHER, IN
THE SERVICES PERFORMED BY APPELLANT IN LOADING AND UNLOADING LIVESTOCK
AT ITS STOCKYARDS IN CHICAGO, AND SPECIFIED BY ITS TARIFFS FILED WITH
THE INTERSTATE COMMERCE COMMISSION, IT IS A COMMON CARRIER SUBJECT TO
THE INTERSTATE COMMERCE ACT, 24 STAT. 379, AS AMENDED IN 1920, 41 STAT.
474, 49 U.S.C., SECS. 1-27. 

THE CASE COMES HERE ON APPEAL FROM THE FINAL DECREE OF A DISTRICT
COURT OF THREE JUDGES,  FN1 DISMISSING APPELLANT'S SUIT TO SET ASIDE AN
ORDER OF THE INTERSTATE COMMERCE COMMISSION, WHICH DIRECTED THE
CANCELLATION OF APPELLANT'S SUPPLEMENTAL SCHEDULE PROPOSING
CANCELLATION OF ITS RATE SCHEDULES PREVIOUSLY FILED WITH THE
COMMISSION.  CANCELLATION OF LIVESTOCK SERVICES, 227 I.C.C. 716. 
APPELLANT HERE, AS BELOW, ASSAILS THE COMMISSION'S ORDER ON THE GROUND
THAT IN PERFORMING THE SCHEDULED SERVICES APPELLANT IS NOT WITHIN THE
JURISDICTION OF THE COMMISSION AS DEFINED BY THE INTERSTATE COMMERCE
ACT. 

AS APPEARS IN THE COMMISSION'S REPORT, APPELLANT WAS INCORPORATED IN
1865 WITH AUTHORITY TO BUILD AND OPERATE A RAILROAD AND A STOCKYARD,
AND WITH POWER OF EMINENT DOMAIN.  ACTING UNDER ITS CHARTER IT
CONSTRUCTED A STOCKYARD IN CHICAGO AND APPROXIMATELY THREE HUNDRED
MILES OF RAILROAD TRACKS, CONSISTING OF A MAIN LINE CONNECTING WITH THE
TRUNK LINES ENTERING CHICAGO AND SWITCHES TO VARIOUS INDUSTRIES LOCATED
ADJACENT TO ITS TRACKS. 

PRIOR TO 1912 IT HAD TRIED VARIOUS METHODS OF OPERATING ITS TRACKS
AND STOCKYARDS.  AT THAT TIME IT DID NOT CONTROL ANY OF ITS RAILROAD
PROPERTIES OTHER THAN PLATFORMS AND FACILITIES FOR LOADING AND
UNLOADING AT ITS YARD.  THE CHICAGO JUNCTION RAILWAY CO., WHICH, WITH
APPELLANT, WAS CONTROLLED BY A SINGLE HOLDING COMPANY, OPERATED THE
RAILROAD UNDER A FIFTY-YEAR LEASE, PAYING TO APPELLANT AS RENTAL TWO
THIRDS OF ITS NET PROFITS.  IN THAT YEAR THE UNITED STATES BROUGHT SUIT
TO RESTRAIN APPELLANT AND THE JUNCTION COMPANY FROM FURTHER OPERATIONS
IN INTERSTATE COMMERCE UNTIL THEY FILED TARIFFS AS REQUIRED BY SEC. 6
OF THE INTERSTATE COMMERCE ACT.  THE LITIGATION RESULTED IN THE
DECISION OF THIS COURT THAT BOTH WERE COMMON CARRIERS SUBJECT TO THE
ACT.  UNITED STATES V. UNION STOCK YARD & TRANSIT CO., 226 U.S. 286. 
APPELLANT THEN FILED A RATE SCHEDULE WITH THE COMMISSION SPECIFYING ITS
CHARGES FOR LOADING AND UNLOADING ALL RAIL-BORNE LIVESTOCK, AND
CONTINUED ITS PRACTICE OF PERFORMING SERVICES IN LOADING AND UNLOADING
FROM AND TO ITS LIVESTOCK PENS FOR THE TRUNK LINE RAILROADS, CHARGING
THEM THE SCHEDULED RATES FOR THE SERVICE. 

IN THE FOLLOWING YEAR THE JUNCTION COMPANY LEASE WAS CANCELLED AND A
NEW ONE EXECUTED, UNDER WHICH APPELLANT LEASED IN PERPETUITY ALL OF ITS
RAILROAD FACILITIES, EXCEPT THOSE USED FOR LOADING AND UNLOADING
LIVESTOCK, AT AN ANNUAL RENTAL OF $600,000 IN LIEU OF A SHARE OF THE
PROFITS.  THIS WAS FOLLOWED IN 1917 BY AN ATTEMPT BY THE STOCKYARD TO
CHARGE SHIPPERS AN ADDITIONAL AMOUNT FOR THE LOADING AND UNLOADING
SERVICE, WHICH RESULTED IN A REPARATION AWARD BY THE COMMISSION,
SUSTAINED IN ADAMS V. MILLS, 286 U.S. 397.  IN THE SAME YEAR APPELLANT
SOUGHT TO CANCEL ITS TARIFFS ON THE GROUND THAT BY REASON OF THE CHANGE
IN THE LEASE IT WAS NO LONGER A COMMON CARRIER.  THIS CONTENTION WAS
REJECTED BY THE COMMISSION.  LIVESTOCK LOADING AND UNLOADING CHARGES,
52 I.C.C. 209; 58 I.C.C. 164. 

IN 1922 THE JUNCTION COMPANY, WITH THE APPROVAL OF THE COMMISSION,
CHICAGO JUNCTION CASE, 71 I.C.C. 631, 150 I.C.C. 32, SUBLET THE ROAD
FOR NINETY-NINE YEARS, WITH A RENEWAL OPTION, TO THE CHICAGO RIVER &
INDIANA RAILROAD CO., WHOSE CAPITAL STOCK WAS ACQUIRED BY THE NEW YORK
CENTRAL RAILROAD COMPANY.  A RENEWED ATTEMPT BY THE STOCKYARD TO CANCEL
ITS TARIFFS FAILED IN 1935, 213 I.C.C. 330, AND ITS 1937 REPETITION
RESULTED IN THE LIKE ORDER OF THE COMMISSION, WHICH IS THE SUBJECT OF
THE PRESENT SUIT. 

BY CEASING TO OPERATE OR CONTROL ITS RAILROAD DIRECTLY OR INDIRECTLY
APPELLANT HAS RESTRICTED ITS TRANSPORTATION SERVICE TO THE LOADING OR
UNLOADING OF LIVESTOCK AS SPECIFIED IN ITS TARIFF.  IT OWNS THE
PLATFORMS AND CHUTES WHICH ARE THE NECESSARY AND ONLY MEANS OF LOADING
AND UNLOADING AT ITS YARD TO AND FROM WHICH THE LIVESTOCK IS SHIPPED
INTERSTATE BY RAIL.  FOR THIS SERVICE IT CHARGES THE RAILROADS THE
SCHEDULED RATES.  LOADING AND UNLOADING ARE INCLUDED IN THE
TRANSPORTATION SERVICE RENDERED BY THE RAILROADS TO SHIPPERS, THE
CHARGE FOR IT TO SHIPPERS BEING COVERED BY THE LINE-HAUL TARIFFS.  THE
COMMISSION FOUND THAT APPELLANT'S YARD IS THE PRINCIPAL RAILROAD
TERMINAL IN CHICAGO FOR THE RECEIPT OF LIVESTOCK IN CARLOAD LOTS, AND
THAT APPELLANT HOLDS ITSELF OUT TO THE PUBLIC AS PERFORMING THE LOADING
AND UNLOADING SERVICE AND PERMITS IT TO BE PERFORMED BY NO OTHER. 

APPELLANT CONTENDS THAT HAVING DIVESTED ITSELF OF ALL CONTROL AND
PARTICIPATION IN THE OPERATION OF ITS RAILROAD IT IS NO LONGER WITHIN
THE JURISDICTION OF THE COMMISSION OVER "COMMON CARRIERS BY RAILROAD,"
CONFERRED BY THE INTERSTATE COMMERCE ACT, BUT IS SUBJECT TO REGULATION
BY THE SECRETARY OF AGRICULTURE, UNDER THE PACKERS AND STOCKYARDS ACT
OF 1921, 42 STAT. 159, 7 U.S.C., SECS. 181-229. 

BY SEC. 305 OF THAT ACT RATES AND CHARGES FOR STOCKYARD SERVICES
FURNISHED AT A STOCKYARD OR BY A STOCKYARD OWNER ARE REQUIRED TO BE
JUST AND REASONABLE.  AND BY SECS. 309, 310, THE SECRETARY IS GIVEN
AUTHORITY TO REGULATE SUCH RATES.  BY SEC. 301 STOCKYARD SERVICES ARE
DEFINED AS "SERVICES OR FACILITIES FURNISHED AT A STOCKYARD IN
CONNECTION WITH THE RECEIVING, BUYING OR SELLING  ... MARKETING,
FEEDING, WATERING, HOLDING, DELIVERY, SHIPMENT, WEIGHING, OR HANDLING,
IN COMMERCE, OF LIVESTOCK."  IT WILL BE NOTED THAT THE LOADING AND
UNLOADING OF LIVESTOCK ARE NOT SPECIFICALLY INCLUDED IN THE DEFINITION
OF STOCKYARD SERVICES.  FURTHER, AN IMPORTANT EXCEPTION TO THE BROAD
AUTHORITY OF THE SECRETARY IS MADE BY SEC. 406, WHICH PROVIDES:
"NOTHING IN THIS CHAPTER SHALL AFFECT THE POWER OR THE JURISDICTION OF
THE INTERSTATE COMMERCE COMMISSION, NOR CONFER UPON THE SECRETARY
CONCURRENT POWER OR JURISDICTION OVER ANY MATTER WITHIN THE POWER OR
JURISDICTION OF SUCH COMMISSION."  WE ACCORDINGLY TURN TO THE
PROVISIONS OF THE INTERSTATE COMMERCE ACT TO DETERMINE THE EXTENT OF
THE EXCEPTION. 

CARRIER SUBJECT TO THE PROVISIONS OF THE SECTIONS PRESENTLY TO BE
MENTIONED, WHERE NO JOINT RATE IS INVOLVED, SHALL FILE SCHEDULES OF
RATES SHOWING "THE SEPARATELY ESTABLISHED RATES  ...  APPLIED TO THE
THROUGH TRANSPORTATION" AND REQUIRES THAT THE RATE SCHEDULES SHALL
"STATE SEPARATELY ALL TERMINAL CHARGES ...  AND ALL OTHER CHARGES WHICH
THE COMMISSION MAY REQUIRE, ALL PRIVILEGES OR FACILITIES GRANTED OR
ALLOWED, AND ANY RULES OR REGULATIONS WHICH IN ANYWISE CHANGE, AFFECT
OR DETERMINE ANY PART OF THE AGGREGATE OF SUCH AFORESAID RATES  ...  OR
THE VALUE OF THE SERVICE RENDERED TO THE PASSENGER, SHIPPER, OR
CONSIGNEE." 

PROVISIONS OF THIS PART SHALL APPLY TO COMMON CARRIERS ENGAGED IN (A)
THE TRANSPORTATION OF PASSENGERS OR PROPERTY WHOLLY BY RAILROAD ...  "
THE ROAD IN USE BY ANY COMMON CARRIER OPERATING A RAILROAD  ...  ALL
SWITCHES, SPURS, TRACKS, TERMINALS AND TERMINAL FACILITIES OF EVERY
KIND USED OR NECESSARY IN THE TRANSPORTATION  ...  OF  ...  PERSONS OR
PROPERTY  ...  INCLUDING ALL FREIGHT DEPOTS, YARDS OR GROUNDS USED OR
NECESSARY IN THE TRANSPORTATION OR DELIVERY OF ANY SUCH PROPERTY."  IT
DEFINES THE TERM "TRANSPORTATION" AS INCLUDING "LOCOMOTIVES, CARS,  ...
AND ALL INSTRUMENTALITIES AND FACILITIES OF SHIPMENT OR CARRIAGE
IRRESPECTIVE OF OWNERSHIP, OR OF ANY CONTRACT, EXPRESS OR IMPLIED, FOR
THE USE THEREOF, AND ALL SERVICES IN CONNECTION WITH THE RECEIPT,
DELIVERY, ELEVATION AND TRANSFER IN TRANSIT  ... AND HANDLING OF
PROPERTY TRANSPORTED."  SECTION 15(5) PROVIDES, "TRANSPORTATION WHOLLY
BY RAILROAD OF ORDINARY LIVESTOCK IN CARLOAD LOTS DESTINED TO OR
RECEIVED AT PUBLIC STOCKYARDS SHALL INCLUDE ALL NECESSARY SERVICE OF
UNLOADING AND RELOADING ENROUTE, DELIVERY AT PUBLIC STOCKYARDS OF
INBOUND SHIPMENTS INTO SUITABLE PENS, AND RECEIPT AND LOADING AT SUCH
YARDS OF OUTBOUND SHIPMENTS, WITHOUT EXTRA CHARGE THEREFOR TO THE
SHIPPER, CONSIGNEE, OR OWNER  ...  " 

WITHOUT THE AID OF THESE STATUTES THE TRANSPORTATION OF LIVESTOCK BY
RAIL WAS HELD TO BEGIN WITH ITS DELIVERY TO THE CARRIER FOR LOADING
ONTO ITS CARS, AND TO END ONLY AFTER UNLOADING FOR DELIVERY OR TENDER
TO THE CONSIGNEE AT THE PLACE OF DESTINATION.  COVINGTON STOCK-YARDS
CO. V. KEITH, 139 U.S. 128, 136.  THE SAME RULE HAS BEEN REPEATEDLY
APPLIED SINCE THE STATUTE WAS ADOPTED.  ERIE R. CO. V. SHUART, 250 U.S.
465, 468; ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 295 U.S. 193,
198, AND CASES CITED; DENVER UNION STOCK YARD CO. V. UNITED STATES, 304
U.S. 470; 2 HUTCHISON, CARRIERS, 3D ED. SEC. 510.  APPELLANT IS THUS
ENGAGED IN THE PERFORMANCE OF A RAILROAD TRANSPORTATION SERVICE AND
PROVIDES RAILROAD "TERMINAL FACILITIES" AND SERVICES.  IT IS A
"CARRIER" ENGAGED IN "TRANSPORTATION OF PROPERTY WHOLLY BY RAILROAD" AS
THOSE TERMS ARE DEFINED BY THE WORDS OF THE STATUTE. 

THAT APPELLANT'S STOCKYARD IS A TERMINAL OF THE LINEHAUL CARRIERS,
AND THAT IT PERFORMS THEIR RAILROAD TERMINAL SERVICES WITHIN THE
MEANING OF THE ACT WAS RECOGNIZED IN ADAMS V. MILLS, SUPRA, 409, AND
ALSO IN ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, SUPRA.  THERE THE
COMMISSION'S ORDER DIRECTING THE DISCONTINUANCE OF APPELLANT'S YARDAGE
CHARGE TO CONSIGNEES WAS SET ASIDE ON THE SOLE GROUND THAT THE
COMMISSION'S FINDINGS FAILED TO SHOW THAT THE SERVICE FOR WHICH THE
CHARGE WAS MADE WAS ANY PART OF THE LOADING OR UNLOADING SERVICES, OR
OTHERWISE A SERVICE WHICH THE RAIL CARRIER WAS BOUND TO FURNISH. 

THE STATUTE, IT IS TRUE, DOES NOT PURPORT TO SAY WHEN ONE WHO IS A
RAILROAD CARRIER BECAUSE ENGAGED IN FURNISHING RAILROAD TERMINAL
FACILITIES AND SERVICES, IS TO BE DEEMED A "COMMON CARRIER."  BUT THAT
QUESTION WAS PUT AT REST IN UNITED STATES V. BROOKLYN EASTERN DISTRICT
TERMINAL, 249 U.S. 296.  THERE A LOCAL TERMINAL COMPANY RENDERING
TERMINAL SERVICES AS THE AGENT OF NUMEROUS RAIL CARRIERS, WAS HELD TO
BE ENGAGED IN A PUBLIC OR COMMON CALLING, AND HENCE TO BE A COMMON
CARRIER WITHIN THE MEANING OF THE HOURS OF SERVICE ACT, 34 STAT. 1415,
WHICH IS APPLICABLE TO ANY COMMON CARRIER BY RAILROAD ENGAGED IN
INTERSTATE COMMERCE.  CF. SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE
COMMERCE COMM'N, 219 U.S. 498; UNITED STATES V. CALIFORNIA, 297 U.S.
175, 181; UNITED STATES V. SIOUX CITY STOCK YARDS CO., 162 F. 556. 

IT IS NOT IMPORTANT, AS APPELLANT SEEMS TO THINK, THAT, AS AN
INCIDENT TO THE SERVICE IT RENDERS TO SHIPPERS AND TO THE LINE-HAUL
CARRIERS, IT ACTS AS AGENT OF THE LATTER.  THE CHARACTER OF THE
SERVICE, IN ITS RELATION TO THE PUBLIC, DETERMINES WHETHER THE CALLING
IS A PUBLIC ONE, AND A COMMON CARRIER DOES NOT CEASE TO BE SUCH MERELY
BECAUSE IN RENDERING SERVICE TO THE PUBLIC IT ACTS AS THE AGENT OF
ANOTHER.  UNITED STATES V. BROOKLYN EASTERN DISTRICT TERMINAL, SUPRA,
307.  CONNECTING COMMON CARRIERS FREQUENTLY ACT IN THAT CAPACITY FOR
EACH OTHER WITHOUT LOSING THEIR STATUS AS SUCH. 

NOR IS IT OF WEIGHT THAT THE TERMINAL SERVICE INCLUDES NO RAIL-HAUL
(SEE SOUTHERN PACIFIC CO. V. INTERSTATE COMMERCE COMM'N, 219 U.S. 498)
OR THAT OPERATION AND CONTROL OF THE TERMINAL FACILITIES ARE WHOLLY
SEPARATE FROM THOSE OF ANY RAILROAD.  UNITED STATES V. BROOKLYN EASTERN
DISTRICT TERMINAL, SUPRA, 305.  IT IS ENOUGH THAT THE LOADING AND
UNLOADING ARE RAIL TRANSPORTATION SERVICES PERFORMED AT A RAILROAD
TERMINAL AS A COMMON OR PUBLIC CALLING BY ONE WHO, IN RENDERING IT,
ENGAGES IN THE TRANSPORTATION OF PROPERTY BY RAILROAD WITHIN THE
MEANING OF THE ACT. 

ELLIS V. INTERSTATE COMMERCE COMM'N, 237 U.S. 434, ON WHICH APPELLANT
RELIES, DOES NOT HOLD OTHERWISE.  THERE THE COMMISSION SOUGHT A
DISTRICT COURT ORDER TO COMPEL THE EXAMINATION OF WITNESSES IN A
PROCEEDING, INSTITUTED BY THE COMMISSION OF ITS OWN MOTION, FOR THE
INVESTIGATION OF A CORPORATION WHICH LEASED REFRIGERATOR CARS TO
SHIPPERS AND RAILROADS AND MAINTAINED ICING PLANTS AT WHICH IT ICED THE
CARS, THE RAILROAD PAYING FOR THE ICING SERVICE.  THERE WAS NO
ALLEGATION OR PROOF THAT THE CORPORATION WAS ENGAGED IN A COMMON
CALLING OR HELD ITSELF OUT AS READY OR WILLING TO SUPPLY CARS OR
SERVICES ON REASONABLE REQUEST.  IN HOLDING THAT THE CASE WAS NOT AN
APPROPRIATE ONE FOR THE RELIEF SOUGHT BECAUSE THE COMPANY WAS NOT
WITHIN THE JURISDICTION OF THE COMMISSION, THE COURT SAID, P. 443:  "IT
IS TRUE THAT THE DEFINITION OF TRANSPORTATION IN SEC. 1 OF THE ACT
INCLUDES SUCH INSTRUMENTALITIES AS THE ARMOUR CAR LINES LETS TO THE
RAILROADS, BUT THE DEFINITION IS A PRELIMINARY TO THE REQUIREMENT THAT
THE CARRIER SHALL FURNISH THEM UPON REASONABLE REQUEST, NOT THAT THE
OWNERS AND BUILDERS SHALL BE REGARDED AS CARRIERS, CONTRARY TO THE
TRUTH."    THIS COURT HAS SINCE RECOGNIZED THAT LOADING AND UNLOADING
SERVICES SUCH AS ARE HERE INVOLVED ARE COMMON CARRIER SERVICES PLACED
UNDER THE AUTHORITY OF THE COMMISSION BY THE INTERSTATE COMMERCE ACT. 
ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, SUPRA; DENVER UNION STOCK
YARD CO. V. UNITED STATES, SUPRA, 477.  AND UNLESS THE RESTRICTION OF
SEC. 406 OF THE PACKERS AND STOCKYARDS ACT UPON THE AUTHORITY OF THE
SECRETARY OF AGRICULTURE IN FAVOR OF THAT OF THE COMMISSION REFERS TO
SUCH SERVICES, THE PURPOSE OF THE SECTION IS NOT APPARENT.  NONE OTHER
IS SUGGESTED.  SEE ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, SUPRA,
199.  AS WE THINK THE STATUTE PLAINLY PLACES APPELLANT'S LOADING AND
UNLOADING FACILITIES AND SERVICES UNDER THE AUTHORITY OF THE
COMMISSION, THEY ARE WITHDRAWN FROM THE JURISDICTION OF THE SECRETARY
OF AGRICULTURE BY THE TERMS OF SEC. 406 OF THE PACKERS AND STOCKYARDS
ACT,  FN2  AND WE FIND IT UNNECESSARY TO CONSIDER THE QUESTION, MUCH
ARGUED AT THE BAR, WHETHER THE SERVICES COULD BE MORE CONVENIENTLY AND
ADVANTAGEOUSLY REGULATED BY THE ONE ADMINISTRATIVE AGENCY THAN BY THE
OTHER. 

APPELLANT ASKS THAT THE ORDER BE SET ASIDE FOR WANT OF THE "FULL
HEARING" BY THE COMMISSION, REQUIRED BY SEC. 15(7) OF THE INTERSTATE
COMMERCE ACT.  IN THE COURSE OF THE HEARINGS BEFORE THE COMMISSION
APPELLANT OFFERED IN A VARIETY OF WAYS TO PROVE THE CONDITIONS
PREVAILING AT STOCKYARDS OTHER THAN APPELLANT'S, AND THAT THE
COMMISSION HAD NOT ASSERTED JURISDICTION OVER LOADING AND UNLOADING
SERVICES PERFORMED AT THOSE YARDS.  APPELLANT STATES THAT THE EVIDENCE
WOULD HAVE SHOWN THAT THERE ARE ONE HUNDRED AND THIRTY-FIVE OTHER
STOCKYARDS IN THE UNITED STATES UNDER REGULATION BY THE SECRETARY OF
AGRICULTURE,  FN3  WHICH PERFORM LOADING AND UNLOADING SERVICES, FOR
WHICH THE RAILROADS PAY, UNDER CONDITIONS SIMILAR TO THOSE IN THE
CHICAGO YARD; THAT ALTHOUGH, TO THE KNOWLEDGE OF THE COMMISSION, THIS
HAS BEEN THE CASE FOR MANY YEARS, IT HAS NOT ASSERTED ITS JURISDICTION
OVER ANY OF THESE YARDS.  THIS, IT IS ARGUED, WOULD HAVE ESTABLISHED A
PRACTICAL CONSTRUCTION OF THE STATUTE BY THE COMMISSION, RELEVANT AND
MATERIAL TO THE INQUIRY BECAUSE OF THE RULE THAT A SETTLED OR UNIFORM
ADMINISTRATIVE CONSTRUCTION OF A DOUBTFUL STATUTE IS OF WEIGHT IN
DETERMINING ITS MEANING.  BOSTON & MAINE RAILROAD V. HOOKER, 233 U.S.
97; POCKET VETO CASE, 279 U.S. 655, 688, 689; LOUISVILLE & NASHVILLE R.
CO. V. UNITED STATES, 282 U.S. 740.  THE EXCLUSION OF THE PROFFERED
EVIDENCE BY THE COMMISSION AND ITS ALLEGED FAILURE TO MAKE A PROPER
RECORD OF THE OFFER, IT IS URGED, HAVE DEPRIVED THE APPELLANT OF A FULL
HEARING. 

WE THINK THE RECORD ADEQUATELY SHOWS THAT THE COMMISSION EXCLUDED THE
OFFERED PROOF AS APPELLANT HAS CHARACTERIZED IT HERE, BUT WE CONCLUDE
THAT THE COMMISSION WAS FREE TO REJECT IT.  THE ISSUE TO BE RESOLVED IN
THE PRESENT PROCEEDING IS WHETHER THE SERVICE RENDERED BY APPELLANT AT
ITS CHICAGO STOCKYARD BROUGHT IT WITHIN THE JURISDICTION OF THE
COMMISSION.  TO THIS ISSUE THE PRACTICES BY OTHERS AT OTHER YARDS ARE
IRRELEVANT AND THEIR BEARING ON THE ADMINISTRATIVE CONSTRUCTION OF THE
STATUTE IN THE PRESENT CIRCUMSTANCES IS, WE THINK, TOO REMOTE AND
INDECISIVE TO COMPEL A BURDENSOME INQUIRY INTO COLLATERAL ISSUES. 

THE COMMISSION HAS CONSISTENTLY RULED THAT APPELLANT'S LOADING AND
UNLOADING SERVICES ARE WITHIN ITS JURISDICTION UNDER CONDITIONS WHICH
APPEAR OF RECORD TO HAVE REMAINED UNCHANGED SINCE 1922.  APPELLANT IS
FREE, AS IT HAS BEEN THROUGHOUT, TO SHOW ANY RULING OR ACTION TAKEN BY
THE COMMISSION INVOLVING AN ADMINISTRATIVE CONSTRUCTION OF THE STATUTE,
ALTHOUGH IT IS PLAIN THAT IN THE FACE OF THE PRESENT RECORD SUCH
RULINGS COULD NOT ESTABLISH A CONSISTENT ACCEPTANCE BY THE COMMISSION
OF THE CONSTRUCTION FOR WHICH APPELLANT CONTENDS.  SEE UNITED STATES V.
CHICAGO, N.S. & M.R. CO., 288 U.S. 1; CF. ESTATE OF SANFORD V.
HELVERING, ANTE, P. 39.  BUT MERE INACTION, THROUGH FAILURE OF THE
COMMISSION TO INSTITUTE PROCEEDINGS UNDER SEC. 15(7), IS NOT AN
ADMINISTRATIVE RULING AND DOES NOT IMPLY DECISION AS TO THE
COMMISSION'S JURISDICTION.  IF THE FAILURE TO ACT IN THE CASE OF YARDS
OTHER THAN THE PRESENT ONE IS TO BE TAKEN AS AN ADMINISTRATIVE
CONSTRUCTION OF THE STATUTE PERSUASIVE HERE, WE WOULD BE FORCED TO
CONCLUDE THAT A JURISDICTION WHICH THE STATUTE HAS PLAINLY CONFERRED
EITHER ON THE SECRETARY OR THE COMMISSION, HAS BEEN LOST, ALTHOUGH,
WITH RESPECT TO THIS APPELLANT, JURISDICTION HAS BEEN CONSISTENTLY
ASSERTED BY THE COMMISSION, WHILE THE SECRETARY HAS AS CONSISTENTLY
REMAINED PASSIVE.  THERE IS A PRACTICAL LIMIT TO WHICH INQUIRY INTO
COLLATERAL ISSUES MAY BE EXTENDED IN PURSUIT OF THE TRIVIAL.  WE THINK
THAT LIMIT WAS REACHED HERE.  AFFIRMED. 

FN1  SECS. 210 AND 238(4) OF THE JUDICIAL CODE AS AMENDED BY THE ACT
OF FEBRUARY 13, 1925, C. 229, 43 STAT. 983, 28 U.S.C., SECS. 47A, 345. 

FN2  IF THIS WERE DOUBTFUL, DOUBT WOULD BE REMOVED BY THE LEGISLATIVE
HISTORY.  S. 3944, 66TH CONGRESS, IN PROVIDING A FEDERAL LIVESTOCK
COMMISSION TO REGULATE PACKERS AND STOCKYARDS DID NOT CONTAIN SUCH A
SAVING CLAUSE.  THE HOUSE COMMITTEE ON AGRICULTURE PROPOSED A
SUBSTITUTE BILL GIVING CONTROL OF THE STOCKYARDS TO THE INTERSTATE
COMMERCE COMMISSION BECAUSE "THE COMMISSION ALREADY HAS CONTROL OVER
TRANSPORTATION OF CATTLE, WHICH DOES NOT END UNTIL THEY ARE UNLOADED AT
THE YARDS.  ...  "  H. REPT. 1297, 66TH CONG., 3RD SESS., P. 9. 

IN THE 67TH CONGRESS THE HOUSE COMMITTEE ON AGRICULTURE PROPOSED THE
BILL SUBSTANTIALLY IN THE FORM FINALLY ADOPTED AS THE PACKERS AND
STOCKYARDS ACT, CONTAINING THE SAVING CLAUSE IN FAVOR OF THE COMMERCE
COMMISSION.  THE CHAIRMAN IN INTRODUCING THE BILL IN THE HOUSE SAID:
"IT IS PROPOSED TO GIVE THE SECRETARY OF AGRICULTURE JURISDICTION OVER
THE PACKERS, STOCKYARDS, COMMISSION MEN, TRADERS, BUYERS, AND SELLERS,
AND ALL ACTIVITIES CONNECTED WITH THE SLAUGHTERING AND MARKETING OF
LIVESTOCK AND LIVE-STOCK PRODUCTS IN INTERSTATE COMMERCE; THAT IS THE
SECRETARY SHALL HAVE JURISDICTION FROM THE TIME THE LIVESTOCK IS
UNLOADED AT THE TERMINAL YARDS AND AFTER IT IS OUT OF THE JURISDICTION
OF THE INTERSTATE COMMERCE COMMISSION.  UP TO THE TIME OF UNLOADING THE
LIVESTOCK THE INTERSTATE COMMERCE COMMISSION HAS JURISDICTION OVER THE
SHIPMENT, DISTRIBUTION, AND OWNERSHIP OF STOCK, REFRIGERATOR CARS, AND
OTHER EQUIPMENT, AND TRANSPORTATION RATES, INCLUDING BELT LINES AND
TERMINAL ROADS."  CONG. REC., VOL. 61, PART 2, P. 1800. 

FN3  THE SECRETARY HAS NOT ASSERTED JURISDICTION OVER THE LOADING AND
UNLOADING SERVICE AT PUBLIC STOCKYARDS.  SECRETARY OF AGRICULTURE V.
DENVER UNION STOCK YARD CO., BUREAU OF ANIMAL INDUSTRY DOCKET NO. 450,
P. 10(1937); SEE LETTER TO CHAIRMAN OF SENATE COMMITTEE ON AGRICULTURE
AND FORESTRY, HEARINGS ON S. 2129, 75TH CONG., 1ST SESS., P. 6. 
..END :






















UNITED STATES V. LOWDEN, 308 U.S. 225 


NO. 343.  ARGUED NOVEMBER 6, 1939.  - DECIDED DECEMBER 4, 1939.  - 29
F.SUPP.  9, REVERSED. 


COMMISSION MAY AUTHORIZE CARRIERS TO CONSOLIDATE OR LEASE THEIR
PROPERTIES WHERE IT FINDS THAT THAT ACTION, SUBJECT TO SUCH CONDITIONS
AND MODIFICATIONS AS IT SHALL FIND TO BE JUST AND REASONABLE, WILL BE
IN HARMONY WITH AND IN FURTHERANCE OF THE PLAN OF CONSOLIDATION OF
RAILWAY PROPERTIES ESTABLISHED PURSUANT TO PARAGRAPH (3) OF THAT
THE INTERSTATE COMMERCE COMMISSION FOR AUTHORITY TO LEASE THE ROAD AND
PROPERTIES OF ONE RAILROAD TO ANOTHER WITH CONSEQUENT LARGE SAVINGS IN
THE OPERATING COSTS OF THE ROAD, THE COMMISSION FOUND THAT THE PROPOSED
LEASE WOULD PROMOTE THE PUBLIC INTEREST, AND AUTHORIZED IT UPON
CONDITIONS WHICH IT FOUND TO BE JUST AND REASONABLE, VIZ. THAT THE
EMPLOYEES OF THE LEASED ROAD BE COMPENSATED FOR A LIMITED TIME FOR ANY
REDUCTION OF SALARY; THAT DISMISSED EMPLOYEES BE PAID PARTIAL
COMPENSATION FOR THE LOSS OF THEIR EMPLOYMENT; AND THAT TRANSFERRED
EMPLOYEES BE PAID MOVING AND TRAVELING EXPENSES INCLUDING LOSSES
INCURRED THROUGH THEIR BEING FORCED TO SELL THEIR HOUSES.  HELD: 

1.  THE TERM "PUBLIC INTEREST" AS USED IN THE STATUTE MAY BE
UNDERSTOOD FOR THE PURPOSES OF THIS CASE AS RELATING NOT TO PUBLIC
INTEREST IN GENERAL BUT TO PUBLIC INTEREST IN THE MAINTENANCE OF AN
ADEQUATE AND EFFICIENT TRANSPORTATION SERVICE.  P. 230. 

2.  THE POLICY OF CONSOLIDATING THE RAILWAYS IS SO INTIMATELY RELATED
TO THE MAINTENANCE OF AN ADEQUATE AND EFFICIENT RAIL TRANSPORTATION
SYSTEM THAT THE "PUBLIC INTEREST" IN THE ONE CAN NOT BE DISSOCIATED
FROM THAT IN THE OTHER.  P. 232. 

3.  IN DETERMINING WHETHER CONDITIONS ATTACHED TO AN ORDER
AUTHORIZING A LEASE WILL PROMOTE THE PUBLIC INTEREST UNDER SEC.
5(4)(B), THE COMMISSION MAY CONSIDER THEIR EFFECT UPON THE NATIONAL
POLICY OF CONSOLIDATION AS WELL AS THEIR MORE IMMEDIATE EFFECT UPON THE
ADEQUACY AND EFFICIENCY OF THE TRANSPORTATION SYSTEM.  P. 232. 

4.  INTERPRETING THE TERM "PUBLIC INTEREST" NOT IN A GENERAL SENSE
BUT AS MEANING PUBLIC INTEREST IN MAINTAINING AN ADEQUATE AND EFFICIENT
TRANSPORTATION SYSTEM, AN ORDER OF THE COMMISSION AUTHORIZING A LEASE
UNDER SEC. 5(4)(B) MAY AFFIX REASONABLE CONDITIONS FOR THE COMPENSATION
OF RAILWAY EMPLOYEES WHO WILL BE SERIOUSLY AFFECTED.  PP. 228, 238. 

5.  IT CANNOT BE SAID AS A MATTER OF LAW, THAT THE PRESCRIBED
CONDITIONS WHOSE JUSTICE AND REASONABLENESS ARE NOT CHALLENGED WILL NOT
ADVANCE THE PUBLIC INTEREST IN THE STATUTORY SENSE BY FACILITATING THE
NATIONAL POLICY OF RAILROAD CONSOLIDATION AND BY PROMOTING THE ADEQUACY
AND EFFICIENCY OF THE RAILROAD TRANSPORTATION SYSTEM BY PREVENTING
INTERRUPTION OF INTERSTATE COMMERCE THROUGH LABOR DISPUTES AND BY THEIR
EFFECT ON EMPLOYEE MORALE.  P. 238. 

6.  THE ACT AS SO APPLIED IS WITHIN THE COMMERCE POWER.  P. 239. 

7.  THE CARRIER IS NOT DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF
LAW IN BEING REQUIRED TO DEVOTE PART OF THE SAVINGS RESULTING FROM THE
EXERCISE OF THE LEASING PRIVILEGE TO COMPENSATE EMPLOYEES FOR LOSSES
RESULTING FROM IT.  P. 240. 

UNITED STATES ET AL. V. LOWDEN ET AL., TRUSTEES OF THE ESTATE OF THE
CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO., ETC. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH SET
ASIDE CONDITIONS ATTACHED BY THE INTERSTATE COMMERCE COMMISSION TO AN
ORDER PERMITTING ONE CARRIER TO LEASE ITS RAILROAD TO ANOTHER. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL RAISES THE QUESTION WHETHER THE INTERSTATE COMMERCE
COMMISSION, IN APPROVING AND AUTHORIZING A LEASE OF A RAILROAD BY ONE
RAILROAD COMPANY TO ANOTHER, UNDER SEC. 5(4)(B) OF THE INTERSTATE
COMMERCE ACT AS AMENDED, (48 STAT. 217, 49 U.S.C., SEC. 5(4)(B) ENACTED
IN SUBSTANCE AS SEC. 407(5)(6) OF THE TRANSPORTATION ACT OF 1920, 41
STAT. 481), HAS AUTHORITY TO PRESCRIBE AS A CONDITION OF ITS ORDER,
THAT CERTAIN EMPLOYEES OF THE LESSOR SHALL RECEIVE PARTIAL COMPENSATION
FOR THE LOSS WHICH THEY MAY SUFFER, BY REASON OF THEIR DISCHARGE OR
TRANSFER AS A RESULT OF THE LEASE. 

APPELLEES ARE TRUSTEES OF THE CHICAGO, ROCK ISLAND & GULF COMPANY AND
OF THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, BOTH IN
BANKRUPTCY FOR PURPOSES OF REORGANIZATION UNDER SEC. 77 OF THE
BANKRUPTCY ACT.  THEY APPLIED TO THE INTERSTATE COMMERCE COMMISSION FOR
AUTHORITY UNDER SEC. 5(4)(B) TO LEASE THE RAILROAD AND PROPERTIES OF
THE GULF COMPANY TO THEMSELVES AS TRUSTEES OF THE PACIFIC COMPANY AT AN
ANNUAL RENTAL EQUAL TO THE NET OPERATING INCOME OF THE LEASED
PROPERTY.  ON THE APPLICATION, WHICH WAS TWICE HEARD BY THE COMMISSION,
EVIDENCE WAS SUBMITTED FROM WHICH THE COMMISSION FOUND THAT THE GULF
COMPANY, WHOSE ENTIRE CAPITAL STOCK IS OWNED BY THE PACIFIC COMPANY, IS
OWNER OF SIX HUNDRED AND THIRTY-TWO MILES OF RAILROAD IN TEXAS WHICH IT
OPERATES SEPARATELY FROM THE 8,138 MILES OF RAILROAD OF THE PACIFIC
COMPANY; THAT THE PURPOSE OF THE PROPOSED LEASE WAS TO COMBINE THE
OPERATION OF THE TWO LINES IN ORDER TO EFFECT SAVINGS IN OPERATING
COSTS THROUGH THE ELIMINATION OF THE TEXAS ACCOUNTING OFFICES OF THE
GULF COMPANY. 

THE COMMISSION FOUND THAT THE LEASE WOULD NOT IMPOSE UPON THE PUBLIC
ANY CHANGE IN CONDITIONS AFFECTING TRAIN OPERATION; THAT IT WOULD HAVE
NO EFFECT ON RATES OR ROUTES AND WOULD RESULT IN NO CHANGE OF SERVICE
TO THE PUBLIC.  IT FOUND THAT THE ELIMINATION OF THE TEXAS ACCOUNTING
OFFICES WOULD RESULT IN AN ANNUAL SAVING OF $100,000, SIX OR SEVEN
THOUSAND DOLLARS OF WHICH WOULD ACCRUE TO THE GULF COMPANY AND THE
REMAINDER TO THE PACIFIC COMPANY, TO BE EFFECTED THROUGH THE ULTIMATE
DISMISSAL OF FORTY-NINE OF THE GULF ACCOUNTING EMPLOYEES AND THE
TRANSFER OF TWENTY OTHERS TO THE CHICAGO OFFICES OF THE PACIFIC
COMPANY.  THE COMMISSION ALSO FOUND THAT THE WELFARE OF THE EMPLOYEES
AFFECTED BY THE ELIMINATION OF THE ACCOUNTING OFFICE IS ONE OF THE
MATTERS OF PUBLIC INTEREST WHICH THE COMMISSION MUST CONSIDER IN
PROCEEDINGS UNDER SEC. 5(4)(B). 

IT ACCORDINGLY AUTHORIZED THE LEASE UPON THE CONDITIONS WHICH IT
FOUND TO BE JUST AND REASONABLE:  THAT FOR A PERIOD NOT EXCEEDING FIVE
YEARS EACH RETAINED EMPLOYEE SHOULD BE COMPENSATED FOR ANY REDUCTION IN
SALARY SO LONG AS HE IS UNABLE, IN THE EXERCISE OF HIS SENIORITY RIGHTS
UNDER EXISTING RULES AND PRACTICES TO OBTAIN A POSITION WITH
COMPENSATION EQUAL TO HIS COMPENSATION AT THE DATE OF THE LEASE; THAT
DISMISSED EMPLOYEES UNABLE TO OBTAIN EQUIVALENT EMPLOYMENT BE PAID
PARTIAL COMPENSATION FOR THE LOSS OF THEIR EMPLOYMENT IN SPECIFIED
AMOUNTS AND FOR SPECIFIED PERIODS DEPENDING ON THE LENGTH OF THEIR
SERVICE, AND THAT THE TRANSFERRED EMPLOYEES BE PAID THEIR TRAVELING AND
MOVING EXPENSES INCLUDING LOSSES INCURRED THROUGH BEING FORCED TO SELL
THEIR HOMES.  THE MAXIMUM COST OF COMPLIANCE WITH THE CONDITIONS, IT
WAS FOUND, WOULD BE $290,000 SPREAD OVER A PERIOD OF FIVE YEARS, DURING
WHICH THE SAVINGS EFFECTED BY THE LEASE WOULD BE NOT LESS THAN
$500,000.  THE COMMISSION FOUND THAT THE PROPOSED LEASE, WITH THE
SPECIFIED CONDITIONS "WILL BE IN HARMONY WITH AND IN FURTHERANCE OF OUR
PLAN FOR THE CONSOLIDATION OF RAILROAD PROPERTIES AND WILL PROMOTE THE
PUBLIC INTEREST." 

IN THE PRESENT SUIT, BROUGHT BY APPELLEES, THE DISTRICT COURT OF
THREE JUDGES (URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, 38 STAT.
208, 219, 28 U.S.C., SECS. 45, 47A), GRANTED THE RELIEF SOUGHT, AND
DECREED THAT THE CONDITIONS OF THE COMMISSION'S ORDER BE SET ASIDE AND
THAT THE COMMISSION BE ENJOINED FROM ENFORCING THEM.  THE CASE COMES
HERE ON APPEAL UNDER SEC. 238 OF THE JUDICIAL CODE, 28 U.S.C., SEC.
345. 

APPELLEES CONTEND, AS THE DISTRICT COURT HELD, THAT THE COMMISSION
WAS WITHOUT THE AUTHORITY OF ANY ACT OF CONGRESS TO ATTACH THE
PRESCRIBED CONDITIONS TO ITS ORDER.  CONSEQUENTLY, THEY ARGUE THAT THE
COURTS MAY APPROPRIATELY SET THEM ASIDE AS OF NO EFFECT, LEAVING THE
REMAINDER OF THE ORDER TO STAND AS THE COMMISSION'S UNQUALIFIED
APPROVAL OF THE LEASE, ALTHOUGH THE COMMISSION GAVE NO INDICATION THAT
IT WOULD HAVE AUTHORIZED THE LEASE WITHOUT THE CONDITIONS. 

...  OF THE COMMISSION, AS PROVIDED IN SUBDIVISION (B), FOR TWO OR MORE
CARRIERS TO CONSOLIDATE OR MERGE THEIR PROPERTIES ...  OR FOR ANY
CARRIER  ...  TO  ...  LEASE  ...  THE PROPERTIES  ...  OF ANOTHER  ...
" SUBDIVISION (B) PROVIDES THAT THE COMMISSION ON APPLICATION BY THE
CARRIER OR CARRIERS CONCERNED MAY, AFTER HEARING, AUTHORIZE SUCH A
CONSOLIDATION OR LEASE, AND DIRECTS THAT "IF AFTER SUCH HEARING THE
COMMISSION FINDS THAT, SUBJECT TO SUCH TERMS AND CONDITIONS AND SUCH
MODIFICATIONS AS IT SHALL FIND TO BE JUST AND REASONABLE, THE PROPOSED
CONSOLIDATION  ...  (OR) LEASE  ...  WILL BE IN HARMONY WITH AND IN
FURTHERANCE OF THE PLAN FOR THE CONSOLIDATION OF RAILWAY PROPERTIES
ESTABLISHED PURSUANT TO PARAGRAPH (3), AND WILL PROMOTE THE PUBLIC
INTEREST, IT MAY ENTER AN ORDER APPROVING  ...  SUCH CONSOLIDATION  ...
(OR) LEASE  ...  UPON THE TERMS AND CONDITIONS AND WITH THE
MODIFICATIONS SO FOUND TO BE JUST AND REASONABLE." 

IN NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12,
WE POINTED OUT THAT THE PHRASE "PUBLIC INTEREST" IN THIS SECTION DOES
NOT REFER GENERALLY TO MATTERS OF PUBLIC CONCERN APART FROM THE PUBLIC
INTEREST IN THE MAINTENANCE OF AN ADEQUATE RAIL TRANSPORTATION SYSTEM;
THAT IT IS USED IN A MORE RESTRICTED SENSE DEFINED BY REFERENCE TO THE
PURPOSES OF THE TRANSPORTATION ACT OF 1920, OF WHICH THE SECTION IS A
PART AND WHICH, AS HAD BEEN RECOGNIZED IN EARLIER OPINIONS OF THIS
COURT, SOUGHT THROUGH THE EXERCISE OF THE NEW AUTHORITY GIVEN TO THE
COMMISSION TO SECURE A MORE ADEQUATE AND EFFICIENT TRANSPORTATION
SYSTEM.  SEE NEW ENGLAND DIVISIONS CASES, 261 U.S. 184; DAYTON-GOOSE
CREEK RY. CO. V. UNITED STATES, 263 U.S. 456; TEXAS & PACIFIC RY. CO.
V. GULF, C. & S.F. RY. CO., 270 U.S. 266, 277.  THUS RESTRICTED, THE
TERM PUBLIC INTEREST "AS USED IN THE STATUTE, IS NOT A MERE GENERAL
REFERENCE TO PUBLIC WELFARE BUT AS SHOWN BY THE CONTEXT AND PURPOSES OF
THE ACT HAS DIRECT RELATION TO ADEQUACY OF TRANSPORTATION SERVICE, TO
ITS ESSENTIAL CONDITIONS OF ECONOMY AND EFFICIENCY AND TO APPROPRIATE
PROVISION AND BEST USE OF TRANSPORTATION FACILITIES."  TEXAS V. UNITED
STATES, 292 U.S. 522, 531. 

APPELLEES DO NOT CHALLENGE THE COMMISSION'S CONTENTION THAT THE
CONDITIONS ARE GERMANE TO THE TRANSACTION INVOLVED IN THE LEASE BECAUSE
THE PURPOSE OF THE CONDITIONS IS TO MITIGATE THE DIRECT EFFECT OF THE
LEASE UPON THE EMPLOYEES.  SEE UNITED STATES V. CHICAGO, M., ST. P. &
P.R. CO., 282 U.S. 311, 324, 339, 340.  BUT THEY INSIST THAT THE
CONDITIONS WHICH THE COMMISSION IS PERMITTED BY THIS SECTION TO ATTACH
TO ITS ORDER MUST ALSO CONFORM TO THE STANDARD OF PUBLIC INTEREST WHICH
THE STATUTE SETS UP TO GUIDE THE COMMISSION'S ACTION.  FROM THIS
PREMISE THEY ARGUE THAT THE PRESCRIBED CONDITIONS ARE UNAUTHORIZED
BECAUSE UNRELATED TO THE PUBLIC INTEREST IN ITS STATUTORY SENSE.  THEY
MAINTAIN THAT A CARRIER'S EMPLOYEES, AS SUCH, ARE NOT PART OF THE
PUBLIC WHOSE INTEREST IS TO BE PROMOTED BY THE LEASE, AND THAT THEIR
INTEREST IN KEEPING THEIR EMPLOYMENT WITHOUT LOSS OF COMPENSATION IS OF
PRIVATE CONCERN AND NO PART OF THAT PUBLIC INTEREST IN THE MAINTENANCE
OF AN ADEQUATE AND EFFICIENT TRANSPORTATION SYSTEM WHICH THE STATUTE
CONTEMPLATES. 

ACCEPTING THE PREMISE, AS WE MAY FOR PRESENT PURPOSES, WITHOUT
CONSIDERING THE CONTENTION OF THE COMMISSION THAT THE CONDITIONS IF
JUST AND REASONABLE, NEED NOT BE RELATED TO THE OTHER STATUTORY
STANDARDS, THE ISSUE IS NARROWED TO A SINGLE QUESTION WHETHER WE CAN
SAY, AS MATTER OF LAW, THAT THE GRANTING OR WITHHOLDING OF THE
PROTECTION AFFORDED TO THE EMPLOYEES BY THE PRESCRIBED CONDITIONS CAN
HAVE NO INFLUENCE OR EFFECT UPON THE MAINTENANCE OF AN ADEQUATE AND
EFFICIENT TRANSPORTATION SYSTEM WHICH THE STATUTE RECOGNIZES AS A
MATTER OF PUBLIC CONCERN. 

APPELLEES DO NOT ATTACK THE SUFFICIENCY OF THE EVIDENCE ON WHICH THE
COMMISSION'S FINDINGS ARE BASED, AND THAT EVIDENCE WAS NOT SUBMITTED TO
THE DISTRICT COURT FOR REVIEW.  HENCE WE ARE FREE TO DISTURB THE
FINDINGS ONLY IF WE CAN SAY THAT THERE CAN BE NO RATIONAL BASIS FOR
THEM.  MISSISSIPPI VALLEY BARGE LINE CO. V. UNITED STATES, 292 U.S.
282; SWAYNE & HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 304; ROCHESTER
TELEPHONE CORP. V. UNITED STATES, 307 U.S. 125, 146.  APPELLEES DO NOT
DENY THAT THE USE OF PART OF THE SAVINGS RESULTING FROM THE LEASE TO
COMPENSATE THE EMPLOYEES FOR THE LOSS WHICH IT WILL OCCASION, IS JUST
AND REASONABLE SO FAR AS THE INTEREST AND RELATIONS OF EMPLOYER AND
EMPLOYEE ARE CONCERNED; OR THAT THE LEASE WILL BE IN HARMONY WITH AND
FURTHER THE COMMISSION'S PLAN FOR CONSOLIDATION OF THE RAILROADS AS THE
COMMISSION FOUND.  THEY URGE ONLY THAT THE CONDITIONS IMPOSED CAN HAVE
NO RELATIONSHIP TO THE MAINTENANCE OF AN ADEQUATE AND EFFICIENT
TRANSPORTATION SYSTEM AND IN CONSEQUENCE CANNOT IN ANY CIRCUMSTANCES BE
SAID TO PROMOTE THE PUBLIC INTEREST IN THE STATUTORY SENSE. 

THE PROPOSED LEASE IN ITS RELATION TO THE TRANSFER OR DISMISSAL OF
EMPLOYEES AND TO AN ADEQUATE AND EFFICIENT TRANSPORTATION SYSTEM, IS
NOT TO BE VIEWED AS AN ISOLATED TRANSACTION OR APART FROM THE
COMMISSION'S PLAN FOR CONSOLIDATION OF THE RAILROADS.  AS A RESULT OF
THE ENACTMENT OF THE TRANSPORTATION ACT IN 1920, CONSOLIDATION OF THE
RAILROADS OF THE COUNTRY, IN THE INTEREST OF ECONOMY AND EFFICIENCY,
BECAME AN ESTABLISHED NATIONAL POLICY, AND THE EFFECTIVE CONSOLIDATION
OF THE RAILROADS IN CONFORMITY TO THE PROVISIONS OF THE ACT AND TO THE
PLAN OF CONSOLIDATION WHICH THE COMMISSION WAS DIRECTED TO PREPARE
BECAME A MATTER OF PUBLIC INTEREST.  THE POLICY OF CONSOLIDATION IS SO
INTIMATELY RELATED TO THE MAINTENANCE OF AN ADEQUATE AND EFFICIENT RAIL
TRANSPORTATION SYSTEM THAT THE "PUBLIC INTEREST" IN THE ONE CANNOT BE
DISSOCIATED FROM THAT IN THE OTHER.  HENCE, IN CONSIDERING WHETHER THE
PUBLIC INTEREST UNDER SEC. 5(4)(B) WILL BE PROMOTED BY THE CONDITIONS
OF AN ORDER AUTHORIZING A CONSOLIDATION OR LEASE, THE COMMISSION IS
FREE TO CONSIDER THEIR EFFECT UPON THE NATIONAL POLICY OF CONSOLIDATION
AS WELL AS THEIR MORE IMMEDIATE EFFECT ON THE ADEQUACY AND EFFICIENCY
OF THE TRANSPORTATION SYSTEM. 

OBEDIENT TO THE MANDATE OF SEC. 5(2) OF THE ACT THE COMMISSION HAS
PREPARED AND PUBLISHED A PLAN UNDER WHICH IT IS PROPOSED THAT THE
RAILROADS OF THE COUNTRY BE CONSOLIDATED INTO A LIMITED NUMBER OF LARGE
SYSTEMS.  CONSOLIDATION OF RAILROADS, 159 I.C.C. 522, 185 I.C.C. 403. 
BY SEC. 5 OF THE ACT THE BAN ON CONSOLIDATION OF RAILWAY CARRIERS WAS
REMOVED, AND ACTING UNDER IT THE COMMISSION HAS GRANTED AUTHORITY FOR
NUMEROUS CONSOLIDATIONS AND LEASES IN FURTHERANCE OF THE PLAN.  IN THE
PREPARATION AND EXECUTION OF THE PLAN IT SPEEDILY BECAME APPARENT THAT
THE GREAT SAVINGS WHICH WOULD RESULT FROM CONSOLIDATION COULD NOT BE
EFFECTED WITHOUT PROFOUNDLY AFFECTING THE PRIVATE INTERESTS OF THOSE
IMMEDIATELY CONCERNED IN THE MAINTENANCE OF THE EXISTING NATIONWIDE
RAILWAY SYSTEM, THE RAILROAD SECURITY HOLDERS AND EMPLOYEES.  THE
SECURITY HOLDERS ARE USUALLY, THOUGH NOT ALWAYS FAVORABLY AFFECTED BY
ECONOMIES RESULTING FROM CONSOLIDATION.  FN1  BUT THE COMMISSION HAS
ESTIMATED IN ITS REPORT ON UNIFICATION OF THE RAILROADS THAT 75% OF THE
SAVINGS WILL BE AT THE EXPENSE OF RAILROAD LABOR.  NOT ONLY MUST
UNIFICATION RESULT IN WHOLESALE DISMISSALS AND EXTENSIVE TRANSFERS,
INVOLVING EXPENSE TO TRANSFERRED EMPLOYEES, BUT IN THE LOSS OF
SENIORITY RIGHTS WHICH, BY COMMON PRACTICE OF THE RAILROADS ARE
RESTRICTED IN THEIR OPERATION TO THOSE MEMBERS OF GROUPS WHO ARE
EMPLOYED AT SPECIFIED POINTS OR DIVISIONS.  IT IS THUS APPARENT THAT
THE STEPS INVOLVED IN CARRYING OUT THE CONGRESSIONAL POLICY OF RAILROAD
CONSOLIDATION IN SUCH MANNER AS TO SECURE THE DESIRED ECONOMY AND
EFFICIENCY WILL UNAVOIDABLY SUBJECT RAILROAD LABOR RELATIONS TO SERIOUS
STRESS AND ITS HARSH CONSEQUENCES MAY SO SERIOUSLY AFFECT EMPLOYEE
MORALE AS TO REQUIRE THEIR MITIGATION BOTH IN THE INTEREST OF THE
SUCCESSFUL PROSECUTION OF THE CONGRESSIONAL POLICY OF CONSOLIDATION AND
OF THE EFFICIENT OPERATION OF THE INDUSTRY ITSELF,  FN2  BOTH OF WHICH
ARE OF PUBLIC CONCERN WITHIN THE MEANING OF THE STATUTE.    ONE MUST
DISREGARD THE ENTIRE HISTORY OF RAILROAD LABOR RELATIONS IN THE UNITED
STATES TO BE ABLE TO SAY THAT THE JUST AND REASONABLE TREATMENT OF
RAILROAD EMPLOYEES IN MITIGATION OF THE HARDSHIP IMPOSED ON THEM IN
CARRYING OUT THE NATIONAL POLICY OF RAILWAY CONSOLIDATION, HAS NO
BEARING ON THE SUCCESSFUL PROSECUTION OF THAT POLICY AND NO
RELATIONSHIP TO THE MAINTENANCE OF AN ADEQUATE AND EFFICIENT
TRANSPORTATION SYSTEM.  AS WAS POINTED OUT BY COMMISSIONER EASTMAN IN
HIS CONCURRING OPINION IN THIS CASE THE PROTECTION AFFORDED TO
EMPLOYEES BY THE CHALLENGED CONDITIONS IS SUBSTANTIALLY THAT PROVIDED
IN EVENT OF CONSOLIDATION BY AN AGREEMENT ENTERED INTO IN MAY, 1936,
BETWEEN 219, THE GREAT MAJORITY, OF THE RAILROAD LINES OF THE COUNTRY,
AND 21 LABOR ORGANIZATIONS.  FN3  HE ALSO DIRECTED ATTENTION TO THE
FACT THAT THE COMMITTEE OF SIX, THREE OF WHOM WERE RAILROAD EXECUTIVES,
IN THEIR REPORT TO THE PRESIDENT OF DECEMBER 23, 1938, RECOMMENDED THAT
THE FEDERAL AGENCY PASSING UPON RAILROAD CONSOLIDATION "REQUIRE AS A
PREREQUISITE TO APPROVAL A FAIR AND EQUITABLE ARRANGEMENT TO PROTECT
THE INTERESTS OF  ...  EMPLOYEES,"  FN4  AND THAT THIS REPORT HAD BEEN
APPROVED BY THE DIRECTORS OF THE ASSOCIATION OF AMERICAN RAILROADS. 

WE CAN HARDLY SUPPOSE THAT THE RAILROADS, IN ENTERING INTO THIS
AGREEMENT AND ENDORSING THIS RECOMMENDATION LEFT OUT OF ACCOUNT THEIR
OWN INTEREST IN THE MAINTENANCE OF TRANSPORTATION SERVICE OR THAT THEIR
INTEREST IN THIS RESPECT DIFFERS OR IS SEPARABLE FROM THAT OF THE
PUBLIC INTEREST.  IN FACT, BEFORE THIS ACTION BY THE RAILROADS THE
COMMISSION ITSELF HAD TAKEN THE VIEW THAT THE WELFARE OF DISMISSED
EMPLOYEES MUST BE CONSIDERED IN PASSING UPON PROPOSED CONSOLIDATIONS,
FN5 AND IN ITS SIXTH ANNUAL REPORT IN 1892 IT DECLARED IN  RECOGNITION
OF THE SAME PRINCIPLE, THAT "RELATIONS EXISTING BETWEEN RAILWAY
CORPORATIONS AND THEIR EMPLOYEES ARE ALWAYS OF PUBLIC INTEREST."  FN6
THE FEDERAL COORDINATOR OF RAILROADS, IN HIS FOURTH ANNUAL REPORT TO
CONGRESS IN 1936, RECOMMENDED THE ENACTMENT OF A COMPREHENSIVE SYSTEM
OF DISMISSAL COMPENSATION, STATING THAT SUCH A SYSTEM "WOULD ENHANCE
THE SAFETY OR EFFICIENCY OF RAILROAD SERVICE."  H. DOC. NO. 394, 74TH
CONG., 2ND SESS., P. 56.  FN7 

THE NOW EXTENSIVE HISTORY OF LEGISLATION REGULATING THE RELATIONS OF
RAILROAD EMPLOYEES AND EMPLOYERS PLAINLY EVIDENCES THE AWARENESS OF
CONGRESS THAT JUST AND REASONABLE TREATMENT OF RAILROAD EMPLOYEES IS
NOT ONLY AN ESSENTIAL AID TO THE MAINTENANCE OF A SERVICE UNINTERRUPTED
BY LABOR DISPUTES, BUT THAT IT PROMOTES EFFICIENCY, WHICH SUFFERS
THROUGH LOSS OF EMPLOYEE MORALE WHEN THE DEMANDS OF JUSTICE ARE
IGNORED.  TITLE 3 OF THE TRANSPORTATION ACT OF 1920,  FN8  WHICH WAS
ENACTED AT THE SAME TIME AS THE PROVISIONS REENACTED IN SUBSTANCE IN
SEC. 5(4)(B), SET UP A "LABOR BOARD" TO DECIDE RAILROAD LABOR DISPUTES
INVOLVING GRIEVANCES, RULES AND WORKING CONDITIONS, AND DECLARED IN
SEC. 301 "IT SHALL BE THE DUTY OF ALL CARRIERS AND THEIR OFFICERS,
EMPLOYEES, AND AGENTS, TO EXERT EVERY REASONABLE EFFORT AND ADOPT EVERY
AVAILABLE MEANS TO AVOID ANY INTERRUPTION TO THE OPERATION OF ANY
CARRIER GROWING OUT OF ANY DISPUTE BETWEEN THE CARRIER OR EMPLOYEES OR
SUBORDINATE OFFICIALS."  CONGRESS HAS PASSED SUCCESSIVE MEASURES FOR
ARBITRATION OF RAILROAD DISPUTES BETWEEN RAILROAD EMPLOYEES AND
EMPLOYERS, ALL AIMED AT THE PREVENTION OF INTERRUPTIONS OF RAILROAD
SERVICE THROUGH SUCH DISPUTES, AND CULMINATING IN THE PASSAGE OF THE
RAILWAY LABOR ACT OF 1926, 44 STAT. 577, AND IN ITS AMENDMENTS IN 1934,
48 STAT. 1185, 45 U.S.C., SECS. 151, 163; TEXAS & NEW ORLEANS R. CO. V.
BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, 281 U.S. 548; VIRGINIAN RY.
CO. V. FEDERATION, 300 U.S. 515.  BY THE WAGNER LABOR RELATIONS ACT OF
1935, 49 STAT. 449, 29 U.S.C., 151, IT RECOGNIZED AND SOUGHT TO PREVENT
THE INTERFERENCE WITH INTERSTATE COMMERCE WHICH MAY ENSUE FROM LABOR
DISPUTES ARISING IN INDUSTRY NOT ENGAGED IN TRANSPORTATION.  SEE
NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301
U.S. 1, 42; NATIONAL LABOR RELATIONS BOARD V. FAINBLATT, 306 U.S. 601,
604. 

THE SAFETY APPLIANCE ACT OF 1893, 27 STAT. 531; SEE SOUTHERN RAILWAY
CO. V. UNITED STATES, 222 U.S. 20; THE HOURS OF SERVICE ACT OF 1907, 34
STAT. 1415; SEE BALTIMORE & OHIO R. CO. V. INTERSTATE COMMERCE COMM'N,
221 U.S. 612, AND THE FEDERAL EMPLOYERS LIABILITY ACT OF 1908, 35 STAT.
65; SEE SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 51, WERE
DESIGNED MAINLY TO INSURE THE SAFETY AND WELFARE OF RAILROAD EMPLOYEES
AND THE CONSTITUTIONALITY OF THOSE MEASURES WAS SUSTAINED IN PART ON
THE GROUND THAT THEY FOSTERED THE COMMERCE IN WHICH THE EMPLOYEES WERE
ENGAGED.  IN PASSING THE ADAMSON ACT OF 1916, 39 STAT. 721, FIXING THE
WAGES OF RAILROAD EMPLOYEES, CONGRESS THOUGHT THAT IT WAS SAFEGUARDING
THE RAILROADS OF THE COUNTRY FROM INTERRUPTION WHICH MIGHT RESULT FROM
LABOR DISPUTES AND THE CONSTITUTIONALITY OF THE ACT WAS SUSTAINED ON
THAT GROUND.  WILSON V. NEW, 243 U.S. 332, 351.  AND IN THE ACT OF
1934, AS AMENDED IN 1937, 48 STAT. 1283; 50 STAT. 307, 45 U.S.C., SECS.
201, 214, 228(A) TO (R), PROVIDING FOR A RETIREMENT AND PENSION PLAN
FOR RAILROAD EMPLOYEES, CONGRESS DECLARED IN TERMS THAT THE PLAN WAS
ADOPTED FOR THE PURPOSE OF "PROMOTING EFFICIENCY AND SAFETY IN
INTERSTATE TRANSPORTATION." 

IN THE LAST REGULAR SESSION OF CONGRESS, AN ACT TO AMEND THE
INTERSTATE COMMERCE ACT WAS PASSED BY THE SENATE, S. 2009, 76TH CONG.,
1ST SESS.  THE HOUSE PASSED A SUBSTITUTE BILL EMBODYING EXTENSIVE
CHANGES.  H. REPT. 1217, 76TH CONG., 1ST SESS.  BOTH BILLS ARE NOW IN
CONFERENCE.  BUT BOTH AS PASSED CONTAIN A PROVISION CARRYING INTO
EFFECT THE RECOMMENDATION OF THE COMMITTEE OF SIX, SEE S. REPT. 433,
76TH CONG., 1ST SESS., P. 29, BY DIRECTING THE COMMISSION TO REQUIRE
"AS A PREREQUISITE TO ITS APPROVAL OF ANY PROPOSED TRANSACTION
(CONSOLIDATION OR LEASE UNDER SEC. 5(4)(B)) A FAIR AND EQUITABLE
ARRANGEMENT TO PROTECT THE INTEREST OF THE EMPLOYEES AFFECTED."  BOTH
BILLS AS ENACTED DECLARE IT "TO BE THE NATIONAL TRANSPORTATION POLICY
OF THE CONGRESS  ... TO ENCOURAGE FAIR WAGES AND EQUITABLE WORKING
CONDITIONS, ALL TO THE END OF DEVELOPING, COORDINATING AND PRESERVING A
NATIONAL TRANSPORTATION SYSTEM  ...  BY  ...  RAIL  ...  ADEQUATE TO
MEET THE NEEDS OF THE COMMERCE OF THE UNITED STATES  ...  "  CONGRESS
HAS THUS DECLARED THAT FAIR AND EQUITABLE PROVISION FOR THE
COMPENSATION OF LOSSES THROWN UPON EMPLOYEES AS THE RESULT OF AN
AUTHORIZED CONSOLIDATION OR LEASE PROMOTES THE NATIONAL TRANSPORTATION
POLICY BY DEVELOPING, COORDINATING AND PRESERVING THE RAILROAD
TRANSPORTATION SYSTEM. 

IN THE LIGHT OF THIS RECORD OF PRACTICAL EXPERIENCE AND CONGRESSIONAL
LEGISLATION, WE CANNOT SAY THAT THE JUST AND REASONABLE CONDITIONS
IMPOSED ON APPELLEES IN THIS CASE WILL NOT PROMOTE THE PUBLIC INTEREST
IN ITS STATUTORY MEANING BY FACILITATING THE NATIONAL POLICY OF
RAILROAD CONSOLIDATION; THAT IT WILL NOT TEND TO PREVENT INTERRUPTION
OF INTERSTATE COMMERCE THROUGH LABOR DISPUTES GROWING OUT OF LABOR
GRIEVANCES, OR THAT IT WILL NOT PROMOTE THAT EFFICIENCY OF SERVICE
WHICH COMMON EXPERIENCE TEACHES IS ADVANCED BY THE JUST AND REASONABLE
TREATMENT OF THOSE WHO SERVE.  IN THE LIGHT OF THAT RECORD TOO WE DO
NOT DOUBT THAT CONGRESS, BY ITS CHOICE OF THE BROAD LANGUAGE OF SEC.
5(4)(B) INTENDED AT LEAST TO PERMIT THE COMMISSION, IN AUTHORIZING
RAILROAD CONSOLIDATIONS AND LEASES, TO IMPOSE UPON CARRIERS CONDITIONS
RELATED, AS THESE ARE, TO THE PUBLIC POLICY OF THE TRANSPORTATION ACT
TO FACILITATE RAILROAD CONSOLIDATION, AND TO PROMOTE THE ADEQUACY AND
EFFICIENCY OF THE RAILROAD TRANSPORTATION SYSTEM. 

THE FACT THAT A BILL HAS RECENTLY BEEN INTRODUCED IN CONGRESS AND
APPROVED BY BOTH ITS HOUSES, REQUIRING AS A MATTER OF NATIONAL RAILWAY
TRANSPORTATION POLICY THE PROTECTION OF EMPLOYEES SUCH AS THE
COMMISSION HAS GIVEN HERE, DOES NOT MILITATE AGAINST THIS CONCLUSION. 
DOUBTS WHICH THE COMMISSION AT ONE TIME ENTERTAINED BUT LATER RESOLVED
IN FAVOR OF ITS AUTHORITY TO IMPOSE THE CONDITIONS, WERE FOLLOWED BY
THE RECOMMENDATION OF THE COMMITTEE OF SIX THAT FAIR AND EQUITABLE
ARRANGEMENTS FOR THE PROTECTION OF EMPLOYEES BE "REQUIRED."  IT WAS
THIS RECOMMENDATION WHICH WAS EMBODIED IN THE NEW LEGISLATION.  SEN.
REP. NO. 433, 76TH CONG., 1ST SESS., P. 29.  WE THINK THE ONLY EFFECT
OF THIS ACTION WAS TO GIVE LEGISLATIVE EMPHASIS TO A POLICY AND A
PRACTICE ALREADY RECOGNIZED BY SEC. 5(4)(B) BY MAKING THE PRACTICE
MANDATORY INSTEAD OF DISCRETIONARY, AS IT HAD BEEN UNDER THE EARLIER
ACT. 

IT IS SAID THAT THE STATUTE, AS WE HAVE CONSTRUED IT, IS
UNCONSTITUTIONAL BECAUSE NOT WITHIN THE CONGRESSIONAL POWER TO REGULATE
INTERSTATE COMMERCE AND IS A DENIAL OF DUE PROCESS.  IT IS TRUE THAT IN
RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330, IN DECLARING
THE RAILROAD RETIREMENT ACT OF JUNE 27, 1934, 48 STAT. 1283, NOT TO BE
A VALID REGULATION OF INTERSTATE COMMERCE, IT WAS SAID, AMONG OTHER
REASONS ADVANCED TO SUPPORT THAT CONCLUSION, THAT A COMPULSORY
RETIREMENT SYSTEM FOR RAILROAD EMPLOYEES CAN HAVE NO RELATION TO THE
PROMOTION OF EFFICIENCY, ECONOMY OR SAFETY OF RAILROAD OPERATION.  BUT
NOTWITHSTANDING WHAT WAS SAID THERE AND EVEN IF WE WERE DOUBTFUL
WHETHER THE PARTICULAR PROVISIONS MADE HERE FOR THE PROTECTION OF
EMPLOYEES COULD HAVE THE EFFECT WHICH WE HAVE INDICATED UPON RAILROAD
CONSOLIDATION AND UPON THE ADEQUACY AND EFFICIENCY OF THE RAILROAD
TRANSPORTATION SYSTEM, WE COULD NOT SAY THAT THE CONGRESSIONAL JUDGMENT
THAT THOSE CONDITIONS HAVE A RELATION TO THE PUBLIC INTEREST AS DEFINED
BY THE STATUTE IS WITHOUT RATIONAL BASIS.  CF. SOUTH CAROLINA HIGHWAY
DEPT. V. BARNWELL BROS., 303 U.S. 177, 189, 191; UNITED STATES V.
CAROLENE PRODUCTS CO., 304 U.S. 144, 147; PITMAN V. HOME OWNERS' LOAN
CORP., ANTE, P. 21. 

IF WE ARE RIGHT IN OUR CONCLUSION THAT THE STATUTE IS A PERMISSIBLE
REGULATION OF INTERSTATE COMMERCE, THE EXERCISE OF THAT POWER TO
FOSTER, PROTECT AND CONTROL THE COMMERCE WITH PROPER REGARD FOR THE
WELFARE OF THOSE WHO ARE IMMEDIATELY CONCERNED IN IT, AS WELL AS THE
PUBLIC AT LARGE, IS UNDOUBTED.  SECOND EMPLOYERS' LIABILITY CASES,
SUPRA, 47; DAYTON-GOOSE CREEK RY. CO. V. UNITED STATES, 263 U.S. 456,
478; UNITED STATES V. CAROLENE PRODUCTS CO., SUPRA, 147; MULFORD V.
SMITH, 307 U.S. 38.  NOR DO WE PERCEIVE ANY BASIS FOR SAYING THAT THERE
IS A DENIAL OF DUE PROCESS BY A REGULATION OTHERWISE PERMISSIBLE, WHICH
EXTENDS TO THE CARRIER A PRIVILEGE RELIEVING IT OF THE COSTS OF
PERFORMANCE OF ITS CARRIER DUTIES, ON CONDITION THAT THE SAVINGS BE
APPLIED IN PART TO COMPENSATE THE LOSS TO EMPLOYEES OCCASIONED BY THE
EXERCISE OF THE PRIVILEGE.  THAT WAS DECIDED IN PRINCIPLE IN DAYTON
GOOSE CREEK RY. CO. V. UNITED STATES, SUPRA.  THERE IT WAS HELD THAT
THE FIFTH AMENDMENT DOES NOT FORBID THE COMPULSORY APPLICATION OF
INCOME, ATTRIBUTABLE TO A PRIVILEGE ENJOYED BY A RAILROAD AS A RESULT
OF COMMISSION ACTION, TO SPECIFIED PURPOSES "IN THE FURTHERANCE OF THE
PUBLIC INTEREST IN RAILROAD TRANSPORTATION."  SEC. 422(10),
TRANSPORTATION ACT, 41 STAT. 490.  MOREOVER WE CANNOT SAY THAT THIS
LIMITED AND SPECIAL APPLICATION OF THE PRINCIPLE, FULLY RECOGNIZED IN
OUR CASES SUSTAINING WORKMEN'S COMPENSATION ACTS, THAT A BUSINESS MAY
BE REQUIRED TO CARRY THE BURDEN OF EMPLOYEE WASTAGE INCIDENT TO ITS
OPERATION, INFRINGES DUE PROCESS.  SECOND EMPLOYERS' LIABILITY CASES,
SUPRA; NEW YORK CENTRAL R. CO. V. WHITE, 243 U.S. 188; MOUNTAIN TIMBER
CO. V. WASHINGTON, 243 U.S. 219; CUDAHY PACKING CO. V. PARRAMORE, 263
U.S. 418.  REVERSED. 

FN1  IN SEVERAL CASES THE COMMISSION HAS DISAPPROVED PROPOSALS FOR
CONSOLIDATIONS AND FOR ACQUISITION OF CONTROL BECAUSE OF A FAILURE TO
DEAL FAIRLY WITH MINORITY STOCKHOLDERS.  NICKEL PLATE UNIFICATION, 105
I.C.C. 425; UNIFICATION OF SOUTHWESTERN LINES, 124 I.C.C. 401.  IN
OTHERS IT HAS APPROVED THE PROPOSAL ON CONDITION THAT THESE OBJECTIONS
BE REMOVED.  BUFFALO, ROCHESTER & PITTSBURGH R. CO., 158 I.C.C. 779;
BUFFALO & SUSQUEHANNA R. CORP. CONTROL, 162 I.C.C. 656; UPPER COOS R.
CONTROL, 166 I.C.C. 76; SPRINGFIELD TERMINAL RY. CO. CONTROL, 166
I.C.C. 90; DENVER & SALT LAKE R. CO. CONTROL, 170 I.C.C. 4; ST. LOUIS
SOUTHWESTERN RY. CO. CONTROL, 180 I.C.C. 175.  SEE UNITED STATES V.
CHICAGO, M., ST. P. & P.R. CO., 282 U.S. 311, 337. 

FN2  ON SEVERAL OCCASIONS STRIKES OF RAILROAD EMPLOYEES AFFECTED BY
CONSOLIDATIONS OF PLANT FACILITIES HAVE THREATENED.  TO AVOID
INTERRUPTION OF TRANSPORTATION SERVICE AN EMERGENCY BOARD WAS INVOKED
IN 1929 UNDER THE RAILWAY LABOR ACT OF 1926 TO ARBITRATE THE DISPUTE
BETWEEN THE RAILROAD AND THE EMPLOYEES OF THE TEXAS & PACIFIC RAILWAY
COMPANY.  THE BOARD AWARDED THE EMPLOYEES COMPENSATION FOR LOSS FROM
DEPRECIATION OF THE VALUE OF THEIR HOMES (CF. CLAUSE 4 IN THE ORDER
HERE INVOLVED).  THE BOARD, AFTER EXTENSIVE HEARINGS, FOUND THAT SUCH A
REQUIREMENT WAS REASONABLE IN VIEW OF THE FACT THAT RAILROADS
THEMSELVES HAD ON SEVERAL PRIOR OCCASIONS COMPENSATED THE EMPLOYEES
AFFECTED.  28 MONTHLY LABOR REVIEW, 1191(1929).  SEE ALSO 43 MONTHLY
LABOR REVIEW, 867(1936) WHERE DISMISSAL COMPENSATION WAS AGREED UPON IN
SIMILAR CIRCUMSTANCES UNDER THREAT OF A STRIKE. 

FN3  THE CHICAGO, ROCK ISLAND & PACIFIC SYSTEM, REPRESENTED HERE BY
APPELLEE, WAS A PARTY TO THIS AGREEMENT.  42 MONTHLY LABOR REVIEW
1503(1936); 57 TRAFFIC WORLD 995(1936). 

FN4  REPORT OF COMMITTEE APPOINTED SEPTEMBER 20, 1938, BY THE
PRESIDENT OF THE UNITED STATES, TO SUBMIT RECOMMENDATIONS UPON THE
GENERAL TRANSPORTATION SITUATION (DECEMBER 23, 1938). 

FN5  CONSOLIDATION OF RAILROADS, 185 I.C.C. 403, 427; UNIFICATION OF
LINES IN SOUTHERN NEW JERSEY, 193 I.C.C. 183, 198; ST. PAUL BRIDGE &
TERMINAL RY. CO. CONTROL, 199 I.C.C. 588.  FOR LATER CASES TO THE SAME
EFFECT, SEE ASSOCIATED RAILWAYS COMPANY ACQUISITION AND SECURITIES, 228
I.C.C. 277, 336; LOUISIANA & ARKANSAS RY. CO., MERGER, 230 I.C.C. 156;
LOUISIANA & ARKANSAS RY. CO., CONTROL, 233 I.C.C. 37, 123.    FN6
SIXTH ANNUAL REPORT OF INTERSTATE COMMERCE COMMISSION (1892), P. 323. 

FN7  FOR A SIMILAR CONCLUSION, SEE J. DOUGLAS BROWN, ET AL., RAILWAY
LABOR SURVEY, SOCIAL SCIENCE RESEARCH COUNCIL, DIVISION OF INDUSTRY &
TRADE (1933), 1, 94; ROBERTSON, THE STAKE OF RAILROAD LABOR IN THE
TRANSPORTATION PROBLEM, 187 ANN. AM. ACAD.  88(1936). 

FN8  THIS ACT RESULTED FROM THE EXPERIENCES OF THE DIRECTOR-GENERAL
IN OPERATING THE RAILROADS DURING THE WORLD WAR PERIOD.  SHARFMAN, THE
INTERSTATE COMMERCE COMMISSION, VOL. I, P. 181.  THE DIRECTOR-GENERAL
RECOGNIZED THE NECESSITY OF MAINTAINING A LOYAL AND DEVOTED PERSONNEL
IN THE INTEREST OF UNINTERRUPTED SERVICE.  THIRTY-THIRD ANNUAL REPORT
OF THE INTERSTATE COMMERCE COMMISSION (1919), P. 4.  IN AGREEMENTS
EXECUTED BY THE DIRECTOR-GENERAL WITH SEVERAL RAILROAD UNIONS,
PROVISION WAS MADE FOR PROTECTION OF SENIORITY RIGHTS AND FOR FREE
TRANSPORTATION FOR THE EMPLOYEE, HIS FAMILY AND HOUSEHOLD GOODS (CF.
CLAUSE 3 OF ORDER HERE INVOLVED), WHEN CONSOLIDATIONS OF FACILITIES
WERE ORDERED BY THE DIRECTOR-GENERAL.  SEE AGREEMENT BETWEEN THE
DIRECTOR-GENERAL OF RAILROADS AND THE BROTHERHOOD OF RAILWAY AND
STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES
(1920), RULE 77. 
..END :

















LABOR BOARD V. NEWPORT NEWS CO., 308 U.S. 241 


NO. 20.  ARGUED NOVEMBER 6, 7, 1939.  - DECIDED DECEMBER 4, 1939.  - 101
F.2D 841, REVERSED. 


1.  UPON REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, THE
CIRCUIT COURT OF APPEALS MAY CONSIDER ADDITIONAL FACTS, OCCURRING
BEFORE THE DECISION AND ORDER OF THE BOARD HAD BEEN PROMULGATED, WHICH
THE BOARD IN A SUPPLEMENTAL CERTIFICATE CERTIFIED AS PART OF THE
RECORD.  P. 248. 

2.  UPON REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD,
THE CIRCUIT COURT OF APPEALS MAY NOT CONSIDER FACTS CONTAINED IN BRIEFS
FILED IN THE PROCEEDING IN THAT COURT, BUT WHICH ARE NOT A PART OF THE
RECORD CERTIFIED BY THE BOARD.  SUCH FACTS MAY BE ADDED TO THE
CERTIFIED RECORD ONLY IN THE MANNER PRESCRIBED BY SEC. 10(E) OF THE
ACT.  P. 249. 

3.  A FINDING BY THE NATIONAL LABOR RELATIONS BOARD THAT AN EMPLOYER
HAD DOMINATED, GIVEN FINANCIAL AND OTHER ASSISTANCE TO, AND INTERFERED
WITH THE ADMINISTRATION OF A LABOR ORGANIZATION OF ITS EMPLOYEES, HELD
SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 250. 

4.  A PROVISION IN A PLAN FOR THE GOVERNANCE OF A LABOR ORGANIZATION,
WHEREBY THE PLAN MAY NOT BE AMENDED WITHOUT THE APPROVAL OF THE
EMPLOYER, DEPRIVES THE EMPLOYEES OF THE COMPLETE FREEDOM OF ACTION
GUARANTEED TO THEM BY THE NATIONAL LABOR RELATIONS ACT.  P. 249. 

5.  AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD REQUIRING AN
EMPLOYER TO WITHDRAW RECOGNITION FROM AN ORGANIZATION OF ITS EMPLOYEES
AND TO DISESTABLISH IT - BASED UPON THE BOARD'S FINDING, SUPPORTED BY
EVIDENCE, THAT THE EMPLOYER HAD FOR YEARS DOMINATED AND INTERFERED WITH
THE ORGANIZATION, AND THE BOARD'S CONCLUSION, WARRANTED BY THE RECORD,
THAT BECAUSE OF THAT HISTORY THE ORGANIZATION WAS INCAPABLE OF SERVING
THE EMPLOYEES AS THEIR GENUINE REPRESENTATIVE FOR THE PURPOSE OF
COLLECTIVE BARGAINING - SUSTAINED.  P. 251. 

UPON THE RECORD IN THIS CASE, THE BOARD WAS AUTHORIZED TO ORDER THE
DISESTABLISHMENT OF THE LABOR ORGANIZATION, NOTWITHSTANDING THE FACTS
THAT THE ORGANIZATION HAD OPERATED TO THE APPARENT SATISFACTION OF THE
EMPLOYEES; THAT NO SERIOUS LABOR DISPUTES HAD OCCURRED DURING ITS
EXISTENCE; AND THAT IN A REFERENDUM THE EMPLOYEES HAD SIGNIFIED THEIR
DESIRE FOR ITS CONTINUANCE. 

NATIONAL LABOR RELATIONS BOARD V. NEWPORT NEWS SHIPBUILDING & DRY DOCK
CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 307 U.S. 617, TO REVIEW A DECREE MODIFYING AND DIRECTING
THE ENFORCEMENT, AS MODIFIED, OF AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN A CASE DULY INSTITUTED AND HEARD, THE NATIONAL LABOR RELATIONS
BOARD ISSUED AN ORDER,  FN1 PURSUANT TO THE PROVISIONS OF SEC. 10(C)
FN2  OF THE NATIONAL LABOR RELATIONS ACT, REQUIRING THE RESPONDENT,
NEWPORT NEWS SHIPBUILDING & DRY DOCK COMPANY:  (1) TO CEASE AND DESIST
FROM (A) DOMINATING OR OTHERWISE INTERFERING WITH THE ADMINISTRATION OF
THE EMPLOYEES' REPRESENTATIVE COMMITTEE, A LABOR ORGANIZATION,  FN3  OR
THE FORMATION OR ADMINISTRATION OF ANY OTHER LABOR ORGANIZATION OF ITS
EMPLOYES; (B) FROM INTERFERING WITH, RESTRAINING, OR COERCING ITS
EMPLOYES IN THE EXERCISE OF THE RIGHT GUARANTEED THEM BY SEC. 7  FN4
OF THE ACT.  THE ORDER FURTHER REQUIRED THE COMPANY (2) TO TAKE
AFFIRMATIVE ACTION, NAMELY:  (A) TO WITHDRAW ALL RECOGNITION FROM THE
COMMITTEE AS THE REPRESENTATIVE OF ANY OF ITS EMPLOYES FOR THE PURPOSE
OF DEALING WITH THE COMPANY CONCERNING LABOR CONDITIONS AND WAGES, AND
COMPLETELY TO DISESTABLISH THE COMMITTEE AS SUCH REPRESENTATIVE; (B) TO
POST COPIES OF THE ORDER THROUGHOUT THE PLANT; (C) TO MAINTAIN SAID
NOTICES FOR THIRTY DAYS; AND (D) TO NOTIFY THE BOARD'S REGIONAL
DIRECTOR OF THE STEPS TAKEN TO COMPLY WITH THE ORDER. 

THE ORDER WAS BASED UPON FINDINGS THAT THE RESPONDENT HAD DOMINATED
AND INTERFERED WITH THE FORMATION AND ADMINISTRATION OF THE COMMITTEE,
HAD CONTRIBUTED TO IT FINANCIAL AND OTHER SUPPORT, AND WAS STILL
DOMINATING AND INTERFERING WITH THE COMMITTEE, CONTRARY TO SEC. 8(1)
AND (2)  FN5 OF THE ACT.  FN6 

THE COMPANY PETITIONED THE CIRCUIT COURT OF APPEALS FOR REVIEW.  THE
BOARD ANSWERED PRAYING THAT THE COURT DISMISS THE COMPANY'S PETITION
AND DECREE ENFORCEMENT.  THE COURT HELD THAT THE BOARD HAD JURISDICTION
OF THE CAUSE, BUT THAT ITS HOLDING THAT THE COMPANY HAD DOMINATED AND
INTERFERED WITH THE FORMATION AND ADMINISTRATION OF THE COMMITTEE WAS
WITHOUT SUPPORT IN THE EVIDENCE.  THE COURT DECREED THAT SEC. 1(A) AND
(B) AND SEC. 2(B)(C) AND (D) OF THE BOARD'S ORDER SHOULD BE ENFORCED
BUT THAT SEC. 2(A), WHICH REQUIRED THE WITHDRAWAL OF RECOGNITION OF THE
COMMITTEE AND ITS DISESTABLISHMENT AS A REPRESENTATIVE OF THE EMPLOYES,
SHOULD BE STRICKEN FROM THE ORDER.  WE GRANTED CERTIORARI BECAUSE OF
ASSERTED CONFLICT WITH DECISIONS OF THIS COURT.  FN7 

THE RESPONDENT DOES NOT PRESS THE CLAIM ADVANCED IN THE COURT BELOW
THAT THE BOARD LACKED JURISDICTION.  THE SOLE ISSUE HERE JOINED IS AS
TO THE PROPRIETY OF THAT PORTION OF THE BOARD'S ORDER WHICH CONSTRAINED
THE RESPONDENT TO WITHDRAW RECOGNITION OF THE COMMITTEE AND TO
DISESTABLISH IT AS THE BARGAINING REPRESENTATIVE OF THE EMPLOYES. 
RESOLUTION OF THE ISSUE REQUIRES THAT WE DETERMINE WHETHER THE BOARD'S
ULTIMATE FINDING OF DOMINATION AND INTERFERENCE BY THE EMPLOYER HAS
SUBSTANTIAL SUPPORT IN THE EVIDENCE. 

THE BOARD'S SUBSIDIARY FINDINGS OF FACT ARE NOT THE SUBJECT OF
SERIOUS CONTROVERSY.  THE RESPONDENT ATTACKS THE ULTIMATE CONCLUSION OF
FACT AS UNJUSTIFIED BY THE SUBSIDIARY FINDINGS AND FURTHER CONTENDS
THAT THE CONCLUSION COULD NOT HAVE BEEN REACHED HAD NOT THE BOARD
IGNORED AND REFUSED TO FIND OTHER RELEVANT FACTS WHICH WERE EITHER
STIPULATED OR PROVED WITHOUT CONTRADICTION. 

THE BOARD'S FINDINGS WERE TO THE FOLLOWING EFFECT:  IN 1927, IN
COOPERATION WITH ITS EMPLOYES, THE RESPONDENT PUT INTO EFFECT A PLAN OF
EMPLOYE REPRESENTATION KNOWN AS "REPRESENTATION OF EMPLOYES."  THE
PREAMBLE OF THE PLAN STATED THAT ITS PURPOSE WAS TO GIVE EMPLOYES A
VOICE IN RESPECT OF THE CONDITIONS OF THEIR LABOR AND TO PROVIDE A
PROCEDURE FOR THE PREVENTION AND ADJUSTMENT OF FUTURE DIFFERENCES. 
UNDER THE PLAN THE EMPLOYES WERE TO ELECT REPRESENTATIVES EACH OF WHOM
WAS PAID $100 PER YEAR FOR SERVICES AS SUCH.  NO ONE HOLDING A
SUPERVISORY POSITION WAS ELIGIBLE TO SERVE AS A REPRESENTATIVE OR TO
VOTE FOR A REPRESENTATIVE.  ADMINISTRATION OF THE PLAN WAS VESTED IN
CERTAIN JOINT COMMITTEES EACH OF WHICH CONSISTED OF FIVE ELECTED
REPRESENTATIVES AND NOT MORE THAN FIVE REPRESENTATIVES CHOSEN FROM
AMONGST THE EMPLOYES BY THE MANAGEMENT.  THERE WAS PROVISION FOR A
MANAGEMENT'S REPRESENTATIVE WHOSE FUNCTION WAS "TO KEEP THE MANAGEMENT
IN TOUCH WITH THE REPRESENTATIVES AND REPRESENT THE MANAGEMENT IN
NEGOTIATIONS WITH THEIR OFFICERS AND COMMITTEES."  A PROVISION CALLING
FOR THE ARBITRATION OF DIFFERENCES WAS TO BECOME OPERATIVE ONLY UPON
CONCURRENCE OF THE RESPONDENT'S PRESIDENT. 

AMENDMENT OF THE PLAN COULD BE MADE ONLY BY THE AFFIRMATIVE VOTE OF
TWO-THIRDS OF THE FULL MEMBERSHIP OF THE JOINT COMMITTEE ON RULES OR OF
A MAJORITY OF ALL THE EMPLOYES' REPRESENTATIVES AND ALL THE
REPRESENTATIVES OF THE MANAGEMENT, AT AN ANNUAL CONFERENCE.  THE PLAN
SET FORTH THAT INDEPENDENCE OF ACTION OF ELECTED REPRESENTATIVES WAS
GUARANTEED BY PERMITTING THEM TO TAKE QUESTIONS OF DISCRIMINATION TO
ANY OF THE SUPERIOR OFFICERS, TO THE JOINT COMMITTEE, AND TO THE
PRESIDENT OF THE COMPANY.  THERE WAS NO PROVISION FOR THE PAYMENT OF
DUES. 

THE ORIGINAL PLAN WAS REVISED IN 1929, 1931, 1934, 1936, AND 1937. 

BY THE 1931 REVISION, WHICH WAS NOT MATERIALLY ALTERED UNTIL 1937, A
GENERAL JOINT COMMITTEE WAS SET UP IN LIEU OF SEVERAL JOINT COMMITTEES
THERETOFORE CONSTITUTED, AND TWO REPRESENTATIVES WERE TO BE ELECTED BY
THE EMPLOYES IN EACH DEPARTMENT WHILE THE RESPONDENT WAS TO APPOINT AN
EQUAL NUMBER OF MANAGEMENT REPRESENTATIVES, A MAJORITY OF EACH CLASS OF
REPRESENTATIVES CONSTITUTING A QUORUM.  THE ANNUAL REMUNERATION TO BE
PAID ELECTED REPRESENTATIVES BY THE COMPANY WAS REDUCED TO $60.00.  THE
SECRETARY OF THE GENERAL JOINT COMMITTEE WAS PAID $5.00 MONTHLY BY THE
COMPANY.  AN EXECUTIVE COMMITTEE WAS ALSO ESTABLISHED CONSTITUTED OF
FIVE ELECTED EMPLOYE REPRESENTATIVES AND FIVE REPRESENTATIVES OF
MANAGEMENT. 

ELECTIONS WERE ARRANGED FOR BY THE MANAGEMENT REPRESENTATIVES BUT, IN
SO FAR AS POSSIBLE, WERE CONDUCTED BY THE EMPLOYES THEMSELVES. 

A PROCEDURE WAS ESTABLISHED FOR THE ADJUSTMENT OF INDIVIDUAL EMPLOYE
GRIEVANCES, WHEREBY, IN EVENT OF FAILURE OF SETTLEMENT, NOTICE WAS TO
BE GIVEN TO THE PRESIDENT OF THE COMPANY.  UNDER THE REVISED PLAN THE
GENERAL JOINT COMMITTEE MET MONTHLY TO TAKE ACTION UPON MATTERS
PRESENTED BY THE MANAGEMENT REPRESENTATIVE OR BY EMPLOYE
REPRESENTATIVES OR SUBCOMMITTEES; BUT FINALITY OF THE ACTION OF THE
GENERAL JOINT COMMITTEE WAS DEPENDENT UPON APPROVAL BY THE RESPONDENT'S
PRESIDENT.  AMENDMENT OF THE PLAN, WHICH COULD BE ACCOMPLISHED BY A
TWOTHIRDS VOTE OF THE ENTIRE GENERAL JOINT COMMITTEE, BECAME EFFECTIVE
WHEN APPROVED BY THE PRESIDENT OF THE COMPANY. 

THE LAST REVISION MADE IN MAY 1937, AFTER THE VALIDITY OF THE
NATIONAL LABOR RELATIONS ACT HAD BEEN SUSTAINED BY THIS COURT,
ORIGINATED IN THE GENERAL JOINT COMMITTEE, ONE-HALF OF WHOSE MEMBERS
REPRESENTED THE INTERESTS OF THE RESPONDENT.  THE AMENDED PLAN WAS
REFERRED TO THE EXECUTIVE COMMITTEE, SIMILARLY CONSTITUTED, AND TO THE
ELECTED EMPLOYE REPRESENTATIVES, RESPECTIVELY.  AFTER ANNOUNCEMENT BY
THE MANAGEMENT REPRESENTATIVE THAT THE REVISION WAS ACCEPTABLE TO THE
RESPONDENT IT WAS ADOPTED BY THE GENERAL JOINT COMMITTEE.  THE
PERSONNEL MANAGER, AND THE GENERAL MANAGER OF THE RESPONDENT, TOOK PART
IN THE REVISION OF THE PLAN.  THE SECRETARY OF THE COMMITTEE TESTIFIED
THAT THIS REVISION WAS UNDERTAKEN IN ORDER TO BRING THE PLAN WITHIN THE
LETTER, AS WELL AS WITHIN THE SPIRIT, OF THE ACT. 

THE TWO PRINCIPAL CHANGES MADE WERE THE ELIMINATION OF PAYMENT OF
COMPENSATION BY THE RESPONDENT TO ELECTED REPRESENTATIVES OF THE
EMPLOYES AND THE SUBSTITUTION OF AN EMPLOYES' REPRESENTATIVE COMMITTEE,
COMPOSED SOLELY OF EMPLOYE REPRESENTATIVES ELECTED BY EMPLOYES, FOR THE
FORMER GENERAL JOINT COMMITTEE AND THE JOINT EXECUTIVE COMMITTEE.  THE
REVISED PLAN PROVIDES THAT ACTION OF THE EMPLOYES' REPRESENTATIVE
COMMITTEE "SHALL BE FINAL AND BECOME EFFECTIVE UPON AGREEMENT BY THE
COMPANY"; AND, FURTHER, THAT ANY ARTICLE OF THE PLAN MAY BE AMENDED BY
A VOTE OF TWO-THIRDS OF THE ENTIRE MEMBERSHIP OF THE COMMITTEE; AND
"AMENDMENTS SHALL BE IN EFFECT AT THE TIME SPECIFIED BY THE EMPLOYES'
REPRESENTATIVE COMMITTEE, UNLESS DISAPPROVED BY THE COMPANY WITHIN
FIFTEEN DAYS AFTER THEIR PASSAGE." 

THE GRIEVANCE PROCEDURE PERMITS THE PRESENTATION OF A GRIEVANCE TO
THE RESPONDENT'S PERSONNEL MANAGER, OR ITS GENERAL MANAGER, IN THE
EVENT NO SETTLEMENT HAS THERETOFORE BEEN EFFECTED. 

UPON THE BASIS OF THESE FINDINGS THE BOARD CONCLUDED THAT, FROM THE
INCEPTION OF THE PLAN IN 1927 UNTIL ITS FINAL REVISION IN 1937, THE
RESPONDENT DOMINATED, ASSISTED, AND INTERFERED WITH THE ADMINISTRATION
OF THE LABOR ORGANIZATION; AND THAT THE METHOD FOLLOWED FOR AMENDMENT
OF THE PLAN IN 1937, AND THE PROVISIONS OF THE FINAL REVISION, LEFT THE
COMPANY STILL IN THE POSITION OF DOMINATING AND INTERFERING IN THE
FORMULATION AND ADMINISTRATION OF THE PLAN, CONTRARY TO THE PROVISIONS
OF SEC. 7 OF THE ACT.  THE BOARD HELD THAT THE COMMITTEE IS, IN THE
CIRCUMSTANCES, INCAPABLE OF SERVING THE EMPLOYES AS THEIR GENUINE
REPRESENTATIVE FOR THE PURPOSE OF COLLECTIVE BARGAINING. 

THE RESPONDENT CRITICISES SEVERAL OF THE FINDINGS AS WITHOUT SUPPORT
OR CONTRARY TO UNCONTRADICTED EVIDENCE.  WE DO NOT STOP TO CONSIDER
THESE CONTENTIONS, SINCE, WITHOUT SUCH FINDINGS, THERE WOULD STILL BE A
BASIS IN THE RECORD FOR THE BOARD'S CONCLUSIONS. 

THE PRINCIPAL CONTENTION OF THE RESPONDENT IS THAT THE BOARD IGNORED
UNCONTRADICTED FACTS AND REFUSED TO MAKE FINDINGS RESPECTING THEM.  THE
BOARD REPLIES THAT IT DID NOT IGNORE THESE FACTS, BUT OMITTED TO FIND
THEM BECAUSE THEY WERE IMMATERIAL TO THE PIVOTAL ISSUES IN THE CASE. 
IT IS UNCONTRADICTED THAT LABOR DISPUTES HAVE REPEATEDLY BEEN SETTLED
UNDER THE PLAN; THAT SINCE 1927 NO LABOR DISPUTE HAS CAUSED CESSATION
OF ACTIVITIES AT THE RESPONDENT'S PLANT; THAT OVERWHELMING MAJORITIES
OF THE EMPLOYES HAVE PARTICIPATED IN THE ELECTION OF REPRESENTATIVES;
THAT THE COMPANY HAS NEVER OBJECTED TO ITS EMPLOYES JOINING LABOR
UNIONS; THAT NO DISCRIMINATION HAS BEEN PRACTICED AGAINST THEM BECAUSE
OF THEIR MEMBERSHIP IN OUTSIDE UNIONS; AND THAT NEITHER OFFICIALS NOR
SUPERIOR EMPLOYES NOT ELIGIBLE TO VOTE IN THE ELECTION OF EMPLOYES'
REPRESENTATIVES, HAVE INTERFERED, OR ATTEMPTED TO INTERFERE, OR USE ANY
INFLUENCE, IN CONNECTION WITH THE ELECTION OF REPRESENTATIVES. 

BEFORE THE BOARD'S DECISION AND ORDER HAD BEEN PROMULGATED A
REFERENDUM WAS HELD AT WHICH A SWEEPING MAJORITY OF THE COMPANY'S
EMPLOYES SIGNIFIED, BY SECRET BALLOT, THEIR SATISFACTION WITH THE PLAN
AS REVISED IN 1937 AND THEIR DESIRE FOR ITS CONTINUANCE.  COUNSEL FOR
THE COMMITTEE REQUESTED THE BOARD TO CERTIFY THESE FACTS TO THE CIRCUIT
COURT OF APPEALS AS PART OF THE RECORD BEFORE THE COURT.  THE BOARD,
THOUGH NOT BOUND SO TO DO, EMBODIED THESE FACTS IN A SUPPLEMENTARY
CERTIFICATE.  IT NOW TAKES THE POSITION THAT THE ONLY PROPER WAY TO
BRING THESE ADDITIONAL FACTS TO THE ATTENTION OF THE REVIEWING COURT
WOULD HAVE BEEN BY APPLICATION TO THE COURT TO REMAND THE CAUSE FOR
FURTHER FINDINGS, AND AS THIS WAS NOT DONE, THE CERTIFICATE WAS
IRREGULAR AND SHOULD NOT HAVE BEEN CONSIDERED.  WE ARE UNABLE TO AGREE
WITH THIS CONTENTION.  WE THINK THE CIRCUIT COURT OF APPEALS CANNOT BE
CONVICTED OF ERROR IN ACCEPTING THE BOARD'S SUPPLEMENTAL CERTIFICATE. 

THE BOARD URGES THAT, NOTWITHSTANDING THE FACTS ON WHICH THE
RESPONDENT RELIES, THE STRUCTURE OF THE COMMITTEE, UNDER THE 1937 PLAN,
RENDERS THE ORGANIZATION INCOMPETENT TO MEET THE REQUIREMENTS OF THE
NATIONAL LABOR RELATIONS ACT; AND FURTHER THAT, IF ITS FUNDAMENTAL LAW
WERE FREE FROM DEFECT, THE HISTORY OF ITS ORGANIZATION AND
ADMINISTRATION WOULD REQUIRE THAT IT BE DISESTABLISHED AS THE
BARGAINING AGENCY OF THE EMPLOYES. 

PRIOR TO THE ADOPTION OF THE WAGNER ACT THE PLAN DID NOT RUN COUNTER
TO ANY FEDERAL LAW, EITHER IN CONCEPTION OR ADMINISTRATION.  THE
RESPONDENT, HOWEVER, CONCEDES THAT SUNDRY FEATURES OF THE PLAN, AS THEN
FORMULATED, CONFLICT WITH THE PROVISIONS OF THE STATUTE.  BOTH EMPLOYER
AND EMPLOYES SO RECOGNIZED WHEN THEY UNDERTOOK THE REVISION OF 1937 FOR
THE PURPOSE OF BRINGING THE PLAN WITHIN THE SPIRIT AND THE LETTER OF
THE ACT. 

THE BOARD HAS CONCLUDED THAT THE PROVISIONS EMBODIED IN THE FINAL
REVISION, WHEREBY ACTION OF THE COMMITTEE REQUIRES, FOR ITS
EFFECTIVENESS, THE AGREEMENT OF THE COMPANY, AND WHEREBY AMENDMENT OF
THE PLAN CAN BECOME EFFECTIVE ONLY IF THE COMPANY FAILS TO SIGNIFY ITS
DISAPPROVAL WITHIN FIFTEEN DAYS OF ADOPTION, STILL GIVE THE RESPONDENT
SUCH POWER OF CONTROL THAT THE PLAN IS IN THE TEETH OF THE EXPRESSED
POLICY AND THE SPECIFIC PROHIBITIONS OF THE ACT.  THE RESPONDENT ARGUES
THAT THESE PROVISIONS AFFECT ONLY THE COMPANY AND NOT THE EMPLOYES;
THAT, IN COLLECTIVE BARGAINING, THERE IS ALWAYS RESERVED TO THE
EMPLOYER THE RIGHT TO QUALIFY OR TO REJECT THE PROPOSITIONS ADVANCED BY
THE EMPLOYES.  WHATEVER MAY BE SAID OF THE FIRST MENTIONED PROVISION,
THIS EXPLANATION WILL NOT HOLD FOR THE SECOND.  THE PLAN MAY NOT BE
AMENDED IF THE COMPANY DISAPPROVES THE AMENDMENT.  SUCH CONTROL OF THE
FORM AND STRUCTURE OF AN EMPLOYE ORGANIZATION DEPRIVES THE EMPLOYES OF
THE COMPLETE FREEDOM OF ACTION GUARANTEED TO THEM BY THE ACT, AND
JUSTIFIES AN ORDER SUCH AS WAS HERE ENTERED.  THE COURT BELOW, IN ITS
OPINION, STATES IT WAS ADVISED IN A BRIEF AFTER THE HEARING IN THAT
COURT, THAT THE PLAN HAD BEEN AMENDED BY STRIKING OUT THE PROVISIONS IN
QUESTION.  IT CONCLUDES, THEREFORE, THAT THEIR PREVIOUS EXISTENCE IS
IMMATERIAL.  THE STATUTE EXPRESSLY DEPRIVES THE REVIEWING COURT OF
POWER TO CONSIDER FACTS THUS BROUGHT TO ITS ATTENTION.  THE CASE MUST
BE HEARD ON THE RECORD AS CERTIFIED BY THE BOARD.  THE APPROPRIATE
PROCEDURE TO ADD FACTS TO THE RECORD AS CERTIFIED IS PRESCRIBED IN SEC.
10(E) OF THE ACT. 

BUT WE THINK THAT IF THE RECORD DISCLOSED SUCH AN ALTERATION OF THE
PLAN, THE ORDER OF THE BOARD COULD NOT BE HELD ERRONEOUS.  THE BOARD
HELD THAT, WHERE AN ORGANIZATION HAS EXISTED FOR TEN YEARS AND HAS
FUNCTIONED IN THE WAY THAT THE COMMITTEE HAS FUNCTIONED, WITH A JOINT
CONTROL VESTED IN MANAGEMENT AND MEN, THE EFFECTS OF THE LONG PRACTICE
CANNOT BE ELIMINATED AND THE EMPLOYES RENDERED ENTIRELY FREE TO ACT
UPON THEIR OWN INITIATIVE WITHOUT THE COMPLETE DISESTABLISHMENT OF THE
PLAN.  ON THE RECORD AS MADE WE CANNOT SAY THIS WAS ERROR. 

WHILE THE MEN ARE FREE TO ADOPT ANY FORM OF ORGANIZATION AND
REPRESENTATION WHETHER PURELY LOCAL OR CONNECTED WITH A NATIONAL BODY,
THEIR PURPOSE SO TO DO MAY BE OBSTRUCTED BY THE EXISTENCE AND
RECOGNITION BY THE MANAGEMENT OF AN OLD PLAN OR ORGANIZATION THE
ORIGINAL STRUCTURE OR OPERATION OF WHICH WAS NOT IN ACCORDANCE WITH THE
PROVISIONS OF THE LAW.  SEC. 10(C) WAS NOT INTENDED TO GIVE THE BOARD
POWER OF PUNISHMENT OR RETRIBUTION FOR PAST WRONGS OR ERRORS.  ACTION
UNDER THAT SECTION MUST BE LIMITED TO THE EFFECTUATION OF THE POLICIES
OF THE ACT.  ONE OF THESE IS THAT THE EMPLOYES SHALL BE FREE TO CHOOSE
SUCH FORM OF ORGANIZATION AS THEY WISH. 

AS POINTED OUT IN NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA
GREYHOUND LINES, 303 U.S. 261, DISESTABLISHMENT OF A BARGAINING UNIT
PREVIOUSLY DOMINATED BY THE EMPLOYER MAY BE THE ONLY EFFECTIVE WAY OF
WIPING THE SLATE CLEAN AND AFFORDING THE EMPLOYES AN OPPORTUNITY TO
START AFRESH IN ORGANIZING FOR THE ADJUSTMENT OF THEIR RELATIONS WITH
THE EMPLOYER.  COMPARE NATIONAL LABOR RELATIONS BOARD V. FANSTEEL
METALLURGICAL CORP., 306 U.S. 240, 262. 

THE COURT BELOW AGREED WITH THE RESPONDENT THAT, AS THE COMMITTEE HAD
OPERATED TO THE APPARENT SATISFACTION OF THE EMPLOYES; AS SERIOUS LABOR
DISPUTES HAD NOT OCCURRED DURING ITS EXISTENCE; AND AS THE MEN AT AN
ELECTION HELD UNDER THE AUSPICES OF THE COMMITTEE HAD SIGNIFIED THEIR
DESIRE FOR ITS CONTINUANCE, IT WOULD BE A PROPER MEDIUM AND ONE WHICH
THE EMPLOYER MIGHT CONTINUE TO RECOGNIZE FOR THE ADJUSTMENT OF LABOR
DISPUTES.  THE DIFFICULTY WITH THE POSITION IS THAT THE PROVISIONS OF
THE STATUTE PRECLUDE SUCH A DISPOSITION OF THE CASE.  THE LAW PROVIDES
THAT AN EMPLOYE ORGANIZATION SHALL BE FREE FROM INTERFERENCE OR
DOMINANCE BY THE EMPLOYER.  WE CANNOT SAY THAT, UPON THE UNCONTRADICTED
FACTS, THE BOARD ERRED IN ITS CONCLUSION THAT THE PURPOSE OF THE LAW
COULD NOT BE ATTAINED WITHOUT COMPLETE DISESTABLISHMENT OF THE EXISTING
ORGANIZATION WHICH HAD BEEN DOMINATED AND CONTROLLED TO A GREATER OR
LESS EXTENT BY THE RESPONDENT.  IN APPLYING THE STATUTORY TEST OF
INDEPENDENCE IT IS IMMATERIAL THAT THE PLAN HAD IN FACT NOT ENGENDERED,
OR INDEED HAD OBVIATED, SERIOUS LABOR DISPUTES IN THE PAST, OR THAT ANY
COMPANY INTERFERENCE IN THE ADMINISTRATION OF THE PLAN HAD BEEN
INCIDENTAL RATHER THAN FUNDAMENTAL AND WITH GOOD MOTIVES.  IT WAS FOR
CONGRESS TO DETERMINE WHETHER, AS A MATTER OF POLICY, SUCH A PLAN
SHOULD BE PERMITTED TO CONTINUE IN FORCE.  WE THINK THE STATUTE PLAINLY
EVINCES A CONTRARY PURPOSE, AND THAT THE BOARD'S CONCLUSIONS ARE IN
ACCORD WITH THAT PURPOSE. 

THE DECREE MUST BE REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY TO THIS OPINION.  REVERSED. 

FN1  8 N.L.R.B. 866. 

FN2  49 STAT. 449, 454; 29 U.S.C. SUPP. IV, SEC. 160(C). 

FN3  THE COMMITTEE WAS GRANTED LEAVE TO INTERVENE, PRODUCED EVIDENCE,
AND PARTICIPATED IN THE ARGUMENT BEFORE THE BOARD, AND WAS HEARD IN THE
COURT BELOW AND IN THIS COURT. 

FN4  49 STAT. 449, 452; 29 U.S.C. SUPP. IV, SEC. 157. 

FN5  49 STAT. 449, 452; 29 U.S.C. SUPP. IV, SEC. 158. 

FN6  THE COMPLAINT ALSO CHARGED THAT THE RESPONDENT HAD DISCHARGED
CERTAIN EMPLOYES FOR UNION ACTIVITY AND HAD THUS VIOLATED SEC. 8(3) OF
THE ACT BUT THE BOARD DISMISSED THIS CHARGE. 

FN7  NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES,
303 U.S. 261; NATIONAL LABOR RELATIONS BOARD V. FANSTEEL METALLURGICAL
CORP., 306 U.S. 240. 
..END :





HELVERING V. LAZARUS & CO., 308 U.S. 252 


NO. 56.  ARGUED NOVEMBER 14, 1939.  - DECIDED DECEMBER 4, 1939.  - 101
F.2D 728, AFFIRMED. 


1.  IN COMPUTING INCOME TAX UNDER THE REVENUE ACT OF 1928, A TAXPAYER
IS ENTITLED TO THE DEDUCTION FOR DEPRECIATION IN RESPECT OF PROPERTIES
USED IN ITS BUSINESS UNDER LEASES FROM A TRUSTEE TO WHOM THE PROPERTIES
HAD BEEN CONVEYED BY THE TAXPAYER IN A TRANSACTION WHICH IN REALITY WAS
A MORTGAGE.  P. 254. 

2.  A FINDING BY THE BOARD OF TAX APPEALS THAT A TRANSACTION BETWEEN
THE TAXPAYER AND A TRUSTEE BANK - IN WRITTEN FORM A TRANSFER OF
OWNERSHIP WITH A LEASE BACK - WAS IN REALITY A MORTGAGE, IS CONCLUSIVE
ON THE COURTS ALTHOUGH THE EVIDENCE ON THE SUBJECT PERMITS CONFLICTING
INFERENCES.  PP. 254-255. 

3.  PROCEEDINGS BEFORE THE BOARD OF TAX APPEALS ARE EQUITABLE IN
NATURE.  P. 255. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. F. & R. LAZARUS & CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 537, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 32 B.T.A. 633, UPHOLDING A TAXPAYER'S CLAIM
FOR ALLOWANCE OF A DEDUCTION FOR DEPRECIATION IN COMPUTATION OF INCOME
TAX. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN COMPUTING ITS NET TAXABLE INCOME FOR 1930 AND 1931, RESPONDENT
CLAIMED DEPRECIATION ON THREE BUILDINGS OCCUPIED AND USED IN ITS
BUSINESS AS A DEPARTMENT STORE.  DURING THOSE YEARS, THE LEGAL TITLE TO
TWO OF THESE PROPERTIES AND AN ASSIGNMENT OF A NINETY-NINE YEAR LEASE
TO THE THIRD WERE IN A BANK AS TRUSTEE FOR CERTAIN LAND-TRUST
CERTIFICATE HOLDERS.  THESE PROPERTIES HAD BEEN TRANSFERRED TO THE
TRUSTEE BY THE RESPONDENT IN 1928 AND THE TRUSTEE HAD AT THE SAME TIME
LEASED ALL THREE BACK TO RESPONDENT FOR NINETY-NINE YEARS, WITH OPTION
TO RENEW AND PURCHASE.  IN CLAIMING THE DEDUCTION, RESPONDENT INSISTED
THAT THE CAPITAL LOSS FROM WEAR, TEAR, AND EXHAUSTION OF THE BUILDINGS
WAS FALLING UPON IT, THUS ENTITLING IT TO THE STATUTORY ALLOWANCE FOR
DEPRECIATION OF BUILDINGS.  FN1  THE COMMISSIONER DISALLOWED THIS
DEDUCTION ON THE GROUND THAT THE STATUTORY RIGHT TO DEPRECIATION
FOLLOWS LEGAL TITLE.  REVIEWING THE EVIDENCE, THE BOARD OF TAX APPEALS
CONCLUDED THAT THE TRANSACTION BETWEEN RESPONDENT AND THE TRUSTEE BANK
WAS IN REALITY A MORTGAGE LOAN AND ORDERED THE DEDUCTION ALLOWED,  FN2
AND THE CIRCUIT COURT OF APPEALS AFFIRMED.  FN3  UPON FACTS WHICH IT
CONSIDERED "IN ALL ESSENTIAL RESPECTS IDENTICAL," THE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA HELD DEPRECIATION NOT ALLOWABLE.  FN4
BECAUSE OF THE DIFFERENT RESULTS REACHED BY THE COURTS OF APPEAL, WE
GRANTED CERTIORARI.  FN5 

THE FEDERAL INCOME TAX IS AIMED AT NET INCOME DETERMINED FROM GROSS
INCOME LESS ITEMS SUCH AS NECESSARY EXPENSES INCURRED OR CAPITAL
CONSUMED IN EARNING IT.  THUS, THE CONTROLLING STATUTE PERMITS A
TAXPAYER IN COMPUTING NET INCOME TO DEDUCT A "REASONABLE ALLOWANCE FOR
...  EXHAUSTION, WEAR AND TEAR."  WHILE IT MAY MORE OFTEN BE THAT HE
WHO IS BOTH OWNER AND USER BEARS THE BURDEN OF WEAR AND EXHAUSTION OF
BUSINESS PROPERTY IN THE NATURE OF CAPITAL, ONE WHO IS NOT THE OWNER
MAY NEVERTHELESS BEAR THE BURDEN OF EXHAUSTION OF CAPITAL INVESTMENT. 
WHERE IT HAS BEEN SHOWN THAT A LESSEE USING PROPERTY IN A TRADE OR
BUSINESS MUST INCUR THE LOSS RESULTING FROM DEPRECIATION OF CAPITAL HE
HAS INVESTED, THE LESSEE HAS BEEN HELD ENTITLED TO THE STATUTORY
DEDUCTION.  FN6 

HERE, THE TAXPAYER USED BUSINESS PROPERTY IN WHICH IT HAD A
DEPRECIABLE CAPITAL INVESTMENT, PROVIDED IT HAD NOT RECOVERED ITS
INVESTMENT THROUGH A SALE.  THE BOARD IN SUBSTANTIAL EFFECT FOUND THAT
THE INSTRUMENT UNDER WHICH THE TAXPAYER PURPORTED TO CONVEY LEGAL
OWNERSHIP TO THE TRUSTEE BANK WAS IN REALITY GIVEN AND ACCEPTED AS NO
MORE THAN SECURITY FOR A LOAN ON THE PROPERTY; THE "RENT" STIPULATED IN
THE CONCURRENTLY EXECUTED NINETY-NINE YEAR "LEASE" BACK WAS INTENDED AS
A PROMISE TO PAY AN AGREED FIVE PER CENT INTEREST ON THE LOAN; AND THE
"DEPRECIATION FUND" REQUIRED BY THE "LEASE" WAS INTENDED AS AN
AMORTIZATION FUND, DESIGNED TO PAY OFF THE LOAN IN FORTY-EIGHT AND ONE
HALF YEARS.  THESE FINDINGS ARE SUPPORTED BY EVIDENCE WHICH PERMITS, AT
MOST, CONFLICTING INFERENCES AND ARE, THEREFORE, CONCLUSIVE HERE.  AND,
UNLESS THE BOARD COMMITTED ERROR OF LAW WE MUST AFFIRM.  FN7 

WE THINK THE BOARD JUSTIFIABLY CONCLUDED FROM ITS FINDINGS THAT THE
TRANSACTION BETWEEN THE TAXPAYER AND THE TRUSTEE BANK, IN WRITTEN FORM
A TRANSFER OF OWNERSHIP WITH A LEASE BACK, WAS ACTUALLY A LOAN SECURED
BY THE PROPERTY INVOLVED.  GENERAL RECOGNITION HAS BEEN GIVEN THE
"ESTABLISHED DOCTRINE THAT A COURT OF EQUITY WILL TREAT A DEED,
ABSOLUTE IN FORM, AS A MORTGAGE, WHEN IT IS EXECUTED AS SECURITY FOR A
LOAN OF MONEY."  FN8  IN THE FIELD OF TAXATION, ADMINISTRATORS OF THE
LAWS, AND THE COURTS, ARE CONCERNED WITH SUBSTANCE AND REALITIES, AND
FORMAL WRITTEN DOCUMENTS ARE NOT RIGIDLY BINDING.  CONGRESS HAS
SPECIFICALLY EMPHASIZED THE EQUITABLE NATURE OF PROCEEDINGS BEFORE THE
BOARD OF TAX APPEALS BY REQUIRING THE BOARD TO ACT "IN ACCORDANCE WITH
THE RULES OF EVIDENCE APPLICABLE IN COURTS OF EQUITY OF THE DISTRICT OF
COLUMBIA."  26 U.S.C. 611. 

THE GOVERNMENT RELIES IN PART UPON SENIOR V. BRADEN, 295 U.S. 422. 
WHATEVER THE SIGNIFICANCE OF THAT CASE, IT CAN HAVE NO APPLICATION
HERE.  IN THE BRADEN CASE, THE EQUITABLE DOCTRINE - HERE CONTROLLING -
OF LOOKING TO EXTRINSIC EVIDENCE BEHIND A TRANSFER ABSOLUTE ON ITS FACE
TO DETERMINE WHETHER ONLY A SECURITY TRANSACTION WAS CONTEMPLATED BY
THE PARTIES, WAS NEITHER INVOKED NOR PASSED UPON. 

JUDGMENT BELOW IS AFFIRMED. 

FN1  REVENUE ACT OF 1928, C. 852, 45 STAT. 791, 799-800.  IN
COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS:  ... 

DEPRECIATION. - A REASONABLE ALLOWANCE FOR THE EXHAUSTION, WEAR AND
TEAR OF PROPERTY USED IN THE TRADE OR BUSINESS, INCLUDING A REASONABLE
ALLOWANCE FOR OBSOLESCENCE.  IN THE CASE OF PROPERTY HELD BY ONE PERSON
FOR LIFE WITH REMAINDER TO ANOTHER PERSON, THE DEDUCTION SHALL BE
COMPUTED AS IF THE LIFE TENANT WERE THE ABSOLUTE OWNER OF THE PROPERTY
AND SHALL BE ALLOWED TO THE LIFE TENANT.  IN THE CASE OF PROPERTY HELD
IN TRUST THE ALLOWABLE DEDUCTION SHALL BE APPORTIONED BETWEEN THE
INCOME BENEFICIARIES AND THE TRUSTEE IN ACCORDANCE WITH THE PERTINENT
PROVISIONS OF THE INSTRUMENT CREATING THE TRUST, OR, IN THE ABSENCE OF
SUCH PROVISIONS, ON THE BASIS OF THE TRUST INCOME ALLOCABLE TO EACH. 

FN2  32 B.T.A. 633.  THE BOARD FOUND THE DEPRECIABLE LIFE OF THE
PROPERTY TO BE FIFTY YEARS, INSTEAD OF FORTY AS ORIGINALLY CLAIMED BY
RESPONDENT. 

FN3  101 F.2D 728; CF. COMMISSIONER V. H.F. NEIGHBORS REALTY CO., 81
F.2D 173. 

FN4  CITY NATIONAL BANK BUILDING CO. V. HELVERING, 68 APP. D.C. 344;
98 F.2D 216, 217. 

FN5  POST, P. 537. 

FN6  DUFFY V. CENTRAL R. CO., 268 U.S. 55; APPEAL OF GLADDING DRY
GOODS CO., 2 B.T.A. 336, 338; COGAR V. COMMISSIONER, 44 F.2D 554.  SEE,
BOWMAN CO. V. COMMISSIONER, 59 APP. D.C. 13; 32 F.2D 404, 405; NATIONAL
CITY BANK V. UNITED STATES, 64 C. CLS. 236, CERT. DEN.  276 U.S. 620;
COMMISSIONER V. H.F. NEIGHBORS REALTY CO., SUPRA. 

FN7 26 U.S.C. 641(C). 

FN8  PEUGH V. DAVIS, 96 U.S. 332, 336; HUGHES V. EDWARDS, 9 WHEAT. 
489, 495; RUSSELL V. SOUTHARD, 12 HOW.  139; TEAL V. WALKER, 111 U.S.
242.  SEE CASES COLLECTED IN 79 A.L.R. 937. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















U.S. V. SPONENBARGER, 308 U.S. 256 


NO. 72.  ARGUED NOVEMBER 7, 8, 1939.  - DECIDED DECEMBER 4, 1939.  - 101
F.2D 506, REVERSED. 


AN OWNER OF LAND WITHIN THE AREA OF THE BOEUF FLOODWAY, PART OF A
DIVERSION PROJECT EMBRACED IN THE COMPREHENSIVE PLAN OF FLOOD CONTROL
ADOPTED BY THE MISSISSIPPI RIVER FLOOD CONTROL ACT OF 1928, BROUGHT
SUIT AGAINST THE UNITED STATES UNDER THE TUCKER ACT, ALLEGING THAT THE
FLOOD CONTROL ACT AND OPERATIONS CONTEMPLATED BY AND CARRIED ON
PURSUANT TO IT INVOLVED DAMAGE TO THE LAND AND A TAKING OF IT FOR
PUBLIC USE.  A RIGHT TO JUST COMPENSATION UNDER THE FIFTH AMENDMENT AND
A RIGHT OF RECOVERY UNDER THE FLOOD CONTROL ACT ITSELF WERE ASSERTED. 
THE OWNER'S USE AND POSSESSION OF THE LAND HAD NOT BEEN INTERFERED
WITH; THERE HAD BEEN NO FLOODING OF THE LAND SINCE THE PASSAGE OF THE
ACT; AND IT APPEARED THAT THE FLOODWAY PROJECT IN QUESTION HAD BEEN
ABANDONED.  HELD: 

1.  UPON THE FACTS OF THIS CASE, THERE WAS NO "TAKING" OF THE LAND
WITHIN THE MEANING OF THE FIFTH AMENDMENT.  P. 265. 

(A)  A FINDING THAT THE PROGRAM OF IMPROVEMENT UNDER THE 1928 ACT HAD
NOT INCREASED THE FLOOD HAZARD TO WHICH THE OWNER'S LAND THERETOFORE
HAD BEEN SUBJECT, WAS AMPLY SUPPORTED BY THE RECORD.  P. 265. 

(B)  AN UNDERTAKING BY THE GOVERNMENT TO LESSEN THE HAZARD OF DAMAGES
BY FLOODS WHICH WERE INEVITABLE BUT FOR SUCH UNDERTAKING, DOES NOT
CONSTITUTE A TAKING OF THOSE LANDS WHICH ARE NOT AFFORDED AS MUCH
PROTECTION AS OTHERS.  THE FIFTH AMENDMENT DOES NOT REQUIRE PAYMENT OF
COMPENSATION TO A LANDOWNER FOR FLOOD DAMAGE NOT CAUSED IN ANY WISE BY
ACTION OF THE GOVERNMENT.  P. 265. 

(C)  THE FINDING WAS JUSTIFIED THAT THE BENEFITS ACCRUING TO THE
OWNER'S LAND FROM THE PROGRAM OF THE 1928 ACT OUTWEIGHED ANY DAMAGE
OCCASIONED.  P. 267. 

(D)  THE FINDING THAT THE PROPOSED BOEUF FLOODWAY WAS A NATURAL
FLOODWAY WAS SUPPORTED BY THE EVIDENCE.  P. 265. 

(E)  THE CLAIM THAT THERE WAS A TAKING OF THE LAND WHEN THE 1928 ACT
WENT INTO EFFECT AND WORK BEGAN PURSUANT TO IT, BECAUSE THE ACT
INVOLVED AN IMPOSITION OF A SERVITUDE FOR THE PURPOSE OF INTENTIONAL
FUTURE FLOODING OF THE PROPOSED FLOODWAY,  - EXAMINED AND REJECTED.  P.
267. 

(F)  THE UNITED STATES DID NOT, BY THE 1928 ACT, ASSUME COMPLETE
CONTROL OVER ALL LEVEES TO THE EXCLUSION OF THE STATES AND LOCAL
AUTHORITIES.  P. 268. 

(G)  THE OWNER'S "RIGHT OF SELF DEFENSE" AGAINST FLOODS THROUGH
LOCALLY BUILT LEVEES WAS NOT TAKEN AWAY.  NONE OF THE LEVEES ON WHICH
THE OWNER HERE COULD RELY WAS "BUILT BY" OR "ACQUIRED BY" THE UNITED
STATES; AND SEC. 14 OF THE ACT OF MARCH 3, 1899, IS THEREFORE
INAPPLICABLE.  P. 268. 

THIS CONCLUSION IS CONSISTENT WITH THE ADMINISTRATIVE CONSTRUCTION OF
THE ACT. 

2.  THE LANDS OF THE OWNER IN THIS CASE HAVING BEEN NOT DAMAGED BUT
ACTUALLY BENEFITED, THERE WAS NO RIGHT OF RECOVERY UNDER THE 1928 ACT. 
P. 270. 

UNITED STATES V. SPONENBARGER ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 307 U.S. 621, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE GOVERNMENT IN A SUIT UNDER THE TUCKER ACT, BROUGHT BY A LANDOWNER
TO RECOVER COMPENSATION FOR PROPERTY ALLEGED TO HAVE BEEN TAKEN BY THE
GOVERNMENT FOR PUBLIC USE. 

THE LANDS IN THE BOEUF FLOODWAY NOW HAVE MORE FLOOD PROTECTION THAN
EVER BEFORE.  RESPONDENT'S LANDS ARE ALMOST CERTAIN TO BE INUNDATED BY
A VERY SEVERE FLOOD, BUT THIS WAS THE CASE BEFORE.  IT WOULD BE A
TRAVESTY UPON THE PRINCIPLE OF "JUST COMPENSATION" TO HOLD THE
GOVERNMENT LIABLE FOR A TAKING BECAUSE OF CONJECTURED FLOOD WATERS
WHEN, FROM 1912 TO 1927, THE LANDS WERE SIX TIMES FLOODED, WHILE FROM
1928 TO 1939 THEY HAVE NOT ONCE BEEN FLOODED, ALTHOUGH THE LATTER
PERIOD INCLUDES THREE GREAT FLOODS. 

RESPONDENT MUST SHOW NOT ONLY THAT THE PROJECT INVOLVED A TAKING OF
HER FLOWAGE RIGHTS, BUT ALSO THAT THE TAKING HAS ALREADY HAPPENED.  THE
FLOODWAY WAS NEVER COMPLETED AND HAS BEEN ABANDONED UNDER AN ACT OF
CONGRESS.  RESPONDENT'S POSITION, IN ESSENCE, IS THAT BECAUSE THE
GOVERNMENT ONCE INTENDED TO LINK THE VARIOUS PROJECTS WITH THE BOEUF
FLOODWAY THE LAND IN THAT FLOODWAY MUST BE HELD TO HAVE BEEN TAKEN
THOUGH THE PROJECT HAS BEEN ABANDONED.  THIS WOULD IMPOSE AN IMPOSSIBLE
BURDEN UPON FLOOD CONTROL. 

ANY DECREASE IN THE VALUE OF RESPONDENT'S LAND WAS NOT DUE TO ANY ACT
ON THE PART OF THE UNITED STATES BUT LARGELY TO EXTRANEOUS FACTORS,
SUCH AS THE LOW PRICE OF COTTON, BURDENSOME TAXATION, AND THE FLOOD OF
1927. 

THE PASSAGE OF THE 1928 ACT DID NOT EFFECT A TAKING OF PROPERTY. 
WILLINK V. UNITED STATES, 240 U.S. 572.  NOR DID THE PROCLAMATIONS OF
THE PRESIDENT APPROVING THE PROPOSED POLICY AND METHOD OF FLOOD CONTROL
AND AUTHORIZING THE CONSTRUCTION OF GUIDE LEVEES IN THE BOEUF BASIN. 

THE UNITED STATES HAS POWER TO CONTROL THE HEIGHT OF LEVEES IN THE
INTERESTS OF COMMERCE AND NAVIGATION, WITHOUT LIABILITY TO LANDOWNERS
INJURED THEREBY.  JACKSON V. UNITED STATES, 230 U.S. 1. 

THE WORK DONE BY THE UNITED STATES IN THE INSTANT CASE DID NOT EFFECT
A TAKING.  JACKSON V. UNITED STATES, SUPRA; HUGHES V. UNITED STATES,
230 U.S. 24. 

THE WORK DONE ELSEWHERE ALONG THE RIVER DID NOT EFFECT A TAKING.  THE
PROJECTED BOEUF FLOODWAY WAS A SEPARATE PROJECT INCLUDED IN THE ENTIRE
PLAN.  THERE IS NO DETERMINISTIC DOCTRINE THAT A PLAN TO TAKE
CRYSTALLIZES INTO A COMPLETED TAKING AS SOON AS THE FIRST SHOVELFUL OF
EARTH IS TURNED.  THERE MUST BE AT LEAST WORK WHICH CONSTITUTES AN
ACTUAL INTERFERENCE WITH PROPERTY RIGHTS.  A PRESENT APPREHENSION OF A
FUTURE TAKING DOES NOT WARRANT THE RECOVERY OF COMPENSATION.  PEABODY
V. UNITED STATES, 231 U.S. 530; PORTSMOUTH CO. V. UNITED STATES, 260
U.S. 327.  UNDER THE RULE OF THOSE CASES, NO "ABIDING PURPOSE" TO TAKE
RESPONDENT'S PROPERTY COULD BE SHOWN IN THIS CASE. 

STATES IN ANY WAY.  IT DOES NOT AUTHORIZE ANY ACTION AGAINST THE UNITED
STATES BUT IS MERELY A DIRECTION TO FEDERAL OFFICERS THAT FLOWAGE
RIGHTS MUST BE ACQUIRED BEFORE WATER IS ACTUALLY DIVERTED. 

EVEN IF THE SECTION UNDERTOOK TO ESTABLISH A LIABILITY BEYOND THE
CONSTITUTION, IT WOULD BE INAPPLICABLE HERE.  THE LANGUAGE OF THE
STATUTE AND ITS LEGISLATIVE HISTORY UNITE TO SHOW THAT IT RELATES ONLY
TO THE CASE WHERE (1) THERE IS A DELIBERATE DIVERSION, (2) WITH THE
RESULT, OR REASONABLY PREDICTABLE RESULT, (3) THAT ADDITIONAL DAMAGE
WILL RESULT FROM FLOODWATERS WHICH WOULD NOT OTHERWISE HAVE PASSED OVER
THE LAND. 

SUCH HAS BEEN THE ADMINISTRATIVE CONSTRUCTION. 

THE PLAN ENACTED INTO LAW BY THE FLOOD CONTROL ACT OF MAY 15, 1928,
IS A SINGLE, COMPREHENSIVE PROJECT, OF WHICH THE BOEUF FLOODWAY IS AN
ESSENTIAL FEATURE.  WHEN WORK BEGAN ON ANY PART IT AFFECTED PROPERTY IN
THE FLOODWAY.  HURLEY V. KINCAID, 285 U.S. 95; UNITED STATES V. HESS,
70 F.2D 142; 71 ID. 78. 

THE BOEUF FLOODWAY IS IN OPERATIVE CONDITION, CERTAIN TO FUNCTION AS
DESIGNED.  THE PROPOSED GUIDE LEVEES, WHICH HAVE NOT BEEN BUILT, ARE
UNNECESSARY AND IMMATERIAL TO RESPONDENT'S CAUSE OF ACTION. 

THE BOEUF FLOODWAY IS AN ARTIFICIAL DIVERSION FOR WHICH THE UNITED
STATES IS SOLELY RESPONSIBLE.  ABSOLUTE FEDERAL CONTROL OVER THE FUSE
PLUG LEVEE AUTHORIZED BY THE FLOOD CONTROL ACT OF MAY 15, 1928, CREATES
THE BOEUF FLOODWAY. 

THE ESTABLISHED PHYSICAL FACTS PROVE A "TAKING" OF RESPONDENT'S
PRIVATE PROPERTY FOR PUBLIC USE.  ACTUAL PHYSICAL INVASION OF HER LAND
IS IRRELEVANT.  NO CONSEQUENTIAL DAMAGES ARE INVOLVED.  CITING MANY
AUTHORITIES. 

THE BOEUF SPILLWAY HAS NOT BEEN ABANDONED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT SUED THE UNITED STATES UNDER THE TUCKER ACT,  FN1
ALLEGING THAT THE MISSISSIPPI FLOOD CONTROL ACT OF 1928  FN2  AND
CONSTRUCTION CONTEMPLATED BY THAT ACT INVOLVED AN "INTENTIONAL,
ADDITIONAL, OCCASIONAL FLOODING, DAMAGING AND DESTROYING" OF HER LAND
LOCATED IN DESHA COUNTY, ARKANSAS.  SHE MAINTAINED THAT HER PROPERTY
HAD THUS BEEN TAKEN FOR A PUBLIC USE FOR WHICH THE GOVERNMENT IS
REQUIRED TO PAY JUST COMPENSATION BY THE FIFTH AMENDMENT.  FN3  IN
ADDITION, SHE ASSERTED A STATUTORY RIGHT OF RECOVERY UNDER THE ACT
ITSELF.  AFTER FULL HEARING, JUDGMENT FOR THE GOVERNMENT WAS ENTERED IN
THE DISTRICT COURT.  FN4  THE CIRCUIT COURT OF APPEALS REVERSED.  FN5
BECAUSE OF THE IMPORTANCE OF BOTH THE LEGISLATION AND THE PRINCIPLES
INVOLVED, WE GRANTED CERTIORARI.  FN6 

A SUMMARY OF THE HISTORY BEHIND THE MISSISSIPPI FLOOD CONTROL ACT OF
1928 CLARIFIES THE ISSUES HERE.  RESPONDENT'S LAND IS IN THE ALLUVIAL
VALLEY OF THE MISSISSIPPI RIVER.  ALLUVIAL SOIL, RICH IN FERTILITY,
RESULTS FROM DEPOSITS OF MUD AND ACCUMULATIONS PRODUCED BY FLOODS OR
FLOWING WATER.  THUS, FLOODS HAVE GENEROUSLY CONTRIBUTED TO THE
FERTILITY OF THE VALLEY.  HOWEVER, THE FLOODS THAT HAVE GIVEN FERTILITY
HAVE WITH RELENTLESS CERTAINTY UNDERMINED THE SECURITY OF LIFE AND
PROPERTY.  AND OCCUPATION OF THE ALLUVIAL VALLEY OF THE MISSISSIPPI HAS
ALWAYS BEEN SUBJECT TO THIS CONSTANT HAZARD. 

TO ENJOY THE PROMISE OF ITS FERTILE SOIL IN SAFETY HAS, FOR
GENERATIONS, BEEN THE AMBITION OF THE VALLEY'S OCCUPANTS.  AS EARLY AS
1717, SMALL LEVEES WERE ERECTED IN THE VICINITY OF NEW ORLEANS.  UNTIL
1883, PIECEMEAL FLOOD PROTECTION FOR SEPARATE AREAS WAS ATTEMPTED
THROUGH UNCOORDINATED EFFORTS OF INDIVIDUALS, COMMUNITIES, COUNTIES,
DISTRICTS AND STATES.  EXPERIENCE DEMONSTRATED THAT THESE DISCONNECTED
LEVEES WERE UTTERLY INCAPABLE OF SAFEGUARDING AN EVER INCREASING PEOPLE
DRAWN TO THE FERTILE VALLEY.  UNDER WHAT WAS CALLED THE EADS PLAN, THE
UNITED STATES ABOUT 1883 UNDERTOOK TO COOPERATE WITH, AND TO COORDINATE
THE EFFORTS OF THE PEOPLE AND AUTHORITIES OF THE VARIOUS RIVER
LOCALITIES IN ORDER TO EFFECT A CONTINUOUS LINE OF LEVEES ALONG BOTH
BANKS OF THE MISSISSIPPI FOR ROUGHLY NINE HUNDRED AND FIFTY MILES -
FROM CAPE GIRARDEAU, MISSOURI, TO THE GULF OF MEXICO.  FN7  RECURRENT
FLOODS, EVEN AFTER THE EVENTUAL COMPLETION OF THIS TREMENDOUS
UNDERTAKING, LED TO THE CONCLUSION THAT LEVEES ALONE, THOUGH
CONTINUOUS, WOULD NOT PROTECT THE VALLEY FROM FLOODS.  AND IN 1927
THERE OCCURRED THE MOST DISASTROUS OF ALL RECORDED FLOODS.  IN
CONGRESSIONAL DISCUSSION OF THE 1928 ACT, IT WAS SAID - AS THE EVIDENCE
HERE DISCLOSES - THAT "THERE WERE STRETCHES OF COUNTRY (IN ARKANSAS)
MILES IN WIDTH AND MILES IN LENGTH IN WHICH ...  EVERY HOUSE, EVERY
BARN, EVERY OUTBUILDING OF EVERY NATURE, EVEN THE FENCES, WERE SWEPT
AWAY.  IT WAS AS DESOLATE AS THIS EARTH WAS WHEN THE FLOOD SUBSIDED." 
FN8  RESPONDENT'S LAND, UNDER FIFTEEN TO TWENTY FEET OF WATER, WAS LEFT
BARE OF BUILDINGS OF ANY KIND IN THIS 1927 FLOOD. 

THE 1928 ACT HERE INVOLVED ACCEPTED THE CONCEPTION - UNDERLYING THE
PLAN OF GENERAL JADWIN OF THE ARMY ENGINEERS - THAT LEVEES ALONE WOULD
NOT PROTECT THE VALLEY FROM FLOODS.  UPON THE ASSUMPTION THAT THERE
MIGHT BE FLOODS OF SUCH PROPORTIONS AS TO OVERTOP THE RIVER'S BANKS AND
LEVEES DESPITE ALL THE GOVERNMENT COULD DO, THIS PLAN WAS DESIGNED TO
LIMIT TO PREDETERMINED POINTS SUCH ESCAPES OF FLOODWATERS FROM THE MAIN
CHANNEL.  THE HEIGHT OF THE LEVEES AT THESE PREDETERMINED POINTS WAS
NOT TO BE RAISED TO THE GENERAL HEIGHT OF THE LEVEES ALONG THE RIVER. 
THESE LOWER POINTS FOR POSSIBLE FLOOD SPILLWAYS WERE DESIGNATED "FUSE
PLUG LEVEES."  FLOOD WATERS DIVERTED OVER THESE LOWER "FUSE PLUG
LEVEES" WERE INTENDED TO RELIEVE THE MAIN RIVER CHANNEL AND THEREBY
PREVENT GENERAL FLOODING OVER THE HIGHER LEVEES ALONG THE BANKS. 
ADDITIONAL "GUIDE LEVEES" WERE TO BE CONSTRUCTED TO CONFINE THE
DIVERTED FLOOD WATERS WITHIN LIMITED FLOODWAY CHANNELS LEADING FROM THE
FUSE PLUGS.  THE SUGGESTED FUSE PLUG WHICH RESPONDENT CLAIMS WOULD
DAMAGE HER PROPERTY WAS TO BE AT CYPRESS CREEK, WITHIN TWO TO TWO AND
ONE-HALF MILES OF HER LAND, AND HER LAND LIES IN THE PATH OF THE
PROPOSED FLOODWAY TO STEM FROM THIS PARTICULAR FUSE PLUG. 

THE 1928 ACT PROVIDED FOR A COMPREHENSIVE TEN-YEAR PROGRAM FOR THE
ENTIRE VALLEY, EMBODYING A GENERAL BANK PROTECTION SCHEME, CHANNEL
STABILIZATION AND RIVER REGULATION, ALL INVOLVING VAST EXPENDITURES OF
PUBLIC FUNDS.  HOWEVER, BEFORE ANY PART OF THIS PROGRAM WAS ACTUALLY TO
BE CARRIED OUT, THE ACT REQUIRED EXTENSIVE SURVEYS "TO ASCERTAIN  ...
THE BEST METHOD OF SECURING FLOOD RELIEF IN ADDITION TO LEVEES, BEFORE
ANY FLOOD CONTROL WORKS OTHER THAN LEVEES AND REVETMENTS ARE
UNDERTAKEN."  LANDS INTENDED FOR FLOODWAYS WERE, PENDING COMPLETION OF
THE FLOODWAYS, TO ENJOY THE PROTECTION ALREADY AFFORDED BY LEVEES. 

THE DISTRICT COURT FOUND - 

RESPONDENT'S LAND LIES IN THAT PART OF THE BOEUF BASIN WHICH THE PLAN
OF THE 1928 ACT CONTEMPLATED AS A DIVERSION CHANNEL OR FLOODWAY.  THIS
BASIN HAS ALWAYS BEEN A NATURAL FLOODWAY FOR WATERS FROM THE
MISSISSIPPI,  FN9  AND RESPONDENT'S LANDS, AND OTHER LANDS SIMILARLY
SITUATED, HAVE BEEN REPEATEDLY OVERFLOWED BY DEEP WATER DESPITE THE
PRESENCE OF STRONG LEVEES.  FN10  THE UNITED STATES HAS NOT CAUSED ANY
EXCESSIVE FLOOD WATERS TO BE DIVERTED FROM THE MISSISSIPPI THROUGH THE
PROPOSED BOEUF FUSE PLUG (AT CYPRESS CREEK) OR FLOODWAY, AND
RESPONDENT'S PROPERTY HAS NOT BEEN SUBJECTED TO ANY SERVITUDE FROM
EXCESSIVE FLOODWATERS, WHICH DID NOT ALREADY EXIST BEFORE 1928.  SHE
STILL ENJOYS THE SAME BENEFITS FROM THE CYPRESS CREEK DRAINAGE SYSTEM
AS WHEN IT WAS CREATED BEFORE 1928, AND THE GOVERNMENT PROGRAM HAS NOT
"IN ANY WISE, NOR TO ANY EXTENT INCREASED THE FLOOD HAZARD THERETO." 
NO WORK WAS EVER COMMENCED OR DONE WITHIN THE AREA OF THE PROPOSED
BOEUF FLOODWAY, AND THE FUSE PLUG HEADING INTO IT WAS NEVER
ESTABLISHED.  THIS FLOODWAY AS A WHOLE HAS BEEN ABANDONED AND THE
EUDORA FLOODWAY SUBSTITUTED.  HOWEVER, WORK DONE UNDER THE 1928 ACT HAS
SHORTENED THE RIVER BY CUT-OFFS AND DREDGING AND THE RIVER HAS BEEN
LOWERED FIVE OR SIX FEET, WITH THE GREATEST IMPROVEMENT IN THE VICINITY
OF THE PROPOSED FUSE PLUG.  LEVEE PROTECTION TO LANDS SUCH AS
PLAINTIFF'S HAS NOT BEEN REDUCED.  IN FACT, PLAINTIFF'S LAND HAS BEEN
AFFORDED ADDITIONAL PROTECTION BY VIRTUE OF THE FACT THAT THIS
GOVERNMENT IMPROVEMENT PROGRAM HAS MATERIALLY REDUCED THE CREST OF THE
RIVER AT ALL TIMES, INCLUDING FLOOD CRESTS, AND HER LAND HAS ALSO BEEN
PROTECTED BY THE GOVERNMENT'S RECONSTRUCTION OF LEVEES ON THE ARKANSAS
RIVER PURSUANT TO ITS GENERAL PROGRAM.  IN 1935, HER PROPERTY WOULD
HAVE BEEN FLOODED BUT FOR THE WORK DONE BY THE GOVERNMENT WHICH HAS
KEPT HER LAND FREE OF OVERFLOW SINCE 1928.  LANDS, SUCH AS
RESPONDENT'S, LOCATED IMMEDIATELY BEHIND LEVEES ALONG THE MAIN STEM OF
THE MISSISSIPPI, ARE LIABLE TO BE INUNDATED AND DESTROYED BY THE
BREAKING OF RIVER FRONT LEVEES AND FROM NATURAL CREVASSING, REGARDLESS
OF THE HEIGHT AND STRENGTH OF THE LEVEE.  LOSS IN MARKET VALUE OF
RESPONDENT'S PROPERTY, SINCE 1927, HAS NOT BEEN CAUSED BY ANY ACTION OF
THE GOVERNMENT, BUT IS DUE TO THE FLOOD OF 1927, THE DEPRESSION AND
OTHER CAUSES UNCONNECTED WITH THE GOVERNMENTAL PROGRAM UNDER THE 1928
ACT.  THE UNITED STATES HAS IN NO WAY MOLESTED RESPONDENT'S POSSESSION
OR INTERFERED WITH HER RIGHT OF OWNERSHIP.  SHE HAS REMAINED IN
UNINTERRUPTED POSSESSION OF HER PROPERTY OPERATING IT AS A FARM AND
BORROWING MONEY UPON IT AS SECURITY. 

FROM THESE FINDINGS THE DISTRICT COURT CONCLUDED AS A MATTER OF LAW
THAT - 

(1)  RESPONDENT'S PROPERTY HAD NOT BEEN TAKEN WITHIN THE MEANING OF
THE CONSTITUTIONAL PROHIBITION AGAINST TAKING WITHOUT COMPENSATION; 

(2)  UNDER THE FACTS OF THIS CASE, RESPONDENT HAD NO STATUTORY RIGHT
OF RECOVERY UNDER THE 1928 ACT ITSELF. 

IN REVERSING THE DISTRICT COURT'S JUDGMENT, THE CIRCUIT COURT OF
APPEALS DECIDED THAT THE BOEUF FLOODWAY HAD NOT BEEN ABANDONED BY THE
GOVERNMENT, BUT WAS IN OPERATIVE EXISTENCE NOTWITHSTANDING THAT THE
PROPOSED GUIDE LEVEES ALONG THE FLOODWAY HAD NOT BEEN BUILT AND LEVEES
ON THE MISSISSIPPI BOTH IMMEDIATELY ABOVE AND BELOW THE PROPOSED FUSE
PLUG HAD NOT BEEN RAISED ABOVE THE HEIGHT OF WHAT WOULD HAVE BEEN THE
FUSE PLUG LEVEE.  THE CIRCUIT COURT OF APPEALS SAID THAT "BY THE
PROVISIONS OF THIS PLAN OF FLOOD CONTROL  ...  (RESPONDENT'S LAND) IS
SUBJECTED TO A PLANNED AND PRACTICALLY CERTAIN OVERFLOW IN CASE OF THE
MAJOR FLOODS CONTEMPLATED AND DESCRIBED.  NO ONE CAN FORETELL WHEN SUCH
MAY OCCUR, BUT THAT IS THE ONLY REMAINING UNCERTAINTY.  ...  IF, AND
WHEN, SUCH FLOODS DO OCCUR, SERIOUS DESTRUCTION MUST BE CONCEDED." 
UPON THESE CONCLUSIONS, THE CIRCUIT COURT HELD THAT THERE WAS A TAKING
OF RESPONDENT'S PROPERTY.    FIRST.  THIS RECORD AMPLY SUPPORTS THE
DISTRICT COURT'S FINDING THAT THE PROGRAM OF IMPROVEMENT UNDER THE 1928
ACT HAD NOT INCREASED THE IMMEMORIAL DANGER OF UNPREDICTABLE MAJOR
FLOODS TO WHICH RESPONDENT'S LAND HAD ALWAYS BEEN SUBJECT.  THEREFORE,
TO HOLD THE GOVERNMENT RESPONSIBLE FOR SUCH FLOODS WOULD BE TO SAY THAT
THE FIFTH AMENDMENT REQUIRES THE GOVERNMENT TO PAY A LANDOWNER FOR
DAMAGES WHICH MAY RESULT FROM CONJECTURAL MAJOR FLOODS, EVEN THOUGH THE
SAME FLOODS AND THE SAME DAMAGES WOULD OCCUR HAD THE GOVERNMENT
UNDERTAKEN NO WORK OF ANY KIND.  SO TO HOLD WOULD FAR EXCEED EVEN THE
"EXTREMEST"  FN11  CONCEPTION OF A "TAKING" BY FLOODING WITHIN THE
MEANING OF THAT AMENDMENT.  FOR THE GOVERNMENT WOULD THEREBY BE
REQUIRED TO COMPENSATE A PRIVATE PROPERTY OWNER FOR FLOOD DAMAGES WHICH
IT IN NO WAY CAUSED. 

AN UNDERTAKING BY THE GOVERNMENT TO REDUCE THE MENACE FROM FLOOD
DAMAGES WHICH WERE INEVITABLE BUT FOR THE GOVERNMENT'S WORK DOES NOT
CONSTITUTE THE GOVERNMENT A TAKER OF ALL LANDS NOT FULLY AND WHOLLY
PROTECTED.  WHEN UNDERTAKING TO SAFEGUARD A LARGE AREA FROM EXISTING
FLOOD HAZARDS, THE GOVERNMENT DOES NOT OWE COMPENSATION UNDER THE FIFTH
AMENDMENT TO EVERY LANDOWNER WHICH IT FAILS TO OR CANNOT PROTECT.  IN
THE VERY NATURE OF THINGS THE DEGREE OF FLOOD PROTECTION TO BE AFFORDED
MUST VARY.  AND IT IS OBVIOUSLY MORE DIFFICULT TO PROTECT LANDS LOCATED
WHERE NATURAL OVERFLOWS OR SPILLWAYS HAVE PRODUCED NATURAL FLOODWAYS. 

THE EXTENT OF SWAMPS AND OVERFLOWED LANDS IN THE BOEUF FLOODWAY AND
THE HISTORY OF RECURRENT FLOODS THAT HAVE PASSED THROUGH IT, SUPPORT
THE DISTRICT COURT'S FINDING THAT THE PROPOSED BOEUF FLOODWAY IS A
NATURALLY CREATED FLOODWAY.  AND THE GOVERNMENT'S PROBLEM WAS BY
CHANNEL STABILIZATION, DREDGING, CUT-OFFS OR ANY EFFECTIVE MEANS, TO
PREVENT DIVERSIONS FROM THE MISSISSIPPI AT ALL POINTS IF POSSIBLE.  BUT
IF ALL DIVERSIONS COULD NOT BE PREVENTED, THE GOVERNMENT SOUGHT TO
LIMIT THE FLOODING TO THE LEAST POSSIBLE NUMBER OF NATURAL SPILLWAYS
HEADING INTO NATURAL FLOODWAYS.  IF MAJOR FLOODS MAY SOMETIME IN THE
FUTURE OVERRUN THE RIVER'S BANKS DESPITE - NOT BECAUSE OF - THE
GOVERNMENT'S BEST EFFORTS, THE GOVERNMENT HAS NOT TAKEN RESPONDENT'S
PROPERTY.  AND THIS IS TRUE, ALTHOUGH OTHER PROPERTY MAY BE THE
BENEFICIARY OF THE PROJECT.  THE GOVERNMENT HAS NOT SUBJECTED
RESPONDENT'S LAND TO ANY ADDITIONAL FLOODING, ABOVE WHAT WOULD OCCUR IF
THE GOVERNMENT HAD NOT ACTED; AND THE FIFTH AMENDMENT DOES NOT MAKE THE
GOVERNMENT AN INSURER THAT THE EVIL OF FLOODS BE STAMPED OUT
UNIVERSALLY BEFORE THE EVIL CAN BE ATTACKED AT ALL. 

THE FAR REACHING BENEFITS WHICH RESPONDENT'S LAND ENJOYS FROM THE
GOVERNMENT'S ENTIRE PROGRAM PRECLUDES A HOLDING THAT HER PROPERTY HAS
BEEN TAKEN BECAUSE OF THE BARE POSSIBILITY THAT SOME FUTURE MAJOR FLOOD
MIGHT CAUSE MORE WATER TO RUN OVER HER LAND AT A GREATER VELOCITY THAN
THE 1927 FLOOD WHICH SUBMERGED IT TO A DEPTH OF FIFTEEN OR TWENTY FEET
AND SWEPT IT CLEAR OF BUILDINGS.  ENFORCEMENT OF A BROAD FLOOD CONTROL
PROGRAM DOES NOT INVOLVE A TAKING MERELY BECAUSE IT WILL RESULT IN AN
INCREASE IN THE VOLUME OR VELOCITY OF OTHERWISE INEVITABLY DESTRUCTIVE
FLOODS, WHERE THE PROGRAM MEASURED IN ITS ENTIRETY GREATLY REDUCES THE
GENERAL FLOOD HAZARDS, AND ACTUALLY IS HIGHLY BENEFICIAL TO A
PARTICULAR TRACT OF LAND. 

THE CONSTITUTIONAL PROHIBITION AGAINST UNCOMPENSATED TAKING OF
PRIVATE PROPERTY FOR PUBLIC USE IS GROUNDED UPON A CONCEPTION OF THE
INJUSTICE IN FAVORING THE PUBLIC AS AGAINST AN INDIVIDUAL PROPERTY
OWNER.  BUT IF GOVERNMENTAL ACTIVITIES INFLICT SLIGHT DAMAGE UPON LAND
IN ONE RESPECT AND ACTUALLY CONFER GREAT BENEFITS WHEN MEASURED IN THE
WHOLE, TO COMPENSATE THE LANDOWNER FURTHER WOULD BE TO GRANT HIM A
SPECIAL BOUNTY.  SUCH ACTIVITIES IN SUBSTANCE TAKE NOTHING FROM THE
LANDOWNER.  WHILE THIS COURT HAS FOUND A TAKING WHEN THE GOVERNMENT
DIRECTLY SUBJECTED LAND TO PERMANENT INTERMITTENT FLOODS TO AN OWNER'S
DAMAGE,  FN12  IT HAS NEVER HELD THAT THE GOVERNMENT TAKES AN OWNER'S
LAND BY A FLOOD PROGRAM THAT DOES LITTLE INJURY IN COMPARISON WITH FAR
GREATER BENEFITS CONFERRED.  FN13  AND HERE, THE DISTRICT COURT
JUSTIFIABLY FOUND THAT THE PROGRAM OF THE 1928 ACT HAS GREATLY REDUCED
THE FLOOD MENACE TO RESPONDENT'S LAND BY IMPROVING HER PROTECTION FROM
FLOODS.  UNDER THESE CIRCUMSTANCES, RESPONDENT'S LAND HAS NOT BEEN
TAKEN WITHIN THE MEANING OF THE FIFTH AMENDMENT. 

SECOND.  EVEN THOUGH THE GOVERNMENT HAS NOT INTERFERED WITH
RESPONDENT'S POSSESSION AND AS YET HAS CAUSED NO FLOODING OF HER LAND,
FN14  RESPONDENT CLAIMS HER PROPERTY WAS TAKEN WHEN THE 1928 ACT WENT
INTO EFFECT AND WORK BEGAN ON ITS TEN-YEAR PROGRAM BECAUSE THE ACT
ITSELF INVOLVES AN IMPOSITION OF A SERVITUDE FOR THE PURPOSE OF
INTENTIONAL FUTURE FLOODING OF THE PROPOSED BOEUF FLOODWAY.  BUT,
ASSUMING FOR PURPOSES OF ARGUMENT THAT IT MIGHT BE SHOWN THAT SUCH
SUPPOSED FUTURE FLOODING WOULD INFLICT DAMAGES GREATER THAN ALL
BENEFITS RECEIVED BY RESPONDENT, STILL THIS CONTENTION AMOUNTS TO NO
MORE THAN THE CLAIM THAT RESPONDENT'S LAND WAS TAKEN WHEN THE STATUTORY
PLAN GAVE RISE TO AN APPREHENSION OF FUTURE FLOODING.  THIS APPREHENDED
FLOODING MIGHT NEVER OCCUR FOR MANY REASONS - ONE OF WHICH IS THAT THE
BOEUF FLOODWAY MIGHT NEVER BE BEGUN OR COMPLETED.  AS PREVIOUSLY
POINTED OUT, THE ACT DIRECTED COMPREHENSIVE SURVEYS BEFORE UTILIZATION
OF ANY MEANS OF FLOOD CONTROL OTHER THAN LEVEES AND REVETMENTS.  IN
GENERAL LANGUAGE IT ADOPTED A PROGRAM RECOMMENDED BY THE CHIEF OF ARMY
ENGINEERS, BUT CONGRESS DID NOT SWEEP INTO THE STATUTE EVERY SUGGESTION
CONTAINED IN THAT RECOMMENDATION. 

SINCE IT ENVISAGED A VAST PROGRAM, THE ACT NATURALLY LEFT MUCH TO THE
DISCRETION OF ITS ADMINISTRATORS AND FUTURE DECISIONS OF CONGRESS. 
FN15  RECOGNIZING THE VALUE OF EXPERIENCE IN FLOOD CONTROL, CONGRESS
AND THE SPONSORS OF THE ACT DID NOT INTEND IT TO FORECLOSE THE
POSSIBILITY OF CHANGING THE PROGRAM'S DETAILS AS TRIAL AND ERROR MIGHT
DEMAND. 

HERE, IT IS CLEAR THAT THOSE CHARGED WITH EXECUTION OF THE PROGRAM OF
THE 1928 ACT ABANDONED THE PROPOSED BOEUF FLOODWAY AND SUBSTITUTED
ANOTHER.  WHATEVER THE ORIGINAL GENERAL PURPOSE OF CONGRESS AS TO THAT
FLOODWAY AND ITS FUSE PLUG AT CYPRESS CREEK, CONGRESSIONAL HEARINGS,
REPORTS AND LEGISLATION HAVE APPROVED THEIR ABANDONMENT.  THUS,
RESPONDENT'S CONTENTION AT MOST IS THAT THE GOVERNMENT SHOULD PAY FOR
LAND WHICH MIGHT HAVE BEEN IN A FLOODWAY IF THAT FLOODWAY HAD NOT BEEN
ABANDONED.  WE THINK THIS CONTENTION WITHOUT MERIT.  FN16 

THIRD.  RESPONDENT'S "RIGHT OF SELF DEFENSE" AGAINST FLOODS THROUGH
LOCALLY BUILT LEVEES HAS NOT BEEN TAKEN AWAY.  THE 1928 ACT DOES NOT
REPRESENT A SELF-EXECUTING ASSUMPTION OF COMPLETE CONTROL OVER ALL
LEVEES TO THE EXCLUSION OF THE STATES AND LOCAL AUTHORITIES. 
RESPONDENT'S ARGUMENT THAT IT DOES RESTS UPON SEC. 9 OF THE ACT MAKING
SEC. 14 OF THE ACT OF MARCH 3, 1899(33 U.S.C. 408), WHICH FORBIDS
INTERFERENCE WITH LEVEES, "APPLICABLE TO ALL LANDS, WATERS, EASEMENTS
AND OTHER PROPERTY AND RIGHTS ACQUIRED OR CONSTRUCTED UNDER THE
PROVISIONS OF THIS (1928) ACT."  BUT SEC. 14 OF THE 1899 ACT RELATES
ONLY TO LEVEES AND OTHER STRUCTURES "BUILT BY THE UNITED STATES," AND
NO LOCAL LEVEES ON WHICH RESPONDENT COULD RELY HAVE AS YET BEEN "BUILT
BY THE UNITED STATES" OR "ACQUIRED  ...  UNDER THE PROVISIONS OF" THE
1928 ACT.  IN FACT, A PROPOSAL THAT THE GOVERNMENT ASSUME CONTROL OF
LOCAL LEVEES APPEARED IN THE ORIGINAL DRAFT OF THE 1928 ACT BUT WAS
STRICKEN OUT BY AMENDMENT.  FN17  AND THE WAR DEPARTMENT, CHARGED WITH
ITS ADMINISTRATION, HAS TREATED THE ACT AS LEAVING LOCAL INTERESTS FREE
TO RAISE PROPOSED FUSE PLUG LEVEES IF THEY WISH.  FN18 

FOURTH.  IT IS ARGUED THAT THE 1928 ACT ITSELF REQUIRES JUDGMENT FOR
RESPONDENT EVEN THOUGH HER PROPERTY WAS NOT "TAKEN" WITHIN THE FIFTH
AMENDMENT.  THE PERTINENT PROVISIONS ARE - 

"NO LIABILITY OF ANY KIND SHALL ATTACH TO OR REST UPON THE UNITED
STATES FOR ANY DAMAGE FROM OR BY FLOODS OR FLOOD WATERS AT ANY PLACE:
PROVIDED, HOWEVER, THAT IF IN CARRYING OUT THE PURPOSES OF THIS ACT IT
SHALL BE FOUND THAT UPON ANY STRETCH OF THE BANKS OF THE MISSISSIPPI
RIVER IT IS IMPRACTICABLE TO CONSTRUCT LEVEES, EITHER BECAUSE SUCH
CONSTRUCTION IS NOT ECONOMICALLY JUSTIFIED OR BECAUSE SUCH CONSTRUCTION
WOULD UNREASONABLY RESTRICT THE FLOOD CHANNEL, AND LANDS IN SUCH
STRETCH OF THE RIVER ARE SUBJECTED TO OVERFLOW AND DAMAGE WHICH ARE NOT
NOW OVERFLOWED OR DAMAGED BY REASON OF THE CONSTRUCTION OF LEVEES ON
THE OPPOSITE BANKS OF THE RIVER, IT SHALL BE THE DUTY OF THE SECRETARY
OF WAR AND THE CHIEF OF ENGINEERS TO INSTITUTE PROCEEDINGS ON BEHALF OF
THE UNITED STATES GOVERNMENT TO ACQUIRE EITHER THE ABSOLUTE OWNERSHIP
OF THE LANDS SO SUBJECTED TO OVERFLOW AND DAMAGE OR FLOODAGE RIGHTS
OVER SUCH LANDS. 

"  ...  THE UNITED STATES SHALL PROVIDE FLOWAGE RIGHTS FOR ADDITIONAL
DESTRUCTIVE FLOOD WATERS THAT WILL PASS BY REASON OF DIVERSIONS FROM
THE MAIN CHANNEL OF THE MISSISSIPPI RIVER:  ... " 

THIS COURT HAS PREVIOUSLY DECIDED THAT "THE CONSTRUCTION OF LEVEES ON
THE OPPOSITE" BANK OF THE MISSISSIPPI RIVER WHICH RESULTED IN
PERMANENTLY FLOODING PROPERTY ACROSS THE RIVER DID NOT AMOUNT TO A
"TAKING" OF THE FLOODED AREA WITHIN THE FIFTH AMENDMENT.  FN19  WE NEED
NOT HERE DETERMINE WHETHER THE PROVISIONS OF THE 1928 ACT WOULD
THEMSELVES GRANT A STATUTORY RIGHT TO RECOVER IF RESPONDENT'S LAND HAD
BEEN DAMAGED AS A RESULT OF LEVEES CONSTRUCTED ON THE RIVER'S OPPOSITE
BANK.  FOR SEC. 4 OF THE ACT CONTAINS THE FURTHER SPECIFIC RESERVATION
"THAT IN ALL CASES WHERE THE EXECUTION OF THE FLOOD-CONTROL PLAN HEREIN
ADOPTED RESULTS IN BENEFITS TO PROPERTY SUCH BENEFITS SHALL BE TAKEN
INTO CONSIDERATION BY WAY OF REDUCING THE AMOUNT OF COMPENSATION TO BE
PAID."  ON THIS RECORD IT IS CLEAR THAT RESPONDENT'S LANDS WERE NOT
DAMAGED, BUT ACTUALLY BENEFITED. 

WE DO NOT FIND IT NECESSARY TO DISCUSS OTHER QUESTIONS PRESENTED. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  28 U.S.C. 41(20). 

FN2  C. 569, 45 STAT. 534; 33 U.S.C. 702(A). 

FN3  CF. JACOBS V. UNITED STATES, 290 U.S. 13, 16. 

FN4  21 F.SUPP.  28. 

FN5  101 F.2D 506. 

FN6  307 U.S. 621.  RESPONDENT PRIMARILY CLAIMS THAT GOVERNMENTAL
OPERATIONS UNDER THE FLOOD CONTROL ACT HAVE RESULTED IN TAKING FOR
PUBLIC USE HER LANDS LYING IN THE PROPOSED BOEUF FLOODWAY.  THIS
FLOODWAY WAS ORIGINALLY INTENDED TO COVER A VAST AREA ROUGHLY FIFTEEN
MILES WIDE AND ONE HUNDRED AND TWENTY-FIVE MILES LONG. 

FN7  FOR THE BACKGROUND OF THIS LEGISLATION, SEE JACKSON V. UNITED
STATES, 230 U.S. 1. 

FN8  69 CONG. REC., PART 8, P. 8191. 

FN9  THIS BASIN ALSO WAS FOUND TO BE A FLOODWAY FOR WATERS FROM THE
ARKANSAS AND "FLAT" (WHITE) RIVERS. 

FN10  HER LANDS WERE FOUND TO HAVE BEEN FLOODED IN 1912, 1913, 1919,
1921, 1922, 1927. 

FN11  CF. TRANSPORTATION CO. V. CHICAGO, 99 U.S. 635, 642; PUMPELLY
V. GREEN BAY CO., 13 WALL.  166. 

FN12  JACOBS V. UNITED STATES, SUPRA; UNITED STATES V. CRESS, 243
U.S. 316; UNITED STATES V. LYNAH, 188 U.S. 445; PUMPELLY V. GREEN BAY
CO., SUPRA; CF. SANGUINETTI V. UNITED STATES, 264 U.S. 146. 

FN13 CF. BAUMAN V. ROSS, 167 U.S. 548, 574. 

FN14  CF. MARION & R. VALLEY RY. CO. V. UNITED STATES, 270 U.S. 280,
282, 283. 

FN15  CF. SOUTH CAROLINA V. GEORGIA, 93 U.S. 4, 13.  AS TO WHEN
LEGISLATION DOES NOT CONSTITUTE SELF-EXECUTING APPROPRIATION, SEE
BAUMAN V. ROSS, 167 U.S. 548, 596-7; WILLINK V. UNITED STATES, 240 U.S.
572. 

FN16  WHETHER RECOVERY AT LAW COULD BE HAD UPON A SIMILAR CONTENTION
WAS LEFT OPEN BY HURLEY V. KINCAID, 285 U.S. 95.  CF. PEABODY V. UNITED
STATES, 231 U.S. 530, 539, 540. 

FN17  69 CONG. REC., PART 7, PP. 7114, 7115. 

FN18  COM. DOC. NO. 2, HOUSE COMMITTEE ON FLOOD CONTROL, 71ST CONG.,
1ST SESS. 

FN19  JACKSON V. UNITED STATES, SUPRA, 22, 23. 
..END :

















DANFORTH V. UNITED STATES, 308 U.S. 271 


NO. 309.  ARGUED NOVEMBER 8, 1939.  - DECIDED DECEMBER 4, 1939.  - 102
F.2D 5, 105 F.2D 318, MODIFIED. 


1.  UNDER SEC. 4 OF THE FLOOD CONTROL ACT OF MAY 15, 1928, THE
SECRETARY OF WAR MAY AGREE TO PURCHASE EASEMENTS FOR FLOWAGE PURPOSES,
SUBJECT TO THE PERFECTING OF THE TITLE THROUGH CONDEMNATION.  P. 282. 

2.  SUCH AN AGREEMENT FIXES THE VALUE IN CONDEMNATION PROCEEDINGS
BROUGHT LATER BY THE GOVERNMENT AGAINST THE LANDOWNER TO MAKE GOOD
TITLE.  PP. 282-283. 

3.  THE JURISDICTION OF THE COURT IN SUCH CONDEMNATION PROCEEDINGS
DEPENDS UPON SEC. 4 OF THE FLOOD CONTROL ACT AND NOT UPON THE TUCKER
ACT OR THE GENERAL STATUTE OF CONDEMNATION; THE LAND-OWNER MAY PLEAD AN
AGREEMENT BY THE UNITED STATES AS FIXING THE AMOUNT THAT THE GOVERNMENT
MUST BE ADJUDGED TO PAY AS COMPENSATION.  P. 282. 

4.  JUST COMPENSATION UNDER THE FIFTH AMENDMENT FOR PROPERTY TAKEN
FOR PUBLIC USE IS DETERMINED AS OF THE TIME OF THE TAKING.  P. 283. 

5.  UNLESS A TAKING HAS OCCURRED PREVIOUSLY, IN ACTUALITY OR BY A
STATUTORY PROVISION FIXING IT OTHERWISE, THE TIME OF THE TAKING IN
CONDEMNATION UNDER THE FLOOD CONTROL ACT OF MAY 15, 1928, IS THE TIME
OF THE PAYMENT OF THE MONEY AWARD BY THE UNITED STATES, AND NO INTEREST
IS DUE UPON THE AWARD.  P. 284. 

IN THE ABSENCE OF STATUTORY DIRECTION, NO INTEREST ACCRUES BEFORE THE
TAKING. 

6.  FLUCTUATIONS IN THE VALUE OF PROPERTY WHICH OCCUR BY REASON OF
LEGISLATION AUTHORIZING A GOVERNMENTAL PROJECT, OR BY REASON OF THE
BEGINNING OR COMPLETION OF SUCH PROJECT, ARE INCIDENTS OF OWNERSHIP;
AND A REDUCTION IN VALUE SO OCCURRING CAN NOT BE CONSIDERED AS A
"TAKING" IN THE CONSTITUTIONAL SENSE.  P. 285. 

7.  THE MERE ENACTMENT OF LEGISLATION AUTHORIZING CONDEMNATION OF
PROPERTY CAN NOT CONSTITUTE A TAKING; THE LEGISLATION MAY BE REPEALED
OR MODIFIED, OR APPROPRIATIONS MAY FAIL.  P. 286. 

8.  IN THIS CASE, THERE WAS NO TAKING BY THE COMMENCEMENT OR
COMPLETION OF A SET-BACK LEVEE (BETWEEN WHICH LEVEE AND A RIVERSIDE
LEVEE THE OWNER'S LAND LAY); NOR BY THE DYNAMITING OF A LEVEE BY ARMY
OFFICERS DURING A FLOOD EMERGENCY (THE LEVEE LATER HAVING BEEN RESTORED
TO ITS PREVIOUS HEIGHT); NOR BY THE RETENTION OF WATER FROM UNUSUAL
FLOODS FOR A SOMEWHAT LONGER PERIOD OR ITS INCREASE IN DEPTH OR
DESTRUCTIVENESS AS AN INCIDENTAL CONSEQUENCE OF THE SET-BACK LEVEE. 
PP. 286-287. 

DANFORTH V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 538, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE UNITED STATES IN A PROCEEDING IN CONDEMNATION UNDER THE
FLOOD CONTROL ACT OF MAY 15, 1928. 

THERE WAS A TAKING WHEN THE SET-BACK LEVEE WAS STARTED (OR AT ANY
RATE WHEN IT WAS COMPLETED) OR WHEN CONGRESS PASSED THE FLOOD CONTROL
ACT AND ADOPTED A DEFINITE PLAN OF FLOOD CONTROL. 

THE PLAN CONTEMPLATED THE PRACTICAL TAKING OVER OF THE RIVERSIDE
LEVEE BY THE GOVERNMENT; AND THE UNDISPUTED EVIDENCE SHOWS THAT THE
GOVERNMENT ASSERTED COMPLETE DOMINION OVER IT.  THE PROGRAM OF THE
LEVEE DISTRICT FOR RAISING THE LEVEE WAS HALTED.  APPELLANT'S FREE USE
AND ENJOYMENT OF HIS LANDS AND THE PROPERTY HEREIN INVOLVED WERE
MATERIALLY INTERFERED WITH FROM THE TIME THE WORK BEGAN, IF NOT
BEFORE.  IF AT ANY TIME HE WISHED TO SELL OR DISPOSE OF THE LAND, HE
COULD ONLY DO SO SUBJECT TO THE EASEMENT OF THE GOVERNMENT AND AT A
REDUCED PRICE.  THE SECURITY OF HIS LAND WAS MATERIALLY REDUCED AS SOON
AS THE WORK STARTED.  HIS RIGHT TO HAVE THE LEVEE STAND INTACT, OR TO
BE RAISED AND IMPROVED AS A PROTECTION TO HIS LAND, DISAPPEARED. 

WOULD THE GOVERNMENT PERMIT ANY LEVEE DISTRICT OR ANY GROUP OF
INDIVIDUALS OR ANY PERSON TO BUILD THE RIVERSIDE LEVEE UP TO SIXTY-FIVE
FEET, WHICH WOULD BE A COMPLETE PROTECTION OF THE LAND OF THIS
PETITIONER AND OTHERS SITUATED IN THE FLOODWAY AREA?  WOULD NOT THE
GOVERNMENT IMMEDIATELY INVOKE THE APPLICABLE PROVISIONS OF THE RIVERS
AND HARBORS ACT OF 1899? 

THOUGH CONGRESS COULD REPEAL THE FLOOD CONTROL ACT PRIOR TO THE TIME
THAT ANYTHING WAS BEGUN PURSUANT TO IT, YET AS SOON AS WORK STARTED
UNDER THE ACT THERE WAS A TAKING OF THE EASEMENT IN QUESTION AND AN
OBLIGATION ON THE PART OF THE GOVERNMENT TO COMPENSATE THE OWNER. 
COULD THE PETITIONER HAVE SOLD THIS LAND FREE AND CLEAR OF THE
SERVITUDE IMPOSED BY THE ACT AT ANY TIME AFTER THE GOVERNMENT BEGAN
CONSTRUCTION OF THE SET-BACK LEVEE?  IT IS OBVIOUS THAT ANYBODY BUYING
THE LAND WOULD BUY IT SUBJECT TO THAT SERVITUDE.  THEREFORE, THERE MUST
HAVE BEEN A TAKING. 

EVEN IN THE ABSENCE OF AN ANSWER OR COUNTERCLAIM, OR ANY OTHER
PLEADING, THE LANDOWNER WOULD BE ENTITLED TO PROVE HIS DAMAGES AND THE
CONTRACT WOULD HAVE BEEN ADMISSIBLE AND BINDING UPON THE PARTIES. 
CHICAGO V. CHICAGO R., 166 U.S. 226; SPRINGFIELD RY. CO. V. CALKINS, 90
MO. 538; 3 S.W. 82; MISSOURI POWER & LIGHT CO. V. CREED, 32 S.W.2D
783. 

THE OFFER TO PURCHASE CAME VOLUNTARILY FROM THE GOVERNMENT AFTER A
THOROUGH INVESTIGATION, AFTER THREE SEPARATE APPRAISALS. 

WHERE THE GOVERNMENT VOLUNTARILY COMES INTO COURT THERE IS
JURISDICTION TO LITIGATE ALL OF THE RIGHTS OF THE PARTIES GROWING OUT
OF THE TRANSACTION OR SUBJECT MATTER INVOLVED AND TO DO COMPLETE
JUSTICE BETWEEN THE PARTIES IN THE MATTER.  BULL V. UNITED STATES, 295
U.S. 247.  THIS IS NOT A CASE WHERE THE PETITIONER HAD A SEPARATE
TRANSACTION WITH THE GOVERNMENT, THAT IT IS NOW SEEKING TO ENFORCE IN
THIS SUIT.  IT IS A SITUATION WHERE THE PARTIES BY CONTRACT FIXED THE
DAMAGES OR AGREED UPON THE VALUE OF THE FLOWAGE RIGHTS.  THE CASES
WHICH HOLD THAT PARTIES CAN ONLY SUE THE GOVERNMENT UNDER SOME STATUTE
AUTHORIZING IT, ARE WHOLLY WITHOUT APPLICATION. 

THE GOVERNMENT CONTENDS THAT THE RULE OF THE THEKLA CASE, 266 U.S.
328, APPLIES ONLY IN ADMIRALTY CASES, BUT THIS COURT HAS NOT LIMITED
THE RULE TO ADMIRALTY CASES.  SEE THE PAQUETE HABANA, 189 U.S. 453. 

THE DISTRICT COURT DID NOT HAVE JURISDICTION TO ADJUDICATE
PETITIONER'S CONTRACT CLAIM. 

THE UNITED STATES CAN NOT BE SUED WITHOUT ITS CONSENT, EITHER BY
DIRECT SUIT OR BY COUNTERCLAIM AGAINST IT.  NASSAU SMELTING WORKS V.
UNITED STATES, 266 U.S. 101, 106; ILLINOIS CENTRAL R. CO. V. PUBLIC
UTILITIES COMM'N, 245 U.S. 493, 504-505; NORTH DAKOTA-MONTANA W.G.
ASSN. V. UNITED STATES, 66 F.2D 573, 577-578, CERT. DEN.  291 U.S. 672;
OWEN V. UNITED STATES, 8 F.2D 992, 993. 

THE UNITED STATES IS NOT LIABLE FOR INTEREST ON A CONTRACT CLAIM
UNLESS EITHER THE CONTRACT ITSELF OR A STATUTE SHOWS A CONTRARY
INTENTION.  SMYTH V. UNITED STATES, 302 U.S. 329, 353; UNITED STATES EX
REL. ANGARICA V. BAYARD, 127 U.S. 251; UNITED STATES V. NORTH CAROLINA,
136 U.S. 211; UNITED STATES V. NORTH AMERICAN CO., 253 U.S. 330, 336;
SEABOARD AIR LINE RY. V. UNITED STATES, 261 U.S. 299, 304. 

THE UNITED STATES HAS NOT AS YET TAKEN A FLOWAGE EASEMENT OVER
PETITIONER'S PROPERTY.  THERE WAS NO TAKING ON THE DATE WHEN THE WORK
BEGAN.  THE EXISTING RIVERSIDE LEVEE HAD NOT BEEN ALTERED AND THUS IT
AFFORDED TO THE PETITIONER'S LAND THE SAME PROTECTION IT HAD FORMERLY
ENJOYED. 

NOTHING HAD BEEN DONE AT THAT TIME TO INCREASE THE POSSIBILITY OF
OVERFLOW. 

THE PETITIONER HAS NOT BEEN DEPRIVED OF HIS RIGHT TO PROTECT HIS LAND
AGAINST FLOODS. 

THE PROVISIONS OF SEC. 14 OF THE ACT OF MARCH 3, 1899(C. 425, 30
STAT. 1152; 33 U.S.C. SEC. 408), WHICH FORBID INTERFERENCE WITH LEVEES
AND OTHER STRUCTURES AND WHICH ARE MADE APPLICABLE BY SEC. 9 OF THE
1928 ACT, APPLY ONLY TO LEVEES AND OTHER STRUCTURES BUILT BY THE UNITED
STATES, AND CONSEQUENTLY HAVE NO APPLICATION TO THIS LEVEE, WHICH WAS
BUILT BY LOCAL INTERESTS.  THE RESTORATION OF THE PORTIONS OF THE
RIVERSIDE LEVEE UNLAWFULLY DYNAMITED DURING THE 1937 FLOOD OBVIOUSLY
DID NOT TRANSFORM THE ENTIRE LEVEE, AS PETITIONER CONTENDS, OR EVEN THE
DYNAMITED PORTIONS, INTO A LEVEE "BUILT BY THE UNITED STATES" WITHIN
THE MEANING OF THE 1899 ACT. 

FURTHERMORE, EVEN IF IT COULD BE SAID THAT THE GOVERNMENT HAS NOW
DEPRIVED THE PETITIONER OF HIS RIGHT TO IMPROVE AND RAISE THE LEVEE,
THIS WOULD NOT CONSTITUTE A TAKING.  MATTHEWS V. UNITED STATES, 87 CT.
CLS. 662; JACKSON V. UNITED STATES, 230 U.S. 1; HUGHES V. UNITED
STATES, 230 U.S. 24. 

THERE WAS NO TAKING ON THE DATE THE SET-BACK LEVEE WAS VIRTUALLY
COMPLETED.  NOTHING HAD BEEN DONE TO INCREASE THE POSSIBILITY OF THE
OVERFLOW.  THE RIVERSIDE LEVEE HAD NOT BEEN ALTERED, AND THE EXISTENCE
OF THE SET-BACK LEVEE WOULD NOT AFFECT THE FREQUENCY OF FLOODING. 

FURTHERMORE, UNDER SEC. 1 OF THE FLOOD CONTROL ACT, NOTHING COULD BE
DONE WHICH WOULD SUBJECT PETITIONER'S LAND TO MORE FREQUENT OVERFLOW
UNTIL THE FLOODWAY WAS COMPLETED. 

THE FACT THAT THE SET-BACK LEVEE WOULD CONFINE THE FLOODWATERS DID
NOT CAUSE A TAKING.  ONLY WATERS WHICH HAD ALREADY OVERTOPPED THE
UNREDUCED RIVERSIDE LEVEE WOULD BE CONFINED BY THE SET-BACK; AND THAT
WOULD NOT CONSTITUTE A TAKING, BUT MERELY CONSEQUENTIAL DAMAGE.  HUGHES
V. UNITED STATES, 230 U.S. 24; SANGUINETTI V. UNITED STATES, 264 U.S.
146; JACKSON V. UNITED STATES, 230 U.S. 1; BEDFORD V. UNITED STATES,
192 U.S. 217; GIBSON V. UNITED STATES, 166 U.S. 269; CHRISTMAN V.
UNITED STATES, 74 F.2D 112; KIRK V. GOOD, 13 F.SUPP.  1020, APPEAL
DISMISSED UPON STIPULATION, 64 F.2D 1015. 

NO TAKING CAN BE PREDICATED UPON UNAUTHORIZED ACTS OF GOVERNMENT
OFFICERS.  HOOE V. UNITED STATES, 218 U.S. 322; HUGHES V. UNITED
STATES, 230 U.S. 24.  THE LATTER CASE HELD THAT IF THE ACT OF AN
OFFICER OF THE UNITED STATES IN DYNAMITING A LEVEE IN AN EMERGENCY WAS
WRONGFUL, IT WAS NOT THE ACT OF THE UNITED STATES AND DID NOT AMOUNT TO
A TAKING OF THE PROPERTY OVERFLOWED AS A RESULT OF THE DYNAMITING. 

SINCE THE PETITIONER'S LAND WOULD HAVE BEEN OVERFLOWED DURING THE
1937 FLOOD REGARDLESS OF THE PROJECT, CLEARLY NO TAKING OCCURRED AT
THAT TIME. 

THE ENTRY OF JUDGMENT DID NOT CONSTITUTE A TAKING.  BARNIDGE V.
UNITED STATES, 101 F.2D 295, 298; KANAKANUI V. UNITED STATES, 244 F.
923; JOHNSON & WIMSATT V. REICHELDERFER, 66 F.2D 217; MILLER V. UNITED
STATES, 57 F.2D 424; DISTRICT OF COLUMBIA V. HESS, 35 APP. D.C. 38. 
SINCE THE FUSE-PLUG SECTION CAN NOT BE REDUCED UNTIL THE NECESSARY
FLOWAGE EASEMENTS ARE ACQUIRED, NO TAKING WILL OCCUR UNTIL THE JUDGMENT
IS PAID. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

A WRIT OF CERTIORARI WAS GRANTED  FN1  TO REVIEW THE JUDGMENT OF THE
COURT OF APPEALS FOR THE EIGHTH CIRCUIT  FN2  AFFIRMING A JUDGMENT OF
THE DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI WHICH AWARDED
TO A PROPERTY OWNER, AGAINST THE UNITED STATES, COMPENSATION IN
CONDEMNATION LESS IN AMOUNT THAN A SUM FIXED BY AN ARRANGEMENT BETWEEN
THE PARTIES PRIOR TO THE INSTITUTION OF THE CONDEMNATION.  THIS
JUDGMENT PROVIDED FOR PAYMENT OF THE AWARD INTO THE REGISTRY OF THE
COURT AND THAT UPON SUCH PAYMENT THE UNITED STATES SHOULD BE ENTITLED
TO THE RELIEF SOUGHT.  ALTHOUGH THE ISSUE WAS RAISED BY THE LANDOWNER,
NO PROVISION WAS MADE AS TO INTEREST.  THE WRIT WAS GRANTED TO
DETERMINE IMPORTANT QUESTIONS OF FEDERAL LAW AS TO THE EFFECT IN
CONDEMNATION, OF PRIOR AGREEMENTS BY THE UNITED STATES AS TO THE AMOUNT
OF AWARDS AND AS TO THE RUNNING OF INTEREST. 

THIS PROCEEDING AROSE IN THE COURSE OF CARRYING OUT THE PROTECTION
FROM DESTRUCTIVE FLOODS OF THE ALLUVIAL VALLEY OF THE MISSISSIPPI
BETWEEN CAPE GIRARDEAU, MISSOURI, AND HEAD OF PASSES, LOUISIANA.  THIS
WORK OF INTERNAL IMPROVEMENT WAS BEGUN UNDER THE FLOOD CONTROL ACT OF
MAY 15, 1928.  FN3  THE PASSAGE OF THIS ACT FOLLOWED THE DISASTROUS
EXPERIENCE WITH THE FLOOD OF 1927 AND WAS BASED UPON A COMPREHENSIVE
REPORT AND PLAN KNOWN AS THE JADWIN PLAN, MAJOR GENERAL EDGAR JADWIN,
THEN CHIEF OF ENGINEERS OF THE UNITED STATES ARMY, BEING IN CHARGE OF
ITS DEVELOPMENT.  FN4  THE PLAN COVERS THE GREAT ALLUVIAL VALLEY OF THE
MISSISSIPPI THROUGH ITS ENTIRE LENGTH FROM THE OHIO TO THE DELTA.  IN
ESSENCE, THE PLAN IN ITS ENTIRETY IS BASED UPON A LEVEE SYSTEM WHICH
CONSTRICTS THE WATER TO A MODERATE DEGREE AND ALLOWS IN PERIODS OF
EXTREME FLOODS THE ESCAPE FROM SOME LOWER LEVEES, KNOWN AS FUSE-PLUGS,
OF THE WATER FROM THE MAIN CHANNEL TO BACK WATERS AND FLOODWAYS. 

THE PARTICULAR PORTION OF THE PLAN INVOLVED HERE IS KNOWN AS THE
BIRDS POINT-NEW MADRID FLOODWAY.  PRIOR TO THE PASSAGE OF THE FLOOD
CONTROL ACT, THERE WERE LEVEES ALONG THE WEST BANK OF THE MISSISSIPPI
BETWEEN BIRDS POINT, MISSOURI, AND NEW MADRID, MISSOURI, WHICH
SUBSTANTIALLY FOLLOWED THE MEANDERINGS OF THE RIVER.  TO GET A GREATER
AREA FOR THE SPREADING OF FLOOD WATERS, THE PLAN PROVIDED FOR A SECOND
LEVEE TO BE SET BACK ABOUT FIVE MILES FROM THE RIVERBANK LEVEE RUNNING
FROM BIRDS POINT TO ST. JOHNS BAYOU, JUST EAST OF NEW MADRID.  NEAR ITS
UPSTREAM CONNECTION WITH THE SET-BACK LEVEE THE PRESENT RIVERBANK LEVEE
WOULD BE LOWERED SOME FIVE FEET BY WHAT IS CALLED A FUSE-PLUG, SO THAT
AT HIGH FLOOD THE WATER WILL BEGIN TO FLOW INTO THE WIDE FLOODWAY
BELOW.  IT IS EXPECTED THAT THIS ENLARGED CHANNEL WILL KEEP ANTICIPATED
FLOODS FROM RISING ABOVE THE LEVEES PROTECTING CAIRO, ILLINOIS.  THE
SET-BACK LEVEE WILL CONFINE ITS DIVERTED WATER TO THE FLOODWAY AREA
BETWEEN THE SET-BACK LEVEE AND THE RIVERSIDE LEVEE AND WILL RETURN THE
WATER TO THE MISSISSIPPI THROUGH A LOWER FUSE-PLUG SECTION WHERE A GAP
IS LEFT IN THE LEVEE SYSTEM TO PERMIT COMPLETE DRAINAGE.  THE LAND
INVOLVED IN THIS CONDEMNATION IS SITUATED IN THIS FLOODWAY IMMEDIATELY
EAST OF THE SET-BACK LEVEE AND ABOUT MIDWAY BETWEEN BIRDS POINT AND NEW
MADRID. 

THE FLOOD CONTROL ACT STIPULATES THAT THE UNITED STATES "SHALL
PROVIDE FLOWAGE RIGHTS FOR ADDITIONAL DESTRUCTIVE FLOOD WATERS THAT
WILL PASS BY REASON OF DIVERSIONS FROM THE MAIN CHANNEL OF THE
MISSISSIPPI RIVER."  THE SAME SECTION AUTHORIZES THE SECRETARY OF WAR
TO "CAUSE PROCEEDINGS TO BE INSTITUTED FOR THE ACQUIREMENT BY
CONDEMNATION OF ANY LANDS, EASEMENTS, OR RIGHTS OF WAY WHICH  ...  ARE
NEEDED IN CARRYING OUT THIS PROJECT.  ...  "  JURISDICTION OF THE
PROCEEDING IS GIVEN TO THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT IN WHICH THE PROPERTY IS LOCATED.  COMMISSIONERS WERE
AUTHORIZED TO VIEW AND VALUE.  IT WAS FURTHER PROVIDED:  "WHEN THE
OWNER OF ANY LAND, EASEMENT, OR RIGHT OF WAY SHALL FIX A PRICE FOR THE
SAME WHICH, IN THE OPINION OF THE SECRETARY OF WAR IS REASONABLE, HE
MAY PURCHASE THE SAME AT SUCH PRICE; ..."  FN5 

THERE IS THE ADDITIONAL PROVISION IN SEC. 1 OF THIS SAME ACT THAT
"PENDING COMPLETION OF ANY FLOODWAY, SPILLWAY, OR DIVERSION CHANNEL,
THE AREAS WITHIN THE SAME SHALL BE GIVEN THE SAME DEGREE OF PROTECTION
AS IS AFFORDED BY LEVEES ON THE WEST SIDE OF THE RIVER CONTIGUOUS TO
THE LEVEE AT THE HEAD OF SAID FLOODWAY." 

CONSTRUCTION WORK BEGAN ON THE SET-BACK LEVEE ON OCTOBER 21, 1929,
AND WAS SUBSTANTIALLY COMPLETE ON OCTOBER 31, 1932.  THE RIVERSIDE
LEVEE IS MAINTAINED AT ITS ORIGINAL HEIGHT OF ABOUT 58 FEET AND THE
UPPER FUSE-PLUG, WHICH IS DESIGNED TO ADMIT WATER INTO THE FLOODWAY,
HAS NOT YET BEEN CREATED. 

IN JANUARY, 1937, THE MISSISSIPPI RIVER ATTAINED ITS HIGHEST FLOOD
STAGE IN RECORDED HISTORY.  LATE IN THAT MONTH THE UNITED STATES ARMY
OFFICER IN CHARGE OF MEMPHIS ENGINEERS, DISTRICT NO. 1, DIRECTED A
SUBORDINATE TO PROCEED TO THE AREA AND PLACE THE BIRDS POINT-NEW MADRID
FLOODWAY IN OPERATION.  THESE INSTRUCTIONS WERE ISSUED BY THE OFFICER
IN CHARGE OF THE DISTRICT WITHOUT ORDERS FROM ANY SUPERIOR.  THE
DIRECTIONS WERE CARRIED OUT AFTER FLOOD WATERS WERE TRICKLING OVER THE
RIVERSIDE LEVEE INTO THE FLOODWAY AREA THROUGH A NATURAL CREVASSE AND
WHEN PURSUANT TO THESE ORDERS AN ARTIFICIAL CREVASSE WAS CREATED BY
DYNAMITING THE NORTHERN PORTION OF THE UPPER FUSE-PLUG SECTION.  LATER
ANOTHER ARTIFICIAL CREVASSE WAS CREATED AND OTHER NATURAL CREVASSES
DEVELOPED.  THROUGH THESE CREVASSES PETITIONER'S LAND WAS FLOODED.  AS
THE RIVER WOULD HAVE REACHED A STAGE SUFFICIENTLY HIGH TO OVERTOP THE
RIVERSIDE LEVEE, EVEN WITH EXTRAORDINARY HIGH-WATER MAINTENANCE, THE
LAND OF THE PETITIONER WOULD HAVE BEEN FLOODED WITHOUT THE CREVASSING. 
THE SET-BACK LEVEE DID CONFINE THE DIVERTED WATER TO THE FLOODWAY.  IT
INCREASED ITS DEPTH AND DESTRUCTIVENESS ON PETITIONER'S LAND.  AFTER
THE FLOOD SUBSIDED, THE RIVERSIDE LEVEE, INCLUDING THE UPPER FUSE-PLUG
INSTITUTION OF THIS ACTION, ORDERS HAD BEEN ISSUED BY THE SECRETARY OF
WAR, UNDER THE PROVISIONS OF SEC. 4 OF THE FLOOD CONTROL ACT, TO
PURCHASE THIS TRACT OF LAND.  A LETTER CONTAINING THE OFFER FOR THE
FLOWAGE RIGHTS HERE INVOLVED, DATED JANUARY 14, 1932, HAD BEEN RECEIVED
BY THE PETITIONER AND THE OFFER ACCEPTED BY HIM WITHIN AN AGREED
EXTENSION OF THE LIMITED TIME.  THE LETTER, SO FAR AS PERTINENT, READS
AS FOLLOWS: 

"2.  I AM ACCORDINGLY DIRECTED BY THE CHIEF OF ENGINEERS, U.S. ARMY,
TO OFFER YOU THIRTY-ONE THOUSAND SIX HUNDRED EIGHTY-ONE AND 98/100 -
DOLLARS ($31,681.98) FOR A PERPETUAL FLOWAGE EASEMENT AS CONTEMPLATED
BY THE ACT OF MAY 15, 1928, OVER YOUR LAND DESIGNATED AS TRACT NO. 243,
AS INDICATED ON THE INCLOSED PLAT, THIS BEING THE MAXIMUM AMOUNT THAT
CAN BE OFFERED YOU UNDER THE ABOVE AUTHORIZATION. 

"3.  SHOULD THIS OFFER BE ACCEPTED, FRIENDLY CONDEMNATION PROCEEDINGS
WILL BE ENTERED IN COURT, WITH THE REQUEST THAT AN AGREED VERDICT BE
AWARDED IN THE AMOUNT OF THIS OFFER.  PAYMENT CANNOT BE MADE WITHOUT
COURT ACTION AS TITLE CANNOT BE CLEARED.  ACCEPTANCE OF THIS OFFER
SHOULD EXPEDITE FINAL SETTLEMENT AND REDUCE LEGAL EXPENSES." 

AFTER ITS ACCEPTANCE, THERE WAS AN ATTEMPTED WITHDRAWAL OF THIS OFFER
BY A LETTER OF JULY 8, 1932, WHICH ADVISED THE OWNER THAT "AFTER A
CAREFUL REVIEW OF THE QUESTION OF FLOWAGE OVER THESE TRACTS IT WAS
FOUND BY HIGHER AUTHORITY THAT THE PRICES FIRST SUGGESTED COULD NOT BE
PROPERLY RECOMMENDED TO THE COURT." 

AFTER THIS LETTER, A PETITION WAS FILED BY THE UNITED STATES TO
CONDEMN OVER THE LAND HERE IN QUESTION A PERPETUAL RIGHT, POWER
EASEMENT, AND PRIVILEGE TO OVERFLOW, AS CONTEMPLATED BY SAID PROJECT
AND DESCRIBED IN HOUSE DOCUMENT 90.  AFTER THE APPOINTMENT AND REPORT
OF THE COMMISSIONERS FOR THE DETERMINATION OF AN AWARD, PETITIONER
FILED AN ANSWER AND COUNTERCLAIM.  IN THE ANSWER HE SET UP THAT PRIOR
TO THE FILING OF THE SUIT A "WRITTEN OFFER OF SETTLEMENT FOR THE
DAMAGES AND FOR THE PURCHASE OF AN EASEMENT" FOR FLOODWAY PURPOSES WAS
MADE BY THE UNITED STATES AND ACCEPTED BY PETITIONER.  PETITIONER
FURTHER ALLEGED AN OFFER OF TITLE TO THE EASEMENT SOUGHT AND A REQUEST
FOR THE PAYMENT OF THE AGREED SUM.  JUDGMENT AGAINST THE UNITED STATES
WAS ASKED IN THAT AMOUNT, "WITH INTEREST," TO BE PAID INTO COURT FOR
THE BENEFIT OF THE DEFENDANTS, IN ACCORDANCE WITH THEIR RESPECTIVE
RIGHTS AND AGAINST THE DEFENDANTS FOR THE PERPETUAL FLOWAGE EASEMENTS
"UPON PAYMENT INTO COURT" OF THE AGREED SUM.  CHANGING THE DESIGNATION
OF THE PLEADING FROM ANSWER TO COUNTERCLAIM, THESE ALLEGATIONS WERE
REPEATED AS A COUNTERCLAIM.  THE COURT SUSTAINED A MOTION OF THE UNITED
STATES TO STRIKE THIS ANSWER AND COUNTERCLAIM ON THE GROUND THAT THE
PETITIONER HAD WAIVED HIS RIGHTS UNDER THE WRITTEN AGREEMENT BECAUSE OF
HIS FAILURE TO PLEAD THEM PRIOR TO THE ENTRY OF THE INTERLOCUTORY ORDER
ALLOWING THE CONDEMNATION AND APPOINTING COMMISSIONERS.  SUBSEQUENTLY
THE REPORTS OF THE FIRST AND SECOND COMMISSIONS APPOINTED TO VIEW THE
PROPERTY WERE SET ASIDE FOR REASONS WHICH ARE IMMATERIAL HERE.  TO THE
REPORT OF THE THIRD COMMISSION, AWARDING $17,921.70, THE PETITIONER
RENEWED THE OBJECTION THAT THE AGREEMENT BETWEEN THE UNITED STATES AND
HIM WAS DECISIVE IN FIXING THE AWARD AT $31,681.98; ASKED FOR INTEREST
"FROM SUCH TIME AS THE COURT MAY FIND THAT PLAINTIFF (THE UNITED
STATES) APPROPRIATED THE FLOWAGE EASEMENT IN QUESTION" AND SOUGHT NEW
VIEWERS TO DETERMINE THE AWARD AS CLAIMED BY PETITIONERS OR IN THE
ALTERNATIVE THAT THE COURT ENTER JUDGMENT FOR THE SUM CLAIMED WITH
APPROPRIATE TERMS TO CREATE THE FLOWAGE EASEMENT IN THE UNITED STATES. 

UPON THIS EXCEPTION A HEARING WAS HAD AND FINDINGS AND JUDGMENT
ENTERED CONFIRMING THIS REPORT AND ADJUDGING THE CONDEMNOR THE EASEMENT
SOUGHT UPON PAYMENT OF THE AWARD.  NOTHING APPEARED IN THE ORDER AS TO
INTEREST.  BY ASSIGNMENTS OF ERROR ON APPEAL TO THE COURT OF APPEALS
AND IN THE STATEMENT OF QUESTIONS INVOLVED AND REASONS FOR GRANTING THE
WRIT OF CERTIORARI, PETITIONER HAS PRESERVED THE ISSUES OF HIS RIGHT TO
AN AWARD IN THE AGREED AMOUNT AND TO INTEREST FROM THE DATE FOUND TO
MARK THE TAKING FROM HIM OF THE LAND. 

DETERMINATION OF VALUE.  - BY ANSWER AND EXCEPTION TO THE REPORT OF
THE COMMISSIONERS, THE PETITIONER PLEADED THE AGREEMENT ON THE VALUE OF
THE EASEMENT EVIDENCED BY THE LETTER AND ACCEPTANCE REFERRED TO ABOVE. 
THE GOVERNMENT CONTENDS THAT THE "RELEVANCE OF THE CONTRACT  ... AS A
MEASURE OF THE VALUE OF THE EASEMENT IS NOT IN ISSUE; THE PETITIONER
PITCHES HIS CASE SOLELY ON THE PROPOSITION THAT HE CAN ENFORCE THE
CONTRACT."  WITH THIS CONTENTION WE DO NOT AGREE.  IN THE ANSWER, IT IS
TRUE, JUDGMENT IS PRAYED AGAINST THE UNITED STATES FOR THE AGREED
AMOUNT.  BUT A JUDGMENT IS OFFERED TO THE UNITED STATES FOR THE
PERPETUAL FLOWAGE EASEMENT UPON PAYMENT OF THE SUM INTO COURT.  IN THE
OBJECTION TO THE COMMISSIONERS' REPORT THE PRAYER IS FOR ENTRY OF A
JUDGMENT IN THE AGREED SUM "AND UPON PAYMENT OF THE SAME THAT THE COURT
DECREE AN APPROPRIATE JUDGMENT IN FAVOR OF PLAINTIFF FOR THE SAID
EASEMENT."  WE CONSTRUE THE ACCEPTED OFFER AS AN AGREEMENT TO FIX THE
PRICE AT THE NAMED FIGURE FOR THE EASEMENT SOUGHT.  PARAGRAPH 3 OF THE
LETTER SHOWS CONDEMNATION WAS IN MIND. 

THIS ACTION IS BROUGHT UNDER THE PROVISIONS OF SEC. 4 OF THE FLOOD
CONTROL ACT.  THE JURISDICTION OF THE COURT TO CONSIDER THE LANDOWNER'S
CONTENTION DEPENDS UPON THE LANGUAGE OF THAT ACT, NOT UPON THE TUCKER
ACT  FN6  OR THE GENERAL STATUTE ON CONDEMNATION.  FN7  WE HAVE NO
DOUBT THAT THE AUTHORITY TO PURCHASE GIVEN TO THE SECRETARY OF WAR IS
SUFFICIENTLY BROAD TO AUTHORIZE A PURCHASE OF PETITIONER'S INTEREST IN
LAND SUBJECT TO PERFECTING THE TITLE THROUGH CONDEMNATION.  THE EFFECT
OF SUCH AN AGREEMENT IS TO FIX THE VALUE OF THE EASEMENT WHEN THE
AUTHORITY OF THE COURT IS INVOKED AGAINST A PARTY TO THE AGREEMENT TO
ACQUIRE GOOD TITLE.  FN8  IN DEALING WITH A STIPULATION TO WAIVE A
REQUIREMENT OF FILING A CLAIM FOR TAX REFUND WITH THE COMMISSIONER OF
INTERNAL REVENUE, WE HELD SUCH WAIVER ENFORCEABLE IN THE FACE OF A
STATUTORY REQUIREMENT FOR SUCH FILING.  FN9  THE CONVENIENCE OF
PREPARATION FOR TRIAL AND THE INTEREST OF ORDERLY PROCEDURE WAS
DECISIVE THERE.  HERE THE SAME REASONS WITH THE SUPPORTING LANGUAGE AS
TO THE POWER OF PURCHASE LEADS TO THE CONCLUSION THAT THE TRIAL COURT
ERRED IN STRIKING THE ANSWER AND REFUSING THE MOTION TO DETERMINE THE
VALUE AT THE AGREED PRICE.  FN10  WE NEED NOT CONSIDER THE COUNTERCLAIM
AS THE ANSWER COVERS THE ENTIRE SUBJECT OF THE DETERMINATION OF VALUE. 

INTEREST. - PETITIONER SEEKS INTEREST ON THE JUDGMENT FROM THE TIME
OF THE TAKING OR APPROPRIATION OF THE FLOWAGE EASEMENT.  PETITIONER
FIXES THIS APPROPRIATION AT THE TIME OF THE ENACTMENT OF THE FLOOD
CONTROL ACT OF MAY 15, 1928, ON THE THEORY THAT THE PASSAGE OF THAT ACT
DIMINISHED IMMEDIATELY THE VALUE OF THIS PROPERTY BECAUSE THE PLAN
CONTEMPLATED THE ULTIMATE USE OF THE FLOODWAY.  ALTERNATIVELY THE DATE
OF THE TAKING IS FIXED BY PETITIONER AS OF OCTOBER 21, 1929, WHEN WORK
BEGAN ON THE SET-BACK LEVEE OR OCTOBER 31, 1932, WHEN THE SET-BACK
LEVEE WAS COMPLETED. 

THERE IS NO DISAGREEMENT IN PRINCIPLE.  JUST COMPENSATION IS VALUE AT
THE TIME OF THE TAKING.  THE CONGRESS, IN OTHER SITUATIONS, HAS ADOPTED
THE TIME OF TAKING AS THE DATE FOR DETERMINATION OF VALUE.  FN11  FOR
THE REASON THAT COMPENSATION IS DUE AT THE TIME OF TAKING, THE OWNER AT
THAT TIME, NOT THE OWNER AT AN EARLIER OR LATER DATE, RECEIVES THE
PAYMENT.  FN12  UNLESS A TAKING HAS OCCURRED PREVIOUSLY IN ACTUALITY OR
BY A STATUTORY PROVISION, WHICH FIXES THE TIME OF TAKING BY AN EVENT
SUCH AS THE FILING OF AN ACTION,  FN13  WE ARE OF THE VIEW THAT THE
TAKING IN A CONDEMNATION SUIT UNDER THIS STATUTE TAKES PLACE UPON THE
PAYMENT OF THE MONEY AWARD BY THE CONDEMNOR.  NO INTEREST IS DUE UPON
THE AWARD.  UNTIL TAKING, THE CONDEMNOR MAY DISCONTINUE OR ABANDON HIS
EFFORT.  FN14  THE DETERMINATION OF THE AWARD IS AN OFFER SUBJECT TO
ACCEPTANCE BY THE CONDEMNOR AND THUS GIVES TO THE USER OF THE SOVEREIGN
POWER OF EMINENT DOMAIN AN OPPORTUNITY TO DETERMINE WHETHER THE
VALUATIONS LEAVE THE COST OF COMPLETION WITHIN HIS RESOURCES.  FN15
CONDEMNATION IS A MEANS BY WHICH THE SOVEREIGN MAY FIND OUT WHAT ANY
PIECE OF PROPERTY WILL COST.  "THE OWNER IS PROTECTED BY THE RULE THAT
TITLE DOES NOT PASS UNTIL COMPENSATION HAS BEEN ASCERTAINED AND PAID,
..."  FN16  A REDUCTION OR INCREASE IN THE VALUE OF PROPERTY MAY OCCUR
BY REASON OF LEGISLATION FOR OR THE BEGINNING OR COMPLETION OF A
PROJECT.  SUCH CHANGES IN VALUE ARE INCIDENTS OF OWNERSHIP.  THEY
CANNOT BE CONSIDERED AS A "TAKING" IN THE CONSTITUTIONAL SENSE. 

IN BROWN V. UNITED STATES  FN17  THIS COURT HAD OCCASION TO CONSIDER
WHETHER INTEREST SHOULD BE ALLOWED ON THE VALUE OF THE PROPERTY FROM
THE DATE OF SUMMONS, THE DAY FIXED BY THE STATE STATUTE TO DETERMINE
COMPENSATION AND DAMAGES.  IN THAT CASE CONDEMNATION PROCEEDED UNDER
THE FEDERAL CONFORMITY STATUTE WHICH DIRECTS FEDERAL COURTS TO CONFORM
TO STATE PRACTICE AND PROCEDURE, "AS NEAR AS MAY BE."  FN18  INTEREST,
IT WAS THOUGHT, WAS NOT GOVERNED BY THE CONFORMITY ACT,  FN19 BUT
SHOULD BE ALLOWED IN ACCORDANCE WITH THE STATE LAW FROM THE DATE OF
SUMMONS.  THIS CONCLUSION FLOWED FROM THE ACCEPTANCE BY THIS COURT,
WITHOUT QUESTION, OF THE DAY OF SUMMONS AS THE DATE FOR THE
DETERMINATION OF VALUE, THE DAY OF TAKING.  FN20  HERE PROCEEDINGS ARE
UNDER A FLOOD CONTROL ACT PRESCRIBING JURISDICTION AND PROCEDURE. 
WHERE THE CONDEMNATION IS FREE FROM STATUTORY DIRECTION, AS HERE, THERE
WOULD BE NO INTEREST BEFORE THE TAKING.  FN21 

THIS LEAVES FOR CONSIDERATION THE CONTENTION THAT THERE WAS A TAKING
BY THE ENACTMENT OF THE LEGISLATION, WHEN WORK BEGAN ON THE SET-BACK
LEVEE OR WHEN THAT LEVEE WAS COMPLETED.  THE MERE ENACTMENT OF
LEGISLATION WHICH AUTHORIZES CONDEMNATION OF PROPERTY CANNOT BE A
TAKING.  SUCH LEGISLATION MAY BE REPEALED OR MODIFIED, OR
APPROPRIATIONS MAY FAIL.  FN22 

FOR COMPLETION OF THE SET-BACK LEVEE TO AMOUNT TO A TAKING, IT MUST
RESULT IN AN APPROPRIATION OF THE PROPERTY TO THE USES OF THE
GOVERNMENT.  FN23  THIS LEVEE IS SUBSTANTIALLY COMPLETE.  THE
GOVERNMENT HAS CONDEMNED THE LAND UPON WHICH THE SET-BACK IS BUILT. 
THE TRACT NOW IN LITIGATION LIES BETWEEN THE SET-BACK AND RIVERBANK
LEVEES.  THE GOVERNMENT COULD BECOME LIABLE FOR A TAKING, IN WHOLE OR
IN PART, EVEN WITHOUT DIRECT APPROPRIATION, BY SUCH CONSTRUCTION AS
WOULD PUT UPON THIS LAND A BURDEN, ACTUALLY EXPERIENCED, OF CARING FOR
FLOODS GREATER THAN IT BORE PRIOR TO THE CONSTRUCTION.  THE RIVERBANK
LEVEE AT THE FUSE-PLUG HAS NOT BEEN LOWERED FROM ITS PREVIOUS HEIGHT. 
CONSEQUENTLY THE LAND IS AS WELL PROTECTED FROM DESTRUCTIVE FLOODS AS
FORMERLY.  WE CANNOT CONCLUDE THAT THE RETENTION OF WATER FROM UNUSUAL
FLOODS FOR A SOMEWHAT LONGER PERIOD OR ITS INCREASE IN DEPTH OR
DESTRUCTIVENESS BY REASON OF THE SET-BACK LEVEE, HAS THE EFFECT OF
TAKING.  WE AGREE WITH THE COURT OF APPEALS THAT THIS IS "AN INCIDENTAL
CONSEQUENCE" OF THE BUILDING OF THE SETBACK LEVEE.  FN24  NOR CAN WE
CONCLUDE THAT A TAKING OCCURRED THROUGH THE ACT OF THE ARMY OFFICERS IN
DYNAMITING THE LEVEE DURING THE EMERGENCY OF THE 1937 FLOOD.  IT WAS
RESTORED TO ITS PREVIOUS HEIGHT.  UP UNTIL THIS TIME, THE PLAN FOR A
FUSE-PLUG TO PERMIT THE ESCAPE OF DESTRUCTIVE FLOOD WATERS WAS NOT IN
EFFECT.  INDEED, THE PETITIONER DISCLAIMS ANY CONTENTION THAT THE
CREVASSING OF THE LEVEE BY THE GOVERNMENT WAS A TAKING.  THE TAKING, HE
URGES, TOOK PLACE BEFORE AND THIS USE IS ONLY EVIDENCE OF THE CONTROL
OBTAINED BY THE PRIOR TAKING.  REVERSED IN PART AND AFFIRMED IN PART. 

FN1  POST, P. 538. 

FN2  102 F.2D 5, 105 F.2D 318. 

FN3  45 STAT. 534, 33 U.S.C. SEC. 702A-702M. 

FN4  THE PLAN IS FOUND IN "FLOOD CONTROL IN THE MISSISSIPPI VALLEY,"
H.R. DOC. NO. 90, 70TH CONG., 1ST SESS.  REFERENCE IS ALSO MADE IN THE
FLOOD CONTROL ACT TO A PLAN RECOMMENDED BY THE MISSISSIPPI RIVER
COMMISSION AND AUTHORITY IS GRANTED TO ADJUST THE ENGINEERING
DIFFERENCES BETWEEN THE TWO PLANS. 

FN5  45 STAT. 534, C. 569, SEC. 4. 

FN6  JUDICIAL CODE SEC. 24(20), 28 U.S.C. SEC. 41(20). 

FN7  25 STAT. 357. 

FN8  CF. WACHOVIA BANK & TRUST CO. V. UNITED STATES, 98 F.2D
609(C.C.A.4TH). 

FN9  TUCKER V. ALEXANDER, 275 U.S. 228. 

FN10  CF. JUDSON V. UNITED STATES, 120 F. 637(C.C.A.2D)(U.S. DISTRICT
ATTORNEY'S AGREEMENT TO SUBMIT MATTER OF DAMAGES TO ARBITRATION, IN
CONDEMNATION, IN ACCORDANCE WITH THE STATE STATUTE IS BINDING). 

FN11  46 STAT. 1421; 47 STAT. 722, SEC. 305. 

FN12  KINDRED V. UNION PACIFIC R. CO., 225 U.S. 582, 597; IN ROBERTS
V. NORTHERN PACIFIC R. CO., 158 U.S. 1, 10, THE PRECEDENTS ARE
COLLECTED. 

FN13  SEE VARIOUS STATUTORY MEANS OF DETERMINING THE TIME OF TAKING
IN NICHOLS, THE LAW OF EMINENT DOMAIN, 1917, SEC. 436. 

FN14  SEE BAUMAN V. ROSS, 167 U.S. 548, 598, 599, WHERE THERE WAS A
STATUTORY PROVISION RELATING TO CONDEMNATION FOR STREETS IN THE
DISTRICT OF COLUMBIA WHICH MADE THE FAILURE OF THE CONGRESS TO
APPROPRIATE, AFTER SIX MONTHS IN SESSION, FOR THE PAYMENT OF THE AWARD
OF DAMAGES AN EVENT WHICH TERMINATED THE PROCEEDINGS.  "THIS
PROVISION," THIS COURT SAID, "SECURES THE OWNERS FROM BEING COMPELLED
TO PART WITH THEIR LANDS WITHOUT RECEIVING JUST COMPENSATION, AND IS
WITHIN THE CONSTITUTIONAL AUTHORITY OF THE LEGISLATURE."  "THE
CONSTITUTION DOES NOT REQUIRE THE DAMAGES TO BE ACTUALLY PAID AT ANY
EARLIER TIME; NOR IS THE OWNER OF THE LAND ENTITLED TO INTEREST PENDING
THE PROCEEDINGS."    CF. KANAKANUI V. UNITED STATES, 244 F.
923(C.C.A.9TH); JOHNSON & WIMSATT V. REICHELDERFER, 62 APP. D.C. 237;
66 F.2D 217; BARNIDGE V. UNITED STATES, 101 F.2D 295, 298(C.C.A.8TH). 

FN15  SEE LEWIS, LAW OF EMINENT DOMAIN, 3RD ED., SEC. 955. 

FN16  HANSON LUMBER CO. V. UNITED STATES, 261 U.S. 581, 587.    FN17
263 U.S. 78, 84 ET SEQ. 

FN18  25 STAT. 357. 

FN19  263 U.S. AT 87. 

FN20  263 U.S. AT 85-86:  "IN THESE CASES, THE VALUE FOUND WAS AT THE
TIME OF TAKING OR VESTING OF TITLE AND THE PRESUMPTION INDULGED WAS
THAT THE VALUATION INCLUDED THE PRACTICAL DAMAGE ARISING FROM THE
INABILITY TO SELL OR LEASE AFTER THE BLIGHT OF THE SUMMONS TO CONDEMN. 
WHERE THE VALUATION IS AS OF THE DATE OF THE SUMMONS, HOWEVER, NO SUCH
ELEMENTS CAN ENTER INTO IT AND THE ALLOWANCE OF INTEREST FROM THAT TIME
IS PRESUMABLY MADE TO COVER INJURY OF THIS KIND TO THE LAND OWNER
PENDING THE PROCEEDINGS."  AT P. 87:  "BUT THE DISPOSITION OF FEDERAL
COURTS SHOULD BE TO ADOPT THE LOCAL RULE IF IT IS A FAIR ONE, AND, AS
ALREADY INDICATED, WE ARE NOT ABLE TO SAY THAT WITH THE VALUE FIXED AS
OF THE DATE OF SUMMONS, AND THE OPPORTUNITY AFFORDED PROMPTLY
THEREAFTER TO TAKE POSSESSION, INTEREST ALLOWED FROM THE DATE OF THE
SUMMONS IS NOT A PROVISION MAKING FOR JUST COMPENSATION." 

FN21  SHOEMAKER V. UNITED STATES, 147 U.S. 282, 321. 

FN22  WILLINK V. UNITED STATES, 240 U.S. 572; BAUMAN V. ROSS, 167
U.S. 548, 596; UNITED STATES V. SPONENBARGER, ANTE, P. 256. 

FN23  OBVIOUSLY IF THERE WAS NOT A TAKING AT THE COMPLETION OF THE
SETBACK LEVEE, THERE COULD NOT BE A TAKING BY THE BEGINNING OF
CONSTRUCTION. 

FN24  COMPARE BEDFORD V. UNITED STATES, 192 U.S. 217; JACKSON V.
UNITED STATES, 230 U.S. 1; SANGUINETTI V. UNITED STATES, 264 U.S. 146. 

..END :












BRUNO V. UNITED STATES, 308 U.S. 287 


NO. 300.  ARGUED NOVEMBER 6, 1939.  - DECIDED DECEMBER 4, 1939.  - 105
F.2D 921, REVERSED. 


1.  UNDER THE ACT OF MARCH 16, 1878, THE ACCUSED IN A CRIMINAL CASE IN
THE FEDERAL COURT IS ENTITLED, UPON REQUEST, TO HAVE THE JURY
INSTRUCTED, IN SUBSTANCE, THAT HIS FAILURE TO AVAIL HIMSELF OF THE
PRIVILEGE OF TESTIFYING DOES NOT CREATE ANY PRESUMPTION AGAINST HIM AND
MUST NOT BE PERMITTED BY THE JURY TO WEIGH AGAINST HIM.  P. 292. 

2.  REFUSAL TO GRANT SUCH AN INSTRUCTION IS NOT A "TECHNICAL ERROR"
TO BE DISREGARDED UPON REVIEW OR MOTION FOR NEW TRIAL, WITHIN THE
MEANING OF 28 U.S.C. SEC. 391.  P. 293. 

BRUNO V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 536, TO REVIEW ERROR IN THE AFFIRMANCE OF A
CRIMINAL CONVICTION. 

THE REQUESTED CHARGE SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT. 

SUCH A CHARGE IS MANDATORY UNDER THE FIFTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES AND 28 U.S.C. SEC. 632. 

AT COMMON LAW, A DEFENDANT COULD NOT BE COMPELLED TO GIVE EVIDENCE
AGAINST HIMSELF.  THE FIFTH AMENDMENT INCORPORATED THIS RULE INTO THE
CONSTITUTION.  MCKNIGHT V. UNITED STATES, 115 F. 972, 981, 982. 

HAD THE STATUTE NOT SPECIFICALLY PROVIDED THAT NO PRESUMPTION ARISES
FROM NON-EXERCISE OF THE PRIVILEGE TO TESTIFY, THE CONSTITUTIONAL
PROVISION WOULD HAVE IMPLIED AS MUCH, SO THAT SILENT DEFENDANTS MIGHT
BE PROTECTED FROM ANY HOSTILE COMMENT. 

IF EVERYBODY BELIEVES THAT A PERSON FAILING TO TAKE THE STAND IS
ACTUATED BY FEAR, THEN THE PRIVILEGE OF TESTIFYING CREATES A
PRESUMPTION WHICH EXTINGUISHES THE CONSTITUTIONAL PROTECTION OF THE
FIFTH AMENDMENT.  SECTION 632 HAS BEEN IN EXISTENCE SO LONG THAT JURORS
TODAY KNOW THAT A DEFENDANT MAY TESTIFY, BUT DO NOT KNOW OF THE
CONSTITUTIONAL PROTECTION PROVIDED BY THE RULE AGAINST SELF
INCRIMINATION.  OBVIOUSLY, THE ONLY WAY TO MAKE THE DEFENDANT'S RIGHTS
KNOWN TO THE JURY IS BY A CLEAR, CORRECT STATEMENT OF THE APPLICABLE
LAW.  IF THE EYES OF THE JURY SEE THE TAINT OF GUILT ON EVERY DEFENDANT
WHO REMAINS SILENT, THEN THE NECESSITY OF A CHARGE SUCH AS THAT
REQUESTED, IS CONCLUSIVELY ESTABLISHED.  SEE, 4 WIGMORE ON EVIDENCE,
PP. 811, 814, 815; STOUT V. UNITED STATES, 227 F. 799; MICHAEL V.
UNITED STATES, 7 F.2D 865; HERSH V. UNITED STATES, 68 F.2D 799; SWENZEL
V. UNITED STATES, 22 F.2D 280. 

THE REQUESTED INSTRUCTION WAS PROPERLY REFUSED.  WILSON V. UNITED
STATES, 149 U.S. 60; REAGAN V. UNITED STATES, 157 U.S. 301, 304-305;
MCKNIGHT V. UNITED STATES, 115 F. 972, 981-983; SWENZEL V. UNITED
STATES, 22 F.2D 280; STOUT V. UNITED STATES, 227 F. 799, 803; MICHAEL
V. UNITED STATES, 7 F.2D 865. 

IN SEVERAL STATES THE STATUTES HAVE BEEN CONSTRUED AS FORBIDDING ALL
REFERENCE BY THE TRIAL JUDGE IN HIS CHARGE TO THE SILENCE OF THE
ACCUSED.  TIMES V. COMMONWEALTH, 25 KY. LAW REP. 1233; HANKS V.
COMMONWEALTH, 248 KY. 203; STATE V. PEARCE, 56 MINN. 226; STATE V.
LONG, 324 MO. 205; MASON V. STATE, 53 OKLA. CR. R. 76; THOMPSON V.
STATE, 88 TEX. CR. 29; KINNEY V. STATE, 36 WYO. 466; CF., STATE V.
FORD, 109 CONN. 490; TUCKER V. STATE, 29 GA. APP. 221. 

IN APPROXIMATELY 42 STATES THERE EXIST STATUTES PROHIBITING ANY
INFERENCE TO BE DRAWN FROM AN ACCUSED'S FAILURE TO TESTIFY.  SEE,
WIGMORE ON EVIDENCE, 2D ED., SEC. 488, NOTE 2.  THESE STATUTES PROVIDE
EITHER (1) THAT THE FAILURE OF THE DEFENDANT TO TESTIFY SHALL NOT
CREATE ANY PRESUMPTION AGAINST HIM, (2) THAT SUCH FAILURE SHALL NOT BE
THE SUBJECT OF COMMENT BY COUNSEL OR BY EITHER COURT OR COUNSEL, OR (3)
CONTAIN BOTH SUCH PROVISIONS.  SEE, 31 MICH. L. REV. 40-43; WIGMORE ON
EVIDENCE, 1934 SUPP. SEC. 2272, NOTE 2.  IN INDIANA (BURNS ANN. STAT.
1926, SEC. 2267), NEVADA (REV. LAWS 1912, SEC. 7161), AND WASHINGTON
(COMP. ST. 1922, SEC. 2148), THE STATUTES SPECIFICALLY REQUIRE THE
TRIAL JUDGE, UPON REQUEST, TO INSTRUCT THE JURY IN ACCORDANCE WITH THE
STATUTE. 

IN ENGLAND, THE CRIMINAL EVIDENCE ACT OF 1898, SEC. 1(ST. 61 & 62,
VICT.  C. 36), PROVIDES THAT THE ACCUSED'S FAILURE TO GIVE EVIDENCE
"SHALL NOT BE MADE THE SUBJECT OF ANY COMMENT BY THE PROSECUTION."  BUT
THE JUDGE IS NOT PREVENTED FROM COMMENTING THEREON.  R. V. RHODES, 1
Q.B. 77, 83(1899); CF., THE KING V. PARKER, 1 K.B. 850(1933). 

SEVERAL STATE COURTS, CONSTRUING THEIR STATUTES, HAVE HELD THAT, UPON
REQUEST, IT IS PROPER FOR THE COURT TO INSTRUCT THE JURY AS TO THE
DEFENDANT'S SILENCE, AND THAT THE REFUSAL TO DO SO IS ERROR, COX V.
STATE, 173 ARK. 1115; PEOPLE V. GREBEN, 352 ILL. 582; STATE V. LANDRY,
85 ME. 95; PEOPLE V. PROVOST, 144 MICH. 17; FUNCHES V. STATE, 125
MISS.  140; STATE V. WALKER, 94 W. VA. 691.  BUT THE FAILURE TO
INSTRUCT, WITHOUT REQUEST, IS NOT ERROR.  BRADLEY V. STATE, 35 ARIZ.
420; PEOPLE V. MITSUNAGA, 91 CAL. APP. 298; STATE V. WILLIAMS, 90 CONN.
126; STATE V. REID, 200 IOWA 892; STATE V. YOUNGER, 70 KAN. 226; STATE
V. LESH, 27 N.D. 165; BOSLEY V. STATE, 69 TEX. CR. 100; STATE V. COMER,
176 WASH. 257. 

THE JURY WILL, DESPITE INSTRUCTION, DRAW AN ADVERSE INFERENCE FROM
THE ACCUSED'S FAILURE TO TESTIFY.  SEE, 31 MICH. L.R. 226, 229; MICHAEL
V. UNITED STATES, SUPRA; WIGMORE ON EVIDENCE, 2D ED., SEC. 2272, P.
901.  A FORTIORI IF THEY ARE REMINDED BY AN INSTRUCTION THAT HE MAY
TESTIFY.  CONSEQUENTLY, REFUSAL TO INSTRUCT DOES NOT ADVERSELY AFFECT
HIS SUBSTANTIAL RIGHTS. 

THE STATUTE IS PRIMARILY INTENDED TO PREVENT THE USE OF ACCUSED'S
FAILURE TO TESTIFY AS AN INFERENCE OF GUILT BY PROHIBITING BOTH COURT
AND PROSECUTOR FROM COMMENTING, IN THE PRESENCE OF THE JURY, ON THAT
FACT.  THE ACCUSED IS ONLY PROTECTED FROM HAVING THE FACT OF HIS
SILENCE BEING USED, TO HIS PREJUDICE, AS EVIDENCE OF HIS GUILT, IN
VIOLATION OF HIS RIGHT TO BE SILENT UNTIL HIS GUILT IS ESTABLISHED
BEYOND A REASONABLE DOUBT.  THERE IS NOTHING IN THE STATUTE WHICH
PROTECTS HIM FROM AN UNFAVORABLE INFERENCE WHICH THE JURY MIGHT
NATURALLY DRAW FROM THE EXERCISE OF HIS PRIVILEGE TO REMAIN SILENT. 

NOR IS THERE ANY MERIT IN THE PETITIONER'S ASSERTION THAT THE
CONSTITUTIONAL PRIVILEGE OF AN ACCUSED NOT TO BE COMPELLED TO BE A
WITNESS AGAINST HIMSELF (FIFTH AMENDMENT) REQUIRES THE GIVING OF THE
INSTRUCTION REQUESTED IN THE INSTANT CASE. 

MERE SELF-INCRIMINATION IS NOT PROHIBITED BY THE FIFTH AMENDMENT.  IT
IS ONLY WHEN THAT INCRIMINATION BECOMES COMPULSORY THAT THE
PROSCRIPTION OF THE CONSTITUTION BECOMES APPLICABLE.  SINCE, UNDER THE
STATUTE, "IT IS A MATTER OF CHOICE WHETHER HE (THE ACCUSED) BECOME A
WITNESS OR NOT," (REAGAN V. UNITED STATES, 157 U.S. 301, 305) HIS
FAILURE TO EXERCISE SUCH CHOICE CANNOT BE SAID TO INVOLVE SUCH
COMPULSORY SELF-INCRIMINATION AS TO REQUIRE AN INSTRUCTION THAT NO
INFERENCE SHALL RESULT BECAUSE OF THE ACCUSED'S ELECTION NOT TO
TESTIFY. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

IN AFFIRMING THE CONVICTION OF JERRY BRUNO, WHO, WITH EIGHTY-SEVEN
OTHERS, WAS CONVICTED OF A CONSPIRACY TO VIOLATE THE NARCOTIC LAWS, THE
CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT, DEALT WITH AN
IMPORTANT QUESTION IN THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE IN
SUCH A WAY AS TO LEAD US TO GRANT CERTIORARI. 

SOME OF BRUNO'S CO-DEFENDANTS TOOK THE WITNESS-STAND.  HE DID NOT. 
THE TRIAL COURT GAVE THE FOLLOWING INSTRUCTIONS TO THE JURY REGARDING
THE ATTITUDE TO BE OBSERVED BY THEM TOWARDS THE ACCUSED AS A WITNESS: 

"IT IS THE PRIVILEGE OF A DEFENDANT TO TESTIFY AS A WITNESS IF, AND
ONLY WHEN, HE SO ELECTS; AND WHEN HE DOES TESTIFY HIS CREDIBILITY IS TO
BE DETERMINED IN THE LIGHT OF HIS INTEREST, WHICH USUALLY IS GREATER
THAN THAT OF ANY OTHER WITNESS, AND IS THEREFORE A MATTER WHICH MAY
SERIOUSLY AFFECT THE CREDENCE THAT SHALL BE GIVEN TO HIS TESTIMONY." 
BRUNO REQUESTED THIS ADDITIONAL INSTRUCTION: 

"THE FAILURE OF ANY DEFENDANT TO TAKE THE WITNESS STAND AND TESTIFY
IN HIS OWN BEHALF, DOES NOT CREATE ANY PRESUMPTION AGAINST HIM; THE
JURY IS CHARGED THAT IT MUST NOT PERMIT THAT FACT TO WEIGH IN THE
SLIGHTEST DEGREE AGAINST ANY SUCH DEFENDANT, NOR SHOULD THIS FACT ENTER
INTO THE DISCUSSIONS OR DELIBERATIONS OF THE JURY IN ANY MANNER." 

THE TRIAL JUDGE DECLINED THIS REQUEST, SAYING "I FEEL THAT I'VE
ALREADY COVERED THAT."  THE EXCEPTION TO THIS DENIAL HAVING BEEN SAVED,
THE CIRCUIT COURT OF APPEALS FOUND NO ERROR IN THE REFUSAL, ALTHOUGH
CONFESSING THAT THE GUIDANCE WHICH HAD BEEN GIVEN THE JURY "WAS NOT THE
EQUIVALENT OF WHAT THE DEFENDANT HAD REQUESTED," BRUNO V. UNITED
STATES, 105 F.2D 921.  BY THIS, WE TAKE IT, THE COURT BELOW MEANT THAT
THE TOPIC ON WHICH BRUNO PROFFERED AN INSTRUCTION HAD NOT BEEN CHARGED
AT ALL. 

THEREFORE, THE NARROW QUESTION BEFORE US IS WHETHER IN THESE
CIRCUMSTANCES BRUNO HAD THE INDEFEASIBLE RIGHT TO HAVE THE JURY TOLD IN
SUBSTANCE WHAT HE ASKED THE JUDGE TO TELL IT.  THE ISSUE IS DETERMINED
BY A PROPER APPLICATION OF THE ACT OF MARCH 16, 1878, 20 STAT. 30, NOW
28 U.S.C. SEC. 632.  FN1 

THAT ACT FREED THE ACCUSED IN A FEDERAL PROSECUTION FROM HIS COMMON
LAW DISABILITY AS A WITNESS.  BUT CONGRESS COUPLED HIS PRIVILEGE TO BE
A WITNESS WITH THE RIGHT TO HAVE A FAILURE TO EXERCISE THE PRIVILEGE
NOT TELL AGAINST HIM.  THE ACCUSED COULD "AT HIS OWN REQUEST BUT NOT
OTHERWISE BE A COMPETENT WITNESS.  AND HIS FAILURE TO MAKE SUCH A
REQUEST SHALL NOT CREATE ANY PRESUMPTION AGAINST HIM."  SUCH WAS THE
COMMAND OF THE LAW-MAKERS.  THE ONLY WAY CONGRESS COULD PROVIDE THAT
ABSTENTION FROM TESTIFYING SHOULD NOT TELL AGAINST AN ACCUSED WAS BY AN
IMPLIED DIRECTION TO JUDGES TO EXERCISE THEIR TRADITIONAL DUTY IN
GUIDING THE JURY BY INDICATING THE CONSIDERATIONS RELEVANT TO THE
LATTER'S VERDICT ON THE FACTS.  SPARF V. UNITED STATES, 156 U.S. 51. 
BY LEGISLATING AGAINST THE CREATION OF ANY "PRESUMPTION" FROM A FAILURE
TO TESTIFY, CONGRESS COULD NOT HAVE MEANT TO LEGISLATE AGAINST THE
PSYCHOLOGICAL OPERATION OF THE JURY'S MIND.  IT LAID DOWN CANONS OF
JUDICIAL ADMINISTRATION FOR THE TRIAL JUDGE TO THE EXTENT THAT HIS
INSTRUCTIONS TO THE JURY, CERTAINLY WHEN APPROPRIATELY INVOKED, MIGHT
AFFECT THE BEHAVIOR OF JURORS.  CONCEDEDLY THE CHARGE REQUESTED BY
BRUNO WAS CORRECT.  THE ACT OF MARCH 16, 1878, GAVE HIM THE RIGHT TO
INVOKE IT. 

A SUBSIDIARY QUESTION REMAINS FOR DETERMINATION.  IT DERIVES FROM THE
ACT OF FEBRUARY 26, 1919, 40 STAT. 1181, 28 U.S.C. SEC. 391,  FN2
WHEREBY APPELLATE COURTS ARE UNDER DUTY IN CRIMINAL AS WELL AS IN CIVIL
CASES TO DISREGARD "TECHNICAL ERRORS, DEFECTS, OR EXCEPTIONS WHICH DO
NOT AFFECT THE SUBSTANTIAL RIGHTS OF THE PARTIES."  IS THE DISREGARD OF
THE RIGHT WHICH CONGRESS GAVE TO BRUNO AN ERROR, THE COMMISSION OF
WHICH WE MAY DISREGARD?  WE HOLD NOT.  IT WOULD BE IDLE TO PREDETERMINE
THE SCOPE OF SUCH A REMEDIAL PROVISION AS SEC. 391 BY ANTICIPATING THE
MYRIAD VARIETIES OF RULINGS MADE IN TRIALS AND ATTEMPTING AN ABSTRACT,
INCLUSIVE DEFINITION OF "TECHNICAL ERRORS."  SUFFICE IT TO INDICATE,
WHAT EVERY STUDENT OF THE HISTORY BEHIND THE ACT OF FEBRUARY 26, 1919,
KNOWS, THAT THAT ACT WAS INTENDED TO PREVENT MATTERS CONCERNED WITH THE
MERE ETIQUETTE OF TRIALS AND WITH THE FORMALITIES AND MINUTIAE OF
PROCEDURE FROM TOUCHING THE MERITS OF A VERDICT.  OF A VERY DIFFERENT
ORDER OF IMPORTANCE IS THE RIGHT OF AN ACCUSED TO INSIST ON A PRIVILEGE
WHICH CONGRESS HAS GIVEN HIM. 

TO THE SUGGESTION THAT IT BENEFITS A DEFENDANT WHO FAILS TO TAKE THE
STAND NOT TO HAVE THE ATTENTION OF THE JURY DIRECTED TO THAT FACT, IT
SUFFICES TO SAY THAT, HOWEVER DIFFICULT IT MAY BE TO EXERCISE
ENLIGHTENED SELF-INTEREST, THE ACCUSED SHOULD BE ALLOWED TO MAKE HIS
OWN CHOICE WHEN AN ACT OF CONGRESS AUTHORIZES HIM TO CHOOSE.  AND WHEN
IT IS URGED THAT IT IS A PSYCHOLOGICAL IMPOSSIBILITY NOT TO HAVE A
PRESUMPTION ARISE IN THE MINDS OF JURORS AGAINST AN ACCUSED WHO FAILS
TO TESTIFY, THE SHORT ANSWER IS THAT CONGRESS LEGISLATED ON A CONTRARY
ASSUMPTION AND NOT WITHOUT SUPPORT IN EXPERIENCE.  IT WAS FOR CONGRESS
TO DECIDE WHETHER WHAT IT DEEMED LEGALLY SIGNIFICANT WAS
PSYCHOLOGICALLY FUTILE.  CERTAINLY, DESPITE THE VAST ACCUMULATION OF
PSYCHOLOGICAL DATA, WE HAVE NOT YET ATTAINED THAT CERTITUDE ABOUT THE
HUMAN MIND WHICH WOULD JUSTIFY US IN DISREGARDING THE WILL OF CONGRESS
BY A DOGMATIC ASSUMPTION THAT JURORS, IF PROPERLY ADMONISHED, NEITHER
COULD NOR WOULD HEED THE INSTRUCTIONS OF THE TRIAL COURT THAT THE
FAILURE OF AN ACCUSED TO BE A WITNESS IN HIS OWN CAUSE "SHALL NOT
CREATE ANY PRESUMPTION AGAINST HIM." 

WE CONCLUDE THAT THE SUBSTANCE OF THE DENIED REQUEST SHOULD HAVE BEEN
GRANTED, AND THE JUDGMENT THEREFORE IS REVERSED. 

FN1  SECTION 632: "IN THE TRIAL OF ALL INDICTMENTS, INFORMATIONS,
COMPLAINTS, AND OTHER PROCEEDINGS AGAINST PERSONS CHARGED WITH THE
COMMISSION OF CRIMES, OFFENSES, AND MISDEMEANORS, IN THE UNITED STATES
COURTS, TERRITORIAL COURTS, AND COURTS MARTIAL, AND COURTS OF INQUIRY,
IN ANY STATE OR TERRITORY, INCLUDING THE DISTRICT OF COLUMBIA, THE
PERSON SO CHARGED SHALL, AT HIS OWN REQUEST BUT NOT OTHERWISE, BE A
COMPETENT WITNESS.  AND HIS FAILURE TO MAKE SUCH REQUEST SHALL NOT
CREATE ANY PRESUMPTION AGAINST HIM." 

FN2  SECTION 391:  "ALL UNITED STATES COURTS SHALL HAVE POWER TO
GRANT NEW TRIALS, IN CASES WHERE THERE HAS BEEN A TRIAL BY JURY, FOR
REASONS FOR WHICH NEW TRIALS HAVE USUALLY BEEN GRANTED IN THE COURTS OF
LAW.  ON THE HEARING OF ANY APPEAL, CERTIORARI, OR MOTION FOR A NEW
TRIAL, IN ANY CASE, CIVIL OR CRIMINAL, THE COURT SHALL GIVE JUDGMENT
AFTER AN EXAMINATION OF THE ENTIRE RECORD BEFORE THE COURT, WITHOUT
REGARD TO TECHNICAL ERRORS, DEFECTS, OR EXCEPTIONS WHICH DO NOT AFFECT
THE SUBSTANTIAL RIGHTS OF THE PARTIES." 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 
..END :




PEPPER V. LITTON, 308 U.S. 295 


NO. 39.  ARGUED NOVEMBER 9, 10, 1939.  - DECIDED DECEMBER 4, 1939.  -
100 F.2D 830, REVERSED. 


1.  THE OVERRULING BY A STATE COURT OF A MOTION MADE BY THE TRUSTEE OF
A BANKRUPT CORPORATION TO SET ASIDE A JUDGMENT AGAINST THE CORPORATION,
WHERE SUCH MOTION WAS BASED EXCLUSIVELY UPON THE GROUND THAT THE STATE
PRACTICE GOVERNING CONFESSION OF JUDGMENTS WAS NOT FOLLOWED IN
OBTAINING THE JUDGMENT, AND UPON THE GROUND THAT THE AGENT PURPORTING
TO ACT FOR THE CORPORATION IN THE MATTER WAS NOT AUTHORIZED, DOES NOT
BAR THE TRUSTEE, ACTING IN THE BANKRUPTCY COURT ON BEHALF OF OTHER
CREDITORS, FROM ATTACKING THE VALIDITY OR PRIORITY OF THE CLAIM
UNDERLYING THE JUDGMENT,  - MATTERS WHICH WERE NOT IN ISSUE AND COULD
NOT HAVE BEEN DECIDED IN THE STATE COURT PROCEEDING.  P. 302. 

2.  COURTS OF BANKRUPTCY, IN PASSING UPON THE VALIDITY AND PRIORITY
OF CLAIMS, EXERCISE EQUITY POWERS AND HAVE NOT ONLY THE POWER BUT THE
DUTY TO DISALLOW OR SUBORDINATE CLAIMS IF EQUITY AND FAIRNESS SO
REQUIRE.  THAT POWER AND DUTY ARE ESPECIALLY CLEAR WHERE THE CLAIM
SEEKING ALLOWANCE ACCRUES TO THE BENEFIT OF AN OFFICER, DIRECTOR OR
STOCKHOLDER OF THE BANKRUPT.  P. 303. 

3.  MERGER OF A CLAIM IN A JUDGMENT DOES NOT CHANGE ITS NATURE IN SO
FAR AS PROVABILITY IN BANKRUPTCY IS CONCERNED; THE COURT OF BANKRUPTCY
MAY LOOK BEHIND THE JUDGMENT TO THE ESSENCE OF THE LIABILITY.  P. 305. 

4.  A DOMINANT AND CONTROLLING STOCKHOLDER HAS A FIDUCIARY DUTY TO
CREDITORS IN DEALING WITH THE CORPORATION AND WITH THEM, AND WHEN HIS
TRANSACTIONS ARE CHALLENGED MUST PROVE THE GOOD FAITH OF THE
TRANSACTIONS AND THEIR INHERENT FAIRNESS FROM THE VIEWPOINT OF THE
CORPORATION AND THOSE INTERESTED THEREIN.  THIS OBLIGATION IS
ENFORCEABLE BY THE TRUSTEE IN BANKRUPTCY OF THE CORPORATION.  P. 306. 

5.  A DOMINANT OR CONTROLLING STOCKHOLDER OR GROUP OF STOCKHOLDERS
ARE FIDUCIARIES, AS ARE DIRECTORS.  THEIR POWERS ARE POWERS IN TRUST. 
P. 306. 

6.  THE DOMINANT AND CONTROLLING STOCKHOLDER OF A CORPORATION,
SCHEMING TO DEFRAUD ONE OF ITS CREDITORS, SUED THE CORPORATION ON
ACCUMULATED UNPAID SALARY CLAIMS, THE AMOUNTS OF WHICH WERE FIXED BY
HIMSELF, AND WHICH HE SOUGHT TO COLLECT ONLY WHEN THE CORPORATION WAS
IN FINANCIAL DIFFICULTIES; CAUSED THE CORPORATION TO CONFESS JUDGMENT;
USED THE JUDGMENT TO DELAY THE OTHER CREDITOR; LEVIED ON PART OF THE
CORPORATE PROPERTY AND BOUGHT IT IN AT SHERIFF'S SALE FOR MUCH LESS
THAN HIS JUDGMENT OR THE OTHER CLAIM; TRANSFERRED THE PROPERTY TO A
SECOND "ONE-MAN" CORPORATION FOR SIX TIMES WHAT IT COST HIM AT THE
SALE, PAYABLE IN STOCK; CAUSED THE FIRST CORPORATION TO GO INTO
VOLUNTARY BANKRUPTCY FOR THE SOLE PURPOSE OF AVOIDING PAYMENT OF THE
OTHER CREDITOR'S CLAIM; BOUGHT UP OTHER DEBTS; AND PRESENTED HIS
JUDGMENT AS A CLAIM, PREFERRED IN PART, AGAINST THE REMAINING ASSETS OF
THE BANKRUPT.  HELD, THAT THE JUDGMENT CLAIM WAS PROPERLY DISALLOWED BY
THE COURT OF BANKRUPTCY EITHER AS A SECURED OR AS AN UNSECURED CLAIM. 
P. 310. 

7.  THE FACT THAT THE JUDGMENT LIEN WAS PERFECTED MORE THAN FOUR
MONTHS PRECEDING BANKRUPTCY CAN NOT AFFECT THE RESULT.  P. 312. 

PEPPER V. LITTON. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 307 U.S. 620, TO REVIEW THE REVERSAL OF A JUDGMENT
DISALLOWING A CLAIM IN BANKRUPTCY. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE CASE PRESENTS THE QUESTION OF THE POWER OF THE BANKRUPTCY COURT
TO DISALLOW EITHER AS A SECURED OR AS A GENERAL OR UNSECURED CLAIM A
JUDGMENT OBTAINED BY THE DOMINANT AND CONTROLLING STOCKHOLDER OF THE
BANKRUPT CORPORATION ON ALLEGED SALARY CLAIMS.  THE JUDGMENT OF THE
DISTRICT COURT DISALLOWING THE CLAIM WAS REVERSED BY THE CIRCUIT COURT
OF APPEALS (100 F.2D 830).  WE GRANTED CERTIORARI BECAUSE OF AN
APPARENT RESTRICTION IMPOSED BY THAT DECISION ON THE POWER OF THE
BANKRUPTCY COURT TO DISALLOW OR TO SUBORDINATE SUCH CLAIMS IN EXERCISE
OF ITS BROAD EQUITABLE POWERS. 

THE FINDINGS OF THE DISTRICT COURT, AMPLY SUPPORTED BY THE EVIDENCE,
REVEAL A SCHEME TO DEFRAUD CREDITORS REMINISCENT OF SOME OF THE EVILS
WITH WHICH 13 ELIZ.  C. 5 WAS DESIGNED TO COPE.  BUT FOR THE USE OF A
SO-CALLED "ONE-MAN" OR FAMILY CORPORATION, DIXIE SPLINT COAL COMPANY,
OF WHICH RESPONDENT WAS THE DOMINANT AND CONTROLLING STOCKHOLDER, THAT
SCHEME FOLLOWED AN ANCIENT PATTERN. 

IN 1931 PEPPER, THE PETITIONER, BROUGHT SUIT IN A STATE COURT IN
VIRGINIA AGAINST DIXIE SPLINT COAL COMPANY AND LITTON, THE RESPONDENT,
FOR AN ACCOUNTING OF ROYALTIES DUE PEPPER UNDER A LEASE.  FN1  WHILE
THIS SUIT WAS PENDING AND IN ANTICIPATION THAT PEPPER WOULD RECOVER,
LITTON CAUSED DIXIE SPLINT COAL COMPANY TO CONFESS A JUDGMENT IN
LITTON'S FAVOR IN THE AMOUNT OF $33,468.89, REPRESENTING ALLEGED
ACCUMULATED SALARY CLAIMS DATING BACK AT LEAST FIVE YEARS.  THIS WAS
DONE BY P. H. SMITH, SECRETARY AND TREASURER OF DIXIE SPLINT COAL
COMPANY, WHO, ACCORDING TO THE DISTRICT COURT, WAS "AN EMPLOYEE OF
LITTON AND SUBSERVIENT TO THE LATTER'S WILL."  THIS WAS ON JUNE 2,
1933.  EXECUTION WAS ISSUED ON THIS JUDGMENT THE SAME DAY BUT NO RETURN
WAS MADE THEREON, LITTON WAITING "QUIETLY UNTIL THE OUTCOME OF THE
PEPPER SUIT WAS DEFINITELY KNOWN."  ON FEBRUARY 19, 1934, PEPPER
OBTAINED A JUDGMENT AGAINST DIXIE SPLINT COAL COMPANY FOR $9,000.  ON
MOTION OF THE COMPANY, EXECUTION ON THE JUDGMENT WAS SUSPENDED FOR
NINETY DAYS TO PERMIT AN APPEAL.  BUT DEFENDANT IN THAT SUIT DID NOT
APPEAL.  FN2  INSTEAD, ON MARCH 19, 1934, WHILE EXECUTION ON THE PEPPER
JUDGMENT WAS SUSPENDED, LITTON CAUSED AN EXECUTION TO ISSUE ON HIS
CONFESSED JUDGMENT AND LEVY TO BE MADE THEREUNDER.  YET LITTON "HAD NO
INTENTION OF TRYING TO SATISFY HIS CONFESSED JUDGMENT" AGAINST HIS
CORPORATION "UNLESS AND UNTIL IT BECAME NECESSARY TO DO SO"; HE WAS
USING IT "ONLY AS A SHIELD AGAINST THE PEPPER DEBT."  THUS, WHEN
EXECUTION AND LEVY WERE MADE MARCH 19, 1934, NO STEPS WERE TAKEN FOR
OVER TWO MONTHS TOWARDS A SALE OF THE PROPERTY ON WHICH LEVY HAD BEEN
MADE.  ON MAY 31, 1934, PEPPER CAUSED AN EXECUTION TO ISSUE ON HER
JUDGMENT, AND LEVY WAS MADE JUNE 2, 1934.  ON THIS LATTER DATE THE
SHERIFF "WHO SEEMS TO HAVE BEEN COOPERATING WITH LITTON" ADVERTISED THE
PROPERTY FOR SALE UNDER THE LITTON LEVY MADE IN THE PREVIOUS MARCH.  ON
JUNE 14, 1934, THE SALE WAS HELD AND LITTON BECAME THE PURCHASER OF THE
PROPERTY SOLD AT THE SUM OF $3,200. 

THE NEXT STEP IN THE "PLANNED AND FRAUDULENT SCHEME" WAS THE
FORMATION BY LITTON OF "ANOTHER OF HIS ONE-MAN CORPORATIONS," DIXIE
BEAVER COAL COMPANY, TO WHICH LITTON TRANSFERRED THE PROPERTY HE HAD
ACQUIRED AT THE EXECUTION SALE AT A VALUATION OF $20,135.36 TO BE PAID
FOR IN STOCK OF THE NEW COMPANY.  FN3 

ON SEPTEMBER 4, 1934, THE THIRD STEP IN LITTON'S SCHEME WAS TAKEN. 
ON THAT DATE DIXIE SPLINT COAL COMPANY, PURSUANT TO A RESOLUTION OF THE
BOARD OF DIRECTORS, PASSED JUNE 16, 1934, (TWO DAYS AFTER THE LITTON
EXECUTION SALE) FILED A VOLUNTARY PETITION IN BANKRUPTCY.  THIS STEP,
ACCORDING TO THE FINDINGS BELOW WAS "PLAINLY FOR THE SOLE PURPOSE OF
AVOIDING PAYMENT OF THE PEPPER DEBT."  THE BANKRUPT AT THAT TIME HAD
$4,500 ON BANK DEPOSIT AND $12,000 IN ACCOUNTS RECEIVABLE, MOST OF
WHICH WAS GOOD.  THE CASH ON DEPOSIT WAS THEN MORE THAN SUFFICIENT TO
PAY ALL CREDITORS WITH THE EXCEPTION OF PEPPER.  AND LITTON CAUSED THE
VOLUNTARY PETITION TO BE FILED "FEELING CONFIDENT THAT HIS CONFESSED
JUDGMENT WOULD COVER AND CONSUME" THE REMAINING ASSETS.  ADJUDICATION
FOLLOWED ON SEPTEMBER 7, 1934. 

LITTON'S NEXT STEP IN HIS SCHEME TO DEFEAT THE PEPPER CLAIM WAS TO
PURCHASE WAGE CLAIMS AGAINST THE BANKRUPT AND TO CAUSE "IN SOME MANNER"
OTHER CLAIMS TO BE WITHDRAWN.  THIS WAS DONE, ACCORDING TO THE DISTRICT
COURT, SO THAT PEPPER MIGHT BE MADE TO APPEAR AS THE ONLY GENERAL
CREDITOR - A SITUATION DESIGNED TO GIVE LITTON A DECIDED TECHNICAL
ADVANTAGE, AS WE SHALL SEE. 

ON JUNE 13, 1934, PEPPER HAD INSTITUTED SUIT IN THE VIRGINIA STATE
COURT TO HAVE THE LITTON JUDGMENT DECLARED VOID.  ON JUNE 15, 1934, THE
DAY FOLLOWING THE SALE UNDER THE LITTON EXECUTION, THE SHERIFF
INSTITUTED AN INTERPLEADER ACTION JOINING LITTON, PEPPER AND THE
CLINCHFIELD COAL CORPORATION AND ALLEGING, INTER ALIA, THAT THAT
CORPORATION HAD A PRIOR LIEN ON ALL THE PROPERTY SOLD FOR A DEBT OF
$2,153.  LITTON AND PEPPER BOTH ANSWERED ADMITTING THE PRIOR LIEN OF
THE CORPORATION, PEPPER ANSWERING "WITHOUT PREJUDICE TO HER RIGHTS"
ASSERTED IN THE CHANCERY CAUSE TO HAVE THE LITTON JUDGMENT SET ASIDE. 
ON JULY 18, 1934, AN ORDER IN THE INTERPLEADER SUIT WAS ENTERED
DIRECTING PAYMENT OF $2,153.00 TO THE CLINCHFIELD COAL CORPORATION. 

THEREAFTER THE TRUSTEE, WITH THE AUTHORITY OF THE BANKRUPTCY COURT,
MOVED IN THE STATE COURT TO SET ASIDE THE JUDGMENT AND TO QUASH THE
EXECUTION THEREOF ON THE GROUND THAT THE JUDGMENT WAS VOID SINCE IT HAD
NOT BEEN CONFESSED IN THE MANNER REQUIRED BY THE VIRGINIA STATUTE.  FN4
THE COURT CONCLUDED THAT THE LITTON JUDGMENT WAS VOID BUT DENIED THE
MOTION ON THE GROUNDS THAT THE TRUSTEE WAS ESTOPPED TO CHALLENGE IT.
THE COURT HELD THAT PEPPER IN THE INTERPLEADER SUIT HAD TREATED THE
FUND DERIVED FROM THE EXECUTION SALE UNDER THE LITTON JUDGMENT AS VALID
AND CONSEQUENTLY HAD ELECTED TO RECOGNIZE THE VALIDITY OF THE
JUDGMENT.  SINCE LITTON HAD ACQUIRED, OR CAUSED TO HAVE WITHDRAWN, ALL
THE REMAINING CLAIMS AGAINST THE ESTATE, THE TRUSTEE IN THIS SUIT WAS
REPRESENTING ONLY PEPPER.  THEREFORE, SINCE PEPPER WAS ESTOPPED, SO WAS
THE TRUSTEE.  ON APPEAL THAT JUDGMENT WAS AFFIRMED ON THOSE GROUNDS. 
SMITH V. LITTON, 167 VA. 263; 188 S.E. 214. 

THEREAFTER THE QUESTION OF THE ALLOWANCE OF THE LITTON JUDGMENT CAME
BEFORE THE BANKRUPTCY COURT ON EXCEPTIONS PREVIOUSLY MADE BY PEPPER. 
THAT COURT CONCLUDED THAT THE DECISION BY THE STATE COURT THAT THE
TRUSTEE WAS ESTOPPED TO ATTACK THE LITTON JUDGMENT THERE, DID NOT
PREVENT THE BANKRUPTCY COURT FROM CONSIDERING ITS VALIDITY.  IT
THEREFORE REVIEWED ALL THE FACTS AND CONCLUDED (1) THAT LITTON AND THE
DIXIE SPLINT COAL COMPANY HAD MADE A "DELIBERATE AND CAREFULLY PLANNED
ATTEMPT" TO AVOID "THE PAYMENT OF A JUST DEBT"; (2) THAT LITTON AND THE
DIXIE SPLINT COAL COMPANY WERE "IN REALITY THE SAME"; AND (3) THAT THE
ALLEGED SALARY CLAIMS UNDERLYING THE LITTON JUDGMENT DID NOT REPRESENT
AN "HONEST DEBT" OF THE BANKRUPT CORPORATION, BEING MERELY BOOKKEEPING
ENTRIES FOR THE DOUBLE PURPOSE OF LESSENING INCOME TAXES AND OF
ENABLING LITTON TO APPEAR AS A CREDITOR OF THE CORPORATION IN CASE IT
BECAME FINANCIALLY INVOLVED.  FN5  ACCORDINGLY, THE DISTRICT COURT
DISALLOWED THE LITTON CLAIM EITHER AS A SECURED OR UNSECURED CLAIM AND
DIRECTED THE TRUSTEE TO RECOVER FOR THE BENEFIT OF THE ESTATE THE
PROPERTY OR ITS VALUE WHICH LITTON PURCHASED AT THE EXECUTION SALE ON
JUNE 14, 1934.  ON APPEAL THE CIRCUIT COURT OF APPEALS REVERSED THAT
JUDGMENT HOLDING THAT THE DECISION IN THE STATE COURT WAS RES JUDICATA
IN THE BANKRUPTCY PROCEEDINGS. 

WE THINK THAT THE CIRCUIT COURT OF APPEALS WAS IN ERROR IN REVERSING
THE JUDGMENT OF THE DISTRICT COURT. 

IN THE FIRST PLACE, RES JUDICATA DID NOT PREVENT THE DISTRICT COURT
FROM EXAMINING INTO THE LITTON JUDGMENT AND DISALLOWING OR
SUBORDINATING IT AS A CLAIM.  WHEN THAT CLAIM WAS ATTACKED IN THE
BANKRUPTCY COURT LITTON DID NOT SHOW THAT THE PROCEEDING IN THE STATE
COURT WAS ANYTHING MORE THAN A PROCEEDING UNDER VIRGINIA PRACTICE TO
SET ASIDE THE JUDGMENT IN HIS FAVOR ON THE GROUND THAT IT WAS IRREGULAR
OR VOID UPON ITS FACE.  HE FAILED TO SHOW THAT THE JUDGMENT IN THE
STATE COURT WAS CONCLUSIVE IN HIS FAVOR ON THE VALIDITY OR PRIORITY OF
THE UNDERLYING CLAIM, AS RESPECTS THE OTHER CREDITORS OF THE BANKRUPT
CORPORATION - A DUTY WHICH WAS INCUMBENT ON HIM.  ON THE PLEADINGS IN
THE STATE COURT THE VALIDITY OF THE UNDERLYING CLAIM WAS NOT IN ISSUE. 
NOR WAS THERE PRESENTED TO THE STATE COURT THE QUESTION OF WHETHER OR
NOT THE LITTON JUDGMENT MIGHT BE SUBORDINATED TO THE CLAIMS OF OTHER
CREDITORS UPON EQUITABLE PRINCIPLES.  THE MOTION ON WHICH THAT
PROCEEDING WAS BASED CHALLENGED THE LITTON JUDGMENT ON ONE GROUND ONLY,
VIZ., THAT IT WAS VOID AB INITIO BECAUSE IT WAS NOT CONFESSED BY DIXIE
SPLINT COAL COMPANY IN THE MANNER REQUIRED BY THE VIRGINIA STATUTE AND
BECAUSE P. H. SMITH DID NOT HAVE EITHER AN IMPLIED OR EXPRESS POWER TO
CONFESS IT.  IN OTHER WORDS, IN THE STATE COURT UNDER THE PLEADINGS AND
PRACTICE, THE ONLY DECREE WHICH WAS ASKED OR COULD BE GIVEN IN THE
PLAINTIFF'S FAVOR WAS FOR CANCELLATION OF THE JUDGMENT AS A RECORD
OBLIGATION OF THE BANKRUPT.  IT IS THEREFORE PLAIN THAT THE ISSUE WHICH
THE BANKRUPTCY COURT LATER CONSIDERED WAS NOT AN ISSUE IN THE TRIAL OF
THE CAUSE IN THE STATE COURT AND COULD NOT BE ADJUDICATED THERE.  FN6
HENCE, THE FAILURE ON THE PART OF LITTON TO ESTABLISH THAT THE STATE
JUDGMENT WAS RES JUDICATA PLUS HIS SUBMISSION OF HIS JUDGMENT TO THE
BANKRUPTCY COURT FOR ALLOWANCE (AS A PREFERRED CLAIM TO THE EXTENT THAT
IT WAS SECURED BY THE ALLEGED LIEN AND AS A COMMON CLAIM AS RESPECTS
THE DEFICIENCY) PLAINLY LEFT THE BANKRUPTCY COURT WITH FULL AUTHORITY
TO FOLLOW THE COURSE IT TOOK AND TO DETERMINE THE VALIDITY OF LITTON'S
ALLEGED SECURED CLAIM AND THE PRIORITY WHICH SHOULD BE ACCORDED IT IN
THE DISTRIBUTION OF THE BANKRUPT ESTATE.  IN THE SECOND PLACE, EVEN
THOUGH WE ASSUME THAT THE ALLEGED SALARY CLAIM ON WHICH THE LITTON
JUDGMENT WAS BASED WAS NOT FICTITIOUS BUT ACTUALLY EXISTED, WE ARE OF
THE OPINION THAT THE DISTRICT COURT PROPERLY DISALLOWED OR SUBORDINATED
IT. 

COURTS OF BANKRUPTCY ARE CONSTITUTED BY SECS. 1 AND 2 OF THE
BANKRUPTCY ACT (30 STAT. 544) AND BY THE LATTER SECTION ARE INVESTED
"WITH SUCH JURISDICTION AT LAW AND IN EQUITY AS WILL ENABLE THEM TO
EXERCISE ORIGINAL JURISDICTION IN BANKRUPTCY PROCEEDINGS." 
CONSEQUENTLY THIS COURT HAS HELD THAT FOR MANY PURPOSES "COURTS OF
BANKRUPTCY ARE ESSENTIALLY COURTS OF EQUITY, AND THEIR PROCEEDINGS
INHERENTLY PROCEEDINGS IN EQUITY."  LOCAL LOAN CO. V. HUNT, 292 U.S.
234, 240.  BY VIRTUE OF SEC. 2 A BANKRUPTCY COURT IS A COURT OF EQUITY
AT LEAST IN THE SENSE THAT IN THE EXERCISE OF THE JURISDICTION
CONFERRED UPON IT BY THE ACT, IT APPLIES THE PRINCIPLES AND RULES OF
EQUITY JURISPRUDENCE.  LARSON V. FIRST STATE BANK, 21 F.2D 936, 938. 
AMONG THE GRANTED POWERS ARE THE ALLOWANCE AND DISALLOWANCE OF CLAIMS;
FN7  THE COLLECTION AND DISTRIBUTION OF THE ESTATES OF BANKRUPTS AND
THE DETERMINATION OF CONTROVERSIES IN RELATION THERETO; FN8  THE
REJECTION IN WHOLE OR IN PART "ACCORDING TO THE EQUITIES OF THE CASE"
OF CLAIMS PREVIOUSLY ALLOWED; FN9  AND THE ENTERING OF SUCH JUDGMENTS
"AS MAY BE NECESSARY FOR THE ENFORCEMENT OF THE PROVISIONS" OF THE
ACT.  FN10  IN SUCH RESPECTS THE JURISDICTION OF THE BANKRUPTCY COURT
IS EXCLUSIVE OF ALL OTHER COURTS.  UNITED STATES FIDELITY & GUARANTY
CO. V. BRAY, 225 U.S. 205, 217. 

THE BANKRUPTCY COURTS HAVE EXERCISED THESE EQUITABLE POWERS IN
PASSING ON A WIDE RANGE OF PROBLEMS ARISING OUT OF THE ADMINISTRATION
OF BANKRUPT ESTATES.  FN11  THEY HAVE BEEN INVOKED TO THE END THAT
FRAUD WILL NOT PREVAIL, THAT SUBSTANCE WILL NOT GIVE WAY TO FORM, THAT
TECHNICAL CONSIDERATIONS WILL NOT PREVENT SUBSTANTIAL JUSTICE FROM
BEING DONE.  BY REASON OF THE EXPRESS PROVISIONS OF SEC. 2 THESE
EQUITABLE POWERS ARE TO BE EXERCISED ON THE ALLOWANCE OF CLAIMS, A
CONCLUSION WHICH IS FORTIFIED BY SEC. 57(K).  FN12  FOR CERTAINLY IF,
AS PROVIDED IN THE LATTER SECTION, A CLAIM WHICH HAS BEEN ALLOWED MAY
BE LATER "REJECTED IN WHOLE OR IN PART, ACCORDING TO THE EQUITIES OF
THE CASE," DISALLOWANCE OR SUBORDINATION IN LIGHT OF EQUITABLE
CONSIDERATIONS MAY ORIGINALLY BE MADE. 

HENCE, THIS COURT HAS HELD THAT A BANKRUPTCY COURT HAS FULL POWER TO
INQUIRE INTO THE VALIDITY OF ANY CLAIM ASSERTED AGAINST THE ESTATE AND
TO DISALLOW IT IF IT IS ASCERTAINED TO BE WITHOUT LAWFUL EXISTENCE. 
LESSER V. GRAY, 236 U.S. 70.  AND THE MERE FACT THAT A CLAIM HAS BEEN
REDUCED TO JUDGMENT DOES NOT PREVENT SUCH AN INQUIRY.  AS THE MERGER OF
A CLAIM INTO A JUDGMENT DOES NOT CHANGE ITS NATURE SO FAR AS
PROVABILITY IS CONCERNED, BOYNTON V. BALL, 121 U.S. 457, SO THE COURT
MAY LOOK BEHIND THE JUDGMENT TO DETERMINE THE ESSENTIAL NATURE OF THE
LIABILITY FOR PURPOSES OF PROOF AND ALLOWANCE.  WETMORE V. MARKOE, 196
U.S. 68.  IT MAY ASCERTAIN THE VALIDITY OF LIENS, MARSHAL THEM, AND
CONTROL THEIR ENFORCEMENT AND LIQUIDATION.  ISAACS V. HOBBS TIE &
TIMBER CO., 282 U.S. 734.  AND THE BANKRUPTCY TRUSTEE MAY COLLATERALLY
ATTACK A JUDGMENT OFFERED AS A CLAIM AGAINST THE ESTATE FOR THE PURPOSE
OF SHOWING THAT IT WAS OBTAINED BY COLLUSION OF THE PARTIES OR IS
FOUNDED UPON NO REAL DEBT.  FN13    THAT EQUITABLE POWER ALSO EXISTS IN
PASSING ON CLAIMS PRESENTED BY AN OFFICER, DIRECTOR, OR STOCKHOLDER IN
THE BANKRUPTCY PROCEEDINGS OF HIS CORPORATION.  THE MERE FACT THAT AN
OFFICER, DIRECTOR, OR STOCKHOLDER HAS A CLAIM AGAINST HIS BANKRUPT
CORPORATION OR THAT HE HAS REDUCED THAT CLAIM TO JUDGMENT DOES NOT MEAN
THAT THE BANKRUPTCY COURT MUST ACCORD IT PARI PASSU TREATMENT WITH THE
CLAIMS OF OTHER CREDITORS.  ITS DISALLOWANCE OR SUBORDINATION MAY BE
NECESSITATED BY CERTAIN CARDINAL PRINCIPLES OF EQUITY JURISPRUDENCE.  A
DIRECTOR IS A FIDUCIARY.  TWIN-LICK OIL CO. V. MARBURY, 91 U.S. 587,
588.  SO IS A DOMINANT OR CONTROLLING STOCKHOLDER OR GROUP OF
STOCKHOLDERS.  SOUTHERN PACIFIC CO. V. BOGERT, 250 U.S. 483, 492. 
THEIR POWERS ARE POWERS IN TRUST.  SEE JACKSON V. LUDELING, 21 WALL. 
616, 624.  THEIR DEALINGS WITH THE CORPORATION ARE SUBJECTED TO
RIGOROUS SCRUTINY AND WHERE ANY OF THEIR CONTRACTS OR ENGAGEMENTS WITH
THE CORPORATION IS CHALLENGED THE BURDEN IS ON THE DIRECTOR OR
STOCKHOLDER NOT ONLY TO PROVE THE GOOD FAITH OF THE TRANSACTION BUT
ALSO TO SHOW ITS INHERENT FAIRNESS FROM THE VIEWPOINT OF THE
CORPORATION AND THOSE INTERESTED THEREIN.  GEDDES V. ANACONDA COPPER
MINING CO., 254 U.S. 590, 599.  THE ESSENCE OF THE TEST IS WHETHER OR
NOT UNDER ALL THE CIRCUMSTANCES THE TRANSACTION CARRIES THE EARMARKS OF
AN ARM'S LENGTH BARGAIN.  FN14  IF IT DOES NOT, EQUITY WILL SET IT
ASIDE.  WHILE NORMALLY THAT FIDUCIARY OBLIGATION IS ENFORCEABLE
DIRECTLY BY THE CORPORATION, OR THROUGH A STOCKHOLDER'S DERIVATIVE
ACTION,  FN15  IT IS, IN THE EVENT OF BANKRUPTCY OF THE CORPORATION,
ENFORCEABLE BY THE TRUSTEE.  FN16 FOR THAT STANDARD OF FIDUCIARY
OBLIGATION IS DESIGNED FOR THE PROTECTION OF THE ENTIRE COMMUNITY OF
INTERESTS IN THE CORPORATION  FN17  - CREDITORS AS WELL AS
STOCKHOLDERS. 

AS WE HAVE SAID, THE BANKRUPTCY COURT IN PASSING ON ALLOWANCE OF
CLAIMS SITS AS A COURT OF EQUITY.  HENCE THESE RULES GOVERNING THE
FIDUCIARY RESPONSIBILITIES OF DIRECTORS AND STOCKHOLDERS COME INTO PLAY
ON ALLOWANCE OF THEIR CLAIMS IN BANKRUPTCY.  IN THE EXERCISE OF ITS
EQUITABLE JURISDICTION THE BANKRUPTCY COURT HAS THE POWER TO SIFT THE
CIRCUMSTANCES SURROUNDING ANY CLAIM TO SEE THAT INJUSTICE OR UNFAIRNESS
IS NOT DONE IN ADMINISTRATION OF THE BANKRUPT ESTATE.  FN18  AND ITS
DUTY SO TO DO IS ESPECIALLY CLEAR WHEN THE CLAIM SEEKING ALLOWANCE
ACCRUES TO THE BENEFIT OF AN OFFICER, DIRECTOR, OR STOCKHOLDER.  THAT
IS CLEARLY THE POWER AND DUTY OF THE BANKRUPTCY COURTS UNDER THE
REORGANIZATION SECTIONS.  IN TAYLOR V. STANDARD GAS & ELECTRIC CO., 306
U.S. 307, THIS COURT HELD THAT THE CLAIM OF STANDARD AGAINST ITS
SUBSIDIARY (ADMITTEDLY A CLAIM DUE AND OWING) SHOULD BE ALLOWED TO
PARTICIPATE IN THE REORGANIZATION PLAN OF THE SUBSIDIARY ONLY IN
SUBORDINATION TO THE PREFERRED STOCK OF THE SUBSIDIARY.  THIS WAS BASED
ON THE EQUITIES OF THE CASE - THE HISTORY OF SPOLIATION, MISMANAGEMENT,
AND FAITHLESS STEWARDSHIP OF THE AFFAIRS OF THE SUBSIDIARY BY STANDARD
TO THE DETRIMENT OF THE PUBLIC INVESTORS.  SIMILAR RESULTS HAVE
PROPERLY BEEN REACHED IN ORDINARY BANKRUPTCY PROCEEDINGS.  THUS, SALARY
CLAIMS OF OFFICERS, DIRECTORS, AND STOCKHOLDERS IN THE BANKRUPTCY OF
"ONE-MAN" OR FAMILY CORPORATIONS HAVE BEEN DISALLOWED OR SUBORDINATED
WHERE THE COURTS HAVE BEEN SATISFIED THAT ALLOWANCE OF THE CLAIMS WOULD
NOT BE FAIR OR EQUITABLE TO OTHER CREDITORS.  FN19  AND THAT RESULT MAY
BE REACHED EVEN THOUGH THE SALARY CLAIM HAS BEEN REDUCED TO JUDGMENT. 
FN20  IT IS REACHED WHERE THE CLAIM ASSERTED IS VOID OR VOIDABLE
BECAUSE THE VOTE OF THE INTERESTED DIRECTOR OR STOCKHOLDER HELPED BRING
IT INTO BEING OR WHERE THE HISTORY OF THE CORPORATION SHOWS DOMINANCY
AND EXPLOITATION ON THE PART OF THE CLAIMANT.  FN21  IT IS ALSO REACHED
WHERE ON THE FACTS THE BANKRUPT HAS BEEN USED MERELY AS A CORPORATE
POCKET OF THE DOMINANT STOCKHOLDER, WHO, WITH DISREGARD OF THE
SUBSTANCE OR FORM OF CORPORATE MANAGEMENT, HAS TREATED ITS AFFAIRS AS
HIS OWN.  FN22  AND SO-CALLED LOANS OR ADVANCES BY THE DOMINANT OR
CONTROLLING STOCKHOLDER WILL BE SUBORDINATED TO CLAIMS OF OTHER
CREDITORS AND THUS TREATED IN EFFECT AS CAPITAL CONTRIBUTIONS BY THE
STOCKHOLDER NOT ONLY IN THE FOREGOING TYPES OF SITUATIONS BUT ALSO
WHERE THE PAID-IN CAPITAL IS PURELY NOMINAL, THE CAPITAL NECESSARY FOR
THE SCOPE AND MAGNITUDE OF THE OPERATIONS OF THE COMPANY BEING
FURNISHED BY THE STOCKHOLDER AS A LOAN.  FN23 

THOUGH DISALLOWANCE OF SUCH CLAIMS WILL BE ORDERED WHERE THEY ARE
FICTITIOUS OR A SHAM,  FN24 THESE CASES DO NOT TURN ON THE EXISTENCE OR
NON-EXISTENCE OF THE DEBT.  RATHER THEY INVOLVE SIMPLY THE QUESTION OF
ORDER OF PAYMENT.  FN25  AT TIMES EQUITY HAS ORDERED DISALLOWANCE OR
SUBORDINATION BY DISREGARDING THE CORPORATE ENTITY.  FN26  THAT IS TO
SAY, IT HAS TREATED THE DEBTOR-CORPORATION SIMPLY AS A PART OF THE
STOCKHOLDER'S OWN ENTERPRISE, CONSISTENTLY WITH THE COURSE OF CONDUCT
OF THE STOCKHOLDER.  BUT IN THAT SITUATION AS WELL AS IN THE OTHERS TO
WHICH WE HAVE REFERRED, A SUFFICIENT CONSIDERATION MAY BE SIMPLY THE
VIOLATION OF RULES OF FAIR PLAY AND GOOD CONSCIENCE BY THE CLAIMANT; A
BREACH OF THE FIDUCIARY STANDARDS OF CONDUCT WHICH HE OWES THE
CORPORATION, ITS STOCKHOLDERS AND CREDITORS.  HE WHO IS IN SUCH A
FIDUCIARY POSITION CANNOT SERVE HIMSELF FIRST AND HIS CESTUIS SECOND. 
HE CANNOT MANIPULATE THE AFFAIRS OF HIS CORPORATION TO THEIR DETRIMENT
AND IN DISREGARD OF THE STANDARDS OF COMMON DECENCY AND HONESTY.  HE
CANNOT BY THE INTERVENTION OF A CORPORATE ENTITY VIOLATE THE ANCIENT
PRECEPT AGAINST SERVING TWO MASTERS.  FN27  HE CANNOT BY THE USE OF THE
CORPORATE DEVICE AVAIL HIMSELF OF PRIVILEGES NORMALLY PERMITTED
OUTSIDERS IN A RACE OF CREDITORS.  HE CANNOT UTILIZE HIS INSIDE
INFORMATION AND HIS STRATEGIC POSITION FOR HIS OWN PREFERMENT.  HE
CANNOT VIOLATE RULES OF FAIR PLAY BY DOING INDIRECTLY THROUGH THE
CORPORATION WHAT HE COULD NOT DO DIRECTLY.  HE CANNOT USE HIS POWER FOR
HIS PERSONAL ADVANTAGE AND TO THE DETRIMENT OF THE STOCKHOLDERS AND
CREDITORS NO MATTER HOW ABSOLUTE IN TERMS THAT POWER MAY BE AND NO
MATTER HOW METICULOUS HE IS TO SATISFY TECHNICAL REQUIREMENTS.  FOR
THAT POWER IS AT ALL TIMES SUBJECT TO THE EQUITABLE LIMITATION THAT IT
MAY NOT BE EXERCISED FOR THE AGGRANDIZEMENT, PREFERENCE, OR ADVANTAGE
OF THE FIDUCIARY TO THE EXCLUSION OR DETRIMENT OF THE CESTUIS.  WHERE
THERE IS A VIOLATION OF THOSE PRINCIPLES, EQUITY WILL UNDO THE WRONG OR
INTERVENE TO PREVENT ITS CONSUMMATION. 

ON SUCH A TEST THE ACTION OF THE DISTRICT COURT IN DISALLOWING OR
SUBORDINATING LITTON'S CLAIM WAS CLEARLY CORRECT.  LITTON ALLOWED HIS
SALARY CLAIMS TO LIE DORMANT FOR YEARS AND SOUGHT TO ENFORCE THEM ONLY
WHEN HIS DEBTOR CORPORATION WAS IN FINANCIAL DIFFICULTY.  THEN HE USED
THEM SO THAT THE RIGHTS OF ANOTHER CREDITOR WERE IMPAIRED.  LITTON AS
AN INSIDER UTILIZED HIS STRATEGIC POSITION FOR HIS OWN PREFERMENT TO
THE DAMAGE OF PEPPER.  LITTON AS THE DOMINANT INFLUENCE OVER DIXIE
SPLINT COAL COMPANY USED HIS POWER NOT TO DEAL FAIRLY WITH THE
CREDITORS OF THAT COMPANY BUT TO MANIPULATE ITS AFFAIRS IN SUCH A
MANNER THAT WHEN ONE OF ITS CREDITORS CAME TO COLLECT HER JUST DEBT THE
BULK OF THE ASSETS HAD DISAPPEARED INTO ANOTHER LITTON COMPANY. 
LITTON, THOUGH A FIDUCIARY, WAS ENABLED BY ASTUTE LEGAL MANOEUVRING TO
ACQUIRE MOST OF THE ASSETS OF THE BANKRUPT NOT FOR CASH OR OTHER
CONSIDERATION OF VALUE TO CREDITORS BUT FOR BOOKKEEPING ENTRIES
REPRESENTING AT BEST MERELY LITTON'S APPRAISAL OF THE WORTH OF LITTON'S
SERVICES OVER THE YEARS. 

THIS ALONE WOULD BE A SUFFICIENT BASIS FOR THE EXERCISE BY THE
DISTRICT COURT OF ITS EQUITABLE POWERS IN DISALLOWING THE LITTON
CLAIM.  BUT WHEN THERE IS ADDED THE EXISTENCE OF A "PLANNED AND
FRAUDULENT SCHEME," AS FOUND BY THE DISTRICT COURT, THE NECESSITY OF
EQUITABLE RELIEF AGAINST THAT FRAUD BECOMES INSISTENT.  NO MATTER HOW
TECHNICALLY LEGAL EACH STEP IN THAT SCHEME MAY HAVE BEEN, ONCE ITS
BASIC NATURE WAS UNCOVERED IT WAS THE DUTY OF THE BANKRUPTCY COURT IN
THE EXERCISE OF ITS EQUITY JURISDICTION TO UNDO IT.  OTHERWISE, THE
FIDUCIARY DUTIES OF DOMINANT OR MANAGEMENT STOCKHOLDERS WOULD GO FOR
NAUGHT; EXPLOITATION WOULD BECOME A SUBSTITUTE FOR JUSTICE; AND EQUITY
WOULD BE PERVERTED AS AN INSTRUMENT FOR APPROVING WHAT IT WAS DESIGNED
TO THWART. 

THE FACT THAT LITTON PERFECTED HIS LIEN MORE THAN FOUR MONTHS
PRECEDING BANKRUPTCY IS NO OBSTACLE TO EQUITABLE RELIEF.  IN THE FIRST
PLACE, THAT LIEN WAS BUT A STEP IN A GENERAL FRAUDULENT PLAN WHICH MUST
BE VIEWED IN ITS ENTIRETY.  THE SUBSEQUENT SALE CANNOT BE TAKEN AS AN
ISOLATED STEP UNCONNECTED WITH THE LONG ANTECEDENT EVENTS, ALL DESIGNED
TO DEFEAT CREDITORS.  BUFFUM V. PETER BARCELOUX CO., 289 U.S. 227, 232
233.  IN THE SECOND PLACE, LITTON IS SEEKING APPROVAL BY THE BANKRUPTCY
COURT OF HIS CLAIM.  THE FOUR MONTHS' PROVISION OF THE BANKRUPTCY ACT
IS CERTAINLY NOT A STATUTORY LIMITATION ON EQUITABLE DEFENSES ARISING
OUT OF A BREACH OF FIDUCIARY DUTIES BY HIM WHO SEEKS ALLOWANCE OF A
CLAIM. 

IN VIEW OF THESE CONSIDERATIONS WE DO NOT HAVE OCCASION TO DETERMINE
THE LEGITIMACY OF THE "ONE-MAN" CORPORATION AS A BULWARK AGAINST THE
CLAIMS OF CREDITORS.  FN28 

ACCORDINGLY THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED
AND THAT OF THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  DURING THIS LITIGATION A. P. PEPPER, THE PLAINTIFF, DIED AND THE
SUIT WAS CONTINUED IN THE NAME OF JEAN MCNEIL PEPPER, AS HIS
EXECUTRIX. 

FN2  PLAINTIFF, HOWEVER, DID APPEAL ON CERTAIN PHASES OF THE CASE. 
SEE PEPPER V. DIXIE SPLINT COAL CO., 165 VA. 179; 181 S.E. 406. 

FN3  THE RESOLUTION OF THE BOARD OF DIRECTORS OF THIS NEW COMPANY
CERTIFIED THAT IN THEIR OPINION THE PROPERTY "FORMERLY OWNED BY DIXIE
SPLINT COAL COMPANY AND NOW OWNED BY SCOTT LITTON IS WORTH $20,135.36
IN CURRENT MONEY OF THE UNITED STATES AND WE FIX THE VALUE OF THE SAME
AT THIS SUM, WHICH IS TO BE PAID FOR IN STOCK." 

FN4  AT THE FIRST MEETING OF CREDITORS HELD ON SEPTEMBER 26, 1934,
THE STRATEGIC POSITION OF LITTON WAS FURTHER IMPROVED BY TWO OTHER
EVENTS WHICH LATER THE DISTRICT COURT QUITE PROPERLY DENOUNCED.  IN THE
FIRST PLACE, P. H. SMITH, SECRETARY AND TREASURER OF DIXIE SPLINT COAL
COMPANY AND THE ONE WHO HAD CAUSED THE ENTRY OF THE LITTON JUDGMENT ON
JUNE 2, 1933, BY CONFESSION AGAINST THE COMPANY, WAS ELECTED TRUSTEE. 
IN THE SECOND PLACE, SMITH WAS AUTHORIZED TO EMPLOY, AND DID IN FACT
EMPLOY, AS ATTORNEY FOR THE TRUSTEE, ONE I. M. QUILLEN.  QUILLEN, OR
HIS FIRM, WAS ATTORNEY FOR DIXIE SPLINT COAL COMPANY.  AS SUCH HE OR
HIS FIRM HAD PREPARED AND FILED THE PETITION IN BANKRUPTCY FOR THE
COMPANY.  AND HE APPEARED AT THE FIRST MEETING OF CREDITORS AS COUNSEL
FOR THE BANKRUPT AND YET AT THAT TIME, AS ATTORNEY FOR LITTON, FILED
THE CLAIM OF LITTON FOR $33,468.89 AS A PREFERRED OR SECURED CLAIM. 
AND AT THE TIME THESE APPOINTMENTS WERE MADE THE CONTROVERSY BETWEEN
PEPPER AND LITTON OVER THE LATTER'S JUDGMENT WAS KNOWN AND RECOGNIZED,
ALTHOUGH FORMAL PROOF OF THE PEPPER CLAIM WAS NOT FILED UNTIL NOVEMBER
8, 1934.  THE GRAVE IMPROPRIETY OF THESE APPOINTMENTS BECAME STRIKING
AS ADMINISTRATION OF THE ESTATE WAS COMMENCED. 

ON OCTOBER 6, 1934, PEPPER MOVED IN HER STATE COURT ACTION TO QUASH
ALL EXECUTION ISSUED AND OUTSTANDING ON THE LITTON JUDGMENT.  QUILLEN,
ATTORNEY FOR THE BANKRUPTCY TRUSTEE, APPEARED IN OPPOSITION TO THE
MOTION, ACTING AS ATTORNEY FOR LITTON, AND CONTENDED THAT THE
INTERVENTION OF BANKRUPTCY HAD DEPRIVED THE STATE COURT OF
JURISDICTION.  THE STATE COURT RESERVED DECISION.  ON OCTOBER 15, 1934,
PEPPER PETITIONED THE REFEREE TO DIRECT THE TRUSTEE TO CONTEST THE
LITTON JUDGMENT IN THE STATE COURT PROCEEDING.  QUILLEN, STATING THAT
HE ACTED AS ATTORNEY FOR LITTON, OPPOSED THE PETITION.  AFTER SOME
DELAY, NEW COUNSEL FOR THE TRUSTEE WERE OBTAINED WHO SOON ASKED THE
COURT FOR AUTHORITY TO INSTITUTE A NEW AND INDEPENDENT SUIT IN THE
STATE COURT TO HAVE THE LITTON JUDGMENT DECLARED VOID.  THIS AUTHORITY
WAS GRANTED. 

THE DISTRICT COURT, THOUGH CONDEMNING SUCH STEPS, STATED IT DID NOT
SUGGEST THAT SMITH AND QUILLEN WERE ACTING "WITH ANY FRAUDULENT PLAN OR
INTENTION OF UTILIZING THEIR POSITIONS IN AID OF LITTON AND TO THE
DETRIMENT OF THE ESTATE."  YET HE DENOUNCED THE IMPROPRIETY OF SUCH
CONDUCT AND EMPHASIZED THE INCOMPATIBLE AND CONFLICTING POSITIONS WHICH
THESE PERSONS OCCUPIED.  ON THE PROFESSIONAL ETHICS OF THE CONDUCT OF
QUILLEN, THE DISTRICT COURT APTLY OBSERVED:  "IT IS GENERALLY ACCEPTED
THAT AN ATTORNEY FOR THE BANKRUPT SHOULD NOT BE CHOSEN ATTORNEY FOR THE
TRUSTEE IN ANY CASE.  AND IT IS EVEN MORE EVIDENT THAT AN ATTORNEY WHO
REPRESENTS A CREDITOR WHOSE CLAIM IS UNDER ATTACK SHOULD NOT BE CHOSEN
AS ATTORNEY FOR THE TRUSTEE WHO, ON BEHALF OF OTHER CREDITORS, IS
CHARGED WITH THE DUTY OF MAKING THAT ATTACK." 

FN5  THIS CONCLUSION WAS BASED ON THE HISTORY AND NATURE OF THE
CLAIMS FOR SALARY.  LITTON'S ALLEGED CLAIM OF $33,468.89 REPRESENTED
$7,427.25 OWED LITTON AND $26,041.64 OWED P. H. SMITH WHICH THE LATTER
HAD ASSIGNED TO LITTON FOR $1 AND "OTHER CONSIDERATIONS" WHICH LITTON
WAS UNABLE TO RECALL.  AS WE HAVE NOTED, THESE CLAIMS DATE BACK OVER A
NUMBER OF YEARS.  THE REGULAR SALARIES PAID LITTON AND SMITH WERE
ENTERED ON THE CORPORATION'S BOOKS UNDER A "PAYROLL" ACCOUNT; THE
SALARY CLAIMS HERE IN QUESTION WERE CARRIED UNDER SEPARATE ACCOUNTS,
"P. H. SMITH - PERSONAL" AND "SCOTT LITTON - PERSONAL."  NO SUMS WERE
PAID SMITH FROM THAT PERSONAL ACCOUNT.  THE DISTRICT COURT CONCLUDED
THAT IT WAS HARD TO BELIEVE THAT SMITH, A BOOKKEEPER AND CLERK, WHO HAD
BEEN PAID $2,700 A YEAR, SHOULD, WITH NO CHANGE IN THE NATURE OF HIS
WORK, RECEIVE A SUDDEN INCREASE IN SALARY TO $8,000 A YEAR, EXCEPT UPON
AN UNDERSTANDING THAT IT WAS MERELY FOR RECORD PURPOSES AND NOT TO BE
PAID.  THIS CONCLUSION WAS STRENGTHENED BY THE FACT THAT THE $26,041.64
ACCUMULATED FOR OVER FIVE YEARS WITH NO EFFORT ON SMITH'S PART TO
COLLECT IT AND BY THE FACT THAT SHORTLY BEFORE BANKRUPTCY HE ASSIGNED
THE CLAIM TO LITTON FOR A NOMINAL CONSIDERATION.  AS TO THE $7,427.25
ALLEGED TO BE OWED LITTON THE COURT LIKEWISE CONCLUDED THAT IT HAD BEEN
ENTERED ON THE BOOKS FOR INCOME TAX PURPOSES AND WAS NOT A "BONA FIDE
OBLIGATION" OF THE COMPANY.  FURTHERMORE, A SUBSTANTIAL PART OF THESE
CLAIMS WAS BARRED BY THE STATUTE OF LIMITATIONS.  ON THE MOST TOLERANT
ASSUMPTION THAT COULD BE MADE, ACCORDING TO THE COURT, THE SALARIES
CREDITED TO LITTON AND SMITH WERE MERELY CONTINGENT OR CONDITIONAL
OBLIGATIONS NOT PROVABLE SINCE THEY WERE INTENDED TO BE PAID ONLY
WHENEVER THE PROFITS OF THE COMPANY PERMITTED.  HENCE THEY WERE NOT
FIXED LIABILITIES ABSOLUTELY OWING.  SEE SEC. 63(A)(1). 

FN6  IT SHOULD BE NOTED THAT THERE IS AUTHORITY FOR THE CONCLUSION
THAT THE TRUSTEE IS NOT NECESSARILY PRECLUDED FROM QUESTIONING A
JUDGMENT IN THE BANKRUPTCY PROCEEDINGS MERELY BECAUSE HE ATTACKED IT IN
A STATE COURT PROCEEDING, WHERE THE STATE COURT DID NOT PASS UPON THE
VALIDITY OF THE UNDERLYING CLAIM.  IN RE JAMES A. BRADY FOUNDRY CO., 3
F.2D 437; GILBERT'S COLLIER ON BANKRUPTCY (4TH ED.)  SEC.  1247. 

FN7  SEC. 2(2).  THE SECTIONS ARE CITED AS THEY WERE AT THE TIME OF
THE BANKRUPTCY IN THIS CASE.  BUT THE AMENDMENTS MADE BY THE CHANDLER
ACT (52 STAT. 840), APPROVED JUNE 22, 1938, ARE NOT MATERIAL SO FAR AS
THE ISSUES HERE INVOLVED ARE CONCERNED. 

FN8  SEC. 2(7). 

FN9 SEC. 57(K). 

FN10  SEC. 2(15). 

FN11  THUS THE BANKRUPTCY COURT HAS BEEN HELD TO HAVE JURISDICTION
OVER A SUPPLEMENTAL AND ANCILLARY BILL TO ENJOIN A CREDITOR, AFTER
ADJUDICATION AND DISCHARGE OF THE BANKRUPT, FROM PROSECUTING HIS CLAIM
IN A STATE COURT.  LOCAL LOAN CO. V. HUNT, SUPRA.  AS A COURT IN EQUITY
IT HAS BEEN HELD TO HAVE THE POWER TO PROTECT THE BANKRUPT ESTATE
AGAINST A FRAUDULENT ASSESSMENT, CROSS V. GEORGIA IRON & COAL CO., 250
F. 438; TO COMPEL EXECUTION OF A DEED TO MAKE THE BANKRUPT'S EQUITABLE
TITLE A COMPLETE LEGAL TITLE, DEARBORN ELECTRIC LIGHT & POWER CO. V.
JONES, 299 F. 432; TO RECOVER ASSETS OF THE ESTATE WHICH HAVE BEEN USED
TO PAY DIVIDENDS UNDER A COMPOSITION ORDER LATER REVERSED, IN RE LILY
KNIT SILK UNDERWEAR CO., 73 F.2D 52.  AND EVEN THOUGH THE ACT PROVIDES
THAT CLAIMS SHALL NOT BE PROVED AGAINST A BANKRUPT ESTATE SUBSEQUENT TO
SIX MONTHS AFTER THE ADJUDICATION, THE BANKRUPTCY COURT IN THE EXERCISE
OF ITS EQUITABLE JURISDICTION HAS POWER TO PERMIT CLAIMS TO BE PROVED
THEREAFTER IN ORDER TO PREVENT A FRAUD OR AN INJUSTICE.  WILLIAMS V.
RICE, 30 F.2D 814; IN RE PIERSON, 174 F. 160; LARSON V. FIRST STATE
BANK, SUPRA; BURTON COAL CO. V. FRANKLIN COAL CO., 67 F.2D 796. 

FN12  SECTION 57(K) PROVIDES:  "CLAIMS WHICH HAVE BEEN ALLOWED MAY BE
RECONSIDERED FOR CAUSE AND REALLOWED OR REJECTED IN WHOLE OR IN PART,
ACCORDING TO THE EQUITIES OF THE CASE, BEFORE BUT NOT AFTER THE ESTATE
HAS BEEN CLOSED." 

FN13  CHANDLER V. THOMPSON, 120 F. 940; IN RE THOMPSON, 276 F. 313;
IN RE CONTINENTAL ENGINE CO., 234 F. 58.  THIS IS OF COURSE IN ABSENCE
OF A PLEA OF RES JUDICATA. 

FN14  THIS COURT SAID IN TWIN-LICK OIL CO. V. MARBURY, SUPRA, P. 590:
"SO, WHEN THE LENDER IS A DIRECTOR, CHARGED, WITH OTHERS, WITH THE
CONTROL AND MANAGEMENT OF THE AFFAIRS OF THE CORPORATION, REPRESENTING
IN THIS REGARD THE AGGREGATED INTEREST OF ALL THE STOCKHOLDERS, HIS
OBLIGATION, IF HE BECOMES A PARTY TO A CONTRACT WITH THE COMPANY, TO
CANDOR AND FAIR DEALING, IS INCREASED IN THE PRECISE DEGREE THAT HIS
REPRESENTATIVE CHARACTER HAS GIVEN HIM POWER AND CONTROL DERIVED FROM
THE CONFIDENCE REPOSED IN HIM BY THE STOCKHOLDERS WHO APPOINTED HIM
THEIR AGENT.  IF HE SHOULD BE A SOLE DIRECTOR, OR ONE OF A SMALLER
NUMBER VESTED WITH CERTAIN POWERS, THIS OBLIGATION WOULD BE STILL
STRONGER, AND HIS ACTS SUBJECT TO MORE SEVERE SCRUTINY, AND THEIR
VALIDITY DETERMINED BY MORE RIGID PRINCIPLES OF MORALITY, AND FREEDOM
FROM MOTIVES OF SELFISHNESS." 

FN15  CONVERSE V. UNITED SHOE MACHINERY CO., 209 MASS. 539; 95 N.E.
929.  DAVENPORT V. DOWS, 18 WALL.  626.  IT IS ALSO CLEAR THAT BREACH
OF THAT FIDUCIARY DUTY MAY ALSO GIVE RISE TO DIRECT ACTIONS BY
STOCKHOLDERS IN THEIR OWN RIGHT.  STRONG V. REPIDE, 213 U.S. 419.  CF.
GREEN V. VICTOR TALKING MACHINE CO., 24 F.2D 378. 

FN16  SEC. 70(A)(6); MANNING V. CAMPBELL, 264 MASS. 386; 162 N.E.
770; STEPHAN V. MERCHANTS COLLATERAL CORP., 256 N.Y. 418; 176 N.E. 824;
DEAN V. SHINGLE, 198 CAL. 652; 246 P. 1049. 

FN17  SEE WYMAN V. BOWMAN, 127 F. 257, 274; BURNES V. BURNES, 137 F.
781; TEXAS AUTO CO. V. ARBETTER, 1 S.W.2D 334, 339; MCCANDLESS V.
FURLAUD, 296 U.S. 140; JACKSON V. LUDELING, SUPRA, PP. 624 ET SEQ. 

FN18  THUS IN NATIONAL CASH REGISTER CO. V. DALLEN, 76 F.2D 867, THE
BANKRUPT, PRIOR TO BANKRUPTCY, TURNED IN TO PETITIONER AN OLD CASH
REGISTER AS A CREDIT ON ACCOUNT OF THE PURCHASE OF A NEW ONE.  PENDING
DELIVERY OF THE NEW MACHINE, PETITIONER LOANED THE BANKRUPT ANOTHER ONE
AND AFTER THE BANKRUPTCY ADJUDICATION SOUGHT TO RECLAIM THE LOANED
MACHINE.  THE COURT AFFIRMED AN ORDER OF THE DISTRICT COURT ALLOWING
THE RECLAMATION ON CONDITION THAT PETITIONER FIRST DELIVER TO THE
BANKRUPT THE OLD MACHINE OR PAY THE AMOUNT OF ITS AGREED VALUE.  THE
COURT SAID, P. 868, "WE DO NOT THINK IT NECESSARY TO DETERMINE WHETHER
THE CONTRACT FOR THE PURCHASE OF THE NEW CASH REGISTER AMOUNTED TO A
BAILMENT LEASE OR A CONDITIONAL SALE.  BANKRUPTCY COURTS MAY APPLY
RULES REGULATING EQUITABLE ACTIONS." 

FN19  IN RE BURNTSIDE LODGE, INC., 7 F.SUPP.  785.  IN THAT CASE THE
COURT SAID, P. 787: 

"THE RELATIONS OF A STOCKHOLDER TO A CORPORATION AND TO THE PUBLIC
REQUIRE GOOD FAITH AND FAIR DEALING IN EVERY TRANSACTION BETWEEN THE
STOCKHOLDER AND THE CORPORATION WHICH MAY INJURIOUSLY AFFECT THE RIGHTS
OF CREDITORS AND THE GENERAL PUBLIC, AND A CAREFUL EXAMINATION WILL BE
MADE INTO ALL SUCH TRANSACTIONS IN THE INTERESTS OF CREDITORS. 

     .         .         .   .         . 

"IF THE BUSINESS HAD NOT BEEN INCORPORATED AND THE COOKS HAD
CONDUCTED THE ENTERPRISE PERSONALLY, THEY WOULD NOT HAVE BEEN ALLOWED
COMPENSATION FOR SERVICES IN THE EVENT OF BANKRUPTCY, AND THERE IS NO
COGENT REASON WHY THEY SHOULD BE PAID WHEN THE SAME SERVICE IS RENDERED
AS AN OFFICER AND MANAGER OF A CORPORATION OF THEIR OWN CREATION AND TO
SERVE THEIR OWN INTERESTS.  TO ALLOW CLAIMS UNDER SUCH CIRCUMSTANCES IN
EFFECT WOULD PERMIT BANKRUPTS TO COLLECT ON CLAIMS AGAINST THEIR OWN
BANKRUPT ESTATE.  IT WOULD GIVE EFFECT TO FORM RATHER THAN TO
SUBSTANCE, TO THE LETTER OF THE LAW RATHER THAN THE SPIRIT AND PURPOSE
OF IT." 

FN20  IN RE WENATCHEE-STRATFORD ORCHARD CO., 205 F. 964. 

FN21  IN RE MCCARTHY PORTABLE ELEVATOR CO., 196 F. 247, AFF'D 201 F.
923. 

FN22  IN RE CHAS. K. HORTON, INC., 22 F.SUPP.  905; IN RE KENTUCKY
WAGON MFG. CO., 71 F.2D 802; FORBUSH CO. V. BARTLEY, 78 F.2D 805; CLERE
CLOTHING CO. V. UNION TRUST & SAVINGS BANK, 224 F. 363. 

FN23  ALBERT RICHARDS CO. V. MAYFAIR, INC., 287 MASS. 280; 191 N.E.
430.  CF. ERICKSON V. MINNESOTA & ONTARIO POWER CO., 134 MINN. 209; 158
N.W. 979; ORIENTAL INVESTMENT CO. V. BARCLAY, 64 S.W. 80(TEX.  CIV. 
APP.); JOSEPH R. FOARD CO. V. STATE, 219 F. 827. 

FN24  NEW YORK TRUST CO. V. ISLAND OIL & TRANSPORT CORP., 34 F.2D
655; IN RE H. HICKS & SON, INC., 82 F.2D 277. 

FN25  SEE COMMENT IN 45 YALE L. JOURN.  1471. 

FN26  IN RE OTSEGO WAXED PAPER CO., 14 F.SUPP.  15.  THE COURT SAID,
P. 16, "THE APPLICABLE PRINCIPLE IS THAT, WHERE A CORPORATION IS SO
ORGANIZED AND CONTROLLED AS TO MAKE IT A MERE INSTRUMENTALITY OR
ADJUNCT OF ANOTHER, AND THE SUBSIDIARY BECOMES BANKRUPT, THE PARENT
CORPORATION CANNOT HAVE ITS CLAIM PAID UNTIL ALL OTHER CLAIMS ARE FIRST
SATISFIED."  SEE ALSO HUNTER V. BAKER MOTOR VEHICLE CO., 225 F. 1006;
HENRY V. DOLLEY, 99 F.2D 94. 

THE SAME RESULT HAS BEEN REACHED IN EQUITY RECEIVERSHIPS.  CENTRAL
VERMONT RY. CO. V. SOUTHERN NEW ENGLAND R. CORP., 1 F.SUPP.  1004,
AFF'D 68 F.2D 460; S.G.V. CO. V. S.G.V. CO., 264 PA. 265; 107 A. 721. 

A FORTIORI THAT RESULT IS REACHED WHERE THERE IS A FRAUDULENT
PURPOSE.  E.E. GRAY CORP. V. MEEHAN, 54 F.2D 223. 

FN27  SEE ALEXANDER V. THELEMAN, 69 F.2D 610, 613. 

FN28  ON THIS POINT THE DISTRICT COURT SAID:  "AN EXAMINATION OF THE
FACTS DISCLOSED HERE SHOWS THE HISTORY OF A DELIBERATE AND CAREFULLY
PLANNED ATTEMPT ON THE PART OF SCOTT LITTON AND DIXIE SPLINT COAL
COMPANY TO AVOID THE PAYMENT OF A JUST DEBT.  I SPEAK OF LITTON AND
DIXIE SPLINT COAL COMPANY BECAUSE THEY ARE IN REALITY THE SAME.  IN ALL
THE EXPERIENCE OF THE LAW, THERE HAS NEVER BEEN A MORE PROLIFIC BREEDER
OF FRAUD THAN THE ONE-MAN CORPORATION.  IT IS A FAVORITE DEVICE FOR THE
ESCAPE OF PERSONAL LIABILITY.  THIS CASE ILLUSTRATES ANOTHER FREQUENT
USE OF THIS FICTION OF CORPORATE ENTITY, WHEREBY THE OWNER OF THE
CORPORATION, THROUGH HIS COMPLETE CONTROL OVER IT, UNDERTAKES TO GATHER
TO HIMSELF ALL OF ITS ASSETS TO THE EXCLUSION OF ITS CREDITORS." 
..END :






















PEARSON V. MCGRAW, 308 U.S. 313 


NO. 69.  ARGUED NOVEMBER 15, 16, 1939.  - DECIDED DECEMBER 4, 1939.  -
161 ORE.  1 - 86 P.2D 424 - 87 P.2D 766, REVERSED. 


A RESIDENT OF OREGON, OWNING BONDS IN ILLINOIS, HELD FOR HIM BY A
TRUST COMPANY ACTING AS CUSTODIAN AND FINANCIAL AGENT, AND HAVING ALSO
A CHECKING ACCOUNT WITH THE COMPANY, DIRECTED THE COMPANY TO RAISE A
SPECIFIED SUM OF MONEY BY SALE OF BONDS IN ITS HANDS AND BY USE OF HIS
CASH BALANCE, AND TO APPLY THAT SUM TO THE PURCHASE OF AN EQUAL AMOUNT
IN FEDERAL RESERVE NOTES.  WHEN THIS HAD BEEN DONE, AND THE TRUST
COMPANY HAD HELD THE NOTES FOR A FEW DAYS, HE EXECUTED IN OREGON AN
INSTRUMENT BY WHICH, IN CONTEMPLATION OF DEATH, HE MADE A TRANSFER OF
THE NOTES TO THE TRUST COMPANY, AS TRUSTEE FOR DESIGNATED
BENEFICIARIES, RESERVING TO HIMSELF NO INTEREST AND NO POWER OF
REVOCATION.  THEREAFTER, THE TRUST COMPANY HELD THE NOTES UNDER THE
TRUST AGREEMENT FOR SEVERAL DAYS, AND THEN USED THEM FROM TIME TO TIME
TO PURCHASE BONDS FOR THE ACCOUNT OF THE TRUST.  ITS ORIGINAL
ENGAGEMENT AS CUSTODIAN AND AGENT ANTEDATED THE SETTLOR'S DOMICILE IN
OREGON, AND NONE OF THE SECURITIES HANDLED BY THE COMPANY WERE EVER
PHYSICALLY PRESENT IN THAT STATE.  HELD, THAT THE SALE OF THE BONDS,
THE PURCHASE OF THE NOTES, AND THEIR TRANSFER TO THE TRUSTEE
CONSTITUTED AN INTEGRATED AND INDIVISIBLE TRANSACTION EFFECTING A
TRANSFER OF INTANGIBLES IN CONTEMPLATION OF DEATH; AND THAT, WHATEVER
THE NATURE OF THE FEDERAL RESERVE NOTES - WHETHER TANGIBLE OR
INTANGIBLE PROPERTY - A TAX UPON THIS TRANSFER BY THE STATE OF OREGON
WOULD NOT CONTRAVENE THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  CURRY V. MCCANLESS, 307 U.S. 357.  P. 317. 

PEARSON, STATE TREASURER OF THE STATE OF OREGON, V. MCGRAW ET AL.,
EXECUTORS. 

CERTIORARI TO THE SUPREME COURT OF OREGON. 

CERTIORARI, POST, P. 531, TO REVIEW A JUDGMENT WHICH REVERSED IN PART
AN ORDER OF THE CIRCUIT COURT OF OREGON IN PROBATE, DETERMINING AN
INHERITANCE TAX. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

HAYES, RESPONDENTS' DECEDENT, DIED TESTATE IN 1936 AND WAS AT THE
TIME OF HIS DEATH A RESIDENT OF AND DOMICILED IN OREGON.  IN EARLIER
YEARS WHEN HE HAD RESIDED IN THE MIDDLE WEST HE PLACED IN POSSESSION OF
AN ILLINOIS TRUST COMPANY VARIOUS STOCKS, BONDS AND OTHER INTANGIBLES,
WHICH TRUST COMPANY ACTED AS HIS AGENT IN COLLECTING PRINCIPAL AND
INCOME ON THOSE SECURITIES AND IN THE INVESTMENT OF HIS FUNDS.  WHEN
DECEDENT ESTABLISHED A DOMICILE IN OREGON IN 1933, HE CONTINUED THAT
ARRANGEMENT WITH THE ILLINOIS TRUST COMPANY, WITH THE RESULT THAT THOSE
SECURITIES WERE ALWAYS PHYSICALLY PRESENT IN ILLINOIS, NEVER IN
OREGON.  AUGUST 8, 1935, ABOUT SIX MONTHS BEFORE DECEDENT'S DEATH, HE
DIRECTED THE ILLINOIS TRUST COMPANY TO SELL AND LIQUIDATE SUFFICIENT OF
HIS BONDS HELD UNDER THAT AGENCY ARRANGEMENT IN ILLINOIS TO PROCURE A
SUM WHICH, TOGETHER WITH CASH BALANCES IN HIS CHECKING ACCOUNT WITH THE
TRUST COMPANY, WOULD EQUAL $450,000 AND TO PURCHASE THEREWITH, AS HIS
AGENT, FEDERAL RESERVE NOTES OF THE FACE AMOUNT OF $450,000.  BETWEEN
AUGUST 8, 1935 AND AUGUST 12, 1935, THE ILLINOIS TRUST COMPANY COMPLIED
WITH DECEDENT'S DIRECTIONS  FN1  AND PRIOR TO AUGUST 15, 1935, IT
PURCHASED $450,000 OF FEDERAL RESERVE NOTES AND HELD THEM IN ILLINOIS
AS AGENT FOR DECEDENT FOR A FEW DAYS. 

ON AUGUST 15, 1935, DECEDENT EXECUTED IN OREGON A TRUST AGREEMENT
UNDER WHICH THE ILLINOIS TRUST COMPANY WAS DESIGNATED AS TRUSTEE AND BY
WHICH DECEDENT TRANSFERRED TO IT AS TRUSTEE THE FEDERAL RESERVE NOTES. 
THAT TRUST WAS FOR THE BENEFIT OF CERTAIN DESIGNATED RELATIVES AND WAS
IRREVOCABLE.  UNDER IT DECEDENT RETAINED NO INTEREST OR POWER
WHATSOEVER.  THE TRUST COMPANY HELD THOSE FEDERAL RESERVE NOTES UNDER
THE TRUST AGREEMENT FOR ABOUT FIVE DAYS.  THEN FROM TIME TO TIME AFTER
AUGUST 19, 1935, THE ILLINOIS TRUST COMPANY USED THE FEDERAL RESERVE
NOTES, PURSUANT TO THE TERMS OF THE TRUST AGREEMENT, TO PURCHASE BONDS
AND OTHER PERSONAL PROPERTY FOR THE ACCOUNT OF THE TRUST.  FN2 

ADMITTEDLY, OREGON HAD JURISDICTION TO TAX BUT FOR THE ALLEGED
PROHIBITION IN THE FOURTEENTH AMENDMENT, FOR THE STATUTE IN QUESTION
IMPOSED A TAX ON INTANGIBLES AS WELL AS TANGIBLES WHICH PASSED BY DEED
OR GIFT MADE IN CONTEMPLATION OF THE DEATH OF THE GRANTOR.  FN3  BUT
THE SUPREME COURT OF OREGON HELD THAT THAT CONSTITUTIONAL PROHIBITION
WAS PRESENT SINCE NEITHER THE SECURITIES OR CASH USED TO PURCHASE THE
FEDERAL RESERVE NOTES NOR THE NOTES THEMSELVES WERE EVER IN OREGON BUT
ALWAYS IN ILLINOIS.  THOUGH ADMITTING THAT INTANGIBLES WOULD HAVE BEEN
TAXABLE BY OREGON UNDER SUCH CIRCUMSTANCES, THE COURT IN RELIANCE ON
BLODGETT V. SILBERMAN, 277 U.S. 1, CONCLUDED THAT THE FEDERAL RESERVE
NOTES WERE TANGIBLES.  AND SINCE DECEDENT HAD RETAINED THEM IN ILLINOIS
FOR A FEW DAYS PRIOR TO AUGUST 15, 1935, WITHOUT ANY INTENTION OF
BRINGING THEM TO OREGON, THEY HAD ACQUIRED A SO-CALLED BUSINESS SITUS
IN ILLINOIS WHICH CONSTITUTIONALLY PREVENTED OREGON FROM EXACTING A TAX
FOR THEIR TRANSFER.  FN4  AND THIS CONCLUSION WAS REACHED THOUGH
ADMITTEDLY THE TRANSFER OF THE NOTES UNDER THE AGREEMENT OF AUGUST 15,
1935, WAS MADE IN CONTEMPLATION OF DEATH.  WE GRANTED CERTIORARI
BECAUSE OF THE IMPORTANCE OF THE CONSTITUTIONAL QUESTION INVOLVED AND
OF AN ALLEGED PROBABLE CONFLICT WITH THE PRINCIPLES UNDERLYING SUCH
DECISIONS AS CURRY V. MCCANLESS, 307 U.S. 357. 

WE DISAGREE WITH THE CONCLUSION OF THE SUPREME COURT OF OREGON. 
OREGON HAVING JURISDICTION TO TAX BY REASON OF THE STATUTE WAS NOT
DEPRIVED OF IT BY THE FEDERAL CONSTITUTION. 

ON THE FACTS OF THIS CASE WE BELIEVE THAT THE VARIOUS STEPS IN THE
SERIES MUST BE CONSIDERED AS CONSTITUTING BUT ONE INTEGRATED AND
INDIVISIBLE TRANSACTION - A TRANSFER BY DECEDENT OF INTANGIBLES IN
CONTEMPLATION OF DEATH.  AND WE REACH THIS RESULT THOUGH EACH STEP IN
THE SERIES WAS REAL AND THOUGH NONE WAS CAMOUFLAGED OR CONCEALED.  FOR
BASICALLY THE SALE OF INTANGIBLES, THE ACQUISITION OF FEDERAL RESERVE
NOTES, AND THEIR TRANSFER UNDER THE AGREEMENT OF AUGUST 15, 1935, WERE
INTERDEPENDENT.  CF. GROMAN V. COMMISSIONER OF INTERNAL REVENUE, 302
U.S. 82; HELVERING V. BASHFORD, 302 U.S. 454, 458.  FROM DECEDENT'S
POINT OF VIEW, COMPLETION OF THE SERIES OF STEPS WAS NECESSARY FOR
CONSUMMATION OF HIS PROGRAM TO UTILIZE $450,000 OF HIS ESTATE TO
PROVIDE FOR CERTAIN DESIGNATED MEMBERS OF HIS FAMILY.  FN5  ANY STEP
SHORT OF THE FINAL TRANSFER WOULD NOT HAVE DONE IT.  THE MERE SALE OF
THE INTANGIBLES AND THE ACQUISITION OF THE FEDERAL RESERVE NOTES HAD NO
FUNCTIONAL OR BUSINESS SIGNIFICANCE APART FROM THE AUGUST 15, 1935
TRANSFER.  THAT IS EMPHASIZED HERE BECAUSE THEY CREATED NO LEGAL
RELATIONS AND GAVE RISE TO NO VESTED RIGHTS INTERFERING WITH DECEDENT'S
CONTINUING POWER OF DISPOSITION.  TAKEN AS ISOLATED TRANSACTIONS, THEY
HAVE MEANING AND SIGNIFICANCE ONLY IN RELATION TO THE THIRD STEP, A
CONCLUSION MADE ESPECIALLY EVIDENT BY THE CLOSE SEQUENCE OF EVENTS. 
HENCE, IT IS NO ANSWER TO SAY THAT BECAUSE THE FIRST TWO STEPS WERE NOT
IRREVOCABLE BUT COULD BE RECALLED, THE THIRD STEP WAS NOT A NECESSARY
ONE IN THE SERIES.  FOR THAT IS AS IMMATERIAL AS IS THE REVOCABILITY OF
ANY DONOR'S PLAN TO MAKE A GIFT IN CONTEMPLATION OF DEATH AT ANY MOMENT
PRIOR TO ITS CONSUMMATION.  ADMITTEDLY DECEDENT HAD SUCH A PURPOSE ON
THE TRANSFER OF THE NOTES.  TO HOLD THAT SUCH PURPOSE WAS NOT PRESENT
ON THE SALE OF THE INTANGIBLES WOULD BE TO ISOLATE ONE PART OF THE
TOTAL TRANSACTION AND TO GIVE IT SIGNIFICANCE AND MEANING UTTERLY
INCONSISTENT WITH THE FACT THAT THE INTANGIBLES WERE SOLD FOR THE
PURPOSE OF ACQUIRING THE NOTES WHICH, IN TURN, WERE TO BE PLACED UNDER
AN IRREVOCABLE TRUST.  THEREFORE WE NEED NOT CONSIDER THE NATURE OF
FEDERAL RESERVE NOTES, FOR IN THAT POSTURE OF THE CASE THEIR TAXABILITY
AS SUCH AND IN ISOLATION FROM THE WHOLE TRANSACTION IS NOT IN ISSUE. 

HENCE TO HOLD THAT THERE IS A CONSTITUTIONAL BARRIER TO THE TAX
SOUGHT TO BE IMPOSED WOULD BE TO MAKE A FETISH OF FORM.  IT WOULD MAKE
THE PRINCIPLES OF THE DECISIONS OF THIS COURT ON THE CONSTITUTIONAL
POWER TO TAX DEVOID OF ANY REASON OR FUNCTION APART FROM A RITUAL OF
TAX AVOIDANCE.  CF. MINNESOTA TEA CO. V. HELVERING, 302 U.S. 609;
SHOTWELL V. MOORE, 129 U.S. 590.  QUESTIONS OF DUE PROCESS ARE NOT TO
BE TREATED "NARROWLY OR PEDANTICALLY, IN SLAVERY TO FORMS OR PHRASES." 
BURNET V. WELLS, 289 U.S. 670, 677-78. 

ACCORDINGLY, THE TRANSFER WAS TAXABLE ON THE AUTHORITY OF CURRY V.
MCCANLESS, SUPRA, AND RELATED CASES.  FOR CONSTITUTIONALLY THE PROPERTY
WAS "WITHIN THE JURISDICTION OF THE STATE" OF OREGON SINCE THAT
JURISDICTION IS DEPENDENT NOT ON THE PHYSICAL LOCATION OF THE PROPERTY
IN THE STATE BUT ON CONTROL OVER THE OWNER. 

THE JUDGMENT OF THE SUPREME COURT OF OREGON IS REVERSED AND THE CAUSE
IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED. 

FN1  ON THE SALE OF BONDS IN THE OPEN MARKET THE TRUST COMPANY
REALIZED FOR DECEDENT'S ACCOUNT $176,062.01.  ON AUGUST 12, 1935,
DECEDENT BORROWED FROM THE TRUST COMPANY ON A DEMAND NOTE $183,937.99. 
ON THAT DATE DECEDENT HAD A BALANCE IN HIS CHECKING ACCOUNT WITH THE
TRUST COMPANY IN EXCESS OF $90,000.  WITH THE FUNDS SO OBTAINED THE
TRUST COMPANY PURCHASED THE $450,000 OF FEDERAL RESERVE NOTES
MENTIONED.  BETWEEN AUGUST 12, 1935, AND AUGUST 29, 1935, THE TRUST
COMPANY, ON DIRECTIONS OF DECEDENT, SOLD IN THE OPEN MARKET ADDITIONAL
BONDS HELD BY IT IN THE AGENCY ACCOUNT AND AS PROCEEDS OF THOSE SALES
WERE RECEIVED BY IT, IT PAID OFF THE DEMAND NOTE.  THAT NOTE WAS
ENTIRELY PAID ON AUGUST 29, 1935. 

FN2  NONE OF THE PROPERTY THUS ACQUIRED BY THE TRUSTEE WAS EVER OWNED
BY DECEDENT; THE TRUSTEE DID NOT PURCHASE OR ACQUIRE ANY OF THE BONDS
OR OTHER ASSETS WHICH AT ANY TIME CONSTITUTED A PART OF THE PROPERTY
HELD BY THE TRUSTEE AS AGENT FOR DECEDENT UNDER THE EARLIER
ARRANGEMENT. 

FN3  "ALL PROPERTY WITHIN THE JURISDICTION OF THE STATE, AND ANY
INTEREST THEREIN, WHETHER BELONGING TO THE INHABITANTS OF THIS STATE OR
NOT, AND WHETHER TANGIBLE OR INTANGIBLE, WHICH SHALL PASS OR VEST  ...
BY DEED, GRANT, BARGAIN, SALE OR GIFT, OR AS AN ADVANCEMENT OR DIVISION
OF HIS OR HER ESTATE MADE IN CONTEMPLATION OF THE DEATH OF THE GRANTOR,
...  TO ANY PERSON OR PERSONS, ...  IN TRUST OR OTHERWISE,  ...  SHALL
BE AND IS SUBJECT TO TAX AT THE RATE HEREINAFTER SPECIFIED IN SECTION
10-603, TO BE PAID TO THE TREASURER OF THE STATE FOR THE USE OF THE
STATE; ...  " (SEC. 10-601, O.C. 1930.) 

FN4  86 P.2D 424, 87 P.2D 766.  IT SEEMS CLEAR THAT THE OREGON
SUPREME COURT REACHED THIS RESULT BY RELIANCE ON THE FOURTEENTH
AMENDMENT AND THE DECISIONS OF THIS COURT THEREUNDER.  WE DO NOT HAVE,
THEREFORE, A CASE WHERE THE STATE COURT WAS MERELY CONSTRUING ITS
STATUTE NOR A CASE WHERE IT IS NOT CLEAR WHETHER OR NOT IT WAS DOING
MORE THAN THAT.  CF. STATE TAX COMMISSION V. VAN COTT, 306 U.S. 511. 

FN5  THIS IS IN ACCORD WITH THE TREATMENT BY THE SUPREME COURT OF
OREGON OF "DR. HAYES' PLAN," A "PLAN" WHICH IT FELT COMPELLED TO DIVIDE
INTO SEPARATE STEPS BY REASON OF THE PRINCIPLES OF DECISIONS OF THIS
COURT DEALING WITH BUSINESS SITUS UNDER THE FOURTEENTH AMENDMENT.  CF.
PATTERSON V. ALABAMA, 294 U.S. 600. 

MR. JUSTICE MCREYNOLDS IS OF THE OPINION THAT THE JUDGMENT BELOW
SHOULD BE AFFIRMED. 

MR. JUSTICE STONE: 

I CONCUR IN THE JUDGMENT OF REVERSAL ON THE GROUND THAT NOTHING IN
THE CONSTITUTION PREVENTS TAXATION BY OREGON OF A GIFT BY ITS CITIZEN
OF FEDERAL RESERVE NOTES LOCATED ELSEWHERE. 

WHILE I DO NOT QUESTION THAT IN THE CIRCUMSTANCES OF THIS CASE A
STATE COULD, IF SO ADVISED, CONSTITUTIONALLY TAX ITS CITIZEN FOR ACTION
TAKEN FOR NO OTHER PURPOSE THAN THE EVASION OF ITS TAXING STATUTES, NO
SUCH QUESTION IS, I THINK, PRESENTED BY THE RECORD.  DISCUSSION OF IT
SEEMS AT MOST TO BE ACADEMIC AND NOT TO RELIEVE US OF THE DUTY OF
DECIDING THE ONLY FEDERAL QUESTION WHICH COULD BY ANY POSSIBILITY BE
SAID TO BE RAISED BY THE RECORD, NAMELY, WHETHER THE CONSTITUTION
PRECLUDES TAXATION OF THE GIFT OF THE BANKNOTES MERELY BECAUSE OF THE
PHYSICAL FACT THAT THEY ARE LOCATED WITHOUT THE STATE. 

IN ARRIVING AT THE CONCLUSION THAT THE GIFT OF FEDERAL RESERVE NOTES
LOCATED OUTSIDE THE STATE WAS NOT TAXABLE, THE SUPREME COURT OF OREGON
NECESSARILY CONSTRUED THE OREGON STATUTE, WHICH IMPOSES A TAX ON GIFTS
OF "ALL PROPERTY WITHIN THE JURISDICTION OF THE STATE  ...  WHETHER
TANGIBLE OR INTANGIBLE."  THE COURT HAS SAID THAT THE BANKNOTES WERE
NOT WITHIN THE JURISDICTION OF THE STATE BECAUSE THEIR SITUS WAS
ELSEWHERE, AND THAT THE ACTS OF DECEDENT IN AVOIDING THE TAX BY THE
ACQUISITION OF PROPERTY HAVING AN EXTRA-TERRITORIAL SITUS WERE NOT
REACHED FOR TAXATION BY STATE LAW.  IF THE COURT DID ANYTHING MORE THAN
RULE THAT THE STATUTE, BY ITS OWN TERMS, DID NOT EXTEND TO THE TAXATION
OF THE GIFT OF THE NOTES BECAUSE THEY WERE LOCATED OUTSIDE THE STATE,
IT HELD THAT THE FOURTEENTH AMENDMENT BECAUSE OF THAT PHYSICAL FACT
WITHHOLDS, FROM THE STATE, JURISDICTION OVER THE PROPERTY WHICH THE
TAXING STATUTE ASSERTS. 

PETITIONER ASKS US TO DETERMINE WHETHER THAT HOLDING IS CORRECT.  HE
IS ENTITLED TO HAVE AN ANSWER.  WE DO NOT RIGHTLY AVOID GIVING THE
ANSWER BY SAYING THAT, BY SOME STATUTE OTHER THAN THAT UNDER REVIEW,
THE STATE COULD CONSTITUTIONALLY TAX ITS CITIZEN FOR HIS ACTION IN
AVOIDING THE TAX, BY MAKING THE GIFT IN A FORM OF PROPERTY WHICH IS BY
HYPOTHESIS BEYOND THE TAXING POWER.  IF THE STATE HAS BY ITS STATUTE
UNDERTAKEN TO LAY A TAX ON GIFTS OF BANKNOTES OUTSIDE THE STATE WITHOUT
MORE - AND WE ARE WITHOUT JURISDICTION IF IT HAS NOT - NO PURPOSE IS
SERVED BY SAYING TO THE STATE THAT IT COULD HAVE REACHED THE SAME
RESULT BY ANOTHER ROUTE, WHICH, UNDER ITS LAWS, DOES NOT APPEAR TO BE
OPEN TO IT. 

AS I AM OF OPINION THAT THERE IS NOTHING IN THE CONSTITUTION TO
COMPEL A STATE TO TREAT FEDERAL RESERVE NOTES FOR TAX PURPOSES AS
CHATTELS WERE TREATED IN FRICK V. PENNSYLVANIA, 268 U.S. 473, AND AS NO
REASON HAS BEEN ADVANCED, EVEN IN BLODGETT V. SILBERMAN, 277 U.S. 1,
18, FOR A DIFFERENT VIEW, CF. BALDWIN V. MISSOURI, 281 U.S. 586, 591,
THE JUDGMENT SHOULD, I THINK, BE REVERSED UPON THAT GROUND RATHER THAN
UPON A THEORY OF PERMISSIBLE LEGISLATION, OF WHICH APPARENTLY OREGON'S
TAX LAWS DO NOT AVAIL. 

MR. JUSTICE FRANKFURTER AGREES WITH MY VIEWS AS TO OREGON'S POWER TO
TAX THESE FEDERAL RESERVE NOTES, BUT IS OF OPINION THAT THE RECORD
SUSTAINS THE GROUND TAKEN IN THE COURT'S OPINION. 
..END :























OKLAHOMA PACKING CO. V. GAS CO., 309 U.S. 4 


NO. 19.  ARGUED OCTOBER 17, 1939.  - DECIDED DECEMBER 4, 1939.  OPINION
ON PETITION FOR REHEARING DELIVERED JANUARY 15, 1940.  - 100 F.2D 770,
REVERSED. 


1.  A DELAWARE CORPORATION, PURSUANT TO THE LAWS OF OKLAHOMA,
DESIGNATED AN AGENT FOR SERVICE OF PROCESS "IN ANY ACTION IN THE STATE
OF OKLAHOMA."  HELD AMENABLE TO SUIT IN THE FEDERAL DISTRICT COURT IN
OKLAHOMA UPON A CAUSE OF ACTION ARISING IN THAT STATE.  NEIRBO CO. V.
BETHLEHEM SHIPBUILDING CORP., 308 U.S. 165.  P. 6. 

2.  A DETERMINATION OF THE SUPREME COURT OF OKLAHOMA THAT ITS
JUDGMENTS, ON APPEAL FROM RATE ORDERS OF THE CORPORATION COMMISSION,
WERE FORMERLY LEGISLATIVE IN CHARACTER AND THAT THEY CAN NOT BE GIVEN
THE EFFECT OF RES JUDICATA BY THE RETROACTIVE INFLUENCE OF A LATER
DOCTRINE OF THAT COURT CHARACTERIZING SUCH JUDGMENTS AS JUDICIAL,  -
HELD BINDING ON THIS COURT.  P. 7. 

3.  WHERE AN ACTION UPON SUPERSEDEAS BONDS GIVEN BY A GAS COMPANY FOR
THE SECURITY OF ONE OF ITS CONSUMERS IN CONNECTION WITH ITS APPEAL FROM
A RATE ORDER, WAS PENDING IN A STATE COURT AND DEFENDED BY THE
COMPANY'S ANSWER UPON THE GROUND THAT THE ORDER VIOLATED THE FEDERAL
CONSTITUTION, HELD THAT A SUBSEQUENT SUIT BY THE COMPANY, ON THE SAME
GROUND, TO ENJOIN THE CONSUMER FROM PROSECUTING THE ACTION COULD NOT BE
ENTERTAINED BY A FEDERAL COURT.  JUD.  CODE, SEC. 265.  P. 8. 

OKLAHOMA PACKING CO. ET AL. V. OKLAHOMA GAS & ELECTRIC CO. ET AL.* 

*THE ORIGINAL OPINION OF THE COURT DELIVERED DECEMBER 4, 1939, WHICH,
ON PETITION FOR REHEARING, WAS WITHDRAWN AND REPLACED (308 U.S. 530) BY
THE ONE HERE REPORTED, APPEARS IN THE APPENDIX, POST, P. 703.  FOR
SEPARATE OPINION OF THE CHIEF JUSTICE AND MCREYNOLDS AND ROBERTS, JJ.,
DELIVERED DECEMBER 4, 1939, SEE POST, P. 9. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 306 U.S. 629, TO REVIEW THE AFFIRMANCE OF A DECREE
ENJOINING THE PROSECUTION OF AN ACTION IN THE STATE COURT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE CONCERNS A RATE CONTROVERSY WHICH HAS BEEN WINDING ITS SLOW
WAY THROUGH STATE AND FEDERAL COURTS FOR THIRTEEN YEARS.  FN1  WHILE
THE RELATIONSHIP OF TWO UTILITIES WITH WILSON & CO., A CONSUMER OF
NATURAL GAS, COMPLICATES THE SITUATION, THE LEGAL ISSUES BEFORE US MAY
BE DISPOSED OF AS THOUGH THIS WERE A TYPICAL CASE OF A UTILITY
RESISTING AN ORDER REDUCING ITS RATES.  FN2  OKLAHOMA GAS & ELECTRIC
COMPANY (HEREAFTER CALLED GAS & ELECTRIC) APPEALED TO THE OKLAHOMA
SUPREME COURT FROM SUCH AN ORDER BY THE OKLAHOMA CORPORATION
COMMISSION.  THE REDUCTION WAS STAYED PENDING THE APPEAL, BUT TO
PROTECT WILSON & CO. AGAINST A POTENTIAL OVERCHARGE, GAS & ELECTRIC
GAVE A SUPERSEDEAS BOND.  GAS & ELECTRIC LOST ITS APPEAL, OKLAHOMA GAS
& ELECTRIC CO. V. WILSON & CO., 146 OKLA. 272, 288 P. 316, AND WILSON &
CO. BROUGHT SUIT ON THE BOND.  THAT SUIT WAS INSTITUTED ON DECEMBER 3,
1931, IN ONE OF THE DISTRICT COURTS OF OKLAHOMA.  TO ENJOIN PROSECUTION
OF THE LATTER SUIT GAS & ELECTRIC ON MAY 20, 1932, INVOKED THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA.  FN3  AFTER A COMPLICATED SERIES OF MOVES IN BOTH
STATE AND FEDERAL COURTS, NOT NECESSARY HERE TO DETAIL, THIS RELIEF WAS
GRANTED BY THE DISTRICT COURT ON SEPTEMBER 10, 1937, AND ON DECEMBER
19, 1938, SUSTAINED BY THE CIRCUIT COURT OF APPEALS.  OKLAHOMA PACKING
CO. V. OKLAHOMA GAS & ELECTRIC CO., 100 F.2D 770.  SINCE THE CASE IN
PART WAS IN CONFLICT WITH THE SECOND CIRCUIT'S DECISION IN NEIRBO CO.
V. BETHLEHEM SHIPBUILDING CORP., 103 F.2D 765, AND ALSO PRESENTED NOVEL
ASPECTS OF IMPORTANT QUESTIONS OF FEDERAL LAW, WE GRANTED CERTIORARI,
306 U.S. 629.  WE ARE NOT CONCERNED WITH THE MERITS OF THE COMMISSION'S
ORDER. 

AT THE THRESHOLD WE ARE MET BY THE PROCEDURAL OBJECTION, SEASONABLY
MADE, THAT WILSON & CO., A DELAWARE CORPORATION, WAS IMPROPERLY SUED IN
THE DISTRICT COURT OF THE WESTERN DISTRICT OF OKLAHOMA.  THE OBJECTION
IS UNAVAILABLE.  PRIOR TO THIS SUIT, WILSON & CO. HAD, AGREEABLE TO THE
LAWS OF OKLAHOMA, DESIGNATED AN AGENT FOR SERVICE OF PROCESS "IN ANY
ACTION IN THE STATE OF OKLAHOMA."  BOTH COURTS BELOW FOUND THIS TO BE
IN FACT A CONSENT ON WILSON & CO.'S PART TO BE SUED IN THE COURTS OF
OKLAHOMA UPON CAUSES OF ACTION ARISING IN THAT STATE.  THE FEDERAL
DISTRICT COURT IS, WE HOLD, A COURT OF OKLAHOMA WITHIN THE SCOPE OF
THAT CONSENT, AND FOR THE REASONS INDICATED IN NEIRBO CO. V. BETHLEHEM
SHIPBUILDING CORP., 308 U.S. 165, WILSON & CO. WAS AMENABLE TO SUIT IN
THE WESTERN DISTRICT OF OKLAHOMA. 

PETITIONERS FURTHER URGE (1) THAT THEIR PLEA OF RES JUDICATA SHOULD
HAVE BEEN SUSTAINED, AND (2) THAT SEC. 265 OF THE JUDICIAL ACT (ACT OF
MARCH 3, 1911, 36 STAT. 1162, 28 U.S.C. SEC. 379, DERIVED FROM SEC. 5
OF THE ACT OF MARCH 2, 1793, 1 STAT. 333, 335), WAS A BAR TO THE SUIT. 

THE CLAIM OF RES JUDICATA IS BASED ON THE PRIOR DETERMINATION IN 1930
BY THE SUPREME COURT OF OKLAHOMA THAT THE CONTESTED ORDER OF THE
CORPORATION COMMISSION WAS VALID.  OKLAHOMA GAS & ELECTRIC CO. V.
WILSON & CO., 146 OKLA. 272; 288 P. 316.  THE PRONOUNCEMENTS OF THE
OKLAHOMA SUPREME COURT CONCERNING THE CHARACTER OF SUCH A DETERMINATION
- WHETHER UNDER THE OKLAHOMA CONSTITUTION IT WAS A "LEGISLATIVE" OR
"JUDICIAL" REVIEW - HAVE FOR A TIME, HOWEVER, BEEN AMBIGUOUS AND
FLUCTUATING.  AFTER THE PRESENT BILL WAS FILED BUT BEFORE THE
CHALLENGED INJUNCTION WAS DECREED, THE OKLAHOMA SUPREME COURT HAD HELD
THAT ITS DECISION IN CASES LIKE THAT OF OKLAHOMA GAS & ELECTRIC CO. V.
WILSON & CO., WAS A JUDICIAL JUDGMENT.  OKLAHOMA COTTON GINNERS' ASSN.
V. STATE, 174 OKLA. 243; 51 P.2D 327.  BUT, IN COMMUNITY NATURAL GAS
CO. V. CORPORATION COMMISSION, 182 OKLA. 137; 76 P.2D 393, DECIDED
AFTER THE DECREE HERE IN ISSUE, THE OKLAHOMA COURT FORMALLY
CHARACTERIZED ITS REVIEW IN CASES PRIOR TO THE DECISION IN THE GINNERS'
CASE AS "LEGISLATIVE," REFUSED TO GIVE THAT DECISION RETROACTIVE
EFFECT, AND THEREFORE DEEMED THE RES JUDICATA DOCTRINE INAPPLICABLE TO
THESE PRIOR REVIEWS.  HENCE, THE PLEA OF RES JUDICATA IN THIS CASE MUST
FAIL, FOR ON THAT ISSUE STATE LAW IS DETERMINATIVE HERE.  UNION &
PLANTERS' BANK V. MEMPHIS, 189 U.S. 71; COVINGTON V. FIRST NATIONAL
BANK, 198 U.S. 100; WRIGHT V. GEORGIA RAILROAD & BANKING CO., 216 U.S.
420. 

THERE REMAINS, THEREFORE, THE APPLICABILITY OF SEC. 265 OF THE
JUDICIAL CODE.  FN4  THAT PROVISION WOULD OPERATE AS A BAR UPON THE
POWER OF THE DISTRICT COURT TO ENJOIN PROCEEDINGS PREVIOUSLY BROUGHT IN
THE STATE COURT ON THE SUPERSEDEAS BOND, IF "THE ONLY THING SOUGHT TO
BE ACCOMPLISHED BY THIS EQUITABLE ACTION" IS TO STAY THE CONTINUANCE OF
THAT ACTION.  SUCH WAS THE CONSTRUCTION PLACED UPON THE BILL BY THE
EARLIER DISTRICT COURT OF THREE JUDGES, AND SUCH WAS THIS COURT'S
ASSUMPTION WHEN THE LATTER DECISION CAME HERE ON APPEAL.  OKLAHOMA GAS
& ELECTRIC CO. V. OKLAHOMA PACKING CO., 6 F.SUPP.  893, 895; OKLAHOMA
GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO., 292 U.S. 386, 389.  THAT
CASE ELIMINATED THE CORPORATION COMMISSION AS PARTY TO THE LITIGATION. 
THE DISTRICT COURT TO WHICH THIS COURT REMANDED THE MATTER SUMMARIZED
GAS & ELECTRIC'S CLAIM BY WAY OF ANSWER TO THE ACTION BROUGHT BY WILSON
& CO. IN THE STATE COURT AS AN ATTACK UPON THE COMMISSION'S ORDER "FOR
SUBSTANTIALLY THE SAME REASONS AS SET OUT" IN THE PRESENT BILL. 

THE PRESENT SUIT, THEREFORE, IS ONE FOR AN INJUNCTION "TO STAY
PROCEEDINGS" PREVIOUSLY BEGUN IN A STATE COURT.  THE DECREE BELOW IS
THUS WITHIN THE PLAIN INTERDICTION OF AN ACT OF CONGRESS, AND NOT TAKEN
OUT OF IT BY ANY OF THE EXCEPTIONS WHICH THIS COURT HAS HERETOFORE
ENGRAFTED UPON A LIMITATION OF THE POWER OF THE FEDERAL COURTS DATING
ALMOST FROM THE BEGINNING OF OUR HISTORY AND EXPRESSING AN IMPORTANT
CONGRESSIONAL POLICY - TO PREVENT NEEDLESS FRICTION BETWEEN STATE AND
FEDERAL COURTS.  COMPARE MADISONVILLE TRACTION CO. V. ST. BERNARD
MINING CO., 196 U.S. 239; SIMON V. SOUTHERN RAILWAY CO., 236 U.S. 115;
WELLS FARGO & CO. V. TAYLOR, 254 U.S. 175.  SEE WARREN, "FEDERAL AND
STATE COURT INTERFERENCE," 43 HARV. L. REV. 345, 372-77.  THAT THE
INJUNCTION WAS A RESTRAINT OF THE PARTIES AND WAS NOT FORMALLY DIRECTED
AGAINST THE STATE COURT ITSELF IS IMMATERIAL.  HILL V. MARTIN, 296 U.S.
393, 403.  CF. KOHN V. CENTRAL DISTRIBUTING CO., 306 U.S. 531. 
STEELMAN V. ALL CONTINENT CORP., 301 U.S. 278, PRESSED UPON US BY
RESPONDENTS AND RELIED UPON BELOW, IS PLAINLY INAPPLICABLE. 

NEITHER RECORD NOR FINDINGS BELOW GIVE ANY OTHER BASIS FOR INJUNCTIVE
RELIEF SAVE THE THREATENED INJURY IMPLIED IN THE STATE COURT LAWSUIT;
AND THAT COULD NOT BE ENJOINED.  THE DECREE BELOW IS REVERSED, WITH
DIRECTIONS TO DISMISS THE BILL.  REVERSED. 

FN1  A HISTORY OF THE CONTROVERSY IS TO BE FOUND IN OKLAHOMA GAS &
ELECTRIC CO. V. WILSON & CO., 146 OKLA. 272; 288 P. 316; OKLAHOMA GAS &
ELECTRIC CO. V. WILSON & CO., 54 F.2D 596; OKLAHOMA GAS & ELECTRIC CO.
V. OKLAHOMA PACKING CO., 6 F.SUPP.  893; OKLAHOMA GAS & ELECTRIC CO. V.
OKLAHOMA PACKING CO., 292 U.S. 386; OKLAHOMA GAS & ELECTRIC CO. V.
WILSON & CO., 178 OKLA. 604; 62 P.2D 703; OKLAHOMA PACKING CO. V.
OKLAHOMA GAS & ELECTRIC CO., 100 F.2D 770. 

FN2  OKLAHOMA NATURAL GAS CO. AND OKLAHOMA GAS AND ELECTRIC CO., BOTH
ENGAGED IN THE SALE OF NATURAL GAS IN AND ABOUT OKLAHOMA CITY, HAD
AGREED TO A DIVISION OF TERRITORY.  UNDER THAT AGREEMENT, WILSON & CO.
BOUGHT GAS FROM GAS & ELECTRIC.  THE OKLAHOMA CORPORATION COMMISSION
FOUND THAT NATURAL GAS HAD HELD ITSELF OUT TO PROVIDE GAS TO INDUSTRIAL
CONSUMERS AT A LOWER RATE THAN THAT AT WHICH WILSON & CO. WAS ABLE TO
BUY FROM GAS & ELECTRIC.  THE COMMISSION THEN ORDERED NATURAL GAS TO
PROVIDE WILSON & CO. WITH ITS GAS AT PREVAILING INDUSTRIAL RATES.  BOTH
NATURAL GAS AND GAS & ELECTRIC RESISTED THE ORDER.  NATURAL GAS
CONTENDED THAT IT HAD NEVER HELD ITSELF OUT TO INDUSTRIAL CONSUMERS;
GAS & ELECTRIC CLAIMED THAT IT WAS BEING UNCONSTITUTIONALLY DEPRIVED OF
ITS RIGHT TO SELL TO WILSON & CO. AT THE HIGHER RATE.  IF, PENDING
APPEAL FROM THE COMMISSION, THE ORDER WERE NOT STAYED, WILSON & CO.
WOULD HAVE BEEN ABLE TO PURCHASE GAS FROM NATURAL GAS AT THE LOWER RATE
AND GAS & ELECTRIC WOULD HAVE BEEN FORCED EITHER TO LOWER ITS RATES TO
MEET THE COMPETITION OR TO LOSE THE BUSINESS. 

FN3  IN 1928 NATURAL GAS COMPLIED WITH THE ORDER; AND SINCE THAT TIME
WILSON & CO. HAS BEEN BUYING GAS AT THE LOWER RATE PRESCRIBED BY THE
COMMISSION.  THE SOLE QUESTION NOW INVOLVED IN THESE PROCEEDINGS IS THE
LIABILITY OF GAS & ELECTRIC TO WILSON & CO. FOR ALLEGED OVERCHARGES
BETWEEN 1926 AND 1928.  THE DISTRICT COURT FOUND SPECIFICALLY THAT THE
CORPORATION COMMISSION HAD MADE NO THREAT TO ENFORCE PENALTIES FOR
VIOLATIONS OF THE 1926 ORDER, AND AS TO THE COMMISSION, DECLINED TO
GRANT ANY INJUNCTIVE RELIEF.  CF. OKLAHOMA GAS & ELECTRIC CO. V.
OKLAHOMA PACKING CO., 292 U.S. 386, 390. 

FN4  SECTION 265 PROVIDES:  "THE WRIT OF INJUNCTION SHALL NOT BE
GRANTED BY ANY COURT OF THE UNITED STATES TO STAY PROCEEDINGS IN ANY
COURT OF A STATE, EXCEPT IN CASES WHERE SUCH INJUNCTION MAY BE
AUTHORIZED BY ANY LAW RELATING TO PROCEEDINGS IN BANKRUPTCY." 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS
ADHERE TO THE VIEWS EXPRESSED IN THEIR SEPARATE OPINION IN THIS CASE. 

THE SEPARATE OPINION REFERRED TO WAS DELIVERED DECEMBER 4, 1939(SEE
FOOTNOTE, P. 4), AND IS AS FOLLOWS: 

MR. CHIEF JUSTICE HUGHES: 

I CONCUR IN THE REVERSAL OF THE JUDGMENT UPON THE GROUND THAT WILSON
& CO., A DELAWARE CORPORATION, WAS NOT AMENABLE TO SUIT IN THE FEDERAL
DISTRICT COURT IN OKLAHOMA.  THE QUESTION IS ESSENTIALLY THE SAME AS
THAT PRESENTED IN NEIRBO CO. V. BETHLEHEM SHIPBUILDING CORP., 308 U.S.
165, AND WHAT WAS SAID IN THE DISSENTING OPINION IN THAT CASE NEED NOT
BE REPEATED HERE.  (SEE, AS TO THE SCOPE OF THE CONSENT UNDER THE
OKLAHOMA STATUTE, THE OBSERVATIONS OF THE CIRCUIT COURT OF APPEALS IN
THE NEIRBO CASE, 103 F.2D 765, 769.) 

BUT IF IT BE GRANTED THAT THE DELAWARE CORPORATION WAS AMENABLE TO
THE PROCESS IN QUESTION, I AM UNABLE TO AGREE THAT THE COMPLAINANTS
SHOULD BE DENIED RELIEF BECAUSE OF THE DEFENSE OF RES JUDICATA.  THE
JUDGMENT TO WHICH THIS EFFECT IS GIVEN WAS RENDERED BY THE SUPREME
COURT OF OKLAHOMA IN 1930, SUSTAINING, ON APPEAL, AN ORDER OF THE
CORPORATION COMMISSION REQUIRING GAS TO BE FURNISHED TO WILSON & CO. AT
A SPECIFIED RATE.  OKLAHOMA GAS & ELECTRIC CO. V. WILSON & CO., 146
OKLA. 272; 288 P. 316.  AT THE TIME OF THAT DECISION, THE REVIEW BY THE
SUPREME COURT OF OKLAHOMA OF SUCH AN ORDER OF THE CORPORATION
COMMISSION WAS CONSIDERED TO BE LEGISLATIVE IN CHARACTER.  OKLAHOMA GAS
CO. V. RUSSELL, 261 U.S. 290, 291; MCALESTER GAS & COKE CO. V.
CORPORATION COMMISSION, 101 OKLA. 268, 270; 224 P. 698; CITY OF POTEAU
V. AMERICAN INDIAN OIL & GAS CO., 159 OKLA. 240, 242, 243; 18 P.2D 523,
IN WHICH THE STATE COURT CITED WITH APPROVAL THE DECISION TO THAT
EFFECT OF THE CIRCUIT COURT OF APPEALS IN OKLAHOMA GAS & ELECTRIC CO.
V. WILSON & CO., 54 F.2D 596, 598, 599, APPLYING THE OKLAHOMA
DECISIONS.  COMPARE OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA PACKING
CO., 292 U.S. 386, 388; CORPORATION COMMISSION V. CARY, 296 U.S. 452,
458.  THE CONTENTION OF THE COMPLAINANTS BEFORE THE STATE COURT WAS
THAT THE COMMISSION'S ORDER VIOLATED THEIR RIGHTS UNDER THE FEDERAL
CONSTITUTION.  146 OKLA. 272, 281, 288; 288 P. 316.  BUT IN THE VIEW,
AS THEN HELD, THAT THE ACTION OF THE STATE COURT WAS LEGISLATIVE IN
CHARACTER, NO APPEAL LAY TO THIS COURT FROM THE STATE COURT'S
DETERMINATION OF THE FEDERAL QUESTION.  PRENTIS V. ATLANTIC COAST LINE
CO., 211 U.S. 210, 226, 227; OKLAHOMA GAS CO. V. RUSSELL, SUPRA.
ACCORDINGLY, THE COMPLAINANTS BROUGHT THIS SUIT IN THE FEDERAL COURT TO
ENJOIN THE ENFORCEMENT OF THE COMMISSION'S ORDER. 

IT WAS NOT UNTIL SEVERAL YEARS LATER (IN 1935) THAT THE OKLAHOMA
SUPREME COURT DECIDED, IN A SUIT BETWEEN OTHER PARTIES, THAT ITS ACTION
IN REVIEWING SUCH AN ORDER OF THE COMMISSION WAS JUDICIAL AND NOT
LEGISLATIVE IN CHARACTER.  OKLAHOMA COTTON GINNERS' ASSN. V. STATE, 174
OKLA. 243; 51 P.2D 327.  THE MANIFEST INJUSTICE OF HOLDING THAT
COMPLAINANTS ARE BOUND BY THE STATE COURT'S RULING IN 1930 AS A
JUDICIAL DETERMINATION, WHEN AT THAT TIME UNDER THE STATE COURT'S
CONSTRUCTION OF THE STATE CONSTITUTION THE COMPLAINANTS WERE NOT AT
LIBERTY TO TREAT THE RULING AS A JUDICIAL DETERMINATION AND TO OBTAIN A
REVIEW OF THE FEDERAL QUESTION BY THIS COURT UPON THAT GROUND, IS NOT
MET, AS IT SEEMS TO ME, BY INVOKING THE GENERAL DOCTRINE OF RES
JUDICATA.    WHETHER THE JUDGMENT OF A STATE COURT IS RES JUDICATA IS A
QUESTION OF STATE LAW.  THE FEDERAL COURTS ARE NOT BOUND TO GIVE SUCH
DOMESTIC JUDGMENTS ANY GREATER FORCE THAN THAT AWARDED THEM BY THE
COURTS OF THE STATE WHERE RENDERED.  UNION & PLANTERS' BANK V. MEMPHIS,
189 U.S. 71, 75; COVINGTON V. FIRST NATIONAL BANK, 198 U.S. 100, 109;
WRIGHT V. GEORGIA RAILROAD & BANKING CO., 216 U.S. 420, 429.  I THINK
THAT WE ARE NOT AT LIBERTY TO ASSUME THAT THE OKLAHOMA COURT WOULD SO
FAR DEPART FROM THE PLAIN REQUIREMENTS OF JUSTICE AS TO PRECLUDE IN
THESE CIRCUMSTANCES A REVIEW OF THE FEDERAL QUESTION IN A COURT OF
COMPETENT JURISDICTION.  THE STATE COURT HAS NOT SPOKEN TO THAT EFFECT
AND WHAT THE STATE COURT HAS SAID I THINK CLEARLY IMPORTS THE
CONTRARY. 

THIS APPEARS FROM ITS DECISION IN OKLAHOMA GAS & ELECTRIC CO. V.
WILSON & CO., 178 OKLA. 604; 63 P.2D 703.  THAT WAS AN ACTION IN THE
STATE COURT ON THE SUPERSEDEAS BOND GIVEN ON THE APPEAL TO THE SUPREME
COURT FROM THE COMMISSION'S ORDER IN QUESTION, AND WILSON & CO., THE
PLAINTIFF, HAD JUDGMENT.  THE SUPREME COURT REVERSED THAT JUDGMENT AND
DIRECTED A STAY PENDING THE DETERMINATION IN THIS VERY SUIT IN THE
FEDERAL COURT OF THE VALIDITY OF THE COMMISSION'S ORDER.  THE SUPREME
COURT EXPRESSLY REFERRED TO ITS DECISION, IN 1935, IN OKLAHOMA COTTON
GINNERS' ASSN. V. STATE, SUPRA, THAT ITS ACTION IN REVIEWING ORDERS OF
THE COMMISSION AFFECTING RATES OF PUBLIC UTILITIES CONSTITUTED A
JUDICIAL DETERMINATION OF THE QUESTIONS INVOLVED.  BUT INSTEAD OF
HOLDING THAT THE RULING IN 1930, UPON THE ORDER NOW UNDER REVIEW,
CONSTITUTED A FINAL ADJUDICATION OF THE VALIDITY OF THAT ORDER, THE
SUPREME COURT HELD THAT THE QUESTION OF VALIDITY WAS AN OPEN ONE FOR
DETERMINATION BY THE FEDERAL COURT IN THE PRESENT SUIT.  AFTER SAYING
THAT IN VIEW OF THE UNCERTAINTY WITH RESPECT TO THE "RIGHT TO A
JUDICIAL REMEDY IN THE STATE COURTS," THE FEDERAL COURT HAD ACQUIRED
JURISDICTION OF THIS SUIT, THE STATE COURT CONCLUDED AS FOLLOWS: 

"THAT REMEDY WAS AVAILABLE TO THEM AS THE ONLY CERTAIN METHOD OF
OBTAINING A JUDICIAL DETERMINATION OF THE VALIDITY OF THE COMMISSION'S
ORDER.  THE SUIT WAS A DIRECT ATTACK UPON SUCH ORDER, AND UNTIL ITS
VALIDITY WAS ESTABLISHED IN THAT SUIT, THE STATE COURT WAS WITHOUT
JURISDICTION TO PROCEED WITH AN ACTION BASED UPON SUCH ORDER.  THIS FOR
THE REASON THAT WHERE DIRECT ATTACK IN EQUITY IS MADE UPON THE ORDER OF
THE COMMISSION, THE DEFENDANTS' LIABILITY ON SUCH ORDER IS NOT FINALLY
DETERMINED JUDICIALLY UNTIL FINAL DETERMINATION OF THE EQUITABLE
ACTION." 

IF UNDER THE STATE LAW AS THUS DECLARED IN OKLAHOMA UPON
CONSIDERATION OF THE PARTICULAR CIRCUMSTANCES OF THIS CASE, LIABILITY
ON THE COMMISSION'S ORDER IS NOT FINALLY DETERMINED JUDICIALLY UNTIL
THE DETERMINATION OF THAT QUESTION IN THIS EQUITY SUIT, I AM AT A LOSS
TO UNDERSTAND HOW THE ACTION OF THE STATE COURT ON THE 1930 APPEAL CAN
BE REGARDED AS RES JUDICATA AND THUS A BAR TO THAT DETERMINATION. 

THE DECREE BELOW ENJOINING ENFORCEMENT OF THE COMMISSION'S ORDER
APPROPRIATELY FOLLOWED THE DETERMINATION OF ITS INVALIDITY.  THE POINT
THAT THE DECREE SHOULD NOT HAVE GONE FURTHER AND ENJOINED THE
PROSECUTION OF THE ACTION IN THE STATE COURT UPON THE SUPERSEDEAS BOND
IS AT BEST ONLY ONE OF TECHNICAL IMPORTANCE, AS THE STATE COURT ITSELF
ENJOINED SUCH PROCEEDINGS PENDING THE DETERMINATION OF THIS SUIT,
APPARENTLY IN THE VIEW THAT A DETERMINATION HEREIN OF THE INVALIDITY OF
THE ORDER WOULD DISPOSE OF THE MERITS. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS JOIN IN THIS OPINION. 

..END :











SCHNEIDER V. STATE, 308 U.S. 147 


NO. 11.  ARGUED OCTOBER 13, 16, 1939.  - DECIDED NOVEMBER 22, 1939.  -
121 N.J.L. 542, 3 A.2D 609 - 33 CAL. APP.2D 747, 85 P.2D 231 - 230 WIS.
131, 283 N.W. 301 - 18 N.E.2D (MASS.) 166, REVERSED. 


1.  THE FREEDOM OF SPEECH AND OF THE PRESS SECURED BY THE FIRST
AMENDMENT AGAINST ABRIDGMENT BY THE UNITED STATES IS SIMILARLY SECURED
TO ALL PERSONS BY THE FOURTEENTH AMENDMENT AGAINST ABRIDGMENT BY A
STATE.  P. 160. 

2.  IT IS A DUTY OF MUNICIPAL AUTHORITIES, AS TRUSTEES FOR THE
PUBLIC, TO KEEP THE STREETS OPEN AND AVAILABLE FOR MOVEMENT OF PEOPLE
AND PROPERTY - THE PRIMARY PURPOSE TO WHICH THE STREETS ARE DEDICATED;
AND TO THIS END THE CONDUCT OF THOSE WHO USE THEM MAY BE REGULATED; BUT
SUCH REGULATION MUST NOT ABRIDGE THE CONSTITUTIONAL LIBERTY OF THOSE
WHO ARE RIGHTFULLY UPON THE STREETS TO IMPART INFORMATION THROUGH
SPEECH OR THE DISTRIBUTION OF LITERATURE.  ID. 

3.  THE GUARANTY OF FREEDOM OF SPEECH AND OF THE PRESS DOES NOT
DEPRIVE A MUNICIPALITY OF POWER TO ENACT REGULATIONS AGAINST STANDING
IN THE MIDDLE OF A CROWDED STREET AND OBSTRUCTING TRAFFIC, OR
INTERFERING WITH THE PASSAGE OF PEDESTRIANS IN ORDER TO FORCE THEIR
ACCEPTANCE OF TENDERED LEAFLETS, OR AGAINST THROWING LITERATURE
BROADCAST IN THE STREETS, SINCE SUCH CONDUCT BEARS NO NECESSARY
RELATIONSHIP TO THE FREEDOM TO SPEAK, WRITE, PRINT OR DISTRIBUTE
INFORMATION OR OPINION.  P. 160. 

4.  THE PURPOSE TO KEEP THE STREETS CLEAN AND NEAT IS INSUFFICIENT TO
JUSTIFY AN ORDINANCE WHICH PROHIBITS A PERSON RIGHTFULLY ON A PUBLIC
STREET FROM HANDING LITERATURE TO ONE WILLING TO RECEIVE IT.  ANY
BURDEN IMPOSED UPON THE CITY AUTHORITIES, IN CLEANING AND CARING FOR
THE STREETS, AS AN INDIRECT CONSEQUENCE OF SUCH DISTRIBUTION, RESULTS
FROM THE CONSTITUTIONAL PROTECTION OF THE FREEDOM OF SPEECH AND PRESS. 
P. 162. 

THERE ARE OBVIOUS METHODS OF PREVENTING LITTERING OF THE STREETS,  -
E.G., THE PUNISHMENT OF THOSE WHO ACTUALLY THROW PAPERS ON THE
STREETS. 

5.  THE CIRCUMSTANCE THAT, IN THE ACTUAL ENFORCEMENT OF AN ORDINANCE
FORBIDDING ALL DISTRIBUTION OF LITERATURE IN THE STREETS, THE
DISTRIBUTOR IS ARRESTED ONLY IF THOSE WHO RECEIVE THE LITERATURE THROW
IT ON THE STREETS, DOES NOT RENDER THE ORDINANCE VALID.  P. 163. 

6.  ORDINANCES FORBIDDING DISTRIBUTION OF PRINTED MATTER ARE NOT MADE
VALID BY LIMITING THEIR OPERATION TO STREETS AND ALLEYS AND LEAVING
OTHER PUBLIC PLACES FREE.  P. 163. 

7. A MUNICIPAL ORDINANCE PROHIBITING SOLICITATION, AND DISTRIBUTION
OF CIRCULARS, BY CANVASSING FROM HOUSE TO HOUSE, UNLESS LICENSED BY THE
POLICE AFTER AN INQUIRY AND DECISION AMOUNTING TO CENSORSHIP, HELD VOID
AS APPLIED TO ONE WHO DELIVERED LITERATURE AND SOLICITED CONTRIBUTIONS
FROM HOUSE TO HOUSE IN THE NAME OF RELIGION.  P. 163. 

SCHNEIDER V. STATE (TOWN OF IRVINGTON).* 

*TOGETHER WITH NO. 13, KIM YOUNG V. CALIFORNIA, ON APPEAL FROM THE
APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF LOS ANGELES COUNTY,
CALIFORNIA; NO. 18, SNYDER V. MILWAUKEE, CERTIORARI TO THE SUPREME
COURT OF WISCONSIN; AND NO. 29, NICHOLS ET EL. V. MASSACHUSETTS, ON
APPEAL FROM THE SUPERIOR COURT OF WORCESTER COUNTY, MASSACHUSETTS. 

CERTIORARI TO THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

TWO OF THESE FOUR CASES CAME UP BY APPEAL, AND TWO BY CERTIORARI, 306
U.S. 628, 629, TO REVIEW DECISIONS OF STATE COURTS WHICH UPHELD
CONVICTIONS UNDER MUNICIPAL ORDINANCES FORBIDDING OR REGULATING
DISTRIBUTION OF LITERATURE IN THE STREETS OR OTHER PUBLIC PLACES.  IN
THREE OF THE CASES THE ACTS CHARGED TOOK PLACE IN THE STREETS.  THE
OTHER WAS A CASE OF CIRCULARS DISTRIBUTED BY HOUSE TO HOUSE
VISITATIONS. 

SINCE THE ORDINANCE IS VALID ON ITS FACE AND PETITIONER FAILED TO
SEEK A PERMIT UNDER IT, SHE IS NOT ENTITLED TO CONTEST ITS VALIDITY IN
ANSWER TO THE CHARGE AGAINST HER, NOR MAY SHE COMPLAIN OF ANTICIPATED
IMPROPER OR INVALID ACTION IN ADMINISTRATION.  LOVELL V. GRIFFIN, 303
U.S. 444; SMITH V. CAHOON, 283 U.S. 553; GUNDLING V. CHICAGO, 177 U.S.
183; LEHON V. ATLANTA, 242 U.S. 53. 

THE ORDINANCE, OF ITSELF AND AS APPLIED TO THE ACTS OF THE
PETITIONER, IS CONSTITUTIONAL AND VALID, BECAUSE IT IS A REASONABLE AND
PROPER EXERCISE OF THE POLICE POWER IN FURTHERANCE OF THE PUBLIC
WELFARE, TO WHICH THE CONSTITUTIONAL RIGHTS OF FREEDOM OF SPEECH AND OF
THE PRESS ARE PROPERLY SUBJECT.  LOVELL V. GRIFFIN, 303 U.S. 444,
DISTINGUISHABLE AND INAPPLICABLE.  SEE HALL V. GEIGER-JONES CO., 242
U.S. 539, 552; PITTSBURGH V. RUFFNER, 134 PA. SUPER.  192; 4 A.2D 224,
228; BARBIER V. CONNOLLY, 113 U.S. 27, 31; MUGLER V. KANSAS, 123 U.S.
623, 664; BERGENFIELD V. MORGAN ET AL., SUP. CT. N.J., MARCH 21, 1934;
DAVIS V. BEASON, 133 U.S. 333, 344; DZIATKIEWICZ V. MAPLEWOOD, 115
N.J.L. 37, 42; LEOLES V. LANDERS, 302 U.S. 656; HERING V. STATE BOARD
OF EDUCATION, 303 U.S. 624; THOMAS V. ATLANTA, 1 S.E.2D 598; HAMILTON
V. REGENTS OF THE UNIVERSITY OF CALIFORNIA, 293 U.S. 245, 268. 

THE ORDINANCE, PROHIBITING THE DISTRIBUTION OF HAND-BILLS TO
PEDESTRIANS UPON THE PUBLIC STREETS OF THE CITY OF LOS ANGELES, IS A
REASONABLE EXERCISE OF THE POLICE POWER OF THE STATE. 

THE VALIDITY OF THE ORDINANCE UNDER THE DUE PROCESS CLAUSE IS
DETERMINED BY ITS REASONABLENESS AS A MEASURE UNDER THE POLICE POWER OF
THE STATE.  GITLOW V. NEW YORK, 268 U.S. 652, 668; WHITNEY V.
CALIFORNIA, 274 U.S. 357, 371; FISKE V. KANSAS, 274 U.S. 380, 387; NEW
YORK EX REL. BRYANT V. ZIMMERMAN, 278 U.S. 63, 72. 

THE WISDOM AND NECESSITY FOR THIS PROHIBITION ARE PRIMARILY FOR THE
CITY COUNCIL TO DETERMINE.  SOUTH CAROLINA STATE HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177, 192; PACIFIC STATES BOX & BASKET CO. V.
WHITE, 296 U.S. 176, 185; FIFTH AVENUE COACH CO. V. NEW YORK, 221 U.S.
467, 482; SOON HING V. CROWLEY, 113 U.S. 703, 708. 

THERE IS NOTHING IN THE RECORD WHICH TENDS TO SHOW THAT THE
PROHIBITION OF THE DISTRIBUTION OF HANDBILLS AND DODGERS UPON THE
PUBLIC STREETS WAS NOT A REASONABLE EXERCISE OF DISCRETION ON THE PART
OF THE COUNCIL OF THE POWER OF THE CITY TO "MAKE AND ENFORCE WITHIN ITS
LIMITS ALL SUCH LOCAL, POLICE, SANITARY, AND OTHER REGULATIONS AS ARE
NOT IN CONFLICT WITH GENERAL LAWS."  (CAL. CONST., ART. XI, SEC. 11.) 

AN UNCONTROLLED DISTRIBUTION OF PAPERS OF ANY KIND ON THE STREETS IS
BOUND TO RESULT, MORE OR LESS, IN STOPPAGE OF STORM DRAINS. 

IT WOULD PRESENT AN ANOMALOUS SITUATION IF MUNICIPAL AUTHORITIES
COULD, IN THE INTEREST OF PUBLIC HEALTH AND SAFETY AND THE GENERAL
WELFARE, ESTABLISH SET-BACK LINES FOR BUILDINGS OR REQUIRE OPEN AREAS
ON EACH LOT, GORIEB V. FOX, 274 U.S. 603; OR REQUIRE THAT CERTAIN
DISTRICTS BE RESTRICTED TO RESIDENCE PURPOSES ONLY, ZAHN V. BOARD OF
PUBLIC WORKS OF THE CITY OF LOS ANGELES, 274 U.S. 325; OR EVEN PROHIBIT
THE USE OF STREETS FOR ADVERTISING PURPOSES, FIFTH AVENUE COACH CO. V.
NEW YORK, 221 U.S. 467, 482; BUT BE WITHOUT POWER TO ADOPT ORDINANCES
TO PREVENT THE STREETS OF THE COMMUNITY FROM BEING LITTERED WITH
TRASH. 

SINCE ABRIDGMENT OF FREE SPEECH IS NOT THE END SOUGHT TO BE ATTAINED
BY THE ORDINANCE, ANY INTERFERENCE WITH SUCH RIGHT IS INCIDENTAL AND
DOES NOT MAKE THE ORDINANCE VOID.  SAN FRANCISCO SHOPPING NEWS CO. V.
SOUTH SAN FRANCISCO, 69 F.2D 879, 892; CERT. DEN.  293 U.S. 606;
SIEROTY V. HUNTINGTON PARK, 111 CAL. APP. 377, 381; PEOPLE V. ST. JOHN,
108 CAL. APP. 779, 784; MILWAUKEE V. KASSEN, 203 WIS. 383, 384; ALMASSI
V. NEWARK, 8 N.J. MISC. 420, 422; 150 A. 217, 218; COMMONWEALTH V.
KIMBALL, 13 N.E.2D 18, 21; LOVELL V. GRIFFIN, 303 U.S. 444, 451. 

IT IS OBVIOUS THAT THE EFFECT OF THE DISTRIBUTION OF HAND-BILLS,
DODGERS, ETC., ON THE STREETS WILL BE SUBSTANTIALLY THE SAME WHETHER
THEY CONTAIN PRINTED MATTER OF A COMMERCIAL NATURE OR POLITICAL OR
RELIGIOUS MATTER.  MILWAUKEE V. KASSEN, 203 WIS. 383, 385. 

A POLICE REGULATION INTENDED AS SUCH AND NOT OPERATING UNREASONABLY
BEYOND THE OCCASION OF ITS ENACTMENT IS NOT RENDERED INVALID BY THE
FACT THAT IT MAY INCIDENTALLY AFFECT SOME RIGHT GUARANTEED BY THE
CONSTITUTION.  CF. OP. OF ROBERTS, J., IN THE HAGUE CASE, 307 U.S. 496;
STATE V. GIBBES, 171 S.C. 209, 218; PEOPLE V. ALTERIE, 356 ILL. 307,
309; FRANCIS V. PEOPLE, 11 F.2D 860, 865. 

SINCE THE OBJECT OF THE ORDINANCE IS NOT CENSORSHIP OR THE
RESTRICTION OF THE RIGHT OF FREE SPEECH, THE REASONABLENESS OF THE
ORDINANCE IS NOT TO BE DETERMINED BY THE RULE OF "CLEAR AND PRESENT
DANGER."  SEE, HERNDON V. LOWRY, 301 U.S. 242. 

IT IS BESIDE THE ISSUE WHETHER OTHER MEANS MIGHT BE EMPLOYED TO
PREVENT THE LITTERING OF THE CITY STREETS.  UNDER THE POLICE POWER ANY
PRACTICE WHICH TENDS TO ENDANGER THE HEALTH, SAFETY OR WELFARE OF THE
PUBLIC MAY BE PREVENTED.  PURITY EXTRACT CO. V. LYNCH, 226 U.S. 192,
201; HEBE CO. V. SHAW, 248 U.S. 297, 304; EUCLID V. AMBLER REALTY CO.,
272 U.S. 365, 388; MAXCY, INC., V. MAYO, 103 FLA. 552, 577. 

SINCE THE ORDINANCE IS NOT A CENSORSHIP MEASURE, IT IS NOT SUBJECT TO
THE CRITICISM MADE OF THE ORDINANCES INVOLVED IN HAGUE'S CASE, SUPRA,
AND LOVELL V. GRIFFIN, 303 U.S. 444. 

THE DISTINCTION POINTED OUT BY MR. JUSTICE ROBERTS IN THE HAGUE CASE
BETWEEN THE ORDINANCE INVOLVED IN THAT CASE AND THE ONE IN DAVIS V.
MASSACHUSETTS, 167 U.S. 43, IS THE FEATURE WHICH DISTINGUISHES THE
HAGUE CASE FROM THE CASE AT BAR. 

BY REASON OF THE NATURE OF THE CONTENTS OF THE HAND-BILL, FREEDOM OF
THE PRESS IS NOT INVOLVED IN THIS CASE. 

THE ORDINANCE WAS ENACTED UNDER AMPLE AUTHORITY.  LOVELL V. GRIFFIN,
303 U.S. 444; PHILADELPHIA V. BRABENDER, 201 PA. 574; 51 A. 374;
MILWAUKEE V. KASSEN, 203 WIS. 383; 234 N.W. 352; SAN FRANCISCO SHOPPING
NEWS CO. V. SOUTH SAN FRANCISCO, 69 F.2D 879, CERT. DEN., 293 U.S. 606;
IN RE THORNBURG, 9 N.E.2D 516; PEOPLE V. HORWITZ, 27 N.Y. CR. REP. 237;
140 N.Y.S. 437, 439; ALLEN V. MCGOVERN, 169 A. 345; JACOBSON V.
MASSACHUSETTS, 197 U.S. 11; GOLDBLATT BROS. CORP. V. EAST CHICAGO, 6
N.E.2D 331; MCQUILLIN, MUN.  CORP.  (2D ED.), VOL. 3, SEC. 948. 

FREEDOM OF THE PRESS IS SUBJECT TO REASONABLE RULES FORMULATED TO
SERVE THE PUBLIC INTEREST AND TO PREVENT ABUSE IN THE MANNER OF THE
EXERCISE OF THE RIGHT, AS LONG AS THE RIGHT ITSELF IS NEITHER SUSPENDED
NOR ABROGATED.  GITLOW V. NEW YORK, 268 U.S. 652, 666, 667; WHITNEY V.
CALIFORNIA, 274 U.S. 357, 371; STROMBERG V. CALIFORNIA, 283 U.S. 359,
368; NEAR V. MINNESOTA, 283 U.S. 697, 707, 708; DEJONGE V. OREGON, 299
U.S. 353, 364; FREND V. UNITED STATES, 100 F.2D 691. 

THE MEANS ADOPTED ARE LEGITIMATE AND REASONABLE MEANS OF REGULATION. 

THE ORDINANCE IS A VALID REGULATION UNDER THE POLICE POWER FOR THE
PRESERVATION OF PUBLIC ORDER, AND THE PREVENTION OF MISUSE, BY
LITTERING, OF THE PUBLIC WAYS; AND ITS SPECIFIC PROVISIONS DO NOT
OFFEND AGAINST THE CONSTITUTIONAL GUARANTEES OF THE FOURTEENTH
AMENDMENT.  LOVELL V. GRIFFIN, 303 U.S. 444; HAGUE V. C.I.O., 307 U.S.
496. 

THE CONSTRUCTION BY THE COURT BELOW OF THE WORD "DISTRIBUTION," AS
USED IN THE ORDINANCE, SHOULD BE ADOPTED. 

THE HISTORIC CONCEPT OF LIBERTY OF THE PRESS SET FORTH BY THIS COURT
IN NEAR V. MINNESOTA, 283 U.S. 697, AND LIKE CASES IS NOT AT WAR WITH
THIS REGULATION.  HERE THERE IS NO INTENT TO STOP ALL FREE
DISSEMINATION OF LITERATURE AND OPINION, BUT ONLY SUCH A PARTICULAR
EXERCISE OF IT AS WILL INTERFERE WITH TRAVELERS IN THE PUBLIC WAY.  SEE
OP. OF COURT BELOW.  CF. COMMONWEALTH V. KIMBALL, 13 N.E.2D 18; IN RE
ANDERSON, 69 NEB. 686; MILWAUKEE V. KASSEN, 203 WIS. 383; DAVIS V.
MASSACHUSETTS, 167 U.S. 43. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

FOUR CASES ARE HERE, EACH OF WHICH PRESENTS THE QUESTION WHETHER
REGULATIONS EMBODIED IN A MUNICIPAL ORDINANCE ABRIDGE THE FREEDOM OF
SPEECH AND OF THE PRESS SECURED AGAINST STATE INVASION BY THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION.  FN1

                               NO. 13. 

THE MUNICIPAL CODE OF THE CITY OF LOS ANGELES, 1936, PROVIDES: 

"SEC. 28.00.  'HAND-BILL' SHALL MEAN ANY HAND-BILL, DODGER,
COMMERCIAL ADVERTISING CIRCULAR, FOLDER, BOOKLET, LETTER, CARD,
PAMPHLET, SHEET, POSTER, STICKER, BANNER, NOTICE OR OTHER WRITTEN,
PRINTED OR PAINTED MATTER CALCULATED TO ATTRACT ATTENTION OF THE
PUBLIC." 

"SEC. 28.01.  NO PERSON SHALL DISTRIBUTE ANY HAND-BILL TO OR AMONG
PEDESTRIANS ALONG OR UPON ANY STREET, SIDEWALK OR PARK, OR TO
PASSENGERS ON ANY STREET CAR, OR THROW, PLACE OR ATTACH ANY HAND-BILL
IN, TO, OR UPON ANY AUTOMOBILE OR OTHER VEHICLE." 

THE APPELLANT WAS CHARGED IN THE MUNICIPAL COURT WITH A VIOLATION OF
SEC. 28.01.  UPON HIS TRIAL IT WAS PROVED THAT HE DISTRIBUTED HANDBILLS
TO PEDESTRIANS ON A PUBLIC SIDEWALK AND HAD MORE THAN THREE HUNDRED IN
HIS POSSESSION FOR THAT PURPOSE.  JUDGMENT OF CONVICTION WAS ENTERED
AND SENTENCE IMPOSED.  THE SUPERIOR COURT OF LOS ANGELES COUNTY
AFFIRMED THE JUDGMENT.  FN2  THAT COURT BEING THE HIGHEST COURT IN THE
STATE AUTHORIZED TO PASS UPON SUCH A CASE, AN APPEAL TO THIS COURT WAS
ALLOWED. 

THE HANDBILL WHICH THE APPELLANT WAS DISTRIBUTING BORE A NOTICE OF A
MEETING TO BE HELD UNDER THE AUSPICES OF "FRIENDS LINCOLN BRIGADE" AT
WHICH SPEAKERS WOULD DISCUSS THE WAR IN SPAIN.  FN2 

THE COURT BELOW SUSTAINED THE VALIDITY OF THE ORDINANCE ON THE GROUND
THAT EXPERIENCE SHOWS LITTERING OF THE STREETS RESULTS FROM THE
INDISCRIMINATE DISTRIBUTION OF HANDBILLS.  FN3  IT HELD THAT THE RIGHT
OF FREE EXPRESSION IS NOT ABSOLUTE BUT SUBJECT TO REASONABLE REGULATION
AND THAT THE ORDINANCE DOES NOT TRANSGRESS THE BOUNDS OF
REASONABLENESS.  LOVELL V. CITY OF GRIFFIN, 303 U.S. 444, WAS
DISTINGUISHED ON THE GROUND THAT THE ORDINANCE THERE IN QUESTION
PROHIBITED DISTRIBUTION ANYWHERE WITHIN THE CITY WHILE THE ONE INVOLVED
FORBIDS DISTRIBUTION IN A VERY LIMITED NUMBER OF PLACES. 

                             NO. 18. 

AN ORDINANCE OF THE CITY OF MILWAUKEE, WISCONSIN, PROVIDES:  "IT IS
HEREBY MADE UNLAWFUL FOR ANY PERSON  ...  TO  ...  THROW  ...  PAPER
...  OR TO CIRCULATE OR DISTRIBUTE ANY CIRCULAR, HAND-BILLS, CARDS,
POSTERS, DODGERS, OR OTHER PRINTED OR ADVERTISING MATTER  ...  IN OR
UPON ANY SIDEWALK, STREET, ALLEY, WHARF, BOAT LANDING, DOCK OR OTHER
PUBLIC PLACE, PARK OR GROUND WITHIN THE CITY OF MILWAUKEE.  ...  " 

THE PETITIONER, WHO WAS ACTING AS A PICKET, STOOD IN THE STREET IN
FRONT OF A MEAT MARKET AND DISTRIBUTED TO PASSING PEDESTRIANS HAND
BILLS WHICH PERTAINED TO A LABOR DISPUTE WITH THE MEAT MARKET, SET
FORTH THE POSITION OF ORGANIZED LABOR WITH RESPECT TO THE MARKET, AND
ASKED CITIZENS TO REFRAIN FROM PATRONIZING IT.  SOME OF THE BILLS WERE
THROWN IN THE STREET BY THE PERSONS TO WHOM THEY WERE GIVEN AND IT
RESULTED THAT MANY OF THE PAPERS LAY IN THE GUTTER AND IN THE STREET. 
THE POLICE OFFICERS WHO ARRESTED THE PETITIONER AND CHARGED HIM WITH A
VIOLATION OF THE ORDINANCE DID NOT ARREST ANY OF THOSE WHO RECEIVED THE
BILLS AND THREW THEM AWAY.  THE TESTIMONY WAS THAT THE ACTION OF THE
OFFICERS ACCORDED WITH A POLICY OF THE POLICE DEPARTMENT IN ENFORCEMENT
OF THE ORDINANCE TO THE EFFECT THAT, WHEN SUCH DISTRIBUTION RESULTED IN
LITTERING OF THE STREETS THE ONE WHO WAS THE CAUSE OF THE LITTERING,
THAT IS, HE WHO PASSED OUT THE BILLS, WAS ARRESTED RATHER THAN THOSE
WHO RECEIVED THEM AND AFTERWARDS THREW THEM AWAY.  THE MILWAUKEE COUNTY
COURT FOUND THE PETITIONER GUILTY AND FINED HIM.  ON APPEAL THE
JUDGMENT WAS AFFIRMED BY THE SUPREME COURT.  FN4 

THE COURT HELD THAT THE PURPOSE OF THE ORDINANCE WAS TO PREVENT AN
UNSIGHTLY, UNTIDY, AND OFFENSIVE CONDITION OF THE SIDEWALKS.  IT
DISTINGUISHED LOVELL V. CITY OF GRIFFIN, SUPRA, ON THE GROUND THAT THE
ORDINANCE THERE CONSIDERED MANIFESTLY WAS NOT AIMED AT PREVENTION OF
LITTERING OF THE STREETS.  THE COURT APPROVED THE ADMINISTRATIVE
CONSTRUCTION OF THE ORDINANCE BY THE POLICE OFFICIALS AND FELT THAT
THIS CONSTRUCTION SUSTAINED ITS VALIDITY.  THE COURT SAID:  "UNLESS AND
UNTIL DELIVERY OF THE HAND-BILLS WAS SHOWN TO RESULT IN A LITTERING OF
THE STREETS THEIR DISTRIBUTION WAS NOT INTERFERED WITH." 
                NO. 29. 

AN ORDINANCE OF THE CITY OF WORCESTER, MASSACHUSETTS, PROVIDES:  "NO
PERSON SHALL DISTRIBUTE IN, OR PLACE UPON ANY STREET OR WAY, ANY
PLACARD, HANDBILL, FLYER, POSTER, ADVERTISEMENT OR PAPER OF ANY
DESCRIPTION.  ...  " 

THE APPELLANTS DISTRIBUTED IN A STREET LEAFLETS ANNOUNCING A PROTEST
MEETING IN CONNECTION WITH THE ADMINISTRATION OF STATE UNEMPLOYMENT
INSURANCE.  THEY DID NOT THROW ANY OF THE LEAFLETS ON THE SIDEWALK OR
SCATTER THEM.  SOME OF THOSE TO WHOM THE LEAFLETS WERE HANDED THREW
THEM ON THE SIDEWALK AND THE STREET, WITH THE RESULT THAT SOME THIRTY
WERE LYING ABOUT.    THE APPELLANTS WERE ARRESTED AND CHARGED WITH A
VIOLATION OF THE ORDINANCE.  THE SUPERIOR COURT OF WORCESTER COUNTY
RENDERED A JUDGMENT OF CONVICTION AND IMPOSED SENTENCE.  THE SUPREME
JUDICIAL COURT OVERRULED EXCEPTIONS.  FN5  THAT COURT HELD THE
ORDINANCE A VALID REGULATION OF THE USE OF THE STREETS AND SOUGHT THUS
TO DISTINGUISH IT FROM THE ONE INVOLVED IN LOVELL V. CITY OF GRIFFIN,
SUPRA, WHICH THE COURT SAID WAS NOT SUCH A REGULATION.  REFERRING TO
THE ORDINANCE THE COURT SAID: "IT INTERFERES IN NO WAY WITH THE
PUBLICATION OF ANYTHING IN THE CITY OF WORCESTER, EXCEPT ONLY THAT IT
EXCLUDES THE PUBLIC STREETS AND WAYS FROM THE PLACES AVAILABLE FOR FREE
DISTRIBUTION.  IT LEAVES OPEN FOR SUCH DISTRIBUTION ALL OTHER PLACES IN
THE CITY, PUBLIC AND PRIVATE." 

                               NO. 11. 

AN ORDINANCE OF THE TOWN OF IRVINGTON, NEW JERSEY, PROVIDES:  "NO
PERSON EXCEPT AS IN THIS ORDINANCE PROVIDED SHALL CANVASS, SOLICIT,
DISTRIBUTE CIRCULARS, OR OTHER MATTER, OR CALL FROM HOUSE TO HOUSE IN
THE TOWN OF IRVINGTON WITHOUT FIRST HAVING REPORTED TO AND RECEIVED A
WRITTEN PERMIT FROM THE CHIEF OF POLICE OR THE OFFICER IN CHARGE OF
POLICE HEADQUARTERS."  IT FURTHER ENACTS THAT A PERMIT TO CANVASS SHALL
SPECIFY THE NUMBER OF HOURS OR DAYS IT WILL BE IN EFFECT; THAT THE
CANVASSER MUST MAKE AN APPLICATION GIVING HIS NAME, ADDRESS, AGE,
HEIGHT, WEIGHT, PLACE OF BIRTH, WHETHER OR NOT PREVIOUSLY ARRESTED OR
CONVICTED OF CRIME, BY WHOM EMPLOYED, ADDRESS OF EMPLOYER, CLOTHING
WORN, AND DESCRIPTION OF PROJECT FOR WHICH HE IS CANVASSING; THAT EACH
APPLICANT SHALL BE FINGERPRINTED AND PHOTOGRAPHED; THAT THE CHIEF OF
POLICE SHALL REFUSE A PERMIT IN ALL CASES WHERE THE APPLICATION, OR
FURTHER INVESTIGATION MADE AT THE OFFICER'S DISCRETION, SHOWS THAT THE
CANVASSER IS NOT OF GOOD CHARACTER OR IS CANVASSING FOR A PROJECT NOT
FREE FROM FRAUD; THAT CANVASSING MAY ONLY BE DONE BETWEEN 9 A.M. AND 5
P.M.; THAT THE CANVASSER MUST FURNISH A PHOTOGRAPH OF HIMSELF WHICH IS
TO BE ATTACHED TO THE PERMIT; THAT THE PERMITTEE MUST EXHIBIT THE
PERMIT TO ANY POLICE OFFICER OR OTHER PERSON UPON REQUEST, MUST BE
COURTEOUS TO ALL PERSONS IN CANVASSING, MUST NOT IMPORTUNE OR ANNOY THE
TOWN'S INHABITANTS OR CONDUCT HIMSELF IN AN UNLAWFUL MANNER AND MUST,
AT THE EXPIRATION OF THE PERMIT, SURRENDER IT AT POLICE HEADQUARTERS. 
PERSONS DELIVERING GOODS, MERCHANDISE, OR OTHER ARTICLES IN THE REGULAR
COURSE OF BUSINESS TO THE PREMISES OF PERSONS ORDERING, OR ENTITLED TO
RECEIVE THE SAME, ARE EXEMPTED FROM THE OPERATION OF THE ORDINANCE. 
VIOLATION IS PUNISHABLE BY FINE OR IMPRISONMENT. 

THE PETITIONER WAS ARRESTED AND CHARGED WITH CANVASSING WITHOUT A
PERMIT.  THE PROOFS SHOW THAT SHE IS A MEMBER OF THE WATCH TOWER BIBLE
AND TRACT SOCIETY AND, AS SUCH, CERTIFIED BY THE SOCIETY TO BE ONE OF
"JEHOVAH'S WITNESSES."  IN THIS CAPACITY SHE CALLED FROM HOUSE TO HOUSE
IN THE TOWN AT ALL HOURS OF THE DAY AND NIGHT AND SHOWED TO THE
OCCUPANTS A SO-CALLED TESTIMONY AND IDENTIFICATION CARD SIGNED BY THE
SOCIETY.  THE CARD STATED THAT SHE WOULD LEAVE SOME BOOKLETS DISCUSSING
PROBLEMS AFFECTING THE PERSON INTERVIEWED; AND THAT, BY CONTRIBUTING A
SMALL SUM, THAT PERSON WOULD MAKE POSSIBLE THE PRINTING OF MORE
BOOKLETS WHICH COULD BE PLACED IN THE HANDS OF OTHERS.  THE CARD
CERTIFIED THAT THE PETITIONER WAS AN ORDAINED MINISTER SENT FORTH BY
THE SOCIETY, WHICH IS ORGANIZED TO PREACH THE GOSPEL OF GOD'S KINGDOM,
AND CITED PASSAGES FROM THE BIBLE WITH RESPECT TO THE OBLIGATION SO TO
PREACH.  THE PETITIONER LEFT, OR OFFERED TO LEAVE, THE BOOKS OR
BOOKLETS WITH THE OCCUPANTS OF THE HOUSES VISITED.  SHE DID NOT APPLY
FOR, OR OBTAIN, A PERMIT PURSUANT TO THE ORDINANCE BECAUSE SHE
CONSCIENTIOUSLY BELIEVED THAT SO TO DO WOULD BE AN ACT OF DISOBEDIENCE
TO THE COMMAND OF ALMIGHTY GOD. 

THE PETITIONER WAS CONVICTED IN THE RECORDER'S COURT.  THE COURT OF
COMMON PLEAS AFFIRMED THE JUDGMENT.  ON A FURTHER APPEAL THE SUPREME
COURT AFFIRMED.  FN6  THE COURT OF ERRORS AND APPEALS AFFIRMED THE
JUDGMENT OF THE SUPREME COURT.  FN7 

THE SUPREME COURT HELD THAT THE PETITIONER'S CONDUCT AMOUNTED TO THE
SOLICITATION AND ACCEPTANCE OF MONEY CONTRIBUTIONS WITHOUT A PERMIT,
AND HELD THE ORDINANCE PROHIBITING SUCH ACTION A VALID REGULATION,
AIMED AT PROTECTING OCCUPANTS AND OTHERS FROM DISTURBANCE AND ANNOYANCE
AND PREVENTING UNKNOWN STRANGERS FROM VISITING HOUSES BY DAY AND
NIGHT.  IT OVERRULED THE PETITIONER'S CONTENTION THAT THE MEASURE
DENIES OR UNREASONABLY RESTRICTS FREEDOM OF SPEECH OR FREEDOM OF THE
PRESS.  THE COURT OF ERRORS AND APPEALS THOUGHT LOVELL V. CITY OF
GRIFFIN, SUPRA, NOT CONTROLLING, SINCE THE ORDINANCE IN THAT CASE
PROHIBITED ALL DISTRIBUTION OF PRINTED MATTER AND WAS NOT LIMITED TO
WAYS WHICH MIGHT BE REGARDED AS CONSISTENT WITH THE MAINTENANCE OF
PUBLIC ORDER OR AS INVOLVING DISORDERLY CONDUCT, MOLESTATION OF
INHABITANTS, OR MISUSE OR LITTERING OF THE STREETS, WHEREAS THE
ORDINANCE HERE INVOLVED IS AIMED AT CANVASSING OR SOLICITING, SUBJECTS
NOT EMBRACED IN THAT CONDEMNED IN THE LOVELL CASE.  THE COURT SAID:  "A
MUNICIPALITY MAY PROTECT ITS CITIZENS AGAINST FRAUDULENT SOLICITATION
AND, WHEN IT ENACTS AN ORDINANCE TO DO SO, ALL PERSONS ARE REQUIRED TO
ABIDE THEREBY.  THE ORDINANCE IN QUESTION WAS EVIDENTLY DESIGNED FOR
THAT PURPOSE  ...  " 

THE FREEDOM OF SPEECH AND OF THE PRESS SECURED BY THE FIRST AMENDMENT
AGAINST ABRIDGMENT BY THE UNITED STATES IS SIMILARLY SECURED TO ALL
PERSONS BY THE FOURTEENTH AGAINST ABRIDGMENT BY A STATE.  FN8 

ALTHOUGH A MUNICIPALITY MAY ENACT REGULATIONS IN THE INTEREST OF THE
PUBLIC SAFETY, HEALTH, WELFARE OR CONVENIENCE, THESE MAY NOT ABRIDGE
THE INDIVIDUAL LIBERTIES SECURED BY THE CONSTITUTION TO THOSE WHO WISH
TO SPEAK, WRITE, PRINT OR CIRCULATE INFORMATION OR OPINION. 

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. 

THIS COURT HAS CHARACTERIZED THE FREEDOM OF SPEECH AND THAT OF THE
PRESS AS FUNDAMENTAL PERSONAL RIGHTS AND LIBERTIES.  FN9  THE PHRASE IS
NOT AN EMPTY ONE AND WAS NOT LIGHTLY USED.  IT REFLECTS THE BELIEF OF
THE FRAMERS OF THE CONSTITUTION THAT EXERCISE OF THE RIGHTS LIES AT THE
FOUNDATION OF FREE GOVERNMENT BY FREE MEN.  IT STRESSES, AS DO MANY
OPINIONS OF THIS COURT, THE IMPORTANCE OF PREVENTING THE RESTRICTION OF
ENJOYMENT OF THESE LIBERTIES. 

IN EVERY CASE, THEREFORE, WHERE LEGISLATIVE ABRIDGMENT OF THE RIGHTS
IS ASSERTED, THE COURTS SHOULD BE ASTUTE TO EXAMINE THE EFFECT OF THE
CHALLENGED LEGISLATION.  MERE LEGISLATIVE PREFERENCES OR BELIEFS
RESPECTING MATTERS OF PUBLIC CONVENIENCE MAY WELL SUPPORT REGULATION
DIRECTED AT OTHER PERSONAL ACTIVITIES, BUT BE INSUFFICIENT TO JUSTIFY
SUCH AS DIMINISHES THE EXERCISE OF RIGHTS SO VITAL TO THE MAINTENANCE
OF DEMOCRATIC INSTITUTIONS.  AND SO, AS CASES ARISE, THE DELICATE AND
DIFFICULT TASK FALLS UPON THE COURTS TO WEIGH THE CIRCUMSTANCES AND TO
APPRAISE THE SUBSTANTIALITY OF THE REASONS ADVANCED IN SUPPORT OF THE
REGULATION OF THE FREE ENJOYMENT OF THE RIGHTS. 

IN LOVELL V. CITY OF GRIFFIN, SUPRA, THIS COURT HELD VOID AN ORDINANCE
WHICH FORBADE THE DISTRIBUTION BY HAND OR OTHERWISE OF LITERATURE OF
ANY KIND WITHOUT WRITTEN PERMISSION FROM THE CITY MANAGER.  THE OPINION
POINTED OUT THAT THE ORDINANCE WAS NOT LIMITED TO OBSCENE AND IMMORAL
LITERATURE OR THAT WHICH ADVOCATED UNLAWFUL CONDUCT, PLACED NO LIMIT ON
THE PRIVILEGE OF DISTRIBUTION IN THE INTEREST OF PUBLIC ORDER, WAS NOT
AIMED TO PREVENT MOLESTATION OF INHABITANTS OR MISUSE OR LITTERING OF
STREETS, AND WAS WITHOUT LIMITATION AS TO TIME OR PLACE OF
DISTRIBUTION.  THE COURT SAID THAT, WHATEVER THE MOTIVE, THE ORDINANCE
WAS BAD BECAUSE IT IMPOSED PENALTIES FOR THE DISTRIBUTION OF PAMPHLETS,
WHICH HAD BECOME HISTORICAL WEAPONS IN THE DEFENSE OF LIBERTY, BY
SUBJECTING SUCH DISTRIBUTION TO LICENSE AND CENSORSHIP; AND THAT THE
ORDINANCE WAS VOID ON ITS FACE, BECAUSE IT ABRIDGED THE FREEDOM OF THE
PRESS.  SIMILARLY IN HAGUE V. C.I.O., 307 U.S. 496, AN ORDINANCE WAS
HELD VOID ON ITS FACE BECAUSE IT PROVIDED FOR PREVIOUS ADMINISTRATIVE
CENSORSHIP OF THE EXERCISE OF THE RIGHT OF SPEECH AND ASSEMBLY IN
APPROPRIATE PUBLIC PLACES. 

THE LOS ANGELES, THE MILWAUKEE, AND THE WORCESTER ORDINANCES UNDER
REVIEW DO NOT PURPORT TO LICENSE DISTRIBUTION BUT ALL OF THEM
ABSOLUTELY PROHIBIT IT IN THE STREETS AND, ONE OF THEM, IN OTHER PUBLIC
PLACES AS WELL. 

THE MOTIVE OF THE LEGISLATION UNDER ATTACK IN NUMBERS 13, 18, AND 29
IS HELD BY THE COURTS BELOW TO BE THE PREVENTION OF LITTERING OF THE
STREETS AND, ALTHOUGH THE ALLEGED OFFENDERS WERE NOT CHARGED WITH
THEMSELVES SCATTERING PAPER IN THE STREETS, THEIR CONVICTIONS WERE
SUSTAINED UPON THE THEORY THAT DISTRIBUTION BY THEM ENCOURAGED OR
RESULTED IN SUCH LITTERING.  WE ARE OF OPINION THAT THE PURPOSE TO KEEP
THE STREETS CLEAN AND OF GOOD APPEARANCE IS INSUFFICIENT TO JUSTIFY AN
ORDINANCE WHICH PROHIBITS A PERSON RIGHTFULLY ON A PUBLIC STREET FROM
HANDING LITERATURE TO ONE WILLING TO RECEIVE IT.  ANY BURDEN IMPOSED
UPON THE CITY AUTHORITIES IN CLEANING AND CARING FOR THE STREETS AS AN
INDIRECT CONSEQUENCE OF SUCH DISTRIBUTION RESULTS FROM THE
CONSTITUTIONAL PROTECTION OF THE FREEDOM OF SPEECH AND PRESS.  THIS
CONSTITUTIONAL PROTECTION DOES NOT DEPRIVE A CITY OF ALL POWER TO
PREVENT STREET LITTERING.  THERE ARE OBVIOUS METHODS OF PREVENTING
LITTERING.  AMONGST THESE IS THE PUNISHMENT OF THOSE WHO ACTUALLY THROW
PAPERS ON THE STREETS. 

IT IS ARGUED THAT THE CIRCUMSTANCE THAT IN THE ACTUAL ENFORCEMENT OF
THE MILWAUKEE ORDINANCE THE DISTRIBUTOR IS ARRESTED ONLY IF THOSE WHO
RECEIVE THE LITERATURE THROW IT IN THE STREETS, RENDERS IT VALID.  BUT,
EVEN AS THUS CONSTRUED, THE ORDINANCE CANNOT BE ENFORCED WITHOUT
UNCONSTITUTIONALLY ABRIDGING THE LIBERTY OF FREE SPEECH.  AS WE HAVE
POINTED OUT, THE PUBLIC CONVENIENCE IN RESPECT OF CLEANLINESS OF THE
STREETS DOES NOT JUSTIFY AN EXERTION OF THE POLICE POWER WHICH INVADES
THE FREE COMMUNICATION OF INFORMATION AND OPINION SECURED BY THE
CONSTITUTION. 

IT IS SUGGESTED THAT THE LOS ANGELES AND WORCESTER ORDINANCES ARE
VALID BECAUSE THEIR OPERATION IS LIMITED TO STREETS AND ALLEYS AND
LEAVES PERSONS FREE TO DISTRIBUTE PRINTED MATTER IN OTHER PUBLIC
PLACES.  BUT, AS WE HAVE SAID, THE STREETS ARE NATURAL AND PROPER
PLACES FOR THE DISSEMINATION OF INFORMATION AND OPINION; AND ONE IS NOT
TO HAVE THE EXERCISE OF HIS LIBERTY OF EXPRESSION IN APPROPRIATE PLACES
ABRIDGED ON THE PLEA THAT IT MAY BE EXERCISED IN SOME OTHER PLACE. 

WHILE IT AFFECTS OTHERS, THE IRVINGTON ORDINANCE DRAWN IN QUESTION IN
NO. 11, AS CONSTRUED BELOW, AFFECTS ALL THOSE, WHO, LIKE THE
PETITIONER, DESIRE TO IMPART INFORMATION AND OPINION TO CITIZENS AT
THEIR HOMES.  IF IT COVERS THE PETITIONER'S ACTIVITIES IT EQUALLY
APPLIES TO ONE WHO WISHES TO PRESENT HIS VIEWS ON POLITICAL, SOCIAL OR
ECONOMIC QUESTIONS.  THE ORDINANCE IS NOT LIMITED TO THOSE WHO CANVASS
FOR PRIVATE PROFIT; NOR IS IT MERELY THE COMMON TYPE OF ORDINANCE
REQUIRING SOME FORM OF REGISTRATION OR LICENSE OF HAWKERS, OR
PEDDLERS.  IT IS NOT A GENERAL ORDINANCE TO PROHIBIT TRESPASSING.  IT
BANS UNLICENSED COMMUNICATION OF ANY VIEWS OR THE ADVOCACY OF ANY CAUSE
FROM DOOR TO DOOR, AND PERMITS CANVASSING ONLY SUBJECT TO THE POWER OF
A POLICE OFFICER TO DETERMINE, AS A CENSOR, WHAT LITERATURE MAY BE
DISTRIBUTED FROM HOUSE TO HOUSE AND WHO MAY DISTRIBUTE IT.  THE
APPLICANT MUST SUBMIT TO THAT OFFICER'S JUDGMENT EVIDENCE AS TO HIS
GOOD CHARACTER AND AS TO THE ABSENCE OF FRAUD IN THE "PROJECT" HE
PROPOSES TO PROMOTE OR THE LITERATURE HE INTENDS TO DISTRIBUTE, AND
MUST UNDERGO A BURDENSOME AND INQUISITORIAL EXAMINATION, INCLUDING
PHOTOGRAPHING AND FINGERPRINTING.  IN THE END, HIS LIBERTY TO
COMMUNICATE WITH THE RESIDENTS OF THE TOWN AT THEIR HOMES DEPENDS UPON
THE EXERCISE OF THE OFFICER'S DISCRETION. 

AS SAID IN LOVELL V. CITY OF GRIFFIN, SUPRA, PAMPHLETS HAVE PROVED
MOST EFFECTIVE INSTRUMENTS IN THE DISSEMINATION OF OPINION.  AND
PERHAPS THE MOST EFFECTIVE WAY OF BRINGING THEM TO THE NOTICE OF
INDIVIDUALS IS THEIR DISTRIBUTION AT THE HOMES OF THE PEOPLE.  ON THIS
METHOD OF COMMUNICATION THE ORDINANCE IMPOSES CENSORSHIP, ABUSE OF
WHICH ENGENDERED THE STRUGGLE IN ENGLAND WHICH EVENTUATED IN THE
ESTABLISHMENT OF THE DOCTRINE OF THE FREEDOM OF THE PRESS EMBODIED IN
OUR CONSTITUTION.  TO REQUIRE A CENSORSHIP THROUGH LICENSE WHICH MAKES
IMPOSSIBLE THE FREE AND UNHAMPERED DISTRIBUTION OF PAMPHLETS STRIKES AT
THE VERY HEART OF THE CONSTITUTIONAL GUARANTEES.    CONCEDING THAT
FRAUDULENT APPEALS MAY BE MADE IN THE NAME OF CHARITY AND RELIGION, WE
HOLD A MUNICIPALITY CANNOT, FOR THIS REASON, REQUIRE ALL WHO WISH TO
DISSEMINATE IDEAS TO PRESENT THEM FIRST TO POLICE AUTHORITIES FOR THEIR
CONSIDERATION AND APPROVAL, WITH A DISCRETION IN THE POLICE TO SAY SOME
IDEAS MAY, WHILE OTHERS MAY NOT, BE CARRIED TO THE HOMES OF CITIZENS;
SOME PERSONS MAY, WHILE OTHERS MAY NOT, DISSEMINATE INFORMATION FROM
HOUSE TO HOUSE.  FRAUDS MAY BE DENOUNCED AS OFFENSES AND PUNISHED BY
LAW.  TRESPASSES MAY SIMILARLY BE FORBIDDEN.  IF IT IS SAID THAT THESE
MEANS ARE LESS EFFICIENT AND CONVENIENT THAN BESTOWAL OF POWER ON
POLICE AUTHORITIES TO DECIDE WHAT INFORMATION MAY BE DISSEMINATED FROM
HOUSE TO HOUSE, AND WHO MAY IMPART THE INFORMATION, THE ANSWER IS THAT
CONSIDERATIONS OF THIS SORT DO NOT EMPOWER A MUNICIPALITY TO ABRIDGE
FREEDOM OF SPEECH AND PRESS. 

WE ARE NOT TO BE TAKEN AS HOLDING THAT COMMERCIAL SOLICITING AND
CANVASSING MAY NOT BE SUBJECTED TO SUCH REGULATION AS THE ORDINANCE
REQUIRES.  NOR DO WE HOLD THAT THE TOWN MAY NOT FIX REASONABLE HOURS
WHEN CANVASSING MAY BE DONE BY PERSONS HAVING SUCH OBJECTS AS THE
PETITIONER.  DOUBTLESS THERE ARE OTHER FEATURES OF SUCH ACTIVITIES
WHICH MAY BE REGULATED IN THE PUBLIC INTEREST WITHOUT PRIOR LICENSING
OR OTHER INVASION OF CONSTITUTIONAL LIBERTY.  WE DO HOLD, HOWEVER, THAT
THE ORDINANCE IN QUESTION, AS APPLIED TO THE PETITIONER'S CONDUCT, IS
VOID, AND SHE CANNOT BE PUNISHED FOR ACTING WITHOUT A PERMIT. 

THE JUDGMENT IN EACH CASE IS REVERSED AND THE CAUSES ARE REMANDED FOR
FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  ON ACCOUNT OF THE IMPORTANCE OF THE QUESTION WE GRANTED
CERTIORARI IN TWO OF THE CASES, AND NOTED JURISDICTION IN THE OTHERS. 

FN2  33 CAL. APP.2D 747; 85 P.2D 231. 

FN3  ON THE HAND-BILL WERE THE WORDS "ADMISSION 25[ AND 50[."  THE
SUPERIOR COURT ADVERTED TO THESE AND SAID:  "WHATEVER TRAFFIC IN IDEAS
THE FRIENDS LINCOLN BRIGADE MAY HAVE PLANNED FOR THE MEETING, THE CARDS
THEMSELVES SEEM TO FALL WITHIN THE CLASSIFICATION OF COMMERCIAL
ADVERTISING RATHER THAN THE EXPRESSION OF ONE'S VIEWS.  BUT IF THIS BE
SO, OUR CONCLUSION IS NOT THEREBY CHANGED." 

FN4  230 WIS. 131; 283 N.W. 301. 

FN5  MASS. ADV.  1938, 1969; 18 N.E.2D 166. 

FN6  120 N.J. LAW 460; 200 A. 799. 

FN7  121 N.J. LAW 542; 3 A.2D 609. 

FN8  GITLOW V. NEW YORK, 268 U.S. 652; WHITNEY V. CALIFORNIA, 274
U.S. 357; STROMBERG V. CALIFORNIA, 283 U.S. 359; GROSJEAN V. AMERICAN
PRESS CO., 297 U.S. 233; DEJONGE V. OREGON, 299 U.S. 353; HERNDON V.
LOWRY, 301 U.S. 242; LOVELL V. CITY OF GRIFFIN, 303 U.S. 444.  THERE IS
NO AVERMENT OR PROOF IN ANY OF THE CASES THAT THE APPELLANTS OR
PETITIONERS ARE CITIZENS OF THE UNITED STATES, AND IN THE YOUNG CASE,
NO. 13, THE APPLICABLE PROVISIONS OF THE MUNICIPAL CODE WERE CHALLENGED
ON THE SOLE GROUND THAT THEY INFRINGED THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  CF. NEW YORK EX REL. COHN V. GRAVES, 300 U.S.
308, 317; NORTHWESTERN BELL TELEPHONE CO. V. NEBRASKA STATE RY. COMM'N,
297 U.S. 471 AT 473. 

FN9  GROSJEAN V. AMERICAN PRESS CO., SUPRA, P. 244; DEJONGE V.
OREGON, SUPRA, P. 364; LOVELL V. CITY OF GRIFFIN, SUPRA, P. 450. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE JUDGMENT IN EACH CASE
SHOULD BE AFFIRMED. 
..END :








NEIRBO CO. V. BETHLEHEM CORP., 308 U.S. 165 


NO. 38.  ARGUED OCTOBER 17, 18, 1939 - DECIDED NOVEMBER 22, 1939.  - 103
F.2D 765, REVERSED. 


1.  SECTION 51 OF THE JUDICIAL CODE, AS AMENDED, WHICH PROVIDES THAT
"NO CIVIL SUIT SHALL BE BROUGHT IN ANY DISTRICT COURT AGAINST ANY
PERSON BY ANY ORIGINAL PROCESS OR PROCEEDING IN ANY OTHER DISTRICT THAN
THAT WHEREOF HE IS AN INHABITANT; 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," MERELY ACCORDS TO THE DEFENDANT
A PERSONAL PRIVILEGE OF OBJECTING TO THE VENUE OF SUITS BROUGHT AGAINST
HIM IN DISTRICTS WHEREIN UNDER THE SECTION HE MAY NOT BE COMPELLED TO
ANSWER.  P. 168. 

2.  THE PRIVILEGE ACCORDED BY SEC. 51 MAY BE LOST BY FAILURE TO
ASSERT IT SEASONABLY, BY FORMAL SUBMISSION IN A CAUSE, OR BY SUBMISSION
THROUGH CONDUCT.  P. 168. 

3.  SUCH SURRENDER OF THE PRIVILEGE MAY BE REGARDED NEGATIVELY AS A
WAIVER OR POSITIVELY AS A CONSENT TO BE SUED.  P. 168. 

4.  A DESIGNATION BY A FOREIGN CORPORATION, IN CONFORMITY WITH A
VALID STATUTE OF A STATE AND AS A CONDITION OF DOING BUSINESS WITHIN
IT, OF AN AGENT UPON WHOM SERVICE OF PROCESS MAY BE MADE, HELD AN
EFFECTIVE CONSENT TO BE SUED IN THE FEDERAL COURTS OF THAT STATE.  PP.
170, 174. 

5.  PRIOR TO THE AMENDMENT OF 1887, THE PROVISION WAS THAT "NO CIVIL
SUIT SHALL BE BROUGHT BEFORE EITHER OF SAID COURTS AGAINST ANY PERSON
BY ANY ORIGINAL PROCESS OR PROCEEDING IN ANY OTHER DISTRICT THAN THAT
WHEREOF HE IS AN INHABITANT, OR IN WHICH HE SHALL BE FOUND  ...  "
HELD, THE OMISSION BY THAT AMENDMENT OF THE WORDS "IN WHICH HE SHALL BE
FOUND" WAS NOT INTENDED TO AFFECT THE IMPLICATIONS OF A CONSENT TO BE
SUED AND WAS NOT DIRECTED TOWARD ANY CHANGE IN THE STATUS OF A
CORPORATE LITIGANT.  EX PARTE SCHOLLENBERGER, 96 U.S. 369, AND SOUTHERN
PACIFIC CO. V. DENTON, 146 U.S. 202, RECONCILED.  P. 171. 

6.  A STATE CONSTITUTIONALLY MAY REQUIRE A FOREIGN CORPORATION, AS A
CONDITION OF DOING A LOCAL BUSINESS, TO DESIGNATE AN AGENT UPON WHOM
SERVICE OF PROCESS MAY BE MADE.  P. 175. 

7.  THE FINDING IN THIS CASE THAT THE FOREIGN CORPORATION, BY ITS
DESIGNATION UNDER THE STATE LAW OF AN AGENT FOR THE SERVICE OF PROCESS,
HAD CONSENTED TO BE SUED IN THE COURTS OF THE STATE, FEDERAL AS WELL AS
STATE, IS NOT A SUBJECTION OF FEDERAL PROCEDURE TO THE REQUIREMENTS OF
STATE LAW, BUT A RECOGNITION THAT STATE LEGISLATION AND CONSENT OF
PARTIES MAY BRING ABOUT A STATE OF FACTS WHICH WILL AUTHORIZE THE
FEDERAL COURTS TO TAKE COGNIZANCE OF A CASE.  P. 175. 

NEIRBO CO. ET AL. V. BETHLEHEM SHIPBUILDING CORP., LTD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 307 U.S. 619, TO REVIEW THE AFFIRMANCE OF AN ORDER OF THE
DISTRICT COURT QUASHING SERVICE OF PROCESS ON THE RESPONDENT
CORPORATION AND DISMISSING AS TO IT THE PETITIONERS' BILL. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE TO REVIEW THE AFFIRMANCE BY THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT OF AN ORDER OF THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK SETTING ASIDE SERVICE OF PROCESS UPON
BETHLEHEM SHIPBUILDING CORPORATION, LTD. (HEREAFTER CALLED BETHLEHEM)
AND DISMISSING AS TO IT PETITIONERS' BILL, 103 F.2D 765.  THE SUIT WAS
BASED ON DIVERSITY OF CITIZENSHIP AND WAS NOT BROUGHT "IN THE DISTRICT
OF THE RESIDENCE OF EITHER THE PLAINTIFF OR THE DEFENDANT."  (SEC. 51
OF THE JUDICIAL CODE, ACT OF MARCH 3, 1887, 24 STAT. 552, AS CORRECTED
BY ACT OF AUGUST 13, 1888, 25 STAT. 433, 28 U.S.C. SEC. 112.)  FN1  WE
TOOK THE CASE, 307 U.S. 619, BECAUSE OF THE UNCERTAINTIES IN
APPLICATION OF SEC. 51, EMPHASIZED BY CONFLICT BETWEEN THE VIEWS BELOW
AND THOSE OF THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 
OKLAHOMA PACKING CO. V. OKLAHOMA GAS & ELEC.  CO., 100 F.2D 770.  THE
SOLE QUESTION IN THE CASE IS WHETHER SEC. 51 IS SATISFIED BY THE
DESIGNATION BY A FOREIGN CORPORATION OF AN AGENT FOR SERVICE OF
PROCESS, IN CONFORMITY WITH THE LAW OF A STATE IN WHICH SUIT IS BROUGHT
AGAINST IT IN ONE OF THE FEDERAL COURTS FOR THAT STATE. 

THE JURISDICTION OF THE FEDERAL COURTS - THEIR POWER TO ADJUDICATE -
IS A GRANT OF AUTHORITY TO THEM BY CONGRESS AND THUS BEYOND THE SCOPE
OF LITIGANTS TO CONFER.  BUT THE LOCALITY OF A LAW SUIT - THE PLACE
WHERE JUDICIAL AUTHORITY MAY BE EXERCISED - THOUGH DEFINED BY
LEGISLATION RELATES TO THE CONVENIENCE OF LITIGANTS AND AS SUCH IS
SUBJECT TO THEIR DISPOSITION.  THIS BASIC DIFFERENCE BETWEEN THE
COURT'S POWER AND THE LITIGANT'S CONVENIENCE IS HISTORIC IN THE FEDERAL
COURTS.  AFTER A PERIOD OF CONFUSING DEVIATION IT WAS FIRMLY
REESTABLISHED IN GENERAL INVESTMENT CO. V. LAKE SHORE RY. CO., 260 U.S.
261, AND LEE V. CHESAPEAKE & OHIO RY. CO., IBID. 653, OVER-RULING EX
PARTE WISNER, 203 U.S. 449, AND QUALIFYING IN RE MOORE, 209 U.S. 490. 
ALL THE PARTIES MAY BE NON-RESIDENTS OF THE DISTRICT WHERE SUIT IS
BROUGHT.  LEE V. CHESAPEAKE & OHIO RY. CO., SUPRA. SECTION 51 "MERELY
ACCORDS TO THE DEFENDANT A PERSONAL PRIVILEGE RESPECTING THE VENUE, OR
PLACE OF SUIT, WHICH HE MAY ASSERT, OR MAY WAIVE, AT HIS ELECTION." 
COMMERCIAL INS. CO. V. STONE CO., 278 U.S. 177, 179. 

BEING A PRIVILEGE, IT MAY BE LOST.  IT MAY BE LOST BY FAILURE TO
ASSERT IT SEASONABLY, BY FORMAL SUBMISSION IN A CAUSE, OR BY SUBMISSION
THROUGH CONDUCT.  COMMERCIAL INS. CO. V. STONE CO., SUPRA.  WHETHER
SUCH SURRENDER OF A PERSONAL IMMUNITY BE CONCEIVED NEGATIVELY AS A
WAIVER OR POSITIVELY AS A CONSENT TO BE SUED, IS MERELY AN EXPRESSION
OF LITERARY PREFERENCE.  THE ESSENCE OF THE MATTER IS THAT COURTS AFFIX
TO CONDUCT CONSEQUENCES AS TO PLACE OF SUIT CONSISTENT WITH THE POLICY
BEHIND SEC. 51, WHICH IS "TO SAVE DEFENDANTS FROM INCONVENIENCES TO
WHICH THEY MIGHT BE SUBJECTED IF THEY COULD BE COMPELLED TO ANSWER IN
ANY DISTRICT, OR WHEREVER FOUND."  GENERAL INVESTMENT CO. V. LAKE SHORE
RY. CO., SUPRA, AT 275. 

WHEN THE LITIGANTS ARE NATURAL PERSONS THE CONCEPTIONS UNDERLYING
VENUE PRESENT RELATIVELY FEW PROBLEMS IN APPLICATION.  BUT IN THE CASE
OF CORPORATE LITIGANTS THESE PROCEDURAL PROBLEMS ARE ENMESHED IN THE
WIDER INTRICACIES TOUCHING THE STATUS OF A CORPORATION IN OUR LAW.  THE
CORPORATE DEVICE IS ONE FORM OF ASSOCIATED ENTERPRISE, AND WHAT THE LAW
IN EFFECT HAS DONE IS TO ENFORCE RIGHTS AND DUTIES APPROPRIATE FOR
COLLECTIVE ACTIVITY.  CF. UNITED MINE WORKERS V. CORONADO COAL CO., 259
U.S. 344; PUERTO RICO V. RUSSELL & CO., 288 U.S. 476.  IT HAS DONE SO
LARGELY BY ASSIMILATING CORPORATIONS TO NATURAL PERSONS.  THE LONG,
TORTUOUS EVOLUTION OF THE METHODS WHEREBY FOREIGN CORPORATIONS GAINED
ACCESS TO COURTS OR COULD BE BROUGHT THERE, IS THE HISTORY OF JUDICIAL
GROPING FOR A RECONCILIATION BETWEEN THE PRACTICAL POSITION ACHIEVED BY
THE CORPORATION IN SOCIETY AND A NATURAL DESIRE TO CONFINE THE POWERS
OF THESE ARTIFICIAL CREATIONS.  FN2 

IT TOOK HALF A CENTURY OF LITIGATION IN THIS COURT FINALLY TO CONFER
ON A CORPORATION, THROUGH THE USE OF A FICTION,  FN3  CITIZENSHIP IN
THE CHARTERING STATE FOR JURISDICTIONAL PURPOSES.  COMPARE LAFAYETTE
INS. CO. V. FRENCH, 18 HOW.  404 WITH HOPE INS. CO. V. BOARDMAN, 5
CRANCH 57.  THROUGHOUT, THE MODE OF THOUGHT WAS METAPHORICAL.  THE
CLASSIC DOCTRINE WAS THAT A CORPORATION "MUST DWELL IN THE PLACE OF ITS
CREATION, AND CANNOT MIGRATE TO ANOTHER SOVEREIGNTY."  BANK OF AUGUSTA
V. EARLE, 13 PET. 519, 588.  LOGICALLY APPLIED, THIS THEORY OF NON
MIGRATION PREVENTED SUIT IN A NON-CHARTERING STATE, FOR THE CORPORATION
COULD NOT BE THERE.  FN4  AND SUCH WAS THE PRACTICE OF THE CIRCUIT
COURTS  FN5  UNTIL THE OPINION OF CHIEF JUSTICE WAITE IN EX PARTE
SCHOLLENBERGER, 96 U.S. 369, DISPLACED METAPHOR WITH COMMON SENSE.  THE
ESSENTIAL DIFFERENCE BETWEEN THE PRACTICE WHICH MR. JUSTICE NELSON  FN6
INITIATED AT CIRCUIT AND THE DECISION IN SCHOLLENBERGER'S CASE WAS NOT
A MATTER OF TECHNICAL LEGAL CONSTRUCTION, BUT A WAY OF LOOKING AT
CORPORATIONS.  MEN'S MINDS HAD BECOME HABITUATED TO CORPORATE
ACTIVITIES WHICH CROSSED STATE LINES.  THE FACT THAT CORPORATIONS DID
DO BUSINESS OUTSIDE THEIR ORIGINATING BOUNDS MADE INTOLERABLE THEIR
IMMUNITY FROM SUIT IN THE STATES OF THEIR ACTIVITIES.  AND SO THEY WERE
REQUIRED BY LEGISLATURES TO DESIGNATE AGENTS FOR SERVICE OF PROCESS IN
RETURN FOR THE PRIVILEGE OF DOING LOCAL BUSINESS.  THAT SERVICE UPON
SUCH AN AGENT, IN CONFORMITY WITH A VALID STATE STATUTE, CONSTITUTED
CONSENT TO BE SUED IN THE FEDERAL COURT AND THEREBY SUPPLANTED THE
IMMUNITY AS TO VENUE, WAS THE RATIONALE OF SCHOLLENBERGER'S CASE. 

TO BE SURE, THAT CASE AROSE UNDER THE JUDICIARY ACT OF 1875, 18 STAT.
470, THE LANGUAGE OF WHICH DIFFERED FROM THE ACT OF 1887, NOW SEC. 51
OF THE JUDICIAL CODE.  THE EARLIER PROVISION WAS AS FOLLOWS:  "AND NO
CIVIL SUIT SHALL BE BROUGHT BEFORE EITHER OF SAID COURTS AGAINST ANY
PERSON BY ANY ORIGINAL PROCESS OR PROCEEDING IN ANY OTHER DISTRICT THAN
THAT WHEREOF HE IS AN INHABITANT, OR IN WHICH HE SHALL BE FOUND  ...  "
THE ACT OF 1887 OMITTED THE WORDS "IN WHICH HE SHALL BE FOUND."  BUT,
OF COURSE, THE PHOENIX AND THE CLINTON INSURANCE COMPANY IN EX PARTE
SCHOLLENBERGER, SUPRA, WERE NOT GEOGRAPHICALLY "FOUND" IN PENNSYLVANIA,
AND CHIEF JUSTICE WAITE SO RECOGNIZED.  THEY WERE "FOUND" IN THE
EASTERN DISTRICT OF PENNSYLVANIA ONLY IN A METAPHORICAL SENSE, BECAUSE
THEY HAD CONSENTED TO BE SUED THERE BY COMPLYING WITH THE PENNSYLVANIA
LAW FOR DESIGNATING AN AGENT TO ACCEPT SERVICE.  NOT LESS THAN THREE
TIMES DOES THE OPINION POINT OUT THAT THE CORPORATION GAVE "CONSENT" TO
BE SUED; AND BECAUSE OF THIS CONSENT THE CHIEF JUSTICE ADDED THAT THE
CORPORATION WAS "FOUND" THERE.  BUT THE CRUX OF THE DECISION IS ITS
RELIANCE UPON TWO EARLIER CASES, RAILROAD COMPANY V. HARRIS, 12 WALL. 
65 AND LAFAYETTE INS. CO. V. FRENCH, 18 HOW.  404, RECOGNIZING THAT
"CONSENT" MAY GIVE "VENUE."  THE PHOENIX AND THE CLINTON INSURANCE
COMPANY CONSENTED NOT TO BE "FOUND" BUT TO BE SUED.  SINCE THE
CORPORATION HAD CONSENTED TO BE SUED IN THE COURTS OF THE STATE, THIS
COURT HELD THAT THE CONSENT EXTENDED TO THE FEDERAL COURTS SITTING IN
THAT STATE.  AS TO DIVERSITY CASES, CONGRESS HAS GIVEN THE FEDERAL
COURTS "COGNIZANCE, CONCURRENT WITH THE COURTS OF THE SEVERAL STATES." 
THE CONSENT, THEREFORE, EXTENDS TO ANY COURT SITTING IN THE STATE WHICH
APPLIES THE LAWS OF THE STATE.  FN7 

THE NOTION THAT THE 1887 AMENDMENT, BY ELIMINATING THE RIGHT TO SUE A
DEFENDANT IN THE DISTRICT "IN WHICH HE SHALL BE FOUND," WAS MEANT TO
AFFECT THE IMPLICATIONS OF A CONSENT TO BE SUED - IMPLICATIONS WHICH
WERE THE BASIS OF THE SCHOLLENBERGER DECISION - DERIVES FROM A
MISAPPLICATION OF THE PURPOSE OF CONGRESS TO CONTRACT DIVERSITY
JURISDICTION, BASED UPON A MISUNDERSTANDING OF THE LEGISLATIVE HISTORY
OF THE 1887 AMENDMENT.  FN8  THE DELETION OF "IN WHICH HE SHALL BE
FOUND" WAS NOT DIRECTED TOWARD ANY CHANGE IN THE STATUS OF A CORPORATE
LITIGANT.  THE RESTRICTION WAS DESIGNED TO SHUT THE DOOR AGAINST
SERVICE OF PROCESS UPON A NATURAL PERSON IN ANY PLACE WHERE HE MIGHT BE
CAUGHT.  IT CONFINED SUABILITY, EXCEPT WITH THE DEFENDANT'S CONSENT, TO
THE DISTRICT OF HIS PHYSICAL HABITATION.  INSOFAR AS THE 1887
LEGISLATION SHEDS ANY LIGHT UPON THE STATUS OF A CORPORATE LITIGANT IN
DIVERSITY SUITS, ITS SIGNIFICANCE LIES OUTSIDE THE OMISSION OF THE "HE
SHALL BE FOUND" CLAUSE.  THE FORM IN WHICH THAT ACT PASSED THE HOUSE OF
REPRESENTATIVES CONTAINED A PROVISION, WHOLLY DISTINCT FROM THE GENERAL
VENUE SECTION, RESTRICTING THE GROWING VOLUME OF LITIGATION DRAWN TO
THE FEDERAL COURTS BY THE FICTION OF CORPORATE CITIZENSHIP.  FN9  IT
PROHIBITED RESORT TO THE FEDERAL COURTS BY FOREIGN CORPORATIONS
AUTHORIZED TO DO A LOCAL BUSINESS.  THE SENATE REJECTED, AS IT HAD DONE
UPON THREE PREVIOUS OCCASIONS, THIS HOUSE PROPOSAL.  FN10  BUT THE
BILL, AS IT LEFT THE HOUSE, ALSO CONTAINED THE VENUE PROVISION, WITH
ITS OMISSION OF THE "FOUND" CLAUSE.  IT WOULD BE STRANGE INDEED IF THE
HOUSE IN SEC. 1 HAD DEALT WITH THE "VENUE" OF SUITS AGAINST CORPORATE
LITIGANTS WHO, LIKE THOSE INVOLVED IN THE SCHOLLENBERGER CASE, BY SEC.
3 OF THE SAME BILL WERE COMPLETELY BARRED FROM THE FEDERAL COURTS.  IT
WOULD BE STRANGER STILL IF, AFTER PASSING A DRASTIC MEASURE CURTAILING
RESORT BY FOREIGN CORPORATIONS TO THE FEDERAL COURTS, THE HOUSE HAD
ONLY SUCCEEDED IN GIVING DISCRIMINATORY FREEDOM TO FOREIGN CORPORATIONS
- DISCRIMINATORY IN THAT, BY NULLIFYING THE SIGNIFICANCE OF CONSENT
THROUGH OBEDIENCE TO STATE LAW TO BE SUED IN THE FEDERAL COURTS, IT
WOULD ALLOW A FOREIGN CORPORATE DEFENDANT FREEDOM EITHER TO REMAIN IN
THE STATE COURTS OR TO REMOVE TO A FEDERAL COURT. 

AND SO, AFTER THE ACT OF 1887 AND DESPITE ITS ELIMINATION OF "IN
WHICH HE SHALL BE FOUND" FROM THE ACT OF 1875, LOWER FEDERAL COURTS
CONTINUED TO APPLY THE DOCTRINE OF SCHOLLENBERGER'S CASE BY CONSIDERING
THE DESIGNATION OF AN AGENT FOR SERVICE OF PROCESS AN EFFECTIVE CONSENT
TO BE SUED IN THE FEDERAL COURTS.  FN11  THIS PRACTICE IN THE LOWER
FEDERAL COURTS CONTINUED UNTIL 1892, WHEN SOUTHERN PACIFIC CO. V.
DENTON, 146 U.S. 202, WAS DECIDED.  BUT THAT CASE INVOLVED AN ENTIRELY
DIFFERENT SITUATION.  THE COURT WAS THERE CONCERNED WITH A TEXAS
STATUTE WHICH NOT MERELY REGULATED PROCEDURE FOR SUIT BUT SOUGHT TO
DENY FOREIGN CORPORATIONS ACCESS TO THE FEDERAL COURTS.  THIS COURT
HELD THE ACT UNCONSTITUTIONAL, AS THE TEXAS COURT HAD IN FACT ALREADY
DONE.  FN12  INASMUCH AS THE TEXAS ACT WAS FOUND TO BE VOID, IT "COULD
GIVE NO VALIDITY OR EFFECT TO ANY AGREEMENT OR ACTION OF THE
CORPORATION IN OBEDIENCE TO ITS PROVISIONS."  FN13  TO BE SURE, THE
COURT WENT ON TO INTERPRET THE AGREEMENT "IF VALID"  FN14  AND TO
SUGGEST THAT HAD IT BEEN VALID THE AGREEMENT MIGHT HAVE SUBJECTED THE
CORPORATION TO JURISDICTION "SO LONG AS THE JUDICIARY ACTS OF THE
UNITED STATES ALLOWED IT TO BE SUED IN THE DISTRICT IN WHICH IT WAS
'FOUND.'"  FN15  SUCH, AS WE HAVE SEEN, WAS NOT THE TRUE BASIS OF THE
DECISION IN SCHOLLENBERGER'S CASE.  AS DECISIONS, THE TWO CASES ARE
WHOLLY CONSISTENT.  BUT, DISREGARDING THE SITUATION BEFORE THE COURT IN
THE DENTON CASE - THE ABSENCE OF ANY VALID CONSENT TO BE SUED BECAUSE
OF THE INVALIDITY OF THE STATUTE BY WHICH THE ALLEGED "CONSENT" WAS
OBTAINED - SEVERAL OF THE LOWER COURTS HAVE TAKEN LANGUAGE FROM THE
DENTON OPINION AND HAVE MADE IT GOVERN SITUATIONS WHERE VALID CONSENT
DID EXIST BECAUSE GIVEN IN CONFORMITY WITH THE PROVISIONS OF A VALID
STATUTE.  FN16  OTHER COURTS HAVE ADHERED TO THE PRACTICE ESTABLISHED
BY SCHOLLENBERGER'S CASE.  FN17  WE DEEM THIS PRACTICE SOUND, AND IT
CONTROLS THE PRESENT CASE. 

IN CONFORMITY WITH WHAT IS NOW SEC. 210 OF THE GENERAL CORPORATION
LAW OF NEW YORK,  FN18 BETHLEHEM DESIGNATED "WILLIAM J. BROWN AS THE
PERSON UPON WHOM A SUMMONS MAY BE SERVED WITHIN THE STATE OF NEW
YORK."  THE SCOPE AND MEANING OF SUCH A DESIGNATION AS PART OF THE
BARGAIN BY WHICH BETHLEHEM ENJOYS THE BUSINESS FREEDOM OF THE STATE OF
NEW YORK, HAVE BEEN AUTHORITATIVELY DETERMINED BY THE COURT OF APPEALS,
SPEAKING THROUGH JUDGE CARDOZO:  "THE STIPULATION IS, THEREFORE, A TRUE
CONTRACT.  THE PERSON DESIGNATED IS A TRUE AGENT.  THE CONSENT THAT HE
SHALL REPRESENT THE CORPORATION IS A REAL CONSENT.  HE IS MADE THE
PERSON 'UPON WHOM PROCESS AGAINST THE CORPORATION MAY BE SERVED'.  ...
THE CONTRACT DEALS WITH JURISDICTION OF THE PERSON.  IT DOES NOT
ENLARGE OR DIMINISH JURISDICTION OF THE SUBJECT-MATTER.  IT MEANS THAT
WHENEVER JURISDICTION OF THE SUBJECT-MATTER IS PRESENT, SERVICE ON THE
AGENT SHALL GIVE JURISDICTION OF THE PERSON."  BAGDON V. PHILADELPHIA &
READING C. & I. CO., 217 N.Y. 432, 436-7.  A STATUTE CALLING FOR SUCH A
DESIGNATION IS CONSTITUTIONAL, AND THE DESIGNATION OF THE AGENT "A
VOLUNTARY ACT."  PENNSYLVANIA FIRE INS. CO. V. GOLD ISSUE MINING CO.,
243 U.S. 93.    IN FINDING AN ACTUAL CONSENT BY BETHLEHEM TO BE SUED IN
THE COURTS OF NEW YORK, FEDERAL AS WELL AS STATE, WE ARE NOT SUBJECTING
FEDERAL PROCEDURE TO THE REQUIREMENTS OF NEW YORK LAW.  WE ARE
RECOGNIZING THAT "STATE LEGISLATION AND CONSENT OF PARTIES MAY BRING
ABOUT A STATE OF FACTS WHICH WILL AUTHORIZE THE COURTS OF THE UNITED
STATES TO TAKE COGNIZANCE OF A CASE."  EX PARTE SCHOLLENBERGER, SUPRA,
AT 377.  THE JUDGMENT BELOW IS REVERSED. 

FN1  SECTION 112 READS AS FOLLOWS:  "EXCEPT AS PROVIDED IN SECTIONS
113 TO 117 OF THIS TITLE, NO PERSON SHALL BE ARRESTED IN ONE DISTRICT
FOR TRIAL IN ANOTHER IN ANY CIVIL ACTION BEFORE A DISTRICT COURT; AND,
EXCEPT AS PROVIDED IN SECTIONS 113 TO 118 OF THIS TITLE, NO CIVIL SUIT
SHALL BE BROUGHT IN ANY DISTRICT COURT AGAINST ANY PERSON BY ANY
ORIGINAL PROCESS OR PROCEEDING IN ANY OTHER DISTRICT THAN THAT WHEREOF
HE IS AN INHABITANT; 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." 

FN2  SEE HENDERSON, "THE POSITION OF FOREIGN CORPORATIONS IN AMERICAN
CONSTITUTIONAL LAW," PASSIM, AND ESPECIALLY THE ILLUMINATING ANALYSIS,
PP. 163-194. 

FN3  SEE GRAY, "THE NATURE AND SOURCES OF THE LAW," 184, AND
HENDERSON, OP. CIT. SUPRA, NOTE 2, PP. 50-76. 

FN4  SEE ST. CLAIR V. COX, 106 U.S. 350, 355. 

FN5  "WE ARE AWARE THAT THE PRACTICE IN THE CIRCUIT COURTS GENERALLY
HAS BEEN TO DECLINE JURISDICTION IN THIS CLASS OF SUITS."  96 U.S. 369,
378. 

FN6  DAY V. NEWARK INDIA-RUBBER MFG. CO., 1 BLATCH.  628; FED. CAS.
NO. 3,685; POMEROY V. NEW YORK, N.H. & H.R. CO., 4 BLATCH.  120; FED.
CAS. NO. 11,261.  BOTH THESE CASES WERE DECIDED BY MR. JUSTICE NELSON,
ON CIRCUIT. 

FN7  "WHILE THE CIRCUIT COURT MAY NOT BE TECHNICALLY A COURT OF THE
COMMONWEALTH, IT IS A COURT WITHIN IT; AND THAT, AS WE THINK, IS ALL
THE LEGISLATURE INTENDED TO PROVIDE FOR."  96 U.S. 369, 377.  SEE
MADISONVILLE TRACTION CO. V. MINING CO., 196 U.S. 239, 255-56.  CF.
LOUISVILLE & N.R. CO. V. CHATTERS, 279 U.S. 320, 329. 

FN8  A COGNATE MISCONCEPTION AS TO THE PURPOSE OF THE ACT OF 1887-88
IN CONTRACTING THE JURISDICTION OF THE CIRCUIT COURTS UNDERLAY THE
DECISION IN EX PARTE WISNER, 203 U.S. 449, OVERRULED IN LEE V.
CHESAPEAKE & OHIO RY. CO., 260 U.S. 653, 659. 

FN9  THE CULBERSON BILL, WHICH PASSED THE HOUSE IN 1887, WAS H.R.
2441, 49TH CONG., 1ST SESS. IT PROVIDED IN ITS ORIGINAL FORM THAT THE
LOWER FEDERAL COURTS SHOULD NOT TAKE "COGNIZANCE OF ANY SUIT" BETWEEN
"A CORPORATION CREATED OR ORGANIZED BY OR UNDER THE LAWS OF ANY STATE
AND A CITIZEN OF ANY STATE IN WHICH SUCH CORPORATION AT THE TIME THE
CAUSE OF ACTION ACCRUED MAY HAVE BEEN CARRYING ON ANY BUSINESS
AUTHORIZED BY THE LAW CREATING IT.  ...  "  THERE WERE LIKEWISE
PROVISIONS FORBIDDING REMOVAL OF SUCH SUITS TO THE LOWER FEDERAL
COURTS.  SEE 18 CONG. REC. 613; H. REP. NO. 1078, 49TH CONG., 1ST
SESS. 

FN10  10 CONG. REC. 1304-1305; 14 CONG. REC. 1270; 15 CONG. REC.
4909. 

FN11  RIDDLE V. NEW YORK, L.E. & W.R. CO., 39 F.290(C.C., W.D. PA.,
1889); CONSOLIDATED STORE-SERVICE CO. V. LAMSON CONSOL.  STORE-SERVICE
CO., 41 F. 833(C.C. MASS., 1890) APPROVINGLY CITED IN HAIGHT & FREESE
CO. V. WEISS, 156 F. 328(C.C.A. 1ST, 1907). 

FN12  TEXAS LAND & MORTGAGE CO. V. WORSHAM, 76 TEX. 556. 

FN13  146 U.S. AT 207. 

FN14  146 U.S. AT 207. 

FN15  146 U.S. AT 207.  THE DENTON CASE WAS BASED ON SHAW V. QUINCY
MINING CO., 145 U.S. 444, IN WHICH THERE WAS NO CONSENT DERIVABLE FROM
THE DESIGNATION OF AN AGENT FOR SERVICE.  BOTH OPINIONS WERE WRITTEN BY
MR. JUSTICE GRAY, WHO LATER ACCURATELY DELIMITED THE SCOPE OF THE
HOLDINGS IN BOTH THE SHAW AND THE DENTON CASES.  IN RE KEASBEY &
MATTISON CO., 160 U.S. 221, 229.  THE DECISIVE DIFFERENCE BETWEEN THE
PRESENT CASE AND IN RE KEASBEY & MATTISON CO., IS THAT IN THE LATTER
CASE THE DESIGNATION UNDER STATE LAW WHICH IS THE BASIS OF CONSENT HAD
IN FACT NOT BEEN MADE.  BUT THE REQUIREMENT OF "RESIDENCE" IN THE ACT
OF 1887 IS AS MUCH SATISFIED BY A CONSENT TO BE SUED AS WAS THE
REQUIREMENT "TO BE FOUND" IN THE 1875 ACT SATISFIED BY SUCH A CONSENT. 

FN16  PLATT V. MASSACHUSETTS REAL ESTATE CO., 103 F. 705(C.C. MASS.,
1900); HAGSTOZ V. MUTUAL LIFE INS. CO., 179 F. 569(C.C.E.D. PA., 1910);
BEECH-NUT PACKING CO. V. P. LORILLARD CO., 287 F. 271(S.D. N.Y., 1921);
JONES V. CONSOL.  WAGON CO., 31 F.2D 383, 384(D. IDAHO, 1929); KERFOOT
& CO. V. UNITED DRUG CO., 38 F.2D 671(D. DEL., 1930); STANDARD STOKER
CO. V. LOWER, 46 F.2D 678(D. MD., 1931); MCLEAN V. MISSISSIPPI, 96 F.2D
741(C.C.A.5TH, 1938); GRAY V. RELIANCE INS. CO., 24 F.SUPP.  144(W.D.
LA., 1938); HAMILTON WATCH CO. V. GEORGE W. BORG CO., 27 F.SUPP. 
215(N.D. ILL., 1939); TOULMIN V. JAMES MFG. CO., 27 F.SUPP. 
512(W.D.N.Y., 1939).  CF. HEINE CHIMNEY CO. V. RUST ENGINEERING CO., 12
F.2D 596(C.C.A. 2ND, 1926). 

FN17  SHAINWALD V. DAVIDS, 69 F. 704(N.D. CAL., 1895); DODGE MFG. CO.
V. PATTEN, 23 F.2D 852(D. IND., 1928), AFF'D 60 F.2D 676(C.C.A.7TH,
1932); OKLAHOMA PACKING CO. V. OKLAHOMA GAS & ELEC.  CO., 100 F.2D
770(C.C.A. 10TH, 1938). 

FN18  ORIGINALLY ENACTED AS C. 687, LAWS OF 1892, PP. 1805-1806. 

MR. JUSTICE ROBERTS, DISSENTING. 

THE CIRCUIT COURT OF APPEALS, IN A CAREFUL AND DISCRIMINATING
OPINION,  FN1  HAS HELD THAT TO DENY THE RESPONDENT'S MOTION TO DISMISS
IT FROM THE SUIT WOULD BE TO DISREGARD THE LONG SETTLED CONSTRUCTION OF
SEC. 51 OF THE JUDICIAL CODE AND THE EQUALLY WELL SETTLED APPLICATION
OF THAT SECTION.  I THINK ITS JUDGMENT SHOULD BE AFFIRMED. 

WHATEVER MAY BE SAID IN SUPPORT OF THE ORIGINAL ADOPTION OF A
DIFFERENT RULE, IT HAS BEEN THE LAW FOR A CENTURY THAT, AS RESPECTS THE
JURISDICTION OF THE FEDERAL COURTS OVER A CORPORATION IN DIVERSITY OF
CITIZENSHIP CASES, THE CORPORATION IS A CITIZEN AND RESIDENT OF THE
STATE OF INCORPORATION AND OF NO OTHER STATE.  I DO NOT UNDERSTAND THE
COURT'S OPINION TO REPUDIATE THE RULE. 

THE STATUTE WHICH IS NOW SEC. 51 OF THE JUDICIAL CODE TOOK ITS
PRESENT FORM IN 1888.  IN 1892 THE COURT HELD, IN SHAW V. QUINCY MINING
CO., 145 U.S. 444, 453, THAT, UNDER THE STATUTE, "A CORPORATION,
INCORPORATED IN ONE STATE ONLY, CANNOT BE COMPELLED TO ANSWER, IN A
CIRCUIT COURT OF THE UNITED STATES HELD IN ANOTHER STATE IN WHICH IT
HAS A USUAL PLACE OF BUSINESS, TO A CIVIL SUIT, AT LAW OR IN EQUITY,
BROUGHT BY A CITIZEN OF A DIFFERENT STATE."  THIS CONSTRUCTION HAS BEEN
FOLLOWED IN THIS COURT WITHOUT DEVIATION AND WITH PRACTICAL UNANIMITY
BY THE LOWER FEDERAL COURTS.  FN2 

AT THE NEXT TERM, IN SOUTHERN PACIFIC CO. V. DENTON, 146 U.S. 202,
205, 207, THE RULING WAS REAFFIRMED IN A CASE WHERE THE DEFENDANT HAD
REGISTERED AS A FOREIGN CORPORATION UNDER A STATE LAW AND, AS A
CONDITION OF REGISTRATION, HAD AGREED THAT SERVICE OF PROCESS MIGHT BE
MADE UPON A DESIGNATED AGENT. 

THE EARLIER ACT OF 1875 PROVIDED THAT NO CIVIL SUIT COULD BE BROUGHT
AGAINST A DEFENDANT IN A UNITED STATES COURT "IN ANY OTHER DISTRICT
THAN THAT WHEREOF HE IS AN INHABITANT, OR IN WHICH HE SHALL BE FOUND AT
THE TIME OF SERVING SUCH PROCESS  ...  " 

EX PARTE SCHOLLENBERGER, 96 U.S. 369, APPLIED THAT EARLIER STATUTE. 
THE COURT HELD THAT A FOREIGN CORPORATION WHICH HAD REGISTERED AND
CONSENTED TO THE SERVICE OF PROCESS UPON A DESIGNATED AGENT HAD THEREBY
AGREED "TO BE FOUND" WITHIN THE STATE AND MIGHT THEREFORE BE IMPLEADED
IN A FEDERAL COURT SITTING IN THE STATE ALTHOUGH IT WAS NOT A CITIZEN
OR A RESIDENT OF THE STATE.  THE CASE WAS CITED IN THE OPINIONS IN BOTH
THE SHAW AND THE SOUTHERN PACIFIC CASES.  IN THE LATTER THE COURT SAID,
REFERRING TO THE FOREIGN CORPORATION'S AGREEMENT AS TO SERVICE:  (PP.
207-8) "IT MIGHT LIKEWISE HAVE SUBJECTED THE CORPORATION TO THE
JURISDICTION OF A CIRCUIT COURT OF THE UNITED STATES HELD WITHIN THE
STATE - SO LONG AS THE JUDICIARY ACTS OF THE UNITED STATES ALLOWED IT
TO BE SUED IN THE DISTRICT IN WHICH IT WAS FOUND.  ...  BUT SUCH AN
AGREEMENT COULD NOT, SINCE CONGRESS (AS HELD IN SHAW V. QUINCY MINING
CO. ABOVE CITED) HAS MADE CITIZENSHIP OF THE STATE, WITH RESIDENCE IN
THE DISTRICT, THE SOLE TEST OF JURISDICTION IN THIS CLASS OF CASES,
ESTOP THE CORPORATION TO SET UP NON-COMPLIANCE WITH THAT TEST, WHEN
SUED IN A CIRCUIT COURT OF THE UNITED STATES." 

IN RE KEASBEY & MATTISON CO., 160 U.S. 221, THE COURT HELD (P. 228):
"UNDER THE PROVISION OF THAT ACT (THE EARLIER ACT OF 1875), WHICH
ALLOWED A DEFENDANT TO BE SUED IN THE DISTRICT OF WHICH HE WAS AN
INHABITANT, OR IN THAT IN WHICH HE WAS FOUND, A CORPORATION COULD
DOUBTLESS HAVE BEEN SUED EITHER IN THE DISTRICT IN WHICH IT WAS
INCORPORATED, OR IN ANY DISTRICT IN WHICH IT CARRIED ON BUSINESS AND
HAD A GENERAL AGENT."  FOR THIS STATEMENT THE COURT CITED EX PARTE
SCHOLLENBERGER, SHAW V. QUINCY MINING CO., AND SOUTHERN PACIFIC CO. V.
DENTON.  THE OPINIONS IN THE LAST TWO, AND THAT IN THE KEASBEY CASE,
WERE WRITTEN FOR THE COURT BY MR. JUSTICE GRAY, WHO SUMMED UP THEIR
EFFECT BY SAYING:  "AND IT IS ESTABLISHED BY THE DECISIONS OF THIS
COURT THAT, WITHIN THE MEANING OF THIS ACT, A CORPORATION CANNOT BE
CONSIDERED A CITIZEN, AN INHABITANT OR A RESIDENT OF A STATE IN WHICH
IT HAS NOT BEEN INCORPORATED; AND, CONSEQUENTLY, THAT A CORPORATION
INCORPORATED IN A STATE OF THE UNION CANNOT BE COMPELLED TO ANSWER TO A
CIVIL SUIT, AT LAW OR IN EQUITY, IN A CIRCUIT COURT OF THE UNITED
STATES HELD IN ANOTHER STATE, EVEN IF THE CORPORATION HAS A USUAL PLACE
OF BUSINESS IN THAT STATE." 

THIS INTERPRETATION OF SEC. 51 HAS SINCE REMAINED UNCHANGED. 
CONGRESS MUST HAVE KNOWN OF AND ACQUIESCED IN THE COURTS' CONSTRUCTION
OF THE SECTION, PARTICULARLY AS THERE HAVE BEEN EFFORTS TO AMEND IT,
AND NO ALTERATION HAS BEEN ADOPTED. 

UPON PRINCIPLE, AND UNDER THE AUTHORITIES, THE MERE FACT THAT SERVICE
OF PROCESS VALID UNDER STATE LAW CAN BE HAD ON AN OFFICER OR AGENT OF A
FOREIGN CORPORATION DOING BUSINESS WITHIN THE STATE IS IRRELEVANT; FOR
ALTHOUGH THE CORPORATION MAY BE SERVED IN CONFORMITY TO LOCAL LAW, IT
CANNOT BE COMPELLED TO TRY ITS CASE IN A FEDERAL COURT SITTING IN THE
STATE.  I DO NOT UNDERSTAND THE OPINION OF THE COURT TO HOLD TO THE
CONTRARY. 

BUT IT IS SAID THAT REGISTRATION AND DESIGNATION OF AN AGENT UPON
WHOM SERVICE MAY BE MADE UNDER COMPULSION OF STATE LAW AMOUNTS TO A
WAIVER OF THE REQUIREMENTS OF SEC. 51 AS TO VENUE, OR TO A CONSENT TO
BE SUED IN A FEDERAL COURT SITTING WITHIN THE STATE. 

AS HAS BEEN SHOWN BY QUOTATION FROM THE OPINION, THIS CONTENTION WAS
MADE IN SOUTHERN PACIFIC CO. V. DENTON, SUPRA, AND WAS OVERRULED.  THE
HOLDING WAS ONE OF THE ALTERNATIVE GROUNDS OF DECISION.  THE SOUTHERN
PACIFIC CASE SETTLED THE APPLICATION OF SEC. 51, IN THE CIRCUMSTANCES
HERE DISCLOSED, AND THE DECISION HAS NEVER BEEN QUALIFIED OR
OVERRULED.  THE LOWER FEDERAL COURTS HAVE UNDERSTOOD AND APPLIED THAT
DECISION WITH PRACTICAL UNIFORMITY TO ENABLE THE FOREIGN CORPORATION TO
CONTEST THE VENUE OF SUITS AGAINST IT.  FN3 

I SEE NO REASON AT THIS LATE DAY TO ATTRIBUTE A NEW EFFECT TO THE
STATUTE WHEN CONGRESS HAS NOT SEEN FIT TO EXPRESS A VIEW CONTRARY TO
THAT EMBODIED IN THIS COURT'S CONSTRUCTION OF THE LAW; THOUGH THIS
MIGHT AT ANY TIME BE DONE.  THE PRINCIPLE OF STARE DECISIS SEEMS TO ME
TO MAKE AGAINST SUCH A CHANGE. 

THE COURT BELOW HAS ANALYZED THE APPLICABLE NEW YORK STATUTE AND HAS
SATISFACTORILY DEMONSTRATED THAT IT DEALS WITH SERVICE OF PROCESS ON
FOREIGN CORPORATIONS IN THE COURTS OF NEW YORK.  THE STATE COULD NOT,
BY ITS LAWS, AFFECT THE JURISDICTION OF FEDERAL COURTS OR THE VENUE OF
SUITS THEREIN,  - A MATTER SOLELY WITHIN THE CONTROL OF CONGRESS. 

FN1  103 F.2D 765. 

FN2  IN RE KEASBEY & MATTISON CO., 160 U.S. 221; MACON GROCERY CO. V.
ATLANTIC COAST LINE R. CO., 215 U.S. 501; LADEW V. TENNESSEE COPPER
CO., 218 U.S. 357; MALE V. ATCHISON, T. & S.F. RY. CO., 240 U.S. 97;
GENERAL INVESTMENT CO. V. LAKE SHORE RY. CO., 260 U.S. 261, 271;
SEABOARD RICE MILLING CO. V. CHICAGO, R.I. & P. RY. CO., 270 U.S. 363;
LUCKETT V. DELPARK, INC., 270 U.S. 496; BURNRITE COAL CO. V. RIGGS, 274
U.S. 208, 211.  THE DECISIONS IN THE FEDERAL COURTS ARE CITED AND
DISCUSSED BY THE CIRCUIT COURT OF APPEALS, 103 F.2D 767. 

FN3  SOME OF THE CASES ARE CITED BY THE CIRCUIT COURT OF APPEALS IN
ITS OPINION.  103 F.2D 769. 

THE CHIEF JUSTICE AND MR. JUSTICE MCREYNOLDS JOIN IN THIS OPINION. 
..END :




ZIFFRIN, INC. V. REEVES, 308 U.S. 132 


NO. 8.  ARGUED OCTOBER 12, 1939.  - DECIDED NOVEMBER 13, 1939.  - 24
F.SUPP.  924, AFFIRMED. 


1.  IN THE EXERCISE OF ITS POWER OVER THE MANUFACTURE, DISTRIBUTION
AND SALE OF INTOXICATING LIQUORS, A STATE MAY CONFINE THE BUSINESS OF
TRANSPORTING THEM WITHIN THE STATE TO THOSE WHO ARE LICENSED AS COMMON
CARRIERS, AND MAY ENFORCE THIS BY PENALTY AND CONFISCATION.  P. 138. 

2.  THE STATE POWER TO PROHIBIT ABSOLUTELY, INCLUDES THE LESSER POWER
TO PERMIT MANUFACTURE, SALE, TRANSPORTATION OR POSSESSION, SUBJECT TO
PRESCRIBED CONDITIONS WHICH ARE NOT UNREASONABLE AND WHICH SUBSERVE THE
POLICY OF CONFINING THE LIQUOR TRAFFIC IN ORDER TO MINIMIZE ITS EVILS
AND TO SECURE PAYMENT OF REVENUE.  P. 138. 

3.  PROVISIONS OF THE KENTUCKY ALCOHOL BEVERAGE CONTROL ACT
FORBIDDING THE CARRIAGE OF INTOXICATING LIQUORS BY CARRIERS OTHER THAN
LICENSED COMMON CARRIERS AND FORBIDDING DISTILLERS TO DELIVER TO AN
UNAUTHORIZED CARRIER, ARE NOT INVALID UNDER THE COMMERCE CLAUSE, OR
UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT, NOR INCONSISTENT WITH THE FEDERAL MOTOR CARRIER ACT OF 1935,
AS APPLIED TO A CONTRACT CARRIER IN AN ESTABLISHED BUSINESS OF
TRANSPORTING SUCH LIQUORS, PRODUCED IN KENTUCKY, TO CONSIGNEES IN OTHER
STATES.  PP. 138, 140. 

4.  THE STATE MAY DECLINE TO CONSIDER CERTAIN NOXIOUS THINGS
LEGITIMATE ARTICLES OF COMMERCE, AND INHIBIT THEIR TRANSPORTATION. 
PROPERTY RIGHTS IN INTOXICANTS DEPEND ON STATE LAWS AND CEASE IF THE
LIQUOR BECOMES CONTRABAND.  P. 140. 

5.  ALTHOUGH REGULATION BY A STATE MAY IMPOSE SOME BURDEN ON
INTERSTATE COMMERCE, THIS IS PERMISSIBLE WHEN "AN INSEPARABLE INCIDENT
OF THE EXERCISE OF A LEGISLATIVE AUTHORITY, WHICH, UNDER THE
CONSTITUTION, HAS BEEN LEFT TO THE STATES."  P. 141. 

ZIFFRIN, INC. V. REEVES, COMMISSIONER OF REVENUE OF KENTUCKY, ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF KENTUCKY. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DENYING AN
INJUNCTION AND DISMISSING THE BILL IN A SUIT TO RESTRAIN PUBLIC
OFFICIALS IN KENTUCKY FROM ENFORCING AGAINST THE APPELLANT CERTAIN
PROVISIONS OF THE STATE LIQUOR CONTROL LAW.  THE CASE WAS HEARD BELOW
ON PLAINTIFF'S APPLICATION FOR A PRELIMINARY INJUNCTION, AND
DEFENDANTS' MOTIONS TO DISSOLVE A TEMPORARY RESTRAINING ORDER AND TO
DISMISS THE AMENDED BILL OF COMPLAINT. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

SINCE MARCH 1933 APPELLANT, AN INDIANA CORPORATION, HAS CONTINUOUSLY
RECEIVED WHISKEY FROM DISTILLERS IN KENTUCKY FOR DIRECT CARRIAGE TO
CONSIGNEES IN CHICAGO.  IT HAS PERMISSION UNDER THE FEDERAL MOTOR
CARRIER ACT, 1935,  FN1  TO OPERATE AS A CONTRACT CARRIER, AND CLAIMS
THE RIGHT TO TRANSPORT WHISKEY AS HERETOFORE, NOTWITHSTANDING
INHIBITIONS OF THE KENTUCKY ALCOHOLIC BEVERAGE CONTROL LAW APPROVED
MARCH 7, 1938.  FN2  BY THIS PROCEEDING IT SEEKS TO RESTRAIN OFFICERS
OF THE STATE FROM ENFORCING THE CONTRABAND AND PENAL PROVISIONS OF THAT
ENACTMENT. 

THE BILL CHARGES THAT TO ENFORCE THE CONTROL LAW WOULD IMPAIR
APPELLANT'S RIGHTS UNDER THE COMMERCE CLAUSE, FEDERAL CONSTITUTION, AND
DEPRIVE IT OF THE DUE PROCESS AND EQUAL PROTECTION GUARANTEED BY THE
FOURTEENTH AMENDMENT.  THE DISTRICT COURT - THREE JUDGES SITTING -
SUSTAINED A MOTION TO DISMISS.  A DIRECT APPEAL BRINGS THE MATTER
HERE. 

THE STATUTE IS A LONG, COMPREHENSIVE MEASURE (123 SECTIONS) DESIGNED
RIGIDLY TO REGULATE THE PRODUCTION AND DISTRIBUTION OF ALCOHOLIC
BEVERAGES THROUGH MEANS OF LICENSES AND OTHERWISE.  THE MANIFEST
PURPOSE IS TO CHANNELIZE THE TRAFFIC, MINIMIZE THE COMMONLY ATTENDANT
EVILS; ALSO TO FACILITATE THE COLLECTION OF REVENUE.  TO THIS END
MANUFACTURE, SALE, TRANSPORTATION, AND POSSESSION ARE PERMITTED ONLY
UNDER CAREFULLY PRESCRIBED CONDITIONS AND SUBJECT TO CONSTANT CONTROL
BY THE STATE.  EVERY PHASE OF THE TRAFFIC IS DECLARED ILLEGAL UNLESS
DEFINITELY ALLOWED.  THE PROPERTY BECOMES CONTRABAND UPON FAILURE TO
OBSERVE THE STATUTORY REQUIREMENTS AND WHENEVER FOUND IN UNAUTHORIZED
POSSESSION. 

TO MANUFACTURE, STORE, SELL, PURCHASE, TRANSPORT OR OTHERWISE IN ANY
MANNER TRAFFIC IN ALCOHOLIC BEVERAGES AS THAT TERM IS DEFINED IN THIS
ACT, WITHOUT FIRST HAVING PAID TO THE DEPARTMENT OF REVENUE AT ITS
OFFICE IN FRANKFORT, THE LICENSE TAX REQUIRED BY THIS ACT, AND WITHOUT
FIRST HAVING OBTAINED THE LICENSE REQUIRED BY THIS ACT."  FN3 

MALT LIQUORS IN THE POSSESSION OF ANY ONE NOT ENTITLED TO POSSESSION OF
THE SAME UNDER THE PROVISIONS OF THIS ACT."  FN4  PEACE OFFICERS ARE
AUTHORIZED TO SEIZE SUCH CONTRABAND AND INSTITUTE PROCEEDINGS FOR
FORFEITURE. 

LICENSES ARE AUTHORIZED (SEC. 18(1)-(9))  FN5  FOR DISTILLERS,
RECTIFIERS, VINTNERS, WHOLESALERS, RETAILERS, AND (SEC. 18(7))  FN6
FOR THE TRANSPORTATION OF LIQUORS TO AND FROM ANY POINT IN THE STATE. 
PRIVILEGES WHICH MAY BE EXERCISED UNDER THESE ARE DEFINITELY SET OUT. 

CASE MAY BE, SHALL AUTHORIZE THE HOLDER THEREOF, AT THE PREMISES
SPECIFICALLY DESIGNATED IN THE LICENSE, TO ENGAGE IN THE BUSINESS OF
DISTILLER, RECTIFIER, OR VINTNER, AS THE CASE MAY BE, AS THOSE TERMS
ARE DEFINED IN THIS ACT, AND TO TRANSPORT FOR HIMSELF ONLY ANY
ALCOHOLIC BEVERAGE WHICH HE IS AUTHORIZED UNDER THIS LICENSE TO
MANUFACTURE OR SELL,  ..."  FN7 

AT WHOLESALE, AND FROM THE LICENSED PREMISES ONLY,  ...  (3) BY
LICENSED DISTILLERS, RECTIFIERS OR VINTNERS FOR EXPORT OUT OF THE
COMMONWEALTH; PROVIDED, NO DISTILLER, RECTIFIER OR VINTNER, SHALL SELL
OR CONTRACT TO SELL, GIVE AWAY OR DELIVER ANY ALCOHOLIC BEVERAGES TO
ANY PERSON, WHO IS NOT DULY AUTHORIZED BY THE LAW OF THE STATE OF HIS
RESIDENCE AND OF THE FEDERAL GOVERNMENT IF LOCATED IN THE UNITED
STATES, TO RECEIVE AND POSSESS SAID ALCOHOLIC BEVERAGES; AND IN NO
EVENT SHALL HE SELL OR CONTRACT TO SELL, GIVE AWAY OR DELIVER, ANY OF
HIS PRODUCTS TO ANY RETAILER OR CONSUMER IN KENTUCKY."  FN8 

TRANSPORT DISTILLED SPIRITS AND WINE TO OR FROM THE LICENSED PREMISES
OF ANY LICENSEE UNDER THIS ACT, PROVIDED" ETC.  FN9 SECTION 54(7) - "A
TRANSPORTER'S LICENSE AS PROVIDED FOR IN SECTION 18(7) OF THIS ACT
SHALL BE ISSUED ONLY TO PERSONS WHO ARE AUTHORIZED BY PROPER
CERTIFICATE FROM THE DIVISION OF MOTOR TRANSPORTATION IN THE DEPARTMENT
OF BUSINESS REGULATION TO ENGAGE IN THE BUSINESS OF A COMMON CARRIER." 
FN10 

COMPANY SHALL TRANSPORT OR CAUSE TO BE TRANSPORTED ANY DISTILLED
SPIRITS OR WINE, OTHERWISE THAN AS PROVIDED IN THIS ACT, EXCEPT SUCH
BEVERAGES MAY BE TRANSPORTED BY THE HOLDER OF ANY LICENSE AUTHORIZED BY
FROM THE PREMISES COVERED BY THE LICENSE OF THE PERSON SO TRANSPORTING
DISTILLED SPIRITS OR WINE."  FN11 

A LICENSE MAY ONLY ISSUE (SEC. 33)  FN12  UPON AN APPLICATION WHICH
INCORPORATES (SEC. 36(5)) FN13  A PROMISE THAT "THE APPLICANT WILL IN
ALL RESPECTS AND IN GOOD FAITH CONSCIENTIOUSLY ABIDE BY ALL THE
PROVISIONS OF THIS ACT AND OF ANY OTHER ACT OR ORDINANCE RELATING TO
ALCOHOLIC BEVERAGES" ETC. ALSO, (SEC. 37)  FN14  THERE MUST BE A BOND
"CONDITIONED THAT SUCH APPLICANT, IF GRANTED THE LICENSE SOUGHT, WILL
NOT SUFFER OR PERMIT ANY VIOLATION OF THE PROVISIONS OF THIS ACT" ETC. 

HAVING BEEN DENIED A COMMON CARRIER'S CERTIFICATE, APPELLANT SOUGHT
AND WAS REFUSED A TRANSPORTER'S LICENSE BECAUSE IT HELD NO SUCH
CERTIFICATE. 

IN SUM, COUNSEL FOR APPELLANT SAY:  THE COMPLAINT CHARGES THAT THE
CONTROL LAW IS UNCONSTITUTIONAL BECAUSE REPUGNANT TO THE COMMERCE, DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FEDERAL CONSTITUTION IN
THAT, UNDER PAIN OF EXCESSIVE PENALTIES, IT UNDERTAKES TO PREVENT AN
AUTHORIZED INTERSTATE CONTRACT CARRIER FROM CONTINUING AN ESTABLISHED
BUSINESS OF TRANSPORTING EXPORTS OF LIQUORS FROM KENTUCKY IN INTERSTATE
COMMERCE EXCLUSIVELY.  ALSO:  INTOXICATING LIQUORS ARE LEGITIMATE
ARTICLES OF INTERSTATE COMMERCE UNLESS FEDERAL LAW HAS DECLARED
OTHERWISE.  INTERSTATE COMMERCE INCLUDES BOTH IMPORTATION OF PROPERTY
WITHIN A STATE AND EXPORTATION THEREFROM.  PRIOR TO THE WILSON AND WEBB
KENYON ACTS, AND THE TWENTY-FIRST AMENDMENT, THE POWERS OF THE STATES
OVER INTOXICANTS IN BOTH OF THESE MOVEMENTS WERE LIMITED BY THE
COMMERCE CLAUSE.  THESE ENACTMENTS RELATE TO IMPORTATIONS ONLY. 
EXPORTS REMAIN, AS ALWAYS, SUBJECT TO THAT CLAUSE.  "ALTHOUGH A STATE
MAY PROHIBIT THE MANUFACTURE OF LIQUOR, IF A STATE PERMITS
DISTILLATION, SALE AND TRANSPORTATION - AS KENTUCKY DOES - THE RULE OF
LAW IS THAT THE STATE MAY NOT ANNEX TO ITS CONSENT TO MANUFACTURE AND
SELL THE UNCONSTITUTIONAL BAN UPON CARRIAGE OF INTERSTATE EXPORTS OF
LIQUORS BY CONTRACT CARRIERS." 

THE COURT BELOW REJECTED APPELLANT'S INSISTENCE AND AFFIRMED THE
ASSERTED POWER OF THE STATE.  LIKE CONCLUSIONS WERE APPROVED IN
COMMONWEALTH V. ONE DODGE MOTOR TRUCK, 326 PA. 120; 191 A. 590(123 PA.
SUPERIOR CT. 311; 187 A. 461); CLARK V. STATE EX REL. BOBO, 172 TENN.
429; 113 S.W.2D 374; JEFFERSON COUNTY DISTILLING CO. V. CLIFTON, 249
KY. 815; 61 S.W.2D 645. 

THE TWENTY-FIRST AMENDMENT SANCTIONS THE RIGHT OF A STATE TO
LEGISLATE CONCERNING INTOXICATING LIQUORS BROUGHT FROM WITHOUT,
UNFETTERED BY THE COMMERCE CLAUSE.  WITHOUT DOUBT A STATE MAY
ABSOLUTELY PROHIBIT THE MANUFACTURE OF INTOXICANTS, THEIR
TRANSPORTATION, SALE, OR POSSESSION, IRRESPECTIVE OF WHEN OR WHERE
PRODUCED OR OBTAINED, OR THE USE TO WHICH THEY ARE TO BE PUT.  FURTHER,
SHE MAY ADOPT MEASURES REASONABLY APPROPRIATE TO EFFECTUATE THESE
INHIBITIONS AND EXERCISE FULL POLICE AUTHORITY IN RESPECT OF THEM. 
CLARK DISTILLING CO. V. WESTERN MARYLAND RY. CO., 242 U.S. 311, 320;
CRANE V. CAMPBELL, 245 U.S. 304, 307; SEABOARD AIR LINE RY. V. NORTH
CAROLINA, 245 U.S. 298, 304; SAMUELS V. MCCURDY, 267 U.S. 188, 197
198. 

HAVING POWER ABSOLUTELY TO PROHIBIT MANUFACTURE, SALE,
TRANSPORTATION, OR POSSESSION OF INTOXICANTS, WAS IT PERMISSIBLE FOR
KENTUCKY TO PERMIT THESE THINGS ONLY UNDER DEFINITELY PRESCRIBED
CONDITIONS?  FORMER OPINIONS HERE MAKE AN AFFIRMATIVE ANSWER
IMPERATIVE.  THE GREATER POWER INCLUDES THE LESS.  SEABOARD AIR LINE
RY. V. NORTH CAROLINA, SUPRA.  THE STATE MAY PROTECT HER PEOPLE AGAINST
EVIL INCIDENT TO INTOXICANTS, MUGLER V. KANSAS, 123 U.S. 623; KIDD V.
PEARSON, 128 U.S. 1; AND MAY EXERCISE LARGE DISCRETION AS TO MEANS
EMPLOYED. 

KENTUCKY HAS SEEN FIT TO PERMIT MANUFACTURE OF WHISKEY ONLY UPON
CONDITION THAT IT BE SOLD TO AN INDICATED CLASS OF CUSTOMERS AND
TRANSPORTED IN DEFINITELY SPECIFIED WAYS.  THESE CONDITIONS ARE NOT
UNREASONABLE AND ARE CLEARLY APPROPRIATE FOR EFFECTUATING THE POLICY OF
LIMITING TRAFFIC IN ORDER TO MINIMIZE WELL-KNOWN EVILS, AND SECURE
PAYMENT OF REVENUE.  THE STATUTE DECLARES WHISKEY REMOVED FROM
PERMITTED CHANNELS CONTRABAND SUBJECT TO IMMEDIATE SEIZURE.  THIS IS
WITHIN THE POLICE POWER OF THE STATE; AND PROPERTY SO CIRCUMSTANCED
CANNOT BE REGARDED AS A PROPER ARTICLE OF COMMERCE.  SLIGH V. KIRKWOOD,
237 U.S. 52, 59; CLASON V. INDIANA, 306 U.S. 439. 

IN EFFECT WE ARE ASKED BY INJUNCTION TO ALLOW A DISTILLER TO DO WHAT
THE STATUTE PROHIBITS - DELIVER TO AN UNAUTHORIZED CARRIER.  ALSO TO
ENABLE A CARRIER TO DO WHAT IT IS PROHIBITED FROM DOING - RECEIVE AND
TRANSPORT WITHIN THE STATE. 

KIDD V. PEARSON, SUPRA:  AN ACT OF THE IOWA LEGISLATURE IN GENERAL
TERMS FORBADE MANUFACTURE OR SALE OF INTOXICATING LIQUOR BUT PERMITTED
THESE FOR MECHANICAL OR OTHER PURPOSES.  AN INJUNCTION WAS APPROVED
WHICH RESTRAINED KIDD FROM OPERATING HIS DISTILLERY ALTHOUGH HE CLAIMED
THE OUTPUT WOULD BE EXPORTED FOR SALE BEYOND THE STATE.  THIS COURT
SAID:  "WHETHER A STATE, IN THE EXERCISE OF ITS UNDISPUTED POWER OF
LOCAL ADMINISTRATION, CAN ENACT A STATUTE PROHIBITING WITHIN ITS LIMITS
THE MANUFACTURE OF INTOXICATING LIQUORS, EXCEPT FOR CERTAIN PURPOSES,
IS NOT ANY LONGER AN OPEN QUESTION BEFORE THIS COURT.  ...  THE POLICE
POWER OF A STATE IS AS BROAD AND PLENARY AS ITS TAXING POWER; AND
PROPERTY WITHIN THE STATE IS SUBJECT TO THE OPERATIONS OF THE FORMER SO
LONG AS IT IS WITHIN THE REGULATING RESTRICTIONS OF THE LATTER." 

THE DOCTRINE OF THAT CASE HAS BEEN OFTEN APPLIED.  GEER V.
CONNECTICUT, 161 U.S. 519; RIPPEY V. TEXAS, 193 U.S. 504, 509; HUDSON
COUNTY WATER CO. V. MCCARTER, 209 U.S. 349, 357:  "A MAN CANNOT ACQUIRE
A RIGHT TO PROPERTY BY HIS DESIRE TO USE IT IN COMMERCE AMONG THE
STATES.  NEITHER CAN HE ENLARGE HIS OTHERWISE LIMITED AND QUALIFIED
RIGHT TO THE SAME END"; SLIGH V. KIRKWOOD, 237 U.S. 52; STATE BOARD V.
YOUNG'S MARKET CO., 299 U.S. 59, 63; CLASON V. INDIANA, 306 U.S. 439. 

THE TWO CASES LAST CITED RECOGNIZE THAT THE STATE MAY DECLINE TO
CONSIDER CERTAIN NOXIOUS THINGS LEGITIMATE ARTICLES OF COMMERCE, AND
INHIBIT THEIR TRANSPORTATION.  PROPERTY RIGHTS IN INTOXICANTS DEPEND ON
STATE LAWS AND CEASE IF THE LIQUOR BECOMES CONTRABAND. 

WE CANNOT ACCEPT APPELLANT'S CONTENTION THAT BECAUSE WHISKEY IS
INTENDED FOR TRANSPORTATION BEYOND THE STATE LINES THE DISTILLER MAY
DISREGARD THE INHIBITIONS OF THE STATUTE BY DELIVERY TO ONE NOT
AUTHORIZED TO RECEIVE; THAT THE CARRIER MAY SET AT NAUGHT INHIBITIONS
AND TRANSPORT CONTRABAND WITH IMPUNITY. 

THE POINT SUGGESTED IN RESPECT OF DUE PROCESS IS NOT IN ACCORD WITH
WHAT HAS BEEN DECIDED IN THE CASES ABOVE REFERRED TO. 

THE RECORD SHOWS NO VIOLATION OF EQUAL PROTECTION.  A LICENSED COMMON
CARRIER IS UNDER STRICTER CONTROL THAN AN ORDINARY CONTRACT CARRIER AND
MAY BE ENTRUSTED WITH PRIVILEGES FORBIDDEN TO THE LATTER. 

HERE THE STATE LAW CREATES NO DISCRIMINATION AGAINST INTERSTATE
COMMERCE.  IT IS SUBJECTED TO THE SAME REGULATIONS AS THOSE APPLICABLE
TO INTRASTATE COMMERCE. 

THE MOTOR CARRIER ACT OF 1935 IS SAID TO SECURE TO APPELLANT THE
RIGHT CLAIMED, BUT WE CAN FIND NOTHING THERE WHICH UNDERTAKES TO
DESTROY STATE POWER TO PROTECT HER PEOPLE AGAINST THE EVILS OF
INTOXICANTS OR TO SANCTION THE RECEIPT AND CONVEYANCE OF ARTICLES
DECLARED CONTRABAND.  THE ACT HAS NO SUCH PURPOSE OR EFFECT. 

THE POWER OF A STATE TO REGULATE HER INTERNAL AFFAIRS NOTWITHSTANDING
THE CONSEQUENT EFFECT UPON INTERSTATE COMMERCE WAS MUCH DISCUSSED IN
SOUTH CAROLINA HWY.  DEPT.  V. BARNWELL BROS., 303 U.S. 177, 189. 
THERE IT WAS AGAIN AFFIRMED THAT ALTHOUGH REGULATION BY THE STATE MIGHT
IMPOSE SOME BURDEN ON INTERSTATE COMMERCE THIS WAS PERMISSIBLE WHEN "AN
INSEPARABLE INCIDENT OF THE EXERCISE OF A LEGISLATIVE AUTHORITY, WHICH,
UNDER THE CONSTITUTION, HAS BEEN LEFT TO THE STATES."  IN THE ABSENCE
OF CONTROLLING LANGUAGE TO THE CONTRARY - AND THERE IS NONE - THE
FEDERAL MOTOR CARRIER ACT SHOULD NOT BE BROUGHT INTO CONFLICT WITH THIS
REITERATED DOCTRINE.    THE CHALLENGED DECREE MUST BE AFFIRMED. 

FN1  AUG. 9, 1935, C. 498, 49 STAT. 543; U.S.C. TITLE 49, SEC. 301,
ET SEQ. 

FN2  KENTUCKY ACTS 1938, CH. 2; BALDWIN'S SUPP. TO CARROLL'S STATUTES
1936, CH. 81, SEC. 2554B-97, ET SEQ. 

FN3  BALDWIN'S SUPPLEMENT TO CARROLL'S KENTUCKY STATUTES 1936, SEC.
2554B-150. 

FN4  ID., SEC. 2554B-151.  "THE FOLLOWING PROPERTY IS HEREBY DECLARED
TO BE CONTRABAND:  (1) ANY ILLICIT STILL DESIGNED FOR THE UNLAWFUL
MANUFACTURE OF INTOXICATING LIQUORS, OR ANY APPARATUS DESIGNED FOR THE
UNLAWFUL MANUFACTURE OF SPIRITUOUS, VINOUS, MALT OR INTOXICATING
LIQUORS.  AN ILLICIT STILL OR APPARATUS DESIGNED FOR THE UNLAWFUL
MANUFACTURE OF INTOXICATING LIQUORS SHALL INCLUDE (A) AN OUTFIT OR
PARTS OF AN OUTFIT COMMONLY USED, OR INTENDED TO BE USED, IN THE
DISTILLATION OR MANUFACTURE OF SPIRITUOUS, VINOUS OR MALT LIQUORS WHICH
IS NOT DULY REGISTERED IN THE OFFICE OF A COLLECTOR OF INTERNAL REVENUE
FOR THE UNITED STATES, AND THE BURDEN OF PROVING THAT SAME IS SO
REGISTERED SHALL BE ON THE DEFENDANT OR DEFENDANTS UNDER CHARGE; (B)
ANY AND ALL MATERIAL, EQUIPMENT, IMPLEMENTS, DEVICES, FIREARMS, AND
OTHER PROPERTY USED OR INTENDED FOR USE, DIRECTLY AND IMMEDIATELY, IN
CONNECTION WITH THE ILLICIT TRAFFIC IN ALCOHOLIC BEVERAGES.  (2) ANY
SPIRITUOUS, VINOUS OR MALT LIQUORS IN THE POSSESSION OF ANY ONE NOT
ENTITLED TO POSSESSION OF THE SAME UNDER THE PROVISIONS OF THIS ACT. 
(3) ANY SPIRITUOUS, VINOUS OR MALT LIQUORS IN THE POSSESSION OF ANY ONE
AND TO WHICH THE REVENUE STAMPS HAVE NOT BEEN AFFIXED AS AND WHEN
REQUIRED BY THE PROVISIONS OF THE ALCOHOLIC BEVERAGE TAX ACT, SECTIONS
4281C-1 TO AND INCLUDING 4281C-25, CARROLL'S KENTUCKY STATUTES, ONE
THOUSAND NINE HUNDRED AND THIRTY-SIX (1936) EDITION.  (4) ANY DISTILLED
SPIRITS, WINE OR MALT BEVERAGE IN A CONTAINER OF A SIZE PROHIBITED BY
LAW OR PROHIBITED THE PARTICULAR PARTY IN WHOSE POSSESSION SAME IS
FOUND.  (5) ANY DISTILLED SPIRITS OR WINE KEPT IN AN UNAUTHORIZED PLACE
WITHIN ANY LICENSED PREMISES UNDER THE PROVISIONS OF SECTION 77 OF THIS
ACT.  (6) ANY MOTOR VEHICLE, WATER OR AIR CRAFT, OR OTHER VEHICLE IN
WHICH ANY PERSON IS ILLEGALLY POSSESSING OR TRANSPORTING ALCOHOLIC
BEVERAGES." 

FN5  ID., SEC. 2554B-114. 

FN6  ID., SEC. 2554B-114(7). 

FN7  ID., SEC. 2554B-118. 

FN8  ID., SEC. 2554B-119. 

FN9  ID., SEC. 2554B-124. 

FN10  ID., SEC. 2554B-154(7). 

FN11  ID., SEC. 2554B-190. 

FN12  ID., SEC. 2554B-131. 

FN13  ID., SEC. 2554B-134(5). 

FN14  ID., SEC. 2554B-135. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





VALVOLINE OIL CO. V. U.S., 308 U.S. 141 


NO. 25.  ARGUED OCTOBER 19, 1939.  - DECIDED NOVEMBER 13, 1939.  - 25
F.SUPP.  460, AFFIRMED. 


1.  AN OIL COMPANY OWNING AND OPERATING A PIPE LINE THROUGH WHICH IT
TRANSPORTS TO ITS OWN REFINERIES FOR ITS OWN REFINING PURPOSES, PARTLY
ACROSS STATE LINES, OIL WHICH IT PURCHASES FROM PRODUCERS AT THE MOUTHS
OF THEIR WELLS, IS AN INTERSTATE "PIPE-LINE COMPANY" AND A "COMMON
CARRIER" WITHIN THE MEANING OF SEC. 1(1)(B), AND (3), OF THE INTERSTATE
COMMERCE ACT, AND UNDER SEC. 19A (A) AND (E) MAY CONSTITUTIONALLY BE
REQUIRED BY THE COMMISSION TO FURNISH MAPS, CHARTS AND SCHEDULES OF ITS
PIPE-LINE PROPERTIES, FOR USE IN VALUING SUCH PROPERTIES UNDER THAT

2.  IN SEC. 1(B)(3) OF THE INTERSTATE COMMERCE ACT WHICH PROVIDES
THAT THE TERM "COMMON CARRIER" SHALL INCLUDE "ALL PIPE-LINE COMPANIES;
EXPRESS COMPANIES; SLEEPING-CAR COMPANIES; AND ALL PERSONS, NATURAL OR
ARTIFICIAL, ENGAGED IN SUCH TRANSPORTATION OR TRANSMISSION AS AFORESAID
AS COMMON CARRIERS FOR HIRE," THE FINAL CLAUSE IS CONJUNCTIVE, NOT A
MODIFIER, AND DOES NOT AFFECT THE GENERALITY OF THE FIRST CLAUSE AS TO
PIPE-LINE COMPANIES.  P. 145. 

3.  THE VALUATION PROVISIONS, SEC. 19A (A) AND (E) ARE SO FAR
SEPARABLE FROM THE REGULATORY PROVISIONS OF THE ACT THAT IN A SUIT TO
SET ASIDE AN ORDER UNDER THAT SECTION THE QUESTION WHETHER THE PIPE
LINE OWNER IF SUBJECTED TO REGULATION OF ITS RATES, ETC., AS A COMMON
CARRIER WOULD BE DEPRIVED OF PROPERTY WITHOUT DUE PROCESS DOES NOT
PROPERLY ARISE.  P. 146. 

4.  THE VALIDITY OF THE PROVISIONS OF SEC. 19A (A) AND (E) OF THE ACT
DOES NOT DEPEND UPON THE EXTENT OF A PIPE-LINE COMPANY'S OPERATIONS. 
ID. 

VALVOLINE OIL CO. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF PENNSYLVANIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES, WHICH
DISMISSED A BILL TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE
COMMISSION. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE VALVOLINE OIL COMPANY APPEALS  FN1  FROM THE FINAL DECREE OF A
THREE-JUDGE DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA,
UNDER THE URGENT DEFICIENCIES ACT,  FN2  DISMISSING A PETITION TO
ENJOIN AND ANNUL AN ORDER OF THE INTERSTATE COMMERCE COMMISSION.  THE
ORDER, REQUIRING APPELLANT TO FILE WITH THE COMMISSION CERTAIN MAPS,
CHARTS AND SCHEDULES OF ITS PIPE-LINE PROPERTIES FOR USE IN VALUING THE
PROPERTIES UNDER SEC. 19A OF THE INTERSTATE COMMERCE ACT, WAS MADE
AFTER A DETERMINATION BY THE COMMISSION THAT APPELLANT WAS "ENGAGED IN
THE TRANSPORTATION OF OIL BY PIPE LINE IN INTERSTATE COMMERCE AND THAT
IT IS A COMMON CARRIER SUBJECT TO THE PROVISIONS OF THE INTERSTATE
COMMERCE ACT." 

THROUGH 1,426 MILES OF PIPE LINE, RUNNING TO 9,020 WELLS IN
PENNSYLVANIA, WEST VIRGINIA AND OHIO, VALVOLINE GATHERS SOME 75,000
BARRELS OF OIL PER MONTH FOR ITS TWO REFINERIES IN PENNSYLVANIA WHICH
MANUFACTURE THE PRODUCTS DISTRIBUTED BY VALVOLINE TO THE TRADE.  ALL OF
THIS OIL IS PURCHASED FROM PRODUCERS AT THE WELL, 50 PER CENT
ORIGINATING IN PENNSYLVANIA, 38 PER CENT IN WEST VIRGINIA, AND 12 PER
CENT IN OHIO.  AT THE TIME OF THE FINAL ORDER OF THE COMMISSION WHICH
IT CHALLENGES HERE, VALVOLINE WAS SELLING SURPLUS OIL, NOT NEEDED IN
ITS OWN OPERATIONS, TO A REFINERY IN PENNSYLVANIA AND TO ANOTHER IN
WEST VIRGINIA, BUT NONE OF THIS CAME FROM OUT OF THE STATE OF THE
REFINERY.  BECAUSE, THUS, IT DOES NOT TRANSPORT INTERSTATE OTHER OIL
THAN THAT WHICH IT PURCHASES AT THE WELL FOR ITS OWN USE, VALVOLINE
CLAIMS THAT IT IS NOT A COMMON CARRIER OF OIL SUBJECT TO THE INTERSTATE
COMMERCE ACT, OR, SHOULD IT BE HELD TO COME WITHIN THE TERMS OF THE
STATUTE, THAT THE STATUTE IS UNCONSTITUTIONAL AS TO IT IN THAT THE
PROVISIONS VIOLATE DUE PROCESS BY TAKING THE CARRIER'S PROPERTY FOR
PUBLIC USE WITHOUT COMPENSATION. 

APPELLANT URGES AS REASONS WHY IT IS NOT A COMMON CARRIER WITHIN THE
PROVISIONS OF THE INTERSTATE COMMERCE ACT THAT ITS PIPE LINES ARE USED
PRIMARILY TO TRANSPORT OIL TO ITS OWN REFINERIES, THAT IT IS NOT
CLOTHED WITH A PUBLIC INTEREST, THAT THE OIL FLOWING THROUGH ITS LINES
IS NOT IN COMMERCE UNTIL AFTER PREPARATION FOR MARKET, AND THAT, SINCE
THE PURPOSE OF SEC. 19A (A) AND (E) OF THE INTERSTATE COMMERCE ACT IN
REQUIRING VALUATION DATA IS TO FURNISH A BASIS FOR THE ESTABLISHMENT OF
TRAFFIC AND RATES, THE REPORT REQUIRED IS THE FIRST STEP IN GENERAL
REGULATION TO WHICH IT IS NOT SUBJECT.  THE PERTINENT PROVISIONS OF THE
ACT ARE SET OUT IN THE MARGIN.  FN3 

THERE IS NO CONTROVERSY OVER WHETHER APPELLANT IS AN INTERSTATE PIPE
LINE COMPANY.  OBVIOUSLY IT IS.  THE CONTENTIONS ABOVE ARE ADVANCED TO
SHOW IT IS NOT SUBJECT TO THE ACT.  SECTION 1(3) DEFINES COMMON CARRIER
TO INCLUDE "ALL PIPE-LINE COMPANIES."  IF THIS DEFINITION IS NOT
LIMITED BY THE SUBSEQUENT CLAUSE "ENGAGED  ...  AS COMMON CARRIERS FOR
HIRE," EXTENDED CONSIDERATION OF THESE CHARACTERISTICS OF A PRIVATE
CARRIER IS UNNECESSARY AS THE LANGUAGE OF THE DEFINITION IS DECISIVE. 

THE PRACTICE OF COMPELLING PRODUCERS TO SELL AT THE WELL BEFORE
ADMITTING THEIR OIL TO THE LINES WAS WIDELY USED AS A MEANS OF
MONOPOLIZING THE PRODUCT BEFORE THE HEPBURN AMENDMENT IN 1906.  FN4
WHETHER THE OIL SO OWNED AND TRANSPORTED WAS ULTIMATELY USED BY THE
CARRIER IN ITS OWN OPERATIONS OR SOLD TO OTHERS WAS IN THIS CONNECTION
IMMATERIAL.  CERTAINLY ONE WOULD FIND A PUBLIC INTEREST IN THE SOLE
MEANS OF TRANSPORTING THIS COMMODITY FROM THOUSANDS OF WELLS FOR
THOUSANDS OF PRODUCERS.  THIS WAS COVERED BY THE PIPE LINE DECISION. 
THERE IT WAS STATED THAT COMMERCE IS NOT DEPENDENT ON TITLE, "AND THE
FACT THAT THE OILS TRANSPORTED BELONGED TO THE OWNER OF THE PIPE LINE
IS NOT CONCLUSIVE AGAINST THE TRANSPORTATION BEING SUCH COMMERCE."  THE
APPLICABLE SECTION OF THE INTERSTATE COMMERCE ACT AT THE TIME OF THE
PIPE LINE CASES READ: 

THAT THE PROVISIONS OF THIS ACT SHALL APPLY TO ANY PERSON OR PERSONS
ENGAGED IN THE TRANSPORTATION OF OIL OR OTHER COMMODITY, EXCEPT WATER
AND EXCEPT NATURAL OR ARTIFICIAL GAS, BY MEANS OF PIPE LINES, OR PARTLY
BY PIPE LINES AND PARTLY BY WATER, WHO SHALL BE CONSIDERED AND HELD TO
BE COMMON CARRIERS WITHIN THE MEANING AND PURPOSE OF THIS ACT.  THIS
COURT CONSTRUED THAT SECTION TO COVER THOSE WHO WERE COMMON CARRIERS IN
SUBSTANCE EVEN IF NOT IN TECHNICAL FORM AND READ IT THAT THOSE "ENGAGED
IN THE TRANSPORTATION OF OIL  ...  BY MEANS OF PIPE LINES" SHALL BE
TREATED AS COMMON CARRIERS UNDER THE ACT.  THE LAST CLAUSE WAS HELD NOT
"TO CUT DOWN THE GENERALITY" OF THE ACT. 

IN THE PRESENT ACT THERE IS A CHANGE OF LANGUAGE BUT WE PERCEIVE NONE
IN MEANING.  SPEAKING OF THE AMENDMENTS OF THE TRANSPORTATION ACT OF
1920, WHICH RECAST THE HEPBURN AMENDMENT INTO THE PRESENT FORM, THE
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE REPORTED THAT THE
LANGUAGE IN SEVERAL RESPECTS, BUT MAKING NO IMPORTANT CHANGES IN
POLICY."  FN5  AS NOW WRITTEN THE SECTION BRINGS RAILROADS UNDER THE
ACT BY MEANS OF THE LAST CLAUSE OF SUBSECTION (3) ONLY.  FN6  THIS
CLAUSE IS A CONJUNCTIVE, NOT A MODIFIER.  IT DOES NOT AFFECT THE
GENERALITY OF THE FIRST CLAUSE AS TO PIPE-LINE COMPANIES. 

THE APPELLANT RELIES UPON THE PIPE LINE CASES TO SHOW THAT THE
PRESENT ACT DOES NOT COVER A PIPE LINE TRANSPORTING OIL FOR ITS OWN
REFINING PURPOSES ONLY.  THE DISCUSSION REFERRED TO IS THAT CONCERNING
THE UNCLE SAM OIL COMPANY.  BUT THAT COMPANY'S PIPE LINE WAS USED FOR
THE "SOLE PURPOSE OF CONDUCTING OIL FROM ITS OWN WELLS TO ITS OWN
REFINERY."  THIS WAS HELD NOT TO BE TRANSPORTATION UNDER THE ACT. 
HERE, HOWEVER, IT IS THE PURCHASE FROM MANY SOURCES AND SUBSEQUENT
CARRIAGE THAT DETERMINE THE APPLICABILITY OF THE STATUTE TO VALVOLINE. 

APPELLANT PRESSES ITS ARGUMENT BEYOND THE QUESTION WHETHER IT COMES
UNDER THE ACT.  IF IT DOES, IT URGES, THE ACT IS IN VIOLATION OF THE
DUE PROCESS CLAUSE IN THAT BY THE INVOLUNTARY CHANGE OF STATUS FROM
PRIVATE TO COMMON CARRIER ITS PROPERTY IS TAKEN.  IT LOOKS UPON THE
VARIOUS REGULATORY PROVISIONS OF THE INTERSTATE COMMERCE ACT AS
INSEPARABLE FROM THE VALUATION PROVISIONS OF SEC. 19A (A) AND (E).  THE
LOSSES FEARED, FROM PRESENT OR FUTURE LEGISLATION OTHER THAN THE
VALUATION PROVISIONS, MAY NEVER OCCUR.  THE DATA REQUIRED BY THE
PRESENT ORDER MAY NEVER BE USED TO FIX RATES.  NO SUCH INFORMATION AS
TO OTHER PIPE LINES HAS BEEN SO USED.  PUBLICITY ALONE MAY GIVE
EFFECTIVE REMEDY TO ABUSES, IF ANY THERE BE.  FN7  THIS LEGISLATION WAS
INTENDED TO FREE INTERSTATE COMMERCE IN OIL FROM PRACTICES BELIEVED TO
BE DETRIMENTAL, AND IN THAT CONNECTION ACCESSIBILITY OF VALUATION
INFORMATION TO THE CONGRESS IS ESSENTIAL.  ITS SEPARATE SIGNIFICANCE
BEING APPARENT, WE CONFINE OURSELVES TO SEC. 19A (A) AND (E).  THE
CONSTITUTIONALITY OF SUCH REQUIREMENTS WAS SETTLED BY THE PIPE LINE
CASES AND WE SEE NOTHING THAT EXCEPTS APPELLANT FROM THEIR EFFECT.  THE
SMALLNESS OF THE OPERATION IS IMMATERIAL.  FN8  AFFIRMED. 

FN1  JUDICIAL CODE SEC. 238, 28 U.S.C. SEC. 345. 

FN2  38 STAT. 220, 28 U.S.C. SECS. 47, 47A. 

FN3  SEC. 1.  (1)  THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO
COMMON CARRIERS ENGAGED IN - 

     .         .         .         .   . 

(B)  THE TRANSPORTATION OF OIL OR OTHER COMMODITY, EXCEPT WATER AND
EXCEPT NATURAL OR ARTIFICIAL GAS, BY PIPE LINE, OR PARTLY BY PIPE LINE
AND PARTLY BY RAILROAD OR BY WATER - 

FROM ONE STATE  ...  TO ANY OTHER STATE.  ... 

(3)  THE TERM "COMMON CARRIER" AS USED IN THIS CHAPTER SHALL INCLUDE
ALL PIPE-LINE COMPANIES; EXPRESS COMPANIES; SLEEPING-CAR COMPANIES; AND
ALL PERSONS, NATURAL OR ARTIFICIAL, ENGAGED IN SUCH TRANSPORTATION (OR
TRANSMISSION) AS AFORESAID AS COMMON CARRIERS FOR HIRE. 

     .         .         .         .         . 

SEC. 19A.  (A)  THE COMMISSION SHALL, AS HEREINAFTER PROVIDED,
INVESTIGATE, ASCERTAIN, AND REPORT THE VALUE OF ALL THE PROPERTY OWNED
OR USED BY EVERY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS
CHAPTER.  ... 

(E)  EVERY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS CHAPTER
SHALL FURNISH TO THE COMMISSION OR ITS AGENTS FROM TIME TO TIME AS THE
COMMISSION MAY REQUIRE MAPS, PROFILES, CONTRACTS, REPORTS OF ENGINEERS,
AND ANY OTHER DOCUMENTS, RECORDS, AND PAPERS, OR COPIES OF ANY OR ALL
OF THE SAME, IN AID OF SUCH INVESTIGATION AND DETERMINATION OF THE
VALUE OF THE PROPERTY OF SAID COMMON CARRIER.  ... 

FN4  34 STAT. 584; SEE 40 CONG. REC. 6365-66; PIPE LINE CASES, 234
U.S. 548, 559. 

FN5  REP. NO. 456, NOV. 10, 1919, TO ACCOMPANY H.R. 10453, 66TH
CONG., 1ST SESS. 

FN6  CF. PENNSYLVANIA R. CO. V. PUBLIC UTILITIES COMM'N, 298 U.S.
170, 174. 

FN7  II SHARFMAN, THE INTERSTATE COMMERCE COMMISSION, 96. 

FN8  NATIONAL LABOR RELATIONS BOARD V. FAINBLATT, 306 U.S. 601, 606. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















MASSACHUSETTS V. MISSOURI, 308 U.S. 1 


NO. - , ORIGINAL.  ARGUED OCTOBER 9, 1939.  - DECIDED NOVEMBER 6, 1939. 
- MOTION FOR LEAVE, DENIED. 


1.  TO CONSTITUTE A CONTROVERSY BETWEEN TWO STATES, WITHIN THE
ORIGINAL JURISDICTION OF THIS COURT, IT MUST APPEAR THAT THE
COMPLAINING STATE HAS SUFFERED A WRONG THROUGH THE ACTION OF THE OTHER
STATE, FURNISHING GROUND FOR JUDICIAL REDRESS, OR IS ASSERTING A RIGHT
AGAINST THE OTHER STATE WHICH IS SUSCEPTIBLE OF JUDICIAL ENFORCEMENT
ACCORDING TO THE ACCEPTED PRINCIPLES OF THE COMMON LAW OR EQUITY
SYSTEMS OF JURISPRUDENCE.  P. 15. 

2.  A BILL BY ONE STATE AGAINST ANOTHER STATE AND CITIZENS OF THE
OTHER, WHICH ALLEGES THAT THE PLAINTIFF HAS ASSESSED A TAX ON THE
TRANSFER BY DEATH OF THE ESTATE OF ONE OF ITS OWN CITIZENS, THE
SATISFACTION OF WHICH DEPENDS UPON RESORT TO INTANGIBLE ASSETS OF THE
DECEDENT CONSISTING OF SECURITIES HELD BY THE INDIVIDUAL DEFENDANTS, AS
TRUSTEES, IN THE DEFENDANT STATE, AND WHICH ALLEGES THAT THE DEFENDANT
STATE CLAIMS AND WILL EXERCISE A RIGHT TO LEVY A LIKE TAX UPON THE
TRANSFER OF THIS INTANGIBLE PROPERTY, AND WHICH PRAYS TO HAVE THE
RESPECTIVE RIGHTS OF THE TWO STATES ADJUDICATED, AND FOR GENERAL
RELIEF, BUT WHICH SHOWS THAT THE PROPERTY IS SUFFICIENT TO ANSWER THE
CLAIMS OF BOTH STATES AND THAT THE CLAIMS ARE NOT MUTUALLY EXCLUSIVE
BUT INDEPENDENT SO THAT EACH STATE MAY CONSTITUTIONALLY PRESS ITS CLAIM
WITHOUT CONFLICT IN POINT OF LAW OR FACT WITH THE DECISION OF THE
OTHER,  - DOES NOT PRESENT A JUSTICIABLE CONTROVERSY BETWEEN THE TWO
STATES.  TEXAS V. FLORIDA, 306 U.S. 398, DISTINGUISHED.  ID. 

3.  STATE STATUTES PURPORTING TO EXEMPT FROM LOCAL TRANSFER TAX
INTANGIBLE ASSETS OF DECEDENTS WHO, AT DEATH, WERE CITIZENS OF OTHER
STATES WHICH GRANT RECIPROCAL EXEMPTIONS, CREATE NO ENFORCEABLE
OBLIGATION BETWEEN THE STATES ENACTING THEM.  P. 16. 

4.  A STATE MAY NOT INVOKE THE ORIGINAL JURISDICTION OF THIS COURT TO
ENFORCE THE INDIVIDUAL RIGHTS OF ITS CITIZENS.  P. 17. 

5.  FEDERAL JURISDICTION TO RENDER A DECLARATORY JUDGMENT DEPENDS ON
THE EXISTENCE OF A CONTROVERSY IN THE CONSTITUTIONAL SENSE.  ID. 

6.  A STATE CAN NOT BE BROUGHT INTO COURT BY MAKING ITS CITIZENS
PARTIES TO A SUIT NOT OTHERWISE MAINTAINABLE AGAINST THE STATE.  ID. 

7.  AN ACTION BY A STATE TO RECOVER MONEY FROM CITIZENS OF ANOTHER
STATE WILL NOT BE ENTERTAINED BY THE COURT IN THE ABSENCE OF FACTS
SHOWING THAT RESORT TO THE ORIGINAL JURISDICTION IS NECESSARY FOR THE
PROTECTION OF THE PLAINTIFF STATE.  P. 18. 

IN THE PRESENT INSTANCE, IT DOES NOT APPEAR THAT MASSACHUSETTS IS
WITHOUT A PROPER AND ADEQUATE REMEDY IN THE MISSOURI COURTS OR THE
FEDERAL DISTRICT COURT IN MISSOURI.  P. 19. 

8.  CLAUSE 2 OF SEC. 2 OF ARTICLE III OF THE CONSTITUTION MERELY
DISTRIBUTES THE JURISDICTION CONFERRED BY CLAUSE 1.  ID. 

9.  THE ORGINAL JURISDICTION OF THIS COURT, IN CASES WHERE A STATE IS
A PARTY, REFERS TO THOSE CASES IN WHICH, ACCORDING TO THE GRANT OF
POWER MADE IN ART. III, SEC. 2, CL. 1, JURISDICTION MIGHT BE EXERCISED
IN CONSEQUENCE OF THE CHARACTER OF THE PARTY, AND AN ORIGINAL SUIT
MIGHT BE INSTITUTED IN ANY OF THE FEDERAL COURTS.  COHENS V. VIRGINIA,
6 WHEAT.  264.  ID. 

10.  THE OBJECTION THAT THE COURTS IN ONE STATE WILL NOT ENTERTAIN A
SUIT TO RECOVER TAXES DUE TO ANOTHER OR UPON A JUDGMENT FOR SUCH TAXES,
GOES NOT TO THE JURISDICTION BUT TO THE MERITS, AND RAISES A QUESTION
WHICH THE DISTRICT COURTS ARE COMPETENT TO DECIDE.  P. 20. 

MASSACHUSETTS V. MISSOURI ET AL. 

ON MOTION FOR LEAVE TO FILE AN ORIGINAL BILL IN THIS COURT AND THE
RETURN TO AN ORDER TO SHOW CAUSE. 

UNDER GRAVES V. ELLIOTT, 307 U.S. 383, DECEDENT'S RIGHT TO REVOKE HAD
THE ATTRIBUTE OF PROPERTY, AND CONTROL OF HER PERSON AND ESTATE AT THE
PLACE OF HER DOMICIL AFFORDED CONSTITUTIONAL BASIS FOR IMPOSITION OF
THE TAX. 

UNDER THAT CASE AND CURRY V. MCCANLESS, 307 U.S. 357, MISSOURI ALSO
CAN TAX THE TRANSFER, THOUGH WHETHER ITS STATUTES EXERCISE THAT POWER
WITH RESPECT TO THE PRESENT TRUSTS, IN VIEW OF THE RECIPROCITY
PROVISION OF THE STATUTE, IS ANOTHER QUESTION.  AS THE MASSACHUSETTS
TAX IS IMPOSED UPON THE TRUSTEES, WHO ARE RESIDENTS OF MISSOURI,
MASSACHUSETTS CAN ENFORCE THE TAX ONLY BY RECOURSE TO THE MISSOURI OR
FEDERAL COURTS.  THE TRUSTEES DENY THEIR LIABILITY TO PAY, ON THE
GROUND THAT MASSACHUSETTS HAS NO JURISDICTION TO IMPOSE IT.  THERE
EXISTS, THEREFORE, A CONTROVERSY BETWEEN THAT STATE AND CITIZENS OF
MISSOURI. 

THE PURPOSE OF VESTING IN THE COURTS OF THE UNITED STATES
JURISDICTION OF SUITS BY ONE STATE AGAINST THE CITIZENS OF ANOTHER "WAS
TO ENABLE SUCH CONTROVERSIES TO BE DETERMINED BY A NATIONAL TRIBUNAL,
AND THEREBY TO AVOID THE PARTIALITY, OR SUSPICION OF PARTIALITY, WHICH
MIGHT EXIST IF THE PLAINTIFF STATE WERE COMPELLED TO RESORT TO THE
COURTS OF THE STATE OF WHICH THE DEFENDANTS WERE CITIZENS." 
MASSACHUSETTS V. MELLON, 262 U.S. 447, 480, 481; WISCONSIN V. PELICAN
INS. CO., 127 U.S. 265, 289; CHISHOLM V. GEORGIA, 2 DALL.  419, 475;
STORY ON THE CONSTITUTION, SECS. 1638, 1682.  AND IF THE FACTS PRESENT
SUCH A CASE, THE COURT MAY NOT DENY JURISDICTION BECAUSE NUMEROUS
SIMILAR CASES MIGHT "BE BROUGHT WITHIN ITS COGNIZANCE."  MINNESOTA V.
HITCHCOCK, 185 U.S. 373. 

A SUIT AGAINST AN INDIVIDUAL TO COLLECT A TAX CLEARLY PRESENTS A
JUSTICIABLE CONTROVERSY DETERMINABLE "ACCORDING TO ACCEPTED DOCTRINES
OF THE COMMON LAW OR EQUITY SYSTEMS OF JURISPRUDENCE."  UNITED STATES
V. CHAMBERLIN, 219 U.S. 250; MILWAUKEE COUNTY V. M.E. WHITE CO., 296
U.S. 268, 271; MEREDITH V. UNITED STATES, 13 PET. 486; DOLLAR SAVINGS
BANK V. UNITED STATES, 19 WALL.  227; UNITED STATES V. PHILADELPHIA &
READING R. CO., 123 U.S. 113. 

A JUDGMENT FOR A TAX IS ONE WHICH IS ENTITLED TO FULL FAITH AND
CREDIT UNDER THE CONSTITUTION.  MILWAUKEE COUNTY V. M.E. WHITE CO., 296
U.S. 268. 

THE MASSACHUSETTS INHERITANCE TAX IS A STATUTORY LIABILITY QUASI
CONTRACTUAL IN NATURE, SUBJECT TO ENFORCEMENT BY SUIT.  THE RULE,
ADOPTED IN SOME JURISDICTIONS BUT DENIED IN OTHERS, THAT THE COURTS OF
ONE STATE WILL NOT ENFORCE THE REVENUE LAWS OF ANOTHER STATE, HAS BEEN
SEVERELY CRITICIZED (29 COL. L.R. 782; 48 HARV. L.R. 828) AND ITS
VALIDITY IS AN OPEN QUESTION IN THIS COURT.  MILWAUKEE COUNTY V. M.E.
WHITE CO., 296 U.S. 268, 275; MOORE V. MITCHELL, 281 U.S. 18, 24. 

THE RULE OF WISCONSIN V. PELICAN INS. CO., 127 U.S. 265, SHOULD NOT
BE EXTENDED TO A SUIT FOR ENFORCEMENT OF REVENUE LAWS.  MILWAUKEE
COUNTY V. M.E. WHITE CO., SUPRA. 

THERE IS PRESENTED A CONTROVERSY BETWEEN MASSACHUSETTS AND MISSOURI. 
IN VIEW OF RECENT DECISIONS (CURRY V. MCCANLESS, SUPRA; GRAVES V.
ELLIOTT, SUPRA; WORCESTER COUNTY CO. V. RILEY, 302 U.S. 292, 299; NEW
JERSEY V. PENNSYLVANIA, 287 U.S. 580) THE STATES, HAVING SURRENDERED
THEIR RIGHTS TO MAKE TREATIES INTER SESE, MUST FIND THEIR ONLY REMEDY
AGAINST DOUBLE TAXATION IN RECIPROCAL LEGISLATION.  FIRST NATIONAL BANK
OF BOSTON V. MAINE, 284 U.S. 312, 334; KIDD V. ALABAMA, 188 U.S. 730,
732.  BOTH MASSACHUSETTS AND MISSOURI HAVE RESORTED TO THIS EXPEDIENT. 
MASSACHUSETTS AND ITS RESIDENTS, THEREFORE, ARE ENTITLED TO THE
IMMUNITY OFFERED BY THE MISSOURI STATUTE. 

IF THE EVILS OF MULTIPLE TAXATION ARE TO BE SOLVED BY RECIPROCAL
LEGISLATION OF THE STATES, AS THIS COURT HAS ITSELF SUGGESTED, IT IS
ESSENTIAL THAT THERE BE A FORUM WHERE RECALCITRANT STATES MAY BE
COMPELLED TO OBSERVE THE RECIPROCITY THEIR LEGISLATURES HAVE PROVIDED. 
THE SUPREME COURT IS THE ONLY AVAILABLE FORUM. 

IF THE COURT HAS JURISDICTION UPON EITHER GROUND BUT NOT THE OTHER,
THE JURISDICTION IS NOT LOST BECAUSE OF THE JOINDER OF PARTIES NOT
NECESSARY TO SUCH JURISDICTION. 

THE CONTROVERSIES IN THIS CASE ARE JUSTICIABLE BECAUSE THEY ARE OF A
CIVIL NATURE AND ARISE BETWEEN STATES OF THE UNION AND BETWEEN A STATE
AND CITIZENS OF ANOTHER STATE.  THEY EXIST NOTWITHSTANDING THE ABSENCE
OF CONSTITUTIONAL RESTRAINTS ON DOUBLE TAXATION.  DISTINGUISHING CURRY
V. MCCANLESS, 307 U.S. 357; GRAVES V. ELLIOTT, 307 U.S. 383.  BECAUSE
OF THE FACTS IN THIS CASE, AND THE RECIPROCAL EXEMPTION CONTAINED IN
THE LAW OF MISSOURI, THERE CAN HERE BE ONLY ONE TAX, IF IN TRUTH THERE
CAN BE ANY TAX AT ALL.  IN SUCH A SITUATION A CONTROVERSY ARISES
APPROPRIATELY TO BE DECIDED BY A COURT UPON AN ANALOGY TO INTERPLEADER
UNDER THE PRINCIPLE RECENTLY DECIDED BY THIS COURT IN TEXAS V. FLORIDA,
306 U.S. 398. 

CONTROVERSIES BETWEEN THE STATES OF MASSACHUSETTS AND MISSOURI ARISE
BECAUSE EACH DENIES THE RIGHT OF THE OTHER TO TAX.  A CONTROVERSY
ARISES FROM THE ASSERTION BY MASSACHUSETTS OF THE VALIDITY OF ITS TAX
LAWS IN MISSOURI.  THROUGHOUT THE EIGHTEENTH AND NINETEENTH CENTURIES
ENGLISH COURTS HAVE ANNOUNCED THE DOCTRINE IN DICTA THAT NO NATION WILL
TAKE NOTICE OF THE REVENUE LAWS OF ANOTHER.  IN AMERICA THE DOCTRINE
HAS BEEN FOLLOWED AND APPLIED IN LUDLOW V. VAN RENSSELAER, 1 JOHNSON
94; MARYLAND V. TURNER, 132 N.Y.S. 173; COLORADO V. HARBECK, 232 N.Y.
71; NEW YORK TRUST CO. V. ISLAND OIL & TRANSPORT CORP., 11 F.2D 698;
MOORE V. MITCHELL, 30 F.2D 600; 281 U.S. 18. 

THIS COURT HAS FOUND IT UNNECESSARY TO DECIDE WHETHER A STATE MIGHT
HAVE EXTRATERRITORIAL ENFORCEMENT OF ITS REVENUE LAWS IN AN ORIGINAL
ACTION OUTSIDE THE TAXING STATE, AS DISTINGUISHED FROM A SUIT ON A
JUDGMENT OBTAINED IN THE TAXING STATE ON PERSONAL SERVICE.  MOORE V.
MITCHELL, SUPRA; MILWAUKEE COUNTY V. M.E. WHITE CO., 296 U.S. 268.  THE
ISSUES, AS SUGGESTED BY COLORADO V. HARBECK, 232 N.Y. 71, AND MOORE V.
MITCHELL, SUPRA, GO DEEPER THAN OBJECTIONS TO EXTRATERRITORIAL
COLLECTION.  THEY INVOLVE QUESTIONS OF THE VITALITY OF THE TAXING LAW
ITSELF WHEN SOUGHT TO BE APPLIED TO RAISE OBLIGATIONS AND IMPOSE LIENS
WITHIN THE CONFINES OF ANOTHER STATE.  THE ATTEMPT OF MASSACHUSETTS
HERE IS TO IMPOSE A CONTRACTUAL LIABILITY UPON TRUSTEES WHO NEITHER
MADE THEMSELVES AMENABLE TO, NOR SOUGHT THE PROTECTION IN ANY WAY OF,
THE COMMONWEALTH, AND TO REACH OVER INTO MISSOURI IN THE ATTEMPTED
IMPRESSMENT OF A LIEN ON ASSETS HELD IN MISSOURI.  MASSACHUSETTS IS
ATTEMPTING TO BASE HER RIGHT UPON REVENUE LAWS CLAIMED TO HAVE
EXTRATERRITORIAL EFFECT. 

A CONTROVERSY ARISES FROM THE DENIAL BY MISSOURI OF THE EFFECT OF HER
RECIPROCITY STATUTE.  THE EXTENT OF RECIPROCAL LEGISLATION WAS
COMMENTED UPON IN FARMERS LOAN & TRUST CO. V. MINNESOTA, 280 U.S. 204,
WHERE IT WAS SAID THAT THIRTY-FIVE STATES HAD ALREADY IN SOME FORM
GRANTED RELIEF AGAINST DOUBLE TAXATION. 

IN VIEW OF THE HOLDING IN CURRY V. MCCANLESS, SUPRA, AND GRAVES V.
ELLIOTT, SUPRA, THE NEED FOR RECIPROCAL LEGISLATION TO AVOID THE EVILS
OF DOUBLE TAXATION BECOMES OF PARAMOUNT IMPORTANCE.  SEE, ORR,
"RECIPROCAL EXEMPTIONS FROM INHERITANCE TAXATION," 18 BOSTON UNIVERSITY
LAW REV. 39. 

HAS NOT MASSACHUSETTS AN INTEREST IN THE QUESTION WHETHER MISSOURI
LEGALLY WITHHOLDS THE EXEMPTION GRANTED BY HER STATUTE? 

ENACTMENT OF MUTUAL RECIPROCITY LAWS IS ASSUMPTION OF MUTUAL
OBLIGATIONS BETWEEN THE STATES.  THERE WAS SOMETHING OF THE NATURE OF A
CONTINUING, ALTHOUGH REVOCABLE, OFFER TO OTHER STATES, FOR THE DURATION
OF A RECIPROCITY LAW, TO GRANT EXEMPTIONS IN RESPECT OF PROPERTY OF
CITIZENS OF OTHER STATES, IF THE STATES OF THEIR DOMICILES GRANTED
SIMILAR EXEMPTIONS IN RESPECT OF PROPERTY OF CITIZENS OF THE
LEGISLATING STATE.  THIS WAS NOT MERE COMITY, SINCE IT CONTEMPLATED A
QUID PRO QUO.  THE MISSOURI RECIPROCITY STATUTE WAS MORE THAN A MERE
EXEMPTION LAW.  THE NATURE OF MISSOURI'S OBLIGATION TO MASSACHUSETTS IS
MUCH LIKE THE CONTRACTUAL OBLIGATION EXPRESSED IN SECS. 85 AND 90 OF
THE AMERICAN LAW INSTITUTE'S RESTATEMENT OF THE LAW OF CONTRACTS. 

THE INTEREST OF A STATE SUCH AS MASSACHUSETTS GRANTING AN EXEMPTION
AND CLAIMING RECIPROCITY TRANSCENDS AN INTEREST IN THE INDIVIDUAL
BENEFITS TO ACCRUE TO ITS OWN CITIZENS.  FLORIDA V. MELLON, 273 U.S.
12, 16.  IT IS A PUBLIC INTEREST WHICH MASSACHUSETTS HAS IN THE
RECIPROCAL EXEMPTIONS UPON WHICH ITS OWN EXEMPTIONS ARE POSTULATED. 
MISSOURI SHOULD NOT BE PERMITTED, UNLESS SHE CAN SHOW JUST CAUSE, TO
VIOLATE HER STATUTE WHEN HER CITIZENS ARE ENTITLED TO EXEMPTIONS IN
MASSACHUSETTS.  THERE WOULD BE A CONSTITUTIONAL INHIBITION AGAINST THE
SUBSEQUENT WITHDRAWAL OF THE BENEFIT CONFERRED AT THE DATE OF MRS.
BLAKE'S DEATH.  CITY BANK FARMERS' TRUST CO. V. NEW YORK CENTRAL R.
CO., 253 N.Y. 49.  RECIPROCITY, IT IS BELIEVED, FURNISHES AN EXPEDIENT
OF ACCORD WITHOUT VIOLATION OF THE COMPACT CLAUSE; FOR THE OBLIGATION
ARISING OUT OF RECIPROCAL LEGISLATION IS NOT SUCH AS REQUIRES THE
CONSENT OF CONGRESS.  THIS IS TRUE BECAUSE (1) THE OBLIGATION, ALTHOUGH
CONTRACTUAL IN NATURE, IS NOT RESTED UPON MANIFESTATION OF ASSENT SO AS
TO FALL WITHIN THE MEANING OF "COMPACT" OR "AGREEMENT" IN THE
CONSTITUTIONAL SENSE, AND (2) NO INTEREST OF THE UNITED STATES IS
INVOLVED.  VIRGINIA V. TENNESSEE, 148 U.S. 503, 518-519; STEARNS V.
MINNESOTA, 179 U.S. 223, 244-245; UNION BRANCH R. CO. V. EAST TENNESSEE
& GEORGIA R. CO., 14 GA. 327, 339; STATE V. JOSLIN, 116 KANS. 615, 618
619. 

A CONTROVERSY ARISES ON THE PART OF EACH STATE AGAINST THE OTHER BY
REASON OF THE EFFECT OF THE OTHER'S TAX UPON ITS PUBLIC CHARITIES. 

CONTROVERSIES BETWEEN THE STATES AND BETWEEN EACH OF THE STATES AND
THE RESPONDENT TRUSTEES ARISE OUT OF THE ATTEMPTS OF EACH STATE TO
COLLECT A TAX UPON THE TRUST PROPERTY IN MISSOURI.  THE SUBJECT MATTER
IS SINGLE.  WITH THE EXISTENCE OF RECIPROCITY, THERE CAN BE NOT MORE
THAN ONE TAX PAYABLE.  THERE BEING NOT MORE THAN A SINGLE LIABILITY,
DAMAGE TO THE RESPONDENT TRUSTEES ARISES FROM THE MULTIPLE ASSERTION OF
CLAIMS.  THE ASSUMPTION OF JURISDICTION BY THIS COURT WOULD AVOID A
MULTIPLICITY OF SUITS.  THE EXISTENCE OF CONTROVERSIES CAPABLE OF BEING
INITIATED IN OTHER COURTS PRESUPPOSES THE ORIGINAL JURISDICTION OF THIS
COURT. 

A REQUEST FOR AN OPINION DOES NOT PRESENT A CASE OR CONTROVERSY. 
UNITED STATES V. WEST VIRGINIA, 295 U.S. 463; TEXAS V. INTERSTATE
COMMERCE COMM'N, 258 U.S. 158; NEW JERSEY V. SARGENT, 269 U.S. 328;
MASSACHUSETTS V. MELLON, 262 U.S. 447. 

MASSACHUSETTS IS ONLY ASKING FOR A DECLARATION OF WHETHER IT, OR
MISSOURI, HAS THE RIGHT TO LEVY AN INHERITANCE TAX, AND "THIS COURT MAY
NOT BE CALLED ON TO GIVE ADVISORY OPINIONS OR TO PRONOUNCE DECLARATORY
JUDGMENTS."  ALABAMA V. ARIZONA, 291 U.S. 286, 291; ASHWANDER V.
T.V.A., 297 U.S. 288, 324; ARIZONA V. CALIFORNIA, 283 U.S. 423;
PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553. 

THE SUPPOSED DISPUTE IS POLITICAL AND THEREFORE NOT JUSTICIABLE. 
FOWLER V. LINDSEY, 3 DALL.  410; VIRGINIA V. WEST VIRGINIA, 11 WALL. 
39; GEORGIA V. STANTON, 6 WALL.  50; MASSACHUSETTS V. MELLON, SUPRA;
KANSAS V. COLORADO, 185 U.S. 125; RHODE ISLAND V. MASSACHUSETTS, 12
PET. 657. 

THERE IS NO DIRECT CONFLICT OF INTERESTS BETWEEN THE TWO STATES.  THE
TRUST ASSETS ARE FAR MORE THAN ADEQUATE FOR THE PAYMENT OF THE TOTAL
TAXES CLAIMED BY THEM BOTH.  DISTINGUISHING TEXAS V. FLORIDA, 306 U.S.
398.  THE CLAIMS OF THE TWO ARE COMPLETELY INDEPENDENT, ARE NOT
MUTUALLY EXCLUSIVE IN ANY WAY, AND MISSOURI HAS NEITHER DONE NOR
THREATENED ANY ACT TENDING TO INTERFERE WITH THE COLLECTION BY
MASSACHUSETTS OF ITS ASSERTED TAX.  MUSKRAT V. UNITED STATES, 219 U.S.
346. 

MISSOURI IS NOT THREATENING ANY PRIVATE OR PROPERTY RIGHT OF
MASSACHUSETTS.  THE COURT HAS DECLARED THAT ONLY CERTAIN TYPES OF STATE
RIGHTS WILL BE PROTECTED FROM THREATENED INVASION.  OKLAHOMA V.
ATCHISON, T. & S.F. RY. CO., 220 U.S. 277; GEORGIA V. STANTON, 6 WALL. 
50, 77; UNITED STATES V. WEST VIRGINIA, 295 U.S. 463. 

THE RIGHT TO TAX IS AN ATTRIBUTE OF GENERAL SOVEREIGNTY, AS
DISTINGUISHED FROM A PROPERTY RIGHT.  MCCULLOCH V. MARYLAND, 4 WHEAT. 
316, 428; PROVIDENCE BANK V. BILLINGS, 4 PET. 514, 564; CASE OF THE
STATE FREIGHT TAX, 15 WALL.  232, 278; COOLEY ON TAXATION, 3RD ED., P.
7.  AN INVASION BY MISSOURI OF THE MASSACHUSETTS JURISDICTION TO TAX,
WOULD NOT AFFECT A PRIVATE OR PROPERTY RIGHT, AND THEREFORE COULD NOT
PRESENT A JUSTICIABLE CONTROVERSY.  WHILE THE PROPERTY RIGHT
REQUIREMENT HAS BEEN RELAXED IN WATER RIGHTS CASES SO AS TO PERMIT A
STATE TO SUE AS PARENS PATRIAE, MISSOURI V. ILLINOIS, 180 U.S. 208;
KANSAS V. COLORADO, 185 U.S. 125, SUCH CASES PRESENT NO ANALOGY TO THE
CASE AT BAR. 

MASSACHUSETTS IS NOT THE REAL PARTY IN INTEREST.  OKLAHOMA V.
ATCHISON, T. & S.F. RY. CO., 220 U.S. 277; WISCONSIN V. PELICAN INS.
CO., 127 U.S. 265, 287; NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288
U.S. 249, 259; OKLAHOMA V. GULF, C. & S.F. RY. CO., 220 U.S. 290; NEW
HAMPSHIRE V. LOUISIANA, 108 U.S. 76; KANSAS V. UNITED STATES, 204 U.S.
331; FLORIDA V. ANDERSON, 91 U.S. 667; LOUISIANA V. TEXAS, 176 U.S. 1;
NORTH DAKOTA V. MINNESOTA, 263 U.S. 365.    IF THERE IS A SEPARATE
CONTROVERSY BETWEEN A STATE AND CITIZENS OF ANOTHER STATE, NECESSARY
PARTIES ARE ABSENT, WHOSE JOINDER WOULD OUST THE JURISDICTION. 
CALIFORNIA V. SOUTHERN PACIFIC CO., 157 U.S. 228; ARIZONA V.
CALIFORNIA, 298 U.S. 558.  SEE ALSO DISSENTS IN SOUTH DAKOTA V. NORTH
CAROLINA, 192 U.S. 286, 322, AND PENNSYLVANIA V. WEST VIRGINIA, 262
U.S. 553, 605.  THE BENEFICIARIES UNDER THE TRUST ARE THE ONLY PERSONS
REALLY INTERESTED IN THE ISSUE FRAMED BY MASSACHUSETTS.  CF. TEXAS V.
INTERSTATE COMMERCE COMM'N, 258 U.S. 158, 163; MINNESOTA V. NORTHERN
SECURITIES CO., 184 U.S. 199, 246.    THE ALLEGATIONS AFFORD NO
ADEQUATE BASIS FOR RELIEF ACCORDING TO ACCEPTED DOCTRINES OF EQUITY
JURISPRUDENCE.  TEXAS V. FLORIDA, 306 U.S. 398.  MASSACHUSETTS WAS
FACED WITH NO POSSIBLE RISK OF LOSS FROM ANYTHING THAT MISSOURI MIGHT
DO. 

EVEN IF THE COURT HAS JURISDICTION IT MAY DECLINE TO EXERCISE IT.
COURTS NEED NOT IN EVERY CASE EXERCISE A JURISDICTION WHICH THEY
ADMITTEDLY POSSESS.  THE STATEMENT IN COHENS V. VIRGINIA, 6 WHEAT. 
264, REPEATED IN EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 58; HYDE V.
STONE, 20 HOW.  170; CHICOT COUNTY V. SHERWOOD, 148 U.S. 529; AND
MCCLELLAN V. CARLAND, 217 U.S. 268, THAT A COURT CAN NOT DECLINE TO
EXERCISE ITS JURISDICTION, IS SUBJECT TO EXCEPTIONS.  CANADA MALTING
CO. V. PATERSON STEAMSHIPS, 285 U.S. 413; ROGERS V. GUARANTY TRUST CO.,
288 U.S. 123; PENNSYLVANIA V. WILLIAMS, 294 U.S. 176.  CF., DOUGLAS V.
NEW YORK, N.H., & H.R. CO., 279 U.S. 377. 

THE CONSTITUTIONAL PROVISION CONFERRING JURISDICTION IN CONTROVERSIES
BETWEEN STATES, AND BETWEEN STATES AND CITIZENS OF OTHER STATES, IS NOT
MANDATORY.  IF THE LANGUAGE OF THE FIRST JUDICIARY ACT CAN PROPERLY BE
USED AS A CONTEMPORANEOUS INTERPRETATION OF THE CONSTITUTIONAL
PROVISIONS, AMES V. KANSAS, 111 U.S. 449, IT WOULD SEEM THAT "ALL"
CONTROVERSIES WHERE A STATE IS A PARTY, THE LANGUAGE OF THE STATUTE,
WOULD HAVE REQUIRED THE READING OF THE WORD "ALL" INTO THE
CONSTITUTIONAL PROVISION OF CLAUSE 1 DEALING WITH CONTROVERSIES BETWEEN
STATES, ESPECIALLY SINCE CLAUSE 2 APPARENTLY DISTRIBUTES TO THE SUPREME
COURT JURISDICTION IN "ALL" CASES IN WHICH A STATE IS A PARTY. 
HOWEVER, THE COURT HAS DECLINED TO ACCEPT THAT INTERPRETATION, HAS SAID
THAT THE OMISSION IN CLAUSE 1 OF THE WORD "ALL" WAS APPARENTLY
DELIBERATE, AND INTENDED TO BE A CONTRAST BETWEEN THE CLASSES OF CASES
IN CLAUSE 1 WHICH ARE PRECEDED BY THE WORD "ALL," AND THUS THAT THE
JUDICIAL POWER DOES NOT EXTEND TO ALL CONTROVERSIES TO WHICH THE UNITED
STATES IS A PARTY, OR TO ALL CONTROVERSIES BETWEEN A STATE AND CITIZENS
OF ANOTHER STATE, BUT RATHER ONLY TO CERTAIN TYPES OF THOSE
CONTROVERSIES.  WILLIAMS V. UNITED STATES, 289 U.S. 553; OKLAHOMA V.
GULF, C. & S.F. RY. CO., 220 U.S. 290.  AND IT HAS READ INTO THE
CONSTITUTIONAL LANGUAGE CERTAIN CASES NOT EVEN MENTIONED.  THE COURT
HAS APPROVED MR. JUSTICE IREDELL'S DISSENT IN CHISHOLM V. GEORGIA, AND
HAS DECLARED THAT THE DOCTRINE OF THE IMPLIED IMMUNITY OF A SOVEREIGN
FROM SUIT MUST BE READ INTO THE CONSTITUTIONAL LANGUAGE, AND THAT ITS
LITERAL CONSTRUCTION IS INADMISSIBLE.  WILLIAMS V. UNITED STATES,
SUPRA; HANS V. LOUISIANA, 134 U.S. 1.  THE COURT HAS ALSO READ INTO THE
CONSTITUTIONAL PROVISION A PROHIBITION AGAINST SUITS BY A FOREIGN STATE
AGAINST A STATE.  PRINCIPALITY OF MONACO V. MISSISSIPPI, 292 U.S. 313,
322; OKLAHOMA V. GULF, C. & S.F. RY. CO., 200 U.S. 290.  IN FACT, IN
WILLIAMS V. UNITED STATES, SUPRA, THE COURT SAID THAT THE PHRASE
"CONTROVERSIES TO WHICH THE UNITED STATES SHALL BE A PARTY" IN ARTICLE
III, SEC. 2, CLAUSE 1, WHICH IT PLACED UPON PRECISELY THE SAME FOOTING
AS THE CLAUSE "CONTROVERSIES BETWEEN TWO OR MORE STATES," MUST BE
CONSTRUED IN ACCORDANCE WITH THE PRACTICAL CONSTRUCTION PUT UPON IT BY
THE FIRST JUDICIARY ACT, AS THOUGH IT READ, "CONTROVERSIES TO WHICH THE
UNITED STATES SHALL BE A PARTY PLAINTIFF OR PETITIONER."  289 U.S.
577.  THE SAME PRINCIPLE HAS BEEN GIVEN AN EVEN BROADER APPLICATION. 
WISCONSIN V. PELICAN INS. CO., 127 U.S. 265, 289; MISSOURI V. ILLINOIS,
180 U.S. 208. 

IT IS INTERESTING TO NOTE THAT THE COURT HAS GRAFTED A FURTHER
EXCEPTION UPON THE EXCEPTION THAT SUITS WHICH WERE NOT JUSTICIABLE
PRIOR TO THE CONSTITUTION WERE NOT MADE JUSTICIABLE BY THE
CONSTITUTION.  HANS V. LOUISIANA, SUPRA.  IT IS ALSO INTERESTING TO
OBSERVE THAT THE INTERPRETATION OF THE CONSTITUTION AND THE JUDICIARY
ACT AS DIFFERENTIATING, ALTHOUGH THE LANGUAGE ITSELF SUGGESTS NO SUCH
DIFFERENTIATION, BETWEEN SUITS BY A STATE OR THE UNITED STATES, AND
SUITS AGAINST A STATE OR THE UNITED STATES, WAS ARRIVED AT EVEN
ALTHOUGH IN THE VERY LANGUAGE OF THE JUDICIARY ACT, AN EXPRESS
DISTINCTION IS MADE BETWEEN SUITS BY AMBASSADORS AND OTHER FOREIGN
REPRESENTATIVES, AND SUITS AGAINST THEM. 

IF THE LANGUAGE OF THE CONSTITUTION AND THE JUDICIARY ACT WERE TAKEN
LITERALLY IN CONNECTION WITH CONTROVERSIES BETWEEN, FOR EXAMPLE, A
STATE AND CITIZENS OF OTHER STATES, IT WOULD APPEAR TO AUTHORIZE THE
SUPREME COURT TO TAKE JURISDICTION IN EVERY CASE WHERE A STATE AND
CITIZENS OF OTHER STATES ARE ADVERSARY PARTIES.  THE COURT HAS,
HOWEVER, INTERPRETED THIS LANGUAGE SO THAT THE GRANT OF POWER IS ONLY
CONSIDERED AS EXTENDING TO JUSTICIABLE CASES OR CONTROVERSIES, OF A
CIVIL NATURE, IN WHICH A STATE AS PLAINTIFF OR PETITIONER SUES ONLY
CITIZENS OF OTHER STATES.  THUS IF THE COURT CAN READ INTO THE LANGUAGE
OF THE CONSTITUTION CERTAIN EXCEPTIONS WHICH ARE PERHAPS NOT DIRECTLY
SUGGESTED BY ITS TERMS, BUT WHICH ARE DERIVED FROM POSTULATES BEYOND
THE CONFINES OF THE CONSTITUTION, IT WOULD APPEAR TO BE AT LIBERTY TO
DECLINE TO EXERCISE JURISDICTION IN THIS CASE, ON GROUNDS EQUALLY
COMPELLING, AND ON POSTULATES EQUALLY BEYOND THE CONFINES OF THE
CONSTITUTIONAL AND STATUTORY LANGUAGE.  CF., THE DISSENTING OPINION OF
MR. CHIEF JUSTICE FULLER IN UNITED STATES V. TEXAS, 143 U.S. 621, 648. 

THE COURT SHOULD DECLINE TO EXERCISE JURISDICTION IN THIS CASE.  THIS
PROCEEDING IS NOT OF THE KIND FOR WHICH THE ORIGINAL JURISDICTION OF
THIS COURT WAS DESIGNED.  THERE ARE OTHER ENTIRELY ADEQUATE REMEDIES
AVAILABLE TO THE INTERESTED PARTIES.  THERE ARE OTHER REMEDIES IN OTHER
COURTS WHICH ARE ENTIRELY ADEQUATE TO DISPOSE OF ANY POSSIBLE
DIFFERENCES BETWEEN THE PARTIES INTERESTED IN THIS CASE.  MASSACHUSETTS
SHOULD BE ABLE TO BRING A SUIT AGAINST THE TRUSTEES FOR THE COLLECTION
OF ITS TAXES, IN EITHER A MISSOURI STATE COURT OR IN A FEDERAL DISTRICT
COURT IN MISSOURI, AND SUCH A SUIT WOULD BE OF A CIVIL NATURE AND WOULD
PRESENT A JUSTICIABLE CASE OR CONTROVERSY.  THERE IS NO QUESTION ABOUT
THE REMEDIES AVAILABLE FOR A TESTING OF THE VALIDITY OF THE MISSOURI
TAX.  THE TRUSTEES COULD SUE TO ENJOIN THE COLLECTION OF THE MISSOURI
TAX ON THE GROUND THAT IT IS UNCONSTITUTIONAL AS APPLIED TO THEM, EX
PARTE YOUNG, 209 U.S. 123; OR COULD BRING AN ACTION UNDER THE MISSOURI
DECLARATORY JUDGMENT ACT, LAWS OF MISSOURI 1935, PP. 218-220.  AND THE
MISSOURI INHERITANCE TAX LAWS, SEC. 598, R.S. MO., 1929, PERMIT PERSONS
INTERESTED IN THEIR LIABILITY FOR AN INHERITANCE TAX TO BRING SUIT
AGAINST THE STATE TO QUIET TITLE, TO WHICH SUIT THE STATE EXPRESSLY
CONSENTS. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE COMMONWEALTH OF MASSACHUSETTS ASKS LEAVE TO FILE A BILL OF
COMPLAINT AGAINST THE STATE OF MISSOURI AND CERTAIN CITIZENS OF THAT
STATE.  ON RETURN TO THE ORDER TO SHOW CAUSE WHY LEAVE SHOULD NOT BE
GRANTED, THE RESPONDENTS, WHILE CONTESTING THE CLAIMS OF MASSACHUSETTS,
STATED THAT THEY HAD NO CAUSE TO SHOW.  THE COURT SET THE MOTION FOR
HEARING UPON THE QUESTION WHETHER THE COURT HAS JURISDICTION TO
ENTERTAIN THE SUIT.  THE COMPLAINANT AND THE INDIVIDUAL RESPONDENTS
CONTEND THAT THE COURT HAS JURISDICTION AND THE STATE OF MISSOURI NOW
PRESENTS THE CONTRARY VIEW. 

THE ARGUMENT FOR JURISDICTION RESTS UPON TWO GROUNDS, (1) THAT THERE
IS A CONTROVERSY BETWEEN TWO STATES, AND (2) THAT THERE IS A
CONTROVERSY BETWEEN A STATE AND CITIZENS OF ANOTHER STATE. 
CONSTITUTION, ARTICLE III, SEC. 2, PARAGRAPHS 1 AND 2. 

THE PROPOSED BILL OF COMPLAINT ALLEGES IN SUBSTANCE THAT MADGE BARNEY
BLAKE, DOMICILED IN MASSACHUSETTS, DIED IN 1935 LEAVING AN ESTATE IN
THAT STATE OF $12,646.02, WHICH HAS THERE BEEN ADMINISTERED, AND THAT
THIS ESTATE WILL BE EXHAUSTED BY COSTS OF ADMINISTRATION AND FEDERAL
TAXES; THAT THE DECEDENT, WHILE DOMICILED IN MASSACHUSETTS, CREATED
THREE TRUSTS OF SECURITIES OF THE VALUE (AT THE TIME OF DEATH) OF
$1,850,789.77, THE TRUSTEES BEING RESIDENTS OF MISSOURI WHERE THE
SECURITIES ARE HELD; THAT IN TWO OF THESE TRUSTS, EMBRACING THE GREATER
PART OF THE SECURITIES, THE SETTLOR HAD RESERVED THE RIGHT OF
REVOCATION; THAT BOTH MASSACHUSETTS AND MISSOURI HAVE INHERITANCE TAX
STATUTES SUBJECTING TO TAXATION PROPERTY PASSING BY DEED, GRANT OR GIFT
MADE OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AFTER THE
DEATH OF THE DONOR; THAT THE MASSACHUSETTS STATUTE IMPOSES THE TAX UPON
INTANGIBLES ONLY WHEN OWNED BY INHABITANTS OF THAT STATE; THAT THE
MISSOURI STATUTE EXEMPTS FROM THE TAX INTANGIBLES OWNED BY NON
RESIDENTS WHO RESIDE IN STATES EXTENDING RECIPROCAL PROVISIONS TO
RESIDENTS OF MISSOURI; THAT IN THIS INSTANCE BOTH STATES ARE CLAIMING
THE EXCLUSIVE RIGHT TO IMPOSE INHERITANCE TAXES UPON THE TRUST ESTATES;
THAT MISSOURI INTENDS TO EXERCISE ITS JURISDICTION OVER THE TRUSTEES
AND THE PROPERTY TO THE EXCLUSION OF MASSACHUSETTS; THAT MASSACHUSETTS
HAS TAKEN THE ACTION REQUIRED BY ITS STATUTES TO DETERMINE THE AMOUNT
OF THE TAX, AND TO CERTIFY IT TO THE PERSONS BY WHOM IT IS PAYABLE, AND
THAT THERE IS NOW DUE TO MASSACHUSETTS FROM THE RESPONDENT TRUSTEES
$137,000, IF ALL THE TRUST ESTATES ARE TAXABLE, AND $127,000 IF ONLY
THE PROPERTY UNDER THE TWO REVOCABLE TRUSTS IS TAXABLE; AND THAT THE
TAX CANNOT BE COLLECTED FROM ANY PERSONS OR PROPERTY IN MASSACHUSETTS. 

ALLEGING THE ABSENCE OF ADEQUATE REMEDY SAVE IN THIS COURT SITTING AS
A COURT IN EQUITY, THE COMPLAINANT PRAYS THAT THE COURT MAY ADJUDGE
WHETHER MASSACHUSETTS OR MISSOURI HAS "THE JURISDICTION AND LAWFUL
RIGHT TO IMPOSE TRANSFER, SUCCESSION OR INHERITANCE TAXES" IN RESPECT
OF THE SEVERAL TRANSFERS DESCRIBED AND TO DETERMINE THAT QUESTION IN
FAVOR OF MASSACHUSETTS.  THERE IS ALSO A GENERAL PRAYER FOR OTHER
RELIEF BY INJUNCTION OR OTHERWISE AS THE COURT MAY DEEM EXPEDIENT. 

FIRST. - THE PROPOSED BILL OF COMPLAINT DOES NOT PRESENT A
JUSTICIABLE CONTROVERSY BETWEEN THE STATES.  TO CONSTITUTE SUCH A
CONTROVERSY, IT MUST APPEAR THAT THE COMPLAINING STATE HAS SUFFERED A
WRONG THROUGH THE ACTION OF THE OTHER STATE, FURNISHING GROUND FOR
JUDICIAL REDRESS, OR IS ASSERTING A RIGHT AGAINST THE OTHER STATE WHICH
IS SUSCEPTIBLE OF JUDICIAL ENFORCEMENT ACCORDING TO THE ACCEPTED
PRINCIPLES OF THE COMMON LAW OR EQUITY SYSTEMS OF JURISPRUDENCE. 
FLORIDA V. MELLON, 273 U.S. 12, 16, 17; TEXAS V. FLORIDA, 306 U.S. 398,
405.  MISSOURI, IN CLAIMING A RIGHT TO RECOVER TAXES FROM THE
RESPONDENT TRUSTEES, OR IN TAKING PROCEEDINGS FOR COLLECTION, IS NOT
INJURING MASSACHUSETTS.  BY THE ALLEGATIONS, THE PROPERTY HELD IN
MISSOURI IS AMPLY SUFFICIENT TO ANSWER THE CLAIMS OF BOTH STATES AND
RECOVERY BY EITHER DOES NOT IMPAIR THE EXERCISE OF ANY RIGHT THE OTHER
MAY HAVE.  IT IS NOT SHOWN THAT THERE IS DANGER OF THE DEPLETION OF A
FUND OR ESTATE AT THE EXPENSE OF THE COMPLAINANT'S INTEREST.  IT IS NOT
SHOWN THAT THE TAX CLAIMS OF THE TWO STATES ARE MUTUALLY EXCLUSIVE.  ON
THE CONTRARY, THE VALIDITY OF EACH CLAIM IS WHOLLY INDEPENDENT OF THAT
OF THE OTHER AND, IN THE LIGHT OF OUR RECENT DECISIONS, MAY
CONSTITUTIONALLY BE PRESSED BY EACH STATE WITHOUT CONFLICT IN POINT OF
FACT OR LAW WITH THE DECISION OF THE OTHER.  CURRY V. MCCANLESS, 307
U.S. 357; GRAVES V. ELLIOTT, 307 U.S. 383.  THE QUESTION IS THUS A
DIFFERENT ONE FROM THAT PRESENTED IN TEXAS V. FLORIDA, SUPRA, WHERE THE
CONTROLLING CONSIDERATION WAS THAT BY THE LAW OF THE SEVERAL STATES
CONCERNED ONLY A SINGLE TAX COULD BE LAID BY A SINGLE STATE, THAT OF
THE DOMICILE.  THIS WAS SUFFICIENT BASIS FOR INVOKING THE EQUITY
JURISDICTION OF THE COURT, WHERE IT ALSO APPEARED THAT THERE WAS DANGER
THAT THROUGH SUCCESSFUL PROSECUTION OF THE CLAIMS OF THE SEVERAL STATES
IN INDEPENDENT SUITS ENOUGH OF THE ESTATE WOULD BE ABSORBED TO DEPRIVE
SOME STATE OF ITS LAWFUL TAX.  TEXAS V. FLORIDA, SUPRA, 405, 406, 408,
410. 

MASSACHUSETTS URGES THAT A CONTROVERSY HAS ARISEN OVER THE
ENFORCEMENT OF THE RECIPROCAL PROVISIONS OF THE TAX STATUTES OF THE TWO
STATES.  IT IS SAID THAT MISSOURI HAS ENACTED RECIPROCAL LEGISLATION
UNDER WHICH THERE IS EXEMPTED FROM TAXATION THE TRANSFER OF INTANGIBLES
WHERE THE TRANSFEROR AT THE TIME OF DEATH WAS A RESIDENT OF A STATE
WHICH AT THAT TIME DID NOT IMPOSE A TRANSFER OR DEATH TAX IN RESPECT OF
THE INTANGIBLE PROPERTY OF RESIDENTS OF OTHER STATES OR IF THE LAWS OF
THE STATE OF RESIDENCE CONTAINED A RECIPROCAL EXEMPTION PROVISION
(MISSOURI REV. STAT. 1929, C. 1, ART. 21, SEC. 576); AND THAT
MASSACHUSETTS SINCE 1927(ST. 1927, C. 156) HAS GRANTED COMPLETE
EXEMPTION FROM THE INHERITANCE TAX TO INTANGIBLE PROPERTY NOT BELONGING
TO ITS INHABITANTS.  MASS. GENERAL LAWS (TER.  ED.)  C. 65, SEC. 1. 
THE ARGUMENT IS THAT MASSACHUSETTS AND ITS RESIDENTS ARE ENTITLED TO
THE IMMUNITY OFFERED BY THE MISSOURI STATUTE. 

BUT, APART FROM THE FACT THAT THERE IS NO AGREEMENT OR COMPACT
BETWEEN THE STATES HAVING CONSTITUTIONAL SANCTION (CONST.  ART.  1,
SEC. 10, PAR. 3), THE ENACTMENT BY MISSOURI OF THE SO-CALLED RECIPROCAL
LEGISLATION CANNOT BE REGARDED AS CONFERRING UPON MASSACHUSETTS ANY
CONTRACTUAL RIGHT.  EACH STATE HAS ENACTED ITS LEGISLATION ACCORDING TO
ITS CONCEPTION OF ITS OWN INTERESTS.  EACH STATE HAS THE UNFETTERED
RIGHT AT ANY TIME TO REPEAL ITS LEGISLATION.  EACH STATE IS COMPETENT
TO CONSTRUE AND APPLY ITS LEGISLATION IN THE CASES THAT ARISE WITHIN
ITS JURISDICTION.  IF IT BE ASSUMED THAT THE STATUTES OF THE TWO STATES
HAVE BEEN ENACTED WITH A VIEW TO RECIPROCITY IN OPERATION, NOTHING IS
SHOWN WHICH CAN BE TAKEN TO ALTER THEIR ESSENTIAL CHARACTER AS MERE
LEGISLATION AND TO CREATE AN OBLIGATION WHICH EITHER STATE IS ENTITLED
TO ENFORCE AS AGAINST THE OTHER IN A COURT OF JUSTICE.    THE
SUGGESTION THAT RESIDENTS OF MASSACHUSETTS ARE ENTITLED TO THE IMMUNITY
OFFERED BY THE MISSOURI STATUTE IS UNAVAILING, AS MASSACHUSETTS MAY NOT
INVOKE OUR JURISDICTION FOR THE BENEFIT OF SUCH INDIVIDUALS.  OKLAHOMA
V. ATCHISON, T. & S.F. RY. CO., 220 U.S. 277, 286; OKLAHOMA V. COOK,
304 U.S. 387, 394. 

NOR DOES THE NATURE OF THE SUIT AS ONE TO OBTAIN A DECLARATORY
JUDGMENT AID THE COMPLAINANT.  TO SUPPORT JURISDICTION TO GIVE SUCH
RELIEF, THERE MUST STILL BE A CONTROVERSY IN THE CONSTITUTIONAL SENSE
(AETNA LIFE INSURANCE CO. V. HAWORTH, 300 U.S. 227, 240, 241) AND AS
BETWEEN THE TWO STATES THERE IS NO SUCH CONTROVERSY HERE. 

SECOND. - COMPLAINANT URGES THAT JURISDICTION MAY BE SUSTAINED IN THE
VIEW THAT THE PROPOSED BILL OF COMPLAINT PRESENTS A CONTROVERSY BETWEEN
MASSACHUSETTS AND CITIZENS OF MISSOURI.  THE BILL IS NOT APTLY FRAMED
SO AS TO PRESENT SUCH A CONTROVERSY INDEPENDENTLY OF A CONTROVERSY
BETWEEN THE STATES.  THE BILL EXPRESSLY STATES THE ISSUES PRESENTED AS
BEING (A) WHETHER MASSACHUSETTS OR MISSOURI HAS EXCLUSIVE JURISDICTION
OVER THE TRANSFERS IN TRUST SO AS TO HAVE THE TAXING POWER, AND (B)
SECONDARILY, WHETHER THE STATE HAVING SUCH JURISDICTION CAN
CONSTITUTIONALLY REACH ONE OF THE TRUSTS IN WHICH THE SETTLOR RESERVED
NO RIGHT OF REVOCATION.  AND THE SPECIFIC RELIEF SOUGHT IS THAT THE
COURT MAY DETERMINE WHICH STATE HAS THE JURISDICTION TO TAX AND MAY
AWARD THAT JURISDICTION TO MASSACHUSETTS AS AGAINST MISSOURI.  IF THE
GRAVAMEN OF THE PROPOSED BILL IS DEEMED TO BE AN ASSERTION OF A
CONTROVERSY BETWEEN THE STATES, JURISDICTION TO ENTERTAIN THE BILL
CANNOT BE SUPPORTED IN THE ABSENCE OF THE SHOWING OF SUCH A
CONTROVERSY.  MISSOURI CANNOT BE BROUGHT INTO COURT BY THE EXPEDIENT OF
MAKING ITS CITIZENS PARTIES TO A SUIT OTHERWISE NOT MAINTAINABLE
AGAINST THE STATE. 

WITH RESPECT TO THE SECOND GROUND OF INVOKING JURISDICTION, AS AN
INDEPENDENT GROUND, WE ARE VIRTUALLY ASKED TO DISREGARD THE STATED
OBJECTIVE OF THE PROPOSED BILL, TO TREAT IT AS AMENDED SO AS TO EXPUNGE
CLAIMS AGAINST MISSOURI AND TO CONFINE IT TO CLAIMS AGAINST THE
TRUSTEES; TO CONSIDER THE BILL AS NO LONGER ASKING A DECLARATORY
JUDGMENT AS TO WHICH STATE HAS POWER TO TAX, AS NOT SEEKING RELIEF IN
THIS COURT "SITTING AS A COURT OF EQUITY," BUT, IN THE LIGHT OF THE
GENERAL PRAYER FOR OTHER RELIEF, AS PRESENTING A SIMPLE ACTION AGAINST
THE TRUSTEES TO RECOVER THE AMOUNT OF THE TAX CLAIMED TO BE DUE
MASSACHUSETTS IRRESPECTIVE OF ANY CLAIM OF MISSOURI. 

IF IT BE POSSIBLE TO CONSIDER THE PROPOSED BILL AS THUS STRIPPED OF
ITS ABORTIVE ALLEGATIONS AGAINST MISSOURI AND AS PRESENTING A CAUSE OF
ACTION SO DISTINCT FROM THAT PRIMARILY RELIED UPON, STILL THE
INVOCATION OF OUR JURISDICTION MUST FAIL.  IN THE EXERCISE OF OUR
ORIGINAL JURISDICTION SO AS TRULY TO FULFILL THE CONSTITUTIONAL PURPOSE
WE NOT ONLY MUST LOOK TO THE NATURE OF THE INTEREST OF THE COMPLAINING
STATE - THE ESSENTIAL QUALITY OF THE RIGHT ASSERTED - BUT WE MUST ALSO
INQUIRE WHETHER RECOURSE TO THAT JURISDICTION IN AN ACTION BY A STATE
MERELY TO RECOVER MONEY ALLEGED TO BE DUE FROM CITIZENS OF OTHER STATES
IS NECESSARY FOR THE STATE'S PROTECTION.  IN OKLAHOMA V. COOK, SUPRA,
WE CALLED ATTENTION TO THE ENORMOUS BURDEN WHICH WOULD BE IMPOSED UPON
THIS COURT IF BY TAKING TITLE TO ASSETS OF INSOLVENT STATE
INSTITUTIONS, INCLUDING CLAIMS AGAINST CITIZENS OF OTHER STATES, A
STATE COULD DEMAND ACCESS TO THE ORIGINAL JURISDICTION OF THIS COURT TO
ENFORCE SUCH CLAIMS.  TO OPEN THIS COURT TO ACTIONS BY STATES TO
RECOVER TAXES CLAIMED TO BE PAYABLE BY CITIZENS OF OTHER STATES, IN THE
ABSENCE OF FACTS SHOWING THE NECESSITY FOR SUCH INTERVENTION, WOULD BE
TO ASSUME A BURDEN WHICH THE GRANT OF ORIGINAL JURISDICTION CANNOT BE
REGARDED AS COMPELLING THIS COURT TO ASSUME AND WHICH MIGHT SERIOUSLY
INTERFERE WITH THE DISCHARGE BY THIS COURT OF ITS DUTY IN DECIDING THE
CASES AND CONTROVERSIES APPROPRIATELY BROUGHT BEFORE IT.  WE HAVE
OBSERVED THAT THE BROAD STATEMENT THAT A COURT HAVING JURISDICTION MUST
EXERCISE IT (SEE COHENS V. VIRGINIA, 6 WHEAT.  264, 404) IS NOT
UNIVERSALLY TRUE BUT HAS BEEN QUALIFIED IN CERTAIN CASES WHERE THE
FEDERAL COURTS MAY, IN THEIR DISCRETION, PROPERLY WITHHOLD THE EXERCISE
OF THE JURISDICTION CONFERRED UPON THEM WHERE THERE IS NO WANT OF
ANOTHER SUITABLE FORUM.  CANADA MALTING CO. V. PATERSON CO., 285 U.S.
413, 422; ROGERS V. GUARANTY TRUST CO., 288 U.S. 123, 130, 131. 
GROUNDS FOR JUSTIFYING SUCH A QUALIFICATION HAVE BEEN FOUND IN
"CONSIDERATIONS OF CONVENIENCE, EFFICIENCY AND JUSTICE" APPLICABLE TO
PARTICULAR CLASSES OF CASES.  ROGERS V. GUARANTY TRUST CO., SUPRA.
REASONS NOT LESS COGENT POINT TO THE NEED OF THE EXERCISE OF A SOUND
DISCRETION IN ORDER TO PROTECT THIS COURT FROM AN ABUSE OF THE
OPPORTUNITY TO RESORT TO ITS ORIGINAL JURISDICTION IN THE ENFORCEMENT
BY STATES OF CLAIMS AGAINST CITIZENS OF OTHER STATES. 

IN THIS INSTANCE IT DOES NOT APPEAR THAT MASSACHUSETTS IS WITHOUT A
PROPER AND ADEQUATE REMEDY.  CLAUSE 2 OF SEC. 2 OF ARTICLE III MERELY
DISTRIBUTES THE JURISDICTION CONFERRED BY CLAUSE ONE.  LOUISIANA V.
TEXAS, 176 U.S. 1, 16; MONACO V. MISSISSIPPI, 292 U.S. 313, 321.  THE
ORIGINAL JURISDICTION OF THIS COURT, IN CASES WHERE A STATE IS A PARTY,
"REFERS TO THOSE CASES IN WHICH, ACCORDING TO THE GRANT OF POWER MADE
IN THE PRECEDING CLAUSE, JURISDICTION MIGHT BE EXERCISED IN CONSEQUENCE
OF THE CHARACTER OF THE PARTY, AND AN ORIGINAL SUIT MIGHT BE INSTITUTED
IN ANY OF THE FEDERAL COURTS; NOT TO THOSE CASES IN WHICH AN ORIGINAL
SUIT MIGHT NOT BE INSTITUTED IN A FEDERAL COURT."  COHENS V. VIRGINIA,
SUPRA, PP. 398, 399.  WITH RESPECT TO THE CHARACTER OF THE CLAIM NOW
URGED, WE ARE NOT ADVISED THAT MISSOURI WOULD CLOSE ITS COURTS TO A
CIVIL ACTION BROUGHT BY MASSACHUSETTS TO RECOVER THE TAX ALLEGED TO BE
DUE FROM THE TRUSTEES.  THE ATTORNEY GENERAL OF MISSOURI AT THIS BAR
ASSERTS THE CONTRARY.  HE SAYS THAT "IT WOULD SEEM THAT MASSACHUSETTS
SHOULD BE ABLE TO BRING A SUIT AGAINST THE TRUSTEES FOR THE COLLECTION
OF ITS TAXES IN EITHER A MISSOURI STATE COURT OR IN A FEDERAL DISTRICT
COURT IN MISSOURI" AND THAT "SUCH A SUIT WOULD BE OF A CIVIL NATURE AND
WOULD PRESENT A JUSTICIABLE CASE OR CONTROVERSY."  WE HAVE SAID THAT
THE OBJECTION THAT THE COURTS IN ONE STATE WILL NOT ENTERTAIN A SUIT TO
RECOVER TAXES DUE TO ANOTHER OR UPON A JUDGMENT FOR SUCH TAXES, IS NOT
RIGHTLY ADDRESSED TO ANY WANT OF JUDICIAL POWER IN COURTS WHICH ARE
AUTHORIZED TO ENTERTAIN CIVIL SUITS AT LAW.  IT GOES "NOT TO THE
JURISDICTION BUT TO THE MERITS," AND RAISES A QUESTION WHICH DISTRICT
COURTS ARE COMPETENT TO DECIDE.  MILWAUKEE COUNTY V. M.E. WHITE CO.,
296 U.S. 268, 272. 

THE MOTION FOR LEAVE TO FILE THE PROPOSED BILL OF COMPLAINT IS
DENIED.  MOTION DENIED. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :










PITTMAN V. HOME OWNER'S CORP., 308 U.S. 21 


NO. 10.  ARGUED OCTOBER 12, 13, 1939.  - DECIDED NOVEMBER 6, 1939.  -
175 MD. 512 - 2 A.2D 689, AFFIRMED. 


1.  THE MARYLAND TAX ON MORTGAGES, GRADED ACCORDING TO THE AMOUNT OF
THE LOAN SECURED AND IMPOSED IN ADDITION TO THE ORDINARY REGISTRATION
FEE AS A CONDITION TO THE RECORDATION OF THE INSTRUMENT, CAN NOT BE
APPLIED TO A MORTGAGE TENDERED FOR RECORD BY THE HOME OWNERS' LOAN
CORPORATION AND SECURING ONE OF ITS LOANS, IN VIEW OF THE PROVISIONS OF
THE HOME OWNERS' LOAN ACT WHICH DECLARE THE CORPORATION TO BE AN
INSTRUMENTALITY OF THE UNITED STATES AND THAT ITS LOANS SHALL BE EXEMPT
FROM ALL STATE AND MUNICIPAL TAXES.  FEDERAL LAND BANK V. CROSLAND, 261
U.S. 374.  P. 29. 

2.  ASSUMING THAT THE CREATION OF THE HOME OWNERS' LOAN CORPORATION
WAS A CONSTITUTIONAL EXERCISE OF THE POWER OF CONGRESS, THE ACTIVITIES
OF THE CORPORATION THROUGH WHICH THE GOVERNMENT LAWFULLY ACTS MUST BE
REGARDED AS GOVERNMENTAL FUNCTIONS AND ENTITLED TO WHATEVER IMMUNITY
ATTACHES TO THOSE FUNCTIONS WHEN PERFORMED BY THE GOVERNMENT ITSELF
THROUGH ITS DEPARTMENTS.  P. 32. 

THE POWER OF CONGRESS TO CREATE A CORPORATION TO FACILITATE THE
PERFORMANCE OF GOVERNMENTAL FUNCTIONS IMPLIES A POWER TO PROTECT THE
OPERATIONS THUS VALIDLY AUTHORIZED, WHICH COMES WITHIN THE RANGE OF THE
EXPRESS POWER CONFERRED BY CONST. ART. I, SEC. 8, CL. 18, TO MAKE ALL
LAWS NECESSARY AND PROPER FOR CARRYING INTO EXECUTION ALL POWERS VESTED
BY THE CONSTITUTION IN THE GOVERNMENT.  IN THE EXERCISE OF THIS POWER
TO PROTECT, CONGRESS HAS THE DOMINANT AUTHORITY WHICH NECESSARILY
INHERES IN ITS ACTION WITHIN THE NATIONAL FIELD. 

PITTMAN, CLERK OF THE SUPERIOR COURT OF BALTIMORE, V. HOME OWNERS'
LOAN CORP. 

CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. 

CERTIORARI, 306 U.S. 628, TO REVIEW A JUDGMENT AFFIRMING THE ISSUANCE
OF A MANDAMUS BY BALTIMORE CITY COURT REQUIRING THE CLERK OF THE
SUPERIOR COURT OF BALTIMORE TO RECORD A MORTGAGE. 

THE TAX IS UNIFORM AND DOES NOT DISCRIMINATE AGAINST THE CORPORATION
OR THE UNITED STATES. 

THE TAX IS NOT A BURDEN ON THE CORPORATION SINCE IT COULD BE, AND
CUSTOMARILY IS, PAID BY THE MORTGAGOR. 

IF THE TAX IS PAID BY THE MORTGAGOR, THE EFFECT ON THE CORPORATION OF
COLLECTING THE TAX FROM THE MORTGAGOR, AND THE SLIGHT INCREASE IN THE
COST OF ITS OPERATIONS WHICH THIS MIGHT ENTAIL, ARE SO SPECULATIVE,
REMOTE AND UNCERTAIN AS TO CONSTITUTE NO BURDEN AT ALL IN THE
CONSTITUTIONAL SENSE.  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 436; UNION
PACIFIC RAILROAD V. PENISTON, 18 WALL.  5, 30; METCALF & EDDY V.
MITCHELL, 269 U.S. 514, 523-524; WILLCUTS V. BUNN, 282 U.S. 216, 225;
EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, 391-392; FOX FILM CORP.
V. DOYAL, 286 U.S. 123, 128; INDIAN TERRITORY ILLUMINATING OIL CO. V.
BOARD OF EQUALIZATION, 288 U.S. 325, 327-328; SCHUYLKILL TRUST CO. V.
PENNSYLVANIA, 296 U.S. 113, 127; UNITED STATES V. CALIFORNIA, 297 U.S.
175.  IN ALL OF THESE CASES THE COURT HAS AVOIDED AN EXTENSION OF
IMMUNITY FROM TAX FOR FEAR OF CRIPPLING THE TAXING POWER OF EITHER THE
STATES OR THE FEDERAL GOVERNMENT. 

THE IMMUNITY EXISTS ONLY TO THE EXTENT NECESSARY TO PREVENT UNDUE
INTERFERENCE WITH THE OPERATIONS OF THE FEDERAL GOVERNMENT.  THE TAX
MUST HAVE A DIRECT AND IMMEDIATE EFFECT UPON THE OPERATIONS OF THE
GOVERNMENTAL INSTRUMENTALITY; IT MUST RESTRICT, RETARD, IMPEDE OR
OBSTRUCT ITS ACTIVITIES. 

WE RELY UPON JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134; SILAS
MASON CO. V. STATE TAX COMMISSION, 302 U.S. 186; ATKINSON V. STATE TAX
COMMISSION, 303 U.S. 20; HELVERING V. MOUNTAIN PRODUCERS CORP., 303
U.S. 376; HELVERING V. GERHARDT, 304 U.S. 405; ALLEN V. REGENTS OF
UNIVERSITY SYSTEM OF GEORGIA, 304 U.S. 439; AND GRAVES V. NEW YORK EX
REL. O'KEEFE, 306 U.S. 466.  FROM A READING OF THESE CASES IT IS CLEAR
THAT THE PRESENT TENDENCY IS TO SCRUTINIZE ANY CLAIM TO IMMUNITY AND
ALLOW IT ONLY WHEN IT IS ABUNDANTLY CLEAR THAT, OTHERWISE, AN
UNREASONABLE BURDEN WOULD BE IMPOSED ON A GOVERNMENTAL AGENCY.  THIS IS
PARTICULARLY TRUE WHERE IMMUNITY WOULD RESULT IN A BENEFIT TO A PRIVATE
PERSON, BUT WHERE THE BURDEN, IF ANY, ON THE GOVERNMENTAL AGENCY IS
REMOTE AND SPECULATIVE. 

THE ACTIVITIES OF THIS CORPORATION ARE SUCH THAT THIS NON
DISCRIMINATORY TAX, LAID UPON IT AS WELL AS UPON PRIVATE AGENCIES
OPERATING IN THE MONEY LENDING FIELD, WOULD NOT RETARD, IMPEDE OR
OBSTRUCT THE OPERATIONS OF THE CORPORATION.  SOUTH CAROLINA V. UNITED
STATES, 199 U.S. 437; ALLEN V. REGENTS OF UNIVERSITY SYSTEM OF GEORGIA,
304 U.S. 439. 

THE DISTINCTION DRAWN, IN THE CASE OF STATE AGENCIES, BETWEEN THOSE
EXERCISING PROPRIETARY FUNCTIONS AND THOSE EXERCISING GOVERNMENTAL
FUNCTIONS SEEMS TO COME TO NO MORE THAN THIS:  IN THE ONE CASE IT IS
NOT NECESSARY TO INQUIRE WHETHER A PARTICULAR FEDERAL TAX IS OR IS NOT
A BURDEN, FOR THERE IS NO IMPLIED CONSTITUTIONAL IMMUNITY.  ON THE
OTHER HAND, IF A STATE AGENCY IS EXERCISING A GOVERNMENTAL FUNCTION,
THERE IS IMMUNITY FROM A TAX WHICH IS FOUND UPON INQUIRY TO IMPOSE A
DIRECT AND PALPABLE BURDEN.  THE ONLY DIFFERENCE TO BE NOTED IN DEALING
WITH FEDERAL AGENCIES IS THAT THE COURT DOES NOT CONSIDER THAT ANY OF
THEM MAY NOT BE GOVERNMENTAL AND HENCE IT IS NECESSARY IN EACH CASE TO
INQUIRE WHETHER OR NOT THE STATE TAX IN FACT DOES IMPOSE A DIRECT AND
PALPABLE BURDEN UPON THE FEDERAL AGENCY. 

EVEN THOUGH THE HOME OWNERS' LOAN CORPORATION IS A GOVERNMENTAL
AGENCY, IT IS STILL NECESSARY TO DETERMINE WHETHER OR NOT THE
CHALLENGED TAX IMPOSES A DIRECT AND PALPABLE BURDEN UPON THE FEDERAL
AGENCY, SO AS TO RETARD, OBSTRUCT OR IMPEDE IT IN THE PERFORMANCE OF
THE FUNCTIONS DELEGATED TO IT BY CONGRESS.  THE NATURE OF THOSE
FUNCTIONS MUST BE EXAMINED, AND THE BENEFIT TO BE DERIVED FROM IMMUNITY
WEIGHED AGAINST THE DETRIMENT TO THE STATE, WHICH IS COOPERATING WITH
THE FEDERAL GOVERNMENT IN THE ATTAINMENT OF COMMON GOVERNMENTAL ENDS. 

WE CAN NOT CLOSE OUR EYES TO THE FACT THAT THE FEDERAL GOVERNMENT IS
DAILY BROADENING THE SPHERE OF ITS ACTIVITIES.  IT IS CONSTANTLY
SETTING UP AGENCIES WHICH COMPETE WITH PRIVATE AGENCIES ENGAGING IN
SIMILAR ACTIVITIES.  CARRIED FAR ENOUGH, AN IMMUNITY FROM TAX WOULD
DEPRIVE THE STATES OF THEIR SOURCES OF REVENUES.  THIS IS NOT NECESSARY
FOR THE PROTECTION OF THE FEDERAL GOVERNMENT IN THE PERFORMANCE OF THE
FUNCTIONS DELEGATED TO IT BY THE CONSTITUTION. 

THE HOME OWNERS' LOAN ACT OF 1933 DOES NOT PURPORT TO CONFER UPON THE
CORPORATION AN IMMUNITY FROM THE MARYLAND TAX. 

IF CONSTRUED TO CONFER THAT IMMUNITY IT IS, TO THAT EXTENT,
UNCONSTITUTIONAL AND VOID.  CONGRESS HAS NO POWER TO CONFER UPON
AGENCIES OF THE FEDERAL GOVERNMENT AN IMMUNITY FROM STATE TAXATION
WHICH IS BROADER AND MORE EXTENSIVE THAN THE IMPLIED CONSTITUTIONAL
IMMUNITY.  GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S. 466. 

ASSUMING THAT CONGRESS HAS THE POWER TO AUTHORIZE THE CREATION OF THE
HOME OWNERS' LOAN CORPORATION TO ASSIST NEEDY HOME OWNERS BY
REFINANCING MORTGAGES ON THEIR HOMES, IT IS, WE SUBMIT, CLEAR THAT AN
IMMUNITY FROM THE MARYLAND RECORDATION TAX IS NOT NECESSARY OR NEEDFUL
TO PROTECT THE AGENCY IN THE PERFORMANCE OF THAT FUNCTION.  IF AN
IMMUNITY FROM TAXATION IS NECESSARY TO PROTECT A FEDERAL AGENCY IN THE
PERFORMANCE OF A GOVERNMENTAL FUNCTION DEVOLVED UPON IT BY ACT OF
CONGRESS, THEN ANY TAX WHICH INTERFERES WITH THE PERFORMANCE OF THE
FUNCTION CONSTITUTES A BURDEN UPON THE FEDERAL AGENCY.  IF SO, THERE IS
AN IMPLIED CONSTITUTIONAL IMMUNITY FROM THE TAX.  ON THE OTHER HAND, IF
THE TAX DOES NOT SO INTERFERE, THEN IT CONSTITUTES NO BURDEN ON THE
AGENCY AND THERE IS NO IMPLIED CONSTITUTIONAL IMMUNITY FROM THE TAX. 
BUT IN THIS EVENT THERE WOULD BE NO NECESSITY FOR AN IMMUNITY TO
PROTECT THE FEDERAL AGENCY IN THE PERFORMANCE OF ITS GOVERNMENTAL
FUNCTIONS, AND IT WOULD THEREFORE NOT BE NECESSARY FOR CONGRESS TO
GRANT SUCH AN IMMUNITY IN ORDER TO ENABLE THE FEDERAL AGENCY TO CARRY
ON ITS ACTIVITIES.  IF THERE IS NO SUCH NECESSITY, THEN CLEARLY THE
POWER TO GRANT IMMUNITY FROM TAX COULD NOT BE DERIVED FROM THE IMPLIED
POWER OF CONGRESS "TO DO WHATEVER IS NEEDFUL OR APPROPRIATE TO CARRY
OUT THE POWERS DELEGATED TO IT BY THE FEDERAL CONSTITUTION." 

THE IDEA THAT THE CONGRESS HAS SOME POWER, THE LIMITS OF WHICH ARE
NOT DEFINED, TO GRANT AN IMMUNITY FROM A TAX BROADER THAN THE IMPLIED
CONSTITUTIONAL IMMUNITY, IS WITHOUT FOUNDATION.  IN OTHER WORDS, IF WE
CONCEDE THE POWER OF CONGRESS TO GRANT TO A GOVERNMENTAL AGENCY
WHATEVER TAX IMMUNITY IS NECESSARY TO PROTECT AND SAFEGUARD THAT AGENCY
IN THE PERFORMANCE OF THE GOVERNMENTAL FUNCTIONS DELEGATED TO IT BY
CONGRESS, WE MERELY CONCEDE THE IMPLIED CONSTITUTIONAL IMMUNITY FROM
SUBSTANTIAL INTERFERENCE.  IF WE GO BEYOND THIS, THEN WE MUST SAY THAT
THE CONGRESS HAS THE POWER TO GRANT NOT MERELY AN IMMUNITY NECESSARY TO
PROTECT THE AGENCY IN THE PERFORMANCE OF ITS GOVERNMENTAL FUNCTIONS,
BUT AN UNLIMITED IMMUNITY.  SUCH A RULE WOULD HAVE DISASTROUS
CONSEQUENCES. 

A STATUTORY DECLARATION OF IMMUNITY MAY THEREFORE BE TREATED AS AN
EXPRESSION OF CONGRESSIONAL OPINION AS TO THE NECESSITY FOR IMMUNITY,
OR AS NEGATIVING ANY IMPLICATION OF A WAIVER OF THE IMMUNITY BY
CONGRESS, OR BOTH.  BUT BEYOND THIS POINT WE SUBMIT THAT THE QUESTION
OF WHETHER IMMUNITY EXISTS IN ANY PARTICULAR CASE DEPENDS UPON WHETHER
IT CAN BE IMPLIED FROM THE CONSTITUTION, AND IN EVERY CASE THIS IS A
JUDICIAL AND NOT A LEGISLATIVE QUESTION. 

PETITIONER DOES NOT CHALLENGE THE CONSTITUTIONALITY OF THE HOME
OWNERS' LOAN ACT OF 1933, AS AMENDED.  IT FOLLOWS THAT THE CORPORATION
SHARES THE FULL IMMUNITY FROM STATE TAXATION WHICH ATTACHES TO THE
OPERATIONS OF THE UNITED STATES.  ITS FUNCTIONS ARE NECESSARILY
"GOVERNMENTAL," SINCE THEY ARE IN EXERCISE OF THE DELEGATED POWERS OF
THE FEDERAL GOVERNMENT.  SINCE IT IS WHOLLY OWNED AND CONTROLLED BY THE
GOVERNMENT, ITS CORPORATE ORGANIZATION DOES NOT AFFECT THE GOVERNMENTAL
NATURE OF ITS ACTIVITIES.  GRAVES V. NEW YORK EX REL. O'KEEFE, 306 U.S.
466, 477. 

CONGRESS HAS FULL POWER TO DETERMINE WHETHER THE RECORDATION OF THESE
MORTGAGES SHOULD BE EXEMPT FROM OR SUBJECT TO STATE TAXATION; AND THE
QUESTION OF TAX IMMUNITY OR LIABILITY IS SIMPLY ONE OF CONGRESSIONAL
INTENT.  HELVERING V. GERHARDT, 304 U.S. 405, 411-412.  SUCH WAS THE
DECISION IN FEDERAL LAND BANK V. CROSLAND, 261 U.S. 374. 

THE LAWS OF THE UNITED STATES ARE DECLARED BY THE CONSTITUTION TO BE
"THE SUPREME LAW OF THE LAND."  IF CONGRESS HAD EXPRESSLY DECLARED THAT
THE RECORDATION OF THESE MORTGAGES SHOULD BE EXEMPT FROM STATE TAXATION
THE MARYLAND TAX WOULD FALL, SINCE THE PROVISION COULD NOT BE DECLARED
TO HAVE NO REASONABLE RELATIONSHIP TO THE ENDS PROMOTED BY THE
CORPORATION. 

THE DOCTRINE OF IMMUNITY OF FEDERAL INSTRUMENTALITIES FROM STATE
TAXATION WAS DEVELOPED SIMPLY AS AN ATTRIBUTE OF THE SUPREMACY CLAUSE
OF THE CONSTITUTION.  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 426, 427,
433.  NOT UNTIL COLLECTOR V. DAY, 11 WALL.  113, DID THE COURT ASCRIBE
IMMUNITY TO THE MORE NEBULOUS IMPLICATIONS OF A FEDERATED
CONSTITUTION.  BUT EVEN AFTER THAT DECISION, AND NOTABLY OF LATE, THE
COURT HAS CONTINUED TO RECOGNIZE THE HISTORIC AND SPECIFIC BASIS FOR
FEDERAL TAX IMMUNITY.  THUS, CONGRESS HAS AN UNDOUBTED POWER TO WAIVE
THE IMMUNITY FROM STATE TAXATION WHICH WOULD OTHERWISE ATTACH.  IN
OTHER CASES, THE COURT HAS RECOGNIZED THE POWER OF CONGRESS TO CREATE
AN IMMUNITY FOR PRIVATE PERSONS WHO DEALT WITH THE GOVERNMENT AND HAVE
HELD THE TAXPAYER LIABLE BECAUSE CONGRESS HAD PROVIDED NO SUCH
IMMUNITY; CORRELATIVELY, THE COURT HAS EXTENDED IMMUNITY TO SUCH
PRIVATE PERSONS BECAUSE CONGRESS HAD DECLARED THAT THEY SHOULD NOT BE
SUBJECT TO STATE TAXATION.  WITH THESE BROAD POWERS AS TO THE TAX
IMMUNITY EVEN OF PRIVATE PERSONS, SIMPLY BECAUSE THEY DEAL WITH THE
UNITED STATES, IT FOLLOWS A FORTIORI THAT CONGRESS HAS FULL POWER TO
PROVIDE EITHER TAX IMMUNITY OR LIABILITY FOR THE PROPERTY AND
OPERATIONS OF THE GOVERNMENT ITSELF. 

THE ULTIMATE INCIDENCE OF A TAX CAN NOT ORDINARILY BE DETERMINED WITH
CATEGORICAL EXACTNESS.  IN THE CASE OF THE MARYLAND TAX HERE INVOLVED,
IT IS WHOLLY IMPOSSIBLE TO DETERMINE ON A PRIORI GROUNDS WHETHER THE
ECONOMIC BURDEN WILL ULTIMATELY REST UPON THE CORPORATION OR UPON ITS
BORROWERS.  EVEN IF THE TAX COULD BE PRECISELY ALLOCATED, IT IS
IMPOSSIBLE TO MEASURE THE EXTENT TO WHICH IT IS AN INTERFERENCE WITH
THE GOVERNMENTAL FUNCTIONS OF THE CORPORATION IN PROVIDING CREDIT
RELIEF FOR DISTRESSED HOME OWNERS.  THE DECISION OF THESE QUESTIONS,
IMPOSSIBLE OF EXACT ANSWER, IS COMMITTED TO CONGRESS ALONE. 

THE CONSTITUTION, IN GIVING TO CONGRESS THIS POWER, HAS NOT PLACED
THE STATES IN JEOPARDY.  FROM THE BEGINNING IT HAS BEEN RECOGNIZED THAT
CONGRESS, BY ITS VERY NATURE, REPRESENTED THE INTERESTS OF THE STATES
AS WELL AS THOSE OF THE NATIONAL GOVERNMENT.  MCCULLOCH V. MARYLAND, 4
WHEAT.  316, 435-436; HELVERING V. GERHARDT, 304 U.S. 405, 412-413,
416.  AND IN PRACTICE, CONGRESS HAS MANY TIMES WAIVED AN IMMUNITY WHICH
OTHERWISE WOULD ATTACH TO FEDERAL INSTRUMENTALITIES; INDEED, IN THE
LAST THREE CONGRESSES SOME THIRTY-TWO STATUTES CONTAIN SUCH A WAIVER. 

THE QUESTION, THEREFORE, IS SIMPLY ONE OF CONGRESSIONAL INTENTION. 
NO PRIVATE PERSON SHOULD BE EXEMPT FROM NON-DISCRIMINATORY TAXATION
SIMPLY BECAUSE HE DEALS WITH THE GOVERNMENT; BUT THE GOVERNMENT ITSELF
SHOULD NOT IN THE ABSENCE OF A CLEAR CONSENT BE FORCED TO ACCOUNT TO
THE TAX COLLECTOR OF A STATE.  IT WOULD BE ANOMALOUS FOR THE OPERATIONS
OF THE UNITED STATES, BUTTRESSED BY THE SUPREMACY CLAUSE, TO BE SUBJECT
TO A COMPULSORY EXACTION BY AN INDEPENDENT SOVEREIGN.  THE DELAY AND
ACCOUNTING BURDENS, THE NECESSITY OF OPENING THE GOVERNMENT'S BOOKS TO
NUMEROUS TAX OFFICIALS, AND THE BURDEN OF NUMEROUS AND PROTRACTED
SUITS, WOULD COMBINE TO IMPOSE A STAGGERING OBSTACLE TO THE EFFICIENT
CONDUCT OF THE NATION'S BUSINESS, WHICH REACHES INTO EVERY TAXING
JURISDICTION IN THE UNITED STATES. 

IT IS, WE BELIEVE, BECAUSE OF THESE CONSIDERATIONS THAT SO MARKED A
CONTRAST APPEARS IN THE DECISIONS OF THIS COURT WHICH DEAL, ON THE ONE
HAND, WITH THE TAX IMMUNITY OF PRIVATE PERSONS AND, ON THE OTHER HAND,
WITH THAT OF THE GOVERNMENT ITSELF.  BECAUSE OF THE STRONG REASONS FOR
SUCH AN IMMUNITY AND BECAUSE OF THE UNBROKEN CONSISTENCY OF THE
DECISIONS OF THIS COURT, CONGRESS CAN BE TAKEN TO HAVE INTENDED A
DIFFERENT RULE ONLY WHEN THE WAIVER OF IMMUNITY IS CLEAR.  GRAVES V.
NEW YORK EX REL. O'KEEFE, 306 U.S. 466, DEALT WITH THE IMMUNITY OF A
PRIVATE PERSON FROM TAXATION SIMPLY BECAUSE HE CHANCED TO DEAL WITH THE
GOVERNMENT. 

DESTROY THIS NORMAL IMPLICATION OF IMMUNITY; ON THE CONTRARY ITS
LANGUAGE POINTS WITH COMPELLING FORCE TO A CONGRESSIONAL DESIRE FOR
IMMUNITY.  THE FRAGMENTARY LEGISLATIVE HISTORY POINTS TO A SIMILAR
CONCLUSION.  CF., BALTIMORE NATIONAL BANK V. TAX COMMISSION, 297 U.S.
209.    THE OMISSION OF A SPECIFIC EXEMPTION FOR MORTGAGES, FOUND IN
THE FEDERAL FARM LOAN ACT AND RELIED UPON IN FEDERAL LAND BANK V.
CROSLAND, 261 U.S. 374, INDICATES NO DESIRE TO WAIVE THEIR IMMUNITY. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE HOME OWNERS' LOAN CORPORATION BROUGHT THIS PROCEEDING IN THE
BALTIMORE CITY COURT FOR A WRIT OF MANDAMUS REQUIRING THE CLERK OF THE
SUPERIOR COURT OF BALTIMORE TO RECORD A MORTGAGE EXECUTED TO THE
CORPORATION UPON THE PAYMENT OF THE ORDINARY RECORDING CHARGE AND
WITHOUT AFFIXING STAMPS FOR THE STATE RECORDING TAX.  DEMURRER TO THE
PETITION WAS OVERRULED, THE CLERK DID NOT AVAIL HIMSELF OF THE
OPPORTUNITY TO ANSWER, AND MANDAMUS WAS GRANTED.  THE ORDER WAS
AFFIRMED BY THE COURT OF APPEALS.  175 MD. 512; 2 A.2D 689.  WE GRANTED
CERTIORARI.  306 U.S. 628. 

THE MARYLAND STATUTE IMPOSES A TAX UPON EVERY MORTGAGE, RECORDED OR
OFFERED FOR RECORD, AT THE RATE OF TEN CENTS FOR EACH $100, OR FRACTION
THEREOF, OF THE PRINCIPAL AMOUNT OF THE DEBT SECURED BY THE MORTGAGE. 
FN1  AS THE HOME OWNERS' LOAN CORPORATION IS EXPRESSLY DECLARED TO BE
AN INSTRUMENTALITY OF THE UNITED STATES (HOME OWNERS' LOAN ACT OF 1933,
C. 64, 48 STAT. 128) AND THE MORTGAGE WAS ACQUIRED IN THAT CAPACITY,
THE COURT OF APPEALS HELD THE TAX AS THUS APPLIED TO BE INVALID. 

THE COURT RELIED UPON OUR DECISION IN FEDERAL LAND BANK V. CROSLAND,
261 U.S. 374.  THE QUESTION THERE RELATED TO A TAX IMPOSED BY ALABAMA
AS A CONDITION FOR THE RECORDING OF A MORTGAGE EXECUTED TO A FEDERAL
LAND BANK.  THE FEDERAL FARM LOAN ACT OF 1916 PROVIDES THAT FIRST
MORTGAGES EXECUTED TO FEDERAL LAND BANKS SHALL BE DEEMED
"INSTRUMENTALITIES OF THE GOVERNMENT OF THE UNITED STATES, AND AS SUCH
THEY AND THE INCOME DERIVED THEREFROM SHALL BE EXEMPT FROM FEDERAL,
STATE, MUNICIPAL, AND LOCAL TAXATION."  39 STAT. 360, 380.  WE HELD
THAT THE STATE TAX, AS DISTINGUISHED FROM A REASONABLE FEE TO MEET THE
EXPENSES OF THE REGISTRY, CONSTITUTED A GENERAL TAX ON MORTGAGES, USING
THE CONDITION ATTACHED TO REGISTRATION AS A PRACTICAL MODE OF
COLLECTING IT, AND THAT THE TAX ON THE MORTGAGE IN QUESTION WAS BEYOND
THE POWER OF THE STATE. 

PETITIONER SUGGESTS THAT THE CROSLAND CASE MAY BE DISTINGUISHED; THAT
THE ALABAMA TAX WAS IMPOSED ON THE LENDER, WHEREAS THE MARYLAND TAX IS
ON THE PRIVILEGE OF RECORDING THE INSTRUMENT AND THE STATUTE IS SILENT
AS TO THE ONE WHO SHALL PAY THE TAX; ALSO THAT THE FEDERAL FARM LOAN
ACT EXPRESSLY DECLARED THE MORTGAGES OF FEDERAL LAND BANKS TO BE
INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT.  THE COURT OF APPEALS
THOUGHT THESE DIFFERENCES TO BE IMMATERIAL.  AS TO THE FIRST, THE COURT
RIGHTLY OBSERVED THAT IN THE CROSLAND CASE THE PROVISION FOR THE
PAYMENT OF TAX BY THE LENDER WAS REGARDED AS HAVING NO DETERMINING
SIGNIFICANCE.  WE SAID THAT "WHOEVER PAYS IT IT IS A TAX UPON THE
MORTGAGE AND THAT IS WHAT IS FORBIDDEN BY THE LAW OF THE UNITED
STATES."  261 U.S., PP. 378, 379.  HERE, ALSO, THE TAX IS IMPOSED UPON
THE MORTGAGE AND IS GRADED ACCORDING TO THE AMOUNT OF THE LOAN,  FN2
AND THE CONDITION ATTACHED TO THE REGISTRATION IS A PRACTICAL METHOD OF
COLLECTION.  THE RECORDING SOUGHT WAS FOR THE PROTECTION OF THE
INTEREST OF THE HOME OWNERS' LOAN CORPORATION.  IN FACT, THE MORTGAGE
IN THE INSTANT CASE WAS OFFERED FOR RECORD BY THE CORPORATION AND THE
TAX WAS DEMANDED FROM THE CORPORATION. 

THE SECOND SUGGESTED DISTINCTION RESTS UPON THE TERMS OF THE HOME
OWNERS' LOAN ACT.  THAT PROVIDES  FN3  THAT THE HOME OWNERS' LOAN
CORPORATION, ITS FRANCHISE, CAPITAL, RESERVES AND SURPLUS, AND ITS
LOANS AND INCOME SHALL BE EXEMPT FROM ALL STATE OR MUNICIPAL TAXES. 
THE CRITICAL TERM, IN THE PRESENT RELATION, IS "LOANS."  WE THINK THAT
THIS TERM, IN ORDER TO CARRY OUT THE MANIFEST PURPOSE OF THE BROAD
EXEMPTION, SHOULD BE CONSTRUED AS COVERING THE ENTIRE PROCESS OF
LENDING, THE DEBTS WHICH RESULT THEREFROM AND THE MORTGAGES GIVEN TO
THE CORPORATION AS SECURITY.  THE HOME OWNERS' LOAN ACT REQUIRES THAT
THE LOANS MADE BY THE CORPORATION "SHALL BE SECURED BY A DULY RECORDED
HOME MORTGAGE."  FN4  BOTH THE MORTGAGE AND ITS RECORDATION WERE
INDISPENSABLE ELEMENTS IN THE LENDING OPERATIONS AUTHORIZED BY
CONGRESS.  WE AGREE WITH THE STATE COURT THAT THERE IS NO SOUND
DISTINCTION WHICH MAKES INAPPLICABLE THE REASONING WHICH WAS DECISIVE
IN THE CROSLAND CASE. 

ALIVE TO THIS CONSIDERATION, PETITIONER ADVANCES A BROADER
CONTENTION, ASKING US TO REVIEW AND OVERRULE THE CROSLAND DECISION AS
BEING OUT OF HARMONY WITH CORRECT PRINCIPLE.  PETITIONER INSISTS THAT
THE TAX IS NOT DISCRIMINATORY; THAT IT DOES NOT IMPOSE A BURDEN UPON
THE HOME OWNERS' LOAN CORPORATION; AND THAT IF THE ACT OF CONGRESS BE
CONSTRUED AS CONFERRING AN IMMUNITY, IT WENT BEYOND THE POWER OF
CONGRESS, AS CONGRESS CANNOT "GRANT AN IMMUNITY OF GREATER EXTENT THAN
THE CONSTITUTIONAL IMMUNITY." 

WE ASSUME HERE, AS WE ASSUMED IN GRAVES V. NEW YORK EX REL. O'KEEFE,
306 U.S. 466, THAT THE CREATION OF THE HOME OWNERS' LOAN CORPORATION
WAS A CONSTITUTIONAL EXERCISE OF THE CONGRESSIONAL POWER AND THAT THE
ACTIVITIES OF THE CORPORATION THROUGH WHICH THE NATIONAL GOVERNMENT
LAWFULLY ACTS MUST BE REGARDED AS GOVERNMENTAL FUNCTIONS AND AS
ENTITLED TO WHATEVER IMMUNITY ATTACHES TO THOSE FUNCTIONS WHEN
PERFORMED BY THE GOVERNMENT ITSELF THROUGH ITS DEPARTMENTS.  MCCULLOCH
V. MARYLAND, 4 WHEAT.  316, 421, 422; SMITH V. KANSAS CITY TITLE CO.,
255 U.S. 180, 208, 209; GRAVES V. NEW YORK EX REL. O'KEEFE, SUPRA.
CONGRESS HAS NOT ONLY THE POWER TO CREATE A CORPORATION TO FACILITATE
THE PERFORMANCE OF GOVERNMENTAL FUNCTIONS, BUT HAS THE POWER TO PROTECT
THE OPERATIONS THUS VALIDLY AUTHORIZED.  "A POWER TO CREATE IMPLIES A
POWER TO PRESERVE."  MCCULLOCH V. MARYLAND, SUPRA, P. 426.  THIS POWER
TO PRESERVE NECESSARILY COMES WITHIN THE RANGE OF THE EXPRESS POWER
CONFERRED UPON CONGRESS TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND
PROPER FOR CARRYING INTO EXECUTION ALL POWERS VESTED BY THE
CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES.  CONST. ART. I,
SEC. 8, PAR. 18.  IN THE EXERCISE OF THIS POWER TO PROTECT THE LAWFUL
ACTIVITIES OF ITS AGENCIES, CONGRESS HAS THE DOMINANT AUTHORITY WHICH
NECESSARILY INHERES IN ITS ACTION WITHIN THE NATIONAL FIELD.  THE
SHREVEPORT CASE, 234 U.S. 342, 351, 352.  THE EXERCISE OF THIS
PROTECTIVE POWER IN RELATION TO STATE TAXATION HAS MANY ILLUSTRATIONS. 
SEE, E.G., BANK V. SUPERVISORS, 7 WALL.  26, 31; CHOATE V. TRAPP, 224
U.S. 665, 668, 669; SMITH V. KANSAS CITY TITLE CO., SUPRA, P. 207;
TROTTER V. TENNESSEE, 290 U.S. 354, 356; LAWRENCE V. SHAW, 300 U.S.
245, 249.  IN THIS INSTANCE, CONGRESS HAS UNDERTAKEN TO SAFEGUARD THE
OPERATIONS OF THE HOME OWNERS' LOAN CORPORATION BY PROVIDING THE
DESCRIBED IMMUNITY.  AS WE HAVE SAID, WE CONSTRUE THIS PROVISION AS
EMBRACING AND PROHIBITING THE TAX IN QUESTION.  SINCE CONGRESS HAD THE
CONSTITUTIONAL AUTHORITY TO ENACT THIS PROVISION, IT IS BINDING UPON
THIS COURT AS THE SUPREME LAW OF THE LAND.  CONST. ART. VI. 

THE JUDGMENT OF THE STATE COURT IS AFFIRMED. 

FN1  THE ACT PROVIDES FOR A "TAX ON THE RECORDATION OF INSTRUMENTS IN
WRITING" AS FOLLOWS: 

"A TAX IS HEREBY IMPOSED UPON EVERY INSTRUMENT OF WRITING RECORDED OR
OFFERED FOR RECORD WITH THE CLERKS OF THE CIRCUIT COURTS OF THE
RESPECTIVE COUNTIES, OR THE CLERK OF THE SUPERIOR COURT OF BALTIMORE
CITY, ON AND AFTER JUNE 1, 1937, TO AND INCLUDING SEPTEMBER 30TH, 1939,
INCLUDING MECHANICS LIENS, DEEDS, MORTGAGES (EXCEPT PURCHASE MONEY
MORTGAGES), CHATTEL MORTGAGES, BILLS OF SALE, CONDITIONAL CONTRACTS OF
SALE, LEASES, CONFESSED JUDGMENTS, MAGISTRATES' JUDGMENTS, CROP LIENS,
DEEDS OF TRUST, AND ANY AND ALL OTHER INSTRUMENTS OF WRITING, SO
RECORDED OR OFFERED FOR RECORD, WHICH CREATE LIENS OR INCUMBRANCES ON
REAL OR PERSONAL PROPERTY, OR CONVEY TITLE TO REAL OR PERSONAL
PROPERTY; PROVIDED, HOWEVER, THAT SAID TAX SHALL NOT APPLY TO
ASSIGNMENTS OF MORTGAGES, PURCHASE MONEY MORTGAGES, ABSOLUTE OR PARTIAL
RELEASES, OR ORDERS OF SATISFACTION." 

"THE TAX HEREBY IMPOSED SHALL BE AT THE RATE OF 10[ FOR EACH $100, OR
FRACTIONAL PART THEREOF, OF THE ACTUAL CONSIDERATION PAID OR TO BE
PAID, FOR THE PROPERTY TRANSFERRED, IN THE CASE OF INSTRUMENTS
CONVEYING TITLE, AND AT THE RATE OF 10[ FOR EACH $100, OR FRACTIONAL
PART THEREOF, OF THE PRINCIPAL AMOUNT OF THE DEBT SECURED, IN THE CASE
OF INSTRUMENTS SECURING A DEBT, OR RESERVING TITLE AS SECURITY FOR A
DEBT." 

"IN ADDITION TO THE TAX HEREBY IMPOSED, THE CLERKS SHALL COLLECT A
CHARGE OF 50[ FOR EACH SUCH INSTRUMENT RECORDED OR OFFERED FOR
RECORD."  ACTS OF 1937, CHAP. 11, CODE OF MARYLAND, ART. 81, SEC. 213. 

THE SAME ACT, IN SEC. 214, PROVIDES FOR THE AFFIXING OF STAMPS TO
COVER THE TAX AND MAKES IT UNLAWFUL FOR ANY PERSON TO RECORD ANY
WRITTEN INSTRUMENT WITHOUT PROVIDING FOR THE PAYMENT OF THE TAX, AS
STATED. 

FN2  SEE NOTE 1. 

FN3  SECTION 4(C) OF THE HOME OWNERS' LOAN ACT PROVIDES: "THE BONDS
ISSUED BY THE CORPORATION UNDER THIS SUBSECTION SHALL BE EXEMPT, BOTH
AS TO PRINCIPAL AND INTEREST, FROM ALL TAXATION (EXCEPT SURTAXES,
ESTATE, INHERITANCE, AND GIFT TAXES) NOW OR HEREAFTER IMPOSED BY THE
UNITED STATES OR ANY DISTRICT, TERRITORY, DEPENDENCY, OR POSSESSION
THEREOF, OR BY ANY STATE, COUNTY, MUNICIPALITY, OR LOCAL TAXING
AUTHORITY.  THE CORPORATION, INCLUDING ITS FRANCHISE, ITS CAPITAL,
RESERVES AND SURPLUS, AND ITS LOANS AND INCOME, SHALL LIKEWISE BE
EXEMPT FROM SUCH TAXATION; EXCEPT THAT ANY REAL PROPERTY OF THE
CORPORATION SHALL BE SUBJECT TO TAXATION TO THE SAME EXTENT, ACCORDING
TO ITS VALUE, AS OTHER REAL PROPERTY IS TAXED."  48 STAT. 128, 130; 12
U.S.C. 1463. 

FN4  SEC. 4(E)(F); 48 STAT. 131; 12 U.S.C. 1463(E)(F). 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :



















STANDARD BRANDS V. YEAST CORP., 308 U.S. 34 


NO. 9.  ARGUED OCTOBER 12, 1939.  - DECIDED NOVEMBER 6, 1939.  - 101
F.2D 814, AFFIRMED. 


1.  PATENT NO. 1,449,103, TO HAYDUCK, FOR A PROCESS OF PROPAGATING
YEAST IN A NUTRIENT SOLUTION, WITH AERATION, AND NEUTRALIZATION OF
EXCESS OF THE ACIDITY LIBERATED FROM THE COMPONENTS OF THE SOLUTION, IS
INVALID FOR WANT OF INVENTION OVER THE PRIOR ART. P. 36. 

2.  PATENT NO. 1,449,105, TO HAYDUCK, FOR A PROCESS OF PROPAGATING
YEAST WITH A RELATIVELY LOW YIELD OF ALCOHOL BY INITIATING THE
PROPAGATION IN A HIGHLY DILUTED PORTION OF THE WORT, AERATING THAT
PORTION, AND ADDING DURING THE PERIOD OF PROPAGATION THE WORT OF HIGHER
CONCENTRATION AT A RATE SUCH THAT THE CONCENTRATION OF THE DILUTED WORT
REMAINS SUBSTANTIALLY CONSTANT, WHEREBY SUBSTANTIALLY ALL OF THE
ALCOHOL WHICH MAY BE FORMED IS ASSIMILATED, - IS INVALID FOR WANT OF
SUFFICIENT DISCLOSURE.  P. 37. 

3.  PATENT NO. 1,449,106, TO HAYDUCK FOR A COMBINATION OF THE
PROCESSES OF THE ABOVE-MENTIONED TWO PATENTS IS LIKEWISE INVALID - THE
COMBINATION REQUIRES NOTHING BEYOND THE SKILL OF THE ART. P. 38. 

STANDARD BRANDS, INC., V. NATIONAL GRAIN YEAST CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 306 U.S. 627, TO REVIEW A JUDGMENT HOLDING THREE PATENTS
INVALID ON AN APPEAL FROM A DECREE OF THE DISTRICT COURT BY WHICH ONE
OF THEM WAS ADJUDGED VALID AND THE OTHERS NOT, 21 F.SUPP.  46. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE ORDER WHICH GRANTED THIS WRIT LIMITS OUR CONSIDERATION TO THE
VALIDITY OF HAYDUCK PATENTS NOS. 1,449,103, 1,449,105, 1,449,106.  THEY
RELATE TO PROCESSES FOR MANUFACTURING BAKER'S YEAST AND ARE OWNED BY
THE PETITIONER.  IT WILL BE CONVENIENT TO DESIGNATE THEM BY THE LAST
THREE FIGURES OF THEIR OFFICE NUMBERS - 103, 105, 106. 

ALL THREE PATENTS WERE DECLARED INVALID BY THE CIRCUIT COURT OF
APPEALS BELOW, 101 F.2D 814.  IN THE DISTRICT COURT FOR NEW JERSEY, 103
HAD BEEN ADJUDGED VALID; 105 AND 106 INVALID, 21 F.SUPP.  46. 

THE DISTRICT COURT FOR MARYLAND IN TWO CAUSES, (SOPER, J.), HELD THE
PATENTS VALID, FLEISCHMAN YEAST CO. V. FEDERAL YEAST CORP., 8 F.2D 186,
STANDARD BRANDS, INC. V. FEDERAL YEAST CORP., 38 F.2D 329.  THE CIRCUIT
COURT OF APPEALS, FOURTH CIRCUIT, AFFIRMED THE JUDGMENT SUSTAINING 103,
FEDERAL YEAST CORP. V. FLEISCHMANN CO., 13 F.2D 570.  THE PARTIES
ARRIVED AT A SETTLEMENT AND NO APPEAL WAS TAKEN FROM THE SECOND
JUDGMENT. 

MUCH HAS BEEN WRITTEN RELATIVE TO THESE PATENTS IN THE CAREFULLY
PREPARED OPINIONS REFERRED TO ABOVE.  THEY ADEQUATELY REVEAL THE FACTS
AND POINTS OF LAW INCIDENT TO THE PROLONGED DISPUTATION. 
IRRECONCILABLE VIEWS HAVE BEEN APPROVED AND WE MUST NOW DECIDE WHICH IS
TO BE PREFERRED. 

"YEAST IS A SMALL CELLULAR MICRO-ORGANISM.  IN ITS ORDINARY
SIGNIFICANCE, IT IS A CONGLOMERATE MASS OF INFINITESIMALLY SMALL
CELLS.  IT MULTIPLIES BY SELF PROPAGATION, LIMITED BY THE MEANS OF
SUBSISTENCE, AND THE QUALITY AND YIELD ARE GREATLY AFFECTED BY THE
CONDITIONS UNDER WHICH PROPAGATION IS CARRIED ON.  YEAST HAS BEEN
MANUFACTURED FOR AT LEAST 50 YEARS BY INOCULATING A WORT; THAT IS, BY
PREPARING A CLEAR LIQUID SOLUTION AND STOCKING IT WITH A SMALL AMOUNT
OF SEED YEAST.  SUCH WORTS INCLUDE SUBSTANCES TO NOURISH THE YEAST
CELLS, AND ARE CALLED YEAST NUTRIENT SOLUTIONS.  ...  THE FIELD FOR
INVESTIGATION AND IMPROVEMENT HAS BEEN THE COMPOSITION OF THE NUTRIENT
SOLUTION, AND THE CHARACTER OF THE PROCESS EMPLOYED DURING THE PERIOD
OF GROWTH." 

NUTRIENT SOLUTIONS OFTEN CONTAIN INORGANIC SALTS WHICH ARE BROKEN
DOWN THROUGH THE GROWTH OF THE SEED YEAST.  COMMONLY, THIS BRINGS ABOUT
MARKED ACIDITY.  GROWTH PROGRESSES BEST IN A SLIGHTLY ACID WORT; OVER
ACIDITY RETARDS OR DESTROYS IT; AERATION OF THE WORT ACCELERATES
GROWTH. 

THE AMOUNT OF ALCOHOL CONSEQUENT UPON THE GROWTH OF YEAST CELLS HAS
DIRECT RELATION TO THE CONCENTRATION OF THE WORT.  WHEN INTENSIFIED THE
YIELD OF ALCOHOL INCREASES; WHEN LOWERED THERE IS LESS. 

GENERALLY:  PATENT 103 PROPOSES TO NEUTRALIZE ANY DELETERIOUS ACIDITY
IN A WORT WHICH CONTAINS INORGANIC SALT BY ADDING AN ANTACID MATERIAL;
PATENT 105 REQUIRES THE ADDITION OF NUTRIENTS DURING THE GROWTH OF THE
YEAST "AT A RATE SUCH THAT THE YEAST MAY PROPAGATE AND SUBSTANTIALLY
ALL OF THE ALCOHOL WHICH MAY BE FORMED IS ASSIMILATED BY THE YEAST";
PATENT 106 COMBINES THE NEUTRALIZATION IDEA OF 103 WITH THE RATE OF
FEED PROPOSED BY 105. 

CLAIM NO. 1 OF PATENT 103, TYPICAL OF ALL, FOLLOWS - 

"THE PROCESS OF MANUFACTURING YEAST WHICH COMPRISES PREPARING A YEAST
NUTRIENT SOLUTION AND PROPAGATING YEAST THEREIN WITH AERATION, SAID
YEAST NUTRIENT SOLUTION CONTAINING ESSENTIALLY SUGAR MATERIAL AND YEAST
NOURISHING INORGANIC SALTS FROM WHICH COMPONENTS ARE LIBERATED WHICH
TEND INCREASINGLY TO ACIDIFY THE NUTRIENT SOLUTION DURING PROPAGATION,
AND DURING THE PERIOD OF PROPAGATION NEUTRALIZING THE DELETERIOUS
EXCESS OF SUCH ACIDITY." 

IN RESPECT OF THIS PETITIONER'S COUNSEL MAINTAIN - 

"IT COVERS, RATHER, THE INTEGRAL COORDINATION OF PROPAGATING YEAST
WITH AERATION IN A PREPARED SOLUTION CONTAINING ESSENTIALLY SUGAR
MATERIAL AND YEAST NOURISHING INORGANIC SALTS FROM WHICH RESULTS AN
INCREASING ACIDIFICATION TENDING TO BECOME DELETERIOUS, AND
NEUTRALIZING THE DELETERIOUS EXCESS OF SUCH ACIDITY IN THE SOLUTION
WHILE THE YEAST PROPAGATION IS BEING CONDUCTED." 

THE CIRCUIT COURT OF APPEALS BELOW DECLARED - 

"WE THINK THAT IT CANNOT BE DENIED THAT THE USE OF ANTACID OR BASIC
MATERIALS AS NEUTRALIZERS FOR ACIDITY IN RESPECT TO YEAST IS OLD IN THE
ART. ...  WE THINK THAT HAYDUCK HAS SIMPLY SET FORTH A TECHNIQUE WHICH
IS USEFUL IN THE MANUFACTURE OF YEAST UNDER MODERN METHODS.  HAYDUCK'S
DISCLOSURES DO NOT ATTAIN TO THE DIGNITY OF INVENTION.  HIS PROCESS IS
THE RESULT OF THE EXERCISE OF THE SKILL OF THE CALLING, THE APPLICATION
OF AN OLD PRINCIPLE TO A SIMILAR OR ANALOGOUS SUBJECT WITH NO CHANGE IN
THE MANNER OF APPLICATION AND WITHOUT ANY SUBSTANTIALLY DIFFERENT
RESULT." 

AND IT ACCORDINGLY HELD PATENT 103 INVALID FOR WANT OF INVENTION OVER
THE PRIOR ART. 

CONSIDERING ALL THE CIRCUMSTANCES AND NOTWITHSTANDING THE VERY
FORCEFUL ARGUMENTS TO THE CONTRARY, WE THINK THIS MUST BE ACCEPTED AS
THE BETTER VIEW. 

CLAIM NO. 10, TYPICAL OF PATENT 105, FOLLOWS - 

"A PROCESS OF PROPAGATING YEAST WITH A RELATIVELY LOW YIELD OF
ALCOHOL WHICH COMPRISES, PREPARING A WORT CONTAINING ALL ESSENTIAL
YEAST NUTRIENTS IN SOLUTION, INITIATING PROPAGATION OF YEAST IN A
HIGHLY DILUTED PORTION OF SAID WORT, AERATING THE DILUTED PORTION, AND
SUBSTANTIALLY CONTINUOUSLY ADDING DURING THE PERIOD OF PROPAGATION, THE
WORT OF HIGHER CONCENTRATION AT A RATE SUCH THAT THE CONCENTRATION OF
THE DILUTE WORT REMAINS SUBSTANTIALLY CONSTANT, WHEREBY SUBSTANTIALLY
ALL OF THE ALCOHOL WHICH MAY BE FORMED IS ASSIMILATED." 

OF THIS PATENT COUNSEL FOR PETITIONER SAY - 

IT "IS DIRECTED PARTICULARLY TO THIS PROCEDURAL OR MANIPULATIVE,
RATHER THAN CHEMICAL, ASPECT OF THE OPERATION; I.E., A DIVISION OF THE
WORT INTO TWO PARTS WITH PROPAGATION BEGUN IN A DILUTED FRACTION AND
THE GRADUAL FEEDING IN OF THE CONCENTRATED RESERVE AS STATED.  BY
ADOPTING THIS PERFECTED PROCESS, THE YIELD OF YEAST WAS STILL FURTHER
INCREASED AND THERE WERE ALSO OTHER ACCOMPANYING ADVANTAGES IN
SHORTENED TIME FROM COMMENCEMENT OF THE YEAST PROPAGATION TO THE
HARVESTING OF THE YEAST CROP AND IN ENHANCED QUANTITY OF OUTPUT FROM A
GIVEN SIZED APPARATUS." 

THE CIRCUIT COURT OF APPEALS BELOW DECLARED - 

"IT WAS WELL KNOWN TO THE PRIOR ART THAT IF THE CREATION OF ALCOHOL
WAS NOT DESIRED THE NUTRIENT SOLUTION SHOULD CONTAIN A LOW
CONCENTRATION OF SUGAR.  ...  IN OUR OPINION THE PROCESS DESCRIBED BY
HAYDUCK MAY CONSTITUTE A MECHANICAL IMPROVEMENT OVER THE PRIOR ART BUT
IT IS NO MORE THAN THIS.  BUT EVEN IF THE PROCESS DISCLOSED BY HAYDUCK
BE HELD TO CONSTITUTE INVENTION, THE PATENT IS INVALID FOR
INDEFINITENESS AS WAS HELD BY THE LEARNED DISTRICT JUDGE.  BOTH THE
TIMES AND MANNER IN WHICH THE CONCENTRATED NUTRIENT SOLUTION IS TO BE
ADDED MAY BE ASCERTAINED AS WE HAVE STATED SOLELY BY EXPERIMENTATION. 
THE DISCLOSURE OF THE PATENT IS THEREFORE TOO VAGUE AND INDEFINITE TO
CONSTITUTE INVENTION." 

WITH THIS CONCLUSION WE AGREE. 

AS TO PATENT 106 COUNSEL HAVE STIPULATED - 

"THE PROCESS OF THIS PATENT IS ONE COMBINING THE PROCESS OF PATENT
'103, INCLUDING NEUTRALIZATION, AND THE PROCESS OF PATENT '105,
INCLUDING REGULATED NUTRIENT FEED." 

SINCE PATENT NO. 103 IS INVALID FOR LACK OF INVENTION AND NO. 105
INVALID BECAUSE THE DISCLOSURE IS TOO VAGUE AND INDEFINITE, A CLAIM FOR
PATENT BASED UPON THE MERE UNION OF THE TWO PROCESSES DESCRIBED THEREIN
CANNOT BE SUSTAINED WHERE, AS HERE, THE PROPOSED COMBINATION REQUIRES
NOTHING BEYOND THE SKILL OF THE ART. 

THE CHALLENGED DECREE MUST BE AFFIRMED. 

MR. JUSTICE BUTLER AND MR. JUSTICE STONE TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CAUSE. 
..END :
























ESTATE OF SANFORD V. COMM'R, 308 U.S. 39 


NO. 34.  ARGUED OCTOBER 18, 19, 1939.  - DECIDED NOVEMBER 6, 1939.  -
103 F.2D 81, AFFIRMED. 


1.  A GIFT IN TRUST WITH RESERVATION OF POWER IN THE DONOR TO ALTER
THE DISPOSITION OF THE PROPERTY IN ANY WAY NOT BENEFICIAL TO HIMSELF,
IS INCOMPLETE AND DOES NOT BECOME SUBJECT TO GIFT TAX UNDER THE REVENUE
ACT OF 1924, SEC. 319, SO LONG AS THE DONOR RETAINS THAT POWER.  P.
41. 

2.  THE FEDERAL GIFT TAX IS SUPPLEMENTARY TO THE ESTATE TAX; THE TWO
ARE IN PARI MATERIA AND MUST BE CONSTRUED TOGETHER.  P. 42. 

AN IMPORTANT PURPOSE OF THE GIFT TAX WAS TO PREVENT, OR COMPENSATE
FOR, AVOIDANCE OF DEATH TAXES.  P. 44. 

3.  THE GIFT TAX STATUTE DOES NOT CONTEMPLATE TWO TAXES UPON GIFTS
NOT MADE IN CONTEMPLATION OF DEATH, ONE UPON THE GIFT WHEN A TRUST IS
CREATED OR WHEN THE POWER OF REVOCATION, IF ANY, IS RELINQUISHED, AND
ANOTHER ON THE TRANSFER OF THE SAME PROPERTY AT DEATH BECAUSE THE GIFT
PREVIOUSLY MADE WAS INCOMPLETE.  P. 45. 

4.  TRANSFERS IN TRUST, NOT TAXABLE AS GIFTS BECAUSE THE DONOR HAS
RESERVED POWER TO CHANGE THE BENEFICIARIES, BECOME SUBJECT TO DEATH
TAXES WHEN HE DIES.  P. 46. 

5.  ART. I OF TREAS. REG. 67, UNDER THE REVENUE ACT OF 1924, WAS NOT
DIRECTED AT RELINQUISHMENTS OF RESERVED POWER TO SELECT NEW
BENEFICIARIES OTHER THAN THE DONOR AND DID NOT PURPORT TO GOVERN CASES
OF RESERVED POWER DIFFERENT FROM OR IN ADDITION TO THE POWER TO REVEST
THE TITLE IN THE DONOR.  P. 48. 

AT MOST THE REGULATION IS AMBIGUOUS AND NOT PERSUASIVE IN DETERMINING
THE TRUE CONSTRUCTION OF THE STATUTE. 

6.  ART. III, REG. 79, AMENDMENT OF 1936 UNDER THE REVENUE ACT OF
1932, WHICH DECLARES THAT A GIFT IS COMPLETE AND SUBJECT TO TAX WHEN
"THE DONOR HAS SO PARTED WITH DOMINION AND CONTROL AS TO LEAVE IN HIM
NO POWER TO CAUSE THE BENEFICIAL TITLE TO BE REVESTED IN HIMSELF," IS
BY ITS TERMS APPLICABLE ONLY TO GIFTS MADE AFTER JUNE 6, 1932, AND IS
OF SIGNIFICANCE HERE ONLY SO FAR AS IT IS DECLARATORY OF THE CORRECT
CONSTRUCTION OF THE 1924 ACT.  P. 49. 

7.  A STIPULATION PURPORTING TO REVEAL THE ADMINISTRATIVE PRACTICE IN
APPLYING THE GIFT TAX LAW, HELD TOO VAGUE AND INDEFINITE TO AFFORD
BASIS FOR A JUDICIAL CONSTRUCTION OF THE STATUTE.  P. 49. 

8.  A STIPULATION AS TO QUESTIONS OF LAW CAN NOT BIND THE COURT.  P.
51. 

9.  ADMINISTRATIVE PRACTICE MAY BE PERSUASIVE IN DETERMINING THE
CONSTRUCTION OF A STATUTE OF DOUBTFUL MEANING WHERE THE PRACTICE DOES
NOT CONFLICT WITH OTHER PROVISIONS OF THE STATUTE AND IS NOT SO
INCONSISTENT WITH DECISIONS OF THE COURTS AS TO PRODUCE INCONSISTENCY
AND CONFUSION IN THE ADMINISTRATION OF THE LAW.  P. 52. 

BUT THE COURT DOES NOT GIVE EFFECT TO AN UNPUBLISHED ADMINISTRATIVE
CONSTRUCTION ON WHICH TAXPAYERS HAVE NOT RELIED, WHICH CONFLICTS WITH
ITS OWN DECISIONS AND WITH A LATER ADMINISTRATIVE PRACTICE CONFORMING
TO LOWER COURT RULINGS. 

10.  THE REENACTMENT OF THE GIFT TAX STATUTE OF 1924 BY THE REVENUE
ACT OF 1932 WAS NOT A LEGISLATIVE APPROVAL OF AN ADMINISTRATIVE
PRACTICE WHICH HAD NOT BEEN DISCLOSED BY TREASURY REGULATION, RULING OR
DECISION, AND WHICH DOES NOT APPEAR TO HAVE BEEN ESTABLISHED BEFORE THE
ADOPTION OF THE LATER ACT.  P. 53.  . 

ESTATE OF SANFORD V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 307 U.S. 618, TO REVIEW A JUDGMENT WHICH SUSTAINED A
DECISION OF THE BOARD OF TAX APPEALS AFFIRMING A DEFICIENCY ASSESSMENT
BASED ON THE GIFT TAX PROVISION OF THE REVENUE ACT OF 1924. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS AND ITS COMPANION CASE, RASQUIN V. HUMPHREYS, POST, P. 54,
PRESENT THE SINGLE QUESTION OF STATUTORY CONSTRUCTION WHETHER IN THE
CASE OF AN INTER VIVOS TRANSFER OF PROPERTY IN TRUST, BY A DONOR
RESERVING TO HIMSELF THE POWER TO DESIGNATE NEW BENEFICIARIES OTHER
THAN HIMSELF, THE GIFT BECOMES COMPLETE AND SUBJECT TO THE GIFT TAX
IMPOSED BY THE FEDERAL REVENUE LAWS AT THE TIME OF THE RELINQUISHMENT
OF THE POWER.  CORELATIVE QUESTIONS, IMPORTANT ONLY IF A NEGATIVE
ANSWER IS GIVEN TO THE FIRST ONE, ARE WHETHER THE GIFT BECOMES COMPLETE
AND TAXABLE WHEN THE TRUST IS CREATED OR, IN THE CASE WHERE THE DONOR
HAS RESERVED A POWER OF REVOCATION FOR HIS OWN BENEFIT AND HAS
RELINQUISHED IT BEFORE RELINQUISHING THE POWER TO CHANGE BENEFICIARIES,
WHETHER THE GIFT FIRST BECOMES COMPLETE AND TAXABLE AT THE TIME OF
RELINQUISHING THE POWER OF REVOCATION. 

IN 1913, BEFORE THE ENACTMENT OF THE FIRST GIFT TAX STATUTE OF 1924,
DECEDENT CREATED A TRUST OF PERSONAL PROPERTY FOR THE BENEFIT OF NAMED
BENEFICIARIES, RESERVING TO HIMSELF THE POWER TO TERMINATE THE TRUST IN
WHOLE OR IN PART, OR TO MODIFY IT.  IN 1919 HE SURRENDERED THE POWER TO
REVOKE THE TRUST BY AN APPROPRIATE WRITING IN WHICH HE RESERVED "THE
RIGHT TO MODIFY ANY OR ALL OF THE TRUSTS" BUT PROVIDED THAT THIS RIGHT
"SHALL IN NO WAY BE DEEMED OR CONSTRUED TO INCLUDE ANY RIGHT OR
PRIVILEGE" IN THE DONOR "TO WITHDRAW PRINCIPAL OR INCOME FROM ANY
TRUST."  IN AUGUST, 1924, AFTER THE EFFECTIVE DATE OF THE GIFT TAX
STATUTE, DECEDENT RENOUNCED HIS REMAINING POWER TO MODIFY THE TRUST. 
AFTER HIS DEATH IN 1928, THE COMMISSIONER FOLLOWING THE DECISION IN
HESSLEIN V. HOEY, 91 F.2D 954, IN 1937, RULED THAT THE GIFT BECAME
COMPLETE AND TAXABLE ONLY UPON DECEDENT'S FINAL RENUNCIATION OF HIS
POWER TO MODIFY THE TRUSTS AND GAVE NOTICE OF A TAX DEFICIENCY
ACCORDINGLY. 

THE ORDER OF THE BOARD OF TAX APPEALS SUSTAINING THE TAX WAS AFFIRMED
BY THE COURT OF APPEALS FOR THE THIRD CIRCUIT, 103 F.2D 81, WHICH
FOLLOWED THE DECISION OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN
HESSLEIN V. HOEY, SUPRA, IN WHICH WE HAD DENIED CERTIORARI, 302 U.S.
756.  IN THE HESSLEIN CASE, AS IN THE HUMPHREYS CASE NOW BEFORE US, A
GIFT IN TRUST WITH THE RESERVATION OF A POWER IN THE DONOR TO ALTER THE
DISPOSITION OF THE PROPERTY IN ANY WAY NOT BENEFICIAL TO HIMSELF, WAS
HELD TO BE INCOMPLETE AND NOT SUBJECT TO THE GIFT TAX UNDER THE 1932
ACT SO LONG AS THE DONOR RETAINED THAT POWER. 

WE GRANTED CERTIORARI IN THIS CASE, 307 U.S. 618, AND IN THE
HUMPHREYS CASE, ID. 619, UPON THE REPRESENTATION OF THE GOVERNMENT THAT
IT HAS TAKEN INCONSISTENT POSITIONS WITH RESPECT TO THE QUESTION
INVOLVED IN THE TWO CASES AND THAT BECAUSE OF THIS FACT AND OF THE
DOUBT OF THE CORRECTNESS OF THE DECISION IN THE HESSLEIN CASE DECISION
OF THE QUESTION BY THIS COURT IS DESIRABLE IN ORDER TO REMOVE THE
RESULTANT CONFUSION IN THE ADMINISTRATION OF THE REVENUE LAWS. 

IT HAS CONTINUED TO TAKE THESE INCONSISTENT POSITIONS HERE, STATING
THAT IT IS UNABLE TO DETERMINE WHICH CONSTRUCTION OF THE STATUTE WILL
BE MOST ADVANTAGEOUS TO THE GOVERNMENT IN POINT OF REVENUE COLLECTED. 
IT ARGUES IN THIS CASE THAT THE GIFT DID NOT BECOME COMPLETE AND
TAXABLE UNTIL SURRENDER BY THE DONOR OF HIS RESERVED POWER TO DESIGNATE
NEW BENEFICIARIES OF THE TRUSTS.  IN THE HUMPHREYS CASE IT ARGUES THAT
THE GIFT UPON TRUST WITH POWER RESERVED TO THE DONOR, NOT AFTERWARD
RELINQUISHED, TO CHANGE THE BENEFICIARIES WAS COMPLETE AND TAXABLE WHEN
THE TRUST WAS CREATED.  IT CONCEDES BY ITS BRIEF THAT "A DECISION
FAVORABLE TO THE GOVERNMENT IN EITHER CASE WILL NECESSARILY PRECLUDE A
FAVORABLE DECISION IN THE OTHER." 

IN ASCERTAINING THE CORRECT CONSTRUCTION OF THE STATUTES TAXING
GIFTS, IT IS NECESSARY TO READ THEM IN THE LIGHT OF THE CLOSELY RELATED
PROVISIONS OF THE REVENUE LAWS TAXING TRANSFERS AT DEATH, AS THEY HAVE
BEEN INTERPRETED BY OUR DECISIONS.  SECTION 319 ET SEQ. OF THE REVENUE
ACT OF 1924, 43 STAT. 253, REENACTED AS SEC. 501 ET SEQ. OF THE 1932
ACT, 47 STAT. 169, IMPOSED A GRADUATED TAX UPON GIFTS.  IT SUPPLEMENTED
THAT LAID ON TRANSFERS AT DEATH, WHICH HAD LONG BEEN A FEATURE OF THE
REVENUE LAWS.  WHEN THE GIFT TAX WAS ENACTED CONGRESS WAS AWARE THAT
THE ESSENCE OF A TRANSFER IS THE PASSAGE OF CONTROL OVER THE ECONOMIC
BENEFITS OF PROPERTY RATHER THAN ANY TECHNICAL CHANGES IN ITS TITLE. 
SEE BURNET V. GUGGENHEIM, 288 U.S. 280, 287.  FOLLOWING THE ENACTMENT
OF THE GIFT TAX STATUTE THIS COURT IN REINECKE V. NORTHERN TRUST CO.,
278 U.S. 339(1929) HELD THAT THE RELINQUISHMENT AT DEATH OF A POWER OF
REVOCATION OF A TRUST FOR THE BENEFIT OF ITS DONOR WAS A TAXABLE
TRANSFER, CF. SALTONSTALL V. SALTONSTALL, 276 U.S. 260; CHASE NATIONAL
BANK V. UNITED STATES, 278 U.S. 327; AND SIMILARLY IN PORTER V.
COMMISSIONER, 288 U.S. 436(1933), THAT THE RELINQUISHMENT BY A DONOR AT
DEATH OF A RESERVED POWER TO MODIFY THE TRUST EXCEPT IN HIS OWN FAVOR
IS LIKEWISE A TRANSFER OF THE PROPERTY WHICH COULD CONSTITUTIONALLY BE
TAXED UNDER THE PROVISIONS OF SEC. 302(D) OF THE 1926 REVENUE ACT
(REENACTING IN SUBSTANCE 302(D) OF THE 1924 ACT) ALTHOUGH ENACTED AFTER
THE CREATION OF THE TRUST.  CF. BULLEN V. WISCONSIN, 240 U.S. 625;
CURRY V. MCCANLESS, 307 U.S. 357; GRAVES V. ELLIOTT, 307 U.S. 383. 
SINCE IT WAS THE RELINQUISHMENT OF THE POWER WHICH WAS TAXED AS A
TRANSFER AND NOT THE TRANSFER IN TRUST, THE STATUTE WAS NOT
RETROACTIVELY APPLIED.  CF. NICHOLS V. COOLIDGE, 274 U.S. 531;
HELVERING V. HELMHOLZ, 296 U.S. 93, 98. 

THE RATIONALE OF DECISION IN BOTH CASES IS THAT "TAXATION IS NOT SO
MUCH CONCERNED WITH THE REFINEMENTS OF TITLE AS IT IS WITH THE ACTUAL
COMMAND OVER THE PROPERTY TAXED" (SEE CORLISS V. BOWERS, 281 U.S. 376,
378; SALTONSTALL V. SALTONSTALL, SUPRA, 261; BURNET V. GUGGENHEIM,
SUPRA, 287) AND THAT A RETENTION OF CONTROL OVER THE DISPOSITION OF THE
TRUST PROPERTY, WHETHER FOR THE BENEFIT OF THE DONOR OR OTHERS, RENDERS
THE GIFT INCOMPLETE UNTIL THE POWER IS RELINQUISHED WHETHER IN LIFE OR
AT DEATH.  THE RULE WAS THUS ESTABLISHED, AND HAS EVER SINCE BEEN
CONSISTENTLY FOLLOWED BY THE COURT, THAT A TRANSFER OF PROPERTY UPON
TRUST, WITH POWER RESERVED TO THE DONOR EITHER TO REVOKE IT AND
RECAPTURE THE TRUST PROPERTY OR TO MODIFY ITS TERMS SO AS TO DESIGNATE
NEW BENEFICIARIES OTHER THAN HIMSELF IS INCOMPLETE, AND BECOMES
COMPLETE SO AS TO SUBJECT THE TRANSFER TO DEATH TAXES ONLY ON
RELINQUISHMENT OF THE POWER AT DEATH. 

THERE IS NOTHING IN THE LANGUAGE OF THE STATUTE, AND OUR ATTENTION
HAS NOT BEEN DIRECTED TO ANYTHING IN ITS LEGISLATIVE HISTORY TO SUGGEST
THAT CONGRESS HAD ANY PURPOSE TO TAX GIFTS BEFORE THE DONOR HAD FULLY
PARTED WITH HIS INTEREST IN THE PROPERTY GIVEN, OR THAT THE TEST OF THE
COMPLETENESS OF THE TAXED GIFT WAS TO BE ANY DIFFERENT FROM THAT TO BE
APPLIED IN DETERMINING WHETHER THE DONOR HAS RETAINED AN INTEREST SUCH
THAT IT BECOMES SUBJECT TO THE ESTATE TAX UPON ITS EXTINGUISHMENT AT
DEATH.  THE GIFT TAX WAS SUPPLEMENTARY TO THE ESTATE TAX.  THE TWO ARE
IN PARI MATERIA AND MUST BE CONSTRUED TOGETHER.  BURNET V. GUGGENHEIM,
SUPRA, 286.  AN IMPORTANT, IF NOT THE MAIN, PURPOSE OF THE GIFT TAX WAS
TO PREVENT OR COMPENSATE FOR AVOIDANCE OF DEATH TAXES BY TAXING THE
GIFTS OF PROPERTY INTER VIVOS WHICH, BUT FOR THE GIFTS, WOULD BE
SUBJECT IN ITS ORIGINAL OR CONVERTED FORM TO THE TAX LAID UPON
TRANSFERS AT DEATH.  FN1 

BY SEC. 319 UPON A GIFT, THE VALUE OF WHICH IS REQUIRED BY ANY
PROVISION OF THE STATUTE TAXING THE ESTATE TO BE INCLUDED IN THE GROSS
ESTATE, THE GIFT TAX IS TO BE CREDITED ON THE ESTATE TAX.  THE TWO
TAXES ARE THUS NOT ALWAYS MUTUALLY EXCLUSIVE AS IN THE CASE OF GIFTS
MADE IN CONTEMPLATION OF DEATH WHICH ARE COMPLETE AND TAXABLE WHEN
MADE, AND ARE ALSO REQUIRED TO BE INCLUDED IN THE GROSS ESTATE FOR
PURPOSES OF THE DEATH TAX.  BUT SEC. 322 IS WITHOUT APPLICATION UNLESS
THERE IS A GIFT INTER VIVOS WHICH IS TAXABLE INDEPENDENTLY OF ANY
REQUIREMENT THAT IT SHALL BE INCLUDED IN THE GROSS ESTATE.  PROPERTY
TRANSFERRED IN TRUST SUBJECT TO A POWER OF CONTROL OVER ITS DISPOSITION
RESERVED TO THE DONOR IS LIKEWISE REQUIRED BY SEC. 302(D) TO BE
INCLUDED IN THE GROSS ESTATE.  BUT IT DOES NOT FOLLOW THAT THE TRANSFER
IN TRUST IS ALSO TAXABLE AS A GIFT.  THE POINT WAS DECIDED IN THE
GUGGENHEIM CASE WHERE IT WAS HELD THAT A GIFT UPON TRUST, WITH POWER IN
THE DONOR TO REVOKE IT IS NOT TAXABLE AS A GIFT BECAUSE THE TRANSFER IS
INCOMPLETE, AND THAT THE TRANSFER WHETHER INTER VIVOS OR AT DEATH
BECOMES COMPLETE AND TAXABLE ONLY WHEN THE POWER OF CONTROL IS
RELINQUISHED.  WE THINK, AS WAS POINTED OUT IN THE GUGGENHEIM CASE,
SUPRA, 285, THAT THE GIFT TAX STATUTE DOES NOT CONTEMPLATE TWO TAXES
UPON GIFTS NOT MADE IN CONTEMPLATION OF DEATH, ONE UPON THE GIFT WHEN A
TRUST IS CREATED OR WHEN THE POWER OF REVOCATION, IF ANY, IS
RELINQUISHED, AND ANOTHER ON THE TRANSFER OF THE SAME PROPERTY AT DEATH
BECAUSE THE GIFT PREVIOUSLY MADE WAS INCOMPLETE. 

IT IS PLAIN THAT THE CONTENTION OF THE TAXPAYER IN THIS CASE THAT THE
GIFT BECOMES COMPLETE AND TAXABLE UPON THE RELINQUISHMENT OF THE
DONOR'S POWER TO REVOKE THE TRUST CANNOT BE SUSTAINED UNLESS WE ARE TO
HOLD, CONTRARY TO THE POLICY OF THE STATUTE AND THE REASONING IN THE
GUGGENHEIM CASE, THAT A SECOND TAX WILL BE INCURRED UPON THE DONOR'S
RELINQUISHMENT AT DEATH OF HIS POWER TO SELECT NEW BENEFICIARIES, OR
UNLESS AS AN ALTERNATIVE WE ARE TO ABANDON OUR RULING IN THE PORTER
CASE.  THE GOVERNMENT DOES NOT SUGGEST, EVEN IN ITS ARGUMENT IN THE
HUMPHREYS CASE, THAT WE SHOULD DEPART FROM OUR EARLIER RULINGS, AND WE
THINK IT CLEAR THAT WE SHOULD NOT DO SO BOTH BECAUSE WE ARE SATISFIED
WITH THE REASONING UPON WHICH THEY REST AND BECAUSE DEPARTURE FROM
EITHER WOULD PRODUCE INCONSISTENCIES IN THE LAW AS SERIOUS AND
CONFUSING AS THE INCONSISTENCIES IN ADMINISTRATIVE PRACTICE FROM WHICH
THE GOVERNMENT NOW SEEKS RELIEF. 

THERE ARE OTHER PERSUASIVE REASONS WHY THE TAXPAYER'S CONTENTION
CANNOT BE SUSTAINED.  BY SECS. 315(B), 324, AND MORE SPECIFICALLY BY
SEC. 510 OF THE 1932 ACT, THE DONEE OF ANY GIFT IS MADE PERSONALLY
LIABLE FOR THE TAX TO THE EXTENT OF THE VALUE OF THE GIFT IF THE TAX IS
NOT PAID BY THE DONOR.  IT CAN HARDLY BE SUPPOSED THAT CONGRESS
INTENDED TO IMPOSE PERSONAL LIABILITY UPON THE DONEE OF A GIFT OF
PROPERTY, SO INCOMPLETE THAT HE MIGHT BE DEPRIVED OF IT BY THE DONOR
THE DAY AFTER HE HAD PAID THE TAX.  FURTHER, SEC. 321(B)(1) EXEMPTS
FROM THE TAX, GIFTS TO RELIGIOUS, CHARITABLE, AND EDUCATIONAL
CORPORATIONS AND THE LIKE.  A GIFT WOULD SEEM NOT TO BE COMPLETE, FOR
PURPOSES OF THE TAX, WHERE THE DONOR HAS RESERVED THE POWER TO
DETERMINE WHETHER THE DONEES ULTIMATELY ENTITLED TO RECEIVE AND ENJOY
THE PROPERTY ARE OF SUCH A CLASS AS TO EXEMPT THE GIFT FROM TAXATION. 
APART FROM OTHER CONSIDERATIONS WE SHOULD HESITATE TO ACCEPT AS CORRECT
A CONSTRUCTION UNDER WHICH IT COULD PLAUSIBLY BE MAINTAINED THAT A GIFT
IN TRUST FOR THE BENEFIT OF CHARITABLE CORPORATIONS IS THEN COMPLETE SO
THAT THE TAXING STATUTE BECOMES OPERATIVE AND THE GIFT ESCAPES THE TAX
EVEN THOUGH THE DONOR SHOULD LATER CHANGE THE BENEFICIARIES TO THE NON
EXEMPT CLASS THROUGH EXERCISE OF A POWER TO MODIFY THE TRUST IN ANY WAY
NOT BENEFICIAL TO HIMSELF. 

THE ARGUMENT OF PETITIONER THAT THE CONSTRUCTION WHICH THE GOVERNMENT
SUPPORTS HERE, BUT ASSAILS IN THE HUMPHREYS CASE, AFFORDS A READY MEANS
OF EVASION OF THE GIFT TAX IS NOT IMPRESSIVE.  IT IS TRUE, OF COURSE,
THAT UNDER IT GIFT TAXES WILL NOT BE IMPOSED ON TRANSACTIONS WHICH FALL
SHORT OF BEING COMPLETED GIFTS.  BUT IF FOR THAT REASON THEY ARE NOT
TAXED AS GIFTS THEY REMAIN SUBJECT TO DEATH TAXES ASSESSED AT HIGHER
RATES, AND THE GOVERNMENT GETS ITS DUE, WHICH WAS PRECISELY THE END
SOUGHT BY THE ENACTMENT OF THE GIFT TAX. 

NOR DO WE THINK THAT THE PROVISIONS OF SEC. 219(G) OF THE 1924 ACT
HAVE ANY PERSUASIVE INFLUENCE ON THE CONSTRUCTION OF THE GIFT TAX
PROVISIONS WITH WHICH WE ARE NOW CONCERNED.  ONE PURPOSE OF THE GIFT
TAX WAS TO PREVENT OR COMPENSATE FOR THE LOSS OF SURTAX UPON INCOME
WHERE LARGE ESTATES ARE SPLIT UP BY GIFTS TO NUMEROUS DONEES.  FN2
CONGRESS WAS AWARE THAT DONORS IN TRUST MIGHT DISTRIBUTE INCOME AMONG
SEVERAL BENEFICIARIES, ALTHOUGH THE GIFT REMAINS SO INCOMPLETE AS NOT
TO BE SUBJECT TO THE TAX.  IT DEALT WITH THAT CONTINGENCY IN SEC.
219(G) WHICH TAXES TO THE SETTLOR THE INCOME OF A TRUST PAID TO
BENEFICIARIES WHERE HE RESERVED TO HIMSELF AN UNEXERCISED POWER TO
"REVEST IN HIMSELF TITLE" TO THE TRUST PROPERTY PRODUCING THE INCOME. 
WHETHER THIS SECTION IS TO BE READ AS RELIEVING THE DONOR OF THE INCOME
TAX WHERE THE POWER RESERVED IS TO MODIFY THE TRUST, EXCEPT FOR HIS OWN
BENEFIT, WE DO NOT NOW DECIDE.  IF CONGRESS, IN ENACTING IT, UNDERTOOK
TO DEFINE THE EXTENT TO WHICH A RESERVED POWER OF CONTROL OVER THE
DISPOSITION OF THE INCOME IS EQUIVALENT TO OWNERSHIP OF IT SO AS TO
MARK THE LINE BETWEEN THOSE CASES ON THE ONE HAND WHERE THE INCOME IS
TO BE TAXED TO THE DONOR AND THOSE ON THE OTHER WHERE, BY RELATED
WE DO NOT PERCEIVE THAT THE SECTION PRESENTS ANY QUESTION SO COMPARABLE
TO THAT NOW BEFORE US AS TO AFFECT OUR DECISION.  WE ARE CONCERNED HERE
WITH A QUESTION TO WHICH CONGRESS HAS GIVEN NO ANSWER IN THE WORDS OF
THE STATUTE, AND IT MUST BE DECIDED IN CONFORMITY TO THE COURSE OF
JUDICIAL DECISION APPLICABLE TO A UNIFIED SCHEME OF TAXATION OF GIFTS
WHETHER MADE INTER VIVOS OR AT DEATH.  IF CONGRESS, FOR THE PURPOSE OF
TAXING INCOME, HAS DEFINED PRECISELY THE AMOUNT OF CONTROL OVER THE
INCOME WHICH IT DEEMS EQUIVALENT TO OWNERSHIP OF IT, THAT DEFINITION IS
CONTROLLING ON THE COURTS EVEN THOUGH WITHOUT IT THEY MIGHT REACH A
DIFFERENT CONCLUSION, AND EVEN THOUGH RETENTION OF A LESSER DEGREE OF
CONTROL BE DEEMED TO RENDER A TRANSFER INCOMPLETE FOR THE PURPOSE OF
LAYING GIFT AND DEATH TAXES. 

THE QUESTION REMAINS WHETHER THE CONSTRUCTION OF THE STATUTE WHICH WE
CONCLUDE IS TO BE DERIVED FROM ITS LANGUAGE AND HISTORY, SHOULD BE
MODIFIED BECAUSE OF THE FORCE OF TREASURY REGULATIONS OR ADMINISTRATIVE
PRACTICE.  ARTICLE I OF REGULATIONS 67, UNDER THE 1924 ACT (ADOPTED
WITHOUT ANY CHANGE OF PRESENT SIGNIFICANCE IN ARTICLE III, REGULATIONS
79, UNDER THE 1932 ACT) PROVIDES THAT THE CREATION OF A TRUST WHERE THE
GRANTOR RETAINS THE POWER TO REVEST IN HIMSELF TITLE TO THE CORPUS OF
THE TRUST DOES NOT CONSTITUTE A GIFT SUBJECT TO THE TAX AND DECLARES
THAT "WHERE THE POWER RETAINED BY THE GRANTOR TO REVEST IN HIMSELF
TITLE TO THE CORPUS IS NOT EXERCISED, A TAXABLE TRANSFER WILL BE
TREATED AS TAKING PLACE IN THE YEAR IN WHICH SUCH POWER IS
TERMINATED."  PETITIONER URGES THAT THE REGULATION IS IN TERMS
APPLICABLE TO THE TRUST PRESENTLY INVOLVED BECAUSE IT WAS SUBJECT TO A
POWER OF REVOCATION IN FAVOR OF THE DONOR BEFORE THE ENACTMENT OF THE
GIFT TAX WHICH WAS LATER RELINQUISHED.  BUT WE THINK, AS THE COURT
BELOW THOUGHT, THAT THE REGULATION WAS NOT DIRECTED TO THE CASE OF THE
RELINQUISHMENT OF A RESERVED POWER TO SELECT NEW BENEFICIARIES OTHER
THAN THE DONOR AND DID NOT PURPORT TO LAY DOWN ANY RULE FOR CASES WHERE
THERE WAS A RESERVED POWER DIFFERENT FROM OR IN ADDITION TO THE POWER
TO REVEST THE TITLE IN THE DONOR.  AT MOST THE REGULATION IS AMBIGUOUS
AND WITHOUT PERSUASIVE FORCE IN DETERMINING THE TRUE CONSTRUCTION OF
THE STATUTE.  BURNET V. CHICAGO PORTRAIT CO., 285 U.S. 1, 16, 20.  THE
AMENDED REGULATION OF 1936 UNDER THE 1932 ACT, ART. III, REG. 79,
REMOVED THE AMBIGUITY BY DECLARING THAT THE GIFT IS COMPLETE AND
SUBJECT TO THE TAX WHEN "THE DONOR HAS SO PARTED WITH DOMINION AND
CONTROL AS TO LEAVE IN HIM NO POWER TO CAUSE THE BENEFICIAL TITLE TO BE
REVESTED IN HIMSELF."  BUT THIS REGULATION IS BY ITS TERMS APPLICABLE
ONLY TO GIFTS MADE AFTER JUNE 6, 1932, AND IS OF SIGNIFICANCE HERE ONLY
SO FAR AS IT IS DECLARATORY OF THE CORRECT CONSTRUCTION OF THE 1924
ACT. 

PETITIONER ALSO INSISTS THAT THE CONSTRUCTION OF THE STATUTE FOR
WHICH HE CONTENDS IS SUSTAINED BY THE ADMINISTRATIVE PRACTICE.  THAT
PRACTICE IS NOT DISCLOSED BY ANY PUBLISHED TREASURY RULINGS OR
DECISIONS AND OUR ONLY SOURCE OF INFORMATION ON THE SUBJECT IS A
STIPULATION APPEARING IN THE RECORD.  IT STATES THAT IN THE
ADMINISTRATION OF THE GIFT TAX UNDER THE 1924 AND 1932 ACTS AND UNTIL
THE DECISION IN THE HESSLEIN CASE IT WAS "THE UNIFORM PRACTICE OF THE
COMMISSIONER OF INTERNAL REVENUE IN ADJUSTING CASES OF THE CHARACTER OF
THAT HERE INVOLVED TO TREAT THE TAXABLE TRANSFER SUBJECT TO GIFT TAX AS
OCCURRING WHEN THE TRANSFEROR RELINQUISHED ALL POWER TO REVEST IN
HIMSELF TITLE TO THE PROPERTY CONSTITUTING THE SUBJECT OF THE
TRANSFER"; AND THAT THREE HUNDRED CASES "OF SUCH CHARACTER" HAVE BEEN
CLOSED OR ADJUSTED IN CONFORMITY TO THIS PRACTICE. 

THIS DEFINITION OF THE PRACTICE APPEARS AS A PART OF A STIPULATION OF
FACTS SETTING FORTH IN SOME 126 PRINTED PAGES THE ORIGINAL TRUST DEED
OF DECEMBER 24, 1913, AND THIRTEEN MODIFICATIONS OF IT BETWEEN THAT
DATE AND THE FINAL RELINQUISHMENT OF THE POWER OF MODIFICATION ON
AUGUST 20, 1924.  THEY REVEAL A VARIED AND EXTENSIVE POWER OF CONTROL
BY THE DONOR OVER THE DISPOSITION OF THE TRUST PROPERTY WHICH SURVIVED
THE RELINQUISHMENT, IN 1919, OF THE POWER OF REVOCATION FOR HIS OWN
BENEFIT, AND WITH WHICH HE FINALLY PARTED AFTER ENACTMENT OF THE GIFT
TAX.  THE DESCRIPTION OF THE PRACTICE AS THAT RESORTED TO IN ADJUSTING
"CASES OF THE CHARACTER OF THAT HERE INVOLVED," PRESUPPOSES SOME
KNOWLEDGE ON OUR PART OF WHAT THE SIGNERS OF THE STIPULATION REGARDED
AS THE SALIENT FEATURES OF THE PRESENT CASE WHICH, ALTHOUGH NOT
SPECIFIED BY THE STIPULATION, WERE NECESSARILY EMBRACED IN THE
PRACTICE.  ADMINISTRATIVE PRACTICE, TO BE ACCEPTED AS GUIDING OR
CONTROLLING JUDICIAL DECISION, MUST AT LEAST BE DEFINED WITH SUFFICIENT
CERTAINTY TO DEFINE THE SCOPE OF THE DECISION.  IF RELINQUISHMENT OF
THE POWER OF REVOCATION MENTIONED BY THE STIPULATION WAS OF CONTROLLING
SIGNIFICANCE IN DEFINING THE PRACTICE, THAT CIRCUMSTANCE WAS NOT
PRESENT IN THE HESSLEIN CASE OR IN THE HUMPHREYS CASE.  WHETHER IN ANY
OF THE THREE HUNDRED CASES MENTIONED IN THE STIPULATION THE
RELINQUISHMENT OF THE POWER OF REVOCATION WAS FOLLOWED BY THE
RELINQUISHMENT INTER VIVOS OF A POWER OF CHANGING THE BENEFICIARIES
LIKE THAT IN THIS CASE, DOES NOT APPEAR. 

SUCH A STIPULATED DEFINITION OF THE PRACTICE IS TOO VAGUE AND
INDEFINITE TO AFFORD A PROPER BASIS FOR A JUDICIAL DECISION WHICH
UNDERTAKES TO STATE THE CONSTRUCTION OF THE STATUTE IN TERMS OF THE
PRACTICE.  MOREOVER, IF WE REGARD THE STIPULATION AS AGREEING MERELY
THAT THE LEGAL QUESTIONS INVOLVED IN THE PRESENT CASE HAVE UNIFORMLY
BEEN SETTLED ADMINISTRATIVELY IN FAVOR OF THE CONTENTION NOW MADE BY
THE PETITIONER, IT INVOLVES CONCLUSIONS OF LAW OF THE STIPULATORS, BOTH
WITH RESPECT TO THE LEGAL ISSUES IN THE PRESENT CASE AND THOSE RESOLVED
BY THE PRACTICE.  WE ARE NOT BOUND TO ACCEPT, AS CONTROLLING,
STIPULATIONS AS TO QUESTIONS OF LAW.  SWIFT & CO. V. HOCKING VALLEY RY.
CO., 243 U.S. 281, 289. 

WITHOUT ATTEMPTING TO SAY WHAT THE ADMINISTRATIVE PRACTICE HAS
ACTUALLY BEEN WE MAY, FOR PRESENT PURPOSES, MAKE THE ASSUMPTION MOST
FAVORABLE TO THE TAXPAYER IN THIS CASE THAT THE PRACTICE WAS AS STATED
BY THE GOVERNMENT IN ITS BRIEF IN THE HUMPHREYS CASE, VIZ., THAT UNTIL
THE DECISION IN THE HESSLEIN CASE "THE BUREAU CONSISTENTLY TOOK THE
POSITION THAT THE GIFT TAX APPLIED TO A TRANSFER IN TRUST WHERE THE
GRANTOR RESERVED THE RIGHT TO MODIFY THE TRUST BUT NO RIGHT TO REVEST
TITLE IN HIMSELF." 

BUT THE RECORD HERE SHOWS THAT NO SUCH PRACTICE WAS RECOGNIZED AS
CONTROLLING IN 1935 WHEN THE PRESENT CASE FIRST RECEIVED THE ATTENTION
OF THE BUREAU.  ON FEBRUARY 21, 1935, THE ASSISTANT GENERAL COUNSEL
GAVE AN OPINION REVIEWING AT LENGTH THE FACTS OF THE PRESENT CASE AND
THE APPLICABLE PRINCIPLES OF LAW, AND CONCLUDED ON THE REASONING AND
AUTHORITY OF THE GUGGENHEIM AND PORTER CASES THAT THE GIFT WAS NOT
COMPLETE AND TAXABLE UNTIL THE RELINQUISHMENT IN AUGUST, 1924 OF THE
POWER TO MODIFY THE TRUST BY THE SELECTION OF NEW BENEFICIARIES.  IN
APRIL, 1935, THE MATTER WAS RECONSIDERED AND A NEW OPINION WAS GIVEN
WHICH WAS FINALLY ADOPTED BY THE ASSISTANT SECRETARY WHO HAD INTERVENED
IN THE CASE.  THIS OPINION REVERSED THE EARLIER ONE ON THE AUTHORITY OF
THE GUGGENHEIM CASE.  IT WAS AT PAINS TO POINT OUT THAT IN THAT CASE
THE COURT HAD HELD THAT THE RELINQUISHMENT OF THE POWER OF REVOCATION
WAS A TAXABLE GIFT BUT IT MADE NO MENTION OF THE FACT THAT THERE,
UNLIKE THE PRESENT CASE, THERE WAS NO POWER OF MODIFICATION WHICH
SURVIVED THE RELINQUISHMENT OF THE POWER OF REVOCATION, WHICH WAS
CRUCIAL IN THE PORTER CASE.  NEITHER OPINION RESTED UPON OR MADE ANY
MENTION OF ANY PRACTICE AFFECTING CASES WHERE SUCH A POWER OF
MODIFICATION IS RESERVED.  AFTER THE DECISION IN THE HESSLEIN CASE THE
RULING OF THE BUREAU IN THIS CASE WAS AGAIN REVERSED AND NOTICE OF
DEFICIENCY SENT TO THE TAXPAYER. 

FROM THIS RECORD IT IS APPARENT THAT THERE WAS NO ESTABLISHED
ADMINISTRATIVE PRACTICE BEFORE THE OPINION OF APRIL, 1935,  FN3  AND IF
THE PRACTICE WAS ADOPTED THEN IT WAS BECAUSE OF A MISTAKEN DEPARTMENTAL
RULING OF LAW BASED ON AN OBVIOUS MISINTERPRETATION OF THE DECISIONS IN
THE PORTER AND GUGGENHEIM CASES. 

ADMINISTRATIVE PRACTICE MAY BE OF PERSUASIVE WEIGHT IN DETERMINING
THE CONSTRUCTION OF A STATUTE OF DOUBTFUL MEANING WHERE THE PRACTICE
DOES NOT CONFLICT WITH OTHER PROVISIONS OF THE STATUTE AND IS NOT SO
INCONSISTENT WITH APPLICABLE DECISIONS OF THE COURTS AS TO PRODUCE
INCONSISTENCY AND CONFUSION IN THE ADMINISTRATION OF THE LAW.  SUCH A
CHOICE, IN PRACTICE, OF ONE OF TWO POSSIBLE CONSTRUCTIONS OF A STATUTE
BY THOSE WHO ARE EXPERT IN THE FIELD AND SPECIALLY INFORMED AS TO
ADMINISTRATIVE NEEDS AND CONVENIENCE, TENDS TO THE WISE INTERPRETATION
AND JUST ADMINISTRATION OF THE LAWS.  THIS IS THE MORE SO WHEN RELIANCE
HAS BEEN PLACED ON THE PRACTICE BY THOSE AFFECTED BY IT. 

BUT COURTS ARE NOT BOUND TO ACCEPT THE ADMINISTRATIVE CONSTRUCTION OF
A STATUTE REGARDLESS OF CONSEQUENCES, EVEN WHEN DISCLOSED IN THE FORM
OF RULINGS.  SEE HELVERING V. NEW YORK TRUST CO., 292 U.S. 455, 468. 
HERE THE PRACTICE HAS NOT BEEN REVEALED BY ANY PUBLISHED RULINGS OR
ACTION OF THE DEPARTMENT ON WHICH TAXPAYERS COULD HAVE RELIED.  THE
TAXPAYERS IN THE PRESENT CASES ARE CONTENDING FOR DIFFERENT RULINGS. 
IN HARRIET ROSENAU, 37 B.T.A. 468(1938), AS IN THE HUMPHREYS CASE, THE
TAXPAYER CONTENDED THAT THE DATE WHEN THE POWER TO CHANGE THE
BENEFICIARY IS RENOUNCED IS CONTROLLING.  THE PETITIONER HERE, WHO
CONTENDS THAT THE DATE OF RELINQUISHMENT OF THE POWER OF REVOCATION IS
CONTROLLING, RATHER THAN THE DATE OF SURRENDER OF POWER OF
MODIFICATION, SET UP HIS TRUST AND RELINQUISHED THE POWER OF REVOCATION
BEFORE THE GIFT TAX WAS ENACTED.  THE REENACTMENT OF THE GIFT TAX
STATUTE BY THE 1932 ACT CAN NOT BE SAID TO BE A LEGISLATIVE APPROVAL OF
THE PRACTICE WHICH HAD NOT BEEN DISCLOSED BY TREASURY REGULATION,
RULING OR DECISION, AND WHICH DOES NOT APPEAR TO HAVE BEEN ESTABLISHED
BEFORE THE ADOPTION OF THE 1932 ACT.  CF. MCCAUGHN V. HERSHEY CHOCOLATE
CO., 283 U.S. 488, 492; MASSACHUSETTS MUTUAL LIFE INS. CO. V. UNITED
STATES, 288 U.S. 269, 273; HELVERING V. NEW YORK TRUST CO., 292 U.S.
455, 468. 

THE VERY PURPOSE SOUGHT TO BE ACCOMPLISHED BY JUDICIAL ACCEPTANCE OF
AN ADMINISTRATIVE PRACTICE WOULD BE DEFEATED IF WE WERE TO REGARD THE
PRESENT PRACTICE AS CONTROLLING.  IF A PRACTICE IS TO BE ACCEPTED
BECAUSE OF THE SUPERIOR KNOWLEDGE OF ADMINISTRATIVE OFFICERS OF THE
ADMINISTRATIVE NEEDS AND CONVENIENCE, SEE BREWSTER V. GAGE, 280 U.S.
327, 336, THERE IS NO SUCH REASON FOR ITS ACCEPTANCE HERE.  THE
GOVERNMENT BY TAKING NO POSITION CONFESSES THAT IT IS UNABLE TO SAY HOW
ADMINISTRATIVE NEED AND CONVENIENCE WILL BEST BE SERVED.  IF, AS WE
HAVE HELD, WE MAY REJECT AN ESTABLISHED ADMINISTRATIVE PRACTICE WHEN IT
CONFLICTS WITH AN EARLIER ONE AND IS NOT SUPPORTED BY VALID REASONS,
SEE BURNET V. CHICAGO PORTRAIT CO., 285 U.S. 1, 16, WE SHOULD BE
EQUALLY FREE TO REJECT THE PRACTICE WHEN IT CONFLICTS WITH OUR OWN
DECISIONS.  A CHANGE OF PRACTICE TO CONFORM TO JUDICIAL DECISION, SUCH
AS HAS OCCURRED SINCE THE DECISION IN THE HESSLEIN CASE, OR TO MEET
ADMINISTRATIVE EXIGENCIES, WILL BE ACCEPTED AS CONTROLLING WHEN
CONSISTENT WITH OUR DECISIONS.  MORRISSEY V. COMMISSIONER, 296 U.S.
344, 354.  HERE WE HAVE AN ADDED, AND WE THINK CONCLUSIVE REASON FOR
REJECTING THE EARLIER PRACTICE AND ACCEPTING THE LATER.  THE EARLIER,
BECAUSE IN SHARP CONFLICT WITH OUR OWN DECISIONS, AS WE HAVE ALREADY
INDICATED, CANNOT BE CONTINUED WITHOUT THE PERPETUATION OF
INCONSISTENCY AND CONFUSION COMPARABLE TO THAT OF WHICH THE GOVERNMENT
ASKS TO BE RELIEVED BY OUR DECISION.  AFFIRMED. 

FN1  THE GIFT TAX PROVISIONS OF THE REVENUE ACT OF 1924 WERE ADDED BY
AMENDMENTS TO THE REVENUE BILL INTRODUCED ON THE FLOOR OF THE HOUSE AND
THE SENATE.  CONG. REC., VOL. 65, PART 3, PP. 3118-3119; PART 4, PP.
3170, 3171; PART 8, P. 8094.  THE SPONSOR OF THE AMENDMENT IN BOTH
HOUSES URGED THE ADOPTION OF THE BILL AS A "COROLLARY" OR AS
"SUPPLEMENTAL" TO THE ESTATE TAX.  CONG. REC., VOL. 65, PART 3, PP.
3119-3120, 3122; PART.  4, P. 3172; CONG. REC., VOL. 65, PART 8, PP.
8095, 8096. 

THE GIFT TAX OF 1924 WAS REPEALED WHEN CONGRESS, CONCURRENTLY WITH
THE ENACTMENT OF SEC. 302(C) OF THE REVENUE ACT OF 1926, 44 STAT. 70,
125, 126, ESTABLISHING A CONCLUSIVE PRESUMPTION THAT GIFTS WITHIN TWO
YEARS OF DEATH WERE MADE IN CONTEMPLATION OF DEATH AND THEREFORE
SUBJECT TO THE ESTATE TAX.  A GIFT TAX WAS REENACTED BY SEC. 501 OF THE
REVENUE ACT OF 1932, 47 STAT. 169, SHORTLY AFTER IT WAS DECIDED IN
HEINER V. DONNAN, 285 U.S. 312, THAT THE LEGISLATIVE ENACTMENT OF SUCH
A PRESUMPTION VIOLATED THE FIFTH AMENDMENT. 

IN TRUST, WITH POWER OF REVOCATION IN THE DONOR, SHOULD BE TAXED ON
RELINQUISHMENT OF THE POWER.  THIS WAS REPEALED BY SEC. 511 OF THE ACT
OF 1934, 48 STAT. 680, BECAUSE BURNET V. GUGGENHEIM, 288 U.S. 280, HAD
DECLARED THAT SUCH WAS THE LAW WITHOUT SPECIFIC LEGISLATION.  H.R. NO.
704, 73RD CONG., 2D SESS., P. 40; SEN. REP. NO. 558, 73RD CONG., 2D
SESS., P. 50. 

FN2  SEE REFERENCES TO CONGRESSIONAL RECORD, FOOTNOTE 1. 

FN3  IN THE PETITION FOR CERTIORARI FILED IN NOVEMBER, 1937, IN
HESSLEIN V. HOEY (NO. 556), THE GOVERNMENT ASSERTED THAT THE 300 CASES
REFERRED TO IN THE STIPULATION IN THIS CASE HAD BEEN DECIDED SO
RECENTLY THAT THE TIME FOR FILING CLAIMS FOR REFUNDS HAD NOT EXPIRED. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE
..END :







RASQUIN V. HUMPHREYS, 308 U.S. 54 


NO. 37.  ARGUED OCTOBER 19, 1939.  - DECIDED NOVEMBER 6, 1939.  - 101
F.2D 1012, AFFIRMED. 


1.  A GIFT IN TRUST RESERVING POWER IN THE DONOR TO CHANGE THE
BENEFICIARIES OTHER THAN HIMSELF IS INCOMPLETE AND NOT SUBJECT TO BE
TAXED AS A GIFT UNDER THE REVENUE ACT OF 1932.  SANFORD V.
COMMISSIONER, ANTE, P. 39, FOLLOWED.  P. 55. 

2.  ARTICLE III OF TREASURY REGULATION 79(1933 ED.), UNDER THE
REVENUE ACT OF 1932, AFFORDS NO BASIS FOR MODIFICATION OF THE ABOVE
CONSTRUCTION OF THE STATUTE; AND THE AMENDMENT OF THE REGULATION IN
1936 IS SO PLAINLY IN CONFLICT WITH THE STATUTE AS TO PRECLUDE ITS
APPLICATION RETROACTIVELY.  ID. 

RASQUIN, COLLECTOR OF INTERNAL REVENUE, V. HUMPHREYS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 307 U.S. 619, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED FROM THE COLLECTOR IN AN ACTION TO RECOVER MONEY COLLECTED AS
A GIFT TAX. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

DECISION IN THIS CASE TURNS ON THE QUESTION, DIFFERING ONLY IN FORM
FROM THAT THIS DAY DECIDED IN SANFORD V. HELVERING, ANTE, P. 39,
WHETHER, IN CASE OF AN INTER VIVOS TRANSFER OF PROPERTY IN TRUST,
RESERVING TO THE DONOR POWER TO DESIGNATE NEW BENEFICIARIES OTHER THAN
HIMSELF, THE GIFT BECOMES COMPLETE AT THE TIME OF THE CREATION OF THE
TRUST AND SUBJECT TO THE GIFT TAX IMPOSED BY THE REVENUE ACT OF 1932. 

IN DECEMBER, 1934, RESPONDENT CREATED A TRUST OF PERSONAL PROPERTY FOR
HIS OWN BENEFIT FOR LIFE, WITH REMAINDERS OVER TO SPECIFIED CLASSES OF
BENEFICIARIES.  BY THE TRUST INDENTURE HE RESERVED TO HIMSELF A POWER
TO CHANGE THE BENEFICIARIES OF THE TRUST AND TO PRESCRIBE THE
CONDITIONS UNDER WHICH THE NEW BENEFICIARIES SHOULD TAKE AN INTEREST IN
THE TRUST, BUT WITHOUT ANY POWER TO INCREASE HIS OWN BENEFICIAL
INTEREST IN THE TRUST PROPERTY. 

RESPONDENT PAID THE GIFT TAX ASSESSED AGAINST HIM WITH RESPECT TO THE
TRANSFER OF THE REMAINDER INTERESTS UPON CREATION OF THE TRUST, AND
BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT TO RECOVER THE TAX AS
ILLEGALLY COLLECTED.  JUDGMENT IN HIS FAVOR WAS AFFIRMED BY THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT, 101 F.2D 1012, ON THE
AUTHORITY OF HESSLEIN V. HOEY, 91 F.2D 954.  WE GRANTED CERTIORARI, 307
U.S. 619, SO THAT THIS CASE MIGHT BE CONSIDERED WITH THE SANFORD CASE. 

THE GIFT TAX, SEC. 319 ET SEQ. OF THE 1924 ACT, SO FAR AS NOW
MATERIAL, REAPPEARED IN SEC. 501 ET SEQ. OF THE 1932 ACT, 47 STAT.
169.  OTHER PERTINENT PROVISIONS OF THE EARLIER ACT WERE REENACTED
WITHOUT CHANGE OF PRESENT MOMENT IN SECS. 501, 510, 801.  THE
APPLICABLE ESTATE TAX PROVISIONS ARE SEC. 302(C)(D) OF THE 1926 ACT, 44
STAT. 40, 71.  SECTION 501(C) OF THE 1932 ACT ADDED A NEW PROVISION
THAT TRANSFERS IN TRUST, WITH POWER OF REVOCATION IN THE DONOR, SHOULD
BE TAXED ON RELINQUISHMENT OF THE POWER.  THIS WAS REPEALED BY SEC. 511
OF THE ACT OF 1934, 48 STAT. 680, BECAUSE BURNET V. GUGGENHEIM, 288
U.S. 280, HAD DECLARED THAT SUCH WAS THE LAW WITHOUT SPECIFIC
LEGISLATION.  H.R. NO. 704, 73RD CONG., 2D SESS., P. 40; SEN. REP. NO.
558, 73RD CONG., 2D SESS., P. 50. 

FOR THE REASONS STATED IN OUR OPINION IN THE SANFORD CASE WE CONCLUDE
THAT THE RESERVED POWER IN THE DONOR AT THE TIME OF THE CREATION OF THE
TRUST RENDERED THE GIFT INCOMPLETE AND NOT SUBJECT TO THE GIFT TAX.  AS
POINTED OUT IN OUR OPINION IN THE SANFORD CASE THE TREASURY REGULATION
UNDER THE 1932 ACT, ART. III, REGULATION 79(1933 EDITION), IN FORCE
WHEN THE TRUST WAS CREATED, AFFORDS NO BASIS FOR MODIFICATION OF OUR
CONSTRUCTION OF THE STATUTE.  WHATEVER VALIDITY THE AMENDED REGULATION
OF 1936 MAY HAVE IN ITS PROSPECTIVE OPERATION, WE THINK IT IS SO
PLAINLY IN CONFLICT WITH THE STATUTE AS TO PRECLUDE ITS APPLICATION
RETROACTIVELY SO AS TO SUBJECT TO TAX SUCH TRANSFER AS WAS MADE BY THE
CREATION OF THE TRUST IN 1934.  CF. HELVERING V. R.J. REYNOLDS TOBACCO
CO., 306 U.S. 110.  AFFIRMED. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :


















BOTELER V. INGELS, 308 U.S. 57 


NOS. 15 AND 16.  ARGUED OCTOBER 16, 1939.  - DECIDED NOVEMBER 6, 1939. 
100 F.2D 915, AFFIRMED. 


1.  SECTION 57(J) OF THE BANKRUPTCY ACT, BARRING ALLOWANCE OF DEBTS
OWING TO FEDERAL, STATE, OR LOCAL GOVERNMENTS, AS PENALTIES, EXCEPT FOR
THE AMOUNT OF THE PECUNIARY LOSS SUSTAINED ETC., PROHIBITS ALLOWANCE OF
TAX PENALTIES ONLY IF INCURRED BY THE BANKRUPT PRIOR TO BANKRUPTCY.  P.
59. 

2.  PENALTIES ATTACHING UPON NONPAYMENT OF STATE AUTOMOBILE LICENSE
TAXES, WHICH TAXES AND PENALTIES ACCRUED WHILE THE BUSINESS OF A
BANKRUPT ESTATE WAS BEING OPERATED BY A TRUSTEE IN BANKRUPTCY FOR THE
PURPOSE OF LIQUIDATION, ARE ALLOWABLE AGAINST THE BANKRUPT ESTATE BY
VIRTUE OF THE ACT OF JUNE 18, 1934, WHICH SUBJECTS TRUSTEES AND OTHER
APPOINTEES OF UNITED STATES COURTS, WHO ARE AUTHORIZED TO CONDUCT A
BUSINESS, "TO ALL STATE AND LOCAL TAXES APPLICABLE TO SUCH BUSINESS THE
SAME AS IF SUCH BUSINESS WERE CONDUCTED BY AN INDIVIDUAL OR
CORPORATION.  ...  " P. 60. 

BOTELER, TRUSTEE, V. INGELS, DIRECTOR OF MOTOR VEHICLES OF CALIFORNIA,
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 307 U.S. 617, TO REVIEW THE REVERSAL OF TWO ORDERS OF THE
DISTRICT COURT, WHICH IN EFFECT HELD A BANKRUPT ESTATE NOT LIABLE FOR
PENALTIES ACCRUING UPON NONPAYMENT OF STATE AUTOMOBILE LICENSE TAXES. 
APPEALS FROM THE ORDERS WERE CONSOLIDATED FOR BRIEFING, HEARING, AND
DECISION IN THE CIRCUIT COURT OF APPEALS; AND THE CASES ARE TREATED
SIMILARLY HERE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

UNDER CALIFORNIA LAW VEHICLE LICENSE AND REGISTRATION FEES ARE DUE
THE STATE ON JANUARY FIRST OF EACH YEAR; THEY BECOME DELINQUENT WHEN A
VEHICLE IS OPERATED WITHOUT REGISTRATION AND LICENSE; IF THE FEES ARE
NOT PAID WITHIN THIRTY DAYS AFTER DELINQUENCY A PENALTY EQUAL TO THE
FEES ACCRUES; FEES AND PENALTIES ARE PROTECTED BY STATUTORY LIEN ON THE
VEHICLE FROM THE DUE DATE.  FN1 

THE SINGLE QUESTION PRESENTED IS SUFFICIENTLY STATED BY THE PETITION
FOR CERTIORARI: 

"IS A BANKRUPT'S ESTATE LIABLE TO PENALTIES IMPOSED BY STATE STATUTES
FOR NON-PAYMENT OF AUTOMOBILE LICENSE FEES WHERE LICENSE FEES AND
PENALTIES CLAIMS ACCRUED DURING OPERATIONS FOR PURPOSES OF LIQUIDATION
OF THE BUSINESS OF BANKRUPT'S ESTATE BY THE TRUSTEE IN BANKRUPTCY?" 

AS TRUSTEES OF A BUSINESS IN BANKRUPTCY, PETITIONER AND HIS
PREDECESSOR CONTINUOUSLY OPERATED UNREGISTERED AND UNLICENSED VEHICLES
ON CALIFORNIA HIGHWAYS, FROM JANUARY FIRST TO FEBRUARY TWENTY-SEVENTH. 
TENDER OF FEES WITHOUT ACCRUED PENALTIES WAS REJECTED BY CALIFORNIA. 
UPON PETITION OF THE TRUSTEE, THE REFEREE IN BANKRUPTCY ORDERED THE
VEHICLES SOLD FREE AND CLEAR OF ANY CLAIMS OR LIENS OF THE STATE BUT
PERMITTED CALIFORNIA TO FILE CLAIMS FOR FEES, WITHOUT PENALTIES, WITHIN
THIRTY DAYS OR BE FOREVER BARRED.  THE REFEREE'S ORDER WAS CONFIRMED BY
THE DISTRICT COURT WHICH ALSO DIRECTED CALIFORNIA OFFICIALS
(RESPONDENTS HERE) TO ISSUE LICENSES TO THE TRUSTEE.  THE CIRCUIT COURT
OF APPEALS REVERSED, ORDERING ALTERNATIVELY THAT ACCRUED FEES AND
PENALTIES BE PAID, OR THAT THE VEHICLES BE DISPOSED OF SUBJECT TO THE
LIEN OF THE STATE FOR THE UNPAID TAXES AND PENALTIES.  FN2  COURT OF
APPEALS FOR THE SEVENTH CIRCUIT,  FN3  WE GRANTED CERTIORARI. 

THE TRUSTEE INSISTS THAT THE STATE IS BARRED FROM COLLECTING THE
PENALTIES BECAUSE OF SUBDIVISION 57(J) OF THE BANKRUPTCY ACT  FN4
WHICH PROVIDES: 

"DEBTS OWING TO THE UNITED STATES, A STATE, A COUNTY, A DISTRICT, OR
A MUNICIPALITY AS A PENALTY OR FORFEITURE SHALL NOT BE ALLOWED, EXCEPT
FOR THE AMOUNT OF THE PECUNIARY LOSS SUSTAINED BY THE ACT, TRANSACTION,
OR PROCEEDING OUT OF WHICH THE PENALTY OR FORFEITURE AROSE, WITH
REASONABLE AND ACTUAL COSTS OCCASIONED THEREBY AND SUCH INTEREST AS MAY
HAVE ACCRUED THEREON ACCORDING TO LAW." 

RECOGNIZING THAT 57(J) PROHIBITS ALLOWANCE OF TAX PENALTIES ACCRUING
PRIOR TO BANKRUPTCY,  FN5 THE STATE NEVERTHELESS INSISTS THAT THIS
SUBDIVISION DOES NOT EXEMPT THE TRUSTEE FROM STATE LAWS APPLICABLE TO
THE BUSINESS HE OPERATES AFTER BANKRUPTCY.  CALIFORNIA CONSIDERS THE
TRUSTEE SUBJECT TO THE REQUIREMENTS AND PENALTIES OF ITS LICENSE AND
REGISTRATION LAWS UNDER AN ACT OF CONGRESS OF JUNE 18, 1934, 48 STAT.
993, READING IN PART AS FOLLOWS: 

"ANY RECEIVER, LIQUIDATOR, REFEREE, TRUSTEE, OR OTHER OFFICERS OR
AGENTS APPOINTED BY ANY UNITED STATES COURT WHO IS AUTHORIZED BY SAID
COURT TO CONDUCT ANY BUSINESS, OR WHO DOES CONDUCT ANY BUSINESS, SHALL,
FROM AND AFTER JUNE 18, 1934, BE SUBJECT TO ALL STATE AND LOCAL TAXES
APPLICABLE TO SUCH BUSINESS THE SAME AS IF SUCH BUSINESS WERE CONDUCTED
BY AN INDIVIDUAL OR CORPORATION; ...  " 

FIRST.  SUBDIVISION 57(J) PROHIBITS ALLOWANCE OF A TAX PENALTY
AGAINST THE BANKRUPT ESTATE ONLY IF INCURRED BY THE BANKRUPT BEFORE
BANKRUPTCY BY REASON OF HIS OWN DELINQUENCY.  AFTER BANKRUPTCY, IT DOES
NOT PURPORT TO EXEMPT THE TRUSTEE FROM THE OPERATION OF STATE LAWS, OR
TO RELIEVE THE ESTATE FROM LIABILITY FOR THE TRUSTEE'S DELINQUENCIES. 
FN6  FOR 57(J) IS A SUBDIVISION OF SEC. 57 OF THE BANKRUPTCY ACT
GOVERNING "PROOF AND ALLOWANCE OF CLAIMS."  AND 57(A) MAKES CLEAR THAT
SEC. 57 AS A WHOLE RELATES ONLY TO CLAIMS "JUSTLY OWING FROM THE
BANKRUPT TO THE CREDITOR."  THE FEES AND PENALTIES IN ISSUE WERE
INCURRED BY THE TRUSTEE IN OPERATING THE BANKRUPT BUSINESS, AND THUS
WERE NOT OWED BY THE BANKRUPT TO THE STATE AS A "CREDITOR."  THEREFORE,
REGARDLESS OF OTHER RIGHTS THE STATE MIGHT HAVE, IT COULD NOT FILE
PROOF OF CLAIM FOR THESE FEES AND PENALTIES AS A CREDITOR UNDER SEC.
57.  AND NEITHER THE TAX LIABILITY NOR THE PENALTIES INCURRED BY THE
TRUSTEE AFTER BANKRUPTCY ARE GOVERNED BY THIS SECTION OR ITS
SUBDIVISIONS.  WE MUST LOOK ELSEWHERE THAN TO 57(J) TO DETERMINE
WHETHER THE COURT BELOW CORRECTLY HELD THAT CALIFORNIA MAY ENFORCE ITS
STATUTORY PENALTIES AGAINST THIS ESTATE. 

SECOND.  THE ACT OF JUNE 18, 1934 DECLARES THAT A TRUSTEE IN
BANKRUPTCY CONDUCTING A BUSINESS, AS THIS TRUSTEE WAS, "SHALL  ...  BE
SUBJECT TO ALL STATE AND LOCAL TAXES APPLICABLE TO SUCH BUSINESS THE
SAME AS IF SUCH BUSINESS WERE CONDUCTED BY AN INDIVIDUAL OR
CORPORATION.    ..."  AS ORIGINALLY OFFERED, THIS ACT APPLIED ONLY TO
RECEIVERS.  FN7  REPORTED BY THE HOUSE COMMITTEE ON THE JUDICIARY
WITHOUT AMENDMENT,  FN8  THE BILL WAS AMENDED ON THE HOUSE FLOOR TO
APPLY NOT ONLY TO RECEIVERS BUT TO A "LIQUIDATOR, REFEREE, TRUSTEE OR
OTHER OFFICER OR AGENT."  FN9 

WE NEED NOT DETERMINE WHETHER, WITHOUT LEGISLATION SUCH AS THE 1934
ACT, THE FACT THAT A LOCAL BUSINESS IN BANKRUPTCY IS OPERATED BY A
BANKRUPTCY TRUSTEE MAKES THE BUSINESS IMMUNE FROM STATE LAWS AND VALID
MEASURES FOR THEIR ENFORCEMENT.  CLEARLY, MEANS OF PERMITTING SUCH
IMMUNITY FROM LOCAL LAWS WILL NOT BE READ INTO THE BANKRUPTCY ACT.  AT
ANY RATE, CONGRESS HAS HERE WITH VIGOR AND CLARITY DECLARED THAT A
TRUSTEE AND OTHER COURT APPOINTEES WHO OPERATE BUSINESSES MUST DO SO
SUBJECT TO STATE TAXES "THE SAME AS IF SUCH BUSINESS (ES) WERE
CONDUCTED BY AN INDIVIDUAL OR CORPORATION."  IF BUSINESSES IN
CALIFORNIA NOT CONDUCTED BY A BANKRUPTCY TRUSTEE ARE DELINQUENT IN THE
FEES, THEY MUST PAY THE PENALTY.  HOWEVER, PETITIONER'S CONTENTION
WOULD EXEMPT A TRUSTEE OPERATING A BUSINESS IN BANKRUPTCY FROM THIS
DOUBLE TAX LIABILITY WHICH OTHER DELINQUENTS MUST BEAR.  A STATE WOULD
THUS BE ACCORDED THE THEORETICAL PRIVILEGE OF TAXING BUSINESSES
OPERATED BY TRUSTEES IN BANKRUPTCY ON AN EQUAL FOOTING WITH ALL OTHER
BUSINESSES, BUT WOULD BE DENIED THE TRADITIONAL AND ALMOST UNIVERSAL
METHOD OF ENFORCING PROMPT PAYMENT. 

TAXATION ON AND REGULATION OF HIGHWAY TRAFFIC ARE MATTERS OF
CONSTANTLY INCREASING IMPORTANCE AND CONCERN TO THE STATES.  THE ACT OF
1934 INDICATES A CONGRESSIONAL PURPOSE TO FACILITATE - NOT TO OBSTRUCT
ENFORCEMENT OF STATE LAWS; THE COURT BELOW CORRECTLY RECOGNIZED AND
APPLIED THIS CONGRESSIONAL PURPOSE AND ITS JUDGMENT IS AFFIRMED. 

FN1  C. 362, CALIF. STAT. OF 1935, P. 1313, AS AMENDED.  C. 27,
CALIF. STAT. OF 1935, CALIF. VEHICLE CODE, PP. 147, 150, 151. 

FN2  100 F.2D 915.  THE COURT BELOW STATED THAT THE TWO CASES HERE
REVIEWED (NOS. 15, 16) "INVOLVED THE IDENTICAL FACTS, WERE CONSOLIDATED
FOR BRIEFING AND HEARING AND ARE DISPOSED OF IN THIS OPINION."  WE HAVE
FOLLOWED THE SAME COURSE. 

FN3  IN RE MESSENGER'S MERCHANTS LUNCH ROOM, 85 F.2D 1002. 

FN4  C. 6, 11 U.S.C., SEC. 93(J). 

FN5  CF. NEW YORK V. JERSAWIT, 263 U.S. 493, 496. 

FN6  WHETHER THE TRUSTEE MIGHT BE PERSONALLY SURCHARGED BECAUSE HIS
REFUSAL TO PAY THE FEES SUBJECTED THE ESTATE TO THE INCREASED LIABILITY
OF THE PENALTIES, IS NOT PRESENTED. 

FN7  CONG. RECORD, 73RD CONG., 2ND SESS., P. 4037. 

FN8  ID., P. 6067. 

FN9  ID., P. 6656. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :













U.S. V. GLENN L. MARTIN CO., 308 U.S. 62 


NO. 30.  ARGUED OCTOBER 19, 20, 1939.  - DECIDED NOVEMBER 6, 1939.  -
100 F.2D 793, REVERSED. 


1.  A CONTRACT FOR SALE TO THE UNITED STATES OF AIRCRAFT AND AIRCRAFT
MATERIAL, CONTAINED A PROVISION THAT THE STIPULATED PRICES INCLUDED
"ANY FEDERAL TAX HERETOFORE IMPOSED BY THE CONGRESS WHICH IS APPLICABLE
TO THE MATERIAL CALLED FOR" BY THE CONTRACT, AND A PROVISION REQUIRING
ADDITIONAL COMPENSATION TO THE SELLER IN THE EVENT OF IMPOSITION BY
CONGRESS SUBSEQUENT TO THE DATE OF THE CONTRACT OF ANY TAXES WHICH
SHOULD BE "MADE APPLICABLE DIRECTLY UPON PRODUCTION, MANUFACTURE, OR
SALE OF THE SUPPLIES CALLED FOR HEREIN AND ARE PAID BY THE CONTRACTOR
ON THE ARTICLES OR SUPPLIES HEREIN CONTRACTED FOR  ..."  HELD, THAT
FEDERAL SOCIAL SECURITY TAXES (SUBSEQUENTLY IMPOSED BY CONGRESS) WERE
NOT TAXES OF SUCH CHARACTER AS REQUIRED ADDITIONAL COMPENSATION TO THE
SELLER UNDER THE TERMS OF THE CONTRACT.  P. 64. 

2.  IT IS UNNECESSARY IN THIS CASE TO CONSIDER WHETHER A TAX PAID
UNDER A STATE UNEMPLOYMENT COMPENSATION STATUTE IS A TAX "IMPOSED BY
CONGRESS."  P. 66. 

UNITED STATES V. GLENN L. MARTIN CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 307 U.S. 618, TO REVIEW THE REVERSAL OF A JUDGMENT IN
FAVOR OF THE UNITED STATES IN AN ACTION AGAINST IT ON A CONTRACT, 23
F.SUPP.  262. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WE MUST DETERMINE WHETHER A CONTRACT TO PURCHASE CERTAIN AIRCRAFT AND
AIRCRAFT MATERIAL FROM RESPONDENT REQUIRED THE UNITED STATES TO
INCREASE THE STIPULATED PRICE BY THE AMOUNT OF SOCIAL SECURITY TAXES
PAID BY RESPONDENT. 

JUNE 28, 1934, THE WAR DEPARTMENT AND RESPONDENT, A MARYLAND
MANUFACTURER, MADE THE CONTRACT, PROVIDING - 

"IT IS EXPRESSLY UNDERSTOOD AND AGREED TO BY AND BETWEEN THE PARTIES
HERETO THAT THE PRICES HEREIN STIPULATED INCLUDE ANY FEDERAL TAX
HERETOFORE IMPOSED BY THE CONGRESS WHICH IS APPLICABLE TO THE MATERIAL
CALLED FOR UNDER THE TERMS OF THIS CONTRACT.  IF ANY SALES TAX,
PROCESSING TAX, ADJUSTMENT CHARGE, OR OTHER TAXES OR CHARGES ARE
IMPOSED OR CHANGED BY THE CONGRESS SUBSEQUENT TO THE DATE OF THIS
CONTRACT AND MADE APPLICABLE DIRECTLY UPON PRODUCTION, MANUFACTURE, OR
SALE OF THE SUPPLIES CALLED FOR HEREIN AND ARE PAID BY THE CONTRACTOR
ON THE ARTICLES OR SUPPLIES HEREIN CONTRACTED FOR THEN THE PRICE HEREIN
STIPULATED WILL BE INCREASED OR DECREASED ACCORDINGLY AND ANY AMOUNT
DUE THE CONTRACTOR AS RESULT OF SUCH CHANGE WILL BE CHARGED TO THE
GOVERNMENT AND ENTERED ON VOUCHERS AS SEPARATE ITEMS." 

WITH RESPECT TO PAYROLLS OF EMPLOYEES ALLEGED TO HAVE BEEN ENGAGED IN
FULFILLING THIS CONTRACT DURING 1936 AND 1937, RESPONDENT PAID $794.03
IN FEDERAL SOCIAL SECURITY TAXES AND $6,943.29 UNDER THE STATE OF
MARYLAND'S UNEMPLOYMENT COMPENSATION LAW.  BOTH THE FEDERAL TAX AND
MARYLAND'S TAX WERE LEVIED "SUBSEQUENT TO THE DATE OF THIS CONTRACT." 
RESPONDENT CLAIMS THAT BOTH THE MARYLAND UNEMPLOYMENT COMPENSATION
TAXES FN1  AND THE FEDERAL SOCIAL SECURITY TAXES  FN2  WERE "IMPOSED
...  BY  ...  CONGRESS" AND WERE OF THE TYPE FOR WHICH THE CONTRACT
PROVIDED EXTRA COMPENSATION. 

REJECTING RESPONDENT'S CONSTRUCTION OF THE CONTRACT, THE DISTRICT
COURT HELD THAT NO PART OF THE TAXES PAID BY RESPONDENT SERVED TO
INCREASE THE LIABILITY OF THE GOVERNMENT ON ITS CONTRACT.  FN3 THE
CIRCUIT COURT OF APPEALS REVERSED  FN4  AND WE GRANTED CERTIORARI. 
FN5 

OBVIOUSLY, THE SELLER FIXED ITS STIPULATED PRICES SO AS TO PROVIDE A
MARGIN OF PROFIT OVER FEDERAL TAXES FOR WHICH IT MIGHT AT THE TIME OF
THE CONTRACT BE RESPONSIBLE ON THE PARTICULAR "MATERIAL" SOLD.  THIS
CLEARLY APPEARS FROM THE GOVERNING PROVISIONS'S OPENING DECLARATION
THAT "THE PRICES HEREIN STIPULATED INCLUDE ANY FEDERAL TAX HERETOFORE
IMPOSED BY CONGRESS WHICH IS APPLICABLE TO THE MATERIAL CALLED FOR
UNDER THE TERMS OF THIS CONTRACT."  BUT, WITHOUT MORE, FUTURE INCREASES
IN FEDERAL TAXES "APPLICABLE TO THE MATERIAL" MIGHT HAVE SUBSTANTIALLY
AFFECTED THE MARGIN OF PROFIT WHICH THE CONTRACT WAS CALCULATED TO
INSURE.  AGAINST THE CONTINGENCY OF INCREASE IN FEDERAL TAXES
APPLICABLE TO THE "MATERIAL" PURCHASED, THE GOVERNMENT UNDERTOOK TO
COMPENSATE THE SELLER FOR PAYMENT OF FUTURE FEDERAL TAXES "ON THE
ARTICLES OR SUPPLIES CONTRACTED FOR" SHOULD CONGRESS LEVY ANY SALES
TAX, PROCESSING TAX OR OTHER TAX "APPLICABLE DIRECTLY UPON PRODUCTION,
MANUFACTURE OR SALE OF THE ARTICLES  ...  CONTRACTED FOR  ..." 

BUT THE SOCIAL SECURITY ACT  FN6  IMPOSES UPON EVERY EMPLOYER "AN
EXCISE TAX WITH RESPECT TO HAVING INDIVIDUALS IN HIS EMPLOY."  AND
EMPLOYMENT IN THAT ACT "MEANS ANY SERVICE, OF WHATEVER NATURE,
PERFORMED WITHIN THE UNITED STATES BY AN EMPLOYEE FOR AN EMPLOYER
..."  WITH EXCEPTIONS NOT MATERIAL HERE.  THIS EXCISE HAS BEEN
REPRESENTED AS ONE LEVIED "UPON THE RELATION OF EMPLOYMENT"  FN7  AND
UPON "THE RIGHT TO EMPLOY"  FN8  AND AS A PAYROLL TAX.  FN9  IT IS NOT
AS TAXES UPON THE PRIVILEGE OF SELLING, MANUFACTURING OR PROCESSING
CHARACTERISTICALLY ARE - MEASURED BY THE VALUE OF THE PRIVILEGE TAXED,
OR BY EITHER QUANTITY OR PRICE OF WHAT IS MANUFACTURED, PROCESSED OR
SOLD.  A TAX ON THE PROCESSING OR SALE OF AN ARTICLE, WHILE AN EXCISE,
COMMONLY WOULD BE DENOTED A TAX "ON" THE ARTICLE PROCESSED OR SOLD. 
THE CONTRACT ITSELF SPEAKS OF SUCH TAXES WHICH MAY, IN THE FUTURE, BE
"PAID BY THE CONTRACTOR ON THE ARTICLES OR SUPPLIES CONTRACTED FOR." 
THUS, THIS CONTRACT WAS CONCERNED WITH FEDERAL TAXES "ON" THE GOODS TO
BE PROVIDED UNDER IT, WHATEVER THE OCCASION FOR THE TAXES.  AND A TAX
"ON" THE RELATIONSHIP OF EMPLOYER-EMPLOYEE - CHARACTERIZED AS A TAX ON
PAYROLLS - IS NOT OF THE TYPE TREATED BY THE CONTRACT AS A TAX "ON" THE
GOODS OR ARTICLES SOLD. 

THE CONTRACT REFERS ONLY TO FEDERAL TAXES, EXISTING OR FUTURE, ON
"MATERIAL," "ARTICLES" OR "SUPPLIES."  AND ADDITIONAL COMPENSATION IS
PROVIDED TO OFFSET ONLY FEDERAL TAXES OF THE TYPE OF SALES TAXES AND
PROCESSING TAXES, "APPLICABLE DIRECTLY UPON PRODUCTION, MANUFACTURE, OR
SALE" AND ACTUALLY PAID ON SUPPLIES DELIVERED TO THE GOVERNMENT.  SINCE
A TAX ON PAYROLLS, OR ON THE RELATIONSHIP OF EMPLOYMENT, IS NOT - BUT
IN FACT IS DISTINCT FROM - THE TYPE OF TAX "ON" ARTICLES REPRESENTED BY
SALES TAXES AND PROCESSING TAXES, RESPONDENT IS NOT ENTITLED TO THE
ADDITIONAL COMPENSATION WHICH IT SEEKS. 

IN VIEW OF OUR DETERMINATION THAT THE FEDERAL SOCIAL SECURITY TAX WAS
NOT CONTEMPLATED BY THE CONTRACT, WE NEED NOT DISCUSS RESPONDENT'S
CONTENTION THAT THE TAX PAID UNDER THE MARYLAND UNEMPLOYMENT
COMPENSATION ACT WAS A TAX "IMPOSED  ...  BY  ...  CONGRESS." 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  LAWS OF MARYLAND, EXTRAORDINARY SESSION, DEC. 1936, C. 1. 

FN2  49 STAT. 620, 637. 

FN3  23 F.SUPP.  262. 

FN4  100 F.2D 793. 

FN5  307 U.S. 618.  THE GOVERNMENT'S PETITION FOR CERTIORARI SET OUT
THAT "ALMOST ALL GOVERNMENT CONTRACTS SINCE 1933 HAVE CONTAINED
PROVISIONS EITHER IDENTICAL WITH THAT HERE INVOLVED, OR SO SIMILAR AS
TO PRESENT SUBSTANTIALLY THE SAME QUESTION.  ...  THE WAR DEPARTMENT
ALONE  ...  STATES THAT APPROXIMATELY 4,000 POTENTIAL CLAIMS MAY ARISE
UNDER CONTRACTS WITH LANGUAGE IDENTICAL WITH THAT IN  ...  THE CONTRACT
IN THIS CASE."  THE COMPTROLLER GENERAL OF THE UNITED STATES HAS
INTERPRETED A CONTRACT SUBSTANTIALLY IDENTICAL WITH THE ONE UNDER
CONSIDERATION AS DENYING REIMBURSEMENT FOR SOCIAL SECURITY TAXES.  16
COMP. GEN. 790(1937).  CERTIORARI WAS GRANTED IN ORDER TO OBTAIN A
FINAL DETERMINATION OF THE QUESTION. 

FN6  SOCIAL SECURITY ACT, C. 531, 49 STAT. 620, SECS. 804, 210(B). 

FN7  STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 578. 

FN8  SEE, CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495, 508. 

FN9  ID., 506, 511. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :








TREINIES V. SUNSHINE MIN. CO., 308 U.S. 66 


NO. 4.  ARGUED OCTOBER 10, 1939.  - DECIDED NOVEMBER 6, 1939.  - 99 F.2D
651, AFFIRMED. 


1.  THIS COURT INQUIRES SUA SPONTE INTO THE QUESTION OF THE FEDERAL
COURT'S JURISDICTION OF THIS CASE UNDER THE INTERPLEADER ACT OF JANUARY
20, 1936, SINCE ITS OWN JURISDICTION IS AFFECTED THEREBY.  P. 70. 

2.  A BILL INTERPLEADING ONE GROUP OF CLAIMANTS, ALL OF WHOM ARE
CITIZENS OF THE SAME STATE, AND ANOTHER GROUP CLAIMING ADVERSELY, ALL
OF WHOM ARE CITIZENS OF ANOTHER STATE, OF WHICH LATTER STATE THE
COMPLAINANT HIMSELF IS A CITIZEN, SATISFIES THE REQUIREMENTS OF THE
INTERPLEADER ACT AS TO DIVERSITY OF CITIZENSHIP, SINCE THE ACT REQUIRES
DIVERSITY ONLY AS BETWEEN THE CLAIMANTS.  P. 70. 

3.  ART. III, SEC. 2 OF THE FEDERAL CONSTITUTION, EXTENDING THE
JUDICIAL POWER OF THE UNITED STATES TO CONTROVERSIES "BETWEEN CITIZENS
OF DIFFERENT STATES," IS BROAD ENOUGH TO AUTHORIZE THE GRANTING OF
JURISDICTION TO THE FEDERAL COURT IN SUCH A CASE OF INTERPLEADER.  P.
71. 

4.  THE ELEVENTH AMENDMENT IS NOT INFRINGED BY JOINDER OF A STATE
COURT JUDGE AND A STATE COURT RECEIVER AS DEFENDANTS IN AN INTERPLEADER
PROCEEDING IN THE FEDERAL COURT, IN WHICH PROCEEDING THE STATE HAS NO
INTEREST AND NEITHER THE JUDGE NOR THE RECEIVER IS ENJOINED BY THE
FINAL DECREE.  P. 74. 

5.  THE AUTHORITY OF THE FEDERAL COURT UNDER THE INTERPLEADER ACT TO
ENJOIN PARTIES TO THE PROCEEDING FROM FURTHER PROSECUTING ANY SUIT IN
ANY STATE OR FEDERAL COURT IN RESPECT OF THE PROPERTY INVOLVED, IS
ESSENTIAL TO THE INTERPLEADER JURISDICTION AND IS A VALID EXERCISE OF
THE JUDICIAL POWER.  SECTION 265 OF THE JUDICIAL CODE - AN EARLIER
STATUTE - FORBIDDING THE FEDERAL COURTS FROM STAYING PROCEEDINGS IN ANY
STATE COURT, IS INAPPLICABLE.  P. 74. 

6.  A FINAL DECREE OF AN IDAHO STATE COURT OF GENERAL JURISDICTION IN
A SUIT TO DETERMINE THE OWNERSHIP OF PERSONAL PROPERTY, AWARDING THE
PROPERTY TO THE PLAINTIFF AND HOLDING THAT A PROBATE COURT OF
WASHINGTON WHICH HAD AWARDED THE PROPERTY TO ANOTHER, UNDER WHOM THE
DEFENDANT CLAIMED, WAS WITHOUT JURISDICTION OF THE SUBJECT MATTER,
HELD, AS TO THE ISSUE OF THE JURISDICTION OF THE STATE COURTS, RES
JUDICATA IN A PROCEEDING IN THE FEDERAL COURT INTERPLEADING THE SAME
PLAINTIFF AND DEFENDANT IN RESPECT OF THE SAME PROPERTY.  PP. 75, 78. 

TREINIES V. SUNSHINE MINING CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 306 U.S. 624, TO REVIEW THE AFFIRMANCE OF A DECREE, 19
F.SUPP.  587, ADVERSE TO THE PETITIONER HERE, IN A PROCEEDING UNDER THE
INTERPLEADER ACT.  IN AN EARLIER PHASE OF THE CONTROVERSY, CERTIORARI
TO REVIEW A DECREE OF THE SUPREME COURT OF IDAHO, 57 IDAHO 10; 59 P.2D
1087, WAS DENIED BY THIS COURT, 299 U.S. 615. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT OF CERTIORARI WAS GRANTED TO REVIEW THE ACTION OF THE COURT
OF APPEALS FOR THE NINTH CIRCUIT IN AFFIRMING  FN1  A DECREE OF THE
DISTRICT COURT OF IDAHO  FN2  UPON A BILL OF INTERPLEADER FILED BY THE
SUNSHINE MINING COMPANY, A WASHINGTON CORPORATION, AGAINST EVELYN H.
TREINIES AND OTHER CITIZENS OF THE STATE OF WASHINGTON, CLAIMANTS TO
CERTAIN STOCK OF THE SUNSHINE MINING COMPANY AND THE DIVIDENDS
THEREFROM, AND KATHERINE MASON AND T. R. MASON, HER HUSBAND, AND OTHER
CITIZENS OF THE STATE OF IDAHO, ADVERSE CLAIMANTS TO THE SAME STOCK AND
DIVIDENDS. 

THE OCCASION FOR THE INTERPLEADER WAS THE EXISTENCE OF INCONSISTENT
JUDGMENTS AS TO THE OWNERSHIP OF THE SUNSHINE STOCK.  THE SUPERIOR
COURT OF SPOKANE COUNTY, WASHINGTON, IN ADMINISTERING THE ESTATE OF
AMELIA PELKES, ADJUDGED THAT IT WAS THE PROPERTY OF JOHN PELKES,
ASSIGNOR OF PETITIONER, EVELYN H. TREINIES; AND THE DISTRICT COURT OF
SHOSHONE COUNTY, IDAHO, ADJUDGED THAT THE SAME PROPERTY BELONGED TO
RESPONDENT, KATHERINE MASON.  THEY ARE THE SOLE DISPUTANTS.  OTHER
PARTIES MAY BE DISREGARDED.  ON ACCOUNT OF CONFLICT BETWEEN THE
JUDGMENTS OF THE RESPECTIVE COURTS OF SISTER STATES AND THE ASSERTION
OF THE FAILURE TO GIVE FULL FAITH AND CREDIT TO BOTH IN THE
INTERPLEADER ACTION, WE GRANTED CERTIORARI. 

THE ALLEGED RIGHTS OF THE RESPECTIVE CLAIMANTS AROSE AS FOLLOWS:
AMELIA PELKES, THE WIFE OF JOHN PELKES, DIED TESTATE IN SPOKANE,
WASHINGTON, IN 1922, LEAVING HER HUSBAND AND ONE CHILD, KATHERINE
MASON, THE OFFSPRING OF A FORMER MARRIAGE, AS THE BENEFICIARIES OF HER
WILL.  AS A PART OF HER COMMUNITY ESTATE, THERE WERE 30,598 SHARES OF
SUNSHINE MINING STOCK.  IT WAS CONSIDERED VALUELESS AND WAS NOT
INVENTORIED OR APPRAISED.  THE ORDER OF DISTRIBUTION ASSIGNED A THREE
FOURTHS UNDIVIDED INTEREST IN THESE SHARES TO PELKES AND A ONE-FOURTH
TO MRS. MASON, AN OMNIBUS CLAUSE COVERING UNKNOWN PROPERTY.  THE ESTATE
OF MRS. PELKES WAS NOT DISTRIBUTED ACCORDING TO THE ORDER OF
DISTRIBUTION.  INSTEAD PELKES AND HIS STEPDAUGHTER, MRS. MASON, DIVIDED
THE INVENTORIED PROPERTY BETWEEN THEMSELVES IN ACCORDANCE WITH THEIR
WISHES. 

IT IS THE CONTENTION OF PELKES AND HIS ASSIGNEE THAT THIS PARTITION
OF THE PROPERTY WAS IN CONSIDERATION OF THE RELEASE BY MRS. MASON TO
PELKES OF ALL OF HER INTEREST IN THE SHARES OF THE STOCK OF THE
SUNSHINE MINING COMPANY.  ON THE OTHER HAND, MRS. MASON ASSERTS THAT
PELKES WAS TO HOLD ONE-HALF OF THE AMOUNT OWNED, 15,299 SHARES, IN
TRUST FOR HER. 

IN AUGUST, 1934, MRS. MASON INSTITUTED A SUIT IN THE DISTRICT COURT
OF IDAHO FOR SHOSHONE COUNTY AGAINST PELKES, EVELYN H. TREINIES, THE
SUNSHINE MINING COMPANY, AND OTHERS NOT IMPORTANT HERE, ALLEGING THAT
SHE WAS THE OWNER OF 15,299 SHARES OF THE STOCK, THAT THESE HAD BEEN
ACQUIRED BY MISS TREINIES FROM PELKES WITH KNOWLEDGE OF MRS. MASON'S
RIGHTS, AND PRAYING THAT THE TRUST BE ESTABLISHED AND THE STOCK AND
DIVIDENDS BE AWARDED TO HER, MRS. MASON.  IT WAS FINALLY DECREED BY THE
DISTRICT COURT ON AUGUST 18, 1936, AFTER AN APPEAL TO THE SUPREME COURT
OF IDAHO,  FN3  THAT THE STOCK AND DIVIDENDS BELONGED TO MRS. MASON. 
CERTIORARI TO THE SUPREME COURT OF IDAHO WAS REFUSED BY THIS COURT. 
FN4 

BEFORE THE ENTRY OF THE FIRST DECREE OF THE DISTRICT COURT OF IDAHO,
KATHERINE MASON FILED A PETITION IN THE SUPERIOR COURT OF SPOKANCE
COUNTY, WASHINGTON, IN THE PROBATE PROCEEDINGS INVOLVING AMELIA PELKES'
WILL, TO REMOVE THE EXECUTOR, JOHN PELKES, FOR FAILURE TO FILE HIS
REPORT OF DISTRIBUTION AND FOR DISSIPATION OF THE SUNSHINE STOCK. 
PELKES BY CROSS-PETITION AND PETITION CLAIMED THE STOCK.  THEREUPON
MRS. MASON APPLIED TO THE SUPREME COURT OF WASHINGTON FOR A WRIT OF
PROHIBITION AGAINST FURTHER PROCEEDINGS IN THE SUPERIOR COURT ON THE
GROUND OF LACK OF JURISDICTION IN THAT COURT TO DETERMINE THE
CONTROVERSY OVER THE STOCK.  THE WRIT WAS REFUSED.  ON MAY 31, 1935, A
JUDGMENT WAS ENTERED IN THE SUPERIOR COURT UPHOLDING IN FULL THE
OWNERSHIP OF PELKES. 

AFTER THE SUPREME COURT OF IDAHO HAD DECIDED THE IDAHO SUIT AGAINST
PELKES AND MISS TREINIES, THEY FILED IN AUGUST, 1936, A SUIT IN THE
SUPERIOR COURT OF WASHINGTON AGAINST KATHERINE MASON AND OTHERS
ALLEGING THAT THEY WERE THE OWNERS OF THE STOCK, FURTHER ALLEGING THAT
THE IDAHO DECREE WAS INVALID FOR LACK OF JURISDICTION, AND ASKING THAT
THEIR TITLE TO THE STOCK BE QUIETED AND THE SUNSHINE MINING COMPANY, A
PARTY TO THIS AND THE IDAHO SUIT, BE COMPELLED TO RECOGNIZE THEIR
OWNERSHIP.  IT WAS AT THIS POINT IN THE LITIGATION THAT THE SUNSHINE
COMPANY FILED THE BILL OF INTERPLEADER NOW UNDER CONSIDERATION. 
FURTHER PROCEEDINGS IN THE SUIT TO QUIET TITLE WERE ENJOINED BY THE
DISTRICT COURT IN THIS ACTION. 

JURISDICTION. - BEFORE CONSIDERING THE QUESTIONS RAISED BY THE
PETITION FOR CERTIORARI, THE JURISDICTION OF THE FEDERAL COURT UNDER
THE ACT OF JANUARY 20, 1936,  FN5  MUST BE DETERMINED.  AS THIS ISSUE
AFFECTS THE JURISDICTION OF THIS COURT, IT IS RAISED ON ITS OWN
MOTION.  FN6  BY THE ACT OF JANUARY 20, 1936, THE DISTRICT COURTS HAVE
JURISDICTION OF SUITS IN EQUITY, INTERPLEADING TWO OR MORE ADVERSE
CLAIMANTS, INSTITUTED BY COMPLAINANTS WHO HAVE PROPERTY OF THE
REQUISITE VALUE CLAIMED BY CITIZENS OF DIFFERENT STATES.  THE SUIT MAY
BE MAINTAINED "ALTHOUGH THE TITLES OR CLAIMS OF THE CONFLICTING
CLAIMANTS DO NOT HAVE A COMMON ORIGIN, OR ARE NOT IDENTICAL, BUT ARE
ADVERSE TO AND INDEPENDENT OF ONE ANOTHER."  PROCESS MAY RUN AT LEAST
THROUGHOUT ALL THE STATES. 

AS REQUIRED BY THE ACT THIS CASE WAS BEGUN BY THE COMPLAINANT, A
CORPORATION OF THE STATE OF WASHINGTON, IMPLEADING ONE GROUP OF
CLAIMANTS WHO ARE CITIZENS OF THAT SAME STATE AND ANOTHER, THE ADVERSE
GROUP, WHO ARE CITIZENS OF IDAHO.  UNDER THE INTERPLEADER ACT, THIS
IDENTITY OF CITIZENSHIP IS PERMISSIBLE SINCE DIVERSITY ONLY BETWEEN
CLAIMANTS IS REQUIRED.  THE INTERPLEADER ACT IS BASED UPON THE CLAUSE
OF SEC. 2, ARTICLE III, OF THE CONSTITUTION WHICH EXTENDS THE JUDICAL
POWER OF THE UNITED STATES TO CONTROVERSIES "BETWEEN CITIZENS OF
DIFFERENT STATES."  IS THIS GRANT OF JURISDICTION BROAD ENOUGH TO COVER
THE PRESENT SITUATION? 

THE JUDICIAL CODE, SEC. 24, PROVIDES FOR ORIGINAL JURISDICTION OF
SUITS OF A CIVIL NATURE BETWEEN CITIZENS OF DIFFERENT STATES IN
PRECISELY THE LANGUAGE OF THE CONSTITUTION.  THE PRESENT WORDING IS
PRACTICALLY THE SAME AS THAT OF THE ACT OF MARCH 3, 1875,  FN7  "THE
CIRCUIT COURTS ...  SHALL HAVE ORIGINAL COGNIZANCE  ...  OF ALL SUITS
...  IN WHICH THERE SHALL BE A CONTROVERSY BETWEEN CITIZENS OF
DIFFERENT STATES," AND THAT OF THE ORIGINAL JUDICIARY ACT OF SEPTEMBER
24, 1789,  FN8  "THE SUIT IS BETWEEN A CITIZEN OF THE STATE WHERE THE
SUIT IS BROUGHT AND A CITIZEN OF ANOTHER STATE."  WITHOUT RULING AS TO
POSSIBLE LIMITATIONS OF THE CONSTITUTIONAL GRANT, IT IS HELD BY THIS
COURT THAT THE STATUTORY LANGUAGE OF THE RESPECTIVE JUDICIARY ACTS
FORBIDS SUITS IN THE FEDERAL COURTS UNLESS ALL THE PARTIES ON ONE SIDE
ARE OF CITIZENSHIP DIVERSE TO THOSE ON THE OTHER SIDE.  FN9  FOR THE
DETERMINATION OF THE VALIDITY OF THE INTERPLEADER ACT WE NEED NOT
DECIDE WHETHER THE WORDS OF THE CONSTITUTION, "CONTROVERSIES  ...
BETWEEN CITIZENS OF DIFFERENT STATES," HAVE A DIFFERENT MEANING FROM
THAT GIVEN BY JUDICIAL CONSTRUCTION TO SIMILAR WORDS IN THE JUDICIARY
ACT.  EVEN THOUGH THE CONSTITUTIONAL LANGUAGE LIMITS THE JUDICIAL POWER
TO CONTROVERSIES WHOLLY BETWEEN CITIZENS OF DIFFERENT STATES, THAT
REQUIREMENT IS SATISFIED HERE.  FN10 

THIS IS FOR THE REASON THAT THERE IS A REAL CONTROVERSY BETWEEN THE
ADVERSE CLAIMANTS.  THEY ARE BROUGHT INTO THE COURT BY THE COMPLAINANT
STAKEHOLDER WHO SIMULTANEOUSLY DEPOSITS THE MONEY OR PROPERTY, DUE AND
INVOLVED IN THE DISPUTE, INTO THE REGISTRY OF THE COURT.  THIS WAS DONE
IN THIS CASE.  THE ACT PROVIDES THAT THE "COURT SHALL HEAR AND
DETERMINE THE CAUSE AND SHALL DISCHARGE THE COMPLAINANT FROM FURTHER
LIABILITY."  SUCH DEPOSIT AND DISCHARGE EFFECTUALLY DEMONSTRATES THE
APPLICANT'S DISINTERESTEDNESS AS BETWEEN THE CLAIMANTS AND AS TO THE
PROPERTY IN DISPUTE,  FN11 AN ESSENTIAL IN INTERPLEADERS.  FN12  THE
COMPLAINANT IS A PROPER PARTY FOR THE DETERMINATION OF THE CONTROVERSY
BETWEEN THE ADVERSE CLAIMANTS, CITIZENS OF DIFFERENT STATES.  THEIR
CONTROVERSY COULD HAVE BEEN SETTLED BY LITIGATION BETWEEN THEM IN THE
FEDERAL COURTS.  UNDER SIMILAR CIRCUMSTANCES AS TO PARTIES, THIS COURT
RULED THAT A REMOVAL OF SEPARABLE CONTROVERSIES TO THE FEDERAL COURT
WAS PERMISSIBLE EVEN THOUGH A PROPER DEFENDANT WAS A CITIZEN OF THE
SAME STATE AS THE PLAINTIFF.  FN13  WE SO HELD AS TO A STAKEHOLDER IN
SALEM CO. V. MANUFACTURERS' CO. FN14 THERE A SUIT WAS BROUGHT IN A
STATE COURT AGAINST THE MANUFACTURERS' COMPANY, A DELAWARE CORPORATION,
AND AGAINST A CO-CITIZEN OF PLAINTIFF, A MASSACHUSETTS CORPORATION, THE
INTERNATIONAL TRUST COMPANY.  THE MANUFACTURERS' COMPANY REMOVED AND
PLAINTIFF SOUGHT A REMAND ALLEGING ITS CO-CITIZEN WAS A NECESSARY
PARTY.  THE SUIT WAS TO DETERMINE RIGHTS TO A FUND IN THE CO-CITIZEN'S
HANDS "AND TO HAVE THE SAME PAID TO" THE PLAINTIFF.  THE RIGHT OF
REMOVAL WAS UPHELD ON THE GROUND THAT THE ONLY OBLIGATION OF THE
STAKEHOLDER WAS TO PAY OVER THE MONEY DEPOSITED WITH IT.  IN CRAMER V.
PHOENIX MUT. LIFE INS. CO. FN15  THE CIRCUIT COURT OF APPEALS FOR THE
EIGHTH CIRCUIT, CONSIDERING THAT THE CLAIMANTS WERE THE REAL
CONTESTANTS, CONSTRUED THE INTERPLEADER ACT OF MAY 8TH, 1926,  FN16  TO
GIVE JURISDICTION TO THE FEDERAL COURT ALTHOUGH THE INTERPLEADER AND
CERTAIN CLAIMANTS WERE CITIZENS OF THE SAME STATE.  THE LANGUAGE AS TO
CITIZENSHIP IS THE SAME AS THAT OF THE ACT HERE INVOLVED.  FN17 

APPLICATION OF INTERPLEADER ACT.  - THE INCLUSION AS DEFENDANTS OF
THE JUDGE OF THE SUPERIOR COURT OF WASHINGTON, THE ADMINISTRATOR OF
JOHN PELKES, AND A COURT RECEIVER OF THE PROPERTY IN DISPUTE IS SAID TO
VIOLATE THE RULE AGAINST A CITIZEN SUING A STATE EMBODIED IN THE
ELEVENTH AMENDMENT.  FN18 

WITHOUT ANALYZING ALL THE PLEADINGS, A SHORT ANSWER AGAINST THE
PETITIONER'S CONTENTION IS THE FACT THAT NEITHER THE RECEIVER NOR THE
JUDGE IS ENJOINED BY THE FINAL DECREE.  PELKES' ADMINISTRATOR AND MISS
TREINIES ARE ENJOINED FROM FURTHER PROSECUTION OF THE WASHINGTON ACTION
TO QUIET TITLE.  THEY ARE THE PARTIES WHOSE INDIVIDUAL RIGHTS TO THE
STOCK ARE SETTLED IN THIS ACTION.  THE STATE OF WASHINGTON HAS NO
INTEREST AND NO INFRINGEMENT OF THE ELEVENTH AMENDMENT OCCURS. 

NEITHER ARE THE PROVISIONS OF SEC. 265 OF THE JUDICIAL CODE
APPLICABLE.  THAT SECTION FORBIDS A UNITED STATES COURT FROM STAYING
PROCEEDINGS IN ANY STATE COURT.  THE INTERPLEADER ACT, PASSED
SUBSEQUENTLY, HOWEVER, AUTHORIZES THE ENJOINING OF PARTIES TO THE
INTERPLEADER FROM FURTHER PROSECUTING ANY SUIT IN ANY STATE OR UNITED
STATES COURT ON ACCOUNT OF THE PROPERTY INVOLVED.  SUCH AUTHORITY IS
ESSENTIAL TO THE PROTECTION OF THE INTERPLEADER JURISDICTION AND IS A
VALID EXERCISE OF THE JUDICIAL POWER.  SECTION 265 IS A MERE LIMITATION
UPON THE GENERAL EQUITY POWERS OF THE UNITED STATES COURTS AND MAY BE
VARIED BY CONGRESS TO MEET THE REQUIREMENTS OF FEDERAL LITIGATION. 
FN19 

RES JUDICATA OF THE IDAHO DECREE.  - ON THE MERITS, PETITIONER'S
OBJECTION TO THE DECREE BELOW IS THAT IT FAILS TO CONSIDER AND GIVE
EFFECT TO THE WASHINGTON JUDGMENT OF MAY 31, 1935, AWARDING THE
PROPERTY IN QUESTION TO PELKES, PETITIONER'S ASSIGNOR.  IT IS
PETITIONER'S CLAIM THAT THE WASHINGTON JUDGMENT MUST BE CONSIDERED AS
EFFECTIVE IN THIS LITIGATION BECAUSE THE QUESTION OF THE JURISDICTION
OF THE WASHINGTON COURT WAS ACTUALLY LITIGATED BEFORE THE SUPREME COURT
OF WASHINGTON AND DETERMINED FAVORABLY TO PETITIONER BY THE REFUSAL TO
GRANT A WRIT OF PROHIBITION AGAINST THE EXERCISE OF JURISDICTION BY THE
WASHINGTON SUPERIOR COURT IN PROBATE.  THIS FAILURE TO GIVE EFFECT TO
THE JUDGMENT IS SAID TO INFRINGE THE FULL FAITH AND CREDIT CLAUSE OF
THE CONSTITUTION.  THE DECREE OF THE COURT OF APPEALS IS BASED UPON THE
DOCTRINE OF RES JUDICATA.  THE APPLICABILITY OF THAT DOCTRINE ARISES
FROM A DETERMINATION OF PERTINENT MATTERS BY THE SUPREME COURT OF
IDAHO.  ACCORDINGLY WE TURN TO A DISCUSSION OF WHETHER OR NOT THE
ISSUES TENDERED BELOW BY PETITIONER WERE FORECLOSED BY THE DECISION OF
THE SUPREME COURT OF IDAHO OF JULY 23, 1936. 

THE ISSUES TENDERED BY PETITIONER IN THE TRIAL COURT IN THIS
INTERPLEADER PROCEEDING WERE (1) THE INVALIDITY OF THE IDAHO DECREE,
AND (2) THE CONCLUSIVENESS OF THE WASHINGTON DECREE OF MAY 31, 1935,
AWARDING THE PROPERTY TO PELKES.  BOTH OF THESE ISSUES REST ON
PETITIONER'S CONTENTION THAT COMPLETE JURISDICTION OF THE PROBATE OF
MRS. PELKES' ESTATE WAS IN THE SUPERIOR COURT OF WASHINGTON, THAT THE
STOCK WAS AT ALL TIMES A PART OF THAT ESTATE, AND THAT THEREFORE THAT
COURT'S JURISDICTION OVER THE DISPOSITION OF THE STOCK WAS EXCLUSIVE OF
ALL OTHER COURTS.    THE IDAHO DECREE WAS PLEADED IN THIS PROCEEDING AS
RES JUDICATA OF THE CONTROVERSY BETWEEN PETITIONER AND RESPONDENT.  THE
PROCEEDINGS IN IDAHO SHOWED A CAUSE OF ACTION BASED ON AN ALLEGED ORAL
AGREEMENT OF PELKES, MADE IN IDAHO AT THE TIME OF DISTRIBUTION OF MRS.
PELKES' ESTATE, TO HOLD THE SUNSHINE MINING COMPANY STOCK IN TRUST FOR
THE JOINT BENEFIT OF HIMSELF AND MRS. MASON.  ALL PARTIES, INCLUDING
THIS PETITIONER, WERE BEFORE THE COURT AND A DECREE WAS ENTERED
SUSTAINING THE TRUST AND AWARDING THE STOCK AND DIVIDENDS, AS CLAIMED,
TO RESPONDENT, MRS. MASON, WITH DIRECTIONS TO THE MINING COMPANY TO
RECOGNIZE THE ASSIGNMENT OF THE CERTIFICATES AND ADJUDGING A RECOVERY
FOR PRIOR DIVIDENDS AGAINST PELKES AND PETITIONER.  THE IDAHO COURT WAS
A COURT OF GENERAL JURISDICTION.  FN20 

THE COURT OF APPEALS HELD THAT THE IDAHO SUIT SETTLED THAT THE STOCK
WAS DISTRIBUTED IN 1923 AND THAT THEREFORE THE IDAHO COURT HAD
JURISDICTION TO DETERMINE RIGHTS UNDER THE ALLEGED ORAL TRUST.  IT WAS
FURTHER OF THE VIEW THAT THE IDAHO COURT'S INVALIDATION OF THE
WASHINGTON JUDGMENT AND ITS DECREE UPHOLDING MRS. MASON'S CLAIM TO THE
DISPUTED PROPERTY WERE RES JUDICATA IN THIS ACTION.  PETITIONER'S ONLY
GROUND FOR OBJECTION TO THE CONCLUSION THAT THE IDAHO DECREE IS RES
JUDICATA RESTS ON THE ARGUMENT THAT BY SUCH RULING BELOW THE "JUDGMENT
OF THE COURTS OF THE STATE OF WASHINGTON AFFECTING THE SAME SUBJECT
MATTER AND PARTIES" IS IGNORED. 

IN THE IDAHO PROCEEDING THE WASHINGTON JUDGMENT AWARDING THE STOCK
AND DIVIDENDS TO PELKES WAS PLEADED IN BAR TO MRS. MASON'S SUIT TO
RECOVER THE STOCK.  THE EFFECTIVENESS OF THE WASHINGTON JUDGMENT AS A
BAR DEPENDED UPON WHETHER THE COURT WHICH RENDERED IT HAD JURISDICTION,
AFTER AN ORDER OF DISTRIBUTION, TO DEAL WITH SETTLEMENTS OF
DISTRIBUTEES WITH RESPECT TO THE ASSETS OF AN ESTATE.  ON CONSIDERATION
IT WAS DETERMINED IN THE IDAHO PROCEEDING THAT THE WASHINGTON COURT DID
NOT HAVE THIS JURISDICTION AND THAT THE STOCK OF THE MINING COMPANY
BECAME THE PROPERTY OF MRS. MASON.  IN DECLINING TO GIVE EFFECT TO THE
WASHINGTON DECREE FOR LACK OF JURISDICTION OVER THE SUBJECT MATTER, THE
IDAHO COURT DETERMINED ALSO THE BASIC QUESTION RAISED BY PETITIONER IN
THE INTERPLEADER ACTION.  THE CONTENTION OF PETITIONER IN THE
INTERPLEADER PROCEEDINGS THAT THE IDAHO COURT DID NOT HAVE JURISDICTION
OF THE STOCK CONTROVERSY BECAUSE THAT CONTROVERSY WAS IN THE EXCLUSIVE
JURISDICTION OF THE WASHINGTON PROBATE COURT MUST FALL, BECAUSE OF THE
IDAHO DECISION THAT THE WASHINGTON PROBATE COURT DID NOT HAVE EXCLUSIVE
JURISDICTION.  THIS IS TRUE EVEN THOUGH THE QUESTION OF THE WASHINGTON
JURISDICTION HAD BEEN ACTUALLY LITIGATED AND DECIDED IN FAVOR OF PELKES
IN THE WASHINGTON PROCEEDINGS.  IF DECIDED ERRONEOUSLY IN THE IDAHO
PROCEEDINGS, THE RIGHT TO REVIEW THAT ERROR WAS IN THOSE (THE IDAHO)
PROCEEDINGS.  WHILE PETITIONER SOUGHT REVIEW FROM THE DECREE OF THE
SUPREME COURT OF IDAHO BY PETITION FOR CERTIORARI TO THIS COURT, WHICH
WAS DENIED, NO REVIEW WAS SOUGHT FROM THE FINAL DECREE OF THE IDAHO
DISTRICT COURT OF AUGUST 18, 1936, ON NEW FINDINGS OF FACT AND
CONCLUSIONS OF LAW ON REMITTITUR FROM THE SUPREME COURT OF IDAHO. 
FN21 

THE COURT OF APPEALS CORRECTLY DETERMINED THAT THE ISSUE OF
JURISDICTION VEL NON OF THE WASHINGTON COURT COULD NOT BE RELITIGATED
IN THIS INTERPLEADER.  AS THE IDAHO DISTRICT COURT WAS A COURT OF
GENERAL JURISDICTION, ITS CONCLUSIONS ARE UNASSAILABLE COLLATERALLY
EXCEPT FOR FRAUD OR LACK OF JURISDICTION.  THE HOLDING BY THE IDAHO
COURT OF NO JURISDICTION IN WASHINGTON NECESSARILY DETERMINED THE
QUESTION RAISED HERE AS TO THE IDAHO JURISDICTION AGAINST MISS
TREINIES' CONTENTION.  SHE IS BOUND BY THAT JUDGMENT. 

THE POWER OF THE IDAHO COURT TO EXAMINE INTO THE JURISDICTION OF THE
WASHINGTON COURT IS BEYOND QUESTION.  FN22  EVEN WHERE THE DECISION
AGAINST THE VALIDITY OF THE ORIGINAL JUDGMENT IS ERRONEOUS, IT IS A
VALID EXERCISE OF JUDICIAL POWER BY THE SECOND COURT.  FN23 

ONE TRIAL OF AN ISSUE IS ENOUGH."  FN24  THE PRINCIPLES OF RES
JUDICATA APPLY TO QUESTIONS OF JURISDICTION AS WELL AS TO OTHER
ISSUES,"  FN25  AS WELL TO JURISDICTION OF THE SUBJECT MATTER AS OF THE
PARTIES.  FN26  DECREE AFFIRMED. 

FN1  99 F.2D 651. 

FN2  19 F.SUPP.  587. 

FN3  57 IDAHO 10; 59 P.2D 1087. 

FN4  PELKES V. MASON, 299 U.S. 615. 

FN5  49 STAT. 1096, 28 U.S.C. SEC. 41(26). 

FN6  MANSFIELD, C. & L.M. RY. CO. V. SWAN, 111 U.S. 379, 384. 

FN7  18 STAT. 470. 

FN8  1 STAT. 78. 

FN9  STRAWBRIDGE V. CURTISS, 3 CRANCH 267; CAMP V. GRESS, 250 U.S.
308, 312. 

FN10  CF. CHAFEE, INTERPLEADER IN THE UNITED STATES COURTS, 41 YALE
L.J. 1134, 1141, 1165; AND CHAFEE, THE FEDERAL INTERPLEADER ACT OF
1936, 45 YALE L.J. 963, 973. 

FN11  DIVERSITY REQUIREMENTS FOR FEDERAL EQUITY JURISDICTION TO AVOID
A MULTIPLICITY OF SUITS FROM DIVERSE CLAIMANTS WITH CLAIMS CONTESTED BY
THE DEBTOR IS NOT INVOLVED.  CF. DI GIOVANNI V. CAMDEN INS. ASSN., 296
U.S. 64, 70. 

FN12  SANDERS V. FERTILIZER WORKS, 292 U.S. 190, 200; KILLIAN V.
EBBINGHAUS, 110 U.S. 568, 571. 

FN13  BARNEY V. LATHAM, 103 U.S. 205, 213; CF. PULLMAN CO. V.
JENKINS, 305 U.S. 534, 538. 

FN14 264 U.S. 182, 189. 

FN15  91 F.2D 141, 146.  SEE ALSO MUTUAL LIFE INS. CO. V. LOTT, 275
F. 365, 372(S.D. CAL.); NEW YORK LIFE INS. CO. V. CROSS, 7 F.SUPP. 
130(S.D.N.Y.); CF. EAGLE, STAR AND BRITISH DOMINIONS V. TADLOCK, 14
F.SUPP.  933(S.D. CAL.), REVERSED, 91 F.2D 481(C.C.A. 9); ACKERMAN V.
TOBIN, 22 F.2D 541(C.C.A. 8). 

FN16  44 STAT. 416. 

FN17  WE DO NOT DERERMINE WHETHER THE RULING HERE IS INCONSISTENT
WITH THE CONCLUSION IN THOSE CASES WHERE JURISDICTION WAS RESTED ON
DIVERSITY OF CITIZENSHIP BETWEEN THE APPLICANT AND CO-CITIZENS WHO ARE
CLAIMANTS.  (MALLERS V. EQUITABLE LIFE ASSUR.  SOC., 87 F.2D 233(C.C.A.
7), CERT. DENIED, 301 U.S. 685(NEW YORK CORPORATION IMPLEADS ILLINOIS
CLAIMANTS); SECURITY TRUST & SAVINGS BANK V. WALSH, 91 F.2D 481(C.C.A.
9)(ENGLISH CORPORATION IMPLEADS CALIFORNIA CLAIMANTS); PENN MUT. LIFE
INS. CO. V. MEGUIRE, 13 F.SUPP.  967, 971(W.D. KY.)(PENNSYLVANIA
CORPORATION IMPLEADS KENTUCKY CLAIMANTS); TURMAN OIL CO. V. LATHROP, 8
F.SUPP.  870, 872(N.D. OKLA.)(DELAWARE CORPORATION IMPLEADS OKLAHOMA
CLAIMANTS). 

FN18  WORCESTER COUNTY TRUST CO. V. RILEY, 302 U.S. 292, 296, IS
RELIED UPON. 

FN19  SMITH V. APPLE, 264 U.S. 274, 278; DUGAS V. AMERICAN SURETY
CO., 300 U.S. 414, 428. 

FN20  CONSTITUTION OF IDAHO, ART. 5, SEC. 20; IDAHO CODE, 1932, SEC.
1-705. 

FN21  IT IS UNNECESSARY TO CONSIDER WHETHER THE IDAHO DETERMINATION
AS TO THE JURISDICTION OF THE WASHINGTON COURT WAS PROPERLY MADE.  AS
THE PROCEDURE BY WHICH A STATE COURT EXAMINES INTO THE QUESTION OF THE
JURISDICTION OF THE COURT OF A SISTER STATE IS A MATTER WITHIN THE
CONTROL OF THE RESPECTIVE STATES (ADAM V. SAENGER, 303 U.S. 59, 63), IT
NEED ONLY BE ADDED THAT SUCH PROCEDURE IS SUBJECT TO QUESTION ONLY ON
DIRECT APPEAL. 

IT WAS STIPULATED BY ALL PARTIES TO THE IDAHO CAUSE THAT THE IDAHO
COURTS MIGHT TAKE JUDICIAL NOTICE OF THE STATUTES AND DECISIONS OF
WASHINGTON.  SOME CONSTITUTIONAL AND STATUTORY PROVISIONS RELATING TO
THE JURISDICTION OF THE SUPERIOR COURT WERE PLEADED AND ADMITTED.  IT
HAS LONG BEEN THE RULE IN IDAHO THAT ITS COURTS DO NOT TAKE JUDICIAL
NOTICE OF THE LAWS OF ANOTHER STATE AND THAT WITHOUT ALLEGATION AND
EVIDENCE IT WILL BE ASSUMED THE LAWS ARE THE SAME AS THOSE OF IDAHO. 
(MALONEY V. WINSTON BROS. CO., 18 IDAHO 740, 757, 762; 111 P. 1080,
1086; DOUGLAS V. DOUGLAS, 22 IDAHO 336, 343; 125 P. 796; MECHANICS &
METALS NAT. BANK V. PINGREE, 40 IDAHO 118, 129; 232 P. 5; STATE V.
MARTINEZ, 43 IDAHO 180, 192; 59 P.2D 1087; KLEINSCHMIDT V. SCRIBNER, 54
IDAHO 185, 189; 30 P.2D 362).  WHILE NONE OF THESE CASES INVOLVED A
STIPULATION, THE DECISION OF THE SUPREME COURT OF IDAHO (57 IDAHO 10;
59 P.2D 1087) DECLARES THE LAW OF THAT JURISDICTION.  IT FOLLOWS FROM
THE IDAHO COURT'S REFUSAL TO LOOK INTO THE STATUTES OF WASHINGTON THAT
THE JURISDICTION OF THE WASHINGTON COURT WAS PRESUMED TO BE GOVERNED BY
IDAHO LAW.  UNDER PROPER PROOF, THE IDAHO COURT WOULD HAVE BEEN
COMPELLED TO EXAMINE THE JURISDICTION OF THE WASHINGTON COURT UNDER
WASHINGTON LAW. 

FN22  OLD WAYNE LIFE ASSN. V. MCDONOUGH, 204 U.S. 8, 15; THOMPSON V.
WHITMAN, 18 WALL.  457, 468; ADAM V. SAENGER, 303 U.S. 59, 62. 

FN23  CHICAGO LIFE INS. CO. V. CHERRY, 244 U.S. 25, 30; STOLL V.
GOTTLIEB, 305 U.S. 165, 172; ROCHE V. MCDONALD, 275 U.S. 449, 454. 

FN24  BALDWIN V. TRAVELING MEN'S ASSN., 283 U.S. 522, 525. 

FN25  AMERICAN SURETY CO. V. BALDWIN, 287 U.S. 156, 166. 

FN26  STOLL V. GOTTLIEB, SUPRA, NOTE 23, 172. 

NO DECISION OR STATUTE RELATIVE TO THE REEXAMINATION OF THE DECREE OR
JUDGMENT OF AN IDAHO COURT ON A CONTESTED ISSUE OF JURISDICTION HAS
BEEN FOUND OR CALLED TO OUR ATTENTION.  IT IS CONCLUDED THAT THE RULE
HERE EXPRESSED STATES TOO THE LAW OF IDAHO. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















PALMER V. MASSACHUSETTS, 308 U.S. 79 


NO. 7.  ARGUED OCTOBER 11, 1939.  - DECIDED NOVEMBER 6, 1939.  - 101
F.2D 48, AFFIRMED. 


1.  CREDITORS OF A RAILROAD, DEBTOR IN A REORGANIZATION PROCEEDING
UNDER SEC. 77 OF THE BANKRUPTCY ACT, PETITIONED THE DISTRICT COURT FOR
AN ORDER DIRECTING THE REORGANIZATION TRUSTEES TO DISCONTINUE CERTAIN
LOCAL TRANSPORTATION SERVICE.  THE TRUSTEES HAD PREVIOUSLY APPLIED TO
THE STATE COMMISSION FOR AUTHORITY TO DISCONTINUE THE SAME SERVICE,
WHICH APPLICATION ACCORDED WITH REQUIREMENTS OF THE STATE LAW AND WAS
THEN PENDING AND BEING GIVEN ORDERLY HEARING AND CONSIDERATION.  HELD,
THE DISTRICT COURT WAS WITHOUT POWER TO ORDER DISCONTINUANCE OF THE
SERVICE.  P. 88. 

2.  IN THE LIGHT OF THE HISTORY OF THE LEGISLATION, SUCH POWER IN THE
DISTRICT COURT MAY NOT BE IMPLIED FROM SEC. 77(A), GRANTING TO THE
BANKRUPTCY COURT "EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY
WHEREVER LOCATED," OR SEC. 77(C)(2), PERMITTING THE TRUSTEES, SUBJECT
TO THE CONTROL OF THE COURT, "TO OPERATE THE BUSINESS OF THE DEBTOR." 
P. 85. 

PALMER ET AL., TRUSTEES, V. MASSACHUSETTS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 306 U.S. 627, TO REVIEW THE REVERSAL OF AN ORDER OF THE
DISTRICT COURT AUTHORIZING THE TRUSTEES OF A RAILROAD IN REORGANIZATION
PROCEEDINGS TO DISCONTINUE CERTAIN LOCAL TRANSPORTATION SERVICE. 

THE BANKRUPTCY COURT MAY DIRECT ITS TRUSTEES TO DISCONTINUE
INTRASTATE PASSENGER SERVICE, IRRESPECTIVE OF AUTHORIZATION BY THE
STATE REGULATORY BODY NORMALLY HAVING JURISDICTION, IN ORDER TO
PRESERVE AND REHABILITATE THE PROPERTY OF AN INTERSTATE RAILROAD, AND
TO MAKE AND EFFECT A PLAN OF REORGANIZATION.  CONTINENTAL BANK V. ROCK
ISLAND RY., 294 U.S. 648, 676.  BANKRUPTCY ACT, SEC. 77(A)(C)(1), SEC.
2, SEC. 77(O)(F). 

WHEN CONGRESS OCCUPIES THE FIELD IT PRECLUDES ALL INCONSISTENT STATE
REGULATION, UNLESS SPECIFIC RESERVATIONS OF STATE POWERS ARE MADE. 
COLORADO V. UNITED STATES, 271 U.S. 153, 162-166; TRANSIT COMMISSION V.
UNITED STATES, 284 U.S. 360; AND SEE NEW YORK V. UNITED STATES, 257
U.S. 360; AMERICAN BRAKE SHOE & FOUNDRY CO. V. I.R.T., 10 F.SUPP.  512;
AFFIRMED, 76 F.2D 1002, CERT. DENIED, NEW YORK CITY V. MURRAY, 295 U.S.
760. 

THE POWER OF AN EQUITY COURT TO PROTECT PROPERTY IN ITS CUSTODY, IN
RE TYLER, 149 U.S. 164; WABASH RAILROAD V. ADELBERT COLLEGE, 208 U.S.
94, WAS RECOGNIZED IN CASES UNDER THE BANKRUPTCY ACT PRIOR TO THE
ENACTMENT OF SEC. 77.  MURPHY V. HOFMAN CO., 211 U.S. 562; ISAACS V.
HOBBS TIE & T. CO., 282 U.S. 734.  COMPARE EX PARTE BALDWIN, 291 U.S.
610; CONTINENTAL BANK V. ROCK ISLAND RY., 294 U.S. 648; BOARD OF
DIRECTORS ST. FRANCIS LEVEE DIST. V. KURN, 91 F.2D 118; 98 F.2D 394;
CRAWFORD V. DULUTH STREET RY. CO., 60 F. 212; IOWA V. OLD COLONY TRUST
CO., 215 F. 307. 

THE LEGISLATIVE HISTORY OF SEC. 77 SHOWS ITS BROAD PURPOSE TO
FACILITATE AND EXPEDITE INTERSTATE RAILROAD REORGANIZATIONS.  CONGRESS
CONFERRED JURISDICTION UPON THE COURT, FREE FROM STATE LAWS AND STATE
REGULATIONS THAT INTERFERE WITH REORGANIZATION. 

R.G.W.R. CO., 23 F.SUPP.  298. 

A RAILROAD CAN NOT ABANDON THE PUBLIC SERVICE WHICH WAS THE CONDITION
UPON WHICH ITS FRANCHISES WERE GRANTED AND STILL RETAIN THEM. 

POWER TO PERMIT OR DENY ABANDONMENT OF SERVICE ON INTRASTATE LINES IS
RESERVED TO THE SEVERAL STATES IN THE ABSENCE OF FEDERAL LEGISLATION
DISPLACING THAT POWER.  THIS POWER IS CUSTOMARILY EXERCISED BY STATE
REGULATORY COMMISSIONS. 

EARLIER THAN SEC. 77, NO FEDERAL LEGISLATION DISPLACED THE STATES'
POWER TO PERMIT OR DENY PARTIAL ABANDONMENT OF SERVICE ON LINES
RETAINED BY THE RAILROADS, ALTHOUGH THE INTERSTATE COMMERCE COMMISSION
WAS EMPOWERED TO AUTHORIZE COMPLETE ABANDONMENT. 

RATHER THAN THE BANKRUPTCY COURT BE THE ARBITER OF CONFLICTING
INTERESTS OF THE RAILROAD AND THE PUBLIC, AND THAT PARTIAL ABANDONMENT
SHALL BE AUTHORIZED ONLY AS A PART OF THE REORGANIZATION PLAN, WITH THE
COMMISSION'S APPROVAL. 

FROM THEIR JURISDICTION TO DETERMINE WHAT SERVICES THE RAILROAD MAY
ABANDON, PENDING CONFIRMATION OF THE REORGANIZATION PLAN. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

OCTOBER 23, 1935, OPENED ANOTHER CHAPTER IN THE LONG HISTORY OF THE
VICISSITUDES OF THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY. 
FN1  BY FILING A PETITION FOR REORGANIZATION UNDER SEC. 77 OF THE
BANKRUPTCY ACT (47 STAT. 1474, AS AMENDED BY 49 STAT. 911 AND 49 STAT.
1969, 11 U.S.C. SEC. 205), THE NEW HAVEN INVOKED THE SHELTER OF THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT.  THERE IT
HAS SINCE REMAINED.  AN EPISODE IN THIS NEW CHAPTER, ALREADY FOUR YEARS
OLD, IS PRESENTED BY THIS CASE.  WE BROUGHT IT HERE, 306 U.S. 627,
BECAUSE IT RAISES IMPORTANT QUESTIONS UNDER THE RAILROAD BANKRUPTCY
LAW, PARTICULARLY WHERE IT INTERSECTS THE REGULATORY SYSTEMS OF THE
STATES.  THE DISTRICT COURT ASSUMED POWER TO SUPPLANT THE RELEVANT
AUTHORITY OF THE STATE - AN AUTHORITY WHICH, APART FROM PROCEEDINGS
UNDER SEC. 77, HAS NOT BEEN CONFERRED BY CONGRESS EITHER UPON THE
FEDERAL COURTS OR THE INTERSTATE COMMERCE COMMISSION.  THE CIRCUIT
COURT OF APPEALS, ONE JUDGE DISSENTING, REVERSED THE DISTRICT COURT,
CONVERSE V. MASSACHUSETTS, 101 F.2D 48. 

A SUMMARY OF THE FACTS WILL LAY BARE THE LEGAL ISSUES.  ON DECEMBER
28, 1937, THE BANKRUPTCY TRUSTEES OF THE NEW HAVEN, ACTING UNDER THE
REQUIREMENTS OF MASSACHUSETTS LAW,  FN2  APPLIED TO THAT COMMONWEALTH'S
DEPARTMENT OF PUBLIC UTILITIES FOR LEAVE TO ABANDON EIGHTY-EIGHT
PASSENGER STATIONS.  FN3  TWENTY-ONE HEARINGS WERE HELD BY THE
DEPARTMENT ON THE QUESTIONS RAISED BY THIS APPLICATION.  DURING THE
PENDENCY OF THESE HEARINGS AND BEFORE THE DEPARTMENT HAD TAKEN ANY
ACTION, THE PRESENT LITIGATION WAS INITIATED IN THE NEW HAVEN
BANKRUPTCY PROCEEDINGS BY CREDITORS OF THE DEBTOR FOR AN ORDER
DIRECTING THE TRUSTEES TO ABANDON THESE LOCAL SERVICES.  THE TRUSTEES
JOINED IN THE PRAYER, WHILE THE COMMONWEALTH DENIED THE JURISDICTION OF
THE DISTRICT COURT AND ASKED THAT THE PROCEEDINGS BEFORE THE DEPARTMENT
BE ALLOWED TO REACH FRUITION.  THE DISTRICT JUDGE RULED THAT SEC. 77
GAVE HIM THE RESPONSIBILITY OF DISPOSING OF THE PETITION ON ITS MERITS
AND, HAVING TAKEN EVIDENCE, GAVE THE VERY RELIEF FOR WHICH THE TRUSTEES
HAD APPLIED TO THE DEPARTMENT AND WHICH WAS STILL IN PROCESS OF ORDERLY
CONSIDERATION. 

PLAINLY ENOUGH THE DISTRICT COURT HAD NO POWER TO DEAL WITH A MATTER
IN THE KEEPING OF STATE AUTHORITIES UNLESS CONGRESS GAVE IT.  AND SO WE
HAVE ONE OF THOSE PROBLEMS IN THE READING OF A STATUTE WHEREIN MEANING
IS SOUGHT TO BE DERIVED NOT FROM SPECIFIC LANGUAGE BUT BY FASHIONING A
MOSAIC OF SIGNIFICANCE OUT OF THE INNUENDOES OF DISJOINTED BITS OF A
STATUTE.  AT BEST THIS IS SUBTLE BUSINESS, CALLING FOR GREAT WARINESS
LEST WHAT PROFESSES TO BE MERE RENDERING BECOMES CREATION AND ATTEMPTED
INTERPRETATION OF LEGISLATION BECOMES LEGISLATION ITSELF.  ESPECIALLY
IS WARINESS ENJOINED WHEN THE PROBLEM OF CONSTRUCTION IMPLICATES ONE OF
THE RECURRING PHASES OF OUR FEDERALISM AND INVOLVES STRIKING A BALANCE
BETWEEN NATIONAL AND STATE AUTHORITY IN ONE OF THE MOST SENSITIVE AREAS
OF GOVERNMENT. 

TO BE SURE, IN RECENT YEARS CONGRESS HAS FROM TIME TO TIME EXERCISED
AUTHORITY OVER PURELY INTRASTATE ACTIVITIES OF AN INTERSTATE CARRIER
WHEN, IN THE JUDGMENT OF CONGRESS, AN INTERSTATE CARRIER CONSTITUTED,
AS A MATTER OF ECONOMIC FACT, A SINGLE ORGANISM AND COULD NOT
EFFECTIVELY BE REGULATED AS TO SOME OF ITS INTERSTATE PHASES WITHOUT
DRAWING LOCAL BUSINESS WITHIN THE REGULATED SPHERE.  FN4  BUT SUCH
ABSORPTION OF STATE AUTHORITY IS A DELICATE EXERCISE OF LEGISLATIVE
POLICY IN ACHIEVING A WISE ACCOMMODATION BETWEEN THE NEEDS OF CENTRAL
CONTROL AND THE LIVELY MAINTENANCE OF LOCAL INSTITUTIONS.  FN5
THEREFORE, IN CONSTRUING LEGISLATION THIS COURT HAS DISFAVORED INROADS
BY IMPLICATION ON STATE AUTHORITY AND RESOLUTELY CONFINED RESTRICTIONS
UPON THE TRADITIONAL POWER OF STATES TO REGULATE THEIR LOCAL
TRANSPORTATION TO THE PLAIN MANDATE OF CONGRESS.  MINNESOTA RATE CASES,
230 U.S. 352; CF. KELLY V. WASHINGTON EX REL. FOSS CO., 302 U.S. 1. 

THE DEPENDENCE OF LOCAL COMMUNITIES ON LOCAL RAILROAD SERVICES HAS
FOR DECADES PLACED CONTROL OVER THEIR CURTAILMENT WITHIN THE REGULATORY
AUTHORITIES OF THE STATES.  FN6  EVEN WHEN THE TRANSPORTATION ACT IN
1920 GAVE THE INTERSTATE COMMERCE COMMISSION POWER TO PERMIT
ABANDONMENT OF LOCAL LINES WHEN THE OVER-RIDING INTERESTS OF INTERSTATE
COMMERCE REQUIRED IT, COLORADO V. UNITED STATES, 271 U.S. 153,  FN7
THIS WAS NOT DEEMED TO CONFER UPON THE COMMISSION JURISDICTION OVER
CURTAILMENTS OF SERVICE AND PARTIAL DISCONTINUANCES.  PUBLIC
CONVENIENCE APPLICATION OF KANSAS CITY SOUTHERN RY., 94 I.C.C. 691; SEE
PROPOSED ABANDONMENT, MORRIS & ESSEX CO., 175 I.C.C. 49.  IF THIS OLD
AND FAMILIAR POWER OF THE STATES WAS WITHDRAWN WHEN CONGRESS GAVE
DISTRICT COURTS BANKRUPTCY POWERS OVER RAILROADS, WE OUGHT TO FIND
LANGUAGE FITTING FOR SO DRASTIC A CHANGE. 

WE ARE ASKED TO FIND IT IN SEC. 77(A) GRANTING TO THE BANKRUPTCY
COURT "EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY WHEREVER
LOCATED,"  FN8  AND IN SEC. 77(C)(2) PERMITTING THE TRUSTEES, SUBJECT
TO THE COURT'S CONTROL, "TO OPERATE THE BUSINESS OF THE DEBTOR."  FN9
IN ORDER TO EXPEDITE THE REORGANIZATION OF INSOLVENT RAILROADS, SUCH
BROAD AND GENERAL PROVISIONS DOUBTLESS SUFFICE TO CONFER UPON THE
DISTRICT COURTS POWER APPROPRIATE FOR ADJUSTING PROPERTY RIGHTS IN THE
RAILROAD DEBTOR'S ESTATE AND, AS TO SUCH RIGHTS, BEYOND THAT IN
ORDINARY BANKRUPTCY PROCEEDINGS.  CF. CONTINENTAL BANK V. CHICAGO, R.I.
& P. RY. CO., 294 U.S. 648.  BUT THE DISTRICT COURT CLAIMED POWER OVER
THE CARRIER'S RELATION TO THE STATE.  IT HAS BECOME THE SETTLED SOCIAL
POLICY BOTH OF THE STATES AND THE NATION TO ENTRUST THE TYPE OF PUBLIC
INTEREST HERE IN QUESTION TO EXPERT ADMINISTRATIVE AGENCIES BECAUSE OF
"THE NOTION," AS JUDGE LEARNED HAND POINTED OUT BELOW, "THAT A JUDGE IS
NOT QUALIFIED FOR SUCH DUTIES."  FN10 

NOT ONLY IS THERE NO SPECIFIC GRANT OF THE POWER WHICH THE DISTRICT
COURT EXERCISED, BUT THE HISTORIC BACKGROUND OF SEC. 77, THE
CONSIDERATIONS GOVERNING CONGRESS IN ITS ENACTMENT, AND THE SCHEME OF
THE LEGISLATION AS DISCLOSED BY ITS SPECIFIC PROVISIONS REJECT THE
CLAIM.  UNTIL THE AMENDMENT OF MARCH 3, 1933, RAILROADS WERE OUTSIDE
THE BANKRUPTCY ACT.  FN11  BUT THE LONG HISTORY OF FEDERAL RAILROAD
RECEIVERSHIPS, WITH THE CONFLICTS THEY FREQUENTLY ENGENDERED BETWEEN
THE FEDERAL COURTS AND THE PUBLIC, LEFT AN ENDURING CONVICTION THAT A
RAILROAD WAS NOT LIKE AN ORDINARY INSOLVENT ESTATE.  FN12  ALSO AN
INSOLVENT RAILROAD, IT WAS REALIZED, REQUIRED THE OVERSIGHT OF AGENCIES
SPECIALLY CHARGED WITH THE PUBLIC INTEREST REPRESENTED BY THE
TRANSPORTATION SYSTEM.  INDEED, WHEN, IN THE DEPTH OF THE DEPRESSION,
LEGISLATION WAS DEEMED URGENT TO MEET THE GRAVE CRISIS CONFRONTING THE
RAILROADS, THERE WAS A STRONG SENTIMENT IN CONGRESS TO WITHDRAW FROM
THE COURTS CONTROL OVER INSOLVENT RAILROADS AND LODGE IT WITH THE
INTERSTATE COMMERCE COMMISSION.  FN13  CONGRESS STOPPED SHORT OF THIS
REMEDY.  BUT THE WHOLE SCHEME OF SEC. 77 LEAVES NO DOUBT THAT CONGRESS
DID NOT MEAN TO GRANT TO THE DISTRICT COURTS THE SAME SCOPE AS TO
BANKRUPT ROADS THAT THEY MAY HAVE IN DEALING WITH OTHER BANKRUPT
ESTATES. 

THE JUDICIAL PROCESS IN BANKRUPTCY PROCEEDINGS UNDER SEC. 77 IS, AS
IT WERE, BRIGADED WITH THE ADMINISTRATIVE PROCESS OF THE COMMISSION. 
FROM THE REQUIREMENT OF RATIFICATION BY THE COMMISSION OF THE TRUSTEES
APPOINTED BY THE COURT TO THE COMMISSION'S APPROVAL OF THE COURT'S PLAN
OF REORGANIZATION THE AUTHORITY OF THE COURT IS INTERTWINED WITH THAT
OF THE COMMISSION.  FN14  THUS, IN SEC. 77(C) AND SEC. 77(O) THE POWER
OF THE DISTRICT COURTS TO PERMIT ABANDONMENTS IS SPECIFICALLY
CONDITIONED ON AUTHORIZATION OF SUCH ABANDONMENTS BY THE COMMISSION. 
IN VIEW OF THE JUDICIAL HISTORY OF RAILROAD RECEIVERSHIPS AND THE
EXTENT TO WHICH SEC. 77 MADE JUDICIAL ACTION DEPENDENT ON APPROVAL BY
THE INTERSTATE COMMERCE COMMISSION, IT WOULD VIOLATE THE TRADITIONAL
RESPECT OF CONGRESS FOR LOCAL INTERESTS AND FOR THE ADMINISTRATIVE
PROCESS TO IMPLY POWER IN A SINGLE JUDGE TO DISREGARD STATE LAW OVER
LOCAL ACTIVITIES OF A CARRIER THE GOVERNANCE OF WHICH CONGRESS HAS
WITHHELD EVEN FROM THE INTERSTATE COMMERCE COMMISSION, EXCEPT AS PART
OF A COMPLETE PLAN OF REORGANIZATION FOR AN INSOLVENT ROAD.  FN15
ABOUT A FOURTH OF THE RAILROAD MILEAGE OF THE COUNTRY IS NOW IN
BANKRUPTCY.  FN16  THE PETITIONERS ASK US TO SAY THAT DISTRICT JUDGES
IN TWENTY-NINE STATES HAVE EFFECTIVE POWER, IN VIEW OF THE WEIGHT WHICH
OFTEN ATTACHES TO FINDINGS AT NISI PRIUS, TO SET ASIDE THE REGULATORY
SYSTEMS OF THESE TWENTY-NINE STATES WITH ALL THE CONSEQUENCES IMPLIED
FOR THOSE COMMUNITIES.  CONGRESS GAVE NO SUCH POWER. 

ARGUMENTS OF CONVENIENCE AGAINST DENIAL OF THE EXISTENCE OF THIS
POWER HAVE BEEN STRONGLY PRESSED UPON US.  CONTINUANCE OF STATE CONTROL
OVER THESE LOCAL PASSENGER SERVICES WILL, IT IS URGED, IMPAIR THE
BANKRUPTCY COURT'S POWER TO FORMULATE A REORGANIZATION PLAN FOR THE
APPROVAL OF THE INTERSTATE COMMERCE COMMISSION.  SUCH EMBARRASSMENTS,
DUE EITHER TO THE TIME REQUIRED FOR EXHAUSTION OF THE ORDERLY STATE
PROCEDURE OR TO THE FINANCIAL LOSSES THAT MAY BE INVOLVED IN THE
CONTINUANCE OF LOCAL SERVICES UNTIL DULY TERMINATED BY THE STATE, MAY
EASILY BE EXAGGERATED.  IT IS NOT WITHOUT SIGNIFICANCE THAT AFTER FOUR
YEARS NO REORGANIZATION PLAN FOR THE NEW HAVEN HAS YET BEEN EVOLVED. 
PERHAPS IT IS NO LESS TRUE THAT AMENABILITY TO STATE LAWS WILL SERVE AS
INCENTIVE TO THE FORMULATION OF REORGANIZATION PLANS WHICH, ON APPROVAL
BY THE COMMISSION, DO SUPPLANT STATE AUTHORITY.  BUT, IN ANY EVENT,
AGAINST POSSIBLE INCONVENIENCES DUE TO OBSERVANCE OF STATE LAW WE MUST
BALANCE THE FEELINGS OF LOCAL COMMUNITIES, THE DISLOCATION OF THEIR
HABITS AND THE OVER-RIDING OF EXPERT STATE AGENCIES BY A SINGLE JUDGE
SITTING, AS IN THIS CASE, IN ANOTHER STATE, REMOVED FROM FAMILIARITY
WITH LOCAL PROBLEMS, AND NOT NECESSARILY GIFTED WITH STATESMAN-LIKE
IMAGINATION THAT TRANSCENDS THE WISDOM OF LOCAL ATTACHMENTS.    OTHER
ARGUMENTS, DRAWN FROM THE LEGISLATIVE HISTORY OF SEC. 77 AND FROM THE
GENERAL EQUITY POWERS CONFERRED BY SEC. 77(A) AND SEC. (77)(C)(2),
FN17  WERE URGED BUT WE DEEM IT UNNECESSARY TO SAY MORE. 

THE DECREE BELOW IS AFFIRMED. 

FN1  BRANDEIS, "FINANCIAL CONDITION OF THE NEW YORK, NEW HAVEN AND
HARTFORD RAILROAD CO."  (1907); THE NEW ENGLAND INVESTIGATION, 27
I.C.C. 560(1913); IN RE FINANCIAL TRANSACTIONS OF THE NEW YORK, NEW
HAVEN AND HARTFORD RAILROAD CO., 31 I.C.C. 32(1914); REPORT OF THE
JOINT NEW ENGLAND RAILROAD COMMITTEE TO THE GOVERNORS OF THE NEW
ENGLAND STATES.  (STORROW REPORT.)(1923.) 

FN2  MASS. GEN. LAWS (TER.  ED.)  C. 160, SEC. 128, PROVIDES:  "A
RAILROAD CORPORATION WHICH HAS ESTABLISHED AND MAINTAINED A PASSENGER
STATION THROUGHOUT THE YEAR FOR FIVE CONSECUTIVE YEARS AT ANY POINT
UPON ITS RAILROAD SHALL NOT ABANDON SUCH STATION  ...  NOR
SUBSTANTIALLY DIMINISH THE ACCOMMODATION FURNISHED BY THE STOPPING OF
TRAINS THEREAT AS COMPARED WITH THAT FURNISHED AT OTHER STATIONS ON THE
SAME RAILROAD, EXCEPT WITH THE WRITTEN APPROVAL OF THE DEPARTMENT (OF
PUBLIC UTILITIES) AFTER NOTICE POSTED IN AND ON SAID STATION FOR A
PERIOD OF THIRTY DAYS IMMEDIATELY PRECEDING A PUBLIC HEARING THEREON." 

SEE ALSO MASS. GEN. LAWS (TER.  ED.)  C. 159, SEC. 16, VESTING
GENERAL CONTROL OVER INTRASTATE RAILWAY SERVICES IN THE DEPARTMENT OF
PUBLIC UTILITIES. 

FN3  THE APPLICATION ALSO SOUGHT PERMISSION TO EFFECT CERTAIN OTHER
CURTAILMENTS OF PASSENGER SERVICE.  SOME OF THE STATIONS WERE SITUATED
ON THE LINES OF THE NEW HAVEN, MOST OF THEM ON THE LINES OF THE OLD
COLONY RAILROAD, AND SOME ON THE LINES OF THE BOSTON AND PROVIDENCE
RAILROAD. 

THE NEW HAVEN IN 1893 LEASED FOR 99 YEARS ALL THE PROPERTIES OF THE
OLD COLONY, INCLUDING THE BOSTON AND PROVIDENCE LINES WHICH THE OLD
COLONY HAD LEASED FOR 99 YEARS IN 1888.  ON JUNE 1, 1936, THE NEW HAVEN
TRUSTEES DISAFFIRMED, AS THEY WERE EMPOWERED TO DO UNDER SEC. 77, THE
OLD COLONY LEASE.  AFTER THE DISAFFIRMANCE THE NEW HAVEN OPERATED THE
LINES ON ACCOUNT OF THE OLD COLONY.  ON JUNE 3, 1936, THE OLD COLONY
ITSELF COMMENCED PROCEEDINGS UNDER SEC. 77.  THE TRUSTEES OF THE NEW
HAVEN WERE THEN APPOINTED TRUSTEES FOR THE OLD COLONY. 

FN4  E.G., THE SHREVEPORT CASES, 234 U.S. 342; RAILROAD COMM'N OF
WISCONSIN V. CHICAGO, B. & Q.R. CO., 257 U.S. 563.  SEE I SHARFMAN,
"THE INTERSTATE COMMERCE COMMISSION," PP. 82-86, 219-225.  FOR THE
CAREFUL OBSERVANCE OF STATE INTERESTS IN APPLYING THE SHREVEPORT
DOCTRINE, SEE ILLINOIS CENTRAL R. CO. V. PUBLIC UTILITIES COMM'N, 245
U.S. 493 AND FLORIDA V. UNITED STATES, 282 U.S. 194. 

FN5  SEE CLARK, "THE RISE OF A NEW FEDERALISM," PASSIM. 

FN6  THE CONTROLLING MASSACHUSETTS STATUTE HAS BEEN IN FORCE SINCE
1911.  BUT MASSACHUSETTS HAS EXERCISED CONTROL OVER ITS RAILROADS
THROUGH ADMINISTRATIVE MACHINERY EVER SINCE THE FAMOUS ADAMS COMMISSION
IN 1869.  SEE FIRST ANNUAL REPORT, BOARD OF RAILROAD COMMISSIONERS OF
MASSACHUSETTS, PUBLIC DOCUMENT NO. 40, PP. 3-12(1870); HADLEY,
"RAILROAD TRANSPORTATION" (1885 ED.)  PP. 136-139. 

FN7  FOR ILLUSTRATION OF THE SCRUPULOUS REGARD FOR LOCAL AUTHORITY
AND LOCAL INTERESTS SHOWN BY THE COMMISSION IN THE EXERCISE OF ITS
CONTROL OVER ABANDONMENTS, SEE II SHARFMAN, "THE INTERSTATE COMMERCE
COMMISSION," PP. 264-269. 

FN8  SECTION 77(A), 47 STAT. 1474, AS AMENDED IN 1935 BY 49 STAT.
911, 11 U.S.C. SEC. 205(A) PROVIDES SO FAR AS HERE RELEVANT:  "IF THE
PETITION IS SO APPROVED, THE COURT IN WHICH SUCH ORDER IS ENTERED
SHALL, DURING THE PENDENCY OF THE PROCEEDINGS UNDER THIS SECTION AND
FOR THE PURPOSES THEREOF, HAVE EXCLUSIVE JURISDICTION OF THE DEBTOR AND
ITS PROPERTY WHEREVER LOCATED, AND SHALL HAVE AND MAY EXERCISE IN
ADDITION TO THE POWERS CONFERRED BY THIS SECTION ALL THE POWERS, NOT
INCONSISTENT WITH THIS SECTION, WHICH A FEDERAL COURT WOULD HAVE HAD IF
IT HAD APPOINTED A RECEIVER IN EQUITY OF THE PROPERTY OF THE DEBTOR FOR
ANY PURPOSE." 

FN9  "THE TRUSTEE OR TRUSTEES SO APPOINTED  ...  SHALL HAVE  ...
SUBJECT TO THE CONTROL OF THE JUDGE AND THE JURISDICTION OF THE
COMMISSION AS PROVIDED  ...  THE POWER TO OPERATE THE BUSINESS OF THE
DEBTOR."  SEC. 77(C)(2), 47 STAT. 1475, AS AMENDED BY 49 STAT. 914-15,
11 U.S.C. SEC. 205(C)(2). 

FN10  SEE CONVERSE V. MASSACHUSETTS, 101 F.2D 48, AT 51. 

FN11  SEE H. REP. NO. 1897, 72D CONGRESS, 2D SESSION, P. 5. 

FN12  SEE CHAPTER XXII "RAILROAD RECEIVERSHIPS" IN I GRESHAM, "THE
LIFE OF WALTER QUINTIN GRESHAM," PP. 366-378; JACOBS "THE INTERSTATE
COMMERCE COMMISSION AND INTERSTATE RAILROAD REORGANIZATIONS," 45 HARV.
L. REV. 855; LOWENTHAL "THE INVESTOR PAYS."  SEE ALSO REMARKS BY
SENATOR WHEELER, AS CHAIRMAN OF THE COMMITTEE ON INTERSTATE COMMERCE,
INTRODUCING THE AMENDMENT OF 1935, 79 CONG. REC., PT. 13, P. 13764. 

FN13  SEE 76 CONG. REC., PT. 5, P. 5358(REMARKS OF REPRESENTATIVE
LAGUARDIA):  "I WOULD LIKE TO SEE THE ENTIRE REORGANIZATION TAKEN FROM
THE COURTS AND PLACED IN THE INTERSTATE COMMERCE COMMISSION."  THE
SUGGESTION FOR ADMINISTRATIVE RECEIVERSHIPS ORIGINATED WITH THE LATE
CHIEF JUSTICE TAFT, WHEN CIRCUIT JUDGE, IN AN ADDRESS BEFORE THE
AMERICAN BAR ASSOCIATION.  TAFT, "RECENT CRITICISM OF THE FEDERAL
JUDICIARY," REPORTS OF THE AMERICAN BAR ASSOCIATION (1895) 237, 264. 

FN14  SECTION 77(C)(1) REQUIRES THE APPOINTMENT OF TRUSTEES TO BE
RATIFIED BY THE COMMISSION; SEC. 77(C)(2) GIVES THE COMMISSION
SUPERVISION OVER THE COMPENSATION PAID TO TRUSTEES AND THEIR COUNSEL;
SEC. 77(C)(3) PERMITS THE ISSUANCE OF TRUSTEES' CERTIFICATES ONLY WITH
THE COMMISSION'S APPROVAL; SEC. 77(C)(9) PERMITS THE COMMISSION, ON
REQUEST OF THE COURT, TO INVESTIGATE FACTS PERTAINING TO MISMANAGEMENT
OF THE DEBTOR; SEC. 77(C)(10) EMPOWERS THE COMMISSION TO SET UP
ACCOUNTS FOR THE ALLOCATION OF EARNINGS AMONG THE VARIOUS PORTIONS OF
THE DEBTOR'S LINES; SEC. 77(C)(11) EMPOWERS THE COMMISSION TO FILE
REPORTS AS TO THE DEBTOR'S PROPERTY, PROSPECTIVE EARNINGS, ETC., AND
GIVES TO THE FACTS STATED IN SUCH REPORTS A PRESUMPTION OF CORRECTNESS;
SEC. 77(C)(12) GIVES THE COMMISSION SUPERVISION OVER ALLOWANCES FOR THE
EXPENSES OF VARIOUS PARTIES IN INTEREST IN CONNECTION WITH THE
REORGANIZATION PROCEEDINGS; SECS. 77(D) AND 77(E) GIVE TO THE
COMMISSION CONTROL OVER ANY PROPOSED PLAN OF REORGANIZATION; SEC. 77(P)
GIVES TO THE COMMISSION CONTROL OVER THE SOLICITATION OF PROXIES OR
DEPOSIT AGREEMENTS. 

SEE ALSO H. REP. NO. 1897, 72D CONGRESS, 2D SESSION, PP. 5-6; H. REP.
NO. 1283, 74TH CONGRESS, 1ST SESSION, PP. 3-5; S. REP. NO. 1336, 74TH
CONG., 1ST SESSION, PP. 4-6; REPORT, FEDERAL COORDINATOR OF
TRANSPORTATION, 1934, H. DOC. NO. 89, 74TH CONG., 1ST SESSION, PP. 100
101; 76 CONG. REC., PT. 5, PP. 5108-5110; 79 CONG. REC., PT. 12, P.
13301, PT. 13, PP. 13764, 13767. 

FN15  "UPON CONFIRMATION OF THE PLAN, THE DEBTOR AND ANY OTHER
CORPORATION OR CORPORATIONS ORGANIZED OR TO BE ORGANIZED FOR THE
PURPOSE OF CARRYING OUT THE PLAN, SHALL HAVE FULL POWER AND AUTHORITY
TO, AND SHALL PUT INTO EFFECT AND CARRY OUT THE PLAN AND THE ORDERS OF
THE JUDGE RELATIVE THERETO  ...  THE LAWS OF ANY STATE OR THE DECISION
OR ORDER OF ANY STATE AUTHORITY TO THE CONTRARY NOTWITHSTANDING."  SEC.
77(F). 

THE RECORDS OF THE INTERSTATE COMMERCE COMMISSION DISCLOSE THAT EIGHT
PLANS OF REORGANIZATION HAVE THUS FAR BEEN FILED WITH THE DISTRICT
COURT IN THE NEW HAVEN PROCEEDINGS AND TRANSMITTED TO THE INTERSTATE
COMMERCE COMMISSION.  PROCEEDINGS BEFORE THE COMMISSION HAD PROGRESSED
TO THE POINT WHERE AN EXAMINER'S REPORT WAS FILED; BUT THE REPORT WAS
WITHDRAWN FOR FURTHER HEARINGS.  THE PRESENT RECORD FAILS TO SHOW WHAT,
IF ANY, DISPOSITION OF THE OLD COLONY LINES ANY OF THESE PLANS PROPOSED
TO MAKE. 

FN16  ON OCTOBER 23, 1939, THERE WERE 61,292.69 MILES OF RAILROAD IN
BANKRUPTCY PROCEEDINGS UNDER SEC. 77.  THIS MILEAGE INCLUDES LINES IN
29 STATES. 

FN17  IN RE TYLER, 149 U.S. 164, AND OTHER DECISIONS OF THIS COURT
CITED BY PETITIONERS DEAL WITH ATTEMPTS AT "PHYSICAL INVASION" OF THE
PROPERTIES HELD IN THE CUSTODY OF A FEDERAL COURT.  SEE 149 U.S. AT
182.  SECTION 65 OF THE JUDICIAL CODE (36 STAT. 1104, 28 U.S.C. SEC.
124) DECISIVELY INDICATES THAT CONGRESS DID NOT INTEND THAT THOSE WHO
OPERATE A BUSINESS UNDER THE CONTROL OF A FEDERAL COURT SHOULD BE
IMMUNE FROM THE REGULATORY AUTHORITY OF THE SEVERAL STATES ANY MORE
THAN THEY ARE FROM THEIR TAXING POWER. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CAUSE. 
..END :
























HELVERING V. WILSHIRE OIL CO., 308 U.S. 90 


NO. 1.  ARGUED OCTOBER 9, 1939.  - DECIDED NOVEMBER 6, 1939.  - 95 F.2D
971, REVERSED. 


1.  AN OIL COMPANY WHICH PURSUANT TO A TREASURY REGULATION ELECTED
IRREVOCABLY TO DEDUCT DEVELOPMENT EXPENSES FROM GROSS INCOME IN
COMPUTING ITS TAXABLE NET INCOME RATHER THAN CHARGE THEM TO CAPITAL
ACCOUNT, AND WHICH MADE THIS ELECTION AT A TIME WHEN TREASURY PRACTICE
UNDER THE REVENUE ACTS OF 1921, SEC. 234(A)(9), AND 1924, SEC. 204(C),
REQUIRED THAT "OPERATIVE EXPENSES" BUT NOT EXPENSES OF DEVELOPMENT BE
DEDUCTED FROM GROSS INCOME IN COMPUTING "THE NET INCOME FROM THE
PROPERTY" WHICH LIMITS THE DEPLETION ALLOWANCE, HAS NO GROUND TO ATTACK
AS RETROACTIVE A LATER REGULATION MADE UNDER THE REVENUE ACT OF 1928,
SEC. 114(B)(3), AND LOOKING TO THE FUTURE, WHICH REQUIRES THAT
DEVELOPMENT, AS WELL AS OPERATIVE, EXPENSES BE DEDUCTED IN THE
COMPUTATION.  P. 97. 

TAX STATUTES AND REGULATIONS ARE SUBJECT TO CHANGE.  THE TAXPAYER IN
MAKING ITS ELECTION TOOK THE RISK THAT THE METHOD OF TREATING DEPLETION
MIGHT BE ALTERED BY STATUTE OR AUTHORIZED REGULATION. 

2.  THE CLAIM THAT IT WAS INEQUITABLE IN THE PRESENT CASE TO ALTER
THE REGULATIONS IN THE MANNER ABOVE DESCRIBED AFTER THE TAXPAYER HAD
MADE ITS IRREVOCABLE ELECTION IN ITS RETURN FOR THE YEAR 1925, CAN NOT
BE ALLOWED IN VIEW OF THE FACT THAT IN 1927, AFTER THE BASIS OF
DEPLETION HAD BEEN CHANGED BY THE ACT OF 1926 FROM A "DISCOVERY VALUE"
TO A PERCENTAGE BASIS, AN OPPORTUNITY TO MAKE A NEW ELECTION AS TO THE
TREATMENT OF DEVELOPMENT EXPENSES FOR TAXABLE PERIODS ENDING ON OR
AFTER JANUARY 1, 1925, WAS OFFERED BY TREASURY DECISION, OF WHICH THE
TAXPAYER FAILED TO TAKE ADVANTAGE.  P. 97. 

AN OPINION OF THE GENERAL COUNSEL OF THE TREASURY IS CONSIDERED IN
THIS CASE, IN CONNECTION WITH A TREASURY DECISION, AS AFFORDING NOTICE
THAT A CHANGE MIGHT BE MADE IN THE PRACTICE TOUCHING THE TREATMENT OF
DEVELOPMENT EXPENSES IN DETERMINING DEPLETION ALLOWANCES FOR OIL
WELLS. 

3.  THE TERM "NET INCOME FROM THE PROPERTY," USED IN THE REVENUE ACTS
OF 1921, 1924, 1926 AND 1928 AS A LIMITATION UPON ALLOWANCE FOR
DEPLETION OF MINES, INCLUDING OIL WELLS, WAS CONSTRUED BY THE TREASURY,
UNDER THE TWO EARLIER STATUTES, AS MEANING GROSS INCOME FROM THE
PROPERTY LESS "OPERATING EXPENSES," NOT INCLUDING DEVELOPMENT
EXPENSES.  UNDER THE ACT OF 1926, HOWEVER, (WHICH ADOPTED AN ARBITRARY
PERCENTAGE OF GROSS RECEIPTS, INSTEAD OF "DISCOVERY VALUE," AS THE
BASIS OF DEPLETION ALLOWANCES FOR OIL AND GAS WELLS) THE TREASURY
CHANGED ITS POLICY IN RESPECT OF SUCH DEDUCTIONS AND ALTERED ITS
REGULATION; AND UNDER THE ACT OF 1928, IT PROMULGATED A REGULATION
WHICH REQUIRED THAT DEVELOPMENT EXPENSES AS WELL AS OPERATING EXPENSES
BE DEDUCTED IN COMPUTING THE NET INCOME LIMITATION ON DEPLETION WHERE
THE TAXPAYER HAD ELECTED TO DEDUCT DEVELOPMENT EXPENSES IN COMPUTATION
OF TAXABLE NET INCOME.  HELD: 

(1)  THAT THE LEGISLATIVE APPROVAL OF THE EARLIER ADMINISTRATIVE
CONSTRUCTION OF THE TERM "NET INCOME FROM THE PROPERTY," IMPLIED FROM
THE REENACTMENT IN 1924 OF THE STATUTORY PROVISION OF 1921, CAN NOT BE
ATTRIBUTED ALSO TO THE REENACTMENT OF 1928, IN VIEW OF THE INTERVENING
CHANGE OF TREASURY CONSTRUCTION OF THE SAME STATUTORY LANGUAGE IN THE
ACT OF 1926.  P. 99. 

(2)  THE STATEMENT THAT ADMINISTRATIVE CONSTRUCTION RECEIVES
LEGISLATIVE APPROVAL BY REENACTMENT OF A STATUTORY PROVISION WITHOUT
MATERIAL CHANGE, APPLIES WHERE THE VALIDITY OF ADMINISTRATIVE ACTION
STANDING BY ITSELF MAY BE DUBIOUS OR WHERE AMBIGUITIES IN A STATUTE OR
RULES ARE RESOLVED BY REFERENCE TO ADMINISTRATIVE PRACTICE PRIOR TO
REENACTMENT OF A STATUTE; AND WHERE IT DOES NOT APPEAR THAT THE RULE OR
PRACTICE HAS BEEN CHANGED BY THE ADMINISTRATIVE AGENCY THROUGH EXERCISE
OF ITS CONTINUING RULE-MAKING POWER.  IT DOES NOT MEAN THAT A
REGULATION INTERPRETING A PROVISION OF ONE ACT BECOMES FROZEN INTO
ANOTHER ACT MERELY BY REENACTMENT OF THAT PROVISION, SO THAT THAT
ADMINISTRATIVE INTERPRETATION CAN NOT BE CHANGED PROSPECTIVELY THROUGH
EXERCISE OF APPROPRIATE RULE-MAKING POWERS.  P. 100. 

4.  THE POWER CONFERRED BY SEC. 23(1) OF THE REVENUE ACT OF 1928 TO
MAKE RULES AND REGULATIONS FOR THE COMPUTATION OF DEPLETION ALLOWANCES,
EXTENDS TO THE PERCENTAGE DEPLETION ALLOWANCE UNDER SEC. 114(B)(3), AND
INCLUDES ADMINISTRATIVE CONSTRUCTION OF THE AMBIGUOUS PHRASE "NET
INCOME FROM THE PROPERTY."  P. 101. 

RESTRICTIONS ON THAT POWER SHOULD NOT BE LIGHTLY IMPOSED WHERE THE
INCIDENCE OF SUCH RULES AS ARE PROMULGATED IS PROSPECTIVE ONLY. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. WILSHIRE OIL CO.,
INC.* 

*SEE NO. 2, HELVERING V. BANDINI PETROLEUM CO. AND NO. 3, HELVERING
V. WILSHIRE ANNEX OIL CO., POST, P. 512. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 306 U.S. 628, TO REVIEW AN AFFIRMANCE BY THE COURT BELOW
OF A DECISION OF THE BOARD OF TAX APPEALS (35 B.T.A. 450) REDUCING A
DEFICIENCY ASSESSMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER RESPONDENT, WILSHIRE OIL
COMPANY, INC., IN COMPUTING ITS NET INCOME FOR THE YEARS 1929 AND 1930
FOR THE PURPOSE OF APPLYING THE 50 PER CENT LIMITATION ON DEPLETION
ALLOWANCE UNDER SEC. 114(B)(3) OF THE REVENUE ACT OF 1928(45 STAT.
791), MAY REFUSE TO TAKE AS DEDUCTIONS CERTAIN DEVELOPMENT
EXPENDITURES,  FN1  WHERE IT HAS DEDUCTED THOSE DEVELOPMENT
EXPENDITURES IN COMPUTING ITS TAXABLE NET INCOME FOR THOSE YEARS.  THE
BOARD OF TAX APPEALS HELD FOR THE RESPONDENT (35 B.T.A. 450) AND THAT
DECISION WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS, ONE JUDGE
DISSENTING (95 F.2D 971).  BECAUSE OF THE IMPORTANCE OF THE PROBLEM OF
THE SCOPE OF THE COMMISSIONER'S RULE-MAKING POWER AND BECAUSE OF AN
ASSERTED CONFLICT OF THE DECISION BELOW WITH THE DECISION OF THE
CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT IN COMMISSIONER V.
F.H.E. OIL CO., 102 F.2D 596, WE GRANTED CERTIORARI. 

RESPONDENT IS ENGAGED IN THE BUSINESS OF PRODUCING OIL AND GAS FROM
ITS VARIOUS PROPERTIES.  IN COMPUTING TAXABLE NET INCOME IN ITS RETURNS
FOR 1929 AND 1930 RESPONDENT, PURSUANT TO THE REGULATIONS, DEDUCTED
DEVELOPMENT EXPENDITURES IN THE RESPECTIVE AMOUNTS OF $606,051.66 AND
$279,927.04.  BUT IT REFUSED TO MAKE THOSE DEDUCTIONS IN DETERMINING
ITS "NET INCOME  ...  FROM THE PROPERTY" FOR THE SAME YEARS, WHEN
COMPUTING ALLOWABLE DEPLETION UNDER SEC. 114(B)(3) OF THE REVENUE ACT
OF 1928.  FN2 

THAT SECTION PROVIDES: 

"IN THE CASE OF OIL AND GAS WELLS THE ALLOWANCE FOR DEPLETION SHALL
BE 27 1/2 PER CENTUM OF THE GROSS INCOME FROM THE PROPERTY DURING THE
TAXABLE YEAR.  SUCH ALLOWANCE SHALL NOT EXCEED 50 PER CENTUM OF THE NET
INCOME OF THE TAXPAYER (COMPUTED WITHOUT ALLOWANCE FOR DEPLETION) FROM
THE PROPERTY, EXCEPT THAT IN NO CASE SHALL THE DEPLETION ALLOWANCE BE
LESS THAN IT WOULD BE IF COMPUTED WITHOUT REFERENCE TO THIS
PARAGRAPH." 

BY VIRTUE OF SEC. 23 OF THE REVENUE ACT OF 1928 COMPANIES LIKE
RESPONDENT WERE ALLOWED AS DEDUCTIONS IN COMPUTING NET INCOME A
"REASONABLE ALLOWANCE FOR DEPLETION  ...  ACCORDING TO THE PECULIAR
CONDITIONS IN EACH CASE; SUCH REASONABLE ALLOWANCE IN ALL CASES TO BE
MADE UNDER RULES AND REGULATIONS TO BE PRESCRIBED BY THE COMMISSIONER,
WITH THE APPROVAL OF THE SECRETARY."  PURSUANT TO THAT RULE-MAKING
POWER THE PHRASE "NET INCOME OF THE TAXPAYER (COMPUTED WITHOUT
ALLOWANCE FOR DEPLETION)" AS USED IN SEC. 114(B)(3) WAS DEFINED BY
TREASURY REGULATIONS 74, ART. 221(I) PROMULGATED UNDER THE 1928 ACT AS
MEANING "GROSS INCOME FROM THE SALE OF OIL AND GAS" LESS CERTAIN
DEDUCTIONS INCLUDING "DEVELOPMENT EXPENSES (IF THE TAXPAYER HAS ELECTED
TO DEDUCT DEVELOPMENT EXPENSES)  ...  BUT EXCLUDING ANY ALLOWANCE FOR
DEPLETION."  FOR 1925 RESPONDENT, HAVING THE OPTION TO TREAT THESE
EXPENSES AS DEDUCTIONS FOR DEVELOPMENT EXPENSES OR AS CHARGES TO THE
CAPITAL ACCOUNT RETURNABLE THROUGH DEPLETION,  FN3  CHOSE THE FORMER. 

ON THESE FACTS IT WOULD SEEM THAT TREASURY REGULATIONS 74, ART.
221(I) WOULD REQUIRE RESPONDENT TO DEDUCT DEVELOPMENT EXPENSES IN
COMPUTING "NET INCOME" AS USED IN SEC. 114(B)(3), SINCE RESPONDENT FELL
CLEARLY WITHIN THE CLASS DESCRIBED THEREIN. 

BUT RESPONDENT CONTENDS THAT THESE REGULATIONS AS APPLIED TO IT FOR
THE TAXABLE YEARS IN QUESTION ARE INVALID.  ITS ARGUMENT RUNS AS
FOLLOWS:  (1)  THE PHRASE "NET INCOME  ...  FROM THE PROPERTY" PRESENT
IN SEC. 114(B)(3) ORIGINATED IN SEC. 234(A)(9) OF THE REVENUE ACT OF
1921(42 STAT. 227) AND WAS REENACTED WITHOUT CHANGE IN SEC. 204(C) OF
THE 1924 ACT (43 STAT. 253).  IT WAS ALSO CARRIED OVER INTO SEC.
204(C)(2) OF THE 1926 ACT (44 STAT. 9), WHEN CONGRESS ADOPTED THE
PRESENT SO-CALLED PERCENTAGE DEPLETION FORMULA.  SHORTLY AFTER THE
ENACTMENT OF THE REVENUE ACT OF 1921, TREASURY REGULATIONS WERE ISSUED
DEFINING NET "INCOME  ...  FROM THE PROPERTY" AS MEANING GROSS INCOME
FROM THE PROPERTY LESS "OPERATING EXPENSES."  FN4  A SIMILAR DEFINITION
WAS GIVEN IN THE TREASURY REGULATIONS ISSUED UNDER THE REVENUE ACT OF
1924.  FN5  THE ADMITTED TREASURY PRACTICE UNDER THOSE TWO ACTS WAS TO
PERMIT NET INCOME FROM THE PROPERTY TO BE COMPUTED WITHOUT REGARD TO
DEVELOPMENT EXPENDITURES.  HENCE, RESPONDENT ARGUES, THE MEANING OF THE
PHRASE "NET INCOME  ...  FROM THE PROPERTY" HAD ACQUIRED A PLAIN AND
DEFINITE MEANING, KNOWN TO THE CONGRESS; THUS WHEN THAT PHRASE WAS
REENACTED IN THE 1924 ACT, THE CONGRESS INTENDED IT TO HAVE THE MEANING
WHICH ADMINISTRATIVE PRACTICE HAD GIVEN IT.  AND, THE ARGUMENT
CONTINUES, THAT MEANING HAVING BEEN ADOPTED BY THE CONGRESS IN THE 1924
ACT, IT CLUNG TO THE SAME PHRASE IN THE 1926 ACT  FN6  AND IN THE 1928
ACT, ESPECIALLY SINCE THE COMMISSIONER PRIOR TO FEBRUARY 15, 1929  FN7
NEVER DID UNDERTAKE BY REGULATION OR DECISION TO GIVE THAT PHRASE A
MEANING DIFFERENT FROM THAT WHICH HAD BEEN CONSISTENTLY APPLIED UNDER
THE EARLIER ACTS. 

(2)  SECONDLY, RESPONDENT CONTENDS THAT THE FACT THAT IT DEDUCTED
DEVELOPMENT EXPENSES IN COMPUTING TAXABLE NET INCOME DOES NOT MEAN THAT
IT IS REQUIRED TO MAKE THE SAME DEDUCTIONS FOR THE "NET INCOME"
COMPUTATION UNDER SEC. 114(B)(3) FOR THE REASON THAT IT HAD NO FREE
CHOICE IN THE FIRST OF THESE COMPUTATIONS.  IN THAT CONNECTION IT
POINTS OUT THAT IT WAS REQUIRED TO MAKE THESE DEDUCTIONS FROM GROSS
INCOME BY REASON OF ITS ELECTION IN ITS 1925 RETURN TO TREAT THESE
EXPENSES AS DEDUCTIONS FOR DEVELOPMENT EXPENSES RATHER THAN AS CHARGES
TO CAPITAL ACCOUNT RETURNABLE THROUGH DEPLETION, AN ELECTION BINDING
FOR ALL SUBSEQUENT YEARS.  IN THAT POSTURE OF THE CASE IT ARGUES THAT
THE ATTEMPTED CHANGE IN THE REGULATIONS HERE INVOLVED HAS A RETROACTIVE
EFFECT, AS APPLIED TO IT, AND WITHDRAWS ONE OF THE IMPORTANT
INDUCEMENTS OFFERED BY THE COMMISSIONER IN CONNECTION WITH THE ELECTION
WHICH RESPONDENT MADE IN ITS 1925 RETURN. 

WE DO NOT THINK THAT RESPONDENT'S POSITION IS TENABLE. 

AS TO RESPONDENT'S CLAIM OF RETROACTIVITY, IT IS TRUE THAT THE
ELECTION MADE IN CONNECTION WITH ITS 1925 RETURN WAS KNOWN TO BE
BINDING FOR ALL SUBSEQUENT YEARS.  IT IS LIKEWISE TRUE THAT IT WAS MADE
AT A TIME WHEN TREASURY PRACTICE DID NOT REQUIRE DEDUCTION OF
DEVELOPMENT EXPENSES IN MAKING THE COMPUTATION UNDER SEC. 114(B)(3). 
BUT THAT IS NO BASIS FOR A CLAIM OF RETROACTIVITY.  TREASURY
REGULATIONS 74, ART. 221(I) WHICH REQUIRED THE DEDUCTION OF DEVELOPMENT
EXPENSES FOR THE PURPOSE OF THE COMPUTATION UNDER SEC. 114(B)(3) WERE
ISSUED FEBRUARY 15, 1929 UNDER THE 1928 ACT.  THESE REGULATIONS APPLIED
PROSPECTIVELY ONLY AND DID NOT PURPORT TO REACH BACK TO EARLIER YEARS
WHEN THE TAXPAYER RELIED ON A DIFFERENT RULE OR PRACTICE.  TAX STATUTES
AND TAX REGULATIONS NEVER HAVE BEEN STATIC.  EXPERIENCE, CHANGING
NEEDS, CHANGING PHILOSOPHIES INEVITABLY PRODUCE CONSTANT CHANGE IN
EACH.  ONE MAKING AN ELECTION IN THE 1925 RETURN TOOK THE RISK THAT THE
METHOD OF TREATMENT OF DEPLETION MIGHT BE CHANGED BY THE CONGRESS, OR,
WHERE POWER EXISTED, BY THE COMMISSIONER.  ANY OTHER CONCLUSION WOULD
MAKE THE APPLICATION OF CHANGES PURSUANT TO REGULATIONS, THOUGH
PROSPECTIVE, DEPENDENT ON FORTUITOUS CIRCUMSTANCES UNDER WHICH EACH
TAXPAYER MADE SUCH AN ELECTION.  RIGIDITY, AS WELL AS CONFUSION, IN
ADMINISTRATION OF TAX LAWS WOULD BE THE RESULT. 

BUT IN THIS CASE THERE IS ANOTHER ANSWER TO RESPONDENT'S CLAIM THAT
AN INEQUITY RESULTS BY CHANGING THE REGULATIONS AFTER IT HAD MADE ITS
ELECTION IN THE 1925 RETURN.  ON JUNE 18, 1927, THE COMMISSIONER, WITH
THE APPROVAL OF THE SECRETARY, ISSUED A TREASURY DECISION  FN8  STATING
THAT "IN VIEW OF THE CHANGE IN THE BASIS FOR DEPLETION PROVIDED BY THE
REVENUE ACT OF 1926, IN THE CASE OF OIL AND GAS WELLS, TAXPAYERS MAY
MAKE A NEW ELECTION AS TO THE TREATMENT" OF DEVELOPMENT EXPENDITURES
"FOR TAXABLE PERIODS ENDING ON OR AFTER JANUARY 1, 1925, BUT NOT LATER
THAN SIX MONTHS AFTER THE DATE OF THIS DECISION."  TAXPAYERS DESIRING
TO MAKE A NEW ELECTION WERE REQUIRED TO FILE AMENDED RETURNS FOR THE
TAXABLE PERIODS INVOLVED WITHIN SIX MONTHS FROM THE DATE OF THAT
DECISION.  THUS RESPONDENT, AFTER CONGRESS ADOPTED THE NEW PERCENTAGE
DEPLETION PROVISION, WAS AFFORDED AMPLE OPPORTUNITY TO MAKE A NEW
ELECTION.  THIS IT DID NOT DO.  TO BE SURE, THAT TREASURY DECISION
CONTAINED NO NOTICE OF ANY PROJECTED CHANGE IN THE MEANING OF "NET
INCOME  ...  FROM PROPERTY" AS USED IN SEC. 114(B)(3).  BUT IN
SEPTEMBER 1927 THERE ISSUED A GENERAL COUNSEL'S MEMORANDUM  FN9  IN
WHICH IT WAS STATED THAT THEREAFTER "IF A TAXPAYER ELECTS TO TREAT
DEVELOPMENT EXPENDITURES AS ORDINARY AND NECESSARY BUSINESS EXPENSES
...  IN COMPUTING TAXABLE NET INCOME, SUCH EXPENDITURES MUST BE
DEDUCTED IN DETERMINING THE NET INCOME FROM THE PROPERTY, WHICH AMOUNT
IS USED AS A LIMITATION IN THE COMPUTATION OF THE DEPLETION ALLOWANCE
BASED ON INCOME."  TO BE SURE, THIS WAS MERELY AN OPINION OF THE
GENERAL COUNSEL OF THE BUREAU AND DID NOT HAVE THE FORCE OR EFFECT OF A
TREASURY DECISION.  YET IN VIEW OF SUCH RULING, THERE IS NOW NO
REASONABLE BASIS FOR CONCLUDING THAT WHEN RESPONDENT MADE ITS SECOND
ELECTION IN 1927 IT HAD NO BASIS FOR ASSUMING THAT THE POLICY AS
RESPECTS "NET INCOME  ...  FROM THE PROPERTY" UNDER THE 1926 ACT WAS OR
WOULD BE NO DIFFERENT THAN IT HAD BEEN UNDER THE 1921 AND 1924 ACTS. 
THEREFORE, IN TERMS OF EQUITABLE CONSIDERATIONS RESPONDENT HAS NO JUST
GROUND OF COMPLAINT.  ON THESE FACTS SUBSTANTIAL JUSTICE REQUIRES THAT
RESPONDENT TAKE SUCH BURDENS AS MAY FLOW FROM ITS ELECTION ALONG WITH
THE BENEFITS. 

IRRESPECTIVE OF THESE CONSIDERATIONS, WE THINK THE REGULATIONS IN
QUESTION WERE VALID.  IT IS TRUE, AS STATED BY RESPONDENT, THAT THE
REGULATIONS UNDER THE 1921 ACT PROVIDED THAT THE "NET INCOME  ...  FROM
THE PROPERTY" SHOULD BE COMPUTED FOR PURPOSE OF THE DEPLETION ALLOWANCE
WITHOUT REGARD TO DEVELOPMENT EXPENDITURES.  AND IT MAY BE ASSUMED THAT
THAT ADMINISTRATIVE CONSTRUCTION RECEIVED LEGISLATIVE APPROVAL BY THE
REENACTMENT OF THE STATUTORY PROVISION IN THE 1924 ACT, WITHOUT
MATERIAL CHANGE.  CF. UNITED STATES V. DAKOTA-MONTANA OIL CO., 288 U.S.
459, 466.  BUT THAT DOES NOT MEAN THAT THAT MEANING SURVIVED BOTH THE
1926 AND THE 1928 ACTS.  IN THE FIRST PLACE, THERE WERE NO COMPARABLE
REGULATIONS UNDER THE 1926 ACT.  FN10  IN FACT, THE COMMISSIONER
UNDERTOOK UNDER THAT ACT TO FOLLOW THE PRACTICE LATER SET FORTH IN THE
REGULATIONS HERE IN QUESTION.  SEE AMBASSADOR PETROLEUM CO. V.
COMMISSIONER, 81 F.2D 474.  THOSE FACTS ARE OF SOME SIGNIFICANCE HERE
FOR THEY REFUTE THE SUGGESTION THAT THE CONGRESS IN ENACTING THE 1928
ACT WAS GIVING APPROVAL TO AN ADMINISTRATIVE CONSTRUCTION WHICH HAD
BEEN GIVEN TO COMPARABLE PROVISIONS OF EARLIER ACTS BUT WHICH WAS
ABANDONED BEFORE THE PASSAGE OF THE 1928 ACT.  THE MORE REASONABLE
INFERENCE SEEMS TO BE THAT REENACTMENT OF THE PROVISION IN QUESTION BY
THE 1928 ACT AT A TIME WHEN TREASURY POLICY AS RESPECTS ITS
CONSTRUCTION HAD CHANGED DID NOTHING MORE THAN TO RESTORE TO THE PHRASE
"NET INCOME  ...  FROM THE PROPERTY" ITS ORIGINAL AMBIGUITY. 
ACCORDINGLY THAT PHRASE BECAME PECULIARLY SUSCEPTIBLE TO NEW
ADMINISTRATIVE INTERPRETATION.  HELVERING V. R.J. REYNOLDS TOBACCO CO.,
306 U.S. 110; MORRISSEY V. COMMISSIONER, 296 U.S. 344. 

BUT IN ANY EVENT, THE VALIDITY OF THE REGULATIONS IN QUESTION SEEMS
CLEAR.  THE OFT-REPEATED STATEMENT THAT ADMINISTRATIVE CONSTRUCTION
RECEIVES LEGISLATIVE APPROVAL BY REENACTMENT OF A STATUTORY PROVISION,
WITHOUT MATERIAL CHANGE (UNITED STATES V. DAKOTA-MONTANA OIL CO.,
SUPRA) COVERS THE SITUATION WHERE THE VALIDITY OF ADMINISTRATIVE ACTION
STANDING BY ITSELF MAY BE DUBIOUS OR WHERE AMBIGUITIES IN A STATUTE OR
RULES ARE RESOLVED BY REFERENCE TO ADMINISTRATIVE PRACTICE PRIOR TO
REENACTMENT OF A STATUTE; AND WHERE IT DOES NOT APPEAR THAT THE RULE OR
PRACTICE HAS BEEN CHANGED BY THE ADMINISTRATIVE AGENCY THROUGH EXERCISE
OF ITS CONTINUING RULE-MAKING POWER.  IT DOES NOT MEAN THAT A
REGULATION INTERPRETING A PROVISION OF ONE ACT BECOMES FROZEN INTO
ANOTHER ACT MERELY BY REENACTMENT OF THAT PROVISION, SO THAT THAT
ADMINISTRATIVE INTERPRETATION CANNOT BE CHANGED PROSPECTIVELY THROUGH
EXERCISE OF APPROPRIATE RULE-MAKING POWERS.  CF. MORRISSEY V.
COMMISSIONER, SUPRA, AT P. 355.  THE CONTRARY CONCLUSION WOULD NOT ONLY
DRASTICALLY CURTAIL THE SCOPE AND MATERIALLY IMPAIR THE FLEXIBILITY OF
ADMINISTRATIVE ACTION; IT WOULD PRODUCE A MOST AWKWARD SITUATION. 
OUTSTANDING REGULATIONS WHICH HAD SURVIVED ONE ACT COULD BE CHANGED
ONLY AFTER A PRE-VIEW BY THE CONGRESS.  IN PREPARATION FOR A NEW
REVENUE ACT THE COMMISSIONER WOULD HAVE TO PREPARE IN ADVANCE NEW
REGULATIONS COVERING OLD PROVISIONS.  THEIR EFFECTIVENESS WOULD HAVE TO
AWAIT CONGRESSIONAL APPROVAL OF THE NEW ACT.  THE EFFECT OF SUCH
PROCEDURE, SO FAR AS TIME IS CONCERNED, WOULD BE PRECISELY THE SAME AS
IF THESE NEW REGULATIONS WERE SUBMITTED TO THE CONGRESS FOR APPROVAL. 
SUCH DILUTION OF ADMINISTRATIVE POWERS WOULD DEPRIVE THE ADMINISTRATIVE
PROCESS OF SOME OF ITS MOST VALUABLE QUALITIES - EASE OF ADJUSTMENT TO
CHANGE, FLEXIBILITY IN LIGHT OF EXPERIENCE, SWIFTNESS IN MEETING NEW OR
EMERGENCY SITUATIONS.  IT WOULD MAKE THE ADMINISTRATIVE PROCESS UNDER
THESE CIRCUMSTANCES CUMBERSOME AND SLOW.  KNOWN INEQUITIES IN EXISTING
REGULATIONS WOULD HAVE TO AWAIT THE ADVENT OF A NEW REVENUE ACT. 
PARALYSIS IN EFFORT TO KEEP ABREAST OF CHANGES IN BUSINESS PRACTICES
AND NEW CONDITIONS WOULD REDOUND AT TIMES TO THE DETRIMENT OF THE
REVENUE; AT TIMES TO THE DISADVANTAGE OF THE TAXPAYER.  LIKEWISE THE
RESULT WOULD BE TO READ INTO THE GRANT OF EXPRESS ADMINISTRATIVE POWERS
AN IMPLIED CONDITION THAT THEY WERE NOT TO BE EXERCISED UNLESS, IN
EFFECT, THE CONGRESS HAD CONSENTED.  WE DO NOT BELIEVE THAT SUCH
IMPAIRMENT OF THE ADMINISTRATIVE PROCESS IS CONSISTENT WITH THE
STATUTORY SCHEME WHICH THE CONGRESS HAS DESIGNED. 

THE ONLY REMAINING QUESTION IS WHETHER TREASURY REGULATIONS 74, ART.
221(I) WERE WITHIN THE POWER OF THE COMMISSIONER TO PROMULGATE.  THAT
THEY WERE SEEMS CLEAR BEYOND QUESTION.  WE ARE NOT DEALING HERE, AS WAS
THIS COURT IN HELVERING V. R.J. REYNOLDS TOBACCO CO., SUPRA, WITH
REGULATIONS APPLIED RETROACTIVELY.  THESE ARE APPLIED PROSPECTIVELY
ONLY.  THE RULE-MAKING POWER HERE IN QUESTION MAY BE FOUND IN SEC.
23(L) OF THE REVENUE ACT OF 1928.  THAT SECTION, AFTER PROVIDING THAT
COMPANIES LIKE RESPONDENT WERE ENTITLED, AS A DEDUCTION IN COMPUTING
NET INCOME, TO A "REASONABLE ALLOWANCE FOR DEPLETION  ...  ACCORDING TO
THE PECULIAR CONDITIONS IN EACH CASE," LAID ESPECIAL EMPHASIS ON THE
POWER OF THE COMMISSIONER TO MAKE RULES FOR THE COMPUTATION OF THE
DEPLETION ALLOWANCE, BY PROVIDING THAT "SUCH REASONABLE ALLOWANCE IN
ALL CASES IS TO BE MADE UNDER RULES AND REGULATIONS TO BE PRESCRIBED BY
THE COMMISSIONER, WITH THE APPROVAL OF THE SECRETARY." 

RESPONDENT DOES NOT STRONGLY URGE THAT THE REGULATORY POWER CONFERRED
BY SEC. 23(L) DOES NOT EXTEND TO THE PERCENTAGE DEPLETION ALLOWANCE
UNDER SEC. 114(B)(3).  RATHER THE CONTENTION SEEMS TO BE THAT TO ALLOW
THE COMMISSIONER BY REGULATION TO CHANGE THE MEASURE OF "NET INCOME
...  FROM THE PROPERTY" FROM TIME TO TIME, ESPECIALLY IN THE MANNER
HERE ATTEMPTED, WOULD BE TO APPROVE A RESULT EQUALLY AS CONTRARY TO THE
INTENTION OF CONGRESS AS IF HE HAD ATTEMPTED BY REGULATION TO CHANGE
THE PERCENTAGE FACTORS THEMSELVES.  BUT THE SCOPE OR IMPORTANCE OF THE
CHANGE EFFECTED BY THE REGULATIONS IS IMMATERIAL IF THE POWER TO
PROMULGATE SUCH REGULATIONS EXISTS.  HERE THE CONGRESS HAS NOT
PRESCRIBED A PRECISE FORMULA FREE FROM ALL AMBIGUITY.  THE AMBIGUOUS
PHRASE "NET INCOME  ...  FROM THE PROPERTY" WAS SUSCEPTIBLE OF VARIOUS
MEANINGS AND HENCE ADMINISTRATIVE INTERPRETATION OF IT WAS PECULIARLY
APPROPRIATE, AS WE HAVE SAID.  AND THERE WERE SPECIAL REASONS GROWING
OUT OF THE COMPLEX NATURE OF THE DEPLETION PROBLEM AS IT IS TREATED FOR
PURPOSES OF THE INCOME TAX, FOR REQUIRING THE COMMISSIONER TO MAKE
PRECISE THE VAGUE ELEMENTS OF THAT FORMULA.  IN ITS GENERAL ASPECTS
UNDER REVENUE ACTS DEPLETION IS A PROBLEM ON WHICH TAXPAYERS,
GOVERNMENT AND ACCOUNTANTS HAVE EXPRESSED A CONTRARIETY OF OPINIONS. 
FN11  OBFUSCATION IN ATTEMPTED APPLICATION OF ITS PRINCIPLES UNDER
INCOME TAX LAWS HAS FREQUENTLY BEEN THE RESULT.  THE CONGRESS ITSELF,
AS REVEALED IN THE HISTORY OF THE REVENUE ACTS, HAS EXPRESSED VARYING
PHILOSOPHIES.  IN PRACTICAL ADMINISTRATION OF ANY ONE STATUTE THERE ARE
ADMITTEDLY BORDERLINE CASES BETWEEN DEDUCTIBLE BUSINESS EXPENSES AND
NONDEDUCTIBLE CAPITAL OUTLAYS.  ON SPECIFIC FACT SITUATIONS THE CLEAR
LINE BETWEEN DEPLETION, DEPRECIATION, AND OBSOLESCENCE OFTEN BECOMES
BLURRED.  FN12  WHAT THOSE LINES ARE OR SHOULD BE IS FOR THE CONGRESS
AND THE COMMISSIONER.  EXPERIENCE AND NEW INSIGHT CAN BE EXPECTED TO
PRODUCE RATHER CONSTANT CHANGE.  IN SUM, THE HIGHLY TECHNICAL AND
INVOLVED FACTORS ENTERING INTO A PRACTICAL SOLUTION OF THE PROBLEM OF
DEPLETION IN ADMINISTRATION OF THE TAX LAWS POINTS TO THE NECESSITY OF
INTERPRETING SEC. 23(L) SO AS TO STRENGTHEN RATHER THAN TO WEAKEN THE
ADMINISTRATIVE POWERS TO DEAL WITH IT EQUITABLY AND REASONABLY.  THESE
CONSIDERATIONS ARE PERSUASIVE HERE NOT ONLY IN REAFFIRMING THE
CONCLUSION THAT THE RULE-MAKING POWER EXISTED, BUT ALSO IN CONCLUDING
THAT RESTRICTIONS ON THAT POWER SHOULD NOT BE LIGHTLY IMPOSED WHERE THE
INCIDENCE OF SUCH RULES AS ARE PROMULGATED IS PROSPECTIVE ONLY. 
REVERSED. 

FN1  THESE EXPENDITURES CONSISTED OF SUCH ITEMS AS LABOR, FUEL AND
POWER, MATERIALS AND SUPPLIES, TOOL RENTAL, TRUCK AND AUTO HIRE,
REPAIRS TO DRILLING EQUIPMENT AND DEPRECIATION UPON EQUIPMENT USED IN
DRILLING. 

FN2  FOR THE YEAR 1929 THE COMMISSIONER'S COMPUTATIONS WERE AS
FOLLOWS: 

GROSS INCOME FROM THE PROPERTIES..............  $1,001,375.17 

DEDUCTIONS:  PRODUCTION EXPENSE.                  $171,399.03 

DEVELOPMENT 

EXPENSE.......................................     606,051.66 

TOTAL EXPENSES................................     777,450.69 

NET INCOME FROM PROPERTY (COMPUTED 

WITHOUT ALLOWANCE FOR DEPLETION)..............    $223,924.48 

50 PER CENT OF THAT INCOME....................    $111,962.24 

THE COMMISSIONER LIMITED THE DEPLETION ALLOWANCE TO THE LAST
MENTIONED FIGURE SINCE 50 PER CENT OF THE NET INCOME FROM THE PROPERTY
AS THUS COMPUTED WAS LESS THAN 27 1/2 PER CENT OF THE GROSS INCOME. 

UNDER THE TAXPAYERS COMPUTATION, THE NET INCOME FOR DEPLETION
PURPOSES WOULD BE $1,001,375.17 LESS $171,399.03 OR $829,976.14 AND 50
PER CENT THEREOF WOULD NOT BE LESS THAN 27 1/2 PER CENT OF THE GROSS
INCOME. 

FOR THE YEAR 1930 THE COMMISSIONER'S COMPUTATION SHOWED A LOSS OF
$194,869.22.  HE THEREFORE RULED THAT SINCE THE PERCENTAGE DEPLETION
ALLOWANCE WAS LIMITED TO 50 PER CENT OF THE NET INCOME FROM THE
PROPERTIES AND SINCE THE TAXPAYER HAD NO SUCH NET INCOME, NO DEDUCTION
ON ACCOUNT OF PERCENTAGE DEPLETION COULD BE ALLOWED.  THE TAXPAYER
REFUSED, HOWEVER, TO DEDUCT DEVELOPMENT EXPENSES IN THE APPLICATION OF
THE 50 PER CENT LIMITATION AND CLAIMED A DEPLETION DEDUCTION OF
$42,528.91, ARRIVED AT AS FOLLOWS: 

GROSS INCOME FROM THE PROPERTIES..............    $370,448.72 

DEDUCTIONS:  PRODUCTION EXPENSE...............     285,390.90

   NET INCOME...............................     $85,057.82 

DEPLETION DEDUCTION (50 PER CENT OF NET INCOME)... $42,528.91 

FN3  TREASURY REGULATIONS 69, ART. 223, PROMULGATED UNDER THE REVENUE
ACT OF 1926 PROVIDES THAT "SUCH INCIDENTAL EXPENSES AS ARE PAID FOR
...  DEVELOPMENT OF THE PROPERTY MAY AT THE OPTION OF THE TAXPAYER BE
DEDUCTED AS A DEVELOPMENT EXPENSE OR CHARGED TO CAPITAL ACCOUNT
RETURNABLE THROUGH DEPLETION.  ...  AN ELECTION ONCE MADE UNDER THE
PROVISIONS OF THIS ARTICLE WILL CONTROL THE TAXPAYER'S RETURNS FOR ALL
SUBSEQUENT YEARS." 

FN4  TREASURY REGULATIONS 62, ART. 201(H). 

FN5  TREASURY REGULATIONS 65, ART. 201(H). 

FN6  RESPONDENT POINTS TO THE REPORT OF COMMITTEE ON WAYS AND MEANS
ON REVENUE BILL OF 1926(H. REP. NO. 1, 69TH CONG., 1ST SESS., P. 6):
"THE DISCOVERY DEPLETION DEDUCTION LIMITATION OF AN AMOUNT NOT IN
EXCESS OF 50 PER CENT OF THE NET INCOME OF THE TAXPAYER FROM THE
PROPERTY UPON WHICH DISCOVERY WAS MADE, PROVIDED IN EXISTING LAW, IS
RETAINED IN THIS PROVISION." 

FN7  THE DATE WHEN TREASURY REGULATIONS 74, ART. 221(I), HERE IN
QUESTION, WERE PROMULGATED. 

FN8  TREASURY DECISION 4025, CUM. BUL.  VI-1, P. 75. 

FN9  G.C.M. 2315, CUM. BUL.  VI-2, P. 21. 

FN10  AS RESPECTS DISCOVERY DEPLETION IN THE CASE OF MINES UNDER THE
1926 ACT, PROVISIONS SIMILAR TO THOSE UNDER THE 1921 AND 1924 ACTS WERE
RETAINED.  TREASURY REGULATIONS 69, ART. 201(H).  BUT THIS WAS NOT TRUE
AS RESPECTS OIL AND GAS WELLS.  SECTION 204(C)(2) OF THE REVENUE ACT OF
1926 APPLIED THE PERCENTAGE DEPLETION ALLOWANCE EXCLUSIVELY TO "OIL AND
GAS WELLS."  TREASURY REGULATIONS 69, ART. 221, PROVIDED: 

"UNDER SECTION 204(C)(2), IN THE CASE OF OIL AND GAS WELLS, A
TAXPAYER MAY DEDUCT FOR DEPLETION AN AMOUNT EQUAL TO 27 1/2 PER CENT OF
THE GROSS INCOME FROM THE PROPERTY DURING THE TAXABLE YEAR, BUT SUCH
DEDUCTION SHALL NOT EXCEED 50 PER CENT OF THE NET INCOME OF THE
TAXPAYER (COMPUTED WITHOUT ALLOWANCE FOR DEPLETION) FROM THE PROPERTY. 
IN NO CASE SHALL THE DEDUCTION COMPUTED UNDER THIS PARAGRAPH BE LESS
THAN IT WOULD BE IF COMPUTED UPON THE BASIS OF THE COST OF THE PROPERTY
OR ITS VALUE AT THE BASIC DATE, AS THE CASE MAY BE.  IN GENERAL, 'THE
PROPERTY,' AS THE TERM IS USED IN SECTION 204(C)(2) AND THIS ARTICLE,
REFERS TO THE SEPARATE TRACTS OR LEASES OF THE TAXPAYER." 

THUS, IT IS APPARENT THAT THE DELIMITATION IMPLIED IN THE PERMISSION
TO DEDUCT "OPERATING EXPENSES" PRESENT UNDER THE EARLIER REGULATIONS
DISAPPEARED FROM THE 1926 REGULATIONS IN CASE OF OIL AND GAS WELLS. 

FN11  2 PAUL & MERTENS, THE LAW OF FEDERAL INCOME TAXATION (1934),
CH. 21; 47 YALE L. JOURN.  806(1938). 

FN12  SEE FOR EXAMPLE THE ISSUES POSED IN UNITED STATES V. DAKOTA
MONTANA OIL CO., SUPRA. 

MR. JUSTICE BUTLER AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :

















F.H.E. OIL CO. V. HELVERING, 308 U.S. 104 


NO. 26.  ARGUED OCTOBER 9, 10, 1939.  - DECIDED NOVEMBER 6, 1939.  - 102
F.2D 596, AFFIRMED. 


A REGULATION UNDER THE REVENUE ACT OF 1932, REQUIRING THAT DEVELOPMENT
AS WELL AS OPERATIVE EXPENSES BE DEDUCTED FROM GROSS INCOME FROM OIL
WELLS, IN ASCERTAINING "NET INCOME FROM THE PROPERTY" UNDER SEC.
114(B)(3), SUSTAINED, UPON THE AUTHORITY OF HELVERING V. WILSHIRE OIL
CO., ANTE, P. 90. 

F.H.E. OIL CO. V. HELVERING, COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 307 U.S. 618, TO REVIEW A JUDGMENT OF THE COURT BELOW
WHICH REVERSED A DECISION OF THE BOARD OF TAX APPEALS (36 B.T.A. 1327),
REDUCING A DEFICIENCY ASSESSMENT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE SAME ISSUE AS IS INVOLVED IN HELVERING V.
WILSHIRE OIL CO., ANTE, P. 90, EXCEPT THAT IT ARISES UNDER THE REVENUE
ACT OF 1932(47 STAT. 169).  IN COMPUTING ITS TAXABLE NET INCOME UNDER
THAT ACT, PETITIONER DEDUCTED CERTAIN DEVELOPMENT EXPENDITURES AS IT
HAD DONE SINCE ITS ORGANIZATION IN 1925.  BUT IT REFUSED TO TAKE THESE
SAME DEDUCTIONS IN COMPUTING NET INCOME FOR THE PURPOSE OF APPLYING THE
50 PER CENT LIMITATION ON THE DEPLETION ALLOWANCE, AS PROVIDED IN SEC.
114(B)(3) OF THE 1932 ACT.  FN1  THAT SECTION, SO FAR AS MATERIAL HERE,
WAS THE SAME AS SEC. 114(B)(3) OF THE 1928 ACT (45 STAT. 791).  AND
TREASURY REGULATIONS 77, ART. 221(H) PROMULGATED UNDER THE 1932 ACT
FN2  DEFINED "NET INCOME  ...  FROM THE PROPERTY" AS USED IN SEC.
114(B)(3) SO AS TO REQUIRE "DEVELOPMENT COSTS" OF THE KIND HERE
INVOLVED TO BE DEDUCTED FROM "GROSS INCOME FROM THE PROPERTY."  FN3
THE BOARD OF TAX APPEALS HELD THAT PETITIONER NEED NOT DEDUCT THESE
DEVELOPMENT EXPENDITURES IN APPLYING THE 50 PER CENT LIMITATION ON
DEPLETION ALLOWANCE (36 B.T.A. 1327) AND THE CIRCUIT COURT OF APPEALS
REVERSED (102 F.2D 596).  SINCE WE HAVE THIS DAY DECIDED IN HELVERING
V. WILSHIRE OIL CO., SUPRA, THAT COMPARABLE REGULATIONS UNDER THE 1928
ACT WERE LAWFUL, A FORTIORI THOSE HERE INVOLVED ARE VALID AND BINDING
ON PETITIONER.  THE JUDGMENT OF THE COURT BELOW WAS THEREFORE RIGHT AND
IS AFFIRMED. 

FN1  THAT SECTION PROVIDED: 

"IN THE CASE OF OIL AND GAS WELLS THE ALLOWANCE FOR DEPLETION SHALL
BE 27 1/2 PER CENTUM OF THE GROSS INCOME FROM THE PROPERTY DURING THE
TAXABLE YEAR, EXCLUDING FROM SUCH GROSS INCOME AN AMOUNT EQUAL TO ANY
RENTS OR ROYALTIES PAID OR INCURRED BY THE TAXPAYER IN RESPECT OF THE
PROPERTY.  SUCH ALLOWANCE SHALL NOT EXCEED 50 PER CENTUM OF THE NET
INCOME OF THE TAXPAYER (COMPUTED WITHOUT ALLOWANCE FOR DEPLETION) FROM
THE PROPERTY, EXCEPT THAT IN NO CASE SHALL THE DEPLETION ALLOWANCE BE
LESS THAN IT WOULD BE IF COMPUTED WITHOUT REFERENCE TO THIS
PARAGRAPH." 

FN2  SECTION 23(L) OF THE REVENUE ACT OF 1932 PROVIDED: 

"IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     .         .       .         .         . 

"(L)  DEPLETION.  - IN THE CASE OF MINES, OIL AND GAS WELLS, OTHER
NATURAL DEPOSITS, AND TIMBER, A REASONABLE ALLOWANCE FOR DEPLETION AND
FOR DEPRECIATION OF IMPROVEMENTS, ACCORDING TO THE PECULIAR CONDITIONS
IN EACH CASE; SUCH REASONABLE ALLOWANCE IN ALL CASES TO BE MADE UNDER
RULES AND REGULATIONS TO BE PRESCRIBED BY THE COMMISSIONER, WITH THE
APPROVAL OF THE SECRETARY.  ..." 

FN3  TREASURY REGULATIONS 77, ART. 221(H) PROVIDED: 

"'NET INCOME OF THE TAXPAYER (COMPUTED WITHOUT ALLOWANCE FOR
DEPLETION) FROM THE PROPERTY,' AS USED IN SECTION 114(B)(2), (3), AND
(4) AND ARTICLES 221 TO 248, INCLUSIVE, MEANS THE 'GROSS INCOME FROM
THE PROPERTY' AS DEFINED IN PARAGRAPH (G) LESS THE ALLOWABLE DEDUCTIONS
ATTRIBUTABLE TO THE MINERAL PROPERTY UPON WHICH THE DEPLETION IS
CLAIMED AND THE ALLOWABLE DEDUCTIONS ATTRIBUTABLE TO THE PROCESSES
LISTED IN PARAGRAPH (G) IN SO FAR AS THEY RELATE TO THE PRODUCT OF SUCH
PROPERTY, INCLUDING OVERHEAD AND OPERATING EXPENSES, DEVELOPMENT COSTS
PROPERLY CHARGED TO EXPENSE, DEPRECIATION, TAXES, LOSSES SUSTAINED,
ETC., BUT EXCLUDING ANY ALLOWANCE FOR DEPLETION.  ..." 

MR. JUSTICE BUTLER AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DISPOSITION OF THIS CASE. 
..END :












CASE V. LOS ANGELES LUMBER CO., 308 U.S. 106 


NOS. 23 AND 24.  ARGUED OCTOBER 18, 1939.  - DECIDED NOVEMBER 6, 1939. 
100 F.2D 963, REVERSED. 


1.  THE QUESTION WHETHER A PLAN OF REORGANIZATION IS "FAIR AND
EQUITABLE" WITHIN THE MEANING OF SEC. 77B OF THE BANKRUPTCY ACT IS A
QUESTION OF LAW.  P. 114. 

2.  WHERE A PLAN OF REORGANIZATION IS NOT FAIR AND EQUITABLE AS A
MATTER OF LAW, IT CAN NOT BE APPROVED BY THE COURT EVEN THOUGH THE
PERCENTAGE OF THE VARIOUS CLASSES OF SECURITY HOLDERS REQUIRED BY SEC.
77B (F) FOR CONFIRMATION OF A PLAN HAS CONSENTED.  ID. 

3.  THE FACT THAT A GREAT MAJORITY OF THE SECURITY HOLDERS HAVE
APPROVED THE PLAN IS NOT THE TEST OF WHETHER THE PLAN IS A FAIR AND
EQUITABLE ONE.  ID. 

4.  UNDER SEC. 77B OF THE BANKRUPTCY ACT, AS IN EQUITY
REORGANIZATIONS, THE COURT MUST USE ITS OWN INFORMED AND INDEPENDENT
JUDGMENT IN EVERY IMPORTANT DETERMINATION IN THE ADMINISTRATION OF THE
PROCEEDINGS.  P. 115. 

5.  WHERE WORDS ARE EMPLOYED IN AN ACT WHICH HAD AT THE TIME A WELL
KNOWN MEANING IN THE LAW, THEY ARE USED IN THAT SENSE UNLESS THE
CONTEXT REQUIRES THE CONTRARY.  ID. 

6.  IT IS A FIXED PRINCIPLE, GOVERNING UNDER SEC. 77B OF THE
BANKRUPTCY ACT AS WELL AS IN EQUITY REORGANIZATIONS, THAT, TO THE
EXTENT OF THEIR DEBTS, CREDITORS ARE ENTITLED TO ABSOLUTE PRIORITY OVER
STOCKHOLDERS AGAINST ALL THE PROPERTY OF AN INSOLVENT CORPORATION,
RELATIVE PRIORITY NOT BEING SUFFICIENT.  P. 115. 

7.  TO ACCORD THE CREDITOR HIS FULL OR ABSOLUTE PRIORITY AGAINST THE
CORPORATE ASSETS WHERE THE DEBTOR IS INSOLVENT, THE STOCKHOLDER'S
PARTICIPATION MUST BE BASED ON A CONTRIBUTION IN MONEY OR IN MONEY'S
WORTH, REASONABLY EQUIVALENT TO THE PARTICIPATION ACCORDED THE
STOCKHOLDER.  PP. 115-122. 

8.  THE AMOUNT OWED BONDHOLDERS BY AN INSOLVENT CORPORATION WAS MORE
THAN FOUR-FOLD THE VALUE OF ITS ASSETS.  A PLAN OF REORGANIZATION UNDER
SEC. 77B OF THE BANKRUPTCY ACT GAVE TO THE OLD STOCKHOLDERS 23 PER
CENT. OF THE ASSETS AND VOTING POWER IN A NEW COMPANY WITHOUT REQUIRING
OF THEM ANY FRESH CONTRIBUTION OF CAPITAL, HELD NOT "FAIR AND
REASONABLE."  P. 122. 

SUCH PARTICIPATION BY THE OLD STOCKHOLDERS CAN NOT BE JUSTIFIED: 

(1)  UPON THE GROUND THAT SOME OF THEM POSSESS A FINANCIAL STANDING
AND INFLUENCE AND CAN PROVIDE A CONTINUITY OF MANAGEMENT BENEFICIAL TO
THE BONDHOLDERS (P. 122); OR 

(2)  UPON THE GROUND THAT IF THE BONDHOLDERS WERE TO FORECLOSE
PRESENTLY THEY WOULD RECEIVE SUBSTANTIALLY LESS THAN THE APPRAISED
ASSETS (P. 123); OR 

(3)  UPON THE GROUND THAT THE VIRTUAL ABROGATION BY THE PLAN OF AN
EARLIER AGREEMENT DEFERRING FORECLOSURE GAVE TO THE BONDHOLDERS A
VALUABLE CONSIDERATION JUSTIFYING PARTICIPATION BY THE STOCKHOLDERS IN
THE REORGANIZATION (P. 124); OR 

(4)  UPON THE GROUND THAT THE BONDHOLDERS WILL BE AIDED BY
MAINTAINING THE DEBTOR AS A GOING CONCERN AND AVOIDING LITIGATION WITH
THE OLD STOCKHOLDERS.  P. 129. 

9.  AN INSOLVENT CORPORATION, BY INVOKING THE JURISDICTION OF THE
DISTRICT COURT UNDER SEC. 77B OF THE BANKRUPTCY ACT, NECESSARILY WAIVES
ITS RIGHT TO REMAIN IN UNMOLESTED DOMINION AND CONTROL OVER THE
CORPORATE PROPERTY; AND CONSEQUENTLY A PURPORTED SURRENDER, IN ITS PLAN
OF REORGANIZATION, OF ITS RIGHT, UNDER AN EARLIER AGREEMENT, TO
POSTPONE THE DATE WHEN THE MORTGAGE SECURING ITS BONDS COULD BE
FORECLOSED, FURNISHES NO CONSIDERATION FOR PARTICIPATION BY
STOCKHOLDERS OF THE CORPORATION IN THE ASSETS AND MANAGEMENT OF THE NEW
ONE TO BE FORMED.  P. 124. 

10.  IN DETERMINING WHETHER A PLAN OF REORGANIZATION PRESENTED BY AN
INSOLVENT CORPORATION UNDER SEC. 77B OF THE BANKRUPTCY ACT IS "FAIR AND
EQUITABLE," TO MINORITY BONDHOLDERS, THE FACT THAT IT WAS PREVIOUSLY
AGREED TO BY THE REQUISITE MAJORITIES OF SECURITY HOLDERS DOES NOT GIVE
IT THE FORCE OF A CONTRACT BINDING ON THE COURT.  P. 125. 

11.  IN PROCEEDINGS UNDER SEC. 77B OF THE BANKRUPTCY ACT, COMPROMISE
OF CLAIMS IS ALLOWABLE IN FITTING CIRCUMSTANCES; BUT THE DISTRICT COURT
IS NOT TO BE INFLUENCED TO APPROVE OR DISAPPROVE A PLAN OF
REORGANIZATION BY THREATS OF LITIGATION ON THE PART OF STOCKHOLDERS. 
P. 129. 

12.  THE CRITERIA FOR EXCLUSION OR INCLUSION OF OLD STOCKHOLDERS IN A
REORGANIZATION UNDER SEC. 77B ARE THE SAME WHETHER THE PETITION BE
VOLUNTARY OR INVOLUNTARY.  P. 131. 

13.  FAILURE TO ACCEPT A PLAN PROPOSED DOES NOT FORCE DISMISSAL OR
LIQUIDATION.  UNDER SEC. 77B (C)(8), THE DISTRICT COURT MAY ALLOW TIME
FOR PROPOSAL OF A NEW PLAN WHERE IT DOES NOT APPEAR THAT ONE WHICH IS
FAIR AND EQUITABLE AND IN ACCORDANCE WITH THE ACT CAN NOT BE ADOPTED,
NOR THAT ALL REASONABLE TIME FOR PROPOSAL OF SUCH ALTERNATIVE PLAN HAS
EXPIRED.  P. 131. 

CASE ET AL. V. LOS ANGELES LUMBER PRODUCTS CO., LTD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 307 U.S. 619, TO REVIEW THE AFFIRMANCE OF DECREES OF THE
DISTRICT COURT CONFIRMING A CORPORATE DEBTOR'S AMENDED PLAN OF
REORGANIZATION UNDER SEC. 77B OF THE BANKRUPTCY ACT.  27 F.SUPP.  501. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE CASES  FN1  PRESENT THE QUESTION OF THE CONDITIONS UNDER WHICH
STOCKHOLDERS MAY PARTICIPATE IN A PLAN OF REORGANIZATION UNDER SEC. 77B
(48 STAT. 912) OF THE BANKRUPTCY ACT WHERE THE DEBTOR CORPORATION IS
INSOLVENT BOTH IN THE EQUITY AND IN THE BANKRUPTCY SENSE.  BECAUSE OF
THE CONTRARIETY OF TENDENCIES IN PRACTICAL ADMINISTRATION OF THE ACT
AMONG THE CIRCUITS AS ILLUSTRATED BY THE DIFFERENCES BETWEEN THE
HOLDING BELOW (100 F.2D 963) AND THAT IN IN RE BARCLAY PARK CORP., 90
F.2D 595, WE GRANTED CERTIORARI. 

THE DEBTOR IS A HOLDING COMPANY OWNING ALL OF THE OUTSTANDING SHARES
OF THE CAPITAL STOCK (EXCEPT FOR CERTAIN QUALIFYING SHARES HELD BY
DIRECTORS) OF SIX SUBSIDIARIES.  THREE OF THESE HAVE NO ASSETS OF VALUE
TO THE DEBTOR.  TWO HAVE ASSETS OF LITTLE VALUE.  THE DEBTOR'S
PRINCIPAL ASSET CONSISTS OF THE STOCK OF LOS ANGELES SHIPBUILDING AND
DRYDOCK CORPORATION WHICH IS ENGAGED IN SHIPBUILDING AND SHIP REPAIR
WORK IN CALIFORNIA.  THIS SUBSIDIARY HAS FIXED ASSETS OF $430,000 AND
CURRENT ASSETS OF APPROXIMATELY $400,000.  THIS SUBSIDIARY HAS ONLY
CURRENT DEBTS OF A SMALL AMOUNT, NOT AFFECTED BY THE PLAN.  THE
DEBTOR'S ASSETS OTHER THAN THE STOCK OF ITS SUBSIDIARIES AGGREGATE LESS
THAN $10,000. 

THE DEBTOR'S LIABILITIES  FN2  CONSIST OF PRINCIPAL AND INTEREST OF
$3,807,071.88 ON FIRST LIEN MORTGAGE BONDS ISSUED IN 1924 AND MATURING
IN 1944, SECURED BY A TRUST INDENTURE COVERING THE FIXED ASSETS OF LOS
ANGELES SHIPBUILDING AND DRYDOCK CORPORATION (ONE OF THE SUBSIDIARIES)
AND THE CAPITAL STOCK OF ALL OF THE SUBSIDIARIES.  NO INTEREST HAS BEEN
PAID ON THESE BONDS SINCE FEBRUARY 1, 1929.  IN 1930, AS A CONSEQUENCE
OF THE FINANCIAL EMBARRASSMENT OF THE DEBTOR, A SO-CALLED VOLUNTARY
REORGANIZATION WAS EFFECTED.  TO THAT END, A SUPPLEMENT TO THIS TRUST
INDENTURE WAS EXECUTED, PURSUANT TO A PROVISION THEREIN, WITH THE
CONSENT OF ABOUT 97% OF THE FACE VALUE OF ALL THE OUTSTANDING BONDS,
WHICH REDUCED THE INTEREST FROM 7 1/2% TO 6% AND MADE THE INTEREST
PAYABLE ONLY IF EARNED.  AT THE SAME TIME THE OLD STOCK OF THE DEBTOR
WAS WIPED OUT BY ASSESSMENT AND NEW STOCK ISSUED, DIVIDED INTO CLASS A
AND CLASS B, WITH EQUAL VOTING RIGHTS.  CLASS A STOCK WAS ISSUED TO
SOME OF THE OLD STOCKHOLDERS WHO CONTRIBUTED $400,000 NEW MONEY WHICH
WAS TURNED OVER TO THE LOS ANGELES SHIPBUILDING AND DRYDOCK CORPORATION
AND USED BY IT AS WORKING CAPITAL.  IN CONSIDERATION OF THIS
CONTRIBUTION THE BONDHOLDERS WHO AGREED TO THE MODIFICATION OF THE
INDENTURE LIKEWISE RELEASED THE STOCKHOLDERS' LIABILITY UNDER
CALIFORNIA LAW IN FAVOR OF THESE CONTRIBUTORS.  SOME CLASS B STOCK WAS
ISSUED TO BONDHOLDERS IN PAYMENT OF UNPAID INTEREST COUPONS.  FN3  AT
PRESENT THERE ARE OUTSTANDING 57,788 SHARES OF CLASS A STOCK AND 5,112
SHARES OF CLASS B STOCK. 

IN 1937 THE MANAGEMENT PREPARED A PLAN OF REORGANIZATION TO WHICH
OVER 80% OF THE BONDHOLDERS AND OVER 90% OF THE STOCK ASSENTED.  THIS
PLAN OF REORGANIZATION, AS WE SHALL DISCUSS HEREAFTER, PROVIDED FOR ITS
CONSUMMATION EITHER ON THE BASIS OF CONTRACT OR IN A SEC. 77B
PROCEEDING, SUCH ELECTION TO BE MADE BY THE BOARD OF DIRECTORS.  IN
JANUARY 1938 THE DIRECTORS CHOSE THE LATTER COURSE AND THE DEBTOR
CORPORATION FILED A PETITION FOR REORGANIZATION UNDER SEC. 77B OF THE
BANKRUPTCY ACT, WITH THE PLAN ATTACHED AND RECITING, INTER ALIA, THAT
THE REQUIRED PERCENTAGE OF SECURITY HOLDERS HAD CONSENTED TO IT.  THIS
PLAN AS FILED WAS LATER MODIFIED BY THE DEBTOR, AS WE POINT OUT LATER,
IN A MANNER NOT DEEMED BY US MATERIAL TO THE ISSUES HERE INVOLVED. 
THAT PLAN AS MODIFIED PROVIDES FOR THE FORMATION OF A NEW CORPORATION,
WHICH WILL ACQUIRE THE ASSETS OF LOS ANGELES SHIPBUILDING AND DRYDOCK
CORPORATION,  FN4  AND WHICH WILL HAVE A CAPITAL STRUCTURE OF 1,000,000
SHARES OF AUTHORIZED $1 PAR VALUE VOTING STOCK.  THIS STOCK IS DIVIDED
INTO 811,375 SHARES OF PREFERRED AND 188,625 SHARES OF COMMON.  THE
PREFERRED STOCK WILL BE ENTITLED TO A 5% NON-CUMULATIVE DIVIDEND, AFTER
WHICH THE COMMON STOCK WILL BE ENTITLED TO A SIMILAR DIVIDEND. 
THEREAFTER ALL SHARES OF BOTH CLASSES WILL PARTICIPATE EQUALLY IN
DIVIDENDS.  THE PREFERRED STOCK WILL RECEIVE ON LIQUIDATION A
PREFERENCE TO THE AMOUNT OF ITS PAR VALUE.  THEREUPON THE COMMON WILL
RECEIVE A SIMILAR PREFERENCE.  THEREAFTER ALL SHARES OF BOTH CLASSES
PARTICIPATE EQUALLY. 

170,000 SHARES OF PREFERRED ARE RESERVED FOR SALE TO RAISE MONEY FOR
REHABILITATION OF THE YARDS.  FN5  641,375 SHARES OF THE PREFERRED ARE
TO BE ISSUED TO THE BONDHOLDERS, 250 SHARES TO BE EXCHANGED FOR EACH
$1000 BOND.  THE CLASS A STOCKHOLDERS WILL RECEIVE THE 188,625 SHARES
OF COMMON STOCK, WITHOUT THE PAYMENT OF ANY SUBSCRIPTION OR
ASSESSMENT.  NO PROVISION IS MADE FOR THE OLD CLASS B STOCK.  THE
AGGREGATE PAR VALUE OF THE TOTAL PREFERRED AND COMMON STOCK TO BE
ISSUED TO EXISTING SECURITY HOLDERS IS $830,000 - AN AMOUNT WHICH
EQUALS THE GOING CONCERN VALUE OF THE ASSETS OF THE ENTERPRISE. 

THE PLAN WAS ASSENTED TO BY APPROXIMATELY 92.81% OF THE FACE AMOUNT
OF THE BONDS, 99.75% OF THE CLASS A STOCK, AND 90% OF THE CLASS B
STOCK.  PETITIONERS OWN $18,500 FACE AMOUNT OF THE BONDS.  THEY DID NOT
CONSENT TO THE SO-CALLED VOLUNTARY REORGANIZATION IN 1930 WHEREBY THE
TRUST INDENTURE WAS AMENDED.  AND THROUGHOUT THE PRESENT SEC. 77B
PROCEEDINGS THEY APPROPRIATELY OBJECTED THAT THE PLAN WAS NOT FAIR AND
EQUITABLE TO BONDHOLDERS. 

THE DISTRICT COURT FOUND THAT THE DEBTOR WAS INSOLVENT BOTH IN THE
EQUITY SENSE AND IN THE BANKRUPTCY SENSE.  THE LATTER FINDING WAS BASED
UPON "APPRAISAL AND AUDIT REPORTS."  IN THIS CONNECTION THE COURT FOUND
THAT THE TOTAL VALUE OF ALL ASSETS OF LOS ANGELES SHIPBUILDING AND
DRYDOCK CORPORATION WAS $830,000, THOSE ASSETS CONSTITUTING PRACTICALLY
ALL OF THE ASSETS OF THE DEBTOR AND OF ITS VARIOUS SUBSIDIARIES OF ANY
VALUE TO THE ESTATE.  YET IN SPITE OF THIS FINDING, THE COURT, IN THE
ORDERS NOW UNDER REVIEW, CONFIRMED THE PLAN.  AND THE COURT APPROVED IT
DESPITE THE FACT THAT THE OLD STOCKHOLDERS, WHO HAVE NO EQUITY IN THE
ASSETS OF THE ENTERPRISE, ARE GIVEN 23% OF THE ASSETS AND VOTING POWER
IN THE NEW COMPANY WITHOUT MAKING ANY FRESH CONTRIBUTION BY WAY OF
SUBSCRIPTION OR ASSESSMENT.  THE COURT, HOWEVER, JUSTIFIED INCLUSION OF
THE STOCKHOLDERS IN THE PLAN (1) BECAUSE IT APPARENTLY FELT THAT THE
RELATIVE PRIORITIES OF THE BONDHOLDERS AND STOCKHOLDERS WERE MAINTAINED
BY VIRTUE OF THE PREFERENCES ACCORDED THE STOCK WHICH THE BONDHOLDERS
WERE TO RECEIVE AND THE FACT THAT THE STOCK GOING TO THE BONDHOLDERS
CARRIED 77% OF THE VOTING POWER OF ALL THE STOCK PRESENTLY TO BE ISSUED
UNDER THE PLAN; AND (2) BECAUSE IT WAS ABLE TO FIND THAT THEY HAD
FURNISHED THE BONDHOLDERS CERTAIN "COMPENSATING ADVANTAGES" OR
"CONSIDERATION."  THIS SO-CALLED CONSIDERATION WAS STATED BY THE
DISTRICT COURT IN SUBSTANCE AS FOLLOWS: 

1.  IT WILL BE AN ASSET OF VALUE TO THE NEW COMPANY TO RETAIN THE OLD
STOCKHOLDERS IN THE BUSINESS BECAUSE OF "THEIR FAMILIARITY WITH THE
OPERATION" OF THE BUSINESS AND THEIR "FINANCIAL STANDING AND INFLUENCE
IN THE COMMUNITY"; AND BECAUSE THEY CAN PROVIDE A "CONTINUITY OF
MANAGEMENT." 

2.  IF THE BONDHOLDERS WERE ABLE TO FORECLOSE NOW AND LIQUIDATE THE
DEBTOR'S ASSETS, THEY WOULD RECEIVE "SUBSTANTIALLY LESS THAN THE
PRESENT APPRAISED VALUE" OF THE ASSETS. 

3.  BY REASON OF THE SO-CALLED VOLUNTARY REORGANIZATION IN 1930, THE
BONDHOLDERS CANNOT FORECLOSE UNTIL 1944, THE OLD STOCKHOLDERS HAVING
THE RIGHT TO MANAGE AND CONTROL THE DEBTOR UNTIL THAT TIME.  AT LEAST
THE BONDHOLDERS CANNOT NOW FORECLOSE WITHOUT "LONG AND PROTRACTED
LITIGATION" WHICH WOULD BE "EXPENSIVE AND OF GREAT INJURY" TO THE
DEBTOR.  HENCE, THE VIRTUAL ABROGATION OF THE AGREEMENT DEFERRING
FORECLOSURE UNTIL 1944 WAS "THE PRINCIPAL VALUABLE CONSIDERATION"
PASSING TO THE BONDHOLDERS FROM THE OLD STOCKHOLDERS. 

4.  BONDING COMPANIES ARE UNWILLING TO ASSUME THE RISK OF BECOMING
SURETY FOR THE DEBTOR OR ITS PRINCIPAL SUBSIDIARY "BECAUSE OF THE
OUTSTANDING BOND ISSUE."  THE GOVERNMENT'S CONSTRUCTION PROGRAM WILL
PROVIDE "VALUABLE OPPORTUNITIES" TO THE DEBTOR IF IT IS PREPARED TO
HANDLE THE BUSINESS.  HENCE, THE VALUE TO THE BONDHOLDERS OF
MAINTAINING THE DEBTOR "AS A GOING CONCERN, AND OF AVOIDING LITIGATION,
IS IN EXCESS OF THE VALUE OF THE STOCK BEING ISSUED" TO THE OLD
STOCKHOLDERS. 

THE CIRCUIT COURT OF APPEALS IN AFFIRMING THE DECREE CONFIRMING THE
PLAN STATED THAT IT WAS NOT POSSIBLE FOR IT TO DO OTHER THAN ACCEPT
THESE FINDINGS BECAUSE OF A STIPULATION AND THE STATE OF THE RECORD
THEREUNDER.  THAT STIPULATION PROVIDED FOR AN ABBREVIATED RECORD AND
STATED THAT THE DISSENTING BONDHOLDERS INTENDED "TO RAISE QUESTIONS OF
SUBSTANTIVE LAW ONLY."  BUT IT ALSO SPECIFIED AS ERRORS, INTER ALIA,
THE INCLUSION OF STOCKHOLDERS IN A PLAN WHERE THEY HAVE NO EQUITY AND
THE FINDING THAT THE PLAN WAS "FAIR" AND "EQUITABLE."  THEREBY THE
STIPULATION ADEQUATELY RESERVED THE QUESTION OF LAW AS TO WHETHER ON
THESE FACTS THE PLAN WAS FAIR AND EQUITABLE WITHIN THE MEANING OF SEC.
77B.  BUT IN ANY EVENT A STIPULATION DOES NOT FORECLOSE LEGAL
QUESTIONS.  SWIFT & CO. V. HOCKING VALLEY RY. CO., 243 U.S. 281, 289. 

ON THAT QUESTION OF LAW WE THINK THAT THE DISTRICT COURT ERRED IN
CONFIRMING THE PLAN AND THAT THE CIRCUIT COURT OF APPEALS ERRED IN
AFFIRMING THAT DECREE.  WE THINK THAT AS A MATTER OF LAW THE PLAN WAS
NOT FAIR AND EQUITABLE. 

AT THE OUTSET IT SHOULD BE STATED THAT WHERE A PLAN IS NOT FAIR AND
EQUITABLE AS A MATTER OF LAW IT CANNOT BE APPROVED BY THE COURT EVEN
THOUGH THE PERCENTAGE OF THE VARIOUS CLASSES OF SECURITY HOLDERS
REQUIRED BY SEC. 77B (F) FOR CONFIRMATION OF THE PLAN HAS CONSENTED. 
IT IS CLEAR FROM A READING OF SEC. 77BF)  FN6  THAT THE CONGRESS HAS
REQUIRED BOTH THAT THE REQUIRED PERCENTAGES OF EACH CLASS OF SECURITY
HOLDERS APPROVE THE PLAN AND THAT THE PLAN BE FOUND TO BE "FAIR AND
EQUITABLE."  THE FORMER IS NOT A SUBSTITUTE FOR THE LATTER.  THE COURT
IS NOT MERELY A MINISTERIAL REGISTER OF THE VOTE OF THE SEVERAL CLASSES
OF SECURITY HOLDERS.  ALL THOSE INTERESTED IN THE ESTATE ARE ENTITLED
TO THE COURT'S PROTECTION.  ACCORDINGLY THE FACT THAT THE VAST MAJORITY
OF THE SECURITY HOLDERS HAVE APPROVED THE PLAN IS NOT THE TEST OF
WHETHER THE PLAN IS A FAIR AND EQUITABLE ONE.  THIS IS IN LINE WITH THE
DECISION OF THIS COURT IN TAYLOR V. STANDARD GAS & ELECTRIC CO., 306
U.S. 307, WHICH REVERSED AN ORDER APPROVING A PLAN OF REORGANIZATION
UNDER SEC. 77B, IN SPITE OF THE FACT THAT THE REQUISITE PERCENTAGE OF
THE VARIOUS CLASSES OF SECURITY HOLDERS HAD APPROVED IT, ON THE GROUND
THAT PREFERRED STOCK OF THE DEBTOR CORPORATION WAS INEQUITABLY TREATED
UNDER THE PLAN.  THE CONTRARY CONCLUSION IN SUCH CASES WOULD MAKE THE
JUDICIAL DETERMINATION ON THE ISSUE OF FAIRNESS A MERE FORMALITY AND
WOULD EFFECTIVELY DESTROY THE FUNCTION AND THE DUTY IMPOSED BY THE
CONGRESS ON THE DISTRICT COURTS UNDER SEC. 77B.  THAT FUNCTION AND DUTY
ARE NO LESS HERE THAN THEY ARE IN EQUITY RECEIVERSHIP REORGANIZATIONS,
WHERE THIS COURT SAID, "EVERY IMPORTANT DETERMINATION BY THE COURT IN
RECEIVERSHIP PROCEEDINGS CALLS FOR AN INFORMED, INDEPENDENT JUDGMENT." 
NATIONAL SURETY CO. V. CORIELL, 289 U.S. 426, 436. 

HENCE, IN THIS CASE THE FACT THAT 92.81% IN AMOUNT OF THE BONDS,
99.75% OF THE CLASS A STOCK, AND 90% OF THE CLASS B STOCK HAVE APPROVED
THE PLAN IS AS IMMATERIAL ON THE BASIC ISSUE OF ITS FAIRNESS AS IS THE
FACT THAT PETITIONERS OWN ONLY $18,500 FACE AMOUNT OF A LARGE BOND
ISSUE. 

THE WORDS "FAIR AND EQUITABLE" AS USED IN SEC. 77B (F) ARE WORDS OF
ART WHICH PRIOR TO THE ADVENT OF SEC. 77B HAD ACQUIRED A FIXED MEANING
THROUGH JUDICIAL INTERPRETATIONS IN THE FIELD OF EQUITY RECEIVERSHIP
REORGANIZATIONS.  HENCE, AS IN CASE OF OTHER TERMS OR PHRASES USED IN
THAT SECTION, DUPARQUET HUOT & MONEUSE CO. V. EVANS, 297 U.S. 216, WE
ADHERE TO THE FAMILIAR RULE THAT WHERE WORDS ARE EMPLOYED IN AN ACT
WHICH HAD AT THE TIME A WELL KNOWN MEANING IN THE LAW, THEY ARE USED IN
THAT SENSE UNLESS THE CONTEXT REQUIRES THE CONTRARY.  KECK V. UNITED
STATES, 172 U.S. 434, 446. 

IN EQUITY REORGANIZATION LAW THE TERM "FAIR AND EQUITABLE" INCLUDED,
INTER ALIA, THE RULES OF LAW ENUNCIATED BY THIS COURT IN THE FAMILIAR
CASES OF RAILROAD CO. V. HOWARD, 7 WALL.  392; LOUISVILLE TRUST CO. V.
LOUISVILLE, N.A. & C. RY. CO., 174 U.S. 674; NORTHERN PACIFIC RY. CO.
V. BOYD, 228 U.S. 482; KANSAS CITY TERMINAL RY. CO. V. CENTRAL UNION
TRUST CO., 271 U.S. 445.  THESE CASES DEALT WITH THE PRECEDENCE TO BE
ACCORDED CREDITORS OVER STOCKHOLDERS IN REORGANIZATION PLANS.  FN7  IN
LOUISVILLE TRUST CO. V. LOUISVILLE, N.A. & C. RY. CO., SUPRA, THIS
COURT REAFFIRMED THE "FAMILIAR RULE" THAT "THE STOCKHOLDER'S INTEREST
IN THE PROPERTY IS SUBORDINATE TO THE RIGHTS OF CREDITORS; FIRST OF
SECURED AND THEN OF UNSECURED CREDITORS."  AND IT WENT ON TO SAY THAT
"ANY ARRANGEMENT OF THE PARTIES BY WHICH THE SUBORDINATE RIGHTS AND
INTERESTS OF STOCKHOLDERS ARE ATTEMPTED TO BE SECURED AT THE EXPENSE OF
THE PRIOR RIGHTS OF EITHER CLASS OF CREDITORS COMES WITHIN JUDICIAL
DENUNCIATION" (P. 684).  THIS DOCTRINE IS THE "FIXED PRINCIPLE"
ACCORDING TO WHICH NORTHERN PACIFIC RY. CO. V. BOYD, SUPRA, DECIDED
THAT THE CHARACTER OF REORGANIZATION PLANS WAS TO BE EVALUATED.  AND IN
THE LATTER CASE THIS COURT ADDED, "IF THE VALUE OF THE ROAD JUSTIFIED
THE ISSUANCE OF STOCK IN EXCHANGE FOR OLD SHARES, THE CREDITORS WERE
ENTITLED TO THE BENEFIT OF THAT VALUE, WHETHER IT WAS PRESENT OR
PROSPECTIVE, FOR DIVIDENDS OR ONLY FOR PURPOSES OF CONTROL.  IN EITHER
EVENT IT WAS A RIGHT OF PROPERTY OUT OF WHICH THE CREDITORS WERE
ENTITLED TO BE PAID BEFORE THE STOCKHOLDERS COULD RETAIN IT FOR ANY
PURPOSE WHATEVER."  (P. 508.)  ON THE REAFFIRMATION OF THIS "FIXED
PRINCIPLE" OF REORGANIZATION LAW IN KANSAS CITY TERMINAL RY. CO. V.
CENTRAL UNION TRUST CO., SUPRA, IT WAS SAID THAT "TO THE EXTENT OF
THEIR DEBTS CREDITORS ARE ENTITLED TO PRIORITY OVER STOCKHOLDERS
AGAINST ALL THE PROPERTY OF AN INSOLVENT CORPORATION" (P. 455).  IN
APPLICATION OF THIS RULE OF FULL OR ABSOLUTE PRIORITY THIS COURT
RECOGNIZED CERTAIN PRACTICAL CONSIDERATIONS AND MADE IT CLEAR THAT SUCH
RULE DID NOT "REQUIRE THE IMPOSSIBLE AND MAKE IT NECESSARY TO PAY AN
UNSECURED CREDITOR IN CASH AS A CONDITION OF STOCKHOLDERS RETAINING AN
INTEREST IN THE REORGANIZED COMPANY.  HIS INTEREST CAN BE PRESERVED BY
THE ISSUANCE, ON EQUITABLE TERMS, OF INCOME BONDS OR PREFERRED STOCK." 
NORTHERN PACIFIC RY. CO. V. BOYD, SUPRA, P. 508.  AND THIS PRACTICAL
ASPECT OF THE PROBLEM WAS FURTHER AMPLIFIED IN KANSAS CITY TERMINAL RY.
CO. V. CENTRAL UNION TRUST CO., SUPRA, BY THE STATEMENT THAT "WHEN
NECESSARY, THEY (CREDITORS) MAY BE PROTECTED THROUGH OTHER ARRANGEMENTS
WHICH DISTINCTLY RECOGNIZE THEIR EQUITABLE RIGHT TO BE PREFERRED TO
STOCKHOLDERS AGAINST THE FULL VALUE OF ALL PROPERTY BELONGING TO THE
DEBTOR CORPORATION, AND AFFORD EACH OF THEM FAIR OPPORTUNITY, MEASURED
BY THE EXISTING CIRCUMSTANCES, TO AVAIL HIMSELF OF THIS RIGHT" (PP. 454
455).  AND IT ALSO RECOGNIZED THE NECESSITY AT TIMES OF PERMITTING THE
INCLUSION OF STOCKHOLDERS ON PAYMENT OF CONTRIBUTIONS, EVEN THOUGH THE
DEBTOR COMPANY WAS INSOLVENT.  AS STATED IN KANSAS CITY TERMINAL RY.
CO. V. CENTRAL UNION TRUST CO., SUPRA, P. 455:  "GENERALLY, ADDITIONAL
FUNDS WILL BE ESSENTIAL TO THE SUCCESS OF THE UNDERTAKING, AND IT MAY
BE IMPOSSIBLE TO OBTAIN THEM UNLESS STOCKHOLDERS ARE PERMITTED TO
CONTRIBUTE AND RETAIN AN INTEREST SUFFICIENTLY VALUABLE TO MOVE THEM. 
IN SUCH OR SIMILAR CASES THE CHANCELLOR MAY EXERCISE AN INFORMED
DISCRETION CONCERNING THE PRACTICAL ADJUSTMENT OF THE SEVERAL RIGHTS." 
BUT EVEN SO, PAYMENT OF CASH BY THE STOCKHOLDERS FOR NEW STOCK DID NOT
ITSELF SAVE THE PLAN FROM THE RIGORS OF THE "FIXED PRINCIPLE" OF THE
BOYD CASE, FOR IN THAT CASE THE DECREE WAS STRUCK DOWN WHERE PROVISION
WAS NOT MADE FOR THE UNSECURED CREDITOR AND EVEN THOUGH THE
STOCKHOLDERS PAID CASH FOR THEIR NEW STOCK.  SALES PURSUANT TO SUCH
PLANS WERE VOID, EVEN THOUGH THERE WAS NO FRAUD IN THE DECREE. 
NORTHERN PACIFIC RY. CO. V. BOYD, SUPRA, P. 504.  AS THIS COURT THERE
STATED, P. 502, "THERE IS NO DIFFERENCE IN PRINCIPLE IF THE CONTRACT OF
REORGANIZATION, INSTEAD OF BEING EFFECTUATED BY PRIVATE SALE, IS
CONSUMMATED BY A MASTER'S DEED UNDER A CONSENT DECREE." 

THROUGHOUT THE HISTORY OF EQUITY REORGANIZATIONS THIS FAMILIAR RULE
WAS PROPERLY APPLIED IN PASSING ON OBJECTIONS MADE BY VARIOUS CLASSES
OF CREDITORS THAT JUNIOR INTERESTS WERE IMPROPERLY PERMITTED TO
PARTICIPATE IN A PLAN OR WERE TOO LIBERALLY TREATED THEREIN.  IN SUCH
ADJUDICATIONS THE DOCTRINE OF NORTHERN PACIFIC RY. CO. V. BOYD, SUPRA,
AND RELATED CASES, WAS COMMONLY INCLUDED IN THE PHRASE "FAIR AND
EQUITABLE" OR ITS EQUIVALENT.  AS WE HAVE SAID, THE PHRASE BECAME A
TERM OF ART USED TO INDICATE THAT A PLAN OF REORGANIZATION FULFILLED
THE NECESSARY STANDARDS OF FAIRNESS.  THUS THROUGHOUT THE CASES IN THIS
EARLIER CHAPTER OF REORGANIZATION LAW, WE FIND THE WORDS "EQUITABLE AND
FAIR,"  FN8  "FAIR AND EQUITABLE,"  FN9  "FAIRLY AND EQUITABLY
TREATED," FN10  "ADEQUATE AND EQUITABLE,"  FN11  "JUST, FAIR AND
EQUITABLE"  FN12  AND LIKE PHRASES  FN13 USED TO INCLUDE THE "FIXED
PRINCIPLE" OF THE BOYD CASE, ITS ANTECEDENTS AND ITS SUCCESSORS.  HENCE
WE CONCLUDE, AS HAVE OTHER COURTS,  FN14  THAT THAT DOCTRINE IS FIRMLY
IMBEDDED IN SEC. 77B. 

WE COME THEN TO THE LEGAL QUESTION OF WHETHER THE PLAN HERE IN ISSUE
IS FAIR AND EQUITABLE WITHIN THE MEANING OF THAT PHRASE AS USED IN SEC.
77B. 

WE DO NOT BELIEVE IT IS, FOR THE FOLLOWING REASONS.  HERE THE COURT
MADE A FINDING THAT THE DEBTOR IS INSOLVENT NOT ONLY IN THE EQUITY
SENSE BUT ALSO IN THE BANKRUPTCY SENSE.  ADMITTEDLY THERE ARE ASSETS
NOT IN EXCESS OF $900,000, WHILE THE CLAIMS OF THE BONDHOLDERS FOR
PRINCIPAL AND INTEREST ARE APPROXIMATELY $3,800,000.  HENCE EVEN IF ALL
OF THE ASSETS WERE TURNED OVER TO THE BONDHOLDERS THEY WOULD REALIZE
LESS THAN 25 PERCENT ON THEIR CLAIMS.  YET IN SPITE OF THIS FACT THEY
WILL BE REQUIRED UNDER THE PLAN TO SURRENDER TO THE STOCKHOLDERS 23
PERCENT OF THE VALUE OF THE ENTERPRISE. 

TRUE, THE RELATIVE PRIORITIES OF THE BONDHOLDERS AND THE OLD CLASS A
STOCKHOLDERS ARE MAINTAINED BY VIRTUE OF THE PRIORITIES ACCORDED THE
PREFERRED STOCK WHICH THE BONDHOLDERS ARE TO RECEIVE.  BUT THIS IS NOT
COMPLIANCE WITH THE PRINCIPLE EXPRESSED IN KANSAS CITY TERMINAL RY. CO.
V. CENTRAL UNION TRUST CO., SUPRA, THAT "TO THE EXTENT OF THEIR DEBTS
CREDITORS ARE ENTITLED TO PRIORITY OVER STOCKHOLDERS AGAINST ALL THE
PROPERTY OF AN INSOLVENT CORPORATION," FOR THERE ARE NOT SUFFICIENT
ASSETS TO PAY THE BONDHOLDERS THE AMOUNT OF THEIR CLAIMS.  NOR DOES
THIS PLAN RECOGNIZE THE "EQUITABLE RIGHT" OF THE BONDHOLDERS "TO BE
PREFERRED TO STOCKHOLDERS AGAINST THE FULL VALUE OF ALL PROPERTY
BELONGING TO THE DEBTOR CORPORATION," WITHIN THE MEANING OF THE RULE
ANNOUNCED IN THAT CASE, SINCE THE FULL VALUE OF THAT PROPERTY IS NOT
FIRST APPLIED TO CLAIMS OF THE BONDHOLDERS BEFORE THE STOCKHOLDERS ARE
ALLOWED TO PARTICIPATE.  RATHER IT IS PARTIALLY DIVERTED FOR THE
BENEFIT OF THE STOCKHOLDERS EVEN THOUGH THE BONDHOLDERS WOULD OBTAIN
LESS THAN 25% PAYMENT IF THEY RECEIVED IT ALL.  UNDER THAT THEORY ALL
CLASSES OF SECURITY HOLDERS COULD BE PERPETUATED IN THE NEW COMPANY
EVEN THOUGH THE ASSETS WERE INSUFFICIENT TO PAY - IN NEW BONDS OR STOCK
- THE AMOUNT OWING SENIOR CREDITORS.  SUCH A RESULT IS NOT TENABLE. 

IT IS, OF COURSE, CLEAR THAT THERE ARE CIRCUMSTANCES UNDER WHICH
STOCKHOLDERS MAY PARTICIPATE IN A PLAN OF REORGANIZATION OF AN
INSOLVENT DEBTOR.  THIS COURT, AS WE HAVE SEEN, INDICATED AS MUCH IN
NORTHERN PACIFIC RY. CO. V. BOYD, SUPRA, AND KANSAS CITY TERMINAL RY.
CO. V. CENTRAL UNION TRUST CO., SUPRA.  ESPECIALLY IN THE LATTER CASE
DID THIS COURT STRESS THE NECESSITY, AT TIMES, OF SEEKING NEW MONEY
"ESSENTIAL TO THE SUCCESS OF THE UNDERTAKING" FROM THE OLD
STOCKHOLDERS.  FN15 WHERE THAT NECESSITY EXISTS AND THE OLD
STOCKHOLDERS MAKE A FRESH CONTRIBUTION AND RECEIVE IN RETURN A
PARTICIPATION REASONABLY EQUIVALENT TO THEIR CONTRIBUTION, NO OBJECTION
CAN BE MADE.  BUT IF THESE CONDITIONS ARE NOT SATISFIED THE
STOCKHOLDER'S PARTICIPATION WOULD RUN AFOUL OF THE RULING OF THIS COURT
IN KANSAS CITY TERMINAL RY. CO. V. CENTRAL UNION TRUST CO., SUPRA, THAT
"WHENEVER ASSESSMENTS ARE DEMANDED, THEY MUST BE ADJUSTED WITH THE
PURPOSE OF ACCORDING TO THE CREDITOR HIS FULL RIGHT OF PRIORITY AGAINST
THE CORPORATE ASSETS, SO FAR AS POSSIBLE IN THE EXISTING CIRCUMSTANCES"
(P. 456).  IF, HOWEVER, THOSE CONDITIONS WE HAVE MENTIONED ARE
SATISFIED, THE CREDITOR CANNOT COMPLAIN THAT HE IS NOT ACCORDED "HIS
FULL RIGHT OF PRIORITY AGAINST THE CORPORATE ASSETS."  IF THAT WERE NOT
THE TEST, THEN THE CREDITOR'S RIGHTS COULD BE EASILY DILUTED BY
INADEQUATE CONTRIBUTIONS BY STOCKHOLDERS.  TO THE EXTENT OF THE
INADEQUACY OF THEIR CONTRIBUTIONS THE STOCKHOLDERS WOULD BE IN
PRECISELY THE POSITION WHICH THIS COURT SAID IN NORTHERN PACIFIC RY.
CO. V. BOYD, SUPRA, THE STOCKHOLDERS THERE WERE IN, VIZ., "IN THE
POSITION OF A MORTGAGOR BUYING AT HIS OWN SALE" (P. 504). 

IN VIEW OF THESE CONSIDERATIONS WE BELIEVE THAT TO ACCORD "THE
CREDITOR HIS FULL RIGHT OF PRIORITY AGAINST THE CORPORATE ASSETS" WHERE
THE DEBTOR IS INSOLVENT, THE STOCKHOLDER'S PARTICIPATION MUST BE BASED
ON A CONTRIBUTION IN MONEY OR IN MONEY'S WORTH, REASONABLY EQUIVALENT
IN VIEW OF ALL THE CIRCUMSTANCES TO THE PARTICIPATION OF THE
STOCKHOLDER. 

THE ALLEGED CONSIDERATION FURNISHED BY THE STOCKHOLDERS IN THIS CASE
FALLS FAR SHORT OF MEETING THOSE REQUIREMENTS. 

1.  THE FINDINGS BELOW THAT PARTICIPATION BY THE OLD CLASS A
STOCKHOLDERS WILL BE BENEFICIAL TO THE BONDHOLDERS BECAUSE THOSE
STOCKHOLDERS HAVE "FINANCIAL STANDING AND INFLUENCE IN THE COMMUNITY"
AND CAN PROVIDE A "CONTINUITY OF MANAGEMENT" CONSTITUTE NO LEGAL
JUSTIFICATION FOR ISSUANCE OF NEW STOCK TO THEM.  SUCH ITEMS ARE
ILLUSTRATIVE OF A HOST OF INTANGIBLES WHICH, IF RECOGNIZED AS ADEQUATE
CONSIDERATION FOR ISSUANCE OF STOCK TO VALUELESS JUNIOR INTERESTS,
WOULD SERVE AS EASY EVASIONS OF THE PRINCIPLE OF FULL OR ABSOLUTE
PRIORITY OF NORTHERN PACIFIC RY. CO. V. BOYD, SUPRA, AND RELATED
CASES.  SUCH ITEMS, ON FACTS PRESENT HERE, ARE NOT ADEQUATE
CONSIDERATION FOR ISSUANCE OF THE STOCK IN QUESTION.  ON THE FACTS OF
THIS CASE THEY CANNOT POSSIBLY BE TRANSLATED INTO MONEY'S WORTH
REASONABLY EQUIVALENT TO THE PARTICIPATION ACCORDED THE OLD
STOCKHOLDERS.  THEY HAVE NO PLACE IN THE ASSET COLUMN OF THE BALANCE
SHEET OF THE NEW COMPANY.  THEY REFLECT MERELY VAGUE HOPES OR
POSSIBILITIES.  FN16  AS SUCH, THEY CANNOT BE THE BASIS FOR ISSUANCE OF
STOCK TO OTHERWISE VALUELESS INTERESTS.  THE RIGOROUS STANDARDS OF THE
ABSOLUTE OR FULL PRIORITY DOCTRINE OF THE BOYD CASE WILL NOT PERMIT
VALUELESS JUNIOR INTERESTS TO PERPETUATE THEIR POSITION IN AN
ENTERPRISE ON SUCH EPHEMERAL GROUNDS.  FN17 

2.  THE DISTRICT COURT'S FURTHER FINDING THAT IF THE BONDHOLDERS WERE
TO FORECLOSE NOW THEY WOULD RECEIVE "SUBSTANTIALLY LESS THAN THE
PRESENT APPRAISED VALUE" OF THE ASSETS OF THE DEBTOR CORPORATION IS NO
SUPPORT FOR INCLUSION OF THE OLD STOCKHOLDERS IN THE PLAN.  THE FACT
THAT BONDHOLDERS MIGHT FARE WORSE AS A RESULT OF A FORECLOSURE AND
LIQUIDATION THAN THEY WOULD BY TAKING A DEBTOR'S PLAN UNDER SEC. 77B
CAN HAVE NO RELEVANT BEARING ON WHETHER A PROPOSED PLAN IS "FAIR AND
EQUITABLE" UNDER THAT SECTION.  SUBMISSION TO COERCION IS NOT THE
APPLICATION OF "FAIR AND EQUITABLE" STANDARDS.  SUCH A PROPOSITION
WOULD NOT ONLY DRASTICALLY IMPAIR THE STANDARDS OF "FAIR AND EQUITABLE"
AS USED IN SEC. 77B; IT WOULD PERVERT THE FUNCTION OF THAT ACT.  ONE OF
THE PURPOSES OF SEC. 77B WAS TO AVOID THE CONSEQUENCES TO DEBTORS AND
CREDITORS OF FORECLOSURES, LIQUIDATIONS, AND FORCED SALES WITH THEIR
DRASTIC DEFLATIONARY EFFECTS.  FN18  TO HOLD THAT IN A SEC. 77B
REORGANIZATION CREDITORS OF A HOPELESSLY INSOLVENT DEBTOR MAY BE FORCED
TO SHARE THE ALREADY INSUFFICIENT ASSETS WITH STOCKHOLDERS BECAUSE
APART FROM REHABILITATION UNDER THAT SECTION THEY WOULD SUFFER A WORSE
FATE, WOULD DISREGARD THE STANDARDS OF "FAIR AND EQUITABLE"; AND WOULD
RESULT IN IMPAIRMENT OF THE ACT TO THE EXTENT THAT IT RESTORED SOME OF
THE CONDITIONS WHICH THE CONGRESS SOUGHT TO AMELIORATE BY THAT REMEDIAL
LEGISLATION. 

3.  THE CONCLUSION OF THE DISTRICT COURT THAT THE VIRTUAL ABROGATION
OF THE AGREEMENT DEFERRING FORECLOSURE UNTIL 1944("THE PRINCIPAL
VALUABLE CONSIDERATION" GIVEN TO THE BONDHOLDERS BY THE STOCKHOLDERS)
JUSTIFIED PARTICIPATION BY THE STOCKHOLDERS IN THE PLAN IS LIKEWISE
ERRONEOUS. 

WHAT WERE THE RIGHTS OF THE BONDHOLDERS UNDER THE SUPPLEMENTAL
INDENTURE EXECUTED IN 1930 WE CANNOT DETERMINE.  THAT INDENTURE IS NOT
IN THE ABBREVIATED RECORD BEFORE US.  THE DISTRICT COURT FOUND THAT FOR
ALL PRACTICAL PURPOSES THE BONDHOLDERS COULD NOT FORECLOSE UNTIL 1944. 
FROM THE FINDINGS BELOW WE CONCLUDE THAT THAT FOLLOWED AS A CONSEQUENCE
OF MAKING INTEREST PAYABLE ONLY IF EARNED.  ON THIS RECORD IT DOES NOT
APPEAR WHETHER OR NOT THERE MIGHT BE OTHER EVENTS OF DEFAULT - SUCH AS
NON-PAYMENT OF SINKING FUNDS - GIVING BONDHOLDERS OR THE TRUSTEE THE
RIGHT TO FORECLOSE OR GIVING BONDHOLDERS OR THE TRUSTEE THE RIGHT TO
ACCELERATE THE MATURITY OF THE BONDS SO THAT SUITS COULD BE BROUGHT
THEREON.  HENCE, WE MUST ASSUME, AS THE DISTRICT COURT FOUND, THAT THE
BONDHOLDERS AND THE TRUSTEE COULD NOT TAKE POSSESSION OF THE PROPERTY
THROUGH FORECLOSURE OR OTHERWISE UNTIL THE MATURITY OF THE BONDS.  AND
AS A COROLLARY THEREOF WE LIKEWISE ASSUME THAT THE STOCKHOLDERS, AT
LEAST SO FAR AS THE BONDHOLDERS WERE INVOLVED, COULD KEEP THEIR
MANAGEMENT GROUP IN POSSESSION AND CONTROL UNTIL THAT TIME.  AND WE
ASSUME THAT THIS RIGHT OR POWER ON THE PART OF THE STOCKHOLDERS TO KEEP
POSSESSION UNTIL 1944 WAS FOR THEM A THING OF VALUE, THOUGH THERE IS NO
FINDING THAT THE OLD STOCK HAD ANY VALUE, PRESENT OR PROSPECTIVE. 

BUT WE CANNOT CONCLUDE THAT THAT RIGHT SURVIVED THE COMMENCEMENT OF
THE PROCEEDINGS UNDER SEC. 77B.  A DEBTOR AS WELL AS A CREDITOR WHO
INVOKES THE AID OF THE FEDERAL COURTS IN REORGANIZATION OR
REHABILITATION UNDER SEC. 77B ASSUMES ALL OF THE CONSEQUENCES WHICH
FLOW FROM THAT JURISDICTION.  ONCE THE PROPERTY IS IN THE HANDS OF THE
COURT PRIVATE RIGHTS AS RESPECT THAT RES ARE SUBJECT TO THE SUPERIOR
DOMINION OF THE COURT AND ARE TO BE ADJUDICATED PURSUANT TO THE
STANDARDS PRESCRIBED BY THE CONGRESS.  AS A RESULT OF SUCH PROCEEDINGS
THE HAND OF ALL EXECUTIONS OR LEVIES MAY BE STAYED.  FN19  THE COURT
ACQUIRES "EXCLUSIVE JURISDICTION OF THE DEBTOR AND ITS PROPERTY
WHEREVER LOCATED FOR THE PURPOSES OF THIS SECTION."  FN20  THE COURT
NEED NOT KEEP THE DEBTOR IN POSSESSION BUT MAY SUBSTITUTE FOR THE OLD
MANAGEMENT A TRUSTEE; OR IF THE OLD MANAGEMENT IS RETAINED IT OPERATES
THE BUSINESS "SUBJECT AT ALL TIMES TO THE CONTROL OF THE JUDGE, AND TO
SUCH LIMITATIONS, RESTRICTIONS, TERMS, AND CONDITIONS AS THE JUDGE MAY
FROM TIME TO TIME IMPOSE AND PRESCRIBE."  FN21  THUS, WHILE THE
PROPERTY REMAINS IN THE HANDS OF THE COURT, AS IT DOES UNTIL DISMISSAL
OR FINAL DECREE ON CONFIRMATION, THE DEBTOR, THOUGH LEFT IN POSSESSION
BY THE JUDGE, DOES NOT OPERATE IT, AS IT DID BEFORE THE FILING OF THE
PETITION, UNFETTERED AND WITHOUT RESTRAINT.  THE CONTROL OF THE COURT
IS THEN PERVASIVE.  FN22  FURTHERMORE, STOCKHOLDERS AND OTHER JUNIOR
INTERESTS MAY BE EXCLUDED FROM ANY PLAN OF REORGANIZATION IF THE COURT
FINDS THAT THE DEBTOR IS INSOLVENT.  IN RE 620 CHURCH STREET BUILDING
CORP., 299 U.S. 24.  AND ON FACTS SUCH AS EXIST HERE, THESE JUNIOR
INTERESTS MUST BE EXCLUDED UNLESS THEY FURNISH ADEQUATE CONSIDERATION
FOR THE INTEREST WHICH THEY OBTAIN IN THE NEW COMPANY.  AND ONCE THE
JURISDICTION OF THE COURT HAS BEEN INVOKED, WHETHER BY THE DEBTOR OR BY
A CREDITOR, THAT PETITIONER CANNOT WITHDRAW AND OUST THE COURT OF
JURISDICTION.  FN23  HE INVOKES THAT JURISDICTION RISKING ALL OF THE
DISADVANTAGES WHICH MAY FLOW TO HIM AS A CONSEQUENCE, AS WELL AS
GAINING ALL OF THE BENEFITS.  ONE OF THOSE DISADVANTAGES FROM THE
VIEWPOINT OF THE DEBTOR AND ITS STOCKHOLDERS IS THE APPROVAL OF A PLAN
OF REORGANIZATION WHICH ELIMINATES THEM COMPLETELY.  FN24  ACCORDINGLY,
RESPONDENT'S ASSERTION IN THIS CASE THAT THE MAJOR CONTRIBUTION OF
THESE STOCKHOLDERS JUSTIFYING THEIR INCLUSION IN THE PLAN WAS THE
WAIVER OF THEIR RIGHT TO DEFER OR PUT OFF FORECLOSURE UNTIL 1944, I.E.,
TO REMAIN IN POSSESSION, DOES NOT STAND ANALYSIS.  THE RIGHT TO REMAIN
IN UNMOLESTED DOMINION AND CONTROL OVER THE PROPERTY WAS NECESSARILY
WAIVED OR ABANDONED ON INVOKING THE JURISDICTION OF THE FEDERAL COURTS
IN THESE PROCEEDINGS.  WHEN THAT JURISDICTION ATTACHED, THE COURT
RATHER THAN THE STOCKHOLDERS WAS IN CONTROL WITH ALL OF THE POWERS AND
DUTIES WHICH THAT ENTAILED UNDER SEC. 77B.  CERTAINLY THE SURRENDER OF
A RIGHT THUS WAIVED IS NOT ADEQUATE CONSIDERATION FOR THE DILUTION OF
THE BONDHOLDERS' PRIORITIES WHICH THIS PLAN WOULD EFFECT. 

AND THERE IS A FURTHER REASON WHY THIS RESULT NECESSARILY FOLLOWS, IF
THE WILL OF THE CONGRESS AS EXPRESSED IN SEC. 77B IS NOT TO BE THWARTED
AND IF THE INTEGRITY OF SUCH PROCEEDINGS IS TO BE MAINTAINED.  AS WE
HAVE SAID, THIS PLAN HAD ITS ORIGIN IN AN ENDEAVOR ON THE PART OF THE
DEBTOR IN 1937 TO EFFECT A VOLUNTARY REORGANIZATION.  A PLAN WAS
PROPOSED BY THE DEBTOR WHICH WAS THE SAME AS THAT HERE INVOLVED EXCEPT
FOR THE AMOUNT AND NATURE OF THE STOCK TO BE RECEIVED BY THE
BONDHOLDERS.  FN25  THAT PLAN CONTAINED TWO METHODS FOR ITS
CONSUMMATION.  THE FIRST WAS BY MEANS OF AN AMENDMENT TO THE TRUST
INDENTURE AND A RECAPITALIZATION OF THE DEBTOR, A METHOD TO BE FOLLOWED
IF THE BOARD FELT THAT SUFFICIENT APPROVALS HAD BEEN OBTAINED.  THE
SECOND WAS BY MEANS OF SEC. 77B.  OVER 80% OF THE BONDHOLDERS AND OVER
90% OF THE STOCK APPROVED THE ORIGINAL PLAN.  THEREUPON THE DEBTOR
FILED ITS PETITION IN SEC. 77B.  THEREAFTER, THE DEBTOR FILED A
MODIFICATION OF THE PLAN TO WHICH THE ASSENTS, HERE RELIED UPON, WERE
OBTAINED.  FN26  THUS RESPONDENT ARGUES THAT SINCE THE PLAN OF
REORGANIZATION WAS ENTERED INTO BETWEEN THE BONDHOLDERS AND THE
STOCKHOLDERS BEFORE INSTITUTION OF THE REORGANIZATION PROCEEDINGS UNDER
SEC. 77B, THE CONSIDERATION FLOWING FROM THE STOCKHOLDERS HAD BEEN
FURNISHED AND THE INTERESTS OF THE BONDHOLDERS AND STOCKHOLDERS IN THE
ASSETS OF THE DEBTOR HAD BEEN FIXED PRIOR TO THE FILING OF THE
PETITION.  IN FACT, RESPONDENT FRANKLY INSISTS THAT THE
STOCKHOLDERS'"RIGHT OF PARTICIPATION WAS SECURED BY CONTRACT BEFORE,
AND AS A CONDITION PRECEDENT TO, THE INSTITUTION OF THE 77B
PROCEEDINGS." 

BUT THE MERE STATEMENT OF THIS PROPOSITION IS ITS OWN REFUTATION.  IF
THE REORGANIZATION COURT WERE BOUND BY SUCH CONVENTIONS OF THE PARTIES,
IT WOULD BE EFFECTIVELY OUSTED OF IMPORTANT DUTIES WHICH THE ACT PLACES
ON IT.  FEDERAL COURTS ACTING UNDER SEC. 77B WOULD BE REQUIRED TO PLACE
THEIR IMPRIMATUR ON PLANS OF REORGANIZATION WHICH DISPOSED OF THE
ASSETS OF A COMPANY NOT IN ACCORD WITH THE STANDARDS OF "FAIR AND
EQUITABLE" BUT IN COMPLIANCE WITH AGREEMENTS WHICH THE REQUIRED
PERCENTAGES OF SECURITY HOLDERS HAD PREVIOUSLY MADE.  SUCH PROCEDURE
WOULD DEPRIVE SCATTERED AND UNORGANIZED SECURITY HOLDERS OF THE
PROTECTION WHICH THE CONGRESS HAD PROVIDED THEM UNDER SEC. 77B.  THE
SCOPE OF THE DUTIES AND POWERS OF THE COURT WOULD BE DELIMITED BY THE
BARGAIN WHICH REORGANIZERS HAD BEEN ABLE TO MAKE WITH SECURITY HOLDERS
BEFORE THEY ASKED THE INTERCESSION OF THE COURT IN EFFECTUATING THEIR
PLAN.  MINORITIES WOULD HAVE THEIR FATE DECIDED NOT BY THE COURT IN
APPLICATION OF THE LAW OF THE LAND AS PRESCRIBED IN SEC. 77B, BUT BY
THE FORCES UTILIZED BY REORGANIZERS IN PRESCRIBING THE CONDITIONS
PRECEDENT ON WHICH THE BENEFITS OF THE STATUTE COULD BE OBTAINED.  NO
CONDITIONS PRECEDENT TO ENJOYMENT OF THE BENEFITS OF SEC. 77B CAN BE
PROVIDED EXCEPT BY THE CONGRESS.  TO HOLD OTHERWISE WOULD BE TO ALLOW
REORGANIZERS TO REWRITE IT SO AS TO BEST SERVE THEIR OWN ENDS.  FN27 

4.  THE HOLDING OF THE DISTRICT COURT THAT THE VALUE TO THE
BONDHOLDERS OF MAINTAINING THE DEBTOR AS A GOING CONCERN AND OF
AVOIDING LITIGATION WITH THE OLD STOCKHOLDERS JUSTIFIES THE INCLUSION
OF THE LATTER IN THE PLAN IS LIKEWISE ERRONEOUS.  THE CONCLUSION OF THE
DISTRICT COURT THAT AVOIDANCE OF LITIGATION WITH THE STOCKHOLDERS GAVE
VALIDITY TO THEIR CLAIM FOR RECOGNITION IN THE PLAN INVOLVES A
MISCONCEPTION OF THE DUTIES AND RESPONSIBILITIES OF THE COURT IN THESE
PROCEEDINGS.  WHATEVER MIGHT BE THE STRATEGIC OR NUISANCE VALUE OF SUCH
PARTIES OUTSIDE OF SEC. 77B IS IRRELEVANT TO THE DUTIES OF THE COURT IN
CONFIRMING OR DISAPPROVING A PLAN UNDER THAT SECTION.  IN THESE
PROCEEDINGS THERE IS NO OCCASION FOR THE COURT TO YIELD TO SUCH
PRESSURES.  IF THE PRIORITIES OF CREDITORS WHICH THE LAW PROTECTS ARE
NOT TO BE DILUTED, IT IS THE CLEAR DUTY OF THE COURT TO RESIST ALL SUCH
ASSERTIONS.  OF COURSE, THIS IS NOT TO INTIMATE THAT COMPROMISE OF
CLAIMS IS NOT ALLOWABLE UNDER SEC. 77B.  THERE FREQUENTLY WILL BE
SITUATIONS INVOLVING CONFLICTING CLAIMS TO SPECIFIC ASSETS WHICH MAY,
IN THE DISCRETION OF THE COURT, BE MORE WISELY SETTLED BY COMPROMISE
RATHER THAN BY LITIGATION.  THUS, AMBIGUITIES IN THE WORDING OF TWO
INDENTURES MAY MAKE PLAUSIBLE THE CLAIM OF ONE CLASS OF CREDITORS TO AN
EXCLUSIVE OR PRIOR RIGHT TO CERTAIN ASSETS AS AGAINST THE OTHER CLASS
IN SPITE OF THE FACT THAT THE LATTER'S CLAIM FLOWS FROM A FIRST
MORTGAGE. 

FN28  CLOSE QUESTIONS OF INTERPRETATIONS OF AFTERACQUIRED PROPERTY
CLAUSES IN MORTGAGES, PREFERENCES IN STOCK CERTIFICATES, DIVISIONAL
MORTGAGES AND THE LIKE WILL GIVE RISE TO HONEST DOUBTS AS TO WHICH
SECURITY HOLDERS HAVE FIRST CLAIM TO CERTAIN ASSETS.  SETTLEMENT OF
SUCH CONFLICTING CLAIMS TO THE RES IN THE POSSESSION OF THE COURT IS A
NORMAL PART OF THE PROCESS OF REORGANIZATION.  IN SANCTIONING SUCH
SETTLEMENTS THE COURT IS NOT BOWING TO NUISANCE CLAIMS; IT IS
ADMINISTERING THE PROCEEDINGS IN AN ECONOMICAL AND PRACTICAL MANNER. 
BUT THAT IS NOT THE SITUATION HERE.  AS A RESULT OF THE FILING OF THE
PETITION IN THIS CASE, THE COURT, NOT THE STOCKHOLDERS, ACQUIRED
EXCLUSIVE DOMINION AND CONTROL OVER THE ESTATE.  HENCE, ANY STRATEGIC
POSITION OCCUPIED BY THE STOCKHOLDERS PRIOR TO THESE PROCEEDINGS
VANISHED ONCE THE COURT INVOKED ITS JURISDICTION.  THREATS BY
STOCKHOLDERS OF THE KIND HERE IN QUESTION ARE MERELY THREATS TO THE
JURISDICTION OF THE COURT, WHICH JURISDICTION THESE SELFSAME
STOCKHOLDERS INVOKED FOR THEIR BENEFIT WHEN THEY CAUSED THE DEBTOR'S
PETITION TO BE FILED.  CONSEQUENTLY, THESE CLAIMS OF THE STOCKHOLDERS
ARE, AS WE HAVE SAID, ENTITLED TO NO MORE DIGNITY THAN ANY CLAIM BASED
UPON SHEER NUISANCE VALUE. 

IN THIS CONNECTION IT SHOULD BE OBSERVED THAT THE FINDING OF THE
COURT THAT IT WAS IMPORTANT TO ADMIT THE STOCKHOLDERS TO PARTICIPATION
IN THE PLAN SO AS TO MAINTAIN THE DEBTOR AS A GOING CONCERN AND THUS
PROTECT THE BONDHOLDERS WAS BASED UPON A MISCONCEPTION OF ITS LEGAL
POWERS AND DUTIES.  FOR THE COURT ASSUMED THAT THE ONLY ALTERNATIVE TO
ACCEPTANCE OF THIS DEBTOR'S PLAN WAS A DISMISSAL OF THE PROCEEDING OR A
LIQUIDATION.  BUT THIS IS NOT TRUE.  IN THE FIRST PLACE, NO SPECIAL
PERQUISITES (OF CONSEQUENCE HERE) FLOW TO STOCKHOLDERS BY VIRTUE OF THE
FACT THAT THE PROCEEDINGS ARE INSTITUTED BY A VOLUNTARY RATHER THAN AN
INVOLUNTARY PETITION.  THE CRITERIA FOR EXCLUSION OR INCLUSION OF
STOCKHOLDERS IN A PLAN ARE PRECISELY THE SAME IN BOTH SITUATIONS.  IN
PRACTICE IT IS NOT INFREQUENT TO FIND PROCEEDINGS WHICH START WITH A
DEBTOR'S PETITION ENDING UP WITH PLANS OF REORGANIZATION WHICH EXCLUDE
STOCKHOLDERS.  READING HOTEL CORP. V. PROTECTIVE COMMITTEE, 89 F.2D
53.  IN THE SECOND PLACE FAILURE TO ACCEPT THIS PLAN DOES NOT FORCE
DISMISSAL OR LIQUIDATION.  SECTION 77B (C)(8) GIVES THE COURT EXPLICIT
POWERS WHERE "A PLAN OF REORGANIZATION IS NOT PROPOSED OR ACCEPTED
WITHIN SUCH REASONABLE PERIOD AS THE JUDGE MAY FIX" EITHER TO "EXTEND
SUCH PERIOD" OR TO "DISMISS THE PROCEEDING" OR, WITH EXCEPTIONS NOT
RELEVANT HERE, TO CAUSE LIQUIDATION, SUCH CHOICE TO BE MADE "AS THE
INTERESTS OF THE CREDITORS AND STOCKHOLDERS MAY EQUITABLY REQUIRE." 
ACCORDINGLY, DISMISSAL HAS NOT INFREQUENTLY BEEN PROPERLY DENIED.  IN
RE BUSH TERMINAL CO., 84 F.2D 984.  AND IN THIS CASE THERE HAS BEEN NO
SHOWING THAT A PLAN WHICH IS NOT ONLY FAIR AND EQUITABLE BUT ALSO MEETS
THE OTHER REQUIREMENTS OF THE ACT CANNOT BE ADOPTED NOR THAT ALL
REASONABLE TIME FOR PROPOSAL OF SUCH ALTERNATIVE PLANS HAS EXPIRED. 

WE THEREFORE HOLD THAT THE PLAN IS NOT FAIR AND EQUITABLE AND THAT
THE JUDGMENT BELOW MUST BE AND IS REVERSED. 

FN1  ONE INVOLVES AN INTERLOCUTORY ORDER AND THE OTHER A FINAL ORDER
CONFIRMING A PLAN OF REORGANIZATION UNDER SEC. 77B OF THE BANKRUPTCY
ACT. 

FN2  OTHER LIABILITIES, NOT MATERIAL HERE, ARE $6,075.94 OF CURRENT
ACCOUNTS PAYABLE AND $496,899.76 DUE THE LOS ANGELES SHIPBUILDING AND
DRYDOCK CORPORATION. 

FN3  A LARGE BLOCK OF CLASS B STOCK WAS ESCROWED UNDER A MANAGEMENT
CONTRACT WITH ONE ARMES TO BE DELIVERED TO HIM WHEN ALL THE BONDS WERE
RETIRED AND THE CLASS A STOCKHOLDERS WERE PAID BACK THEIR $400,000 PLUS
INTEREST IN THE FORM OF DIVIDENDS.  BUT THIS MANAGEMENT CONTRACT WAS
LATER TERMINATED AND THE ESCROWED CLASS B STOCK WAS RETURNED TO THE
DEBTOR AND CANCELLED.  CLASS A STOCK WAS PREFERRED TO CLASS B IN THE
EVENT OF LIQUIDATION TO THE AMOUNT OF $400,000 AND INTEREST. 

FN4  THE ASSETS OF THE DEBTOR, EXCEPT THE CAPITAL STOCK OF TWO
SUBSIDIARIES WHICH HAVE ASSETS OF SOME, THOUGH SLIGHT, VALUE WILL ALSO
BE TRANSFERRED TO THE NEW COMPANY.  THE ASSETS OF THESE TWO
SUBSIDIARIES WILL BE LIQUIDATED AND THE PROCEEDS DISTRIBUTED PRO RATA
AMONG BONDHOLDERS.  THE ASSETS OF THE OTHER THREE SUBSIDIARIES WILL
ALSO APPARENTLY BE ACQUIRED BY THE NEW COMPANY. 

FN5  NO UNDERWRITING OF THESE FUNDS IS PROVIDED AND NO DISCLOSURE IS
MADE AS TO HOW THE ADDITIONAL FUNDS ARE TO BE RAISED. 

FN6  IT PROVIDES IN PART:  AFTER HEARING SUCH OBJECTIONS AS MAY BE
MADE TO THE PLAN, THE JUDGE SHALL CONFIRM THE PLAN IF SATISFIED THAT
(1) IT IS FAIR AND EQUITABLE AND DOES NOT DISCRIMINATE UNFAIRLY IN
FAVOR OF ANY CLASS OF CREDITORS OR STOCKHOLDERS, AND IS FEASIBLE; (2)
IT COMPLIES WITH THE PROVISIONS OF SUBDIVISION (B) OF THIS SECTION; (3)
IT HAS BEEN ACCEPTED AS REQUIRED BY THE PROVISIONS OF SUBDIVISION (E),
CLAUSE (1) OF THIS SECTION; ...  " 

FN7  FOR ANALYSES AND REVIEWS OF THESE CASES AS APPLIED TO EQUITY
REORGANIZATIONS OR REORGANIZATIONS UNDER SEC. 77B AND SEC. 77 OF THE
BANKRUPTCY ACT SEE FRANK, SOME REALISTIC REFLECTIONS ON SOME ASPECTS OF
CORPORATE REORGANIZATION, 19 VA. L. REV. 541; SWAINE, REORGANIZATION OF
CORPORATIONS:  CERTAIN DEVELOPMENTS OF THE LAST DECADE, 27 COL. L. REV.
901; SPAETH AND WINKS, THE BOYD CASE AND SECTION 77, 32 ILL. L. REV.
769; BONBRIGHT AND BERGERMAN, TWO RIVAL THEORIES OF PRIORITY RIGHTS OF
SECURITY HOLDERS IN A CORPORATE REORGANIZATION, 28 COL. L. REV. 127;
FRIENDLY, SOME COMMENTS ON THE CORPORATE REORGANIZATION ACT, 48 HARV.
L. REV. 39; 2 GERDES ON CORPORATE REORGANIZATIONS, SEC. 1084. 

FN8  JAMESON V. GUARANTY TRUST CO., 20 F.2D 808, 815, CERTIORARI
DENIED 275 U.S. 569. 

FN9  FLERSHEM V. NATIONAL RADIATOR CORP., 64 F.2D 847, 852, REV'D 290
U.S. 504. 

FN10  P.R. WALSH TIE & TIMBER CO. V. MISSOURI PACIFIC RY. CO., 280 F.
38, 44. 

FN11  MOUNTAIN STATES POWER CO. V. A.L. JORDAN LUMBER CO., 293 F.
502, 506. 

FN12  ST. LOUIS-SAN FRANCISCO RY. CO. V. MCELVAIN, 253 F. 123, 134. 
SEE ALSO GUARANTY TRUST CO. V. MISSOURI PACIFIC RY. CO., 238 F. 812,
816, 819. 

FN13  NORTHERN PACIFIC RY. CO. V. BOYD, SUPRA, SPOKE OF A "FAIR"
OFFER TO THE CREDITOR AND A "JUST REORGANIZATION" AS THE PREREQUISITE
TO VALIDITY OF THE PLAN (P. 508).  KANSAS CITY TERMINAL RY. CO. V.
CENTRAL UNION TRUST CO., SUPRA, SAID THAT THE OFFER TO THE CREDITOR HAD
TO BE "FAIR AND BINDING" (P. 452). 

FN14  SEE IN RE DAY & MEYER, MURRAY & YOUNG, 93 F.2D 657; TELLIER V.
FRANKS LAUNDRY CO., 101 F.2D 561; IN RE PHILADELPHIA & READING COAL &
IRON CO., 105 F.2D 357; IN RE NEW YORK RAILWAYS CORP., 82 F.2D 739,
744; 2 GERDES ON CORPORATE REORGANIZATIONS, SEC. 1085.  INTIMATIONS TO
THE CONTRARY, DOWNTOWN INVESTMENT ASSN. V. BOSTON METROPOLITAN
BUILDINGS, INC., 81 F.2D 314, 323-324; IN RE A.C. HOTEL CO., 93 F.2D
841, ARE NOT TENABLE. 

THE STATUTORY SCHEME OF SEC. 77B (IN THOSE RESPECTS WHICH ARE
MATERIAL HERE) IS IN SHARP CONTRAST TO THAT WHICH WAS PROVIDED FOR
COMPOSITIONS UNDER FORMER SEC. 12.  THIS COURT SAID IN CALLAGHAN V.
RECONSTRUCTION FINANCE CORP., 297 U.S. 464, 470:  "REORGANIZATIONS NOW
PERMITTED UNDER SEC. 77B PRESENT CERTAIN RESEMBLANCES TO COMPOSITIONS
UNDER SEC. 12, WHICH HAVE BEEN COMMENTED UPON AS SUPPORTING THE
CONSTITUTIONALITY OF THE REORGANIZATION PROVISIONS OF SEC. 77 OR SEC.
77B.  ...  BUT SEC. 77B CONTEMPLATES A PROCEDURE AND RESULTS NOT
PERMISSIBLE UNDER SEC. 12.  REORGANIZATIONS ARE NOWHERE REFERRED TO IN
THE STATUTE AS COMPOSITIONS."  UNDER SEC. 12(A)(AS IT EXISTED AT THE
TIME SEC. 77B WAS ENACTED) ONLY A "BANKRUPT" COULD OFFER "TERMS OF
COMPOSITION TO HIS CREDITORS."  UNDER SEC. 77B (D) PLANS MAY BE
PROPOSED NOT ONLY BY THE DEBTOR BUT ALSO BY A DESIGNATED PERCENTAGE OF
THE CREDITORS OR, WHERE THE DEBTOR IS NOT FOUND TO BE INSOLVENT, BY A
SPECIFIED PERCENTAGE OF STOCKHOLDERS.  SECTION 12(D) AS IT THEN EXISTED
PROVIDED THAT THE JUDGE "SHALL CONFIRM A COMPOSITION IF SATISFIED"
INTER ALIA THAT "IT IS FOR THE BEST INTERESTS OF THE CREDITORS."  SEE
FLEISCHMANN & DEVINE, INC. V. SAUL WOLFSON DRY GOODS CO., 299 F. 15. 
THE "FAIR AND EQUITABLE" STANDARD EMPLOYED IN SEC. 77B WAS NOT THEN
PRESENT IN SEC. 12.  CONSENT BY THE DEBTOR TO THE COMPOSITION WAS
IMPLICIT IN FORMER SEC. 12(CF. IN RE BRYER, 281 F. 812).  BUT UNDER
SEC. 77B APPROVAL OF A PLAN BY SECURITY HOLDERS WHO HAVE NO EQUITY IN
THE ENTERPRISE IS UNNECESSARY.  IN RE 620 CHURCH STREET BUILDING CORP.,
299 U.S. 24.  THE GENERAL VIEW WAS WELL EXPRESSED IN IN RE DUTCH
WOODCRAFT SHOPS, 14 F.SUPP.  467, 469, "THE PRESERVATION OF BUSINESS
ENTERPRISES MUST NOT BE AT THE EXPENSE OF CREDITORS, AND THE PROVISIONS
OF SECTION 77B SHOULD NOT BE TAKEN ADVANTAGE OF TO EFFECT WHAT, IN
FACT, AMOUNTS TO A COMPOSITION UNDER SECTION 12." 

THE CHANDLER ACT, C. 10(52 STAT. 840) APPROVED JUNE 22, 1938, NOW
SUPPLANTS SEC. 77B.  VARIOUS SUBSTANTIAL CHANGES IN THE PROVISIONS OF
SEC. 77B HAVE BEEN MADE THEREIN.  BUT THE STANDARD OF "FAIR AND
EQUITABLE" AS USED IN SEC. 77B REMAINS UNALTERED AS ONE OF THE CRITERIA
NECESSARY FOR CONFIRMATION OF A PLAN OF REORGANIZATION.  SEC. 221(2). 

FN15  THIS NEW MONEY WAS COMMONLY NECESSARY IN EQUITY REORGANIZATIONS
NOT ONLY TO PROVIDE NEW WORKING CAPITAL BUT ALSO TO PAY DISSENTING
CREDITORS.  SEE WEINER, CONFLICTING FUNCTIONS OF THE UPSET PRICE IN A
CORPORATE REORGANIZATION, 27 COL. L. REV. 132. 

LIKE CONSIDERATIONS ARE RELEVANT IN REORGANIZATIONS UNDER SEC. 77B. 
AS STATED BY THE COURT IN IN RE DUTCH WOODCRAFT SHOPS, 14 F.SUPP.  467,
471: 

"CIRCUMSTANCES MAY EXIST WHERE THE SUCCESS OF AN UNDERTAKING REQUIRES
THAT NEW MONEY BE FURNISHED AND WHERE THE FORMER STOCKHOLDERS ARE THE
ONLY OR MOST FEASIBLE SOURCE OF THE NEW CAPITAL.  IN SUCH INSTANCES,
THE COURT MAY RECOGNIZE AS FAIR AND EQUITABLE A PLAN WHICH INCLUDES
CONTRIBUTIONS OF NEW MONEY BY STOCKHOLDERS, PROVIDED IT SATISFACTORILY
APPEARS THAT FULL RECOGNITION HAS BEEN GIVEN TO THE VALUE OF CREDITORS'
CLAIMS AGAINST THE PROPERTY." 

FN16  ON COMPARABLE FACTS A LIKE CONCLUSION WAS REACHED IN IN RE
BARCLAY PARK CORP., 90 F.2D 595, WHERE THE COURT SAID, P. 598: 

"IT IS ARGUED THAT THE STOCKHOLDERS REPRESENT THE PRESENT MANAGEMENT
OF THE HOTEL AND THAT THE MANAGEMENT IS VALUABLE AND INDEED NECESSARY
TO THE ENTERPRISE AND THAT THE MANAGER-STOCKHOLDERS WILL 'WALK OUT' IF
THE PROPOSED PLAN DOES NOT GO THROUGH AND LEAVE THE HOTEL TO ITS FATE. 
BUT THERE IS NO BINDING AGREEMENT ON THEIR PART TO REMAIN WHICH MIGHT
AFFORD A JUSTIFICATION FOR GIVING THEM A STOCK INTEREST AND, IF THEIR
MANAGERIAL SKILL IS VITAL TO THE SUCCESS OF THE HOTEL, ANY STOCK ISSUED
TO INSURE THE CONTINUANCE OF THEIR RELATION OUGHT TO GO TO THOSE
STOCKHOLDERS WHO ARE OF USE TO THE ENTERPRISE AND AGREE TO ACT IN ITS
BEHALF, AND NOT TO ALL STOCKHOLDERS AS SUCH.  INDEED, THE SUPPOSED
ADVANTAGES OF RETAINING THE EXISTING MANAGEMENT SEEM TO BE A MATTER OF
INFERENCE, IF NOT OF SPECULATION, SUPPORTED BY THE ORAL STATEMENTS OF
ATTORNEYS INSTEAD OF BY TESTIMONY." 

FN17  THIS CONCLUSION IS REEMPHASIZED HERE BY THE FACT THAT NOT ALL
OF THE CLASS A STOCKHOLDERS WHO RECEIVE NEW STOCK ARE PART OF THE
MANAGEMENT OF THE DEBTOR. 

FN18  SEE H.R. REP. NO. 1409, 75TH CONG., 1ST SESS., P. 38, DEALING
WITH RECENT AMENDMENTS TO THE SECTION; AND H.R. REP. NO. 194, 73RD
CONG., 1ST SESS., P. 2, THE REPORT ACCOMPANYING THE ORIGINAL ACT. 

FN19  SEC. 77BA), (C)(10).  CF. CONTINENTAL ILLINOIS NAT. BANK CO. V.
CHICAGO, R.I. & P. RY. CO., 294 U.S. 648. 

FN20  SEC. 77B (A). 

FN21  SEC. 77B (C). 

FN22  SEE, 1 GERDES ON CORPORATE REORGANIZATIONS, C. 9.  THESE POWERS
EMBRACE NOT ONLY THE SPECIFICALLY ENUMERATED POWERS CONTAINED IN SEC.
77B BUT ALSO "ALL THE POWERS, NOT INCONSISTENT WITH THIS SECTION, WHICH
A FEDERAL COURT WOULD HAVE HAD IT APPOINTED A RECEIVER IN EQUITY OF THE
PROPERTY OF THE DEBTOR BY REASON OF ITS INABILITY TO PAY ITS DEBTS AS
THEY MATURE."  SEC. 77B (A).  IN ADDITION, BY VIRTUE OF SEC. 77A THE
DISTRICT COURT, AS A COURT OF BANKRUPTCY, HAS ORIGINAL JURISDICTION IN
PROCEEDINGS UNDER SEC. 77B.  ILLUSTRATIVE OF SPECIFIC POWERS GRANTED BY
SEC. 77B ARE THE POWERS OF THE COURT TO AUTHORIZE ISSUANCE OF
CERTIFICATES (SEC. 77B (C)(3)), TO REQUIRE THE FILING OF SCHEDULES AND
REPORTS (SEC. 77B (C)(4)), TO DIRECT REJECTION OF EXECUTORY CONTRACTS
(SEC. 77B (C)(5)), TO CONTROL SALARIES OF OFFICERS AND TO APPROVE
APPOINTMENTS "TO ANY OFFICE" (SEC. 77B (C)).  THE LAST SUBSECTION ALSO
PROVIDES, "IN CASE A TRUSTEE IS NOT APPOINTED, THE DEBTOR SHALL
CONTINUE IN THE POSSESSION OF ITS PROPERTY, AND, IF AUTHORIZED BY THE
JUDGE, SHALL OPERATE THE BUSINESS THEREOF DURING SUCH PERIOD, FIXED OR
INDEFINITE, AS THE JUDGE MAY FROM TIME TO TIME PRESCRIBE, AND SHALL
HAVE ALL THE TITLE TO AND SHALL EXERCISE, CONSISTENTLY WITH THE
PROVISIONS OF THIS SECTION, ALL THE POWERS OF A TRUSTEE APPOINTED
PURSUANT TO THIS SECTION, SUBJECT AT ALL TIMES TO THE CONTROL OF THE
JUDGE, AND TO SUCH LIMITATIONS, RESTRICTIONS, TERMS, AND CONDITIONS AS
THE JUDGE MAY FROM TIME TO TIME IMPOSE AND PRESCRIBE."  IN THE INSTANT
CASE THE COURT LEFT THE DEBTOR IN POSSESSION, ALLOWING ITS OFFICERS NO
SALARIES BUT ALLOWING SPECIFIED SALARIES TO BE PAID TO DESIGNATED
OFFICERS OF THE PRINCIPAL SUBSIDIARY. 

FN23  THE ACT HAS EXPLICIT STANDARDS FOR DISMISSAL (SEC. 77B (C)(8))
WHICH WE DISCUSS HEREAFTER. 

FN24  AS RECOGNIZED IN IN RE 620 CHURCH STREET BUILDING CORP., SUPRA,
SEC. 77B (E)(1) EXPRESSLY TAKES CARE OF THIS CONTINGENCY IN THE
PROVISION THAT ACCEPTANCE OF THE PLAN BY A MAJORITY OF THE STOCK "SHALL
NOT BE REQUISITE TO THE CONFIRMATION OF THE PLAN BY ANY STOCKHOLDER OR
CLASS OF STOCKHOLDERS (1) IF THE JUDGE SHALL HAVE DETERMINED" INTER
ALIA THAT "THE DEBTOR IS INSOLVENT." 

FN25 UNDER THAT PLAN THE NEW COMPANY WAS TO HAVE AN AUTHORIZED
CAPITAL OF $1,000,000 CONSISTING OF 1,000,000 SHARES OF A PAR VALUE OF
$1.00 PER SHARE, THE BONDHOLDERS GETTING 590,065 OF THE SHARES AND THE
OLD CLASS A STOCKHOLDERS GETTING 239,935 OF THE SHARES.  SHARES GOING
TO THE BONDHOLDERS WERE OF THE SAME CLASS AS THOSE RECEIVED BY
STOCKHOLDERS. 

FN26  THESE ASSENTS WERE APPARENTLY MEASURED BY THE FAILURE OF THE
BONDHOLDERS TO WITHDRAW THEIR CONSENTS WHICH HAD BEEN GIVEN TO THE
ORIGINAL PLAN, ON RECEIVING COPIES OF THE PROPOSED MODIFICATION. 

FN27  CF. HOLLISTER V. STEWART, 111 N.Y. 644; 19 N.E. 782, WHERE THE
COURT STRUCK DOWN A VOLUNTARY REORGANIZATION WHICH ATTEMPTED TO BIND
MINORITY BONDHOLDERS.  THE COURT SAID "UNLESS RAILROAD SYNDICATES OR
COMMITTEES ARE TO BE PUT ABOVE THE CONSTITUTION, THE TRUSTEES CANNOT
SET ASIDE AND CHANGE THEIR CONTRACT WITH PLAINTIFF, OF THEIR OWN
VOLITION, WITHOUT HIS CONSENT."  (P. 660.) 

FN28  THAT WOULD APPEAR TO BE ESSENTIALLY THE TYPE OF CASE INVOLVED
IN IN THE MATTER OF DETROIT INTERNATIONAL BRIDGE CO., DEBTOR, NO.
24131, U.S.D.C.E.D. MICH., CITED TO US BY THE RESPONDENT AND DESCRIBED
IN AN ADVISORY REPORT (CORPORATE REORGANIZATION RELEASE NO. 9)
SUBMITTED BY THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO SEC.
172, C. X OF THE CHANDLER ACT.  HOWEVER, THE ACTION OF THE COURT, IF
ANY, ON THE PLAN HAS NOT YET APPEARED IN THE PUBLISHED REPORTS. 

MR. JUSTICE BUTLER TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 
..END :



















COLEMAN V. MILLER, 307 U.S. 433 


NO. 7.  ARGUED OCTOBER 10, 1938.  REARGUED APRIL 17, 18, 1939.  -
DECIDED JUNE 5, 1939.  - 146 KAN. 390 - 71 P.2D 518, REVERSED. 


1.  UPON SUBMISSION OF A RESOLUTION FOR RATIFICATION OF A PROPOSED
AMENDMENT TO THE FEDERAL CONSTITUTION, KNOWN AS THE CHILD LABOR
AMENDMENT, TWENTY OF THE FORTY SENATORS OF THE STATE OF KANSAS VOTED IN
FAVOR OF ITS ADOPTION AND TWENTY VOTED AGAINST IT.  THE LIEUTENANT
GOVERNOR, THE PRESIDING OFFICER OF THE SENATE, THEN CAST HIS VOTE IN
FAVOR OF THE RESOLUTION, AND LATER IT WAS ADOPTED BY THE OTHER HOUSE OF
THE LEGISLATURE ON A VOTE OF A MAJORITY OF ITS MEMBERS.  THE TWENTY
SENATORS WHO HAD VOTED AGAINST RATIFICATION, CHALLENGING THE RIGHT OF
THE LIEUTENANT GOVERNOR TO CAST THE DECIDING VOTE IN THE SENATE, AND
ALLEGING THAT THE PROPOSED AMENDMENT HAD LOST ITS VITALITY BECAUSE OF
PREVIOUS REJECTION BY KANSAS AND OTHER STATES AND FAILURE OF
RATIFICATION WITHIN A REASONABLE TIME, SOUGHT A WRIT OF MANDAMUS TO
COMPEL THE SECRETARY OF THE SENATE TO ERASE AN ENDORSEMENT ON THE
RESOLUTION, TO THE EFFECT THAT IT HAD BEEN ADOPTED BY THE SENATE, AND
TO ENDORSE THEREON THE WORDS "WAS NOT PASSED," AND TO RESTRAIN THE
OFFICERS OF THE SENATE AND HOUSE OF REPRESENTATIVES FROM SIGNING THE
RESOLUTION AND THE SECRETARY OF STATE OF KANSAS FROM AUTHENTICATING IT
AND DELIVERING IT TO THE GOVERNOR.  THE STATE ENTERED ITS APPEARANCE
AND THE STATE SUPREME COURT ENTERTAINED THE ACTION, SUSTAINED THE RIGHT
OF THE PLAINTIFFS TO MAINTAIN IT, BUT OVERRULED THEIR CONTENTIONS,
UPHELD THE RATIFICATION, AND DENIED THE WRIT.  HELD: 

(1)  THE QUESTIONS DECIDED WERE FEDERAL QUESTIONS, ARISING UNDER
ARTICLE V OF THE CONSTITUTION.  P. 437. 

(2)  THE COMPLAINING SENATORS, WHOSE VOTES AGAINST RATIFICATION HAVE
BEEN OVERRIDDEN AND VIRTUALLY HELD FOR NAUGHT, ALTHOUGH IF THEY ARE
RIGHT IN THEIR CONTENTIONS THEIR VOTES WOULD HAVE BEEN SUFFICIENT TO
DEFEAT RATIFICATION, HAVE A PLAIN, DIRECT AND ADEQUATE INTEREST IN
MAINTAINING THE EFFECTIVENESS OF THEIR VOTES.  THEY HAVE SET UP AND
CLAIMED A RIGHT AND PRIVILEGE UNDER THE CONSTITUTION OF THE UNITED
STATES TO HAVE THEIR VOTES GIVEN EFFECT AND THE STATE COURT HAS DENIED
THAT RIGHT AND PRIVILEGE.  P. 438. 

(3)  THIS COURT HAS JURISDICTION TO REVIEW THE DECISION OF THE STATE
COURT BY CERTIORARI, UNDER JUD.  CODE SEC. 237(B).  P. 438. 

2.  THE COURT BEING EQUALLY DIVIDED IN OPINION AS TO WHETHER THE
QUESTION PRESENTS A JUSTICIABLE CONTROVERSY, OR IS A POLITICAL
QUESTION, EXPRESSES NO OPINION UPON A CONTENTION THAT THE LIEUTENANT
GOVERNOR OF KANSAS WAS NOT A PART OF THE "LEGISLATURE," AND UNDER
ARTICLE V OF THE FEDERAL CONSTITUTION COULD NOT BE PERMITTED A DECIDING
VOTE ON THE RATIFICATION OF THE PROPOSED AMENDMENT.  P. 446. 

3.  IN ACCORDANCE WITH THE PRECEDENT OF THE FOURTEENTH AMENDMENT, THE
EFFICACY OF RATIFICATION OF A PROPOSED AMENDMENT TO THE FEDERAL
CONSTITUTION BY A STATE LEGISLATURE WHICH HAD PREVIOUSLY REJECTED THE
PROPOSAL, IS HELD A QUESTION FOR THE POLITICAL DEPARTMENTS, WITH THE
ULTIMATE AUTHORITY IN THE CONGRESS IN THE EXERCISE OF ITS CONTROL OVER
THE PROMULGATION OF THE ADOPTION OF THE AMENDMENT.  P. 447. 

4.  THE LEGISLATURE OF KANSAS HAVING ACTUALLY RATIFIED THE PROPOSED
CHILD LABOR AMENDMENT, THIS COURT SHOULD NOT RESTRAIN THE STATE
OFFICERS FROM CERTIFYING THE RATIFICATION TO THE SECRETARY OF STATE,
BECAUSE OF AN EARLIER REJECTION, AND THUS PREVENT THE QUESTION FROM
COMING BEFORE THE POLITICAL DEPARTMENTS.  THERE IS FOUND NO BASIS IN
EITHER CONSTITUTION OR STATUTE FOR SUCH JUDICIAL ACTION.  P. 450. 

5.  R.S. SEC. 205; 5 U.S.C. 160, PRESUPPOSES OFFICIAL NOTICE TO THE
SECRETARY OF STATE WHEN A STATE LEGISLATURE HAS ADOPTED A RESOLUTION OF
RATIFICATION.  NO WARRANT IS SEEN FOR JUDICIAL INTERFERENCE WITH THE
PERFORMANCE OF THAT DUTY.  P. 450. 

6.  THE CONGRESS IN CONTROLLING THE PROMULGATION OF THE ADOPTION OF A
CONSTITUTIONAL AMENDMENT HAS THE FINAL DETERMINATION OF THE QUESTION
WHETHER BY LAPSE OF TIME ITS PROPOSAL OF THE AMENDMENT HAD LOST ITS
VITALITY BEFORE BEING ADOPTED BY THE REQUISITE NUMBER OF LEGISLATURES. 
P. 451. 

7.  IN DETERMINING WHETHER A QUESTION FALLS WITHIN THE CATEGORY OF
POLITICAL, NON-JUSTICIABLE QUESTIONS, THE APPROPRIATENESS UNDER OUR
SYSTEM OF GOVERNMENT OF ATTRIBUTING FINALITY TO THE ACTION OF THE
POLITICAL DEPARTMENTS, AND ALSO THE LACK OF SATISFACTORY CRITERIA FOR A
JUDICIAL DETERMINATION, ARE DOMINANT CONSIDERATIONS.  P. 454. 

COLEMAN ET AL. V. MILLER, SECRETARY OF THE SENATE OF THE STATE OF
KANSAS, ET AL. 

CERTIORARI TO THE SUPREME COURT OF KANSAS. 

CERTIORARI, 303 U.S. 632, TO REVIEW A JUDGMENT OF THE SUPREME COURT
OF KANSAS DENYING A WRIT OF MANDAMUS, APPLIED FOR IN THAT COURT BY
SENATORS OF THE STATE AND MEMBERS OF ITS HOUSE OF REPRESENTATIVES FOR
THE PURPOSE OF COMPELLING THE SECRETARY OF THE SENATE TO ERASE AN
ENDORSEMENT PURPORTING TO SHOW THAT A RESOLUTION FOR THE RATIFICATION
OF A PROPOSAL TO AMEND THE FEDERAL CONSTITUTION HAD PASSED THE SENATE,
AND TO RESTRAIN THE OFFICERS OF THE SENATE AND THE OTHER HOUSE OF THE
LEGISLATURE FROM SIGNING THE RESOLUTION AND THE SECRETARY OF STATE OF
KANSAS FROM AUTHENTICATING IT AND DELIVERING IT TO THE GOVERNOR. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE HUGHES, ANNOUNCED BY MR.
JUSTICE STONE. 

IN JUNE, 1924, THE CONGRESS PROPOSED AN AMENDMENT TO THE
CONSTITUTION, KNOWN AS THE CHILD LABOR AMENDMENT.  FN1  IN JANUARY,
1925, THE LEGISLATURE OF KANSAS ADOPTED A RESOLUTION REJECTING THE
PROPOSED AMENDMENT AND A CERTIFIED COPY OF THE RESOLUTION WAS SENT TO
THE SECRETARY OF STATE OF THE UNITED STATES.  IN JANUARY, 1937, A
RESOLUTION KNOWN AS "SENATE CONCURRENT RESOLUTION NO. 3" WAS INTRODUCED
IN THE SENATE OF KANSAS RATIFYING THE PROPOSED AMENDMENT.  THERE WERE
FORTY SENATORS.  WHEN THE RESOLUTION CAME UP FOR CONSIDERATION, TWENTY
SENATORS VOTED IN FAVOR OF ITS ADOPTION AND TWENTY VOTED AGAINST IT.
THE LIEUTENANT GOVERNOR, THE PRESIDING OFFICER OF THE SENATE, THEN CAST
HIS VOTE IN FAVOR OF THE RESOLUTION.  THE RESOLUTION WAS LATER ADOPTED
BY THE HOUSE OF REPRESENTATIVES ON THE VOTE OF A MAJORITY OF ITS
MEMBERS. 

THIS ORIGINAL PROCEEDING IN MANDAMUS WAS THEN BROUGHT IN THE SUPREME
COURT OF KANSAS BY TWENTY-ONE MEMBERS OF THE SENATE, INCLUDING THE
TWENTY SENATORS WHO HAD VOTED AGAINST THE RESOLUTION, AND THREE MEMBERS
OF THE HOUSE OF REPRESENTATIVES, TO COMPEL THE SECRETARY OF THE SENATE
TO ERASE AN ENDORSEMENT ON THE RESOLUTION TO THE EFFECT THAT IT HAD
BEEN ADOPTED BY THE SENATE AND TO ENDORSE THEREON THE WORDS "WAS NOT
PASSED," AND TO RESTRAIN THE OFFICERS OF THE SENATE AND HOUSE OF
REPRESENTATIVES FROM SIGNING THE RESOLUTION AND THE SECRETARY OF STATE
OF KANSAS FROM AUTHENTICATING IT AND DELIVERING IT TO THE GOVERNOR. 
THE PETITION CHALLENGED THE RIGHT OF THE LIEUTENANT GOVERNOR TO CAST
THE DECIDING VOTE IN THE SENATE.  THE PETITION ALSO SET FORTH THE PRIOR
REJECTION OF THE PROPOSED AMENDMENT AND ALLEGED THAT IN THE PERIOD FROM
JUNE, 1924, TO MARCH, 1927, THE AMENDMENT HAD BEEN REJECTED BY BOTH
HOUSES OF THE LEGISLATURES OF TWENTY-SIX STATES, AND HAD BEEN RATIFIED
IN ONLY FIVE STATES, AND THAT BY REASON OF THAT REJECTION AND THE
FAILURE OF RATIFICATION WITHIN A REASONABLE TIME THE PROPOSED AMENDMENT
HAD LOST ITS VITALITY. 

AN ALTERNATIVE WRIT WAS ISSUED.  LATER THE SENATE PASSED A RESOLUTION
DIRECTING THE ATTORNEY GENERAL TO ENTER THE APPEARANCE OF THE STATE AND
TO REPRESENT THE STATE AS ITS INTERESTS MIGHT APPEAR.  ANSWERS WERE
FILED ON BEHALF OF THE DEFENDANTS OTHER THAN THE STATE AND PLAINTIFFS
MADE THEIR REPLY. 

THE SUPREME COURT FOUND NO DISPUTE AS TO THE FACTS.  THE COURT
ENTERTAINED THE ACTION AND HELD THAT THE LIEUTENANT GOVERNOR WAS
AUTHORIZED TO CAST THE DECIDING VOTE, THAT THE PROPOSED AMENDMENT
RETAINED ITS ORIGINAL VITALITY, AND THAT THE RESOLUTION "HAVING DULY
PASSED THE HOUSE OF REPRESENTATIVES AND THE SENATE, THE ACT OF
RATIFICATION OF THE PROPOSED AMENDMENT BY THE LEGISLATURE OF KANSAS WAS
FINAL AND COMPLETE."  THE WRIT OF MANDAMUS WAS ACCORDINGLY DENIED.  146
KAN. 390; 71 P.2D 518.  THIS COURT GRANTED CERTIORARI.  303 U.S. 632. 

FIRST.  THE JURISDICTION OF THIS COURT.  - OUR AUTHORITY TO ISSUE THE
WRIT OF CERTIORARI IS CHALLENGED UPON THE GROUND THAT PETITIONERS HAVE
NO STANDING TO SEEK TO HAVE THE JUDGMENT OF THE STATE COURT REVIEWED,
AND HENCE IT IS URGED THAT THE WRIT OF CERTIORARI SHOULD BE DISMISSED. 
WE ARE UNABLE TO ACCEPT THAT VIEW. 

THE STATE COURT HELD THAT IT HAD JURISDICTION; THAT "THE RIGHT OF THE
PARTIES TO MAINTAIN THE ACTION IS BEYOND QUESTION."  FN2  THE STATE
COURT THUS DETERMINED IN SUBSTANCE THAT MEMBERS OF THE LEGISLATURE HAD
STANDING TO SEEK, AND THE COURT HAD JURISDICTION TO GRANT, MANDAMUS TO
COMPEL A PROPER RECORD OF LEGISLATIVE ACTION.  HAD THE QUESTIONS BEEN
SOLELY STATE QUESTIONS, THE MATTER WOULD HAVE ENDED THERE.  BUT THE
QUESTIONS RAISED IN THE INSTANT CASE AROSE UNDER THE FEDERAL
CONSTITUTION AND THESE QUESTIONS WERE ENTERTAINED AND DECIDED BY THE
STATE COURT.  THEY AROSE UNDER ARTICLE V OF THE CONSTITUTION WHICH
ALONE CONFERRED THE POWER TO AMEND AND DETERMINED THE MANNER IN WHICH
THAT POWER COULD BE EXERCISED.  HAWKE V. SMITH (NO. 1), 253 U.S. 221,
227; LESER V. GARNETT, 258 U.S. 130, 137.  WHETHER ANY OR ALL OF THE
QUESTIONS THUS RAISED AND DECIDED ARE DEEMED TO BE JUSTICIABLE OR
POLITICAL, THEY ARE EXCLUSIVELY FEDERAL QUESTIONS AND NOT STATE
QUESTIONS. 

WE FIND THE CASES CITED IN SUPPORT OF THE CONTENTION, THAT
PETITIONERS LACK AN ADEQUATE INTEREST TO INVOKE OUR JURISDICTION TO
REVIEW, TO BE INAPPLICABLE.  FN3  HERE, THE PLAINTIFFS INCLUDE TWENTY
SENATORS, WHOSE VOTES AGAINST RATIFICATION HAVE BEEN OVERRIDDEN AND
VIRTUALLY HELD FOR NAUGHT ALTHOUGH IF THEY ARE RIGHT IN THEIR
CONTENTIONS THEIR VOTES WOULD HAVE BEEN SUFFICIENT TO DEFEAT
RATIFICATION.  WE THINK THAT THESE SENATORS HAVE A PLAIN, DIRECT AND
ADEQUATE INTEREST IN MAINTAINING THE EFFECTIVENESS OF THEIR VOTES. 
PETITIONERS COME DIRECTLY WITHIN THE PROVISIONS OF THE STATUTE
GOVERNING OUR APPELLATE JURISDICTION.  THEY HAVE SET UP AND CLAIMED A
RIGHT AND PRIVILEGE UNDER THE CONSTITUTION OF THE UNITED STATES TO HAVE
THEIR VOTES GIVEN EFFECT AND THE STATE COURT HAS DENIED THAT RIGHT AND
PRIVILEGE.  AS THE VALIDITY OF A STATE STATUTE WAS NOT ASSAILED, THE
REMEDY BY APPEAL WAS NOT AVAILABLE (JUD.  CODE, SEC. 237(A); 28 U.S.C.
344(A)) AND THE APPROPRIATE REMEDY WAS BY WRIT OF CERTIORARI WHICH WE
GRANTED.  JUD.  CODE, SEC. 237(B); 28 U.S.C. 344(B). 

THE CONTENTION TO THE CONTRARY IS ANSWERED BY OUR DECISIONS IN HAWKE
V. SMITH, SUPRA, AND LESER V. GARNETT, SUPRA.  IN HAWKE V. SMITH, THE
PLAINTIFF IN ERROR, SUING AS A "CITIZEN AND ELECTOR OF THE STATE OF
OHIO, AND AS A TAXPAYER AND ELECTOR OF THE COUNTY OF HAMILTON," ON
BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED, FILED A PETITION FOR
AN INJUNCTION IN THE STATE COURT TO RESTRAIN THE SECRETARY OF STATE
FROM SPENDING THE PUBLIC MONEY IN PREPARING AND PRINTING BALLOTS FOR
SUBMISSION OF A REFERENDUM TO THE ELECTORS ON THE QUESTION OF THE
RATIFICATION OF THE EIGHTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION. 
A DEMURRER TO THE PETITION WAS SUSTAINED IN THE LOWER COURT AND ITS
JUDGMENT WAS AFFIRMED BY THE INTERMEDIATE APPELLATE COURT AND THE
SUPREME COURT OF THE STATE.  THIS COURT ENTERTAINED JURISDICTION AND,
HOLDING THAT THE STATE COURT HAD ERRED IN DECIDING THAT THE STATE HAD
AUTHORITY TO REQUIRE THE SUBMISSION OF THE RATIFICATION TO A
REFERENDUM, REVERSED THE JUDGMENT. 

IN LESER V. GARNETT, QUALIFIED VOTERS IN THE STATE OF MARYLAND
BROUGHT SUIT IN THE STATE COURT TO HAVE THE NAMES OF CERTAIN WOMEN
STRICKEN FROM THE LIST OF QUALIFIED VOTERS ON THE GROUND THAT THE
CONSTITUTION OF MARYLAND LIMITED SUFFRAGE TO MEN AND THAT THE
NINETEENTH AMENDMENT TO THE FEDERAL CONSTITUTION HAS NOT BEEN VALIDLY
RATIFIED.  THE STATE COURT TOOK JURISDICTION AND THE COURT OF APPEALS
OF THE STATE AFFIRMED THE JUDGMENT DISMISSING THE PETITION.  WE GRANTED
CERTIORARI.  ON THE QUESTION OF OUR JURISDICTION WE SAID: 

"THE PETITIONERS CONTENDED, ON SEVERAL GROUNDS, THAT THE AMENDMENT
HAD NOT BECOME PART OF THE FEDERAL CONSTITUTION.  THE TRIAL COURT
OVERRULED THE CONTENTIONS AND DISMISSED THE PETITION.  ITS JUDGMENT WAS
AFFIRMED BY THE COURT OF APPEALS OF THE STATE, 139 MD. 46; AND THE CASE
COMES HERE ON WRIT OF ERROR.  THAT WRIT MUST BE DISMISSED; BUT THE
PETITION FOR A WRIT OF CERTIORARI, ALSO DULY FILED, IS GRANTED.  THE
LAWS OF MARYLAND AUTHORIZED SUCH A SUIT BY A QUALIFIED VOTER AGAINST
THE BOARD OF REGISTRY.  WHETHER THE NINETEENTH AMENDMENT HAS BECOME
PART OF THE FEDERAL CONSTITUTION IS THE QUESTION PRESENTED FOR
DECISION." 

AND HOLDING THAT THE OFFICIAL NOTICE TO THE SECRETARY OF STATE, DULY
AUTHENTICATED, OF THE ACTION OF THE LEGISLATURES OF THE STATES, WHOSE
ALLEGED RATIFICATIONS WERE ASSAILED, WAS CONCLUSIVE UPON THE SECRETARY
OF STATE AND THAT HIS PROCLAMATION ACCORDINGLY OF RATIFICATION WAS
CONCLUSIVE UPON THE COURTS, WE AFFIRMED THE JUDGMENT OF THE STATE
COURT. 

THAT THE QUESTION OF OUR JURISDICTION IN LESER V. GARNETT WAS DECIDED
UPON DELIBERATE CONSIDERATION IS SUFFICIENTLY SHOWN BY THE FACT THAT
THERE WAS A MOTION TO DISMISS THE WRIT OF ERROR FOR THE WANT OF
JURISDICTION AND OPPOSITION TO THE GRANT OF CERTIORARI.  THE DECISION
IS THE MORE STRIKING BECAUSE ON THE SAME DAY, IN AN OPINION IMMEDIATELY
PRECEDING WHICH WAS PREPARED FOR THE COURT BY THE SAME JUSTICE,  FN4
JURISDICTION HAD BEEN DENIED TO A FEDERAL COURT (THE SUPREME COURT OF
THE DISTRICT OF COLUMBIA) OF A SUIT BY CITIZENS OF THE UNITED STATES,
TAXPAYERS AND MEMBERS OF A VOLUNTARY ASSOCIATION ORGANIZED TO SUPPORT
THE CONSTITUTION, IN WHICH IT WAS SOUGHT TO HAVE THE NINETEENTH
AMENDMENT DECLARED UNCONSTITUTIONAL AND TO ENJOIN THE SECRETARY OF
STATE FROM PROCLAIMING ITS RATIFICATION AND THE ATTORNEY GENERAL FROM
TAKING STEPS TO ENFORCE IT. FAIRCHILD V. HUGHES, 258 U.S. 126.  THE
COURT HELD THAT THE PLAINTIFFS' ALLEGED INTEREST IN THE QUESTION
SUBMITTED WAS NOT SUCH AS TO AFFORD A BASIS FOR THE PROCEEDING; THAT
THE PLAINTIFFS HAD ONLY THE RIGHT POSSESSED BY EVERY CITIZEN "TO
REQUIRE THAT THE GOVERNMENT BE ADMINISTERED ACCORDING TO LAW AND THAT
THE PUBLIC MONEYS BE NOT WASTED" AND THAT THIS GENERAL RIGHT DID NOT
ENTITLE A PRIVATE CITIZEN TO BRING SUCH A SUIT AS THE ONE IN QUESTION
IN THE FEDERAL COURTS.  FN5 IT WOULD BE DIFFICULT TO IMAGINE A
SITUATION IN WHICH THE ADEQUACY OF THE PETITIONERS' INTEREST TO INVOKE
OUR APPELLATE JURISDICTION IN LESER V. GARNETT COULD HAVE BEEN MORE
SHARPLY PRESENTED. 

THE EFFORT TO DISTINGUISH THAT CASE ON THE GROUND THAT THE PLAINTIFFS
WERE QUALIFIED VOTERS IN MARYLAND, AND HENCE COULD COMPLAIN OF THE
ADMISSION TO THE REGISTRY OF THOSE ALLEGED NOT TO BE QUALIFIED, IS
FUTILE.  THE INTEREST OF THE PLAINTIFFS IN LESER V. GARNETT AS MERELY
QUALIFIED VOTERS AT GENERAL ELECTIONS IS CERTAINLY MUCH LESS IMPRESSIVE
THAN THE INTEREST OF THE TWENTY SENATORS IN THE INSTANT CASE.  THIS IS
NOT A MERE INTRA-PARLIAMENTARY CONTROVERSY BUT THE QUESTION RELATES TO
LEGISLATIVE ACTION DERIVING ITS FORCE SOLELY FROM THE PROVISIONS OF THE
FEDERAL CONSTITUTION, AND THE TWENTY SENATORS WERE NOT ONLY QUALIFIED
TO VOTE ON THE QUESTION OF RATIFICATION BUT THEIR VOTES, IF THE
LIEUTENANT GOVERNOR WERE EXCLUDED AS NOT BEING A PART OF THE
LEGISLATURE FOR THAT PURPOSE, WOULD HAVE BEEN DECISIVE IN DEFEATING THE
RATIFYING RESOLUTION. 

WE ARE OF THE OPINION THAT HAWKE V. SMITH AND LESER V. GARNETT ARE
CONTROLLING AUTHORITIES, BUT IN VIEW OF THE WIDE RANGE THE DISCUSSION
HAS TAKEN WE MAY REFER TO SOME OTHER INSTANCES IN WHICH THE QUESTION OF
WHAT CONSTITUTES A SUFFICIENT INTEREST TO ENABLE ONE TO INVOKE OUR
APPELLATE JURISDICTION HAS BEEN INVOLVED.  THE PRINCIPLE THAT THE
APPLICANT MUST SHOW A LEGAL INTEREST IN THE CONTROVERSY HAS BEEN
MAINTAINED.  IT HAS BEEN APPLIED REPEATEDLY IN CASES WHERE MUNICIPAL
CORPORATIONS HAVE CHALLENGED STATE LEGISLATION AFFECTING THEIR ALLEGED
RIGHTS AND OBLIGATIONS.  BEING BUT CREATURES OF THE STATE, MUNICIPAL
CORPORATIONS HAVE NO STANDING TO INVOKE THE CONTRACT CLAUSE OR THE
PROVISIONS OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION IN
OPPOSITION TO THE WILL OF THEIR CREATOR.  FN6  BUT THERE HAS BEEN
RECOGNITION OF THE LEGITIMATE INTEREST OF PUBLIC OFFICIALS AND
ADMINISTRATIVE COMMISSIONS, FEDERAL AND STATE, TO RESIST THE ENDEAVOR
TO PREVENT THE ENFORCEMENT OF STATUTES IN RELATION TO WHICH THEY HAVE
OFFICIAL DUTIES.  UNDER THE URGENT DEFICIENCIES ACT, FN7  THE
INTERSTATE COMMERCE COMMISSION, AND COMMISSIONS REPRESENTING INTERESTED
STATES WHICH HAVE INTERVENED, ARE ENTITLED AS "AGGRIEVED PARTIES" TO AN
APPEAL TO THIS COURT FROM A DECREE SETTING ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION, THOUGH THE UNITED STATES REFUSES TO
JOIN IN THE APPEAL.  INTERSTATE COMMERCE COMM'N V. OREGON-WASHINGTON R.
& N. CO., 288 U.S. 14.  SO, THIS COURT MAY GRANT CERTIORARI, ON THE
APPLICATION OF THE FEDERAL TRADE COMMISSION, TO REVIEW DECISIONS
SETTING ASIDE ITS ORDERS.  FN8  FEDERAL TRADE COMM'N V. CURTIS
PUBLISHING CO., 260 U.S. 568.  ANALOGOUS PROVISIONS AUTHORIZE
CERTIORARI TO REVIEW DECISIONS AGAINST THE NATIONAL LABOR RELATIONS
BOARD.  FN9  NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN CORP.,
301 U.S. 1.  UNDER SEC. 266 OF THE JUDICIAL CODE (28 U.S.C. 380), WHERE
AN INJUNCTION IS SOUGHT TO RESTRAIN THE ENFORCEMENT OF A STATUTE OF A
STATE OR AN ORDER OF ITS ADMINISTRATIVE BOARD OR COMMISSION, UPON THE
GROUND OF INVALIDITY UNDER THE FEDERAL CONSTITUTION, THE RIGHT OF
DIRECT APPEAL TO THIS COURT FROM THE DECREE OF THE REQUIRED THREE
JUDGES IS ACCORDED WHETHER THE INJUNCTION BE GRANTED OR DENIED.  HENCE,
IN CASE THE INJUNCTION IS GRANTED, THE STATE BOARD IS ENTITLED TO
APPEAL.  SEE, FOR EXAMPLE, SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL
BROTHERS, 303 U.S. 177.    THE QUESTION OF OUR AUTHORITY TO GRANT
CERTIORARI, ON THE APPLICATION OF STATE OFFICERS, TO REVIEW DECISIONS
OF STATE COURTS DECLARING STATE STATUTES, WHICH THESE OFFICERS SEEK TO
ENFORCE, TO BE REPUGNANT TO THE FEDERAL CONSTITUTION, HAS BEEN
CAREFULLY CONSIDERED AND OUR JURISDICTION IN THAT CLASS OF CASES HAS
BEEN SUSTAINED.  THE ORIGINAL JUDICIARY ACT OF 1789 PROVIDED IN SEC. 25
FN10  FOR THE REVIEW BY THIS COURT OF A JUDGMENT OF A STATE COURT
"WHERE IS DRAWN IN QUESTION THE VALIDITY OF A STATUTE OF, OR AN
AUTHORITY EXERCISED UNDER ANY STATE, ON THE GROUND OF THEIR BEING
REPUGNANT TO THE CONSTITUTION, TREATIES OR LAWS OF THE UNITED STATES,
AND THE DECISION IS IN FAVOUR OF SUCH THEIR VALIDITY"; THAT IS, WHERE
THE CLAIM OF FEDERAL RIGHT HAD BEEN DENIED.  BY THE ACT OF DECEMBER 23,
1914,  FN11  IT WAS PROVIDED THAT THIS COURT MAY REVIEW ON CERTIORARI
DECISIONS OF STATE COURTS SUSTAINING A FEDERAL RIGHT.  THE PRESENT
STATUTE GOVERNING OUR JURISDICTION ON CERTIORARI CONTAINS THE
CORRESPONDING PROVISION THAT THIS COURT MAY EXERCISE THAT JURISDICTION
"AS WELL WHERE THE FEDERAL CLAIM IS SUSTAINED AS WHERE IT IS DENIED." 
JUD.  CODE, SEC. 237(B); 28 U.S.C. 344(B).  THE PLAIN PURPOSE WAS TO
PROVIDE AN OPPORTUNITY, DEEMED TO BE IMPORTANT AND APPROPRIATE, FOR THE
REVIEW OF THE DECISIONS OF STATE COURTS ON CONSTITUTIONAL QUESTIONS
HOWEVER THE STATE COURT MIGHT DECIDE THEM.  ACCORDINGLY WHERE THE CLAIM
OF A COMPLAINANT THAT A STATE OFFICER BE RESTRAINED FROM ENFORCING A
STATE STATUTE BECAUSE OF CONSTITUTIONAL INVALIDITY IS SUSTAINED BY THE
STATE COURT, THE STATUTE ENABLES THE STATE OFFICER TO SEEK A REVERSAL
BY THIS COURT OF THAT DECISION. 

IN BLODGETT V. SILBERMAN, 277 U.S. 1, 7, THE COURT GRANTED CERTIORARI
ON THE APPLICATION OF THE STATE TAX COMMISSIONER OF CONNECTICUT WHO
SOUGHT REVIEW OF THE DECISION OF THE SUPREME COURT OF ERRORS OF THE
STATE SO FAR AS IT DENIED THE RIGHT CREATED BY ITS STATUTE TO TAX THE
TRANSFER OF CERTAIN SECURITIES, WHICH HAD BEEN PLACED FOR SAFEKEEPING
IN NEW YORK, ON THE GROUND THAT THEY WERE NOT WITHIN THE TAXING
JURISDICTION OF CONNECTICUT.  ENTERTAINING JURISDICTION, THIS COURT
REVERSED THE JUDGMENT IN THAT RESPECT.  ID., P. 18. 

THE QUESTION RECEIVED MOST CAREFUL CONSIDERATION IN THE CASE OF
BOYNTON V. HUTCHINSON GAS CO., 291 U.S. 656, WHERE THE SUPREME COURT OF
KANSAS HAD HELD A STATE STATUTE TO BE REPUGNANT TO THE FEDERAL
CONSTITUTION, AND THE ATTORNEY GENERAL OF THE STATE APPLIED FOR
CERTIORARI.  HIS APPLICATION WAS OPPOSED UPON THE GROUND THAT HE HAD
MERELY AN OFFICIAL INTEREST IN THE CONTROVERSY AND THE DECISIONS WERE
INVOKED UPON WHICH THE GOVERNMENT RELIES IN CHALLENGING OUR
JURISDICTION IN THE INSTANT CASE.  FN12  BECAUSE OF ITS IMPORTANCE, AND
CONTRARY TO OUR USUAL PRACTICE, THE COURT DIRECTED ORAL ARGUMENT ON THE
QUESTION WHETHER CERTIORARI SHOULD BE GRANTED, AND AFTER THAT ARGUMENT,
UPON MATURE DELIBERATION, GRANTED THE WRIT.  THE WRIT WAS SUBSEQUENTLY
DISMISSED BUT ONLY BECAUSE OF A FAILURE OF THE RECORD TO SHOW SERVICE
OF SUMMONS AND SEVERANCE UPON THE APPELLEES IN THE STATE COURT WHO WERE
NOT PARTIES TO THE PROCEEDINGS HERE.  292 U.S. 601.  THIS DECISION WITH
RESPECT TO THE SCOPE OF OUR JURISDICTION HAS BEEN FOLLOWED IN LATER
CASES.  IN MOREHEAD V. NEW YORK EX REL. TIPALDO, 298 U.S. 587, WE
GRANTED CERTIORARI ON AN APPLICATION BY THE WARDEN OF A CITY PRISON TO
REVIEW THE DECISION OF THE COURT OF APPEALS OF THE STATE ON HABEAS
CORPUS, RULING THAT THE MINIMUM WAGE LAW OF THE STATE VIOLATED THE
FEDERAL CONSTITUTION.  THIS COURT DECIDED THE CASE ON THE MERITS.  IN
KELLY V. WASHINGTON EX REL. FOSS CO., 302 U.S. 1, WE GRANTED
CERTIORARI, ON THE APPLICATION OF THE STATE AUTHORITIES CHARGED WITH
THE ENFORCEMENT OF THE STATE LAW RELATING TO THE INSPECTION AND
REGULATION OF VESSELS, TO REVIEW THE DECISION OF THE STATE COURT
HOLDING THE STATUTE INVALID IN ITS APPLICATION TO NAVIGABLE WATERS.  WE
CONCLUDED THAT THE STATE ACT HAD A PERMISSIBLE FIELD OF OPERATION AND
THE DECISION OF THE STATE COURT IN HOLDING THE STATUTE COMPLETELY
UNENFORCEABLE IN DEFERENCE TO FEDERAL LAW WAS REVERSED. 

THIS CLASS OF CASES IN WHICH WE HAVE EXERCISED OUR APPELLATE
JURISDICTION ON THE APPLICATION OF STATE OFFICERS MAY BE SAID TO
RECOGNIZE THAT THEY HAVE AN ADEQUATE INTEREST IN THE CONTROVERSY BY
REASON OF THEIR DUTY TO ENFORCE THE STATE STATUTES THE VALIDITY OF
WHICH HAS BEEN DRAWN IN QUESTION.  IN NONE OF THESE CASES COULD IT BE
SAID THAT THE STATE OFFICERS INVOKING OUR JURISDICTION WERE SUSTAINING
ANY "PRIVATE DAMAGE." 

WHILE ONE WHO ASSERTS THE MERE RIGHT OF A CITIZEN AND TAXPAYER OF THE
UNITED STATES TO COMPLAIN OF THE ALLEGED INVALID OUTLAY OF PUBLIC
MONEYS HAS NO STANDING TO INVOKE THE JURISDICTION OF THE FEDERAL COURTS
(FROTHINGHAM V. MELLON, 262 U.S. 447, 480, 486, 487), THE COURT HAS
SUSTAINED THE MORE IMMEDIATE AND SUBSTANTIAL RIGHT OF A RESIDENT
TAXPAYER TO INVOKE THE INTERPOSITION OF A COURT OF EQUITY TO ENJOIN AN
ILLEGAL USE OF MONEYS BY A MUNICIPAL CORPORATION.  CRAMPTON V.
ZABRISKIE, 101 U.S. 601, 609; FROTHINGHAM V. MELLON, SUPRA.  IN HEIM V.
MCCALL, 239 U.S. 175, WE TOOK JURISDICTION ON A WRIT OF ERROR SUED OUT
BY A PROPERTY OWNER AND TAXPAYER, WHO HAD BEEN GIVEN STANDING IN THE
STATE COURT, FOR THE PURPOSE OF REVIEWING ITS DECISION SUSTAINING THE
VALIDITY UNDER THE FEDERAL CONSTITUTION, OF A STATE STATUTE AS APPLIED
TO CONTRACTS FOR THE CONSTRUCTION OF PUBLIC WORKS IN THE CITY OF NEW
YORK, THE ENFORCEMENT OF WHICH WAS ALLEGED TO INVOLVE IRREPARABLE LOSS
TO THE CITY AND HENCE TO BE INIMICAL TO THE INTERESTS OF THE TAXPAYER. 

IN SMILEY V. HOLM, 285 U.S. 355, WE GRANTED CERTIORARI ON THE
APPLICATION OF ONE WHO WAS AN "ELECTOR," AS WELL AS A "CITIZEN" AND
"TAXPAYER," AND WHO ASSAILED UNDER THE FEDERAL CONSTITUTION A STATE
STATUTE ESTABLISHING CONGRESSIONAL DISTRICTS.  PASSING UPON THE MERITS
WE HELD THAT THE FUNCTION OF A STATE LEGISLATURE IN PRESCRIBING THE
TIME, PLACE AND MANNER OF HOLDING ELECTIONS FOR REPRESENTATIVES IN
CONGRESS UNDER ARTICLE I, SEC. 4, WAS A LAW-MAKING FUNCTION IN WHICH
THE VETO POWER OF THE STATE GOVERNOR PARTICIPATES, IF UNDER THE STATE
CONSTITUTION THE GOVERNOR HAS THAT POWER IN THE COURSE OF THE MAKING OF
STATE LAWS, AND ACCORDINGLY REVERSED THE JUDGMENT OF THE STATE COURT. 
WE TOOK JURISDICTION ON CERTIORARI IN A SIMILAR CASE FROM NEW YORK
WHERE THE PETITIONERS WERE "CITIZENS AND VOTERS OF THE STATE" WHO HAD
SOUGHT A MANDAMUS TO COMPEL THE SECRETARY OF STATE OF NEW YORK TO
CERTIFY THAT REPRESENTATIVES IN CONGRESS WERE TO BE ELECTED IN THE
CONGRESSIONAL DISTRICTS AS DEFINED BY A CONCURRENT RESOLUTION OF THE
SENATE AND ASSEMBLY OF THE LEGISLATURE.  THERE THE STATE COURT,
CONSTRUING THE PROVISION OF THE FEDERAL CONSTITUTION AS CONTEMPLATING
THE EXERCISE OF THE LAW-MAKING POWER, HAD SUSTAINED THE DEFENSE THAT
THE CONCURRENT RESOLUTION WAS INEFFECTIVE AS IT HAD NOT BEEN SUBMITTED
TO THE GOVERNOR FOR APPROVAL, AND REFUSED THE WRIT OF MANDAMUS.  WE
AFFIRMED THE JUDGMENT.  KOENIG V. FLYNN, 285 U.S. 375. 

IN THE LIGHT OF THIS COURSE OF DECISIONS, WE FIND NO DEPARTURE FROM
PRINCIPLE IN RECOGNIZING IN THE INSTANT CASE THAT AT LEAST THE TWENTY
SENATORS WHOSE VOTES, IF THEIR CONTENTION WERE SUSTAINED, WOULD HAVE
BEEN SUFFICIENT TO DEFEAT THE RESOLUTION RATIFYING THE PROPOSED
CONSTITUTIONAL AMENDMENT, HAVE AN INTEREST IN THE CONTROVERSY WHICH,
TREATED BY THE STATE COURT AS A BASIS FOR ENTERTAINING AND DECIDING THE
FEDERAL QUESTIONS, IS SUFFICIENT TO GIVE THE COURT JURISDICTION TO
REVIEW THAT DECISION. 

SECOND.  THE PARTICIPATION OF THE LIEUTENANT GOVERNOR.  - PETITIONERS
CONTEND THAT, IN THE LIGHT OF THE POWERS AND DUTIES OF THE LIEUTENANT
GOVERNOR AND HIS RELATION TO THE SENATE UNDER THE STATE CONSTITUTION,
AS CONSTRUED BY THE SUPREME COURT OF THE STATE, THE LIEUTENANT GOVERNOR
WAS NOT A PART OF THE "LEGISLATURE" SO THAT UNDER ARTICLE V OF THE
FEDERAL CONSTITUTION, HE COULD BE PERMITTED TO HAVE A DECIDING VOTE ON
THE RATIFICATION OF THE PROPOSED AMENDMENT, WHEN THE SENATE WAS EQUALLY
DIVIDED. 

WHETHER THIS CONTENTION PRESENTS A JUSTICIABLE CONTROVERSY, OR A
QUESTION WHICH IS POLITICAL IN ITS NATURE AND HENCE NOT JUSTICIABLE, IS
A QUESTION UPON WHICH THE COURT IS EQUALLY DIVIDED AND THEREFORE THE
COURT EXPRESSES NO OPINION UPON THAT POINT. 

THIRD.  THE EFFECT OF THE PREVIOUS REJECTION OF THE AMENDMENT AND OF
THE LAPSE OF TIME SINCE ITS SUBMISSION. 

1.  THE STATE COURT ADOPTED THE VIEW EXPRESSED BY TEXT-WRITERS THAT A
STATE LEGISLATURE WHICH HAS REJECTED AN AMENDMENT PROPOSED BY THE
CONGRESS MAY LATER RATIFY.  FN13  THE ARGUMENT IN SUPPORT OF THAT VIEW
IS THAT ARTICLE V SAYS NOTHING OF REJECTION BUT SPEAKS ONLY OF
RATIFICATION AND PROVIDES THAT A PROPOSED AMENDMENT SHALL BE VALID AS
PART OF THE CONSTITUTION WHEN RATIFIED BY THREE-FOURTHS OF THE STATES;
THAT THE POWER TO RATIFY IS THUS CONFERRED UPON THE STATE BY THE
CONSTITUTION AND, AS A RATIFYING POWER, PERSISTS DESPITE A PREVIOUS
REJECTION.  THE OPPOSING VIEW PROCEEDS ON AN ASSUMPTION THAT IF
RATIFICATION BY "CONVENTIONS" WERE PRESCRIBED BY THE CONGRESS, A
CONVENTION COULD NOT REJECT AND, HAVING ADJOURNED SINE DIE, BE
REASSEMBLED AND RATIFY.  IT IS ALSO PREMISED, IN ACCORDANCE WITH VIEWS
EXPRESSED BY TEXT-WRITERS,  FN14  THAT RATIFICATION IF ONCE GIVEN
CANNOT AFTERWARDS BE RESCINDED AND THE AMENDMENT REJECTED, AND IT IS
URGED THAT THE SAME EFFECT IN THE EXHAUSTION OF THE STATE'S POWER TO
ACT SHOULD BE ASCRIBED TO REJECTION; THAT A STATE CAN ACT "BUT ONCE,
EITHER BY CONVENTION OR THROUGH ITS LEGISLATURE." 

HISTORIC INSTANCES ARE CITED.  IN 1865, THE THIRTEENTH AMENDMENT WAS
REJECTED BY THE LEGISLATURE OF NEW JERSEY WHICH SUBSEQUENTLY RATIFIED
IT, BUT THE QUESTION DID NOT BECOME IMPORTANT AS RATIFICATION BY THE
REQUISITE NUMBER OF STATES HAD ALREADY BEEN PROCLAIMED.  FN15  THE
QUESTION DID ARISE IN CONNECTION WITH THE ADOPTION OF THE FOURTEENTH
AMENDMENT.  THE LEGISLATURES OF GEORGIA, NORTH CAROLINA AND SOUTH
CAROLINA HAD REJECTED THE AMENDMENT IN NOVEMBER AND DECEMBER, 1866. 
FN16  NEW GOVERNMENTS WERE ERECTED IN THOSE STATES (AND IN OTHERS)
UNDER THE DIRECTION OF CONGRESS.  FN17  THE NEW LEGISLATURES RATIFIED
THE AMENDMENT, THAT OF NORTH CAROLINA ON JULY 4, 1868, THAT OF SOUTH
CAROLINA ON JULY 9, 1868, AND THAT OF GEORGIA ON JULY 21, 1868.  FN18
OHIO AND NEW JERSEY FIRST RATIFIED AND THEN PASSED RESOLUTIONS
WITHDRAWING THEIR CONSENT.  FN19  AS THERE WERE THEN THIRTY-SEVEN
STATES, TWENTY-EIGHT WERE NEEDED TO CONSTITUTE THE REQUISITE THREE
FOURTHS.  ON JULY 9, 1868, THE CONGRESS ADOPTED A RESOLUTION REQUESTING
THE SECRETARY OF STATE TO COMMUNICATE "A LIST OF THE STATES OF THE
UNION WHOSE LEGISLATURES HAVE RATIFIED THE FOURTEENTH ARTICLE OF
AMENDMENT,"  FN20  AND IN SECRETARY SEWARD'S REPORT ATTENTION WAS
CALLED TO THE ACTION OF OHIO AND NEW JERSEY.  FN21  ON JULY 20TH
SECRETARY SEWARD ISSUED A PROCLAMATION RECITING THE RATIFICATION BY
TWENTY-EIGHT STATES, INCLUDING NORTH CAROLINA, SOUTH CAROLINA, OHIO AND
NEW JERSEY, AND STATING THAT IT APPEARED THAT OHIO AND NEW JERSEY HAD
SINCE PASSED RESOLUTIONS WITHDRAWING THEIR CONSENT AND THAT "IT IS
DEEMED A MATTER OF DOUBT AND UNCERTAINTY WHETHER SUCH RESOLUTIONS ARE
NOT IRREGULAR, INVALID AND THEREFORE INEFFECTUAL."  THE SECRETARY
CERTIFIED THAT IF THE RATIFYING RESOLUTIONS OF OHIO AND NEW JERSEY WERE
STILL IN FULL FORCE AND EFFECT, NOTWITHSTANDING THE ATTEMPTED
WITHDRAWAL, THE AMENDMENT HAD BECOME A PART OF THE CONSTITUTION.  FN22
ON THE FOLLOWING DAY THE CONGRESS ADOPTED A CONCURRENT RESOLUTION
WHICH, RECITING THAT THREE-FOURTHS OF THE STATES HAVING RATIFIED (THE
LIST INCLUDING NORTH CAROLINA, SOUTH CAROLINA, OHIO AND NEW JERSEY),
FN23  DECLARED THE FOURTEENTH AMENDMENT TO BE A PART OF THE
CONSTITUTION AND THAT IT SHOULD BE DULY PROMULGATED AS SUCH BY THE
SECRETARY OF STATE.  ACCORDINGLY, SECRETARY SEWARD, ON JULY 28TH,
ISSUED HIS PROCLAMATION EMBRACING THE STATES MENTIONED IN THE
CONGRESSIONAL RESOLUTION AND ADDING GEORGIA.  FN24 

THUS THE POLITICAL DEPARTMENTS OF THE GOVERNMENT DEALT WITH THE
EFFECT BOTH OF PREVIOUS REJECTION AND OF ATTEMPTED WITHDRAWAL AND
DETERMINED THAT BOTH WERE INEFFECTUAL IN THE PRESENCE OF AN ACTUAL
RATIFICATION.  FN25  WHILE THERE WERE SPECIAL CIRCUMSTANCES, BECAUSE OF
THE ACTION OF THE CONGRESS IN RELATION TO THE GOVERNMENTS OF THE
REJECTING STATES (NORTH CAROLINA, SOUTH CAROLINA AND GEORGIA), THESE
CIRCUMSTANCES WERE NOT RECITED IN PROCLAIMING RATIFICATION AND THE
PREVIOUS ACTION TAKEN IN THESE STATES WAS SET FORTH IN THE PROCLAMATION
AS ACTUAL PREVIOUS REJECTIONS BY THE RESPECTIVE LEGISLATURES.  THIS
DECISION BY THE POLITICAL DEPARTMENTS OF THE GOVERNMENT AS TO THE
VALIDITY OF THE ADOPTION OF THE FOURTEENTH AMENDMENT HAS BEEN
ACCEPTED. 

WE THINK THAT IN ACCORDANCE WITH THIS HISTORIC PRECEDENT THE QUESTION
OF THE EFFICACY OF RATIFICATIONS BY STATE LEGISLATURES, IN THE LIGHT OF
PREVIOUS REJECTION OR ATTEMPTED WITHDRAWAL, SHOULD BE REGARDED AS A
POLITICAL QUESTION PERTAINING TO THE POLITICAL DEPARTMENTS, WITH THE
ULTIMATE AUTHORITY IN THE CONGRESS IN THE EXERCISE OF ITS CONTROL OVER
THE PROMULGATION OF THE ADOPTION OF THE AMENDMENT. 

THE PRECISE QUESTION AS NOW RAISED IS WHETHER, WHEN THE LEGISLATURE
OF THE STATE, AS WE HAVE FOUND, HAS ACTUALLY RATIFIED THE PROPOSED
AMENDMENT, THE COURT SHOULD RESTRAIN THE STATE OFFICERS FROM CERTIFYING
THE RATIFICATION TO THE SECRETARY OF STATE, BECAUSE OF AN EARLIER
REJECTION, AND THUS PREVENT THE QUESTION FROM COMING BEFORE THE
POLITICAL DEPARTMENTS.  WE FIND NO BASIS IN EITHER CONSTITUTION OR
STATUTE FOR SUCH JUDICIAL ACTION.  ARTICLE V, SPEAKING SOLELY OF
RATIFICATION, CONTAINS NO PROVISION AS TO REJECTION.  FN26  NOR HAS THE
CONGRESS ENACTED A STATUTE RELATING TO REJECTIONS.  THE STATUTORY
PROVISION WITH RESPECT TO CONSTITUTIONAL AMENDMENTS IS AS FOLLOWS: 
"WHENEVER OFFICIAL NOTICE IS RECEIVED AT THE DEPARTMENT OF STATE THAT
ANY AMENDMENT PROPOSED TO THE CONSTITUTION OF THE UNITED STATES HAS
BEEN ADOPTED, ACCORDING TO THE PROVISIONS OF THE CONSTITUTION, THE
SECRETARY OF STATE SHALL FORTHWITH CAUSE THE AMENDMENT TO BE PUBLISHED,
WITH HIS CERTIFICATE, SPECIFYING THE STATES BY WHICH THE SAME MAY HAVE
BEEN ADOPTED, AND THAT THE SAME HAS BECOME VALID, TO ALL INTENTS AND
PURPOSES, AS A PART OF THE CONSTITUTION OF THE UNITED STATES."  FN27 

THE STATUTE PRESUPPOSES OFFICIAL NOTICE TO THE SECRETARY OF STATE
WHEN A STATE LEGISLATURE HAS ADOPTED A RESOLUTION OF RATIFICATION.  WE
SEE NO WARRANT FOR JUDICIAL INTERFERENCE WITH THE PERFORMANCE OF THAT
DUTY.  SEE LESER V. GARNETT, SUPRA, P. 137. 

2.  THE MORE SERIOUS QUESTION IS WHETHER THE PROPOSAL BY THE CONGRESS
OF THE AMENDMENT HAD LOST ITS VITALITY THROUGH LAPSE OF TIME AND HENCE
IT COULD NOT BE RATIFIED BY THE KANSAS LEGISLATURE IN 1937.  THE
ARGUMENT OF PETITIONERS STRESSES THE FACT THAT NEARLY THIRTEEN YEARS
ELAPSED BETWEEN THE PROPOSAL IN 1924 AND THE RATIFICATION IN QUESTION. 
IT IS SAID THAT WHEN THE AMENDMENT WAS PROPOSED THERE WAS A DEFINITELY
ADVERSE POPULAR SENTIMENT AND THAT AT THE END OF 1925 THERE HAD BEEN
REJECTION BY BOTH HOUSES OF THE LEGISLATURES OF SIXTEEN STATES AND
RATIFICATION BY ONLY FOUR STATES, AND THAT IT WAS NOT UNTIL ABOUT 1933
THAT AN AGGRESSIVE CAMPAIGN WAS STARTED IN FAVOR OF THE AMENDMENT.  IN
REPLY, IT IS URGED THAT CONGRESS DID NOT FIX A LIMIT OF TIME FOR
RATIFICATION AND THAT AN UNREASONABLY LONG TIME HAD NOT ELAPSED SINCE
THE SUBMISSION; THAT THE CONDITIONS WHICH GAVE RISE TO THE AMENDMENT
HAD NOT BEEN ELIMINATED; THAT THE PREVALENCE OF CHILD LABOR, THE
DIVERSITY OF STATE LAWS AND THE DISPARITY IN THEIR ADMINISTRATION, WITH
THE RESULTING COMPETITIVE INEQUALITIES, CONTINUED TO EXIST.  REFERENCE
IS ALSO MADE TO THE FACT THAT A NUMBER OF THE STATES HAVE TREATED THE
AMENDMENT AS STILL PENDING AND THAT IN THE PROCEEDINGS OF THE NATIONAL
GOVERNMENT THERE HAVE BEEN INDICATIONS OF THE SAME VIEW.  FN28  IT IS
SAID THAT THERE WERE FOURTEEN RATIFICATIONS IN 1933, FOUR IN 1935, ONE
IN 1936, AND THREE IN 1937. 

WE HAVE HELD THAT THE CONGRESS IN PROPOSING AN AMENDMENT MAY FIX A
REASONABLE TIME FOR RATIFICATION.  DILLON V. GLOSS, 256 U.S. 368. 
THERE WE SUSTAINED THE ACTION OF THE CONGRESS IN PROVIDING IN THE
PROPOSED EIGHTEENTH AMENDMENT THAT IT SHOULD BE INOPERATIVE UNLESS
RATIFIED WITHIN SEVEN YEARS.  FN29  NO LIMITATION OF TIME FOR
RATIFICATION IS PROVIDED IN THE INSTANT CASE EITHER IN THE PROPOSED
AMENDMENT OR IN THE RESOLUTION OF SUBMISSION.  BUT PETITIONERS CONTEND
THAT, IN THE ABSENCE OF A LIMITATION BY THE CONGRESS, THE COURT CAN AND
SHOULD DECIDE WHAT IS A REASONABLE PERIOD WITHIN WHICH RATIFICATION MAY
BE HAD.  WE ARE UNABLE TO AGREE WITH THAT CONTENTION. 

IT IS TRUE THAT IN DILLON V. GLOSS THE COURT SAID THAT NOTHING WAS
FOUND IN ARTICLE V WHICH SUGGESTED THAT AN AMENDMENT ONCE PROPOSED WAS
TO BE OPEN TO RATIFICATION FOR ALL TIME, OR THAT RATIFICATION IN SOME
STATES MIGHT BE SEPARATED FROM THAT IN OTHERS BY MANY YEARS AND YET BE
EFFECTIVE; THAT THERE WAS A STRONG SUGGESTION TO THE CONTRARY IN THAT
PROPOSAL AND RATIFICATION WERE BUT SUCCEEDING STEPS IN A SINGLE
ENDEAVOR; THAT AS AMENDMENTS WERE DEEMED TO BE PROMPTED BY NECESSITY,
THEY SHOULD BE CONSIDERED AND DISPOSED OF PRESENTLY; AND THAT THERE IS
A FAIR IMPLICATION THAT RATIFICATION MUST BE SUFFICIENTLY
CONTEMPORANEOUS IN THE REQUIRED NUMBER OF STATES TO REFLECT THE WILL OF
THE PEOPLE IN ALL SECTIONS AT RELATIVELY THE SAME PERIOD; AND HENCE
THAT RATIFICATION MUST BE WITHIN SOME REASONABLE TIME AFTER THE
PROPOSAL.  THESE CONSIDERATIONS WERE COGENT REASONS FOR THE DECISION IN
DILLON V. GLOSS THAT THE CONGRESS HAD THE POWER TO FIX A REASONABLE
TIME FOR RATIFICATION.  BUT IT DOES NOT FOLLOW THAT, WHENEVER CONGRESS
HAS NOT EXERCISED THAT POWER, THE COURT SHOULD TAKE UPON ITSELF THE
RESPONSIBILITY OF DECIDING WHAT CONSTITUTES A REASONABLE TIME AND
DETERMINE ACCORDINGLY THE VALIDITY OF RATIFICATIONS.  THAT QUESTION WAS
NOT INVOLVED IN DILLON V. GLOSS AND, IN ACCORDANCE WITH FAMILIAR
PRINCIPLE, WHAT WAS THERE SAID MUST BE READ IN THE LIGHT OF THE POINT
DECIDED. 

WHERE ARE TO BE FOUND THE CRITERIA FOR SUCH A JUDICIAL
DETERMINATION?  NONE ARE TO BE FOUND IN CONSTITUTION OR STATUTE.  IN
THEIR ENDEAVOR TO ANSWER THIS QUESTION PETITIONERS' COUNSEL HAVE
SUGGESTED THAT AT LEAST TWO YEARS SHOULD BE ALLOWED; THAT SIX YEARS
WOULD NOT SEEM TO BE UNREASONABLY LONG; THAT SEVEN YEARS HAD BEEN USED
BY THE CONGRESS AS A REASONABLE PERIOD; THAT ONE YEAR, SIX MONTHS AND
THIRTEEN DAYS WAS THE AVERAGE TIME USED IN PASSING UPON AMENDMENTS
WHICH HAVE BEEN RATIFIED SINCE THE FIRST TEN AMENDMENTS; THAT THREE
YEARS, SIX MONTHS AND TWENTY-FIVE DAYS HAS BEEN THE LONGEST TIME USED
IN RATIFYING.  TO THIS LIST OF VARIABLES, COUNSEL ADD THAT "THE NATURE
AND EXTENT OF PUBLICITY AND THE ACTIVITY OF THE PUBLIC AND OF THE
LEGISLATURES OF THE SEVERAL STATES IN RELATION TO ANY PARTICULAR
PROPOSAL SHOULD BE TAKEN INTO CONSIDERATION."  THAT STATEMENT IS
PERTINENT, BUT THERE ARE ADDITIONAL MATTERS TO BE EXAMINED AND
WEIGHED.  WHEN A PROPOSED AMENDMENT SPRINGS FROM A CONCEPTION OF
ECONOMIC NEEDS, IT WOULD BE NECESSARY, IN DETERMINING WHETHER A
REASONABLE TIME HAD ELAPSED SINCE ITS SUBMISSION, TO CONSIDER THE
ECONOMIC CONDITIONS PREVAILING IN THE COUNTRY, WHETHER THESE HAD SO FAR
CHANGED SINCE THE SUBMISSION AS TO MAKE THE PROPOSAL NO LONGER
RESPONSIVE TO THE CONCEPTION WHICH INSPIRED IT OR WHETHER CONDITIONS
WERE SUCH AS TO INTENSIFY THE FEELING OF NEED AND THE APPROPRIATENESS
OF THE PROPOSED REMEDIAL ACTION.  IN SHORT, THE QUESTION OF A
REASONABLE TIME IN MANY CASES WOULD INVOLVE, AS IN THIS CASE IT DOES
INVOLVE, AN APPRAISAL OF A GREAT VARIETY OF RELEVANT CONDITIONS,
POLITICAL, SOCIAL AND ECONOMIC, WHICH CAN HARDLY BE SAID TO BE WITHIN
THE APPROPRIATE RANGE OF EVIDENCE RECEIVABLE IN A COURT OF JUSTICE AND
AS TO WHICH IT WOULD BE AN EXTRAVAGANT EXTENSION OF JUDICIAL AUTHORITY
TO ASSERT JUDICIAL NOTICE AS THE BASIS OF DECIDING A CONTROVERSY WITH
RESPECT TO THE VALIDITY OF AN AMENDMENT ACTUALLY RATIFIED.  ON THE
OTHER HAND, THESE CONDITIONS ARE APPROPRIATE FOR THE CONSIDERATION OF
THE POLITICAL DEPARTMENTS OF THE GOVERNMENT.  THE QUESTIONS THEY
INVOLVE ARE ESSENTIALLY POLITICAL AND NOT JUSTICIABLE.  THEY CAN BE
DECIDED BY THE CONGRESS WITH THE FULL KNOWLEDGE AND APPRECIATION
ASCRIBED TO THE NATIONAL LEGISLATURE OF THE POLITICAL, SOCIAL AND
ECONOMIC CONDITIONS WHICH HAVE PREVAILED DURING THE PERIOD SINCE THE
SUBMISSION OF THE AMENDMENT. 

OUR DECISION THAT THE CONGRESS HAS THE POWER UNDER ARTICLE V TO FIX A
REASONABLE LIMIT OF TIME FOR RATIFICATION IN PROPOSING AN AMENDMENT
PROCEEDS UPON THE ASSUMPTION THAT THE QUESTION, WHAT IS A REASONABLE
TIME, LIES WITHIN THE CONGRESSIONAL PROVINCE.  IF IT BE DEEMED THAT
SUCH A QUESTION IS AN OPEN ONE WHEN THE LIMIT HAS NOT BEEN FIXED IN
ADVANCE, WE THINK THAT IT SHOULD ALSO BE REGARDED AS AN OPEN ONE FOR
THE CONSIDERATION OF THE CONGRESS WHEN, IN THE PRESENCE OF CERTIFIED
RATIFICATIONS BY THREE-FOURTHS OF THE STATES, THE TIME ARRIVES FOR THE
PROMULGATION OF THE ADOPTION OF THE AMENDMENT.  THE DECISION BY THE
CONGRESS, IN ITS CONTROL OF THE ACTION OF THE SECRETARY OF STATE, OF
THE QUESTION WHETHER THE AMENDMENT HAD BEEN ADOPTED WITHIN A REASONABLE
TIME WOULD NOT BE SUBJECT TO REVIEW BY THE COURTS. 

IT WOULD UNDULY LENGTHEN THIS OPINION TO ATTEMPT TO REVIEW OUR
DECISIONS AS TO THE CLASS OF QUESTIONS DEEMED TO BE POLITICAL AND NOT
JUSTICIABLE.  IN DETERMINING WHETHER A QUESTION FALLS WITHIN THAT
CATEGORY, THE APPROPRIATENESS UNDER OUR SYSTEM OF GOVERNMENT OF
ATTRIBUTING FINALITY TO THE ACTION OF THE POLITICAL DEPARTMENTS AND
ALSO THE LACK OF SATISFACTORY CRITERIA FOR A JUDICIAL DETERMINATION ARE
DOMINANT CONSIDERATIONS.  FN30  THERE ARE MANY ILLUSTRATIONS IN THE
FIELD OF OUR CONDUCT OF FOREIGN RELATIONS, WHERE THERE ARE
"CONSIDERATIONS OF POLICY, CONSIDERATIONS OF EXTREME MAGNITUDE, AND
CERTAINLY, ENTIRELY INCOMPETENT TO THE EXAMINATION AND DECISION OF A
COURT OF JUSTICE."  WARE V. HYLTON, 3 DALL.  199, 260.  FN31  QUESTIONS
INVOLVING SIMILAR CONSIDERATIONS ARE FOUND IN THE GOVERNMENT OF OUR
INTERNAL AFFAIRS.  THUS, UNDER ARTICLE IV, SEC. 4, OF THE CONSTITUTION,
PROVIDING THAT THE UNITED STATES "SHALL GUARANTEE TO EVERY STATE IN
THIS UNION A REPUBLICAN FORM OF GOVERNMENT," WE HAVE HELD THAT IT RESTS
WITH THE CONGRESS TO DECIDE WHAT GOVERNMENT IS THE ESTABLISHED ONE IN A
STATE AND WHETHER OR NOT IT IS REPUBLICAN IN FORM.  LUTHER V. BORDEN, 7
HOW.  1, 42.  IN THAT CASE CHIEF JUSTICE TANEY OBSERVED THAT "WHEN THE
SENATORS AND REPRESENTATIVES OF A STATE ARE ADMITTED INTO THE COUNCILS
OF THE UNION, THE AUTHORITY OF THE GOVERNMENT UNDER WHICH THEY ARE
APPOINTED, AS WELL AS ITS REPUBLICAN CHARACTER, IS RECOGNIZED BY THE
PROPER CONSTITUTIONAL AUTHORITY.  AND ITS DECISION IS BINDING ON EVERY
OTHER DEPARTMENT OF THE GOVERNMENT, AND COULD NOT BE QUESTIONED IN A
JUDICIAL TRIBUNAL."  SO, IT WAS HELD IN THE SAME CASE THAT UNDER THE
PROVISION OF THE SAME ARTICLE FOR THE PROTECTION OF EACH OF THE STATES
"AGAINST DOMESTIC VIOLENCE" IT RESTED WITH THE CONGRESS "TO DETERMINE
UPON THE MEANS PROPER TO BE ADOPTED TO FULFIL THIS GUARANTEE."  ID., P.
43.  SO, IN PACIFIC TELEPHONE CO. V. OREGON, 223 U.S. 118, WE
CONSIDERED THAT QUESTIONS ARISING UNDER THE GUARANTY OF A REPUBLICAN
FORM OF GOVERNMENT HAD LONG SINCE BEEN "DEFINITELY DETERMINED TO BE
POLITICAL AND GOVERNMENTAL" AND HENCE THAT THE QUESTION WHETHER THE
GOVERNMENT OF OREGON HAD CEASED TO BE REPUBLICAN IN FORM BECAUSE OF A
CONSTITUTIONAL AMENDMENT BY WHICH THE PEOPLE RESERVED TO THEMSELVES
POWER TO PROPOSE AND ENACT LAWS INDEPENDENTLY OF THE LEGISLATIVE
ASSEMBLY AND ALSO TO APPROVE OR REJECT ANY ACT OF THAT BODY, WAS A
QUESTION FOR THE DETERMINATION OF THE CONGRESS.  IT WOULD BE FINALLY
SETTLED WHEN THE CONGRESS ADMITTED THE SENATORS AND REPRESENTATIVES OF
THE STATE. 

FOR THE REASONS WE HAVE STATED, WHICH WE THINK TO BE AS COMPELLING AS
THOSE WHICH UNDERLAY THE CITED DECISIONS, WE THINK THAT THE CONGRESS IN
CONTROLLING THE PROMULGATION OF THE ADOPTION OF A CONSTITUTIONAL
AMENDMENT HAS THE FINAL DETERMINATION OF THE QUESTION WHETHER BY LAPSE
OF TIME ITS PROPOSAL OF THE AMENDMENT HAD LOST ITS VITALITY PRIOR TO
THE REQUIRED RATIFICATIONS.  THE STATE OFFICIALS SHOULD NOT BE
RESTRAINED FROM CERTIFYING TO THE SECRETARY OF STATE THE ADOPTION BY
THE LEGISLATURE OF KANSAS OF THE RESOLUTION OF RATIFICATION. 

AS WE FIND NO REASON FOR DISTURBING THE DECISION OF THE SUPREME COURT
OF KANSAS IN DENYING THE MANDAMUS SOUGHT BY PETITIONERS, ITS JUDGMENT
IS AFFIRMED BUT UPON THE GROUNDS STATED IN THIS OPINION.  AFFIRMED. 

FN1  THE TEXT OF THE PROPOSED AMENDMENT IS AS FOLLOWS (43 STAT.
670): 

"SECTION 1.  THE CONGRESS SHALL HAVE POWER TO LIMIT, REGULATE, AND
PROHIBIT THE LABOR OF PERSONS UNDER EIGHTEEN YEARS OF AGE. 

"SEC. 2.  THE POWER OF THE SEVERAL STATES IS UNIMPAIRED BY THIS
ARTICLE EXCEPT THAT THE OPERATION OF STATE LAWS SHALL BE SUSPENDED TO
THE EXTENT NECESSARY TO GIVE EFFECT TO LEGISLATION ENACTED BY THE
CONGRESS." 

FN2  THE STATE COURT SAID ON THIS POINT: 

"AT THE THRESHOLD WE ARE CONFRONTED WITH THE QUESTION RAISED BY THE
DEFENDANTS AS TO THE RIGHT OF THE PLAINTIFFS TO MAINTAIN THIS ACTION. 
IT APPEARS THAT ON MARCH 30, 1937, THE STATE SENATE ADOPTED A
RESOLUTION DIRECTING THE ATTORNEY GENERAL TO APPEAR FOR THE STATE OF
KANSAS IN THIS ACTION.  IT FURTHER APPEARS THAT ON APRIL 3, 1937, ON
APPLICATION OF THE ATTORNEY GENERAL, AN ORDER WAS ENTERED MAKING THE
STATE OF KANSAS A PARTY DEFENDANT.  THE STATE BEING A PARTY TO THE
PROCEEDINGS, WE THINK THE RIGHT OF THE PARTIES TO MAINTAIN THE ACTION
IS BEYOND QUESTION.  (G.S. 1935, 75-702; STATE, EX REL. V. PUBLIC
SERVICE COMN., 135 KAN. 491, 11 P.2D 999.)" 

FN3  SEE CAFFREY V. OKLAHOMA TERRITORY, 177 U.S. 346; SMITH V.
INDIANA, 191 U.S. 138; BRAXTON COUNTY COURT V. WEST VIRGINIA, 208 U.S.
192; MARSHALL V. DYE, 231 U.S. 250; STEWART V. KANSAS CITY, 239 U.S.
14; COLUMBUS & GREENVILLE RY. CO. V. MILLER, 283 U.S. 96. 

FN4  MR. JUSTICE BRANDEIS. 

FN5  ID., PP. 129, 130.  SEE, ALSO, FROTHINGHAM V. MELLON, 262 U.S.
447, 480, 486, 487. 

FN6  PAWHUSKA V. PAWHUSKA OIL CO., 250 U.S. 394; TRENTON V. NEW
JERSEY, 262 U.S. 182; RISTY V. CHICAGO, R.I. & P. RY. CO., 270 U.S.
378; WILLIAMS V. MAYOR, 289 U.S. 36. 

FN7  ACT OF OCTOBER 22, 1913, 38 STAT. 219; 28 U.S.C. 47, 47A, 345. 

FN8  15 U.S.C. 45; 28 U.S.C. 348. 

FN9  29 U.S.C. 160(E).  SEE, ALSO, AS TO ORDERS OF FEDERAL
COMMUNICATIONS COMMISSION, 47 U.S.C. 402(E). 

FN10  1 STAT. 73, 85, 86. 

FN11  38 STAT. 790; SEE, ALSO, ACT OF SEPTEMBER 6, 1916, 39 STAT.
726. 

FN12  SEE CASES CITED IN NOTE 3. 

FN13  JAMESON ON CONSTITUTIONAL CONVENTIONS, SECS. 576-581;
WILLOUGHBY ON THE CONSTITUTION, SEC. 329A. 

FN14  JAMESON, OP. CIT., SECS. 582-584; WILLOUGHBY, OP. CIT., SEC.
329A; AMES, "PROPOSED AMENDMENTS TO THE CONSTITUTION," HOUSE DOC. NO.
353, PT. 2, 54TH CONG., 2D SESS., PP. 299, 300. 

FN15  13 STAT. 774, 775; JAMESON, OP. CIT., SEC. 576; AMES, OP. CIT.,
P. 300. 

FN16  15 STAT. 710. 

FN17  ACT OF MARCH 2, 1867, 14 STAT., P. 428.  SEE WHITE V. HART, 13
WALL.  646, 652. 

FN18  15 STAT. 710. 

FN19  15 STAT. 707. 

FN20  CONG. GLOBE, 40TH CONG., 2D SESS., P. 3857. 

FN21  CONG. GLOBE, 40TH CONG., 2D SESS., P. 4070. 

FN22  15 STAT. 706, 707. 

FN23  15 STAT. 709, 710. 

FN24  15 STAT. 710, 711; AMES, OP. CIT., APP. NO. 1140, P. 377. 

FN25  THE LEGISLATURE OF NEW YORK WHICH HAD RATIFIED THE FIFTEENTH
AMENDMENT IN 1869 ATTEMPTED, IN JANUARY, 1870, TO WITHDRAW ITS
RATIFICATION, AND WHILE THIS FACT WAS STATED IN THE PROCLAMATION BY
SECRETARY FISH OF THE RATIFICATION OF THE AMENDMENT, AND NEW YORK WAS
NOT NEEDED TO MAKE UP THE REQUIRED THREE-FOURTHS, THAT STATE WAS
INCLUDED IN THE LIST OF RATIFYING STATES.  16 STAT. 1131; AMES, OP.
CIT., APP. NO. 1284, P. 388.    FN26  COMPARE ARTICLE VII. 

FN27  5 U.S.C. 160.  FROM ACT OF APRIL 20, 1818, SEC. 2; 3 STAT. 439;
R.S. SEC. 205. 

FN28  SEN. REP. 726, 75TH CONG., 1ST SESS.; SEN. REP. 788, 75TH
CONG., 1ST SESS.:  LETTER OF THE PRESIDENT ON JANUARY 8, 1937, TO THE
GOVERNORS OF NINETEEN NON-RATIFYING STATES WHOSE LEGISLATURES WERE TO
MEET IN THAT YEAR, URGING THEM TO PRESS FOR RATIFICATION.  NEW YORK
TIMES, JANUARY 9, 1937, P. 5. 

FN29  40 STAT. 1050.  A SIMILAR PROVISION WAS INSERTED IN THE TWENTY
FIRST AMENDMENT.  UNITED STATES V. CHAMBERS, 291 U.S. 217, 222. 

FN30  SEE WILLOUGHBY, OP. CIT., PP. 1326, ET SEQ.; OLIVER P. FIELD,
"THE DOCTRINE OF POLITICAL QUESTIONS IN THE FEDERAL COURTS," 8
MINNESOTA LAW REVIEW, 485; MELVILLE FULLER WESTON, "POLITICAL
QUESTIONS," 38 HARVARD LAW REVIEW, 296. 

FN31  SEE, ALSO, UNITED STATES V. PALMER, 3 WHEAT.  610, 634; FOSTER
V. NEILSON, 2 PET. 253, 309; DOE V. BRADEN, 16 HOW.  635, 657;
TERLINDEN V. AMES, 184 U.S. 270, 288. 

CONCURRING OPINION BY MR. JUSTICE BLACK, IN WHICH MR. JUSTICE
ROBERTS, MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS JOIN. 

ALTHOUGH, FOR REASONS TO BE STATED BY MR. JUSTICE FRANKFURTER, WE
BELIEVE THIS CAUSE SHOULD BE DISMISSED, THE RULING OF THE COURT JUST
ANNOUNCED REMOVES FROM THE CASE THE QUESTION OF PETITIONERS' STANDING
TO SUE.  UNDER THE COMPULSION OF THAT RULING,  FN1  MR. JUSTICE
ROBERTS, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS AND I HAVE
PARTICIPATED IN THE DISCUSSION OF OTHER QUESTIONS CONSIDERED BY THE
COURT AND WE CONCUR IN THE RESULT REACHED, BUT FOR SOMEWHAT DIFFERENT
REASONS. 

THE CONSTITUTION GRANTS CONGRESS EXCLUSIVE POWER TO CONTROL
SUBMISSION OF CONSTITUTIONAL AMENDMENTS.  FINAL DETERMINATION BY
CONGRESS THAT RATIFICATION BY THREE-FOURTHS OF THE STATES HAS TAKEN
PLACE "IS CONCLUSIVE UPON THE COURTS."  FN2  IN THE EXERCISE OF THAT
POWER, CONGRESS, OF COURSE, IS GOVERNED BY THE CONSTITUTION.  HOWEVER,
WHETHER SUBMISSION, INTERVENING PROCEDURE OR CONGRESSIONAL
DETERMINATION OF RATIFICATION CONFORMS TO THE COMMANDS OF THE
CONSTITUTION, CALLS FOR DECISIONS BY A "POLITICAL DEPARTMENT" OF
QUESTIONS OF A TYPE WHICH THIS COURT HAS FREQUENTLY DESIGNATED
"POLITICAL."  AND DECISION OF A "POLITICAL QUESTION" BY THE "POLITICAL
DEPARTMENT" TO WHICH THE CONSTITUTION HAS COMMITTED IT "CONCLUSIVELY
BINDS THE JUDGES, AS WELL AS ALL OTHER OFFICERS, CITIZENS AND SUBJECTS
OF  ...  GOVERNMENT."  FN3  PROCLAMATION UNDER AUTHORITY OF CONGRESS
THAT AN AMENDMENT HAS BEEN RATIFIED WILL CARRY WITH IT A SOLEMN
ASSURANCE BY THE CONGRESS THAT RATIFICATION HAS TAKEN PLACE AS THE
CONSTITUTION COMMANDS.  UPON THIS ASSURANCE A PROCLAIMED AMENDMENT MUST
BE ACCEPTED AS A PART OF THE CONSTITUTION, LEAVING TO THE JUDICIARY ITS
TRADITIONAL AUTHORITY OF INTERPRETATION.  FN4  TO THE EXTENT THAT THE
COURT'S OPINION IN THE PRESENT CASE EVEN IMPLIEDLY ASSUMES A POWER TO
MAKE JUDICIAL INTERPRETATION OF THE EXCLUSIVE CONSTITUTIONAL AUTHORITY
OF CONGRESS OVER SUBMISSION AND RATIFICATION OF AMENDMENTS, WE ARE
UNABLE TO AGREE. 

THE STATE COURT BELOW ASSUMED JURISDICTION TO DETERMINE WHETHER THE
PROPER PROCEDURE IS BEING FOLLOWED BETWEEN SUBMISSION AND FINAL
ADOPTION.  HOWEVER, IT IS APPARENT THAT JUDICIAL REVIEW OF OR
PRONOUNCEMENTS UPON A SUPPOSED LIMITATION OF A "REASONABLE TIME" WITHIN
WHICH CONGRESS MAY ACCEPT RATIFICATION; AS TO WHETHER DULY AUTHORIZED
STATE OFFICIALS HAVE PROCEEDED PROPERLY IN RATIFYING OR VOTING FOR
RATIFICATION; OR WHETHER A STATE MAY REVERSE ITS ACTION ONCE TAKEN UPON
A PROPOSED AMENDMENT; AND KINDRED QUESTIONS, ARE ALL CONSISTENT ONLY
WITH AN ULTIMATE CONTROL OVER THE AMENDING PROCESS IN THE COURTS.  AND
THIS MUST INEVITABLY EMBARRASS THE COURSE OF AMENDMENT BY SUBJECTING TO
JUDICIAL INTERFERENCE MATTERS THAT WE BELIEVE WERE INTRUSTED BY THE
CONSTITUTION SOLELY TO THE POLITICAL BRANCH OF GOVERNMENT. 

THE COURT HERE TREATS THE AMENDING PROCESS OF THE CONSTITUTION IN
SOME RESPECTS AS SUBJECT TO JUDICIAL CONSTRUCTION, IN OTHERS AS SUBJECT
TO THE FINAL AUTHORITY OF THE CONGRESS.  THERE IS NO DISAPPROVAL OF THE
CONCLUSION ARRIVED AT IN DILLON V. GLOSS,  FN5  THAT THE CONSTITUTION
IMPLIEDLY REQUIRES THAT A PROPERLY SUBMITTED AMENDMENT MUST DIE UNLESS
RATIFIED WITHIN A "REASONABLE TIME."  NOR DOES THE COURT NOW DISAPPROVE
ITS PRIOR ASSUMPTION OF POWER TO MAKE SUCH A PRONOUNCEMENT.  AND IT IS
NOT MADE CLEAR THAT ONLY CONGRESS HAS CONSTITUTIONAL POWER TO DETERMINE
IF THERE IS ANY SUCH IMPLICATION IN ARTICLE V OF THE CONSTITUTION.  ON
THE OTHER HAND, THE COURT'S OPINION DECLARES THAT CONGRESS HAS THE
EXCLUSIVE POWER TO DECIDE THE "POLITICAL QUESTIONS" OF WHETHER A STATE
WHOSE LEGISLATURE HAS ONCE ACTED UPON A PROPOSED AMENDMENT MAY
SUBSEQUENTLY REVERSE ITS POSITION, AND WHETHER, IN THE CIRCUMSTANCES OF
SUCH A CASE AS THIS, AN AMENDMENT IS DEAD BECAUSE AN "UNREASONABLE"
TIME HAS ELAPSED.  NO SUCH DIVISION BETWEEN THE POLITICAL AND JUDICIAL
BRANCHES OF THE GOVERNMENT IS MADE BY ARTICLE V WHICH GRANTS POWER OVER
THE AMENDING OF THE CONSTITUTION TO CONGRESS ALONE.  UNDIVIDED CONTROL
OF THAT PROCESS HAS BEEN GIVEN BY THE ARTICLE EXCLUSIVELY AND
COMPLETELY TO CONGRESS.  THE PROCESS ITSELF IS "POLITICAL" IN ITS
ENTIRETY, FROM SUBMISSION UNTIL AN AMENDMENT BECOMES PART OF THE
CONSTITUTION, AND IS NOT SUBJECT TO JUDICIAL GUIDANCE, CONTROL OR
INTERFERENCE AT ANY POINT. 

SINCE CONGRESS HAS SOLE AND COMPLETE CONTROL OVER THE AMENDING
PROCESS, SUBJECT TO NO JUDICIAL REVIEW, THE VIEWS OF ANY COURT UPON
THIS PROCESS CANNOT BE BINDING UPON CONGRESS, AND INSOFAR AS DILLON V.
GLOSS ATTEMPTS JUDICIALLY TO IMPOSE A LIMITATION UPON THE RIGHT OF
CONGRESS TO DETERMINE FINAL ADOPTION OF AN AMENDMENT, IT SHOULD BE
DISAPPROVED.  IF CONGRESSIONAL DETERMINATION THAT AN AMENDMENT HAS BEEN
COMPLETED AND BECOME A PART OF THE CONSTITUTION IS FINAL AND REMOVED
FROM EXAMINATION BY THE COURTS, AS THE COURT'S PRESENT OPINION
RECOGNIZES, SURELY THE STEPS LEADING TO THAT CONDITION MUST BE SUBJECT
TO THE SCRUTINY, CONTROL AND APPRAISAL OF NONE SAVE THE CONGRESS, THE
BODY HAVING EXCLUSIVE POWER TO MAKE THAT FINAL DETERMINATION. 

CONGRESS, POSSESSING EXCLUSIVE POWER OVER THE AMENDING PROCESS,
CANNOT BE BOUND BY AND IS UNDER NO DUTY TO ACCEPT THE PRONOUNCEMENTS
UPON THAT EXCLUSIVE POWER BY THIS COURT OR BY THE KANSAS COURTS. 
NEITHER STATE NOR FEDERAL COURTS CAN REVIEW THAT POWER.  THEREFORE, ANY
JUDICIAL EXPRESSION AMOUNTING TO MORE THAN MERE ACKNOWLEDGMENT OF
EXCLUSIVE CONGRESSIONAL POWER OVER THE POLITICAL PROCESS OF AMENDMENT
IS A MERE ADMONITION TO THE CONGRESS IN THE NATURE OF AN ADVISORY
OPINION, GIVEN WHOLLY WITHOUT CONSTITUTIONAL AUTHORITY. 

FN1  CF., HELVERING V. DAVIS, 301 U.S. 619, 639-40. 

FN2  LESER V. GARNETT, 258 U.S. 130, 137. 

FN3  JONES V. UNITED STATES, 137 U.S. 202, 212; FOSTER V. NEILSON, 2
PET. 253, 309, 314; LUTHER V. BORDEN, 7 HOW.  1, 42; IN RE COOPER, 143
U.S. 472, 503; PACIFIC STATES TELEPHONE CO. V. OREGON, 223 U.S. 118;
DAVIS V. OHIO, 241 U.S. 565, 569.  "AND IN THIS VIEW, IT IS NOT
MATERIAL TO INQUIRE, NOR IS IT THE PROVINCE OF THE COURT TO DETERMINE,
WHETHER THE EXECUTIVE ("POLITICAL DEPARTMENT") BE RIGHT OR WRONG.  IT
IS ENOUGH TO KNOW THAT IN THE EXERCISE OF HIS CONSTITUTIONAL FUNCTIONS,
HE HAD DECIDED THE QUESTION.  HAVING DONE THIS, UNDER THE
RESPONSIBILITIES WHICH BELONG TO HIM, IT IS OBLIGATORY ON THE PEOPLE
AND GOVERNMENT OF THE UNION.  ...  THIS COURT HAVE LAID DOWN THE RULE,
THAT THE ACTION OF THE POLITICAL BRANCHES OF THE GOVERNMENT IN A MATTER
THAT BELONGS TO THEM, IS CONCLUSIVE."  WILLIAMS V. SUFFOLK INS. CO., 13
PET. 415, 420. 

FN4 FIELD V. CLARK, 143 U.S. 649, 672. 

FN5  256 U.S. 368, 375. 

OPINION OF MR. JUSTICE FRANKFURTER. 

IT IS THE VIEW OF MR. JUSTICE ROBERTS, MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS AND MYSELF THAT THE PETITIONERS HAVE NO STANDING IN THIS
COURT. 

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.  THE CONSTITUTION FURTHER
EXPLICITLY INDICATED THE LIMITED AREA WITHIN WHICH JUDICIAL ACTION WAS
TO MOVE - HOWEVER FAR-REACHING THE CONSEQUENCES OF ACTION WITHIN THAT
AREA - BY EXTENDING "JUDICIAL POWER" ONLY TO "CASES" AND
"CONTROVERSIES."  BOTH BY WHAT THEY SAID AND BY WHAT THEY IMPLIED, THE
FRAMERS OF THE JUDICIARY ARTICLE GAVE MERELY THE OUTLINES OF WHAT WERE
TO THEM THE FAMILIAR OPERATIONS OF THE ENGLISH JUDICIAL SYSTEM AND ITS
MANIFESTATIONS ON THIS SIDE OF THE OCEAN BEFORE THE UNION.  JUDICIAL
POWER COULD COME INTO PLAY ONLY IN MATTERS THAT WERE THE TRADITIONAL
CONCERN OF THE COURTS AT WESTMINSTER AND ONLY IF THEY AROSE IN WAYS
THAT TO THE EXPERT FEEL OF LAWYERS CONSTITUTED "CASES" OR
"CONTROVERSIES."  IT WAS NOT FOR COURTS TO MEDDLE WITH MATTERS THAT
REQUIRED NO SUBTLETY TO BE IDENTIFIED AS POLITICAL ISSUES.  FN1  AND
EVEN AS TO THE KINDS OF QUESTIONS WHICH WERE THE STAPLE OF JUDICIAL
BUSINESS, IT WAS NOT FOR COURTS TO PASS UPON THEM AS ABSTRACT,
INTELLECTUAL PROBLEMS BUT ONLY IF A CONCRETE, LIVING CONTEST BETWEEN
ADVERSARIES CALLED FOR THE ARBITRAMENT OF LAW.  COMPARE MUSKRAT V.
UNITED STATES, 219 U.S. 346; TUTUN V. UNITED STATES, 270 U.S. 568;
WILLING V. CHICAGO AUDITORIUM ASSN., 277 U.S. 274; NASHVILLE, C. & ST.
L. RY. CO. V. WALLACE, 288 U.S. 249. 

AS ABSTRACTIONS, THESE GENERALITIES REPRESENT COMMON GROUND AMONG
JUDGES.  SINCE, HOWEVER, CONSIDERATIONS GOVERNING THE EXERCISE OF
JUDICIAL POWER ARE NOT MECHANICAL CRITERIA BUT DERIVE FROM CONCEPTIONS
REGARDING THE DISTRIBUTION OF GOVERNMENTAL POWERS IN THEIR MANIFOLD,
CHANGING GUISES, DIFFERENCES IN THE APPLICATION OF CANONS OF
JURISDICTION HAVE ARISEN FROM THE BEGINNING OF THE COURT'S HISTORY. 
FN2  CONSCIOUS OR UNCONSCIOUS LEANINGS TOWARD THE SERVICEABILITY OF THE
JUDICIAL PROCESS IN THE ADJUSTMENT OF PUBLIC CONTROVERSIES CLOTHED IN
THE FORM OF PRIVATE LITIGATION INEVITABLY AFFECT DECISIONS.  FOR THEY
INFLUENCE AWARENESS IN RECOGNIZING THE RELEVANCE OF CONCEDED DOCTRINES
OF JUDICIAL SELF-LIMITATION AND RIGOR IN ENFORCING THEM. 

OF ALL THIS, THE PRESENT CONTROVERSY FURNISHES ABUNDANT
ILLUSTRATION.  TWENTY-ONE MEMBERS OF THE KANSAS SENATE AND THREE
MEMBERS OF ITS HOUSE OF REPRESENTATIVES BROUGHT AN ORIGINAL MANDAMUS
PROCEEDING IN THE SUPREME COURT OF THAT STATE TO COMPEL THE SECRETARY
OF ITS SENATE TO ERASE AN ENDORSEMENT ON KANSAS "SENATE CONCURRENT
RESOLUTION NO. 3" OF JANUARY 1937, TO THE EFFECT THAT IT HAD BEEN
PASSED BY THE SENATE, AND INSTEAD TO ENDORSE THEREON THE WORDS "NOT
PASSED."  THEY ALSO SOUGHT TO RESTRAIN THE OFFICERS OF BOTH SENATE AND
HOUSE FROM AUTHENTICATING AND DELIVERING IT TO THE GOVERNOR OF THE
STATE FOR TRANSMISSION TO THE SECRETARY OF STATE OF THE UNITED STATES. 
THESE KANSAS LEGISLATORS RESORTED TO THEIR SUPREME COURT CLAIMING THAT
THERE WAS NO LONGER AN AMENDMENT OPEN FOR RATIFICATION BY KANSAS AND
THAT, IN ANY EVENT, IT HAD NOT BEEN RATIFIED BY THE "LEGISLATURE" OF
KANSAS, THE CONSTITUTIONAL ORGAN FOR SUCH RATIFICATION.  SEE ARTICLE V
OF THE CONSTITUTION OF THE UNITED STATES.  THE KANSAS SUPREME COURT
HELD THAT THE KANSAS LEGISLATORS HAD A RIGHT TO ITS JUDGMENT ON THESE
CLAIMS, BUT ON THE MERITS DECIDED AGAINST THEM AND DENIED A WRIT OF
MANDAMUS.  URGING THAT SUCH DENIAL WAS IN DEROGATION OF THEIR RIGHTS
UNDER THE FEDERAL CONSTITUTION, THE LEGISLATORS, HAVING BEEN GRANTED
CERTIORARI TO REVIEW THE KANSAS JUDGMENT, 303 U.S. 632, ASK THIS COURT
TO REVERSE IT. 

OUR POWER TO DO SO IS EXPLICITLY CHALLENGED BY THE UNITED STATES AS
AMICUS CURIAE, BUT WOULD IN ANY EVENT HAVE TO BE FACED.  SEE MANSFIELD,
C. & L.M. RY. CO. V. SWAN, 111 U.S. 379, 382.  TO WHOM AND FOR WHAT
CAUSES THE COURTS OF KANSAS ARE OPEN ARE MATTERS FOR KANSAS TO
DETERMINE.  FN3  BUT KANSAS CAN NOT DEFINE THE CONTOURS OF THE
AUTHORITY OF THE FEDERAL COURTS, AND MORE PARTICULARLY OF THIS COURT. 
IT IS OUR ULTIMATE RESPONSIBILITY TO DETERMINE WHO MAY INVOKE OUR
JUDGMENT AND UNDER WHAT CIRCUMSTANCES.  ARE THESE MEMBERS OF THE KANSAS
LEGISLATURE, THEREFORE, ENTITLED TO ASK US TO ADJUDICATE THE GRIEVANCES
OF WHICH THEY COMPLAIN? 

IT IS NOT OUR FUNCTION, AND IT IS BEYOND OUR POWER, TO WRITE LEGAL
ESSAYS OR TO GIVE LEGAL OPINIONS, HOWEVER SOLEMNLY REQUESTED AND
HOWEVER GREAT THE NATIONAL EMERGENCY.  SEE THE CORRESPONDENCE BETWEEN
SECRETARY OF STATE JEFFERSON AND CHIEF JUSTICE JAY, 3 JOHNSON,
CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY, 486-89.  UNLIKE THE ROLE
ALLOWED TO JUDGES IN A FEW STATE COURTS AND TO THE SUPREME COURT OF
CANADA, OUR EXCLUSIVE BUSINESS IS LITIGATION.  FN4  THE REQUISITES OF
LITIGATION ARE NOT SATISFIED WHEN QUESTIONS OF CONSTITUTIONALITY THOUGH
CONVEYED THROUGH THE OUTWARD FORMS OF A CONVENTIONAL COURT PROCEEDING
DO NOT BEAR SPECIAL RELATION TO A PARTICULAR LITIGANT.  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.  FN5  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;
FAIRCHILD V. HUGHES, 258 U.S. 126. 

IN THE FAMILIAR LANGUAGE OF JURISDICTION, THESE KANSAS LEGISLATORS
MUST HAVE STANDING IN THIS COURT.  WHAT IS THEIR DISTINCTIVE CLAIM TO
BE HERE, NOT POSSESSED BY EVERY KANSAN?  WHAT IS IT THAT THEY COMPLAIN
OF, WHICH COULD NOT BE COMPLAINED OF HERE BY ALL THEIR FELLOW
CITIZENS?  THE ANSWER REQUIRES ANALYSIS OF THE GRIEVANCES WHICH THEY
URGE.    THEY SAY THAT IT WAS BEYOND THE POWER OF THE KANSAS
LEGISLATURE, NO MATTER WHO VOTED OR HOW, TO RATIFY THE CHILD LABOR
AMENDMENT BECAUSE FOR KANSAS THERE WAS NO CHILD LABOR AMENDMENT TO
RATIFY.  ASSUMING THAT AN AMENDMENT PROPOSED BY THE CONGRESS DIES OF
INANITION AFTER WHAT IS TO BE DEEMED A "REASONABLE" TIME, THEY CLAIM
THAT, HAVING BEEN SUBMITTED IN 1924, THE PROPOSED CHILD LABOR AMENDMENT
WAS NO LONGER ALIVE IN 1937.  OR, IF ALIVE, IT WAS NO LONGER SO FOR
KANSAS BECAUSE, BY A PRIOR RESOLUTION OF REJECTION IN 1925, KANSAS HAD
EXHAUSTED HER POWER.  IN NO RESPECT, HOWEVER, DO THESE OBJECTIONS
RELATE TO ANY SECULAR INTEREST THAT PERTAINS TO THESE KANSAS
LEGISLATORS APART FROM INTERESTS THAT BELONG TO THE ENTIRE COMMONALTY
OF KANSAS.  THE FACT THAT THESE LEGISLATORS ARE PART OF THE RATIFYING
MECHANISM WHILE THE ORDINARY CITIZEN OF KANSAS IS NOT, IS WHOLLY
IRRELEVANT TO THIS ISSUE.  ON THIS ASPECT OF THE CASE THE PROBLEM WOULD
BE EXACTLY THE SAME IF ALL BUT ONE LEGISLATOR HAD VOTED FOR
RATIFICATION. 

INDEED THE CLAIM THAT THE AMENDMENT WAS DEAD OR THAT IT WAS NO LONGER
OPEN TO KANSAS TO RATIFY, IS NOT ONLY NOT AN INTEREST WHICH BELONGS
UNIQUELY TO THESE KANSAS LEGISLATORS; IT IS NOT EVEN AN INTEREST
SPECIAL TO KANSAS.  FOR IT IS THE COMMON CONCERN OF EVERY CITIZEN OF
THE UNITED STATES WHETHER THE AMENDMENT IS STILL ALIVE, OR WHETHER
KANSAS COULD BE INCLUDED AMONG THE NECESSARY "THREE-FOURTHS OF THE
SEVERAL STATES." 

THESE LEGISLATORS HAVE NO MORE STANDING ON THESE CLAIMS OF
UNCONSTITUTIONALITY TO ATTACK "SENATE CONCURRENT RESOLUTION NO. 3" THAN
THEY WOULD HAVE STANDING HERE TO ATTACK SOME KANSAS STATUTE CLAIMED BY
THEM TO OFFEND THE COMMERCE CLAUSE.  BY AS MUCH RIGHT COULD A MEMBER OF
THE CONGRESS WHO HAD VOTED AGAINST THE PASSAGE OF A BILL BECAUSE MOVED
BY CONSTITUTIONAL SCRUPLES URGE BEFORE THIS COURT OUR DUTY TO CONSIDER
HIS ARGUMENTS OF UNCONSTITUTIONALITY. 

CLEARLY A KANSAN LEGISLATOR WOULD HAVE NO STANDING HAD HE BROUGHT
SUIT IN A FEDERAL COURT.  CAN THE KANSAS SUPREME COURT TRANSMUTE THE
GENERAL INTEREST IN THESE CONSTITUTIONAL CLAIMS INTO THE INDIVIDUALIZED
LEGAL INTEREST INDISPENSABLE HERE?  NO DOUBT THE BOUNDS OF SUCH LEGAL
INTEREST HAVE A PENUMBRA WHICH GIVES SOME FREEDOM IN JUDGING FULFILMENT
OF OUR JURISDICTIONAL REQUIREMENTS.  THE DOCTRINES AFFECTING STANDING
TO SUE IN THE FEDERAL COURTS WILL NOT BE TREATED AS MECHANICAL
YARDSTICKS IN ASSESSING STATE COURT ASCERTAINMENTS OF LEGAL INTEREST
BROUGHT HERE FOR REVIEW.  FOR THE CREATION OF A VAST DOMAIN OF LEGAL
INTERESTS IS IN THE KEEPING OF THE STATES, AND FROM TIME TO TIME STATE
COURTS AND LEGISLATORS GIVE LEGAL PROTECTION TO NEW INDIVIDUAL
INTERESTS.  THUS, WHILE THE ORDINARY STATE TAXPAYER'S SUIT IS NOT
RECOGNIZED IN THE FEDERAL COURTS, IT AFFORDS ADEQUATE STANDING FOR
REVIEW OF STATE DECISIONS WHEN SO RECOGNIZED BY STATE COURTS.  COYLE V.
SMITH, 221 U.S. 559; HEIM V. MCCALL, 239 U.S. 175. 

BUT IT BY NO MEANS FOLLOWS THAT A STATE COURT RULING ON THE ADEQUACY
OF LEGAL INTEREST IS BINDING HERE.  THUS, IN TYLER V. JUDGES, 179 U.S.
405, THE NOTION WAS REJECTED THAT MERELY BECAUSE THE SUPREME JUDICIAL
COURT OF MASSACHUSETTS FOUND AN INTEREST OF SUFFICIENT LEGAL
SIGNIFICANCE FOR ASSAILING A STATUTE, THIS COURT MUST CONSIDER SUCH
CLAIM.  AGAIN, THIS COURT HAS CONSISTENTLY HELD THAT THE INTEREST OF A
STATE OFFICIAL IN VINDICATING THE CONSTITUTION OF THE UNITED STATES
GIVES HIM NO LEGAL STANDING HERE TO ATTACK THE CONSTITUTIONALITY OF A
STATE STATUTE IN ORDER TO AVOID COMPLIANCE WITH IT.  SMITH V. INDIANA,
191 U.S. 138; BRAXTON COUNTY COURT V. WEST VIRGINIA, 208 U.S. 192;
MARSHALL V. DYE, 231 U.S. 250; STEWART V. KANSAS CITY, 239 U.S. 14. 
NOR CAN RECOGNITION BY A STATE COURT OF SUCH AN UNDIFFERENTIATED,
GENERAL INTEREST CONFER JURISDICTION ON US. COLUMBUS & GREENVILLE RY.
CO. V. MILLER, 283 U.S. 96, REVERSING MILLER V. COLUMBUS & GREENVILLE
RY., 154 MISS.  317; 122 SO. 366.  CONTRARIWISE, OF COURSE, AN OFFICIAL
HAS A LEGALLY RECOGNIZED DUTY TO ENFORCE A STATUTE WHICH HE IS CHARGED
WITH ENFORCING.  AND SO, AN OFFICIAL WHO IS OBSTRUCTED IN THE
PERFORMANCE OF HIS DUTY UNDER A STATE STATUTE BECAUSE HIS STATE COURT
FOUND A VIOLATION OF THE UNITED STATES CONSTITUTION MAY, SINCE THE ACT
OF DECEMBER 23, 1914, 38 STAT. 790, ASK THIS COURT TO REMOVE THE
FETTERS AGAINST ENFORCEMENT OF HIS DUTY IMPOSED BY THE STATE COURT
BECAUSE OF AN ASSERTED MISCONCEPTION OF THE CONSTITUTION.  SUCH A
SITUATION IS REPRESENTED BY BLODGETT V. SILBERMAN, 277 U.S. 1, AND
SATISFIED THE REQUIREMENT OF LEGAL INTEREST IN BOYNTON V. HUTCHESON,
291 U.S. 656, CERTIORARI DISMISSED ON ANOTHER GROUND IN 292 U.S. 601. 
FN6 

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.  THE KANSAS LEGISLATORS COULD NOT BRING
SUIT EXPLICITLY ON BEHALF OF THE PEOPLE OF THE UNITED STATES TO
DETERMINE WHETHER KANSAS COULD STILL VOTE FOR THE CHILD LABOR
AMENDMENT.  THEY CAN NOT GAIN STANDING HERE BY HAVING BROUGHT SUCH A
SUIT IN THEIR OWN NAMES.  THEREFORE, NONE OF THE PETITIONERS CAN HERE
RAISE QUESTIONS CONCERNING THE POWER OF THE KANSAS LEGISLATURE TO
RATIFY THE AMENDMENT. 

THIS DISPOSES OF THE STANDING OF THE THREE MEMBERS OF THE LOWER HOUSE
WHO SEEK TO INVOKE THE JURISDICTION OF THIS COURT.  THEY HAVE NO
STANDING HERE.  EQUALLY WITHOUT LITIGIOUS STANDING IS THE MEMBER OF THE
KANSAS SENATE WHO VOTED FOR "SENATE CONCURRENT RESOLUTION NO. 3."  HE
CANNOT CLAIM THAT HIS VOTE WAS DENIED ANY PARLIAMENTARY EFFICACY TO
WHICH IT WAS ENTITLED.  THERE REMAINS FOR CONSIDERATION ONLY THE CLAIM
OF THE TWENTY NAY-VOTING SENATORS THAT THE LIEUTENANT-GOVERNOR OF
KANSAS, THE PRESIDING OFFICER OF ITS SENATE, HAD, UNDER THE KANSAS
CONSTITUTION, NO POWER TO BREAK THE TIE IN THE SENATORIAL VOTE ON THE
AMENDMENT, THEREBY DEPRIVING THEIR VOTES OF THE EFFECT OF CREATING SUCH
A TIE.  WHETHER THIS IS THE TRIBUNAL BEFORE WHICH SUCH A QUESTION CAN
BE RAISED BY THESE SENATORS MUST BE DETERMINED EVEN BEFORE CONSIDERING
WHETHER THE ISSUE WHICH THEY POSE IS JUSTICIABLE.  FOR THE LATTER
INVOLVES QUESTIONS AFFECTING THE DISTRIBUTION OF CONSTITUTIONAL POWER
WHICH SHOULD BE POSTPONED TO PRELIMINARY QUESTIONS OF LEGAL STANDING TO
SUE. 

THE RIGHT OF THE KANSAS SENATORS TO BE HERE IS RESTED ON RECOGNITION
BY LESER V. GARNETT, 258 U.S. 130, OF A VOTER'S RIGHT TO PROTECT HIS
FRANCHISE.  THE HISTORIC SOURCE OF THIS DOCTRINE AND THE REASONS FOR IT
WERE EXPLAINED IN NIXON V. HERNDON, 273 U.S. 536, 540.  THAT WAS AN
ACTION FOR $5,000 DAMAGES AGAINST THE JUDGES OF ELECTIONS FOR REFUSING
TO PERMIT THE PLAINTIFF TO VOTE AT A PRIMARY ELECTION IN TEXAS.  IN
DISPOSING OF THE OBJECTION THAT THE PLAINTIFF HAD NO CAUSE OF ACTION
BECAUSE THE SUBJECT MATTER OF THE SUIT WAS POLITICAL, MR. JUSTICE
HOLMES THUS SPOKE FOR THE COURT:  "OF COURSE THE PETITION CONCERNS
POLITICAL ACTION BUT IT ALLEGES AND SEEKS TO RECOVER FOR PRIVATE
DAMAGE.  THAT PRIVATE DAMAGE MAY BE CAUSED BY SUCH POLITICAL ACTION AND
MAY BE RECOVERED FOR IN A SUIT AT LAW HARDLY HAS BEEN DOUBTED FOR OVER
TWO HUNDRED YEARS, SINCE ASHBY V. WHITE, 2 LD. RAYM.  938, 3 ID. 320,
AND HAS BEEN RECOGNIZED BY THIS COURT."  "PRIVATE DAMAGE" IS THE CLUE
TO THE FAMOUS RULING IN ASHBY V. WHITE, SUPRA, AND DETERMINES ITS SCOPE
AS WELL AS THAT OF CASES IN THIS COURT OF WHICH IT IS THE
JUSTIFICATION.  THE JUDGMENT OF LORD HOLT IS PERMEATED WITH THE
CONCEPTION THAT A VOTER'S FRANCHISE IS A PERSONAL RIGHT, ASSESSABLE IN
MONEY DAMAGES, OF WHICH THE EXACT AMOUNT "IS PECULIARLY APPROPRIATE FOR
THE DETERMINATION OF A JURY," SEE WILEY V. SINKLER, 179 U.S. 58, 65,
AND FOR WHICH THERE IS NO REMEDY OUTSIDE THE LAW COURTS.  "ALTHOUGH
THIS MATTER RELATES TO THE PARLIAMENT," SAID LORD HOLT, "YET IT IS AN
INJURY PRECEDANEOUS TO THE PARLIAMENT, AS MY LORD HALE SAID IN THE CASE
OF BERNARDISTON V. SOAME, 2 LEV.  114, 116.  THE PARLIAMENT CANNOT
JUDGE OF THIS INJURY, NOR GIVE DAMAGE TO THE PLAINTIFF FOR IT:  THEY
CANNOT MAKE HIM A RECOMPENSE."  2 LD. RAYM.  938, 958. 

THE REASONING OF ASHBY V. WHITE AND THE PRACTICE WHICH HAS FOLLOWED
IT LEAVE INTRA-PARLIAMENTARY CONTROVERSIES TO PARLIAMENTS AND OUTSIDE
THE SCRUTINY OF LAW COURTS.  THE PROCEDURES FOR VOTING IN LEGISLATIVE
ASSEMBLIES - WHO ARE MEMBERS, HOW AND WHEN THEY SHOULD VOTE, WHAT IS
THE REQUISITE NUMBER OF VOTES FOR DIFFERENT PHASES OF LEGISLATIVE
ACTIVITY, WHAT VOTES WERE CAST AND HOW THEY WERE COUNTED - SURELY ARE
MATTERS THAT NOT MERELY CONCERN POLITICAL ACTION BUT ARE OF THE VERY
ESSENCE OF POLITICAL ACTION, IF "POLITICAL" HAS ANY CONNOTATION AT
ALL.  FIELD V. CLARK, 143 U.S. 649, 670, ET SEQ.; LESER V. GARNETT, 258
U.S. 130, 137.  IN NO SENSE ARE THEY MATTERS OF "PRIVATE DAMAGE."  THEY
PERTAIN TO LEGISLATORS NOT AS INDIVIDUALS BUT AS POLITICAL
REPRESENTATIVES EXECUTING THE LEGISLATIVE PROCESS.  TO OPEN THE LAW
COURTS TO SUCH CONTROVERSIES IS TO HAVE COURTS SIT IN JUDGMENT ON THE
MANIFOLD DISPUTES ENGENDERED BY PROCEDURES FOR VOTING IN LEGISLATIVE
ASSEMBLIES.  IF THE DOCTRINE OF ASHBY V. WHITE VINDICATING THE PRIVATE
RIGHTS OF A VOTING CITIZEN HAS NOT BEEN DOUBTED FOR OVER TWO HUNDRED
YEARS, IT IS EQUALLY SIGNIFICANT THAT FOR OVER TWO HUNDRED YEARS ASHBY
V. WHITE HAS NOT BEEN SOUGHT TO BE PUT TO PURPOSES LIKE THE PRESENT. 
IN SEEKING REDRESS HERE THESE KANSAS SENATORS HAVE WHOLLY MISCONCEIVED
THE FUNCTIONS OF THIS COURT.  THE WRIT OF CERTIORARI TO THE KANSAS
SUPREME COURT SHOULD THEREFORE BE DISMISSED. 

FN1  FOR AN EARLY INSTANCE OF THE ABSTENTION OF THE KING'S JUSTICES
FROM MATTERS POLITICAL, SEE THE DUKE OF YORK'S CLAIM TO THE CROWN,
HOUSE OF LORDS, 1460, 5 ROT.  PARL.  375, REPRINTED IN WAMBAUGH, CASES
ON CONSTITUTIONAL LAW, 1. 

FN2 SEE E.G. THE OPINION OF MR. JUSTICE IREDELL IN CHISHOLM V.
GEORGIA, 2 DALL.  419, 429; CONCURRING OPINION OF MR. JUSTICE JOHNSON
IN FLETCHER V. PECK, 6 CRANCH 87, 143; AND THE CASES COLLECTED IN THE
CONCURRING OPINION OF MR. JUSTICE BRANDEIS IN ASHWANDER V. TENNESSEE
VALLEY AUTHORITY, 297 U.S. 288, 341. 

FN3  THIS IS SUBJECT TO SOME NARROW EXCEPTIONS NOT HERE RELEVANT. 
SEE, E.G., MCKNETT V. ST. LOUIS & S.F. RY. CO., 292 U.S. 230. 

FN4  AS TO ADVISORY OPINIONS IN USE IN A FEW OF THE STATE COURTS, SEE
J. B. THAYER, ADVISORY OPINIONS, REPRINTED IN LEGAL ESSAYS BY J. B.
THAYER, AT 42 ET SEQ.; ARTICLE ON "ADVISORY OPINIONS," 1 ENC.  SOC. 
SCI. 475.  AS TO ADVISORY OPINIONS IN CANADA, SEE ATTORNEY-GENERAL FOR
ONTARIO V. ATTORNEY-GENERAL FOR CANADA (1912) A.C. 571.  SPEAKING OF
THE CANADIAN SYSTEM, LORD CHANCELLOR HALDANE, IN ATTORNEY GENERAL FOR
BRITISH COLUMBIA V. ATTORNEY GENERAL FOR CANADA (1914) A.C. 153, 162,
SAID:  "IT IS AT TIMES ATTENDED WITH INCONVENIENCES, AND IT IS NOT
SURPRISING THAT THE SUPREME COURT OF THE UNITED STATES SHOULD HAVE
STEADILY REFUSED TO ADOPT A SIMILAR PROCEDURE, AND SHOULD HAVE CONFINED
ITSELF TO ADJUDICATION ON THE LEGAL RIGHTS OF LITIGANTS IN ACTUAL
CONTROVERSIES."  FOR FURTHER ANIMADVERSIONS ON ADVISORY PRONOUNCEMENTS
BY JUDGES, SEE LORD CHANCELLOR SANKEY IN IN RE THE REGULATION AND
CONTROL OF AERONAUTICS IN CANADA (1932) A.C. 54, 66: "WE SYMPATHIZE
WITH THE VIEW EXPRESSED AT LENGTH BY NEWCOMBE, J., WHICH WAS CONCURRED
IN BY THE CHIEF JUSTICE, (OF CANADA) AS TO THE DIFFICULTY WHICH THE
COURT MUST EXPERIENCE IN ENDEAVORING TO ANSWER QUESTIONS PUT TO IT IN
THIS WAY." 

AUSTRALIA FOLLOWED OUR CONSTITUTIONAL PRACTICE IN RESTRICTING HER
COURTS TO LITIGIOUS BUSINESS.  THE EXPERIENCE OF ENGLISH HISTORY WHICH
LAY BEHIND IT WAS THUS PUT IN THE AUSTRALIAN CONSTITUTIONAL CONVENTION
BY MR. (LATER MR. JUSTICE) HIGGINS:  "I FEEL STRONGLY THAT IT IS MOST
INEXPEDIENT TO BREAK IN ON THE ESTABLISHED PRACTICE OF THE ENGLISH LAW,
AND SECURE DECISIONS ON FACTS WHICH HAVE NOT ARISEN YET.  OF COURSE, IT
IS A MATTER THAT LAWYERS HAVE EXPERIENCE OF EVERY DAY, THAT A JUDGE
DOES NOT GIVE THE SAME ATTENTION, HE CAN NOT GIVE THAT SAME ATTENTION,
TO A SUPPOSITIOUS CASE AS WHEN HE FEELS THE PRESSURE OF THE
CONSEQUENCES TO A LITIGANT BEFORE HIM.  ...  BUT HERE IS AN ATTEMPT TO
ALLOW THIS HIGH COURT, BEFORE CASES HAVE ARISEN, TO MAKE A
PRONOUNCEMENT UPON THE LAW THAT WILL BE BINDING.  I THINK THE
IMAGINATION OF JUDGES, LIKE THAT OF OTHER PERSONS, IS LIMITED, AND THEY
ARE NOT ABLE TO PUT BEFORE THEIR MINDS ALL THE COMPLEX CIRCUMSTANCES
WHICH MAY ARISE AND WHICH THEY OUGHT TO HAVE IN THEIR MINDS WHEN GIVING
A DECISION.  IF THERE IS ONE THING MORE THAN ANOTHER WHICH IS
RECOGNIZED IN BRITISH JURISPRUDENCE IT IS THAT A JUDGE NEVER GIVES A
DECISION UNTIL THE FACTS NECESSARY FOR THAT DECISION HAVE ARISEN." 
REP. NAT. AUSTRAL.  CONV.  DEB. (1897) 966-67. 

FN5  SEE THE SERIES OF CASES BEGINNING WITH HAYBURN'S CASE, 2 DALL. 
409, THROUGH UNITED STATES V. WEST VIRGINIA, 295 U.S. 463. 

FN6  A QUICK SUMMARY OF THE JURISDICTION OF THIS COURT OVER STATE
COURT DECISIONS LEAVES NO ROOM FOR DOUBT THAT THE FACT THAT THE PRESENT
CASE IS HERE ON CERTIORARI IS WHOLLY IRRELEVANT TO OUR ASSUMPTION OF
JURISDICTION.  SECTION 25 OF THE FIRST JUDICIARY ACT GAVE REVIEWING
POWER TO THIS COURT ONLY OVER STATE COURT DECISIONS DENYING A CLAIM OF
FEDERAL RIGHT.  THIS RESTRICTION WAS, OF COURSE, BORN OF FEAR OF
DISOBEDIENCE BY THE STATE JUDICIARIES OF NATIONAL AUTHORITY.  THE ACT
OF SEPTEMBER 6, 1916, 39 STAT. 726, WITHDREW FROM THIS OBLIGATORY
JURISDICTION CASES WHERE THE STATE DECISION WAS AGAINST A "TITLE,
RIGHT, PRIVILEGE, OR IMMUNITY" CLAIMED TO EXIST UNDER THE CONSTITUTION,
LAWS, TREATIES OR AUTHORITIES OF THE UNITED STATES.  THIS CHANGE, WHICH
WAS INSPIRED MAINLY BY A DESIRE TO ELIMINATE FROM REVIEW AS OF RIGHT
CASES ARISING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, LEFT SUCH
REVIEW ONLY IN CASES WHERE THE VALIDITY OF A TREATY, STATUTE OR
AUTHORITY OF THE UNITED STATES WAS DRAWN INTO QUESTION AND THE DECISION
WAS AGAINST THE VALIDITY, AND IN CASES WHERE THE VALIDITY OF A STATUTE
OF A STATE OR A STATE AUTHORITY WAS DRAWN INTO QUESTION ON THE GROUNDS
OF CONFLICT WITH FEDERAL LAW AND THE DECISION WAS IN FAVOR OF ITS
VALIDITY.  THE ACT OF FEBRUARY 13, 1925, 43 STAT. 936, 937, EXTENDED
THIS PROCESS OF RESTRICTING OUR OBLIGATORY JURISDICTION BY TRANSFERRING
TO REVIEW BY CERTIORARI CASES IN WHICH THE STATE COURT HAD HELD INVALID
AN "AUTHORITY" CLAIMED TO BE EXERCISED UNDER THE LAWS OF THE UNITED
STATES OR IN WHICH IT HAD UPHELD, AGAINST CLAIMS OF INVALIDITY ON
FEDERAL GROUNDS, AN "AUTHORITY" EXERCISED UNDER THE LAWS OF THE
STATES.  NEITHER THE TERMS OF THESE TWO RESTRICTIONS NOR THE
CONTROLLING COMMENTS IN COMMITTEE REPORTS OR BY MEMBERS OF THIS COURT
WHO HAD A SPECIAL SHARE IN PROMOTING THE ACTS OF 1916 AND 1925, GIVE
ANY SUPPORT FOR BELIEVING THAT BY CONTRACTING THE RANGE OF OBLIGATORY
JURISDICTION OVER STATE ADJUDICATIONS CONGRESS ENLARGED THE
JURISDICTION OF THE COURT BY REMOVING THE ESTABLISHED REQUIREMENT OF
LEGAL INTEREST AS A THRESHOLD CONDITION TO BEING HERE. 

NOR DOES THE ACT OF DECEMBER 23, 1914, 38 STAT. 790, TOUCH THE
PRESENT PROBLEM.  BY THAT ACT, CONGRESS FOR THE FIRST TIME GAVE THIS
COURT POWER TO REVIEW STATE COURT DECISIONS SUSTAINING A FEDERAL
RIGHT.  FOR THIS PURPOSE IT MADE CERTIORARI AVAILABLE.  THE COMMITTEE
REPORTS AND THE DEBATES ON THIS ACT PROVE THAT ITS PURPOSE WAS MERELY
TO REMOVE THE UNILATERAL QUALITY OF SUPREME COURT REVIEW OF STATE COURT
DECISIONS ON CONSTITUTIONAL QUESTIONS AS TO WHICH THIS COURT HAS THE
ULTIMATE SAY.  THE ACT DID NOT CREATE A NEW LEGAL INTEREST AS A BASIS
OF REVIEW HERE; IT BUILT ON THE SETTLED DOCTRINE THAT AN OFFICIAL HAS A
LEGALLY RECOGNIZABLE DUTY TO CARRY OUT A STATUTE WHICH HE IS SUPPOSED
TO ENFORCE. 

THUS, PRIOR TO THE ACT OF 1914, THE KENTUCKY CASE, POST, P. 474,
COULD NOT HAVE COME HERE AT ALL, AND PRIOR TO 1916, THE KANSAS CASE
WOULD HAVE COME HERE, IF AT ALL, BY WRIT OF ERROR.  BY ALLOWING CASES
FROM STATE COURTS WHICH PREVIOUSLY COULD NOT HAVE COME HERE AT ALL TO
COME HERE ON CERTIORARI THE ACT OF 1914 MERELY LIFTED THE PREVIOUS BAR
THAT A FEDERAL CLAIM HAD BEEN SUSTAINED - BUT LEFT EVERY OTHER
REQUISITE OF JURISDICTION UNCHANGED.  SIMILARLY, NO CHANGE IN THESE
REQUISITES WAS AFFECTED BY THE ACTS OF 1916 AND 1925 IN CONFINING
CERTAIN CATEGORIES OF LITIGATION FROM THE STATE COURTS TO OUR
DISCRETIONARY INSTEAD OF OBLIGATORY REVIEWING POWER. 

MR. JUSTICE BUTLER, DISSENTING. 

THE CHILD LABOR AMENDMENT WAS PROPOSED IN 1924; MORE THAN 13 YEARS
ELAPSED BEFORE THE KANSAS LEGISLATURE VOTED, AS THE DECISION JUST
ANNOUNCED HOLDS, TO RATIFY IT.  PETITIONERS INSIST THAT MORE THAN A
REASONABLE TIME HAD ELAPSED AND THAT, THEREFORE, THE ACTION OF THE
STATE LEGISLATURE IS WITHOUT FORCE.  BUT THIS COURT NOW HOLDS THAT THE
QUESTION IS NOT JUSTICIABLE, RELEGATES IT TO THE "CONSIDERATION OF THE
CONGRESS WHEN, IN THE PRESENCE OF CERTIFIED RATIFICATIONS BY THREE
FOURTHS OF THE STATES THE TIME ARRIVES FOR THE PROMULGATION OF THE
ADOPTION OF THE AMENDMENT" AND DECLARES THAT THE DECISION BY CONGRESS
WOULD NOT BE SUBJECT TO REVIEW BY THE COURTS. 

IN DILLON V. GLOSS, 256 U.S. 368, ONE IMPRISONED FOR TRANSPORTATION
OF INTOXICATING LIQUOR IN VIOLATION OF SEC. 3 OF THE NATIONAL
PROHIBITION ACT, INSTITUTED HABEAS CORPUS PROCEEDINGS TO OBTAIN HIS
RELEASE ON THE GROUND THAT THE EIGHTEENTH AMENDMENT WAS INVALID BECAUSE
THE RESOLUTION PROPOSING IT DECLARED THAT IT SHOULD NOT BE OPERATIVE
UNLESS RATIFIED WITHIN SEVEN YEARS.  THE AMENDMENT WAS RATIFIED IN LESS
THAN A YEAR AND A HALF.  WE DEFINITELY HELD THAT ARTICLE V IMPLIEDLY
REQUIRES AMENDMENTS SUBMITTED TO BE RATIFIED WITHIN A REASONABLE TIME
AFTER PROPOSAL; THAT CONGRESS MAY FIX A REASONABLE TIME FOR
RATIFICATION, AND THAT THE PERIOD OF SEVEN YEARS FIXED BY THE CONGRESS
WAS REASONABLE. 

WE SAID: 

"IT WILL BE SEEN THAT THIS ARTICLE SAYS NOTHING ABOUT THE TIME WITHIN
WHICH RATIFICATION MAY BE HAD - NEITHER THAT IT SHALL BE UNLIMITED NOR
THAT IT SHALL BE FIXED BY CONGRESS.  WHAT, THEN, IS THE REASONABLE
INFERENCE OR IMPLICATION?  IS IT THAT RATIFICATION MAY BE HAD AT ANY
TIME, AS WITHIN A FEW YEARS, A CENTURY OR EVEN A LONGER PERIOD; OR THAT
IT MUST BE HAD WITHIN SOME REASONABLE PERIOD WHICH CONGRESS IS LEFT
FREE TO DEFINE? 

"WE DO NOT FIND ANYTHING IN THE ARTICLE WHICH SUGGESTS THAT AN
AMENDMENT ONCE PROPOSED IS TO BE OPEN TO RATIFICATION FOR ALL TIME, OR
THAT RATIFICATION IN SOME OF THE STATES MAY BE SEPARATED FROM THAT IN
OTHERS BY MANY YEARS AND YET BE EFFECTIVE.  WE DO FIND THAT WHICH
STRONGLY SUGGESTS THE CONTRARY.  FIRST, PROPOSAL AND RATIFICATION ARE
NOT TREATED AS UNRELATED ACTS, BUT AS SUCCEEDING STEPS IN A SINGLE
ENDEAVOR, THE NATURAL INFERENCE BEING THAT THEY ARE NOT TO BE WIDELY
SEPARATED IN TIME.  SECONDLY, IT IS ONLY WHEN THERE IS DEEMED TO BE A
NECESSITY THEREFOR THAT AMENDMENTS ARE TO BE PROPOSED, THE REASONABLE
IMPLICATION BEING THAT WHEN PROPOSED THEY ARE TO BE CONSIDERED AND
DISPOSED OF PRESENTLY.  THIRDLY, AS RATIFICATION IS BUT THE EXPRESSION
OF THE APPROBATION OF THE PEOPLE AND IS TO BE EFFECTIVE WHEN HAD IN
THREE-FOURTHS OF THE STATES, THERE IS A FAIR IMPLICATION THAT IT MUST
BE SUFFICIENTLY CONTEMPORANEOUS IN THAT NUMBER OF STATES TO REFLECT THE
WILL OF THE PEOPLE IN ALL SECTIONS AT RELATIVELY THE SAME PERIOD, WHICH
OF COURSE RATIFICATION SCATTERED THROUGH A LONG SERIES OF YEARS WOULD
NOT DO.  THESE CONSIDERATIONS AND THE GENERAL PURPORT AND SPIRIT OF THE
ARTICLE LEAD TO THE CONCLUSION EXPRESSED BY JUDGE JAMESON (IN HIS
CONSTITUTIONAL CONVENTIONS, 4TH ED. SEC. 585) 'THAT AN ALTERATION OF
THE CONSTITUTION PROPOSED TODAY HAS RELATION TO THE SENTIMENT AND THE
FELT NEEDS OF TODAY, AND THAT, IF NOT RATIFIED EARLY WHILE THAT
SENTIMENT MAY FAIRLY BE SUPPOSED TO EXIST, IT OUGHT TO BE REGARDED AS
WAIVED, AND NOT AGAIN TO BE VOTED UPON, UNLESS A SECOND TIME PROPOSED
BY CONGRESS.'  THAT THIS IS THE BETTER CONCLUSION BECOMES EVEN MORE
MANIFEST WHEN WHAT IS COMPREHENDED IN THE OTHER VIEW IS CONSIDERED;
FOR, ACCORDING TO IT, FOUR AMENDMENTS PROPOSED LONG AGO - TWO IN 1789,
ONE IN 1810, AND ONE IN 1861 - ARE STILL PENDING AND IN A SITUATION
WHERE THEIR RATIFICATION IN SOME OF THE STATES MANY YEARS SINCE BY
REPRESENTATIVES OF GENERATIONS NOW LARGELY FORGOTTEN MAY BE EFFECTIVELY
SUPPLEMENTED IN ENOUGH MORE STATES TO MAKE THREE-FOURTHS BY
REPRESENTATIVES OF THE PRESENT OR SOME FUTURE GENERATION.  TO THAT VIEW
FEW WOULD BE ABLE TO SUBSCRIBE, AND IN OUR OPINION IT IS QUITE
UNTENABLE.  WE CONCLUDE THAT THE FAIR INFERENCE OR IMPLICATION FROM
ARTICLE V IS THAT THE RATIFICATION MUST BE WITHIN SOME REASONABLE TIME
AFTER THE PROPOSAL. 

"OF THE POWER OF CONGRESS, KEEPING WITHIN REASONABLE LIMITS, TO FIX A
DEFINITE PERIOD FOR THE RATIFICATION WE ENTERTAIN NO DOUBT.  ...
WHETHER A DEFINITE PERIOD FOR RATIFICATION SHALL BE FIXED SO THAT ALL
MAY KNOW WHAT IT IS AND SPECULATION ON WHAT IS A REASONABLE TIME MAY BE
AVOIDED, IS, IN OUR OPINION, A MATTER OF DETAIL WHICH CONGRESS MAY
DETERMINE AS AN INCIDENT OF ITS POWER TO DESIGNATE THE MODE OF
RATIFICATION.  IT IS NOT QUESTIONED THAT SEVEN YEARS, THE PERIOD FIXED
IN THIS INSTANCE, WAS REASONABLE, IF POWER EXISTED TO FIX A DEFINITE
TIME; NOR COULD IT WELL BE QUESTIONED CONSIDERING THE PERIODS WITHIN
WHICH PRIOR AMENDMENTS WERE RATIFIED." 

UPON THE REASONING OF OUR OPINION IN THAT CASE, I WOULD HOLD THAT
MORE THAN A REASONABLE TIME HAD ELAPSED* AND THAT THE JUDGMENT OF THE
KANSAS SUPREME COURT SHOULD BE REVERSED. 

*CHRONOLOGY OF CHILD LABOR AMENDMENT. 

(A STATE IS SAID TO HAVE "REJECTED" WHEN BOTH HOUSES OF ITS
LEGISLATURE PASSED RESOLUTIONS OF REJECTION, AND TO HAVE "REFUSED TO
RATIFY" WHEN BOTH HOUSES DEFEATED RESOLUTION FOR RATIFICATION.) 

JUNE 2, 1924, JOINT RESOLUTION DEPOSITED IN STATE DEPARTMENT.  IN
THAT YEAR, ARKANSAS RATIFIED; NORTH CAROLINA REJECTED.  RATIFICATION,
1; REJECTION, 1. 

1925, ARIZONA, CALIFORNIA AND WISCONSIN RATIFIED; FLORIDA, GEORGIA,
INDIANA, KANSAS, MAINE, MASSACHUSETTS, MINNESOTA, MISSOURI, NEW
HAMPSHIRE, PENNSYLVANIA, SOUTH CAROLINA, TENNESSEE, TEXAS, UTAH, AND
VERMONT REJECTED; CONNECTICUT, DELAWARE AND SOUTH DAKOTA REFUSED TO
RATIFY.  RATIFICATIONS, 4; REJECTIONS, 16; REFUSALS TO RATIFY, 3. 

1926, KENTUCKY AND VIRGINIA REJECTED.  RATIFICATIONS, 4; REJECTIONS,
18; REFUSALS TO RATIFY, 3. 

1927, MONTANA, RATIFIED; MARYLAND REJECTED.  RATIFICATIONS, 5;
REJECTIONS, 19; REFUSALS TO RATIFY, 3. 

1931, COLORADO RATIFIED.  RATIFICATIONS, 6; REJECTIONS, 19; REFUSALS
TO RATIFY, 3. 

1933, ILLINOIS, IOWA, MICHIGAN, NEW JERSEY, NORTH DAKOTA, OHIO,
OKLAHOMA, OREGON, WASHINGTON AND WEST VIRGINIA RATIFIED AS DID ALSO
MAINE, MINNESOTA, NEW HAMPSHIRE, AND PENNSYLVANIA, WHICH HAD REJECTED
IN 1925.  RATIFICATIONS, 20; REJECTIONS, (ELIMINATING STATES
SUBSEQUENTLY RATIFYING) 15; REFUSALS TO RATIFY, 3. 

1935, IDAHO AND WYOMING RATIFIED, AS DID UTAH AND INDIANA, WHICH HAD
REJECTED IN 1925.  AS IN 1925, CONNECTICUT REFUSED TO RATIFY. 
RATIFICATIONS, 24; REJECTIONS, 13; REFUSALS TO RATIFY, 3. 

1936, KENTUCKY, WHICH HAD REJECTED IN 1926, RATIFIED.  RATIFICATIONS,
25; REJECTIONS, 12; REFUSALS TO RATIFY, 3. 

1937, NEVADA AND NEW MEXICO RATIFIED, AS DID KANSAS, WHICH HAD
REJECTED IN 1925.  MASSACHUSETTS, WHICH HAD REJECTED IN 1925, REFUSED
TO RATIFY.  RATIFICATIONS, 28; REJECTIONS, 11; REFUSALS TO RATIFY, 3. 

SIX STATES ARE NOT INCLUDED IN THIS LIST:  ALABAMA, LOUISIANA,
MISSISSIPPI, NEBASKA, NEW YORK AND RHODE ISLAND.  IT APPEARS THAT THERE
HAS NEVER BEEN A VOTE IN ALABAMA OR RHODE ISLAND.  LOUISIANA HOUSE OF
REPRESENTATIVES HAS THREE TIMES (1924, 1934 AND 1936) DEFEATED
RESOLUTIONS FOR RATIFICATION.  IN MISSISSIPPI, THE SENATE ADOPTED
RESOLUTION FOR RATIFICATION IN 1934, BUT IN 1936 ANOTHER SENATE
RESOLUTION FOR RATIFICATION WAS ADVERSELY REPORTED.  IN NEBRASKA, THE
HOUSE DEFEATED RATIFICATION RESOLUTIONS IN 1927 AND 1935, BUT THE
SENATE PASSED SUCH A RESOLUTION IN 1929.  IN NEW YORK, RATIFICATION WAS
DEFEATED IN THE HOUSE IN 1935 AND 1937, AND IN THE LATTER YEAR, THE
SENATE PASSED SUCH A RESOLUTION. 

THE POINT THAT THE QUESTION - WHETHER MORE THAN A REASONABLE TIME HAD
ELAPSED - IS NOT JUSTICIABLE BUT ONE FOR CONGRESS AFTER ATTEMPTED
RATIFICATION BY THE REQUISITE NUMBER OF STATES, WAS NOT RAISED BY THE
PARTIES OR BY THE UNITED STATES APPEARING AS AMICUS CURIAE; IT WAS NOT
SUGGESTED BY US WHEN ORDERING REARGUMENT.  AS THE COURT, IN THE DILLON
CASE, DID DIRECTLY DECIDE UPON THE REASONABLENESS OF THE SEVEN YEARS
FIXED BY THE CONGRESS, IT OUGHT NOT NOW, WITHOUT HEARING ARGUMENT UPON
THE POINT, HOLD ITSELF TO LACK POWER TO DECIDE WHETHER MORE THAN 13
YEARS BETWEEN PROPOSAL BY CONGRESS AND ATTEMPTED RATIFICATION BY KANSAS
IS REASONABLE. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS OPINION. 
..END :







CHANDLER V. WISE, 307 U.S. 474 


NO. 14.  ARGUED OCTOBER 10, 11, 1938.  REARGUED APRIL 18, 1939.  -
DECIDED JUNE 5, 1939.  - 271 KY. 252 - 111 S.W.2D 633, DISMISSED. 


SUIT WAS BROUGHT IN A STATE COURT TO RESTRAIN THE GOVERNOR AND OTHER
STATE OFFICIALS FROM SENDING TO THE SECRETARY OF STATE OF THE UNITED
STATES A CERTIFIED COPY OF A RESOLUTION ENACTED BY THE STATE
LEGISLATURE PURPORTING TO RATIFY THE PROPOSED CHILD LABOR AMENDMENT TO
THE FEDERAL CONSTITUTION, IT BEING ALLEGED THAT SUCH ATTEMPTED
RATIFICATION WAS ILLEGAL AND VOID.  HELD: 

THAT ALTHOUGH THE STATE COURT HAD JURISDICTION IN LIMINE, THE ACT OF
THE GOVERNOR IN FORWARDING THE CERTIFICATION TO THE FEDERAL SECRETARY
OF STATE AFTER THE BEGINNING OF THE SUIT AND AFTER A RESTRAINING ORDER
AND SUMMONS HAD BEEN ISSUED, BUT BEFORE ACTUAL SERVICE AND WITHOUT
KNOWLEDGE OF THE PENDENCY OF THE PROCEEDING, HAD LEFT NO CONTROVERSY
SUSCEPTIBLE OF JUDICIAL DETERMINATION; AND THAT A WRIT OF CERTIORARI
FROM THIS COURT TO REVIEW THE FINAL JUDGMENT SHOULD THEREFORE BE
DISMISSED. 

CHANDLER, GOVERNOR OF KENTUCKY, ET AL. V. WISE ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY. 

CERTIORARI, 303 U.S. 634, TO REVIEW THE AFFIRMANCE BY THE COURT BELOW
OF A JUDGMENT ENTERED PURSUANT TO ITS OPINION ON AN EARLIER REVIEW, 270
KY. 1.  THE SUIT WAS BROUGHT BY INDIVIDUALS - CITIZENS, TAXPAYERS, AND
VOTERS IN KENTUCKY - TO RESTRAIN THE GOVERNOR AND OFFICERS OF THE
GENERAL ASSEMBLY FROM SENDING TO THE SECRETARY OF STATE OF THE UNITED
STATES A CERTIFIED COPY OF A RESOLUTION OF THE LEGISLATURE PURPORTING
TO RATIFY THE PROPOSED CHILD LABOR AMENDMENT, AND FOR A JUDGMENT
DECLARING THE LEGISLATIVE ACT TO BE ILLEGAL AND VOID BECAUSE OF A
REJECTION OF THE SAME PROPOSED AMENDMENT BY AN EARLIER LEGISLATURE OF
THE STATE, AS WELL AS BY MORE THAN A MAJORITY OF THE LEGISLATURES OF
THE SEVERAL STATES, AND FURTHER BECAUSE MORE THAN A REASONABLE TIME FOR
RATIFICATION HAD ELAPSED SINCE THE AMENDMENT WAS FIRST PROPOSED. 

OPINION OF THE COURT BY MR. CHIEF JUSTICE HUGHES, ANNOUNCED BY MR.
JUSTICE STONE. 

IN JANUARY, 1937, THE LEGISLATURE OF KENTUCKY ADOPTED A RESOLUTION
PURPORTING TO RATIFY THE CONSTITUTIONAL AMENDMENT PROPOSED BY THE
CONGRESS IN 1924 AND KNOWN AS THE "CHILD LABOR AMENDMENT."  FN1 

RESPONDENTS, CITIZENS, TAXPAYERS AND VOTERS IN KENTUCKY, BROUGHT THIS
SUIT IN THE STATE COURT TO RESTRAIN THE GOVERNOR OF THE COMMONWEALTH
AND THE OFFICERS OF THE GENERAL ASSEMBLY FROM SENDING CERTIFIED COPIES
OF THE RESOLUTION TO THE SECRETARY OF STATE OF THE UNITED STATES AND
THE PRESIDING OFFICERS OF THE SENATE AND HOUSE OF REPRESENTATIVES, AND
FOR A JUDGMENT DECLARING THE ACTION OF THE GENERAL ASSEMBLY TO BE
ILLEGAL AND VOID.  THE COMPLAINT STATED THAT IN 1926 THE PROPOSED
AMENDMENT HAD BEEN REJECTED BY THE GENERAL ASSEMBLY OF THE COMMONWEALTH
AND ALSO BY MORE THAN A MAJORITY OF THE LEGISLATURES OF THE STATES, AND
THAT THE GENERAL ASSEMBLY COULD NOT THEREAFTER LEGALLY RECONSIDER AND
ADOPT THE AMENDMENT; AND, FURTHER, THAT ITS ACTION WAS NOT TAKEN WITHIN
A REASONABLE TIME AFTER THE AMENDMENT WAS PROPOSED. 

UPON THE FILING OF THE PETITION, A RESTRAINING ORDER WAS GRANTED AND
SUMMONS WAS ISSUED.  ON THE SAME DAY, BUT BEFORE THE GOVERNOR WAS
ACTUALLY SERVED WITH A COPY OF THE RESTRAINING ORDER OR SUMMONS, HE
FORWARDED BY MAIL A CERTIFIED COPY OF THE RESOLUTION TO THE SECRETARY
OF STATE.  IT IS NOT CLAIMED THAT THE GOVERNOR THEN KNEW OF THE
PENDENCY OF THE PROCEEDING. 

PLAINTIFFS THEN FILED AN AMENDED PETITION SETTING FORTH THE ACTION
TAKEN BY THE GOVERNOR AND SOUGHT A MANDATORY INJUNCTION TO REQUIRE HIM
TO NOTIFY THE SECRETARY OF STATE OF THE PENDENCY OF THE SUIT AND THAT
THE NOTICE WHICH HE HAD SENT WAS VOID AND SHOULD BE DISREGARDED.  THAT
ACTION WAS NOT TAKEN.  DEFENDANTS FILED A GENERAL DEMURRER WHICH WAS
SUSTAINED IN THE CIRCUIT COURT BUT ITS JUDGMENT WAS REVERSED BY THE
COURT OF APPEALS.  270 KY. 1; 108 S.W.2D 1024. 

THE COURT GAVE OPPORTUNITY ON THE REMAND TO THE CIRCUIT COURT, WITH
DIRECTIONS TO OVERRULE THE DEMURRER, FOR SUCH FURTHER PROCEEDINGS AS
WERE NOT INCONSISTENT WITH ITS VIEWS.  UPON THAT REMAND THE DEFENDANTS
DECLINED TO PLEAD FURTHER AND JUDGMENT WAS ENTERED IN ACCORDANCE WITH
THE OPINION OF THE COURT OF APPEALS.  THE JUDGMENT SO ENTERED SET FORTH
(1) THAT AN ACTUAL CONTROVERSY EXISTED BETWEEN THE PARTIES, THAT THE
PLAINTIFFS HAD THE RIGHT TO MAINTAIN THE SUIT AND THE COURT HAD
JURISDICTION; (2) THAT THE RESOLUTION OF THE LEGISLATURE PURPORTING TO
RATIFY THE PROPOSED AMENDMENT WAS VOID, NOT HAVING BEEN RATIFIED
ACCORDING TO THE PROVISIONS OF THE CONSTITUTION OF THE UNITED STATES;
(3) THAT THE NOTICE GIVEN BY THE GOVERNOR TO THE SECRETARY OF STATE WAS
OF NO EFFECT; (4) THAT THE CLERK OF THE COURT SHOULD GIVE OFFICIAL
NOTICE TO THE DEPARTMENT OF STATE THAT THE RESOLUTION PURPORTING TO
RATIFY THE AMENDMENT WAS INVALID, THAT IT HAD NOT BEEN RATIFIED
ACCORDING TO THE PROVISIONS OF THE CONSTITUTION OF THE UNITED STATES,
AND THAT THE NOTICE GIVEN BY THE GOVERNOR WAS OF NO EFFECT.  THE CLERK
WAS FURTHER DIRECTED TO SEND A DULY AUTHENTICATED COPY OF THE JUDGMENT
TO THE SECRETARY OF STATE BY REGISTERED MAIL. 

ON APPEAL, THAT JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS.  WE
GRANTED CERTIORARI.  303 U.S. 634. 

WE THINK THAT, WHILE THE STATE COURT HAD JURISDICTION IN LIMINE, THE
WRIT OF CERTIORARI SHOULD BE DISMISSED UPON THE GROUND THAT AFTER THE
GOVERNOR OF KENTUCKY HAD FORWARDED THE CERTIFICATION OF THE
RATIFICATION OF THE AMENDMENT TO THE SECRETARY OF STATE OF THE UNITED
STATES THERE WAS NO LONGER A CONTROVERSY SUSCEPTIBLE OF JUDICIAL
DETERMINATION.  DISMISSED. 

FN1  43 STAT. 670. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER THINK THAT THE JUDGMENT
OF THE COURT OF APPEALS OF KENTUCKY SHOULD BE AFFIRMED ON THE AUTHORITY
OF DILLON V. GLOSS, 256 U.S. 368, AND FOR THE REASONS STATED IN THE
DISSENTING OPINION IN COLEMAN V. MILLER, ANTE, P. 470. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS, CONCURRING: 

FOR THE REASONS STATED IN CONCURRING OPINION IN COLEMAN V. MILLER,
ANTE, P. 456, WE DO NOT BELIEVE THAT STATE OR FEDERAL COURTS HAVE ANY
JURISDICTION TO INTERFERE WITH THE AMENDING PROCESS. 

WE THEREFORE CONCUR IN THE DISMISSAL. 
..END :























BALDWIN V. MILLING CO., 307 U.S. 478 


NO. 650.  ARGUED APRIL 21, 1939.  - DECIDED JUNE 5, 1939.  - 343 MO. 915
- 122 S.W.2D 890, REVERSED. 


1.  WHERE A CARRIER, HAVING BEEN ORDERED BY THE INTERSTATE COMMERCE
COMMISSION TO MAKE REPARATION TO A SHIPPER FOR TARIFF CHARGES THEN
FOUND BY THE COMMISSION TO HAVE BEEN EXCESSIVE, PAYS THE REQUIRED
AMOUNT UPON DEMAND OF THE SHIPPER WITHOUT WAITING TO BE SUED UNDER THE
DISADVANTAGES PRESCRIBED BY SEC. 16(2) OF THE INTERSTATE COMMERCE ACT,
THE PAYMENT IS NOT VOLUNTARY; AND WHERE AFTERWARDS, UPON REHEARING, THE
COMMISSION SETS ASIDE THE REPARATION ORDER, BECAUSE THE FINDING OF
UNREASONABLE RATES UPON WHICH IT WAS BASED WAS ERRONEOUS, THE CARRIER
MAY MAINTAIN A SUIT TO RECOVER THE PAYMENT FROM THE SHIPPER.  THIS
ACCORDS WITH THE POLICY OF THE ACT.  P. 481. 

THE FACT THAT THE SHIPPER PAID PART OF THE MONEY TO AN EXPERT, WHO
ACTED FOR IT BEFORE THE COMMISSION IN PROCURING THE REPARATION,
RECOVERY OF WHICH IS BARRED BY LIMITATIONS, AND HAS USED THE REMAINDER
FOR ITS OWN PURPOSES, FURNISHES NO EQUITABLE DEFENSE TO THE SUIT FOR
REFUND.  P. 485. 

2.  EQUITABLE CONSIDERATIONS CAN NOT JUSTIFY FAILURE OF A CARRIER TO
COLLECT, OR OF A SHIPPER TO PAY, THE TARIFF CHARGES REQUIRED BY THE
INTERSTATE COMMERCE ACT.  P. 485. 

BALDWIN ET AL., TRUSTEES, V. SCOTT COUNTY MILLING CO. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

CERTIORARI, 306 U.S. 625, TO REVIEW A JUDGMENT OF THE COURT BELOW,
WHICH AFFIRMED A JUDGMENT OF A CIRCUIT COURT OF MISSOURI FOR THE
DEFENDANT, IN AN ACTION BROUGHT BY THE TRUSTEES OF THE MISSOURI PACIFIC
RAILWAY COMPANY TO RECOVER AN AMOUNT OF MONEY WHICH THE COMPANY HAD
PAID TO THE DEFENDANT IN PURSUANCE OF AN ORDER OF REPARATION MADE BY
THE INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THE DECISION IN THIS CASE DEPENDS ON PROVISIONS OF THE INTERSTATE
COMMERCE ACT AND ORDERS OF THE COMMISSION. 

IN SEPTEMBER, 1924, RESPONDENT AND OTHERS COMPLAINED TO THE
COMMISSION THAT THE TARIFF CHARGES THEY HAD BEEN AND WERE THEN PAYING
THE MISSOURI PACIFIC AND OTHER CARRIERS FOR THE TRANSPORTATION OF COAL
FROM MINES IN SOUTHERN ILLINOIS AND WESTERN KENTUCKY TO DESTINATIONS IN
SOUTH-EASTERN MISSOURI AND NORTHEASTERN ARKANSAS, WERE EXCESSIVE.  THEY
ASKED THE COMMISSION TO ESTABLISH REASONABLE RATES FOR THE FUTURE, TO
ASCERTAIN THE AMOUNT OF DAMAGES THEY HAD SUSTAINED, AND TO ORDER THE
CARRIERS TO MAKE REPARATION.  AFTER HEARINGS THE COMMISSION, BY ORDER
OF FEBRUARY 11, 1929, AND SUPPLEMENTAL ORDER OF MARCH 11 IN THE SAME
YEAR, FOUND THAT THE CARRIERS' TARIFF RATES HAD BEEN, WERE, AND FOR THE
FUTURE WOULD BE, UNREASONABLE TO AN EXTENT INDICATED, PRESCRIBED AS
REASONABLE LOWER RATES TO BE ESTABLISHED FOR THE FUTURE, AND FOUND THAT
COMPLAINANTS INCLUDING RESPONDENT, HAVING PAID EXCESSIVE CHARGES, HAD
SUFFERED DAMAGES AND WERE ENTITLED TO REPARATION TO THE EXTENT OF THE
DIFFERENCE BETWEEN AMOUNTS PAID AND WHAT THE CHARGES WOULD HAVE BEEN
UNDER THE RATES THAT THE COMMISSION THEN FOUND REASONABLE. 

ON DEMAND OF THE RESPONDENT, MADE IN ACCORDANCE WITH THE COMMISSION'S
RULES OF PRACTICE,  FN1 THE MISSOURI PACIFIC BEFORE APRIL 20, 1929,
PAID IT $23,994.33, BEING THE AMOUNTS DIRECTED TO BE PAID BY THE
REPARATION ORDER ON ACCOUNT OF SHIPMENTS FOR WHICH THE MISSOURI
PACIFIC, DELIVERING CARRIER, HAD COLLECTED THE CHARGES.  AFTER DENIAL
OF A NUMBER OF PETITIONS FOR REHEARING FILED BY THE MISSOURI PACIFIC
AND OTHER CARRIERS, THE COMMISSION, NOVEMBER 2, 1931, REOPENED THE
CASE.  JULY 3, 1933, AFTER HEARINGS AND PROTRACTED CONTEST, IT FOUND
THE RATES THAT IT HAD THERETOFORE CONDEMNED WERE NOT UNREASONABLE AND
SET ASIDE ALL FINDINGS AND ORDERS THAT IT HAD MADE, INCLUDING THE
REPARATION ORDER ON WHICH RESPONDENT HAD COLLECTED. 

OCTOBER 30, 1934, PETITIONERS, WHO HAD BEEN APPOINTED TRUSTEES OF THE
MISSOURI PACIFIC, ASKED RESPONDENT TO REFUND THE AMOUNT IT HAD
RECEIVED; RESPONDENT REFUSED.  TO RECOVER WITH INTEREST THE AMOUNT THE
MISSOURI PACIFIC PAID, PETITIONERS BROUGHT THIS SUIT IN A CIRCUIT COURT
OF MISSOURI; IT GAVE JUDGMENT FOR RESPONDENT.  THE SUPREME COURT
AFFIRMED.  IT HELD THAT, AS THE MISSOURI PACIFIC HAD PAID THE AMOUNT OF
THE REPARATION AWARD WITH FULL KNOWLEDGE OF THE FACTS WITHOUT DENYING
LIABILITY OR WAITING TO BE SUED, THE PAYMENT WAS A VOLUNTARY ONE AND
THAT THEREFORE PETITIONERS WERE NOT ENTITLED TO RECOVER.  THE COURT
ALSO HELD THAT BY THE VOLUNTARY PAYMENT THE MISSOURI PACIFIC CAUSED
RESPONDENT TO BELIEVE THAT THE MATTER WAS A CLOSED TRANSACTION AND THAT
IN THE CIRCUMSTANCES, TO WHICH REFERENCE WILL LATER BE MADE, IT WOULD
BE INEQUITABLE TO REQUIRE RESPONDENT TO REFUND. 

WE THINK THAT PETITIONERS ARE ENTITLED TO RECOVER. 

1.  IN ABSENCE OF PRIOR FINDING BY THE COMMISSION THAT THE TARIFF
CHARGES COLLECTED FOR INTERSTATE TRANSPORTATION ARE UNREASONABLE, THERE
CAN BE NO ENFORCEABLE CLAIM FOR DAMAGES CAUSED BY EXACTIONS ACCORDING
TO THE TARIFF.  TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204
U.S. 426, 444.  ROBINSON V. BALTIMORE & OHIO R. CO., 222 U.S. 506,
510.  MITCHELL COAL CO. V. PENNSYLVANIA R. CO., 230 U.S. 247, 259.  AND
SEE LEWIS-SIMAS-JONES CO. V. SOUTHERN PACIFIC R. CO., 283 U.S. 654,
661; BALTIMORE & OHIO R. CO. V. BRADY, 288 U.S. 448, 458.  PRIOR TO THE
FINDINGS AND ORDERS OF THE COMMISSION, FEBRUARY 11 AND MARCH 11, 1929,
RESPONDENT WAS NOT PERMITTED TO COLLECT, NOR WAS THE MISSOURI PACIFIC
OR OTHER CARRIERS ALLOWED TO PAY, THE DAMAGES CLAIMED BY RESPONDENT. 
BUT WHEN THE COMMISSION MADE THE FINDINGS AND REPARATION ORDERS, THE
CARRIERS, IN THE ABSENCE OF FACTS CONSTITUTING A DEFENSE, WERE IN DUTY
BOUND TO PAY IN ACCORDANCE WITH THE ORDERS. 

COMPLAINANT ENTITLED TO AN AWARD OF DAMAGES, IT SHALL DIRECT THE
CARRIER TO PAY COMPLAINANT THE SUM TO WHICH HE IS FOUND ENTITLED WITHIN
A SPECIFIED TIME.  SECTION 16(2)  FN3  DECLARES THAT IF THE CARRIER
DOES NOT COMPLY WITHIN THE TIME LIMIT, COMPLAINANT MAY BRING SUIT
SETTING FORTH THE CAUSES FOR WHICH HE CLAIMS DAMAGES.  IT ALSO DECLARES
THAT, IN CLAIMANTS' SUITS IN FEDERAL COURTS, THE FINDINGS AND ORDER OF
THE COMMISSION SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THEREIN
STATED.  IT ALLOWS PLAINTIFFS, IF THEY PREVAIL, TO RECOVER REASONABLE
ATTORNEYS' FEES.  BY THUS LAYING ON THE CARRIERS THE BURDEN OF BRINGING
FORWARD EVIDENCE TO OVERCOME PRESUMPTIONS CREATED AGAINST THEM, AND BY
COMPELLING THEM, IF DEFEATED, TO PAY PLAINTIFFS' ATTORNEYS' FEES IN
ADDITION TO THE INTEREST ALLOWED BY LAW, THE ACT UNMISTAKABLY EVIDENCES
PURPOSE DIRECTLY TO PREVENT INTERPOSITION OF PLEAS LACKING MERIT AND SO
COERCIVELY TO BRING ABOUT PROMPT PAYMENT OF THE COMMISSION'S AWARDS. 
IN MEEKER & CO. V. LEHIGH VALLEY R. CO., 236 U.S. 412, THIS COURT,
UPHOLDING THE CLAUSE AS TO ATTORNEYS' FEES, SAID (P. 433):  "THE
PROVISION IS LEVELED AGAINST COMMON CARRIERS ENGAGED IN INTERSTATE
COMMERCE, A QUASI PUBLIC BUSINESS, AND IS CONFINED TO CASES WHEREIN A
RECOVERY IS HAD FOR DAMAGES RESULTING FROM THE CARRIER'S VIOLATION OF
SOME DUTY IMPOSED IN THE PUBLIC INTEREST BY THE ACT TO REGULATE
COMMERCE.  ... ONE OF ITS PURPOSES IS TO PROMOTE A CLOSER OBSERVANCE BY
CARRIERS OF THE DUTIES SO IMPOSED; AND THAT THERE IS ALSO A PURPOSE TO
ENCOURAGE THE PAYMENT, WITHOUT SUIT, OF JUST DEMANDS DOES NOT MILITATE
AGAINST ITS VALIDITY.  AND IN ST. LOUIS & S.F.R. CO. V. SPILLER, 275
U.S. 156, REFERRING TO THE SAME PROVISION, WE SAID (P. 159):  "THE
PURPOSE OF CONGRESS IN MAKING THE PROVISION CONCERNING COSTS WAS TO
DISCOURAGE HARASSING RESISTANCE BY A CARRIER TO A REPARATION ORDER." 

THERE IS NOTHING IN THE RECORD TO INDICATE, NOR IS IT SUGGESTED BY
RESPONDENT OR IN THE STATE COURT'S OPINION, THAT THE MISSOURI PACIFIC
HAD ANY DEFENSE AGAINST RESPONDENT'S CLAIM UNDER THE FINDINGS AND
REPARATION ORDER.  THE LIABILITY SO ESTABLISHED PERSISTED UNTIL PAYMENT
OF THE CLAIM.  IT MAY NOT REASONABLY BE HELD THAT THE MISSOURI PACIFIC
WAS BOUND TO AWAIT SUIT OR DELAY ADJUDICATION BY FALSE OR FRIVOLOUS
ANSWER WHILE EXPENSES OF LITIGATION, INTEREST, AND FEES FOR ITS
ADVERSARY'S COUNSEL ACCUMULATED.  SECTIONS 16(1) AND 16(2) INDICATE
LEGISLATIVE PURPOSE TO PENALIZE FAILURE OF CARRIERS, HAVING NO DEFENSE,
TO PAY DAMAGES IN ACCORDANCE WITH THE TERMS OF THE COMMISSION'S
FINDINGS AND REPARATION ORDERS. 

BUT BY SEC. 16A,  FN4  THE COMMISSION WAS EMPOWERED TO SET ASIDE ITS
ORDERS.  THAT SECTION WAS DRAFTED BY THE COMMISSION AT THE REQUEST OF
THE SENATE COMMITTEE ON INTERSTATE COMMERCE AND WAS ADDED BY THE
HEPBURN ACT OF 1906.  IT WAS "A NEW SECTION  ...  WHICH EXPRESSLY
AUTHORIZES THE COMMISSION TO REVIEW AND MODIFY ITS OWN DECISIONS."  FN5
IT WAS EXPOUNDED BY THE COMMISSION AS "INTENDED TO GIVE THE COMMISSION
A RIGHT TO REHEAR A MATTER FOR THE PURPOSE OF CORRECTING ANY INJUSTICE
IN A PREVIOUS ORDER."  CATTLE RAISERS' ASSN. V. MISSOURI, K. & T. RY.
CO., 12 I.C.C. 1, 3.  WHILE CAREFUL TO PREVENT APPLICATIONS FOR
REHEARING FROM BEING USED TO AVOID OR DELAY COMPLIANCE WITH THE
COMMISSION'S ORDERS, IT EMPOWERS THE COMMISSION AT ANY TIME TO GRANT
REHEARINGS AS TO ANY DECISION, ORDER, OR REQUIREMENT AND TO REVERSE,
CHANGE, OR MODIFY THE SAME.  RESPONDENT MADE ITS DEMAND AND COLLECTED
THE MONEY SUBJECT TO THE AUTHORITY OF THE COMMISSION TO SET ASIDE THE
ORDER WHICH AUTHORIZED PAYMENT OF THE SAME. 

THE CLAUSES OF SEC. 16A THAT AUTHORIZE THE COMMISSION TO CONSIDER
FACTS ARISING AFTER THE FORMER HEARING AND THAT MAKE ITS DECISIONS
AFTER REHEARING SUBJECT TO THE SAME PROVISIONS AS AN ORIGINAL ORDER
MANIFEST THE PURPOSE OF THE ACT TO REQUIRE CARRIERS TO SERVE FOR, AND
THE SHIPPERS TO PAY, THE LAWFUL TARIFF RATES.  THE ACT CONDEMNS EVERY
DEVIATION FROM LAWFUL TARIFF RATES.  IT DECLARES THAT NO CARRIER MAY
LAWFULLY COLLECT A GREATER OR LESS OR DIFFERENT COMPENSATION FOR
TRANSPORTATION THAN THE RATES SPECIFIED IN THE TARIFF FILED NOR REFUND
OR REMIT ANY PORTION OF THE RATES SO SPECIFIED.  SEC. 6(7); SEE ALSO
SEC. 10(2).  SIMILARLY, IT CONDEMNS THE OBTAINING OF TRANSPORTATION FOR
LESS THAN THE LEGALLY ESTABLISHED RATE.  SEE SEC. 10(3) AND (4). 
INVOLUNTARY REBATES AS WELL AS THOSE THAT ARE VOLUNTARY ARE
PROHIBITED.  LOWDEN V. SIMONDS-SHIELDS-LONSDALE GRAIN CO., 306 U.S.
516.  PITTSBURGH, C., C. & ST. L. RY. CO. V. FINK, 250 U.S. 577, 582. 
NEW YORK CENTRAL & H.R.R. CO. V. YORK & WHITNEY CO., 256 U.S. 406.  BY
ACCEPTING DELIVERY OF THE COAL, RESPONDENT BECAME BOUND TO PAY THE
TARIFF CHARGES.  AS THE COMMISSION HAS FOUND THEM NOT UNREASONABLE BUT
LAWFUL, RESPONDENT IS WITHOUT RIGHT TO RETAIN THE AMOUNT IT COLLECTED
UPON THE CLAIM THAT THEY WERE EXCESSIVE. 

THE RETENTION BY RESPONDENT OF MONEY COLLECTED UNDER THE FINDINGS AND
ORDER THAT THE COMMISSION LATER SET ASIDE AND VACATED CLEARLY WOULD BE
REPUGNANT TO THE POLICY AND PROVISIONS OF THE ACT. 

2.  THE FACTS ON WHICH THE STATE COURT HELD IT WOULD BE INEQUITABLE
TO REQUIRE RESPONDENT TO REFUND MAY BE BRIEFLY STATED.  RESPONDENT
EMPLOYED AN EXPERT TO REPRESENT IT BEFORE THE COMMISSION AND PROMISED
TO PAY HIM ONE-HALF THE AMOUNT RECOVERED AS REPARATION.  UPON
COLLECTION, IT PROMPTLY PAID AS AGREED.  WHEN PETITIONERS ASKED REFUND,
MORE THAN FIVE YEARS HAD ELAPSED AND SUIT TO RECOVER BACK THE FEE WAS
BARRED BY THE STATUTE OF LIMITATIONS.  RESPONDENT USED THE OTHER HALF
TO PAY DIVIDENDS AND FOR OTHER CORPORATE PURPOSES.  AS ABOVE INDICATED,
THE COURT HELD THE PAYMENT TO BE VOLUNTARY AND RESTED ITS RULING ON
THAT FACT.  BUT AS SHOWN ABOVE IT WAS NOT VOLUNTARY; IT WAS DEMANDED BY
RESPONDENT AND COMPELLED BY THE ACT, FINDINGS, AND REPARATION ORDER. 
MOREOVER, EQUITABLE CONSIDERATIONS MAY NOT SERVE TO JUSTIFY FAILURE OF
CARRIER TO COLLECT, OR RETENTION BY SHIPPER OF, ANY PART OF LAWFUL
TARIFF CHARGES.  PITTSBURGH, C., C. & ST. L. RY. CO. V. FINK, SUPRA.
NEW YORK CENTRAL & H.R.R. CO. V. YORK & WHITNEY CO., SUPRA.  REVERSED. 

FN1  THE APPLICABLE RULE IS V:  REPARATION STATEMENTS - FORMAL CLAIMS
FOR REPARATION BASED UPON FINDINGS OF THE COMMISSION.  SEE RULES OF
PRACTICE BEFORE THE COMMISSION, REVISED TO APRIL 1, 1936. 

FN2  "IF, AFTER HEARING ON A COMPLAINT MADE AS PROVIDED IN SECTION 13
OF THIS CHAPTER, THE COMMISSION SHALL DETERMINE THAT ANY PARTY
COMPLAINANT IS ENTITLED TO AN AWARD OF DAMAGES UNDER THE PROVISIONS OF
THIS CHAPTER FOR A VIOLATION THEREOF, THE COMMISSION SHALL MAKE AN
ORDER DIRECTING THE CARRIER TO PAY TO THE COMPLAINANT THE SUM TO WHICH
HE IS ENTITLED ON OR BEFORE A DAY NAMED."  49 U.S.C. SEC. 16(1). 

FN3  "IF A CARRIER DOES NOT COMPLY WITH AN ORDER FOR THE PAYMENT OF
MONEY WITHIN THE TIME LIMIT IN SUCH ORDER, THE COMPLAINANT, OR ANY
PERSON FOR WHOSE BENEFIT SUCH ORDER WAS MADE, MAY FILE IN THE DISTRICT
COURT OF THE UNITED STATES FOR THE DISTRICT IN WHICH HE RESIDES OR IN
WHICH IS LOCATED THE PRINCIPAL OPERATING OFFICE OF THE CARRIER, OR
THROUGH WHICH THE ROAD OF THE CARRIER RUNS, OR IN ANY STATE COURT OF
GENERAL JURISDICTION HAVING JURISDICTION OF THE PARTIES, A PETITION
SETTING FORTH BRIEFLY THE CAUSES FOR WHICH HE CLAIMS DAMAGES, AND THE
ORDER OF THE COMMISSION IN THE PREMISES.  SUCH SUIT IN THE DISTRICT
COURT OF THE UNITED STATES SHALL PROCEED IN ALL RESPECTS LIKE OTHER
CIVIL SUITS FOR DAMAGES, EXCEPT THAT ON THE TRIAL OF SUCH SUIT THE
FINDINGS AND ORDER OF THE COMMISSION SHALL BE PRIMA FACIE EVIDENCE OF
THE FACTS THEREIN STATED, AND EXCEPT THAT THE PETITIONER SHALL NOT BE
LIABLE FOR COSTS IN THE DISTRICT COURT NOR FOR COSTS AT ANY SUBSEQUENT
STAGE OF THE PROCEEDINGS UNLESS THEY ACCRUE UPON HIS APPEAL.  IF THE
PETITIONER SHALL FINALLY PREVAIL HE SHALL BE ALLOWED A REASONABLE
ATTORNEY'S FEE, TO BE TAXED AND COLLECTED AS A PART OF THE COSTS OF THE
SUIT."  49 U.S.C. SEC. 16(2). 

FN4  "AFTER A DECISION, ORDER, OR REQUIREMENT HAS BEEN MADE BY THE
COMMISSION IN ANY PROCEEDING ANY PARTY THERETO MAY AT ANY TIME MAKE
APPLICATION FOR REHEARING OF THE SAME, OR ANY MATTER DETERMINED
THEREIN, AND IT SHALL BE LAWFUL FOR THE COMMISSION IN ITS DISCRETION TO
GRANT SUCH A REHEARING IF SUFFICIENT REASON THEREFOR BE MADE TO
APPEAR.  APPLICATIONS FOR REHEARING SHALL BE GOVERNED BY SUCH GENERAL
RULES AS THE COMMISSION MAY ESTABLISH.  NO SUCH APPLICATION SHALL
EXCUSE ANY CARRIER FROM COMPLYING WITH OR OBEYING ANY DECISION, ORDER,
OR REQUIREMENT OF THE COMMISSION, OR OPERATE IN ANY MANNER TO STAY OR
POSTPONE THE ENFORCEMENT THEREOF, WITHOUT THE SPECIAL ORDER OF THE
COMMISSION.  IN CASE A REHEARING IS GRANTED THE PROCEEDINGS THEREUPON
SHALL CONFORM AS NEARLY AS MAY BE TO THE PROCEEDINGS IN AN ORIGINAL
HEARING, EXCEPT AS THE COMMISSION MAY OTHERWISE DIRECT; AND IF, IN ITS
JUDGMENT, AFTER SUCH REHEARING AND THE CONSIDERATION OF ALL FACTS,
INCLUDING THOSE ARISING SINCE THE FORMER HEARING, IT SHALL APPEAR THAT
THE ORIGINAL DECISION, ORDER, OR REQUIREMENT IS IN ANY RESPECT UNJUST
OR UNWARRANTED, THE COMMISSION MAY REVERSE, CHANGE, OR MODIFY THE SAME
ACCORDINGLY.  ANY DECISION, ORDER, OR REQUIREMENT MADE AFTER SUCH
REHEARING, REVERSING, CHANGING, OR MODIFYING THE ORIGINAL DETERMINATION
SHALL BE SUBJECT TO THE SAME PROVISIONS AS AN ORIGINAL ORDER."  49
U.S.C. SEC. 16A.    FN5  NINETEENTH ANNUAL REPORT OF THE INTERSTATE
COMMERCE COMMISSION, P. 12. 
..END :




















AMERICAN BRIDGE CO. V. COMM'N, 307 U.S. 486 


NO. 704.  ARGUED APRIL 21, 1939.  - DECIDED JUNE 5, 1939.  - 12 CAL.2D
184 - 83 P.2D 1, AFFIRMED. 


1.  PROVISIONS OF THE CALIFORNIA POLITICAL CODE REQUIRING COUNTY
SUPERVISORS WHEN GRANTING A TOLL BRIDGE FRANCHISE TO FIX TOLLS WHICH
MUST NOT RAISE ANNUALLY AN INCOME EXCEEDING 15 PER CENT. OF A SPECIFIED
BASE, AND PROVIDING THAT TOLLS SHALL NOT BE INCREASED OR DIMINISHED
UNLESS IT BE SHOWN THAT THE RECEIPTS FROM THEM IN ANY ONE YEAR ARE
"DISPROPORTIONATE" TO THE BASE, CAN NOT BE CONSTRUED TO MEAN THAT TOLLS
SHALL NOT BE REDUCED UNLESS THEY YIELD IN EXCESS OF THE 15 PER CENT.
P. 488. 

2.  A TOLL BRIDGE COMPANY WAS NOTIFIED THAT AN INVESTIGATION OF THE
OPERATION OF ITS BRIDGE WOULD EXTEND TO THE TOLLS.  IT WAS ACCORDED AND
ACCEPTED OPPORTUNITY TO INTRODUCE EVIDENCE, AND SUBMITTED ITS CASE FOR
DECISION WITHOUT REQUEST FOR FINDINGS OR ARGUMENT.  THE STATE
COMMISSION, IN REDUCING TOLLS, FILED A DECISION SUFFICIENTLY INDICATING
THE FACTS ON WHICH IT MADE THE ORDER.  IN ITS PETITIONS FOR REHEARING
AND FOR JUDICIAL REVIEW THE COMPANY, THOUGH SETTING FORTH OTHER
OBJECTIONS SPECIFICALLY, DID NOT CLAIM THAT PROCEDURAL DUE PROCESS HAD
BEEN DENIED BY THE COMMISSION.  HELD, THAT THERE IS NO BASIS FOR
ASSERTING THE CLAIM IN THIS COURT.  MORGAN V. UNITED STATES, 304 U.S.
1, IS NOT IN POINT.  P. 492. 

3.  A COMPANY OWNING TWO BRIDGES OBJECTED TO REGULATION OF THE TOLLS
ON ONE WITHOUT INCLUDING THE OTHER, CLAIMING THAT THEY WERE PARTS OF
THE SAME SYSTEM BUT COMPETING, AND THAT REDUCTION OF TOLLS ON THE ONE
WOULD FORCE REDUCTION ON THE OTHER.  HELD: 

(1)  THAT DETERMINATION OF THE PROPER UNIT WAS IN THE FIRST INSTANCE
FOR THE RATE-FIXING COMMISSION.  P. 494. 

(2)  AS THE OTHER BRIDGE IS NOT USED OR USEFUL IN RENDERING ANY OF
THE SERVICE COVERED BY THE TOLLS UNDER INVESTIGATION, AND THE DUTY TO
OPERATE THE ONE IS INDEPENDENT OF THE DUTY TO OPERATE THE OTHER, THE
CLAIM THAT THE COMMISSION IN CONFINING ITS REGULATION TO THE ONE BRIDGE
ABUSED ITS DISCRETION AND DENIED PROCEDURAL DUE PROCESS, IS WITHOUT
FOUNDATION.  P. 494. 

4.  WHERE AN ORDER REDUCING BRIDGE TOLLS EXTENDED ONLY TO AUTOMOBILES
AND PASSENGERS, LEAVING INTACT THE TOLLS FOR OTHER CLASSES OF TRAFFIC,
A CLAIM THAT THE REDUCTION WAS CONFISCATORY WAS NOT ESTABLISHED BY
PROOF THAT THE REVENUES AS A WHOLE FROM ALL OF THE TRAFFIC WERE
INADEQUATE; THERE MUST BE ALLOCATION OR APPORTIONMENT, TO THE TRAFFIC
COVERED BY THE REDUCED TOLLS, OF OPERATING EXPENSES, COST OF
DEPRECIATION, TAXES, SINKING FUND CONTRIBUTIONS, PROPERTY VALUES, ETC.,
FAIRLY ATTRIBUTABLE TO THE SERVICE COVERED BY THE ORDER.  P. 494. 

AMERICAN TOLL BRIDGE CO. V. RAILROAD COMMISSION OF CALIFORNIA ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF CALIFORNIA UPHOLDING
AN ORDER OF THE STATE RAILROAD COMMISSION WHICH REDUCED IN PART THE
TOLLS CHARGED FOR USE OF ONE OF THE APPELLANT'S BRIDGES. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL IS FROM A JUDGMENT OF THE HIGHEST COURT OF THE STATE
UPHOLDING AN ORDER OF THE STATE RAILROAD COMMISSION THAT REDUCES TOLLS
FOR USE OF APPELLANT'S BRIDGE ACROSS THE CARQUINEZ STRAITS BETWEEN THE
COUNTIES OF CONTRA COSTA AND SOLANO.  APPELLANT CONTENDS THAT THE ORDER
VIOLATES ART. I, SEC. 10, OF THE CONSTITUTION; THAT THE COMMISSION'S
PROCEDURE WAS REPUGNANT TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, AND THAT THE ORDER, IN VIOLATION OF THAT CLAUSE, PRESCRIBES
RATES THAT ARE CONFISCATORY. 

FEBRUARY 5, 1923, THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY,
EXERTING POWER CONFERRED BY STATE LEGISLATION,  FN1  PASSED ORDINANCE
NO. 171 GRANTING TO THE RODEO-VALLEJO FERRY COMPANY A FRANCHISE TO
CONSTRUCT AND FOR 25 YEARS TO OPERATE THE CARQUINEZ BRIDGE.  JUNE 4,
1923, THE SAME BOARD GRANTED TO THE DELTA BRIDGE CORPORATION A LIKE
FRANCHISE FOR THE CONSTRUCTION AND OPERATION OF A BRIDGE ACROSS THE SAN
JOAQUIN RIVER NEAR ANTIOCH, BETWEEN THE COUNTIES OF CONTRA COSTA AND
SACRAMENTO.  EACH ORDINANCE PROVIDES THAT, ON THE EXPIRATION OF THE
FRANCHISE, THE PROPERTY RIGHTS, INCLUDING TITLE TO THE BRIDGE, REVERT
TO THE ADJACENT COUNTIES.  APPELLANT BECAME THE OWNER OF BOTH
FRANCHISES.  THE ANTIOCH BRIDGE WAS OPENED IN JANUARY, 1926, AND THE
CARQUINEZ IN MAY, 1927. 

WHEN THE CARQUINEZ BRIDGE OPENED, THE BOARD OF SUPERVISORS FIXED
TOLLS AT 60 CENTS FOR AUTOMOBILES AND AT 10 CENTS FOR EACH PERSON IN A
VEHICLE OR ON FOOT.  FN2  THAT SCALE WAS IN OPERATION WHEN THE
COMMISSION MADE THE ORDER IN QUESTION WHICH REDUCED THESE CHARGES TO 45
AND 5 CENTS, RESPECTIVELY.  JURISDICTION OVER TOLL BRIDGES HAVING BEEN
CONFERRED UPON IT BY A STATUTE OF 1937,  FN3  THE COMMISSION IN AUGUST
OF THAT YEAR ON ITS OWN MOTION COMMENCED AN INVESTIGATION OF ALL TOLL
BRIDGES.  BUT, IN OCTOBER FOLLOWING, IT COMMENCED A SEPARATE PROCEEDING
SOLELY TO INVESTIGATE REASONABLENESS OF CARQUINEZ TOLLS.  FEBRUARY 8,
1938, IT ANNOUNCED ITS OPINION AND PROMULGATED THE ORDER IN QUESTION. 
APPELLANT OBTAINED JUDICIAL REVIEW; THE COURT UPHELD THE ORDER.  12
CAL.2D 184. 

THE STATUTORY PROVISIONS AUTHORIZING THE COUNTY BOARD TO GRANT THE
FRANCHISES, ORDINANCE NO. 171, AND THE GRANTEES' ACCEPTANCE CONSTITUTE
A CONTRACT BETWEEN THE PARTIES.  CONTRA COSTA CO. V. AMERICAN TOLL
BRIDGE CO., (1937) 10 CAL.2D 359; 74 P.2D 749.  AS TO THAT, THERE IS NO
CONTROVERSY.  BUT APPELLANT CONTENDS THAT UNDER THE FRANCHISE IT HAS A
CONTRACT RIGHT THAT THE BRIDGE TOLLS SHALL NOT BE REDUCED BY THE PUBLIC
AUTHORITIES UNLESS IT SHALL FIRST APPEAR THAT THEY ARE YIELDING A RATE
IN EXCESS OF 15 PER CENT UPON THE RATE BASE SPECIFIED BY SECS. 2845 AND
2846, POLITICAL CODE. 

THESE SECTIONS PROVIDE: 

SEC. 2845.  "THE BOARD OF SUPERVISORS GRANTING AUTHORITY TO CONSTRUCT
A TOLL-BRIDGE  ...  MUST AT THE SAME TIME:  ... 

"2.  FIX THE AMOUNT OF LICENSE TAX TO BE PAID BY THE PERSON OR
CORPORATION FOR TAKING TOLLS THEREON, NOT LESS THAN THREE DOLLARS NOR
OVER ONE HUNDRED DOLLARS PER MONTH, PAYABLE ANNUALLY. 

"3.  FIX THE RATE OF TOLLS WHICH MAY BE COLLECTED FOR CROSSING THE
BRIDGE  ...  WHICH MUST NOT RAISE ANNUALLY AN INCOME EXCEEDING FIFTEEN
PER CENT ON THE ACTUAL COST OF THE CONSTRUCTION OR ERECTION AND
MAINTENANCE OF THE BRIDGE  ...  FOR THE FIRST YEAR, NOR ON THE FAIR
CASH VALUE TOGETHER WITH THE REPAIRS AND MAINTENANCE THEREOF FOR ANY
SUCCEEDING YEAR; ..."  FN4 

SEC. 2846.  "THE LICENSE TAX AND RATE OF TOLL FIXED AS PROVIDED IN
THE PRECEDING SECTION MUST NOT BE INCREASED OR DIMINISHED DURING THE
TERM OF TWENTY YEARS, AT ANY TIME, UNLESS IT IS SHOWN TO THE
SATISFACTION OF THE BOARD OF SUPERVISORS THAT THE RECEIPTS FROM TOLLS
IN ANY ONE YEAR IS DISPROPORTIONATE TO THE COST OF CONSTRUCTION OR
ERECTION, OR THE FAIR CASH VALUE THEREOF, TOGETHER WITH THE COST OF ALL
NECESSARY REPAIRS AND MAINTENANCE OF THE BRIDGE.  ...  THE LICENSE TAX
FIXED BY THE BOARD OF SUPERVISORS MUST NOT EXCEED TEN PER CENT OF THE
TOLLS ANNUALLY COLLECTED." 

THE STATE COURT HELD THAT SEC. 2846 CONTEMPLATES INCREASES AS WELL AS
REDUCTIONS, LIMITED BY THE 15 PER CENT MAXIMUM, AT ANY TIME THE
DISPROPORTION IS SHOWN TO EXIST.  IT CONSTRUED THE LANGUAGE OF THAT
SHALL HAVE A 15 PER CENT RETURN, IF YIELDED BY THE TOLLS SPECIFIED IN
THE FRANCHISE.  THE OPINION EXPLAINS THAT: "RATHER IS IT TO BE ASSUMED
THAT THE LEGISLATURE INTENDED, NOT ONLY TO AFFORD AN ADEQUATE AND
PROPORTIONATE RETURN TO THE GRANTEE, BUT THAT IT ALSO INTENDED SOME
MEASURE OF PROTECTION TO THE PUBLIC'S RIGHT TO BE CHARGED NOT MORE THAN
A REASONABLE TOLL FOR THE USE OF THE BRIDGE.  ...  IN 1872, WHEN
ALLOWED BETWEEN BOTH INTERESTS, PUBLIC AND PRIVATE, TO PERMIT ADEQUATE
ELASTICITY IN THE EXERCISE OF THE LEGISLATIVE RATE-MAKING FUNCTION IN
THE LIGHT OF PREVAILING ECONOMIC CONDITIONS.  SUCH A STATUTE DOES NOT
SAVOR OF A CONTRACT OBLIGATION TO THE GRANTEE.  ITS OBJECT WAS TO
DELEGATE TO AND VEST IN THE DESIGNATED BODY THE POWER TO REGULATE TOLLS
AS CIRCUMSCRIBED BY THE STATED LIMITATION."  12 CAL.2D 195; 83 P.2D 6. 

UPON THE ISSUE WHETHER THE ORDER IS REPUGNANT TO THE CONTRACT CLAUSE,
"NO STATE SHALL  ...  PASS ANY  ...  LAW IMPAIRING THE OBLIGATION OF
CONTRACTS," THIS COURT, WHILE INCLINING TO THE STATE COURT'S
CONSTRUCTION, WILL DECIDE FOR ITSELF WHETHER, AS CLAIMED BY APPELLANT,
THE FRANCHISE BY CONTRACT LIMITS EXERTION OF SOVEREIGN POWERS TO
REGULATE TOLLS.  GEORGIA RY. CO. V. DECATUR, 262 U.S. 432, 438.  NEW
YORK RAPID TRANSIT CORP. V. NEW YORK, 303 U.S. 573, 593.  AND, IF IT
PLAINLY APPEARS THAT IT DOES, THIS COURT WILL NOT HESITATE SO TO
ADJUDGE.  DETROIT UNITED RY. V. MICHIGAN, 242 U.S. 238, 251-253. 
CLEVELAND V. CLEVELAND CITY RY. CO., 194 U.S. 517, 524, 536.  DETROIT
V. DETROIT CITIZENS STREET RY. CO., 184 U.S. 368, 382, 389.  ST. CLOUD
PUBLIC SERVICE CO. V. ST. CLOUD, 265 U.S. 352.  COMPARE GEORGIA V.
CHATTANOOGA, 264 U.S. 472, 480. 

UPON AN ELABORATE REVIEW OF THE CALIFORNIA LEGISLATION RELATING TO
BRIDGE TOLLS, APPELLANT SAYS THAT IN THE FIRST PERIOD, 1850 TO 1857,
BRIDGE FRANCHISES ALLOWED OWNERS TO TAKE ONLY SUCH TOLLS AS THE COURTS
OF SESSIONS AND, LATER, THE COUNTY BOARDS SHOULD FIX ANNUALLY; THAT IN
THE SECOND PERIOD, 1857 TO 1864, TOLLS WERE LIMITED TO THOSE FIXED BY
COUNTY BOARDS ANNUALLY, SUBJECT TO CHANGE BY THE LEGISLATURE; THAT IN
THE THIRD PERIOD, 1862 TO 1872, GENERAL STATUTES AND SPECIAL ACTS
AUTHORIZED SUCH RATES AS THE COUNTY BOARDS SHOULD ANNUALLY PRESCRIBE,
DECLARING, HOWEVER, THAT THEY SHOULD NOT BE SO LOW AS TO MAKE INCOME
LESS THAN A SPECIFIED PERCENTAGE OF A DEFINED BASE.  ON THAT
FOUNDATION, IT MAINTAINS THAT THERE WAS AN EVOLUTION OF POLICY TO GRANT
TO BUILDERS AND OPERATORS OF BRIDGES CONTRACT RIGHTS AS TO TOLLS.  IN
THAT LIGHT IT EXAMINES THE LANGUAGE OF SECS. 2845 AND 2846 AND
CONCLUDES THAT THE PROPER CONSTRUCTION OF THE FRANCHISE IN QUESTION IS
THAT UNLESS THE YIELD BECOMES IN EXCESS OF 15 PER CENT THE LICENSE TAX
MUST NOT BE INCREASED AND THE RATE OF TOLL MUST NOT BE DIMINISHED. 

WE ASSUME, WITHOUT DETAILED EXAMINATION, THAT THE LEGISLATION SO
PORTRAYED INDICATES THAT IN THE PERIOD NEXT PRECEDING 1872, WHEN THE
PROVISIONS OF SEC. 2846 WERE ENACTED, THE STATE HAD ADOPTED THE POLICY
OF SAFEGUARDING OPERATORS OF TOLL BRIDGES AGAINST RATE REDUCTION BY
COUNTY BOARDS BELOW SPECIFIED LEVELS.  BUT THAT FACT MAY NOT BE
EMPLOYED TO ARRIVE AT A CONSTRUCTION NOT INDICATED BY THE LANGUAGE
USED.  SO FAR AS CONCERNS THE POINT UNDER CONSIDERATION, THE MEANING OF
THE STATUTORY PROVISION IS PLAIN.  SECTION 2845 REQUIRES THE COUNTY
BOARD, WHEN GRANTING THE FRANCHISE, TO FIX THE LICENSE TAX WITHIN
SPECIFIED LIMITS AND A RATE OF TOLL, WHICH MUST NOT RAISE ANNUALLY AN
INCOME EXCEEDING 15 PER CENT OF BASE.  SECTION 2846 DECLARES THAT THE
LICENSE TAX AND THE RATE OF TOLL SO FIXED MUST NOT BE DIMINISHED UNLESS
RECEIPTS ARE DISPROPORTIONATE TO BASE.  THUS PLAINLY THE COMMANDS ARE
THAT AT FIRST THE TOLLS MUST BE FIXED, BUT NOT TO PRODUCE INCOME ABOVE
THE 15 PER CENT SPECIFIED, AND THAT THE TOLLS SO FIXED SHALL NOT BE
DIMINISHED UNLESS YIELD IS DISPROPORTIONATE TO THE DEFINED BASE. 
NEITHER IN TEXT NOR IN REASON IS THE "FIFTEEN PER CENT" PRESCRIBED AS
MAXIMUM YIELD TIED TO, OR MADE THE TEST BY WHICH TO ASCERTAIN WHETHER
RECEIPTS FROM TOLLS ARE, "DISPROPORTIONATE."  WE CONSTRUE THESE
STATUTORY PROVISIONS TO NEGATIVE APPELLANT'S CLAIM THAT BY THE
FRANCHISE IN QUESTION THE STATE BARGAINED AWAY POWER TO REDUCE TOLLS
FOR USE OF THE CARQUINEZ BRIDGE UNLESS ANNUAL RETURN BECOMES MORE THAN
15 PER CENT.  SEE E.G. PADUCAH V. PADUCAH RY. CO., 261 U.S. 267, 275;
BANTON V. BELT LINE RY. CORP., 268 U.S. 413, 417-419; RAILROAD
COMMISSION V. LOS ANGELES RY. CORP., 280 U.S. 145, 152, 155.  THE ORDER
IS NOT REPUGNANT TO THE CONTRACT CLAUSE. 

APPELLANT CLAIMS THAT, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT, THE COMMISSION DENIED IT A FULL AND FAIR HEARING
AND FAILED ADEQUATELY TO FIND THE FACTS.  THE COMMISSION INITIATED THE
PROCEEDING, ENTITLED "IN THE MATTER OF THE INVESTIGATION UPON THE
COMMISSION'S OWN MOTION, INTO THE RATES, CHARGES, CONTRACTS,
CLASSIFICATIONS, RULES AND REGULATIONS OF AMERICAN TOLL BRIDGE COMPANY
COVERING ITS OPERATION OF THE TOLL BRIDGE OVER THE CARQUINEZ STRAITS
BETWEEN THE COUNTIES OF CONTRA COSTA AND SOLANO"; GAVE APPELLANT NOTICE
THAT THE INVESTIGATION WOULD EXTEND TO TOLLS FOR USE OF THAT BRIDGE;
ACCORDED IT OPPORTUNITY TO INTRODUCE EVIDENCE AND PRESENT ITS
CONTENTIONS; AND RECEIVED THE EVIDENCE OFFERED BY IT, 233 PAGES OF THE
PRINTED RECORD AND NUMEROUS EXHIBITS.  APPELLANT SUBMITTED THE CASE FOR
DECISION WITHOUT MAKING ANY REQUEST FOR FINDINGS AND WITHOUT ARGUMENT,
ORAL OR WRITTEN.  THE COMMISSION, WITHOUT FORMAL FINDINGS, FILED ITS
DECISION WHICH, SUFFICIENTLY TO MEET REQUIREMENTS OF DUE PROCESS,
INDICATES THE FACTS ON WHICH IT MADE THE ORDER. 

THEN APPELLANT FILED PETITION FOR REHEARING.  THAT DOCUMENT,
INCLUDING EIGHT CAPTIONS AND 12 SUB-CAPTIONS AND AN EXHIBIT, OCCUPIES
39 PRINTED PAGES OF THE RECORD.  FN5  IT SPECIFICALLY SETS FORTH THE
GROUNDS ON WHICH APPELLANT CLAIMED THE DECISION TO BE UNLAWFUL.  THESE
INCLUDE THE COMMISSION'S DETERMINATION OF THE VARIOUS CLASSES OF FACTS
USUALLY CONSIDERED IN CASES IN WHICH PRESCRIBED RATES ARE CHALLENGED AS
CONFISCATORY.  THE PETITION CONTAINS NO HINT OF CLAIM THAT THE
COMMISSION DENIED APPELLANT PROCEDURAL DUE PROCESS.  NOR WAS THAT
SPECIFIED IN THE PETITION FOR JUDICIAL REVIEW.  MORGAN V. UNITED
STATES, 304 U.S. 1, ON WHICH APPELLANT RELIES, WAS DECIDED AFTER FILING
OF THAT PETITION AND BEFORE ARGUMENT IN THE CALIFORNIA COURT.  THAT
COURT RIGHTLY HELD IT NOT IN POINT. 

APPELLANT ALSO CLAIMS THAT THE COMMISSION DENIED IT PROCEDURAL DUE
PROCESS BY EXCLUDING THE ANTIOCH BRIDGE RATES FROM THE PROCEEDING.  IT
MOVED TO INCLUDE WITH THIS PROCEEDING AN INVESTIGATION OF THE ANTIOCH
BRIDGE TOLLS.  IN SUPPORT OF THE MOTION, IT SUGGESTED THAT THE BRIDGES
ARE PART OF A SINGLE SYSTEM BUT COMPETE WITH EACH OTHER; THAT
OPERATIONS OF THE ANTIOCH ARE LESS SATISFACTORY FINANCIALLY THAN THOSE
OF THE CARQUINEZ; AND THAT REDUCTION OF CARQUINEZ TOLLS WOULD FORCE
REDUCTION OF ANTIOCH TOLLS. 

IN THE FIRST INSTANCE, AT LEAST, DETERMINATION OF THE PROPER UNIT FOR
RATE MAKING WAS FOR THE COMMISSION.  THE ANTIOCH BRIDGE IS NOT USED OR
USEFUL TO RENDER ANY SERVICE COVERED BY THE CARQUINEZ TOLLS;
APPELLANT'S DUTY TO OPERATE EITHER BRIDGE IS INDEPENDENT OF ITS
OBLIGATION TO OPERATE THE OTHER.  THE RECORD DISCLOSES NO BASIS ON
WHICH IT REASONABLY MAY BE HELD THAT BY LIMITING THE INVESTIGATION TO
THE CARQUINEZ TOLLS THE COMMISSION ABUSED ITS DISCRETION, AND CLEARLY
THERE IS NO FOUNDATION FOR THE CLAIM THAT IN EXCLUDING THE ANTIOCH THE
COMMISSION DENIED APPELLANT PROCEDURAL DUE PROCESS.  SEE GILCHRIST V.
INTERBOROUGH CO., 279 U.S. 159, 206, 209.  WABASH VALLEY ELECTRIC CO.
V. YOUNG, 287 U.S. 488, 495-8.  FLORIDA POWER & LIGHT CO. V. MIAMI, 98
F.2D 180.  INTERNATIONAL RY. CO. V. PRENDERGAST, 1 F.SUPP.  623.  CF.
CONEY V. BROAD RIVER POWER CO., 171 S.C. 377; 172 S.E. 437. 

THERE IS NO FOUNDATION FOR THE CLAIM THAT THE COMMISSION'S PROCEDURE
VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

THERE REMAINS FOR CONSIDERATION THE CONTENTION THAT THE PRESCRIBED
RATES ARE CONFISCATORY.  THE BURDEN IS ON APPELLANT TO SHOW THAT
ENFORCEMENT OF THE ORDER WILL COMPEL IT TO FURNISH THE SERVICE COVERED
BY THE REDUCED RATES FOR LESS THAN A REASONABLE RATE OF RETURN ON THE
VALUE OF THE PROPERTY USED, AT THE TIME IT IS BEING USED, FOR THAT
SERVICE.  AND, IN THE ABSENCE OF CLEAR AND CONVINCING PROOF THAT THE
REDUCED TOLLS ARE TOO LOW TO YIELD THAT RETURN, IT MAY NOT BE ADJUDGED
THAT THE STATE BY ENFORCEMENT OF THE MEASURE COMPLAINED OF WILL DEPRIVE
APPELLANT OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW.  CHICAGO & G.T.
RY. CO. V. WELLMAN, 143 U.S. 339, 344-345.  SAN DIEGO LAND & TOWN CO.
V. JASPER, 189 U.S. 439, 441, 446.  KNOXVILLE V. KNOXVILLE WATER CO.,
212 U.S. 1, 8, 16.  THE MINNESOTA RATE CASES, 230 U.S. 352, 433, 452. 
BRUSH ELECTRIC CO. V. GALVESTON, 262 U.S. 443, 446.  AETNA INSURANCE
CO. V. HYDE, 275 U.S. 440, 448.    THE TERMS OF THE ORDER MUST FIRST BE
GIVEN ATTENTION.  IT DIRECTS APPELLANT TO CHANGE THE ITEMS OF ITS
SCHEDULE OF CHARGES, READING AS FOLLOWS:  "PASSENGERS (7 YEARS OF AGE
AND OLDER) ON FOOT OR IN VEHICLES  ...  $.10.  AUTO ONLY  ...  .60" SO
AS TO READ:  "PASSENGERS (7 YEARS OF AGE AND OLDER) ON FOOT OR IN
VEHICLES  ...  .05.  AUTO ONLY  ...  .45."  THUS, THE ORDER EXTENDS
ONLY TO AUTOMOBILES AND PASSENGERS.  THE CARQUINEZ FRANCHISE SPECIFIES,
UNTIL OTHERWISE ORDERED BY THE COMMISSION, TOLLS APPLICABLE TO OTHER
CLASSES OF TRAFFIC CROSSING THE BRIDGE, NAMELY, BICYCLES, CARTS AND
WAGONS, COMMERCIAL OR DELIVERY AUTOMOBILES AND MOTOR TRUCKS, DITCHERS,
HARVESTERS, ETC., CATTLE AND STOCK, MOTOR STAGES TO WHICH COMMUTATION
RATES ARE APPLIED WHEN OPERATED AS SPECIFIED, FREIGHT, HEARSES, HORSES,
MOTORCYCLES, AND TRAILERS. 

APPELLANT FAILS TO ESTABLISH, BY ALLOCATION OR APPORTIONMENT TO THE
TRAFFIC COVERED BY THE TOLLS SO REDUCED, THE OPERATING EXPENSES, COST
OF DEPRECIATION, TAXES, AND CONTRIBUTIONS TO THE SINKING FUND FOR
AMORTIZATION OF INVESTMENT THAT ARE FAIRLY ATTRIBUTABLE TO THE SERVICE
COVERED BY THE ORDER; IT ALSO FAILS TO ESTABLISH THE AMOUNT OF PROPERTY
VALUE THAT IS JUSTLY ASSIGNABLE TO THAT TRAFFIC.  OBVIOUSLY, THE RETURN
TO BE YIELDED BY THE REDUCED TOLLS CANNOT BE FOUND WITHOUT COMPARISON
OF THE REVENUES TO BE DERIVED FROM THE SERVICE WITH THE AMOUNTS OF
OPERATING EXPENSES AND OTHER CHARGES RIGHTLY TO BE MADE AGAINST THEM. 
INADEQUACY OF REVENUES FROM ALL TRAFFIC DOES NOT TEND TO SHOW THAT THE
RATES ON AUTOMOBILES AND PERSONS PRESCRIBED BY THE COMMISSION'S ORDER
ARE TOO LOW.  THE MINNESOTA RATE CASES, SUPRA, 452-453.  BALTIMORE &
OHIO R. CO. V. UNITED STATES, 298 U.S. 349, 372, 378, 381.  IT FOLLOWS
THAT APPELLANT IS NOT ENTITLED TO A DECREE THAT THE ORDER IS
CONFISCATORY. 

MORE NEED NOT BE WRITTEN TO DISPOSE OF THE ISSUES PRESENTED IN THIS
CASE.  BUT IN VIEW OF APPELLANT'S EARNEST CONTENTIONS, IT IS NOT
INAPPROPRIATE TO SAY THAT THE RECORD, CONSIDERED IN THE LIGHT OF ITS
ARGUMENT, FAILS TO SHOW THAT THE RATE REDUCTION WILL SO LESSEN REVENUES
FROM THE CARQUINEZ BRIDGE THAT THERE WILL REMAIN LESS THAN SUFFICIENT,
UNDER THE DUE PROCESS CLAUSE, TO CONSTITUTE JUST COMPENSATION FOR ITS
USE - A REASONABLE RATE OF RETURN ON THE VALUE OF THE BRIDGE PROPERTY. 
JUDGMENT AFFIRMED. 

FN1  POLITICAL CODE, SECS. 2843, 2845, 2846, AND 2872(AS AMENDED MAY
8, 1923, CAL. STATS. 1923, P. 272). 

FN2  THE FRANCHISE ORDINANCE FIXED THESE TOLLS AT 75 CENTS AND 15
CENTS. 

FN3  ACT OF AUGUST 27, 1937, CAL. STATS. 1937, P. 2473. 

FN4  BY ACT OF MAY 9, 1923, PAR. 3 WAS AMENDED TO READ AS FOLLOWS:
"FIX THE RATE OF TOLLS WHICH MAY BE COLLECTED FOR CROSSING THE BRIDGE
...  WHICH MAY RAISE ANNUALLY AN INCOME NOT EXCEEDING FIFTEEN PER CENT
ON THE ACTUAL COST OF THE CONSTRUCTION OR ERECTION OF THE BRIDGE  ...
AND SUCH ADDITIONAL INCOME AS WILL PROVIDE FOR THE ANNUAL COST OF
OPERATION, MAINTENANCE, AMORTIZATION AND TAXES OF THE BRIDGE.  ...  "
CAL. STATS. 1923, P. 288. 

FN5  I. INTRODUCTION. 

II.  EXCLUSION OF ANTIOCH BRIDGE. 

1.  THE FACTS. 

2.  INEVITABLE EFFECT OF DECISION ON TOLLS OF CARQUINEZ BRIDGE,
ANTIOCH BRIDGE AND MARTINEZ-BENICIO FERRY. 

3.  THE DECISION IS CONTRARY TO THE COMMISSION'S OWN TRADITIONS AND
POLICY. 

4.  THE COMMISSION'S ACTION DEPRIVES AMERICAN TOLL BRIDGE COMPANY OF
ITS PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF GUARANTEES OF
THE FEDERAL AND THE STATE CONSTITUTIONS. 

III.  FAILURE TO GIVE FAIR RETURN ON FAIR VALUE OF CARQUINEZ BRIDGE. 

1.  CALCULATIONS OF COMMISSION IN COMPUTING ITS RATE. 

2.  ERRORS IN COMMISSION'S COMPUTATIONS. 

(1)  RATE BASE. 

(2)  MONEY AVAILABLE FOR RETURN ON RATE BASE (UNDER 50[ TOLL). 

3.  RETURN UNDER RATE FIXED BY COMMISSION. 

4.  IN VIEW OF THE COST OF MONEY TO AMERICAN TOLL BRIDGE COMPANY, A
RETURN OF ONLY 6.6% OR 6.9% ON THE FAIR VALUE OF THE CARQUINEZ BRIDGE
WOULD BE CONFISCATORY. 

5.  SUMMARY AS TO FAIR RETURN, CARQUINEZ BRIDGE. 

IV.  FAILURE TO GIVE FAIR RETURN ON FAIR VALUE OF CARQUINEZ AND
ANTIOCH BRIDGES. 

1.  RATE BASE. 

2.  RETURN UNDER RATE FIXED BY COMMISSION. 

3.  EFFECT OF COMMISSION'S DECISION WOULD BE TO CONFISCATE PROPERTY
OF AMERICAN TOLL BRIDGE COMPANY IN BOTH CARQUINEZ AND ANTIOCH BRIDGES. 

V. UNDER COMMISSION'S TOLLS AMERICAN TOLL BRIDGE COMPANY WOULD BE
UNABLE TO MEET ITS REQUIREMENTS TO ITS BONDHOLDERS AND STOCKHOLDERS. 

VI.  IMPAIRMENT OF CONTRACT OBLIGATIONS. 

VII.  FALSE ANALOGY WITH PUBLICLY OWNED AND OPERATED SAN FRANCISCO
BAY BRIDGES. 

VIII.  VIOLATION OF CONSTITUTIONAL AND STATUTORY RIGHTS. 

MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER AND MR. JUSTICE DOUGLAS
CONCUR IN THE RESULT. 
..END :
















HAGUE V. C.I.O., 307 U.S. 496 


NO. 651.  ARGUED FEBRUARY 27, 28, 1939.  - DECIDED JUNE 5, 1939.  - 101
F.2D 774, MODIFIED AND AFFIRMED. 


IN A SUIT TO ENJOIN MUNICIPAL OFFICERS FROM ENFORCING ORDINANCES
FORBIDDING THE DISTRIBUTION OF PRINTED MATTER, AND THE HOLDING WITHOUT
PERMITS OF PUBLIC MEETINGS, IN STREETS AND OTHER PUBLIC PLACES, HELD: 

1.  THE CASE IS WITHIN THE JURISDICTION OF THE DISTRICT COURT.  PP.
512-513, 525. 

2.  THE ORDINANCES AND THEIR ENFORCEMENT VIOLATE THE RIGHTS UNDER THE
CONSTITUTION OF THE INDIVIDUAL PLAINTIFFS, CITIZENS OF THE UNITED
STATES; BUT A COMPLAINING CORPORATION CAN NOT CLAIM SUCH RIGHTS.  P.
514. 

3.  THE ORDINANCES ARE VOID.  PP. 516, 518. 

4.  PROVISIONS OF THE DECREE ENJOINING FORCIBLE REMOVAL OF PLAINTIFFS
OR EXERCISE OF PERSONAL RESTRAINT OVER THEM WITHOUT WARRANT, OR
CONFINEMENT WITHOUT LAWFUL ARREST AND PRODUCTION FOR PROMPT JUDICIAL
HEARING, SAVING LAWFUL SEARCH AND SEIZURE, OR INTERFERENCE WITH THEIR
FREE ACCESS TO STREETS, PARKS OR PUBLIC PLACES OF THE CITY,  - ARE NOT
VAGUE AND IMPRACTICABLE.  P. 517. 

5.  THE DECREE PROPERLY ENJOINED INTERFERENCE WITH THE RIGHT OF
PLAINTIFFS, THEIR AGENTS ETC., TO COMMUNICATE THEIR VIEWS AS
INDIVIDUALS TO OTHERS ON THE STREETS IN AN ORDERLY AND PEACEABLE
MANNER, RESERVING THE RIGHT OF DEFENDANTS TO ENFORCE LAW AND ORDER BY
LAWFUL SEARCH AND SEIZURE OR ARREST.  P. 517. 

6.  IN SO FAR AS THE DECREE RELATES TO DISTRIBUTION OF LITERATURE AND
HOLDING OF MEETINGS, THE DECREE SHOULD ENJOIN ENFORCEMENT OF THE VOID
ORDINANCES, AND NOT UNDERTAKE TO ENUMERATE THE CONDITIONS UNDER WHICH
THOSE ACTIVITIES MAY BE CARRIED ON.  P. 518. 

PER ROBERTS, J., WITH WHOM BLACK, J., CONCURRED.  THE CHIEF JUSTICE
CONCURRED IN PART (P. 532). 

1.  THE DISTRICT COURT LACKED JURISDICTION UNDER JUD.  CODE SEC.
24(1).  P. 508. 

(A) IN SUITS UNDER SEC. 24(1) A TRAVERSE OF THE ALLEGATION AS TO THE
AMOUNT IN CONTROVERSY, OR A MOTION TO DISMISS BASED UPON THE ABSENCE OF
SUCH AMOUNT, CALLS FOR SUBSTANTIAL PROOF ON THE PART OF THE PLAINTIFF
OF FACTS JUSTIFYING THE CONCLUSION THAT THE SUIT INVOLVES THE NECESSARY
SUM.  P. 507. 

(B)  THE RECORD IN THIS SUIT IS BARE OF ANY SHOWING OF THE VALUE OF
THE ASSERTED RIGHTS TO THE COMPLAINANTS INDIVIDUALLY.  P. 508. 

(C)  COMPLAINANTS MAY NOT AGGREGATE THEIR INTERESTS IN ORDER TO
ATTAIN THE REQUISITE JURISDICTIONAL AMOUNT.  P. 508. 

2.  THE DISTRICT COURT HAD JURISDICTION UNDER JUD.  CODE, SEC.
24(14).  P. 513. 

(A)  FREEDOM TO DISSEMINATE INFORMATION CONCERNING THE PROVISIONS OF
THE NATIONAL LABOR RELATIONS ACT, TO ASSEMBLE PEACEABLY FOR DISCUSSION
OF THE ACT AND OF THE OPPORTUNITIES AND ADVANTAGES OFFERED BY IT, IS A
PRIVILEGE OR IMMUNITY OF A CITIZEN OF THE UNITED STATES SECURED AGAINST
STATE ABRIDGMENT BY SEC. 1 OF THE FOURTEENTH AMENDMENT; AND R.S. SEC.
1979 AND JUD.  CODE SEC. 24(14) AFFORD REDRESS IN A FEDERAL COURT FOR
SUCH ABRIDGMENT.  P. 512. 

(B)  NATURAL PERSONS ALONE ARE ENTITLED TO THE PRIVILEGES AND
IMMUNITIES WHICH SEC. 1 OF THE FOURTEENTH AMENDMENT SECURES TO
"CITIZENS OF THE UNITED STATES."  ONLY THE INDIVIDUAL COMPLAINANTS MAY
MAINTAIN THIS SUIT.  P. 514. 

3. 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.  DISTINGUISHING
DAVIS V. MASSACHUSETTS, 167 U.S. 43.  P. 515. 

4.  THE ORDINANCE HERE IN QUESTION, WHICH FORBIDS PUBLIC ASSEMBLY IN
THE STREETS OR PARKS OF THE CITY WITHOUT A PERMIT FROM THE DIRECTOR OF
SAFETY, WHO MAY REFUSE SUCH PERMIT UPON HIS MERE OPINION THAT SUCH
REFUSAL WILL PREVENT "RIOTS, DISTURBANCES OR DISORDERLY ASSEMBLAGE," IS
VOID UPON ITS FACE.  P. 516. 

IT DOES NOT MAKE COMFORT OR CONVENIENCE IN THE USE OF THE STREETS OR
PARKS THE STANDARD OF OFFICIAL ACTION, AND CAN BE MADE THE INSTRUMENT
OF ARBITRARY SUPPRESSION OF FREE EXPRESSION OF VIEWS ON NATIONAL
AFFAIRS.  UNCONTROLLED OFFICIAL SUPPRESSION OF THE PRIVILEGE OF PUBLIC
ASSEMBLY CAN NOT BE MADE A SUBSTITUTE FOR THE DUTY TO MAINTAIN ORDER IN
CONNECTION WITH THE EXERCISE OF THE RIGHT. 

5.  THE QUESTION WHETHER EXEMPTION FROM THE SEARCHES AND SEIZURES
PROSCRIBED BY THE FOURTH AMENDMENT IS AFFORDED BY THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOURTEENTH IS NOT INVOLVED.  P. 517. 

6.  AN ORDINANCE ABSOLUTELY PROHIBITING DISTRIBUTION OF CIRCULARS,
HANDBILLS, PLACARDS, ETC., IN ANY STREET OR PUBLIC PLACE IS VOID. 
LOVELL V. GRIFFIN, 303 U.S. 444.  P. 518. 

PER STONE, J., WITH WHOM REED, J., CONCURRED.  THE CHIEF JUSTICE
CONCURRED IN PART (P. 532). 

1.  FREEDOM OF SPEECH AND OF ASSEMBLY FOR ANY LAWFUL PURPOSE ARE
RIGHTS OF PERSONAL LIBERTY SECURED TO ALL PERSONS, WITHOUT REGARD TO
CITIZENSHIP, BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  P.
519. 

THERE IS NO OCCASION IN THIS CASE TO CONSIDER WHETHER FREEDOM OF
SPEECH AND OF ASSEMBLY ARE IMMUNITIES SECURED BY THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT TO CITIZENS OF THE UNITED
STATES. 

2. THE DECREE WHICH IS NOW AFFIRMED IS WITHOUT SUPPORT IN THE RECORD,
IF THE CONSTITUTIONAL RIGHT OF FREE SPEECH AND ASSEMBLY IS DEPENDENT ON
THE PRIVILEGES AND IMMUNITIES CLAUSE RATHER THAN THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  COMPLAINANTS ARE NOT ALLEGED, SHOWN, OR
FOUND TO BE CITIZENS OF THE UNITED STATES.  THE FINDINGS DO NOT SUPPORT
THE CONCLUSION THAT THE PROPOSED MEETINGS OF COMPLAINANTS WERE FOR ANY
PURPOSE AFFECTING THE RELATIONSHIP BETWEEN COMPLAINANTS AND THE UNITED
STATES OR PERTAINING TO UNITED STATES CITIZENSHIP.  THE DECREE IS NOT
RESTRICTED TO INTERFERENCES WITH RIGHTS OR IMMUNITIES OF UNITED STATES
CITIZENSHIP, BUT ENJOINS UNLAWFUL INTERFERENCE WITH ALL MEETINGS FOR
LAWFUL PURPOSES AND THE LAWFUL DISSEMINATION OF ALL INFORMATION.  PP.
522-524. 

3.  THE SUIT IS MAINTAINABLE UNDER JUD.  CODE, SEC. 24(14) AS A SUIT
FOR PROTECTION OF RIGHTS AND PRIVILEGES GUARANTEED BY THE DUE PROCESS
CLAUSE.  P. 525. 

THE RIGHT OF THE INDIVIDUAL COMPLAINANTS TO MAINTAIN IT CONFERRED BY
SEC. 24(14) DOES NOT DEPEND ON THEIR CITIZENSHIP AND CAN NOT RIGHTLY BE
MADE TO TURN ON THE EXISTENCE OR NON-EXISTENCE OF A PURPOSE TO
DISSEMINATE INFORMATION ABOUT THE NATIONAL LABOR RELATIONS ACT. 

4.  THE LIBERTY GUARANTEED BY THE DUE PROCESS CLAUSE IS THE LIBERTY
OF NATURAL, NOT ARTIFICIAL, PERSONS.  P. 527. 

A CORPORATION CAN NOT BE SAID TO BE DEPRIVED OF THE CIVIL RIGHTS OF
FREEDOM OF SPEECH AND OF ASSEMBLY. 

5. THE RIGHT CONFERRED BY THE CIVIL RIGHTS ACT OF APRIL 20, 1871, TO
MAINTAIN A SUIT IN EQUITY IN THE FEDERAL COURTS TO PROTECT THE SUITOR
AGAINST A DEPRIVATION OF RIGHTS OR IMMUNITIES SECURED BY THE
CONSTITUTION HAS BEEN PRESERVED, AND WHENEVER THE RIGHT IS ONE OF
PERSONAL LIBERTY, NOT DEPENDENT FOR ITS EXISTENCE UPON THE INFRINGEMENT
OF PROPERTY RIGHTS, THERE IS JURISDICTION IN THE DISTRICT COURT UNDER
JUD.  CODE SEC. 24(14) TO ENTERTAIN IT WITHOUT PROOF THAT THE AMOUNT IN
CONTROVERSY EXCEEDS $3,000.  P. 531. 

JUD. CODE SEC. 24(1), CONFERRING UPON THE DISTRICT COURT JURISDICTION
OF SUITS "ARISING UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES"
IN WHICH THE VALUE IN CONTROVERSY EXCEEDS THE SUM OF $3,000, IS NOT TO
BE INTERPRETED AS REQUIRING A DIFFERENT RESULT. 

HAGUE, MAYOR, ET AL. V. COMMITTEE FOR INDUSTRIAL ORGANIZATION ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 306 U.S. 624, TO REVIEW A DECREE WHICH MODIFIED AND
AFFIRMED A DECREE OF INJUNCTION, 25 F.2D 127, IN A SUIT BROUGHT BY
INDIVIDUALS, UNINCORPORATED LABOR ORGANIZATIONS, AND A MEMBERSHIP
CORPORATION, AGAINST OFFICIALS OF A MUNICIPALITY TO RESTRAIN ALLEGED
VIOLATIONS OF CONSTITUTIONAL RIGHTS OF FREE SPEECH AND OF ASSEMBLY. 

MR. JUSTICE BUTLER, PRESIDING IN THE ABSENCE OF THE CHIEF JUSTICE AND
MR. JUSTICE MCREYNOLDS: 

THE JUDGMENT OF THE COURT IN THIS CASE IS THAT THE DECREE IS MODIFIED
AND AS MODIFIED AFFIRMED.  MR. JUSTICE FRANKFURTER AND MR. JUSTICE
DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.  MR.
JUSTICE ROBERTS HAS AN OPINION IN WHICH MR. JUSTICE BLACK CONCURS, AND
MR. JUSTICE STONE AN OPINION IN WHICH MR. JUSTICE REED CONCURS.  THE
CHIEF JUSTICE CONCURS IN AN OPINION.  MR. JUSTICE MCREYNOLDS AND MR.
JUSTICE BUTLER DISSENT FOR REASONS STATED IN OPINIONS BY THEM
RESPECTIVELY. 

MR. JUSTICE ROBERTS DELIVERED AN OPINION IN WHICH MR. JUSTICE BLACK
CONCURRED: 

WE GRANTED CERTIORARI AS THE CASE PRESENTS IMPORTANT QUESTIONS IN
RESPECT OF THE ASSERTED PRIVILEGE AND IMMUNITY OF CITIZENS OF THE
UNITED STATES TO ADVOCATE ACTION PURSUANT TO A FEDERAL STATUTE, BY
DISTRIBUTION OF PRINTED MATTER AND ORAL DISCUSSION IN PEACEABLE
ASSEMBLY; AND THE JURISDICTION OF FEDERAL COURTS OF SUITS TO RESTRAIN
THE ABRIDGMENT OF SUCH PRIVILEGE AND IMMUNITY. 

THE RESPONDENTS, INDIVIDUAL CITIZENS, UNINCORPORATED LABOR
ORGANIZATIONS COMPOSED OF SUCH CITIZENS, AND A MEMBERSHIP CORPORATION,
BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT AGAINST THE
PETITIONERS, THE MAYOR, THE DIRECTOR OF PUBLIC SAFETY, AND THE CHIEF OF
POLICE OF JERSEY CITY, NEW JERSEY, AND THE BOARD OF COMMISSIONERS, THE
GOVERNING BODY OF THE CITY. 

THE BILL ALLEGES THAT ACTING UNDER A CITY ORDINANCE FORBIDDING THE
LEASING OF ANY HALL, WITHOUT A PERMIT FROM THE CHIEF OF POLICE, FOR A
PUBLIC MEETING AT WHICH A SPEAKER SHALL ADVOCATE OBSTRUCTION OF THE
GOVERNMENT OF THE UNITED STATES OR A STATE, OR A CHANGE OF GOVERNMENT
BY OTHER THAN LAWFUL MEANS, THE PETITIONERS, AND THEIR SUBORDINATES,
HAVE DENIED RESPONDENTS THE RIGHT TO HOLD LAWFUL MEETINGS IN JERSEY
CITY ON THE GROUND THAT THEY ARE COMMUNISTS OR COMMUNIST ORGANIZATIONS;
THAT PURSUANT TO AN UNLAWFUL PLAN, THE PETITIONERS HAVE CAUSED THE
EVICTION FROM THE MUNICIPALITY OF PERSONS THEY CONSIDERED UNDERSIRABLE
BECAUSE OF THEIR LABOR ORGANIZATION ACTIVITIES, AND HAVE ANNOUNCED THAT
THEY WILL CONTINUE SO TO DO.  IT FURTHER ALLEGES THAT ACTING UNDER AN
ORDINANCE WHICH FORBIDS ANY PERSON TO "DISTRIBUTE OR CAUSE TO BE
DISTRIBUTED OR STREWN ABOUT ANY STREET OR PUBLIC PLACE ANY NEWSPAPERS,
PAPER, PERIODICAL, BOOK, MAGAZINE, CIRCULAR, CARD OR PAMPHLET," THE
PETITIONERS HAVE DISCRIMINATED AGAINST THE RESPONDENTS BY PROHIBITING
AND INTERFERING WITH DISTRIBUTION OF LEAFLETS AND PAMPHLETS BY THE
RESPONDENTS WHILE PERMITTING OTHERS TO DISTRIBUTE SIMILAR PRINTED
MATTER; THAT PURSUANT TO A PLAN AND CONSPIRACY TO DENY THE RESPONDENTS
THEIR CONSTITUTIONAL RIGHTS AS CITIZENS OF THE UNITED STATES, THE
PETITIONERS HAVE CAUSED RESPONDENTS, AND THOSE ACTING WITH THEM, TO BE
ARRESTED FOR DISTRIBUTING PRINTED MATTER IN THE STREETS, AND HAVE
CAUSED THEM, AND THEIR ASSOCIATES, TO BE CARRIED BEYOND THE LIMITS OF
THE CITY OR TO REMOTE PLACES THEREIN, AND HAVE COMPELLED THEM TO BOARD
FERRY BOATS DESTINED FOR NEW YORK; HAVE, WITH VIOLENCE AND FORCE,
INTERFERED WITH THE DISTRIBUTION OF PAMPHLETS DISCUSSING THE RIGHTS OF
CITIZENS UNDER THE NATIONAL LABOR RELATIONS ACT; HAVE UNLAWFULLY
SEARCHED PERSONS COMING INTO THE CITY AND SEIZED PRINTED MATTER IN
THEIR POSSESSION; HAVE ARRESTED AND PROSECUTED RESPONDENTS, AND THOSE
ACTING WITH THEM, FOR ATTEMPTING TO DISTRIBUTE SUCH PRINTED MATTER; AND
HAVE THREATENED THAT IF RESPONDENTS ATTEMPT TO HOLD PUBLIC MEETINGS IN
THE CITY TO DISCUSS RIGHTS AFFORDED BY THE NATIONAL LABOR RELATIONS
ACT, THEY WOULD BE ARRESTED; AND UNLESS RESTRAINED, THE PETITIONERS
WILL CONTINUE IN THEIR UNLAWFUL CONDUCT.  THE BILL FURTHER ALLEGES THAT
RESPONDENTS HAVE REPEATEDLY APPLIED FOR PERMITS TO HOLD PUBLIC MEETINGS
IN THE CITY FOR THE STATED PURPOSE, AS REQUIRED BY ORDINANCE,  FN1
ALTHOUGH THEY DO NOT ADMIT THE VALIDITY OF THE ORDINANCE; BUT IN
EXECUTION OF A COMMON PLAN AND PURPOSE, THE PETITIONERS HAVE
CONSISTENTLY REFUSED TO ISSUE ANY PERMITS FOR MEETINGS TO BE HELD BY,
OR SPONSORED BY, RESPONDENTS, AND HAVE THUS PREVENTED THE HOLDING OF
SUCH MEETINGS; THAT THE RESPONDENTS DID NOT, AND DO NOT, PROPOSE TO
ADVOCATE THE DESTRUCTION OR OVERTHROW OF THE GOVERNMENT OF THE UNITED
STATES, OR THAT OF NEW JERSEY, BUT THAT THEIR SOLE PURPOSE IS TO
EXPLAIN TO WORKINGMEN THE PURPOSES OF THE NATIONAL LABOR RELATIONS ACT,
THE BENEFITS TO BE DERIVED FROM IT, AND THE AID WHICH THE COMMITTEE FOR
INDUSTRIAL ORGANIZATION WOULD FURNISH WORKINGMEN TO THAT END; AND ALL
THE ACTIVITIES IN WHICH THEY SEEK TO ENGAGE IN JERSEY CITY WERE, AND
ARE, TO BE PERFORMED PEACEFULLY, WITHOUT INTIMIDATION, FRAUD, VIOLENCE,
OR OTHER UNLAWFUL METHODS. 

THE BILL CHARGES THAT THE SUIT IS TO REDRESS "THE DEPRIVATION, UNDER
COLOR OF STATE LAW, STATUTE AND ORDINANCE, OF RIGHTS PRIVILEGES AND
IMMUNITIES SECURED BY THE CONSTITUTION OF THE UNITED STATES AND OF
RIGHTS SECURED BY LAWS OF THE UNITED STATES PROVIDING FOR EQUAL RIGHTS
OF CITIZENS OF THE UNITED STATES  ...  "  IT CHARGES THAT THE
PETITIONERS' CONDUCT "IS IN VIOLATION OF THEIR (RESPONDENTS) RIGHTS AND
PRIVILEGES AS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES."  IT
ALLEGES THAT THE PETITIONERS' CONDUCT HAS BEEN "IN PURSUANCE OF AN
UNLAWFUL CONSPIRACY  ...  TO INJURE OPPRESS THREATEN AND INTIMIDATE
CITIZENS OF THE UNITED STATES, INCLUDING THE INDIVIDUAL PLAINTIFFS
HEREIN,  ...  IN THE FREE EXERCISE AND ENJOYMENT OF THE RIGHTS AND
PRIVILEGES SECURED TO THEM BY THE CONSTITUTION AND LAWS OF THE UNITED
STATES.  ...  " 

THE BILL CHARGES THAT THE ORDINANCES ARE UNCONSTITUTIONAL AND VOID,
OR ARE BEING ENFORCED AGAINST RESPONDENTS IN AN UNCONSTITUTIONAL AND
DISCRIMINATORY WAY; AND THAT THE PETITIONERS, AS OFFICIALS OF THE CITY,
PURPORTING TO ACT UNDER THE ORDINANCES, HAVE DEPRIVED RESPONDENTS OF
THE PRIVILEGES OF FREE SPEECH AND PEACEABLE ASSEMBLY SECURED TO THEM,
AS CITIZENS OF THE UNITED STATES, BY THE FOURTEENTH AMENDMENT.  IT
PRAYS AN INJUNCTION AGAINST CONTINUANCE OF PETITIONERS' CONDUCT. 

THE BILL ALLEGES THAT THE CAUSE IS OF A CIVIL NATURE, ARISING UNDER
THE CONSTITUTION AND LAWS OF THE UNITED STATES, WHEREIN THE AMOUNT IN
CONTROVERSY EXCEEDS $3,000, EXCLUSIVE OF INTEREST AND COSTS; AND IS A
SUIT IN EQUITY TO REDRESS THE DEPRIVATION, UNDER COLOR OF STATE LAW,
STATUTE AND ORDINANCE, OF RIGHTS, PRIVILEGES AND IMMUNITIES SECURED BY
THE CONSTITUTION OF THE UNITED STATES, AND OF RIGHTS SECURED BY THE
LAWS OF THE UNITED STATES PROVIDING FOR EQUAL RIGHTS OF CITIZENS OF THE
UNITED STATES AND OF ALL PERSONS WITHIN THE JURISDICTION OF THE UNITED
STATES. 

THE ANSWER DENIES GENERALLY, OR QUALIFIES, THE ALLEGATIONS OF THE
BILL BUT DOES NOT DENY THAT THE INDIVIDUAL RESPONDENTS ARE CITIZENS OF
THE UNITED STATES; DENIES THAT THE AMOUNT IN CONTROVERSY "AS TO EACH
PLAINTIFF AND AGAINST EACH DEFENDANT" EXCEEDS $3,000, EXCLUSIVE OF
INTEREST AND COSTS; AND ALLEGES THAT THE SUPPOSED GROUNDS OF FEDERAL
JURISDICTION ARE FRIVOLOUS, NO FACTS BEING ALLEGED SUFFICIENT TO SHOW
THAT ANY SUBSTANTIAL FEDERAL QUESTION IS INVOLVED. 

AFTER TRIAL UPON THE MERITS THE DISTRICT COURT ENTERED FINDINGS OF
FACT AND CONCLUSIONS OF LAW AND A DECREE IN FAVOR OF RESPONDENTS.  FN2
IN BRIEF, THE COURT FOUND THAT THE PURPOSES OF RESPONDENTS, OTHER THAN
THE AMERICAN CIVIL LIBERTIES UNION, WERE THE ORGANIZATION OF
UNORGANIZED WORKERS INTO LABOR UNIONS, CAUSING SUCH UNIONS TO EXERCISE
THE NORMAL AND LEGAL FUNCTIONS OF LABOR ORGANIZATIONS, SUCH AS
COLLECTIVE BARGAINING WITH RESPECT TO THE BETTERMENT OF WAGES, HOURS OF
WORK AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT, AND THAT THESE
PURPOSES WERE LAWFUL; THAT THE PETITIONERS, ACTING IN THEIR OFFICIAL
CAPACITIES, HAVE ADOPTED AND ENFORCED THE DELIBERATE POLICY OF
EXCLUDING AND REMOVING FROM JERSEY CITY THE AGENTS OF THE RESPONDENTS;
HAVE INTERFERED WITH THEIR RIGHT OF PASSAGE UPON THE STREETS AND ACCESS
TO THE PARKS OF THE CITY; THAT THESE ENDS HAVE BEEN ACCOMPLISHED BY
FORCE AND VIOLENCE DESPITE THE FACT THAT THE PERSONS AFFECTED WERE
ACTING IN AN ORDERLY AND PEACEFUL MANNER; THAT EXCLUSION, REMOVAL
PERSONAL RESTRAINT AND INTERFERENCE, BY FORCE AND VIOLENCE, ARE
ACCOMPLISHED WITHOUT AUTHORITY OF LAW AND WITHOUT PROMPTLY BRINGING THE
PERSONS TAKEN INTO CUSTODY BEFORE A JUDICIAL OFFICER FOR HEARING. 

THE COURT FURTHER FOUND THAT THE PETITIONERS, AS OFFICIALS, ACTING IN
RELIANCE ON THE ORDINANCE DEALING WITH THE SUBJECT, HAVE ADOPTED AND
ENFORCED A DELIBERATE POLICY OF PREVENTING THE RESPONDENTS, AND THEIR
ASSOCIATES, FROM DISTRIBUTING CIRCULARS, LEAFLETS, OR HANDBILLS IN
JERSEY CITY; THAT THIS HAS BEEN DONE BY POLICEMEN ACTING FORCIBLY AND
VIOLENTLY; THAT THE PETITIONERS PROPOSE TO CONTINUE TO ENFORCE THE
POLICY OF SUCH PREVENTION; THAT THE CIRCULARS AND HANDBILLS,
DISTRIBUTION OF WHICH HAS BEEN PREVENTED, WERE NOT OFFENSIVE TO PUBLIC
MORALS, AND DID NOT ADVOCATE UNLAWFUL CONDUCT, BUT WERE GERMANE TO THE
PURPOSES ALLEGED IN THE BILL, AND THAT THEIR DISTRIBUTION WAS BEING
CARRIED OUT IN A WAY CONSISTENT WITH PUBLIC ORDER AND WITHOUT
MOLESTATION OF INDIVIDUALS OR MISUSE OR LITTERING OF THE STREETS. 
SIMILAR FINDINGS WERE MADE WITH RESPECT TO THE PREVENTION OF THE
DISTRIBUTION OF PLACARDS. 

THE FINDINGS ARE THAT THE PETITIONERS, AS OFFICIALS, HAVE ADOPTED AND
ENFORCED A DELIBERATE POLICY OF FORBIDDING THE RESPONDENTS AND THEIR
ASSOCIATES FROM COMMUNICATING THEIR VIEWS RESPECTING THE NATIONAL LABOR
RELATIONS ACT TO THE CITIZENS OF JERSEY CITY BY HOLDING MEETINGS OR
ASSEMBLIES IN THE OPEN AIR AND AT PUBLIC PLACES; THAT THERE IS NO
COMPETENT PROOF THAT THE PROPOSED SPEAKERS HAVE EVER SPOKEN AT AN
ASSEMBLY WHERE A BREACH OF THE PEACE OCCURRED OR AT WHICH ANY
UTTERANCES WERE MADE WHICH VIOLATED THE CANONS OF PROPER DISCUSSION OR
GAVE OCCASION FOR DISORDER CONSEQUENT UPON WHAT WAS SAID; THAT THERE IS
NO COMPETENT PROOF THAT THE PARKS OF JERSEY CITY ARE DEDICATED TO ANY
GENERAL PURPOSE OTHER THAN THE RECREATION OF THE PUBLIC AND THAT THERE
IS COMPETENT PROOF THAT THE MUNICIPAL AUTHORITIES HAVE GRANTED PERMITS
TO VARIOUS PERSONS OTHER THAN THE RESPONDENTS TO SPEAK AT MEETINGS IN
THE STREETS OF THE CITY. 

THE COURT FOUND THAT THE RIGHTS OF THE RESPONDENTS, AND EACH OF THEM,
INTERFERED WITH AND FRUSTRATED BY THE PETITIONERS, HAD A VALUE, AS TO
EACH RESPONDENT, IN EXCESS OF $3,000, EXCLUSIVE OF INTEREST AND COSTS;
THAT THE PETITIONERS' ENFORCEMENT OF THEIR POLICY AGAINST THE
RESPONDENTS CAUSED THE LATTER IRREPARABLE DAMAGE; THAT THE RESPONDENTS
HAVE BEEN THREATENED WITH MANIFOLD AND REPEATED PERSECUTION, AND
MANIFOLD AND REPEATED INVASIONS OF THEIR RIGHTS; AND THAT THEY HAVE
DONE NOTHING TO DISENTITLE THEM TO EQUITABLE RELIEF. 

THE COURT CONCLUDED THAT IT HAD JURISDICTION UNDER SEC. 24 AND (14)
OF THE JUDICIAL CODE; FN3 THAT THE PETITIONERS' OFFICIAL POLICY AND
ACTS WERE IN VIOLATION OF THE FOURTEENTH AMENDMENT, AND THAT THE
RESPONDENTS HAD ESTABLISHED A CAUSE OF ACTION UNDER THE CONSTITUTION OF
THE UNITED STATES AND UNDER R.S. 1979, R.S. 1980, AND R.S. 5508, AS
AMENDED.  FN4 

THE CIRCUIT COURT OF APPEALS CONCURRED IN THE FINDINGS OF FACT; HELD
THE DISTRICT COURT HAD JURISDICTION UNDER SEC. 24(1) AND (14) OF THE
JUDICIAL CODE; MODIFIED THE DECREE IN RESPECT OF ONE OF ITS PROVISIONS,
AND, AS MODIFIED, AFFIRMED IT.  FN5 

BY THEIR SPECIFICATIONS OF ERROR, THE PETITIONERS LIMIT THE ISSUES IN
THIS COURT TO THREE MATTERS.  THEY CONTEND THAT THE COURT BELOW ERRED
IN HOLDING THAT THE DISTRICT COURT HAD JURISDICTION OVER ALL OR SOME OF
THE CAUSES OF ACTION STATED IN THE BILL.  SECONDLY, THEY ASSERT THAT
THE COURT ERRED IN HOLDING THAT THE STREET MEETING ORDINANCE IS
UNCONSTITUTIONAL ON ITS FACE, AND THAT IT HAS BEEN UNCONSTITUTIONALLY
ADMINISTERED.  THIRDLY, THEY CLAIM THAT THE DECREE MUST BE SET ASIDE
BECAUSE IT EXCEEDS THE COURT'S POWER AND IS IMPRACTICABLE OF
ENFORCEMENT OR OF COMPLIANCE. 

FIRST.  EVERY QUESTION ARISING UNDER THE CONSTITUTION MAY, IF
PROPERLY RAISED IN A STATE COURT, COME ULTIMATELY TO THIS COURT FOR
DECISION.  UNTIL 1875,  FN6  SAVE FOR THE LIMITED JURISDICTION
CONFERRED BY THE CIVIL RIGHTS ACTS, INFRA, FEDERAL COURTS HAD NO
ORIGINAL JURISDICTION OF ACTIONS OR SUITS MERELY BECAUSE THE MATTER IN
CONTROVERSY AROSE UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES;
AND THE JURISDICTION THEN AND SINCE CONFERRED UPON UNITED STATES COURTS
HAS BEEN NARROWLY LIMITED. 

DISTRICT COURTS OF THE UNITED STATES.  SUBSECTION (1) GIVES
JURISDICTION OF "SUITS OF A CIVIL NATURE, AT COMMON LAW OR IN EQUITY,
...  WHERE THE MATTER IN CONTROVERSY EXCEEDS, EXCLUSIVE OF INTEREST AND
COSTS, THE SUM OR VALUE OF $3,000" AND "ARISES UNDER THE CONSTITUTION
OR LAWS OF THE UNITED STATES."    THE WRONGS OF WHICH RESPONDENTS
COMPLAIN ARE TORTIOUS INVASIONS OF ALLEGED CIVIL RIGHTS BY PERSONS
ACTING UNDER COLOR OF STATE AUTHORITY.  IT IS TRUE THAT IF THE VARIOUS
PLAINTIFFS HAD BROUGHT ACTIONS AT LAW FOR THE REDRESS OF SUCH WRONGS
THE AMOUNT NECESSARY TO JURISDICTION UNDER SEC. 24(1) WOULD HAVE BEEN
DETERMINED BY THE SUM CLAIMED IN GOOD FAITH.  FN7  BUT IT DOES NOT
FOLLOW THAT IN A SUIT TO RESTRAIN THREATENED INVASIONS OF SUCH RIGHTS A
MERE AVERMENT OF THE AMOUNT IN CONTROVERSY CONFERS JURISDICTION.  IN
SUITS BROUGHT UNDER SUBSECTION (1) A TRAVERSE OF THE ALLEGATION AS TO
THE AMOUNT IN CONTROVERSY, OR A MOTION TO DISMISS BASED UPON THE
ABSENCE OF SUCH AMOUNT, CALLS FOR SUBSTANTIAL PROOF ON THE PART OF THE
PLAINTIFF OF FACTS JUSTIFYING THE CONCLUSION THAT THE SUIT INVOLVES THE
NECESSARY SUM.  FN8  THE RECORD HERE IS BARE OF ANY SHOWING OF THE
VALUE OF THE ASSERTED RIGHTS TO THE RESPONDENTS INDIVIDUALLY AND THE
SUGGESTION THAT, IN TOTAL, THEY HAVE THE REQUISITE VALUE IS UNAVAILING,
SINCE THE PLAINTIFFS MAY NOT AGGREGATE THEIR INTERESTS IN ORDER TO
ATTAIN THE AMOUNT NECESSARY TO GIVE JURISDICTION.  FN9  WE CONCLUDE
THAT THE DISTRICT COURT LACKED JURISDICTION UNDER SEC. 24(1). 

AUTHORIZED BY LAW TO BE BROUGHT BY ANY PERSON TO REDRESS THE
DEPRIVATION, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE, REGULATION,
CUSTOM, OR USAGE, OF ANY STATE, OF ANY RIGHT, PRIVILEGE, OR IMMUNITY,
SECURED BY THE CONSTITUTION OF THE UNITED STATES, OR OF ANY RIGHT
SECURED BY ANY LAW OF THE UNITED STATES PROVIDING FOR EQUAL RIGHTS OF
CITIZENS OF THE UNITED STATES, OR OF ALL PERSONS WITHIN THE
JURISDICTION OF THE UNITED STATES."  FN10 

THE PETITIONERS INSIST THAT THE RIGHTS OF WHICH THE RESPONDENTS SAY
THEY HAVE BEEN DEPRIVED ARE NOT WITHIN THOSE DESCRIBED IN SUBSECTION
(14).  THE COURTS BELOW HAVE HELD THAT CITIZENS OF THE UNITED STATES
POSSESS SUCH RIGHTS BY VIRTUE OF THEIR CITIZENSHIP; THAT THE FOURTEENTH
AMENDMENT SECURES THESE RIGHTS AGAINST INVASION BY A STATE, AND
AUTHORIZES LEGISLATION BY CONGRESS TO ENFORCE THE AMENDMENT. 

PRIOR TO THE CIVIL WAR THERE WAS CONFUSION AND DEBATE AS TO THE
RELATION BETWEEN UNITED STATES CITIZENSHIP AND STATE CITIZENSHIP. 
BEYOND DISPUTE, CITIZENSHIP OF THE UNITED STATES, AS SUCH, EXISTED. 
THE CONSTITUTION, IN VARIOUS CLAUSES, RECOGNIZED IT  FN11  BUT NOWHERE
DEFINED IT.  MANY THOUGHT STATE CITIZENSHIP, AND THAT ONLY, CREATED
UNITED STATES CITIZENSHIP.  FN12 

AFTER THE ADOPTION OF THE THIRTEENTH AMENDMENT, A BILL, WHICH BECAME
THE FIRST CIVIL RIGHTS ACT, FN13  WAS INTRODUCED IN THE 39TH CONGRESS,
THE MAJOR PURPOSE OF WHICH WAS TO SECURE TO THE RECENTLY FREED NEGROES
ALL THE CIVIL RIGHTS SECURED TO WHITE MEN.  THIS ACT DECLARED THAT ALL
PERSONS BORN IN THE UNITED STATES, AND NOT SUBJECT TO ANY FOREIGN
POWER, EXCLUDING INDIANS NOT TAXED, WERE CITIZENS OF THE UNITED STATES
AND SHOULD HAVE THE SAME RIGHTS IN EVERY STATE TO MAKE AND ENFORCE
CONTRACTS, TO SUE, BE PARTIES, AND GIVE EVIDENCE, TO INHERIT, PURCHASE,
LEASE, SELL, HOLD, AND CONVEY REAL AND PERSONAL PROPERTY, AND TO ENJOY
THE FULL AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS FOR THE SECURITY
OF PERSONS AND PROPERTY TO THE SAME EXTENT AS WHITE CITIZENS.  NONE
OTHER THAN CITIZENS OF THE UNITED STATES WERE WITHIN THE PROVISIONS OF
THE ACT.  IT PROVIDED THAT "ANY PERSON WHO, UNDER COLOR OF ANY LAW,
STATUTE, ORDINANCE, REGULATION, OR CUSTOM, SHALL SUBJECT, OR CAUSE TO
BE SUBJECTED, ANY INHABITANT OF ANY STATE  ...  TO THE DEPRIVATION OF
ANY RIGHT SECURED OR PROTECTED BY THIS ACT" SHOULD BE GUILTY OF A
MISDEMEANOR.  IT ALSO CONFERRED ON DISTRICT COURTS JURISDICTION OF
CIVIL ACTIONS BY PERSONS DEPRIVED OF RIGHTS SECURED TO THEM BY ITS
TERMS. 

BY REASON OF DOUBTS AS TO THE POWER TO ENACT THE LEGISLATION, AND
BECAUSE THE POLICY THEREBY EVIDENCED MIGHT BE REVERSED BY A SUBSEQUENT
CONGRESS, THERE WAS INTRODUCED AT THE SAME SESSION AN ADDITIONAL
AMENDMENT TO THE CONSTITUTION WHICH BECAME THE FOURTEENTH. 

THE FIRST SENTENCE OF THE AMENDMENT SETTLED THE OLD CONTROVERSY AS TO
CITIZENSHIP BY PROVIDING THAT "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."  THENCEFORWARD
CITIZENSHIP OF THE UNITED STATES BECAME PRIMARY AND CITIZENSHIP OF A
STATE SECONDARY.  FN14 

THE FIRST SECTION OF THE AMENDMENT FURTHER PROVIDES:  "NO STATE SHALL
MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR
IMMUNITIES OF CITIZENS OF THE UNITED STATES; ...  " 

THE SECOND CIVIL RIGHTS ACT  FN15  WAS PASSED BY THE 41ST CONGRESS. 
ITS PURPOSE WAS TO ENFORCE THE PROVISIONS OF THE FOURTEENTH AMENDMENT,
PURSUANT TO THE AUTHORITY GRANTED CONGRESS BY THE FIFTH SECTION OF THE
AMENDMENT.  BY SEC. 18 IT REENACTED THE CIVIL RIGHTS ACT OF 1866. 

A THIRD CIVIL RIGHTS ACT, ADOPTED APRIL 20, 1871,  FN16  PROVIDED
"THAT ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE, ORDINANCE,
REGULATION, CUSTOM, OR USAGE OF ANY STATE, SHALL SUBJECT, OR CAUSE TO
BE SUBJECTED, ANY PERSON WITHIN THE JURISDICTION OF THE UNITED STATES
TO THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY
THE CONSTITUTION OF THE UNITED STATES, SHALL, ANY SUCH LAW, STATUTE,
ORDINANCE, REGULATION, CUSTOM, OR USAGE OF THE STATE TO THE CONTRARY
NOTWITHSTANDING, BE LIABLE TO THE PARTY INJURED IN ANY ACTION AT LAW,
SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS; ... "  THIS,
WITH CHANGES OF THE ARRANGEMENT OF CLAUSES WHICH WERE NOT INTENDED TO
ALTER THE SCOPE OF THE PROVISION, BECAME R.S. 1979, NOW TITLE 8, SEC.
43 OF THE UNITED STATES CODE. 

AS HAS BEEN SAID, PRIOR TO THE ADOPTION OF THE FOURTEENTH AMENDMENT,
THERE HAD BEEN NO CONSTITUTIONAL DEFINITION OF CITIZENSHIP OF THE
UNITED STATES, OR OF THE RIGHTS, PRIVILEGES, AND IMMUNITIES SECURED
THEREBY OR SPRINGING THEREFROM.  THE PHRASE "PRIVILEGES AND IMMUNITIES"
WAS USED IN ARTICLE IV, SEC. 2 OF THE CONSTITUTION, WHICH DECREES THAT
"THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL PRIVILEGES AND
IMMUNITIES OF CITIZENS IN THE SEVERAL STATES." 

AT ONE TIME IT WAS THOUGHT THAT THIS SECTION RECOGNIZED A GROUP OF
RIGHTS WHICH, ACCORDING TO THE JURISPRUDENCE OF THE DAY, WERE CLASSED
AS "NATURAL RIGHTS"; AND THAT THE PURPOSE OF THE SECTION WAS TO CREATE
RIGHTS OF CITIZENS OF THE UNITED STATES BY GUARANTEEING THE CITIZENS OF
EVERY STATE THE RECOGNITION OF THIS GROUP OF RIGHTS BY EVERY OTHER
STATE.  SUCH WAS THE VIEW OF JUSTICE WASHINGTON.  FN17 

WHILE THIS DESCRIPTION OF THE CIVIL RIGHTS OF THE CITIZENS OF THE
STATES HAS BEEN QUOTED WITH APPROVAL,  FN18  IT HAS COME TO BE THE
SETTLED VIEW THAT ARTICLE IV, SEC. 2, DOES NOT IMPORT THAT A CITIZEN OF
ONE STATE CARRIES WITH HIM INTO ANOTHER FUNDAMENTAL PRIVILEGES AND
IMMUNITIES WHICH COME TO HIM NECESSARILY BY THE MERE FACT OF HIS
CITIZENSHIP IN THE STATE FIRST MENTIONED, BUT, ON THE CONTRARY, THAT IN
ANY STATE EVERY CITIZEN OF ANY OTHER STATE IS TO HAVE THE SAME
PRIVILEGES AND IMMUNITIES WHICH THE CITIZENS OF THAT STATE ENJOY.  THE
CITIZENS OF OTHER STATES IN FAVOR OF ITS OWN.  FN19 

THE QUESTION NOW PRESENTED IS WHETHER FREEDOM TO DISSEMINATE
INFORMATION CONCERNING THE PROVISIONS OF THE NATIONAL LABOR RELATIONS
ACT, TO ASSEMBLE PEACEABLY FOR DISCUSSION OF THE ACT, AND OF THE
OPPORTUNITIES AND ADVANTAGES OFFERED BY IT, IS A PRIVILEGE OR IMMUNITY
OF A CITIZEN OF THE UNITED STATES SECURED AGAINST STATE ABRIDGMENT
FN20  BY SEC. 1 OF THE FOURTEENTH AMENDMENT; AND WHETHER R.S. 1979 AND
SEC. 24(14) OF THE JUDICIAL CODE AFFORD REDRESS IN A FEDERAL COURT FOR
SUCH ABRIDGMENT.  THIS IS THE NARROW QUESTION PRESENTED BY THE RECORD,
AND WE CONFINE OUR DECISION TO IT, WITHOUT CONSIDERATION OF BROADER
ISSUES WHICH THE PARTIES URGE.  THE BILL, THE ANSWER AND THE FINDINGS
FULLY PRESENT THE QUESTION.  THE BILL ALLEGES, AND THE FINDINGS SUSTAIN
THE ALLEGATION, THAT THE RESPONDENTS HAD NO OTHER PURPOSE THAN TO
INFORM CITIZENS OF JERSEY CITY BY SPEECH, AND BY THE WRITTEN WORD,
RESPECTING MATTERS GROWING OUT OF NATIONAL LEGISLATION, THE
CONSTITUTIONALITY OF WHICH THIS COURT HAS SUSTAINED. 

ALTHOUGH IT HAS BEEN HELD THAT THE FOURTEENTH AMENDMENT CREATED NO
RIGHTS IN CITIZENS OF THE UNITED STATES, BUT MERELY SECURED EXISTING
RIGHTS AGAINST STATE ABRIDGMENT,  FN21  IT IS CLEAR THAT THE RIGHT
PEACEABLY TO ASSEMBLE AND TO DISCUSS THESE TOPICS, AND TO COMMUNICATE
RESPECTING THEM, WHETHER ORALLY OR IN WRITING, IS A PRIVILEGE INHERENT
IN CITIZENSHIP OF THE UNITED STATES WHICH THE AMENDMENT PROTECTS. 

IN THE SLAUGHTER-HOUSE CASES IT WAS SAID, 16 WALL.  79:  "THE RIGHT
TO PEACEABLY ASSEMBLE AND PETITION FOR REDRESS OF GRIEVANCES, THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS, ARE RIGHTS OF THE CITIZEN
GUARANTEED BY THE FEDERAL CONSTITUTION." 

IN UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 552-553, THE COURT
SAID: 

"THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE FOR THE PURPOSE OF
PETITIONING CONGRESS FOR A REDRESS OF GRIEVANCES, OR FOR ANY THING ELSE
CONNECTED WITH THE POWERS OR THE DUTIES OF THE NATIONAL GOVERNMENT, IS
AN ATTRIBUTE OF NATIONAL CITIZENSHIP, AND, AS SUCH, UNDER THE
PROTECTION OF, AND GUARANTEED BY, THE UNITED STATES.  THE VERY IDEA OF
A GOVERNMENT, REPUBLICAN IN FORM, IMPLIES A RIGHT ON THE PART OF ITS
CITIZENS TO MEET PEACEABLY FOR CONSULTATION IN RESPECT TO PUBLIC
AFFAIRS AND TO PETITION FOR A REDRESS OF GRIEVANCES.  IF IT HAD BEEN
ALLEGED IN THESE COUNTS THAT THE OBJECT OF THE DEFENDANTS WAS TO
PREVENT A MEETING FOR SUCH A PURPOSE, THE CASE WOULD HAVE BEEN WITHIN
THE STATUTE, AND WITHIN THE SCOPE OF THE SOVEREIGNTY OF THE UNITED
STATES." 

NO EXPRESSION OF A CONTRARY VIEW HAS EVER BEEN VOICED BY THIS COURT. 

THE NATIONAL LABOR RELATIONS ACT DECLARES THE POLICY OF THE UNITED
STATES TO BE TO REMOVE OBSTRUCTIONS TO COMMERCE BY ENCOURAGING
COLLECTIVE BARGAINING, PROTECTING FULL FREEDOM OF ASSOCIATION AND SELF
ORGANIZATION OF WORKERS, AND, THROUGH THEIR REPRESENTATIVES,
NEGOTIATING AS TO CONDITIONS OF EMPLOYMENT. 

CITIZENSHIP OF THE UNITED STATES WOULD BE LITTLE BETTER THAN A NAME
IF IT DID NOT CARRY WITH IT THE RIGHT TO DISCUSS NATIONAL LEGISLATION
AND THE BENEFITS, ADVANTAGES, AND OPPORTUNITIES TO ACCRUE TO CITIZENS
THEREFROM.  ALL OF THE RESPONDENTS' PROSCRIBED ACTIVITIES HAD THIS
SINGLE END AND AIM.  THE DISTRICT COURT HAD JURISDICTION UNDER SEC.
24(14). 

NATURAL PERSONS, AND THEY ALONE, ARE ENTITLED TO THE PRIVILEGES AND
IMMUNITIES WHICH SEC. 1 OF THE FOURTEENTH AMENDMENT SECURES FOR
"CITIZENS OF THE UNITED STATES."  FN22  ONLY THE INDIVIDUAL RESPONDENTS
MAY, THEREFORE, MAINTAIN THIS SUIT. 

SECOND.  WHAT HAS BEEN SAID DEMONSTRATES THAT, IN THE LIGHT OF THE
FACTS FOUND, PRIVILEGES AND IMMUNITIES OF THE INDIVIDUAL RESPONDENTS AS
CITIZENS OF THE UNITED STATES, WERE INFRINGED BY THE PETITIONERS, BY
VIRTUE OF THEIR OFFICIAL POSITIONS, UNDER COLOR OF ORDINANCES OF JERSEY
CITY, UNLESS, AS PETITIONERS CONTEND, THE CITY'S OWNERSHIP OF STREETS
AND PARKS IS AS ABSOLUTE AS ONE'S OWNERSHIP OF HIS HOME, WITH
CONSEQUENT POWER ALTOGETHER TO EXCLUDE CITIZENS FROM THE USE THEREOF,
OR UNLESS, THOUGH THE CITY HOLDS THE STREETS IN TRUST FOR PUBLIC USE,
THE ABSOLUTE DENIAL OF THEIR USE TO THE RESPONDENTS IS A VALID EXERCISE
OF THE POLICE POWER. 

THE FINDINGS OF FACT NEGATIVE THE LATTER ASSUMPTION.  IN SUPPORT OF
THE FORMER THE PETITIONERS RELY UPON DAVIS V. MASSACHUSETTS, 167 U.S.
43.  THERE IT APPEARED THAT, PURSUANT TO ENABLING LEGISLATION, THE CITY
OF BOSTON ADOPTED AN ORDINANCE PROHIBITING ANYONE FROM SPEAKING,
DISCHARGING FIRE ARMS, SELLING GOODS, OR MAINTAINING ANY BOOTH FOR
PUBLIC AMUSEMENT ON ANY OF THE PUBLIC GROUNDS OF THE CITY EXCEPT UNDER
A PERMIT FROM THE MAYOR.  DAVIS SPOKE ON BOSTON COMMON WITHOUT A PERMIT
AND WITHOUT APPLYING TO THE MAYOR FOR ONE.  HE WAS CHARGED WITH A
VIOLATION OF THE ORDINANCE AND MOVED TO QUASH THE COMPLAINT, INTER
ALIA, ON THE GROUND THAT THE ORDINANCE ABRIDGED HIS PRIVILEGES AND
IMMUNITIES AS A CITIZEN OF THE UNITED STATES AND DENIED HIM DUE PROCESS
OF LAW BECAUSE IT WAS ARBITRARY AND UNREASONABLE.  HIS CONTENTIONS WERE
OVERRULED AND HE WAS CONVICTED.  THE JUDGMENT WAS AFFIRMED BY THE
SUPREME COURT OF MASSACHUSETTS AND BY THIS COURT. 

THE DECISION SEEMS TO BE GROUNDED ON THE HOLDING OF THE STATE COURT
THAT THE COMMON "WAS ABSOLUTELY UNDER THE CONTROL OF THE LEGISLATURE,"
AND THAT IT WAS THUS "CONCLUSIVELY DETERMINED THERE WAS NO RIGHT IN THE
PLAINTIFF IN ERROR TO USE THE COMMON EXCEPT IN SUCH MODE AND SUBJECT TO
SUCH REGULATIONS AS THE LEGISLATURE IN ITS WISDOM MAY HAVE DEEMED
PROPER TO PRESCRIBE."  THE COURT ADDED THAT THE FOURTEENTH AMENDMENT
DID NOT DESTROY THE POWER OF THE STATES TO ENACT POLICE REGULATIONS AS
TO A SUBJECT WITHIN THEIR CONTROL OR ENABLE CITIZENS TO USE PUBLIC
PROPERTY IN DEFIANCE OF THE CONSTITUTION AND LAWS OF THE STATE. 

THE ORDINANCE THERE IN QUESTION APPARENTLY HAD A DIFFERENT PURPOSE
FROM THAT OF THE ONE HERE CHALLENGED, FOR IT WAS NOT DIRECTED SOLELY AT
THE EXERCISE OF THE RIGHT OF SPEECH AND ASSEMBLY, BUT WAS ADDRESSED AS
WELL TO OTHER ACTIVITIES, NOT IN THE NATURE OF CIVIL RIGHTS, WHICH
DOUBTLESS MIGHT BE REGULATED OR PROHIBITED AS RESPECTS THEIR ENJOYMENT
IN PARKS.  IN THE INSTANT CASE THE ORDINANCE DEALS ONLY WITH THE
EXERCISE OF THE RIGHT OF ASSEMBLY FOR THE PURPOSE OF COMMUNICATING
VIEWS ENTERTAINED BY SPEAKERS, AND IS NOT A GENERAL MEASURE TO PROMOTE
THE PUBLIC CONVENIENCE IN THE USE OF THE STREETS OR PARKS. 

WE HAVE NO OCCASION TO DETERMINE WHETHER, ON THE FACTS DISCLOSED, THE
DAVIS CASE WAS RIGHTLY DECIDED, BUT WE CANNOT AGREE THAT IT RULES THE
INSTANT CASE.  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.    WE
THINK THE COURT BELOW WAS RIGHT IN HOLDING THE ORDINANCE QUOTED IN NOTE
1 VOID UPON ITS FACE.  FN23  IT DOES NOT MAKE COMFORT OR CONVENIENCE IN
THE USE OF STREETS OR PARKS THE STANDARD OF OFFICIAL ACTION.  IT
ENABLES THE DIRECTOR OF SAFETY TO REFUSE A PERMIT ON HIS MERE OPINION
THAT SUCH REFUSAL WILL PREVENT "RIOTS, DISTURBANCES OR DISORDERLY
ASSEMBLAGE."  IT CAN THUS, AS THE RECORD DISCLOSES, BE MADE THE
INSTRUMENT OF ARBITRARY SUPPRESSION OF FREE EXPRESSION OF VIEWS ON
NATIONAL AFFAIRS, FOR THE PROHIBITION OF ALL SPEAKING WILL UNDOUBTEDLY
"PREVENT" SUCH EVENTUALITIES.  BUT UNCONTROLLED OFFICIAL SUPPRESSION OF
THE PRIVILEGE CANNOT BE MADE A SUBSTITUTE FOR THE DUTY TO MAINTAIN
ORDER IN CONNECTION WITH THE EXERCISE OF THE RIGHT. 

THE BILL RECITED THAT POLICEMEN, ACTING UNDER PETITIONERS'
INSTRUCTIONS, HAD SEARCHED VARIOUS PERSONS, INCLUDING THE RESPONDENTS,
AND HAD SEIZED INNOCENT CIRCULARS AND PAMPHLETS WITHOUT WARRANT OR
PROBABLE CAUSE.  IT PRAYED INJUNCTIVE RELIEF AGAINST REPETITION OF THIS
CONDUCT.  THE DISTRICT COURT MADE NO FINDINGS OF FACT CONCERNING SUCH
SEARCHES AND SEIZURES AND GRANTED NO RELIEF WITH RESPECT TO THEM.  THE
CIRCUIT COURT OF APPEALS DID NOT ENLARGE THE TERMS OF THE DECREE BUT
FOUND THAT UNREASONABLE SEARCHES AND SEIZURES HAD OCCURRED AND THAT THE
PROHIBITIONS OF THE FOURTH AMENDMENT HAD BEEN TAKEN OVER BY THE
FOURTEENTH SO AS TO PROTECT CITIZENS OF THE UNITED STATES AGAINST SUCH
ACTION. 

THE DECREE AS AFFIRMED BY THE COURT BELOW DOES NOT RESTRAIN ANY
SEARCHES OR SEIZURES.  IN EACH OF ITS PROVISIONS ADDRESSED TO
INTERFERENCE WITH LIBERTY OF THE PERSON, OR TO THE CONSPIRACY TO
DEPORT, EXCLUDE, AND INTERFERE BODILY WITH THE RESPONDENTS IN PURSUIT
OF THEIR PEACEABLE ACTIVITIES, THE DECREE CONTAINS A SAVING CLAUSE OF
WHICH THE FOLLOWING IS TYPICAL:  "EXCEPT IN SO FAR AS SUCH PERSONAL
RESTRAINT IS IN ACCORDANCE WITH ANY RIGHT OF SEARCH AND SEIZURE."  IN
THE LIGHT OF THIS RESERVATION WE THINK THERE WAS NO OCCASION FOR THE
CIRCUIT COURT OF APPEALS TO DISCUSS THE QUESTION WHETHER EXEMPTION FROM
THE SEARCHES AND SEIZURES PROSCRIBED BY THE FOURTH AMENDMENT IS
AFFORDED BY THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE FOURTEENTH, AND
WE HAVE NO OCCASION TO CONSIDER OR DECIDE ANY SUCH QUESTION. 

THIRD.  IT REMAINS TO CONSIDER THE OBJECTIONS TO THE DECREE.  SECTION
A DEALS WITH LIBERTY OF THE PERSON AND PROHIBITS THE PETITIONERS FROM
EXCLUDING OR REMOVING THE RESPONDENTS OR PERSONS ACTING WITH THEM FROM
JERSEY CITY, EXERCISING PERSONAL RESTRAINT OVER THEM WITHOUT WARRANT OR
CONFINING THEM WITHOUT LAWFUL ARREST AND PRODUCTION OF THEM FOR PROMPT
JUDICIAL HEARING, SAVING LAWFUL SEARCH AND SEIZURE; OR INTERFERING WITH
THEIR FREE ACCESS TO THE STREETS, PARKS, OR PUBLIC PLACES OF THE CITY. 
THE ARGUMENT IS THAT THIS SECTION OF THE DECREE IS SO VAGUE IN ITS
TERMS AS TO BE IMPRACTICAL OF ENFORCEMENT OR OBEDIENCE.  WE AGREE WITH
THE COURT BELOW THAT THE OBJECTION IS NOT WELL FOUNDED. 

PETITIONERS FROM INTERFERING WITH THE RIGHT OF THE RESPONDENTS, THEIR
AGENTS AND THOSE ACTING WITH THEM, TO COMMUNICATE THEIR VIEWS AS
INDIVIDUALS TO OTHERS ON THE STREETS IN AN ORDERLY AND PEACEABLE
MANNER.  IT RESERVES TO THE PETITIONERS FULL LIBERTY TO ENFORCE LAW AND
ORDER BY LAWFUL SEARCH AND SEIZURE OR BY ARREST AND PRODUCTION BEFORE A
JUDICIAL OFFICER.  WE THINK THIS PARAGRAPH UNASSAILABLE. 

PARAGRAPHS 2 AND 3 ENJOIN INTERFERENCE WITH THE DISTRIBUTION OF
CIRCULARS, HANDBILLS AND PLACARDS.  THE DECREE ATTEMPTS TO FORMULATE
THE CONDITIONS UNDER WHICH RESPONDENTS AND THEIR SYMPATHIZERS MAY
DISTRIBUTE SUCH LITERATURE FREE OF INTERFERENCE.  THE ORDINANCE
ABSOLUTELY PROHIBITING SUCH DISTRIBUTION IS VOID UNDER OUR DECISION IN
LOVELL V. GRIFFIN, SUPRA, AND PETITIONERS SO CONCEDE.  WE THINK THE
DECREE GOES TOO FAR.  ALL RESPONDENTS ARE ENTITLED TO IS A DECREE
DECLARING THE ORDINANCE VOID AND ENJOINING THE PETITIONERS FROM
ENFORCING IT. 

PARAGRAPH 4 HAS TO DO WITH PUBLIC MEETINGS.  ALTHOUGH THE COURT BELOW
HELD THE ORDINANCE VOID, THE DECREE ENJOINS THE PETITIONERS AS TO THE
MANNER IN WHICH THEY SHALL ADMINISTER IT. THERE IS AN INITIAL COMMAND
THAT THE PETITIONERS SHALL NOT PLACE "ANY PREVIOUS RESTRAINT" UPON THE
RESPONDENTS IN RESPECT OF HOLDING MEETINGS, PROVIDED THEY APPLY FOR A
PERMIT AS REQUIRED BY THE ORDINANCE.  THIS IS FOLLOWED BY AN
ENUMERATION OF THE CONDITIONS UNDER WHICH A PERMIT MAY BE GRANTED OR
DENIED.  WE THINK THIS IS WRONG.  AS THE ORDINANCE IS VOID, THE
RESPONDENTS ARE ENTITLED TO A DECREE SO DECLARING AND AN INJUNCTION
AGAINST ITS ENFORCEMENT BY THE PETITIONERS.  THEY ARE FREE TO HOLD
MEETINGS WITHOUT A PERMIT AND WITHOUT REGARD TO THE TERMS OF THE VOID
ORDINANCE.  THE COURTS CANNOT REWRITE THE ORDINANCE, AS THE DECREE, IN
EFFECT, DOES. 

THE BILL SHOULD BE DISMISSED AS TO ALL SAVE THE INDIVIDUAL PLANTIFFS,
AND SEC. B, PARAGRAPHS 2, 3 AND 4 OF THE DECREE SHOULD BE MODIFIED AS
INDICATED.  IN OTHER RESPECTS THE DECREE SHOULD BE AFFIRMED. 

FN1  "THE BOARD OF COMMISSIONERS OF JERSEY CITY DO ORDAIN: 

"1.  FROM AND AFTER THE PASSAGE OF THIS ORDINANCE, NO PUBLIC PARADES
OR PUBLIC ASSEMBLY IN OR UPON THE PUBLIC STREETS, HIGHWAYS, PUBLIC
PARKS OR PUBLIC BUILDINGS OF JERSEY CITY SHALL TAKE PLACE OR BE
CONDUCTED UNTIL A PERMIT SHALL BE OBTAINED FROM THE DIRECTOR OF PUBLIC
SAFETY. 

"2.  THE DIRECTOR OF PUBLIC SAFETY IS HEREBY AUTHORIZED AND EMPOWERED
TO GRANT PERMITS FOR PARADES AND PUBLIC ASSEMBLY, UPON APPLICATION MADE
TO HIM AT LEAST THREE DAYS PRIOR TO THE PROPOSED PARADE OR PUBLIC
ASSEMBLY. 

"3.  THE DIRECTOR OF PUBLIC SAFETY IS HEREBY AUTHORIZED TO REFUSE TO
ISSUE SAID PERMIT WHEN, AFTER INVESTIGATION OF ALL OF THE FACTS AND
CIRCUMSTANCES PERTINENT TO SAID APPLICATION, HE BELIEVES IT TO BE
PROPER TO REFUSE THE ISSUANCE THEREOF; PROVIDED, HOWEVER, THAT SAID
PERMIT SHALL ONLY BE REFUSED FOR THE PURPOSE OF PREVENTING RIOTS,
DISTURBANCES OR DISORDERLY ASSEMBLAGE. 

"4.  ANY PERSON OR PERSONS VIOLATING ANY OF THE PROVISIONS OF THIS
ORDINANCE SHALL UPON CONVICTION BEFORE A POLICE MAGISTRATE OF THE CITY
OF JERSEY CITY BE PUNISHED BY A FINE NOT EXCEEDING TWO HUNDRED DOLLARS
OR IMPRISONMENT IN THE HUDSON COUNTY JAIL FOR A PERIOD NOT EXCEEDING
NINETY DAYS OR BOTH." 

FN2  25 F.SUPP.  127. 

FN3  28 U.S.C. SEC. 41(1), (12) AND (14). 

FN4  8 U.S.C. SECS. 43 AND 47(3), 18 U.S.C. SEC. 51. 

FN5  HAGUE V. COMMITTEE FOR INDUSTRIAL ORGANIZATION, 101 F.2D 774. 

FN6  SEE ACT OF MARCH 3, 1875, C. 137, 18 STAT. 470. 

FN7  WILEY V. SINKLER, 179 U.S. 58; SWAFFORD V. TEMPLETON, 185 U.S.
487.  COMPARE ST. PAUL MERCURY INDEMNITY CO. V. RED CAB CO., 303 U.S.
283, 288. 

FN8  MCNUTT V. GENERAL MOTORS ACCEPTANCE CORP., 298 U.S. 178; COMPARE
KVOS, INC. V. ASSOCIATED PRESS, 299 U.S. 269. 

FN9  WHELESS V. ST. LOUIS, 180 U.S. 379; PINEL V. PINEL, 240 U.S.
594, 596; SCOTT V. FRAZIER, 253 U.S. 243. 

FN10  THE SECTION IS DERIVED FROM R.S. 563, SEC. 12, WHICH, IN TURN,
ORIGINATED IN SEC. 3 OF THE CIVIL RIGHTS ACT OF APRIL 9, 1866, 14 STAT.
27, AS REENACTED BY SEC. 18 OF THE CIVIL RIGHTS ACT OF MAY 31, 1870, 16
STAT. 144, AND REFERRED TO IN SEC. 1 OF THE CIVIL RIGHTS ACT OF APRIL
20, 1871, 17 STAT. 13. 

FN11  SEE ART, I, SECS. 2 AND 3; ART. II, SEC. 1. 

FN12  SEE SCOTT V. SANDFORD, 19 HOW.  393. 

FN13  ACT OF APRIL 9, 1866, C. 31, 14 STAT. 27. 

FN14  SELECTIVE DRAFT CASES, 245 U.S. 366, 389. 

FN15 MAY 31, 1870, 16 STAT. 140.  THE ACT WAS AMENDED BY AN ACT OF
FEBRUARY 28, 1871, 16 STAT. 433. 

FN16  17 STAT. 13, SEC. 1. 

FN17  CORFIELD V. CORYELL, 4 WASH. C.C. 371; 6 FED. CAS. NO. 3230. 

FN18  THE SLAUGHTER-HOUSE CASES, 16 WALL.  36, 76; MAXWELL V. DOW,
176 U.S. 581, 588, 591; CANADIAN NORTHERN RY. CO. V. EGGEN, 252 U.S.
533, 560. 

FN19  DOWNHAM V. ALEXANDRIA, 10 WALL.  173; CHAMBERS V. BALTIMORE &
OHIO R. CO., 207 U.S. 142; LA TOURETTE V. MCMASTER, 24, U.S. 465;
CHALKER V. BIRMINGHAM & N.W. RY. CO., 249 U.S. 522; SHAFFER V. CARTER,
252 U.S. 37; UNITED STATES V. WHEELER, 254 U.S. 281; DOUGLAS V. NEW
YORK, N.H. & H.R. CO., 279 U.S. 377; WHITFIELD V. OHIO, 297 U.S. 431. 

FN20  AS TO WHAT CONSTITUTES STATE ACTION WITHIN THE MEANING OF THE
AMENDMENT, SEE VIRGINIA V. RIVES, 100 U.S. 313; EX PARTE VIRGINIA, 100
U.S. 339, 347; HOME TEL. CO. V. LOS ANGELES, 227 U.S. 278; MOONEY V.
HOLOHAN, 294 U.S. 103, 112; LOVELL V. GRIFFIN, 303 U.S. 444, 450. 

FN21  THE SLAUGHTER-HOUSE CASES, 16 WALL.  36, 77; MINOR V.
HAPPERSETT, 21 WALL.  162; EX PARTE VIRGINIA, 100 U.S. 339; IN RE
KEMMLER, 136 U.S. 436, 448. 

FN22  ORIENT INSURANCE CO. V. DAGGS, 172 U.S. 557; HOLT V. INDIANA
MANUFACTURING CO., 176 U.S. 68; WESTERN TURF ASSN. V. GREENBERG, 204
U.S. 359; SELOVER, BATES & CO. V. WALSH, 226 U.S. 112. 

FN23  LOVELL V. GRIFFIN, SUPRA.  SEE THE CONSTRUCTION OF THE
ORDINANCE BY THE SUPREME COURT OF NEW JERSEY IN THOMAS V. CASEY, 121
N.J.L. 185; 1 A.2D 866. 

MR. JUSTICE STONE: 

I DO NOT DOUBT THAT THE DECREE BELOW, MODIFIED AS HAS BEEN PROPOSED,
IS RIGHTLY AFFIRMED, BUT I AM UNABLE TO FOLLOW THE PATH BY WHICH SOME
OF MY BRETHREN HAVE ATTAINED THAT END, AND I THINK THE MATTER IS OF
SUFFICIENT IMPORTANCE TO MERIT DISCUSSION IN SOME DETAIL. 

IT HAS BEEN EXPLICITLY AND REPEATEDLY AFFIRMED BY THIS COURT, WITHOUT
A DISSENTING VOICE, THAT FREEDOM OF SPEECH AND OF ASSEMBLY FOR ANY
LAWFUL PURPOSE ARE RIGHTS OF PERSONAL LIBERTY SECURED TO ALL PERSONS,
WITHOUT REGARD TO CITIZENSHIP, BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  GITLOW V. NEW YORK, 268 U.S. 652; WHITNEY V.
CALIFORNIA, 274 U.S. 357; FISKE V. KANSAS, 274 U.S. 380; STROMBERG V.
CALIFORNIA, 283 U.S. 359; NEAR V. MINNESOTA, 283 U.S. 697; GROSJEAN V.
AMERICAN PRESS CO., 297 U.S. 233; DE JONGE V. OREGON, 299 U.S. 353;
HERNDON V. LOWRY, 301 U.S. 242; LOVELL V. GRIFFIN, 303 U.S. 444.  IT
HAS NEVER BEEN HELD THAT EITHER IS A PRIVILEGE OR IMMUNITY PECULIAR TO
CITIZENSHIP OF THE UNITED STATES, TO WHICH ALONE THE PRIVILEGES AND
IMMUNITIES CLAUSE REFERS, SLAUGHTER-HOUSE CASES, 16 WALL.  36; DUNCAN
V. MISSOURI, 152 U.S. 377, 382; TWINING V. NEW JERSEY, 211 U.S. 78, 97;
MAXWELL V. BUGBEE, 250 U.S. 525, 538; HAMILTON V. REGENTS, 293 U.S.
245, 261, AND NEITHER CAN BE BROUGHT WITHIN THE PROTECTION OF THAT
CLAUSE WITHOUT ENLARGING THE CATEGORY OF PRIVILEGES AND IMMUNITIES OF
UNITED STATES CITIZENSHIP AS IT HAS HITHERTO BEEN DEFINED. 

AS WILL PRESENTLY APPEAR, THE RIGHT TO MAINTAIN A SUIT IN EQUITY TO
RESTRAIN STATE OFFICERS, ACTING UNDER A STATE LAW, FROM INFRINGING THE
RIGHTS OF FREEDOM OF SPEECH AND OF ASSEMBLY GUARANTEED BY THE DUE
PROCESS CLAUSE, IS GIVEN BY ACT OF CONGRESS TO EVERY PERSON WITHIN THE
JURISDICTION OF THE UNITED STATES WHETHER A CITIZEN OR NOT, AND SUCH A
SUIT MAY BE MAINTAINED IN THE DISTRICT COURT WITHOUT ALLEGATION OR
PROOF THAT THE JURISDICTIONAL AMOUNT REQUIRED BY SEC. 24(1) OF THE
JUDICIAL CODE IS INVOLVED.  HENCE THERE IS NO OCCASION, FOR
JURISDICTIONAL PURPOSES OR ANY OTHER, TO CONSIDER WHETHER FREEDOM OF
SPEECH AND OF ASSEMBLY ARE IMMUNITIES SECURED BY THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT TO CITIZENS OF THE UNITED
STATES, OR TO REVIVE THE CONTENTION, REJECTED BY THIS COURT IN THE
SLAUGHTER-HOUSE CASES, SUPRA, THAT THE PRIVILEGES AND IMMUNITIES OF
UNITED STATES CITIZENSHIP, PROTECTED BY THAT CLAUSE, EXTEND BEYOND
THOSE WHICH ARISE OR GROW OUT OF THE RELATIONSHIP OF UNITED STATES
CITIZENS TO THE NATIONAL GOVERNMENT.  FN1 

THAT SUCH IS THE LIMITED APPLICATION OF THE PRIVILEGES AND IMMUNITIES
CLAUSE SEEMS NOW TO BE CONCEDED BY MY BRETHREN.  BUT IT IS SAID THAT
THE FREEDOM OF RESPONDENTS WITH WHICH THE PETITIONERS HAVE INTERFERED
IS THE "FREEDOM TO DISSEMINATE INFORMATION CONCERNING THE PROVISIONS OF
THE NATIONAL LABOR RELATIONS ACT, TO ASSEMBLE PEACEABLY FOR DISCUSSION
OF THE ACT, AND OF THE OPPORTUNITIES AND ADVANTAGES OFFERED BY IT," AND
THAT THESE ARE PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED
STATES SECURED AGAINST STATE ABRIDGMENT BY THE PRIVILEGES AND
IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT.  IT HAS BEEN SAID THAT
THE RIGHT OF CITIZENS TO ASSEMBLE FOR THE PURPOSE OF PETITIONING
CONGRESS FOR THE REDRESS OF GRIEVANCES IS A PRIVILEGE OF UNITED STATES
CITIZENSHIP PROTECTED BY THE PRIVILEGES AND IMMUNITIES CLAUSE.  UNITED
STATES V. CRUIKSHANK, 92 U.S. 542, 552-553.  WE MAY ASSUME FOR PRESENT
PURPOSES, ALTHOUGH THE STEP IS A LONG AND BY NO MEANS CERTAIN ONE, SEE
MAXWELL V. DOW, 176 U.S. 581; TWINING V. NEW JERSEY, SUPRA, THAT THE
RIGHT TO ASSEMBLE TO DISCUSS THE ADVANTAGES OF THE NATIONAL LABOR
RELATIONS ACT IS LIKEWISE A PRIVILEGE SECURED BY THE PRIVILEGES AND
IMMUNITIES CLAUSE TO CITIZENS OF THE UNITED STATES, BUT NOT TO OTHERS,
WHILE FREEDOM TO ASSEMBLE FOR THE PURPOSE OF DISCUSSING A SIMILAR STATE
STATUTE WOULD NOT BE WITHIN THE PRIVILEGES AND IMMUNITIES CLAUSE.  BUT
THE DIFFICULTY WITH THIS ASSUMPTION IS, AS THE RECORD AND BRIEFS SHOW,
THAT IT IS AN AFTERTHOUGHT FIRST EMERGING IN THIS CASE AFTER IT WAS
SUBMITTED TO US FOR DECISION, AND LIKE MOST AFTERTHOUGHTS IN LITIGATED
MATTERS IT IS WITHOUT ADEQUATE SUPPORT IN THE RECORD.    THE
RESPONDENTS IN THEIR BILL OF COMPLAINT SPECIFICALLY NAMED AND QUOTED
ARTICLE IV, SEC. 2, NOW CONCEDED TO BE INAPPLICABLE, AND THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT AS THE
PROVISIONS OF THE CONSTITUTION WHICH SECURE TO THEM THE RIGHTS OF FREE
SPEECH AND ASSEMBLY.  THEY OMITTED THE PRIVILEGES AND IMMUNITIES CLAUSE
OF THE FOURTEENTH AMENDMENT FROM THEIR QUOTATION.  THEY MADE NO
SPECIFIC ALLEGATION THAT ANY OF THOSE WHOSE FREEDOM HAD BEEN INTERFERED
WITH BY PETITIONERS WAS A CITIZEN OF THE UNITED STATES.  THE GENERAL
ALLEGATION THAT THE ACTS OF PETITIONERS COMPLAINED OF VIOLATE THE
RIGHTS OF "CITIZENS OF THE UNITED STATES, INCLUDING THE INDIVIDUAL
PLAINTIFFS HERE," AND OTHER ALLEGATIONS OF LIKE TENOR, WERE DENIED BY
PETITIONERS' ANSWER.  THERE IS NO FINDING BY EITHER COURT BELOW THAT
ANY OF RESPONDENTS OR ANY OF THOSE WHOSE FREEDOM OF SPEECH AND ASSEMBLY
HAS BEEN INFRINGED ARE CITIZENS OF THE UNITED STATES, AND WE ARE
REFERRED TO NO PART OF THE EVIDENCE IN WHICH THEIR CITIZENSHIP IS
MENTIONED OR FROM WHICH IT CAN BE INFERRED. 

BOTH COURTS BELOW FOUND, AND THE EVIDENCE SUPPORTS THE FINDINGS, THAT
THE PURPOSE OF RESPONDENTS, OTHER THAN THE CIVIL LIBERTIES UNION, IN
HOLDING MEETINGS IN JERSEY CITY, WAS TO ORGANIZE LABOR UNIONS IN
VARIOUS INDUSTRIES IN ORDER TO SECURE TO WORKERS THE BENEFITS OF
COLLECTIVE BARGAINING WITH RESPECT TO BETTERMENT OF WAGES, HOURS OF
WORK AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT.  WHETHER THE
PROPOSED UNIONS WERE TO BE ORGANIZED IN INDUSTRIES WHICH MIGHT BE
SUBJECT TO THE NATIONAL LABOR RELATIONS ACT OR TO THE JURISDICTION OF
THE NATIONAL LABOR RELATIONS BOARD DOES NOT APPEAR.  NEITHER COURT
BELOW HAS MADE ANY FINDING THAT THE MEETINGS WERE CALLED TO DISCUSS, OR
THAT THEY EVER DID IN FACT DISCUSS, THE NATIONAL LABOR RELATIONS ACT. 
THE FINDINGS DO NOT SUPPORT THE CONCLUSION THAT THE PROPOSED MEETINGS
INVOLVED ANY SUCH RELATIONSHIP BETWEEN THE NATIONAL GOVERNMENT AND
RESPONDENTS OR ANY OF THEM, ASSUMING THEY ARE CITIZENS OF THE UNITED
STATES, AS TO SHOW THAT THE ASSERTED RIGHT OR PRIVILEGE WAS THAT OF A
CITIZEN OF THE UNITED STATES, AND I CANNOT SAY THAT AN ADEQUATE BASIS
HAS BEEN LAID FOR SUPPORTING A THEORY - WHICH RESPONDENTS THEMSELVES
EVIDENTLY DID NOT ENTERTAIN - THAT ANY OF THEIR PRIVILEGES AS CITIZENS
OF THE UNITED STATES, GUARANTEED BY THE FOURTEENTH AMENDMENT, WERE
ABRIDGED, AS DISTINGUISHED FROM THE PRIVILEGES GUARANTEED TO ALL
PERSONS BY THE DUE PROCESS CLAUSE.  TRUE, THE FINDINGS REFER TO THE
SUPPRESSION BY PETITIONERS OF EXHIBITS, ONE OF WHICH TURNS OUT TO BE A
HANDBILL ADVISING WORKERS THEY HAVE THE LEGAL RIGHT, UNDER THE WAGNER
ACT, TO CHOOSE THEIR OWN LABOR UNION TO REPRESENT THEM IN COLLECTIVE
BARGAINING.  BUT THE INJUNCTION, WHICH THE COURT NOW RIGHTLY SUSTAINS,
IS NOT RESTRICTED TO THE PROTECTION OF THE RIGHT, SAID TO PERTAIN TO
UNITED STATES CITIZENSHIP, TO DISSEMINATE INFORMATION ABOUT THE WAGNER
ACT.  ON THE CONTRARY IT EXTENDS AND APPLIES IN THE BROADEST TERMS TO
INTERFERENCES WITH RESPONDENTS IN HOLDING ANY LAWFUL MEETING AND
DISSEMINATING ANY LAWFUL INFORMATION BY CIRCULAR, LEAFLET, HANDBILL AND
PLACARD.  IF, AS MY BRETHREN THINK, RESPONDENTS ARE ENTITLED TO
MAINTAIN IN THIS SUIT ONLY THE RIGHTS SECURED TO THEM BY THE PRIVILEGES
AND IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT - HERE THE RIGHT TO
DISSEMINATE INFORMATION ABOUT THE NATIONAL LABOR RELATIONS ACT - IT IS
PLAIN THAT THE DECREE IS TOO BROAD.  INSTEAD OF ENJOINING, AS IT DOES,
INTERFERENCES WITH ALL MEETINGS FOR ALL PURPOSES AND THE LAWFUL
DISSEMINATION OF ALL INFORMATION, IT SHOULD HAVE CONFINED ITS RESTRAINT
TO INTERFERENCES WITH THE DISSEMINATION OF INFORMATION ABOUT THE
NATIONAL LABOR RELATIONS ACT, THROUGH MEETINGS OR OTHERWISE.  THE COURT
BELOW RIGHTLY OMITTED ANY SUCH LIMITATION FROM THE DECREE, EVIDENTLY
BECAUSE, AS IT DECLARED, PETITIONERS' ACTS INFRINGED THE DUE PROCESS
CLAUSE, WHICH GUARANTEES TO ALL PERSONS FREEDOM OF SPEECH AND OF
ASSEMBLY FOR ANY LAWFUL PURPOSE. 

NO MORE GRAVE AND IMPORTANT ISSUE CAN BE BROUGHT TO THIS COURT THAN
THAT OF FREEDOM OF SPEECH AND ASSEMBLY, WHICH THE DUE PROCESS CLAUSE
GUARANTEES TO ALL PERSONS REGARDLESS OF THEIR CITIZENSHIP, BUT WHICH
THE PRIVILEGES AND IMMUNITIES CLAUSE SECURES ONLY TO CITIZENS, AND THEN
ONLY TO THE LIMITED EXTENT THAT THEIR RELATIONSHIP TO THE NATIONAL
GOVERNMENT IS AFFECTED.  I AM UNABLE TO REST DECISION HERE ON THE
ASSERTION, WHICH I THINK THE RECORD FAILS TO SUPPORT, THAT RESPONDENTS
MUST DEPEND UPON THEIR LIMITED PRIVILEGES AS CITIZENS OF THE UNITED
STATES IN ORDER TO SUSTAIN THEIR CAUSE, OR UPON SO PALPABLE AN
AVOIDANCE OF THE REAL ISSUE IN THE CASE, WHICH RESPONDENTS HAVE RAISED
BY THEIR PLEADINGS AND SUSTAINED BY THEIR PROOF.  THAT ISSUE IS WHETHER
THE PRESENT PROCEEDING CAN BE MAINTAINED UNDER SEC. 24(14) OF THE
JUDICIAL CODE AS A SUIT FOR THE PROTECTION OF RIGHTS AND PRIVILEGES
GUARANTEED BY THE DUE PROCESS CLAUSE.  I THINK RESPONDENTS' RIGHT TO
MAINTAIN IT DOES NOT DEPEND ON THEIR CITIZENSHIP AND CANNOT RIGHTLY BE
MADE TO TURN ON THE EXISTENCE OR NON-EXISTENCE OF A PURPOSE TO
DISSEMINATE INFORMATION ABOUT THE NATIONAL LABOR RELATIONS ACT.  IT IS
ENOUGH THAT PETITIONERS HAVE PREVENTED RESPONDENTS FROM HOLDING
MEETINGS AND DISSEMINATING INFORMATION WHETHER FOR THE ORGANIZATION OF
LABOR UNIONS OR FOR ANY OTHER LAWFUL PURPOSE. 

IF IT BE THE PART OF WISDOM TO AVOID UNNECESSARY DECISION OF
CONSTITUTIONAL QUESTIONS, IT WOULD SEEM TO BE EQUALLY SO TO AVOID THE
UNNECESSARY CREATION OF NOVEL CONSTITUTIONAL DOCTRINE, INADEQUATELY
SUPPORTED BY THE RECORD, IN ORDER TO ATTAIN AN END EASILY AND CERTAINLY
REACHED BY FOLLOWING THE BEATEN PATHS OF CONSTITUTIONAL DECISION. 

THE RIGHT TO MAINTAIN THE PRESENT SUIT IS CONFERRED UPON THE
INDIVIDUAL RESPONDENTS BY THE DUE PROCESS CLAUSE AND ACTS OF CONGRESS,
REGARDLESS OF THEIR CITIZENSHIP AND OF THE AMOUNT IN CONTROVERSY. 
PROVIDED THAT "ANY PERSON WHO, UNDER COLOR OF ANY LAW, STATUTE,
ORDINANCE  ...  OF ANY STATE, SHALL SUBJECT, OR CAUSE TO BE SUBJECTED,
ANY PERSON WITHIN THE JURISDICTION OF THE UNITED STATES TO THE
DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE
CONSTITUTION OF THE UNITED STATES, SHALL  ...  BE LIABLE TO THE PARTY
INJURED IN ANY ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
PROCEEDING FOR REDRESS."  AND IT DIRECTED THAT SUCH PROCEEDINGS SHOULD
BE PROSECUTED IN THE SEVERAL DISTRICT OR CIRCUIT COURTS OF THE UNITED
STATES.  THE RIGHT OF ACTION GIVEN BY THIS SECTION WAS LATER
SPECIFICALLY LIMITED TO "ANY CITIZEN OF THE UNITED STATES OR OTHER
PERSON WITHIN THE JURISDICTION THEREOF," AND WAS EXTENDED TO INCLUDE
RIGHTS, PRIVILEGES AND IMMUNITIES SECURED BY THE LAWS OF THE UNITED
STATES AS WELL AS BY THE CONSTITUTION.  AS THUS MODIFIED THE PROVISION
WAS CONTINUED AS SEC. 1979 OF THE REVISED STATUTES AND NOW CONSTITUTES
SEC. 43 OF TITLE 8 OF THE UNITED STATES CODE.  IT WILL BE OBSERVED THAT
THE CAUSE OF ACTION, GIVEN BY THE SECTION IN ITS ORIGINAL AS WELL AS
ITS FINAL FORM, EXTENDS BROADLY TO DEPRIVATION BY STATE ACTION OF THE
RIGHTS, PRIVILEGES AND IMMUNITIES SECURED TO PERSONS BY THE
CONSTITUTION.  IT THUS INCLUDES THE FOURTEENTH AMENDMENT AND SUCH
PRIVILEGES AND IMMUNITIES AS ARE SECURED BY THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES, AS WELL AS BY THE PRIVILEGES AND IMMUNITIES CLAUSE
OF THAT AMENDMENT.  IT WILL ALSO BE OBSERVED THAT THEY ARE THOSE RIGHTS
SECURED TO PERSONS, WHETHER CITIZENS OF THE UNITED STATES OR NOT, TO
WHOM THE AMENDMENT IN TERMS EXTENDS THE BENEFIT OF THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES. 

FOLLOWING THE DECISION OF THE SLAUGHTER-HOUSE CASES AND BEFORE THE
LATER EXPANSION BY JUDICIAL DECISION OF THE CONTENT OF THE DUE PROCESS
AND EQUAL PROTECTION CLAUSES, THERE WAS LITTLE SCOPE FOR THE OPERATION
OF THIS STATUTE UNDER THE FOURTEENTH AMENDMENT.  THE OBSERVATION OF THE
COURT IN UNITED STATES V. CRUIKSHANK, 92 U.S. 542, 551, THAT THE RIGHT
OF ASSEMBLY WAS NOT SECURED AGAINST STATE ACTION BY THE CONSTITUTION,
MUST BE ATTRIBUTED TO THE DECISION IN THE SLAUGHTER-HOUSE CASES THAT
ONLY PRIVILEGES AND IMMUNITIES PECULIAR TO UNITED STATES CITIZENSHIP
WERE SECURED BY THE PRIVILEGES AND IMMUNITIES CLAUSE, AND TO THE
FURTHER FACT THAT AT THAT TIME IT HAD NOT BEEN DECIDED THAT THE RIGHT
WAS ONE PROTECTED BY THE DUE PROCESS CLAUSE.  THE ARGUMENT THAT THE
PHRASE IN THE STATUTE "SECURED BY THE CONSTITUTION" REFERS TO RIGHTS
"CREATED," RATHER THAN "PROTECTED" BY IT, IS NOT PERSUASIVE.  THE
PREAMBLE OF THE CONSTITUTION, PROCLAIMING THE ESTABLISHMENT OF THE
CONSTITUTION IN ORDER TO "SECURE THE BLESSINGS OF LIBERTY," USES THE
WORD "SECURE" IN THE SENSE OF "PROTECT" OR "MAKE CERTAIN."  THAT THE
PHRASE WAS USED IN THIS SENSE IN THE STATUTE NOW UNDER CONSIDERATION
WAS RECOGNIZED IN CARTER V. GREENHOW, 114 U.S. 317, 322, WHERE IT WAS
HELD AS A MATTER OF PLEADING THAT THE PARTICULAR CAUSE OF ACTION SET UP
IN THE PLAINTIFF'S PLEADING WAS IN CONTRACT AND WAS NOT TO REDRESS
DEPRIVATION OF THE "RIGHT SECURED TO HIM BY THAT CLAUSE OF THE
CONSTITUTION" (THE CONTRACT CLAUSE), TO WHICH HE HAD "CHOSEN NOT TO
RESORT."  SEE, AS TO OTHER RIGHTS PROTECTED BY THE CONSTITUTION AND
HENCE SECURED BY IT, BROUGHT WITHIN THE PROVISIONS OF R.S. SEC. 5508,
LOGAN V. UNITED STATES, 144 U.S. 263; IN RE QUARLES AND BUTLER, 158
U.S. 532; UNITED STATES V. MOSLEY, 238 U.S. 383. 

SINCE FREEDOM OF SPEECH AND FREEDOM OF ASSEMBLY ARE RIGHTS SECURED TO
PERSONS BY THE DUE PROCESS CLAUSE, ALL OF THE INDIVIDUAL RESPONDENTS
ARE PLAINLY AUTHORIZED BY SEC. 1 OF THE CIVIL RIGHTS ACT OF 1871 TO
MAINTAIN THE PRESENT SUIT IN EQUITY TO RESTRAIN INFRINGEMENT OF THEIR
RIGHTS.  AS TO THE AMERICAN CIVIL LIBERTIES UNION, WHICH IS A
CORPORATION, IT CANNOT BE SAID TO BE DEPRIVED OF THE CIVIL RIGHTS OF
FREEDOM OF SPEECH AND OF ASSEMBLY, FOR THE LIBERTY GUARANTEED BY THE
DUE PROCESS CLAUSE IS THE LIBERTY OF NATURAL, NOT ARTIFICIAL, PERSONS. 
NORTHWESTERN LIFE INS. CO. V. RIGGS, 203 U.S. 243, 255; WESTERN TURF
ASSN. V. GREENBERG, 204 U.S. 359, 363. 

THE QUESTION REMAINS WHETHER THERE WAS JURISDICTION IN THE DISTRICT
COURT TO ENTERTAIN THE SUIT ALTHOUGH THE MATTER IN CONTROVERSY CANNOT
BE SHOWN TO EXCEED $3,000 IN VALUE BECAUSE THE ASSERTED RIGHTS, FREEDOM
OF SPEECH AND FREEDOM OF ASSEMBLY, ARE OF SUCH A NATURE AS NOT TO BE
SUSCEPTIBLE OF VALUATION IN MONEY.  THE QUESTION IS THE SAME WHETHER
THE RIGHT OR PRIVILEGE ASSERTED IS SECURED BY THE PRIVILEGES AND
IMMUNITIES CLAUSE OR ANY OTHER.  WHEN THE CIVIL RIGHTS ACT OF 1871
DIRECTED THAT SUITS FOR VIOLATION OF SEC. 1 OF THAT ACT SHOULD BE
PROSECUTED IN THE DISTRICT AND CIRCUIT COURTS, THE ONLY REQUIREMENT OF
A JURISDICTIONAL AMOUNT IN SUITS BROUGHT IN THE FEDERAL COURTS WAS THAT
IMPOSED BY SEC. 11 OF THE JUDICIARY ACT OF 1789, WHICH CONFERRED
JURISDICTION ON THE CIRCUIT COURTS OF SUITS WHERE "THE MATTER IN
DISPUTE" EXCEEDED $500 AND THE UNITED STATES WAS A PLAINTIFF, OR AN
ALIEN WAS A PARTY, OR THE SUIT WAS BETWEEN CITIZENS OF DIFFERENT
STATES; AND IT WAS THEN PLAIN THAT THE REQUIREMENT OF A JURISDICTIONAL
AMOUNT DID NOT EXTEND TO THE CAUSES OF ACTION AUTHORIZED BY THE CIVIL
RIGHTS ACT OF 1871.  BY THE ACT OF MARCH 3, 1875, C. 137, 18 STAT. 470,
THE JURISDICTION OF THE CIRCUIT COURTS WAS EXTENDED TO SUITS AT COMMON
LAW OR IN EQUITY "ARISING UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES" IN WHICH THE MATTER IN DISPUTE EXCEEDED $500.  BY THE ACT OF
MARCH 3, 1911, C. 231, 36 STAT. 1087, THE CIRCUIT COURTS WERE ABOLISHED
AND THEIR JURISDICTION WAS TRANSFERRED TO THE DISTRICT COURTS, AND BY
SUCCESSIVE ENACTMENTS THE JURISDICTIONAL AMOUNT APPLICABLE TO CERTAIN
CLASSES OF SUITS WAS RAISED TO $3,000.  THE PROVISIONS APPLICABLE TO
SUCH SUITS, THUS MODIFIED, APPEAR AS SEC. 24(1) OF THE JUDICIAL CODE,
28 U.S.C. SEC. 41(1). 

MEANWHILE, THE PROVISIONS CONFERRING JURISDICTION ON DISTRICT AND
CIRCUIT COURTS OVER SUITS BROUGHT UNDER SEC. 1 OF THE CIVIL RIGHTS ACT
OF 1871 WERE CONTINUED AS R.S. SECS. 563 AND 629, AND NOW APPEAR AS
SEC. 24(14) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 41(14).  THE ACT OF
MARCH 3, 1911, 36 STAT. 1087, 1091, AMENDED SEC. 24(1) OF THE JUDICIAL
CODE SO AS TO DIRECT THAT "THE FOREGOING PROVISION AS TO THE SUM OR
VALUE OF THE MATTER IN CONTROVERSY SHALL NOT BE CONSTRUED TO APPLY TO
ANY OF THE CASES MENTIONED IN THE SUCCEEDING PARAGRAPHS OF THIS
CONTAINED TWO PARALLEL PROVISIONS, ONE CONFERRING JURISDICTION ON THE
FEDERAL COURTS, DISTRICT OR CIRCUIT, TO ENTERTAIN SUITS "ARISING UNDER
THE CONSTITUTION OR LAWS OF THE UNITED STATES" IN WHICH THE AMOUNT IN
CONTROVERSY EXCEEDS A SPECIFIED VALUE; THE OTHER, NOW SEC. 24(14) OF
THE JUDICIAL CODE, CONFERRING JURISDICTION ON THOSE COURTS OF SUITS
AUTHORIZED BY THE CIVIL RIGHTS ACT OF 1871, REGARDLESS OF THE AMOUNT IN
CONTROVERSY. 

SINCE ALL OF THE SUITS THUS AUTHORIZED ARE SUITS ARISING UNDER A
STATUTE OF THE UNITED STATES TO REDRESS DEPRIVATION OF RIGHTS,
PRIVILEGES AND IMMUNITIES SECURED BY THE CONSTITUTION, ALL ARE
LITERALLY SUITS "ARISING UNDER THE CONSTITUTION OR LAWS OF THE UNITED
STATES."  BUT IT DOES NOT FOLLOW THAT IN EVERY SUCH SUIT THE PLAINTIFF
IS REQUIRED BY SEC. 24(1) OF THE JUDICIAL CODE TO ALLEGE AND PROVE THAT
THE CONSTITUTIONAL IMMUNITY WHICH HE SEEKS TO VINDICATE HAS A VALUE IN
EXCESS OF $3,000.  THERE ARE MANY RIGHTS AND IMMUNITIES SECURED BY THE
CONSTITUTION, OF WHICH FREEDOM OF SPEECH AND ASSEMBLY ARE CONSPICUOUS
EXAMPLES, WHICH ARE NOT CAPABLE OF MONEY VALUATION, AND IN MANY
INSTANCES, LIKE THE PRESENT, NO SUIT IN EQUITY COULD BE MAINTAINED FOR
THEIR PROTECTION IF PROOF OF THE JURISDICTIONAL AMOUNT WERE
PREREQUISITE.  WE CAN HARDLY SUPPOSE THAT CONGRESS, HAVING IN THE BROAD
TERMS OF THE CIVIL RIGHTS ACT OF 1871 VESTED IN ALL PERSONS WITHIN THE
JURISDICTION OF THE UNITED STATES A RIGHT OF ACTION IN EQUITY FOR THE
DEPRIVATION OF CONSTITUTIONAL IMMUNITIES, COGNIZABLE ONLY IN THE
FEDERAL COURTS, INTENDED BY THE ACT OF 1875 TO DESTROY THOSE RIGHTS OF
ACTION BY WITHHOLDING FROM THE COURTS OF THE UNITED STATES JURISDICTION
TO ENTERTAIN THEM. 

THAT SUCH WAS NOT THE PURPOSE OF THE ACT OF 1875 IN EXTENDING THE
JURISDICTION OF FEDERAL COURTS TO CAUSES OF ACTION ARISING UNDER THE
CONSTITUTION OR LAWS OF THE UNITED STATES INVOLVING A SPECIFIED
JURISDICTIONAL AMOUNT, IS EVIDENT FROM THE CONTINUANCE UPON THE STATUTE
BOOKS OF SEC. 24(14) SIDE BY SIDE WITH SEC. 24(1) OF THE JUDICIAL CODE,
AS AMENDED BY THE ACT OF 1875.  SINCE THE TWO PROVISIONS STAND AND MUST
BE READ TOGETHER, IT IS OBVIOUS THAT NEITHER IS TO BE INTERPRETED AS
ABOLISHING THE OTHER, ESPECIALLY WHEN IT IS REMEMBERED THAT THE 1911
AMENDMENT OF SEC. 24(1) PROVIDED THAT THE REQUIREMENT OF A
JURISDICTIONAL AMOUNT SHOULD NOT BE CONSTRUED TO APPLY TO CASES
MENTIONED IN SEC. 24(14).  THIS MUST BE TAKEN AS LEGISLATIVE
RECOGNITION THAT THERE ARE SUITS AUTHORIZED BY SEC. 1 OF THE ACT OF
1871 WHICH COULD BE BROUGHT UNDER SEC. 24(14) AFTER, AS WELL AS BEFORE,
THE AMENDMENT OF 1875 WITHOUT COMPLIANCE WITH ANY REQUIREMENT OF
JURISDICTIONAL AMOUNT, AND THAT THESE AT LEAST MUST BE DEEMED TO
INCLUDE SUITS IN WHICH THE SUBJECT MATTER IS ONE INCAPABLE OF
VALUATION.  OTHERWISE WE SHOULD BE FORCED TO REACH THE ABSURD
CONCLUSION THAT SEC. 24(14) IS MEANINGLESS AND THAT A LARGE PROPORTION
OF THE SUITS AUTHORIZED BY THE CIVIL RIGHTS ACT CANNOT BE MAINTAINED IN
ANY COURT, ALTHOUGH JURISDICTION OF THEM, WITH NO REQUIREMENT OF
JURISDICTIONAL AMOUNT, WAS CAREFULLY PRESERVED BY SEC. 24(14) OF THE
JUDICIAL CODE AND BY THE 1911 AMENDMENT OF SEC. 24(1).  BY TREATING
SEC. 24(14) AS CONFERRING FEDERAL JURISDICTION OF SUITS BROUGHT UNDER
THE ACT OF 1871 IN WHICH THE RIGHT ASSERTED IS INHERENTLY INCAPABLE OF
PECUNIARY VALUATION, WE HARMONIZE THE TWO PARALLEL PROVISIONS OF THE
JUDICIAL CODE, CONSTRUE NEITHER AS SUPERFLUOUS, AND GIVE TO EACH A
SCOPE IN CONFORMITY WITH ITS HISTORY AND MANIFEST PURPOSE. 

THE PRACTICAL CONSTRUCTION WHICH HAS BEEN GIVEN BY THIS COURT TO THE
TWO JURISDICTIONAL PROVISIONS ESTABLISHES THAT THE JURISDICTION
CONFERRED BY SEC. 24(14) HAS BEEN PRESERVED TO THE EXTENT INDICATED. 
IN HOLT V. INDIANA MFG. CO., 176 U.S. 68, SUIT WAS BROUGHT TO RESTRAIN
ALLEGED UNCONSTITUTIONAL TAXATION OF PATENT RIGHTS.  THE COURT HELD
THAT THE SUIT WAS ONE ARISING UNDER THE CONSTITUTION OR LAWS OF THE
UNITED STATES WITHIN THE MEANING OF SEC. 24(1) OF THE JUDICIAL CODE AND
THAT THE UNITED STATES CIRCUIT COURT IN WHICH THE SUIT HAD BEEN BEGUN
WAS WITHOUT JURISDICTION BECAUSE THE CHALLENGED TAX WAS LESS THAN THE
JURISDICTIONAL AMOUNT.  THE COURT REMARKED THAT THE PRESENT SEC. 24(14)
APPLIED ONLY TO SUITS ALLEGING DEPRIVATION OF "CIVIL RIGHTS."  ON THE
OTHER HAND, IN TRUAX V. RAICH, 239 U.S. 33, AFF'G 219 F. 273, THIS
COURT SUSTAINED THE JURISDICTION OF A DISTRICT COURT TO ENTERTAIN THE
SUIT OF AN ALIEN TO RESTRAIN ENFORCEMENT OF A STATE STATUTE ALLEGED TO
BE AN INFRINGEMENT OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT BECAUSE IT DISCRIMINATED AGAINST ALIENS IN THEIR RIGHT TO
SEEK AND RETAIN EMPLOYMENT.  THE JURISDICTION OF A DISTRICT COURT WAS
SIMILARLY SUSTAINED IN CRANE V. JOHNSON, 242 U.S. 339, ON THE AUTHORITY
OF TRUAX V. RAICH, SUPRA.  THE SUIT WAS BROUGHT IN A DISTRICT COURT TO
RESTRAIN ENFORCEMENT OF A STATE STATUTE ALLEGED TO DENY EQUAL
PROTECTION IN SUPPRESSING THE FREEDOM TO PURSUE A PARTICULAR TRADE OR
CALLING.  FOR THE PURPOSES OF THE PRESENT CASE IT IS IMPORTANT TO NOTE
THAT THE CONSTITUTIONAL RIGHT OR IMMUNITY ALLEGED IN THESE TWO CASES
WAS ONE OF PERSONAL FREEDOM, INVOKED IN THE RAICH CASE BY ONE NOT A
CITIZEN OF THE UNITED STATES.  IN BOTH CASES THE RIGHT ASSERTED AROSE
UNDER THE EQUAL PROTECTION, NOT THE PRIVILEGES AND IMMUNITIES CLAUSE;
IN BOTH THE GIST OF THE CAUSE OF ACTION WAS NOT DAMAGE OR INJURY TO
PROPERTY, BUT UNCONSTITUTIONAL INFRINGEMENT OF A RIGHT OF PERSONAL
LIBERTY NOT SUSCEPTIBLE OF VALUATION IN MONEY.  THE JURISDICTION WAS
SUSTAINED DESPITE THE OMISSION OF ANY ALLEGATION OR PROOF OF
JURISDICTIONAL AMOUNT, POINTEDLY BROUGHT TO THE ATTENTION OF THIS
COURT. 

THE CONCLUSION SEEMS INESCAPABLE THAT THE RIGHT CONFERRED BY THE ACT
OF 1871 TO MAINTAIN A SUIT IN EQUITY IN THE FEDERAL COURTS TO PROTECT
THE SUITOR AGAINST A DEPRIVATION OF RIGHTS OR IMMUNITIES SECURED BY THE
CONSTITUTION, HAS BEEN PRESERVED, AND THAT WHENEVER THE RIGHT OR
IMMUNITY IS ONE OF PERSONAL LIBERTY, NOT DEPENDENT FOR ITS EXISTENCE
UPON THE INFRINGEMENT OF PROPERTY RIGHTS, THERE IS JURISDICTION IN THE
DISTRICT COURT UNDER SEC. 24(14) OF THE JUDICIAL CODE TO ENTERTAIN IT
WITHOUT PROOF THAT THE AMOUNT IN CONTROVERSY EXCEEDS $3,000.  AS THE
RIGHT IS SECURED TO "ANY PERSON" BY THE DUE PROCESS CLAUSE, AND AS THE
STATUTE PERMITS THE SUIT TO BE BROUGHT BY "ANY PERSON" AS WELL AS BY A
CITIZEN, IT IS CERTAIN THAT RESORT TO THE PRIVILEGES AND IMMUNITIES
CLAUSE WOULD NOT SUPPORT THE DECREE WHICH WE NOW SUSTAIN AND WOULD
INVOLVE CONSTITUTIONAL EXPERIMENTATION AS GRATUITOUS AS IT IS
UNWARRANTED.  WE CANNOT BE SURE THAT ITS CONSEQUENCES WOULD NOT BE
UNFORTUNATE. 

FN1  THE PRIVILEGE OR IMMUNITY ASSERTED IN THE SLAUGHTER-HOUSE CASES
WAS THE FREEDOM TO PURSUE A COMMON BUSINESS OR CALLING, ALLEGED TO HAVE
BEEN INFRINGED BY A STATE MONOPOLY STATUTE.  IT SHOULD NOT BE FORGOTTEN
THAT THE COURT, IN DECIDING THE CASE, DID NOT DENY THE CONTENTION OF
THE DISSENTING JUSTICES THAT THE ASSERTED FREEDOM WAS IN FACT INFRINGED
BY THE STATE LAW.  IT RESTED ITS DECISION RATHER ON THE GROUND THAT THE
IMMUNITY CLAIMED WAS NOT ONE BELONGING TO PERSONS BY VIRTUE OF THEIR
CITIZENSHIP.  "IT IS QUITE CLEAR," THE COURT DECLARED (P. 74), "THAT
THERE IS A CITIZENSHIP OF THE UNITED STATES, AND A CITIZENSHIP OF A
STATE, WHICH ARE DISTINCT FROM EACH OTHER, AND WHICH DEPEND ON
DIFFERENT CHARACTERISTICS IN THE INDIVIDUAL."  AND IT HELD THAT THE
PROTECTION OF THE PRIVILEGES AND IMMUNITIES CLAUSE DID NOT EXTEND TO
THOSE "FUNDAMENTAL" RIGHTS ATTACHED TO STATE CITIZENSHIP WHICH ARE
PECULIARLY THE CREATION AND CONCERN OF STATE GOVERNMENTS AND WHICH MR.
JUSTICE WASHINGTON, IN CORFIELD V. CORYELL$N, 4 WASH. C.C. 371, 6 FED.
CAS. NO. 3230, MISTAKENLY THOUGHT TO BE GUARANTEED BY ARTICLE IV, SEC.
2 OF THE CONSTITUTION.  THE PRIVILEGES AND IMMUNITIES OF CITIZENS OF
THE UNITED STATES, IT WAS POINTED OUT, ARE CONFINED TO THAT LIMITED
CLASS OF INTERESTS GROWING OUT OF THE RELATIONSHIP BETWEEN THE CITIZEN
AND THE NATIONAL GOVERNMENT CREATED BY THE CONSTITUTION AND FEDERAL
LAWS.  SLAUGHTER-HOUSE CASES, 16 WALL.  36, 79; SEE TWINING V. NEW
JERSEY, 211 U.S. 78, 97, 98. 

THAT LIMITATION UPON THE OPERATION OF THE PRIVILEGES AND IMMUNITIES
CLAUSE HAS NOT BEEN RELAXED BY ANY LATER DECISIONS OF THIS COURT.  IN
RE KEMMLER, 136 U.S. 436, 448; MCPHERSON V. BLACKER, 146 U.S. 1, 38;
GIOZZA V. TIERNAN, 148 U.S. 657, 661; DUNCAN V. MISSOURI, 152 U.S. 377,
382.  UPON THAT GROUND APPEALS TO THIS COURT TO EXTEND THE CLAUSE
BEYOND THE LIMITATION HAVE UNIFORMLY BEEN REJECTED, AND EVEN THOSE
BASIC PRIVILEGES AND IMMUNITIES SECURED AGAINST FEDERAL INFRINGEMENT BY
THE FIRST EIGHT AMENDMENTS HAVE UNIFORMLY BEEN HELD NOT TO BE PROTECTED
FROM STATE ACTION BY THE PRIVILEGES AND IMMUNITIES CLAUSE.  WALKER V.
SAUVINET, 92 U.S. 90; HURTADO V. CALIFORNIA, 110 U.S. 516; PRESSER V.
ILLINOIS, 116 U.S. 252; O'NEILL V. VERMONT, 144 U.S. 323; MAXWELL V.
DOW, 176 U.S. 581; WEST V. LOUISIANA, 194 U.S. 258; TWINING V. NEW
JERSEY, SUPRA; PALKO V. CONNECTICUT, 302 U.S. 319. 

THE REASON FOR THIS NARROW CONSTRUCTION OF THE CLAUSE AND THE
CONSISTENTLY EXHIBITED RELUCTANCE OF THIS COURT TO ENLARGE ITS SCOPE
HAS BEEN WELL UNDERSTOOD SINCE THE DECISION OF THE SLAUGHTER-HOUSE
CASES.  IF ITS RESTRAINT UPON STATE ACTION WERE TO BE EXTENDED MORE
THAN IS NEEDFUL TO PROTECT RELATIONSHIPS BETWEEN THE CITIZEN AND THE
NATIONAL GOVERNMENT, AND IF IT WERE TO BE DEEMED TO EXTEND TO THOSE
FUNDAMENTAL RIGHTS OF PERSON AND PROPERTY ATTACHED TO CITIZENSHIP BY
THE COMMON LAW AND ENACTMENTS OF THE STATES WHEN THE AMENDMENT WAS
ADOPTED, SUCH AS WERE DESCRIBED IN CORFIELD V. CORYELL, SUPRA, IT WOULD
ENLARGE CONGRESSIONAL AND JUDICIAL CONTROL OF STATE ACTION AND MULTIPLY
RESTRICTIONS UPON IT WHOSE NATURE, THOUGH DIFFICULT TO ANTICIPATE WITH
PRECISION, WOULD BE OF SUFFICIENT GRAVITY TO CAUSE SERIOUS APPREHENSION
FOR THE RIGHTFUL INDEPENDENCE OF LOCAL GOVERNMENT.  THAT WAS THE ISSUE
FOUGHT OUT IN THE SLAUGHTER-HOUSE CASES, WITH THE DECISION AGAINST
ENLARGEMENT. 

OF THE FIFTY OR MORE CASES WHICH HAVE BEEN BROUGHT TO THIS COURT
SINCE THE ADOPTION OF THE FOURTEENTH AMENDMENT IN WHICH STATE STATUTES
HAVE BEEN ASSAILED AS VIOLATING THE PRIVILEGES AND IMMUNITIES CLAUSE,
IN ONLY A SINGLE CASE WAS A STATUTE HELD TO INFRINGE A PRIVILEGE OR
IMMUNITY PECULIAR TO CITIZENSHIP OF THE UNITED STATES.  IN THAT ONE,
COLGATE V. HARVEY, 296 U.S. 404, IT WAS THOUGHT NECESSARY TO SUPPORT
THE DECISION BY POINTING TO THE SPECIFIC REFERENCE IN THE SLAUGHTER
HOUSE CASES, SUPRA, 79, TO THE RIGHT TO PASS FREELY FROM STATE TO
STATE, SUSTAINED AS A RIGHT OF NATIONAL CITIZENSHIP IN CRANDALL V.
NEVADA, 6 WALL.  35, BEFORE THE ADOPTION OF THE AMENDMENT. 

THE CASES WILL BE FOUND COLLECTED IN FOOTNOTE 2 OF THE DISSENTING
OPINION IN COLGATE V. HARVEY, 296 U.S. 404, 445.  TO THESE SHOULD BE
ADDED HOLDEN V. HARDY, 169 U.S. 366; FERRY V. SPOKANE, P. & S.R. CO.,
258 U.S. 314; NEW YORK EX REL. BRYANT V. ZIMMERMAN, 278 U.S. 63;
WHITFIELD V. OHIO, 297 U.S. 431; BREEDLOVE V. SUTTLES, 302 U.S. 277;
PALKO V. CONNECTICUT, 302 U.S. 319. 

FN2  THIS PROVISION MADE NO CHANGE IN EXISTING LAW BUT WAS INSERTED
FOR THE PURPOSE OF REMOVING ALL DOUBT UPON THE POINT.  SEE H.R. REP.
NO. 783, PART 1, 61ST CONG., 2D SESS., P. 15; SEN. REP. NO. 388, PART
1, 61ST CONG., 2D SESS., P. 11.  CF. MILLER-MAGEE CO. V. CARPENTER, 34
F. 433; AMES V. HAGER, 36 F. 129. 

MR. CHIEF JUSTICE HUGHES, CONCURRING: 

WITH RESPECT TO THE MERITS I AGREE WITH THE OPINION OF MR. JUSTICE
ROBERTS AND IN THE AFFIRMANCE OF THE JUDGMENT AS MODIFIED.  WITH
RESPECT TO THE POINT AS TO JURISDICTION I AGREE WITH WHAT IS SAID IN
THE OPINION OF MR. JUSTICE ROBERTS AS TO THE RIGHT TO DISCUSS THE
NATIONAL LABOR RELATIONS ACT BEING A PRIVILEGE OF A CITIZEN OF THE
UNITED STATES, BUT I AM NOT SATISFIED THAT THE RECORD ADEQUATELY
SUPPORTS THE RESTING OF JURISDICTION UPON THAT GROUND.  AS TO THAT
MATTER, I CONCUR IN THE OPINION OF MR. JUSTICE STONE. 

MR. JUSTICE MCREYNOLDS, DISSENTING: 

I AM OF OPINION THAT THE DECREE OF THE CIRCUIT COURT OF APPEALS
SHOULD BE REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT WITH
INSTRUCTIONS TO DISMISS THE BILL.  IN THE CIRCUMSTANCES DISCLOSED, I
CONCLUDE THAT THE DISTRICT COURT SHOULD HAVE REFUSED TO INTERFERE BY
INJUNCTION WITH THE ESSENTIAL RIGHTS OF THE MUNICIPALITY TO CONTROL ITS
OWN PARKS AND STREETS.  WISE MANAGEMENT OF SUCH INTIMATE LOCAL AFFAIRS,
GENERALLY AT LEAST, IS BEYOND THE COMPETENCY OF FEDERAL COURTS, AND
ESSAYS IN THAT DIRECTION SHOULD BE AVOIDED. 

THERE WAS AMPLE OPPORTUNITY FOR RESPONDENTS TO ASSERT THEIR CLAIMS
THROUGH AN ORDERLY PROCEEDING IN COURTS OF THE STATE EMPOWERED
AUTHORITATIVELY TO INTERPRET HER LAWS WITH FINAL REVIEW HERE IN RESPECT
OF FEDERAL QUESTIONS. 

MR. JUSTICE BUTLER, DISSENTING: 

I AM OF OPINION THAT THE CHALLENGED ORDINANCE IS NOT VOID ON ITS
FACE; THAT IN PRINCIPLE IT DOES NOT DIFFER FROM THE BOSTON ORDINANCE,
AS APPLIED AND UPHELD BY THIS COURT, SPEAKING THROUGH MR. JUSTICE
WHITE, IN DAVIS V. MASSACHUSETTS, 167 U.S. 43, AFFIRMING THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS, SPEAKING THROUGH MR. JUSTICE HOLMES,
IN COMMONWEALTH V. DAVIS, 162 MASS. 510; 39 N.E. 113, AND THAT THE
DECREE OF THE CIRCUIT COURT OF APPEALS SHOULD BE REVERSED. 
..END :






U.S. V. ROCK ROYAL CO-OP., 307 U.S. 533 


NO. 771.  ARGUED APRIL 24, 25, 1939.  - DECIDED JUNE 5, 1939.  - 26
F.SUPP.  534, REVERSED. 


UNDER THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, THE SECRETARY
OF AGRICULTURE, AFTER NOTICE AND HEARINGS, MADE AN ORDER FOR FIXING AND
EQUALIZING MINIMUM PRICES TO BE PAID PRODUCERS FOR MILK SOLD TO DEALERS
("HANDLERS") AND DISPOSED OF BY THE LATTER EITHER IN LIQUID FORM OR AS
MILK PRODUCTS WITHIN A "MARKETING AREA" COMPRISING THE CITY OF NEW YORK
AND ADJACENT COUNTIES.  EFFORTS TO SECURE THE CONSENT OF DEALERS TO A
MARKETING AGREEMENT HAVING FAILED, THE ORDER, BEFORE ITS PROMULGATION,
WAS SUBMITTED BY REFERENDUM TO PRODUCERS, THE VOTE RESULTING, AS
DETERMINED BY THE SECRETARY WITH THE APPROVAL OF THE PRESIDENT, IN
ACCEPTANCE OF THE ORDER BY AT LEAST TWO-THIRDS OF THOSE PRODUCERS WHO
DURING A REPRESENTATIVE PERIOD HAD BEEN ENGAGED IN PRODUCTION OF MILK
FOR THE MARKETING AREA.  THE SECRETARY HAD FOUND THAT TWO-THIRDS OF THE
MILK COMES TO THIS AREA FROM OTHER STATES WHERE IT IS PRODUCED, OR FROM
THE STATE OF NEW YORK THROUGH OTHER STATES, AND THAT THE OTHER ONE
THIRD, PRODUCED IN NEW YORK, BECOMES "PHYSICALLY AND INEXTRICABLY
INTERMINGLED" WITH THIS "INTERSTATE" MILK; AND THAT ALL IS HANDLED
EITHER IN THE CURRENT OF INTERSTATE COMMERCE OR SO AS TO AFFECT, BURDEN
AND OBSTRUCT INTERSTATE COMMERCE IN MILK AND ITS PRODUCTS.  THE
SECRETARY HAD DETERMINED ALSO THAT PRICES CALCULATED TO GIVE MILK A
PURCHASING POWER FOR PRODUCERS EQUIVALENT TO THAT ENJOYED IN THE BASE
PERIODS SELECTED BY SECS. 2 AND 8E OF THE ACT WOULD NOT BE REASONABLE,
IN VIEW OF PRICES FOR FEED AND "OTHER ECONOMIC CONDITIONS," AND
RESORTED TO THE AUTHORITY GRANTED BY SEC. 8C (18), TO FIX PRICES SO AS
TO "REFLECT" THOSE FACTORS AND "INSURE A SUFFICIENT QUANTITY OF PURE
AND WHOLESOME MILK AND BE IN THE PUBLIC INTEREST."  THE ORDER PROVIDES
A METHOD FOR COMPUTING "MINIMUM PRICES" OR VALUES FOR THE MILK RECEIVED
BY "HANDLERS" DURING THE COMPUTATION PERIOD, VARYING ACCORDING TO THE
CLASS OF USE TO WHICH THE MILK IS PUT, THE BUTTER-FAT CONTENT, DISTANCE
OF TRANSPORTATION, ETC.  IT THEN PROVIDES FOR FIXING THE "UNIFORM
PRICE" WHICH PRODUCERS ARE ACTUALLY PAID BY THE PROPRIETARY (NON
COOPERATIVE) "HANDLERS," AND WHICH IN SUBSTANCE IS DETERMINED BY
MULTIPLYING THE AMOUNT OF MILK OF EACH CLASS RECEIVED BY ALL "HANDLERS"
DURING THE PERIOD, LESS CERTAIN DEDUCTIONS, BY THE RESPECTIVE "MINIMUM
PRICE," MAKING CERTAIN DEDUCTIONS, AND DIVIDING THE TOTAL OF THE
REMAINDERS BY THE TOTAL AMOUNT OF THE MILK RECEIVED.  FOR THE PURPOSE
OF EQUALIZATION, THE ORDER REQUIRES "HANDLERS" TO PAY INTO A "PRODUCER
SETTLEMENT FUND" THE AMOUNT BY WHICH THEIR PURCHASES AT THE "MINIMUM
PRICES" EXCEEDS THE AMOUNT OF THEIR PURCHASED MILK MULTIPLIED BY THE
"UNIFORM PRICE."  WHEN THE VALUE OF A "HANDLER'S" PURCHASED MILK AT THE
"MINIMUM PRICES" IS LESS THAN IF BOUGHT AT THE "UNIFORM PRICE," THE
FUND PAYS HIM THE DIFFERENCE FOR DISTRIBUTION TO HIS PRODUCERS.  BY THE
TERMS OF THE ORDER, COOPERATIVE ASSOCIATIONS OF PRODUCERS WHICH ARE
ALSO "HANDLERS" NEED NOT PAY THE "UNIFORM PRICE," BUT MAY SETTLE WITH
THEIR PATRONS ACCORDING TO THEIR CONTRACTS.  THE ORDER BY THESE AND
OTHER MEANS SOUGHT TO BRING ABOUT A FAIR DIVISION AMONG PRODUCERS OF
THE FLUID MILK MARKET AND UTILIZATION OF THE REST OF THE SUPPLY IN
OTHER DAIRY STAPLES AND THUS TO CORRECT EVILS ARISING FROM OVER
PRODUCTION OF THE FLUID MILK, PRICE-CUTTING, ETC.  CF., NEBBIA V. N.Y.,
291 U.S. 502.  IN A SUIT BY THE GOVERNMENT TO ENFORCE THE ORDER AGAINST
A PROPRIETARY PRODUCER OF MILK AND COOPERATIVE ASSOCIATIONS OF
PRODUCERS, IN WHICH OTHER COOPERATIVE PRODUCERS INTERVENED ON THE SIDE
OF THE PLAINTIFF, THE DISTRICT COURT ADJUDGED THE ORDER INVALID AND
DISMISSED THE BILL.  HELD: 

1.  SUSPENSION OF THE ORDER BY THE SECRETARY, UNDER SEC. 8C (16)(A)
OF THE ACT, BECAUSE OF THE EFFECT OF THE DECREE ON ITS ADMINISTRATION
AND ENFORCEMENT, DID NOT RENDER THE PROCEEDINGS MOOT, SINCE RIGHTS
ACCRUED UNDER THE ORDER WERE PRESERVED AND REPORTS, ACCOUNTINGS AND
PAYMENTS UNDER IT WERE SOUGHT FROM THE DEFENDANTS.  P. 555. 

2. CONTENTIONS THAT THE ADOPTION OF THE ORDER WAS INFLUENCED BY FALSE
REPRESENTATIONS AND COERCIVE TACTICS PRACTICED BY CERTAIN COOPERATIVE
ASSOCIATIONS, WHICH INTERVENED IN THIS CASE, ARE IMMATERIAL, AS THERE
IS NO AUTHORITY IN THE COURTS TO GO BEHIND THE CONCLUSION OF THE
SECRETARY TO INQUIRE INTO THE INFLUENCES WHICH CAUSED THE PRODUCERS TO
FAVOR THE RESOLUTION.  P. 556. 

3.  THE PROVISION OF THE ACT, SEC. 8(12), AUTHORIZING COOPERATIVES TO
EXPRESS THEIR APPROVAL OR DISAPPROVAL OF SUCH ORDERS FOR ALL THEIR
MEMBERS OR PATRONS, IS NOT UNREASONABLE.  P. 559. 

4.  IF THE ORDER AND ACT ARE OTHERWISE VALID, THE FACT THAT THEIR
EFFECT WOULD BE TO GIVE COOPERATIVES A MONOPOLY OF THE MARKET, WOULD
NOT VIOLATE THE SHERMAN ACT OR JUSTIFY A REFUSAL OF AN INJUNCTION
ENFORCING THE ORDER.  P. 560. 

5.  THE OBJECTION THAT THE ACT DOES NOT AUTHORIZE THE PROVISION OF
THE ORDER EXEMPTING COOPERATIVES FROM PAYMENT OF "UNIFORM PRICES"
REQUIRED TO BE PAID BY PROPRIETARY "HANDLERS" CAN NOT BE TAKEN BY
DEFENDANTS WHO ARE THEMSELVES COOPERATIVES, BUT CAN BE TAKEN BY A
DEFENDANT PROPRIETARY.  P. 560. 

6.  THIS EXEMPTION OF COOPERATIVES IS AUTHORIZED BY SEC. 8C (F) OF
THE ACT, WHICH PROVIDES THAT "NOTHING  ...  SHALL  ...  PREVENT A
COOPERATIVE  ...  FROM  ...  MAKING DISTRIBUTION (OF NET PROCEEDS)  ...
IN ACCORDANCE WITH THE CONTRACT BETWEEN THE ASSOCIATION AND ITS
PRODUCERS."  P. 561. 

7.  THE OBJECTION THAT, IN AUTHORIZING PAYMENTS TO COOPERATIVES AND
CERTAIN OTHER "HANDLERS" FROM THE PRODUCER SETTLEMENT FUND, THE ORDER
IS WITHOUT STATUTORY BASIS CAN NOT BE RAISED BY "HANDLERS," WHETHER
PROPRIETARY OR COOPERATIVE, SINCE "HANDLERS" HAVE NO FINANCIAL INTEREST
IN THAT FUND.  P. 561. 

8.  SECTION 8C (5) OF THE ACT, IN SANCTIONING EXEMPTIONS OF PRODUCER
COOPERATIVE ASSOCIATIONS FROM THE DUTY IMPOSED BY THE ORDER ON OTHER
"HANDLERS," OF PAYING A UNIFORM PRICE TO PRODUCERS, IS NOT
UNCONSTITUTIONALLY DISCRIMINATIVE.  P. 562. 

THIS RESULTS FROM THE NATURE OF COOPERATIVES, THE POLICY OF CONGRESS
IN THEIR REGARD, THEIR RELATIONS TO THEIR MEMBERS AND TO PRICE-CUTTING,
AS COMPARED WITH ORDINARY BUSINESS CORPORATIONS. 

9.  NO UNCONSTITUTIONAL DISCRIMINATION IS PRODUCED BY PROVISIONS OF
THE ORDER, SANCTIONED BY THE ACT, WHICH LIMIT MINIMUM PRICES TO MILK
SOLD IN THE MARKETING AREA OR WHICH PASSES THROUGH A PLANT IN THE
MARKETING AREA, THEREBY PERMITTING "HANDLERS" TO PURCHASE OTHER MILK
FROM THE SAME PRODUCTION AREA AT ANY PRICE THEY MAY PLEASE.  P. 565. 

IF SUCH "UNPRICED" MILK BE SOLD BY THE "HANDLER" OUTSIDE OF THE
MARKET AREA DESIGNATED BY THE ORDER FOR A PRICE GREATER THAN CAN BE
OBTAINED WITHIN THE AREA, THUS ENABLING THE "HANDLER" TO REPLACE LOSSES
ON SALES WITHIN THE AREA AND STILL BE IN A POSITION TO PAY THE "UNIFORM
PRICE" FOR MILK SUPPLIED TO THE AREA, - THIS IS A COMPETITIVE SITUATION
WHICH THE ORDER DID NOT CREATE AND WITH WHICH IT DOES NOT DEAL. 

10.  SPECIAL DIFFERENTIALS ON MILK COMING FROM CERTAIN COUNTIES
LOCATED MOST FAVORABLY TO THE MARKETING AREA, ALLOWED BY THE ORDER
UNDER SEC. 8C (5)(A) OF THE ACT, ARE NOT SHOWN TO DISCRIMINATE UNDULY
BETWEEN PRODUCERS.  THE SECRETARY'S DETERMINATION OF THEIR PROPRIETY,
MADE ON SUBSTANTIAL EVIDENCE, IS SUPPORTED BY A STRONG PRESUMPTION.  P.
567. 

11.  WHERE MILK SOLD BY THE DAIRY FARMER LOCALLY AND MILK FROM OTHER
STATES ARE DRAWN INTO A GENERAL PLAN FOR PROTECTING THE INTERSTATE
COMMERCE IN THE COMMODITY FROM THE INTERFERENCES, BURDENS AND
OBSTRUCTIONS ARISING FROM EXCESSIVE SURPLUS AND THE SOCIAL AND SANITARY
EVILS CREATED BY LOW PRICES, THE POWER OF CONGRESS EXTENDS ALSO TO THE
LOCAL SALES.  P. 568. 

12.  THE FEDERAL COMMERCE POWER, WHERE IT EXISTS, IS COMPLETE AND
PERFECT.  P. 569. 

13. CONGRESS HAS POWER OVER THE PRICES OF MILK IN INTERSTATE COMMERCE
OF THE SAME NATURE AND EXTENT AS THE POWER RETAINED BY THE STATES OVER
THEIR INTERNAL COMMERCE IN MILK.  NEBBIA V. NEW YORK, 291 U.S. 502.  P.
569. 

14.  THE PROVISIONS OF THE ACT AND THE ORDER WHICH REQUIRE A
"HANDLER" WHOSE PURCHASES AT THE "MINIMUM PRICE" EXCEED THEIR VALUE AT
THE "UNIFORM PRICE" TO PAY THE SURPLUS INTO THE PRODUCER SETTLEMENT
FUND, INSTEAD OF PAYING IT TO HIS PATRONS, DO NOT DEPRIVE HIM OF
LIBERTY AND PROPERTY WITHOUT DUE PROCESS.  P. 571. 

THIS POOLING DEVICE IS ANCILLARY TO THE PRICE REGULATION; BOTH ARE
DESIGNED TO FOSTER AND PROTECT INTERSTATE COMMERCE BY SMOOTHING OUT THE
DIFFICULTIES OF MILK SURPLUS AND CUT-THROAT COMPETITION WHICH BURDENED
THE MARKETING.  P. 572. 

AS CONGRESS WOULD HAVE THE RIGHT TO LIMIT THE QUANTITIES OF MILK IN
INTERSTATE COMMERCE, IT MAY PERMIT ITS MOVEMENT ON THESE TERMS OF POOL
SETTLEMENT. 

15.  THE ACT DECLARES A DEFINITE POLICY TO RESTORE PARITY PRICES FOR
FARMERS; DIRECTS THE SECRETARY TO ISSUE ORDERS TO THAT END WHENEVER HE
HAS REASON TO BELIEVE THEY WILL TEND TO EFFECTUATE THAT POLICY; LIMITS
THE TERMS OF SUCH ORDERS SPECIFICALLY, WHILE ALLOWING FLEXIBLE
AUXILIARY ADMINISTRATIVE DISCRETION; CONFINES ITS APPLICATION TO
SPECIFIED FARM PRODUCTS AND THE ORDERS TO SUCH AREAS AS ARE
"PRACTICABLE"; AND REQUIRES PRELIMINARY HEARINGS AND FINDINGS, WITH
RIGHT TO OBJECT TO THE SECRETARY AND APPEAL TO THE COURTS.  IN THESE
RESPECTS IT SETS UP SUFFICIENT STANDARDS AND DOES NOT DELEGATE
LEGISLATIVE POWER IN VIOLATION OF THE CONSTITUTION.  P. 574. 

EVEN THOUGH PROCEDURAL SAFEGUARDS IN THE ACT CAN NOT VALIDATE AN
UNCONSTITUTIONAL DELEGATION, THEY DO PROTECT AGAINST ARBITRARY ABUSE OF
PROPERLY DELEGATED AUTHORITY.  P. 576. 

16.  SECTION 8C (18) OF THE ACT, WHICH PROVIDES THAT WHENEVER HE
FINDS UPON HEARING AND EVIDENCE THAT PRICES GIVING MILK AND MILK
PRODUCTS PURCHASING POWER EQUIVALENT TO THAT OF THE "BASE PERIOD,"
DEFINED IN SECS. 2 AND 8E, ARE NOT REASONABLE, IN VIEW OF THE PRICE AND
AVAILABLE SUPPLIES OF FEEDS, AND OTHER ECONOMIC CONDITIONS WHICH AFFECT
MARKET SUPPLY AND DEMAND FOR MILK AND ITS PRODUCTS IN THE MARKETING
AREA, THE SECRETARY SHALL FIX SUCH PRICES AS HE FINDS "WILL REFLECT
SUCH FACTORS AND INSURE A SUFFICIENT QUANTITY OF PURE AND WHOLESOME
MILK AND BE IN THE PUBLIC INTEREST," - SETS UP A STANDARD SUFFICIENT TO
AVOID IMPROPER DELEGATION OF POWER.  P. 576. 

17.  THE PROVISIONS OF THE ACT FOR SUBMISSION OF PROPOSED ORDERS FOR
APPROVAL OF PRODUCERS OF MILK, THROUGH A REFERENDUM, SEC. 8C (9)(B),
AND THE PROVISION AUTHORIZING COOPERATIVES TO CAST THE VOTES OF THEIR
PRODUCER PATRONS, ARE NOT INVALID DELEGATION.  P. 577. 

18.  SECTIONS 8C (5)(A), 8C (5)(C) AND 8C (5)(F), CONSTRUED TOGETHER,
AND WITH SEC. 8C (1), SHOW THAT THERE WAS NO INTENTION TO EXCEPT
COOPERATIVES OF THE AGENCY TYPE (DISTINGUISHED FROM THE "SALE" TYPE)
FROM THE DUTY IMPOSED ON HANDLERS GENERALLY TO PAY INTO THE PRODUCER
SETTLEMENT FUND AND SHARE THE EXPENSES OF ADMINISTRATION.  THE TERM
"PURCHASED" IN SEC. 8C (5)(A) MEANS "ACQUIRED FOR MARKETING"; THE
PROPRIETARY, FROM THE REQUIREMENT TO ACCOUNT AT THE MINIMUM PRICES FOR
MILK HANDLED.  P. 578. 

THIS CONCLUSION ACCORDS WITH THE LEGISLATIVE REPORTS AND DEBATES AND
ADMINISTRATIVE CONSTRUCTION. 

19.  THE PROVISIONS OF THE ACT, SEC. 8C (5)(F), PERMITTING A
COOPERATIVE TO DISTRIBUTE THE "NET PROCEEDS" OF ALL ITS SALES TO ITS
MEMBERS IN ACCORDANCE WITH ITS CONTRACT WITH THEM, REFERS TO THE
RESULTS OF THE COOPERATIVE'S SALES IN THE MARKETING AREA AFTER
COMPLYING WITH THE EQUALIZATION REQUIREMENTS.  P. 579. 

20.  A PROVISION OF THE ORDER AUTHORIZING ANY "HANDLER," IN
DETERMINING ITS NET POOL OBLIGATION, TO SUBTRACT "THE QUANTITY OF MILK
RECEIVED FROM THE "HANDLER'S OWN FARM," DOES NOT APPLY TO A COOPERATIVE
"HANDLER" WHICH HAS NO FARM.  P. 581. 

UNITED STATES V. ROCK ROYAL CO-OPERATIVE, INC. ET AL.* 

*TOGETHER WITH NO. 826, NOYES, COMMISSIONER OF AGRICULTURE AND
MARKETS OF THE STATE OF NEW YORK, V. ROCK ROYAL CO-OPERATIVE, INC. ET
AL.; NO. 827, DAIRYMEN'S LEAGUE COOPERATIVE ASSN., INC. V. ROCK ROYAL
CO-OPERATIVE, INC. ET AL.; AND NO. 828, METROPOLITAN COOPERATIVE MILK
PRODUCERS BARGAINING AGENCY, INC. V. ROCK ROYAL CO-OPERATIVE, INC. ET
AL., ALSO ON APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF NEW YORK. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF NEW YORK. 

APPEALS UNDER SEC. 2 OF THE JURISDICTIONAL ACT OF AUGUST 24, 1937,
FROM A DECREE OF THE DISTRICT COURT DISMISSING TWO SUITS BROUGHT BY THE
GOVERNMENT TO ENFORCE AN ORDER OF THE SECRETARY OF AGRICULTURE, ISSUED
UNDER THE AGRICULTURAL MARKETING AGREEMENT ACT OF JUNE 3, 1937,
REGULATING THE HANDLING OF MILK IN AN AREA COMPRISING THE CITY OF NEW
YORK AND NEIGHBORING COUNTIES.  ONE OF THE SUITS WAS AGAINST THREE
INCORPORATED "COOPERATIVES," REPRESENTING MILK PRODUCERS, IN THE
HANDLING OF MILK IN THIS AREA.  THE DEFENDANT CORPORATION IN THE OTHER
SUIT WAS A "PROPRIETARY" HANDLER.  ONE OF THE APPELLANTS IS NOYES,
COMMISSIONER OF AGRICULTURE AND MARKETS OF THE CITY OF NEW YORK, WHO
INTERVENED AND PETITIONED, AMONG OTHER THINGS, FOR ENFORCEMENT OF A
REGULATION UNDER THE STATE LAW, IN SO FAR AS THE TRAFFIC IN QUESTION
MIGHT BE ADJUDGED TO BE INTRASTATE COMMERCE.  INASMUCH AS THE
OPERATIONS OF ALL OF THE DEFENDANTS ARE FOUND TO BE OF INTERSTATE
CHARACTER, THE COURT RULES THAT HIS PETITION BE DISMISSED.  THE OTHER
THREE APPEALS ARE BY THE UNITED STATES AND BY TWO INCORPORATED
"COOPERATIVES," WHICH INTERVENED TO COMBAT CHARGES MADE AGAINST THEM BY
THE DEFENDANTS, CONCERNING THEIR ACTIVITIES IN AID OF THE ADOPTION AND
ENFORCEMENT OF THE FEDERAL ORDER. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS INVOLVE THE VALIDITY OF ORDER NO. 27 OF THE SECRETARY
OF AGRICULTURE, ISSUED UNDER THE AGRICULTURAL MARKETING AGREEMENT ACT
OF 1937,  FN1  REGULATING THE HANDLING OF MILK IN THE NEW YORK
METROPOLITAN AREA. 

ON OCTOBER 27, 1938, THE UNITED STATES OF AMERICA FILED A COMPLAINT
AGAINST THE ROCK ROYAL CO-OPERATIVE, INC., THE CENTRAL NEW YORK
COOPERATIVE ASSOCIATION, INC., AND SCHUYLER JUNCTION NEW YORK MILK SHED
COOPERATIVE, INC., SEEKING A MANDATORY INJUNCTION REQUIRING THE
DEFENDANTS AND THEIR REPRESENTATIVES TO COMPLY WITH THE PROVISIONS OF
THE ORDER.  ON NOVEMBER 26, 1938, A SIMILAR ACTION WAS FILED IN THE
SAME COURT AGAINST THE JETTER DAIRY COMPANY, INC. ON DECEMBER 2 THESE
CAUSES WERE CONSOLIDATED.  THE ORIGINAL PROCEEDINGS HAD SOUGHT RELIEF
NOT ONLY FOR VIOLATIONS OF THE ORDER OF THE SECRETARY OF AGRICULTURE
BUT ALSO, IF THE COURT SHOULD FIND THAT THE DEFENDANTS OR ANY OF THEM
WERE NOT SUBJECT TO THAT ORDER, FOR VIOLATION OF OFFICIAL ORDER NO. 126
ISSUED BY THE COMMISSIONER OF AGRICULTURE AND MARKETS OF THE STATE OF
NEW YORK.  THE TWO ORDERS ARE IN PARI MATERIA, ONE COVERING MILK MOVING
IN OR DIRECTLY BURDENING, OBSTRUCTING OR AFFECTING INTERSTATE COMMERCE
AND THE OTHER  FN2  COVERING MILK IN INTRASTATE COMMERCE.  EACH
DEFENDANT IS A DEALER HANDLING MILK MOVING IN INTERSTATE COMMERCE.  ON
DECEMBER 15, HOLTON V. NOYES, AS COMMISSIONER OF AGRICULTURE AND
MARKETS OF THE STATE OF NEW YORK, WAS PERMITTED TO INTERVENE AS A PARTY
PLAINTIFF IN THE CONSOLIDATED ACTION.  HE SOUGHT AN INJUNCTION
COMMANDING THE DEFENDANTS AND THEIR REPRESENTATIVES TO COMPLY WITH
ORDER NO. 126 OR, SHOULD IT BE DETERMINED THAT THEIR MILK WAS NOT
SUBJECT TO THIS ORDER, TO COMPLY WITH THE ORDER OF THE SECRETARY OF
AGRICULTURE. 

IN THEIR ANSWERS, THE DEFENDANTS PLEADED CERTAIN AFFIRMATIVE
DEFENSES, SETTING UP THE INVALIDITY OF ORDER NO. 27 BECAUSE OF IMPROPER
EFFORTS TO SECURE ITS ADOPTION.  BROADLY SPEAKING, THESE DEFENSES WERE
BASED UPON ERRONEOUS REPRESENTATIONS ALLEGED TO HAVE BEEN MADE BY
OFFICIALS AND BY CERTAIN PRIVATE ORGANIZATIONS TO BRING ABOUT THE
APPROVAL OF THE ORDER AND UPON AN ALLEGED CONSPIRACY OF THE SAME
PRIVATE ORGANIZATIONS TO CREATE A MONOPOLY BY MEANS OF THE ORDER.  THE
MOTION TO STRIKE THESE DEFENSES HAVING BEEN OVERRULED, THE DAIRYMEN'S
LEAGUE COOPERATIVE ASSOCIATION, HEREINAFTER CALLED THE LEAGUE, AND THE
METROPOLITAN COOPERATIVE MILK PRODUCERS BARGAINING AGENCY, INC.,
HEREINAFTER CALLED THE AGENCY, WERE PERMITTED TO INTERVENE TO COMBAT
THEM. 

THE ANSWERS ALSO CHALLENGED THE TWO ORDERS AND THE ACT AS CONTRARY TO
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION AND THE ACT AS
INVOLVING IMPROPER DELEGATION OF LEGISLATIVE POWER.  THE CENTRAL NEW
YORK COOPERATIVE ASSOCIATION DENIED THE POWER OF THE CONGRESS TO ENACT
THE LEGISLATION UNDER THE COMMERCE CLAUSE AND SET UP AS A FURTHER
DEFENSE THAT IT WAS NOT SUBJECT TO EITHER ORDER. 

AFTER A HEARING UPON THE MERITS, THE DISTRICT COURT DISMISSED THE
COMPLAINTS.  THE STATE ORDER WAS ELIMINATED FROM CONSIDERATION ON THE
UNDERSTANDING, NOT QUESTIONED HERE, THAT THE MILK OF ALL FOUR
DEFENDANTS IS COVERED BY THE FEDERAL ORDER, IF VALID.  IT WAS FURTHER
HELD THAT SECS. 8C (5)(B)(II) AND 8C (5)(F) OF THE ACT VIOLATE THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT, THAT THE ORDER IS DISCRIMINATORY
AND TAKES PROPERTY WITHOUT COMPENSATION, THAT APPROVAL OF THE PRODUCERS
WAS SECURED BY UNLAWFUL MISREPRESENTATION AND COERCION AND THAT
IMPORTANT PROVISIONS OF THE ORDER, AUTHORIZING PAYMENTS TO COOPERATIVE
AND PROPRIETARY HANDLERS, HAVE NO BASIS IN THE ACT.  UNITED STATES V.
ROCK ROYAL CO-OPERATIVE, 26 F.SUPP.  534, 548, 550, 544, 545, 553.  AS
THE UNCONSTITUTIONALITY OF CERTAIN SECTIONS OF AN ACT OF CONGRESS WAS
ONE GROUND OF THE DECISION AN APPEAL WAS ALLOWED DIRECTLY TO THIS
COURT.  FN3 

THE STATUTE.  FN4  THE CONTROVERSY REVOLVES ALMOST ENTIRELY AROUND
ORDER NO. 27.  BACK OF THE ORDER IS THE STATUTE UNDER WHICH IT WAS
ISSUED, THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937, WHICH
REENACTED AND AMENDED CERTAIN PROVISIONS OF THE AGRICULTURAL ADJUSTMENT
ACT.  FN5  AS ITS NAME IMPLIES, IT WAS AIMED AT ASSISTING IN THE
MARKETING OF AGRICULTURAL COMMODITIES. 

BY SEC. 1 IT IS DECLARED THAT "THE DISRUPTION OF THE ORDERLY EXCHANGE
OF COMMODITIES IN INTERSTATE COMMERCE IMPAIRS THE PURCHASING POWER OF
FARMERS" THUS DESTROYING THE VALUE OF AGRICULTURAL ASSETS TO THE
DETRIMENT OF THE NATIONAL PUBLIC INTEREST.  THIS INTERFERENCE IS
DECLARED TO "BURDEN AND OBSTRUCT THE NORMAL CHANNELS OF INTERSTATE
COMMERCE." 

BY SEC. 2 IT IS DECLARED TO BE THE POLICY OF CONGRESS, THROUGH THE
EXERCISE OF THE POWERS CONFERRED UPON THE SECRETARY OF AGRICULTURE, "TO
ESTABLISH AND MAINTAIN SUCH ORDERLY MARKETING CONDITIONS FOR
AGRICULTURAL COMMODITIES IN INTERSTATE COMMERCE AS WILL ESTABLISH
PRICES TO FARMERS AT A LEVEL THAT WILL GIVE AGRICULTURAL COMMODITIES A
PURCHASING POWER WITH RESPECT TO ARTICLES THAT FARMERS BUY, EQUIVALENT
TO THE PURCHASING POWER OF AGRICULTURAL COMMODITIES IN THE BASE
PERIOD.  ...  " 

UNDER SEC. 2 OF THE ACT, THE BASE PERIOD FOR AGRICULTURAL
COMMODITIES, EXCEPT TOBACCO AND POTATOES, IS FIXED AT THE PRE-WAR
PERIOD OF AUGUST, 1909, TO JULY, 1914.  WHERE THE PURCHASING POWER
DURING THE BASE PERIOD CANNOT BE SATISFACTORILY DETERMINED FROM
AVAILABLE STATISTICS WITHIN THE DEPARTMENT OF AGRICULTURE, THE
SECRETARY IS AUTHORIZED TO TAKE AS THE BASE PERIOD FROM AUGUST, 1919,
TO JULY, 1929, OR A PORTION THEREOF.  SEC. 8E.  IN PRESCRIBING MINIMUM
PRICES FOR MILK THE STATUTE AUTHORIZES THE SECRETARY TO FIX MINIMUM
PRICES WITHOUT RESTRICTION TO THE PURCHASING POWER DURING THE BASE
PERIOD SO AS TO REFLECT THE PRICES OF AVAILABLE SUPPLIES OF FEED AND
OTHER ECONOMIC CONDITIONS, IF HE FINDS AFTER A HEARING THAT MINIMUM
PRICES WITH A BASE PERIOD PURCHASING POWER ARE UNREASONABLE.  SEC. 8C
(18). 

UNITED STATES TO ENFORCE AND TO PREVENT AND RESTRAIN ANY PERSON FROM
VIOLATING ANY OF THE ORDERS, REGULATIONS OR AGREEMENTS UNDER ITS
PROVISIONS. 

MARKETING AGREEMENTS WITH THE PRODUCERS AND OTHERS ENGAGED IN THE
HANDLING OF AGRICULTURAL COMMODITIES IN OR AFFECTING INTERSTATE
COMMERCE.  THESE AGREEMENTS MAY BE FOR ALL AGRICULTURAL COMMODITIES AND
THEIR PRODUCTS, ARE ENTIRELY VOLUNTARY AND MAY COVER THE HANDLING OF
THE COMMODITY BY ANY PERSON ENGAGED IN THE VARIOUS OPERATIONS OF
PROCESSING OR DISTRIBUTION.  AGREEMENTS ARE INVOLVED ONLY INCIDENTALLY
IN THIS PROCEEDING. 

CERTAIN SITUATIONS.  THESE ORDERS APPLY ONLY TO SPECIFIED COMMODITIES,
INCLUDING MILK.  FN6  THEY ARE TO BE ENTERED ONLY WHEN THE SECRETARY OF
AGRICULTURE HAS REASON TO BELIEVE THAT THE ISSUANCE OF AN ORDER WILL
TEND TO EFFECTUATE THE DECLARED POLICY OF THE ACT WITH RESPECT TO ANY
COMMODITY OR PRODUCT THEREOF, AND AFTER NOTICE AND AN OPPORTUNITY FOR
HEARING.  IT IS NECESSARY ALSO FOR THE SECRETARY OF AGRICULTURE TO SET
FORTH IN SUCH ORDER A FINDING UPON THE EVIDENCE INTRODUCED AT THE
HEARING THAT THE ISSUANCE OF THE ORDER AND THE TERMS AND CONDITIONS
THEREOF WILL TEND TO EFFECTUATE THE DECLARED POLICY.  FN7  WHEN, AS
HERE, THE COMMODITY IS MILK, THE ACT REQUIRES  FN8  THAT THE ORDER
CONTAIN ONE OR MORE OF TERMS SPECIFIED IN SEC. 8C (5) AND NO OTHERS,
EXCEPT CERTAIN TERMS COMMON TO ALL ORDERS AND SET OUT IN SEC. 8C (7). 
THESE TERMS, AS USED IN THE ORDER UNDER EXAMINATION, WILL BE REFERRED
TO LATER.  ORDERS MAY ONLY BE ISSUED  FN9  AFTER HEARING UPON A
MARKETING AGREEMENT WHICH REGULATES THE HANDLING OF THE COMMODITY IN
THE SAME MANNER AS THE ORDER.  WITHOUT SPECIAL DETERMINATION OF THE
SECRETARY OF AGRICULTURE AND APPROVAL OF THE PRESIDENT, ORDERS ARE NOT
TO BECOME EFFECTIVE UNLESS APPROVED BY HANDLERS AS REQUIRED BY THE
ACT.  FN10 

NOTWITHSTANDING THE REFUSAL OR FAILURE OF HANDLERS TO SIGN A
MARKETING AGREEMENT RELATING TO SUCH COMMODITY, THE SECRETARY OF
AGRICULTURE, WITH THE APPROVAL OF THE PRESIDENT, MAY ISSUE AN ORDER
WITHOUT THE ADOPTION OF AN AGREEMENT IF HE DETERMINES THAT THE REFUSAL
OR FAILURE OF THE HANDLERS TO SIGN A MARKETING AGREEMENT TENDS TO
PREVENT THE EFFECTUATION OF THE DECLARED POLICY WITH RESPECT TO THE
COMMODITY AND THAT THE ISSUANCE OF THE ORDER IS THE ONLY PRACTICAL
MEANS OF ADVANCING THE INTEREST OF THE PRODUCERS.  IN SUCH A CASE THE
ORDER MUST BE APPROVED OR FAVORED BY TWO-THIRDS OF THE PRODUCERS IN
NUMBER OR VOLUME WHO HAVE BEEN ENGAGED, DURING A REPRESENTATIVE PERIOD,
IN THE PRODUCTION FOR MARKET OF THE COMMODITY WITHIN THE PRODUCTION
AREA OR TWO-THIRDS OF THOSE ENGAGED IN THE PRODUCTION OF THE COMMODITY
FOR SALE IN THE MARKETING AREA SPECIFIED IN THE MARKETING AGREEMENT OR
ORDER.  SEC. 8C (9).  SECTION 8C (19) AUTHORIZES A REFERENDUM TO
DETERMINE WHETHER THE ISSUANCE OF THE ORDER IS APPROVED BY THE
PRODUCERS.  SECTION 8C (12) PROVIDES THAT THE SECRETARY SHALL CONSIDER
THE APPROVAL OR DISAPPROVAL BY ANY COOPERATIVE ASSOCIATION AS THE
APPROVAL OR DISAPPROVAL OF THE PRODUCERS WHO ARE MEMBERS, STOCKHOLDERS
OR PATRONS OF THE COOPERATIVE ASSOCIATION. 

ON PETITION OF A HANDLER OBJECTING TO ANY PROVISION AS NOT IN
ACCORDANCE WITH LAW AND SEEKING A MODIFICATION OR EXEMPTION THEREFROM. 
BY (15)(B) THE DISTRICT COURTS HAVE JURISDICTION TO REVIEW SUCH
RULING. 

THE PROBLEM.  - IN ACCORDANCE WITH THE PROVISIONS OF THE ACT THE
SECRETARY OF AGRICULTURE, BEFORE PROMULGATING ORDER NO. 27, CONDUCTED
PUBLIC HEARINGS ATTENDED BY HANDLERS, PRODUCERS AND CONSUMERS OF MILK
AND THEIR REPRESENTATIVES THROUGHOUT THE MILKSHED.  NO DEFENDANT,
HOWEVER, WAS REPRESENTED.  THESE HEARINGS FOLLOWED THE PRESENTATION BY
THE AGENCY TO THE SECRETARY AND TO THE COMMISSIONER OF A PROPOSED
MARKETING AGREEMENT AND ORDER REGULATING THE HANDLING OF MILK IN THE
NEW YORK MARKETING AREA WITH A REQUEST FOR ACTION UNDER THE FEDERAL AND
NEW YORK STATUTES.  THE HEARINGS WERE JOINTLY HELD BY THE FEDERAL AND
STATE GOVERNMENTS.  THE COOPERATION OF THE TWO GOVERNMENTS WAS THE
CULMINATION OF A COURSE OF INVESTIGATION AND LEGISLATION WHICH HAD
CONTINUED OVER MANY YEARS.  THE PROBLEM FROM THE STANDPOINT OF NEW YORK
WAS FULLY CONSIDERED AND THE RESULTS SET OUT IN THE REPORT OF 1933 OF
THE JOINT LEGISLATIVE COMMITTEE TO INVESTIGATE THE MILK INDUSTRY.  THIS
INVESTIGATION WAS FOLLOWED BY THE CREATION OF THE MILK CONTROL BOARD
WITH BROAD POWERS TO REGULATE THE DAIRY BUSINESS OF THE STATE.  THIS
BOARD HAD POWER TO FIX PRICES TO BE PAID TO PRODUCERS AND TO BE CHARGED
TO CONSUMERS.  FN11  A LATER NEW YORK ACT, THE ROGERS-ALLEN ACT, FN12
AUTHORIZED THE STATE COMMISSIONER TO COOPERATE WITH THE FEDERAL
AUTHORITIES ACTING UNDER THE PRESENT MARKETING AGREEMENT ACT, AND TO
ISSUE ORDERS SUPPLEMENTARY TO THOSE OF THE FEDERAL GOVERNMENT TO BE
CARRIED OUT UNDER JOINT ADMINISTRATION. 

THE PROBLEMS CONCERNED WITH THE MAINTENANCE AND DISTRIBUTION OF AN
ADEQUATE SUPPLY OF MILK IN METROPOLITAN CENTERS ARE WELL UNDERSTOOD BY
PRODUCERS AND HANDLERS.  IN THE MILKSHED AND MARKETING AREA OF
METROPOLITAN NEW YORK THESE PROBLEMS ARE PECULIARLY ACUTE.  FN13  IT IS
GENERALLY RECOGNIZED THAT THE CHIEF CAUSE OF FLUCTUATING PRICES AND
SUPPLIES IS THE EXISTENCE OF A NORMAL SURPLUS WHICH IS NECESSARY TO
FURNISH AN ADEQUATE AMOUNT FOR PEAK PERIODS OF CONSUMPTION.  THIS
RESULTS IN AN EXCESS OF PRODUCTION DURING THE TROUGHS OF DEMAND.  AS
MILK IS HIGHLY PERISHABLE, A FERTILE FIELD FOR THE GROWTH OF BACTERIA,
AND YET AN ESSENTIAL ITEM OF DIET, IT IS MOST DESIRABLE TO HAVE AN
ADEQUATE PRODUCTION UNDER CLOSE SANITARY SUPERVISION TO MEET THE
CONSTANTLY VARYING NEEDS.  THE SALE OF MILK IN METROPOLITAN NEW YORK IS
RINGED AROUND WITH REQUIREMENTS OF THE HEALTH DEPARTMENTS TO ASSURE THE
PURITY OF THE SUPPLY.  ONLY FARMS WITH EQUIPMENT APPROVED BY THE HEALTH
AUTHORITIES OF THE MARKETING AREA AND OPERATED IN ACCORDANCE WITH THEIR
REQUIREMENTS ARE PERMITTED TO MARKET THEIR MILK.  MORE THAN SIXTY
THOUSAND DAIRIES LOCATED IN THE STATES OF NEW YORK, CONNECTICUT,
MASSACHUSETTS, MARYLAND, NEW JERSEY, PENNSYLVANIA AND VERMONT HOLD
CERTIFICATES OF INSPECTION AND APPROVAL FROM THE DEPARTMENT OF HEALTH
OF THE CITY OF NEW YORK.  MORE THAN FIVE HUNDRED RECEIVING PLANTS
SIMILARLY SCATTERED HAVE BEEN APPROVED FOR THE RECEIVING AND SHIPPING
OF GRADES A AND B MILK.  SINCE ALL MILK PRODUCED CANNOT FIND A READY
MARKET AS FLUID MILK IN FLUSH PERIODS, THE SURPLUS MUST MOVE INTO
CREAM, BUTTER, CHEESE, MILK POWDER AND OTHER MORE OR LESS NONPERISHABLE
PRODUCTS.  SINCE THESE MANUFACTURES ARE IN COMPETITION WITH ALL SIMILAR
DAIRY PRODUCTS, THE PRICES FOR THE MILK ABSORBED INTO MANUFACTURING
PROCESSES MUST NECESSARILY MEET THE COMPETITION OF LOW-COST PRODUCTION
AREAS FAR REMOVED FROM THE METROPOLITAN CENTERS.  THE MARKET FOR FLUID
MILK FOR USE AS A FOOD BEVERAGE IS THE MOST PROFITABLE TO THE
PRODUCER.  CONSEQUENTLY, ALL PRODUCERS STRIVE FOR THE FLUID MILK
MARKET.  IT IS OBVIOUS THAT THE MARKETING OF FLUID MILK IN NEW YORK HAS
CONTACTS AT LEAST WITH THE ENTIRE NATIONAL DAIRY INDUSTRY.  THE
APPROVAL OF DAIRIES BY THE DEPARTMENT OF HEALTH OF NEW YORK CITY, AS A
CONDITION FOR THE SALE OF THEIR FLUID MILK IN THE METROPOLITAN AREA,
ISOLATES FROM THIS GENERAL COMPETITION A WELL RECOGNIZED SEGMENT OF THE
ENTIRE INDUSTRY.  SINCE THESE PRODUCERS ARE NUMEROUS ENOUGH TO KEEP UP
A VOLUME OF FLUID MILK FOR NEW YORK DISTRIBUTION BEYOND ORDINARY
REQUIREMENTS, CUT-THROAT COMPETITION EVEN AMONG THEM WOULD THREATEN THE
QUALITY AND IN THE END THE QUANTITY OF FLUID MILK DEEMED SUITABLE FOR
NEW YORK CONSUMPTION.  STUDENTS OF THE PROBLEM GENERALLY HAVE
APPARENTLY RECOGNIZED A FAIR DIVISION AMONG PRODUCERS OF THE FLUID MILK
MARKET AND UTILIZATION OF THE REST OF THE AVAILABLE SUPPLY IN OTHER
DAIRY STAPLES AS AN APPROPRIATE METHOD OF ATTACK FOR ITS SOLUTION. 
ORDER NO. 27 WAS AN ATTEMPT TO MAKE EFFECTIVE SUCH AN ARRANGEMENT UNDER
THE AUTHORITY OF THE AGRICULTURAL MARKETING AGREEMENT ACT. 

ORDER NO. 27.  FN14  THE SECRETARY OF AGRICULTURE FOUND THAT TWO
THIRDS OF THE MILK PRODUCED FOR THE NEW YORK MARKETING AREA ACTUALLY
MOVES IN INTERSTATE COMMERCE AND THAT THE REMAINING ONE-THIRD PRODUCED
WITHIN THE STATE OF NEW YORK WAS "PHYSICALLY AND INEXTRICABLY
INTERMINGLED" WITH THE INTERSTATE MILK; THAT ALL WAS HANDLED EITHER IN
THE CURRENT OF INTERSTATE COMMERCE OR SO AS TO AFFECT, BURDEN AND
OBSTRUCT SUCH INTERSTATE COMMERCE IN MILK AND ITS PRODUCTS.  AN
EXCEPTION WAS MADE AS TO MILK REGULATED BY THE ORDER OF THE
COMMISSIONER OF AGRICULTURE AND MARKETS OF THE STATE OF NEW YORK.  THE
SECRETARY FURTHER FOUND THAT PRICES CALCULATED IN ACCORDANCE WITH THE
AGRICULTURAL MARKETING AGREEMENT ACT OF 1937 TO GIVE THIS MILK A
PURCHASING POWER EQUIVALENT TO THE PARTIES MENTIONED IN SECS. 2 AND 8E
OF THAT ACT WERE NOT REASONABLE IN VIEW OF THE SUPPLIES AND PRICES OF
FEEDS AND OTHER ECONOMIC CONDITIONS WHICH AFFECT THE SUPPLY AND DEMAND
FOR MILK.  HE THEN FIXED A MINIMUM PRICE FOR MILK TO BE DETERMINED FROM
TIME TO TIME BY FORMULA. 

BY THE ORDER THE MARKETING AREA IS DEFINED AS THE CITY OF NEW YORK
AND THE COUNTIES OF NASSAU, SUFFOLK AND WESTCHESTER.  A PRODUCER IS ANY
PERSON PRODUCING MILK DELIVERED TO A HANDLER AT A PLANT APPROVED BY A
HEALTH AUTHORITY FOR THE RECEIVING OF MILK FOR SALE IN THE MARKETING
AREA.  A HANDLER IS A PERSON ENGAGED IN THE HANDLING OF MILK OR CREAM
RECEIVED AT AN APPROVED PLANT FOR SIMILAR SALE.  "HANDLER" INCLUDES
COOPERATIVE ASSOCIATIONS.  THE ADMINISTRATIVE SECTIONS OF THE ORDER
SETTING UP A MILK ADMINISTRATOR AND DEFINING HIS DUTIES ARE NOT
ATTACKED.  NOR ARE THOSE WHICH CLASSIFY MILK. 

ARTICLE IV IS IMPORTANT SINCE IT ESTABLISHES MINIMUM PRICES FOR
MILK.  THERE ARE VARIOUS DIFFERENTIALS BASED UPON USE, BUTTER FAT
CONTENT, AND DISTANCES BETWEEN THE POINTS OF PRODUCTION AND CONSUMPTION
WHICH IT IS UNNECESSARY TO ANALYZE.  FOR THE PURPOSES OF THIS OPINION
IT IS SUFFICIENT TO SAY, AS AN EXAMPLE, THAT THE MINIMUM PRICE EACH
HANDLER SHOULD PAY FOR MILK IS FIXED BY A FORMULA WHICH VARIES WITH THE
BUTTER-PRICE RANGE FOR 92-SCORE BUTTER AT WHOLESALE IN THE NEW YORK
MARKET DURING THE 60 DAYS PRECEDING THE 25TH DAY OF THE PRECEDING
MONTH.  THE HANDLERS ARE REQUIRED TO FILE REPORTS AS TO THEIR RECEIPTS
AND UTILIZATION OF MILK OF THE VARIOUS CLASSES.  IT SHOULD BE
UNDERSTOOD, HOWEVER, THAT THIS MINIMUM PRICE IS NOT THE AMOUNT WHICH
THE PRODUCER RECEIVES BUT THE PRICE LEVEL OR SO-CALLED "VALUE" FROM
WHICH IS CALCULATED THE ACTUAL AMOUNT IN DOLLARS AND CENTS WHICH HE IS
TO RECEIVE. 

BY ARTICLE VI A UNIFORM PRICE IS COMPUTED AND IT IS THIS UNIFORM
PRICE WHICH THE PRODUCER IS ACTUALLY PAID BY THE PROPRIETARY
(NONCOOPERATIVE) HANDLERS.  THE UNIFORM PRICE IS DETERMINED BY A
COMPUTATION WHICH IN SUBSTANCE MULTIPLIES THE AMOUNT OF MILK
(CLASSIFIED ACCORDING TO ITS USE) RECEIVED BY ALL HANDLERS, LESS
CERTAIN QUANTITIES OF MILK PERMITTED TO BE DEDUCTED, BY THE MINIMUM
PRICES FIXED BY ARTICLE IV FOR THE DIFFERENT CLASSES OF MILK.  FROM THE
RESULT VARIOUS PAYMENTS AND RESERVATIONS ARE DEDUCTED AND THE REMAINDER
IS DIVIDED BY THE TOTAL QUANTITY OF MILK RECEIVED.  TO EQUALIZE,
HANDLERS PAY INTO THE PRODUCER SETTLEMENT FUND.  WHILE MUCH OVER
SIMPLIFIED THE OPERATION WILL BE MADE CLEAR BY SUMMARIZING THE
PROVISIONS OF ARTICLE VII TO REQUIRE THAT HANDLERS SHALL PAY TO THE
PRODUCER SETTLEMENT FUND THE AMOUNT BY WHICH THEIR PURCHASED MILK
MULTIPLIED BY THE MINIMUM PRICES FOR THE VARIOUS CLASSES IS GREATER
THAN THEIR PURCHASED MILK MULTIPLIED BY THE UNIFORM PRICE.  WHEN THE
HANDLERS' PURCHASED MILK MULTIPLIED BY THE MINIMUM PRICE IS LESS THAN
WHEN IT IS MULTIPLIED BY THE UNIFORM PRICE, THE PRODUCER SETTLEMENT
FUND PAYS THEM THE DIFFERENCE FOR DISTRIBUTION TO THEIR PRODUCERS. 
THESE PROVISIONS GIVE UNIFORM PRICES TO ALL PRODUCERS, WITH EXCEPTIONS
TO BE HEREIN STATED, IN ACCORDANCE WITH THE GENERAL USE OF MILK FOR THE
PRECEDING PERIOD. 

OTHER PROVISIONS OF THE ORDER UPON WHICH AN ATTACK IS MADE WILL BE
POINTED OUT IN THE DISCUSSION OF THE PARTICULAR OBJECTIONS. 

SUSPENSION OF ORDER.  - IT DEVELOPED AT THE ARGUMENT OF THE CAUSES IN
THIS COURT THAT THE SECRETARY OF AGRICULTURE ON MARCH 18, 1939,  FN15
HAD SUSPENDED ORDER NO. 27 ON ACCOUNT OF THE EFFECT OF THE DECREE BELOW
ON ITS ADMINISTRATION AND ENFORCEMENT.  SEC. 8C (16)(A).  SINCE THIS
SUSPENSION IS AUTHORIZED BY THE STATUTE AND THE ORDER PRESERVES ACCRUED
RIGHTS, WE ARE OF THE OPINION THIS STEP DOES NOT MAKE THESE PROCEEDINGS
MOOT.  REPORTS OF THEIR RECEIPTS AND CLASSIFIED SALES OF MILK,
ACCOUNTING OF THEIR POOL OBLIGATIONS IN THE DETERMINATION OF THE
UNIFORM PRICE AND SETTLEMENT WITH THEIR PRODUCERS ON THE BASIS OF THE
ORDER, AS WELL AS THE PAYMENT OF MONEY, ARE SOUGHT FROM THE
DEFENDANTS.  THE CONTROVERSY OVER THE VALIDITY OF THE ORDER AND THE
POWER TO ENFORCE ITS PROVISIONS REMAINS. 

ADOPTION OF THE ORDER.  - BEFORE CONSIDERING THE VALIDITY OF THE
MARKETING ACT AND THE PROVISIONS OF THE ORDER UNDER ATTACK, WE SHALL
EXAMINE THE CONTENTION OF THE DEFENDANTS THAT THE ORDER WAS ADOPTED
UNDER CIRCUMSTANCES WHICH REQUIRE A COURT OF EQUITY TO REFUSE TO
ENFORCE IT.  AFTER DEALERS HAD REFUSED OR FAILED TO SIGN THE PROPOSED
MARKETING AGREEMENT, THE SECRETARY CONDUCTED A REFERENDUM UNDER SEC. 8C
(19) TO ASCERTAIN WHETHER THE ISSUANCE OF ORDER NO. 27 WAS APPROVED BY
TWO-THIRDS OF THE PRODUCERS, AS REQUIRED BY SEC. 8C (9).  VIGOROUS
CAMPAIGNS WERE WAGED BY BOTH PROPONENTS AND OPPONENTS OF THE ORDER. 
AMONG THE PROPONENTS WERE THE LEAGUE AND THE AGENCY.  AFTER THE VOTE,
THE SECRETARY ON AUGUST 24, 1938, WITH THE APPROVAL OF THE PRESIDENT,
DETERMINED THAT THE ISSUANCE OF THE ORDER WAS FAVORED BY AT LEAST TWO
THIRDS OF THE PRODUCERS, AND DECLARED IT EFFECTIVE AS OF SEPTEMBER 1,
1938.  FN16 

THE DEFENDANTS BASE THEIR APPEAL TO THE CONSCIENCE OF THE CHANCELLOR
UPON MATTERS CONNECTED WITH THE REFERENDUM WHICH THEY CLAIM AMOUNT TO
FRAUD IN ITS ADOPTION.  THE ALLEGED FRAUD IS SAID TO CONSIST OF
WIDESPREAD PUBLIC MISREPRESENTATIONS TO THE EFFECT THAT ALL PRODUCERS
WOULD RECEIVE THE SAME PRICE FOR THEIR MILK AND A CONSPIRACY BETWEEN
THE LEAGUE AND OTHERS TO CONVERT THE STATE AND NATIONAL ACTS INTO
INSTRUMENTS FOR THE CREATION OF A MONOPOLY IN LARGE HANDLERS IN THE
SALE OF FLUID MILK IN THE MARKETING AREA. 

THE FINDINGS SUPPORTING THE CHARGES OF MISREPRESENTATION AND
CONSPIRACY MAY BE SUMMARIZED AS DETERMINING THAT THE INTERVENING
PLAINTIFFS, THE LEAGUE AND THE AGENCY, PARTICIPATED ACTIVELY IN
PROPOSING, ADOPTING AND INDUCING BOTH PRODUCERS AND HANDLERS TO ACCEPT
THE ORDER.  IN GREATER DETAIL, THE FINDINGS SHOW THAT THE LEAGUE WAS
INSTRUMENTAL IN THE ORGANIZATION OF THE AGENCY; THAT IT HAS
REPRESENTATIVES UPON THE AGENCY'S BOARD OF DIRECTORS; THAT THE AGENCY
HAS ACTED AS AN ORGANIZATION FOR PROMOTING ACTION UNDER BOTH FEDERAL
AND STATE ACTS; THAT BOTH LEAGUE AND AGENCY PUBLISHED PAPERS WHICH GAVE
VIGOROUS SUPPORT TO THE CAMPAIGN FOR APPROVAL OF THE ORDER.  AT THE
TIME OF THE HEARINGS THE AGENCY ISSUED AN EXPLANATORY BOOKLET STATING
THAT AN EQUAL PURCHASING PRICE WOULD BE PAID BY ALL DEALERS FOR MILK OF
THE SAME USE AND THAT EACH PRODUCER WOULD SHARE EQUALLY THE BENEFITS OF
THE FLUID MILK MARKET.  BOTH AGENCY AND LEAGUE ANNOUNCED REPEATEDLY
THAT HANDLERS WOULD BE REQUIRED TO PAY A UNIFORM PRICE AND THAT NO
HANDLER WOULD RECEIVE A COMPETITIVE ADVANTAGE OVER THE OTHERS.  THE
AGENCY EXPENDED OVER $63,000 BETWEEN DECEMBER 1, 1937, AND JUNE 1,
1938, AND OVER $45,000 BETWEEN THE LATTER DATE AND SEPTEMBER 1, 1938,
THE DATE THE ORDER WENT INTO EFFECT, AS IT ACTIVELY SUPPORTED THE
FEDERAL-STATE ORDER PROGRAM.  VOTING ON THE ORDER TOOK PLACE AUGUST 18,
19 AND 20.  OF 38,627 VOTES COUNTED AS VALID IN THE REFERENDUM, 33,663
OR 87.1 PERCENT WERE IN FAVOR OF THE ISSUANCE OF THE ORDER, AND 4,964
OR 12.9 PERCENT WERE OPPOSED.  OF THE FAVORABLE VOTES, THE LEAGUE CAST
22,287. 

SUPPORTING EVIDENCE BEYOND THE COORDINATED ACTIVITIES OF THE AGENCY,
THE LEAGUE AND OTHER COOPERATIVES FOR THE CHARGE OF CONSPIRACY TO
MONOPOLIZE BY SECURING THE ADOPTION OF THE ORDER WAS FOUND BY THE
DISTRICT COURT IN THE PROVISIONS OF THE ORDER.  COMPETITIVE ADVANTAGES
TO COOPERATIVES IN THE ORDER WERE THOUGHT BY IT TO INDICATE AN IMPROPER
INFLUENCE BY THEM IN ITS DRAFTING.  THESE WILL BE DISCUSSED LATER FROM
THE POINT OF VIEW OF THEIR LEGALITY UNDER PERMISSIBLE CLASSIFICATION. 
THE COURT FOUND THAT THE CONSPIRACY TO OBTAIN A MONOPOLY WAS CARRIED
OUT BY COERCIVE TACTICS ON THE PART OF PRODUCERS, UNDER THE LEADERSHIP
OF THE LEAGUE AND THE AGENCY.  THESE TACTICS CONSISTED OF THREATS TO
HANDLERS THAT IF THEY DID NOT COMPLY WITH THE ORDER, THE PRODUCERS
WOULD WITHHOLD DELIVERY OF MILK.  THESE SCHEMES, THE LOWER COURT
DETERMINED, WERE SO SUCCESSFUL IN SECURING THE DRAFTING, ADOPTION AND
ACCEPTANCE OF THE ORDER THAT A CONSPIRACY TO MONOPOLIZE INTERSTATE
COMMERCE CONTRARY TO THE SHERMAN ACT WAS ESTABLISHED.  IT HELD THAT THE
OCCURRENCE OF THE INCIDENTS JUST DETAILED COMPELLED REFUSAL OF THE
INJUNCTION.  WE DO NOT AGREE. 

WHILE CONSIDERING THE MANNER OF THE ADOPTION OF THE ORDER, THE
VALIDITY OF THE ACT AND THE PROVISIONS OF THE ORDER MUST BE ASSUMED. 
THE ORDER WAS SUBMITTED TO THE PRODUCERS FOR APPROVAL AFTER THE
HEARINGS SPECIFIED IN THE STATUTE.  THE FULL TEXT OF THE ORDER WITH
EXPLANATORY PAMPHLETS WAS MAILED EACH PROSPECTIVE VOTER.  IN THE FACE
OF THIS FACT, ERRONEOUS STATEMENTS CANNOT BE PERMITTED TO RENDER THE
SUBMISSION FUTILE.  THERE IS NO EVIDENCE THAT ANY PRODUCER
MISUNDERSTOOD.  A CASUAL SENTENCE IN ONE OF THE PAMPHLETS OF THE
DEPARTMENT OF AGRICULTURE AND A NUMBER OF OTHER STATEMENTS IN
PUBLICATIONS OF THE LEAGUE AND AGENCY WERE TO THE EFFECT THAT DEALERS
WOULD PAY ALL PRODUCERS THE UNIFORM PRICE FOR MILK.  SUCH ASSERTIONS
NEED THE QUALIFICATIONS GIVEN IN THE ORDER THAT THEY ARE NOT APPLICABLE
TO MILK SOLD OUTSIDE THE MARKETING AREA OR TO MILK HANDLED BY
COOPERATIVES.  THE VARIATION FROM THE FACTS IS NOT IMMATERIAL IN VIEW
OF THE VALUE OR VOLUME OF MILK INVOLVED.  BUT THE ORDER, ARTICLE VII,
PLAINLY STATED THAT COOPERATIVES WERE NOT COVERED BY THE PAYMENT
REQUIREMENTS AND IT APPEARED, ALSO, THAT MILK SOLD OUTSIDE THE
MARKETING AREA WAS NOT WITHIN ITS TERMS.  A STUDY OF THE OFFICIAL FORM
OF THE ORDER WOULD HAVE CLEARED UP ANY MISCONCEPTION CREATED BY THE
LANGUAGE.  THE SECRETARY OF AGRICULTURE DECLARED THAT THREE-FOURTHS OF
THE PRODUCERS AFFECTED BY THE ORDER APPROVED ITS TERMS.  THE LITIGANTS
DO NOT DENY THAT THREE-FOURTHS OF THE VOTERS VOTED FOR THE INSTITUTION
OF THE ORDER.  THERE IS NO AUTHORITY IN THE COURTS TO GO BEHIND THIS
CONCLUSION OF THE SECRETARY TO INQUIRE INTO THE INFLUENCES WHICH CAUSED
THE PRODUCERS TO FAVOR THE RESOLUTION. 

THE COERCION BY THE LEAGUE AND THE AGENCY, EXERCISED UPON THE
HANDLERS AFTER THE ADOPTION OF THE ORDER TO FORCE OR INDUCE THEM TO
ACQUIESCE IN ITS OPERATION, IS OF THE SAME INDIRECT CHARACTER AS THE
ALLEGED MISREPRESENTATION.  IT IS THE PARTISAN COERCION OF THE PRODUCER
SEEKING TO COMPEL DEALER SUPPORT OF THE PLAN BY THE THREAT OF THE USE
OF HIS ECONOMIC POWER OVER HIS OWN MILK.  THE COERCION WAS INEFFECTIVE
UPON THESE DEFENDANTS. PRODUCERS' ORGANIZATIONS URGED IN THEIR PAPERS
AND MEETINGS DIVERSION OF MILK FROM HANDLERS TO INFLUENCE THEM TO AGREE
TO THE ORDER.  SUCH EFFORTS COULD NOT HAVE HAD AN EFFECT ON THE PRIOR
VOTE OF THE PRODUCERS.  IT IS QUITE TRUE THAT THE LEAGUE WHICH ITSELF
CAST TWO-THIRDS OF THE FAVORABLE VOTES WAS IN A POSITION TO CAST MORE
THAN ONE-THIRD OF THE TOTAL QUALIFIED VOTE AGAINST THE ORDER.  THIS
ARISES FROM THE PROVISION OF THE ACT, AUTHORIZING COOPERATIVES TO
EXPRESS THE APPROVAL OR DISAPPROVAL FOR ALL OF THEIR MEMBERS OR
PATRONS.  FN17  THIS IS NOT AN UNREASONABLE PROVISION, AS THE
COOPERATIVE IS THE MARKETING AGENCY OF THOSE FOR WHOM IT VOTES.  IF THE
POWER IS IN THE CONGRESS TO PUT THE ORDER IN EFFECT, THE MANNER OF THE
DEMONSTRATION OF FURTHER APPROVAL IS LIKEWISE UNDER ITS CONTROL.  THESE
ASSOCIATIONS OF PRODUCERS OF MILK HAVE A VITAL INTEREST IN THE
ESTABLISHMENT OF AN EFFICIENT MARKETING SYSTEM.  THIS ADEQUATELY
EXPLAINS THEIR INTEREST IN SECURING THE ADOPTION OF AN ORDER BELIEVED
BY THEM TO BE FAVORABLE FOR THIS PURPOSE.  IF ULTERIOR MOTIVES OF
CORPORATE AGGRANDIZEMENT STIMULATED THEIR ACTIVITIES, THEIR EFFORTS
WERE NOT THEREBY RENDERED UNLAWFUL.  FN18  IF THE ACT AND ORDER ARE
OTHERWISE VALID, THE FACT THAT THEIR EFFECT WOULD BE TO GIVE
COOPERATIVES A MONOPOLY OF THE MARKET WOULD NOT VIOLATE THE SHERMAN ACT
OR JUSTIFY THE REFUSAL OF THE INJUNCTION. 

CORRELATION OF ORDER AND ACT.  THERE IS ANOTHER PHASE OF THE ARGUMENT
AGAINST THE ORDER WHICH IS NOT AFFECTED BY THE VALIDITY OF THE ACT OR
ITS APPLICATION IN THE ORDER AND THEREFORE IS READY FOR DISPOSITION
BEFORE THE CONSTITUTIONAL QUESTIONS NEED BE REACHED.  DEFENDANTS
CONTEND THERE IS NO STATUTORY BASIS FOR THE SECTIONS OF THE ORDER
EXEMPTING COOPERATIVES FROM THE PAYMENT OF THE UNIFORM PRICE  FN19  AND
AUTHORIZING PAYMENTS TO THEM AND CERTAIN HANDLERS FROM THE PRODUCER
SETTLEMENT FUND.  FN20 

THE GOVERNMENT MAKES THE POINT THAT NONE OF THE DEFENDANTS, ALL
HANDLERS, CAN OBJECT TO THESE TERMS OF THE ORDER BECAUSE ONLY PRODUCERS
DELIVERING MILK TO COOPERATIVES ARE AFFECTED BY THE EXEMPTION OF
COOPERATIVE HANDLERS FROM THE REQUIREMENT TO PAY AT NOT LESS THAN THE
UNIFORM PRICE AND ONLY PRODUCERS ARE AFFECTED BY THE USE OF THE POOLED
MONEY FOR SECS. 5 AND 6 PAYMENTS TO COOPERATIVE AND OTHER HANDLERS. 
ALTHOUGH THREE OF THE DEFENDANTS CANNOT COMPLAIN OF THE BENEFITS
CONFERRED UPON COOPERATIVES, FOR THEY ARE COOPERATIVES, THE DEFENDANT
JETTER DAIRY COMPANY HAS STANDING TO RAISE THE ISSUE OF WANT OF
STATUTORY AUTHORITY TO EXCEPT COOPERATIVE HANDLERS FROM THE PAYMENT OF
THE UNIFORM PRICE.  IT IS A PROPRIETARY CORPORATION, A HANDLER OF MILK,
REQUIRED BY THE ORDER TO PAY UNIFORM PRICES FOR THE MILK IT PURCHASES. 
FN21  THIS REQUIREMENT TO PAY UNIFORM PRICES ARISES FROM THE PROVISIONS
OF ARTICLE IV THAT IT SHALL PAY MINIMUM PRICES.  THE TWO ARE THE SAME
EXCEPT FOR THE DEDUCTION OF CERTAIN SERVICE PAYMENTS.  THE COOPERATIVES
ARE EXCEPTED FROM THE PAYMENT.  THE BURDEN OF PAYMENT IS LAID DIRECTLY
UPON JETTER WHILE OTHERS ARE EXCEPTED.  NONE OF THE DEFENDANTS, ON THE
OTHER HAND, IS IN A POSITION TO RAISE THE ISSUE OF LACK OF STATUTORY
AUTHORITY FOR THE PAYMENTS AUTHORIZED BY ARTICLE VII, SECS. 5 AND 6. 
WHETHER COOPERATIVE OR NOT, THE DEFENDANT CORPORATIONS HAVE NO
FINANCIAL INTEREST IN THE PRODUCER SETTLEMENT FUND.  ALL DEFENDANTS PAY
INTO, OR DRAW OUT OF, THAT FUND IN ACCORDANCE WITH THEIR UTILIZATION OF
THE MILK DELIVERED TO THEM BY THEIR PATRONS.  THE DEFENDANTS' PROFIT OR
LOSS DEPENDS UPON THE SPREAD EACH RECEIVES BETWEEN THE CLASS PRICE AND
SALE PRICE.  IF THE DEDUCTIONS FROM THE FUND ARE SMALL OR NOTHING, THE
PATRON RECEIVES A HIGHER UNIFORM PRICE BUT THE HANDLER IS NOT
AFFECTED.  FN22 

WE NOW CONSIDER WHETHER THE ACT AUTHORIZES THE EXCEPTION OF THE
COOPERATIVES FROM THE UNIFORM PAYMENT PROVISIONS OF ARTICLE VII, SEC.
1.  THIS AUTHORITY, IF IT EXISTS, IS IN SEC. 8C (5)(F) OF THE ACT.  THE
EARLIER PARAGRAPHS PROVIDE FOR MINIMUM PRICES TO BE PAID BY HANDLERS TO
PRODUCERS AND ASSOCIATIONS OF PRODUCERS, SUBJECT TO USUAL QUALITY AND
LOCATION DIFFERENTIALS NOT IMPORTANT HERE.  THESE WOULD REQUIRE MINIMUM
PRICES TO BE PAID BY COOPERATIVES WHEN, AS HERE, THEY WERE HANDLERS
UNDER THE DEFINITION OF THE ORDER,  FN23  WERE IT NOT FOR THE EXCEPTION
OF THESE SAME COOPERATIVES UNDER SUBSECTION (F):  "NOTHING  ...  SHALL
...  PREVENT A COOPERATIVE  ...  FROM ...  MAKING DISTRIBUTION THEREOF
(NET PROCEEDS)  ...  IN ACCORDANCE WITH THE CONTRACT BETWEEN THE
ASSOCIATION AND ITS PRODUCERS."  THIS LANGUAGE SPECIFICALLY PERMITS,
INDEED REQUIRES, THE ORDER TO EXCEPT COOPERATIVES FROM THE REQUIREMENT
OF PAYING MINIMUM PRICES TO PRODUCERS.  AS THE MINIMUM PRICE IS PAID TO
THE PRODUCER THROUGH THE PAYMENT OF THE UNIFORM PRICE, AFTER
EQUALIZATION IN THE POOL, THERE IS AUTHORITY IN THE ACT TO EXCEPT THE
COOPERATIVE FROM THE PAYMENT OF THE UNIFORM PRICE. 

                       I. TERMS OF THE ORDER. 

CERTAIN PROVISIONS OF THE ORDER WERE FOUND BY THE DISTRICT COURT TO
SHOW UNCONSTITUTIONAL DISCRIMINATION AGAINST ONE OR MORE OF THE
DEFENDANTS.  THE DISCRIMINATIONS OF WHICH COMPLAINT IS MADE ARISE FROM
THE APPLICATION TO THE NEW YORK PROBLEM OF SEC. 8C (5) OF THE ACT
RELATING TO MILK. 

A. UNIFORM PRICE.  - THE JETTER DAIRY COMPANY, A PROPRIETARY HANDLER,
URGES THAT AS MILK COOPERATIVES NEED NOT PAY PRODUCERS A UNIFORM PRICE,
IT IS UNREASONABLY DISCRIMINATORY AND VIOLATIVE OF THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT TO REQUIRE IT TO PAY THIS UNIFORM PRICE. 
IN SEC. 8C (5)(F) THERE IS A DEFINITION OF THE TYPE OF COOPERATIVE
PERMITTED TO SETTLE WITH ITS MEMBERS IN ACCORDANCE WITH THE MEMBERSHIP
CONTRACT.  THE GENERAL CHARACTERISTICS OF COOPERATIVES ARE WELL
UNDERSTOOD.  THE CAPPER-VOLSTEAD ACT DEFINES SUCH COOPERATIVES AS
ASSOCIATIONS OF PRODUCERS, CORPORATE OR OTHERWISE, WITH OR WITHOUT
CAPITAL STOCK, MARKETING THEIR PRODUCT FOR THE MUTUAL BENEFIT OF THE
MEMBERS AS PRODUCERS WITH EQUAL VOTING PRIVILEGES, RESTRICTED DIVIDENDS
ON CAPITAL EMPLOYED AND DEALINGS LIMITED TO 50 PERCENT NON-MEMBER
PRODUCTS.  FN24  DIFFERENT TREATMENT HAS BEEN ACCORDED MARKETING
COOPERATIVES BY STATE AND FEDERAL LEGISLATION ALIKE.  FN25  INDEED THE
SECRETARY IS CHARGED BY THIS ACT TO "ACCORD SUCH RECOGNITION AND
ENCOURAGEMENT TO PRODUCER-OWNED AND PRODUCER-CONTROLLED COOPERATIVE
ASSOCIATIONS AS WILL BE IN HARMONY WITH THE POLICY TOWARD COOPERATIVE
ASSOCIATIONS SET FORTH IN EXISTING ACTS OF CONGRESS, AND AS WILL TEND
TO PROMOTE EFFICIENT METHODS OF MARKETING AND DISTRIBUTION."  FN26
THESE AGRICULTURAL COOPERATIVES ARE THE MEANS BY WHICH FARMERS AND
STOCKMEN ENTER INTO THE PROCESSING AND DISTRIBUTION OF THEIR CROPS AND
LIVESTOCK.  THE DISTINCTIONS BETWEEN SUCH COOPERATIVES AND BUSINESS
ORGANIZATIONS HAVE REPEATEDLY BEEN HELD TO JUSTIFY DIFFERENT
TREATMENT.  FN27  FROST COMMISSION  FN28  IN FACT RECOGNIZED THE
VALIDITY OF SUCH CLASSIFICATION.  THE COMMISSION WAS ENJOINED FROM
ISSUING A LICENSE FOR THE OPERATION OF A COOPERATIVE COTTON GIN, UNDER
A PROVISO DIRECTING IT TO DO SO ON PETITION OF 100 CITIZENS AND
TAXPAYERS WITHOUT THE SHOWING OF PUBLIC NECESSITY REQUIRED FOR OTHER
GINNERS.  THE APPLICANT WAS ORGANIZED FOR PROFIT, THOUGH DIVIDENDS WERE
LIMITED, AND ITS MEMBERSHIP WAS NOT CONFINED TO PRODUCERS.  THE COURT
THOUGHT THE DISTINCTIONS HAD NO REASONABLE RELATION TO THE SUBJECT OF
THE LEGISLATION, SPECIAL OPPORTUNITIES FOR COOPERATIVES.  IT WAS SAID
THE COURT HAD "NO REASON TO DOUBT" THAT THE CLASSIFICATION WAS VALID AS
APPLIED TO TRUE COOPERATIVES.  FN29 

THE PRODUCER COOPERATIVE SEEKS TO RETURN TO ITS MEMBERS THE LARGEST
POSSIBLE PORTION OF THE DOLLAR NECESSARILY SPENT BY THE CONSUMER FOR
THE PRODUCT WITH DEDUCTIONS ONLY FOR MODEST DISTRIBUTION COSTS, WITHOUT
PROFIT TO THE MEMBERSHIP COOPERATIVE AND WITH LIMITED PROFIT TO THE
STOCK COOPERATIVE.  IT IS ORGANIZED BY PRODUCERS FOR THEIR MUTUAL
BENEFIT.  FN30  FOR THAT REASON, IT MAY BE ASSUMED THAT IT WILL SEEK TO
DISTRIBUTE THE LARGEST AMOUNTS TO ITS PATRONS. 

THE COMMODITY HANDLED BY A COOPERATIVE CORRESPONDS FOR SOME PURPOSES
TO THE CAPITAL OF A BUSINESS CORPORATION.  EITHER MAY CUT SALE PRICES
BELOW COST, ONE AS LONG AS ITS MEMBERS WILL DELIVER, THE OTHER AS LONG
AS ITS ASSETS PERMIT.  WHEN PROPRIETARY CORPORATIONS LOWER SALES
PRICES, THEY NATURALLY SEEK TO LOWER PURCHASE PRICES.  THEIR PROFIT
DEPENDS ON SPREAD.  ON THE OTHER HAND, THE COOPERATIVE CANNOT PASS THE
REDUCTION.  ALL THE SELLING PRICE LESS EXPENSE IS AVAILABLE FOR
DISTRIBUTION TO ITS PATRONS.  AS ITS OWN MEMBERS BEAR THE BURDEN OF
PRICE CUTTING, IT WAS REASONABLE TO EXEMPT IT FROM THE PAYMENT OF THE
FIXED PRICE.  THE COOPERATIVE MEMBER MEASURES HIS RETURN BY THE MARKET
OR UNIFORM PRICE THE BUSINESS HANDLER PAYS.  IN COMMODITIES WITH THE
WIDE MARKET OF STAPLE DAIRY PRODUCTS, QUOTATIONS ARE READILY
AVAILABLE.  IF DISTRIBUTIONS DO NOT EQUAL OPEN PRICES, THE COOPERATORS'
REACTIONS WOULD PARALLEL THOSE OF STOCKHOLDERS OF LOSING BUSINESSES. 
NEITHER THE ACT NOR THE ORDER PROTECTS ANYONE FROM LAWFUL COMPETITION,
NOR IS IT ESSENTIAL THAT THEY SHOULD DO SO.  FN31  WE DO NOT FIND AN
UNREASONABLE DISCRIMINATION IN EXCEPTING PRODUCERS' COOPERATIVES FROM
THE REQUIREMENT TO PAY A UNIFORM PRICE. 

B. UNPRICED MILK.  ANOTHER DISCRIMINATION IS SAID TO RESIDE IN THAT
PART OF THE ORDER WHICH LIMITS MINIMUM PRICES TO MILK "SOLD IN THE
MARKETING AREA OR WHICH PASSES THROUGH A PLANT IN THE MARKETING AREA." 
OTHER MILK, THOUGH FROM THE SAME PRODUCTION AREA, IS "UNPRICED MILK"
AND DOES NOT FIGURE IN THE COMPUTATION OF THE UNIFORM PRICE.  WHERE
BOTH PRICED AND UNPRICED MILK ARE DEALT IN BY A HANDLER, HE MUST
FURNISH A STATEMENT TO THE PRODUCER SHOWING THE PERCENTAGE OF HIS MILK
PAID FOR AT THE UNIFORM PRICE.  FN32  THE DEFENDANTS HANDLE ONLY MILK
WHICH IS SOLD IN THE MARKETING AREA.  THEY ASSERT THAT AN UNREASONABLE
DISCRIMINATION RESULTS IN FAVOR OF HANDLERS, SUCH AS THE LEAGUE, WHICH
MARKET MILK BOTH IN AND OUTSIDE THE MARKETING AREA. 

THE BASIS OF THE COMPLAINT IS THAT LARGE DEALERS AND COOPERATIVE
HANDLERS WITH EXTENSIVE GATHERING AND DISTRIBUTING FACILITIES ARE
PERMITTED TO PURCHASE MILK THROUGHOUT THE MILK SHED AT ANY PRICE THEY
PLEASE, IF THE MILK DOES NOT PASS THROUGH A PLANT IN THE MARKETING
AREA, AND SELL IT AT ANY PRICE THEY PLEASE, PROVIDED THE SALE IS
OUTSIDE THE LIMITED NEW YORK MARKETING AREA.  BY REASON OF THE FACT
THAT MILK SELLS FOR MORE IN NEW JERSEY THAN IN NEW YORK, A GREATER
PROFIT IS MADE BY THE HANDLER.  IF HE SO DESIRES, THE HANDLER CAN USE
THIS PROFIT TO REPLACE LOSSES ON NEW YORK AREA SALES AND STILL BE IN A
POSITION TO PAY THE UNIFORM PRICE TO PRODUCERS ON POOL MILK.  THIS IS
SAID TO CREATE A DISCRIMINATION AGAINST THE DEFENDANTS. 

IT IS POSSIBLE FOR THE HANDLERS WITH UNPRICED MILK TO USE THEIR
PROFITS FROM THE PROFITABLE EXTRA AREA TRADE IN THE WAY SUGGESTED.  IT
WAS EQUALLY POSSIBLE FOR THEM TO DO SO BEFORE THE ORDER.  IT IS A
COMPETITIVE SITUATION WHICH THE ORDER DID NOT CREATE AND WITH WHICH IT
DOES NOT DEAL.  WE ARE OF THE VIEW THAT THERE IS NO DISCRIMINATION BY
REASON OF THIS SITUATION. 

THE DISTRICT COURT FOUND THAT HANDLERS OF UNPRICED MILK "ARE
PERMITTED TO BLEND PRICES PAID OR PURPORTED TO HAVE BEEN PAID FOR SUCH
MILK SOLD IN OTHER MARKETS, WITH THE UNIFORM PRICE ANNOUNCED BY THE
ADMINISTRATOR FOR MILK SOLD IN THE AREA, THEREBY REDUCING THE ACTUAL
PRICE PAID BY SUCH HANDLERS, FOR MILK SOLD IN THE METROPOLITAN AREA, IN
COMPETITION WITH MILK SOLD BY THE DEFENDANTS."  "IF THE PRICE FIGURED
BY THE HANDLER FOR UNPRICED MILK, IS LOWER THAN ITS ACTUAL MARKET
VALUE, THE HANDLER, BY BLENDING, IS THEREBY PERMITTED TO PAY PRODUCERS
FOR ALL MILK AT LESS THAN THE ORDER PRICE, AND LESS THAN THE ACTUAL
VALUE THEREOF."  IT IS ERRONEOUS TO SUPPOSE THAT BY BUYING SOME MILK AT
LESS THAN THE MINIMUM, THE "ACTUAL PRICE" PAID FOR MILK SOLD IN THE
MARKETING AREA IS REDUCED.  THE PRICE PAID FOR ALL MILK SOLD BY
PROPRIETARY HANDLERS IN THAT AREA IS THE UNIFORM PRICE.  UNPRICED MILK
FROM THE SAME PRODUCER MAY BE BOUGHT FOR LESS.  THE AVERAGE PAID THE
PRODUCER MAY BE BELOW THE MINIMUM BUT FOR THE PART SOLD IN THE
MARKETING AREA OR PASSING THROUGH PLANTS THERE LOCATED THE MINIMUM IS
PAID.  THIS IS ALL THAT JUSTIFIES THE LANGUAGE OF THE FINDING THAT "THE
HANDLER, BY BLENDING, IS THEREBY PERMITTED TO PAY PRODUCERS FOR ALL
MILK AT LESS THAN THE ORDER PRICE.  ...  " 

C. NEARBY DIFFERENTIALS.  PROVISION IS MADE BY THE ORDER FOR SPECIAL
DIFFERENTIALS OF 20 CENTS ON MILK FROM CERTAIN COUNTIES LOCATED MOST
FAVORABLY TO THE MARKETING AREA.  FN33  THIS IS TO ENABLE HANDLERS TO
PAY THE PRODUCERS AT THESE PLANTS.  FN34  THE FIVE CENT DIFFERENCE IS
ABSORBED BY THE HANDLERS.  THE ACT AUTHORIZES SUCH AN ARRANGEMENT. 
SEC. 8C (5)(A).  THIS WAS FOUND DISCRIMINATORY AS BETWEEN PRODUCERS BY
THE DISTRICT COURT BUT THERE WAS NO FINDING OR CONCLUSION OF LAW AS TO
ANY DISCRIMINATION AGAINST DEFENDANTS.  THE DISTRICT COURT WAS OF THE
OPINION THIS WAS UNFAIR TO THESE DEFENDANTS WHO HAVE NO PATRONS IN
THESE COUNTIES.  HERE THE DEFENDANTS URGE FURTHER ADVANTAGES FROM THIS
ARRANGEMENT TO THEIR COMPETITORS WHO HAVE PATRONS IN THESE COUNTIES
BECAUSE NEAR LOCATIONS, FREIGHT DIFFERENTIALS CONSIDERED, HAVE LOWER
TRANSPORTATION COSTS.  THE DIFFERENTIAL INCREASES MILK PRICES TO THE
PRODUCERS.  THIS PAYMENT TENDS TO STIMULATE PRODUCTION.  LARGER
PRODUCTION MEANS MORE BENEFIT FROM THE FREIGHT ADVANTAGE TO
COMPETITORS.  THE DISCRIMINATION SEEMS FANCIFUL AND REMOTE.  IT WOULD
NOT JUSTIFY A COURT IN OVERTURNING THE SECRETARY'S DETERMINATION OF THE
PROPRIETY OF THE DIFFERENTIALS ON EVIDENCE FOUND BY THE LOWER COURT TO
BE SUBSTANTIAL.  SUCH AN ADMINISTRATIVE DETERMINATION CARRIES A
PRESUMPTION OF THE EXISTENCE OF A STATE OF FACTS JUSTIFYING THE ACTION
FAR TOO STRONG TO BE OVERTURNED BY SUCH SUGGESTIONS AS ARE MADE HERE. 
FN35

         II.  CONSTITUTIONALITY OF THE ACT. 

A. MINIMUM PRICES.  THE ACT AUTHORIZES AND THE ORDER UNDERTAKES THE
FIXING OF MINIMUM PRICES FOR THE PURCHASE OF MILK "IN THE CURRENT OF
INTERSTATE OR FOREIGN COMMERCE, OR WHICH DIRECTLY BURDENS, OBSTRUCTS,
OR AFFECTS, INTERSTATE OR FOREIGN COMMERCE" IN MILK.  FN36  THERE IS NO
CHALLENGE TO THE FACT THAT THE MILK OF ALL FOUR DEFENDANTS REACHES THE
MARKETING AREA THROUGH THE CHANNELS OF INTERSTATE COMMERCE.  NOR IS ANY
QUESTION RAISED AS TO THE POWER OF THE CONGRESS TO REGULATE THE
DISTRIBUTION IN THE AREA OF THE WHOLLY INTRASTATE MILK.  IT IS
RECOGNIZED THAT THE FEDERAL AUTHORITY COVERS THE SALES OF THIS MILK, AS
ITS MARKETING IS INEXTRICABLY INTERMINGLED WITH AND DIRECTLY AFFECTS
THE MARKETING IN THE AREA OF THE MILK WHICH MOVES ACROSS STATE LINES. 
FN37    THE CHALLENGE IS TO THE REGULATION "OF THE PRICE TO BE PAID
UPON THE SALE BY A DAIRY FARMER WHO DELIVERS HIS MILK TO SOME COUNTRY
PLANT."  IT IS URGED THAT THE SALE, A LOCAL TRANSACTION, IS FULLY
COMPLETED BEFORE ANY INTERSTATE COMMERCE BEGINS AND THAT THE ATTEMPT TO
FIX THE PRICE OR OTHER ELEMENTS OF THAT INCIDENT VIOLATES THE TENTH
AMENDMENT.  BUT WHERE COMMODITIES ARE BOUGHT FOR USE BEYOND STATE
LINES, THE SALE IS A PART OF INTERSTATE COMMERCE.  FN38  WE HAVE
LIKEWISE HELD THAT WHERE SALES FOR INTERSTATE TRANSPORTATION WERE
COMMINGLED WITH INTRASTATE TRANSACTIONS, THE EXISTENCE OF THE LOCAL
ACTIVITY DID NOT INTERFERE WITH THE FEDERAL POWER TO REGULATE
INSPECTION OF THE WHOLE.  FN39  ACTIVITIES CONDUCTED WITHIN STATE LINES
DO NOT BY THIS FACT ALONE ESCAPE THE SWEEP OF THE COMMERCE CLAUSE. 
INTERSTATE COMMERCE MAY BE DEPENDENT UPON THEM.  FN40 POWER TO
ESTABLISH QUOTAS FOR INTERSTATE MARKETING GIVES POWER TO NAME QUOTAS
FOR THAT WHICH IS TO BE LEFT WITHIN THE STATE OF PRODUCTION.  FN41
WHERE LOCAL AND FOREIGN MILK ALIKE ARE DRAWN INTO A GENERAL PLAN FOR
PROTECTING THE INTERSTATE COMMERCE IN THE COMMODITY FROM THE
INTERFERENCES, BURDENS AND OBSTRUCTIONS, ARISING FROM EXCESSIVE SURPLUS
AND THE SOCIAL AND SANITARY EVILS OF LOW VALUES, THE POWER OF THE
CONGRESS EXTENDS ALSO TO THE LOCAL SALES. 

THIS POWER OVER COMMERCE WHEN IT EXISTS IS COMPLETE AND PERFECT. 
FN42  IT HAS BEEN EXERCISED TO FIX A WAGE SCALE FOR A LIMITED PERIOD,
FN43  RAILROAD TARIFFS  FN44  AND FEES AND CHARGES FOR LIVE-STOCK
EXCHANGES.  FN45 

THE AUTHORITY OF THE FEDERAL GOVERNMENT OVER INTERSTATE COMMERCE DOES
NOT DIFFER IN EXTENT OR CHARACTER FROM THAT RETAINED BY THE STATES OVER
INTRASTATE COMMERCE.  SINCE MUNN V. ILLINOIS, THIS COURT HAS HAD
OCCASION REPEATEDLY TO GIVE CONSIDERATION TO THE ACTION OF STATES IN
REGULATING PRICES.  FN46  RECENTLY, UPON A REEXAMINATION OF THE GROUNDS
OF STATE POWER OVER PRICES, THAT POWER WAS PHRASED BY THIS COURT TO
MEAN THAT "UPON PROPER OCCASION AND BY APPROPRIATE MEASURES THE STATE
MAY REGULATE A BUSINESS IN ANY OF ITS ASPECTS, INCLUDING THE PRICES TO
BE CHARGED FOR THE PRODUCTS OR COMMODITIES IT SELLS."  FN47 

THE POWER OF A STATE TO FIX THE PRICE OF MILK HAS BEEN ADJUDICATED BY
THIS COURT.  FN48  THE PEOPLE OF GREAT CITIES DEPEND LARGELY UPON AN
ADEQUATE SUPPLY OF PURE FRESH MILK.  SO ESSENTIAL IS IT FOR HEALTH THAT
THE CONSUMER HAS BEEN WILLING TO FOREGO UNRESTRICTED COMPETITION FROM
LOW COST TERRITORY TO BE ASSURED OF THE PRODUCER'S COMPLIANCE WITH
SANITARY REQUIREMENTS, AS ENFORCED BY THE MUNICIPAL HEALTH
AUTHORITIES.  IT BELONGS TO THAT CATEGORY OF COMMODITIES THAT FOR MANY
YEARS HAS BEEN SUBJECTED TO THE REGULATORY POWER OF THE STATE.  A
THOROUGH EXPOSITION OF THE MILK SITUATION IN THE NEW YORK SHED WAS MADE
IN THE NEBBIA CASE.  THERE IS NOTHING TO ADD TO WHAT WAS THERE SAID,
SAVE TO POINT OUT THAT SINCE THAT DECISION, WE HAVE HELD THAT A STATE
CANNOT PROHIBIT THE SALE OF IMPORTED MILK WHERE THE EXTRA-STATE
PURCHASE PRICE WAS BELOW THE PRESCRIBED MINIMUM FN49  AND THAT A
PENNSYLVANIA REGULATORY LAW, INCLUDING MINIMUM PRICES, APPLIED IN THE
ABSENCE OF FEDERAL LEGISLATION TO MILK PURCHASED IN PENNSYLVANIA FOR
SHIPMENT INTO THE NEW YORK MARKETING AREA.  FN50  IN HEGEMAN FARMS
CORP. V. BALDWIN,  FN51  THIS COURT SUSTAINED AGAIN THE NEW YORK MILK
CONTROL STATUTE AGAINST THE COMPLAINT THAT THE PRICE LIMITS WERE
ARBITRARY.  A VARIATION IN PRICES TO BE CHARGED THE CONSUMER BETWEEN
DEALERS WHO HAD AND DEALERS WHO HAD NOT WELL ADVERTISED TRADE NAMES WAS
UPHELD.  FN52  THE POWER ENJOYED BY THE STATES TO REGULATE THE PRICES
FOR HANDLING AND SELLING COMMODITIES WITHIN THEIR INTERNAL COMMERCE
FN53  RESTS WITH THE CONGRESS IN THE COMMERCE BETWEEN THE STATES. 

B. EQUALIZATION POOL.  - IN ORDER TO EQUALIZE THE PRICES RECEIVED BY
PRODUCERS, HANDLERS ARE REQUIRED TO CLEAR THEIR PURCHASES THROUGH THE
PRODUCER SETTLEMENT FUND.  PAYMENTS INTO AND WITHDRAWALS FROM THIS FUND
DEPEND UPON THE "VALUE" OF THE MILK RECEIVED WHICH IS FIXED BY THE
ORDER AT DIFFERENT PRICES GOVERNED BY THE USE MADE BY THE HANDLER OF
THE PURCHASED MILK AND UPON WHETHER HIS OBLIGATIONS TO PRODUCERS ARE
GREATER OR LESS THAN THE UNIFORM PRICE DUE THE PRODUCERS UNDER THE
SCHEME.  THE RESULT OF THE USE OF THE DEVICE OF AN EQUALIZATION POOL IS
THAT EACH PRODUCER, DEALING WITH A PROPRIETARY HANDLER, GETS A UNIFORM
OR WEIGHTED AVERAGE PRICE FOR HIS MILK, WITH DIFFERENTIALS FOR QUALITY,
LOCATION OR OTHER USUAL MARKET VARIATIONS, IRRESPECTIVE OF THE MANNER
OF ITS USE.  THE ACT, SEC. 8C (5)(B)(II) AND (C) AND THE ORDER,
ARTICLES IV, VI AND VII, AUTHORIZE SUCH AN ADJUSTMENT. 

THE DEFENDANTS' OBJECTION TO THE EQUALIZATION POOL, HERE CONSIDERED,
IS NOT TO THE DISBURSEMENTS FROM THE FUND FOR EXPENSES OF STANDBY OR
MARKETING SERVICES AUTHORIZED BY ARTICLE VII, SECS. 5 AND 6, CONCERNING
WHICH WE HOLD THE HANDLER HAS NO STANDING TO COMPLAIN.  IT IS TO THE
ALLEGED DEPRIVATION OF LIBERTY AND PROPERTY ACCOMPLISHED BY THE POOLING
REQUIREMENT IN TAKING AWAY FROM THE DEFENDANTS THEIR RIGHT TO ACQUIRE
MILK FROM THEIR PATRONS AT THE MINIMUM CLASS PRICE, ACCORDING TO ITS
USE, AND FORCING THE HANDLERS TO PAY THEIR SURPLUS, OVER THE UNIFORM
PRICE, TO THE EQUALIZATION POOL INSTEAD OF TO THEIR PATRONS.  THIS
ARGUMENT ASSUMES THE VALIDITY OF PRICE REGULATION, AS SUCH, BUT DENIES
THE CONSTITUTIONALITY OF THE POOLING ARRANGEMENT BECAUSE HANDLERS ARE
NOT AT LIBERTY TO PAY THE PRODUCER IN ACCORDANCE WITH THE USE OF THE
PRODUCER'S MILK BUT MUST DISTRIBUTE THE SURPLUS TO OTHERS WHOSE MILK
WAS RESOLD LESS ADVANTAGEOUSLY.  IT IS URGED THAT TO CARRY THIS
PRINCIPLE OF CONTRIBUTION TO ITS LOGICAL CONCLUSION WOULD MEAN THAT THE
WAGES OF THE EMPLOYED SHOULD BE SHARED WITH THE UNEMPLOYED; THE HIGHLY
PAID, WITH THE UNDERPAID; AND THE RECEIPTS OF THE ABLE, THE FORTUNATE
AND THE DILIGENT, WITH THE INCOMPETENT, THE UNLUCKY AND THE DRONE. 

NO SUCH EXAGGERATED EQUALIZATION OF WEALTH AND OPPORTUNITY IS
PROPOSED.  THE POOL IS ONLY A DEVICE REASONABLY ADAPTED TO ALLOW
REGULATION OF THE INTERSTATE MARKET UPON TERMS WHICH MINIMIZE THE
RESULTS OF THE RESTRICTIONS.  IT IS ANCILLARY TO THE PRICE REGULATION
DESIGNED, AS IS THE PRICE PROVISION, TO FOSTER, PROTECT AND ENCOURAGE
INTERSTATE COMMERCE BY SMOOTHING OUT THE DIFFICULTIES OF THE SURPLUS
AND CUT-THROAT COMPETITION WHICH BURDENED THIS MARKETING.  IN MULFORD
V. SMITH,  FN54 WE MADE IT CLEAR THAT VOLUME OF COMMODITY MOVEMENT
MIGHT BE CONTROLLED OR DISCOURAGED.  AS THE CONGRESS WOULD HAVE,
CLEARLY, THE RIGHT TO PERMIT ONLY LIMITED AMOUNTS OF MILK TO MOVE IN
INTERSTATE COMMERCE, WE ARE OF THE OPINION IT MIGHT PERMIT THE MOVEMENT
ON TERMS OF POOL SETTLEMENT HERE PROVIDED. 

COMMON FUNDS FOR EQUALIZING RISKS ARE NOT UNKNOWN AND HAVE NOT BEEN
CONSIDERED VIOLATIVE OF DUE PROCESS.  THE POOLING PRINCIPLE WAS UPHELD
IN WORKMEN'S COMPENSATION,  FN55  BANK DEPOSIT INSURANCE,  FN56  AND
DISTRIBUTION OF BENEFITS IN THE TRANSPORTATION ACT.  FN57 

THE DEFENDANTS RELY PARTICULARLY UPON THOMPSON V. CONSOLIDATED GAS
UTILITIES CORP.,  FN58  AND RAILROAD RETIREMENT BOARD V. ALTON R. CO.
FN59  IN THE THOMPSON CASE, THE TEXAS RAILROAD COMMISSION ORDERED
PRORATION OF GAS PRODUCTION IN THE PANHANDLE.  IT WAS ASSUMED THAT
PRORATION TO PREVENT WASTE AND PROTECT CORRELATIVE RIGHTS IN A POOL WAS
VALID BUT IT WAS HELD THAT THE PRORATION ORDER IN ISSUE WAS FOR NONE OF
THESE PURPOSES.  IT WAS FOR THE "SOLE PURPOSE  ...  TO COMPEL THOSE
(WITH MARKET OUTLETS)  ...  TO PURCHASE GAS FROM POTENTIAL PRODUCERS"
WHO HAVE NO MARKET.  THIS WAS NOT DEEMED TO BE REASONABLY RELATED TO
THE CONSERVATION OF GAS OR THE PROTECTION OF CORRELATIVE RIGHTS.  IN
THE RETIREMENT BOARD CASE, THE POOLING PRINCIPLE WAS INVOLVED BUT WAS
FOUND TO BE INVALID BECAUSE THE BURDENS ON THE ROADS WERE NOT EQUALIZED
WITH THE BENEFITS.  ENTRY ON SERVICE WAS MADE AT DIFFERENT AGE LEVELS
FOR DIFFERENT ROADS.  EMPLOYEES SEVENTY OR OLDER WERE REQUIRED TO
RETIRE.  SOME ROADS HAD NONE.  SOLVENT AND INSOLVENT ROADS WERE LIABLE
ALIKE.  ALL CARRIERS WERE TREATED AS A SINGLE EMPLOYER.  IT WAS THESE
PROVISIONS, DEEMED UNEQUAL, WHICH LED TO THE CONCLUSION THAT THE MANNER
OF POOLING OF FUNDS DENIED DUE PROCESS.  IN THIS CASE, THE POOLING HAS
DIFFERENTIALS TO COVER THE VARIATIONS OF QUALITY AND LOCATION. 

C. DELEGATION.  - THERE ARE THREE ISSUES OF DELEGATION PRESENTED:
(1) THE DELEGATION OF AUTHORITY TO THE SECRETARY OF AGRICULTURE TO
ESTABLISH MARKETING AREAS; (2) THE DELEGATION OF AUTHORITY TO PRODUCERS
TO APPROVE A MARKETING ORDER WITHOUT AN AGREEMENT OF HANDLERS; AND (3)
THE DELEGATION OF AUTHORITY TO COOPERATIVES TO CAST THE VOTES OF
PRODUCER PATRONS. 

FROM THE EARLIEST DAYS THE CONGRESS HAS BEEN COMPELLED TO LEAVE TO
THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT AUTHORITY TO DETERMINE
FACTS WHICH WERE TO PUT LEGISLATION INTO EFFECT AND THE DETAILS OF
REGULATIONS WHICH WOULD IMPLEMENT THE MORE GENERAL ENACTMENTS.  IT IS
WELL SETTLED, THEREFORE, THAT IT IS NO ARGUMENT AGAINST THE
CONSTITUTIONALITY OF AN ACT TO SAY THAT IT DELEGATES BROAD POWERS TO
EXECUTIVES TO DETERMINE THE DETAILS OF ANY LEGISLATIVE SCHEME.  THIS
NECESSARY AUTHORITY HAS NEVER BEEN DENIED.  FN60  IN DEALING WITH
LEGISLATION INVOLVING QUESTIONS OF ECONOMIC ADJUSTMENT, EACH ENACTMENT
MUST BE CONSIDERED TO DETERMINE WHETHER IT STATES THE PURPOSE WHICH THE
CONGRESS SEEKS TO ACCOMPLISH AND THE STANDARDS BY WHICH THAT PURPOSE IS
TO BE WORKED OUT WITH SUFFICIENT EXACTNESS TO ENABLE THOSE AFFECTED TO
UNDERSTAND THESE LIMITS.  WITHIN THESE TESTS THE CONGRESS NEEDS SPECIFY
ONLY SO FAR AS IS REASONABLY PRACTICABLE.  FN61  THE PRESENT ACT, WE
BELIEVE, SATISFIES THESE TESTS. 

1.  DELEGATION TO THE SECRETARY OF AGRICULTURE.  - THE PURPOSE OF THE
ACT IS "TO ESTABLISH AND MAINTAIN SUCH ORDERLY MARKETING CONDITIONS FOR
AGRICULTURAL COMMODITIES IN INTERSTATE COMMERCE AS WILL ESTABLISH
PRICES TO FARMERS AT A LEVEL THAT WILL GIVE AGRICULTURAL COMMODITIES A
PURCHASING POWER WITH RESPECT TO ARTICLES THAT FARMERS BUY, EQUIVALENT
TO THE PURCHASING POWER OF AGRICULTURAL COMMODITIES IN THE BASE
PERIOD."  TO ACCOMPLISH THIS, THE SECRETARY OF AGRICULTURE IS DIRECTED
TO ISSUE ORDERS, WHENEVER HE HAS REASON TO BELIEVE THE ISSUANCE OF AN
ORDER WILL TEND TO EFFECTUATE THE DECLARED POLICY OF THE ACT.  UNLIKE
THE LANGUAGE OF THE NATIONAL INDUSTRIAL RECOVERY ACT CONDEMNED IN THE
SCHECHTER CASE, PAGE 538, THE TESTS HERE TO DETERMINE THE PURPOSE AND
THE POWERS DEPENDENT UPON THAT CONCLUSION ARE DEFINED.  IN THE RECOVERY
ACT THE DECLARATION OF POLICY WAS COUCHED IN MOST GENERAL TERMS.  FN62
IN THIS ACT IT IS TO RESTORE PARITY PRICES, SEC. 2.  UNDER THE RECOVERY
ACT, GENERAL WELFARE MIGHT BE SOUGHT THROUGH CODES OF ANY INDUSTRY,
FORMULATED TO EXPRESS STANDARDS OF FAIR COMPETITION FOR THE BUSINESSES
COVERED.  HERE THE TERMS OF ORDERS ARE LIMITED TO THE SPECIFIC
PROVISIONS, MINUTELY SET OUT IN SEC. 8C (5) AND (7).  WHILE
CONSIDERABLE FLEXIBILITY IS PROVIDED BY SEC. 8C (7)(D), IT GIVES
OPPORTUNITY ONLY TO INCLUDE PROVISIONS AUXILIARY TO THOSE DEFINITELY
SPECIFIED. 

THE SECRETARY IS NOT PERMITTED FREEDOM OF CHOICE AS TO THE
COMMODITIES WHICH HE MAY ATTEMPT TO AID BY AN ORDER.  THE ACT, SEC. 8C
(2), LIMITS HIM TO MILK, FRESH FRUITS EXCEPT APPLES, TOBACCO, FRESH
VEGETABLES, SOYBEANS AND NAVAL STORES.  THE ACT AUTHORIZES A MARKETING
AGREEMENT AND ORDER TO BE ISSUED FOR SUCH PRODUCTION OR MARKETING
REGIONS OR AREAS AS ARE PRACTICABLE.  A CITY MILKSHED SEEMS
HOMOGENEOUS.  THIS STANDARD OF PRACTICALITY IS A LIMIT ON THE POWER TO
ISSUE ORDERS.  IT DETERMINES WHEN AN ORDER MAY BE PROMULGATED. 

IT IS FURTHER TO BE OBSERVED THAT THE ORDER COULD NOT BE AND WAS NOT
ISSUED UNTIL AFTER THE HEARING AND FINDINGS AS REQUIRED BY SEC. 8C
(4).  PUBLIC HEARINGS WERE HELD AT ALBANY, MALONE, SYRACUSE, ELMIRA,
AND NEW YORK FROM MAY 16 TO JUNE 7, 1938, WITH FOUR DAYS' RECESS. 
NEARLY THREE THOUSAND PAGES OF TESTIMONY WERE INTRODUCED, EIGHTY-EIGHT
DOCUMENTARY EXHIBITS AND SOME TWENTY BRIEFS BY INTERESTED PARTIES WERE
FILED.  ON JULY 23, 1938, THE SECRETARY, IN THE FEDERAL REGISTER,
NOTIFIED THE PUBLIC OF HIS FINDINGS AND THE TERMS OF THE ORDER AND
AGAIN INVITED COMMENT.  NUMEROUS PARTIES AGAIN FILED BRIEFS.  A RIGHT
BY STATUTE IS GIVEN HANDLERS TO OBJECT TO THE SECRETARY TO ANY
PROVISION OF AN ORDER AS NOT "IN ACORDANCE WITH LAW," WITH THE
PRIVILEGE OF APPEAL TO THE COURTS.  SEC. 8C (15)(A) AND (B).  EVEN
THOUGH PROCEDURAL SAFEGUARDS CANNOT VALIDATE AN UNCONSTITUTIONAL
DELEGATION, THEY DO FURNISH PROTECTION AGAINST AN ARBITRARY USE OF
PROPERLY DELEGATED AUTHORITY.  FN63 

A FURTHER PROVISION OF THE ACT IS TO BE NOTED AS IT WAS EMPLOYED AS A
STANDARD TO DETERMINE THE MINIMUM PRICE.  THIS IS SEC. 8C (18).  ACTING
UNDER THIS SECTION, THE SECRETARY FIXED A FLUCTUATING MINIMUM PRICE
BASED UPON WHOLESALE BUTTER PRICES IN NEW YORK.  WHILE IT IS TRUE THAT
THE DETERMINATION OF PRICE UNDER THIS SECTION HAS A LESS DEFINITE
STANDARD THAN THE PARITY TESTS OF SECS. 2 AND 8E, WE CANNOT SAY THAT IT
IS BEYOND THE POWER OF THE CONGRESS TO LEAVE THIS DETERMINATION TO A
DESIGNATED ADMINISTRATOR, WITH THE STANDARDS NAMED.  THE SECRETARY MUST
HAVE FIRST DETERMINED THE PRICES IN ACCORDANCE WITH SEC. 2 AND SEC. 8E,
THAT IS, THE PRICES THAT WILL GIVE THE COMMODITY A PURCHASING POWER
EQUIVALENT TO THAT OF THE BASE PERIOD, CONSIDERING THE PRICE AND SUPPLY
OF FEED AND OTHER PERTINENT ECONOMIC CONDITIONS AFFECTING THE MILK
MARKET IN THE AREA.  IF HE FINDS THE PRICE SO DETERMINED UNREASONABLE,
IT IS TO BE FIXED AT A LEVEL WHICH WILL REFLECT SUCH FACTORS, PROVIDE
ADEQUATE QUANTITIES OF WHOLESOME MILK AND BE IN THE PUBLIC INTEREST. 
THIS PRICE CANNOT BE DETERMINED BY MATHEMATICAL FORMULA BUT THE
STANDARDS GIVE AMPLE INDICATIONS OF THE VARIOUS FACTORS TO BE
CONSIDERED BY THE SECRETARY.    2.  DELEGATION TO PRODUCERS.  - UNDER
SEC. 8C(9)(B) OF THE ACT IT IS PROVIDED THAT ANY ORDER SHALL BECOME
EFFECTIVE NOTWITHSTANDING THE FAILURE OF 50 PERCENT OF THE HANDLERS TO
APPROVE A SIMILAR AGREEMENT, IF THE SECRETARY OF AGRICULTURE WITH THE
APPROVAL OF THE PRESIDENT DETERMINES, AMONG OTHER THINGS, THAT THE
ISSUANCE OF THE ORDER IS APPROVED BY TWO-THIRDS OF THE PRODUCERS
INTERESTED OR BY INTERESTED PRODUCERS OF TWO-THIRDS OF THE VOLUME
PRODUCED FOR THE MARKET OF THE SPECIFIED PRODUCTION AREA.  BY
SUBSECTION 19 IT IS PROVIDED THAT FOR THE PURPOSE OF ASCERTAINING
WHETHER THE ISSUANCE OF SUCH ORDER IS APPROVED "THE SECRETARY MAY
CONDUCT A REFERENDUM AMONG PRODUCERS."  THE OBJECTION IS MADE THAT THIS
IS AN UNLAWFUL DELEGATION TO PRODUCERS OF THE LEGISLATIVE POWER TO PUT
AN ORDER INTO EFFECT IN A MARKET.  IN CONSIDERING THIS QUESTION, WE
MUST ASSUME THAT THE CONGRESS HAD THE POWER TO PUT THIS ORDER INTO
EFFECT WITHOUT THE APPROVAL OF ANYONE.  WHETHER PRODUCER APPROVAL BY
ELECTION IS NECESSARY OR NOT, A QUESTION WE RESERVE, A REQUIREMENT OF
SUCH APPROVAL WOULD NOT BE AN INVALID DELEGATION.  FN64 

3.  AUTHORIZATION OF COOPERATIVES TO CAST THE VOTES OF PRODUCER
PATRONS.  - THIS OBJECTION, TOO, FALLS BEFORE THE ANSWERING ARGUMENT
THAT INASMUCH AS CONGRESS COULD PLACE THE ORDER IN EFFECT WITHOUT ANY
VOTE, IT IS PERMISSIBLE FOR IT TO PROVIDE FOR APPROVAL OR DISAPPROVAL
IN SUCH WAY OR MANNER AS IT MAY CHOOSE. 

COOPERATIVES IN THE EQUALIZATION FUND.  - THE DEFENDANT, CENTRAL NEW
YORK COOPERATIVE ASSOCIATION, DENIES LIABILITY UNDER ARTICLES VI, VII
AND VIII OF THE ORDER ON THE GROUND THAT IT IS NOT LIABLE TO PAY ITS
NET POOL OBLIGATION INTO THE ADMINISTRATIVE FUND OR TO MEET THE
EXPENSES OF ADMINISTRATION.  THE ASSERTED REASON FOR ITS FREEDOM FROM
LIABILITY IS THAT IT IS A COOPERATIVE COMPOSED OF MILK PRODUCERS AND
DISTRIBUTES THE MILK OF ITS MEMBERS AND OTHERS AS AGENT. 

THE COOPERATIVE OWNS NO FARMS.  ITS MEMBERS ARE DAIRY FARMERS.  BY
THEIR CONTRACT THEY AGREE "TO DELIVER  ...  ALL  ...  MILK PRODUCED
...  WHICH SAID MILK IS TO BE MARKETED AND DISTRIBUTED BY THE
(COOPERATIVE)  ...  "  THE LATTER "AGREES TO PAY  ...  FOR THE MILK
...  A PRICE  ...  BASED UPON THE AMOUNT RECEIVED  ...  LESS THE
EXPENSES  ...  "  NONMEMBERS' MILK IS MARKETED UNDER THE SAME
CONTRACT.  THE COOPERATIVE LEASES RECEIVING AND DISTRIBUTING FACILITIES
FROM A BUSINESS CORPORATION.  THE MILK IS RECEIVED BY THE COOPERATIVE
AT RECEIVING PLANTS AND SHIPPED TO THE CITY DEPOT.  IT DISTRIBUTES
THROUGH OTHER BUSINESS CORPORATIONS WHICH ARE WHOLLY-OWNED SUBSIDIARIES
OF THE COOPERATIVE.  THESE DISTRIBUTING SUBSIDIARIES USE THE LEASED
PHYSICAL FACILITIES UNDER VERBAL CONTRACTS WITH THE COOPERATIVE.  THE
COOPERATIVE RECEIVES THE NET AMOUNT FROM THE SALES AND DISTRIBUTES TO
ITS PATRONS UNDER LICENSE FROM THE DIRECTOR OF THE DIVISION OF MILK
CONTROL OF NEW YORK PERMITTING THE MARKETING IN THE MANNER DESCRIBED. 

MINIMUM PRICES WHICH ALL HANDLERS SHALL PAY FOR MILK PURCHASED FROM
PRODUCERS.  SECTION 8C (5)(C) AUTHORIZES THE EQUALIZATION POOL AND THE
HANDLERS' PAYMENT TO THIS SETTLEMENT FUND.  IT IS URGED THAT
COOPERATIVES WHICH MERELY ACT AS AGENTS FOR THEIR MEMBERS ARE NOT
INCLUDED IN HANDLERS PURCHASING FROM PRODUCERS.  THIS IS SAID TO BE
DEFINITELY SHOWN BY THE PROVISIONS OF SEC. 8C (5)(F) PROVIDING THAT
NOTHING CONTAINED IN THE SUBSECTION SHALL BE CONSTRUED TO PREVENT A
CAPPER-VOLSTEAD COOPERATIVE FROM MAKING DISTRIBUTION TO ITS "PRODUCERS
IN ACCORDANCE WITH THE CONTRACT."  THE ORDER DEFINES A HANDLER AS
INCLUDING A COOPERATIVE ASSOCIATION "WITH RESPECT TO ANY MILK RECEIVED
FROM PRODUCERS AT ANY PLANT OPERATED BY SUCH ASSOCIATION OR WITH
RESPECT TO ANY MILK WHICH IT CAUSES TO BE DELIVERED" TO OTHER
HANDLERS.  UNDER THE PROVISIONS OF THE ORDER, ARTICLE VII, SECS. 8 AND
9, COOPERATIVE HANDLERS AS OTHER HANDLERS EQUALIZE THEIR PURCHASES BY
PAYMENT INTO THE PRODUCER SETTLEMENT FUND, EVEN THOUGH THEY ARE NOT
REQUIRED TO PAY THE UNIFORM PRICE TO THEIR PRODUCERS BY REASON OF THE
EXCEPTION OF ARTICLE VII, SEC. 1, AND THE PROVISIONS OF SEC. 8C (5)(F),
AS EXPLAINED AT PAGE 561. 

COOPERATIVE CONTRACTS ARE OF TWO GENERAL TYPES, SALE AND AGENCY. 
FN65  THE CENTRAL NEW YORK COOPERATIVE OPERATES UNDER THE AGENCY TYPE. 

IT IS OBVIOUS THAT THE USE OF THE WORD "PURCHASED" IN THE ACT, SEC.
8C (5)(A) AND (C), WOULD NOT EXCLUDE THE "SALE" TYPE OF COOPERATIVE. 
WHEN SEC. 8C (5)(F) WAS DRAWN, HOWEVER, IT WAS MADE TO APPLY TO BOTH
THE "SALE" AND "AGENCY" TYPE WITHOUT DISTINCTION.  THIS WOULD INDICATE
THERE HAD BEEN NO INTENTION TO DISTINGUISH BETWEEN THE TWO TYPES BY (A)
AND (C).  THE SECTION WHICH AUTHORIZES ALL ORDERS, SEC. 8C (1), MAKES
NO DISTINCTION.  THE ORDERS ARE TO BE APPLICABLE TO "PROCESSORS,
ASSOCIATIONS OF PRODUCERS, AND OTHERS ENGAGED IN THE HANDLING" OF
COMMODITIES.  THE REPORTS ON THE BILL SHOW NO EFFORT TO DIFFERENTIATE. 
FN66  NEITHER DO THE DEBATES IN CONGRESS.  THE STATUTORY PROVISIONS FOR
EQUALIZATION OF THE BURDENS OF SURPLUS WOULD BE RENDERED NUGATORY BY
THE EXCEPTION OF "AGENCY" COOPERATIVES.  THE ADMINISTRATIVE
CONSTRUCTION HAS BEEN TO INCLUDE SUCH ORGANIZATIONS AS HANDLERS.  FN67
WITH THIS WE AGREE.  AS HERE USED THE WORD "PURCHASED" MEANS "ACQUIRED
FOR MARKETING."  SUBSECTION (A) CANNOT BE CONSTRUED AS FREEING AGENTS,
COOPERATIVE OR PROPRIETARY, FROM THE REQUIREMENT TO ACCOUNT AT THE
MINIMUM PRICES FOR MILK HANDLED. 

AS A COROLLARY THE CONTENTION IS MADE ALSO BY CENTRAL COOPERATIVE
THAT NO COOPERATIVE MAY BE REQUIRED TO PAY ITS SURPLUS RECEIPTS OVER
UNIFORM PRICES INTO THE EQUALIZATION FUND.  THIS, TOO, IS BASED UPON A
CONSTRUCTION OF SEC. 8C (5)(F) AS PERMITTING A COOPERATIVE TO MAKE
SETTLEMENT WITH ITS MEMBERS IN ACCORDANCE WITH THE TERMS OF ITS OWN
CONTRACT WITH THEM.  IF THE COOPERATIVE MEMBERS WERE FREED OF THE
BURDEN OF CARRYING THEIR PROPORTION OF MILK GOING TO MANUFACTURING USE,
THE DISCRIMINATION IN THEIR FAVOR WOULD BE MOST STRONGLY MARKED.  SUCH
A CONSTRUCTION IS NOT REQUIRED.  COOPERATIVES ARE COVERED BY SEC. 8C
(1) AND (5)(A) AND (B), AND BY THE PROVISIONS OF THE ORDER, EXCEPT AS
TO THE PAYMENT OF THE UNIFORM PRICE.  ANY PAYMENTS BELOW THE UNIFORM
PRICE FALL ON THEIR MEMBERS.  WE ARE OF THE VIEW THAT THE
ADMINISTRATIVE CONSTRUCTION IS CORRECT AND THAT THE "NET PROCEEDS" OF
(F) REFER TO THE RESULT OF THE COOPERATIVE SALES IN THE MARKETING AREA
AFTER COMPLYING WITH THE EQUALIZATION REQUIREMENTS. 

THE DEFENDANT, CENTRAL NEW YORK COOPERATIVE ASSOCIATION, RAISES FOR
ITSELF A FINAL POINT.  IN DETERMINING THE NET POOL OBLIGATION OF ANY
HANDLER FOR MILK RECEIVED FROM PRODUCERS,  FN68  THE HANDLER IS
AUTHORIZED TO SUBTRACT PRO RATA OUT OF EACH CLASS FROM THE MILK
INVOLVED IN THE POOL "THE QUANTITY OF MILK RECEIVED FROM THE HANDLER'S
OWN FARM."  WE HAVE DETERMINED THAT THIS COOPERATIVE, THOUGH MARKETING
MILK UNDER AN AGENCY CONTRACT WITH ITS MEMBERS, IS A HANDLER SUBJECT TO
THE ACT AND ORDER.  THE COOPERATIVE ARGUES THAT AS ITS MEMBERS,
FARMERS, WOULD NOT NEED TO ACCOUNT TO THE POOL FOR THEIR PERSONAL SALES
TO CONSUMERS, THE COOPERATIVE, BEING UTILIZED AS AN AGENT TO MARKET THE
FARMERS' MILK, IS UNDER NO OBLIGATION TO CONTRIBUTE TO EQUALIZATION. 
AS THE COOPERATIVE DOES NOT HAVE ITS OWN FARM BUT IS ITSELF A HANDLER
UNDER THE ACT, IT MUST PAY INTO THE PRODUCER SETTLEMENT FUND. 

INASMUCH AS ALL THE DEFENDANTS IN THESE APPEALS ARE HANDLING MILK IN
INTERSTATE COMMERCE, THE PETITION FOR THE ENFORCEMENT OF OFFICIAL ORDER
NO. 126, ISSUED UNDER C. 383 OF THE LAWS OF 1937 OF THE STATE OF NEW
YORK, CONCERNING MILK NOT COVERED BY ORDER NO. 27 OF THE SECRETARY OF
AGRICULTURE, SHOULD BE DISMISSED. 

THE ORDER OF THE DISTRICT COURT IN NOS. 771, 827 AND 828 IS REVERSED
AND THE CAUSES ARE REMANDED TO THAT COURT WITH INSTRUCTIONS TO ENTER AN
ORDER SPECIFICALLY ENFORCING UP TO THE TIME OF SUSPENSION THE
PROVISIONS OF ORDER NO. 27, ISSUED BY THE SECRETARY OF AGRICULTURE
AUGUST 15, 1938, REGULATING THE HANDLING OF MILK IN THE NEW YORK
MARKETING AREA, AS TO ALL THE DEFENDANTS AND ENJOINING DEFENDANTS,
THEIR OFFICERS, AGENTS AND SERVANTS, FROM FURTHER VIOLATION OF THE
ORDER. 

THE ORDER OF THE DISTRICT COURT IN DISMISSING THE PETITION OF HOLTON
V. NOYES, AS COMMISSIONER OF AGRICULTURE AND MARKETS OF THE STATE OF
NEW YORK, IS AFFIRMED. 

FN1  ACT OF JUNE 3, 1937, 50 STAT. 246. 

FN2  AS AUTHORIZED BY N.Y. LAWS 1937, C. 383.  SEE NOYES V. ERIE &
WYOMING FARMERS CO-OP., 170 MISC. 42; 10 N.Y.S.2D 114. 

FN3  SEC. 2, ACT OF AUG. 24, 1937, 50 STAT. 752; 28 U.S.C. SEC.
349A. 

FN4  PERTINENT PORTIONS OF THE ACT ARE AS FOLLOWS: 

ACT, SEC. 8C (1).  "THE SECRETARY OF AGRICULTURE SHALL, SUBJECT TO
THE PROVISIONS OF THIS SECTION, ISSUE, AND FROM TIME TO TIME AMEND,
ORDERS APPLICABLE TO PROCESSORS, ASSOCIATIONS OF PRODUCERS, AND OTHERS
ENGAGED IN THE HANDLING OF ANY AGRICULTURAL COMMODITY OR PRODUCT
THEREOF SPECIFIED IN SUBSECTION (2) OF THIS SECTION.  ...  " 

(2)  "ORDERS ISSUED PURSUANT TO THIS SECTION SHALL BE APPLICABLE ONLY
TO THE FOLLOWING AGRICULTURAL COMMODITIES AND THE PRODUCTS THEREOF
(EXCEPT PRODUCTS OF NAVAL STORES), OR TO ANY REGIONAL, OR MARKET
CLASSIFICATION OF ANY SUCH COMMODITY OR PRODUCT:  MILK, FRUITS
(INCLUDING PECANS AND WALNUTS BUT NOT INCLUDING APPLES AND NOT
INCLUDING FRUITS, OTHER THAN OLIVES, FOR CANNING), TOBACCO, VEGETABLES
(NOT INCLUDING VEGETABLES, OTHER THAN ASPARAGUS, FOR CANNING), SOYBEANS
AND NAVAL STORES AS INCLUDED IN THE NAVAL STORES ACT AND STANDARDS
ESTABLISHED THEREUNDER (INCLUDING REFINED OR PARTIALLY REFINED
OLEORESIN)." 

(3)  "WHENEVER THE SECRETARY OF AGRICULTURE HAS REASON TO BELIEVE
THAT THE ISSUANCE OF AN ORDER WILL TEND TO EFFECTUATE THE DECLARED
POLICY OF THIS TITLE WITH RESPECT TO ANY COMMODITY OR PRODUCT THEREOF
SPECIFIED IN SUBSECTION (2) OF THIS SECTION, HE SHALL GIVE DUE NOTICE
OF AND AN OPPORTUNITY FOR A HEARING UPON A PROPOSED ORDER." 

(4)  "AFTER SUCH NOTICE AND OPPORTUNITY FOR HEARING, THE SECRETARY OF
AGRICULTURE SHALL ISSUE AN ORDER IF HE FINDS, AND SETS FORTH IN SUCH
ORDER, UPON THE EVIDENCE INTRODUCED AT SUCH HEARING (IN ADDITION TO
SUCH OTHER FINDINGS AS MAY BE SPECIFICALLY REQUIRED BY THIS SECTION)
THAT THE ISSUANCE OF SUCH ORDER AND ALL OF THE TERMS AND CONDITIONS
THEREOF WILL TEND TO EFFECTUATE THE DECLARED POLICY OF THIS TITLE WITH
RESPECT TO SUCH COMMODITY." 

(5)  "IN THE CASE OF MILK AND ITS PRODUCTS, ORDERS ISSUED PURSUANT TO
THIS SECTION SHALL CONTAIN ONE OR MORE OF THE FOLLOWING TERMS AND
CONDITIONS, AND (EXCEPT AS PROVIDED IN SUBSECTION (7)) NO OTHERS: 

"(A)  CLASSIFYING MILK IN ACCORDANCE WITH THE FORM IN WHICH OR THE
PURPOSE FOR WHICH IT IS USED, AND FIXING, OR PROVIDING A METHOD FOR
FIXING, MINIMUM PRICES FOR EACH SUCH USE CLASSIFICATION WHICH ALL
HANDLERS SHALL PAY, AND THE TIME WHEN PAYMENTS SHALL BE MADE, FOR MILK
PURCHASED FROM PRODUCERS OR ASSOCIATIONS OF PRODUCERS.  SUCH PRICES
SHALL BE UNIFORM AS TO ALL HANDLERS, SUBJECT ONLY TO ADJUSTMENTS FOR
(1) VOLUME, MARKET, AND PRODUCTION DIFFERENTIALS CUSTOMARILY APPLIED BY
THE HANDLERS SUBJECT TO SUCH ORDER, (2) THE GRADE OR QUALITY OF THE
MILK PURCHASED, AND (3) THE LOCATIONS AT WHICH DELIVERY OF SUCH MILK,
OR ANY USE CLASSIFICATION THEREOF, IS MADE TO SUCH HANDLERS. 

"(B)  PROVIDING: 

     .         .         .         .         . 

"(II) FOR THE PAYMENT TO ALL PRODUCERS AND ASSOCIATIONS OF PRODUCERS
DELIVERING MILK TO ALL HANDLERS OF UNIFORM PRICES FOR ALL MILK SO
DELIVERED, IRRESPECTIVE OF THE USES MADE OF SUCH MILK BY THE INDIVIDUAL
HANDLER TO WHOM IT IS DELIVERED; 

SUBJECT, IN EITHER CASE, ONLY TO ADJUSTMENTS FOR (A) VOLUME, MARKET,
AND PRODUCTION DIFFERENTIALS CUSTOMARILY APPLIED BY THE HANDLERS
SUBJECT TO SUCH ORDER, (B) THE GRADE OR QUALITY OF THE MILK DELIVERED,
(C) THE LOCATIONS AT WHICH DELIVERY OF SUCH MILK IS MADE, AND (D) A
FURTHER ADJUSTMENT, EQUITABLY TO APPORTION THE TOTAL VALUE OF THE MILK
PURCHASED BY ANY HANDLER, OR BY ALL HANDLERS, AMONG PRODUCERS AND
ASSOCIATIONS OF PRODUCERS, ON THE BASIS OF THEIR MARKETINGS OF MILK
DURING A REPRESENTATIVE PERIOD OF TIME. 

"(C)  IN ORDER TO ACCOMPLISH THE PURPOSES SET FORTH IN PARAGRAPHS (A)
AND (B) OF THIS SUBSECTION (5), PROVIDING A METHOD FOR MAKING
ADJUSTMENTS IN PAYMENTS, AS AMONG HANDLERS (INCLUDING PRODUCERS WHO ARE
ALSO HANDLERS), TO THE END THAT THE TOTAL SUMS PAID BY EACH HANDLER
SHALL EQUAL THE VALUE OF THE MILK PURCHASED BY HIM AT THE PRICES FIXED
IN ACCORDANCE WITH PARAGRAPH (A) HEREOF. 

     .         .         .         .         . 

"(F)  NOTHING CONTAINED IN THIS SUBSECTION (5) IS INTENDED OR SHALL
BE CONSTRUED TO PREVENT A COOPERATIVE MARKETING ASSOCIATION QUALIFIED
UNDER THE PROVISIONS OF THE ACT OF CONGRESS OF FEBRUARY 18, 1922, AS
AMENDED, KNOWN AS THE 'CAPPER-VOLSTEAD ACT', ENGAGED IN MAKING
COLLECTIVE SALES OR MARKETING OF MILK OR ITS PRODUCTS FOR THE PRODUCERS
THEREOF, FROM BLENDING THE NET PROCEEDS OF ALL ITS SALES IN ALL MARKETS
IN ALL USE CLASSIFICATIONS, AND MAKING DISTRIBUTION THEREOF TO ITS
PRODUCERS IN ACCORDANCE WITH THE CONTRACT BETWEEN THE ASSOCIATION AND
ITS PRODUCERS:  PROVIDED, THAT IT SHALL NOT SELL MILK OR ITS PRODUCTS
TO ANY HANDLER FOR USE OR CONSUMPTION IN ANY MARKET AT PRICES LESS THAN
THE PRICES FIXED PURSUANT TO PARAGRAPH (A) OF THIS SUBSECTION (5) FOR
SUCH MILK.    "(G)  NO MARKETING AGREEMENT OR ORDER APPLICABLE TO MILK
AND ITS PRODUCTS IN ANY MARKETING AREA SHALL PROHIBIT OR IN ANY MANNER
LIMIT, IN THE CASE OF THE PRODUCTS OF MILK, THE MARKETING IN THAT AREA
OF ANY MILK OR PRODUCT THEREOF PRODUCED IN ANY PRODUCTION AREA IN THE
UNITED STATES." 

(N.B. (6) RELATES TO PRODUCTS OTHER THAN MILK.) 

(7)  "IN THE CASE OF THE AGRICULTURAL COMMODITIES AND THE PRODUCTS
THEREOF SPECIFIED IN SUBSECTION (2) ORDERS SHALL CONTAIN ONE OR MORE OF
THE FOLLOWING TERMS AND CONDITIONS:    "(A)  PROHIBITING UNFAIR METHODS
OF COMPETITION AND UNFAIR TRADE PRACTICES IN THE HANDLING THEREOF. 

"(B)  PROVIDING THAT (EXCEPT FOR MILK AND CREAM TO BE SOLD FOR
CONSUMPTION IN FLUID FORM) SUCH COMMODITY OR PRODUCT THEREOF, OR ANY
GRADE, SIZE, OR QUALITY THEREOF SHALL BE SOLD BY THE HANDLERS THEREOF
ONLY AT PRICES FILED BY SUCH HANDLERS IN THE MANNER PROVIDED IN SUCH
ORDER. 

"(C)  PROVIDING FOR THE SELECTION BY THE SECRETARY OF AGRICULTURE, OR
A METHOD FOR THE SELECTION, OF AN AGENCY OR AGENCIES AND DEFINING THEIR
POWERS AND DUTIES, WHICH SHALL INCLUDE ONLY THE POWERS: 

"(I)  TO ADMINISTER SUCH ORDER IN ACCORDANCE WITH ITS TERMS AND
PROVISIONS; 

"(II)  TO MAKE RULES AND REGULATIONS TO EFFECTUATE THE TERMS AND
PROVISIONS OF SUCH ORDER; 

"(III)  TO RECEIVE, INVESTIGATE, AND REPORT TO THE SECRETARY OF
AGRICULTURE COMPLAINTS OF VIOLATIONS OF SUCH ORDER; AND 

"(IV)  TO RECOMMEND TO THE SECRETARY OF AGRICULTURE AMENDMENTS TO
SUCH ORDER. 

NO PERSON ACTING AS A MEMBER OF AN AGENCY ESTABLISHED PURSUANT TO
THIS PARAGRAPH (C) SHALL BE DEEMED TO BE ACTING IN AN OFFICIAL
CAPACITY, WITHIN THE MEANING OF SECTION 10(G) OF THIS TITLE, UNLESS
SUCH PERSON RECEIVES COMPENSATION FOR HIS PERSONAL SERVICES FROM FUNDS
OF THE UNITED STATES. 

"(D)  INCIDENTAL TO, AND NOT INCONSISTENT WITH, THE TERMS AND
CONDITIONS SPECIFIED IN SUBSECTIONS (5), (6), AND (7) AND NECESSARY TO
EFFECTUATE THE OTHER PROVISIONS OF SUCH ORDER." 

(18)  "THE SECRETARY OF AGRICULTURE, PRIOR TO PRESCRIBING ANY TERM IN
ANY MARKETING AGREEMENT OR ORDER, OR AMENDMENT THERETO, RELATING TO
MILK OR ITS PRODUCTS, IF SUCH TERM IS TO FIX MINIMUM PRICES TO BE PAID
TO PRODUCERS OR ASSOCIATIONS OF PRODUCERS, OR PRIOR TO MODIFYING THE
PRICE FIXED IN ANY SUCH TERM, SHALL ASCERTAIN, IN ACCORDANCE WITH
PURCHASING POWER EQUIVALENT TO THEIR PURCHASING POWER DURING THE BASE
PERIOD.  THE LEVEL OF PRICES WHICH IT IS DECLARED TO BE THE POLICY OF
CONGRESS TO ESTABLISH IN SECTION 2 AND SECTION 8E SHALL, FOR THE
PURPOSES OF SUCH AGREEMENT, ORDER, OR AMENDMENT, BE SUCH LEVEL AS WILL
REFLECT THE PRICE OF FEEDS, THE AVAILABLE SUPPLIES OF FEEDS, AND OTHER
ECONOMIC CONDITIONS WHICH AFFECT MARKET SUPPLY AND DEMAND, FOR MILK OR
ITS PRODUCTS IN THE MARKETING AREA TO WHICH THE CONTEMPLATED MARKETING
AGREEMENT, ORDER, OR AMENDMENT RELATES.  WHENEVER THE SECRETARY FINDS,
UPON THE BASIS OF THE EVIDENCE ADDUCED AT THE HEARING REQUIRED BY
SUCH COMMODITIES A PURCHASING POWER EQUIVALENT TO THEIR PURCHASING
POWER DURING THE BASE PERIOD AS DETERMINED PURSUANT TO SECTION 2 AND
AVAILABLE SUPPLIES OF FEEDS, AND OTHER ECONOMIC CONDITIONS WHICH AFFECT
MARKET SUPPLY AND DEMAND FOR MILK AND ITS PRODUCTS IN THE MARKETING
AREA TO WHICH THE CONTEMPLATED AGREEMENT, ORDER, OR AMENDMENT RELATES,
HE SHALL FIX SUCH PRICES AS HE FINDS WILL REFLECT SUCH FACTORS, INSURE
A SUFFICIENT QUANTITY OF PURE AND WHOLESOME MILK, AND BE IN THE PUBLIC
INTEREST.  THEREAFTER, AS THE SECRETARY FINDS NECESSARY ON ACCOUNT OF
CHANGED CIRCUMSTANCES, HE SHALL, AFTER DUE NOTICE AND OPPORTUNITY FOR
HEARING, MAKE ADJUSTMENTS IN SUCH PRICES." 

FN5  ACT OF MAY 12, 1933, 48 STAT. 31, AS AMENDED AUG. 24, 1935, 49
STAT. 750. 

FN6  SEC. 8C(2). 

FN7  SEC. 8C(4). 

FN8  SEC. 8C (5). 

FN9  SEC. 8C (10). 

FN10  SEC. 8C (8). 

FN11  CERTAIN OF THESE POWERS WERE UPHELD IN NEBBIA V. NEW YORK, 291
U.S. 502. 

FN12  N.Y. LAWS 1937, C. 383. 

FN13  NEBBIA V. NEW YORK, 291 U.S. 502; BALDWIN V. SEELIG, 294 U.S.
511; HEGEMAN FARMS CORP. V. BALDWIN, 293 U.S. 163. 

FN14  PERTINENT PORTIONS ARE AS FOLLOWS: 

ORDER, ARTICLE VI, SEC. 1.  "NET POOL OBLIGATION OF HANDLERS.  - THE
NET POOL OBLIGATION OF ANY HANDLER FOR MILK RECEIVED FROM PRODUCERS
DURING EACH MONTH SHALL BE A SUM OF MONEY COMPUTED FOR SUCH MONTH AS
FOLLOWS: 

"1.  DETERMINE THE TOTAL QUANTITY OF MILK IN EACH CLASS AT EACH
PLANT; 

"2.  SUBTRACT FROM THE QUANTITY OF MILK IN EACH CLASS THE QUANTITY OF
SUCH MILK RECEIVED FROM OTHER PLANTS OR FROM OTHER HANDLERS; 

"3.  SUBTRACT PRO RATA OUT OF EACH CLASS THE QUANTITY OF MILK
RECEIVED FROM THE HANDLER'S OWN FARM; 

"4.  SUBTRACT FROM THE REMAINING QUANTITY OF MILK IN EACH CLASS, THE
QUANTITY OF EACH TO WHICH THE PRICES IN SECTION 1 OF ARTICLE IV DO NOT
APPLY, WHICH RESULT SHALL BE KNOWN AS THE 'NET POOLED MILK' IN EACH
CLASS. 

"5.  MULTIPLY THE TOTAL QUANTITY OF NET POOLED MILK IN EACH CLASS, AT
ALL PLANTS OF THE HANDLER COMBINED, BY THE RESPECTIVE CLASS PRICES SET
FORTH IN SECTION 1 OF ARTICLE IV AND ADD TOGETHER THE RESULTING SUMS; 

     .         . .         .         . 

"8.  DEDUCT 20 CENTS PER HUNDREDWEIGHT FOR ALL NET POOLED MILK
RECEIVED FROM PRODUCERS AT PLANTS IN THE COUNTIES OR PORTIONS OF
COUNTIES LISTED BELOW IN THIS SECTION.  THE RESULT THUS OBTAINED SHALL
BE KNOWN AS THE 'HANDLER'S NET POOL OBLIGATION.'" 

COUNTIES - NEW JERSEY:  HUNTERDON, SOMERSET, ESSEX, UNION, MORRIS,
WARREN, SUSSEX, PASSAIC.  NEW YORK:  COLUMBIA, DUTCHESS, NASSAU,
ORANGE, PUTNAM, SUFFOLK, WESTCHESTER.  CONNECTICUT: LITCHFIELD. 
MASSACHUSETTS:  BERKSHIRE.  TOWNS IN ULSTER COUNTY, NEW YORK:
MARBLETOWN, HURLEY, KINGSTOWN, ULSTER, ROSENDALE, ESOPUS, NEW PALTZ,
LLOYD, GARDINER, PLATTEKILL, MARLBOROUGH, SHAWANGUNK. 

"SEC. 2.  COMPUTATION OF THE UNIFORM PRICE.  - THE MARKET
ADMINISTRATOR SHALL ON OR BEFORE THE 14TH DAY OF EACH MONTH, AUDIT FOR
MATHEMATICAL CORRECTNESS AND OBVIOUS ERRORS THE FINAL REPORT SUBMITTED
FOR THE PRECEDING MONTH BY EACH HANDLER AND, ON THE 14TH DAY OF SUCH
MONTH, COMPUTE FROM ALL OF SUCH CORRECTED REPORTS THE UNIFORM PRICE IN
THE FOLLOWING MANNER: 

"1.  COMBINE INTO ONE TOTAL THE NET POOL OBLIGATIONS OF ALL
HANDLERS; 

"2.  SUBTRACT THE TOTAL OF PAYMENTS REQUIRED TO BE MADE FOR SUCH
MONTH BY SECTION 5 OF ARTICLE VII AND THE TOTAL OF PAYMENTS CLAIMED
PURSUANT TO SECTION 6 OF ARTICLE VII; 

"3.  ADD THE AMOUNT OF CASH IN THE PRODUCER SETTLEMENT FUND; 

"4.  DIVIDE THE RESULT BY THE TOTAL QUANTITY OF MILK REPRESENTED IN
THE SUM OBTAINED PURSUANT TO PARAGRAPH 1 OF THIS SECTION; AND 

"5.  SUBTRACT NOT LESS THAN 4 CENTS NOR MORE THAN 5 CENTS TO PROVIDE
AGAINST THE CONTINGENCY OF ERRORS IN REPORTS AND PAYMENTS OR OF
DELINQUENCIES IN PAYMENTS BY HANDLERS.  THIS RESULT SHALL BE KNOWN AS
THE UNIFORM PRICE FOR SUCH MONTH FOR MILK CONTAINING 3.5 PERCENT
BUTTERFAT RECEIVED FROM PRODUCERS AT PLANTS IN THE 201-210 MILE ZONE." 

ARTICLE VII, SEC. 1.  "TIME OF PAYMENT.  - ON OR BEFORE THE 25TH DAY
OF EACH MONTH EACH HANDLER WHICH IS NOT A COOPERATIVE ASSOCIATION OF
PRODUCERS SHALL MAKE PAYMENT TO EACH PRODUCER FOR ALL MILK DELIVERED BY
SUCH PRODUCER AT ANY PLANT DURING THE PRECEDING MONTH AT NOT LESS THAN
THE UNIFORM PRICE, SUBJECT TO DIFFERENTIALS SET FORTH IN SECTIONS 2 AND
3 OF THIS ARTICLE." 

ARTICLE VII, SEC. 2.  "TRANSPORTATION AND LOCATION DIFFERENTIALS.  -
THE UNIFORM PRICE SHALL BE PLUS OR MINUS THE DIFFERENTIAL SHOWN IN
COLUMN B OF THE SCHEDULE CONTAINED IN SECTION 3 OF ARTICLE IV FOR THE
ZONE OF THE PLANT AS ESTABLISHED FOR THE PURPOSES OF SECTION 3 OF
ARTICLE IV, PLUS 25 CENTS IN THE CASE OF PLANTS LOCATED IN THE COUNTIES
LISTED IN PARAGRAPH 8 OF SECTION 1 OF ARTICLE VI." 

ARTICLE VII, SEC. 5.  "PAYMENTS TO COOPERATIVE ASSOCIATIONS.  - ANY
COOPERATIVE ASSOCIATION OF PRODUCERS MAY APPLY TO THE SECRETARY FOR A
DETERMINATION OF ITS QUALIFICATIONS TO RECEIVE PAYMENTS PURSUANT TO
THIS SECTION BY REASON OF ITS HAVING AND EXERCISING FULL AUTHORITY IN
THE SALE OF THE MILK OF ITS MEMBERS, USING ITS BEST EFFORTS TO SUPPLY,
IN TIMES OF SHORT SUPPLY, CLASS I MILK TO THE MARKETING AREA AND TO
SECURE UTILIZATION OF MILK, IN TIMES OF LONG SUPPLY, IN A MANNER TO
ASSURE THE GREATEST POSSIBLE RETURNS TO ALL PRODUCERS, AND HAVING ITS
ENTIRE ACTIVITIES UNDER THE CONTROL OF ITS MEMBERS.  ...  SUCH PAYMENTS
SHALL BE MADE TO EACH COOPERATIVE ASSOCIATION OF PRODUCERS UNDER THE
FOLLOWING CONDITIONS AND AT THE FOLLOWING RATES: 

"1.  ONE CENT PER HUNDREDWEIGHT OF NET POOLED MILK AT ANY HANDLER'S
PLANT WHICH WAS CAUSED TO BE DELIVERED FROM ITS MEMBERS BY SUCH
ASSOCIATION AND ON WHICH SUCH HANDLER HAS MADE THE REPORTS AND PAYMENTS
REQUIRED BY THIS ORDER. 

"2.  EXCEPT AS SET FORTH IN PARAGRAPH 3 OF THIS SECTION, 2 1/2 CENTS
PER HUNDREDWEIGHT OF NET POOLED MILK AT PLANTS OF OTHER HANDLERS WHICH
WAS REPORTED AND COLLECTED FOR BY SUCH ASSOCIATION. 

"3.  FIVE CENTS PER HUNDREDWEIGHT OF NET POOLED MILK AT PLANTS
OPERATED BY SUCH ASSOCIATION AND, IF, IN ADDITION TO THE OTHER
QUALIFICATIONS, SUCH ASSOCIATION HAS BEEN DETERMINED BY THE SECRETARY
TO HAVE SUFFICIENT PLANT CAPACITY TO RECEIVE ALL THE MILK OF PRODUCERS
WHO ARE MEMBERS AND TO BE WILLING AND ABLE TO RECEIVE MILK FROM
PRODUCERS NOT MEMBERS, 5 CENTS PER HUNDREDWEIGHT OF ANY NET POOLED MILK
WHICH WAS CAUSED BY IT TO BE DELIVERED TO ANY OTHER HANDLER AND WHICH
IS REPORTED AND COLLECTED FOR BY SUCH ASSOCIATION. 

"SEC. 6.  MARKET SERVICE PAYMENT.  - THE MARKET ADMINISTRATOR SHALL
PAY OUT OF THE PRODUCER SETTLEMENT FUND TO ANY HANDLER IMMEDIATELY
AFTER AUDIT OF CLAIM FOR SUCH PAYMENT MADE ON FORMS SUPPLIED BY THE
MARKET ADMINISTRATOR: 

"1. WITH RESPECT TO MILK RECEIVED FROM PRODUCERS AT A PLANT OPERATED
BY SUCH HANDLER EQUIPPED ONLY FOR THE RECEIVING AND SHIPPING OF MILK TO
THE MARKETING AREA, WHICH WAS, DURING ANY MONTH EXCEPT NOVEMBER OR
DECEMBER, MOVED TO A PLANT WHERE IT WAS UTILIZED IN CLASSES II-A, II-B,
III-A, III-B, III-C, III-D, OR, DURING THE MONTH OF OCTOBER, IV-A, AND
FROM WHICH, IF OPERATED BY SUCH HANDLER, NO CLASS I MILK WAS SHIPPED TO
THE MARKETING AREA DURING SUCH MONTH, 23 CENTS PER HUNDREDWEIGHT OF
MILK SO MOVED, PLUS 4 CENTS PER HUNDREDWEIGHT FOR THE FIRST FIVE MILES
OR FRACTION THEREOF, PLUS 1/4 CENT PER HUNDREDWEIGHT PER MILE FOR THE
NEXT 20 MILES, AND PLUS 1/10 OF 1 CENT PER HUNDREDWEIGHT PER ADDITIONAL
MILE, OF THE SHORTEST HIGHWAY DISTANCE BETWEEN THE TWO PLANTS; AND 

"2.  THIRTY CENTS PER HUNDREDWEIGHT OF CLASS I MILK SOLD DURING THE
MONTHS OF NOVEMBER AND DECEMBER IN THE MARKETING AREA WHICH WAS
RECEIVED FROM PRODUCERS AT A PLANT WHICH IS EQUIPPED FOR CONDENSING OR
DRYING MILK AND FROM WHICH, DURING THE MONTHS OF MAY AND JUNE
PRECEDING, IN TERMS OF EQUIVALENT OF MILK RECEIVED AT SUCH PLANT, NO
MILK IN EXCESS OF 10 PERCENT AND NO CREAM IN EXCESS OF 50 PERCENT WAS
SHIPPED TO THE MARKETING AREA." 

FN15  4 FED. REG. 1259. 

FN16  3 FED. REG. 2100. 

FN17  SEC. 8C(12). 

FN18  CF. ISBRANDTSEN-MOLLER CO. V. UNITED STATES, 300 U.S. 139, 145;
CALIFORNIA WATER SERVICE CO. V. REDDING, 304 U.S. 252, 254. 

FN19  ARTICLE VII, SEC. 1. 

FN20  ARTICLE VII, SECS. 5 AND 6. 

FN21  ARTICLE VII, SEC. 1. 

FN22  CURRIN V. WALLACE, 306 U.S. 1, 18; CHICAGO BOARD OF TRADE V.
OLSEN, 262 U.S. 1, 42; OLIVER IRON MINING CO. V. LORD, 262 U.S. 172,
181; GORIEB V. FOX, 274 U.S. 603, 606; CF. CARMICHAEL V. SOUTHERN COAL
CO., 301 U.S. 495, 513; STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548,
598. 

FN23  ARTICLE I, SEC. 1, SUBSEC.  6. 

FN24  42 STAT. 388. 

FN25  UNITED STATES - THE CLAYTON ACT, SEC. 6, 38 STAT. 731; ROBINSON
PATMAN ACT, SEC. 4, 49 STAT. 1528; CAPPER-VOLSTEAD ACT, 42 STAT. 388;
WAR FINANCE CORPORATION ACT, 40 STAT. 506, AS AMENDED 42 STAT. 181,
182; THE GRAIN FUTURES ACT, 42 STAT. 1000; THE AGRICULTURAL MARKETING
ACT, 46 STAT. 91. 

STATES - SEE HANNA, THE LAW OF COOPERATIVE MARKETING ASSOCIATIONS
(1931), C. 3. 

FN26  AGRICULTURAL ADJUSTMENT ACT, SEC. 10(B), 48 STAT. 37, AS
AMENDED BY SEC. 16(B)(1) OF THE ACT OF AUGUST 24, 1935, 49 STAT. 767,
AS ADOPTED BY SEC. 1(H) OF THE ACT OF JUNE 3, 1937, 50 STAT. 246. 

FN27  FLINT V. STONE TRACY CO., 220 U.S. 107, 173; BRUSHABER V. UNION
PACIFIC RAILROAD CO., 240 U.S. 1, 21; CHICAGO BOARD OF TRADE V. OLSEN,
262 U.S. 1, 40; LIBERTY WAREHOUSE CO. V. BURLEY TOBACCO GROWERS
COOPERATIVE ASSN., 276 U.S. 71, 89.  THE GOVERNMENT FURNISHES US WITH A
COLLECTION OF STATE CASES APPROVING THE SPECIAL ADVANTAGES GIVEN CO
OPERATIVES:  TOBACCO GROWERS COOP.  ASSN.  V. JONES, 185 N.C. 265; 117
S.E. 174; KANSAS WHEAT GROWERS V. SCHULTE, 113 KAN. 672; 216 P. 311;
BROWN V. STAPLE COTTON GROWERS CO-OP. ASSN., 132 MISS.  859; 96 SO.
849; NORTHERN WISCONSIN CO-OP. T.P. V. BEKKEDAL, 182 WIS. 571; 197 N.W.
936; DARK TOBACCO GR. CO-OP. ASSN. V. DUNN, 150 TENN. 614; 266 S.W.
308; MINNESOTA WHEAT GROWERS V. HUGGINS, 162 MINN. 471; 203 N.W. 420;
LIST V. BURLEY TOBACCO GROWERS CO-OP. ASSN., 114 OHIO ST. 361; 151 N.E.
471; DARK TOBACCO GROWERS CO-OP. ASSN. V. ROBERTSON, 84 IND. APP. 51;
150 N.E. 106; POTTER V. DARK TOBACCO GROWERS CO-OP., 201 KY. 441; 257
S.W. 33; HARRELL V. CANE GROWERS CO-OP., 160 GA. 30; 126 S.E. 531;
NEBRASKA WHEAT GROWERS V. NORQUEST, 113 NEB. 731; 204 N.W. 798; WARREN
V. ALABAMA FARM B. COTTON ASSN., 213 ALA. 61; 104 SO. 264; MANCHESTER
DAIRY SYSTEM V. HAYWARD, 82 N.H. 193; 132 ATL. 12, 19; CLEAR LAKE CO
OPERATIVE LIVE STOCK ASSN. V. WEIR, 200 IOWA 1293; 206 N.W. 297;
HOLLINGSWORTH V. TEXAS HAY ASSN., 246 S.W. 1068; WASHINGTON CRANBERRY
ASSN. V. MOORE, 117 WASH. 430; 201 P. 773; POULTRY PRODUCERS V. BARLOW,
189 CAL. 278; 208 P. 93; OREGON GROWERS CO-OP. ASSN. V. LENTZ, 107
ORE.  561; 212 P. 811; SOUTH CAROLINA COTTON GROWERS V. ENGLISH, 135
S.C. 19; 133 S.E. 542; MILK PRODUCERS CO. V. BELL, 234 ILL. APP. 222
AND BARNS V. DAIRYMEN'S CO-OPERATIVE ASSN., INC., 220 APP. DIV. (N.Y.) 
624; 222 N.Y.S. 294.    FN28  278 U.S. 515. 

FN29  ID., 523. 

FN30  CF. N.Y. COOPERATIVE CORPORATIONS LAW. 

FN31  RAILROAD CO. V. ELLERMAN, 105 U.S. 166; ALABAMA POWER CO. V.
ICKES, 302 U.S. 464, 480.    FN32  ORDER, ARTICLE VII, SEC. 1. 

FN33  ORDER, ARTICLE VI, SEC. 1. 

FN34  ORDER, ARTICLE VII, SEC. 2. 

FN35  BORDEN'S FARM PRODUCTS CO. V. BALDWIN, 293 U.S. 194, 209;
PACIFIC STATES CO. V. WHITE, 296 U.S. 176, 185. 

FN36  SEC. 8C (1). 

FN37  STAFFORD V. WALLACE, 258 U.S. 495; CHICAGO BOARD OF TRADE V.
OLSEN, 262 U.S. 1; HOUSTON & TEXAS RY. CO. V. UNITED STATES, 234 U.S.
342, 351-2; MINNESOTA RATE CASES, 230 U.S. 352, 399; LABOR BOARD CASES,
301 U.S. 1; CURRIN V. WALLACE, 306 U.S. 1; MULFORD V. SMITH, ANTE, P.
38; NATIONAL LABOR RELATIONS BOARD V. FAINBLATT, 306 U.S. 601. 

FN38  DAHNKE-WALKER MILLING CO. V. BONDURANT, 257 U.S. 282, 290, 291;
LEMKE V. FARMERS' GRAIN CO., 258 U.S. 50, 54; CF. FOSTER-FOUNTAIN
PACKING CO. V. HAYDEL, 278 U.S. 1, 10. 

FN39  CURRIN V. WALLACE, 306 U.S. 1. 

FN40  CONSOLIDATED EDISON CO. V. NATIONAL LABOR RELATIONS BOARD, 305
U.S. 197, 220. 

FN41  MULFORD V. SMITH, SUPRA, NOTE 37. 

FN42  GIBBONS V. OGDEN, 9 WHEAT.  1, 196; MINNESOTA RATE CASES, 230
U.S. 352, 398. 

FN43  WILSON V. NEW, 243 U.S. 332, 346. 

FN44  34 STAT. 589, 49 U.S.C. SEC. 15(1). 

FN45  TAGG BROS. & MOORHEAD V. UNITED STATES, 280 U.S. 420; STAFFORD
V. WALLACE, 258 U.S. 495. 

FN46  MUNN V. ILLINOIS, 94 U.S. 113; BUDD V. NEW YORK, 143 U.S. 517;
BRASS V. NORTH DAKOTA, 153 U.S. 391; GERMAN ALLIANCE INSURANCE CO. V.
LEWIS, 233 U.S. 389; O'GORMAN & YOUNG V. HARTFORD INSURANCE CO., 282
U.S. 251; NEBBIA V. NEW YORK, 291 U.S. 502; WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379; TOWNSEND V. YEOMANS, 301 U.S. 441. 

WOLFF PACKING CO. V. INDUSTRIAL COURT, 262 U.S. 522; TYSON & BRO. V.
BANTON, 273 U.S. 418; FAIRMONT CREAMERY CO. V. MINNESOTA, 274 U.S. 1;
RIBNIK V. MCBRIDE, 277 U.S. 350; WILLIAMS V. STANDARD OIL CO., 278 U.S.
235. 

FN47  NEBBIA V. NEW YORK, 291 U.S. 502, 537. 

FN48  ID. 

FN49  BALDWIN V. SEELIG, 294 U.S. 511. 

FN50  MILK CONTROL BOARD V. EISENBERG FARM PRODUCTS, 306 U.S. 346. 

FN51  293 U.S. 163. 

FN52  BORDEN'S CO. V. TEN EYCK, 297 U.S. 251. 

FN53  NEBBIA V. NEW YORK, 291 U.S. 502; TOWNSEND V. YEOMANS, 301 U.S.
441. 

FN54  SUPRA, NOTE 37. 

FN55  MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S. 219; NEW YORK
CENTRAL R. CO. V. WHITE, 243 U.S. 188. 

FN56  NOBLE STATE BANK V. HASKELL, 219 U.S. 104; ABIE STATE BANK V.
BRYAN, 282 U.S. 765. 

FN57  NEW ENGLAND DIVISIONS CASE, 261 U.S. 184; DAYTON GOOSE CREEK
RY. V. UNITED STATES, 263 U.S. 456. 

FN58  300 U.S. 55, 77, 78. 

FN59  295 U.S. 330, 355 ET SEQ. 

FN60  PANAMA REFINING CO. V. RYAN, 293 U.S. 388, 421; SCHECHTER CORP.
V. UNITED STATES, 295 U.S. 495, 529; CURRIN V. WALLACE, 306 U.S. 1. 

FN61  BUTTFIELD V. STRANAHAN, 192 U.S. 470, 496; UNITED STATES V.
CHEMICAL FOUNDATION, 272 U.S. 1, 12; MONONGAHELA BRIDGE CO. V. UNITED
STATES, 216 U.S. 177, 193; UNITED STATES V. GRIMAUD, 220 U.S. 506, 516;
AVENT V. UNITED STATES, 266 U.S. 127, 130. 

FN62  "SECTION 1.  A NATIONAL EMERGENCY PRODUCTIVE OF WIDESPREAD
UNEMPLOYMENT AND DISORGANIZATION OF INDUSTRY, WHICH BURDENS INTERSTATE
AND FOREIGN COMMERCE, AFFECTS THE PUBLIC WELFARE, AND UNDERMINES THE
STANDARDS OF LIVING OF THE AMERICAN PEOPLE, IS HEREBY DECLARED TO
EXIST.  IT IS HEREBY DECLARED TO BE THE POLICY OF CONGRESS TO REMOVE
OBSTRUCTIONS TO THE FREE FLOW OF INTERSTATE AND FOREIGN COMMERCE WHICH
TEND TO DIMINISH THE AMOUNT THEREOF; AND TO PROVIDE FOR THE GENERAL
WELFARE BY PROMOTING THE ORGANIZATION OF INDUSTRY FOR THE PURPOSE OF
COOPERATIVE ACTION AMONG TRADE GROUPS, TO INDUCE AND MAINTAIN UNITED
ACTION OF LABOR AND MANAGEMENT UNDER ADEQUATE GOVERNMENTAL SANCTIONS
AND SUPERVISION, TO ELIMINATE UNFAIR COMPETITIVE PRACTICES, TO PROMOTE
THE FULLEST POSSIBLE UTILIZATION OF THE PRESENT PRODUCTIVE CAPACITY OF
INDUSTRIES, TO AVOID UNDUE RESTRICTION OF PRODUCTION (EXCEPT AS MAY BE
TEMPORARILY REQUIRED), TO INCREASE THE CONSUMPTION OF INDUSTRIAL AND
AGRICULTURAL PRODUCTS BY INCREASING PURCHASING POWER, TO REDUCE AND
RELIEVE UNEMPLOYMENT, TO IMPROVE STANDARDS OF LABOR, AND OTHERWISE TO
REHABILITATE INDUSTRY AND TO CONSERVE NATURAL RESOURCES."  48 STAT.
195. 

FN63  CF. SCHECHTER CORP. V. UNITED STATES, 295 U.S. AT 533. 

FN64  CURRIN V. WALLACE, 306 U.S. 1, 15. 

FN65  HANNA, LAW OF COOPERATIVE MARKETING ASSOCIATIONS, PP. 210,
256. 

FN66  HOUSE REPORT NO. 1241, 74TH CONG., 1ST SESS.; SENATE REPORT NO.
1011, 74TH CONG., 1ST SESS. 

FN67  COSTANZO V. TILLINGHAST, 287 U.S. 341, 345; UNITED STATES V.
CHICAGO NORTH SHORE R. CO., 288 U.S. 1, 13-14. 

FN68  ARTICLE VI, SEC. 1. 

MR. JUSTICE BLACK AND MR. JUSTICE DOUGLAS CONCUR IN THE JUDGMENT AND
OPINION OF THE COURT EXCEPT INSOFAR AS THE OPINION APPEARS TO IMPLY
THAT POWER OF CONGRESS TO ENACT THE MARKETING LAW DEPENDS UPON THE USE
AND NATURE OF MILK.  THEY DO NOT BELIEVE THAT WE ARE CALLED UPON IN
THIS CASE TO INDICATE, AS THEY THINK WE DO, THAT THERE IS SUCH A
CONSTITUTIONAL LIMITATION ON THE POWER OF CONGRESS TO REGULATE
INTERSTATE COMMERCE. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER, DISSENTING. 

WE ARE OF OPINION THAT THE DECREE BELOW SHOULD BE AFFIRMED. 

IN OUR VIEW THE CHALLENGED ORDER OF THE SECRETARY MUST SUCCUMB TO TWO
MANIFEST OBJECTIONS.  IT IS UNNECESSARY FOR US TO DISSECT THE RECORD IN
SEARCH OF OTHER IMPEDIMENTS. 

FIRST.  CONGRESS POSSESSES THE POWERS DELEGATED BY THE CONSTITUTION -
NO OTHERS.  THE OPINION OF THIS COURT IN SCHECHTER POULTRY CORP. V.
UNITED STATES (1935), 295 U.S. 495 - NOTEWORTHY BECAUSE OF MODERNITY
AND REAFFIRMATION OF ANCIENT DOCTRINE - SUFFICIENTLY DEMONSTRATES THE
ABSENCE OF CONGRESSIONAL AUTHORITY TO MANAGE PRIVATE BUSINESS AFFAIRS
UNDER THE TRANSPARENT GUISE OF REGULATING INTERSTATE COMMERCE.  TRUE,
PRODUCTION AND DISTRIBUTION OF MILK ARE MOST IMPORTANT ENTERPRISES, NOT
EASY OF WISE EXECUTION; BUT SO IS BREEDING THE COWS, AUTHORS OF THE
COMMODITY; ALSO, SOWING AND REAPING THE FODDER WHICH INSPIRES THEM. 

SECOND.  IF PERCHANCE CONGRESS POSSESSES POWER TO MANAGE THE MILK
BUSINESS WITHIN THE VARIOUS STATES, AUTHORITY SO TO DO CANNOT BE
COMMITTED TO ANOTHER.  A CURSORY EXAMINATION OF THE STATUTE SHOWS
CLEARLY ENOUGH THE DESIGN TO ALLOW A SECRETARY TO PRESCRIBE ACCORDING
TO HIS OWN ERRANT WILL AND THEN TO EXECUTE.  THIS IS NOT GOVERNMENT BY
LAW BUT BY CAPRICE.  WHIMSEYS MAY DISPLACE DELIBERATE ACTION BY CHOSEN
REPRESENTATIVES AND BECOME RULES OF CONDUCT.  TO US THE OUTCOME SEEMS
WHOLLY INCOMPATIBLE WITH THE SYSTEM UNDER WHICH WE ARE SUPPOSED TO
LIVE. 

MR. JUSTICE ROBERTS, DISSENTING. 

IN NOS. 772, 809 AND 865* I HAVE EXPRESSED MY VIEWS AS TO THE
UNCONSTITUTIONALITY OF THE PROVISIONS OF THE AGRICULTURAL MARKETING
AGREEMENT ACT OF 1937 HERE INVOLVED, IN VIEW OF THEIR ATTEMPTED
DELEGATION OF LEGISLATIVE POWERS.  THAT MATTER IS NOT PRESSED IN THE
PRESENT CASES AND I NEED NOT HERE ADVERT TO THE SUBJECT.  I AM OF
OPINION, NEVERTHELESS, THAT ORDER NO. 27 IS NOT, IN THE RESPECTS TO BE
DISCUSSED, AUTHORIZED BY THE ACT, BUT IF IT IS AUTHORIZED, DEPRIVES THE
APPELLEES OF THEIR PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF
THE FIFTH AMENDMENT. 

*H.P. HOOD & SONS, INC. V. UNITED STATES, POST, 588, 603. 

THIS CONCLUSION IS BASED UPON FINDINGS OF FACT OF THE DISTRICT
COURT.  WHILE THE FINDINGS IN QUESTION ARE THE SUBJECT OF ASSIGNMENTS
OF ERROR, THE APPELLANTS FAILED, EITHER IN BRIEF OR IN ORAL ARGUMENT,
TO POINT OUT THAT THEY LACK SUBSTANTIAL SUPPORT IN THE EVIDENCE. 
EXAMINATION OF THE RECORD DISCLOSES THAT THESE FINDINGS ARE BASED ON
UNCONTRADICTED TESTIMONY, AUTHENTIC DOCUMENTARY EVIDENCE, AND A
STIPULATION OF THE PARTIES.  THEY SHOULD, THEREFORE, BE ACCEPTED HERE. 
THEY MAY BRIEFLY BE RECAPITULATED. 

UNDER THE TERMS OF THE ACT AND THE ORDER, ALL OF THE APPELLEES ARE
HANDLERS AND THE DAIRYMEN'S LEAGUE COOPERATIVE ASSOCIATION, THE
APPELLANT IN NO. 827, IS LIKEWISE A HANDLER.  BY ART. VII, SEC. 1, OF
THE ORDER, ON OR BEFORE THE 25TH DAY OF EACH MONTH, EACH HANDLER WHICH
IS NOT A COOPERATIVE ASSOCIATION OF PRODUCERS IS REQUIRED TO PAY TO
EACH PRODUCER THE UNIFORM PRICE FIXED BY THE ORDER FOR ALL MILK
DELIVERED BY THE PRODUCER DURING THE PRECEDING MONTH WHICH WAS SOLD IN
THE MARKETING AREA.  THE COOPERATIVE ASSOCIATIONS WHICH ARE HANDLERS
ARE NOT REQUIRED TO MAKE PAYMENT FOR SIMILAR MILK AT THE UNIFORM PRICE
OR AT ANY STATED PRICE.  ART. VII, SEC. 8, REQUIRES ALL HANDLERS, ON OR
BEFORE THE 18TH DAY OF EACH MONTH, TO PAY TO THE MARKET ADMINISTRATOR
FOR THE PRODUCER SETTLEMENT FUND "THE AMOUNT BY WHICH HIS NET POOL
OBLIGATION FOR THE PRECEDING MONTH IS GREATER THAN THE AMOUNT OBTAINED
BY MULTIPLYING THE NET POOLED MILK OF SUCH HANDLER BY THE UNIFORM
PRICE."  THUS EACH HANDLER IS REQUIRED TO PAY INTO THE FUND FOR ALL
MILK USED IN THE MARKETING AREA THE DIFFERENCE BETWEEN $2.45 PER CWT.
AND THE UNIFORM PRICE FOR ALL CLASS I MILK.  HANDLERS SELLING MILK
RECEIVED FROM PRODUCERS IN THE PRODUCTION AREA, BUT MARKETED OUTSIDE
THE MARKETING AREA, (DENOMINATED "UNPRICED MILK") ARE NOT REQUIRED TO
PAY A UNIFORM PRICE FOR SUCH MILK OR TO PAY INTO THE FUND THE
DIFFERENCE BETWEEN THE UNIFORM PRICE AND THE ACTUAL MARKET VALUE OF
SUCH MILK, OR ANY FIXED AMOUNT IN RESPECT THEREOF.  THEY ARE PERMITTED
TO BLEND PRICES PAID OR PURPORTED TO HAVE BEEN PAID FOR UNPRICED MILK
WITH THE UNIFORM PRICE ANNOUNCED BY THE ADMINISTRATOR FOR MILK SOLD IN
THE MARKETING AREA, THEREBY REDUCING THE ACTUAL PRICE PAID BY THEM FOR
MILK SOLD IN THE MARKETING AREA IN COMPETITION WITH OTHER HANDLERS WHO
SELL MILK ONLY IN THAT AREA.  IN A PAMPHLET ISSUED BY THE SECRETARY,
THE PROVISIONS OF THE ORDER ARE SO CONSTRUED AND THE METHOD OF
ACCOUNTING IS DESCRIBED AS FOLLOWS: 

"THUS, THE HANDLER MAY MULTIPLY THE TOTAL POUNDS OF MILK SOLD BY IT
IN THE AREA BY THE UNIFORM PRICE; MULTIPLY THE TOTAL POUNDS OF MILK
SOLD IN OTHER MARKETS AND WHICH IS CALLED 'UNPRICED MILK' BY 'SUCH
PRICES AS IT SEES FIT;' ADD THE TOTALS, AND DIVIDE BY THE TOTAL POUNDS
OF MILK, TO OBTAIN THE AVERAGE OF 'BLENDED' PRICE PAID PRODUCERS FOR
ALL MILK.  IF THE PRICE FIGURED BY THE HANDLER FOR UNPRICED MILK, IS
LOWER THAN ITS ACTUAL MARKET VALUE, THE HANDLER, BY BLENDING, IS
THEREBY PERMITTED TO PAY PRODUCERS FOR ALL MILK AT LESS THAN THE ORDER
PRICE, AND LESS THAN THE ACTUAL VALUE THEREOF." 

THE APPELLEES' RECEIVING STATIONS IN THE PRODUCTION AREA SUPPLY THE
MARKETING AREA DEFINED BY THE ORDER.  THE APPELLEE, JETTER DAIRY
COMPANY, SELLS MILK IN COMPETITION WITH DEALERS OPERATING MILK
RECEIVING STATIONS IN THE PRODUCTION AREA IN NEW YORK, WHO SHIP MILK
RECEIVED AT THEIR STATIONS TO THE MARKETING AREA.  OTHER APPELLEES BUY
MILK WHICH IS SOLD TO INDEPENDENT DEALERS IN COMPETITION WITH MILK
RECEIVED AT THE OTHER STATIONS IN THE PRODUCING AREA.  SEVERAL OF THE
APPELLEES' LARGEST COMPETITORS, INCLUDING THE DAIRYMEN'S LEAGUE
COOPERATIVE, SELL LARGE PROPORTIONS OF THEIR MILK OUTSIDE THE MARKETING
AREA IN NORTHERN NEW JERSEY.  THE MILK CONTROL BOARD OF NEW JERSEY
FIXED A BASE PRICE OF $2.76 PER CWT. TO PRODUCERS FOR 3.5 MILK F.O.B.
COUNTRY MILK PLANTS, WHICH PRICE WAS IN EFFECT DURING THE PERIOD
COVERED BY THE ORDER.  THE SAME BOARD FIXED WHOLESALE PRICES FROM
DEALERS TO STORES AT ELEVEN CENTS PER QUART, BOTTLED IN GLASS, IN TWO
RURAL DISTRICTS, AND TWELVE CENTS PER QUART, IN GLASS, IN THREE HEAVILY
POPULATED DISTRICTS, AND FIXED A MINIMUM PRICE TO CONSUMERS OUT OF
STORES IN THE TWO RURAL DISTRICTS OF TWELVE CENTS PER QUART AND, IN THE
MORE HEAVILY POPULATED DISTRICTS, OF THIRTEEN CENTS PER QUART.  NO
RESALE PRICES ARE FIXED IN THE MARKETING AREA EITHER FROM DEALERS TO
STORES OR FROM STORES TO CONSUMERS.  THE FAIR MARKET VALUE OF
"UNPRICED" CLASS I MILK PRODUCED IN THE PRODUCTION AREA, AND SOLD BY
HANDLERS IN NEW JERSEY, DURING THE PERIOD THE ORDER WAS IN FORCE, WAS
$2.76 PER CWT. 

WHEREAS THE UNIFORM PRICE FOR 3.5 MILK FIXED BY THE ADMINISTRATOR
WAS, FOR SEPTEMBER, $1.87, OCTOBER, $1.91, AND NOVEMBER, $2.10 PER
CWT., THE DAIRYMEN'S LEAGUE PAID ITS PRODUCERS A BASE PRICE FOR THE
SAME MILK, IN THE SAME ZONE, FOR SEPTEMBER, $1.75, FOR OCTOBER, $1.81,
AND, FOR NOVEMBER, $2.01 PER CWT.  THUS THE DIFFERENCE BETWEEN THE
VALUE OF CLASS I MILK SOLD BY THE DAIRYMEN'S LEAGUE IN NEW JERSEY, AND
THE PRICES PAID FOR THE SAME TO PRODUCERS PER CWT. WAS, IN SEPTEMBER,
$1.01, IN OCTOBER, $.95, AND, IN NOVEMBER, $.75.  $1.01 PER CWT. ON
10,208,500 POUNDS OF MILK SOLD IN NEW JERSEY BY THE DAIRYMEN'S LEAGUE
AMOUNTS TO $103,105.85. 

SHEFFIELD FARMS COMPANY, A COMPETITOR OF THE APPELLEES, UTILIZED, IN
SEPTEMBER, 1938, 40,083,075 POUNDS OF CLASS I MILK IN NEW YORK STATE
AND 6,426,443 POUNDS OF MILK IN NEW JERSEY, AS WELL AS MILK IN OTHER
MARKETS.  FOR OUT OF MARKET OR UNPRICED MILK THE COMPANY NEGOTIATED
WITH ITS PRODUCERS TO PAY THE UNIFORM ORDER PRICE FOR SUCH OUT OF
MARKET MILK.  THE BASE PRICE PAID WAS, THEREFORE, $1.87, OR EIGHTY-NINE
CENTS PER CWT. LESS THAN THE PRICE FIXED BY THE NEW JERSEY CONTROL
BOARD.  THE DIFFERENCE AMOUNTED TO $57,194.96, OR 14.27 CENTS PER CWT.
ON SUCH MILK AND THE PRICE PAID FOR CLASS I MILK WAS REDUCED BY THAT
AMOUNT.  SIMILAR SPREADS ARE SHOWN IN THE COMPANY'S PURCHASES FOR
OCTOBER, 1938.    BASED UPON THESE FACTS, THE COURT FURTHER FINDS THAT
PRICES PAID TO PRODUCERS DELIVERING TO HANDLERS, WHETHER COOPERATIVE OR
PROPRIETARY, WHICH SELL FLUID MILK IN THE MARKETING AREA, AND ALSO IN
THE STATE OF NEW JERSEY AND OTHER MARKETS, ARE LESS THAN THE ACTUAL
VALUE OF THE MILK DELIVERED, DUE TO THE PROCESS OF BLENDING PRICES FOR
MILK SOLD OUTSIDE OF THE MARKETING AREA, WHICH BEAR NO TRUE RELATION TO
THE ACTUAL VALUE THEREOF, WITH PRICES CHARGED FOR MILK SOLD IN THE
AREA. 

IT IS EVIDENT FROM THE TERMS OF THE ORDER, AND THE SECRETARY'S
CONSTRUCTION OF IT, THAT HANDLERS WHO USE "UNPRICED" MILK MAY FIX ANY
PRICE THEY CHOOSE TO FIX FOR IT.  THUS, CONTRARY TO THE REQUIREMENT OF
SEC. 8C (5)(A), OF THE STATUTE, ALL PRODUCERS DO NOT RECEIVE A UNIFORM
PRICE FOR MILK.  THIS IS A NECESSARY EFFECT OF THE PROVISION PERMITTING
THE BLENDING OF THE PRICE PAID PRODUCERS FOR MILK SOLD IN THE MARKETING
AREA AND AN ARBITRARY PRICE FIXED FOR "UNPRICED" MILK.  THE EFFECT UPON
A HANDLER WHOSE TRADE IS SOLELY IN THE MARKETING AREA IS DISASTROUS. 
THE LOWER PRICE PAID BY THOSE WHO ARE PERMITTED TO BLEND MAKES IT
POSSIBLE FOR THEM TO RESELL THE MILK IN THE MARKETING AREA, IN WHICH NO
RESALE PRICE IS FIXED, AT A CUT RATE WHICH IS DESTRUCTIVE OF THEIR
COMPETITORS' BUSINESS.  AND THERE IS EVIDENCE THAT HANDLERS,
COOPERATIVE AND PROPRIETARY, HAVE TAKEN ADVANTAGE OF THE TERMS OF THE
ORDER TO CUT THE PRICE OF MILK TO CONSUMERS IN THE MARKETING AREA TO
THE DISADVANTAGE OF THEIR COMPETITORS. 

THE APPELLANTS MAKE NO ANSWER TO THE APPELLEES' ATTACK ON THIS
FEATURE OF THE ORDER.  THE OPINION OF THIS COURT STATES THAT THE
DETRIMENT TO THE SMALLER HANDLERS WHO SELL MILK FOR USE ONLY IN THE
MARKETING AREA IS THE RESULT OF COMPETITIVE CONDITIONS WHICH THE ORDER
DOES NOT AFFECT.  BUT IT IS EVIDENT THAT THE ORDER FREEZES THE MINIMUM
PRICE WHICH IS TO BE PAID BY MANY HANDLERS AND LEAVES THE PRICE OF
OTHER HANDLERS WHO COMPETE WITH THEM OPEN TO REDUCTION BY THE DEVICE OF
BLENDING. 

THERE IS NOTHING IN THE ACT WHICH AUTHORIZES THE DISCRIMINATION
WORKED BY THE ORDER PERMITTING HANDLERS, WHETHER PROPRIETARY OR
COOPERATIVE, TO BLEND THE PRICES OF UNPRICED MILK WITH THAT OF MILK,
SOLD IN THE MARKETING AREA.  SECTION 8C (5)(F), AS I READ IT, PROHIBITS
SUCH A PRACTICE BY COOPERATIVES.  IF THE ORDER HAD PROVIDED THAT MILK
SOLD IN NEW JERSEY SHOULD BE ACCOUNTED FOR TO THE POOL AT ITS ACTUAL
VALUE AND HAD THE MILK SO SOLD BEEN ACCOUNTED INTO THE POOL,
COMPETITORS COULD NOT HAVE OBTAINED THE ADVANTAGE WHICH SO SERIOUSLY
INJURES THE BUSINESS OF APPELLEES.  AS THE ORDER IS DRAWN AND
ADMINISTERED IT INEVITABLY TENDS TO DESTROY THE BUSINESS OF SMALLER
HANDLERS BY PLACING THEM AT THE MERCY OF THEIR LARGER COMPETITORS.  I
THINK NO SUCH ARRANGEMENT WAS CONTEMPLATED BY THE ACT, BUT THAT, IF IT
WAS, IT OPERATES TO DENY THE APPELLEES DUE PROCESS OF LAW. 

I THINK THAT THE DECREE SHOULD BE AFFIRMED. 

THE CHIEF JUSTICE JOINS IN THIS OPINION SO FAR AS IT RELATES TO THE
INVALIDITY OF THE ORDER ON THE GROUND STATED; MR. JUSTICE MCREYNOLDS
AND MR. JUSTICE BUTLER ALSO JOIN IN THIS OPINION. 
..END :








H. P. HOOD & SONS V. U.S., 307 U.S. 588 


NO. 772.  ARGUED APRIL 25, 26, 1939.  - DECIDED JUNE 5, 1939.  - 21
F.SUPP.  321 - 26 F.SUPP.  672, AFFIRMED. 


1.  OBJECTIONS, ON CONSTITUTIONAL GROUNDS, TO THE AGRICULTURAL
MARKETING AGREEMENT ACT OF 1937, AND TO CERTAIN FEATURES OF AN ORDER OF
THE SECRETARY OF AGRICULTURE MADE THEREUNDER, OVERRULED UPON THE
AUTHORITY OF THE ROCK ROYAL CASE, ANTE, P. 533.  P. 595. 

2.  THE FINDING AND PROCLAMATION REQUIRED OF THE SECRETARY OF
AGRICULTURE BY SEC. 8(E) OF THE AGRICULTURAL MARKETING AGREEMENT ACT OF
1937 TO JUSTIFY AN ORDER BASED ON PURCHASING POWER DURING THE POST-WAR
PERIOD SPECIFIED IN THAT SECTION RATHER THAN UPON THE PRE-WAR PERIOD
MENTIONED IN SEC. 2 - THAT IS TO SAY, A FINDING AND PROCLAMATION THAT
THE PURCHASING POWER OF THE COMMODITY REGULATED CAN NOT BE
SATISFACTORILY DETERMINED FOR THE PRE-WAR PERIOD FROM AVAILABLE
STATISTICS OF THE DEPARTMENT OF AGRICULTURE - NEED NOT BE REPEATED IN
CONNECTION WITH AN AMENDMENT OF THE ORDER WHICH DOES NOT INVOLVE ANY
CHANGE OF THE BASE PERIOD, ALTHOUGH IT IS DECLARED BY SEC. 8(17) THAT
THE PROVISIONS OF SEC. 8(E) APPLICABLE TO ORDERS "SHALL BE APPLICABLE
TO AMENDMENTS TO ORDERS."  P. 595. 

3.  A REFERENDUM TO PRODUCERS, UNDER SEC. 8C (9)(B) AND SEC. 8C (19)
OF THE ABOVE-MENTIONED ACT, OF AMENDMENTS TO AN ORDER REGULATING THE
HANDLING OF MILK IN THE MARKETING AREA OF BOSTON AND VICINITY, WAS
PROPERLY RESTRICTED TO PRODUCERS WHO SOLD THEIR FLUID MILK TO HANDLING
PLANTS LICENSED BY THE STATE LAW TO DISTRIBUTE OR SELL FLUID MILK IN
THE MARKETING AREA AND WHICH HAD SHIPPED MILK OR CREAM TO THAT AREA
DURING THE REPRESENTATIVE PERIOD.  SO HELD, IN THE LIGHT OF THE OBJECT
OF THE REGULATION, WHICH WAS TO REMEDY MARKETING EVILS CAUSED BY A
SURPLUS OF FLUID MILK.  P. 597. 

THE REFERENDUM ELECTION WAS NOT INVALIDATED (A) BY DENYING THE VOTE
TO PRODUCERS WHO SOLD TO HANDLERS NOT LICENSED TO SELL MILK, BUT ONLY
CREAM, IN THE MARKETING AREA; (B) BY ALLOWING THE VOTE TO PRODUCERS WHO
SOLD THEIR MILK AT PLANTS WHICH SHIPPED ONLY CREAM TO THE MARKETING
AREA DURING THE REPRESENTATIVE PERIOD, BUT WHICH WERE LICENSED TO SELL
FLUID MILK IN THAT AREA AND COULD HAVE DONE SO; (C) BY ALLOWING THE
VOTE TO PRODUCERS NOT REGISTERED AS REQUIRED BY THE STATE LAW BUT WHOSE
MILK WAS SOLD IN THE MARKETING AREA BY LICENSED HANDLERS; OR (D) BY
PERMITTING THE VOTE TO PRODUCERS WHO SOLD TO STATIONS WHICH SHIPPED
LESS THAN 50 PER CENT. OF THE MILK TO THE AREA DURING THE
REPRESENTATIVE PERIOD. 

4.  AT SUCH A REFERENDUM A COOPERATIVE ASSOCIATION OF PRODUCERS MAY
VOTE FOR ITS MEMBERS.  P. 599. 

5.  AN ORDER OF THE SECRETARY OF AGRICULTURE WHICH REGULATED THE
PRICES OF MILK SOLD BY PRODUCERS TO LICENSED HANDLERS FOR A MARKETING
AREA, AND WHICH REQUIRED SUCH HANDLERS TO PAY THROUGH AN EQUALIZATION
FUND - CONSTRUED AS INCLUDING MILK BOUGHT OF UNREGISTERED FARMS AND
SOLD IN VIOLATION OF THE STATE LAW.  P. 599. 

6.  ASSUMING THAT, UNDER THE AGRICULTURAL MARKETING AGREEMENT ACT OF
1937, REINSTATEMENT OF A SUSPENDED ORDER SHOULD BE SUPPORTED BY A
FINDING THAT THE REINSTATEMENT WILL TEND TO EFFECTUATE THE POLICY OF
THE ACT, THE OMISSION CAN BE SUPPLIED BY AN APPROPRIATE FINDING ON
REPROMULGATION OF THE ORDER WITH AMENDMENTS.  P. 602. 

H. P. HOOD & SONS, INC. ET AL. V. UNITED STATES ET AL.* 

*TOGETHER WITH NO. 809, WHITING MILK CO. V. UNITED STATES ET AL., AND
NO. 865, BRANON V. UNITED STATES ET AL., ALSO ON WRITS OF CERTIORARI TO
THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 306 U.S. 627, 629, TO REVIEW DECREES OF A DISTRICT COURT
GRANTING MANDATORY INJUNCTIONS IN TWO SUITS BROUGHT BY THE UNITED
STATES AND THE SECRETARY OF AGRICULTURE TO ENFORCE A MARKETING ORDER
REGULATING PRICES OF MILK AND MILK PRODUCTS IN AN AREA COMPRISING THE
CITY OF BOSTON AND ADJACENT SETTLEMENTS.  THE ORIGINAL DEFENDANTS WERE
THREE MILK DEALERS.  TWO MILK PRODUCERS, ONE OF WHOM IS THE PETITIONER
IN NO. 865, INTERVENED AS DEFENDANTS.  UPON INTERLOCUTORY APPEAL THE
CIRCUIT COURT OF APPEALS GAVE AN OPINION WHICH IS REPORTED AS H.P. HOOD
& SONS, INC. V. UNITED STATES, 97 F.2D 677.  THE WRITS OF CERTIORARI
WERE ISSUED WHILE THE CASES WERE PENDING IN THAT COURT UPON APPEALS
FROM THE FINAL DECREES. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE THE CONSTITUTIONALITY OF THE AGRICULTURAL
MARKETING AGREEMENT ACT OF 1937 FN1  AS APPLIED IN AN ORDER OF THE
SECRETARY OF AGRICULTURE REGULATING THE HANDLING OF MILK IN THE GREATER
BOSTON, MASSACHUSETTS, MARKETING AREA. 

THE PETITIONERS, H.P. HOOD & SONS, INC., AND NOBLE'S MILK COMPANY OF
NO. 772 AND WHITING MILK COMPANY OF NO. 809, ORIGINAL DEFENDANTS BELOW,
ARE ENGAGED IN HANDLING MILK IN THE MARKETING AREA IN THE CURRENT OF
INTERSTATE COMMERCE OR IN A MANNER WHICH BURDENS THAT COMMERCE. 
PRODUCERS INTERVENED AS DEFENDANTS, PETITIONER E. FRANK BRANON ON THE
SIDE OF H.P. HOOD & SONS AND CHESTER D. NOYES BESIDE THE WHITING
COMPANY.  THE RESPONDENTS, PLAINTIFFS BELOW, ARE THE UNITED STATES OF
AMERICA AND THE SECRETARY OF AGRICULTURE.  THE PARTIES WILL BE REFERRED
TO AS DEFENDANTS AND PLAINTIFFS, RESPECTIVELY. 

IT IS UNNECESSARY TO DETAIL THE FACTS OF EACH CASE.  THEY ARE TWO OF
MANY INSTITUTED BY THE PLAINTIFFS TO SECURE OBEDIENCE TO THE ORDER.  ON
OCTOBER 1, 1937, BILLS OF COMPLAINT WERE FILED IN THE DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS, 21 F.SUPP.  321, FOR THE PURPOSE OF
ENJOINING HOOD & SONS, NOBLE'S MILK COMPANY AND WHITING MILK COMPANY
FROM VIOLATING THE TERMS OF ORDER NO. 4 AS AMENDED.  A TEMPORARY
MANDATORY INJUNCTION ISSUED ON NOVEMBER 30, 1937.  A SUPERSEDEAS
FOLLOWED SOON AFTER, CONDITIONED UPON PAYMENT BY THE THREE HANDLERS
INTO THE REGISTRY OF THE COURT OF THE AMOUNTS BILLED TO THEM BY THE
MARKET ADMINISTRATOR FOR EQUALIZATION CHARGES AND MARKETING SERVICES
UNDER THE ORDER.  ANSWERS TO THE BILLS ASSERTED CONSTITUTIONAL
INFIRMITIES IN THE ACT AND FATAL WEAKNESSES IN THE ORDER AS AMENDED.  A
SPECIAL MASTER WAS CHARGED WITH THE DUTY OF FINDING THE FACTS IN THESE
AND SIMILAR SUITS.  HIS REPORT WAS FILED ON JANUARY 27, 1939.  SHORTLY
THEREAFTER, THE DISTRICT COURT CONFIRMED THE REPORT, SUSTAINED BOTH THE
ACT AND THE ORDER, AND ENTERED A DECREE FOR THE PLAINTIFFS.  THE
DEFENDANTS TOOK AN APPEAL TO THE CIRCUIT COURT OF APPEALS AND, AFTER
THE CASES WERE DOCKETED, FILED PETITIONS FOR WRITS OF CERTIORARI.  THE
WRITS WERE GRANTED BECAUSE IMPORTANT QUESTIONS OF FEDERAL LAW UNDECIDED
BY THIS COURT WERE INVOLVED AND PENDING APPEALS IN OTHER CASES WITH
SIMILAR ISSUES WERE READY FOR ARGUMENT. 

THE PERTINENT PROVISIONS OF THE MARKETING ACT HAVE BEEN SUMMARIZED IN
UNITED STATES V. ROCK ROYAL CO-OPERATIVE, ANTE, P. 533.  THEY WILL NOT
BE REPEATED HERE. 

ORDER NO. 4, AS AMENDED, WHICH THE PLAINTIFFS SEEK TO ENFORCE, IS THE
CULMINATION OF AN EXTENDED EFFORT BY THE SECRETARY TO WORK OUT A PLAN
TO REGULATE THE MARKETING OF MILK IN THE BOSTON AREA.  ORDER NO. 4 WAS
ORIGINALLY ISSUED ON FEBRUARY 7, 1936, UNDER THE AGRICULTURAL
ADJUSTMENT ACT.  FN2 ALL STEPS LEADING TO ITS ISSUANCE WERE TAKEN.  ON
NOVEMBER 30, 1935, THE SECRETARY GAVE NOTICE OF A PUBLIC HEARING ON A
PROPOSED MARKETING AGREEMENT AND ORDER.  HEARINGS WERE HELD.  A
MARKETING AGREEMENT WAS TENTATIVELY APPROVED WHICH HANDLERS FAILED TO
ACCEPT.  ON JANUARY 25, 1936, THE SECRETARY FOUND AND PROCLAIMED THAT
THE PURCHASING POWER OF MILK COULD NOT BE SATISFACTORILY DETERMINED FOR
THE PRE-WAR BASE PERIOD FROM AVAILABLE STATISTICS IN THE DEPARTMENT OF
AGRICULTURE, BUT COULD FOR THE POST-WAR PERIOD.  AUGUST, 1919, TO JULY,
1929, WAS DECLARED THE BASE PERIOD FOR THE PURPOSE OF ISSUING AN
ORDER.  ON FEBRUARY 5, 1936, THE SECRETARY MADE A DETERMINATION, AS
REQUIRED BY SEC. 8C (9), AS TO THE NECESSITY FOR ISSUING AN ORDER.  THE
PRESIDENT APPROVED THE DETERMINATION, AND THE ORDER ISSUED.  IT
REMAINED IN EFFECT UNTIL AUGUST 1, 1936, SHORTLY AFTER THE DISTRICT
COURT FOR THE DISTRICT OF MASSACHUSETTS HELD THAT THE ACT UNDER WHICH
THE ORDER WAS ISSUED WAS UNCONSTITUTIONAL.  FN3  ON THAT DAY THE
SECRETARY SUSPENDED THE ORDER FOR AN INDEFINITE TIME. 

AFTER THE PASSAGE OF THE MARKETING ACT, THE SECRETARY, ON JUNE 24,
1937, GAVE NOTICE OF A HEARING UPON PROPOSED AMENDMENTS TO ORDER NO.
4.  ON THE FOLLOWING DAY HE TERMINATED THE SUSPENSION OF THE FORMAL AND
ADMINISTRATIVE PROVISIONS AS OF JULY 1, AND OF THE PRICEFIXING
PROVISIONS AS OF AUGUST 1.  HEARINGS WERE HELD.  A PROPOSED MARKETING
AGREEMENT FAILED OF APPROVAL BY THE HANDLERS.  ON JULY 17, 1937, A
REFERENDUM TOOK PLACE.  IT WILL BE DISCUSSED LATER AT SOME LENGTH
BECAUSE OF CONTENTIONS WHICH QUESTION ITS VALIDITY.  ON JULY 27, 1937,
ACTING PURSUANT TO SEC. 8C (9), THE SECRETARY DETERMINED THAT THE
FAILURE OF THE HANDLERS TO SIGN TENDED TO PREVENT EFFECTUATION OF THE
DECLARED POLICY OF THE ACT; THAT ISSUANCE OF THE PROPOSED AMENDMENTS TO
THE ORDER WAS THE ONLY PRACTICAL MEANS OF ADVANCING THE INTERESTS OF
MILK PRODUCERS IN THE AREA; AND THAT THE ISSUANCE WAS APPROVED BY OVER
70 PERCENT OF THE PRODUCERS WHO DURING MAY, 1937, WERE ENGAGED IN THE
PRODUCTION OF MILK FOR SALE IN THE AREA.  THE PRESIDENT APPROVED THE
DETERMINATION.  ON JULY 28, 1937, "ORDER NO. 4, AMENDMENT NO. 1"
ISSUED.  IN IT THE SECRETARY MADE FINDINGS UPON THE EVIDENCE INTRODUCED
AT THE HEARINGS UPON THE PROPOSED AMENDMENTS AND RATIFIED THE ORIGINAL
FINDINGS IN SO FAR AS THEY WERE NOT IN CONFLICT WITH THE NEW ONES.  HE
MADE NO FINDING OR PROCLAMATION, AS HE HAD IN THE ORIGINAL ORDER, THAT
SATISFACTORY STATISTICS WERE NOT AVAILABLE FOR THE PRE-WAR PERIOD BUT
WERE FOR THE POST-WAR PERIOD.  IT IS NOT DISPUTED THAT THE LATTER WAS
USED AS THE BASE PERIOD FOR THE PURPOSE OF COMPUTING THE PRICES TO BE
USED IN THE AMENDED ORDER. 

THIS AMENDED ORDER IS BASED UPON THE SAME PRINCIPLES DISCUSSED IN
UNITED STATES V. ROCK ROYAL CO-OPERATIVE, ANTE, P. 533, AND COMPANION
CASES, DECIDED TODAY.  IT ESTABLISHES A COMPREHENSIVE SCHEME FOR THE
REGULATION OF MILK HANDLED IN INTERSTATE OR FOREIGN COMMERCE IN AN AREA
WHICH INCLUDES BOSTON AND 36 OTHER CITIES OR TOWNS.  A MARKET
ADMINISTRATOR, APPOINTED BY THE SECRETARY OF AGRICULTURE, IS IN
CHARGE.  PRODUCERS AND HANDLERS ARE DEFINED, THE FIRST AS ANY PERSON
PRODUCING MILK IN CONFORMITY WITH THE HEALTH REGULATIONS APPLICABLE TO
MILK SOLD FOR CONSUMPTION AS MILK IN THE MARKETING AREA, THE SECOND AS
ALL, INCLUDING PRODUCERS OR ASSOCIATIONS OF PRODUCERS, WHO ENGAGE "IN
SUCH HANDLING OF MILK, WHICH IS SOLD AS MILK OR CREAM IN THE MARKETING
AREA, AS IS IN THE CURRENT OF INTERSTATE COMMERCE OR WHICH DIRECTLY
BURDENS, OBSTRUCTS, OR AFFECTS INTERSTATE OR FOREIGN COMMERCE IN MILK
AND ITS PRODUCTS." 

THERE ARE TWO USE CLASSIFICATIONS, ROUGHLY, FLUID AND NON-FLUID.  A
PRICE IS STATED FOR CLASS I OR FLUID MILK; A FORMULA, BASED PRIMARILY
ON THE PRICE OF CREAM IN BOSTON AND CASEIN IN NEW YORK, IS PROVIDED FOR
THE CALCULATION OF THE CLASS II PRICE FOR EACH DELIVERY PERIOD. 
MINIMUM PRICES DETERMINE THE VALUE OF ALL THE MILK DELIVERED BY ALL
PRODUCERS TO ALL THE HANDLERS SUBJECT TO THE ORDER.  EXCEPT TO
ASSOCIATIONS OF PRODUCERS FOR CLASS I MILK, PAYMENT TO PRODUCERS IS
MADE AT A BLENDED PRICE.  THE ADMINISTRATOR COMPUTES THE VALUE OF MILK
FOR EACH HANDLER BY MULTIPLYING THE QUANTITIES USED BY HIM IN EACH
CLASS BY THE CLASS PRICE, AND BY ADDING THE TWO RESULTS.  THEN THE
VALUES FOR ALL HANDLERS ARE COMBINED INTO ONE TOTAL.  ADJUSTMENTS ARE
MADE FOR DIFFERENTIALS.  THE ADJUSTED TOTAL IS DIVIDED BY THE TOTAL
QUANTITY OF MILK.  THE RESULT IS A WEIGHTED AVERAGE PRICE SOMEWHERE
BETWEEN THE TWO CLASS PRICES, KNOWN AS THE "BLENDED PRICE."  EACH
HANDLER PAYS HIS PRODUCERS AT THE BLENDED PRICE.  THE AMOUNT PAID TO
PRODUCERS MAY BE LESS, OR IT MAY BE MORE, THAN THE VALUE OF THE MILK
SOLD BY THE HANDLER.  EQUALIZATION IS MADE AMONG HANDLERS.  AS THE
ORDER PUTS IT, AFTER PAYING HIS OWN PRODUCERS, EACH HANDLER PAYS "TO
PRODUCERS, THROUGH THE MARKET ADMINISTRATOR, BY PAYING TO OR RECEIVING
FROM THE MARKET ADMINISTRATOR, AS THE CASE MAY BE, THE AMOUNT BY WHICH
PAYMENTS MADE  ...  ARE LESS THAN, OR EXCEED, THE VALUE OF MILK AS
REQUIRED TO BE COMPUTED FOR SUCH HANDLER.  ...  " 

THE DEFENDANTS URGE THAT THE DECREE OF THE DISTRICT COURT SHOULD BE
REVERSED BECAUSE OF ERROR UNDER THE CONSTITUTION, UNDER THE STATUTE,
UNDER THE ORDER ITSELF.  IT IS CONTENDED THAT THE EQUALIZATION
PROVISIONS OF THE AMENDED ORDER VIOLATE THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT; THAT THE PRICE FIXING FEATURES OF THE ACT AND ORDER
CONSTITUTE AN INVALID EXERCISE OF THE POWER TO REGULATE COMMERCE AND AN
INVASION OF THE POWERS RESERVED TO THE STATES UNDER THE TENTH
AMENDMENT; FN4  AND THAT THE ACT INVOLVES DELEGATION OF LEGISLATIVE
POWER.  THE AMENDMENTS TO THE ORDER ARE SAID TO BE VOID BECAUSE AN
ESSENTIAL FINDING REQUIRED BY THE STATUTE IS LACKING.  THE REFERENDUM
AMONG PRODUCERS IS ASSAILED AS IMPROPERLY CONDUCTED.  AND THE
DEFENDANTS IN NO. 772 RAISE THE POINT THAT THE MARKET ADMINISTRATOR
FAILED TO COMPLY WITH THE PROVISIONS OF THE AMENDED ORDER. 

CONSTITUTIONALITY. - THERE IS NOTHING TO BE ADDED TO THE DISCUSSION
OF THE CONSTITUTIONALITY OF THE ACT IN UNITED STATES V. ROCK ROYAL CO
OPERATIVE, ANTE, P. 533.  THE DISCUSSION THERE OF THE VALIDITY OF THE
AMENDED ORDER, IN SO FAR AS SIMILAR ISSUES ARE RAISED IN THIS CASE, IS
ALSO DETERMINATIVE. 

ORDER AMENDED WITHOUT FINDING AS TO BASE PERIOD.  - ORDER NO. 4, AS
AMENDED, IS THE CONTROLLING REGULATION IN THESE CASES.  AS AUTHORIZED
BY SEC. 8E  FN5  IT USED A POST-WAR PERIOD AS THE BASE PERIOD TO
DETERMINE PRICES.  THE FINDING AND PROCLAMATION BY THE SECRETARY AS TO
THE ABSENCE OF STATISTICS FOR THE PRE-WAR PERIOD, AVAILABLE FOR USE,
WERE MADE FOR THE ORIGINAL ISSUE OF ORDER NO. 4 BUT NOT FOR THE
AMENDMENTS.  SECTION 8C (17) MAKES CERTAIN SECTIONS, INCLUDING 8E,
APPLICABLE TO AMENDMENTS OF ORDERS.  IT READS THUS:  "THE PROVISIONS OF
THIS SECTION, SECTION 8D, AND SECTION 8E APPLICABLE TO ORDERS SHALL BE
APPLICABLE TO AMENDMENTS TO ORDERS.  ...  " DEFENDANTS CONTEND THAT
THIS REQUIRES A FINDING AND PROCLAMATION UNDER SEC. 8E EACH TIME AN
ORDER WHICH INCLUDES A POST-WAR BASE PERIOD IS AMENDED IN ANY
PARTICULAR. 

ORDINARILY THE BASE PERIOD OF SEC. 2 IS TO BE USED.  IT IS ONLY AFTER
A FINDING THAT THE PURCHASING POWER OF THE COMMODITY DURING THE PERIOD
FIXED IN SEC. 2 CANNOT BE SATISFACTORILY DETERMINED FROM AVAILABLE
STATISTICS OF THE DEPARTMENT OF AGRICULTURE THAT THE SECRETARY BY SEC.
8E IS AUTHORIZED TO FIND AND PROCLAIM THE POST-WAR BASE PERIOD.  BY
SEC. 8C (1) THE SECRETARY IS AUTHORIZED TO ISSUE "AND FROM TIME TO TIME
AMEND" ORDERS.  OBVIOUSLY, AS A GENERAL CLAUSE TO MAKE ALL THE
PROVISIONS OF SECS. 8C, 8D AND 8E APPLICABLE TO AMENDMENTS, SEC. 8C
(17) WAS ADOPTED.  WITHOUT IT QUESTIONS WOULD HAVE BEEN PERTINENT AS TO
THE APPLICABILITY TO AMENDED ORDERS OF VARIOUS PROVISIONS IN THESE
AFTER IT WAS ONCE DETERMINED.  THERE WOULD SEEM TO BE NO OCCASION TO
REVIEW THE ABSENCE OF SATISFACTORY STATISTICS, HOWEVER, ON A PROPOSED
AMENDMENT WHICH DOES NOT INVOLVE ANY CHANGE IN THE BASE PERIOD.  THE
REQUIREMENT FOR FINDING AND PROCLAMATION IN ADOPTING A BASE PERIOD IS
NOT INTENDED TO FORCE THE SECRETARY TO GO THROUGH A MEANINGLESS
RITUAL.  A DETERMINATION OF THE NECESSITY OF USING THE POST-WAR BASE
PERIOD ONCE MADE AND PROCLAIMED SATISFIES THE CONDITIONS OF SECS. 8C
(17) AND 8E FOR AMENDMENTS, SO LONG AS NO AMENDMENT IS MADE WHICH
INVOLVES A CHANGE IN THE BASE PERIOD.  THIS HAS BEEN THE ADMINISTRATIVE
CONSTRUCTION  FN6  WHERE AMENDMENTS HAVE BEEN MADE TO ORDERS WHICH HAD
UTILIZED A POST-WAR BASE PERIOD.  THE PLAINTIFFS SHOW THIS BY A SERIES
OF REFERENCES TO THE FEDERAL REGISTER WHICH ARE NOT CHALLENGED.  FN7 

VALIDITY OF THE REFERENDUM.  - THE REFERENDUM IS CHALLENGED AS
CONDUCTED CONTRARY TO THE TERMS OF THE ACT.  SECTION 8C (9)(B)
AUTHORIZES THE SECRETARY OF AGRICULTURE TO ISSUE AN ORDER,
NOTWITHSTANDING THE FAILURE OF HANDLERS TO APPROVE A MARKETING
AGREEMENT, IF HE MAKES CERTAIN DETERMINATIONS, ONE OF THEM THAT THE
ISSUANCE IS APPROVED BY AT LEAST TWO-THIRDS OF THE PRODUCERS WHO,
DURING A REPRESENTATIVE PERIOD, "HAVE BEEN ENGAGED IN THE PRODUCTION OF
SUCH COMMODITY FOR SALE IN THE MARKETING AREA.  ..."  FN8  UNDER SEC.
8C(19) THE SECRETARY "MAY CONDUCT A REFERENDUM AMONG PRODUCERS" TO
ASCERTAIN WHETHER TWO-THIRDS APPROVE.  HE RESTRICTED VOTING IN THE
REFERENDUM UNDER SCRUTINY TO PRODUCERS WHO HAD DELIVERED MILK TO A
STATION APPROVED FOR THE SHIPMENT OF MILK TO THE MARKETING AREA AND
WHICH HAD SHIPPED MILK OR CREAM TO THE MARKETING AREA DURING THE
REPRESENTATIVE PERIOD.    IT IS SAID THAT THE SECRETARY BY THIS
RESTRICTION DISREGARDED THE LANGUAGE OF THE STATUTE AS TO PRODUCERS
ELIGIBLE TO VOTE AND THAT THE BALLOT WAS EITHER ACCORDED TO PRODUCERS
NOT ENTITLED TO VOTE OR DENIED TO QUALIFIED PRODUCERS.  SPECIFICALLY,
THE FOLLOWING ERRORS ARE URGED:  (1)  A LARGE NUMBER OF SOUTHERN AND
WESTERN PRODUCERS WHO DELIVERED TO STATIONS SHIPPING CREAM WERE NOT
PERMITTED TO VOTE.  (2) MANY NEW ENGLAND OR EASTERN NEW YORK PRODUCERS
VOTED WHO DELIVERED TO HANDLERS AT PLANTS WHICH SHIPPED ONLY CREAM IN
THE REPRESENTATIVE PERIOD.  (3) MANY VOTED WHO PRODUCED MILK ON FARMS
AS TO WHICH NO CERTIFICATE OF REGISTRATION HAD BEEN ISSUED, AS REQUIRED
BY SECS. 16A AND 16C OF THE MASSACHUSETTS MILK LAW.  FN9  (4) A NUMBER
OF APPROVING PRODUCERS DELIVERED MILK TO STATIONS WHICH SHIPPED LESS
THAN 50 PERCENT OF THEIR PRODUCT TO THE BOSTON AREA.  (5) COOPERATIVES
CAST VOTES IN FAVOR OF THE AMENDMENTS TO THE ORDER SOLELY THROUGH
BALLOTS CAST BY THEIR BOARDS OF DIRECTORS.  INCLUSION OF THE SOUTHERN
AND WESTERN SHIPPERS OF CREAM OR ELIMINATION OF ANY ONE OF THE
REMAINING GROUPS MIGHT HAVE CHANGED THE RESULT OF THE REFERENDUM. 

IT DOES NOT SEEM PROFITABLE TO EXPAND EACH OF THE CONTENTIONS OF THE
DEFENDANTS.  THE QUESTION IS SIMPLY WHETHER THE STATUTE WAS FOLLOWED. 
IT SEEMS TO US THAT IT WAS. 

THE ACT DOES NOT SUPPLY THE SECRETARY WITH DETAILED DIRECTIONS AS TO
THE MANNER OF HOLDING A REFERENDUM.  ITS LANGUAGE IS GENERAL.  THE
SECRETARY "MAY CONDUCT A REFERENDUM AMONG PRODUCERS."  FN10  WHAT
PRODUCERS?  THOSE "ENGAGED IN THE PRODUCTION OF (MILK) FOR SALE IN THE
MARKETING AREA.  ..."  FN11  EVERY PRODUCER WHO VOTED WAS SO ENGAGED. 
EACH DELIVERED MILK TO THE PLANT OF A HANDLER LICENSED  FN12  TO
DISTRIBUTE AND SELL FLUID MILK IN THE MARKETING AREA.  THE ORDER IS
AIMED AT THE HANDLING OF MILK MARKETED IN THE AREA.  THE PROBLEMS TO BE
SOLVED ARE THOSE ENGENDERED BY THE NECESSARY, YET TROUBLESOME, SURPLUS
OF FLUID MILK.  EVERY HANDLER TO WHOM THE VOTERS DELIVERED CONTRIBUTED
TO THAT SURPLUS. 

THE MILK OF THE SOUTHERN AND WESTERN PRODUCERS OUTSIDE THE MILK-SHED
COULD NOT BE SENT INTO THE MARKETING AREA IN FLUID FORM, FOR THEIR
HANDLERS WERE NOT LICENSED TO SELL MILK IN THE AREA.  THE STATION IN
INDIANA, USED IN THE HEARINGS AS ILLUSTRATIVE OF THE SITUATION, HELD A
LICENSE FOR THE EMERGENCY SHIPMENTS OF SWEET CREAM ONLY.  THE EXCLUSION
OF THE SOUTHERN AND WESTERN PRODUCERS, THEREFORE, WAS PROPER.  THEY ARE
LOCATED OUTSIDE THE BOSTON MILK-SHED; THEY DO NOT PRODUCE ANY PART OF
THE BURDENSOME SURPLUS OF FLUID MILK. 

THERE WAS NO ERROR IN PERMITTING THE REMAINING GROUPS OF PRODUCERS TO
VOTE.  THAT SOME HANDLERS TO WHOM VOTING PRODUCERS DELIVERED MILK
SHIPPED ONLY CREAM DURING THE REPRESENTATIVE PERIOD IS IMMATERIAL.  THE
FARMERS, IT WAS FOUND, CANNOT TELL WHEN THEY BRING IN THEIR MILK
WHETHER IT WILL BE SOLD BY THE HANDLERS AS MILK OR CREAM.  AS THESE
HANDLERS COULD HAVE SENT THE FLUID MILK TO THE AREA, AND IN MOST
INSTANCES DID, AT TIMES OTHER THAN THE REPRESENTATIVE PERIOD, THE MILK
DELIVERED TO THEM WAS A POTENTIAL PART OF THE SURPLUS.  THE PRODUCERS
WHO LACKED CERTIFICATES OF REGISTRATION WERE PROPERLY INCLUDED.  THEIR
MILK WAS SOLD IN THE AREA BY LICENSED HANDLERS.  FN13 NOR CAN IT MAKE
ANY DIFFERENCE THAT LESS THAN 50 PERCENT OF THE MILK OF SOME STATIONS
WAS SHIPPED TO THE MARKETING AREA DURING THE REPRESENTATIVE PERIOD. 
THERE IS NOTHING IN THE ACT THAT COMPELS ADOPTING 50 PERCENT AS
DETERMINATIVE.  IT WAS ENOUGH THAT THE HANDLERS OF THESE PRODUCERS DID
SEND SOME PART, AND COULD HAVE SENT ALL. 

TWO COOPERATIVES VOTED FOR THEIR MEMBERS IN FAVOR OF THE AMENDMENTS
TO THE ORDER.  FN14  NO POLL WAS TAKEN OF THE INDIVIDUAL PRODUCER
MEMBERS.  NOR WAS THERE ANY SUBSEQUENT APPROVAL BY THEM OF THE ACTION
TAKEN ON THEIR BEHALF BY THE COOPERATIVES.  SECTION 8C (12) DIRECTS THE
SECRETARY TO CONSIDER THE APPROVAL OR DISAPPROVAL OF CO-OPERATIVES AS
THE APPROVAL OR DISAPPROVAL OF MEMBERS.  THIS IS COMPLETE AUTHORITY FOR
THE ACTION OF THE SECRETARY.  HE NEED NOT REQUIRE FURTHER REFERENDUMS
BY COOPERATIVES THEMSELVES.  PRESUMABLY THEY WILL VOTE WITH AN EYE TO
THE BEST INTEREST OF THEIR MEMBERS. 

VIOLATION OF ORDER.  THE DECREE DIRECTS THE DEFENDANTS TO PAY TO THE
MARKET ADMINISTRATOR FOR DISTRIBUTION TO THE PRODUCERS THROUGH THE
EQUALIZATION FUND THE AMOUNTS WHICH HE HAD BILLED TO THEM UNDER THE
ORDER.  THE DEFENDANTS H. P. HOOD & SONS AND NOBLE'S MILK COMPANY
CONTEND THAT THE BILLS INCLUDE IN THEIR COMPUTATION MILK PLAINLY
EXCLUDED BY THE TERMS OF THE ORDER BECAUSE THE PRODUCT OF DAIRIES
WITHOUT THE CERTIFICATES OF REGISTRATION REQUIRED BY MASSACHUSETTS
GENERAL LAWS, CHAPTER 94, SECS. 16A ET SEQ. UNDER THESE SECTIONS NO
PERSON MAY SELL MILK KNOWN TO HAVE BEEN PRODUCED ON UNREGISTERED
FARMS.  IT IS NOT DISPUTED THAT MILK FROM SUCH FARMS FIGURED IN THE
OPERATION OF THE EQUALIZATION POOL.  THE EXPLANATION OF THE PLAINTIFFS
IS THAT THE ORDER COVERS THIS MILK. 

THE ADMINISTRATOR SEEKS PAYMENT ON THE BASIS OF ALL MILK RECEIVED BY
LICENSED HANDLERS FOR USE IN THE MARKETING AREA.  IT WAS FOUND THAT
MILK RECEIVED AT A COUNTRY PLANT WAS INCLUDED IN THE COMPUTATION IF THE
ADMINISTRATOR KNEW THE PLANT WAS APPROVED FOR SHIPMENT OF FLUID MILK BY
A CITY OR TOWN OF THE MARKETING AREA.  BY STATUTE HANDLERS ARE REQUIRED
TO HAVE A LICENSE TO HANDLE MILK IN ANY TOWN WHERE AN INSPECTOR OF MILK
IS APPOINTED AND A PERMIT FROM THE LOCAL BOARD OF HEALTH, FN15  AND
THEY MUST REGISTER WITH THE DIRECTOR OF THE DAIRYING DIVISION OF THE
STATE DEPARTMENT OF AGRICULTURE.  FN16 

AS THE ACTION OF HANDLERS FORMS THE GROUND FOR THE INITIATION OF
REGULATION UNDER THE ACT  FN17 AND FOR CLASSIFICATION, REPORTS,
CALCULATION AND PAYMENT UNDER THE ORDER,  FN18  WE CONCLUDE THAT THE
MILK RECEIVED BY HANDLERS FOR USE IN THE AREA IS THE PROPER BASIS OF
COMPUTATION.  TRUE, THE REPORTS ARE BASED ON THE DELIVERY OF MILK BY
DEFINED PRODUCERS BUT IN VIEW OF THE TERMS OF THE ORDER AS A WHOLE, WE
ARE OF THE OPINION THE MILK FROM UNREGISTERED FARMS MUST ALSO BE
REPORTED.  THE ACT AND ORDER REGULATE MARKETING.  IN VIOLATING THE
STATE HEALTH LAWS BY KNOWINGLY SELLING MILK FROM UNREGISTERED FARMS,
PRODUCERS, AND HANDLERS MAY RISK PROSECUTION BY THE MASSACHUSETTS
AUTHORITIES.  NEVERTHELESS, THE HANDLERS MUST CONFORM TO THE ORDER.  IT
IS THE MILK HANDLED, NOT THE MILK PRODUCED, WHICH IS DETERMINATIVE. 
THE ADMINISTRATOR WAS JUSTIFIED IN USING MILK RECEIVED AT AN APPROVED
PLANT FOR COMPUTATION.  IT MAY BE ADDED THAT UNDER THE STATE AND TOWN
REGULATIONS THE MUNICIPALITIES IN THE MARKETING AREA, THROUGH THEIR
CONTROL OVER LICENSES AND PERMITS, HAVE THE POWER TO SUPERVISE THE
HANDLERS TO SEE THAT THEY COMPLY WITH THE LAW FORBIDDING SALES FROM
UNLICENSED FARMS.  FN19 

THE FURTHER CONTENTION IS MADE THAT THE SECRETARY FAILED TO MAKE A
FINDING AS TO THE TENDENCY OF THE REINSTATEMENT OF THE ORIGINAL ORDER
TO EFFECTUATE THE POLICY OF THE ACT.  THIS IS CONCEDED.  THE ORDER WAS
REINSTATED IN PART AS OF JULY 1, 1937.  IT WAS THEREAFTER AMENDED AFTER
HEARINGS AND ON JULY 28, 1937, THE ORDER AS AMENDED WAS PROMULGATED
WITH THE FINDING "THAT THE ISSUANCE OF THE AMENDMENT TO THE ORDER AND
ALL OF THE TERMS AND CONDITIONS OF THE ORDER, AS AMENDED, WILL TEND TO
EFFECTUATE THE DECLARED POLICY OF THE ACT."  WE ARE OF THE VIEW THAT
THIS FINDING CURED ANY OMISSION, IF SUCH A FINDING PRIOR TO
REINSTATEMENT WERE NECESSARY, AS TO WHICH WE EXPRESS NO OPINION.  WHILE
ORDER NO. 4 WAS PARTLY IN EFFECT PRIOR TO THIS AMENDMENT, THE FINDING
COVERED THE ENTIRE ORDER NO. 4 AS AMENDED, AND THE LANGUAGE OF THE
ORDER PROMULGATING THE AMENDMENTS IS AN APPROVAL OF ORDER NO. 4 AS
AMENDED, AS TENDING TO EFFECTUATE THE DECLARED POLICY OF THE ACT. 

OTHER CONTENTIONS ARE MADE WHICH HAVE BEEN CONSIDERED BUT THEY DO NOT
SEEM TO REQUIRE ANY STATEMENT.  AFFIRMED. 

FN1  ACT OF JUNE 3, 1937, 50 STAT. 246. 

FN2  ACT OF MAY 12, 1933, 48 STAT. 31, AS AMENDED AUGUST 24, 1935, 49
STAT. 750. 

FN3  UNITED STATES V. DAVID BUTTRICK CO., 15 F.SUPP.  655, REVERSED
IN 91 F.2D 66. 

FN4  ONLY DEFENDANT IN NO. 809 MAKES THIS CONTENTION. 

FN5  "SEC.  8E.  IN CONNECTION WITH THE MAKING OF ANY MARKETINNG
AGREEMENT OR THE ISSUANCE OF ANY ORDER, IF THE SECRETARY FINDS AND
PROCLAIMS THAT, AS TO ANY COMMODITY SPECIFIED IN SUCH MARKETING
AGREEMENT OR ORDER, THE PURCHASING POWER DURING THE BASE PERIOD
SPECIFIED FOR SUCH COMMODITY IN SECTION 2 OF THIS TITLE CANNOT BE
SATISFACTORILY DETERMINED FROM AVAILABLE STATISTICS OF THE DEPARTMENT
OF AGRICULTURE, THE BASE PERIOD, FOR THE PURPOSES OF SUCH MARKETING
AGREEMENT OR ORDER, SHALL BE THE POST-WAR PERIOD, AUGUST 1919-JULY
1929, OR ALL THAT PORTION THEREOF FOR WHICH THE SECRETARY FINDS AND
PROCLAIMS THAT THE PURCHASING POWER OF SUCH COMMODITY CAN BE
SATISFACTORILY DETERMINED FROM AVAILABLE STATISTICS OF THE DEPARTMENT
OF AGRICULTURE." 

FN6  ARMSTRONG PAINT & VARNISH WORKS V. NU-ENAMEL CORP., 305 U.S.
315, 329. 

FN7  "ORDER NO. 2, AMENDED JUNE 5, 1936(1 FED. REG. 549); ORDER NO.
3, AMENDED APRIL 13, 1936(1 FED. REG. 185), AND MARCH 29, 1937(2 FED.
REG. 616), AND MARCH 31, 1939(4 FED. REG. 1404); ORDER NO. 4, AMENDED
JULY 28, 1937(2 FED. REG. 1331), AND JANUARY 13, 1939(4 FED. REG. 249);
ORDER NO. 5, AMENDED MARCH 29, 1937(2 FED. REG. 614); ORDER NO. 7,
AMENDED OCTOBER 24, 1936(1 FED. REG. 1662); ORDER NO. 11, AMENDED
NOVEMBER 17, 1936(1 FED. REG. 1979); ORDER NO. 12, AMENDED FEBRUARY 24,
1937(2 FED. REG. 354); ORDER NO. 15, PROCLAMATION DATED SEPTEMBER 10,
1938(3 FED. REG. 2222), AMENDMENT DATED SEPTEMBER 10, 1938(3 FED. REG.
2222); ORDER NO. 20, AMENDED AUGUST 15, 1938(3 FED. REG. 2015)." 

FN8  THE ALTERNATIVE PROVISIONS MAY BE DISREGARDED IN THIS CASE. 

FN9  MASS. ANN. LAWS, C. 94, SECS. 12-48. 

FN10  SEC. 8C(19). 

FN11  SEC. 8C (9)(B)(I). 

FN12  MASS. ANN. LAWS, C. 94, SEC. 40. 

FN13  COMPARE THE DISCUSSION UNDER THE NEXT HEADING, VIOLATION OF
ORDER. 

FN14  SEE UNITED STATES V. ROCK ROYAL CO-OPERATIVE, ANTE, 533, 556. 

FN15  MASS. ANN. LAWS, C. 94, SECS. 40, 43. 

FN16  ID., SEC. 16F. 

FN17  SEC. 8C.  "(1)  THE SECRETARY OF AGRICULTURE SHALL, SUBJECT TO
THE PROVISIONS OF THIS SECTION, ISSUE, AND FROM TIME TO TIME AMEND,
ORDERS APPLICABLE TO PROCESSORS, ASSOCIATIONS OF PRODUCERS, AND OTHERS
ENGAGED IN THE HANDLING OF ANY AGRICULTURAL COMMODITY OR PRODUCT
THEREOF SPECIFIED IN SUBSECTION (2) OF THIS SECTION.  SUCH PERSONS ARE
REFERRED TO IN THIS TITLE AS 'HANDLERS.'  SUCH ORDERS SHALL REGULATE,
IN THE MANNER HEREINAFTER IN THIS SECTION PROVIDED, ONLY SUCH HANDLING
OF SUCH AGRICULTURAL COMMODITY, OR PRODUCT THEREOF, AS IS IN THE
CURRENT OF INTERSTATE OR FOREIGN COMMERCE, OR WHICH DIRECTLY BURDENS,
OBSTRUCTS, OR AFFECTS, INTERSTATE OR FOREIGN COMMERCE IN SUCH COMMODITY
OR PRODUCT THEREOF." 

FN18  ARTICLE III.  "SECTION 1.  SALES AND USE CLASSIFICATION.  -
MILK PURCHASED OR HANDLED BY HANDLERS SHALL BE CLASSIFIED AS FOLLOWS: 

"1.  ALL MILK SOLD OR DISTRIBUTED AS MILK, CHOCOLATE MILK, OR
FLAVORED MILK AND ALL MILK NOT SPECIFICALLY ACCOUNTED FOR AS CLASS II
MILK SHALL BE CLASS I MILK; AND 

"2.  MILK SPECIFICALLY ACCOUNTED FOR (A) AS BEING SOLD, DISTRIBUTED,
OR DISPOSED OF OTHER THAN AS MILK, CHOCOLATE MILK, OR FLAVORED MILK AND
(B) AS ACTUAL PLANT SHRINKAGE WITHIN REASONABLE LIMITS SHALL BE CLASS
II MILK." 

ARTICLE V. "SECTION 1.  PERIODIC REPORTS.  - ON OR BEFORE THE EIGHTH
DAY AFTER THE END OF EACH DELIVERY PERIOD, EACH HANDLER SHALL, EXCEPT
AS SET FORTH IN SECTION 1 OF ARTICLE VI, WITH RESPECT TO MILK OR CREAM
WHICH WAS, DURING SUCH DELIVERY PERIOD, (A) RECEIVED FROM PRODUCERS,
(B) RECEIVED FROM HANDLERS, OR (C) PRODUCED BY SUCH HANDLER, REPORT TO
THE MARKET ADMINISTRATOR IN THE DETAIL AND FORM PRESCRIBED BY THE
MARKET ADMINISTRATOR, AS FOLLOWS: 

"1.  THE RECEIPTS AT EACH PLANT FROM PRODUCERS WHO ARE NOT HANDLERS; 

"2.  THE RECEIPTS AT EACH PLANT FROM ANY OTHER HANDLER, INCLUDING ANY
HANDLER WHO IS ALSO A PRODUCER; 

"3.  THE QUANTITY, IF ANY, PRODUCED BY SUCH HANDLER; AND 

"4.  THE RESPECTIVE QUANTITIES OF MILK WHICH WERE SOLD, DISTRIBUTED,
OR USED, INCLUDING SALES TO OTHER HANDLERS, FOR THE PURPOSE OF
CLASSIFICATION PURSUANT TO ARTICLE III." 

ARTICLE VII.  "SECTION 1.  COMPUTATION OF VALUE OF MILK FOR EACH
HANDLER.  - FOR EACH DELIVERY PERIOD THE MARKET ADMINISTRATOR SHALL
COMPUTE, SUBJECT TO THE PROVISIONS OF ARTICLE VI, THE VALUE OF MILK
SOLD OR USED BY EACH HANDLER, WHICH WAS NOT PURCHASED FROM OTHER
HANDLERS, BY (A) MULTIPLYING THE QUANTITY OF SUCH MILK IN EACH CLASS BY
THE PRICE APPLICABLE PURSUANT TO SECTIONS 2, 3, AND 4 OF ARTICLE IV AND
(B) ADDING TOGETHER THE RESULTING VALUE OF EACH CLASS." 

ARTICLE VIII.  "SECTION 1.  TIME AND METHOD OF PAYMENT.  - ON OR
BEFORE THE 25TH DAY AFTER THE END OF EACH DELIVERY PERIOD EACH HANDLER
SHALL MAKE PAYMENT, SUBJECT TO THE BUTTERFAT DIFFERENTIAL SET FORTH IN
SUCH DELIVERY PERIOD AS REQUIRED TO BE COMPUTED PURSUANT TO SECTION 1
OF ARTICLE VII, AS FOLLOWS: 

"1.  TO EACH PRODUCER, EXCEPT AS SET FORTH IN PARAGRAPH 2 OF THIS
PRODUCER; 

"2.  TO ANY PRODUCER, WHO DID NOT REGULARLY SELL MILK FOR A PERIOD OF
THIRTY DAYS PRIOR TO THE EFFECTIVE DATE HEREOF TO A HANDLER OR TO
PERSONS WITHIN THE MARKETING AREA, AT THE CLASS II PRICE, IN EFFECT FOR
THE PLANT AT WHICH SUCH PRODUCER DELIVERED MILK, FOR ALL THE MILK
DELIVERED BY SUCH PRODUCER DURING THE PERIOD BEGINNING WITH THE FIRST
REGULAR DELIVERY OF SUCH PRODUCER AND CONTINUING UNTIL THE END OF TWO
FULL CALENDAR MONTHS FOLLOWING THE FIRST DAY OF THE NEXT SUCCEEDING
CALENDAR MONTH;    "3.  TO PRODUCERS, THROUGH THE MARKET ADMINISTRATOR,
BY PAYING TO OR RECEIVING FROM THE MARKET ADMINISTRATOR, AS THE CASE
MAY BE, THE AMOUNT BY WHICH THE PAYMENTS MADE PURSUANT TO PARAGRAPHS 1
AND 2 OF THIS SECTION ARE LESS THAN, OR EXCEED, THE VALUE OF MILK AS
REQUIRED TO BE COMPUTED FOR SUCH HANDLER PURSUANT TO SECTION 1 OF
ARTICLE VII, AS SHOWN IN A STATEMENT RENDERED BY THE MARKET
ADMINISTRATOR ON OR BEFORE THE TWENTIETH DAY AFTER THE END OF SUCH
DELIVERY PERIOD." 

FN19  MASS. ANN. LAWS, C. 6 AND C. 94, SECS. 16A, 16F, 40, 41, 43. 

MR. JUSTICE ROBERTS, DISSENTING. 

I REGRET THAT I CANNOT CONCUR IN THE COURT'S DISPOSITION OF THESE
CASES.  I FIND IT UNNECESSARY TO CONSIDER WHETHER THE ORDER COMPLIED
WITH THE TERMS OF THE ACT OR WHETHER THE ACT OR THE ORDER DEPRIVED THE
APPELLEES OF THEIR PROPERTY WITHOUT DUE PROCESS.  I AM OF OPINION THAT
THE ACT UNCONSTITUTIONALLY DELEGATES LEGISLATIVE POWER TO THE SECRETARY
OF AGRICULTURE. 

VALID DELEGATION IS LIMITED TO THE EXECUTION OF A LAW.  IF POWER IS
DELEGATED TO MAKE A LAW, OR TO REFRAIN FROM MAKING IT, OR TO DETERMINE
WHAT THE LAW SHALL COMMAND OR PROHIBIT, THE DELEGATION IGNORES AND
TRANSGRESSES THE CONSTITUTIONAL DIVISION OF POWER BETWEEN THE
LEGISLATIVE AND THE EXECUTIVE BRANCHES OF THE GOVERNMENT. 

IN MY VIEW THE ACT VESTS IN THE SECRETARY AUTHORITY TO DETERMINE,
FIRST, WHAT OF A NUMBER OF ENUMERATED COMMODITIES SHALL BE REGULATED;
SECOND, IN WHAT AREAS THE COMMODITY SHALL BE REGULATED; THIRD, THE
PERIOD OF REGULATION, AND, FOURTH, THE CHARACTER OF REGULATION TO BE
IMPOSED; AND, FOR THESE REASONS, CANNOT BE SUSTAINED. 

THE STATUTE IS AN ATTEMPTED DELEGATION TO AN EXECUTIVE OFFICER OF
AUTHORITY TO IMPOSE REGULATIONS WITHIN SUPPOSED LIMITS AND ACCORDING TO
SUPPOSED STANDARDS SO VAGUE AS IN EFFECT TO INVEST HIM WITH
UNCONTROLLED POWER OF LEGISLATION.  CONGRESS HAS NOT DIRECTED THAT THE
MARKETING OF MILK SHALL BE REGULATED.  CONGRESS HAS NOT DIRECTED THAT
REGULATION SHALL BE IMPOSED THROUGHOUT THE UNITED STATES OR IN ANY
SPECIFIED PORTION THEREOF.  IT HAS LEFT THE CHOICE OF BOTH LOCATIONS
AND AREAS TO THE SECRETARY.  CONGRESS HAS NOT PROVIDED THAT REGULATION
ANYWHERE SHALL BECOME EFFECTIVE AT ANY SPECIFIED DATE, OR REMAIN
EFFECTIVE FOR ANY SPECIFIED PERIOD.  CONGRESS HAS PERMITTED SUCH A
VARIETY OF FORMS OF REGULATION AS TO INVEST THE SECRETARY WITH A CHOICE
OF DISCRETE SYSTEMS EACH HAVING THE CHARACTERISTICS OF AN INDEPENDENT
AND COMPLETE STATUTE. 

OF EIGHT SPECIFIED AGRICULTURAL PRODUCTS.  IT EMBODIES NO DIRECTIONS AS
TO THE SPECIFIC CONDITIONS WHICH SHALL MOVE HIM TO ISSUE ORDERS
AFFECTING EACH OF THE NAMED COMMODITIES.  THE SAME SECTION PERMITS THE
PROMULGATION OF ORDERS APPLICABLE TO SPECIFIED REGIONS.  IT OMITS ANY
RESTRICTION OR DIRECTION AS TO THE SIZE OR LOCATION OF THE AREA TO BE
AFFECTED BY A REGIONAL ORDER.  IT LEAVES THE SECRETARY FREE TO
DETERMINE WHEN REGULATION SHALL BECOME EFFECTIVE, WHEN IT SHALL BE
TERMINATED THROUGHOUT THE UNITED STATES OR IN ANY PORTION THEREOF. 

THE SUPPOSED STANDARDS BY WHICH THE SECRETARY IS TO BE GOVERNED TURN
OUT, UPON EXAMINATION, TO BE NO STANDARDS WHATEVER.  ALL OF THE CHOICES
MENTIONED ARE, ACCORDING TO THE ACT, TO BE MADE IF THE SECRETARY HAS
REASON TO BELIEVE, OR FINDS, THAT HIS PROPOSED ACTION WILL "TEND TO
EFFECTUATE THE DECLARED POLICY" OF THE ACT.* 

*SEE SEC. 8C (3), 8C (4), 8C (16). 

WE TURN, THEREFORE, TO SEC. 2, WHICH DECLARES THE POLICY OF THE
CONGRESS TO BE:  "THROUGH THE EXERCISE OF THE POWERS CONFERRED UPON THE
SECRETARY OF AGRICULTURE UNDER THIS TITLE, TO ESTABLISH AND MAINTAIN
SUCH ORDERLY MARKETING CONDITIONS FOR AGRICULTURAL COMMODITIES IN
INTERSTATE COMMERCE AS WILL ESTABLISH PRICES TO FARMERS AT A LEVEL THAT
WILL GIVE AGRICULTURAL COMMODITIES A PURCHASING POWER WITH RESPECT TO
ARTICLES THAT FARMERS BUY, EQUIVALENT TO THE PURCHASING POWER OF
AGRICULTURAL COMMODITIES IN THE BASE PERIOD," WHICH BASE PERIOD IS
DEFINED AS A PERIOD OF YEARS ANTEDATING THE PASSAGE OF THE ACT.  THE
SECRETARY TO BE "TO PROTECT THE INTEREST OF THE CONSUMER BY (A)
APPROACHING THE LEVEL OF PRICES WHICH IT IS DECLARED TO BE THE POLICY
OF CONGRESS TO ESTABLISH IN SUBSECTION (1) OF THIS SECTION BY GRADUAL
CORRECTION OF THE CURRENT LEVEL AT AS RAPID A RATE AS THE SECRETARY OF
AGRICULTURE DEEMS TO BE IN THE PUBLIC INTEREST AND FEASIBLE IN VIEW OF
THE CURRENT CONSUMPTIVE DEMAND IN DOMESTIC AND FOREIGN MARKETS, AND (B)
AUTHORIZING NO ACTION UNDER THIS TITLE WHICH HAS FOR ITS PURPOSE THE
MAINTENANCE OF PRICES TO FARMERS ABOVE THE LEVEL WHICH IT IS DECLARED
TO BE THE POLICY OF CONGRESS TO ESTABLISH IN SUBSECTION (1) OF THIS

ASSUMING THAT ANY OF THESE PROPOSED ENDS OR AIMS WERE IN THEMSELVES
CAPABLE OF REASONABLE DEFINITION, IT IS, NEVERTHELESS, EVIDENT THAT THE
SECRETARY IS TO FORM A JUDGMENT BY BALANCING A PRICE RAISING POLICY
AGAINST A CONSUMER-PROTECTION POLICY, ACCORDING TO HIS VIEWS OF
FEASIBILITY AND PUBLIC INTEREST. 

IF THEN THE SEPARATE OBJECTS TO BE ATTAINED WERE MATTERS SUSCEPTIBLE
OF A DEFINITE FINDING THERE WOULD STILL BE THE INESCAPABLE RESULT THAT,
AFTER SUCH DEFINITE FINDING AS TO EACH PROPOSED AIM, THERE MUST BE AN
EXERCISE OF JUDGMENT AS TO THE EXTENT TO WHICH THAT AIM SHOULD BE
ACCOMPLISHED IN THE LIGHT OF OTHER AND CONFLICTING AIMS.  AND THERE
WOULD STILL REMAIN THE FACT THAT THE CONCLUSION MIGHT BE AGAINST ANY
REGULATION BY REASON OF THE SECRETARY'S UNRESTRAINED JUDGMENT THAT, IN
THE CIRCUMSTANCES, REGULATION IS NOT "FEASIBLE." 

ENOUGH HAS BEEN SAID TO SHOW THAT A LAW IS TO COME INTO BEING ON THE
BASIS OF THE SECRETARY'S SOLE JUDGMENT AS TO ITS PROBABLE EFFECT UPON
THE MILK INDUSTRY, ITS PROBABLE EFFECT UPON THE CONSUMER, ITS PROBABLE
CONSONANCE WITH THE PUBLIC INTEREST, AND ITS FEASIBILITY.  THE
RESOLUTION OF ALL SUCH PROBLEMS IS OF THE ESSENCE OF LAW MAKING. 

BUT IF, AS THE ACT DISCLOSES, THE SUPPOSED STANDARDS WHEREBY THE
SECRETARY IS TO ASCERTAIN THE ELEMENTS WHICH ARE TO DETERMINE HIS
ULTIMATE DECISION ARE THEMSELVES SO VAGUE THAT NEITHER HE NOR ANYONE
CAN ACCURATELY APPLY THEM, THE UNLIMITED NATURE OF THE DELEGATION
BECOMES EVEN CLEARER. 

THE FIRST THING THE SECRETARY IS PERMITTED TO ACCOMPLISH BY
REGULATION, SO THE STATUTE DECLARES, IS THE PARITY IN PURCHASING POWER
OF THE PRICE TO BE RECEIVED BY PRODUCERS WITH THAT RECEIVED IN THE BASE
PERIOD.  THIS PARITY IS TO BE IN TERMS OF THINGS FARMERS PURCHASE.  A
MOMENT'S REFLECTION WILL SHOW THAT ANY CALCULATION OF SUCH PARITY IS
IMPOSSIBLE.  THE THINGS FARMERS PURCHASE, THE RELATIVE QUANTITIES IN
WHICH THEY PURCHASE THEM, AND THEIR PRICE IN TERMS OF MILK, VARY FROM
MONTH TO MONTH AND FROM YEAR TO YEAR.  MOREOVER, THE SECRETARY IS NOT
TO ESTABLISH A PARITY BETWEEN TWO PAST PERIODS BUT IS TO REGULATE THE
INDUSTRY IN SUCH FASHION AS WILL, IN HIS OPINION, PRODUCE FOR THE
FUTURE A PARITY OF THE PURCHASING POWER OF MILK WITH ITS PURCHASING
POWER IN THE BASE PERIOD.  THE SECRETARY'S CONCLUSION MUST LIE IN THE
REALM OF HOPE OR OPINION AND NOT IN THAT OF ASCERTAINED FACT.  THE
MAJOR OBJECTIVE OF THE ACT IS IN TRUTH TO RAISE PRICES PAID FARMERS FOR
MILK.  THE UPWARD LIMIT IS REALLY LEFT TO THE SECRETARY'S UNCONTROLLED
DISCRETION. 

TURN NOW TO ANOTHER ALLEGED STANDARD WHICH IS TO CONTROL THE
SECRETARY'S ACTION.  HE IS NOT TO RAISE PRICES SO FAST AS TO INJURE THE
INTEREST OF THE CONSUMER BUT IS TO RAISE THEM GRADUALLY BY CORRECTION
OF THE CURRENT LEVEL AT AS RAPID A RATE AS HE DEEMS TO BE IN THE PUBLIC
INTEREST AND FEASIBLE IN VIEW OF CONSUMPTIVE DEMAND.  IT IS FAIR TO ASK
WHETHER THIS CONSTITUTES A STANDARD AT ALL.  WHAT IS THE PUBLIC
INTEREST?  MUST NOT CONGRESS ASCERTAIN AND DECLARE IT?  WHAT IS
FEASIBLE IN THE WAY OF REGULATION?  IS NOT THIS A MATTER FOR
LEGISLATIVE JUDGMENT.  HOW IS ANY ONE TO TELL WHETHER THE SECRETARY HAS
DISOBEYED THE MANDATE OF CONGRESS IN THESE RESPECTS? 

THERE IS IN THE ACT A FURTHER DELEGATION OF POWER.  CONGRESS MIGHT,
ALTHOUGH COMMITTING TO THE SECRETARY'S WILL AND JUDGMENT THE MATTERS
ABOVE ENUMERATED, HAVE DIRECTED HIM HOW TO REGULATE THE INDUSTRY IF HE
DETERMINED SO TO DO.  IT MIGHT HAVE CONSIDERED THE POSSIBLE MODES OF
REGULATION AND PROVIDED WHICH OF THEM THE SECRETARY SHOULD ADOPT.  THE
ACT DOES NO SUCH THING.  IT LEAVES TO THE SECRETARY THE CHOICE OF
DIFFERENT AND MUTUALLY EXCLUSIVE METHODS OF CONTROL. 

IN THE ACT.  THE FIRST REQUIRES THAT ANY ORDER AFFECTING MILK MUST
CONTAIN ONE, AND MAY CONTAIN OTHERS, OF SEVEN SPECIFIED CONDITIONS. 
THE SECOND REQUIRES THAT IN ANY ORDER THERE MUST BE INCLUDED ONE, AND
THERE MAY BE INCLUDED OTHERS, OR FOUR CONDITIONS.  THESE SECTIONS GIVE
THE SECRETARY THE CHOICE OF THREE INDEPENDENT PROGRAMS FOR RAISING THE
PRICE OF MILK, NAMELY, BARGAINING WITH HANDLERS, STABILIZING THE RETAIL
PRICE, OR FIXING PRICES TO BE PAID PRODUCERS.  WITHIN EACH, VARIATION
OF THE WIDEST SORT IS ALLOWED.  MOREOVER, THE ACT PERMITS ALTERNATIVE
SCHEMES FOR DISTRIBUTING AMONGST THE PRODUCERS THE DOLLAR VALUE OF MILK
SOLD IN THE AREA TO WHICH THE SECRETARY'S ORDER APPLIES.  THE
DIFFERENCES BETWEEN THE PERMISSIBLE SCHEMES ARE NOT MATTERS OF MERE
DETAIL BUT ARE BASIC AND FUNDAMENTAL. 

IN RESPECT OF THE CHOICE OF METHOD, THE ONLY GUIDE IS THE DECLARATION
OF POLICY EMBODIED IN SEC. 2.  IF THE SECRETARY IS OF OPINION THAT ONE
METHOD IS MORE LIKELY TO RAISE PRICES THAN ANOTHER HE IS AT LIBERTY TO
PUT INTO THE FORM OF AN ORDER WHAT IS TANTAMOUNT TO A STATUTE
PRESCRIBING THE METHOD OF HIS CHOICE.  THUS THE SECRETARY IS TO DECIDE
NOT ONLY WHETHER THERE IS TO BE A LAW BUT, AS WELL, THE NATURE OF THE
LAW TO BE ENACTED. 

WHAT WAS SAID CONCERNING UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE
POWER IN PANAMA REFINING CO. V. RYAN, 293 U.S. 388, AND SCHECHTER
POULTRY CORP. V. UNITED STATES, 295 U.S. 495, APPLIES WITH EQUAL FORCE
HERE.  COMPARISON OF THE PROVISIONS OF THE ACT RESPECTING FLUE-CURED
TOBACCO, WHICH ARE SUMMARIZED IN MULFORD V. SMITH, ANTE, P. 38, WITH
THOSE APPLICABLE TO MILK, WILL DISCLOSE THE FUNDAMENTAL DIFFERENCE
BETWEEN THE ADMINISTRATIVE CHARACTER OF THE POWERS DELEGATED IN THE
CASE OF TOBACCO AND THE LEGISLATIVE CHARACTER OF THOSE DELEGATED IN THE
CASE OF MILK.  NO AUTHORITY CITED BY THE GOVERNMENT PRESENTS A
SITUATION COMPARABLE TO THAT HERE DISCLOSED.  IT WOULD NOT BE
PROFITABLE TO ANALYZE EACH OF THE CASES BECAUSE IN EACH THE QUESTION OF
THE NATURE OF THE STATUTORY STANDARD AND ITS APPLICATION IN THE
ADMINISTRATION OF THE STATUTE INVOLVED DEPENDED UPON THE FIELD WHICH
THE LEGISLATION COVERED.  WHERE DELEGATION HAS BEEN SUSTAINED THE COURT
HAS BEEN CAREFUL TO POINT OUT THE CIRCUMSTANCES WHICH MADE IT POSSIBLE
TO PRESCRIBE A STANDARD BY WHICH ADMINISTRATIVE ACTION WAS CONFINED AND
DIRECTED.  SUCH A STANDARD, AS RESPECTS MILK MARKETING, IS LACKING IN
THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937. 

I THINK THAT THE DECREE SHOULD BE REVERSED. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER JOIN IN THIS OPINION. 
..END :






NEWARK FIRE INS. CO. V. STATE BOARD, 307 U.S. 313 


NO. 449.  ARGUED APRIL 18, 19, 1939.  - DECIDED MAY 29, 1939.  - 120
N.J.L. 185 - ID. 224 - 198 A. 836, 837, AFFIRMED. 


A TAX ASSESSED UNDER A STATUTE OF NEW JERSEY AGAINST AN INSURANCE
COMPANY INCORPORATED UNDER THE LAWS OF THAT STATE, UPON THE FULL AMOUNT
OF ITS CAPITAL STOCK PAID IN AND ACCUMULATED SURPLUS, LESS CERTAIN
DEDUCTIONS FOR LIABILITIES AND STATUTORY EXEMPTIONS - RESISTED AS
VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ON THE
GROUND THAT THE BUSINESS SITUS OF ITS INTANGIBLES AND THE TAX DOMICILE
OF THE CORPORATION WERE IN NEW YORK - SUSTAINED. 

BY REED, J., WITH WHOM THE CHIEF JUSTICE AND BUTLER AND ROBERTS, JJ.,
CONCURRED. 

1.  IN SO FAR AS THE CONCLUSION AS TO THE EXISTENCE OF A BUSINESS
SITUS FOR THE PURPOSE OF TAXATION, DISTINCT FROM THE DOMICILIARY SITUS,
IS THE BASIS FOR A CLAIM OF FEDERAL RIGHT, THE DUTY OF INQUIRING INTO
THE EVIDENCE WHICH ESTABLISHES SUCH BUSINESS SITUS RESTS UPON THIS
COURT.  P. 319. 

2.  THE FACTS PRESENTED BY THIS RECORD ARE INSUFFICIENT TO ESTABLISH
THAT THE CORPORATION'S INTANGIBLES HAD A BUSINESS SITUS IN NEW YORK AND
TO OVERCOME THE PRESUMPTION OF A TAXABLE SITUS SOLELY IN NEW JERSEY. 
P. 321. 

BY FRANKFURTER, J., WITH WHOM STONE, BLACK, AND DOUGLAS, JJ.,
CONCURRED. 

THE TAX AS APPLIED IS A CLEARLY CONSTITUTIONAL EXERTION OF THE TAXING
POWER OF A STATE OVER A CORPORATION OF ITS OWN CREATION; AND CREAM OF
WHEAT CO. V. GRAND FORKS, 253 U.S. 325, AND THE CASES WHICH HAVE
FOLLOWED IT, AFFORD A WHOLLY ADEQUATE BASIS FOR SUSTAINING IT.
QUESTIONS AFFECTING THE FICTIONAL "SITUS" OF INTANGIBLES ARE IRRELEVANT
HERE.  P. 324. 

NEWARK FIRE INSURANCE CO. V. STATE BOARD OF TAX APPEALS ET AL.* 

*TOGETHER WITH NO. 456, UNIVERSAL INSURANCE CO. ET AL. V. STATE BOARD
OF TAX APPEALS ET AL., ALSO ON APPEAL FROM THE COURT OF ERRORS AND
APPEALS OF NEW JERSEY. 

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

APPEALS FROM AFFIRMANCES OF JUDGMENTS SUSTAINING THE VALIDITY OF A
STATE TAX, 118 N.J.L. 525, 538; 193 A. 912, 915. 

THE CHIEF JUSTICE ANNOUNCED THE JUDGMENTS OF THE COURT, VIZ., THAT
THE JUDGMENTS ARE AFFIRMED WITH COSTS.  MR. JUSTICE MCREYNOLDS
DISSENTING. 

MR. JUSTICE REED ANNOUNCED AN OPINION IN WHICH THE CHIEF JUSTICE, MR.
JUSTICE BUTLER AND MR. JUSTICE ROBERTS CONCURRED. 

THE CONTROVERSY IN NO. 449 RELATES TO THE JURISDICTION OF NEW JERSEY
TO TAX THE APPELLANT UPON THE FULL AMOUNT OF ITS CAPITAL STOCK PAID IN
AND ACCUMULATED SURPLUS.  THE CASE IS HERE BY APPEAL UNDER SEC. 237(A)
OF THE JUDICIAL CODE.  FN1 

CHAPTER 236 OF THE LAWS OF 1918  FN2  IS A GENERAL ACT FOR THE
ASSESSMENT AND COLLECTION OF TAXES.  SECTION 202 SUBJECTS ALL REAL AND
PERSONAL PROPERTY WITHIN THE JURISDICTION OF NEW JERSEY TO TAXATION
ANNUALLY AT ITS TRUE VALUE.  BY SEC. 301 THE TAX ON OTHER THAN TANGIBLE
PERSONAL PROPERTY IS ASSESSED ON EACH INHABITANT IN THE TAXING DISTRICT
OF HIS RESIDENCE ON THE FIRST DAY OF OCTOBER IN EACH YEAR.  SECTION 305
DEALS WITH DOMESTIC CORPORATIONS AS RESIDENTS OF THE DISTRICT IN WHICH
THEIR CHIEF OFFICE IS LOCATED AND RENDERS THEIR PERSONAL PROPERTY
TAXABLE IN THE SAME MANNER AS THAT OF INDIVIDUALS, EXCEPT AS OTHERWISE
PROVIDED.  SECTION 307, THE MOST VITAL IN THE CASE, PROVIDES: 

"EVERY FIRE INSURANCE COMPANY AND EVERY STOCK INSURANCE COMPANY OTHER
THAN LIFE INSURANCE SHALL BE ASSESSED IN THE TAXING DISTRICT WHERE ITS
OFFICE IS SITUATE, UPON THE FULL AMOUNT OF ITS CAPITAL STOCK PAID IN
AND ACCUMULATED SURPLUS; ...  NO FRANCHISE TAX SHALL BE IMPOSED UPON
ANY SUCH FIRE INSURANCE COMPANY OR OTHER STOCK INSURANCE COMPANY
INCLUDED IN THIS SECTION." 

THE APPELLANT IS A STOCK FIRE INSURANCE CORPORATION ORGANIZED UNDER
THE LAWS OF NEW JERSEY WHICH AT THE TIME OF THIS ASSESSMENT REQUIRED IT
TO LOCATE ITS PRINCIPAL OFFICE AND TO CONDUCT ITS GENERAL BUSINESS IN
THE STATE.  FN3  IT IS STIPULATED THAT A REGISTERED OFFICE IS
MAINTAINED IN NEWARK, NEW JERSEY, TOGETHER WITH SUCH BOOKS AS THE LAW
REQUIRES TO BE KEPT WITHIN THE STATE.  THE ONLY BUSINESS CARRIED ON IN
THIS NEWARK OFFICE IS A LOCAL OR REGIONAL CLAIM AND UNDERWRITING
DEPARTMENT FOR ESSEX AND THREE OTHER COUNTIES.  NO EXECUTIVE OFFICER IS
THERE AND REPORTS ARE SENT TO THE NEW YORK OFFICE.  THE STIPULATION
FURTHER SHOWS THAT THE COMPANY'S "EXECUTIVE OFFICERS AND ITS EXECUTIVE
OFFICE ARE LOCATED AT 150 WILLIAM STREET, NEW YORK CITY.  THE GENERAL
ACCOUNTS OF THE COMPANY ARE KEPT IN THE OFFICE IN NEW YORK CITY.  THE
GENERAL ACCOUNTING, UNDERWRITING AND EXECUTIVE OFFICES OF THE COMPANY
ARE ALL LOCATED AT THE MAIN OFFICE AT 150 WILLIAM STREET, NEW YORK
CITY.  ALL CASH AND SECURITIES OF THE COMPANY ARE LOCATED THERE OR IN
BANKS IN THAT CITY OR IN OTHER BANKS OUTSIDE OF THE STATE OF NEW
JERSEY, WITH THE EXCEPTION OF THE SUM OF $6,425.32 ON DEPOSIT IN NEW
JERSEY BANKS.  ALL OF THE GENERAL AFFAIRS OF THE COMPANY ARE CONDUCTED
AT THE MAIN OFFICE IN NEW YORK CITY AND HAVE BEEN SO CONDUCTED THERE
SINCE APPELLANT MOVED ITS MAIN OFFICE FROM NEWARK SIX YEARS AGO."  NO
PERSONAL PROPERTY TAX IS PAID IN NEW YORK.  THE COMPANY DOES PAY THERE
A FRANCHISE TAX BASED UPON PREMIUMS. 

THE BOARD OF ASSESSMENT OF THE CITY OF NEWARK MADE AN ASSESSMENT, AS
OF OCTOBER 1, 1934, UPON THE CAPITAL STOCK PAID IN AND ACCUMULATED
SURPLUS OF THE APPELLANT, WITH DEDUCTIONS FOR DEBTS AND EXEMPTIONS
ALLOWED BY LAW.  THE ASSESSMENT WAS SUSTAINED, IN SUCCESSION, BY THE
ESSEX COUNTY BOARD OF TAXATION, BY THE NEW JERSEY STATE BOARD OF TAX
APPEALS, NOW AN APPELLEE, BY THE SUPREME COURT, FN4  AND BY THE COURT
OF ERRORS AND APPEALS, THE HIGHEST COURT IN THE STATE.  FN5  THROUGHOUT
THE PROCEEDINGS BELOW THE APPELLANT RESISTED THE JURISDICTION OF NEW
JERSEY TO TAX ON THE GROUND THAT ITS INTANGIBLES HAD ACQUIRED A
BUSINESS SITUS AND THE CORPORATION A TAX DOMICILE IN NEW YORK. 
THROUGHOUT, THE STATE TRIBUNALS TREATED THE ASSESSMENT AS UPON PERSONAL
PROPERTY WITH A BUSINESS SITUS IN THE SISTER STATE.  THE SUPREME COURT
CHARACTERIZED THE EXACTION AS A PERSONAL PROPERTY TAX AND DISCUSSED ITS
VALIDITY "IN THE LIGHT OF THE PROOFS  ...  UPON THE INESCAPABLE PREMISE
THAT ...  THE SECURITIES, THE PERSONALTY INVOLVED, HAVE BECOME AN
INTEGRAL PART OF (APPELLANT'S) BUSINESS SITUS IN NEW YORK  ..."  FN6
IT HELD THAT THE STATE OF DOMICILE MAY IMPOSE A PERSONAL PROPERTY TAX
UPON INTANGIBLES WHICH HAVE ACQUIRED A BUSINESS SITUS IN ANOTHER STATE
AND ADDED THAT, IN THE ABSENCE OF A NEW YORK PERSONAL PROPERTY TAX,
MULTIPLE TAXATION WAS IMPOSSIBLE.  THE COURT OF ERRORS AND APPEALS OF
NEW JERSEY, PER CURIAM, AFFIRMED THE JUDGMENT FOR THE REASONS EXPRESSED
IN THE OPINION OF THE SUPREME COURT.  FN7 

APPELLANT URGES ERROR IN SUSTAINING THE ASSESSMENT IN THE FACE OF THE
CONCLUSION THAT THE TAX IS A PROPERTY TAX UPON INTANGIBLES WITH A
BUSINESS SITUS IN NEW YORK, THE COMMERCIAL DOMICILE OF THE
CORPORATION.  SUCH APPROVAL, IT IS CLAIMED, VIOLATES THE DUE PROCESS
CLAUSE OF THE 14TH AMENDMENT. 

THE PRESENT TAX, AS ADMINISTERED, IS LEVIED UPON AN ASSESSMENT OF THE
FULL AMOUNT OF CAPITAL STOCK AND SURPLUS.  IT IS A TAX ON THE NET VALUE
OF THE CORPORATION LESS ALLOWABLE DEDUCTIONS, REACHED BY TAKING
LIABILITIES FROM GROSS VALUE OF ASSETS AND SUBTRACTING EXEMPT ITEMS
FROM THE REMAINDER.  THIS IS APPARENTLY BECAUSE CAPITAL STOCK AND
SURPLUS ARE TREATED AS INVESTED IN THE EXEMPT ASSETS.  FN8  THE VALUE
THUS ASSESSED IS NOT DETERMINED BY SPECIFIC ITEMS BUT IS THE RESULT OF
A CALCULATION IN WHICH ALL ASSETS ARE INVOLVED EXCEPT THOSE DEFINITELY
EXEMPTED.  OUR CONCLUSION MAKES IT UNNECESSARY TO RESOLVE DOUBTS AS TO
WHETHER THIS IS A PROPERTY TAX. 

WHEN A STATE EXERCISES ITS SOVEREIGN POWER TO CREATE A PRIVATE
CORPORATION, THAT CORPORATION BECOMES A CITIZEN, AND DOMICILED IN THE
JURISDICTION, OF ITS CREATOR.  FN9  THERE IT MUST DWELL.  FN10  THE
DOMINION OF THE STATE OVER ITS CREATURE IS COMPLETE.  FN11  IN
ACCORDANCE WITH THE ORDINARY RECOGNITION OF THE RULE OF MOBILIA
SEQUUNTUR PERSONAM TO DETERMINE THE TAXABLE SITUS OF INTANGIBLE
PERSONALTY,  FN12  THE PRESUMPTION IS THAT SUCH PROPERTY IS TAXABLE BY
THE STATE OF THE CORPORATION'S ORIGIN.  FN13  THIS POWER OF NEW JERSEY
TO TAX IS MADE EFFECTIVE BY SEC. 307 OF THE ACT OF 1918, HERETOFORE
QUOTED.  IT IS THE ONLY TAX SOUGHT BY THE STATE FROM CORPORATIONS OF
THIS TYPE, AS THE FRANCHISE TAX, AT ONE TIME LEVIED,  FN14  WAS
REPEALED BY THE ACT OF APRIL 8, 1903.  FN15 

THERE ARE OCCASIONS, HOWEVER, WHEN THE USE OF INTANGIBLE PERSONALTY
IN OTHER STATES BECOMES SO INEXTRICABLY A PART OF THE BUSINESS THERE
CONDUCTED THAT IT BECOMES SUBJECT TO TAXATION BY THAT STATE.  FN16  THE
CARRYING ON OF THE BUSINESS OF THE CORPORATION IN NEW YORK, IT IS
URGED, HAS WITHDRAWN ITS INTANGIBLES COMPLETELY FROM THE TAX
JURISDICTION OF NEW JERSEY.  WITH THE ASSUMPTION OF A BUSINESS SITUS
AND COMMERCIAL DOMICILE IN NEW YORK, THAT STATE, UNDER THE AUTHORITIES
CITED, WOULD HAVE THE RIGHT TO TAX INTANGIBLES WITH THIS RELATION TO
ITS SOVEREIGNTY.  APPELLANT CONTENDS THAT IF NEW YORK MAY LEVY A
PROPERTY TAX ON THESE INTANGIBLES, IT WILL VIOLATE THE DUE PROCESS
CLAUSE OF THE 14TH AMENDMENT TO PERMIT NEW JERSEY TO DO THE SAME THING;
THAT PROPERTY CANNOT BE IN TWO PLACES; THAT IF IT IS IN NEW YORK FOR
TAX PURPOSES, IT CANNOT BE IN NEW JERSEY.  WE ARE ASKED TO DECIDE THAT
BOTH STATES HAVE NOT THE POWER TO TAX THE SAME PROPERTY FOR THE SAME
INCIDENTS.  THIS QUESTION HAS BEEN HERETOFORE RESERVED.  FN17 WE DO NOT
FIND IT NECESSARY TO ANSWER IT IN THIS CASE. 

WHERE CONSIDERATION HAS BEEN GIVEN TO THE EXISTENCE OF A BUSINESS
SITUS OF INTANGIBLES FOR TAXATION BY A STATE OTHER THAN THE STATE OF
DOMICILE, THERE HAS BEEN DEFINITE EVIDENCE THAT THE INTANGIBLES WERE
INTEGRAL PARTS OF THE BUSINESS CONDUCTED.  IN SO FAR AS THE CONCLUSION
AS TO THE EXISTENCE OF A BUSINESS SITUS FOR THE PURPOSE OF TAXATION,
DISTINCT FROM THE DOMICILIARY SITUS, IS THE BASIS FOR A CLAIM OF A
FEDERAL RIGHT, THE DUTY OF INQUIRING INTO THE EVIDENCE WHICH
ESTABLISHES SUCH BUSINESS SITUS RESTS UPON THIS COURT.  FN18 

IN THE STEMPEL, BRISTOL, COMPTOIR NATIONAL, METROPOLITAN AND
LIVERPOOL CASES, CITED IN NOTE 16, SUPRA, THE INTEGRATION OF THE
FOREIGN-OWNED INTANGIBLES WITH LOCAL ACTIVITIES WAS EVIDENT FROM THE
CONTINUED COURSE OF BUSINESS.  THE PRESENCE OR ABSENCE OF THE EVIDENCES
OF THE CREDITS FROM THE JURISDICTION WAS IMMATERIAL.  FN19  THE NON
RESIDENT INDIVIDUALS AND CORPORATIONS CARRIED ON CONTINUOUSLY A COURSE
OF LENDING MONEY OR GRANTING CREDITS WITHIN THE TAXING STATES.  THE
TAXED INTANGIBLES GREW OUT OF THESE TRANSACTIONS.  THEY WERE, IN FACT,
A PART OF THEM.  IN THE WHEELING STEEL CASE, THE SAME TYPE OF
AMALGAMATION OCCURRED.  WEST VIRGINIA SOUGHT TO TAX A DELAWARE
CORPORATION ON ACCOUNTS RECEIVABLE AND BANK DEPOSITS.  THE OPINION
POINTS OUT, PAGES 212 AND 213, THAT THESE CHOSES IN ACTION WERE THE
INDEBTEDNESS FOR OR THE PROCEEDS OF SALES CONFIRMED IN WEST VIRGINIA,
ATTRIBUTABLE "TO THE PLACE WHERE THEY ARISE IN THE COURSE OF THE
BUSINESS OF MAKING CONTRACTS OF SALE."  IN FIRST BANK STOCK CORP. V.
MINNESOTA ANOTHER DELAWARE CORPORATION WAS FOUND TO HAVE ESTABLISHED A
COMMERCIAL DOMICILE FOR ITSELF AND GIVEN A BUSINESS SITUS TO CERTAIN OF
ITS INTANGIBLES.  THE INTANGIBLES IN QUESTION WERE STOCKS OF MONTANA
AND NORTH DAKOTA STATE BANKS, PURCHASED AND HELD AS PART OF THE
CORPORATION'S ASSETS IN ITS MINNESOTA BUSINESS OF HOLDING THE SHARES
AND MANAGING, THROUGH STOCK OWNERSHIP, THE BUSINESS OF NUMEROUS BANKS,
TRUST COMPANIES AND OTHER FINANCIAL INSTITUTIONS OF THE NINTH FEDERAL
RESERVE DISTRICT.  AS THIS BUSINESS WAS LOCALIZED IN MINNESOTA, THE
STOCKS OF THESE BANKS WERE AN ESSENTIAL FACTOR OF THAT BUSINESS AND
THEREFORE HAD A TAXABLE SITUS IN MINNESOTA. 

THE CONCEPTION OF A BUSINESS SITUS FOR INTANGIBLES ENABLES THE TAX
GATHERING ENTITY TO DISTRIBUTE THE BURDEN OF ITS SUPPORT EQUITABLY
AMONG THOSE RECEIVING ITS PROTECTION.  IT MAKES THE NOTION OF A TAX
SITUS FOR PARTICULAR INTANGIBLES MORE DEFINITE.  IT IS NOT THE
SUBSTITUTION OF A NEW FICTION AS TO THE MASS OF CHOSES IN ACTION FOR
THE ESTABLISHED FICTION OF A TAX SITUS AT THE PLACE OF INCORPORATION. 
TO OVERCOME THE PRESUMPTION OF DOMICILIARY LOCATION, THE PROOF OF
BUSINESS SITUS MUST DEFINITELY CONNECT THE INTANGIBLES AS AN INTEGRAL
PART OF THE LOCAL ACTIVITY.  THE FACTS PRESENTED BY THIS RECORD FALL
FAR SHORT OF THIS REQUIREMENT. 

THE TAX IS UPON "THE FULL AMOUNT OF CAPITAL STOCK AND SURPLUS" LESS
CERTAIN ALLOWED DEDUCTIONS OF REAL ESTATE AND EXEMPT SECURITIES.  THE
EVIDENCE GIVES NO EXPLANATION OF THE AMOUNT OR SOURCE OF THE ASSETS
MAKING UP THE AMOUNT $3,370,080.66 WHICH BALANCES WITH THE CAPITAL
STOCK AND SURPLUS LESS THESE DEDUCTIONS.  THE STIPULATION SHOWS
"AGREED" FIGURES, $8,107,901.83 PRESUMABLY OF CAPITAL AND SURPLUS, AS
SHOWN BELOW.  FN20  AGREED DEDUCTIONS ARE $4,737,821.17.  BUT THE
ASSESSMENT IS $1,069,000.  FROM THE STIPULATION, WE LEARN THE "GENERAL
ACCOUNTS" ARE KEPT IN NEW YORK CITY AND ALL CASH EXCEPT $6,425.32 AND
ALL SECURITIES ARE LOCATED AT THE NEW YORK OFFICE OR IN BANKS OUTSIDE
OF NEW JERSEY.  IF WE ASSUME THAT THE "GENERAL ACCOUNTS" MENTIONED ARE
THE COMPANY'S CLAIMS AGAINST AGENTS, OTHER INSURANCE COMPANIES, AND
SIMILAR BILLS RECEIVABLE, NO PROGRESS IS MADE TOWARDS THEIR
IDENTIFICATION WITH NEW YORK BUSINESS.  NOTHING IS SHOWN AS TO THE
VOLUME OF NEW YORK BUSINESS IN COMPARISON WITH NEW JERSEY OR THE OTHER
STATES.  WE ARE NOT TOLD WHERE BUSINESS IS ACCEPTED, MONEYS COLLECTED
OR INSURANCE CONTRACTS MADE.  THE SECURITIES MAY REPRESENT LOCAL LOANS
OR INVESTMENTS IN NEW JERSEY OR ELSEWHERE MADE FROM FUNDS DERIVED FROM
SIMILAR INSURANCE CONTRACTS WITH A BUSINESS SITUS AT THOSE POINTS. 
FN21  THEY MAY BE THE RESULT OF INSURANCE ACTIVITIES OF MANY KINDS,
TAKING PLACE FAR FROM NEW YORK.  IF WE WERE TO ASSUME THAT THE
INTANGIBLES OF A CORPORATION MAY HAVE ONLY ONE TAXABLE SITUS, THE MERE
FACT THAT GENERAL AFFAIRS OF A FOREIGN CORPORATION ARE CONDUCTED BY
GENERAL OFFICERS IN NEW YORK WITHOUT FURTHER EVIDENCE OF THE SOURCE AND
CHARACTER OF THE INTANGIBLES DOES NOT DESTROY THE TAXABILITY OF A PART
OF THESE INTANGIBLES BY THE STATE OF THE CORPORATION'S LEGAL DOMICILE. 
THE PRESUMPTION OF A TAXABLE SITUS SOLELY IN NEW JERSEY IS NOT
OVERTURNED. 

UNIVERSAL INSURANCE COMPANY AND UNIVERSAL INDEMNITY INSURANCE COMPANY
HAVE APPEALS INVOLVING THE SAME QUESTIONS.  BY STIPULATION THESE CASES
WERE CONSOLIDATED FOR REVIEW BELOW AND APPEAL HERE. 

THESE APPELLANTS ARE NEW JERSEY INSURANCE CORPORATIONS, ASSESSED BY
THE CITY OF NEWARK IN THE SAME WAY, UNDER THE SAME STATUTE AND WITH THE
SAME RESULT IN THE STATE COURTS AS THE APPELLANT IN NO. 449. 

THERE ARE NO SIGNIFICANT DISTINCTIONS BETWEEN THE CASES.  A
MANAGEMENT CORPORATION HANDLES THESE COMPANIES AT A NEW YORK OFFICE,
WHERE ACCOUNTS ARE PAYABLE.  SEVEN PER CENT OF THE BUSINESS OF
UNIVERSAL INSURANCE COMPANY ORIGINATES IN NEW JERSEY.  THE
CORRESPONDING PERCENTAGE FOR THE OTHER COMPANY IS NOT SHOWN.  AS IN NO.
449, THE RECORD IS SILENT AS TO THE CHARACTER, SOURCE AND USE OF THE
SECURITIES AND CREDITS.    FN1  28 U.S.C. SEC. 344(A). 

FN2  N.J. LAWS 1918, P. 847; ALSO IN N.J. REV. STATS. 1937, SEC. 54:
4. 

FN3  N.J. LAWS 1902, C. 134, SEC. 3, SECOND, 408; N.J. LAWS 1929, C.
6, SEC. 3, SECOND, P. 18, AND C. 47, SEC. 1, P. 82.  BY C. 164 OF N.J.
LAWS 1937, THIS WAS AMENDED TO READ THAT THE CERTIFICATE OF
INCORPORATION MUST SET FORTH "THE PLACE WHERE THE PRINCIPAL OFFICE OF
THE SAID COMPANY IN THIS STATE IS TO BE LOCATED." 

FN4  118 N.J.L. 525; 193 A. 912. 

FN5  120 N.J.L. 185; 198 A. 836. 

FN6  118 N.J.L. AT 526; 193 A. 912. 

FN7  120 N.J.L. 185; 198 A. 836. 

FN8  FIDELITY TRUST CO. V. BOARD OF EQUALIZATION, 77 N.J.L. 128, 130;
71 A. 61. 

FN9  LAFAYETTE INSURANCE CO. V. FRENCH, 18 HOW.  404; ST. LOUIS V.
WIGGINS FERRY CO., 11 WALL.  423, 429; SEABOARD RICE MILLING CO. V.
CHICAGO, R.I. & P.R. CO., 270 U.S. 363, 366; FAIRBANKS STEAM SHOVEL CO.
V. WILLS, 240 U.S. 642.  CF. INTERNATIONAL MILLING CO. V. COLUMBIAN
TRANSP.  CO., 292 U.S. 511, 519. 

FN10  BANK OF AUGUSTA V. EARLE, 13 PET. 519, 588. 

FN11  OKLAHOMA GAS CO. V. OKLAHOMA, 273 U.S. 257, 259; CANADA
SOUTHERN RY. V. GEBHARD, 109 U.S. 527, 537-38. 

FN12  SAFE DEPOSIT & TRUST CO. V. VIRGINIA, 280 U.S. 83, 92; BLODGETT
V. SILBERMAN, 277 U.S. 1, 9. 

FN13  CREAM OF WHEAT CO. V. GRAND FORKS, 253 U.S. 325, 329; VIRGINIA
V. IMPERIAL COAL SALES CO., 293 U.S. 15, 19; FIRST BANK STOCK CORP. V.
MINNESOTA, 301 U.S. 234, 237.  CF. JOHNSON OIL CO. V. OKLAHOMA, 290
U.S. 158, 161. 

FN14  ACT OF APRIL 18, 1884, N.J. LAWS 1884, C. 159, P. 232. 

FN15  N.J. LAWS 1903, C. 208, P. 394. 

FN16  NEW ORLEANS V. STEMPEL, 175 U.S. 309; BRISTOL V. WASHINGTON
COUNTY, 177 U.S. 133; STATE BOARD V. COMPTOIR NATIONAL D'ESCOMPTE, 191
U.S. 388; METROPOLITAN LIFE INS. CO. V. NEW ORLEANS, 205 U.S. 395;
LIVERPOOL & L. & G. CO. V. BOARD OF ASSESSORS, 221 U.S. 346; WHEELING
STEEL CORP. V. FOX, 298 U.S. 193; FIRST BANK STOCK CORP. V. MINNESOTA,
301 U.S. 234. 

FN17  FIRST BANK STOCK CORP. V. MINNESOTA, 301 U.S. 234, 237, 241. 
CF. FARMERS LOAN & TRUST CO. V. MINNESOTA, 280 U.S. 204, 213; FIRST
NATIONAL BANK V. MAINE, 284 U.S. 312, 331. 

FN18  BEIDLER V. SOUTH CAROLINA TAX COMM'N, 282 U.S. 1, 8, AND CASES
CITED. 

FN19  METROPOLITAN LIFE INS. CO. V. NEW ORLEANS, 205 U.S. 395, 402. 

FN20  "(A)  THE FOLLOWING FIGURES HAVE BEEN AGREED UPON.  IN THE
FIRST COLUMN APPEARS THE DESIGNATION OF WHAT THE FUND REPRESENTS;
OPPOSITE EACH DESIGNATION APPEARING THE AMOUNT OF THE FUND IN
QUESTION: 

1.  CAPITAL STOCK.................................  $2,000,000.00 

2.  SURPLUS (AS SET FORTH IN THE BOOKS OF THE
COMPANY)...$R2,982,940.29 

3.  RESERVE FOR UNEARNED PREMIUMS.................   3,001,623.46 

4.  RESERVE FOR TAXES.............................      71,765.65 

5.  RESERVE FOR CONTINGENCIES.....................      68,915.35 

6.  RESERVE FOR REINSURANCE.......................       4,228.36 

7.  AGENCY BALANCES OVER 90 DAYS OLD..............     119,109.72 

8.  FURNITURE AND FIXTURES (IN NEWARK OFFICE).....       1,500.00 

TOTAL.............................................  $8,250,082.83" 

RESERVES FOR UNEARNED PREMIUMS AND FOR REINSURANCE ARE A TAXABLE
ASSET IN NEW JERSEY.  CITY OF TRENTON V. STANDARD FIRE INS. CO., 77
N.J.L. 757, 764-765; 73 A. 606.  THE BOARD OF TAX APPEALS HELD THE
AGENCY BALANCES AN ASSET, AND THE RESERVE FOR TAXES A LIABILITY WHICH
IS DEDUCTIBLE.  NOTHING WAS SAID ABOUT THE RESERVE FOR CONTINGENCIES. 
ADDITION OF THE ITEMS KNOWN TO CONSTITUTE ASSETS - CAPITAL STOCK,
SURPLUS, RESERVE FOR UNEARNED PREMIUMS, RESERVE FOR REINSURANCE, AGENCY
BALANCES - EQUALS $8,107,901.83. 

FN21  METROPOLITAN LIFE INS. CO. V. NEW ORLEANS, 205 U.S. 395. 

MR. JUSTICE FRANKFURTER ANNOUNCED THE FOLLOWING OPINION, CONCURRED IN
BY MR. JUSTICE STONE, MR. JUSTICE BLACK, AND MR. JUSTICE DOUGLAS. 

WISE TAX POLICY IS ONE THING; CONSTITUTIONAL PROHIBITION QUITE
ANOTHER.  THE TASK OF DEVISING MEANS FOR DISTRIBUTING THE BURDENS OF
TAXATION EQUITABLY HAS ALWAYS CHALLENGED THE WISDOM OF THE WISEST
FINANCIAL STATESMEN.  NEVER HAS THIS BEEN MORE TRUE THAN TODAY WHEN
WEALTH HAS SO LARGELY BECOME THE CAPITALIZATION OF EXPECTANCIES DERIVED
FROM A COMPLICATED NETWORK OF HUMAN RELATIONS.  THE ADJUSTMENT OF SUCH
RELATIONSHIPS, WITH DUE REGARD TO THE PROMOTION OF ENTERPRISE AND TO
THE FISCAL NEEDS OF DIFFERENT GOVERNMENTS WITH WHICH THESE RELATIONS
ARE ENTWINED, IS PECULIARLY A PHASE OF EMPIRICAL LEGISLATION.  IT
BELONGS TO THAT RANGE OF THE EXPERIMENTAL ACTIVITIES OF GOVERNMENT  FN1
WHICH SHOULD NOT BE CONSTRAINED BY RIGID AND ARTIFICIAL LEGAL
CONCEPTS.  ESPECIALLY IMPORTANT IS IT TO ABSTAIN FROM INTERVENTION
WITHIN THE AUTONOMOUS AREA OF THE LEGISLATIVE TAXING POWER WHERE THERE
IS NO CLAIM OF ENCROACHMENT BY THE STATES UPON POWERS GRANTED TO THE
NATIONAL GOVERNMENT.  IT IS NOT FOR US TO SIT IN JUDGMENT ON ATTEMPTS
BY THE STATES TO EVOLVE FAIR TAX POLICIES.  WHEN A TAX APPROPRIATELY
CHALLENGED BEFORE US IS NOT FOUND TO BE IN PLAIN VIOLATION OF THE
CONSTITUTION OUR TASK IS ENDED. 

CHAPTER 236 OF THE NEW JERSEY LAWS OF 1918, AS APPLIED TO THE
CIRCUMSTANCES OF THESE TWO CASES, CLEARLY DOES NOT OFFEND THE
CONSTITUTION.  IN SUBSTANCE, SUCH LEGISLATION HAS HERETOFORE BEEN FOUND
FREE FROM CONSTITUTIONAL INFIRMITY.  CREAM OF WHEAT CO. V. GRAND FORKS,
253 U.S. 325, AFFIRMING 41 N. DAK.  330; 170 N.W. 863.  DURING ALL THE
VICISSITUDES WHICH THE SO-CALLED "JURISDICTION-TO-TAX" DOCTRINE HAS
ENCOUNTERED SINCE THAT CASE WAS DECIDED, THE EXTENT OF A STATE'S TAXING
POWER OVER A CORPORATION OF ITS OWN CREATION, RECOGNIZED IN THE CREAM
OF WHEAT CASE, HAS NEITHER BEEN RESTRICTED NOR IMPAIRED.  THAT CASE HAS
NOT BEEN CITED OTHERWISE THAN WITH APPROVAL.  FN2  QUESTIONS AFFECTING
THE FICTIONAL "SITUS" OF INTANGIBLES, WHICH RECEIVED FULL CONSIDERATION
IN CURRY V. MCCANLESS, POST, P. 357, DO NOT CONCERN THE PRESENT
CONTROVERSIES.  CREAM OF WHEAT CO. V. GRAND FORKS, SUPRA, AND THE CASES
THAT HAVE FOLLOWED IT, AFFORD A WHOLLY ADEQUATE BASIS FOR AFFIRMING THE
JUDGMENTS BELOW. 

FN1  COMPARE ANDERSON V. DUNN, 6 WHEAT.  204, 226:  "THE SCIENCE OF
GOVERNMENT IS THE MOST ABSTRUSE OF ALL SCIENCES; IF, INDEED, THAT CAN
BE CALLED A SCIENCE WHICH HAS BUT FEW FIXED PRINCIPLES, AND PRACTICALLY
CONSISTS IN LITTLE MORE THAN THE EXERCISE OF A SOUND DISCRETION,
APPLIED TO THE EXIGENCIES OF THE STATE AS THEY ARISE.  IT IS THE
SCIENCE OF EXPERIMENT." 

FN2  SEE CITIZENS NATIONAL BANK V. DURR, 257 U.S. 99, 109; SCHWAB V.
RICHARDSON, 263 U.S. 88, 92; BAKER V. DRUESEDOW, 263 U.S. 137, 141;
SWISS OIL CORP. V. SHANKS, 273 U.S. 407, 413; HELLMICH V. HELLMAN, 276
U.S. 233, 238; MONTGOMERY WARD & CO. V. EMMERSON, 277 U.S. 573;
EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, 391; NEBRASKA EX REL.
BEATRICE CREAMERY CO. V. MARSH, 282 U.S. 799, 800; FIRST BANK STOCK
CORP. V. MINNESOTA, 301 U.S. 234, 237. 
..END :

















PERKINS V. ELG., 307 U.S. 325 


NO. 454.  ARGUED FEBRUARY 3, 1939.  - DECIDED MAY 29, 1939.  - 69 APP.
D.C. 175 - 99 F.2D 408, MODIFIED AND AFFIRMED. 


1.  A CHILD BORN HERE OF ALIEN PARENTAGE BECOMES A CITIZEN OF THE
UNITED STATES.  P. 328. 

2.  AS MUNICIPAL LAW DETERMINES HOW CITIZENSHIP MAY BE ACQUIRED, THE
SAME PERSON MAY POSSESS A DUAL NATIONALITY.  P. 329. 

3.  A CITIZEN BY BIRTH RETAINS HIS UNITED STATES CITIZENSHIP UNLESS
DEPRIVED OF IT THROUGH THE OPERATION OF A TREATY OR CONGRESSIONAL
ENACTMENT OR BY HIS VOLUNTARY ACTION IN CONFORMITY WITH APPLICABLE
LEGAL PRINCIPLES.  P. 329. 

4.  IT HAS LONG BEEN A RECOGNIZED PRINCIPLE IN THIS COUNTRY THAT IF A
CHILD BORN HERE IS TAKEN DURING MINORITY TO THE COUNTRY OF HIS PARENTS'
ORIGIN, WHERE HIS PARENTS RESUME THEIR FORMER ALLEGIANCE, HE DOES NOT
THEREBY LOSE HIS CITIZENSHIP IN THE UNITED STATES PROVIDED THAT ON
ATTAINING MAJORITY HE ELECTS TO RETAIN THAT CITIZENSHIP AND TO RETURN
TO THE UNITED STATES TO ASSUME ITS DUTIES.  P. 329. 

EXPATRIATION IS THE VOLUNTARY RENUNCIATION OR ABANDONMENT OF
NATIONALITY AND ALLEGIANCE.  P. 334. 

5.  THIS RIGHT OF ELECTION IS CONSISTENT WITH THE NATURALIZATION
TREATY WITH SWEDEN OF 1869 AND ITS ACCOMPANYING PROTOCOL.  P. 335. 

6.  THE ACT OF MARCH 2, 1907, IN PROVIDING "THAT ANY AMERICAN CITIZEN
SHALL BE DEEMED TO HAVE EXPATRIATED HIMSELF WHEN HE HAS BEEN
NATURALIZED IN ANY FOREIGN STATE IN CONFORMITY WITH ITS LAWS, ...  "
WAS AIMED AT VOLUNTARY EXPATRIATION AND WAS NOT INTENDED TO DESTROY THE
RIGHT OF A NATIVE CITIZEN, REMOVED FROM THIS COUNTRY DURING MINORITY,
TO ELECT TO RETAIN THE CITIZENSHIP ACQUIRED BY BIRTH AND TO RETURN HERE
FOR THAT PURPOSE, EVEN THOUGH HE MAY BE DEEMED TO HAVE BEEN NATURALIZED
UNDER THE FOREIGN LAW BY DERIVATION FROM THE CITIZENSHIP OF HIS PARENTS
BEFORE HE CAME OF AGE.  P. 342. 

THIS IS TRUE NOT ONLY WHERE THE PARENTS WERE FOREIGN NATIONALS AT THE
TIME OF THE BIRTH OF THE CHILD AND REMAINED SUCH, BUT ALSO WHERE THEY
BECAME FOREIGN NATIONALS AFTER THE BIRTH AND REMOVAL OF THE CHILD. 

7.  RECENT PRIVATE ACTS OF CONGRESS FOR THE RELIEF OF NATIVE CITIZENS
WHO HAVE BEEN THE SUBJECT OF ADMINISTRATIVE ACTION DENYING THEIR RIGHTS
OF CITIZENSHIP, CAN NOT BE REGARDED AS THE EQUIVALENT OF AN ACT OF
CONGRESS PROVIDING THAT PERSONS IN THE SITUATION OF THE RESPONDENT HERE
HAVE LOST THE AMERICAN CITIZENSHIP WHICH THEY ACQUIRED AT BIRTH AND
HAVE SINCE DULY ELECTED TO RETAIN.  P. 349. 

8.  THREATS OF DEPORTATION BY THE SECRETARY OF LABOR AND IMMIGRATION
OFFICIALS, AND REFUSAL BY THE SECRETARY OF STATE TO ISSUE A PASSPORT,
UPON THE DISPUTED GROUND THAT THE PERSON AFFECTED HAS LOST HIS NATIVE
CITIZENSHIP AND BECOME AN ALIEN WRONGFULLY IN THE COUNTRY, INVOLVE AN
ACTUAL CONTROVERSY AFFORDING BASIS FOR A SUIT FOR A DECLARATORY
JUDGMENT THAT HE IS A CITIZEN AND FOR AN INJUNCTION.  P. 349. 

9.  IN SUCH A SUIT, THE SECRETARY OF STATE IS PROPERLY INCLUDED IN
THE DECLARATORY PROVISION OF THE DECREE, THAT HE MAY BE PRECLUDED FROM
REFUSING TO ISSUE THE PASSPORT SOLELY UPON THE GROUND THAT THE
CITIZENSHIP HAS BEEN LOST.  ID. 

PERKINS, SECRETARY OF LABOR, ET AL. V. ELG.* 

*TOGETHER WITH NO. 455, ELG V. PERKINS, SECRETARY OF LABOR, ET AL.,
ALSO ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 305 U.S. 591, TO REVIEW THE AFFIRMANCE OF A DECREE
SUSTAINING, AS TO THE SECRETARY OF STATE, AND OVERRULING, AS TO THE
SECRETARY OF LABOR AND THE ACTING COMMISSIONER OF IMMIGRATION AND
NATURALIZATION, A BILL BROUGHT BY MARIE ELIZABETH ELG FOR A DECLARATORY
DECREE ESTABLISHING HER STATUS AS AN AMERICAN CITIZEN, AND FOR
INJUNCTIVE RELIEF AGAINST THE RESPONDENTS.  THERE WERE CROSS APPEALS TO
THE COURT BELOW. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE PLAINTIFF, MARIE ELIZABETH ELG, WHO WAS
BORN IN THE UNITED STATES OF SWEDISH PARENTS THEN NATURALIZED HERE, HAS
LOST HER CITIZENSHIP AND IS SUBJECT TO DEPORTATION BECAUSE OF HER
REMOVAL DURING MINORITY TO SWEDEN, IT APPEARING THAT HER PARENTS
RESUMED THEIR CITIZENSHIP IN THAT COUNTRY BUT THAT SHE RETURNED HERE ON
ATTAINING MAJORITY WITH INTENTION TO REMAIN AND TO MAINTAIN HER
CITIZENSHIP IN THE UNITED STATES. 

MISS ELG WAS BORN IN BROOKLYN, NEW YORK, ON OCTOBER 2, 1907.  HER
PARENTS, WHO WERE NATIVES OF SWEDEN, EMIGRATED TO THE UNITED STATES
SOMETIME PRIOR TO 1906 AND HER FATHER WAS NATURALIZED HERE IN THAT
YEAR.  IN 1911, HER MOTHER TOOK HER TO SWEDEN WHERE SHE CONTINUED TO
RESIDE UNTIL SEPTEMBER 7, 1929.  HER FATHER WENT TO SWEDEN IN 1922 AND
HAS NOT SINCE RETURNED TO THE UNITED STATES.  IN NOVEMBER, 1934, HE
MADE A STATEMENT BEFORE AN AMERICAN CONSUL IN SWEDEN THAT HE HAD
VOLUNTARILY EXPATRIATED HIMSELF FOR THE REASON THAT HE DID NOT DESIRE
TO RETAIN THE STATUS OF AN AMERICAN CITIZEN AND WISHED TO PRESERVE HIS
ALLEGIANCE TO SWEDEN. 

IN 1928, SHORTLY BEFORE MISS ELG BECAME TWENTY-ONE YEARS OF AGE, SHE
INQUIRED OF AN AMERICAN CONSUL IN SWEDEN ABOUT RETURNING TO THE UNITED
STATES AND WAS INFORMED THAT IF SHE RETURNED AFTER ATTAINING MAJORITY
SHE SHOULD SEEK AN AMERICAN PASSPORT.  IN 1929, WITHIN EIGHT MONTHS
AFTER ATTAINING MAJORITY, SHE OBTAINED AN AMERICAN PASSPORT WHICH WAS
ISSUED ON THE INSTRUCTIONS OF THE SECRETARY OF STATE.  SHE THEN
RETURNED TO THE UNITED STATES, WAS ADMITTED AS A CITIZEN AND HAS
RESIDED IN THIS COUNTRY EVER SINCE. 

IN APRIL, 1935, MISS ELG WAS NOTIFIED BY THE DEPARTMENT OF LABOR THAT
SHE WAS AN ALIEN ILLEGALLY IN THE UNITED STATES AND WAS THREATENED WITH
DEPORTATION.  PROCEEDINGS TO EFFECT HER DEPORTATION HAVE BEEN POSTPONED
FROM TIME TO TIME.  IN JULY, 1936, SHE APPLIED FOR AN AMERICAN PASSPORT
BUT IT WAS REFUSED BY THE SECRETARY OF STATE UPON THE SOLE GROUND THAT
HE WAS WITHOUT AUTHORITY TO ISSUE IT BECAUSE SHE WAS NOT A CITIZEN OF
THE UNITED STATES. 

THEREUPON SHE BEGAN THIS SUIT AGAINST THE SECRETARY OF LABOR, THE
ACTING COMMISSIONER OF IMMIGRATION AND NATURALIZATION, AND THE
SECRETARY OF STATE TO OBTAIN (1) A DECLARATORY JUDGMENT THAT SHE IS A
CITIZEN OF THE UNITED STATES AND ENTITLED TO ALL THE RIGHTS AND
PRIVILEGES OF CITIZENSHIP, AND (2) AN INJUNCTION AGAINST THE SECRETARY
OF LABOR AND THE COMMISSIONER OF IMMIGRATION RESTRAINING THEM FROM
PROSECUTING PROCEEDINGS FOR HER DEPORTATION, AND (3) AN INJUNCTION
AGAINST THE SECRETARY OF STATE FROM REFUSING TO ISSUE TO HER A PASSPORT
UPON THE GROUND THAT SHE IS NOT A CITIZEN. 

THE DEFENDANTS MOVED TO DISMISS THE COMPLAINT, ASSERTING THAT
PLAINTIFF WAS NOT A CITIZEN OF THE UNITED STATES BY VIRTUE OF THE
NATURALIZATION CONVENTION AND PROTOCOL OF 1869(PROCLAIMED IN 1872)
BETWEEN THE UNITED STATES AND SWEDEN (17 STAT. 809) AND THE SWEDISH
NATIONALITY LAW, AND SEC. 2 OF THE ACT OF CONGRESS OF MARCH 2, 1907, 8
U.S.C. 17.  THE DISTRICT COURT OVERRULED THE MOTION AS TO THE SECRETARY
OF LABOR AND THE COMMISSIONER OF IMMIGRATION AND ENTERED A DECREE
DECLARING THAT THE PLAINTIFF IS A NATIVE CITIZEN OF THE UNITED STATES
BUT DIRECTING THAT THE COMPLAINT BE DISMISSED AS TO THE SECRETARY OF
STATE BECAUSE OF HIS OFFICIAL DISCRETION IN THE ISSUE OF PASSPORTS.  ON
CROSS APPEALS, THE COURT OF APPEALS AFFIRMED THE DECREE.  69 APP. D.C.
175; 99 F.2D 408.  CERTIORARI WAS GRANTED, DECEMBER 5, 1938. 

FIRST.  ON HER BIRTH IN NEW YORK, THE PLAINTIFF BECAME A CITIZEN OF
THE UNITED STATES.  CIVIL RIGHTS ACT OF 1866, 14 STAT. 27; FOURTEENTH
AMENDMENT, SEC. 1; UNITED STATES V. WONG KIM ARK, 169 U.S. 649.  IN A
COMPREHENSIVE REVIEW OF THE PRINCIPLES AND AUTHORITIES GOVERNING THE
DECISION IN THAT CASE - THAT A CHILD BORN HERE OF ALIEN PARENTAGE
BECOMES A CITIZEN OF THE UNITED STATES - THE COURT ADVERTED TO THE
"INHERENT RIGHT OF EVERY INDEPENDENT NATION TO DETERMINE FOR ITSELF,
AND ACCORDING TO ITS OWN CONSTITUTION AND LAWS, WHAT CLASSES OF PERSONS
SHALL BE ENTITLED TO ITS CITIZENSHIP."  UNITED STATES V. WONG KIM ARK,
SUPRA, P. 668.  AS MUNICIPAL LAW DETERMINES HOW CITIZENSHIP MAY BE
ACQUIRED, IT FOLLOWS THAT PERSONS MAY HAVE A DUAL NATIONALITY.  FN1
AND THE MERE FACT THAT THE PLAINTIFF MAY HAVE ACQUIRED SWEDISH
CITIZENSHIP BY VIRTUE OF THE OPERATION OF SWEDISH LAW, ON THE
RESUMPTION OF THAT CITIZENSHIP BY HER PARENTS, DOES NOT COMPEL THE
CONCLUSION THAT SHE HAS LOST HER OWN CITIZENSHIP ACQUIRED UNDER OUR
LAW.  AS AT BIRTH SHE BECAME A CITIZEN OF THE UNITED STATES, THAT
CITIZENSHIP MUST BE DEEMED TO CONTINUE UNLESS SHE HAS BEEN DEPRIVED OF
IT THROUGH THE OPERATION OF A TREATY OR CONGRESSIONAL ENACTMENT OR BY
HER VOLUNTARY ACTION IN CONFORMITY WITH APPLICABLE LEGAL PRINCIPLES. 

SECOND.  IT HAS LONG BEEN A RECOGNIZED PRINCIPLE IN THIS COUNTRY THAT
IF A CHILD BORN HERE IS TAKEN DURING MINORITY TO THE COUNTRY OF HIS
PARENTS' ORIGIN, WHERE HIS PARENTS RESUME THEIR FORMER ALLEGIANCE, HE
DOES NOT THEREBY LOSE HIS CITIZENSHIP IN THE UNITED STATES PROVIDED
THAT ON ATTAINING MAJORITY HE ELECTS TO RETAIN THAT CITIZENSHIP AND TO
RETURN TO THE UNITED STATES TO ASSUME ITS DUTIES.  FN2 

THIS PRINCIPLE WAS CLEARLY STATED BY ATTORNEY GENERAL EDWARDS
PIERREPONT IN HIS LETTER OF ADVICE TO THE SECRETARY OF STATE, HAMILTON
FISH, IN STEINKAULER'S CASE, 15 OP. ATTYS.  GEN'L, 15(1875).  THE FACTS
WERE THESE:  ONE STEINKAULER, A PRUSSIAN SUBJECT BY BIRTH, EMIGRATED TO
THE UNITED STATES IN 1848, WAS NATURALIZED IN 1854, AND IN THE
FOLLOWING YEAR HAD A SON WHO WAS BORN IN ST. LOUIS.  FOUR YEARS LATER
STEINKAULER RETURNED TO GERMANY TAKING THIS CHILD AND BECAME DOMICILED
AT WIESBADEN WHERE THEY CONTINUOUSLY RESIDED.  WHEN THE SON REACHED THE
AGE OF TWENTY YEARS THE GERMAN GOVERNMENT CALLED UPON HIM TO REPORT FOR
MILITARY DUTY AND HIS FATHER THEN INVOKED THE INTERVENTION OF THE
AMERICAN LEGATION ON THE GROUND THAT HIS SON WAS A NATIVE CITIZEN OF
THE UNITED STATES.  TO AN INQUIRY BY OUR MINISTER, THE FATHER DECLINED
TO GIVE AN ASSURANCE THAT THE SON WOULD RETURN TO THIS COUNTRY WITHIN A
REASONABLE TIME.  ON REVIEWING THE PERTINENT POINTS IN THE CASE,
INCLUDING THE NATURALIZATION TREATY OF 1868 WITH NORTH GERMANY, THE
ATTORNEY GENERAL REACHED THE FOLLOWING CONCLUSION: 

"YOUNG STEINKAULER IS A NATIVE-BORN AMERICAN CITIZEN.  THERE IS NO
LAW OF THE UNITED STATES UNDER WHICH HIS FATHER OR ANY OTHER PERSON CAN
DEPRIVE HIM OF HIS BIRTHRIGHT.  HE CAN RETURN TO AMERICA AT THE AGE OF
TWENTY-ONE, AND IN DUE TIME, IF THE PEOPLE ELECT, HE CAN BECOME
PRESIDENT OF THE UNITED STATES; BUT THE FATHER, IN ACCORDANCE WITH THE
TREATY AND THE LAWS, HAS RENOUNCED HIS AMERICAN CITIZENSHIP AND HIS
AMERICAN ALLEGIANCE AND HAS ACQUIRED FOR HIMSELF AND HIS SON GERMAN
CITIZENSHIP AND THE RIGHTS WHICH IT CARRIES, AND HE MUST TAKE THE
BURDENS AS WELL AS THE ADVANTAGES.  THE SON BEING DOMICILED WITH THE
FATHER AND SUBJECT TO HIM UNDER THE LAW DURING HIS MINORITY, AND
RECEIVING THE GERMAN PROTECTION WHERE HE HAS ACQUIRED NATIONALITY AND
DECLINING TO GIVE ANY ASSURANCE OF EVER RETURNING TO THE UNITED STATES
AND CLAIMING HIS AMERICAN NATIONALITY BY RESIDENCE HERE, I AM OF
OPINION THAT HE CANNOT RIGHTLY INVOKE THE AID OF THE GOVERNMENT OF THE
UNITED STATES TO RELIEVE HIM FROM MILITARY DUTY IN GERMANY DURING HIS
MINORITY.  BUT I AM OF OPINION THAT WHEN HE REACHES THE AGE OF TWENTY
ONE YEARS HE CAN THEN ELECT WHETHER HE WILL RETURN AND TAKE THE
NATIONALITY OF HIS BIRTH, WITH ITS DUTIES AND PRIVILEGES, OR RETAIN THE
NATIONALITY ACQUIRED BY THE ACT OF HIS FATHER.  THIS SEEMS TO ME TO BE
'RIGHT REASON', AND I THINK IT IS LAW." 

SECRETARY WILLIAM M. EVARTS, IN 1879, IN AN INSTRUCTION TO OUR
MINISTER TO GERMANY WITH RESPECT TO THE STATUS OF THE BROTHERS
BOISSELIERS WHO WERE BORN IN THE UNITED STATES OF GERMAN PARENTAGE
SAID:  FN3 

"THEIR RIGHTS REST ON THE ORGANIC LAW OF THE UNITED STATES.  ...
THEIR FATHER, IT IS TRUE, TOOK THEM TO SCHLESWIG WHEN THEY WERE QUITE
YOUNG, THE ONE FOUR AND THE OTHER TWO YEARS OLD.  THEY LIVED THERE MANY
YEARS, BUT DURING ALL THOSE YEARS THEY WERE MINORS, AND DURING THEIR
MINORITY THEY RETURNED TO THE UNITED STATES; AND NOW, WHEN BOTH HAVE
ATTAINED THEIR MAJORITY, THEY DECLARE FOR THEIR NATIVE ALLEGIANCE AND
SUBMIT THEMSELVES TO THE JURISDICTION OF THE COUNTRY WHERE THEY WERE
BORN AND OF WHICH THEY ARE NATIVE CITIZENS.  UNDER THESE CIRCUMSTANCES
THIS GOVERNMENT CANNOT RECOGNIZE ANY CLAIM TO THEIR ALLEGIANCE, OR
THEIR LIABILITY TO MILITARY SERVICE, PUT FORTH ON THE PART OF GERMANY,
WHATEVER MAY BE THE MUNICIPAL LAW OF GERMANY UNDER WHICH SUCH CLAIM MAY
BE ASSERTED BY THAT GOVERNMENT." 

SECRETARY EVARTS GAVE A SIMILAR INSTRUCTION IN 1880 WITH RESPECT TO A
NATIVE CITIZEN OF DANISH PARENTAGE WHO HAVING BEEN TAKEN ABROAD AT AN
EARLY AGE CLAIMED AMERICAN CITIZENSHIP ON ATTAINING HIS MAJORITY,
SAYING:  FN4 

"HE LOST NO TIME, WHEN HE ATTAINED THE AGE OF MAJORITY, IN DECLARING
THAT HE CLAIMED THE UNITED STATES AS HIS COUNTRY, AND THAT HE
CONSIDERED HIMSELF A CITIZEN OF THE UNITED STATES.  HE APPEARS TO HAVE
ADHERED TO THIS CHOICE EVER SINCE, AND NOW DECLARES IT TO BE HIS
INTENTION TO RETURN TO THIS COUNTRY AND RESIDE HERE PERMANENTLY.  HIS
FATHER'S POLITICAL STATUS (WHETHER A CITIZEN OF THE UNITED STATES OR A
DANISH SUBJECT) HAS NO LEGAL OR OTHERWISE MATERIAL EFFECT ON THE
YOUNGER P  S' RIGHTS OF CITIZENSHIP." 

SECRETARY THOMAS F. BAYARD, IN ANSWER TO AN INQUIRY BY THE
NETHERLANDS LEGATION WHETHER ONE BORN IN THE UNITED STATES, OF DUTCH
PARENTS, WHO DURING MINORITY HAD BEEN TAKEN BACK TO THE NETHERLANDS BY
HIS FATHER, ON THE LATTER'S RESUMPTION OF PERMANENT RESIDENCE THERE,
WAS AN AMERICAN CITIZEN, ANSWERED:  FN5 

"BUT THE GENERAL VIEW HELD BY THIS DEPARTMENT IS THAT A NATURALIZED
AMERICAN CITIZEN BY ABANDONMENT OF HIS ALLEGIANCE AND RESIDENCE IN THIS
COUNTRY AND A RETURN TO THE COUNTRY OF HIS BIRTH, ANIMO MANENDI, CEASES
TO BE A CITIZEN OF THE UNITED STATES; AND THAT THE MINOR SON OF A PARTY
DESCRIBED AS AFORESAID, WHO WAS BORN IN THE UNITED STATES DURING THE
CITIZENSHIP THERE OF HIS FATHER, PARTAKES DURING HIS LEGAL INFANCY OF
HIS FATHER'S DOMICILE, BUT UPON BECOMING SUI JURIS HAS THE RIGHT TO
ELECT HIS AMERICAN CITIZENSHIP, WHICH WILL BE BEST EVIDENCED BY AN
EARLY RETURN TO THIS COUNTRY. 

"THIS RIGHT SO TO ELECT TO RETURN TO THE LAND OF HIS BIRTH AND ASSUME
HIS AMERICAN CITIZENSHIP COULD NOT, WITH THE ACQUIESCENCE OF THIS
GOVERNMENT, BE IMPAIRED OR INTERFERED WITH." 

IN 1906, A MEMORANDUM, PREPARED IN THE DEPARTMENT OF STATE BY ITS LAW
OFFICER, WAS SENT BY THE ACTING SECRETARY OF STATE, ROBERT BACON, TO
THE GERMAN AMBASSADOR AS COVERING "THE PRINCIPLES" UPON WHICH THE
DEPARTMENT HAD ACTED.  IN THIS MEMORANDUM IT WAS SAID:  FN6 

"ASSUMING THAT ALEXANDER BOHN (THE FATHER) NEVER BECAME A CITIZEN OF
THE UNITED STATES, JACOB BOHN (THE SON) WAS BORN OF GERMAN PARENTS IN
THE UNITED STATES.  ACCORDING TO THE CONSTITUTION AND LAWS OF THE
UNITED STATES AS INTERPRETED BY THE COURTS, A CHILD BORN TO ALIEN
PARENTS IN THE UNITED STATES IS AN AMERICAN CITIZEN, ALTHOUGH SUCH
CHILD MAY ALSO BE A CITIZEN OF THE COUNTRY OF HIS PARENTS ACCORDING TO
THE LAW OF THAT COUNTRY. 

"ALTHOUGH THERE IS NO EXPRESS PROVISION IN THE LAW OF THE UNITED
STATES GIVING ELECTION OF CITIZENSHIP IN SUCH CASES, THIS DEPARTMENT
HAS ALWAYS HELD IN SUCH CIRCUMSTANCES THAT IF A CHILD IS BORN OF
FOREIGN PARENTS IN THE UNITED STATES, AND IS TAKEN DURING MINORITY TO
THE COUNTRY OF HIS PARENTS, SUCH CHILD UPON ARRIVING OF AGE, OR WITHIN
A REASONABLE TIME THEREAFTER, MUST MAKE ELECTION BETWEEN THE
CITIZENSHIP WHICH IS HIS BY BIRTH AND THE CITIZENSHIP WHICH IS HIS BY
PARENTAGE.  IN CASE A PERSON SO CIRCUMSTANCED ELECTS AMERICAN
CITIZENSHIP HE MUST, UNLESS IN EXTRAORDINARY CIRCUMSTANCES, IN ORDER TO
RENDER HIS ELECTION EFFECTIVE, MANIFEST AN INTENTION IN GOOD FAITH TO
RETURN WITH ALL CONVENIENT SPEED TO THE UNITED STATES AND ASSUME THE
DUTIES OF CITIZENSHIP."  FN7 

WE HAVE QUOTED LIBERALLY FROM THESE RULINGS - AND MANY OTHERS MIGHT
BE CITED - IN VIEW OF THE CONTENTION NOW URGED BY THE PETITIONERS IN
RESISTING MISS ELG'S CLAIM TO CITIZENSHIP.  WE THINK THAT THEY LEAVE NO
DOUBT OF THE CONTROLLING PRINCIPLE LONG RECOGNIZED BY THIS GOVERNMENT. 
THAT PRINCIPLE, WHILE ADMINISTRATIVELY APPLIED, CANNOT PROPERLY BE
REGARDED AS A DEPARTMENTAL CREATION INDEPENDENTLY OF THE LAW.  IT WAS
DEEMED TO BE A NECESSARY CONSEQUENCE OF THE CONSTITUTIONAL PROVISION BY
WHICH PERSONS BORN WITHIN THE UNITED STATES AND SUBJECT TO ITS
JURISDICTION BECOME CITIZENS OF THE UNITED STATES.  TO CAUSE A LOSS OF
THAT CITIZENSHIP IN THE ABSENCE OF TREATY OR STATUTE HAVING THAT
EFFECT, THERE MUST BE VOLUNTARY ACTION AND SUCH ACTION CANNOT BE
ATTRIBUTED TO AN INFANT WHOSE REMOVAL TO ANOTHER COUNTRY IS BEYOND HIS
CONTROL AND WHO DURING MINORITY IS INCAPABLE OF A BINDING CHOICE. 
PETITIONERS STRESS THE AMERICAN DOCTRINE RELATING TO EXPATRIATION.  BY
THE ACT OF JULY 27, 1868, FN8  CONGRESS DECLARED THAT "THE RIGHT OF
EXPATRIATION IS A NATURAL AND INHERENT RIGHT OF ALL PEOPLE." 
EXPATRIATION IS THE VOLUNTARY RENUNCIATION OR ABANDONMENT OF
NATIONALITY AND ALLEGIANCE.  FN9  IT HAS NO APPLICATION TO THE REMOVAL
FROM THIS COUNTRY OF A NATIVE CITIZEN DURING MINORITY.  IN SUCH A CASE
THE VOLUNTARY ACTION WHICH IS OF THE ESSENCE OF THE RIGHT OF
EXPATRIATION IS LACKING.  THAT RIGHT IS FITTINGLY RECOGNIZED WHERE A
CHILD BORN HERE, WHO MAY BE, OR MAY BECOME, SUBJECT TO A DUAL
NATIONALITY, ELECTS ON ATTAINING MAJORITY CITIZENSHIP IN THE COUNTRY TO
WHICH HE HAS BEEN REMOVED.  BUT THERE IS NO BASIS FOR INVOKING THE
DOCTRINE OF EXPATRIATION WHERE A NATIVE CITIZEN WHO IS REMOVED TO HIS
PARENTS' COUNTRY OF ORIGIN DURING MINORITY RETURNS HERE ON HIS MAJORITY
AND ELECTS TO REMAIN AND TO MAINTAIN HIS AMERICAN CITIZENSHIP.  INSTEAD
OF BEING INCONSISTENT WITH THE RIGHT OF EXPATRIATION, THE PRINCIPLE
WHICH PERMITS THAT ELECTION CONSERVES AND APPLIES IT. 

THE QUESTION THEN IS WHETHER THIS WELL RECOGNIZED RIGHT OF ELECTION
HAS BEEN DESTROYED BY TREATY OR STATUTE. 

THIRD.  PETITIONERS INVOKE OUR TREATY WITH SWEDEN OF 1869.  FN10
THIS TREATY WAS ONE OF A SERIES OF NATURALIZATION TREATIES WITH SIMILAR
TERMS, WHICH WERE NEGOTIATED WITH VARIOUS COUNTRIES BETWEEN 1868 AND
1872.  FN11  THE RELEVANT PORTIONS OF THE TEXT OF THE TREATY WITH
SWEDEN, AND OF THE ACCOMPANYING PROTOCOL, ARE SET FORTH IN THE MARGIN. 
FN12  THE TREATY MANIFESTLY DEALS WITH EXPATRIATION AND THE RECOGNITION
OF NATURALIZATION BY THE RESPECTIVE POWERS.  THE RECITAL STATES ITS
PURPOSE; THAT IS, "TO REGULATE THE CITIZENSHIP OF THOSE PERSONS WHO
EMIGRATE" TO ONE COUNTRY FROM THE OTHER.  THE TERMS OF THE TREATY ARE
DIRECTED TO THAT PURPOSE AND ARE APPROPRIATE TO THE RECOGNITION OF THE
STATUS OF THOSE WHO VOLUNTARILY TAKE UP THEIR RESIDENCE FOR THE
PRESCRIBED PERIOD IN THE COUNTRY TO WHICH THEY EMIGRATE.  ARTICLE I OF
THE TREATY PROVIDES: 

"CITIZENS OF THE UNITED STATES OF AMERICA WHO HAVE RESIDED IN SWEDEN
OR NORWAY FOR A CONTINUOUS PERIOD OF AT LEAST FIVE YEARS, AND DURING
SUCH RESIDENCE HAVE BECOME AND ARE LAWFULLY RECOGNIZED AS CITIZENS OF
SWEDEN OR NORWAY, SHALL BE HELD BY THE GOVERNMENT OF THE UNITED STATES
TO BE SWEDISH OR NORWEGIAN CITIZENS, AND SHALL BE TREATED AS SUCH. 

"RECIPROCALLY, CITIZENS OF SWEDEN OR NORWAY WHO HAVE RESIDED IN THE
UNITED STATES OF AMERICA FOR A CONTINUOUS PERIOD OF AT LEAST FIVE
YEARS, AND DURING SUCH RESIDENCE HAVE BECOME NATURALIZED CITIZENS OF
THE UNITED STATES, SHALL BE HELD BY THE GOVERNMENT OF SWEDEN AND NORWAY
TO BE AMERICAN CITIZENS, AND SHALL BE TREATED AS SUCH. 

"THE DECLARATION OF AN INTENTION TO BECOME A CITIZEN OF ONE OR THE
OTHER COUNTRY HAS NOT FOR EITHER PARTY THE EFFECT OF CITIZENSHIP
LEGALLY ACQUIRED." 

WE THINK THAT THIS PROVISION IN ITS DIRECT APPLICATION CLEARLY
IMPLIES A VOLUNTARY RESIDENCE AND IT WOULD THUS APPLY IN THE INSTANT
CASE TO THE FATHER OF RESPONDENT.  THERE IS NO SPECIFIC MENTION OF
MINOR CHILDREN WHO HAVE OBTAINED CITIZENSHIP BY BIRTH IN THE COUNTRY
WHICH THEIR PARENTS HAVE LEFT.  AND IF IT BE ASSUMED THAT A CHILD BORN
IN THE UNITED STATES WOULD BE DEEMED TO ACQUIRE THE SWEDISH CITIZENSHIP
OF HIS PARENTS THROUGH THEIR RETURN TO SWEDEN AND RESUMPTION OF
CITIZENSHIP THERE,  FN13  STILL NOTHING IS SAID IN THE TREATY WHICH IN
SUCH A CASE WOULD DESTROY THE RIGHT OF ELECTION WHICH APPROPRIATELY
BELONGS TO THE CHILD ON ATTAINING MAJORITY.  IF THE ABROGATION OF THAT
RIGHT HAD BEEN IN CONTEMPLATION, IT WOULD NATURALLY HAVE BEEN THE
SUBJECT OF A PROVISION SUITABLY EXPLICIT.  RIGHTS OF CITIZENSHIP ARE
NOT TO BE DESTROYED BY AN AMBIGUITY.  MOREOVER, THE PROVISIONS OF
ARTICLE III MUST BE READ IN CONNECTION WITH ARTICLE I. ARTICLE III
PROVIDES: 

"IF A CITIZEN OF THE ONE PARTY, WHO HAS BECOME A RECOGNIZED CITIZEN
OF THE OTHER PARTY, TAKES UP HIS ABODE ONCE MORE IN HIS ORIGINAL
COUNTRY AND APPLIES TO BE RESTORED TO HIS FORMER CITIZENSHIP, THE
GOVERNMENT OF THE LAST-NAMED COUNTRY IS AUTHORIZED TO RECEIVE HIM AGAIN
AS A CITIZEN ON SUCH CONDITIONS AS THE SAID GOVERNMENT MAY THINK
PROPER." 

IF THE FIRST ARTICLE COULD BE TAKEN TO COVER THE CASE OF A CHILD
THROUGH THE DERIVATION OF CITIZENSHIP FROM THAT OF HIS EMIGRATING
PARENTS, ARTICLE III BY THE SAME TOKEN WOULD BE APPLICABLE TO THE CASE
OF A CHILD BORN HERE AND TAKEN TO SWEDEN, WHO AT MAJORITY ELECTS TO
RETURN TO THE UNITED STATES AND TO ASSUME THE PRIVILEGES AND
OBLIGATIONS OF AMERICAN CITIZENSHIP.  IN THAT EVENT, THE GOVERNMENT OF
THE UNITED STATES IS EXPRESSLY AUTHORIZED TO RECEIVE ONE SO RETURNING
"AS A CITIZEN ON SUCH CONDITIONS AS THE SAID GOVERNMENT MAY THINK
PROPER."  AND IF THIS GOVERNMENT CONSIDERS THAT A NATIVE CITIZEN TAKEN
FROM THE UNITED STATES BY HIS PARENTS DURING MINORITY IS ENTITLED TO
RETAIN HIS AMERICAN CITIZENSHIP BY ELECTING AT MAJORITY TO RETURN AND
RESIDE HERE, THERE WOULD APPEAR TO BE NOTHING IN THE TREATY WHICH WOULD
GAINSAY THE AUTHORITY OF THE UNITED STATES TO RECOGNIZE THAT PRIVILEGE
OF ELECTION AND TO RECEIVE THE RETURNING NATIVE UPON THAT BASIS.  THUS,
ON THE FACTS OF THE PRESENT CASE, THE TREATY DOES NOT PURPORT TO DENY
TO THE UNITED STATES THE RIGHT TO TREAT RESPONDENT AS A CITIZEN OF THE
UNITED STATES, AND IT NECESSARILY FOLLOWS THAT, IN THE ABSENCE OF SUCH
A DENIAL, THE TREATY CANNOT BE SET UP AS A GROUND FOR REFUSING TO
ACCORD TO RESPONDENT THE RIGHTS OF CITIZENSHIP IN ACCORDANCE WITH OUR
CONSTITUTION AND LAWS BY VIRTUE OF HER BIRTH IN THE UNITED STATES. 

NOR DO WE FIND ANYTHING IN THE TERMS OF THE PROTOCOL, ACCOMPANYING
THE TREATY, WHICH CAN BE TAKEN TO OVERRIDE THE RIGHT OF ELECTION WHICH
RESPONDENT WOULD OTHERWISE POSSESS.  ARTICLE III OF THE PROTOCOL REFERS
TO THE CASE OF A SWEDE WHO HAS BECOME A NATURALIZED CITIZEN OF THE
UNITED STATES AND LATER RENEWS HIS RESIDENCE IN SWEDEN "WITHOUT THE
INTENT TO RETURN TO AMERICA."  AND IT PROVIDES THAT THE INTENT NOT TO
RETURN MAY BE HELD TO EXIST WHEN THE PERSON "SO NATURALIZED" RESIDES
MORE THAN TWO YEARS IN SWEDEN.  THIS DOES NOT APPEAR TO BE APPLICABLE
TO RESPONDENT, WHO WAS BORN IN THE UNITED STATES, BUT, APART FROM THAT,
THE INTENT NOT TO RETURN COULD NOT PROPERLY BE ATTRIBUTED TO HER DURING
MINORITY, AND IF IT WERE SO ATTRIBUTED, THE PRESUMPTION WOULD BE
REBUTTED BY THE ELECTION TO RETURN TO THE UNITED STATES AT MAJORITY. 
COMPARE UNITED STATES V. HOWE, 231 F. 546, 549.  FN14 

THE VIEWS WE HAVE EXPRESSED FIND SUPPORT IN THE CONSTRUCTION PLACED
UPON THE NATURALIZATION TREATIES OF 1868 TO 1872  FN15  IN THE PERIOD
FOLLOWING THEIR RATIFICATION.  THE FIRST OF THOSE TREATIES WAS MADE IN
1868 WITH THE NORTH GERMAN CONFEDERATION  FN16  AND CONTAINED
PROVISIONS SIMILAR TO THOSE FOUND IN THE TREATY WITH SWEDEN.  BUT IT
WAS UNDER THIS GERMAN TREATY THAT STEINKAULER'S CASE AROSE IN 1875, TO
WHICH WE HAVE ALREADY REFERRED, WHERE ATTORNEY GENERAL PIERREPONT
UPHELD THE RIGHT OF ELECTION, SAYING:"  FN17  UNDER THE TREATY, AND IN
HARMONY WITH THE AMERICAN DOCTRINE, IT IS CLEAR THAT STEINKAULER, THE
FATHER, ABANDONED HIS NATURALIZATION IN AMERICA AND BECAME A GERMAN
SUBJECT (HIS SON BEING YET A MINOR), AND THAT BY VIRTUE OF GERMAN LAWS
THE SON ACQUIRED GERMAN NATIONALITY.  IT IS EQUALLY CLEAR THAT THE SON
BY BIRTH HAS AMERICAN NATIONALITY; AND HENCE HE HAS TWO NATIONALITIES,
ONE NATURAL, THE OTHER ACQUIRED.  ...  THERE IS NO LAW OF THE UNITED
STATES UNDER WHICH HIS FATHER OR ANY OTHER PERSON CAN DEPRIVE HIM OF
HIS BIRTHRIGHT."  TO THE SAME EFFECT, AS TO THE RIGHT OF ELECTION, WAS
THE RULING OF SECRETARY EVARTS IN 1879 IN HIS INSTRUCTION, ABOVE
QUOTED, TO OUR MINISTER TO GERMANY WITH RESPECT TO THE BROTHERS
BOISSELIERS.  FN18 

THERE WERE PROVISIONS SIMILAR TO THOSE IN THE TREATY WITH SWEDEN IN
THE NATURALIZATION TREATY WITH DENMARK OF 1872,  FN19  BUT SECRETARY
EVARTS EVIDENTLY DID NOT REGARD THOSE PROVISIONS AS INCONSISTENT WITH
THE CLAIM, WHICH HE SUSTAINED, OF ONE BORN HERE OF DANISH PARENTAGE WHO
WAS TAKEN ABROAD BY HIS PARENTS BUT INSISTED UPON HIS AMERICAN
CITIZENSHIP WHEN HE ARRIVED AT HIS MAJORITY.  FN20  THESE RULINGS,
FOLLOWING CLOSELY UPON THE NEGOTIATION OF THESE NATURALIZATION
TREATIES, SHOW BEYOND QUESTION THAT THE TREATIES WERE NOT REGARDED AS
ABROGATING THE RIGHT OF ELECTION FOR WHICH RESPONDENT HERE CONTENDS. 

LATER RULINGS WERE TO THE SAME EFFECT.  THUS, IN 1890, IN DEALING
WITH A NATIVE AMERICAN CITIZEN WHO, UPON HIS OWN APPLICATION, HAD BEEN
ADMITTED TO DANISH CITIZENSHIP DURING HIS MINORITY, AND WHO HAD NOT YET
COME OF AGE, THE SECRETARY OF STATE, WHILE RECOGNIZING THAT "WHEN A
CITIZEN OF THE UNITED STATES VOLUNTARILY BECOMES NATURALIZED OR
RENATURALIZED IN A FOREIGN COUNTRY, HE IS TO BE REGARDED AS HAVING LOST
HIS RIGHTS AS AN AMERICAN CITIZEN," WAS CAREFUL TO MAKE THE FOLLOWING
QUALIFICATIONS IN SUPPORT OF THE RIGHT OF ELECTION AT MAJORITY,
SAYING: 

"AS MR. ANDERSON HAS NOT YET ATTAINED HIS MAJORITY, THE DEPARTMENT IS
NOT PREPARED TO ADMIT THAT PROCEEDINGS TAKEN ON HIS BEHALF IN DENMARK
DURING HIS MINORITY WOULD DEPRIVE HIM OF HIS RIGHT, UPON REACHING THE
AGE OF TWENTY-ONE YEARS, TO ELECT TO BECOME AN AMERICAN CITIZEN BY
IMMEDIATELY RETURNING TO THIS COUNTRY TO RESUME HIS ALLEGIANCE HERE." 
FN21 

PETITIONERS REFER TO AN INSTRUCTION BY SECRETARY SHERMAN IN 1897
FN22  IN ANSWER TO A QUESTION AS TO THE EFFECT OF A PERSON'S RETURN TO
HIS NATIVE COUNTRY FOR A VISIT ON HIS RIGHTS AS AN AMERICAN CITIZEN
WHICH HAD BEEN ACQUIRED THROUGH THE NATURALIZATION OF HIS FATHER. 
WHILE SECRETARY SHERMAN RECOGNIZED "THE ACQUISITION OF UNITED STATES
CITIZENSHIP BY AN ALIEN-BORN MINOR THROUGH THE LAWFUL NATURALIZATION OF
HIS FATHER UNDER THE OPERATION OF SECTION 2172, REVISED STATUTES," THE
SECRETARY ADDED THE FOLLOWING: 

"IF SUCH A PARTY HAVING THUS BECOME A RECOGNIZED CITIZEN OF THE
UNITED STATES, TAKES UP HIS ABODE ONCE MORE IN HIS ORIGINAL COUNTRY,
AND APPLIES TO BE RESTORED TO HIS FORMER CITIZENSHIP, THE GOVERNMENT OF
THE LAST NAMED COUNTRY IS AUTHORIZED TO RECEIVE HIM AGAIN AS A CITIZEN,
ON SUCH CONDITIONS AS THE SAID GOVERNMENT MAY THINK PROPER.  (TREATY OF
1869, ARTICLE III.)  OR HE MAY BY RESIDENCE IN THE COUNTRY OF ORIGIN,
WITHOUT INTENT TO RETURN TO THE UNITED STATES, BE HELD TO HAVE
RENOUNCED HIS AMERICAN CITIZENSHIP.  (PROTOCOL, MAY 26, 1869.)  BUT
THIS PRESUMPTION, LIKE ALL PRESUMPTIONS OF INTENT, MAY BE REBUTTED BY
PROOF.  UNTIL A PERSON SO CIRCUMSTANCED SHALL BE HELD TO HAVE
VOLUNTARILY ABANDONED HIS AMERICAN CITIZENSHIP, OR SHALL HAVE ACQUIRED
ANOTHER CITIZENSHIP UPON APPLICATION TO THAT END AND BY DUE PROCESS OF
LAW, THIS GOVERNMENT IS ENTITLED TO CLAIM HIS ALLEGIANCE AND
CONSTRAINED TO PROTECT HIM AS A CITIZEN SO LONG AS HE SHALL BE FOUND
BONA FIDE ENTITLED THERETO." 

WE FIND NOTHING IN THAT INSTRUCTION WHICH IS INCONSISTENT WITH THE
MAINTENANCE OF RESPONDENT'S RIGHT OF ELECTION IN THE INSTANT CASE.  SO
FAR AS THE INSTRUCTION IN RELATION TO A NATURALIZED MINOR MAY BE DEEMED
TO BE PERTINENT, IT CONFIRMS RATHER THAN OPPOSES RESPONDENT'S RIGHT TO
BE CONSIDERED AN AMERICAN CITIZEN. 

THAT THE DEPARTMENT OF STATE CONTINUED TO MAINTAIN THE RIGHT OF
ELECTION IS FURTHER SHOWN BY THE MEMORANDUM OF APPLICABLE PRINCIPLES
WHICH IT ISSUED IN 1906, ABOVE QUOTED, TO THE EFFECT THAT THE
DEPARTMENT HAD "ALWAYS HELD IN SUCH CIRCUMSTANCES THAT IF A CHILD IS
BORN OF FOREIGN PARENTS IN THE UNITED STATES, AND IS TAKEN DURING
MINORITY TO THE COUNTRY OF HIS PARENTS, SUCH CHILD UPON ARRIVING OF
AGE, OR WITHIN A REASONABLE TIME THEREAFTER, MUST MAKE ELECTION BETWEEN
THE CITIZENSHIP WHICH IS HIS BY BIRTH AND THE CITIZENSHIP WHICH IS HIS
BY PARENTAGE."  FN23 

FOURTH.  WE THINK THAT PETITIONERS' CONTENTION UNDER SEC. 2 OF THE ACT
OF MARCH 2, 1907,  FN24 IS EQUALLY UNTENABLE.  THAT STATUTORY PROVISION
IS AS FOLLOWS: 

"THAT ANY AMERICAN CITIZEN SHALL BE DEEMED TO HAVE EXPATRIATED
HIMSELF WHEN HE HAS BEEN NATURALIZED IN ANY FOREIGN STATE IN CONFORMITY
WITH ITS LAWS, OR WHEN HE HAS TAKEN AN OATH OF ALLEGIANCE TO ANY
FOREIGN STATE. 

"WHEN ANY NATURALIZED CITIZEN SHALL HAVE RESIDED FOR TWO YEARS IN THE
FOREIGN STATE FROM WHICH HE CAME, OR FOR FIVE YEARS IN ANY OTHER
FOREIGN STATE IT SHALL BE PRESUMED THAT HE HAS CEASED TO BE AN AMERICAN
CITIZEN, AND THE PLACE OF HIS GENERAL ABODE SHALL BE DEEMED HIS PLACE
OF RESIDENCE DURING SAID YEARS:  PROVIDED, HOWEVER, THAT SUCH
PRESUMPTION MAY BE OVERCOME ON THE PRESENTATION OF SATISFACTORY
EVIDENCE TO A DIPLOMATIC OR CONSULAR OFFICER OF THE UNITED STATES,
UNDER SUCH RULES AND REGULATIONS AS THE DEPARTMENT OF STATE MAY
PRESCRIBE:  AND PROVIDED ALSO, THAT NO AMERICAN CITIZEN SHALL BE
ALLOWED TO EXPATRIATE HIMSELF WHEN THIS COUNTRY IS AT WAR."  FN25 

PETITIONERS CONTEND THAT RESPONDENT'S ACQUISITION OF DERIVATIVE
SWEDISH CITIZENSHIP MAKES HER A PERSON WHO HAS BEEN "NATURALIZED UNDER
SWEDISH LAW," AND THAT THEREFORE "SHE HAS LOST HER AMERICAN
CITIZENSHIP" THROUGH THE OPERATION OF THIS STATUTE.  WE ARE UNABLE TO
ACCEPT THAT VIEW.  WE THINK THAT THE STATUTE WAS AIMED AT A VOLUNTARY
EXPATRIATION AND WE FIND NO EVIDENCE IN ITS TERMS THAT IT WAS INTENDED
TO DESTROY THE RIGHT OF A NATIVE CITIZEN, REMOVED FROM THIS COUNTRY
DURING MINORITY, TO ELECT TO RETAIN THE CITIZENSHIP ACQUIRED BY BIRTH
AND TO RETURN HERE FOR THAT PURPOSE.  IF BY VIRTUE OF DERIVATION FROM
THE CITIZENSHIP OF ONE'S PARENTS A CHILD IN THAT SITUATION CAN BE
DEEMED TO HAVE BEEN NATURALIZED UNDER THE FOREIGN LAW, STILL WE THINK
IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY THAT SUCH
NATURALIZATION WOULD NOT DESTROY THE RIGHT OF ELECTION.    IT SHOULD
ALSO BE NOTED THAT THE ACT OF 1907 IN SECS. 5 AND 6  FN26  HAS SPECIFIC
REFERENCE TO CHILDREN BORN WITHOUT THE UNITED STATES OF ALIEN PARENTS
BUT SAYS NOTHING AS TO THE LOSS OF CITIZENSHIP BY MINOR CHILDREN BORN
IN THE UNITED STATES. 

THAT IN THE LATTER CASE THE CHILD WAS NOT DEEMED TO HAVE LOST HIS
AMERICAN CITIZENSHIP BY VIRTUE OF THE TERMS OF THE STATUTE BUT MIGHT
STILL WITH REASONABLE PROMPTNESS ON ATTAINING MAJORITY MANIFEST HIS
ELECTION IS SHOWN BY THE VIEWS EXPRESSED IN THE INSTRUCTIONS ISSUED
UNDER DATE OF NOVEMBER 24, 1923, BY THE DEPARTMENT OF STATE TO THE
AMERICAN DIPLOMATIC AND CONSULAR OFFICERS.  FN27  THESE INSTRUCTIONS
DEALT WITH THE QUESTIONS ARISING UNDER THE CITIZENSHIP ACT OF MARCH 2,
1907, AND CASES OF DUAL NATIONALITY.  IT WAS STATED THAT IT WAS DEEMED
DESIRABLE "TO INFORM DIPLOMATIC AND CONSULAR OFFICERS OF THE
DEPARTMENT'S CONCLUSIONS, FOR THEIR GUIDANCE IN HANDLING INDIVIDUAL
CASES."  COMMENTING ON DUAL NATIONALITY THE INSTRUCTIONS SAID: 

"THE TERM 'DUAL NATIONALITY' NEEDS EXACT APPRECIATION.  IT REFERS TO
THE FACT THAT TWO STATES MAKE EQUAL CLAIM TO THE ALLEGIANCE OF AN
INDIVIDUAL AT THE SAME TIME.  THUS, ONE STATE MAY CLAIM HIS ALLEGIANCE
BECAUSE OF HIS BIRTH WITHIN ITS TERRITORY, AND THE OTHER BECAUSE AT THE
TIME OF HIS BIRTH IN FOREIGN TERRITORY HIS PARENTS WERE ITS NATIONALS. 
THE LAWS OF THE UNITED STATES PURPORT TO CLOTHE PERSONS WITH AMERICAN
CITIZENSHIP BY VIRTUE OF BOTH PRINCIPLES." 

AND AFTER REFERRING TO THE FOURTEENTH AMENDMENT AND THE ACT OF
FEBRUARY 2, 1855, R.S. 1993, THE INSTRUCTIONS CONTINUED: 

"IT THUS BECOMES IMPORTANT TO NOTE HOW FAR THESE DIFFERING CLAIMS OF
AMERICAN NATIONALITY ARE FAIRLY OPERATIVE WITH RESPECT TO PERSONS
LIVING ABROAD, WHETHER THEY WERE BORN ABROAD OR WERE BORN IN THE UNITED
STATES OF ALIEN PARENTS AND TAKEN DURING MINORITY TO RESIDE IN THE
TERRITORY OF STATES TO WHICH THE PARENTS OWED ALLEGIANCE.  IT IS
LOGICAL THAT, WHILE THE CHILD REMAINS OR RESIDES IN TERRITORY OF THE
FOREIGN STATE CLAIMING HIM AS A NATIONAL, THE UNITED STATES SHOULD
RESPECT ITS CLAIM TO ALLEGIANCE.  THE IMPORTANT POINT TO OBSERVE IS
THAT THE DOCTRINE OF DUAL ALLEGIANCE CEASES, IN AMERICAN CONTEMPLATION,
TO BE FULLY APPLICABLE AFTER THE CHILD HAS REACHED ADULT YEARS. 
THEREAFTER TWO STATES MAY IN FACT CLAIM HIM AS A NATIONAL.  THOSE
CLAIMS ARE NOT, HOWEVER, REGARDED AS OF EQUAL MERIT, BECAUSE ONE OF THE
STATES MAY THEN JUSTLY ASSERT THAT HIS RELATIONSHIP TO ITSELF AS A
NATIONAL IS, BY REASON OF CIRCUMSTANCES THAT HAVE ARISEN, INCONSISTENT
WITH, AND REASONABLY SUPERIOR TO, ANY CLAIM OF ALLEGIANCE ASSERTED BY
ANY OTHER STATE.  ORDINARILY THE STATE IN WHICH THE INDIVIDUAL RETAINS
HIS RESIDENCE AFTER ATTAINING HIS MAJORITY HAS THE SUPERIOR CLAIM.  THE
STATUTORY LAW OF THE UNITED STATES AFFORDS SOME GUIDANCE BUT NOT ALL
THAT COULD BE DESIRED, BECAUSE IT FAILS TO ANNOUNCE THE CIRCUMSTANCES
WHEN THE CHILD WHO RESIDES ABROAD WITHIN THE TERRITORY OF A STATE
REASONABLY CLAIMING HIS ALLEGIANCE FORFEITS COMPLETELY THE RIGHT TO
PERFECT HIS INCHOATE RIGHT TO RETAIN AMERICAN CITIZENSHIP.  THE
DEPARTMENT MUST, THEREFORE, BE RELUCTANT TO DECLARE THAT PARTICULAR
CONDUCT ON THE PART OF A PERSON AFTER REACHING ADULT YEARS IN FOREIGN
TERRITORY PRODUCES A FORFEITURE OR SOMETHING EQUIVALENT TO
EXPATRIATION. 

"THE STATUTE DOES, HOWEVER, MAKE A DISTINCTION BETWEEN THE BURDEN
IMPOSED UPON THE PERSON BORN IN THE UNITED STATES OF FOREIGN PARENTS
AND THE PERSON BORN ABROAD OF AMERICAN PARENTS.  WITH RESPECT TO THE
LATTER, SECTION 6 OF THE ACT OF MARCH 2, 1907, LAYS DOWN THE
REQUIREMENT THAT, AS A CONDITION TO THE PROTECTION OF THE UNITED
STATES, THE INDIVIDUAL MUST, UPON REACHING THE AGE OF 18, RECORD AT AN
AMERICAN CONSULATE AN INTENTION TO REMAIN A CITIZEN OF THE UNITED
STATES, AND MUST ALSO TAKE AN OATH OF ALLEGIANCE TO THE UNITED STATES
UPON ATTAINING HIS MAJORITY. 

"THE CHILD BORN OF FOREIGN PARENTS IN THE UNITED STATES WHO SPENDS
HIS MINORITY IN THE FOREIGN COUNTRY OF HIS PARENTS' NATIONALITY IS NOT
EXPRESSLY REQUIRED BY ANY STATUTE OF THE UNITED STATES TO MAKE THE SAME
ELECTION AS HE APPROACHES OR ATTAINS HIS MAJORITY.  IT IS,
NEVERTHELESS, BELIEVED THAT HIS RETENTION OF A RIGHT TO DEMAND THE
PROTECTION OF THE UNITED STATES SHOULD, DESPITE THE ABSENCE OF STATUTE,
BE DEPENDENT UPON HIS CONVINCING THE DEPARTMENT WITHIN A REASONABLE
PERIOD AFTER THE ATTAINING OF HIS MAJORITY OF AN ELECTION TO RETURN TO
THE UNITED STATES, THERE TO ASSUME THE DUTIES OF CITIZENSHIP.  IN THE
ABSENCE OF A DEFINITE STATUTORY REQUIREMENT, IT IS IMPOSSIBLE TO
PRESCRIBE A LIMITED PERIOD WITHIN WHICH SUCH ELECTION SHOULD BE MADE. 
ON THE OTHER HAND, IT MAY BE ASSERTED NEGATIVELY THAT ONE WHO HAS LONG
MANIFESTED NO INDICATION OF A WILL TO MAKE SUCH AN ELECTION SHOULD NOT
RECEIVE THE PROTECTION OF THE UNITED STATES SAVE UNDER THE EXPRESS
APPROVAL OF THE DEPARTMENT." 

IT THUS APPEARS THAT AS LATE AS 1925, WHEN THE DEPARTMENT ISSUED ITS
"COMPILATION" INCLUDING THE CIRCULAR INSTRUCTION OF NOVEMBER 24, 1923,
IT WAS THE VIEW OF THE DEPARTMENT OF STATE THAT THE ACT OF MARCH 2,
1907, HAD NOT TAKEN AWAY THE RIGHT OF A NATIVE CITIZEN ON ATTAINING
MAJORITY TO RETAIN HIS AMERICAN CITIZENSHIP, WHERE HE WAS BORN IN THE
UNITED STATES OF FOREIGN PARENTS.  WE DO NOT THINK THAT IT WOULD BE A
PROPER CONSTRUCTION OF THE ACT TO HOLD THAT WHILE IT LEAVES UNTOUCHED
THE RIGHT OF ELECTION ON THE PART OF A CHILD BORN IN THE UNITED STATES,
IN CASE HIS PARENTS WERE FOREIGN NATIONALS AT THE TIME OF HIS BIRTH AND
HAVE NEVER LOST THEIR FOREIGN NATIONALITY, STILL THE STATUTE SHOULD BE
TREATED AS DESTROYING THAT RIGHT OF ELECTION IF HIS PARENTS BECAME
FOREIGN NATIONALS THROUGH NATURALIZATION.  THAT WOULD NOT SEEM TO BE A
SENSIBLE DISTINCTION.  HAVING REGARD TO THE PLAIN PURPOSE OF SEC. 2 OF
THE ACT OF 1907, TO DEAL WITH VOLUNTARY EXPATRIATION, WE ARE OF THE
OPINION THAT ITS PROVISIONS DO NOT AFFECT THE RIGHT OF ELECTION, WHICH
WOULD OTHERWISE EXIST, BY REASON OF A WHOLLY INVOLUNTARY AND MERELY
DERIVATIVE NATURALIZATION IN ANOTHER COUNTRY DURING MINORITY.  AND, ON
THE FACTS OF THE INSTANT CASE, THIS VIEW APPARENTLY OBTAINED WHEN IN
JULY, 1929, ON THE INSTRUCTIONS OF THE SECRETARY OF STATE, THE
DEPARTMENT ISSUED THE PASSPORT TO RESPONDENT AS A CITIZEN OF THE UNITED
STATES. 

BUT ALTHOUGH RESPONDENT PROMPTLY MADE HER ELECTION AND TOOK UP HER
RESIDENCE IN THIS COUNTRY ACCORDINGLY, AND HAD CONTINUED TO RESIDE
HERE, SHE WAS NOTIFIED IN APRIL, 1935, THAT SHE WAS AN ALIEN AND WAS
THREATENED WITH DEPORTATION. 

WHEN, PRECISELY, THERE OCCURRED A CHANGE IN THE DEPARTMENTAL ATTITUDE
IS NOT CLEAR.  FN28  IT SEEMS TO HAVE RESULTED IN A CONFLICT WITH THE
OPINION OF THE SOLICITOR OF THE DEPARTMENT OF LABOR IN THE CASE OF
INGRID THERESE TOBIASSEN, AND THE SECRETARY OF LABOR BECAUSE OF THAT
CONFLICT REQUESTED THE OPINION OF THE ATTORNEY GENERAL, WHICH WAS GIVEN
ON JUNE 16, 1932.  FN29  IT APPEARED THAT MISS TOBIASSEN, AGED 20, WAS
BORN IN NEW YORK IN 1911; THAT HER FATHER, A NATIVE OF NORWAY, BECAME A
CITIZEN OF THE UNITED STATES BY NATURALIZATION IN 1912; THAT IN 1919
MISS TOBIASSEN WAS TAKEN BY HER PARENTS TO NORWAY WHERE THE LATTER HAD
SINCE RESIDED; THAT AT THE AGE OF 18 SHE RETURNED TO THE UNITED STATES
AND TOOK UP HER PERMANENT RESIDENCE IN NEW JERSEY.  THE QUESTION AROSE
WHEN SHE ASKED FOR A RETURN PERMIT TO VISIT HER PARENTS.  THE
DEPARTMENT OF STATE REFUSED TO ISSUE A PASSPORT ON THE GROUND THAT MISS
TOBIASSEN HAD ACQUIRED NORWEGIAN NATIONALITY AND HAD CEASED TO BE AN
AMERICAN CITIZEN.  THE ATTORNEY GENERAL'S OPINION APPROVED THAT
ACTION. 

HIS OPINION QUOTED THE PROVISIONS OF THE TREATY WITH SWEDEN AND
NORWAY OF 1869  FN30  AND REFERRED TO THE NORWEGIAN NATIONALITY LAW OF
AUGUST 8, 1924, AND TO THE PROVISIONS OF THE ACT OF CONGRESS OF MARCH
2, 1907.  THE OPINION NOTED THAT THE CLAIM THAT MISS TOBIASSEN HAD
CEASED TO BE AN AMERICAN CITIZEN DID "NOT REST UPON THE TERMS OF THE
NATURALIZATION TREATY WITH NORWAY, BUT UPON A LAW OF THAT COUNTRY, AS A
RESULT OF THE RENUNCIATION BY HER FATHER, A NATIVE OF NORWAY, OF HIS
AMERICAN CITIZENSHIP, AND THE RESUMPTION OF HIS NORWEGIAN NATIONALITY
IN PURSUANCE OF THE TERMS OF THAT TREATY."  THE LAW OF NORWAY WAS
DEEMED TO BE ANALOGOUS TO OUR STATUTES "BY VIRTUE OF WHICH FOREIGN-BORN
MINOR CHILDREN OF PERSONS NATURALIZED IN THE UNITED STATES ARE DECLARED
TO BE CITIZENS OF THIS COUNTRY"; AND HENCE THE CONCLUSION THAT MISS
TOBIASSEN HAVING ACQUIRED NORWEGIAN NATIONALITY HAD IN CONSEQUENCE
CEASED TO BE AN AMERICAN CITIZEN WAS SAID TO BE CORRECT. 

THE OPINION DOES NOT DISCUSS THE RIGHT OF ELECTION OF A NATIVE
CITIZEN OF THE UNITED STATES WHEN HE BECOMES OF AGE TO RETAIN AMERICAN
CITIZENSHIP AND DOES NOT REFER TO THE REPEATED RULINGS OF THE
DEPARTMENT OF STATE IN RECOGNITION OF THAT RIGHT, THE EXERCISE OF
WHICH, AS WE HAVE POINTED OUT, SHOULD NOT BE DEEMED TO BE INCONSISTENT
WITH EITHER TREATY OR STATUTE.  WE ARE RELUCTANT TO DISAGREE WITH THE
OPINION OF THE ATTORNEY GENERAL, AND WE ARE FULLY CONSCIOUS OF THE
PROBLEMS INCIDENT TO DUAL NATIONALITY AND OF THE DEPARTMENTAL DESIRE TO
LIMIT THEM, BUT WE ARE COMPELLED TO AGREE WITH THE COURT OF APPEALS IN
THE INSTANT CASE THAT THE CONCLUSIONS OF THAT OPINION ARE NOT
ADEQUATELY SUPPORTED AND ARE OPPOSED TO THE ESTABLISHED PRINCIPLES
WHICH SHOULD GOVERN THE DISPOSITION OF THIS CASE.  FN31 

NOR DO WE THINK THAT RECENT PRIVATE ACTS OF CONGRESS  FN32  FOR THE
RELIEF OF NATIVE CITIZENS WHO HAVE BEEN THE SUBJECT OF ADMINISTRATIVE
ACTION DENYING THEIR RIGHTS OF CITIZENSHIP, CAN BE REGARDED AS THE
EQUIVALENT OF AN ACT OF CONGRESS PROVIDING THAT PERSONS IN THE
SITUATION OF THE RESPONDENT HERE HAVE LOST THE AMERICAN CITIZENSHIP
WHICH THEY ACQUIRED AT BIRTH AND HAVE SINCE DULY ELECTED TO RETAIN.  NO
SUCH STATUTE HAS BEEN ENACTED. 

WE CONCLUDE THAT RESPONDENT HAS NOT LOST HER CITIZENSHIP IN THE
UNITED STATES AND IS ENTITLED TO ALL THE RIGHTS AND PRIVILEGES OF THAT
CITIZENSHIP. 

FIFTH.  THE CROSS PETITION OF MISS ELG, UPON WHICH CERTIORARI WAS
GRANTED IN NO. 455, IS ADDRESSED TO THE PART OF THE DECREE BELOW WHICH
DISMISSED THE BILL OF COMPLAINT AS AGAINST THE SECRETARY OF STATE.  THE
DISMISSAL WAS UPON THE GROUND THAT THE COURT WOULD NOT UNDERTAKE BY
MANDAMUS TO COMPEL THE ISSUANCE OF A PASSPORT OR CONTROL BY MEANS OF A
DECLARATORY JUDGMENT THE DISCRETION OF THE SECRETARY OF STATE.  BUT THE
SECRETARY OF STATE, ACCORDING TO THE ALLEGATION OF THE BILL OF
COMPLAINT, HAD REFUSED TO ISSUE A PASSPORT TO MISS ELG "SOLELY ON THE
GROUND THAT SHE HAD LOST HER NATIVE BORN AMERICAN CITIZENSHIP."  THE
COURT BELOW, PROPERLY RECOGNIZING THE EXISTENCE OF AN ACTUAL
CONTROVERSY WITH THE DEFENDANTS (AETNA LIFE INS. CO. V. HAWORTH, 300
U.S. 227), DECLARED MISS ELG "TO BE A NATURAL BORN CITIZEN OF THE
UNITED STATES," AND WE THINK THAT THE DECREE SHOULD INCLUDE THE
SECRETARY OF STATE AS WELL AS THE OTHER DEFENDANTS.  THE DECREE IN THAT
SENSE WOULD IN NO WAY INTERFERE WITH THE EXERCISE OF THE SECRETARY'S
DISCRETION WITH RESPECT TO THE ISSUE OF A PASSPORT BUT WOULD SIMPLY
PRECLUDE THE DENIAL OF A PASSPORT ON THE SOLE GROUND THAT MISS ELG HAD
LOST HER AMERICAN CITIZENSHIP. 

THE DECREE WILL BE MODIFIED ACCORDINGLY SO AS TO STRIKE OUT THAT
PORTION WHICH DISMISSES THE BILL OF COMPLAINT AS TO THE SECRETARY OF
STATE, AND SO AS TO INCLUDE HIM IN THE DECLARATORY PROVISION OF THE
DECREE, AND AS SO MODIFIED THE DECREE IS AFFIRMED.  MODIFIED AND
AFFIRMED. 

FN1  OPPENHEIM'S INTERNATIONAL LAW, VOL. 1, SEC. 308; MOORE,
INTERNATIONAL LAW DIGEST, VOL. III, P. 518; HYDE, INTERNATIONAL LAW,
VOL. I, SEC. 372; FLOURNOY, DUAL NATIONALITY AND ELECTION, 30 YALE LAW
JOURNAL, 546; BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD, SEC.
253; VAN DYNE, CITIZENSHIP OF THE UNITED STATES, P. 25; FENWICK,
INTERNATIONAL LAW, P. 165. 

FN2  HYDE, OP. CIT., SECS. 374, 375; BORCHARD, OP. CIT., SEC. 259;
VAN DYNE, OP. CIT., PP. 25-31; MOORE, INT. LAW DIG., VOL. III, PP. 532
551. 

FN3  MOORE, INT. LAW DIG., VOL. III, P. 543. 

FN4  MOORE, INT. LAW.  DIG., VOL. III, P. 544. 

FN5  FOREIGN RELATIONS, 1888, PT. 2, P. 1341.  SEE, ALSO, MR. BAYARD,
SECRETARY OF STATE TO MR. MCLANE (1888), TO COUNT SPONNECK, DANISH
MINISTER (1888); MOORE, INT. LAW DIG., VOL. III, P. 548; MR. OLNEY,
SECRETARY OF STATE, TO MR. MATERNE, 1896; MOORE, INT. LAW DIG., VOL.
III, P. 542; UNITED STATES EX REL. SCIMECA V. HUSBAND, 6 F.2D 957,
958. 

FN6  FOREIGN RELATIONS, 1906, P. 657.  SEE, ALSO, "COMPILATION OF
CERTAIN DEPARTMENTAL CIRCULARS" RELATING TO CITIZENSHIP, ETC., ISSUED
BY DEPARTMENT OF STATE, 1925, CONTAINING INSTRUCTIONS TO DIPLOMATIC AND
CONSULAR OFFICERS UNDER DATE OF NOVEMBER 24, 1923, PP. 118, 121, 122;
UNITED STATES EX REL. BAGLIVO V. DAY, 28 F.2D 44. 

FN7  SEE ALSO, MR. UHL, ACTING SECRETARY OF STATE TO MR. RUDOLPH, MAY
22, 1895, 202 MS. DOM.  LET.  298; MOORE, INT. LAW DIG., VOL. III, P.
534. 

FN8  15 STAT. 223. 

FN9  VAN DYNE, OP. CIT., P. 269; BORCHARD, OP. CIT., SEC. 315; HYDE,
OP. CIT., SEC. 376. 

FN10  17 STAT. 809. 

FN11  NORTH GERMAN CONFEDERATION, 1868, 15 STAT. 615; BAVARIA, 1868,
15 STAT. 661; BADEN, 1868, 16 STAT. 731; WURTTEMBERG, 1868, 16 STAT.
735; HESSE, 1868, 16 STAT. 743; BELGIUM, 1868, 16 STAT. 747; GREAT
BRITAIN, 1870, 16 STAT. 775; AUSTRIA-HUNGARY, 1870, 17 STAT. 833;
DENMARK, 1872, 17 STAT. 941.  SEE FLOURNOY AND HUDSON, NATIONALITY
LAWS, PP. 661-673; MOORE, INT. LAW DIG., VOL. III, P. 358. 

FN12  THE TREATY PROVIDES: 

"THE PRESIDENT OF THE UNITED STATES OF AMERICA AND HIS MAJESTY THE
KING OF SWEDEN AND NORWAY, LED BY THE WISH TO REGULATE THE CITIZENSHIP
OF THOSE PERSONS WHO EMIGRATE FROM THE UNITED STATES OF AMERICA TO
SWEDEN AND NORWAY AND THEIR DEPENDENCIES AND TERRITORIES, AND FROM
SWEDEN AND NORWAY TO THE UNITED STATES OF AMERICA, HAVE RESOLVED TO
TREAT ON THIS SUBJECT, AND HAVE FOR THAT PURPOSE APPOINTED
PLENIPOTENTIARIES TO CONCLUDE A CONVENTION,  ...  WHO HAVE AGREED TO
AND SIGNED THE FOLLOWING ARTICLES:    "ARTICLE I. CITIZENS OF THE
UNITED STATES OF AMERICA WHO HAVE RESIDED IN SWEDEN OR NORWAY FOR A
CONTINUOUS PERIOD OF AT LEAST FIVE YEARS, AND DURING SUCH RESIDENCE
HAVE BECOME AND ARE LAWFULLY RECOGNIZED AS CITIZENS OF SWEDEN OR
NORWAY, SHALL BE HELD BY THE GOVERNMENT OF THE UNITED STATES TO BE
SWEDISH OR NORWEGIAN CITIZENS, AND SHALL BE TREATED AS SUCH. 

"RECIPROCALLY, CITIZENS OF SWEDEN OR NORWAY WHO HAVE RESIDED IN THE
UNITED STATES OF AMERICA FOR A CONTINUOUS PERIOD OF AT LEAST FIVE
YEARS, AND DURING SUCH RESIDENCE HAVE BECOME NATURALIZED CITIZENS OF
THE UNITED STATES, SHALL BE HELD BY THE GOVERNMENT OF SWEDEN AND NORWAY
TO BE AMERICAN CITIZENS, AND SHALL BE TREATED AS SUCH. 

"THE DECLARATION OF AN INTENTION TO BECOME A CITIZEN OF ONE OR THE
OTHER COUNTRY HAS NOT FOR EITHER PARTY THE EFFECT OF CITIZENSHIP
LEGALLY ACQUIRED. 

     .         .         .       .         . 

"ARTICLE III.  IF A CITIZEN OF THE ONE PARTY, WHO HAS BECOME A
RECOGNIZED CITIZEN OF THE OTHER PARTY, TAKES UP HIS ABODE ONCE MORE IN
HIS ORIGINAL COUNTRY AND APPLIES TO BE RESTORED TO HIS FORMER
CITIZENSHIP, THE GOVERNMENT OF THE LAST-NAMED COUNTRY IS AUTHORIZED TO
RECEIVE HIM AGAIN AS A CITIZEN ON SUCH CONDITIONS AS THE SAID
GOVERNMENT MAY THINK PROPER." 

THE PROTOCOL CONTAINING "THE FOLLOWING OBSERVATIONS, MORE EXACTLY
DEFINING AND EXPLAINING THE CONTENTS" OF THE CONVENTION PROVIDES: 

"I.  RELATING TO THE FIRST ARTICLE OF THE CONVENTION. 

"IT IS UNDERSTOOD THAT IF A CITIZEN OF THE UNITED STATES OF AMERICA
HAS BEEN DISCHARGED FROM HIS AMERICAN CITIZENSHIP, OR, ON THE OTHER
SIDE, IF A SWEDE OR A NORWEGIAN HAS BEEN DISCHARGED FROM HIS SWEDISH OR
NORWEGIAN CITIZENSHIP, IN THE MANNER LEGALLY PRESCRIBED BY THE
GOVERNMENT OF HIS ORIGINAL COUNTRY, AND THEN IN THE OTHER COUNTRY IN A
RIGHTFUL AND PERFECTLY VALID MANNER ACQUIRES CITIZENSHIP, THEN AN
ADDITIONAL FIVE YEARS' RESIDENCE SHALL NO LONGER BE REQUIRED; BUT A
PERSON WHO HAS IN THAT MANNER BEEN RECOGNIZED AS A CITIZEN OF THE OTHER
COUNTRY SHALL, FROM THE MOMENT THEREOF, BE HELD AND TREATED AS A
SWEDISH OR NORWEGIAN CITIZEN, AND, RECIPROCALLY, AS A CITIZEN OF THE
UNITED STATES. 

     .         .         .         .     . 

"III.  RELATING TO THE THIRD ARTICLE OF THE CONVENTION. 

"IT IS FURTHER AGREED THAT IF A SWEDE OR NORWEGIAN, WHO HAS BECOME A
NATURALIZED CITIZEN OF THE UNITED STATES, RENEWS HIS RESIDENCE IN
SWEDEN OR NORWAY WITHOUT THE INTENT TO RETURN TO AMERICA, HE SHALL BE
HELD BY THE GOVERNMENT OF THE UNITED STATES TO HAVE RENOUNCED HIS
AMERICAN CITIZENSHIP. 

"THE INTENT NOT TO RETURN TO AMERICA MAY BE HELD TO EXIST WHEN THE
PERSON SO NATURALIZED RESIDES MORE THAN TWO YEARS IN SWEDEN OR
NORWAY." 

FN13  COMPARE SECRETARY HAY TO MR. HARRIS, FOREIGN RELATIONS, 1900,
P. 13. 

FN14  WHILE THE NATIONALITY LAW OF SWEDEN IS NOT TO BE REGARDED AS
CONTROLLING UNLESS THE TREATY MAKES IT SO - WHICH WE HAVE FOUND IS NOT
THE CASE - IT MAY BE OBSERVED THAT IT IS NOT CLEAR THAT THE LAW OF
SWEDEN WOULD OPERATE SO AS TO PRECLUDE RECOGNITION THAT RESPONDENT IS A
CITIZEN OF THE UNITED STATES.  SEE THE SWEDISH LAW OF 7 MAY, 1909, ART.
8.  THAT, HOWEVER, IS A QUESTION OF FOREIGN LAW WHICH WE FIND IT
UNNECESSARY TO ATTEMPT TO DETERMINE. 

FN15  SEE NOTE 10. 

FN16  15 STAT. 615.  SEE TERLINDEN V. AMES, 184 U.S. 270, 283, 284. 

FN17  15 OP. ATTYS.  GEN'L. 15, 17, 18. 

FN18  MOORE, INT. LAW DIG., VOL. III, P. 543. 

FN19  17 STAT. 941. 

FN20  MOORE, INT. LAW DIG., VOL. III, P. 544. 

FN21  MR. WHARTON, ACTING SECRETARY OF STATE, TO COUNT SPONNECK,
DANISH MINISTER (1890); MOORE, INT. LAW DIG., P. 715. 

FN22  SECRETARY SHERMAN TO MR. GRIP, SWEDISH MINISTER, JUNE 15, 1897;
MOORE, INT. LAW DIG., VOL. III, P. 472; 8 MS., NOTES TO SWEDEN, 58. 

FN23  FOREIGN RELATIONS, 1906, P. 657. 

FN24  34 STAT. 1228; 8 U.S.C. 17. 

FN25  SECTIONS 5 AND 6 OF THIS STATUTE SHOULD ALSO BE NOTED AS THEY
CONTAIN PROVISIONS APPLICABLE TO MINOR CHILDREN.  THEY ARE AS FOLLOWS: 

"SEC. 5.  THAT A CHILD BORN WITHOUT THE UNITED STATES OF ALIEN
PARENTS SHALL BE DEEMED A CITIZEN OF THE UNITED STATES BY VIRTUE OF THE
NATURALIZATION OF OR RESUMPTION OF AMERICAN CITIZENSHIP BY THE PARENT:
PROVIDED, THAT SUCH NATURALIZATION OR RESUMPTION TAKES PLACE DURING THE
MINORITY OF SUCH CHILD:  AND PROVIDED FURTHER, THAT THE CITIZENSHIP OF
SUCH MINOR CHILD SHALL BEGIN AT THE TIME SUCH MINOR CHILD BEGINS TO
RESIDE PERMANENTLY IN THE UNITED STATES. 

"SEC. 6.  THAT ALL CHILDREN BORN OUTSIDE THE LIMITS OF THE UNITED
STATES WHO ARE CITIZENS THEREOF IN ACCORDANCE WITH THE PROVISIONS OF
THE UNITED STATES AND WHO CONTINUE TO RESIDE OUTSIDE THE UNITED STATES
SHALL, IN ORDER TO RECEIVE THE PROTECTION OF THIS GOVERNMENT, BE
REQUIRED UPON REACHING THE AGE OF EIGHTEEN YEARS TO RECORD AT AN
AMERICAN CONSULATE THEIR INTENTION TO BECOME RESIDENTS AND REMAIN
CITIZENS OF THE UNITED STATES AND SHALL BE FURTHER REQUIRED TO TAKE THE
OATH OF ALLEGIANCE TO THE UNITED STATES UPON ATTAINING THEIR
MAJORITY." 

FN26  SEE NOTE 25. 

FN27  "COMPILATION OF CERTAIN DEPARTMENTAL CIRCULARS" RELATING TO
CITIZENSHIP, ETC., ISSUED BY DEPARTMENT OF STATE, 1925, CONTAINING
INSTRUCTIONS TO DIPLOMATIC AND CONSULAR OFFICERS UNDER DATE OF NOVEMBER
24, 1923, PP. 118, 121, 122. 

FN28  THAT THERE HAD BEEN A CHANGE IS FRANKLY STATED IN THE
COMMUNICATION (A COPY OF WHICH IS ANNEXED TO THE COMPLAINT) ADDRESSED
BY THE AMERICAN CONSUL AT GOTEBORG, SWEDEN, TO THE RESPONDENT'S FATHER
UNDER DATE OF OCTOBER 29, 1935. 

FN29  36 OP. ATTYS.  GEN'L, P. 535. 

FN30  CITED AS OF JUNE 14, 1871, THE DATE OF THE EXCHANGE OF
RATIFICATIONS. 

FN31  THE SAME MAY BE SAID OF THE OPINION OF THE CIRCUIT COURT OF
APPEALS OF THE NINTH CIRCUIT IN UNITED STATES V. REID, 73 F.2D
153(CERTIORARI DENIED UPON THE GROUND THAT THE APPLICATION WAS NOT MADE
WITHIN THE TIME PROVIDED BY LAW, 299 U.S. 544), SO FAR AS IT IS URGED
BY PETITIONERS AS APPLICABLE TO THE FACTS OF THE INSTANT CASE. 

FN32  ACT OF JULY 13, 1937, 50 STAT. PT. 2, P. 1030; ACT OF JUNE 25,
1938(PRIVATE NO. 751, 75TH CONG., 3D SESS.). 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :






















TOLEDO CO. V. STANDARD PARTS, 307 U.S. 350 


NO. 166.  ARGUED MARCH 1, 1939.  - DECIDED MAY 29, 1939.  - 93 F.2D 336,
AFFIRMED.  - 99 F.2D 806, REVERSED. 


1.  PATENT NO. 1,732,708, CLAIMS 1, 2, 5-7, 11-13, TO WITHROW AND
CLOSE, RELATING TO A BURNER FOR OUTDOOR WARNING SIGNALS, DIMINISHING
LIABILITY OF FLAME EXTINGUISHMENT BY WIND AND RAIN, HELD INVALID FOR
WANT OF INVENTION.  P. 356. 

2.  AGGREGATION OF TWO OLD DEVICES, PRODUCTIVE OF NO NEW JOINT
FUNCTION, IS NOT INVENTION.  P. 356. 

3.  EVIDENCE OF UNSUCCESSFUL EFFORTS UPON THE PART OF A FEW OTHERS,
NOT FAMILIAR WITH THE PRIOR ART, TO ATTAIN THE RESULT ACHIEVED BY THE
PATENTED DEVICE; OF ACCEPTANCE OF LICENSES BY MANUFACTURERS NOT SHOWN
TO HAVE MADE WIDE OR SUCCESSFUL USE OF IT; AND EVIDENCE OF ITS UTILITY
AND COMMERCIAL SUCCESS,  - HELD INSUFFICIENT TO ESTABLISH NOVELTY IN
THIS CASE.  P. 356. 

TOLEDO PRESSED STEEL CO. V. STANDARD PARTS, INC.* 

*TOGETHER WITH NO. 167, TOLEDO PRESSED STEEL CO. V. HUEBNER SUPPLY
CO., ALSO ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
SIXTH CIRCUIT; AND NO. 603, MONTGOMERY WARD & CO. V. TOLEDO PRESSED
STEEL CO., ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 305 U.S. 667; 306 ID. 623, TO REVIEW THREE DECREES IN
INFRINGEMENT SUITS.  IN THE FIRST TWO SUITS, WHICH INVOLVED THE SAME
CLAIMS, RELIEF WAS DENIED BY THE COURT BELOW.  IN THE THIRD SUIT, WHICH
INVOLVED SOME OF THOSE CLAIMS AND SOME OTHERS IN ADDITION, RELIEF WAS
GRANTED. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THESE ARE PATENT INFRINGEMENT SUITS BROUGHT BY THE TOLEDO PRESSED
STEEL COMPANY, OWNER OF WITHROW AND CLOSE PATENT NO. 1,732,708, ISSUED
OCTOBER 22, 1929, FOR A BURNER FOR USE IN OUTDOOR WARNING SIGNALS SUCH
AS CONSTRUCTION TORCHES AND TRUCK FLARES.  THE FIRST TWO SUITS WERE
BROUGHT IN THE FEDERAL COURT FOR THE NORTHERN DISTRICT OF OHIO.  IT
FILED AN OPINION INDICATING THE FACTS THAT IT DEEMED ESTABLISHED BY THE
EVIDENCE AND WITHOUT FORMAL FINDINGS HELD THE PATENT VALID AND
INFRINGED BY THE BOLSER AND KARI-KEEN FLARES RESPECTIVELY SOLD BY THE
DEFENDANTS.  THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT HELD
THE PATENT INVALID FOR WANT OF INVENTION AND REVERSED.  93 F.2D 336. 
THE OTHER SUIT WAS BROUGHT IN THE FEDERAL COURT FOR THE EASTERN
DISTRICT OF NEW YORK.  IT MADE FINDINGS AS REQUIRED BY RULE 70 1/2,
HELD PLAINTIFF'S PATENT INVALID, AND DISMISSED THE BILL.  THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT HELD THE PATENT VALID AND
INFRINGED BY THE ANTHES FLARE SOLD BY THE DEFENDANT, AND REVERSED.  99
F.2D 806. 

IN THE INTEREST OF PLAINTIFF, SEEKING TO UPHOLD THE PATENT PRIMA
FACIE VALID, AND OF THE PUBLIC, LIABLE TO EXCLUSION FROM MANUFACTURE,
USE, OR SALE IN VIRTUE OF THE RIGHT IT PURPORTS TO CONFER, FINAL
ADJUDICATION AS TO VALIDITY IS OF PRIMARY IMPORTANCE.  THE PATENT IN
SUIT RELATES TO TORCHES FOR GUARDING STREET OBSTRUCTIONS AND TO FLARES,
WHICH ARE LARGE TORCHES, FOR WARNING THAT VEHICLES ARE STOPPED ON THE
ROAD. 

FORMERLY, RED LANTERNS WERE MUCH USED.  BUT, AFTER GENERAL USE OF
AUTOMOBILES HAVING RED TAIL LIGHTS TO SOME EXTENT RESEMBLING THEM, THEY
DID NOT SERVE SO SATISFACTORILY AS BEFORE.  OPEN-FLAME TORCHES CAME TO
BE EXTENSIVELY EMPLOYED.  THE MOTION OF THE LUMINESCENT FLAME
DISTINGUISHES THEM FROM OTHER SIGNALS.  BUT THERE WERE COMPLAINTS THAT
THEY WERE SOMETIMES EXTINGUISHED BY WIND OR RAIN. 

OPEN-FLAME TORCHES IN USE FOR SOME YEARS BEFORE PATENTEES' CLAIMED
INVENTION, INCLUDED THOSE WHICH WERE BOMB-SHAPED, FLAT-BOTTOMED,
WEIGHTED FOR STABILITY, AND WITH AN OPENING IN THE TOP FOR A WICK. 
THAT TYPE WAS WELL KNOWN, AT LEAST AFTER THE PATENT COVERING IT,
MCCLOSKEY NO. 1,610,301, WAS ISSUED DECEMBER 14, 1926; IN 1929 IT WAS
HELD INVALID BY THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT FOR
LACK OF INVENTION AND BECAUSE ANTICIPATED.  MCCLOSKEY V. TOLEDO PRESSED
STEEL CO., 30 F.2D 12.  PLAINTIFF HAD A LARGE BUSINESS IN THE
MANUFACTURE AND SALE OF TORCHES, INCLUDING THE MCCLOSKEY TYPE.  IT
ADVERTISED THAT THEY WOULD BURN IN ALL KINDS OF WEATHER; HAVING
RECEIVED MANY COMPLAINTS OF EXTINGUISHMENT BY WIND AND RAIN, PATENTEES,
RESPECTIVELY PLAINTIFF'S PRESIDENT AND VICE PRESIDENT, SET ABOUT
PRODUCING SOMETHING TO MAKE THEM DEPENDABLE AND TO SERVE AS
REPRESENTED.  WITHIN A YEAR, BUT AFTER EXPERIMENTS, TRIALS, AND
FAILURES, THEY BROUGHT FORWARD THE PATENTED DEVICE. 

THE SPECIFICATION STATES THAT THE CLAIMED INVENTION PARTICULARLY
RELATES TO DEVICES TO INCREASE EFFICIENCY AND TO PREVENT FLAME
EXTINGUISHMENT.  IT DECLARES THAT THE OBJECTS OF THE INVENTION ARE TO
PROVIDE A SIMPLE ATTACHMENT TO ATTAIN THOSE ENDS AND A BURNER SO
CONSTRUCTED THAT LIABILITY OF EXTINGUISHMENT BY WIND OR RAIN WILL BE
REDUCED TO A MINIMUM.  IT FURTHER SAYS THAT WITH THE DESCRIBED
CONSTRUCTION AND ARRANGEMENT CONSUMPTION OF OIL AND WICK IS MATERIALLY
DECREASED. 

THE CLAIMS INVOLVED ARE PRINTED IN THE MARGIN.  FN1  CONSIDERED
TOGETHER, UNOBSCURED BY ARTIFICIALITY IN THEIR STATEMENT, IT FAIRLY MAY
BE SAID THAT THEY SHOW THAT ALL THAT THE PATENTEES DID WAS TO PUT OVER
THE WICK OF A TORCH, WELL KNOWN IN THE ART, AN INVERTED METAL CUPLIKE
CAP HAVING HOLES IN ITS SIDES, SOME TO LET IN AIR FOR COMBUSTION AND
OTHERS TO LET OUT FLAME.  THE CAP WAS ALSO WELL KNOWN AND HAD BEEN USED
AS A PART OF OTHER DEVICES FOR THE PROTECTION OF KEROSENE AND OTHER
FLAMES. 

A NUMBER OF DEVICES PATENTED EARLIER THAN PLAINTIFF'S INCLUDED THE
ELEMENTS ESSENTIAL TO ITS BURNER. 

BILLINGHAM PATENT, NO. 191,031, ISSUED AUGUST 15, 1876, RELATED TO
TORCHES FOR LIGHTING STREET-LAMPS.  IT SHOWS A WICK-TYPE TORCH WITH A
TUBE-LIKE CAP HAVING HOLES, SOME TO LET IN AIR, AND OTHERS TO LET THE
FLAME COME OUT.  THIS CAP, IMPERFORATE AT THE TOP, SERVES TO PREVENT
EXTINGUISHMENT OF THE FLAME BY WIND OR RAIN.  ALMOND PATENT, NO.
193,796, ISSUED AUGUST 7, 1877, RELATED TO VAPOR BURNERS FOR HEATING. 
THE DEVICE, SOME PARTS DETACHED, SERVES AS AN ILLUMINATING LAMP
CONSISTING OF A BODY, A WICK HOLDER, A CAP, A FLANGE HAVING A RIM
SUPPORTING A TUBE CLOSED AT THE TOP.  HOLES ARE IN THE RIM TO ADMIT
AIR; LARGER ONES IN THE TUBE ARE TO LET THE FLAMES OUT.  RUTZ PATENT,
NO. 1,101,146, ISSUED JUNE 23, 1914, COVERS A FLASH IGNITER FOR GAS
STOVE BURNERS.  IT HAS A CAP TO GUARD THE FLAME AND ADAPTED TO EMIT
FLAMES EXTENDING FROM THE IGNITER TO THE GAS BURNERS TO BE LIGHTED. 
THIS CAP, LIKE PLAINTIFF'S, HAS A SUPPORTING AND HEAT RECEIVING FLANGE,
A MEANS TO ENCLOSE THE SPACE ABOVE THE FLANGE AND A RESTRICTED ENTRANCE
TO ADMIT AIR FOR COMBUSTION.  THE RECORD SHOWS THAT THE RUTZ HOOD HAS
BEEN USED TO ACHIEVE THE IDENTICAL RESULTS ATTAINED BY PLAINTIFF'S
DEVICE. 

THERE ARE OTHER PATENTS, ISSUED BEFORE PATENTEES DEVELOPED THE
STRUCTURE IN SUIT, THAT MAY BE REFERRED TO AS RELEVANT TO THE ISSUE OF
INVENTION IN THIS CASE.  EXAMPLES OF THESE ARE CITED IN THE MARGIN. 
FN2 

THE TORCH BODY WAS OLD IN THE ART TO WHICH IT BELONGED.  THE CAP, AS
PART OF DEVICES USED IN OTHER FIELDS, WAS OLD AND USEFUL TO PREVENT
EXTINGUISHMENT OF FLAMES BY WIND OR RAIN AND TO PERMIT FLAMES TO EXTEND
THROUGH HOLES TO THE OPEN AIR.  THE PROBLEM PATENTEES SET FOR
THEMSELVES WAS TO PREVENT EXTINGUISHMENT WHILE PRESERVING USEFULNESS OF
THE FLAMES AS WARNING SIGNALS.  THEY SOLVED IT BY MERELY BRINGING
TOGETHER THE TORCH AND CAP.  AS BEFORE, THE TORCH CONTINUED TO PRODUCE
A LUMINESCENT, UNDULATING FLAME, AND THE CAP CONTINUED TO LET IN AIR
FOR COMBUSTION, TO PROTECT THE FLAME FROM WIND AND RAIN AND TO ALLOW IT
TO EMERGE AS A WARNING SIGNAL.  THEY PERFORMED NO JOINT FUNCTION.  EACH
SERVED AS SEPARATELY IT HAD DONE.  THE PATENTED DEVICE RESULTS FROM
MERE AGGREGATION OF TWO OLD DEVICES, AND NOT FROM INVENTION OR
DISCOVERY.  HAILES V. VAN WORMER, 20 WALL.  353, 368.  RECKENDORFER V.
FABER, 92 U.S. 347, 357.  LINCOLN CO. V. STEWART-WARNER CORP., 303 U.S.
545, 549-50.  ON THE RECORDS BEFORE US, IT IS IMPOSSIBLE TO HOLD THAT
PRODUCTION OF THE PATENTED DEVICE REQUIRED MORE THAN MECHANICAL SKILL
AND ORIGINALITY ATTRIBUTABLE TO THOSE FAMILIAR WITH THE ART OF
PROTECTING FLAMES OF KEROSENE AND OTHER BURNERS.  ALTOONA THEATRES V.
TRI-ERGON CORP., 294 U.S. 477, 486; POWERS-KENNEDY CO. V. CONCRETE CO.,
282 U.S. 175, 186; CONCRETE APPLIANCES CO. V. GOMERY, 269 U.S. 177,
184, 185; HOLLISTER V. BENEDICT & BURNHAM MFG. CO., 113 U.S. 59, 72
73. 

AS EVIDENCE IN ITS FAVOR ON THE QUESTION OF INVENTION, PLAINTIFF
CITES EFFORTS TO FIND SOMETHING USEFUL TO PROTECT OPEN-FLAME TORCHES
FROM EXTINGUISHMENT BY WIND OR RAIN PUT FORTH BY ONE ENGAGED IN
OPERATION OF A STREET RAILWAY AND BY ANOTHER EMPLOYED BY A MANUFACTURER
OF LANTERNS.  BUT IT DOES NOT APPEAR THAT EITHER WAS FAMILIAR WITH THE
RELEVANT PRIOR ART. NOR IS THERE ANY EVIDENCE OF GENERAL OR WIDESPREAD
EFFORT TO SOLVE THE PROBLEM HERE INVOLVED.  THERE IS NOTHING THAT TENDS
TO RAISE WHAT PATENTEES DID TO THE REALM OF INVENTION.  SEE PARAMOUNT
CORP. V. TRI-ERGON CORP., 294 U.S. 464, 476.  PLAINTIFF ALSO BRINGS
FORWARD THE FACT THAT SOME MANUFACTURERS, INCLUDING THREE SUBSTANTIAL
ONES, HAVE TAKEN LICENSES UNDER ITS PATENT.  IT DOES NOT APPEAR THAT
THESE LICENSEES HAVE MADE WIDE OR SUCCESSFUL USE OF THE DEVICE.  LACK
OF NOVELTY BEING CLEARLY SHOWN, ACCEPTANCE OF LICENSE UNDER THE
CIRCUMSTANCES OF THIS CASE, IS WITHOUT WEIGHT.  THROPP'S SONS CO. V.
SEIBERLING, 264 U.S. 320, 330.  JOHN T. RIDDELL V. ATHLETIC SHOE CO.,
75 F.2D 93, 95.  AND SIMILARLY WITHOUT SIGNIFICANCE ON THE QUESTION OF
NOVELTY IS THE FACT THAT, AS PLAINTIFF CLAIMS, UTILITY RESULTED AND
COMMERCIAL SUCCESS FOLLOWED FROM WHAT PATENTEES DID.  FIRESTONE TIRE &
RUBBER CO. V. U.S. RUBBER CO., 79 F.2D 948, 954. 

IT RESULTS THAT THE DECREES IN NOS. 166 AND 167 MUST BE AFFIRMED, AND
THAT IN NO. 603 MUST BE REVERSED.  NOS. 166 AND 167, AFFIRMED.  NO.
603, REVERSED. 

FN1 IN ALL THE CASES, CLAIMS 2, 5, 11 AND 12 ARE INVOLVED.  IN NOS.
166 AND 167, CLAIM 13 IS ALSO INVOLVED.  IN NO. 167, CLAIMS 1, 6 AND 7
ARE ALSO INVOLVED. 

"1.  IN A DEVICE OF THE CLASS DESCRIBED, A TORCH BODY HAVING AN
OPENING AT ITS UPPER END, A WICK-RECEIVING TUBE EXTENDING INTO SAID
OPENING, AND A CAP DISPOSED ON THE OUTER SIDE OF SAID TORCH BODY TO
ENCLOSE THE OUTER END OF THE WICK, SAID CAP HAVING AN IMPERFORATE UPPER
WALL, LATERAL FLAME OPENINGS, AND AIR OPENINGS BELOW THE FLAME
OPENINGS. 

"2.  IN A DEVICE OF THE CLASS DESCRIBED, A TORCH BODY HAVING AN
OPENING FOR A WICK, AND A FLAME GUARD FOR SAID WICK MOUNTED ON THE
OUTSIDE OF SAID TORCH BODY, SAID GUARD INCLUDING A CAP PROVIDED WITH AN
IMPERFORATE TOP WALL AND LATERAL FLAME OPENINGS ADAPTED TO EMIT A
LUMINESCENT FLAME, AND AIR PORTS. 

"5. IN A DEVICE OF THE CLASS DESCRIBED, A CONSTRUCTION TORCH HAVING
AN OPENING IN ITS UPPER END FOR A WICK, MEANS TO HOLD THE WICK IN
PLACE, AND A GUARD FITTING OVER THE OUTER END OF THE WICK BUT SPACED
FROM THE SIDES THEREOF, SAID GUARD HAVING AN IMPERFORATE TOP WALL AND
SIDE FLAME AND AIR OPENINGS. 

"6.  IN A DEVICE OF THE CLASS DESCRIBED, A TORCH BODY HAVING A
WICKOPENING, A TUBE FOR RECEIVING THE WICK AND ADAPTED TO EXTEND INSIDE
OF THE TORCH BODY, AN OUTWARDLY EXTENDING FLANGE IN THE REGION OF SAID
WICK-OPENING, AND A CAP CONNECTED TO SAID FLANGE AND HAVING AN
IMPERFORATE TOP WALL, SAID CAP HAVING A FLAME OPENING ADJACENT ITS
OUTER END AND AN AIR PORT BENEATH SAID FLAME OPENING. 

"7.  IN A DEVICE OF THE CLASS DESCRIBED, A TORCH BODY HAVING A
WICKOPENING, A CAP FOR ENCLOSING THE OUTER END OF THE WICK BUT SPACED
FROM THE SIDES THEREOF, AN IMPERFORATE END WALL FOR SAID CAP, SAID CAP
HAVING A SERIES OF FLAME OPENINGS AND A SERIES OF AIR PORTS BENEATH THE
FLAME OPENINGS, AND A DISC ADAPTED TO EMBRACE THE WICK AND HAVING A
FLANGED UPPER PORTION DISPOSED IN THE REGION OF SAID AIR PORTS. 

"11.  A BURNER FOR A CONSTRUCTION TORCH ADAPTED TO EMIT A LUMINESCENT
FLAME AND COMPRISING A WICK HOLDER HAVING A PORTION IN CONTACT WITH THE
WICK AND A SUPPORTING AND HEAT-RECEIVING FLANGE, AND MEANS ENCLOSING A
SPACE ABOVE SAID FLANGE AND SURROUNDING THE WICK, EXCEPT FOR PROVISION
FOR LATERAL EXIT OF FLAME AND RESTRICTED ENTRANCE OF AIR FOR
COMBUSTION. 

"12.  A BURNER FOR A CONSTRUCTION TORCH ADAPTED TO EMIT A LUMINESCENT
FLAME AND COMPRISING A WICK HOLDER HAVING A PORTION IN CONTACT WITH THE
WICK AND A LATERAL FLANGE, AND A CAP ENCLOSING AND SPACED FROM THE END
OF THE WICK AND HAVING AN IMPERFORATE TOP AND PROVISION FOR LATERAL
EXIT OF FLAME AND ENTRANCE OF AIR, AND THE BOTTOM OF THE CAP BEING IN
HEAT CONDUCTING RELATION TO SAID FLANGE. 

"13.  A BURNER FOR A CONSTRUCTION TORCH ADAPTED TO EMIT A LUMINESCENT
FLAME AND COMPRISING A WICK HOLDER HAVING A PORTION IN CONTACT WITH THE
WICK AND A LATERALLY EXTENDING FLANGE AND A CAP OVER THE WICK, THE CAP
HAVING AN IMPERFORATE, DOME-SHAPED TOP WALL, A LATERAL FLAME OPENING
APPROXIMATELY EVEN WITH THE TOP OF THE WICK AND A SMALLER OPENING FOR
THE INLET OF AIR LOWER THAN THE FLAME OPENING AND ABOVE THE LOWER EDGE
OF THE CAP, SAID LOWER EDGE BEING IN HEATTRANSFERRING RELATION TO SAID
FLANGE." 

FN2  BLAKE PATENT, NO. 453,335, JUNE 2, 1891.  HESTON PATENT, NO.
270,587, JANUARY 16, 1883.  REEKIE PATENT, NO. 192,130, JUNE 19, 1877. 
KAHN PATENT, NO. 1,175,527, MARCH 14, 1916. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





CURRY V. MCCANLESS, 307 U.S. 357 


NO. 339.  ARGUED JANUARY 9, 1939.  REARGUED APRIL 28, 1939.  - DECIDED
MAY 29, 1939.  - 174 TENN. 1 - 118 S.W.2D 228, REVERSED. 


1.  DECEDENT, DOMICILED IN TENNESSEE, TRANSFERRED TO A TRUSTEE IN
ALABAMA CERTAIN STOCKS AND BONDS ON SPECIFIC TRUSTS.  THE NET INCOME
WAS TO BE PAID TO HER DURING HER LIFETIME; AND UPON HER DEATH THE
PROPERTY WAS TO BE HELD IN TRUST FOR SPECIFIED BENEFICIARIES.  SHE
RESERVED, HOWEVER, CERTAIN POWERS OVER THE TRUSTEE AND THE HANDLING OF
THE TRUST, AND THE POWER TO DISPOSE OF THE ESTATE AS SHE MIGHT DIRECT
BY WILL.  UNTIL HER DEATH THE TRUST WAS ADMINISTERED BY THE TRUSTEE IN
ALABAMA AND THE PAPER EVIDENCES OF THE INTANGIBLE PROPERTY WERE KEPT
THERE.  UPON HER DEATH, IN TENNESSEE, SHE BEQUEATHED THE TRUST PROPERTY
TO THE SAME TRUSTEE TO BE HELD IN TRUST FOR THE SAME AND OTHER
BENEFICIARIES, IN DIFFERENT AMOUNTS AND BY DIFFERENT ESTATES FROM THOSE
PROVIDED FOR BY THE TRUST INDENTURE.  BY THE WILL SHE APPOINTED A
TENNESSEE EXECUTOR "AS TO ALL PROPERTY WHICH I MAY OWN IN THE STATE OF
TENNESSEE AT THE TIME OF MY DEATH," AND AN ALABAMA EXECUTOR "AS TO ALL
PROPERTY WHICH I MAY OWN IN THE STATE OF ALABAMA AND ALSO AS TO ALL
PROPERTY WHICH I MAY HAVE THE RIGHT TO DISPOSE OF BY LAST WILL AND
TESTAMENT IN SAID STATE."  IT WAS PROBATED AND LETTERS TESTAMENTARY
ISSUED TO THE RESPECTIVE EXECUTORS, IN BOTH STATES. 

HELD THAT EACH OF THE TWO STATES COULD CONSTITUTIONALLY IMPOSE A TAX
ON THE TRANSFER OF THE INTANGIBLES HELD BY THE ALABAMA TRUSTEE BUT
PASSING UNDER THE WILL OF THE DECEDENT, DOMICILED IN TENNESSEE.  PP.
360, 372-373. 

2.  THE OPINION CONSIDERS THE GROUNDS FOR THE DOCTRINE THAT POWER TO
TAX TANGIBLE PROPERTY IS CONFINED TO THE STATE IN WHICH THE PROPERTY IS
LOCATED.  P. 363. 

WHEN WE SPEAK OF THE JURISDICTION TO TAX LAND OR CHATTELS AS BEING
EXCLUSIVELY IN THE STATE WHERE THEY ARE PHYSICALLY LOCATED, WE MEAN NO
MORE THAN THAT THE BENEFIT AND PROTECTION OF LAWS ENABLING THE OWNER TO
ENJOY THE FRUITS OF HIS OWNERSHIP AND THE POWER TO REACH EFFECTIVELY
THE INTERESTS PROTECTED, FOR THE PURPOSE OF SUBJECTING THEM TO PAYMENT
OF A TAX, ARE SO NARROWLY RESTRICTED TO THE STATE IN WHOSE TERRITORY
THE PHYSICAL PROPERTY IS LOCATED AS TO SET PRACTICAL LIMITS TO TAXATION
BY OTHERS.  P. 364. 

3.  RIGHTS IN INTANGIBLE PROPERTY ARE BUT RELATIONSHIPS BETWEEN
PERSONS, WHICH THE LAW RECOGNIZES BY ATTACHING TO THEM CERTAIN
SANCTIONS ENFORCEABLE IN COURTS.  THE POWER OF GOVERNMENT OVER THEM AND
THE PROTECTION WHICH IT GIVES THEM CAN NOT BE EXERTED THROUGH CONTROL
OF A PHYSICAL THING, BUT CAN BE MADE EFFECTIVE ONLY THROUGH CONTROL
OVER AND PROTECTION AFFORDED TO THOSE PERSONS WHOSE RELATIONSHIPS ARE
THE ORIGIN OF THE RIGHTS.  AS SOURCES OF ACTUAL OR POTENTIAL WEALTH -
WHICH IS AN APPROPRIATE MEASURE OF ANY TAX IMPOSED ON OWNERSHIP OR ITS
EXERCISE - THEY CAN NOT BE DISSOCIATED FROM THE PERSONS FROM WHOSE
RELATIONSHIPS THEY ARE DERIVED.  P. 366. 

4.  FROM THE BEGINNING OF OUR CONSTITUTIONAL SYSTEM CONTROL OVER THE
PERSON AT THE PLACE OF HIS DOMICILE AND HIS DUTY THERE, COMMON TO ALL
CITIZENS, TO CONTRIBUTE TO THE SUPPORT OF GOVERNMENT HAVE BEEN DEEMED
TO AFFORD AN ADEQUATE CONSTITUTIONAL BASIS FOR IMPOSING ON HIM A TAX ON
THE USE AND ENJOYMENT OF RIGHTS IN INTANGIBLES MEASURED BY THEIR
VALUE.  P. 366. 

5.  IN CASES WHERE THE OWNER OF INTANGIBLES CONFINES HIS ACTIVITY TO
THE PLACE OF HIS DOMICILE IT HAS BEEN FOUND CONVENIENT TO SUBSTITUTE A
RULE FOR A REASON, BY SAYING THAT HIS INTANGIBLES ARE TAXED AT THEIR
SITUS AND NOT ELSEWHERE, OR, PERHAPS LESS ARTIFICIALLY, BY INVOKING THE
MAXIM MOBILIA SEQUUNTUR PERSONAM.  P. 367. 

6.  BUT WHEN THE TAXPAYER EXTENDS HIS ACTIVITIES WITH RESPECT TO HIS
INTANGIBLES, SO AS TO AVAIL HIMSELF OF THE PROTECTION AND BENEFIT OF
THE LAWS OF ANOTHER STATE, IN SUCH A WAY AS TO BRING HIS PERSON OR
PROPERTY WITHIN THE REACH OF THE TAX GATHERER THERE, THE REASON FOR A
SINGLE PLACE OF TAXATION NO LONGER OBTAINS, AND THE RULE IS NOT EVEN A
WORKABLE SUBSTITUTE FOR THE REASONS WHICH MAY EXIST IN ANY PARTICULAR
CASE TO SUPPORT THE CONSTITUTIONAL POWER OF EACH STATE CONCERNED TO
TAX.  P. 367. 

7.  THE STATE OF DOMICILE IS NOT DEPRIVED, BY THE TAXPAYER'S
ACTIVITIES ELSEWHERE, OF ITS CONSTITUTIONAL JURISDICTION TO TAX, AND
CONSEQUENTLY THERE ARE MANY CIRCUMSTANCES IN WHICH MORE THAN ONE STATE
MAY HAVE JURISDICTION TO IMPOSE A TAX AND MEASURE IT BY SOME OR ALL OF
THE TAXPAYER'S INTANGIBLES.  P. 368. 

8.  SINCE ALABAMA MAY LAWFULLY TAX THE PROPERTY IN THE TRUSTEE'S
HANDS, THE COURT PERCEIVES NO GROUND FOR SAYING THAT THE FOURTEENTH
AMENDMENT FORBIDS THAT STATE TO TAX THE TRANSFER OF IT OR AN INTEREST
IN IT TO ANOTHER MERELY BECAUSE THE TRANSFER WAS EFFECTED BY DECEDENT'S
TESTAMENTARY ACT IN ANOTHER STATE.  P. 370. 

9.  EXERCISE OF THE DECEDENT'S POWER TO DISPOSE OF THE INTANGIBLES
WAS A TAXABLE EVENT IN TENNESSEE.  P. 371. 

10.  IN EFFECTING HER PURPOSES, THE TESTATRIX BROUGHT SOME OF THE
LEGAL INTERESTS WHICH SHE CREATED WITHIN THE CONTROL OF ONE STATE BY
SELECTING A TRUSTEE THERE AND OTHERS WITHIN THE CONTROL OF THE OTHER
STATE BY MAKING HER DOMICILE THERE.  SHE NECESSARILY INVOKED THE AID OF
THE LAW OF BOTH STATES; AND HER LEGATEES, BEFORE THEY CAN SECURE AND
ENJOY THE BENEFITS OF SUCCESSION, MUST INVOKE THE LAW OF BOTH.  P.
372. 

11.  THE PROHIBITION OF THE FOURTEENTH AMENDMENT AGAINST THE TAXATION
OF PROPERTY NOT WITHIN THE TAXING "JURISDICTION" OF A STATE IS NOT TO
BE EXTENDED BY ASCRIBING TO INTANGIBLES IN EVERY CASE A LOCUS FOR
TAXATION IN A SINGLE STATE DESPITE THE CONTROL OVER THEM OR THEIR
TRANSMISSION BY ANY OTHER STATE AND ITS LEGITIMATE INTEREST IN TAXING
THE ONE OR THE OTHER.  THE COURT CAN FIND NOTHING IN THE HISTORY OF THE
FOURTEENTH AMENDMENT AND NO SUPPORT IN REASON, PRINCIPLE, OR AUTHORITY
FOR SAYING THAT IT PROHIBITS EITHER STATE, IN THE CIRCUMSTANCES OF THIS
CASE, FROM LAYING THE TAX.  PP. 373, 372. 

CURRY, STATE TAX COMMISSIONER OF ALABAMA, ET AL. V. MCCANLESS,
COMMISSIONER OF FINANCE AND TAXATION OF TENNESSEE. 

APPEAL FROM THE SUPREME COURT OF TENNESSEE. 

APPEAL TAKEN BY TAXING OFFICIALS OF THE STATE OF ALABAMA FROM A
DECREE OF THE SUPREME COURT OF TENNESSEE DECLARING TRUST PROPERTY IN
ALABAMA DISPOSED OF BY A DECEDENT'S WILL TO BE SUBJECT TO SUCCESSION OR
TRANSFER TAXATION IN TENNESSEE BUT NOT IN ALABAMA.  THIS SUIT WAS
BROUGHT BY THE EXECUTORS IN THE TWO STATES, PRAYING FOR A DECLARATORY
JUDGMENT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS FOR DECISION ARE WHETHER THE STATES OF ALABAMA AND
TENNESSEE MAY EACH CONSTITUTIONALLY IMPOSE DEATH TAXES UPON THE
TRANSFER OF AN INTEREST IN INTANGIBLES HELD IN TRUST BY AN ALABAMA
TRUSTEE BUT PASSING UNDER THE WILL OF A BENEFICIARY DECEDENT DOMICILED
IN TENNESSEE; AND WHICH OF THE TWO STATES MAY TAX IN THE EVENT THAT IT
IS DETERMINED THAT ONLY ONE STATE MAY CONSTITUTIONALLY IMPOSE THE TAX. 

DECEDENT, A DOMICILED RESIDENT OF TENNESSEE, BY TRUST INDENTURE
TRANSFERRED CERTAIN STOCKS AND BONDS UPON SPECIFIED TRUSTS TO TITLE
GUARANTEE LOAN & TRUST COMPANY, AN ALABAMA CORPORATION DOING BUSINESS
IN THAT STATE.  SO FAR AS NOW MATERIAL, THE INDENTURE PROVIDED THAT THE
NET INCOME OF THE TRUST PROPERTY SHOULD BE PAID OVER TO DECEDENT DURING
HER LIFETIME.  SHE RESERVED THE POWER TO REMOVE THE TRUSTEE AND
SUBSTITUTE ANOTHER, WHICH WAS NEVER DONE; THE POWER TO DIRECT THE SALE
OF THE TRUST PROPERTY AND THE INVESTMENT OF THE PROCEEDS; AND THE POWER
TO DISPOSE OF THE TRUST ESTATE BY HER LAST WILL AND TESTAMENT, IN WHICH
EVENT IT WAS TO BE "HANDLED AND DISPOSED OF AS DIRECTED" IN HER WILL. 
THE INDENTURE PROVIDED FURTHER THAT IN DEFAULT OF DISPOSITION BY WILL
THE PROPERTY WAS TO BE HELD IN TRUST FOR THE BENEFIT OF HER HUSBAND,
SON, AND DAUGHTER.  UNTIL DECEDENT'S DEATH THE TRUST WAS ADMINISTERED
BY THE TRUST COMPANY IN ALABAMA AND THE PAPER EVIDENCES OF THE
INTANGIBLES HELD BY THE TRUSTEE WERE AT ALL TIMES LOCATED IN ALABAMA. 

BY HER LAST WILL AND TESTAMENT DECEDENT BEQUEATHED THE TRUST PROPERTY
TO THE TRUST COMPANY IN TRUST FOR THE BENEFIT OF HER HUSBAND, SON, AND
DAUGHTER, IN DIFFERENT AMOUNTS AND BY DIFFERENT ESTATES FROM THOSE
PROVIDED FOR BY THE TRUST INDENTURE, WITH REMAINDER INTERESTS OVER TO
THE CHILDREN OF THE SON AND THE DAUGHTER RESPECTIVELY, AND TO HIS WIFE
AND HER HUSBAND.  BY HER WILL TESTATRIX APPOINTED A TENNESSEE TRUST
COMPANY EXECUTOR "AS TO ALL PROPERTY WHICH I MAY OWN IN THE STATE OF
TENNESSEE AT THE TIME OF MY DEATH," AND AN ALABAMA TRUST COMPANY
EXECUTOR "AS TO ALL PROPERTY WHICH I MAY OWN IN THE STATE OF ALABAMA
AND ALSO AS TO ALL PROPERTY WHICH I MAY HAVE THE RIGHT TO DISPOSE OF BY
LAST WILL AND TESTAMENT IN SAID STATE."  THE WILL HAS BEEN PROBATED IN
TENNESSEE AND IN ALABAMA, AND LETTERS TESTAMENTARY HAVE ISSUED TO THE
TWO TRUST COMPANIES NAMED AS EXECUTORS IN THE WILL. 

THE PRESENT SUIT WAS BROUGHT BY THE TWO EXECUTORS IN A CHANCERY COURT
OF TENNESSEE AGAINST APPELLANTS, COMPRISING THE STATE TAX COMMISSION OF
ALABAMA, AND APPELLEE, COMMISSIONER OF FINANCE AND TAXATION OF THE
STATE OF TENNESSEE, WHO ARE CHARGED WITH THE DUTY OF COLLECTING
INHERITANCE OR SUCCESSION TAXES IN THEIR RESPECTIVE STATES.  THE BILL
OF COMPLAINT PRAYED A DECLARATORY JUDGMENT PURSUANT TO THE TENNESSEE
DECLARATORY JUDGMENTS ACT, TENNESSEE CODE, 1932, SECS. 8835-8847,
DETERMINING WHAT PORTIONS OF THE ESTATE OF DECEDENT ARE TAXABLE BY THE
STATE OF TENNESSEE AND WHAT PORTIONS BY THE STATE OF ALABAMA. 
APPELLANTS AND APPELLEE APPEARED AND BY THEIR ANSWERS AND BY
STIPULATION RECITED IN DETAIL THE FACTS ALREADY STATED AND ADMITTED
THAT THE TAXING OFFICIALS OF EACH STATE HAD IMPOSED OR ASSERTED THE
RIGHT TO IMPOSE AN INHERITANCE OR DEATH TRANSFER TAX ON THE TRUST
PROPERTY PASSING UNDER DECEDENT'S WILL. 

THE CHANCERY COURT OF TENNESSEE DECREED THAT THE STATE OF ALABAMA
COULD LAWFULLY IMPOSE THE TAX AND THAT THE INHERITANCE TAX LAW OF
TENNESSEE VIOLATED THE FOURTEENTH AMENDMENT IN SO FAR AS IT PURPORTED
TO IMPOSE A TAX MEASURED BY THE TRUST PROPERTY DISPOSED OF BY
DECEDENT'S WILL.  THE SUPREME COURT OF TENNESSEE REVERSED, AND ENTERED
ITS DECREE DECLARING THE TRUST PROPERTY DISPOSED OF BY DECEDENT'S WILL
TO BE "TAXABLE IN TENNESSEE AND NOT TAXABLE IN ALABAMA FOR PURPOSES OF
DEATH SUCCESSION OR TRANSFER TAXES."  174 TENN. 1; 118 S.W.2D 228.  THE
CASE COMES HERE ON AN APPEAL FROM THIS DECREE TAKEN BY THE TAXING
OFFICIALS OF ALABAMA UNDER SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C.
SEC. 344(A). 

ALABAMA HAS ASSESSED A STATE INHERITANCE TAX ON THE TRUST PROPERTY
PURSUANT TO ARTICLE XII, C. 2, OF ITS GENERAL REVENUE ACT.  ALABAMA
ACTS, 1935, PP. 434 ET SEQ. NO TRANSFER TAX HAS BEEN ASSESSED UPON THE
PROPERTY BY THE TENNESSEE TAXING OFFICIALS, BUT THEY ASSERT THE RIGHT
UNDER THE TENNESSEE STATUTE TO TAX THE TRANSFER UNDER DECEDENT'S WILL
OF THE TRUST PROPERTY.  SECTIONS 1259 AND 1260 OF THE TENNESSEE CODE OF
1932 IMPOSE A TAX UPON THE TRANSFER AT DEATH BY A RESIDENT OF THE STATE
OF HIS INTANGIBLE PROPERTY WHEREVER LOCATED, INCLUDING TRANSFERS UNDER
POWERS OF APPOINTMENT. 

BOTH THE COURT OF CHANCERY OF TENNESSEE AND THE SUPREME COURT OF
TENNESSEE, CONCEIVING THAT THE FOURTEENTH AMENDMENT REQUIRES THE
TRANSMISSION AT DEATH OF INTANGIBLES TO BE TAXED AT THEIR "SITUS" AND
THERE ONLY, CONSIDERED THAT THE PRIMARY QUESTION FOR DETERMINATION WAS
THE SITUS OR LOCATION TO BE ATTRIBUTED TO THE INTANGIBLES OF THE TRUST
ESTATE AT THE TIME OF DECEDENT'S DEATH.  AFTER CONSIDERING ALL OF THE
RELEVANT FACTORS, THE ONE COURT CONCLUDED THAT THE SITUS OF THE
INTANGIBLES WAS IN ALABAMA, THE OTHER THAT IT WAS IN TENNESSEE. 
DESPITE THE IMPOSSIBILITY IN THE CIRCUMSTANCES OF THIS CASE OF
ATTRIBUTING A SINGLE LOCATION TO THAT WHICH HAS NO PHYSICAL
CHARACTERISTICS AND WHICH IS ASSOCIATED IN NUMEROUS INTIMATE WAYS WITH
BOTH STATES, BOTH COURTS HAVE AGREED THAT THE FOURTEENTH AMENDMENT
COMPELS THE ATTRIBUTION TO BE MADE AND THAT, ONCE IT IS ESTABLISHED BY
JUDICIAL PRONOUNCEMENT THAT THE INTANGIBLES ARE IN ONE STATE RATHER
THAN THE OTHER, THE DUE PROCES CLAUSE FORBIDS THEIR TAXATION IN ANY
OTHER. 

THE DOCTRINE, OF RECENT ORIGIN, THAT THE FOURTEENTH AMENDMENT
PRECLUDES THE TAXATION OF ANY INTEREST IN THE SAME INTANGIBLE IN MORE
THAN ONE STATE HAS RECEIVED SUPPORT TO THE LIMITED EXTENT THAT IT WAS
APPLIED IN FARMERS LOAN & TRUST CO. V. MINNESOTA, 280 U.S. 204; BALDWIN
V. MISSOURI, 281 U.S. 586; FIRST NATIONAL BANK V. MAINE, 284 U.S. 312. 
STILL MORE RECENTLY THIS COURT HAS DECLINED TO GIVE IT COMPLETELY
LOGICAL APPLICATION.  FN1  IT HAS NEVER BEEN PRESSED TO THE EXTREME NOW
URGED UPON US, AND WE THINK THAT NEITHER REASON NOR AUTHORITY REQUIRES
ITS ACCEPTANCE IN THE CIRCUMSTANCES OF THE PRESENT CASE. 

THAT RIGHTS IN TANGIBLES - LAND AND CHATTELS - ARE TO BE REGARDED IN
MANY RESPECTS AS LOCALIZED AT THE PLACE WHERE THE TANGIBLE ITSELF IS
LOCATED FOR PURPOSES OF THE JURISDICTION OF A COURT TO MAKE DISPOSITION
OF PUTATIVE RIGHTS IN THEM, FOR PURPOSES OF CONFLICT OF LAWS, AND FOR
PURPOSES OF TAXATION, IS A DOCTRINE GENERALLY ACCEPTED BOTH IN THE
COMMON LAW AND OTHER LEGAL SYSTEMS BEFORE THE ADOPTION OF THE
FOURTEENTH AMENDMENT AND SINCE.  FN2  ORIGINATING, IT HAS BEEN THOUGHT,
IN THE TENDENCY OF THE MIND TO IDENTIFY RIGHTS WITH THEIR PHYSICAL
SUBJECTS, SEE SALMOND, JURISPRUDENCE (2ND ED.)  398, ITS SURVIVAL AND
THE CONSEQUENT CLEAVAGE BETWEEN THE RULES OF LAW APPLICABLE TO
TANGIBLES AND THOSE RELATING TO INTANGIBLES ARE ATTRIBUTABLE TO THE
EXCLUSIVE DOMINION EXERTED OVER THE TANGIBLES THEMSELVES BY THE
GOVERNMENT WITHIN WHOSE TERRITORIAL LIMITS THEY ARE FOUND.  GREEN V.
VAN BUSKIRK, 7 WALL.  139, 150; PENNOYER V. NEFF, 95 U.S. 714; ARNDT V.
GRIGGS, 134 U.S. 316, 320-321.  SEE MCDONALD V. MABEE, 243 U.S. 90, 91;
CF. HARRIS V. BALK, 198 U.S. 215, 222; FRICK V. PENNSYLVANIA, SUPRA,
497.  THE POWER OF GOVERNMENT AND ITS AGENCIES TO POSSESS AND TO
EXCLUDE OTHERS FROM POSSESSING TANGIBLES, AND THUS TO EXCLUDE THEM FROM
ENJOYING RIGHTS IN TANGIBLES LOCATED WITHIN ITS TERRITORY, AFFORDS
ADEQUATE BASIS FOR AN EXCLUSIVE TAXING JURISDICTION.  WHEN WE SPEAK OF
THE JURISDICTION TO TAX LAND OR CHATTELS AS BEING EXCLUSIVELY IN THE
STATE WHERE THEY ARE PHYSICALLY LOCATED, WE MEAN NO MORE THAN THAT THE
BENEFIT AND PROTECTION OF LAWS ENABLING THE OWNER TO ENJOY THE FRUITS
OF HIS OWNERSHIP AND THE POWER TO REACH EFFECTIVELY THE INTERESTS
PROTECTED, FOR THE PURPOSE OF SUBJECTING THEM TO PAYMENT OF A TAX, ARE
SO NARROWLY RESTRICTED TO THE STATE IN WHOSE TERRITORY THE PHYSICAL
PROPERTY IS LOCATED AS TO SET PRACTICAL LIMITS TO TAXATION BY OTHERS. 
OTHER STATES HAVE BEEN SAID TO BE WITHOUT JURISDICTION AND SO WITHOUT
CONSTITUTIONAL POWER TO TAX TANGIBLES IF, BECAUSE OF THEIR LOCATION
ELSEWHERE, THOSE STATES CAN AFFORD NO SUBSTANTIAL PROTECTION TO THE
RIGHTS TAXED AND CANNOT EFFECTIVELY LAY HOLD OF ANY INTEREST IN THE
PROPERTY IN ORDER TO COMPEL PAYMENT OF THE TAX.  SEE UNION TRANSIT CO.
V. KENTUCKY, 199 U.S. 194, 202; FRICK V. PENNSYLVANIA, 268 U.S. 473,
489 ET SEQ. FN3 

VERY DIFFERENT CONSIDERATIONS, BOTH THEORETICAL AND PRACTICAL, APPLY
TO THE TAXATION OF INTANGIBLES, THAT IS, RIGHTS WHICH ARE NOT RELATED
TO PHYSICAL THINGS.  SUCH RIGHTS ARE BUT RELATIONSHIPS BETWEEN PERSONS,
NATURAL OR CORPORATE, WHICH THE LAW RECOGNIZES BY ATTACHING TO THEM
CERTAIN SANCTIONS ENFORCEABLE IN COURTS.  THE POWER OF GOVERNMENT OVER
THEM AND THE PROTECTION WHICH IT GIVES THEM CANNOT BE EXERTED THROUGH
CONTROL OF A PHYSICAL THING.  THEY CAN BE MADE EFFECTIVE ONLY THROUGH
CONTROL OVER AND PROTECTION AFFORDED TO THOSE PERSONS WHOSE
RELATIONSHIPS ARE THE ORIGIN OF THE RIGHTS.  SEE CHICAGO, R.I. & P. RY.
CO. V. STURM, 174 U.S. 710, 716; HARRIS V. BALK, 198 U.S. 215, 222. 
OBVIOUSLY, AS SOURCES OF ACTUAL OR POTENTIAL WEALTH - WHICH IS AN
APPROPRIATE MEASURE OF ANY TAX IMPOSED ON OWNERSHIP OR ITS EXERCISE -
THEY CANNOT BE DISSOCIATED FROM THE PERSONS FROM WHOSE RELATIONSHIPS
THEY ARE DERIVED.  THESE ARE NOT IN ANY SENSE FICTIONS.  THEY ARE
INDISPUTABLE REALITIES. 

THE POWER TO TAX "IS AN INCIDENT OF SOVEREIGNTY, AND IS CO-EXTENSIVE
WITH THAT TO WHICH IT IS AN INCIDENT.  ALL SUBJECTS OVER WHICH THE
SOVEREIGN POWER OF A STATE EXTENDS, ARE OBJECTS OF TAXATION; BUT THOSE
OVER WHICH IT DOES NOT EXTEND, ARE, UPON THE SOUNDEST PRINCIPLES,
EXEMPT FROM TAXATION."  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 429.  BUT
THIS DOES NOT MEAN THAT THE SOVEREIGN POWER OF THE STATE DOES NOT
EXTEND OVER INTANGIBLES OF A DOMICILED RESIDENT BECAUSE THEY HAVE NO
PHYSICAL LOCATION WITHIN ITS TERRITORY, OR THAT ITS POWER TO TAX IS
LOST BECAUSE WE MAY CHOOSE TO SAY THEY ARE LOCATED ELSEWHERE.  A
JURISDICTION WHICH DOES NOT DEPEND ON PHYSICAL PRESENCE WITHIN THE
STATE IS NOT LOST BY DECLARING THAT IT IS ABSENT.  FROM THE BEGINNING
OF OUR CONSTITUTIONAL SYSTEM CONTROL OVER THE PERSON AT THE PLACE OF
HIS DOMICILE AND HIS DUTY THERE, COMMON TO ALL CITIZENS, TO CONTRIBUTE
TO THE SUPPORT OF GOVERNMENT HAVE BEEN DEEMED TO AFFORD AN ADEQUATE
CONSTITUTIONAL BASIS FOR IMPOSING ON HIM A TAX ON THE USE AND ENJOYMENT
OF RIGHTS IN INTANGIBLES MEASURED BY THEIR VALUE.  UNTIL THIS MOMENT
THAT JURISDICTION HAS NOT BEEN THOUGHT TO DEPEND ON ANY FACTOR OTHER
THAN THE DOMICILE OF THE OWNER WITHIN THE TAXING STATE, OR TO COMPEL
THE ATTRIBUTION TO INTANGIBLES OF A PHYSICAL PRESENCE WITHIN ITS
TERRITORY, AS THOUGH THEY WERE CHATTELS, IN ORDER TO SUPPORT THE TAX. 
CARPENTER V. PENNSYLVANIA, 17 HOW.  456; KIRTLAND V. HOTCHKISS, 100
U.S. 491; HAWLEY V. MALDEN, 232 U.S. 1; BULLEN V. WISCONSIN, 240 U.S.
625; CREAM OF WHEAT CO. V. GRAND FORKS, 253 U.S. 325; BLODGETT V.
SILBERMAN, 277 U.S. 1; FARMERS LOAN & TRUST CO. V. MINNESOTA, SUPRA;
BALDWIN V. MISSOURI, SUPRA; BEIDLER V. SOUTH CAROLINA, 282 U.S. 1;
FIRST NATIONAL BANK V. MAINE, SUPRA; VIRGINIA V. IMPERIAL COAL SALES
CO., 293 U.S. 15; SCHUYLKILL TRUST CO. V. PENNSYLVANIA, 302 U.S. 506. 

IN CASES WHERE THE OWNER OF INTANGIBLES CONFINES HIS ACTIVITY TO THE
PLACE OF HIS DOMICILE IT HAS BEEN FOUND CONVENIENT TO SUBSTITUTE A RULE
FOR A REASON, CF. NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308, 313;
FIRST BANK STOCK CORP. V. MINNESOTA, 301 U.S. 234, 241, BY SAYING THAT
HIS INTANGIBLES ARE TAXED AT THEIR SITUS AND NOT ELSEWHERE, OR, PERHAPS
LESS ARTIFICIALLY, BY INVOKING THE MAXIM MOBILIA SEQUUNTUR PERSONAM,
BLODGETT V. SILBERMAN, SUPRA; BALDWIN V. MISSOURI, SUPRA, WHICH MEANS
ONLY THAT IT IS THE IDENTITY OR ASSOCIATION OF INTANGIBLES WITH THE
PERSON OF THEIR OWNER AT HIS DOMICILE WHICH GIVES JURISDICTION TO TAX. 
BUT WHEN THE TAXPAYER EXTENDS HIS ACTIVITIES WITH RESPECT TO HIS
INTANGIBLES, SO AS TO AVAIL HIMSELF OF THE PROTECTION AND BENEFIT OF
THE LAWS OF ANOTHER STATE, IN SUCH A WAY AS TO BRING HIS PERSON OR
PROPERTY WITHIN THE REACH OF THE TAX GATHERER THERE, THE REASON FOR A
SINGLE PLACE OF TAXATION NO LONGER OBTAINS, AND THE RULE IS NOT EVEN A
WORKABLE SUBSTITUTE FOR THE REASONS WHICH MAY EXIST IN ANY PARTICULAR
CASE TO SUPPORT THE CONSTITUTIONAL POWER OF EACH STATE CONCERNED TO
TAX.  WHETHER WE REGARD THE RIGHT OF A STATE TO TAX AS FOUNDED ON POWER
OVER THE OBJECT TAXED, AS DECLARED BY CHIEF JUSTICE MARSHALL IN
MCCULLOCH V. MARYLAND, SUPRA, THROUGH DOMINION OVER TANGIBLES OR OVER
PERSONS WHOSE RELATIONSHIPS ARE THE SOURCE OF INTANGIBLE RIGHTS; OR ON
THE BENEFIT AND PROTECTION CONFERRED BY THE TAXING SOVEREIGNTY, OR
BOTH, IT IS UNDENIABLE THAT THE STATE OF DOMICILE IS NOT DEPRIVED, BY
THE TAXPAYER'S ACTIVITIES ELSEWHERE, OF ITS CONSTITUTIONAL JURISDICTION
TO TAX, AND CONSEQUENTLY THAT THERE ARE MANY CIRCUMSTANCES IN WHICH
MORE THAN ONE STATE MAY HAVE JURISDICTION TO IMPOSE A TAX AND MEASURE
IT BY SOME OR ALL OF THE TAXPAYER'S INTANGIBLES.  SHARES OF CORPORATE
STOCK MAY BE TAXED AT THE DOMICILE OF THE SHAREHOLDER AND ALSO AT THAT
OF THE CORPORATION WHICH THE TAXING STATE HAS CREATED AND CONTROLS; AND
INCOME MAY BE TAXED BOTH BY THE STATE WHERE IT IS EARNED AND BY THE
STATE OF THE RECIPIENT'S DOMICILE.  FN4  PROTECTION, BENEFIT, AND POWER
OVER THE SUBJECT MATTER ARE NOT CONFINED TO EITHER STATE.  THE TAXPAYER
WHO IS DOMICILED IN ONE STATE BUT CARRIES ON BUSINESS IN ANOTHER IS
SUBJECT TO A TAX THERE MEASURED BY THE VALUE OF THE INTANGIBLES USED IN
HIS BUSINESS.  NEW ORLEANS V. STEMPEL, 175 U.S. 309; BRISTOL V.
WASHINGTON COUNTY, 177 U.S. 133; STATE BOARD OF ASSESSORS V. COMPTOIR
NATIONAL, 191 U.S. 388; METROPOLITAN LIFE INS. CO. V. NEW ORLEANS, 205
U.S. 395; LIVERPOOL & L. & G. INS. CO. V. BOARD, 221 U.S. 346; WHEELING
STEEL CORP. V. FOX, 298 U.S. 193; CF. BLODGETT V. SILBERMAN, SUPRA;
BALDWIN V. MISSOURI, SUPRA.  BUT TAXATION OF A CORPORATION BY A STATE
WHERE IT DOES BUSINESS, MEASURED BY THE VALUE OF THE INTANGIBLES USED
IN ITS BUSINESS THERE, DOES NOT PRECLUDE THE STATE OF INCORPORATION
FROM IMPOSING A TAX MEASURED BY ALL ITS INTANGIBLES.  CREAM OF WHEAT
CO. V. GRAND FORKS, SUPRA, 329; FN5  SEE FIDELITY & COLUMBIA TRUST CO.
V. LOUISVILLE, 245 U.S. 54. 

THE PRACTICAL OBSTACLES AND UNWARRANTED CURTAILMENTS OF STATE POWER
WHICH MAY BE INVOLVED IN ATTEMPTING TO PREVENT THE TAXATION OF DIVERSE
LEGAL INTERESTS IN INTANGIBLES IN MORE THAN A SINGLE PLACE, THROUGH
FIRST ASCRIBING TO THEM A FICTITIOUS SITUS AND THEN INVOKING THE
PROHIBITION OF THE FOURTEENTH AMENDMENT AGAINST THEIR TAXATION
ELSEWHERE, ARE EXEMPLIFIED BY THE CIRCUMSTANCES OF THE PRESENT CASE. 
HERE, FOR REASONS OF HER OWN, THE TESTATRIX, ALTHOUGH DOMICILED IN
TENNESSEE AND ENJOYING THE BENEFITS OF ITS LAWS, FOUND IT ADVANTAGEOUS
TO CREATE A TRUST OF INTANGIBLES IN ALABAMA BY VESTING LEGAL TITLE TO
THE INTANGIBLES AND LIMITED POWERS OF CONTROL OVER THEM IN AN ALABAMA
TRUSTEE.  BUT SHE ALSO PROVIDED THAT BY RESORT TO HER POWER TO DISPOSE
OF PROPERTY BY WILL, CONFERRED UPON HER BY THE LAW OF THE DOMICILE, THE
TRUST COULD BE TERMINATED AND THE PROPERTY PASS UNDER THE WILL.  SHE
THUS CREATED TWO SETS OF LEGAL RELATIONSHIPS RESULTING IN DISTINCT
INTANGIBLE RIGHTS, THE ONE EMBODIED IN THE LEGAL OWNERSHIP BY THE
ALABAMA TRUSTEE OF THE INTANGIBLES, THE OTHER EMBODIED IN THE EQUITABLE
RIGHT OF THE DECEDENT TO CONTROL THE ACTION OF THE TRUSTEE WITH RESPECT
TO THE TRUST PROPERTY AND TO COMPEL IT TO PAY OVER TO HER THE INCOME
DURING HER LIFE, AND IN HER POWER TO DISPOSE OF THE PROPERTY AT DEATH. 

EVEN IF WE COULD RIGHTLY REGARD THESE VARIOUS AND DISTINCT LEGAL
INTERESTS, SPRINGING FROM DISTINCT RELATIONSHIPS, AS A COMPOSITE
UNITARY INTEREST AND ASCRIBE TO IT A SINGLE LOCATION IN SPACE, IT IS
DIFFICULT TO SEE HOW IT COULD BE SAID TO BE MORE IN ONE STATE THAN IN
THE OTHER AND UPON WHAT ARTICULATE PRINCIPLE THE FOURTEENTH AMENDMENT
COULD BE THOUGHT TO HAVE WITHDRAWN FROM EITHER STATE THE TAXING
JURISDICTION WHICH IT UNDOUBTEDLY POSSESSED BEFORE THE ADOPTION OF THE
AMENDMENT BY CONFERRING ON ONE STATE, AT THE EXPENSE OF THE OTHER,
EXCLUSIVE JURISDICTION TO TAX.  SEE PADDELL V. CITY OF NEW YORK, 211
U.S. 446, 448.  IF THE "DUE PROCESS" OF THE FIFTH AMENDMENT DOES NOT
REQUIRE US TO FIX A SINGLE EXCLUSIVE PLACE OF TAXATION OF INTANGIBLES
FOR THE BENEFIT OF THEIR FOREIGN OWNER, WHO IS ENTITLED TO ITS
PROTECTION, BURNET V. BROOKS, 288 U.S. 378; CF. RUSSIAN VOLUNTEER FLEET
V. UNITED STATES, 282 U.S. 481, 489, THE FOURTEENTH CAN HARDLY BE
THOUGHT TO MAKE US DO SO HERE, FOR THE DUE PROCESS CLAUSE OF EACH
AMENDMENT IS DIRECTED AT THE PROTECTION OF THE INDIVIDUAL AND HE IS
ENTITLED TO ITS IMMUNITY AS MUCH AGAINST THE STATE AS AGAINST THE
NATIONAL GOVERNMENT. 

IF TAXATION IS BUT A MEANS OF DISTRIBUTING THE COST OF GOVERNMENT
AMONG THOSE WHO ARE SUBJECT TO ITS CONTROL AND WHO ENJOY THE PROTECTION
OF ITS LAWS, SEE NEW YORK EX REL. COHN V. GRAVES, SUPRA, 313; FIRST
BANK STOCK CORP. V. MINNESOTA, SUPRA, 241, LEGAL OWNERSHIP OF THE
INTANGIBLES IN ALABAMA BY THE ALABAMA TRUSTEE WOULD SEEM TO AFFORD
ADEQUATE BASIS FOR IMPOSING ON IT A TAX MEASURED BY THEIR VALUE.  WE
CAN FIND NO MORE GROUND FOR SAYING THAT THE FOURTEENTH AMENDMENT
RELIEVES IT, OR THE PROPERTY WHICH IT HOLDS AND ADMINISTERS IN ALABAMA,
FROM BEARING THAT BURDEN, THAN FOR SAYING THAT THEY ARE
CONSTITUTIONALLY IMMUNE FROM PAYING ANY OTHER EXPENSE WHICH NORMALLY
ATTACHES TO THE ADMINISTRATION OF A TRUST IN THAT STATE.  THIS COURT
HAS NEVER DENIED THE CONSTITUTIONAL POWER OF THE TRUSTEE'S DOMICILE TO
SUBJECT THEM TO PROPERTY TAXATION.  SAFE DEPOSIT & TRUST CO. V.
VIRGINIA, 280 U.S. 83; SEE CASES COLLECTED IN 30 COLUMBIA LAW REV. 530;
2 COOLEY, TAXATION (8TH ED.), SEC. 602.  AND SINCE ALABAMA MAY LAWFULLY
TAX THE PROPERTY IN THE TRUSTEE'S HANDS, WE PERCEIVE NO GROUND FOR
SAYING THAT THE FOURTEENTH AMENDMENT FORBIDS THE STATE TO TAX THE
TRANSFER OF IT OR AN INTEREST IN IT TO ANOTHER MERELY BECAUSE THE
TRANSFER WAS EFFECTED BY DECEDENT'S TESTAMENTARY ACT IN ANOTHER STATE. 

NO MORE PLAUSIBLE GROUND IS ASSIGNED FOR DEPRIVING TENNESSEE OF THE
POWER TO TAX IN THE CIRCUMSTANCES OF THIS CASE.  THE DECEDENT'S POWER
TO DISPOSE OF THE INTANGIBLES WAS A POTENTIAL SOURCE OF WEALTH WHICH
WAS PROPERTY IN HER HANDS FROM WHICH SHE WAS UNDER THE HIGHEST
OBLIGATION, IN COMMON WITH HER FELLOW CITIZENS OF TENNESSEE, TO
CONTRIBUTE TO THE SUPPORT OF THE GOVERNMENT WHOSE PROTECTION SHE
ENJOYED.  EXERCISE OF THAT POWER, WHICH WAS IN HER COMPLETE AND
EXCLUSIVE CONTROL IN TENNESSEE, WAS MADE A TAXABLE EVENT BY THE
STATUTES OF THE STATE.  TAXATION OF IT MUST BE TAKEN TO BE AS MUCH
WITHIN THE JURISDICTION OF THE STATE AS TAXATION OF THE TRANSFER OF A
MORTGAGE ON LAND LOCATED IN ANOTHER STATE AND THERE SUBJECT TO TAXATION
AT ITS FULL VALUE.  SEE KIRTLAND V. HOTCHKISS, SUPRA; CF. PADDELL V.
CITY OF NEW YORK, SUPRA. 

FOR PURPOSES OF TAXATION, A GENERAL POWER OF APPOINTMENT, OF WHICH
THE TESTATRIX HERE WAS BOTH DONOR AND DONEE, HAS HITHERTO BEEN REGARDED
BY THIS COURT AS EQUIVALENT TO OWNERSHIP OF THE PROPERTY SUBJECT TO THE
POWER.  CHANLER V. KELSEY, 205 U.S. 466; BULLEN V. WISCONSIN, SUPRA,
630; CHASE NATIONAL BANK V. UNITED STATES, 278 U.S. 327, 338; SEE GRAY,
RULE AGAINST PERPETUITIES (3D ED. 1916), SEC. 524.  FN6  WHETHER THE
APPOINTEE DERIVES TITLE FROM THE DONOR, UNDER THE COMMON LAW THEORY, OR
FROM THE DONEE BY VIRTUE OF THE EXERCISE OF THE POWER, IS HERE
IMMATERIAL.  IN EITHER EVENT THE TRUSTEE'S TITLE UNDER THE WILL WAS
DERIVED FROM DECEDENT, DOMICILED IN TENNESSEE.  CF. WACHOVIA TRUST CO.
V. DOUGHTON, 272 U.S. 567.  THERE IS NO CONFLICT HERE BETWEEN THE LAWS
OF THE TWO STATES AFFECTING THE TRANSMISSION OF THE TRUST PROPERTY. 
THE TITLE OF THE TRUSTEE UNDER THE ORIGINAL ALABAMA TRUST CAME TO AN
END UPON THE EXERCISE OF THE TESTATRIX'S POWER OF APPOINTMENT; AND
ALTHOUGH THE TRUSTEE AFTER HER DEATH STILL HAD TITLE TO THE SECURITIES,
IT WAS IN BY A NEW TITLE AS LEGATEE UNDER HER WILL, AND A NEW
BENEFICIAL INTEREST WAS CREATED, BOTH DERIVED THROUGH THE EXERCISE OF
HER POWER OF DISPOSITION.  THE RESULTING SITUATION WAS NO DIFFERENT
FROM WHAT IT WOULD HAVE BEEN IF SHE HAD BEQUEATHED THE INTANGIBLES UPON
A NEW TRUST TO A NEW AND DIFFERENT TRUSTEE, EITHER WITHIN OR WITHOUT
THE STATE OF ALABAMA.  SO FAR AS THE POWER OF TENNESSEE TO TAX THE
EXERCISE OF THE POWER OF APPOINTMENT IS CONCERNED, THERE IS NO
SUBSTANTIAL DIFFERENCE BETWEEN THE PRESENT CASE AND ANY OTHER CASE IN
WHICH AT THE MOMENT OF DEATH THE EVIDENCES OF INTANGIBLES PASSING UNDER
THE WILL OF A DECEDENT DOMICILED IN ONE STATE ARE PHYSICALLY PRESENT IN
ANOTHER.  SEE BLODGETT V. SILBERMAN, SUPRA; BALDWIN V. MISSOURI,
SUPRA. 

IT HAS HITHERTO BEEN THE ACCEPTED LAW OF THIS COURT THAT THE STATE OF
DOMICILE MAY CONSTITUTIONALLY TAX THE EXERCISE OR NON-EXERCISE AT DEATH
OF A GENERAL POWER OF APPOINTMENT, BY ONE WHO IS BOTH DONOR AND DONEE
OF THE POWER, RELATING TO SECURITIES HELD IN TRUST IN ANOTHER STATE. 
BULLEN V. WISCONSIN, SUPRA.  IF IT BE THOUGHT THAT IT IS IDENTITY OF
THE INTANGIBLES WITH THE PERSON OF THE OWNER AT THE PLACE OF HIS
DOMICILE WHICH GIVES POWER OVER THEM AND HENCE "JURISDICTION TO TAX,"
AND THIS IS THE REASON UNDERLYING THE MAXIM MOBILIA SEQUUNTUR PERSONAM,
IT IS CERTAIN HERE THAT THE INTANGIBLES FOR SOME PURPOSES ARE
IDENTIFIED WITH THE TRUSTEE, THEIR LEGAL OWNER, AT THE PLACE OF ITS
DOMICILE AND THAT IN ANOTHER AND DIFFERENT RELATIONSHIP AND FOR A
DIFFERENT PURPOSE - THE EXERCISE OF THE POWER OF DISPOSITION AT DEATH,
WHICH IS THE EQUIVALENT OF OWNERSHIP - THEY ARE IDENTIFIED WITH THE
PLACE OF DOMICILE OF THE TESTATRIX, TENNESSEE.  IN EFFECTING HER
PURPOSES, THE TESTATRIX BROUGHT SOME OF THE LEGAL INTERESTS WHICH SHE
CREATED WITHIN THE CONTROL OF ONE STATE BY SELECTING A TRUSTEE THERE
AND OTHERS WITHIN THE CONTROL OF THE OTHER STATE BY MAKING HER DOMICILE
THERE.  SHE NECESSARILY INVOKED THE AID OF THE LAW OF BOTH STATES, AND
HER LEGATEES, BEFORE THEY CAN SECURE AND ENJOY THE BENEFITS OF
SUCCESSION, MUST INVOKE THE LAW OF BOTH. 

WE CAN FIND NOTHING IN THE HISTORY OF THE FOURTEENTH AMENDMENT AND NO
SUPPORT IN REASON, PRINCIPLE, OR AUTHORITY FOR SAYING THAT IT PROHIBITS
EITHER STATE, IN THE CIRCUMSTANCES OF THIS CASE, FROM LAYING THE TAX. 
ON THE CONTRARY THIS COURT, IN SUSTAINING THE TAX AT THE PLACE OF
DOMICILE IN A CASE LIKE THE PRESENT, HAS DECLARED THAT BOTH THE
DECEDENT'S DOMICILE AND THAT OF THE TRUSTEE ARE FREE TO TAX.  BULLEN V.
WISCONSIN, SUPRA, 631; CF. KEENEY V. NEW YORK, 222 U.S. 525, 537;
GUARANTY TRUST CO. V. BLODGETT, 287 U.S. 509.  THAT HAS REMAINED THE
LAW OF THIS COURT UNTIL THE PRESENT MOMENT, AND WE SEE NO REASON FOR
DISCARDING IT NOW.  WE FIND IT IMPOSSIBLE TO SAY THAT TAXATION OF
INTANGIBLES CAN BE REDUCED IN EVERY CASE TO THE MERE MECHANICAL
OPERATION OF LOCATING AT A SINGLE PLACE, AND THERE TAXING, EVERY LEGAL
INTEREST GROWING OUT OF ALL THE COMPLEX LEGAL RELATIONSHIPS WHICH MAY
BE ENTERED INTO BETWEEN PERSONS.  THIS IS THE CASE BECAUSE IN POINT OF
ACTUALITY THOSE INTERESTS MAY BE TOO DIVERSE IN THEIR RELATIONSHIPS TO
VARIOUS TAXING JURISDICTIONS TO ADMIT OF UNITARY TREATMENT WITHOUT
DISCARDING MODES OF TAXATION LONG ACCEPTED AND APPLIED BEFORE THE
FOURTEENTH AMENDMENT WAS ADOPTED, AND STILL RECOGNIZED BY THIS COURT AS
VALID.  SEE PADDELL V. NEW YORK, SUPRA, 448.  THE FOURTEENTH AMENDMENT
CANNOT BE CARRIED OUT WITH SUCH MECHANICAL NICETY WITHOUT INFRINGING
POWERS WHICH WE THINK HAVE NOT YET BEEN WITHDRAWN FROM THE STATES.  WE
HAVE RECENTLY DECLINED TO PRESS TO A LOGICAL EXTREME THE DOCTRINE THAT
THE FOURTEENTH AMENDMENT MAY BE INVOKED TO COMPEL THE TAXATION OF
INTANGIBLES BY ONLY A SINGLE STATE BY ATTRIBUTING TO THEM A SITUS
WITHIN THAT STATE.  FN7  WE THINK IT CANNOT BE PRESSED SO FAR HERE. 

IF WE ENJOYED THE FREEDOM OF THE FRAMERS IT IS POSSIBLE THAT WE
MIGHT, IN THE LIGHT OF EXPERIENCE, DEVISE A MORE EQUITABLE SYSTEM OF
TAXATION THAN THAT WHICH THEY GAVE US.  BUT WE ARE CONVINCED THAT THAT
END CANNOT BE ATTAINED BY THE DEVICE OF ASCRIBING TO INTANGIBLES IN
EVERY CASE A LOCUS FOR TAXATION IN A SINGLE STATE DESPITE THE MULTIPLE
LEGAL INTERESTS TO WHICH THEY MAY GIVE RISE AND DESPITE THE CONTROL
OVER THEM OR THEIR TRANSMISSION BY ANY OTHER STATE AND ITS LEGITIMATE
INTEREST IN TAXING THE ONE OR THE OTHER.  WHILE FICTIONS ARE SOMETIMES
INVENTED IN ORDER TO REALIZE THE JUDICIAL CONCEPTION OF JUSTICE, WE
CANNOT DEFINE THE CONSTITUTIONAL GUARANTY IN TERMS OF A FICTION SO
UNRELATED TO REALITY WITHOUT CREATING AS MANY TAX INJUSTICES AS WE
WOULD AVOID AND WITHOUT EXERCISING A POWER TO REMAKE CONSTITUTIONAL
PROVISIONS WHICH THE CONSTITUTION HAS NOT GIVEN TO THE COURTS.  SEE
BRISTOL V. WASHINGTON COUNTY, SUPRA, 145; KIDD V. ALABAMA, 188 U.S.
730, 732, QUOTED WITH APPROVAL IN HAWLEY V. MALDEN, SUPRA, 13; BULLEN
V. WISCONSIN, SUPRA, 630; FIDELITY & COLUMBIA TRUST CO. V. LOUISVILLE,
SUPRA, 58; CREAM OF WHEAT CO. V. GRAND FORKS, SUPRA, 330. 

SO FAR AS THE DECREE OF THE SUPREME COURT OF TENNESSEE DENIES THE
POWER OF ALABAMA TO TAX, IT IS REVERSED. 

FN1  SEE, IN THE CASE OF INCOME TAXATION, LAWRENCE V. STATE TAX
COMM'N, 286 U.S. 276; NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308;
GUARANTY TRUST CO. V. VIRGINIA, 305 U.S. 19; CF. SENIOR V. BRADEN, 295
U.S. 422, 431-432.  AND IN THE CASE OF TAXATION OF SHARES OF STOCK, SEE
CORRY V. BALTIMORE, 196 U.S. 466; FIRST BANK STOCK CORP. V. MINNESOTA,
301 U.S. 234, 239-240; SCHUYLKILL TRUST CO. V. PENNSYLVANIA, 302 U.S.
506, 514-516. 

FN2  GREEN V. VAN BUSKIRK, 5 WALL.  307; 7 WALL.  139; PENNOYER V.
NEFF, 95 U.S. 714; ARNDT V. GRIGGS, 134 U.S. 316; FALL V. EASTIN, 215
U.S. 1; OLMSTED V. OLMSTED, 216 U.S. 386; UNITED STATES V. GUARANTY
TRUST CO., 293 U.S. 340, 345-346; PADDELL V. CITY OF NEW YORK, 211 U.S.
446; ST. LOUIS V. FERRY CO., 11 WALL.  423, 430; FRICK V. PENNSYLVANIA,
268 U.S. 473; SEE STORY, CONFLICT OF LAWS (8TH ED.), SECS. 550, 551;
DICEY, CONFLICT OF LAWS (5TH ED.), PP. 418, ET SEQ., 583 ET SEQ., 606
ET SEQ.; 1 BEALE, CONFLICT OF LAWS, SEC. 48.1 ET SEQ.; AMERICAN LAW
INSTITUTE, RESTATEMENT OF CONFLICT OF LAWS, SECS. 48, 49; 2 COOLEY,
TAXATION (4TH ED.), SECS. 447, 451. 

FN3  BUT THERE ARE MANY LEGAL INTERESTS OTHER THAN CONVENTIONAL
OWNERSHIP WHICH MAY BE CREATED WITH RESPECT TO LAND OF SUCH A CHARACTER
THAT THEY MAY BE CONSTITUTIONALLY SUBJECTED TO TAXATION IN STATES OTHER
THAN THAT WHERE THE LAND IS SITUATED.  NO ONE HAS DOUBTED THE
CONSTITUTIONAL POWER OF A STATE TO TAX ITS DOMICILED RESIDENTS ON THEIR
SHARES OF STOCK IN A FOREIGN CORPORATION WHOSE ONLY PROPERTY IS REAL
ESTATE LOCATED ELSEWHERE, DARNELL V. INDIANA, 226 U.S. 390; HAWLEY V.
MALDEN, 232 U.S. 1; CF. KIDD V. ALABAMA, 188 U.S. 730; CORRY V.
BALTIMORE, 196 U.S. 466; CREAM OF WHEAT CO. V. COUNTY OF GRAND FORKS,
253 U.S. 325, 329; SCHUYLKILL TRUST CO. V. PENNSYLVANIA, 302 U.S. 506,
514-516, OR TO TAX A VALUABLE CONTRACT FOR THE PURCHASE OF LAND OR
CHATTELS LOCATED IN ANOTHER STATE, SEE CITIZENS NATIONAL BANK V. DURR,
257 U.S. 99, 108; CF. GISH V. SHAVER, 140 KY. 647, 650; 131 S.W. 515;
GOLDEN V. MUNSINGER, 91 KAN. 820, 823; 139 P. 379; MARQUETTE V.
MICHIGAN IRON & LAND CO., 132 MICH. 130; 92 N.W. 934, OR TO TAX A
MORTGAGE OF REAL ESTATE LOCATED WITHOUT THE STATE, EVEN THOUGH THE LAND
AFFORDS THE ONLY SOURCE OF PAYMENT, SEE KIRTLAND V. HOTCHKISS, 100 U.S.
491; CF. SAVINGS & LOAN SOCIETY V. MULTNOMAH COUNTY, 169 U.S. 421;
BRISTOL V. WASHINGTON COUNTY, 177 U.S. 133; PADDELL V. NEW YORK, 211
U.S. 446.  EACH OF THESE LEGAL INTERESTS FINDS ITS ONLY ECONOMIC SOURCE
IN THE VALUE OF THE LAND, AND THE RIGHTS WHICH ARE ELSEWHERE SUBJECTED
TO THE TAX CAN BE BROUGHT TO THEIR ULTIMATE FRUITION ONLY THROUGH SOME
MEANS OF CONTROL OF THE LAND ITSELF.  BUT THE MEANS OF CONTROL MAY BE
SUBJECTED TO TAXATION IN THE STATE OF ITS OWNER WHETHER IT BE A SHARE
OF STOCK OR A CONTRACT OR A MORTGAGE.  THERE IS NO WANT OF JURISDICTION
TO TAX THESE INTERESTS WHERE THEY ARE OWNED IN THE SENSE THAT THE STATE
LACKS POWER TO APPROPRIATE THEM TO THE PAYMENT OF THE TAX.  NO COURT
HAS CONDEMNED SUCH ACTION AS SO CAPRICIOUS, ARBITRARY OR OPPRESSIVE AS
TO BRING IT WITHIN THE PROHIBITION OF THE FOURTEENTH AMENDMENT, FOR IT
IS UNIVERSALLY RECOGNIZED THAT THESE INTERESTS ARE OF THEMSELVES IN
SOME MEASURE CLOTHED WITH THE LEGAL INCIDENTS OF PROPERTY ENJOYED BY
THEIR OWNER, IN THE STATE WHERE HE RESIDES, THROUGH THE BENEFIT AND
PROTECTION OF ITS LAWS. 

FN4  SEE FOOTNOTE 1, ANTE. 

FN5  SEE ALSO FOOTNOTE 2, ANTE. 

FN6  NO COMPARABLE RIGHT OR POWER RESIDED IN THE BENEFICIARIES UPON
WHOM A TAX WAS SOUGHT TO BE LEVIED IN SAFE DEPOSIT & TRUST CO. V.
VIRGINIA, 280 U.S. 83, 91. 

FN7  SEE FOOTNOTE 1, ANTE. 

MR. JUSTICE REED CONCURS IN THIS OPINION EXCEPT AS TO THE STATEMENT
THAT "TAXATION OF A CORPORATION BY A STATE WHERE IT DOES BUSINESS,
MEASURED BY THE VALUE OF THE INTANGIBLES USED IN ITS BUSINESS THERE,
DOES NOT PRECLUDE THE STATE OF INCORPORATION FROM IMPOSING A TAX
MEASURED BY ALL ITS INTANGIBLES."  UPON THIS POINT HE RESERVES HIS
CONCLUSION. 

MR. JUSTICE BUTLER, DISSENTING. 

THE SOLE QUESTION IS WHETHER, ON THE FACTS ABOUT TO BE STATED, THE
TENNESSEE INHERITANCE TAX LAW, CONSISTENTLY WITH THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT, MAY BE EXTENDED TO INTANGIBLE PERSONAL
PROPERTY EVIDENCED BY CERTIFICATES OF STOCK AND BONDS HELD IN ALABAMA. 

THE SUIT WAS BROUGHT IN A CHANCERY COURT OF TENNESSEE UNDER THE
DECLARATORY JUDGMENTS ACT OF THAT STATE.  FN1  COMPLAINANTS WERE THE
NASHVILLE TRUST COMPANY, A TENNESSEE CORPORATION APPOINTED BY THE WILL
OF MRS. GRACE C. SCALES AS EXECUTOR FOR TENNESSEE, AND THE TITLE
GUARANTEE LOAN & TRUST COMPANY, WHICH WILL BE REFERRED TO AS THE
BIRMINGHAM TRUST COMPANY, AN ALABAMA CORPORATION APPOINTED AS EXECUTOR
FOR THAT STATE.  DEFENDANTS WERE THE COMMISSIONER OF FINANCE AND
TAXATION OF TENNESSEE, AND THE MEMBERS OF THE ALABAMA TAX COMMISSION. 
THE BILL PRAYED THAT THE COURT DETERMINE WHAT PORTIONS OF THE ESTATE
ARE TAXABLE BY TENNESSEE AND WHAT PORTIONS ARE TAXABLE BY ALABAMA.  THE
TENNESSEE COMMISSIONER FILED ANSWER PRAYING DECLARATION AND DECREE THAT
THE SECURITIES HELD IN ALABAMA ARE SUBJECT TO THE INHERITANCE TAX LAW
OF TENNESSEE.  FN2  THE MEMBERS OF THE ALABAMA COMMISSION FILED THEIR
ANSWER AND A CROSS-BILL PRAYING DECREE IN FAVOR OF THAT STATE AND
AGAINST THE BIRMINGHAM TRUST COMPANY FOR THE TAX CLAIMED UNDER THE LAWS
OF ALABAMA.  FN3 

THE PARTIES STIPULATED THAT THE FACTS ARE AS STATED IN THE
PLEADINGS.  IN SUBSTANCE THEY ARE AS FOLLOWS: 

AT ALL TIMES INVOLVED IN THIS CASE, MRS. SCALES WAS A RESIDENT OF AND
DOMICILED IN TENNESSEE.  HER BROTHER, FORMERLY LIVING IN ALABAMA, DIED
IN 1905 LEAVING A WILL THAT BEQUEATHED TO THE BIRMINGHAM TRUST COMPANY
STOCKS AND BONDS ISSUED BY ALABAMA CORPORATIONS TO BE HELD IN TRUST FOR
THE USE AND BENEFIT OF HIS WIDOW AND AT HER DEATH TO BE DELIVERED TO
MRS. SCALES.  THE WIDOW DIED IN 1917.  IMMEDIATELY, DECEMBER 29, 1917,
AND WITHOUT TAKING ANY OF THEM FROM THE POSSESSION OF THE TRUST
COMPANY, MRS. SCALES EXECUTED JOINTLY WITH IT AN INDENTURE COVERING THE
STOCKS AND BONDS OF WHICH SHE HAD BECOME OWNER UNDER HER BROTHER'S
WILL. 

BY PARAGRAPH 1, SHE TRANSFERRED 50 BONDS TO THE TRUST COMPANY AS
TRUSTEE FOR THE USE AND BENEFIT OF HER SON AND DIRECTED THAT IT HOLD
AND MANAGE THE PROPERTY AND PAY NET INCOME TO HIM DURING HIS LIFE, AND
THAT, SUBJECT TO HIS POWER OF DISPOSITION BY WILL, ALL PROPERTY
BELONGING TO THE TRUST AT THE TIME OF HIS DEATH SHOULD GO TO HIS
CHILDREN.  BY PARAGRAPH 2, SHE TRANSFERRED TO THE SAME COMPANY 50 OTHER
BONDS TO BE HELD IN TRUST FOR THE BENEFIT OF HER DAUGHTER SUBJECT TO
TRUSTS, CONDITIONS, AND POWER OF TESTAMENTARY APPOINTMENT BY HER
DAUGHTER LIKE THOSE SPECIFIED IN THE PROVISIONS CREATING THE TRUST FOR
HER SON. 

BY PARAGRAPH 3, SHE TRANSFERRED TO THE SAME TRUSTEE THE BALANCE OF THE
PROPERTY BY IT TO BE HELD IN TRUST AND MANAGED FOR SPECIFIED USES AND
PURPOSES AND UPON TERMS AND CONDITIONS IN SUBSTANCE AS FOLLOWS:  (A)
SHE DIRECTED THE TRUSTEE TO PAY THE INCOME TO HER WHILE SHE LIVED.  (B)
SHE RESERVED THE RIGHT BY WILL TO DISPOSE OF ALL THE TRUST PROPERTY. 
(C)  SHE DIRECTED THAT IF SHE MADE NO DISPOSITION BY WILL THE TRUSTEE
SHOULD PAY $200 PER MONTH OUT OF INCOME TO HER HUSBAND DURING HIS LIFE
AND THE BALANCE OF INCOME TO HER SON AND DAUGHTER DURING THEIR LIVES;
THAT THE CHILD OR CHILDREN OF EITHER, IF DEAD, SHOULD RECEIVE THE SHARE
OF INCOME WHICH THE PARENT WOULD HAVE RECEIVED IF LIVING; THAT ONE-HALF
OF THE PROPERTY IN THE TRUST AT THE TIME OF HER DEATH BE TRANSFERRED TO
THE TRUST CREATED FOR HER SON; AND THAT THE OTHER HALF BE TRANSFERRED
TO THE TRUST CREATED FOR HER DAUGHTER.  (D)  SHE RESERVED POWER AT ANY
TIME THAT SHE DEEMED INCOME INSUFFICIENT FOR HER SUPPORT TO DIRECT THE
TRUSTEE TO SELL A PART OF THE TRUST PROPERTY AND TO GIVE HER THE AMOUNT
RECEIVED FOR IT, AND RETAINED THE RIGHT TO DIRECT TRANSFER TO HER SON
OR DAUGHTER OF ANY PORTION OF THE TRUST PROPERTY, AND (E) THE RIGHT TO
DIRECT INVESTMENTS.  SHE RETAINED AUTHORITY TO REMOVE THE TRUSTEE AND
TO APPOINT A SUCCESSOR.  AS TO NEARLY ALL THE PROPERTY HELD IN TRUST
UNDER PARAGRAPH 3, MRS. SCALES, HER SON, DAUGHTER, AND THE TRUSTEE,
JANUARY 11, 1929, EXECUTED A WRITING RELEASING THE POWER RESERVED TO
ENCROACH ON OR DISPOSE OF CORPUS. 

JANUARY 1, 1926, MRS. SCALES EXERTED THE POWER BY WILL TO DISPOSE OF
THE TRUST PROPERTY.  ITEM TWO RECITES THAT SHE HAD RESERVED THE RIGHT
TO DISPOSE BY WILL OF PROPERTY CONVEYED TO THE TRUSTEE UNDER PARAGRAPH
3 OF THE TRUST AGREEMENT AND PROVIDES:  "NOW, THEREFORE, DESIRING TO
EXERCISE THE RIGHT TO DISPOSE OF THE SAID TRUST PROPERTY, I DO HEREBY
GIVE, DEVISE, AND BEQUEATH ALL OF THE PROPERTY IN CUSTODY OF SAID TITLE
GUARANTEE LOAN & TRUST COMPANY  ...  AT THE TIME OF MY DEATH TO THE
SAID COMPANY, AS TRUSTEE, THE SAME TO BE HELD BY IT IN TRUST UPON THE
USES AND TRUSTS, TERMS, CONDITIONS, AND LIMITATIONS HEREINAFTER SET
FORTH IN THIS ITEM OF MY WILL." 

SHALL BE SET ASIDE PROPERTY OF THE VALUE OF $100,000 TO BE HELD IN
TRUST AS THERE SPECIFIED FOR HER DAUGHTER AND HER DAUGHTER'S CHILDREN. 
THREE DIRECTS THAT, AFTER THE TRUST PROPERTY SHALL BE SET ASIDE AS
SPECIFIED IN SECTIONS ONE AND TWO, THE BALANCE IN THE HANDS OF THE
TRUSTEE SHALL BE GIVEN IN EQUAL SHARES TO HER DAUGHTER AND SON TO BE
THEIRS ABSOLUTELY. 

AN AMENDMENT TO THE ANSWER OF THE MEMBERS OF THE ALABAMA TAX
COMMISSION ALLEGES, AND BY STIPULATION THE OTHER PARTIES ADMIT, THAT
FROM THE TRUST INDENTURE IT FULLY APPEARS THAT THE TITLE, POSSESSION
AND CONTROL OF THE SECURITIES PASSED COMPLETELY TO THE BIRMINGHAM TRUST
COMPANY AND THAT SUCH WAS THE STATUS OF THE SECURITIES AT THE TIME OF
THE DEATH OF MRS. SCALES.  THAT AMENDMENT ALSO ALLEGES, AND THE
STIPULATION ADMITS, THAT SHE NEVER EXERCISED THE RIGHT RESERVED TO HER
TO REMOVE THE TRUSTEE AND THAT THE TRUST PROPERTY COULD NOT HAVE BEEN
REMOVED FROM ALABAMA EXCEPT UPON AN ORDER OF A CIRCUIT COURT AND IN
COMPLIANCE WITH THE STATUTES OF THAT STATE.  FN4 

THE CHANCERY COURT FOUND THAT AT THE TIME OF THE DEATH OF MRS. SCALES
THE SECURITIES IN QUESTION "HAD A LEGAL SITUS ANALOGOUS TO THE SITUS OF
TANGIBLE PERSONAL PROPERTY IN THE STATE OF ALABAMA."  IT DECREED THAT
ALABAMA MAY LEGALLY IMPOSE UPON THEM A DEATH TRANSFER OR SUCCESSION TAX
AND THAT IN SO FAR AS THE INHERITANCE TAX LAW OF TENNESSEE ATTEMPTS TO
IMPOSE THE TAX CLAIMED BY THAT STATE IT VIOLATES THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT. 

THE STATE SUPREME COURT REVERSED THE CHANCERY COURT.  IT HELD THAT
THE SECURITIES WERE NOT SO USED IN ALABAMA AS TO GIVE THEM A SITUS
THERE; THAT WHEN MRS. SCALES DIED THE SITUATION WAS THE SAME AS THOUGH
THERE NEVER HAD BEEN A TRUST; AND THAT THE PROPERTY PASSED UNDER THE
WILL AS HER ABSOLUTE PROPERTY.  IT ENTERED A DECREE DECLARING THE
PROPERTY TAXABLE IN TENNESSEE AND NOT TAXABLE IN ALABAMA. 

THE TENNESSEE COMMISSIONER AND THE MEMBERS OF THE ALABAMA COMMISSION
RESPECTIVELY CLAIM THE RIGHT TO IMPOSE AN INHERITANCE OR DEATH
SUCCESSION TAX BASED UPON THE VALUE OF ALL THE PROPERTY HELD IN THE
TRUST AT THE TIME OF THE DEATH OF MRS. SCALES.  RIGHTLY THE PARTIES
AGREED AND THE STATE COURTS ASSUMED THAT, CONSISTENTLY WITH THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, BOTH STATES MAY NOT IMPOSE
TRANSFER TAXES IN RESPECT OF THE SAME PROPERTY.  FRICK V. PENNSYLVANIA,
268 U.S. 473, 489-494.  FARMERS LOAN CO. V. MINNESOTA, 280 U.S. 204,
210-212.  BALDWIN V. MISSOURI, 281 U.S. 586, 591.  BEIDLER V. SOUTH
CAROLINA TAX COMM'N, 282 U.S. 1, 7-8.  FIRST NATIONAL BANK V. MAINE,
284 U.S. 312, 328.  CITY BANK CO. V. SCHNADER, 293 U.S. 112, 116-117. 
SEE BURNET V. BROOKS, 288 U.S. 378, 401-402; SENIOR V. BRADEN, 295 U.S.
422, 432; WHEELING STEEL CORP. V. FOX, 298 U.S. 193, 209-210; NEW YORK
EX REL. WHITNEY V. GRAVES, 299 U.S. 366, 372; NEW YORK EX REL. COHN V.
GRAVES, 300 U.S. 308, 314-315; WORCESTER COUNTY CO. V. RILEY, 302 U.S.
292, 297, 298.  NO DISTINCTION IS SUGGESTED BETWEEN THE SECURITIES
COVERED BY THE RELINQUISHMENT, JANUARY 11, 1929, OF THE RIGHT RESERVED
TO ENCROACH UPON AND TO DIRECT TRANSFER FROM THE CORPUS AND THE SMALL
PART TO WHICH THE RELINQUISHMENT DID NOT EXTEND.  AND, AS THE PARTIES
AND THE STATE COURTS HAVE TREATED ALL ALIKE, THIS COURT MAY DECIDE UPON
TITLE AND TAXABILITY AS IF THE RELINQUISHMENT COVERED ALL. 

THE PARTIES AGREE THAT, UPON EXECUTION OF THE INDENTURE, TITLE,
POSSESSION, AND CONTROL PASSED COMPLETELY TO THE TRUSTEE AND SO
CONTINUED UNTIL THE DEATH OF MRS. SCALES.  THERE BEING NO PROVISION
AUTHORIZING REVOCATION, THE GRANT WAS IRREVOCABLE.  PERRY ON TRUSTS AND
TRUSTEES (7TH ED.)  SEC.  104.  BOGERT, TRUSTS AND TRUSTEES, SEC. 993. 
KEYES V. CARLETON, 141 MASS. 45, 49; 6 N.E. 524.  EWING V. JONES, 130
IND. 247, 254-255; 29 N.E. 1057.  BATH SAVINGS INSTITUTION V. HATHORN,
88 ME. 122, 128-129; 33 A. 836.  WILSON V. ANDERSON, 186 PA. 531, 537;
40 A. 1096.  HELLMAN V. MCWILLIAMS, 70 CAL. 449, 453; 11 P. 659. 
STRONG V. WEIR, 47 S.C. 307, 323; 25 S.E. 157.  UNQUESTIONABLY IT
PRESENTLY VESTED FULL LEGAL AND EQUITABLE TITLE IN THE TRUSTEE AND
BENEFICIARIES, SUBJECT TO BE DIVESTED ONLY BY THE EXERTION BY MRS.
SCALES OF HER POWER OF APPOINTMENT BY WILL.  COOLIDGE V. LONG, 282 U.S.
582, 597.  MARVIN V. SMITH, 46 N.Y. 571, 575.  CARROLL V. SMITH, 99 MD.
653, 658 ET SEQ.; 59 A. 131.  BOONE V. DAVIS, 64 MISS.  133, 140; 8 SO.
202.  THAT POWER DID NOT AMOUNT TO AN ESTATE OR INTEREST IN THE TRUST
PROPERTY.  UNITED STATES V. FIELD, 255 U.S. 257, 263.  PORTER V.
COMMISSIONER, 288 U.S. 436, 441.  ALL DOUBT AS TO THAT IS PRECLUDED BY
THE CLAUSE OF THE INDENTURE WHICH PROVIDES THAT IN THE ABSENCE OF
DISPOSITION BY HER WILL THE PROPERTY SHALL CONTINUE TO BE HELD IN TRUST
FOR PURPOSES THERE SPECIFIED. 

THE RESERVED AUTHORITY TO DIRECT INVESTMENT CONTEMPLATES ACTION AS
TRUSTEE AND NOT CONTROL AS OWNER.  REINECKE V. NORTHERN TRUST CO., 278
U.S. 339, 346-347.  THE AUTHORITY TO REMOVE THE TRUSTEE AND TO APPOINT
A SUCCESSOR DETRACTS NOTHING FROM THE PLENARY GRANT OF TITLE.  SEE
BOWDITCH V. BANUELOS, 1 GRAY 220, 230.  WHEN READ AS IT MUST BE IN
CONNECTION WITH THE PROVISIONS OF THE ALABAMA STATUTE ABOVE REFERRED
TO, THAT PROVISION OF THE INDENTURE DOES NOT RESERVE POWER TO REMOVE
THE TRUST SECURITIES FROM THE STATE OF ALABAMA. 

AS THE DEATH OF MRS. SCALES AND TAKING EFFECT OF HER WILL WERE
COINCIDENT, THE LEGAL TITLE REMAINED IN THE TRUSTEE.  THE PURPOSES MRS.
SCALES INTENDED TO EFFECT BY THE TRUSTS DEFINED BY HER WILL ARE LIKE
THOSE SHE INTENDED TO SERVE BY THE TRUSTS CREATED BY THE INDENTURE
WHICH, IN ABSENCE OF WILL, WERE TO CONTINUE AFTER DEATH.  STRIPPED OF
MERE LEGALISM, AND TAKEN ACCORDING TO SUBSTANCE, THE WILL OPERATED TO
AMEND AND CONTINUE THE TRUSTS CREATED BY THE INDENTURE.  QUESTIONS OF
POWER TO TAX ARE GOVERNED BY THE SUBSTANCE OF THINGS RATHER THAN BY
TECHNICAL RULES, CONCERNING TITLE.  TYLER V. UNITED STATES, 281 U.S.
497, 503. 

IT FOLLOWS THAT, SAVE HER RIGHT TO INCOME, MRS. SCALES, AFTER HER
RELINQUISHMENT, JANUARY 11, 1929, AND AT THE TIME OF HER DEATH, HAD NO
ESTATE OR INTEREST IN THE SECURITIES HELD BY THE TRUSTEE.  THERE IS NO
BASIS FOR APPLICATION OF THE FICTION MOBILIA SEQUUNTUR PERSONAM. 
WACHOVIA TRUST CO. V. DOUGHTON, 272 U.S. 567, 575.  BROOKE V. NORFOLK,
277 U.S. 27, 29.  SAFE DEPOSIT & T. CO. V. VIRGINIA, 280 U.S. 83, 92,
94.  MCMURTRY V. STATE, 111 CONN. 594.  ESTATE OF BOWDITCH, 189 CAL.
377.  MATTER OF CANDA, 197 APP. DIV. 597; 189 N.Y.S. 917.  CF. BULLEN
V. WISCONSIN, 240 U.S. 625.  TENNESSEE MAY NOT IMPOSE THE INHERITANCE
TAX CLAIMED IN THIS SUIT BY ITS COMMISSIONER OF FINANCE AND TAXATION. 
MOREOVER, IF CONTRARY TO THE INDENTURE AS ABOVE CONSTRUED, IT SHOULD
BE HELD THAT AT THE TIME OF HER DEATH MRS. SCALES IN ADDITION TO HAVING
POWER OF APPOINTMENT BY WILL OWNED AN INTEREST IN THE TRUST PROPERTY,
TENNESSEE WOULD NEVERTHELESS BE WITHOUT POWER TO IMPOSE A TAX ON THE
TRANSFER OF THAT INTEREST BECAUSE THE INTANGIBLES IN QUESTION HAD NO
SITUS IN THAT STATE.    INTANGIBLES, LIKE TANGIBLES, MAY BE SO HELD AND
USED OUTSIDE THE STATE OF THE DOMICIL OF THE OWNER AS TO BECOME TAXABLE
IN THE STATE WHERE KEPT.  SEE E.G. NEW ORLEANS V. STEMPEL, 175 U.S.
309.  BRISTOL V. WASHINGTON COUNTY, 177 U.S. 133, 143 ET SEQ. STATE
BOARD OF ASSESSORS V. COMPTOIR NATIONAL, 191 U.S. 388.  SCOTTISH UNION
& NAT. INS. CO. V. BOWLAND, 196 U.S. 611, 619-620.  METROPOLITAN LIFE
INS. CO. V. NEW ORLEANS, 205 U.S. 395, 402.  LIVERPOOL & L. & G. INS.
CO. V. ORLEANS ASSESSORS, 221 U.S. 346, 353.  THE GENERAL RULE OF
MOBILIA SEQUUNTUR PERSONAM MUST YIELD TO THE ESTABLISHED FACT OF LEGAL
OWNERSHIP, ACTUAL PRESENCE AND CONTROL IN A STATE OTHER THAN THAT OF
THE DOMICIL OF THE OWNER.  THE PHRASE "BUSINESS SITUS" AS USED TO
SUPPORT JURISDICTION OF A STATE OTHER THAN THAT OF THE DOMICIL OF THE
OWNER TO IMPOSE TAXES ON INTANGIBLE PERSONAL PROPERTY IS A METAPHORICAL
EXPRESSION OF VAGUE SIGNIFICATION; ITS MEANING IS NOT LIMITED TO
INVESTMENT OR ACTUAL USE AS AN INTEGRAL PART OF A BUSINESS OR ACTIVITY,
BUT MAY EXTEND TO THE EXECUTION OF TRUSTS SUCH AS THOSE CREATED BY THE
INDENTURE AND IMPOSED ON THE TRUSTEE IN THIS CASE.  DEGANAY V. LEDERER,
250 U.S. 376, 381-382.  NEW YORK EX REL. WHITNEY V. GRAVES, SUPRA, 372
ET SEQ.  WHEELING STEEL CORP. V. FOX, SUPRA, 211.  FIRST BANK STOCK
CORP. V. MINNESOTA, 301 U.S. 234. 

THE STOCK CERTIFICATES, BONDS OR OTHER DOCUMENTS EVIDENCING THE
INTANGIBLES CONSTITUTING THE TRUST PROPERTY WERE NEVER HELD IN
TENNESSEE.  NEITHER THEIR ISSUE OR VALIDITY NOR THE ENFORCEMENT OR
TRANSFER, INTER VIVOS OR FROM THE DEAD TO THE LIVING, OF ANY RIGHT
ATTESTED OR SUPPORTED BY THEM WAS AT ALL DEPENDENT ON THE LAWS OF THAT
STATE.  FN5  FROM THE BEGINNING, THE TRUST ESTATE HAS BEEN UNDER THE
PROTECTION OF, AND NECESSARILY THE TRUSTS HAVE BEEN AND ARE BEING
EXECUTED UNDER, THE LAWS OF ALABAMA UNAFFECTED BY THOSE OF ANY OTHER
STATE.  SEE HUTCHISON V. ROSS, 262 N.Y. 381, 394; 187 N.E. 65; SEWALL
V. WILMER, 132 MASS. 131, 137. 

AT LEAST SINCE 1917, MRS. SCALES HAD NO POWER TO REMOVE THE TRUST OR
ANY OF THE TRUST PROPERTY FROM ALABAMA.  EXERTION OF ANY RIGHT OR POWER
RESERVED TO HER BY THE INDENTURE WAS DEPENDENT ON THE LAWS OF ALABAMA
AND NOT UPON OR SUBJECT TO THOSE OF TENNESSEE, WHERE SHE HAPPENED TO
HAVE HER DOMICIL.  WACHOVIA TRUST CO. V. DOUGHTON, UBI SUPRA.  SUBJECT
TO THE LAWS OF ALABAMA, ALL TRANSACTIONS IN WHICH THE TRUST PROPERTIES
WERE CAPABLE OF BEING USED WERE IDENTIFIED WITH THAT STATE.  THE
SECURITIES, HELD THERE NOT ONLY FOR SAFEKEEPING BUT AS WELL FOR
COLLECTION OF INCOME AND PRINCIPAL, AND SUBJECT TO SALE AND
REINVESTMENT OF PROCEEDS, COULD NOT BE MORE COMPLETELY LOCALIZED
ANYWHERE.  DEGANAY V. LEDERER, UBI SUPRA. 

THE JUDGMENT OF THE SUPREME COURT OF TENNESSEE SHOULD BE REVERSED AND
THE CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE
WITH THIS OPINION. 

FN1  TENNESSEE CODE, 1932, SECS. 8835-8847. 

FN2  TENNESSEE CODE, 1932:  "SECTION 1259.  SUBDIVISION 1.  ...  A
TAX IS IMPOSED  ...  UPON TRANSFERS, IN TRUST OR OTHERWISE, OF THE
FOLLOWING PROPERTY, OR ANY INTEREST THEREIN OR ACCRUED INCOME
THEREFROM:  (A)  WHEN THE TRANSFER IS FROM A RESIDENT OF THIS STATE
...  (3)  ALL INTANGIBLE PERSONAL PROPERTY  ...  SECTION 1260. 
SUBDIVISION 2.  ...  THE TRANSFERS ENUMERATED IN SUBDIVISION 1  ...
SHALL BE TAXABLE IF MADE - (A) BY A WILL  ..." 

FN3  ALABAMA GENERAL REVENUE ACT, APPROVED JULY 10, 1935, ART. XII,
C. 2(ACTS 1935, PP. 434 ET SEQ.):  SECTION 347.1:  "...  THERE IS
HEREBY LEVIED AND IMPOSED UPON ALL NET ESTATES PASSING BY WILL, DEVISE,
OR UNDER THE INTESTATE LAWS OF THE STATE OF ALABAMA, OR OTHERWISE,
WHICH ARE LAWFULLY SUBJECT TO THE IMPOSITION OF AN ESTATE TAX BY THE
STATE OF ALABAMA, A TAX EQUAL TO THE FULL AMOUNT OF STATE TAX PAID
PERMISSIBLE WHEN LEVIED BY AND PAID TO THE STATE OF ALABAMA AS A CREDIT
OR DEDUCTION IN COMPUTING ANY FEDERAL ESTATE TAX PAYABLE BY SUCH ESTATE
ACCORDING TO THE ACT OF CONGRESS IN EFFECT, ON THE DATE OF THE DEATH OF
THE DECEDENT, TAXING SUCH ESTATE, WITH RESPECT TO THE ITEMS SUBJECT TO
TAXATION IN ALABAMA.  ..."  SECTION 347.7:  "...  ALL OF THE PROVISIONS
OF THIS CHAPTER SHALL BE APPLICABLE TO SO MUCH OF THE ESTATES OF NON
RESIDENT DECEDENTS AS IS SUBJECT TO ESTATE TAX UNDER THE ACT OF
CONGRESS IN EFFECT AT THE TIME OF THE DEATH OF DECEDENT AS CONSISTS OF
REAL ESTATE OR TANGIBLE PERSONAL PROPERTY LOCATED WITHIN THIS STATE, OR
OTHER ITEM OF PROPERTY OR INTEREST THEREIN LAWFULLY SUBJECT TO THE
IMPOSITION OF AN ESTATE TAX BY THE STATE OF ALABAMA.  ..." 

FN4  ALABAMA CODE, 1928, SECS. 10418-10421. 

FN5  SEE FOOTNOTE 4. 

MR. CHIEF JUSTICE HUGHES, MR. JUSTICE MCREYNOLDS AND MR. JUSTICE
ROBERTS JOIN IN THIS OPINION. 
..END :






















GRAVES V. ELLIOTT, 307 U.S. 383 


NO. 372, OCTOBER TERM, 1937.  ARGUED JANUARY 9, 1939.  REARGUED APRIL
28, 1939.  - DECIDED MAY 29, 1939.  - 274 N.Y. 10, 634 - 8 N.E.2D 42 -
10 N.E.2D 587, REVERSED. 


DECEDENT, WHILE DOMICILED IN COLORADO, TRANSFERRED TO A COLORADO BANK
CERTAIN BONDS TO BE HELD UPON CERTAIN SPECIFIED TRUSTS WITH SPECIFIED
POWERS IN THE TRUSTEE TO ADMINISTER, INVEST, REINVEST, ETC.  THE TRUST
INDENTURE PROVIDED THAT THE TRUSTEE SHOULD PAY OVER THE INCOME TO
DECEDENT'S DAUGHTER FOR LIFE AND AFTERWARD TO THE DAUGHTER'S CHILDREN
UNTIL EACH HAD REACHED THE AGE OF TWENTY-FIVE YEARS, WHEN A
PROPORTIONATE SHARE OF THE PRINCIPAL OF THE TRUST FUND WAS TO BE PAID
OVER TO SUCH CHILD.  IN DEFAULT OF SUCH CHILDREN THE PRINCIPAL WAS TO
REVERT TO DECEDENT AND PASS UNDER HER WILL.  SHE RESERVED THE RIGHT TO
REMOVE THE TRUSTEE, TO CHANGE ANY BENEFICIARY OF THE TRUST, AND TO
REVOKE THE TRUST AND REVEST HERSELF WITH THE TITLE TO THE PROPERTY, THE
TRUSTEE IN THAT EVENT UNDERTAKING TO ASSIGN AND DELIVER TO HER ALL THE
SECURITIES THEN CONSTITUTING THE TRUST FUND.  AFTER CREATING THE TRUST
DECEDENT BECAME AND REMAINED A DOMICILED RESIDENT OF NEW YORK, WHERE
SHE DIED WITHOUT APPOINTING NEW BENEFICIARIES OF THE TRUST OR REVOKING
IT.  MEANWHILE, THE TRUSTEE CONTINUED TO ADMINISTER THE TRUST AND HELD
POSSESSION OF THE BONDS EVIDENCING THE INTANGIBLE PROPERTY OF THE
FUND.  FOLLOWING HER DEATH THE TAXING AUTHORITIES OF COLORADO ASSESSED
A TAX ON THE TRANSMISSION AT DEATH OF THE TRUST FUND. 

HELD THAT THE STATE OF NEW YORK COULD CONSTITUTIONALLY LEVY A
TRANSFER TAX UPON THE RELINQUISHMENT AT DEATH OF THE POWER OF
REVOCATION, MEASURED BY THE VALUE OF THE INTANGIBLES.  CURRY V.
MCCANLESS, ANTE, P. 357.  P. 386. 

GRAVES ET AL., COMMISSIONERS CONSTITUTING THE STATE TAX COMMISSION OF
NEW YORK, V. ELLIOTT ET AL. 

CERTIORARI TO THE SURROGATES' COURT OF THE COUNTY AND STATE OF NEW
YORK. 

CERTIORARI, 305 U.S. 667, TO REVIEW A JUDGMENT, ENTERED ON REMITTITUR
FROM THE COURT OF APPEALS OF NEW YORK, WHICH REVERSED AN ORDER OF THE
SURROGATES' COURT CONFIRMING A TRANSFER TAX ASSESSMENT.  248 APP. DIV.
713; 153 MISC. 70. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO SAY WHETHER THE STATE OF NEW YORK MAY
CONSTITUTIONALLY TAX THE RELINQUISHMENT AT DEATH, BY A DOMICILED
RESIDENT OF THE STATE, OF A POWER TO REVOKE A TRUST OF INTANGIBLES HELD
BY A COLORADO TRUSTEE. 

DECEDENT IN 1924, WHILE A RESIDENT OF COLORADO, TRANSFERRED AND
DELIVERED TO DENVER NATIONAL BANK OF DENVER, COLORADO, CERTAIN BONDS TO
BE HELD UPON SPECIFIED TRUSTS WITH SPECIFIED POWERS IN THE TRUSTEE TO
ADMINISTER THE TRUST AND TO INVEST AND REINVEST THE TRUST FUND.  SO FAR
AS NOW MATERIAL, THE TRUST INDENTURE PROVIDED THAT THE TRUSTEE SHOULD
PAY OVER THE INCOME TO DECEDENT'S DAUGHTER FOR LIFE AND AFTERWARD TO
THE DAUGHTER'S CHILDREN UNTIL EACH HAD REACHED THE AGE OF TWENTY-FIVE
YEARS, WHEN A PROPORTIONATE SHARE OF THE PRINCIPAL OF THE TRUST FUND
WAS TO BE PAID OVER TO SUCH CHILD.  IN DEFAULT OF SUCH CHILDREN THE
PRINCIPAL WAS TO REVERT TO DECEDENT AND PASS UNDER HER WILL.  SHE
RESERVED THE RIGHT TO REMOVE THE TRUSTEE, TO CHANGE ANY BENEFICIARY OF
THE TRUST, AND TO REVOKE THE TRUST AND REVEST HERSELF WITH THE TITLE TO
THE PROPERTY, THE TRUSTEE IN THAT EVENT UNDERTAKING TO ASSIGN AND
DELIVER TO HER ALL THE SECURITIES THEN CONSTITUTING THE TRUST FUND. 

AFTER CREATING THE TRUST DECEDENT BECAME AND REMAINED A DOMICILED
RESIDENT OF NEW YORK, WHERE SHE DIED IN 1931 WITHOUT APPOINTING NEW
BENEFICIARIES OF THE TRUST OR REVOKING IT.  UNTIL HER DEATH THE TRUST
WAS ADMINISTERED BY THE BANK AT ITS OFFICES IN COLORADO, AND THE PAPER
EVIDENCES OF THE INTANGIBLES - CORPORATE BONDS - COMPRISING THE TRUST
FUND REMAINED IN THE POSSESSION OF THE TRUSTEE IN COLORADO. 

FOLLOWING HER DEATH THE TAXING AUTHORITIES OF COLORADO ASSESSED A TAX
ON THE TRANSMISSION AT DEATH OF THE TRUST FUND.  PROCEEDINGS IN NEW
YORK FOR THE ASSESSMENT OF ESTATE TAXES ON THE TRANSFER OF THE TRUST
FUND AT DECEDENT'S DEATH RESULTED IN AN ORDER OF THE SURROGATE
CONFIRMING THE ASSESSMENT UNDER SECS. 249-N, 249-R OF THE NEW YORK TAX
LAW.  CONSOL.  LAWS, CH. 60.  FN1  ON APPEAL THE NEW YORK COURT OF
APPEALS REVERSED THE ORDER OF THE SURROGATE, HOLDING THAT SO FAR AS THE
PROVISIONS OF THE NEW YORK TAX LAW PURPORT TO INCLUDE THE INTANGIBLE
TRUST PROPERTY IN THE GROSS ESTATE THEY INFRINGE DUE PROCESS BY
IMPOSING A TAX ON PROPERTY WHOSE SITUS IS OUTSIDE THE STATE.  274 N.Y.
10.  WE GRANTED CERTIORARI NOVEMBER 14, 1938, THE QUESTION INVOLVED
BEING OF PUBLIC IMPORTANCE. 

THE ESSENTIAL ELEMENTS OF THE QUESTION PRESENTED HERE ARE THE SAME AS
THOSE CONSIDERED IN CURRY V. MCCANLESS, ANTE, P. 357.  AS IS THERE
POINTED OUT, THE POWER OF DISPOSITION OF PROPERTY IS THE EQUIVALENT OF
OWNERSHIP.  IT IS A POTENTIAL SOURCE OF WEALTH AND ITS EXERCISE IN THE
CASE OF INTANGIBLES IS THE APPROPRIATE SUBJECT OF TAXATION AT THE PLACE
OF THE DOMICILE OF THE OWNER OF THE POWER.  THE RELINQUISHMENT AT
DEATH, IN CONSEQUENCE OF THE NON-EXERCISE IN LIFE, OF A POWER TO REVOKE
A TRUST CREATED BY A DECEDENT IS LIKEWISE AN APPROPRIATE SUBJECT OF
TAXATION.  SALTONSTALL V. SALTONSTALL, 276 U.S. 260; REINECKE V.
NORTHERN TRUST CO., 278 U.S. 339; HELVERING V. CITY BANK FARMERS TRUST
CO., 296 U.S. 85; CF. KEENEY V. NEW YORK, 222 U.S. 525; BULLEN V.
WISCONSIN, 240 U.S. 625; CHASE NATIONAL BANK V. UNITED STATES, 278 U.S.
327; TYLER V. UNITED STATES, 281 U.S. 497; GUARANTY TRUST CO. V.
BLODGETT, 287 U.S. 509; PORTER V. COMMISSIONER, 288 U.S. 436. 

FOR REASONS STATED IN OUR OPINION IN CURRY V. MCCANLESS, SUPRA, WE
CANNOT SAY THAT THE LEGAL INTEREST OF DECEDENT IN THE INTANGIBLES HELD
IN TRUST IN COLORADO WAS SO DISSOCIATED FROM HER PERSON AS TO BE BEYOND
THE TAXING JURISDICTION OF THE STATE OF HER DOMICILE MORE THAN HER
OTHER RIGHTS IN INTANGIBLES.  HER RIGHT TO REVOKE THE TRUST AND TO
DEMAND THE TRANSMISSION TO HER OF THE INTANGIBLES BY THE TRUSTEE AND
THE DELIVERY TO HER OF THEIR PHYSICAL EVIDENCES WAS A POTENTIAL SOURCE
OF WEALTH, HAVING THE ATTRIBUTES OF PROPERTY.  AS IN THE CASE OF ANY
OTHER INTANGIBLES WHICH SHE POSSESSED, CONTROL OVER HER PERSON AND
ESTATE AT THE PLACE OF HER DOMICILE AND HER DUTY TO CONTRIBUTE TO THE
SUPPORT OF GOVERNMENT THERE AFFORD ADEQUATE CONSTITUTIONAL BASIS FOR
IMPOSITION OF A TAX MEASURED BY THE VALUE OF THE INTANGIBLES
TRANSMITTED OR RELINQUISHED BY HER AT DEATH.  CURRY V. MCCANLESS,
SUPRA, AND CASES CITED.  REVERSED. 

FN1  SEC. 249-N IMPOSES A TAX AT SPECIFIED RATES UPON THE NET ESTATE
OF EVERY PERSON DYING A RESIDENT OF THE STATE.  FOR THE PURPOSE OF
FIXING THE AMOUNT OF THE NET ESTATE, SEC. 249-R INCLUDES IN THE VALUE
OF THE GROSS ESTATE OF THE DECEDENT THE VALUE OF ALL PROPERTY OF THE
DECEDENT "EXCEPT REAL PROPERTY SITUATED AND TANGIBLE PERSONAL PROPERTY
HAVING AN ACTUAL SITUS OUTSIDE THIS STATE," 

"3.  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS
AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, IN CONTEMPLATION OF
OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH, INCLUDING A TRANSFER UNDER WHICH THE TRANSFEROR HAS RETAINED FOR
HIS LIFE OR ANY PERIOD NOT ENDING BEFORE HIS DEATH (A) THE POSSESSION
OR ENJOYMENT OF, OR THE INCOME FROM, THE PROPERTY OR (B) THE RIGHT TO
DESIGNATE THE PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE
INCOME THEREFROM; ... 

"4.  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS
AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, WHERE THE ENJOYMENT
THEREOF WAS SUBJECT AT THE DATE OF HIS DEATH TO ANY CHANGE THROUGH THE
EXERCISE OF A POWER, EITHER BY THE DECEDENT ALONE OR IN CONJUNCTION
WITH ANY PERSON, TO ALTER, AMEND, OR REVOKE,  ..." 

MR. CHIEF JUSTICE HUGHES, DISSENTING. 

I THINK THAT THE DECISION IN THIS CASE PUSHES THE FICTION OF MOBILIA
SEQUUNTUR PERSONAM TO AN UNWARRANTED EXTREME AND THUS UNNECESSARILY
PRODUCES AN UNJUST RESULT. 

THE SAME PROPERTY IS SUBJECTED TO AN INHERITANCE OR TRANSFER TAX BY
TWO STATES.  THE DECEDENT, IN 1924, WHILE A RESIDENT OF COLORADO,
CREATED A TRUST IN CERTAIN SECURITIES, CONSISTING OF FEDERAL, STATE AND
OTHER BONDS.  THE TRUSTEE WAS A DENVER BANK.  THE INCOME OF THE TRUST
PROPERTY WAS PAYABLE TO THE SETTLOR'S DAUGHTER DURING HER LIFE AND
THEREAFTER TO HER CHILDREN UNTIL THEY RESPECTIVELY ARRIVED AT THE AGE
OF TWENTY-FIVE YEARS, WHEN THEY WERE TO HAVE THE PRINCIPAL IN EQUAL
SHARES.  IF THE DAUGHTER LEFT NO CHILDREN, THE TRUST ESTATE WAS TO
REVERT TO THE SETTLOR.  THE SETTLOR RESERVED THE RIGHT TO CHANGE THE
BENEFICIARIES, TO REVOKE THE TRUST, AND TO REMOVE THE TRUSTEE.  THE
LEGAL TITLE TO THE SECURITIES WAS THUS VESTED IN THE TRUSTEE, WHICH
ENTERED UPON ITS ADMINISTRATION AND CONTINUED IT BOTH BEFORE AND AFTER
THE SETTLOR'S DEATH.  THERE WAS NO REVOCATION OF THE TRUST OR CHANGE OF
BENEFICIARY OR TRUSTEE, OR DIVERSION OF THE INCOME FROM THE USE OF THE
DAUGHTER, AND THE BENEFICIARIES WERE ALL LIVING WHEN THE SETTLOR DIED. 

PRIOR TO HER DEATH, THE SETTLOR REMOVED TO NEW YORK.  THE TRUST RES
CONTINUED TO BE IN COLORADO.  AN INHERITANCE TAX UPON THE DECEDENT'S
PROPERTY SITUATED IN COLORADO, AND INCLUDING THE BONDS HELD THERE IN
TRUST, WAS IMPOSED BY THAT STATE.  THE NEW YORK COURT OF APPEALS HAS
HELD, AND I THINK RIGHTLY, THAT THIS TRUST PROPERTY WAS NOT SUBJECT TO
AN ESTATE TAX IN NEW YORK.  274 N.Y. 10. 

IT IS TRUE THAT THE CONSTITUTION OF THE UNITED STATES CONTAINS NO
SPECIFIC PROVISION AGAINST DOUBLE TAXATION, BUT THE CONSTITUTION DOES
IMPOSE LIMITATIONS UPON THE TAXING POWER OF A STATE WHICH I THINK ARE
APPLICABLE AND SHOULD PREVENT A DOUBLE EXACTION IN THIS CASE. 

THE PRINCIPLE GOVERNING THE APPLICATION OF THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT TO THE STATE'S TAXING POWER IS WELL
ESTABLISHED.  THAT PRINCIPLE, AS REPEATEDLY DECLARED BY THIS COURT, AND
APPARENTLY NOT DISPUTED NOW, IS THAT IT IS "ESSENTIAL TO THE VALIDITY
OF A TAX THAT THE PROPERTY SHALL BE WITHIN THE TERRITORIAL JURISDICTION
OF THE TAXING POWER."  UNION TRANSIT CO. V. KENTUCKY, 199 U.S. 194,
204.  WHAT IS MEANT IS THAT DUE PROCESS IN TAXATION REQUIRES THAT THE
PROPERTY SHALL BE ATTRIBUTABLE TO THE DOMAIN OF THE STATE WHICH IMPOSES
THE TAX.  THIS RULE HAS ITS MOST FAMILIAR ILLUSTRATION IN THE CASE OF
LAND WHICH, TO BE TAXABLE, MUST BE WITHIN THE LIMITS OF THE TAXING
STATE.  THE FACT THAT THE OWNER IS DOMICILED WITHIN A STATE, IF THE
LAND IS ELSEWHERE, DOES NOT GIVE THE STATE OF HIS DOMICILE THE
AUTHORITY TO TAX.  IN UNION TRANSIT CO. V. KENTUCKY, SUPRA, WE HELD
THAT THE PRINCIPLE AGAINST THE TAXABILITY OF LAND WITHIN ANOTHER
JURISDICTION APPLIES WITH EQUAL COGENCY TO TANGIBLE PERSONAL PROPERTY
HAVING AN ACTUAL SITUS OUTSIDE THE STATE'S DOMAIN.  TRUE, THE FICTION
EXPRESSED IN THE MAXIM MOBILIA SEQUUNTUR PERSONAM MIGHT HAVE SEEMED TO
JUSTIFY SUCH A TAX ON PERSONAL PROPERTY BY THE STATE OF THE OWNER'S
DOMICILE.  BUT AS SAID IN PULLMAN'S CAR CO. V. PENNSYLVANIA, 141 U.S.
18, 22:  "THE OLD RULE, EXPRESSED IN THE MAXIM MOBILIA SEQUUNTUR
PERSONAM, BY WHICH PERSONAL PROPERTY WAS REGARDED AS SUBJECT TO THE LAW
OF THE OWNER'S DOMICILE, GREW UP IN THE MIDDLE AGES, WHEN MOVABLE
PROPERTY CONSISTED CHIEFLY OF GOLD AND JEWELS, WHICH COULD BE EASILY
CARRIED BY THE OWNER FROM PLACE TO PLACE, OR SECRETED IN SPOTS KNOWN
ONLY TO HIMSELF.  IN MODERN TIMES, SINCE THE GREAT INCREASE IN AMOUNT
AND VARIETY OF PERSONAL PROPERTY, NOT IMMEDIATELY CONNECTED WITH THE
PERSON OF THE OWNER, THAT RULE HAS YIELDED MORE AND MORE TO THE LEX
SITUS, THE LAW OF THE PLACE WHERE THE PROPERTY IS KEPT AND USED." 

THE RULE THUS ESTABLISHED THAT THE STATE OF THE OWNER'S DOMICILE
CANNOT TAX TANGIBLE PERSONAL PROPERTY WHICH HAS AN ACTUAL SITUS IN
ANOTHER STATE WAS APPLIED BY THIS COURT TO AN INHERITANCE OR TRANSFER
TAX IN THE CASE OF FRICK V. PENNSYLVANIA, 268 U.S. 473.  THERE THE
COURT HELD, WITHOUT DIVISION, THAT TO TAX THE TRANSFER OF TANGIBLE
PERSONAL PROPERTY HAVING AN ACTUAL SITUS IN ANOTHER STATE "CONTRAVENES
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT."  THE IMPORTANCE OF
THIS LIMITATION OF STATE POWER IS OBVIOUS IN VIEW OF THE INTERRELATION
OF THE STATES UNDER THE BOND OF THE CONSTITUTION, AND OF THE
OPPORTUNITIES FOR OPPRESSIVE TAXATION IF STATES ATTEMPT TO TAX PROPERTY
OR TRANSFERS OF PROPERTY NOT PROPERLY ATTRIBUTABLE TO THEIR OWN
DOMAIN.  "THE LIMITS OF STATE POWER ARE DEFINED IN VIEW OF THE RELATION
OF THE STATES TO EACH OTHER IN THE FEDERAL UNION."  BURNET V. BROOKS,
288 U.S. 378, 401. 

BUT WHILE THE QUESTION WAS THUS SETTLED AS TO TANGIBLE PERSONAL
PROPERTY, THE FICTION OF MOBILIA SEQUUNTUR PERSONAM STILL PERSISTS IN A
GENERAL SENSE AS TO INTANGIBLES, EMBRACING SECURITIES, THUS PERMITTING
TAXATION BY THE STATE OF THE OWNER'S DOMICILE ALTHOUGH THE OWNER MAY
KEEP THE SECURITIES IN ANOTHER STATE.  BLODGETT V. SILBERMAN, 277 U.S.
1, 9, 14, 16.  THIS GENERAL RULE PROCEEDS IN THE VIEW THAT INTANGIBLES,
AS SUCH, ARE INCAPABLE OF AN ACTUAL PHYSICAL LOCATION AND THAT TO
ATTRIBUTE TO THEM A "SITUS" IS TO INDULGE IN A METAPHOR.  STILL, IN
CERTAIN CIRCUMSTANCES THE USE OF THE METAPHOR IS APPROPRIATE.  NEW YORK
EX REL. WHITNEY V. GRAVES, 299 U.S. 366, 372. 

THE FACT THAT THIS RULE OF CONVENIENCE MAY GENERALLY BE APPLIED DOES
NOT JUSTIFY THE CONCLUSION THAT INTANGIBLES CAN NEVER BE SO EFFECTIVELY
LOCALIZED IN ANOTHER STATE AS TO WITHDRAW THEM FROM THE TAXING POWER OF
THE DOMICILIARY STATE.  THE PROPER USE OF A LEGAL FICTION IS TO PREVENT
INJUSTICE AND IT SHOULD NOT BE UNNECESSARILY EXTENDED SO AS TO WORK AN
INJURY.  UNION TRANSIT CO. V. KENTUCKY, SUPRA, P. 208. 

AS WE SAID IN SAFE DEPOSIT & TRUST CO. V. VIRGINIA, 280 U.S. 83, 92,
THE FICTION OF MOBILIA SEQUUNTUR PERSONAM "MUST YIELD TO ESTABLISHED
FACT OF LEGAL OWNERSHIP, ACTUAL PRESENCE AND CONTROL ELSEWHERE, AND
OUGHT NOT TO BE APPLIED IF SO TO DO WOULD RESULT IN INESCAPABLE AND
PATENT INJUSTICE, WHETHER THROUGH DOUBLE TAXATION OR OTHERWISE."  IN
THAT CASE, A RESIDENT OF VIRGINIA HAD TRANSFERRED CERTAIN SECURITIES TO
THE SAFE DEPOSIT & TRUST COMPANY OF BALTIMORE IN TRUST FOR HIS MINOR
SONS.  THE DONOR RESERVED TO HIMSELF A POWER OF REVOCATION.  HE DIED
WITHOUT HAVING EXERCISED IT. VIRGINIA UNDERTOOK TO IMPOSE AN AD VALOREM
TAX UPON THE ENTIRE CORPUS OF THE TRUST ESTATE AND THIS COURT HELD THAT
AS THE SECURITIES WERE SUBJECT TO TAXATION IN MARYLAND, WHERE THEY WERE
IN THE ACTUAL POSSESSION OF THE TRUSTEE, THE HOLDER OF THE LEGAL TITLE,
THEY HAD NO LEGAL SITUS FOR TAXATION IN VIRGINIA "UNLESS THE LEGAL
FICTION MOBILIA SEQUUNTUR PERSONAM WAS (IS) APPLICABLE AND
CONTROLLING."  THE VIRGINIA COURT HAD HELD THAT THE TWO BENEFICIARIES
IN CONJUNCTION WITH THE ADMINISTRATOR OF THE FATHER'S ESTATE REALLY
OWNED THE TRUST FUND AND THAT BY REASON OF THE FICTION ITS TAXABLE
SITUS FOLLOWED THEM.  THIS COURT REFUSED TO ACCEPT THAT VIEW AND DENIED
THE RIGHT OF TAXATION TO VIRGINIA, SAYING:  "IT WOULD BE UNFORTUNATE,
PERHAPS AMAZING, IF A LEGAL FICTION ORIGINALLY INVENTED TO PREVENT
PERSONALTY FROM ESCAPING JUST TAXATION, SHOULD COMPEL US TO ACCEPT THE
IRRATIONAL VIEW THAT THE SAME SECURITIES WERE WITHIN TWO STATES AT THE
SAME INSTANT AND BECAUSE OF THIS TO UPHOLD A DOUBLE AND OPPRESSIVE
ASSESSMENT."    THAT WAS A CASE OF AN AD VALOREM PROPERTY TAX.  BUT THE
POWER TO IMPOSE AN INHERITANCE OR TRANSFER TAX, AS WELL AS THE POWER TO
IMPOSE AN AD VALOREM PROPERTY TAX, DEPENDS UPON THE PROPERTY BEING
ATTRIBUTABLE TO THE DOMAIN OF THE TAXING STATE.  FRICK V. PENNSYLVANIA,
SUPRA, P. 492. 

IN THE INSTANT CASE, THE LEGAL TITLE TO THE PROPERTY IN QUESTION IS
IN THE COLORADO TRUSTEE, THE TRUST WAS CREATED UNDER THE COLORADO LAW
AND ITS ADMINISTRATION IS SUBJECT TO THE CONTROL OF COLORADO.  TO SAY
THAT THESE SECURITIES ARE NOT AS EFFECTIVELY LOCALIZED IN COLORADO, AS
WERE THE FURNITURE, PICTURES AND OTHER ART TREASURES OF MR. FRICK IN
NEW YORK AND MASSACHUSETTS, WHERE ALONE THEIR TRANSFER COULD BE TAXED,
WOULD BE TO IGNORE REALITIES AND TO MAKE IMPORTANT RIGHTS TURN UPON A
VERBAL DISTINCTION. 

UPON WHAT GROUND THEN IS IT MAINTAINED THAT THESE SECURITIES ARE
WITHIN THE TAXING POWER OF NEW YORK?  SOLELY, IT APPEARS, UPON THE
GROUND THAT THE INDENTURE CREATING THE TRUST IN COLORADO RESERVED TO
THE SETTLOR A POWER OF REVOCATION.  THIS UNEXERCISED POWER IS TREATED
AS CARRIED BY THE SETTLOR INTO NEW YORK AND HENCE AS BRINGING IN ITS
TRAIN THE ENTIRE CORPUS OF THE TRUST PROPERTY.  THAT RESULTS, AS
ALREADY NOTED, IN GIVING THE FICTION AN OPPRESSIVE OPERATION.  BUT,
ASIDE FROM THAT PRACTICAL ASPECT, IF THROUGH THE TRUST IN COLORADO THE
SECURITIES HAVE BEEN EFFECTIVELY LOCALIZED IN THAT STATE, WHY SHOULD AN
UNEXERCISED POWER OF REVOCATION ALTER THEIR STATUS?  MR. FRICK DID NOT
EVEN NEED TO REVOKE AN INSTRUMENT, FOR AT ANY TIME HE COULD HAVE
REMOVED HIS FURNITURE AND ART TREASURES FROM NEW YORK AND MASSACHUSETTS
TO HIS DOMICILE IN PENNSYLVANIA.  BUT THAT OBVIOUS CONTROL, WHILE
UNEXERCISED, DID NOT DETRACT FROM THE TAXING POWER OF THE STATES WHERE
THE PROPERTY WAS, OR PERMIT TAXATION BY THE DOMICILIARY STATE. 

IT IS SAID THAT THE POWER OF DISPOSITION IS EQUIVALENT TO OWNERSHIP,
AND THAT ITS RELINQUISHMENT AT DEATH IS AN APPROPRIATE SUBJECT OF
TAXATION.  THE CASE OF FEDERAL TAXATION IS NOT ANALOGOUS AS THERE ARE
NO STATE BOUNDARIES TO BE CONSIDERED WHEN THE FEDERAL TAX IS LAID.  NOR
ARE STATE CASES RELEVANT WHEN THERE IS NO ATTEMPTED EXTRATERRITORIAL
APPLICATION OF A STATE STATUTE, AND IT IS NOT NECESSARY AGAIN TO REVIEW
THE AUTHORITIES CITED IN THE DISSENTING OPINION IN CURRY V. MCCANLESS,
ANTE, P. 357.  FOR THE PRESENT PURPOSE IT IS SUFFICIENT TO NOTE THAT
UNDER THE PRINCIPLE ESTABLISHED IN FRICK V. PENNSYLVANIA, IT IS NOT
ENOUGH TO SAY THAT A POWER OF DISPOSITION IS EQUIVALENT TO OWNERSHIP,
FOR OWNERSHIP BY A RESIDENT OF A STATE GIVES THAT STATE NO AUTHORITY TO
TAX PROPERTY NOT ATTRIBUTABLE TO ITS DOMAIN.  MR. FRICK OWNED HIS
PROPERTY IN NEW YORK AND MASSACHUSETTS BUT STILL HIS OWN STATE OF
PENNSYLVANIA COULD NOT TAX ITS TRANSFER. 

THE FUNDAMENTAL QUESTION IS THUS NOT ONE OF A RESERVED BUT
UNEXERCISED POWER OF REVOCATION OR OF AN ULTIMATE CONTROL IN AN OWNER,
BUT WHETHER SECURITIES, CLASSED AS INTANGIBLES, ARE NECESSARILY AND IN
ALL CIRCUMSTANCES SUBJECT TO A DIFFERENT RULE FROM THAT OBTAINING IN
THE CASE OF TANGIBLE PERSONAL PROPERTY.  IT IS NOT PERCEIVED THAT THERE
IS A SOUND BASIS FOR SUCH AN INVARIABLE DISTINCTION, WHICH IS FOREIGN
TO COMMON THOUGHT AND PRACTICAL NEEDS.  WHEN CONFRONTED WITH THE
QUESTION AS TO TANGIBLE PERSONAL PROPERTY, WE DID NOT HESITATE TO LIMIT
THE APPLICATION OF THE FICTION, AND IT IS REGRETTABLE THAT WE CAN NOT
DEAL WITH THE FICTION IN A SIMILAR FASHION IN SUCH A CASE AS THIS,
WHERE WE HAVE AN EFFECTIVE LOCALIZATION OF SECURITIES THROUGH A TRUST
CREATED IN A STATE OTHER THAN THAT OF THE SETTLOR'S DOMICILE AT THE
TIME OF DEATH, AND WHERE IN THAT OTHER STATE THE TRUSTEE HOLDS TITLE
AND POSSESSION AND HAS BEEN AND IS ADMINISTERING THE TRUST SUBJECT TO
ITS LAWS. 

I THINK THAT THE JUDGMENT OF THE COURT OF APPEALS OF NEW YORK SHOULD
BE AFFIRMED. 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER AND MR. JUSTICE ROBERTS
CONCUR IN THIS OPINION. 
..END :















SOUTHERN PACIFIC CO. V. U.S., 307 U.S. 393 


NO. 613.  ARGUED MARCH 29, 1939.  - DECIDED MAY 29, 1939.  - 87 CT. CLS.
442, AFFIRMED. 


1.  WHERE A LAND GRANT RAILROAD, HAVING AN ESTABLISHED ROUTE PARTLY
LAND-GRANT AIDED BETWEEN TWO TERMINAL POINTS, DEVELOPED AN ALTERNATIVE
ROUTE WHICH IN PART WAS IDENTICAL WITH THE ORIGINAL ROUTE AND TO THAT
EXTENT LAND-GRANT AIDED, HELD THAT THE GOVERNMENT WAS ENTITLED, UNDER
ITS LAND-GRANT ACT CONTRACT, TO COMPENSATE THE RAILROAD FOR TERMINAL-TO
TERMINAL SERVICE ON THE BASIS OF THE LOWER TARIFF AVAILABLE ON THE
ALTERNATIVE ROUTE LESS THE HIGHER LAND GRANT PERCENTAGE DEDUCTION
APPLICABLE ON THE ORIGINAL ROUTE, IRRESPECTIVE OF WHAT ROUTE WAS
ACTUALLY USED IN SHIPMENT.  PP. 394, 401. 

2.  THIS CONCLUSION IS CONSISTENT WITH THE LONG CONTINUED
ADMINISTRATIVE CONSTRUCTION GIVEN LAND GRANT CONTRACTS.  P. 401. 

3.  DOUBTS IN RESPECT OF THE INTERPRETATION OF PUBLIC GRANTS ARE TO
BE RESOLVED IN FAVOR OF THE GOVERNMENT.  P. 401. 

SOUTHERN PACIFIC CO. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 306 U.S. 625, TO REVIEW A JUDGMENT DISMISSING THE
PETITION IN A SUIT BROUGHT BY THE RAILROAD COMPANY AGAINST THE UNITED
STATES TO RECOVER SUMS CLAIMED TO BE DUE ON ACCOUNT OF TRANSPORTATION
CHARGES. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE RIGHT OF THE GOVERNMENT TO DEDUCT FROM THE
PUBLIC TERMINAL-TO-TERMINAL TARIFFS OF A RAILROAD OVER A ROUTE, PARTLY
OF LAND-GRANT AIDED MILEAGE, IDENTICAL WITH PART OF THE MILEAGE OF
ANOTHER EARLIER CONSTRUCTED ROUTE OF THE SAME ROAD BETWEEN THE SAME
TERMINALS, SUMS BASED UPON THE HIGHER PROPORTION OF LAND-GRANT AIDED
MILEAGE IN THIS LATTER ROUTE.  ON ACCOUNT OF THE IMPORTANCE OF THE
QUESTION IN ADMINISTRATION, CERTIORARI WAS GRANTED.  FN1 

THE CARRIER OWNS AND OPERATES TWO LINES OF RAILROAD BETWEEN PORTLAND,
OREGON, AND ROSEVILLE, CALIFORNIA, AND DAVIS, CALIFORNIA, BOTH SOUTHERN
POINTS BEING ON THE CENTRAL PACIFIC, NOW THE SOUTHERN PACIFIC, RAILROAD
IN CALIFORNIA.  FROM THE CALIFORNIA JUNCTIONS, THERE IS DIRECT
CONNECTION OVER THE SAME SOUTHERN PACIFIC RAILS INTO SAN FRANCISCO. 
THE OLDER LINE IS CALLED THE SISKIYOU, THE NEWER THE CASCADE ROUTE. 
FOR A CONSIDERABLE PORTION OF THE DISTANCE BETWEEN PORTLAND AND SAN
FRANCISCO, THE TWO ROUTES ARE IDENTICAL.  THERE ARE TWO DIFFERENCES;
ONE IS BETWEEN EUGENE, OREGON, AND BLACK BUTTE, CALIFORNIA.  ON THE
WEST THE SISKIYOU ROUTE PASSES THROUGH GRANT'S PASS AND SISKIYOU, A
DISTANCE OF 300 MILES, TO CONNECT EUGENE AND BLACK BUTTE.  THE EASTERN,
OR CASCADE ROUTE, JOINS THE SAME TWO POINTS BY A SHORTER (275 MILES)
LINE THROUGH NATRON AND KLAMATH FALLS.  THE SECOND DEVIATION IS BETWEEN
TEHAMA, CALIFORNIA, AND DAVIS AND ROSEVILLE RESPECTIVELY.  HERE THE
SISKIYOU ROUTE IS TO THE EAST, 104 MILES LONG, AND THE CASCADE ROUTE TO
THE WEST, 110 MILES. 

WHERE THE ROUTES ARE IDENTICAL, SOME OF THE MILEAGE IS LAND-GRANT
AIDED.  SOME IS NOT.  THE MILEAGE OF THE SISKIYOU WHICH IS DIFFERENT
FROM THE CASCADE IS LARGELY LAND-GRANT AIDED.  NONE OF THE CASCADE
ROUTE, EXCEPT WHERE IT USES THE SAME RAILS AS THE SISKIYOU, HAS LAND
GRANTS.  BASED ON THE PROPORTION OF AIDED MILEAGE AND THE PERCENTAGE OF
DEDUCTION ALLOWED TO THE GOVERNMENT FROM THE TARIFFS CHARGED PRIVATE
SHIPPERS, THE UNITED STATES, BETWEEN SAN FRANCISCO AND PORTLAND, IS
ENTITLED TO A LAND-GRANT DEDUCTION VIA THE SISKIYOU ROUTE OF 42.792 PER
CENT.  VIA THE CASCADE ROUTE, THE DEDUCTION IS 17.801 PER CENT.  THERE
ARE SLIGHT VARIATIONS FOR EAST PORTLAND. 

DURING DECEMBER, 1931, AND JANUARY, 1932, THE CARRIER TRANSPORTED, IN
BOTH DIRECTIONS, CERTAIN PROPERTY OF THE UNITED STATES ON GOVERNMENT
BILLS OF LADING FROM PORTLAND OR EAST PORTLAND TO SAN FRANCISCO.  NO
DIRECTIONS WERE GIVEN BY THE GOVERNMENT AS TO THE ROUTES OVER WHICH THE
SHIPMENTS WERE TO MOVE.  WHILE BEFORE NOVEMBER 11, 1931, THE TERMINAL
TO-TERMINAL RATES OVER THE TWO ROUTES WERE THE SAME, AFTER THAT DATE
AUTHORIZED REVISIONS RESULTED IN A RATE COMPETITIVE WITH WATER BORNE
COMMERCE OVER THE CASCADE AND A HIGHER RATE OVER THE SISKIYOU.  THESE
PUBLIC TARIFFS WERE SO MUCH LOWER OVER THE CASCADE THAN THEY WERE OVER
THE SISKIYOU ROUTE, THAT THE NET COST TO THE GOVERNMENT, AFTER THE
DEDUCTIONS DEEMED APPLICABLE BY THE RAILROAD, WAS LESS OVER THE CASCADE
THAN IT WAS OVER THE SISKIYOU, DESPITE THE HIGHER PERCENTAGE OF
DEDUCTION ALLOWED THE LATTER ROUTE. 

THE GOVERNMENT WAS BILLED ON THE CASCADE TARIFFS WITH DEDUCTIONS FOR
LAND-GRANT MILEAGE OF ABOUT 17 PER CENT.  IT PAID ON THE BASIS OF THE
CASCADE TARIFFS BUT DEDUCTED ON THE RATIO OF THE LAND-GRANT TO TOTAL
MILES BETWEEN THE TERMINALS ON THE SISKIYOU ROUTE, OR SOME 42 PER CENT.
THE GOVERNMENT CLAIMS THAT IT IS ENTITLED TO THE LOWEST RATE, BETWEEN
THE TERMINALS, LESS THE PERCENTAGE OF DEDUCTION OVER THE ORIGINAL LAND
GRANT AIDED ROUTE.  THE CARRIER PROTESTED AND BROUGHT THIS ACTION IN
THE COURT OF CLAIMS TO RECOVER THE DIFFERENCE BETWEEN THE CASCADE
TARIFFS LESS THE CASCADE RATIO OF LAND-GRANT MILEAGE AND THAT PAID BY
THE GOVERNMENT, THE CASCADE TARIFFS LESS THE SISKIYOU RATIO.  THE COURT
OF CLAIMS, AFTER MAKING SPECIAL FINDINGS OF FACT, ADJUDGED THAT THE
CARRIER WAS NOT ENTITLED TO RECOVER AND DISMISSED ITS PETITION. 

THE GOVERNMENT OBTAINED CONCESSIONS FROM THE ESTABLISHED TARIFFS BY
VIRTUE OF THE ACCEPTANCE BY THE CARRIER OF GRANTS OF LAND, TEN
ALTERNATE SECTIONS PER MILE ON EACH SIDE OF THE LINE, TO AID IN THE
CONSTRUCTION OF A RAILROAD AS DESCRIBED IN THE STATUTE AUTHORIZING THE
CONVEYANCE.  FN2  THIS STATUTE WAS SIMILAR IN FORM TO THE LAND GRANT
CONSTRUED IN BURKE V. SOUTHERN PACIFIC R. CO. FN3 AND UPON COMPLIANCE
WITH ITS REQUIREMENTS BECAME A CONTRACT, "OBLIGATORY ON BOTH"  FN4  THE
CARRIER AND GOVERNMENT.  THE CARRIER AGREED IT SHOULD "BE AND REMAIN A
PUBLIC HIGHWAY FOR THE USE OF THE GOVERNMENT OF THE UNITED STATES, FREE
OF ALL TOLL OR OTHER CHARGES UPON THE TRANSPORTATION OF THE PROPERTY OR
TROOPS OF THE UNITED STATES; AND THE SAME SHALL BE TRANSPORTED OVER
SAID ROAD AT THE COST, CHARGE, AND EXPENSE OF THE CORPORATIONS OR
COMPANIES OWNING OR OPERATING THE SAME, WHEN SO REQUIRED BY THE
GOVERNMENT OF THE UNITED STATES."  THE AUTHORIZATION WAS "TO LAY OUT,
LOCATE, CONSTRUCT, FINISH, AND MAINTAIN A RAILROAD AND TELEGRAPH LINE
BETWEEN THE CITY OF PORTLAND, IN OREGON, AND THE CENTRAL PACIFIC
RAILROAD, IN CALIFORNIA,  ...  "  THE ROAD WAS LOCATED IN ACCORDANCE
WITH THESE REQUIREMENTS. 

IN DECEMBER, 1887, THE SISKIYOU ROUTE WAS FINISHED.  THE ROAD RUNNING
FROM ITS SOUTHERN TERMINUS AT ROSEVILLE TO SAN FRANCISCO HAD BEEN
FINISHED IN 1870.  THIS GAVE A THROUGH ROUTE FROM SAN FRANCISCO TO
PORTLAND, 774.16 MILES LONG WITH 663.16 LAND-GRANT AIDED.  THE CASCADE
ROUTE WAS BUILT LATER IN SMALL SECTIONS PRIMARILY FOR LOCAL SERVICE OR
LINKS IN OTHER PROJECTED DISTINCT RAILROAD UNDERTAKINGS.  THE
CALIFORNIA DEVIATION FROM THE SISKIYOU BETWEEN TEHAMA AND DAVIS WAS
FINISHED IN 1882.  THE OREGON SECTION, FORMING WITH THAT PORTION OF THE
SISKIYOU AN IRREGULAR OVOID FIGURE, WAS PUT TOGETHER BETWEEN 1905 AND
1926, BEING COMPLETED SEPTEMBER FIRST OF THE LATTER YEAR.  THIS ROUTE
IS 725.03 MILES BETWEEN PORTLAND AND SAN FRANCISCO WITH 258.13 MILES
BUILT WITH GRANTS IN AID.  EACH ROUTE IS NECESSARY FOR ADEQUATE
TRANSPORTATION SERVICE TO THE AREAS TRAVERSED.  AT THE TIME OF THE
COMPLETION OF THE CASCADE AND UNTIL NOVEMBER 10, 1931, THE TARIFFS OVER
THE TWO ROUTES BETWEEN THE TERMINALS WERE THE SAME. 

ON MAY 23, 1928, THERE WAS ENACTED AN ACT FOR THE RELIEF OF THE LAND
GRANT RAILROAD OPERATED BETWEEN EAST PORTLAND, OREGON, AND ROSEVILLE,
CALIFORNIA.  FN5  AS ROSEVILLE IS THE JUNCTION TERMINAL OF THE SISKIYOU
AND IS NOT SERVED BY THE CASCADE, THIS DESCRIPTION COVERS ONLY THE
SISKIYOU LINE BUILT UNDER THE 1866 ACT.  BY ITS TERMS, THE GOVERNMENT
RELINQUISHED ITS PRIVILEGE OF FREE TRANSPORTATION AND ACCEPTED IN LIEU
THEREOF A RIGHT TO THE SAME RATE AS IS PAID TO OTHER LAND-GRANT ROADS. 
THIS IS FIFTY PER CENT OF THE PUBLIC TARIFF FOR LAND-GRANT AIDED
MILEAGE.  FN6 

THE ACT OF 1866, GRANTING THE AID, SPECIFIED, ONLY GENERALLY, THE
ROUTE OF THE NEW ROAD.  IT WAS TO BEGIN AT SOME POINT ON THE CENTRAL
PACIFIC RAILROAD IN THE SACRAMENTO VALLEY AND THENCE RUN NORTHERLY TO
PORTLAND.  BY THE GRANT OF MILLIONS OF ACRES OF PUBLIC LANDS, THE
GOVERNMENT PREPAID FOR TRANSPORTATION  FN7  OVER THE LINE, WHEREVER IT
MIGHT BE BUILT.  IT WAS ENTITLED TO SERVICE FOR ITS PROPERTY OR TROOPS
WITHOUT FURTHER COST FROM WHOSOEVER OWNED OR OPERATED THE AIDED
FACILITY BETWEEN THE CENTRAL PACIFIC AND PORTLAND.  FN8  BY THE 1928
ACT, THE GOVERNMENT AGREED, FOR THE "RELIEF OF THE LAND-GRANT" ROAD, TO
PUT IT UPON THE SAME BASIS AS OTHER LAND-GRANT ROADS.  BY THIS
CONCESSION, NO CHANGE WAS MADE IN THE EXTENT OF THE OBLIGATION TO GIVE
LAND-GRANT SERVICE. 

THE TWO ACTS ARE QUITE CLEAR IN THEIR REQUIREMENT THAT THE COMPANY
WHICH CONSTRUCTED THE ROAD OR ITS SUCCESSORS IN OWNERSHIP OR OPERATION
SHOULD TRANSPORT THE PROPERTY OR TROOPS OF THE UNITED STATES OVER THE
RAILROAD AT THE RATE FIXED BY THEIR PROVISIONS.  THE UNCERTAINTY AS TO
THE MEANING ARISES IN THE APPLICATION OF THE RIGHT OF TRANSPORTATION TO
THE MILEAGE.  ON COMPLETION OF THE ORIGINAL PROJECT BETWEEN PORTLAND
AND THE CENTRAL PACIFIC, THERE WAS A DEFINITE RIGHT OF WAY, THE PRESENT
SISKIYOU ROUTE, WITH EVERY MILE BETWEEN EAST PORTLAND AND THE CENTRAL
PACIFIC AIDED BY LAND GRANTS.  THIS SAME SITUATION EXISTED AS TO ALL OR
PARTS OF OTHER BOND OR LAND AIDED ROADS.  FN9  SOON THERE WERE CHANGES
AND SHORTENING OF THESE LINES.  THE GOVERNMENT WAS FACED WITH THE
PROBLEM OF THE PROPER RATIO OF LAND-GRANT OR BOND-AIDED DEDUCTIONS OR
ALLOCATIONS TO BE APPLIED WHERE NEW NON-AID MILEAGE IS USED BETWEEN
TERMINALS FORMERLY SERVED IN A HIGHER PROPORTION BY LAND-GRANT
MILEAGE.  CUT-OFFS AND THE ELIMINATION OF CURVES FURNISHED OCCASION FOR
THESE DECISIONS.  THUS IN 1888 IN A RULING AS TO TRANSPORTATION
SERVICES RENDERED BY THE CENTRAL PACIFIC RAILROAD, WHERE THE CENTRAL
HAD THREE LINES FROM SACRAMENTO TO SAN FRANCISCO, WITH VARYING BOND
AIDED MILEAGES, THE COMPTROLLER OF THE TREASURY RULED, WHEN THE ROAD
SOUGHT TO RENDER STATEMENTS FOR THE LINE ACTUALLY USED, THAT ALL UNITED
STATES ACCOUNTS SHOULD BE STATED IN TERMS OF THE BOND-AIDED MILEAGE OF
THE ORIGINAL ROUTE.  AS THE AMOUNTS DUE TO THE CARRIER WERE APPLIED TO
RETIREMENT OF THE BONDS IN AID, THIS RULING PRESERVED THE CHARGES FOR
THIS PURPOSE.  THIS RULING HAS BEEN FOLLOWED IN ROADS AIDED BY LAND
GRANTS.  FN10  THE LONG CONTINUED ADMINISTRATIVE INTERPRETATION HAS
DECIDED WEIGHT IN REACHING A CONCLUSION UPON THE CONSTRUCTION OF THIS
CONTRACT, FN11  PARTICULARLY WHEN THE CONGRESS AFTER SUCH
INTERPRETATION GIVES UP A RIGHT FOR FREE TRANSPORTATION BETWEEN THE
TERMINALS.  ANY DOUBT MUST BE RESOLVED IN FAVOR OF THE GOVERNMENT. 
FN12 

THE CONSTRUCTION ADOPTED IN THE COURT OF CLAIMS WAS REACHED IN UNITED
STATES V. NORTHERN PACIFIC RY. CO. FN13  WHERE THERE WAS A SHORTENING
OF 94.24 MILES IN THE THROUGH ROUTE BETWEEN ST. PAUL AND SEATTLE BY
MEANS OF A CUT-OFF.  IN THAT CASE, TOO, THE OLD ROUTE WAS MAINTAINED
FOR LOCAL USE. 

IT IS URGED, HOWEVER, THAT IN THIS INSTANCE WE HAVE A NEW LINE, AN
ADDITION, RATHER THAN A CUT-OFF IN OR A SHORTENING OR STRAIGHTENING OF
AN ORIGINAL LINE.  FN14  SO FAR AS TERMINAL-TO-TERMINAL TRANSPORTATION
IS CONCERNED, THE CASCADE ROUTE DOES NOT FUNCTION AS A NEW LINE OR AN
ADDITION.  IT IS SIMPLY ANOTHER WAY OF CARRYING GOODS BY THE SAME
RAILROAD BETWEEN SAN FRANCISCO AND PORTLAND.  BY WHICH ROUTE THE
SHIPMENT MOVES, IS IMMATERIAL ON THE QUESTION OF DEDUCTION FOR LAND
GRANTS.  THE CONCLUSION THAT THE LOWEST PUBLIC TARIFFS ARE TO HAVE LAND
GRANT DEDUCTIONS BASED UPON THE PROPORTION OF THE LAND-GRANT MILEAGE IN
THE ORIGINAL LINE, SEEMS CONSONANT WITH THE PURPOSE OF THE ACTS. 
AFFIRMED. 

FN1  CF. SCHEDULE OF LAND GRANT AND BOND-AIDED RAILROADS OF THE U.S.,
OFFICE OF THE QUARTERMASTER GENERAL OF THE ARMY, CIRCULAR NO. 4,
FEBRUARY 1, 1922.  THIS SHOWS THE LAND-GRANT MILEAGE IN THE UNITED
STATES AT THE DATE OF ISSUE.  IN ORDER TO OBTAIN A SHARE OF GOVERNMENT
TRAFFIC, NON-LAND-GRANT ROADS HAVE ENTERED WIDELY INTO FREIGHT LAND
GRANT EQUALIZATION AGREEMENTS BY WHICH THEY AGREE TO CARRY FREIGHT,
ROUTED OVER THEIR LINES AT "THE LOWEST NET RATES LAWFULLY AVAILABLE, AS
DERIVED THROUGH DEDUCTIONS ACCOUNT OF LAND GRANT DISTANCE.  ...  "  CF.
CIRCULAR 3, FEB. 6, 1935, OFFICE OF QUARTERMASTER GENERAL, WAR
DEPARTMENT, FREIGHT LAND GRANT EQUALIZATION AGREEMENTS. 

FN2  ACT OF JULY 25, 1866, C. 242, 14 STAT. 239. 

FN3  234 U.S. 669. 

FN4  ID. 680; CF. UNITED STATES V. CENTRAL PACIFIC R. CO., 118 U.S.
235, 238. 

FN5  THE ACT OF MAY 23, 1928, C. 720, 45 STAT. 722-723, PROVIDES: 

"CHAP. 720.  - AN ACT FOR THE RELIEF OF THE LAND-GRANT RAILROAD
OPERATED BETWEEN THE STATION FORMERLY KNOWN AS EAST PORTLAND, IN THE
STATE OF OREGON, AND ROSEVILLE, IN THE STATE OF CALIFORNIA. 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE LAND-GRANT
RAILROAD HERETOFORE OPERATED, AND NOW BEING OPERATED, BETWEEN THE
STATION FORMERLY KNOWN AS EAST PORTLAND, IN THE STATE OF OREGON, AND
ROSEVILLE, IN THE STATE OF CALIFORNIA, SHALL HEREAFTER RECEIVE
COMPENSATION FOR TRANSPORTATION OF PROPERTY AND TROOPS OF THE UNITED
STATES AT THE SAME RATE AS IS PAID TO LAND-GRANT RAILROADS ORGANIZED
UNDER THE LAND GRANT ACT OF MARCH 3, 1863, AND THE ACT OF JULY 27,
1866(CHAPTER 278):  PROVIDED, THAT THE CONGRESS HEREBY RESERVES THE
RIGHT AT ANY TIME BY LAW TO PRESCRIBE SUCH CHARGES AS IT DEEMS
ADVISABLE FOR SUCH GOVERNMENT TRANSPORTATION." 

FN6  LAKE SUPERIOR & M.R. CO. V. UNITED STATES, 93 U.S. 442, 454,
455; LOUISVILLE & N.R. CO. V. UNITED STATES, 273 U.S. 321, 323.  ACT OF
JUNE 7, 1924, C. 291, 43 STAT. 477, 486.  THIS ACT DETERMINED THE
PROPORTION OF THE REGULAR TARIFF TO BE PAID FOR THE TRANSPORTATION. 

FN7  LOUISVILLE & N.R. CO. V. UNITED STATES, 267 U.S. 395, 402. 

FN8  SEC. 5, ACT OF JULY 25, 1866, 14 STAT. 240. 

FN9  THE LAWS RELATING TO LAND-GRANT AND BOND-AIDED RAILROADS CONTAIN
SEVERAL TYPES OF CONDITIONS.  THE MOST PREVALENT CONDITION WAS THAT
"THE SAID RAILROAD SHALL BE AND REMAIN A PUBLIC HIGHWAY FOR THE USE OF
THE GOVERNMENT OF THE UNITED STATES, FREE FROM TOLL OR OTHER CHARGE
UPON THE TRANSPORTATION OF ANY PROPERTY OR TROOPS OF THE UNITED
STATES."  THIS WAS CONSTRUED TO REQUIRE THE RAILROAD TO FURNISH ONLY
FREE USE OF THE RAILS AND PERMANENT STRUCTURES.  LAKE SUPERIOR & M.R.
CO. V. UNITED STATES, 93 U.S. 442.  IT IS TO BE FOUND IN THE FOLLOWING
ACTS:  ACT OF SEPT. 20, 1850, 9 STAT. 466(ILL.  CENT.  R.R.; MOBILE &
O.R.R.); ACT OF JUNE 10, 1852, 10 STAT. 8(CHICAGO, B. & Q.R.R.;
MISSOURI PAC. RY.; ST. LOUIS & S.F. RY.); ACT OF FEB. 9, 1853, 10 STAT.
155(CHICAGO, R.I. & PAC. RY.; ST. LOUIS, IRON MTN.  & SO. RY.); ACT OF
MAY 15, 1856, 11 STAT. 9(CHICAGO & N.W. RY.; CHICAGO, B. & Q.R.R.;
CHICAGO, M. & ST. P. RY.; CHICAGO, R.I. & PAC. RY.); ACT OF MAY 17,
1856, 11 STAT. 15(LOUISVILLE & N.R.R.; SEABOARD AIR LINE RY.); ACT OF
JUNE 3, 1856, 11 STAT. 17, 18, 20, 21(ALA.  GREAT SO. R.R.; CENTRAL OF
GA. RY.; CHICAGO & N.W. RY.; CHICAGO, M. & ST. P. RY.; CHICAGO, ST. P.,
M. & O. RY.; DULUTH, SO. SHORE & AT. RY.; GRAND RAPIDS & IND. R.R.;
GRAND TRUNK R.R.; N.Y. CENT. R.R.; LOUISVILLE & N.R.R.; MICH. CENT.
R.R.; MISSOURI, KAN. & TEXAS RY.; NASHVILLE, C. & ST. L. RY.; PERE
MARQUETTE R.R.; SOUTHERN RY. CO.; VICKSBURG, S. & PAC. R.R.); ACT OF
AUG. 11, 1856, 11 STAT. 30(ALA.  & VICKSBURG RY.; GULF & SHIP ID.
R.R.); ACT OF MARCH 3, 1857, 11 STAT. 195(CHICAGO & N.W. RY.; CHICAGO,
M. & ST. P. RY.; CHICAGO, ST. P., M. & O. RY.; GREAT NO. RY.; NORTHERN
PAC. RY.); ACT OF MARCH 3, 1863, 12 STAT. 772(ATCHISON, T. & S.F. RY.;
MISSOURI, KAN. & TEXAS RY.); ACT OF MAY 5, 1864, 13 STAT. 64(NORTHERN
PAC. RY.); ACT OF MAY 5, 1864, 13 STAT. 66(MINNEAPOLIS, ST. P. & S.
STE.  MARIE RY.); ACT OF MAY 12, 1864, 13 STAT. 72(CHICAGO, M. & ST. P.
RY.); ACT OF MARCH 3, 1865, 13 STAT. 526(CHICAGO & N.W. RY.; CHICAGO,
M. & ST. P. RY.; GREAT NO. RY., NORTHERN PAC. RY.).  SOME OF THE GRANTS
WENT FURTHER AND REQUIRED THE RAILROAD TO FURNISH FREE TRANSPORTATION. 
ACT OF JULY 1, 1864, 13 STAT. 339(MISSOURI, KAN. & TEXAS RY.); ACT OF
JULY 3, 1866, 14 STAT. 78(N.Y. CENT. R.R.; MICH. CENT. R.R.); ACT OF
JULY 4, 1866, 14 STAT. 87(CHICAGO, M. & ST. P. RY.); ACT OF JULY 25,
1866, 14 STAT. 239(SOUTHERN PAC. CO.); ACT OF JULY 26, 1866, 14 STAT.
289(MISSOURI, KANS. & TEXAS RY.); ACT OF JULY 28, 1866, 14 STAT.
338(CHICAGO, R.I. & PAC. RY.; ST. LOUIS, IRON MTN.  & SO. RY.).  OTHERS
AUTHORIZED THE RAILROAD TO CHARGE FOR GOVERNMENT TRANSPORTATION,
SUBJECT TO REGULATIONS WHICH CONGRESS MIGHT IMPOSE RESTRICTING SUCH
CHARGES.  ACT OF JULY 2, 1864, 13 STAT. 365(NORTHERN PAC. RY.); ACT OF
JULY 27, 1866, 14 STAT. 292(ATCHISON, T. & S.F. COAST LINES; ST. LOUIS
& S.F. RY.; SOUTHERN PAC. CO.); ACT OF MARCH 3, 1871, 16 STAT.
573(SOUTHERN PAC. CO.).  THE ACT OF JULY 1, 1862, 12 STAT. 489(MISSOURI
PAC. RY.), PROVIDED FOR FAIR AND REASONABLE RATES FOR GOVERNMENT
TRANSPORTATION, NOT TO EXCEED THE AMOUNTS PAID BY PRIVATE PARTIES FOR
THE SAME KIND OF SERVICE.  SEE SCHEDULE OF LAND-GRANT AND BOND-AIDED
RAILROADS OF THE U.S., OFFICE OF THE QUARTERMASTER GENERAL OF THE ARMY,
CIRCULAR NO. 4, FEBRUARY 1, 1922. 

FN10  (1888) 3 DIG.  DEC.2D COMP. 299.  FOLLOWED IN (1899) V DEC. OF
COMP. OF TREAS. 364; (1911) XVII DEC. OF COMP. OF TREAS. 633; (1914)
XXI DEC. OF COMP. OF TREAS. 238; (1917) XXIV DEC. OF COMP. OF TREAS.
193; (1923) 3 DEC. OF COMP. GEN. 267; (1931) 10 DEC. OF COMP. GEN. 552;
(1936) 15 DEC. OF COMP. GEN. 614.  BUT SEE (1900) VII DEC. OF COMP. OF
TREAS. 224; (1902) VIII DEC. OF COMP. OF TREAS. 474. 

FN11  CF. FOX V. STANDARD OIL CO., 294 U.S. 87, 96; ARMSTRONG PAINT &
VARNISH WORKS V. NU-ENAMEL CORP., 305 U.S. 315, 329-30. 

FN12  BROAD RIVER CO. V. SOUTH CAROLINA, 281 U.S. 537, 548. 

FN13  30 F.2D 655; REHEARING DENIED, 32 F.2D 698. 

FN14  UNITED STATES V. KANSAS PACIFIC RY. CO., 99 U.S. 455; UNITED
STATES V. DENVER PACIFIC RY. CO., 99 U.S. 460; UNITED STATES V. CENTRAL
PACIFIC R. CO., 118 U.S. 235. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BUTLER, DISSENTING. 

THE LAND-GRANT ACT OF JULY 25, 1866, AND COMPLIANCE WITH IT
CONSTITUTE A CONTRACT.  FN1  THIS CASE CALLS FOR CONSTRUCTION OF A
PROVISION IN SEC. 5.  FN2  THE COURT OF CLAIMS SUSTAINED THE
GOVERNMENT'S DEDUCTION ON ACCOUNT OF LANDGRANT MILEAGE THAT IS NOT
INCLUDED IN OR POSSIBLY ATTRIBUTABLE TO THE RAILROAD OVER WHICH THE
SHIPMENTS MOVED.  THE INCLUSION, AS A PART OF THE AIDED RAILROAD, OF
275.6 MILES OF THE CASCADE ROUTE BETWEEN SPRINGFIELD JUNCTION, OREGON
AND BLACK BUTTE, CALIFORNIA, IS NOT PERMISSIBLE UNDER THE TERMS OF THE
CONTRACT, NOR IS COMPUTATION OF THE LAND-GRANT DEDUCTION FROM CHARGES
FOR TRANSPORTATION VIA CASCADE ON THE PERCENTAGE APPLICABLE TO CHARGES
FOR TRANSPORTATION VIA SISKIYOU WARRANTED BY CONSTRUCTIONS HERETOFORE
PUT UPON LIKE ACTS.  SEE (OPPOSITE) REPRODUCTION OF MAP SUBMITTED AS AN
EXHIBIT AT THE ARGUMENT IN THIS COURT. 

                     PLAINTIFF'S EXHIBIT NO. 23. 

                            (FORM OMITTED)

                              I. 

THE GRANT WAS MADE TO INDUCE AND AID CONSTRUCTION OF A RAILROAD
BETWEEN PORTLAND AND SOME POINT TO BE SELECTED BY THE GRANTEES ON THE
CENTRAL PACIFIC TO SERVE THE WILLAMETTE, UMQUA, AND ROGUE RIVER VALLEYS
IN OREGON, AND THE SACRAMENTO AND SHASTA VALLEYS IN CALIFORNIA, AND TO
BE LOCATED AS SHOWN ON MAPS MADE BY THE GRANTEES AND FILED WITH THE
SECRETARY OF THE INTERIOR.  THE RAILROAD WAS LOCATED AND CONSTRUCTED,
AND, SINCE ITS COMPLETION IN 1887, HAS BEEN MAINTAINED AND KEPT IN USE,
IN ACCORDANCE WITH THE CONTRACT.  THE AIDED PORTION IS 663.13 MILES
LONG, EXTENDING BETWEEN EAST PORTLAND, OREGON AND ROSEVILLE,
CALIFORNIA, A POINT ON THE CENTRAL PACIFIC EAST OF SACRAMENTO AND ABOUT
111 MILES FROM SAN FRANCISCO.  IT IS NOW CALLED THE SISKIYOU ROUTE. 

REPAIR AND USE; THAT IT SHALL BE "A PUBLIC HIGHWAY" FOR THE USE OF THE
UNITED STATES; AND THAT PROPERTY AND TROOPS OF THE UNITED STATES SHALL
BE TRANSPORTED OVER "SAID ROAD" AT THE COST, CHARGE, AND EXPENSE OF THE
CORPORATIONS OR COMPANIES OWNING OR OPERATING "THE SAME," WHEN SO
REQUIRED BY THE GOVERNMENT. 

PLAINLY THE CONTRACT APPLIES ONLY TO THE LAND-AIDED RAILROAD BETWEEN
PORTLAND AND ROSEVILLE; NOT TO THE HAUL BETWEEN PORTLAND AND SAN
FRANCISCO, NOR TO THAT BETWEEN ROSEVILLE AND SAN FRANCISCO.  THE
CONTRACT NEITHER EXPRESSES NOR IMPLIES ANY SPECIAL UNDERTAKING BY THE
CARRIER AS TO CHARGES FOR GOVERNMENT TRANSPORTATION BETWEEN THE PORT OR
TERMINAL OF PORTLAND AND THAT OF SAN FRANCISCO. 

THE ACT OF MAY 23, 1928  FN3  MERELY SUBSTITUTES 50 PER CENT OF THE
COMMERCIAL CHARGES FOR FREE TRANSPORTATION UNDER SEC. 5.  THUS, AS
MODIFIED, THE ACT OF 1866 REQUIRES PLAINTIFF TO FURNISH GOVERNMENT
TRANSPORTATION BETWEEN POINTS ON AND WHOLLY VIA THE LAND-GRANT RAILROAD
FOR ONE-HALF THE CHARGES APPLICABLE TO LIKE SERVICE FOR PRIVATE
PARTIES.  AND FOR GOVERNMENT TRANSPORTATION BETWEEN A POINT ON THE
AIDED RAILROAD AND ONE ON ANOTHER LINE THERE IS DEDUCTED FROM CHARGES
GENERALLY MADE ONE-HALF THE PERCENTAGE THAT AIDED MILEAGE ATTRIBUTABLE
TO THAT SERVICE IS OF THE TOTAL MILES HAULED. 

THE CASCADE STRETCH WAS NOT COMPLETED UNTIL 1926 AND, AS SHOWN BY THE
FINDINGS, IT IS MADE UP OF BRANCHES EXTENDED DURING A NUMBER OF YEARS
PRIOR TO 1912 LITTLE BY LITTLE FROM BLACK BUTTE TO KIRK TO REACH
PRODUCTIVE FOREST AND AGRICULTURAL AREAS.  SEE DIAGRAM 1, OPPOSITE.  AT
ITS NORTHERLY END A SHORT PIECE FROM SPRINGFIELD JUNCTION TO NATRON WAS
COMPLETED IN 1891; IN 1912 THAT BRANCH WAS BUILT TO OAKRIDGE TO SERVE
TIMBER AREAS ON BOTH SIDES OF THE CASCADES AND ULTIMATELY TO BE A PART
OF A LINE CONNECTING WITH THE CENTRAL PACIFIC IN NEVADA OR WITH THE
UNION PACIFIC IN EASTERN OREGON.  THESE SYSTEMS WERE THEN UNDER ONE
CONTROL.  ABOUT THE SAME TIME - 1911-1914 - PLAINTIFF BUILT FROM
FERNLEY, NEVADA, A POINT ON THE CENTRAL PACIFIC NORTHWESTERLY TO
WESTWOOD, CALIFORNIA TO SERVE INDUSTRIES THERE.  CONSUMMATION OF THE
PROJECT TO COMPLETE THE LINE BETWEEN FERNLEY AND SPRINGFIELD JUNCTION
VIA NATRON, OAKRIDGE, KIRK, AND KLAMATH FALLS WAS DELAYED BECAUSE OF
THE SUIT BROUGHT IN 1908 UNDER THE SHERMAN ANTI-TRUST ACT BY THE UNITED
STATES IN THE CIRCUIT COURT FOR THE DISTRICT OF UTAH (SEE 188 F. 102),
WHICH RESULTED IN DECREE DISSOLVING CONTROL BY THE UNION PACIFIC OF THE
SOUTHERN PACIFIC.  UNITED STATES V. UNION PACIFIC R. CO., 226 U.S. 61. 
IN 1929, WITH THE APPROVAL OF THE INTERSTATE COMMERCE COMMISSION,
PLAINTIFF COMPLETED THE CONNECTION BETWEEN SPRINGFIELD JUNCTION AND
FERNLEY TO FORM A PART OF THE THROUGH ROUTE BETWEEN PORTLAND, SALT LAKE
CITY, AND POINTS EAST. 

                           DIAGRAM 1. 

HATCHED LINES SHOW LAND-AIDED MILEAGE. 

       (FORM OMITTED) 

THE COURT OF CLAIMS FOUND THAT SINCE THE COMPLETION OF THE CASCADE
STRETCH "PLAINTIFF HAS HAD AND NOW HAS TWO COMPLETE LINES OF RAILROAD
OR ROUTES IN OREGON AND NORTHERN CALIFORNIA, ONE THE SISKIYOU ROUTE
...  SERVING THE VALLEYS AND AREAS DESCRIBED  ...  PRODUCING MUCH
TONNAGE OF TIMBER, AGRICULTURAL PRODUCTS, LIVESTOCK, ETC., AND THE
OTHER THE CASCADE ROUTE  ...  ALSO SERVING LARGE TIMBER AREAS AND
AGRICULTURAL AND LIVESTOCK PRODUCING AREAS, EACH OF THESE LINES OF
RAILROAD SERVING PRODUCING AREAS QUITE GENERALLY AT ALL POINTS. 
PLAINTIFF HAS MAINTAINED THE SISKIYOU ROUTE, TRANSPORTING A SUBSTANTIAL
AND VARIED TRAFFIC AND SERVING A LARGE AND IMPORTANT AREA.  THE
SISKIYOU ROUTE AND THE CASCADE ROUTE ARE TWO SEPARATE AND DISTINCT
ROUTES OR LINES OF RAILROAD, NECESSARY FOR ADEQUATE TRANSPORTATION
SERVICE TO THE INTERESTED AREAS OR TERRITORIES TRAVERSED BY SUCH
LINES." 

THE STRETCH OF RAILROAD BETWEEN SPRINGFIELD JUNCTION AND BLACK BUTTE
VIA SISKIYOU, ALL LAND-AIDED, IS 300.42 MILES LONG; IT IS USED FOR
THROUGH TRANSPORTATION AND ALSO SERVES LOCALLY IN THE WILLAMETTE,
UMQUA, AND ROGUE RIVER VALLEYS.  ALL LAND-AIDED MILEAGE IN THAT ROUTE
CONTINUOUSLY HAS BEEN OPERATED AND MAINTAINED FOR THE SERVICE OF THE
PUBLIC, INCLUDING TRANSPORTATION OF PROPERTY AND TROOPS OF THE UNITED
STATES.  THE STRETCH BETWEEN THE SAME POINTS VIA CASCADE, NONE OF IT
LAND-AIDED, IS 275.6 MILES LONG, MOST OF WHICH IS EAST OF THE CASCADE
MOUNTAINS.  IT ALSO CARRIES THROUGH AND LOCAL TRAFFIC.  TO ILLUSTRATE
HOW UNREASONABLE AND ARBITRARY IT IS TO ATTRIBUTE THAT MILEAGE TO THE
AIDED RAILROAD BUILT, AS REQUIRED BY THE ACT OF 1866, TO OPEN AND
DEVELOP THE GREAT VALLEYS WEST OF THE MOUNTAINS, LET IT BE NOTED THAT
EXCEPT AT AND NEAR THE CONNECTING POINTS, SPRINGFIELD JUNCTION AND
BLACK BUTTE, THESE STRETCHES SERVE WIDELY SEPARATED TERRITORIES OF VAST
EXTENT; THE AREA BETWEEN THEM IS GREATER THAN THAT OF THE STATE OF
MASSACHUSETTS.  THE MILEAGE OF THE CASCADE STRETCH IS GREATER THAN THE
DISTANCE BETWEEN WASHINGTON AND WEST POINT VIA NEW YORK CITY.  THE
MILEAGE OF THE SISKIYOU STRETCH IS SUBSTANTIALLY THE SAME AS THE
DISTANCE BETWEEN WASHINGTON AND PITTSBURGH. 

UPON COMPLETION OF THE SISKIYOU ROUTE, PLAINTIFF ESTABLISHED THROUGH
RATES BETWEEN OREGON AND CALIFORNIA POINTS; IN ORDER TO MEET
COMPETITION OF WATER CARRIERS, IT WAS COMPELLED TO MAKE RATES BETWEEN
PORTLAND AND SAN FRANCISCO LOWER THAN RATES BETWEEN INTERMEDIATE
POINTS.  IN 1912, AFTER ENACTMENT OF THE LONG AND SHORT HAUL CLAUSE OF
SEC. 4, INTERSTATE COMMERCE ACT, THE COMMISSION PERMITTED THE
MAINTENANCE OF LOWER THROUGH RATES; IT FOUND THEY WERE FORCED BY WATER
COMPETITION AND WERE LOWER THAN NORMAL, FAIR AND REASONABLE RATES.  IN
1920, SEC. 4 WAS AGAIN AMENDED TO REQUIRE THE COMMISSION TO FIND THAT
THE LOWER THROUGH RATES PERMITTED BY IT WERE REASONABLY COMPENSATORY. 
IN 1927, THE COMMISSION, UPON PLAINTIFF'S SHOWING OF OPERATING COSTS ON
THE SISKIYOU ROUTE, FOUND THAT THE THROUGH RATES WERE LESS THAN
REASONABLE AND GRANTED AUTHORITY TO ESTABLISH RATES BETWEEN THE
TERMINALS LOWER THAN INTERMEDIATE RATES BUT SO MUCH HIGHER THAN THE
COMPETING WATER RATES THAT PLAINTIFF COULD NOT SHARE IN THE BUSINESS. 
THE COMMISSION THEREAFTER REOPENED THE CASE.  IN ORDER TO SHOW THE
REASONABLY COMPENSATORY NATURE OF THE LOWER THROUGH RATES, PLAINTIFF
BASED ITS SHOWING ON THE MORE FAVORABLE TRANSPORTATION CONDITIONS AND
SUBSTANTIALLY LOWER OPERATING COSTS ON THE CASCADE ROUTE.  PURSUANT TO
THE COMMISSION'S REPORT AND ORDER OF JULY, 1930, THE PLAINTIFF REVISED
ITS TARIFFS EFFECTIVE NOVEMBER 11, 1931.  THE LOW THROUGH RATES ON THE
SISKIYOU ROUTE WERE DISCONTINUED AND HIGHER RATES IN ACCORD WITH SEC. 4
WERE SUBSTITUTED.  MUCH LOWER RATES, TO MEET WATER COMPETITION, WERE
ESTABLISHED VIA THE CASCADE ROUTE AS TO TRANSPORTATION OF ABOUT 25 PER
CENT OF ALL ARTICLES THAT MOVE BETWEEN THE CITIES OF PORTLAND AND SAN
FRANCISCO.  DURING THE PERIOD BETWEEN COMPLETION OF THE CASCADE ROUTE
AND THE EFFECTIVE DATE OF THE NEW RATES, THE THROUGH RATES WERE THE
SAME VIA BOTH ROUTES. 

THE AIDED MILEAGE IN THE SISKIYOU ROUTE, 663.16 MILES, BETWEEN
PORTLAND AND SAN FRANCISCO, IS 85.584 PER CENT OF THE TOTAL.  THE AIDED
MILEAGE IN THE CASCADE ROUTE IS 258.13 MILES, OR 35.602 PER CENT OF THE
TOTAL.  CHARGES FOR THE SHIPMENTS IN QUESTION APPLICABLE VIA THE
CASCADE ROUTE, LESS 17.801 PER CENT (ONE-HALF OF THE PER CENT OF LAND
GRNAT MILEAGE TO TOTAL) ARE SUBSTANTIALLY LESS THAN THOSE VIA SISKIYOU,
LESS 42.792 PER CENT.  THE GOVERNMENT DID NOT EXPRESSLY DIRECT THE
SHIPMENTS IN QUESTION TO BE HAULED OVER THE CASCADE ROUTE BUT IT DID IN
FACT CHOOSE TO HAVE THEM GO THAT WAY.  IT WAS PLAINTIFF'S DUTY TO SEND
THEM OVER THE ROUTE ON WHICH THE CHARGES WOULD BE LOWER.  THE
GOVERNMENT REFUSED TO PAY MORE THAN THE LOWER RATES APPLICABLE VIA
CASCADE MINUS THE LANDGRANT DEDUCTION OF 42.792 PER CENT APPLICABLE TO
THE HIGHER CHARGES OVER THE SISKIYOU ROUTE. 

THE FINDINGS COMPEL THE CONCLUSIONS THAT THE CASCADE STRETCH BETWEEN
SPRINGFIELD JUNCTION AND BLACK BUTTE WAS NOT BUILT TO BETTER ALIGNMENT
OR LESSEN GRADES OF, ADD TRACKAGE TO OR OTHERWISE IMPROVE, THE LAND
AIDED STRETCH VIA SISKIYOU BETWEEN THE SAME POINTS; THAT IT WAS MADE UP
OF BRANCHES AND EXTENSIONS CONSTRUCTED FROM TIME TO TIME TO DEVELOP
PRODUCTIVE AREAS, TO SERVE LOCAL NEEDS AND, UPON COMPLETION, TO BE A
SEPARATE AND DISTINCT RAILROAD BETWEEN SPRINGFIELD JUNCTION AND BLACK
BUTTE, A PART OF WHICH WAS ALSO TO SERVE AS A SECTION OF THE
TRANSCONTINENTAL ROUTE ABOVE REFERRED TO. CLEARLY IT IS NOT A PART OF
THE RAILROAD AIDED BY THE GRANT OF 1866.  IT WAS NOT CONSTRUCTED TO AID
TRANSPORTATION ON, OR AS A SUBSTITUTE FOR, ANY PART OF THE AIDED
RAILROAD.  THE FACT THAT IT IS USED TO HAUL GOVERNMENT SHIPMENTS LIKE
THOSE IN QUESTION DOES NOT SUGGEST ANY FAILURE OF PLAINTIFF FULLY TO
PERFORM THE LAND-GRANT CONTRACT TO MAINTAIN AND KEEP IN USE THE AIDED
RAILROAD BETWEEN PORTLAND AND ROSEVILLE.  THERE IS NOTHING IN THE
GRANT, OR IN THE CIRCUMSTANCES UNDER WHICH IT WAS MADE AND COMPLIED
WITH, THAT GIVES ANY SUPPORT TO THE GOVERNMENT'S CLAIM THAT, FROM THE
LOWER CHARGES APPLICABLE TO SHIPMENTS BY PRIVATE PARTIES VIA CASCADE,
IT IS ENTITLED TO DEDUCT THE HIGHER LAND-GRANT PERCENTAGE APPLICABLE TO
TRANSPORTATION VIA SISKIYOU. 

                      II. 

THE OPINION OF THE COURT OF CLAIMS SHOWS ITS JUDGMENT TO HAVE BEEN
REACHED ON AN ASSUMPTION OF FACT THAT IS NOT SUSTAINED BY THE FINDINGS
OR OTHERWISE SUPPORTED.  IT SAYS:  "THE METHOD OF SETTLEMENT WITH
PLAINTIFF USED BY THE GENERAL ACCOUNTING OFFICE IN THIS CASE HAS BEEN
CONSISTENTLY AND UNIFORMLY FOLLOWED BY THE DEFENDANT'S ACCOUNTING
OFFICERS FOR MORE THAN FIFTY YEARS IN CASES INVOLVING THE SAME OR
SIMILAR QUESTIONS." 

THERE IS NO FINDING TO THAT EFFECT, BUT TO SUPPORT THE STATEMENT THE
OPINION CONTINUES:  "THE PRINCIPLE WAS STATED BY THE SECOND COMPTROLLER
OF THE TREASURY IN A DECISION APRIL 17, 1888, AS FOLLOWS:  'IF A
RAILROAD HAVE A LINE BETWEEN TWO POINTS, AIDED IN WHOLE OR IN PART, AND
SUBSEQUENTLY ACQUIRE A NEW LINE OR LINES NONAIDED BETWEEN THOSE SAME
POINTS, THE ACCOUNTS FOR GOVERNMENT TRANSPORTATION, WHEN PERFORMED OVER
THE NEW LINE OR LINES, SHALL BE STATED IN THE SAME PROPORTION OF AIDED
TO NONAIDED MILES AS THOUGH THE TRANSPORTATION WERE OVER THE ORIGINAL
LINE.'" 

THE DECISION REFERRED TO HAS NOT BEEN REPORTED OR ANYWHERE
PUBLISHED.  IT MAY BE FOUND ON FILE IN THE GENERAL ACCOUNTING OFFICE,
MISCELLANEOUS CLAIMS DIVISION, VOL. 55, P. 422.  THE PASSAGE ABOVE
QUOTED IS ONE OF TWO SENTENCES EXCERPTED FROM DIFFERENT PARTS OF THE
DOCUMENT AND TOGETHER PUBLISHED, WITHOUT MORE, AS PARAGRAPH 1160, VOL.
3, P. 299 OF KERN'S 1893 DIGEST OF DECISIONS OF THE SECOND COMPTROLLER
OF THE TREASURY.  FN4  AS COUNSEL FAILED TO MAKE AVAILABLE TO US THE
UNREPORTED TEXT OF THE DECISION, IT IS ASSUMED THAT NOTHING MORE THAN
THE STATEMENT IN THE DIGEST WAS BROUGHT TO THE ATTENTION OF THE LOWER
COURT. 

TO GIVE WEIGHT TO THE SECOND COMPTROLLER'S DICTUM AND JUSTIFY ITS
APPLICATION TO THIS CASE, THE LOWER COURT ADDS:  "THIS RULE AS STATED
HAS BEEN UNIFORMLY OBSERVED IN THE SETTLEMENT OF ACCOUNTS FOR
GOVERNMENT TRANSPORTATION OF PROPERTY AND TROOPS OF THE UNITED STATES,
AND HAS BEEN APPLIED IN SETTLEMENT OF ACCOUNTS FOR TRANSPORTATION
RENDERED THE GOVERNMENT WHERE THROUGH SERVICE HAS BEEN RENDERED BY A
SHORTER LINE SUBSTITUTED IN WHOLE OR IN PART FOR THE LONGER AIDED AND
ORIGINAL LINE.  (SEE STIPULATIONS OF THE PARTIES IN UNITED STATES V.
NORTHERN PACIFIC RY. CO., 30 F.2D 655.)  THIS LONG ESTABLISHED RULE HAS
BEEN ACQUIESCED IN BY LAND-GRANT RAILROADS GENERALLY AND WAS ACQUIESCED
IN BY THIS PLAINTIFF DURING THE PERIOD BETWEEN THE COMPLETION OF ITS
CASCADE LINE IN 1926 TO 1931 WHEN ITS ACCOUNTS AGAINST THE GOVERNMENT
FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY WERE SETTLED IN THIS
MANNER.  IT WAS NOT UNTIL THE SHIPMENTS INVOLVED IN THIS SUIT WERE
MOVED THAT PLAINTIFF MADE PROTEST AGAINST THE POSITION OF THE
GOVERNMENT.  WE DO NOT REGARD THE FACT THE RATES BETWEEN SAN FRANCISCO
AND PORTLAND WERE THE SAME OVER BOTH ROUTES BETWEEN 1926 AND 1931 AS
MATERIAL OR ALTERING IN ANY WAY THE PRINCIPLE INVOLVED." 

AS TO THAT PASSAGE, IT IS TO BE OBSERVED: 

THE OPINION STATES THAT THE RULE, SAID TO HAVE BEEN ESTABLISHED BY
ADMINISTRATIVE PRACTICE, HAS BEEN APPLIED TO TRANSPORTATION RENDERED BY
A "SHORTER LINE SUBSTITUTED IN WHOLE OR IN PART FOR THE LONGER AIDED
AND ORIGINAL LINE."  THE COURT DEFINITELY FOUND THAT THE CASCADE
STRETCH IS A LINE SEPARATE AND DISTINCT FROM THE AIDED RAILROAD.  IT
WAS NOT SUBSTITUTED FOR OR USED IN LIEU OF THE SISKIYOU ROUTE.  IT WAS
CHOSEN BY OR FOR THE GOVERNMENT BECAUSE APPLICABLE CHARGES, WHATEVER
THE BASIS OF CALCULATION OF LAND GRANT DEDUCTIONS, WERE LESS THAN THOSE
FOR LIKE TRANSPORTATION VIA THE OTHER STRETCH. 

THE CITED STIPULATION BETWEEN THE NORTHERN PACIFIC RAILWAY AND THE
UNITED STATES CANNOT HERE BE MADE TO SERVE IN LIEU OF SPECIAL FINDINGS
OF FACT.  FN5  MOREOVER, AS WILL BE SHOWN, THE CIRCUIT COURT OF APPEALS
IN THAT CASE HELD AGAINST THE CARRIER ON THE GROUND THAT NEW UNAIDED
MILEAGE HAD BEEN SUBSTITUTED FOR AIDED MILEAGE IN THE ORIGINAL ROUTE. 
THAT CASE MAKES STRONGLY IN FAVOR OF PLAINTIFF HERE, FOR THE FINDINGS
OF THE COURT OF CLAIMS SHOW THAT NO PART OF THE ORIGINAL AIDED RAILROAD
HAD BEEN ABANDONED AS TO THE TRAFFIC IN QUESTION OR OTHERWISE. 

THE LOWER COURT'S STATEMENT THAT, FROM THE COMPLETION OF THE CASCADE
STRETCH IN 1926 UNTIL THE SHIPMENTS HERE INVOLVED, PLAINTIFF ACQUIESCED
IN THE RULE ADOPTED BY THE COURT IS NOT SUPPORTED BY THE FINDINGS. 
BUT, EVEN IF WARRANTED, IT IS WITHOUT SIGNIFICANCE FOR THE QUESTION
PRESENTED IN THIS CASE DID NOT AND COULD NOT ARISE WHILE THE RATES
APPLICABLE BETWEEN PORTLAND AND SAN FRANCISCO WERE THE SAME. 

III. 

THE COURT OF CLAIMS FAILED TO FIND AS FACT THAT THE GOVERNMENT
FOLLOWED, OR THE CARRIERS ACCEPTED AS SOUND, THE DICTUM EXCERPTED BY
KERN FROM THE DECISION OF THE SECOND COMPTROLLER OF APRIL 17, 1888.  TO
SUPPLY THE OMISSION, THE GOVERNMENT CITES IN ITS BRIEF, WITHOUT
ADEQUATE STATEMENT OF THE FACTS OR EXPLANATION, ALL ADMINISTRATIVE
RULINGS AND JUDICIAL DECISIONS IT DEEMS TO HAVE ANY BEARING ON THE
QUESTION NOW BEFORE US.  THE FORMER ARE REFERRED TO IN FOOTNOTE 10 OF
THIS COURT'S OPINION.  FN6  HERE THE MATERIAL SUBSTANCE OF EACH WILL BE
INDICATED. 

1.  RULING OF APRIL 17, 1888, BY SECOND COMPTROLLER OF THE TREASURY,
BUTLER.  AT THAT TIME, THE CENTRAL PACIFIC HAD THREE LINES BETWEEN
SACRAMENTO AND SAN FRANCISCO.  THEY ARE INDICATED ON DIAGRAM 2,
OPPOSITE.  ROUTE 1, VIA BRIGHTON, TRACY AND NILES WAS THE ORIGINAL
RAILROAD, 140 MILES, OF WHICH 103 WERE BOND-AIDED.  ROUTE 2 VIA DAVIS
AND PORT COSTA, 90 MILES, HAD NO AIDED MILEAGE.  ROUTE 3 VIA BRIGHTON,
TRACY, AND PORT COSTA WAS 151 MILES, OF WHICH 63 BELONGED TO THE BOND
AIDED STRETCH IN ROUTE 1.  THE BONDS IN AID WERE GIVEN UNDER THE ACT OF
JULY 1, 1862, C. 120, 12 STAT. 489, 494.  SEE ALSO AMENDATORY ACTS OF
JULY 2, 1864, C. 216, 13 STAT. 356, AND MAY 7, 1878, C. 96, 20 STAT.
56.  SECTION 6 DECLARES THAT THE AID GRANTS ARE MADE ON CONDITION THAT
THE COMPANY SHALL KEEP THE RAILROAD IN REPAIR AND USE, TRANSPORT TROOPS
AND PROPERTY OF THE GOVERNMENT "AT FAIR AND REASONABLE RATES OF
COMPENSATION, NOT TO EXCEED THE AMOUNTS PAID BY PRIVATE PARTIES FOR THE
SAME KIND OF SERVICE," AND THAT ALL COMPENSATION FOR THAT
TRANSPORTATION SHALL BE APPLIED TO THE PAYMENT OF THE BONDS.  FOR A
TIME IMMEDIATELY PRECEDING THE SECOND COMPTROLLER'S DECISION, THE
GOVERNMENT STATED THE ACCOUNTS OF THE COMPANY AS THOUGH ALL SHIPMENTS
HAD BEEN HAULED OVER ROUTE 1.  THE RAILROAD MAINTAINED THAT PAYMENT
SHOULD BE MADE IN ACCORDANCE WITH THE BOND-AIDED MILEAGE IN THE ROUTE
USED.  THUS AROSE THE ISSUE DECIDED. 

                              DIAGRAM 2. 

                   SCALE:  APPX.  1 INCH   12 MILES. 

                 HATCHED LINES SHOW BOND-AIDED MILEAGE

                            (FORM OMITTED) 

THE BOND-AID CONTRACT HAD BEEN CONSTRUED TO REQUIRE THE TREASURY TO
RETAIN THE COMPENSATION FOR GOVERNMENT TRANSPORTATION OVER BOND-AIDED
MILEAGE AND TO APPLY IT IN PAYMENT OF THE BONDS.  UNITED STATES V.
KANSAS PACIFIC RY. CO., 99 U.S. 455.  UNITED STATES V. CENTRAL PACIFIC
R. CO., 118 U.S. 235.  THESE CASES DEFINITELY ESTABLISHED THAT
COMPENSATION FOR GOVERNMENT TRANSPORTATION OVER NONAIDED EXTENSIONS OF
THE AIDED RAILROADS SHOULD NOT BE WITHHELD OR APPLIED TO PAY THE BOND
DEBT.  BUT THE SECOND COMPTROLLER HELD THAT RULE NOT APPLICABLE.  HE
FOUND THAT ACCOUNTING OFFICERS WERE REQUIRED BY THE ACT TO DETERMINE
WHETHER THE RATES ARE "FAIR AND REASONABLE" AND STATED THE PROBLEM
THUS:  "GIVEN A CERTAIN STATE OF FACTS, WHAT IS THE SERVICE RENDERED BY
THE RAILROAD, AND WHAT IS A FAIR AND REASONABLE COMPENSATION
THEREFOR?" 

MORE SPECIFICALLY TO DISCLOSE THE POINT, THE SECOND COMPTROLLER
REFERRED TO THE CONTRACTUAL RELATIONS BETWEEN THE GOVERNMENT AND THE
CARRIERS, AND ASKED HIMSELF:  "ARE THOSE RELATIONS IMPAIRED BY THE
RAILROAD, IF IT PURSUES THE COURSE WHICH IN THE PRESENT CASE IT
CONTENDS TO BE RIGHT?"  HE ANSWERED AFFIRMATIVELY AND TO SUSTAIN THAT
VIEW REASONED AS FOLLOWS:  TO REIMBURSE ITSELF THE GOVERNMENT MAY
WITHHOLD COMPENSATION FOR "CARRIAGE OVER AN AIDED LINE."  THE SECURITY
IS IMPAIRED IF THE RAILROAD "PARALLELS OR DUPLICATES AN AIDED LINE
BETWEEN TWO POINTS AND DIVERTS THE GOVERNMENT BUSINESS TO THAT LINE
WITHOUT IN SOME WAY RECOGNIZING ITS INDEBTEDNESS TO THE GOVERNMENT." 
FN7 

THEN, GRANTING THAT ON STRICTEST LEGAL CONSTRUCTION OF THE STATUTES
AND OF THE DECISIONS OF THIS COURT THERE WAS NOTHING TO PRECLUDE SUCH A
COURSE BY THE RAILROAD, THE SECOND COMPTROLLER WENT ON TO SAY:  "BUT
THE PRINCIPLES OF EQUITY AND ETHICS FORBID THE APPLICATION OF SUCH A
CONSTRUCTION."  INVOKING THE MAXIM "HE THAT SEEKS EQUITY MUST DO
EQUITY" AS BEING "MOST FORCIBLY PERTINENT," HE DECLARED THAT SO LONG AS
THE RAILROAD IS INDEBTED TO THE GOVERNMENT ON ACCOUNT OF THE BOND-AIDED
LINE, IT MUST NOT IMPERIL THE GOVERNMENT'S OPPORTUNITY TO RECOUP, AND
CONCLUDED THAT ALL ACCOUNTS, WITHOUT REGARD TO THE ROUTE USED, SHOULD
BE STATED UPON THE BASIS OF BOND-AIDED MILEAGE. 

THE COMPANY CLAIMED THAT ACQUISITION OF ROUTE 2 WAS NECESSARY BECAUSE
IT THREATENED THE EXISTENCE OF THE CENTRAL PACIFIC AND THAT ROUTE 3 WAS
ACQUIRED FOR CONVENIENCE BECAUSE IT HAD BETTER GRADES THAN THE ORIGINAL
LINE.  IT ARGUED THAT THE GOVERNMENT HAD AN INTEREST IN THE NEW LINES
AND SHOULD BE WILLING TO PAY ENTIRE COMPENSATION FOR CARRIAGE OVER
THEM.  AGAINST THAT CONTENTION THE SECOND COMPTROLLER SAID:  "BUT THE
ACQUIRING OR BUILDING BY A RAILROAD OF NEW LINES CONNECTING TWO POINTS
ALREADY CONNECTED BY THE ROAD OF THE COMPANY IS ONE OF THE ORDINARY
ELEMENTS OF MODERN RAILROADING, INTENDED TO ENHANCE THE USEFULNESS OF
THE ORIGINAL LINE, IN THE SAME WAY AS DOES THE REPLACING OF IRON BY
STEEL RAILS, OR WOODEN BY STONE BUILDINGS, OF HAND-BRAKES BY AUTOMATIC
APPLIANCES.  FN8  IS THE GOVERNMENT TO LOSE ITS RIGHT OF WITHHOLDING
COMPENSATION FOR CARRIAGE OVER A TRESTLE, THE CONSTRUCTION OF WHICH IN
WOOD IT AIDED, SIMPLY BECAUSE THE RAILROAD HAS SEEN FIT TO REPLACE THE
WOODEN STRUCTURE BY ONE OF IRON?" 

HE DENOUNCED AS UNTENABLE BOTH THE POSITION OF THE GOVERNMENT AND
THAT OF THE COMPANY, AND DECLARED "THAT A MEDIUM COURSE IS NOT ONLY
PRACTICABLE AND EQUITABLE, BUT IS JUSTIFIED UNDER THE ACTS  ...  BY THE
CHANGED AND APPARENTLY UNANTICIPATED CONDITION OF AFFAIRS SINCE THE
CONSTRUCTION OF THE RAILROAD WAS CONTEMPLATED."  HE SUGGESTED THAT THE
COMPANY SHOULD RECOGNIZE THAT THE GOVERNMENT'S SECURITY SHOULD NOT BE
IMPAIRED BY A DUPLICATING LINE, AND THAT THE GOVERNMENT SHOULD
RECOGNIZE SUCH AN IMPROVEMENT OF ROUTE AS MATERIALLY LESSENS DISTANCE
OR DIFFICULTIES OF TRANSPORTATION BETWEEN TWO POINTS.  THEN REASONING
IN MORE DEFINITE TERMS, HE SAID: 

"IF THE ORIGINAL LINE  ...  , 140 MILES IN LENGTH, WERE ENTIRELY
AIDED, AND THE GOVERNMENT'S SUPPLIES WERE TAKEN OVER THE NEW AND
UNAIDED LINE, 90 MILES IN LENGTH, IT WOULD NOT BE RIGHT ON THE ONE HAND
FOR THE RAILROAD TO DEMAND ACTUAL COMPENSATION FOR THE 90 MILES, OR, ON
THE OTHER HAND, FOR THE GOVERNMENT TO MAINTAIN THAT THE ACCOUNT SHOULD
BE ADJUSTED ON A BASIS OF 140 MILES AND THAT AMOUNT PASSED TO THE
CREDIT OF THE RAILROAD ON THE GOVERNMENT'S BOOKS.  THE NON-AIDED LINE
WAS USED TO REPLACE THE AIDED LINE, AND CREDIT FOR THE 90 MILES ONLY
SHOULD BE GIVEN THE RAILROAD ON THE GOVERNMENT'S BOOKS.  THE SAME
REASONING APPLIES WHEN THE ORIGINAL LINE WAS AIDED IN PART. 

"IF OF THE ORIGINAL 140 MILES  ...  103 WERE AIDED, AND THE ACCOUNTS
WERE SO STATED AS TO PAY THE RAILROAD FOR 37 MILES AND CARRY 103 MILES
TO THE RAILROAD'S CREDIT, THE SAME RATIO SHOULD BE APPLIED WHEN
TRANSPORTATION IS OVER A NEW LINE BETWEEN THOSE POINTS, AND 103/140 OF
THE TOTAL DISTANCE TRAVERSED SHOULD BE CONSIDERED AS AIDED AND SHOULD
BE CARRIED TO THE RAILROAD'S CREDIT ON THE GOVERNMENT'S BOOKS,
COMPENSATION FOR THE BALANCE OF 37/140 BEING PAID DIRECT TO THE
RAILROAD." 

FOLLOWING THESE PASSAGES THE SECOND COMPTROLLER SAID:  "IF A RAILROAD
HAVE A LINE BETWEEN TWO POINTS AIDED IN WHOLE OR IN PART, AND
SUBSEQUENTLY ACQUIRE A NEW LINE OR LINES, NONAIDED, BETWEEN THOSE SAME
POINTS, THE ACCOUNTS FOR GOVERNMENT TRANSPORTATION, WHEN PERFORMED OVER
THE NEW LINE OR LINES, SHALL BE STATED IN THE SAME PROPORTION OF AIDED
TO NONAIDED MILES, AS THOUGH THE TRANSPORTATION WERE OVER THE ORIGINAL
LINE."  THIS IS THE STATEMENT FOUND IN PAR. 1160, 3 DIG.2D COMP. 299,
ON WHICH THE COURT OF CLAIMS GROUNDED ITS JUDGMENT. 

APPLYING THE GENERALIZATION SO ATTEMPTED HE RULED:  "ON THIS BASIS
THE ACCOUNTS OF THE RAILROAD COMING TO THIS BUREAU WILL BE FINALLY
SETTLED.  I AM OF THE OPINION THAT SUBSTANTIAL JUSTICE WOULD THUS BE
DONE - THE RAILROAD WOULD NOT IMPAIR THE SECURITY OF THE GOVERNMENT,
AND THE GOVERNMENT WOULD RECOGNIZE THE RIGHT OF THE RAILROAD TO MAKE
IMPROVEMENTS."    THE CRUCIAL PHRASE OF THE GENERALIZATION, "A NEW LINE
OR LINES NONAIDED," WOULD INCLUDE MILEAGE THAT IS SEPARATE AND DISTINCT
FROM AN AIDED RAILROAD MAINTAINED AND KEPT IN USE BETWEEN THE SAME
POINTS.  BUT THE SECOND COMPTROLLER, ON THE GROUNDS THAT ACQUISITION OF
NEW LINES WAS THE SAME AS MAKING ADDITIONS AND BETTERMENTS TO THE
ORIGINAL AIDED LINE AND THAT ROUTES 2 AND 3 WERE USED TO REPLACE ROUTE
1, TREATED THE LINES CONSTITUTING THE THREE ROUTES AS A SINGLE RAILROAD
BOND-AIDED TO THE EXTENT OF 103/140 OF ITS LENGTH.  FN9  IT THUS
APPEARS THAT THE BROAD GENERALIZATION DOES NOT EXPRESS THE PRINCIPLE OF
THE DECISION OR FIT THE SITUATION DESCRIBED BY IT AS MERE BETTERMENT OF
THE LINE BUILT PURSUANT TO THE BOND-AID CONTRACT.    THE DECISION DOES
NOT RELATE TO THE QUESTION IN THIS CASE.  PLAINTIFF DOES NOT CONTEND
THAT, IF AIDED MILEAGE OF THE SISKIYOU STRETCH NOT USED MAY BE
ATTRIBUTED TO THE CASCADE STRETCH THAT WAS USED TO DO THE HAULING IN
QUESTION, THE CORRESPONDING PERCENTAGE, 42.792 PER CENT, SHOULD NOT BE
APPLIED.  PLAINTIFF'S POINT IS THAT THE FINDINGS PRECLUDE THE
ASSIGNMENT OF ANY AIDED MILEAGE TO THE NONAIDED CASCADE STRETCH.  THE
TEXT OF THE SECOND COMPTROLLER'S DECISION SHOWS THAT HE DID NOT DECIDE
OR DEAL WITH ANY SUCH ISSUE. 

2.  RULING OF JANUARY 5, 1899 BY ACTING COMPTROLLER MITCHELL IN A
SOUTHERN PACIFIC CASE, V DEC. OF COMP. OF TREAS. 364.  SEE DIAGRAM 2. 
A GOVERNMENT CLERK TRAVELED TO SACRAMENTO VIA STOCKTON.  A PART OF THE
ROUTE USED WAS BOND-AIDED.  HE RETURNED VIA BENICIA ON THE SHORTER AND
USUALLY TRAVELED NONAIDED ROUTE.  THE QUESTION WAS WHETHER PAYMENT
SHOULD BE MADE TO THE COMPANY FOR TRANSPORTATION OVER THE NONAIDED
ROUTE.  THIS DECISION MERELY FOLLOWS THE UNCALLED FOR AND INAPPLICABLE
GENERALIZATION ATTEMPTED BY SECOND COMPTROLLER BUTLER IN THE CENTRAL
PACIFIC CASE. 

3.  RULING OF NOVEMBER 19, 1900 BY ASSISTANT COMPTROLLER MITCHELL IN
AN ILLINOIS CENTRAL CASE, VII DEC. OF COMP. OF TREAS. 224.  SEE DIAGRAM
3.  THE COMPANY OPERATED A LAND-AIDED RAILROAD BETWEEN CAIRO AND
CHICAGO.  IT HAD TWO ROUTES FOR PASSENGER TRAVEL BETWEEN CAIRO AND ST.
LOUIS: THE SHORTER VIA CARBONDALE AND PINCKNEYVILLE, HAD SOME UNAIDED
MILEAGE; THE LONGER, VIA DU QUOIN, WAS AIDED THROUGHOUT.  THE
GOVERNMENT HAVING FAILED TO DESIGNATE EITHER ROUTE AND THE SHORTER
BEING THE USUALLY TRAVELED ONE OVER WHICH ALL THROUGH TRAINS OPERATED,
THE COMPANY CARRIED THE GOVERNMENT PASSENGER THAT WAY.  THE QUESTION
WAS WHETHER THE LAND-GRANT DEDUCTION SHOULD BE CALCULATED ON THE
PERCENTAGE OF LANDAIDED MILEAGE IN THE ROUTE USED OR ON THE GREATER
PERCENTAGE IN THE OTHER ROUTE.  ASSISTANT COMPTROLLER MITCHELL DID NOT
FOLLOW THE GENERAL STATEMENT OF SECOND COMPTROLLER BUTLER IN THE
CENTRAL PACIFIC CASE BUT HELD THAT, AS THE GOVERNMENT DID NOT CHOOSE
BETWEEN THE ROUTES, THE DEDUCTION SHOULD BE CALCULATED ON THE MILEAGE
USED. 

IN THE LIST OF ADMINISTRATIVE RULINGS, CITED BY THE GOVERNMENT, THIS
IS THE FIRST ONE THAT INVOLVES CONSTRUCTION OF A LAND-GRANT ACT.  LAND
AID DIFFERS ESSENTIALLY FROM BOND-AID.  CONTRACTS IN RESPECT OF THE
LATTER REQUIRE GOVERNMENT TRANSPORTATION OVER AIDED MILEAGE AT "FAIR
AND REASONABLE RATES" AND THAT THE COMPENSATION EARNED BE APPLIED ON
THE BOND DEBT.  NO DIMINUTION OF CHARGES FOR GOVERNMENT TRANSPORTATION
IS EXACTED.  THE RAILROAD RECEIVES CREDIT INSTEAD OF CASH FOR THE
CHARGES CALCULATED AT FULL RATES.  BUT THE LAND-GRANT ACTS REQUIRE
SERVICE EITHER FREE OR AT HALF RATES FOREVER.  QUESTIONS AS TO
COMPENSATION UNDER THEM CONCERN NOT MERELY FORM OF PAYMENT OF FULL
CHARGES BUT THE AMOUNT OF PAYMENT.  UNREASONABLE INDEED WOULD IT BE TO
HOLD THAT CARRIERS' ACQUIESCENCE IN GOVERNMENT CONSTRUCTION OF BOND-AID
ACTS IS BINDING OR ENTITLED TO WEIGHT IN CASES INVOLVING CONSTRUCTION
OF THE LAND-GRANT ACTS. 

                              DIAGRAM 3. 

            SCALE:  APPX.  1 INCH   26 MILES. 

     HATCHED LINES SHOW LAND-AIDED MILEAGE. 

               (FORM OMITTED) 

4.  RULING OF JANUARY 21, 1902 BY COMPTROLLER TRACEWELL IN A GREAT
NORTHERN CASE, VIII DEC. OF COMP. OF TREAS. 474.  SEE DIAGRAM 4.  THE
GOVERNMENT SHIPPED PROPERTY FROM ST. PAUL, MINNESOTA, TO POINTS WEST OF
LARIMORE, NORTH DAKOTA.  THE COMPANY HAD THREE ROUTES BETWEEN THE
POINTS JUST NAMED.  THE PERCENTAGE OF AIDED MILEAGE IN THE ROUTE VIA
CROOKSTON, "A," IS LARGER THAN THAT IN EITHER ROUTE "B" OR "C."  THE
GOVERNMENT HAVING FAILED TO CHOOSE A ROUTE, THE COMPANY HAULED BY THE
SHORTEST ROUTE, "C"; IT WAS GENERALLY USED FOR LIKE SERVICE.  THE
QUESTION WAS WHETHER LAND-GRANT DEDUCTION SHOULD BE CALCULATED ON THE
PERCENTAGE OF THE SHORTER LINE ACTUALLY USED OR THE HIGHER PERCENTAGE
OF THE LONGER ONE NOT USED. 

                              DIAGRAM 4. 

    SCALE:  APPX.  1 INCH   74 MILES. 

HATCHED LINES SHOW LAND-AIDED MILEAGE. 

       (FORM OMITTED) 

THE DECISION, AS WELL AS THE QUOTED GENERALIZATION, OF SECOND
COMPTROLLER BUTLER ARE IN TERMS BROAD ENOUGH TO COVER THE QUESTION
PRESENTED BUT COMPTROLLER TRACEWELL, REFUSING TO FOLLOW EITHER, DECIDED
AGAINST THE GOVERNMENT'S CONTENTION.  HE SAID:  "WHERE, WITH GOVERNMENT
AID, TWO SEPARATE AND INDEPENDENT LINES OF RAILROAD HAVE BEEN
CONSTRUCTED FROM A COMMON POINT TO ENTIRELY DIFFERENT POINTS, BUT WHICH
SUBSEQUENTLY BY EXTENSION AND INDEPENDENT CONNECTIONS ARE PROJECTED
THROUGH A COMMON POINT, AND ALL THESE LINES HAVE SUBSEQUENTLY PASSED TO
THE CONTROL OF A SINGLE COMPANY, AND TRANSPORTATION IS FURNISHED
BETWEEN SUCH COMMON POINTS FOR THE GOVERNMENT BY THE MOST USUALLY
TRAVELED OF SAID ROUTES, DEDUCTION FOR LAND GRANT SHOULD BE MADE ON THE
BASIS OF SUCH ROUTE, IN THE ABSENCE OF A CONTRACT OR A REQUEST FOR
TRANSPORTATION BY THE OTHER ROUTE." 

IF FOLLOWED, THIS RULING WOULD REQUIRE LAND-GRANT DEDUCTION IN THE
CASE AT BAR TO BE CALCULATED ON THE LAND-GRANT MILEAGE OF THE CASCADE
ROUTE USED.  COMPARE DIAGRAMS 1 AND 4. 

5.  RULING OF FEBRUARY 28, 1911 BY COMPTROLLER TRACEWELL IN A ST.
LOUIS, IRON MOUNTAIN & SOUTHERN (MISSOURI PACIFIC) CASE, XVII DEC. OF
COMP. OF TREAS. 633.  SEE DIAGRAM 5.  THE COMPANY HAD A LAND-AIDED
RAILROAD BETWEEN BIRDS POINT, MISSOURI (ON THE WEST BANK OF THE
MISSISSIPPI OPPOSITE CAIRO, ILLINOIS) AND TEXARKANA, ARKANSAS, VIA
DEXTER, MISSOURI.  GOVERNMENT SHIPMENTS FROM CAIRO TO DEXTER WERE
GENERALLY TRANSPORTED ACROSS THE RIVER AT BIRDS POINT AND THENCE BY THE
LAND-AIDED LINE.  ON GOVERNMENT SHIPMENTS BETWEEN CAIRO AND TEXARKANA
BY THAT ROUTE, 99.247 PER CENT WAS LAND AIDED.  BECAUSE OF A CHANGE IN
THE BED OF THE RIVER, IT WAS NECESSARY TO HAUL THE SHIPMENTS IN
QUESTION VIA THEBES AND ILLMO.  THE LAND-GRANT DEDUCTION APPLICABLE TO
THAT ROUTE WAS 81.234 PER CENT.  THE RAILROAD INSISTED THAT, HAVING
BEEN FORCED TO GIVE UP THE OLD ROUTE, IT SHOULD NOT BE REQUIRED TO MAKE
DEDUCTION FOR THE NONAIDED MILEAGE BETWEEN CAIRO AND DEXTER VIA
THEBES.  BUT THE COMPTROLLER REFUSED TO ACCEPT THAT CONTENTION AND
ORDERED SETTLEMENT ON THE BASIS OF LAND-AIDED MILEAGE IN THE ROUTE VIA
BIRDS POINT. 

DIAGRAM 5. 

                   SCALE:  APPX.  1 INCH   17 MILES. 

                HATCHED LINES SHOW LAND-AIDED MILEAGE. 

                            (FORM OMITTED) 

THERE IS A FUNDAMENTAL DIFFERENCE BETWEEN THAT CASE AND THE ONE
BEFORE US.  THE CARRIER HAD ABANDONED THE LAND-AIDED ROUTE FOR HAULS
BETWEEN CAIRO AND DEXTER.  THE SOUTHERN PACIFIC KEPT THE SISKIYOU ROUTE
IN USE. 

6.  RULING OF OCTOBER 19, 1914 BY COMPTROLLER DOWNEY IN AN ATCHISON
CASE, XXI DEC. OF COMP. OF TREAS. 238.  SEE DIAGRAM 6.  THE COMPANY HAS
A LINE IN KANSAS BETWEEN LAWRENCE AND CHANUTE, LAND-AIDED TO THE EXTENT
OF 91.3 MILES AND UNAIDED AS TO 3.02 MILES, PART OF THE DISTANCE
BETWEEN CHANUTE AND HUMBOLDT.  IT HAS ANOTHER LINE BETWEEN ATCHISON AND
THE COLORADO BOUNDARY VIA TOPEKA AND EMPORIA, ALL OF WHICH IS LAND
AIDED.  TO CONNECT THESE TWO AIDED LINES THERE WAS BUILT AN UNAIDED
BRANCH BETWEEN LAWRENCE AND TOPEKA AND LATER ANOTHER BETWEEN OTTAWA AND
EMPORIA.  THE GOVERNMENT SHIPPED CEMENT FROM CHANUTE TO HOLBROOK,
ARIZONA.  EARLIER THE SHIPMENT WOULD HAVE MOVED THROUGH HUMBOLDT,
OTTAWA, LAWRENCE, TOPEKA, EMPORIA, AND THENCE TO POINT OF DESTINATION. 
BUT, BECAUSE OF THE CONSTRUCTION OF THE BRANCH BETWEEN OTTAWA AND
EMPORIA, THE SHIPMENT IN QUESTION WAS HAULED OVER THAT LINE.  BY THIS
ROUTE THE HAUL BETWEEN CHANUTE AND HOLBROOK WAS 59.13 MILES LESS THAN
OVER THE OTHER ROUTE AND AIDED MILEAGE BETWEEN THOSE POINTS WAS LESS BY
91.42 MILES.  THE COMPTROLLER HELD THAT THE LAND-GRANT DEDUCTION SHOULD
BE BASED ON THE LAND-AIDED MILEAGE OF THE ORIGINAL ROUTE.  HE FOUND
THAT THE LAND-GRANT ACT (12 STAT. 772) REQUIRED THE AIDED RAILROADS "TO
BE AND REMAIN PUBLIC HIGHWAYS FOR THE USE OF THE GOVERNMENT" AND THAT
THE BRANCH LINES MADE NEW THROUGH ROUTES "TO THE ABANDONMENT, IN PART,
OF THE AIDED THROUGH ROUTE."  HE SAID: "IT HAS LONG BEEN THE HOLDING OF
THE ACCOUNTING OFFICERS THAT THE CHANGING OF A LINE OF RAILROAD AND
ABANDONING OF ANY PART OF THE ORIGINAL AIDED LINE DOES NOT DEPRIVE THE
GOVERNMENT OF ITS ORIGINAL RIGHTS, AND SETTLEMENT FOR SERVICE OVER THE
NEW LINE IS, THEREFORE, REQUIRED TO BE MADE AS IF THE TRANSPORTATION
WERE OVER THE ORIGINAL LINE.  (SEE 3 DIG.  DEC.2D COMP. 299; V DEC. OF
COMP. OF TREAS. 364)". 

  DIAGRAM 6. 

                   SCALE:  APPX.  1 INCH   58 MILES. 

                HATCHED LINES SHOW LAND-AIDED MILEAGE. 

                            (FORM OMITTED) 

AS THE GROUND ON WHICH THAT RULING RESTS IS ABANDONMENT OF A PART OF
THE AIDED LINE, IT GIVES NO SUPPORT TO THE JUDGMENT BEFORE US. 

7.  RULING OF OCTOBER 1, 1917 BY COMPTROLLER WARWICK IN A MISSOURI
PACIFIC CASE, XXIV DEC. OF COMP. OF TREAS. 193.  THE PUBLISHED REPORT
DOES NOT DISCLOSE THE PHYSICAL SITUATION.  IT IS INDICATED BY DIAGRAM 7
PREPARED ON THE BASIS OF INFORMATION FOUND IN AN UNPUBLISHED OPINION IN
THE SAME CASE RENDERED MAY 8, 1917.  THE GOVERNMENT SHIPPED STONE FROM
BATESVILLE, ARKANSAS ON AN UNAIDED LINE VIA KANSAS CITY TO LEAVENWORTH
PENITENTIARY, KANSAS.  AN OLDER ROUTE BETWEEN THE SAME POINTS WAS VIA
WHITE RIVER BRANCH CONNECTION, CAIRO BRANCH CONNECTION, CARONDOLET
BRANCH CONNECTION, PACIFIC, AND KANSAS CITY.  THE RATIO APPLICABLE IN
COMPUTING LAND-GRANT DEDUCTION FOR SHIPMENTS HAULED THAT WAY IS 17.933
PER CENT.  THE WARDEN AT LEAVENWORTH PAID THE COMPANY FOR THE SERVICE
IN QUESTION OVER THE UNAIDED LINE, WITHOUT ANY LAND-GRANT DEDUCTION. 
HOWEVER, THE COMPTROLLER HELD THE CARRIER SUBJECT TO THE SAME
PERCENTAGE OF DEDUCTION AS APPLIED TO THE AIDED ROUTE.  ON THE
COMPANY'S APPLICATION HE GRANTED REHEARING, UPHELD THE PRINCIPLE ON
WHICH HE ORDERED THE DEDUCTION, AND DECLARED IT WOULD BE APPLIED TO
FUTURE SHIPMENTS.  BUT, IN VIEW OF PARTICULAR FACTS AND EQUITIES
INVOLVED, HE CONCLUDED THAT THE ACCOUNTS PAID PRIOR TO THE DATE OF THE
DECISION COULD BE ALLOWED WITHOUT LAND-GRANT DEDUCTION. 

              DIAGRAM 7. 

                  SCALE:  APPX.  1 INCH   100 MILES. 

                HATCHED LINES SHOW LAND-AIDED MILEAGE. 

                            (FORM OMITTED) 

IT REQUIRES NO DISCUSSION TO SHOW THAT THE DIRECT ROUTE USED SHOULD
HAVE BEEN CHOSEN FOR THE TRANSPORTATION IN QUESTION.  THE COMPTROLLER
CITED NO LAND-GRANT CONTRACT TO SUPPORT THE RULE THAT HE MADE
APPLICABLE TO FUTURE SHIPMENTS.  NOR DID HE CITE SECOND COMPTROLLER
BUTLER'S RULING OR ANY CASE - AND SO FAR AS DISCLOSED BY DILIGENT
RESEARCH, BRIEFS OF COUNSEL AND THIS COURT'S OPINION JUST ANNOUNCED -
THERE IS NONE THAT TENDS TO SUSTAIN SO INCONGRUOUS AN ATTRIBUTION OF
AIDED MILEAGE NOT USED TO AN UNAIDED ROUTE USED. 

8.  RULING OF OCTOBER 27, 1923 BY COMPTROLLER MCCARL IN A SOUTHERN
PACIFIC CASE, 3 COMP. GEN. 267.  SEE DIAGRAM 8.  THIS CASE INVOLVED A
GOVERNMENT SHIPMENT FROM MARSHALL (SPOKANE), WASHINGTON, TO ROSEBURG,
OREGON.  IT WAS ROUTED OVER AN UNAIDED LINE OF THE OREGON-WASHINGTON
RAILROAD & NAVIGATION COMPANY SUBJECT TO AN EQUALIZATION AGREEMENT THAT
CHARGES WOULD NOT EXCEED THE AMOUNT PAYABLE HAD THE SERVICE BEEN BY THE
LAND-GRANT LINE YIELDING THE LOWEST NET RATE.  THE NORTHERN PACIFIC
LINE BETWEEN MARSHALL AND PORTLAND VIA PASCO AND TACOMA WAS LAND
AIDED.  LATER THERE WAS BUILT BETWEEN PASCO AND PORTLAND A LINE JOINTLY
OWNED BY THE NORTHERN PACIFIC AND THE GREAT NORTHERN; IT IS A PART OF
THE SPOKANE, PORTLAND & SEATTLE RAILWAY.  UPON COMPLETION OF THAT LINE,
THE NORTHERN PACIFIC CANCELED ITS RATES APPLICABLE BETWEEN MARSHALL AND
PORTLAND BY ITS AIDED LINE THROUGH TACOMA AND ANNOUNCED THAT THE RATES
IN ITS TARIFFS WOULD ONLY APPLY VIA THE NEW UNAIDED LINE.  THE
COMPTROLLER HELD THAT, AS TO THE GOVERNMENT TRANSPORTATION IN QUESTION,
THE AIDED STRETCH OF THE NORTHERN PACIFIC HAD BEEN ABANDONED, AND THAT
THE GOVERNMENT WAS THEREFORE ENTITLED "TO THE TRANSPORTATION OVER THE
SUBSTITUTED LINE ON THE SAME BASIS AS THOUGH TRANSPORTATION WAS
FURNISHED OVER THE ORIGINAL LAND-GRANT LINE," AND DIRECTED THAT LAND
GRANT DEDUCTION SHOULD BE ALLOWED. 

                              DIAGRAM 8. 

        SCALE:  APPX.  1 INCH   64 MILES. 

 HATCHED LINES SHOW LAND-AIDED MILEAGE. 

           (FORM OMITTED) 

THAT CASE DIFFERS FROM THE ONE AT BAR IN THAT THE NORTHERN PACIFIC,
HAVING NO TARIFF APPLICABLE TO THE SHIPMENT VIA ITS AIDED LINE, HAD
ABANDONED THAT LINE AND FOR IT SUBSTITUTED A NEW ONE. 

9.  THE DECISIONS IN NORTHERN PACIFIC RY. CO. V. UNITED STATES ARE
NEXT IN CHRONOLOGICAL ORDER.  SEE DIAGRAM 9, ON P. 428.  ON GOVERNMENT
REQUEST, THE COMPANY TRANSPORTED TWO MARINES BY THROUGH PASSENGER TRAIN
FROM ST. PAUL TO SEATTLE.  THE NORTHERN PACIFIC LAND GRANT AIDED A
ROUTE FROM A POINT ON LAKE SUPERIOR TO ONE ON PUGET SOUND.  PURSUANT TO
THE TERMS OF THE STATUTE (ACT OF JULY 2, 1864, 13 STAT. 365) THE AIDED
RAILROAD WAS BUILT FROM THE TERMINAL ESTABLISHED AT ASHLAND IN
WISCONSIN TO THE ONE ESTABLISHED AT TACOMA IN WASHINGTON.  NEITHER ST.
PAUL NOR SEATTLE IS OR EVER WAS A TERMINAL ON THAT OR ANY OTHER LAND
GRANT LINE OF THE NORTHERN PACIFIC.  SEE UNITED STATES V. NORTHERN
PACIFIC RY. CO., 177 U.S. 435, 441.  ST. PAUL IS MORE THAN 100 MILES
OFF THE AIDED LINE; SEATTLE, MORE THAN 50 MILES.  IN THE ROUTE TRAVELED
BY THE TRAIN IN QUESTION THE ONLY AIDED MILEAGE BETWEEN ST. PAUL AND
THE ORIGINAL NORTHERN PACIFIC LAND-GRANT LINE IS A STRETCH OF ABOUT 20
MILES BETWEEN WATAB AND LITTLE FALLS, WHICH IS A PART OF THE LAND-AIDED
RAILROAD BETWEEN WATAB AND BRAINERD CONSTRUCTED BY THE WESTERN RAILROAD
COMPANY UNDER THE ACT OF MARCH 3, 1857, 11 STAT. 195.  FN10  THERE IS
NO AIDED MILEAGE BETWEEN SEATTLE AND PALMER JUNCTION, WHERE THE
ORIGINAL LINE CONNECTS WITH THE ROUTE USED. 

                              DIAGRAM 9. 

              HATCHED LINES SHOW LAND-AIDED MILEAGE. 

                        (FORM OMITTED) 

THE ISSUE IN THE CASE WAS WHETHER, IN ADDITION TO AN UNDISPUTED
DEDUCTION OF 3 PER CENT, THERE SHOULD BE DEDUCTED FROM THE FULL
COMMERCIAL FARE, $63.16, A LAND-GRANT PERCENTAGE OF 46.001 PER CENT, AS
CLAIMED BY THE COMPANY, LEAVING A BALANCE OF $33.09, OR 47.285 PER
CENT, AS CLAIMED BY THE GOVERNMENT, LEAVING A BALANCE OF $32.29.  THUS
THE AMOUNT IN ISSUE AS TO EACH PASSENGER WAS 80 CENTS. 

THE CONTROVERSY AROSE FROM THE FACT THAT THE GOVERNMENT ATTRIBUTED TO
THE ROUTE USED THE STRETCHES OF AIDED MILEAGE BETWEEN LITTLE FALLS AND
STAPLES VIA BRAINERD AND BETWEEN PALMER JUNCTION AND AUBURN VIA MEEKER,
AMOUNTING IN ALL TO 94.24 MILES. 

THE GOVERNMENT'S THEORY WAS THAT THE NEW UNAIDED LINES WERE "MERELY
ALTERNATE OR LIEU ROUTES - ROUTES ESTABLISHED BY THE RAILROAD TO
SHORTEN OR STRAIGHTEN ITS LINE" AND THAT THEREFORE THE CALCULATION OF
LAND-GRANT DEDUCTION SHOULD TAKE INTO ACCOUNT AIDED MILEAGE NOT USED TO
RENDER THE SERVICE IN QUESTION.  THE DISTRICT COURT REFUSED SO TO
INTERPRET THE FACTS AND HELD THE DEDUCTION SHOULD BE CALCULATED ON
MILEAGE ACTUALLY USED.  22 F.2D 858, 859.  BUT THE CIRCUIT COURT OF
APPEALS, ONE JUDGE DISSENTING, FOUND THAT THE UNUSED AIDED MILEAGE HAD
BEEN ABANDONED.  30 F.2D 655.  AND UPON THAT INTERPRETATION OF THE
STIPULATED FACTS, IT SAID (P. 659):  "IT THUS APPEARS THAT, EXCEPT BY
THIS LATTER ROUTE, (I.E. VIA UNAIDED STRETCHES BETWEEN LITTLE FALLS AND
STAPLES, AND BETWEEN PALMER JUNCTION AND AUBURN) THROUGH CARRIAGE BY
THE NORTHERN PACIFIC (FROM ST. PAUL) TO THE ENTIRE PACIFIC COAST IS
ABANDONED."  THE FACTS CLEARLY DISTINGUISH THAT CASE FROM THE ONE NOW
UNDER CONSIDERATION.  IT IS HERE IMMATERIAL WHETHER THE JUDGMENT RESTS
ON A CORRECT OR ERRONEOUS INTERPRETATION OF THE STIPULATION ON WHICH
THE CASE WAS SUBMITTED.  IT IS ENOUGH TO SAY THAT THE AIDED STRETCHES
WERE EXCLUDED BY THE COMPANY BECAUSE NOT USED AND WERE INCLUDED BY THE
GOVERNMENT ON THE GROUND THAT HAVING BEEN ABANDONED, THEY SHOULD BE
ATTRIBUTED TO THE ROUTE USED. 

10.  RULING OF JUNE 23, 1931 BY COMPTROLLER GENERAL MCCARL IN A
MISSOURI PACIFIC CASE, 10 COMP. GEN. 552.  SEE DIAGRAM 10.  THE COMPANY
CONSTRUCTED AN UNAIDED CUT-OFF BETWEEN JEDBURG JUNCTION AND EUREKA
JUNCTION, INTERMEDIATE POINTS ON ITS LAND-AIDED LINE BETWEEN ST. LOUIS
AND PACIFIC.  THE DISTANCE BETWEEN THEM VIA THE CUT-OFF IS 2.99 MILES. 
OVER THE OLD LAND-AIDED LINE VIA GLENCOE, IT IS 4.93 MILES.  THAT TRACK
WAS STILL IN USE FOR SOME LOCAL TRAINS.  AT ANOTHER PLACE ON ITS LINE,
WITHIN THE CITY OF ST. LOUIS, THE COMPANY SUBSTITUTED 0.68 OF A MILE OF
NONAIDED LINE FOR A LONGER ONE WHICH IS AIDED.  THE COMPTROLLER GENERAL
HELD THAT THE AIDED MILEAGE NOT USED SHOULD BE ATTRIBUTED TO THE CUT
OFF MILEAGE USED.  HE SAID:  "IT WOULD SEEM TO BE TOO CLEAR FOR SERIOUS
ARGUMENT THAT OF THE DISTANCES SHOWN AFTER THE CUT-OFF  ...  BETWEEN
EUREKA AND JEDBURG AND THE 0.68 MILES FROM UNION STATION CONNECTION TO
THE UNION STATION, OR A TOTAL OF 3.67 MILES IS NOT OVER THE LAND-GRANT
LINE, BUT IT IS EQUALLY CLEAR THAT THE NEW MILEAGE OF 3.67 MILES WAS
SUBSTITUTED FOR MILEAGE OVER THE ORIGINAL LINE FOR WHICH GRANTS OF
PUBLIC LANDS WERE MADE." 

    DIAGRAM 10. 

                HATCHED LINES SHOW LAND-AIDED MILEAGE. 

                            (FORM OMITTED) 

IT REQUIRES IMAGINATION TO DISCOVER IN THAT CASE ANYTHING IN
PRINCIPLE OR IN FACT THAT WILL SUPPORT THE CONCLUSION REACHED BY THE
COURT OF CLAIMS IN THE CASE AT BAR. 

11.  RULING OF JANUARY 16, 1936 BY COMPTROLLER GENERAL MCCARL, 15
COMP. GEN. 614.  IT HAS NO BEARING UPON THE CASE AT BAR.  THE QUESTION
WAS WHETHER, IN COMPUTING PERCENTAGE OF LAND GRANT DEDUCTION, THE LINE
OF THE SPOKANE, PORTLAND & SEATTLE RAILWAY BETWEEN PASCO AND PORTLAND
(SEE DIAGRAM 8), OWNED JOINTLY BY THE NORTHERN PACIFIC AND THE GREAT
NORTHERN, IS TO BE REGARDED AS A NORTHERN PACIFIC LINE.  THE
COMPTROLLER GENERAL ANSWERED IN THE AFFIRMATIVE. 

                                 IV. 

THERE IS APPARENT ATTEMPT TO DRAW FROM THE ACT OF 1928 SOME SUPPORT
FOR THE CONSTRUCTION ON WHICH THIS COURT AFFIRMS THE JUDGMENT BELOW. 
BUT, SO FAR AS CONCERNS THE QUESTION IN THIS CASE, THAT ACT DOES NOT
INDICATE ANY CONGRESSIONAL INTERPRETATION OF THE LAND-GRANT ACT OF
1866.  THE SOLE PURPOSE OF THAT MEASURE WAS TO SUBSTITUTE 50 PER CENT
DEDUCTION IN PLACE OF FREE TRANSPORTATION; IT WAS PASSED IN ORDER TO
RELIEVE THE SOUTHERN PACIFIC OF A BURDEN TO WHICH OTHER AIDED RAILROADS
WERE NOT SUBJECT.  WHEN IT WAS ENACTED, MAY 23, 1928, ONLY EIGHT OF THE
RULINGS ABOVE REFERRED TO HAD BEEN MADE; TWO RELATED TO BONDAID
CONTRACTS AND ARE NOT IN POINT; TWO WERE IN FAVOR OF THE RAILROADS AND
DO NOT SUPPORT THE JUDGMENT IN THIS CASE.  AND, AS ABOVE SHOWN, NONE
GIVES ANY SUPPORT TO THE EXPANSION OF THE TERMS OF THE CONTRACT THAT IS
HERE MADE.  THE 1928 ACT WAS PASSED WHILE THE DECISION OF THE DISTRICT
COURT IN THE NORTHERN PACIFIC CASE REMAINED UNREVERSED.  22 F.2D
858(1927).  THAT CASE WAS NOT DECIDED IN THE CIRCUIT COURT OF APPEALS
UNTIL 1929, 30 F.2D 655.  IF THE ACT COULD BE DEEMED TO BE A
CONSTRUCTION OF THE LAND-GRANT - AS PLAINLY IT MAY NOT - IT WOULD HAVE
TO BE READ AS APPROVING THE DECISION OF THE DISTRICT COURT, FOR THAT
WAS THE ONLY JUDICIAL DECISION IN THAT FIELD. 

                                  V. 

THE LAND-GRANT LINE HAS BEEN KEPT IN USE.  THE CONTRACT IS THAT,
WHERE GOVERNMENT TRANSPORTATION IS WHOLLY OVER THAT LINE, DEDUCTION OF
50 PER CENT SHALL BE MADE AND THAT, WHERE IT IS PARTLY OVER THAT LINE,
THERE SHALL BE DEDUCTED THE PERCENTAGE THAT AIDED MILEAGE USED IS OF
TOTAL HAUL.  BUT THIS COURT HOLDS THAT, EVEN IF THE GOVERNMENT ELECTS
TO HAVE ITS FREIGHT MOVE OVER A SEPARATE AND DISTINCT UNAIDED RAILROAD,
THE PLAINTIFF IS BOUND TO APPLY THE PERCENTAGES APPLICABLE TO CHARGES
FOR TRANSPORTATION OVER THE AIDED LINE.  THUS THE DECISION IMPLIES A
FORMULA OR RULE TO THE EFFECT THAT A LAND-GRANT DEDUCTION ONCE FOUND
APPLICABLE TO CHARGES FOR TRANSPORTATION OVER A ROUTE MADE UP OF AIDED
AND UNAIDED MILEAGE BETWEEN TWO POINTS IS TO BE APPLIED TO ALL
SUBSEQUENT GOVERNMENT SHIPMENTS BETWEEN THOSE POINTS, EVEN IF THE ROUTE
ACTUALLY USED INCLUDES NO AIDED MILEAGE.  THERE IS NOTHING IN THIS
CONTRACT OR IN ANY OF THE RAILROAD LAND-GRANT ACTS, EITHER AS WRITTEN
OR AS HITHERTO CONSTRUED, TO WARRANT THAT CONSTRUCTION. 

I AM OF OPINION THAT THE JUDGMENT SHOULD BE REVERSED. 

FN1  LAKE SUPERIOR & M.R. CO. V. UNITED STATES, 93 U.S. 442.  UNION
PACIFIC R. CO. V. UNITED STATES, 104 U.S. 662, 664.  UNITED STATES V.
CENTRAL PACIFIC R. CO., 118 U.S. 235, 238.  BURKE V. SOUTHERN PACIFIC
R. CO., 234 U.S. 669, 680.  UNITED STATES V. NORTHERN PACIFIC RY. CO.,
256 U.S. 51, 64.  UNITED STATES V. GALVESTON, H. & S.A. RY. CO., 279
U.S. 401. 

FN2  "AND BE IT FURTHER ENACTED, THAT THE GRANTS AFORESAID ARE MADE
UPON THE CONDITION THAT THE SAID COMPANIES SHALL KEEP SAID RAILROAD
...  IN REPAIR AND USE, AND SHALL AT ALL TIMES TRANSPORT THE MAILS UPON
SAID RAILROAD  ...  FOR THE GOVERNMENT OF THE UNITED STATES, WHEN
REQUIRED SO TO DO BY ANY DEPARTMENT THEREOF, AND THAT THE GOVERNMENT
SHALL AT ALL TIMES HAVE THE PREFERENCE IN THE USE OF SAID RAILROAD  ...
THEREFOR AT FAIR AND REASONABLE RATES OF COMPENSATION, NOT TO EXCEED
THE RATES PAID BY PRIVATE PARTIES FOR THE SAME KIND OF SERVICE.  AND
SAID RAILROAD SHALL BE AND REMAIN A PUBLIC HIGHWAY FOR THE USE OF THE
GOVERNMENT OF THE UNITED STATES, FREE OF ALL TOLL OR OTHER CHARGES UPON
THE TRANSPORTATION OF THE PROPERTY OR TROOPS OF THE UNITED STATES; AND
THE SAME SHALL BE TRANSPORTED OVER SAID ROAD AT THE COST, CHARGE, AND
EXPENSE OF THE CORPORATIONS OR COMPANIES OWNING OR OPERATING THE SAME,
WHEN SO REQUIRED BY THE GOVERNMENT OF THE UNITED STATES."  14 STAT.
239, 240-241. 

FN3  "AN ACT FOR THE RELIEF OF THE LAND-GRANT RAILROAD OPERATED
BETWEEN THE STATION FORMERLY KNOWN AS EAST PORTLAND, IN  ...  OREGON,
AND ROSEVILLE, IN  ...  CALIFORNIA.  BE IT ENACTED  ... THAT THE LAND
GRANT RAILROAD HERETOFORE OPERATED, AND NOW BEING OPERATED, BETWEEN THE
STATION FORMERLY KNOWN AS EAST PORTLAND, IN  ...  OREGON, AND
ROSEVILLE, IN  ...  CALIFORNIA, SHALL HEREAFTER RECEIVE COMPENSATION
FOR TRANSPORTATION OF PROPERTY AND TROOPS OF THE UNITED STATES AT THE
SAME RATE AS IS PAID TO LAND-GRANT RAILROADS ORGANIZED UNDER THE LAND
GRANT ACT OF MARCH 3, 1863, AND THE ACT OF JULY 27, 1866(CHAPTER
278)(PURSUANT TO WHICH SUCH RAILROADS TRANSPORT GOVERNMENT PROPERTY AT
A CHARGE OF 50 PER CENT OF THE REGULAR TARIFFS):  PROVIDED, THAT THE
CONGRESS HEREBY RESERVES THE RIGHT AT ANY TIME BY LAW TO PRESCRIBE SUCH
CHARGES AS IT DEEMS ADVISABLE FOR SUCH GOVERNMENT TRANSPORTATION." 

FN4  THE FIRST SENTENCE READS:  "THE CENTRAL PACIFIC RAILROAD COMPANY
SHOULD RECOGNIZE THE GOVERNMENT'S DEMAND THAT ITS SECURITY FOR
REPAYMENT OF MONEY ADVANCED IN AID OF THE CONSTRUCTION OF THE ORIGINAL
LINE BE NOT IMPAIRED OR WHITTLED AWAY BY A DUPLICATING OF THE LINE." 

FN5  SEE M.E. BLATT CO. V. UNITED STATES, 305 U.S. 267, 277.  STONE
V. UNITED STATES, 164 U.S. 380, 383.  CROCKER V. UNITED STATES, 240
U.S. 74, 78.  BROTHERS V. UNITED STATES, 250 U.S. 88, 93.  UNITED
STATES V. WELLS, 283 U.S. 102, 120.  UNITED STATES V. ESNAULT-PELTERIE,
299 U.S. 201, 206.  AND SEE AMERICAN PROPELLER CO. V. UNITED STATES,
300 U.S. 475, 479-480. 

FN6  THE FOOTNOTE READS:  "(1888) 3 DIG.  DEC.2D COMP. 299.  FOLLOWED
IN (1899) V DEC. OF COMP. OF TREAS. 364; (1911) XVII DEC. OF COMP. OF
TREAS. 633; (1914) XXI DEC. OF COMP. OF TREAS. 238; (1917) XXIV DEC. OF
COMP. OF TREAS. 193; (1923) 3 DEC. OF COMP. GEN. 267; (1931) 10 DEC. OF
COMP. GEN. 552; (1936) 15 DEC. OF COMP. GEN. 614.  BUT SEE (1900) VII
DEC. OF COMP OF TREAS. 224; (1902) VIII DEC. OF COMP. OF TREAS. 474." 

FN7  AND THEN, THE DECISION QUOTES A PASSAGE FROM A MESSAGE OF
PRESIDENT CLEVELAND, THEN VERY RECENTLY SENT TO CONGRESS WITH THE
REPORT OF THREE COMMISSIONERS APPOINTED TO INVESTIGATE THE AFFAIRS OF
RAILROAD COMPANIES THAT HAD RECEIVED GOVERNMENT AID, DECLARING THAT THE
ACTS WERE PASSED UPON THE THEORY THAT THE ROADS SHOULD BE CONSTRUCTED
"ACCORDING TO THE COMMON RULES OF BUSINESS, FAIRNESS, AND DUTY, AND
THAT THEIR ABILITY TO PAY THEIR DEBTS SHOULD NOT BE IMPAIRED BY UNFAIR
MANIPULATIONS." 

FN8  ITALICS IN QUOTATIONS ARE ADDED. 

FN9  UNDER OUR DECISIONS, THE CONTRACT EXTENDED ONLY TO THE AIDED
RAILROAD.  UNITED STATES V. KANSAS PACIFIC RY. CO., 99 U.S. 455. 
UNITED STATES V. CENTRAL PACIFIC R. CO., 118 U.S. 235.  AS ROUTE 2 HAD
NO AIDED MILEAGE AND ROUTE 3 ONLY 63 OF ITS 151 MILES, THE COMPTROLLER
ERRED IN TREATING THE LINES CONSTITUTING THE THREE ROUTES AS A SINGLE
RAILROAD. 

FN10  BETWEEN MINNEAPOLIS AND ST. PAUL THE NORTHERN PACIFIC USES,
UNDER AN OPERATING CONTRACT, 8.23 MILES OF LAND-AIDED ROAD BELONGING TO
ANOTHER COMPANY.  THAT STRETCH WAS NOT INVOLVED IN THE LITIGATION. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS JOIN IN THIS OPINION. 

..END :









UNITED STATES V. ONE FORD COACH, 307 U.S. 219 


NO. 10.  REARGUED MAY 1, 1939.  - DECIDED MAY 22, 1939.  - 93 F.2D 771,
19 F.SUPP.  470, AFFIRMED.  - 99 F.2D 498, 22 F.SUPP.  507, AFFIRMED. 


1.  UPON THE FACTS, HELD THAT CLAIMANTS FOR REMISSION OF FORFEITURES
OF AUTOMOBILES SEIZED FOR UNLAWFUL TRANSPORTATION OF TAX UNPAID
LIQUORS, HAD COMPLIED WITH THE CONDITIONS IMPOSED BY SEC. 204(B) OF THE
LIQUOR LAW REPEAL AND ENFORCEMENT ACT OF AUGUST 27, 1935, AND THAT THE
COURTS BELOW PROPERLY REMITTED THE FORFEITURES.  PP. 224 ET SEQ. 

2.  A CLAIMANT (AUTOMOBILE FINANCE COMPANY) WHO IN GOOD FAITH
PURCHASED FROM A DEALER A CONDITIONAL SALE CONTRACT COVERING THE SALE
OF AN AUTOMOBILE; WHO BELIEVED THAT THE VENDEE NAMED THEREIN WAS THE
REAL PURCHASER AND OWNER OF THE AUTOMOBILE; AND WHO HAD NO KNOWLEDGE,
INFORMATION OR SUSPICION OF FACTS TO THE CONTRARY UNTIL THE CAR WAS
LATER SEIZED FOR VIOLATION OF THE REVENUE LAWS,  - HAD AN "INTEREST IN
SUCH VEHICLE  ...  ACQUIRED IN GOOD FAITH," WITHIN SEC. 204(B)(1) OF
THE LIQUOR LAW REPEAL AND ENFORCEMENT ACT.  P. 224. 

3.  WHERE SUCH CLAIMANT, BEFORE ACQUIRING SUCH SALE CONTRACT,
INVESTIGATED THE PERSON NAMED THEREIN AS PURCHASER AND FOUND THAT HE
HAD NO RECORD OR REPUTATION FOR VIOLATION OF LIQUOR LAWS; AND BELIEVED
THAT SUCH PERSON WAS THE REAL PURCHASER; AND HAD NO KNOWLEDGE,
INFORMATION, OR SUSPICION THAT HE WAS MERELY A "STRAW" PURCHASER - THIS
WAS A SUFFICIENT SHOWING UNDER SEC. 204(B)(2) THAT THE CLAIMANT HAD NO
REASON TO BELIEVE THAT THE CAR WOULD BE USED IN VIOLATION OF LIQUOR
LAWS.  THE CONTENTION THAT, SINCE CLAIMANT KNEW THAT AUTOMOBILES WERE
FREQUENTLY USED FOR VIOLATION OF LIQUOR LAWS, HE HAD REASON TO BELIEVE
THAT THE CAR IN QUESTION WOULD BE SO USED, IS REJECTED.  P. 224. 

4.  SUBSECTION (B)(3) OF SEC. 204 OF THE LIQUOR LAW REPEAL AND
ENFORCEMENT ACT DOES NOT REQUIRE, AS A CONDITION TO REMISSION OF
FORFEITURE BY THE COURT, THAT THE CLAIMANT SHALL HAVE INVESTIGATED, AT
HIS PERIL, EVERY PERSON WITH RECORD OR REPUTATION FOR VIOLATING THE
LIQUOR LAWS WHO IN FACT, ALTHOUGH WHOLLY UNSUSPECTED, HAD ACQUIRED SOME
RIGHT TO THE VEHICLE.  THE SUBSECTION WAS INTENDED TO PREVENT REMISSION
TO A CLAIMANT WHO HAD FAILED TO MAKE INQUIRY WHEN HE SHOULD HAVE DONE
SO, TO ONE CHARGEABLE WITH WILLFUL NEGLIGENCE OR PURPOSE OF FRAUD.  P.
235. 

5.  FORFEITURES ARE NOT FAVORED; THEY SHOULD BE ENFORCED ONLY WHEN
WITHIN BOTH THE LETTER AND THE SPIRIT OF THE LAW.  P. 226. 

UNITED STATES V. ONE 1936 MODEL FORD V-8 DELUXE COACH, COMMERCIAL
CREDIT COMPANY, CLAIMANT.* 

*TOGETHER WITH NO. 627, UNITED STATES V. AUTOMOBILE FINANCING, INC.
ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH
CIRCUIT.  ARGUED MAY 1, 1939.  - DECIDED MAY 22, 1939. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 303 U.S. 633; 306 U.S. 625, TO REVIEW THE AFFIRMANCES OF
JUDGMENTS IN TWO CASES IN WHICH THE DISTRICT COURTS ORDERED REMISSION
OF FORFEITURES UNDER THE LIQUOR LAW REPEAL AND ENFORCEMENT ACT.  IN NO.
10, THE JUDGMENT BELOW WAS PREVIOUSLY AFFIRMED HERE BY AN EQUALLY
DIVIDED COURT, 305 U.S. 564; A REHEARING WAS SUBSEQUENTLY GRANTED, 305
U.S. 666.  NO. 627 WAS ASSIGNED FOR ARGUMENT IMMEDIATELY FOLLOWING THE
REARGUMENT IN NO. 10. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

IN EACH OF THESE CAUSES THE DISTRICT COURT, PROCEEDING UNDER THE
"LIQUOR LAW REPEAL AND ENFORCEMENT ACT" OF AUGUST 27, 1935(C. 740, 49
STAT. 872, 878, TITLE 27 U.S.C. SEC. 40(A), MITIGATED THE FORFEITURE OF
AN AUTOMOBILE SEIZED FOR UNLAWFUL TRANSPORTATION OF DISTILLED SPIRITS
UPON WHICH THE FEDERAL TAX HAD NOT BEEN PAID.  (ONE WAS SEIZED DECEMBER
3, 1936; THE OTHER, MARCH 15, 1937.)  THE FORFEITURE WAS DECREED IN A
PROCEEDING BASED UPON SEC. 3450 R.S. (TITLE 26 U.S.C. SEC. 1441).  THE
CIRCUIT COURTS OF APPEALS RIGHTLY APPROVED AND THEIR JUDGMENTS MUST BE
AFFIRMED. 

THE FACTS, UNDISPUTED, ARE ESSENTIALLY ALIKE IN BOTH CAUSES.  THE
POINTS OF LAW ARE THE SAME.  A STATEMENT BASED ON RECORD NO. 10 WILL
SUFFICE. 

THE REPEAL ENFORCEMENT ACT PROVIDES - 

"SEC. 204.  (A)  WHENEVER, IN ANY PROCEEDING IN COURT FOR THE
FORFEITURE, UNDER THE INTERNAL-REVENUE LAWS, OF ANY VEHICLE OR AIRCRAFT
SEIZED FOR A VIOLATION OF THE INTERNAL-REVENUE LAWS RELATING TO LIQUORS
SUCH FORFEITURE IS DECREED, THE COURT SHALL HAVE EXCLUSIVE JURISDICTION
TO REMIT OR MITIGATE THE FORFEITURE. 

"(B)  IN ANY SUCH PROCEEDING THE COURT SHALL NOT ALLOW THE CLAIM OF
ANY CLAIMANT FOR REMISSION OR MITIGATION UNLESS AND UNTIL HE PROVES (1)
THAT HE HAS AN INTEREST IN SUCH VEHICLE OR AIRCRAFT, AS OWNER OR
OTHERWISE, WHICH HE ACQUIRED IN GOOD FAITH, (2) THAT HE HAD AT NO TIME
ANY KNOWLEDGE OR REASON TO BELIEVE THAT IT WAS BEING OR WOULD BE USED
IN THE VIOLATION OF LAWS OF THE UNITED STATES OR OF ANY STATE RELATING
TO LIQUOR, AND (3) IF IT APPEARS THAT THE INTEREST ASSERTED BY THE
CLAIMANT ARISES OUT OF OR IS IN ANY WAY SUBJECT TO ANY CONTRACT OR
AGREEMENT UNDER WHICH ANY PERSON HAVING A RECORD OR REPUTATION FOR
VIOLATING LAWS OF THE UNITED STATES OR OF ANY STATE RELATING TO LIQUOR
HAS A RIGHT WITH RESPECT TO SUCH VEHICLE OR AIRCRAFT, THAT, BEFORE SUCH
CLAIMANT ACQUIRED HIS INTEREST, OR SUCH OTHER PERSON ACQUIRED HIS RIGHT
UNDER SUCH CONTRACT OR AGREEMENT, WHICH EVER OCCURRED LATER, THE
CLAIMANT, HIS OFFICER OR AGENT, WAS INFORMED IN ANSWER TO HIS INQUIRY,
AT THE HEADQUARTERS OF THE SHERIFF, CHIEF OF POLICE, PRINCIPAL FEDERAL
INTERNAL-REVENUE OFFICER ENGAGED IN THE ENFORCEMENT OF THE LIQUOR LAWS,
OR OTHER PRINCIPAL LOCAL OR FEDERAL LAWENFORCEMENT OFFICER OF THE
LOCALITY IN WHICH SUCH OTHER PERSON ACQUIRED HIS RIGHT UNDER SUCH
CONTRACT OR AGREEMENT, OF THE LOCALITY IN WHICH SUCH OTHER PERSON THEN
RESIDED, AND OF EACH LOCALITY IN WHICH THE CLAIMANT HAS MADE ANY OTHER
INQUIRY AS TO THE CHARACTER OR FINANCIAL STANDING OF SUCH OTHER PERSON,
THAT SUCH OTHER PERSON HAD NO SUCH RECORD OR REPUTATION." 

THE FOLLOWING FINDINGS BY THE DISTRICT COURT, IT IS AGREED, CORRECTLY
SET OUT "THE FACTS IN THIS CASE" - 

THE FORD AUTOMOBILE IN QUESTION WAS SOLD BY THE GREENVILLE AUTO
SALES, INCORPORATED (THE DEALER) OCTOBER 3, 1936, THROUGH ITS AGENT,
ELROD, TO GUY WALKER, WHO IN PART PAYMENT EXCHANGED AN OLD CAR PAID FOR
BY HIM, BUT REGISTERED IN HIS WIFE'S NAME.  HE WAS GIVEN TERMS FOR
PAYMENT UNDER A CONDITIONAL SALES CONTRACT, DRAWN BY AN AGENT OF THE
DEALER, IN THE NAME OF HIS BROTHER, PAUL WALKER, WHO FORMALLY EXECUTED
THE AGREEMENT.  GUY WALKER HAD THE CONDITIONAL SALES CONTRACT DRAWN AND
EXECUTED IN THE NAME OF HIS BROTHER IN ORDER TO PLACE THE TITLE "WHERE
HIS WIFE COULD NOT REACH IT."  PAUL WALKER HAD NO INTEREST IN THE
TRANSACTION EXCEPT TO COMPLY WITH HIS BROTHER'S REQUEST.  GUY WALKER
MADE THE TRANSACTION WITH THE DEALER.  HE SELECTED THE CAR, MADE THE
AGREEMENT AND HANDLED THE TRANSACTION HIMSELF.  PAUL WALKER DROVE THE
CAR FROM THE DEALER'S PLACE OF BUSINESS.  GUY WALKER AT THE TIME, AND
FOR TWO OR THREE WEEKS AFTER THE PURCHASE, WAS LIVING AT HIS BROTHER'S
HOUSE.  ONLY ONE PAYMENT WAS MADE ON THE CONDITIONAL SALES CONTRACT
BEFORE THE SEIZURE, AND THAT BY GUY WALKER TO THE DEALER. 

IT WAS ADMITTED THAT GUY WALKER HAD A PREVIOUS RECORD AND REPUTATION
FOR VIOLATING BOTH STATE AND FEDERAL LAWS RELATING TO LIQUOR.  PAUL
WALKER WAS CONVICTED OF VIOLATING THE NATIONAL PROHIBITION ACT IN 1929,
AND WAS DULY SENTENCED THEREFOR, BUT HIS RECORD AND REPUTATION SINCE
SERVING THE SENTENCE WERE GOOD. 

ON THE DATE WHEN THE SALE WAS CONSUMMATED THE DEALER SUBMITTED THE
CONTRACT TO THE COMMERCIAL CREDIT COMPANY, THE CLAIMANT HERE, WHO
ACCEPTED BY TELEPHONE, AND SUBSEQUENTLY ON OCTOBER 5TH, IN THE USUAL
COURSE OF BUSINESS THE DEALER ASSIGNED THE CONTRACT TO THE CLAIMANT AND
RECEIVED A CHECK THEREFOR. 

THE CLAIMANT BEFORE ACCEPTING ASSIGNMENT OF THE SALES CONTRACT MADE
AN INVESTIGATION OF PAUL WALKER BY INQUIRING AT THE HEADQUARTERS OF THE
SHERIFF OF GREENVILLE COUNTY, AND AT THE HEADQUARTERS OF THE CHIEF OF
POLICE OF GREENVILLE, THE COUNTY AND CITY WHERE THE INTEREST WAS
ACQUIRED AND THE LOCALITY WHERE PAUL WALKER RESIDED, AS TO HIS RECORD
AND REPUTATION FOR VIOLATION OF THE LIQUOR LAW.  INFORMATION WAS
RECEIVED FROM THESE OFFICES THAT HE HAD NO SUCH RECORD OR REPUTATION. 
INFORMATION WAS GIVEN, HOWEVER, FROM THE SHERIFF'S OFFICE THAT GUY
WALKER HAD BOTH RECORD AND REPUTATION AS VIOLATOR OF STATE AND FEDERAL
LAWS RELATING TO LIQUOR.  NO INQUIRY OR INVESTIGATION WAS MADE AT THE
HEADQUARTERS OF THE PRINCIPAL FEDERAL INTERNAL-REVENUE OFFICER ENGAGED
IN THE ENFORCEMENT OF THE LIQUOR LAWS IN THAT LOCALITY, OR AT THE
HEADQUARTERS OF ANY OTHER PRINCIPAL LOCAL OR FEDERAL LAW ENFORCEMENT
OFFICER OF THE LOCALITY AS TO PAUL WALKER, AND NO INQUIRY OR
INVESTIGATION WHATSOEVER WAS MADE OF GUY WALKER, THE ADMITTED REAL
OWNER AND PURCHASER OF THE AUTOMOBILE. 

THE CLAIMANT HAD PAUL WALKER INVESTIGATED IN AUGUST, 1936, BY THE
BUSINESS SERVICE BUREAU OF GREENVILLE, SOUTH CAROLINA, IN CONNECTION
WITH THE PURCHASE OF A REFRIGERATOR.  NO INVESTIGATION AT THAT TIME WAS
MADE AS TO HIS REPUTATION OR RECORD FOR VIOLATING THE LIQUOR LAWS; THE
INVESTIGATION DID DISCLOSE THAT HE HAD A GOOD REPUTATION IN THE
COMMUNITY WHERE HE LIVED, AND THIS WAS THE REPUTATION GIVEN HIM BY HIS
EMPLOYER AT THAT TIME. 

THE CLAIMANT PURCHASED THE CONDITIONAL SALES CONTRACT IN GOOD FAITH,
BELIEVING THAT PAUL WALKER WAS THE PURCHASER AND OWNER OF THE
AUTOMOBILE.  IT HAD NO KNOWLEDGE, INFORMATION OR SUSPICION OF THE TRUE
FACTS UNTIL AFTER THE AUTOMOBILE HAD BEEN SEIZED BY FEDERAL OFFICERS. 

PETITIONER CHALLENGES THE JUDGMENT BELOW BECAUSE OF CLAIMANT'S
FAILURE TO ESTABLISH COMPLIANCE WITH THE CONDITIONS IMPOSED BY SUB
IT HAD NO REASON TO BELIEVE THE AUTOMOBILE WAS BEING USED OR WOULD BE
USED TO VIOLATE THE LIQUOR LAWS; ALSO BECAUSE IT MADE NO ADEQUATE
INQUIRY CONCERNING THE RECORD AND REPUTATION OF THE REAL PURCHASER -
GUY WALKER. 

RESPONDENT'S INTEREST IN THE AUTOMOBILE IS NOT QUESTIONED.  IT
"PURCHASED THE CONDITIONAL SALES CONTRACT IN GOOD FAITH, BELIEVING THAT
PAUL WALKER WAS THE PURCHASER AND OWNER OF THE AUTOMOBILE.  IT HAD NO
KNOWLEDGE, INFORMATION OR SUSPICION OF THE TRUE FACTS UNTIL AFTER THE
AUTOMOBILE HAD BEEN SEIZED."  THIS IS ENOUGH TO SHOW COMPLIANCE WITH
SUB-SECTION (B)(1).  THERE WAS AN INTEREST ACQUIRED IN GOOD FAITH. 

AFTER INVESTIGATION OF THE RECORD AND REPUTATION OF PAUL WALKER,
FOLLOWED BY FAVORABLE REPORTS, AND BELIEVING HIM TO BE PURCHASER AND
OWNER OF THE AUTOMOBILE, CLAIMANT IN GOOD FAITH ACQUIRED THE SALES
CONTRACT.  IT HAD NO KNOWLEDGE, INFORMATION OR SUSPICION THAT PAUL
WALKER WAS ONLY A "STRAW" PURCHASER.  THIS IS ENOUGH TO SHOW COMPLIANCE
WITH SUB-SECTION (B)(2).  THE SUGGESTION THAT SINCE RESPONDENT KNEW
AUTOMOBILES WERE FREQUENTLY USED FOR VIOLATION OF LIQUOR LAWS IT
THEREFORE HAD REASON TO BELIEVE THAT THE ONE IN QUESTION WOULD BE SO
USED IS NOT WELL FOUNDED.  THE FINDINGS POSITIVELY AFFIRM THAT IT
ENTERTAINED NO SUCH BELIEF OR SUSPICION. 

THE DIFFICULT PHRASING OF SUB-SECTION (B)(3) HAS PRODUCED DIVERGENT
VIEWS CONCERNING ITS MEANING. 

IN FEDERAL MOTOR FINANCE V. UNITED STATES, 88 F.2D 90, 93, THE
CIRCUIT COURT OF APPEALS EIGHTH CIRCUIT SAID - 

"WE THINK THE FAIR INTENDMENT OF THE LANGUAGE OF SUBSECTION (3)
CONCERNING REMISSION OF FORFEITURE IS THAT THE APPELLANT COULD NOT RELY
ENTIRELY UPON A COURSE OF BUSINESS WHEREBY IT ACQUIRED AN INTEREST IN
THE CAR SO NEARLY APPROXIMATING THE TOTAL VALUE THEREOF WITHOUT TAKING
CARE TO ASCERTAIN WHO THE REAL OWNER WAS IN POSSESSION OF AND USING THE
CAR." 

IN THE CAUSES NOW BEFORE US (93 F.2D 771, 773; 99 F.2D 498, 500), THE
CIRCUIT COURT OF APPEALS ACCEPTED THE VIEW THAT - 

"THE INVOLVED LANGUAGE OF SUBSECTION (B)(3) OF THE ACT DOES PERMIT
THE POSSIBLE INTERPRETATION THAT THE LIENOR IS CHARGED WITH THE DUTY OF
MAKING INQUIRY AS TO EVERY ONE, BEARING A BAD REPUTATION OR RECORD, WHO
MAY HAVE A RIGHT UNDER THE CONTRACT OF SALE, WHETHER OR NOT IT APPEARS
ON THE FACE OF THE INSTRUMENT.  SEE FEDERAL MOTOR FINANCE V. UNITED
STATES, 8 CIR., 88 F.2D 90.  BUT IN OUR VIEW CONGRESS DID NOT INTEND TO
IMPOSE UPON THE LIENOR THE OBLIGATION TO ASCERTAIN AT HIS PERIL THE
IDENTITY OF EVERY PERSON HAVING AN INTEREST IN THE PROPERTY AND TO MAKE
INQUIRY OF THE LAW ENFORCEMENT OFFICERS AS TO THE PREVIOUS RECORD AND
REPUTATION OF EVERY SUCH PERSON, UNLESS FROM THE DOCUMENTS THEMSELVES
OR OTHER SURROUNDING CIRCUMSTANCES THE LIENOR POSSESSES INFORMATION
WHICH WOULD LEAD A REASONABLY PRUDENT AND LAW-ABIDING PERSON TO MAKE A
FURTHER INVESTIGATION." 

SEE ALSO C.I.T. CORPORATION V. UNITED STATES, (FOURTH CIRCUIT) 86
F.2D 311, AND UNITED STATES V. C.I.T. CORPORATION, (SECOND CIRCUIT) 93
F.2D 469. 

COUNSEL FOR PETITIONER NOW MAINTAIN:  "THAT UNDER THE LANGUAGE OF THE
STATUTE ((B)(3)) THE CLAIMANT IS REQUIRED TO INVESTIGATE THE REAL
PURCHASER AT ITS PERIL AND THAT IF IT FAILS TO DO SO, AS BETWEEN IT AND
THE GOVERNMENT, THE CLAIMANT ASSUMES THE RISK OF FRAUD PERPETRATED UPON
IT BY THE DEALER AND THE BOOTLEGGER.  IN ANY EVENT, THE CLAIMANT SHOULD
HAVE BEEN REQUIRED TO SHOW THAT IT AT LEAST MADE A REASONABLE EFFORT TO
ASCERTAIN WHO THE REAL PURCHASER AND USER OF THE CAR WAS SO THAT HE
COULD BE INVESTIGATED AS REQUIRED BY THE STATUTE." 

MANIFESTLY, SEC. 204 IS A REMEDIAL MEASURE.  IT EMPOWERS THE COURTS,
EXERCISING SOUND DISCRETION, TO AFFORD RELIEF TO INNOCENT PARTIES
HAVING INTERESTS IN CONDEMNED PROPERTY WHERE THE CLAIM IS REASONABLE
AND JUST.  ITS PRIMARY PURPOSE IS NOT TO PROTECT THE REVENUES; BUT THIS
IS PROPER MATTER FOR CONSIDERATION WHENEVER REMISSION IS SOUGHT.  THE
POINT TO BE SOUGHT IS THE INTENT OF THE LAWMAKING POWERS.  FORFEITURES
ARE NOT FAVORED; THEY SHOULD BE ENFORCED ONLY WHEN WITHIN BOTH LETTER
AND SPIRIT OF THE LAW.  FARMERS' & M. NATIONAL BANK V. DEARING, 91 U.S.
29, 33-35.  IF ANY CLAIMANT HAS BEEN NEGLIGENT OR IN GOOD CONSCIENCE
OUGHT NOT BE RELIEVED, THE COURT SHOULD DENY HIS APPLICATION. 

CONSIDERATION OF THE STATUTORY PROVISIONS RELATIVE TO REMISSIONS
PRIOR TO SEC. 204 AND THE CIRCUMSTANCES OF ITS ADOPTION WILL ENLIGHTEN
THE PURPOSE ENTERTAINED BY CONGRESS. 

1620-1621) - DERIVED FROM ACTS JUNE 30, 1864 AND JULY 13, 1866 -
PROVIDE THAT WHENEVER ANY COMMODITY IN RESPECT OF WHICH A TAX IS
IMPOSED, IS REMOVED WITH INTENT TO DEFRAUD THE UNITED STATES, IT SHALL
BE FORFEITED "AND EVERY VESSEL, BOAT, CART, CARRIAGE, OR OTHER
CONVEYANCE WHATSOEVER, AND ALL HORSES OR OTHER ANIMALS, AND ALL THINGS
USED IN THE REMOVAL OR FOR THE DEPOSIT OR CONCEALMENT THEREOF,
RESPECTIVELY, SHALL BE FORFEITED."  "THE PROCEEDINGS TO ENFORCE SUCH
FORFEITURES SHALL BE IN THE NATURE OF A PROCEEDING IN REM IN THE
CIRCUIT COURT OR DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
WHERE SUCH SEIZURE IS MADE."  FN1 

JULY 13, 1866 AND JUNE 6, 1872 - PROVIDE THAT WHEN GOODS, WARES, OR
MERCHANDISE SEIZED AS SUBJECTS OF FORFEITURE, DO NOT EXCEED $500 IN
VALUE, THEY MAY BE RESTORED TO THE CLAIMANT UPON THE EXECUTION OF A
BOND AND THIS SHALL BE DELIVERED TO THE DISTRICT ATTORNEY FOR PROPER
PROCEEDINGS; IF NO BOND, THE ARTICLES SHALL BE SOLD AND THE PROCEEDS
PAID INTO THE TREASURY.  WITHIN A YEAR ANY CLAIMANT MAY APPLY TO THE
SECRETARY FOR REMISSION WHICH MAY BE GRANTED "UPON SATISFACTORY PROOF,
TO BE FURNISHED IN SUCH MANNER AS HE SHALL PRESCRIBE:  PROVIDED, THAT
IT SHALL BE SATISFACTORILY SHOWN  ...  THAT THE SAID FORFEITURE WAS
INCURRED WITHOUT WILLFUL NEGLIGENCE OR ANY INTENTION OF FRAUD ON THE
PART OF THE OWNER OF SAID PROPERTY."  FN2    WHERE THE VALUE EXCEEDS
$500 OR BOND IS GIVEN, FORFEITURE MUST BE SOUGHT IN COURT THROUGH A
LIBEL IN REM.  UNITED STATES V. TWO BAY MULES, ETC., 36 F. 84; UNITED
STATES V. MINCEY, 254 F. 287; LOGAN V. UNITED STATES, 260 F. 746;
UNITED STATES V. ONE BAY HORSE, 270 F. 590. 

15 STAT. 125, 166; 26 U.S.C. SEC. 1661) PROVIDES - 

"THE COMMISSIONER OF INTERNAL REVENUE, WITH THE ADVICE AND CONSENT OF
THE SECRETARY OF THE TREASURY, MAY COMPROMISE ANY CIVIL OR CRIMINAL
CASE ARISING UNDER THE INTERNAL-REVENUE LAWS INSTEAD OF COMMENCING SUIT
THEREON; AND, WITH THE ADVICE AND CONSENT OF THE SAID SECRETARY AND THE
RECOMMENDATION OF THE ATTORNEY-GENERAL, HE MAY COMPROMISE ANY SUCH CASE
AFTER A SUIT THEREON HAS BEEN COMMENCED.  WHENEVER A COMPROMISE IS MADE
IN ANY CASE THERE SHALL BE PLACED ON FILE IN THE OFFICE OF THE
COMMISSIONER THE OPINION OF THE SOLICITOR OF INTERNAL REVENUE, OR OF
THE OFFICER ACTING AS SUCH, WITH HIS REASONS THEREFOR, WITH A STATEMENT
OF THE AMOUNT OF TAX ASSESSED, THE AMOUNT OF ADDITIONAL TAX OR PENALTY
IMPOSED BY LAW IN CONSEQUENCE OF THE NEGLECT OR DELINQUENCY OF THE
PERSON AGAINST WHOM THE TAX IS ASSESSED, AND THE AMOUNT ACTUALLY PAID
IN ACCORDANCE WITH THE TERMS OF THE COMPROMISE." 

(AMENDED, ACTS FEBRUARY 26, 1926, C. 27, SEC. 1201, 44 STAT. 9, 126;
MAY 10, 1934, C. 277, SEC. 512(B), 48 STAT. 680, 759; MAY 28, 1938, C.
289, SEC. 815, 52 STAT. 447, 578.) 

WILSON MOTOR CO. V. UNITED STATES, (NINTH CIRCUIT) 84 F.2D 630, 632,
STATES - "THE GOVERNMENT'S BRIEF ADVISES THAT PRIOR TO THE ACT OF
AUGUST 27, 1935, THE PROCEDURE OF THE GOVERNMENT TO AFFORD RELIEF TO
THESE INNOCENT OWNERS WAS UNDER THE PROVISIONS OF COMPROMISE POWERS
GIVEN THE ATTORNEY GENERAL AND THE TREASURY UNDER SECTION 1661, 26
U.S.C.A." 

IN CONNECTION WITH THE SECTIONS REFERRED TO ABOVE THE U.S.C.
ANNOTATED POINTS TO THEIR ORIGIN AND HISTORY. 

THE NATIONAL PROHIBITION ACT (OCTOBER 28, 1919, C. 85, TITLE II, SEC.
26, 41 STAT. 305, 315, TITLE 27 U.S.C. SEC. 40) PROVIDED THAT "WHENEVER
INTOXICATING LIQUORS TRANSPORTED OR POSSESSED ILLEGALLY SHALL BE SEIZED
BY AN OFFICER HE SHALL TAKE POSSESSION OF THE VEHICLE AND TEAM OR
AUTOMOBILE, BOAT, AIR OR WATER CRAFT, OR ANY OTHER CONVEYANCE, AND
SHALL ARREST ANY PERSON IN CHARGE THEREOF."  THE PERSON ARRESTED SHALL
BE PROCEEDED AGAINST BUT THE VEHICLE OR CONVEYANCE SHALL BE RETURNED
UPON EXECUTION OF A BOND.  UPON HIS CONVICTION THE COURT SHALL ORDER
THE LIQUOR DESTROYED "AND UNLESS GOOD CAUSE TO THE CONTRARY IS SHOWN BY
THE OWNER, SHALL ORDER A SALE BY PUBLIC AUCTION OF THE PROPERTY
SEIZED."  FN3  SEE RICHBOURG MOTOR CO. V. UNITED STATES, 281 U.S. 528. 
THIS WAS REPEALED BY THE REPEAL AND ENFORCEMENT ACT, SUPRA. 

THE ACT OF SEPTEMBER 21, 1922, (C. 356, SEC. 618, 42 STAT. 858, 987)
PROVIDES - 

"WHENEVER ANY PERSON INTERESTED IN ANY VESSEL, VEHICLE, MERCHANDISE,
OR BAGGAGE SEIZED UNDER THE PROVISIONS OF THIS ACT, OR WHO HAS
INCURRED, OR IS ALLEGED TO HAVE INCURRED, ANY FINE OR PENALTY
THEREUNDER, FILES WITH THE SECRETARY OF THE TREASURY IF UNDER THE
CUSTOMS LAWS, AND WITH THE SECRETARY OF COMMERCE IF UNDER THE
NAVIGATION LAWS, BEFORE THE SALE OF SUCH VESSEL, VEHICLE, MERCHANDISE,
OR BAGGAGE A PETITION FOR THE REMISSION OR MITIGATION OF SUCH FINE,
PENALTY, OR FORFEITURE, THE SECRETARY OF THE TREASURY, OR THE SECRETARY
OF COMMERCE, IF HE FINDS THAT SUCH FINE, PENALTY, OR FORFEITURE WAS
INCURRED WITHOUT WILLFUL NEGLIGENCE OR WITHOUT ANY INTENTION ON THE
PART OF THE PETITIONER TO DEFRAUD THE REVENUE OR TO VIOLATE THE LAW, OR
FINDS THE EXISTENCE OF SUCH MITIGATING CIRCUMSTANCES AS TO JUSTIFY THE
REMISSION OR MITIGATION OF SUCH FINE, PENALTY, OR FORFEITURE, MAY REMIT
OR MITIGATE THE SAME UPON SUCH TERMS AND CONDITIONS AS HE DEEMS
REASONABLE AND JUST, OR ORDER DISCONTINUANCE OF ANY PROSECUTION
RELATING THERETO." 

(REENACTED BY ACT JULY 17, 1930, C. 497, SEC. 618, 46 STAT. 590, 757;
19 U.S.C. SEC. 1618.) 

THE ACT MAY 29, 1928(C. 852, SEC. 709, 45 STAT. 791, 882, 26 U.S.C.
SEC. 1626) EXTENDED "THE PROVISIONS OF LAW APPLICABLE TO THE REMISSION
OR MITIGATION BY THE SECRETARY OF THE TREASURY OF FORFEITURES UNDER THE
CUSTOMS LAWS  ...  TO FORFEITURES INCURRED OR ALLEGED TO HAVE BEEN
INCURRED, BEFORE OR AFTER THE ENACTMENT OF THIS ACT, UNDER THE INTERNAL
REVENUE LAWS." 

IN THE SITUATION DISCLOSED BY THE FOREGOING SUMMARY, CONGRESS CAME TO
CONSIDER THE ACT OF AUGUST 27, 1935.  THE JUDICIARY COMMITTEES OF
SENATE AND HOUSE MADE REPORTS (SENATE REPORT NO. 1330, HOUSE REPORT NO.
1601, 74TH CONG., 1ST SESSION).  IN EACH THE PARAGRAPHS RELATIVE TO
SEC. 204(A) AND (B) ARE THE SAME IN SUBSTANCE.  FN4 

A REPRESENTATIVE OF THE TREASURY DEPARTMENT MADE A STATEMENT TO THE
SENATE JUDICIARY COMMITTEE.  AN EXTRACT FROM THIS APPEARS IN THE
MARGIN.  FN5 

A REARRANGEMENT OF THE WORDS OF SUB-SECTION (B)(3) WILL ENLIGHTEN ITS
MEANING - 

"THE COURT SHALL NOT ALLOW THE (REQUEST) - CLAIM - OF ANY CLAIMANT
FOR REMISSION OR MITIGATION, IF IT APPEARS THAT THE INTEREST ASSERTED
BY (HIM) - THE CLAIMANT - ARISES OUT OF OR IS IN ANY WAY SUBJECT TO ANY
CONTRACT OR AGREEMENT UNDER WHICH ANY PERSON HAVING A RECORD OR
REPUTATION FOR VIOLATING LAWS OF THE UNITED STATES OR OF ANY STATE
RELATING TO LIQUOR HAS A RIGHT WITH RESPECT TO SUCH VEHICLE OR
AIRCRAFT, UNLESS AND UNTIL HE (THE CLAIMANT) PROVES THAT BEFORE (HE) -
SUCH CLAIMANT - ACQUIRED HIS INTEREST, OR SUCH OTHER PERSON ACQUIRED
HIS RIGHT UNDER SUCH CONTRACT OR AGREEMENT, WHICHEVER OCCURRED LATER,
(HE) - THE CLAIMANT - HIS OFFICER OR AGENT, WAS INFORMED IN ANSWER TO
HIS INQUIRY, AT (CERTAIN HEADQUARTERS SPECIFIED IN THE ALTERNATIVE) AS
TO THE CHARACTER OR FINANCIAL STANDING OF SUCH OTHER PERSON, THAT SUCH
OTHER PERSON HAD NO SUCH RECORD OR REPUTATION." 

IF THE WORDS OF SEC. 204(B)(3) BE TAKEN LITERALLY, WITHOUT REGARD TO
HISTORY OR PURPOSE OF THE ENACTMENT, THEY INHIBIT REMISSION BY THE
COURT UNLESS ONE WHO CLAIMS AN INTEREST MADE ACTUAL INQUIRY CONCERNING
EVERY PERSON WITH RECORD OR REPUTATION FOR VIOLATING THE LIQUOR LAWS
WHO IN FACT (ALTHOUGH WHOLLY UNSUSPECTED) HAD ACQUIRED SOME RIGHT TO
THE VEHICLE.  THERE WOULD BE ABSOLUTE FORFEITURE ALTHOUGH THE CLAIMANT
ACQUIRED HIS INTEREST IN THE UTMOST GOOD FAITH AND WITHOUT SUSPICION OF
ANY UNDISCLOSED INTEREST; ALTHOUGH INDEED, HE HAD DILIGENTLY BUT
UNSUCCESSFULLY SOUGHT INFORMATION CONCERNING ALL THE FACTS FROM EVERY
PERSON CONNECTED WITH THE TRANSACTION.  THUS CONSTRUED THE PROVISION
WOULD REQUIRE ABSOLUTE FORFEITURE NOTWITHSTANDING THE CLAIMANT COULD
NOT BY THE UTMOST DILIGENCE ASCERTAIN THE TRUE SITUATION.  NO GREATER
REASON EXISTS FOR SAYING A CLAIMANT SHOULD BE RELIEVED IF HE MADE
UNSUCCESSFUL INQUIRY OF THE SELLER CONCERNING UNDISCLOSED MATTERS THAN
THERE IS FOR RELIEF WHEN HE HAD NO CAUSE TO SUSPECT THE EXISTENCE OF AN
UNDISCLOSED INTEREST - NO CAUSE TO QUESTION APPEARANCES.  A MEASURE
REQUIRING ABSOLUTE FORFEITURE UNDER SUCH CIRCUMSTANCES PROBABLY WOULD
BE EXPRESSED IN LANGUAGE SUFFICIENTLY PLAIN TO ADMIT NO REASONABLE
DOUBT. 

DURING MANY YEARS INNOCENT CLAIMANTS HAD A CLEAR REMEDY EITHER BY
APPEAL TO THE DISCRETION OF THE SECRETARY OF THE TREASURY OR BY
APPLICATION FOR COMPROMISE ADDRESSED TO THE ATTORNEY GENERAL AND
TREASURY OFFICIALS (WILSON MOTOR CO. V. UNITED STATES, SUPRA); OR UNDER
THE PROHIBITION ACT, TO THE COURT (RICHBOURG MOTOR CO. V. UNITED
STATES, SUPRA).  THIS SITUATION WAS CALLED TO THE ATTENTION OF THE
SENATE COMMITTEE BY THE REPRESENTATIVE OF THE TREASURY.  HE ALSO
POINTED OUT THAT BEFORE RESTORING A CAR THE SECRETARY REQUIRED THAT THE
CLAIMANT "MUST PROVE THAT HE MADE AN INVESTIGATION AS TO WHETHER OR NOT
THE PURCHASER HAD A BOOTLEGGER RECORD AND FOUND THAT HE HAD NONE."  THE
SECRETARY "CONSIDERS THAT THE BOOTLEG HAZARD IS AN ELEMENT INVOLVED IN
THE CREDIT RISK, AND IS JUST AS MUCH A PART OF THE INVESTIGATION BY THE
FINANCE COMPANY OF A PERSON AS A CREDIT RISK AS IS HIS FINANCIAL
STANDING IN THE COMMUNITY."  THE COMMITTEE REPORTED IN RESPECT OF
204(B)(3) - "THIS LAST REQUIREMENT IS PREDICATED UPON THE RECOGNITION
OF THE 'BOOTLEG HAZARD' AS AN ELEMENT TO BE CONSIDERED IN INVESTIGATING
A PERSON AS A CREDIT RISK." 

THESE FACTS INDICATE THAT CONGRESS INTENDED A REASONABLE INQUIRY
CONCERNING THE BOOTLEG RISK SHOULD BE MADE IN CONNECTION WITH THE
INVESTIGATION OF FINANCIAL RESPONSIBILITY.  THEY NEGATIVE THE NOTION
THAT A WHOLLY INNOCENT CLAIMANT AT HIS PERIL MUST SHOW INQUIRY
CONCERNING SOMETHING UNKNOWN AND OF WHICH HE HAD NO SUSPICION.  DEALERS
DO NOT INVESTIGATE WHAT THEY HAVE NO CAUSE TO SUSPECT. 

THE FORFEITURE ACTS ARE EXCEEDINGLY DRASTIC.  THEY WERE INTENDED FOR
PROTECTION OF THE REVENUES, NOT TO PUNISH WITHOUT FAULT.  IT WOULD
REQUIRE UNCLOUDED LANGUAGE TO COMPEL THE CONCLUSION THAT CONGRESS
ABANDONED THE EQUITABLE POLICY, OBSERVED FOR A VERY LONG TIME, OF
RELIEVING THOSE WHO ACT IN GOOD FAITH AND WITHOUT NEGLIGENCE, AND
ADOPTED AN OPPRESSIVE AMENDMENT NOT DEMANDED BY THE TAX OFFICIALS OR
POINTED OUT IN THE REPORTS OF ITS COMMITTEES. 

SUB-SECTION (B)(3) WAS INTENDED TO PREVENT REMISSION TO A CLAIMANT
WHO HAD FAILED TO INQUIRE WHEN HE SHOULD HAVE DONE SO, TO ONE
CHARGEABLE WITH WILLFUL NEGLIGENCE OR PURPOSE OF FRAUD.  IT WOULD BE
EXCESSIVELY HARSH, UNREASONABLE INDEED, TO SAY THAT ONE DEALING IN
ENTIRE GOOD FAITH MUST, AT HIS PERIL, FIRST DISCOVER AND THEN MAKE
INQUIRY CONCERNING SOMEBODY OF WHOSE EXISTENCE HE HAS NO KNOWLEDGE OR
SUSPICION.  WE CANNOT THINK CONGRESS INTENDED THUS TO BURDEN DEALING IN
ALL VEHICLES CAPABLE OF TRANSPORTING LIQUOR. 

IT SHOULD BE OBSERVED THAT THE FOLLOWING THINGS ARE POSSIBLE SUBJECTS
OF SEIZURE AND FORFEITURE BECAUSE OF LIQUOR LAW VIOLATIONS:  "EVERY
VESSEL, BOAT, CART, CARRIAGE, OR OTHER CONVEYANCE WHATSOEVER, AND ALL
HORSES OR OTHER ANIMALS, AND ALL THINGS USED IN THE REMOVAL OR FOR THE
DEPOSIT OR CONCEALMENT, ETC."  "VEHICLE" IS THUS DEFINED - "THAT IN OR
ON WHICH A PERSON OR THING IS OR MAY BE CARRIED FROM ONE PLACE TO
ANOTHER."  A WHEELBARROW, A COVERED WAGON, A "ROLLS-ROYCE," THE PATIENT
MULE, A "MAN OF WAR," AND POSSIBLY A PULLMAN CAR OR OCEAN LINER IS A
VEHICLE.  GOLDSMITH-GRANT CO. V. UNITED STATES, 254 U.S. 505; UNITED
STATES V. TWO BAY MULES, SUPRA; UNITED STATES V. ONE BAY HORSE, SUPRA. 

SUB-SECTION (B)(3) APPLIES NOT ONLY TO TRANSACTIONS BY FINANCIAL
CONCERNS LIKE RESPONDENT BUT TO THOSE OF INDIVIDUALS AND CORPORATIONS
GREAT OR SMALL.  IT CONTEMPLATES AN INVESTIGATION AND THIS PRESUPPOSES
SOME REASON AT LEAST TO SUSPECT THE EXISTENCE OF THE SUBJECT OF
INVESTIGATION.  CONGRESS TOOK AWAY FROM EXECUTIVE OFFICERS THE POWER TO
MITIGATE FORFEITURES WHERE THE PROPERTY EXCEEDS $500 IN VALUE, AND GAVE
THIS TO THE COURT FAMILIAR WITH THE CIRCUMSTANCES; BUT IT LEFT WITH THE
SECRETARY OF THE TREASURY DISCRETION TO REMIT WHEN THE VALUE WAS BELOW
$500.  THE INTENT WAS TO REQUIRE THE COURTS TO EXACT PROOF OF INQUIRIES
LIKE THOSE DEMANDED BY THE TREASURY DEPARTMENT PRACTICE, AND DISCLOSED
BY ITS REPRESENTATIVE BEFORE THE SENATE COMMITTEE.  THE PETITIONER'S
VIEW, IF ADOPTED, WOULD SANCTION ONE STANDARD OF REMISSION FOR A
VEHICLE WORTH $500, ANOTHER WHEN APPRAISED AT A DOLLAR MORE. 

THE CHALLENGED DECREES MUST BE AFFIRMED. 

FN1  R.S. SEC. 3450(ACT JULY 13, 1866, C. 184, SEC. 14, 14 STAT. 98,
151; 26 U.S.C. SEC. 1441) - 

"(A)  EVERY PERSON WHO REMOVES, DEPOSITS, OR CONCEALS, OR IS
CONCERNED IN REMOVING, DEPOSITING, OR CONCEALING ANY GOODS OR
COMMODITIES FOR OR IN RESPECT WHEREOF ANY TAX IS IMPOSED, WITH INTENT
TO DEFRAUD THE UNITED STATES OF SUCH TAX ON ANY PART THEREOF, SHALL BE
LIABLE TO A FINE OR PENALTY OF NOT MORE THAN $500. 

     .         .         .         .  . 

"(3)  EVERY VESSEL, BOAT, CART, CARRIAGE, OR OTHER CONVEYANCE
WHATSOEVER, AND ALL HORSES OR OTHER ANIMALS, AND ALL THINGS USED IN THE
REMOVAL OR FOR THE DEPOSIT OR CONCEALMENT THEREOF, RESPECTIVELY, SHALL
BE FORFEITED." 

(THIS SECTION WAS AMENDED BY ACT JUNE 26, 1936(C. 830, TITLE III,
SEC. 325, 49 STAT. 1939, 1955) WHICH CHANGED THE PROVISION FOR $500
PENALTY TO A "FINE OF NOT MORE THAN $5,500 OR BE IMPRISONED FOR NOT
MORE THAN THREE YEARS, OR BOTH.") 

REVISED STATUTES SEC. 3453(ACT JUNE 30, 1864, C. 173, SEC. 48, 13
STAT. 223, 240; ACT JULY 13, 1866, C. 184, SEC. 9, 14 STAT. 98, 111; 26
U.S.C. SECS. 1620-1621) - 

"ALL GOODS, WARES, MERCHANDISE, ARTICLES, OR OBJECTS, ON WHICH TAXES
ARE IMPOSED, WHICH SHALL BE FOUND IN THE POSSESSION, OR CUSTODY, OR
WITHIN THE CONTROL OF ANY PERSON, FOR THE PURPOSE OF BEING SOLD OR
REMOVED BY HIM IN FRAUD OF THE INTERNAL-REVENUE LAWS, OR WITH DESIGN TO
AVOID PAYMENT OF SAID TAXES, MAY BE SEIZED BY THE COLLECTOR OR DEPUTY
COLLECTOR OF THE PROPER DISTRICT, OR BY SUCH OTHER COLLECTOR OR DEPUTY
COLLECTOR AS MAY BE SPECIALLY AUTHORIZED BY THE COMMISSIONER OF
INTERNAL REVENUE FOR THAT PURPOSE, AND SHALL BE FORFEITED TO THE UNITED
STATES.  AND ALL RAW MATERIALS FOUND IN THE POSSESSION OF ANY PERSON
INTENDING TO MANUFACTURE THE SAME INTO ARTICLES OF A KIND SUBJECT TO
TAX FOR THE PURPOSE OF FRAUDULENTLY SELLING SUCH MANUFACTURED ARTICLES,
OR WITH DESIGN TO EVADE THE PAYMENT OF SAID TAX; AND ALL TOOLS,
IMPLEMENTS, INSTRUMENTS, AND PERSONAL PROPERTY WHATSOEVER, IN THE PLACE
OR BUILDING, OR WITHIN ANY YARD OR INCLOSURE WHERE SUCH ARTICLES OR RAW
MATERIALS ARE FOUND, MAY ALSO BE SEIZED BY ANY COLLECTOR OR DEPUTY
COLLECTOR, AS AFORESAID, AND SHALL BE FORFEITED AS AFORESAID.  THE
PROCEEDINGS TO ENFORCE SUCH FORFEITURES SHALL BE IN THE NATURE OF A
PROCEEDING IN REM IN THE CIRCUIT COURT OR DISTRICT COURT OF THE UNITED
STATES FOR THE DISTRICT WHERE SUCH SEIZURE IS MADE."    FN2  REVISED
STATUTES SECS. 3460 AND 3461(ACT JULY 13, 1866, C. 184, SEC. 63, 14
STAT. 98, 169; ACT JUNE 6, 1872, C. 315, SEC. 40, 17 STAT. 230, 257; 26
U.S.C. SEC. 1624) - 

"SEC. 3460.  IN ALL CASES OF SEIZURE OF ANY GOODS, WARES, OR
MERCHANDISE, AS BEING SUBJECT TO FORFEITURE UNDER ANY PROVISION OF THE
INTERNAL-REVENUE LAWS, WHICH, IN THE OPINION OF THE COLLECTOR OR DEPUTY
COLLECTOR MAKING THE SEIZURE, ARE OF THE APPRAISED VALUE OF FIVE
HUNDRED DOLLARS OR LESS, THE SAID COLLECTOR OR DEPUTY COLLECTOR SHALL,
EXCEPT IN CASES OTHERWISE PROVIDED, PROCEED AS FOLLOWS: 

     .         .         .         .         .   "SECOND.  IF THE
SAID GOODS ARE FOUND BY THE SAID APPRAISERS TO BE OF THE VALUE OF FIVE
HUNDRED DOLLARS OR LESS, THE SAID COLLECTOR OR DEPUTY COLLECTOR SHALL
PUBLISH A NOTICE, FOR THREE WEEKS, IN SOME NEWSPAPER OF THE DISTRICT
WHERE THE SEIZURE WAS MADE, DESCRIBING THE ARTICLES, AND STATING THE
TIME, PLACE, AND CAUSE OF THEIR SEIZURE, AND REQUIRING ANY PERSON
CLAIMING THEM TO APPEAR AND MAKE SUCH CLAIM WITHIN THIRTY DAYS FROM THE
DATE OF THE FIRST PUBLICATION OF SUCH NOTICE. 

"THIRD.  ANY PERSON CLAIMING THE GOODS, WARES, OR MERCHANDISE SO
SEIZED, WITHIN THE TIME SPECIFIED IN THE NOTICE, MAY FILE WITH THE SAID
COLLECTOR OR DEPUTY COLLECTOR A CLAIM, STATING HIS INTEREST IN THE
ARTICLES SEIZED, AND MAY EXECUTE A BOND TO THE UNITED STATES IN THE
PENAL SUM OF TWO HUNDRED AND FIFTY DOLLARS, WITH SURETIES TO BE
APPROVED BY THE SAID COLLECTOR OR DEPUTY COLLECTOR, CONDITIONED THAT,
IN CASE OF CONDEMNATION OF THE ARTICLES SO SEIZED, THE OBLIGORS SHALL
PAY ALL THE COSTS AND EXPENSES OF THE PROCEEDINGS TO OBTAIN SUCH
CONDEMNATION; AND UPON DELIVERY OF SUCH BOND TO THE COLLECTOR OR DEPUTY
COLLECTOR, HE SHALL TRANSMIT THE SAME, WITH THE DUPLICATE LIST OR
DESCRIPTION OF THE GOODS SEIZED, TO THE UNITED STATES DISTRICT ATTORNEY
FOR THE DISTRICT, AND SAID ATTORNEY SHALL PROCEED THEREON IN THE
ORDINARY MANNER PRESCRIBED BY LAW. 

"FOURTH.  IF NO CLAIM IS INTERPOSED AND NO BOND IS GIVEN WITHIN THE
TIME ABOVE SPECIFIED, THE COLLECTOR OR DEPUTY COLLECTOR, AS THE CASE
MAY BE, SHALL GIVE TEN DAYS' NOTICE OF THE SALE OF THE GOODS, WARES, OR
MERCHANDISE BY PUBLICATION, AND, AT THE TIME AND PLACE SPECIFIED IN THE
NOTICE, SHALL SELL THE ARTICLES SO SEIZED AT PUBLIC AUCTION, AND, AFTER
DEDUCTING THE EXPENSE OF APPRAISEMENT AND SALE, HE SHALL DEPOSIT THE
PROCEEDS TO THE CREDIT OF THE SECRETARY OF THE TREASURY. 

"SEC. 3461.  WITHIN ONE YEAR AFTER THE SALE OF ANY GOODS, WARES, OR
MERCHANDISE, AS PROVIDED IN THE PRECEDING SECTION, ANY PERSON CLAIMING
TO BE INTERESTED IN THE PROPERTY SOLD MAY APPLY TO THE SECRETARY OF THE
TREASURY FOR A REMISSION OF THE FORFEITURE THEREOF, OR ANY PART
THEREOF, AND A RESTORATION OF THE PROCEEDS OF THE SALE; AND THE SAID
SECRETARY MAY GRANT THE SAME UPON SATISFACTORY PROOF, TO BE FURNISHED
IN SUCH MANNER AS HE SHALL PRESCRIBE:  PROVIDED, THAT IT SHALL BE
SATISFACTORILY SHOWN THAT THE APPLICANT, AT THE TIME OF THE SEIZURE AND
SALE OF THE SAID PROPERTY, AND DURING THE INTERVENING TIME, WAS ABSENT,
OUT OF THE UNITED STATES, OR IN SUCH CIRCUMSTANCES AS PREVENTED HIM
FROM KNOWING OF THE SEIZURE, AND THAT HE DID NOT KNOW OF THE SAME; AND
ALSO THAT THE SAID FORFEITURE WAS INCURRED WITHOUT WILLFUL NEGLIGENCE
OR ANY INTENTION OF FRAUD ON THE PART OF THE OWNER OF SAID PROPERTY. 
IF NO APPLICATION FOR SUCH RESTORATION IS MADE WITHIN ONE YEAR, AS
HEREINBEFORE PRESCRIBED, THE SECRETARY OF THE TREASURY SHALL, AT THE
EXPIRATION OF THE SAID TIME, CAUSE THE PROCEEDS OF THE SALE OF THE SAID
PROPERTY TO BE DISTRIBUTED ACCORDING TO LAW, AS IN THE CASE OF GOODS,
WARES, OR MERCHANDISE CONDEMNED AND SOLD PURSUANT TO THE DECREE OF A
COMPETENT COURT." 

FN3  "WHEN THE COMMISSIONER, HIS ASSISTANTS, INSPECTORS, OR ANY
OFFICER OF THE LAW SHALL DISCOVER ANY PERSON IN THE ACT OF TRANSPORTING
IN VIOLATION OF THE LAW, INTOXICATING LIQUORS IN ANY WAGON, BUGGY,
AUTOMOBILE, WATER OR AIR CRAFT, OR OTHER VEHICLE, IT SHALL BE HIS DUTY
TO SEIZE ANY AND ALL INTOXICATING LIQUORS FOUND THEREIN BEING
TRANSPORTED CONTRARY TO LAW.  WHENEVER INTOXICATING LIQUORS TRANSPORTED
OR POSSESSED ILLEGALLY SHALL BE SEIZED BY AN OFFICER HE SHALL TAKE
POSSESSION OF THE VEHICLE AND TEAM OR AUTOMOBILE, BOAT, AIR OR WATER
CRAFT, OR ANY OTHER CONVEYANCE, AND SHALL ARREST ANY PERSON IN CHARGE
THEREOF.  SUCH OFFICER SHALL AT ONCE PROCEED AGAINST THE PERSON
ARRESTED UNDER THE PROVISIONS OF THIS TITLE IN ANY COURT HAVING
COMPETENT JURISDICTION; BUT THE SAID VEHICLE OR CONVEYANCE SHALL BE
RETURNED TO THE OWNER UPON EXECUTION BY HIM OF A GOOD AND VALID BOND,
WITH SUFFICIENT SURETIES, IN A SUM DOUBLE THE VALUE OF THE PROPERTY,
WHICH SAID BOND SHALL BE APPROVED BY SAID OFFICER AND SHALL BE
CONDITIONED TO RETURN SAID PROPERTY TO THE CUSTODY OF SAID OFFICER ON
THE DAY OF TRIAL TO ABIDE THE JUDGMENT OF THE COURT.  THE COURT UPON
CONVICTION OF THE PERSON SO ARRESTED SHALL ORDER THE LIQUOR DESTROYED,
AND UNLESS GOOD CAUSE TO THE CONTRARY IS SHOWN BY THE OWNER, SHALL
ORDER A SALE BY PUBLIC AUCTION OF THE PROPERTY SEIZED, AND THE OFFICER
MAKING THE SALE, AFTER DEDUCTING THE EXPENSES OF KEEPING THE PROPERTY,
THE FEE FOR THE SEIZURE, AND THE COST OF THE SALE, SHALL PAY ALL LIENS,
ACCORDING TO THEIR PRIORITIES, WHICH ARE ESTABLISHED, BY INTERVENTION
OR OTHERWISE AT SAID HEARING OR IN OTHER PROCEEDING BROUGHT FOR SAID
PURPOSE, AS BEING BONA FIDE AND AS HAVING BEEN CREATED WITHOUT THE
LIENOR HAVING ANY NOTICE THAT THE CARRYING VEHICLE WAS BEING USED OR
WAS TO BE USED FOR ILLEGAL TRANSPORTATION OF LIQUOR, AND SHALL PAY THE
BALANCE OF THE PROCEEDS INTO THE TREASURY OF THE UNITED STATES AS
MISCELLANEOUS RECEIPTS.  ALL LIENS AGAINST PROPERTY SOLD UNDER THE
PROVISIONS OF THIS SECTION SHALL BE TRANSFERRED FROM THE PROPERTY TO
THE PROCEEDS OF THE SALE OF THE PROPERTY." 

FN4  HOUSE REPORTS, VOL. 4, 74TH CONGRESS, 1ST SESSION, 1935, REPORT
NO. 1601, P. 6 - 

"SECTION 204(A) OF SECTION 204 PROVIDES THAT IN ANY COURT PROCEEDING
FOR THE FORFEITURE UNDER THE INTERNAL-REVENUE LAWS OF ANY VEHICLE OR
AIRCRAFT SEIZED FOR A VIOLATION OF THE INTERNAL-REVENUE LAWS RELATING
TO LIQUOR, THE COURT SHALL, UPON DECREE OF FORFEITURE, HAVE EXCLUSIVE
JURISDICTION TO REMIT OR MITIGATE THE FORFEITURE.  AT THE PRESENT TIME,
THE COURT HAS AUTHORITY ONLY TO DECREE THE FORFEITURE, AND REMISSION OR
MITIGATION IS DEPENDENT UPON ADMINISTRATIVE ACTION.  SECTION 204
EXTENDS TO THE COURT WHICH DETERMINES WHETHER THE VEHICLE OR AIRCRAFT
SHALL BE FORFEITED BY REASON OF HAVING BEEN USED IN THE VIOLATION OF
INTERNAL-REVENUE LAWS RELATING TO LIQUOR, THE POWER TO DETERMINE
WHETHER THE CLAIM OF ANY PERSON HAVING AN INTEREST IN THE VEHICLE OR
AIRCRAFT SHOULD BE ALLOWED AFTER FORFEITURE.  THUS, IN ALL CASES WHERE
THE VALUE OF THE SEIZED PROPERTY EXCEEDS $500, AND IN ALL CASES WHERE
THE VALUE IS $500 OR LESS, BUT A BOND IS POSTED IN ORDER TO BRING THE
FORFEITURE PROCEEDING INTO COURT, THE COURT WILL HAVE EXCLUSIVE
JURISDICTION TO REMIT OR MITIGATE THE FORFEITURE.  IN THE EVENT THAT A
BOND IS NOT FILED IN CASES WHERE THE PROPERTY IS OF THE VALUE OF $500
OR LESS, THE POWER TO REMIT OR MITIGATE WILL REMAIN IN THE SECRETARY OF
THE TREASURY. 

"CERTAIN STANDARDS ARE GIVEN TO THE COURT TO GUIDE IT IN THIS
DETERMINATION.  THUS, UNDER SUBSECTION (B), THE CLAIMANT MUST PROVE
THAT HE ACQUIRED HIS INTEREST IN GOOD FAITH, THAT HE HAD NO KNOWLEDGE
OR REASON TO BELIEVE THAT THE VEHICLE OR AIRCRAFT WAS BEING OR WOULD BE
USED IN VIOLATING FEDERAL OR STATE LIQUOR LAWS, AND THAT, IF HIS
INTEREST ARISES OUT OF, OR IS SUBJECT TO, ANY AGREEMENT UNDER WHICH ANY
PERSON HAVING A RECORD OR REPUTATION FOR VIOLATING FEDERAL OR STATE
LIQUOR LAWS HAS A RIGHT WITH RESPECT TO THE VEHICLE OR AIRCRAFT, THE
CLAIMANT, BEFORE HE ACQUIRED HIS INTEREST, OR BEFORE THE OTHER PERSON
ACQUIRED HIS RIGHT, WHICH EVER OF THESE EVENTS OCCURRED LATER, INQUIRED
OF THE LAW ENFORCEMENT OFFICERS IN THE LOCALITY WHERE SUCH OTHER PERSON
ACQUIRED HIS RIGHT, OF THE LOCALITY IN WHICH SUCH OTHER PERSON THEN
RESIDED, AND OF EACH LOCALITY WHERE THE CLAIMANT MADE INQUIRY AS TO THE
CHARACTER OR CREDIT STANDING OF SUCH OTHER PERSON, WHETHER THE OTHER
PERSON HAD SUCH A RECORD OR REPUTATION, AND WAS INFORMED HE HAD NOT. 
THIS LAST REQUIREMENT IS PREDICATED UPON THE RECOGNITION OF THE
'BOOTLEG HAZARD' AS AN ELEMENT TO BE CONSIDERED IN INVESTIGATING A
PERSON AS A CREDIT RISK.  AS A MATTER OF SOUND BUSINESS PRACTICE,
AUTOMOBILE DEALERS, FINANCE COMPANIES, AND PROSPECTIVE LIENHOLDERS ON
AUTOMOBILES EXAMINE RECORDS, AND MAKE INQUIRY OF REFERENCES AND CREDIT
RATING AGENCIES AS TO THE OWNER'S OR PROSPECTIVE PURCHASER'S REPUTATION
FOR PAYING HIS DEBTS AND HIS ABILITY TO DO SO.  THIS SUBSECTION MERELY
REQUIRES THAT IN THE MAKING OF SUCH INQUIRY, THE 'BOOTLEG HAZARD' ALSO
BE EXAMINED AS ONE ASPECT OF THE CREDIT RISK." 

FN5  SENATE COMMITTEE HEARINGS, 1935, VOL. 495, NO. 4, P. 13 - 

"SECTION 204  ...  RELATES TO PROCEEDINGS IN COURT FOR THE FORFEITURE
OF VEHICLES OR AIRCRAFT SEIZED FOR VIOLATIONS OF INTERNAL-REVENUE
LAWS.  AT THE PRESENT TIME, CLAIMANTS OF INTERESTS IN VEHICLES OR
AIRCRAFT THAT HAVE BEEN SEIZED AND FORFEITED FOR VIOLATION OF INTERNAL
REVENUE LAWS, PETITION THE SECRETARY OF THE TREASURY FOR THE REMISSION
OR MITIGATION OF THE FORFEITURE, AND THE SECRETARY, UNDER THE LAW,
REQUIRES THE PERSON CLAIMING TO HAVE AN INNOCENT INTEREST TO SHOW THAT
HE HAD NO KNOWLEDGE OF THE UNLAWFUL USE OF THE VEHICLE OR AIRCRAFT. 
WHAT THIS SECTION WILL DO, IN THE CASE OF ANY COURT PROCEEDING FOR THE
FORFEITURE OF VEHICLES OR AIRCRAFT, IS TO GIVE THE COURT JURISDICTION
TO DETERMINE WHETHER OR NOT THE PERSON CLAIMING TO HAVE AN INNOCENT
INTEREST ACTUALLY HAD SUCH AN INTEREST.  UNDER THE PRESENT PRACTICE THE
SECRETARY OF THE TREASURY REQUIRES SUCH A SHOWING.  ...  THIS SECTION
IS OF PARTICULAR IMPORTANCE IN CONNECTION WITH THE DISCOUNTING BY A
FINANCE COMPANY OF AN AUTOMOBILE DEALER'S PAPER. 

"AT THE PRESENT TIME, THE SECRETARY OF THE TREASURY CONSIDERS THAT
THE BOOTLEG HAZARD IS AN ELEMENT INVOLVED IN THE CREDIT RISK, AND IS
JUST AS MUCH A PART OF THE INVESTIGATION BY THE FINANCE COMPANY OF A
PERSON AS A CREDIT RISK AS IS HIS FINANCIAL STANDING IN THE COMMUNITY. 
HE REQUIRES THAT BEFORE A CAR BE RETURNED TO THE PERSON CLAIMING AN
INNOCENT INTEREST, THE LATTER MUST PROVE THAT HE MADE AN INVESTIGATION
AS TO WHETHER OR NOT THE PURCHASER HAD A BOOTLEGGER RECORD, AND FOUND
THAT HE HAD NONE." 

MR. JUSTICE BUTLER AND MR. JUSTICE STONE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CAUSES. 

MR. JUSTICE DOUGLAS, DISSENTING: 

MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER AND I THINK THAT THE
JUDGMENTS BELOW SHOULD BE REVERSED. 

THE PROBLEM HERE INVOLVED RAISES THE QUESTION OF THE DUTY OF
AUTOMOBILE FINANCE COMPANIES TO INVESTIGATE THOSE WHO PURCHASE CARS
FROM DEALERS, FINANCED BY THOSE COMPANIES, IN ORDER TO DETERMINE
WHETHER THE OSTENSIBLE PURCHASERS ARE IN REALITY STRAW MEN FOR
BOOTLEGGERS.  HERE THE DEALERS KNEW THAT THE NAMED PURCHASERS WERE ONLY
NOMINAL PURCHASERS; AND THEY ALSO KNEW THE IDENTITY OF THE REAL
PURCHASERS.  BUT THE FINANCE COMPANIES MADE NO INQUIRY WHATSOEVER OF
THE DEALERS TO ASCERTAIN IF THOSE PURCHASERS WERE STRAW MEN.  THEY MADE
NO INQUIRY IN SPITE OF THE FACT THAT THE USE OF STRAW MEN BY
BOOTLEGGERS WAS NOT NOVEL.  THEY MADE NO INQUIRY IN SPITE OF THE
INTIMATE BUSINESS RELATIONS WHICH EXIST BETWEEN THEM AND THE DEALERS
AND THE PRESUMPTION OF AVAILABILITY OF SUCH INFORMATION WHICH THAT
RELATIONSHIP CREATES.  AND THEY NOW SEEK THE BENEFIT OF AN ACT WHICH
THE CONGRESS PASSED TO AMELIORATE SOME OF THE RISKS OF CONFISCATION AND
FORFEITURE.  WE DO NOT THINK THEY HAVE SATISFIED THE BURDEN WHICH THE
CONGRESS HAS PLACED UPON THEM. 

SEC. 204(A) GIVES THE DISTRICT COURT "EXCLUSIVE JURISDICTION TO REMIT
OR MITIGATE" FORFEITURES.  SEC. 204(B) SETS FORTH THREE CONDITIONS
PRECEDENT WHICH THE CLAIMANT MUST SATISFY BEFORE THE COURT MAY REMIT OR
MITIGATE A FORFEITURE.  TO SATISFY THE THIRD OF THESE CONDITIONS
CLAIMANT MUST PROVE UNDER CERTAIN CIRCUMSTANCES THAT HE MADE INQUIRY OF
DESIGNATED LAW ENFORCEMENT AGENCIES CONCERNING ANY PERSON FOR WHOM A
STRAW MAN PURCHASER WAS ACTING AND THAT HE WAS INFORMED ON SUCH INQUIRY
THAT SUCH PERSON HAD NO RECORD OR REPUTATION FOR VIOLATING THE LIQUOR
LAWS.  THE CIRCUMSTANCES UNDER WHICH CLAIMANT MUST MAKE THAT INQUIRY
EXIST "IF IT APPEARS THAT THE INTEREST ASSERTED BY THE CLAIMANT ARISES
OUT OF OR IS IN ANY WAY SUBJECT TO ANY CONTRACT OR AGREEMENT UNDER
WHICH ANY PERSON HAVING A RECORD OR REPUTATION FOR VIOLATING LAWS OF
THE UNITED STATES OR OF ANY STATE RELATING TO LIQUOR HAS A RIGHT WITH
RESPECT TO SUCH VEHICLE OR AIRCRAFT,  ..." 

TO BE SURE, THE PHRASING OF SEC. 204(B)(3) IS DIFFICULT.  BUT IT
MEANS TO US THAT A CLAIMANT MUST PROVE, IN ORDER TO SATISFY THAT
CONDITION, THAT HE MADE A REASONABLE INVESTIGATION TO ASCERTAIN IF THE
PURCHASER WAS A MERE STRAW MAN ACTING FOR ANOTHER OR WAS A LEGITIMATE
PURCHASER IN HIS OWN RIGHT.  THE WORDS "IF IT APPEARS" CARRY THAT
CONNOTATION.  A CONTRARY CONSTRUCTION DEFEATS THE PURPOSE OF THE
CONGRESS BY PLACING AN ENORMOUS PREMIUM ON LACK OF DILIGENCE.  THAT
CONSTRUCTION OPENS WIDE THE DOORS TO DEFRAUD THE REVENUE, FOR FINANCE
COMPANIES NEED LIFT NO FINGER NOR MAKE ANY EFFORT TO ASCERTAIN THE
EXISTENCE OF A STRAW MAN PURCHASER.  IGNORANCE NOW IS SURELY BLISS.  BY
FAILURE TO MAKE INQUIRY THEY CAN EFFECTIVELY INSULATE THEMSELVES EVEN
FROM THE KNOWLEDGE WHICH THEIR BUSINESS INTIMATES - THE DEALERS -
HAVE.  UNLESS INFORMED BY DISCLOSURES, IN THE WRITTEN CONTRACT OR
OTHERWISE, THEY CAN CONTENTEDLY ASSUME THAT THE PURCHASER IS NOT A
STRAW MAN FOR A BOOTLEGGER.  THAT THEY WILL THUS BE VOLUNTARILY
INFORMED BY THE PARTIES OR BY OTHERS SEEMS UNLIKELY.  SINCE THE
FUNCTION OF THE STRAW MAN IS TO CONCEAL THE BOOTLEGGER, NEITHER THE
STRAW MAN NOR THE BOOTLEGGER CAN BE EXPECTED TO STEP FORWARD WITH THE
INFORMATION.  AND THE AUTOMOBILE SALESMAN IS NOT LIKELY TO VOLUNTEER
THE INFORMATION FOR HIS DESIRE IS TO SELL AUTOMOBILES NOT TO DEFEAT
SALES.  ON THE OTHER HAND, THE INTERPRETATION WHICH WE URGE WOULD GIVE
THE STATUTE REAL MEANING AND SIGNIFICANCE IN TERMS OF THIS SPECIFIC
BOOTLEG HAZARD WHICH CONCERNED THE CONGRESS ON ITS ENACTMENT.  FN1 
FURTHERMORE, THE REQUIREMENT FOR REASONABLE INVESTIGATION CANNOT
POSSIBLY PLACE SUCH A BURDEN ON FINANCE COMPANIES AS TO FORCE US TO
RESOLVE AN AMBIGUITY IN STATUTORY LANGUAGE AGAINST FORFEITURE.  IN THE
CASES BEFORE US A SINGLE QUESTION PUT THE DEALER OR THE PURCHASER MIGHT
ALONE HAVE DISCLOSED THE EXISTENCE OF A STRAW MAN.  BUT NO SUCH SIMPLE
INQUIRY WAS MADE.  AN INVESTIGATION IN EACH CASE WAS MADE TO ASCERTAIN
WHETHER THE NAMED PURCHASER HAD A REPUTATION OR RECORD FOR LIQUOR
VIOLATIONS.  BUT THE EXISTENCE OF A STRAW MAN WAS NEVER PROBED. 
CERTAINLY ON SUCH A MATTER INVESTIGATIONAL TECHNIQUES ARE NOT NOVEL,
INVOLVED OR UNIQUE.  THE RESPONSIBILITY FOR A REASONABLE INVESTIGATION
WOULD ADD BUT IMPERCEPTIBLY IF AT ALL TO THE COST OF DOING BUSINESS. 
IN THIS FIELD SUCH INVESTIGATION ENTAILS A BURDEN WHICH ANY LEGITIMATE
ENTERPRISE SHOULD BE PREPARED TO CARRY.  WE NEED NOT CONJURE UP
HYPOTHETICAL CASES OF EXTENDED INQUIRY WHICH DISCLOSED NO STRAW MAN,
FOR THEY WOULD MEET THE TEST OF REASONABLE INVESTIGATION HERE
PROPOSED. 

FOR THESE REASONS, THE JUDGMENTS SHOULD BE REVERSED. 

FN1  PRECISELY THE INVESTIGATION HERE URGED SEEMS TO HAVE BEEN
INTENDED, FOR THE REPORT OF THE SENATE COMMITTEE ON THE JUDICIARY SAID
AS RESPECTS SEC. 204(B)(3):  "THIS LAST REQUIREMENTS IS PREDICATED UPON
THE RECOGNITION OF THE 'BOOTLEG HAZARD' AS AN ELEMENT TO BE CONSIDERED
IN INVESTIGATING A PERSON AS A CREDIT RISK.  AS A MATTER OF SOUND
BUSINESS PRACTICE, AUTOMOBILE DEALERS, FINANCE COMPANIES, AND
PROSPECTIVE LIENHOLDERS ON AUTOMOBILES EXAMINE RECORDS, AND MAKE
INQUIRY OF REFERENCES AND CREDIT RATING AGENCIES AS TO THE OWNER'S OR
PROSPECTIVE PURCHASER'S REPUTATION FOR PAYING HIS DEBTS AND HIS ABILITY
TO DO SO.  THIS SUBSECTION MERELY REQUIRES THAT IN THE MAKING OF SUCH
INQUIRY, THE 'BOOTLEG HAZARD' ALSO BE EXAMINED AS ONE ASPECT OF THE
CREDIT RISK."  SEN. REP. NO. 1330, 74TH CONG., 1ST SESS., P. 6.  TO
INVESTIGATE THE "BOOTLEG HAZARD" AS "ONE ASPECT OF THE CREDIT RISK"
WHEN INQUIRY IS MADE OF THE "PROSPECTIVE PURCHASER'S REPUTATION FOR
PAYING HIS DEBTS" SEEMS CLEARLY TO ENTAIL INQUIRY AS TO WHETHER OR NOT
THE PROSPECTIVE PURCHASER IS A STRAW MAN FOR A BOOTLEGGER. 
..END :














ELECTRICAL CORP. V. THOMAS CO., 307 U.S. 241 


NO. 582.  ARGUED APRIL 19, 1939.  - DECIDED MAY 22, 1939.  - 100 F.2D
403, REVERSED. 


A DEFENDANT IN A PATENT SUIT IS ENTITLED TO APPEAL FROM SO MUCH OF A
DECREE ADJUDGING HIM NOT GUILTY OF INFRINGEMENT AS PURPORTS TO ADJUDGE
THE PATENT VALID.  P. 242. 

ELECTRICAL FITTINGS CORP. ET AL. V. THOMAS & BETTS CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 306 U.S. 624, TO REVIEW THE DISMISSAL OF AN APPEAL FROM A
DECREE OF THE DISTRICT COURT, 23 F.SUPP.  920, IN A SUIT FOR ALLEGED
PATENT INFRINGEMENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS WAS A SUIT IN EQUITY BY THE RESPONDENTS FOR ALLEGED INFRINGEMENT
OF A PATENT.  THE DISTRICT COURT HELD CLAIM I VALID BUT NOT INFRINGED
AND CLAIM 2 INVALID.  FN1  INSTEAD OF DISMISSING THE BILL WITHOUT MORE,
IT ENTERED A DECREE ADJUDGING CLAIM 1 VALID BUT DISMISSING THE BILL FOR
FAILURE TO PROVE INFRINGEMENT. 

THE RESPONDENTS DID NOT APPEAL, BUT FILED IN THE PATENT OFFICE A
DISCLAIMER OF CLAIM 2.  THE PETITIONERS APPEALED TO THE CIRCUIT COURT
OF APPEALS FROM SO MUCH OF THE DECREE AS ADJUDICATED CLAIM 1 VALID. 
THE APPEAL WAS DISMISSED ON THE GROUND THAT THE PETITIONERS HAD BEEN
AWARDED ALL THE RELIEF TO WHICH THEY WERE ENTITLED, THE LITIGATION
HAVING FINALLY TERMINATED IN THEIR FAVOR.  FN2  THE COURT WAS OF
OPINION THAT THE DECREE WOULD NOT BIND THE PETITIONERS IN SUBSEQUENT
SUITS ON THE ISSUE OF THE VALIDITY OF CLAIM 1. 

WE GRANTED CERTIORARI BECAUSE OF AN ALLEGED CONFLICT OF DECISION. 
FN3  A PARTY MAY NOT APPEAL FROM A JUDGMENT OR DECREE IN HIS FAVOR, FOR
THE PURPOSE OF OBTAINING A REVIEW OF FINDINGS HE DEEMS ERRONEOUS WHICH
ARE NOT NECESSARY TO SUPPORT THE DECREE.  FN4  BUT HERE THE DECREE
ITSELF PURPORTS TO ADJUDGE THE VALIDITY OF CLAIM 1, AND THOUGH THE
ADJUDICATION WAS IMMATERIAL TO THE DISPOSITION OF THE CAUSE, IT STANDS
AS AN ADJUDICATION OF ONE OF THE ISSUES LITIGATED.  WE THINK THE
PETITIONERS WERE ENTITLED TO HAVE THIS PORTION OF THE DECREE
ELIMINATED, AND THAT THE CIRCUIT COURT OF APPEALS HAD JURISDICTION,
FN5  AS WE HAVE HELD THIS COURT HAS,  FN6  TO ENTERTAIN THE APPEAL, NOT
FOR THE PURPOSE OF PASSING ON THE MERITS, BUT TO DIRECT THE REFORMATION
OF THE DECREE. 

THE JUDGMENT IS REVERSED, AND THE CAUSE IS REMANDED TO THE CIRCUIT
COURT OF APPEALS WITH INSTRUCTIONS TO ENTERTAIN THE APPEAL AND DIRECT
THE DISTRICT COURT TO REFORM ITS DECREE IN ACCORDANCE WITH THE VIEWS
HEREIN EXPRESSED.  REVERSED. 

FN1  23 F.SUPP.  920. 

FN2  100 F.2D 403. 

FN3  SEE OLIVER-SHERWOOD CO. V. PATTERSON-BALLAGH CORP., 95 F.2D 70,
71. 

FN4  LINDHEIMER V. ILLINOIS BELL TEL. CO., 292 U.S. 151, 176. 

FN5  SEE 28 U.S.C. SEC. 225. 

FN6  GULLY V. INTERSTATE NATURAL GAS CO., 292 U.S. 16; OKLAHOMA GAS &
ELECTRIC CO. V. OKLAHOMA PACKING CO., 292 U.S. 386; WILLIAM JAMESON &
CO. V. MORGENTHAU, ANTE, P. 171. 
..END :







MAYTAG CO. V. HURLEY CO., 307 U.S. 243 


NO. 76.  ARGUED APRIL 19, 20, 1939.  - DECIDED MAY 22, 1939.  - 96 F.2D
87, AFFIRMED.  - 100 F.2D 218, REVERSED. 


UNREASONABLE NEGLECT AND DELAY OF A PATENTEE IN SUING UPON OR
DISCLAIMING A CLAIM NOT DEFINITELY DISTINGUISHABLE FROM ANOTHER
ADJUDGED INVALID FOR ANTICIPATION AND DISCLAIMED, AVOIDS THE ENTIRE
PATENT.  R.S. SECS. 4917 AND 4922.  P. 245. 

SNYDER PATENT NO. 1,866,779, ISSUED TO MAYTAG COMPANY, ASSIGNEE,
EMBRACING CLAIMS FOR A WASHING MACHINE AND A METHOD OF WASHING FABRICS,
HELD INVALIDATED. 

MAYTAG COMPANY V. HURLEY MACHINE CO. ET AL.* 

*TOGETHER WITH NO. 77, MAYTAG CO. V. EASY WASHING MACHINE CO., ALSO
ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT; AND NO. 661, GENERAL ELECTRIC SUPPLY CORP. V. MAYTAG CO., ON
WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 306 U.S. 666, TO REVIEW DECREES IN THE SECOND CIRCUIT
DENYING RELIEF IN TWO INFRINGEMENT SUITS UPON THE GROUND THAT THE
CLAIMS SUED UPON HAD BEEN ANTICIPATED; AND (306 U.S. 626) TO REVIEW A
DECREE IN THE EIGHTH CIRCUIT UPHOLDING THE SAME CLAIMS AS VALID.  THE
CLAIMS SUED UPON WERE THREE OF THIRTY-SIX APPARATUS CLAIMS, FOR A
WASHING MACHINE, EMBRACED IN THE PATENT.  THE SAME PATENT INCLUDED ALSO
THREE CLAIMS FOR A METHOD OF WASHING FABRICS, TWO OF WHICH HAD BEEN
DISCLAIMED; THE THIRD FURNISHED THE BASIS FOR THE PRESENT DECISION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE ARE PATENT INFRINGEMENT SUITS IN WHICH CERTIORARI WAS GRANTED
BECAUSE OF A CONFLICT OF DECISION.  FN1  APPARATUS CLAIMS 23, 26, AND
29 OF THE SNYDER PATENT, NO. 1,866,779, WHICH ARE HERE INVOLVED, HAVE
BEEN HELD INVALID IN THE SECOND CIRCUIT BY REASON OF ANTICIPATION; AND
HAVE BEEN ADJUDGED VALID IN THE EIGHTH CIRCUIT.  WE NEED NOT RESOLVE
THE CONFLICT, SINCE WE ARE OF OPINION THE PATENT IS VOID FOR FAILURE TO
DISCLAIM CLAIM 39. 

THE PATENT, ISSUED JULY 12, 1932, TO THE MAYTAG COMPANY AS ASSIGNEE,
CONTAINS THIRTY-NINE CLAIMS, THIRTY-SIX OF WHICH ARE FOR A WASHING
MACHINE AND THREE (NOS. 1, 38 AND 39) FOR A METHOD OF WASHING FABRICS. 
IN 1935 THE COMPANY OBTAINED A DECREE IN A SUIT AGAINST THE BROOKLYN
EDISON COMPANY FOR INFRINGEMENT OF APPARATUS CLAIMS 23 AND 26 AND
METHOD CLAIM 38.  FN2 THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT REVERSED AS TO ALL THREE CLAIMS, HOLDING THEY DID NOT DISCLOSE
NOVELTY.  FN3  THIS COURT REFUSED CERTIORARI AND THE COMPANY PROMPTLY
DISCLAIMED TWO OF THE METHOD CLAIMS, 1 AND 38, BUT DID NOT DISCLAIM
39.  IN THE INSTANT CASES INFRINGEMENT OF APPARATUS CLAIMS 23, 26, AND
29, IS CHARGED, BUT CLAIM 39 IS NOT IN SUIT, NOR HAS IT BEEN MADE THE
BASIS OF ANY OTHER SUIT. 

THERE HAS BEEN UNREASONABLE NEGLECT OR DELAY IN ENTERING A DISCLAIMER
OF CLAIM 39 WITHIN THE MEANING OF R.S. 4917, AND R.S. 4922,  FN4
UNLESS THAT CLAIM IS "DEFINITELY DISTINGUISHABLE FROM THE PARTS CLAIMED
WITHOUT RIGHT,"  - THAT IS, THE DISCLAIMED METHOD CLAIMS 1 AND 38. 
THIS MUST BE SO, FOR THE COMPANY, BY DISCLAIMING THOSE CLAIMS, HAS
CONFESSED THAT THE PATENTEE THEREIN CLAIMED "MORE THAN THAT OF WHICH HE
WAS THE ORIGINAL OR FIRST INVENTOR OR DISCOVERER" AND THAT THE COMPANY,
AS ASSIGNEE OF THE PATENT, THEREFORE, "DID NOT CHOOSE TO CLAIM OR TO
HOLD" THE METHOD THEREIN DISCLOSED "BY VIRTUE OF THE PATENT OR
ASSIGNMENT." 

THUS THE COMPANY ELECTED THE COURSE IT WOULD PURSUE WITH KNOWLEDGE OF
THE OPTIONS OPEN TO IT. CLAIM 38, WHICH HAD BEEN ADJUDGED INVALID, NEED
NOT HAVE BEEN DISCLAIMED, BUT, ALONE OR WITH OTHER CLAIMS, MIGHT HAVE
BEEN MADE THE BASIS OF ANOTHER SUIT AGAINST A DIFFERENT PARTY,  - THE
PETITIONER IN NO. 661, FOR EXAMPLE.  FN5  IF THE CLAIMS WERE HELD
INVALID IN SUCH LATER SUIT THE COURT MIGHT FIND THE PATENT WHOLLY VOID,
FOR FAILURE SEASONABLY TO DISCLAIM.  FN6  TO AVOID THE RISK OF SUCH A
POSSIBLE OUTCOME, THE COMPANY CHOSE THE OTHER ALTERNATIVE OF
DISCLAIMING 38, AND RELYING ON OTHER CLAIMS.  FN7  IN THE BROOKLYN
EDISON CASE THE DISTRICT COURT SAID CONCERNING CLAIM 1, "THE QUOTED
VERBIAGE IS DIFFERENT FROM THAT OF CLAIM 38, BUT THE SAME METHOD OR
PROCESS IS THOUGHT TO BE EQUALLY EMBODIED IN BOTH."  FN8  THIS
EXPRESSION PRESUMABLY CAUSED THE COMPANY ALSO TO DISCLAIM CLAIM 1 AS
NOT "DEFINITELY DISTINGUISHABLE" FROM CLAIM 38. 

IF CLAIM 39 DESCRIBES THE SAME METHOD AS CLAIM 38, IT FOLLOWS THAT
FAILURE EITHER TO SUE ON 39 OR TO DISCLAIM IT ALONG WITH 38 INVALIDATES
THE PATENT. 

THE TWO ARE COPIED IN THE MARGIN.  FN9  WE THINK THEY DESCRIBE BUT A
SINGLE METHOD.  THE COMPANY INSISTS THAT THE CRUCIAL DIFFERENCE LIES IN
THE FACT THAT IN 38 THE MOVING FLUID IN THE TUB IS SAID SUBSTANTIALLY
TO SUSPEND THE FABRICS, WHEREAS IN 39 THE SAME AGENCY IS SAID TO CAUSE
THE FABRICS TO BE FREELY MOVED ABOUT.  BUT THE DIFFERENCE IN VERBIAGE
DESCRIBES NO DIFFERENCE IN OPERATION OR RESULT.  WE CONCLUDE THAT, WHEN
READ IN THEIR ENTIRETY, THEY DESCRIBE THE SAME METHOD. 

THE DECREES IN NOS. 76 AND 77 ARE AFFIRMED; THAT IN NO. 661 IS
REVERSED.  NOS. 76 AND 77, AFFIRMED.  NO. 661, REVERSED. 

FN1  MAYTAG CO. V. BROOKLYN EDISON CO., 86 F.2D 625; MAYTAG CO. V.
EASY WASHING MACH. CORP., 96 F.2D 87; GENERAL ELECTRIC SUPPLY CORP. V.
MAYTAG CO., 100 F.2D 218. 

FN2  11 F.SUPP.  743. 

FN3  MAYTAG CO. V. BROOKLYN EDISON CO., SUPRA. 

FN4  35 U.S.C. SECS. 65 AND 71. 

FN5  TRIPLETT V. LOWELL, 297 U.S. 638, 642. 

FN6  IBID.  645. 

FN7  COMPARE ENSTEN V. SIMON, ASCHER & CO., 282 U.S. 445. 

FN8  11 F.SUPP.  758. 

FN9  THE DIFFERENCE IN VERBIAGE RELIED ON TO DISTINGUISH THE CLAIMS
IS ITALICIZED. 

"38.  THE METHOD OF WASHING FABRICS BY FORCING CLEANSING LIQUID
THROUGH AND AROUND THEM WHILE SUBSTANTIALLY SUSPENDED BY THE ACTION OF
THE FLUID, AS DISTINGUISHED FROM PULLING FABRICS THROUGH THE FLUID
AGAINST SCRUBBING CORRUGATIONS, OR OTHERWISE SCRUBBING THEM BY
MECHANICAL MEANS, COMPRISING IMMERSING THE FABRICS IN A WASHING FLUID
IN A CONTAINER, THEN VIGOROUSLY AND RAPIDLY IMPELLING THE WASHING FLUID
IN ONE AND THEN IN AN OPPOSITE OUTWARD CIRCULATORY DIRECTION AWAY FROM
THE PLANE OF THE SOURCE OF IMPULSION AND THROUGH THE FABRICS AND
CIRCUMFERENTIALLY ALONG THE INTERIOR OF THE CONTAINER IN RAPID
SUCCESSION, AND CAUSING THESE VIOLENTLY OPPOSED CURRENTS OF FLUID TO
MEET AND FLOW INWARDLY AND TOWARD THE CENTRAL PORTION OF THE CONTAINER,
AND TOWARD THE SOURCE OF IMPULSION THEREBY SUBSTANTIALLY SUSPENDING THE
FABRICS IN THE FLUID AND CLEANSING THEM WHILE THUS SUSPENDED." 

"39.  THE METHOD OF WASHING FABRICS BY FORCING CLEANSING FLUID
THROUGH THEM WHILE SUBSTANTIALLY SUSPENDED BY THE ACTION OF THE FLUID,
AS DISTINGUISHED FROM PULLING FABRICS THROUGH THE FLUID AGAINST
SCRUBBING CORRUGATIONS, OR OTHERWISE SCRUBBING THEM BY MECHANICAL
MEANS, COMPRISING IMMERSING THE FABRICS IN A WASHING FLUID IN A
CONTAINER, THEN VIGOROUSLY AGITATING THE WASHING FLUID AND RAPIDLY
FORCING IT TOWARD THE FABRICS AND AWAY FROM THE PLANE OF THE SOURCE OF
AGITATION VERTICALLY ALONG THE INTERIOR SURFACE OF THE CONTAINER FIRST
IN ONE AND THEN IN AN OPPOSITE CIRCUMFERENTIAL DIRECTION, BACK AND
FORTH THROUGH AND AROUND THE FABRICS, AND CAUSING THE VIOLENTLY MOVING
OPPOSED CURRENTS OF LIQUID TO MEET AND FLOW INWARDLY AND VERTICALLY
TOWARD THE SOURCE OF AGITATION WHEREBY THE FABRICS ARE CAUSED TO BE
FREELY MOVED ABOUT BY THE ACTION OF THE FLUID AND CLEANSED WHILE THUS
MOVED." 
..END :















GUARANTY TRUST CO. V. HENWOOD, 307 U.S. 247 


NO. 384.  ARGUED FEBRUARY 8, 9, 1939.  - DECIDED MAY 22, 1939.  - 98
F.2D 160, 179, AFFIRMED. 


RAILROAD BONDS, SECURED BY TRUST MORTGAGE, WHICH WERE SOLD IN THIS
COUNTRY FOR DOLLARS IN 1912, WERE EXPRESSED TO BE PAYABLE HERE IN GOLD
COIN OF THE UNITED STATES EQUAL TO THE THEN STANDARD OF WEIGHT AND
FINENESS OR, AT THE OPTION OF THE HOLDER, TO BE PAYABLE IN SEVERAL
FOREIGN COUNTRIES, INCLUDING HOLLAND, IN SPECIFIED AMOUNTS OF THE
MONEYS THERE CURRENT, WHICH AMOUNTS WERE THE 1912 EXCHANGE EQUIVALENTS
OF AMERICAN DOLLAR VALUE PER BOND.  IN A BANKRUPTCY REORGANIZATION
PROCEEDING, HOLDERS OF THE BONDS ASSERTED THEIR OPTION OF PAYMENT
ABROAD IN DUTCH GUILDERS, AND ASKED THAT THEIR CLAIMS BE ALLOWED AT
THEIR GUILDER VALUE, GREATER IN DOLLARS THAN THE FACE OF THEIR BONDS. 
HELD: 

1.  IN DETERMINING THE NATURE OF THE OBLIGATION, BONDS AND MORTGAGE
MUST BE CONSTRUED TOGETHER.  P. 253. 

2.  THE BONDS AND MORTGAGE ARE DOMESTIC OBLIGATIONS, TO BE
INTERPRETED AND ENFORCED ACCORDING TO THE LAW OF THIS COUNTRY.  P.
254. 

3.  THE BONDS ARE OBLIGATIONS "PAYABLE IN MONEY OF THE UNITED
STATES," WITHIN THE MEANING OF THE JOINT RESOLUTION OF JUNE 5, 1933,
AND UNDER THAT RESOLUTION, ARE PAYABLE DOLLAR FOR DOLLAR IN PRESENT
LEGAL TENDER.  P. 256. 

THE PROMISES OF PAYMENT, WITH INTEREST, IN ALTERNATIVE CURRENCIES
WERE NOT IN BARTER FOR COMMODITIES.  INTEREST IS NOT PAID ON
COMMODITIES BUT ON MONETARY OBLIGATIONS.  THESE PROMISES ARE NOT
SEPARATE AND INDEPENDENT CONTRACTS OR OBLIGATIONS, BUT PARTS OF ONE AND
THE SAME MONETARY OBLIGATION OF THE DEBTOR.  P. 255. 

4.  THE PROPOSITION THAT THE OBLIGATION WAS NEVER PAYABLE IN UNITED
STATES MONEY BECAUSE THE OPTION TO RECEIVE PAYMENT IN DOLLARS HAD NEVER
BEEN EXERCISED, IS REJECTED.  P. 256. 

5.  THE PROPOSITION THAT THE RESOLUTION, IF CONSTRUED TO FORBID
ENFORCEMENT OF THE OPTION TO DEMAND PAYMENT IN GUILDERS, NULLIFIES
CONTRACTUAL RIGHTS IN VIOLATION OF THE FIFTH AMENDMENT, IS REJECTED. 
P. 258. 

DOMESTIC CONTRACTS BETWEEN PRIVATE PARTIES CAN NOT CREATE VESTED
RIGHTS RESTRICTING THE EXERCISE OF A POWER OF CONGRESS. 

GUARANTY TRUST CO., TRUSTEE, V. HENWOOD, TRUSTEE, ET AL.* 

*TOGETHER WITH NO. 495, CHEMICAL BANK & TRUST CO., TRUSTEE, V.
HENWOOD, TRUSTEE, ALSO ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 305 U.S. 588, 594, TO REVIEW DECREES OF THE COURT BELOW
WHICH AFFIRMED ORDERS OF THE DISTRICT COURT FIXING ALLOWANCES TO
HOLDERS OF RAILROAD BONDS IN A REORGANIZATION CASE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN THE BANKRUPTCY REORGANIZATION OF THE ST. LOUIS SOUTHWESTERN
RAILWAY COMPANY, A MISSOURI CORPORATION, PETITIONERS FILED CLAIMS FOR
BONDHOLDERS.  THEY ASSERTED A RIGHT UNDER THE BONDS TO BE PAID IN DUTCH
GUILDERS, AND ASKED THAT THEIR CLAIMS - BASED UPON GUILDER VALUE - BE
ALLOWED FOR $37,335,525.12.  THE TRUSTEE IN BANKRUPTCY CONTENDED, AND
THE COURTS BELOW HELD THAT THE JOINT RESOLUTION OF JUNE 5, 1933,  FN1
MADE THE BONDS DISCHARGEABLE BY PAYMENT OF CURRENT LEGAL TENDER UNITED
STATES MONEY,  FN2  AND PETITIONERS' CLAIMS WERE ACCORDINGLY ALLOWED
FOR $21,638,000.00, THE FACE AMOUNT OF THEIR BONDS IN DOLLARS. 

THESE BONDS, SECURED BY A TRUST MORTGAGE, WERE ISSUED AND SOLD IN THE
UNITED STATES IN 1912.  PURCHASERS PAID AND THE RAILROAD RECEIVED
UNITED STATES DOLLARS, AND UNTIL 1936 INTEREST WAS REGULARLY PAID IN
DOLLARS. 

THE ASSERTED RIGHT TO GUILDER PAYMENT RESTS UPON A PROVISION OF THE
BONDS CONCEDEDLY GRANTING HOLDERS AN OPTION TO ELECT PAYMENT IN
DOLLARS, GUILDERS, POUNDS, MARKS, OR FRANCS.  THIS MULTIPLE CURRENCY
PROVISION WAS AUTHORIZED BY THE FOLLOWING TERMS OF THE MORTGAGE
SECURING THE BONDS: 

"  ...  THE  ...  BONDS MAY BE PAYABLE, AT THE OPTION OF THE HOLDER,
BOTH AS TO PRINCIPAL AND INTEREST, AT SOME ONE OR MORE OF THE FOLLOWING
PLACES IN ADDITION TO THE CITY OF NEW YORK, AND IN THE MONEYS CURRENT
AT SUCH RESPECTIVE PLACES OF PAYMENT, AT THE FOLLOWING RATES OF
EXCHANGE OR EQUIVALENTS OF $1,000, VIZ.:  IN LONDON, ENGLAND,
$*205.15.2 STERLING, OR IN AMSTERDAM, HOLLAND, 2490 GUILDERS, OR IN
BERLIN, GERMANY, 4200 MARKS, D.R.W., OR IN PARIS, FRANCE, 5180 FRANCS;
... " 

THE BONDS THEMSELVES PROVIDE: 

"ST. LOUIS SOUTHWESTERN RAILWAY COMPANY,  ...  FOR VALUE RECEIVED,
HEREBY PROMISES TO PAY TO THE BEARER, OR, IF REGISTERED, TO THE
REGISTERED HOLDER, OF THIS BOND, ON THE FIRST DAY OF JANUARY, 1952, AT
ITS OFFICE OR AGENCY IN THE BOROUGH OF MANHATTAN, CITY AND STATE OF NEW
YORK, ONE THOUSAND DOLLARS IN GOLD COIN OF THE UNITED STATES OF
AMERICA, OF OR EQUAL TO THE STANDARD OF WEIGHT AND FINENESS AS IT
EXISTED JANUARY 1, 1912, OR IN LONDON, ENGLAND, $*205 15S 2D, OR IN
AMSTERDAM, HOLLAND, 2490 GUILDERS, OR IN BERLIN, GERMANY, MARKS 4200,
D.R.W., OR IN PARIS, FRANCE, 5180 FRANCS, AND TO PAY INTEREST THEREON,
AT THE RATE OF FIVE PER CENT. PER ANNUM, FROM THE FIRST DAY OF JANUARY,
1912, IN SAID RESPECTIVE CURRENCIES, SEMIANNUALLY  ...  " 

SINCE THE PARTIES AGREE THAT THE TERMS OF THE BONDS GRANTED HOLDERS
AN OPTION TO ELECT PAYMENT IN GUILDERS, WE MUST DETERMINE WHETHER,
DESPITE THIS OPTION, THE JOINT RESOLUTION OPERATED TO MAKE THE BONDS
DISCHARGEABLE IN CURRENT UNITED STATES LEGAL TENDER - A DOLLAR OF LEGAL
TENDER TO BE REPAID FOR EVERY DOLLAR BORROWED. 

ANALYSIS OF THE TERMS OF THE RESOLUTION  FN3  DISCLOSES, FIRST, THAT
CONGRESS DECLARED CERTAIN TYPES OF CONTRACTUAL PROVISIONS AGAINST
PUBLIC POLICY IN TERMS SO BROAD AS TO INCLUDE THEN EXISTING CONTRACTS,
AS WELL AS THOSE THEREAFTER TO BE MADE.  IN ADDITION, FUTURE USE OF
SUCH PROSCRIBED PROVISIONS WAS EXPRESSLY PROHIBITED, WHETHER ACTUALLY
CONTAINED IN AN OBLIGATION PAYABLE IN MONEY OF THE UNITED STATES OR
SEPARATELY "MADE WITH RESPECT THERETO."  THIS PROSCRIPTION EMBRACED
"EVERY PROVISION" PURPORTING TO GIVE AN OBLIGEE A RIGHT TO REQUIRE
PAYMENT IN (1) GOLD; (2) A PARTICULAR KIND OF COIN OR CURRENCY OF THE
UNITED STATES; OR (3) IN AN AMOUNT OF UNITED STATES MONEY MEASURED BY
GOLD OR A PARTICULAR KIND OF UNITED STATES COIN OR CURRENCY. 

HAVING THUS UNMISTAKABLY STAMPED ILLEGALITY UPON BOTH OUTSTANDING AND
FUTURE CONTRACTUAL PROVISIONS DESIGNED TO REQUIRE PAYMENT BY DEBTORS IN
A FROZEN MONEY VALUE RATHER THAN IN A DOLLAR OF LEGAL TENDER CURRENT AT
DATE OF PAYMENT, CONGRESS - APPARENTLY TO OBVIATE ANY POSSIBLE
MISUNDERSTANDING AS TO THE BREADTH OF ITS OBJECTIVE - ADDED, WITH
STUDIED PRECISION, A CATCHALL SECOND SENTENCE SWEEPING IN "EVERY
OBLIGATION," EXISTING OR FUTURE, "PAYABLE IN MONEY OF THE UNITED
STATES," IRRESPECTIVE OF "WHETHER OR NOT ANY SUCH PROVISION IS
CONTAINED THEREIN OR MADE WITH RESPECT THERETO."  THE OBLIGATIONS HIT
AT BY CONGRESS WERE THOSE "PAYABLE IN MONEY OF THE UNITED STATES."  ALL
SUCH OBLIGATIONS WERE DECLARED DISCHARGEABLE "UPON PAYMENT, DOLLAR FOR
DOLLAR, IN ANY COIN OR CURRENCY (OF THE UNITED STATES) WHICH AT THE
TIME OF PAYMENT IS LEGAL TENDER FOR PUBLIC AND PRIVATE DEBTS."  IT
RESULTS THAT IF PETITIONERS' CLAIMS REST UPON "(OBLIGATIONS)  ...
PAYABLE IN MONEY OF THE UNITED STATES," BY THE TERMS OF THE RESOLUTION
THEY SHALL BE DISCHARGED UPON PAYMENT OF CURRENT LEGAL TENDER DOLLARS
EQUAL TO THE NUMBER OF DOLLARS PROMISED IN GOLD OR A PARTICULAR KIND OF
MONEY.  DECISION MUST THEREFORE TURN UPON THE NATURE OF THE
"(OBLIGATIONS)  ...  INCURRED" BY THE RAILROAD IN ITS BOND CONTRACTS OF
1912. 

THESE BONDS PROVIDE THAT, "FOR A DESCRIPTION OF THE PROPERTY AND
FRANCHISES MORTGAGED, THE NATURE AND EXTENT OF THE SECURITY, THE RIGHTS
OF THE HOLDERS OF SAID BONDS UNDER THE SAME AND THE TERMS AND
CONDITIONS UPON WHICH SUCH BONDS ARE ISSUED AND SECURED, REFERENCE IS
MADE TO THE  ... MORTGAGE."  IN DETERMINING THE NATURE OF THE
RAILROAD'S OBLIGATION, WE, ACCORDINGLY, LOOK BOTH TO THE MORTGAGE AND
THE BONDS. 

IT APPEARS THAT - 

THE RAILROAD EXECUTED THE MORTGAGE IN 1912 TO THE GUARANTY TRUST
COMPANY OF NEW YORK AS TRUSTEE, TO SECURE FORTY-YEAR MORTGAGE BONDS
"LIMITED TO AN AGGREGATE PRINCIPAL AMOUNT OF ONE HUNDRED MILLION
DOLLARS ($100,000,000.00) AT ANY ONE TIME OUTSTANDING  ...  TO BE
PAYABLE ON THE FIRST DAY OF JANUARY, 1952, WITH INTEREST AT THE RATE OF
FIVE PER CENT PER ANNUM PAYABLE SEMIANNUALLY  ... "; THE BONDS ARE
PAYABLE OPTIONALLY IN FOREIGN CURRENCIES AS INDICATED ABOVE;
REGISTRATION IN NEW YORK IS REQUIRED OF BONDS SUBJECTED TO
REGISTRATION; TO BE VALID ALL BONDS MUST BE AUTHENTICATED BY THE
GUARANTY TRUST COMPANY IN NEW YORK; NON-COUPON BONDS AND COUPON BONDS
ARE INTERCHANGEABLE UPON REQUEST, BUT NON-COUPON BONDS CONTAIN NO
OPTION FOR PAYMENT IN FOREIGN CURRENCIES; THE NEW YORK TRUSTEE IS
GRANTED BROAD SUPERVISORY POWERS (FOR THE BENEFIT OF THE BONDHOLDERS)
OVER FINANCES AND OPERATIONS OF THE RAILROAD; THE RAILROAD IS REQUIRED
TO KEEP AN OFFICE IN NEW YORK WHERE BONDS AND COUPONS CAN BE PRESENTED
FOR PAYMENT, BUT IS NOT REQUIRED TO KEEP ANY FOREIGN OFFICES; IN THE
EVENT OF DEFAULT IN PAYMENT OF BONDS OR COUPONS, THE NEW YORK TRUSTEE
IS AUTHORIZED, THROUGH ITS AGENTS OR ATTORNEYS, TO TAKE CHARGE OF THE
MORTGAGED PROPERTY, TO SELL UNDER FORECLOSURE PROCEEDINGS IN THE UNITED
STATES, AND TO PROTECT BONDHOLDERS' INTERESTS BY EMPLOYMENT OF
ATTORNEYS AND INSTITUTION OF JUDICIAL PROCEEDINGS EITHER IN LAW OR
EQUITY, "FOR THE EQUAL BENEFIT OF ALL HOLDERS OF  ...  OUTSTANDING
BONDS AND COUPONS"; SHOULD THE GUARANTY TRUST COMPANY RESIGN AS
TRUSTEE, THE BONDHOLDERS MAY DESIGNATE ANOTHER WHICH, HOWEVER, "MUST
ALWAYS BE A TRUST COMPANY HAVING AN OFFICE IN THE BOROUGH OF MANHATTAN,
IN THE CITY OF NEW YORK, N.Y." 

THE MORTGAGED PROPERTY IS LOCATED IN THE UNITED STATES; THE TRUSTEE
WAS REQUIRED TO BE A NEW YORK TRUST COMPANY; ENFORCEMENT OF THE TRUST
SECURITY, COLLECTION OF BONDS AND INTEREST, EMPLOYMENT OF ATTORNEYS,
INSTITUTION OF LEGAL PROCEEDINGS AND DISTRIBUTION OF ASSEMBLED ASSETS,
WERE ALL RESPONSIBILITIES PLACED UPON THE TRUSTEE LOCATED IN NEW YORK,
AND OBVIOUSLY CONTEMPLATED THAT ANY NECESSARY JUDICIAL PROCEEDINGS
WOULD BE HAD IN THIS COUNTRY UNDER THE GOVERNING LAW OF THE UNITED
STATES.  BOTH THE MORTGAGE AND BONDS ARE DOMESTIC OBLIGATIONS, AND THE
LAW OF THIS COUNTRY MUST DETERMINE THEIR INTERPRETATION, THEIR NATURE,
AND THE OBLIGATIONS ENFORCEABLE UNDER THEM.  FN4  THE JOINT RESOLUTION
THUS MUST GOVERN IF THE BONDS ARE, WITHIN ITS TERMS, "(OBLIGATIONS)
...  PAYABLE IN MONEY OF THE UNITED STATES." 

IN THEIR CONSTRUCTION OF THE BONDS, PETITIONERS URGE THAT EACH OF THE
ALTERNATIVE PROMISES TO PAY IN A FOREIGN CURRENCY IS A SEPARATE AND
INDEPENDENT "OBLIGATION" TO PAY.  FROM THIS, THEY ARGUE THAT THE ONLY
"OBLIGATION" FOR WHICH ENFORCEMENT IS HERE SOUGHT IS ONE "PAYABLE" IN
GUILDERS WHICH MUST BE TREATED AS THOUGH IT WERE AN ENTIRELY SEPARATE
AND INDEPENDENT PROMISE OF THE RAILROAD.  BUT THE RAILROAD UNDERTOOK
ONLY A SINGLE OBLIGATION TO REPAY THE MONEY IT BORROWED.  REPAYMENT OF
THAT MONEY MIGHT BE CALLED FOR IN ANY ONE, BUT ONLY ONE, OF THE FIVE
DIFFERENT TYPES OF MONEY.  THIS, HOWEVER, DID NOT DIVIDE THE RAILROAD'S
UNDERTAKING TO REPAY INTO FIVE SEPARATE AND INDEPENDENT OBLIGATIONS TO
REPAY THE SAME LOAN.  PAYMENT UNDER THE CONTRACT IN ANY ONE OF THE
CURRENCIES SELECTED BY THE BONDHOLDER WOULD DISCHARGE THE ENTIRE SINGLE
OBLIGATION OF THE DEBTOR.  PAYMENT IN GUILDERS, AFTER PAYMENT IN
GUILDERS WAS ELECTED, WOULD NONETHELESS DISCHARGE AN OBLIGATION WHICH
PRIOR TO SUCH ELECTION AND PAYMENT WAS AN OBLIGATION ALSO PAYABLE IN
UNITED STATES DOLLARS.  THE LANGUAGE OF THE JOINT RESOLUTION WAS
INTENDED TO REFER TO A MONETARY OBLIGATION IN ITS ENTIRETY.  THAT WHICH
THE JOINT RESOLUTION MADE DISCHARGEABLE WAS THE DEBT - THE MONETARY
OBLIGATION TO PAY.  THIS DEBTOR'S OBLIGATION WAS A MONETARY
OBLIGATION.  THE FOREIGN CURRENCIES PROMISED WERE NOT BARTERED FOR AS
COMMODITIES, BUT THEIR FUNCTION WAS THAT OF MONEY TO BE PAID IN
COUNTRIES IN WHICH THEY WERE LEGAL TENDER AND UPON THEM INTEREST WAS TO
BE PAID.  FN5 INTEREST IS NOT PAID ON COMMODITIES BUT ON MONETARY
OBLIGATIONS.  AND THESE PROMISES IN ALTERNATIVE CURRENCIES WERE NOT
SEPARATE AND INDEPENDENT CONTRACTS OR OBLIGATIONS, BUT WERE PARTS OF
ONE AND THE SAME MONETARY OBLIGATION OF THE DEBTOR. 

THE POINT IS MADE, HOWEVER, THAT THIS OBLIGATION OF THE RAILROAD WAS
NEVER PAYABLE IN UNITED STATES MONEY BECAUSE THE OPTION TO RECEIVE
PAYMENT IN DOLLARS HAS NEVER BEEN EXERCISED.  CONCEDING THAT ONE
MEANING OF "PAYABLE" IS "CAPABLE OF BEING PAID," PETITIONERS
NEVERTHELESS URGE THAT THE USE OF THIS MEANING SHOULD NOT BE ATTRIBUTED
TO CONGRESS, BUT THAT INSTEAD WE MUST NARROW AND RESTRICT "PAYABLE" TO
MEAN AN ABSOLUTE AND UNCONDITIONAL OBLIGATION.  BUT THE RAILROAD, SINCE
THE DAY ITS BONDS WERE ISSUED, WAS UNDER OBLIGATION TO HOLD ITSELF
PREPARED TO PAY UNITED STATES MONEY - OR ANY ONE OF THE OPTIONAL
CURRENCIES.  AND, ON THE DATE THE RESOLUTION WENT INTO EFFECT, NO
ELECTION HAD BEEN MADE SO THAT THE RAILROAD WAS, AT THAT TIME, STILL
UNDER OBLIGATION TO PAY DOLLARS.  IF PRIOR TO ELECTION BY THE HOLDERS
THE RAILROAD WAS UNDER NO OBLIGATION TO PAY UNITED STATES MONEY, IT WAS
LIKEWISE UNDER NO OBLIGATION TO PAY ANY MONEY, UNITED STATES OR
OTHERWISE, ALTHOUGH IT THEN HAD OUTSTANDING A $100,000,000.00 MORTGAGE
ON ALL OF ITS PROPERTIES.  NEITHER IN LOGIC NOR LAW CAN IT BE SAID THAT
THE RAILROAD'S PROMISE, SECURED BY A $100,000,000.00 MORTGAGE, TO PAY
IN ANY ONE OF FIVE CURRENCIES WAS NOT AN OBLIGATION PAYABLE IN ANY
CURRENCY UNTIL EXPRESS ELECTION OF PAYMENT IN A PARTICULAR CURRENCY WAS
MADE.  LEGAL RIGHTS AND OBLIGATIONS CAME INTO EXISTENCE WHEN THE
CONTRACTS FOR PURCHASE OF THE BONDS WERE COMPLETED.  SINCE THE WORDS
"(OBLIGATIONS) ...  PAYABLE IN MONEY OF THE UNITED STATES" ARE CLEARLY
BROAD ENOUGH TO REQUIRE INCLUSION OF THESE MULTIPLE CURRENCY
OBLIGATIONS, THERE IS NO JUSTIFICATION HERE FOR RESTRICTING THE MEANING
OF THESE WORDS OF THE RESOLUTION.  CONSIDERATION OF THE EVILS AIMED AT
LEAVES NO DOUBT BUT THAT SUCH RESTRICTION WOULD DO VIOLENCE TO THE
INTENTION OF THE CONGRESS. 

THE REPORT OF THE SENATE COMMITTEE ON THE RESOLUTION OPENS WITH WORDS
REVEALING ITS PURPOSE.  IT IS THERE STATED THAT "CERTAIN QUESTIONS OF
INTERPRETATION HAVE ARISEN WITH RESPECT TO THE LEGISLATION EMPOWERING
THE PRESIDENT TO PREVENT THE WITHDRAWAL AND HOARDING OF GOLD AND THE
PROVISION OF THE THOMAS AMENDMENT  FN6  MAKING ALL COINS AND CURRENCIES
LEGAL TENDER FOR ALL DEBTS.  ADDITIONAL AND IMMEDIATE LEGISLATION IS
NECESSARY TO REMOVE THE DISTURBING EFFECT OF THIS UNCERTAINTY AND TO
INSURE THE SUCCESS OF THE POLICY BY CLOSING POSSIBLE LEGAL LOOPHOLES
AND REMOVING INCONSISTENCIES."  FN7  THE COMPREHENSIVE LANGUAGE OF THE
RESOLUTION WAS INTENDED - AS BY ITS TERMS IT DID - TO CLOSE "LEGAL
LOOPHOLES" CONTRIBUTING TO "DISLOCATION OF THE DOMESTIC ECONOMY WHICH
WOULD BE CAUSED BY SUCH A DISPARITY OF CONDITIONS IN WHICH, IT IS
INSISTED, THOSE DEBTORS UNDER GOLD CLAUSES SHOULD BE REQUIRED TO PAY
ONE DOLLAR AND SIXTY-NINE CENTS IN CURRENCY WHILE RESPECTIVELY
RECEIVING THEIR TAXES, RATES, CHARGES AND PRICES ON THE BASIS OF ONE
DOLLAR OF THAT CURRENCY."  FN8  HERE, THE ADMITTED PURPOSE OF THE
MULTIPLE CURRENCY PROVISION SUPPLEMENTING THE GOLD CLAUSE WAS THE SAME
AS THAT OF THE GOLD CLAUSE ITSELF, THAT IS, TO AFFORD CREDITORS OF
UNITED STATES DEBTORS ON DOMESTIC MONEY OBLIGATIONS CONTRACTUAL
PROTECTION AGAINST POSSIBLE DEPRECIATION OF UNITED STATES MONEY.  IT
WAS A PLAN, WHOLLY LEGAL WHEN CONTRIVED, SPECIFICALLY DESIGNED TO
REQUIRE DEBTORS TO PAY 1912 GOLD DOLLARS OR FIXED AMOUNTS IN FOREIGN
CURRENCIES WHICH WERE THE EXACT EQUIVALENTS OF GOLD DOLLARS IN 1912. 
IN PURPOSE, PATTERN AND, AS SHOWN HERE, IN RESULT, THE MULTIPLE
CURRENCY PROVISION IS IDENTICAL WITH THE PRACTICE CONGRESS DECLARED TO
BE AGAINST PUBLIC POLICY, AND IT FURTHERS A MISCHIEF WHICH THE
RESOLUTION WAS ENACTED TO END.    THE MISCHIEF CONGRESS INTENDED TO END
WILL NOT END IF THE MULTIPLE CURRENCY PROVISION OF THESE BONDS IS HELD
TO BE UNAFFECTED BY THE RESOLUTION.  CONGRESS SOUGHT TO OUTLAW ALL
CONTRACTUAL PROVISIONS WHICH REQUIRE DEBTORS, WHO HAVE BOUND THEMSELVES
TO PAY UNITED STATES DOLLARS, TO PAY A GREATER NUMBER OF DOLLARS THAN
PROMISED.  THE RESOLUTION INTENDED THAT DEBTORS UNDER OBLIGATION TO PAY
DOLLARS SHOULD NOT HAVE THEIR DEBTS TIED TO ANY FIXED VALUE OF
PARTICULAR MONEY, BUT THAT THEIR ENTIRE OBLIGATIONS SHOULD BE MEASURED
BY AND TIED TO THE ACTUAL NUMBER OF DOLLARS PROMISED, DOLLAR FOR
DOLLAR.  A MULTIPLE CURRENCY PROVISION WAS INSERTED IN THESE BONDS IN
ORDER TO TIE THIS DEBTOR TO A FIXED VALUE OF PARTICULAR MONEY, AND,
RELYING UPON THIS PROVISION, PETITIONERS DEMAND MORE DOLLARS THAN
PROMISED IN THE BONDS.  THE PROVISION IS THUS CLEARLY AT CROSS PURPOSES
WITH THE RESOLUTION.  BY A SIMPLE MATHEMATICAL CALCULATION TRANSLATING
GUILDER VALUE INTO DOLLAR VALUE, PETITIONERS WILL, IF THE RESOLUTION IS
NOT APPLIED TO THEM, ENFORCE THE OBLIGATIONS OF THIS DEBTOR, NOT DOLLAR
FOR DOLLAR AS THE RESOLUTION PROVIDES, BUT MORE THAN A DOLLAR AND A
HALF FOR EVERY DOLLAR BORROWED, AND THE PURPOSE OF CONGRESS, THAT NO
SUCH PREMIUM NEED BE PAID, WILL BE COMPLETELY DEFEATED. 

WHEN THE JOINT RESOLUTION WAS ENACTED THE RAILROAD HAD BY ITS PROMISE
ASSUMED OBLIGATIONS TO PAY ITS BONDS IN DOLLARS; ITS OBLIGATIONS WERE
THEREFORE "PAYABLE IN MONEY OF THE UNITED STATES" AND SO FALL SQUARELY
WITHIN THE LETTER, AS WELL AS THE SPIRIT OF THE RESOLUTION MAKING
OBLIGATIONS DISCHARGEABLE BY PAYMENT OF CURRENT UNITED STATES LEGAL
TENDER MONEY. 

THERE REMAINS THE ARGUMENT OF PETITIONERS THAT THE RESOLUTION, IF
CONSTRUED TO FORBID ENFORCEMENT OF THE OPTION TO DEMAND PAYMENT IN
GUILDERS, NULLIFIES CONTRACTUAL RIGHTS IN VIOLATION OF THE FIFTH
AMENDMENT TO THE CONSTITUTION.  BUT, AS HAS ALREADY BEEN POINTED OUT,
THE CONTRACTS ON WHICH THE CLAIMS FOR GUILDERS REST ARE DOMESTIC
OBLIGATIONS, CONTROLLED BY AND TO BE INTERPRETED UNDER THE LAW OF THE
UNITED STATES.  AND CONTRACTS BETWEEN PRIVATE PARTIES CANNOT CREATE
VESTED RIGHTS WHICH SERVE TO RESTRICT AND LIMIT AN EXERCISE OF A
CONSTITUTIONAL POWER OF CONGRESS.  FN9  THESE BONDS AND THEIR SECURING
MORTGAGE WERE CREATED SUBJECT NOT ONLY TO THE EXERCISE BY CONGRESS OF
ITS CONSTITUTIONAL POWER "TO COIN MONEY, REGULATE THE VALUE THEREOF,
AND OF FOREIGN COIN," BUT ALSO TO "THE FULL AUTHORITY OF THE CONGRESS
IN RELATION TO THE CURRENCY."  THE EXTENT OF THAT AUTHORITY OF CONGRESS
HAS BEEN RECENTLY POINTED OUT:  "THE BROAD AND COMPREHENSIVE NATIONAL
AUTHORITY OVER THE SUBJECTS OF REVENUE, FINANCE AND CURRENCY IS DERIVED
FROM THE AGGREGATE OF THE POWERS GRANTED TO THE CONGRESS, EMBRACING THE
POWERS TO LAY AND COLLECT TAXES, TO BORROW MONEY, TO REGULATE COMMERCE
WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES, TO COIN MONEY,
REGULATE THE VALUE THEREOF, AND OF FOREIGN COIN, AND FIX THE STANDARDS
OF WEIGHTS AND MEASURES, AND THE ADDED EXPRESS POWER 'TO MAKE ALL LAWS
WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION' THE
OTHER ENUMERATED POWERS."  FN10 

UNDER THESE POWERS, CONGRESS WAS AUTHORIZED - AS IT DID IN THE
RESOLUTION - TO ESTABLISH, REGULATE AND CONTROL THE NATIONAL CURRENCY
AND TO MAKE THAT CURRENCY LEGAL TENDER MONEY FOR ALL PURPOSES,
INCLUDING PAYMENT OF DOMESTIC DOLLAR OBLIGATIONS WITH OPTIONS FOR
PAYMENT IN FOREIGN CURRENCIES.  WHETHER IT WAS "WISE AND EXPEDIENT" TO
DO SO WAS, UNDER THE CONSTITUTION, A DETERMINATION TO BE MADE BY THE
CONGRESS.  FN11  THE RESOLUTION THAT MADE THESE CREDITORS' BONDS
DISCHARGEABLE IN THE SAME UNITED STATES LEGAL TENDER WHICH OTHER
CREDITORS IN THIS COUNTRY MUST ACCEPT, DOES NOT CONTRAVENE THE FIFTH
AMENDMENT. 

OUR CONCLUSION THAT THE JOINT RESOLUTION MAKES PETITIONERS' CLAIMS IN
BANKRUPTCY ALLOWABLE DOLLAR FOR DOLLAR RENDERS CONSIDERATION OF
SUBSIDIARY QUESTIONS UNNECESSARY. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  48 STAT. 112, 31 U.S.C. 463. 

FN2  98 F.2D 160, 179.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT
PREVIOUSLY HELD TO THE CONTRARY, ANGLO-CONTINENTALE TREUHAND, A. G. V.
ST. LOUIS SOUTHWESTERN RY. CO., 81 F.2D 11, CERT. DEN.  298 U.S. 655,
AND THE COURT OF APPEALS OF NEW YORK DID LIKEWISE IN ZURICH GENERAL &
A.L. INS. CO. V. BETHLEHEM STEEL CO., AND ANGLO-CONTINENTALE TREUHAND
V. BETHLEHEM STEEL CO., 279 N.Y. 495, 790; 18 N.E.2D 673; 19 N.E.2D 89;
POST, P. 265.  BECAUSE OF THE DIVERGENCE OF VIEWS ON THIS IMPORTANT
QUESTION, WE GRANTED CERTIORARI, 305 U.S. 588. 

FN3                     "JOINT RESOLUTION 

"TO ASSURE UNIFORM VALUE TO THE COINS AND CURRENCIES OF THE UNITED
STATES. 

"WHEREAS THE HOLDING OF OR DEALING IN GOLD AFFECT THE PUBLIC
INTEREST, AND ARE THEREFORE SUBJECT TO PROPER REGULATION AND
RESTRICTION; AND 

"WHEREAS THE EXISTING EMERGENCY HAS DISCLOSED THAT PROVISIONS OF
OBLIGATIONS WHICH PURPORT TO GIVE THE OBLIGEE A RIGHT TO REQUIRE
PAYMENT IN GOLD OR A PARTICULAR KIND OF COIN OR CURRENCY OF THE UNITED
STATES, OR IN AN AMOUNT IN MONEY OF THE UNITED STATES MEASURED THEREBY,
OBSTRUCT THE POWER OF THE CONGRESS TO REGULATE THE VALUE OF THE MONEY
OF THE UNITED STATES, AND ARE INCONSISTENT WITH THE DECLARED POLICY OF
THE CONGRESS TO MAINTAIN AT ALL TIMES THE EQUAL POWER OF EVERY DOLLAR,
COINED OR ISSUED BY THE UNITED STATES, IN THE MARKETS AND IN THE
PAYMENT OF DEBTS.  NOW, THEREFORE, BE IT 

"RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED
STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT (A) EVERY PROVISION
CONTAINED IN OR MADE WITH RESPECT TO ANY OBLIGATION WHICH PURPORTS TO
GIVE THE OBLIGEE A RIGHT TO REQUIRE PAYMENT IN GOLD OR A PARTICULAR
KIND OF COIN OR CURRENCY, OR IN AN AMOUNT IN MONEY OF THE UNITED STATES
MEASURED THEREBY, IS DECLARED TO BE AGAINST PUBLIC POLICY; AND NO SUCH
PROVISION SHALL BE CONTAINED IN OR MADE WITH RESPECT TO ANY OBLIGATION
HEREAFTER INCURRED.  EVERY OBLIGATION, HERETOFORE OR HEREAFTER
INCURRED, WHETHER OR NOT ANY SUCH PROVISION IS CONTAINED THEREIN OR
MADE WITH RESPECT THERETO, SHALL BE DISCHARGED UPON PAYMENT, DOLLAR FOR
DOLLAR, IN ANY COIN OR CURRENCY WHICH AT THE TIME OF PAYMENT IS LEGAL
TENDER FOR PUBLIC AND PRIVATE DEBTS.  ANY SUCH PROVISION CONTAINED IN
ANY LAW AUTHORIZING OBLIGATIONS TO BE ISSUED BY OR UNDER AUTHORITY OF
THE UNITED STATES, IS HEREBY REPEALED, BUT THE REPEAL OF ANY SUCH
PROVISION SHALL NOT INVALIDATE ANY OTHER PROVISION OR AUTHORITY
CONTAINED IN SUCH LAW. 

"(B)  AS USED IN THIS RESOLUTION, THE TERM 'OBLIGATION' MEANS AN
OBLIGATION (INCLUDING EVERY OBLIGATION OF AND TO THE UNITED STATES,
EXCEPTING CURRENCY) PAYABLE IN MONEY OF THE UNITED STATES; AND THE TERM
'COIN OR CURRENCY' MEANS COIN OR CURRENCY OF THE UNITED STATES,
INCLUDING FEDERAL RESERVE NOTES AND CIRCULATING NOTES OF FEDERAL
RESERVE BANKS AND NATIONAL BANKING ASSOCIATIONS. 

"SEC. 2.  THE LAST SENTENCE OF PARAGRAPH (1) OF SUBSECTION (B) OF
ECONOMIC EMERGENCY BY INCREASING AGRICULTURAL PURCHASING POWER, TO
RAISE REVENUE FOR EXTRAORDINARY EXPENSES INCURRED BY REASON OF SUCH
EMERGENCY, TO PROVIDE EMERGENCY RELIEF WITH RESPECT TO AGRICULTURAL
INDEBTEDNESS, TO PROVIDE FOR THE ORDERLY LIQUIDATION OF JOINT-STOCK
LAND BANKS, AND FOR OTHER PURPOSES', APPROVED MAY 12, 1933, IS AMENDED
TO READ AS FOLLOWS: 

"'ALL COINS AND CURRENCIES OF THE UNITED STATES (INCLUDING FEDERAL
RESERVE NOTES AND CIRCULATING NOTES OF FEDERAL RESERVE BANKS AND
NATIONAL BANKING ASSOCIATIONS) HERETOFORE OR HEREAFTER COINED OR
ISSUED, SHALL BE LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE, PUBLIC
CHARGES, TAXES, DUTIES, AND DUES, EXCEPT THAT GOLD COINS, WHEN BELOW
THE STANDARD WEIGHT AND LIMIT OF TOLERANCE PROVIDED BY LAW FOR THE
SINGLE PIECE, SHALL BE LEGAL TENDER ONLY AT VALUATION IN PROPORTION TO
THEIR ACTUAL WEIGHT.' 

"APPROVED, JUNE 5, 1933, 4.40 P.M." 

FN4  LIVERPOOL STEAM CO. V. PHENIX INS. CO., 129 U.S. 397, 453, 459;
UNITED STATES V. NORTH CAROLINA, 136 U.S. 211, 222; R. V. INTERNATIONAL
TRUSTEE, (1937) 2 ALL E.R. 164; MOUNT ALBERT BOROUGH COUNCIL V.
AUSTRALASIAN, AUSTRALASIAN, T. & G.S. LIFE ASSURANCE SOC., (1938) A.C.
224; JUDGMENT OF THE SUPREME COURT OF SWEDEN, (JAN. 30, 1937), REPORTED
IN BULLETIN DE L'INSTITUT JURIDIQUE INTERNATIONAL, APRIL, 1937, PP.
327, 334. 

FN5  HOLYOKE POWER CO. V. PAPER CO., 300 U.S. 324, 335-336; NORMAN V.
BALTIMORE & O.R. CO., 294 U.S. 240, 302. 

FN6  48 STAT. 51, SEC. 43. 

FN7  SEN. REP. NO. 99, 73D CONG., 1ST SESS. 

FN8  NORMAN V. BALTIMORE & O.R. CO., SUPRA, 315-16. 

FN9 NORMAN V. BALTIMORE & O.R. CO., SUPRA, 306-311; CF., HOME BLDG. &
L. ASSN. V. BLAISDELL, 290 U.S. 398, 435. 

FN10  NORMAN V. BALTIMORE & O.R. CO., SUPRA, 303. 

FN11  JUILLIARD V. GREENMAN (LEGAL TENDER CASE), 110 U.S. 421, 448,
450. 

MR. JUSTICE STONE, DISSENTING. 

WITHOUT CONSIDERING THE QUESTION WHETHER THE BONDHOLDERS IN THESE
CASES HAVE PROPERLY EXERCISED THEIR OPTIONS, I CANNOT AGREE THAT THE
JOINT RESOLUTION OF CONGRESS OF JUNE 5, 1933, HAS SET AT NAUGHT THE
PROMISE OF THE BONDS TO PAY GUILDERS TO THE HOLDERS AT THEIR ELECTION. 

IN EACH CASE THE BONDS CONTAIN ALTERNATIVE AND MUTUALLY EXCLUSIVE
UNDERTAKINGS.  THE HOLDER COULD IF HE WISHED DEMAND PAYMENT IN UNITED
STATES GOLD DOLLARS OF A FIXED STANDARD OR THEIR EQUIVALENT IN UNITED
STATES CURRENCY.  THE ALTERNATIVE PROMISE IS FOR PAYMENT ABROAD OF
SPECIFIED AMOUNTS OF ANY ONE OF SEVERAL FOREIGN CURRENCIES, WITHOUT
REFERENCE TO THEIR GOLD VALUE AT THE TIME OF PAYMENT.  ITS PERFORMANCE
IS AS INDEPENDENT OF GOLD OR GOLD VALUE AS IF IT HAD CALLED FOR THE
DELIVERY OF A SPECIFIED AMOUNT OF WHEAT, SUGAR OR COFFEE, OR THE
PERFORMANCE OF SPECIFIED SERVICES. 

ANY CONSTRUCTION OF THE GOLD CLAUSE RESOLUTION WHICH WOULD IN THE
CIRCUMSTANCES OF THE PRESENT CASE PRECLUDE PAYMENT IN FOREIGN MONEY
WOULD EQUALLY FORBID PERFORMANCE OF AN ALTERNATIVE PROMISE CALLING FOR
THE DELIVERY OF A COMMODITY OR THE RENDITION OF SERVICES.  HENCE THE
DECISIVE QUESTION IS WHETHER THE RESOLUTION ADMITS OF A CONSTRUCTION
WHICH WOULD COMPEL ONE WHOSE CONTRACT STIPULATES FOR DELIVERY AT HIS
OPTION OF A CARGO OF SUGAR TO ACCEPT INSTEAD PAYMENT OF A SPECIFIED
AMOUNT IN LEGAL TENDER DOLLARS, MERELY BECAUSE BY THE TERMS OF HIS
CONTRACT HE MIGHT HAVE DEMANDED, THOUGH HE DID NOT, AN EQUAL NUMBER OF
GOLD DOLLARS. 

WHEN THE JOINT RESOLUTION WAS ADOPTED THERE WERE MANY OBLIGATIONS OF
AMERICAN CITIZENS PAYABLE ABROAD EXCLUSIVELY IN FOREIGN CURRENCY, AND
THE ATTENDANT DEVALUATION OF THE DOLLAR GREATLY INCREASED THE BURDEN OF
PERFORMANCE OF SUCH CONTRACTS THROUGH THE NECESSITY OF PURCHASING WITH
DEPRECIATED DOLLARS THE FOREIGN EXCHANGE REQUIRED FOR THEIR
FULFILLMENT.  BUT IT MUST BE CONCEDED THAT CONGRESS DID NOT UNDERTAKE
TO RELIEVE ANY AMERICAN CITIZEN OF THAT BURDEN, AND IT IS NOT CONTENDED
THAT THE JOINT RESOLUTION PROVIDED FOR THE DISCHARGE OF ANY OBLIGATIONS
PAYABLE IN FOREIGN CURRENCY, NOT MEASURED IN GOLD, EXCEPT IN THE CASE
WHERE THE PROMISE TO PAY IN FOREIGN MONEY IS AN ALTERNATIVE FOR THE
PROMISE TO PAY IN DOLLARS.  AFTER DEVALUATION OF THE DOLLAR THE BURDEN
ON AMERICAN CITIZENS OF MEETING OBLIGATIONS ABROAD BY PAYMENT IN
FOREIGN CURRENCIES MAY WELL HAVE BEEN AS GREAT WHETHER THE UNDERTAKING
WAS UNCONDITIONAL OR TO PAY UPON A CONDITION WHICH HAD HAPPENED, OR
WHETHER THE OBLIGATION WAS TO PAY IN A FOREIGN CURRENCY OR TO SUPPLY
GOODS WHICH MUST BE ACQUIRED BY THE EXPENDITURE OF DEPRECIATED
DOLLARS. 

WE CAN FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE JOINT
RESOLUTION OR ITS LANGUAGE TO SUGGEST ANY CONGRESSIONAL POLICY TO
RELIEVE FROM THE ONE FORM OF OBLIGATION MORE THAN ANOTHER, OR TO
INDICATE THAT THE RESOLUTION WAS AIMED AT ANYTHING OTHER THAN
PROVISIONS CALLING FOR PAYMENT IN GOLD VALUE OR GOLD DOLLARS OR THEIR
EQUIVALENT, WHICH CONGRESS EXPLICITLY NAMED AND DESCRIBED AS THE EVIL
TO BE REMEDIED, BOTH IN THE JOINT RESOLUTION ITSELF AND IN THE
COMMITTEE REPORTS ATTENDING ITS ADOPTION.  SEE SEN. REP. NO. 99, 73D
CONG., 1ST SESS.; H.R. REP. NO. 169, 73D CONG., 1ST SESS. 

THE JOINT RESOLUTION OF CONGRESS AND THE COMMITTEE REPORTS MAKE NO
MENTION OF OBLIGATIONS DISCHARGEABLE IN FOREIGN CURRENCIES OR BY
DELIVERY OF COMMODITIES OR PERFORMANCE OF SERVICES.  IF IT WAS THE
PURPOSE OF CONGRESS TO CONTROL SUCH OBLIGATIONS THROUGH THE EXERCISE OF
ITS POWER TO REGULATE THE VALUE OF MONEY, THAT FACT MUST BE
DISCOVERABLE FROM THE LANGUAGE OF THE RESOLUTION OR FROM SOME
UNDERLYING PUBLIC POLICY, TO WHICH ITS WORDS AND THE RECORDS OF
CONGRESS GIVE NO CLUE.  SHORTLY BEFORE THE ADOPTION OF THE RESOLUTION,
CONGRESS HAD AUTHORIZED THE PRESIDENT TO DEVALUE THE DOLLAR.  BY
APPROPRIATE LEGISLATION AND EXECUTIVE ACTION, GOLD PAYMENTS BY THE
TREASURY HAD BEEN SUSPENDED, THE HOARDING OF GOLD AND ITS EXPORTATION
HAD BEEN PROHIBITED, AND ALL PERSONS HAD BEEN REQUIRED TO DELIVER GOLD
OWNED BY THEM TO THE TREASURY.  SEE NORMAN V. BALTIMORE & OHIO R. CO.,
294 U.S. 240, 295 ET SEQ. IT WAS OBVIOUS THAT THESE MEASURES, AIMED AT
THE SUPPRESSION OF THE USE OF GOLD AS A STANDARD OF CURRENCY VALUE,
WOULD FAIL OF THEIR PURPOSE UNLESS ALL PAYMENTS IN GOLD OF THE
ESTABLISHED STANDARD OR ITS EQUIVALENT WERE OUTLAWED.  THE REPORTS OF
THE CONGRESSIONAL COMMITTEES RECOMMENDING THE ADOPTION OF THE
RESOLUTION INDICATE CLEARLY ENOUGH THAT SUCH WAS ITS PURPOSE.  THEY
GIVE NO HINT THAT MORE WAS INTENDED.  SEE SEN. REP. NO. 99, 73D CONG.,
1ST SESS.; H.R. REP. NO. 169, 73D CONG., 1ST SESS.    THE RECITALS OF
THE JOINT RESOLUTION DECLARE THAT IT IS AIMED AT "THE HOLDING OF OR
DEALING IN GOLD" AND THE "PROVISIONS OF OBLIGATIONS WHICH PURPORT TO
GIVE THE OBLIGEE A RIGHT TO REQUIRE PAYMENT IN GOLD OR A PARTICULAR
KIND OF COIN OR CURRENCY OF THE UNITED STATES, OR IN AN AMOUNT IN MONEY
OF THE UNITED STATES MEASURED THEREBY."  NO OTHER PURPOSE IS
SUGGESTED.  THE ENACTING PART OF THE RESOLUTION PROSCRIBES "EVERY
PROVISION  ...  WHICH PURPORTS TO GIVE THE OBLIGEE A RIGHT TO REQUIRE
PAYMENT IN GOLD OR A PARTICULAR KIND OF COIN OR CURRENCY, OR IN AN
AMOUNT IN MONEY OF THE UNITED STATES MEASURED THEREBY," AND DECLARES
"EVERY OBLIGATION, HERETOFORE OR HEREAFTER INCURRED, WHETHER OR NOT ANY
SUCH PROVISION IS CONTAINED THEREIN OR MADE WITH RESPECT THERETO, SHALL
BE DISCHARGED UPON PAYMENT, DOLLAR FOR DOLLAR, IN ANY COIN OR CURRENCY
WHICH AT THE TIME OF PAYMENT IS LEGAL TENDER  ...  "  "OBLIGATION," IT
STATES, "MEANS AN OBLIGATION  ...  PAYABLE IN MONEY OF THE UNITED
STATES."  THUS THE RESOLUTION PROCLAIMS THAT IT IS AIMED AT GOLD
CLAUSES AND DECLARES, IF LANGUAGE IS TO BE TAKEN IN ITS PLAIN AND MOST
OBVIOUS SENSE, THAT PROVISIONS REQUIRING PAYMENT IN GOLD DOLLARS OR
MEASURED BY GOLD ARE ILLEGAL AND THAT EVERY PROMISE OR OBLIGATION
"PAYABLE IN MONEY OF THE UNITED STATES" (NOT IN GUILDERS) SHALL BE
DISCHARGED "DOLLAR FOR DOLLAR" IN LEGAL TENDER CURRENCY. 

TO ARRIVE AT THE CONCLUSION THAT THE RESOLUTION COMPELS THE PRESENT
BONDHOLDERS TO ACCEPT DOLLARS INSTEAD OF THE GUILDERS FOR WHICH THEY
HAVE CONTRACTED, IT IS NECESSARY TO SAY THAT "OBLIGATION," WHICH THE
JOINT RESOLUTION DEFINES AS OBLIGATION "PAYABLE IN MONEY OF THE UNITED
STATES" AND REQUIRES TO BE DISCHARGED "DOLLAR FOR DOLLAR" IN LEGAL
TENDER, INCLUDES THE OBLIGATION PAYABLE IN GUILDERS.  THIS DIFFICULTY
IS BRIDGED BY RECOURSE TO A MAJOR OPERATION OF STATUTORY
RECONSTRUCTION.  IT IS SAID THAT "OBLIGATION" MEANS, NOT THE OBLIGATION
OR PROMISE WHICH IS DEFINED BY THE RESOLUTION AS THAT "PAYABLE IN MONEY
OF THE UNITED STATES" AND IN WHICH THE GOLD CLAUSE PROVISION IS
"CONTAINED" AND "WITH RESPECT" TO WHICH THE PROVISION IS "MADE," BUT
INCLUDES ALL OBLIGATIONS, ALTHOUGH NOT DISCHARGEABLE IN MONEY OF THE
UNITED STATES OR IN GOLD, WHICH MAY BE WRITTEN INTO THE INSTRUMENT OR
DOCUMENT CONTAINING ALTERNATIVE PROMISES, ONE OF WHICH IS TO PAY IN
DOLLARS.  THE "OBLIGATION" OF THE RESOLUTION "WITH RESPECT" TO WHICH
THE GOLD CLAUSE IS "MADE" IS THUS TREATED AS SYNONYMOUS WITH THE
INSTRUMENT CONTAINING THE MULTIPLE OBLIGATIONS, AND ALL THE PROVISIONS
IN IT (NOT ALONE THE PROMISE TO PAY DOLLARS) ARE NOW HELD TO BE
DISCHARGEABLE IN DOLLARS MERELY BECAUSE ONE OF THE ALTERNATIVE PROMISES
"CONTAINED" A PROVISION PAYABLE IN "MONEY OF THE UNITED STATES,"
ALTHOUGH THE BONDHOLDER IS ENTITLED BY HIS CONTRACT TO DEMAND
PERFORMANCE OF A PROMISE TO PAY GUILDERS NOT MEASURED BY GOLD.  THUS,
STARTING WITH A RESOLUTION AVOWEDLY DIRECTED AT GOLD CLAUSES, WE ARE
BROUGHT TO THE EXTRAORDINARY CONCLUSION THAT A PROMISE TO PAY FOREIGN
CURRENCY IS VOID IF EXPRESSED IN AN INSTRUMENT CONTAINING AN
ALTERNATIVE PROMISE TO PAY IN MONEY OF THE UNITED STATES WHETHER OF
GOLD STANDARD OR NOT. 

THE ARGUMENT IS NOT PERSUASIVE, BECAUSE IT RESTS BOTH UPON A STRAINED
AND UNNATURAL CONSTRUCTION OF THE RESOLUTION AND UPON AN ASSUMPTION
THAT THERE WAS A CONGRESSIONAL POLICY TO STRIKE DOWN PROVISIONS FOR THE
ALTERNATIVE DISCHARGE OF DOLLAR OBLIGATIONS BY PAYMENT IN FOREIGN
CURRENCY NOT TIED TO GOLD, WHICH FINDS NO SUPPORT IN THE LANGUAGE OF
THE JOINT RESOLUTION OR ITS LEGISLATIVE HISTORY.  IT SEEMS FAIR TO
SUPPOSE THAT IF CONGRESS PROPOSED TO END ALL POSSIBILITY OF CREATING AN
INTERNATIONAL MARKET FOR BONDS PAYABLE IN DOLLARS OR ALTERNATIVELY
ABROAD IN FOREIGN CURRENCIES, BOTH WITHOUT GOLD VALUE, IT WOULD HAVE
GIVEN SOME MORE EXPLICIT INDICATION OF THAT PURPOSE THAN IS EXHIBITED
BY THE JOINT RESOLUTION.  EVEN IF WE ASSUME THAT CONGRESS WOULD HAVE
STRUCK DOWN SUCH ALTERNATIVE CURRENCY CLAUSES HAD IT CONSIDERED THE
MATTER, WE ARE NOT FREE TO DO WHAT CONGRESS MIGHT HAVE DONE BUT DID
NOT, OR WHAT WE MAY THINK IT OUGHT TO HAVE DONE TO LESSEN THE RIGORS OF
OUR OWN CURRENCY DEVALUATION FOR THOSE WHO HAD MADE CONTRACTS FOR
PAYMENT ABROAD IN FOREIGN CURRENCY WITHOUT GOLD VALUE. 

IN ANY CASE IT SEEMS PLAIN THAT IF CONGRESS HAD MADE THE ATTEMPT IT
WOULD NOT HAVE CHOSEN TO DO SO IN TERMS WHICH, IF THE COURT'S
CONSTRUCTION OF THE JOINT RESOLUTION BE ACCEPTED, ARE BROAD ENOUGH TO
STRIKE DOWN EVERY CONCEIVABLE PROVISION FOR PAYMENT IN FOREIGN
CURRENCY, DELIVERY OF COMMODITIES, OR PERFORMANCE OF SERVICES AS AN
ALTERNATIVE FOR A PROMISE TO PAY DOLLARS, WHETHER OF GOLD STANDARD OR
NOT. 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER
CONCUR IN THIS OPINION. 
..END :







BETHLEHEM CO. V. ZURICH INS. CO., 307 U.S. 265 


NO. 590.  ARGUED FEBRUARY 9, 10, 1939.  REARGUED APRIL 27, 1939.  -
DECIDED MAY 22, 1939.  - 279 N.Y. 495, 790 - 18 N.E.2D 673 - 19 N.E.2D
89, REVERSED. 


BONDS OF AMERICAN CORPORATIONS, PAYABLE IN MONEY OF THE UNITED STATES
OR IN FIXED AMOUNTS OF FOREIGN CURRENCIES, WHICH ORIGINALLY WERE SOLD
IN THIS COUNTRY TO BANKERS, BUT ARE NOW HELD BY FOREIGN CORPORATIONS
WHICH PURCHASED THEM ABROAD AFTER THE EFFECTIVE DATE OF THE JOINT
RESOLUTION OF JUNE 5, 1933, AND ELECTED TO DEMAND PAYMENT IN FOREIGN
CURRENCIES,  - HELD SUBJECT TO THE JOINT RESOLUTION AND PAYABLE DOLLAR
FOR DOLLAR IN UNITED STATES LEGAL TENDER.  SO DECIDED UPON THE
AUTHORITY OF THE CASE LAST PRECEDING. 

BETHLEHEM STEEL CO. V. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO.* 

*TOGETHER WITH NO. 591, BETHLEHEM STEEL CO. V. ANGLO-CONTINENTALE
TREUHAND, A.G., ET AL., ALSO ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF NEW YORK. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 305 U.S. 594, TO REVIEW JUDGMENTS, ENTERED ON REMITTITUR
FROM THE COURT OF APPEALS OF THE STATE OF NEW YORK, REVERSING JUDGMENTS
OF THE SUPREME COURT, APPELLATE DIVISION.  BOTH SUITS WERE BROUGHT TO
COLLECT INTEREST COUPONS FROM BONDS OF AN AMERICAN CORPORATION PAYABLE
ALTERNATIVELY IN DOLLARS OR IN FIXED AMOUNTS OF CERTAIN FOREIGN
CURRENCIES.  IN THE FIRST CASE, JUDGMENT WAS RENDERED BY THE NEW YORK
SUPREME COURT, SPECIAL TERM, FOR THE EXCHANGE VALUE OF SWISS FRANCS,
AND WAS REVERSED BY THE APPELLATE DIVISION.  IN THE SECOND CASE,
JUDGMENT AT SPECIAL TERM HELD AGAINST THE RIGHT TO RECOVER EXCHANGE
VALUE OF DUTCH GUILDERS, AND WAS AFFIRMED BY THE APPELLATE DIVISION. 
FOR OPINION AT SPECIAL TERM IN THE FIRST CASE, SEE 254 APP. DIV. 839;
164 MISC. 498; 299 N.Y.S. 862. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

AS DID NOS. 384 AND 495, THIS DAY DECIDED, ANTE, P. 247, THESE CASES
INVOLVE EFFORTS TO ENFORCE FOREIGN CURRENCY PROVISIONS OF BOND
OBLIGATIONS PAYABLE IN MONEY OF THE UNITED STATES AND OPTIONAL FIXED
AMOUNTS OF FOREIGN CURRENCIES.  THE OBLIGATIONS ARE ESSENTIALLY SIMILAR
TO THOSE IN NOS. 384 AND 495, BUT DIFFER IN TWO RESPECTS:  (1) THE
BONDS, ORIGINALLY SOLD IN THIS COUNTRY TO A GROUP OF BANKERS,  FN1
WERE OFFERED BY THAT GROUP NOT ONLY IN THIS COUNTRY, BUT ALSO ABROAD,
AND (2) THE PRESENT HOLDERS ARE FOREIGN CORPORATIONS, SOME OF WHOSE
BONDS WERE BOUGHT IN FOREIGN COUNTRIES.  THESE DISTINCTIONS DO NOT
REMOVE FOREIGN HOLDERS FROM THE OPERATION OF THE JOINT RESOLUTION OF
JUNE 5, 1933. 

RESPONDENTS DID NOT PURCHASE THEIR BONDS OR ELECT TO DEMAND PAYMENT
IN FOREIGN CURRENCY UNTIL AFTER THE EFFECTIVE DATE OF THE RESOLUTION. 
THE COURT BELOW HELD THE RESOLUTION WAS NOT APPLICABLE.  FN2 

IT IS RESPONDENTS' CONTENTION THAT THEIR BONDS REPRESENT A FORM OF
PRIVATE INTERNATIONAL OBLIGATION, IN NO WISE SUBJECT TO THE LAWS OF THE
UNITED STATES.  HOWEVER, THEY SEEK TO ENFORCE THAT OBLIGATION IN THIS
COUNTRY AND CONGRESS HAS, AS IT CONSTITUTIONALLY MAY, PROVIDED THAT
MULTIPLE CURRENCY PROVISIONS OF DOLLAR OBLIGATIONS ARE AGAINST PUBLIC
POLICY HERE AND, THUS, UNENFORCEABLE.  THE CONSTITUTION PROVIDES "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."  COURTS IN THIS COUNTRY, STATE AND FEDERAL, CAN NO
LONGER ENFORCE THE CONTRACTUAL PROVISIONS WHICH RESPONDENTS HAVE
PROCEEDED ON, IRRESPECTIVE OF THEIR PLACE OF MAKING. 

IN THE ABSENCE OF ANY CLAIM OF INTERNATIONAL RIGHTS BASED UPON THE
TREATY PROVISION OF THE CONSTITUTION, IT IS ENOUGH THAT RESPONDENTS'
BONDS ARE "OBLIGATIONS PAYABLE IN THE MONEY OF THE UNITED STATES," AS
WE HAVE THIS DAY HELD. 

UNDER THE GOVERNING PRINCIPLES ANNOUNCED IN NOS. 384 AND 495, THE
MULTIPLE CURRENCY PROVISIONS OF RESPONDENTS' BONDS ARE WITHIN THE
OPERATION OF THE RESOLUTION, AND THEIR COUPONS ARE DISCHARGEABLE DOLLAR
FOR DOLLAR IN CURRENT LEGAL TENDER MONEY OF THE UNITED STATES. 
REVERSED. 

FN1  SOME BONDS WERE ORIGINALLY ISSUED TO STOCKHOLDERS IN NO. 590. 

FN2  279 N.Y. 495, 790; 18 N.E.2D 673; 19 N.E.2D 89. 

THE CHIEF JUSTICE, MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER AND MR.
JUSTICE STONE THINK THE JUDGMENTS IN THESE CASES SHOULD BE AFFIRMED,
FOR REASONS STATED IN THE OPINION OF MR. JUSTICE STONE IN NO. 384,
GUARANTY TRUST CO. V. HENWOOD, AND NO. 495, CHEMICAL BANK & TRUST CO.
V. HENWOOD, ANTE, P. 247. 
..END :






LANE V. WILSON, 307 U.S. 268 


NO. 460.  ARGUED MARCH 3, 1939.  - DECIDED MAY 22, 1939.  - 98 F.2D 980,
REVERSED. 


1.  A NEGRO WHO IS DENIED BY STATE REGISTRATION OFFICIALS THE RIGHT OF
REGISTRATION, PREREQUISITE TO THE RIGHT TO VOTE, UNDER COLOR OF A STATE
REGISTRATION STATUTE WHICH, IN VIOLATION OF THE FIFTEENTH AMENDMENT,
WORKS DISCRIMINATION AGAINST THE COLORED RACE, HAS A RIGHT OF ACTION IN
THE FEDERAL COURT FOR DAMAGES AGAINST SUCH OFFICIALS UNDER R.S. 1979; 8
U.S.C. SEC. 43.  GILES V. HARRIS, 189 U.S. 475, DISTINGUISHED.  P.
274. 

2.  THIS RESORT TO THE FEDERAL COURT MAY BE HAD WITHOUT FIRST
EXHAUSTING THE JUDICIAL (DISTINGUISHED FROM ADMINISTRATIVE) REMEDIES OF
THE STATE COURTS.  P. 274. 

3.  OKLAHOMA STATUTES MADE REGISTRATION PREREQUISITE TO VOTING, AND
PROVIDED GENERALLY THAT ALL CITIZENS QUALIFIED TO VOTE IN 1916 WHO
FAILED TO REGISTER BETWEEN APRIL 30 AND MAY 11, 1916, SHOULD BE
PERPETUALLY DISFRANCHISED, EXCEPTING THOSE WHO VOTED IN 1914.  THE
EFFECT WAS THAT WHITE PEOPLE WHO WERE ON THE LISTS IN 1914 IN VIRTUE OF
THE PROVISION OF THE OKLAHOMA CONSTITUTION CALLED THE "GRANDFATHER
CLAUSE" WHICH THIS COURT IN 1915 ADJUDGED UNCONSTITUTIONAL, GUINN V.
UNITED STATES, 238 U.S. 347, WERE ENTITLED TO VOTE; WHEREAS COLORED
PEOPLE KEPT FROM REGISTERING AND VOTING BY THAT CLAUSE WOULD REMAIN
FOREVER DISFRANCHISED UNLESS THEY APPLIED FOR REGISTRATION DURING THE
LIMITED PERIOD OF NOT MORE THAN 12 DAYS.  HELD REPUGNANT TO THE
FIFTEENTH AMENDMENT.  P. 275. 

LANE V. WILSON ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 305 U.S. 591, TO REVIEW THE AFFIRMANCE OF A JUDGMENT, ON
A VERDICT DIRECTED FOR DEFENDANTS IN AN ACTION FOR DAMAGES, UNDER R.S.
1979. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON CERTIORARI TO REVIEW THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS FOR THE TENTH CIRCUIT AFFIRMING THAT OF THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA, ENTERED
UPON A DIRECTED VERDICT IN FAVOR OF THE DEFENDANTS.  THE ACTION WAS ONE
FOR $5,000 DAMAGES BROUGHT UNDER SEC. 1979 OF THE REVISED STATUTES (8
U.S.C. SEC. 43), BY A COLORED CITIZEN CLAIMING DISCRIMINATORY TREATMENT
RESULTING FROM ELECTORAL LEGISLATION OF OKLAHOMA, IN VIOLATION OF THE
FIFTEENTH AMENDMENT.  CERTIORARI WAS GRANTED, 305 U.S. 591, BECAUSE OF
THE IMPORTANCE OF THE QUESTION AND AN ASSERTED CONFLICT WITH THE
DECISION IN GUINN V. UNITED STATES, 238 U.S. 347. 

THE CONSTITUTION UNDER WHICH OKLAHOMA WAS ADMITTED INTO THE UNION
REGULATED THE SUFFRAGE BY ARTICLE III, WHEREBY ITS "QUALIFIED ELECTORS"
WERE TO BE "CITIZENS OF THE STATE  ...  WHO ARE OVER THE AGE OF TWENTY
ONE YEARS" WITH DISQUALIFICATIONS IN THE CASE OF FELONS, PAUPERS AND
LUNATICS.  SOON AFTER ITS ADMISSION THE SUFFRAGE PROVISIONS OF THE
OKLAHOMA CONSTITUTION WERE RADICALLY AMENDED BY THE ADDITION OF A
LITERACY TEST FROM WHICH WHITE VOTERS WERE IN EFFECT RELIEVED THROUGH
THE OPERATION OF A "GRANDFATHER CLAUSE."  THE CLAUSE WAS STRICKEN DOWN
BY THIS COURT AS VIOLATIVE OF THE PROHIBITION AGAINST DISCRIMINATION
"ON ACCOUNT OF RACE, COLOR OR PREVIOUS CONDITION OF SERVITUDE" OF THE
FIFTEENTH AMENDMENT.  THIS OUTLAWRY OCCURRED ON JUNE 21, 1915.  IN THE
MEANTIME THE OKLAHOMA GENERAL ELECTION OF 1914 HAD BEEN BASED ON THE
OFFENDING "GRANDFATHER CLAUSE."  AFTER THE INVALIDATION OF THAT CLAUSE
A SPECIAL SESSION OF THE OKLAHOMA LEGISLATURE ENACTED A NEW SCHEME FOR
REGISTRATION AS A PREREQUISITE TO VOTING.  OKLAHOMA LAWS OF 1916, ACT
OF FEBRUARY 26, 1916, C. 24.  SECTION 4 OF THIS STATUTE (NOW SEC. 5654,
OKLAHOMA STATUTES 1931, 26 OKLA. ST. ANN. 74) FN1  WAS OBVIOUSLY
DIRECTED TOWARDS THE CONSEQUENCES OF THE DECISION IN GUINN V. UNITED
STATES, SUPRA.  THOSE WHO HAD VOTED IN THE GENERAL ELECTION OF 1914,
AUTOMATICALLY REMAINED QUALIFIED VOTERS.  THE NEW REGISTRATION
REQUIREMENTS AFFECTED ONLY OTHERS.  THESE HAD TO APPLY FOR REGISTRATION
BETWEEN APRIL 30, 1916 AND MAY 11, 1916, IF QUALIFIED AT THAT TIME,
WITH AN EXTENSION TO JUNE 30, 1916, GIVEN ONLY TO THOSE "ABSENT FROM
THE COUNTY  ...  DURING SUCH PERIOD OF TIME, OR ...  PREVENTED BY
SICKNESS OR UNAVOIDABLE MISFORTUNE FROM REGISTERING  ...  WITHIN SUCH
TIME."  THE CRUX OF THE PRESENT CONTROVERSY IS THE VALIDITY OF THIS
REGISTRATION SCHEME, WITH ITS DIVIDING LINE BETWEEN WHITE CITIZENS WHO
HAD VOTED UNDER THE "GRANDFATHER CLAUSE" IMMUNITY PRIOR TO GUINN V.
UNITED STATES, SUPRA, AND CITIZENS WHO WERE OUTSIDE IT, AND THE NOT
MORE THAN 12 DAYS AS THE NORMAL PERIOD OF REGISTRATION FOR THE
THERETOFORE PROSCRIBED CLASS. 

THE PETITIONER, A COLORED CITIZEN OF OKLAHOMA, WHO WAS THE PLAINTIFF
BELOW AND WILL HEREAFTER BE REFERRED TO AS SUCH, SUED THREE COUNTY
ELECTION OFFICIALS FOR DECLINING TO REGISTER HIM ON OCTOBER 17, 1934. 
HE WAS QUALIFIED FOR REGISTRATION IN 1916 BUT DID NOT THEN GET ON THE
REGISTRATION LIST.  THE EVIDENCE IS IN CONFLICT WHETHER HE PRESENTED
HIMSELF IN THAT YEAR FOR REGISTRATION AND, IF SO, UNDER WHAT
CIRCUMSTANCES REGISTRATION WAS DENIED HIM.  THE FACT IS THAT PLAINTIFF
DID NOT GET ON THE REGISTER IN 1916.  UNDER THE TERMS OF THE STATUTE HE
THEREBY PERMANENTLY LOST THE RIGHT TO REGISTER AND HENCE THE RIGHT TO
VOTE.  THE CENTRAL CLAIM OF PLAINTIFF IS THAT OF THE
UNCONSTITUTIONALITY OF SEC. 5654.  THE DEFENDANTS JOINED ISSUE ON THIS
CLAIM AND FURTHER INSISTED THAT IF THERE HAD BEEN ILLEGALITY IN A
DENIAL OF THE PLAINTIFF'S RIGHT TO REGISTRATION, HIS PROPER RECOURSE
WAS TO THE COURTS OF OKLAHOMA.  THE DISTRICT COURT TOOK THE CASE FROM
THE JURY AND ITS ACTION WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS. 
IT FOUND NO PROOF OF DISCRIMINATION AGAINST NEGROES IN THE
ADMINISTRATION OF SEC. 5654 AND DENIED THAT THE LEGISLATION WAS IN
CONFLICT WITH THE FIFTEENTH AMENDMENT.  98 F.2D 980. 

THE DEFENDANTS URGE TWO BARS TO THE PLAINTIFF'S RECOVERY, APART FROM
THE CONSTITUTIONAL VALIDITY OF SEC. 5654.  THEY SAY THAT ON THE
PLAINTIFF'S OWN ASSUMPTION OF ITS INVALIDITY, THERE IS NO OKLAHOMA
STATUTE UNDER WHICH HE COULD REGISTER AND THEREFORE NO RIGHT TO
REGISTRATION HAS BEEN DENIED.  SECONDLY, THEY ARGUE THAT THE STATE
PROCEDURE FOR DETERMINING CLAIMS OF DISCRIMINATION MUST BE EMPLOYED
BEFORE INVOKING THE FEDERAL JUDICIARY.  THESE CONTENTIONS WILL BE
CONSIDERED FIRST, FOR THE DISPOSITION OF A CONSTITUTIONAL QUESTION MUST
BE RESERVED TO THE LAST. 

THE FIRST OBJECTION DERIVES FROM A MISAPPLICATION OF GILES V. HARRIS,
189 U.S. 475.  IN THAT CASE A BILL IN EQUITY WAS BROUGHT BY A COLORED
MAN ON BEHALF OF HIMSELF "AND ON BEHALF OF MORE THAN FIVE THOUSAND
NEGROES, CITIZENS OF THE COUNTY OF MONTGOMERY, ALABAMA, SIMILARLY
SITUATED" WHICH IN EFFECT ASKED THE FEDERAL COURT "TO SUPERVISE THE
VOTING IN THAT STATE BY OFFICERS OF THE COURT."  WHAT THIS COURT CALLED
A "NEW AND EXTRAORDINARY SITUATION" WAS FOUND "STRIKINGLY" TO REINFORCE
"THE ARGUMENT THAT EQUITY CANNOT UNDERTAKE NOW, ANY MORE THAN IT HAS IN
THE PAST, TO ENFORCE POLITICAL RIGHTS."  SEE 189 U.S. AT 487.  FN2
APART FROM THIS TRADITIONAL RESTRICTION UPON THE EXERCISE OF EQUITABLE
JURISDICTION THERE WAS ANOTHER DIFFICULTY IN GILES V. HARRIS.  THE
PLAINTIFF THERE WAS IN EFFECT ASKING FOR SPECIFIC PERFORMANCE OF HIS
RIGHT UNDER ALABAMA ELECTORAL LEGISLATION.  THIS PRESUPPOSED THE
VALIDITY OF THE LEGISLATION UNDER WHICH HE WAS CLAIMING.  BUT THE WHOLE
THEORY OF HIS BILL WAS THE INVALIDITY OF THIS LEGISLATION.  NATURALLY
ENOUGH, THIS COURT TOOK HIS CLAIM AT ITS FACE VALUE AND FOUND NO
LEGISLATION ON THE BASIS OF WHICH SPECIFIC PERFORMANCE COULD BE
DECREED.  FN3 

THIS CASE IS VERY DIFFERENT FROM GILES V. HARRIS - THE DIFFERENCE
HAVING BEEN EXPLICITLY FORESHADOWED BY GILES V. HARRIS ITSELF.  IN THAT
CASE THIS COURT DECLARED "WE ARE NOT PREPARED TO SAY THAT AN ACTION AT
LAW COULD NOT BE MAINTAINED ON THE FACTS ALLEGED IN THE BILL."  189
U.S. AT 485.  THAT IS PRECISELY THE BASIS OF THE PRESENT ACTION,
BROUGHT UNDER THE FOLLOWING "APPROPRIATE LEGISLATION" OF CONGRESS TO
ENFORCE THE FIFTEENTH AMENDMENT: 

"EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE,  ...  OF ANY STATE OR
TERRITORY, SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE
UNITED STATES  ...  WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION
OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION
AND LAWS, SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW. 
..."  FN4  THE FIFTEENTH AMENDMENT SECURES FREEDOM FROM DISCRIMINATION
ON ACCOUNT OF RACE IN MATTERS AFFECTING THE FRANCHISE.  WHOSOEVER
"UNDER COLOR OF ANY STATUTE" SUBJECTS ANOTHER TO SUCH DISCRIMINATION
THEREBY DEPRIVES HIM OF WHAT THE FIFTEENTH AMENDMENT SECURES AND, UNDER
SEC. 1979 BECOMES "LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW." 
THE THEORY OF THE PLAINTIFF'S ACTION IS THAT THE DEFENDANTS, ACTING
UNDER COLOR OF SEC. 5654, DID DISCRIMINATE AGAINST HIM BECAUSE THAT
SUSTAINED HIS RIGHT TO SUE UNDER R.S. SEC. 1979 FOLLOWS.  THE BASIS OF
THIS ACTION IS INEQUALITY OF TREATMENT THOUGH UNDER COLOR OF LAW, NOT
DENIAL OF THE RIGHT TO VOTE.  COMPARE NIXON V. HERNDON, 273 U.S. 536. 

THE OTHER PRELIMINARY OBJECTION TO THE MAINTENANCE OF THIS ACTION IS
LIKEWISE UNTENABLE.  TO VINDICATE HIS PRESENT GRIEVANCE THE PLAINTIFF
DID NOT HAVE TO PURSUE WHATEVER REMEDY MAY HAVE BEEN OPEN TO HIM IN THE
STATE COURTS.  NORMALLY, THE STATE LEGISLATIVE PROCESS, SOMETIMES
EXERCISED THROUGH ADMINISTRATIVE POWERS CONFERRED ON STATE COURTS, MUST
BE COMPLETED BEFORE RESORT TO THE FEDERAL COURTS CAN BE HAD.  PRENTIS
V. ATLANTIC COAST LINE CO., 211 U.S. 210.  BUT THE STATE PROCEDURE OPEN
FOR ONE IN THE PLAINTIFF'S SITUATION (SEC. 5654) HAS ALL THE INDICIA OF
A CONVENTIONAL JUDICIAL PROCEEDING AND DOES NOT CONFER UPON THE
OKLAHOMA COURTS ANY OF THE DISCRETIONARY OR INITIATORY FUNCTIONS THAT
ARE CHARACTERISTIC OF ADMINISTRATIVE AGENCIES.  SEE SECTION 1 OF
ARTICLE IV OF THE OKLAHOMA CONSTITUTION; OKLAHOMA COTTON GINNERS' ASSN.
V. STATE, 174 OKLA. 243; 51 P.2D 327.  BARRING ONLY EXCEPTIONAL
CIRCUMSTANCES, SEE E.G. GILCHRIST V. INTERBOROUGH RAPID TRANSIT CO.,
279 U.S. 159, OR EXPLICIT STATUTORY REQUIREMENTS, E.G. 48 STAT. 775; 50
STAT. 738; 28 U.S.C. SEC. 41(1), RESORT TO A FEDERAL COURT MAY BE HAD
WITHOUT FIRST EXHAUSTING THE JUDICIAL REMEDIES OF STATE COURTS.  BACON
V. RUTLAND R. CO., 232 U.S. 134; PACIFIC TEL. & TEL. CO. V. KUYKENDALL,
265 U.S. 196. 

WE THEREFORE CANNOT AVOID PASSING ON THE MERITS OF PLAINTIFF'S
CONSTITUTIONAL CLAIMS.  THE REACH OF THE FIFTEENTH AMENDMENT AGAINST
CONTRIVANCES BY A STATE TO THWART EQUALITY IN THE ENJOYMENT OF THE
RIGHT TO VOTE BY CITIZENS OF THE UNITED STATES REGARDLESS OF RACE OR
COLOR, HAS BEEN AMPLY EXPOUNDED BY PRIOR DECISIONS.  GUINN V. UNITED
STATES, 238 U.S. 347; MYERS V. ANDERSON, 238 U.S. 368.  THE AMENDMENT
NULLIFIES SOPHISTICATED AS WELL AS SIMPLE-MINDED MODES OF
DISCRIMINATION.  IT HITS ONEROUS PROCEDURAL REQUIREMENTS WHICH
EFFECTIVELY HANDICAP EXERCISE OF THE FRANCHISE BY THE COLORED RACE
ALTHOUGH THE ABSTRACT RIGHT TO VOTE MAY REMAIN UNRESTRICTED AS TO
RACE.  WHEN IN GUINN V. UNITED STATES, SUPRA, THE OKLAHOMA "GRANDFATHER
CLAUSE" WAS FOUND VIOLATIVE OF THE FIFTEENTH AMENDMENT, OKLAHOMA WAS
CONFRONTED WITH THE SERIOUS TASK OF DEVISING A NEW REGISTRATION SYSTEM
CONSONANT WITH HER OWN POLITICAL IDEAS BUT ALSO CONSISTENT WITH THE
FEDERAL CONSTITUTION.  WE ARE COMPELLED TO CONCLUDE, HOWEVER
RELUCTANTLY, THAT THE LEGISLATION OF 1916 PARTAKES TOO MUCH OF THE
INFIRMITY OF THE "GRANDFATHER CLAUSE" TO BE ABLE TO SURVIVE. 

PREREQUISITE TO VOTING.  FN5  BY SECS. 5654 AND 5659  FN6  ALL CITIZENS
WHO WERE QUALIFIED TO VOTE IN 1916 BUT HAD NOT VOTED IN 1914 WERE
REQUIRED TO REGISTER, SAVE IN THE EXCEPTIONAL CIRCUMSTANCES, BETWEEN
APRIL 30 AND MAY 11, 1916, AND IN DEFAULT OF SUCH REGISTRATION WERE
PERPETUALLY DISENFRANCHISED.  EXEMPTION FROM THIS ONEROUS PROVISION WAS
ENJOYED BY ALL WHO HAD REGISTERED IN 1914.  BUT THIS REGISTRATION WAS
HELD UNDER THE STATUTE WHICH WAS CONDEMNED IN THE GUINN CASE.  UNFAIR
DISCRIMINATION WAS THUS RETAINED BY AUTOMATICALLY GRANTING VOTING
PRIVILEGES FOR LIFE TO THE WHITE CITIZENS WHOM THE CONSTITUTIONAL
"GRANDFATHER CLAUSE" HAD SHELTERED WHILE SUBJECTING COLORED CITIZENS TO
A NEW BURDEN.  THE PRACTICAL EFFECT OF THE 1916 LEGISLATION WAS TO
ACCORD TO THE MEMBERS OF THE NEGRO RACE WHO HAD BEEN DISCRIMINATED
AGAINST IN THE OUTLAWED REGISTRATION SYSTEM OF 1914, NOT MORE THAN 12
DAYS WITHIN WHICH TO REASSERT CONSTITUTIONAL RIGHTS WHICH THIS COURT
FOUND IN THE GUINN CASE TO HAVE BEEN IMPROPERLY TAKEN FROM THEM.  WE
BELIEVE THAT THE OPPORTUNITY THUS GIVEN NEGRO VOTERS TO FREE THEMSELVES
FROM THE EFFECTS OF DISCRIMINATION TO WHICH THEY SHOULD NEVER HAVE BEEN
SUBJECTED WAS TOO CABINED AND CONFINED.  THE RESTRICTIONS IMPOSED MUST
BE JUDGED WITH REFERENCE TO THOSE FOR WHOM THEY WERE DESIGNED.  IT MUST
BE REMEMBERED THAT WE ARE DEALING WITH A BODY OF CITIZENS LACKING THE
HABITS AND TRADITIONS OF POLITICAL INDEPENDENCE AND OTHERWISE LIVING IN
CIRCUMSTANCES WHICH DO NOT ENCOURAGE INITIATIVE AND ENTERPRISE.  TO BE
SURE, IN EXCEPTIONAL CASES A SUPPLEMENTAL PERIOD WAS AVAILABLE.  BUT
THE NARROW BASIS OF THE SUPPLEMENTAL REGISTRATION, THE EVERY BRIEF
NORMAL PERIOD OF RELIEF FOR THE PERSONS AND PURPOSES IN QUESTION, THE
PRACTICAL DIFFICULTIES, OF WHICH THE RECORD IN THIS CASE GIVES
GLIMPSES, INEVITABLE IN THE ADMINISTRATION OF SUCH STRICT REGISTRATION
PROVISIONS, LEAVE NO ESCAPE FROM THE CONCLUSION THAT THE MEANS CHOSEN
AS SUBSTITUTES FOR THE INVALIDATED "GRANDFATHER CLAUSE" WERE THEMSELVES
INVALID UNDER THE FIFTEENTH AMENDMENT.  THEY OPERATED UNFAIRLY AGAINST
THE VERY CLASS ON WHOSE BEHALF THE PROTECTION OF THE CONSTITUTION WAS
HERE SUCCESSFULLY INVOKED. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS MUST, THEREFORE, BE
REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. 

FN1  "IT SHALL BE THE DUTY OF THE PRECINCT REGISTRAR TO REGISTER EACH
QUALIFIED ELECTOR OF HIS ELECTION PRECINCT WHO MAKES APPLICATION
BETWEEN THE THIRTIETH DAY OF APRIL, 1916, AND THE ELEVENTH DAY OF MAY,
1916, AND SUCH PERSON APPLYING SHALL AT THE TIME HE APPLIES TO REGISTER
BE A QUALIFIED ELECTOR IN SUCH PRECINCT AND HE SHALL COMPLY WITH THE
PROVISIONS OF THIS ACT, AND IT SHALL BE THE DUTY OF EVERY QUALIFIED
ELECTOR TO REGISTER WITHIN SUCH TIME; PROVIDED, IF ANY ELECTOR SHOULD
BE ABSENT FROM THE COUNTY OF HIS RESIDENCE DURING SUCH PERIOD OF TIME,
OR IS PREVENTED BY SICKNESS OR UNAVOIDABLE MISFORTUNE FROM REGISTERING
WITH THE PRECINCT REGISTRAR WITHIN SUCH TIME, HE MAY REGISTER WITH SUCH
PRECINCT REGISTRAR AT ANY TIME AFTER THE TENTH DAY OF MAY, 1916, UP TO
AND INCLUDING THE THIRTIETH DAY OF JUNE, 1916, BUT THE PRECINCT
REGISTRAR SHALL REGISTER NO PERSON UNDER THIS PROVISION UNLESS HE BE
SATISFIED THAT SUCH PERSON WAS ABSENT FROM THE COUNTY OR WAS PREVENTED
FROM REGISTERING BY SICKNESS OR UNAVOIDABLE MISFORTUNE, AS HEREINBEFORE
PROVIDED.  AND PROVIDED THAT IT SHALL BE THE MANDATORY DUTY OF EVERY
PRECINCT REGISTRAR TO ISSUE REGISTRATION CERTIFICATES TO EVERY
QUALIFIED ELECTOR WHO VOTED AT THE GENERAL ELECTION HELD IN THIS STATE
ON THE FIRST TUESDAY AFTER THE FIRST MONDAY IN NOVEMBER, 1914, WITHOUT
THE APPLICATION OF SAID ELECTOR FOR REGISTRATION, AND, TO DELIVER SUCH
CERTIFICATE TO SUCH ELECTOR IF HE IS STILL A QUALIFIED ELECTOR IN SUCH
PRECINCT AND THE FAILURE TO SO REGISTER SUCH ELECTOR WHO VOTED IN SUCH
ELECTION HELD IN NOVEMBER, 1914, SHALL NOT PRECLUDE OR PREVENT SUCH
ELECTOR FROM VOTING IN ANY ELECTION IN THIS STATE; AND PROVIDED
FURTHER, THAT WHEREVER ANY ELECTOR IS REFUSED REGISTRATION BY ANY
REGISTRATION OFFICER SUCH ACTION MAY BE REVIEWED BY THE DISTRICT COURT
OF THE COUNTY BY THE AGGRIEVED ELECTOR BY HIS FILING WITHIN TEN DAYS A
PETITION WITH THE CLERK OF SAID COURT, WHEREUPON SUMMONS SHALL BE
ISSUED TO SAID REGISTRAR REQUIRING HIM TO ANSWER WITHIN TEN DAYS, AND
THE DISTRICT COURT SHALL BE A EXPEDITIOUS HEARING AND FROM HIS JUDGMENT
AN APPEAL WILL LIE AT THE INSTANCE OF EITHER PARTY TO THE SUPREME COURT
OF THE STATE AS IN CIVIL CASES; AND PROVIDED FURTHER, THAT THE
PROVISIONS OF THIS ACT SHALL NOT APPLY TO ANY SCHOOL DISTRICT
ELECTIONS.  PROVIDED FURTHER, THAT EACH COUNTY ELECTION BOARD IN THIS
STATE SHALL FURNISH TO EACH PRECINCT ELECTION BOARD IN THE RESPECTIVE
COUNTIES A LIST OF THE VOTERS WHO VOTED AT THE ELECTION IN NOVEMBER,
1914, AND SUCH LIST SHALL BE CONCLUSIVE EVIDENCE OF THE RIGHT OF SUCH
PERSON TO VOTE." 

FN2  SEE ALSO, IN RE SAWYER, 124 U.S. 200; WALTON V. HOUSE OF REP.,
265 U.S. 487; 4 POMEROY, EQUITY SEC. 1743 ET SEQ.; POUND, EQUITABLE
RELIEF AGAINST DEFAMATION AND INJURIES TO PERSONALITY, 29 HARV. L. REV.
640, 681. 

FN3  "IF THE SECTIONS OF THE CONSTITUTION CONCERNING REGISTRATION
WERE ILLEGAL IN THEIR INCEPTION, IT WOULD BE A NEW DOCTRINE IN
CONSTITUTIONAL LAW THAT THE ORIGINAL INVALIDITY COULD BE CURED BY AN
ADMINISTRATION WHICH DEFEATED THEIR INTENT.  WE EXPRESS NO OPINION AS
TO THE ALLEGED FACT OF THEIR UNCONSTITUTIONALITY BEYOND SAYING THAT WE
ARE NOT WILLING TO ASSUME THAT THEY ARE VALID, IN THE FACE OF THE
ALLEGATIONS AND MAIN OBJECT OF THE BILL, FOR THE PURPOSE OF GRANTING
THE RELIEF WHICH IT WAS NECESSARY TO PRAY IN ORDER THAT THAT OBJECT
SHOULD BE SECURED."  189 U.S. AT 487.  RECOGNITION OF THE DIFFERENCE
BETWEEN AN ACTION FOR DAMAGES AND THE EQUITABLE RELIEF PRAYED FOR IN
GILES V. HARRIS WAS REPEATED AT THE CLOSE OF THE OPINION.  SEE 189 U.S.
AT 488.  JUSTICES HARLAN, BREWER, AND BROWN WERE OF THE OPINION THAT IT
WAS COMPETENT FOR A FEDERAL COURT TO GRANT EVEN THE EQUITABLE RELIEF
ASKED FOR IN GILES V. HARRIS. 

FN4  THE ACT OF APRIL 20, 1871, C. 22, 17 STAT. 13, WHICH BECAME SEC.
1979 OF THE REVISED STATUTES, AND IS NOW 8 U.S.C. SEC. 43. 

FN5  "IT SHALL BE THE DUTY OF EVERY QUALIFIED ELECTOR IN THIS STATE
TO REGISTER AS AN ELECTOR UNDER THE PROVISIONS OF THIS ACT, AND NO
ELECTOR SHALL BE PERMITTED TO VOTE AT ANY ELECTION UNLESS HE SHALL
REGISTER AS HEREIN PROVIDED, AND NO ELECTOR SHALL BE PERMITTED TO VOTE
IN ANY PRIMARY ELECTION OF ANY POLITICAL PARTY EXCEPT OF THE POLITICAL
PARTY OF WHICH HIS REGISTRATION CERTIFICATE SHOWS HIM TO BE A MEMBER." 
SEC. 2, OKLAHOMA LAWS OF 1916, C. 24. 

FN6  "ANY PERSON WHO MAY BECOME A QUALIFIED ELECTOR IN ANY PRECINCT
IN THIS STATE AFTER THE TENTH DAY OF MAY, 1916, OR AFTER THE CLOSING OF
ANY OTHER REGISTRATION PERIOD, MAY REGISTER AS AN ELECTOR BY MAKING
APPLICATION TO THE REGISTRAR OF THE PRECINCT IN WHICH HE IS A QUALIFIED
VOTER, NOT MORE THAN TWENTY NOR LESS THAN TEN DAYS BEFORE THE DAY OF
HOLDING ANY ELECTION AND UPON COMPLYING WITH ALL THE TERMS AND
PROVISIONS OF THIS ACT, AND IT SHALL BE THE DUTY OF PRECINCT REGISTRARS
TO REGISTER SUCH QUALIFIED ELECTORS IN THEIR PRECINCT UNDER THE TERMS
AND PROVISIONS OF THIS ACT, BEGINNING TWENTY DAYS BEFORE THE DATE OF
HOLDING ANY ELECTION AND CONTINUING FOR A PERIOD OF TEN DAYS.  PRECINCT
REGISTRARS SHALL HAVE NO AUTHORITY TO REGISTER ELECTORS AT ANY OTHER
TIME EXCEPT AS PROVIDED IN THIS ACT AND NO REGISTRATION CERTIFICATE
ISSUED BY ANY PRECINCT REGISTRAR AT ANY OTHER TIME EXCEPT AS HEREIN
PROVIDED SHALL BE VALID."  SEC. 9, OKLAHOMA LAWS OF 1916, C. 24. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER THINK THAT THE COURT
BELOW REACHED THE RIGHT CONCLUSION AND THAT ITS JUDGMENT SHOULD BE
AFFIRMED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 
..END :














O'MALLEY V. WOODROUGH, 307 U.S. 277 


NO. 810.  ARGUED APRIL 28, 1939.  - DECIDED MAY 22, 1939.  - REVERSED. 


1.  THE PROVISION OF SEC. 22(A) OF THE REVENUE ACT OF 1936, REQUIRING
THAT THERE BE INCLUDED IN GROSS INCOME, FOR THE PURPOSE OF COMPUTING
THE FEDERAL INCOME TAX, THE COMPENSATION OF "JUDGES OF COURTS OF THE
UNITED STATES TAKING OFFICE AFTER JUNE 6, 1932" - WHICH PROVISION WAS A
REENACTMENT OF A SIMILAR PROVISION CONTAINED IN THE REVENUE ACT OF JUNE
6, 1932, AND PART OF A TAXING MEASURE OF GENERAL, NONDISCRIMINATORY
APPLICATION TO ALL EARNERS OF INCOME,  - HELD CONSTITUTIONAL AS APPLIED
TO A JUDGE WHO WAS APPOINTED TO THE CIRCUIT COURT OF APPEALS
SUBSEQUENTLY TO JUNE 6, 1932.  P. 281. 

2.  THE PROVISION IN QUESTION CAN NOT BE REGARDED AS EFFECTING A
DIMINUTION OF THE COMPENSATION OF THE JUDGE IN VIOLATION OF THE
CONSTITUTION, ART. III, SEC. 1, NOR AS AN ENCROACHMENT ON THE
INDEPENDENCE OF THE JUDICIARY.  P. 282. 

CONGRESS DID NOT EXCEED ITS CONSTITUTIONAL POWER IN PROVIDING THAT
UNITED STATES JUDGES APPOINTED AFTER THE REVENUE ACT OF 1932 SHALL NOT
ENJOY IMMUNITY FROM THE INCIDENCES OF TAXATION TO WHICH EVERYONE ELSE
WITHIN THE DEFINED CLASSES OF INCOME IS SUBJECTED. 

3.  THE FACT THAT AT THE TIME OF THE JUDGE'S APPOINTMENT TO THE
CIRCUIT COURT OF APPEALS HE HELD THE OFFICE OF FEDERAL DISTRICT JUDGE,
TO WHICH HE HAD BEEN APPOINTED PRIOR TO JUNE 6, 1932, IS IRRELEVANT TO
THE MATTER IN ISSUE.  P. 279. 

O'MALLEY, COLLECTOR OF INTERNAL REVENUE, V. WOODROUGH ET UX. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEBRASKA. 

APPEAL UNDER SEC. 2 OF THE ACT OF AUG. 24, 1937, FROM A JUDGMENT OF
THE DISTRICT COURT DENYING THE GOVERNMENT'S MOTION TO DISMISS A SUIT
FOR A REFUND OF INCOME TAXES COLLECTED UNDER AN ALLEGEDLY
UNCONSTITUTIONAL ACT. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE UNDER SEC. 2 OF THE ACT OF AUGUST 24, 1937(50 STAT.
751), AS A DIRECT APPEAL FROM A JUDGMENT OF A DISTRICT COURT WHOSE
"DECISION WAS AGAINST THE CONSTITUTIONALITY" OF AN ACT OF CONGRESS. 
THE SUIT BELOW, AN ACTION AT LAW TO RECOVER A TAX ON INCOME CLAIMED TO
HAVE BEEN ILLEGALLY EXACTED, WAS DISPOSED OF UPON THE PLEADINGS AND
TURNED ON THE SINGLE QUESTION NOW BEFORE US, TO WIT:  IS THE PROVISION
OF SEC. 22 OF THE REVENUE ACT OF 1932(47 STAT. 169, 178), RE-ENACTED BY
SEC. 22(A) OF THE REVENUE ACT OF 1936(49 STAT. 1648, 1657),
CONSTITUTIONAL INSOFAR AS IT INCLUDED IN THE "GROSS INCOME," ON THE
BASIS OF WHICH TAXES WERE TO BE PAID, THE COMPENSATION OF "JUDGES OF
COURTS OF THE UNITED STATES TAKING OFFICE AFTER JUNE 6, 1932." 

THAT THIS IS THE SOLE ISSUE WILL EMERGE FROM A SIMPLE STATEMENT OF
THE FACTS AND OF THE GOVERNING LEGISLATION.  JOSEPH W. WOODROUGH WAS
APPOINTED A UNITED STATES CIRCUIT JUDGE ON APRIL 12, 1933, AND
QUALIFIED AS SUCH ON MAY 1, 1933.  FOR THE CALENDAR YEAR OF 1936 A
JOINT INCOME TAX RETURN OF JUDGE WOODROUGH AND HIS WIFE DISCLOSED HIS
JUDICIAL SALARY OF $12,500, BUT CLAIMED IT TO BE CONSTITUTIONALLY
IMMUNE FROM TAXATION.  SINCE IT WAS NOT INCLUDED IN "GROSS INCOME" NO
TAX WAS PAYABLE.  SUBSEQUENTLY A DEFICIENCY OF $631.60 WAS ASSESSED ON
THE BASIS OF THAT ITEM, WHICH, WITH INTEREST, WAS PAID UNDER PROTEST. 
CLAIM FOR REFUND HAVING BEEN REJECTED, THE PRESENT SUIT WAS BROUGHT,
AND JUDGMENT WENT AGAINST THE COLLECTOR.  THE ASSESSMENT OF THE PRESENT
TAX WAS TECHNICALLY UNDER THE ACT OF 1936, BUT THAT ACT MERELY CARRIED
FORWARD THE PROVISIONS OF THE ACT OF 1932, FOR THE INCLUSION OF
COMPENSATION OF "JUDGES OF COURTS OF THE UNITED STATES, TAKING OFFICE
AFTER JUNE 6, 1932" WHICH HAD BEEN SIMILARLY INCORPORATED IN THE
REVENUE ACT OF 1934(48 STAT. 680, 686-687).  THEREFORE, THE POWER OF
CONGRESS TO INCLUDE JUDGE WOODROUGH'S SALARY AS A CIRCUIT JUDGE IN HIS
"GROSS INCOME" MUST BE JUDGED ON THE BASIS OF THE VALIDITY OF SEC. 22
OF THE REVENUE ACT OF 1932, AND NOT AS THOUGH THAT POWER HAD BEEN
ORIGINALLY ASSERTED BY THE REVENUE ACT OF 1936.  FOR IT WAS THE ACT OF
JUNE 6, 1932 THAT GAVE NOTICE TO ALL JUDGES THEREAFTER TO BE APPOINTED,
OF THE NEW CONGRESSIONAL POLICY TO INCLUDE THE JUDICIAL SALARIES OF
SUCH JUDGES IN THE ASSESSMENT OF INCOME TAXES.  THE FACT THAT JUDGE
WOODROUGH BEFORE HE BECAME A CIRCUIT JUDGE AND PRIOR TO JUNE 6, 1932,
HAD BEEN A DISTRICT JUDGE IS WHOLLY IRRELEVANT TO THE MATTER IN ISSUE. 
THE TWO OFFICES HAVE DIFFERENT STATUTORY ORIGINS, ARE FILLED BY
SEPARATE NOMINATIONS AND CONFIRMATIONS, AND ENJOY DIFFERENT
EMOLUMENTS.  A NEW APPOINTEE TO A CIRCUIT COURT OF APPEALS OCCUPIES A
NEW OFFICE NO LESS WHEN HE IS TAKEN FROM THE DISTRICT BENCH THAN WHEN
HE IS DRAWN FROM THE BAR. 

BY MEANS OF SEC. 22 OF THE REVENUE ACT OF 1932, CONGRESS SOUGHT TO
AVOID, AT LEAST IN PART, THE CONSEQUENCES OF EVANS V. GORE, 253 U.S.
245.  THAT CASE, DECIDED ON JUNE 1, 1920, RULED FOR THE FIRST TIME THAT
A PROVISION REQUIRING THE COMPENSATION RECEIVED BY THE JUDGES OF THE
UNITED STATES TO BE INCLUDED IN THE "GROSS INCOME" FROM WHICH THE NET
INCOME IS TO BE COMPUTED, ALTHOUGH MERELY PART OF A TAXING MEASURE OF
GENERAL, NON-DISCRIMINATORY APPLICATION TO ALL EARNERS OF INCOMES, IS
CONTRARY TO ARTICLE III, SEC. 1, OF THE CONSTITUTION WHICH PROVIDES
THAT THE "COMPENSATION" OF THE "JUDGES" "SHALL NOT BE DIMINISHED DURING
THEIR CONTINUANCE IN OFFICE."  SEE ALSO THE SEPARATE OPINION OF MR.
JUSTICE FIELD IN POLLOCK V. FARMERS' LOAN & TRUST CO., 157 U.S. 429,
586, 604 ET SEQ.  TO BE SURE, IN A LETTER TO SECRETARY CHASE, CHIEF
JUSTICE TANEY EXPRESSED SIMILAR VIEWS.  FN1  IN DOING SO, HE MERELY
GAVE HIS EXTRA-JUDICIAL OPINION, ASSERTING AT THE SAME TIME THAT THE
QUESTION COULD NOT BE ADJUDICATED.  FN2  CHIEF JUSTICE TANEY'S VIGOROUS
VIEWS WERE SHARED BY ATTORNEY GENERAL HOAR.  FN3  THEREAFTER, BOTH THE
TREASURY DEPARTMENT  FN4  AND CONGRESS  FN5 ACTED UPON THIS
CONSTRUCTION OF THE CONSTITUTION.  HOWEVER, THE MEANING WHICH EVANS V.
GORE IMPUTED TO THE HISTORY WHICH EXPLAINS ARTICLE III, SEC. 1, WAS
CONTRARY TO THE WAY IN WHICH IT WAS READ BY OTHER ENGLISH-SPEAKING
COURTS.  FN6  THE DECISION MET WIDE AND STEADILY GROWING DISFAVOR FROM
LEGAL SCHOLARSHIP AND PROFESSIONAL OPINION.  FN7  EVANS V. GORE ITSELF
WAS REJECTED BY MOST OF THE COURTS BEFORE WHOM THE MATTER CAME AFTER
THAT DECISION.  FN8 

HAVING REGARD TO THESE CIRCUMSTANCES, THE QUESTION IMMEDIATELY BEFORE
US IS WHETHER CONGRESS EXCEEDED ITS CONSTITUTIONAL POWER IN PROVIDING
THAT UNITED STATES JUDGES APPOINTED AFTER THE REVENUE ACT OF 1932 SHALL
NOT ENJOY IMMUNITY FROM THE INCIDENCES OF TAXATION TO WHICH EVERYONE
ELSE WITHIN THE DEFINED CLASSES OF INCOME IS SUBJECTED.  THEREBY, OF
COURSE, CONGRESS HAS COMMITTED ITSELF TO THE POSITION THAT A NON
DISCRIMINATORY TAX LAID GENERALLY ON NET INCOME IS NOT, WHEN APPLIED TO
THE INCOME OF A FEDERAL JUDGE, A DIMINUTION OF HIS SALARY WITHIN THE
PROHIBITION OF ARTICLE III, SEC. 1, OF THE CONSTITUTION.  TO SUGGEST
THAT IT MAKES INROADS UPON THE INDEPENDENCE OF JUDGES WHO TOOK OFFICE
AFTER CONGRESS HAD THUS CHARGED THEM WITH THE COMMON DUTIES OF
CITIZENSHIP, BY MAKING THEM BEAR THEIR ALIQUOT SHARE OF THE COST OF
MAINTAINING THE GOVERNMENT, IS TO TRIVIALIZE THE GREAT HISTORIC
EXPERIENCE ON WHICH THE FRAMERS BASED THE SAFEGUARDS OF ARTICLE III,
SEC. 1.  FN9  TO SUBJECT THEM TO A GENERAL TAX IS MERELY TO RECOGNIZE
THAT JUDGES ARE ALSO CITIZENS, AND THAT THEIR PARTICULAR FUNCTION IN
GOVERNMENT DOES NOT GENERATE AN IMMUNITY FROM SHARING WITH THEIR FELLOW
CITIZENS THE MATERIAL BURDEN OF THE GOVERNMENT WHOSE CONSTITUTION AND
LAWS THEY ARE CHARGED WITH ADMINISTERING. 

AFTER THIS CASE CAME HERE, CONGRESS, BY SEC. 3 OF THE PUBLIC SALARY
TAX ACT OF 1939, AMENDED SEC. 22(A) SO AS TO MAKE IT APPLICABLE TO
"JUDGES OF COURTS OF THE UNITED STATES WHO TOOK OFFICE ON OR BEFORE
JUNE 6, 1932."  FN10  THAT SECTION, HOWEVER, IS NOT NOW BEFORE US.  BUT
TO THE EXTENT THAT WHAT THE COURT NOW SAYS IS INCONSISTENT WITH WHAT
WAS SAID IN MILES V. GRAHAM, 268 U.S. 501, THE LATTER CANNOT SURVIVE. 
JUDGMENT REVERSED. 

FN1  THE LETTER WAS WRITTEN ON FEBRUARY 16, 1863, AND WILL BE FOUND
IN 157 U.S. 701. 

FN2  "...  I SHOULD NOT HAVE TROUBLED YOU WITH THIS LETTER, IF THERE
WAS ANY MODE BY WHICH THE QUESTION COULD BE DECIDED IN A JUDICIAL
PROCEEDING.  BUT ALL OF THE JUDGES OF THE COURTS OF THE UNITED STATES
HAVE AN INTEREST IN THE QUESTION, AND COULD NOT THEREFORE WITH
PROPRIETY UNDERTAKE TO HEAR AND DECIDE IT."  157 U.S. AT 702. 

FN3  13 OP. A.G. 161; BUT SEE THE OPINION OF ATTORNEY GENERAL PALMER,
31 OP. A.G. 475. 

FN4  SEE MR. JUSTICE FIELD, CONCURRING, IN POLLOCK V. FARMERS' LOAN &
TRUST CO., 157 U.S. 429, 588, 606-07. 

FN5  SEE WAYNE V. UNITED STATES, 26 CT. CL. 274; ACT OF JULY 28,
1892, C. 311, 27 STAT. 306. 

FN6  SEE JUDGMENTS IN COOPER V. COMMISSIONER OF INCOME TAX, 4 COMM.
L.R. 1304, CONSTRUING SEC. 17 OF THE QUEENSLAND CONSTITUTION ACT OF
1867 WHICH PROHIBITED "ANY REDUCTION OR DIMINUTION OF THE SALARY OF A
JUDGE DURING HIS TERM OF OFFICE"; ALSO, JUDGES V. ATTORNEY-GENERAL FOR
SASKATCHEWAN (1937) 2 D.L.R. 209, CONSTRUING SEC. 96 OF THE BRITISH
NORTH AMERICA ACT, 1867, THAT "THE SALARIES  ...  OF THE JUDGES  ...
SHALL BE FIXED AND PROVIDED BY THE PARLIAMENT OF CANADA" IN CONNECTION
WITH THE INCOME TAX ACT, 1932, OF SASKATCHEWAN. 

FN7  SEE CLARK, FURTHER LIMITATIONS UPON FEDERAL INCOME TAXATION, 30
YALE L.J. 75; CORWIN, CONSTITUTIONAL LAW IN 1919-1920, 15 AM. POL. 
SCI.  REV. 635, 641-644; FELLMAN, DIMINUTION OF JUDICIAL SALARIES, 24
IOWA L. REV. 89; LOWNDES, TAXING INCOME OF FEDERAL JUDICIARY, 19 VA. L.
REV. 153; POWELL, CONSTITUTIONAL LAW IN 1919-1920, 19 MICH. L. REV. 117
118; POWELL, THE SIXTEENTH AMENDMENT AND INCOME FROM STATE SECURITIES,
NATIONAL INCOME TAX MAGAZINE (JULY 1923) 5-6; 20 COL. L. REV. 794; 43
HARV. L. REV. 318; 20 ILL. L. REV. 376; 45 L.Q. REV. 291; 7 VA. L. REV.
69; 3 U. OF CHI.  L. REV. 141. 

FN8  THE CASES, PRO AND CON, ARE COLLECTED IN THE RECENT DISSENTING
OPINION BY CHIEF JUDGE BOND OF THE COURT OF APPEALS OF MARYLAND IN
GORDY V. DENNIS, 5 A.2D 69, 82.  PARTICULAR ATTENTION SHOULD BE CALLED
TO THE DECISION OF THE SUPREME COURT OF SOUTH AFRICA, KRAUSE V.
COMMISSIONER FOR INLAND REVENUE, (1929) SO. AFR.  R. (A.D.)  286,
CONSTRUING SEC. 100 OF THE SOUTH AFRICA ACT, WHICH HAD TAKEN OVER THE
IDENTICAL CLAUSE FROM ARTICLE III, SEC. 1, OF OUR CONSTITUTION. 

FN9  THE PROVISIONS REGARDING SECURITY OF SALARY HAD THEIR SOURCE IN
THE ACT OF SETTLEMENT OF 1700, 12 & 13 WILL.  III, C. 2, SEC. III, AND
THE ACT OF 1760, 1 GEO. III, C. 23.  SEE HOLDSWORTH, THE CONSTITUTIONAL
POSITION OF THE JUDGES, 48 L.Q. REV. 25; 2 HOLDSWORTH, THE HISTORY OF
ENGLISH LAW, 559-64; 6 ID. 234, 514. 

FN10  PUBLIC NO. 32, 76TH CONG., 1ST SESS., C. 59.  SECTION 209 OF
THE SAME STATUTE, HOWEVER, PROVIDES THAT "IN THE CASE OF THE JUDGES OF
THE SUPREME COURT, AND OF THE INFERIOR COURTS OF THE UNITED STATES
CREATED UNDER ARTICLE III OF THE CONSTITUTION, WHO TOOK OFFICE ON OR
BEFORE JUNE 6, 1932, THE COMPENSATION RECEIVED AS SUCH SHALL NOT BE
SUBJECT TO INCOME TAX UNDER THE REVENUE ACT OF 1938 OR ANY PRIOR
REVENUE ACT." 

MR. JUSTICE MCREYNOLDS DID NOT HEAR THE ARGUMENT IN THIS CAUSE AND
TOOK NO PART IN ITS CONSIDERATION OR DECISION. 

MR. JUSTICE BUTLER, DISSENTING. 

CONCRETELY, THE QUESTION IS WHETHER, BY EXACTING FROM UNITED STATES
CIRCUIT JUDGE JOSEPH W. WOODROUGH AND HIS WIFE $631.60 IN THE FORM OF
INCOME TAX ON HIS SALARY OF $12,500 FOR 1936, THE GOVERNMENT DIMINISHED
THE COMPENSATION FOR HIS SERVICES THERETOFORE FIXED BY CONGRESS.  THAT
ITEM EXCLUDED, THEY HAD NO TAXABLE INCOME.  THE JUDGE'S MONTHLY PAY WAS
$1041.66.  THE TAX TOOK AT THE MONTHLY RATE OF $52.63. 

THE MATERIAL DETAILS MAY BE GIVEN BRIEFLY. 

APRIL 12, 1933, JUDGE WOODROUGH WAS APPOINTED JUDGE OF THE UNITED
STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.  HE QUALIFIED
MAY 1, 1933.  CONGRESS HAD BY THE ACT OF DECEMBER 13, 1926,  FN1
ENACTED THAT "TO EACH OF THE CIRCUIT JUDGES THE SUM OF $12,500 PER
YEAR" SHALL BE PAID AS COMPENSATION.  SINCE MAY 1, 1933, APPELLEE HAS
RECEIVED THE SPECIFIED PAY.  THE REVENUE ACT OF JUNE 6, 1932,
APPLICABLE ONLY TO TAXABLE YEARS BEGINNING AFTER DECEMBER 31, 1931,
CONTAINED A PROVISION DECLARING THAT IN THE CASE OF JUDGES TAKING
OFFICE AFTER THAT DATE "THE COMPENSATION RECEIVED AS SUCH SHALL BE
INCLUDED IN GROSS INCOME; AND ALL ACTS FIXING THE COMPENSATION OF SUCH
...  JUDGES ARE HEREBY AMENDED ACCORDINGLY."  FN2  THE REVENUE ACT OF
1934,  FN3  APPLICABLE ONLY TO TAXABLE YEARS BEGINNING AFTER DECEMBER
31, 1933, AND THAT OF 1936,  FN4  APPLICABLE ONLY TO TAXABLE YEARS
BEGINNING AFTER DECEMBER 31, 1935, CONTAIN THE SAME LANGUAGE AS THAT
JUST QUOTED FROM THE ACT OF 1932. 

JUDGE WOODROUGH AND HIS WIFE MADE A JOINT INCOME TAX RETURN FOR 1936;
IT DISCLOSED HIS SALARY BUT CLAIMED IT WAS NOT SUBJECT TO THE TAX.  THE
COMMISSIONER HELD THE ITEM TAXABLE AND MADE A DEFICIENCY ASSESSMENT OF
$631.60.  PLAINTIFFS PAID UNDER PROTEST AND FILED CLAIM FOR REFUND; IT
WAS DENIED.  CLAIMING THE TAX THAT THEY WERE SO COMPELLED TO PAY
DIMINISHED THE JUDGE'S COMPENSATION AND THAT THEREFORE SEC. 22(A) OF
THE ACT OF 1936 VIOLATES SEC. 1, ART. III, OF THE CONSTITUTION,
PLAINTIFFS SUED TO RECOVER THE AMOUNT OF THE TAX.  THE COLLECTOR MOVED
TO DISMISS.  THE COURT HELD THE ACT UNCONSTITUTIONAL, OVERRULED THE
MOTION AND, DEFENDANT HAVING ELECTED NOT TO PLEAD FURTHER, GAVE
PLAINTIFFS JUDGMENT AS PRAYED.  DEFENDANT APPEALED.  FN5 

ARTICLE III, SEC. 1, DECLARES:  "THE JUDGES, BOTH OF THE SUPREME AND
INFERIOR COURTS, SHALL HOLD THEIR OFFICES DURING GOOD BEHAVIOUR, AND
SHALL, AT STATED TIMES, RECEIVE FOR THEIR SERVICES, A COMPENSATION,
WHICH SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE IN OFFICE." 

IT SAFEGUARDS THE INDEPENDENCE OF THE JUDICIARY.  THE ABUSE AGAINST
WHICH IT WAS INTENDED TO BE A BARRIER IS INCLUDED IN THE LIST OF
REASONS FOR OUR DECLARATION OF INDEPENDENCE.  "THE HISTORY OF THE
PRESENT KING OF GREAT BRITAIN IS A HISTORY OF REPEATED INJURIES AND
USURPATIONS, ALL HAVING IN DIRECT OBJECT THE ESTABLISHMENT OF AN
ABSOLUTE TYRANNY OVER THESE STATES  ...  HE HAS OBSTRUCTED THE
ADMINISTRATION OF JUSTICE, BY REFUSING HIS ASSENT TO LAWS FOR
ESTABLISHING JUDICIARY POWERS.  - HE HAS MADE JUDGES DEPENDENT ON HIS
WILL ALONE, FOR THE TENURE OF THEIR OFFICES, AND THE AMOUNT AND PAYMENT
OF THEIR SALARIES." 

ALEXANDER HAMILTON, EXPLAINING THE REASONS FOR AND THE PURPOSE OF
SEC. 1 OF ART. III, SAID: 

"THE EXECUTIVE NOT ONLY DISPENSES THE HONORS, BUT HOLDS THE SWORD OF
THE COMMUNITY.  THE LEGISLATURE NOT ONLY COMMANDS THE PURSE, BUT
PRESCRIBES THE RULES BY WHICH THE DUTIES AND RIGHTS OF EVERY CITIZEN
ARE TO BE REGULATED.  THE JUDICIARY, ON THE CONTRARY, HAS NO INFLUENCE
OVER EITHER THE SWORD OR THE PURSE; NO DIRECTION EITHER OF THE STRENGTH
OR OF THE WEALTH OF THE SOCIETY; AND CAN TAKE NO ACTIVE RESOLUTION
WHATEVER.  IT MAY TRULY BE SAID TO HAVE NEITHER FORCE NOR WILL, BUT
MERELY JUDGMENT  ...    "THIS SIMPLE VIEW OF THE MATTER  ...  PROVES
INCONTESTABLY, THAT THE JUDICIARY IS BEYOND COMPARISON THE WEAKEST OF
THE THREE DEPARTMENTS OF POWER; THAT IT CAN NEVER ATTACK WITH SUCCESS
EITHER OF THE OTHER TWO; AND THAT ALL POSSIBLE CARE IS REQUISITE TO
ENABLE IT TO DEFEND ITSELF AGAINST THEIR ATTACKS  ...    "THE COMPLETE
INDEPENDENCE OF THE COURTS OF JUSTICE IS PECULIARLY ESSENTIAL IN A
LIMITED CONSTITUTION.  BY A LIMITED CONSTITUTION, I UNDERSTAND ONE
WHICH CONTAINS CERTAIN SPECIFIED EXCEPTIONS TO THE LEGISLATIVE
AUTHORITY; SUCH, FOR INSTANCE, AS THAT IT SHALL PASS NO BILLS OF
ATTAINDER, NO EX-POST-FACTO LAWS, AND THE LIKE.  LIMITATIONS OF THIS
KIND CAN BE PRESERVED IN PRACTICE NO OTHER WAY THAN THROUGH THE MEDIUM
OF COURTS OF JUSTICE, WHOSE DUTY IT MUST BE TO DECLARE ALL ACTS
CONTRARY TO THE MANIFEST TENOR OF THE CONSTITUTION VOID.  WITHOUT THIS,
ALL THE RESERVATIONS OF PARTICULAR RIGHTS OR PRIVILEGES WOULD AMOUNT TO
NOTHING ..."  (THE FEDERALIST, NO. 78.) 

"NEXT TO PERMANENCY IN OFFICE, NOTHING CAN CONTRIBUTE MORE TO THE
INDEPENDENCE OF THE JUDGES THAN A FIXED PROVISION FOR THEIR SUPPORT
...  IN THE GENERAL COURSE OF HUMAN NATURE, A POWER OVER A MAN'S
SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL  ...  THE ENLIGHTENED
FRIENDS TO GOOD GOVERNMENT IN EVERY STATE, HAVE SEEN CAUSE TO LAMENT
THE WANT OF PRECISE AND EXPLICIT PRECAUTIONS IN THE STATE CONSTITUTIONS
ON THIS HEAD.  SOME OF THESE INDEED HAVE DECLARED THAT PERMANENT
SALARIES SHOULD BE ESTABLISHED FOR THE JUDGES, BUT THE EXPERIMENT HAS
IN SOME INSTANCES SHOWN THAT SUCH EXPRESSIONS ARE NOT SUFFICIENTLY
DEFINITE TO PRECLUDE LEGISLATIVE EVASIONS.  SOMETHING STILL MORE
POSITIVE AND UNEQUIVOCAL HAS BEEN EVINCED TO BE REQUISITE  ...  THIS
PROVISION FOR THE SUPPORT OF THE JUDGES BEARS EVERY MARK OF PRUDENCE
AND EFFICACY; AND IT MAY BE SAFELY AFFIRMED THAT, TOGETHER WITH THE
PERMANENT TENURE OF THEIR OFFICES, IT AFFORDS A BETTER PROSPECT OF
THEIR INDEPENDENCE THAN IS DISCOVERABLE IN THE CONSTITUTIONS OF ANY OF
THE STATES IN REGARD TO THEIR OWN JUDGES."  (THE FEDERALIST, NO. 79.) 

MR. JUSTICE STORY DECLARED THAT "WITHOUT THIS PROVISION, THE OTHER,
AS TO THE TENURE OF OFFICE, WOULD HAVE BEEN UTTERLY NUGATORY, AND
INDEED A MERE MOCKERY  ..."  2 STORY, SEC. 1628.  CHANCELLOR KENT SAID:
"THE PROVISION FOR THE PERMANENT SUPPORT OF THE JUDGES IS WELL
CALCULATED, IN ADDITION TO THE TENURE OF THEIR OFFICE, TO GIVE THEM THE
REQUISITE INDEPENDENCE.  IT TENDS, ALSO, TO SECURE A SUCCESSION OF
LEARNED MEN ON THE BENCH, WHO, IN CONSEQUENCE OF A CERTAIN UNDIMINISHED
SUPPORT, ARE ENABLED AND INDUCED TO QUIT THE LUCRATIVE PURSUITS OF
PRIVATE BUSINESS FOR THE DUTIES OF THAT IMPORTANT STATION.  THE
CONSTITUTION OF THE UNITED STATES, ON THIS SUBJECT, WAS AN IMPROVEMENT
UPON ALL OUR PREVIOUSLY EXISTING CONSTITUTIONS."  1 KENT COM. 294. 

THE FIRST JUDICIAL CONSTRUCTION OF THE CLAUSE WAS BY THE CIRCUIT
COURT OF THE DISTRICT OF COLUMBIA IN 1803 IN THE CASE OF UNITED STATES
V. MORE.  FN6  THE OPINION WAS WRITTEN BY JUDGE CRANCH.  THE COURT
SUSTAINED A DEMURRER TO AN INDICTMENT CHARGING THAT MORE, A JUSTICE OF
THE PEACE, UNDER COLOR OF HIS OFFICE, EXACTED AN ILLEGAL FEE, 12 CENTS,
FOR GIVING JUDGMENT UPON A WARRANT FOR A SMALL DEBT.  THE ISSUE WAS
WHETHER AN ACT OF CONGRESS ABOLISHING FEES OF JUSTICES OF THE PEACE IN
THE DISTRICT OF COLUMBIA COULD AFFECT THOSE WHO ACCEPTED THEIR
COMMISSIONS WHILE THE FEES WERE LEGALLY ANNEXED TO THE OFFICE.  THE
COURT SAID:  "THE 3D ARTICLE OF THE CONSTITUTION PROVIDES FOR THE
INDEPENDENCE OF THE JUDGES OF THE COURTS OF THE UNITED STATES, BY
CERTAIN REGULATIONS; ONE OF WHICH IS, THAT THEY SHALL RECEIVE, AT
STATED TIMES, A COMPENSATION FOR THEIR SERVICES, WHICH SHALL NOT BE
DIMINISHED DURING THEIR CONTINUANCE IN OFFICE.  THE ACT OF CONGRESS OF
27TH OF FEBRUARY, 1801, WHICH CONSTITUTES THE OFFICE OF JUSTICES OF THE
PEACE  ...  ASCERTAINS THE COMPENSATION WHICH THEY SHALL HAVE FOR THEIR
SERVICES IN HOLDING THEIR COURTS  ...  THIS COMPENSATION IS GIVEN IN
THE FORM OF FEES, PAYABLE WHEN THE SERVICES ARE RENDERED  ...  THAT HIS
(THE JUSTICE'S) COMPENSATION SHALL NOT BE DIMINISHED DURING HIS
CONTINUANCE IN OFFICE, SEEMS TO FOLLOW AS A NECESSARY CONSEQUENCE FROM
THE PROVISIONS OF THE CONSTITUTION  ...  IF HIS COMPENSATION HAS ONCE
BEEN FIXED BY LAW, A SUBSEQUENT LAW FOR DIMINISHING THAT COMPENSATION
(A FORTIORI FOR ABOLISHING IT) CANNOT AFFECT THAT JUSTICE OF THE PEACE
DURING HIS CONTINUANCE IN OFFICE; ..." 

THE FIRST ATTEMPT TO TAX COMPENSATION OF FEDERAL JUDGES WAS DURING
THE CIVIL WAR.  SECTION 86 OF THE ACT OF JULY 1, 1862,  FN7  LEVIED "ON
ALL SALARIES OF OFFICERS, OR PAYMENTS TO PERSONS IN THE ...  SERVICE OF
THE UNITED STATES  ...  WHEN EXCEEDING THE RATE OF SIX HUNDRED DOLLARS
PER ANNUM, A DUTY OF THREE PER CENTUM ON THE EXCESS ABOVE THE SAID SIX
HUNDRED DOLLARS," AND DIRECTED DISBURSING OFFICERS TO DEDUCT AND
WITHHOLD THE DUTY.  THESE GENERAL PROVISIONS WERE CONSTRUED BY THE
REVENUE OFFICERS TO COMPREHEND THE COMPENSATION OF THE PRESIDENT AND
THE JUDGES OF THE UNITED STATES.  BY LETTER OF FEBRUARY 16, 1863, MR.
CHIEF JUSTICE TANEY PROTESTED TO THE SECRETARY OF THE TREASURY.  IN THE
COURSE OF HIS LETTER,  FN8  HE SAID: 

"THE ACT IN QUESTION, AS YOU INTERPRET IT, DIMINISHES THE
COMPENSATION OF EVERY JUDGE THREE PER CENT, AND IF IT CAN BE DIMINISHED
TO THAT EXTENT BY THE NAME OF A TAX, IT MAY IN THE SAME WAY BE REDUCED
FROM TIME TO TIME AT THE PLEASURE OF THE LEGISLATURE. 

"THE JUDICIARY IS ONE OF THE THREE GREAT DEPARTMENTS OF THE
GOVERNMENT, CREATED AND ESTABLISHED BY THE CONSTITUTION.  ITS DUTIES
AND POWERS ARE SPECIFICALLY SET FORTH, AND ARE OF A CHARACTER THAT
REQUIRES IT TO BE PERFECTLY INDEPENDENT OF THE TWO OTHER DEPARTMENTS,
AND IN ORDER TO PLACE IT BEYOND THE REACH AND ABOVE EVEN THE SUSPICION
OF ANY SUCH INFLUENCE, THE POWER TO REDUCE THEIR COMPENSATION IS
EXPRESSLY WITHHELD FROM CONGRESS, AND EXCEPTED FROM THEIR POWERS OF
LEGISLATION. 

"LANGUAGE COULD NOT BE MORE PLAIN THAN THAT USED IN THE
CONSTITUTION.  IT IS MOREOVER ONE OF ITS MOST IMPORTANT AND ESSENTIAL
PROVISIONS.  FOR THE ARTICLES WHICH LIMIT THE POWERS OF THE LEGISLATIVE
AND EXECUTIVE BRANCHES OF THE GOVERNMENT, AND THOSE WHICH PROVIDE
SAFEGUARDS FOR THE PROTECTION OF THE CITIZEN IN HIS PERSON AND
PROPERTY, WOULD BE OF LITTLE VALUE WITHOUT A JUDICIARY TO UPHOLD AND
MAINTAIN THEM, WHICH WAS FREE FROM EVERY INFLUENCE, DIRECT OR INDIRECT,
THAT MIGHT BY POSSIBILITY IN TIMES OF POLITICAL EXCITEMENT WARP THEIR
JUDGMENTS.  ... 

"HAVING BEEN HONORED WITH THE HIGHEST JUDICIAL STATION UNDER THE
CONSTITUTION, I FEEL IT TO BE MORE ESPECIALLY MY DUTY TO UPHOLD AND
MAINTAIN THE CONSTITUTIONAL RIGHTS OF THAT DEPARTMENT OF THE
GOVERNMENT, AND NOT BY ANY ACT OR WORD OF MINE, LEAVE IT TO BE SUPPOSED
THAT I ACQUIESCE IN A MEASURE THAT DISPLACES IT FROM THE INDEPENDENT
POSITION ASSIGNED IT BY THE STATESMEN WHO FRAMED THE CONSTITUTION; AND
IN ORDER TO GUARD AGAINST ANY SUCH INFERENCE, I PRESENT TO YOU THIS
RESPECTFUL BUT FIRM AND DECIDED REMONSTRANCE AGAINST THE AUTHORITY YOU
HAVE EXERCISED UNDER THIS ACT OF CONGRESS, AND REQUEST YOU TO PLACE
THIS PROTEST UPON THE PUBLIC FILES OF YOUR OFFICE AS THE EVIDENCE THAT
I HAVE DONE EVERYTHING IN MY POWER TO PRESERVE AND MAINTAIN THE
JUDICIAL DEPARTMENT IN THE POSITION AND RANK IN THE GOVERNMENT WHICH
THE CONSTITUTION HAS ASSIGNED TO IT." 

THE LETTER OF THE CHIEF JUSTICE WAS NOT ANSWERED AND, AT HIS REQUEST,
THE COURT, MAY 10, 1863, ORDERED THE LETTER ENTERED ON ITS RECORDS.  IN
1869, THE SECRETARY OF THE TREASURY REQUESTED THE OPINION OF ATTORNEY
GENERAL EBENEZER ROCKWOOD HOAR AS TO THE CONSTITUTIONALITY OF THE ACT
CONSTRUED TO EXTEND TO JUDGES' SALARIES.  HE RENDERED AN OPINION IN
SUBSTANTIAL ACCORD WITH THE VIEWS EXPRESSED IN CHIEF JUSTICE TANEY'S
PROTEST.  13 OP. A.G. 161.  ACCORDINGLY, THE TAX ON THE COMPENSATION OF
THE PRESIDENT AND OF JUDGES WAS DISCONTINUED AND THE AMOUNTS
THERETOFORE COLLECTED FROM THEM WERE REFUNDED - SOME THROUGH
ADMINISTRATIVE CHANNELS; OTHERS THROUGH ACTION OF THE COURT OF CLAIMS
AND ENSUING APPROPRIATIONS BY CONGRESS.  SEE WAYNE V. UNITED STATES, 26
C. CLS. 274, 290; 27 STAT. 306. 

IN 1889, MR. JUSTICE MILLER, A MEMBER OF THE COURT SINCE 1862, SAID:
FN9 

"THE CONSTITUTION OF THE UNITED STATES HAS PLACED SEVERAL LIMITATIONS
UPON THE GENERAL POWER (OF TAXATION), AND  ...  SOME OF THEM ARE
IMPLIED.  ONE OF ITS PROVISIONS IS THAT NEITHER THE PRESIDENT OF THE
UNITED STATES (ART. II, SEC. 1, PAR 6), NOR A JUDGE OF THE SUPREME OR
INFERIOR COURTS (ART III, SEC. 1), SHALL HAVE HIS SALARY DIMINISHED
DURING THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED, OR DURING HIS
CONTINUANCE IN OFFICE.  IT IS VERY CLEAR THAT WHEN CONGRESS, DURING THE
LATE (CIVIL) WAR, LEVIED AN INCOME TAX, AND PLACED IT AS WELL UPON THE
SALARIES OF THE PRESIDENT AND THE JUDGES OF THE COURTS AS THOSE OF
OTHER PEOPLE, THAT IT WAS A DIMINUTION OF THEM TO JUST THAT EXTENT." 

ALTHOUGH THE INCOME TAX ACT OF 1894 SAID NOTHING ABOUT THE
COMPENSATION OF THE JUDGES, MR. JUSTICE FIELD CONSTRUED SEC. 33  FN10
TO TAX THAT COMPENSATION AND ASSIGNED THAT GROUND AMONG OTHERS FOR
JOINING IN THE DECISION THAT THE ACT WAS UNCONSTITUTIONAL.  POLLOCK V.
FARMERS' LOAN & TRUST CO., 157 U.S. 429, 604-606.  MR. JUSTICE FIELD,
WHO WAS CONFIRMED THE DAY THIS COURT ORDERED CHIEF JUSTICE TANEY'S
LETTER ENTERED ON ITS RECORDS, HAD TAKEN HIS PLACE UPON THIS BENCH AT
THE BEGINNING OF THE FOLLOWING TERM.  HIS OPINION RECITED THE FACTS OF
THAT INCIDENT AND QUOTED EXTENSIVELY FROM THE LETTER, WHICH WAS PRINTED
AS AN APPENDIX TO THE VOLUME OF THE REPORTS CONTAINING THE OPINIONS IN
THE POLLOCK CASE.  157 U.S. 701.  THE JUSTICE ENDED HIS DISCUSSION OF
THE MATTER BY STATING HIS BELIEF, BASED ON INFORMATION, THAT THE
OPINION OF ATTORNEY GENERAL HOAR HAD BEEN FOLLOWED EVER SINCE WITHOUT
QUESTION BY THE TREASURY.  AND, UPON REARGUMENT OF THE CAUSE, ATTORNEY
GENERAL OLNEY SAID IN HIS BRIEF:  "THERE HAS NEVER BEEN A DOUBT SINCE
THE OPINION OF ATTORNEY GENERAL HOAR THAT THE SALARIES OF THE PRESIDENT
AND JUDGES WERE EXEMPT." 

THE REVENUE ACTS OF 1913  FN11  AND 1916,  FN12  BEING THE FIRST TWO
AFTER ADOPTION OF THE SIXTEENTH AMENDMENT, EXPRESSLY EXCLUDED FROM
GROSS INCOME THE COMPENSATION OF JUDGES THEN IN OFFICE.  BUT AFTER THIS
COUNTRY ENGAGED IN THE WORLD WAR, THE REVENUE ACT OF 1918, APPROVED
FEBRUARY 24, 1919, DEFINED GROSS INCOME TO INCLUDE "IN THE CASE OF THE
PRESIDENT  ...  (AND) THE JUDGES OF THE SUPREME AND INFERIOR COURTS
...  THE COMPENSATION RECEIVED AS SUCH."  FN13  THE REPORTS OF THE
CONGRESSIONAL COMMITTEES HAVING THE MEASURE IN CHARGE INDICATE THAT THE
CONGRESS WAS IN DOUBT AS TO THE CONSTITUTIONAL VALIDITY OF THAT
PROVISION AND INTENDED TO HAVE THE QUESTION DECIDED BY THE COURTS. 
FN14  THE QUESTION WAS RAISED AND PRESENTED FOR DECISION IN EVANS V.
GORE, 253 U.S. 245.  THE COLLECTOR INCLUDED THE SALARY FOR 1918 OF
JUDGE EVANS, APPOINTED BEFORE ENACTMENT OF THE TAXING STATUTE, IN GROSS
INCOME.  HAD IT BEEN EXCLUDED, HE WOULD HAVE HAD NO TAXABLE INCOME.  HE
PAID THE TAX AND BROUGHT SUIT TO RECOVER THE AMOUNT SO EXACTED.  THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY HELD
HIM NOT ENTITLED TO RECOVER.  BUT, AFTER ARGUMENT BY EMINENT COUNSEL
INCLUDING THE SOLICITOR GENERAL, THIS COURT HELD THAT THE CLAUSE
DECLARING THAT COMPENSATION OF JUDGES "SHALL NOT BE DIMINISHED DURING
THEIR CONTINUANCE IN OFFICE" PREVENTS DIMINUTION BY TAXATION AND THAT
IT HAS BEEN SO CONSTRUED IN THE ACTUAL PRACTICE OF THE GOVERNMENT. 

FOR THE PURPOSE OF DISCLOSING THE REASONS FOR AND TRUE MEANING OF THE
CLAUSE FORBIDDING DIMINUTION OF COMPENSATION OF JUDGES, THE OPINION OF
THE COURT, WRITTEN BY MR. JUSTICE VAN DEVANTER, BROUGHT FORWARD
STATEMENTS OF ALEXANDER HAMILTON, CHIEF JUSTICE MARSHALL, JUSTICE
STORY, CHANCELLOR KENT, CHIEF JUSTICE TANEY, JUSTICE FIELD, ATTORNEYS
GENERAL HOAR AND OLNEY AND OTHERS. 

SPEAKING FOR THE COURT, HE SAID: 

"WITH WHAT PURPOSE DOES THE CONSTITUTION PROVIDE THAT THE
COMPENSATION OF THE JUDGES 'SHALL NOT BE DIMINISHED DURING THEIR
CONTINUANCE IN OFFICE'?  IS IT PRIMARILY TO BENEFIT THE JUDGES, OR
RATHER TO PROMOTE THE PUBLIC WEAL BY GIVING THEM THAT INDEPENDENCE
WHICH MAKES FOR AN IMPARTIAL AND COURAGEOUS DISCHARGE OF THE JUDICIAL
FUNCTION?  DOES THE PROVISION MERELY FORBID DIRECT DIMINUTION, SUCH AS
EXPRESSLY REDUCING THE COMPENSATION FROM A GREATER TO A LESS SUM PER
YEAR, AND THEREBY LEAVE THE WAY OPEN FOR INDIRECT, YET EFFECTIVE,
DIMINUTION, SUCH AS WITHHOLDING OR CALLING BACK A PART AS A TAX ON THE
WHOLE?  OR, DOES IT MEAN THAT THE JUDGE SHALL HAVE A SURE AND
CONTINUING RIGHT TO THE COMPENSATION, WHEREON HE CONFIDENTLY MAY RELY
FOR HIS SUPPORT DURING HIS CONTINUANCE IN OFFICE, SO THAT HE NEED HAVE
NO APPREHENSION LEST HIS SITUATION IN THIS REGARD MAY BE CHANGED TO HIS
DISADVANTAGE? 

"...  THE PRIMARY PURPOSE OF THE PROHIBITION AGAINST DIMINUTION WAS
NOT TO BENEFIT THE JUDGES, BUT, LIKE THE CLAUSE IN RESPECT OF TENURE,
TO ATTRACT GOOD AND COMPETENT MEN TO THE BENCH AND TO PROMOTE THAT
INDEPENDENCE OF ACTION AND JUDGMENT WHICH IS ESSENTIAL TO THE
MAINTENANCE OF THE GUARANTIES, LIMITATIONS AND PERVADING PRINCIPLES OF
THE CONSTITUTION AND TO THE ADMINISTRATION OF JUSTICE WITHOUT RESPECT
TO PERSONS AND WITH EQUAL CONCERN FOR THE POOR AND THE RICH.  SUCH
BEING ITS PURPOSE, IT IS TO BE CONSTRUED, NOT AS A PRIVATE GRANT, BUT
AS A LIMITATION IMPOSED IN THE PUBLIC INTEREST; IN OTHER WORDS, NOT
RESTRICTIVELY, BUT IN ACCORD WITH ITS SPIRIT AND THE PRINCIPLE ON WHICH
IT PROCEEDS.    "OBVIOUSLY, DIMINUTION MAY BE EFFECTED IN MORE WAYS
THAN ONE.  SOME MAY BE DIRECT AND OTHERS INDIRECT, OR EVEN EVASIVE AS
MR. HAMILTON SUGGESTED.  BUT ALL WHICH BY THEIR NECESSARY OPERATION AND
EFFECT WITHHOLD OR TAKE FROM THE JUDGE A PART OF THAT WHICH HAS BEEN
PROMISED BY LAW FOR HIS SERVICES MUST BE REGARDED AS WITHIN THE
PROHIBITION.  NOTHING SHORT OF THIS WILL GIVE FULL EFFECT TO ITS SPIRIT
AND PRINCIPLE.  HERE THE PLAINTIFF WAS PAID THE FULL COMPENSATION, BUT
WAS SUBJECTED TO AN INVOLUNTARY OBLIGATION TO PAY BACK A PART, AND THE
OBLIGATION WAS PROMPTLY ENFORCED.  OF WHAT AVAIL TO HIM WAS THE PART
WHICH WAS PAID WITH ONE HAND AND THEN TAKEN BACK WITH THE OTHER?  WAS
HE NOT PLACED IN PRACTICALLY THE SAME SITUATION AS IF IT HAD BEEN
WITHHELD IN THE FIRST INSTANCE?  ONLY BY SUBORDINATING SUBSTANCE TO
MERE FORM COULD IT BE HELD THAT HIS COMPENSATION WAS NOT DIMINISHED
... 

"THE PROHIBITION IS GENERAL, CONTAINS NO EXCEPTING WORDS AND APPEARS
TO BE DIRECTED AGAINST ALL DIMINUTION, WHETHER FOR ONE PURPOSE OR
ANOTHER; AND THE REASONS FOR ITS ADOPTION, AS PUBLICLY ASSIGNED AT THE
TIME AND COMMONLY ACCEPTED EVER SINCE, MAKE WITH IMPELLING FORCE FOR
THE CONCLUSION THAT THE FATHERS OF THE CONSTITUTION INTENDED TO
PROHIBIT DIMINUTION BY TAXATION AS WELL AS OTHERWISE,  - THAT THEY
REGARDED THE INDEPENDENCE OF THE JUDGES AS OF FAR GREATER IMPORTANCE
THAN ANY REVENUE THAT COULD COME FROM TAXING THEIR SALARIES.  ... 

"WHEN WE CONSIDER  ...  WHAT IS COMPREHENDED IN THE CONGRESSIONAL
POWER TO TAX,  - WHERE ITS EXERTION IS NOT DIRECTLY OR IMPLIEDLY
INTERDICTED,  - IT BECOMES ADDITIONALLY MANIFEST THAT THE PROHIBITION
NOW UNDER DISCUSSION WAS INTENDED TO EMBRACE AND PREVENT DIMINUTION
THROUGH THE EXERTION OF THAT POWER; FOR, AS THIS COURT REPEATEDLY HAS
HELD, THE POWER TO TAX CARRIES WITH IT 'THE POWER TO EMBARRASS AND
DESTROY'; MAY BE APPLIED TO EVERY OBJECT WITHIN ITS RANGE 'IN SUCH
MEASURE AS CONGRESS MAY DETERMINE'; ENABLES THAT BODY 'TO SELECT ONE
CALLING AND OMIT ANOTHER, TO TAX ONE CLASS OF PROPERTY AND TO FOREBEAR
TO TAX ANOTHER'; AND MAY BE APPLIED IN DIFFERENT WAYS TO DIFFERENT
OBJECTS SO LONG AS THERE IS 'GEOGRAPHICAL UNIFORMITY' IN THE DUTIES,
IMPOSTS AND EXCISES IMPOSED.  IS IT NOT THEREFORE MORALLY CERTAIN THAT
THE DISCERNING STATESMEN WHO FRAMED THE CONSTITUTION AND WERE SO
SEDULOUSLY BENT ON SECURING THE INDEPENDENCE OF THE JUDICIARY INTENDED
TO PROTECT THE COMPENSATION OF THE JUDGES FROM ASSAULT AND DIMINUTION
IN THE NAME OR FORM OF A TAX?  COULD NOT THE PURPOSE OF THE PROHIBITION
BE WHOLLY THWARTED IF THIS AVENUE OF ATTACK WERE LEFT OPEN?  CERTAINLY
THERE IS NOTHING IN THE WORDS OF THE PROHIBITION INDICATING THAT IT IS
DIRECTED AGAINST ONE LEGISLATIVE POWER AND NOT ANOTHER; AND IN OUR
OPINION DUE REGARD FOR ITS SPIRIT AND PRINCIPLE REQUIRES THAT IT BE
TAKEN AS DIRECTED AGAINST THEM ALL." 

MR. JUSTICE HOLMES WROTE A DISSENTING OPINION, IN WHICH MR. JUSTICE
BRANDEIS JOINED.  WITH THAT EXPRESSION HIS OPPOSITION TO THE DECISION
ENDED.  TWO YEARS LATER, IN GILLESPIE V. OKLAHOMA, 257 U.S. 501,
WRITING FOR THE COURT, INVALIDATING A STATE TAX UPON NET INCOME OF A
LESSEE FROM SALES OF HIS SHARE OF OIL AND GAS RECEIVED UNDER LEASES OF
RESTRICTED INDIAN LAND, HE SAID (P. 505): "IN CASES WHERE THE PRINCIPAL
IS ABSOLUTELY IMMUNE FROM INTERFERENCE AN INQUIRY IS ALLOWED INTO THE
SOURCES FROM WHICH NET INCOME IS DERIVED AND IF A PART OF IT COMES FROM
SUCH A SOURCE THE TAX IS PRO TANTO VOID; POLLOCK V. FARMERS' LOAN &
TRUST CO., 157 U.S. 429; 158 U.S. 601; A RULE LATELY ILLUSTRATED BY
EVANS V. GORE  ..."  AND IN THAT CASE HE RELIED ON THE TRUTH, AS PUT BY
CHIEF JUSTICE MARSHALL IN M'CULLOCK V. MARYLAND, 4 WHEAT.  316, 431,
THAT "THE POWER TO TAX INVOLVES THE POWER TO DESTROY."  HE QUOTED (P.
505) WITH APPROVAL FROM INDIAN OIL CO. V. OKLAHOMA, 240 U.S. 522, THE
STATEMENT OF THE OPINION (P. 530) THAT "A TAX UPON THE LEASES IS A TAX
UPON THE POWER TO MAKE THEM, AND COULD BE USED TO DESTROY THE POWER TO
MAKE THEM."  FN15 

MILES V. GRAHAM (1925), 268 U.S. 501, HELD INVALID SEC. 213(A),
REVENUE ACT OF 1918, (CONDEMNED IN EVANS V. GORE) WHEN APPLIED TO
COMPENSATION OF JUDGE GRAHAM, APPOINTED AFTER ITS ENACTMENT.  MR.
JUSTICE HOLMES JOINED IN THE DECISION.  MR. JUSTICE BRANDEIS MERELY
NOTED DISSENT. 

IN THE COURSE OF THE OPINION, WE SAID: 

"DOES THE CIRCUMSTANCE THAT DEFENDANT IN ERROR'S APPOINTMENT CAME
AFTER THE TAXING ACT REQUIRE A DIFFERENT VIEW CONCERNING HIS RIGHT TO
EXEMPTION?  THE ANSWER DEPENDS UPON THE IMPORT OF THE WORD
'COMPENSATION' IN THE CONSTITUTIONAL PROVISION. 

"THE WORDS AND HISTORY OF THE CLAUSE INDICATE THAT THE PURPOSE WAS TO
IMPOSE UPON CONGRESS THE DUTY DEFINITELY TO DECLARE WHAT SUM SHALL BE
RECEIVED BY EACH JUDGE OUT OF THE PUBLIC FUNDS AND THE TIMES FOR
PAYMENT.  WHEN THIS DUTY HAS BEEN COMPLIED WITH THE AMOUNT SPECIFIED
BECOMES THE COMPENSATION WHICH IS PROTECTED AGAINST DIMINUTION DURING
HIS CONTINUANCE IN OFFICE. 

"...  THE COMPENSATION FIXED BY LAW WHEN DEFENDANT IN ERROR ASSUMED
HIS OFFICIAL DUTIES WAS $7,500 PER ANNUM, AND TO EXACT A TAX IN RESPECT
OF THIS WOULD DIMINISH IT WITHIN THE PLAIN RULE OF EVANS V. GORE. 

"THE TAXING ACT BECAME A LAW (FEBRUARY 24, 1919) PRIOR TO THE STATUTE
PRESCRIBING SALARIES FOR JUDGES OF THE COURT OF CLAIMS (APPROVED
FEBRUARY 25, 1919), BUT IF THE DATES WERE REVERSED IT WOULD BE
IMPOSSIBLE TO CONSTRUE THE FORMER AS AN AMENDMENT WHICH REDUCED
SALARIES BY THE AMOUNT OF THE TAX IMPOSED.  NO JUDGE IS REQUIRED TO PAY
A DEFINITE PERCENTAGE OF HIS SALARY, BUT ALL ARE COMMANDED TO RETURN,
AS A PART OF 'GROSS INCOME,' 'THE COMPENSATION RECEIVED AS SUCH' FROM
THE UNITED STATES.  FROM THE 'GROSS INCOME' VARIOUS DEDUCTIONS AND
CREDITS ARE ALLOWED, AS FOR INTEREST PAID, CONTRIBUTIONS OR GIFTS MADE,
PERSONAL EXEMPTIONS VARYING WITH FAMILY RELATIONS, ETC., AND UPON THE
NET RESULT ASSESSMENT IS MADE.  THE PLAIN PURPOSE WAS TO REQUIRE ALL
JUDGES TO RETURN THEIR COMPENSATION AS AN ITEM OF 'GROSS INCOME,' AND
TO TAX THIS AS OTHER SALARIES.  THIS IS FORBIDDEN BY THE CONSTITUTION. 

"THE POWER OF CONGRESS DEFINITELY TO FIX THE COMPENSATION TO BE
RECEIVED AT STATED INTERVALS BY JUDGES THEREAFTER APPOINTED IS CLEAR. 
IT IS EQUALLY CLEAR, WE THINK, THAT THERE IS NO POWER TO TAX A JUDGE OF
A COURT OF THE UNITED STATES ON ACCOUNT OF THE SALARY PRESCRIBED FOR
HIM BY LAW." 

IN O'DONOGHUE V. UNITED STATES (1933), 289 U.S. 516, WE CONSTRUED THE
ACT OF JUNE 30, 1932  FN16 REDUCING THE SALARIES OF ALL JUDGES "EXCEPT
JUDGES WHOSE COMPENSATION MAY NOT, UNDER THE CONSTITUTION, BE
DIMINISHED DURING THEIR CONTINUANCE IN OFFICE."  WE THERE HELD THAT THE
SUPREME COURT AND COURT OF APPEALS OF THE DISTRICT OF COLUMBIA WERE
CONSTITUTIONAL COURTS AND THEREFORE THAT THE JUDGES OF THOSE COURTS
WERE EXCEPTED FROM THE SALARY REDUCTION.  WE CITED THE AUTHORITIES,
ADOPTED THE REASONING, AND REAFFIRMED THE CONCLUSIONS ON WHICH REST THE
COURT'S JUDGMENTS IN EVANS V. GORE AND MILES V. GRAHAM.  AND SEE BOOTH
V. UNITED STATES, 291 U.S. 339. 

EVIDENTLY THE COURT INTENDS TO DESTROY THE DECISION IN EVANS V.
GORE.  WITHOUT SUGGESTING THAT THERE IS ANY DISTINCTION BETWEEN THAT
CASE AND MILES V. GRAHAM, IT DECLARES THAT THE LATTER "CANNOT
SURVIVE."  BUT THE DECISION OF TODAY FAILS TO DEAL WITH, MUCH LESS TO
DETRACT FROM THE REASONING OF THOSE CASES.  THE OPINION WOULD IMPLY
THAT THE LETTER OF CHIEF JUSTICE TANEY TO THE SECRETARY OF THE
TREASURY, AND THE SEPARATE OPINION OF MR. JUSTICE FIELD IN THE POLLOCK
CASE WERE TREATED AS HAVING WEIGHT AS JUDICIAL DECISIONS.  BUT NOWHERE
HAS THAT EVER BEEN SUGGESTED.  HOWEVER, ALL WHO ARE FAMILIAR WITH OUR
JUDICIAL HISTORY KNOW THAT ENTITLED TO GREAT RESPECT ARE THE REASONED
CONCLUSIONS OF THESE EMINENT AMERICAN JURISTS AS TO THE TRUE INTENT AND
MEANING OF THE CONSTITUTION OF THE UNITED STATES.  AND SIMILARLY WORTHY
OF ATTENTION ARE THE OPINIONS OF THE ATTORNEYS GENERAL AND OTHER PUBLIC
OFFICIALS FOLLOWING THE REASONING OF CHIEF JUSTICE TANEY. 

NOW THE COURT CITES, AS IF ENTITLED TO PREVAIL AGAINST THOSE WELL
SUSTAINED OPINIONS AND THE DELIBERATE JUDGMENTS OF THIS COURT, OPPOSING
VIEWS - IF INDEED UPON EXAMINATION THEY REASONABLY MAY BE SO DEEMED -
OF ENGLISH SPEAKING JUDGES IN FOREIGN COUNTRIES. 

IT REFERS, FOOTNOTE 6, TO THE DECISION OF THE PRIVY COUNCIL IN JUDGES
V. ATTORNEY-GENERAL OF SASKATCHEWAN (1937), 2 D.L.R. 209, CONSTRUING
INCOME TAX STATUTES OF SASKATCHEWAN.  NEITHER THE DOMINION NOR THE
PROVINCE HAS ANY LAW FORBIDDING DIMINUTION OF COMPENSATION OF JUDGES
WHILE IN OFFICE AND THAT DECISION HAS NOTHING TO DO WITH THE QUESTION
BEFORE US.  THE AUSTRALIAN AND SOUTH AFRICAN CASES CITED, FOOTNOTES 6
AND 8, INVOLVED CONSTRUCTION OF INCOME TAX STATUTES UNDER CONSTITUTIONS
OR CHARTERS CREATED BY LEGISLATIVE ENACTMENTS AND SUBJECT TO
AUTHORITATIVE INTERPRETATION OR CHANGE BY THE LOCAL OR BRITISH
PARLIAMENT.  THEY SHED NO LIGHT UPON THE ISSUE IN THIS CASE. 

THE OPINION CLAIMS NO SUPPORT FROM ANY STATE COURT DECISION.  THE ONE
IT CITES, FOOTNOTE 8, THAT OF THE MARYLAND COURT OF APPEALS IN GORDY V.
DENNIS, 5 A.2D 69, HELD THAT UNDER A CLAUSE IN THE CONSTITUTION OF
MARYLAND LIKE THAT IN ART. III, SEC. 1, THE COMPENSATION OF STATE
JUDGES MAY NOT BE TAXED. 

THE OPINION ALSO CITES, FOOTNOTE 7, SELECTED GAINSAYING WRITINGS OF
PROFESSORS,  - SOME ARE LAWYERS AND SOME ARE NOT - BUT WITHOUT
SPECIFICATION OF OR REFERENCE TO THE REASONS UPON WHICH THEIR VIEWS
REST.  AND IN ADDITION IT CITES NOTES PUBLISHED IN LAW REVIEWS, SOME
SIGNED AND SOME NOT; PRESUMABLY THE LATTER WERE PREPARED BY LAW
STUDENTS. 

THE SUGGESTION THAT, AS CITIZENS, JUDGES ARE NOT IMMUNE FROM TAXATION
BEGS THE QUESTION HERE PRESENTED.  THE CONSTITUTION ITSELF PUTS JUDGES
IN A SEPARATE CLASS, DECLARING THAT AT STATED TIMES THEY SHALL RECEIVE
FOR THEIR SERVICES COMPENSATION WHICH "SHALL NOT BE DIMINISHED."  AND
SO THEIR SALARIES ARE DISTINGUISHED FROM INCOME OF OTHERS.  THE
IMMUNITY EXTENDS ONLY TO COMPENSATION FOR THEIR SERVICES.  NO QUESTION
OF COMPARISON OR REASONABLENESS IS INVOLVED. 

ADMITTEDLY THE COURT NOW REPUDIATES ITS EARLIER DECISIONS UPON THE
POINT HERE IN ISSUE.  THE PROVISION DEFINING TENURE AND PROVIDING FOR
UNDIMINISHABLE COMPENSATION WAS ADOPTED WITH UNUSUAL ACCORD.  THERE HAS
BEEN UNANIMITY OF OPINION THAT, BECAUSE IN COMPARISON WITH THE
LEGISLATIVE AND EXECUTIVE THE JUDICIAL DEPARTMENT IS WEAK, ITS
INDEPENDENCE IS ESSENTIAL TO OUR SYSTEM OF GOVERNMENT.  THESE
SAFEGUARDS GO FAR TO INSURE THAT INDEPENDENCE.  AND, FROM THE
BEGINNING, STATESMEN AND JURISTS HAVE AGREED THAT THE CLAUSE FORBIDS
DIMINUTION OF JUDGES' COMPENSATION BY ANY FORM OF LEGISLATION.  THE
CLAUSE IN QUESTION IS PLAIN:  NO EXCEPTION IS EXPRESSED; NONE MAY BE
IMPLIED.  ITS UNQUALIFIED COMMAND SHOULD BE GIVEN EFFECT. 

FOR ONE CONVINCED THAT THE JUDGMENT NOW GIVEN IS WRONG, IT IS
IMPOSSIBLE TO ACQUIESCE OR MERELY TO NOTE DISSENT.  AND SO THIS OPINION
IS WRITTEN TO INDICATE THE GROUNDS OF OPPOSITION AND TO EVIDENCE REGRET
THAT ANOTHER LANDMARK HAS BEEN REMOVED. 

I AM OF OPINION THAT THE JUDGMENT OF THE DISTRICT COURT SHOULD BE
AFFIRMED. 

FN1  C. 6, 44 STAT. 919. 

FN2  SEC. 22(A), C. 209, 47 STAT. 169. 

FN3  SEC. 22(A), C. 277, 48 STAT. 680. 

FN4  SEC. 22(A), C. 690, 49 STAT. 1648. 

FN5  ACT OF AUGUST 24, 1937, SEC. 2, C. 754, 50 STAT. 752. 

FN6  THE OPINION IS SET FORTH IN A FOOTNOTE AT P. 160 ET SEQ., 3
CRANCH. 

FN7  C. 119, 12 STAT. 472. 

FN8  PRINTED IN 157 U.S. AT P. 701. 

FN9  MILLER ON THE CONSTITUTION OF THE UNITED STATES P. 247. 

FN10  SECTION 33, 28 STAT. 557, IN TERMS WAS MUCH LIKE SEC. 86 OF THE
ACT OF 1862; IT LEVIED "ON ALL SALARIES OF OFFICERS, OR PAYMENTS  ...
TO PERSONS IN THE  ...  SERVICE OF THE UNITED STATES, ...  WHEN
EXCEEDING THE RATE OF FOUR THOUSAND DOLLARS PER ANNUM, A TAX OF TWO PER
CENTUM ON THE EXCESS ABOVE THE SAID FOUR THOUSAND DOLLARS" AND MADE IT
THE DUTY OF DISBURSING OFFICERS TO DEDUCT AND WITHHOLD THE TAX. 

FN11  SEC. 2B, 38 STAT. 168. 

FN12  SEC. 4, 39 STAT. 759. 

FN13  SEC. 213(A), 40 STAT. 1062. 

FN14  H. REPT. NO. 767, 65TH CONG., 2D SESS., P. 29; SEN. REPT. NO.
617, 65TH CONG., 3D SESS., P. 6; 56 CONG. REC., P. 10370. 

FN15  GILLESPIE V. OKLAHOMA IS ONE OF THE DECISIONS SUBJECTED TO
CONDEMNATORY COMMENT IN THE CONCURRING OPINION IN GRAVES V. NEW YORK EX
REL. O'KEEFE, 306 U.S. 466.  IT IS THERE SAID:  "A SUCCESSION OF
DECISIONS (GILLESPIE V. OKLAHOMA IS THE FIRST CITED) THEREBY WITHDREW
FROM THE TAXING POWER OF THE STATES AND NATION A VERY CONSIDERABLE
RANGE OF WEALTH WITHOUT REGARD TO THE ACTUAL WORKINGS OF OUR
FEDERALISM, AND THIS, TOO, WHEN THE FINANCIAL NEEDS OF ALL GOVERNMENTS
BEGAN STEADILY TO MOUNT." 

AT ANOTHER PLACE IN THAT CONCURRENCE, THE WRITER STATED:  "THE VOLUME
OF THE COURT'S BUSINESS HAS LONG SINCE MADE IMPOSSIBLE THE EARLY
HEALTHY PRACTICE WHEREBY THE JUSTICES GAVE EXPRESSION TO INDIVIDUAL
OPINIONS.  BUT THE OLD TRADITION STILL HAS RELEVANCE WHEN AN IMPORTANT
SHIFT IN CONSTITUTIONAL DOCTRINE IS ANNOUNCED AFTER A RECONSTRUCTION IN
THE MEMBERSHIP OF THE COURT.  ... THE ARGUMENTS UPON WHICH MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, RESTED  ...  HAVE BEEN DISTORTED BY STERILE
REFINEMENTS UNRELATED TO AFFAIRS.  THESE REFINEMENTS DERIVED AUTHORITY
FROM AN UNFORTUNATE REMARK IN THE OPINION IN MCCULLOCH V. MARYLAND. 
PARTLY AS A FLOURISH OF RHETORIC AND PARTLY BECAUSE THE INTELLECTUAL
FASHION OF THE TIMES INDULGED A FREE USE OF ABSOLUTES, CHIEF JUSTICE
MARSHALL GAVE CURRENCY TO THE PHRASE THAT 'THE POWER TO TAX INVOLVES
THE POWER TO DESTROY.'  ... THE WEB OF UNREALITY SPUN FROM MARSHALL'S
FAMOUS DICTUM WAS BRUSHED AWAY BY ONE STROKE OF MR. JUSTICE HOLMES'S
PEN:  'THE POWER TO TAX IS NOT THE POWER TO DESTROY WHILE THIS COURT
SITS'.  PANHANDLE OIL CO. V. MISSISSIPPI, 277 U.S. 218, 223(DISSENT)." 
BUT, IN THE GILLESPIE CASE, MR. JUSTICE HOLMES, SPEAKING FOR THE
COURT, HAD DEFINITELY APPLIED THE DOCTRINE THAT THE POWER TO TAX DOES
INVOLVE THE POWER TO DESTROY. 

IN THE PANHANDLE CASE NEITHER THE COURT, NOR INDEED ANOTHER JUSTICE
DISSENTING, WAS IMPRESSED BY "THE POWER TO TAX IS NOT THE POWER TO
DESTROY WHILE THIS COURT SITS."  THE STATEMENT IS VAGUE AND MAY BE READ
TO IMPLY A POWER THAT THIS COURT NEVER POSSESSED.  IF TAKEN TO MEAN
THAT WE ARE EMPOWERED TO REGULATE OR TO LIMIT THE EXERTION BY CONGRESS
OF ITS POWER OF TAXATION, IT JUSTLY MAY BE REGARDED AS HYPERBOLE; IF
TAKEN TO MEAN THAT THIS COURT HAS POWER TO PREVENT IMPOSITION BY
CONGRESS OF TAXES LAID TO DISCOURAGE, TO DESTROY, OR TO PROTECT, THEN
IT IS IN THE TEETH OF THE LAW.  SEE, E.G., VEAZIE BANK V. FENNO, 8
WALL.  533, 548; MCCRAY V. UNITED STATES, 195 U.S. 27, 53 ET SEQ.;
MAGNANO CO. V. HAMILTON, 292 U.S. 40, 44 ET SEQ.; CINCINNATI SOAP CO.
V. UNITED STATES, 301 U.S. 308. 

FN16  SECS. 106, 107, 47 STAT. 401, 402. 
..END :























RORICK V. DEVON SYNDICATE, 307 U.S. 299 


NO. 676.  ARGUED APRIL 24, 1939.  - DECIDED MAY 22, 1939.  - 100 F.2D
844, REVERSED. 


1.  REVIEW IS CONFINED TO THE QUESTIONS URGED IN THE PETITION FOR
CERTIORARI.  P. 303. 

2.  THE FACT THAT HE IS AN EMPLOYEE OF A CORPORATION OF WHICH THE
PLAINTIFF IN THE CASE IS PRESIDENT DOES NOT DISQUALIFY A NOTARY PUBLIC
UNDER SEC. 11532, GENERAL CODE OF OHIO, FROM TAKING AN AFFIDAVIT IN
ATTACHMENT OR GARNISHMENT.  P. 303. 

3.  UNDER THE GENERAL CODE OF OHIO, SECS. 11279, 11819, WHEN A CIVIL
ACTION FOR MONEY HAS BEEN BEGUN BY FILING THE PETITION AND ISSUING
SUMMONS, AN ATTACHMENT OR GARNISHMENT IS NOT PREMATURE BECAUSE OBTAINED
PRIOR TO PERSONAL SERVICE OR BEFORE COMMENCEMENT OF SERVICE BY
PUBLICATION.  P. 306. 

4.  UNDER R.S. SECS. 646 AND 915, WHERE AN ACTION HAS BEEN REMOVED TO
THE FEDERAL COURT AFTER THE STATE COURT HAD ACQUIRED JURISDICTION IN
REM BY ATTACHMENT OR GARNISHMENT, THE FEDERAL COURT, WITHOUT PRIOR
PERSONAL SERVICE OF SUMMONS, HAS THE SAME JURISDICTION TO EXTEND THE
ATTACHMENT OR GARNISHMENT TO OTHER PROPERTY AS THE STATE COURT WOULD
HAVE HAD UNDER THE STATE LAW IF THE CASE HAD NOT BEEN REMOVED.  BIG
VEIN COAL CO. V. READ, 229 U.S. 31, LIMITED.  P. 312. 

RORICK V. DEVON SYNDICATE, LTD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 306 U.S. 626, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISCHARGING AN ATTACHMENT AND GARNISHMENT AND DISMISSING THE PETITION,
IN AN ACTION REMOVED FROM A STATE COURT ON THE GROUND OF DIVERSE
CITIZENSHIP. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON A WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT
COURT OF APPEALS FOR THE SIXTH CIRCUIT.  WE GRANTED THE WRIT BECAUSE
THE COURT BELOW HAD DECIDED AN IMPORTANT QUESTION OF LOCAL LAW IN A WAY
PROBABLY IN CONFLICT WITH APPLICABLE LOCAL DECISIONS AND PROBABLY HAD
MISCONSTRUED CERTAIN FEDERAL STATUTES AND A DECISION OF THIS COURT
THEREUNDER. 

THE BASIC QUESTION HERE INVOLVED IS WHETHER A FEDERAL DISTRICT COURT,
IN THE ABSENCE OF JURISDICTION IN PERSONAM AND AFTER REMOVAL OF A CAUSE
FROM A STATE COURT WHERE JURISDICTION IN REM OVER CERTAIN PROPERTY OF A
DEFENDANT HAS ALREADY BEEN ACQUIRED, CAN ISSUE AN ORDER OF ATTACHMENT
OR GARNISHMENT AGAINST OTHER PROPERTY OF THE SAME DEFENDANT. 

PETITIONER, A RESIDENT OF OHIO, BROUGHT SUIT ON JUNE 19, 1930, IN A
STATE COURT IN OHIO AGAINST RESPONDENT, A NONRESIDENT CORPORATION
ORGANIZED UNDER CANADIAN LAW, ON A CONTRACT CLAIM FOR PERSONAL SERVICES
RENDERED.  FN1  SUMMONS WAS CONCURRENTLY ISSUED, BUT PERSONAL SERVICE
WAS NEVER HAD; AND SIMULTANEOUSLY, AN AFFIDAVIT IN ATTACHMENT AND
GARNISHMENT WAS FILED.  A SECOND AFFIDAVIT IN ATTACHMENT AND
GARNISHMENT WAS FILED ON JUNE 27, 1930, NAMING ADDITIONAL PERSONS; AND
SHORTLY THEREAFTER CERTAIN FUNDS AND PROPERTY OF RESPONDENT WERE
GARNISHEED.  SUBSEQUENTLY, SERVICE BY PUBLICATION WAS COMPLETED; AND
SOON AFTERWARDS, AND BEFORE JUDGMENT, RESPONDENT APPEARED SPECIALLY AND
OBTAINED A REMOVAL OF THE CAUSE TO THE DISTRICT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION.  IN THE
DISTRICT COURT RESPONDENT ALSO APPEARED SPECIALLY AND MOVED TO QUASH
THE SERVICE BY PUBLICATION AND TO DISMISS THE ATTACHMENT AND
GARNISHMENT.  NOTHING FURTHER WAS DONE IN THE CAUSE FOR OVER FIVE
YEARS.  THEN, ON FEBRUARY 17, 1936, PETITIONER, WITH LEAVE OF THE
DISTRICT COURT, FILED A SUPPLEMENTAL AND AMENDED PETITION REPEATING IN
SUBSTANCE THE ALLEGATIONS OF THE ORIGINAL PETITION; AND A SUPPLEMENTAL
AFFIDAVIT IN GARNISHMENT WHICH NAMED AS GARNISHEES THE SAME PERSONS
DESIGNATED IN THE ORIGINAL AFFIDAVITS OF JUNE 1930 IN THE STATE COURT. 
ON THE SAME DAY, THE DISTRICT COURT ISSUED AN ORDER OF ATTACHMENT AND
NOTICES TO GARNISHEES.  UNDER THE LATTER ADDITIONAL FUNDS IN THE HANDS
OF ONE OF THE GARNISHEES WERE REACHED.  AND ON APRIL 11, 1936,
RESPONDENTS AGAIN APPEARED SPECIALLY IN THE DISTRICT COURT, AND MOVED,
INTER ALIA, TO DISMISS THE ATTACHMENT AND GARNISHMENT UNDER THE
SUPPLEMENTAL AFFIDAVIT OF FEBRUARY 17, 1936.  AFTER REMOVAL TO THE
DISTRICT COURT THERE WAS NEITHER PERSONAL SERVICE, NOR, SO FAR AS
APPEARS, SERVICE BY PUBLICATION. 

BY ITS MOTIONS OF JANUARY 26, 1931, AND APRIL 11, 1936, RESPONDENT
ASSERTED THAT THE AFFIDAVITS IN ATTACHMENT AND GARNISHMENT WERE
DEFECTIVE AND VOID UNDER OHIO LAW; THAT THERE WAS NO PROPERTY OF
RESPONDENT WITHIN THE JURISDICTION OF THE DISTRICT COURT OR THE STATE
COURT ON WHICH ANY VALID ATTACHMENT COULD BE OR WAS LEVIED; THAT THERE
WAS NO PROPERTY OF RESPONDENT IN THE POSSESSION OF ANY OF THE
GARNISHEES; THAT THE ATTACHMENT AND GARNISHMENT AND THE SERVICE OF
SUMMONS WERE VOID BY REASON OF INCORRECT DESIGNATION OF RESPONDENT;
THAT THERE WAS NO LAWFUL SERVICE OF SUMMONS UNDER THE SUPPLEMENTAL AND
AMENDED PETITION MADE ON RESPONDENT; THAT THE SUPPLEMENTAL ATTACHMENT
AND GARNISHMENT UNDER THE AMENDED PETITION WERE ALSO VOID FOR LACK OF
PERSONAL SERVICE; AND THAT THE DISTRICT COURT HAD NO JURISDICTION OVER
EITHER THE RESPONDENT OR ITS PROPERTY APPROPRIATE FOR THE MAINTENANCE
OF THIS ACTION. 

AFTER ORAL ARGUMENT ON RESPONDENT'S MOTIONS, THE DISTRICT COURT
ENTERED AN ORDER DISCHARGING THE ATTACHMENT AND GARNISHMENT AND
STRIKING THE PETITION FROM THE FILES OF THE COURT, ON THE GROUNDS THAT
THE AFFIDAVITS IN ATTACHMENT AND GARNISHMENT, DATED JUNE 19 AND JUNE
27, 1930, WERE DEFECTIVE AND VOID, AND THAT THE SUPPLEMENTAL AFFIDAVIT
IN ATTACHMENT AND GARNISHMENT WAS ALSO VOID AND INEFFECTIVE, SINCE NO
PERSONAL SERVICE HAD BEEN MADE ON RESPONDENT.  ON APPEAL TO THE CIRCUIT
COURT OF APPEALS THE JUDGMENT WAS AFFIRMED ON THE GROUNDS THAT THE
ORIGINAL ATTACHMENT OR GARNISHMENT IN THE STATE COURT WAS PREMATURE AND
VOID; THAT ON REMOVAL THE FEDERAL DISTRICT COURT COULD NOT VALIDATE AN
ATTACHMENT NOT PERFECTED IN THE STATE COURT PROCEEDING; AND THAT
ATTACHMENT MAY NOT ISSUE IN A FEDERAL DISTRICT COURT UNTIL THE
DEFENDANT HAS BEEN PERSONALLY SERVED OR HAS VOLUNTARILY APPEARED. 

OF THE VARIOUS QUESTIONS RAISED BELOW AND BRIEFED HERE, ONLY THOSE
URGED IN THE PETITION FOR CERTIORARI AND INCIDENTAL TO THEIR
DETERMINATION WILL BE CONSIDERED ON REVIEW.  GENERAL TALKING PICTURES
CORP. V. WESTERN ELECTRIC CO., 304 U.S. 175; CONNECTICUT RAILWAY &
LIGHTING CO. V. PALMER, 305 U.S. 493. 

BEFORE COMING TO THE BASIC QUESTION HERE INVOLVED, NAMELY, WHETHER
THE GARNISHMENT SECURED IN THE DISTRICT COURT UNDER THE SUPPLEMENTAL
AFFIDAVIT OF FEBRUARY 17, 1936, WAS VOID, THERE ARE TWO PRELIMINARY
QUESTIONS.  THESE ARE (1) WHETHER THE NOTARY PUBLIC BEFORE WHOM THE
AFFIDAVITS IN ATTACHMENT AND GARNISHMENT OF JUNE 19 AND JUNE 27, 1930,
WERE TAKEN WAS DISQUALIFIED, THUS RENDERING THE GARNISHMENT PROCEEDINGS
VOID AND OF NO EFFECT; AND (2) WHETHER THE GARNISHMENTS OBTAINED IN THE
STATE COURT WERE PREMATURE AND VOID BECAUSE THEY WERE SECURED WITHOUT
PERSONAL SERVICE AND PRIOR TO THE FIRST PUBLICATION OF NOTICE OF
CONSTRUCTIVE SERVICE. 

FIRST.  THE OHIO GENERAL CODE PROVIDED THAT AN AFFIDAVIT MIGHT BE
USED TO OBTAIN A PROVISIONAL REMEDY SUCH AS ATTACHMENT OR GARNISHMENT
(SEC. 11523), AND THAT AN AFFIDAVIT MIGHT BE MADE BEFORE ANY PERSON
AUTHORIZED TO TAKE DEPOSITIONS (SEC. 11524).  SEC. 11532 PROVIDED THAT
"THE OFFICER BEFORE WHOM DEPOSITIONS ARE TAKEN MUST NOT BE A RELATIVE
OR ATTORNEY OF EITHER PARTY, OR OTHERWISE INTERESTED IN THE EVENT OF
THE ACTION OR PROCEEDING."  THE NOTARY IN QUESTION WAS D.W. DRENNAN, A
MEMBER OF THE OHIO BAR AND OF THE BAR OF THE DISTRICT COURT.  ALTHOUGH
DRENNAN HAD SOME PRIVATE PRACTICE OF HIS OWN, HE WAS IN THE EMPLOY OF A
CORPORATION, OF WHICH PETITIONER WAS PRESIDENT, AND PREVIOUSLY IN THE
EMPLOY OF A PREDECESSOR PARTNERSHIP, OF WHICH PETITIONER WAS A MEMBER. 
BUT HE DID NOT REPRESENT PETITIONER IN THIS CASE; NOR HAD HE EVER
REPRESENTED HIM AS PERSONAL COUNSEL; NOR WAS HE CONSULTED BY PETITIONER
WITH REFERENCE TO THIS CASE; NOR WAS HE RELATED TO PETITIONER; NOR DID
HE HAVE ANY FINANCIAL STAKE IN THE OUTCOME OF THIS SUIT.  HIS SOLE
CONNECTION WITH THE CASE WAS THAT HE ACTED AS NOTARY ON A FEW PAPERS. 
FURTHERMORE, THE PETITION IN THIS CASE ALLEGED A CAUSE OF ACTION
PERSONAL TO PETITIONER, NOT ONE ON BEHALF OF THE CORPORATION BY WHICH
DRENNAN WAS EMPLOYED OR ON BEHALF OF ITS PREDECESSOR PARTNERSHIP. 

SINCE DRENNAN WAS NOT A "RELATIVE OR ATTORNEY" OF PETITIONER, HE WAS
NOT DISQUALIFIED TO TAKE THE AFFIDAVIT UNLESS WITHIN THE MEANING OF THE
OHIO STATUTE HE WAS "OTHERWISE INTERESTED IN THE EVENT OF THE ACTION OR
PROCEEDING."  THE DISTRICT COURT HELD THAT HE WAS SO INTERESTED.  WE DO
NOT SO INTERPRET THE OHIO LAW.  ABSENT SOME LEGAL OR MATERIAL INTEREST,
IT SEEMS TO US, ON THE BASIS OF THE OHIO AUTHORITIES WHICH WE HAVE
FOUND, THAT THERE MUST BE SOME IMMEDIATE INTEREST IN THE ACTION AKIN TO
THAT OF A RELATIVE IN ORDER FOR THE NOTARY TO RUN AFOUL OF THE
STATUTORY PROHIBITION.  DISABILITY THUS DEPENDS ON THE PARTICULAR
CIRCUMSTANCES OF EACH CASE - THE DEGREE OF INTIMACY IN RELATIONSHIP
BETWEEN PETITIONER AND NOTARY.  IN RHINELANDER CO. V. PITTSBURGH CO.,
15 OHIO C.C. (N.S.)  286, AN OHIO COURT HELD THAT A YOUNG MAN WORKING
AS A SALARIED EMPLOYEE FOR A FIRM OF ATTORNEYS RETAINED IN THE CASE WAS
NOT DISQUALIFIED BY THE FOREGOING SECTION FROM TAKING AN AFFIDAVIT IN
THE CASE AS NOTARY.  THE INTEREST WHICH DISQUALIFIES UNDER THE OHIO
STATUTE, SAID THAT COURT, IS "SOME LEGAL, CERTAIN AND IMMEDIATE
INTEREST SUCH AS FORMERLY DISQUALIFIED A WITNESS FROM TESTIFYING." 
ID., P. 286.  CERTAINLY, IF AN EMPLOYEE OF ONE WHO HIMSELF IS
DISQUALIFIED TO ACT AS NOTARY IS QUALIFIED SO TO ACT, AN EMPLOYEE OF A
CORPORATION WHOSE OFFICER IS SUING NOT ON BEHALF OF THE CORPORATION BUT
FOR HIMSELF WOULD SEEM TO BE SIMILARLY QUALIFIED UNDER OHIO LAW.  THIS
SEEMS TO US ESPECIALLY PERSUASIVE, SINCE THE NOTARY IN QUESTION WAS IN
FACT TAKING NOT A DEPOSITION BUT AN AFFIDAVIT AND SINCE THE AFFIDAVIT
WAS NOT FOR USE AS EVIDENCE.  FN2 ACCORDINGLY, WE CONCLUDE THAT THE
AFFIDAVITS OF JUNE 19 AND JUNE 27, 1930, WERE NOT DEFECTIVE BECAUSE
THEY WERE SWORN TO BEFORE D. W. DRENNAN.  FN3 

SECOND.  SEC. 11279 OF THE OHIO GENERAL CODE PROVIDES THAT "A CIVIL
ACTION MUST BE COMMENCED BY FILING IN THE OFFICE OF THE CLERK OF THE
PROPER COURT A PETITION, AND CAUSING A SUMMONS TO BE ISSUED THEREON." 
SEC. 11819 PROVIDES THAT "IN A CIVIL ACTION FOR THE RECOVERY OF MONEY,
AT OR AFTER ITS COMMENCEMENT, THE PLAINTIFF MAY HAVE AN ATTACHMENT
AGAINST THE PROPERTY OF THE DEFENDANT" UPON VARIOUS ENUMERATED
GROUNDS.  IN THIS CASE THE PETITION WAS FILED, SUMMONS WAS ISSUED, AND
AN AFFIDAVIT IN ATTACHMENT AND GARNISHMENT WAS FILED - ALL ON JUNE 19,
1930.  IT WOULD SEEM, THEREFORE, THAT SEC. 11819 WAS SATISFIED.  BUT
THE CIRCUIT COURT OF APPEALS HELD THAT AN ATTACHMENT WHICH ISSUED
BEFORE PERSONAL SERVICE WAS OBTAINED, OR BEFORE THE BEGINNING OF
PUBLICATION FOR SUBSTITUTED SERVICE, WAS PREMATURE AND VOID.  UNDER
THAT TEST THE ATTACHMENTS AND GARNISHMENTS SOUGHT IN THE STATE COURT ON
JUNE 19 AND JUNE 27, 1930, WERE DEFECTIVE SINCE PERSONAL SERVICE WAS
NEVER HAD AND SINCE SERVICE BY PUBLICATION WAS NOT COMMENCED UNTIL
SEVERAL MONTHS LATER. 

THE CIRCUIT COURT OF APPEALS REACHED THIS CONCLUSION IN RELIANCE UPON
ITS EARLIER DECISION IN DOHERTY V. CREMERING, 83 F.2D 388, AND UPON THE
DECISION OF THE SUPREME COURT OF OHIO IN SEIBERT V. SWITZER, 35 OHIO
ST. 661. 

WE THINK THE CIRCUIT COURT OF APPEALS ERRED.  THE CHRONOLOGY OF
EVENTS IN THE DOHERTY CASE IS THE SAME AS THE CHRONOLOGY HERE -
ATTACHMENT WAS ISSUED ON THE DAY THE PETITION WAS FILED AND
SUBSTANTIALLY IN ADVANCE OF COMMENCEMENT OF SERVICE BY PUBLICATION. 
PERSONAL SERVICE WAS NOT HAD.  THE COURT RELIED UPON SEC. 11230 OF THE
OHIO GENERAL CODE AND UPON SEIBERT V. SWITZER, SUPRA.  SEC. 11230 IS
CONTAINED IN CHAPTER 2 OF DIVISION 1 OF TITLE IV OF THE OHIO GENERAL
CODE.  TITLE IV IS ENTITLED "PROCEDURE IN COMMON PLEAS COURT."  CHAPTER
2 OF DIVISION 1 IS ENTITLED "LIMITATION OF ACTIONS."  SEC. 11230
PROVIDES:  "AN ACTION SHALL BE DEEMED TO BE COMMENCED WITHIN THE
MEANING OF THIS CHAPTER, AS TO EACH DEFENDANT, AT THE DATE OF THE
SUMMONS WHICH IS SERVED ON HIM OR ON A CODEFENDANT WHO IS A JOINT
CONTRACTOR, OR OTHERWISE UNITED IN INTEREST WITH HIM.  WHEN SERVICE BY
PUBLICATION IS PROPER, THE ACTION SHALL BE DEEMED TO BE COMMENCED AT
THE DATE OF THE FIRST PUBLICATION, IF IT BE REGULARLY MADE." 

IT SEEMS CLEAR TO US THAT THE WORDS "AN ACTION SHALL BE DEEMED TO BE
COMMENCED WITHIN THE MEANING OF THIS CHAPTER" CONFINE THE OPERATION OF
THE SECTION TO MATTERS CONCERNING THE LIMITATION OF ACTIONS, THE
SUBJECT TO WHICH THE CHAPTER IS EXPRESSLY DEVOTED.  THE SUPREME COURT
COMMISSION OF OHIO IN BACHER V. SHAWHAN, 41 OHIO ST. 271, SO
INTERPRETED SEC. 4988 REV. STATS. (NOW SEC. 11231 OF THE OHIO GENERAL
CODE) WHICH PROVIDED: "AN ATTEMPT TO COMMENCE AN ACTION SHALL BE DEEMED
TO BE EQUIVALENT TO THE COMMENCEMENT THEREOF, WITHIN THE MEANING OF
THIS CHAPTER, WHEN THE PARTY DILIGENTLY ENDEAVORS TO PROCURE SERVICE;
BUT SUCH ATTEMPT MUST BE FOLLOWED BY SERVICE WITHIN SIXTY DAYS."  THE
COURT HELD THAT THE TRIAL COURT DID NOT LOSE JURISDICTION BECAUSE
SERVICE BY PUBLICATION WAS NOT COMMENCED, PERSONAL SERVICE NOT BEING
HAD, UNTIL SOME SEVEN MONTHS AFTER SUIT WAS BROUGHT AND AN ORDER OF
ATTACHMENT WAS ISSUED AND LEVIED.  THE COURT SAID:  "IT WILL BE
OBSERVED THAT THE RESTRICTIVE WORDS 'WITHIN THE MEANING OF THIS
CHAPTER,' CONFINE THE OPERATION OF THE SECTION TO MATTERS CONCERNING
THE LIMITATIONS OF ACTIONS.  IT SEEMS TO US THAT THE LEGISLATIVE INTENT
WAS TO PREVENT PARTIES FROM INDEFINITELY PROLONGING A SUSPENSION OF THE
STATUTE BY A MERE ATTEMPT TO SUE."  ID., P. 272. 

ON THAT AUTHORITY WE CONCLUDE THAT "AT OR AFTER ITS COMMENCEMENT" AS
USED IN SEC. 11819 MEANS THE COMMENCEMENT DESCRIBED IN SEC. 11279, NOT
THE COMMENCEMENT DESCRIBED IN SEC. 11230.  ADDITIONAL SUPPORT FOR THIS
CONCLUSION IS FOUND IN SEIBERT V. SWITZER, 35 OHIO ST. 661, ON WHICH
THE CIRCUIT COURT OF APPEALS RELIED FOR THE CONTRARY CONCLUSION.  THERE
THE VALIDITY OF AN ORDER OF ATTACHMENT WHICH HAD BEEN ISSUED AND SERVED
PRIOR TO THE FILING OF THE PETITION WAS IN ISSUE.  AT THAT TIME SEC.
11279(THEN CIVIL CODE, SEC. 55) WAS IDENTICALLY THE SAME AS AT
PRESENT.  SEC. 11819(THEN CIVIL CODE, SEC. 191) WAS, SO FAR AS MATERIAL
HERE, SUBSTANTIALLY THE SAME AS IT IS NOW; I.E., IT ALLOWED THE
PLAINTIFF IN A CIVIL ACTION FOR THE RECOVERY OF MONEY TO HAVE AN
ATTACHMENT "AT OR AFTER THE COMMENCEMENT" OF THE ACTION.  SEC.
11820(THEN CIVIL CODE, SEC. 192) AT THAT TIME, AS NOW, PROVIDED THAT
THE ORDER OF ATTACHMENT SHOULD BE MADE "BY THE CLERK OF THE COURT IN
WHICH THE ACTION IS BROUGHT."  AND SEC. 11821(THEN CIVIL CODE, SEC.
193) REQUIRED IN CASE OF ATTACHMENT, AS IT DOES NOW, A BOND BY THE
"PLAINTIFF" TO THE "DEFENDANT" EXCEPT IN CASE DEFENDANT WAS A NON
RESIDENT OR A FOREIGN CORPORATION.  THE COURT IN SEIBERT V. SWITZER,
SUPRA, HELD THAT THE ORDER OF ATTACHMENT WAS UNAUTHORIZED AND VOID,
FN4  AND SAID:  "NO ACTION WAS, IN FACT, COMMENCED BY THE FILING OF A
PETITION, UNTIL SOME THREE OR FOUR HOURS AFTER THE ORDER OF ATTACHMENT
WAS SERVED AND RETURNED."    "THE STATUTE DOES NOT AUTHORIZE AN
ATTACHMENT EXCEPT IN AN ACTION, AND THE CLERK OF THE COURT HAS NO
AUTHORITY TO ISSUE THE ORDER OF ATTACHMENT UNTIL AN ACTION IS BROUGHT
AND THE RELATION OF PLAINTIFF AND DEFENDANT IS ESTABLISHED IN THE
CASE. 

"AN ACTION IS COMMENCED OR BROUGHT, WITHIN THE MEANING OF SECTIONS
192 AND 193, BY THE FILING OF A PETITION AND CAUSING A SUMMONS TO ISSUE
THEREON.  CODE, SEC. 55  ...  " ID., P. 665. 

THE SEIBERT CASE AND THE BACHER CASE THUS SEEM TO BE WHOLLY
CONSISTENT.  AN ORDER OF ATTACHMENT ISSUED PRIOR TO THE FILING OF A
PETITION AND ISSUANCE OF SUMMONS IS VOID; AN ORDER OF ATTACHMENT ISSUED
AFTER FILING OF THE PETITION AND THE ISSUANCE OF SUMMONS BUT PRIOR TO
THE COMMENCEMENT OF SERVICE BY PUBLICATION IS VALID, THOUGH PERSONAL
SERVICE IS NOT HAD. 

IN VIEW OF THESE OHIO AUTHORITIES, WE CONCLUDE THAT THE ATTACHMENTS
OR GARNISHMENTS SECURED IN THE STATE COURT WERE NOT PREMATURE OR VOID
BECAUSE OBTAINED PRIOR TO PERSONAL SERVICE OR BEFORE COMMENCEMENT OF
SERVICE BY PUBLICATION.  SEE ALSO, ST. JOHN V. PARSONS, 54 OHIO APP.
420; 7 N.E.2D 1013.  THOSE LIENS, HAVING BEEN OBTAINED IN THE STATE
COURT PRIOR TO REMOVAL, ARE PRESERVED INTACT AFTER REMOVAL.  SEC. 646
OF THE REVISED STATUTES (28 U.S.C. SEC. 79).  FN5 

THIRD.  THIS BRINGS US TO THE MAIN ISSUE IN THE CASE - WHETHER A
FEDERAL DISTRICT COURT HAS THE POWER TO ISSUE AN ORDER OF ATTACHMENT OR
GARNISHMENT IN A REMOVED CAUSE IF JURISDICTION IN REM HAS BEEN OBTAINED
PRIOR TO REMOVAL.  THE CIRCUIT COURT OF APPEALS RELIED UPON THE RULE
LAID DOWN IN BIG VEIN COAL CO. V. READ, 229 U.S. 31, THAT AN ATTACHMENT
MAY NOT ISSUE IN A FEDERAL DISTRICT COURT WHERE NO PERSONAL SERVICE HAS
BEEN HAD UPON DEFENDANT OR WHERE DEFENDANT HAS MADE NO PERSONAL
APPEARANCE.  ONE OF THE EARLIEST ANTECEDENTS OF THE BIG VEIN COAL CO.
CASE, SUPRA, WAS TOLAND V. SPRAGUE, 12 PET. 300.  IN THAT CASE A
CITIZEN OF PENNSYLVANIA BROUGHT SUIT IN THE CIRCUIT COURT OF THE UNITED
STATES FOR THE DISTRICT OF PENNSYLVANIA AGAINST A CITIZEN OF
MASSACHUSETTS WHO WAS DOMICILED ABROAD.  NO PERSONAL SERVICE WAS HAD,
BUT AN ATTACHMENT WAS LEVIED UPON DEFENDANT'S PROPERTY IN
PENNSYLVANIA.  SEC. 739 OF THE REVISED STATUTES THEN PROVIDED THAT NO
CIVIL SUIT SHOULD BE BROUGHT IN EITHER THE CIRCUIT OR DISTRICT COURT
AGAINST ANY INHABITANT OF THE UNITED STATES BY ANY ORIGINAL PROCESS IN
ANY OTHER DISTRICT THAN THAT WHEREOF HE WAS AN INHABITANT OR IN WHICH
HE WAS FOUND AT THE TIME OF THE SERVING OF THE WRIT.  THIS COURT BY A
DIVIDED VOTE CONCLUDED THAT AN ATTACHMENT COULD NOT BE ISSUED EXCEPT AS
A PART OF, OR TOGETHER WITH, PROCESS SERVED UPON DEFENDANT PERSONALLY. 
AND IN EX PARTE RAILWAY CO., 103 U.S. 794, THIS COURT CONCLUDED THAT
SINCE THE DEFENDANT WAS AN INHABITANT OF A STATE OUTSIDE THE
JURISDICTION OF THE FEDERAL COURT AND WAS NOT FOUND OR SERVED WITH
PROCESS IN THAT JURISDICTION, NO ATTACHMENT COULD ISSUE FROM THAT COURT
AGAINST HIS PROPERTY.  IT WAS ON THE BASIS OF THOSE TWO PRECEDENTS THAT
THIS COURT LATER MADE ITS DECISION IN BIG VEIN COAL CO. V. READ, SUPRA.
IN THAT CASE, PLAINTIFF INSTITUTED SUIT IN THE FEDERAL COURT.  A
SUMMONS WAS ISSUED AND RETURNED NOT FOUND.  THEREAFTER AN ORDER OF
ATTACHMENT WAS ISSUED.  IT WAS HELD THAT UNLESS JURISDICTION IN
PERSONAM IS OBTAINED OVER THE DEFENDANT, HIS ESTATE MAY NOT BE ATTACHED
IN THE FEDERAL COURT, AN ATTACHMENT BEING BUT "AN INCIDENT TO A SUIT"
AND NOT A MEANS OF ACQUIRING JURISDICTION.  ID., P. 38.  THIS
CONCLUSION WAS REACHED IN SPITE OF THE FACT THAT SEC. 739 HAD BEEN
CHANGED SINCE EX PARTE RAILWAY CO., SUPRA, BY ADDITION OF A DIVERSITY
OF CITIZENSHIP CLAUSE PERMITTING SUIT "IN THE DISTRICT OF THE RESIDENCE
OF EITHER THE DEFENDANT OR PLAINTIFF," AND IN SPITE OF SEC. 915 OF THE
REVISED STATUTES (28 U.S.C. SEC. 726), DISCUSSED HEREAFTER. 
NEVERTHELESS, THIS COURT HELD THAT SINCE CONGRESS HAD NOT EXPLICITLY
PROVIDED FOR SERVICE BY PUBLICATION IN SUCH CASES, ATTACHMENT COULD BE
OBTAINED ONLY IN CASES WHERE SERVICE WAS ADEQUATE FOR A JUDGMENT IN
PERSONAM. 

THE ARGUMENT FOR EXTENSION OR APPLICATION OF THE RULE FOLLOWED FROM
TOLAND V. SPRAGUE TO BIG VEIN COAL CO. V. READ, SUPRA, TO CASES SUCH AS
THE INSTANT ONE LOSES ITS PERSUASIVENESS.  INGRAINED IN THOSE DECISIONS
IS THE FEELING THAT IT WOULD BE UNJUST FOR A PERSON TO HAVE HIS RIGHTS
PASSED UPON IN THE ABSENCE OF THE NOTICE AFFORDED BY PERSONAL SERVICE,
SO THAT HE MIGHT APPEAR AND DEFEND HIMSELF.  THAT PHILOSOPHY WAS
PERHAPS BEST EXPRESSED BY MR. JUSTICE MILLER SITTING IN CIRCUIT IN
NAZORO V. CRAGIN, 3 DILL.  474, 476, WHERE HE SAID, IN 1873, THAT A
CONTRARY DOCTRINE WOULD "COMPEL CITIZENS OF THE PACIFIC COAST TO GO TO
NEW YORK TO DEFEND THEIR PROPERTY WHICH HAPPENED TO BE THERE AND WOULD
GIVE THE GREAT CENTRAL CITIES VAST POWER."  BUT THAT VIEWPOINT HAD NOT
BEEN EXPRESSED BY THE CONGRESS IN SEC. 646.  THAT SECTION GAVE VALIDITY
IN THE FEDERAL COURT TO ATTACHMENTS OBTAINED IN THE STATE COURT PRIOR
TO REMOVAL, BY ITS PROVISION THAT ANY ATTACHMENT IN THE STATE COURT
SUIT "SHALL HOLD THE GOODS OR ESTATE SO ATTACHED" TO ANSWER THE FINAL
JUDGMENT OR DECREE.  AND THIS COURT HAS SOLICITOUSLY PROTECTED
ATTACHMENTS OBTAINED PRIOR TO REMOVAL, EVEN THOUGH JURISDICTION IN REM
HAD NOT BEEN PERFECTED IN THE STATE COURT BY SERVICE BY PUBLICATION. 
CLARK V. WELLS, 203 U.S. 164.  SO TO A CONSIDERABLE DEGREE, THIS COURT
IN PURSUANCE OF THE POLICY OF THE CONGRESS AS EXPRESSED IN SEC. 646,
HAS NOT ADHERED RIGOROUSLY TO THE PHILOSOPHY UNDERLYING THE ANTECEDENTS
OF THE BIG VEIN COAL COMPANY CASE.  FOR MOST ASSUREDLY A DEFENDANT
WHOSE PROPERTY IS ATTACHED IN A STATE COURT PRIOR TO REMOVAL MAY NOT
HAVE BEEN GIVEN NOTICE OF THE KIND WHICH PERSONAL SERVICE WOULD
PROVIDE, SINCE THE STATE PROCEDURE AS IN THIS CASE COMMONLY PERMITS
ATTACHMENT OR GARNISHMENT WHERE ONLY SERVICE BY PUBLICATION CAN BE
MADE. 

BUT WE NEED NOT RELY MERELY ON INFERENCES DRAWN FROM STATUTORY
CONSTRUCTION, SINCE THE CONGRESS HAS PROVIDED PLAINTIFFS IN FEDERAL
COURTS WITH PROCEDURAL REMEDIES AVAILABLE IN STATE COURTS.  SEC. 915 OF
THE REVISED STATUTES PROVIDES: 

"IN COMMON-LAW CAUSES IN THE DISTRICT COURTS THE PLAINTIFF SHALL BE
ENTITLED TO SIMILAR REMEDIES, BY ATTACHMENT OR OTHER PROCESS, AGAINST
THE PROPERTY OF THE DEFENDANT, WHICH WERE, ON JUNE 1, 1872, PROVIDED BY
THE LAWS OF THE STATE IN WHICH SUCH COURT IS HELD FOR THE COURTS
THEREOF; AND SUCH DISTRICT COURTS MAY, FROM TIME TO TIME, BY GENERAL
RULES, ADOPT SUCH STATE LAWS AS MAY BE IN FORCE IN THE STATES WHERE
THEY ARE HELD IN RELATION TO ATTACHMENTS AND OTHER PROCESS.  SIMILAR
PRELIMINARY AFFIDAVITS OR PROOFS, AND SIMILAR SECURITY, AS REQUIRED BY
SUCH STATE LAWS, SHALL BE FIRST FURNISHED BY THE PARTY SEEKING SUCH
ATTACHMENT OR OTHER REMEDY." 

THIS SECTION WHEN READ WITH SEC. 646, INDICATES TO US THAT WHERE
JURISDICTION IN REM HAS BEEN ACQUIRED PRIOR TO REMOVAL, PLAINTIFF MAY
OBTAIN IN THE FEDERAL COURT AFTER REMOVAL SUCH ORDERS OF ATTACHMENT OR
GARNISHMENT AS WOULD HAVE BEEN AVAILABLE TO HIM HAD HE BEEN PERMITTED
TO REMAIN IN THE STATE COURT.  SUCH INTERPRETATION MERELY MAKES IT
POSSIBLE FOR A LIEN OBTAINED IN A STATE COURT PRIOR TO REMOVAL TO BE
EXTENDED BY THE FEDERAL COURT TO OTHER PROPERTY OF THE SAME DEFENDANT. 
IT INTRODUCES NO NEW ELEMENT IN THE STATUTORY SCHEME FOR, AS WE HAVE
SAID, THE LIEN WHICH SEC. 646 PROTECTS MAY OFTEN HAVE BEEN OBTAINED
WITHOUT PERSONAL SERVICE.  THE POLICY WHICH RECOGNIZES THE VALIDITY OF
A LIEN PRESERVED BY VIRTUE OF SEC. 646, THOUGH PERSONAL SERVICE IS
LACKING, PERMITS EXTENSION OF THAT LIEN BY A FEDERAL DISTRICT COURT
UNDER LIKE CIRCUMSTANCES TO OTHER PROPERTY OF THE SAME DEFENDANT BY
REASON OF SEC. 915. 

THIS HOLDING CAN BE BROUGHT WITHIN THE RULE OF THE BIG VEIN COAL
COMPANY CASE, SUPRA, IF THAT DECISION IS NARROWLY LIMITED.  FOR IN ONE
SENSE IT CAN BE SAID THAT ATTACHMENT OR GARNISHMENT IS HERE USED ONLY
AS AN "AUXILIARY REMEDY."  ID., P. 37.  THE GARNISHMENT EFFECTED UNDER
THE AFFIDAVIT OF FEBRUARY 17, 1936, IF VALID UNDER OHIO LAW, WOULD
MERELY EXTEND THE PROCEEDINGS IN REM TO REACH OTHER PROPERTY OF THE
SAME DEFENDANT.  ACCORDINGLY, IF THAT EXTENSION IS PERMISSIBLE UNDER
SEC. 915, IT IS NOT DEFECTIVE MERELY BECAUSE JURISDICTION IN PERSONAM
IS ABSENT.  WHETHER OR NOT SUCH EXTENSION IS PERMISSIBLE IS A MATTER OF
STATE LAW ON WHICH WE DO NOT PASS.  SINCE THE CASE WILL BE REMANDED,
THAT QUESTION AND OTHER QUESTIONS RAISED BY THE RESPONDENT CAN BE MORE
APPROPRIATELY DISPOSED OF BY THE DISTRICT COURT. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED, AND THE
CASE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  JUDGMENT REVERSED. 

FN1  PARIS E. SINGER WAS ALSO NAMED A DEFENDANT IN THE ORIGINAL
PETITION BUT DIED PENDING THE ACTION.  SINCE SUBSEQUENT PROCEEDINGS
WERE CONTINUED AGAINST RESPONDENT ALONE, THE CAUSE IS TREATED AS IF
DEVON SYNDICATE, LIMITED, WERE THE SOLE DEFENDANT. 

FN2  THERE IS OHIO AUTHORITY FOR THE VIEW THAT SEC. 11532 OF THE OHIO
GENERAL CODE UNDER WHICH THE NOTARY'S DISQUALIFICATION IS ASSERTED WAS
INTENDED ONLY TO DEFINE AND REGULATE THE TAKING OF AFFIDAVITS TO BE
USED AS TESTIMONY IN A JUDICIAL PROCEEDING.  CITY COMMISSION OF
GALLIPOLIS V. STATE, 36 OH. APP. 258.  ON THE OTHER HAND, LEAVITT &
MILROY CO. V. ROSENBERG BROS. & CO., 83 OH. ST. 230; 93 N.E. 904,
SQUARELY HELD THAT AN ATTACHMENT WAS DEFECTIVE BECAUSE THE AFFIDAVIT
WAS MADE BEFORE A NOTARY WHO WAS THE ATTORNEY FOR THE PLAINTIFF IN
VIOLATION OF SEC. 11532 - THEN SEC. 5271 REV. STAT. AND THOUGH THAT
CASE, SO FAR AS APPEARS, HAS NEVER BEEN OVERRULED, ITS HOLDING AND SEC.
11532 WERE NEVERTHELESS BEFORE THE COURT IN EVANS V. LAWYER, 123 OH.
ST. 62; 173 N.E. 735.  THERE THE COURT REFERRED TO CERTAIN SECTIONS OF
THE GENERAL CODE (INCLUDING SEC. 11532) WHICH RELATE TO EXECUTION OF
AFFIDAVITS AND SAID "THE SECTIONS OF THE CODE REFERRED TO RELATE TO THE
MODE OF TAKING TESTIMONY, AND ARE FOUND UNDER PART THIRD, TITLE IV,
DIVISION III, RELATING TO PROCEDURE IN COMMON PLEAS COURT, IN CHAPTER 3
IN REGARD TO EVIDENCE.  WE THINK THESE SECTIONS OF THE CODE RELATE TO
AFFIDAVITS TO BE USED IN THE SENSE OF EVIDENCE."  ID., P. 66.  THOUGH
WE ARE NOT JUSTIFIED ON THESE AUTHORITIES IN CONCLUDING THAT THE
PROHIBITIONS CONTAINED IN SEC. 11532 ARE INAPPLICABLE TO NOTARIES
BEFORE WHOM AFFIDAVITS IN ATTACHMENT AND GARNISHMENT ARE TAKEN,
NEVERTHELESS THEY LEND SUPPORT TO THE VIEW THAT IN CONSIDERING WHETHER
OR NOT A NOTARY IS "OTHERWISE INTERESTED" IN THE EVENT OF THE ACTION
WITHIN THE MEANING OF THE SECTION, IT IS APPROPRIATE TO GIVE SOME
WEIGHT TO THE FUNCTION WHICH THE AFFIDAVIT IN QUESTION IS TO PERFORM,
IN THE ABSENCE OF A CONTRARY RULING BY THE OHIO COURTS. 

FN3  ANOTHER REASON URGED BY RESPONDENT FOR THE INVALIDITY OF THE
AFFIDAVITS IN QUESTION IS THAT THE NOTARY WAS DISQUALIFIED BY SEC. 121
OF THE OHIO GENERAL CODE WHICH PROVIDES:  "NO BANKER, BROKER, CASHIER,
DIRECTOR, TELLER, OR CLERK OF A BANK, BANKER OR BROKER, OR OTHER PERSON
HOLDING AN OFFICIAL RELATION TO A BANK, BANKER, OR BROKER, SHALL BE
COMPETENT TO ACT AS NOTARY PUBLIC IN ANY MATTER IN WHICH SUCH BANK,
BANKER, OR BROKER IS INTERESTED."  RESPONDENT CLAIMS THAT THE
CORPORATION OF WHICH PETITIONER WAS AN OFFICER AND BY WHICH THE NOTARY
WAS EMPLOYED, AS WELL AS THE PREDECESSOR PARTNERSHIP, WAS A MUNICIPAL
BOND BROKER; THAT PETITIONER, BEING AN OFFICER OF THE CORPORATION, WAS
HIMSELF A BROKER; AND THAT THEREFORE THE NOTARY WAS A "CLERK OF" OR
"OTHER PERSON HOLDING AN OFFICIAL RELATION TO" A "BROKER."  SUFFICE IT
TO NOTE (1) THAT THE NOTARY WAS NOT IN THE EMPLOY OF PETITIONER; AND
(2) THAT NEITHER THE CORPORATION NOR ITS PREDECESSOR PARTNERSHIP
APPEARS TO BE "INTERESTED" IN THE ACTION.  AS ALLEGED, THE ACTION SEEMS
TO BE PERSONAL TO PETITIONER. 

FN4  IT SHOULD ALSO BE NOTED THAT SEC. 11230(CIVIL CODE, SEC. 20) WAS
SUBSTANTIALLY THE SAME THEN AS NOW.  THOUGH THAT SECTION PROVIDED THAT
"WITHIN THE MEANING OF THIS SECTION" AN ACTION WHERE SERVICE BY
PUBLICATION WAS PROPER SHOULD "BE DEEMED COMMENCED AT THE DATE OF THE
FIRST PUBLICATION," THE COURT DETERMINED THE DATE OF COMMENCEMENT BY
SEC. 11279 WITHOUT MENTIONING SEC. 11230. 

FN5  SEC. 646 PROVIDES:  "WHEN ANY SUIT SHALL BE REMOVED FROM A STATE
COURT TO A DISTRICT COURT OF THE UNITED STATES, ANY ATTACHMENT OR
SEQUESTRATION OF THE GOODS OR ESTATE OF THE DEFENDANT HAD IN SUCH SUIT
IN THE STATE COURT SHALL HOLD THE GOODS OR ESTATE SO ATTACHED OR
SEQUESTERED TO ANSWER THE FINAL JUDGMENT OR DECREE IN THE SAME MANNER
AS BY LAW THEY WOULD HAVE BEEN HELD TO ANSWER FINAL JUDGMENT OR DECREE
HAD IT BEEN RENDERED BY THE COURT IN WHICH SAID SUIT WAS COMMENCED. 
ALL BONDS, UNDERTAKINGS, OR SECURITY GIVEN BY EITHER PARTY IN SUCH SUIT
PRIOR TO ITS REMOVAL SHALL REMAIN VALID AND EFFECTUAL NOTWITHSTANDING
SAID REMOVAL; AND ALL INJUNCTIONS, ORDERS, AND OTHER PROCEEDINGS HAD IN
SUCH SUIT PRIOR TO ITS REMOVAL SHALL REMAIN IN FULL FORCE AND EFFECT
UNTIL DISSOLVED OR MODIFIED BY THE COURT TO WHICH SUCH SUIT SHALL BE
REMOVED." 
..END :





JAMESON & CO. V. MORGENTHAU, 307 U.S. 171 


NO. 717.  ARGUED MAY 1, 1939.  - DECIDED MAY 15, 1939.  - 25 F.SUPP. 
771, DECREE VACATED. 


1.  SECTION 3 OF THE ACT OF AUGUST 24, 1937, PROVIDING FOR A COURT OF
THREE JUDGES AND A DIRECT APPEAL TO THIS COURT, IS NOT APPLICABLE
UNLESS THE QUESTIONS RAISED AS TO THE CONSTITUTIONAL VALIDITY OF AN ACT
OF CONGRESS ARE SUBSTANTIAL.  P. 172. 

2.  THERE IS NO SUBSTANCE IN THE CONTENTION THAT THE TWENTY-FIRST
AMENDMENT GIVES TO THE STATES COMPLETE AND EXCLUSIVE CONTROL OVER
COMMERCE IN INTOXICATING LIQUORS, UNLIMITED BY THE COMMERCE CLAUSE, AND
HENCE THAT CONGRESS HAS NO LONGER AUTHORITY TO CONTROL THE IMPORTATION
OF THESE COMMODITIES INTO THE UNITED STATES.  P. 172. 

3.  A SUIT CHALLENGING THE VALIDITY OF REGULATIONS AND ADMINISTRATIVE
ACTION UNDER THE FEDERAL ALCOHOL ADMINISTRATION ACT, BUT RAISING NO
SUBSTANTIAL QUESTION OF CONSTITUTIONAL VALIDITY AS TO THE ACT ITSELF,
IS NOT WITHIN SEC. 3 OF THE ACT OF AUGUST 24, 1937, PROVIDING FOR A
THREE-JUDGE DISTRICT COURT, AND DIRECT APPEAL TO THIS COURT, IN CASES
OF ATTACK UPON AN "ACT OF CONGRESS" UPON THE GROUND THAT "SUCH ACT OR
ANY PART THEREOF IS REPUGNANT TO THE CONSTITUTION OF THE UNITED
STATES."  P. 173. 

4.  LACKING JURISDICTION TO REVIEW THE MERITS ON AN APPEAL MISTAKENLY
TAKEN UNDER SEC. 3 OF THE ACT OF AUGUST 24, 1937, THIS COURT VACATES
THE DECREE BELOW AND REMANDS THE CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS TO BE TAKEN INDEPENDENTLY OF THAT SECTION.  P. 174. 

WILLIAM JAMESON & CO. V. MORGENTHAU, SECRETARY OF THE TREASURY. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT DENYING AN APPLICATION FOR
A PRELIMINARY INJUNCTION AND DISMISSING THE BILL IN A SUIT TO ENJOIN
ENFORCEMENT OF PROVISIONS OF THE ALCOHOL ADMINISTRATION ACT AND OF
REGULATIONS THEREUNDER. 

PER CURIAM. 

APPELLANT, AN IMPORTER AND DISTRIBUTOR OF ALCOHOLIC BEVERAGES, HAVING
BEEN DENIED THE RIGHT TO IMPORT ITS PRODUCT INTO THE UNITED STATES
UNDER THE LABEL OF "BLENDED SCOTCH WHISKY," UPON THE GROUND THAT IT WAS
IMPROPERLY LABELED, BROUGHT THIS SUIT AGAINST THE SECRETARY OF THE
TREASURY AND OTHER OFFICIALS TO ENJOIN THEM FROM REFUSING TO RELEASE
THE PRODUCT FROM CUSTOMS CUSTODY UPON PAYMENT OF THE REQUIRED CUSTOMS
DUTIES.  APPELLANT ALSO ASKED FOR A DECLARATORY JUDGMENT THAT THE
FEDERAL ALCOHOL ADMINISTRATION ACT, 49 STAT. 977, 1965, IS
UNCONSTITUTIONAL AND VOID AND THAT REGULATIONS NO. 5 PROMULGATED
THEREUNDER, AND PARTICULARLY SECS. 21(K), 34(F) AND 46(A) OF THESE
REGULATIONS, ARE UNENFORCEABLE AS AGAINST APPELLANT AND ARE WITHOUT
WARRANT OF STATUTORY AUTHORITY. 

IN THE VIEW THAT THE QUESTION OF THE VALIDITY OF AN ACT OF CONGRESS
WAS INVOLVED AND THAT THE SUIT WAS WITHIN THE PURVIEW OF SEC. 3 OF THE
ACT OF CONGRESS OF AUGUST 24, 1937, 50 STAT. 751, THE CASE WAS HEARD
BELOW BY A COURT OF THREE JUDGES, WHICH DENIED AN APPLICATION FOR
PRELIMINARY INJUNCTION AND DISMISSED THE COMPLAINT.  25 F.SUPP.  771. 
FROM ITS DECREE A DIRECT APPEAL HAS BEEN TAKEN TO THIS COURT. 

COURT OF THREE JUDGES AND A DIRECT APPEAL TO THIS COURT, IS NOT
APPLICABLE UNLESS THE QUESTIONS RAISED AS TO THE CONSTITUTIONAL
VALIDITY OF AN ACT OF CONGRESS ARE SUBSTANTIAL.  CALIFORNIA WATER
SERVICE CO. V. REDDING, 304 U.S. 252, 254, 255. 

HERE, THE FEDERAL ALCOHOL ADMINISTRATION ACT WAS ATTACKED UPON THE
GROUND THAT THE TWENTY-FIRST AMENDMENT TO THE FEDERAL CONSTITUTION
GIVES TO THE STATES COMPLETE AND EXCLUSIVE CONTROL OVER COMMERCE IN
INTOXICATING LIQUORS, UNLIMITED BY THE COMMERCE CLAUSE, AND HENCE THAT
CONGRESS HAS NO LONGER AUTHORITY TO CONTROL THE IMPORTATION OF THESE
COMMODITIES INTO THE UNITED STATES.  WE SEE NO SUBSTANCE IN THIS
CONTENTION. 

THE OTHER CONTENTIONS OF APPELLANT ASSAILED THE REGULATIONS AND
ADMINISTRATIVE ACTION THEREUNDER RATHER THAN THE ACT OF CONGRESS.  SO
FAR AS THE FEDERAL ALCOHOL ADMINISTRATION ACT ITSELF IS CONCERNED, NO
SUBSTANTIAL QUESTION OF CONSTITUTIONAL VALIDITY WAS RAISED. 

FOR A PROCEDURE ANALOGOUS TO THAT UNDER SEC. 266 OF THE JUDICIAL CODE,
28 U.S.C. 380, CREATES A DISTINCTION WHICH WE THINK IS CONTROLLING. 
WHERE AN INJUNCTION IS SOUGHT TO RESTRAIN THE ENFORCEMENT "OF ANY
STATUTE OF A STATE" OR "OF AN ORDER MADE BY AN ADMINISTRATIVE BOARD OR
COMMISSION ACTING UNDER AND PURSUANT TO THE STATUTES OF SUCH STATE,"
UPON THE GROUND OF UNCONSTITUTIONALITY.  THE PROVISION IN RELATION TO
ADMINISTRATIVE ORDERS WAS ADDED BY AN AMENDMENT TO THE ORIGINAL
BEEN SAID TO BE UNNECESSARY, AS SUCH ORDERS WERE PREVIOUSLY COVERED,
OKLAHOMA GAS CO. V. RUSSELL, 261 U.S. 290, 292, CONGRESS ADOPTED THE
AMENDMENT OUT OF ABUNDANT CAUTION.  BUT WITH THESE PROVISIONS OF SEC.
266 BEFORE IT, CONGRESS IN ENACTING SEC. 3 OF THE ACT OF AUGUST 24,
1937, DID NOT REFER TO "ANY STATUTE" OR TO ADMINISTRATIVE ORDERS, BUT
CONFINED ITS REQUIREMENT TO CASES OF ATTACK UPON AN "ACT OF CONGRESS"
UPON THE GROUND THAT "SUCH ACT OR ANY PART THEREOF IS REPUGNANT TO THE
CONSTITUTION OF THE UNITED STATES."  THIS IS NOT AN APT DESCRIPTION OF
ADMINISTRATIVE REGULATIONS OR ORDERS.  WE MUST REGARD THE CHOICE OF
LANGUAGE AS DELIBERATE AND AS INDICATING A LIMITATION DEEMED TO BE
ADVISABLE.  IT DOES NOT APPEAR TO HAVE BEEN THE INTENTION OF CONGRESS
THAT DIRECT APPEAL SHOULD LIE TO THIS COURT WHEN ADMINISTRATIVE ACTION
AND NOT THE ACT OF CONGRESS IS ASSAILED. 

WHILE WE ARE OF THE OPINION THAT THE COURT IS WITHOUT JURISDICTION TO
REVIEW THE MERITS ON THIS APPEAL, THE COURT DOES HAVE JURISDICTION TO
MAKE SUCH CORRECTIVE ORDER AS MAY BE APPROPRIATE TO THE ENFORCEMENT OF
THE LIMITATIONS WHICH SEC. 3 IMPOSES, AND IN THE CIRCUMSTANCES
DISCLOSED THE APPROPRIATE ACTION IS TO VACATE THE DECREE BELOW AND TO
REMAND THE CAUSE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS TO BE
TAKEN INDEPENDENTLY OF SEC. 3 OF THE ACT OF AUGUST 24, 1937.  SEE GULLY
V. INTERSTATE NATURAL GAS CO., 292 U.S. 16; OKLAHOMA GAS CO. V.
OKLAHOMA PACKING CO., 292 U.S. 386, 392.  DECREE VACATED. 
..END :



UNITED STATES V. MILLER, 307 U.S. 174 


NO. 696.  ARGUED MARCH 30, 1939.  - DECIDED MAY 15, 1939.  - 26 F.SUPP. 
1002, REVERSED. 


THE NATIONAL FIREARMS ACT, AS APPLIED TO ONE INDICTED FOR TRANSPORTING
IN INTERSTATE COMMERCE A 12-GAUGE SHOTGUN WITH A BARREL LESS THAN 18
INCHES LONG, WITHOUT HAVING REGISTERED IT AND WITHOUT HAVING IN HIS
POSSESSION A STAMP-AFFIXED WRITTEN ORDER FOR IT, AS REQUIRED BY THE
ACT, HELD: 

1.  NOT UNCONSTITUTIONAL AS AN INVASION OF THE RESERVED POWERS OF THE
STATES.  CITING SONZINSKY V. UNITED STATES, 300 U.S. 506, AND NARCOTIC
ACT CASES.  P. 177. 

2.  NOT VIOLATIVE OF THE SECOND AMENDMENT OF THE FEDERAL
CONSTITUTION.  P. 178. 

THE COURT CAN NOT TAKE JUDICIAL NOTICE THAT A SHOTGUN HAVING A BARREL
LESS THAN 18 INCHES LONG HAS TODAY ANY REASONABLE RELATION TO THE
PRESERVATION OR EFFICIENCY OF A WELL REGULATED MILITIA; AND THEREFORE
CAN NOT SAY THAT THE SECOND AMENDMENT GUARANTEES TO THE CITIZEN THE
RIGHT TO KEEP AND BEAR SUCH A WEAPON. 

UNITED STATES V. MILLER ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF ARKANSAS. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT SUSTAINING A
DEMURRER TO AN INDICTMENT FOR VIOLATION OF THE NATIONAL FIREARMS ACT. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

AN INDICTMENT IN THE DISTRICT COURT WESTERN DISTRICT ARKANSAS,
CHARGED THAT JACK MILLER AND FRANK LAYTON 

"DID UNLAWFULLY, KNOWINGLY, WILFULLY, AND FELONIOUSLY TRANSPORT IN
INTERSTATE COMMERCE FROM THE TOWN OF CLAREMORE IN THE STATE OF OKLAHOMA
TO THE TOWN OF SILOAM SPRINGS IN THE STATE OF ARKANSAS A CERTAIN
FIREARM, TO-WIT, A DOUBLE BARREL 12-GAUGE STEVENS SHOTGUN HAVING A
BARREL LESS THAN 18 INCHES IN LENGTH, BEARING IDENTIFICATION NUMBER
76230, SAID DEFENDANTS, AT THE TIME OF SO TRANSPORTING SAID FIREARM IN
INTERSTATE COMMERCE AS AFORESAID, NOT HAVING REGISTERED SAID FIREARM AS
REQUIRED BY SECTION 1132D OF TITLE 26, U.S.C. (ACT OF JUNE 26, 1934, C.
737, SEC. 4(SEC.  5), 48 STAT. 1237), AND NOT HAVING IN THEIR
POSSESSION A STAMP-AFFIXED WRITTEN ORDER FOR SAID FIREARM AS PROVIDED
BY SECTION 1132C, TITLE 26, U.S.C. (JUNE 26, 1934, C. 737, SEC. 4, 48
STAT. 1237) AND THE REGULATIONS ISSUED UNDER AUTHORITY OF THE SAID ACT
OF CONGRESS KNOWN AS THE 'NATIONAL FIREARMS ACT' APPROVED JUNE 26,
1934, CONTRARY TO THE FORM OF THE STATUTE IN SUCH CASE MADE AND
PROVIDED, AND AGAINST THE PEACE AND DIGNITY OF THE UNITED STATES." 
FN1 

A DULY INTERPOSED DEMURRER ALLEGED:  THE NATIONAL FIREARMS ACT IS NOT
A REVENUE MEASURE BUT AN ATTEMPT TO USURP POLICE POWER RESERVED TO THE
STATES, AND IS THEREFORE UNCONSTITUTIONAL.  ALSO, IT OFFENDS THE
INHIBITION OF THE SECOND AMENDMENT TO THE CONSTITUTION - "A WELL
REGULATED MILITIA, BEING NECESSARY TO THE SECURITY OF A FREE STATE, THE
RIGHT OF PEOPLE TO KEEP AND BEAR ARMS, SHALL NOT BE INFRINGED." 

THE DISTRICT COURT HELD THAT SECTION ELEVEN OF THE ACT VIOLATES THE
SECOND AMENDMENT.  IT ACCORDINGLY SUSTAINED THE DEMURRER AND QUASHED
THE INDICTMENT. 

THE CAUSE IS HERE BY DIRECT APPEAL. 

CONSIDERING SONZINSKY V. UNITED STATES (1937), 300 U.S. 506, 513, AND
WHAT WAS RULED IN SUNDRY CAUSES ARISING  UNDER THE HARRISON NARCOTIC
ACT  FN2  - UNITED STATES V. JIN FUEY MOY (1916), 241 U.S. 394; UNITED
STATES V. DOREMUS (1919), 249 U.S. 86, 94; LINDER V. UNITED STATES
(1925), 268 U.S. 5; ALSTON V. UNITED STATES (1927), 274 U.S. 289; NIGRO
V. UNITED STATES (1928), 276 U.S. 332 - THE OBJECTION THAT THE ACT
USURPS POLICE POWER RESERVED TO THE STATES IS PLAINLY UNTENABLE. 

IN THE ABSENCE OF ANY EVIDENCE TENDING TO SHOW THAT POSSESSION OR USE
OF A "SHOTGUN HAVING A BARREL OF LESS THAN EIGHTEEN INCHES IN LENGTH"
AT THIS TIME HAS SOME REASONABLE RELATIONSHIP TO THE PRESERVATION OR
EFFICIENCY OF A WELL REGULATED MILITIA, WE CANNOT SAY THAT THE SECOND
AMENDMENT GUARANTEES THE RIGHT TO KEEP AND BEAR SUCH AN INSTRUMENT. 
CERTAINLY IT IS NOT WITHIN JUDICIAL NOTICE THAT THIS WEAPON IS ANY PART
OF THE ORDINARY MILITARY EQUIPMENT OR THAT ITS USE COULD CONTRIBUTE TO
THE COMMON DEFENSE.  AYMETTE V. STATE, 2 HUMPHREYS (TENN.) 154, 158. 

THE CONSTITUTION AS ORIGINALLY ADOPTED GRANTED TO THE CONGRESS POWER
"TO PROVIDE FOR CALLING FORTH THE MILITIA TO EXECUTE THE LAWS OF THE
UNION, SUPPRESS INSURRECTIONS AND REPEL INVASIONS; TO PROVIDE FOR
ORGANIZING, ARMING, AND DISCIPLINING, THE MILITIA, AND FOR GOVERNING
SUCH PART OF THEM AS MAY BE EMPLOYED IN THE SERVICE OF THE UNITED
STATES, RESERVING TO THE STATES RESPECTIVELY, THE APPOINTMENT OF THE
OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE
DISCIPLINE PRESCRIBED BY CONGRESS."  WITH OBVIOUS PURPOSE TO ASSURE THE
CONTINUATION AND RENDER POSSIBLE THE EFFECTIVENESS OF SUCH FORCES THE
DECLARATION AND GUARANTEE OF THE SECOND AMENDMENT WERE MADE.  IT MUST
BE INTERPRETED AND APPLIED WITH THAT END IN VIEW. 

THE MILITIA WHICH THE STATES WERE EXPECTED TO MAINTAIN AND TRAIN IS
SET IN CONTRAST WITH TROOPS WHICH THEY WERE FORBIDDEN TO KEEP WITHOUT
THE CONSENT OF CONGRESS.  THE SENTIMENT OF THE TIME STRONGLY DISFAVORED
STANDING ARMIES; THE COMMON VIEW WAS THAT ADEQUATE DEFENSE OF COUNTRY
AND LAWS COULD BE SECURED THROUGH THE MILITIA - CIVILIANS PRIMARILY,
SOLDIERS ON OCCASION. 

THE SIGNIFICATION ATTRIBUTED TO THE TERM MILITIA APPEARS FROM THE
DEBATES IN THE CONVENTION, THE HISTORY AND LEGISLATION OF COLONIES AND
STATES, AND THE WRITINGS OF APPROVED COMMENTATORS.  THESE SHOW PLAINLY
ENOUGH THAT THE MILITIA COMPRISED ALL MALES PHYSICALLY CAPABLE OF
ACTING IN CONCERT FOR THE COMMON DEFENSE.  "A BODY OF CITIZENS ENROLLED
FOR MILITARY DISCIPLINE."  AND FURTHER, THAT ORDINARILY WHEN CALLED FOR
SERVICE THESE MEN WERE EXPECTED TO APPEAR BEARING ARMS SUPPLIED BY
THEMSELVES AND OF THE KIND IN COMMON USE AT THE TIME. 

BLACKSTONE'S COMMENTARIES, VOL. 2, CH. 13, P. 409 POINTS OUT "THAT
KING ALFRED FIRST SETTLED A NATIONAL MILITIA IN THIS KINGDOM," AND
TRACES THE SUBSEQUENT DEVELOPMENT AND USE OF SUCH FORCES. 

ADAM SMITH'S WEALTH OF NATIONS, BOOK V, CH. 1, CONTAINS AN EXTENDED
ACCOUNT OF THE MILITIA.  IT IS THERE SAID:  "MEN OF REPUBLICAN
PRINCIPLES HAVE BEEN JEALOUS OF A STANDING ARMY AS DANGEROUS TO
LIBERTY."  "IN A MILITIA, THE CHARACTER OF THE LABOURER, ARTIFICER, OR
TRADESMAN, PREDOMINATES OVER THAT OF THE SOLDIER:  IN A STANDING ARMY,
THAT OF THE SOLDIER PREDOMINATES OVER EVERY OTHER CHARACTER; AND IN
THIS DISTINCTION SEEMS TO CONSIST THE ESSENTIAL DIFFERENCE BETWEEN
THOSE TWO DIFFERENT SPECIES OF MILITARY FORCE." 

"THE AMERICAN COLONIES IN THE 17TH CENTURY," OSGOOD, VOL. 1, CH.
XIII, AFFIRMS IN REFERENCE TO THE EARLY SYSTEM OF DEFENSE IN NEW
ENGLAND - 

"IN ALL THE COLONIES, AS IN ENGLAND, THE MILITIA SYSTEM WAS BASED ON
THE PRINCIPLE OF THE ASSIZE OF ARMS.  THIS IMPLIED THE GENERAL
OBLIGATION OF ALL ADULT MALE INHABITANTS TO POSSESS ARMS, AND, WITH
CERTAIN EXCEPTIONS, TO COOPERATE IN THE WORK OF DEFENCE."  "THE
POSSESSION OF ARMS ALSO IMPLIED THE POSSESSION OF AMMUNITION, AND THE
AUTHORITIES PAID QUITE AS MUCH ATTENTION TO THE LATTER AS TO THE
FORMER."  "A YEAR LATER (1632) IT WAS ORDERED THAT ANY SINGLE MAN WHO
HAD NOT FURNISHED HIMSELF WITH ARMS MIGHT BE PUT OUT TO SERVICE, AND
THIS BECAME A PERMANENT PART OF THE LEGISLATION OF THE COLONY
(MASSACHUSETTS)." 

ALSO "CLAUSES INTENDED TO INSURE THE POSSESSION OF ARMS AND
AMMUNITION BY ALL WHO WERE SUBJECT TO MILITARY SERVICE APPEAR IN ALL
THE IMPORTANT ENACTMENTS CONCERNING MILITARY AFFAIRS.  FINES WERE THE
PENALTY FOR DELINQUENCY, WHETHER OF TOWNS OR INDIVIDUALS.  ACCORDING TO
THE USAGE OF THE TIMES, THE INFANTRY OF MASSACHUSETTS CONSISTED OF
PIKEMEN AND MUSKETEERS.  THE LAW, AS ENACTED IN 1649 AND THEREAFTER,
PROVIDED THAT EACH OF THE FORMER SHOULD BE ARMED WITH A PIKE, CORSELET,
HEAD-PIECE, SWORD, AND KNAPSACK.  THE MUSKETEER SHOULD CARRY A 'GOOD
FIXED MUSKET,' NOT UNDER BASTARD MUSKET BORE, NOT LESS THAN THREE FEET,
NINE INCHES, NOR MORE THAN FOUR FEET THREE INCHES IN LENGTH, A PRIMING
WIRE, SCOURER, AND MOULD, A SWORD, REST, BANDOLEERS, ONE POUND OF
POWDER, TWENTY BULLETS, AND TWO FATHOMS OF MATCH.  THE LAW ALSO
REQUIRED THAT TWO-THIRDS OF EACH COMPANY SHOULD BE MUSKETEERS." 

THE GENERAL COURT OF MASSACHUSETTS, JANUARY SESSION 1784, PROVIDED
FOR THE ORGANIZATION AND GOVERNMENT OF THE MILITIA.  IT DIRECTED THAT
THE TRAIN BAND SHOULD "CONTAIN ALL ABLE BODIED MEN, FROM SIXTEEN TO
FORTY YEARS OF AGE, AND THE ALARM LIST, ALL OTHER MEN UNDER SIXTY YEARS
OF AGE, ..."  ALSO, "THAT EVERY NON-COMMISSIONED OFFICER AND PRIVATE
SOLDIER OF THE SAID MILITIA NOT UNDER THE CONTROUL OF PARENTS, MASTERS
OR GUARDIANS, AND BEING OF SUFFICIENT ABILITY THEREFOR IN THE JUDGMENT
OF THE SELECTMEN OF THE TOWN IN WHICH HE SHALL DWELL, SHALL EQUIP
HIMSELF, AND BE CONSTANTLY PROVIDED WITH A GOOD FIRE ARM," &C. 

BY AN ACT PASSED APRIL 4, 1786 THE NEW YORK LEGISLATURE DIRECTED:
"THAT EVERY ABLE-BODIED MALE PERSON, BEING A CITIZEN OF THIS STATE, OR
OF ANY OF THE UNITED STATES, AND RESIDING IN THIS STATE, (EXCEPT SUCH
PERSONS AS ARE HEREINAFTER EXCEPTED) AND WHO ARE OF THE AGE OF SIXTEEN,
AND UNDER THE AGE OF FORTY-FIVE YEARS, SHALL, BY THE CAPTAIN OR
COMMANDING OFFICER OF THE BEAT IN WHICH SUCH CITIZENS SHALL RESIDE,
WITHIN FOUR MONTHS AFTER THE PASSING OF THIS ACT, BE ENROLLED IN THE
COMPANY OF SUCH BEAT.  ...  THAT EVERY CITIZEN SO ENROLLED AND
NOTIFIED, SHALL, WITHIN THREE MONTHS THEREAFTER, PROVIDE HIMSELF, AT
HIS OWN EXPENSE, WITH A GOOD MUSKET OR FIRELOCK, A SUFFICIENT BAYONET
AND BELT, A POUCH WITH A BOX THEREIN TO CONTAIN NOT LESS THAN TWENTY
FOUR CARTRIDGES SUITED TO THE BORE OF HIS MUSKET OR FIRELOCK, EACH
CARTRIDGE CONTAINING A PROPER QUANTITY OF POWDER AND BALL, TWO SPARE
FLINTS, A BLANKET AND KNAPSACK; ..." 

THE GENERAL ASSEMBLY OF VIRGINIA, OCTOBER, 1785, (12 HENING'S
STATUTES) DECLARED, "THE DEFENSE AND SAFETY OF THE COMMONWEALTH DEPEND
UPON HAVING ITS CITIZENS PROPERLY ARMED AND TAUGHT THE KNOWLEDGE OF
MILITARY DUTY." 

IT FURTHER PROVIDED FOR ORGANIZATION AND CONTROL OF THE MILITIA AND
DIRECTED THAT "ALL FREE MALE PERSONS BETWEEN THE AGES OF EIGHTEEN AND
FIFTY YEARS," WITH CERTAIN EXCEPTIONS, "SHALL BE INROLLED OR FORMED
INTO COMPANIES."  "THERE SHALL BE A PRIVATE MUSTER OF EVERY COMPANY
ONCE IN TWO MONTHS." 

ALSO THAT "EVERY OFFICER AND SOLDIER SHALL APPEAR AT HIS RESPECTIVE
MUSTER-FIELD ON THE DAY APPOINTED, BY ELEVEN O'CLOCK IN THE FORENOON,
ARMED, EQUIPPED, AND ACCOUTRED, AS FOLLOWS:  ... EVERY NON-COMMISSIONED
OFFICER AND PRIVATE WITH A GOOD, CLEAN MUSKET CARRYING AN OUNCE BALL,
AND THREE FEET EIGHT INCHES LONG IN THE BARREL, WITH A GOOD BAYONET AND
IRON RAMROD WELL FITTED THERETO, A CARTRIDGE BOX PROPERLY MADE, TO
CONTAIN AND SECURE TWENTY CARTRIDGES FITTED TO HIS MUSKET, A GOOD
KNAPSACK AND CANTEEN, AND MOREOVER, EACH NON-COMMISSIONED OFFICER AND
PRIVATE SHALL HAVE AT EVERY MUSTER ONE POUND OF GOOD POWDER, AND FOUR
POUNDS OF LEAD, INCLUDING TWENTY BLIND CARTRIDGES; AND EACH SERJEANT
SHALL HAVE A PAIR OF MOULDS FIT TO CAST BALLS FOR THEIR RESPECTIVE
COMPANIES, TO BE PURCHASED BY THE COMMANDING OFFICER OUT OF THE MONIES
ARISING ON DELINQUENCIES.  PROVIDED, THAT THE MILITIA OF THE COUNTIES
WESTWARD OF THE BLUE RIDGE, AND THE COUNTIES BELOW ADJOINING THERETO,
SHALL NOT BE OBLIGED TO BE ARMED WITH MUSKETS, BUT MAY HAVE GOOD RIFLES
WITH PROPER ACCOUTREMENTS, IN LIEU THEREOF.  AND EVERY OF THE SAID
OFFICERS, NON-COMMISSIONED OFFICERS, AND PRIVATES, SHALL CONSTANTLY
KEEP THE AFORESAID ARMS, ACCOUTREMENTS, AND AMMUNITION, READY TO BE
PRODUCED WHENEVER CALLED FOR BY HIS COMMANDING OFFICER.  IF ANY PRIVATE
SHALL MAKE IT APPEAR TO THE SATISFACTION OF THE COURT HEREAFTER TO BE
APPOINTED FOR TRYING DELINQUENCIES UNDER THIS ACT THAT HE IS SO POOR
THAT HE CANNOT PURCHASE THE ARMS HEREIN REQUIRED, SUCH COURT SHALL
CAUSE THEM TO BE PURCHASED OUT OF THE MONEY ARISING FROM DELINQUENTS." 

MOST IF NOT ALL OF THE STATES HAVE ADOPTED PROVISIONS TOUCHING THE
RIGHT TO KEEP AND BEAR ARMS.  DIFFERENCES IN THE LANGUAGE EMPLOYED IN
THESE HAVE NATURALLY LED TO SOMEWHAT VARIANT CONCLUSIONS CONCERNING THE
SCOPE OF THE RIGHT GUARANTEED.  BUT NONE OF THEM SEEM TO AFFORD ANY
MATERIAL SUPPORT FOR THE CHALLENGED RULING OF THE COURT BELOW. 

IN THE MARGIN SOME OF THE MORE IMPORTANT OPINIONS AND COMMENTS BY
WRITERS ARE CITED.  FN3 

WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW AND THE
CHALLENGED JUDGMENT MUST BE REVERSED.  THE CAUSE WILL BE REMANDED FOR
FURTHER PROCEEDINGS. 

FN1  ACT OF JUNE 26, 1934, C. 757, 48 STAT. 1236-1240, 26 U.S.C. SEC.
1132. 

THAT FOR THE PURPOSES OF THIS ACT - 

"(A)  THE TERM 'FIREARM' MEANS A SHOTGUN OR RIFLE HAVING A BARREL OF
LESS THAN EIGHTEEN INCHES IN LENGTH, OR ANY OTHER WEAPON, EXCEPT A
PISTOL OR REVOLVER, FROM WHICH A SHOT IS DISCHARGED BY AN EXPLOSIVE IF
SUCH WEAPON IS CAPABLE OF BEING CONCEALED ON THE PERSON, OR A MACHINE
GUN, AND INCLUDES A MUFFLER OR SILENCER FOR ANY FIREARM WHETHER OR NOT
SUCH FIREARM IS INCLUDED WITHIN THE FOREGOING DEFINITION, (THE ACT OF
APRIL 10, 1936, C. 169, 49 STAT. 1192 ADDED THE WORDS) BUT DOES NOT
INCLUDE ANY RIFLE WHICH IS WITHIN THE FOREGOING PROVISIONS SOLELY BY
REASON OF THE LENGTH OF ITS BARREL IF THE CALIBER OF SUCH RIFLE IS .22
OR SMALLER AND IF ITS BARREL IS SIXTEEN INCHES OR MORE IN LENGTH. 

"SEC. 3.  (A)  THERE SHALL BE LEVIED, COLLECTED, AND PAID UPON
FIREARMS TRANSFERRED IN THE CONTINENTAL UNITED STATES A TAX AT THE RATE
OF $200 FOR EACH FIREARM, SUCH TAX TO BE PAID BY THE TRANSFEROR, AND TO
BE REPRESENTED BY APPROPRIATE STAMPS TO BE PROVIDED BY THE
COMMISSIONER, WITH THE APPROVAL OF THE SECRETARY; AND THE STAMPS HEREIN
PROVIDED SHALL BE AFFIXED TO THE ORDER FOR SUCH FIREARM, HEREINAFTER
PROVIDED FOR.  THE TAX IMPOSED BY THIS SECTION SHALL BE IN ADDITION TO
ANY IMPORT DUTY IMPOSED ON SUCH FIREARM. 

"SEC. 4.  (A)  IT SHALL BE UNLAWFUL FOR ANY PERSON TO TRANSFER A
FIREARM EXCEPT IN PURSUANCE OF A WRITTEN ORDER FROM THE PERSON SEEKING
TO OBTAIN SUCH ARTICLE, ON AN APPLICATION FORM ISSUED IN BLANK IN
DUPLICATE FOR THAT PURPOSE BY THE COMMISSIONER.  SUCH ORDER SHALL
IDENTIFY THE APPLICANT BY SUCH MEANS OF IDENTIFICATION AS MAY BE
PRESCRIBED BY REGULATIONS UNDER THIS ACT:  PROVIDED, THAT, IF THE
APPLICANT IS AN INDIVIDUAL, SUCH IDENTIFICATION SHALL INCLUDE
FINGERPRINTS AND A PHOTOGRAPH THEREOF.    "(C)  EVERY PERSON SO
TRANSFERRING A FIREARM SHALL SET FORTH IN EACH COPY OF SUCH ORDER THE
MANUFACTURER'S NUMBER OR OTHER MARK IDENTIFYING SUCH FIREARM, AND SHALL
FORWARD A COPY OF SUCH ORDER TO THE COMMISSIONER.  THE ORIGINAL THEREOF
WITH STAMPS AFFIXED, SHALL BE RETURNED TO THE APPLICANT. 

"(D)  NO PERSON SHALL TRANSFER A FIREARM WHICH HAS PREVIOUSLY BEEN
TRANSFERRED ON OR AFTER THE EFFECTIVE DATE OF THIS ACT, UNLESS SUCH
PERSON, IN ADDITION TO COMPLYING WITH SUBSECTION (C), TRANSFERS
THEREWITH THE STAMP-AFFIXED ORDER PROVIDED FOR IN THIS SECTION FOR EACH
SUCH PRIOR TRANSFER, IN COMPLIANCE WITH SUCH REGULATIONS AS MAY BE
PRESCRIBED UNDER THIS ACT FOR PROOF OF PAYMENT OF ALL TAXES ON SUCH
FIREARMS. 

"SEC. 5.  (A)  WITHIN SIXTY DAYS AFTER THE EFFECTIVE DATE OF THIS ACT
EVERY PERSON POSSESSING A FIREARM SHALL REGISTER, WITH THE COLLECTOR OF
THE DISTRICT IN WHICH HE RESIDES, THE NUMBER OR OTHER MARK IDENTIFYING
SUCH FIREARM, TOGETHER WITH HIS NAME, ADDRESS, PLACE WHERE SUCH FIREARM
IS USUALLY KEPT, AND PLACE OF BUSINESS OR EMPLOYMENT, AND, IF SUCH
PERSON IS OTHER THAN A NATURAL PERSON, THE NAME AND HOME ADDRESS OF AN
EXECUTIVE OFFICER THEREOF:  PROVIDED, THAT NO PERSON SHALL BE REQUIRED
TO REGISTER UNDER THIS SECTION WITH RESPECT TO ANY FIREARM ACQUIRED
AFTER THE EFFECTIVE DATE OF, AND IN CONFORMITY WITH THE PROVISIONS OF,
THIS ACT. 

"SEC. 6.  IT SHALL BE UNLAWFUL FOR ANY PERSON TO RECEIVE OR POSSESS
ANY FIREARM WHICH HAS AT ANY TIME BEEN TRANSFERRED IN VIOLATION OF

"SEC. 11.  IT SHALL BE UNLAWFUL FOR ANY PERSON WHO IS REQUIRED TO
REGISTER AS PROVIDED IN SECTION 5 HEREOF AND WHO SHALL NOT HAVE SO
REGISTERED, OR ANY OTHER PERSON WHO HAS NOT IN HIS POSSESSION A
STAMPAFFIXED ORDER AS PROVIDED IN SECTION 4 HEREOF, TO SHIP, CARRY, OR
DELIVER ANY FIREARM IN INTERSTATE COMMERCE. 

"SEC. 12.  THE COMMISSIONER, WITH THE APPROVAL OF THE SECRETARY,
SHALL PRESCRIBE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY FOR
CARRYING THE PROVISIONS OF THIS ACT INTO EFFECT. 

"SEC. 14.  ANY PERSON WHO VIOLATES OR FAILS TO COMPLY WITH ANY OF THE
REQUIREMENTS OF THIS ACT SHALL, UPON CONVICTION, BE FINED NOT MORE THAN
$2,000 OR BE IMPRISONED FOR NOT MORE THAN FIVE YEARS, OR BOTH, IN THE
DISCRETION OF THE COURT. 

"SEC. 16.  IF ANY PROVISION OF THIS ACT, OR THE APPLICATION THEREOF
TO ANY PERSON OR CIRCUMSTANCE, IS HELD INVALID, THE REMAINDER OF THE
ACT, AND THE APPLICATION OF SUCH PROVISION TO OTHER PERSONS OR
CIRCUMSTANCES, SHALL NOT BE AFFECTED THEREBY. 

"SEC. 18.  THIS ACT MAY BE CITED AS THE 'NATIONAL FIREARMS ACT.'" 

FN2  ACT DECEMBER 17, 1914, C. 1, 38 STAT. 785; FEBRUARY 24, 1919, C.
18, 40 STAT. 1057. 

FN3  CONCERNING THE MILITIA - PRESSER V. ILLINOIS, 116 U.S. 252;
ROBERTSON V. BALDWIN, 165 U.S. 275; FIFE V. STATE, 31 ARK. 455; JEFFERS
V. FAIR, 33 GA. 347; SALINA V. BLAKSLEY, 72 KAN. 230; 83 P. 619; PEOPLE
V. BROWN, 253 MICH. 537; 235 N.W. 245; AYMETTE V. STATE, 2 HUMPHR. 
(TENN.)  154; STATE V. DUKE, 42 TEXAS 455; STATE V. WORKMAN, 35 W. VA.
367; 14 S.E. 9; COOLEY'S CONSTITUTIONAL LIMITATIONS, VOL. 1, P. 729;
STORY ON THE CONSTITUTION, 5TH ED., VOL. 2, P. 646; ENCYCLOPAEDIA OF
THE SOCIAL SCIENCES, VOL. X, P. 471, 474. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CAUSE. 
..END :













UNITED STATES V. MORGAN, 307 U.S. 183 


NO. 221.  ARGUED OCTOBER 20, 21, 1938.  REARGUED APRIL 20, 1939.  -
DECIDED MAY 15, 1939.  - 24 F.SUPP.  214, REVERSED. 


1.  WHERE AN ORDER OF THE SECRETARY OF AGRICULTURE FIXING STOCKYARDS
RATES WAS SET ASIDE FOR PROCEDURAL DEFECTS WITHOUT JUDICIAL
DETERMINATION OF THE REASONABLENESS OF THE RATES FIXED BY THE ORDER,
THE MONEYS REPRESENTING THE DIFFERENCE BETWEEN THE SCHEDULED RATES IN
EFFECT AND THE LOWER RATES OF THE ORDER, WHICH WERE REQUIRED TO BE PAID
INTO THE DISTRICT COURT AS A CONDITION TO THE GRANTING OF AN
INTERLOCUTORY INJUNCTION, SHOULD ON MOTION OF THE DEFENDANTS (THE
UNITED STATES AND THE SECRETARY OF AGRICULTURE) BE RETAINED IN THE
REGISTRY TO AWAIT A FURTHER AND VALID DETERMINATION OF REASONABLE RATES
BY THE SECRETARY IN A PENDING PROCEEDING IN WHICH HE HAD REOPENED ON
HIS OWN MOTION THE PROCEEDINGS UNDER THE PACKERS AND STOCKYARDS ACT,
AND FOR DISPOSITION ACCORDINGLY.  PP. 185, 198. 

2.  THE DOMINANT PURPOSE OF THE PACKERS AND STOCKYARDS ACT IS TO
SECURE TO PATRONS OF THE STOCKYARDS PRESCRIBED STOCKYARD SERVICES AT
JUST AND REASONABLE RATES.  P. 188. 

3.  IN CONSTRUING A STATUTE SETTING UP AN ADMINISTRATIVE AGENCY AND
PROVIDING FOR JUDICIAL REVIEW OF ITS ACTION, COURT AND AGENCY ARE TO BE
REGARDED AS THE MEANS ADOPTED TO ATTAIN THE PRESCRIBED END, AND SO FAR
AS THEIR DUTIES ARE DEFINED BY THE WORDS OF THE STATUTE, THOSE WORDS
SHOULD BE CONSTRUED TO ATTAIN THAT END THROUGH COORDINATED ACTION.  P.
191. 

4.  IN REVIEWING AN ORDER OF THE SECRETARY OF AGRICULTURE FIXING
RATES UNDER THE PACKERS AND STOCKYARDS ACT, THE DISTRICT COURT SITS AS
A COURT OF EQUITY, AND IN EXERTING ITS EXTRAORDINARY POWERS TO STAY
EXECUTION OF THE ORDER, AND IN DIRECTING PAYMENT INTO COURT OF SO MUCH
OF THE RATES IN EFFECT AS HAS BEEN FOUND ADMINISTRATIVELY TO BE
EXCESSIVE, THE COURT ASSUMES THE DUTY OF MAKING DISPOSITION OF THE FUND
IN CONFORMITY WITH EQUITABLE PRINCIPLES.  P. 191. 

5.  THE PACKERS AND STOCKYARDS ACT DENOUNCES UNREASONABLE RATES AS
UNLAWFUL.  REASONABLENESS OF THE RATES WAS NOT ESTABLISHED BY THE FILED
SCHEDULES.  AND WHERE AN ORDER OF THE SECRETARY OF AGRICULTURE FIXING
NEW AND LOWER STOCKYARDS RATES IN SUBSTITUTION FOR THE FILED RATES HAS
BEEN SET ASIDE FOR LACK OF DUE PROCEDURE, HE REMAINS FREE UNDER THE ACT
TO DETERMINE IN A REOPENING OF HIS PROCEEDINGS WHAT RATES WILL BE
REASONABLE FOR THE FUTURE AND FOR THE PERIOD IN WHICH THE ORIGINAL
ORDER WAS MADE.  PP. 195, 197. 

HIS DETERMINATION WILL AFFORD A PROPER BASIS FOR THE ACTION OF THE
DISTRICT COURT IN MAKING DISPOSITION OF THE FUND HERE IN QUESTION. 

THE DISTRICT COURT, IN STAYING THE SECRETARY'S ORDER IN THIS CASE AND
AT THE SAME TIME ARRESTING EXCESS PAYMENTS UNDER SCHEDULED RATES, ACTED
AS A COURT OF EQUITY, CHARGED BOTH WITH THE RESPONSIBILITY OF
PROTECTING THE FUND AND OF DISPOSING OF IT ACCORDING TO LAW, AND FREE
IN THE DISCHARGE OF THAT DUTY TO USE BROAD DISCRETION IN THE EXERCISE
OF ITS POWERS IN SUCH MANNER AS TO AVOID AN UNJUST OR UNLAWFUL RESULT. 
THE DUTY WAS THE MORE IMPERATIVE BECAUSE THE INJUNCTION NOT ONLY
DEPRIVED THE PUBLIC OF THE LOWER RATES, BUT OBSTRUCTED ANY EFFECTIVE
REPARATION ORDER BY THE SECRETARY UNDER THE PROVISIONS OF THE STATUTE. 
P. 193. 

6.  THE EXTENT TO WHICH A COURT OF EQUITY MAY GRANT ITS AID, AND THE
MOULDING OF ITS REMEDIES, MAY BE AFFECTED BY THE PUBLIC INTEREST
INVOLVED.  P. 194. 

UNITED STATES ET AL. V. MORGAN ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MISSOURI. 

APPEAL FROM AN ORDER OF THE DISTRICT COURT RESPECTING THE DISPOSITION
OF FUNDS IMPOUNDED IN THE LITIGATION OVER THE VALIDITY OF THE ORDER OF
THE SECRETARY OF AGRICULTURE WHICH THIS COURT HELD INVALID FOR WANT OF
DUE PROCEDURE IN MORGAN V. UNITED STATES, 298 U.S. 468, ID., 304 U.S.
1, 23.  THE DECREE PERMANENTLY ENJOINED AGAINST ENFORCEMENT OF THE
ORDER BUT, AS PERMITTED BY THE MANDATE FROM THIS COURT, UNDERTOOK TO
MAKE PROPER DISPOSITION OF THE FUND.  IT OVERRULED THE MOTION OF THE
GOVERNMENT AND THE SECRETARY OF AGRICULTURE FOR A STAY TO AWAIT THE
OUTCOME OF FURTHER PROCEEDINGS BY THE SECRETARY, AND GRANTED A COUNTER
MOTION OF THE PLAINTIFFS, WHO HAD PAID THE MONEY INTO COURT, THAT IT BE
RETURNED TO THEM. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

ON THIS APPEAL WE ARE ASKED TO DETERMINE THE PROPER DISPOSITION TO BE
MADE OF A FUND PAID INTO THE COURT BELOW PENDING A SUIT INSTITUTED IN
THAT COURT TO SET ASIDE AN ORDER OF THE SECRETARY OF AGRICULTURE
REDUCING SCHEDULED RATES FOR SERVICES RENDERED AT THE KANSAS CITY
STOCKYARDS.  THE FUND IS MADE UP OF THE DIFFERENCE BETWEEN THE
SCHEDULED RATES AND THOSE PRESCRIBED BY THE SECRETARY'S ORDER, WHICH
WAS ULTIMATELY SET ASIDE BY THIS COURT IN MORGAN V. UNITED STATES, 304
U.S. 1, WITHOUT CONSIDERATION OF THE MERITS, FOR FAILURE OF THE
SECRETARY TO FOLLOW THE PROCEDURE PRESCRIBED BY THE STATUTE. 

ON JUNE 14, 1933, THE SECRETARY OF AGRICULTURE PROMULGATED AN ORDER
UNDER THE PACKERS AND STOCKYARDS ACT, 1921, 42 STAT. 159; 7 U.S.C.
SECS. 181-229, SETTING ASIDE A SCHEDULE OF MAXIMUM RATES TO BE CHARGED
FOR STOCKYARD SERVICES, FILED BY MARKET AGENCIES AT THE KANSAS CITY
STOCKYARDS, AND PRESCRIBING A NEW AND LOWER RATE SCHEDULE FOR THE
FUTURE.  IN A SUIT BROUGHT IN THE DISTRICT COURT FOR WESTERN MISSOURI
BY APPELLEES, CONDUCTING MARKET AGENCIES AT THE KANSAS CITY STOCKYARDS,
TO SET ASIDE THE ORDER AS CONFISCATORY AND AS HAVING BEEN RENDERED
WITHOUT PROCEDURAL DUE PROCESS, THE COURT ON JULY 22, 1933, ENTERED A
TEMPORARY RESTRAINING ORDER ENJOINING ENFORCEMENT OF THE SECRETARY'S
ORDER UPON CONDITION THAT APPELLEES SHOULD: 

"DEPOSIT WITH THE CLERK OF THIS COURT ON MONDAY OF EACH AND EVERY
WEEK HEREAFTER WHILE THIS ORDER, OR ANY EXTENSION THEREOF, MAY REMAIN
IN FORCE AND EFFECT AND PENDING FINAL DISPOSITION OF THIS CAUSE, THE
FULL AMOUNT BY WHICH THE CHARGES COLLECTED UNDER THE SCHEDULE OF RATES
IN EFFECT EXCEEDS THE AMOUNT WHICH WOULD HAVE BEEN COLLECTED UNDER THE
RATES PRESCRIBED IN THE ORDER OF THE SECRETARY, TOGETHER WITH A
VERIFIED STATEMENT OF THE NAMES AND ADDRESSES OF ALL PERSONS UPON WHOSE
BEHALF SUCH AMOUNTS ARE COLLECTED BY PETITIONER." 

AFTER TWO APPEALS WE REVERSED THE FINAL DECREE OF THE DISTRICT COURT,
WHICH HAD SUSTAINED THE ORDER OF THE SECRETARY.  THIS COURT HELD THAT
HE HAD NOT ACCORDED TO APPELLEES THE "FULL HEARING" WHICH SEC. 310 OF
THE ACT REQUIRES, AND, WITHOUT CONSIDERING THE MERITS, IT REMANDED THE
CAUSE FOR FURTHER PROCEEDINGS.  MORGAN V. UNITED STATES, 298 U.S. 468;
304 U.S. 1.  A PETITION FOR REHEARING, IN PART ON THE GROUND THAT THE
MANDATE OF THIS COURT HAD MADE NO PROVISION FOR THE DISTRIBUTION OF THE
FUND PAID INTO THE DISTRICT COURT PURSUANT TO ITS RESTRAINING ORDER,
WAS DENIED IN A MEMORANDUM OPINION STATING THAT THE QUESTIONS RAISED
WERE APPROPRIATELY FOR THE DISTRICT COURT, TO WHICH THE CAUSE HAD BEEN
REMANDED FOR FURTHER PROCEEDINGS.  THE OPINION ADDED: 

"WE REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH OUR OPINION.  WHAT FURTHER PROCEEDINGS THE SECRETARY
MAY SEE FIT TO TAKE IN THE LIGHT OF OUR DECISION, OR WHAT
DETERMINATIONS MAY BE MADE BY THE DISTRICT COURT IN RELATION TO ANY
SUCH PROCEEDINGS, ARE NOT MATTERS WHICH WE SHOULD ATTEMPT TO FORECAST
OR HYPOTHETICALLY TO DECIDE."  304 U.S. 23, 26.  BY THIS REMAND THE
SECRETARY WAS LEFT FREE TO TAKE SUCH FURTHER PROCEEDINGS AS THE STATUTE
PERMITS.  TEXAS & PACIFIC RY. CO. V. INTERSTATE COMMERCE COMM'N, 162
U.S. 197, 238-239; SOUTHERN RAILWAY CO. V. ST. LOUIS HAY & GRAIN CO.,
214 U.S. 297, 302; FLORIDA V. UNITED STATES, 292 U.S. 1, 9. 

THE SECRETARY THEREUPON, BY ORDER OF JUNE 2, 1938, REOPENED THE
ORIGINAL PROCEEDINGS WHICH HAD RESULTED IN THE CHALLENGED ORDER OF JUNE
14, 1933.  HE DIRECTED THAT THE "PROCEEDINGS, FINDINGS OF FACT,
CONCLUSION, AND ORDER" OF JUNE 14, 1933, BE SERVED UPON THE APPELLEE
MARKET AGENCIES AS HIS TENTATIVE FINDINGS AND ORDER, WITH AN
OPPORTUNITY FOR APPELLEES TO FILE EXCEPTIONS TO THEM AND TO MAKE ORAL
ARGUMENT UPON THE EXCEPTIONS.  THIS ACTION WAS FOLLOWED, JUNE 11, 1938,
BY THE PRESENT PROCEEDING, BEGUN BY MOTION OF APPELLANTS IN THE
DISTRICT COURT TO STAY FURTHER PROCEEDINGS THERE AND TO DIRECT THE
CLERK OF THE COURT TO RETAIN THE IMPOUNDED FUNDS UNTIL SUCH TIME AS THE
SECRETARY, PROCEEDING WITH DUE EXPEDITION, SHOULD HAVE ENTERED A FINAL
ORDER IN THE PROCEEDINGS REOPENED BY HIM.  THIS MOTION WAS DENIED, AND
FROM THE ORDER OF THE DISTRICT COURT GRANTING A COUNTER-MOTION BY
APPELLEES TO DISTRIBUTE THE FUND AMONG THEM, THE CASE COMES HERE ON
APPEAL.  FN1 SEC. 316 OF THE PACKERS AND STOCKYARDS ACT, 42 STAT. 168;
7 U.S.C. SEC. 217; 38 STAT. 220, 28 U.S.C. SECS. 47, 47(A); SEC. 238(5)
OF THE JUDICIAL CODE; 28 U.S.C. SEC. 345(5).  THIS COURT HAS STAYED AND
SUPERSEDED THE ORDER OF THE DISTRICT COURT PENDING APPEAL.  OCTOBER 10,
1938. 

THE DISTRICT COURT HELD THAT THE FUND SHOULD PRESENTLY BE DISTRIBUTED
TO APPELLEES, BOTH BECAUSE THE SECRETARY IS WITHOUT AUTHORITY UNDER THE
ACT TO MAKE ANY ORDER PRESCRIBING RATES AND CHARGES WHICH WILL BE
EFFECTIVE AS OF JUNE 14, 1933, THE DATE OF HIS ORIGINAL ORDER, AND
BECAUSE IT CONSTRUED THE TERMS OF ITS OWN RESTRAINING ORDER AS
REQUIRING DISTRIBUTION OF THE FUND TO APPELLEES ON THE FINAL
DETERMINATION BY THIS COURT THAT THE SECRETARY'S ORDER OF JUNE 14,
1933, WAS INVALID.  THUS, AS A RESULT OF THE LITIGATION, THE DISTRICT
COURT HAS TWICE SUSTAINED THE DETERMINATION OF THE SECRETARY THAT THE
RATES PRESCRIBED BY HIM, ON THE BASIS OF VOLUMINOUS EVIDENCE, WERE
REASONABLE; BUT BECAUSE OF THIS COURT'S DECISION THAT THE SECRETARY HAD
FAILED TO OBSERVE THE STATUTORY REQUIREMENT OF A FULL HEARING, WE HAVE
NEVER REVIEWED THAT DETERMINATION.  THE QUESTION NOW ARISES WHETHER
UPON A REDETERMINATION OF THAT ISSUE BY THE SECRETARY THE DISTRICT
COURT WILL HAVE, AND SHOULD EXERCISE, THE POWER TO ORDER DISTRIBUTION
OF THE IMPOUNDED FUND IN CONFORMITY TO HIS DETERMINATION BY DIRECTING
THAT SO MUCH, IF ANY, OF THE AMOUNTS PAID INTO COURT AS EXCEEDS THE
RATES ULTIMATELY DETERMINED UPON APPROPRIATE REVIEW OF THE SECRETARY'S
FINDINGS TO BE JUST AND REASONABLE BE RETURNED TO THOSE WHO HAVE PAID
THEM.  THIS ISSUE MUST BE DECIDED NOW, FOR UNLESS THE COURT WILL HAVE
SUCH POWER THERE IS NO OCCASION TO RETAIN THE FUND PENDING FURTHER
PROCEEDINGS BEFORE THE SECRETARY, AND DISTRIBUTION OF IT MUST BE MADE
AS THE DISTRICT COURT HAS DIRECTED. 

DECISION TURNS ON THE MEANING AND APPLICATION OF THE PROVISIONS OF
THE PACKERS AND STOCKYARDS ACT, CONSTRUED IN THE LIGHT OF ITS DOMINANT
PURPOSE TO SECURE TO PATRONS OF THE STOCKYARDS PRESCRIBED STOCKYARD
SERVICES AT JUST AND REASONABLE RATES, AND UPON THE AUTHORITY AND DUTY
OF THE DISTRICT COURT TO EFFECTUATE THAT PURPOSE IN MAKING DISPOSITION
OF THE FUND.  SECTION 304 OF THE ACT REQUIRES EVERY STOCKYARD OWNER AND
MARKET AGENCY TO FURNISH NONDISCRIMINATORY AND REASONABLE STOCKYARD
SERVICES, AND SEC. 305 DECLARES THAT "ALL RATES OR CHARGES MADE FOR ANY
STOCKYARD SERVICES FURNISHED AT A STOCKYARD BY A STOCKYARD OWNER OR
MARKET AGENCY SHALL BE JUST, REASONABLE, AND NONDISCRIMINATORY, AND ANY
UNJUST, UNREASONABLE, OR DISCRIMINATORY RATE OR CHARGE IS PROHIBITED
AND DECLARED TO BE UNLAWFUL."  SECTION 307 MAKES A LIKE REQUIREMENT AS
TO REGULATIONS AND PRACTICES IN RESPECT TO FURNISHING STOCKYARD
SERVICES.  SECTION 306 MAKES IT THE DUTY OF STOCKYARD OWNERS AND MARKET
AGENCIES TO FILE WITH THE SECRETARY A SCHEDULE OF RATES FOR STOCKYARD
SERVICES AND TO CHARGE AND COLLECT SUCH RATES, UNLESS THEY ARE SET
ASIDE BY APPROPRIATE ACTION OF THE SECRETARY OR CHANGED BY THE FILING
OF NEW RATES AS AUTHORIZED BY THE SECTION.  SECTION 308(A) PROVIDES
THAT ANY STOCKYARD OWNER OR MARKET AGENCY VIOLATING ANY OF THE
PREVIOUSLY MENTIONED SECTIONS SHALL BE LIABLE TO THE PERSONS INJURED TO
THE FULL EXTENT OF THE DAMAGE SUSTAINED.  SECTION 308(B) PROVIDES FOR
ENFORCEMENT OF SUCH LIABILITY EITHER BY COMPLAINT TO THE SECRETARY OR
BY SUIT IN ANY DISTRICT COURT, AND CONCLUDES WITH THE DECLARATION THAT
"THIS SECTION SHALL NOT IN ANY WAY ABRIDGE OR ALTER THE REMEDIES NOW
EXISTING AT COMMON LAW OR BY STATUTE, BUT THE PROVISIONS OF THIS ACT
ARE IN ADDITION TO SUCH REMEDIES."  SECTION 310 AUTHORIZES THE
SECRETARY "AFTER FULL HEARING" ON COMPLAINT, OR ON HIS OWN INITIATIVE,
TO PRESCRIBE JUST AND REASONABLE RATES FOR THE FUTURE. 

APPELLEES INSIST THAT NOTWITHSTANDING THE COMMAND OF SEC. 305 THAT
ALL RATES SHALL BE "JUST, REASONABLE, AND NONDISCRIMINATORY," ITS
MANDATE IS EFFECTIVE ONLY SO FAR AS IMPLEMENTED BY THE OTHER SECTIONS
OF THE ACT; THAT EXCEPT IN A REPARATION CASE THE STATUTE FORBIDS THE
SECRETARY TO MAKE ORDERS AFFECTING COMPLETED TRANSACTIONS, AND THAT
ACTING ON HIS OWN INITIATIVE, AS HE DOES HERE, HE CAN FIX RATES FOR THE
FUTURE ONLY.  THEY POINT OUT THAT UNDER SEC. 309(A) AND (E) AND SEC.
310, ANY PERSON AGGRIEVED MAY, ON PETITION TO THE SECRETARY, SEEK
DAMAGES FOR THE EXACTION OF AN UNREASONABLE RATE IN THE PAST, THE
NAMING OF A NEW RATE FOR THE FUTURE, OR BOTH, BUT THAT WHEN THE
SECRETARY INSTITUTES SUCH PROCEEDINGS ON HIS OWN MOTION HE IS PRECLUDED
BY SEC. 309(C) FROM MAKING ANY ORDER FOR THE PAYMENT OF MONEY.  AS THE
ORIGINAL PROCEEDING HERE AND THE ACTION OF THE SECRETARY IN REOPENING
IT WERE TAKEN ON HIS OWN MOTION, THE CONCLUSION IS DRAWN THAT THERE CAN
BE NO LEGAL WARRANT FOR RESTITUTION OF THE IMPOUNDED MONEYS TO THE
PATRONS OF THE MARKET AGENCIES, EVEN THOUGH THE SECRETARY SHALL NOW
DETERMINE, ON EVIDENCE AND BY PROPER PROCEDURE, THAT THE SCHEDULED
RATES EXCEEDED THE REASONABLE RATES PRESCRIBED BY SEC. 305. 

EVEN THOUGH THE PREMISES BE ACCEPTED AS IN ALL RESPECTS SOUND, THE
CONCLUSION DOES NOT FOLLOW.  THERE IS HERE NO QUESTION OF THE
SECRETARY'S MAKING AN ORDER FOR THE PAYMENT OF MONEY.  THE FUND HAVING
BEEN TAKEN INTO CUSTODY OF THE COURT, IN CONSEQUENCE OF ITS ORDER
RESTRAINING THE OPERATION OF THE RATE SCHEDULE PRESCRIBED BY THE
SECRETARY, THE QUESTIONS FOR OUR DECISION ARE WHETHER THE DISTRICT
COURT, IN THE DISCHARGE OF THE DUTY WHICH IT HAS THUS ASSUMED AS A
COURT OF EQUITY, CAN RIGHTLY DISPOSE OF THE FUND WITHOUT REGARD TO THE
COMMAND OF SEC. 305 IF THE SECRETARY SHALL DETERMINE THAT THE RATES
EXACTED BY AID OF THE COURT, AND PAID INTO ITS REGISTRY, ARE EXCESSIVE;
AND WHETHER, IN THE EXERCISE OF ITS DISCRETION, THE COURT SHOULD RETAIN
THE FUND UNTIL SUCH TIME AS THE SECRETARY, PROCEEDING WITH DUE
EXPEDITION, SHALL MAKE HIS FINAL DETERMINATION AND ORDER. 

IN ANSWERING THESE QUESTIONS THERE ARE TWO CARDINAL PRINCIPLES WHICH
MUST GUIDE US TO OUR CONCLUSION.  THE ONE IS THAT IN CONSTRUING A
STATUTE SETTING UP AN ADMINISTRATIVE AGENCY AND PROVIDING FOR JUDICIAL
REVIEW OF ITS ACTION, COURT AND AGENCY ARE NOT TO BE REGARDED AS WHOLLY
INDEPENDENT AND UNRELATED INSTRUMENTALITIES OF JUSTICE, EACH ACTING IN
THE PERFORMANCE OF ITS PRESCRIBED STATUTORY DUTY WITHOUT REGARD TO THE
APPROPRIATE FUNCTION OF THE OTHER IN SECURING THE PLAINLY INDICATED
OBJECTS OF THE STATUTE.  COURT AND AGENCY ARE THE MEANS ADOPTED TO
ATTAIN THE PRESCRIBED END, AND SO FAR AS THEIR DUTIES ARE DEFINED BY
THE WORDS OF THE STATUTE, THOSE WORDS SHOULD BE CONSTRUED SO AS TO
ATTAIN THAT END THROUGH COORDINATED ACTION.  NEITHER BODY SHOULD REPEAT
IN THIS DAY THE MISTAKE MADE BY THE COURTS OF LAW WHEN EQUITY WAS
STRUGGLING FOR RECOGNITION AS AN AMELIORATING SYSTEM OF JUSTICE; FN2
NEITHER CAN RIGHTLY BE REGARDED BY THE OTHER AS AN ALIEN INTRUDER, TO
BE TOLERATED IF MUST BE, BUT NEVER TO BE ENCOURAGED OR AIDED BY THE
OTHER IN THE ATTAINMENT OF THE COMMON AIM.  THE OTHER GUIDING PRINCIPLE
IS THAT IN REVIEWING THE ACTION OF THE SECRETARY AND IN SIMILARLY
REVIEWING THE ACTION OF THE INTERSTATE COMMERCE COMMISSION IN
CONFORMITY WITH THE PROVISIONS OF THE URGENT DEFICIENCIES ACT, THE
DISTRICT COURT SITS AS A COURT OF EQUITY, SEE FORD MOTOR CO. V.
NATIONAL LABOR RELATIONS BOARD, 305 U.S. 364, 373; INLAND STEEL CO. V.
UNITED STATES, 306 U.S. 153; AND IN EXERTING ITS EXTRAORDINARY POWERS
TO STAY EXECUTION OF A RATE ORDER, AND IN DIRECTING PAYMENT INTO COURT
OF SO MUCH OF THE RATE AS HAS BEEN FOUND ADMINISTRATIVELY TO BE
EXCESSIVE, IT ASSUMES THE DUTY OF MAKING DISPOSITION OF THE FUND IN
CONFORMITY TO EQUITABLE PRINCIPLES. 

ASSUMING, AS APPELLEES CONTEND, THAT AFTER THE SECRETARY'S ORDER OF
JUNE, 1933, WAS SET ASIDE HE COULD, IN THE REOPENED PROCEEDING, NEITHER
PROMULGATE A RATE ORDER AS OF THAT DATE NOR MAKE AN ORDER FOR THE
PAYMENT OF MONEY, HE WAS STILL NOT WITHOUT AUTHORITY IN THE PREMISES
UNDER THE STATUTE AND THE MANDATE OF THIS COURT.  HE WAS FREE TO MAKE
AN ORDER FIXING RATES FOR THE FUTURE, AND FOR THAT PURPOSE OR ANY OTHER
WITHIN THE PURVIEW OF THE ACT HE IS NOW FREE TO DETERMINE A REASONABLE
RATE FOR THE PERIOD ANTEDATING ANY ORDER HE MAY NOW MAKE.  SEE ATLANTIC
COAST LINE R. CO. V. FLORIDA, 295 U.S. 301, 312.  NO PRIOR DECISION OF
THE SECRETARY STANDS IN THE WAY OF HIS MAKING THE DETERMINATION NOW. 
CF. ARIZONA GROCERY CO. V. ATCHISON, T. & S.F. RY. CO., 284 U.S. 370. 
THE SOLE LIMITATION UPON HIS POWER, PRESCRIBED BY SEC. 309(C), IS THAT
UPON AN INQUIRY INSTITUTED BY HIM HE MAY NOT ORDER THE PAYMENT OF
MONEY.  IN OTHER RESPECTS HIS POWER TO INVESTIGATE AND DECIDE IS
UNAFFECTED.  FN3  HE MAY MAKE INQUIRY "AS TO ANY MATTER OR THING
CONCERNING WHICH A COMPLAINT IS AUTHORIZED TO BE MADE" TO HIM, "OR
CONCERNING WHICH ANY QUESTION MAY ARISE UNDER ANY OF THE PROVISIONS" OF
THE ACT, "OR RELATING TO THE ENFORCEMENT OF ANY" PROVISION.  HE IS
GIVEN "THE SAME POWER AND AUTHORITY TO PROCEED WITH ANY INQUIRY
INSTITUTED UPON HIS OWN MOTION AS THOUGH HE HAD BEEN APPEALED TO BY
PETITION, INCLUDING THE POWER TO MAKE AND ENFORCE ANY ORDER OR ORDERS
IN THE CASE OR RELATING TO THE MATTER OR THING CONCERNING WHICH THE
INQUIRY IS HAD, EXCEPT ORDERS FOR THE PAYMENT OF MONEY."  SEC. 309(C). 

THAT THE SECRETARY, ACTING UNDER SEC. 309(A), COULD NOW ENTERTAIN A
COMPLAINT BY THE PATRONS OF APPELLEES WHO HAVE CONTRIBUTED TO THE FUND
IN COURT CHARGING THAT THE RATES EXACTED WERE IN VIOLATION OF SEC. 305,
SEEMS TO BE CONCEDED AND IS, WE THINK, PLAIN.  SECTION 309(A)
SPECIFICALLY PROVIDES:  "IF  ...  THERE APPEARS TO BE ANY REASONABLE
GROUND FOR INVESTIGATING THE COMPLAINT, IT SHALL BE THE DUTY OF THE
SECRETARY TO INVESTIGATE THE MATTERS COMPLAINED OF IN SUCH MANNER AND
BY SUCH MEANS AS HE DEEMS PROPER."  IT SEEMS EQUALLY PLAIN THAT UNDER
SEC. 309(C) THE SECRETARY, IN THE EXERCISE OF HIS DISCRETION, MAY
CONDUCT SUCH AN INVESTIGATION ON HIS OWN MOTION.  ORDINARILY, IT IS
TRUE, THERE WOULD BE NO OCCASION FOR SUCH AN INVESTIGATION IF, AS A
RESULT OF IT, THE SECRETARY COULD MAKE NO REPARATION ORDER.  BUT, AS WE
SHALL PRESENTLY POINT OUT, WHEN THE ALLEGED EXCESSIVE RATES ARE IN
CUSTODIA LEGIS, THE COURT HAS AUTHORITY AND IS UNDER AN EQUITABLE DUTY
TO DISPOSE OF THEM ACCORDING TO LAW AND JUSTICE.  THUS THE SECRETARY
HAS THE BEST OF REASONS TO EXERCISE HIS POWER TO DETERMINE WHETHER THE
RATES WERE REASONABLE AND MAY RIGHTLY DO SO, IF HIS DETERMINATION CAN
AFFORD A PROPER BASIS FOR THE ACTION OF THE DISTRICT COURT IN MAKING
DISPOSITION OF THE FUND. 

THE DISTRICT COURT, IN STAYING THE SECRETARY'S ORDER AND AT THE SAME
TIME ARRESTING THE EXCESS PAYMENTS TO APPELLEES UNDER THE SCHEDULED
RATES, ASSUMED THE DUTY OF MAKING THE PROPER DISPOSITION OF THE FUND
UPON THE TERMINATION OF THE LITIGATION.  THE DUTY WAS THE MORE
IMPERATIVE HERE BECAUSE THE COURT'S INJUNCTION ORDER NOT ONLY DEPRIVED
THE PUBLIC OF THE BENEFIT OF THE LOWER RATES BUT OBSTRUCTED ANY
EFFECTIVE REPARATION ORDER BY THE SECRETARY.  ITS ACTION PRESUPPOSED
THAT THE OWNERSHIP OF THE EXCESS PAYMENTS WAS IN DOUBT AND COULD BE
FINALLY DETERMINED ONLY BY AN ADJUDICATION ON THE MERITS OF THE
REASONABLENESS OF THE FILED RATES.  IN TAKING THE PAYMENTS INTO CUSTODY
IT ACTED AS A COURT OF EQUITY, CHARGED BOTH WITH THE RESPONSIBILITY OF
PROTECTING THE FUND AND OF DISPOSING OF IT ACCORDING TO LAW, AND FREE
IN THE DISCHARGE OF THAT DUTY TO USE BROAD DISCRETION IN THE EXERCISE
OF ITS POWERS IN SUCH MANNER AS TO AVOID AN UNJUST OR UNLAWFUL RESULT. 
IT ENTERED INTO NO CONTRACT OR UNDERSTANDING WITH THE LITIGANTS; IT
ENTERED INTO NO UNDERTAKING AS TO THE MANNER OF DISPOSING OF THE FUND;
ITS DUTY WITH RESPECT TO IT IS THAT PRESCRIBED BY THE APPLICABLE
PRINCIPLES OF LAW AND EQUITY FOR THE PROTECTION OF THE LITIGANTS AND
THE PUBLIC, WHOSE INTERESTS THE INJUNCTION AND THE FINAL DISPOSITION OF
THE FUND AFFECT.  INLAND STEEL CO. V. UNITED STATES, SUPRA. 

IT IS FAMILIAR DOCTRINE THAT THE EXTENT TO WHICH A COURT OF EQUITY
MAY GRANT OR WITHHOLD ITS AID, AND THE MANNER OF MOULDING ITS REMEDIES,
MAY BE AFFECTED BY THE PUBLIC INTEREST INVOLVED.  CENTRAL KENTUCKY GAS
CO. V. RAILROAD COMMISSION, 290 U.S. 264, 271; PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176, 185; VIRGINIAN RY. CO. V. SYSTEM FEDERATION,
300 U.S. 515, 552 ET SEQ. CONGRESS HAVING BY THE PACKERS AND STOCKYARDS
ACT ESTABLISHED THE PUBLIC POLICY OF MAINTAINING REASONABLE RATES FOR
STOCKYARD SERVICES, AND HAVING PROHIBITED AND DECLARED UNLAWFUL ANY
UNJUST OR UNREASONABLE RATE, A COURT OF EQUITY SHOULD BE ASTUTE TO
AVOID THE USE OF ITS PROCESS TO EFFECTUATE THE COLLECTION OF UNLAWFUL
RATES, AND EQUALLY SO TO DIRECT IT TO THE RESTITUTION OF RATES WHICH IT
HAS TAKEN INTO ITS OWN CUSTODY, ONCE THEY ARE SHOWN TO HAVE BEEN
UNLAWFUL.  IF SUCH A DETERMINATION HAD ALREADY BEEN MADE BY THE
SECRETARY IN THE PROCEEDING BEFORE HIM, AFTER FULL HEARING, AND IF IT
WERE FOUND BY THE DISTRICT COURT TO BE SUPPORTED BY EVIDENCE, THE DUTY
OF THE COURT TO MAKE RESTITUTION FORTHWITH WOULD SEEM EVIDENT,
NOTWITHSTANDING THE ABSENCE OF ANY ORDER OF THE SECRETARY DIRECTING THE
PAYMENT.  INLAND STEEL CO. V. UNITED STATES, SUPRA.  FN4  THE
SECRETARY, AS WE HAVE SEEN, IS AUTHORIZED TO MAKE THE DETERMINATION. 
DECLARED BY SEC. 308(B), SAVES TO THE COURT AUTHORITY TO GIVE ANY
REMEDY WHICH IN THE PRESENT CIRCUMSTANCES IT MIGHT OTHERWISE AFFORD. 

THIS COURT WENT MUCH FURTHER IN ATLANTIC COAST LINE R. CO. V.
FLORIDA, SUPRA, IN DENYING, ON EQUITABLE GROUNDS, RESTITUTION TO
SHIPPERS OF THE EXCESS OF AN INTRASTATE RATE, PRESCRIBED BY ORDER OF
THE INTERSTATE COMMERCE COMMISSION TO AVOID DISCRIMINATION AGAINST
INTERSTATE COMMERCE, OVER THAT PRESCRIBED BY THE STATE COMMISSION,
WHERE THE ORDER OF THE FORMER WAS LATER SET ASIDE BY THIS COURT FOR
WANT OF PROPER FINDINGS BY THE COMMISSION.  UPON FURTHER PROCEEDINGS
BEFORE THE COMMISSION IT MADE A SECOND ORDER, UPON PROPER FINDINGS OF
DISCRIMINATION, ESTABLISHING THE RATE AS BEFORE.  THE FINAL RESULT OF
THE LITIGATION WAS THAT THE RAILROADS WERE PERMITTED TO COLLECT AND
RETAIN THE HIGHER RATES FOR A PERIOD DURING WHICH THERE WAS NO LAWFUL
ORDER OF THE COMMISSION SUPERSEDING THE STATE COMMISSION RATES.  THERE,
AS HERE, THE ADMINISTRATIVE AGENCY COULD PRESCRIBE RATES ONLY FOR THE
FUTURE, AND THE HIGHER RATES EXACTED BETWEEN THE DATE OF THE FIRST
ORDER AND THE SECOND WERE WITHOUT THE SANCTION OF A VALID ORDER.  BUT
THERE, AS HERE, THE FIRST ADMINISTRATIVE ORDER WAS NOT A NULLITY. 
EWELL V. DAGGS, 108 U.S. 143, 148, 149; WEEKS V. BRIDGMAN, 159 U.S.
541, 547; TOY TOY V. HOPKINS, 212 U.S. 542, 548.  THOUGH VOIDABLE, IT
COULD NOT BE IGNORED WITHOUT INCURRING THE PENALTIES FOR DISOBEDIENCE
INFLICTED BY THE APPLICABLE PROVISIONS OF THE STATUTE.  THE RATES DID
NOT LOSE THEIR UNJUST AND UNREASONABLE QUALITY IN THE ONE CASE, OR
CEASE TO BE UNJUSTLY DISCRIMINATORY IN THE OTHER, MERELY BECAUSE THE
ADMINISTRATIVE ORDERS IN EACH WERE VOIDABLE FOR PROCEDURAL DEFECTS OR
BECAUSE A SECOND ORDER COULD OPERATE ONLY FOR THE FUTURE.  IN EACH CASE
THE ADMINISTRATIVE AGENCY WAS NOT WITHOUT POWER TO INQUIRE WHETHER
INJUSTICE HAD BEEN DONE BY THE EARLIER RATE, AND THE COURT, CALLED ON
TO ASCERTAIN, ACCORDING TO EQUITABLE PRINCIPLES, THE RIGHTS OF THE
PARTIES WITH RESPECT TO PAYMENTS MADE UNDER THE VOIDABLE ORDER, COULD
TAKE INTO ACCOUNT THE SUBSEQUENT DETERMINATION OF THE ADMINISTRATIVE
AGENCY AS THE BASIS OF ITS ACTION.  ATLANTIC COAST LINE R. CO. V.
FLORIDA, SUPRA, 312-313, 317; NEW YORK EDISON CO. V. MALTBIE, 244 APP.
DIV. 436; 279 N.Y.S. 949; BROOKLYN UNION GAS CO. V. MALTBIE, 245 APP.
DIV. 74; 281 N.Y.S. 233. 

IT IS SAID THAT THE DISTINCTION BETWEEN THIS AND THE ATLANTIC COAST
LINE CASE IS THE DISTINCTION BETWEEN JUDICIAL INACTION AND JUDICIAL
ACTION; THAT THERE THE COURT, UPON SETTLED EQUITABLE PRINCIPLES, WAS
FREE TO REFRAIN FROM COMPELLING RESTITUTION IF SATISFIED THAT NO
INJUSTICE HAD BEEN DONE, SEE TIFFANY V. BOATMAN'S INSTITUTION, 18
WALL.  375, 385; MISSISSIPPI & M.R. CO. V. CROMWELL, 91 U.S. 643, 645;
DEWEESE V. REINHARD, 165 U.S. 386, 390, BUT THAT HERE THE COURT IS
CALLED ON BY APPELLANTS TO ACT BY WITHHOLDING FROM APPELLEES RATES
WHICH ARE STILL LAWFULLY IN FORCE BECAUSE THE FILED SCHEDULE HAS NOT
BEEN SET ASIDE BY A VALID ORDER OF THE SECRETARY.  WHILE AT THE MOMENT
APPELLANTS ARE CONTENT WITH INACTION, AND IT IS APPELLEES WHO ARE
DEMANDING ACTION - THE PAYMENT TO THEM OF RATES WHOSE LAWFULNESS IS
CHALLENGED AND NOT YET DETERMINED - THE ACTUAL POSTURE OF THE CASE IS
SUCH THAT THE COURT IS UNDER A SELFIMPOSED DUTY TO ACT BY VIRTUE OF
HAVING TAKEN THE FUND INTO ITS POSSESSION, AND IN ACTING TO DISPOSE OF
THE FUND IT MUST CONFORM TO CONTROLLING LEGAL PRINCIPLES. 
REASONABLENESS OF THE RATES WAS NOT ESTABLISHED BY THE FILED
SCHEDULES.  HAD THE RATES COLLECTED BEEN PAID TO APPELLEES INSTEAD OF
TO THE CLERK OF THE COURT, THE SECRETARY COULD HAVE ORDERED REPARATION
UPON PROPER FINDINGS THAT THEY WERE UNREASONABLE.  AND THE QUESTION IS
WHETHER THE COURT MUST NOW, IN THE FACE OF A PROCEEDING BY THE
SECRETARY TO DETERMINE THE REASONABLENESS OF THE CHALLENGED RATES, USE
ITS POWER TO COMPLETE THEIR COLLECTION AT THE RISK OF OBSTRUCTING
REPARATION, OR WHETHER IT SHOULD ITSELF REMAIN INACTIVE UNTIL THEIR
LAWFULNESS IS DETERMINED AND THEN ACT ACCORDINGLY. 

IT IS A POWER "INHERENT IN EVERY COURT OF JUSTICE SO LONG AS IT
RETAINS CONTROL OF THE SUBJECT MATTER AND OF THE PARTIES, TO CORRECT
THAT WHICH HAS BEEN WRONGFULLY DONE BY VIRTUE OF ITS PROCESS." 
ARKADELPHIA CO. V. ST. LOUIS SOUTHWESTERN RY. CO., 249 U.S. 134, 146. 
SEE NORTHWESTERN FUEL CO. V. BROCK, 139 U.S. 216, 219.  WHAT HAS BEEN
GIVEN OR PAID UNDER THE COMPULSION OF A JUDGMENT THE COURT WILL RESTORE
WHEN ITS JUDGMENT HAS BEEN SET ASIDE AND JUSTICE REQUIRES RESTITUTION. 
NORTHWESTERN FUEL CO. V. BROCK, SUPRA; EX PARTE LINCOLN GAS & ELECTRIC
CO., 257 U.S. 6; BALTIMORE & OHIO R. CO. V. UNITED STATES, 279 U.S.
781.  AND WHERE BY ITS INJUNCTION A COURT HAS COMPELLED PAYMENT INTO
ITS REGISTRY OF AMOUNTS WHICH MAY IN PENDING PROCEEDINGS BE FOUND NOT
TO HAVE BEEN DUE FROM THOSE WHO PAID THEM, WE THINK JUSTICE EQUALLY
REQUIRES THE COURT TO AWAIT THE OUTCOME OF THE PROCEEDINGS IN ORDER
THAT IT MAY DISCHARGE THE DUTY WHICH IT OWES TO THE LITIGANTS AND THE
PUBLIC BY AVOIDING UNLAWFUL DISPOSITION OF THE FUND IN THE MEANTIME,
AND ULTIMATELY DISTRIBUTING IT TO THOSE FOUND TO BE ENTITLED TO IT.
SEE NEW YORK EDISON CO. V. MALTBIE, SUPRA; BROOKLYN UNION GAS CO. V.
MALTBIE, SUPRA; CF. UNITED STATES V. KLEIN, 303 U.S. 276. 

A PROCEEDING IS NOW PENDING BEFORE THE SECRETARY IN WHICH, AS WE HAVE
SEEN, HE IS FREE TO DETERMINE THE REASONABLENESS OF THE RATES.  HIS
DETERMINATION, IF SUPPORTED BY EVIDENCE AND MADE IN A PROCEEDING
CONDUCTED IN CONFORMITY WITH THE STATUTE AND DUE PROCESS, WILL AFFORD
THE APPROPRIATE BASIS FOR ACTION IN THE DISTRICT COURT IN MAKING
DISTRIBUTION OF THE FUND IN ITS CUSTODY.  ATLANTIC COAST LINE R. CO. V.
FLORIDA, SUPRA, 312-313, 317.  DUE REGARD FOR THE DISCHARGE OF THE
COURT'S OWN RESPONSIBILITY TO THE LITIGANTS AND TO THE PUBLIC AND THE
APPROPRIATE EXERCISE OF ITS DISCRETION IN SUCH MANNER AS TO EFFECTUATE
THE POLICY OF THE ACT AND FACILITATE ADMINISTRATION OF THE SYSTEM WHICH
IT HAS SET UP, REQUIRE RETENTION OF THE FUND BY THE DISTRICT COURT
UNTIL SUCH TIME AS THE SECRETARY, PROCEEDING WITH DUE EXPEDITION, SHALL
HAVE ENTERED A FINAL ORDER IN THE PROCEEDINGS PENDING BEFORE HIM.  CF.
MAHLER V. EBY, 264 U.S. 32; TOD V. WALDMAN, 266 U.S. 113.  THE DISTRICT
COURT WILL THUS AVOID THE RISK OF USING ITS PROCESS AS AN INSTRUMENT OF
INJUSTICE AND, WITH THE FULL RECORD OF THE SECRETARY'S PROCEEDINGS
BEFORE IT, INCLUDING FINDINGS SUPPORTED BY EVIDENCE, THE COURT WILL
HAVE THE APPROPRIATE BASIS FOR ITS ACTION AND WILL BE ABLE TO MAKE ITS
ORDER OF DISTRIBUTION ACCORDINGLY.  REVERSED. 

FN1  ON THE SAME DATE THE DISTRICT COURT ENTERED A DECREE ON THE
MANDATE OF THIS COURT SETTING ASIDE THE SECRETARY'S ORDER OF JUNE 14,
1933, AND PERMANENTLY ENJOINING ITS ENFORCEMENT.  IN THAT DECREE THE
DISTRICT COURT RETAINED JURISDICTION AND DECREED THAT "SUCH OTHER
PROCEEDINGS BE HAD HEREIN IN CONFORMITY TO THE OPINION OF SAID SUPREME
COURT WITH REFERENCE TO THE DISTRIBUTION OR RESTITUTION OF FUNDS
DEPOSITED BY PLAINTIFFS IN THE REGISTRY OF THIS COURT WITH THE CLERK
THEREOF PURSUANT TO THE PROVISIONS OF THE TEMPORARY RESTRAINING ORDER
ENTERED ON THE 22ND DAY OF JULY 1933 AS TO LAW AND JUSTICE MAY
APPERTAIN." 

FN2  SEE Y.B. 22 ED. IV MICH. PL. 21; HEATH V. RYDLEY, (1614) CRO. 
JAC.  335; 1 HOLDSWORTH, HISTORY OF ENGLISH LAW, 459-465. 

FN3  SEC. 309(C); "THE SECRETARY MAY AT ANY TIME INSTITUTE AN INQUIRY
ON HIS OWN MOTION, IN ANY CASE AND AS TO ANY MATTER OR THING CONCERNING
WHICH A COMPLAINT IS AUTHORIZED TO BE MADE TO OR BEFORE THE SECRETARY,
BY ANY PROVISION OF THIS TITLE, OR CONCERNING WHICH ANY QUESTION MAY
ARISE UNDER ANY OF THE PROVISIONS OF THIS TITLE, OR RELATING TO THE
ENFORCEMENT OF ANY OF THE PROVISIONS OF THIS TITLE.  THE SECRETARY
SHALL HAVE THE SAME POWER AND AUTHORITY TO PROCEED WITH ANY INQUIRY
INSTITUTED UPON HIS OWN MOTION AS THOUGH HE HAD BEEN APPEALED TO BY
PETITION, INCLUDING THE POWER TO MAKE AND ENFORCE ANY ORDER OR ORDERS
IN THE CASE OR RELATING TO THE MATTER OR THING CONCERNING WHICH THE
INQUIRY IS HAD, EXCEPT ORDERS FOR THE PAYMENT OF MONEY." 

FN4  IN INLAND STEEL CO. V. UNITED STATES, 306 U.S. 153, THE
INTERSTATE COMMERCE COMMISSION HAD ORDERED CERTAIN RAILROADS TO CEASE
THE PAYMENT TO SHIPPERS, IN CONFORMITY TO A FILED TARIFF, OF SWITCHING
CHARGES WHICH THE COMMISSION HAD FOUND TO BE UNLAWFUL.  ON REVIEW OF
THE ACTION OF THE COMMISSION THE DISTRICT COURT STAYED THE COMMISSION'S
ORDER AND DIRECTED THE RAILROADS, PENDING FINAL DISPOSITION OF THE
CAUSE, TO PLACE FURTHER PAYMENTS DUE UNDER THE TARIFF IN A SPECIAL FUND
TO BE HELD SUBJECT TO THE ORDER OF THE COURT.  THE COMMISSION'S ORDER
WAS ULTIMATELY SUSTAINED, BUT MEANWHILE THE COMMISSION, PENDING REVIEW
IN THE COURTS, HAD POSTPONED THE EFFECTIVE DATE OF ITS ORDER, SO THAT
DURING THE LITIGATION THERE WAS NO OPERATIVE COMMISSION ORDER
FORBIDDING THE UNLAWFUL PAYMENTS.  THIS COURT REJECTED THE CONTENTION
OF THE SHIPPERS THAT THE FUND MUST BE PAID OVER TO THEM BECAUSE IT WAS
ACCUMULATED IN THE ABSENCE OF A CONTROLLING ORDER OF THE COMMISSION. 
WE HELD THAT IT WAS THE DUTY OF THE DISTRICT COURT, RESULTING FROM ITS
INJUNCTION AND ITS CONTROL OVER THE FUND, TO MAKE EQUITABLE DISPOSITION
OF IT, AND WE SUSTAINED THE DISTRICT COURT'S ORDER THAT THE FUND SHOULD
BE TURNED OVER TO THE RAILROADS IN CONFORMITY TO THE COMMISSION'S
DETERMINATION, CONFIRMED ON JUDICIAL REVIEW, THAT THE SWITCHING
ALLOWANCES WERE UNLAWFUL.    MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BUTLER, DISSENTING. 

IN PROCEEDINGS INSTITUTED ON COMPLAINT OF SHIPPERS IN 1922, THE
SECRETARY, JULY 27, 1923, APPROVED A 15 PER CENT REDUCTION OF MARKET
AGENCIES' CHARGES.  IN MAY, 1932, THE AGENCIES FILED TARIFFS, WHICH
WERE NOT CHALLENGED BY SHIPPERS OR SUSPENDED BY THE SECRETARY, MAKING
ADDITIONAL REDUCTIONS OF ABOUT 10 PER CENT.  THESE RATES REMAINED IN
FORCE UNTIL NOVEMBER 1, 1937.  THEN THERE BECAME EFFECTIVE A NEW
SCHEDULE ESTABLISHED BY AGREEMENT BETWEEN THE AGENCIES AND THE
SECRETARY.  THERE BEING NO QUESTION AS TO REASONABLENESS OF CHARGES
MADE SINCE THAT DATE, THE APPELLEES WERE NOT REQUIRED TO CONTINUE
MAKING DEPOSITS TO SECURE THEIR COMPLIANCE WITH THE SECRETARY'S ORDER
OF JUNE 14, 1933 CHALLENGED IN THIS SUIT, AND SO IMPOUNDING CEASED. 

THE MONEY ON DEPOSIT IN THE DISTRICT COURT IS MADE UP OF AMOUNTS
TAKEN FROM CHARGES AS LOW AS, OR LOWER THAN, THOSE SO PUT AND KEPT IN
FORCE AND APPLIED UNTIL NOVEMBER 1, 1937.  IN THE PROCEEDINGS PENDING
BEFORE HIM, THE SECRETARY MAY NOT ORDER REPARATION (SEE SEC. 309; ALSO
ARIZONA GROCERY CO. V. ATCHISON, T. & S.F. RY. CO., 284 U.S. 370, 389)
AND IS WITHOUT JURISDICTION TO DO MORE THAN PRESCRIBE CHARGES TO BE
APPLIED AFTER THE EFFECTIVE DATE OF THAT ORDER IF ONE SHALL BE MADE. 
THE CHALLENGED ORDER HAVING BEEN ADJUDGED INVALID BECAUSE MADE IN
VIOLATION OF THE ACT, MORGAN V. UNITED STATES, 304 U.S. 1, THE
APPELLEES IMMEDIATELY BECAME ENTITLED TO THE MONEY THAT, IN PURSUANCE
OF THE RESTRAINING ORDER, WAS DEPOSITED IN COURT BY THEM TO SECURE
THEIR COMPLIANCE WITH THE SECRETARY'S ORDER IF FOUND VALID.  THE RECORD
CONTAINS NOTHING TO SUPPORT THE IDEA THAT THE PLEDGE WAS FOR ANY OTHER
PURPOSE, OR TO JUSTIFY OR EXCUSE WITHHOLDING IT FOR ANOTHER USE.  FOR
THE REASONS STATED IN ITS OPINION, 24 F.SUPP.  214, THE DISTRICT COURT
RIGHTLY HELD APPELLEES ENTITLED TO HAVE THEIR MONEY RETURNED TO THEM. 
ITS DECREE SHOULD BE AFFIRMED. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS JOIN IN THIS OPINION. 

..END :


















UNITED STATES V. MARXEN, 307 U.S. 200 


NO. 544.  ARGUED MARCH 28, 1939.  - DECIDED MAY 15, 1939. 


R.S. SEC. 3466, GIVING TO THE UNITED STATES PRIORITY IN PAYMENT OF
DEBTS DUE TO IT BY ANY PERSON WHO IS INSOLVENT, IS INAPPLICABLE TO A
GENERAL CLAIM IN BANKRUPTCY WHICH WAS TRANSFERRED TO THE UNITED STATES,
OR TO WHICH IT BECAME SUBROGATED, AFTER THE FILING OF THE PETITION IN
BANKRUPTCY.  P. 207. 

SO HELD AS TO A CLAIM - ASSUMED TO BE A CLAIM OF THE UNITED STATES -
UPON A NOTE ASSIGNED TO THE UNITED STATES BY A BANK AFTER THE FILING OF
A PETITION IN BANKRUPTCY BY THE MAKER.  THE NOTE WAS COVERED BY A
POLICY OF INSURANCE ISSUED TO THE BANK UNDER THE NATIONAL HOUSING ACT;
THE MAKER HAD DEFAULTED; AND THE BALANCE DUE WAS PAID TO THE BANK BY
U.S. TREASURY CHECK SUBSEQUENTLY TO THE FILING OF THE PETITION IN
BANKRUPTCY. 

UNITED STATES V. MARXEN, TRUSTEE. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

QUESTION CERTIFIED BY THE CIRCUIT COURT OF APPEALS UPON AN APPEAL
FROM AN ORDER OF THE DISTRICT COURT, 24 F.SUPP.  463, WHICH CONFIRMED
AND APPROVED AN ORDER OF THE REFEREE IN BANKRUPTCY DENYING PRIORITY TO
A CLAIM. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT WITH A REQUEST FOR INSTRUCTIONS NEEDED IN A PENDING
CAUSE.  SEC. 239, JUD.  CODE; 28 U.S.C. SEC. 346.  THE FOLLOWING FACTS
ARE STATED:  ON AUGUST 10, 1934, THE FEDERAL HOUSING ADMINISTRATOR
ISSUED A POLICY OF INSURANCE, UNDER THE PROVISIONS OF THE NATIONAL
HOUSING ACT, TITLE 1, SEC. 2,  FN1  TO THE CALIFORNIA BANK, A BANKING
CORPORATION.  ON JANUARY 2, 1936, THE CALIFORNIA BANK, UNDER THE
PROTECTION OF THIS POLICY, MADE A LOAN TO THE MONTEREY BREWING
COMPANY.  THE COMPANY PAID PART OF THE INDEBTEDNESS BUT DEFAULTED ON
THE BALANCE ON FEBRUARY 2, 1937.  ON APRIL 5, 1937, IT FILED A PETITION
IN BANKRUPTCY AND WAS ADJUDICATED A BANKRUPT.  UNDER THE INSURANCE
CONTRACT THE BANK HAD TO WAIT UNTIL 60 DAYS AFTER DEFAULT BEFORE MAKING
CLAIM UPON THE ADMINISTRATOR.  THE 60 DAYS EXPIRED TWO DAYS BEFORE
BANKRUPTCY OF THE COMPANY.  THE BANK, HOWEVER, DID NOT PRESENT ITS
CLAIM TO THE ADMINISTRATOR UNTIL JULY 3, 1937; THE LATTER PAID AUGUST
4, 1937, BY DRAFT DRAWN ON THE TREASURY OF THE UNITED STATES; THE BANK
ASSIGNED THE NOTE TO THE "UNITED STATES OF AMERICA."  LATER THE
ADMINISTRATOR FILED A CLAIM UPON THE NOTE IN THE NAME OF THE UNITED
STATES OF AMERICA. 

THE REFEREE ALLOWED IT AS A GENERAL CLAIM ONLY.  THE DISTRICT COURT
APPROVED.  IN RE MONTEREY BREWING CO., 24 F.SUPP.  463.  ON THE APPEAL
TO THE CIRCUIT COURT OF APPEALS THE FOLLOWING QUESTION, DECISIVE OF THE
CONTROVERSY,  FN2  WAS CERTIFIED: 

"WHERE, PRIOR TO THE FILING OF A PETITION FOR AND ADJUDICATION IN
BANKRUPTCY OF THE MAKER OF A PROMISSORY NOTE PAYABLE TO A BANK, THE
FEDERAL HOUSING ADMINISTRATOR, UNDER THE PROVISIONS OF THE NATIONAL
HOUSING ACT, INSURED THE PAYEE BANK AGAINST THE NONPAYMENT OF THE NOTE
BY ITS MAKER, UPON WHICH NOTE THE MAKER BECAME IN DEFAULT MORE THAN
SIXTY DAYS PRIOR TO SAID FILING AND ADJUDICATION, AND UPON DEMAND OF
THE INSURED BANK MADE AFTER THE ADJUDICATION, THE FEDERAL HOUSING
ADMINISTRATOR PAID TO THE BANK ITS CLAIM ARISING FROM SUCH DEFAULT, AND
PROCURED AN ASSIGNMENT TO THE UNITED STATES OF THE CLAIM OF THE INSURED
BANK AGAINST THE BANKRUPT WHICH CLAIM HAD NOT BEEN PRESENTED OR PROVED
IN BANKRUPTCY BY THE INSURED BANK, AND PRESENTED SUCH CLAIM IN THE NAME
OF THE UNITED STATES TO THE TRUSTEE IN BANKRUPTCY HAVING BEFORE HIM
OTHER ALLOWED CLAIMS AGAINST THE BANKRUPT, IS SUCH CLAIM ENTITLED TO
PRIORITY OVER SUCH OTHER CLAIMS UNDER SEC. 3466 OF THE REVISED STATUTES
(31 U.S.C.A. SEC. 191) BY REASON OF THE PROVISIONS OF SEC. 64(B)(7)(11
U.S.C.A. SEC. 104(B)(7))." 

WHO BY THE LAWS OF  ...  THE UNITED STATES IS ENTITLED TO PRIORITY:
PROVIDED, THAT THE TERM 'PERSON'  ...  SHALL INCLUDE  ... THE UNITED
STATES  ..."  FN3  SECTION 3466 OF THE REVISED STATUTES, THE BASIS FOR
THE CLAIMED PRIORITY, PROVIDES THAT "WHENEVER ANY PERSON INDEBTED TO
THE UNITED STATES IS INSOLVENT  ...  THE DEBTS DUE TO THE UNITED STATES
SHALL BE FIRST SATISFIED; AND THE PRIORITY HEREBY ESTABLISHED SHALL
EXTEND  ... TO CASES IN WHICH AN ACT OF BANKRUPTCY IS COMMITTED." 

ALTHOUGH AN AMENDMENT OF THE NATIONAL HOUSING ACT AUTHORIZED THE
ADMINISTRATOR TO SUE AND BE SUED IN ANY COURT OF COMPETENT
JURISDICTION, STATE OR FEDERAL,  FN4  IT IS NOT NECESSARY IN ANSWERING
THE PRESENT CERTIFICATE TO DETERMINE WHETHER BY THIS ADDITION THE
CONGRESS INTENDED TO GIVE THE ADMINISTRATOR THE STATUS OF A CORPORATION
OR OTHER ENTITY DISTINCT FROM THE UNITED STATES AND BY SUCH STATUS TO
CONFER ON OR WITHHOLD FROM CLAIMS OF THE FEDERAL HOUSING ADMINISTRATION
AGAINST BANKRUPTS THE ADVANTAGES OF SEC. 3466.  FN5  WE CAN DEAL ONLY
WITH A CLAIM OF THE FEDERAL HOUSING ADMINISTRATION ASSIGNED TO THE
UNITED STATES AFTER THE ADJUDICATION IN BANKRUPTCY OF THE OBLIGOR.  IT
IS ASSUMED THAT SUCH A CLAIM BELONGS TO AND IS MADE BY THE UNITED
STATES.  FN6 

BEFORE CONSIDERING THE APPLICABILITY OF SEC. 3466 TO CLAIMS OF THE
UNITED STATES ACQUIRED AFTER THE BANKRUPTCY OF THE OBLIGOR, WE MUST
EXAMINE THE CONTENTION OF THE GOVERNMENT THAT IT POSSESSED A PROVABLE
CLAIM AT THE TIME THE PETITION IN BANKRUPTCY WAS FILED.  THIS ASSERTION
PREDICATES AN AGREEMENT, EXPRESS OR IMPLIED, BY THE OBLIGOR TO
INDEMNIFY THE GOVERNMENT FOR ANY LOSS IT MAY SUSTAIN BY REASON OF ITS
INSURANCE OF THE BANK.  THE QUESTION CERTIFIED CONTAINS NOTHING AS TO
THE CONTRACT OF INSURANCE EXCEPT THAT IT WAS UNDER THE PROVISIONS OF
THE NATIONAL HOUSING ACT AND "INSURED THE PAYEE BANK AGAINST THE NON
PAYMENT OF THE NOTE BY ITS MAKER."  THE SECTION OF THAT ACT, QUOTED
ABOVE, DOES NOT INDICATE ANY PRIVITY BETWEEN THE BANKRUPT MAKER AND THE
GOVERNMENT BASED UPON THE INSURANCE CONTRACT.  EVEN IF WE ACCEPT AS
ACCURATE THE STATEMENT IN THE CERTIFICATE THAT THE ADMINISTRATION
INSURED AGAINST THE NON-PAYMENT OF THIS NOTE,  FN7  THERE IS NOTHING IN
THE RECORD TO CONNECT THE MAKER WITH THE INSURANCE.  THE GOVERNMENT
ATTEMPTS TO FILL IN THE FACTS LACKING IN THE CERTIFICATION BY PRINTING
IN ITS BRIEF A REGULATION OF THE FEDERAL HOUSING ADMINISTRATION, NUMBER
10 OF JULY 15, 1935,  FN8  AND THE FORM OF CREDIT STATEMENT FROM THE
NOTE MAKER TO THE BANK IN USE, PRESUMABLY, AT THE TIME OF THE LOAN. 
THE FORM CONTAINS THIS SENTENCE, AS WELL AS INFORMATION AS TO THE
APPLICANT'S EMPLOYMENT OR BUSINESS, HIS INCOME AND THE PROPERTY TO BE
IMPROVED:  "THE FOLLOWING INFORMATION IS GIVEN FOR THE PURPOSE OF
INDUCING YOU TO GRANT CREDIT UNDER THE PROVISIONS OF TITLE I OF THE
NATIONAL HOUSING ACT." 

THE REGULATION AND THE CREDIT STATEMENT CERTAINLY DO NOT SUPPLY THE
FACTS NECESSARY TO THE CONCLUSION THAT THIS PARTICULAR FORM OF CREDIT
STATEMENT WAS USED.  AS THE CERTIFICATE DOES NOT SHOW THE STATE IN
WHICH THE NOTE WAS EXECUTED, PAYABLE OR ENFORCEABLE, WE ARE LEFT TO
SPECULATE AS TO THE APPLICABLE LAW OF INDEMNITY.  IT IS NOT CLEAR THAT
A VOLUNTARY GUARANTOR CAN RECOVER IN EVERY JURISDICTION FROM THE
INVOLUNTARY PRINCIPAL WHO HAS NOT REQUESTED THE SERVICE.  FN9  BUT EVEN
IF WE ASSUME THAT SUCH A GUARANTOR MAY RECOVER UPON AN IMPLIED PROMISE
OF REIMBURSEMENT, THE RULE IS NOT EFFECTIVE HERE.  THE STATEMENT OF THE
CASE AND THE QUESTION CERTIFIED SHOW THAT THE CLAIM IN BANKRUPTCY OF
THE GOVERNMENT IS BASED UPON THE NOTE, DULY ASSIGNED TO IT AFTER
BANKRUPTCY.  AS NO PROOF WAS MADE OF ANY CLAIM FOR REIMBURSEMENT, SUCH
A CLAIM IS NOT INVOLVED.  FN10 

THE CLAIM ON THE NOTE, ASSIGNED TO THE UNITED STATES SUBSEQUENTLY TO
THE MAKER'S BANKRUPTCY, HAS PRIORITY, IF AT ALL, BY VIRTUE OF THE
GENERAL PROVISIONS OF SEC. 3466, AS RECOGNIZED BY SEC. 64(B)(7) OF THE
BANKRUPTCY ACT.  FN11  THAT SUBDIVISION GRANTED PRIORITY AHEAD OF
DIVIDENDS TO CREDITORS, TO CLAIMS ENTITLED TO PRIORITY UNDER THE LAWS
OF THE UNITED STATES.  PRIORITY HAS BEEN SECURED TO THE UNITED STATES
IN VARYING LANGUAGE THROUGHOUT ITS HISTORY.  FN12  THE TENDENCY HAS
BEEN TO INTERPRET THESE PROVISIONS LIBERALLY TO SECURE THE ADVANTAGE
SOUGHT BY THE CONGRESS."  FN13  AS THIS STATUTE HAS REFERENCE TO THE
PUBLIC GOOD IT OUGHT TO BE LIBERALLY CONSTRUED."  FN14 IT HAS BEEN SAID
THAT "NOTHING ELSE APPEARING" EVEN CLAIMS UNDER THE RAILROAD FEDERAL
CONTROL ACT WOULD BE ENTITLED TO PRIORITY.  FN15  BUT THIS PRINCIPLE OF
CONSTRUCTION IS SUBJECT TO THE LIMITATION THAT THE GENERALITY OF THE
LANGUAGE OF THE SECTION IS RESTRICTED BY THE PURPOSE TO GRANT PRIORITY
TO THE UNITED STATES, ONLY, AND BY LEGISLATIVE INTENTION, AS SHOWN BY
OTHER STATUTES.  CONSEQUENTLY PRIORITY WAS REFUSED TO CORPORATIONS
WHOLLY OWNED BY THE UNITED STATES FN16  AND TO THE DIRECTOR GENERAL OF
RAILROADS BECAUSE SEC. 10 OF THE FEDERAL CONTROL ACT MANIFESTED AN
INTENTION THAT THE CARRIERS UNDER FEDERAL CONTROL SHOULD BE TREATED AS
BEFORE THEIR TRANSFER TO FEDERAL OPERATION.  FN17  THE UNITED STATES
ITSELF WHEN IT SOUGHT PRIORITY FOR ITS LOANS UNDER THE TRANSPORTATION
ACT WAS DENIED THE BENEFITS OF SEC. 3466 BECAUSE THE INTENTION TO BUILD
UP THE CREDIT STANDING OF THE RAILROADS WAS INCONSISTENT WITH THE
CLAIMED PRIORITY.  FN18 

WE ARE OF THE VIEW THAT SEC. 3466 IS INAPPLICABLE TO GENERAL CLAIMS
IN BANKRUPTCY TRANSFERRED TO THE UNITED STATES, OR TO WHICH IT HAS
BECOME SUBROGATED ON PAYMENT, AFTER THE FILING OF THE PETITION, FOR THE
REASON THAT THE RIGHTS OF CREDITORS ARE FIXED BY THE BANKRUPTCY ACT AS
OF THE FILING OF THE PETITION IN BANKRUPTCY.  THIS IS TRUE BOTH AS TO
THE BANKRUPT AND AMONG THEMSELVES.  FN19  THE ASSETS AT THAT TIME ARE
SEGREGATED FOR THE BENEFIT OF CREDITORS.  FN20  THE TRANSFER OF THE
ASSETS TO SOMEONE FOR APPLICATION TO "THE DEBTS OF THE INSOLVENT, AS
THE RIGHTS AND PRIORITIES OF CREDITORS MAY BE MADE TO APPEAR,"  FN21
TAKES PLACE AS OF THAT TIME. 

THE QUESTION CERTIFIED SHOULD THEREFORE BE ANSWERED IN THE NEGATIVE. 
QUESTION ANSWERED "NO." 

FN1  "SEC.  2.  THE ADMINISTRATOR IS AUTHORIZED AND EMPOWERED, UPON
SUCH TERMS AND CONDITIONS AS HE MAY PRESCRIBE, TO INSURE BANKS  ...
WHICH ARE APPROVED BY HIM AS ELIGIBLE FOR CREDIT INSURANCE, AGAINST
LOSSES WHICH THEY MAY SUSTAIN AS A RESULT OF LOANS AND ADVANCES OF
CREDIT, AND PURCHASES OF OBLIGATIONS REPRESENTING LOANS AND ADVANCES OF
CREDIT, MADE BY THEM  ...  FOR THE PURPOSE OF FINANCING ALTERATIONS,
REPAIRS, AND IMPROVEMENTS UPON REAL PROPERTY.  IN NO CASE SHALL THE
INSURANCE GRANTED BY THE ADMINISTRATOR UNDER THIS SECTION TO ANY SUCH
FINANCIAL INSTITUTION EXCEED 20 PER CENTUM OF THE TOTAL AMOUNT OF THE
LOANS, ADVANCES OF CREDIT, AND PURCHASES MADE BY SUCH FINANCIAL
INSTITUTION FOR SUCH PURPOSE  ...  "  ACT OF JUNE 27, 1934, C. 847, 48
STAT. 1246. 

FN2  UNITED STATES V. MAYER, 235 U.S. 55, 66; CF. WHEELER LUMBER CO.
V. UNITED STATES, 281 U.S. 572, 577; INDIAN MOTOCYCLE CO. V. UNITED
STATES, 283 U.S. 570, 573. 

FN3  ACT OF MAY 27, 1926, C. 406, 44 STAT. 667, 11 U.S.C. SEC.
104(B)(7).  THIS SECTION HAS BEEN AMENDED BY THE ACT OF JUNE 22, 1938,
C. 575, SEC. 64, 52 STAT. 874. 

FN4  ACT OF AUGUST 23, 1935, C. 614, SEC. 344(A), 49 STAT. 722. 

FN5  THE PURPOSE OF THE AMENDMENT WAS SAID TO BE "CLARIFYING."  SEN.
REP. NO. 1007 ON H.R. 7617, 74TH CONGRESS, 1ST SESSION, P. 24.  THE
HOUSE REPORT MERELY STATED ITS SUBSTANCE.  H.R. REP. NO. 1822 ON H.R.
7617, 74TH CONGRESS, 1ST SESSION, P. 57.  THE CONGRESSIONAL RECORD IS
SILENT ON THIS CLAUSE OF THE BANKING ACT OF 1935. 

A CORPORATION WHOLLY OWNED BY THE UNITED STATES IS HELD WITHOUT THE
ADVANTAGES OF SEC. 3466.  SLOAN SHIPYARDS V. U.S. FLEET CORPORATION,
258 U.S. 549, 570. 

FN6  CF. WAGNER V. MCDONALD, 96 F.2D 273, 274; IN RE DICKSON'S
ESTATE, 84 P.2D 661, 664; DUPONT DE NEMOURS & CO. V. DAVIS, 264 U.S.
456; CLALLAM COUNTY V. UNITED STATES, 263 U.S. 341; NORTH DAKOTA
MONTANA WHEAT GROWERS ASSN. V. UNITED STATES, 66 F.2D 573, 576-577. 

FN7  THIS IS NOT IN ACCORD WITH THE PRACTICE UNDER TITLE I OF THE
NATIONAL HOUSING ACT.  THE ACT IS ADMINISTERED SO AS TO CREATE AN
INSURANCE RESERVE FOR EACH APPROVED FINANCIAL INSTITUTION OF NOT TO
EXCEED THE AUTHORIZED PERCENTAGE OF THE TOTAL AMOUNT OF QUALIFIED
PAPER.  CF. REGULATIONS, FEDERAL HOUSING ADMINISTRATION, PROPERTY
IMPROVEMENT LOANS, 3 FEDERAL REGISTER 358, REGULATION NUMBER 17. 

FN8  "THE QUESTION OF THE FINANCIAL CONDITION OF THE BORROWER IS LEFT
TO THE REASONABLE JUDGMENT OF THE INSURED INSTITUTION AS A CREDIT
MATTER.  THE BORROWER MUST FURNISH THE LENDING INSTITUTION A FINANCIAL
OR CREDIT STATEMENT, APPROVED AS TO FORM BY THE ADMINISTRATOR, WHICH IN
THE JUDGMENT OF THE INSURED INSTITUTION SHOWS THE BORROWER TO BE
SOLVENT, WITH REASONABLE ABILITY TO PAY THE OBLIGATION AND IN OTHER
RESPECTS A REASONABLE CREDIT RISK IN VIEW OF THE INSURANCE PROVIDED BY
THE NATIONAL HOUSING ACT." 

FN9  CF. LESLIE V. COMPTON, 103 KAN. 92; 172 P. 1015; MARSH V.
HAYFORD, 80 ME. 97; 13 A. 271; MCPHERSON V. MEEK, 30 MO. 345. 

FN10  CF. INSLEY V. GARSIDE, 121 F. 699, 702.  CF. ALSO SEC. 57(I)
WHICH PROVIDES THAT "WHENEVER A CREDITOR, WHOSE CLAIM AGAINST A
BANKRUPT ESTATE IS SECURED BY THE INDIVIDUAL UNDERTAKING OF ANY PERSON,
FAILS TO PROVE SUCH CLAIM, SUCH PERSON MAY DO SO IN THE CREDITOR'S
NAME, AND IF HE DISCHARGE SUCH UNDERTAKING IN WHOLE OR IN PART HE SHALL
BE SUBROGATED TO THAT EXTENT TO THE RIGHTS OF THE CREDITOR."  ACT OF
JULY 1, 1898, C. 541, SEC. 57, 30 STAT. 560, 11 U.S.C. SEC. 93. 

FN11  SEE NOTE 3, SUPRA. 

FN12  THE GOVERNMENT SUMMARIZES THE LEGISLATIVE BACKGROUND AS
FOLLOWS:  "THE ACT OF JULY 31, 1789, SEC. 21, C. 5, 1 STAT. 29, 42,
FIRST GAVE THE UNITED STATES PRIORITY BUT WAS LIMITED TO DEBTS DUE ON
BONDS FOR DUTIES.  THE ACT OF MAY 2, 1792, SEC. 18, C. 27, 1 STAT. 259,
263, ALLOWED SURETIES WHO PAID THEIR DEBTS TO THE UNITED STATES TO
EXERCISE THEIR PRIORITY.  THE ACT OF MARCH 3, 1797, SEC. 5, C. 20, 1
STAT. 512, 515, EXTENDED THE PRIORITY TO ALL DEBTS DUE FROM ANY
PERSON.  THE ACT OF MARCH 2, 1799, SEC. 65, C. 22, 1 STAT. 627, 676,
APPLIED TO BONDS FOR DUTIES.  R.S., SEC. 3466 IS DERIVED FROM THE ACTS
OF 1797AND 1799."    FN13  UNITED STATES V. FISHER, 2 CRANCH 358;
HARRISON V. STERRY, 5 CRANCH 289, 298-299; UNITED STATES V. STATE BANK,
6 PET. 29, 35; BEASTON V. FARMERS' BANK, 12 PET. 102, 134; LEWIS V.
UNITED STATES, 92 U.S. 618, 621; BRAMWELL V. U.S. FIDELITY & GUARANTY
CO., 269 U.S. 483, 487; PRICE V. UNITED STATES, 269 U.S. 492, 500. 

FN14  BEASTON V. FARMERS' BANK, SUPRA. 

FN15  MELLON V. MICHIGAN TRUST CO., 271 U.S. 236, 239.    FN16  SLOAN
SHIPYARDS V. U.S. FLEET CORP., 258 U.S. 549, 570.  EVEN THOUGH PRIVATE
PARTIES MIGHT HAVE PARTICIPATED IN STOCK OWNERSHIP UNDER THE LAW.  SEE
P. 565. 

FN17  MELLON V. MICHIGAN TRUST CO., SUPRA, 240. 

FN18  UNITED STATES V. GUARANTY TRUST CO., 280 U.S. 478, 485-86. 

FN19  WHITE V. STUMP, 266 U.S. 310, 313; IN RE C.H. EARLE, INC., 2
F.SUPP.  15, AFFIRMED ON THE OPINION BELOW, 65 F.2D 1013.  CF. SPOKANE
COUNTY V. UNITED STATES, 279 U.S. 80, 93; UNITED STATES V. OKLAHOMA,
261 U.S. 253, 260, AS TO RECEIVERSHIP PROCEEDINGS. 

THE LOWER COURTS HAVE DIVIDED UPON THE ISSUE WHETHER A FEDERAL
HOUSING ADMINISTRATION CLAIM IS ENTITLED TO PRIORITY.  PRIORITY HAS
BEEN GIVEN IN WAGNER V. MCDONALD, 96 F.2D 273; IN RE WILSON, 23
F.SUPP.  236; IN RE T.N. WILSON, INC., 24 F.SUPP.  651; CF. IN RE
DICKSON'S ESTATE, 84 P.2D 661.  PRIORITY HAS BEEN DENIED IN IN RE
HANSEN BAKERIES, INC., 103 F.2D 665; FEDERAL HOUSING ADMINISTRATOR V.
MOORE, 90 F.2D 32; IN RE STAMFORD AUTO SUPPLY CO., 25 F.SUPP.  530; IN
RE MILLER, 25 F.SUPP.  336; CF. PAUL V. PAUL LIGHTING FIXTURE CO., 13
OHIO OP. 27.  THE ASSIGNMENT WAS MADE PRIOR TO BANKRUPTCY OR INSOLVENCY
IN THE WAGNER AND DICKSON CASES.  IN THE WILSON AND T.N. WILSON, INC.,
CASES THE TIME OF ASSIGNMENT IS UNCERTAIN.  IN THE REMAINING CASES IT
CAME AFTER BANKRUPTCY OR INSOLVENCY. 

FN20  MUELLER V. NUGENT, 184 U.S. 1, 14; MAY V. HENDERSON, 268 U.S.
111, 117. 

FN21  BRAMWELL V. U.S. FIDELITY & GUARANTY CO., 269 U.S. 483, 490. 

THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :




RORICK V. COMM'RS, 307 U.S. 208 


NO. 554.  ARGUED MARCH 28, 29, 1939.  - DECIDED MAY 15, 1939.  - 24
F.SUPP.  458, VACATED. 


A SUIT BY BONDHOLDERS OF A STATE DRAINAGE DISTRICT TO RESTRAIN THE
ENFORCEMENT OF STATE STATUTES EFFECTING CHANGES IN RATES, COLLECTION
AND DISPOSITION OF TAXES ON LANDS OF THE DISTRICT, AND AUTHORITY TO
ISSUE BONDS, ETC., UPON THE GROUND THAT SUCH CHANGES UNCONSTITUTIONALLY
IMPAIR THE OBLIGATIONS OF THE PLAINTIFFS' CONTRACTS, CAN NOT BE TRIED
UNDER JUD.  CODE SEC. 266 BY A DISTRICT COURT OF THREE JUDGES, NOR BE
APPEALED DIRECTLY TO THIS COURT, THE STATUTES ATTACKED NOT BEING OF
GENERAL APPLICATION, BUT AFFECTING EXCLUSIVELY THE PARTICULAR DISTRICT
OF THE STATE.  P. 211. 

JURISDICTION IS NOT CONFERRED IN SUCH A CASE BY JOINING AS DEFENDANTS
STATE OFFICIALS WHOSE DUTIES UNDER THE STATUTES IN QUESTION ARE OF
LOCAL, NOT OF STATE-WIDE, CONCERN. 

RORICK ET AL. V. BOARD OF COMM'RS OF EVERGLADES DRAINAGE DIST.  ET
AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF FLORIDA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, CONSTITUTED OF THREE
JUDGES, WHICH DISMISSED A SUIT SEEKING AN INJUNCTION AGAINST THE
ENFORCEMENT OF CERTAIN FLORIDA STATUTES ALLEGED TO BE
UNCONSTITUTIONAL.  SEE, ALSO, S.C., 57 F.2D 1058.  THIS COURT, FINDING
ITSELF WITHOUT JURISDICTION, VACATES THE DECREE AND REMANDS THE CASE TO
THE DISTRICT COURT FOR FURTHER PROCEEDINGS TO BE TAKEN INDEPENDENTLY OF
JUD.  CODE SEC. 266. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON APPEAL UNDER SEC. 238 OF THE JUDICIAL CODE AS
AMENDED, 28 U.S.C. SEC. 345, TO REVIEW A DECREE OF A DISTRICT COURT OF
THREE JUDGES CONVENED UNDER SEC. 266 OF THE JUDICIAL CODE AS AMENDED,
28 U.S.C. SEC. 380, DENYING AN INTERLOCUTORY INJUNCTION AND DISMISSING
THE BILL AND SUPPLEMENTAL BILLS.  THE BILLS CHALLENGED THE VALIDITY OF
CERTAIN FLORIDA STATUTES AS IMPAIRMENTS OF THE OBLIGATION OF CONTRACT
BETWEEN THE BOARD OF COMMISSIONERS OF EVERGLADES DRAINAGE DISTRICT AND
THE APPELLANTS, AS HOLDERS OF SOME OF ITS OUTSTANDING BONDS.  THE
DECREE OF THE DISTRICT COURT WAS BASED ON ITS CONCEPTION OF THE
APPLICABILITY OF ERIE R. CO. V. TOMPKINS, 304 U.S. 64, BUT THIS AND
OTHER QUESTIONS ARE NOT NOW OPEN FOR CONSIDERATION IF SEC. 266 DOES NOT
COVER A SITUATION LIKE THE PRESENT.  IF THERE BE A JURISDICTIONAL
BARRIER HERE, IT BINDS US THOUGH NOT INVOKED BY THE APPELLEES. 

THE RECORD IS SINGULARLY OBSCURE.  THIS LITIGATION, WHICH HAS
EXTENDED OVER EIGHT YEARS, IS BUT ONE PHASE OF A COMPLICATED
CONTROVERSY PURSUED IN BOTH STATE AND FEDERAL COURTS. 

THE BILL WAS FILED ON MAY 19, 1931.  A SUPPLEMENTAL BILL WAS FILED
JULY 4, 1931.  THE PRAYERS OF THE BILLS WERE AMENDED ON NOVEMBER 5,
1931.  A DISTRICT COURT OF THREE JUDGES WAS CONVENED ON NOVEMBER 14,
1931.  ON SEPTEMBER 17, 1932, ORDERS WERE ENTERED DENYING A MOTION TO
DISMISS, AND GRANTING AN INTERLOCUTORY INJUNCTION CONDITIONED ON THE
FILING OF A BOND FOR $50,000.  ANSWERS WERE FILED IN OCTOBER AND
NOVEMBER, 1932.  THE REQUIRED BOND WAS NOT GIVEN AND ON FEBRUARY 23,
1933 AN ORDER WAS ENTERED THAT THE INTERLOCUTORY INJUNCTION SHOULD BE
VACATED.  THE MATTER THEN LAY DORMANT UNTIL A SECOND SUPPLEMENTAL BILL
WAS FILED ON JULY 19, 1937.  IT WAS NOT UNTIL AUGUST 2, 1938, THAT THE
ORDER SOUGHT HERE TO BE REVIEWED, DENYING THE MOTION FOR AN
INTERLOCUTORY INJUNCTION AND DISMISSING THE BILL, WAS MADE. 

THE FACTS WILL BE SUMMARIZED ONLY TO THE EXTENT NECESSARY TO EXPOSE
THE JURISDICTIONAL PROBLEM.  THE EVERGLADES DRAINAGE DISTRICT
(HEREAFTER CALLED DISTRICT), COMPRISING A LARGE ACREAGE IN THE SOUTHERN
PART OF FLORIDA, WAS ESTABLISHED BY CHAPTER 6456, LAWS OF FLORIDA, ACTS
OF 1913.  THE ADMINISTRATION OF THE DISTRICT WAS ENTRUSTED TO A BOARD
OF COMMISSIONERS (HEREAFTER CALLED THE BOARD), A BODY CORPORATE.  THE
LANDS WERE ORIGINALLY PART OF A GRANT MADE BY CONGRESS TO FLORIDA IN
1850 WHEREBY FLORIDA UNDERTOOK TO APPLY THE LANDS AND PROCEEDS DERIVED
FROM THEM TO DRAINAGE AND RECLAMATION PURPOSES.  IN FULFILLMENT OF THIS
OBLIGATION FLORIDA, IN 1855(CHAPTER 610, LAWS OF FLORIDA, ACTS OF
1855), VESTED THE LANDS IN TRUSTEES OF THE INTERNAL IMPROVEMENT FUND
(HEREAFTER CALLED TRUSTEES) CONSISTING OF DESIGNATED STATE OFFICIALS. 
SUBSEQUENT LEGISLATION FOR THE DISTRICT MADE NUMEROUS CHANGES AFFECTING
ITS FINANCIAL ADMINISTRATION AND THE RELATIONS BETWEEN THE DISTRICT AND
THE TRUSTEES (CHAPTERS 13,633, 14,717; 17,902, LAWS OF FLORIDA, 1929,
1931 AND 1937).  THE CHANGES CONCERNED RATES OF TAXES, DISPOSITION OF
THEIR PROCEEDS, PROCEDURE IN CASES OF TAX DELINQUENCY, AND
AUTHORIZATION OF BOND ISSUES. 

APPELLANTS SUED AS HOLDERS OF BONDS ISSUED PRIOR TO THESE LATTER
STATUTES CLAIMING THAT THEY IMPAIRED OBLIGATIONS CREATED BY SUCH BONDS
AS DEFINED BY SEC. 23 OF THE ACT OF 1913 WHICH SPECIFICALLY PROVIDED
THAT THE TERMS OF THAT ACT SHOULD CONSTITUTE "AN IRREPEALABLE CONTRACT"
BETWEEN BONDHOLDERS AND THE DISTRICT.  IN SUBSTANCE THE BILL AND THE
SUPPLEMENTAL BILLS ALLEGED A REDUCTION OF THE AVAILABLE TAXES BELOW
THOSE IN EFFECT AT THE TIME THE BONDS WERE ISSUED, AN ADVERSE CHANGE IN
THE DEBT SERVICE, AND A DIVERSION OF REVENUES TO PURPOSES OTHER THAN
THOSE REQUIRED BY THE ACT OF 1913.  THE BILLS ALSO COMPLAINED OF
IMPORTANT CHANGES EFFECTED BY THE LATER ACTS REGARDING TAX
DELINQUENCIES ON THE LANDS IN THE DISTRICT.  IT WAS ALLEGED THAT UNDER
THE EARLIER ACT LANDS ON WHICH TAXES WERE DELINQUENT WERE TO BE SOLD AT
AUCTION AND, FOR WANT OF BIDDERS FOR THE AMOUNT OF TAXES PLUS COSTS,
WERE TO BE BID OFF TO TRUSTEES WHO WERE UNDER A DUTY TO PAY FOR TAX
CERTIFICATES AS WELL AS THE DRAINAGE TAXES IN THE FUTURE.  VIOLATION OF
CONTRACTUAL RIGHTS WERE ALLEGED IN THAT TRUSTEES HAD CEASED PAYING FOR
THE TAX CERTIFICATES AS WELL AS THE DRAINAGE TAXES, AND THAT SEC. 65 OF
THE 1931 STATUTE HAD DECLARED THAT TRUSTEES HELD THE CERTIFICATES IN
TRUST FOR THE DISTRICT AND REQUIRED THEM TO TRANSFER THE CERTIFICATES
TO THE DISTRICT.  FURTHER VIOLATIONS OF THE CONTRACT WERE ATTRIBUTED TO
POWERS GIVEN TO THE DISTRICT, AFTER 1913, WHEREBY IT WAS AUTHORIZED TO
COMPROMISE TAXES, TO ACCEPT BONDS FOR REDEMPTION OF LANDS, AND TO
CANCEL TAX LIENS ON LANDS WHICH CAME INTO THE OWNERSHIP OF THE UNITED
STATES.  FINALLY, A CLAIM OF IMPAIRMENT OF CONTRACT WAS BASED ON
CHANGES IN THE MEMBERSHIP OF THE DISTRICT AFTER 1913. 

THE BOARD OF COMMISSIONERS, THE TRUSTEES AND VARIOUS COUNTY TAX
OFFICIALS WERE NAMED AS DEFENDANTS IN THE SUIT.  THE BILLS SOUGHT TO
ENJOIN THE DEFENDANTS DISTRIBUTIVELY, AND WITH MUCH PARTICULARITY, FROM
EFFECTUATING THE VARIOUS MODIFICATIONS MADE BY THE ACTS OF 1929, 1931
AND 1937 CONCERNING THE RATES OF TAXES, THE DISPOSITION OF THEIR
PROCEEDS, THE PROCEDURE IN CASES OF TAX DELINQUENCY, THE AUTHORIZATION
OF BOND ISSUES, AND THE INTERNAL RELATIONS BETWEEN THE DISTRICT AND THE
TRUSTEES AS ALL THESE WERE CLAIMED TO BE ORIGINALLY DEFINED BY THE ACT
OF 1913. 

THIS APPEAL IS PROPERLY HERE ONLY IF THE PRESENT SUIT REQUIRED THE
CONVENING OF A DISTRICT COURT OF THREE JUDGES UNDER SEC. 266.  WE DO
NOT THINK THAT THIS WAS SUCH A SUIT, BECAUSE THE STATE STATUTES FROM
WHICH RELIEF WAS SOUGHT DO NOT CONSTITUTE LEGISLATION "OF GENERAL
APPLICATION," EX PARTE COLLINS, 277 U.S. 565. 

EX PARTE COLLINS, SUPRA, REINFORCED BY EX PARTE PUBLIC NATIONAL BANK,
278 U.S. 101, AUTHORITATIVELY ESTABLISHED THE RESTRICTED CLASS OF CASES
TO WHICH THE SPECIAL PROCEDURE OF SEC. 266 MUST BE CONFINED.  "DESPITE
THE GENERALITY OF THE LANGUAGE" OF THAT SECTION, IT IS NOW SETTLED
DOCTRINE THAT ONLY A SUIT INVOLVING "A STATUTE OF GENERAL APPLICATION"
AND NOT ONE AFFECTING A "PARTICULAR MUNICIPALITY OR DISTRICT" CAN
INVOKE SEC. 266.  PLAINLY, THE MATTER HERE IN CONTROVERSY IS NOT ONE OF
STATEWIDE CONCERN BUT AFFECTS EXCLUSIVELY A PARTICULAR DISTRICT IN
FLORIDA.  THIS COURT IN EFFECT SO HELD IN DENYING A MOTION FOR LEAVE TO
FILE A PETITION FOR WRIT OF MANDAMUS TO CONVENE A COURT UNDER SEC. 266
MADE BY THE BOARD OF COMMISSIONERS IN A SUIT BY A BONDHOLDER CLAIMING
IMPAIRMENT OF THE OBLIGATION OF CONTRACTS EXISTING UNDER THE 1913 ACT. 
EX PARTE EVERGLADES DRAINAGE DISTRICT, 293 U.S. 521.  THE PRESENT SUIT
DIFFERS FROM THE EARLIER CASE IN THAT HERE THE TRUSTEES OF THE INTERNAL
IMPROVEMENT FUND WERE MADE DEFENDANTS.  BUT WHAT IS DECISIVE UNDER SEC.
266 IS NOT THE FORMAL STATUS OF THE OFFICIALS SUED BUT THE SPHERE OF
THEIR FUNCTIONS REGARDING THE MATTER IN ISSUE.  AN OFFICIAL THOUGH
LOCALIZED BY HIS GEOGRAPHIC ACTIVITIES AND THE MODE OF HIS SELECTION
MAY, WHEN HE ENFORCES A STATUTE WHICH "EMBODIES A POLICY OF STATEWIDE
CONCERN," BE PERFORMING A STATE FUNCTION WITHIN THE MEANING OF SEC.
266.  SPIELMAN MOTOR SALES CO. V. DODGE, 295 U.S. 89.  CONVERSELY A
STATE OFFICIAL CHARGED WITH DUTIES UNDER A STATUTE NOT OF STATEWIDE
CONCERN IS NOT A STATE FUNCTIONARY WITHIN THE PURPOSES FOR WHICH SEC.
266 WAS DESIGNED.  WHAT WAS MATTER OF LOCAL CONCERN IN EX PARTE
EVERGLADES DRAINAGE DISTRICT, SUPRA, - THE ADMINISTRATION OF THE
AFFAIRS OF THE DISTRICT - REMAINS MATTER OF LOCAL CONCERN IN THE
PRESENT SUIT.  THE NATURE OF THE CONTROVERSY - LEGISLATION AFFECTING A
LOCALITY "AS AGAINST A POLICY OF STATEWIDE CONCERN" - HAS REMAINED
UNCHANGED EVEN THOUGH THE PRESENT BILLS MADE IT PERTINENT TO JOIN THE
TRUSTEES.  THIS SUIT THUS FAILS TO SATISFY AN ESSENTIAL REQUIREMENT OF
SEC. 266. 

SINCE THE TIME FOR APPEAL TO THE CIRCUIT COURT OF APPEALS HAS
EXPIRED, AND SINCE THE JURISDICTIONAL PROBLEM DETERMINED IN THIS CASE
HAD NOT BEEN FULLY SETTLED PRIOR TO THIS DECISION, WE WILL NOT
TERMINATE THE LITIGATION BY DISMISSING THE APPEAL BUT, IN ACCORDANCE
WITH THE PRACTICE FOLLOWED IN OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA
PACKING CO., 292 U.S. 386, WE WILL ORDER THE DECREE VACATED AND THE
CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS TO BE
TAKEN INDEPENDENTLY OF SEC. 266 OF THE JUDICIAL CODE.  DECREE VACATED. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DISPOSITION
OF THIS CASE. 
..END :













UNITED STATES V. POWERS, 307 U.S. 214 


NO. 687.  ARGUED APRIL 21, 1939.  - DECIDED MAY 15, 1939.  - REVERSED. 


1.  WHETHER AN OFFENSE AGAINST A TEMPORARY ACT MAY BE PUNISHED AFTER
THE ACT HAS EXPIRED DEPENDS UPON THE LEGISLATIVE PURPOSE.  P. 216. 

2.  AN ACT OF CONGRESS, DESIGNED TO PROTECT INTERSTATE AND FOREIGN
COMMERCE FROM "CONTRABAND" OIL AND TO ENCOURAGE OIL CONSERVATION AND
CONTAINING ADMINISTRATIVE AND PUNITIVE PROVISIONS FOR ITS EFFECTUATION,
PROVIDED THAT IT SHOULD "CEASE TO BE IN EFFECT ON JUNE 16, 1937."  IT
WAS AMENDED JUNE 14, 1937 BY AN ACT WHICH DECLARED ITS PURPOSE TO
CONTINUE THE EARLIER ACT UNTIL JUNE 30, 1939 AND WHICH MERELY CHANGED
THE DATE OF EXPIRATION ACCORDINGLY. 

HELD, A CLEAR INDICATION OF PURPOSE TO TREAT THE ENTIRE ACT AS IF BY
ITS ORIGINAL TERMS IT WAS TO EXPIRE ON THE DAY TO WHICH IT WAS SO
EXTENDED; AND THAT VIOLATIONS OF THE ACT COMMITTED PRIOR TO THE
ORIGINAL DATE OF EXPIRATION WERE INDICTABLE THEREAFTER.  P. 217. 

3.  ARTICLE I, SEC. 9, CL. 3 OF THE FEDERAL CONSTITUTION, PROSCRIBING
EX POST FACTO LAWS, DOES NOT BAR SUCH PROSECUTION.  P. 218. 

4.  A STATUTE SUSCEPTIBLE OF MORE THAN ONE INTERPRETATION SHOULD BE
GIVEN THAT WHICH WILL MAKE IT EFFECTIVE.  P. 217. 

UNITED STATES V. POWERS ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF TEXAS. 

APPEAL UNDER THE CRIMINAL APPEALS ACT AND SEC. 238 JUD.  CODE, FROM A
JUDGMENT SUSTAINING DEMURRERS TO AN INDICTMENT AND MOTIONS TO QUASH
IT. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL, UNDER THE CRIMINAL APPEALS ACT OF MARCH 2, 1907,
18 U.S.C. SEC. 682, AND SEC. 238 OF THE JUDICIAL CODE, 28 U.S.C. SEC.
345, FROM A JUDGMENT OF A DISTRICT COURT SUSTAINING DEMURRERS AND
MOTIONS OF THE APPELLEES TO QUASH AN INDICTMENT. 

THE INDICTMENT, FILED SEPTEMBER 17, 1938, CHARGES APPELLEES WITH
VIOLATIONS OF THE CONNALLY (HOT OIL) ACT OF FEBRUARY 22, 1935, AS
AMENDED, 15 U.S.C. SEC. 715 ET SEQ., AND WITH CONSPIRACY TO VIOLATE
SUCH ACT, 18 U.S.C. SEC. 88.  THE VARIOUS SUBSTANTIVE COUNTS CHARGE
THAT APPELLEES, IN VIOLATION OF THE ACT, AS AMENDED, TRANSPORTED IN
INTERSTATE COMMERCE FROM THE CONROE OIL FIELD IN MONTGOMERY COUNTY,
STATE OF TEXAS, TO MARCUS HOOK, PA. CERTAIN PETROLEUM PRODUCTS IN
EXCESS OF THE AMOUNTS PERMITTED TO BE PRODUCED, TRANSPORTED, AND
WITHDRAWN FROM STORAGE UNDER THE LAWS OF TEXAS AND THE REGULATIONS AND
ORDERS PRESCRIBED BY THE RAILROAD COMMISSION OF TEXAS.  THESE
TRANSPORTATIONS ARE ALLEGED TO HAVE BEEN MADE ON VARIOUS DATES FROM
NOVEMBER 4, 1935, TO MARCH 20, 1936.  THE CONSPIRACY COUNT CHARGES A
CONSPIRACY BY APPELLEES TO VIOLATE THE ACT, AS AMENDED, BY PRODUCING,
TRANSPORTING, AND WITHDRAWING FROM STORAGE PETROLEUM IN EXCESS OF THE
AMOUNTS PERMITTED TO BE PRODUCED, TRANSPORTED, AND WITHDRAWN FROM
STORAGE UNDER THE LAWS OF TEXAS AND THE REGULATIONS AND ORDERS
PROMULGATED THEREUNDER.  THESE TRANSPORTATIONS ARE ALLEGED TO HAVE BEEN
MADE BETWEEN THE SAME PLACES ALLEGED IN THE SUBSTANTIVE COUNTS, ON
VARIOUS DATES FROM ON OR ABOUT SEPTEMBER 4, 1935, TO ON OR ABOUT MARCH
15, 1937. 

SEC. 13 OF THE ACT OF FEBRUARY 22, 1935, PROVIDED THAT "THIS ACT
SHALL CEASE TO BE IN EFFECT ON JUNE 16, 1937."  THIS SECTION WAS
AMENDED BY THE ACT OF JUNE 14, 1937, "BY STRIKING OUT 'JUNE 16, 1937'
AND INSERTING IN LIEU THEREOF 'JUNE 30, 1939'."  NO OTHER AMENDMENTS TO
THE ACT WERE MADE. 

THE SINGLE QUESTION BEFORE US IS WHETHER VIOLATIONS OF THIS ACT
ALLEGED TO HAVE BEEN COMMITTED PRIOR TO JUNE 16, 1937, MAY BE
PROSECUTED UNDER AN INDICTMENT RETURNED SUBSEQUENT THERETO.  THE
DISTRICT COURT BY SUSTAINING THE DEMURRERS AND MOTIONS TO QUASH
ANSWERED THAT QUESTION IN THE NEGATIVE.  WE THINK IT ERRED. 

THE CONGRESS ALONE MAY DECLARE WHETHER THOSE WHO, BEFORE JUNE 16,
1937, VIOLATED THE ACT MAY BE PROSECUTED THEREAFTER.  THE QUESTION IS
ONE OF THE PURPOSE OF CONGRESS.  EXPLICIT PROVISIONS IN THE AMENDMENT
PRESERVING THE RIGHT OF PROSECUTION AFTER THE DATE ORIGINALLY SET FOR
EXPIRY OF THE ACT WOULD HAVE MADE THAT PURPOSE CLEAR BEYOND QUESTION. 
BUT THE SURROUNDING CIRCUMSTANCES HERE MAKE THIS PURPOSE AS CLEAR AND
AS UNEQUIVOCAL AS AN EXPLICIT PROVISION.  THIS IS AN ACT DESIGNED TO
PROTECT INTERSTATE AND FOREIGN COMMERCE FROM THE DIVERSION AND
OBSTRUCTION OF, AND THE BURDEN AND HARMFUL EFFECT UPON, SUCH COMMERCE
CAUSED BY CONTRABAND OIL, (AS DEFINED IN THE ACT) AND TO ENCOURAGE THE
CONSERVATION OF DEPOSITS OF CRUDE OIL WITHIN THE UNITED STATES. 
ADMINISTRATIVE MACHINERY IS PROVIDED FOR THE CONTROL OF SHIPMENT OR
TRANSPORTATION OF CONTRABAND OIL IN INTERSTATE COMMERCE.  SECS. 4, 5
AND 9.  SUCH SHIPMENT OR TRANSPORTATION IS PROHIBITED, UNLESS ON
APPROPRIATE FINDINGS THE PRESIDENT, BY PROCLAMATION, LIFTS THE
PROHIBITION.  SECS. 3 AND 4.  PENALTIES ARE PROVIDED FOR VIOLATIONS OF
THE ACT OR ANY REGULATIONS PRESCRIBED THEREUNDER.  SECS. 6 AND 7.  AND
SEC. 10 IMPLEMENTS THE ACT WITH CIVIL AND CRIMINAL PROCEDURES TO
ENFORCE ITS SANCTIONS.  THE ACT IS THUS A SELF-SUSTAINED AND ORGANIC
WHOLE, EQUIPPED TO EFFECTUATE A DECLARED POLICY OF THE CONGRESS.  BY
ITS ORIGINAL TERMS IT WOULD HAVE EXPIRED JUNE 16, 1937.  BUT IT NEVER
EXPIRED, FOR ON JUNE 14, 1937, THE WHOLE ACT WAS CONTINUED IN EFFECT
UNTIL JUNE 30, 1939.  ITS SUBSTANTIVE PHASES WERE NOT ALTERED ONE WHIT
OR TITTLE; ITS SANCTIONS WERE NEITHER REDUCED NOR INCREASED.  PRECISELY
THE SAME ACTS CONTINUE TO BE PROHIBITED AFTER THE AMENDMENT AS BEFORE. 
THE AMENDMENT MERELY PERPETUATED THE ENTIRE ACT FOR ANOTHER TERM. 

IN VIEW OF THESE CIRCUMSTANCES, IT SEEMS CLEAR BEYOND QUESTION THAT
IT WAS THE PURPOSE OF CONGRESS, EXPRESSED IN THE AMENDMENT OF JUNE 14,
1937, TO TREAT THIS ACT PRECISELY IN THE SAME WAY AS IF BY ITS ORIGINAL
TERMS IT WAS TO EXPIRE ON JUNE 30, 1939.  DUE TO THE AMENDMENT, THE ACT
HAS NEVER CEASED TO BE IN EFFECT.  NO NEW LAW WAS CREATED; NO OLD ONE
WAS REPEALED.  WITHOUT HIATUS OF ANY KIND, THE ORIGINAL ACT WAS GIVEN
EXTENDED LIFE.  THERE WAS NO FIRST CONNALLY ACT FOLLOWED BY A SECOND
CONNALLY ACT.  DURING THE PERIODS IN QUESTION THERE WAS BUT ONE ACT. 
NO EVIDENCE HAS BEEN BROUGHT TO OUR ATTENTION, AND WE HAVE FOUND NONE,
THAT CONGRESS PROPOSED TO WAIVE OR TO PARDON VIOLATIONS WHICH OCCURRED
PRIOR TO JUNE 16, 1937, BUT WHICH WERE NOT PROSECUTED UNTIL SUBSEQUENT
THERETO. 

THERE IS A SECONDARY CONSIDERATION WHICH POINTS TO THE SAME
CONCLUSION.  IF THE APPELLEES ARE RIGHT IN THEIR CONTENTION, A
TEMPORARY ACT SUCH AS THIS ONE WOULD LOSE, AS A PRACTICAL MATTER, SOME
OF ITS SANCTIONS.  VIOLATIONS COULD OCCUR WITH IMPUNITY MONTHS BEFORE
ITS EXPIRY, FOR IN PRACTICE THERE FREQUENTLY IS AN UNAVOIDABLY
SUBSTANTIAL LAG BETWEEN VIOLATION AND PROSECUTION.  THE STATUTE SHOULD
NOT BE SO CONSTRUED IF ANOTHER INTERPRETATION WILL MAKE IT EFFECTIVE. 
AS THIS COURT SAID IN BIRD V. UNITED STATES, 187 U.S. 118, 124, "THERE
IS A PRESUMPTION AGAINST A CONSTRUCTION WHICH WOULD RENDER A STATUTE
INEFFECTIVE OR INEFFICIENT OR WHICH WOULD CAUSE GRAVE PUBLIC INJURY OR
EVEN INCONVENIENCE."  WE ARE UNWILLING TO CONCLUDE THAT ALTHOUGH THE
SAME ACTS CONTINUE TO BE PROHIBITED AFTER JUNE 16, 1937, AS BEFORE,
VIOLATIONS COMMITTED PRIOR TO THAT DATE ARE NOT PUNISHABLE THEREAFTER. 

IN VIEW OF THIS CONCLUSION, WE DO NOT REACH THE NUB OF APPELLEES'
ARGUMENT BASED ON CHIEF JUSTICE MARSHALL'S STATEMENT IN THE
IRRESISTIBLE, 7 WHEAT.  551, 552 "THAT AN OFFENSE AGAINST A TEMPORARY
ACT CANNOT BE PUNISHED AFTER THE EXPIRATION OF THE ACT, UNLESS A
PARTICULAR PROVISION BE MADE BY LAW FOR THE PURPOSE."  FOR IN THIS
CASE, AS WE HAVE SAID, THE ACT OF FEBRUARY 22, 1935, DID NOT EXPIRE ON
JUNE 16, 1937. 

BUT EVEN IF WE ASSUME THE VALIDITY OF THAT STATEMENT, IT SEEMS TO US
CLEAR THAT THOUGH THE ACT BE TREATED AS HAVING EXPIRED OR TERMINATED ON
JUNE 16, 1937, THE RESULT IS THE SAME.  FOR IN THIS CASE "PARTICULAR
PROVISION" HAS BEEN MADE "BY LAW FOR THE PURPOSE" OF EXTENDING THE
ENFORCEMENT MACHINERY WITH REFERENCE TO PRIOR CRIMINAL VIOLATIONS.  THE
"PARTICULAR PROVISION" WAS THE AMENDMENT OF JUNE 14, 1937, EXTENDING
THE EFFECTIVE PERIOD OF THE ACT.  THAT AMENDMENT WAS PASSED PRIOR TO
THE ORIGINAL EXPIRATION DATE.  WHEN READ IN LIGHT OF THE TITLE OF THE
AMENDATORY STATUTE, VIZ.  "AN ACT TO CONTINUE IN EFFECT UNTIL JUNE 30,
1939, THE ACT  ...  APPROVED FEBRUARY 22, 1935," THE STATEMENT OF
PURPOSE BECOMES PLAIN AND UNAMBIGUOUS.  IF THE AMENDMENT OF JUNE 14,
1937, HAD MERELY "EXTENDED" THE DURATION, OR POSTPONED THE EXPIRATION,
OF SEC. 10 OF THE ACT DEALING WITH CRIMINAL PENALTIES, "PARTICULAR
PROVISION" FOR SUBSEQUENT PROSECUTIONS WOULD HAVE BEEN INDUBITABLY
CLEAR.  THE FACT THAT ALL SECTIONS, INCLUDING SEC. 10, WERE EXTENDED
MAKES IT NONETHELESS PLAIN.  THE WHOLE, THOUGH LARGER THAN ANY OF ITS
PARTS, DOES NOT NECESSARILY OBSCURE THEIR SEPARATE IDENTITIES. 

IN VIEW OF THESE VARIOUS CONSIDERATIONS, WE HOLD THAT THIS
PROSECUTION DOES NOT OFFEND THE PROHIBITION IN ARTICLE I, SEC. 9, CL. 3
OF THE CONSTITUTION AGAINST EX POST FACTO LAWS.  JUDGMENT REVERSED. 
..END :



SPRAGUE V. TICONIC BANK, 307 U.S. 161 


NO. 543.  ARGUED MARCH 28, 1939.  - DECIDED APRIL 24, 1939.  - 99 F.2D
583, REVERSED. 


1.  WHEN A LITIGANT IN THE DISTRICT COURT, THROUGH THE PROSECUTION OF
A SUIT ON HIS OWN BEHALF AND AT HIS OWN EXPENSE, HAS AFFIXED A LIEN ON
EARMARKED FUNDS IN AN INSOLVENT BANK FOR THE REPAYMENT IN FULL, WITH
ORDINARY COSTS AND INTEREST, OF A SUM THERETOFORE DEPOSITED BY HIM IN
TRUST, AND, BY SO DOING, HAS INCIDENTALLY, THROUGH THE PRINCIPLE OF
STARE DECISIS, ESTABLISHED LIKE RIGHTS FOR OTHER DEPOSITORS, NOT
PARTIES TO THE SUIT, BUT IN LIKE SITUATION, IT LIES WITHIN THE POWER OF
THE COURT AS A COURT OF EQUITY TO MAKE THE SUCCESSFUL LITIGANT AN
ALLOWANCE OF COSTS "AS BETWEEN SOLICITOR AND CLIENT," FOR COUNSEL FEES
AND LITIGATION EXPENSES, TO BE PAID OUT OF THE EARMARKED FUNDS.  P.
163. 

2.  COSTS "AS BETWEEN SOLICITOR AND CLIENT" ARE ALLOWED ONLY IN
EXCEPTIONAL CASES, FOR DOMINATING REASONS OF FAIRNESS AND JUSTICE IN
THE CIRCUMSTANCES OF THE PARTICULAR CASE.  P. 167. 

3.  WHILE A MANDATE IS CONTROLLING AS TO THE MATTERS WITHIN ITS
COMPASS, ON THE REMAND THE LOWER COURT IS FREE TO ACT AS TO OTHER
ISSUES.  P. 168. 

4.  THE EQUITABLE RIGHT OF A LITIGANT TO REIMBURSEMENT FOR EXPENSES
(COSTS "AS BETWEEN SOLICITOR AND CLIENT") INCURRED IN A SUCCESSFUL SUIT
REDOUNDING ALSO TO THE BENEFIT OF OTHERS IN LIKE SITUATION, MAY
APPROPRIATELY BE ASSERTED BY SUPPLEMENTAL PETITION, AFTER THE SUIT, IN
OTHER RESPECTS, HAS BEEN FINALLY DISPOSED OF IN THE DISTRICT COURT AND
ON REVIEW.  P. 168. 

THIS RIGHT WAS NOT WAIVED BY FAILURE TO CLAIM IT EXPRESSLY IN THE
ORIGINAL SUIT, NOR WAS IT IMPLIEDLY AN ISSUE; HENCE IT WAS NOT COVERED
BY THE ORIGINAL DECREE AND APPELLATE MANDATES WHICH ALLOWED RECOVERY OF
PRINCIPAL, INTEREST AND ORDINARY COSTS. 

5.  AN APPLICATION TO THE DISTRICT COURT FOR AN ALLOWANCE OF COSTS AS
BETWEEN SOLICITOR AND CLIENT, AT THE FOOT OF THE MAIN DECREE AND NOT
INVOLVING ANY MODIFICATION OF IT, NEED NOT BE MADE BEFORE THE
EXPIRATION OF THE TERM AT WHICH THE DECREE WAS ENTERED.  P. 170. 

SPRAGUE V. TICONIC NATIONAL BANK ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 306 U.S. 623, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
DISTRICT COURT DENYING A PETITION FOR AN ALLOWANCE OF COUNSEL FEES AND
EXPENSES OVER AND ABOVE THE REGULAR TAXABLE COSTS. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE FIRST CIRCUIT WHICH AFFIRMED, 99 F.2D 583, A DECREE OF THE DISTRICT
COURT FOR THE DISTRICT OF MAINE, 23 F.SUPP.  59, DENYING A PETITION FOR
THE ALLOWANCE OF COUNSEL FEES AND EXPENSES OVER AND ABOVE THE REGULAR
TAXABLE COSTS.  CERTIORARI WAS GRANTED, 306 U.S. 623, BECAUSE AN
IMPORTANT QUESTION OF JUDICIAL ADMINISTRATION PERTAINING TO THE
EXERCISE OF FEDERAL EQUITY JURISDICTION WAS RAISED. 

THIS CASE IS ANOTHER PHASE OF A LITIGATION THAT HAS BEEN HERE BEFORE,
TICONIC BANK V. SPRAGUE, 303 U.S. 406, THE CIRCUMSTANCES OF WHICH MUST
BE SUMMARIZED TO LAY BARE THE PROBLEM NOW BEFORE US.  ON MARCH 28,
1931, LOTTIE F. SPRAGUE, THE PETITIONER HERE, DELIVERED $5,022.18 TO
THE TICONIC NATIONAL BANK OF WATERVILLE, MAINE, IN TRUST IN WHICH SHE
AND OTHERS HAD BENEFICIAL INTERESTS.  UNDER THE TRUST AGREEMENT PART OF
THE AMOUNT WAS TO BE DEPOSITED BY THE BANK IN ITS SAVINGS DEPARTMENT. 
THE REST OF THE FUNDS WAS DEPOSITED BY THE BANK IN ITS COMMERCIAL
CHECKING DEPARTMENT, AS WERE OTHER TRUST FUNDS AWAITING INVESTMENT OR
DISTRIBUTION, SECURED BY AN APPROPRIATE AMOUNT OF BONDS SET ASIDE IN
ITS TRUST DEPARTMENT AS REQUIRED BY SEC. 11(K) OF THE AMENDED FEDERAL
RESERVE ACT, 38 STAT. 262, AS AMENDED, 49 STAT. 722.  ON AUGUST 3,
1931, THE PEOPLE'S NATIONAL BANK TOOK OVER ALL THE ASSETS, INCLUDING
THESE EARMARKED BONDS, AND ASSUMED THE INDEBTEDNESS OF THE TICONIC
BANK.  ON MARCH 4, 1933, THE PEOPLE'S BANK CLOSED, AND BOTH BANKS WENT
INTO THE HANDS OF A RECEIVER.  THEREAFTER, ON JULY 29, 1935, THE
PETITIONER AND HER BENEFICIARY FILED A BILL IN THE DISTRICT COURT
AGAINST THE BANKS AND THEIR RECEIVER TO IMPRESS UPON THE PROCEEDS OF
THE BONDS A LIEN FOR THEIR TRUST DEPOSIT.  THE DISTRICT COURT SUSTAINED
THE CLAIM AND ENTERED A DECREE FOR THE DISCHARGE OF THE LIEN WITH
INTEREST FROM THE DATE OF THE FILING OF THE BILL AND PAYMENT TO THE
PLAINTIFFS OF "THEIR TAXABLE COSTS," 14 F.SUPP.  900.  ON APPEAL, THE
CIRCUIT COURT OF APPEALS AT FIRST DISALLOWED INTEREST, 87 F.2D 365, BUT
ON REHEARING AFFIRMED THE DECREE OF THE DISTRICT COURT "WITH COSTS," 90
F.2D 641.  THIS COURT THEN GRANTED CERTIORARI "LIMITED TO THE QUESTION
AS TO THE ALLOWANCE OF INTEREST," 302 U.S. 675.  BEFORE ITS
DISPOSITION, TICONIC BANK V. SPRAGUE, SUPRA, THE PRESENT PROCEEDINGS
WERE BEGUN. 

PETITIONER ALLEGED THAT, BY VINDICATING HER CLAIM TO A LIEN ON THE
PROCEEDS OF THE EARMARKED BONDS TO THE AMOUNT OF HER TRUST FUNDS, SHE
HAD ESTABLISHED AS A MATTER OF LAW THE RIGHT TO RECOVERY IN RELATION TO
FOURTEEN TRUSTS IN SITUATIONS LIKE HER OWN; THAT SHE HAD PROSECUTED THE
LITIGATION SOLELY AT HER OWN EXPENSE; THAT ALTHOUGH THE TOTAL ASSETS OF
THE BANK WERE NOT SUFFICIENT TO SATISFY THE UNSECURED CREDITORS, THE
PROCEEDS OF THE BONDS WERE MORE THAN SUFFICIENT TO DISCHARGE ALL TRUST
OBLIGATIONS; AND SHE THEREFORE PRAYED THE COURT FOR REASONABLE COUNSEL
FEES AND LITIGATION EXPENSES TO BE PAID OUT OF THE PROCEEDS OF THE
BONDS. 

THE DISTRICT COURT HELD THAT IT "HAD NO AUTHORITY TO GRANT THE
PETITION" ON THE GROUND THAT, AFTER THE APPEAL FROM ITS DECREE IN 14
F.SUPP.  900, IT "HAD NO FURTHER FUNCTION TO PERFORM OTHER THAN TO
CARRY OUT THE MANDATE OF THE SUPREME COURT WHEN RECEIVED.  THE MANDATE
FROM THE SUPREME COURT SIMPLY HAD THE EFFECT OF DIRECTING THIS COURT TO
CARRY OUT THE MANDATE OF THE CIRCUIT COURT OF APPEALS WHICH IN TURN,
SIMPLY, IN EFFECT, REQUIRED THIS COURT TO EXECUTE ITS ORIGINAL FINAL
DECREE BY ISSUING ITS EXECUTION FOR A CERTAIN SUM OF MONEY WITH COSTS
OF BOTH COURTS."  THE CIRCUIT COURT OF APPEALS AFFIRMED "FOR THE
REASONS STATED" BY THE DISTRICT COURT, AND "FOR THE FURTHER REASON THAT
THE TERM OF COURT AT WHICH THE DECREE WAS ENTERED, WHEN THE PETITION TO
AMEND WAS FILED, HAD LONG SINCE PASSED ...  "  OBVIOUSLY, BOTH COURTS
DISPOSED OF THE PETITION NOT AS A CONSIDERED DISALLOWANCE OF ATTORNEY'S
FEES AND LITIGATION EXPENSES IN THE CIRCUMSTANCES OF THE PARTICULAR
SUIT BUT BECAUSE THEY DEEMED AWARD OF SUCH COSTS BEYOND THE POWER OF
THE DISTRICT COURT. 

WHETHER ACTION BY THE DISTRICT COURT ON THE MERITS OF THE PETITION
WAS FORECLOSED BY THIS COURT'S MANDATE IN TICONIC BANK V. SPRAGUE,
SUPRA, AND WAS FURTHER LIMITED BY RESTRICTIONS WHICH TERMS OF COURT MAY
IMPOSE, ARE QUESTIONS SUBSIDIARY TO THE POWER OF FEDERAL COURTS IN
EQUITY SUITS TO ALLOW COUNSEL FEES AND OTHER EXPENSES ENTAILED BY THE
LITIGATION NOT INCLUDED IN THE ORDINARY TAXABLE COSTS RECOGNIZED BY
STATUTE. 

ALLOWANCE OF SUCH COSTS IN APPROPRIATE SITUATIONS IS PART OF THE
HISTORIC EQUITY JURISDICTION OF THE FEDERAL COURTS.  THE SUITS "IN
EQUITY" OF WHICH THESE COURTS WERE GIVEN "COGNIZANCE" EVER SINCE THE
FIRST JUDICIARY ACT, CONSTITUTED THAT BODY OF REMEDIES, PROCEDURES AND
PRACTICES WHICH THERETOFORE HAD BEEN EVOLVED IN THE ENGLISH COURT OF
CHANCERY,  FN1  SUBJECT, OF COURSE, TO MODIFICATIONS BY CONGRESS, E.G.,
MICHAELSON V. UNITED STATES, 266 U.S. 42.  THE SOURCES BEARING ON
EIGHTEENTH-CENTURY ENGLISH PRACTICE - REPORTS AND MANUALS - UNIFORMLY
SUPPORT THE POWER NOT ONLY TO GIVE A FIXED ALLOWANCE FOR THE VARIOUS
STEPS IN A SUIT, WHAT ARE KNOWN AS COSTS "BETWEEN PARTY AND PARTY," BUT
ALSO AS MUCH OF THE ENTIRE EXPENSES OF THE LITIGATION OF ONE OF THE
PARTIES AS FAIR JUSTICE TO THE OTHER PARTY WILL PERMIT, TECHNICALLY
KNOWN AS COSTS "AS BETWEEN SOLICITOR AND CLIENT."  FN2  TO BE SURE, THE
USUAL CASE IS ONE WHERE THROUGH THE COMPLAINANT'S EFFORTS A FUND IS
RECOVERED IN WHICH OTHERS SHARE.  SOMETIMES THE COMPLAINANT AVOWEDLY
SUES FOR THE COMMON INTEREST FN3  WHILE IN OTHERS HIS LITIGATION
RESULTS IN A FUND FOR A GROUP THOUGH HE DID NOT PROFESS TO BE THEIR
REPRESENTATIVE.  FN4  THE PRESENT CASE PRESENTS A VARIANT OF THE LATTER
SITUATION.  IN HER MAIN SUIT THE PETITIONER NEITHER AVOWED HERSELF TO
BE THE REPRESENTATIVE OF A CLASS NOR DID SHE AUTOMATICALLY ESTABLISH A
FUND IN WHICH OTHERS COULD PARTICIPATE.  BUT IN VIEW OF THE
CONSEQUENCES OF STARE DECISIS, THE PETITIONER BY ESTABLISHING HER CLAIM
NECESSARILY ESTABLISHED THE CLAIMS OF FOURTEEN OTHER TRUSTS PERTAINING
TO THE SAME BONDS. 

THAT THE PARTY IN A SITUATION LIKE THE PRESENT NEITHER PURPORTED TO
SUE FOR A CLASS NOR FORMALLY ESTABLISHED BY LITIGATION A FUND AVAILABLE
TO THE CLASS, DOES NOT SEEM TO BE A DIFFERENTIATING FACTOR SO FAR AS IT
AFFECTS THE SOURCE OF THE RECOGNIZED POWER OF EQUITY TO GRANT
REIMBURSEMENTS OF THE KIND FOR WHICH THE PETITIONER IN THIS CASE
APPEALED TO THE CHANCELLOR'S DISCRETION.  PLAINLY THE FOUNDATION FOR
THE HISTORIC PRACTICE OF GRANTING REIMBURSEMENT FOR THE COSTS OF
LITIGATION OTHER THAN THE CONVENTIONAL TAXABLE COSTS IS PART OF THE
ORIGINAL AUTHORITY OF THE CHANCELLOR TO DO EQUITY IN A PARTICULAR
SITUATION.  FN5  WHETHER ONE PROFESSES TO SUE REPRESENTATIVELY OR
FORMALLY MAKES A FUND AVAILABLE FOR OTHERS MAY, OF COURSE, BE A
RELEVANT CIRCUMSTANCE IN MAKING THE FUND LIABLE FOR HIS COSTS IN
PRODUCING IT.  BUT WHEN SUCH A FUND IS FOR ALL PRACTICAL PURPOSES
CREATED FOR THE BENEFIT OF OTHERS, THE FORMALITIES OF THE LITIGATION -
THE ABSENCE OF AN AVOWED CLASS SUIT OR THE CREATION OF A FUND, AS IT
WERE, THROUGH STARE DECISIS RATHER THAN THROUGH A DECREE - HARDLY TOUCH
THE POWER OF EQUITY IN DOING JUSTICE AS BETWEEN A PARTY AND THE
BENEFICIARIES OF HIS LITIGATION.  AS IN MUCH ELSE THAT PERTAINS TO
EQUITABLE JURISDICTION, INDIVIDUALIZATION IN THE EXERCISE OF A
DISCRETIONARY POWER WILL ALONE RETAIN EQUITY AS A LIVING SYSTEM AND
SAVE IT FROM STERILITY.  IN THE ACTUAL EXERCISE OF THE POWER TO AWARD
COSTS "AS BETWEEN SOLICITOR AND CLIENT" ALL SORTS OF PRACTICAL
DISTINCTIONS HAVE BEEN TAKEN IN DISTRIBUTING THE COSTS OF THE BURDEN OF
THE LITIGATION.  FN6  AND SO, THE CIRCUMSTANCES UNDER WHICH THE
PETITIONER ENFORCED THE FIDUCIARY OBLIGATION OF THE TICONIC BANK - THE
RELATION OF ITS VINDICATION TO BENEFICIARIES SIMILARLY SITUATED BUT NOT
ACTUALLY BEFORE THE COURT, AS WELL AS THE INTEREST OF THE COMMON
CREDITORS WHERE THE FUNDS OF THE BANK ARE NOT SUFFICIENT TO PAY THEM IN
FULL, AND DOUBTLESS OTHER CONSIDERATIONS - MUST ENTER INTO THE ULTIMATE
JUDGMENT OF THE DISTRICT COURT AS TO THE FAIRNESS OF MAKING AN AWARD,
OR THE EXTENT OF SUCH AWARD, "AS BETWEEN SOLICITOR AND CLIENT" IN THIS
CASE.  IN ANY EVENT SUCH ALLOWANCES ARE APPROPRIATE ONLY IN EXCEPTIONAL
CASES AND FOR DOMINATING REASONS OF JUSTICE.  BUT HERE WE ARE CONCERNED
SOLELY WITH THE POWER TO ENTERTAIN SUCH A PETITION. 

WITHOUT CONSIDERING THE HISTORIC AUTHORITY OF A COURT OF EQUITY IN
SUCH MATTERS, THE DISTRICT COURT DEEMED ITSELF POWERLESS BECAUSE
FORECLOSED BY THE MANDATE IN TICONIC BANK V. SPRAGUE, SUPRA.  THE
GENERAL PROPOSITION WHICH MOVED THAT COURT - THAT IT WAS BOUND TO CARRY
THE MANDATE OF THE UPPER COURT INTO EXECUTION AND COULD NOT CONSIDER
THE QUESTIONS WHICH THE MANDATE LAID AT REST - IS INDISPUTABLE. 
COMPARE KANSAS CITY SOUTHERN RY. CO. V. GUARDIAN TRUST CO., 281 U.S.
1.  FN7 BUT THAT LEAVES US STILL TO CONSIDER WHETHER THE IMMEDIATE
ISSUE NOW IN CONTROVERSY WAS DISPOSED OF IN THE MAIN LITIGATION AND
THEREFORE FORECLOSED BY THE MANDATE.  WHILE A MANDATE IS CONTROLLING AS
TO MATTERS WITHIN ITS COMPASS, ON THE REMAND A LOWER COURT IS FREE AS
TO OTHER ISSUES.  SEE IN RE SANFORD FORK & TOOL CO., 160 U.S. 247; EX
PARTE CENTURY INDEMNITY CO., 305 U.S. 354.  CERTAINLY THE CLAIM FOR "AS
BETWEEN SOLICITOR AND CLIENT" COSTS WAS NOT DIRECTLY IN ISSUE IN THE
ORIGINAL PROCEEDINGS BY SPRAGUE.  IT WAS NEITHER BEFORE THE CIRCUIT
COURT OF APPEALS NOR BEFORE THIS COURT.  ITS DISPOSITION, THEREFORE, BY
THE MANDATE OF EITHER COURT COULD BE IMPLIED ONLY IF A CLAIM FOR SUCH
COSTS WAS NECESSARILY IMPLIED IN THE CLAIM IN THE ORIGINAL SUIT, AND
ITS FAILURE TO ASK FOR SUCH COSTS AN IMPLIED WAIVER.  THESE
IMPLICATIONS ARE REPELLED BY THE BASIS ON WHICH SUCH COSTS ARE
GRANTED.  THEY ARE NOT OF A ROUTINE CHARACTER LIKE ORDINARY TAXABLE
COSTS; THEY ARE CONTINGENT UPON THE EXIGENCIES OF EQUITABLE LITIGATION,
THE FINAL DISPOSITION OF WHICH IN ITS ENTIRE PROCESS INCLUDING APPEAL
PLACES SUCH A CLAIM IN MUCH BETTER PERSPECTIVE THAN IT WOULD HAVE AT AN
EARLIER STAGE.  SUCH ARE THE CONSIDERATIONS WHICH UNDERLAY THE DECISION
IN TRUSTEES V. GREENOUGH, 105 U.S. 527, IN HOLDING THAT AN ORDER
ALLOWING COSTS "AS BETWEEN SOLICITOR AND CLIENT" WAS A FINAL JUDGMENT
FOR PURPOSES OF APPEAL BECAUSE "THE INQUIRY WAS A COLLATERAL ONE,
HAVING A DISTINCT AND INDEPENDENT CHARACTER."  FN8  WE, THEREFORE, HOLD
THAT THE ISSUE IN THE INSTANT CASE IS SUFFICIENTLY DIFFERENT FROM THAT
PRESENTED BY THE ORDINARY QUESTIONS REGARDING TAXABLE COSTS THAT IT WAS
IMPLIEDLY COVERED NEITHER BY THE ORIGINAL DECREE NOR BY THE MANDATES,
AND THAT NEITHER CONSTITUTED A BAR TO THE DISPOSAL OF THE PETITION
BELOW ON ITS MERITS. 

FINALLY, WE MUST NOTICE THE SEPARATE GROUND TAKEN BY THE CIRCUIT
COURT OF APPEALS ON THE BASIS OF WHAT IT DEEMED THE REQUIREMENTS OF
TERMS OF COURT.  THE NEW RULES OF CIVIL PROCEDURE HAVE RENDERED
ANACHRONISTIC THE TECHNICAL NICETIES PERTAINING TO TERMS OF COURT AS TO
BOTH LAW AND EQUITY,  FN9  BUT THE RULING OF THE DISTRICT COURT HERE IN
QUESTION WAS MADE PRIOR TO THE OPERATION OF THE NEW RULES.  SINCE WE
VIEW THE PETITION FOR REIMBURSEMENT AS AN INDEPENDENT PROCEEDING
SUPPLEMENTAL TO THE ORIGINAL PROCEEDING AND NOT A REQUEST FOR A
MODIFICATION OF THE ORIGINAL DECREE, THE SUGGESTION OF THE CIRCUIT
COURT OF APPEALS - THAT IT CAME AFTER THE END OF THE TERM AT WHICH THE
MAIN DECREE WAS ENTERED AND THEREFORE TOO LATE - FALLS. 

THE DECISION OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED SO THAT
THE DISTRICT COURT MAY ENTERTAIN THE PETITION FOR REIMBURSEMENT IN THE
LIGHT OF THE APPROPRIATE EQUITABLE CONSIDERATIONS.  REVERSED. 

FN1  SEE ROBINSON V. CAMPBELL, 3 WHEAT, 212, 222; BOYLE V. ZACHARIE,
6 PET. 648, 658; PENNSYLVANIA V. WHEELING BRIDGE CO., 13 HOW.  518,
563; PAYNE V. HOOK, 7 WALL.  425, 430; RULE XXXIII, RULES OF PRACTICE
FOR THE COURTS OF EQUITY OF THE UNITED STATES (1822) 7 WHEAT V, XIII;
RULE XC, RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE UNITED
STATES (1842) 1 HOW.  XLI, LXIX; 1 STORY, EQUITY JURISPRUDENCE (14TH
ED.)  SECS.  57, 58; 1 STREET, FEDERAL EQUITY PRACTICE, SEC. 97. 

FN2  SEE LOMAX V. HIDE, 2 VERN.  185; RAMSDEN V. LANGLEY, 2 VERN. 
536; ATTORNEY GENERAL V. CARTE, 1 DICK.  113; ATTORNEY GENERAL V.
HABERDASHERS' CO. AND TONNA, 4 BROWN C.C. 179; EX PARTE THORP, 1 VES. 
JUN.  394; MOGGRIDGE V. THACKWELL, 1 VES.  JUN.  464; DUNGEY V. ANGOVE,
2 VES.  JUN.  304.  SEE 2 ADAIR, LAW OF COSTS IN COURTS OF EQUITY, 81,
87, 179; 2 BARBOUR, CHANCERY PRACTICE (2D ED.)  889-894; BEAMES, COSTS
IN EQUITY (2D ED.)  144-146; 3 DANIELL'S, CHANCERY PLEADING AND
PRACTICE (2D ED.)  1434-35; 2 SMITH, CHANCERY PRACTICE (2D ED.)  697
700.  ONE MUST, OF COURSE, BE NOT UNMINDFUL OF THE INADEQUACY OF
EIGHTEENTH-CENTURY CHANCERY REPORTS, SEE 2 YORK, LIFE OF LORD
CHANCELLOR HARDWICKE 429, PARTICULARLY AS TO MATTERS OF COSTS.  SEE
BEAMES, COSTS IN EQUITY (ADVERTISEMENT TO SECOND EDITION).  BUT THE
CURRENT OF AUTHORITY IS UNIFORM AND UNEQUIVOCAL.    THE POWER OF THE
FEDERAL COURTS TO GIVE COSTS WAS RECOGNIZED BY IMPLICATION IN THE FIRST
JUDICIARY ACT.  ACT OF SEPTEMBER 24, 1789, CH. 20, SEC. 20, 1 STAT.
83.  THE STATUTORY-SYSTEM PRIOR TO 1853 REQUIRED "PARTY AND PARTY"
COSTS TO BE TAXED ON THE BASIS OF THE FEES ALLOWED BY STATE PRACTICE,
BUT THE ACT OF FEB. 26, 1853, CH. 80, 10 STAT. 161, SET A UNIFORM SCALE
OF FEES FOR "PARTY AND PARTY" COSTS IN THE FEDERAL COURTS.  SEE COSTS
IN CIVIL CASES, 30 FED. CAS. 18, 284; STREET, FEDERAL EQUITY PRACTICE
SECS. 1984-1988.  AS TO COSTS "AS BETWEEN SOLICITOR AND CLIENT," THE
ENGLISH PRACTICE WAS FOLLOWED BY THE SUPREME COURT AND IT WAS HELD THAT
THE ALLOWANCE OF SUCH COSTS WAS WITHIN THE AUTHORITY OF THE FEDERAL
COURTS.  TRUSTEES V. GREENOUGH, 105 U.S. 527; DODGE V. TULLEYS, 144
U.S. 451; MEDDAUGH V. WILSON, 151 U.S. 333; COMPARE CENTRAL R. CO. V.
PETTUS, 113 U.S. 116; SEE 4 CYCLOPEDIA OF FEDERAL PROCEDURE SEC. 1086;
2 FOSTER, FEDERAL PRACTICE (6TH ED.)  SEC.  422; 2 STREET, FEDERAL
EQUITY PRACTICE SECS. 2033-2048.  COMPARE THE PRACTICE IN ADMIRALTY,
SHOWN IN THE APOLLON, 9 WHEAT.  362; CANTER V. INSURANCE COMPANIES, 3
PET. 307.  THE PROVISIONS VISIONS OF THE FEE BILL OF 1853 THAT CERTAIN
SPECIFIED FEES AND NO OTHERS SHALL BE TAXED TO ATTORNEYS IN THE COURTS
OF THE UNITED STATES APPLIES ONLY TO "PARTY AND PARTY" COSTS.  TRUSTEES
V. GREENOUGH, 105 U.S. 527. 

FN3  E.G., TOOTAL V. SPICER, 4 SIM.  510; HOOD V. WILSON, 2 RUSS.  &
M. 687; STANTON V. HATFIELD, 1 KEEN 358; SUTTON V. DOGGETT, 3 BEAV.  9;
GOLDSMITH V. RUSSELL, 5 DE. G.M. & G. 547; HENDERSON V. DODDS, L.R. 2
EQ. 532; FERGUSON V. GIBSON, L.R. 14 EQ. 379; JERVIS V. WOLFERSTAN,
L.R. 18 EQ. 18. 

FN4  E.G., THOMAS V. JONES, 1 DR. & SM. 134; COMPARE IN RE
RICHARDSON, 14 CH. DIV. 611. 

FN5  FOR EXAMPLES OF THE DISCRETIONARY NATURE OF THE AUTHORITY OF
EQUITY TO TAX COSTS, SEE 3 DANIELL'S, CHANCERY PLEADING AND PRACTICE
(2D ED.)  1381-1410; 2 STREET, FEDERAL EQUITY PRACTICE SECS. 1994
2007. 

FN6  SEE 3 DANIELL'S, CHANCERY PLEADING AND PRACTICE (2D ED.)  1434
1440; 2 STREET, FEDERAL EQUITY PRACTICE SECS. 2033-2048. 

FN7  IN KANSAS CITY SOUTHERN RY. CO. V. GUARDIAN TRUST CO., SUPRA,
COSTS "AS BETWEEN SOLICITOR AND CLIENT" HAD BEEN ASKED IN SUGGESTIONS
ON APPEAL FROM THE ORIGINAL DISPOSITION OF THE CAUSE.  THE CIRCUIT
COURT OF APPEALS, WHILE AFFIRMING ON THE MERITS, PASSED ON THESE
SUGGESTIONS IN A WAY INTERPRETED BY THIS COURT TO ALLOW ONLY "PARTY AND
PARTY" COSTS.  NO APPEAL HAD BEEN TAKEN ON THIS POINT.  A SUBSEQUENT
APPLICATION IN THE DISTRICT COURT FOR "SOLICITOR AND CLIENT" COSTS WAS
THEREFORE HELD BARRED. 

FN8  IN TRUSTEES V. GREENOUGH, SUIT WAS BROUGHT BY A HOLDER OF
CERTAIN BONDS AGAINST THE TRUSTEES OF THE STATE IMPROVEMENT FUND
ALLEGING MISMANAGEMENT AND WASTE OF THE FUND WHICH WAS TO SECURE THE
BONDS AND ASKING THAT HIS CLAIM BE ALLOWED, THAT THE FUND BE CHARGED
WITH THE PAYMENT THEREOF, AND THAT AN ACCOUNTING BE HAD.  THIS RELIEF
WAS GRANTED, MUCH PROPERTY WAS RECLAIMED TO THE FUND AND AGENTS WERE
APPOINTED FOR THE SALE OF THE PROPERTY OF THE FUND FOR THE PURPOSES OF
LIQUIDATION.  DURING THE LIQUIDATION, THE HOLDER OF THE BONDS WHO HAD
INITIATED THE PROCEEDINGS FILED HIS PETITION FOR AN ALLOWANCE FROM THE
FUND OF HIS COSTS AS BETWEEN SOLICITOR AND CLIENT.  SUCH COSTS WERE
ALLOWED WITHOUT ANY SUGGESTION THAT THE APPLICATION FOR THEM WAS NOT
TIMELY. 

FN9  PRIOR TO THE ADOPTION OF THE NEW RULES OF CIVIL PROCEDURE, A
FINAL DECREE IN A SUIT IN EQUITY COULD BE REVISED ONLY DURING THE TERM
OF COURT OF ITS ENTRY.  CAMERON V. M'ROBERTS, 3 WHEAT.  591; BUCKEYE
CO. V. HOCKING VALLEY CO., 269 U.S. 42.  THE SAME LIMITATION EXISTED ON
THE POWER OF A DISTRICT COURT TO GRANT A REHEARING OF AN APPEALABLE
DECREE.  EQUITY RULE 88.  THESE TIME LIMITATIONS ARE NO LONGER
APPLICABLE.  RULES 59 AND 60 OF THE RULES OF CIVIL PROCEDURE SET FORTH
THE TIME IN WHICH THESE ACTIONS MAY BE TAKEN, BUT UNDER THOSE SECTIONS
THE PASSAGE OF THE TERM OF COURT IS NOT MATERIAL.  INDEED, RULE 6(C)
PROVIDES:  "THE PERIOD OF TIME PROVIDED FOR THE DOING OF ANY ACT OR THE
TAKING OF ANY PROCEEDING IS NOT AFFECTED OR LIMITED BY THE EXPIRATION
OF A TERM OF COURT.  THE EXPIRATION OF A TERM OF COURT IN NO WAY
AFFECTS THE POWER OF A DISTRICT COURT TO DO ANY ACT OR TAKE ANY
PROCEEDING IN ANY CIVIL ACTION WHICH HAS BEEN PENDING BEFORE IT."  IT
WAS STATED IN THE NOTES TO THE RULES OF CIVIL PROCEDURE, PREPARED BY
THE ADVISORY COMMITTEE, MARCH 1938, THAT THIS SECTION "ELIMINATES THE
DIFFICULTIES CAUSED BY THE EXPIRATION OF TERMS OF COURT." 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER CONCUR IN THE RESULT. 

MR. JUSTICE DOUGLAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















KOHN V. CENTRAL DISTRIBUTING CO., 306 U.S. 531 


NO. 177.  ARGUED MARCH 1, 2, 1939.  - DECIDED APRIL 17, 1939.  -
AFFIRMED. 


A SUIT IN THE FEDERAL COURT TO ENJOIN ENFORCEMENT OF A STATE TAX,
ALLEGED TO BE UNCONSTITUTIONAL, WILL NOT LIE WHERE THE ENFORCEMENT IS
BY SUIT PENDING IN A STATE COURT AND WHERE THE STATE COURTS AFFORD A
PLAIN, SPEEDY AND EFFICIENT REMEDY.  JUDICIAL CODE SECS. 265 AND 24,
PAR. 1, AS AMENDED BY ACT OF AUGUST 21, 1937.  P. 534. 

KOHN ET AL., ADMINISTRATORS, V. CENTRAL DISTRIBUTING CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF KENTUCKY. 

APPEAL FROM A JUDGMENT OF THE DISTRICT COURT, OF THREE JUDGES, WHICH
DENIED APPLICATIONS FOR TEMPORARY AND PERMANENT INJUNCTIONS AND
DISMISSED THE BILL, IN A SUIT TO RESTRAIN ENFORCEMENT OF A STATE LIQUOR
TAX. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE COMMONWEALTH OF KENTUCKY, ACTING THROUGH ITS COMMISSIONER OF
REVENUE, BROUGHT SUIT IN THE FRANKLIN CIRCUIT COURT OF THAT STATE TO
RECOVER THE AMOUNT OF A TAX CLAIMED TO BE DUE FROM THE CENTRAL
DISTRIBUTING COMPANY, A KENTUCKY CORPORATION.  A WRIT OF ATTACHMENT WAS
ISSUED AND LEVIED UPON CERTAIN WHISKEY WHICH APPELLANTS CLAIMED WAS
SUBJECT TO THEIR LIEN UNDER A CHATTEL MORTGAGE EXECUTED BY THE
COMPANY.  THE MORTGAGOR WAS IN DEFAULT AND APPELLANTS HAD TAKEN
POSSESSION OF THE PROPERTY. 

CONTENDING THAT THE STATUTES UNDER WHICH THE TAX WAS ASSESSED AND
SOUGHT TO BE ENFORCED (ALCOHOL CONTROL ACT, EFFECTIVE MARCH 17, 1934,
ALCOHOL BEVERAGE TAX ACT, EFFECTIVE MAY 1, 1936, AND ALCOHOL BEVERAGE
CONTROL LAW, EFFECTIVE MARCH 7, 1938) WERE INVALID UNDER THE STATE
CONSTITUTION AND ALSO UNDER THE COMMERCE CLAUSE, THE CONTRACT CLAUSE,
AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, OF THE FEDERAL
CONSTITUTION, APPELLANTS BROUGHT THIS SUIT IN THE FEDERAL COURT AGAINST
THE COMMONWEALTH, ON RELATION OF THE COMMISSIONER OF REVENUE, AND THE
SHERIFF, TO RESTRAIN THE PROCEEDINGS TO COLLECT THE TAX AND TO PREVENT
THE DEFENDANTS FROM DISPOSING OF THE PROPERTY WHICH HAD BEEN ATTACHED. 

DEFENDANTS MOVED TO DISMISS THE PETITION UPON THE GROUND THAT THE
PLAINTIFFS HAD AN ADEQUATE LEGAL REMEDY AND THAT THE COURT WAS WITHOUT
JURISDICTION TO GRANT THE RELIEF SOUGHT. 

ON HEARING OF THE APPLICATION FOR A TEMPORARY AND PERMANENT
INJUNCTION, THE DISTRICT COURT, COMPOSED OF THREE JUDGES, DISMISSED THE
PETITION.  THE COURT STATED THAT IT WAS ITS OPINION THAT SEC. 12 OF THE
ALCOHOL CONTROL ACT OF 1934 "FURNISHES PETITIONERS AN ADEQUATE REMEDY
...  TO CONTEST THE VALIDITY OF SAID ACT AND TO RECOVER ANY TAXES
COLLECTED FROM THEM BY THE STATE OF KENTUCKY" THEREUNDER.  THE CASE
COMES HERE ON APPEAL.  JUD.  CODE, SEC. 266, 28 U.S.C. 380. 

APPELLANTS CONTEST THE RULING OF THE DISTRICT COURT, ASSERTING THAT
UNDER SEC. 12 OF THE ACT OF 1934 - THE TEXT OF WHICH IS SET FORTH IN
THE MARGIN  FN1  - THE REMEDY IS GIVEN ONLY TO THE TAXPAYER AND IS NOT
AVAILABLE TO APPELLANTS, THE TAXPAYER'S MORTGAGEES.  THE COMMONWEALTH
URGES THE CONTRARY, BUT POINTS TO NO DECISION OF THE STATE COURT WHICH
IS DECISIVE OF THAT POINT. 

APART FROM THAT QUESTION, THE COMMONWEALTH INSISTS THAT APPELLANTS
HAD A PLAIN AND ADEQUATE REMEDY BY APPEARING IN THE ATTACHMENT SUIT IN
THE FRANKLIN CIRCUIT COURT WHERE ALL ISSUES AS TO THE VALIDITY OF THE
TAX AND THE PROPRIETY OF THE PROCEEDINGS FOR ENFORCEMENT COULD BE
LITIGATED AND DETERMINED, WITH THE ULTIMATE RIGHT OF REVIEW IN THIS
COURT OF ANY FEDERAL QUESTION RAISED AND DECIDED.  THE COMMONWEALTH
POINTS TO THE PROVISION OF THE CIVIL CODE OF PRACTICE OF KENTUCKY, SEC.
29,  FN2  UNDER WHICH ANY PERSON CLAIMING AN INTEREST IN PROPERTY WHICH
HAS BEEN ATTACHED MAY FILE HIS PETITION STATING HIS CLAIM AND
CONTROVERTING THAT OF THE PLAINTIFF IN THE ATTACHMENT WHEREUPON HE MAY
BE MADE A DEFENDANT, HIS PETITION BEING TREATED AS AN ANSWER.  SEE,
ALSO, CARROLL'S KENTUCKY STATUTES, BALDWIN'S 1936 REVISION, SEC. 950
1. 

APPELLANTS ASSERT THAT THE FRANKLIN CIRCUIT COURT WAS WITHOUT
JURISDICTION OF THE ATTACHMENT SUIT, BUT THAT QUESTION, APPROPRIATELY
ONE FOR THE DECISION OF THE STATE COURT, COULD MANIFESTLY BE PRESENTED
AND DETERMINED IN THAT ACTION. 

APPELLANTS ALSO STATE THAT IN THE PRESENT SUIT THEY ASKED THE FEDERAL
COURT TO EXERCISE ITS EQUITY POWERS IN THEIR AID IN THE FORECLOSURE OF
THEIR MORTGAGE, BUT IT IS APPARENT THAT THIS RELIEF IS MERELY
INCIDENTAL AND THAT THE MAIN OBJECT OF THE SUIT IS TO RESTRAIN THE
PROCEEDINGS IN THE FRANKLIN CIRCUIT COURT WHICH HAD BEEN BROUGHT TO
ENFORCE THE COLLECTION OF THE TAX. 

THIS ENDEAVOR, ASIDE FROM THE APPLICATION OF THE GENERAL PRINCIPLE
GOVERNING THE EQUITY JURISDICTION, ENCOUNTERS TWO POSITIVE STATUTORY
PROHIBITIONS; (1) THAT OF SEC. 265 OF THE JUDICIAL CODE (28 U.S.C. 379)
PROVIDING THAT AN INJUNCTION SHALL NOT BE GRANTED TO STAY PROCEEDINGS
IN A STATE COURT (ESSANAY FILM CO. V. KANE, 258 U.S. 358, 361;
MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, 97; HILL V. MARTIN, 296 U.S.
393, 403); AND (2) THE PROVISION OF THE ACT OF AUGUST 21, 1937(C. 726,
50 STAT. 738) AMENDING THE FIRST PARAGRAPH OF SEC. 24 OF THE JUDICIAL
CODE TO THE EFFECT THAT "NO DISTRICT COURT SHALL HAVE JURISDICTION OF
ANY SUIT TO ENJOIN, SUSPEND, OR RESTRAIN THE ASSESSMENT, LEVY, OR
COLLECTION OF ANY TAX IMPOSED BY OR PURSUANT TO THE LAWS OF ANY STATE
WHERE A PLAIN, SPEEDY, AND EFFICIENT REMEDY MAY BE HAD AT LAW OR IN
EQUITY IN THE COURTS OF SUCH STATE." 

THE JUDGMENT IS AFFIRMED. 

FN1  SECTION 12 OF THE ACT OF 1934(CARROLL'S KENTUCKY STATUTES,
BALDWIN'S 1936 REVISION, SEC. 4214A-23) IS AS FOLLOWS: 

"NO SUIT SHALL BE MAINTAINED IN ANY COURT TO RESTRAIN OR DELAY THE
COLLECTION OR PAYMENT OF THE TAX LEVIED BY THIS ACT.  THE AGGRIEVED
TAXPAYER SHALL PAY WITH OR WITHOUT PROTEST THE TAX AS AND WHEN REQUIRED
AND MAY AT ANY TIME WITHIN TWO YEARS FROM THE DATE OF SUCH PAYMENT SUE
THE COMMONWEALTH THROUGH ITS AGENT, THE AUDITOR OF PUBLIC ACCOUNTS, IN
AN ACTION AT LAW IN ANY COURT, STATE OR FEDERAL, OTHERWISE HAVING
JURISDICTION OF THE PARTIES AND SUBJECT MATTER, FOR THE RECOVERY OF THE
TAX PAID WITH LEGAL INTEREST THEREON FROM THE DATE OF PAYMENT.  IF IT
IS FINALLY DETERMINED THAT SAID TAX OR ANY PART THEREOF WAS WRONGFULLY
COLLECTED, FOR ANY REASON, IT SHALL BE THE DUTY OF THE AUDITOR OF
PUBLIC ACCOUNTS TO ISSUE HIS WARRANT ON THE TREASURER OF THE
COMMONWEALTH OF KENTUCKY FOR THE AMOUNT OF SUCH TAX SO ADJUDGED TO HAVE
BEEN WRONGFULLY COLLECTED TOGETHER WITH LEGAL INTEREST THEREON.  THE
TREASURER SHALL PAY THE SAME AT ONCE OUT OF THE GENERAL EXPENDITURE
FUND OF THE STATE IN PREFERENCE TO OTHER WARRANTS OR CLAIMS AGAINST THE
COMMONWEALTH.  A SEPARATE SUIT NEED NOT BE FILED FOR EACH INDIVIDUAL
PAYMENT MADE BY ANY TAXPAYER, BUT A RECOVERY MAY BE HAD IN ONE SUIT FOR
AS MANY PAYMENTS AS MAY HAVE BEEN MADE." 

FN2  THE TEXT OF SEC. 29 OF THE CIVIL CODE OF PRACTICE IS AS
FOLLOWS: 

"IN AN ACTION OR PROCEEDING FOR THE RECOVERY OF REAL OR PERSONAL
PROPERTY, OR FOR THE SUBJECTION THEREOF TO A DEMAND OF THE PLAINTIFF
UNDER AN ATTACHMENT OR OTHER LIEN, ANY PERSON CLAIMING A RIGHT TO, OR
INTEREST IN, THE PROPERTY OR ITS PROCEEDS, MAY, BEFORE PAYMENT OF THE
PROCEEDS TO THE PLAINTIFF, FILE, IN THE ACTION, HIS VERIFIED PETITION
STATING HIS CLAIM AND CONTROVERTING THAT OF THE PLAINTIFF; WHEREUPON
THE COURT MAY ORDER HIM TO BE MADE A DEFENDANT; AND UPON THAT BEING
DONE, HIS PETITION SHALL BE TREATED AS HIS ANSWER.  BUT IF HE BE A NON
RESIDENT HE MUST GIVE SECURITY FOR COSTS." 
..END :























HIGGINBOTHAM V. BATON ROUGE, 306 U.S. 535 


NO. 462.  ARGUED MARCH 3, 1939.  - DECIDED APRIL 17, 1939.  - 190 LA.
821 - 183 SO. 168, AFFIRMED. 


1.  BEFORE THE EXPIRATION OF THE INCUMBENT'S TERM, THE MUNICIPAL
OFFICE OF COMMISSIONER OF PUBLIC PARKS AND STREETS TO WHICH HE HAD BEEN
ELECTED WAS ABOLISHED BY LATER LEGISLATION, PURSUANT TO WHICH HE WAS
EMPLOYED, UNTIL THE NEXT ELECTION, TO RENDER AS SUPERINTENDENT OF PARKS
AND STREETS UNDER CONTROL OF THE MAYOR THE SAME SERVICE PERTAINING TO
THE GOVERNMENTAL FUNCTIONS OF THE CITY IN THE SUPERVISION OF ITS PARKS
AND STREETS AS HE HAD RENDERED AS COMMISSIONER AND AT THE SAME SALARY. 
HELD THAT LATER ACTION OF THE LEGISLATURE AND THE CITY TERMINATING THE
EMPLOYMENT BEFORE THE TERM HAD EXPIRED WAS WITHIN THE LEGISLATIVE POWER
OVER PUBLIC OFFICES AND NOT AN IMPAIRMENT OF CONTRACT OBLIGATION WITHIN
THE MEANING OF THE CONTRACT CLAUSE OF THE CONSTITUTION.  PP. 535, 539. 

2.  WHILE THIS COURT IN APPLYING THE CONTRACT CLAUSE OF THE
CONSTITUTION MUST REACH AN INDEPENDENT JUDGMENT AS TO THE EXISTENCE AND
NATURE OF THE ALLEGED CONTRACT, GREAT WEIGHT IS ATTACHED TO THE VIEWS
OF THE HIGHEST COURT OF THE STATE.  P. 538. 

HIGGINBOTHAM V. CITY OF BATON ROUGE. 

APPEAL FROM THE SUPREME COURT OF LOUISIANA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT DISMISSING THE COMPLAINT IN
AN ACTION AGAINST THE CITY TO RECOVER MONEY ALLEGED TO BE DUE AS
SALARY. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE CITY OF BATON ROUGE, IN MARCH, 1935, PURSUANT TO ACT NO. 1 OF THE
FIRST EXTRAORDINARY SESSION OF 1935 OF THE LEGISLATURE OF LOUISIANA,
ADOPTED AN ORDINANCE DECLARING THAT THE CITY WAS WITHOUT AUTHORITY TO
RETAIN APPELLANT, POWERS HIGGINBOTHAM, AS SUPERINTENDENT OF PUBLIC
PARKS AND STREETS, AND THAT HIS EMPLOYMENT IN THAT CAPACITY WAS
TERMINATED.  CONTENDING THAT HE HAD BEEN EMPLOYED FOR A TERM CONTINUING
UNTIL NOVEMBER, 1936, AND THAT THE LEGISLATION ABOVEMENTIONED
CONSTITUTED AN IMPAIRMENT OF THE OBLIGATION OF HIS CONTRACT IN
VIOLATION OF SEC. 10 OF ARTICLE I OF THE CONSTITUTION OF THE UNITED
STATES, APPELLANT BROUGHT THIS SUIT TO RECOVER THE BALANCE OF HIS
SALARY FOR THE STATED TERM.  THE SUPREME COURT OF THE STATE AFFIRMED
THE JUDGMENT DISMISSING HIS COMPLAINT.  190 LA. 821; 183 SO. 168. 

THE PERTINENT LEGISLATION WITH RESPECT TO THE MUNICIPAL POSITION IN
QUESTION IS COMPREHENSIVELY REVIEWED IN THE OPINION OF THE STATE
COURT.  IT APPEARS THAT THE CITY OF BATON ROUGE HAS A COMMISSION FORM
OF GOVERNMENT ADOPTED IN 1914 UNDER THE PROVISIONS OF ACT NO. 207 OF
1912.  THE AUTHORITY OF THE COMMISSION COUNCIL IS DIVIDED AMONG THREE
DEPARTMENTS, VIZ. (1) THE DEPARTMENT OF PUBLIC HEALTH AND SAFETY, (2)
THE DEPARTMENT OF FINANCE, AND (3) THE DEPARTMENT OF PUBLIC PARKS AND
STREETS.  IT WAS PROVIDED THAT A COMMISSIONER SHOULD BE ELECTED FOR
EACH DEPARTMENT, THE MAYOR BEING EX OFFICIO COMMISSIONER OF PUBLIC
HEALTH AND SAFETY.  IN 1921 THE TERMS OF OFFICE OF THE MEMBERS OF THE
COMMISSION COUNCIL WERE FIXED AT FOUR YEARS, THE ELECTION TO BE HAD IN
APRIL.  APPELLANT WAS ELECTED COMMISSIONER OF THE DEPARTMENT OF PUBLIC
PARKS AND STREETS IN APRIL, 1931, FOR A TERM WHICH WAS TO EXPIRE IN
MAY, 1935.  BUT IN 1934 THE DATE FOR THE ELECTION OF OFFICERS WAS
POSTPONED TO NOVEMBER, 1936, AND APPELLANT'S TERM OF OFFICE WAS
EXTENDED ACCORDINGLY.  LATER, BY ACT NO. 13 OF THE THIRD EXTRAORDINARY
SESSION OF 1934, THE LEGISLATURE ABOLISHED THE OFFICE OF COMMISSIONER
OF PUBLIC PARKS AND STREETS AND TRANSFERRED ITS FUNCTIONS TO THE
MAYOR.  THERE WAS ALSO CREATED A DEPARTMENT OF STATE COORDINATION AND
PUBLIC WELFARE AND PROVISION WAS MADE FOR THE ELECTION OF A
COMMISSIONER OF THAT DEPARTMENT.  THIS WAS FOLLOWED BY A PROVISO THAT
THE PERSON THEN FILLING THE OFFICE OF COMMISSIONER OF THE DEPARTMENT OF
PUBLIC PARKS AND STREETS SHOULD BE ENTITLED TO ENTER THE EMPLOY OF THE
CITY, AT A SALARY EQUAL TO THAT THERETOFORE ALLOWED TO THE
COMMISSIONER, "IN THE WORK UNDER THE SAID MAYOR AND SAID PERSON SHALL
HAVE THE RIGHT TO CONTINUE IN SAID SERVICE DURING GOOD BEHAVIOR UNTIL
THE NEXT GENERAL ELECTION OF OFFICERS IN SAID MUNICIPALITY."  APPELLANT
WAS THE PERSON THUS DESCRIBED, AND ACCORDINGLY, IN JANUARY, 1935, THE
COMMISSION COUNCIL ADOPTED AN ORDINANCE RECITING THE STATUTORY
PROVISIONS AND PROVIDING FOR THE EMPLOYMENT OF APPELLANT AS
SUPERINTENDENT OF PUBLIC PARKS AND STREETS, UNDER THE MAYOR, "AT THE
SAME SALARY NOW PROVIDED FOR THE COMMISSIONER OF PUBLIC PARKS AND
STREETS, HIS EMPLOYMENT TO CONTINUE DURING GOOD BEHAVIOR AND UNTIL THE
NEXT GENERAL ELECTION FOR MUNICIPAL OFFICERS."  APPELLANT ACCEPTED THE
EMPLOYMENT AND ENTERED UPON THE DISCHARGE OF HIS DUTIES, AS TO THE
FAITHFUL PERFORMANCE OF WHICH NO QUESTION IS RAISED. 

THE STATE COURT HELD THAT THE POSITION IN QUESTION WAS "IN THE NATURE
OF A PUBLIC OFFICE" WITH GOVERNMENTAL FUNCTIONS AND THAT THE
LEGISLATIVE ACTION IN ABOLISHING IT DID NOT CONTRAVENE THE
CONSTITUTIONAL PROVISION AS TO IMPAIRMENT OF CONTRACTS.  THE COURT
REFERRED TO THE PROVISION OF THE ACT OF 1912 ABOVEMENTIONED THAT "ALL
THE POWERS AND AUTHORITY" CONFERRED UPON THE CITY BY ITS CHARTER, NOT
INCONSISTENT WITH THE PROVISIONS OF THE ACT, WERE DECLARED TO BE
"RESERVED TO THE CITY UNIMPAIRED" TO BE EXERCISED BY THE MAYOR AND
COMMISSION COUNCIL.  FURTHER, THAT BY THE CHARTER OF THE CITY (SEC. 7
OF ACT NO. 169 OF 1898) IT WAS PROVIDED "THAT THE 'EMPLOYEES' OF THE
CITY ARE REMOVABLE AS THEREINAFTER SPECIFIED" AND THAT BY A SUBSEQUENT
PROVISION (SEC. 52 AS AMENDED BY ACT NO. 249 OF 1914) IT WAS DECLARED
THAT "ALL OFFICERS ELECTED BY THE COUNCIL SHALL BE REMOVABLE BY THE
COUNCIL AT PLEASURE."  AGAIN, THAT BY THE ACT OF 1912 IT WAS DECLARED
THAT "ANY OFFICIAL OR ASSISTANT ELECTED OR APPOINTED BY THE COMMISSION
COUNCIL MAY BE REMOVED FROM OFFICE AT ANY TIME BY A VOTE OF THE
MAJORITY OF THE MEMBERS OF THE COUNCIL," EXCEPT AS THEREIN OTHERWISE
PROVIDED, AND THAT THERE WAS NO EXCEPTION ELSEWHERE THAT MIGHT BE
APPLICABLE TO THE PRESENT CASE.  THE COURT SAID THAT THE GENERAL RULE
THAT A MUNICIPAL COUNCIL "MAY REMOVE AT ANY TIME ANY OFFICIAL APPOINTED
OR ELECTED BY THE COUNCIL, OR ANYONE EMPLOYED BY THE COUNCIL TO PERFORM
GOVERNMENTAL FUNCTIONS," HAD BEEN RECOGNIZED IN ITS FORMER DECISIONS,
WHICH WERE CITED.  183 SO. AT P. 172. 

IN THIS VIEW THE STATE COURT WAS OF THE OPINION THAT THE CASE WAS NOT
CONTROLLED BY HALL V. WISCONSIN, 103 U.S. 5, UPON WHICH APPELLANT
RELIES, - A CASE OF A CONTRACT WITH A STATE FOR THE PERFORMANCE OF
SPECIFIC SERVICES OF A SCIENTIFIC CHARACTER UNDER A STATUTE PROVIDING
FOR "A GEOLOGICAL, MINERALOGICAL AND AGRICULTURAL SURVEY" - A CONTRACT
WHICH WAS HELD TO BE WITHIN THE CONSTITUTIONAL PROTECTION, AND RATHER
THAT THE CASE WAS GOVERNED BY THE GENERAL DOCTRINE REAFFIRMED IN NEWTON
V. COMMISSIONERS, 100 U.S. 548, 557.  WHILE THE PARTICULAR QUESTION WAS
NOT INVOLVED IN THAT CASE, THE COURT STATED THE FAMILIAR PRINCIPLE THAT
"THE LEGISLATIVE POWER OF A STATE, EXCEPT SO FAR AS RESTRAINED BY ITS
OWN CONSTITUTION, IS AT ALL TIMES ABSOLUTE WITH RESPECT TO ALL OFFICES
WITHIN ITS REACH.  IT MAY AT PLEASURE CREATE OR ABOLISH THEM, OR MODIFY
THEIR DUTIES.  IT MAY ALSO SHORTEN OR LENGTHEN THE TERM OF SERVICE." 
ID., P. 559.  SEE, ALSO, BUTLER V. PENNSYLVANIA, 10 HOW.  402; CRENSHAW
V. UNITED STATES, 134 U.S. 99, 106; PHELPS V. BOARD OF EDUCATION, 300
U.S. 319, 322; DODGE V. BOARD OF EDUCATION, 302 U.S. 74, 78, 79. 

WHILE THIS COURT IN APPLYING THE CONTRACT CLAUSE OF THE CONSTITUTION
MUST REACH AN INDEPENDENT JUDGMENT AS TO THE EXISTENCE AND NATURE OF
THE ALLEGED CONTRACT (LARSON V. SOUTH DAKOTA, 278 U.S. 429, 433; UNITED
STATES MORTGAGE CO. V. MATTHEWS, 293 U.S. 232, 236), WE ATTACH GREAT
WEIGHT TO THE VIEWS OF THE HIGHEST COURT OF THE STATE.  COOMBES V.
GETZ, 285 U.S. 434, 441; PHELPS V. BOARD OF EDUCATION, SUPRA; DODGE V.
BOARD OF EDUCATION, SUPRA.  IN THIS INSTANCE WE FIND NO REASON FOR
DISAGREEING WITH THE CONCLUSION REACHED BY THE SUPREME COURT OF
LOUISIANA.  THE ACT PROVIDING FOR APPELLANT'S "EMPLOYMENT" DID NOT
CHANGE THE NATURE OF THE DUTIES WHICH HE HAD BEEN PERFORMING AS
COMMISSIONER.  INSTEAD OF ACTING AS COMMISSIONER HE RENDERED THE SAME
SERVICE AS SUPERINTENDENT OF PUBLIC PARKS AND STREETS UNDER THE CONTROL
OF THE MAYOR.  HIS DUTIES STILL DISTINCTLY PERTAINED TO THE PERFORMANCE
OF THE ORDINARY GOVERNMENTAL FUNCTIONS OF THE CITY IN THE SUPERVISION
OF ITS STREETS AND PARKS AND HIS POSITION AS SUPERINTENDENT BOTH WITH
RESPECT TO DUTIES AND TENURE MAY PROPERLY BE REGARDED AS SUBJECT TO THE
CONTROL OF THE LEGISLATURE AND OF THE COMMISSION COUNCIL ACTING UNDER
ITS AUTHORITY. 

THE JUDGMENT IS AFFIRMED. 
..END :


















HONEYMAN V. JACOBS, 306 U.S. 539 


NO. 465.  SUBMITTED FEBRUARY 10, 1939.  - DECIDED APRIL 17, 1939.  - 278
N.Y. 467 - 17 N.E.2D 131, AFFIRMED. 


A STATE LAW PROVIDING THAT A MORTGAGEE WHO HAS BID IN THE PROPERTY AT
FORECLOSURE SALE SHALL HAVE NO DEFICIENCY JUDGMENT IF THE VALUE OF THE
PROPERTY EQUALS THE AMOUNT OF THE DEBT AND INTEREST PLUS COSTS AND
EXPENSES, DOES NOT IMPAIR THE OBLIGATIONS OF PREEXISTING MORTGAGE
CONTRACTS WITHIN THE INTENDMENT OF THE CONTRACT CLAUSE OF THE
CONSTITUTION.  RICHMOND MORTGAGE CORP. V. WACHOVIA BANK, 300 U.S. 124,
128.  P. 545. 

HONEYMAN V. JACOBS ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW YORK. 

APPEAL FROM A JUDGMENT AFFIRMING A JUDGMENT WHICH CONFIRMED A
FORECLOSURE SALE TO THE APPELLANT AS MORTGAGEE-PURCHASER BUT OVERRULED
HIS MOTION FOR A DEFICIENCY JUDGMENT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE, COMING HERE ON APPEAL FROM THE STATE COURT, PRESENTS THE
QUESTION OF THE VALIDITY UNDER THE CONTRACT CLAUSE OF THE FEDERAL
CONSTITUTION OF SEC. 1083A OF THE CIVIL PRACTICE ACT OF NEW YORK
(CHAPTER 794 OF THE LAWS OF 1933)  FN1  UNDER WHICH THE APPELLANT, A
MORTGAGEE OF REAL PROPERTY, WAS DENIED A DEFICIENCY JUDGMENT IN A
FORECLOSURE SUIT, WHERE THE STATE COURT FOUND THAT THE VALUE OF THE
PROPERTY PURCHASED BY THE MORTGAGEE AT THE FORECLOSURE SALE WAS EQUAL
TO THE DEBT SECURED BY THE MORTGAGE. 

THE MORTGAGE WAS EXECUTED IN FEBRUARY, 1928, THAT IS, PRIOR TO THE
LEGISLATION IN QUESTION, TO SECURE A BOND FOR $15,000, WITH INTEREST,
PAYABLE IN FEBRUARY, 1931.  ON DEFAULT IN PAYMENT, APPELLANT, THE
HOLDER OF THE BOND AND MORTGAGE, BROUGHT SUIT FOR FORECLOSURE AND
JUDGMENT FOR FORECLOSURE AND SALE WAS ENTERED IN APRIL, 1938.  THE
PROPERTY WAS THEN SOLD TO APPELLANT FOR THE SUM OF $7500.  IN THE
REFEREE'S REPORT OF SALE THE AMOUNT DUE ON THE BOND AND MORTGAGE WAS
STATED TO BE $15,771.17, AND THE TAXES, FEES AND EXPENSES AMOUNTED TO
$1319.03, LEAVING A DEFICIENCY OF $9590.20. 

DEFICIENCY JUDGMENT SHOULD BE DETERMINED IN THE FORECLOSURE SUIT. 
HONEYMAN V. HANAN, 275 N.Y. 382; 9 N.E.2D 970; 302 U.S. 375, 378. 
ACCORDINGLY, APPELLANT MADE HIS MOTION IN THAT SUIT TO CONFIRM THE SALE
AND FOR DEFICIENCY JUDGMENT.  PROOF WAS SUBMITTED TO THE COURT THAT THE
PRESENT VALUE OF THE PROPERTY WAS $25,318.  IT DOES NOT APPEAR THAT THE
CORRECTNESS OF THIS VALUATION WAS CONTESTED.  THE COURT THEREUPON
CONFIRMED THE SALE AND DENIED THE MOTION FOR DEFICIENCY JUDGMENT UPON
THE GROUND "THAT THE VALUE OF THE PROPERTY IS EQUAL TO THE DEBT OF THE
PLAINTIFF."  APPELLANT'S CONTENTION THAT SEC. 1083-A AS THUS APPLIED
VIOLATED THE CONTRACT CLAUSE OF THE CONSTITUTION WAS OVERRULED AND THIS
RULING WAS SUSTAINED BY THE COURT OF APPEALS.  278 N.Y. 467; 17 N.E.2D
131.  THE COURT FOLLOWED ITS EARLIER DECISIONS, CITING HONEYMAN V.
HANAN, 275 N.Y. 382; 9 N.E.2D 970; KLINKE V. SAMUELS, 264 N.Y. 144; 190
N.E. 324; CITY BANK FARMERS TRUST CO. V. ARDLEA CORPORATION, 267 N.Y.
224; 196 N.E. 34. 

APPELLANT INVOKES THE PRINCIPLE THAT THE OBLIGATION OF A CONTRACT IS
IMPAIRED BY SUBSEQUENT LEGISLATION WHICH UNDER THE FORM OF MODIFYING
THE REMEDY IMPAIRS SUBSTANTIAL RIGHTS.  SEE STURGES V. CROWNINSHIELD, 4
WHEAT.  122, 200; VON HOFFMAN V. CITY OF QUINCY, 4 WALL.  535, 553,
554; ANTONI V. GREENHOW, 107 U.S. 769, 775; HOME BUILDING & LOAN ASSN.
V. BLAISDELL, 290 U.S. 398, 430, 434, AND CASES CITED, NOTE 13; W.B.
WORTHEN CO. V. THOMAS, 292 U.S. 426, 433; W.B. WORTHEN CO. V.
KAVANAUGH, 295 U.S. 56, 60.  AS WE SAID IN RICHMOND MORTGAGE CORP. V.
WACHOVIA BANK, 300 U.S. 124, 128, "THE LEGISLATURE MAY MODIFY, LIMIT OR
ALTER THE REMEDY FOR ENFORCEMENT OF A CONTRACT WITHOUT IMPAIRING ITS
OBLIGATION, BUT IN SO DOING, IT MAY NOT DENY ALL REMEDY OR SO
CIRCUMSCRIBE THE EXISTING REMEDY WITH CONDITIONS AND RESTRICTIONS AS
SERIOUSLY TO IMPAIR THE VALUE OF THE RIGHT." 

WE HAVE HERETOFORE DECIDED THAT THE REQUIREMENT OF SEC. 1083-A THAT
THE RIGHT TO A DEFICIENCY JUDGMENT MUST BE DETERMINED IN THE
FORECLOSURE SUIT RAISES NO SUBSTANTIAL QUESTION UNDER THE CONTRACT
CLAUSE.  HONEYMAN V. HANAN, 302 U.S. AT P. 378.  THE QUESTION IS
WHETHER IN THE INSTANT CASE THE DENIAL OF A DEFICIENCY JUDGMENT
SUBSTANTIALLY IMPAIRED APPELLANT'S CONTRACT RIGHT.  THE BOND PROVIDED
FOR THE PAYMENT TO HIM OF $15,000 WITH THE STIPULATED INTEREST.  THE
MORTGAGE WAS EXECUTED TO SECURE PAYMENT OF THAT INDEBTEDNESS.  THE
CONTRACT CONTEMPLATED THAT THE MORTGAGEE SHOULD MAKE HIMSELF WHOLE, IF
NECESSARY, OUT OF THE SECURITY BUT NOT THAT HE SHOULD BE ENRICHED AT
THE EXPENSE OF THE DEBTOR OR REALIZE MORE THAN WHAT WOULD REPAY THE
DEBT WITH THE COSTS AND EXPENSES OF THE SUIT.  HAVING A TOTAL DEBT OF
$15,771.17, WITH EXPENSES, ETC., OF $1319.03, APPELLANT HAS OBTAINED
THROUGH HIS FORECLOSURE SUIT THE PROPERTY OF THE DEBTOR FOUND WITHOUT
QUESTION TO BE WORTH OVER $25,000.  HE HAS THAT IN HAND.  WE KNOW OF NO
PRINCIPLE WHICH ENTITLES HIM TO RECEIVE ANYTHING MORE.  ASSUMING THAT
THE STATUTE BEFORE ITS AMENDMENT PERMITTED A RECOVERY OF AN ADDITIONAL
AMOUNT THROUGH A SO-CALLED DEFICIENCY JUDGMENT, WE CANNOT SAY THAT
THERE WAS ANY CONSTITUTIONAL SANCTION FOR SUCH A PROVISION WHICH
PRECLUDED THE LEGISLATURE FROM CHANGING IT SO AS TO CONFINE THE
CREDITOR TO SECURING THE SATISFACTION OF HIS ENTIRE DEBT. 

APPROPRIATE EQUITABLE POWERS.  BY THE NORMAL EXERCISE OF THESE POWERS,
A COURT OF EQUITY IN A FORECLOSURE SUIT WOULD HAVE FULL AUTHORITY TO
FIX THE TERMS AND TIME OF THE FORECLOSURE SALE AND TO REFUSE TO CONFIRM
SALES UPON EQUITABLE GROUNDS WHERE THEY WERE FOUND TO BE UNFAIR OR THE
PRICE BID WAS INADEQUATE.  HOME BUILDING & LOAN ASSN. V. BLAISDELL,
SUPRA, AT PP. 446, 447, AND CASES CITED, NOTE 18.  RICHMOND MORTGAGE
CORP. V. WACHOVIA BANK, SUPRA, AT P. 129.  IN THIS CONTROL OVER THE
FORECLOSURE SALE UNDER ITS DECREE, THE COURT COULD CONSIDER AND
DETERMINE THE VALUE OF THE PROPERTY SOLD TO THE MORTGAGEE AND WHAT THE
MORTGAGEE WOULD THUS REALIZE UPON THE MORTGAGE DEBT IF THE SALE WERE
CONFIRMED.  SEE MONAGHAN V. MAY, 242 APP. DIV. 64, 67; 273 N.Y.S. 475;
GUARANTEED TITLE & MORTGAGE CO. V. SCHEFFRES, 247 APP. DIV. 294; 285
N.Y.S. 464. 

THE REASONING OF THIS COURT IN RICHMOND MORTGAGE CORP. V. WACHOVIA
BANK, SUPRA, IS APPLICABLE AND GOVERNS OUR DECISION.  THERE, A STATUTE
OF NORTH CAROLINA, ENACTED AFTER THE EXECUTION OF NOTES SECURED BY A
DEED OF TRUST, PROVIDED THAT WHERE A MORTGAGEE CAUSED THE SALE OF
MORTGAGED PROPERTY BY A TRUSTEE AND, BECOMING THE PURCHASER FOR A SUM
LESS THAN THE AMOUNT OF THE DEBT, THEREAFTER BROUGHT AN ACTION FOR A
DEFICIENCY, THE DEFENDANT WAS ENTITLED TO SHOW, BY WAY OF DEFENSE AND
SET-OFF, THAT THE PROPERTY SOLD WAS FAIRLY WORTH THE AMOUNT OF THE DEBT
OR THAT THE SUM BID WAS SUBSTANTIALLY LESS THAN THE TRUE VALUE OF THE
PROPERTY, AND THUS DEFEAT THE CLAIM IN WHOLE OR IN PART.  UNDER THE
FORMER LAW OF THAT STATE, WHEN THE MORTGAGEE BECAME THE PURCHASER AT
THE TRUSTEE'S SALE UNDER A POWER IN THE DEED OF TRUST, HE MIGHT
THEREAFTER IN AN ACTION AT LAW RECOVER THE DIFFERENCE BETWEEN THE PRICE
HE HAD BID AND THE AMOUNT OF THE INDEBTEDNESS.  WE FOUND THAT THE OTHER
REMEDY BY BILL IN EQUITY TO FORECLOSE THE MORTGAGE WAS STILL
AVAILABLE.  AND THAT IN SUCH A PROCEEDING THE CHANCELLOR COULD SET
ASIDE THE SALE IF THE PRICE BID WAS INADEQUATE, AND, IN ADDITION, HE
MIGHT AWARD A MONEY DECREE FOR THE AMOUNT BY WHICH THE AVAILS OF THE
SALE FELL BELOW THE AMOUNT OF THE INDEBTEDNESS BUT THAT "HIS DECREE IN
THAT BEHALF WOULD BE GOVERNED BY WELL-UNDERSTOOD PRINCIPLES OF
EQUITY."  THE COURT WAS OF THE OPINION THAT THE STATUTE MODIFYING ONE
OF THE EXISTING REMEDIES FOR REALIZING THE VALUE OF THE SECURITY COULD
NOT "FAIRLY BE SAID TO DO MORE THAN RESTRICT THE MORTGAGEE TO THAT FOR
WHICH HE CONTRACTED, NAMELY, PAYMENT IN FULL."  THE ACT RECOGNIZED THE
OBLIGATION OF HIS CONTRACT AND HIS RIGHT TO ITS FULL ENFORCEMENT BUT
LIMITED THAT RIGHT "SO AS TO PREVENT HIS OBTAINING MORE THAN HIS DUE. 
BY THE OLD AND WELL KNOWN REMEDY OF FORECLOSURE, A MORTGAGEE WAS SO
LIMITED BECAUSE OF THE CHANCELLOR'S CONTROL OF THE PROCEEDING."  THAT
"CLASSICAL METHOD" OF REALIZATION UPON A MORTGAGE SECURITY THROUGH A
FORECLOSURE SUIT HAD ALWAYS BEEN UNDERSTOOD "TO BE FAIR TO BOTH PARTIES
TO THE CONTRACT AND TO AFFORD AN ADEQUATE REMEDY TO THE MORTGAGEE."  IN
THAT VIEW IT APPEARED THAT THE NEW LAW AS TO PROCEEDINGS FOR A
DEFICIENCY JUDGMENT AFTER THE EXERCISE OF A POWER OF SALE "MERELY
RESTRICTED THE EXERCISE OF THE CONTRACTUAL REMEDY TO PROVIDE A
PROCEDURE WHICH, TO SOME EXTENT, RENDERS THE REMEDY BY A TRUSTEE'S SALE
CONSISTENT WITH THAT IN EQUITY."  AND THAT DID "NOT IMPAIR THE
OBLIGATION OF THE CONTRACT." 

WE REACH A SIMILAR RESULT HERE UPON THE SAME GROUND - THAT UNDER THE
FINDING OF THE STATE COURT THE MORTGAGEE HAS OBTAINED SATISFACTION OF
HIS DEBT AND THAT THE DENIAL BY THE STATUTE OF A FURTHER RECOVERY DOES
NOT VIOLATE THE CONSTITUTIONAL PROVISION. 

THE JUDGMENT IS AFFIRMED. 

FN1  SECTION 1083-A, PROVIDES: 

"1083-A.  LIMITATION UPON DEFICIENCY JUDGMENTS DURING EMERGENCY
PERIOD.  - NO JUDGMENT SHALL BE GRANTED FOR ANY RESIDUE OF THE DEBT
REMAINING UNSATISFIED AS PRESCRIBED BY THE PRECEDING SECTION WHERE THE
MORTGAGED PROPERTY SHALL BE SOLD DURING THE EMERGENCY, EXCEPT AS HEREIN
PROVIDED.  SIMULTANEOUSLY WITH THE MAKING OF A MOTION FOR AN ORDER
CONFIRMING THE SALE OR IN ANY EVENT WITHIN NINETY DAYS AFTER THE DATE
OF THE SALE, THE PARTY TO WHOM SUCH RESIDUE SHALL BE OWING MAY MAKE A
MOTION IN THE ACTION FOR LEAVE TO ENTER A DEFICIENCY JUDGMENT UPON
NOTICE TO THE PARTY AGAINST WHOM SUCH JUDGMENT IS SOUGHT OR THE
ATTORNEY WHO SHALL HAVE APPEARED FOR SUCH PARTY IN SUCH ACTION.  SUCH
NOTICE SHALL BE SERVED PERSONALLY OR IN SUCH OTHER MANNER AS THE COURT
MAY DIRECT.  UPON SUCH MOTION THE COURT, WHETHER OR NOT THE RESPONDENT
APPEARS, SHALL DETERMINE, UPON AFFIDAVIT OR OTHERWISE AS IT SHALL
DIRECT, THE FAIR AND REASONABLE MARKET VALUE OF THE MORTGAGED PREMISES
AS OF THE DATE OF SALE OR SUCH NEAREST EARLIER DATE AS THERE SHALL HAVE
BEEN ANY MARKET VALUE THEREOF AND SHALL MAKE AN ORDER DIRECTING THE
ENTRY OF A DEFICIENCY JUDGMENT.  SUCH DEFICIENCY JUDGMENT SHALL BE FOR
AN AMOUNT EQUAL TO THE SUM OF THE AMOUNT OWING BY THE PARTY LIABLE AS
DETERMINED BY THE JUDGMENT WITH INTEREST, PLUS THE AMOUNT OWING ON ALL
PRIOR LIENS AND ENCUMBRANCES WITH INTEREST, PLUS COSTS AND
DISBURSEMENTS OF THE ACTION INCLUDING THE REFEREE'S FEE AND
DISBURSEMENTS, LESS THE MARKET VALUE AS DETERMINED BY THE COURT OR THE
SALE PRICE OF THE PROPERTY WHICHEVER SHALL BE THE HIGHER.  IF NO MOTION
FOR A DEFICIENCY JUDGMENT SHALL BE MADE AS HEREIN PRESCRIBED THE
PROCEEDS OF THE SALE REGARDLESS OF AMOUNT SHALL BE DEEMED TO BE IN FULL
SATISFACTION OF THE MORTGAGE DEBT AND NO RIGHT TO RECOVER ANY
DEFICIENCY IN ANY ACTION OR PROCEEDING SHALL EXIST." 
..END :





















CARRIER V. BRYANT, 306 U.S. 545 


NO. 541.  ARGUED MARCH 27, 28, 1939.  - DECIDED APRIL 17, 1939.  - 214
N.C. 174 - 198 S.E. 651, AFFIRMED. 


NEGOTIABLE NOTES AND UNITED STATES BONDS PURCHASED, AND HELD AS
INVESTMENTS, FOR AN INCOMPETENT WORLD WAR VETERAN BY HIS GUARDIAN OUT
OF "PAYMENTS OF BENEFITS" MADE TO HIM BY THE UNITED STATES UNDER LAWS
RELATING TO SUCH VETERANS, HELD NOT EXEMPT UNDER SEC. 3 OF THE ACT OF
AUGUST 12, 1935 FROM EXECUTION UPON A JUDGMENT AGAINST THE
INCOMPETENT.  P. 547. 

CARRIER ET AL. V. BRYANT. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

CERTIORARI, POST, P. 622, TO REVIEW THE AFFIRMANCE OF A DECREE
DISSOLVING AN ORDER WHICH RESTRAINED RESPONDENT FROM EXECUTING UPON A
JUDGMENT. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE SUPREME COURT, NORTH CAROLINA, RULED THAT NEGOTIABLE NOTES AND
UNITED STATES BONDS PURCHASED, AND HELD AS INVESTMENTS, FOR AN
INCOMPETENT WORLD WAR VETERAN BY HIS GUARDIAN OUT OF "PAYMENTS OF
BENEFITS" AUTHORIZED UNDER LAWS RELATING TO SUCH VETERANS, WERE SUBJECT
TO EXECUTION UPON A JUDGMENT AGAINST THE INCOMPETENT.  PETITIONERS
CHALLENGE THAT VIEW AND CLAIM IMMUNITY UNDER SEC. 3 ACT AUGUST 12,
1935(C. 510, 49 STAT. 607, 609; 38 U.S.C. SEC. 454A). 

"SEC. 3.  PAYMENTS OF BENEFITS DUE OR TO BECOME DUE SHALL NOT BE
ASSIGNABLE, AND SUCH PAYMENTS MADE TO, OR ON ACCOUNT OF, A BENEFICIARY
UNDER ANY OF THE LAWS RELATING TO VETERANS SHALL BE EXEMPT FROM
TAXATION, SHALL BE EXEMPT FROM THE CLAIMS OF CREDITORS, AND SHALL NOT
BE LIABLE TO ATTACHMENT, LEVY, OR SEIZURE BY OR UNDER ANY LEGAL OR
EQUITABLE PROCESS WHATEVER, EITHER BEFORE OR AFTER RECEIPT BY THE
BENEFICIARY.  SUCH PROVISIONS SHALL NOT ATTACH TO CLAIMS OF THE UNITED
STATES ARISING UNDER SUCH LAWS NOR SHALL THE EXEMPTION HEREIN CONTAINED
AS TO TAXATION EXTEND TO ANY PROPERTY PURCHASED IN PART OR WHOLLY OUT
OF SUCH PAYMENTS.  SECTION 4747 OF THE REVISED STATUTES AND SECTION 22
OF THE WORLD WAR VETERANS' ACT, 1924, ARE HEREBY REPEALED, AND ALL
OTHER ACTS INCONSISTENT HEREWITH ARE HEREBY MODIFIED ACCORDINGLY.  THE
PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO PROHIBIT THE
ASSIGNMENT BY ANY PERSON, TO WHOM CONVERTED INSURANCE SHALL BE PAYABLE
UNDER TITLE III OF THE WORLD WAR VETERANS' ACT, 1924, OF HIS INTEREST
IN SUCH INSURANCE TO ANY OTHER MEMBER OF THE PERMITTED CLASS OF
BENEFICIARIES. 

"SEC. 5.  THAT THIS ACT SHALL TAKE EFFECT AND BE IN FORCE FROM AND
AFTER ITS PASSAGE, BUT THE PROVISIONS HEREOF SHALL APPLY TO PAYMENTS
MADE HERETOFORE UNDER ANY OF THE ACTS MENTIONED HEREIN." 

THE CONCLUSION BELOW IS SUPPORTED BY MCCURRY V. PEEK, (1936) 54 GA.
APP. 341; 187 S.E. 854, THE ONLY OTHER OPINION SQUARELY UPON THE POINT
HERE INVOLVED WHICH HAS BEEN CALLED TO OUR ATTENTION. 

THE LANGUAGE OF SEC. 3, ALTHOUGH NOT ENTIRELY FELICITOUS, CONFLICTS
WITH THE PETITIONERS' INSISTENCE. 

THE FIRST SENTENCE GRANTS EXEMPTION FROM TAXATION, CLAIMS OF
CREDITORS, ATTACHMENT, LEVY OR SEIZURE UNDER ANY LEGAL PROCESS
WHATEVER.  THE THINGS EXEMPTED ARE "PAYMENTS OF BENEFITS" DUE OR TO
BECOME DUE EITHER BEFORE OR AFTER RECEIPT BY THE BENEFICIARY. 

INVESTMENTS PURCHASED WITH MONEY RECEIVED IN SETTLEMENT OF BENEFITS
ARE NOT SUCH PAYMENTS DUE OR TO BECOME DUE.  ACCORDINGLY, GIVING THE
WORDS EMPLOYED THEIR ORDINARY MEANING, THE NOTES AND BONDS IN QUESTION
ARE NOT EXEMPTED BY THE FIRST SENTENCE IN SEC. 3.  IT LEFT THEM, LIKE
OTHER PROPERTY, SUBJECT TO TAXATION, CLAIMS OF CREDITORS, AND LEGAL
PROCESS. 

THE SECOND SENTENCE IN THE SECTION CLEARLY RECOGNIZES THE DISTINCTION
BETWEEN BENEFIT PAYMENTS AND PROPERTY PURCHASED WITH MONEY THEREFROM. 
IT DECLARES THE EXEMPTION PROVISIONS IN THE FIRST SENTENCE SHALL NOT
ATTACH TO CLAIMS OF THE UNITED STATES; ALSO THAT EXEMPTION FROM
TAXATION SHALL NOT EXTEND TO PROPERTY PURCHASED OUT OF BENEFIT
PAYMENTS.  NOTHING IS SAID CONCERNING CLAIMS OF CREDITORS. 
NEVERTHELESS, PETITIONERS SEEM TO MAINTAIN, IMMUNITY FROM THESE MUST BE
INFERRED.  BUT A MERE DECLARATION THAT INVESTMENTS ALWAYS SUBJECT TO
TAXATION SHALL NOT ENJOY EXEMPTION THEREFROM AFFORDS NO BASIS FOR
HOLDING THEM FREE FROM CLAIMS OF CREDITORS.  ALTHOUGH THE FIRST
SENTENCE EXTENDED NO IMMUNITY TO INVESTMENTS, APPARENTLY OUT OF
ABUNDANT CAUTION, THE SECOND DECLARED THEM SUBJECT TO TAXATION. 

WE FIND NOTHING IN THE HISTORY OR SUPPOSED PURPOSE OF THE ENACTMENT
ADEQUATE TO SUPPORT A CONSTRUCTION NOT IN ACCORD WITH THE ORDINARY
IMPORT OF THE WORDS EMPLOYED. 

UNDER SPICER V. SMITH, (1933) 288 U.S. 430, 434, PAYMENT OF BENEFITS
TO THE GUARDIAN VESTED TITLE IN THE WARD.  THE EXEMPTIONS OF THE
STATUTE WOULD NOT BE DIFFERENT IF THE WARD HAD PERSONALLY RECEIVED THE
PAYMENTS. 

REMAINED IN FORCE UNTIL REPEALED BY ACT AUGUST 12, 1935.  IT PROVIDED
 

"NO SUM OF MONEY DUE, OR TO BECOME DUE, TO ANY PENSIONER, SHALL BE
LIABLE TO ATTACHMENT, LEVY, OR SEIZURE BY OR UNDER ANY LEGAL OR
EQUITABLE PROCESS WHATEVER, WHETHER THE SAME REMAINS WITH THE PENSION
OFFICE, OR ANY OFFICER OR AGENT THEREOF, OR IS IN COURSE OF
TRANSMISSION TO THE PENSIONER ENTITLED THERETO, BUT SHALL INSURE WHOLLY
TO THE BENEFIT OF SUCH PENSIONER." 

THIS SECTION WAS CONSIDERED IN MCINTOSH V. AUBREY, (1902) 185 U.S.
122, 124, WHERE IT WAS UNSUCCESSFULLY CLAIMED THAT PROPERTY PURCHASED
WITH PENSION MONEY COULD NOT BE SEIZED UNDER AN EXECUTION.  IT WAS
THERE SAID - 

"THE LANGUAGE OF THE SECTION OF ITSELF SEEMS TO PRESENT NO DIFFICULTY,
AND IF DOUBT ARISES AT ALL IT IS ONLY ON ACCOUNT OF THE DECISIONS OF
COURTS WHOSE OPINIONS ARE ALWAYS ENTITLED TO RESPECT.  ...  BUT
NOTWITHSTANDING, WE THINK THE PURPOSE OF CONGRESS IS CLEARLY
EXPRESSED.  IT IS NOT THAT PENSION MONEY SHALL BE EXEMPT FROM
ATTACHMENT IN ALL OF ITS SITUATIONS AND TRANSMUTATIONS.  IT IS ONLY TO
BE EXEMPT IN ONE SITUATION, TO WIT, WHEN 'DUE OR TO BECOME DUE.'  FROM
THAT SITUATION THE PENSION MONEY OF PLAINTIFF IN ERROR HAD DEPARTED." 

613(38 U.S.C., SEC. 454), REPEALED BY ACT AUGUST 4, 1935, PROVIDED - 

"THAT THE COMPENSATION, INSURANCE, AND MAINTENANCE AND SUPPORT
ALLOWANCE PAYABLE UNDER TITLES II, III, AND IV, RESPECTIVELY, SHALL NOT
BE ASSIGNABLE; SHALL NOT BE SUBJECT TO THE CLAIMS OF CREDITORS OF ANY
PERSON TO WHOM AN AWARD IS MADE UNDER TITLES II, III, OR IV; AND SHALL
BE EXEMPT FROM ALL TAXATION:  PROVIDED, THAT SUCH COMPENSATION,
INSURANCE, AND MAINTENANCE AND SUPPORT ALLOWANCE SHALL BE SUBJECT TO
ANY CLAIMS WHICH THE UNITED STATES MAY HAVE, UNDER TITLES II, III, IV,
AND V, AGAINST THE PERSON ON WHOSE ACCOUNT THE COMPENSATION, INSURANCE,
OR MAINTENANCE AND SUPPORT ALLOWANCE IS PAYABLE.  ..." 

TROTTER V. TENNESSEE, (1933) 290 U.S. 354, 356-357, CONSTRUED THIS
AS COMPENSATION, AND CLAIMED EXEMPTION FROM TAXATION.  WE SAID - 

"THE MONEYS PAYABLE TO THIS SOLDIER WERE UNQUESTIONABLY EXEMPT TILL
THEY CAME INTO HIS HANDS OR THE HANDS OF HIS GUARDIAN.  MCINTOSH V.
AUBREY, 185 U.S. 122.  WE LEAVE THE QUESTION OPEN WHETHER THE EXEMPTION
REMAINED IN FORCE WHILE THEY CONTINUED IN THOSE HANDS OR ON DEPOSIT IN
A BANK.  ... BE THAT AS IT MAY, WE THINK IT VERY CLEAR THAT THERE WAS
AN END TO THE EXEMPTION WHEN THEY LOST THE QUALITY OF MONEYS AND WERE
CONVERTED INTO LAND AND BUILDINGS.  THE STATUTE SPEAKS OF
'COMPENSATION, INSURANCE, AND MAINTENANCE AND SUPPORT ALLOWANCE
PAYABLE' TO THE VETERAN, AND DECLARES THAT THESE SHALL BE EXEMPT.  WE
SEE NO TOKEN OF A PURPOSE TO EXTEND A LIKE IMMUNITY TO PERMANENT
INVESTMENTS OR THE FRUITS OF BUSINESS ENTERPRISES." 

IN 1935 CONGRESS GAVE MUCH CONSIDERATION TO THE EXEMPTION WHICH
SHOULD BE ACCORDED TO VETERANS.  THE OUTCOME IS SHOWN BY SECS. 3 AND 5,
ACT AUGUST 12, 1935, ANTE, P. 546. 

300 U.S. 245, 249-250.  EXEMPTION WAS SUCCESSFULLY CLAIMED FOR BANK
DEPOSITS STANDING IN THE NAME OF A VETERAN'S GUARDIAN UPON THE VIEW
THAT SUCH DEPOSITS, MADE IN THE ORDINARY COURSE AND SUBJECT TO DEMAND
FOR THE VETERAN'S USE, SHOULD BE TREATED AS IF MONEY IN HIS HANDS. 

"THE WORLD WAR VETERANS' ACT, 1924, PROVIDED THAT THE COMPENSATION
AND INSURANCE ALLOWANCES SHOULD BE 'EXEMPT FROM ALL TAXATION.'  THE ACT
OF 1935 IS MORE SPECIFIC, PROVIDING THAT THE PAYMENTS SHALL BE EXEMPT
FROM TAXATION AND SHALL NOT BE LIABLE TO PROCESS 'EITHER BEFORE OR
AFTER RECEIPT BY THE BENEFICIARY.'  THERE WAS ADDED THE QUALIFICATION
THAT THE EXEMPTION SHOULD NOT EXTEND 'TO ANY PROPERTY PURCHASED IN PART
OR WHOLLY OUT OF SUCH PAYMENTS.'  THIS MORE DETAILED PROVISION WAS
SUBSTITUTED FOR THAT OF THE EARLIER ACT AND WAS EXPRESSLY MADE
APPLICABLE TO PAYMENTS THERETOFORE MADE.  WE THINK IT CLEAR THAT THE
PROVISION OF THE LATER ACT WAS INTENDED TO CLARIFY THE FORMER RATHER
THAN TO CHANGE ITS IMPORT AND IT WAS WITH THAT PURPOSE THAT IT WAS MADE
RETROACTIVE.  ... THE PROVISION OF THE ACT OF 1935 THAT THE EXEMPTION
SHOULD NOT APPLY TO PROPERTY PURCHASED OUT OF THE MONEYS RECEIVED FROM
THE GOVERNMENT SHOWS THE INTENT TO DENY EXEMPTION TO INVESTMENTS, AS
WAS RULED IN THE TROTTER CASE." 

THE QUESTIONED JUDGMENT MUST BE AFFIRMED. 
..END :









HONOLULU OIL CORP. V. HALLIBURTON, 306 U.S. 550 


NO. 466.  ARGUED MARCH 3, 6, 1939.  - DECIDED APRIL 17, 1939.  - 98 F.2D
436, REVERSED IN PART - AFFIRMED IN PART. 


CLAIMS 8 TO 19 OF SIMMONS' PATENT NO. 1,930,987(CLAIMS 8 AND 18 BEING
METHOD CLAIMS, AND THE OTHERS APPARATUS CLAIMS), FOR A METHOD AND
APPARATUS FOR TESTING PRODUCTIVITY OF FORMATIONS ENCOUNTERED IN
DRILLING OIL AND OTHER DEEP WELLS BY THE ROTARY METHOD, HELD INVALID
FOR WANT OF INVENTION.  PP. 559, 562. 

HONOLULU OIL CORP. ET AL. V. HALLIBURTON ET AL.* 

*TOGETHER WITH NO. 479, HALLIBURTON ET AL. V. HONOLULU OIL CORP. ET
AL., ALSO ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
NINTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

WRITS OF CERTIORARI ISSUED ON CROSS-PETITIONS, 305 U.S. 591, TO
REVIEW A DECREE WHICH, REVERSING IN PART A DECREE OF THE DISTRICT
COURT, 18 F.SUPP.  58, HELD CERTAIN APPARATUS CLAIMS OF A PATENT
INVALID AND CERTAIN METHOD CLAIMS VALID AND INFRINGED. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THIS SUIT PRESENTS QUESTIONS OF VALIDITY AND INFRINGEMENT OF PATENT
NO. 1,930,987 APPLIED FOR FEBRUARY 10, 1926 BY SIMMONS AND, AFTER
ASSIGNMENT, ISSUED OCTOBER 17, 1933, TO HALLIBURTON.  IT IS FOR A
METHOD AND APPARATUS FOR TESTING PRODUCTIVITY OF FORMATIONS ENCOUNTERED
IN OIL AND OTHER DEEP WELLS DRILLED BY THE ROTARY METHOD. 

THE WRITS WERE GRANTED, ON PETITION OF DEFENDANTS HONOLULU OIL
CORPORATION, LTD. ET AL. AND CROSS-PETITION OF PLAINTIFFS HALLIBURTON,
ET AL., TO REVIEW A DECREE  FN1  OF THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT HOLDING THAT THE METHOD CLAIMS ARE VALID AND
INFRINGED AND TO THAT EXTENT REVERSING A DECREE  FN2  OF THE DISTRICT
COURT OF SOUTHERN CALIFORNIA HOLDING THAT THE METHOD AND APPARATUS
CLAIMS ARE INVALID. 

THERE WAS AN EARLIER SUIT FOR INFRINGEMENT OF THE SAME PATENT BROUGHT
BY THESE PLAINTIFFS IN THE FEDERAL COURT FOR THE EASTERN DISTRICT OF
TEXAS AGAINST OTHER DEFENDANTS.  THAT COURT SUSTAINED THE PATENT AND
FOUND IT INFRINGED.  THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT
REVERSED.  FN3  IT HELD THE METHOD CLAIMS INVALID FOR LACK OF INVENTION
AND THAT, WHILE THE APPARATUS CLAIMS MAY DEFINE A SIMPLIFYING
IMPROVEMENT UPON WHICH A COMBINATION PATENT MIGHT REST, THE APPARATUS
WAS NOT OF SUCH CHARACTER AS TO BE INFRINGED BY THE ACCUSED TOOL OF
DEFENDANTS. 

IN RECENT YEARS ROTARY DRILLING HAS BEEN WIDELY USED IN SINKING DEEP
OIL WELLS.  BORING IS DONE BY ROTATION OF A BIT ATTACHED TO A STEEL
PIPE WHICH WHEN SO USED IS CALLED A "DRILL STEM."  A SMALLER BORE,
CALLED "RAT-HOLE," SOMETIMES PRECEDES, AND IS REAMED OUT TO OBTAIN, THE
FULL SIZE HOLE.  TO AID OPERATION, DRILLING FLUID (MUD-LADEN WATER) IS
PUMPED INTO THE UPPER END OF THE DRILL STEM AND ESCAPES INTO THE WELL
AT HIGH VELOCITY THROUGH HOLES IN THE BIT.  IT RISES THROUGH THE SPACE
BETWEEN THE PIPE AND THE EARTH WALLS OF THE WELL AND CARRIES TO THE
SURFACE CUTTINGS MADE BY THE BIT.  IT HOLDS BACK AND SEALS THE
PENETRATED FORMATIONS.  HYDROSTATIC PRESSURE OF THE DRILLING FLUID IS
VERY GREAT AND THE FLUID IN A PENETRATED FORMATION WILL NOT FLOW INTO
THE WELL UNLESS IT IS UNDER GREATER PRESSURE.  IT IS OFTEN DESIRABLE TO
SECURE A SAMPLE OF THE FLUID WITHIN A STRATUM IN THE BOTTOM OF THE WELL
WITHOUT REMOVING THE DRILLING FLUID.  THE PATENT IN SUIT IS FOR A
METHOD AND APPARATUS INTENDED TO ACCOMPLISH THAT PURPOSE. 

THE METHOD CLAIMS ARE 8 AND 18.  CLAIM 8 IS AS FOLLOWS:  "A METHOD OF
TESTING THE PRODUCTIVITY OF A FORMATION ENCOUNTERED IN A WELL
CONTAINING DRILLING FLUID, WHICH INCLUDES LOWERING AN EMPTY STRING OF
PIPE INTO THE WELL THROUGH THE DRILLING FLUID TO ADJACENT THE
FORMATION, THE PIPE CARRYING A PACKER  FN4  AND HAVING A VALVED INLET
AT ITS LOWER END WHICH IS CLOSED WHILE THE PIPE IS BEING LOWERED,
SETTING THE PACKER ABOVE THE FORMATION TO SEAL OFF THE DRILLING FLUID
FROM THE FORMATION, OPENING THE VALVED INLET AFTER THE PACKER IS SET TO
PERMIT COGNATE FLUID  FN5  FROM THE FORMATION TO ENTER THE PIPE,
CLOSING THE VALVED INLET AGAINST THE ENTRANCE OF FLUID FROM THE WELL BY
MOVEMENT OF THE PIPE, RAISING THE PIPE SO CLOSED TO REMOVE AN ENTRAPPED
SAMPLE AND THE PACKER FROM THE WELL."  CLAIM 18 IS PRINTED IN THE
MARGIN.  FN6 

THE APPARATUS CLAIMS IN SUIT ARE 9 TO 17 INCLUSIVE AND 19.  CLAIM 15
IS TYPICAL:  "APPARATUS FOR TESTING THE PRODUCTIVITY OF A FORMATION
ENCOUNTERED IN A WELL CONTAINING DRILLING FLUID, COMPRISING A SINGLE
EMPTY STRING OF PIPE TO BE LOWERED INTO THE WELL THROUGH THE DRILLING
FLUID TO ADJACENT THE FORMATION TO BE TESTED, A PACKER LOWERED INTO THE
WELL BY SAID STRING OF PIPE FOR SEALING OFF THE DRILLING FLUID FROM THE
FORMATION TO BE TESTED, SAID PACKER ADAPTED TO BE POSITIVELY PRESSED
AGAINST THE WALLS OF THE FORMATION TO SEAL OFF THE SAME, MEANS AT THE
LOWER END OF SAID STRING OF PIPE TO RECEIVE FLUID FROM SAID FORMATION
INCLUDING AN INLET OPENING INTO SAID PIPE BELOW SAID PACKER AND A VALVE
STRUCTURE FOR CONTROLLING THE INLET, SAID VALVE STRUCTURE HAVING A
RELATIVELY STATIONARY PART CONNECTED TO THE PACKER AND A RELATIVELY
MOVABLE PART CONNECTED TO THE PIPE." 

SUSTAINING THE CLAIMS IN SUIT, THE DISTRICT COURT FOR EASTERN TEXAS
FOUND:  PLAINTIFFS HAVE A LARGE BUSINESS UNDER THE PATENT IN SUIT. 
PRIOR TO THE DISCOVERY THERE WAS NO APPARATUS OR METHOD IN USE FOR
TESTING PRODUCTIVITY OF FORMATIONS IN WELLS CONTAINING DRILLING FLUID
EXCEPT BY PUTTING IN A CASING AND REMOVING THE FLUID.  THIS PATENT
FIRST DISCLOSED TESTING APPARATUS AND METHOD REQUIRING ONLY A SINGLE
STRING OF PIPE. 

IN THIS SUIT THE TRIAL COURT FOUND:  THE FRANKLIN PATENT NO. 263,330,
DATED AUGUST 29, 1882, ANTICIPATES BOTH THE METHOD AND APPARATUS
COVERED BY THE PATENT IN SUIT.  THE USE OF A PACKER IS NECESSARILY
IMPLIED FROM THE LANGUAGE OF THE FRANKLIN PATENT.  WITHOUT ONE, THAT
DEVICE COULD NOT PERFORM THE FUNCTIONS ATTRIBUTED TO IT.  PLAINLY, IT
MAY BE USED AS A TESTER; FOR BY ITS USE THE CONTENTS OF THE PRODUCING
STRATUM, SEALED OFF FROM THE REST OF THE WELL AND UNIMPEDED IN ITS
ENTRY INTO THE RAT-HOLE BY PRESSURE OF THE ROTARY MUD, CAN BE BROUGHT
UNDILUTED TO THE SURFACE BY A MECHANISM ALMOST DUPLICATING THAT SHOWN
BY THE PATENT IN SUIT.  A PACKER TO SEPARATE ONE STRATUM OF THE OIL
WELL FROM ANOTHER IS OLD IN THE ART. 

AND IT ALSO FOUND:  THE COX PATENT NO. 1,347,534, DATED JULY 27,
1920, AND THE EDWARDS PATENT NO. 1,514,585, DATED NOVEMBER 4, 1924,
SUBSTANTIALLY DISCLOSE THE METHOD AND DEVICE CLAIMED IN THE PATENT IN
SUIT.  THE OBJECT OF THESE PATENTS, LIKE THAT OF THE ONE IN SUIT, WAS
TO ASCERTAIN PRODUCTIVITY OF THE STRATUM BEING DRILLED.  THERE WAS NO
ACTUAL COMMERCIAL USE OF THE DEVICE DISCLOSED AND CLAIMED IN THE PATENT
IN SUIT.  IT WAS IMPRACTICAL, DUE TO DIFFICULTY IN OPERATING AT
INCREASED LENGTH.  THE INVENTOR HIMSELF WAS EMPLOYED TO DEVISE
IMPROVEMENTS IN THE VALVE STRUCTURE.  IF VALID AT ALL, THE PATENT MUST
BE RESTRICTED TO ITS PRECISE FORM.  THE METHOD CLAIMS ARE INVALID FOR
WANT OF INVENTION.  IN IMPORTANT RESPECTS, DEFENDANTS' DEVICES DIFFER
IN OPERATION FROM THE DEVICE DISCLOSED AND CLAIMED BY THE PATENT IN
SUIT; THEY ARE NOT INFRINGEMENTS OF IT. 

AND THAT COURT DECREED THAT AS TO ALL CLAIMS IN SUIT, THE PATENT IS
INVALID. 

THE OPINION OF THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT
CONSIDERS THE QUESTIONS OF INVENTION HERE INVOLVED.  IN SUBSTANCE, IT
SAYS: 

METHOD CLAIM 18, TAKEN AS TYPICAL, ASSUMES FAMILIAR APPARATUS AND
CLAIMS A MONOPOLY ON A NEW USE OF THE OLD APPARATUS TO ACHIEVE A RESULT
IN A BETTER WAY.  THAT APPARATUS INCLUDES A SINGLE STRING OF PIPE
LOWERED INTO THE WELL, A PACKER ON THE STRING, AND A VALVE AT THE LOWER
END.  THESE SIMPLE AND WELL-KNOWN ELEMENTS ARE TO BE USED BY LOWERING
THE PIPE INTO THE WELL WITH THE VALVE CLOSED AGAINST THE DRILLING FLUID
UNTIL THE PACKER IS SET, THEN BY OPENING THE VALVE TO ADMIT COGNATE
FLUID BELOW THE PACKER, THEN BY CLOSING THE VALVE SO AS TO PREVENT THE
DRILLING FLUID FROM ENTERING WHEN THE PACKER IS RELEASED AND THE PIPE
DRAWN UP WITH ITS CONTENTS.  NO NOVELTY AND CERTAINLY NO INVENTION CAN
BE CLAIMED FOR THE METHOD. 

PACKERS AND PIPES WITH VALVES IN THEM HAVE LONG BEEN IN USE TO GET
WHAT IS BELOW THE PACKER FREE FROM WHAT IS ABOVE AND WITHOUT REMOVING
WHAT IS ABOVE.  WHETHER A LARGE QUANTITY FROM A FINISHED WELL OR A
SIMPLE SAMPLE FROM AN UNFINISHED WELL DOES NOT MATERIALLY ALTER THE
METHOD.  WATER HAS ALWAYS BEEN ENCOUNTERED IN OIL WELLS; THE DRILLING
FLUID IS ONLY VERY MUDDY WATER VOLUNTARILY PUT AND KEPT IN THE WELL FOR
SPECIAL REASONS.  EXPANSIBLE AND REMOVABLE PACKERS WITH PIPES THROUGH
THEM TO REACH THE OIL, GAS, OR OTHER DESIRED FLUID BENEATH AND RAT-HOLE
PACKERS SET BY THE WEIGHT OF THE PIPE PRESSING THEM DOWN AND REMOVABLE
BY SIMPLY LIFTING THEM ARE SHOWN IN EARLIER PATENTS.  FN7 

THE SIMPLICITY OF THE METHOD IN SUIT ALONG WITH ALL ITS OPERATIONS,
WAS REASONABLY DISCLOSED IN THE OLD PATENT TO FRANKLIN.  THERE IS THE
SINGLE PIPE WITH A PACKER MENTIONED, BUT FUNCTION ESTEEMED SO FAMILIAR
AS TO NEED NO EMPHASIS, CAPABLE OF BEING LOWERED INTO AND WITHDRAWN
FROM A WELL, WITH THE ENTRANCE INTO OR ESCAPE FROM THE PIPE TO BE
CONTROLLED BY A VALVE OPERATED FROM ABOVE WHILE THE PIPE IS LOWERED OR
WITHDRAWN.  THE IMPORTANCE OF FRANKLIN TO THIS METHOD CLAIM IS THAT HE
DESCRIBES THE USE OF A PACKER ON A SINGLE STRING OF PIPE WITH A VALVE
IN THE PIPE IN THE VERY OPERATION OF PUTTING THEM IN AND TAKING THEM
OUT OF THE WELL.  FRANKLIN DISCLOSES A PACKER.  EVIDENTLY ONE MUST BE
USED FOR WITHOUT IT OIL WOULD NOT FLOW THROUGH THE PIPE AS DESIRED AND
THERE WOULD BE NO USE OF THE VALVE TO CONTROL THE FLOW.  THE PACKER IS
NECESSARY TO PREVENT ESCAPE OF GAS AND TO BUILD UP PRESSURE TO MAKE THE
OIL FLOW. 

FRANKLIN DID NOT INTEND TO GET A SAMPLE BY RAISING THE PIPE, BUT
INTENDED TO KEEP FROM GETTING A SAMPLE BY MAKING THE VALVE A LEAKY ONE
THAT WOULD LET THE CONTENTS ESCAPE AS THE PIPE IS RAISED.  HE EXPECTED
TO GET WHAT WAS BELOW BY NATURAL FLOW JUST AS SIMMONS, APPLICANT FOR
THE PATENT IN SUIT, SAYS THAT IS TO BE PREFERRED.  IT WOULD BE NO
INVENTION TO SUBSTITUTE A VALVE THAT WOULD NOT LEAK FOR ONE THAT WAS
INTENDED TO AND DOES LEAK ON WITHDRAWAL.  IT WOULD BE NO INVENTION TO
USE THE FRANKLIN DEVICE TO SAMPLE A WELL INSTEAD OF USING IT TO FLOW
THE WELL.  ESPECIALLY AFTER THE DISCLOSURE OF COX AND EDWARDS IN THE
ART OF TESTING BY SAMPLE TAKEN THROUGH THE DRILL STEM WITH THEIR
SOMEWHAT COMPLICATED DEVICES, RECURRENCE FOR THIS NEW USE TO WHAT IS IN
SUBSTANCE THE SIMPLE APPARATUS OF FRANKLIN OUGHT NOT TO BE THE
FOUNDATION FOR THE BROAD METHOD CLAIMS HERE PUT FORTH.  WHILE PERHAPS
NOT ANTICIPATED, THEY INVOLVE NO SUCH INVENTION AS ENTITLES TO
MONOPOLY. 

THE APPARATUS CLAIMS HAVE A DIFFERENT STATUS.  THEY PROPOSE A NEW
MACHINE TO BETTER ACCOMPLISH THE USEFUL RESULT.  THEY WERE REWRITTEN TO
STATE FOR THE FIRST TIME THAT ONLY A SINGLE STRING OF PIPE IS TO BE
USED.  IN VIEW OF THE OIL WELL ART, THE OMISSION OF THE EDWARDS SECOND
PIPE TO MAINTAIN CIRCULATION INVOLVES NO SUCH INVENTION AS TO GIVE A
MONOPOLY OF ALL SINGLE STRING TESTERS AS IS HERE CLAIMED.  IT MAY BE A
SIMPLIFYING IMPROVEMENT ON WHICH TO REST A COMBINATION PATENT BUT IT IS
NOT A BASIC AND PIONEER INVENTION.  POSITIVE PRESSURE OF THE PACKER
AGAINST THE WELL WALLS, ALSO WRITTEN INTO THE CLAIMS, APPEARS TO REFER
TO THE WEIGHT OF THE PIPE ON THE RAT-HOLE PACKER, BUT THAT IS THE WAY A
RAT-HOLE PACKER HAS ALWAYS WORKED.  THE CLAIMS IN SUIT CAN NOT BE
SUSTAINED IN ALL THEIR BREADTH BUT MUST BE LIMITED TO THE FORM OF THE
APPARATUS DISCLOSED. 

THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT, UPON
CONSIDERATIONS IN SUBSTANCE THE SAME AS THOSE SUGGESTED IN THE OPINION
OF THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT, HELD THAT THE
APPARATUS CLAIMS OF THE PATENT IN SUIT WERE ANTICIPATED BY THE PATENT
TO FRANKLIN.  BUT, HOLDING THAT INVALIDITY OF APPARATUS CLAIMS DOES NOT
NEGATIVE DISCOVERY OF METHOD OR PROCESS, THAT COURT IN SUBSTANCE SAID: 

THE FRANKLIN PATENT DIRECTS THE PIPE TO BE LOWERED INTO THE WELL AND
THE VALVE TO BE OPERATED BY MOVEMENT OF THE PIPE SO AS TO CONTROL THE
FLOW OF OIL.  IT TEACHES THAT THE TUBE CAN BE KEPT EMPTY BY CLOSING THE
VALVE WHILE IT IS BEING LOWERED AND THAT IT SHOULD BE CLOSED PRIOR TO
ITS REMOVAL.  THE DEVICE IS TO BE USED IN A FLOWING WELL WHICH, OF
COURSE, CONTAINS NO DRILLING FLUID.  AT THE TIME OF THAT PATENT THE
ROTARY METHOD OF DRILLING WAS UNKNOWN.  ITS PURPOSES WERE TO PROVIDE A
METHOD OF KEEPING THE TUBING CLOSED WHILE BEING LOWERED INTO OR REMOVED
FROM THE WELL AND MEANS OF TEMPORARILY CLOSING THE TUBING TO ALLOW THE
GAS IN THE WELL TO OBTAIN SUFFICIENT HEAD SO THAT THE WELL WOULD FLOW. 
THERE IS DISCLOSED NO USE FOR TAKING ENTRAPPED SAMPLES FROM UNFINISHED
WELLS CONTAINING DRILLING FLUID.  THERE IS NO SUGGESTION OF THIS LAST
STEP OF THE PATENTED PROCESS; THE DEVICE WAS EVIDENTLY INTENDED TO BE
PERMANENTLY ATTACHED TO THE TUBING OF THE WELL. 

SIMMONS, APPLICANT FOR THE PATENT IN SUIT, FACED THE PROBLEM OF
PROVIDING A METHOD OF TESTING AN OIL WELL WITHOUT REMOVING HYDROSTATIC
PRESSURE NECESSARY FOR SUPPORT OF THE FORMATION IN QUESTION.  HE MET IT
BY A METHOD OPERATING SO QUICKLY THAT THE SUSPENSION OF THE CIRCULATION
OF DRILLING FLUID WAS NOT SUBSTANTIALLY GREATER THAN THAT FREQUENTLY
NECESSARY IN DRILLING OPERATIONS.  FRANKLIN NEITHER CONSIDERED NOR
SOLVED THIS PROBLEM. 

THE SIMMONS DISCOVERY CONSTITUTED INVENTION.  IT DISCLOSED WHAT HAD
NOT BEEN THOUGHT POSSIBLE IN THE ART, THAT IS, THAT SUCH A DEVICE COULD
BE SET IN A WELL CONTAINING DRILLING FLUID NOT IN CIRCULATION LONG
ENOUGH TO MAKE THE TEST; IT SUBSTITUTED A MUCH BETTER PROCESS THAN HAD
BEEN IN USE.  THE DISCOVERY WAS THAT A WELL COULD BE SAFELY TESTED BY
LOWERING A SINGLE STRING OF PIPE EQUIPPED WITH A VALVE PACKER AND
STRAINER AND THAT IT WAS NOT NECESSARY TO SET THE CASING PERMANENTLY
AND BAIL OUT THE DRILLING FLUID; OR, IF A TEST WERE ATTEMPTED WITHOUT
PERMANENTLY SETTING THE CASING, IT WAS NOT NECESSARY TO PROVIDE AN
EXTRA STRING OF PIPE FOR CIRCULATION OF THE DRILLING FLUID.    1.
PLAINTIFFS, INSISTING THAT THE APPARATUS CLAIMS ARE NOT INVALID FOR
LACK OF INVENTION, EMPHASIZE THE FACT THAT THE FRANKLIN APPARATUS WAS
INTENDED TO BE USED TO GOVERN FLOW OF A FINISHED WELL AND NOT FOR
TESTING PRODUCTIVITY OF FORMATIONS ENCOUNTERED IN DRILLING; THEY
MAINTAIN THAT IT IS NOT ADAPTED TO THE LAST MENTIONED USE WITHOUT
SIGNIFICANT CHANGES AND THEY SUGGEST THAT EVEN A VERY SLIGHT CHANGE IS
ENOUGH TO GIVE PATENTABILITY TO THE CHANGED APPARATUS IF THE CHANGE IS
FOREIGN TO THE PURPOSES OF THE FRANKLIN APPARATUS AND DICTATED BY THOSE
OF THE APPARATUS IN SUIT.  THEY SAY THAT THE ESSENTIAL FEATURES OF THE
LATTER, NOT FOUND IN THE FRANKLIN PATENT, ARE A PACKER SO RELATED TO
THE INLET THAT IT MAY SEAL OFF THE FORMATION TO BE TESTED FROM THE
HYDROSTATIC PRESSURE OF THE MUD-LADEN FLUID STANDING IN THE WELL DURING
THE TESTING OPERATION, A VALVE SO POSITIONED WITH RESPECT TO THE PACKER
INLET THAT WHEN CLOSED IT WILL ENTRAP THE ENTIRE FLOW OF THE COGNATE
FLUID TO RESULT FROM NATURAL PRESSURE IN THE FORMATION WHEN RELIEVED
FROM PRESSURE OF THE DRILLING FLUID, AND SO CONSTRUCTED THAT IT WILL
HOLD AND BRING TO THE SURFACE THE ENTRAPPED SAMPLE UNCONTAMINATED AND
UNDIMINISHED. 

THE SPECIFICATION OF FRANKLIN'S PATENT STATES THAT HIS INVENTION
CONSISTS IN PROVIDING A DEVICE WHICH CAN BE CONNECTED WITH THE TUBING
OF THE WELL ABOVE A "PACKER."  ON AMPLE EVIDENCE, THE TRIAL AND
APPELLATE COURTS FOUND THAT PACKERS TO SEPARATE THE PRODUCING STRATA
FROM THE OTHERS WERE OLD IN THE ART, AND THAT THE USE OF A PACKER,
SUBSTANTIALLY AS THE SAME EXISTS TODAY, IS NECESSARILY IMPLIED FROM THE
LANGUAGE OF THE FRANKLIN PATENT.  DETAILED DESCRIPTION BY FRANKLIN WAS
UNNECESSARY.  LOOM CO. V. HIGGINS, 105 U.S. 580, 586. 

FRANKLIN'S SPECIFICATION STATES THAT THE DEVICE CONTAINING THE VALVE
SHOULD BE "PREFERABLY  ... ABOVE THE PACKER" AND THAT "IT MAY BE PLACED
DEEP IN THE WELL AND THEREBY OBTAIN CONSIDERABLE ADVANTAGE."  THIS
INDICATES A VALVE JUST ABOVE THE PACKER AS IS TRUE WITH RESPECT TO THE
PATENT IN SUIT.  BUT EVEN ASSUMING THE CONTRARY, IN VIEW OF PRIOR ART
AS DISCLOSED BY THE COX AND EDWARDS PATENTS, THE LOCATION OF THE VALVE
AS INDICATED BY THE PATENT IN SUIT IS MERE MECHANICAL CONTRIVANCE AND
NOT INVENTION.  HOLLISTER V. BENEDICT & BURNHAM MFG. CO., 113 U.S. 59,
73. 

IT IS ASSUMED, AS CLAIMED BY PLAINTIFFS, THAT THE VALVE OF THE
FRANKLIN DEVICE WAS MADE SO THAT IT WOULD LET THE CONTENTS OF THE PIPE
ESCAPE WHILE IT WAS BEING TAKEN OUT OF THE WELL.  BUT BY MERE
SUBSTITUTION OF A TIGHT VALVE FOR A LEAKY ONE THE DEVICE WOULD BE MADE
TO HOLD AND BRING UP SAMPLES FROM THE FORMATION BELOW THE PACKER.  THE
DIFFERENCE BETWEEN THE FRANKLIN VALVE, LEAKING WHILE BEING DRAWN FROM
THE WELL, AND THAT OF THE PATENT IN SUIT, PURPOSELY MADE TO CLOSE
TIGHTLY, IS NOT AN ESSENTIAL OR PATENTABLE ELEMENT. 

IN WELLS WHERE THERE EXISTS NATURAL PRESSURE IN THE FORMATION BELOW
THE PACKER SUFFICIENT TO FORCE THE FLUID TO THE SURFACE, EITHER DEVICE,
THE FRANKLIN OR THE ONE IN SUIT, MAY BE USED TO CONTROL FLOW OF THE
WELL AND SO DISCLOSE THE PRODUCTIVITY OF THAT STRATUM.  IT IS EQUALLY
PLAIN THAT, IN THE ABSENCE OF ADEQUATE PRESSURE TO CARRY TO THE
SURFACE, THE FRANKLIN DEVICE WITH A VALVE EFFECTIVELY CLOSED WOULD, IF
OPERATED IN ACCORDANCE WITH THE METHOD CLAIMED IN THE PATENT IN SUIT,
SIMILARLY RECEIVE, HOLD, AND BRING TO THE SURFACE SAMPLES FROM THE
FORMATION. 

THE APPARATUS CLAIMS ARE INVALID. 

2.  AS USED IN THE STATUTE,  FN8  "USEFUL ART" INCLUDES METHOD WHICH
IN THIS CASE IS USED INTERCHANGEABLY WITH PROCESS; "MACHINE" INCLUDES
APPARATUS.  FN9  HAVING HELD THE APPARATUS NOT NEW, WE COME TO THE
QUESTION WHETHER CLAIMS 8 AND 18 COVER ANY NEW METHOD OR PROCESS.  FN10
THESE CLAIMS RELATE TO "A METHOD OF TESTING."  THE CLAIMS RELATING TO
THE DEVICE CALL IT AN "APPARATUS FOR TESTING."  IN THE METHOD CLAIMS
FN11  AND IN SOME RELATING TO APPARATUS,  FN12 THE PHRASES JUST QUOTED
ARE FOLLOWED BY IDENTICAL WORDS:  "THE PRODUCTIVITY OF A FORMATION
ENCOUNTERED IN A WELL CONTAINING DRILLING FLUID."  FN13  THE ELEMENTS
TO BE EMPLOYED IN TAKING THE STEPS CONSTITUTING THE METHOD ARE
ESSENTIALLY THE SAME AS THOSE CONSTITUTING THE APPARATUS.  THE PROCESS
CONSISTS OF "LOWERING AN EMPTY STRING OF PIPE," "SETTING THE PACKER,"
"OPENING THE VALVED INLET," "CLOSING THE VALVED INLET," "RAISING THE
PIPE SO CLOSED TO REMOVE AN ENTRAPPED SAMPLE AND THE PACKER FROM THE
WELL."  THE RESULT TO BE ACHIEVED BY THE METHOD CLAIMED TO BE NEW IS
PRECISELY THE SAME AS THAT FOR THE ATTAINMENT OF WHICH THE APPARATUS
FOUND TO BE OLD WAS CONTRIVED. 

AS ALREADY SHOWN THE FRANKLIN APPARATUS SERVED TO BRING OUT
UNCONTAMINATED THE OIL YIELDED BY THE STRATUM BELOW THE PACKER.  THE
METHOD PRACTICED BY ITS USE INCLUDES IN THE SAME ORDER ALL THE STEPS,
EXCEPT THE LAST ONE, THAT CONSTITUTE THE PROCESS IN QUESTION.  THAT
STEP IS THE RAISING OF THE PIPE CONTAINING THE ENTRAPPED SAMPLE.  AS
THE FRANKLIN DEVICE WAS TO CONTROL FLOW AND NOT TO TEST PRODUCTIVITY OF
STRATA REACHED BEFORE COMPLETION OF WELLS, THE FINAL MOVEMENT TO BE
TAKEN IN THE PROCESS UNDER CONSIDERATION WAS NOT INVOLVED OR
DESCRIBED.  BUT THAT MOVEMENT IS SUBSTANTIALLY DISCLOSED BY THE COX AND
EDWARDS PATENTS.  NO DISCUSSION, IN ADDITION TO THE CONVINCING
EXPOSITION BY THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT, IS
REQUIRED TO SHOW THAT THE METHOD CLAIMED IN SUIT WAS CLEARLY INDICATED
IN THE PRIOR ART. IT CANNOT REASONABLY BE HELD THAT ANYTHING MORE THAN
MECHANICAL SKILL OF MEN FAMILIAR WITH KNOWN METHODS OF OBTAINING OIL
FROM FORMATIONS BELOW PACKERS WOULD BE REQUIRED TO SUGGEST THE RAISING
OF THE PIPE CONTAINING FLUID ENTRAPPED AND HELD BY EFFECTIVE CLOSING OF
THE VALVE. 

THE METHOD CLAIMS ARE INVALID. 

THE PART OF THE DECREE OF THE CIRCUIT COURT OF APPEALS BROUGHT UP BY
DEFENDANTS' PETITION IS REVERSED.  THE PART BROUGHT UP BY PLAINTIFFS'
PETITION IS AFFIRMED.  THE DECREE OF THE DISTRICT COURT IS AFFIRMED. 
NO. 466, REVERSED.  NO. 479, AFFIRMED. 

FN1  98 F.2D 436. 

FN2  18 F.SUPP.  58. 

FN3  88 F.2D 270. 

FN4  WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2ND ED., 1935:  "PACKER
...  A DEVICE TO PACK THE SPACE BETWEEN THE WALL OF A WELL AND THE PIPE
OR BETWEEN TWO STRINGS OF PIPE IN A WELL." 

FN5  THAT IS, OIL, GAS, WATER, OR OTHER FLUID ENCOUNTERED IN
FORMATIONS PENETRATED BY THE BIT. 

FN6  "18.  A METHOD OF TESTING THE PRODUCTIVITY OF A FORMATION
ENCOUNTERED IN A WELL CONTAINING DRILLING FLUID INVOLVING THE INSERTION
OF ONLY A SINGLE STRING OF PIPE INTO THE WELL TO MAKE A TEST, WHICH
INCLUDES LOWERING A TEST STRING INTO THE WELL THROUGH THE DRILLING
FLUID WITH A PACKER CARRIED BY THE STRING AND A VALVE INLET AT THE
LOWED END OF THE STRING CLOSED AGAINST THE ENTRANCE OF FLUID FROM THE
WELL, SETTING THE PACKER ABOVE THE FORMATION AND OPENING THE VALVE TO
PERMIT COGNATE FLUID FROM THE FORMATION TO ENTER THE INLET, CLOSING THE
VALVE TO PREVENT THE SUBSEQUENT ENTRANCE OF FLUID FROM THE WELL THROUGH
THE INLET AND RELEASING THE PACKER, AND RAISING THE TEST STRING WITH
THE INLET CLOSED AGAINST ENTRANCE OF FLUID FROM THE WELL TO REMOVE AN
ENTRAPPED SAMPLE." 

FN7  THE OPINION REFERS TO STEWART, NO. 171,589, DECEMBER 28, 1875;
STEWART, NO. 230,080, JULY 13, 1880; KOCH, NO. 208,610, OCTOBER 1,
1878; BLOOM, NO. 785,933, MARCH 28, 1905; MCCREADY, NO. 1,522,197,
JANUARY 6, 1925; AND COOPER, NO. 1,000,583, AUGUST 15, 1911. 

FN8  35 U.S.C. SEC. 31. 

FN9  CORNING V. BURDEN, 15 HOW.  252, 267. 

FN10  SEE RISDON LOCOMOTIVE WORKS V. MEDART, 158 U.S. 68, 77, 79. 
EXPANDED METAL CO. V. BRADFORD, 214 U.S. 366, 383.  TILGHMAN V.
PROCTOR, 102 U.S. 707. 

FN11  CLAIMS 8 AND 18. 

FN12  CLAIMS 13, 14, 15, 16, 17, 19. 

FN13  TO SHOW IDENTICAL SUBJECT MATTER IN THE TWO SETS OF CLAIMS,
DEFENDANTS PRESENT AN ANALYSIS OF METHOD CLAIM 18 AND APPARATUS CLAIM
19 IN PARALLEL ARRANGEMENT AS FOLLOWS:

   18.                                 19. 

A METHOD OF TESTING THE             AN APPARATUS FOR TESTING THE 

PRODUCTIVITY OF A FORMATION         PRODUCTIVITY OF A FORMATION IN A 

ENCOUNTERED IN A WELL CONTAINING    WELL CONTAINING DRILLING FLUID, 

DRILLING FLUID INVOLVING            COMPRISING 

THE INSERTION OF ONLY A SINGLE      A STRING OF PIPE 

STRING OF PIPE INTO THE WELL TO 

MAKE A TEST, 

WHICH INCLUDES LOWERING A TEST      (A STRING OF PIPE) TO BE LOWERED 

STRING INTO THE WELL THROUGH THE    INTO THE WELL THROUGH THE
DRILLING 

DRILLING FLUID                      FLUID TO ADJACENT THE FORMATION

                                  ...  AND TO BE RAISED OUT OF THE

                                  WELL TO REMOVE THE ENTRAPPED

SAMPLE,  ........................... 

WITH A PACKER CARRIED BY THE        A PACKER CARRIED BY THE PIPE AS 

STRING AND A VALVE INLET AT THE     THE PIPE IS LOWERED INTO THE
WELL 

LOWER END OF THE STRING CLOSED      ...  AN INLET TO THE PIPE 

AGAINST THE ENTRANCE OF FLUID FROM  COMMUNICATING WITH THE WELL
BELOW 

THE WELL,                           THE POINT AT WHICH THE PACKER

                                  SEALS OFF THE WELL, 

SETTING THE PACKER ABOVE THE        (THE PACKER IS) ADAPTED TO BE 

FORMATION  .........................SEATED BY MANIPULATION OF THE

PIPE TO SEAL OFF THE WELL ABOVE THE

            FORMATION, SAID PACKER ADAPTED

                   TO BE POSITIVELY PRESSED AGAINST

                            THE WALLS OF THE FORMATION TO SEAL

                                  OFF THE SAME, 

CLOSING THE VALVE TO PREVENT THE    AND MEANS FOR CONTROLLING THE 

SUBSEQUENT ENTRANCE OF FLUID FROM   INLET TO PERMIT FLUID FROM THE 

THE WELL THROUGH THE INLET AND      FORMATION TO ENTER THE PIPE
WHILE 

RELEASING THE PACKER, AND RAISING   THE PACKER IS SET AND TO PREVENT 

THE TEST STRING WITH THE INLET      FLUID FROM ENTERING THE PIPE
AFTER 

CLOSED AGAINST ENTRANCE OF FLUID    THE PACKER IS RELEASED AND THE 

FROM THE WELL TO REMOVE AN          PIPE IS BEING RAISED OUT OF THE 

ENTRAPPED SAMPLE.                   WELL (TO REMOVE THE ENTRAPPED

                                  SAMPLE). 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















ATLAS INS. CO. V. SOUTHERN, INC., 306 U.S. 563 


NO. 598.  SUBMITTED MARCH 29, 1939.  - DECIDED APRIL 17, 1939. 


1.  IN OKLAHOMA, AN INSURER MAY SET UP FRAUD IN THE PROCUREMENT OF A
POLICY AS A DEFENSE TO AN ACTION AT LAW UPON IT, OR MAY INTERPOSE A
CROSS-COMPLAINT IN THAT ACTION FOR CANCELLATION OF THE POLICY.  P.
567. 

2.  AN ACTION IN A STATE COURT OF OKLAHOMA BY A DELAWARE CORPORATION
AGAINST AN OKLAHOMA INSURANCE COMPANY UPON A POLICY OF INSURANCE IS NOT
REMOVABLE TO THE FEDERAL COURT, SINCE THE DEFENDANT IS NOT A
NONRESIDENT OF OKLAHOMA WITHIN JUDICIAL CODE, SEC. 28.  P. 567. 

3.  THE "JURISDICTION" OF SUITS IN EQUITY, CONFERRED ON THE FEDERAL
COURTS BY JUDICIAL CODE, SEC. 24(1), IS AN AUTHORITY TO ADMINISTER IN
EQUITY SUITS THE PRINCIPLES OF THE SYSTEM OF JUDICIAL REMEDIES WHICH
HAD BEEN DEVISED AND WAS BEING ADMINISTERED BY THE ENGLISH COURT OF
CHANCERY AT THE TIME OF THE SEPARATION OF THE TWO COUNTRIES.  P. 568. 

4.  THE PROVISION OF JUDICIAL CODE, SEC. 267, THAT SUITS IN EQUITY
SHALL NOT BE MAINTAINED IN THE FEDERAL COURTS IN ANY CASE WHERE A
"PLAIN, ADEQUATE AND COMPLETE REMEDY MAY BE HAD AT LAW," WHICH
CONTINUES, IN SUBSTANCE, SEC. 16 OF THE JUDICIARY ACT OF 1789, IS BUT A
DECLARATION OF THE EQUITY RULE ESTABLISHED LONG BEFORE THE ENACTMENT OF
THE JUDICIARY ACT, AND IT SERVES BY EMPHASIS OF THE RULE TO PROTECT THE
STATES FROM THE ENCROACHMENTS WHICH WOULD RESULT FROM THE EXERCISE OF
EQUITY POWERS BY FEDERAL COURTS FAILING TO OBSERVE IT.  P. 569. 

5.  THE ACCEPTED TEST OF LEGAL ADEQUACY WHICH THE SECTION PRESCRIBES
IS THE LEGAL REMEDY WHICH THE FEDERAL, RATHER THAN STATE, COURTS
AFFORD.  P. 569. 

6.  THOUGH THE FEDERAL COURT HAVE JURISDICTION, IN THE SENSE OF POWER
TO HEAR AND DECIDE THE CAUSE, AND THERE IS AN ABSENCE OF LEGAL REMEDY,
THE RIGHT TO EQUITABLE RELIEF NEVERTHELESS DEPENDS UPON ALLEGATION AND
PROOF OF A CAUSE OF ACTION IN EQUITY.  P. 569. 

7.  THE FACT THAT AN "INCONTESTABLE" CLAUSE IN A POLICY WOULD SOON
COME INTO OPERATION IS NOT NECESSARILY GROUND FOR RESORT TO EQUITY IN
THE FEDERAL COURT, WHEN A SUIT AT LAW IS PENDING IN A STATE COURT
WHEREIN THE GROUND FOR EQUITABLE RELIEF CAN BE SET UP AS A DEFENSE. 

THE FEDERAL COURT SHOULD PROCEED ONLY SO FAR AS IS NECESSARY TO
PROTECT THE SUITOR FROM LOSS OF HIS DEFENSE AT LAW.  P. 572. 

8.  QUESTIONS CERTIFIED BY THE CIRCUIT COURT OF APPEALS TO THIS COURT
IN A SUIT BY AN INSURANCE COMPANY FOR CANCELLATION OF POLICIES OF
INSURANCE ON THE GROUND OF FRAUD IN PROCUREMENT, SEEKING INSTRUCTIONS
AS TO THE RIGHT OF THE INSURER TO EQUITABLE RELIEF IN VIEW OF THE
PENDENCY IN THE STATE COURT OF AN ACTION AT LAW PREVIOUSLY BROUGHT ON
THE POLICIES BY THE BENEFICIARY, HELD NOT APPROPRIATELY FRAMED FOR
PROPER ANSWER, BECAUSE THE FACTS CERTIFIED FAIL TO SHOW WHETHER THE
INSURANCE COMPANY IS ENTITLED TO THE RELIEF SOUGHT.  P. 571. 

THE QUESTIONS SUGGESTED MAY BE PROPERLY ANSWERED ONLY BY REFRAMING
THEM OR GIVING QUALIFIED ANSWERS TO THEM.  THIS THE COURT IS NOT
REQUIRED TO DO, AND CAN NOT PROPERLY DO WITHOUT RECOURSE TO THE RECORD,
WHICH IN THIS CASE IS NOT HERE. 

9.  IT IS INAPPROPRIATE ON CERTIFICATE TO ANSWER QUESTIONS WHICH MAY
BE AFFECTED BY UNSTATED MATTER LURKING IN THE RECORD, OR QUESTIONS
WHICH ADMIT OF ONE ANSWER UNDER ONE SET OF CIRCUMSTANCES AND A
DIFFERENT ANSWER UNDER ANOTHER, NEITHER OF WHICH IS INCONSISTENT WITH
THE CERTIFICATE.  P. 573. 

ATLAS LIFE INSURANCE CO. V. W.I. SOUTHERN, INC. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS UPON AN APPEAL FROM A
DECREE DISMISSING A BILL IN EQUITY FOR CANCELLATION OF POLICIES OF
INSURANCE. 

THE FIRST QUESTION CERTIFIED SHOULD BE ANSWERED IN THE NEGATIVE; THE
SECOND IN THE AFFIRMATIVE.  ARROWSMITH V. GLEASON, 129 U.S. 86; SMYTH
V. AMES, 169 U.S. 466; CHICAGO, B. & Q. RY. CO. V. OSBORNE, 265 U.S.
14; RISTY V. CHICAGO, ETC., RY. CO., 270 U.S. 378; HENRIETTA MILLS V.
RUTHERFORD COUNTY, 281 U.S. 121; DI GIOVANNI V. CAMDEN F. INSURANCE
ASSN., 296 U.S. 64; PETROLEUM EXPLORATION, INC. V. PUBLIC SERVICE
COMM'N, 304 U.S. 209. 

EVEN WHERE AN ACTION BY THE INSURED IS PENDING IN THE FEDERAL COURT,
TO WHICH THE INSURANCE COMPANY MAY FILE AN ANSWER SETTING UP THE FRAUD
AS A DEFENSE, THE FEDERAL COURT MAY HAVE EQUITY JURISDICTION OF A SUIT
TO CANCEL THE POLICIES BECAUSE OF THE FRAUD.  AMERICAN LIFE INSURANCE
CO. V. STEWART, 300 U.S. 203; RUHLIN V. NEW YORK LIFE INSURANCE CO., 93
F.2D 416; STEWART V. AMERICAN LIFE INSURANCE CO., 89 F.2D 743; DAVIS V.
WAKELEE, 156 U.S. 680, 688. 

THE THIRD QUESTION SHOULD BE ANSWERED IN THE AFFIRMATIVE. 

THE BILL IN EQUITY WAS FILED ONLY FIVE DAYS BEFORE THE EXPIRATION OF
THE TWO-YEAR PERIOD WITHIN WHICH THE INSURANCE COMPANY HAD TO INITIATE
ITS CONTEST.  IN THE CASE OF AMERICAN INSURANCE CO. V. STEWART, SUPRA,
THE SUITS WERE FILED "ONE YEAR, FIVE MONTHS AND TWENTY DAYS" PRIOR TO
THE EXPIRATION OF THE PERIOD, AND THIS FACT WAS EMPHASIZED BY THE
CIRCUIT COURT OF APPEALS OF THE TENTH CIRCUIT IN THE TWO OPINIONS
PRECEDING THE DECISION IN THIS COURT.  SEE STEWART V. AMERICAN LIFE
INSURANCE CO., 80 F.2D 600, 601; 85 F.2D 791, 792. 

THE SECTION OF THE FEDERAL STATUTES WHICH PROHIBITS THE MAINTENANCE
OF A SUIT IN EQUITY WHERE AN ADEQUATE REMEDY AT LAW IS AVAILABLE SHOULD
NOT BE HELD TO MEAN THAT ONE MAY NOT MAINTAIN A SUIT IN EQUITY IF HE
HAS AN OPPORTUNITY TO INTERPOSE A DEFENSE AT LAW.  PHOENIX MUTUAL LIFE
INSURANCE CO. V. BAILEY, 80 U.S. 616; AND CABLE V. UNITED STATES
INSURANCE CO., 191 U.S. 287, DISTINGUISHED.  SEE HARNISCHFAGER SALES
CORP. V. NATIONAL LIFE INSURANCE CO., 72 F.2D 921. 

THE INSURED DIED JUST EIGHTEEN DAYS BEFORE THE PERIOD OF
CONTESTABILITY EXPIRED.  THIS RIGHT OF THE INSURANCE COMPANY TO INVOKE
THE EQUITABLE JURISDICTION OF THE FEDERAL COURT MEANS NOTHING TO IT IF
THE ADVERSARY, AT HIS OWN WILL, MAY DETERMINE WHETHER THAT COURT WILL
PROCEED TO HEAR THE COMPLAINT.  CF. SOUTHERN PACIFIC CO. V. CORBETT, 20
F.SUPP.  940; ARROWSMITH V. GLEASON, SUPRA; PAYNE V. HOOK, 74 U.S.
425.  THE FEDERAL COURT WAS BOUND TO TAKE THE CASE; IT COULD NOT
ABDICATE ITS AUTHORITY OR DUTY IN FAVOR OF THE STATE JURISDICTION. 
KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE COURT OF APPEALS FOR THE TENTH CIRCUIT HAS CERTIFIED
TO US QUESTIONS OF LAW CONCERNING WHICH IT ASKS INSTRUCTIONS FOR THE
PROPER DECISION OF THE CAUSE PENDING IN THAT COURT.  JUDICIAL CODE,
SEC. 239; 28 U.S.C. SEC. 346. 

THE CERTIFICATE STATES THAT ON MARCH 13, 1936, ATLAS LIFE INSURANCE
COMPANY, AN OKLAHOMA CORPORATION, PLAINTIFF BELOW, ISSUED, ON A SINGLE
APPLICATION, THREE POLICIES OF INSURANCE ON THE LIFE OF ONE SOUTHERN,
IN AMOUNTS OF $10,000, $15,000 AND $25,000 RESPECTIVELY, EACH NAMING AS
BENEFICIARY W.I. SOUTHERN, INC., A DELAWARE CORPORATION.  ALL OF THE
POLICIES CONTAINED AN INCONTESTABLE CLAUSE READING: 

"THIS POLICY WILL BE INCONTESTABLE AFTER TWO YEARS FROM DATE OF ISSUE
EXCEPT FOR THE NONPAYMENT OF PREMIUM AND EXCEPT AS TO PROVISIONS AND
CONDITIONS RELATING TO DISABILITY BENEFITS AND THOSE GRANTING
ADDITIONAL INSURANCE SPECIFICALLY AGAINST DEATH BY ACCIDENT, IF ANY",
AND A CLAUSE RELATING TO STATEMENTS OF THE INSURED IN HIS APPLICATION
AS FOLLOWS: 

"ALL STATEMENTS MADE BY THE INSURED SHALL, IN THE ABSENCE OF FRAUD,
BE DEEMED REPRESENTATIONS AND NOT WARRANTIES, AND NO SUCH STATEMENT
SHALL VOID THIS POLICY UNLESS IT BE CONTAINED IN THE WRITTEN
APPLICATION AND A COPY OF THE APPLICATION IS ENDORSED UPON OR ATTACHED
TO THIS POLICY WHEN ISSUED." 

THE INSURED DIED FEBRUARY 23, 1938, AND ON MARCH 7, 1938, THE
CORPORATE BENEFICIARY BEGAN SUIT AGAINST THE INSURANCE COMPANY IN THE
OKLAHOMA STATE DISTRICT COURT.  ON THE FOLLOWING DAY THE INSURANCE
COMPANY BROUGHT A SUIT IN EQUITY AGAINST THE BENEFICIARY IN THE FEDERAL
DISTRICT COURT FOR NORTHERN OKLAHOMA FOR CANCELLATION OF THE POLICIES,
ON THE GROUND THAT IN HIS APPLICATION THE INSURED HAD INTENTIONALLY AND
FRAUDULENTLY GIVEN FALSE ANSWERS TO QUESTIONS MATERIAL TO THE RISK. 
THE TRIAL COURT SUSTAINED A MOTION TO DISMISS THE EQUITY SUIT, MADE ON
THE GROUND THAT THE INSURANCE COMPANY HAD AN ADEQUATE REMEDY AT LAW BY
SETTING UP THE ALLEGED FRAUD AS A DEFENSE TO THE ACTION PENDING IN THE
STATE COURT.  23 F.SUPP.  334.  THE INSURANCE COMPANY ELECTING NOT TO
PLEAD FURTHER, A DECREE WAS ENTERED DISMISSING THE BILL, FROM WHICH THE
INSURANCE COMPANY APPEALED TO THE CIRCUIT COURT OF APPEALS. 

UNDER THE OKLAHOMA PRACTICE THE INSURANCE COMPANY CAN SET UP THE
FRAUD AS A DEFENSE TO THE ACTION AT LAW ON THE POLICIES, OR CAN
INTERPOSE A CROSS-COMPLAINT IN THAT ACTION FOR CANCELLATION OF THE
POLICIES.  FARMERS & MERCHANTS BANK V. HOYT, 29 OKLA. 772; 120 P. 264. 
THE ACTION ON THE POLICIES IN THE STATE COURT IS NOT REMOVABLE BY THE
INSURANCE COMPANY, SINCE IT IS NOT A NON-RESIDENT OF OKLAHOMA WITHIN
THE MEANING OF SEC. 28 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 71. 

THE QUESTIONS CERTIFIED ARE AS FOLLOWS: 

"1.  IS THE REMEDY AT LAW AVAILABLE IN THE STATE COURT BY SETTING UP
THE ALLEGED FRAUD AS A DEFENSE TO THE ACTION ON THE POLICIES, SUCH AN
ADEQUATE REMEDY AT LAW AS WILL CONSTITUTE A VALID DEFENSE TO THE SUIT
IN EQUITY FOR CANCELLATION OF THE POLICIES? 

"2.  IN ORDER TO CONSTITUTE A DEFENSE TO A SUIT IN EQUITY TO CANCEL A
POLICY OF LIFE INSURANCE ON THE GROUND OF FRAUD, IS IT ESSENTIAL THAT
THE REMEDY AT LAW BE AVAILABLE TO THE COMPLAINANT IN AN ACTION AT LAW
PENDING IN THE FEDERAL COURT? 

"3.  IS THE PRINCIPLE THAT THE ADEQUATE REMEDY AT LAW WHICH WILL
PRECLUDE A FEDERAL COURT OF EQUITY FROM GRANTING RELIEF MUST BE ONE
AVAILABLE IN THE FEDERAL COURTS, APPLICABLE IN THE INSTANT CASE WHERE
THE RELIEF SOUGHT IS AFFIRMATIVE IN FORM BUT DEFENSIVE IN CHARACTER?" 

THE CIRCUIT COURTS SHOULD HAVE "COGNIZANCE  ...  OF ALL SUITS OF A
CIVIL NATURE AT COMMON LAW OR IN EQUITY" IN CASES APPROPRIATELY BROUGHT
IN THOSE COURTS.  THIS PROVISION IS PERPETUATED IN SEC. 24(1) OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 41(1), WHICH DECLARES THAT THE DISTRICT
COURTS SHALL HAVE JURISDICTION OF SUCH SUITS.  THE "JURISDICTION" THUS
CONFERRED ON THE FEDERAL COURTS TO ENTERTAIN SUITS IN EQUITY IS AN
AUTHORITY TO ADMINISTER IN EQUITY SUITS THE PRINCIPLES OF THE SYSTEM OF
JUDICIAL REMEDIES WHICH HAD BEEN DEVISED AND WAS BEING ADMINISTERED BY
THE ENGLISH COURT OF CHANCERY AT THE TIME OF THE SEPARATION OF THE TWO
COUNTRIES.  PAYNE V. HOOK, 7 WALL.  425, 430; IN RE SAWYER, 124 U.S.
200, 209-210; MATTHEWS V. RODGERS, 284 U.S. 521, 525; GORDON V.
WASHINGTON, 295 U.S. 30, 36.  THIS CLAUSE OF THE STATUTE DOES NOT
DEFINE THE JURISDICTION OF THE DISTRICT COURTS AS FEDERAL COURTS, IN
THE SENSE OF THEIR POWER OR AUTHORITY TO HEAR AND DECIDE, BUT
PRESCRIBES THE BODY OF DOCTRINE WHICH IS TO GUIDE THEIR DECISIONS AND
ENABLE THEM TO DETERMINE WHETHER IN ANY GIVEN INSTANCE A SUIT OF WHICH
A DISTRICT COURT HAS JURISDICTION AS A FEDERAL COURT IS AN APPROPRIATE
ONE FOR THE EXERCISE OF THE EXTRAORDINARY POWERS OF A COURT OF EQUITY. 
SEE MASSACHUSETTS STATE GRANGE V. BENTON, 272 U.S. 525, 528;
PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, 181, AND CASES CITED.  FN1 

WITHOUT MATERIAL CHANGE AS SEC. 267 OF THE JUDICIAL CODE; 28 U.S.C.
SEC. 384, DECLARES THAT SUITS IN EQUITY SHALL NOT BE SUSTAINED IN THE
COURTS OF THE UNITED STATES IN ANY CASE WHERE A "PLAIN, ADEQUATE AND
COMPLETE REMEDY MAY BE HAD AT LAW."  THE COMMAND OF SEC. 267 IS BUT A
DECLARATION OF THE EQUITY RULE ESTABLISHED LONG BEFORE THE ENACTMENT OF
THE JUDICIARY ACT, AND IT SERVES BY EMPHASIS OF THE RULE TO PROTECT THE
STATES FROM THE ENCROACHMENTS WHICH WOULD RESULT FROM THE EXERCISE OF
EQUITY POWERS BY FEDERAL COURTS FAILING TO OBSERVE IT.  MATTHEWS V.
RODGERS, SUPRA, 525; STRATTON V. ST. LOUIS SOUTHWESTERN RY. CO., 284
U.S. 530. 

BY LONG-SETTLED CONSTRUCTION, THE ACCEPTED TEST OF LEGAL ADEQUACY
WHICH THE SECTION PRESCRIBES IS THE LEGAL REMEDY WHICH THE FEDERAL,
RATHER THAN STATE, COURTS AFFORD.  FN2  SMYTH V. AMES, 169 U.S. 466;
RISTY V. CHICAGO, R.I. & P. RY. CO., 270 U.S. 378, 388; DI GIOVANNI V.
CAMDEN FIRE INSURANCE ASSN., 296 U.S. 64; PETROLEUM EXPLORATION, INC.
V. PUBLIC SERVICE COMM'N, 304 U.S. 209, 217.  BUT ALTHOUGH THE ADEQUACY
OF THE LEGAL REMEDY PRECLUDES RESORT TO A FEDERAL COURT OF EQUITY, IT
DOES NOT FOLLOW THAT THE CONVERSE IS TRUE - THAT THE WANT OF A LEGAL
REMEDY IN THE FEDERAL COURTS GIVES THE SUITOR FREE ENTRANCE TO A
FEDERAL COURT OF EQUITY.  ABSENCE OF LEGAL REMEDY DOES NOT DISPENSE
WITH THE NECESSITY OF ALLEGING AND PROVING A CAUSE OF ACTION IN EQUITY
AS A PREREQUISITE TO EQUITABLE RELIEF IN A FEDERAL COURT.  ENELOW V.
NEW YORK LIFE INS. CO., 293 U.S. 379; DI GIOVANNI V. CAMDEN FIRE
INSURANCE ASSN., SUPRA; AMERICAN LIFE INS. CO. V. STEWART, 300 U.S.
203. 

THE INSURANCE COMPANY IN THE CIRCUMSTANCES DISCLOSED BY THE
CERTIFICATE IS WITHOUT REMEDY IN A SUIT AT LAW.  THE FEDERAL COURTS CAN
RENDER NO JUDGMENT AT LAW DIRECTING CANCELLATION OF A CONTRACT FOR
FRAUD IN ITS INCEPTION OR PRESERVING EVIDENCE OF THE FRAUD.  THESE ARE
FORMS OF RELIEF WHICH A COURT OF EQUITY ALONE CAN GIVE.  BUT THE BASIS
OF EQUITABLE RELIEF IS THAT THE CANCELLATION ASKED IS NECESSARY TO
PROTECT THE SUITOR FROM IRREPARABLE INJURY WHEN THERE IS MANIFEST
DANGER THAT HIS DEFENSE AT LAW ON THE POLICY WILL BE LOST OR
PREJUDICED.  ENELOW V. NEW YORK LIFE INS. CO., SUPRA; DI GIOVANNI V.
CAMDEN FIRE INSURANCE, ASSN., SUPRA; AMERICAN LIFE INS. CO. V. STEWART,
SUPRA. 

ORDINARILY WHEN THE DEFENSE OF FRAUD MAY BE INTERPOSED TO AN ACTION
AT LAW ON THE POLICY AND SUCH AN ACTION IS IMMINENT OR PENDING, THERE
IS NO OCCASION FOR EQUITABLE RELIEF AND THE PARTIES WILL BE LEFT TO
THEIR RIGHTS AS DETERMINED IN THE SUIT AT LAW.  IN SUCH A CASE THE BILL
IS DISMISSED WITHOUT PREJUDICE, NOT BECAUSE THERE IS WANT OF
JURISDICTION IN THE FEDERAL COURT, BUT BECAUSE THE PLAINTIFF HAS MADE
NO CASE FOR EQUITABLE RELIEF.  INSURANCE CO. V. BAILEY, 13 WALL.  616;
CABLE V. UNITED STATES LIFE INS. CO., 191 U.S. 288; ENELOW V. NEW YORK
LIFE INS. CO., SUPRA; DI GIOVANNI V. CAMDEN FIRE INSURANCE ASSN.,
SUPRA.  AND SINCE THE ISSUE IS NOT ONE OF JURISDICTION BUT OF THE NEED
AND PROPRIETY OF EQUITABLE RELIEF, THE MERE FACT THAT THE SUIT AT LAW
WHICH IS IMMINENT CAN BE BROUGHT ONLY IN THE STATE COURT, OR THAT IT IS
PENDING THERE, IS IMMATERIAL.  CABLE V. UNITED STATES LIFE INS. CO.,
SUPRA; DI GIOVANNI V. CAMDEN FIRE INSURANCE ASSN., SUPRA; CF. INSURANCE
CO. V. BAILEY, SUPRA.  IT IS NO GROUND FOR EQUITABLE RELIEF THAT THE
SUIT AT LAW IS BROUGHT IN A STATE RATHER THAN A FEDERAL COURT, FOR THE
INSURANCE COMPANY'S DEFENSE MAY BE PROTECTED THERE AS WELL AS IN A
FEDERAL COURT, AND IN THAT CASE THERE IS NO THREAT OF IRREPARABLE
INJURY.  SEE CABLE V. UNITED STATES LIFE INS. CO., SUPRA.  ON
COMPARABLE GROUNDS A FEDERAL COURT MAY WITHHOLD ITS AID WHEN A
PLAINTIFF HAS FAILED TO RESORT TO A STATE ADMINISTRATIVE REMEDY. 
NATURAL GAS PIPE LINE CO. V. SLATTERY, 302 U.S. 300, 310-311.  ONLY
WHEN SPECIAL CIRCUMSTANCES ARE SHOWN WHICH SUBJECT THE INSURER TO THE
HAZARD THAT HIS DEFENSE TO THE SUIT AT LAW, WHETHER IN THE STATE OR
FEDERAL COURT, WILL BE LOST OR PREJUDICED IS THERE OCCASION FOR EQUITY
TO GIVE RELIEF.  AMERICAN LIFE INS. CO. V. STEWART, SUPRA. 

IN THE LIGHT OF WHAT WE HAVE SAID IT IS EVIDENT THAT THE CERTIFIED
QUESTIONS CANNOT BE PROPERLY ANSWERED, BOTH BECAUSE THEY ARE APPARENTLY
FRAMED WITHOUT REFERENCE TO THE REQUIREMENTS FOR THE MAINTENANCE OF A
SUIT IN EQUITY IN THE FEDERAL COURTS INDEPENDENTLY OF SEC. 267 OF THE
JUDICIAL CODE AND ON THE MISTAKEN ASSUMPTION THAT THAT SECTION AFFORDS
THE ONLY TEST OF THE INSURANCE COMPANY'S RIGHT TO PROCEED IN A FEDERAL
COURT OF EQUITY; AND BECAUSE THE CERTIFICATE DOES NOT EXCLUDE THE
POSSIBILITY THAT THERE ARE FACTS, LURKING IN THE RECORD OR WITHIN THE
RANGE OF JUDICIAL NOTICE, WHICH MAY HAVE A MATERIAL BEARING ON THE
INSURANCE COMPANY'S NEED FOR EQUITABLE RELIEF. 

SINCE THE INSURANCE COMPANY HAS NO REMEDY AT LAW IN THE FEDERAL
COURTS FOR THE CANCELLATION OF THE POLICIES, SEC. 267 INTERPOSES NO
OBSTACLE TO A SUIT IN EQUITY IN A FEDERAL COURT.  BUT IT IS REQUISITE
UNDER SEC. 24(1) OF THE JUDICIAL CODE TO THE MAINTENANCE OF SUIT THERE
THAT FACTS SHOULD BE PRESENTED ENTITLING THE COMPANY TO EQUITABLE
RELIEF.  IN THIS ASPECT OF THE CASE THE CERTIFIED QUESTIONS ARE
INCAPABLE OF CATEGORICAL ANSWER AND THE QUESTIONS WHICH THEY SUGGEST
CAN BE PROPERLY ANSWERED ONLY BY REFRAMING THE QUESTIONS CERTIFIED OR
GIVING QUALIFIED ANSWERS TO THEM.  THIS WE ARE NOT REQUIRED TO DO, SEE
JEWELL V. KNIGHT, 123 U.S. 426, 432, 435; CHICAGO, B. & Q. RY. CO. V.
WILLIAMS, 205 U.S. 444; UNITED STATES V. JOHN BARTH CO., 276 U.S. 606;
WHITE V. JOHNSON, 282 U.S. 367, AND CANNOT PROPERLY DO WITHOUT RECOURSE
TO THE RECORD, WHICH IS NOT BEFORE US.    THE SUIT AT LAW IN THE STATE
COURT IN THIS CASE WAS BROUGHT SHORTLY BEFORE THE EXPIRATION OF THE TWO
YEAR PERIOD AFTER WHICH THE INCONTESTABLE CLAUSE, ACCORDING TO ITS
TERMS, WOULD COME INTO OPERATION.  THE FACT THAT THAT PERIOD WAS ABOUT
TO EXPIRE WAS THOUGHT TO BE A SUFFICIENT GROUND FOR RESORT TO EQUITY IN
AMERICAN LIFE INS. CO. V. STEWART, SUPRA, WHERE NO SUIT AT LAW WAS
PENDING OR APPEARED TO BE IMMINENT WHEN THE BILL WAS FILED.  BUT WE
CANNOT SAY, AT LEAST WITHOUT QUALIFICATION, THAT A COMPLAINANT
SIMILARLY SUSTAINS THE BURDEN OF SHOWING THREATENED IRREPARABLE INJURY
WHEN A SUIT AT LAW IS PENDING IN WHICH HE IS FREE TO SET UP AS A
DEFENSE THE FRAUD ON WHICH HE MUST RELY IN A CANCELLATION SUIT IN
EQUITY.  WHETHER THERE ARE OTHER SPECIAL CIRCUMSTANCES IN THE PRESENT
CASE ENTITLING THE INSURANCE COMPANY TO EQUITABLE RELIEF; WHETHER THERE
ARE PECULIARITIES OF LOCAL PROCEDURE WHICH, IN SOME CIRCUMSTANCES,
MIGHT IMPAIR THE INSURANCE COMPANY'S DEFENSE; WHETHER SUCH
CIRCUMSTANCES EXIST; OR WHETHER, UNDER LOCAL LAW, A DEFENSE ONCE
INTERPOSED BEFORE THE POLICY HAS BECOME INCONTESTABLE IS A "CONTEST"
SUFFICIENT TO PRESERVE THE INSURER'S RIGHTS FOR ALL PURPOSES, SEE NEW
YORK LIFE INS. CO. V. HURT, 35 F.2D 92, 95; HARNISCHFEGER SALES CORP.
V. NATIONAL LIFE INS. CORP., 72 F.2D 921, 922; KILLIAN V. METROPOLITAN
LIFE INS. CO., 251 N.Y. 44, 48; 166 N.E. 798, ARE QUESTIONS WHICH THE
CERTIFICATE DOES NOT EXCLUDE FROM THE CASE AND WHICH HAVE NOT BEEN
BRIEFED OR ARGUED HERE.  YET THEY ARE QUESTIONS WHICH MAY REQUIRE
CONSIDERATION BEFORE A COURT CAN DETERMINE WHETHER THE EQUITY SUIT
SHOULD BE DISMISSED OR WHETHER THE BILL SHOULD BE RETAINED WITHOUT
FURTHER PROCEEDINGS PENDING DISPOSITION OF THE SUIT AT LAW, AS MAY BE
DONE BY THE EQUITY COURT IN ITS DISCRETION.  LANDIS V. NORTH AMERICAN
CO., 299 U.S. 248; AMERICAN LIFE INS. CO. V. STEWART, SUPRA, 215.  THE
GUIDING PRINCIPLE IS THAT THE FEDERAL COURT SHOULD PROCEED ONLY SO FAR
AS IS NECESSARY TO PROTECT THE SUITOR FROM LOSS OF HIS DEFENSE AT LAW,
WITHOUT NEEDLESSLY INTERFERING WITH THE DETERMINATION OF THE
PLAINTIFF'S RIGHTS IN THE STATE COURT, WHERE HIS ACTION WAS PROPERLY
BEGUN.  SEE DI GIOVANNI V. CAMDEN FIRE INSURANCE ASSN., SUPRA, 73, AND
CASES CITED. 

THE CERTIFICATE FAILS TO DISCLOSE WHETHER ALL THE FACTS AND
CIRCUMSTANCES PERTINENT TO THIS ISSUE HAVE BEEN CERTIFIED.  THIS COURT
CANNOT BE REQUIRED BY CERTIFICATE TO ANSWER, AND SHOULD NOT ANSWER,
QUESTIONS WHICH MAY BE AFFECTED BY UNSTATED MATTER LURKING IN THE
RECORD, OR QUESTIONS WHICH ADMIT OF ONE ANSWER UNDER ONE SET OF
CIRCUMSTANCES AND A DIFFERENT ANSWER UNDER ANOTHER, NEITHER OF WHICH IS
INCONSISTENT WITH THE CERTIFICATE.  SEE TRIPLETT V. LOWELL, 297 U.S.
638, 648, 649. 

THE CERTIFICATE IS DISMISSED. 

FN1  UNLIKE THE OBJECTION THAT THE COURT IS WITHOUT JURISDICTION AS A
FEDERAL COURT, SEE MANSFIELD, C. & L.M. RY. CO. V. SWAN, 111 U.S. 379,
382, THE PARTIES MAY WAIVE THEIR OBJECTIONS TO THE EQUITY JURISDICTION
BY CONSENT, HOLLINS V. BRIERFIELD COAL & IRON CO., 150 U.S. 371, 380;
RE METROPOLITAN RAILWAY RECEIVERSHIP, 208 U.S. 90; CF. MARIN V.
AUGEDAHL, 247 U.S. 142, OR BY FAILURE TO TAKE IT SEASONABLY.  BROWN V.
LAKE SUPERIOR IRON CO., 134 U.S. 530, 535-536; SOUTHERN PACIFIC R. CO.
V. UNITED STATES (NO. 1), 200 U.S. 341, 349.  THE OBJECTION SHOULD BE
TAKEN BY THE COURT SUA SPONTE, WHEN OBVIOUS, LEWIS V. COCKS, 23 WALL. 
466, 470; SINGER SEWING MACHINE CO. V. BENEDICT, 229 U.S. 481, 484, OR
WHEN THE EXERCISE OF THE EQUITY POWERS OF THE FEDERAL COURT AFFECTS THE
RELATIONSHIP OF THE FEDERAL TO THE STATE COURTS.  SEE KENNEDY V. TYLER,
269 U.S. 13; MATTHEWS V. RODGERS, 284 U.S. 521, 525-526; PENNSYLVANIA
V. WILLIAMS, 294 U.S. 176, 185; DI GIOVANNI V. CAMDEN FIRE INSURANCE
ASSN., 296 U.S. 64, 73.  CF. CENTRAL KENTUCKY NATURAL GAS CO. V.
RAILROAD COMMISSION, 290 U.S. 264, 271-273. 

FN2  "OTHERWISE THE SUITOR IN THE FEDERAL COURTS MIGHT BE ENTITLED TO
A REMEDY IN EQUITY WHICH THE FEDERAL COURTS OF LAW ARE COMPETENT TO
GIVE, OR, ON THE OTHER HAND, BE OBLIGED TO FOREGO HIS RIGHT TO BE HEARD
IN THE FEDERAL COURTS IN ORDER TO SECURE AN EQUITABLE REMEDY WHICH
STATE COURTS OF LAW DO BUT THE FEDERAL COURTS OF LAW DO NOT GIVE.  SEE
STRATTON V. ST. LOUIS SOUTHWESTERN RY., 284 U.S. 530, 533, 534; ...  "
DI GIOVANNI V. CAMDEN FIRE INSURANCE ASSN., 296 U.S. 64, 69. 
..END :














WILENTZ V. SOVEREIGN CAMP, 306 U.S. 573 


NO. 448.  ARGUED MARCH 2, 1939.  - DECIDED APRIL 17, 1939.  - 23
F.SUPP.  23, APPEAL DISMISSED. 


1.  THE REQUIREMENT OF JUDICIAL CODE, SEC. 266 THAT THE THREE JUDGE
COURT PROCEDURE THERE PRESCRIBED WITH DIRECT APPEAL TO THE SUPREME
COURT MAY BE INVOKED ONLY WHEN THE SUIT IS ONE TO RESTRAIN THE ACTION
OF STATE OFFICERS IN THE ENFORCEMENT OR EXECUTION OF A STATE STATUTE,
OR IN THE ENFORCEMENT OR EXECUTION OF AN ORDER MADE BY AN
ADMINISTRATIVE BOARD OR COMMISSION, IS A REQUIREMENT OF SUBSTANCE, NOT
OF FORM, AND IT IS NOT SATISFIED BY JOINING, AS NOMINAL PARTIES
DEFENDANT, STATE OFFICERS WHOSE ACTION IS NOT THE EFFECTIVE MEANS OF
THE ENFORCEMENT OR EXECUTION OF THE CHALLENGED STATUTE OR ORDER.  P.
579. 

2.  THE EXTRAORDINARY PROCEDURE BEFORE A COURT OF THREE JUDGES,
DESIGNED FOR A SPECIFIC CLASS OF CASES SHARPLY DEFINED BY THE STATUTE,
CAN NOT PROPERLY BE EXTENDED TO CASES IN WHICH THERE IS NO SUBSTANTIAL
BASIS FOR RELIEF BY INJUNCTION RESTRAINING THE ACTION OF STATE OFFICERS
IN ENFORCING OR CARRYING INTO EFFECT A CHALLENGED STATE STATUTE OF
GENERAL APPLICATION.  P. 582. 

3.  THE NEW JERSEY MUNICIPAL FINANCE COMMISSION ACT, AS AMENDED,
PROVIDES A SCHEME FOR THE MANAGEMENT OF THE AFFAIRS OF ANY MUNICIPALITY
FOUND BY THE STATE SUPREME COURT TO BE UNABLE TO MEET ITS OBLIGATIONS
WHEN DUE BY A COMMISSION COMPOSED OF STATE OFFICERS ACTING IN
CONJUNCTION WITH THE MUNICIPAL AUTHORITIES.  THE ACT PROVIDES THAT,
WHERE THE COMMISSION SHALL FUNCTION IN ANY MUNICIPALITY OR COTERMINOUS
SCHOOL DISTRICT, ALL SUITS TO RECOVER UPON SCHOOL BONDS, AND EXECUTION
ON JUDGMENTS IN SUCH SUITS, SHALL BE STAYED, EXCEPT WHEN SUCH
PROCEEDINGS MAY BE AUTHORIZED BY THE STATE SUPREME COURT UNDER
CONDITIONS CALCULATED TO SECURE EQUALITY TO ALL CREDITORS.  ALSO, THE
GOVERNING BODY OF A DISTRICT IN WHICH THE COMMISSION IS FUNCTIONING IS
AUTHORIZED TO COMPROMISE DELINQUENT TAXES, EXCEPT CLAIMS IN EXCESS OF
$500, WHICH MAY NOT BE COMPROMISED WITHOUT THE WRITTEN ASSENT OF THE
COMMISSION.  ASSAILING THE STAY AND COMPROMISE PROVISION OF THE ACT AS
VIOLATIVE OF THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION, A
CREDITOR WHO HAD RECOVERED A JUDGMENT ON PREVIOUSLY ACQUIRED SCHOOL
BONDS BROUGHT SUIT TO RESTRAIN THE COMMISSION FROM FUNCTIONING IN THE
MUNICIPALITY AND FROM ASSENTING TO THE COMPROMISE OF DELINQUENT TAXES
DUE THE MUNICIPALITY AND TO RESTRAIN THE LOCAL TAX COLLECTOR FROM
CARRYING INTO EFFECT ANY SUCH COMPROMISE.  HELD: 

(1)  THE SUIT WAS NOT MAINTAINABLE UNDER JUDICIAL CODE SEC. 266, AND
THIS COURT WAS WITHOUT JURISDICTION OF A DIRECT APPEAL THEREUNDER.  P.
582. 

(2)  AS THE PRESCRIBED STAY BECOMES EFFECTIVE BY VIRTUE OF THE
STATUTE WHENEVER THE STATE SUPREME COURT FINDS THAT THE MUNICIPALITY IS
UNABLE TO MEET ITS OBLIGATIONS, THE COMMISSION IS WITHOUT POWER TO
GRANT OR WITHHOLD A STAY, THERE IS NO OCCASION TO ENJOIN ACTION OF THE
COMMISSION AS THE MEANS OF PREVENTING OPERATION OF THE STAY PROVISION
AND THE SUIT SO FAR AS IT SEEKS TO SET THEM ASIDE IS NOT REQUIRED BY
SEC. 266 TO BE TRIED BY A COURT OF THREE JUDGES.  P. 580. 

(3)  THE COMMISSION IS SIMILARLY WITHOUT AUTHORITY TO ENFORCE
PROVISIONS OF THE STATUTE AUTHORIZING MUNICIPAL AUTHORITIES TO
COMPROMISE DELINQUENT TAXES, AND TO CONSENT TO A COMPROMISE WHICH IT
CAN NOT COMMAND IS NOT AN "ORDER" WITHIN THE MEANING OF SEC. 266.  P.
580. 

(4)  THE INJUNCTION SOUGHT TO RESTRAIN THE COMMISSION FROM ASSENTING
TO COMPROMISES OF DELINQUENT TAXES ARRANGED AND TO BE CARRIED INTO
EFFECT BY LOCAL OFFICERS IS BUT INCIDENTAL TO THE PURPOSE OF THE SUIT
TO PREVENT THE PERFORMANCE BY LOCAL OFFICERS OF A LOCAL FUNCTION, AND
SUCH A SUIT IS NOT TO BE BROUGHT WITHIN THE PURVIEW OF SEC. 266 BY THE
EXPEDIENT OF ADDING AS NOMINAL PARTIES THE MEMBERS OF THE COMMISSION
WHO ARE STATE OFFICERS BUT WHOSE PRESENCE IS NOT NECESSARY TO PREVENT
OPERATION OF THE CHALLENGED STATUTE, AND WHOSE ONLY ACTION IS THE
APPROVAL OF THAT OF LOCAL OFFICERS TO BE TAKEN UNDER THE STATUTE.  P.
581. 

4.  ALTHOUGH WITHOUT JURISDICTION TO HEAR THE MERITS OF THE APPEAL
UNDER SEC. 266, THIS COURT IN THE EXERCISE OF ITS APPELLATE
JURISDICTION MAY GIVE DIRECTIONS APPROPRIATE TO ENFORCE THE LIMITATIONS
OF THAT SECTION; AND WHERE THE APPELLANTS HAVE ALREADY TAKEN AN APPEAL
FROM THE DECREE BELOW TO THE CIRCUIT COURT OF APPEALS, THEIR REMEDY
WILL BE PRESERVED BY SIMPLY DISMISSING THE APPEAL TAKEN TO THIS COURT. 
P. 582. 

WILENTZ ET AL. V. SOVEREIGN CAMP, WOODMEN OF THE WORLD. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEW JERSEY. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES HOLDING A
STATE STATUTE UNCONSTITUTIONAL AND GRANTING RELIEF BY INJUNCTION
AGAINST CERTAIN PUBLIC OFFICERS ACTING PURSUANT TO IT. 

EVEN IF THE STAY PROVISIONS AND THE PROVISIONS FOR ACCEPTANCE OF
BONDS IN PAYMENT OF TAXES WERE UNCONSTITUTIONAL, THE THREE-JUDGE COURT
WAS WITHOUT JURISDICTION BECAUSE NO SUBSTANTIAL CASE WAS MADE OUT FOR
AN INJUNCTION AGAINST STATE OFFICERS IN THE ENFORCEMENT OF SUCH
PROVISIONS. 

IF THERE WAS ANY REASON FOR ASKING AN INJUNCTION AGAINST THE
MUNICIPAL FINANCE COMMISSION, WHICH CAN MERELY CONSENT TO COMPROMISES,
THERE WOULD BE MUCH GREATER REASON FOR SEEKING AN INJUNCTION AGAINST
THE BODY WHICH ARRANGES THE COMPROMISES.  AN INJUNCTION AGAINST THE
COMMISSION'S CONSENTING TO THAT PRACTICE WOULD ADD NOTHING.  THE
COMMISSION IS, THEREFORE, A COMPLETELY UNNECESSARY PARTY IN THIS
PROCEEDING AND ITS PRESENCE IN THE CASE AS THE OBJECT OF A PRAYER FOR
AN INJUNCTION AGAINST ITS CONSENTING TO BOND SETTLEMENTS SHOULD NOT
HAVE AVAILED TO OUST THE ONE-JUDGE DISTRICT COURT OF JURISDICTION. 

IT IS SETTLED THAT A MERE NOMINAL JOINDER OF STATE OFFICIALS AS
DEFENDANTS IN A CASE WHERE THE SUBSTANTIAL RELIEF SOUGHT IS AN
INJUNCTION AGAINST LOCAL OFFICIALS DOES NOT REQUIRE THE CONVENING OF A
THREE-JUDGE COURT.  PLEASANT V. MISSOURI-KANSAS-TEXAS RY., 66 F.2D 842;
CERTIORARI DENIED 291 U.S. 659. 

RESPECTING THE STAY PROVISIONS OF THE STATUTE, APPELLANTS ASSUME
THAT, BECAUSE THE INJUNCTION GRANTED WAS NARROWER THAN THE PRAYER, THE
COURT LOST ALL JURISDICTION OF THE CASE, DESPITE THE PRESENCE OF THE
ESSENTIAL JURISDICTIONAL ELEMENTS IN THE COMPLAINT.  IT IS DEFINITELY
ESTABLISHED THAT A THREE-JUDGE COURT ONCE HAVING OBTAINED JURISDICTION
BY THE PRESENCE OF A SUBSTANTIAL FEDERAL QUESTION, CAN GIVE RELIEF UPON
A NON-CONSTITUTIONAL GROUND OR REST ITS DECISION SOLELY ON THE BASIS OF
A LOCAL ISSUE, WITHOUT EVEN PASSING UPON THE FEDERAL QUESTIONS. 
LOUISVILLE & N.R. CO. V. GARRETT, 231 U.S. 298; DAVIS V. WALLACE, 257
U.S. 478; STERLING V. CONSTANTIN, 287 U.S. 378; GLENN V. FIELD PACKING
CO., 290 U.S. 177; LEE V. BICKELL, 292 U.S. 145; RAILROAD COMMISSION V.
PACIFIC GAS & ELECTRIC CO., 302 U.S. 388. 

THE CONSENT OF THE COMMISSION IS VITAL TO THE COMPROMISE OF TAXES AND
ACCEPTANCE OF BONDS IN PAYMENT THEREOF.  BY ENJOINING THEM FROM
ASSENTING ON THE GROUND OF UNCONSTITUTIONALITY OF THE STATUTE AND
ACTION THEREUNDER, THE UNLAWFUL PRACTICE IS STOPPED AT THE PROPER PLACE
- THE SPOT WHERE THE ULTIMATE AUTHORITY LIES.  IN FACT, IF ANY PARTY
MIGHT BE OMITTED FROM THE INJUNCTION, IT WOULD BE THE TAX COLLECTOR AND
NOT THE COMMISSION, FOR HE MAY ONLY ACT AFTER THE LATTER HAS APPROVED. 
NORFOLK & WESTERN RY. CO. V. BOARD OF PUBLIC WORKS, 3 F.SUPP.  791. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER WE HAVE JURISDICTION TO CONSIDER THE MERITS
OF THIS APPEAL TAKEN UNDER SEC. 266 OF THE JUDICIAL CODE DIRECTLY TO
THIS COURT FROM THE DECREE OF A DISTRICT COURT OF THREE JUDGES. 

APPELLEE BROUGHT THE PRESENT SUIT IN EQUITY IN THE DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY, PRAYING A DECLARATORY DECREE AGAINST THE
VALIDITY OF CERTAIN PROVISIONS OF THE NEW JERSEY MUNICIPAL FINANCE
COMMISSION ACT, C. 340, NEW JERSEY LAWS OF 1931, AS AMENDED, AND AN
INJUNCTION RESTRAINING STATE AND MUNICIPAL OFFICERS FROM ACTING
PURSUANT TO THE COMMISSION ACT, ON THE GROUND THAT IT IMPAIRS THE
OBLIGATION OF CONTRACT IN VIOLATION OF THE FEDERAL CONSTITUTION BY
DEPRIVING APPELLEE OF THE REMEDIES EXISTING WHEN THE CONTRACTS WERE
ENTERED INTO.  THE COMMISSION ACT PROVIDES AN ELABORATE SCHEME FOR THE
CONTROL AND MANAGEMENT OF THE AFFAIRS OF ANY MUNICIPALITY, FOUND BY THE
SUPREME COURT TO BE UNABLE TO MEET ITS OBLIGATIONS WHEN DUE, BY A
COMMISSION COMPOSED OF STATE OFFICERS ACTING IN CONJUNCTION WITH THE
LOCAL MUNICIPAL AUTHORITIES.  THE ACT, IN ITS AMENDED FORM, APPEARS IN
TITLE 52, C. 27, SECS.1 TO 66, INCLUSIVE, C. 24, SEC. 19.1, C. 14, SEC.
32, TITLE 1, C. 1, SEC. 10, REVISED STATUTES OF NEW JERSEY, 1937. 

APPELLANTS, MEMBERS OF THE MUNICIPAL FINANCE COMMISSION, AND THE
OTHER APPELLANTS, MEMBERS OF THE BOARD OF ASSESSORS OF THE BOROUGH OF
RUNNEMEDE, A NEW JERSEY MUNICIPAL CORPORATION, AND ITS TAX COLLECTOR,
WERE JOINED AS DEFENDANTS.  DECISION ON AN APPLICATION FOR AN
INTERLOCUTORY INJUNCTION, PRESENTED TO THE DISTRICT COURT OF THREE
JUDGES ASSEMBLED PURSUANT TO SEC. 266 OF THE JUDICIAL CODE, AND ALSO ON
A MOTION OF APPELLANTS TO REMIT THE CASE TO A SINGLE DISTRICT JUDGE,
WAS RESERVED, AND THE COURT, AFTER HEARING, RENDERED ITS FINAL DECREE
SUSTAINING APPELLANTS' CONTENTION THAT THE CHALLENGED STATUTE WAS
UNCONSTITUTIONAL AND GRANTING RELIEF BY INJUNCTION AGAINST ALL THE
APPELLANTS.  THE CASE COMES HERE ON APPEAL UNDER SECS. 238 AND 266 OF
THE JUDICIAL CODE.  28 U.S.C. SECS. 345, 380. 

APPELLANTS PRESS HERE THE OBJECTION MADE BELOW THAT THE CASE IS NOT
ONE FOR A COURT OF THREE JUDGES AS PRESCRIBED BY SEC. 266 OF THE
JUDICIAL CODE, AND THAT CONSEQUENTLY THIS COURT IS WITHOUT JURISDICTION
TO PASS ON THE MERITS OF THE APPEAL TAKEN DIRECTLY FROM THE DISTRICT
COURT, A CONTENTION WHICH REQUIRES OUR CONSIDERATION OF THE NATURE OF
THE CAUSE OF ACTION AND OF THE RELIEF SOUGHT AND AWARDED.  SEE OKLAHOMA
GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO., 292 U.S. 386. 

THE BILL OF COMPLAINT STATES THAT APPELLEE, A FRATERNAL BENEFIT LIFE
INSURANCE ASSOCIATION, ORGANIZED UNDER THE LAWS OF NEBRASKA, PURCHASED
ON JUNE 1, 1930, SCHOOL BONDS ISSUED BY THE BOARD OF EDUCATION OF THE
BOROUGH OF RUNNEMEDE, WHICH IS COTERMINOUS WITH THE SCHOOL DISTRICT OF
RUNNEMEDE; THAT DEFAULT HAVING OCCURRED IN THE PAYMENT OF PRINCIPAL AND
INTEREST ON THE BONDS REMAINING UNPAID, APPELLEE BROUGHT SUIT UPON THEM
IN A FEDERAL COURT AND ON DECEMBER 5, 1935, RECOVERED A JUDGMENT
AGAINST THE BOARD OF EDUCATION IN THE SUM OF $21,776.21, EXECUTION UPON
WHICH WAS RETURNED UNSATISFIED; AND THAT APPELLEE THEN BEGAN IN THE
FEDERAL DISTRICT COURT FOR NEW JERSEY A SUIT FOR MANDAMUS, WHICH IS
STILL PENDING UNDECIDED, TO COMPEL THE PROPER OFFICERS OF THE BOROUGH
TO ASSESS AND COLLECT TAXES FOR PAYMENT OF APPELLEE'S JUDGMENT. 

THE BILL OF COMPLAINT FURTHER ALLEGES THAT APPELLEE'S CONTRACT,
ACQUIRED BY THE PURCHASE OF THE BONDS, HAS BEEN IMPAIRED IN VIOLATION
OF THE CONTRACT CLAUSE OF THE CONSTITUTION (ART. I, SEC. 10) BY THE
LATER ENACTMENT OF C. 195, AND SEC. 17 OF C. 258, NEW JERSEY LAWS OF
1935, WHICH EXTENDED THE STAY PROVISIONS OF THE STATE MUNICIPAL FINANCE
COMMISSION ACT (SECS. 351, 352, 354, MUNICIPAL FINANCE COMMISSION ACT,
AS AMENDED BY SECS. 8, 9, C. 330, NEW JERSEY LAWS OF 1933, C. 191, NEW
JERSEY LAWS OF 1935) TO A SCHOOL DISTRICT WHENEVER THE COMMISSION SHALL
FUNCTION IN A MUNICIPALITY WHICH IS COTERMINOUS WITH THE SCHOOL
DISTRICT.  IN THAT EVENT SEC. 17 STAYS SUITS AND PROCEEDINGS FOR
RECOVERY ON SCHOOL BONDS OF THE MUNICIPALITY AND STAYS EXECUTION ON
JUDGMENTS IN SUCH SUITS, EXCEPT THAT THE SUPREME COURT OR ONE OF ITS
JUSTICES IS GIVEN DISCRETIONARY POWER ON APPLICATION, PRESCRIBED BY THE
STATUTE, TO AUTHORIZE THE SUIT TO PROCEED, OR EXECUTION TO ISSUE, UNDER
CONDITIONS CALCULATED TO SECURE EQUALITY OF TREATMENT OF ALL
CREDITORS. 

OF A MUNICIPALITY SHOWING THAT IT "IS NOT IN A POSITION TO MEET ITS
OBLIGATIONS WHEN DUE," A JUSTICE OF THE SUPREME COURT IS AUTHORIZED TO
MAKE AN ORDER TO THAT EFFECT, WHEREUPON THE "COMMISSION SHALL FUNCTION"
IN THAT MUNICIPALITY "WITH ALL THE POWERS AND DUTIES CONFERRED BY THIS
ACT."  IT IS ALLEGED IN THE BILL OF COMPLAINT, AND WAS FOUND BELOW,
THAT A JUSTICE OF THE SUPREME COURT HAD DETERMINED THAT THE BOROUGH OF
RUNNEMEDE WAS UNABLE TO MEET ITS OBLIGATIONS AND THAT THE COMMISSION,
PURSUANT TO THE STATUTE, THEN COMMENCED TO FUNCTION AND HAS SINCE
FUNCTIONED IN THE BOROUGH AND IN ITS COTERMINOUS SCHOOL DISTRICT. 

AS A FURTHER IMPAIRMENT OF APPELLEE'S CONTRACT THE BILL OF COMPLAINT
ALLEGES THAT IN 1930, WHEN THE SCHOOL DISTRICT BONDS WERE ISSUED, THE
STATUTES OF NEW JERSEY PROVIDED THAT TAXES LEVIED ON PROPERTY WITHIN
THE STATE SHOULD BE PAID ONLY IN LAWFUL MONEY OF THE UNITED STATES, BUT
THAT SEC. 6 OF C. 330 OF THE NEW JERSEY LAWS OF 1933 AUTHORIZES THE
GOVERNING BODY OF A MUNICIPALITY IN WHICH THE COMMISSION IS FUNCTIONING
TO COMPROMISE AND ADJUST DELINQUENT TAXES DUE THE MUNICIPALITY, EXCEPT
CLAIMS FOR TAXES IN EXCESS OF $500, WHICH MAY NOT BE SO COMPROMISED
WITHOUT THE WRITTEN ASSENT OF THE COMMISSION; THAT ACTING UNDER THESE
PROVISIONS THE COMMISSION HAS GIVEN ITS WRITTEN ASSENT TO COMPROMISES
PREVIOUSLY AUTHORIZED BY THE RUNNEMEDE BOROUGH COUNCIL, WHEREBY BONDS
WERE RECEIVED IN PAYMENT OF TAXES DUE THE BOROUGH IN EXCESS OF $500,
THUS IMPAIRING THE SECURITY AND OBLIGATION OF APPELLEE'S BONDS. 

THE BILL OF COMPLAINT PRAYS A JUDICIAL DECLARATION THAT APPELLEE'S
RIGHT TO COMPEL A LEVY AND COLLECTION OF TAXES FOR THE SATISFACTION OF
ITS JUDGMENT IS GOVERNED BY SEC. 35 OF THE EXECUTION ACT OF NEW JERSEY,
2 COMP. STAT. OF NEW JERSEY, P. 2255, AND SEC. 237 OF THE SCHOOL LAW OF
NEW JERSEY, 4 COMP. STAT. OF NEW JERSEY, P. 4804, IN FORCE IN 1930,
WHEN THE SCHOOL BONDS WERE ISSUED; THAT THE STATUTES ASSAILED, C. 330,
NEW JERSEY LAWS OF 1933, CS. 195 AND 258, NEW JERSEY LAWS OF 1935, ALL
AS AMENDED AND SUPPLEMENTED, BE DECLARED UNCONSTITUTIONAL AND VOID AS
INFRINGING THE CONTRACT CLAUSE; THAT THE COMMISSION BE ENJOINED FROM
FUNCTIONING IN THE BOROUGH OF RUNNEMEDE AND FROM ASSENTING TO THE
COMPROMISE OF DELINQUENT TAXES OF THE BOROUGH FOR ANY SUM LESS THAN THE
FULL AMOUNT DUE, AND THAT APPELLANT TAX COLLECTOR BE ENJOINED FROM
CARRYING INTO EFFECT ANY SUCH COMPROMISE; THAT APPELLANTS, THE
BOROUGH'S ASSESSORS AND ITS TAX COLLECTOR, BE ENJOINED FROM ASSESSING
AND COLLECTING TAXES FOR THE YEAR 1936 WITHOUT INCLUDING IN THEM THE
AMOUNT OF APPELLEE'S JUDGMENT. 

THE TRIAL COURT SUSTAINED THE ALLEGATIONS OF THE BILL BY ITS FINDINGS
AND GRANTED THE RELIEF PRAYED, EXCEPT THAT IT DECLINED TO ENJOIN ANY
ACTION BY THE ASSESSORS AND COLLECTOR WITH RESPECT TO THE ASSESSMENT
AND COLLECTION OF 1936 TAXES.  IN ENJOINING THE COMMISSION FROM
FUNCTIONING IN THE BOROUGH THE COURT DIRECTED THAT ITS DECREE SHOULD BE
"WITHOUT PREJUDICE TO ANY OF THE POWERS OR DUTIES OF THE MUNICIPAL
FINANCE COMMISSION UNDER THE MUNICIPAL FINANCE COMMISSION ACT EXCEPT AS
THE STAYS THEREIN CONTAINED AFFECT THE RIGHT OF THE COMPLAINANT TO
ENFORCE ITS JUDGMENT."  THE DECREE IN ITS PRACTICAL OPERATION THUS
ENJOINED NO ACTION BY THE COMMISSION AND AMOUNTED TO NO MORE THAN A
DECLARATION THAT THE STAY PROVISIONS OF THE CHALLENGED STATUTE WERE
INVALID AND UNENFORCEABLE. 

BY SEC. 266 OF THE JUDICIAL CODE, A SUIT IN WHICH APPLICATION IS MADE
AND PRESSED FOR AN INTERLOCUTORY INJUNCTION "RESTRAINING THE
ENFORCEMENT, OPERATION, OR EXECUTION OF ANY STATUTE OF A STATE BY
RESTRAINING THE ACTION OF ANY OFFICER OF SUCH STATE IN THE ENFORCEMENT
OR EXECUTION OF SUCH STATUTE, OR IN THE ENFORCEMENT OR EXECUTION OF AN
ORDER MADE BY AN ADMINISTRATIVE BOARD OR COMMISSION" IS REQUIRED TO BE
HEARD BY A COURT OF THREE JUDGES CONSTITUTED AS THE SECTION
PRESCRIBES.  THE SECTION ALSO DECLARES THAT "A DIRECT APPEAL TO THE
SUPREME COURT MAY BE TAKEN FROM A FINAL DECREE GRANTING OR DENYING A
PERMANENT INJUNCTION IN SUCH SUIT."  OUR JURISDICTION TO HEAR THE
APPEAL ON THE MERITS, WHICH IS NOW CHALLENGED, TURNS UPON THE QUESTION
WHETHER THE PRESENT IS "SUCH SUIT." 

THE REASONS FOR THE ADOPTION OF THE EXTRAORDINARY PROCEDURE
PRESCRIBED BY SEC. 266 OF THE JUDICIAL CODE IN THE CLASS OF CASES
DEFINED BY IT, AND THE RULE THAT IT MAY BE INVOKED ONLY WHEN THE SUIT
IS ONE TO RESTRAIN STATE OFFICERS, HAVE OFTEN BEEN POINTED OUT.  EX
PARTE COLLINS, 277 U.S. 565; EX PARTE PUBLIC NATIONAL BANK, 278 U.S.
101; STRATTON V. ST. LOUIS SOUTHWESTERN RY. CO., 282 U.S. 10; OKLAHOMA
GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO., SUPRA.  THIS REQUIREMENT IS
ONE OF SUBSTANCE, NOT OF FORM, AND IT IS NOT SATISFIED BY JOINING, AS
NOMINAL PARTIES DEFENDANT, STATE OFFICERS WHOSE ACTION IS NOT THE
EFFECTIVE MEANS OF THE ENFORCEMENT OR EXECUTION OF THE CHALLENGED
STATUTE.  SEE OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO.,
SUPRA, 391. 

BY ITS TERMS SEC. 266 EMBRACES ONLY THOSE CASES IN WHICH AN
INTERLOCUTORY INJUNCTION IS SOUGHT TO PREVENT THE OPERATION OF A STATE
STATUTE "BY RESTRAINING THE ACTION" OF A STATE OFFICER "IN THE
ENFORCEMENT OR EXECUTION OF SUCH STATUTE."  HERE IT APPEARS ON THE FACE
OF THE BILL OF COMPLAINT, AND FROM THE FINDINGS, THAT THE STATUTES
ASSAILED AS UNCONSTITUTIONAL ARE THOSE PRESCRIBING A STAY OF SUIT OR
EXECUTION AGAINST ANY MUNICIPALITY AND ITS COTERMINOUS SCHOOL DISTRICT
IN WHICH THE COMMISSION IS FUNCTIONING, AND ALSO THE STATUTE WHICH
PERMITS A COMPROMISE OF DELINQUENT TAXES BY SUCH A MUNICIPALITY AND
SCHOOL DISTRICT.  THE ONLY STATE OFFICERS AGAINST WHOM AN INJUNCTION IS
SOUGHT ARE THE MEMBERS OF THE COMMISSION.  BUT THEY ARE CLOTHED WITH NO
AUTHORITY TO ENFORCE THE CHALLENGED STATUTES AND HAVE TAKEN NO STEPS TO
ENFORCE THEM.  THE STAYS PRESCRIBED BY THE STATUTE BECOME EFFECTIVE
WITH RESPECT TO ANY PARTICULAR MUNICIPALITY BY VIRTUE OF OTHER
STATUTORY PROVISIONS WHENEVER THE STATE SUPREME COURT FINDS THAT THE
MUNICIPALITY IS UNABLE TO MEET ITS OBLIGATIONS.  THE ORDER OF THE
SUPREME COURT PROMULGATING ITS FINDING IS THE DECISIVE ACTION WHICH
CALLS THE STAY PROVISIONS INTO OPERATION, AND WHEN THAT ACTION IS TAKEN
THE STATUTE BECOMES SELF-EXECUTING.  THE COMMISSION IS THUS WITHOUT
POWER TO GRANT OR WITHHOLD A STAY, AND AS THE FORM OF THE DECREE,
ALREADY NOTED, SHOWS, THERE IS NO OCCASION TO ENJOIN ACTION BY THE
COMMISSION AS THE MEANS OF PREVENTING OPERATION OF THE STAY
PROVISIONS.    THE COMMISSION IS SIMILARLY WITHOUT AUTHORITY TO ENFORCE
THE PROVISIONS OF THE ACT OF 1933, AUTHORIZING THE COMPROMISE OF
DELINQUENT TAXES.  ITS WRITTEN ASSENT, PREREQUISITE TO EXECUTION OF A
COMPROMISE WHICH THE COMMISSION CANNOT COMMAND, IS NOT AN ORDER WITHIN
THE MEANING OF SEC. 266.  GREAT NORTHERN RY. CO. V. UNITED STATES, 277
U.S. 172.  THE BOROUGH COUNCIL, WHOSE MEMBERS ARE NOT STATE OFFICERS
AND ARE NOT PARTIES TO THE PRESENT SUIT, IS THE EXCLUSIVE AGENCY FOR
ARRANGING THE COMPROMISE.  THE EFFECTIVE AGENT FOR CARRYING THE STATUTE
INTO EXECUTION IS APPELLANT BOROUGH TAX COLLECTOR, WHO IS NOT A STATE
OFFICER.  THE FUNCTIONS WHICH THE COUNCIL AND THE COLLECTOR PERFORM,
AFFECTING THE COLLECTION OF TAXES FOR PAYMENT OF THE LOCAL SCHOOL
DISTRICT BONDS, ARE NOT STATE, BUT LOCAL FUNCTIONS, AND A SUIT FOR AN
INJUNCTION RESTRAINING SUCH ACTION BY LOCAL OFFICERS IS NOT WITHIN SEC.
266.  EX PARTE COLLINS, SUPRA; EX PARTE PUBLIC NATIONAL BANK OF NEW
YORK, SUPRA; CF. SPIELMAN MOTOR CO. V. DODGE, 295 U.S. 89. 

EVEN THOUGH THE WRITTEN ASSENT OF THE COMMISSION, WITHOUT WHICH THERE
CAN BE NO COMPROMISE OF TAX CLAIMS IN EXCESS OF $500, BE SAID TO BE
ACTION IN "EXECUTION" OF THE STATUTE, WE THINK THIS CASE IS NOT ONE FOR
A COURT OF THREE JUDGES, BECAUSE THE INJUNCTION SOUGHT AGAINST THE
COMMISSION IS BUT INCIDENTAL TO THE SOLE PURPOSE OF THE SUIT TO PREVENT
THE PERFORMANCE BY LOCAL OFFICERS OF A LOCAL FUNCTION.  THE MEMBERS OF
THE COMMISSION ARE NOT NECESSARY PARTIES TO THE SUIT, AND THERE IS NO
OCCASION FOR RELIEF AGAINST THEM IN ADDITION TO THAT SOUGHT AGAINST THE
COLLECTOR.  THE COMMISSION, IN THE PERFORMANCE OF ITS STATUTORY DUTY,
ACTS ONLY TO APPROVE THE EXERCISE BY LOCAL OFFICERS OF AN AUTHORITY
CONFERRED ON THEM AS SUCH.  A SUIT TO RESTRAIN THE LATTER FROM CARRYING
INTO EXECUTION A STATE STATUTE BY PERFORMANCE OF THE LOCAL FUNCTION
WHICH IT AUTHORIZES IS NOT TO BE BROUGHT WITHIN THE PURVIEW OF SEC. 266
BY THE EXPEDIENT OF ADDING AS NOMINAL PARTIES STATE OFFICERS WHOSE
PRESENCE IS NOT NECESSARY TO PREVENT THE OPERATION OF THE CHALLENGED
STATUTE AND WHOSE ONLY ACTION IS THE APPROVAL OF THAT OF LOCAL OFFICERS
TO BE TAKEN UNDER IT.  IN SUCH CIRCUMSTANCES THEIR PRESENCE IN THE SUIT
GENERATES NO INTEREST WHICH IT IS THE PURPOSE OF SEC. 266 TO PROTECT
AND MUST BE REGARDED AS COLORABLE ONLY FOR THE PURPOSE OF SECURING THE
ADVANTAGES OF PROCEEDING BEFORE A COURT OF THREE JUDGES, AS WAS THE
PRESENCE OF THE STATE OFFICERS IN OKLAHOMA GAS & ELECTRIC CO. V.
OKLAHOMA PACKING CO., SUPRA, WHERE IT WAS HELD THAT THERE WAS NO APPEAL
UNDER SEC. 266. 

THE EXTRAORDINARY PROCEDURE BEFORE A COURT OF THREE JUDGES, DESIGNED
FOR A SPECIFIC CLASS OF CASES SHARPLY DEFINED BY THE STATUTE, CANNOT
PROPERLY BE EXTENDED TO CASES IN WHICH THERE IS NO SUBSTANTIAL BASIS
FOR RELIEF BY INJUNCTION RESTRAINING THE ACTION OF STATE OFFICERS IN
ENFORCING OR CARRYING INTO EFFECT A CHALLENGED STATE STATUTE OF GENERAL
APPLICATION.  EX PARTE COLLINS, SUPRA; OKLAHOMA GAS & ELECTRIC CO. V.
OKLAHOMA PACKING CO., SUPRA, 391.  HERE THE ISSUE IS NOT ONE OF
JURISDICTION OF THE DISTRICT COURT AS A FEDERAL COURT, SEE EX PARTE
PORESKY, 290 U.S. 30, 31; HEALY V. RATTA, 292 U.S. 263, BUT IS WHETHER
A FINAL HEARING BY THREE JUDGES IS PRESCRIBED BY THE SECTION AND HENCE
WHETHER THIS COURT HAS JURISDICTION TO HEAR THE APPEAL.  SMITH V.
WILSON, 273 U.S. 388.  AS THE CASE WAS NOT ONE FOR WHICH A COURT OF
THREE JUDGES IS PRESCRIBED BY SEC. 266, NO APPEAL LIES TO THIS COURT
AND IT IS WITHOUT JURISDICTION TO HEAR THE MERITS OF THE APPEAL. 

IN THE EXERCISE OF ITS APPELLATE JURISDICTION, THIS COURT HAS
AUTHORITY TO GIVE SUCH DIRECTIONS AS MAY BE APPROPRIATE TO ENFORCE THE
LIMITATIONS OF SEC. 266, AND MAY FRAME ITS MANDATE IN SUCH MANNER AS
WILL SAVE TO APPELLANTS THEIR APPROPRIATE REMEDY BY APPEAL TO THE
PROPER COURT.  OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO.,
SUPRA; GULLY V. INTERSTATE NATURAL GAS CO., 292 U.S. 16.  BUT AS IS
INDICATED BY THE BRIEFS, APPELLANTS HAVE ALREADY TAKEN AN APPEAL FROM
THE DECREE BELOW TO THE COURT OF APPEALS FOR THE THIRD CIRCUIT, AND IT
THUS APPEARS THAT THEIR REMEDY WILL BE PRESERVED BY DISMISSING THE
APPEAL TO THIS COURT WITHOUT MORE. 

THE APPEAL WILL BE DISMISSED WITH COSTS TO APPELLANTS.  SEE MANSFIELD,
C. & L.M. RY. CO. V. SWAN, 111 U.S. 379, 387; OKLAHOMA GAS & ELECTRIC
CO. V. OKLAHOMA PACKING CO., SUPRA.  APPEAL DISMISSED. 
..END :
























CLARK V. PAUL GRAY, INC., 306 U.S. 583 


NO. 534.  ARGUED MARCH 27, 1939.  - DECIDED APRIL 17, 1939.  - 23
F.SUPP.  946, REVERSED. 


1.  THE COURT RAISES SUA SPONTE THE QUESTION WHETHER JURISDICTIONAL
AMOUNTS WERE IN CONTROVERSY IN THE DISTRICT COURT.  P. 588. 

2.  WHEN SEVERAL PLAINTIFFS ASSERT SEPARATE AND DISTINCT DEMANDS IN A
SINGLE SUIT, THE AMOUNTS INVOLVED CAN NOT BE ADDED TOGETHER TO SATISFY
JURISDICTIONAL REQUIREMENTS; JURISDICTION AS TO EACH SEPARATE
CONTROVERSY DEPENDS UPON THE AMOUNT INVOLVED IN THAT CONTROVERSY.  P.
589. 

3.  WHEN SEVERAL PLAINTIFFS ASSERT SEPARATE AND DISTINCT DEMANDS IN
ONE SUIT, A GENERAL ALLEGATION IN THE BILL THAT THE AMOUNT INVOLVED IN
THE LITIGATION IS IN EXCESS OF $3,000 AND A FINDING OF THE DISTRICT
COURT THAT THE AMOUNT INVOLVED IN THE SUIT EXCEEDS THE JURISDICTIONAL
AMOUNT, GIVE NO INDICATION THAT THE AMOUNT IN CONTROVERSY WITH RESPECT
TO THE CLAIM OF ANY SINGLE PLAINTIFF EXCEEDS THE JURISDICTIONAL AMOUNT,
AND ARE INSUFFICIENT TO SHOW THAT THE DISTRICT COURT HAD JURISDICTION
OF THE CAUSE.  P. 589. 

4.  THE AMOUNT IN CONTROVERSY IN A SUIT TO RESTRAIN ILLEGAL
IMPOSITION OF FEES OR TAXES IS THE AMOUNT OF THE FEES AND TAXES WHICH
WOULD NORMALLY BE COLLECTED DURING THE PERIOD OF THE LITIGATION.  P.
589. 

5.  THE QUESTION WHETHER THE JURISDICTIONAL AMOUNT WAS INVOLVED IN
THE DISTRICT COURT IS DETERMINED BY THE RECORD OF THAT COURT, WHICH CAN
NOT BE SUPPLEMENTED BY AFFIDAVITS FILED IN THIS COURT.  P. 590. 

6.  A SUIT BY SEVERAL PLAINTIFFS, EACH BOUND TO ESTABLISH THE
JURISDICTIONAL AMOUNT WITH RESPECT TO HIS OWN CLAIM, SHOULD BE
DISMISSED AS TO THOSE WHO FAIL TO DO SO.  P. 590. 

7.  THE STATES HAVE CONSTITUTIONAL AUTHORITY TO EXACT REASONABLE FEES
FOR THE USE OF THEIR HIGHWAYS BY VEHICLES MOVING INTERSTATE; AND FOR
THAT PURPOSE THEY MAY CLASSIFY THE VEHICLES ACCORDING TO THE CHARACTER
OF THE TRAFFIC AND THE BURDEN IT IMPOSES ON THE STATE BY THAT USE, AND
CHARGE FOR THE USE A FEE NOT SHOWN TO BE UNREASONABLE OR EXCESSIVE.  P.
593. 

8.  SUCH CLASSIFICATION IS A LEGISLATIVE ACT AND IS PRESUMED TO BE
SUPPORTED BY FACTS KNOWN TO THE LEGISLATURE, UNLESS FACTS JUDICIALLY
KNOWN OR PROVED PRECLUDE THAT POSSIBILITY.  P. 594. 

9.  IN PASSING UPON THE VALIDITY OF SUCH A CALSSIFICATION, THE
FUNCTION OF THE COURT IS TO DETERMINE WHETHER IT IS POSSIBLE TO SAY
THAT THE LEGISLATIVE DECISION IS WITHOUT RATIONAL BASIS.  THIS IS
EQUALLY THE CASE WHERE THE CLASSIFICATION, WHICH IS ONE WHICH THE
LEGISLATURE WAS COMPETENT TO MAKE, IS APPLIED TO VEHICLES USING THE
STATE HIGHWAYS IN INTERSTATE COMMERCE.  P. 594. 

10.  THE CALIFORNIA "CARAVAN" ACT OF 1937, DEFINING "CARAVANING" AS
THE TRANSPORTATION OF ANY VEHICLE OPERATED ON ITS OWN WHEELS, OR IN TOW
OF A MOTOR VEHICLE, FOR THE PURPOSE OF SALE, EXACTS TWO LICENSE FEES,
EACH OF $7.50, FOR A SIX MONTH'S PERMIT TO "CARAVAN" A VEHICLE ON THE
STATE HIGHWAYS.  ONE OF THE FEES IS DECLARED TO BE TO REIMBURSE THE
STATE FOR EXPENSE INCURRED IN ADMINISTERING POLICE REGULATIONS
PERTAINING TO THE OPERATION OF VEHICLES MOVED PURSUANT TO SUCH PERMITS,
AND PERTAINING TO PUBLIC SAFETY UPON THE HIGHWAYS AS AFFECTED BY SUCH
OPERATION; THE OTHER IS DECLARED TO BE COMPENSATION FOR THE PRIVILEGE
OF USING THE PUBLIC HIGHWAYS.  VEHICLES MOVING WHOLLY WITHIN EITHER OF
TWO ZONES, WHICH ARE APPROXIMATELY THE NORTHERN AND SOUTHERN HALVES OF
THE STATE, ARE EXCEPTED FROM THE OPERATION OF THE STATUTE.  HELD: 

(1)  THAT THE TAX IS NOT AN UNCONSTITUTIONAL BURDEN ON INTERSTATE
COMMERCE, NOR AN INFRACTION OF THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMENDMENT, AS APPLIED TO ONE ENGAGED IN THE
DISTINCT BUSINESS OF BRINGING MOTOR CARS INTO THE STATE FOR SALE, IN
EXTENSIVE CARAVANS OR CONVOYS COMPOSED LARGELY OF CARS COUPLED IN TWOS,
EACH PAIR IN CONTROL OF A SINGLE DRIVER.  CF. MORF V. BINGAMAN, 298
U.S. 407.  PP. 594-595. 

THE EVIDENCE SHOWS THAT COUPLED CARS, UNDER CONTROL OF A SINGLE
DRIVER, SUBJECT THE HIGHWAYS TO INCREASED WEAR AND TEAR BECAUSE OF
THEIR TENDENCY TO SKID AND SWAY ON CURVES AND IN PASSING OTHER TRAFFIC,
AND THAT THE LENGTH OF THE CARAVANS AND THE INEFFICIENCY AND
IRRESPONSIBILITY OF THE DRIVERS, CASUALLY EMPLOYED, INCREASE TRAFFIC
CONGESTION AND THE INCONVENIENCES AND HAZARDS OF AUTOMOBILE TRAFFIC. 
THESE CIRCUMSTANCES HAVE CAUSED THE STATE TO MAKE INCREASED PROVISION
FOR THE POLICING OF THE TRAFFIC. 

(2)  ONE ENGAGED IN THIS CLASS OF HIGHWAY TRAFFIC HAS NO GROUND OR
STATUS TO COMPLAIN OF THE DISCRIMINATION INVOLVED IN EXACTING THE FEES
WHERE CARS ARE TRANSPORTED INTO THE STATE FOR SALE SINGLY AND NOT WHERE
THEY MOVE SINGLY INTRAZONE OR ENTER THE STATE NOT FOR PURPOSES OF
SALE.  P. 595. 

(3)  NO UNCONSTITUTIONAL DISCRIMINATION RESULTS FROM FAILURE TO APPLY
THE STATUTE TO CARS THAT MOVE FOR SALE INTRAZONE IN CARAVANS, IT
APPEARING THAT CARS IN THAT CLASS ARE DRIVEN RELATIVELY SHORT
DISTANCES, OVER HIGHWAYS OF MORE THAN TWO LANES, AS DISTINGUISHED FROM
CARAVANS COMING FROM WITHOUT THE STATE, WHICH MOVE FOR LONG DISTANCES
OVER TWO-LANE HIGHWAYS IN MOUNTAIN DISTRICTS; THAT SUCH INTRAZONE
CARAVANS OR CONVOYS AS THERE ARE CONSIST OF TWO TO FOUR CARS; THAT
COUPLING IS NEGLIGIBLE; THAT EACH CAR IS IN CHARGE OF A REGULARLY
LICENSED DRIVER; AND THAT SUCH INTRAZONE MOVEMENT IS SUBJECT TO OTHER
LICENSING AND TAXING PROVISIONS, THE DIFFERENCES BETWEEN WHICH AND THE
EXACTIONS HERE IN QUESTION MAY BEAR A FAIR RELATION TO THE DIFFERENCES
IN THE BURDEN OF THE TRAFFIC FOR WHICH THE STATE MUST PROVIDE.  P.
596. 

(4)  THE LEGISLATURE HAVING MADE ITS CLASSIFICATION BY THE
ESTABLISHMENT OF ZONES, IN THE LIGHT OF SPECIAL CONDITIONS IN THE
STATE, COURTS ARE NOT FREE TO SET ASIDE ITS DETERMINATION UNLESS THEY
CAN SAY THAT IT IS WITHOUT ANY SUBSTANTIAL BASIS.  P. 596. 

(5)  THE COMPLAINANT HAS NOT SUSTAINED THE BURDEN OF PROVING, AND THE
EVIDENCE DOES NOT SHOW, THAT THE FEES EXACTED BY THE STATUTE ARE
EXCESSIVE, FOR THE PURPOSES INDICATED.  P. 600. 

CLARK, DIRECTOR OF DEPARTMENT OF MOTOR VEHICLES, ET AL. V. PAUL GRAY,
INC. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

APPEAL FROM A FINAL DECREE OF THE DISTRICT COURT OF THREE JUDGES
WHICH ENJOINED THE APPELLANTS, OFFICERS OF THE STATE OF CALIFORNIA,
FROM ENFORCING STATUTORY PROVISIONS IMPOSING LICENSE FEES FOR THE USE
OF THE STATE HIGHWAYS IN THE TRANSPORTATION FOR SALE OF MOTOR VEHICLES
IN "CARAVANS." 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTIONS FOR DECISION ARE WHETHER THE CALIFORNIA
CARAVAN ACT OF 1937, EXACTING FEES AGGREGATING $15 FOR EACH AUTOMOBILE
DRIVEN INTO THE STATE FOR SALE, IMPOSES A FORBIDDEN BURDEN ON
INTERSTATE COMMERCE OR INFRINGES THE DUE PROCESS OR EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMENDMENT. 

THIS IS AN APPEAL UNDER SECS. 238(3), 266 OF THE JUDICIAL CODE; 28
U.S.C. SECS. 345(3), 380, FROM A FINAL DECREE OF THE DISTRICT COURT FOR
SOUTHERN CALIFORNIA, THREE JUDGES SITTING, ENJOINING APPELLANTS,
OFFICERS OF THE STATE OF CALIFORNIA, FROM ENFORCING THE LICENSE AND FEE
PROVISIONS OF CHAPTER 788, P. 2253, CALIFORNIA STATUTES OF 1937.  GRAY
V. INGELS, 23 F.SUPP.  946.  FN1 

THE STATUTE, KNOWN AS THE CARAVAN ACT, WAS ENACTED AS A SUBSTITUTE
FOR THE CARAVAN ACT OF 1935, C. 402, CAL. STAT. 1935, HELD INVALID IN
INGELS V. MORF, 300 U.S. 290, AS AN INFRINGEMENT OF THE COMMERCE
CLAUSE.  "CARAVANING" IS DEFINED IN SEC. 1 OF THE PRESENT ACT AS THE
"TRANSPORTATION OF ANY VEHICLE  ...  OPERATED ON ITS OWN WHEELS, OR IN
TOW OF A MOTOR VEHICLE, FOR THE PURPOSE OF SELLING OR OFFERING THE SAME
FOR SALE  ...  WITHIN OR WITHOUT THIS STATE."  SECTIONS 4, 5 AND 6
EXACT IN LIEU OF ALL OTHER FEES TWO LICENSE FEES, EACH OF $7.50, FOR A
SIX-MONTHS PERMIT FOR CARAVANING A VEHICLE ON THE STATE HIGHWAYS.  ONE
OF THESE IS "TO REIMBURSE THE STATE FOR EXPENSE INCURRED IN
ADMINISTERING POLICE REGULATIONS PERTAINING TO THE OPERATION OF
VEHICLES MOVED PURSUANT TO SUCH PERMITS AND TO PUBLIC SAFETY UPON THE
HIGHWAYS AS AFFECTED BY SUCH OPERATION"; THE OTHER IS DECLARED TO BE
"COMPENSATION FOR THE PRIVILEGE OF USING THE PUBLIC HIGHWAYS."  SECTION
8 EXCEPTS FROM THE OPERATION OF THE STATUTE VEHICLES MOVING WHOLLY
WITHIN EITHER OF TWO ZONES WHICH ARE APPROXIMATELY THE NORTHERN AND
SOUTHERN HALVES OF THE STATE.  OTHER SECTIONS OF THE ACT MAKE PROVISION
FOR THE ISSUANCE OF LICENSES AND THE COLLECTION OF FEES.  SECTION 12
PROVIDES FOR THE COLLECTION OF FEES BY SEIZURE AND SALE OF VEHICLES
TRANSPORTED IN VIOLATION OF THE ACT, AND SEC. 13 PRESCRIBES CRIMINAL
PENALTIES FOR VIOLATION. 

APPELLEES, NUMEROUS INDIVIDUALS, COPARTNERSHIPS AND CORPORATIONS,
JOINED IN BRINGING THE PRESENT SUIT AGAINST APPELLANTS, STATE OFFICERS
CHARGED WITH THE DUTY OF ENFORCING THE ACT, ALLEGING THAT EACH APPELLEE
HAD DRIVEN AND WOULD IN THE COURSE OF BUSINESS DRIVE AUTOMOBILES INTO
CALIFORNIA FOR THE PURPOSE OF SALE.  THEY PRAYED AN INJUNCTION
RESTRAINING APPELLANTS FROM COLLECTING THE FEES AND ENFORCING THE
PROVISIONS OF THE STATUTE IN AID OF THEIR COLLECTION.  THE DISTRICT
COURT'S FINDINGS STATE THAT THE AMOUNT INVOLVED IN THE ACTION IS IN
EXCESS OF THE SUM OF $3,000; THAT EACH OF APPELLEES, IN THE COURSE OF
BUSINESS OF SELLING MOTOR CARS, PURCHASES CARS PREVIOUSLY REGISTERED IN
OTHER STATES AND "CARAVANS" THEM INTO THE STATE OF CALIFORNIA; THAT
CARS FOR SALE ARE OFTEN MOVED BETWEEN POINTS IN A STATE ZONE; THAT THE
OPERATION OF CARS IN CARAVANS DOES NOT CREATE AN ADDITIONAL HAZARD OR A
TRAFFIC PROBLEM NECESSITATING SPECIAL POLICING OF THE CARAVANS AND THAT
THE CARAVANING OF CARS DOES NOT CREATE UNDUE WEAR AND TEAR ON THE
HIGHWAYS OF THE STATE; THAT THE FEES CHARGED ARE EXCESSIVE AND BEAR NO
RELATION TO THE ADDED EXPENSE TO THE MOTOR VEHICLE DEPARTMENT OF
POLICING THE HIGHWAYS OF THE STATE OF CALIFORNIA; AND THAT THEY ARE
DISPROPORTIONATE TO OTHER TAXES OR LICENSE FEES CHARGED BY THE STATE
FOR THE USE OF THE HIGHWAYS.  THE COURT CONCLUDED THAT THE STATUTE
DISCRIMINATED AGAINST INTERSTATE COMMERCE, DEPRIVED APPELLEES OF THEIR
PROPERTY WITHOUT DUE PROCESS, AND DENIED TO THEM EQUAL PROTECTION OF
THE LAWS, IN THAT IT APPLIES ONLY TO THOSE USING THE HIGHWAYS FOR THE
TRANSPORTATION OF MOTOR VEHICLES FOR THE PURPOSES OF SALE AND DOES NOT
APPLY TO OTHER PERSONS USING THE HIGHWAYS UNDER COMPARABLE
CIRCUMSTANCES. 

APPELLANTS ASSAIL HERE THE FINDINGS OF FACT OF THE COURT BELOW ON
WHICH IT PREDICATED ITS CONCLUSION OF UNCONSTITUTIONALITY, AND INSIST
THAT UPON THE EVIDENCE THERE IS NO BASIS FOR THE CONCLUSION THAT THE
FEES EXACTED ARE EXCESSIVE OR THAT THERE IS DISCRIMINATION AGAINST
INTERSTATE COMMERCE OR A DENIAL OF EQUAL PROTECTION OR DUE PROCESS. 

JURISDICTION OF THE DISTRICT COURT. 

A MOTION OF APPELLANTS IN THE COURT BELOW TO DISMISS THE BILL OF
COMPLAINT FOR WANT OF THE JURISDICTIONAL AMOUNT WAS WITHDRAWN, AND THE
JURISDICTION OF THE DISTRICT COURT IS NOT CHALLENGED HERE.  BUT ON THE
ARGUMENT, IT APPEARING DOUBTFUL WHETHER THE "MATTER IN CONTROVERSY"
EXCEEDED "THE SUM OR VALUE OF" $3,000, SEC. 24(1) OF THE JUDICIAL CODE;
28 U.S.C. SEC. 41(1), WE RAISED THE QUESTION WHETHER THE JURISDICTIONAL
AMOUNT WAS INVOLVED, AS WAS OUR DUTY.  MANSFIELD, C. & L.M. RY. CO. V.
SWAN, 111 U.S. 379, 382; STRATTON V. ST. LOUIS SOUTHWESTERN RY. CO.,
282 U.S. 10, 13; ST. PAUL MERCURY INDEMNITY CO. V. RED CAB CO., 303
U.S. 283, 287, NOTE 10.  THE BILL OF COMPLAINT ALLEGES GENERALLY THAT
"THE AMOUNT INVOLVED IN THIS LITIGATION IS IN EXCESS OF THREE THOUSAND
DOLLARS ($3,000.00), EXCLUSIVE OF INTEREST AND COSTS."  BUT IT IS PLAIN
THAT THIS ALLEGATION IS INSUFFICIENT TO SATISFY JURISDICTIONAL
REQUIREMENTS WHERE THERE ARE NUMEROUS PLAINTIFFS HAVING NO JOINT OR
COMMON INTEREST OR TITLE IN THE SUBJECT MATTER OF THE SUIT.  AS THE
BILL OF COMPLAINT SHOWS ON ITS FACE, AND AS THE FINDINGS ESTABLISH,
EACH APPELLEE MAINTAINS HIS OWN SEPARATE AND INDEPENDENT BUSINESS,
WHICH IS SAID TO BE AFFECTED BY THE CHALLENGED FEES.  NO JOINT OR
COMMON INTEREST OF APPELLEES IN THE SUBJECT MATTER OF THE SUIT IS
SHOWN.  CF. GIBBS V. BUCK, 307 U.S. 66. 

IT IS A FAMILIAR RULE THAT WHEN SEVERAL PLAINTIFFS ASSERT SEPARATE
AND DISTINCT DEMANDS IN A SINGLE SUIT, THE AMOUNT INVOLVED IN EACH
SEPARATE CONTROVERSY MUST BE OF THE REQUISITE AMOUNT TO BE WITHIN THE
JURISDICTION OF THE DISTRICT COURT, AND THAT THOSE AMOUNTS CANNOT BE
ADDED TOGETHER TO SATISFY JURISDICTIONAL REQUIREMENTS.  WHELESS V. ST.
LOUIS, 180 U.S. 379; ROGERS V. HENNEPIN COUNTY, 239 U.S. 621; PINEL V.
PINEL, 240 U.S. 594; SCOTT V. FRAZIER, 253 U.S. 243.  THE GENERAL
ALLEGATION IN THE BILL OF COMPLAINT THAT "THE AMOUNT INVOLVED IN THIS
LITIGATION IS IN EXCESS OF" $3,000 AND THE FINDING OF THE COURT THAT
"THE AMOUNT INVOLVED IN THE WITHIN ACTION" EXCEEDS THE JURISDICTIONAL
AMOUNT, GIVE NO INDICATION THAT THE AMOUNT IN CONTROVERSY WITH RESPECT
TO THE CLAIM OF ANY SINGLE PLAINTIFF EXCEEDS THE JURISDICTIONAL AMOUNT
AND ARE INSUFFICIENT TO SHOW THAT THE DISTRICT COURT HAD JURISDICTION
OF THE CAUSE.  PINEL V. PINEL, SUPRA. 

EXAMINATION OF THE RECORD SHOWS THAT ONLY IN THE CASE OF A SINGLE
APPELLEE, PAUL GRAY, INC., IS THERE ANY ALLEGATION OR PROOF TENDING TO
SHOW THE AMOUNT IN CONTROVERSY.  AS TO IT THE BILL OF COMPLAINT ALLEGES
THAT "IT CAUSES TO BE CARAVANED INTO THE SAID STATE  ...  APPROXIMATELY
ONE HUNDRED FIFTY (150) AUTOMOBILES EACH YEAR."  THIS ALLEGATION IS
SUPPORTED BY EVIDENCE THAT THIS APPELLEE IS REGULARLY ENGAGED IN THE
BUSINESS AND TENDING TO SHOW THAT ITS VOLUME EXCEEDED THAT AMOUNT WHEN
THE ACT WENT INTO EFFECT JULY 2, 1937.  SINCE THE AMOUNT IN CONTROVERSY
IN A SUIT TO RESTRAIN ILLEGAL IMPOSITION OF FEES OR TAXES IS THE AMOUNT
OF THE FEES OR TAXES WHICH WOULD NORMALLY BE COLLECTED DURING THE
PERIOD OF THE LITIGATION, HEALY V. RATTA, 292 U.S. 263, WE CANNOT SAY,
UPON THIS STATE OF THE RECORD, THAT JURISDICTION WAS NOT ESTABLISHED AS
TO APPELLEE PAUL GRAY, INC. 

WE IGNORE AFFIDAVITS FILED HERE FOR THE PURPOSE OF SUPPLEMENTING THE
RECORD BY SHOWING THE AMOUNT IN CONTROVERSY AS TO ANOTHER APPELLEE. 
WHILE IT HAS BEEN THE PRACTICE OF THIS COURT TO RECEIVE AFFIDAVITS FOR
THE PURPOSE OF ESTABLISHING ITS OWN APPELLATE JURISDICTION UNDER
STATUTES PRESCRIBING THAT A SPECIFIED AMOUNT IN CONTROVERSY IS
PREREQUISITE TO THE APPEAL, WILLIAMSON V. KINCAID, 4 DALL.  20; RUSH V.
PARKER, 5 CRANCH 287; ROURA V. PHILIPPINE ISLANDS, 218 U.S. 386; SEE
RED RIVER CATTLE CO. V. NEEDHAM, 137 U.S. 632, THAT PROCEDURE IS
INAPPLICABLE HERE.  OUR REVIEW OF THE ACTION OF THE DISTRICT COURT IN
ASSUMING JURISDICTION IS CONFINED TO THE RECORD BEFORE THE DISTRICT
COURT.  HENNEFORD V. NORTHERN PACIFIC RY. CO., 303 U.S. 17. 

PROPER PRACTICE REQUIRES THAT WHERE EACH OF SEVERAL PLAINTIFFS IS
BOUND TO ESTABLISH THE JURISDICTIONAL AMOUNT WITH RESPECT TO HIS OWN
CLAIM, THE SUIT SHOULD BE DISMISSED AS TO THOSE WHO FAIL TO SHOW THAT
THE REQUISITE AMOUNT IS INVOLVED.  FN2  OTHERWISE AN APPELLATE COURT
COULD BE CALLED ON TO SUSTAIN A DECREE IN FAVOR OF A PLAINTIFF WHO HAD
NOT SHOWN THAT HIS CLAIM INVOLVED THE JURISDICTIONAL AMOUNT, EVEN
THOUGH THE SUIT WERE DISMISSED ON THE MERITS AS TO THE OTHER PLAINTIFFS
WHO HAD ESTABLISHED THE JURISDICTIONAL AMOUNT FOR THEMSELVES.  ALTHOUGH
IT APPEARS THAT SUCH A RESULT COULD NOT FOLLOW HERE, WE THINK IT BETTER
PRACTICE TO DISMISS THE SUIT FOR WANT OF THE JURISDICTIONAL AMOUNT AS
TO ALL APPELLEES EXCEPT PAUL GRAY, INC. SEE RICH V. LAMBERT, 12 HOW. 
347; EX PARTE BALTIMORE & OHIO RAILROAD CO., 106 U.S. 5; HASSALL V.
WILCOX, 115 U.S. 598.  CF. GROSJEAN V. AMERICAN PRESS CO., 297 U.S.
233. 

DISCRIMINATION. 

APART FROM APPELLEES' INSISTENCE THAT THE FEES ARE AN
UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE BECAUSE EXCESSIVE, THE
SUBSTANCE OF THEIR CONTENTION IS THAT THE STATUTE DISCRIMINATES BETWEEN
AUTOMOBILES TRANSPORTED INTO THE STATE SINGLY AND THOSE SIMILARLY
TRANSPORTED INTRAZONE, FOR WHICH NO FEE IS CHARGED, AND ALSO THAT THE
STATUTE DISCRIMINATES BETWEEN THOSE CARS DRIVEN BY APPELLEES IN
CARAVANS AND THOSE SIMILARLY DRIVEN WHOLLY WITHIN EITHER OF THE STATE
ZONES, FOR WHICH NO FEE IS CHARGED. 

IN MORF V. BINGAMAN, 298 U.S. 407, WE HAD OCCASION TO CONSIDER THE
VALIDITY OF A FEE OR TAX EXACTED BY NEW MEXICO FOR THE TRANSPORTATION
INTO THE STATE OF ANY MOTOR VEHICLE FOR THE PURPOSE OF SALE WITHIN OR
WITHOUT THE STATE.  IT THERE APPEARED THAT THE PLAINTIFF, WITH OTHERS,
WAS ENGAGED IN TRANSPORTING MOTOR CARS ON THEIR OWN WHEELS IN CARAVANS
ACROSS THE STATE OF NEW MEXICO FOR THE PURPOSE OF SALE, AND THAT THEIR
TRANSPORTATION FOR THAT PURPOSE HAD RESULTED IN THE CREATION OF A
DISTINCT CLASS OF MOTOR VEHICLE TRAFFIC OF CONSIDERABLE MAGNITUDE.  IN
THE COURSE OF THIS BUSINESS SECOND-HAND CARS PURCHASED AT POINTS IN THE
EAST ARE ASSEMBLED IN CARAVANS, WHICH ARE DRIVEN AS SUCH TO THE POINT
OF SALE IN CALIFORNIA.  LARGE NUMBERS OF THE CARS ARE COUPLED IN TWOS,
EACH TWO IN CHARGE OF A SINGLE DRIVER WHO OPERATES THE FORWARD CAR AND
CONTROLS THE MOVEMENT OF BOTH BY THE USE OF THE MECHANISM AND BRAKES OF
ONE.  THE DRIVERS OF CARAVANS, EXCEPT TWO OR THREE REGULARLY ENGAGED,
ARE CASUALLY EMPLOYED AND SERVE WITHOUT PAY OR FOR SMALL COMPENSATION
IN ORDER TO SECURE TRANSPORTATION TO THE POINT OF DESTINATION.  WE
SAID, PAGE 411-412: 

"THE LEGISLATURE MAY READILY HAVE CONCLUDED, AS DID THE TRIAL COURT,
THAT THE DRIVERS HAVE LITTLE INTEREST IN THE BUSINESS OR THE VEHICLES
THEY DRIVE AND LESS REGARD THAN DRIVERS OF STATE LICENSED CARS FOR THE
SAFETY AND CONVENIENCE OF OTHERS USING THE HIGHWAYS.  THE EVIDENCE
SUPPORTS THE INFERENCE THAT CARS THUS COUPLED AND CONTROLLED FREQUENTLY
SKID, ESPECIALLY ON CURVES, CAUSING MORE THAN THE USUAL WEAR AND TEAR
ON THE ROAD; THAT THIS AND OTHER INCREASED DIFFICULTIES IN THE
OPERATION OF THE COUPLED CARS, AND THE LENGTH OF THE CARAVANS, INCREASE
THE INCONVENIENCE AND HAZARD TO PASSING TRAFFIC.  ...  THERE IS AMPLE
SUPPORT FOR A LEGISLATIVE DETERMINATION THAT THE PECULIAR CHARACTER OF
THIS TRAFFIC INVOLVES A SPECIAL TYPE OF USE OF THE HIGHWAYS, WITH
ENHANCED WEAR AND TEAR ON THE ROADS AND AUGMENTED HAZARDS TO OTHER
TRAFFIC, WHICH IMPOSES ON THE STATE A HEAVIER FINANCIAL BURDEN FOR
HIGHWAY MAINTENANCE AND POLICING THAN DO OTHER TYPES OF MOTOR CAR
TRAFFIC.  WE CANNOT SAY THAT THESE CIRCUMSTANCES DO NOT AFFORD AN
ADEQUATE BASIS FOR SPECIAL LICENSING AND TAXING PROVISIONS, WHOSE ONLY
EFFECT, EVEN WHEN APPLIED TO INTERSTATE TRAFFIC, IS TO ENABLE THE STATE
TO POLICE IT, AND TO IMPOSE UPON IT A REASONABLE CHARGE, TO DEFRAY THE
BURDEN OF THIS STATE EXPENSE, AND FOR THE PRIVILEGE OF USING THE STATE
HIGHWAYS." 

THE STATE OF CALIFORNIA HAS FOUND IT EXPEDIENT TO ADOPT LICENSING
PROVISIONS FOR THIS CLASS OF TRAFFIC AND TO EXACT THE FEES SPECIFIED IN
THE STATUTE FOR THE USE OF ITS HIGHWAYS AND THE EXPENSE OF POLICING. 
THAT THIS PECULIAR TYPE OF TRAFFIC OCCURS IN LARGE VOLUME BETWEEN
EASTERN POINTS AND POINTS IN CALIFORNIA, AND THAT THERE IS BASIS FOR
THE LEGISLATIVE JUDGMENT THAT THE TRAFFIC IMPOSES SPECIAL BURDENS ON
THE USE OF THE STATE HIGHWAYS FOR WHICH A SPECIAL CHARGE MAY BE MADE,
ARE ABUNDANTLY SUPPORTED BY THE RECORD.  THE PARTIES HAVE STIPULATED
THAT FIFTEEN THOUSAND AUTOMOBILES ARE BROUGHT INTO THE STATE FOR SALE
ANNUALLY.  OF THESE, FROM 80 TO 90 PER CENT. COME IN CARAVANS OR
CONVOYS, AND OF THE CARS SO MOVING ONE-HALF ARE COUPLED TOGETHER IN
TWOS.  IT FURTHER APPEARS BY STIPULATION THAT THE CARAVANS OR CONVOYS
ARE MADE UP OF FROM NINETEEN TO TWENTY-FIVE CARS.    THERE IS MUCH
EVIDENCE IN THE RECORD INDICATING THAT IT IS THE LONG HAUL TRAFFIC IN
CARS FOR SALE IN CALIFORNIA WHICH TENDS TO PRODUCE THE MOVEMENT IN
LARGE CARAVANS OR CONVOYS IN ORDER TO SAVE EXPENSE OF TRANSPORTATION,
AND WHICH IN TURN TENDS TO IMPOSE SPECIAL BURDENS ON THE STATE IN
CONNECTION WITH THE USE OF ITS HIGHWAYS, CALLING FOR THE IMPOSITION OF
REGULATIONS AND FEES DIFFERENT FROM THOSE APPLIED TO OTHER TYPES OF
MOTOR CAR MOVEMENT.  WITHOUT REPEATING WHAT WAS SAID MORE AT LENGTH OF
LIKE TRAFFIC IN MORF V. BINGAMAN, SUPRA, THE EVIDENCE IN THE PRESENT
CASE SHOWS THAT COUPLED CARS, UNDER CONTROL OF A SINGLE DRIVER, SUBJECT
THE HIGHWAYS TO INCREASED WEAR AND TEAR BECAUSE OF THEIR TENDENCY TO
SKID AND SWAY ON CURVES AND IN PASSING OTHER TRAFFIC, AND THAT THE
LENGTH OF THE CARAVANS AND THE INEFFICIENCY AND IRRESPONSIBILITY OF THE
DRIVERS, CASUALLY EMPLOYED, INCREASE TRAFFIC CONGESTION AND THE
INCONVENIENCES AND HAZARDS OF AUTOMOBILE TRAFFIC.  THESE CIRCUMSTANCES
HAVE CAUSED THE STATE TO MAKE INCREASED PROVISION FOR THE POLICING OF
THE TRAFFIC.  IT IS TRUE THAT THE DISTRICT COURT FOUND THAT THE
PRACTICE OF CARAVANING CREATES NO ADDITIONAL TRAFFIC HAZARD, NOR ANY
UNDUE WEAR AND TEAR ON THE HIGHWAYS.  BUT IN THIS WE THINK THAT ITS
DETERMINATION WAS NOT ONLY CONTRARY TO THE EVIDENCE, BUT WENT BEYOND
THE JUDICIAL PROVINCE. 

IT IS NO LONGER OPEN TO QUESTION THAT THE STATES HAVE CONSTITUTIONAL
AUTHORITY TO EXACT REASONABLE FEES FOR THE USE OF THEIR HIGHWAYS BY
VEHICLES MOVING INTERSTATE, HENDRICK V. MARYLAND, 235 U.S. 610; KANE V.
NEW JERSEY, 242 U.S. 160; CLARK V. POOR, 274 U.S. 554; SPROUT V. SOUTH
BEND, 277 U.S. 163; MORF V. BINGAMAN, SUPRA; DIXIE OHIO EXPRESS CO. V.
STATE REVENUE COMM'N, ANTE, P. 72, AND THAT FOR THAT PURPOSE THEY MAY
CLASSIFY THE VEHICLES ACCORDING TO THE CHARACTER OF THE TRAFFIC AND THE
BURDEN IT IMPOSES ON THE STATE BY THAT USE, AND CHARGE FOR THE USE A
FEE NOT SHOWN TO BE UNREASONABLE OR EXCESSIVE.  CONTINENTAL BAKING CO.
V. WOODRING, 286 U.S. 352, 370-371; HICKLIN V. CONEY, 290 U.S. 169;
MORF V. BINGAMAN, SUPRA, 413; DIXIE OHIO EXPRESS CO. V. STATE REVENUE
COMM'N, SUPRA. 

THE CLASSIFICATION OF THE TRAFFIC FOR THE PURPOSES OF REGULATION AND
FIXING FEES IS A LEGISLATIVE, NOT A JUDICIAL, FUNCTION.  ITS MERITS ARE
NOT TO BE WEIGHED IN THE JUDICIAL BALANCE AND THE CLASSIFICATION
REJECTED MERELY BECAUSE THE WEIGHT OF THE EVIDENCE IN COURT APPEARS TO
FAVOR A DIFFERENT STANDARD.  CF. WORCESTER COUNTY TRUST CO. V. RILEY,
302 U.S. 292, 299.  THE DETERMINATION OF THE LEGISLATURE IS PRESUMED TO
BE SUPPORTED BY FACTS KNOWN TO IT, UNLESS FACTS JUDICIALLY KNOWN OR
PROVED PRECLUDE THAT POSSIBILITY.  STANDARD OIL CO. V. MARYSVILLE, 279
U.S. 582, 584; BORDEN'S FARM PRODUCTS CO. V. TEN EYCK, 297 U.S. 251,
263; S.C. 11 F.SUPP.  599, 600; SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROS., 303 U.S. 177, 191-192; UNITED STATES V. CAROLENE
PRODUCTS CO., 304 U.S. 144, 153-154.  HENCE, IN PASSING ON THE VALIDITY
OF THE PRESENT CLASSIFICATION, IT IS NOT THE PROVINCE OF A COURT TO
HEAR AND EXAMINE EVIDENCE FOR THE PURPOSE OF DECIDING AGAIN A QUESTION
WHICH THE LEGISLATURE HAS ALREADY DECIDED.  ITS FUNCTION IS ONLY TO
DETERMINE WHETHER IT IS POSSIBLE TO SAY THAT THE LEGISLATIVE DECISION
IS WITHOUT RATIONAL BASIS.  THIS IS EQUALLY THE CASE WHERE THE
CLASSIFICATION, WHICH IS ONE WHICH THE LEGISLATURE WAS COMPETENT TO
MAKE, IS APPLIED TO VEHICLES USING THE STATE HIGHWAYS IN INTERSTATE
COMMERCE.  SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, 187
ET SEQ. THE LEGISLATURE MUST BE ASSUMED TO HAVE ACTED ON INFORMATION
AVAILABLE TO COURTS, AND WHERE, AS HERE, THE EVIDENCE, LIKE THAT
DISCUSSED IN MORF V. BINGAMAN, SUPRA, SHOWS THAT IT IS AT LEAST A
DEBATABLE QUESTION WHETHER THE TRAFFIC IN CARAVANS INVOLVES SPECIAL
WEAR AND TEAR OF THE HIGHWAYS AND INCREASED TRAFFIC HAZARDS REQUIRING
SPECIAL POLICE CONTROL, DECISION IS FOR THE LEGISLATURE AND NOT THE
COURTS.  STANDARD OIL CO. V. MARYSVILLE, SUPRA; SOUTH CAROLINA HIGHWAY
DEPT. V. BARNWELL BROS., SUPRA. 

APPELLEE PAUL GRAY, INC., SO FAR AS APPEARS, CARAVANS ITS CARS FOR
SALE IN CALIFORNIA FROM DETROIT, MICHIGAN, AND ST. JOSEPH, MISSOURI. 
ITS CARS, LIKE THOSE OF THE OTHER APPELLEES, MOVE IN CARAVANS OF FROM
NINETEEN TO TWENTY-FIVE CARS.  IT DOES NOT APPEAR, NOR IS IT CONTENDED,
THAT THIS APPELLEE TRANSPORTS ANY CARS SINGLY.  FROM WHAT HAS BEEN SAID
IT IS EVIDENT, AS WAS DECIDED IN MORF V. BINGAMAN, SUPRA, THAT CARS
MOVING IN CARAVANS OF THE TYPE DESCRIBED CONSTITUTE A SPECIAL CLASS OF
TRAFFIC WHICH MAY BE TAXED OR CHARGED FOR DIFFERENTLY FROM OTHER
CLASSES WITHOUT INFRINGING THE EQUAL PROTECTION CLAUSE. 

THE ARGUMENT THAT THE STATUTE DENIES EQUAL PROTECTION TO APPELLEES
BECAUSE IT EXACTS FEES FOR CARS TRANSPORTED INTO THE STATE FOR SALE
SINGLY BUT NONE FOR CARS WHICH MOVE SIMILARLY INTRAZONE OR FOR THOSE
WHICH ENTER THE STATE NOT FOR THE PURPOSES OF SALE, IGNORES THE ACTUAL
CIRCUMSTANCES IN WHICH THE STATUTE IS APPLIED TO APPELLEES, AS SHOWN BY
THE RECORD, AND SEEKS TO TAKE ADVANTAGE OF AN ALLEGED DISCRIMINATION
WHICH, IF IT EXISTS, DOES APPELLEES NO HARM.  THE FOURTEENTH AMENDMENT
DOES NOT REQUIRE CLASSIFICATION FOR FEES, MORE THAN FOR TAXATION, TO
FOLLOW ANY PARTICULAR FORM OF WORDS.  IF THAT ADOPTED RESULTS IN THE
APPLICATION OF THE EXACTION TO A CLASS WHICH MAY BE SEPARATELY CHARGED
WITHOUT A DENIAL OF EQUAL PROTECTION, THOSE WITHIN THE CLASS CANNOT
COMPLAIN THAT IT MIGHT HAVE BEEN MORE APTLY DEFINED OR THAT THE STATUTE
MAY TAX OTHERS WHO ARE NOT WITHIN THE CLASS.  SEE PATSONE V.
PENNSYLVANIA, 232 U.S. 138, 144; SILVER V. SILVER, 280 U.S. 117, 123;
MORF V. BINGAMAN, SUPRA, 413. 

IT IS THE PRACTICE OF TRANSPORTING AUTOMOBILES FOR LONG DISTANCES
OVER THE HIGHWAY FOR PURPOSE OF SALE WHICH HAS GIVEN RISE TO THE
PRACTICE OF MOVING THEM IN CARAVANS.  THE USE OF AUTOMOBILES FOR OTHER
PURPOSES, OR FOR PLEASURE, DOES NOT HAVE THAT RESULT.  THE
CLASSIFICATION OF THE STATUTE, IN ITS PRACTICAL APPLICATION, EMBRACES
AND IS CONSTITUTIONALLY APPLICABLE TO CARS MOVING IN CARAVANS, THE
CLASS OF TRAFFIC IN WHICH APPELLEE PAUL GRAY, INC., ENGAGES AND ON
WHICH IT IS ALONE TAXED.  ONE FORM OF DISCRIMINATION OF WHICH IT
COMPLAINS IS THAT FEES ARE EXACTED FOR CARS DRIVEN INTO THE STATE
SINGLY FOR SALE BUT NOT FOR THOSE DRIVEN SINGLY TO MARKET INTRAZONE OR
SINGLY FROM WITHOUT THE STATE FOR OTHER PURPOSES.  APPELLEE DOES NOT
SHOW THAT IT BELONGS TO EITHER CLASS, AND SO FAR AS THE TRAFFIC IN
WHICH IT PARTICIPATES IS PROPERLY TAXED, IT CANNOT COMPLAIN OF THE
IMPOSITION OF THE CHARGE ON A BUSINESS WHICH IT DOES NOT DO. 

SO FAR AS APPELLEES COMPLAIN THAT NO FEE IS EXACTED FOR CARS WHICH
MOVE FOR SALE INTRAZONE IN CARAVANS, DIFFERENT CONSIDERATIONS APPLY. 
AS WE HAVE SAID, IT IS THE LONG HAUL OF CARS FOR SALE WHICH HAS
PRODUCED MOTOR VEHICLE CARAVANS AND HAS MADE THEM A SPECIAL CLASS FOR
THE PURPOSES OF REGULATION AND IMPOSITION OF FEES.  IT WAS FOR THE
LEGISLATURE TO CONSIDER AND DECIDE WHETHER THE ACTUAL CONDITIONS WHICH
PREVAIL IN THE STATE, AFFECTING MOVEMENT OF CARS FOR SALE, ELIMINATE OR
SO REDUCE THE BURDEN OF THE CARAVAN TRAFFIC ON THE HIGHWAYS AS TO CALL
FOR A DIFFERENT CLASSIFICATION OF THE SHORT HAUL TRAFFIC FOR THE
PURPOSES OF REGULATION AND FEES.  THE LEGISLATURE HAVING MADE ITS
CLASSIFICATION BY THE ESTABLISHMENT OF ZONES, IN THE LIGHT OF SPECIAL
CONDITIONS IN THE STATE, COURTS ARE NOT FREE TO SET ASIDE ITS
DETERMINATION UNLESS THEY CAN SAY THAT IT IS WITHOUT ANY SUBSTANTIAL
BASIS.  CARLEY & HAMILTON V. SNOOK, 281 U.S. 66, 73; CONTINENTAL BAKING
CO. V. WOODRING, SUPRA; SPROLES V. BINFORD, 286 U.S. 374; HICKLIN V.
CONEY, SUPRA; AERO MAYFLOWER TRANSIT CO. V. PUBLIC SERVICE COMM'N, 295
U.S. 285. 

THE TRIAL COURT FOUND THAT CARS ARE OFTEN MOVED IN CONVOYS IN ZONE 1,
WHICH INCLUDES THE METROPOLITAN AREA OF LOS ANGELES, AND IT THOUGHT
THIS SUFFICIENT TO ESTABLISH AN UNLAWFUL DISCRIMINATION WITHOUT
CONSIDERATION OF THE OTHER CONDITIONS AFFECTING THE INTRAZONE TRAFFIC. 
THE EVIDENCE ESTABLISHES, BEYOND ANY REASONABLE DOUBT, THAT THE
MOVEMENT INTRAZONE OF CARS FOR SALE IN CONVOYS SIMILAR TO THAT OF
APPELLEES IS NEGLIGIBLE AND THAT THE PRINCIPAL SOURCES OF CARS FOR SALE
MOVING INTRAZONE ARE THE ASSEMBLY PLANTS OF AUTOMOBILE MANUFACTURERS
LOCATED IN OR NEAR THE METROPOLITAN AREAS OF LOS ANGELES AND SAN
FRANCISCO.  BEING NEW CARS, THE BULK OF THEM, SHIPPED INTERSTATE OR TO
DISTANT POINTS INTRASTATE, MOVE BY RAIL, WATER, OR TRUCK.  MOST OF
THOSE WHICH MOVE ON THEIR OWN WHEELS ARE DRIVEN RELATIVELY SHORT
DISTANCES, SEVENTY-FIVE MILES OR LESS, IN THE METROPOLITAN AREA OVER
HIGHWAYS OF MORE THAN TWO LANES, AS DISTINGUISHED FROM CARAVANS COMING
FROM WITHOUT THE STATE, WHICH MOVE FOR LONG DISTANCES OVER TWOLANE
HIGHWAYS IN MOUNTAIN DISTRICTS.  THE PROPORTION DRIVEN SINGLY DOES NOT
APPEAR.  SUCH CONVOYS OR CARAVANS AS THERE ARE USUALLY CONSIST OF TWO
OR THREE CARS.  THE EVIDENCE DISCLOSES NO CASE OF MORE THAN FOUR. 
COUPLING IS NEGLIGIBLE.  EACH CAR IS IN CHARGE OF A REGULARLY EMPLOYED
AND LICENSED DRIVER.  THE INTRAZONE MOVEMENT IS SUBJECT TO OTHER
LICENSING AND TAXING PROVISIONS OF THE STATE LAW, AND NO SHOWING IS
MADE THAT THE DIFFERENCES IN FEES OR TAXES EXACTED FROM THE TWO CLASSES
OF TRAFFIC DO NOT BEAR A FAIR RELATIONSHIP TO THE DIFFERENCES IN THE
BURDEN OF THE TRAFFIC FOR WHICH THE STATE MUST PROVIDE. 

THE LEGISLATURE COULD REASONABLY HAVE CONCLUDED THAT THE WEAR AND
TEAR AND INJURY TO THE HIGHWAYS FROM DRIVING COUPLED CARS INTRAZONE WAS
NEGLIGIBLE, AND THAT THE RELATIVELY SHORT DISTANCES WHICH CARS ARE
DRIVEN IN TWOS OR THREES, THE CHARACTER OF THE HIGHWAYS USED, AND THE
DIFFERENCE IN THE CLASS OF DRIVERS, TAKEN TOGETHER, ELIMINATE FROM THE
INTRAZONE TRAFFIC OR SO SUBSTANTIALLY REDUCE THE BURDEN IMPOSED BY
TRAFFIC LIKE THAT OF APPELLEES MOVING INTERSTATE OR INTERZONE AS TO
REQUIRE, IN FAIRNESS, A DIFFERENT CLASSIFICATION FOR THE PURPOSE OF
FEES CHARGED FOR THE USE OF THE HIGHWAYS.  WE CANNOT SAY THAT THAT
CONCLUSION IS WITHOUT SUPPORT OR INFRINGES THE PRINCIPLES WHICH WE HAVE
REPEATEDLY RECOGNIZED AS DEFINING THE POWER OF THE STATES, IN THE
ABSENCE OF CONGRESSIONAL ACTION, TO CLASSIFY VEHICLES OR TRAFFIC FOR
THE PURPOSES OF REGULATING USE OF THE HIGHWAYS BY VEHICLES MOVING
INTERSTATE.  IF THE CLASSIFICATION WITH RESPECT TO A MATTER REMAINING
WITHIN STATE CONTROL, DESPITE THE COMMERCE CLAUSE, IS OTHERWISE VALID,
IT IS NOT ANY THE LESS SO BECAUSE IT AFFECTS INTERSTATE COMMERCE.  SEE
SOUTH CAROLINA HIGHWAY DEPT. V. BARNWELL BROS., SUPRA, 191-192, AND
CASES CITED.  AS THE STATE HAS AUTHORITY TO CHARGE A REASONABLE FEE FOR
THE USE OF ITS HIGHWAYS, AND AS THE CLASSIFICATION OF THE TRAFFIC WHICH
THE STATE HAS MADE FOR THE PURPOSE OF FIXING THE FEES IS VALID, THE
ONLY REMAINING QUESTION IS WHETHER THE FEES WHICH IT HAS FIXED MUST BE
DEEMED EXCESSIVE. 

REASONABLENESS OF THE FEES. 

IN INGELS V. MORF, SUPRA, THE $15 FEE CHARGED UNDER THE CALIFORNIA
ACT OF 1935 FOR DRIVING A CAR INTO THE STATE FOR PURPOSE OF SALE WAS
CONTESTED AS EXCESSIVE.  THERE THE STATUTE DECLARED THAT THE FEE WAS
"INTENDED TO REIMBURSE THE STATE TREASURY FOR THE ADDED EXPENSE WHICH
THE STATE MAY INCUR IN THE ADMINISTRATION AND ENFORCEMENT OF THIS ACT,
AND THE ADDED EXPENSE OF POLICING THE HIGHWAYS OVER WHICH SUCH
CARAVANING MAY BE CONDUCTED,  ...  " AND THE AUTOMOBILE OWNER ASSUMED
AND BY PROOF SUSTAINED THE BURDEN OF SHOWING THAT THE CHARGE MADE FOR
THE PRECISE PURPOSES DEFINED BY THE STATUTE WAS EXCESSIVE.  WE ACCEPTED
THE EVIDENCE AS ESTABLISHING THAT THE COST OF ISSUING CARAVAN PERMITS
WAS ABOUT $5 PER CAR AND AS SUPPORTING THE FINDING OF THE TRIAL COURT
THAT THE COST OF POLICING DID NOT EXCEED $5 A CAR.  AND WE CONCLUDED
THAT THE TOTAL COST OF ADMINISTRATION AND POLICING WAS SUBSTANTIALLY
LESS THAN THE $15 FEE CHARGED. 

HERE A FEE OF $7.50 IS COLLECTED FOR ADMINISTRATION AND ENFORCEMENT
OF THE ACT AND A FEE OF LIKE AMOUNT IS CHARGED FOR THE USE OF THE
HIGHWAYS.  APPELLEES HAVE OFFERED NO PROOF THAT EITHER OF THE FEES IS
TOO LARGE, ALTHOUGH THE BURDEN RESTED UPON THEM TO SHOW THAT THE FEES
WERE EXCESSIVE FOR THE DECLARED PURPOSES.  HENDRICK V. MARYLAND, SUPRA,
624; INTERSTATE BUSSES CORP. V. BLODGETT, 276 U.S. 245, 251; MORF.  V.
BINGAMAN, SUPRA, 410; INGELS V. MORF, SUPRA, 296.  GREAT NORTHERN RY.
CO. V. WASHINGTON, 300 U.S. 154, IS NOT TO THE CONTRARY. 

APPELLANTS, WITHOUT ABANDONING THEIR POSITION THAT THE BURDEN OF
PROOF RESTS ON APPELLEES, OFFERED EVIDENCE TO SHOW THAT THE COSTS OF
ADMINISTRATION AND POLICING PROVED IN INGELS V. MORF, SUPRA, WERE
INCOMPLETE.  DUE TO THE NATURE OF THE CASE MUCH OF THE PROOF IS INEXACT
AND SPECULATIVE.  BUT THERE IS EVIDENCE THAT THIRTY-NINE OFFICERS
DEVOTED PART OR ALL OF THEIR TIME TO ENFORCING THE 1937 ACT.  THE
EXPENSE OF OPERATING THEIR AUTOMOBILES AND MOTORCYCLES IS CONSIDERABLE;
AN INCREASED BURDEN IS IMPOSED UPON THE PERSONNEL OF THE BORDER POLICE
STATIONS; AND SOME INCREASE IN CLERICAL FORCE AND IN EXPENDITURES FOR
STATIONERY AND MISCELLANEOUS ITEMS HAS BEEN REQUIRED.  INVESTIGATIONS
OF ATTEMPTED EVASIONS INCREASE THE UNIT COST ABOVE THAT OF OTHER TYPES
OF TRAFFIC.  THE TOTAL OF THESE ADDED EXPENSES, AS COMPUTED BY
APPELLANTS AT ABOUT $133,000 ANNUALLY, CERTAINLY APPROXIMATES THE
AMOUNT OF THE REVENUE DERIVED FROM THE FEES.  THE AGGREGATE OF THE FEES
COLLECTED DURING ELEVEN MONTHS FOR 14,000 CARS AT $7.50 EACH IS
$105,000.  APPELLEES DO NOTHING TO CHALLENGE THIS EVIDENCE, AND THEY
POINT TO NO SPECIFIC ERRORS IN THE ESTIMATES OR COMPUTATION UPON WHICH
APPELLANTS CALCULATE THE COSTS.    THE STATE IS NOT REQUIRED TO COMPUTE
WITH MATHEMATICAL PRECISION THE COST TO IT OF THE SERVICES NECESSITATED
BY THE CARAVAN TRAFFIC.  IF THE FEES CHARGED DO NOT APPEAR TO BE
MANIFESTLY DISPROPORTIONATE TO THE SERVICES RENDERED, WE CANNOT SAY
FROM OUR OWN KNOWLEDGE OR EXPERIENCE THAT THEY ARE EXCESSIVE.  KANE V.
NEW JERSEY, SUPRA, 168; INTERSTATE BUSSES CORP. V. BLODGETT, SUPRA,
251, 252; MORF V. BINGAMAN, SUPRA; DIXIE OHIO EXPRESS CO. V. STATE
REVENUE COMM'N, SUPRA; SEE PATAPSCO GUANO CO. V. NORTH CAROLINA, 171
U.S. 345, 354; MCLEAN & CO. V. DENVER & RIO GRANDE R. CO., 203 U.S. 38,
55; INTERSTATE TRANSIT, INC. V. LINDSEY, 283 U.S. 183, 186.  APPELLEES
HAVE FAILED TO SUSTAIN THE BURDEN OF PROOF THAT EITHER OF THE FEES IS
EXCESSIVE FOR THE PURPOSE FOR WHICH IT IS COLLECTED. 

THE TRIAL COURT SEEMS TO HAVE THOUGHT AS APPELLEES ARGUE, THAT
UNREASONABLENESS OF THE FEES WAS ESTABLISHED BY PROOF THAT THE SAME
FEES ARE NOT IMPOSED ON OTHER CLASSES OF TRAFFIC.  BUT SINCE, AS WE
HAVE SEEN, THERE IS BASIS FOR THE CLASSIFICATION OF THE TRAFFIC, THERE
IS BASIS FOR A DIFFERENCE IN FEES CHARGED THE DIFFERENT CLASSES. 
HENDRICK V. MARYLAND, SUPRA; INTERSTATE BUSSES CORP. V. BLODGETT,
SUPRA.  APPELLEES HAVE LAID NO FOUNDATION FOR ANY CONTENTION THAT THERE
ARE NOT COMPENSATING DIFFERENCES IN THE TRAFFIC COMPARABLE TO THE
DIFFERENCE IN FEES, OR FOR IMPEACHING THE LEGISLATIVE JUDGMENT THAT
THOSE SPECIFIED ARE FAIRLY RELATED TO THE TRAFFIC TO WHICH THEY ARE
APPLIED. 

THE CAUSE WILL BE REVERSED WITH INSTRUCTIONS TO THE DISTRICT COURT TO
DISMISS THE CASE AS TO APPELLEE PAUL GRAY, INC., ON THE MERITS, AND TO
DISMISS AS TO THE OTHER APPELLEES FOR WANT OF JURISDICTION.  REVERSED. 

FN1  THE SUIT WAS BEGUN JULY 14, 1937, BEFORE THE ENACTMENT OF THE
AMENDMENT TO SEC. 24 OF THE JUDICIAL CODE; ACT AUGUST 21, 1937, C. 726,
50 STAT. 738, PROVIDING THAT "NO DISTRICT COURT SHALL HAVE JURISDICTION
OF ANY SUIT TO ENJOIN, SUSPEND, OR RESTRAIN THE ASSESSMENT, LEVY, OR
COLLECTION OF ANY TAX IMPOSED BY OR PURSUANT TO THE LAWS OF ANY STATE
WHERE A PLAIN, SPEEDY, AND EFFICIENT REMEDY MAY BE HAD AT LAW OR IN
EQUITY IN THE COURTS OF SUCH STATE."  SECTION 2 OF THE ACT EXCLUDES
FROM ITS OPERATION SUITS BEGUN IN THE DISTRICT COURTS BEFORE ITS
ENACTMENT. 

FN2  A DIFFERENT QUESTION IS INVOLVED IN THE CASE OF A CREDITOR'S
BILL TO LIQUIDATE AN INSOLVENT CORPORATION FOR THE BENEFIT OF ALL
CREDITORS.  THERE HIS CLAIM MUST EXCEED THE JURISDICTIONAL AMOUNT. 
LION BONDING CO. V. KARATZ, 262 U.S. 77.  BUT CREDITORS WHOSE CLAIMS
ARE LESS MAY BE MADE PARTIES BECAUSE OF THEIR INTEREST IN A FUND
BROUGHT WITHIN THE JURISDICTION OF THE COURT.  GIBSON V. SHUFELDT, 122
U.S. 27; HANDLEY V. STUTZ, 137 U.S. 366; NATIONAL BANK OF COMMERCE V.
ALLEN, 90 F. 545, 555-556. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE CASE SHOULD BE DISMISSED
FOR WANT OF JURISDICTION AS TO ALL THE APPELLEES. 
..END :























LABOR BOARD V. FAINBLATT, 306 U.S. 601 


NO. 514.  ARGUED MARCH 8, 9, 1939.  - DECIDED APRIL 17, 1939.  - 98 F.2D
615, REVERSED. 


1.  THE NATIONAL LABOR RELATIONS ACT IS APPLICABLE TO MANUFACTURERS
WHOSE PRODUCT IS SHIPPED IN INTERSTATE COMMERCE UNDER CIRCUMSTANCES
SUCH THAT CESSATION OF WORK BY THEIR EMPLOYEES BY REASON OF STRIKES OR
LABOR DISPUTES WOULD RESULT IN CESSATION OF THE MOVEMENT OF THE
MANUFACTURED PRODUCT IN INTERSTATE COMMERCE.  CONSEQUENTLY THE ACT IS
APPLICABLE TO EMPLOYERS, NOT THEMSELVES ENGAGED IN INTERSTATE COMMERCE,
WHO ARE ENGAGED IN A RELATIVELY SMALL BUSINESS OF PROCESSING MATERIALS
WHICH ARE REGULARLY TRANSMITTED TO THEM BY THE OWNERS THROUGH THE
CHANNELS OF INTERSTATE COMMERCE AND WHICH, AFTER THE PROCESSING, ARE
RETURNED TO THE OWNER'S AGENT AT THE FACTORY, AND BY HIM SHIPPED TO
INTERSTATE DESTINATIONS.  P. 604. 

2.  WHETHER THE MATERIALS ARE OWNED BY THE PROCESSOR AND WHETHER THEY
ARE SHIPPED DIRECTLY TO HIM OR TO REPRESENTATIVES OF THE OWNERS AT THE
PROCESSOR'S FACTORY, ARE IMMATERIAL.  THE SHIPMENTS TO AND FROM THE
FACTORY ARE NONE THE LESS INTERSTATE COMMERCE BECAUSE THE
TRANSPORTATION DID NOT BEGIN OR END WITH THE TRANSFER OF TITLE OF THE
MERCHANDISE TRANSPORTED.  P. 605. 

3.  THE POWER OF CONGRESS TO REGULATE INTERSTATE COMMERCE IS PLENARY
AND EXTENDS TO ALL SUCH COMMERCE, BE IT GREAT OR SMALL.  THE AMOUNT OF
COMMERCE REGULATED IS OF SPECIAL SIGNIFICANCE ONLY TO THE EXTENT THAT
CONGRESS MAY BE TAKEN TO HAVE EXCLUDED COMMERCE OF SMALL VOLUME FROM
THE OPERATION OF ITS REGULATORY MEASURE BY EXPRESS PROVISION OR FAIR
IMPLICATION.  P. 606. 

4.  IN THE NATIONAL LABOR RELATIONS ACT CONGRESS HAS SET NO
RESTRICTIONS UPON THE JURISDICTION OF THE BOARD TO BE DETERMINED OR
FIXED EXCLUSIVELY BY REFERENCE TO THE VOLUME OF INTERSTATE COMMERCE
INVOLVED.  P. 606. 

NATIONAL LABOR RELATIONS BOARD V. FAINBLATT ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 305 U.S. 594, TO REVIEW A JUDGMENT DENYING A PETITION OF
THE NATIONAL LABOR RELATIONS BOARD FOR ENFORCEMENT OF ONE OF ITS
ORDERS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS PETITION RAISES THE QUESTION WHETHER THE NATIONAL LABOR
RELATIONS ACT IS APPLICABLE TO EMPLOYERS, NOT THEMSELVES ENGAGED IN
INTERSTATE COMMERCE, WHO ARE ENGAGED IN A RELATIVELY SMALL BUSINESS OF
PROCESSING MATERIALS WHICH ARE TRANSMITTED TO THEM BY THE OWNERS
THROUGH THE CHANNELS OF INTERSTATE COMMERCE AND WHICH AFTER PROCESSING
ARE DISTRIBUTED THROUGH THOSE CHANNELS. 

PURSUANT TO SEC. 10(B) OF THE NATIONAL LABOR RELATIONS ACT, C. 372,
49 STAT. 449; 29 U.S.C. SEC. 151 ET SEQ., THE NATIONAL LABOR RELATIONS
BOARD ISSUED ITS COMPLAINT CHARGING RESPONDENTS WITH UNFAIR LABOR
PRACTICES IN VIOLATION OF SEC. 8(1), (3), (5) AND SEC. 2(6), (7) OF THE
ACT.  AFTER A HEARING, WHICH RESULTED IN A DECISION AND ORDER OF THE
BOARD, A SUPPLEMENTAL HEARING WAS HELD PURSUANT TO ORDER OF THE COURT
OF APPEALS FOR THE THIRD CIRCUIT, WHICH RESULTED IN A SUPPLEMENTAL
DECISION AND AN ORDER REAFFIRMING THE BOARD'S ORIGINAL FINDINGS AND
CONCLUSIONS OF LAW AND MODIFYING THE ORIGINAL ORDER IN ONE RESPECT NOT
NOW MATERIAL. 

THE FACTS, AS FOUND BY THE BOARD, ARE THAT RESPONDENTS, UNDER THE
NAME OF SOMERSET MANUFACTURING COMPANY, ARE ENGAGED AT SOMERVILLE, NEW
JERSEY, IN THE BUSINESS OF PROCESSING MATERIALS INTO VARIOUS TYPES OF
WOMEN'S SPORTS GARMENTS.  THEY OPERATE WHAT IS KNOWN AS A "CONTRACT
SHOP."  THE MATERIALS ARE SUPPLIED BY AND ARE THE PROPERTY OF THE LEE
SPORTSWEAR COMPANY, A PARTNERSHIP LOCATED IN NEW YORK CITY.  THE CLOTH
FROM WHICH THE GARMENTS ARE MADE IS USUALLY CUT BY THE LEE SPORTSWEAR
COMPANY IN NEW YORK CITY AND THEN SHIPPED BY TRUCK TO RESPONDENTS'
FACTORY IN NEW JERSEY.  SOMETIMES THE RAW MATERIALS ARE SHIPPED, ON THE
ORDER OF THE LEE SPORTSWEAR COMPANY, DIRECTLY FROM THE MILLS
MANUFACTURING THEM, MANY OF WHICH ARE OUTSIDE OF NEW JERSEY.  ALL THE
MATERIALS ARE MANUFACTURED AT RESPONDENTS' NEW JERSEY FACTORY UNDER
CONTRACT.  THE FINISHED GARMENTS ARE THERE DELIVERED TO A
REPRESENTATIVE OF THE LEE SPORTSWEAR COMPANY, WHO SHIPS THEM TO THE
COMPANY IN NEW YORK CITY OR DIRECTLY TO ITS CUSTOMERS THROUGHOUT THE
UNITED STATES. 

THROUGHOUT THE YEAR THERE IS NORMALLY A CONTINUOUS DAY-BY-DAY FLOW OF
SHIPMENTS OF RAW MATERIALS TO RESPONDENTS' FACTORY FROM POINTS WITHOUT
THE STATE, AND OF FINISHED GARMENTS FROM RESPONDENTS' PLANT TO NEW YORK
CITY AND OTHER POINTS OUTSIDE OF NEW JERSEY.  DURING THE YEARS 1934 AND
1935 RESPONDENTS APPEAR TO HAVE FINISHED MORE THAN A THOUSAND DOZEN
GARMENTS EACH MONTH.  IN THE COURSE OF THE SUPPLEMENTAL HEARING IN 1937
IT APPEARED THAT RESPONDENTS HAD INCREASED THEIR WORKING FORCE FROM
SIXTY TO APPROXIMATELY TWO HUNDRED EMPLOYEES, FROM WHICH THE BOARD
INFERRED A CORRESPONDING INCREASE OF OUTPUT.  IMMEDIATELY PRECEDING A
STRIKE OF THIRTY-FOUR OF THE WORKERS IN RESPONDENTS' TAILORING
DEPARTMENT, WHICH OCCURRED IN SEPTEMBER, 1935, AND WHICH THE BOARD
FOUND TO BE INDUCED BY THE UNFAIR LABOR PRACTICES OF RESPONDENTS,
SHIPMENTS WERE ABOUT 80 PER CENT. OF THOSE FOR THE CORRESPONDING PERIOD
IN 1934.  FOLLOWING THE STRIKE, OUTPUT DECREASED BY MORE THAN ONE-HALF,
OR TO 38 PER CENT. OF THE SHIPMENTS FOR THE CORRESPONDING PERIOD IN
1934. 

THE BOARD CONCLUDED THAT RESPONDENTS' UNFAIR LABOR PRACTICES HAD LED
AND TENDED "TO LEAD TO LABOR DISPUTES BURDENING AND OBSTRUCTING
COMMERCE AND THE FREE FLOW OF COMMERCE."  ITS ORDER AS MODIFIED
DIRECTED RESPONDENTS TO DESIST FROM INTERFERING WITH THEIR EMPLOYEES'
RIGHT TO JOIN A LOCAL UNION AND FROM DISCOURAGING MEMBERSHIP IN THE
UNION BY DISCHARGING THEM OR DISCRIMINATING AGAINST THEM IN THE TERMS
OF THEIR EMPLOYMENT, AND IT DIRECTED RESPONDENTS TO REINSTATE CERTAIN
EMPLOYEES WHO HAD STRUCK BECAUSE OF THE UNFAIR LABOR PRACTICES, SOME
WITH BACK PAY. 

THE BOARD'S PETITION FOR ENFORCEMENT OF ITS ORDER WAS DENIED BY THE
COURT OF APPEALS FOR THE THIRD CIRCUIT, 98 F.2D 615, ON THE GROUND THAT
RESPONDENTS WERE NOT THEMSELVES ENGAGED IN INTERSTATE COMMERCE AND HAD
NO TITLE OR INTEREST IN THE RAW MATERIALS OR FINISHED PRODUCTS WHICH
MOVED TO AND FROM RESPONDENTS' FACTORY IN NEW JERSEY FROM AND TO POINTS
OUTSIDE THE STATE.  WE GRANTED CERTIORARI JANUARY 9, 1939, THE QUESTION
BEING ONE OF PUBLIC IMPORTANCE IN THE ADMINISTRATION OF THE NATIONAL
LABOR RELATIONS ACT. 

ONLY THE QUESTION OF THE BOARD'S JURISDICTION IS RAISED BY THE
PETITION AND IN BRIEFS AND ARGUMENT.  IT HAS BEEN SETTLED BY REPEATED
DECISIONS OF THIS COURT THAT AN EMPLOYER MAY BE SUBJECT TO THE NATIONAL
LABOR RELATIONS ACT ALTHOUGH NOT HIMSELF ENGAGED IN COMMERCE.  THE END
SOUGHT IN THE ENACTMENT OF THE STATUTE WAS THE PREVENTION OF THE
DISTURBANCE TO INTERSTATE COMMERCE CONSEQUENT UPON STRIKES AND LABOR
DISPUTES INDUCED OR LIKELY TO BE INDUCED BECAUSE OF UNFAIR LABOR
PRACTICES NAMED IN THE ACT.  THAT THOSE CONSEQUENCES MAY ENSUE FROM
STRIKES OF THE EMPLOYEES OF MANUFACTURERS WHO ARE NOT ENGAGED IN
INTERSTATE COMMERCE WHERE THE CESSATION OF MANUFACTURE NECESSARILY
RESULTS IN THE CESSATION OF THE MOVEMENT OF THE MANUFACTURED PRODUCT IN
INTERSTATE COMMERCE, HAS BEEN REPEATEDLY POINTED OUT BY THIS COURT. 
NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301
U.S. 1, 38-40; NATIONAL LABOR RELATIONS BOARD V. FRUEHAUF TRAILER CO.,
301 U.S. 49; NATIONAL LABOR RELATIONS BOARD V. FRIEDMAN-HARRY MARKS
CLOTHING CO., 301 U.S. 58; SANTA CRUZ PACKING CO. V. NATIONAL LABOR
RELATIONS BOARD, 303 U.S. 453, 463 ET SEQ.; CF. CONSOLIDATED EDISON CO.
V. NATIONAL LABOR RELATIONS BOARD, 305 U.S. 197.  LONG BEFORE THE
ENACTMENT OF THE NATIONAL LABOR RELATIONS ACT IT HAD BEEN MANY TIMES
HELD BY THIS COURT THAT THE POWER OF CONGRESS EXTENDS TO THE PROTECTION
OF INTERSTATE COMMERCE FROM INTERFERENCE OR INJURY DUE TO ACTIVITIES
WHICH ARE WHOLLY INTRASTATE.  FN1 

HERE INTERSTATE COMMERCE WAS INVOLVED IN THE TRANSPORTATION OF THE
MATERIALS TO BE PROCESSED ACROSS STATE LINES TO THE FACTORY OF
RESPONDENTS AND IN THE TRANSPORTATION OF THE FINISHED PRODUCT TO POINTS
OUTSIDE THE STATE FOR DISTRIBUTION TO PURCHASERS AND ULTIMATE
CONSUMERS.  WHETHER SHIPMENTS WERE MADE DIRECTLY TO RESPONDENTS, AS THE
BOARD FOUND, OR TO A REPRESENTATIVE OF LEE SPORTSWEAR COMPANY AT THE
FACTORY, AS RESPONDENTS CONTEND, IS IMMATERIAL.  IT WAS NOT ANY THE
LESS INTERSTATE COMMERCE BECAUSE THE TRANSPORTATION DID NOT BEGIN OR
END WITH THE TRANSFER OF TITLE OF THE MERCHANDISE TRANSPORTED.  SEE
SANTA CRUZ PACKING CO. V. NATIONAL LABOR RELATIONS BOARD, SUPRA, 463;
CF. GLOUCESTER FERRY CO. V. PENNSYLVANIA, 114 U.S. 196, 203; WABASH,
ST. L. & P. RY. CO. V. ILLINOIS, 118 U.S. 557; HANLEY V. KANSAS CITY
SOUTHERN RY. CO., 187 U.S. 617, 619; MORF V. BINGAMAN, 298 U.S. 407;
INGELS V. MORF, 300 U.S. 290.  TRANSPORTATION ALONE ACROSS STATE LINES
IS COMMERCE WITHIN THE CONSTITUTIONAL CONTROL OF THE NATIONAL
GOVERNMENT AND SUBJECT TO THE REGULATORY POWER OF CONGRESS.  GIBBONS V.
OGDEN, 9 WHEAT.  1; CHAMPION V. AMES, 188 U.S. 321. 

NOR DO WE THINK IT IMPORTANT, AS RESPONDENTS SEEM TO ARGUE, THAT THE
VOLUME OF THE COMMERCE HERE INVOLVED, THOUGH SUBSTANTIAL, WAS
RELATIVELY SMALL AS COMPARED WITH THAT IN THE CASES ARISING UNDER THE
NATIONAL LABOR RELATIONS ACT WHICH HAVE HITHERTO ENGAGED OUR
ATTENTION.  THE POWER OF CONGRESS TO REGULATE INTERSTATE COMMERCE IS
PLENARY AND EXTENDS TO ALL SUCH COMMERCE BE IT GREAT OR SMALL.  HANLEY
V. KANSAS CITY SOUTHERN RY. CO., SUPRA.  THE EXERCISE OF CONGRESSIONAL
POWER UNDER THE SHERMAN ACT, THE CLAYTON ACT, THE FEDERAL TRADE
COMMISSION ACT, OR THE NATIONAL MOTOR VEHICLE THEFT ACT, HAS NEVER BEEN
THOUGHT TO BE CONSTITUTIONALLY RESTRICTED BECAUSE IN ANY PARTICULAR
CASE THE VOLUME OF THE COMMERCE AFFECTED MAY BE SMALL.  THE AMOUNT OF
THE COMMERCE REGULATED IS OF SPECIAL SIGNIFICANCE ONLY TO THE EXTENT
THAT CONGRESS MAY BE TAKEN TO HAVE EXCLUDED COMMERCE OF SMALL VOLUME
FROM THE OPERATION OF ITS REGULATORY MEASURE BY EXPRESS PROVISION OR
FAIR IMPLICATION. 

THE LANGUAGE OF THE NATIONAL LABOR RELATIONS ACT SEEMS TO MAKE IT
PLAIN THAT CONGRESS HAS SET NO RESTRICTIONS UPON THE JURISDICTION OF
THE BOARD TO BE DETERMINED OR FIXED EXCLUSIVELY BY REFERENCE TO THE
VOLUME OF INTERSTATE COMMERCE INVOLVED.  SECTION 2(6) DEFINES COMMERCE
AS "TRADE, TRAFFIC, COMMERCE, TRANSPORTATION, OR COMMUNICATION AMONG
THE SEVERAL STATES," WITHOUT REFERENCE TO ITS VOLUME, AND DECLARES IN
SUBSECTION (7) THAT "THE TERM 'AFFECTING COMMERCE' MEANS IN COMMERCE,
OR BURDENING OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE, OR
HAVING LED OR TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR
OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE."  SECTION 10(A)
CONFERS ON THE BOARD AUTHORITY "TO PREVENT ANY PERSON FROM ENGAGING IN
ANY UNFAIR LABOR PRACTICE (LISTED IN SECTION 8) AFFECTING COMMERCE." 

THE ACT ON ITS FACE THUS EVIDENCES THE INTENTION OF CONGRESS TO
EXERCISE WHATEVER POWER IS CONSTITUTIONALLY GIVEN TO IT TO REGULATE
COMMERCE BY THE ADOPTION OF MEASURES FOR THE PREVENTION OR CONTROL OF
CERTAIN SPECIFIED ACTS - UNFAIR LABOR PRACTICES - WHICH PROVOKE OR TEND
TO PROVOKE STRIKES OR LABOR DISTURBANCES AFFECTING INTERSTATE
COMMERCE.  GIVEN THE OTHER NEEDFUL CONDITIONS, COMMERCE MAY BE AFFECTED
IN THE SAME MANNER AND TO THE SAME EXTENT IN PROPORTION TO ITS VOLUME,
WHETHER IT BE GREAT OR SMALL.  EXAMINING THE ACT IN THE LIGHT OF ITS
PURPOSE AND OF THE CIRCUMSTANCES IN WHICH IT MUST BE APPLIED WE CAN
PERCEIVE NO BASIS FOR INFERRING ANY INTENTION OF CONGRESS TO MAKE THE
OPERATION OF THE ACT DEPEND ON ANY PARTICULAR VOLUME OF COMMERCE
AFFECTED MORE THAN THAT TO WHICH COURTS WOULD APPLY THE MAXIM DE
MINIMIS. 

THERE ARE NOT A FEW INDUSTRIES IN THE UNITED STATES WHICH, THOUGH
CONDUCTED BY RELATIVELY SMALL UNITS, CONTRIBUTE IN THE AGGREGATE A VAST
VOLUME OF INTERSTATE COMMERCE N2.  SOME, LIKE THE CLOTHING INDUSTRY,
ARE EXTENSIVELY UNIONIZED AND HAVE HAD A LONG AND TRAGIC HISTORY OF
INDUSTRIAL STRIFE.  IT IS NOT TO BE SUPPOSED THAT CONGRESS, IN ITS
ATTEMPTED NATIONWIDE REGULATION OF INTERSTATE COMMERCE THROUGH THE
REMOVAL OF THE CAUSES OF INDUSTRIAL STRIFE AFFECTING IT, INTENDED TO
EXCLUDE SUCH INDUSTRIES FROM THE SWEEP OF THE ACT.  IN THIS, AS IN
EVERY OTHER CASE, THE TEST OF THE BOARD'S JURISDICTION IS NOT THE
VOLUME OF THE INTERSTATE COMMERCE WHICH MAY BE AFFECTED, BUT THE
EXISTENCE OF A RELATIONSHIP OF THE EMPLOYER AND HIS EMPLOYEES TO THE
COMMERCE SUCH THAT, TO PARAPHRASE SEC. 10(A) IN THE LIGHT OF
CONSTITUTIONAL LIMITATIONS, UNFAIR LABOR PRACTICES HAVE LED OR TENDED
TO LEAD "TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE." 

IT IS NO LONGER OPEN TO QUESTION THAT THE MANUFACTURER WHO REGULARLY
SHIPS HIS PRODUCT IN INTERSTATE COMMERCE IS SUBJECT TO THE AUTHORITY
CONFERRED ON THE BOARD WITH RESPECT TO UNFAIR LABOR PRACTICES WHENEVER
SUCH PRACTICES ON HIS PART HAVE LED OR TEND TO LEAD TO LABOR DISPUTES
WHICH THREATEN TO OBSTRUCT HIS SHIPMENTS.  NATIONAL LABOR RELATIONS
BOARD V. JONES & LAUGHLIN STEEL CORP., SUPRA; NATIONAL LABOR RELATIONS
BOARD V. FRUEHAUF TRAILER CO., SUPRA; NATIONAL LABOR RELATIONS BOARD V.
FRIEDMAN-HARRY MARKS CLOTHING CO., SUPRA; SANTA CRUZ PACKING CO. V.
NATIONAL LABOR RELATIONS BOARD, SUPRA; CONSOLIDATED EDISON CO. V.
NATIONAL LABOR RELATIONS BOARD, SUPRA. WE CANNOT SAY, OTHER THINGS
BEING EQUAL, THAT THE TENDENCY DIFFERS IN KIND, QUANTITY OR EFFECT
MERELY BECAUSE THE MERCHANDISE WHICH THE MANUFACTURER SHIPS, INSTEAD OF
BEING HIS OWN, IS THAT OF THE CONSIGNEE OR HIS CUSTOMERS IN OTHER
STATES.  IN EITHER CASE COMMERCE IS IN DANGER OF BEING OBSTRUCTED IN
THE SAME WAY AND TO THE SAME EXTENT. 

HERE, ALTHOUGH RESPONDENTS' MANUFACTURING BUSINESS IS SMALL,
EMPLOYING FROM SIXTY TO TWO HUNDRED EMPLOYEES, ITS PRODUCT IS REGULARLY
SHIPPED IN INTERSTATE COMMERCE.  THE BOARD'S FINDING THAT RESPONDENTS'
UNFAIR LABOR PRACTICES HAVE LED AND TEND TO LEAD TO LABOR DISPUTES
BURDENING INTERSTATE COMMERCE AND INTERFERING WITH ITS FREE FLOW IS
SUPPORTED BY THE EVIDENCE.  MOREOVER, THE BOARD HAS FOUND SPECIFICALLY
THAT RESPONDENTS' UNFAIR LABOR PRACTICES IN ATTEMPTING TO PREVENT THE
UNIONIZATION OF THEIR FACTORY DID IN FACT LEAD TO A STRIKE IN
RESPONDENTS' TAILORING ESTABLISHMENT, WITH A CONSEQUENT REDUCTION OF
ABOUT 50 PER CENT. IN RESPONDENTS' OUTPUT.  THESE FINDINGS ARE NOT
CHALLENGED. 

THE THREATENED CONSEQUENCES TO INTERSTATE COMMERCE ARE AS IMMEDIATE
AND AS CERTAIN TO FLOW FROM RESPONDENTS' UNFAIR LABOR PRACTICES AS WERE
THOSE WHICH WERE HELD TO RESULT FROM UNFAIR LABOR PRACTICES IN NATIONAL
LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., SUPRA; NATIONAL
LABOR RELATIONS BOARD V. FRUEHAUF TRAILER CO., SUPRA; NATIONAL LABOR
RELATIONS BOARD V. FRIEDMAN-HARRY MARKS CLOTHING CO., SUPRA; SANTA CRUZ
PACKING CO. V. NATIONAL LABOR RELATIONS BOARD, SUPRA; CONSOLIDATED
EDISON CO. V. NATIONAL LABOR RELATIONS BOARD, SUPRA.  THAT THE VOLUME
OF COMMERCE AFFECTED IS SMALLER THAN IN OTHER CASES IN WHICH THE
JURISDICTION OF THE BOARD HAS BEEN UPHELD, FOR REASONS ALREADY STATED,
IS IN ITSELF WITHOUT SIGNIFICANCE.  REVERSED.    FN1  IT MAY PROHIBIT
WHOLLY INTRASTATE ACTIVITIES WHICH, IF PERMITTED, WOULD RESULT IN
RESTRAINT OF INTERSTATE COMMERCE.  CORONADO COAL CO. V. UNITED MINE
WORKERS, 268 U.S. 295, 310; BEDFORD CUT STONE CO. V. STONE CUTTERS
ASSN., 274 U.S. 37, 46; LOCAL 167 V. UNITED STATES, 291 U.S. 293, 297. 
IT MAY REGULATE THE ACTIVITIES OF A LOCAL GRAIN EXCHANGE SHOWN TO HAVE
AN INJURIOUS EFFECT ON INTERSTATE COMMERCE.  CHICAGO BOARD OF TRADE V.
OLSEN, 262 U.S. 1.  IT MAY REGULATE INTRASTATE RATES OF INTERSTATE
CARRIERS WHERE THE EFFECT OF THE RATES IS TO BURDEN INTERSTATE
COMMERCE.  HOUSTON, E. & W. TEXAS RY. CO. V. UNITED STATES, 234 U.S.
342; RAILROAD COMMISSION OF WISCONSIN V. CHICAGO, B. & Q.R. CO., 257
U.S. 563; UNITED STATES V. LOUISIANA, 290 U.S. 70, 74; FLORIDA V.
UNITED STATES, 295 U.S. 301.  IT MAY COMPEL THE ADOPTION OF SAFETY
APPLIANCES ON ROLLING STOCK MOVING INTRASTATE BECAUSE OF THE RELATION
TO AND EFFECT OF SUCH APPLIANCES UPON INTERSTATE TRAFFIC MOVING OVER
THE SAME RAILROAD.  SOUTHERN RY. CO. V. UNITED STATES, 222 U.S. 20.  IT
MAY PRESCRIBE MAXIMUM HOURS FOR EMPLOYEES ENGAGED IN INTRASTATE
ACTIVITY CONNECTED WITH THE MOVEMENT OF ANY TRAIN, SUCH AS TRAIN
DISPATCHERS AND TELEGRAPHERS.  BALTIMORE & OHIO R. CO. V. INTERSTATE
COMMERCE COMM'N, 221 U.S. 612, 619. 

FN2  IN THE YEAR 1933 THE WOMEN'S CLOTHING INDUSTRY RANKED NINTH
AMONG MANUFACTURING INDUSTRIES IN NUMBER OF WORKERS EMPLOYED AND EIGHTH
IN VALUE OF PRODUCT.  U.S. BIENNIAL CENSUS OF MANUFACTURES (COMMERCE
DEPT., 1933).  IN THIS INDUSTRY THE "CONTRACT SHOP" IS COMMON.  ABOUT
ONE-HALF OF THE 3,414 ENTERPRISES ENGAGED IN 1935 IN THE MANUFACTURE OF
WOMEN'S DRESSES WERE "CONTRACT SHOPS."  U.S. BIENNIAL CENSUS OF
MANUFACTURES (COMMERCE DEPT., 1935).  THESE ENTERPRISES EMPLOYED AN
AVERAGE OF ONLY ABOUT THIRTY-TWO EMPLOYEES EACH. 

MR. JUSTICE MCREYNOLDS, DISSENTING: 

MR. JUSTICE BUTLER AND I CONCLUDE THAT THE CHALLENGED JUDGMENT SHOULD
BE AFFIRMED. 

RESPONDENT, BENJAMIN FAINBLATT, AS SOLE OWNER, CONDUCTS A SMALL PLANT
FOR MANUFACTURING WEARING APPAREL LOCATED AT SOMERVILLE, NEW JERSEY,
WHERE HE EMPLOYS SOME SIXTY WOMEN.  THERE HE RECEIVES MATERIAL
BELONGING TO LEE SPORTSWEAR COMPANY OF NEW YORK AND UNDER CONTRACT
CONVERTS THIS INTO GARMENTS.  THESE ARE DELIVERED TO THE COMPANY'S
REPRESENTATIVE AND PAYMENT IS MADE FOR THE WORK DONE.  THE OWNER SENDS
THE FINISHED PRODUCTS TO NEW YORK. 

THE LABOR BOARD CLAIMS JURISDICTION IN RESPECT OF EMPLOYMENT AT THIS
ESTABLISHMENT UPON THE THEORY THAT THE MATERIAL AND GARMENTS MOVE IN
INTERSTATE COMMERCE; THAT DISAPPROVED LABOR PRACTICES THERE MAY LEAD TO
DISPUTES; THAT THESE MAY CAUSE A STRIKE; THAT THIS MAY REDUCE THE
FACTORY OUTPUT; THAT BECAUSE OF SUCH REDUCTION LESS GOODS MAY MOVE
ACROSS THE STATE LINES; AND THUS THERE MAY COME ABOUT INTERFERENCE WITH
THE FREE FLOW OF COMMERCE BETWEEN THE STATES WHICH CONGRESS HAS POWER
TO REGULATE.  SO, IT IS SAID, TO PREVENT THIS POSSIBLE RESULT CONGRESS
MAY CONTROL THE RELATIONSHIP BETWEEN THE EMPLOYER AND THOSE EMPLOYED. 
ALSO, THAT THE SIZE OF THE ESTABLISHMENT'S NORMAL OUTPUT IS OF MINOR OR
NO IMPORTANCE.  IF THE PLANT PRESENTLY EMPLOYED ONLY ONE WOMAN WHO
STITCHED ONE SKIRT DURING EACH WEEK WHICH THE OWNER REGULARLY ACCEPTED
AND SENT TO ANOTHER STATE, CONGRESSIONAL POWER WOULD EXTEND TO THE
ENTERPRISE, ACCORDING TO THE LOGIC OF THE COURT'S OPINION. 

MANIFESTLY IF SUCH ATTENUATED REASONING - POSSIBILITY MASSED UPON
POSSIBILITY - SUFFICES, CONGRESS MAY REGULATE WAGES, HOURS, OUTPUT,
PRICES, ETC., WHENEVER ANY PRODUCT OF EMPLOYED LABOR IS INTENDED TO
PASS BEYOND STATE LINES - POSSIBLY IF CONSUMED NEXT DOOR.  PRODUCERS OF
POTATOES IN MAINE, PEANUTS IN VIRGINIA, COTTON IN GEORGIA, MINERALS IN
COLORADO, WHEAT IN DAKOTA, ORANGES IN CALIFORNIA, AND THOUSANDS OF
SMALL LOCAL ENTERPRISES BECOME SUBJECT TO NATIONAL DIRECTION THROUGH A
BOARD. 

OF COURSE, NO SUCH RESULT WAS INTENDED BY THOSE WHO FRAMED THE
CONSTITUTION.  IF THE POSSIBILITY OF THIS HAD BEEN DECLARED THE
CONSTITUTION COULD NOT HAVE BEEN ADOPTED.  SO CONSTRUED, THE POWER TO
REGULATE INTERSTATE COMMERCE BRINGS WITHIN THE AMBIT OF FEDERAL CONTROL
MOST IF NOT ALL ACTIVITIES OF THE NATION; SUBJECTS STATES TO THE WILL
OF CONGRESS; AND PERMITS DISRUPTION OF OUR FEDERATED SYSTEM. 

KIDD V. PEARSON (1888) 128 U.S. 1, 20, 21, LUCIDLY POINTED OUT THE
NECESSARY RESULT OF THIS SUBVERSIVE DOCTRINE, SHOWED HOW IT HAD LONG
BEEN AUTHORITATIVELY REJECTED, AND DEMONSTRATED ITS UTTER ABSURDITY.  A
FEW PARAGRAPHS FROM THAT OPINION MAY QUICKEN ESTIMATION OF WHAT NOW
IMPENDS. 

"WE THINK THE CONSTRUCTION CONTENDED FOR BY PLAINTIFF IN ERROR WOULD
EXTEND THE WORDS OF THE GRANT TO CONGRESS, IN THE CONSTITUTION, BEYOND
THEIR OBVIOUS IMPORT, AND IS INCONSISTENT WITH ITS OBJECTS AND SCOPE. 
THE LANGUAGE OF THE GRANT IS, 'CONGRESS SHALL HAVE POWER TO REGULATE
COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES,' ETC.
THESE WORDS ARE USED WITHOUT ANY VEILED OR OBSCURE SIGNIFICATION.  'AS
MEN WHOSE INTENTIONS REQUIRE NO CONCEALMENT GENERALLY EMPLOY THE WORDS
WHICH MOST DIRECTLY AND APTLY EXPRESS THE IDEAS THEY INTEND TO CONVEY,
THE ENLIGHTENED PATRIOTS WHO FRAMED OUR CONSTITUTION, AND THE PEOPLE
WHO ADOPTED IT, MUST BE UNDERSTOOD TO HAVE EMPLOYED WORDS IN THEIR
NATURAL SENSE AND TO HAVE INTENDED WHAT THEY HAVE SAID.'  GIBBONS V.
OGDEN, SUPRA, AT PAGE 188(9 WHEAT.  1, 188). 

"NO DISTINCTION IS MORE POPULAR TO THE COMMON MIND, OR MORE CLEARLY
EXPRESSED IN ECONOMIC AND POLITICAL LITERATURE, THAN THAT BETWEEN
MANUFACTURES AND COMMERCE.  MANUFACTURE IS TRANSFORMATION - THE
FASHIONING OF RAW MATERIALS INTO A CHANGE OF FORM FOR USE.  THE
FUNCTIONS OF COMMERCE ARE DIFFERENT.  THE BUYING AND SELLING AND THE
TRANSPORTATION INCIDENTAL THERETO CONSTITUTE COMMERCE; AND THE
REGULATION OF COMMERCE IN THE CONSTITUTIONAL SENSE EMBRACES THE
REGULATION AT LEAST OF SUCH TRANSPORTATION.  THE LEGAL DEFINITION OF
THE TERM, AS GIVEN BY THIS COURT IN COUNTY OF MOBILE V. KIMBALL, 102
U.S. 691, 702, IS AS FOLLOWS:  'COMMERCE WITH FOREIGN COUNTRIES, AND
AMONG THE STATES, STRICTLY CONSIDERED, CONSISTS IN INTERCOURSE AND
TRAFFIC, INCLUDING IN THESE TERMS NAVIGATION, AND THE TRANSPORTATION
AND TRANSIT OF PERSONS AND PROPERTY, AS WELL AS THE PURCHASE, SALE, AND
EXCHANGE OF COMMODITIES.'  IF IT BE HELD THAT THE TERM INCLUDES THE
REGULATION OF ALL SUCH MANUFACTURES AS ARE INTENDED TO BE THE SUBJECT
OF COMMERCIAL TRANSACTIONS IN THE FUTURE, IT IS IMPOSSIBLE TO DENY THAT
IT WOULD ALSO INCLUDE ALL PRODUCTIVE INDUSTRIES THAT CONTEMPLATE THE
SAME THING.  THE RESULT WOULD BE THAT CONGRESS WOULD BE INVESTED, TO
THE EXCLUSION OF THE STATES, WITH THE POWER TO REGULATE, NOT ONLY
MANUFACTURES, BUT ALSO AGRICULTURE, HORTICULTURE, STOCK RAISING,
DOMESTIC FISHERIES, MINING - IN SHORT, EVERY BRANCH OF HUMAN INDUSTRY. 
FOR IS THERE ONE OF THEM THAT DOES NOT CONTEMPLATE, MORE OR LESS
CLEARLY, AN INTERSTATE OR FOREIGN MARKET?  DOES NOT THE WHEAT GROWER OF
THE NORTHWEST, AND THE COTTON PLANTER OF THE SOUTH, PLANT, CULTIVATE,
AND HARVEST HIS CROP WITH AN EYE ON THE PRICES AT LIVERPOOL, NEW YORK,
AND CHICAGO?  THE POWER BEING VESTED IN CONGRESS AND DENIED TO THE
STATES, IT WOULD FOLLOW AS AN INEVITABLE RESULT THAT THE DUTY WOULD
DEVOLVE ON CONGRESS TO REGULATE ALL OF THESE DELICATE, MULTIFORM, AND
VITAL INTERESTS - INTERESTS WHICH IN THEIR NATURE ARE AND MUST BE,
LOCAL IN ALL THE DETAILS OF THEIR SUCCESSFUL MANAGEMENT." 

THE DOCTRINE APPROVED IN KIDD V. PEARSON HAS BEEN OFTEN APPLIED.  IT
WAS THE RECOGNIZED VIEW OF THIS COURT FOR MORE THAN A HUNDRED YEARS. 

UNITED STATES V. E.C. KNIGHT CO., (1895) 156 U.S. 1, 16 DECLARED - 

"SLIGHT REFLECTION WILL SHOW THAT IF THE NATIONAL POWER EXTENDS TO
ALL  ...  PRODUCTIVE INDUSTRIES, WHOSE ULTIMATE RESULT MAY AFFECT
EXTERNAL COMMERCE, COMPARATIVELY LITTLE OF BUSINESS OPERATIONS AND
AFFAIRS WOULD BE LEFT FOR STATE CONTROL." 

OLIVER IRON CO. V. LORD, (1923) 262 U.S. 172, 178 - 

"MINING IS NOT INTERSTATE COMMERCE, BUT, LIKE MANUFACTURING, IS A
LOCAL BUSINESS SUBJECT TO LOCAL REGULATION AND TAXATION.  ...  ITS
CHARACTER IN THIS REGARD IS INTRINSIC, IS NOT AFFECTED BY THE INTENDED
USE OR DISPOSAL OF THE PRODUCT, IS NOT CONTROLLED BY CONTRACTUAL
ENGAGEMENTS, AND PERSISTS EVEN THOUGH THE BUSINESS BE CONDUCTED IN
CLOSE CONNECTION WITH INTERSTATE COMMERCE." 

SCHECHTER CORP. V. UNITED STATES, (1935) 295 U.S. 495, 546, 548, 549,
550 - 

"IF THE COMMERCE CLAUSE WERE CONSTRUED TO REACH ALL ENTERPRISES AND
TRANSACTIONS WHICH COULD BE SAID TO HAVE AN INDIRECT EFFECT UPON
INTERSTATE COMMERCE, THE FEDERAL AUTHORITY WOULD EMBRACE PRACTICALLY
ALL THE ACTIVITIES OF THE PEOPLE AND THE AUTHORITY OF THE STATE OVER
ITS DOMESTIC CONCERNS WOULD EXIST ONLY BY SUFFERANCE OF THE FEDERAL
GOVERNMENT.  ...  THE DISTINCTION BETWEEN DIRECT AND INDIRECT EFFECTS
OF INTRASTATE TRANSACTIONS UPON INTERSTATE COMMERCE MUST BE RECOGNIZED
AS A FUNDAMENTAL ONE, ESSENTIAL TO THE MAINTENANCE OF OUR
CONSTITUTIONAL SYSTEM.   ...  IF THE FEDERAL GOVERNMENT MAY DETERMINE
THE WAGES AND HOURS OF EMPLOYEES IN THE INTERNAL COMMERCE OF A STATE
...  IT WOULD SEEM THAT A SIMILAR CONTROL MIGHT BE EXERTED OVER OTHER
ELEMENTS OF COST, ALSO AFFECTING PRICES, SUCH AS THE NUMBER OF
EMPLOYEES, RENTS, ADVERTISING, METHODS OF DOING BUSINESS, ETC.  ALL THE
PROCESSES OF PRODUCTION AND DISTRIBUTION THAT ENTER INTO COST COULD
LIKEWISE BE CONTROLLED.  ...  BUT THE AUTHORITY OF THE FEDERAL
GOVERNMENT MAY NOT BE PUSHED TO SUCH AN EXTREME AS TO DESTROY THE
DISTINCTION, WHICH THE COMMERCE CLAUSE ITSELF ESTABLISHES, BETWEEN
COMMERCE 'AMONG THE SEVERAL STATES' AND THE INTERNAL CONCERNS OF A
STATE.  ...  THE RECUPERATIVE EFFORTS OF THE FEDERAL GOVERNMENT MUST BE
MADE IN A MANNER CONSISTENT WITH THE AUTHORITY GRANTED BY THE
CONSTITUTION." 

CARTER V. CARTER COAL CO., (1936) 298 U.S. 238, 303, 309 - 

"PLAINLY, THE INCIDENTS LEADING UP TO AND CULMINATING IN THE MINING
OF COAL DO NOT CONSTITUTE SUCH INTERCOURSE.  THE EMPLOYMENT OF MEN, THE
FIXING OF THEIR WAGES, HOURS OF LABOR AND WORKING CONDITIONS, THE
BARGAINING IN RESPECT OF THESE THINGS - WHETHER CARRIED ON SEPARATELY
OR COLLECTIVELY - EACH AND ALL CONSTITUTE INTERCOURSE FOR THE PURPOSES
OF PRODUCTION, NOT OF TRADE.  ...  THE GOVERNMENT'S CONTENTIONS IN
DEFENSE OF THE LABOR PROVISIONS ARE REALLY DISPOSED OF ADVERSELY BY OUR
DECISION IN THE SCHECHTER CASE.  ...  THERE IS NO BASIS IN LAW OR
REASON FOR APPLYING DIFFERENT RULES TO THE TWO SITUATIONS." 

THE PRESENT DECISION AND THE REASONING OFFERED TO SUPPORT IT WILL
INEVITABLY INTENSIFY BEWILDERMENT.  THE RESULTING CURTAILMENT OF THE
INDEPENDENCE RESERVED TO THE STATES AND THE TREMENDOUS ENLARGEMENT OF
FEDERAL POWER DENOTE THE SERIOUS IMPAIRMENT OF THE VERY FOUNDATION OF
OUR FEDERATED SYSTEM.  PERHAPS THE CHANGE OF DIRECTION, NO LONGER
CAPABLE OF CONCEALMENT, WILL GIVE POTENCY TO THE EFFORTS OF THOSE WHO
APPARENTLY HOPE TO END A SYSTEM OF GOVERNMENT FOUND INHOSPITABLE TO
THEIR ULTIMATE DESIGNS. 
..END :





CHIPPEWA INDIANS V. U.S., 307 U.S. 1 


NO. 666.  ARGUED MARCH 30, 1939.  - DECIDED APRIL 17, 1939.  - 88 CT.
CLS. 1, AFFIRMED. 


1.  THE ACT OF JANUARY 14, 1889, PURSUANT TO WHICH THE BANDS OF
CHIPPEWA INDIANS IN MINNESOTA CEDED THEIR RESERVATIONS TO THE UNITED
STATES AND THE UNITED STATES UNDERTOOK TO SELL LAND AND TIMBER, HOLD
THE PROCEEDS IN TRUST, EXPEND INCOME FOR PURPOSES SPECIFIED, AND
ULTIMATELY DISTRIBUTE THE PRINCIPAL, ALL FOR THE BENEFIT OF THE
INDIANS, DID NOT CREATE A CONVENTIONAL TRUST OR ABDICATE GUARDIANSHIP
OVER THE INDIANS AS TRIBAL INDIANS.  P. 3. 

2.  CONGRESS THEREFORE RETAINED THE POWER TO MAKE EXPENDITURES FROM
THE FUND FOR THE BENEFIT OF THE INDIANS IN WAYS NOT CONTEMPLATED BY
THAT ACT.  P. 5. 

CHIPPEWA INDIANS OF MINNESOTA V. UNITED STATES. 

APPEAL FROM THE COURT OF CLAIMS. 

APPEAL FROM A JUDGMENT DISMISSING A SUIT BROUGHT BY THE ABOVE-NAMED
INDIANS FOR RESTORATION OF TRUST FUNDS ALLEGED TO HAVE BEEN DIVERTED BY
THE UNITED STATES. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A JUDGMENT OF THE COURT OF CLAIMS  FN1
DISMISSING A SUIT BROUGHT TO COMPEL RESTORATION OF TRUST FUNDS ALLEGED
TO HAVE BEEN DIVERTED BY THE APPELLEE. 

IN 1926 CONGRESS GRANTED PERMISSION FOR THE BRINGING OF THE SUIT,
FN2  WHICH WAS INSTITUTED APRIL 13, 1927.  IN ORDER TO PERMIT THE CLAIM
TO BE PRESENTED IN ITS PRESENT FORM THE PERMISSIVE ACT WAS AMENDED IN
1934.  FN3  THE APPELLANTS THEN FILED AN AMENDED PETITION TO WHICH THE
APPELLEE RESPONDED BY A GENERAL TRAVERSE.  THE RIGHT OF APPEAL FROM THE
JUDGMENT OF THE COURT OF CLAIMS IS CONFERRED BY JOINT RESOLUTION OF
JUNE 22, 1936.  FN4 

THE SUIT IS FOR THE ENFORCEMENT OF EQUITABLE CLAIMS ARISING UNDER OR
GROWING OUT OF THE ACT OF JANUARY 14, 1889.  FN5  THE APPELLANTS'
THEORY IS THAT THE ACT CONSTITUTED AN OFFER ON THE PART OF CONGRESS FOR
AN AGREEMENT WITH THE BANDS OF CHIPPEWAS LOCATED IN MINNESOTA, WHEREBY,
IF THESE BANDS WOULD CEDE THE INDIAN TITLE TO THEIR RESERVATIONS,
(WHICH THEY DID), THE UNITED STATES WOULD SELL THE TIMBER THEREON AND
OPEN THE AGRICULTURAL LANDS TO SETTLEMENT, AND HOLD THE PROCEEDS OF THE
TIMBER AND THE LANDS, IN TRUST, TO EXPEND THE INCOME FOR PURPOSES
SPECIFIED IN THE STATUTE, INCLUDING PAYMENT OF A PORTION OF SUCH INCOME
TO THE INDIANS, AND TO DISTRIBUTE THE PRINCIPAL AT THE EXPIRATION OF
FIFTY YEARS AFTER ALLOTMENTS HAD BEEN COMPLETED TO ALL THE MEMBERS OF
THE VARIOUS BANDS ON SPECIFIED RESERVATIONS.  THE CIRCUMSTANCES LEADING
TO THE ADOPTION OF THE ACT AND ITS RELEVANT SECTIONS APPEAR IN EARLIER
DECISIONS OF THIS COURT AND NEED NOT HERE BE REPEATED.  FN6 

THE APPELLANTS ASSERT THAT, BY THE ACT OF 1889, CONGRESS ABDICATED
ITS PLENARY POWER OF ADMINISTRATION OF THE CHIPPEWAS' PROPERTY AS
TRIBAL PROPERTY, RECOGNIZED THAT THE RESERVATIONS OF THE RESPECTIVE
BANDS WERE NOT TRIBAL PROPERTY, AND AGREED TO HOLD THE PROCEEDS OF THE
CEDED LANDS IN STRICT AND CONVENTIONAL TRUST FOR CLASSES OF INDIVIDUAL
INDIANS IN ACCORDANCE WITH THE PROGRAM OUTLINED IN THE ACT. 

IN THIS VIEW THE LIVING CHIPPEWAS ARE BENEFICIARIES OF THE INCOME OF
THE FUND DURING THE FIFTY YEAR PERIOD, AND INDIVIDUAL CHIPPEWA INDIANS
WHO MAY BE LIVING AT THE EXPIRATION OF THE PERIOD, AS A CLASS, ARE
REMAINDERMEN.  IT IS URGED THAT, AS CONGRESS HAS, FROM TIME TO TIME,
REIMBURSED THE TREASURY FOR EXPENDITURES FOR THE BENEFIT OF THE
CHIPPEWA INDIANS OF MINNESOTA OUT OF THE FUND, AND HAS AUTHORIZED OTHER
DIRECT EXPENDITURES FROM THE FUND FOR THE BENEFIT OF THE INDIANS IN
WAYS NOT AUTHORIZED BY THE ACT, THE UNITED STATES HAS BEEN GUILTY OF A
DIVERSION OF TRUST FUNDS AND THAT THE APPELLANTS, AS THE
REPRESENTATIVES OF THE REMAINDERMEN, ARE ENTITLED, ON PLAIN PRINCIPLES
OF EQUITY, TO DEMAND RESTORATION OF THE DIVERTED SUMS TO THE CORPUS. 

IF, AS THE COURT OF CLAIMS HAS FOUND, THE ACT OF 1889, AND THE
CESSIONS MADE PURSUANT TO IT, DID NOT CREATE A TECHNICAL TRUST, WE ARE
RELIEVED FROM CONSIDERING MANY OF THE CONTENTIONS PRESSED BY THE
APPELLANTS IN THAT COURT AND HERE.  WE ARE OF OPINION THAT THE COURT OF
CLAIMS WAS RIGHT IN ITS DECISION THAT NO SUCH TRUST WAS CREATED. 

THE ORIGINAL TRIBAL STATUS OF THE CHIPPEWAS IS DESCRIBED IN WILBUR V.
UNITED STATES, 281 U.S. 206, 208, AND CHIPPEWA INDIANS V. UNITED
STATES, 301 U.S. 358, 360.  IT IS UNNECESSARY NOW TO RESTATE WHAT WAS
THERE SAID ON THE SUBJECT. 

IT IS TRUE THAT, PRIOR TO THE ADOPTION OF THE ACT OF 1889, THE TRIBE
HAD BEEN BROKEN UP INTO NUMEROUS BANDS, SOME OF WHICH HELD INDIAN TITLE
TO TRACTS IN THE STATE OF MINNESOTA.  THE ACT REFERS TO THESE
COLLECTIVELY AS "THE CHIPPEWAS IN THE STATE OF MINNESOTA."  WHETHER OR
NOT THE TRIBAL RELATION HAD BEEN DISSOLVED PRIOR TO ITS ADOPTION, THE
ACT CONTEMPLATES FUTURE DEALINGS WITH THE INDIANS UPON A TRIBAL BASIS. 
IT EXHIBITS A PURPOSE GRADUALLY TO EMANCIPATE THE INDIANS AND TO BRING
ABOUT A STATUS COMPARABLE TO THAT OF CITIZENS OF THE UNITED STATES. 
BUT IT IS PLAIN THAT, IN THE INTERIM, CONGRESS DID NOT INTEND TO
SURRENDER ITS GUARDIANSHIP OVER THE INDIANS OR TREAT THEM OTHERWISE
THAN AS TRIBAL INDIANS. 

THIS IS EVIDENCED BY A SERIES OF ACTS, THE FIRST OF WHICH WAS ADOPTED
NINETEEN MONTHS AFTER THE ACT OF 1889, WHICH ARE INCONSISTENT WITH THE
VIEW THAT THE CONGRESS CONSIDERED THE INDIANS AS EMANCIPATED OR
INTENDED TO ENTER INTO A BINDING CONTRACT WITH THEM AS INDIVIDUALS. 
FN7  MANY OF THESE STATUTES REFER TO THE CHIPPEWAS OF MINNESOTA AS A
TRIBE.  FN8  MOREOVER, AN EXAMINATION OF THE ACT OF 1889 DISCLOSES THAT
IT IS NOT CAST IN THE FORM OF AN AGREEMENT; AND, WE MAY NOT ASSUME THAT
CONGRESS ABANDONED ITS GUARDIANSHIP OF THE TRIBE OR THE BANDS AND
ENTERED INTO A FORMAL TRUST AGREEMENT WITH THE INDIANS, IN THE ABSENCE
OF A CLEAR EXPRESSION OF THAT INTENT. 

IT IS NOT CONTENDED THAT THE EXPENDITURES MADE FROM THE FUND, OR
REIMBURSED FROM IT, WERE NOT FOR THE BENEFIT OF THE INDIANS OR WERE NOT
SUCH AS PROPERLY MIGHT BE MADE FOR THEIR EDUCATION AND CIVILIZATION,
THE PURPOSES STATED IN THE ACT OF 1889. 

WE HOLD THAT THE ACT DID NOT TIE THE HANDS OF CONGRESS SO THAT IT
COULD NOT DEPART FROM THE PLAN ENVISAGED THEREIN, IN THE USE OF THE
TRIBAL PROPERTY FOR THE BENEFIT OF ITS INDIAN WARDS. 

THE JUDGMENT OF THE COURT OF CLAIMS IS AFFIRMED. 

FN1  88 CT. CLS. 1. 

FN2  ACT OF MAY 14, 1926, C. 300; 44 STAT. 555, AS AMENDED BY ACTS OF
APRIL 11, 1928, C. 357, 45 STAT. 423, AND JUNE 18, 1934, C. 568, 48
STAT. 979. 

FN3  ACT OF JUNE 18, 1934, C. 568, 48 STAT. 979. 

FN4  C. 714, 49 STAT. 1826. 

FN5  25 STAT. 642. 

FN6  WILBUR V. UNITED STATES, 281 U.S. 206, 209, 210; CHIPPEWA
INDIANS V. UNITED STATES, 301 U.S. 358, 362. 

FN7  AUG. 19, 1890, C. 807, 26 STAT. 336, 357.  BETWEEN 1890 AND 1926
CONGRESS APPROPRIATED, EITHER FROM THE FUND CREATED UNDER THE ACT OF
1889 OR FROM PUBLIC FUNDS REIMBURSABLE THEREFROM, A TOTAL OF $5,105,059
FOR THE CIVILIZATION AND SUPPORT OF THE CHIPPEWAS.  (FINDINGS 9, 10,
15.)  DURING THE PERIOD 1889 TO 1934 CONGRESS AUTHORIZED THE
EXPENDITURE OF PUBLIC FUNDS TOTALING $5,065,878 FOR THE USE AND BENEFIT
OF THE CHIPPEWAS WITHOUT ANY PROVISION FOR REIMBURSEMENT.  (FINDING
20.) 

FN8  AUG. 1, 1914, C. 222, 38 STAT. 582, 592; MAY 18, 1916, C. 125,
39 STAT. 134, 135; MARCH 2, 1917, C. 146, 39 STAT. 969, 979; MAY 25,
1918, C. 86, 40 STAT. 561, 572; JUNE 30, 1919, C. 4, 41 STAT. 3, 14;
FEBRUARY 14, 1920, C. 75, 41 STAT. 408, 419; NOVEMBER 19, 1921, C. 133,
42 STAT. 221; JANUARY 30, 1925, C. 114, 43 STAT. 798; FEBRUARY 19,
1926, C. 22, 44 STAT. 7; MARCH 4, 1929, C. 705, 45 STAT. 1562, 1584. 
..END :













ELECTRIC BATTERY CO. V. SHIMADZU, 307 U.S. 5 


NO. 441.  ARGUED FEBRUARY 28, 1939.  - DECIDED APRIL 17, 1939.  - 98
F.2D 831, REVERSED. 


1.  UNDER R.S. SEC. 4886, A PATENT FOR AN INVENTION MADE BUT NOT
PATENTED OR PUBLISHED IN A FOREIGN COUNTRY, IS GOOD, IN A SUIT FOR
INFRINGEMENT, AGAINST AN INNOCENT INFRINGING USE IN THIS COUNTRY FOR
WHICH NO PATENT RIGHT IS CLAIMED AND WHICH BEGAN BEFORE THE DATE OF THE
APPLICATION BUT AFTER THE ACTUAL DATE OF THE INVENTION.  PP. 10 ET
SEQ. 

2.  R.S. SEC. 4887 CONTAINS NO PROVISION WHICH PRECLUDES PROOF OF
FACTS RESPECTING THE ACTUAL DATE OF INVENTION IN A FOREIGN COUNTRY TO
OVERCOME THE PRIOR KNOWLEDGE OR USE BAR OF SEC. 4886.  P. 12. 

3.  R.S. SEC. 4923, WHICH PROVIDES THAT IF THE PATENTEE, AT THE TIME
OF HIS APPLICATION, BELIEVED HIMSELF THE ORIGINAL OR FIRST INVENTOR,
HIS PATENT SHALL NOT BE REFUSED OR HELD VOID BY REASON OF THE INVENTION
HAVING BEEN KNOWN OR USED IN A FOREIGN COUNTRY, BEFORE HIS INVENTION OR
DISCOVERY, IF IT HAD NOT BEEN PATENTED OR DESCRIBED IN A PRINTED
PUBLICATION, HELD INAPPLICABLE WHERE THE LITIGATION IS BETWEEN THE
PATENTEE OF A FOREIGN INVENTION, OR HIS ASSIGNEE, AND AN ALLEGED
INFRINGER WHO DEFENDS ONLY IN VIRTUE OF PRIOR KNOWLEDGE OR USE NOT
COVERED BY PATENT.  P. 13. 

4. REPEATED AMENDMENT OF SECTIONS OF THE PATENT LAWS WITHOUT
ALTERATION OF PROVISIONS THERETOFORE CONSTRUED BY THE COURTS, IMPLIES
LEGISLATIVE APPROVAL OF SUCH CONSTRUCTIONS.  P. 14. 

5.  THE QUESTION WHETHER AN INVENTION HAS BEEN ABANDONED IS ONE OF
FACT.  P. 15. 

6.  R.S. SEC. 4920 MAKES ABANDONMENT AN AFFIRMATIVE DEFENSE WHICH
MUST BE PLEADED AND PROVED.  P. 16. 

HELD IN THIS CASE THAT THE DEFENSE WAS WAIVED BY FAILURE TO PLEAD IT
IN THE ORIGINAL ANSWER OR BY AMENDMENT, AND THAT THE CIRCUMSTANCES DID
NOT AFFORD AN EXCUSE ON THE GROUND OF SURPRISE. 

7.  FINDINGS OF THE DISTRICT COURT TO THE EFFECT THAT A FOREIGN
INVENTOR LIMITED HIS APPLICATION FOR A FOREIGN PATENT TO ONE STEP OF
HIS PROCESS, AND, FOR MOTIVES NOT INQUIRED INTO, WITHHELD MORE
ESSENTIAL FEATURES FOR FUTURE PATENTING, ARE NOT TO BE CONSTRUED IN
THIS CASE AS MEANING THAT HE CONCEALED THE FULL INVENTION AND DELAYED
APPLICATIONS FOR THE PURPOSE OF EXTENDING UNDULY THE LIFE OF HIS
PATENTS.  P. 15. 

8.  UNDER R.S. SEC. 4886, A VALID PATENT CAN NOT ISSUE FOR AN
INVENTION IN PUBLIC USE IN THIS COUNTRY FOR MORE THAN TWO YEARS PRIOR
TO THE FILING OF THE APPLICATION.  P. 17. 

THIS DEFENSE WAS DULY PLEADED IN THIS CASE BY DENIALS OF NEGATIVE
ALLEGATIONS OF THE BILL AND BY AFFIRMATIVE ALLEGATIONS, IN THE ANSWER. 
P. 17. 

9.  THE ORDINARY USE OF A MACHINE OR THE PRACTICE OF A PROCESS IN A
FACTORY IN THE USUAL COURSE OF PRODUCING ARTICLES FOR COMMERCIAL
PURPOSES IS A PUBLIC USE WITHIN THE MEANING OF R.S. SEC. 4886.  P. 18. 

SO HELD WHERE THE DEFENDANT HAD CONTINUOUSLY EMPLOYED THE ALLEGEDLY
INFRINGING MACHINE AND PROCESS FOR THE PRODUCTION OF LEAD OXIDE POWDER
USED IN THE MANUFACTURE OF PLATES FOR STORAGE BATTERIES WHICH WERE SOLD
IN QUANTITY, AND WHERE THE MACHINE, PROCESS AND THE PRODUCT WERE WELL
KNOWN TO THE EMPLOYEES IN THE PLANT, AND NO EFFORTS WERE MADE TO
CONCEAL THEM FROM ANYONE WHO HAD A LEGITIMATE INTEREST IN UNDERSTANDING
THEM. 

10.  UPON FINDING THAT TWO OF THE PATENTS SUSTAINED BY THE COURTS
BELOW ARE INVALID BECAUSE OF MORE THAN TWO YEARS' PUBLIC USE PRIOR TO
APPLICATION, THE COURT DIRECTS THAT THE BILL BE DISMISSED AS TO THEM;
BUT AS TO A THIRD PATENT, NOT SUBJECT TO THAT OBJECTION, IT DIRECTS
THAT THE QUESTIONS OF VALIDITY IN OTHER RESPECTS AND OF INFRINGEMENT BE
RE-EXAMINED BY THE DISTRICT COURT.  PP. 20, 22. 

AS TO PATENT NO. 1,584,149, TO SHIMADZU, CLAIMS 1 AND 2, FOR A METHOD
OF FORMING FINELY DIVIDED LEAD POWDER, THE CAUSE IS REMANDED FOR
FURTHER EXAMINATION IN REGARD TO VALIDITY AND INFRINGEMENT. 

PATENT NO. 1,584,150, TO SHIMADZU, CLAIMS 1-4, 6, 8-13, FOR A METHOD
OR PROCESS OF MANUFACTURING A POWDER COMPOSED OF METALLIC AND OXIDIZED
LEAD; AND PATENT NO. 1,896,020, TO SHIMADZU, CLAIMS 10 AND 11, FOR AN
APPARATUS FOR THE CONTINUOUS PRODUCTION OF LEAD OXIDES, HELD INVALID. 

ELECTRIC STORAGE BATTERY CO. V. SHIMADZU ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 305 U.S. 591, TO REVIEW THE AFFIRMANCE OF A DECREE, 17
F.SUPP.  42, ENJOINING ALLEGED INFRINGEMENT OF THREE PATENTS AND
REFERRING THE CAUSE TO A SPECIAL MASTER FOR AN ACCOUNTING. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE COURTS BELOW HAVE HELD VALID AND INFRINGED CERTAIN CLAIMS OF
THREE PATENTS  FN1  GRANTED TO GENZO SHIMADZU, A CITIZEN AND RESIDENT
OF JAPAN.  THE EARLIEST IS FOR A METHOD OF FORMING A FINELY DIVIDED
AND, CONSEQUENTLY, MORE CHEMICALLY REACTIVE, LEAD POWDER.  THE SECOND
IS FOR A METHOD OR PROCESS OF MANUFACTURING A FINE POWDER COMPOSED OF
LEAD SUBOXIDE AND METALLIC LEAD AND FOR THE PRODUCT OF THE PROCESS. 
THE THIRD IS FOR AN APPARATUS FOR THE CONTINUOUS PRODUCTION OF LEAD
OXIDES IN THE FORM OF A DRY FINE POWDER.  SUCH POWDER IS USEFUL IN THE
MANUFACTURE OF PLATES FOR STORAGE BATTERIES. 

THE BILL WAS FILED BY THE RESPONDENTS AS PATENTEE AND EXCLUSIVE
LICENSEE.  THE ANSWER DENIED THAT SHIMADZU WAS THE FIRST INVENTOR;
ASSERTED KNOWLEDGE AND USE OF THE INVENTION BY THE PETITIONER IN THE
UNITED STATES MORE THAN TWO YEARS PRIOR TO THE DATES OF THE
APPLICATIONS; AND PLEADED THAT EARLIER PATENTS PROCURED BY SHIMADZU IN
JAPAN AVOIDED THE UNITED STATES PATENTS AS THE FORMER WERE FOR THE SAME
INVENTIONS AND EACH WAS GRANTED MORE THAN A YEAR PRIOR TO THE FILING OF
THE CORRESPONDING APPLICATION IN THIS COUNTRY.  THE CASE WAS TRIED, THE
DISTRICT COURT FOUND THE FACTS, STATED ITS CONCLUSIONS, AND ENTERED A
DECREE FOR THE RESPONDENTS,  FN2  WHICH THE CIRCUIT COURT OF APPEALS
AFFIRMED.  FN3  THE PETITIONER SOUGHT CERTIORARI ALLEGING THAT THE CASE
PRESENTS THREE QUESTIONS, ONE WHICH SHOULD BE SETTLED BY THIS COURT AND
TWO WHICH WERE DECIDED BELOW CONTRARY TO OUR ADJUDICATIONS. 

THE QUESTIONS ARE:  IN AN INFRINGEMENT SUIT BY THE OWNER OF A PATENT
FOR AN INVENTION, MADE BUT NOT PATENTED OR PUBLISHED ABROAD, TO
RESTRAIN AN INNOCENT USE, THE INCEPTION OF WHICH ANTEDATES THE
APPLICATION FOR PATENT, MAY THE PLAINTIFF PROVE THAT HIS ACTUAL DATE OF
INVENTION WAS EARLIER THAN THE COMMENCEMENT OF THE ASSERTED INFRINGING
USE?  IS THE DELAY OF THE PATENTEE IN THIS CASE IN APPLYING FOR PATENT
A BAR TO RELIEF FOR ALLEGED INFRINGEMENT?  DOES COMMERCIAL USE OF THE
PATENTED PROCESS AND APPARATUS IN THE ALLEGED INFRINGER'S PLANT FOR
MORE THAN TWO YEARS PRIOR TO THE APPLICATION FOR PATENT PRECLUDE
REDRESS? 

NO CONTROVERSY OF FACT IS INVOLVED AS THE PETITIONER CONCEDES IT MUST
ACCEPT THE CONCURRENT FINDINGS OF THE COURTS BELOW.  FN4  THE RELEVANT
FACTS LIE WITHIN A NARROW COMPASS. 

THE INVENTIONS WHICH ARE THE BASIS OF THE PATENTS WERE CONCEIVED BY
SHIMADZU AND REDUCED TO PRACTISE IN JAPAN NOT LATER THAN AUGUST 1919. 
HE DID NOT DISCLOSE THE INVENTIONS TO ANYONE IN THE UNITED STATES
BEFORE HE APPLIED FOR UNITED STATES PATENTS.  APPLICATION WAS PRESENTED
FOR NO. 1,584,149 ON JANUARY 30, 1922; FOR NO. 1,584,150 ON JULY 14,
1923; AND FOR NO. 1,896,020 ON APRIL 27, 1926.  THE INVENTIONS WERE NOT
PATENTED OR DESCRIBED IN A PRINTED PUBLICATION IN THIS OR ANY FOREIGN
COUNTRY PRIOR TO THE FILING OF THE APPLICATIONS.  THE PETITIONER,
WITHOUT KNOWLEDGE OF SHIMADZU'S INVENTIONS, BEGAN THE USE OF A MACHINE,
WHICH INVOLVED BOTH THE METHOD AND THE APPARATUS OF THE PATENTS, AT
PHILADELPHIA, PENNSYLVANIA, EARLY IN 1921 AND ATTAINED COMMERCIAL
PRODUCTION IN JUNE 1921.  OVER THE OBJECTION OF THE PETITIONER THE
RESPONDENTS WERE PERMITTED BY TESTIMONY, AND BY THE INTRODUCTION OF
CONTEMPORANEOUS DRAWINGS AND NOTE BOOKS, TO CARRY THE DATE OF INVENTION
BACK TO AUGUST 1919, AND THE COURTS BELOW FIXED THAT AS THE DATE OF
INVENTION AND REDUCTION TO PRACTISE IN JAPAN. 

FIRST.  THE PETITIONER ASSERTS THAT R.S. 4886, 4887, AND 4923,  FN5
CONSIDERED TOGETHER, REQUIRE ONE WHO HAS MADE AN INVENTION ABROAD TO
TAKE AS HIS DATE OF INVENTION THE DATE OF HIS APPLICATION IN THE UNITED
STATES UNLESS, PRIOR THERETO, THE INVENTION HAS BEEN COMMUNICATED AND
DESCRIBED TO SOMEONE IN THIS COUNTRY, OR HAS BEEN PATENTED ABROAD.  THE
RESPONDENTS INSIST THAT THE SECTIONS HAVE NO SUCH FORCE.  THEY SAY THAT
WHERE THE ALLEGED INFRINGER IS NOT ACTING UNDER THE SUPPOSED PROTECTION
OF A PRIOR PATENT, BUT IS USING AN UNPATENTED PROCESS OR DEVICE, THE
HOLDER OF A PATENT FOR A FOREIGN INVENTION, LIKE THE HOLDER OF ONE FOR
AN INVENTION MADE HERE, MAY SHOW NOVELTY BY PROVING THAT HIS INVENTION
ANTEDATED HIS APPLICATION AND THE INFRINGING USE. 

THE SOLUTION OF THE ISSUE REQUIRES EXAMINATION OF TWO OF THE SECTIONS
IN THE LIGHT OF THEIR DEVELOPMENT FROM EARLIER PATENT STATUTES. 

R.S. 4886, AS IT STOOD WHEN THE PATENTS WERE GRANTED,  FN6  WAS: 

"ANY PERSON WHO HAS INVENTED OR DISCOVERED ANY NEW AND USEFUL ART,
MACHINE, MANUFACTURE, OR COMPOSITION OF MATTER, OR ANY NEW AND USEFUL
IMPROVEMENTS THEREOF, NOT KNOWN OR USED BY OTHERS (IN THIS COUNTRY),
(BEFORE HIS INVENTION OR DISCOVERY THEREOF), AND NOT PATENTED OR
DESCRIBED IN ANY PRINTED PUBLICATION IN THIS OR ANY FOREIGN COUNTRY,
BEFORE HIS INVENTION OR DISCOVERY THEREOF, (OR MORE THAN TWO YEARS
PRIOR TO HIS APPLICATION), AND NOT IN PUBLIC USE OR ON SALE (IN THIS
COUNTRY) FOR MORE THAN TWO YEARS PRIOR TO HIS APPLICATION, UNLESS THE
SAME IS PROVED TO HAVE BEEN ABANDONED, MAY, UPON PAYMENT OF THE FEES
REQUIRED BY LAW, AND OTHER DUE PROCEEDING HAD, OBTAIN A PATENT
THEREFOR." 

THE LEGISLATIVE HISTORY OF THE SECTION MAY BE BRIEFLY OUTLINED.  THE
PATENT ACT OF 1790  FN7 AUTHORIZED THE GRANT OF A PATENT TO "ANY PERSON
OR PERSONS" WHO MADE AN INVENTION "NOT BEFORE KNOWN OR USED."  THE
SUCCEEDING ACT OF 1793  FN8  CONFINED THE PRIVILEGE TO "A CITIZEN OR
CITIZENS OF THE UNITED STATES," BUT THE ACT OF 1800  FN9  CONFERRED IT
ON ANY ALIEN WHO, AT THE TIME OF HIS APPLICATION, HAD RESIDED FOR TWO
YEARS WITHIN THE UNITED STATES.  BY THE ACT OF 1836  FN10  IT WAS
PROVIDED THAT A PATENT MIGHT BE OBTAINED BY "ANY PERSON OR PERSONS." 
THE ACT OF 1870,  FN11 WHICH WAS CARRIED INTO THE REVISED STATUTES,
ADDED THE WORDS "IN THIS COUNTRY" AS THEY APPEAR IN THE FIRST BRACKET
IN THE FOREGOING QUOTATION.  THE ACT OF 1897  FN12  ADDED THE THREE
OTHER BRACKETED CLAUSES. 

THE REQUIREMENT OF THE ACT OF 1790 WAS THAT THE DISCOVERY BE "NOT
BEFORE KNOWN OR USED."  THE ACT OF 1793 AMENDED THIS TO READ "NOT KNOWN
OR USED BEFORE THE APPLICATION."  THE ACT OF 1800 ALTERED THE PROVISION
SO THAT THE PETITIONER HAD TO SWEAR THAT HIS INVENTION HAD NOT "BEEN
KNOWN OR USED EITHER IN THIS OR ANY FOREIGN COUNTRY."  THE ACT OF 1836
CHANGED THE KNOWLEDGE AND USE CLAUSE TO READ "NOT KNOWN OR USED BY
OTHERS BEFORE HIS OR THEIR DISCOVERY OR INVENTION THEREOF." 

THESE SUCCESSIVE ALTERATIONS THROW INTO RELIEF THE FACT THAT THE
WAS CONCEIVED ABROAD OR IN THIS COUNTRY.  THE TEST IS WHETHER THE
INVENTION WAS "KNOWN OR USED BY OTHERS IN THIS COUNTRY, BEFORE HIS
INVENTION OR DISCOVERY THEREOF  ...  "  THE ELEMENTS WHICH PRECLUDE
PATENTABILITY ARE A PATENT, OR A DESCRIPTION IN A PRINTED PUBLICATION
IN THIS OR ANY FOREIGN COUNTRY, WHICH ANTEDATES THE INVENTION OR
DISCOVERY OF THE APPLICANT. 

NONE OF THE STATUTES HAS EVER EMBODIED AS AN ELEMENT THE PLACE OF
INVENTION OR DISCOVERY, BUT THE CHANGE EFFECTED BY THE ACT OF 1836, AND
CARRIED FORWARD IN ALL SUCCEEDING STATUTES, IS THE FIXATION OF THE
ACTUAL DATE OF THE INVENTIVE ACT AS THE DATE PRIOR TO WHICH THE
INVENTION MUST HAVE BEEN KNOWN OR USED TO JUSTIFY DENIAL OF A PATENT
FOR WANT OF NOVELTY.  THE OMISSION OF ANY LIMITATION AS TO THE PLACE OF
INVENTION OR DISCOVERY PRECLUDES A RULING IMPOSING SUCH A LIMITATION,
ESPECIALLY SO SINCE THE ACT OF 1870 EXPRESSLY LIMITED THE AREA OF PRIOR
KNOWLEDGE OR USE TO THIS COUNTRY. 

THE PROVISIONS OF R.S. 4886 WHICH AFFECT THE QUESTION ARE NOT
MODIFIED BY R.S. 4887, THE PURPOSE OF WHICH IS TO PERMIT THE FILING OF
APPLICATIONS FOR THE SAME INVENTION IN FOREIGN COUNTRIES AND IN THE
UNITED STATES.  IT DERIVES FROM SEC. 25 OF THE ACT OF 1870.  FN13 

THE SECOND PARAGRAPH OF THE SECTION, WHICH WAS ADDED BY THE ACT OF
1903  FN14  TO COMPLY WITH RECIPROCAL AGREEMENTS WITH FOREIGN
COUNTRIES, GIVES THE SAME FORCE AND EFFECT TO THE FILING OF AN
APPLICATION IN A FOREIGN COUNTRY AS IT WOULD HAVE IF FILED HERE ON THE
DATE ON WHICH THE APPLICATION FOR PATENT WAS FIRST FILED IN THE FOREIGN
COUNTRY, PROVIDED THAT THE DOMESTIC APPLICATION IS FILED WITHIN TWELVE
MONTHS OF THE FOREIGN FILING DATE.  THE LAST SENTENCE OF THE PARAGRAPH
EXPRESSLY PRESERVES THE BARS OF MORE THAN TWO YEARS' PRIOR PATENTING,
DESCRIPTION IN A PRINTED PUBLICATION BEFORE THE FILING OF APPLICATION
IN THIS COUNTRY, AND PUBLIC USE, MORE THAN TWO YEARS BEFORE SUCH
FILING.  BUT THE SECTION DOES NOT CONTAIN ANY PROVISION WHICH PRECLUDES
PROOF OF FACTS RESPECTING THE ACTUAL DATE OF INVENTION IN A FOREIGN
COUNTRY TO OVERCOME THE PRIOR KNOWLEDGE OR USE BAR OF SEC. 4886. 

THE PETITIONER ALSO RELIES UPON R.S. 4923, WHICH PROVIDES THAT IF THE
PATENTEE, AT THE TIME OF HIS APPLICATION, BELIEVED HIMSELF THE ORIGINAL
OR FIRST INVENTOR, HIS PATENT SHALL NOT BE REFUSED OR HELD VOID BY
REASON OF THE INVENTION HAVING BEEN KNOWN OR USED IN A FOREIGN COUNTRY,
BEFORE HIS INVENTION OR DISCOVERY, IF IT HAD NOT BEEN PATENTED OR
DESCRIBED IN A PRINTED PUBLICATION.  THE EFFECT OF THIS SECTION IS THAT
IN AN INTERFERENCE BETWEEN TWO APPLICANTS FOR UNITED STATES PATENT, OR
IN AN INFRINGEMENT SUIT WHERE THE ALLEGED INFRINGER RELIES UPON A
UNITED STATES PATENT, THE APPLICATION AND PATENT FOR THE DOMESTIC
INVENTION SHALL HAVE PRIORITY DESPITE EARLIER FOREIGN KNOWLEDGE AND USE
NOT EVIDENCED BY A PRIOR PATENT OR A DESCRIPTION IN A PRINTED
PUBLICATION. 

THE SECTION, ON ITS FACE, IS WITHOUT APPLICATION WHERE THE LITIGATION
IS BETWEEN THE PATENTEE OF A FOREIGN INVENTION, OR HIS ASSIGNEE, AND AN
ALLEGED INFRINGER WHO DEFENDS ONLY IN VIRTUE OF PRIOR KNOWLEDGE OR USE
NOT COVERED BY A PATENT. 

WHILE THIS COURT HAS NEVER BEEN CALLED UPON TO DECIDE THE PRECISE
QUESTION PRESENTED, THE LOWER FEDERAL COURTS HAVE REFUSED TO EXTEND
SEC. 4923 TO SUCH A CASE.  THEY HAVE HELD THAT SEC. 4886 DOES NOT LIMIT
THE PLAINTIFF TO THE DATE OF APPLICATION IN THIS COUNTRY BUT THAT HE
MAY PROVE THE INVENTION WAS IN FACT MADE AT AN EARLIER DATE, AS COULD
THE OWNER OF AN INVENTION MADE IN THE UNITED STATES.  FN15 

THERE IS FORCE IN THE PETITIONER'S ARGUMENT THAT THE DISTINCTION
SEEMS ILLOGICAL.  THUS, IF A DILIGENT DOMESTIC INVENTOR APPLIES, IN
GOOD FAITH BELIEVING HIMSELF TO BE THE FIRST INVENTOR, SEC. 4923
ASSURES HIM A PATENT AND GIVES IT PRIORITY, DESPITE PRIOR FOREIGN USE,
EVEN THOUGH THAT USE IS EVIDENCED BY A PATENT APPLIED FOR AFTER THE
INVENTION MADE IN THIS COUNTRY.  THE FOREIGN APPLICANT OR PATENTEE
CANNOT CARRY THE DATE OF HIS INVENTION BACK OF THE DATE OF APPLICATION
IN THIS COUNTRY, AS THE HOLDER OF A LATER PATENT FOR AN INVENTION MADE
HERE WOULD BE PERMITTED TO DO IN ORDER TO ESTABLISH PRIORITY.  ON THE
OTHER HAND, A DOMESTIC INVENTOR WHO IS WILLING TO DEDICATE HIS
INVENTION TO THE PUBLIC MAY BE HELD AS AN INFRINGER BY REASON OF THE
LATER PATENTING OF AN INVENTION ABROAD WHICH ANTEDATES THE INVENTION
AND USE IN THIS COUNTRY; AND SO IS PUT IN A WORSE POSITION VIS A VIS A
FOREIGN INVENTOR WHO SUBSEQUENTLY SECURES A PATENT, AND SUCCEEDS IN
ESTABLISHING AN EARLIER DATE OF INVENTION, THAN HE WOULD OCCUPY IF HE
HAD PROMOTED HIS OWN INTEREST BY PROCURING A PATENT. 

WE HAVE NO WAY OF KNOWING WHETHER THE DISCRIMINATION RESULTS FROM
INADVERTENCE OR FROM SOME UNDISCLOSED LEGISLATIVE POLICY, BUT, IN ORDER
TO REDRESS THE DISADVANTAGE UNDER WHICH ONE IN THE PETITIONER'S
SITUATION SUFFERS, WE SHOULD HAVE TO READ INTO THE LAW WORDS WHICH
PLAINLY ARE MISSING.  FN16  WE CANNOT THUS REWRITE THE STATUTE.  FN17
MOREOVER SECS. 4886 AND 4887 HAVE REPEATEDLY BEEN AMENDED AND OTHER
PORTIONS OF THE PATENT ACT HAVE BEEN REVISED AND AMENDED FROM TIME TO
TIME SINCE THE DECISIONS POINTING OUT THAT SEC. 4886 DID NOT PREVENT
THE FOREIGN INVENTOR FROM CARRYING BACK HIS DATE OF INVENTION BEYOND
THE DATE OF HIS APPLICATION.  CONGRESS HAS NOT SEEN FIT TO AMEND THE
STATUTE IN THIS RESPECT AND WE MUST ASSUME THAT IT HAS BEEN SATISFIED
WITH, AND ADOPTED, THE CONSTRUCTION GIVEN TO ITS ENACTMENT BY THE
COURTS.  FN18 

WE ARE OF OPINION THAT THE COURTS BELOW WERE RIGHT IN NOT LIMITING
SHIMADZU'S DATE OF INVENTION TO THE DATE OF HIS APPLICATION BUT
ALLOWING HIM TO SHOW AN EARLIER ACTUAL DATE. 

SECOND.  A PATENT IS NOT VALIDLY ISSUED IF THE INVENTION "IS PROVED
TO HAVE BEEN ABANDONED."  FN19  ABANDONMENT MAY BE EVIDENCED BY THE
EXPRESS AND VOLUNTARY DECLARATION OF THE INVENTOR; FN20 IT MAY BE
INFERRED FROM NEGLIGENCE OR UNEXPLAINED DELAY IN MAKING APPLICATION FOR
PATENT; FN21 IT MAY BE DECLARED AS A CONSEQUENCE OF THE INVENTOR'S
CONCEALING HIS INVENTION AND DELAYING APPLICATION FOR PATENT IN AN
ENDEAVOR TO EXTEND THE TERM OF THE PATENT PROTECTION BEYOND THE PERIOD
FIXED BY THE STATUTE.  FN22  IN ANY CASE, THE QUESTION WHETHER THE
INVENTION HAS BEEN ABANDONED IS ONE OF FACT.  FN23    REFERRING TO A
JAPANESE PATENT APPLIED FOR NOVEMBER 27, 1920, AND ISSUED MAY 10, 1922,
THE DISTRICT COURT FOUND:  "WE ARE NOT CONCERNED WITH THE MOTIVES WHICH
PROMPTED HIM  ...  TO CONFINE IT (THE JAPANESE PATENT) TO THE SINGLE
STEP OF MECHANICAL REMOVAL OF THE DUST FROM THE DRUM, AND TO WITHHOLD
THE REALLY ESSENTIAL STEPS OF THE INVENTION FOR LATER PATENTING.  IT IS
SUFFICIENT TO SAY THAT HE HAD THE RIGHT TO DO THIS IF HE CHOSE."  TAKEN
IN CONNECTION WITH THE COURT'S FINDING THAT SHIMADZU'S INVENTIONS WERE
CONCEIVED AND REDUCED TO PRACTISE IN AUGUST 1919 THIS FINDING IS SAID
TO CONVICT HIM OF INTENTIONAL AND INEXCUSABLE CONCEALMENT.  IN THE
LIGHT OF THE RECORD WE ARE UNABLE SO TO HOLD.    R.S. 4920  FN24  MAKES
ABANDONMENT AN AFFIRMATIVE DEFENSE WHICH MUST BE PLEADED AND PROVED. 
FN25  ADMITTEDLY THE DEFENSE WAS NOT PLEADED AND THE RESPONDENTS
ASSERT, WITHOUT CONTRADICTION, THAT IT WAS NOT RELIED UPON IN BRIEF OR
ARGUMENT IN THE COURTS BELOW.  THE PETITIONER EXPLAINS ITS FAILURE SO
TO PLEAD BY SAYING THAT, WHEN IT FILED ITS ANSWER, IT BELIEVED THAT
CERTAIN OF THE JAPANESE PATENTS ISSUED TO SHIMADZU COVERED THE
IDENTICAL INVENTIONS DESCRIBED IN THE PATENTS IN SUIT AND INVALIDATED
THE LATTER BECAUSE APPLICATION WAS NOT MADE IN THIS COUNTRY WITHIN ONE
YEAR OF THE GRANT OF THE FOREIGN PATENTS AS REQUIRED BY R.S. 4887.  THE
CLAIM IS THAT THE REFUSAL TO SUSTAIN THIS DEFENSE AND THE ASSIGNMENT OF
AUGUST 1919 AS THE DATE OF INVENTION, TOOK PETITIONER BY SURPRISE; AND
THAT THE QUESTION OF SHIMADZU'S CONCEALMENT OF HIS INVENTION FROM 1919
UNTIL HE MADE HIS APPLICATIONS IN THE UNITED STATES DID NOT EMERGE
UNTIL THE DISTRICT COURT'S DECISION WAS RENDERED. 

WE THINK THIS IS NOT A SUFFICIENT EXCUSE FOR NOT PLEADING THE
DEFENSE.  ALTERNATIVE AND INCONSISTENT DEFENSES MAY BE PLEADED.  FN26
CERTAINLY IF THE PETITIONER WAS SURPRISED IT COULD AT LEAST HAVE
REQUESTED AN OPPORTUNITY TO AMEND ITS ANSWER.  IF THE DEFENSE HAD BEEN
PLEADED ORIGINALLY OR BY AMENDMENT THE RESPONDENTS WOULD HAVE HAD AN
OPPORTUNITY TO MEET IT BY PROOF AND THIS THEY APPEAR NOT TO HAVE BEEN
AFFORDED.  WE HAVE A FINDING WHICH SEEMS NOT TO HAVE BEEN ADDRESSED TO
THIS ISSUE; AND NO FINDINGS AS TO THE CIRCUMSTANCES WHICH LED TO THE
DELAY IN FILING APPLICATIONS.  IN THE CIRCUMSTANCES WE THINK WE ARE NOT
JUSTIFIED IN ASSIGNING TO THE FINDINGS BELOW THE FORCE OF A FINDING
THAT SHIMADZU, WITH INTENT, CONCEALED HIS INVENTION AND DELAYED MAKING
APPLICATIONS FOR THE PURPOSE OF UNDULY EXTENDING THE LIFE OF HIS
PATENTS, - A DEFENSE NOT PLEADED. 

THIRD.  IF A VALID PATENT IS TO ISSUE, THE INVENTION MUST NOT HAVE
BEEN IN PUBLIC USE IN THIS COUNTRY FOR MORE THAN TWO YEARS PRIOR TO THE
FILING OF THE APPLICATION.  FN27  SUCH PUBLIC USE IS AN AFFIRMATIVE
DEFENSE TO BE PLEADED AND PROVED.  FN28  THE RESPONDENTS INSIST THAT IT
WAS NOT PLEADED IN THIS CASE AND THAT THE FINDINGS RESPECTING THE
DEFENSE, ON WHICH THE PETITIONER RELIES, ARE UNSUPPORTED BY THE
EVIDENCE.  WE CANNOT AGREE WITH EITHER POSITION. 

ALTHOUGH NOT REQUIRED SO TO DO, THE RESPONDENTS IN THEIR BILL PLEADED
WITH RESPECT TO EACH OF THE PATENTS THAT THE INVENTION HAD NOT BEEN IN
PUBLIC USE FOR MORE THAN TWO YEARS BEFORE APPLICATION FILED.  THE
PETITIONER DENIED THE ALLEGATION AS TO EACH PATENT AND, IN ADDITION,
ALLEGED THAT IT WAS SUCCESSFULLY MAKING AND SELLING THE PRODUCT OF THE
INVENTION IN ITS PLANT LONG BEFORE IT EVER LEARNED OF SHIMADZU'S
EXISTENCE OR HIS INVENTIONS, AND FURTHER ASSERTED THAT "THE CLAIMS OF
SAID LETTERS PATENT ARE INVALID AND VOID BECAUSE THE SUBJECT MATTER
THEREOF WAS, PRIOR TO THE ALLEGED INVENTION THEREOF BY SHIMADZU, AND
FOR MORE THAN TWO YEARS PRIOR TO HIS APPLICATION DATES, KNOWN TO AND
USED BY THE DEFENDANT AT PHILADELPHIA, PENNSYLVANIA,  ...  "  UPON THE
TRIAL, EMPLOYES OF THE PETITIONER DESCRIBED AN EARLY APPARATUS AND
PROCESS USED IN 1918 AND 1919 AND ABANDONED IN THE LATTER YEAR WHEN
EXPERIMENTS BEGAN TOWARDS EMPLOYMENT OF THE APPARATUS AND PROCESS THE
PETITIONER NOW USES.  THEY TESTIFIED TO THE INCREASING PERFECTION OF
THE APPARATUS AND PROCESS DURING THE EARLY MONTHS OF 1921, AND THAT
COMMERCIAL PRODUCTION WAS ACCOMPLISHED SOMETIME BETWEEN APRIL AND JUNE
OF THAT YEAR.  FORMER EMPLOYES OF THE PETITIONER WERE CALLED BY THE
RESPONDENTS AND DESCRIBED THIS APPARATUS AND PROCESS AS USED AND
PRACTISED IN THE PETITIONER'S PLANT IN PHILADELPHIA SUBSEQUENT TO THE
DATE OF SHIMADZU'S APPLICATIONS, BUT THE EVIDENCE INDICATES THAT, AFTER
ITS PERFECTION IN 1921, THE SAME APPARATUS HAS BEEN USED, AND THE SAME
PROCESS PRACTISED, FROM THAT DATE TO THE PRESENT.  THIS IS THE
APPARATUS AND PROCESS WHICH THE COURTS BELOW HAVE HELD TO INFRINGE. 
THE DISTRICT COURT FOUND "COMMERCIAL PRODUCTION BY THE HARDINGE MILL
WITH ITS FORCED AIR DRAFT UNDOUBTEDLY INVOLVED THE USE OF THE
PLAINTIFF'S PATENT, AND JUNE, 1921, MAY BE FIXED AS THE DATE WHEN THAT
BEGAN."  THE RESPONDENTS INSIST THAT THIS DOES NOT AMOUNT TO A FINDING
OF PRIOR PUBLIC USE, DISTINGUISHING BETWEEN THE COURT'S PHRASE
"COMMERCIAL PRODUCTION" AND THE DESIGNATION "PUBLIC USE" FOUND IN THE
STATUTE.  WE THINK THE POSITION IS UNTENABLE. 

THE FINDING OF THE DISTRICT COURT APPEARS UNDER A HEADING IN ITS
OPINION ENTITLED "ALLEGED PRIOR PUBLIC USE."  AS ORIGINALLY PROMULGATED
THE FINDING FIXED JANUARY 1921 AS THE DATE OF COMMERCIAL PRODUCTION. 
THE RESPONDENTS SOUGHT A REHEARING AND ASKED THAT THE FINDING AS TO
COMMERCIAL PRODUCTION IN JANUARY 1921 BE REVISED.  A REHEARING WAS
GRANTED AND THE DISTRICT JUDGE FILED A MEMORANDUM AMENDING HIS
OPINION.  IN THIS HE SAID:  "AS TO THE SECOND STATEMENT OF FACT, IT MAY
BE SAID AT ONCE THAT IT WAS NEVER INTENDED BY THE COURT TO MAKE A
FINDING OF A PRIOR PUBLIC USE (IN THE STATUTORY SENSE OF THAT TERM) BY
THE DEFENDANT IN JANUARY 1921."  AFTER DISCUSSING THE USE OF THE
APPARATUS IN THE EARLY MONTHS OF 1921, THE COURT SAID:  "IT IS
THEREFORE PLAIN THAT THERE IS NO EVIDENCE OF ANYTHING BEYOND AN
EXPERIMENTAL USE BY THE DEFENDANT EARLIER THAN ABOUT THE MIDDLE OF THE
YEAR 1921.  IT IS ENTIRELY POSSIBLE THAT THE WORD 'JANUARY' IN THE
SECOND STATEMENT OF FACT REFERRED TO ABOVE IS A MERE TYPOGRAPHICAL
ERROR AND THAT WHAT THE COURT HAD IN MIND WAS, 'JUNE.'  HOWEVER THAT
MAY BE AND IN ORDER TO AVOID ANY POSSIBLE MISUNDERSTANDING AS TO THE
SCOPE OF THE FINDING, I WILL AMEND IT TO READ 'COMMERCIAL PRODUCTION BY
THE HARDINGE MILL WITH ITS FORCED AIR DRAFT UNDOUBTEDLY INVOLVED THE
USE OF THE PLAINTIFF'S PATENT, AND JUNE, 1921, MAY BE FIXED AS THE DATE
WHEN THAT BEGAN.'" 

BOTH PARTIES APPEALED TO THE CIRCUIT COURT OF APPEALS.  THAT THE
RESPONDENTS UNDERSTOOD THE FORCE AND EFFECT OF THE FINDING AS TO PRIOR
USE IS EVIDENT FROM THEIR ASSIGNMENTS, ONE OF WHICH IS THAT THE
DISTRICT COURT ERRED "IN FINDING AND ADJUDGING THAT COMMERCIAL
PRODUCTION BY THE HARDINGE MILL WITH ITS FORCED DRAFT INVOLVING THE USE
OF PLAINTIFF'S PATENT BEGAN IN JUNE 1921." 

IT REMAINS TO DETERMINE WHETHER THE COMMERCIAL USE FOUND IS, IN
CONTEMPLATION OF LAW, A PUBLIC USE WITHIN THE MEANING OF R.S. 4886.  WE
HOLD THAT IT IS. 

THE EARLIER ACTS PROVIDED THAT THE BAR SHOULD CONSIST IN PUBLIC USE
OR SALE "WITH THE APPLICANT'S CONSENT OR ALLOWANCE PRIOR TO THE
APPLICATION."  FN29  THE ACT OF 1839  FN30  ALTERED THE CLAUSE TO READ
"NO PATENT SHALL BE HELD TO BE INVALID" EXCEPT UPON PROOF THAT "SUCH
... PRIOR USE HAS BEEN FOR MORE THAN TWO YEARS PRIOR TO SUCH
APPLICATION FOR A PATENT."  THIS COURT CONSTRUED THE LATER ACT, WHICH
HAS BEEN CARRIED FORWARD INTO THE REVISED STATUTES, AS RENDERING PRIOR
PUBLIC USE A BAR WHETHER THE USE WAS WITH OR WITHOUT THE CONSENT OF THE
PATENTEE.  FN31 

DECISIONS TURNING ON PRIOR PUBLIC USE HAVE BEEN NUMEROUS BOTH IN THIS
COURT AND IN OTHER FEDERAL COURTS; AND THE DEFINITION OF SUCH USE,
FORMULATED WHEN THE STATUTE MADE ONLY USE BY CONSENT A BAR, HAS BEEN
ADOPTED IN INSTANCES WHERE THE USE WAS WITHOUT CONSENT OR KNOWLEDGE OF
THE APPLICANT FOR PATENT.  FN32 

A MERE EXPERIMENTAL USE IS NOT THE PUBLIC USE DEFINED BY THE ACT,
FN33  BUT A SINGLE USE FOR PROFIT, NOT PURPOSELY HIDDEN, IS SUCH.  FN34
THE ORDINARY USE OF A MACHINE OR THE PRACTISE OF A PROCESS IN A
FACTORY IN THE USUAL COURSE OF PRODUCING ARTICLES FOR COMMERCIAL
PURPOSES IS A PUBLIC USE.  FN35 

IN THE PRESENT CASE THE EVIDENCE IS THAT THE PETITIONER, SINCE JUNE
1921, HAS CONTINUOUSLY EMPLOYED THE ALLEGED INFRINGING MACHINE AND
PROCESS FOR THE PRODUCTION OF LEAD OXIDE POWDER USED IN THE MANUFACTURE
OF PLATES FOR STORAGE BATTERIES WHICH HAVE BEEN SOLD IN QUANTITY. 
THERE IS NO FINDING, AND WE THINK NONE WOULD HAVE BEEN JUSTIFIED, TO
THE EFFECT THAT THE MACHINE, PROCESS, AND PRODUCT WERE NOT WELL KNOWN
TO THE EMPLOYES IN THE PLANT, OR THAT EFFORTS WERE MADE TO CONCEAL THEM
FROM ANYONE WHO HAD A LEGITIMATE INTEREST IN UNDERSTANDING THEM.  FN36
THIS USE, BEGUN MORE THAN TWO YEARS BEFORE SHIMADZU APPLIED FOR PATENTS
1,584,150 AND 1,896,020, INVALIDATED THE CLAIMS IN SUIT. 

FOURTH.  THE DEFENSE OF PRIOR PUBLIC USE IS NOT MADE OUT AGAINST
PATENT 1,584,149, FOR WHICH APPLICATION WAS FILED JANUARY 30, 1922. 
THE DEFENDANT'S COMMERCIAL PRODUCTION COMMENCED ABOUT SIX MONTHS
EARLIER.  THE DISTRICT COURT HELD THE PATENT VALID AND INFRINGED.  ITS
CLAIMS COVER MERELY A PROCESS FOR THE PRODUCTION OF A FINELY DIVIDED
CHEMICALLY REACTIVE LEAD POWDER BY INTRODUCING RELATIVELY LARGE MASSES
OF LEAD INTO A ROTATABLE VESSEL, ROTATING THE VESSEL AT A RELATIVELY
LOW SPEED, FORMING THE POWDER BY ATTRITION RESULTING FROM THE RUBBING
OF THE MASSES AGAINST EACH OTHER, AND BLOWING THE POWDER FROM THE
VESSEL BY A CURRENT OF AIR.  THE PROCESS AND APPARATUS COVERED BY THE
OTHER TWO PATENTS IN ISSUE INVOLVE USE AND CONTROL OF AN AIR CURRENT
AND USE AND CONTROL OF TEMPERATURE WITHIN THE RECEPTACLE FOR THE
OXIDATION OF THE LEAD.  WITH RESPECT TO 1,584,149 THE TRIAL COURT
SAID: 

"WHETHER OR NOT '149 IS FOR THE SAME PROCESS AS U.S. PATENT '150 IS
IMMATERIAL, SO FAR AS THE QUESTION OF VALIDITY OF EITHER IS CONCERNED. 
THERE IS NO DOUBLE PATENTING INVOLVED.  THE TWO PATENTS ISSUED ON THE
SAME DAY.  THEY BOTH EXPIRED ON THE SAME DAY.  THERE CAN BE NO
EXTENSION OF THE MONOPOLY AND ONE IS NOT PRIOR ART AGAINST THE OTHER. 

"THE FACT THAT '149 DOES NOT DISCLOSE THE OXIDIZING FUNCTION OF THE
AIR OR REFER TO THE HIGHLY IMPORTANT ELEMENT OF THE PROCESS HAVING TO
DO WITH THE TEMPERATURE CONTROL NECESSARY TO ITS SUCCESSFUL OPERATION
MIGHT THROW DOUBT UPON ITS VALIDITY IN VIEW OF THE PRIOR ART. THIS IS,
OF COURSE, UPON THE ASSUMPTION THAT IT IS NOT FOR THE SAME INVENTION AS
'150.  THE WHOLE MATTER HOWEVER IS RATHER ACADEMIC SINCE '149 IS
COINCIDENT IN DURATION WITH '150, AND THE DEFENDANT'S PROCESS INFRINGES
THE SOMEWHAT MORE PRECISE, IF NOT NARROWER, CLAIMS OF '150. 

"THIS PATENT IS THEREFORE HELD VALID AND INFRINGED." 

THE HOLDING WAS ASSIGNED AS ERROR IN THE CIRCUIT COURT OF APPEALS AND
IS SPECIFIED AS ERROR IN THE PETITION FOR CERTIORARI. 

IN VIEW OF OUR DECISION AS TO 1,584,150 AND OF THE BASIS OF THE
DECISION BELOW RESPECTING 1,584,149, WE THINK THE PETITIONER IS
ENTITLED TO A REEXAMINATION OF THE QUESTIONS OF THE VALIDITY AND
INFRINGEMENT OF THE LATTER. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED AND THE
CAUSE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE
BILL AS TO NOS. 1,584,150 AND 1,896,020, AND TO PROCEED, IN THE LIGHT
OF THE DISMISSAL AS TO THOSE PATENTS, TO DETERMINE WHETHER 1,584,149 IS
VALID AND INFRINGED.  REVERSED. 

FN1

 PATENTS.                     DATE GRANTED     CLAIMS 

1,584,149.......................5/11/1926     1 AND 2 

1,584,150.......................5/11/1926     1-4, 6, 8-13 

1,896,020.......................1/31/1933     10 AND 11 

FN2  17 F.SUPP.  42. 

FN3  98 F.2D 831. 

FN4  AT THE TRIAL THE RESPONDENTS RELIED, TO SOME EXTENT, UPON AN
ADJUDICATION IN AN INTERFERENCE PROCEEDING BETWEEN SHIMADZU AND HALL,
AN EMPLOYE OF THE PETITIONER WHO IN 1924 APPLIED FOR A PATENT FOR A
PROCESS OF PRODUCING FINELY POWDERED MIXED LEAD AND LEAD OXIDE.  SEE
HALL V. SHIMADZU, 59 F.2D 225.  THE COURTS BELOW HAVE HELD THAT THIS
INTERFERENCE HAS NO BEARING UPON THE PRESENT CONTROVERSY AND THEIR
HOLDING IN THIS RESPECT INVOLVES QUESTIONS OF FACT.  AS THE RESPONDENTS
DID NOT CROSS-PETITION THEY MAY NOT, IN THIS COURT, ATTACK THE FINDINGS
IN QUESTION. 

FN5  U.S.C. TIT. 35, SECS. 31, 32, 72. 

FN6  THE SECTION WAS AMENDED BY THE ACT OF MAY 23, 1930, C. 312, SEC.
1, 46 STAT. 376, TO AUTHORIZE THE PATENTING OF INVENTIONS OF CERTAIN
PLANTS. 

FN7  ACT OF APRIL 10, 1790, SEC. 1, 1 STAT. 109. 

FN8  ACT OF FEB. 21, 1793, SEC. 1, 1 STAT. 318. 

FN9  ACT OF APRIL 17, 1800, SEC. 1, 2 STAT. 37. 

FN10  ACT OF JULY 4, 1836, SEC. 6, 5 STAT. 117, 119. 

FN11  ACT OF JULY 8, 1870, C. 230, SEC. 24, 16 STAT. 198, 201. 

FN12  ACT OF MARCH 3, 1897, C. 391, SEC. 1, 29 STAT. 692. 

FN13  SEC. 25, 16 STAT. 201. 

FN14  ACT OF MARCH 3, 1903, SEC. 1, C. 1019, 32 STAT. 1226. 

FN15  HANIFEN V. E.G. GODSHALK CO., 78 F. 811; WELSBACH LIGHT CO. V.
AMERICAN INCANDESCENT LAMP CO., 98 F. 613; BADISCHE ANILIN & SODA
FABRIK V. KLIPSTEIN & CO., 125 F. 543; CLAUDE NEON LIGHTS, INC. V.
RAINBOW LIGHT, INC., 47 F.2D 345. 

FN16  THE PETITIONER WOULD HAVE US INSERT IN SEC. 4886, FOR THE THIRD
TIME, THE WORDS "IN THIS COUNTRY" WHICH CONGRESS HAS TWICE INSERTED IN
THE SECTION BY AMENDMENT.  THE PETITIONER'S ARGUMENT REQUIRES US TO
READ THE SECTION AS IF THE PHRASE "IN THIS COUNTRY" APPEARED BETWEEN
THE WORDS "DISCOVERY THEREOF" AND THE WORDS "AND NOT PATENTED." 

FN17  DEWEY V. UNITED STATES, 178 U.S. 510. 

FN18  SESSIONS V. ROMADKA, 145 U.S. 29, 41-42; MANHATTAN PROPERTIES,
INC. V. IRVING TRUST CO., 291 U.S. 320, 336; UNITED STATES V. ELGIN, J.
& E. RY. CO., 298 U.S. 492, 500; MISSOURI V. ROSS, 299 U.S. 72, 75. 
FN19  R.S. 4886, SUPRA. 

FN20  KENDALL V. WINSOR, 21 HOW.  322, 329; U.S. RIFLE & CARTRIDGE
CO. V. WHITNEY ARMS CO., 118 U.S. 22, 25. 

FN21  CONSOLIDATED FRUIT-JAR CO. V. WRIGHT, 94 U.S. 92, 96; U.S.
RIFLE & CARTRIDGE CO. V. WHITNEY ARMS CO., SUPRA, P. 25. 

FN22  KENDALL V. WINSOR, SUPRA, P. 328; MACBETH-EVANS GLASS CO. V.
GENERAL ELECTRIC CO., 246 F. 695; BLISS CO. V. SOUTHERN CAN CO., 251 F.
903; VICTOR TALKING MACHINE CO. V. STARR PIANO CO., 281 F. 60.    FN23
PENNOCK V. DIALOGUE, 2 PET. 1, 16. 

FN24  U.S.C. TIT. 35, SEC. 69. 

FN25  CROWN CORK CO. V. GUTMANN CO., 304 U.S. 159, 165.  COMPARE MUMM
V. DECKER & SONS, 301 U.S. 168, 171. 

FN26  JONES V. SEWALL, 13 FED. CAS. 1017, 1028; SPECIALTY BRASS CO.
V. SETTE, 22 F.2D 964, 966; WALSH V. WAHLE CO., 25 F.2D 350, 351. 

FN27  R.S. 4886, SUPRA. 

FN28  R.S. 4920, SUPRA; KLEIN V. SEATTLE, 63 F. 702; HOOKLESS
FASTENER CO. V. ROGERS CO., 26 F.2D 264. 

FN29  ACT OF JULY 4, 1836, SEC. 7, 5 STAT. 117, 119. 

FN30  ACT OF MARCH 3, 1839, SEC. 7, 5 STAT. 353, 354. 

FN31  ANDREWS V. HOVEY, 123 U.S. 267; ON REHEARING, 124 U.S. 694. 

FN32  DETROIT LUBRICATOR CO. V. LUNKENHEIMER, 30 F. 190; UNITED
STATES ELECTRIC LIGHTING CO. V. EDISON LAMP CO., 51 F. 24, 28; FRONT
RANK STEEL FURNACE CO. V. WROUGHT IRON RANGE CO., 63 F. 995, 998; A.
SCHRADER'S SONS, INC. V. WEIN SALES CORP., 9 F.2D 306, 308; TWYMAN V.
RADIANT GLASS CO., 56 F.2D 119; IN RE MARTIN, 74 F.2D 951; PARAFFINE
CO. V. EVERLAST, INC., 84 F.2D 335; BECKER V. ELECTRIC SERVICE SUPPLIES
CO., 98 F.2D 366. 

FN33  ELIZABETH V. PAVEMENT CO., 97 U.S. 120, 134. 

FN34  CONSOLIDATED FRUIT-JAR CO. V. WRIGHT, SUPRA, 94; EGBERT V.
LIPPMANN, 104 U.S. 333, 336. 

FN35  MANNING V. CAPE ANN ISINGLASS CO., 108 U.S. 462, 465; TWYMAN V.
RADIANT GLASS CO., SUPRA; PARAFFINE CO. V. EVERLAST, SUPRA, PP. 338,
339. 

FN36  COMPARE HALL V. MACNEALE, 107 U.S. 90, 96-97. 
..END :













KESSLER V. STRECKER, 307 U.S. 22 


NO. 330.  ARGUED FEBRUARY 10, 13, 1939.  - DECIDED APRIL 17, 1939.  - 95
F.2D 976 - 96 ID. 1020, AFFIRMED, WITH MODIFICATION. 


1.  SECTION 1 OF THE ACT OF OCTOBER 16, 1918, AS AMENDED, PROVIDES
THAT ALIENS OF DESCRIBED CLASSES, INCLUDING "ALIENS WHO BELIEVE IN,
ADVISE, ADVOCATE, OR TEACH, OR WHO ARE MEMBERS OF OR AFFILIATED WITH
ANY ORGANIZATION, ASSOCIATION, SOCIETY, OR GROUP, THAT BELIEVES IN,
ADVISES, ADVOCATES, OR TEACHES  ...  THE OVERTHROW BY FORCE OR VIOLENCE
OF THE GOVERNMENT OF THE UNITED STATES  ...  ", SHALL BE EXCLUDED FROM
ADMISSION TO THE UNITED STATES.  SECTION 2 PROVIDES THAT "ANY ALIEN
WHO, AT ANY TIME AFTER ENTERING THE UNITED STATES, IS FOUND TO HAVE
BEEN AT THE TIME OF ENTRY, OR TO HAVE BECOME THEREAFTER, A MEMBER OF
ANY OF THE CLASSES OF ALIENS ENUMERATED" IN SECTION 1, SHALL, UPON
WARRANT OF THE SECRETARY OF LABOR, BE TAKEN INTO CUSTODY AND DEPORTED,
IN THE MANNER PROVIDED BY LAW. 

HELD THAT AN ALIEN WHO AFTER ENTRY BECOMES A MEMBER OF SUCH AN
ORGANIZATION IS NOT DEPORTABLE ON THAT GROUND IF AT THE TIME OF HIS
ARREST HIS MEMBERSHIP HAS CEASED.  P. 30. 

2.  THE LEGISLATIVE HISTORY OF THE STATUTE SUPPORTS THIS CONCLUSION. 
P. 30. 

3.  THIS READING OF THE STATUTE MAKES IT UNNECESSARY IN THIS CASE TO
PASS UPON THE ADEQUACY OF THE EVIDENCE BEFORE THE SECRETARY CONCERNING
THE PURPOSES AND AIMS OF THE COMMUNIST PARTY OR THE PROPRIETY OF THE
COURT'S TAKING JUDICIAL NOTICE THEREOF.  P. 33. 

4.  THE RECORD IN THIS CASE DOES NOT JUSTIFY REVERSAL OF A HOLDING OF
THE COURT BELOW THAT THE EVIDENCE BEFORE THE SECRETARY OF LABOR WAS
INSUFFICIENT TO SUPPORT HIS FINDING THAT THE RESPONDENT ALIEN BELIEVES
IN AND TEACHES THE OVERTHROW, BY FORCE AND VIOLENCE, OF THE GOVERNMENT
OF THE UNITED STATES.  P. 34. 

5.  WHEN NO ISSUE OF CITIZENSHIP IS RAISED, AN ADMINISTRATIVE ORDER
FOR DEPORTATION OF AN ALIEN MADE AFTER FAIR HEARING, BASED ON FINDINGS
SUPPORTED BY EVIDENCE AND WITHOUT ERROR OF LAW, IS CONCLUSIVE; IF ANY
OF THESE ELEMENTS WAS LACKING IT IS VOID.  THE MATTER CAN NOT BE TRIED
DE NOVO IN HABEAS CORPUS.  P. 34. 

KESSLER, DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION, V.
STRECKER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 305 U.S. 587, TO REVIEW THE REVERSAL OF A JUDGMENT
DISMISSING A WRIT OF HABEAS CORPUS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT IS AN ALIEN WHO ENTERED THE UNITED STATES IN 1912 AND
HAS SINCE RESIDED HERE.  IN 1933 HE APPLIED FOR NATURALIZATION TO A
UNITED STATES DISTRICT COURT IN ARKANSAS.  HE MADE CERTAIN ADMISSIONS
TO A DISTRICT DIRECTOR OF NATURALIZATION AS A RESULT OF WHICH
NATURALIZATION WAS WITHHELD AND HIS CASE WAS REFERRED TO THE DEPARTMENT
OF LABOR. 

NOVEMBER 25, 1933, THE SECOND ASSISTANT SECRETARY OF LABOR ISSUED A
WARRANT FOR THE RESPONDENT'S APPREHENSION, IN WHICH IT WAS RECITED THAT
HE WAS IN THE UNITED STATES IN VIOLATION OF LAW IN THAT (1) HE BELIEVES
IN, ADVISES, ADVOCATES OR TEACHES THE OVERTHROW, BY FORCE OR VIOLENCE,
OF THE GOVERNMENT OF THE UNITED STATES; (2) HE IS A MEMBER OF, OR
AFFILIATED WITH, AN ORGANIZATION, ASSOCIATION, SOCIETY, OR GROUP THAT
BELIEVES IN, ADVISES, ADVOCATES OR TEACHES THE OVERTHROW, BY FORCE OR
VIOLENCE, OF THE GOVERNMENT OF THE UNITED STATES; (3) HE IS A MEMBER
OF, OR AFFILIATED WITH, AN ORGANIZATION, ASSOCIATION, SOCIETY, OR GROUP
THAT WRITES, CIRCULATES, DISTRIBUTES, PRINTS, PUBLISHES OR DISPLAYS, OR
CAUSES TO BE WRITTEN, CIRCULATED, DISTRIBUTED, PRINTED, PUBLISHED OR
DISPLAYED, OR THAT HAS IN ITS POSSESSION FOR THESE PURPOSES WRITTEN OR
PRINTED MATTER ADVISING, ADVOCATING OR TEACHING THE OVERTHROW, BY FORCE
OR VIOLENCE, OF THE GOVERNMENT OF THE UNITED STATES; AND (4) AFTER HIS
ENTRY INTO THE UNITED STATES HE HAS BEEN FOUND TO HAVE BECOME A MEMBER
OF ONE OF THE CLASSES OF ALIENS ENUMERATED IN SEC. 1 OF THE ACT OF
OCTOBER 16, 1918, AS AMENDED BY THE ACT OF JUNE 5, 1920, TO WIT:  AN
ALIEN WHO IS A MEMBER OF, OR AFFILIATED WITH, AN ORGANIZATION,
ASSOCIATION, SOCIETY OR GROUP THAT BELIEVES IN, ADVISES OR TEACHES THE
OVERTHROW, BY FORCE AND VIOLENCE, OF THE GOVERNMENT OF THE UNITED
STATES. 

THE RESPONDENT WAS APPREHENDED AND WAS GIVEN HEARINGS BEFORE AN
IMMIGRATION INSPECTOR, AT WHICH HE WAS REPRESENTED BY COUNSEL AND
TESTIFIED IN HIS OWN BEHALF.  THE GOVERNMENT OFFERED IN EVIDENCE
TRANSCRIPTS OF HIS EXAMINATION BY THE NATURALIZATION BUREAU, OF AN
INTERVIEW WITH HIM BY AN IMMIGRATION INSPECTOR, AND HIS MEMBERSHIP BOOK
IN THE COMMUNIST PARTY OF THE U.S.A., ISSUED NOVEMBER 15, 1932, WITH
STAMPS AFFIXED SHOWING PAYMENT OF DUES TO THE END OF FEBRUARY, 1933. 
THE RULES OF THE PARTY, SET FORTH IN THE BOOK, PROVIDED THAT FAILURE TO
PAY DUES FOR THREE MONTHS AUTOMATICALLY RESULTS IN THE LOSS OF
MEMBERSHIP, AND IT IS ADMITTED THERE IS NO EVIDENCE RESPONDENT
CONTINUED TO BE A MEMBER AFTER MARCH 1, 1933. 

THE BOOK CONTAINED PRINTED MATTER STATING THE PURPOSES AND OBJECTS OF
THE PARTY.  THE GOVERNMENT ALSO OFFERED A COPY OF A MAGAZINE CALLED
"THE COMMUNIST," DATED APRIL 1934, AND READ INTO THE RECORD EXCERPTS
FROM ARTICLES APPEARING THEREIN.  THE RESPONDENT ADMITTED THAT HE
JOINED THE COMMUNIST PARTY IN NOVEMBER 1932, ASSERTED THAT HIS
MEMBERSHIP TERMINATED PRIOR TO MARCH 1, 1933, AND HAD NEVER BEEN
RENEWED, AND PROFESSED IGNORANCE OF THE MAGAZINE CALLED "THE COMMUNIST"
AND ITS CONTENTS.  IN SOME RESPECTS HIS TESTIMONY AS TO HIS BELIEFS AND
ACTIONS WAS CONTRADICTORY OF HIS STATEMENTS ON PRIOR EXAMINATIONS, AND
TESTIMONY WAS ELICITED FROM HIM IN AN EFFORT TO SHOW THAT HIS DENIAL OF
PRESENT AFFILIATION WITH THE COMMUNIST PARTY MIGHT NOT BE MADE IN GOOD
FAITH; BUT THERE WAS NO SUFFICIENT EVIDENCE TO SUSTAIN THAT
CONCLUSION.  AFTER A REVIEW OF THE RECORD BY THE BOARD OF REVIEW OF THE
DEPARTMENT OF LABOR, A WARRANT OF DEPORTATION WAS ISSUED BY THE
ASSISTANT SECRETARY WHICH RECITES AN AFFIRMATIVE FINDING AS TO EACH OF
THE COUNTS IN THE WARRANT OF ARREST AND ORDERS THE RESPONDENT'S
DEPORTATION.  FN1 

THE RESPONDENT PETITIONED A FEDERAL DISTRICT COURT IN ARKANSAS FOR A
WRIT OF HABEAS CORPUS TO DELIVER HIM FROM THE CUSTODY OF THE
IMMIGRATION INSPECTOR.  THE WRIT WAS DENIED.  THEREAFTER HE FILED THE
PETITION IN THE INSTANT CASE IN THE DISTRICT COURT FOR LOUISIANA.  IN
THIS PETITION HE ALLEGED THAT HE HAD NOT BEEN ACCORDED A FAIR HEARING;
THAT THE DEPARTMENT OF LABOR HAD NOT CORRECTLY CONSTRUED THE
IMMIGRATION LAWS APPLICABLE TO HIS CASE; THAT THE FINDINGS WERE WITHOUT
SUPPORT IN THE EVIDENCE; THAT HE HAD BEEN DENIED DUE PROCESS OF LAW,
AND THAT HE IS NOT A CITIZEN OF POLAND, TO WHICH THE WARRANT DIRECTED
HIS REMISSION.  THE DISTRICT COURT DISMISSED THE WRIT.  THE RESPONDENT
APPEALED TO THE CIRCUIT COURT OF APPEALS ASSIGNING ERROR TO THE
DISTRICT COURT'S ACTION IN DENYING EACH OF HIS CONTENTIONS.  THAT COURT
FOUND THAT THE HEARINGS HAD BEEN FAIR, BUT HELD THAT EACH OF THE
FINDINGS RECITED IN THE WARRANT WAS WITHOUT SUPPORT IN THE EVIDENCE. 
THE COURT WAS OF OPINION THE EVIDENCE FAILED TO SHOW THAT THE
RESPONDENT IS NOW A MEMBER OF THE COMMUNIST PARTY OR THAT HE OR THAT
PARTY, IN 1933, TAUGHT, ADVOCATED, OR INCITED THE OVERTHROW OF THE
GOVERNMENT BY FORCE AND VIOLENCE, AND THAT THE RECORD WAS BARE OF
EVIDENCE TO COUNTERVAIL HIS DENIAL THAT HE HAD EVER TAUGHT OR BELIEVED
IN THE UNLAWFUL DESTRUCTION OR OVERTHROW OF THE GOVERNMENT BY FORCE. 
THE COURT HELD THAT THE ACTS OF 1918 AND 1920 WERE PASSED TO MEET A
SITUATION CAUSED BY CRISES IN RUSSIA IN 1918 AND 1919; FN2  THAT THE
MAJOR CHANGES IN POLICY AND CONDUCT OF THE SOVIET SOCIALIST REPUBLICS
WHICH HAD TAKEN PLACE BETWEEN 1918 AND 1933 REBUTTED THE IMPLICATIONS
ARISING FROM MEMBERSHIP IN THE COMMUNIST PARTY AT THE TIME THE ACTS
WERE ADOPTED; THAT MERE MEMBERSHIP IN THAT PARTY IN 1933 IS NOT A
STATUTORY GROUND FOR DEPORTATION.  THE ORDER OF THE DISTRICT COURT WAS
REVERSED AND THE CAUSE WAS REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THE OPINION.  FN3 

THE GOVERNMENT MOVED FOR A REHEARING, PRESSING SPECIALLY THE
CONTENTION THAT THE OVERWHELMING WEIGHT OF AUTHORITY IS TO THE EFFECT
THAT MEMBERSHIP IN THE COMMUNIST PARTY IS SUFFICIENT TO WARRANT
DEPORTATION.  THE PETITION WAS ENTERTAINED, THE JUDGMENT WAS AMENDED TO
PROVIDE: "REVERSED, WITH DIRECTIONS TO TRY THE ISSUES DE NOVO AS
SUGGESTED IN EX PARTE FIERSTEIN, 41 FED.(2D) P. 54"; AND A REHEARING
WAS DENIED.  FN4  JUDGE SIBLEY DISSENTED ON THE GROUND THAT ON THE
BASIS OF THE RESPONDENT'S MEMBERSHIP BOOK WHICH REFERS TO THE THIRD
COMMUNIST INTERNATIONALE, THE COURT COULD TAKE JUDICIAL NOTICE OF THE
OBJECTIVES AND PROGRAMS OF THE COMMUNIST PARTY AND THE THIRD
INTERNATIONALE. 

THE UNITED STATES PETITIONED FOR CERTIORARI, ASSERTING THAT THE
SINGLE QUESTION PRESENTED IS "WHETHER THE COURT BELOW ERRED IN FAILING
TO SUSTAIN AN ORDER OF DEPORTATION AGAINST RESPONDENT, AN ALIEN WHO IN
1932 BECAME A MEMBER OF THE COMMUNIST PARTY OF THE UNITED STATES."  IN
ITS SPECIFICATION OF ERRORS TO BE URGED THE GOVERNMENT ENUMERATED (1)
THE HOLDING THAT AN ALIEN WHO BECAME A MEMBER OF THE PARTY IN 1932 IS
NOT, BY REASON OF THAT FACT, SUBJECT TO DEPORTATION; (2) THE HOLDING
THAT THE EVIDENCE BEFORE THE SECRETARY OF LABOR CONCERNING THE
PRINCIPLES OF THE PARTY WAS INSUFFICIENT TO SUSTAIN THE ORDER; (3) THE
REMAND FOR A TRIAL DE NOVO IN THE DISTRICT COURT, AND (4) THE FAILURE
TO AFFIRM THE JUDGMENT OF THE DISTRICT COURT.  AS REASON FOR THE
GRANTING OF THE WRIT THE GOVERNMENT URGED A CONFLICT OF DECISION ON THE
QUESTION WHETHER MEMBERSHIP BY AN ALIEN IN THE COMMUNIST PARTY OF
AMERICA SUBJECTS HIM TO DEPORTATION.  BY REASON OF THE ALLEGATION OF
CONFLICT AND THE ACTION OF THE CIRCUIT COURT OF APPEALS IN ORDERING A
TRIAL DE NOVO IN THE DISTRICT COURT, WE GRANTED THE WRIT. 

THE GOVERNMENT DOES NOT ATTEMPT TO SUPPORT THE WARRANT OF DEPORTATION
ON THE SECOND AND THIRD GROUNDS THEREIN SPECIFIED, NAMELY, THAT THE
RESPONDENT "IS A MEMBER OF OR AFFILIATED WITH" AN ORGANIZATION
DESCRIBED IN THE ACT.  THE ONLY EVIDENCE OF RECORD IS THAT HIS
MEMBERSHIP CEASED MONTHS BEFORE THE ISSUE OF THE WARRANT FOR HIS
ARREST.  THE CONTENTION IS THAT RESPONDENT IS DEPORTABLE BECAUSE, AFTER
ENTRY, HE BECAME A MEMBER OF A CLASS OF ALIENS DESCRIBED IN SEC. 1 OF
THE ACT, TO WIT, A MEMBER OF THE COMMUNIST PARTY, AN ORGANIZATION
MEMBERSHIP IN WHICH IS MADE A CAUSE OF DEPORTATION BECAUSE THE
ORGANIZATION BELIEVES IN, ADVOCATES, AND TEACHES THE OVERTHROW OF THE
GOVERNMENT OF THE UNITED STATES BY FORCE AND VIOLENCE.  THIS CONTENTION
PRESENTS THE QUESTION WHETHER THE ACT RENDERS FORMER MEMBERSHIP IN SUCH
AN ORGANIZATION, WHICH HAS CEASED, A GROUND OF DEPORTATION.  RESPONDENT
INSISTS THAT THE STATUTE MAKES ONLY PRESENT MEMBERSHIP IN AN
ORGANIZATION DESCRIBED IN THE ACT SUCH GROUND. 

TO DO WITH THE EXCLUSION OF ALIEN IMMIGRANTS AND SPECIFIES FIVE
CLASSES, MEMBERS OF WHICH MAY NOT BE ADMITTED TO THE UNITED STATES. 
ONE OF THESE CLASSES - SUBSECTION (C) - INCLUDES "ALIENS WHO BELIEVE
IN, ADVISE, ADVOCATE, OR TEACH, OR WHO ARE MEMBERS OF OR AFFILIATED
WITH ANY ORGANIZATION, ASSOCIATION, SOCIETY, OR GROUP, THAT BELIEVES
IN, ADVISES, ADVOCATES, OR TEACHES  ...  THE OVERTHROW BY FORCE OR
VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES.  ...  " 

OF 1920, DEALS WITH DEPORTATION.  IT PROVIDES THAT "ANY ALIEN WHO, AT
ANY TIME AFTER ENTERING THE UNITED STATES, IS FOUND TO HAVE BEEN AT THE
TIME OF ENTRY, OR TO HAVE BECOME THEREAFTER, A MEMBER OF ANY OF THE
CLASSES OF ALIENS ENUMERATED" IN SEC. 1, SHALL, UPON WARRANT OF THE
SECRETARY OF LABOR, BE TAKEN INTO CUSTODY AND DEPORTED, IN THE MANNER
PROVIDED BY LAW. 

RELYING ON THE PHRASES ITALICIZED IN THE QUOTATION, THE GOVERNMENT
INSISTS THAT THE SECTION EMBRACES AN ALIEN WHO, AFTER ENTRY, HAS BECOME
A MEMBER OF AN ORGANIZATION, MEMBERSHIP IN WHICH, AT THE TIME OF HIS
ENTRY, WOULD HAVE WARRANTED HIS EXCLUSION, ALTHOUGH HE HAS CEASED TO BE
A MEMBER AT THE TIME OF HIS ARREST.  WE HOLD THAT THE ACT DOES NOT
PROVIDE FOR THE DEPORTATION OF SUCH AN ALIEN.  THIS CONCLUSION RESTS
NOT ALONE UPON THE LANGUAGE, BUT, AS WELL, UPON THE CONTEXT AND THE
HISTORY OF THE LEGISLATION. 

THE PHRASE "AT ANY TIME" QUALIFIES THE VERB "FOUND."  THUS, IF AT ANY
TIME THE SECRETARY FINDS THAT AT ENTRY THE ALIEN WAS A MEMBER, OR HAS
THEREAFTER BECOME AND IS A MEMBER, HE MAY BE DEPORTED.  THE NATURAL
MEANING IS THAT, AS THE ALIEN WAS EXCLUDABLE FOR PRESENT MEMBERSHIP, HE
IS DEPORTABLE FOR PRESENT MEMBERSHIP SUBSEQUENTLY ACQUIRED.  THE
GOVERNMENT'S CONSTRUCTION, WHICH COLLOCATES THE PHRASE "AT ANY TIME"
WITH THE PHRASE "OR TO HAVE BECOME THEREAFTER" IS UNNATURAL AND
STRAINED.  IF CONGRESS MEANT THAT PAST MEMBERSHIP, OF NO MATTER HOW
SHORT DURATION OR HOW FAR IN THE PAST, WAS TO BE A CAUSE OF PRESENT
DEPORTATION THE PURPOSE COULD HAVE BEEN CLEARLY STATED.  THE SECTION
DOES NOT BEAR THIS IMPORT. 

BY THE FIRST SECTION OF THE ACT, AS AMENDED IN 1920, ALIENS ARE TO BE
EXCLUDED WHO ARE MEMBERS OF A DESCRIBED ORGANIZATION.  THE SECTION DOES
NOT REQUIRE THE EXCLUSION OF THOSE WHO HAVE BEEN IN THE PAST, BUT ARE
NO LONGER, MEMBERS.  WHEN THE CONGRESS CAME TO PROVIDE FOR DEPORTATION,
INSTEAD OF AGAIN ENUMERATING AND DEFINING THE VARIOUS CLASSES OF ALIENS
WHO MIGHT BE DEPORTED, IT PROVIDED THAT IF AT ANY TIME IT SHOULD BE
FOUND THAT AN ALIEN HAD BEEN ADMITTED AND, AT THE TIME OF ADMISSION,
WAS A MEMBER OF ANY OF THE PROSCRIBED CLASSES, OR HAD THEREAFTER BECOME
SUCH, HE SHOULD BE DEPORTED.  IT IS NOT TO BE SUPPOSED THAT PAST
MEMBERSHIP, WHICH DOES NOT BAR ADMISSION, WAS INTENDED TO BE A CAUSE OF
DEPORTATION.  AND THE FACT THAT NATURALIZATION IS DENIED TO AN ALIEN
ONLY ON THE GROUND THAT HE "IS A MEMBER OF OR AFFILIATED WITH ANY
ORGANIZATION ENTERTAINING" DISBELIEF IN OR OPPOSITION TO ORGANIZED
GOVERNMENT, AND NOT FOR PAST MEMBERSHIP OR AFFILIATION, FN7  LENDS
ADDED FORCE TO THIS VIEW. 

IN THE ABSENCE OF A CLEAR AND DEFINITE EXPRESSION, WE ARE NOT AT
LIBERTY TO CONCLUDE THAT CONGRESS INTENDED THAT ANY ALIEN, NO MATTER
HOW LONG A RESIDENT OF THIS COUNTRY, OR HOWEVER WELL DISPOSED TOWARD
OUR GOVERNMENT, MUST BE DEPORTED, IF AT ANY TIME IN THE PAST, NO MATTER
WHEN, OR UNDER WHAT CIRCUMSTANCES, OR FOR WHAT TIME, HE WAS A MEMBER OF
THE DESCRIBED ORGANIZATION.  IN THE ABSENCE OF SUCH EXPRESSION WE
CONCLUDE THAT IT IS THE PRESENT MEMBERSHIP, OR PRESENT OFFILIATION - A
FACT TO BE DETERMINED ON EVIDENCE - WHICH BARS ADMISSION, BARS
NATURALIZATION, AND REQUIRES DEPORTATION.  SINCE THE STATUTE DEALS NOT
ONLY WITH MEMBERSHIP IN AN ORGANIZATION OF THE DESCRIBED CLASS, BUT
WITH AFFILIATION THEREWITH AND, AS WELL, WITH BELIEF AND TEACHING, IT
ENABLES THE SECRETARY OF LABOR, AS TRIER OF THE FACTS, FULLY TO
INVESTIGATE AND TO FIND THE TRUE RELATION, BELIEF AND ACTIVITY OF THE
ALIEN UNDER INVESTIGATION. 

THE LEGISLATIVE HISTORY OF THE STATUTE SUPPORTS THIS CONCLUSION.  BY
ACT OF MARCH 3, 1903, FN8 CONGRESS DIRECTED THE EXCLUSION OF
"ANARCHISTS, OR PERSONS WHO BELIEVE IN OR ADVOCATE THE OVERTHROW BY
FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES,  ..."  FN9
AND ALSO OF ANY "PERSON WHO DISBELIEVES IN OR WHO IS OPPOSED TO ALL
ORGANIZED GOVERNMENT, OR WHO IS A MEMBER OF OR AFFILIATED WITH ANY
ORGANIZATION ENTERTAINING AND TEACHING SUCH DISBELIEF IN OR OPPOSITION
TO ALL ORGANIZED GOVERNMENT  ..."  FN10  THE ONLY SECTION AUTHORIZING
DEPORTATION OF SUCH PERSONS IS DIRECTED TO AN ALIEN FOUND TO HAVE
ENTERED IN VIOLATION OF THE ACT, IF PROCEEDED AGAINST WITHIN THREE
YEARS AFTER ENTRY.  FN11  THESE PROVISIONS WERE REENACTED WITHOUT
ALTERATION IN THE ACT OF FEBRUARY 20, 1907.  FN12    THE FIRST
LEGISLATION AUTHORIZING DEPORTATION OF PERSONS WHO HAD ENTERED LAWFULLY
IS HR. 6060, ENACTED BY THE 63RD CONGRESS BUT VETOED BY PRESIDENT
WILSON JANUARY 28, 1915.  FN13  THIS BILL REQUIRED DEPORTATION OF "ANY
ALIEN WHO WITHIN FIVE YEARS AFTER ENTRY SHALL BE FOUND ADVOCATING OR
TEACHING" THE DEFINED DOCTRINES.  IT ALSO ALTERED EXISTING LAW IN
RESPECT OF DEPORTATION OF THOSE WHO HAD ENTERED ILLEGALLY TO PROVIDE
THAT "AT ANY TIME WITHIN FIVE YEARS AFTER ENTRY, ANY ALIEN WHO AT THE
TIME OF ENTRY WAS A MEMBER OF ONE OR MORE OF THE CLASSES EXCLUDED BY
LAW" SHOULD BE DEPORTED. 

A BILL, IN SUBSTANCE THE SAME, WAS INTRODUCED IN THE 64TH CONGRESS
AND ENACTED FEBRUARY 5, 1917, OVER PRESIDENTIAL VETO.  FN14  WHILE THIS
MEASURE WAS IN COURSE OF PASSAGE, THE CHAIRMAN OF THE HOUSE COMMITTEE
IN CHARGE OF IT MOVED, ON BEHALF OF THE COMMITTEE, TO AMEND SEC. 19 BY
INSERTING THE PHRASE "AT ANY TIME" SO THAT THE SECTION SHOULD PROVIDE
FOR DEPORTATION OF "ANY ALIEN WHO AT ANY TIME AFTER ENTRY SHALL BE
FOUND ADVOCATING OR TEACHING" FORCIBLE OVERTHROW OF THE GOVERNMENT. 
THE ACT, AS ADOPTED, WAS IN THIS FORM.  THE PURPOSE OF THE AMENDMENT
WAS TO MAKE PLAIN THAT NO TIME LIMIT WAS FIXED FOR DEPORTATION OF
ALIENS FOUND ADVOCATING THE DOCTRINE.  FN15  THE ACT OF 1917 WAS
AMENDED BY THAT OF OCTOBER 16, 1918, HERE UNDER CONSIDERATION, WHICH,
BY ITS TITLE, PURPORTED TO APPLY TO "ALIENS WHO ARE MEMBERS OF THE
ANARCHISTIC AND SIMILAR CLASSES.  ...  " 

ADDITION OF THE WORDS "ALIENS WHO ARE MEMBERS OF OR AFFILIATED WITH ANY
ORGANIZATION THAT ENTERTAINS A BELIEF IN, TEACHES OR ADVOCATES THE
OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES. 
...  " SECTION 2 MODIFIED THE EARLIER ACT IN RESPECT OF DEPORTATION,
BOTH IN FORM AND SUBSTANCE.  THE PROVISION FOR DEPORTATION OF THOSE
WHO, AT THE TIME OF ENTRY, WERE MEMBERS OF ONE OF THE PROSCRIBED
CLASSES WAS RETAINED, BUT THE FIVE YEAR PERIOD OF LIMITATION WITHIN
WHICH DEPORTATION MIGHT BE HAD WAS ELIMINATED.  FN16  THE PROVISION FOR
DEPORTATION OF ALIENS OF ANARCHISTIC AND SIMILAR CLASSES WAS EXPANDED
BY INCLUDING AS CAUSES OF DEPORTATION ALL THE CAUSES OF EXCLUSION
ENUMERATED IN SEC. 1 WHICH WERE THEMSELVES MUCH BROADER THAN THOSE
INCLUDED IN THE 1917 ACT.  THUS, ALTHOUGH THERE WAS NO PROVISION IN THE
ACT OF 1917 FOR DEPORTATION OF ALIENS WHO DID NOT PERSONALLY ADVOCATE
THE PROSCRIBED DOCTRINE, BUT WERE MEMBERS OF AN ORGANIZATION WHICH DID,
THE ACT OF 1918 EMBODIED SUCH A PROVISION.  THIS ALTERATION, AND THE
ELIMINATION OF THE FIVE YEAR TIME LIMITATION, WERE THE IMPORTANT
CHANGES, RELEVANT TO THE QUESTION UNDER EXAMINATION, WHICH THE ACT OF
1918 EFFECTED IN THE EARLIER LEGISLATION.  THESE MODIFICATIONS LEND NO
SUPPORT TO THE CONTENTION THAT SEC. 2 OF THE ACT OF 1918 WAS INTENDED
TO MAKE QUONDAM MEMBERSHIP A GROUND OF DEPORTATION. 

NOR IS THERE ANYTHING IN THE FORMAL ALTERATION WORKED BY THE ACT OF
1918 WHICH LEADS TO A DIFFERENT CONCLUSION.  SECTION 19 OF THE ACT OF
1917 DEALT IN DISTINCT CLAUSES WITH THE VARIOUS CLASSES OF ALIENS WHO
MIGHT BE DEPORTED, SPECIFYING IN ONE CLAUSE AN ALIEN "WHO AT THE TIME
OF ENTRY WAS A MEMBER OF THE CLASSES EXCLUDED BY LAW" AND, IN ANOTHER
CLAUSE, AN ALIEN "WHO, AT ANY TIME AFTER ENTRY, SHALL BE FOUND
ADVOCATING OR TEACHING" THE OBNOXIOUS DOCTRINES.  SECTION 2 OF THE ACT
OF 1918 COMBINED THE CLAUSES DEALING WITH THE TWO GROUPS IN A SINGLE
SENTENCE, WITH A SOMEWHAT DIFFERENT LOCUTION.  WE THINK THIS
CONSOLIDATION WAS NOT INTENDED TO ALTER THE SUBSTANTIVE LAW AS IT
THERETOFORE STOOD. 

THE ONLY DECISIONS WHICH SUPPORT THE GOVERNMENT'S POSITION ARE THOSE
IN THE SECOND CIRCUIT.  FN17  WE CANNOT APPROVE THEIR REASONING OR
RESULT.  IT IS CLAIMED THAT THE ADMINISTRATIVE CONSTRUCTION HAS ALWAYS
ACCORDED WITH THE GOVERNMENT'S CONTENTION IN THE PRESENT CASE.  WE
CANNOT FIND THAT THERE HAS BEEN SUCH A UNIFORM CONSTRUCTION AS REQUIRES
AN INTERPRETATION OF THE ACT IN ACCORDANCE WITH THAT VIEW.  THE
ADMINISTRATIVE CONSTRUCTION SEEMS TO HAVE BEEN IN FAVOR OF THE
RESPONDENT'S VIEW UNTIL AFTER THE DECISION IN THE YOKINEN CASE,  FN18
AND THE CONSTRUCTION SEEMS TO HAVE BEEN CHANGED IN DEFERENCE TO THE
DECISION IN THAT CASE.  FN19 

OUR READING OF THE STATUTE MAKES IT UNNECESSARY TO PASS UPON THE
CONFLICTING CONTENTIONS OF THE PARTIES CONCERNING THE ADEQUACY OF THE
EVIDENCE BEFORE THE SECRETARY CONCERNING THE PURPOSES AND AIMS OF THE
COMMUNIST PARTY OR THE PROPRIETY OF THE COURT'S TAKING JUDICIAL NOTICE
THEREOF. 

THE SOLICITOR GENERAL SUGGESTS THAT THE EVIDENCE IS SUFFICIENT TO
SUSTAIN THE WARRANT OF DEPORTATION ON THE FIRST GROUND THEREIN STATED,
NAMELY, THAT THE RESPONDENT BELIEVES IN AND TEACHES THE OVERTHROW, BY
FORCE AND VIOLENCE, OF THE GOVERNMENT OF THE UNITED STATES.  IT IS SAID
THAT THE ERROR OF THE CIRCUIT COURT OF APPEALS IN REVERSING THE
DISTRICT COURT IS, IN THIS ASPECT, SO PLAIN THAT WE SHOULD NOTICE IT,
ALTHOUGH THE PETITION DOES NOT PRESENT THE QUESTION.  WE HAVE THE POWER
TO DO THIS IN THE CASE OF PLAIN ERROR,  FN20  BUT WE EXERCISE IT ONLY
IN CLEAR CASES AND IN EXCEPTIONAL CIRCUMSTANCES. 

WE DO NOT KNOW ON WHAT GROUNDS THE DISTRICT JUDGE'S ACTION RESTED
SINCE HE WROTE NO OPINION.  THE CIRCUIT COURT OF APPEALS HELD THE
EVIDENCE INSUFFICIENT TO SUPPORT THE SECRETARY'S FINDING.  WE THINK
THAT THE RECORD DOES NOT JUSTIFY A REVERSAL OF THE HOLDING OF THE COURT
BELOW UPON THIS POINT. 

THE CIRCUIT COURT OF APPEALS REMANDED THE CAUSE TO THE DISTRICT COURT
FOR A TRIAL DE NOVO.  IN THIS WE THINK THERE WAS ERROR.  THE PROCEEDING
FOR DEPORTATION IS ADMINISTRATIVE.  FN21  IF THE HEARING WAS FAIR, IF
THERE WAS EVIDENCE TO SUPPORT THE FINDING OF THE SECRETARY, AND IF NO
ERROR OF LAW WAS COMMITTED, THE RULING OF THE DEPARTMENT MUST STAND AND
CANNOT BE CORRECTED IN JUDICIAL PROCEEDINGS.  FN22  IF, ON THE OTHER
HAND, ONE OF THE ELEMENTS MENTIONED IS LACKING, THE PROCEEDING IS VOID
AND MUST BE SET ASIDE.  FN23  A DISTRICT COURT CANNOT UPON HABEAS
CORPUS, PROCEED DE NOVO, FOR THE FUNCTION OF INVESTIGATION AND FINDING
HAS NOT BEEN CONFERRED UPON IT BUT UPON THE SECRETARY OF LABOR.  ONLY
IN THE EVENT AN ALLEGED ALIEN ASSERTS HIS UNITED STATES CITIZENSHIP IN
THE HEARING BEFORE THE DEPARTMENT, AND SUPPORTS HIS CLAIM BY
SUBSTANTIAL EVIDENCE, IS HE ENTITLED TO A TRIAL DE NOVO OF THAT ISSUE
IN THE DISTRICT COURT.  FN24  THE STATUS OF THE RELATOR MUST BE
JUDICIALLY DETERMINED, BECAUSE JURISDICTION IN THE EXECUTIVE TO ORDER
DEPORTATION EXISTS ONLY IF THE PERSON ARRESTED IS AN ALIEN; AND NO
STATUTORY PROCEEDING IS PROVIDED IN WHICH HE CAN RAISE THE QUESTION
WHETHER THE EXECUTIVE ACTION IS IN EXCESS OF THE JURISDICTION CONFERRED
UPON THE SECRETARY.  FN25 

IT FOLLOWS FROM WHAT HAS BEEN SAID THAT, AS THE SECRETARY ERRED IN
THE CONSTRUCTION OF THE STATUTE, THE WRIT MUST BE GRANTED AND THE
RESPONDENT DISCHARGED FROM CUSTODY. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS ACCORDINGLY MODIFIED
AND THE CAUSE IS REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO
PROCEED IN CONFORMITY WITH THIS OPINION.  AFFIRMED WITH MODIFICATION. 

FN1  THE DELAY IN THIS CASE IS DUE TO THE FACT THAT RESPONDENT WAS
BORN AN AUSTRIAN SUBJECT BUT WAS REFUSED REENTRY INTO THAT COUNTRY ON
THE GROUND THAT THE PLACE OF HIS BIRTH IS NOW IN POLAND.  PROTRACTED
NEGOTIATIONS ON THE PART OF THE DEPARTMENT WERE REQUIRED TO OBTAIN THE
CONSENT OF THE GOVERNMENT OF POLAND TO HIS RETURN TO THAT COUNTRY. 

FN2  THAT THIS VIEW IS ERRONEOUS IS SHOWN BY THE HISTORY OF THE
LEGISLATION REFERRED TO INFRA, P. 30.  COMPARE, HOUSE REPORT 504, 66TH
CONG., 2ND SESS., P. 7; SENATE REPORT 648, 66TH CONG., 2ND SESS., P.
4. 

FN3  95 F.2D 976. 

FN4  96 F.2D 1020. 

FN5  ACT OF OCT. 16, 1918, C. 186, 40 STAT. 1012, AS AMENDED BY THE
ACT OF JUNE 5, 1920, C. 251, 41 STAT. 1008; U.S.C. TIT. 8, SEC. 137(A)
TO (E). 

FN6  40 STAT. 1012; U.S.C. TIT. 8, SEC. 137(G). 

FN7  ACT OF JUNE 29, 1906, C. 3592, SEC. 7, 34 STAT. 596, 598. 

FN8  32 STAT. 1213. 

FN9  SEC. 2, 32 STAT. 1214. 

FN10  SEC. 38, 32 STAT. 1221. 

FN11  SEC. 21, 32 STAT. 1218. 

FN12  34 STAT. 898, SECS. 21 AND 38, PP. 905, 908. 

FN13  HOUSE DOCUMENT NO. 1527, 63RD CONG., 3RD SESS. 

FN14  39 STAT. 874. 

FN15  SEE 53 CONG. REC. PART.  5, P. 5165, 64TH CONG., 1ST SESS.;
SEN. REP. 352, P. 14, 64TH CONG., 1ST SESS. TO ACCOMPANY H.R. 10384. 

FN16  HOUSE REP. 645, 65TH CONG., 2ND SESS. 

FN17  UNITED STATES EX REL. YOKINEN V. COMMISSIONER OF IMMIGRATION,
57 F.2D 707; UNITED STATES EX REL. MANNISTO V. REIMER, 77 F.2D 1021. 

FN18  HOUSE REP. 504, P. 9, 66TH CONG., 2ND SESS.  HEARINGS COMMUNIST
AND ANARCHISTIC DEPORTATION CASES, H.R. 66TH CONG., 2ND SESS.
SUBCOMMITTEE OF COMMITTEE ON IMMIGRATION AND NATURALIZATION, APRIL 21,
24, 1920, P. 17. 

FN19  SEE LETTER OF SECRETARY OF LABOR EMBODIED IN SENATE REP. 769,
75TH CONG., 1ST SESS. 

FN20  MAHLER V. EBY, 264 U.S. 32, 45. 

FN21  PEARSON V. WILLIAMS, 202 U.S. 281; ZAKONAITE V. WOLF, 226 U.S.
272. 

FN22  ZAKONAITE V. WOLF, SUPRA; TISI V. TOD, 264 U.S. 131, 133. 

FN23  VAJTAUER V. COMMISSIONER, 273 U.S. 103, 106; GEGIOW V. UHL, 239
U.S. 3. 

FN24  UNITED STATES V. SING TUCK, 194 U.S. 161, 167; BILOKUMSKY V.
TOD, 263 U.S. 149, 152, 153. 

FN25  NG FUNG HO V. WHITE, 259 U.S. 276; COMPARE TOD V. WALDMAN, 266
U.S. 113, 119. 

MR. JUSTICE MCREYNOLDS, DISSENTING: 

MR. JUSTICE BUTLER AND I CANNOT ACQUIESCE IN THE DISPOSITION OF THIS
CAUSE OR IN THE SUPPORTING OPINION JUST ANNOUNCED.  IT SEEMS WORTHWHILE
BRIEFLY TO INDICATE OUR VIEWS. 

MORE THAN FIVE YEARS HAVE PASSED SINCE THE ALIEN RESPONDENT WAS
ARRESTED AND ORDERED TO SHOW WHY HE SHOULD NOT BE DEPORTED.  THE RECORD
OF THE FOLLOWING PROCEEDINGS BEFORE THE LABOR DEPARTMENT AND IN THE
COURTS, PRINTED ON EIGHTY-FOUR PAGES, IS BEFORE US.  IT IS NOT VERY
DIFFICULT TO UNDERSTAND.  WITHOUT QUESTION WE HAVE POWER FINALLY TO
DISPOSE OF THE CAUSE UPON THE MERITS NOTWITHSTANDING ANY OMISSIONS OR
DEFECTS FOUND IN THE PETITION FOR CERTIORARI.  IN THE CIRCUMSTANCES, WE
THINK THAT COURSE SHOULD BE TAKEN.  THE DISTRICT COURT UPON ANOTHER
VIEW OF THE RECORD CAN ASCERTAIN NOTHING NOT OPEN TO US. 

IF THIS ALIEN IS GUILTLESS OF THE CHARGE AGAINST HIM HE SHOULD BE
LIBERATED WITHOUT MORE ADO; IF GUILTY, THE PUBLIC SHOULD BE RELIEVED OF
HIS PRESENCE NOW.  THAT HE IS AN UNDESIRABLE IS MADE MANIFEST. 

THE CONSTRUCTION OF THE STATUTE ADOPTED BY THE COURT SEEMS BOTH
UNWARRANTED AND UNFORTUNATE.  IF BY THE SIMPLE PROCESS OF RESIGNING OR
GETTING EXPELLED FROM A PROSCRIBED ORGANIZATION AN ALIEN MAY THEREBY
INSTANTLY PURGE HIMSELF AFTER MONTHS OR YEARS OF MISCHIEVOUS
ACTIVITIES, HOPED-FOR PROTECTION AGAINST SUCH CONDUCT WILL DISAPPEAR. 
ESCAPE FROM THE CONSEQUENCES OF DELIBERATE VIOLATIONS OF OUR
HOSPITALITY SHOULD NOT BECOME QUITE SO FACILE.  FN1 

SEVEN YEARS AGO, THE COURT OF APPEALS, SECOND CIRCUIT, CONSTRUED THE
STATUTE UNDER CONSIDERATION IN UNITED STATES EX REL. YOKINEN V.
COMMISSIONER OF IMMIGRATION, 57 F.2D 707-708.  THERE THE ALIEN HAD BEEN
EXPELLED FROM THE COMMUNIST PARTY BEFORE HIS ARREST, AND FOR THAT
REASON HE UNSUCCESSFULLY CLAIMED EXEMPTION.  THE FOLLOWING EXCERPTS
FROM THE COURT'S OPINION, WITH FORCE AND DIRECTNESS, EXPRESS OUR VIEW
CONCERNING THE TRUE MEANING OF THE ENACTMENT - 

"IT IS TRUE THAT HE WAS NOT A MEMBER OF THE COMMUNIST PARTY WHEN
ARRESTED.  HE HAD RECENTLY BEEN EXPELLED BECAUSE OF HIS ATTITUDE TOWARD
NEGROES, BUT THAT DID NOT REMOVE HIM FROM THE REACH OF THE STATUTE.  WE
HAVE NOTHING TO DO WITH SHAPING THE POLICY OF THE LAW TOWARDS ALIENS
WHO COME HERE AND JOIN A PROSCRIBED SOCIETY.  CONGRESS HAS PROVIDED
THAT 'ANY ALIEN WHO, AT ANY TIME AFTER ENTERING THE UNITED STATES, IS
FOUND TO HAVE BEEN AT THE TIME OF ENTRY, OR TO HAVE BECOME THEREAFTER,
A MEMBER OF ANY ONE OF THE CLASSES OF ALIENS ENUMERATED IN THIS
CONCEDEDLY DID BECOME AFTER ENTRY A MEMBER OF 'ONE OF  THE CLASSES ...
ENUMERATED' AND FROM THAT TIME BECAME DEPORTABLE.  WE ARE URGED TO
AMELIORATE THE SUPPOSED HARSHNESS OF THE STATUTE BY READING INTO IT
WORDS THAT CONGRESS SAW FIT TO LEAVE OUT AND INTERPRET IT TO APPLY NOT
TO ALIENS WHO BECOME MEMBERS, BUT ONLY TO THOSE WHO BECOME AND CONTINUE
TO THE TIME OF THEIR ARREST TO BE MEMBERS, OF ONE OF THE ENUMERATED
CLASSES.  IF THE WORDS USED IN THE STATUTE WERE EQUIVOCAL OR THE
INTENTION OF CONGRESS FOR ANY REASON UNCERTAIN, THERE MIGHT BE ROOM FOR
SUCH A CONSTRUCTION AS THAT FOR WHICH THE APPELLANT NOW CONTENDS. 
PERHAPS THE SUFFICIENT ANSWER IS THAT HAD CONGRESS INTENDED MEMBERSHIP
AT THE TIME OF ARREST TO BE THE CRITERION IT WOULD HAVE SAID SO.  IT
HAS THE POWER TO DETERMINE WHAT ACTS OF AN ALIEN SHALL TERMINATE HIS
RIGHT TO REMAIN HERE.  SKEFFINGTON V. KATZEFF ET AL. (C.C.A.)  277 F.
129.  WHAT IT DID DO WAS TO MAKE THE ACT OF BECOMING A MEMBER A
DEPORTABLE OFFENSE WITHOUT REGARD TO CONTINUANCE OF MEMBERSHIP AND IT
DID THAT IN LANGUAGE SO PLAIN THAT ANY ATTEMPT TO READ IN ANY OTHER
MEANING IS NO LESS THAN AN ATTEMPT TO CIRCUMVENT THE LAW ITSELF. 

"SINCE THE APPELLANT ADMITTEDLY HAD, AFTER ENTRY, BECOME A MEMBER OF
A PROSCRIBED ORGANIZATION, THE UNDISPUTED EVIDENCE REQUIRED THE ORDER
FROM WHICH THIS APPEAL WAS TAKEN.  ALL PROOF UPON WHICH HE WAS HELD TO
BE AFFILIATED WITH THE COMMUNIST PARTY WAS UNNECESSARY, AND WHILE WE DO
NOT MEAN TO INTIMATE THAT ANY EVIDENCE ON THAT PHASE OF THE CASE WAS
UNFAIRLY RECEIVED AND CONSIDERED, IN ANY EVENT IT DID HIM NO HARM." 
A PETITION FOR CERTIORARI ASKING THIS COURT TO REVIEW THE JUDGMENT OF
THE CIRCUIT COURT OF APPEALS WAS REFUSED OCTOBER 10, 1932(287 U.S.
607).  IT STRESSED THE POINT THAT - "A FAIR AND PROPER CONSTRUCTION OF
THE STATUTE REQUIRES THAT IT BE CONFINED IN ITS OPERATION TO ALIENS WHO
ARE MEMBERS OF OR AFFILIATED WITH A PROSCRIBED ORGANIZATION AT THE
ISSUANCE OF THE WARRANT OF ARREST." 

THE UNUSUAL IMPORTANCE OF THE QUESTION WAS NOT DIFFICULT TO
APPRECIATE. 

IN THE PRESENCE OF CLEAR AND POSITIVE EXPRESSION OF CONGRESSIONAL
INTENT TO THE CONTRARY WE DO NOT FEEL AT LIBERTY TO CONCLUDE THAT AN
ALIEN WHO AFTER ENTRY HAS SHOWN HIS CONTEMPT FOR OUR LAWS BY
DELIBERATELY ASSOCIATING HIMSELF WITH A PROSCRIBED ORGANIZATION MUST BE
ALLOWED TO REMAIN IF HE RESIGNED OR WAS DEBARRED A DAY, A MONTH OR A
YEAR BEFORE HIS ARREST.  AN EXPERIENCED COURT YEARS AGO DECLARED THAT
WOULD BE "NO LESS THAN AN ATTEMPT TO CIRCUMVENT THE LAW ITSELF." 

FN1  STRECKER, BORN IN POLAND IN 1888, WAS ADMITTED TO THE UNITED
STATES IN 1912. 

HE JOINED THE COMMUNIST PARTY NOVEMBER, 1932, BUT PAID NO DUES
SUBSEQUENT TO FEBRUARY, 1933.  HE CLAIMS THAT UNDER THE PARTY RULES
FAILURE TO PAY FOR FOUR WEEKS CAUSES MEMBERSHIP TO CEASE.  WARRANT FOR
HIS ARREST ISSUED IN NOVEMBER, 1933. 
..END :








MULFORD V. SMITH, 307 U.S. 38 


NO. 505.  ARGUED MARCH 8, 1939.  - DECIDED APRIL 17, 1939.  - 24
F.SUPP.  919, AFFIRMED. 


1.  PRODUCERS OF TOBACCO, CHALLENGING THE CONSTITUTIONALITY OF
PROVISIONS OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938, SOUGHT TO ENJOIN
WAREHOUSEMEN FROM DEDUCTING PENALTIES UNDER THE ACT FROM THE SALES
PRICE OF TOBACCO TO BE SOLD ON BEHALF OF THE PLAINTIFFS, IN EXCESS OF
THEIR RESPECTIVE QUOTAS.  HELD: 

(1) THE SUIT IS WITHIN SEC. 24(8) JUD.  CODE, WHICH CONFERS
JURISDICTION UPON DISTRICT COURTS "OF ALL SUITS AND PROCEEDINGS ARISING
UNDER ANY LAW REGULATING COMMERCE," IRRESPECTIVE OF CITIZENSHIP OF
PARTIES OR AMOUNT IN CONTROVERSY.  P. 46. 

(2)  THE SUIT IS NOT FORBIDDEN BY R.S. 3224, WHICH APPLIES ONLY TO
RESTRAINT OF ASSESSMENT OR COLLECTION OF A TAX.  P. 46. 

(3)  UPON THE AVERMENTS OF THE BILL THE CASE IS OF EQUITABLE
COGNIZANCE, FOR WANT OF ADEQUATE LEGAL REMEDY.  P. 46. 

2.  TITLE III OF THE AGRICULTURAL ADJUSTMENT ACT OF 1938, RECITING,
INTER ALIA, THE IMPORTANCE TO THE NATION OF THE MARKETING OF TOBACCO;
THAT TOBACCO IS SOLD ON A NATIONAL MARKET,  - ALMOST WHOLLY IN
INTERSTATE AND FOREIGN COMMERCE; AND THAT WITHOUT FEDERAL ASSISTANCE
TOBACCO FARMERS ARE UNABLE TO BRING ABOUT ORDERLY MARKETING, WITH THE
CONSEQUENCE THAT EXCESSIVE SUPPLIES ARE PRODUCED AND DUMPED ON THE
MARKET, BRINGING BURDENS AND OBSTRUCTIONS TO INTERSTATE AND FOREIGN
COMMERCE,  - DIRECT THAT WHEN IN ANY YEAR, ON NOVEMBER 15TH, THE
SECRETARY OF AGRICULTURE FINDS THAT THE TOTAL SUPPLY OF TOBACCO, AS OF
JULY 1ST, EXCEEDED THE RESERVE SUPPLY LEVEL WHICH IS DEFINED IN THE
ACT, HE SHALL PROCLAIM THE TOTAL SUPPLY AND A NATIONAL MARKETING QUOTA
SHALL BE IN EFFECT THROUGHOUT THE MARKETING YEAR WHICH COMMENCES THE
FOLLOWING JULY 1ST, BUT NOT IF MORE THAN ONE-THIRD OF THE PRODUCERS OF
THE CROP OF THE PRECEDING YEAR, AT A REFERENDUM HELD BY THE SECRETARY,
OPPOSE THE IMPOSITION OF SUCH QUOTA.  THE QUOTA FOR ANY YEAR IS TO BE
FIRST APPORTIONED AMONG THE STATES, LARGELY ON THE BASIS OF PAST
PRODUCTION, AND EACH STATE ALLOTMENT IS TO BE APPORTIONED AMONG THE
FARMS LARGELY ON THE BASIS OF PAST PRODUCTION AND MARKETING.  EACH
FARMER IS TO BE NOTIFIED OF HIS MARKETING QUOTA, AND IF TOBACCO IN
EXCESS OF THE QUOTA FOR ANY FARM ON WHICH IT WAS PRODUCED IS MARKETED
THROUGH A WAREHOUSEMAN, THE LATTER MUST PAY TO THE SECRETARY A PENALTY
EQUAL TO FIFTY PER CENT. OF THE MARKET PRICE OF THE EXCESS AND MAY
DEDUCT AN AMOUNT EQUIVALENT TO THE PENALTY FROM THE PRICE PAID THE
PRODUCER.  HELD: 

(1)  THE STATUTE DOES NOT PURPORT TO CONTROL PRODUCTION, BUT
REGULATES COMMERCE IN TOBACCO THROUGH MARKETING.  P. 47. 

(2)  WHERE MARKETING CONDITIONS ARE SUCH THAT REGULATION AS TO SALES
IN INTERSTATE AND FOREIGN COMMERCE CAN NOT BE EFFECTIVE UNLESS EXTENDED
TO SALES IN INTRASTATE COMMERCE ALSO, SUCH EXTENSION OF REGULATION IS
CONSTITUTIONAL.  P. 47. 

(3)  IN ORDER TO FOSTER, PROTECT AND CONSERVE INTERSTATE COMMERCE, OR
TO PREVENT THE FLOW OF THAT COMMERCE FROM WORKING HARM TO THE PEOPLE,
THE AMOUNT OF A GIVEN COMMODITY WHICH MAY BE TRANSPORTED IN IT MAY BE
LIMITED.  P. 48. 

(4)  THE MOTIVE OF CONGRESS IN ASSERTING THE POWER IS IRRELEVANT TO
THE VALIDITY OF THE LEGISLATION.  P. 48. 

(5)  THE PROVISIONS UNDER REVIEW DO NOT AMOUNT TO UNCONSTITUTIONAL
DELEGATION OF THE LEGISLATIVE POWER TO THE SECRETARY OF AGRICULTURE. 
P. 48. 

DEFINITE STANDARDS ARE LAID DOWN IN THE ACT TO GOVERN THE SECRETARY,
IN FIXING THE QUOTA AND IN ITS ALLOTMENT AMONGST THE STATES AND FARMS. 
HE IS DIRECTED TO ADJUST ALLOTMENTS SO AS TO ALLOW FOR SPECIFIED
FACTORS WHICH HAVE ABNORMALLY AFFECTED THE PRODUCTION OF THE STATE OR
THE FARM IN QUESTION IN TEST YEARS.  CONGRESS HAS INDICATED IN DETAIL
THE CONSIDERATIONS TO BE HELD IN VIEW IN MAKING THESE ADJUSTMENTS, AND,
IN ORDER TO PROTECT AGAINST ARBITRARY ACTION, HAS AFFORDED BOTH
ADMINISTRATIVE AND JUDICIAL REVIEW TO CORRECT ERRORS. 

3.  IN ITS APPLICATION TO THE MARKETING YEAR 1938, THE ABOVE
MENTIONED ACT PROVIDED THAT THE NATIONAL MARKETING QUOTA SHOULD BE
PROCLAIMED WITHIN 15 DAYS FROM FEBRUARY 16, 1938, THE DATE OF THE ACT'S
APPROVAL.  SUBSEQUENT STEPS WERE SO FAR DELAYED THAT PRODUCERS OF FLUE
CURED TOBACCO IN GEORGIA AND FLORIDA, WHO HAD BEGUN PREPARATIONS IN THE
PRECEDING DECEMBER FOR THEIR 1938 CROPS, AND AT GREAT EXPENSE HAD
BROUGHT THEM TO HARVEST, CURING AND GRADING, WERE NOT NOTIFIED OF THEIR
QUOTAS, WHICH WERE BELOW THE QUANTITIES PRODUCED, UNTIL A FEW DAYS
BEFORE THE MARKETS OPENED. 

HELD, THAT IN BEING SUBJECTED TO THE STATUTORY PENALTY ON THE EXCESS,
THEY WERE NOT DEPRIVED OF PROPERTY WITHOUT DUE PROCESS, THROUGH
RETROACTIVE OPERATION OF THE STATUTE.  PP. 49, 51. 

THE STATUTE OPERATED, NOT ON PRODUCTION, BUT PROSPECTIVELY ON
MARKETING, THE ACTIVITY REGULATED.  IT DID NOT PREVENT ANY PRODUCER
FROM HOLDING OVER THE EXCESS OF TOBACCO PRODUCED, OR FROM PROCESSING
AND STORING IT FOR SALE IN A LATER YEAR; AND THE CIRCUMSTANCE THAT THE
PRODUCERS IN GEORGIA AND FLORIDA HAD NOT PROVIDED FACILITIES FOR THESE
PURPOSES IS NOT OF LEGAL SIGNIFICANCE. 

MULFORD ET AL. V. SMITH ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE
DISTRICT OF GEORGIA. 

APPEAL FROM A DECREE OF A THREE-JUDGE DISTRICT COURT WHICH DISMISSED
THE BILL IN A SUIT BROUGHT BY TOBACCO FARMERS TO ENJOIN WAREHOUSEMEN
FROM DEDUCTING, AND REMITTING TO THE SECRETARY OF AGRICULTURE, THE
PENALTIES INFLICTED BY THE AGRICULTURAL ADJUSTMENT ACT OF 1938 ON
TOBACCO SOLD FOR THE PLAINTIFFS IN EXCESS OF THE QUOTAS ASSIGNED TO
THEIR RESPECTIVE FARMS.  THE SUIT WAS BEGUN IN THE SUPERIOR COURT OF
GEORGIA.  THE DEFENDANTS REMOVED THE CASE TO THE FEDERAL COURT.  THE
UNITED STATES INTERVENED, UNDER THE ACT OF AUGUST 24, 1937. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS, PRODUCERS OF FLUE-CURED TOBACCO, ASSERT THAT THE
AGRICULTURAL ADJUSTMENT ACT OF 1938,  FN1  IS UNCONSTITUTIONAL AS IT
AFFECTS THEIR 1938 CROP. 

THE PORTIONS OF THE STATUTE INVOLVED ARE THOSE INCLUDED IN TITLE III,
PROVIDING MARKETING QUOTAS FOR FLUE-CURED TOBACCO.  FN2  THE ACT
DIRECTS THAT WHEN THE SUPPLY IS FOUND TO EXCEED THE LEVEL DEFINED IN
THE ACT AS THE "RESERVE SUPPLY LEVEL" A NATIONAL MARKETING QUOTA SHALL
BECOME EFFECTIVE WHICH WILL PERMIT ENOUGH FLUE-CURED TOBACCO TO BE
MARKETED DURING THE ENSUING MARKETING YEAR TO MAINTAIN THE SUPPLY AT
THE RESERVE SUPPLY LEVEL.  THE QUOTA IS TO BE APPORTIONED TO THE FARMS
ON WHICH TOBACCO IS GROWN.  PENALTIES ARE TO BE PAID BY TOBACCO AUCTION
WAREHOUSEMEN FOR MARKETING TOBACCO FROM A FARM IN EXCESS OF ITS QUOTA. 

TOBACCO IS A BASIC INDUSTRY WHICH DIRECTLY AFFECTS INTERSTATE AND
FOREIGN COMMERCE; THAT STABLE CONDITIONS IN SUCH MARKETING ARE
NECESSARY TO THE GENERAL WELFARE; THAT TOBACCO IS SOLD ON A NATIONAL
MARKET AND IT AND ITS PRODUCTS MOVE ALMOST WHOLLY IN INTERSTATE AND
FOREIGN COMMERCE; THAT WITHOUT FEDERAL ASSISTANCE THE FARMERS ARE
UNABLE TO BRING ABOUT ORDERLY MARKETING, WITH THE CONSEQUENCE THAT
ABNORMALLY EXCESSIVE SUPPLIES ARE PRODUCED AND DUMPED INDISCRIMINATELY
ON THE NATIONAL MARKET; THAT THIS DISORDERLY MARKETING OF EXCESS SUPPLY
BURDENS AND OBSTRUCTS INTERSTATE AND FOREIGN COMMERCE, CAUSES REDUCTION
IN PRICES AND CONSEQUENT INJURY TO COMMERCE, CREATES DISPARITY BETWEEN
THE PRICES OF TOBACCO IN INTERSTATE AND FOREIGN COMMERCE AND THE PRICES
OF INDUSTRIAL PRODUCTS IN SUCH COMMERCE, AND DIMINISHES THE VOLUME OF
INTERSTATE COMMERCE IN INDUSTRIAL PRODUCTS; AND THAT THE ESTABLISHMENT
OF QUOTAS AS PROVIDED BY THE ACT IS NECESSARY AND APPROPRIATE TO
PROMOTE, FOSTER AND OBTAIN AN ORDERLY FLOW OF TOBACCO IN INTERSTATE AND
FOREIGN COMMERCE. 

THERE IS NO PROVISION FOR CONTINUOUS REGULATION OF TOBACCO MARKETING,
BUT, BY SEC. 312(A), REGULATION BECOMES EFFECTIVE IN ANY YEAR ONLY IF,
ON NOVEMBER 15TH, THE SECRETARY FINDS THAT THE TOTAL SUPPLY OF TOBACCO
AS OF JULY 1ST EXCEEDED THE RESERVE SUPPLY LEVEL WHICH IS DEFINED IN
THE ACT.  FN3  IF HE SO FINDS, HE SHALL, BY DECEMBER 1ST, PROCLAIM THE
TOTAL SUPPLY AND A NATIONAL MARKETING QUOTA SHALL BE IN EFFECT
THROUGHOUT THE MARKETING YEAR WHICH COMMENCES THE FOLLOWING JULY 1ST. 
THE QUOTA IS TO BE THE AMOUNT WHICH THE SECRETARY FINDS WILL MAKE
AVAILABLE DURING THE ENSUING MARKETING YEAR A SUPPLY OF TOBACCO EQUAL
TO THE RESERVE SUPPLY LEVEL.  AS IT WAS NOT PASSED UNTIL AFTER NOVEMBER
15, 1937, THE ACT PROVIDED, WITH RESPECT TO THE MARKETING YEAR
BEGINNING JULY 1, 1938, FOR WHICH THE QUOTAS INVOLVED IN THIS CASE WERE
IN EFFECT, THAT THE DETERMINATION AND PROCLAMATION OF THE NATIONAL
MARKETING QUOTA SHOULD BE MADE WITHIN FIFTEEN DAYS AFTER THE STATUTE'S
APPROVAL.  FN4 

WITHIN THIRTY DAYS AFTER PROCLAMATION, THE SECRETARY IS TO CONDUCT A
REFERENDUM OF THE PRODUCERS OF THE CROP OF THE PRECEDING YEAR TO
ASCERTAIN WHETHER THEY FAVOR OR OPPOSE THE IMPOSITION OF A QUOTA.  IF
MORE THAN ONE-THIRD OPPOSE, THE SECRETARY IS TO PROCLAIM THE RESULT
BEFORE JANUARY 1ST AND THE QUOTA IS NOT TO BE EFFECTIVE.  FN5 

BY SEC. 313(A) IT IS DIRECTED THAT THE QUOTA IS TO BE FIRST
APPORTIONED AMONG THE STATES BASED ON THE TOTAL QUANTITY OF TOBACCO
PRODUCED IN EACH STATE DURING THE FIVE YEARS IMMEDIATELY PRECEDING THE
YEAR IN QUESTION, PLUS THE NORMAL PRODUCTION OF ANY ACREAGE DIVERTED
UNDER ANY AGRICULTURAL ADJUSTMENT AND CONSERVATION PROGRAM IN ANY OF
THE YEARS.  THE BASIC DETERMINATION IS TO BE ADJUSTED TO CORRECT STATE
ALLOTMENTS, GIVING DUE CONSIDERATION TO SEED BED OR OTHER PLANT
DISEASES, PRODUCTION TRENDS, OR ABNORMAL PRODUCING CONDITIONS WHICH
AFFECTED PRODUCTION IN THE SEVERAL STATES DURING THE FIVE-YEAR PERIOD,
AND TO MAKE REQUIRED PROVISION FOR ALLOTMENTS TO SMALL FARMS.  A LIMIT
IS SET BELOW WHICH THE QUOTA OF ANY STATE MAY NOT BE REDUCED. 

THE ACT PROVIDES FOR THE APPORTIONMENT OF THE STATE ALLOTMENT AMONGST
THE FARMS WHICH PRODUCED TOBACCO IN THE CURRENT YEAR OR HAVE PRODUCED
PREVIOUSLY IN ONE OR MORE OF THE FOUR PRECEDING YEARS.  APPORTIONMENT
TO THESE FARMS IS TO BE MADE ON THE BASIS OF PAST MARKETING, AFTER DUE
ALLOWANCE FOR DROUGHT, FLOOD, HAIL, AND OTHER ABNORMAL WEATHER
CONDITIONS, PLANT BED AND OTHER DISEASES, LAND, LABOR, AND EQUIPMENT
AVAILABLE FOR THE PRODUCTION OF TOBACCO, CROP-ROTATION PRACTICES, AND
SOIL AND OTHER PHYSICAL FACTORS AFFECTING PRODUCTION.  A LIMIT IS FIXED
BELOW WHICH THE ADJUSTMENT MAY NOT REDUCE THE PRODUCTION OF A GIVEN
FARM.  ALLOTMENT TO NEW TOBACCO FARMS IS TO BE MADE ON A SLIGHTLY
DIFFERENT BASIS.  FN6 

APPORTIONMENT OF THE QUOTA AMONGST INDIVIDUAL FARMS IS TO BE BY LOCAL
COMMITTEES OF FARMERS ACCORDING TO STANDARDS PRESCRIBED IN THE ACT,
AMPLIFIED BY REGULATIONS AND INSTRUCTIONS ISSUED BY THE SECRETARY. 
EACH FARMER IS TO BE NOTIFIED OF HIS MARKETING QUOTA AND THE QUOTAS OF
INDIVIDUAL FARMS ARE TO BE KEPT AVAILABLE FOR PUBLIC INSPECTION IN THE
COUNTY OR DISTRICT WHERE THE FARM IS LOCATED.  IF THE FARMER IS
DISSATISFIED WITH HIS ALLOTMENT HE MAY HAVE HIS QUOTA REVIEWED BY A
LOCAL REVIEW COMMITTEE, AND, IF DISSATISFIED WITH THE DETERMINATION OF
THAT COMMITTEE, HE MAY OBTAIN JUDICIAL REVIEW. 

FARM ON WHICH THE TOBACCO IS PRODUCED IS MARKETED THROUGH A
WAREHOUSEMAN, THE LATTER MUST PAY TO THE SECRETARY A PENALTY EQUAL TO
FIFTY PER CENT. OF THE MARKET PRICE OF THE EXCESS, AND MAY DEDUCT AN
AMOUNT EQUIVALENT TO THE PENALTY FROM THE PRICE PAID THE PRODUCER. 
FN7 

OF UNPAID PENALTIES.  FN8 

A FEW DAYS BEFORE THE 1938 AUCTION SALES WERE TO TAKE PLACE, THE
APPELLANTS, WHO PRODUCE FLUE-CURED TOBACCO IN SOUTHERN GEORGIA AND
NORTHERN FLORIDA, FILED A BILL IN EQUITY IN A GEORGIA STATE COURT
AGAINST LOCAL WAREHOUSEMEN TO RESTRAIN THEM FROM DEDUCTING PENALTIES
UNDER THE ACT FROM THE SALES PRICE OF TOBACCO TO BE SOLD AT THEIR
AUCTION WAREHOUSES ON BEHALF OF APPELLANTS.  THE BILL ALLEGED THAT THE
ACT IS UNCONSTITUTIONAL; THAT IT ILLEGALLY COMMANDS THE DEFENDANTS TO
DEDUCT PENALTIES, PAY THEM OVER TO THE SECRETARY, WHO MUST COVER THEM
INTO THE TREASURY OF THE UNITED STATES; THAT, IF THE DEFENDANTS SHOULD
MAKE THE REQUIRED PAYMENTS, THE AMOUNTS PAID BY THEM WOULD AGGREGATE SO
LARGE A SUM THAT THEY WOULD BE UNABLE TO SATISFY JUDGMENTS IN ACTIONS
BROUGHT TO RECOVER THE ILLEGAL PAYMENTS.  THE COURT GRANTED A
PRELIMINARY INJUNCTION AND ORDERED THE DEFENDANT WAREHOUSEMEN TO PAY
THE AMOUNTS OF THE PENALTIES INTO THE REGISTRY OF THE COURT.  THE CAUSE
WAS REMOVED TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF GEORGIA.  THE DISTRICT COURT CONTINUED THE INJUNCTION, MODIFIED THE
ORDER TO REQUIRE THE PAYMENTS TO BE MADE INTO ITS REGISTRY, THE AUCTION
SALES WERE HELD, AND PAYMENTS INTO THE COURT WERE MADE.  THE UNITED
STATES WAS PERMITTED TO INTERVENE AS A DEFENDANT.  FN9  THE
WAREHOUSEMEN AND THE UNITED STATES FILED ANSWERS.  THE CAUSE WAS SET
DOWN BEFORE A COURT CONSISTING OF THREE JUDGES,  FN10  WHICH HEARD IT
ON A STIPULATION OF FACTS AND ENTERED A DECREE DISMISSING THE BILL. 
FN11 

BEFORE COMING TO THE MERITS WE INQUIRE WHETHER THE COURT BELOW HAD
JURISDICTION AS A FEDERAL COURT OR AS A COURT OF EQUITY.  THOUGH NO
DIVERSITY OF CITIZENSHIP IS ALLEGED, NOR IS ANY AMOUNT IN CONTROVERSY
ASSERTED SO AS TO CONFER JURISDICTION UNDER SUBSECTION (1)  FN12  OF
SEC. 24 OF THE JUDICIAL CODE, THE CASE FALLS WITHIN SUBSECTION (8)
FN13  WHICH CONFERS JURISDICTION UPON DISTRICT COURTS "OF ALL SUITS AND
PROCEEDINGS ARISING UNDER ANY LAW REGULATING COMMERCE."  MAINTENANCE OF
THE BILL FOR INJUNCTION IS NOT FORBIDDEN BY R.S. 3224,  FN14  WHICH
APPLIES ONLY TO A SUIT TO RESTRAIN ASSESSMENT OR COLLECTION OF A TAX. 
UNDER THE AVERMENTS OF THE BILL THE DEFENDANT WAREHOUSEMEN WOULD BE
WRONGDOERS IF THEY DEDUCTED AND PAID OVER THE PRESCRIBED PENALTIES, BUT
NO ACTION AT LAW WOULD BE ADEQUATE TO REDRESS THE DAMAGE THUS
INFLICTED.  IT APPEARS THAT THE TOTAL OF THE PENALTIES INVOLVED IN THIS
SUIT IS SOME $374,000.  THE ALLEGATION THAT THE WAREHOUSEMEN WOULD BE
UNABLE TO RESPOND IN ACTIONS FOR SUMS AGGREGATING THIS AMOUNT HAS,
THEREFORE, REASONABLE BASIS.  BEFORE ANY SUCH ACTION COULD BE INITIATED
THE PENAL SUM WOULD HAVE BEEN PAID TO THE SECRETARY OF AGRICULTURE AND
BY HIM TO THE TREASURER OF THE UNITED STATES AND COVERED INTO THE
GENERAL FUNDS OF THE TREASURY.  NO ACTION COULD BE MAINTAINED AGAINST
THE WAREHOUSEMEN OR EITHER OF THESE OFFICIALS FOR DISPOSING OF THE
PENAL SUMS IN ACCORDANCE WITH THE TERMS OF THE ACT UNLESS PRIOR NOTICE
NOT TO DO SO HAD BEEN SERVED UPON EACH OF THEM.  IN THE LIGHT OF THE
FACT THAT THE APPELLANTS RECEIVED NOTICE OF THEIR QUOTAS ONLY A FEW
DAYS BEFORE THE ACTUAL MARKETING SEASON OPENED, THE MAINTENANCE OF
ACTIONS BASED UPON COLLECTION OF THE PENALTIES WOULD HAVE BEEN A
PRACTICAL IMPOSSIBILITY.  WE ARE OF OPINION, THEREFORE, THAT A CASE IS
STATED FOR THE INTERPOSITION OF A COURT OF EQUITY. 

THE APPELLANTS PLANT THEMSELVES UPON THREE PROPOSITIONS:  (1) THAT
THE ACT IS A STATUTORY PLAN TO CONTROL AGRICULTURAL PRODUCTION AND,
THEREFORE, BEYOND THE POWERS DELEGATED TO CONGRESS; (2) THAT THE
STANDARD FOR CALCULATING FARM QUOTAS IS UNCERTAIN, VAGUE, AND
INDEFINITE, RESULTING IN AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE
POWER TO THE SECRETARY; (3) THAT, AS APPLIED TO APPELLANTS' 1938 CROP,
THE ACT TAKES THEIR PROPERTY WITHOUT DUE PROCESS OF LAW. 

FIRST.  THE STATUTE DOES NOT PURPORT TO CONTROL PRODUCTION.  IT SETS
NO LIMIT UPON THE ACREAGE WHICH MAY BE PLANTED OR PRODUCED AND IMPOSES
NO PENALTY FOR THE PLANTING AND PRODUCING OF TOBACCO IN EXCESS OF THE
MARKETING QUOTA.  IT PURPORTS TO BE SOLELY A REGULATION OF INTERSTATE
COMMERCE, WHICH IT REACHES AND AFFECTS AT THE THROAT WHERE TOBACCO
ENTERS THE STREAM OF COMMERCE,  - THE MARKETING WAREHOUSE.  FN15  THE
RECORD DISCLOSES THAT AT LEAST TWO-THIRDS OF ALL FLUE-CURED TOBACCO
SOLD AT AUCTION WAREHOUSES IS SOLD FOR IMMEDIATE SHIPMENT TO AN
INTERSTATE OR FOREIGN DESTINATION.  IN GEORGIA NEARLY ONE HUNDRED PER
CENT. OF THE TOBACCO SO SOLD IS PURCHASED BY EXTRASTATE PURCHASERS.  IN
MARKETS WHERE TOBACCO IS SOLD TO BOTH INTERSTATE AND INTRASTATE
PURCHASERS IT IS NOT KNOWN, WHEN THE GROWER PLACES HIS TOBACCO ON THE
WAREHOUSE FLOOR FOR SALE, WHETHER IT IS DESTINED FOR INTERSTATE OR
INTRASTATE COMMERCE.  REGULATION TO BE EFFECTIVE, MUST, AND THEREFORE
MAY CONSTITUTIONALLY, APPLY TO ALL SALES.  FN16  THIS COURT HAS
RECENTLY DECLARED THAT SALES OF TOBACCO BY GROWERS THROUGH WAREHOUSEMEN
TO PURCHASERS FOR REMOVAL OUTSIDE THE STATE CONSTITUTE INTERSTATE
COMMERCE.  FN17  ANY RULE, SUCH AS THAT EMBODIED IN THE ACT, WHICH IS
INTENDED TO FOSTER, PROTECT AND CONSERVE THAT COMMERCE, OR TO PREVENT
THE FLOW OF COMMERCE FROM WORKING HARM TO THE PEOPLE OF THE NATION, IS
WITHIN THE COMPETENCE OF CONGRESS.  WITHIN THESE LIMITS THE EXERCISE OF
THE POWER, THE GRANT BEING UNLIMITED IN ITS TERMS, MAY LAWFULLY EXTEND
TO THE ABSOLUTE PROHIBITION OF SUCH COMMERCE,  FN18  AND A FORTIORI TO
LIMITATION OF THE AMOUNT OF A GIVEN COMMODITY WHICH MAY BE TRANSPORTED
IN SUCH COMMERCE.  THE MOTIVE OF CONGRESS IN EXERTING THE POWER IS
IRRELEVANT TO THE VALIDITY OF THE LEGISLATION.  FN19 

THE PROVISIONS OF THE ACT UNDER REVIEW CONSTITUTE A REGULATION OF
INTERSTATE AND FOREIGN COMMERCE WITHIN THE COMPETENCY OF CONGRESS UNDER
THE POWER DELEGATED TO IT BY THE CONSTITUTION. 

SECOND.  THE APPELLANTS URGE THAT THE STANDARD FOR ALLOTTING FARM
QUOTAS IS SO UNCERTAIN, VAGUE, AND INDEFINITE THAT IT AMOUNTS TO A
DELEGATION OF LEGISLATIVE POWER TO AN EXECUTIVE OFFICER AND THUS
VIOLATES THE CONSTITUTIONAL REQUIREMENT THAT LAWS SHALL BE ENACTED BY
THE CONGRESS. 

WHAT HAS BEEN SAID IN SUMMARIZING THE PROVISIONS OF THE ACT
SUFFICIENTLY DISCLOSES THAT DEFINITE STANDARDS ARE LAID DOWN FOR THE
GOVERNMENT OF THE SECRETARY, FIRST, IN FIXING THE QUOTA AND, SECOND, IN
ITS ALLOTMENT AMONGST STATES AND FARMS.  HE IS DIRECTED TO ADJUST THE
ALLOTMENTS SO AS TO ALLOW FOR SPECIFIED FACTORS WHICH HAVE ABNORMALLY
AFFECTED THE PRODUCTION OF THE STATE OR THE FARM IN QUESTION IN THE
TEST YEARS.  CERTAINLY FAIRNESS REQUIRES THAT SOME SUCH ADJUSTMENT
SHALL BE MADE.  THE CONGRESS HAS INDICATED IN DETAIL THE CONSIDERATIONS
WHICH ARE TO BE HELD IN VIEW IN MAKING THESE ADJUSTMENTS, AND, IN ORDER
TO PROTECT AGAINST ARBITRARY ACTION, HAS AFFORDED BOTH ADMINISTRATIVE
AND JUDICIAL REVIEW TO CORRECT ERRORS.  THIS IS NOT TO CONFER
UNRESTRAINED ARBITRARY POWER ON AN EXECUTIVE OFFICER.  IN THIS ASPECT
THE ACT IS VALID WITHIN THE DECISIONS OF THIS COURT RESPECTING
DELEGATION TO ADMINISTRATIVE OFFICERS.  FN20    THIRD.  IN SUPPORT OF
THEIR CONTENTION THAT THE ACT, AS APPLIED TO THE CROP YEAR 1938,
DEPRIVES THEM OF THEIR PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION
OF THE FIFTH AMENDMENT, THE APPELLANTS RELY ON THE FOLLOWING UNDISPUTED
FACTS. 

TOBACCO GROWERS IN SOUTHERN GEORGIA AND NORTHERN FLORIDA BEGAN TO
ARRANGE FOR THE PLANTING OF THEIR 1938 CROP IN DECEMBER, 1937, WHEN IT
WAS NECESSARY FOR THEM TO PREPARE BEDS FOR THE PLANTING OF THE SEEDS. 
THEREAFTER IT WAS NECESSARY TO CULTIVATE THE SEED BEDS, SOW AND WATER
THE SEED, COVER THE BEDS WITH CLOTH, AND OTHERWISE CARE FOR THE PLANTS
UNTIL THEY WERE LARGE ENOUGH TO BE TRANSPLANTED.  AT THE DATE OF
APPROVAL OF THE ACT EACH OF THE PLAINTIFFS HAD PLANTED HIS SEED BEDS
AND, ABOUT THE MIDDLE OF MARCH, BEGAN TRANSPLANTING INTO THE FIELDS,
WHICH WERE PREPARED AND FERTILIZED AT LARGE EXPENSE.  THE PLANTS WERE
THEREAFTER CULTIVATED AND SPRAYED, AND HARVESTING BEGAN DURING JUNE AND
CONTINUED DURING JULY, FOLLOWED BY THE CURING AND GRADING OF THE
TOBACCO. 

ALL OF THESE ACTIVITIES INVOLVED LABOR AND EXPENSE.  THE PRODUCTION
OF FLUE-CURED TOBACCO REQUIRES, AT PREVAILING PRICE LEVELS, A CASH
OUTLAY OF BETWEEN THIRTY AND FORTY DOLLARS PER ACRE FOR FERTILIZER,
PLANT BED COVERING, TWINE, POISON, ETC. THE USE OF ANIMALS AND
PERMANENT AND SEMI-PERMANENT EQUIPMENT DEMANDS AN AVERAGE EXPENDITURE,
OVER A PERIOD OF YEARS, RANGING FROM TWENTY TO THIRTY DOLLARS AN ACRE. 
THE LABOR EXPENDED PER ACRE IS BETWEEN THREE HUNDRED AND FOUR HUNDRED
MAN-HOURS.  THE TOTAL COST PER POUND VARIES FROM TEN CENTS TO TWENTY
CENTS. 

THE MARKETING SEASON FOR FLUE-CURED TOBACCO IN GEORGIA AND FLORIDA
COMMENCES ABOUT AUGUST 1ST OF EACH YEAR.  EACH OF THE APPELLANTS WAS
NOTIFIED OF THE QUOTA OF HIS FARM SHORTLY BEFORE THE OPENING OF THE
AUCTION MARKETS.  PRIOR TO THE RECEIPT OF NOTICE EACH OF THEM HAD
LARGELY, IF NOT WHOLLY, COMPLETED PLANTING, CULTIVATING, HARVESTING,
CURING AND GRADING HIS TOBACCO.  UNTIL RECEIPT OF NOTICE NONE KNEW, OR
COULD HAVE KNOWN, THE EXACT AMOUNT OF HIS QUOTA, ALTHOUGH, AT THE TIME
OF FILING THE BILL, EACH HAD CONCLUDED FROM AVAILABLE INFORMATION THAT
HE WOULD PROBABLY MARKET TOBACCO IN EXCESS OF ANY QUOTA FOR HIS FARM. 

THE ACT WAS APPROVED FEBRUARY 16, 1938.  THE SECRETARY PROCLAIMED A
QUOTA FOR FLUE-CURED TOBACCO ON FEBRUARY 18TH AND, ON THE SAME DATE,
ISSUED INSTRUCTIONS FOR HOLDING A REFERENDUM ON MARCH 12TH.  MARCH 25TH
THE SECRETARY PROCLAIMED THE RESULT OF THE REFERENDUM WHICH WAS
FAVORABLE TO THE IMPOSITION OF A NATIONAL MARKETING QUOTA.  IN JUNE HE
ISSUED REGULATIONS GOVERNING THE FIXING OF FARM QUOTAS WITHIN THE
STATES.  JULY 22ND HE DETERMINED THE APPORTIONMENT AS BETWEEN STATES
AND ISSUED REGULATIONS RELATIVE TO THE RECORDS TO BE KEPT BY
WAREHOUSEMEN AND OTHERS.  SHORTLY BEFORE THE MARKETS OPENED EACH
APPELLANT RECEIVED NOTICE OF THE ALLOTMENT TO HIS FARM. 

ON THE BASIS OF THESE FACTS IT IS ARGUED THAT THE STATUTE OPERATED
RETROACTIVELY AND THEREFORE AMOUNTED TO A TAKING OF APPELLANTS'
PROPERTY WITHOUT DUE PROCESS.  THE ARGUMENT OVERLOOKS THE CIRCUMSTANCE
THAT THE STATUTE OPERATES NOT ON FARM PRODUCTION, AS THE APPELLANTS
INSIST, BUT UPON THE MARKETING OF THEIR TOBACCO IN INTERSTATE
COMMERCE.  THE LAW, ENACTED IN FEBRUARY, AFFECTED THE MARKETING WHICH
WAS TO TAKE PLACE ABOUT AUGUST 1ST FOLLOWING, AND SO WAS PROSPECTIVE IN
ITS OPERATION UPON THE ACTIVITY IT REGULATED.  THE ACT DID NOT PREVENT
ANY PRODUCER FROM HOLDING OVER THE EXCESS TOBACCO PRODUCED, OR
PROCESSING AND STORING IT FOR SALE IN A LATER YEAR; AND THE
CIRCUMSTANCE THAT THE PRODUCERS IN GEORGIA AND FLORIDA HAD NOT PROVIDED
FACILITIES FOR THESE PURPOSES IS NOT OF LEGAL SIGNIFICANCE. 

THE DECREE IS AFFIRMED. 

FN1  52 STAT. 31, AS AMENDED MARCH 26, 1938, 52 STAT. 120, APRIL 7,
1938, 52 STAT. 202, MAY 31, 1938, 52 STAT. 586, AND JUNE 20, 1938, 52
STAT. 775; U.S.C. SUPP. IV, TITLE 7, SECS. 1281, ET SEQ. 

FN2  TITLE III, SUBTITLE B, MARKETING QUOTAS, PART I, MARKETING
QUOTAS - TOBACCO, SECS. 311-314, INCLUSIVE.  SEE ALSO SEC. 301,
DEFINITIONS.  SECS. 361-375, INCLUSIVE, ADMINISTRATIVE PROVISIONS;
SECS. 388 AND 389 RELATING TO PERSONNEL. 

FN3  THE TOTAL SUPPLY, THE CARRY-OVER FOR A MARKETING YEAR, THE
RESERVE SUPPLY LEVEL, THE NORMAL SUPPLY, A NORMAL YEAR'S DOMESTIC
CONSUMPTION, AND A NORMAL YEAR'S EXPORTS, ARE DEFINED IN SEC. 301. 

FN4  SEC. 312(D). 

FN5  SEC. 312(C).  WITH RESPECT TO 1938 QUOTAS, THE PROCLAMATION OF
THE RESULT OF THE REFERENDUM WAS TO BE MADE WITHIN FORTY-FIVE DAYS
AFTER APPROVAL OF THE ACT.  SEC. 312(D). 

FN6  SECS. 313(B) AND 313(C). 

FN7  IF THE TOBACCO IS MARKETED DIRECTLY TO A PERSON OUTSIDE THE
UNITED STATES, THE PRODUCER IS REQUIRED TO PAY THE PENALTY.  IF THE
TOBACCO IS SOLD BY THE GROWER DIRECTLY TO A PURCHASER WITHOUT
INTERVENTION BY THE WAREHOUSEMAN OR OTHER AGENT, THE BUYER IS REQUIRED
TO PAY THE PENALTY, BUT MAY DEDUCT AN EQUIVALENT AMOUNT FROM THE
PURCHASE PRICE.  SECS. 314, 372, 373.  THE PENALTY IS TO BE THREE CENTS
PER POUND IF THAT RATE IS HIGHER THAN 50% OF THE MARKET PRICE.  SEC.
314. 

FN8  THE SECRETARY MAY MAKE REGULATIONS NECESSARY FOR IDENTIFYING
TOBACCO SUBJECT TO QUOTAS, SEC. 375; AND REQUIRING THE KEEPING OF
RECORDS AND THE MAKING OF REPORTS.  THE ACT IMPOSES UPON HANDLERS OTHER
THAN PRODUCERS A FINE OF $500 UPON CONVICTION OF FAILURE TO MAKE ANY
REPORT OR KEEP ANY RECORD, OR FOR MAKING ANY FALSE REPORT OR RECORD. 
SEC. 373(A) AND (B). 

FN9  ACT OF AUGUST 24, 1937, C. 754, SEC. 1, 50 STAT. 751; U.S.C.
SUPP. III, TIT. 28, SEC. 401. 

FN10  IBID, U.S.C. SUPP. III, TIT. 28, SEC. 380(A). 

FN11  24 F.SUPP.  919. 

FN12  U.S.C. TIT. 28, SEC. 41(1). 

FN13  U.S.C. TIT. 28, SEC. 41(8). 

FN14  U.S.C. TIT. 26, SEC. 1543. 

FN15  CURRIN V. WALLACE, 306 U.S. 1; COMPARE TOWNSEND V. YEOMANS, 301
U.S. 441. 

FN16  THE MINNESOTA RATE CASES, 230 U.S. 352; THE SHREVEPORT CASE,
234 U.S. 342; CURRIN V. WALLACE, SUPRA. 

FN17  CURRIN V. WALLACE, SUPRA; AND SEE DAHNKE-WALKER CO. V.
BONDURANT, 257 U.S. 282, 290; SHAFER V. FARMERS GRAIN CO., 268 U.S.
189, 198.  COMPARE LEMKE V. FARMERS GRAIN CO., 258 U.S. 50. 

FN18  CHAMPION V. AMES, 188 U.S. 321; HIPOLITE EGG CO. V. UNITED
STATES, 220 U.S. 45; HOKE V. UNITED STATES, 227 U.S. 308; BROOKS V.
UNITED STATES, 267 U.S. 432; GOOCH V. UNITED STATES, 297 U.S. 124. 

FN19  STORY, COMMENTARIES ON THE CONSTITUTION (4TH ED.), SECS. 965,
1079, 1081, 1089. 

FN20  UNITED STATES V. GRIMAUD, 220 U.S. 506; AVENT V. UNITED STATES,
266 U.S. 127; HAMPTON & CO. V. UNITED STATES, 276 U.S. 394; NEW YORK
CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12; CURRIN V.
WALLACE, SUPRA. 

MR. JUSTICE BUTLER, DISSENTING. 

PLAINTIFFS ARE FARMERS IN GEORGIA AND ON THEIR FARMS RAISE TOBACCO. 
THEY SELL IT IN THE MARKET YEAR WHEN PRODUCED BECAUSE, IN THEIR
CIRCUMSTANCES, THEY ARE UNABLE TO PROCESS AND MAKE IT FIT TO BE HELD
FOR SALE IN A LATER YEAR.  THE SALES ARE AT AUCTION MARKETS, THROUGH
DEFENDANTS WHO ARE GEORGIA WAREHOUSEMEN, TO PURCHASERS INTENDING TO
TAKE THE TOBACCO OUTSIDE THE STATE.  THE SECRETARY OF AGRICULTURE,
ASSUMING TO BE EMPOWERED BY THE AGRICULTURAL ADJUSTMENT ACT OF 1938,
UNDERTOOK TO PRESCRIBE THE AMOUNT OF FLUE-CURED TOBACCO TO BE RAISED IN
1938 IN THE UNITED STATES, IN EACH STATE, AND ON EACH FARM.  HE FAILED
TO LET PLAINTIFFS KNOW THE QUOTAS RESPECTIVELY ASSIGNED TO THEM UNTIL
AFTER THEIR CROPS HAD MATURED AND WERE READY FOR MARKETING.  EACH
RAISED MORE THAN THE ASSIGNED QUOTA. 

THE ACT DECLARES THAT, IF MORE THAN THE AMOUNT FIXED FOR A FARM IS
MARKETED, THE WAREHOUSEMAN SHALL PAY TO THE SECRETARY A PENALTY EQUAL
TO ONE-HALF THE PRICE OF THE EXCESS, BUT IT AUTHORIZES HIM TO RETAIN
THAT AMOUNT FROM THE FARMER RAISING AND BRINGING IT TO MARKET FOR
SALE.  IF, WITHOUT RESORT TO A WAREHOUSEMAN, THE FARMER SELLS DIRECTLY
TO ONE IN THIS COUNTRY, THE PURCHASER IS REQUIRED TO PAY THE PENALTY
BUT IS AUTHORIZED TO TAKE THE AMOUNT FROM THE PURCHASE PRICE.  IF THE
FARMER SELLS DIRECTLY TO ONE OUTSIDE THE UNITED STATES HE IS REQUIRED
TO PAY THE PENALTY TO THE SECRETARY.  THUS, IN ANY EVENT, THE PENALTY
IS EFFECTIVELY LAID UPON THE FARMER.  ENFORCEMENT OF THE ACT WILL
COMPULSORILY TAKE FROM PLAINTIFFS AN AMOUNT OF MONEY EQUAL TO ONE-HALF
OF THE MARKET VALUE OF ALL TOBACCO RAISED AND SOLD BY THEM IN EXCESS OF
THE PRESCRIBED QUOTAS. 

IN UNITED STATES V. BUTLER, 297 U.S. 1, WE HELD THE FEDERAL GOVERNMENT
WITHOUT POWER TO CONTROL FARM PRODUCTION.  WE CONDEMNED THE STATUTORY
PLAN THERE SOUGHT TO BE ENFORCED AS REPUGNANT TO THE TENTH AMENDMENT. 
THAT SCHEME WAS DEVISED AND PUT IN EFFECT UNDER THE GUISE OF EXERTION
OF POWER TO TAX.  WE HELD IT TO BE IN EXCESS OF THE POWERS DELEGATED TO
THE FEDERAL GOVERNMENT; FOUND THE TAX, THE APPROPRIATION OF THE MONEY
RAISED, AND THE DIRECTIONS FOR ITS DISBURSEMENT, TO BE BUT THE MEANS TO
AN UNCONSTITUTIONAL END; SHOWED THAT THE CONSTITUTION CONFERS NO POWER
TO REGULATE PRODUCTION AND THAT THEREFORE LEGISLATION FOR THAT PURPOSE
IS FORBIDDEN; EMPHASIZED THE PRINCIPLE ESTABLISHED BY EARLIER DECISIONS
THAT A PROHIBITED END MAY NOT BE ATTAINED UNDER PRETEXT OF EXERTION OF
POWERS WHICH ARE GRANTED; AND FINALLY WE DECLARED THAT, IF CONGRESS MAY
USE ITS POWER TO TAX AND TO SPEND COMPULSORILY TO REGULATE SUBJECTS
WITHIN THE RESERVED POWER OF THE STATES, THAT POWER "WOULD BECOME THE
INSTRUMENT FOR TOTAL SUBVERSION OF THE GOVERNMENTAL POWERS RESERVED TO
THE INDIVIDUAL STATES." 

AFTER FAILURE OF THAT MEASURE, CONGRESS, ASSUMING POWER UNDER THE
COMMERCE CLAUSE, ENACTED THE PROVISIONS AUTHORIZING THE QUOTAS AND
PENALTIES THE VALIDITY OF WHICH IS QUESTIONED IN THIS CASE.  PLAINTIFFS
CONTEND THAT THE ACT IS A PLAN TO CONTROL AGRICULTURAL PRODUCTION AND
THEREFORE BEYOND THE POWERS DELEGATED TO CONGRESS.  THE COURT IMPLIEDLY
CONCEDES THAT SUCH A PLAN WOULD BE BEYOND CONGRESSIONAL POWER, BUT SAYS
THAT THE PROVISIONS DO NOT PURPORT TO CONTROL PRODUCTION, SET NO LIMIT
UPON THE ACREAGE WHICH MAY BE PLANTED OR PRODUCED AND IMPOSE NO PENALTY
UPON PLANTING AND PRODUCTION IN EXCESS OF MARKETING QUOTA.  MERE
INSPECTION OF THE STATUTE AND SECRETARY'S REGULATIONS UNMISTAKABLY
DISCLOSES PURPOSE TO RAISE PRICE BY LESSENING PRODUCTION.  WHATEVER MAY
BE ITS DECLARED POLICY OR APPEARANCE, THE ENACTMENT OPERATES TO CONTROL
QUANTITY RAISED BY EACH FARMER.  IT IS WHOLLY FALLACIOUS TO SAY THAT
THE PENALTY IS NOT IMPOSED UPON PRODUCTION.  THE FARMER RAISES TOBACCO
ONLY FOR SALE.  PUNISHMENT FOR SELLING IS THE EXACT EQUIVALENT OF
PUNISHMENT FOR RAISING THE TOBACCO.  THE ACT IS THEREFORE INVALID. 
UNITED STATES V. BUTLER, 297 U.S. 1.  HAMMER V. DAGENHART, 247 U.S.
251.  SEE BROOKS V. UNITED STATES, 267 U.S. 432, 438; KENTUCKY WHIP &
COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299 U.S. 334, 350.  CF.
RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330, 362, ET SEQ. 

ASSUMING THAT, UNDER CURRIN V. WALLACE, 306 U.S. 1, PLAINTIFFS' SALES
IN INTERSTATE COMMERCE AT DEFENDANTS' AUCTION MARKETS ARE TO BE DEEMED
SUBJECT TO FEDERAL POWER UNDER THE COMMERCE CLAUSE, THE COURT NOW RULES
THAT, WITHIN SUGGESTED LIMITS SO VAGUE AS TO BE UNASCERTAINABLE, THE
EXERCISE OF POWER UNDER THAT CLAUSE, "THE GRANT BEING UNLIMITED IN ITS
TERMS, MAY LAWFULLY EXTEND TO THE ABSOLUTE PROHIBITION OF SUCH COMMERCE
AND A FORTIORI TO LIMITATION OF THE AMOUNT OF A GIVEN COMMODITY WHICH
MAY BE TRANSPORTED IN SUCH COMMERCE." 

THAT RULING IS CONTRARY ALIKE TO REASON AND PRECEDENT.  TO SUPPORT
IT, THE COURT MERELY CITES THE FOLLOWING CASES: 

THE LOTTERY CASE, (CHAMPION V. AMES) 188 U.S. 321, HELD THAT AN ACT
OF CONGRESS PROHIBITING TRANSPORTATION OF LOTTERY TICKETS IN INTERSTATE
COMMERCE IS NOT INCONSISTENT WITH ANY LIMITATION OR RESTRICTION IMPOSED
UPON EXERCISE OF THE POWERS GRANTED TO CONGRESS.  AFTER DEMONSTRATING
THE ILLICIT CHARACTER OF LOTTERY TICKETS, THE COURT SAID (P. 357):  "WE
SHOULD HESITATE LONG BEFORE ADJUDGING THAT AN EVIL OF SUCH APPALLING
CHARACTER, CARRIED ON THROUGH INTERSTATE COMMERCE, CANNOT BE MET AND
CRUSHED BY THE ONLY POWER COMPETENT TO THAT END.  ...  (P. 358)  IT IS
A KIND OF TRAFFIC WHICH NO ONE CAN BE ENTITLED TO PURSUE AS OF RIGHT." 

HIPOLITE EGG CO. V. UNITED STATES, 220 U.S. 45, HELD WITHIN FEDERAL
POWER THE PROVISIONS OF THE FOOD AND DRUG ACT FORBIDDING TRANSPORTATION
IN INTERSTATE COMMERCE OF FOOD "DEBASED BY ADULTERATION" AND
AUTHORIZING ARTICLES SO TRANSPORTED TO BE SEIZED AS CONTRABAND. 

HOKE V. UNITED STATES, 227 U.S. 308, SUSTAINED CONGRESSIONAL
PROHIBITION OF INTERSTATE TRANSPORTATION OF WOMEN FOR IMMORAL
PURPOSES. 

BROOKS V. UNITED STATES, 267 U.S. 432, UPHELD A STATUTE OF THE UNITED
STATES MAKING IT A CRIME TO TRANSPORT A STOLEN AUTOMOBILE IN INTERSTATE
COMMERCE. 

GOOCH V. UNITED STATES, 297 U.S. 124, CONSTRUED AN ACT OF CONGRESS
MAKING IT A CRIME TO TRANSPORT A KIDNAPPED PERSON IN INTERSTATE
COMMERCE. 

PLAINLY THESE CASES GIVE NO SUPPORT TO THE VIEW THAT CONGRESS HAS
POWER GENERALLY TO PROHIBIT OR LIMIT, AS IT MAY CHOOSE, TRANSPORTATION
IN INTERSTATE COMMERCE OF CORN, COTTON, RICE, TOBACCO, OR WHEAT.  OUR
DECISIONS ESTABLISH THE CONTRARY: 

WILSON V. NEW, 243 U.S. 332, UPHELD AN ACT REGULATING HOURS OF
SERVICE OF EMPLOYEES OF INTERSTATE CARRIERS BY RAIL.  THE COURT,
FOLLOWING THE TEACHING OF EARLIER DECISIONS, SAID (P. 346):  "THE
EXTENT OF REGULATION DEPENDS ON THE NATURE AND CHARACTER OF THE SUBJECT
AND WHAT IS APPROPRIATE TO ITS REGULATION.  THE POWERS POSSESSED BY
GOVERNMENT TO DEAL WITH A SUBJECT ARE NEITHER INORDINATELY ENLARGED OR
GREATLY DWARFED BECAUSE THE POWER TO REGULATE INTERSTATE COMMERCE
APPLIES.  THIS IS ILLUSTRATED BY THE DIFFERENCE BETWEEN THE MUCH
GREATER POWER OF REGULATION WHICH MAY BE EXERTED AS TO LIQUOR AND THAT
WHICH MAY BE EXERCISED AS TO FLOUR, DRYGOODS AND OTHER COMMODITIES.  IT
IS SHOWN BY THE SETTLED DOCTRINE SUSTAINING THE RIGHT BY REGULATION
ABSOLUTELY TO PROHIBIT LOTTERY TICKETS AND BY THE OBVIOUS CONSIDERATION
THAT SUCH RIGHT TO PROHIBIT COULD NOT BE APPLIED TO PIG IRON, STEEL
RAILS, OR MOST OF THE VAST BODY OF COMMODITIES."    HAMMER V.
DAGENHART, 247 U.S. 251, HELD REPUGNANT TO THE COMMERCE CLAUSE AND TO
THE TENTH AMENDMENT AN ACT PROHIBITING TRANSPORTATION IN INTERSTATE
COMMERCE OF ARTICLES MADE AT FACTORIES IN WHICH CHILD LABOR WAS
EMPLOYED.  THE COURT SAID (P. 269):  "IN OTHER WORDS, THE POWER
(GRANTED BY THE COMMERCE CLAUSE) IS ONE TO CONTROL THE MEANS BY WHICH
COMMERCE IS CARRIED ON, WHICH IS DIRECTLY THE CONTRARY OF THE ASSUMED
RIGHT TO FORBID COMMERCE FROM MOVING AND THUS DESTROY IT AS TO
PARTICULAR COMMODITIES.  BUT IT IS INSISTED THAT THE ADJUDGED CASES IN
THIS COURT ESTABLISH THE DOCTRINE THAT THE POWER TO REGULATE GIVEN TO
CONGRESS INCIDENTALLY INCLUDES THE AUTHORITY TO PROHIBIT THE MOVEMENT
OF ORDINARY COMMODITIES AND THEREFORE THAT THE SUBJECT IS NOT OPEN FOR
DISCUSSION.  THE CASES DEMONSTRATE THE CONTRARY.  THEY REST UPON THE
CHARACTER OF THE PARTICULAR SUBJECTS DEALT WITH AND THE FACT THAT THE
SCOPE OF GOVERNMENTAL AUTHORITY, STATE OR NATIONAL, POSSESSED OVER THEM
IS SUCH THAT THE AUTHORITY TO PROHIBIT IS AS TO THEM BUT THE EXERTION
OF THE POWER TO REGULATE.  ...  (P. 276)  IN OUR VIEW THE NECESSARY
EFFECT OF THIS ACT IS, BY MEANS OF A PROHIBITION AGAINST THE MOVEMENT
IN INTERSTATE COMMERCE OF ORDINARY COMMERCIAL COMMODITIES, TO REGULATE
THE HOURS OF LABOR OF CHILDREN IN FACTORIES AND MINES WITHIN THE
STATES, A PURELY STATE AUTHORITY.  THUS THE ACT IN A TWOFOLD SENSE IS
REPUGNANT TO THE CONSTITUTION.  IT NOT ONLY TRANSCENDS THE AUTHORITY
DELEGATED TO CONGRESS OVER COMMERCE BUT ALSO EXERTS A POWER AS TO A
PURELY LOCAL MATTER TO WHICH THE FEDERAL AUTHORITY DOES NOT EXTEND. 
THE FAR REACHING RESULT OF UPHOLDING THE ACT CANNOT BE MORE PLAINLY
INDICATED THAN BY POINTING OUT THAT IF CONGRESS CAN THUS REGULATE
MATTERS ENTRUSTED TO LOCAL AUTHORITY BY PROHIBITION OF THE MOVEMENT OF
COMMODITIES IN INTERSTATE COMMERCE, ALL FREEDOM OF COMMERCE WILL BE AT
AN END, AND THE POWER OF THE STATES OVER LOCAL MATTERS MAY BE
ELIMINATED, AND THUS OUR SYSTEM OF GOVERNMENT BE PRACTICALLY
DESTROYED." 

HERETOFORE, IN CASES INVOLVING THE POWER OF CONGRESS TO FORBID OR
CONDITION TRANSPORTATION IN INTERSTATE COMMERCE, THIS COURT HAS BEEN
CAREFUL TO DETERMINE WHETHER, IN VIEW OF THE NATURE AND CHARACTER OF
THE SUBJECT, THE MEASURE COULD BE SUSTAINED AS AN APPROPRIATE
REGULATION OF COMMERCE.*  IF CONGRESS HAD THE ABSOLUTE POWER NOW
ATTRIBUTED TO IT BY THE DECISION JUST ANNOUNCED, THE OPINIONS IN THESE
CASES WERE UNNECESSARY AND UTTERLY BESIDE THE MARK. 

*LOTTERY CASE, 188 U.S. 321, 355 ET SEQ. UNITED STATES V. DELAWARE &
HUDSON CO., 213 U.S. 366, 415.  HIPOLITE EGG CO. V. UNITED STATES, 220
U.S. 45, 57-58.  HOKE V. UNITED STATES, 227 U.S. 308, 321-323.  SEVEN
CASES V. UNITED STATES, 239 U.S. 510, 514.  CAMINETTI V. UNITED STATES,
242 U.S. 470, 491-492.  HAMMER V. DAGENHART, 247 U.S. 251, 270 ET SEQ.
BROOKS V. UNITED STATES, 267 U.S. 432, 436-438.  SEE WILSON V. NEW, 243
U.S. 332, 346.  CF. CLARK DISTILLING CO. V. WESTERN MD. RY. CO., 242
U.S. 311, 325.  UNITED STATES V. HILL, 248 U.S. 420.  KENTUCKY WHIP &
COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299 U.S. 334, 346 ET SEQ. 

FOR REASONS ABOVE SUGGESTED, I AM OF OPINION: 

THE PENALTY IS LAID ON THE FARMER TO PREVENT PRODUCTION IN EXCESS OF
HIS QUOTA.  IT IS THEREFORE INVALID. 

IF THE PENALTY IS IMPOSED FOR MARKETING IN INTERSTATE COMMERCE, IT IS
A REGULATION NOT AUTHORIZED BY THE COMMERCE CLAUSE. 

TO IMPOSE PENALTIES FOR MARKETING IN EXCESS OF QUOTAS NOT DISCLOSED
BEFORE PLANTING AND CULTIVATION IS TO DEPRIVE PLAINTIFFS OF THEIR
LIBERTY AND PROPERTY WITHOUT DUE PROCESS OF LAW. 

THE JUDGMENT OF THE DISTRICT COURT SHOULD BE REVERSED. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 
..END :




















U.S. TRUST CO. V. HELVERING, 307 U.S. 57 


NO. 453.  ARGUED MARCH 3, 1939.  - DECIDED APRIL 17, 1939.  - 98 F.2D
734, AFFIRMED. 


1.  AN ESTATE TAX IS NOT A TAX UPON THE PROPERTY OF WHICH AN ESTATE IS
COMPOSED, BUT IS AN EXCISE UPON THE TRANSFER OF OR SHIFTING IN
RELATIONSHIPS TO PROPERTY AT DEATH.  P. 60. 

2.  THE PROCEEDS OF A WAR RISK INSURANCE POLICY PAYABLE TO A DECEASED
VETERAN'S WIDOW WERE PROPERLY INCLUDED IN HIS GROSS ESTATE FOR THE
PURPOSE OF COMPUTING THE FEDERAL ESTATE TAX.  REVENUE ACT OF 1926, SEC.
302(G), AS AMENDED.  P. 60. 

3.  SECTION 22 OF THE WORLD WAR VETERANS' ACT, 1924, PROVIDING THAT
SUCH INSURANCE "SHALL BE EXEMPT FROM ALL TAXATION," DOES NOT PREVENT. 
P. 59. 

4.  NO PROVISION OF THE GOVERNMENT'S CONTRACT WITH AN INSURED VETERAN
IS IMPAIRED IN VIOLATION OF THE FIFTH AMENDMENT BY THE INCLUSION IN HIS
GROSS ESTATE OF PROCEEDS OF A WAR RISK INSURANCE POLICY FOR THE PURPOSE
OF COMPUTING THE FEDERAL ESTATE TAX.  P. 60. 

UNITED STATES TRUST CO., EXECUTOR, V. HELVERING, COMMISSIONER OF
INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 305 U.S. 591, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS SUSTAINING A DETERMINATION OF A DEFICIENCY IN
FEDERAL ESTATE TAX. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION IS WHETHER PROCEEDS OF A WAR RISK INSURANCE POLICY
PAYABLE TO A DECEASED VETERAN'S WIDOW WERE PROPERLY INCLUDED IN HIS
GROSS ESTATE UNDER A FEDERAL ESTATE TAX. 

THE FEDERAL ESTATE TAX IN QUESTION  FN1  INCLUDED IN A DECEDENT'S
GROSS ESTATE THE AMOUNT IN EXCESS OF FORTY THOUSAND DOLLARS RECEIVED BY
"BENEFICIARIES (OTHER THAN HIS ESTATE) AS INSURANCE UNDER POLICIES
TAKEN OUT BY THE DECEDENT UPON HIS OWN LIFE."  THIS VETERAN'S TOTAL
LIFE INSURANCE FOR BENEFICIARIES OTHER THAN HIS ESTATE EXCEEDED AT
DEATH THE STATUTORY EXEMPTION OF FORTY THOUSAND DOLLARS, IF HIS WAR
RISK INSURANCE POLICY PAYABLE TO HIS WIDOW IN THE SUM OF TEN THOUSAND
DOLLARS IS INCLUDED.  THE COMMISSIONER ASSESSED AN ESTATE TAX MEASURED
BY THIS EXCESS.  AS DECEDENT'S EXECUTOR, PETITIONER CLAIMED THAT
PROCEEDS OF THE WAR RISK INSURANCE POLICY COULD NOT BE INCLUDED IN THE
ESTATE BECAUSE OF SEC. 22 OF THE WORLD WAR VETERANS' ACT, 1924,
PROVIDING THAT SUCH "INSURANCE  ...  SHALL BE EXEMPT FROM ALL
TAXATION."  FN2  THE BOARD OF TAX APPEALS UPHELD THE DETERMINATION OF
THE COMMISSIONER, AND THE CIRCUIT COURT OF APPEALS AFFIRMED.  FN3 

CONGRESS HAS MANIFESTED A CONSISTENT POLICY IN THE REVENUE ACTS FROM
1918 TO 1934, WHEN THE VETERAN DIED, BY IMPOSITIONS OF ESTATE TAXES
UPON TRANSFERS AT DEATH OF PROCEEDS OF ALL LIFE INSURANCE (NOT PAYABLE
TO AN INSURED'S ESTATE) IN EXCESS OF FORTY THOUSAND DOLLARS.  THIS HAS
BEEN IN HARMONY WITH A GENERAL PLAN OF GRADUATING INCOME AND
INHERITANCE TAXES TO ACCORD WITH THE RESPECTIVE SIZES OF INCOMES AND
ESTATES.  FN4  AND THE TREASURY REGULATIONS HAVE STATED THAT "THE
STATUTE PROVIDES FOR THE INCLUSION IN THE GROSS ESTATE OF  ...  ALL
INSURANCE (NOT FOR THE BENEFIT OF AN ESTATE)  ...  TO THE EXTENT THAT
IT EXCEEDS  ...  FORTY THOUSAND DOLLARS  ...  THE TERM 'INSURANCE'
REFERS TO LIFE INSURANCE OF EVERY DESCRIPTION,  ..."  FN5 

BUT PETITIONER INVOKES THE PROVISION OF THE WORLD WAR VETERANS' ACT,
1924, THAT INSURANCE THEREUNDER "SHALL BE EXEMPT FROM ALL TAXATION." 
AN AMENDMENT TO THAT ACT OF AUGUST 12, 1935  FN6 PROVIDES THAT
"PAYMENTS OF BENEFITS DUE OR TO BECOME DUE  ...  SHALL BE EXEMPT FROM
TAXATION  ..."  HOWEVER, THIS AMENDMENT SERVED ONLY TO CLARIFY THE
ORIGINAL PROVISION FOR EXEMPTION, WITHOUT MORE.  FN7  UNLESS RESORT IS
HAD TO ENLARGEMENT BY IMPLICATION, THIS EXEMPTION MEANS ONLY THAT THE
PROCEEDS OR BENEFITS OF A WAR RISK POLICY ARE EXEMPT FROM TAXATION. 
EXEMPTIONS FROM TAXATION DO NOT REST UPON IMPLICATION.  FN8 

AN ESTATE TAX IS NOT LEVIED UPON THE PROPERTY OF WHICH AN ESTATE IS
COMPOSED.  IT IS AN EXCISE IMPOSED UPON THE TRANSFER OF OR SHIFTING IN
RELATIONSHIPS TO PROPERTY AT DEATH.  FN9  THE TAX HERE IS NO LESS AN
ESTATE TAX BECAUSE THE PROCEEDS OF THE POLICY WERE PAID BY THE
GOVERNMENT DIRECTLY TO THE BENEFICIARY; THE TAXING POWER WAS
NEVERTHELESS EXERCISED UPON "THE TRANSFER OF PROPERTY PROCURED THROUGH
EXPENDITURES BY THE DECEDENT WITH THE PURPOSE, EFFECTED AT HIS DEATH,
OF HAVING IT PASS TO ANOTHER."  FN10  IN AN ANALOGOUS SITUATION,
FEDERAL BONDS EXEMPT BY STATUTE FROM ALL TAXATION HAVE BEEN HELD
SUBJECT TO A FEDERAL INHERITANCE TAX.  FN11  AND STATE INHERITANCE
TAXES CAN BE MEASURED BY THE VALUE OF FEDERAL BONDS EXEMPTED BY STATUTE
FROM STATE TAXATION IN ANY FORM.  FN12  SIMILARLY, THE STATUTORY
IMMUNITY OF WAR RISK INSURANCE FROM TAXATION DOES NOT INCLUDE AN
IMMUNITY FROM EXCISES UPON THE OCCASION OF SHIFTS OF ECONOMIC INTERESTS
BROUGHT ABOUT BY THE DEATH OF AN INSURED. 

PETITIONER MAKES THE FURTHER POINT THAT THE INCLUSION OF PROCEEDS OF
THE WAR RISK POLICY FOR PURPOSES OF AN ESTATE TAX AMOUNTS TO AN
IMPAIRMENT OF THE GOVERNMENT'S CONTRACT WITH THE INSURED VETERAN, IN
VIOLATION OF THE FIFTH AMENDMENT TO THE CONSTITUTION.  BUT NEITHER THE
ACT OF 1924, AS AMENDED, NOR ANY OF THE PROVISIONS OF THE WAR RISK
INSURANCE ACT PURPORTED TO EXEMPT WAR RISK INSURANCE FROM DEATH
DUTIES.  THEREFORE, NO STATUTORY EXEMPTION WHICH COULD BE CONSIDERED A
PROVISION OF THE INSURANCE CONTRACT HAS BEEN AFFECTED BY THE IMPOSITION
OF THE ESTATE TAX IN THIS CASE.  THE JUDGMENT IS AFFIRMED. 

FN1  SEC. 302(G) REVENUE ACT OF 1926, AS AMENDED. 

FN2  43 STAT. 607, 613. 

FN3  98 F.2D 734.  STATE COURTS HAVE DIFFERED AS TO WHETHER PROCEEDS
OF WAR RISK INSURANCE ARE SUBJECT TO DEATH DUTIES IMPOSED BY THE
STATES.  SEE, FOR EXAMPLE, IN RE ESTATE OF HARRIS, 179 MINN. 450; 229
N.W. 781; TAX COMMISSION V. RIFE, 119 OH. ST. 83; 162 N.E. 390;
WANZEL'S ESTATE, 295 PA. 419; 145 A. 512; WATKINS V. HALL, 107 W. VA.
202; 147 S.E. 876(HOLDING THESE PROCEEDS NOT SUBJECT TO SUCH EXCISES);
AND MATTER OF SABIN, 224 APP. DIV. 702; 228 N.Y.S. 890; MATTER OF DEAN,
131 MISC. 125; 225 N.Y.S. 543(CONTRA).  IN VIEW OF THIS FACT AND THE
IMPORTANCE OF AN AUTHORITATIVE INTERPRETATION OF THE FEDERAL STATUTES
INVOLVED, WE GRANTED CERTIORARI, 305 U.S. 591. 

FN4  SEE, 44 STAT. 9, 21, 22; 48 STAT. 680, 684, 754. 

FN5  TREASURY REGULATION NO. 70(1929 EDITION), ARTICLES 25 AND 27;
TREASURY REGULATION NO. 80, (1934 EDITION), ARTICLES 25 AND 27. 

FN6  49 STAT. 607, 609. 

FN7  LAWRENCE V. SHAW, 300 U.S. 245, 249. 

FN8  RAPID TRANSIT CORP. V. NEW YORK, 303 U.S. 573, 592, 593; TROTTER
V. TENNESSEE, 290 U.S. 354, 356, 357; J.W. PERRY CO. V. NORFOLK, 220
U.S. 472, 480; CHICAGO THEOLOGICAL SEMINARY V. ILLINOIS, 188 U.S. 662,
672. 

FN9  REINECKE V. NORTHERN TRUST CO., 278 U.S. 339, 347; CHASE
NATIONAL BANK V. UNITED STATES, 278 U.S. 327, 334; UNITED STATES V.
JACOBS, 306 U.S. 363, 367. 

FN10  CHASE NATIONAL BANK V. UNITED STATES, SUPRA, 337. 

FN11  MURDOCK V. WARD, 178 U.S. 139. 

FN12  PLUMMER V. COLER, 178 U.S. 115. 
..END :






















MCCRONE V. UNITED STATES, 307 U.S. 61 


NO. 660.  ARGUED MARCH 30, 1939.  - DECIDED APRIL 17, 1939.  - 100 F.2D
322, AFFIRMED. 


1.  CONTEMPT OF AN ORDER OF THE DISTRICT COURT, ISSUED UPON THE
APPLICATION OF AN AGENT OF THE BUREAU OF INTERNAL REVENUE AND REQUIRING
THE PERSON CITED TO APPEAR AND TESTIFY BEFORE SUCH OFFICIAL IN A LAWFUL
INVESTIGATION OF THE TAX LIABILITY OF ANOTHER, WAS A CIVIL CONTEMPT;
AND A JUDGMENT THAT THE CONTEMNOR BE HELD IN JAIL UNTIL HE PURGED
HIMSELF OF THE CONTEMPT WAS APPEALABLE ONLY IN ACCORDANCE WITH THE
APPLICABLE STATUTORY PROVISIONS GOVERNING APPEALS FROM JUDGMENTS IN
CIVIL CASES.  P. 64. 

2.  AN APPEAL FROM SUCH A JUDGMENT OF CONTEMPT, WHICH WAS NOT APPLIED
FOR OR ALLOWED BY THE TRIAL JUDGE OR A JUDGE OF THE CIRCUIT COURT OF
APPEALS, AS REQUIRED BY THE APPLICABLE STATUTORY PROVISIONS, WAS
PROPERLY DISMISSED BY THE APPELLATE COURT FOR WANT OF JURISDICTION.  P.
65. 

3.  A CONTEMPT ARISING OUT OF A PROCEEDING TO WHICH THE UNITED STATES
OR ITS AGENTS ARE PARTIES IS NOT NECESSARILY A CRIMINAL CONTEMPT.  P.
63. 

4.  RULE 73 OF THE RULES OF CIVIL PROCEDURE, GOVERNING APPEALS TO THE
CIRCUIT COURT OF APPEALS, IS INAPPLICABLE TO A PROCEEDING IN RESPECT OF
WHICH THE STATUTORY TIME ALLOWED FOR APPEAL HAD EXPIRED WITHOUT
APPLICATION PRIOR TO THE EFFECTIVE DATE OF THE RULES.  SUCH A
PROCEEDING WAS NOT "PENDING" WITHIN THE MEANING OF RULE 86.  P. 65. 

MCCRONE V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 306 U.S. 625, TO REVIEW THE DISMISSAL OF AN APPEAL FROM A
JUDGMENT OF CONTEMPT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE COURT OF APPEALS DISMISSED PETITIONER'S APPEAL FROM A JUDGMENT OF
CONTEMPT FOR FAILURE TO OBEY A DISTRICT COURT'S ORDER TO TESTIFY BEFORE
AN INTERNAL REVENUE OFFICIAL.  FN1  THIS DISMISSAL WAS PROPER IF THE
CONTEMPT PROCEEDING WAS CIVIL AND NOT CRIMINAL.  A NOTICE OF APPEAL WAS
FILED AND A BILL OF EXCEPTIONS SIGNED.  BUT PETITIONER'S APPEAL WAS
NOT, AS APPEALS FROM CIVIL JUDGMENTS WERE REQUIRED TO BE, APPLIED FOR
OR ALLOWED BY THE TRIAL JUDGE OR A JUDGE OF THE COURT OF APPEALS.  FN2 

THE FACTS DISCLOSE: 

ON APRIL 21, 1938, AN INTERNAL REVENUE AGENT, ACTING UNDER 26 U.S.C.,
SEC. 1514(COPIED IN THE MARGIN),  FN3  SERVED PETITIONER WITH SUMMONS
TO APPEAR BEFORE HIM AND TESTIFY IN CONNECTION WITH THE TAX LIABILITY
OF ANOTHER.  PETITIONER RESPONDED TO THE SUMMONS, BUT DECLINED TO GIVE
ANY STATEMENT OR INFORMATION AS TO THE MATTER UNDER INQUIRY. 
THEREUPON, BOTH THE AGENT AND THE ASSISTANT UNITED STATES ATTORNEY FOR
THE DISTRICT APPEARED BEFORE THE DISTRICT COURT, AND THE AGENT FILED AN
AFFIDAVIT OF FACTS AND PRAYED THAT PETITIONER BE ORDERED TO SUBMIT TO
SUCH QUESTIONS "AS MAY BE PROPOUNDED TO HIM  ...  THAT ARE MATERIAL AND
PERTINENT TO THE SUBJECT MATTER" OF THE INVESTIGATION.  AFTER HEARING,
IN WHICH PETITIONER APPEARED, THE DISTRICT COURT ORDERED HIM TO APPEAR
BEFORE THE AGENT AND TESTIFY UPON "ALL MATTERS AND FACTS WITHIN  ...
(HIS) KNOWLEDGE AND CONCERNING THE SUBJECT MATTER OF THE INQUIRY AND
INVESTIGATION, ..."  PETITIONER DID SO APPEAR BUT AGAIN DECLINED TO
ANSWER THE AGENT'S QUESTIONS.  AFTER A SECOND HEARING BY THE DISTRICT
COURT, PETITIONER WAS FOUND IN CONTEMPT FOR FAILURE TO OBEY THE COURT'S
PREVIOUS ORDER TO TESTIFY BEFORE THE AGENT AND WAS ORDERED "HELD IN
...  JAIL  ...  UNTIL  ...  (HE) PURGES HIMSELF OF  ...  CONTEMPT BY
OBEYING THE ORDER" TO TESTIFY. 

PETITIONER INSISTS THAT NO CIVIL ACTION WAS INVOLVED HERE AND THAT
PROCEEDINGS TO WHICH THE UNITED STATES AND ITS AGENTS ARE PARTIES CAN
NOT BE CIVIL.  FN4  HOWEVER, ARTICLE 3, SEC. 2, OF THE CONSTITUTION,
EXPRESSLY CONTEMPLATES THE UNITED STATES AS A PARTY TO CIVIL
PROCEEDINGS BY EXTENDING THE JURISDICTION OF THE FEDERAL JUDICIARY "TO
CONTROVERSIES TO WHICH THE UNITED STATES SHALL BE A PARTY."  AN ACTION
BY THE INTERSTATE COMMERCE COMMISSION TO COMPEL A WITNESS TO TESTIFY IS
"A DIRECT CIVIL PROCEEDING, EXPRESSLY AUTHORIZED BY AN ACT OF CONGRESS
IN THE NAME OF THE COMMISSION, AND UNDER THE DIRECTION OF THE ATTORNEY
GENERAL OF THE UNITED STATES, AGAINST THE WITNESS  ...  REFUSING TO
TESTIFY,  ..."  FN5  SO HERE, THE MERE PRESENCE OF THE UNITED STATES AS
A PARTY, ACTING THROUGH ITS AGENTS, DOES NOT IMPRESS UPON THE
CONTROVERSY THE ELEMENTS OF A CRIMINAL PROCEEDING.  FN6  IN ACCORDANCE
WITH ITS CONSTITUTIONAL AUTHORITY TO DO SO, CONGRESS HAS EXPRESSLY
AUTHORIZED SUCH A PROCEEDING BY AN AGENT OF THE UNITED STATES IN THE
FEDERAL COURTS "TO COMPEL  ...  ATTENDANCE, TESTIMONY, OR PRODUCTION OF
BOOKS, PAPERS, OR OTHER DATA."  26 U.S.C. SEC. 1523.  FN7 

WHILE PARTICULAR ACTS DO NOT ALWAYS READILY LEND THEMSELVES TO
CLASSIFICATION AS CIVIL OR CRIMINAL CONTEMPTS, A CONTEMPT IS CONSIDERED
CIVIL WHEN THE PUNISHMENT IS WHOLLY REMEDIAL, SERVES ONLY THE PURPOSES
OF THE COMPLAINANT, AND IS NOT INTENDED AS A DETERRENT TO OFFENSES
AGAINST THE PUBLIC.  FN8  HERE, THE SUMMONS SERVED ON PETITIONER
REQUIRED ONLY THAT HE TESTIFY IN A TAX INQUIRY PROPERLY CONDUCTED BY AN
AGENT OF THE BUREAU OF INTERNAL REVENUE.  AND THE AGENT'S PETITION TO
THE DISTRICT COURT, TO WHICH WE MAY LOOK IN DETERMINING THE NATURE OF
THE PROCEEDING, FN9  INVOKED JUDICIAL ASSISTANCE SOLELY IN OBTAINING
PETITIONER'S TESTIMONY.  AUTHORITY OF THE COURT WAS SOUGHT TO BUTTRESS
THE PROCEDURE FOR COLLECTION OF TAXES AND NOT IN "VINDICATION OF THE
PUBLIC JUSTICE,"  FN10  AS IN CRIMINAL CASES. 

THE JUDGMENT OF CONTEMPT WAS CIVIL, AND APPEAL FROM IT WAS GOVERNED
BY THE STATUTORY RULES OF CIVIL APPEALS. 

THERE REMAINS THE SUGGESTION THAT THE APPEAL IN QUESTION CAN BE
CONSIDERED A CIVIL APPEAL PROPERLY TAKEN UNDER RULE 73 OF THE NEW
FEDERAL RULES OF CIVIL PROCEDURE WHICH BECAME EFFECTIVE SEPTEMBER 16,
1938.  FN11  HOWEVER, PETITIONER'S NOTICE OF APPEAL WAS FILED MAY 2,
1938.  THE CONTROLLING STATUTE REQUIRED APPLICATION FOR ALLOWANCE OF A
CIVIL APPEAL WITHIN THREE MONTHS AFTER JUDGMENT FROM WHICH APPEAL WAS
SOUGHT.  THE THREE MONTHS EXPIRED JULY 28, 1938, AND THE CONTEMPT
JUDGMENT HAD BECOME UNAPPEALABLE WELL BEFORE THE EFFECTIVE DATE OF THE
NEW RULES.  THEREFORE, PETITIONER IS NOT AIDED BY THE PROVISION OF RULE
86 THAT THE NEW RULES SHALL "GOVERN ALL  ... ACTIONS THEN PENDING,
(SEPTEMBER 16, 1938)  ..."  THIS ACTION - FROM WHICH THERE WAS THEN NO
RIGHT OF APPEAL - WAS NOT PENDING WITHIN THE MEANING OF THE RULE. 

THE COURT OF APPEALS WAS NOT IN ERROR IN DISMISSING PETITIONER'S
APPEAL FOR FAILURE TO COMPLY WITH THE STATUTORY REQUIREMENTS GOVERNING
CIVIL APPEALS.  ITS JUDGMENT IS AFFIRMED. 

FN1  100 F.2D 322. 

FN2  28 U.S.C. SEC. 230; ALASKA PACKERS ASSN. V. PILLSBURY, 301 U.S.
174. 

FN3  "THE COMMISSIONER, FOR THE PURPOSE OF ASCERTAINING THE
CORRECTNESS OF ANY RETURN OR FOR THE PURPOSE OF MAKING A RETURN WHERE
NONE HAS BEEN MADE, IS AUTHORIZED, BY ANY OFFICER OR EMPLOYEE OF THE
BUREAU OF INTERNAL REVENUE, INCLUDING THE FIELD SERVICE, DESIGNATED BY
HIM FOR THAT PURPOSE, TO EXAMINE ANY BOOKS, PAPERS, RECORDS, OR
MEMORANDA BEARING UPON THE MATTERS REQUIRED TO BE INCLUDED IN THE
RETURN, AND MAY REQUIRE THE ATTENDANCE OF THE PERSON RENDERING THE
RETURN OR OF ANY OFFICER OR EMPLOYEE OF SUCH PERSON, OR THE ATTENDANCE
OF ANY OTHER PERSON HAVING KNOWLEDGE IN THE PREMISES, AND MAY TAKE HIS
TESTIMONY WITH REFERENCE TO THE MATTER REQUIRED BY LAW TO BE INCLUDED
IN SUCH RETURN, WITH POWER TO ADMINISTER OATHS TO SUCH PERSON OR
PERSONS." 

FN4  PETITIONER RELIES ON FEDERAL TRADE COMM'N V. A. MCLEAN & SON, 94
F.2D 802, 840.  THERE THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT
SAID, "WE BECAME CONVINCED THAT THE (FEDERAL TRADE) COMMISSION, AN
AGENCY OF THE GOVERNMENT, REPRESENTING NO PRIVATE INTEREST OF ITS OWN,
BUT ACTING SOLELY IN THE PUBLIC INTEREST, HAD NO SUCH STANDING AS A
PRIVATE PARTY THAT IT COULD UTILIZE PROCEDURE (CIVIL CONTEMPT) INTENDED
TO SAFEGUARD THE RIGHTS AND INTERESTS OF PRIVATE PARTIES."  BECAUSE OF
THE CONFLICT ON THIS POINT IN THE JUDGMENT BELOW WE GRANTED
CERTIORARI. 

FN5  INTERSTATE COMMERCE COMM'N V. BRIMSON, 154 U.S. 447, 470. 

FN6  CF., HELVERING V. MITCHELL, 303 U.S. 391, 402. 

FN7  CF., BROWNSON V. UNITED STATES, 32 F.2D 844, 848, 849; UNITED
STATES V. FIRST NATIONAL BANK, 295 F. 142, AFFIRMED 267 U.S. 576. 

FN8  GOMPERS V. BUCKS STOVE & RANGE CO., 221 U.S. 418, 441; FOX V.
CAPITAL CO., 299 U.S. 105; LAMB V. CRAMER, 285 U.S. 217, 220, 221;
ORIEL V. RUSSELL, 278 U.S. 358, 363; EX PARTE GROSSMAN, 267 U.S. 87,
111; UNION TOOL CO. V. WILSON, 259 U.S. 107; IN RE MERCHANTS' STOCK
CO., 223 U.S. 629; MATTER OF CHRISTENSEN ENGINEERING CO., 194 U.S. 458;
BESSETTE V. W.B. CONKEY CO., 194 U.S. 324. 

FN9  CF., LAMB V. CRAMER, SUPRA, 220; GOMPERS V. BUCKS STOVE & RANGE
CO., SUPRA, 448. 

FN10  CF. FOX V. CAPITAL CO., SUPRA, 108. 

FN11  "RULE 73.  APPEAL TO A CIRCUIT COURT OF APPEALS. 

HOW TAKEN.  WHEN AN APPEAL IS PERMITTED BY LAW FROM A DISTRICT COURT
TO A CIRCUIT COURT OF APPEALS AND WITHIN THE TIME PRESCRIBED, A PARTY
MAY APPEAL FROM A JUDGMENT BY FILING WITH THE DISTRICT COURT A NOTICE
OF APPEAL.  FAILURE OF THE APPELLANT TO TAKE ANY OF THE FURTHER STEPS
TO SECURE THE REVIEW OF THE JUDGMENT APPEALED FROM DOES NOT AFFECT THE
VALIDITY OF THE APPEAL, BUT IS GROUND ONLY FOR SUCH REMEDIES AS ARE
SPECIFIED IN THIS RULE OR, WHEN NO REMEDY IS SPECIFIED, FOR SUCH ACTION
AS THE APPELLATE COURT DEEMS APPROPRIATE, WHICH MAY INCLUDE DISMISSAL
OF THE APPEAL." 
..END :





GIBBS V. BUCK, 307 U.S. 66 


NO. 276.  ARGUED JANUARY 10, 1939.  - DECIDED APRIL 17, 1939.  -
AFFIRMED. 


1.  THE QUESTION OF JURISDICTIONAL AMOUNT IS PROPERLY DETERMINED ON
THE BILL AND MOTION TO DISMISS, WHERE THE MOTION IN EFFECT TRAVERSES
ONLY A GENERAL ALLEGATION OF THE AMOUNT INVOLVED, AND ADMITS THE OTHER
ALLEGATIONS, TOUCHING THE SUBJECT, MERELY CHALLENGING THEIR SUFFICIENCY
TO SHOW JURISDICTION.  P. 71. 

ON SUBMISSION OF THE QUESTION ON BILL AND MOTION TO DISMISS, THE
BURDEN OF SHOWING JURISDICTIONAL VALUE IN CONTROVERSY IS ON THE
PLAINTIFF.  P. 72. 

2.  IN A CLASS SUIT BY AND ON BEHALF OF THE MEMBERS OF A SOCIETY WHO
HAVE A COMMON AND UNDIVIDED INTEREST, THE JURISDICTIONAL AMOUNT OR
VALUE IS INVOLVED IF FOR ANY MEMBER, WHO IS A PARTY, THE MATTER IN
CONTROVERSY IS OF THAT VALUE, OR IF TO THE AGGREGATE OF ALL MEMBERS IN
THE SUIT IT IS OF THAT VALUE.  P. 72. 

3.  IN A SUIT TO RESTRAIN ENFORCEMENT OF A STATUTE PROHIBITING A
BUSINESS, THE AMOUNT IN CONTROVERSY IS THE VALUE OF THE RIGHT TO
CONDUCT THE BUSINESS FREE OF SUCH PROHIBITION.  P. 74. 

THE COST OF COMPLIANCE IS EVIDENCE OF THE VALUE OF THE RIGHT TO BE
FREE FROM A STATUTORY PROHIBITION.  P. 75. 

4.  OWNERS OF THE COPYRIGHTS OF MUSICAL COMPOSITIONS, WITH A VIEW TO
PROTECTION AGAINST UNLICENSED PUBLIC PERFORMANCES FOR PROFIT FOR WHICH
THEY RECEIVED NO COMPENSATION, GRANTED TO AN UNINCORPORATED
ASSOCIATION, OF WHICH THEY WERE THE MEMBERS, THE EXCLUSIVE RIGHT OF
PUBLIC PERFORMANCE FOR A TERM OF YEARS.  IT WAS THE FUNCTION OF THE
SOCIETY TO PROTECT ITSELF AND ITS MEMBERS FROM PIRACIES AND TO LICENSE
PUBLIC PERFORMANCES BY OTHERS, FOR ROYALTIES WHICH, AFTER CERTAIN
DEDUCTIONS, IT DISTRIBUTED AMONG ITS MEMBERS, PURSUANT TO ITS ARTICLES
OF ASSOCIATION.  A FLORIDA STATUTE UNDERTOOK TO FORBID AND PENALIZE
SUCH COMBINATIONS AS UNLAWFUL MONOPOLIES FIXING PRICES IN RESTRAINT OF
TRADE.  IN A SUIT BY THE SOCIETY AND SOME OF ITS MEMBERS REPRESENTING
ALL, SEEKING TO ENJOIN ENFORCEMENT OF THE STATUTE AS AN
UNCONSTITUTIONAL INVASION OF COPYRIGHT,  - HELD: 

(1)  AS THE MEMBERS OWN THE COPYRIGHTS, LESS THE LIMITED ASSIGNMENT
TO THE SOCIETY OF THE RIGHT OF PUBLIC PERFORMANCE FOR PROFIT, AND SHARE
IN THE EARNINGS THROUGH MANDATORY DISTRIBUTION UNDER THE ARTICLES OF
ASSOCIATION AND NOT BY WAY OF DIVIDENDS, THEY ARE PROPER PARTIES TO THE
ACTION.  P. 73. 

(2)  SINCE THE MEMBERS, BECAUSE OF THE INTERPOSITION OF THE STATUTE,
CAN NOT IN COMBINATION LICENSE PRODUCTION AND COLLECT FEES IN FLORIDA,
THEY HAVE A COMMON AND UNDIVIDED INTEREST IN THE MATTER IN CONTROVERSY
IN THIS CLASS SUIT.  P. 74. 

(3)  ADMITTED ALLEGATIONS OF THE BILL SUPPORT A FINDING THAT THE
MATTER IN CONTROVERSY - THE VALUE OF THE AGGREGATE RIGHTS OF ALL
MEMBERS TO CONDUCT THEIR BUSINESS THROUGH THE SOCIETY - EXCEEDS $3,000
IN VALUE.  P. 75. 

MCNUTT V. GENERAL MOTORS ACCEPTANCE CORP., 298 U.S. 178, AND KVOS,
INC. V. ASSOCIATED PRESS, 299 U.S. 269, DISTINGUISHED. 

(4)  IN VIEW OF THE ALLEGATIONS OF THE BILL RAISING DOUBTS OF THE
CONSTITUTIONALITY OF THE ACT, AND IN VIEW OF THE PENALTIES ATTACHED TO
ITS VIOLATION, A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF
ACTION WAS PROPERLY OVERRULED.  P. 76. 

5.  A MOTION TO DISMISS A BILL FOR FAILURE TO STATE A CAUSE OF ACTION
IS DETERMINED ON THE FACE OF THE BILL WITHOUT RESORT TO AFFIDAVITS USED
ON THE ACCOMPANYING MOTION FOR A PRELIMINARY INJUNCTION.  P. 76. 

6.  WHETHER TO GRANT OR REFUSE A MOTION TO DISMISS BEFORE ANSWER, IS
LARGELY A MATTER OF DISCRETION FOR THE TRIAL COURT.  P. 76. 

7.  WHERE THE BILL MAKES AN ATTACK UPON THE CONSTITUTIONALITY OF A
STATE STATUTE, SUPPORTED BY FACTUAL ALLEGATIONS SUFFICIENTLY STRONG, AS
HERE, TO RAISE GRAVE DOUBTS OF THE CONSTITUTIONALITY OF THE ACT IN THE
MIND OF THE TRIAL COURT, THE MOTION TO DISMISS FOR FAILURE TO STATE A
CAUSE OF ACTION SHOULD BE DENIED.  ID. 

GIBBS, ATTORNEY GENERAL, ET AL. V. BUCK ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF FLORIDA. 

APPEAL FROM AN ORDER OF THE DISTRICT COURT, OF THREE JUDGES,
OVERRULING A MOTION TO DISMISS THE BILL AND GRANTING AN INTERLOCUTORY
INJUNCTION, IN A SUIT TO RESTRAIN ENFORCEMENT OF A FLORIDA STATUTE
FORBIDDING COMBINATIONS OF OWNERS OF COPYRIGHTED MUSICAL COMPOSITIONS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE ORDER OF A THREE-JUDGE COURT REFUSING TO
DISMISS A BILL OF COMPLAINT ON MOTION FOR FAILURE TO SET OUT FACTS
SUFFICIENT TO SHOW FEDERAL OR EQUITY JURISDICTION, OR TO CONSTITUTE A
CAUSE OF ACTION, AND GRANTING AN INTERLOCUTORY INJUNCTION AGAINST THE
ENFORCEMENT OF A FLORIDA STATUTE AIMED AT COMBINATIONS FIXING THE PRICE
FOR THE PRIVILEGE OF RENDERING PRIVATELY OR PUBLICLY FOR PROFIT
COPYRIGHTED MUSICAL COMPOSITIONS.  SEC. 266, JUD.  CODE. 

THE APPELLANT, THE STATE ATTORNEY GENERAL AND VARIOUS STATE
ATTORNEYS, ARE OFFICERS OF THE STATE OF FLORIDA CHARGED WITH THE
ENFORCEMENT OF THE ACT.  THE APPELLEES, COMPLAINANTS BELOW, ARE THE
AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, AN
UNINCORPORATED ASSOCIATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEW
YORK; GENE BUCK AS PRESIDENT OF THE SOCIETY; VARIOUS CORPORATIONS
PUBLISHING MUSICAL COMPOSITIONS; A NUMBER OF AUTHORS AND COMPOSERS OF
COPYRIGHTED MUSIC; AND SEVERAL NEXT OF KIN OF DECEASED COMPOSERS AND
AUTHORS.  THIS SUIT WAS BROUGHT BY COMPLAINANTS ON BEHALF OF THEMSELVES
AND OTHERS SIMILARLY SITUATED, MEMBERS OF THE SOCIETY, TOO NUMEROUS TO
MAKE IT PRACTICABLE TO JOIN THEM AS PLAINTIFFS IN A MATTER OF COMMON
AND GENERAL INTEREST.  FN1 

ONE OF THE RIGHTS GIVEN BY THE COPYRIGHT ACT IS THE EXCLUSIVE RIGHT
TO PERFORM COPYRIGHTED MUSICAL COMPOSITIONS IN PUBLIC FOR PROFIT.  FN2
THE BILL OF COMPLAINT ALLEGES THAT USERS OF MUSICAL COMPOSITIONS HAD
REFUSED TO RECOGNIZE THIS STATUTORY RIGHT AND TO PAY ROYALTIES FOR
PUBLIC PERFORMANCES FOR PROFIT, AND THAT AUTHORS, COMPOSERS AND
PUBLISHERS WERE UNABLE, INDIVIDUALLY, TO ENFORCE THEIR EXCLUSIVE RIGHT
BECAUSE OF THE EXPENSE OF DETECTING AND SUING FOR INFRINGEMENT
THROUGHOUT THE UNITED STATES.  THE SOCIETY WAS FOUNDED IN 1914 TO
LICENSE PERFORMANCE OF COPYRIGHTED MUSIC FOR PROFIT AND OTHERWISE
PROTECT THE COPYRIGHTS.  THE STATE STATUTE WAS DIRECTED AT
ORGANIZATIONS LIKE THE SOCIETY AND BECAME EFFECTIVE ON JUNE 9, 1937. 
FN3  SO FAR AS IS IMPORTANT HERE, THE STATUTE MAKES IT UNLAWFUL FOR
OWNERS OF COPYRIGHTED MUSICAL COMPOSITIONS TO COMBINE INTO ANY
CORPORATION, ASSOCIATION OR OTHER ENTITY TO FIX LICENSE FEES "FOR ANY
USE OR RENDITION OF COPYRIGHTED VOCAL OR INSTRUMENTAL MUSICAL
COMPOSITIONS FOR PRIVATE OR PUBLIC PERFORMANCE FOR PROFIT," WHEN THE
MEMBERS OF THE COMBINATION CONSTITUTE "A SUBSTANTIAL NUMBER OF THE
PERSONS, FIRMS OR CORPORATIONS WITHIN THE UNITED STATES" OWNING MUSICAL
COPYRIGHTS.  IT DECLARES THE COMBINATION AN UNLAWFUL MONOPOLY, THE
PRICEFIXING IN RESTRAINT OF TRADE, AND THE COLLECTION OF LICENSE FEES
AND ALL CONTRACTS BY THE COMBINATION ILLEGAL. 

THE BILL ATTACKED THE STATUTE AS CONTRARY TO THE CONSTITUTION AND
LAWS OF THE UNITED STATES AND THE CONSTITUTION OF FLORIDA.  MORE
SPECIFICALLY, IT URGED THAT THE LAW IMPINGED UPON RIGHTS GIVEN BY THE
COPYRIGHT ACT OF 1909, DEPRIVED COMPLAINANTS OF RIGHTS WITHOUT DUE
PROCESS OF LAW AND WITHOUT THE EQUAL PROTECTION OF THE LAWS, IMPAIRED
THE OBLIGATION OF CONTRACTS ALREADY EXECUTED, AND OPERATED AS AN EX
POST FACTO LAW. 

THERE WAS A FORMAL ALLEGATION THAT THE MATTER IN CONTROVERSY EXCEEDED
$3,000, EXCLUSIVE OF INTEREST AND COSTS.  IN ADDITION, THE BILL ALLEGED
THAT THE THREE PUBLISHERS OWNED COPYRIGHTS OF A VALUE IN EXCESS OF
$1,000,000 WHILE EACH OF THE INDIVIDUAL COMPLAINANTS OWNED COPYRIGHTS
WORTH IN EXCESS OF $100,000; THAT IT WOULD COST EACH INDIVIDUAL MORE
THAN $10,000 TO CREATE AN AGENCY IN FLORIDA TO PROTECT HIMSELF AGAINST
INFRINGEMENT BY UNAUTHORIZED PUBLIC PERFORMANCES FOR PROFIT, TO ISSUE
LICENSES AND TO CHECK ON THE ACCURACY OF USES REPORTED; THAT FEES
COLLECTED IN 1936 IN FLORIDA AMOUNTED TO $59,306.81 AND THAT SIMILAR
SUMS WERE EXPECTED IN THE FUTURE; AND THAT IN 1936 EACH OF THE THREE
PUBLISHERS RECEIVED MORE THAN $50,000 FROM THE SOCIETY AND EACH
INDIVIDUAL MORE THAN $5,000. 

A MOTION FOR A TEMPORARY INJUNCTION WAS MADE ON FEBRUARY 7, 1938, THE
SAME DAY THE BILL WAS FILED.  VOLUMINOUS AFFIDAVITS WERE PRESENTED IN
SUPPORT OF THE MOTION.  THEY TEND TO SUBSTANTIATE THE ALLEGATIONS OF
THE COMPLAINT ON THE VALUE OF THE COPYRIGHTS AND THE INCOME FROM THE
SOCIETY.  EACH PUBLISHER DEPOSED THAT IT HAD RECEIVED MORE THAN $50,000
FROM THE SOCIETY IN 1936, THAT ITS CONTRACT WITH THE SOCIETY HAD A
VALUE IN EXCESS OF $200,000, AND THAT TO FIX PRICES ON EACH COMPOSITION
FOR EACH USE IN FLORIDA WOULD REQUIRE AN EXPENDITURE OF MORE THAN
$25,000.  THE AFFIDAVITS OF THE INDIVIDUALS SHOWED ANNUAL INCOMES TO
THEM FROM THE SOCIETY OF FROM $3,000 TO $9,000; CONTRACTS WITH THE
SOCIETY WHICH THE AFFIANTS VALUED IN THE THOUSANDS OF DOLLARS AND AN
EXPENSE, IN ONE INSTANCE, AS HIGH AS $5,000 TO COMPLY WITH THE
REQUIREMENTS OF THE FLORIDA STATUTE. 

ON MARCH 3, 1938, THE APPELLANTS MOVED TO DISMISS ON SEVERAL GROUNDS:
(1) ABSENCE OF JURISDICTIONAL AMOUNT; (2) FAILURE TO STATE A CAUSE OF
ACTION; (3) WANT OF EQUITY AND OTHER OBJECTIONS NOT STRONGLY PRESSED AT
THIS TIME. 

THE DISTRICT COURT GRANTED AN INTERLOCUTORY INJUNCTION AND DENIED THE
MOTION TO DISMISS THE BILL.  IT THOUGHT THAT GREAT DAMAGE WOULD RESULT
UNLESS THE INJUNCTION ISSUED AND THAT THERE WAS GRAVE DOUBT OF THE
CONSTITUTIONALITY OF THE ACT.  ITS FINDINGS OF FACT AND CONCLUSIONS OF
LAW WERE FILED ABOUT A MONTH AND A HALF AFTER THE PER CURIAM DECISION. 
IT FOUND THAT "THE MATTER IN CONTROVERSY EXCEEDS $3,000 EXCLUSIVE OF
INTEREST AND COSTS." 

FEDERAL JURISDICTION.  - THE ISSUE WAS RAISED IN THE LOWER COURT BY A
MOTION TO DISMISS ON THE GROUND THAT IT AFFIRMATIVELY APPEARS "FROM THE
ALLEGATIONS OF THE BILL  ...  THAT THE JURISDICTIONAL AMOUNT OF
$3,000.00  ...  IS NOT INVOLVED  ...  IN THAT IT APPEARS THAT THE SUIT
IS BROUGHT FOR THE BENEFIT OF THE MEMBERS OF THE AMERICAN SOCIETY OF
COMPOSERS, AUTHORS AND PUBLISHERS  ...  AND IT DOES NOT AFFIRMATIVELY
APPEAR THAT THE LOSS OF ANY MEMBER OF SAID SOCIETY DUE TO THE
ENFORCEMENT OF (THE CHALLENGED ACT) WOULD AMOUNT TO THE  ...  NECESSARY
JURISDICTIONAL AMOUNT."  OTHER JURISDICTIONAL AVERMENTS OF THE MOTION
STATE THAT THE SOCIETY CANNOT SUFFER ANY LOSS FROM THE LEGISLATION
BECAUSE IT AFFIRMATIVELY APPEARS THAT THE SOCIETY DIVIDES ALL ITS
PROCEEDS FROM LICENSING BETWEEN ITS MEMBERS AND AFFILIATES AND
"THEREFORE, THE LOSS, IF ANY, SUSTAINED DUE TO THE ENFORCEMENT OF SAID
FLORIDA LAWS WOULD FALL ON THE MEMBERS OF THE SOCIETY, AND NOT ON THE
SOCIETY ITSELF."  FINALLY THE MOTION SETS OUT THE LACK OF JURISDICTION
BECAUSE IT AFFIRMATIVELY APPEARS FROM THE ALLEGATIONS OF THE BILL THAT
THE JURISDICTIONAL AMOUNT IS NOT INVOLVED "BECAUSE THE PLAINTIFFS HAVE
NOT SHOWN THE EXTENT OF LOSS OR DAMAGE THEY WOULD SUFFER BY REASON OF
THE ENFORCEMENT OF SAID STATE LAW, AS COMPARED WITH THE AMOUNT OF
PROFIT THEY WOULD MAKE BY THE NON-ENFORCEMENT OF SAID LAW."  AS THE
FORM OF THE MOTION ON THE JURISDICTION ADMITTED THE BILL'S STATEMENTS,
IT WAS SUBMITTED ON THE ALLEGATIONS WITHOUT THE PRODUCTION OF ANY
EVIDENCE. 

THIS METHOD OF TESTING THE JURISDICTION PROPERLY RAISES THE
QUESTION.  NO ISSUE IS MADE AS TO THE STANDING OF THE SOCIETY OR ITS
MEMBERS TO SUE.  THE BASIS OF THE ATTACK IS THAT THERE IS A LACK OF THE
ESSENTIAL ALLEGATIONS AS TO THE VALUE OF THE MATTER IN CONTROVERSY.  AS
THERE IS NO STATUTORY DIRECTION FOR PROCEDURE UPON AN ISSUE OF
JURISDICTION, THE MODE OF ITS DETERMINATION IS LEFT TO THE TRIAL
COURT.  FN4  BOTH COMPLAINANTS AND DEFENDANTS WERE CONTENT TO REST UPON
THE BILL AND MOTION. 

THE BILL ALLEGES THAT THE VALUE OF THE MATTER IN DISPUTE EXCEEDS THE
JURISDICTIONAL AMOUNT.  SUCH A GENERAL ALLEGATION WHEN NOT TRAVERSED IS
SUFFICIENT, UNLESS IT IS QUALIFIED BY OTHERS WHICH SO DETRACT FROM IT
THAT THE COURT MUST DISMISS SUA SPONTE OR ON DEFENDANTS' MOTION.  FN5
IN THIS INSTANCE, THE ALLEGATION IS, IN EFFECT, TRAVERSED BY THE
LANGUAGE OF THE MOTION WHICH ASSERTS THAT NO PLAINTIFF HAS SHOWN LOSS
FROM ENFORCEMENT EQUAL TO THE JURISDICTIONAL AMOUNT.  NO OTHER
ALLEGATIONS ARE DENIED.  BY THIS METHOD OF ATTACK THE FACTS SET OUT IN
THE BILL ARE LEFT UNCHALLENGED FOR THE COURT TO ACCEPT AS TRUE WITHOUT
FURTHER PROOF.  THE BURDEN OF SHOWING BY THE ADMITTED FACTS THAT THE
FEDERAL COURT HAS JURISDICTION RESTS UPON THE COMPLAINANTS.  IF THERE
WERE ANY DOUBT OF THE GOOD FAITH OF THE ALLEGATIONS, THE COURT MIGHT
HAVE CALLED FOR THEIR JUSTIFICATION BY EVIDENCE.  FN6  IN VIEW OF THE
UNCHALLENGED FACTS, FEDERAL JURISDICTION WILL BE ADEQUATELY
ESTABLISHED, IF IT APPEARS THAT FOR ANY MEMBER, WHO IS A PARTY, THE
MATTER IN CONTROVERSY IS OF THE VALUE OF THE JURISDICTIONAL AMOUNT,
FN7  OR, IF TO THE AGGREGATE OF ALL THE MEMBERS IN THIS REPRESENTATIVE
SUIT, THE MATTER IN CONTROVERSY IS OF THAT VALUE. 

THIS SOCIETY, AN UNINCORPORATED ASSOCIATION WITH A MEMBERSHIP OF MORE
THAN A THOUSAND OF THE LEADING AUTHORS, COMPOSERS AND PUBLISHERS OF
MUSIC, HAS RECEIVED BY ASSIGNMENT AND POSSESSES, FOR A FIVE-YEAR PERIOD
WHICH COVERS THE TIME HERE INVOLVED, THE "EXCLUSIVE RIGHT TO PUBLICLY
PERFORM FOR PROFIT" MUSICAL COMPOSITIONS OWNED BY ITS MEMBERS. 
LICENSES ARE ISSUED BY THE SOCIETY TO USERS IN FLORIDA "FOR THE PUBLIC
PERFORMANCE FOR PROFIT" OF THESE COMPOSITIONS.  AFTER PAYMENT OF
EXPENSES AND ROYALTIES FOR SIMILAR RIGHTS TO FOREIGN ASSOCIATES, AND
RETENTION OF CERTAIN RESERVES, THE RECEIPTS FROM LICENSES ARE DIVIDED
AMONG THE MEMBERS IN AMOUNTS AND BY CLASSIFICATIONS FIXED BY THE
ARTICLES OF ASSOCIATION AND THE BOARD OF DIRECTORS.  THE SOCIETY
UNDERTAKES TO PROTECT ITSELF AND ITS MEMBERS FROM PIRACIES OF THE
RIGHTS ASSIGNED TO IT.  THE SOCIETY HAS, IN THE ABSENCE OF THE
CHALLENGED LEGISLATION AND WITHOUT NOW GIVING CONSIDERATION TO OTHER
OBJECTIONS AS TO THE LEGALITY OF ITS ORGANIZATION, A RIGHT TO LICENSE
WHICH MAY BE INJURIOUSLY AFFECTED BY THE FLORIDA STATUTE.  WHETHER THIS
RIGHT TO LICENSE FLOWS FROM ITS LIMITED OWNERSHIP OF THE COPYRIGHTS OR
BY AUTHORITY OF ITS MEMBERS IS IMMATERIAL HERE.  WE FIND IT UNNECESSARY
TO DECIDE WHETHER THIS UNINCORPORATED ASSOCIATION HAS STANDING TO SUE
AND CONFINE OUR DECISION TO THE AMOUNT IN CONTROVERSY BETWEEN THE
MEMBERS OF THE SOCIETY AND THE DEFENDANTS.  MEMBERS, BOTH CORPORATE
COPYRIGHT OWNERS AND INDIVIDUAL COMPOSERS OF MUSIC AND LYRICS, ARE
PLAINTIFFS.  THEY REPRESENT ALL OTHER MEMBERS.  AS THE MEMBERS OWN THE
COPYRIGHTS, LESS THE LIMITED ASSIGNMENT TO THE SOCIETY OF THE RIGHT OF
PUBLIC PERFORMANCE FOR PROFIT, AND SHARE IN THE EARNINGS THROUGH
MANDATORY DISTRIBUTION UNDER THE ARTICLES OF ASSOCIATION AND NOT BY WAY
OF DIVIDENDS, THEY ARE PROPER PARTIES TO THE ACTION.  FN8  THESE
MEMBERS ARE REAL PARTIES IN INTEREST.  BECAUSE OF THE INTERPOSITION OF
THE STATUTE THEY CANNOT IN COMBINATION LICENSE PRODUCTION AND COLLECT
FEES IN FLORIDA.  UNLESS THE RELIEF SOUGHT, THE INVALIDATION OF THE
STATUTE, IS OBTAINED, THE MEMBERS CANNOT CONDUCT THEIR BUSINESS THROUGH
THE MEDIUM OF THE SOCIETY.  THEY HAVE A COMMON AND UNDIVIDED INTEREST
IN THE MATTER IN CONTROVERSY IN THIS CLASS SUIT.  FN9 

THE ESSENTIAL MATTER IN CONTROVERSY HERE IS THE RIGHT OF THE MEMBERS,
IN ASSOCIATION THROUGH THE SOCIETY, TO CONDUCT THE BUSINESS OF
LICENSING THE PUBLIC PERFORMANCE FOR PROFIT OF THEIR COPYRIGHTS.  THIS
METHOD OF COMBINING FOR CONTRACTS IS INTERDICTED BY THE FLORIDA
STATUTE.  IT IS NOT A QUESTION OF TAXATION OR REGULATION BUT
PROHIBITION.  UNDER SUCH CIRCUMSTANCES, THE ISSUE ON JURISDICTION IS
THE VALUE OF THIS RIGHT TO CONDUCT THE BUSINESS FREE OF THE PROHIBITION
OF THE STATUTE.  FN10  TO DETERMINE THE VALUE OF THIS RIGHT THE
DISTRICT COURT HAD THE ADMITTED FACTS THAT MORE THAN THREE HUNDRED
CONTRACTS EXPIRING IN 1940 WERE IN EXISTENCE BETWEEN THE SOCIETY AND
THE FLORIDA USERS; THAT IN 1936 ALONE ALMOST SIXTY THOUSAND DOLLARS WAS
COLLECTED FROM THE USERS, AND THAT SIMILAR SUMS WERE EXPECTED FOR THE
REMAINDER OF THE TERM.  WHILE THE NET PROFIT OF THE BUSINESS IN FLORIDA
IS NOT SHOWN, THE BUSINESS OF THE SOCIETY, AS A WHOLE, IS PROFITABLE. 
THE THREE PUBLISHER PARTIES RECEIVE MORE THAN $150,000 YEARLY AND
INDIVIDUALS MORE THAN $5,000 PER YEAR EACH.  THE COST OF COMPLIANCE
WITH ITS REQUIREMENTS IS EVIDENCE ALSO OF THE VALUE OF THE RIGHT OF
FREEDOM FROM THE ACT.  FN11  THE COMPLAINANTS, OTHER THAN THE SOCIETY,
ALLEGE WITHOUT TRAVERSE THAT THE COST TO EACH ONE OF PROVIDING
INDIVIDUALLY IN FLORIDA THE SERVICES NOW PROVIDED BY THE SOCIETY FOR
EACH MEMBER WOULD EXCEED $10,000.  WHETHER THIS IS ANNUALLY, FOR THE
LENGTH OF THE AGREEMENT OR FOR SOME OTHER TERM IS NOT SHOWN.  FROM
THESE FACTS, THE FINDING OF THE DISTRICT COURT THAT THE MATTER IN
CONTROVERSY - THE VALUE OF THE AGGREGATE RIGHTS OF ALL MEMBERS TO
CONDUCT THEIR BUSINESS THROUGH THE SOCIETY - EXCEEDS $3,000 IN VALUE IS
FULLY SUPPORTED.    MCNUTT V. GENERAL MOTORS ACCEPTANCE CORP. FN12
DIFFERS.  THERE THE STATE OF INDIANA HAD PASSED AN ACT REGULATING, NOT
PROHIBITING, THE BUSINESS OF THE ACCEPTANCE CORPORATION.  THE RIGHT FOR
WHICH PROTECTION WAS SOUGHT WAS THE RIGHT TO BE FREE OF REGULATION.  IT
WAS TO BE MEASURED BY THE LOSS, IF ANY, FOLLOWING ENFORCEMENT OF
REGULATION.  THIS WAS NOT ALLEGED OR PROVED.  IN KVOS, INC. V.
ASSOCIATED PRESS,  FN13  RELIEF WAS SOUGHT TO ENJOIN ALLEGED PIRATING,
BY RADIO, OF NEWS FURNISHED BY THE ASSOCIATED PRESS TO ITS MEMBERS. 
THE RIGHT FOR WHICH PROTECTION WAS SOUGHT WAS "THE RIGHT TO CONDUCT
THOSE ENTERPRISES FREE OF" INTERFERENCE.  ON THE ISSUE OF THE VALUE OF
THIS RIGHT, IT WAS DEPOSED ONLY THAT THE ASSOCIATED PRESS RECEIVED MORE
THAN $8,000 PER MONTH FOR NEWS IN THE TERRITORY SERVED BY THE
BROADCASTING STATION AND WAS IN DANGER OF LOSING THE PAYMENTS.  THE
ASSOCIATED PRESS WAS A NONPROFIT CORPORATION, OPERATED WITHOUT THE
PURPOSE OF PROFITING FROM ITS SERVICES TO MEMBERS AND EQUITABLY
DIVIDING THE EXPENSES AMONG THEM.  THE DAMAGE IN THE ASSOCIATED PRESS
CASE WAS TO ITS MEMBERS AND THIS WAS NOT SHOWN.  NEITHER WAS IT ALLEGED
OR PROVED THAT ANY MEMBER THREATENED TO WITHDRAW OR TO REDUCE ITS
PAYMENTS. 

FAILURE TO STATE A CAUSE OF ACTION.  - THE MOTION TO DISMISS ALSO
PRESENTS GENERALLY THE ISSUE WHETHER THE BILL STATES FACTS SUFFICIENT
TO CONSTITUTE A CAUSE OF ACTION.  BY THE SUBMISSION OF THE MOTION THIS
ISSUE WAS LEFT TO THE COURT ON THE FACTS ALLEGED IN THE BILL.  THE
ELABORATION OF THESE FACTS, CONTAINED IN THE AFFIDAVITS SUPPORTING AND
OBJECTING TO THE MOTION FOR TEMPORARY INJUNCTION, IS NOT AVAILABLE FOR
CONSIDERATION, AS THESE AFFIDAVITS ARE A PART OF THE RECORD ONLY FOR
THE PURPOSE OF DETERMINING THE PROPRIETY OF A TEMPORARY INJUNCTION. 
FN14  WHETHER TO GRANT OR REFUSE A MOTION TO DISMISS BEFORE ANSWER, IS
LARGELY A MATTER OF DISCRETION FOR THE COURT BELOW.  FN15  WHERE THE
BILL MAKES AN ATTACK UPON THE CONSTITUTIONALITY OF A STATE STATUTE,
SUPPORTED BY FACTUAL ALLEGATIONS SUFFICIENTLY STRONG, AS HERE, TO RAISE
"GRAVE DOUBTS OF THE CONSTITUTIONALITY OF THE ACT" IN THE MIND OF THE
TRIAL COURT, THE MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF
ACTION SHOULD BE DENIED.  THIS BILL SETS OUT THAT THE EXERCISE OF
RIGHTS GRANTED BY THE FEDERAL COPYRIGHT ACT TO CONTROL THE PERFORMANCE
OF COMPOSITIONS FOR PROFIT IS PROHIBITED BY THE STATUTE; THAT EXISTING
CONTRACTS ARE IMPAIRED; PROPERTY TAKEN WITHOUT COMPENSATION; RECOVERY
ON EXTRA STATE CONTRACTS DENIED AND THE EQUAL PROTECTION AND DUE
PROCESS CLAUSES OF THE 14TH AMENDMENT VIOLATED IN MANNERS SPECIFICALLY
PLEADED.  DRASTIC PENALTIES FOR VIOLATION OF THE ACT ARE PROVIDED. 
FN16 THE MANNER IN AND EXTENT TO WHICH THE CHALLENGED STATUTE OFFENDS
OR COMPLIES WITH THE APPLICABLE PROVISIONS OF THE CONSTITUTION WILL BE
CLEARER AFTER FINAL HEARING AND FINDINGS.  FN17  THE FINDINGS HERE WERE
ON THE MOTION FOR INTERLOCUTORY INJUNCTION AND ON THE ISSUE OF
JURISDICTION. 

OTHER ASSIGNMENTS.  - THE OTHER MATERIAL ASSIGNMENTS OF ERROR TO THE
INTERLOCUTORY ORDER SPECIFIED ON THE APPEAL ARE ADDRESSED (1) TO THE
LACK OF EQUITY IN THE BILL, (2) TO THE EXERCISE OF DISCRETION IN
ORDERING A TEMPORARY INJUNCTION, (3) TO THE LACK OF FINDINGS BEFORE THE
ORDER OF TEMPORARY INJUNCTION AND (4) TO THE FAILURE TO STRIKE FROM THE
BILL ALLEGATIONS AS TO CERTAIN SECTIONS WHICH DEAL WITH CONTRACT
RELATIONS BETWEEN THE SOCIETY AND USERS OF THE MUSICAL COMPOSITIONS
BECAUSE THESE SECTIONS ARE NOT ENFORCED BY THE STATE OFFICERS.  WE
TREAT OF THEM BRIEFLY:  (1) IT IS CLEAR THAT THERE IS EQUITABLE
JURISDICTION TO PREVENT IRREPARABLE INJURY, IF THE SECTIONS OF THE
STATE STATUTE OUTLAWING THE SOCIETY RAISE ISSUES OF CONSTITUTIONALITY. 
THE HEAVY PENALTIES FOR VIOLATION AND THE PROHIBITION OF THE ISSUE OF
LICENSES OR COLLECTION OF FEES SHOW THE NEED TO PROTECT COMPLAINANTS. 
FN18  (2)  UPON THE CONCLUSION THAT THE MOTION TO DISMISS SHOULD BE
OVERRULED, THERE WAS NO ABUSE OF DISCRETION IN GRANTING AN
INTERLOCUTORY INJUNCTION.  FN19  THE DAMAGE BEFORE FINAL JUDGMENT FROM
THE ENFORCEMENT OF THE ACT AS SHOWN BY THE AFFIDAVITS WOULD BE
IRREPARABLE.  THE ALLEGATIONS IN THE BILL OF THREATS OF ENFORCEMENT AND
THE DECLARATION IN THE AFFIDAVIT OF THE ATTORNEY GENERAL OF THE STATE,
THE OFFICER CHARGED WITH SUPERVISION OF ENFORCEMENT,  FN20  OF
READINESS AND WILLINGNESS "TO PROSECUTE ANY VIOLATIONS OF SAID ACT,"
SUFFICIENTLY ESTABLISH THE IMMEDIATE DANGER FROM ENFORCEMENT.  FN21  NO
OBJECTION APPEARS AS TO THE ADEQUACY OF THE BOND OR THE OTHER TERMS OF
THE INJUNCTION.  THESE REMAIN UNDER THE CONTROL OF THE LOWER COURT. 
ORDINARILY IT WOULD BE EXPECTED THAT WHERE A TEMPORARY INJUNCTION IS
CONSIDERED NECESSARY TO PROTECT THE RIGHTS OF COMPLAINANTS AGAINST THE
ALLEGEDLY UNCONSTITUTIONAL ACTION OF STATE OFFICERS, UNDER A STATUTE, A
FINAL ORDER WOULD FOLLOW WITH ALL CONVENIENT SPEED.  (3) THE ORDER OF
THE TRIAL COURT WAS ENTERED APRIL 5, 1938.  THE FINDINGS OF FACT AND
CONCLUSIONS OF LAW WERE NOT FILED UNTIL MAY 17, 1938, AFTER THE FIRST
ASSIGNMENT OF ERRORS HAD POINTED OUT THE OMISSION AND AFTER THE APPEAL
WAS ALLOWED.  THE ORIGINAL ASSIGNMENT OF ERROR, WHICH HAD RELIED UPON
THE FAILURE TO COMPLY WITH EQUITY RULE 70 1/2 WAS AMENDED TO SHOW
SUBSEQUENT COMPLIANCE BUT NO ASSIGNMENT OF ERROR WAS MADE ON ACCOUNT OF
THE FACT THAT THE FINDINGS WERE OUT OF TIME.  THE OBJECTION WAS TAKEN
IN THE STATEMENT OF POINTS TO BE RELIED UPON ON THE APPEAL AND IN
APPELLANTS' BRIEF IN THE SPECIFICATION OF ERRORS TO BE URGED.  BETTER
PRACTICE DICTATES THE FILING OF THE FINDING OF FACTS AND CONCLUSIONS OF
LAW BEFORE OR CONTEMPORANEOUSLY WITH THE ORDER OR DECREE.  IT WOULD BE
USELESS, HOWEVER, TO REVERSE THE ORDER GRANTING THE TEMPORARY
INJUNCTION AND REMAND THE CAUSE.  THE TEMPORARY INJUNCTION WOULD NOW BE
IN ORDER.  (4) IN ANSWER TO THE FOURTH OBJECTION IT MAY BE SAID THAT
THE ISSUE LIKE THAT OF CONSTITUTIONALITY CAN BE MORE SATISFACTORILY
DISPOSED OF UPON FINAL HEARING.  AFFIRMED. 

FN1 EQUITY RULE 38. 

FN2  ACT OF MARCH 4, 1909, SEC. 1(E), C. 320, 35 STAT. 1075, 17
U.S.C. SEC. 1(E). 

FN3  FLA. GEN. LAWS 1937, VOL. I, C. 17807. 

FN4  WETMORE V. RYMER, 169 U.S. 115, 120, 121; MCNUTT V. GENERAL
MOTORS ACCEPTANCE CORP., 298 U.S. 178, 184; KVOS, INC. V. ASSOCIATED
PRESS, 299 U.S. 269, 278. 

FN5  KVOS, INC. V. ASSOCIATED PRESS, 299 U.S. 269, 277; MCNUTT V.
GENERAL MOTORS ACCEPTANCE CORP., 298 U.S. 178, 189. 

FN6  MCNUTT V. GENERAL MOTORS ACCEPTANCE CORP., 298 U.S. 178, 189. 

FN7  GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 241-242.  CLARK V.
PAUL GRAY, INC., 306 U.S. 583. 

FN8  ARTICLE XV, SEC. 1, OF THE ARTICLES OF ASSOCIATION, READS AS
FOLLOWS:  "APPORTIONMENT OF ROYALTIES - 

"SECTION 1.  ALL ROYALTIES AND LICENSE FEES COLLECTED BY THE SOCIETY
SHALL BE FROM TIME TO TIME AS ORDERED BY THE BOARD OF DIRECTORS
DISTRIBUTED AMONG ITS MEMBERS, PROVIDED, HOWEVER: 

"(A)  THAT ALL EXPENSES OF OPERATION OF THE SOCIETY AND SUMS PAYABLE
TO FOREIGN AFFILIATED SOCIETIES SHALL BE DEDUCTED THEREFROM AND DULY
PAID; AND 

"(B) THAT THE BOARD OF DIRECTORS, BY TWO-THIRDS VOTE OF THOSE PRESENT
AT ANY REGULAR MEETING MAY ADD TO THE RESERVE FUND ANY PORTION NOT
EXCEEDING 10% OF THE TOTAL AMOUNT AVAILABLE FOR DISTRIBUTION; AND 

"(C)  THAT THE NET AMOUNT REMAINING AFTER SUCH DEDUCTION FOR
DISTRIBUTION SHALL BE APPORTIONED AS FOLLOWS:  ONE-HALF (1/2) THEREOF
TO BE DISTRIBUTED AMONG THE 'MUSIC PUBLISHER' MEMBERS, AND ONE-HALF
(1/2) AMONG THE 'COMPOSER AND AUTHOR' MEMBERS RESPECTIVELY." 

FN9  CF. TROY BANK V. WHITEHEAD & CO., 222 U.S. 39; SHIELDS V.
THOMAS, 17 HOW.  3. 

FN10  SCOTT V. DONALD, 165 U.S. 107, 114; CF. HUNT V. NEW YORK COTTON
EXCHANGE, 205 U.S. 322, 334; MCNEIL V. SOUTHERN RY. CO., 202 U.S. 543;
BITTERMAN V. LOUISVILLE & N.R. CO., 207 U.S. 205; PACKARD V. BANTON,
264 U.S. 140. 

FN11  PACKARD V. BANTON, 264 U.S. 140; PETROLEUM EXPLORATION, INC. V.
PUBLIC SERVICE COMM'N, 304 U.S. 209, 215; HEALY V. RATTA, 292 U.S. 263;
BUCK V. GALLAGHER, POST P. 95. 

FN12  298 U.S. 178. 

FN13  299 U.S. 269. 

FN14  POLK COMPANY V. GLOVER, 305 U.S. 5, 9. 

FN15  O'KEEFE V. NEW ORLEANS, 273 F. 560; WRIGHT V. BARNARD, 233 F.
329; DOHERTY V. MCDOWELL, 276 F. 728; RALSTON STEEL CAR CO. V. NATIONAL
DUMP CAR CO., 222 F. 590, 592.  COMPARE KANSAS V. COLORADO, 185 U.S.
125, 144-145; WISCONSIN V. ILLINOIS, 270 U.S. 634.  WILSHIRE OIL CO. V.
UNITED STATES, 295 U.S. 100, 102-103. 

FN16  FINE $50 TO $5,000 AND IMPRISONMENT ONE TO TEN YEARS OR
EITHER.  SEC. 8, FLA. GEN. LAWS, 1937, C. 17807. 

FN17  BORDEN'S FARM PRODUCTS CO. V. BALDWIN, 293 U.S. 194, 211-213. 
POLK CO. V. GLOVER, 305 U.S. 5. 

FN18  EX PARTE YOUNG, 209 U.S. 123, 165; TERRACE V. THOMPSON, 263
U.S. 197, 215. 

FN19  ALABAMA V. UNITED STATES, 279 U.S. 229, 231; OHIO OIL CO. V.
CONWAY, 279 U.S. 813. 

FN20  SEC. 10, FLA. GEN. LAWS, 1937, C. 17807. 

FN21  TERRACE V. THOMPSON, 263 U.S. 197, 214-16; CLINE V. FRINK DAIRY
CO., 274 U.S. 445, 451-52. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION 

MR. JUSTICE BLACK, DISSENTING. 

I BELIEVE THE DECREE ENJOINING AND SUSPENDING FLORIDA'S LAW
PROHIBITING MONOPOLISTIC PRICE FIXING SHOULD BE REVERSED BECAUSE 

(1)  NO SHOWING HAS BEEN MADE THAT CASTS ANY DOUBT UPON A STATE'S
POWER TO PROHIBIT MONOPOLISTIC PRICE FIXING, 

(2)  COMPLAINANTS (APPELLEES HERE) FAILED TO SUSTAIN THEIR BURDEN OF
SHOWING $3,000.00 IN CONTROVERSY, AS REQUIRED BY STATUTE, 

(3)  THE COURT BELOW FAILED TO REQUIRE A BOND OR OTHER CONDITIONS
ADEQUATE TO PROTECT THE PEOPLE IN FLORIDA WHO MIGHT BE INJURED BY THE
INJUNCTION. 

FIRST.  DO GENERAL ALLEGATIONS OF UNCONSTITUTIONALITY,  FN1
SIMILARLY GENERAL AFFIDAVITS AND GENERAL FINDINGS BY THE TRIAL COURT
SHOW THAT THE FLORIDA STATUTE AGAINST MONOPOLISTIC PRICE FIXING IS
"NOVEL, IF NOT UNIQUE"  FN2  STATE LEGISLATION, AND RAISE SUCH "GRAVE
CONSTITUTIONAL QUESTIONS" THAT A FEDERAL COURT SHOULD SUSPEND THE
STATUTE TO PERMIT COMPLAINANTS TO CONTINUE EXACTING MONOPOLY TRIBUTE
FROM THE PUBLIC UNTIL THE COURT HEARS EVIDENCE? 

THE ENJOINED ATTORNEY GENERAL AND PROSECUTING ATTORNEYS OF FLORIDA DO
NOT HAVE, AND EXPRESSLY DISCLAIM ANY DUTY TO ENFORCE THE STATUTE
AGAINST APPELLEES UNLESS THEY COMBINE TO FIX MONOPOLISTIC PRICES. 
THEREFORE, THIS INJUNCTION CANNOT REST UPON THE ALLEGED
UNCONSTITUTIONALITY OF ANY PROVISIONS OF THE STATUTE OTHER THAN THOSE
PROHIBITING MONOPOLISTIC PRICE FIXING.  AND ALLEGATIONS OF THE BILL
ATTACKING OTHER PROVISIONS OF THE STATUTE RAISE ONLY MOOT QUESTIONS. 
IF THIS RECORD CAN BE SAID TO RAISE ANY "GRAVE," "NOVEL," OR "UNIQUE"
QUESTION AT ALL, THAT QUESTION IS WHETHER A STATE HAS POWER TO PROHIBIT
PRICE FIXING BY MONOPOLIES IN RESTRAINT OF TRADE. 

IF THE ISSUE IS NOT NARROWED TO THIS SINGLE POINT, APPROVAL IS GIVEN
TO THE ENJOINING OF STATE OFFICIALS FROM ACTION WHICH THEY HAVE NO DUTY
TO PERFORM AND HAVE SOLEMNLY DISCLAIMED BOTH HERE AND IN THE DISTRICT
COURT.  FN3  IN THE ABSENCE OF AN INTERPRETATION BY THE FLORIDA SUPREME
COURT, TO WHAT MORE AUTHORITATIVE SOURCE OR EVIDENCE MAY A FEDERAL
COURT TURN FOR THE MEANING OF THE STATUTE, THAN TO THE DECISION OF THE
HIGHEST STATE OFFICIAL CHARGED WITH ITS ENFORCEMENT?  HE HAS DETERMINED
THAT, SO FAR AS HE AND THE PROSECUTING ATTORNEYS UNDER HIM ARE
CONCERNED, APPELLEES MAY LICENSE THEIR COMPOSITIONS AS THEY PLEASE, MAY
COMBINE TO DETECT AND PUNISH INFRINGERS AND MAY OPERATE IN FLORIDA AT
WILL, PROVIDED ONLY THAT THEY ABANDON MONOPOLISTIC PRICE FIXING.  EVEN
AS TO THE STATUTORY PROHIBITION AGAINST PRICE FIXING, ALL THAT IS
BEFORE US, A PRACTICE MORE DESIRABLE AND MORE IN KEEPING WITH OUR DUAL
FORM OF GOVERNMENT, PREVIOUS DECISIONS,  FN4  AND THE TREND OF
CONGRESSIONAL LEGISLATION,  FN5  WOULD BE TO REFRAIN FROM FEDERAL
JUDICIAL INTERFERENCE UNTIL THE STATE COURTS ARE PRESENTED WITH AN
OPPORTUNITY TO DEFINE THE STATUTORY DUTIES OF APPELLANTS.  "AND ...
THE PRESUMPTION IS IN ALL CASES THAT THE STATE COURTS WILL DO WHAT THE
CONSTITUTION AND LAWS OF THE UNITED STATES REQUIRE."  FN6  JUDICIALLY
RESTRAINING THESE FLORIDA OFFICIALS FROM ACTION WHICH THEY DECLARE THEY
CANNOT AND WILL NOT TAKE, DENIES TO FLORIDA THE TRADITIONAL RESPECT
THAT HAS BEEN ACCORDED STATE OFFICIALS BY THIS COURT.  FN7 

EVEN ACCORDING TO THE COMPARATIVELY NEW JUDICIAL FORMULA HERE
APPLIED, THE ONLY ISSUE IS WHETHER "NOVEL  ...  UNIQUE" OR "GRAVE
CONSTITUTIONAL QUESTIONS" ARE RAISED BY THE CHARGE THAT THESE STATE
OFFICIALS WILL PERFORM THEIR SOLE DUTY UNDER THE FLORIDA STATUTE OF
PROSECUTING APPELLEES FOR VIOLATIONS OF THE PROHIBITIONS AGAINST
MONOPOLISTIC PRICE FIXING.  PARAPHRASING THIS FORMULA, THE QUESTION
HERE ACTUALLY BECOMES:  WHEN COMPLAINANTS CHARGE IN A FEDERAL COURT OF
EQUITY THAT A STATE HAS PASSED, AND ITS OFFICERS ARE ABOUT TO ENFORCE,
A LAW AGAINST MONOPOLISTIC PRICE FIXING, IS THERE SO MUCH DOUBT ABOUT
THE POWER OF THE STATE TO PROHIBIT MONOPOLISTIC PRICE FIXING THAT
OPERATION OF THE LAW MUST BE ENJOINED AND EFFECT DENIED TO IT UNTIL
EVIDENCE IS HEARD BY THE COURT? 

HERE, BOTH THE VERY BILL UPON WHICH THE INJUNCTION NOW APPROVED WAS
GRANTED AND AFFIDAVITS OF RECORD ESTABLISH BEYOND DISPUTE APPELLEES'
FLAGRANT VIOLATION OF THE FLORIDA LAW BY COMBINING TO FIX PRICES.  THIS
COMBINATION APPARENTLY INCLUDES PRACTICALLY ALL (PROBABLY 95%) AMERICAN
AND FOREIGN COPYRIGHT OWNERS CONTROLLING RENDITION OF COPYRIGHTED MUSIC
FOR PROFIT IN THE UNITED STATES.  NOT ONLY DOES THIS COMBINATION FIX
PRICES THROUGH A SELFPERPETUATING BOARD OF TWENTY-FOUR DIRECTORS, BUT
ITS POWER OVER THE BUSINESS OF MUSICAL RENDITION IS SO GREAT THAT IT
CAN REFUSE TO SELL RIGHTS TO SINGLE COMPOSITIONS, AND CAN, AND DOES,
REQUIRE PURCHASERS TO TAKE, AT A MONOPOLISTICALLY FIXED ANNUAL FEE, THE
ENTIRE REPERTORY OF ALL NUMBERS CONTROLLED BY THE COMBINATION.  AND
THESE FEES ARE NOT THE SAME FOR LIKE PURCHASERS EVEN IN THE SAME
LOCALITY.  EVIDENCE SHOWS THAT COMPETING RADIO STATIONS IN THE SAME
CITY, OPERATING ON THE SAME POWER AND SERVING THE SAME AUDIENCE, ARE
CHARGED WIDELY VARIANT FEES FOR IDENTICAL PERFORMANCE RIGHTS, NOT
BECAUSE OF COMPETITION, BUT BY THE EXERCISE OF MONOPOLY POWER.  SINCE
IT APPEARS THAT MUSIC IS AN ESSENTIAL PART OF PUBLIC ENTERTAINMENT FOR
PROFIT, RADIO STATIONS OR OTHER BUSINESSES ARBITRARILY COMPELLED TO PAY
DISCRIMINATORY FEES ARE FACED WITH PRICE FIXING PRACTICES THAT COULD
DESTROY THEM, BECAUSE THE SOCIETY HAS A MONOPOLY OF PRACTICALLY ALL -
IF NOT COMPLETELY ALL - AVAILABLE MUSIC.  WHEN CONSIDERATION IS ALSO
GIVEN TO THE FACT THAT AN ARBITRARILY FIXED LOWER RATE IS GRANTED TO A
FAVORED STATION ITSELF CONTROLLED BY ANOTHER INSTRUMENT OF PUBLIC
COMMUNICATION - A NEWSPAPER - THE ULTIMATE POSSIBILITIES FOR CONTROL OF
THE CHANNELS OF PUBLIC COMMUNICATION AND INFORMATION ARE APPARENT. 

WE HAVE HERE A PRICE FIXING COMBINATION THAT ACTUALLY WIELDS THE
POWER OF LIFE AND DEATH OVER EVERY BUSINESS IN FLORIDA, AND ELSEWHERE,
DEPENDENT UPON COPYRIGHTED MUSICAL COMPOSITIONS FOR EXISTENCE.  SUCH A
MONOPOLISTIC COMBINATION'S POWER TO FIX PRICES IS THE POWER TO
DESTROY.  SHOULD A COURT OF EQUITY GRANT THIS COMBINATION THE PRIVILEGE
OF VIOLATING A STATE ANTI-MONOPOLY LAW?  FN8  DOES A STATE LAW
PROHIBITING SUCH A COMBINATION PRESENT "GRAVE CONSTITUTIONAL
QUESTIONS"? 

IT IS MY POSITION THAT A STATE LAW PROHIBITING MONOPOLISTIC PRICE
FIXING IN RESTRAINT OF TRADE IS NOT "NOVEL" AND "UNIQUE" AND RAISES NO
"GRAVE CONSTITUTIONAL QUESTIONS."  THE CONSTITUTIONAL RIGHT OF THE
STATES TO PASS LAWS AGAINST MONOPOLIES SHOULD NOW BE BEYOND POSSIBILITY
OF CONTROVERSY.  "THAT STATE LEGISLATURES HAVE THE RIGHT  ...  TO
PREVENT UNLAWFUL COMBINATIONS TO PREVENT COMPETITION AND IN RESTRAINT
OF TRADE, AND TO PROHIBIT AND PUNISH MONOPOLIES, IS NOT OPEN TO
QUESTION,"  FN9  AND FEW HAVE CHALLENGED THE POWER OF STATE
LEGISLATURES TO ORDAIN THAT "COMPETITION NOT COMBINATION, SHOULD BE THE
LAW OF TRADE."  FN10  SURELY, THERE IS PRESENTLY NO BASIS TO DOUBT THIS
POWER AND TO ASSERT THAT ITS EXERCISE RAISES "GRAVE CONSTITUTIONAL
QUESTIONS."  AS RECENTLY AS 1937, THIS COURT HELD THAT PUERTO RICO,
WITH LEGISLATIVE POWERS NOT EQUAL TO, BUT "NEARLY AS EXTENSIVE AS THOSE
EXERCISED BY ANY STATE LEGISLATURE," COULD PROHIBIT MONOPOLISTIC PRICE
FIXING AS ONE OF THE "RIGHTFUL SUBJECTS OF LEGISLATION" UPON WHICH
LEGISLATURES ACT.  FN11 

IF THE STATES HAVE SOMEHOW LOST THEIR HISTORIC POWER TO PROHIBIT
MONOPOLISTIC PRICE FIXING COMBINATIONS BEFORE PRESENTATION OF EVIDENCE
TO A FEDERAL COURT, AT WHAT POINT IN OUR HISTORY AND IN WHAT MANNER DID
THEY LOSE IT?  THE PEOPLE HAVE NOT EXERCISED THEIR EXCLUSIVE AUTHORITY,
BY CONSTITUTIONAL AMENDMENT, TO STRIP THE STATES OF THEIR POWER OVER
PRICE FIXING COMBINATIONS AND THUS RAISE MONOPOLY ABOVE THE TRADITIONAL
POWER OF LEGISLATIVE BODIES. 

IT WAS EXPRESSLY CONCEDED AT THE BAR THAT FLORIDA HAD THE
CONSTITUTIONAL POWER TO PROHIBIT PRICE FIXING COMBINATIONS UNLESS THE
COPYRIGHT LAWS LIMITED THIS POWER.  AND, SINCE ARGUMENT OF THE PRESENT
CASE, A DECISION RENDERED BY US FEBRUARY 13, THIS YEAR, MADE CLEAR THE
PRINCIPLE THAT THE COPYRIGHT LAWS GRANT NO IMMUNITY TO COPYRIGHT OWNERS
FROM STATUTES PROHIBITING MONOPOLISTIC PRACTICES AND AGREEMENTS.  WE
THERE DECLARED THAT "AN AGREEMENT ILLEGAL (BY STATUTE) BECAUSE IT
SUPPRESSES COMPETITION IS NOT ANY LESS SO BECAUSE THE COMPETITIVE
ARTICLE IS COPYRIGHTED."  FN12 

"DUE PROCESS" HAS BEEN JUDICIALLY ENDOWED WITH GREAT ELASTICITY IN
RELATION TO PROPERTY RIGHTS, BUT IT IS INCONCEIVABLE THAT IT WOULD
AFFORD REFUGE FOR MONOPOLIES DEEMED UNDESIRABLE BY THE PEOPLE'S
REPRESENTATIVES.  WHEN A LEGISLATURE AS A MATTER OF PUBLIC POLICY
DETERMINES TO PROHIBIT MONOPOLISTIC COMBINATIONS, WE CANNOT, UNDER ANY
DOCTRINE OF "DUE PROCESS," RIGHTFULLY "REVIEW THEIR ECONOMICS OR THEIR
FACTS."  FN13  AND, ALTHOUGH "DUE PROCESS" IS INVOKED, CAN EVIDENCE
EITHER ADD TO OR TAKE FROM THE LEGISLATIVE POWER TO PERMIT, REGULATE OR
PROHIBIT MONOPOLIES IN THE PUBLIC INTEREST? 

SEVERAL OF THE GENERAL ALLEGATIONS IN THE BILL ARE RELIED UPON TO
JUSTIFY SUSPENSION OF THE FLORIDA STATUTE UNTIL EVIDENCE IS HEARD BY A
COURT.  IT IS SAID THE COURT SHOULD HEAR EVIDENCE BECAUSE THE "BILL
SETS OUT THAT THE EXERCISE OF RIGHTS GRANTED BY THE FEDERAL COPYRIGHT
ACT TO CONTROL THE PERFORMANCE OF COMPOSITIONS FOR PROFIT IS PROHIBITED
BY THE STATUTE  ...  "  BUT WHAT EVIDENCE CAN THE COURT HEAR THAT WILL
ASSIST IT IN COMPARING THE STATUTE WITH THE COPYRIGHT LAWS?  THE
FLORIDA STATUTE DOES NOT EVEN PURPORT TO PROHIBIT THE "PERFORMANCE OF
COMPOSITIONS FOR PROFIT," AND THE ENJOINED OFFICIALS HAVE NEITHER
THREATENED, NOR DO THEY INTEND, TO PROHIBIT SUCH PERFORMANCE.  IT IS
SAID THE BILL ALLEGES "THAT EXISTING CONTRACTS ARE IMPAIRED" BY THE
STATUTE.  BUT NO CONTRACTS CAN BE AFFECTED UNLESS INVOLVING PROHIBITED
MONOPOLISTIC PRICE FIXING.  THAT THE FLORIDA LAW PROHIBITS THE
CONTINUATION AND EXECUTION OF MONOPOLY PRACTICES IN PURSUANCE OF PRICE
FIXING AGREEMENTS MADE BEFORE THE LAW WAS PASSED, CAN BE NO BASIS FOR
CONSTITUTIONAL OBJECTION.  FN14 

IT IS SAID THE BILL ALLEGES "PROPERTY TAKEN WITHOUT COMPENSATION." 
IF THE STATUTE, OF ITSELF, TAKES PROPERTY, (AND NO CHARGE OF
UNCONSTITUTIONAL APPLICATION OF THE STATUTE IS MADE) IS EVIDENCE
REQUIRED TO SHOW THE MANNER OF THE TAKING?  IT IS SAID THE BILL ALLEGES
THAT THE STATUTE VIOLATES "EQUAL PROTECTION."  BUT THE SOLE THING
THREATENED IS PROSECUTION OF AN ADMITTED PRICE FIXING COMBINATION -
COMPRISED OF PRACTICALLY ALL THE MUSICAL COPYRIGHT OWNERS AND
PUBLISHERS IN THE NATION.  "  ...  IF AN EVIL (OF MONOPOLY) IS
SPECIALLY EXPERIENCED IN A PARTICULAR BRANCH OF BUSINESS, THE
CONSTITUTION EMBODIES NO PROHIBITION OF LAWS CONFINED TO THE EVIL, OR
DOCTRINAIRE REQUIREMENT THAT THEY SHOULD BE COUCHED IN ALL EMBRACING
TERMS.  IT DOES NOT FORBID THE CAUTIOUS ADVANCE, STEP BY STEP, AND THE
DISTRUST OF GENERALITIES WHICH SOMETIMES HAVE BEEN THE WEAKNESS, BUT
OFTEN THE STRENGTH, OF ENGLISH LEGISLATION."  FN15  IT IS SAID A
DRASTIC PENALTY IS PROVIDED FOR PRACTICING PRICE FIXING.  WHAT EVIDENCE
WILL SERVE TO ENLIGHTEN THE COURT ON THE STATUTORY PENALTY?  THAT
PENALTY IS SET OUT CLEARLY IN THE STATUTE.  IF IT INVALIDATES THE
STATUTE, THAT DETERMINATION SHOULD BE MADE NOW. 

THE PRESENT CASE ILLUSTRATES HOW THE RECENTLY FASHIONED JUDICIAL
FORMULA UNDER WHICH STATE LAWS MUST BE ENJOINED IF "GRAVE
CONSTITUTIONAL QUESTIONS" ARE PRESENTED IN A COMPLAINT, ACTUALLY
RESULTS IN AN AUTOMATIC JUDICIAL SUSPENSION OF STATE STATUTES UPON ANY
GENERAL COMPLAINT TO A FEDERAL COURT.  THE APPARENTLY INEVITABLE
OPERATION OF THIS FORMULA RUNS COUNTER TO THE TENTH AMENDMENT INTENDED
TO PRESERVE THE CONTROL OF THE STATES OVER THEIR OWN LOCAL LEGISLATION,
AND OPENS THE DOOR TO FURTHER EVASIONS OF THE ELEVENTH AMENDMENT
PROTECTING THE STATES FROM SUITS IN FEDERAL COURTS.  FN16  A LOWER
FEDERAL COURT'S REFUSAL IN ITS "DISCRETION" TO SUSPEND A STATE STATUTE
WAS RECENTLY REVERSED BECAUSE "GRAVE CONSTITUTIONAL QUESTIONS"  -
REQUIRING EVIDENCE - WERE DEEMED RAISED BY CHARGES THAT THE STATUTE BY
REQUIRING CITRUS FRUIT CANS TO BE TRUTHFULLY LABELED VIOLATED THE
CONSTITUTION.  FN17  AND HERE, WHERE THE DISTRICT COURT ENJOINED A
STATE LAW IN ITS "DISCRETION," THE INJUNCTION IS SUSTAINED BY A HOLDING
THAT EVIDENCE SHOULD BE HEARD BECAUSE "GRAVE CONSTITUTIONAL QUESTIONS"
ARE INVOLVED.  HOWEVER THE LOWER COURT'S "DISCRETION" MAY BE EXERCISED,
THE FORMULA APPARENTLY ACHIEVES BUT ONE RESULT - STATE STATUTES ARE
SUSPENDED. 

CAREFUL SCRUTINY OF APPELLEES' BILL FOR INJUNCTION REVEALS NO
ALLEGATIONS INDICATING THAT FLORIDA'S POWER TO PROHIBIT MONOPOLISTIC
PRICE FIXING WOULD, EVEN UNDER THE FORMULA APPLIED, BE ALTERED BY PROOF
OF ANY "PARTICULAR ECONOMIC FACTS  ...  WHICH ARE  ...  PROPERLY THE
SUBJECT OF EVIDENCE AND OF FINDINGS."  FN18  TRUE, THE BILL ALLEGES
THAT THE STATUTE OF FLORIDA AND SIMILAR LEGISLATION ENACTED BY OTHER
STATES WERE "SPONSORED BY AN ORGANIZED GROUP  ...  FOR THEIR OWN
SELFISH AGGRANDIZEMENT  ...  WITHOUT AN ADEQUATE HEARING BEING AFFORDED
TO COMPLAINANTS AND OTHERS SIMILARLY SITUATED," AND THAT "IN TRUTH AND
IN FACT, (THE STATUTE) WAS ENACTED NOT IN THE PUBLIC INTEREST  ...  "
APPELLEES ALSO ALLEGE THAT "UNLESS THE ENFORCEMENT OF THIS STATE
STATUTE IS RESTRAINED  ...  OTHER STATES, IN ADDITION TO FLORIDA,
MONTANA, WASHINGTON, NEBRASKA AND TENNESSEE, MAY ENACT SIMILAR STATUTES
...  ALL OF WHICH WOULD WORK UNDUE HARDSHIP ON COMPLAINANTS AND WOULD
VIOLATE THE SPIRIT OF THE CONSTITUTION  ...  "  THESE ARE SOME OF THE
STRONGEST - IF NOT THE STRONGEST - OF THE BILL'S ALLEGATIONS DEEMED TO
RAISE "GRAVE CONSTITUTIONAL QUESTIONS."  IS THE TEMPORARY INJUNCTION
APPROVED SO THAT THE FEDERAL COURT IN FLORIDA MAY HEAR EVIDENCE ON WHAT
CONSTITUTES THE PUBLIC INTEREST OF FLORIDA?  SHALL THE COURT HEAR
EVIDENCE TO DETERMINE WHETHER OR NOT "UNLESS THE ENFORCEMENT OF THIS
STATUTE IS RESTRAINED" OTHER STATES, "IN ADDITION TO FLORIDA," MAY
SIMILARLY PROHIBIT APPELLEES' MONOPOLY? 

IT IS DIFFICULT TO PERCEIVE HOW IN THE FUTURE - UNDER THIS FORMULA -
ANY STATE LAW, DIRECTLY OR INDIRECTLY AFFECTING PROPERTY, CAN BECOME
EFFECTIVE UNTIL INJUNCTION PROCEEDINGS HAVE DRAGGED THEIR WEARY WAY
THROUGH FEDERAL COURTS.  ALL STATE STATUTES MIGHT HEREAFTER WELL
SUBSTITUTE FOR THE EXPRESSION "TO TAKE EFFECT WITHIN" A CERTAIN PERIOD
OF TIME, THE WORDS "TO TAKE EFFECT AFTER THE FEDERAL COURTS HAVE HEARD
EVIDENCE TO DETERMINE" THEIR REASONABLENESS (WISDOM).  AND THE FORMULA
LIKEWISE FITS CONGRESSIONAL ENACTMENTS.  HAD THE PRONOUNCEMENT OF THIS
FORMULA NOT BEEN THE CULMINATION OF GRADUAL JUDICIAL ADVANCES, IT WOULD
HAVE BEEN EVERYWHERE RECOGNIZED AS A REVOLUTIONARY DEPARTURE FROM OUR
CONSTITUTIONAL FORM OF GOVERNMENT, UNDER WHICH THE WISDOM OF
LEGISLATION, WITHIN THE FIELD OF LEGISLATIVE ACTION, WAS LEFT TO THE
JUDGMENT OF ELECTED REPRESENTATIVES OF THE PEOPLE. 

FLORIDA CAN FIND LITTLE COMFORT IN THE ADMONITION THAT "ORDINARILY IT
WOULD BE EXPECTED THAT WHERE A TEMPORARY INJUNCTION IS CONSIDERED
NECESSARY  ...  A FINAL ORDER WOULD FOLLOW WITH ALL CONVENIENT SPEED." 
THIS LAW HAS NOW ALREADY BEEN SUSPENDED FOR A YEAR, AND EXPERIENCE
DEMONSTRATES THAT INJUNCTIVE SUSPENSION OF STATE LAWS AND STATE ACTION
CAN HANG IN THE COURTS FOR MANY YEARS BEFORE RECEIVING FINAL
DISPOSITION.  FN19 

SECOND.  JURISDICTIONAL AMOUNT. 

THESE ELEVEN APPELLEES ALLEGED IN THEIR BILL FOR INJUNCTION THAT THEY
SUED ON BEHALF OF THEMSELVES AND THE MORE THAN 1,000 OTHER (AMERICAN)
MEMBERS OF THE SOCIETY.  NO DETERMINATION IS MADE HERE "THAT FOR ANY
MEMBER, WHO IS A PARTY, THE MATTER IN CONTROVERSY IS OF THE VALUE OF
THE JURISDICTIONAL AMOUNT" - $3,000.  HOWEVER, WHILE APPELLEES ARE NOT
AIDED IN ESTABLISHING THE JURISDICTIONAL AMOUNT BY THE "ALLEGATION THAT
(THEY)  ...  SUED ON BEHALF OF OTHERS SIMILARLY SITUATED,"  FN20  THE
COURT NEVERTHELESS HOLDS THAT THE JURISDICTIONAL AMOUNT IS IN
CONTROVERSY IN "THE VALUE OF THE AGGREGATE RIGHTS OF ALL MEMBERS"
(INCLUDING THE MORE THAN 1,000 WHO HAVE NOT APPEARED IN PERSON) TO
COMBINE AND FIX PRICES IN FLORIDA. 

"ASSUMING THAT SUCH A CASE AS THIS MAY BE CALLED A CLASS ACTION, AND
...  COULD BE MAINTAINED AS SUCH  ... YET THAT IT MAY BE PROPERLY A
CLASS ACTION DOES NOT AFFECT THE RULE AGAINST AGGREGATION (OF CLAIMS
FOR MAKING UP THE JURISDICTIONAL AMOUNT), BECAUSE (SUCH AGGREGATION)
... IS NECESSARILY ONLY APPLICABLE TO THOSE CLASS ACTIONS IN WHICH
SEVERAL CLAIMANTS TO A FUND ARE JOINED AS PLAINTIFFS ASSERTING COMMON
AND UNDIVIDED RIGHTS THEREIN."  FN21  APPELLEES ASSERT NO COMMON AND
UNDIVIDED RIGHTS IN ANY FUND  FN22  OR PROPERTY; FN23  "THE AMOUNT
PAYABLE TO EACH (BY THE SOCIETY) DEPENDS UPON HIS CONTRACT ALONE." 
FN24  NEITHER DOES APPELLEES' BILL SEEK, AS WOULD THE TRADITIONAL CLASS
OR REPRESENTATIVE BILL IN EQUITY, TO PROTECT GROUP RIGHTS ALL CLAIMED
UNDER AND TRACEABLE TO A SINGLE DECREE, FN25  OR RIGHTS "WHICH  ...
(NO ONE PLAINTIFF) CAN ENFORCE IN THE ABSENCE OF THE" OTHERS BECAUSE
DERIVED FROM A SINGLE SECURITY INSTRUMENT.  FN26  IN THIS PROCEEDING,
ALL THAT MEMBERS OF THE SOCIETY HAVE IN COMMON IS THEIR ALLEGED RIGHT
TO VIOLATE WITH IMPUNITY THE FLORIDA STATUTE AGAINST PRICE FIXING. 
UNLESS OPPOSITION TO AND VIOLATION OF THE STATUTE CAN BE THEIR BOND OF
UNITY, APPELLEES HAVE "SEPARATE AND DISTINCT DEMANDS  ...  (UNITED) FOR
CONVENIENCE AND ECONOMY IN A SINGLE SUIT, (AND) IT IS ESSENTIAL THAT
THE DEMAND OF EACH BE OF THE REQUISITE JURISDICTIONAL AMOUNT."  FN27 

PERMISSIBLE JOINDER OF MANY PLAINTIFFS AS A MATTER OF CONVENIENCE AND
ECONOMY IS NOT A MEANS OF ENLARGING THE JURISDICTION OF THE DISTRICT
COURT.  RULE 38, UNDER WHICH THIS CLASS OR REPRESENTATIVE SUIT WAS
BROUGHT, DID NOT, IN FACT COULD NOT, EXTEND THAT JURISDICTION WHICH
DEPENDS SOLELY UPON ACTS OF CONGRESS.  FN28 

A COMMON DESIRE TO DISREGARD A STATE LAW CANNOT SERVE AS A COMMON AND
UNDIVIDED INTEREST FOR PURPOSES OF FEDERAL JURISDICTION; FN29
OTHERWISE, ALL WHO OPPOSE SUCH A LAW CAN AGGREGATE THE VALUES OF THEIR
ALLEGED INDIVIDUAL RIGHTS SO AS TO DISREGARD THE LAW, IN ORDER THAT
THEY MAY ESCAPE THE COURTS OF A STATE AND BRING ITS LAW BEFORE A
FEDERAL COURT.  AND THE FACT THAT A STATE LAW INFLICTS PECUNIARY LOSS
UPON MEMBERS OF A NON-PROFIT ASSOCIATION BECAUSE OF THEIR MEMBERSHIP
DOES NOT PERMIT AGGREGATION OF THE MEMBERS' PECUNIARY INTERESTS AS A
BASIS FOR ATTACK UPON THE LAW IN A FEDERAL COURT BY SOME MEMBERS "ON
BEHALF AND WITH THE AUTHORITY OF ALL."  FN30  HERE, THE INDIVIDUAL
MEMBERS HAVE MADE NO SHOWING OF WHAT THEY AS INDIVIDUALS HAVE AT STAKE
OR OF WHAT ALL THE MEMBERS AS A CLASS STAND TO LOSE BY VIRTUE OF THE
FLORIDA LAW. 

THE ENJOINED STATE OFFICIALS HAVE ONLY THE DUTY TO PROSECUTE
APPELLEES IF THEY CONTINUE TO FIX PRICES (I.E., TO ISSUE LICENSES)
THROUGH MONOPOLISTIC COMBINATIONS, AND THESE OFFICIALS HAVE EXPRESSLY
DISAVOWED ANY INTENTION TO DO MORE.  FN31  APPELLEES ARE LEFT FREE TO
FORM SUCH COMBINATIONS AS THEY PLEASE IN FLORIDA FOR THE PURPOSE OF
PROTECTING AGAINST COPYRIGHT INFRINGEMENTS.  THEY ARE HERE DEPRIVED BY
THE FLORIDA STATUTE ONLY OF THE RIGHT TO COMBINE TO FIX PRICES, AND THE
VALUE OF THAT RIGHT MUST DETERMINE THE AMOUNT IN CONTROVERSY.  FN32
THAT RIGHT WAS THE OBJECT WHICH APPELLEES' BILL FOR INJUNCTION SOUGHT
TO PROTECT FROM ALLEGEDLY UNCONSTITUTIONAL INTERFERENCE.  FN33  YET,
THERE IS NO EVIDENCE AT ALL IN THE RECORD FROM WHICH EVEN AN INFERENCE
CAN BE DRAWN AS TO THE AMOUNT, IF ANY, INDIVIDUAL APPELLEES OR OTHER
MEMBERS MIGHT LOSE IN FLORIDA BY SELLING OR LICENSING THEIR COPYRIGHTED
ARTICLES INDIVIDUALLY (WHICH THE LAW PERMITS) INSTEAD OF FIXING PRICES
BY MONOPOLISTIC COMBINATION (WHICH THE LAW PROHIBITS).  NO SHOWING WAS
MADE THAT APPELLEES EVER HAVE MADE OR EVER WILL MAKE ANY PROFIT FROM
THE OPERATIONS OF THE SOCIETY IN FLORIDA.  AS STATED BY THE MAJORITY
OPINION, THE RECORD DISCLOSES THAT THE BUSINESS OF THE SOCIETY IN THE
ENTIRE UNITED STATES AND SIXTEEN FOREIGN COUNTRIES IS A PROFITABLE
ONE.  BUT WE CANNOT ASSUME FROM THIS THAT ITS FLORIDA OPERATIONS ARE AS
A UNIT PROFITABLE.  IN FACT, THE RECORD SHOWS ONLY THAT THE ENTIRE
SOCIETY HAD SIXTY THOUSAND DOLLARS WORTH OF CONTRACTS IN FLORIDA IN
1936.  WE ARE NOT TOLD WHAT RATABLE SHARE OF THIS SIXTY THOUSAND
DOLLARS WOULD COME TO ANY INDIVIDUAL IN THE DIVISION OF THE ENTIRE
AMOUNT AMONG THE FORTY-FIVE THOUSAND ODD MEMBERS AFFILIATED WITH THE
SOCIETY (IN AMERICA AND ABROAD).  EACH INDIVIDUAL MEMBER'S GROSS INCOME
FROM FLORIDA MIGHT BE LESS THAN $1.50 PER YEAR. 

THE LOSS OF A RIGHT TO AN ANNUAL GROSS INCOME OF $1.50 CANNOT AMOUNT
TO THE LOSS OF A RIGHT VALUED AT TEN THOUSAND DOLLARS - AS APPELLEES
ALLEGE - ON THE THEORY THAT IT WOULD COST TEN THOUSAND DOLLARS TO
COLLECT THE $1.50 INCOME INDIVIDUALLY.  AND IT IS, OF COURSE, POSSIBLE
THAT IF THE SOCIETY IN FACT HAS NO NET INCOME FROM FLORIDA BUT OPERATES
THERE AT A LOSS, EACH MEMBER'S RATABLE SHARE OF INCOME FROM THE SOCIETY
WILL ACTUALLY BE INCREASED WHEN THE UNPROFITABLE FLORIDA OPERATIONS
CEASE BECAUSE OF THE STATUTE.  MEASURING THE AMOUNT IN CONTROVERSY ON
THE ABOVE THEORY, JURISDICTION MIGHT BE OBTAINED BY A FEDERAL COURT TO
ENFORCE RIGHTS OF A VALUE FAR LESS THAN THE JURISDICTIONAL $3,000
REQUIRED BY CONGRESS.  FOR ILLUSTRATION, A STATUTE MIGHT PROHIBIT
PARKING OF AUTOMOBILES ON CERTAIN CITY STREETS; AN AUTOMOBILE OWNER
ASSAILING THE LAW MIGHT BE ADMITTED TO THE JURISDICTION OF THE FEDERAL
COURT BY ALLEGING THAT IT WOULD COST HIM MORE THAN THREE THOUSAND
DOLLARS TO PURCHASE A PARKING LOT IN WHICH TO PARK OFF THE STREETS OF
THE PROHIBITED AREA.  HE WOULD THUS "COMPLY" WITH THE STATUTE AND
ABANDON THE STREETS IN OBEDIENCE TO IT.  FN34  I DO NOT BELIEVE THAT
JURISDICTION OF A FEDERAL COURT CAN BE RESTED ON MEASUREMENTS OF THE
IMAGINED COST OF WHAT A COMPLAINANT CONCEIVABLY COULD BUT CERTAINLY
WOULD NEVER DO AS AN ALTERNATIVE TO ACTION FORBIDDEN BY STATUTE. 

THE STATUTORY MONETARY STANDARD IS PRECISE AND THE AMOUNT IN
CONTROVERSY THEREFORE CANNOT BE CONJECTURAL.  "IT IS IMPOSSIBLE TO
FORESEE INTO WHAT MAZES OF SPECULATION AND CONJECTURE WE MAY NOT BE LED
BY A DEPARTURE FROM THE SIMPLICITY OF THE STATUTORY PROVISION. 

"ACCORDINGLY THIS COURT HAS UNIFORMLY BEEN STRICT TO ADHERE TO AND
ENFORCE IT."  FN35 

WITHOUT PROOF OF THE AMOUNT EACH APPELLEE OR MEMBER HAS IN ISSUE, HOW
CAN THE "AGGREGATE AMOUNT" BE FIXED AT ANY FIGURE? 

RIGID ENFORCEMENT OF THE JURISDICTIONAL REQUIREMENT WILL LIMIT THE
INTERFERENCE OF FEDERAL COURTS IN STATE LEGISLATION AND WILL ACCORD
WITH THE POLICY OF CONGRESS IN NARROWING THE JURISDICTION OF FEDERAL
COURTS BY SUCCESSIVE INCREASES IN THE JURISDICTIONAL AMOUNT."  FN36
THE POLICY OF THE STATUTE CALLS FOR ITS STRICT CONSTRUCTION."  FN37
SINCE NO INDIVIDUAL COMPLAINANT HAS ESTABLISHED THAT HE HAS THE
STATUTORY JURISDICTIONAL AMOUNT IN CONTROVERSY, TO REST JURISDICTION OF
A FEDERAL COURT ON NO MORE THAN THE UNIFIED DESIRE OF MANY COMPLAINANTS
TO VIOLATE A STATE STATUTE PROHIBITING MONOPOLISTIC PRICE FIXING, DOES
CONSTITUTE A "NOVEL, IF NOT UNIQUE," AND "GRAVE" JUDICIAL DEPARTURE
FROM THE JURISDICTIONAL REQUIREMENT FIXED BY CONGRESS. 

THIRD.  THE OTHERWISE COMPLETE SUSPENSION OF FLORIDA'S LAW WAS
LIMITED ONLY BY THE CONDITION THAT APPELLEES MAKE BOND OF FIVE THOUSAND
DOLLARS PAYABLE TO THE ATTORNEY GENERAL OF FLORIDA AND THE DISTRICT
ATTORNEYS OF THE STATE.  MANIFESTLY, THESE OFFICIALS HAVE NO INDIVIDUAL
INTEREST IN THE MONOPOLY PROHIBITED BY THE FLORIDA LAW.  THE MAJOR
INJURIES ACCRUING FROM THE SUSPENSION OF THE LAW WILL NOT BE INFLICTED
UPON THEM, BUT UPON THE PEOPLE OF FLORIDA WHO ARE REQUIRED TO PAY
MONOPOLY PRICES WHILE THE LAW REMAINS ENJOINED.  THUS, WHILE THE LAW IS
SUSPENDED, THESE NON-RESIDENT APPELLEES CAN CARRY ON A MONOPOLISTIC
BUSINESS IN FLORIDA CONTRARY TO ITS PROHIBITIONS, AND THE PEOPLE OF
FLORIDA WHO MUST PAY MONOPOLY PRICES ARE GRANTED NO PROTECTION.  WE
HAVE RECENTLY DECLARED THE GOVERNING PRINCIPLE THAT "IT IS THE DUTY OF
A COURT OF EQUITY GRANTING INJUNCTIVE RELIEF TO DO SO UPON CONDITIONS
THAT WILL PROTECT ALL - INCLUDING THE PUBLIC - WHOSE INTERESTS THE
INJUNCTION MAY AFFECT."  FN38  THE INJUNCTION HERE WAS NOT GRANTED UPON
CONDITIONS THAT WOULD PROTECT THE INTERESTS OF ALL WHO MIGHT BE
AFFECTED BY IT.  IT NEITHER ORDERED THE MONOPOLY TRIBUTE EXACTED BY
APPELLEES TO BE PAID INTO COURT DURING SUSPENSION OF THE FLORIDA
STATUTE, NOR REQUIRED A BOND FOR THE BENEFIT OF, AND ADEQUATE TO
INDEMNIFY THOSE WHO MUST PAY THIS TRIBUTE UNTIL THE COURT PERMITS THE
STATUTE TO GO INTO EFFECT. 

NEVERTHELESS, THIS COURT NOW REFUSES TO CORRECT THE GROSSLY UNJUST
FAILURE TO PROTECT THOSE WHO MAY SUFFER IRREPARABLE INJURY FROM THE
SUSPENSION OF THE FLORIDA LAW ON THE GROUND THAT "NO OBJECTION APPEARS
AS TO THE ADEQUACY OF THE BOND OR THE OTHER TERMS OF THE INJUNCTION. 
THESE REMAIN UNDER THE CONTROL OF THE LOWER COURT."  HOWEVER, THE LOWER
COURT HAS ALREADY EXERCISED ITS CONTROL RESULTING IN MANIFESTLY
INJURIOUS ERROR APPARENT ON THE RECORD.  FN39  AND AS "UPON THIS APPEAL
IN EQUITY THE WHOLE CASE IS BEFORE US, WE CAN RENDER SUCH DECREE AS
UNDER ALL THE CIRCUMSTANCES MAY BE PROPER."  FN40  LITIGATION IS NOT A
GAME IN WHICH JUSTICE CAN BE AWARDED ONLY TO THE ALERT AND FASTIDIOUS
OBJECTOR, PARTICULARLY WHEN - AS HERE - A COURT SUSPENDS STATUTORY
RIGHTS OF MEMBERS OF THE PUBLIC WHO, NOT BEING IN COURT, HAVE NO
OPPORTUNITY TO OBJECT.  THE INJUSTICE TO THE PUBLIC APPARENT ON THIS
RECORD VIOLATES THE RUDIMENTARY PRINCIPLES OF EQUITY AND FAIR PLAY.  WE
SHOULD NEITHER CONDONE NOR PERMIT IT. 

THEY WHO ATTACK THE CONSTITUTIONALITY OF A LAW, OBTAIN ITS JUDICIAL
SUSPENSION, AND THEN CONTINUE TO VIOLATE ITS TERMS, SHOULD NOT BENEFIT
BY THE SUSPENSION, IN THE EVENT THE LAW IS LATER HELD CONSTITUTIONAL. 
OTHERWISE, A JUDICIALLY GRANTED PERIOD OF IMMUNITY WILL REWARD
LITIGANTS WHO UNSUCCESSFULLY ASSAIL THE CONSTITUTIONALITY OF
LEGISLATION.  SEEMINGLY, THE TIME HAS ARRIVED WHEN DESPITE OUR
CONSTITUTIONAL SYSTEM OF GOVERNMENT NO STATE LAW CAN BECOME EFFECTIVE
UNTIL A FEDERAL COURT HEARS EVIDENCE ON ITS CONSTITUTIONALITY.  THE
COURTS - RESPONSIBLE FOR THIS FUNDAMENTAL CHANGE - SHOULD AT LEAST
PROTECT CITIZENS OF AN ENACTING STATE FROM DISOBEDIENCE TO A STATE LAW
PERMITTED BY AN ERRONEOUS OR IMPROVIDENT INTERLOCUTORY INJUNCTION. 

THE INTERLOCUTORY INJUNCTION SHOULD BE VACATED. 

FN1  CF. BORDEN'S CO. V. BALDWIN, 293 U.S. 194, 203; AETNA INS. CO.
V. HYDE, 275 U.S. 440, 447; PUBLIC SERVICE COMM'N V. GREAT NORTHERN
UTILITIES CO., 289 U.S. 130, 136, 137. 

FN2  BORDEN'S CO. V. BALDWIN, SUPRA, 203. 

FN3  CF., CARROLL V. GREENWICH INSURANCE CO., 199 U.S. 401, 412. 

FN4  GILCHRIST V. INTERBOROUGH CO., 279 U.S. 159, 207; FENNER V.
BOYKIN, 271 U.S. 240, 243-4; CF., WATERS-PIERCE OIL CO. V. TEXAS, 177
U.S. 28, 43; AND SEE CLARK, BRANDEIS, JJ., DISSENTING, CINCINNATI V.
CINCINNATI & H. TRACTION CO., 245 U.S. 446, 461. 

FN5  28 U.S.C. 41; C. 726, 50 STAT. 738, 48 STAT. 775, 47 STAT. 70,
43 STAT. 938, 36 STAT. 1162, AMENDED 37 STAT. 1013. 

FN6  DEFIANCE WATER CO. V. DEFIANCE, 191 U.S. 184, 194. 

FN7  SEE SPIELMAN MOTOR CO. V. DODGE, 295 U.S. 89, 96; CINCINNATI V.
CINCINNATI & H. TRACTION CO., SUPRA, 454, 455; VIRGINIA V. WEST
VIRGINIA(, 231 U.S. 89, 91; CF. DES MOINES V. CITY RY. CO., 214 U.S.
179, 184.  THIS INJUNCTION MAKES STRIKINGLY PERTINENT THE QUESTION OF
JUSTICE HARLAN, DISSENTING, IN EX PARTE YOUNG, 209 U.S. 123, 179(1908):
"IF THE FEDERAL COURT COULD THUS PROHIBIT THE LAW OFFICER OF THE STATE
FROM REPRESENTING IT IN A SUIT BROUGHT IN THE STATE COURT, WHY MIGHT
NOT THE BILL IN THE FEDERAL COURT BE SO AMENDED THAT THAT COURT COULD
REACH ALL THE DISTRICT ATTORNEYS IN MINNESOTA AND FORBID THEM FROM
BRINGING TO THE ATTENTION OF GRAND JURIES AND THE STATE COURTS
VIOLATIONS OF THE STATE ACT  ...  ?"  HIS APPREHENSIVE PROPHECY HAS
MORE THAN COME TRUE IN THE PRESENT CASE. 

FN8  CF., CONTINENTAL WALL PAPER CO. V. VOIGHT & SONS CO., 212 U.S.
227, 262, AFFIRMING 148 F. 939; GIBBS V. BALTIMORE GAS CO., 130 U.S.
396, 412.  MCCONNELL V. CAMORS-MCCONNELL CO., 152 F. 321; PACIFIC
POSTAL TELEGRAPH CABLE CO. V. WESTERN UNION TEL. CO., 50 F. 493;
AMERICAN BISCUIT & MFG. CO. V. KLOTZ, 44 F. 721; 1 POM.  EQUITY JURIS. 
(3RD ED.)  SEC.  402. 

FN9  WATERS-PIERCE OIL CO. V. TEXAS (NO. 1), 212 U.S. 86, 107. 
"THERE IS NOTHING IN THE CONSTITUTION OF THE UNITED STATES WHICH
PRECLUDES A STATE FROM ADOPTING AND ENFORCING (STATUTES WHICH SECURE
COMPETITION AND PRECLUDE COMBINATIONS WHICH TEND TO DEFEAT IT)  ...  TO
SO DECIDE WOULD BE STEPPING BACKWARDS."  INTERNATIONAL HARVESTER CO. V.
MISSOURI, 234 U.S. 199, 209.  SEE, ATLANTIC & PAC. TEA CO. V. GROSJEAN,
301 U.S. 412, 425-6; NEBBIA V. NEW YORK, 291 U.S. 502, 529; RAST V. VAN
DEMAN & LEWIS CO., 240 U.S. 342, 366-7. 

FN10  NATIONAL COTTON OIL CO. V. TEXAS, 197 U.S. 115, 129; CARROLL V.
GREENWICH INS. CO., SUPRA, 411. 

FN11  PUERTO RICO V. SHELL CO., 302 U.S. 253, 260, 261. 

FN12  INTERSTATE CIRCUIT, INC. V. UNITED STATES, 306 U.S. 208, 230. 

FN13  CENTRAL LUMBER CO. V. SOUTH DAKOTA, 226 U.S. 157, 161. 

FN14  WATERS-PIERCE OIL CO. V. TEXAS (NO. 1), SUPRA, 108. 

FN15  CARROLL V. GREENWICH INS. CO., SUPRA, 411; CENTRAL LUMBER CO.
V. SOUTH DAKOTA, SUPRA, 160.  "A LEGISLATURE MAY HIT AT AN ABUSE WHICH
IT HAS FOUND, EVEN THOUGH IT HAS FAILED TO STRIKE AT ANOTHER."  UNITED
STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144, 151. 

FN16  CF. EX PARTE YOUNG, 209 U.S. 123, HARLAN, J., DISSENTING, 168
204; AND SEE FITTS V. MCGHEE, 172 U.S. 516, 528, 530; IN RE AYERS, 123
U.S. 443, 496, 497, 505. 

FN17  POLK CO. V. GLOVER, 305 U.S. 5. 

FN18  BORDEN'S CO. V. BALDWIN, SUPRA, AT 210. 

FN19  SEE DISSENT, MCCART V. INDIANAPOLIS WATER CO., 302 U.S. 419,
435, AND NOTE. 

FN20  LION BONDING CO. V. KARATZ, 262 U.S. 77, 86. 

FN21  EBERHARD V. NORTHWESTERN MUTUAL LIFE INS. CO., 241 F. 353, 356,
REFERRED TO WITH APPARENT APPROVAL IN LION BONDING CO. V. KARATZ,
SUPRA. 

FN22  SMITH V. SWORMSTEDT, 16 HOW.  288. 

FN23  BEATTY V. KURTZ, 2 PET. 566. 

FN24  EBERHARD CASE, SUPRA, 356. 

FN25  SHIELDS V. THOMAS, 17 HOW.  3, BUT SEE CHAPMAN V. HANDLEY, 151
U.S. 443. 

FN26  TROY BANK V. WHITEHEAD & CO., 222 U.S. 39, 41. 

FN27  ID. 40. 

FN28  ALASKA PACKERS ASSN. V. PILLSBURY, 301 U.S. 174, 177;
CHRISTOPHER V. BRUSSELBACK, 302 U.S. 500, 505; SEE, KVOS, INC. V.
ASSOCIATED PRESS, 299 U.S. 269, 279. 

FN29  POPE V. BLANTON, 10 F.SUPP.  15, 18, DISMISSED PER CURIAM FOR
LACK OF REQUISITE JURISDICTIONAL AMOUNT IN CONTROVERSY, 299 U.S. 521;
GAVICA V. DONAUGH, 93 F.2D 173. 

FN30  ROGERS V. HENNEPIN COUNTY, 239 U.S. 621.  THE COMPLAINT APPEARS
IN THE ORIGINAL RECORDS OF THIS COURT, NO. 411, OCT. TERM 1915.  CF.,
ROBBINS V. WESTERN AUTO INS. CO., 4 F.2D 249, CERT. DEN., 268 U.S. 698;
WOODS V. THOMPSON, 14 F.2D 951, AND ILLINOIS BANKERS' LIFE ASSN. V.
FARRIS, 21 F.2D 1014, CERT. DEN., 276 U.S. 621. 

FN31  CF., CARROLL V. GREENWICH INS. CO., SUPRA, 412. 

FN32  SCOTT V. DONALD, 165 U.S. 107, 114, 115. 

FN33  CF., GLENWOOD LIGHT & W. CO. V. MUTUAL LIGHT CO., 239 U.S. 121,
125, 126; KVOS, INC. V. ASSOCIATED PRESS, 299 U.S. 269, 277. 

FN34  "COST OF COMPLIANCE" WITH AN ASSAILED LEGISLATIVE ACT MAY BE
CONSIDERED THE MEASURE OF THE AMOUNT IN CONTROVERSY WHEN A RIGHT OF
COMPLAINANT IS REGULATED, OR WHERE HE IS REQUIRED TO TAKE AFFIRMATIVE
ACTION.  CF., KROGER GROCERY CO. V. LUTZ, 299 U.S. 300, 301; MCNUTT V.
GENERAL MOTORS ACCEPTANCE CORP., 298 U.S. 178, 181.  BUT APPELLEES HAVE
NOT BEEN REQUIRED TO TAKE ANY AFFIRMATIVE STEPS, NOR ARE THEY PERMITTED
TO FIX PRICES ON CONDITION THAT THEY "COMPLY" WITH REGULATIONS.  THE
FIXING OF PRICES THROUGH COMBINATIONS HAS BEEN PROHIBITED.  OBVIOUSLY,
APPELLEES CANNOT BE PROHIBITED FROM DOING THAT WHICH THEY MAY ALSO DO
BY "COMPLYING" WITH THE STATUTE. 

FN35  ELGIN V. MARSHALL, 106 U.S. 578, 581. 

FN36  SEE HEALY V. RATTA, 292 U.S. 263, 270. 

FN37  ID. 

FN38  INLAND STEEL CO. V. UNITED STATES, 306 U.S. 153, 157. 

FN39  SEE, LAMB V. CRAMER, 285 U.S. 217, 222; UNITED STATES V.
TENNESSEE & COOSA R. CO., 176 U.S. 242, 256; REVISED RULES OF THE
SUPREME COURT OF THE UNITED STATES, 27, PARAGRAPH 6; CF., MAHLER V.
EBY, 264 U.S. 32, 45. 

FN40  UNITED STATES V. RIO GRANDE IRRIGATION CO., 184 U.S. 416, 423;
CINCINNATI V. CINCINNATI & H. TRACTION CO., SUPRA, 454; RIDINGS V.
JOHNSON, 128 U.S. 212, 218; CF., PATTERSON V. ALABAMA, 294 U.S. 600,
607. 
..END :
























BUCK V. GALLAGHER, 307 U.S. 95 


NO. 329.  ARGUED JANUARY 10, 1939.  - DECIDED APRIL 17, 1939.  - 24
F.SUPP.  541, REVERSED. 


1.  IN A SUIT TO RESTRAIN THE ENFORCEMENT OF A STATUTE PROHIBITING OR
REGULATING A BUSINESS, THE MATTER IN CONTROVERSY IS THE RIGHT TO CARRY
ON THE BUSINESS FREE FROM THE PROHIBITION OR REGULATION.  P. 100. 

2.  THE BURDEN OF SHOWING JURISDICTIONAL VALUE IN CONTROVERSY IS ON
THE PLAINTIFF.  P. 102. 

THE VALUE OF THE RIGHT TO BE FREE IN ONE'S BUSINESS FROM A STATUTORY
REGULATION MAY BE SHOWN BY PROVING THE ADDITIONAL COST OF COMPLYING
WITH THE REGULATION.  P. 103. 

3.  OWNERS OF THE COPYRIGHTS OF MUSICAL COMPOSITIONS, WITH A VIEW TO
PROTECTION AGAINST UNLICENSED PUBLIC PERFORMANCES FOR PROFIT FOR WHICH
THEY RECEIVED NO COMPENSATION, GRANTED TO AN UNINCORPORATED
ASSOCIATION, OF WHICH THEY WERE THE MEMBERS, THE EXCLUSIVE RIGHT OF
PUBLIC PERFORMANCE FOR A TERM OF YEARS.  IT WAS THE FUNCTION OF THE
SOCIETY TO PROTECT ITSELF AND ITS MEMBERS FROM PIRACIES AND TO LICENSE
PUBLIC PERFORMANCES BY OTHERS, FOR ROYALTIES WHICH, AFTER CERTAIN
DEDUCTIONS, IT DISTRIBUTED AMONG ITS MEMBERS, PURSUANT TO ITS ARTICLES
OF ASSOCIATION.  IN A SUIT BY THE SOCIETY AND SOME OF ITS MEMBERS
REPRESENTING ALL, SEEKING TO ENJOIN ON CONSTITUTIONAL GROUNDS THE
ENFORCEMENT OF A STATUTE OF WASHINGTON WHICH PURPORTS TO REGULATE
LICENSING BY COMBINATIONS OF COPYRIGHT OWNERS, THE BILL ALLEGED,
GENERALLY, THAT THE VALUE OF THE MATTER IN CONTROVERSY EXCEEDED $3,000,
AND ALSO THAT THE COST OF COMPLYING WITH A PROVISION OF THE STATUTE
REQUIRING COPYRIGHT OWNERS TO FILE YEARLY A LIST OF THEIR COPYRIGHTED
WORKS WOULD INVOLVE COSTS TO THE SOCIETY, OR TO EACH OF THE MEMBERS
INDIVIDUALLY IF THEY ACTED IN THE MATTER WITHOUT THE SOCIETY, OF
SPECIFIED AMOUNTS EACH IN EXCESS OF THE JURISDICTIONAL VALUE.  HELD: 

(1)  THE ALLEGATIONS SHOW THAT THE MEMBERS HAVE A COMMON AND
UNDIVIDED INTEREST IN THE RIGHT TO LICENSE IN ASSOCIATION THROUGH THE
SOCIETY FREE OF THE PROVISIONS OF THE STATE STATUTE.  P. 103. 

(2)  UPON A MOTION TO DISMISS FOR WANT OF JURISDICTIONAL AMOUNT,
WHICH DENIED THE ALLEGATIONS OF THE BILL AND CHALLENGED THEIR
SUFFICIENCY IN THAT REGARD, THE DISTRICT COURT ERRED IN DISMISSING THE
BILL WITHOUT ALLOWING PLAINTIFFS THE OPPORTUNITY TO PRODUCE EVIDENCE OF
THE COST OF COMPLYING WITH THE STATUTE AND OF THE VALUE OF PROPERTY
RIGHTS AFFECTED BY IT.  P. 103. 

BUCK ET AL. V. GALLAGHER, STATE TREASURER, ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF WASHINGTON. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH
DISMISSED, FOR WANT OF JURISDICTION, A BILL TO ENJOIN THE ENFORCEMENT
OF A STATUTE OF THE STATE OF WASHINGTON AFFECTING THE RIGHT OF THE
OWNERS OF COPYRIGHTS TO COMBINE IN LICENSING PERFORMANCES OF THEIR
MUSICAL COMPOSITIONS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL, UNDER SEC. 266 OF THE JUDICIAL CODE, FROM A DECREE
DISMISSING APPELLANTS' BILL TO ENJOIN THE ENFORCEMENT BY THE APPELLEES
OF A STATUTE OF THE STATE OF WASHINGTON.  FN1  THE PURPOSE OF THE
STATUTE IS TO RENDER ILLEGAL CERTAIN ACTIVITIES CARRIED ON BY POOLS OF
COPYRIGHT OWNERS IN AUTHORIZING BY BLANKET LICENSES THE PERFORMANCE OF
THEIR MUSICAL COMPOSITIONS. 

THE STATUTE DECLARES IT UNLAWFUL FOR TWO OR MORE PERSONS HOLDING
SEPARATE COPYRIGHTED WORKS TO POOL THEIR INTERESTS IN ORDER TO FIX
PRICES FOR THEIR USE, TO COLLECT FEES OR TO ISSUE BLANKET LICENSES FOR
THEIR COMMERCIAL PRODUCTION.  JOINT UNDERTAKINGS FOR THIS PURPOSE ARE
PERMITTED IF THE LICENSES ARE ISSUED AT RATES ASSESSED ON A PER PIECE
SYSTEM OF USAGE.  ALL COMBINATIONS OF OWNERS OF SEPARATE COPYRIGHTED
MUSICAL WORKS ARE REQUIRED TO FILE A COMPLETE LIST OF THESE WORKS ONCE
EACH YEAR WITH THE SECRETARY OF STATE OF THE STATE OF WASHINGTON,
TOGETHER WITH DETAILED INFORMATION AS TO PRICES AND OWNERSHIP.  THERE
ARE NUMEROUS OTHER PROVISIONS UNNECESSARY TO DETAIL. 

THE APPELLANTS ARE THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND
PUBLISHERS; GENE BUCK, SUING IN HIS OWN NAME AND AS THE PRESIDENT OF
THE SOCIETY; AND A NUMBER OF OTHER MEMBERS, CORPORATE PUBLISHERS AND
AUTHORS, COMPOSERS OR THEIR NEXT OF KIN.  THIS SUIT WAS BROUGHT BY
COMPLAINANTS ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED,
MEMBERS OF THE SOCIETY TOO NUMEROUS TO MAKE IT PRACTICABLE TO JOIN THEM
AS PLAINTIFFS IN A MATTER OF COMMON AND GENERAL INTEREST.  THE BILL
ALLEGES THE ORGANIZATION OF THE SOCIETY AS A VOLUNTARY, UNINCORPORATED,
NON-PROFIT ASSOCIATION UNDER THE LAWS OF NEW YORK, AND SETS OUT THAT
ITS PURPOSE IS TO PROTECT THE OWNERS OF COPYRIGHTED MUSICAL WORKS
AGAINST PIRACIES, TO GRANT LICENSES AND TO COLLECT ROYALTIES FOR THE
PUBLIC PERFORMANCE FOR PROFIT OF THE COMPOSITIONS OF ITS MEMBERS. 
THESE ARE COMPOSERS, AUTHORS AND PUBLISHERS OF MUSICAL COMPOSITIONS OR
THEIR SUCCESSORS.  THE ROYALTIES AND LICENSE FEES COLLECTED BY THE
SOCIETY ARE DISTRIBUTED FROM TIME TO TIME, AS ORDERED BY THE BOARD OF
DIRECTORS, AMONG THE MEMBERS OF THE SOCIETY, AFTER THE PAYMENT OF
EXPENSES OF OPERATION AND SUMS DUE TO FOREIGN AFFILIATED SOCIETIES AND
AFTER THE DEDUCTION OF A LIMITED RESERVE FUND. 

IN ADDITION TO THE GENERAL ALLEGATION THAT THE VALUE OF THE MATTER IN
DISPUTE IS IN EXCESS OF $3,000, THE BILL ALLEGES THAT THE VALUE OF EACH
PUBLISHER'S COPYRIGHTS EXCEEDS $1,000,000.  THE BILL FURTHER SHOWS THAT
EACH INDIVIDUAL COMPLAINANT HAS RIGHTS TO ROYALTIES AND RENEWALS WORTH
IN EXCESS OF $100,000.  IT IS SHOWN BY THE BILL THAT IN THE STATE OF
WASHINGTON THERE WERE FIVE HUNDRED TWENTY-EIGHT CONTRACTS OUTSTANDING
IN 1936, ALL ENTERED INTO IN THE NAME OF THE SOCIETY, FROM WHICH IT
RECEIVED MORE THAN $60,000 AND THAT SIMILAR SUMS ANNUALLY WILL BE
COLLECTED.  OTHER ALLEGATIONS ARE DISCUSSED LATER. 

ON THE FILING OF THE BILL, A MOTION WAS MADE FOR AN INTERLOCUTORY
INJUNCTION AND AFFIDAVITS WERE FILED IN SUPPORT OF THE REQUEST.  AT THE
TIME THE MOTION FOR A TEMPORARY INJUNCTION CAME ON FOR HEARING, THE
DEFENDANT STATE OFFICERS AND CERTAIN INTERVENORS FILED MOTIONS TO
DISMISS WHICH CHALLENGED THE BILL ON VARIOUS GROUNDS.  THE DISTRICT
COURT CONSIDERED ONLY ONE GROUND:  WHETHER THE VALUE OF THE SUBJECT
MATTER IN DISPUTE IS MORE THAN $3,000, EXCLUSIVE OF INTEREST AND
COSTS.  UPON THE HEARING, THE DISTRICT COURT FOUND THAT NEITHER THE
BILL NOR THE RECORDS SHOWS THE NECESSARY JURISDICTIONAL VALUE AND
DISMISSED THE BILL.  THE BASIS FOR THIS RULING IS TREATED HERE. 

ALTHOUGH THIS STATUTE OF WASHINGTON, AS THAT OF FLORIDA,  FN2  IS
AIMED AT THE POWER EXERCISED BY COMBINATIONS OF COPYRIGHT OWNERS OVER
THE USE OF MUSICAL COMPOSITIONS FOR PROFIT, THE DIFFERENCES BETWEEN THE
ENACTMENTS AND THE PROCEDURAL SITUATIONS REQUIRE ADDITIONAL
CONSIDERATION.  THE FLORIDA STATUTE DOES NOT PERMIT ANY COMBINATION OF
COPYRIGHT OWNERS FOR THE PURPOSE OF LICENSING THE USE OF THEIR
COMPOSITIONS.  THE PROHIBITION IS COMPLETE.  IN THE WASHINGTON STATUTE,
ON THE OTHER HAND, SUCH A COMBINATION, FEDERATION OR POOL IS NOT
PROHIBITED IF IT ISSUES LICENSES "ON RATES ASSESSED ON A PER PIECE
SYSTEM OF USAGE."  EVEN UPON THESE PERMITTED TRANSACTIONS THERE ARE
LIMITATIONS OF PRICE AND USE, UNNECESSARY TO CONSIDER HERE.  FN3  THE
STATUTE IS DIRECTED PARTICULARLY AT THE PRACTICE OF ISSUING BLANKET
LICENSES WHICH AUTHORIZE THE PERFORMANCE OF ALL COPYRIGHTED MATERIAL
BELONGING TO THE LICENSOR.  WHETHER A STATE STATUTE IS REGULATORY OR
PROHIBITORY, WHEN A BILL IS FILED AGAINST ITS ENFORCEMENT UNDER SEC.
266 OF THE JUDICIAL CODE, THE MATTER IN CONTROVERSY IS THE RIGHT TO
CARRY ON BUSINESS FREE OF THE REGULATION OR PROHIBITION OF THE
STATUTE.  FN4  WHERE THE STATUTE IS REGULATORY THE VALUE OF THE RIGHT
TO CARRY ON THE BUSINESS, AS WAS SAID IN MCNUTT V. GENERAL MOTORS
ACCEPTANCE CORP., MAY BE SHOWN BY EVIDENCE OF THE LOSS THAT WOULD
FOLLOW THE ENFORCEMENT OF THE STATUTE.  AND THIS LOSS MAY BE SOMETHING
OTHER THAN THE DIFFERENCE BETWEEN THE NET PROFIT FREE OF REGULATION AND
THE NET PROFIT SUBJECT TO REGULATION.  THE DIFFICULTIES OF DETERMINING
THE VALUE OF RIGHTS BY CALCULATING PAST PROFITS AS COMPARED WITH
POSSIBLE FUTURE PROFITS, INFLUENCED BY THE SINGLE FACTOR OF STATUTORY
REGULATION, ARE OBVIOUS.  THIS DIFFERENCE IS NOT THE ONLY TEST OF THE
VALUE OF THE RIGHT IN QUESTION.  THE VALUE OF THE MATTER IN CONTROVERSY
MAY BE AT LEAST AS ACCURATELY SHOWN BY PROVING THE ADDITIONAL COST OF
COMPLYING WITH THE REGULATION.  THIS FACTOR WAS NOT OFFERED IN EVIDENCE
IN THE MCNUTT CASE. 

IN PACKARD V. BANTON  FN5  THE EXISTENCE OF THE JURISDICTIONAL AMOUNT
WAS PARTLY DETERMINED BY CONSIDERATION OF THE COST OF PROVIDING
LIABILITY INSURANCE REQUIRED BY A REGULATORY STATUTE.  WHERE A STATE
RAILROAD COMMISSION REQUIRED THE CONSTRUCTION AND SERVICE OF AN
INDUSTRIAL SPUR WHICH DID NOT INCREASE EARNING CAPACITY, THE COST WAS
HELD TO MEASURE THE JURISDICTIONAL AMOUNT.  FN6  THE EXPENSE OF
PRODUCING THE INFORMATION REQUIRED BY A CHALLENGED ORDER IN A UTILITY
INVESTIGATION WAS CONSIDERED SUFFICIENT TO ESTABLISH THE VALUE OF THE
MATTER IN CONTROVERSY.  FN7 THE COST OF COMPLYING WITH THE CHALLENGED
STATUTE AS A TEST OF THE VALUE OF THE AMOUNT IN CONTROVERSY HAS BEEN
APPLIED IN EFFECT IN SUITS TO ENJOIN THE COLLECTION OF TAXES AS
UNCONSTITUTIONAL INTERFERENCES WITH THE RIGHT TO DO BUSINESS.  IN SUCH
CASES "THE SUM DUE OR DEMANDED IS THE MATTER IN CONTROVERSY AND THE
AMOUNT OF THE TAX, NOT ITS CAPITALIZED VALUE, IS THE MEASURE OF THE
JURISDICTIONAL AMOUNT."  FN8 

BY SEC. 4 OF THE WASHINGTON STATUTE EVERY COMBINATION OF TWO OR MORE
COPYRIGHT OWNERS MUST FILE, ONCE A YEAR, WITH THE SECRETARY OF STATE, A
COMPLETE LIST OF THEIR COPYRIGHTED WORKS, UNDER OATH.  FN9  BY SEC. 3,
INDIVIDUALS ARE FORBIDDEN FROM JOINING TOGETHER "FOR THE PURPOSE OF
COLLECTING FEES IN THIS STATE" UNLESS THEIR LICENSES ARE ON A PER PIECE
SYSTEM OF RATES.  IN ADDITION TO THE GENERAL ALLEGATION THAT THE VALUE
OF THE MATTER IN CONTROVERSY EXCEEDS $3,000, THE BILL ALLEGES THE COST
OF COMPLIANCE BY THE SOCIETY, THE COMBINATION OF MEMBERS, WITH SEC. 4
WOULD EXCEED $300,000.  FN10  FOR THE INDIVIDUAL MEMBERS WHO NOW HAVE
THE BENEFITS OF THE SERVICES PERFORMED BY THE SOCIETY, ADDITIONAL
ALLEGATIONS SET OUT THE COST IMPOSED UPON THEM BY THE STATUTORY
REGULATION AS BEING "IN EXCESS OF $10,000" TO EACH FOR CARRYING ON FOR
THEMSELVES THE FUNCTIONS NOW PERFORMED FOR THEM BY THE SOCIETY.  THE
MOTIONS TO DISMISS DENY THE GENERAL ALLEGATION OF VALUE, DENY THAT
THERE WOULD BE ANY COST TO THE SOCIETY BY COMPLIANCE WITH SEC. 4 AS THE
REQUIRED LIST IS ALREADY COMPLIED AND THE EXPENSE, SINCE THE SOCIETY IS
NON-PROFIT, WOULD BE BORNE BY MEMBERS, AND DENY THAT THE INDIVIDUAL
COMPLAINANTS WOULD BE PUT TO A COST OF $10,000 EACH.  THERE WAS NO
ALLEGATION OF THE LOSS OR COST TO THE SOCIETY OR MEMBERS OCCASIONED BY
THE REQUIREMENT THAT THE LICENSES FROM POOLED COPYRIGHTS SHOULD BE
ISSUED AT PER PIECE RATES. 

ON SUBMISSION OF THE MOTION TO DISMISS FOR WANT OF THE JURISDICTIONAL
VALUE, THE BURDEN OF PROOF WAS UPON COMPLAINANTS.  FN11  ALTHOUGH THE
TRIAL COURT CALLED SPECIFIC ATTENTION TO THE JURISDICTIONAL MATTERS
THREE MONTHS BEFORE IT FILED ITS OPINION DENYING JURISDICTION, BY
REQUEST FOR ADDITIONAL BRIEFS, NO EVIDENCE WAS OFFERED.  AFTER THE
FILING OF THE OPINION AND BEFORE THE ENTRY OF THE DECREE, ON
COMPLAINANTS' MOTION AN ORDER WAS ENTERED TO SHOW CAUSE WHY WITNESSES
SHOULD NOT BE HEARD ON THE VALUE OF THE MATTER IN CONTROVERSY.  THE
COMPLAINANTS FURNISHED AN UNCONTROVERTED AFFIDAVIT STATING THAT THEIR
FAILURE TO OFFER EVIDENCE WAS DUE TO THE FACT THAT THERE WAS NO DENIAL
OF THE FACTS PLEADED.  THE OFFER OF PROOF SHOWED THAT IT WAS DESIRED
"TO OFFER THE TESTIMONY OF EXPERT WITNESSES CONCERNING THE COST OF
COMPLYING WITH THE REQUIREMENTS OF SECTION 4 OF THE ACT, AND CONCERNING
THE VALUE OF THE PROPERTY RIGHTS IN QUESTION WHICH WILL BE AFFECTED BY
THIS STATUTE."  THE COURT DID NOT REJECT THE EVIDENCE AS A MATTER OF
DISCRETION BECAUSE TARDILY PRESENTED.  ON THE HEARING ON THE RULE THE
COURT MADE IT QUITE CLEAR THAT THE PROFFERED EVIDENCE WAS DEEMED
IMMATERIAL BECAUSE IT SHOWED ONLY COST OF COMPLIANCE, NOT THE VALUE OF
THE RIGHT TO DO BUSINESS FREE OF THE COMPULSION OF THE STATUTE.  FN12
THE APPLICATION TO TAKE FURTHER TESTIMONY WAS DENIED AND THE MOTION TO
DISMISS GRANTED "IN THAT THIS CAUSE IS NOT WITHIN THE JURISDICTION OF
THIS COURT AS A FEDERAL COURT."  WE CONCLUDE THAT THE REFUSAL TO PERMIT
ADDITIONAL EVIDENCE IN THESE CIRCUMSTANCES WAS ERROR. 

THE COMPLAINANTS IN THIS CASE ARE THE SAME AS THOSE IN GIBBS V. BUCK,
SUPRA.  IN THE GIBBS CASE WE POINTED OUT THAT THE MEMBERS SHARE
DIRECTLY IN THE EARNINGS OF THE SOCIETY AND HAVE A COMMON AND UNDIVIDED
INTEREST IN THE RIGHT TO LICENSE IN ASSOCIATION THROUGH THE SOCIETY
FREE OF THE PROVISIONS OF THE STATE STATUTE.  THE ALLEGATIONS AS TO
RELATIONSHIP BETWEEN THE SOCIETY AND ITS MEMBERS SHOW THE SAME STATUS
IN THIS CASE.  THE FACT THAT "NEITHER PRACTICE NOR RULE OF THE
COMMITTEE CONCERNING THE APPORTIONING AMONG THE SOCIETY'S MEMBERS OF
THE POOLED LICENSE FEES REALIZED IS SHOWN,"  FN13  DOES NOT AFFECT THE
RIGHTS MEMBERS HAVE IN THE APPORTIONMENT OF THE ROYALTIES FROM LICENSE
FEES.  THESE RIGHTS ARE GRANTED BY THE ARTICLES OF ASSOCIATION WHICH
ARE A PART OF THE BILL.  KVOS, INC. V. ASSOCIATED PRESS,  FN14  RELIED
UPON BELOW, IS DISTINGUISHED IN THE GIBBS CASE. 

THE CAUSE WILL BE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO
PERMIT THE INTRODUCTION OF EVIDENCE AND FOR FURTHER PROCEEDINGS NOT
INCONSISTENT HEREWITH.  REVERSED. 

FN1  BUCK V. CASE, 24 F.SUPP.  541.  WASHINGTON LAWS 1937, C. 218, P.
1070. 

FN2  CONSIDERED IN GIBBS V. BUCK, ANTE, P. 66. 

FN3  WASHINGTON LAWS, 1937, SEC. 3, C. 218, P. 1071, READS AS
FOLLOWS:  "IT SHALL BE UNLAWFUL FOR TWO OR MORE PERSONS HOLDING OR
CLAIMING SEPARATE COPYRIGHTED WORKS UNDER THE COPYRIGHT LAWS OF THE
UNITED STATES, EITHER WITHIN OR WITHOUT THE STATE, TO BAND TOGETHER, OR
TO POOL THEIR INTEREST FOR THE PURPOSE OF FIXING THE PRICES ON THE USE
OF SAID COPYRIGHTED WORKS, OR TO POOL THEIR SEPARATE INTERESTS OR TO
CONSPIRE, FEDERATE, OR JOIN TOGETHER, FOR THE PURPOSE OF COLLECTING
FEES IN THIS STATE, OR TO ISSUE BLANKET LICENSES IN THIS STATE, FOR THE
RIGHT TO COMMERCIALLY USE OR PERFORM PUBLICLY THEIR SEPARATE
COPYRIGHTED WORKS:  PROVIDED, HOWEVER, SUCH PERSONS MAY JOIN TOGETHER
IF THEY ISSUE LICENSES ON RATES ASSESSED ON A PER PIECE SYSTEM OF
USAGE; PROVIDED, FURTHER, THIS ACT SHALL NOT APPLY TO ANY ONE
INDIVIDUAL AUTHOR OR COMPOSER OR COPYRIGHT HOLDER OR OWNER WHO MAY
DEMAND ANY PRICE OR FEE HE OR SHE MAY CHOOSE FOR THE RIGHT TO USE OR
PUBLICLY PERFORM HIS OR HER INDIVIDUAL COPYRIGHTED WORK OR WORKS:
PROVIDED, FURTHER, SUCH PER PIECE SYSTEM OF LICENSING MUST NOT BE IN
EXCESS OF ANY PER PIECE SYSTEM IN OPERATION IN OTHER STATES WHERE ANY
GROUP OR PERSONS AFFECTED BY THIS ACT DOES BUSINESS, AND ALL GROUPS AND
PERSONS AFFECTED BY THIS ACT, ARE PROHIBITED FROM DISCRIMINATING
AGAINST THE CITIZENS OF THIS STATE BY CHARGING HIGHER AND MORE
INEQUITABLE RATES PER PIECE FOR MUSIC LICENSES IN THIS STATE THAN IN
OTHER STATES:  PROVIDED, FURTHER, WHERE THE OWNER, HOLDER, OR PERSON
HAVING CONTROL OF ANY COPYRIGHTED WORK HAS SOLD THE RIGHT TO THE SINGLE
USE OF SAID COPYRIGHTED WORK, WHERE ITS SOLE VALUE IS IN ITS USE FOR
PUBLIC PERFORMANCE FOR PROFIT, AND HAS RECEIVED ANY CONSIDERATION
THEREFOR, EITHER WITHIN OR WITHOUT THE STATE, THEN SAID PERSON OR
PERSONS SHALL BE DEEMED TO HAVE SOLD AND PARTED WITH THE RIGHT TO
FURTHER RESTRICT THE USE OF SAID COPYRIGHTED WORK OR WORKS."    FN4
PROHIBITORY STATUTES - GIBBS V. BUCK, SUPRA; REGULATORY STATUTES -
MCNUTT V. GENERAL MOTORS ACCEPTANCE CORP., 298 U.S. 178, 181; KROGER
GROCERY CO. V. LUTZ, 299 U.S. 300, 301. 

FN5  264 U.S. 140. 

FN6  WESTERN & ATLANTIC R. CO. V. RAILROAD COMM'N, 261 U.S. 264,
267. 

FN7  PETROLEUM EXPLORATION, INC. V. PUBLIC SERVICE COMM'N, 304 U.S.
209, 215. 

FN8  HEALY V. RATTA, 292 U.S. 263, 271, AND CASES THERE CITED;
GROSJEAN V. AM. PRESS CO., 297 U.S. 233, 241; HENNEFORD V. NORTHERN
PACIFIC RY. CO., 303 U.S. 17, 19. 

FN9  THE LIST MUST STATE THAT IT "IS A COMPLETE CATALOGUE OF THE
TITLES OF THEIR CLAIMED COMPOSITIONS, WHETHER MUSICAL OR DRAMATIC OR OF
ANY OTHER CLASSIFICATION, AND IN ADDITION TO STATING THE NAME AND TITLE
OF THE COPYRIGHTED WORK IT SHALL RECITE THEREIN THE DATE EACH SEPARATE
WORK WAS COPYRIGHTED, AND THE NAME OF THE AUTHOR, THE DATE OF ITS
ASSIGNMENT, IF ANY, OR THE DATE OF THE ASSIGNMENT OF ANY INTEREST
THEREIN, IF ANY, AND THE NAME OF THE PUBLISHER, THE NAME OF THE PRESENT
OWNER, TOGETHER WITH THE ADDRESSES AND RESIDENCES OF ALL PARTIES WHO
HAVE AT ANY TIME HAD ANY INTEREST IN SUCH COPYRIGHTED WORK." 

FN10  SPECIFICALLY THE ALLEGATION IS THAT "THE COST TO THE SOCIETY OF
ATTEMPTING TO COMPILE THE LISTS AND INFORMATION REQUIRED TO BE
FURNISHED UNDER THE STATE STATUTE WOULD BE FAR IN EXCESS OF $300,000,
WHICH SUM WOULD HAVE TO BE EXPENDED FOR RESEARCH WORK WITH REFERENCE TO
THE PAST HISTORY OF EACH AND EVERY COPYRIGHT OWNER, BY EVERY ONE OF THE
44,000 MEMBERS OF THE SOCIETY AND ITS AFFILIATED SOCIETIES, LAWYERS
FEES FOR OPINIONS AS TO THE RIGHTS OF PARTIES INVOLVED WITH RESPECT TO
THE OWNERSHIP, GRANTS, LICENSES AND OTHER INTERESTS IN THE RESPECTIVE
COPYRIGHTS, CLERICAL HELP AND OTHER INCIDENTAL EXPENSES; EVEN WITH SUCH
AN EXPENDITURE, IT WOULD BE UTTERLY IMPOSSIBLE TO FURNISH AN ACCURATE
OR COMPLETE LIST OF ALL THE RESPECTIVE COPYRIGHTS OF THE MEMBERS OF THE
SOCIETY AND OF ITS AFFILIATED SOCIETIES WITH ALL OF THE DATA REQUIRED
BY THE STATE STATUTE." 

FN11  MCNUTT V. GENERAL MOTORS ACCEPTANCE CORP., 298 U.S. 178, 189. 

FN12  E.G., THIS STATEMENT WAS MADE BY THE COURT:  "PERHAPS WE ARE
SOMEWHAT IN THE FOG WITH RESPECT TO THE MATTER YOU ARE TRYING TO
PRESENT BUT FROM OUR VIEWPOINT IT SEEMS TO US THAT YOU ARE URGING THAT
THE VALUE OF THE THING IN CONTROVERSY IS TO BE MEASURED BY THE COST OF
DOING BUSINESS OR COMPLYING WITH THE STATUTE.  FROM OUR STANDPOINT WE
THINK THE COST OF DOING BUSINESS HAS NOTHING TO DO WITH THE METHOD OF
DOING BUSINESS.  IT IS TRUE THE STATUTE MAY NECESSITATE A LARGE
EXPENDITURE BUT THAT WOULD NOT MEAN ANYTHING BECAUSE BY A LARGE
EXPENDITURE YOU MIGHT MAKE A MUCH LARGER PROFIT.  PERHAPS WE DON'T
UNDERSTAND EACH OTHER BUT I THINK THAT IS THE BASIS OF MEASURING THE
VALUE OF THE MATTER IN CONTROVERSY." 

FN13  BUCK V. CASE, 24 F.SUPP.  541, 549. 

FN14  299 U.S. 269. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :














DRISCOLL V. EDISON CO., 307 U.S. 104 


NO. 509.  ARGUED FEBRUARY 7, 8, 1939.  - DECIDED APRIL 17, 1939.  - 25
F.SUPP.  192, REVERSED. 


1.  THE PROVISION OF THE ACT OF MAY 14, 1934, WITHHOLDING FROM THE
DISTRICT COURTS JURISDICTION OVER SUITS TO ENJOIN ON THE GROUND OF
UNCONSTITUTIONALITY THE ENFORCEMENT OF STATE ORDERS FIXING PUBLIC
UTILITY RATES, "WHERE A PLAIN, SPEEDY, AND EFFICIENT REMEDY AT LAW OR
IN EQUITY MAY BE HAD IN THE COURTS OF SUCH STATE,"  - HELD INAPPLICABLE
BY ITS TERMS TO A SUIT ATTACKING TEMPORARY RATES ORDERED BY THE PUBLIC
UTILITIES COMMISSION IN PENNSYLVANIA, WHERE THE REMEDY BY INJUNCTION IS
CONFINED TO PROCEEDINGS "QUESTIONING THE JURISDICTION OF THE
COMMISSION," AND WHERE THE REMEDY AT LAW BY APPEAL DOES NOT POSTPONE
THE RATES PENDENTE LITE.  PP. 108 ET SEQ. 

2.  THE PROVISIONS OF SEC. 310(A) OF THE PENNSYLVANIA PUBLIC
UTILITIES ACT FOR FIXING TEMPORARY PUBLIC UTILITY RATES ARE NOT LIMITED
TO UTILITIES WHICH KEEP CONTINUING PROPERTY RECORDS.  SECTION 310(B)
FURNISHES A PARTIAL ALTERNATIVE METHOD.  P. 112. 

3.  SECTION 310(A) OF THE ACT EMPOWERS THE COMMISSION TO FIX
TEMPORARY RATES, TO BE CHARGED PENDING FINAL DETERMINATION OF THE RATE
PROCEEDINGS, WHICH SHALL BE SUFFICIENT TO PROVIDE A RETURN OF NOT LESS
THAN 5% UPON ORIGINAL COST, LESS ACCRUED DEPRECIATION, OF THE UTILITY'S
PHYSICAL PROPERTY USED AND USEFUL IN THE PUBLIC SERVICE.  SECTION 309
REQUIRES THAT PERMANENT RATES WHEN DETERMINED SHALL BE "JUST AND
REASONABLE."  IN FIXING THE BASE FOR TEMPORARY RATES IN THIS CASE, THE
COMMISSION DID NOT CONFINE ITSELF TO THE SINGLE FACTOR OF ORIGINAL COST
LESS DEPRECIATION, BUT INTERPRETED SEC. 310(A) AS REQUIRING THAT WEIGHT
BE GIVEN ALSO TO REPRODUCTION COST, GOING CONCERN VALUE AND THE
NECESSITY FOR WORKING CAPITAL, IN COMPLIANCE WITH THE RULE LAID DOWN BY
THIS COURT IN SMYTH V. AMES, 169 U.S. 400.  HELD, THAT IN THE ABSENCE
OF ANY DECISION OF THE STATE COURT ON THE SUBJECT, THIS INTERPRETATION
OF SEC. 310(A), NOT INCONSISTENT WITH ITS TERMS, SHOULD BE ACCEPTED. 
P. 114. 

A DIFFERENT CONSTRUCTION WOULD RAISE THE NOVEL AND IMPORTANT QUESTION
OF THE CONSTITUTIONALITY OF A TEMPORARY RATE, BASED SOLELY ON
DEPRECIATED ORIGINAL COST, WITH PROVISION OF THE STATUTE FOR RECOUPMENT
OF THE LOSS FROM INSUFFICIENT TEMPORARY RATES AS PROVIDED IN SEC.
310(E). 

4.  THIS COURT ADOPTS A JUST AND REASONABLE CONSTRUCTION OF A STATE
STATUTE RENDERING IT CLEARLY CONSTITUTIONAL RATHER THAN ANOTHER THAT
PUTS ITS VALIDITY IN DOUBT.  P. 115. 

5.  IN DETERMINING A RATE BASE, FAILURE TO INCLUDE ALLOWANCE FOR COST
OF FINANCING IS NOT ERRONEOUS WHERE THE EVIDENCE REVEALS NO ACTUAL
EXPENDITURES FOR THAT PURPOSE AND FURNISHES NO FOUNDATION FOR AN
ESTIMATE.  P. 116. 

6.  IT DOES NOT APPEAR FROM EVIDENCE THAT IN DETERMINING RATE BASE
THE COMMISSION FAILED IN THIS CASE TO MAKE DUE ALLOWANCES FOR GOING
CONCERN VALUE; NOR THAT, IN ESTIMATING DEPRECIATED REPRODUCTION COST,
IT FAILED TO MAKE ADEQUATE ALLOWANCE FOR INDIRECT COSTS, SUCH AS
INTEREST, SUPERVISION, FINANCING, TAXES, LEGAL EXPENSES, OR REFUSED TO
CONSIDER CLAIMED INCREASE OF PRICES.  P. 117. 

7.  SIX PER CENT. HELD NOT AN INADEQUATE RATE OF RETURN IN THE CASE
OF AN ELECTRIC POWER COMPANY WHICH OPERATES IN A STABLE COMMUNITY
ACCUSTOMED TO THE USE OF ELECTRICITY AND CLOSE TO THE CAPITAL MARKETS,
WITH FUNDS READILY AVAILABLE FOR SECURE INVESTMENT.  LONG OPERATION AND
ADEQUATE RECORDS MAKE FORECASTS OF NET OPERATING REVENUES FAIRLY
CERTAIN.  UNDER SUCH CIRCUMSTANCES A SIX PER CENT.  RETURN AFTER ALL
ALLOWABLE CHARGES CAN NOT BE CONFISCATORY.  P. 119. 

8.  EVEN WHERE THE RATES IN EFFECT ARE EXCESSIVE, IN A PROCEEDING BY
A COMMISSION TO DETERMINE REASONABLENESS THE UTILITY SHOULD BE ALLOWED
ITS FAIR AND PROPER EXPENSES FOR PRESENTING ITS SIDE TO THE
COMMISSION.  P. 120. 

9.  IN THE ALLOWANCE FOR SUCH RATE-CASE EXPENDITURES, THE PERIOD OVER
WHICH THEY ARE TO BE AMORTIZED WILL DEPEND UPON THE CHARACTER OF
SERVICES RECEIVED OR DISBURSEMENTS MADE.  P. 121. 

THERE COULD RARELY BE AN ANTICIPATION OF ANNUALLY RECURRING CHARGES
FOR RATE REGULATION.  UNDER THE CIRCUMSTANCES HERE PRESENTED WHERE FULL
STATISTICS ON INVESTMENT, INVENTORY AND LABOR REQUIREMENTS HAVE BEEN
MADE WHICH, AS CUMULATED, WILL FORM LARGELY THE BASIS OF ALL FUTURE
NEGOTIATIONS, THE COURT IS OF THE OPINION THAT AMORTIZATION OVER A TEN
YEAR PERIOD IS REASONABLE. 

DRISCOLL ET AL., CONSTITUTING PENNSYLVANIA PUBLIC UTILITY COMM'N, ET
AL. V. EDISON LIGHT & POWER CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF PENNSYLVANIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES
PERMANENTLY ENJOINING THE ENFORCEMENT OF TEMPORARY RATES FIXED FOR AN
ELECTRIC POWER COMPANY. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE DECREE OF A THREE-JUDGE DISTRICT COURT
GRANTING A PERMANENT INJUNCTION AGAINST THE ENFORCEMENT OF TEMPORARY
RATES.  SEC. 266, JUD.  CODE. 

THE APPELLANTS ARE FIVE NAMED PERSONS, INDIVIDUALLY AND AS MEMBERS OF
THE PENNSYLVANIA PUBLIC UTILITY COMMISSION, AND THE UTILITY CONSUMERS
LEAGUE OF YORK, PENNSYLVANIA, INTERVENING DEFENDANT BELOW, AN
UNINCORPORATED ASSOCIATION OF CONSUMERS OF ELECTRIC CURRENT IN THE
TERRITORY SERVED BY THE APPELLEE.  THE LATTER IS A PUBLIC UTILITY
CORPORATION ORGANIZED UNDER THE LAWS OF PENNSYLVANIA, WHICH GENERATES,
TRANSMITS, DISTRIBUTES AND SELLS ELECTRIC ENERGY TO APPROXIMATELY
30,000 CUSTOMERS IN AND ABOUT YORK, PENNSYLVANIA. 

AN INVESTIGATION TO DETERMINE THE REASONABLENESS OF APPELLEE'S RATES
WAS INSTITUTED ON JANUARY 27, 1936.  DURING ITS PROGRESS THE STATE
LEGISLATURE RECODIFIED THE UTILITY LAW OF PENNSYLVANIA.  ACT OF MAY 28,
1937, P.L. 1053, PURDON'S PA. STAT. ANN., 1938 SUPP., TITLE 66, SEC.
1101 ET SEQ. IT ENACTED A TEMPORARY RATE SECTION, 310, WHICH IS THE
SOURCE OF THIS CONTROVERSY. 

ACTING UNDER SEC. 310, THE COMMISSION, AFTER NOTICE AND ARGUMENT,
ISSUED A TEMPORARY RATE ORDER ON JULY 13, 1937, REQUIRING THE UTILITY
TO FILE RATE SCHEDULES WHICH WOULD EFFECT A REDUCTION OF APPROXIMATELY
$435,000 IN ANNUAL GROSS OPERATING REVENUES.  THIS ORDER WAS REPLACED
BY ANOTHER ON JULY 27, 1937, WHICH COMMANDED AN IDENTICAL REDUCTION. 
THIS TIME THE COMMISSION ITSELF PRESCRIBED A SCHEDULE OF RATES.  THE
UTILITY FILED A BILL IN EQUITY IN A STATUTORY COURT IN THE MIDDLE
DISTRICT OF PENNSYLVANIA.  ON OCTOBER 15, 1937, A PERMANENT INJUNCTION
ISSUED.  FN1  THE COMMISSION DID NOT APPEAL.  ON NOVEMBER 30, 1937,
ANOTHER ORDER WAS ISSUED SEEKING TO ESTABLISH THE SAME TEMPORARY RATES
AND TO SECURE THE SAME REDUCTION IN GROSS REVENUES AS THE ORDERS OF
JULY 13 AND 27. 

ON DECEMBER 14, 1937, THE UTILITY FILED A BILL IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA TO ENJOIN THIS
ORDER.  A THREE-JUDGE COURT WAS CONVENED UNDER SEC. 266 OF THE JUDICIAL
CODE.  BY STIPULATION OF THE PARTIES THE APPLICATION FOR AN
INTERLOCUTORY INJUNCTION BROUGHT TO HEARING ON JANUARY 17, 1938, WAS
TREATED AS AN APPLICATION FOR A PERMANENT INJUNCTION.  ON OCTOBER 14,
1938, A PERMANENT INJUNCTION ISSUED. 

THE COURT CONCLUDED AS A MATTER OF LAW THAT THE UTILITY HAD NO PLAIN,
SPEEDY AND ADEQUATE REMEDY IN THE STATE COURTS; THAT THE ORDER IS VOID
BECAUSE THE "COMMISSION ACTED IN DIRECT VIOLATION OF THE MANDATORY
PROVISIONS OF THE PUBLIC UTILITY ACT WHICH REQUIRES RATES FOR (THE
COMPANY) TO BE FIXED UNDER PARAGRAPH (B) OF SECTION 310"; THAT THE
ORDER IS UNCONSTITUTIONAL BECAUSE (1) IT VIOLATES THE PROCEDURAL
REQUIREMENTS OF DUE PROCESS, (2) IT FAILS TO PERMIT THE UTILITY TO EARN
A FAIR RETURN ON THE FAIR VALUE OF ITS PROPERTY USED AND USEFUL IN THE
PUBLIC SERVICE, (3) IT CONFISCATES THE COMPANY'S PROPERTY, AND (4) IT
IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.  FN2 

JURISDICTION OF THE STATUTORY COURT.  - EXCEPT AS MODIFIED BY THE
JOHNSON ACT,  FN3  JURISDICTION EXISTS IN A STATUTORY COURT, CALLED
PURSUANT TO SEC. 266 OF THE JUDICIAL CODE, TO HEAR AND FINALLY
DETERMINE BILLS IN EQUITY SEEKING TEMPORARY AND PERMANENT INJUNCTIONS
AGAINST THE ORDER OF A STATE ADMINISTRATIVE COMMISSION ON THE GROUND OF
IRREPARABLE INJURY.  FN4  BY THIS AMENDATORY ACT, WHERE THE ORDER
ATTACKED AS VIOLATIVE OF THE FEDERAL CONSTITUTION AFFECTS THE RATES OF
A PUBLIC UTILITY, DOES NOT INTERFERE WITH INTERSTATE COMMERCE AND HAS
BEEN MADE AFTER NOTICE AND HEARING, THE JURISDICTION OF THE DISTRICT
COURT TO ENJOIN ITS ENFORCEMENT IS WITHDRAWN, UNLESS NO "PLAIN, SPEEDY
AND EFFICIENT REMEDY MAY BE HAD, AT LAW OR IN EQUITY, IN THE COURTS OF
SUCH STATE."  NO CHALLENGE TO THE JURISDICTION WAS MADE IN THE
STATUTORY COURT OR ON APPEAL.  IN RESPONSE TO QUESTIONS FROM THE BENCH,
COUNSEL FOR THE COMMISSION CONCEDED THAT THERE WAS NO REMEDY IN THE
STATE COURTS WHICH WOULD SATISFY THE JOHNSON ACT. 

THE REASON FOR THIS CONCESSION LIES, SO FAR AS A REMEDY IN EQUITY IS
CONCERNED, IN THE PROVISION OF THE PENNSYLVANIA STATUTE FORBIDDING AN
INJUNCTION AGAINST AN ORDER, "EXCEPT IN A PROCEEDING QUESTIONING THE
JURISDICTION OF THE COMMISSION."  FN5  THE BILL IN CERTAIN ALLEGATIONS
ATTACKS THE SECTION OF THE PUBLIC UTILITY LAW UNDER WHICH THIS ORDER
ISSUED AS VIOLATIVE OF THE FOURTEENTH AMENDMENT IN THAT IT EMPOWERED
THE COMMISSION TO FIX NONCOMPENSATORY AND DISCRIMINATORY TEMPORARY
RATES, IN AN ARBITRARY MANNER.  IN ONE SENSE THIS QUESTIONS THE
JURISDICTION OF THE COMMISSION.  IF SEC. 310 IS INVALID, THERE IS NO
OTHER PROVISION TO AUTHORIZE TEMPORARY RATES.  JURISDICTION IS A WORD
OF UNCERTAIN MEANING.  AS USED IN SEC. 1111, SUPRA, IT APPARENTLY
REFERS TO PROCEEDINGS BY THE COMMISSION UNDER THE TERMS OF THE
STATUTE.  IN THIS USE IT WOULD PERMIT AN INJUNCTION, EQUITABLE GROUNDS
BEING SHOWN, WHERE THE PUBLIC UTILITY IS NOT COVERED BY THE ACT. 
OTHERWISE, ACTION IN EXCESS OF THE POWERS OF THE COMMISSION, SUCH AS A
CONFISCATORY RATE, MIGHT BE DEEMED BEYOND ITS JURISDICTION.  AT ANY
RATE, WITHOUT AN AUTHORITATIVE DETERMINATION BY THE STATE COURTS, WE
CANNOT SAY, FOR THIS CHARACTER OF PROCEEDING, THAT THE REMEDY IN THE
STATE COURTS IS PLAIN, SPEEDY AND EFFICIENT.  FN6  THE REMEDY AT LAW BY
APPEAL IS INEFFECTIVE TO PROTECT THE UTILITY'S POSITION PENDENTE LITE. 
THE SUPERSEDEAS DOES NOT POSTPONE THE APPLICATION OF THE TEMPORARY
RATES.  FN7  THE STATUTORY COURT HAD JURISDICTION OF THE BILL. 

STATUTORY BASIS FOR THE ORDER.  - SEC. 310  FN8  CONTAINS SEVERAL
SUBSECTIONS.  THE COMMISSION FIXED THE TEMPORARY RATES UNDER SUBSECTION
(A).  THE DISTRICT COURT CONCLUDED AS A MATTER OF LAW THAT THIS ACTION
WAS INVALID BECAUSE THEY COULD ONLY BE FIXED UNDER SUBSECTION (B).  THE
TWO SUBSECTIONS ARE SET OUT BELOW.  FN9  IN ITS OPINION, WITHOUT
DISCUSSING SEC. 310(B), THE COURT DECLARED SEC. 310(A) UNCONSTITUTIONAL
BECAUSE IT PERMITTED THE COMMISSION TO FIX A TEMPORARY RATE BASED UPON
THE SINGLE FACTOR OF ORIGINAL COST LESS DEPRECIATION.  FN10  THE
COMMISSION, HOWEVER, DID NOT CONFINE ITSELF TO THAT ONE ELEMENT IN
SETTING THE FAIR VALUE OF THE APPELLEE'S PROPERTY, FOR THE PURPOSE OF
TEMPORARY RATES, AT $5,250,000.  IT GAVE WEIGHT TO REPRODUCTION COST,
ORIGINAL COST, GOING CONCERN VALUE AND THE NECESSITY FOR WORKING
CAPITAL, AND IT ALLOWED ON THIS RATE BASE A RETURN OF MORE THAN SIX PER
CENT.  THIS, OF COURSE, SATISFIES THE REQUIREMENT OF SEC. 310(A) THAT
THE TEMPORARY RATES SHALL PRODUCE NOT LESS THAN 5% ON THE "ORIGINAL
COST, LESS ACCRUED DEPRECIATION." 

APPELLEE'S FIRST CONTENTION IS THAT THE DECREE MAY BE SUSTAINED FOR
THE SOLE REASON THAT THE COMMISSION SHOULD HAVE PROCEEDED UNDER
SUBSECTION (B) BECAUSE THE APPELLEE DOES NOT HAVE CONTINUING PROPERTY
RECORDS.  AS THE CONCLUSION OF THE LOWER COURT ON THIS POINT IS NOT
SUPPORTED BY A STATE DECISION, WE ANALYZE FOR OURSELVES THE PROVISIONS
OF THE SECTIONS.  IT IS CLEAR FROM THE LANGUAGE OF SEC. 310(A) THAT IT
IS APPLICABLE NOT ONLY TO PUBLIC UTILITIES WHOSE REPORTS TO THE
COMMISSION SHOW THE ORIGINAL COST OF THEIR PHYSICAL PROPERTY BUT ALSO
TO THOSE WHOSE ORIGINAL COST IS NOT SO SHOWN.  THE LAST CLAUSE OF THE
PROVISION IN 310(A) WHICH LIMITS ITS APPLICATION TO THOSE UTILITIES
WHICH MAINTAIN THE CONTINUING PROPERTY RECORDS OF SEC. 502.  FN11
310(A).  WHERE THERE ARE NO CONTINUING PROPERTY RECORDS, AS PROVIDED BY
SEC. 502, THE COMMISSION MUST IN FIXING THE TEMPORARY RATE ARRANGE FOR
AT LEAST A FIVE PER CENT RETURN ON ORIGINAL COST UNDER (A) OR THE
RETURN OF AN OPERATING INCOME UNDER (B) EQUAL TO THAT FOR THE YEAR 1935
OR A SUBSEQUENT YEAR, AS DETERMINED BY THE COMMISSION. 

APPELLEE URGES NEXT THAT THE SECTION PERMITS THE COMMISSION TO
DISREGARD PRESENT COST, DEPRECIATE ORIGINAL COST, OMIT INDIRECT AND
OVERHEAD ITEMS OF CONSTRUCTION, AND EXCLUDE ALLOWANCES FOR WORKING
CAPITAL OR GOING CONCERN VALUE.  ALTHOUGH THESE ITEMS WERE CONSIDERED
BY THE COMMISSION, THE APPELLEE CONTENDS THAT THE ORDER IS INVALID
BECAUSE SEC. 310(A) MIGHT HAVE BEEN COMPLIED WITH BY PROVIDING A RETURN
OF 5% ON THE ORIGINAL COST DEPRECIATED.  THE ARGUMENT SEEMS TO BE THAT
A STATUTE WHICH PERMITS AN UNCONSTITUTIONAL DETERMINATION IS INVALID,
EVEN THOUGH IT IS ACTUALLY APPLIED IN A CONSTITUTIONAL MANNER.  FN12 

THE COMMISSION DREW THE ORDER IN ACCORD WITH THE PRIOR RULING OF THE
MIDDLE DISTRICT COURT ON A FORMER ORDER IN THIS RATE PROCEEDING.  FN13
THE FORMER ORDER HAD ALSO FIXED TEMPORARY RATES BUT HAD NOT SET OUT THE
FINDINGS OF VALUE DEEMED ESSENTIAL BY THE COURT.  ALTHOUGH THE REVERSAL
OF THE COMMISSION'S ORDER HAD ACTUALLY TURNED ON THE FAILURE TO SHOW
THE FACTUAL BASIS FOR THE RATES, AS THE DISTRICT COURT HAD STATED THAT
COMPLIANCE WITH SMYTH V. AMES  FN14  WAS NECESSARY IN TEMPORARY RATE
MAKING, THE COMMISSION BASED THE ORDER NOW UNDER REVIEW ON EVIDENCE
REQUISITE UNDER THAT RULE.  BY TAKING THIS POSITION, IT INTERPRETS THE
STATUTE AS REQUIRING CONSIDERATION OF ELEMENTS OTHER THAN ORIGINAL COST
IN FIXING TEMPORARY RATES.  IT IS NOT SUGGESTED THAT THE COMMISSION
OMITTED CONSIDERATION OF ANY NECESSARY ELEMENT IN THE PRESENT ORDER. 
IF WE ASSUME WITH THE APPELLEE THAT THE CONSTITUTIONALITY OF A
DELEGATION OF RATE MAKING AUTHORITY IS TO BE TESTED BY WHAT A RATE
MAKING BODY MAY RIGHTFULLY DO UNDER THE DELEGATION RATHER THAN WHAT IT
DOES, APPELLEE'S CASE IS ADVANCED NOT ONE WHIT.  WE HAVE HERE AN
INTERPRETATION OF THE PENNSYLVANIA STATUTE BY THE BOARD CHARGED WITH
ITS ENFORCEMENT THAT IT MUST WEIGH ALL THE ESSENTIAL ELEMENTS OF
VALUATION REQUIRED BY OUR PAST DECISIONS. 

THERE IS NOTHING IN THE LANGUAGE OF SEC. 310(A) WHICH REQUIRES A
DIFFERENT CONSTRUCTION.  THE COMMISSION IS AUTHORIZED TO FIX TEMPORARY
RATES.  THERE IS NO REQUIREMENT AS TO HOW THE RATES ARE TO BE
DETERMINED, EXCEPT THAT THEY SHALL BE SUFFICIENT TO RETURN A GIVEN
MINIMUM - NOT LESS THAN 5% ON THE ORIGINAL COST, LESS DEPRECIATION. 
THE LANGUAGE AUTHORIZING THE FIXING OF TEMPORARY RATES IS CAST, EXCEPT
AS TO THE LIMITATION JUST REFERRED TO, IN MUCH THE SAME PATTERN AS THE
LANGUAGE OF SEC. 309 AUTHORIZING THE DETERMINATION OF PERMANENT RATES. 
THE LATTER SECTION READS: "  ...  THE COMMISSION SHALL DETERMINE THE
JUST AND REASONABLE RATES  ...  "  A DIFFERENT CONSTRUCTION WOULD RAISE
THE NOVEL AND IMPORTANT QUESTION OF THE CONSTITUTIONALITY OF A
TEMPORARY RATE, BASED SOLELY ON DEPRECIATED ORIGINAL COST, WITH
PROVISION FOR RECOUPMENT OF THE LOSS FROM INSUFFICIENT TEMPORARY
RATES.  FN15  IN THE ABSENCE OF AN AUTHORITATIVE STATE DECISION, WE ARE
RELUCTANT TO ACCEPT A CONSTRUCTION WHICH BRINGS FORWARD THAT ISSUE,
PARTICULARLY WHEN THE CASE MAY REASONABLY BE DETERMINED UPON THE
INTERPRETATION OF THE OFFICIALS OF THE STATE CHARGED WITH THE
ADMINISTRATION OF THE ACT.  FN16  THIS COURSE OBSERVES THE VERY
SALUTARY RULE THAT "THIS COURT WILL NOT DECIDE AN ISSUE OF
CONSTITUTIONALITY IF THE CASE MAY JUSTLY AND REASONABLY BE DECIDED
UNDER A CONSTRUCTION OF THE STATUTE UNDER WHICH THE ACT IS CLEARLY
CONSTITUTIONAL."  FN17 

CONFISCATION. - THERE REMAINS FOR EXAMINATION THE APPELLEE'S ARGUMENT
THAT THE DECREE OF THE DISTRICT COURT ENJOINING THE ENFORCEMENT OF THE
ORDER SHOULD BE SUSTAINED BECAUSE IT IS CONFISCATORY.  THE COMMISSION,
AS OF NOVEMBER 30, 1937, FOUND THE RATE BASE, REVENUE, EXPENSES AND
RATE, AS SET OUT BELOW.  FN18  APPELLEE URGES HERE THAT THE
COMMISSION'S FIGURES ARE ERRONEOUS IN THE FOLLOWING PARTICULARS:  (1)
THE RATE BASE SHOULD BE $5,866,081; (2) THE RATE SHOULD BE 7 1/2 PER
CENT; (3) TWO ITEMS OF EXPENSE, DISALLOWED BY THE COMMISSION SHOULD BE
ADDED TO THE OPERATING EXPENSES, (A) SOME INCREASE IN ANNUAL SALARIES
AND (B) RATE CASE EXPENSES ON BOOKS TO NOVEMBER 15, 1937; (4) ALLOWANCE
SHOULD BE MADE FOR A PROSPECTIVE LOSS OF ANNUAL PROFIT BY REASON OF THE
LOSS OF A LARGE CUSTOMER, THROUGH ABANDONMENT OF RAILWAY SERVICE BY
YORK RAILWAYS COMPANY. 

(1)  THE COMMISSION ESTIMATED THE ORIGINAL COST AS OF DECEMBER 31,
1936, AT $4,576,169.73.  THE COMPANY ESTIMATED THE ORIGINAL COST AS OF
NOVEMBER 30, 1936, EXCLUSIVE OF FINANCING CHARGES, AT $4,619,364.00 AND
ITS BOOK COST AS OF DECEMBER 31, 1936, AT $4,578,793.00.  IF, TO THE
HIGHEST OF THESE ITEMS, WE ADD $164,000 FOR WORKING CAPITAL AND
$142,851.07, REPRESENTING NET ADDITIONS TO SEPTEMBER 30, 1937, THE
AMOUNTS CLAIMED BY THE COMPANY, THE ORIGINAL COST RATE BASE IS FOUND TO
BE NOT MORE THAN $4,926,215.07. 

THE COMMISSION EXCLUDED THE COST OF FINANCING BECAUSE THERE WAS NO
EVIDENCE OF ANY ACTUAL EXPENDITURES FOR SUCH PURPOSE OR OF ANY STUDIES
OF SUCH COST.  WE FIND NO ERROR IN THIS.  FN19 THERE WAS HERE NO
FOUNDATION FOR AN ESTIMATE.  FN20  APPELLEE'S SUGGESTION THAT EVIDENCE
SUPPORTING ITS CLAIM IS FOUND IN THE CAPITALIZATION CHART OF YORK
RAILWAYS COMPANY, THE OWNER OF APPELLEE'S COMMON STOCK, IS NOT
ACCEPTED.  THIS SHOWS THE DISCOUNT, $298,825.00, PAID BY THE PARENT
COMPANY ON $2,706,000 FACE AMOUNT OF BONDS OF VARIOUS ISSUES BETWEEN
1909 AND 1925.  IT APPEARS THAT $1,027,904 OF THE PROCEEDS WAS EXPENDED
FOR CONSTRUCTION WORK OF THE YORK EDISON COMPANY, APPARENTLY APPELLEE'S
PREDECESSOR.  NOTHING IS SHOWN AS TO THE COST OF THIS MONEY TO THE
APPELLEE.  IT MAY HAVE GIVEN NOTES FOR OR BEEN CHARGED WITH THIS EXACT
AMOUNT, WITHOUT A FINANCE CHARGE.  THE FINANCING COST TO APPELLEE MAY
HAVE BEEN COVERED BY THE INTEREST RATE.    THE COMMISSION MADE NO
SPECIFIC ALLOWANCE FOR GOING CONCERN VALUE.  IT DID, HOWEVER, STATE
THAT IT HAD WEIGHED THE GOING CONCERN VALUE WITH OTHER FACTORS TO
DETERMINE FAIR VALUE.  IT GAVE PRACTICAL EFFECT TO THIS CONSIDERATION
WHEN IT FIXED FAIR VALUE SEVERAL HUNDRED THOUSAND DOLLARS IN EXCESS OF
ITS AVERAGE OF ORIGINAL AND REPRODUCTION COST, BOTH DEPRECIATED.  IN
THE COMPUTATIONS BY THE COMPANY OF ORIGINAL AND REPRODUCTION COSTS,
ALLOWANCES WERE MADE FOR THE OVERHEAD EXPENSE OF CREATING THE AGGREGATE
OF LAND, BUILDINGS, AND EQUIPMENT, MAKING UP THE UTILITY.  NO TANGIBLE
EVIDENCE OF ANY UNUSUAL SITUATION JUSTIFYING ANY DEFINITE FURTHER
ALLOWANCE APPEARS IN THE TESTIMONY OF APPELLEE'S WITNESS SEELYE.  THE
PLANT OF THE UTILITY WITHOUT THE UTILIZATION OF ITS PRODUCTION BY THE
COMMUNITY WOULD BE OF LITTLE VALUE.  EXPENDITURES TO SECURE CUSTOMERS
THROUGH ADVERTISEMENT AND SOLICITATION, AS WELL AS TO INSTALL
CONNECTIONS DO NOT APPEAR SEPARATE FROM THE ORDINARY OPERATING AND
CONSTRUCTION COSTS.  THE APPELLEE POINTS TO THE CHARACTER OF THE
TERRITORY SERVED, THE COMPANY'S ABILITY TO EARN, THE EFFICIENCY OF THE
MANAGEMENT, THE ADEQUATE AVAILABLE POWER SUPPLY AND THE EXCELLENT
CAPITAL STRUCTURE AS INDICATIVE OF A GOING CONCERN VALUE ABOVE TANGIBLE
PROPERTY PLUS OVERHEAD.  TO APPRAISE THESE ELEMENTS APART FROM AND IN
ADDITION TO REASONABLE COST FIGURES WOULD REQUIRE EVIDENCE OF A FAILURE
ON THE PART OF THE COMMISSION TO GIVE REASONABLE WEIGHT TO THESE
FACTORS.  THIS EVIDENCE IS LACKING HERE.  FN21 

FOR DEPRECIATED REPRODUCTION COST AS OF NOVEMBER 30, 1936, THE
COMMISSION ACCEPTED THE ESTIMATE OF THE COMPANY FOR DIRECT COSTS,
$3,981,347.  IT ADDED 19%, $756,456, FOR INDIRECT COSTS AND REACHED A
TOTAL OF $4,737,803.  THIS FINDING REDUCED THE INDIRECT COSTS FROM THE
24.3 PER CENT CLAIMED BY THE COMPANY.  EVIDENCE WAS INTRODUCED BEFORE
THE COMMISSION SUPPORTING EACH PERCENTAGE ESTIMATE.  THE AMOUNT OF
THESE INDIRECT COSTS LIKELY TO BE INCURRED IS TOO UNCERTAIN FOR US TO
CONCLUDE THAT THE PERCENTAGE ADOPTED IS ERRONEOUS.  FN22  WE CANNOT SEE
THAT THE FAILURE OF THE COMMISSION'S WITNESS BIERMAN TO INSPECT THE
PROPERTY MADE LESS VALUABLE HIS ESTIMATE ON THE PROPER PERCENTAGE TO BE
APPLIED FOR INDIRECT COSTS.  THESE INDIRECT COSTS ARE OF THE CHARACTER
OF INTEREST, SUPERVISION, COST OF FINANCING, TAXES AND LEGAL EXPENSE. 

THE UTILITY STATES THAT THE COMMISSION, IN FIXING THE REPRODUCTION
COST, ERRED BY REFUSING TO CONSIDER THE EFFECT OF A CLAIMED INCREASE OF
PRICES.  THE COMMISSION, ON NOVEMBER 30, 1937, FIXED REPRODUCTION COST
UPON A COMPUTATION BASED BY THE UTILITY UPON PRICES AS OF NOVEMBER 30,
1936.  THIS SHOWED A GROSS COST OF $5,572,134, DEPRECIATED AND REDUCED
BY THE COMMISSION, AS EXPLAINED IN THE PRECEDING PARAGRAPH, TO
$4,737,803.  THE UTILITY PRESENTED A FURTHER COMPUTATION, SHOWING AS OF
MAY 31, 1937, THAT INCREASED PRICES, DUE TO A RISING LEVEL, WOULD
INCREASE THE GROSS COST TO $6,019,832.  THE ARGUMENT IS THAT THE LATER
ESTIMATE SHOULD HAVE BEEN CONSIDERED.  FN23 PROPORTIONALLY REDUCED TO
ACCORD WITH THE ACTION OF THE COMMISSION, THIS LATTER FIGURE WOULD
BECOME $5,118,465.  IF TO THIS HIGHER REPRODUCTION COST WE ADD WORKING
CAPITAL, THERE APPEARS A REPRODUCTION COST DEPRECIATED FIGURE OF
$5,282,465. 

IT IS FURTHERMORE TO BE OBSERVED THAT THE COMMISSION'S FIGURES DO NOT
DIFFER FAR AS TO FAIR VALUE, FROM THE ESTIMATE OF AN IMPORTANT WITNESS
FOR THE UTILITY, MR. SEELYE, WHO TESTIFIED ON MARCH 12, 1937, THAT THE
FAIR VALUE WAS NOT LESS THAN $5,500,000 AND SAID LATER IN ANSWER TO THE
COMMISSIONER'S QUESTION THAT THE FAIR VALUE, IN HIS OPINION, WAS
$5,500,000.  THIS ESTIMATE WAS REITERATED ON DECEMBER 20, 1937, IN THE
AFFIDAVITS OF MR. SEELYE AND MR. WAYNE, THE PRESIDENT OF THE COMPANY,
IN SUPPORT OF THE MOTION FOR TEMPORARY INJUNCTION. 

FOR THE PURPOSE OF PASSING UPON THE ISSUE OF CONFISCATION IN THE
TEMPORARY RATES, WE SHALL ACCEPT $5,500,000 AS THE FAIR VALUE OF THE
PROPERTY AS OF NOVEMBER 30, 1937. 

(2)  THE RATE OF RETURN WAS FIXED BY THE COMMISSION AT SIX PER CENT.
WITNESSES FOR THE UTILITY BROUGHT OUT FACTS DEEMED APPLICABLE IN THE
DETERMINATION OF A PROPER RATE OF RETURN ON THE FAIR VALUE OF THE
PROPERTY.  THEIR EVIDENCE TOOK COGNIZANCE OF THE YIELD OF BONDS,
PREFERRED AND COMMON STOCKS OF SELECTED COMPARABLE UTILITIES, THE
STAGNANT MARKET FOR NEW ISSUES, PREVAILING COST OF MONEY, THE
IMPLICATIONS OF THE POSSIBLE SUBSTITUTION OF SOME GOVERNMENTALLY
OPERATED OR FINANCED UTILITIES FOR THOSE PRIVATELY OWNED AND THE
DANGERS OF A FIXED SCHEDULE OF RATES IN THE FACE OF POSSIBLE
INFLATION.  FROM THESE FACTORS THEY DEDUCED THAT A PROPER RATE OF
RETURN WOULD BE FROM 7.8 PER CENT TO 8 PER CENT.  AN ACCOUNTING EXPERT
OF THE COMMISSION COUNTERED WITH TABLES SHOWING YIELDS OF BONDS OF
UTILITIES; THE YIELD TO MATURITY OF PENNSYLVANIA PUBLIC UTILITY
SECURITIES, APPROVED BY THE COMMISSION BETWEEN JULY 1, 1933, AND MAY 7,
1937, LONG TERM AND ACTUALLY SOLD FOR CASH TO NON-AFFILIATED INTERESTS;
YIELD OF PENNSYLVANIA ELECTRIC UTILITIES; FINANCIAL AND OPERATING
STATISTICS OF PENNSYLVANIA ELECTRIC UTILITIES; MONEY RATES, AND OTHER
MATERIAL INFORMATION.  HE CONCLUDED 5.5 PER CENT WAS A REASONABLE RATE
OF RETURN. 

IT MUST BE RECOGNIZED THAT EACH UTILITY PRESENTS AN INDIVIDUAL
PROBLEM.  FN24  THE ANSWER DOES NOT LIE ALONE IN AVERAGE YIELDS OF
SEEMINGLY COMPARABLE SECURITIES OR EVEN IN DEDUCTIONS DRAWN FROM RECENT
SALES OF ISSUES AUTHORIZED BY THIS SAME COMMISSION.  YIELDS OF
PREFERRED AND COMMON STOCKS ARE TO BE CONSIDERED, AS WELL AS THOSE OF
THE FUNDED DEBT.  WHEN BONDS AND PREFERRED STOCKS OF WELL SEASONED
COMPANIES CAN BE FLOATED AT LOW RATES, THE ALLOWANCE OF AN OVER ALL
RATE RETURN OF A MODEST PERCENTAGE WILL BRING HANDSOME YIELDS TO THE
COMMON STOCK.  CERTAINLY THE YIELDS OF THE EQUITY ISSUES MUST BE LARGER
THAN THAT FOR THE UNDERLYING SECURITIES.  IN THIS INSTANCE, THE UTILITY
OPERATES IN A STABLE COMMUNITY, ACCUSTOMED TO THE USE OF ELECTRICITY
AND CLOSE TO THE CAPITAL MARKETS, WITH FUNDS READILY AVAILABLE FOR
SECURE INVESTMENT.  LONG OPERATION AND ADEQUATE RECORDS MAKE FORECASTS
OF NET OPERATING REVENUES FAIRLY CERTAIN.  UNDER SUCH CIRCUMSTANCES A
SIX PER CENT RETURN AFTER ALL ALLOWABLE CHARGES CANNOT BE
CONFISCATORY. 

(3) AND (4).  THE UTILITY URGES THAT TWO ITEMS OF EXPENSE AND A
PROSPECTIVE LOSS SHOULD BE ADDED TO THE OPERATING EXPENSES, ALLOWED BY
THE COMMISSION, OF $1,382,829.  THE MOST IMPORTANT OF THESE ITEMS IS
THE RATE CASE EXPENSES.  THE COMPANY BY ITS EXHIBIT 21 SHOWS THESE
INCURRED TO NOVEMBER 15, 1937, TO BE $178,374.50.  THE COMMISSION FROM
EXHIBIT 23 FOUND THEM TO BE $127,935 FOR THE TWELVE MONTHS ENDING
SEPTEMBER 30, 1937.  THE DIFFERENCE PROBABLY COMES FROM THE EXPENSES
BEFORE AND AFTER THE PERIOD CONSIDERED BY THE COMMISSION.  WE ASSUME
THE HIGHER FIGURES TO BE CORRECT.  AS THE COMMISSION CONCLUDED THAT THE
PRIOR RATES OF THE COMPANY WERE OBVIOUSLY EXCESSIVE, IT ALLOWED NOTHING
FOR EXPENSE IN DEFENDING THEM.  CONSEQUENTLY THERE IS NO DISCUSSION OF
THE REASONABLENESS OF THE AMOUNT OF THE COMPANY'S CHARGE AND WE ACCEPT
THEM AS REASONABLE.  EVEN WHERE THE RATES IN EFFECT ARE EXCESSIVE, ON A
PROCEEDING BY A COMMISSION TO DETERMINE REASONABLENESS, WE ARE OF THE
VIEW THAT THE UTILITY SHOULD BE ALLOWED ITS FAIR AND PROPER EXPENSES
FOR PRESENTING ITS SIDE TO THE COMMISSION.  WE DO NOT REFER TO EXPENSE
OF LITIGATION IN THE COURTS.  "A DIFFERENT CASE WOULD BE HERE IF THE
COMPANY'S COMPLAINT HAD BEEN UNFOUNDED OR IF THE COST OF THE PROCEEDING
HAD BEEN SWOLLEN BY UNTENABLE OBJECTIONS."  FN25 

IN THE ALLOWANCE OF THESE EXPENSES, THE PERIOD OVER WHICH THEY ARE TO
BE AMORTIZED WILL DEPEND UPON THE CHARACTER OF SERVICES RECEIVED OR
DISBURSEMENTS MADE.  THERE COULD RARELY BE AN ANTICIPATION OF ANNUALLY
RECURRING CHARGES FOR RATE REGULATION.  UNDER THE CIRCUMSTANCES HERE
PRESENTED WHERE FULL STATISTICS ON INVESTMENT, INVENTORY AND LABOR
REQUIREMENTS HAVE BEEN MADE WHICH, AS CUMULATED, WILL FORM LARGELY THE
BASIS OF ALL FUTURE NEGOTIATIONS, WE ARE OF THE OPINION THAT
AMORTIZATION OVER A TEN YEAR PERIOD IS REASONABLE.  FN26  AS SUCH AN
ADJUSTMENT PRODUCES AN ESTIMATED RETURN VERY CLOSE TO THE REASONABLE
RATE, EVEN WITH THE ADDITION TO THE OPERATING EXPENSES OF THE OTHER
ITEMS OF INCREASED SALARIES, $20,593, AND PROSPECTIVE LOSS OF ANNUAL
PROFIT, $15,089, WE DO NOT ENTER INTO A DISCUSSION OF THEM.  EXPERIENCE
WILL ADD ITS WEIGHT TO THE OTHER EVIDENCE ON FURTHER HEARING.  THE NOTE
BELOW SHOWS THE CALCULATION.  FN27 

AT BEST, THESE ESTIMATES ARE PROPHECIES OF EXPECTED RETURNS.  THE
INCALCULABLE FACTORS OF BUSINESS ACTIVITY, UNANTICIPATED DEMAND OR
FORBEARANCE, SUBSTITUTION AND OTHER VARIABLES LEAD US TO
APPROXIMATIONS.  WE ARE SATISFIED THE REDUCTION REQUIRED IS NOT SHOWN
TO BE CONFISCATORY.  REVERSED. 

FN1  EDISON LIGHT & POWER CO. V. DRISCOLL, 21 F.SUPP.  1. 

FN2  EDISON LIGHT & POWER CO. V. DRISCOLL, 25 F.SUPP.  192. 

FN3  JUDICIAL CODE, SEC. 24(1), AS AMENDED BY ACT OF MAY 14, 1934, C.
283, 48 STAT. 775. 

FN4  OKLAHOMA GAS CO. V. RUSSELL, 261 U.S. 290, 292; HERKNESS V.
IRION, 278 U.S. 92, 93. 

FN5  SEC. 1111, P.L. 1053, PURDON'S PA. STAT. ANN., 1938 SUPP., TITLE
66, SEC. 1441:  "EXCLUSIVE JURISDICTION OF DAUPHIN COUNTY COURT TO HEAR
INJUNCTIONS.  - NO INJUNCTION SHALL ISSUE MODIFYING, SUSPENDING,
STAYING, OR ANNULING ANY ORDER OF THE COMMISSION, OR OF A COMMISSIONER,
EXCEPT IN A PROCEEDING QUESTIONING THE JURISDICTION OF THE COMMISSION,
AND THEN ONLY AFTER CAUSE SHOWN UPON A HEARING.  THE COURT OF COMMON
PLEAS OF DAUPHIN COUNTY IS HEREBY CLOTHED WITH EXCLUSIVE JURISDICTION
THROUGHOUT THE COMMONWEALTH, OF ALL PROCEEDINGS FOR SUCH INJUNCTIONS,
SUBJECT TO AN APPEAL TO THE SUPERIOR COURT AS AFORESAID." 

FN6  MOUNTAIN STATES CO. V. COMM'N, 299 U.S. 167, 170; CORPORATION
COMM'N V. CARY, 296 U.S. 452. 

FN7  SEC. 1103, P.L. 1053, PURDON'S PA. STAT. ANN., 1938 SUPP., TITLE
66, SEC. 1433. 

FN8  P.L. 1053, PURDON'S PA. STAT. ANN., 1938 SUPP., TITLE 66, SEC.
1150. 

FN9  "TEMPORARY RATES.  - (A)  THE COMMISSION MAY, IN ANY PROCEEDING
INVOLVING THE RATES OF A PUBLIC UTILITY BROUGHT EITHER UPON ITS OWN
MOTION OR UPON COMPLAINT, AFTER REASONABLE NOTICE AND HEARING, IF IT BE
OF OPINION THAT THE PUBLIC INTEREST SO REQUIRES, IMMEDIATELY FIX,
DETERMINE, AND PRESCRIBE TEMPORARY RATES TO BE CHARGED BY SUCH PUBLIC
UTILITY, PENDING THE FINAL DETERMINATION OF SUCH RATE PROCEEDING.  SUCH
TEMPORARY RATES, SO FIXED, DETERMINED, AND PRESCRIBED, SHALL BE
SUFFICIENT TO PROVIDE A RETURN OF NOT LESS THAN FIVE PER CENTUM UPON
THE ORIGINAL COST, LESS ACCRUED DEPRECIATION, OF THE PHYSICAL PROPERTY
(WHEN FIRST DEVOTED TO PUBLIC USE) OF SUCH PUBLIC UTILITY, USED AND
USEFUL IN THE PUBLIC SERVICE, AND IF THE DULY VERIFIED REPORTS OF SUCH
PUBLIC UTILITY TO THE COMMISSION DO NOT SHOW SUCH ORIGINAL COST, LESS
ACCRUED DEPRECIATION, OF SUCH PROPERTY, THE COMMISSION MAY ESTIMATE
SUCH COST LESS DEPRECIATION AND FIX, DETERMINE, AND PRESCRIBE RATES AS
HEREINBEFORE PROVIDED. 

"(B)  IF ANY PUBLIC UTILITY DOES NOT HAVE CONTINUING PROPERTY
RECORDS, KEPT IN THE MANNER PRESCRIBED BY THE COMMISSION, UNDER THE
PROVISIONS OF SECTION FIVE HUNDRED TWO OF THIS ACT, THEN THE
COMMISSION, AFTER REASONABLE NOTICE AND HEARING, MAY ESTABLISH
TEMPORARY RATES WHICH SHALL BE SUFFICIENT TO PROVIDE A RETURN OF NOT
LESS THAN AN AMOUNT EQUAL TO THE OPERATING INCOME FOR THE YEAR ENDING
DECEMBER THIRTY-FIRST, ONE THOUSAND NINE HUNDRED THIRTY-FIVE, OR SUCH
OTHER SUBSEQUENT YEAR AS THE COMMISSION MAY DEEM PROPER, TO BE
DETERMINED ON THE BASIS OF DATA APPEARING IN THE ANNUAL REPORT OF SUCH
PUBLIC UTILITY TO THE COMMISSION FOR THE YEAR ONE THOUSAND NINE HUNDRED
THIRTY-FIVE, OR SUCH OTHER SUBSEQUENT YEAR AS THE COMMISSION MAY DEEM
PROPER, PLUS OR MINUS SUCH RETURN AS THE COMMISSION MAY PRESCRIBE FROM
TIME TO TIME UPON SUCH NET CHANGES OF THE PHYSICAL PROPERTY AS ARE
REPORTED TO AND APPROVED FOR RATE-MAKING PURPOSES BY THE COMMISSION. 
IN DETERMINING THE NET CHANGES OF THE PHYSICAL PROPERTY, THE COMMISSION
MAY, IN ITS DISCRETION, DEDUCT FROM GROSS ADDITIONS TO SUCH PHYSICAL
PROPERTY THE AMOUNT CHARGED TO OPERATING EXPENSES FOR DEPRECIATION OR,
IN LIEU THEREOF, IT MAY DETERMINE SUCH NET CHANGES BY DEDUCTING
RETIREMENTS FROM THE GROSS ADDITIONS:  PROVIDED, THAT THE COMMISSION,
IN DETERMINING THE BASIS FOR TEMPORARY RATES, MAY MAKE SUCH ADJUSTMENTS
IN THE ANNUAL REPORT DATA AS MAY, IN THE JUDGMENT OF THE COMMISSION, BE
NECESSARY AND PROPER." 

FN10  EDISON LIGHT & POWER CO. V. DRISCOLL, 25 F.SUPP.  192. 

FN11  P.L. 1053, PURDON'S PA. STAT. ANN., 1938 SUPP., TITLE 66, SEC.
1212. 

"CONTINUING PROPERTY RECORDS.  - THE COMMISSION MAY REQUIRE ANY
PUBLIC UTILITY TO ESTABLISH, PROVIDE, AND MAINTAIN AS A PART OF ITS
SYSTEM OF ACCOUNTS, CONTINUING PROPERTY RECORDS, INCLUDING A LIST OR
INVENTORY OF ALL THE UNITS OF TANGIBLE PROPERTY USED OR USEFUL IN THE
PUBLIC SERVICE, SHOWING THE CURRENT LOCATION OF SUCH PROPERTY UNITS BY
DEFINITE REFERENCE TO THE SPECIFIC LAND PARCELS UPON WHICH SUCH UNITS
ARE LOCATED OR STORED; AND THE COMMISSION MAY REQUIRE ANY PUBLIC
UTILITY TO KEEP ACCOUNTS AND RECORDS IN SUCH MANNER AS TO SHOW,
CURRENTLY, THE ORIGINAL COST OF SUCH PROPERTY WHEN FIRST DEVOTED TO THE
PUBLIC SERVICE, AND THE RESERVE ACCUMULATED TO PROVIDE FOR THE
DEPRECIATION THEREOF."    FN12  CF. PANAMA REFINING CO. V. RYAN, 293
U.S. 388, 420; WUCHTER V. PIZZUTTI, 276 U.S. 13, 24; PEOPLE V. KLINCK
PACKING CO., 214 N.Y. 121, 138; 108 N.E. 278; MONTANA COMPANY V. ST.
LOUIS MINING CO., 152 U.S. 160, 170.  BUT SEE HATCH V. REARDON, 204
U.S. 152, 160; TYLER V. JUDGES, 179 U.S. 405, 410; JACOBSON V.
MASSACHUSETTS, 197 U.S. 11, 37; LIEBERMAN V. VAN DE CARR, 199 U.S. 552,
562; HOME TELEPHONE CO. V. LOS ANGELES, 211 U.S. 265, 278. 

FN13  EDISON LIGHT & POWER CO. V. DRISCOLL, 21 F.SUPP.  1.    FN14
169 U.S. 466. 

FN15  "(E)  TEMPORARY RATES SO FIXED, DETERMINED, AND PRESCRIBED
UNDER THIS SECTION SHALL BE EFFECTIVE UNTIL THE FINAL DETERMINATION OF
THE RATE PROCEEDING, UNLESS TERMINATED SOONER BY THE COMMISSION.  IN
EVERY PROCEEDING IN WHICH TEMPORARY RATES ARE FIXED, DETERMINED, AND
PRESCRIBED UNDER THIS SECTION, THE COMMISSION SHALL CONSIDER THE EFFECT
OF SUCH RATES IN FIXING, DETERMINING, AND PRESCRIBING RATES TO BE
THEREAFTER DEMANDED OR RECEIVED BY SUCH PUBLIC UTILITY ON FINAL
DETERMINATION OF THE RATE PROCEEDING.  IF, UPON FINAL DISPOSITION OF
THE ISSUES INVOLVED IN SUCH PROCEEDING, THE RATES AS FINALLY
DETERMINED, ARE IN EXCESS OF THE RATES PRESCRIBED IN SUCH TEMPORARY
ORDER, THEN SUCH PUBLIC UTILITY SHALL BE PERMITTED TO AMORTIZE AND
RECOVER, BY MEANS OF A TEMPORARY INCREASE OVER AND ABOVE THE RATES
FINALLY DETERMINED, SUCH SUM AS SHALL REPRESENT THE DIFFERENCE BETWEEN
THE GROSS INCOME OBTAINED FROM THE RATES PRESCRIBED IN SUCH TEMPORARY
ORDER AND THE GROSS INCOME WHICH WOULD HAVE BEEN OBTAINED UNDER THE
RATES FINALLY DETERMINED IF APPLIED DURING THE PERIOD SUCH TEMPORARY
ORDER WAS IN EFFECT."  CF. PRENDERGAST V. NEW YORK TELEPHONE CO., 262
U.S. 43; BRONX GAS & ELECTRIC CO. V. MALTBIE, 271 N.Y. 364; 3 N.E.2D
512. 

FN16  FOX V. STANDARD OIL CO., 294 U.S. 87, 97; UNION INS. CO. V.
HOGE, 21 HOW.  35, 66. 

FN17  THOMPSON V. CONSOLIDATED GAS CORP., 300 U.S. 55, 75-76, AND
CASES CITED; CF. BLODGETT V. HOLDEN, 275 U.S. 142, 148; FEDERAL TRADE
COMM'N V. AMERICAN TOBACCO CO., 264 U.S. 298, 307; TEXAS V. EASTERN
TEXAS R. CO., 258 U.S. 204, 217. 

FN18 

RATE BASE OR FAIR 

VALUE OF PROPERTY.........................................
$5,250,000.00 

RATE OF RETURN 6%. 

REQUIRED RETURN...........................................
315,000.00 

REVENUE AFTER REDUCTION..................... $1,767,329.00 

OPERATING EXPENSES............ $1,033,898.00 

TAXES.........................  206,400.00 

ANNUAL DEPRECIATION...........    142,531.00  1,382,829.00 

ESTIMATED RETURN..........................................
384,500.00 

FN19  WABASH VALLEY ELEC.  CO. V. YOUNG, 287 U.S. 488, 500; GALVESTON
ELECTRIC CO. V. GALVESTON, 258 U.S. 388, 397. 

FN20  CF. DAYTON P. & L. CO. V. COMM'N, 292 U.S. 290, 309-10; LOS
ANGELES GAS CO. V. RAILROAD COMM'N, 289 U.S. 287, 310. 

FN21  DENVER STOCK YARD CO. V. UNITED STATES, 304 U.S. 470, 478; ST.
JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 62.  CF. DAYTON
P. & L. CO. V. COMM'N, 292 U.S. 290, 308; ST. JOSEPH STOCK YARDS CO. V.
UNITED STATES, 11 F.SUPP.  322, 334; DES MOINES GAS CO. V. DES MOINES,
238 U.S. 153; MCCARDLE V. INDIANAPOLIS CO., 272 U.S. 400, 413. 

FN22 DAYTON P. & L. CO. V. COMM'N, 292 U.S. 290, 311. 

FN23  MCCART V. INDIANAPOLIS WATER CO., 302 U.S. 419. 

FN24  UNITED RAILWAYS V. WEST, 280 U.S. 234, 249; WILLCOX V.
CONSOLIDATED GAS CO., 212 U.S. 19, 48; BLUEFIELD CO. V. PUBLIC SERVICE
COMM'N, 262 U.S. 679, 692; KNOXVILLE V. WATER CO., 212 U.S. 1, 17. 

FN25  WEST OHIO GAS CO. V. COMM'N (NO. 1), 294 U.S. 63, 74; SEE
WABASH VALLEY ELEC.  CO. V. YOUNG, 287 U.S. 488, 500. 

FN26  WABASH VALLEY ELEC.  CO. V. YOUNG, 287 U.S. 488, 500; WEST OHIO
GAS CO. V. COMM'N (NO. 1), 294 U.S. 63, 74. 

FN27  COMPARE WITH THE COMPUTATION OF THE COMMISSION, NOTE 18. 

RATE BASE OR FAIR 

VALUE OF PROPERTY.........................................
$5,500,000.00 

RATE OF RETURN 6%. 

REQUIRED RETURN...........................................
330,000.00 

REVENUE AFTER REDUCTION..................... $1,767,329.00 

OPERATING EXPENSES ........... $1,033,898.00 

TAXES.........................    206,400.00 

ANNUAL DEPRECIATION...........    142,531.00 

RATE EXPENSE, 

10-YEAR AMORTIZATION..........     17,838.00 

SALARY INCREASE...............     20,593.00 

PROSPECTIVE LOSS..............     15,089.00  1,436,349.00 

ESTIMATED RETURN..........................................
330,980.00 

MR. JUSTICE FRANKFURTER, CONCURRING. 

THE DECREE BELOW WAS CLEARLY WRONG.  BUT IN REVERSING IT, THE COURT'S
OPINION APPEARS TO GIVE NEW VITALITY NEEDLESSLY TO THE MISCHIEVOUS
FORMULA FOR FIXING UTILITY RATES IN SMYTH V. AMES, 169 U.S. 466.  THE
FORCE OF REASON, CONFIRMED BY EVENTS, HAS GRADUALLY BEEN RENDERING THAT
FORMULA MORIBUND BY REVEALING IT TO BE USELESS AS A GUIDE FOR
ADJUDICATION.  EXPERIENCE HAS MADE IT OVERWHELMINGLY CLEAR THAT SMYTH
V. AMES AND THE USES TO WHICH IT HAS BEEN PUT REPRESENTED AN ATTEMPT TO
ERECT TEMPORARY FACTS INTO LEGAL ABSOLUTES.  THE DETERMINATION OF
UTILITY RATES - WHAT MAY FAIRLY BE EXACTED FROM THE PUBLIC AND WHAT IS
ADEQUATE TO ENLIST ENTERPRISE - DOES NOT PRESENT QUESTIONS OF AN
ESSENTIALLY LEGAL NATURE IN THE SENSE THAT LEGAL EDUCATION AND LAWYERS'
LEARNING AFFORD PECULIAR COMPETENCE FOR THEIR ADJUSTMENT.  THESE ARE
MATTERS FOR THE APPLICATION OF WHATEVER KNOWLEDGE ECONOMICS AND FINANCE
MAY BRING TO THE PRACTICALITIES OF BUSINESS ENTERPRISE.  THE ONLY
RELEVANT FUNCTION OF LAW IN DEALING WITH THIS INTERSECTION OF
GOVERNMENT AND ENTERPRISE IS TO SECURE OBSERVANCE OF THOSE PROCEDURAL
SAFEGUARDS IN THE EXERCISE OF LEGISLATIVE POWERS WHICH ARE THE HISTORIC
FOUNDATIONS OF DUE PROCESS. 

MR. JUSTICE BRADLEY NEARLY FIFTY YEARS AGO MADE IT CLEAR THAT THE
REAL ISSUE IS WHETHER COURTS OR COMMISSIONS AND LEGISLATURES ARE THE
ULTIMATE ARBITERS OF UTILITY RATES, (DISSENTING, IN CHICAGO, M. & ST.
P. RY. CO. V. MINNESOTA, 134 U.S. 418, 461).  WHATEVER MAY BE THOUGHT
OF THE WISDOM OF A BROADER JUDICIAL ROLE IN THE CONTROVERSIES BETWEEN
PUBLIC UTILITIES AND THE PUBLIC, THERE CAN BE NO DOUBT THAT THE
TENDENCY, FOR A TIME AT LEAST, TO DRAW FIXED RULES OF LAW OUT OF SMYTH
V. AMES HAS MET THE REBUFF OF FACTS.  AT LEAST ONE IMPORTANT STATE HAS
FOR DECADES GONE ON ITS WAY UNMINDFUL OF SMYTH V. AMES, AND OTHER
STATES HAVE BY VARIOUS PROPOSALS SOUGHT TO ESCAPE THE FOG INTO WHICH
SPECULATIONS BASED ON SMYTH V. AMES HAVE ENVELOPED THE PRACTICAL TASK
OF ADMINISTERING SYSTEMS OF UTILITY REGULATION. 

SMYTH V. AMES SHOULD CERTAINLY NOT BE INVOKED WHEN IT IS NOT
NECESSARY TO DO SO.  THE STATUTE UNDER WHICH THE PRESENT CASE AROSE
REPRESENTS AN EFFORT TO ESCAPE SMYTH V. AMES AT LEAST AS TO TEMPORARY
RATES.  IT IS THE RESULT OF A CONSCIENTIOUS AND INFORMED ENDEAVOR TO
MEET DIFFICULTIES ENGENDERED BY LEGAL DOCTRINES WHICH HAVE BEEN WIDELY
REJECTED BY THE GREAT WEIGHT OF ECONOMIC OPINION,  FN1  BY
AUTHORITATIVE LEGISLATIVE INVESTIGATIONS,  FN2  BY UTILITY COMMISSIONS
THROUGHOUT THE COUNTRY,  FN3  AND BY IMPRESSIVE JUDICIAL DISSENTS.  FN4
AS A RESULT OF THIS LONG PROCESS OF EXPERIENCE AND REFLECTION, THE TWO
STATES IN WHICH UTILITIES PLAY THE BIGGEST FINANCIAL PART - NEW YORK
AND PENNSYLVANIA - HAVE EVOLVED THE SO-CALLED RECOUPMENT SCHEME FOR
TEMPORARY RATE-FIXING (THEREBY AVOIDING SOME OF THE MOST WASTEFUL
ASPECTS OF RATE LITIGATION) AS A FAIR MEANS OF ACCOMMODATING PUBLIC AND
PRIVATE INTERESTS.  IT IS A CAREFULLY GUARDED DEVICE FOR SECURING "A
JUDGMENT FROM EXPERIENCE AS AGAINST A JUDGMENT FROM SPECULATION,"
TANNER V. LITTLE, 240 U.S. 369, 386, IN DEALING WITH A PROBLEM OF SUCH
ELUSIVE ECONOMIC COMPLEXITY AS THE DETERMINATION OF WHAT RETURN WILL BE
SUFFICIENT TO ATTRACT CAPITAL IN THE SPECIAL SETTING OF A PARTICULAR
INDUSTRY AND AT THE SAME TIME BE FAIR TO THE PUBLIC DEPENDENT ON SUCH
ENTERPRISE. 

THAT THIS COURT SHOULD NOT "DECIDE AN ISSUE OF CONSTITUTIONALITY IF
THE CASE MAY JUSTLY AND REASONABLY BE DECIDED UNDER A CONSTRUCTION OF
THE STATUTE UNDER WHICH THE ACT IS CLEARLY CONSTITUTIONAL" IS, AS AN
ABSTRACT PROPOSITION, BASIC TO OUR JUDICIAL OBLIGATION.  BUT THIS IS
NOT A FORMAL DOCTRINE OF SELF-RESTRAINT.  ITS RATIONALE IS AVOIDANCE OF
CONFLICT WITH THE LEGISLATURE.  THE OPINION FROM WHICH THE PRECEDING
QUOTATION IS TAKEN AND THE DECISIONS TO WHICH IT REFERS ARE ALL CASES
IN WHICH CONSTITUTIONALITY WAS IN OBVIOUS JEOPARDY.  IT IS ONE THING TO
AVOID UNCONSTITUTIONALITY EVEN AT THE COST OF A TORTURED STATUTORY
CONSTRUCTION.  IT IS QUITE ANOTHER TO RECOGNIZE THE VALIDITY OF A
STATUTE DIRECTED EXPRESSLY TO THE SITUATION IN HAND AND SO EMPLOYED BY
THE STATE AUTHORITIES, WHEN CONSTITUTIONALITY OF THAT STATUTE IS AS
INCONTESTABLY CLEAR AS THE DECISION OF THE NEW YORK COURT OF APPEALS
HAS DEMONSTRATED IT TO BE IN SUSTAINING THE SISTER STATUTE OF THE
PENNSYLVANIA ACT, IN THE MATTER OF BRONX GAS & ELECTRIC CO. V. MALTBIE,
271 N.Y. 364; 3 N.E.2D 512.  THE COURT'S OPINION IN THE PRESENT CASE
DOES NOT AVOID ISSUES OF CONSTITUTIONALITY.  IT ACCEPTS THE MUCH MORE
DUBIOUS CONSTITUTIONAL DOCTRINES OF SMYTH V. AMES AND ITS SUCCESSORS TO
SOLVE THE VERY EASY CONSTITUTIONAL ISSUES RAISED BY THE PENNSYLVANIA
ACT. 

FN1  SEE 2 BONBRIGHT, THE VALUATION OF PROPERTY, 1081-1086, 1094
1102; 3A SHARFMAN, THE INTERSTATE COMMERCE COMMISSION, 121-137. 

FN2  N.Y. STATE COMMISSION ON REVISION OF THE PUBLIC SERVICE
COMMISSION LAW, REPORT OF COMMISSIONERS, PASSIM (1930). 

FN3  PROCEEDINGS OF THE FORTY-SEVENTH ANNUAL CONVENTION OF THE
NATIONAL ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS, 232 ET
SEQ.; PROCEEDINGS OF THE FORTY-EIGHTH ANNUAL CONVENTION OF THE NATIONAL
ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS, 115 ET SEQ., 289
ET SEQ.; PROCEEDINGS OF THE FORTY-NINTH ANNUAL CONVENTION OF THE
NATIONAL ASSOCIATION OF RAILROAD AND UTILITIES COMMISSIONERS, 159 ET
SEQ. 

FN4  SEE, E.G., BRANDEIS, J., CONCURRING, IN MISSOURI EX REL.
SOUTHWESTERN BELL TELEPHONE CO. V. PUBLIC SERVICE COMM'N, 262 U.S. 276,
289, AND BIBLIOGRAPHY THEREIN CONTAINED. 

MR. JUSTICE BLACK CONCURS IN THE ABOVE VIEWS. 
..END :
























ROCHESTER TEL. CORP. V. U.S., 307 U.S. 125 


NO. 481.  ARGUED MARCH 7, 1939.  - DECIDED APRIL 17, 1939.  - 23
F.SUPP.  634, AFFIRMED. 


1.  FACTORS INVOLVED IN REVIEWABILITY VEL NON OF ORDERS OF
ADMINISTRATIVE BODIES SUCH AS THE INTERSTATE COMMERCE COMMISSION AND
THE FEDERAL COMMUNICATIONS COMMISSION ARE ANALYZED AND THE GOVERNING
PRINCIPLES STATED.  PP. 129 ET SEQ. 

2.  ANY DISTINCTION BETWEEN "NEGATIVE" AND "AFFIRMATIVE" ORDERS, AS A
TOUCHSTONE OF JURISDICTION TO REVIEW COMMISSION ORDERS, SERVES NO
USEFUL PURPOSE, AND IN SO FAR AS EARLIER DECISIONS HAVE BEEN CONTROLLED
BY THIS DISTINCTION, THEY CAN NO LONGER BE GUIDING.  P. 143. 

3.  AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION DETERMINING THE
STATUS OF A TELEPHONE COMPANY AS ONE SUBJECT TO JURISDICTION UNDER SEC.
2(B) OF THE COMMUNICATIONS ACT OF 1934, BECAUSE OF ITS CONTROL BY
ANOTHER, AND THEREFORE BOUND BY EARLIER GENERAL ORDERS REQUIRING ALL
TELEPHONE CARRIERS SO SUBJECT TO FILE SCHEDULES OF CHARGES, COPIES OF
CONTRACTS, AND OTHER INFORMATION, HELD REVIEWABLE ON QUESTIONS OF LAW
UNDER THE URGENT DEFICIENCIES ACT OF OCT. 22, 1913, AS EXTENDED TO THE
COMMUNICATIONS ACT.  P. 143. 

4.  A FINDING OF THE FEDERAL COMMUNICATIONS COMMISSION THAT A
TELEPHONE COMPANY, ENGAGED IN INTERSTATE COMMERCE SOLELY THROUGH
PHYSICAL CONNECTION WITH THE FACILITIES OF ANOTHER, WAS UNDER THE
OTHER'S CONTROL WITHIN THE MEANING OF SEC. 2(B) OF THE COMMUNICATIONS
ACT OF 1934,  - HELD JUSTIFIED BY THE FACTS BEFORE THE COMMISSION
CONCERNING THE RELATIONS BETWEEN THE TWO COMPANIES.  P. 144. 

THE EXISTENCE OF SUCH "CONTROL" IS AN ISSUE OF FACT TO BE DETERMINED
BY THE COMMISSION BY THE SPECIAL CIRCUMSTANCES OF EACH CASE AND NOT BY
ARTIFICIAL TESTS. 

ROCHESTER TELEPHONE CORP. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DISTRICT COURT OF THREE JUDGES DISMISSING ON THE MERITS
A BILL TO SET ASIDE AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL, UNDER SEC. 238 OF THE JUDICIAL CODE AS AMENDED (28
U.S.C. SEC. 345), FROM A FINAL DECREE BY A DISTRICT COURT OF THREE
JUDGES, UNDER THE URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913(28 U.S.C.
SECS. 45, 47A) AS EXTENDED BY SEC. 402(A) OF THE FEDERAL COMMUNICATIONS
ACT (47 U.S.C. SEC. 402(A)), DISMISSING ON THE MERITS A BILL TO REVIEW
AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION. 

AT THE OUTSET A CHALLENGE TO THE JURISDICTION OF THE DISTRICT COURT
CONFRONTS US.  IT INVOLVES THOSE PROBLEMS OF ADMINISTRATIVE LAW WHICH
ARE IMPLIED BY THE DOCTRINE OF "NEGATIVE ORDERS."  INASMUCH AS THIS
PHRASE IS SHORTHAND FOR A VARIETY OF SITUATIONS, SHARP HEED MUST BE
GIVEN TO THE PRECISE CIRCUMSTANCES - INTER ALIA, THE STATUTORY
PROVISIONS FOR REVIEW, THE TERMS OF THE CONTESTED ORDER, THE GROUNDS OF
OBJECTION TO IT - WHICH IN THIS AND OTHER CASES HAVE INVOKED THE
DOCTRINE. 

CERTAIN EXCEPTIONS NOT HERE MATERIAL, THE COMMUNICATIONS COMMISSION
SHALL NOT HAVE JURISDICTION OVER ANY CARRIER "ENGAGED IN INTERSTATE OR
FOREIGN COMMUNICATION SOLELY THROUGH PHYSICAL CONNECTION WITH THE
FACILITIES OF ANOTHER CARRIER NOT DIRECTLY OR INDIRECTLY CONTROLLING OR
CONTROLLED BY, OR UNDER DIRECT OR INDIRECT COMMON CONTROL WITH, SUCH
CARRIER."  THE APPELLANT, ROCHESTER TELEPHONE CORPORATION (HEREAFTER
CALLED THE ROCHESTER), IS A NEW YORK CORPORATION MAINTAINING A SYSTEM
OF TELEPHONE COMMUNICATIONS IN AND AROUND THE CITY OF ROCHESTER.  FOR
PRESENT PURPOSES THE ROCHESTER IS TO BE DEEMED AS ENGAGED IN INTERSTATE
COMMUNICATIONS SOLELY BECAUSE OF PHYSICAL CONNECTIONS WITH THE
FACILITIES OF THE NEW YORK TELEPHONE COMPANY (HEREAFTER CALLED THE NEW
YORK). 

THE PRESENT CONTROVERSY GREW OUT OF A RULING BY THE FEDERAL
COMMUNICATIONS COMMISSION THAT THE ROCHESTER OWED OBEDIENCE TO A SERIES
OF ORDERS ISSUED BY THE COMMISSION.  THESE ORDERS REQUIRED ALL
TELEPHONE CARRIERS SUBJECT TO THE ACT TO FILE SCHEDULES OF THEIR
CHARGES, COPIES OF CONTRACTS WITH OTHER TELEPHONE CARRIERS, INFORMATION
CONCERNING THEIR CORPORATE AND SERVICE HISTORY, THEIR RELATIONS WITH
AFFILIATES, THEIR USE OF FRANKS AND PASSES.  COPIES OF THESE ORDERS
WERE DULY SERVED ON THE ROCHESTER.  NO RESPONSE BEING HAD, THE
TELEPHONE DIVISION OF THE COMMUNICATIONS COMMISSION, ON OCTOBER 9,
1935, ORDERED THE ROCHESTER TO SHOW CAUSE WHY IT SHOULD NOT BE REQUIRED
TO FILE RESPONSES TO THE GENERAL ORDERS THERETOFORE SERVED UPON IT.
FN1  THE ROCHESTER ANSWERED, CLAIMING TO BE OUTSIDE THE REQUIREMENTS OF
THE ACT EXCEPT AS TO MATTERS NOT HERE QUESTIONED. 

TO ASCERTAIN THE FACTS IN THE CONTESTED ISSUE, THE COMMISSION
APPOINTED A TRIAL EXAMINER.  AT HEARINGS HELD BY HIM THE ROCHESTER
ENTERED A SPECIAL APPEARANCE, DENYING THE COMMISSION'S JURISDICTION AND
CONTENDING THAT THE BURDEN OF PROOF WAS ON THE COMMISSION TO SHOW THAT
ROCHESTER DID NOT COME WITHIN THE EXCLUSIONARY PROVISIONS OF SEC.
2(B)(2).  AFTER A THOROUGH HEARING  FN2 AND THE SUBMISSION OF BRIEFS,
THE EXAMINER FILED HIS REPORT, TO WHICH THE ROCHESTER DULY EXCEPTED. 
UPON THE BASIS OF THESE PROCEEDINGS AND OF ARGUMENT BEFORE IT, THE
COMMISSION, THROUGH ITS TELEPHONE DIVISION, SUSTAINED THE FINDINGS OF
ITS CHIEF EXAMINER, DETERMINED THAT THE ROCHESTER WAS UNDER THE
"CONTROL" OF THE NEW YORK AND THEREFORE NOT ENTITLED TO THE
CLASSIFICATION OF A MERE CONNECTING CARRIER UNDER SEC. 2(B)(2). 
ACCORDINGLY, THE COMMISSION ORDERED THE ROCHESTER CLASSIFIED "AS
SUBJECT TO ALL COMMON CARRIER PROVISIONS OF THE COMMUNICATIONS ACT OF
1934, AND, THEREFORE, SUBJECT TO ALL ORDERS OF THE TELEPHONE
DIVISION."  A PETITION FOR REHEARING BEFORE THE FULL COMMISSION WAS
DENIED. 

THE ROCHESTER THEREUPON FILED THE PRESENT BILL, ALLEGING THAT THE
ORDER ENTERED BY THE COMMISSION ON NOVEMBER 18, 1936, PURSUANT TO ITS
REPORT, WAS CONTRARY TO UNDISPUTED FACTS AND ERRONEOUS AS A MATTER OF
LAW, AND THAT THE COMMISSION'S THREAT TO ENFORCE IT PUT THE ROCHESTER
TO THE HAZARD OF IRREPARABLE INJURY, AND PRAYING THAT THE DISTRICT
COURT 

"MAKE AND ENTER ITS ORDER AND DECREE SETTING ASIDE AND ANNULLING SAID
ORDERS OF THE FEDERAL COMMUNICATIONS COMMISSION HEREINBEFORE MENTIONED,
AND EACH AND ALL OF THEM, AND ENJOINING THE ENFORCEMENT OF SAID ORDERS,
EXCEPT IN SO FAR AS THE PROVISIONS OF SAID ORDERS  ... HAVE ALREADY
BEEN COMPLIED WITH." 

THE CASE WAS DISPOSED OF IN THE DISTRICT COURT ON THE PLEADINGS AND
THE RECORD BEFORE THE COMMISSION. 

BELOW, THE GOVERNMENT MADE NO OBJECTION TO THE DISTRICT COURT'S
JURISDICTION, NOR DID THAT COURT RAISE THE QUESTION SUA SPONTE.  FN3
IT SUSTAINED THE COMMISSION'S ACTION ON THE MERITS AND DISMISSED THE
BILL.  HERE, THE GOVERNMENT URGES THAT UNDER THE DOCTRINE OF "NEGATIVE
ORDERS" THE COMMISSION'S ORDER WAS NOT REVIEWABLE, BUT, IN THE
ALTERNATIVE, SUPPORTS THE DECREE ON THE MERITS. 

THE RELATION OF ACTION BY THE FEDERAL COMMUNICATIONS COMMISSION TO
THE REVIEWING POWER OF THE COURTS IS HERE FOR THE FIRST TIME.  THE
JURISDICTIONAL OBJECTION RAISED BY THE GOVERNMENT IN THIS CASE
IMPLICATES OTHER FEDERAL REGULATORY BODIES AS WELL, BECAUSE THE VARIOUS
STATUTORY SCHEMES FOR JUDICIAL REVIEW HAVE EITHER BEEN CARRIED OVER
FROM THE URGENT DEFICIENCIES ACT, PERTAINING TO ORDERS UNDER THE ACTS
TO REGULATE COMMERCE, OR BECAUSE DIFFERENT STATUTORY PROVISIONS HAVE BY
ANALOGY BEEN ASSIMILATED TO THE "NEGATIVE ORDER" DOCTRINE.  THAT
DOCTRINE HAS NOT HAD WHOLLY PLAIN SAILING IN THE MANY CASES, BOTH HERE
AND IN THE LOWER FEDERAL COURTS, SINCE IT FIRST GOT UNDER WAY IN 1912,
IN PROCTER & GAMBLE CO. V. UNITED STATES, 225 U.S. 282. 

THE IMPORTANT PROCEDURAL PROBLEMS WITH WHICH THIS CASE IS ENTANGLED
THEREFORE CALL FOR CLARIFICATION. 

THE PRIOR DECISIONS INVOLVING THE "NEGATIVE ORDER" DOCTRINE FALL INTO
THREE CATEGORIES:  FN4 

(1)  WHERE THE ACTION SOUGHT TO BE REVIEWED MAY HAVE THE EFFECT OF
FORBIDDING OR COMPELLING CONDUCT ON THE PART OF THE PERSON SEEKING TO
REVIEW IT, BUT ONLY IF SOME FURTHER ACTION IS TAKEN BY THE COMMISSION. 
SUCH A SITUATION IS PRESENTED BY AN ATTEMPT TO REVIEW A VALUATION MADE
BY THE INTERSTATE COMMERCE COMMISSION WHICH HAS NO IMMEDIATE LEGAL
EFFECT ALTHOUGH IT MAY BE THE BASIS OF A SUBSEQUENT RATE ORDER. 

(2)  WHERE THE ACTION SOUGHT TO BE REVIEWED DECLINES TO RELIEVE THE
COMPLAINANT FROM A STATUTORY COMMAND FORBIDDING OR COMPELLING CONDUCT
ON HIS PART.  THE MOST OBVIOUS CASE IS A DENIAL OF PERMISSION BY THE
INTERSTATE COMMERCE COMMISSION FOR A DEPARTURE FROM THE LONG-SHORT HAUL
CLAUSE. 

(3)  WHERE THE ACTION SOUGHT TO BE REVIEWED DOES NOT FORBID OR COMPEL
CONDUCT ON THE PART OF THE PERSON SEEKING REVIEW BUT IS ATTACKED
BECAUSE IT DOES NOT FORBID OR COMPEL CONDUCT BY A THIRD PERSON.  A
FAMILIAR EXAMPLE IS THAT OF A SHIPPER REQUESTING THE INTERSTATE
COMMERCE COMMISSION FOR AN ORDER COMPELLING THE CARRIER TO ADOPT
CERTAIN RATES OR PRACTICES WHICH THE COMMISSION, ON THE MERITS,
DECLINES.  ANOTHER INSTANCE IS WHERE THE COMMISSION AUTHORIZES THE
CARRIER TO DEPART FROM THE LONG-SHORT HAUL CLAUSE AND A SHIPPER
ADVERSELY AFFECTED SEEKS TO HAVE THE AUTHORIZATION SET ASIDE. 

IN GROUP (1) THE ORDER SOUGHT TO BE REVIEWED DOES NOT OF ITSELF
ADVERSELY AFFECT COMPLAINANT BUT ONLY AFFECTS HIS RIGHTS ADVERSELY ON
THE CONTINGENCY OF FUTURE ADMINISTRATIVE ACTION.  IN VIEW OF
TRADITIONAL CONCEPTIONS OF FEDERAL JUDICIAL POWER, RESORT TO THE COURTS
IN THESE SITUATIONS IS EITHER PREMATURE OR WHOLLY BEYOND THEIR
PROVINCE.  THUS, ORDERS OF THE INTERSTATE COMMERCE COMMISSION SETTING A
CASE FOR HEARING DESPITE A CHALLENGE TO ITS JURISDICTION,  FN5  OR
RENDERING A TENTATIVE  FN6  OR FINAL VALUATION  FN7  UNDER THE
VALUATION ACT, ALTHOUGH CLAIMED TO BE INACCURATE, OR HOLDING THAT A
CARRIER IS WITHIN THE RAILWAY LABOR ACT AND THEREFORE AMENABLE TO THE
NATIONAL MEDIATION BOARD, ARE NOT REVIEWABLE.  FN8 

THE GOVERNING CONSIDERATIONS WHICH KEEP SUCH ORDERS WITHOUT THE AREA
OF JUDICIAL REVIEW WERE THUS SUMMARIZED FOR THE COURT BY MR. JUSTICE
BRANDEIS IN DENYING REVIEWABILITY OF A "FINAL VALUATION" UNDER THE
VALUATIONS ACT:  "THE SO-CALLED ORDER HERE COMPLAINED OF IS ONE WHICH
DOES NOT COMMAND THE CARRIER TO DO, OR TO REFRAIN FROM DOING, ANYTHING;
WHICH DOES NOT GRANT OR WITHHOLD ANY AUTHORITY, PRIVILEGE OR LICENSE;
WHICH DOES NOT EXTEND OR ABRIDGE ANY POWER OR FACILITY; WHICH DOES NOT
SUBJECT THE CARRIER TO ANY LIABILITY, CIVIL OR CRIMINAL; WHICH DOES NOT
CHANGE THE CARRIER'S EXISTING OR FUTURE STATUS OR CONDITION; WHICH DOES
NOT DETERMINE ANY RIGHT OR OBLIGATION."  UNITED STATES V. LOS ANGELES &
S.L.R. CO., 273 U.S. 299, 309-310. 

PLAINLY THE DENIAL OF JUDICIAL REVIEW IN THESE CASES DOES NOT DERIVE
FROM A REGARD FOR THE SPECIAL FUNCTIONS OF ADMINISTRATIVE AGENCIES. 
JUDICIAL ABSTENTION HERE IS MERELY AN APPLICATION OF THE TRADITIONAL
CRITERIA FOR BRINGING JUDICIAL ACTION INTO PLAY.  PARTLY THESE HAVE
BEEN WRITTEN INTO ARTICLE III OF THE CONSTITUTION BY WHAT IS IMPLIED
FROM THE GRANT OF "JUDICIAL POWER" TO DETERMINE "CASES" AND
"CONTROVERSIES," ART. III, SEC. 2, U.S. CONSTITUTION.  FN9  PARTLY THEY
ARE AN ASPECT OF THE PROCEDURAL PHILOSOPHY PERTAINING TO THE FEDERAL
COURTS WHEREBY, EVER SINCE THE FIRST JUDICIARY ACT, CONGRESS HAS BEEN
LOATH TO AUTHORIZE REVIEW OF INTERIM STEPS IN A PROCEEDING.  FN10 

GROUP (2) IS COMPOSED OF INSTANCES OF STATUTORY REGULATIONS WHICH
PLACE RESTRICTIONS UPON THE FREE CONDUCT OF THE COMPLAINANT.  TO RID
HIMSELF OF THESE RESTRICTIONS THE COMPLAINANT EITHER ASKS THE
INTERSTATE COMMERCE COMMISSION TO PLACE HIM OUTSIDE THE STATUTE, OR,
BEING CONCEDEDLY WITHIN IT, HE INVOKES THE COMMISSION'S DISPENSING
POWER.  IN THIS TYPE OF SITUATION A COMPLAINANT SEEKING JUDICIAL REVIEW
UNDER THE URGENT DEFICIENCIES ACT OF ADVERSE ACTION BY THE COMMISSION
MUST CLEAR THREE HURDLES:  (A) "CASE" OR "CONTROVERSY" UNDER ARTICLE
III; (B) THE CONVENTIONAL REQUISITES OF EQUITY JURISDICTION; (C) THE
SPECIFIC TERMS OF THE STATUTE GRANTING TO THE DISTRICT COURTS
JURISDICTION IN SUITS CHALLENGING "ANY ORDER" OF THE COMMISSION. 

WHERE A COMPLAINANT SEEKS THE COMMISSION'S AUTHORITY UNDER THE TERMS
OF A STATUTE AND THE COMMISSION'S ACTION IS FOLLOWED BY LEGAL
CONSEQUENCES, AS WAS THE CASE IN LEHIGH VALLEY R. CO. V. UNITED STATES,
243 U.S. 412, OR WHERE THE COMMISSION'S ORDER DENIES AN EXEMPTION FROM
THE TERMS OF THE STATUTE, AS IN THE INTERMOUNTAIN RATE CASES, 234 U.S.
476, THE ROAD TO THE COURTS' JURISDICTION SEEMS TO BE CLEAR.  THERE IS
A CONSTITUTIONAL "CASE" OR "CONTROVERSY," INTERSTATE COMMERCE COMM'N V.
BRIMSON, 154 U.S. 447; THE REQUIREMENTS OF EQUITY ARE SATISFIED IF
DISREGARD OF THE COMMISSION'S ADVERSE ACTION ENTAILS THREAT OF
OPPRESSIVE PENALTIES; AND THE SUIT IS WITHIN THE EXPRESS LANGUAGE OF
THE URGENT DEFICIENCIES ACT IN THAT IT IS ONE "TO ENJOIN, SET ASIDE, OR
ANNUL" AN "ORDER OF THE COMMISSION."  28 U.S.C. SECS. 46, 47.  FN11
WHILE THE PENALTIES MAY BE IMPOSED BY THE STATUTE FOR ITS VIOLATION AND
NOT FOR DISOBEDIENCE OF THE COMMISSION'S ORDER, A FAVORABLE ORDER WOULD
RENDER THE PROHIBITIONS OF THE STATUTE INOPERATIVE.  THE COMPLAINANT
CAN COME INTO COURT, OF COURSE, NOT TO REVIEW ACTION WITHIN THE
DISCRETIONARY AUTHORITY OF THE COMMISSION TO RENDER AN ADVERSE RATHER
THAN A FAVORABLE DECISION BUT BECAUSE HE URGES ERRORS OF LAW OUTSIDE
THE COMMISSION'S FINAL SAY-SO.  SUCH AN ANALYSIS EMERGES FROM A LONG
SEQUENCE OF CASES UNDER THE URGENT DEFICIENCIES ACT VIEWED IN THE
SETTING OF GENERAL DOCTRINES OF FEDERAL JURISDICTION.  ON THE OTHER
HAND, THE RESULT IN THE LEHIGH VALLEY CASE WAS REACHED IN THE EARLIER
PHASES OF MODERN ADMINISTRATIVE LAW AND DID NOT DEAL WITH ITS SPECIFIC
JURISDICTIONAL PROBLEMS IN THE PERSPECTIVE OF UNDERLYING PRINCIPLES
GOVERNING FEDERAL EQUITABLE JURISDICTION.  IN CONSEQUENCE, THE PHRASE
"NEGATIVE ORDERS" GAINED CURRENCY AS THOUGH IT WERE DESCRIPTIVE OF SOME
TECHNICAL DOCTRINE OF JURISDICTION HAVING PECULIAR RELEVANCE TO
JUDICIAL REVIEW OF ORDERS OF THE INTERSTATE COMMERCE COMMISSION AND
COMPARABLE REGULATORY BODIES.  FN12 

THIS BRINGS US TO THE CASES IN GROUP (3).  HERE REVIEW IS SOUGHT OF
ACTION BY THE COMMISSION WHICH AFFECTS THE COMPLAINANT BECAUSE IT DOES
NOT FORBID OR COMPEL CONDUCT WITH REFERENCE TO HIM BY A THIRD PERSON. 
THIS TYPE OF SITUATION IS ILLUSTRATED BY PROCTER & GAMBLE CO. V. UNITED
STATES, 225 U.S. 282.  SINCE THIS CASE GAVE RISE TO THE NOTION THAT
THERE IS A SPECIALIZED JURISDICTIONAL DOCTRINE PERTAINING TO "NEGATIVE
ORDERS," IT CALLS FOR RE-EXAMINATION.  PROCTER & GAMBLE CO. FILED A
COMPLAINT WITH THE INTERSTATE COMMERCE COMMISSION TO SET ASIDE
DEMURRAGE RULES THAT IMPOSED CHARGES ON PRIVATE CARS LEFT UNLOADED FOR
OVER FORTY-EIGHT HOURS ON PRIVATE TRACKS.  THE COMMISSION DISMISSED THE
COMPLAINT ON THE GROUND THAT THE RULES WERE WITHIN THE CARRIERS'
AUTHORITY TO MAKE CONDITIONS FOR THE ACCEPTANCE OF PRIVATE CARS. 
PROCTER & GAMBLE THEN PETITIONED THE COMMERCE COURT TO ANNUL THE
COMMISSION'S ACTION AND TO ENJOIN THE CARRIERS FROM ENFORCING THE
RULES.  THE COMMERCE COURT TOOK JURISDICTION BUT FOUND THE COMMISSION'S
ACTION TO BE WITHIN ITS AUTHORITY.  ON APPEAL THIS COURT HELD THAT THE
COMMERCE COURT ERRED IN TAKING JURISDICTION AND REMANDED THE CAUSE FOR
DISMISSAL.    CLEARLY PROCTER & GAMBLE WAS AUTHORIZED UNDER SEC. 13 OF
THE ACT TO REGULATE COMMERCE TO INSTITUTE THE PROCEEDINGS BEFORE THE
COMMISSION.  SINCE IT ASSERTED A LEGAL RIGHT UNDER THAT ACT TO HAVE THE
COMMISSION APPLY DIFFERENT PRINCIPLES OF LAW FROM THOSE WHICH LED THE
COMMISSION TO DISMISS THE COMPLAINT, THE INGREDIENTS FOR AN
ADJUDICATION - CONSTITUTING A CASE OR CONTROVERSY - WERE PRESENT. 
COMPARE INTERSTATE COMMERCE COMM'N V. BRIMSON, SUPRA; INTERSTATE
COMMERCE COMM'N V. BAIRD, 194 U.S. 25, 38.  JUDICIAL RELIEF WOULD BE
PRECISELY THE SAME AS IN THE RECOGNIZED INSTANCES OF REVIEW BY COURTS
OF COMMISSION ACTION:  IF THE LEGAL PRINCIPLES ON WHICH THE COMMISSION
ACTED WERE NOT ERRONEOUS, THE BILL WOULD BE ORDERED DISMISSED; IF THE
COMMISSION WAS FOUND TO HAVE PROCEEDED ON ERRONEOUS LEGAL PRINCIPLES,
THE COMMISSION WOULD BE ORDERED TO PROCEED WITHIN THE FRAMEWORK OF ITS
OWN DISCRETIONARY AUTHORITY ON THE INDICATED CORRECT PRINCIPLES.  THE
REQUISITES OF EQUITY HAVE OF COURSE TO BE SATISFIED, BUT BY THE
CONVENTIONAL CRITERIA.  THEY WERE SATISFIED IN THE PROCTER & GAMBLE
CASE, SINCE THE BILL SOUGHT TO AVOID A MULTIPLICITY OF SUITS.  FINALLY,
THE SHIPPER WAS WITHIN THE EXPRESS LANGUAGE OF CONGRESS AUTHORIZING
SUITS "TO ENJOIN, SET ASIDE, ANNUL,  ...  ANY ORDER OF THE INTERSTATE
COMMERCE COMMISSION."  TO BE SURE, THE OPINION IN THE PROCTER & GAMBLE
CASE PARTLY YIELDED TO THE GOVERNMENT'S MAIN CONTENTION IN THAT CASE
THAT THE JURISDICTIONAL STATUTE ONLY APPLIED WHERE THE ORDER COMPLAINED
OF WAS ONE WHICH WAS TO BE ENFORCED BY THE COMMISSION.  MORE RECENT
DECISIONS OF THIS COURT, HOWEVER, HAVE DISPENSED WITH THIS REQUISITE
FOR REVIEW.  FN13 

THE IMPELLING CONSIDERATION UNDERLYING THE DECISION IN THE PROCTER &
GAMBLE CASE DID NOT CONCERN TECHNICAL PROCEDURE.  IT WAS PART OF THE
PROCESS OF ADJUSTING RELATIONS BETWEEN THE INTERSTATE COMMERCE
COMMISSION AND THE COURTS TO EFFECTUATE THE PURPOSES OF THE
COMMISSION.  THIS IS MADE ABUNDANTLY CLEAR BY THE GENERAL ATMOSPHERE OF
THE OPINION AS WELL AS BY ITS LANGUAGE,  FN14 PARTICULARLY WHEN REGARD
IS HAD TO THE FACT THAT THE COURT'S SPOKESMAN WAS CHIEF JUSTICE WHITE,
WHO HAD SUCH A LARGE SHARE IN DEVELOPING MODERN ADMINISTRATIVE LAW. 
FN15  WHILE THE INTERSTATE COMMERCE COMMISSION HAD BEEN IN EXISTENCE
SINCE 1887, THE ENLARGEMENT OF ITS POWERS THROUGH THE HEPBURN ACT, IN
1906,  FN16  AND THE MANN-ELKINS ACT, IN 1910,  FN17  THE ESTABLISHMENT
OF SIMILAR AGENCIES IN MANY STATES FOLLOWING THE LEAD OF NEW YORK  FN18
AND WISCONSIN,  FN19  THE WIDESPREAD RECOGNITION THAT THESE SPECIFIC
INSTANCES MARKED A GENERAL MOVEMENT,  FN20  MADE INCREASINGLY MANIFEST
THE PLACE OF ADMINISTRATIVE AGENCIES IN ENFORCING LEGISLATIVE POLICIES
AND CALLED FOR ACCOMMODATION OF THE DUTIES ENTRUSTED TO THEM TO OUR
TRADITIONAL JUDICIAL SYSTEM.  THIS COURT "ASCRIBED" TO THE FINDINGS OF
THE COMMISSION "THE STRENGTH DUE TO THE JUDGMENTS OF A TRIBUNAL
APPOINTED BY LAW AND INFORMED BY EXPERIENCE."  ILLINOIS CENTRAL R. CO.
V. INTERSTATE COMMERCE COMM'N, 206 U.S. 441, 454.  RECOGNITION OF THE
COMMISSION'S EXPERTISE ALSO LED THIS COURT NOT TO BIND THE COMMISSION
TO COMMON LAW EVIDENTIARY AND PROCEDURAL FETTERS IN ENFORCING BASIC
PROCEDURAL SAFEGUARDS.  FN21 

FROM THESE GENERAL CONSIDERATIONS THE COURT EVOLVED TWO SPECIFIC
DOCTRINES LIMITING JUDICIAL REVIEW OF ORDERS OF THE INTERSTATE COMMERCE
COMMISSION.  ONE IS THE PRIMARY JURISDICTION DOCTRINE, FIRMLY
ESTABLISHED IN TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204
U.S. 426.  THEREBY MATTERS WHICH CALL FOR TECHNICAL KNOWLEDGE
PERTAINING TO TRANSPORTATION MUST FIRST BE PASSED UPON BY THE
INTERSTATE COMMERCE COMMISSION BEFORE A COURT CAN BE INVOKED.  FN22
THE OTHER IS THE DOCTRINE OF ADMINISTRATIVE FINALITY.  EVEN WHEN RESORT
TO COURTS CAN BE HAD TO REVIEW A COMMISSION'S ORDER, THE RANGE OF
ISSUES OPEN TO REVIEW IS NARROW.  ONLY QUESTIONS AFFECTING
CONSTITUTIONAL POWER, STATUTORY AUTHORITY AND THE BASIC PREREQUISITES
OF PROOF CAN BE RAISED.  IF THESE LEGAL TESTS ARE SATISFIED, THE
COMMISSION'S ORDER BECOMES INCONTESTABLE.  INTERSTATE COMMERCE COMM'N
V. ILLINOIS CENTRAL R. CO., 215 U.S. 452, 470; INTERSTATE COMMERCE
COMM'N V. UNION PACIFIC R. CO., 222 U.S. 541. 

IN TRANSLATING THESE IMPORTANT OBJECTIVES FOR EFFECTUATING THE
CONGRESSIONAL SCHEME TO ENLARGE THE INDEPENDENT POWERS OF THE
INTERSTATE COMMERCE COMMISSION INTO A SEEMINGLY TECHNICAL DISTINCTION
BETWEEN "NEGATIVE" AND "AFFIRMATIVE" ORDERS, THE OPINION IN PROCTER &
GAMBLE V. UNITED STATES GAVE AUTHORITY TO A DOCTRINE WHICH HARMONIZES
NEITHER WITH THE CONSIDERATIONS WHICH INDUCED IT NOR WITH THE COURSE OF
DECISIONS WHICH HAVE PURPORTED TO FOLLOW IT.  FN23  SUBSEQUENT CASES
HAVE MADE IT ABUNDANTLY CLEAR THAT "NEGATIVE ORDER" AND "AFFIRMATIVE
ORDER" ARE NOT APPROPRIATE TERMS OF ART. FN24  THUS, THE COURT HAS HAD
OCCASION TO FIND THAT WHILE AN ORDER WAS "NEGATIVE IN FORM" IT WAS
"AFFIRMATIVE IN SUBSTANCE.""  FN25  NEGATIVE" HAS REALLY BEEN AN
OBFUSCATING ADJECTIVE IN THAT IT IMPLIED A SEARCH FOR A DISTINCTION -
NON-ACTION AS AGAINST ACTION - WHICH DOES NOT INVOLVE THE REAL
CONSIDERATIONS ON WHICH REST, AS WE HAVE SEEN, THE REVIEWABILITY OF
COMMISSION ORDERS WITHIN THE FRAMEWORK OF ITS DISCRETIONARY AUTHORITY
AND WITHIN THE GENERAL CRITERIA OF JUSTICIABILITY."  FN26  NEGATIVE"
AND "AFFIRMATIVE," IN THE CONTEXT OF THESE PROBLEMS, IS AS
UNILLUMINATING AND MISCHIEF-MAKING A DISTINCTION AS THE OUTMODED LINE
BETWEEN "NONFEASANCE" AND "MISFEASANCE."  FN27 

THE CONSIDERATIONS OF POLICY FOR WHICH THE NOTIONS OF "NEGATIVE" AND
"AFFIRMATIVE" ORDERS WERE INTRODUCED, ARE COMPLETELY SATISFIED BY
PROPER APPLICATION OF THE COMBINED DOCTRINES OF PRIMARY JURISDICTION
AND ADMINISTRATIVE FINALITY.  THE CONCEPT OF "NEGATIVE ORDERS" HAS NOT
SERVED TO CLARIFY THE RELATIONS BETWEEN ADMINISTRATIVE BODIES AND THE
COURTS BUT HAS RATHER TENDED TO OBSCURE THEM.  AN ACTION BEFORE THE
INTERSTATE COMMERCE COMMISSION IS AKIN TO AN INCLUSIVE EQUITY SUIT IN
WHICH ALL RELEVANT CLAIMS ARE ADJUSTED.  FN28  AN ORDER OF THE
COMMISSION DISMISSING A COMPLAINT ON THE MERITS AND MAINTAINING THE
STATUS QUO IS AN EXERCISE OF ADMINISTRATIVE FUNCTION, NO MORE AND NO
LESS, THAN AN ORDER DIRECTING SOME CHANGE IN STATUS.  THE NATURE OF THE
ISSUES FORECLOSED BY THE COMMISSION'S ACTION AND THE NATURE OF THE
ISSUES LEFT OPEN, SO FAR AS THE REVIEWING POWER OF COURTS IS CONCERNED,
ARE THE SAME.  REFUSAL TO CHANGE AN EXISTING SITUATION MAY, OF COURSE,
ITSELF BE A FACTOR IN THE COMMISSION'S ALLOWABLE EXERCISE OF
DISCRETION.  IN THE APPLICATION OF RELEVANT CANONS OF JUDICIAL REVIEW
AN ORDER OF THE COMMISSION DIRECTING THE ADOPTION OF A PRACTICE MIGHT
RAISE CONSIDERATIONS ABSENT FROM A SITUATION WHERE THE COMMISSION
MERELY ALLOWED SUCH A PRACTICE TO CONTINUE.  BUT THIS BEARS ON THE
DISPOSITION OF A CASE AND SHOULD NOT CONTROL JURISDICTION.  THE NATURE
OF JUDICIAL RELIEF, THAT IS THE FORM OF DIRECTIONS AVAILABLE, IN
SITUATIONS LIKE THOSE PRESENTED BY THE PROCTER & GAMBLE AND THE LEHIGH
VALLEY CASES, WERE THE COMMISSION'S ORDERS REVIEWED, WOULD BE NO
DIFFERENT THAN WAS THAT USED IN THE INTERMOUNTAIN RATE AND THE NEW
RIVER COAL CO. CASES.  FN29  IN BOTH TYPES OF SITUATIONS "A JUDGMENT
RENDERED WILL BE A FINAL AND INDISPUTABLE BASIS OF ACTION AS BETWEEN
THE COMMISSION AND THE DEFENDANT," INTERSTATE COMMERCE COMM'N V. BAIRD,
194 U.S. 25, 38.  WE CONCLUDE, THEREFORE, THAT ANY DISTINCTION, AS
SUCH, BETWEEN "NEGATIVE" AND "AFFIRMATIVE" ORDERS, AS A TOUCHSTONE OF
JURISDICTION TO REVIEW THE COMMISSION'S ORDERS, SERVES NO USEFUL
PURPOSE, AND INSOFAR AS EARLIER DECISIONS HAVE BEEN CONTROLLED BY THIS
DISTINCTION, THEY CAN NO LONGER BE GUIDING. 

THE ORDER OF THE COMMUNICATIONS COMMISSION IN THIS CASE WAS THEREFORE
REVIEWABLE.  IT WAS NOT A MERE ABSTRACT DECLARATION REGARDING THE
STATUS OF THE ROCHESTER UNDER THE COMMUNICATIONS ACT, FN30  NOR WAS IT
A STAGE IN AN INCOMPLETE PROCESS OF ADMINISTRATIVE ADJUDICATION.  THE
CONTESTED ORDER DETERMINING THE STATUS OF THE ROCHESTER NECESSARILY AND
IMMEDIATELY CARRIED DIRECTION OF OBEDIENCE TO PREVIOUSLY FORMULATED
MANDATORY ORDERS ADDRESSED GENERALLY TO ALL CARRIERS AMENABLE TO THE
COMMISSION'S AUTHORITY.  INTO THIS CLASS OF CARRIERS THE ORDER UNDER
DISPUTE COVERED THE ROCHESTER, AND BY THAT FACT, IN CONJUNCTION WITH
THE OTHER ORDERS, MADE DETERMINATION OF THE STATUS OF THE ROCHESTER A
REVIEWABLE ORDER OF THE COMMISSION. 

BUT WHILE THE ROCHESTER HAD A RIGHT TO CHALLENGE THE ORDER, IT CANNOT
PREVAIL ON THE MERITS. 

THE ULTIMATE LEGAL ISSUE IS THE VALIDITY OF THE COMMISSION'S FINDING
THAT THE ROCHESTER "IS UNDER THE CONTROL OF THE NEW YORK TELEPHONE
COMPANY."  THE JUSTIFICATION FOR THIS FINDING CLEARLY EMERGES FROM A
RAPID SUMMARY OF THE GOVERNING FACTS ADDUCED BEFORE THE COMMISSION
CONCERNING THE RELATIONSHIP BETWEEN THE NEW YORK AND THE ROCHESTER. 

PRIOR TO 1920 AN INDEPENDENT TELEPHONE COMPANY AND THE NEW YORK
(WHICH WAS PART OF THE BELL SYSTEM) WERE COMPETITORS IN ROCHESTER.  AS
PART OF AN ENDEAVOR TO MEET AN ARRANGEMENT WHICH THE BELL SYSTEM HAD,
IN 1913, MADE WITH THE DEPARTMENT OF JUSTICE, THE DETAILS OF WHICH NEED
NOT HERE BE RECITED, THE ROCHESTER WAS FORMED TO CONSOLIDATE THE TWO
PREVIOUSLY COMPETING ENTERPRISES.  THE PROPERTY OF THE INDEPENDENT WAS
PAID FOR BY BONDS OF THE ROCHESTER, AND THE PROPERTY OF THE NEW YORK BY
PREFERRED STOCK, LATER DESIGNATED AS SECOND PREFERRED, OF WHICH THE NEW
YORK HAD THE ENTIRE ISSUE, 48,140 SHARES AT $100 PAR. THE ROCHESTER
ISSUED 1000 SHARES OF COMMON STOCK, AT $100 PAR, OF WHICH THE NEW YORK
PURCHASED 335 SHARES.  THE NEW YORK ALSO PAID THE OFFICERS OF THE
INDEPENDENT COMPANY $70,000 FOR THEIR SERVICES IN CONSUMMATING THE
CONSOLIDATION, BUT $66,500 OF THIS AMOUNT WAS TO BE USED IN PURCHASING
THE REMAINING 665 SHARES OF COMMON STOCK FOR DEPOSIT IN A VOTING
TRUST.  OTHER OUTSTANDING SECURITIES OF THE ROCHESTER, FIRST PREFERRED
STOCK AND BONDS, NEITHER OF WHICH HAD ANY VOTING RIGHTS, WERE HELD BY
THE PUBLIC.  THERE WERE COMPLICATED LIMITATIONS UPON THE VOTING RIGHTS
OF THE SECOND PREFERRED STOCKHOLDERS, BUT THE DOMINATING CIRCUMSTANCES
TOUCHING VOTING RIGHTS WERE THAT IN MAJOR MATTERS NO VOTE OF
STOCKHOLDERS COULD BE EFFECTIVE UNLESS CONCURRED IN BY EIGHTY PER CENT
OF THE COMMON STOCK AND THAT THE EXECUTIVE COMMITTEE AND THE BOARD OF
DIRECTORS WERE ELECTED BY CUMULATIVE VOTING OF THE COMMON STOCK,
THEREBY ASSURING NEW YORK FIVE OUT OF FIFTEEN MEMBERS OF THE BOARD OF
DIRECTORS AND TWO MEMBERS IN AN EXECUTIVE COMMITTEE OF FIVE. 

PUTTING ALL THESE FACTORS IN THE CONTEXT OF THE CIRCUMSTANCES UNDER
WHICH THE ROCHESTER CAME INTO BEING, THE MANNER IN WHICH IT WAS
FINANCED, THE OPERATION OF THE VOTING TRUST, AND THE STAKE OF THE NEW
YORK IN THE ROCHESTER, THE COMMISSION, AFTER FULL HEARING AND DUE
CONSIDERATION, CONCLUDED THAT "THE NEW YORK COMPANY, THROUGH STOCK
OWNERSHIP, IS THE DOMINANT FINANCIAL FACTOR IN THE RESPONDENT COMPANY
AND ALSO, THAT THIS, TAKEN TOGETHER WITH THEIR CONTRACTUAL ARRANGEMENTS
AND OTHER PERTINENT FACTS AND CIRCUMSTANCES APPEARING IN THE RECORD,
UNQUESTIONABLY GIVES THE NEW YORK COMPANY POWER TO CONTROL THE
FUNCTIONS OF THE ROCHESTER TELEPHONE CORPORATION." 

THE RECORD AMPLY JUSTIFIED THE COMMUNICATIONS COMMISSION IN MAKING
SUCH FINDINGS.  INVESTING THE COMMISSION WITH THE DUTY OF ASCERTAINING
"CONTROL" OF ONE COMPANY BY ANOTHER, CONGRESS DID NOT IMPLY ARTIFICIAL
TESTS OF CONTROL.  FN31  THIS IS AN ISSUE OF FACT TO BE DETERMINED BY
THE SPECIAL CIRCUMSTANCES OF EACH CASE.  SO LONG AS THERE IS WARRANT IN
THE RECORD FOR THE JUDGMENT OF THE EXPERT BODY IT MUST STAND.  THE
SUGGESTION THAT THE REFUSAL TO REGARD THE NEW YORK OWNERSHIP OF ONLY
ONE THIRD OF THE COMMON STOCK OF THE ROCHESTER AS CONCLUSIVE OF THE
FORMER'S LACK OF CONTROL OF THE LATTER SHOULD INVALIDATE THE
COMMISSION'S FINDING, DISREGARDS ACTUALITIES IN SUCH INTERCORPORATE
RELATIONS.  HAVING FOUND THAT THE RECORD PERMITTED THE COMMISSION TO
DRAW THE CONCLUSION THAT IT DID, A COURT TRAVELS BEYOND ITS PROVINCE TO
EXPRESS CONCURRENCE THEREWITH AS AN ORIGINAL QUESTION.  "THE JUDICIAL
FUNCTION IS EXHAUSTED WHEN THERE IS FOUND TO BE A RATIONAL BASIS FOR
THE CONCLUSIONS APPROVED BY THE ADMINISTRATIVE BODY."  MISSISSIPPI
VALLEY BARGE LINE CO. V. UNITED STATES, 292 U.S. 282, 286-287; SWAYNE &
HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 303, ET SEQ. DECREE
AFFIRMED. 

FN1  ON NOVEMBER 13, 1935, THE ORDER WAS AMENDED IN MATTERS NOT HERE
RELEVANT. 

FN2  THE HEARING BEFORE THE EXAMINER LASTED TWO DAYS; 221 PAGES OF
TESTIMONY WERE TAKEN AND 34 EXHIBITS WERE INTRODUCED. 

FN3  UNDER UNITED STATES V. CORRICK, 298 U.S. 435, 440, AND UNITED
STATES V. GRIFFIN, 303 U.S. 226, 229, THE DOCTRINE OF "NEGATIVE ORDERS"
IMPLIES A JURISDICTIONAL DEFECT WHICH COURTS MUST CONSIDER SUA SPONTE. 

FN4  ALL EXCEPT ONE OF THE PRIOR DECISIONS OF THIS COURT ON THE
"NEGATIVE ORDER" DOCTRINE INVOLVED REVIEW OF ACTION BY THE INTERSTATE
COMMERCE COMMISSION.  UNITED STATES V. CORRICK, SUPRA, NOTE 3, INVOLVED
REVIEW OF ACTION BY THE SECRETARY OF AGRICULTURE UNDER THE PACKERS AND
STOCKYARDS ACT. 

FN5  UNITED STATES V. ILLINOIS CENTRAL R. CO., 244 U.S. 82.  COMPARE
FEDERAL POWER COMM'N V. METROPOLITAN EDISON CO., 304 U.S. 375. 

FN6  DELAWARE & HUDSON CO. V. UNITED STATES, 266 U.S. 438. 

FN7  UNITED STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299. 

FN8  SHANNAHAN V. UNITED STATES, 303 U.S. 596; COMPARE SHIELDS V.
UTAH IDAHO CENTRAL R. CO., 305 U.S. 177, 182-184.    FN9  HAYBURN'S
CASE, 2 DALL.  409, IS THE SYMBOL FOR CONSIDERATIONS WHICH LIMIT THE
CONSTITUTIONAL POWER OF THE FEDERAL COURTS, THOUGH THAT CASE ITSELF
NEVER REACHED ADJUDICATION.  SEE, ALSO, UNITED STATES V. FERREIRA, 13
HOW.  40; MUSKRAT V. UNITED STATES, 219 U.S. 346. 

FN10  PRIOR TO SEC. 7 OF THE ACT OF MARCH 3, 1891, AUTHORIZING AN
APPEAL TO THE CIRCUIT COURT OF APPEALS FROM A DECREE GRANTING A
PRELIMINARY INJUNCTION, REVIEW IN A CASE NOT INVOLVING A FINAL JUDGMENT
WAS UNKNOWN IN THE FEDERAL JUDICIAL SYSTEM, EXCEPT INSOFAR AS IT WAS
PRESENT IN THE PRACTICE OF CERTIFICATION INTRODUCED BY SEC. 6 OF THE
ACT OF APRIL 29, 1802.  SEE UNITED STATES V. BAILEY, 9 PET. 267.  FOR
STATE COURT DECISIONS THE REQUIREMENTS FOR FINALITY OF THE ORIGINAL
JUDICIARY ACT HAVE BEEN ADHERED TO.  SEC. 237, JUDICIAL CODE AS
AMENDED, 28 U.S.C. SEC. 344.  REVIEW OF ACTION OF THE FEDERAL DISTRICT
COURTS NOT INVOLVING FINAL JUDGMENTS CAN BE HAD ONLY IN A LIMITED CLASS
OF CASES DEALING WITH INTERLOCUTORY INJUNCTIONS, RECEIVERSHIPS, AND
CRIMINAL APPEALS.  SECS. 129 AND 238 OF THE JUDICIAL CODE AS AMENDED,
28 U.S.C. SECS. 227, 345.  THIS COURT, HOWEVER, MAY TAKE JURISDICTION
ON CERTIORARI BEFORE THE APPELLATE JURISDICTION OF THE CIRCUIT COURT OF
APPEALS IS EXHAUSTED. 

FN11  THE LEHIGH VALLEY CASE APPARENTLY ORIGINATED THE STATEMENT,
OFTEN MADE IN "NEGATIVE ORDER" CASES, THAT THE RISK RESULTS FROM THE
STATUTE, NOT FROM THE ORDER.  BUT THIS FORMULA HARDLY SQUARES WITH THE
ACTUALITIES OF THE SITUATION IN THAT CASE.  THE PANAMA CANAL ACT,
PARAGRAPHS 19-21 OF SEC. 5 OF THE ACT TO REGULATE COMMERCE, AS AMENDED,
FORBADE COMMUNITY OF INTEREST BETWEEN ANY COMMON CARRIER SUBJECT TO THE
ACT AND A COMPETING WATER CARRIER.  UNDER PARAGRAPH 20, JURISDICTION
WAS CONFERRED ON THE COMMISSION TO DETERMINE QUESTIONS OF FACT AS TO
THE EXISTENCE OF ACTUAL OR POTENTIAL COMPETITIVE CONDITIONS, EITHER ON
THE APPLICATION OF THE CARRIER OR ON THE COMMISSION'S MOTION, ITS
DETERMINATION TO BE FILED.  UNDER PARAGRAPH 21, THE COMMISSION WAS
GIVEN JURISDICTION TO EXTEND THE TIME WITHIN WHICH OPERATIONS OTHERWISE
PROHIBITED BY THE STATUTE MIGHT BE CARRIED ON AFTER JULY 1, 1914, IF
SUCH EXTENSION DID NOT REDUCE COMPETITION AND BENEFITED THE PUBLIC. 
AFTER RECEIPT OF NOTICE OF THE ACT FROM THE COMMISSION, THE LEHIGH
APPLIED TO THE COMMISSION FOR A RULING THAT IT WAS NOT SUBJECT TO THE
ACT, OR, IN THE ALTERNATIVE, FOR AN EXTENSION.  THE COMMISSION ISSUED
AN ORDER SUBJECTING THE LEHIGH TO THE ACT AND DENYING AN EXTENSION. 
THEREUPON THE LEHIGH BROUGHT A SUIT TO SET ASIDE THIS ORDER AND TO
ENJOIN THE COMMISSION FROM ENFORCING IT. 

AS A PRACTICAL MATTER THE RISK OF PROSECUTION TO WHICH THE LEHIGH WAS
SUBJECTED IF IT WISHED TO CONTINUE TO OPERATE ITS BOATS WAS THE RESULT
OF THE ORDER.  SINCE THE PANAMA CANAL ACT PROVIDED THAT THE COMMISSION
SHOULD FIND THE FACTS UNDER IT, THERE COULD HAVE BEEN NO PROSECUTION
WITHOUT A PREVIOUS FINDING BY THE COMMISSION THAT THE LEHIGH WAS WITHIN
THE ACT; ONCE SUCH A FINDING WAS MADE IT WAS SUBJECT TO THE RULE OF
ADMINISTRATIVE FINALITY.  COMPARE KEOGH V. CHICAGO & N.W. RY. CO., 260
U.S. 156.  THEREFORE THE COMMISSION'S ORDER THAT THE LEHIGH WAS SUBJECT
TO THE PANAMA CANAL ACT WAS RESPONSIBLE FOR THE RISK, AS MUCH SO AS IF
IT HAD EXPRESSLY COMMANDED THE LEHIGH TO STOP RUNNING ITS BOAT LINES. 
AND ASSUMING THE LEHIGH WAS WITHIN THE PROHIBITION OF THE STATUTE, THE
COMMISSION'S ORDER DENYING AN EXCEPTION HAD THE SAME PRACTICAL EFFECT
AS A DIRECT COMMAND.  INTERMOUNTAIN RATE CASES, 234 U.S. 476. 

PIEDMONT & NORTHERN RY. CO. V. UNITED STATES, 280 U.S. 469, PRESENTS
A MORE COMPLICATED SITUATION.  SECTION 1(18-22) OF THE ACT TO REGULATE
COMMERCE, AS AMENDED, PROHIBITS ANY COMMON CARRIER BY RAIL SUBJECT TO
THE ACT FROM EXTENDING ITS LINES OR CONSTRUCTING NEW LINES WITHOUT A
CERTIFICATE OF CONVENIENCE AND NECESSITY.  THIS REQUIREMENT DID NOT
APPLY TO "INTERURBAN ELECTRIC RAILWAYS, WHICH ARE NOT OPERATED AS A
PART OR PARTS OF A GENERAL STEAM RAILROAD ROAD SYSTEM OF
TRANSPORTATION."  UPON AN APPLICATION FOR A CERTIFICATE BY THE PIEDMONT
& NORTHERN, COUPLED WITH A MOTION TO DISMISS ON THE GROUND THAT IT WAS
AN "INTERURBAN ELECTRIC" RAILWAY, FOR WHICH NO CERTIFICATE WAS
REQUIRED, THE COMMISSION DENIED THE MOTION TO DISMISS AND DENIED THE
CERTIFICATE ON THE MERITS.  THE BILL TO ENJOIN THE COMMISSION FROM
TAKING ANY PROCEEDINGS AGAINST THE PIEDMONT & NORTHERN UNDER THIS ORDER
ATTACKED THE ACTION OF THE COMMISSION SOLELY ON ITS ASSUMPTION OF
JURISDICTION.  THE COURT HELD THE ORDER WAS NOT REVIEWABLE, ON THE
GROUND THAT THE ORDER DID NOT ADJUDICATE THE RAILROAD'S STATUS, DID NOT
COMMAND IT TO DO ANYTHING, BUT ONLY HAD THE EFFECT OF INCREASING THE
PIEDMONT'S DOUBTS AS TO THE CORRECTNESS OF ITS CONSTRUCTION OF THE
STATUTE.  TO BE SURE, STATUTORY CONSTRUCTION IS A JUDICIAL FUNCTION. 
BUT THIS IS TO VIEW THE MATTER TOO ABSTRACTLY.  FOR THE COMMISSION
ITSELF HAD INSTITUTED THE SYSTEM WHEREBY IT REQUESTED PRELIMINARY
SUBMISSION TO IT OF THE STATUS OF "INTERURBAN" ROADS.  SUCH A DECISION
WAS AT LEAST THE EQUIVALENT OF A THREAT OF PROSECUTION UNDER THE
STATUTE, AND, IN FACT, CONSIDERABLE WEIGHT IS GIVEN TO ADMINISTRATIVE
PRACTICE IN ASCERTAINING THE MEANING OF SUCH LEGISLATION.  COMPARE
UNITED STATES V. VILLAGE OF HUBBARD, 266 U.S. 474. 

FN12  THE INITIAL DECISION IN THIS GROUP OF CASES, THE INTERMOUNTAIN
RATE CASES, 234 U.S. 476, HELD REVIEWABLE THE ACTION OF THE COMMISSION
IN REFUSING TO GRANT REQUESTED CONSENT TO DEPART FROM THE LONG-SHORT
HAUL CLAUSE.  (SEC. 4 OF THE ACT TO REGULATE COMMERCE, AS AMENDED.) 
WHILE THIS CASE WOULD SEEM TO CONTROL THE LEHIGH VALLEY CASE AND AT
LEAST TO BE PERSUASIVE IN THE PIEDMONT & NORTHERN CASE, IT WAS NOT
MENTIONED IN THEM.  AFTER THESE TWO CASES, SUBSEQUENT DECISIONS IN THIS
GROUP INDICATED THAT THE "NEGATIVE ORDER" DOCTRINE MIGHT PREVENT REVIEW
OF THE REFUSAL BY THE SECRETARY OF AGRICULTURE TO ACCEPT RATES FOR
FILING, THE PACKERS AND STOCKYARDS ACT PROHIBITING THE CHARGING OF
RATES EXCEPT THOSE ON FILE WITH THE SECRETARY, UNITED STATES V.
CORRICK, 298 U.S. 435, AND OF THE REFUSAL TO GRANT AN INCREASE IN RATES
OF COMPENSATION FOR CARRYING OF MAIL, THE RAILWAY MAIL PAY ACT OF 1916
REQUIRING THE CARRIER TO CARRY THE MAIL AT THE RATE SET, UNITED STATES
V. GRIFFIN, 303 U.S. 226.  BUT IN BOTH THESE DECISIONS THE RESULT
REACHED WAS SUPPORTED BY FACTORS IRRELEVANT TO THE PRESENT DISCUSSION. 
ON THE OTHER HAND, IN POWELL V. UNITED STATES, 300 U.S. 276, ACTION OF
THE COMMISSION, STRIKING FROM ITS FILES A TARIFF ON THE GROUND THAT A
POINT WAS NOT SERVED BY THE CARRIER, WAS HELD SUBJECT TO REVIEW AS A
COMMAND TO THE RAILWAY WHICH HAD FILED THE TARIFF NOT TO GIVE THE
SERVICE COVERED BY THE TARIFF. 

FN13  THE CHICAGO JUNCTION CASE, 264 U.S. 258; VENNER V. MICHIGAN
CENTRAL R. CO., 271 U.S. 127; COLORADO V. UNITED STATES, 271 U.S. 153;
CLAIBORNE-ANNAPOLIS FERRY CO. V. UNITED STATES, 285 U.S. 382; UNITED
STATES V. IDAHO, 298 U.S. 105. 

FN14  "...  WE HAVE LEARNED OF NO INSTANCE WHERE IT WAS HELD OR EVEN
SERIOUSLY ASSERTED, THAT AS TO SUBJECTS WHICH IN THEIR NATURE WERE
ADMINISTRATIVE AND WITHIN THE COMPETENCY OF THE COMMISSION TO DECIDE,
THERE WAS POWER IN A COURT, BY AN EXERCISE OF ORIGINAL ACTION, TO
ENFORCE ITS CONCEPTIONS AS TO THE MEANING OF THE ACT TO REGULATE
COMMERCE BY DEALING DIRECTLY WITH THE SUBJECT IRRESPECTIVE OF ANY PRIOR
AFFIRMATIVE COMMAND OR ACTION BY THE INTERSTATE COMMERCE COMMISSION. 
ON THE CONTRARY, BY A LONG LINE OF DECISIONS, WHEREBY APPLICATIONS TO
ENFORCE ORDERS OF THE COMMISSION WERE CONSIDERED AND DISPOSED OF OR
WHERE REQUESTS TO RESTRAIN THE ENFORCEMENT OF SUCH ORDERS WERE PASSED
UPON, IT APPEARS BY THE REASONING INDULGED IN THAT IT WAS NEVER
CONSIDERED THAT THERE WAS POWER IN THE COURTS AS AN ORIGINAL QUESTION
WITHOUT PREVIOUS AFFIRMATIVE ACTION BY THE COMMISSION TO DEAL WITH WHAT
MIGHT BE TERMED IN A BROAD SENSE THE ADMINISTRATIVE FEATURES OF THE ACT
TO REGULATE COMMERCE BY DETERMINING AS AN ORIGINAL QUESTION THAT THERE
HAD BEEN A COMPLIANCE OR NONCOMPLIANCE WITH THE PROVISIONS OF THE
ACT."  225 U.S. AT 296-97.  "  ...  THE RECOGNITION OF A RIGHT IN A
COURT TO ASSERT THE POWER NOW CLAIMED WOULD OF NECESSITY AMOUNT TO A
SUBSTITUTION OF THE COURT FOR THE COMMISSION OR AT ALL EVENTS WOULD BE
TO CREATE A DIVIDED AUTHORITY ON A MATTER WHERE FROM THE BEGINNING
PRIMARY SINGLENESS OF ACTION AND UNITY WAS DEEMED TO BE IMPERATIVE." 
225 U.S. AT 298-99. 

FN15  SEE CHIEF JUSTICE TAFT'S ESTIMATE OF THE SERVICES OF CHIEF
JUSTICE WHITE IN "A NEW FIELD OF ADMINISTRATIVE LAW":  "THE CAPITAL
IMPORTANCE WHICH OUR RAILROAD SYSTEM HAS COME TO HAVE IN THE WELFARE OF
THIS COUNTRY MADE THE JUDICIAL CONSTRUCTION OF THE INTERSTATE COMMERCE
ACT OF CRITICAL MOMENT.  IT IS NOT TOO MUCH TO SAY THAT CHIEF JUSTICE
WHITE IN CONSTRUING THE MEASURE AND ITS GREAT AMENDMENTS HAS HAD MORE
TO DO WITH PLACING THIS VITAL PART OF OUR PRACTICAL GOVERNMENT ON A
USEFUL BASIS THAN ANY OTHER JUDGE.  HIS OPINIONS IN THE CASE OF THE
TEXAS & PACIFIC RAILWAY CO. V. THE ABILENE COTTON OIL CO., AND THE
CASES WHICH FOLLOWED IT, ARE MODELS OF CLEAR AND SATISFACTORY REASONING
WHICH GAVE TO THE PEOPLE, TO STATE LEGISLATURES, TO CONGRESS, AND THE
COURTS A MUCH-NEEDED KNOWLEDGE OF THE PRACTICAL FUNCTIONS THE COMMERCE
COMMISSION WAS TO DISCHARGE, AND OF HOW THEY WERE TO BE RECONCILED TO
EXISTING GOVERNMENTAL MACHINERY, FOR THE VINDICATION OF THE RIGHTS OF
THE PUBLIC IN RESPECT OF NATIONAL TRANSPORTATION.  THEY ARE A
CONSPICUOUS INSTANCE OF HIS UNUSUAL AND REMARKABLE POWER AND FACILITY
IN STATESMANLIKE INTERPRETATION OF STATUTE LAW."  PROCEEDINGS ON THE
DEATH OF CHIEF JUSTICE WHITE, 257 U.S. V, XXV. 

FN16  34 STAT. 584. 

FN17  36 STAT. 539. 

FN18  LAWS OF NEW YORK, ONE HUNDRED AND THIRTIETH SESSION, C.
429(1907). 

FN19  WISCONSIN LAWS OF 1907, C. 499, ST. 1797 M. 

FN20  SEE, E.G., HUGHES, SOME ASPECTS OF THE DEVELOPMENT OF AMERICAN
LAW (1916) 39 N.Y.B.A. REP. 266, 269-70; ROOT, PUBLIC SERVICE BY THE
BAR (1916) 41 A.B.A. REP. 355, 368-69; SUTHERLAND, PRIVATE RIGHTS AND
GOVERNMENT CONTROL (1917) 42 A.B.A. 197. 

FN21  INTERSTATE COMMERCE COMM'N V. BAIRD, 194 U.S. 25, 44;
INTERSTATE COMMERCE COMM'N V. LOUISVILLE & NASHVILLE R. CO., 227 U.S.
88, 93; UNITED STATES V. ABILENE & SOUTHERN RY. CO., 265 U.S. 274, 288;
COMPARE DOUGLAS V. NOBLE, 261 U.S. 165, 169.  "IT IS, PERHAPS, NOT TOO
MUCH TO SAY THAT NOT A SINGLE CASE ARISING BEFORE THE COMMISSION COULD
BE PROPERLY DECIDED IF THE COMPLAINANT, THE RAILROAD, OR THE COMMISSION
WERE BOUND BY THE RULES OF EVIDENCE APPLYING TO THE INTRODUCTION OF
TESTIMONY IN COURTS."  TWENTY-SECOND ANNUAL REPORT OF THE INTERSTATE
COMMERCE COMMISSION, 10. 

FN22  SEE, ALSO, E.G., BALTIMORE & OHIO R. CO. V. UNITED STATES EX
REL. PITCAIRN COAL CO., 215 U.S. 481; ROBINSON V. BALTIMORE & OHIO R.
CO., 222 U.S. 506; UNITED STATES V. PACIFIC & ARCTIC CO., 228 U.S. 87;
TEXAS & PACIFIC RY. CO. V. AMERICAN TIE CO., 234 U.S. 138; NORTHERN
PACIFIC RY. CO. V. SOLUM, 247 U.S. 477; DIRECTOR GENERAL V. VISCOSE
CO., 254 U.S. 498; DAYTON-GOOSE CREEK RY. CO. V. UNITED STATES, 263
U.S. 456; WESTERN & ATLANTIC R. CO. V. GEORGIA PUBLIC SERVICE COMM'N,
267 U.S. 493; MIDLAND VALLEY R. CO. V. BARKLEY, 276 U.S. 482; BOARD OF
RAILROAD COMM'RS V. GREAT NORTHERN RY. CO., 281 U.S. 412.  THE DOCTRINE
HAS BEEN GIVEN GENERAL APPLICATION, E.G., UNITED STATES NAVIGATION CO.
V. CUNARD STEAMSHIP CO., 284 U.S. 474(SHIPPING BOARD); MYERS V.
BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41(NATIONAL LABOR RELATIONS
BOARD).  COMPARE, ALSO, PRENTIS V. ATLANTIC COAST LINE CO., 211 U.S.
210; ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337. 

FN23  IN MANUFACTURERS RAILWAY CO. V. UNITED STATES, 246 U.S. 457,
THE COURT TREATED AS REVIEWABLE THE ACTION OF THE COMMISSION IN FAILING
TO REQUIRE AN ABSORPTION OF SWITCHING CHARGES OR A REQUESTED JOINT RATE
BUT HELD NOT REVIEWABLE REFUSAL TO FIX DIVISIONS.  IN PART THIS MAY
HAVE BEEN ON THE THEORY THAT THE ISSUE OF THE DIVISIONS WAS NOT
PROPERLY BEFORE THE COMMISSION.  SEE 246 U.S. AT 482-483.  IN UNITED
STATES V. NEW RIVER CO., 265 U.S. 533, THE COURT HELD REVIEWABLE THE
ACTION OF THE FULL COMMISSION DISMISSING A COMPLAINT BY A SHIPPER
AGAINST CERTAIN CAR PRACTICES HELD INVALID BY ONE DIVISION OF THE
COMMISSION.  STANDARD OIL CO. V. UNITED STATES, 283 U.S. 235, HELD NOT
REVIEWABLE THE ACTION OF THE COMMISSION REFUSING TO GRANT REPARATIONS,
BUT THE MAIN BASIS OF THE DECISION WAS NOT THE "NEGATIVE ORDER"
DOCTRINE BUT THE STATUTORY SCHEME DEALING WITH REPARATIONS.  IN ALTON
R. CO. V. UNITED STATES, 287 U.S. 229, THE COURT HELD REVIEWABLE THE
ACTION OF THE COMMISSION REFUSING TO INTERFERE WITH DIVISIONS SET BY A
RAILROAD IN VIOLATION OF A PREVIOUS AGREEMENT, THE COURT STATING THAT
THE ACTION OF THE COMMISSION VALIDATED DIVISIONS WHICH WERE PREVIOUSLY
INVALID.  SEE 287 U.S. AT 236-237. 

FN24  THE ONLY TEST WHICH CAN BE DERIVED FROM THE CASES IN NOTES 11
13, 23, SUPRA, IS THAT AN ORDER IS "AFFIRMATIVE" IF IT HAS THE LEGAL
EFFECT OF CHANGING THE STATUS QUO, PERMITTING WHAT WAS PREVIOUSLY NOT
ALLOWED OR COMPELLING WHAT WAS PREVIOUSLY NOT REQUIRED.  BUT ON THIS
TEST THE ORDER IN THE LEHIGH VALLEY CASE WAS "AFFIRMATIVE."  THE
DECISION IN THE NEW RIVER COAL CO. CASE COULD HARDLY BE HUNG ON SUCH A
GOSSAMER THREAD AS THIS TEST, SINCE THERE THE ONLY CHANGE IN THE STATUS
QUO RESULTING FROM AN ORDER CONSIDERED "AFFIRMATIVE" WAS THAT THE ORDER
OF THE FULL COMMISSION HELD UNOBJECTIONABLE A CAR PRACTICE WHICH WAS
THE SUBJECT OF COMPLAINT.  A DIVISION OF THE COMMISSION IN THE SAME
PROCEEDING HAD STATED THAT THE PRACTICE WAS INVALID AND SHOULD BE
ABANDONED AND IT WAS ABANDONED.  AFTER THE FULL COMMISSION FOUND THE
PRACTICE NOT INVALID AND DISMISSED THE COMPLAINT, THE PRACTICE WAS
ADOPTED AGAIN. 

FN25  SEE ALTON R. CO. V. UNITED STATES, 287 U.S. 229, 235. 

FN26  THIS BECOMES CLEAR ON ANALYSIS OF THE PRECISE PROBLEM PRESENTED
IN THE PROCTER & GAMBLE CASE.  IT WAS A DISPUTE BETWEEN SHIPPERS WHO
OWNED PRIVATE CARS AND THOSE WHO DID NOT AS TO THE DISTRIBUTION OF THE
CARS OWNED BY THE CARRIERS.  THE COMMISSION WAS CALLED UPON TO RESOLVE
THAT ECONOMIC CONFLICT BY VIRTUE OF ITS AUTHORITY TO PREVENT PRACTICES
WHICH UNFAIRLY DISCRIMINATED AGAINST ONE GROUP AT THE EXPENSE OF THE
OTHER.  ITS FINAL DECISION WAS BASED ON A COMPREHENSIVE POLICY
CONCERNING THE PLACE OF PRIVATE CARS IN OUR TRANSPORTATION SYSTEM.  HAD
THE PRIOR PRACTICE OF THE CARRIERS BEEN INCONSISTENT WITH THIS POLICY,
AND THE ORDER OF THE COMMISSION COMPELLED A CHANGE, THE PRIVATE CAR
SHIPPERS WOULD ADMITTEDLY HAVE BEEN ENTITLED TO TEST THE VALIDITY OF
THE COMMISSION RULING IN THE COURTS, SUBJECT, OF COURSE, TO THE CANONS
OF ADMINISTRATIVE FINALITY.  IT SEEMS CAPRICIOUS THAT THE FACT THAT THE
COMMISSION'S ORDER AUTHORIZING THE PRESERVATION OF THE STATUS QUO
SHOULD BLOCK ANY REVIEW AT ALL.  THE FORCE OF THIS REASONING IS
EMPHASIZED WHEN IT IS REALIZED WHAT SMALL FACTORS MAY DETERMINE WHETHER
THE STATUS QUO HAS BEEN CHANGED, E.G., A DIFFERENCE OF VIEWS WITHIN THE
COMMISSION, AS IN THE NEW RIVER COAL CO. CASE, SUPRA, NOTE 24.  SEE THE
OPINION OF THE COMMERCE COURT SUSTAINING REVIEWABILITY IN PROCTER &
GAMBLE CO. V. UNITED STATES, 188 F. 221. 

FN27  THE RESTATEMENT OF TORTS DOES NOT EMPLOY THIS NOMENCLATURE. 
SEE, ALSO, 7, LABATT, MASTER AND SERVANT, SEC. 2586. 

FN28  COMPARE INLAND STEEL CO. V. UNITED STATES, 306 U.S. 153, 157:
"  ...  THE COMMISSION WAS ACTING IN THE INTEREST OF SHIPPERS GENERALLY
AND IN BEHALF OF THE PUBLIC AND THE NATIONAL RAILROAD SYSTEM." 

FN29  IN THE PROCTER & GAMBLE CASE THE JUDICIAL RELIEF ASKED WAS THAT
THE ORDER OF THE COMMISSION DISMISSING THE COMPLAINT AGAINST THE
DEMURRAGE RULES BE ANNULLED AND THAT THE CARRIERS BE ENJOINED FROM
APPLYING THOSE RULES.  IN THE NEW RIVER COAL CO. CASE THE JUDICIAL
RELIEF ASKED WAS THAT THE CAR RULE UNDER ATTACK BE ADJUDGED INVALID,
THAT THE ORDER OF THE COMMISSION DISMISSING THE COMPLAINT AGAINST IT BE
ADJUDGED INVALID, THAT THE CARRIERS BE ENJOINED FROM COMPLYING WITH THE
RULE AND THAT THE COMMISSION BE ENJOINED FROM RESTRICTING THE COMMERCE
OF THE COMPLAINANTS BY ITS ORDER AND BY THE RULE. 

IN THE LEHIGH VALLEY CASE THE JUDICIAL RELIEF ASKED WAS THAT THE
ENFORCEMENT OF THE ORDER OF THE COMMISSION AND THE INSTITUTION OF ANY
PROCEEDINGS THEREUNDER AGAINST THE COMPLAINANT BE ENJOINED.  IN THE
INTERMOUNTAIN RATE CASES THE JUDICIAL RELIEF ASKED WAS THAT THE ORDER
OF THE COMMISSION BE SET ASIDE, THAT SEC. 4 OF THE ACT TO REGULATE
COMMERCE BE DECLARED INVALID, AND THAT THE COMMISSION AND THE ATTORNEY
GENERAL BE ENJOINED FROM TAKING ANY PROCEEDINGS TO PROSECUTE THE
CARRIERS FOR VIOLATION OF SEC. 4. 

FN30  COMPARE UNITED STATES V. ATLANTA, B. & C.R. CO., 282 U.S. 522. 

FN31  SEE HOUSE REPORT 1850, 73D CONG., 2D SESS., 4-5; COMPARE 78
CONG. REC. 8446. 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 

MR. JUSTICE BUTLER. 

APPELLANT'S COMPLAINT SHOWS THAT PRIOR TO MAKING ITS FINAL ORDER
NOVEMBER 18, 1936, THE COMMISSION MADE GENERAL ORDERS 1, 2, 3, 5, 6A
AND 9, DIRECTING THAT EVERY TELEPHONE CARRIER SUBJECT TO THE ACT FILE
STATEMENTS CONCERNING ITS BUSINESS AND AFFAIRS.  DECLINING TO RECOGNIZE
THE ACT AS APPLYING TO IT, APPELLANT WITHHELD COMPLIANCE.  THE
COMMISSION ORDERED IT TO OBEY OR TO FILE ANSWER SETTING FORTH THE FACTS
ON WHICH IT RELIED AS JUSTIFICATION FOR FAILURE SO TO DO. APPELLANT
THEN APPLIED TO THE COMMISSION FOR DETERMINATION THAT IT IS NOT SUBJECT
TO THE ACT OR THE COMMISSION'S JURISDICTION BECAUSE EXEMPTED UNDER SEC.
2(B)(2).  AFTER HEARING, THE COMMISSION MADE THE FINAL ORDER DECLARING
APPELLANT SUBJECT TO ALL COMMON CARRIER PROVISIONS OF THE ACT "AND,
THEREFORE, SUBJECT TO ALL ORDERS OF THE TELEPHONE DIVISION APPLICABLE
TO WIRE TELEPHONE CARRIERS ...  "  THUS PLAINLY IT MADE THE GENERAL
ORDERS ABOVE MENTIONED APPLICABLE TO APPELLANT. 

THE COMPLAINT CHALLENGED THE VALIDITY OF THESE ORDERS ON THE GROUND
INTER ALIA THAT APPELLANT AS A MATTER OF LAW IS, AND BY THE EVIDENCE
AND FACTS FOUND BY THE COMMISSION IS SHOWN TO BE, NOT SUBJECT TO ANY OF
THEM.  THE PRAYER IS FOR DECREE "SETTING ASIDE AND ANNULLING SAID
ORDERS  ... AND EACH AND ALL OF THEM AND ENJOINING THE ENFORCEMENT OF"
THEM.  IN THE DISTRICT COURT, APPELLEES RAISED NO QUESTION AS TO ITS
JURISDICTION.  BUT HERE THEY ARGUE:  THE COMMISSION'S DETERMINATION
CLASSIFYING THE APPELLANT AS SUBJECT TO ITS JURISDICTION AND TO THE
GENERAL ORDERS IS NOT AN ORDER REVIEWABLE UNDER THE TERMS OF THE URGENT
DEFICIENCIES ACT OF 1913; THE DETERMINATION NEITHER COMMANDS NOR
DIRECTS APPELLANT TO DO OR REFRAIN FROM DOING ANYTHING; THE COMMISSION
COULD NOT HAVE INSTITUTED A PROCEEDING TO ENFORCE IT AND CONSEQUENTLY
THE COURT HAS NO JURISDICTION TO SET IT ASIDE. 

THE FINAL ORDER IS MUCH MORE THAN A MERE DETERMINATION THAT APPELLANT
IS SUBJECT TO THE ACT.  WHEN READ, AS IT MUST BE, IN CONNECTION WITH
THE GENERAL ORDERS, IT UNMISTAKABLY PUTS APPELLANT UNDER A SERIES OF
AFFIRMATIVE MANDATES WHICH, IF VALID, MAY BE ENFORCED UNDER THE ACT. 
SEE 47 U.S.C. SECS. 401, 409, 501, 502; 28 U.S.C. SEC. 47, MADE
APPLICABLE BY 47 U.S.C. SEC. 402A.  THESE UNEQUIVOCALLY IMPOSE UPON
APPELLANT BURDEN AND EXPENSE OF PREPARING AND REPORTING TO THE
COMMISSION A VAST AMOUNT OF STATISTICAL AND OTHER INFORMATION. 

THE CASE PRESENTS NO DEBATABLE QUESTION AS TO THE JURISDICTION OF THE
DISTRICT COURT.  A STATEMENT OF THE FACTS ALLEGED CONCLUSIVELY SHOWS
THAT IN PURPOSE, TERMS AND EFFECT THE FINAL ORDER CONSTITUTES NOT MERE
DETERMINATION OR DECLARATION BUT AFFIRMATIVE COMMANDS.  THERE IS NO
OCCASION TO REVIEW EARLIER DECISIONS DEALING WITH AFFIRMATIVE AND
NEGATIVE ADMINISTRATIVE ORDERS AND OBVIOUSLY NONE TO OVERRULE ANY OF
THEM OR TO REPUDIATE OR IMPAIR THE DOCTRINE THEY ESTABLISH.* THE
COURT'S DISCUSSION, EXTRANEOUS TO THE ISSUE INVOLVED, CONFUSES RATHER
THAN CLARIFIES. 

*SEE E.G.:  PROCTER & GAMBLE V. UNITED STATES, (1912) 225 U.S. 282,
292 ET SEQ. HOOKER V. KNAPP, 225 U.S. 302.  UNITED STATES V. BALTIMORE
& OHIO R. CO., 225 U.S. 306, 320.  LEHIGH VALLEY R. CO. V. UNITED
STATES, 243 U.S. 412.  UNITED STATES V. ILLINOIS CENTRAL R. CO., 244
U.S. 82, 89.  CHICAGO JUNCTION CASE, 264 U.S. 258, 263-264.  UNITED
STATES V. NEW RIVER CO., 265 U.S. 533, 539-541.  DELAWARE & HUDSON CO.
V. UNITED STATES, 266 U.S. 438, 448.  MINNEAPOLIS & ST. L.R. CO. V.
PEORIA RY. CO., 270 U.S. 580.  COLORADO V. UNITED STATES, 271 U.S. 153,
161.  UNITED STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299, 309. 
GT. NORTHERN RY. CO. V. UNITED STATES, 277 U.S. 172.  PIEDMONT & N. RY.
CO. V. UNITED STATES, 280 U.S. 469, 475-477.  UNITED STATES V. ATLANTA,
B. & C.R. CO., 282 U.S. 522.  STANDARD OIL CO. V. UNITED STATES, 283
U.S. 235.  ALTON R. CO. V. UNITED STATES, 287 U.S. 229.  UNITED STATES
V. B. & O.R. CO., 293 U.S. 454.  POWELL V. UNITED STATES, 300 U.S. 276,
284.  UNITED STATES V. GRIFFIN, 303 U.S. 226, 232 ET SEQ. SHANNAHAN V.
UNITED STATES, 303 U.S. 596, 599. 

THE FINDINGS OF THE DISTRICT COURT ARE AMPLY SUSTAINED BY THE
EVIDENCE, AND ITS DECREE SHOULD BE AFFIRMED. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 
..END :






UNITED STATES V. MAHER, 307 U.S. 148 


NO. 432.  ARGUED FEBRUARY 6, 1939.  - DECIDED APRIL 17, 1939.  - 23
F.SUPP.  810, REVERSED. 


1.  THE INTERSTATE COMMERCE COMMISSION DENIED AN APPLICATION OF A
COMMON CARRIER BY MOTOR VEHICLE FOR A CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY AUTHORIZING HIM TO OPERATE OVER A DESIGNATED ROUTE, AND
ORDERED HIM TO CEASE OPERATING, HOLDING INAPPLICABLE TO HIS CASE A
PROVISION OF SEC. 206(A) OF THE MOTOR CARRIER ACT, UPON WHICH HE
RELIED, WHEREBY CARRIERS IN BONA FIDE OPERATION ON JUNE 1, 1935, AND
SINCE ARE RELIEVED FROM FURTHER PROOF OF PUBLIC CONVENIENCE AND
NECESSITY.  HELD THAT THE CONSTRUCTION OF THE ACT IN THIS RULING IS
REVIEWABLE BY SUIT IN THE DISTRICT COURT TO SET ASIDE AND ANNUL THE
ORDER.  P. 152. 

2.  UNDER SEC. 206(A) OF THE MOTOR CARRIER ACT OF 1935, A CARRIER WHO
WAS IN BONA FIDE OPERATION AS A COMMON CARRIER BY MOTOR VEHICLE ON JUNE
1, 1935, OVER THE ROUTE OR ROUTES OR WITHIN THE TERRITORY FOR WHICH
APPLICATION IS MADE AND HAS SO OPERATED SINCE THAT TIME IS ENTITLED TO
A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY WITHOUT FURTHER PROOF
THAT PUBLIC CONVENIENCE AND NECESSITY WILL BE SERVED BY SUCH
OPERATION.  HELD INAPPLICABLE WHERE OPERATION OVER THE ROUTE APPLIED
FOR, BETWEEN FIXED TERMINI, BEGAN IN MAY, 1936, WHEREAS THE PREVIOUS
OPERATION WAS AN "ANYWHERE FOR HIRE" SERVICE THAT WAS ABANDONED WHEN
THE NEW ROUTE WAS INSTITUTED.  P. 154. 

3.  WHERE AN APPLICATION FOR A CERTIFICATE BASED SOLELY UPON THE
EXCEPTION IN SEC. 206(A) OF THE MOTOR CARRIER ACT IS FOUND UNSUPPORTED
BY THE EVIDENCE, THE COMMISSION IS NOT OBLIGED TO INQUIRE WHETHER IT
SHOULD BE ALLOWED UNDER THE GENERAL PROVISIONS OF SEC. 207(A).  P.
156. 

UNITED STATES ET AL. V. MAHER, DOING BUSINESS AS INTERSTATE BUSSES. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF OREGON. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH SET
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DENYING AN
APPLICATION FOR A CERTIFICATE UNDER THE MOTOR CARRIER ACT AND
COMMANDING THE APPLICANT TO CEASE AND DESIST FROM OPERATING. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON APPEAL, UNDER SEC. 238 OF THE JUDICIAL CODE AS
AMENDED (28 U.S.C. SEC. 345), TO REVIEW A FINAL DECREE, SETTING ASIDE
AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, GRANTED BY A DISTRICT
COURT OF THREE JUDGES UNDER THE MOTOR CARRIER ACT, 1935, (49 U.S.C.
SUPP. SEC. 305(H)), IN CONNECTION WITH THE URGENT DEFICIENCIES ACT OF
OCTOBER 22, 1913(28 U.S.C. SECS. 45, 47A). 

THE APPLICATION TO THE SPECIAL FACTS OF THIS CASE OF WHAT IS
COLLOQUIALLY KNOWN AS "THE GRANDFATHER CLAUSE" OF THE MOTOR CARRIER ACT
IS THE SUBSTANTIVE QUESTION AT ISSUE.  THERE IS A PRELIMINARY
JURISDICTIONAL PROBLEM TOUCHING THOSE PHASES OF THE RELATIONS OF THE
INTERSTATE COMMERCE COMMISSION TO THE COURTS WHICH ARE IMPLIED BY THE
CLAIM THAT THE COMMISSION HAD ISSUED A "NEGATIVE ORDER." 

543, FORBIDS COMMON CARRIERS BY MOTOR VEHICLE SUBJECT TO ITS PROVISIONS
FROM ENGAGING IN INTERSTATE OPERATIONS WITHOUT A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY TO BE ISSUED BY THE INTERSTATE COMMERCE
COMMISSION UNDER SEC. 207 OF THE ACT.  "THE GRANDFATHER CLAUSE" OF SEC.
206, HOWEVER, PROVIDES THAT "IF ANY SUCH CARRIER  ...  WAS IN BONA FIDE
OPERATION AS A COMMON CARRIER BY MOTOR VEHICLE ON JUNE 1, 1935, OVER
THE ROUTE OR ROUTES OR WITHIN THE TERRITORY FOR WHICH APPLICATION IS
MADE AND HAS SO OPERATED SINCE THAT TIME,  ...  THE COMMISSION SHALL
ISSUE SUCH CERTIFICATE WITHOUT REQUIRING FURTHER PROOF THAT PUBLIC
CONVENIENCE AND NECESSITY WILL BE SERVED BY SUCH OPERATION." 

ON JANUARY 24, 1936, THE APPELLEE, MAHER, FILED AN APPLICATION UNDER
THE "GRANDFATHER CLAUSE" FOR A CERTIFICATE TO ENGAGE IN THE
TRANSPORTATION OF PASSENGERS AND BAGGAGE OVER U.S. HIGHWAY NO. 99
BETWEEN PORTLAND AND SEATTLE AND INTERMEDIATE POINTS.  AFTER A HEARING
WAS HAD BEFORE A "JOINT BOARD" COMPOSED OF MEMBERS FROM THE STATES
INVOLVED (SECS. 203(A)(4) AND 205) AT WHICH COMPETING CARRIERS AND THE
PUBLIC UTILITIES COMMISSION OF OREGON APPEARED IN OPPOSITION TO THE
APPLICATION, AND AFTER A REPORT WAS FILED BY THE JOINT BOARD WITH THE
INTERSTATE COMMERCE COMMISSION RECOMMENDING THAT THE APPLICATION BE
DENIED, THE INTERSTATE COMMERCE COMMISSION, DIVISION 5, ON OCTOBER 27,
1937, FOUND THE FACTS TO BE AS FOLLOWS:  FROM 1931 UNTIL MAY 29, 1936,
THE APPELLEE HAD ENGAGED IN BONA FIDE "ANYWHERE-FOR-HIRE" OPERATIONS IN
OREGON WITH OCCASIONAL ENTRIES INTO WASHINGTON.  THERE WERE RARE TRIPS
TO SEATTLE, NO SERVICE AT ALL TO MOST OF THE INTERVENING POINTS, AND NO
SHOWING THAT PASSENGERS WERE TRANSPORTED ON RETURN TRIPS TO PORTLAND. 
ON MAY 29, 1936, THE APPELLEE BEGAN HIS REGULAR-ROUTE SERVICE BETWEEN
PORTLAND AND SEATTLE WHICH HE CONDUCTED REGULARLY SINCE THAT TIME.  BUT
UPON THE INSTITUTION OF THE REGULARROUTE SERVICE BETWEEN PORTLAND AND
SEATTLE THE APPELLEE DISCONTINUED THE "ANYWHERE-FOR-HIRE" OPERATIONS
THERETOFORE CONDUCTED.  UPON THIS SHOWING DIVISION 5 FOUND THAT THE
SERVICE CONDUCTED BY THE APPELLEE SINCE MAY 29, 1936, WAS A DIFFERENT
SERVICE FROM THAT CONDUCTED BY HIM PRIOR TO THAT TIME, AND THEREFORE
CONCLUDED THAT HE DID NOT COME WITHIN "THE GRANDFATHER CLAUSE."  AND
SO, THE COMMISSION DENIED MAHER'S APPLICATION AND ORDERED HIM "TO CEASE
AND DESIST" FROM "ALL OPERATIONS" AS A COMMON CARRIER IN INTERSTATE
COMMERCE.  THEREUPON THE APPELLEE FILED THE PRESENT SUIT IN THE
DISTRICT COURT FOR THE DISTRICT OF OREGON AGAINST THE UNITED STATES AND
THE INTERSTATE COMMERCE COMMISSION, PRAYING THAT THE COMMISSION'S ORDER
BE SET ASIDE AND "ANY CONSTRUCTION THEREUNDER" ENJOINED.  THE SUIT WAS
DISPOSED OF ON THE PLEADINGS, THE ANSWER OF THE COMMISSION HAVING
INCORPORATED ITS REPORT AND ORDERS.  A MAJORITY OF THE DISTRICT COURT
ENTERTAINED JURISDICTION AND HELD THAT THE APPELLEE WAS ENTITLED TO AN
"ANYWHERE-FOR-HIRE" PERMIT UNDER "THE GRANDFATHER CLAUSE" AS WELL AS
THE REGULAR-ROUTE PERMIT UNDER SEC. 207.  23 F.SUPP.  810.  CIRCUIT
JUDGE HANEY FOUND JURISDICTION TO REVIEW THE CEASE AND DESIST ORDER,
ALTHOUGH NOT THE ORDER DENYING THE CERTIFICATE OF CONVENIENCE AND
NECESSITY, BUT SUSTAINED THE COMMISSION'S VIEW OF THE ACT. 

THE JURISDICTIONAL PROBLEM PRESENTS ANOTHER INSTANCE OF THE
INTERSTATE COMMERCE COMMISSION HAVING BEEN INVESTED WITH POWER TO FREE
A COMPLAINANT OF RESTRICTIONS PLACED UPON HIS CONDUCT BY A STATUTORY
SCHEME AND HAVING DEFINITELY REJECTED THE CLAIM FOR DISPENSATION.  THE
APPLICANT BEFORE THE COMMISSION THEN CAME INTO COURT TO "SET ASIDE" AND
"ANNUL" THE "ORDER" OF THE INTERSTATE COMMERCE COMMISSION, CLAIMING
THAT THE COMMISSION'S ACTION WAS BASED ON A WRONG READING OF THE
AUTHORITY WHICH THE ACT OF CONGRESS GAVE IT.  TO THE HEARING OF SUCH A
CLAIM THERE IS NO JURISDICTIONAL BARRIER, AS WE HAVE HELD TODAY IN
ROCHESTER TELEPHONE CORP. V. UNITED STATES, ANTE, P. 125.  FN1 

ON THE MERITS THE CASE BRINGS INTO QUESTION THE VALIDITY OF THE
CONSTRUCTION PLACED BY THE INTERSTATE COMMERCE COMMISSION UPON SEC.
206(A) OF THE MOTOR CARRIER ACT RELIEVING CARRIERS OPERATING ON JUNE 1,
1935, UNDER THE CIRCUMSTANCES DEFINED BY THE TERMS OF SEC. 206(A) FROM
THE REQUIREMENTS OF SEC. 207.  FN2  THE LATTER SECTION REQUIRES A
FINDING BY THE COMMISSION THAT THE GRANTING OF SUCH A CERTIFICATE IS
DEMANDED BY PUBLIC CONVENIENCE AND NECESSITY.  BUT UNDER SEC. 206(A)
THE COMMISSION MUST ISSUE "SUCH CERTIFICATE WITHOUT REQUIRING FURTHER
PROOF THAT PUBLIC CONVENIENCE AND NECESSITY WILL BE SERVED" BY AN
APPLICANT WHO "WAS IN BONA FIDE OPERATION AS A COMMON CARRIER BY MOTOR
VEHICLE ON JUNE 1, 1935, OVER THE ROUTE OR ROUTES OR WITHIN THE
TERRITORY FOR WHICH APPLICATION WAS MADE AND HAS SO OPERATED SINCE THAT
TIME."  BY THIS LEGISLATION CONGRESS RESPONDED TO THE FELT NEED FOR
REGULATING INTERSTATE MOTOR TRANSPORTATION THROUGH FAMILIAR
ADMINISTRATIVE DEVICES, WHILE AT THE SAME TIME IT SATISFIED THE
DICTATES OF FAIRNESS BY AFFORDING SANCTION FOR ENTERPRISES THERETOFORE
ESTABLISHED.  WHETHER AN APPLICANT SEEKING EXEMPTION HAD IN FACT BEEN
IN OPERATION WITHIN THE IMMUNIZING PERIOD OF THE STATUTE WAS BOUND TO
RAISE CONTROVERTED MATTERS OF FACT.  THEIR DETERMINATION CONGRESS
ENTRUSTED TO THE COMMISSION.  THE LEGAL ISSUES PRESENTED BY THIS RECORD
ARE RELATIVELY SIMPLE ONCE THE SOMEWHAT CONFUSED OPERATIONS OF THE
APPELLEE'S BUSINESS ARE CLEARLY DEFINED. 

INVOKING THE "GRANDFATHER CLAUSE" THE APPELLEE SOUGHT FROM THE
COMMISSION A CERTIFICATE AUTHORIZING CONTINUANCE OF HIS REGULAR SERVICE
BETWEEN THE FIXED TERMINI OF PORTLAND AND SEATTLE ON U.S. HIGHWAY 99. 
BUT THE COMMISSION FOUND THAT THE REGULAR OPERATION OVER THIS ROUTE HAD
ONLY BEEN INSTITUTED ON MAY 29, 1936.  THERETOFORE, AND INCLUDING THE
CRUCIAL PERIOD PRIOR TO JUNE 1, 1935, THE APPELLEE HAD BEEN ENGAGED IN
QUITE DIFFERENT SERVICES FROM THOSE FOR WHICH IT ASKED A CERTIFICATE,
NAMELY, "AN IRREGULAR, SO-CALLED ANY WHERE-FOR-HIRE OPERATION IN OREGON
WITH OCCASIONAL TRIPS TO POINTS IN WASHINGTON" OVER ANY ROUTE ADAPTED
TO A PARTICULAR TRIP, BUT USING AT LEAST FOR PART OF THE DISTANCE U.S.
HIGHWAY 99 ON TRIPS TO WASHINGTON.  THESE IRREGULAR OPERATIONS WERE
DISCONTINUED AFTER THE APPELLEE'S REGULAR ROUTE WAS ESTABLISHED. 
APPLYING THESE FINDINGS WHICH ARE BINDING HERE, THE COMMISSION RULED
THAT THE APPELLEE DID NOT BRING HIMSELF WITHIN THE PRIVILEGE OF THE
"GRANDFATHER CLAUSE."  IN MAKING THIS APPLICATION OF THE STATUTE, THE
COMMISSION PROPERLY CONSTRUED IT. 

THE RECOGNIZED PRACTICES OF AN INDUSTRY GIVE LIFE TO THE DEAD WORDS
OF A STATUTE DEALING WITH IT.  IN DIFFERENTIATING BETWEEN OPERATIONS
OVER THE "ROUTE OR ROUTES" FOR WHICH AN APPLICATION UNDER THE
"GRANDFATHER CLAUSE" IS MADE AS AGAINST OPERATIONS "WITHIN THE
TERRITORY," CONGRESS PLAINLY ADOPTED THE FAMILIAR DISTINCTION BETWEEN
"ANYWHERE-FOR-HIRE" BUS OPERATIONS OVER IRREGULAR ROUTES AND REGULAR
ROUTE BUS OPERATIONS BETWEEN FIXED TERMINI.  FN3  SUCH RECOGNITION IS
IMPLICIT ALSO IN THE PROVISION OF SEC. 208(A) THAT "ANY CERTIFICATE
ISSUED UNDER SECTION 206 OR 207 SHALL SPECIFY THE SERVICE TO BE
RENDERED AND THE ROUTES OVER WHICH, THE FIXED TERMINI, IF ANY, BETWEEN
WHICH, AND THE INTERMEDIATE AND OFF-ROUTE POINTS, IF ANY, AT WHICH, AND
IN CASE OF OPERATIONS NOT OVER SPECIFIED ROUTES OR BETWEEN FIXED
TERMINI, THE TERRITORY WITHIN WHICH, THE MOTOR CARRIER IS AUTHORIZED TO
OPERATE."  SINCE THE NEW REGULAR ROUTE OF APPELLEE WAS NOT IN EXISTENCE
ON JUNE 1, 1935, AND THE IRREGULAR "ANYWHERE-FOR-HIRE" SERVICE WAS NOT
"SO OPERATED," AS REQUIRED BY SEC. 206, WHEN THE COMMISSION PASSED UPON
THE APPLICATION FOR A "GRANDFATHER" CERTIFICATE, THE COMMISSION RIGHTLY
REJECTED THE APPLICATION. 

BUT THE DISTRICT COURT SET ASIDE THE COMMISSION'S ORDER ON ANOTHER
GROUND.  IT HELD THAT WHEN THE COMMISSION REJECTED APPELLEE'S CLAIM
UNDER THE "GRANDFATHER CLAUSE" ANOTHER PROVISION OF SEC. 206(A) SPRANG
INTO RELEVANCE, TO WIT "OTHERWISE THE APPLICATION FOR SUCH CERTIFICATE
SHALL BE DECIDED IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR IN
DENIED ACCORDINGLY."  WE DO NOT READ THE STATUTE AS LAYING A COMPULSION
UPON THE COMMISSION TO CANVASS ALL THE QUESTIONS OF PUBLIC AND PRIVATE
INTEREST THAT ARE IMPLICIT IN AN APPLICATION FOR A CERTIFICATE BASED ON
"PUBLIC CONVENIENCE AND NECESSITY" WHEN THE APPLICANT HIMSELF ONLY
SEEKS THE FAVOR OF THE "GRANDFATHER CLAUSE" AND MAKES NO CLAIM, EITHER
BEFORE THE COMMISSION OR IN HIS BILL SEEKING TO ENJOIN ITS ACTION, TO
HAVE THE COMMISSION ACT OUTSIDE THE "GRANDFATHER CLAUSE."  REVERSED. 

FN1  FOR REASONS ON WHICH ITS LEGISLATIVE HISTORY APPEARS TO SHED NO
LIGHT, THE PHRASE "NEGATIVE ORDER" CREPT INTO SEC. 205 OF THE MOTOR
CARRIER ACT IN A CONTEXT NOT COVERING THE PRESENT SITUATION. 

FN2  "SEC.  206.  (A)  NO COMMON CARRIER BY MOTOR VEHICLE SUBJECT TO
THE PROVISIONS OF THIS PART SHALL ENGAGE IN ANY INTERSTATE OR FOREIGN
OPERATION ON ANY PUBLIC HIGHWAY, OR WITHIN ANY RESERVATION UNDER THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES, UNLESS THERE IS IN FORCE
WITH RESPECT TO SUCH CARRIER A CERTIFICATE OF PUBLIC CONVENIENCE AND
NECESSITY ISSUED BY THE COMMISSION AUTHORIZING SUCH OPERATIONS:
PROVIDED, HOWEVER, THAT, SUBJECT TO SECTION 210, IF ANY SUCH CARRIER OR
PREDECESSOR IN INTEREST WAS IN BONA FIDE OPERATION AS A COMMON CARRIER
BY MOTOR VEHICLE ON JUNE 1, 1935, OVER THE ROUTE OR ROUTES OR WITHIN
THE TERRITORY FOR WHICH APPLICATION IS MADE AND HAS SO OPERATED SINCE
THAT TIME, OR IF ENGAGED IN FURNISHING SEASONAL SERVICE ONLY, WAS IN
BONA FIDE OPERATION ON JUNE 1, 1935, DURING THE SEASON ORDINARILY
COVERED BY ITS OPERATION, EXCEPT IN EITHER INSTANCE AS TO INTERRUPTIONS
OF SERVICE OVER WHICH THE APPLICANT OR ITS PREDECESSOR IN INTEREST HAD
NO CONTROL, THE COMMISSION SHALL ISSUE SUCH CERTIFICATE WITHOUT
REQUIRING FURTHER PROOF THAT PUBLIC CONVENIENCE AND NECESSITY WILL BE
SERVED BY SUCH OPERATION, AND WITHOUT FURTHER PROCEEDINGS, IF
APPLICATION FOR SUCH CERTIFICATE IS MADE TO THE COMMISSION AS PROVIDED
IN PARAGRAPH (B) OF THIS SECTION AND WITHIN ONE HUNDRED AND TWENTY DAYS
AFTER THIS SECTION SHALL TAKE EFFECT, AND IF SUCH CARRIER WAS
REGISTERED ON JUNE 1, 1935, UNDER ANY CODE OF FAIR COMPETITION
REQUIRING REGISTRATION, THE FACT OF REGISTRATION SHALL BE EVIDENCE OF
BONA FIDE OPERATION TO BE CONSIDERED IN CONNECTION WITH THE ISSUANCE OF
SUCH CERTIFICATE.  OTHERWISE THE APPLICATION FOR SUCH CERTIFICATE SHALL
BE DECIDED IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR IN SECTION
207(A) OF THIS PART AND SUCH CERTIFICATE SHALL BE ISSUED OR DENIED
ACCORDINGLY.  PENDING THE DETERMINATION OF ANY SUCH APPLICATION THE
CONTINUANCE OF SUCH OPERATION SHALL BE LAWFUL:  AND PROVIDED FURTHER,
THAT THIS PARAGRAPH SHALL NOT BE SO CONSTRUED AS TO REQUIRE ANY SUCH
CARRIER LAWFULLY ENGAGED IN OPERATION SOLELY WITHIN ANY STATE TO OBTAIN
FROM THE COMMISSION A CERTIFICATE AUTHORIZING THE TRANSPORTATION BY
SUCH CARRIER OF PASSENGERS OR PROPERTY IN INTERSTATE OR FOREIGN
COMMERCE BETWEEN PLACES WITHIN SUCH STATE IF THERE BE A BOARD IN SUCH
STATE HAVING AUTHORITY TO GRANT OR APPROVE SUCH CERTIFICATES AND IF
SUCH CARRIER HAS OBTAINED SUCH CERTIFICATE FROM SUCH BOARD.  SUCH
TRANSPORTATION SHALL, HOWEVER, BE OTHERWISE SUBJECT TO THE JURISDICTION
OF THE COMMISSION UNDER THIS PART. 

"(B)  APPLICATION FOR CERTIFICATES SHALL BE MADE IN WRITING TO THE
COMMISSION, BE VERIFIED UNDER OATH, AND SHALL BE IN SUCH FORM AND
CONTAIN SUCH INFORMATION AND BE ACCOMPANIED BY PROOF OF SERVICE UPON
SUCH INTERESTED PARTIES AS THE COMMISSION SHALL, BY REGULATION,
REQUIRE.  ANY PERSON, NOT INCLUDED WITHIN THE PROVISIONS OF PARAGRAPH
(A) OF THIS SECTION, WHO OR WHICH IS ENGAGED IN TRANSPORTATION IN
INTERSTATE OR FOREIGN COMMERCE AS A COMMON CARRIER BY MOTOR VEHICLE
WHEN THIS SECTION TAKES EFFECT MAY CONTINUE SUCH OPERATION FOR A PERIOD
OF ONE HUNDRED AND TWENTY DAYS THEREAFTER WITHOUT A CERTIFICATE AND, IF
APPLICATION FOR SUCH CERTIFICATE IS MADE TO THE COMMISSION WITHIN SUCH
PERIOD, THE CARRIER MAY, UNDER SUCH REGULATIONS AS THE COMMISSION SHALL
PRESCRIBE, CONTINUE SUCH OPERATION UNTIL OTHERWISE ORDERED BY THE
COMMISSION.    "SEC. 207.  (A)  SUBJECT TO SECTION 210, A CERTIFICATE
SHALL BE ISSUED TO ANY QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE
WHOLE OR ANY PART OF THE OPERATIONS COVERED BY THE APPLICATION, IF IT
IS FOUND THAT THE APPLICANT IS FIT, WILLING, AND ABLE PROPERLY TO
PERFORM THE SERVICE PROPOSED AND TO CONFORM TO THE PROVISIONS OF THIS
PART AND THE REQUIREMENTS, RULES, AND REGULATIONS OF THE COMMISSION
THEREUNDER, AND THAT THE PROPOSED SERVICE, TO THE EXTENT TO BE
AUTHORIZED BY THE CERTIFICATE, IS OR WILL BE REQUIRED BY THE PRESENT OR
FUTURE PUBLIC CONVENIENCE AND NECESSITY; OTHERWISE SUCH APPLICATION
SHALL BE DENIED:  PROVIDED, HOWEVER, THAT NO SUCH CERTIFICATE SHALL BE
ISSUED TO ANY COMMON CARRIER OF PASSENGERS BY MOTOR VEHICLE FOR
OPERATIONS OVER OTHER THAN A REGULAR ROUTE OR ROUTES, AND BETWEEN FIXED
TERMINI, EXCEPT AS SUCH CARRIERS MAY BE AUTHORIZED TO ENGAGE IN SPECIAL
OR CHARTER OPERATIONS." 

FN3  SEE MOTOR BUS AND MOTOR TRUCK OPERATION, 140 I.C.C. 685, 699;
COORDINATION OF MOTOR TRANSPORTATION, 182 I.C.C. 263, 274.  SEE ALSO
COORDINATION OF MOTOR TRANSPORTATION, SEN. DOC. NO. 43, 72D CONG., 1ST
SESS., PP. 34-35; REGULATION OF TRANSPORTATION AGENCIES, SEN. DOC. NO.
152, 73D CONG., 2D SESS., PP. 176, 191-192. 
..END :




FED. POWER COMM'N V. PACIFIC CO., 307 U.S. 156 


NO. 508.  ARGUED MARCH 9, 1939.  - DECIDED APRIL 17, 1939.  - 98 F.2D
835, AFFIRMED. 


CONSOLIDATIONS, ACQUISITIONS, ETC. OF PUBLIC UTILITY FACILITIES WITHOUT
PRIOR AUTHORIZATION BY ORDER OF THE FEDERAL POWER COMMISSION, FURTHER
PROVIDES THAT IF THE COMMISSION AFTER NOTICE AND OPPORTUNITY FOR
HEARING FINDS THAT A PROPOSED DISPOSITION WILL BE CONSISTENT WITH THE
PUBLIC INTEREST, IT SHALL APPROVE THE SAME.  HELD: 

1.  THAT AN ORDER OF THE COMMISSION DENYING AN APPLICATION OF TWO
POWER COMPANIES FOR APPROVAL OF A PROPOSED TRANSFER, UPON THE GROUND
THAT THE APPLICANTS HAD FAILED TO ESTABLISH THAT THE TRANSFER WOULD BE
CONSISTENT WITH THE PUBLIC INTEREST, WAS REVIEWABLE ON QUESTIONS OF LAW
UNDER SEC. 313(B) OF THE ACT, WHICH PROVIDES THAT ANY PARTY TO A
PROCEEDING UNDER THE ACT AGGRIEVED BY AN ORDER ISSUED BY THE COMMISSION
IN SUCH PROCEEDING MAY OBTAIN REVIEW OF SUCH ORDER IN THE CIRCUIT COURT
OF APPEALS.  P. 159. 

2.  THE OBJECTION THAT REVIEW OF THE ORDER PRESENTS NO CASE OR
CONTROVERSY, BECAUSE THE COURT CAN NOT ITSELF APPROVE THE PROPOSED
TRANSFER, IS REJECTED, SINCE, WITHOUT INTRUDING UPON THE PROVINCE OF
THE COMMISSION, THE COURT CAN ADJUDICATE THE LEGAL PRINCIPLES INVOLVED
AND ITS JUDGMENT WILL BE FINAL AND BINDING ON THE COMMISSION.  P. 159. 

FEDERAL POWER COMMISSION V. PACIFIC POWER & LIGHT CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 305 U.S. 593, TO REVIEW AN ORDER OF THE COURT BELOW WHICH
DENIED A MOTION TO DISMISS A PETITION TO REVIEW AN ORDER OF THE FEDERAL
POWER COMMISSION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT, GRANTED BECAUSE OF THE INTRINSIC IMPORTANCE OF THE
ISSUE RAISED AND OF A CONFLICT BETWEEN THE DECISION BELOW, 98 F.2D 835,
AND THAT OF THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 
NEWPORT ELECTRIC CORP. V. FEDERAL POWER COMM'N, 97 F.2D 580(C.C.A.2D). 

THE SOLE ISSUE BEFORE US IS WHETHER AN ORDER OF THE FEDERAL POWER
COMMISSION, DENYING AN APPLICATION UNDER SEC. 203(A)  FN1  OF THE
FEDERAL POWER ACT AS AMENDED, (49 STAT. 849) IS REVIEWABLE UNDER SEC.
313(B) OF THAT ACT. 

THE INLAND POWER & LIGHT COMPANY, AN OREGON CORPORATION, OWNS THREE
HYDRO-ELECTRIC PROJECTS IN OREGON AND WASHINGTON, TWO OF WHICH ARE
OPERATED UNDER LICENSE OF THE FEDERAL POWER COMMISSION, AND THE THIRD,
UNDER A PERMIT ISSUED BY THE SECRETARY OF THE INTERIOR.  THE PACIFIC
POWER & LIGHT COMPANY, A MAINE CORPORATION, IS ENGAGED IN GENERATING
AND DISTRIBUTING ELECTRIC ENERGY IN WASHINGTON AND OREGON, AND OWNS AND
OPERATES FACILITIES FOR INTERSTATE TRANSMISSION OF ELECTRICITY.  THE
INLAND AND PACIFIC COMPANIES FILED A JOINT APPLICATION WITH THE POWER
COMMISSION FOR APPROVAL, UNDER SECS. 8 AND 203 OF THE ACT, OF A
PROPOSED TRANSFER OF ALL THE ASSETS, INCLUDING LICENSES, OF INLAND TO
PACIFIC, AND OF THE TERMINATION OF INLAND'S EXISTENCE.  HAVING FOUND
AFTER DUE HEARING AND CONSIDERATION THAT "APPLICANTS HAVE FAILED TO
ESTABLISH THAT SAID TRANSFER WILL BE CONSISTENT WITH THE PUBLIC
INTEREST WITHIN THE CONTEMPLATION OF SEC. 203(A) OF THE FEDERAL POWER
ACT," THE COMMISSION ORDERED THAT "THE APPLICATION BE AND THE SAME
HEREBY IS DENIED." 

INVOKING SEC. 313(B) OF THE FEDERAL POWER ACT, THE APPLICANTS
INITIATED THE PRESENT PROCEEDINGS IN THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT TO REVIEW THE ORDER OF THE COMMISSION AS UNWARRANTED
IN LAW AND UNSUPPORTED IN ITS FINDINGS.  THE EXACT SCOPE OF THE PRAYER
IS POSTPONED FOR LATER CONSIDERATION.  THE POWER COMMISSION CHALLENGED
THE JURISDICTION OF THE CIRCUIT COURT OF APPEALS BY A MOTION TO DISMISS
THE PETITION ON THE GROUND THAT THE COURT WAS WITHOUT JURISDICTION
UNDER SEC. 313(B), SINCE THE ORDER SOUGHT TO BE SET ASIDE WAS NEGATIVE
IN CHARACTER.  THE DENIAL OF THAT MOTION BROUGHT THE CASE HERE. 

IF THE FEDERAL POWER ACT HAD FORMALLY TAKEN OVER THE STATUTORY
PROVISIONS OF THE URGENT DEFICIENCIES ACT PERTAINING TO REVIEW OF
ORDERS OF THE INTERSTATE COMMERCE COMMISSION, THE DECISION IN ROCHESTER
TELEPHONE CORP. V. UNITED STATES, ANTE, P. 125, WOULD DISPOSE OF THIS
CASE AND SUSTAIN THE ASSUMPTION OF JURISDICTION BELOW.  BUT THE POWER
ACT CONTAINS A DISTINCTIVE FORMULATION OF THE CONDITIONS UNDER WHICH
RESORT TO THE COURTS MAY BE MADE AND CONGRESS DETERMINES THE SCOPE OF
JURISDICTION OF THE LOWER FEDERAL COURTS.  SECTION 313(B) PROVIDES THAT
"ANY PARTY TO A PROCEEDING UNDER THIS ACT AGGRIEVED BY AN ORDER ISSUED
BY THE COMMISSION IN SUCH PROCEEDING MAY OBTAIN REVIEW OF SUCH ORDER IN
THE CIRCUIT COURT OF APPEALS OF THE UNITED STATES."  THE DENIAL BY THE
COMMISSION OF APPROVAL OF THE APPLICATION BY PETITIONERS OF THE
TRANSFER OF INLAND TO PACIFIC AS NOT "CONSISTENT WITH THE PUBLIC
INTEREST" WAS AN "ORDER," AND THE PETITIONERS WERE "AGGRIEVED" BY IT
SINCE WITHOUT SUCH APPROVAL THE TRANSFER WAS FORBIDDEN.  SEC. 203(A). 
THUS THE STATUTORY SCHEME OF THE POWER ACT ONLY REINFORCES THE ANALYSIS
MADE IN THE ROCHESTER CASE. 

BUT IT IS URGED THAT REVIEW OF THE POWER COMMISSION'S ORDER DOES NOT
PRESENT A "CASE" OR "CONTROVERSY," BECAUSE THE COURT ITSELF CANNOT LIFT
THE PROHIBITION OF THE STATUTE BY GRANTING PERMISSION FOR THE TRANSFER,
NOR ORDER THE COMMISSION TO GRANT SUCH PERMISSION.  AND SO IT IS
CLAIMED THAT ANY ACTION OF A COURT IN SETTING ASIDE THE ORDER OF THE
COMMISSION WOULD BE AN EMPTY GESTURE, SINCE WITHOUT PERMISSION A
TRANSFER WOULD BE UNLAWFUL.  BUT THIS PROVES TOO MUCH.  IN NONE OF THE
SITUATIONS IN WHICH AN ACTION OF THE INTERSTATE COMMERCE COMMISSION OR
OF A SIMILAR FEDERAL REGULATORY BODY COMES FOR SCRUTINY BEFORE A
FEDERAL COURT CAN JUDICIAL ACTION SUPPLANT THE DISCRETIONARY AUTHORITY
OF A COMMISSION.  A FEDERAL COURT CANNOT FIX RATES NOR MAKE DIVISIONS
OF JOINT RATES NOR RELIEVE FROM THE LONG-SHORT HAUL CLAUSE NOR
FORMULATE CAR PRACTICES.  SO HERE IT IS IMMATERIAL THAT THE COURT
ITSELF CANNOT APPROVE OR DISAPPROVE THE TRANSFER.  THE COURT HAS POWER
TO PASS JUDGMENT UPON CHALLENGED PRINCIPLES OF LAW INSOFAR AS THEY ARE
RELEVANT TO THE DISPOSITION MADE BY THE COMMISSION.  "  ...  A JUDGMENT
RENDERED WILL BE A FINAL AND INDISPUTABLE BASIS OF ACTION BETWEEN THE
COMMISSION AND THE DEFENDANT."  INTERSTATE COMMERCE COMM'N V. BAIRD,
194 U.S. 25, 38.  IN MAKING SUCH A JUDGMENT THE COURT DOES NOT INTRUDE
UPON THE PROVINCE OF THE COMMISSION, WHILE THE CONSTITUTIONAL
REQUIREMENTS OF "CASE" OR "CONTROVERSY" ARE SATISFIED.  FOR PURPOSES OF
JUDICIAL FINALITY THERE IS NO MORE REASON FOR ASSUMING THAT A
COMMISSION WILL DISREGARD THE DIRECTION OF A REVIEWING COURT THAN THAT
A LOWER COURT WILL DO SO.  AFFIRMED. 

FN1  "NO PUBLIC UTILITY SHALL SELL, LEASE, OR OTHERWISE DISPOSE OF
THE WHOLE OF ITS FACILITIES SUBJECT TO THE JURISDICTION OF THE
COMMISSION, OR ANY PART THEREOF OF A VALUE IN EXCESS OF $50,000, OR BY
ANY MEANS WHATSOEVER, DIRECTLY OR INDIRECTLY, MERGE OR CONSOLIDATE SUCH
FACILITIES OR ANY PART THEREOF WITH THOSE OF ANY OTHER PERSON, OR
PURCHASE, ACQUIRE, OR TAKE ANY SECURITY OF ANY OTHER PUBLIC UTILITY,
WITHOUT FIRST HAVING SECURED AN ORDER OF THE COMMISSION AUTHORIZING IT
TO DO SO.  ...  AFTER NOTICE AND OPPORTUNITY FOR HEARING, IF THE
COMMISSION FINDS THAT THE PROPOSED DISPOSITION, CONSOLIDATION,
ACQUISITION, OR CONTROL WILL BE CONSISTENT WITH THE PUBLIC INTEREST, IT
SHALL APPROVE THE SAME." 
..END :










HELVERING V. METRO. EDISON CO., 306 U.S. 522 


NO. 486.  ARGUED MARCH 10, 1939.  - DECIDED APRIL 3, 1939.  - 98 F.2D
807 - ID., 812, AFFIRMED. 


1.  UPON A TRANSFER BY ONE PENNSYLVANIA CORPORATION TO ANOTHER OF ITS
FRANCHISES AND ASSETS, PURSUANT TO THE ACT OF APRIL 29, 1874 OF THAT
STATE, AS AMENDED, THE TRANSFEREE BECOMES LIABLE AS MATTER OF LAW FOR
THE OBLIGATIONS OF THE TRANSFEROR.  P. 528. 

2.  A TRANSFER BY ONE PENNSYLVANIA CORPORATION TO ANOTHER OF ITS
ASSETS AND FRANCHISES, IN ACCORDANCE WITH THE ABOVE-CITED ACT OF
PENNSYLVANIA, HELD TANTAMOUNT TO A MERGER, AND THAT THE TRANSFEREE, IN
COMPUTING ITS INCOME TAX UNDER THE FEDERAL REVENUE ACTS OF 1926 AND
1928, WAS ENTITLED TO DEDUCT UNAMORTIZED DISCOUNT AND EXPENSES IN
RESPECT OF BONDS ISSUED BY THE TRANSFEROR AND RETIRED BY THE
TRANSFEREE.  P. 529. 

3.  A TRANSFER BY ONE PENNSYLVANIA CORPORATION TO ANOTHER OF ITS
ASSETS, THE TRANSFEREE ASSUMING ALL OF THE LIABILITIES OF THE
TRANSFEROR, INCLUDING BONDS ON WHICH THE TRANSFEREE WAS ALREADY LIABLE
AS GUARANTOR, ALTHOUGH IT DID NOT COMPLY FULLY WITH THE ABOVE-CITED
PENNSYLVANIA ACT, HELD A DE FACTO MERGER ENTITLING THE TRANSFEREE TO A
LIKE DEDUCTION.  P. 529. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. METROPOLITAN EDISON
CO.* 

*TOGETHER WITH NO. 487, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. PENNSYLVANIA WATER & POWER CO., ALSO ON WRIT OF CERTIORARI TO THE
CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 305 U.S. 592, TO REVIEW REVERSALS IN TWO CASES OF
DECISIONS OF THE BOARD OF TAX APPEALS, 35 B.T.A. 1110, 36 ID. 467,
SUSTAINING DISALLOWANCES OF DEDUCTIONS FROM INCOME TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE CASES PRESENT THE QUESTION WHETHER, UNDER THE REVENUE ACTS OF
1926 AND 1928,  FN1  A PENNSYLVANIA CORPORATION MAY DEDUCT UNAMORTIZED
BOND DISCOUNT AND EXPENSE IN CONNECTION WITH REDEMPTION OF THE BONDS OF
A SUBSIDIARY, ALL OF WHOSE ASSETS IT HAD PREVIOUSLY ACQUIRED PURSUANT
TO LOCAL LAW.  THE COURT BELOW ANSWERED THIS QUESTION IN THE
AFFIRMATIVE.  FN2  BY REASON OF A DIRECT CONFLICT OF DECISION WE
GRANTED THE WRIT OF CERTIORARI.  FN3 

THE RESPONDENT IN NO. 486 IS A PENNSYLVANIA CORPORATION SUPPLYING
ELECTRIC LIGHT AND POWER IN THAT STATE AND ALSO OPERATING, THROUGH
SUBSIDIARIES, A SYSTEM WHICH SERVES COMMUNITIES IN PENNSYLVANIA AND
MARYLAND.  IT FILED CONSOLIDATED RETURNS FOR ITSELF AND ITS
SUBSIDIARIES FOR 1927 AND 1928.  DURING 1928 THE COMPANY RETIRED
CERTAIN BONDS OF PENNSYLVANIA CORPORATIONS WHICH WERE FORMERLY
SUBSIDIARIES WHOSE OBLIGATIONS THE TAXPAYER HAD ASSUMED WHEN IT TOOK
OVER THEIR ASSETS BY TRANSFERS EFFECTED PURSUANT TO AN ACT OF THE
GENERAL ASSEMBLY OF APRIL 29, 1874, AS AMENDED AND SUPPLEMENTED.  FN4
WHEN THESE OBLIGATIONS WERE REDEEMED THERE EXISTED, WITH RESPECT TO
THEM, UNAMORTIZED DISCOUNT AND EXPENSE AGGREGATING $752,481.26, WHICH
THE COMPANY IN ITS RETURN DEDUCTED FROM GROSS INCOME.  THE COMMISSIONER
RULED AGAINST THE DEDUCTION AND DETERMINED A DEFICIENCY.  THE BOARD OF
TAX APPEALS SUSTAINED THE COMMISSIONER.  FN5  THE CIRCUIT COURT OF
APPEALS REVERSED THE BOARD, HOLDING THAT THE TRANSACTIONS WHEREBY THE
TAXPAYER ACQUIRED THE ASSETS AND ASSUMED THE LIABILITIES OF ITS FORMER
SUBSIDIARIES, PURSUANT TO THE STATUTE, CONSTITUTED A MERGER, AS A
CONSEQUENCE OF WHICH THE SUBSIDIARIES CEASED TO EXIST BY OPERATION OF
LAW WHEREAS THE TAXPAYER CONTINUED TO EXIST AND BECAME LIABLE FOR THE
SUBSIDIARIES' DEBTS BOTH UNDER CONTRACT AND BY OPERATION OF LAW.  THE
COURT, THEREFORE, HELD THAT THE UNAMORTIZED DISCOUNT AND EXPENSE WAS
DEDUCTIBLE IN RESPECT OF THE SUBSIDIARY'S BONDS. 

IN 1923 THE RESPONDENT IN NO. 486 DESIRED TO ERECT A GENERATING PLANT
FOR ELECTRIC ENERGY.  WISHING TO FINANCE IT BY A SEPARATE BOND ISSUE
THE RESPONDENT ORGANIZED METROPOLITAN POWER COMPANY, A PENNSYLVANIA
CORPORATION, AS A WHOLLY-OWNED SUBSIDIARY.  THE TAXPAYER PURCHASED,
GUARANTEED, AND SOLD, AT THE SAME PRICE IT HAD PURCHASED, $3,250,000 OF
BONDS OF THE SUBSIDIARY; PURCHASED ALL OF ITS STOCK AND LOANED IT ON
OPEN ACCOUNT APPROXIMATELY $3,000,000.  THE POWER COMPANY HELD NO
PUBLIC FRANCHISES AND, UNDER A CONTRACT WITH THE TAXPAYER, SOLD ALL OF
ITS ELECTRICITY TO THE LATTER AT A PRICE SUFFICIENT TO ENABLE IT MERELY
TO EARN THE COSTS OF OPERATION AND OTHER CHARGES, INCLUDING
DEPRECIATION, TAXES, AND INTEREST.  IN 1927, PURSUANT TO STATE
AUTHORITY, THE POWER COMPANY SOLD ALL ITS ASSETS SUBJECT TO ITS
LIABILITIES TO THE TAXPAYER, A DEFICIT FROM OPERATIONS BEING CHARGED
AGAINST THE TAXPAYER'S SURPLUS.  AT THE TIME OF THE TRANSFER THE
TAXPAYER SURRENDERED THE STOCK OF THE POWER COMPANY FOR CANCELLATION
AND THE LATTER BECAME INACTIVE AND WAS DISSOLVED IN 1928.  THE TAXPAYER
ASSUMED LIABILITY FOR THE OUTSTANDING BONDS OF THE POWER COMPANY
PAYMENT OF WHICH IT HAD ORIGINALLY GUARANTEED AND, DURING 1927, CALLED
THEM FOR REDEMPTION AND REDEEMED THEM.  AT THE TIME OF THE REDEMPTION
THERE REMAINED UNAMORTIZED DISCOUNT AND EXPENSE INCURRED IN ISSUING THE
BONDS AGGREGATING $308,097.90 WHICH THE TAXPAYER DEDUCTED FROM ITS
GROSS INCOME.  THE COMMISSIONER RULED AGAINST THE DEDUCTION AND THE
BOARD OF TAX APPEALS SUSTAINED HIM.  FN6  THE COURT OF APPEALS REVERSED
THE BOARD, HOLDING THAT, WHILE THE TRANSACTION WAS NOT CONSUMMATED
UNDER THE STATE STATUTE IT NEVERTHELESS WAS UNDER STATE LAW A DE FACTO
MERGER, AND THE TAXPAYER WAS ACCORDINGLY ENTITLED TO THE DEDUCTION. 

THE RESPONDENT IN NO. 487 IS A PENNSYLVANIA CORPORATION OPERATING A
HYDROELECTRIC PLANT AT HOLTWOOD, PENNSYLVANIA.  IN 1924 IT DESIRED TO
PROVIDE ITS CUSTOMERS WITH A MORE ADEQUATE SUPPLY BY AN AUXILIARY STEAM
POWER PLANT.  AS ITS CORPORATE POWERS DID NOT PERMIT STEAM GENERATION
OF ELECTRICITY IT CAUSED THE INCORPORATION OF A PENNSYLVANIA COMPANY,
KNOWN AS HOLTWOOD POWER COMPANY, ALL OF WHOSE SHARES WERE PURCHASED AND
OWNED BY THE RESPONDENT.  WITH THE PROCEEDS OF THE SALE OF THE POWER
COMPANY'S STOCK AND THOSE OF A BOND ISSUE THE STEAM PLANT WAS ERECTED. 
THIS PLANT SOLD ALL ITS OUTPUT TO THE TAXPAYER WHICH AGREED, IN RETURN,
TO PAY THE POWER COMPANY'S COSTS AND EXPENSES AND AN ALLOWANCE FOR
DEPRECIATION, AND TO PAY A SUM TO PROVIDE FOR AMORTIZATION OF DEBT,
DISCOUNT, AND SECURITY ISSUE EXPENSE, AND THE EXPENSES ATTENDING THE
ISSUE, REGISTRATION AND TRANSFER OF THE CAPITAL STOCK AND BONDS, ALL
INTEREST ON BONDS AND OTHER INDEBTEDNESS, AND A SUM SUFFICIENT TO
PROVIDE A NET RETURN OF EIGHT PER CENT. ON THE POWER COMPANY'S STOCK. 
THE STEAM PLANT WAS MANAGED BY THE TAXPAYER'S OFFICERS AND EMPLOYES
WITHOUT COMPENSATION AND WAS OPERATED AS A DEPARTMENT OF THE TAXPAYER. 
IN 1927 THE TAXPAYER SURRENDERED CERTAIN CORPORATE POWERS SO AS TO BE
IN A POSITION TO EFFECT A MERGER OR CONSOLIDATION WITH ITS SUBSIDIARY
UNDER THE PENNSYLVANIA STATUTES.  FN7  THEREUPON THE POWER COMPANY
CONVEYED ALL OF ITS ASSETS AND FRANCHISES TO THE TAXPAYER PURSUANT TO
THE PENNSYLVANIA ACT OF 1874 AS AMENDED, THE SOLE CONSIDERATION BEING
THE DELIVERY TO THE SUBSIDIARY OF ALL ITS CAPITAL STOCK HELD BY THE
TAXPAYER AND THE ASSUMPTION BY THE TAXPAYER OF THE SUBSIDIARY'S
INDEBTEDNESS.  THE SUBSIDIARY CEASED TO EXIST.  IN 1928 THE TAXPAYER
RETIRED THE BONDS OF ITS FORMER SUBSIDIARY AND CHARGED OFF UNAMORTIZED
DISCOUNT AND EXPENSE IN RESPECT OF THEM IN THE SUM OF $145,159.52 AND,
IN ITS INCOME TAX RETURN FOR THAT YEAR, CLAIMED A SMALL DEDUCTION FOR
AMORTIZATION FOR A PORTION OF THE YEAR PRIOR TO THE RETIREMENT, AND A
DEDUCTION OF THE BALANCE OF THE SUM ABOVE MENTIONED AS OF THE DATE WHEN
THE RETIREMENT TOOK PLACE.  THE COMMISSIONER DISALLOWED THE DEDUCTION
AND DETERMINED A DEFICIENCY.  THE BOARD OF TAX APPEALS SUSTAINED THE
RULING.  FN8  THE CIRCUIT COURT OF APPEALS REVERSED THE BOARD. 

THE PETITIONER CONCEDES THAT IF THERE HAS BEEN A TRUE MERGER OR
CONSOLIDATION WHEREBY THE IDENTITY OF THE CORPORATION ISSUING THE BONDS
CONTINUES IN THE SUCCESSOR AND THE LATTER BECOMES LIABLE FOR THE DEBTS
OF THE FORMER BY OPERATION OF LAW, THE SUCCESSOR MAY DEDUCT
AMORTIZATION OF DISCOUNT AND EXPENSE IN RESPECT OF BONDS ISSUED BY ITS
PREDECESSOR AS WELL AS UNAMORTIZED DISCOUNT AND EXPENSE ON ANY OF SUCH
BONDS RETIRED PRIOR TO MATURITY.  FN9  THE RULE IS NOT APPLICABLE UPON
A MERE SALE BY ONE CORPORATION OF ALL ITS ASSETS TO ANOTHER WHICH
ASSUMES THE LIABILITIES OF THE FORMER.  FN10 

THE CONTENTION OF THE PETITIONER IS THAT THE TRANSACTIONS IN ISSUE
FALL WITHIN THE LATTER CATEGORY.  THE RESPONDENTS, ON THE OTHER HAND,
INSIST THAT, IN THE LIGHT OF THE APPLICABLE STATUTE OF PENNSYLVANIA AND
THE DECISIONS OF HER COURTS, THE TRANSACTIONS CONSTITUTED MERGERS IN
THE PROPER ACCEPTATION OF THAT TERM.  THE QUESTION, THEN, IS SOLELY ONE
RESPECTING THE LAW OF PENNSYLVANIA. 

UNTIL THE COMPLETE REVISION OF THE CORPORATION LAWS OF THE
COMMONWEALTH IN 1933 THERE WERE BUT TWO STATUTES AVAILABLE TO
CORPORATIONS SEEKING TO MERGE OR CONSOLIDATE.  THE ACT OF APRIL 29,
1874, SEC. 23, SUPRA, SO FAR AS MATERIAL, PROVIDES THAT ANY
CORPORATION, WITH THE CONSENT OF ITS STOCKHOLDERS, MAY "SELL, ASSIGN,
DISPOSE OF AND CONVEY TO ANY CORPORATION CREATED UNDER OR ACCEPTING THE
PROVISIONS OF THIS ACT, ITS FRANCHISES, AND ALL ITS PROPERTY, REAL,
PERSONAL AND MIXED, AND THEREAFTER SUCH CORPORATION SHALL CEASE TO
EXIST, AND THE SAID PROPERTY AND FRANCHISES NOT INCONSISTENT WITH THIS
ACT, SHALL THEREAFTER BE VESTED IN THE CORPORATION SO PURCHASING AS
AFORESAID.  ..."  THE ACT OF MAY 3, 1909,  FN11  PERMITS WHAT IT TERMS
A MERGER BUT WHAT IS IN TRUTH A CONSOLIDATION TO BE EFFECTED BY A JOINT
AGREEMENT OF TWO OR MORE CORPORATIONS APPROVED BY THE STOCKHOLDERS
SETTING FORTH THE TERMS AND CONDITIONS OF THE MERGER AND CONSOLIDATION
AND PROVIDING FOR THE ORGANIZATION OF A NEW CORPORATION TO WHICH THE
FRANCHISES AND PROPERTY OF THE CONSOLIDATING CORPORATIONS ARE TO BE
TRANSFERRED.  THIS ACT CONTEMPLATES THE ISSUE OF LETTERS PATENT TO THE
CONSOLIDATED CORPORATION, AND THE ISSUE OF NEW STOCK BY IT, IN LIEU OF
THAT OF THE OLD.  THE PROCEDURE UNDER THE ACT OF 1874 HAS REPEATEDLY
BEEN REFERRED TO IN THE DECISIONS OF THE SUPREME COURT OF THE
COMMONWEALTH AS THE "SHORT FORM" AND THAT UNDER THE ACT OF 1909 AS THE
"LONG FORM" OF MERGER.  FN12 

INASMUCH AS THE TRANSFER OF THE FRANCHISES AND ASSETS IS AUTHORIZED
BY STATUTE, IT SEEMS REASONABLY CLEAR THAT THE TRANSFEREE IS, AS MATTER
OF LAW, LIABLE FOR THE OBLIGATION OF THE TRANSFEROR.  THE CASES
INDICATE THAT THIS IS SO.  FN13  THE PETITIONER ARGUES AND THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT HAS HELD TO THE CONTRARY, IN
RELIANCE ON MERWINE V. MT. POCONO LIGHT & IMP.  CO., 304 PA. 517; 156
ATL. 150.  THAT COURT THOUGHT THE CASE INDICATED THAT THE LIABILITY, IF
ANY, OF THE TRANSFEREE WAS NOT UNDER THE STATUTE BUT WAS ONLY THAT OF A
FRAUDULENT TRANSFEREE UNDER 13 ELIZ., CHAP. 5.  ACTION FOR A TORT HAD
BEEN BROUGHT AGAINST THE TRANSFEROR PRIOR TO A TRANSFER UNDER THE ACT
OF 1874.  AFTER THE CONVEYANCE THE DEFENDANT FILED A SUGGESTION THAT
THE PROPERTY HAD BEEN CONVEYED IN PROCEEDINGS UNDER THE ACT, THAT THE
DEFENDANT HAD CEASED TO EXIST, AND THAT THE ACTION SHOULD BE ABATED. 
THE PLAINTIFF SOUGHT TO SUBSTITUTE THE TRANSFEREE AS DEFENDANT.  THE
TRIAL COURT DENIED SUBSTITUTION AND ABATED THE ACTION.  THE SUPREME
COURT HELD THAT THE TERMINATION OF CORPORATE EXISTENCE OF THE DEFENDANT
UNDER THE ACT OF 1874 DID NOT ABATE THE ACTION, BUT THAT IF THE
PLAINTIFF RECOVERED A JUDGMENT SHE COULD "LEVY WHEREVER DEFENDANT'S
ASSETS LIABLE FOR THE JUDGMENT MAY BE FOUND," WHICH SEEMS TO US TO MEAN
NO MORE THAN THAT THE ASSETS AFTER THE CONVEYANCE REMAINED SUBJECT TO
THE TRANSFEROR'S LIABILITIES.  A TRANSFER FULLY AUTHORIZED BY STATUTE
CANNOT BE A FRAUDULENT CONVEYANCE WITHIN THE 13 ELIZ. 

WE ARE OF OPINION THAT A TRANSFER WITHOUT VALUABLE CONSIDERATION,
WITH THE INTENT THAT THE TRANSFEROR SHALL, AS THE STATUTE PROVIDES,
CEASE TO EXIST, MADE IN ACCORDANCE WITH THE STATUTE, HAS ALL THE
ELEMENTS OF A MERGER AND COMES WITHIN THE PRINCIPLE THAT THE CORPORATE
PERSONALITY OF THE TRANSFEROR IS DROWNED IN THAT OF THE TRANSFEREE.  IT
RESULTS THAT THE CONTINUING CORPORATION MAY DEDUCT UNAMORTIZED BOND
DISCOUNT AND EXPENSE IN RESPECT OF THE OBLIGATIONS OF THE TRANSFERRING
AFFILIATE. 

A SOMEWHAT DIFFERENT QUESTION ARISES WITH RESPECT TO THE TRANSFER OF
ASSETS OF METROPOLITAN POWER COMPANY.  IT IS ADMITTED THAT THIS
TRANSFER WAS NOT MADE IN ACCORDANCE WITH THE TERMS OF THE ACT OF 1874. 
NO FRANCHISES WERE TRANSFERRED BECAUSE THE METROPOLITAN POWER COMPANY
HELD NO PUBLIC FRANCHISES OF ANY KIND.  THE TRANSFER WAS MERELY OF
ASSETS WITH THE ASSUMPTION OF ALL THE LIABILITIES BY THE TRANSFEREE. 
IT IS IMPORTANT TO NOTE, HOWEVER, THAT AMONGST THE LIABILITIES ASSUMED
WERE BONDS ON WHICH THE PARENT COMPANY WAS ALREADY LIABLE AS
GUARANTOR.  THE COURT BELOW HAS HELD, AND WE CONCUR, THAT, UNDER THE
LAW OF PENNSYLVANIA, THE TRANSFER IN QUESTION CONSTITUTED A DE FACTO
MERGER, EVEN THOUGH THE TRANSFER DID NOT COMPLY WITH ALL THE PROVISIONS
OF THE ACT OF 1874,  FN14  AND THAT, AS MATTER OF LAW, THE TAXPAYER
WOULD BE LIABLE FOR THE DEBTS OF THE TRANSFEROR.  JUDGMENTS AFFIRMED. 

FN1  REVENUE ACT OF 1926, SECS. 200(D), 212(B), 232 AND 234(A)(1)(2)
AND (4), 44 STAT. 9, 10, 23, 41-42; REVENUE ACT OF 1928, SECS. 23(A)(B)
AND (F), 41, 42, 43, 48, 45 STAT. 791, 799-800, 805, 807. 

FN2  98 F.2D 807, 812. 

FN3  SEE GENERAL GAS & ELECTRIC CORP. V. COMMISSIONER, 98 F.2D 561,
IN WHICH CERTIORARI WAS ALSO GRANTED, DECIDED POST P. 530. 

FN4  ACT OF APRIL 29, 1874, P.L. 73, SEC. 23, AMENDED BY ACT OF APRIL
17, 1876, P.L. 30, SEC. 5, AND ACT OF JUNE 2, 1915, P.L. 724, SEC. 1. 
PURDON'S PA. STATS. TIT. 15, SEC. 595. 

FN5  35 B.T.A. 1110. 

FN6  35 B.T.A. 1110. 

FN7  SEE YORK HAVEN WATER & POWER CO. V. PUBLIC SERVICE COMM'N, 287
PA. 241, 249; 134 ATL. 419, 421. 

FN8  36 B.T.A. 467. 

FN9  AMERICAN GAS & ELECTRIC CO. V. COMMISSIONER, 85 F.2D 527;
AMERICAN GAS & ELECTRIC CO. V. UNITED STATES, 17 F.SUPP.  151; NEW YORK
CENTRAL R. CO. V. COMMISSIONER, 79 F.2D 247; WESTERN MARYLAND RY. CO.
V. COMMISSIONER, 33 F.2D 695; ILLINOIS POWER & LIGHT CORP. V.
COMMISSIONER, 33 B.T.A. 1189; CONNECTICUT ELECTRIC SERVICE CO. V.
COMMISSIONER, 35 B.T.A. 444.    FN10  TURNER-FARBER-LOVE CO. V.
HELVERING, 62 APP. D.C. 369; 68 F.2D 416; AMERICAN GAS & ELECTRIC CO.
V. COMMISSIONER, SUPRA; AMERICAN GAS & ELECTRIC CO. V. UNITED STATES,
SUPRA. 

FN11  PURDON'S PA. STATS. TIT. 15, SEC. 421, ETC. 

FN12  SEE YORK HAVEN WATER & POWER CO. V. PUBLIC SERVICE COMM'N, 287
PA. 241, 246; 134 ATL. 419, 420; BUIST'S ESTATE, 297 PA. 537, 541; 147
ATL. 606, 607; COMPARE STOCKLEY PENNA.  CORP.  LAWS 1933, PP. 39, 104;
PENNSYLVANIA UTILITIES CO. V. PUBLIC SERVICE COMM'N, 69 PA. SUPER.  CT.
612. 

FN13  BERKOVITZ'S APPEAL, 319 PA. 397, 407; 179 ATL. 746 AT 751;
COMMONWEALTH V. MERCHANTS NATIONAL BANK, 323 PA. 145, 153; 185 ATL.
823, 827.    FN14  COMMONWEALTH V. MERCHANTS NATIONAL BANK, SUPRA, P.
152. 
..END :









GENERAL GAS & ELECTRIC CORP. V. COMMISSIONER, 306 U.S. 530 


NOS. 492 AND 493.  ARGUED MARCH 10, 1939.  - DECIDED APRIL 3, 1939.  -
98 F.2D 561, REVERSED. 


DECIDED UPON THE AUTHORITY OF HELVERING V. METROPOLITAN EDISON CO.,
ANTE, P. 522. 

GENERAL GAS & ELECTRIC CORP. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 305 U.S. 593, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS SUSTAINING THE DETERMINATION OF A DEFICIENCY
IN INCOME TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE ARE COMPANION CASES TO NOS. 486 AND 487, ANTE, P. 522, AND
INVOLVE THE SAME QUESTION.  THE CIRCUIT COURT OF APPEALS HELD THAT
CONVEYANCES BY SUBSIDIARIES TO THE TAXPAYER, CONSUMMATED UNDER THE ACT
OF APRIL 29, 1874, DID NOT CONSTITUTE MERGERS SO AS TO AUTHORIZE THE
TAXPAYER TO TAKE A DEDUCTION FOR UNAMORTIZED BOND DISCOUNT AND EXPENSE
IN RESPECT OF BONDS ISSUED BY THE SUBSIDIARIES PRIOR TO THE
CONVEYANCE. 

FOR REASONS GIVEN IN NOS. 486 AND 487 THE JUDGMENTS MUST BE
REVERSED. 
..END :























FAIRBANKS V. UNITED STATES, 306 U.S. 436 


NO. 65.  ARGUED FEBRUARY 28, 1939.  - DECIDED MARCH 27, 1939.  - 95 F.2D
794, AFFIRMED. 


1.  THE REDEMPTION BEFORE MATURITY OF CORPORATE BONDS IS NOT A "SALE
OR EXCHANGE" OF CAPITAL ASSETS WITHIN THE MEANING OF SEC. 208(A)(1),
REV. ACT 1926, AND SEC. 101(C)(1), REV. ACT 1928, AND THE GAIN SO
REALIZED BY THE BONDHOLDER IS NOT A "CAPITAL GAIN," TO BE TAXED AT THE
12 1/2% RATE, BUT IS TAXABLE AT THE NORMAL AND SURTAX RATES.  P. 437. 

2.  IN PROVIDING EXPRESSLY THAT AMOUNTS RECEIVED BY THE HOLDER UPON
THE RETIREMENT OF CORPORATE BONDS SHALL BE CONSIDERED AS AMOUNTS
RECEIVED IN EXCHANGE THEREFOR, THE REV. ACT OF 1934 DID NOT INTERPRET,
BUT CHANGED THE PRIOR LAW.  P. 438. 

FAIRBANKS V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 305 U.S. 667, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE UNITED STATES IN AN ACTION IN THE DISTRICT COURT BROUGHT UNDER SEC.
610 OF THE REV. ACT 1928 TO RECOVER MONEY ERRONEOUSLY REFUNDED TO A
TAXPAYER. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

BOTH COURTS BELOW RULED THAT GAIN DERIVED BY THE PETITIONER FROM
REDEMPTION OF BONDS DURING 1927, 1928 AND 1929 WAS NOT "CAPITAL GAIN"
WITHIN THE MEANING OF THE CONTROLLING STATUTES. 

NO CONTEST NOW EXISTS CONCERNING THE FACTS.  THE NARROW POINT AS
COUNSEL AGREE IS THIS - MUST THE REDEMPTION OF BONDS BEFORE MATURITY BY
THE ISSUING CORPORATION BE TREATED AS TANTAMOUNT TO A SALE OR EXCHANGE
OF CAPITAL ASSETS WITHIN THE MEANING OF SEC. 208(A)(1), REVENUE ACT
1926, AND SEC. 101(C)(1), REVENUE ACT 1928.  FN1 

IF REDEMPTION AMOUNTS TO SALE OR EXCHANGE, THE PETITIONER'S GAIN WAS
SUBJECT TO TAXATION AT THE TWELVE AND ONE-HALF PER CENT RATE;
OTHERWISE, UNDER NORMAL AND SURTAX RATES. 

PAYMENT AND DISCHARGE OF A BOND IS NEITHER SALE NOR EXCHANGE WITHIN
THE COMMONLY ACCEPTED MEANING OF THE WORDS.  THE COURTS BELOW FOUND NO
SUFFICIENT REASON FOR DISREGARDING THIS AND RIGHTLY APPLIED THE
STATUTES UNDER THAT VIEW. 

THE TAX ACTS OF 1921, 1924, 1926, 1928 AND 1932 CONTAIN LIKE
DEFINITIONS OF CAPITAL GAIN.  FROM 1921 TO 1929 THE COMMISSIONER HELD
THAT SUCH GAIN DID NOT ARISE FROM REDEMPTION.  IN 1929 THE BOARD OF TAX
APPEALS HELD OTHERWISE.  WERNER V. COMMISSIONER, 15 B.T.A. 482.  BUT IN
1932 IT DEFINITELY OVERRULED THAT DETERMINATION.  WATSON V.
COMMISSIONER, 27 B.T.A. 463. 

THE REVENUE ACT 1934(MAY 10, 1934, C. 277, 48 STAT. 680, 714-715)
PROVIDES -

               "SEC.  117.  CAPITAL GAINS AND LOSSES. 

(A)  GENERAL RULE.  - IN THE CASE OF A TAXPAYER, OTHER THAN A
CORPORATION, ONLY THE FOLLOWING PERCENTAGES OF THE GAIN OR LOSS
RECOGNIZED UPON THE SALE OR EXCHANGE OF A CAPITAL ASSET SHALL BE TAKEN
INTO ACCOUNT IN COMPUTING NET INCOME:  ... 

(F)  RETIREMENT OF BONDS, ETC. - FOR THE PURPOSES OF THIS TITLE,
AMOUNTS RECEIVED BY THE HOLDER UPON THE RETIREMENT OF BONDS,
DEBENTURES, NOTES, OR CERTIFICATES OR OTHER EVIDENCES OF INDEBTEDNESS
ISSUED BY ANY CORPORATION (INCLUDING THOSE ISSUED BY A GOVERNMENT OR
POLITICAL SUBDIVISION THEREOF), WITH INTEREST COUPONS OR IN REGISTERED
FORM, SHALL BE CONSIDERED AS AMOUNTS RECEIVED IN EXCHANGE THEREFOR." 

WHAT WE REGARD AS THE CORRECT MEANING OF THE DEFINITION OF CAPITAL
GAIN IN THE REVENUE ACT 1921 AND ITS FOUR SUCCESSORS IS ACCENTUATED BY
LONG-CONTINUED EXECUTIVE CONSTRUCTION, ALSO THE LAST CONCLUSION OF THE
BOARD OF TAX APPEALS. 

THE CIRCUIT COURT OF APPEALS BELOW WAS RIGHT IN HOLDING THAT BY THE
ACT 1934 CONGRESS DID NOT ATTEMPT TO CONSTRUE THE PRIOR ACTS AND
PURPOSELY MADE A MATERIAL ADDITION THERETO.  IN AVERILL V.
COMMISSIONER, 101 F.2D 644, THE CIRCUIT COURT OF APPEALS FIRST CIRCUIT
ACTED UPON A DIFFERENT VIEW.  THIS CONFLICT CAUSED US TO BRING UP THE
PRESENT CAUSE NOTWITHSTANDING THE APPLICATION FOR CERTIORARI HAD BEEN
DENIED EARLIER IN THE TERM. 

THE CHALLENGED JUDGMENT MUST BE AFFIRMED. 

FN1  REVENUE ACT 1921(NOVEMBER 23, 1921, C. 136, 42 STAT. 227, 232)
PROVIDES - 

"SEC. 206.  (A)  THAT FOR THE PURPOSE OF THIS TITLE: 

(1) THE TERM 'CAPITAL GAIN' MEANS TAXABLE GAIN FROM THE SALE OR
EXCHANGE OF CAPITAL ASSETS CONSUMMATED AFTER DECEMBER 31, 1921." 

THIS PROVISION WITHOUT MATERIAL CHANGE WAS REENACTED BY REVENUE ACT
1924(JUNE 2, 1924, C. 234, SEC. 208(A)(1), 43 STAT. 253, 262); REVENUE
ACT 1926(FEBRUARY 26, 1926, C. 27, SEC. 208(A)(1), 44 STAT. 9, 19);
REVENUE ACT 1928(MAY 29, 1928, C. 852, SEC. 101(C)(1), 45 STAT. 791,
811); REVENUE ACT OF 1932(JUNE 6, 1932, C. 209, SEC. 101(C)(1), 47
STAT. 169, 191). 
..END :


















CLASON V. INDIANA, 306 U.S. 439 


NO. 517.  ARGUED MARCH 10, 1939.  - DECIDED MARCH 27, 1939.  - 214 IND.
630 - 17 N.E.2D 92, AFFIRMED. 


AN INDIANA STATUTE PROVIDES THAT THE BODIES OF LARGE DEAD ANIMALS (NOT
SLAUGHTERED FOR HUMAN FOOD) SHALL BE PROMPTLY BURNT OR BURIED BY THE
OWNERS, ON THEIR PREMISES, OR BE THERE BY THEM DELIVERED TO THE
REPRESENTATIVE OF A DISPOSAL PLANT LICENSED TO DO BUSINESS WITHIN THE
STATE AND BE PROMPTLY CARRIED TO SUCH PLANT IN A SANITARY VEHICLE AND
SPEEDILY RENDERED INNOCUOUS.  HELD: 

1.  THAT IT IS A COMPREHENSIVE, PRACTICAL PUBLIC HEALTH MEASURE
WITHIN THE POWER OF THE STATE.  P. 441. 

2.  PERMISSION TO THE OWNERS TO SELL THE CARCASSES TO THE LICENSED
OPERATORS FOR DISPOSITION UNDER THE ACT, IS NOT A RECOGNITION BY THE
STATE THAT SUCH DEAD ANIMALS ARE LEGITIMATE ARTICLES OF COMMERCE.  P.
443. 

3.  PROHIBITION AGAINST HAULING SUCH BODIES ON STATE HIGHWAYS EXCEPT
UNDER LICENSE TO A LICENSED DISPOSAL PLANT IN THE STATE, THEREBY
PREVENTING THEIR TRANSPORTATION OUT OF THE STATE TO BE SOLD, WHICH IS
NOT LICENSABLE UNDER THE ACT, IS NOT REPUGNANT TO THE COMMERCE CLAUSE. 
P. 443. 

4.  THE MERE POWER OF THE FEDERAL GOVERNMENT TO REGULATE INTERSTATE
COMMERCE DOES NOT DISABLE THE STATES FROM ADOPTING REASONABLE MEASURES
DESIGNED TO SECURE THE HEALTH AND COMFORT OF THEIR PEOPLE.  P. 444. 

CLASON V. INDIANA. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

APPEAL FROM A JUDGMENT SUSTAINING A CONVICTION OF VIOLATION OF THE
INDIANA ANIMALS DISPOSAL ACT OF MARCH 12, 1937, BY TRANSPORTING A DEAD
HORSE OVER A HIGHWAY OF THAT STATE AND INTO ILLINOIS WITHOUT LICENSE. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE SUPREME COURT OF INDIANA AFFIRMED A JUDGMENT WHICH CONVICTED
APPELLANT OF VIOLATING SECTION ELEVEN OF THE ANIMALS DISPOSAL ACT
APPROVED MARCH 12, 1937  FN1  (C. 278, ACTS 1937) BY TRANSPORTING A
DEAD HORSE OVER A HIGHWAY OF THAT STATE AND INTO ILLINOIS WITHOUT
LICENSE.  FORBIDDEN TRANSPORTATION IS ADMITTED; ALSO THAT WHILE LICENSE
CAN BE OBTAINED UNDER PRESCRIBED CONDITIONS FOR SUCH TRANSPORTATION
WITHIN THE STATE IT IS PROHIBITED FOR POINTS OUTSIDE. 

AND UNDERTAKES TO REGULATE, THE PROMPT DISPOSITION OF LARGE DEAD
ANIMALS (NOT SLAUGHTERED FOR HUMAN FOOD) UNDER THE GENERAL SUPERVISION
OF THE STATE VETERINARIAN.  THE OBVIOUS PURPOSE OF THE ENACTMENT IS TO
PREVENT THE SPREAD OF DISEASE AND THE DEVELOPMENT OF NUISANCES. 

THE PRESCRIBED PLAN EXACTS THAT WITHIN TWENTY-FOUR HOURS AFTER DEATH
OWNERS SHALL BURY OR BURN SUCH BODIES ON THEIR PREMISES, OR THERE
DELIVER THEM TO THE REPRESENTATIVE OF A DISPOSAL PLANT LICENSED TO DO
BUSINESS WITHIN THE STATE.  IT FURTHER DIRECTS THAT THE BODY SHALL BE
PROMPTLY CARRIED TO SUCH PLANT IN A SANITARY VEHICLE AND SPEEDILY
RENDERED INNOCUOUS.  THE CONVEYANCE MUST BE THOROUGHLY AND PROMPTLY
DISINFECTED AT THE PLANT. 

THE VALIDITY OF THE STATUTE WAS UNSUCCESSFULLY CHALLENGED ON THE
GROUND THAT IT UNDULY DISCRIMINATES AGAINST AND BURDENS INTERSTATE
COMMERCE AND THEREBY VIOLATES THE FEDERAL CONSTITUTION.  THE SUPREME
COURT OF THE STATE REVIEWED THE STATUTE; POINTED OUT ITS PURPOSE TO
SUPPRESS OBVIOUS DANGER TO PUBLIC HEALTH; REFERRED TO THE MEANS ADOPTED
AS REASONABLY APPROPRIATE TO THAT END; QUOTED FROM BOWMAN V. CHICAGO &
N.W. RY. CO., 125 U.S. 465, 489.  FN2  IT CONCLUDED THAT DEAD BODIES OF
ANIMALS NOT SLAUGHTERED FOR FOOD ARE NOT LEGITIMATE SUBJECTS OF
COMMERCE; THAT THE STATUTE IS AN APPROPRIATE SANITARY MEASURE WHOSE
EFFECT UPON INTERSTATE COMMERCE, IF ANY, IS MERELY INCIDENTAL. 

AS THE PRECISE POINT FOR OUR DETERMINATION, COUNSEL FOR APPELLANT
SUBMIT THE FOLLOWING - 

"THE SUPREME COURT OF INDIANA ERRED IN HOLDING THAT THE INDIANA DEAD
ANIMAL DISPOSAL ACT OF 1937 WAS VALID AS A REASONABLE REGULATION OR
QUARANTINE AND NOT INVALID AS A DISCRIMINATORY PROHIBITION OF
INTERSTATE COMMERCE IN COMMODITIES RECOGNIZED AS LEGITIMATE ARTICLES OF
INTRASTATE COMMERCE, CONTRARY TO ARTICLE I, SECTION 8, CLAUSE 3, OF THE
CONSTITUTION OF THE UNITED STATES." 

IT SEEMS PLAIN ENOUGH THAT THE CHALLENGED STATUTE IS A SANITARY AND
HEALTH MEASURE NOT INTENDED TO CAUSE DISCRIMINATION AGAINST OR TO
BURDEN INTERSTATE COMMERCE.  ITS PURPOSE IS TO PROMOTE THE HEALTH OF
THE PEOPLE OF THE STATE IN FEASIBLE WAYS. 

"THE POWER OF THE STATE TO PRESCRIBE REGULATIONS WHICH SHALL PREVENT
THE PRODUCTION WITHIN ITS BORDERS OF IMPURE FOODS, UNFIT FOR USE, AND
SUCH ARTICLES AS WOULD SPREAD DISEASE AND PESTILENCE, IS WELL
ESTABLISHED.  SUCH ARTICLES, IT HAS BEEN DECLARED BY THIS COURT, ARE
NOT THE LEGITIMATE SUBJECT OF TRADE OR COMMERCE, NOR WITHIN THE
PROTECTION OF THE COMMERCE CLAUSE OF THE CONSTITUTION.  ...  NOR DOES
IT MAKE ANY DIFFERENCE THAT SUCH REGULATIONS INCIDENTALLY AFFECT
INTERSTATE COMMERCE, WHEN THE OBJECT OF THE REGULATION IS NOT TO THAT
END, BUT IS A LEGITIMATE ATTEMPT TO PROTECT THE PEOPLE OF THE STATE." 
SLIGH V. KIRKWOOD, 237 U.S. 52, 59-60. 

HERE, CONTRARY TO WHAT SEEMS TO BE THE INSISTENCE OF COUNSEL, THE
STATE HAS NOT RECOGNIZED DEAD HORSES AS LEGITIMATE ARTICLES OF
INTRASTATE COMMERCE.  IT PERMITS THEM TO BE SOLD ONLY TO LICENSED
OPERATORS WHO MUST TRANSPORT THEM IMMEDIATELY UNDER STRICT SANITARY
REGULATIONS FOR PROMPT DELIVERY TO A LICENSED PLANT THERE TO BE
RENDERED INNOCUOUS WITHOUT DELAY BY PRESCRIBED METHODS.  ALL THIS IS
PART OF A WORKABLE SCHEME TO SECURE PROMPT REMOVAL OF DECAYING
CARCASSES AND THUS PROTECT AGAINST OBVIOUS EVILS. 

WE CAN FIND NO SUBSTANTIAL BASIS FOR THE CHARGE OF DISCRIMINATION
AGAINST LEGITIMATE INTERSTATE COMMERCE.  THAT ANY REAL BURDEN UPON
COMMERCE WHICH THE STATE IS NOT FREE TO INHIBIT WILL RESULT FROM THE
CHALLENGED STATUTE SEEMS IMPOSSIBLE. 

THERE IS NO SUGGESTION OF CONFLICT WITH A FEDERAL ENACTMENT.  THE
MERE POWER OF THE FEDERAL GOVERNMENT TO REGULATE INTERSTATE COMMERCE
DOES NOT DISABLE THE STATES FROM ADOPTING REASONABLE MEASURES DESIGNED
TO SECURE THE HEALTH AND COMFORT OF THEIR PEOPLE.  THE STATUTE UNDER
CONSIDERATION IS AN EFFORT TO DISCHARGE AN OBLIGATION TO THE PUBLIC;
THE MEANS ADOPTED WE THINK ARE CLEARLY APPROPRIATE TO THIS LAWFUL END. 

THE JUDGMENT OF THE COURT BELOW MUST BE AFFIRMED. 

FN1  INDIANA ACTS 1937, C. 278 - 

"SEC. 4.  (A)  NO PERSON SHALL ENGAGE IN THIS STATE IN THE BUSINESS
OF OPERATING A DISPOSAL PLANT, AS HEREIN DEFINED, WITHOUT FIRST
OBTAINING FOR EACH SUCH DISPOSAL PLANT SO OPERATED BY HIM, OR IN HIS
BEHALF, A LICENSE AND ANY VEHICLE CERTIFICATES REQUIRED, AS HEREIN
PROVIDED; AND NO PERSON, EXCEPT ONE HOLDING A LICENSE TO OPERATE SUCH A
DISPOSAL PLANT IN THIS STATE, OR WHO IS ACTING FOR SUCH LICENSEE, OR
WHO IS OTHERWISE EXCEPTED BY THIS ACT, SHALL EITHER TRANSPORT OVER ANY
HIGHWAYS OF THIS STATE, OR DISPOSE OF TO ANY PERSON, THE BODIES OF ANY
DEAD ANIMALS IN ANY MANNER HEREIN PRESCRIBED, OR IN ANY OTHER MANNER
NOT PERMITTED BY LAW. 

"(B)  THE SAID STATE VETERINARIAN SHALL KEEP A RECORD OF ALL
APPLICATIONS FOR PERMITS, LICENSES AND VEHICLE CERTIFICATES, SHOWING
ALL THEREOF ISSUED, DENIED, OR REVOKED BY HIM, AND SUCH OTHER FACTS AS
HE MAY PRESCRIBE. 

"SEC. 11.  (A)  NO PERSON, EXCEPT AS HEREIN PROVIDED, MAY HAUL OR
TRANSPORT OVER THE HIGHWAYS OF THE STATE OF INDIANA THE BODIES OF ANY
DEAD ANIMALS, EXCEPT THOSE THAT HAVE BEEN SLAUGHTERED AND ARE INTENDED
FOR HUMAN FOOD, WITHOUT FIRST OBTAINING AND HOLDING A LICENSE ISSUED
UNDER THE PROVISIONS OF THIS ACT AND WHICH BODIES ARE BEING TRANSPORTED
TO A DISPOSAL PLANT LOCATED IN THIS STATE AND OPERATED BY A PERSON
HOLDING A LICENSE TO ENGAGE IN SUCH BUSINESS. 

"(B)  NO LICENSE SHALL BE ISSUED TO ANY PERSON SOLELY FOR THE PURPOSE
OF TRANSPORTING THE BODIES OF DEAD ANIMALS, BUT SUCH TRANSPORTATION
MUST BE DONE SOLELY BY PERSONS HOLDING A LICENSE FOR DISPOSAL PLANTS,
SO THAT SUCH DEAD BODIES MAY BE PROPERLY AND PROMPTLY DISPOSED OF UNDER
THE REQUIREMENTS OF THIS ACT; EXCEPT THAT ANY PUBLIC OFFICIAL OF THIS
STATE, CHARGED BY LAW WITH SUCH DUTIES, MAY REMOVE OR SUPERVISE THE
REMOVAL OF ANY SUCH DEAD BODIES AND THE DISPOSAL THEREOF BY ANY METHOD
PROVIDED FOR BY THIS ACT WHERE NECESSARY TO PROTECT THE PUBLIC HEALTH
AND WELFARE. 

"(C)  ALL VEHICLES USED IN THE TRANSPORTATION OF THE BODIES OF DEAD
ANIMALS, UNDER THE PROVISIONS OF THIS ACT, SHALL HAVE A TANK OR METAL
LINING IN THE BED OF SUCH VEHICLE, OR BE OTHERWISE SO CONSTRUCTED THAT
THE SAME SHALL BE PRACTICALLY WATERTIGHT, SO THAT NO DRIPPINGS OR
SEEPING FROM SUCH DEAD BODIES SHALL ESCAPE FROM SUCH VEHICLES WHERE
THIS CAN BE OBVIATED; AND ALL VEHICLES MUST HAVE AN END-GATE
CONSTRUCTED OR LINED WITH THE SAME MATERIALS, AND HINGED AT THE BOTTOM
AND FASTENED FIRMLY AT THE TOP WHEN CLOSED AND SO DESIGNED, SO FAR AS
PRACTICAL, THAT DRIPPINGS AND SEEPINGS SHALL NOT ESCAPE FROM SUCH PART
OF SAID VEHICLE WHILE ENGAGED IN SUCH TRANSPORTATION; AND EVERY SUCH
VEHICLE SHALL HAVE A BED OF SUCH DEPTH AND TYPE OF CONSTRUCTION AND
EQUIPMENT THAT ANY DEAD BODY OR BODIES THEREIN SHALL BE COMPLETELY
HIDDEN FROM VIEW OF PERSONS USING THE HIGHWAYS AND ANY PUBLIC NUISANCE
OBVIATED WHILE BEING TRANSPORTED. 

"(D)  THE STATE VETERINARIAN MAY PRESCRIBE SPECIFIC AND ALSO
ADDITIONAL REQUIREMENTS, NOT INCONSISTENT WITH THE PROVISIONS AND
PURPOSES OF THIS ACT, GOVERNING AND REGULATING SUCH TRANSPORTATION AND
THE CONSTRUCTION, EQUIPMENT, MAINTENANCE AND OPERATION OF SUCH
VEHICLES. 

"(E)  AFTER THE BODIES OF DEAD ANIMALS HAVE BEEN UNLOADED FROM ANY
VEHICLE USED FOR THE TRANSPORTATION THEREOF TO THE DISPOSAL PLANT, ON
EACH TRIP, SUCH VEHICLE AND ALL PARTS THEREOF, AND IN THE EVENT DRAUGHT
ANIMALS ARE USED TO DRAW SUCH CONVEYANCES, THE FEET OF SUCH ANIMALS,
SHALL BE THOROUGHLY CLEANSED AND DISINFECTED IN SUCH MANNER AND WITH
SUCH A SOLUTION AS THE STATE VETERINARIAN SHALL PRESCRIBE BY
REGULATION, AND IN ADDITION THERETO ALL SUCH VEHICLES SHALL BE WASHED
OUT THOROUGHLY WITH STEAM OR HOT WATER AFTER EACH USE THEREOF IN
TRANSPORTING SUCH DEAD BODIES. 

"(F)  VEHICLES, WHEN LOADED WITH THE BODY OF AN ANIMAL WHICH HAS DIED
OF DISEASE, SHALL BE DRIVEN DIRECTLY TO THE PLACE OF DISPOSAL, EXCEPT
THAT THE DRIVER MAY STOP ON THE HIGHWAY FOR OTHER LIKE DEAD BODIES, BUT
HE SHALL NOT DRIVE UPON THE PREMISES OF ANY PERSON UNLESS HE FIRST
OBTAINS THE PERMISSION OF SUCH PERSON AND HE SHALL AVOID CREATING ANY
NUISANCE, DURING SUCH TRANSPORTATION AND IN THE EVENT ANY DRIPPINGS OR
SEEPAGE SHOULD ESCAPE FROM SUCH VEHICLE, TO HIS KNOWLEDGE, HE SHALL
CLEAN UP THE SAME AND REMEDY SUCH ESCAPE, IF POSSIBLE TO DO SO." 

FN2  "DOUBTLESS THE STATES HAVE POWER TO PROVIDE BY LAW SUITABLE
MEASURES TO PREVENT THE INTRODUCTION INTO THE STATES OF ARTICLES OF
TRADE, WHICH, ON ACCOUNT OF THEIR EXISTING CONDITION, WOULD BRING IN
AND SPREAD DISEASE, PESTILENCE, AND DEATH, SUCH AS RAGS OR OTHER
SUBSTANCES INFECTED WITH THE GERMS OF YELLOW FEVER OR THE VIRUS OF
SMALL-POX, OR CATTLE OR MEAT OR OTHER PROVISIONS THAT ARE DISEASED OR
DECAYED, OR OTHERWISE, FROM THEIR CONDITION AND QUALITY, UNFIT FOR
HUMAN USE OR CONSUMPTION.  SUCH ARTICLES ARE NOT MERCHANTABLE; THEY ARE
NOT LEGITIMATE SUBJECTS OF TRADE AND COMMERCE.  THEY MAY BE RIGHTLY
OUTLAWED AS INTRINSICALLY AND DIRECTLY THE IMMEDIATE SOURCES AND CAUSES
OF DESTRUCTION TO HUMAN HEALTH AND LIFE.  THE SELF-PROTECTING POWER OF
EACH STATE, THEREFORE, MAY BE RIGHTFULLY EXERTED AGAINST THEIR
INTRODUCTION, AND SUCH EXERCISES OF POWER CANNOT BE CONSIDERED
REGULATIONS OF COMMERCE PROHIBITED BY THE CONSTITUTION."  BOWMAN V.
CHICAGO & N.W. RY. CO., 125 U.S. 465, 489. 
..END :














SMITH V. THE FERNCLIFF, 306 U.S. 444 


NO. 548.  ARGUED MARCH 2, 1939.  - DECIDED MARCH 27, 1939. 


1.  PROVISION IN A MARINE BILL OF LADING THAT CARRIER'S LIABILITY FOR
DAMAGE TO GOODS ON DELIVERY SHALL BE ADJUSTED AND SETTLED ON INVOICE
COST PLUS DISBURSEMENTS, HELD VALID.  ANSALDO SAN GIORGIO I V.
RHEINSTROM BROS. CO., 294 U.S. 494, DISTINGUISHED.  P. 448. 

2.  THE DAMAGES, AS MEASURED BY THIS CLAUSE, ARE COMPUTED BY
DEDUCTING THE VALUE OF THE DAMAGED GOODS IN THEIR DAMAGED CONDITION AT
THE TIME AND PLACE OF DELIVERY FROM THE INVOICE COST VALUATION AS FIXED
BY SUCH CLAUSE, NOT BY APPLYING TO THE INVOICE VALUE THE PERCENTAGE OF
LOSS OF THE DAMAGED GOODS, BASED ON DIFFERENCE BETWEEN SOUND VALUE AND
DAMAGED VALUE.  P. 450. 

SMITH ET AL., CO-PARTNERS, TRADING AS H.J. BAKER & BRO. V. THE
FERNCLIFF ET AL. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

RESPONSE TO QUESTIONS PROPOUNDED BY CERTIFICATE OF THE COURT BELOW IN
AN ADMIRALTY CASE, ON APPEAL TO THAT COURT FROM THE DISTRICT COURT.  22
F.SUPP.  728, 741-742. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS, FOURTH CIRCUIT, HAS CERTIFIED TO US THE
FOLLOWING STATEMENT OF FACTS AND QUESTIONS (U.S.C. TITLE 28, SEC. 346)
 

"STATEMENT OF FACTS. 

"THIS WAS A SUIT IN ADMIRALTY TO RECOVER DAMAGES TO SHIPMENTS OF FISH
MEAL MADE IN MARCH 1936(ON MOTORSHIP FERNCLIFF) FROM POINTS IN JAPAN TO
CONSIGNEES IN NORFOLK, VA. AND BALTIMORE, MD. UNDER BILLS OF LADING
CONTAINING THE FOLLOWING PROVISION: 

"'ALL CLAIMS FOR WHICH THE SHIP AND OR CARRIER MAY BE LIABLE SHALL BE
ADJUSTED AND SETTLED ON THE VALUE DECLARED BY THE SHIPPER OR ON THE NET
INVOICE COST PLUS DISBURSEMENTS, WHICHEVER SHALL BE THE LEAST.  THE
CARRIER SHALL NOT BE LIABLE FOR ANY PROFIT OR CONSEQUENTIAL OR SPECIAL
DAMAGES, AND SHALL HAVE THE OPTION OF REPLACING ANY LOST OR DAMAGED
GOODS.' 

"NO LOWER RATE WAS OFFERED THE SHIPPER FOR THE SERVICE RENDERED
BECAUSE OF THIS PROVISION; AND NO CHOICE OF RATES WITH AND WITHOUT THE
VALUATION CLAUSE WAS AFFORDED HIM.  (THE RECORD SHOWS THAT NO VALUE WAS
DECLARED BY THE SHIPPER ON THE SHIPMENT IN QUESTION.) 

"THE INVOICE COST OF THE FISH MEAL WAS $32.50 PER TON.  THE VALUE OF
THE DAMAGED PORTION OF THE SHIPMENT UPON ARRIVAL AT THE PORTS OF
DESTINATION WAS $25.00 PER TON.  THE MARKET VALUE OF UNDAMAGED FISH
MEAL AT THE PORTS OF DESTINATION AT THE TIME OF THE ARRIVAL OF THE
SHIPMENT WAS $36.00 PER TON. 

"THE COURT BELOW HELD THE VALUATION CLAUSE VALID AND COMPUTED THE
DAMAGES ON THE BASIS OF THE DIFFERENCE BETWEEN THE INVOICE COST ($32.50
PER TON) AND THE VALUE OF THE DAMAGED FISH MEAL AT THE TIME AND PLACE
OF DELIVERY ($25.00 PER TON). 

"APPELLANTS, WHILE NOT CONTENDING BEFORE US THAT THE CLAUSE QUOTED IS
ABSOLUTELY INVALID, CONTEND THAT IN VIEW OF THE DECISION IN ANSALDO SAN
GIORGIO V. RHEINSTROM BROS. CO., 294 U.S. 494, ITS VALIDITY CAN BE
SUSTAINED ONLY IF IT BE CONSTRUED AS REQUIRING THAT, IN ESTIMATING
DAMAGES, THE PERCENTAGE OF LOSS ON THE DAMAGED SHIPMENT BE ASCERTAINED
AND APPLIED TO THE INVOICE COST.  UNDER THIS CONTENTION, THE LOSS HERE
WOULD BE DETERMINED, NOT BY DEDUCTING THE VALUE UPON ARRIVAL ($25.00
PER TON) FROM THE INVOICE COST ($32.50 PER TON), BUT BY ASCERTAINING
THE PROPORTION OF THE INVOICE COST ($32.50) CORRESPONDING TO THE
PROPORTION WHICH THE ACTUAL LOSS ($36.00-$25.00 $11.00) BEARS TO SOUND
VALUE ($36.00), I.E. BY TAKING 11/36 OF $32.50.  IT IS POINTED OUT THAT
THIS IS THE METHOD USED IN CALCULATING THE AMOUNT OF LOSS UNDER A
VALUED MARINE INSURANCE POLICY ON CARGO AND ALSO THE METHOD PRESCRIBED
BY RULE 16 OF THE YORK-ANTWERP RULES FOR A GENERAL AVERAGE ADJUSTMENT. 
AND IT WAS STATED AT THE BAR OF THE COURT BY COUNSEL FOR APPELLANT THAT
THE SAME METHOD HAS BEEN GENERALLY EMPLOYED IN ESTIMATING CARGO DAMAGE
SINCE THE DECISION IN ANSALDO SAN GIORGIO V. RHEINSTROM BROS. CO.,
SUPRA.  (AT THE TIME THIS STATEMENT OF COUNSEL WAS MADE IT WAS
CHALLENGED BY OPPOSING COUNSEL AND NOTHING APPEARS IN THE RECORD WITH
REGARD THERETO.) 

"IN THE ABSENCE OF THE DECISION IN THE ANSALDO SAN GIORGIO CASE, WE
SHOULD AFFIRM THE DECISION BELOW ON THE AUTHORITY OF GULF, C. & S.F.
RY. CO. V. TEXAS PACKING CO., 244 U.S. 31, 37; PENNSYLVANIA R. CO. V.
OLIVIT BROS., 243 U.S. 574, 586; HART V. PENNSYLVANIA R. CO., 112 U.S.
331; THE CALIFORNIAN, 2 CIR., 82 F.2D 283; DUPLAN SILK CO. V. LEHIGH
VALLEY R. CO., 2 CIR., 223 F. 600; AND THE ONEIDA, 2 CIR., 128 F. 687. 
IN VIEW OF THAT DECISION, HOWEVER, WE ARE DIVIDED AND IN DOUBT AS TO
THE VALIDITY OF SUCH A CLAUSE AS IS HERE INVOLVED AND AS TO THE METHOD
WHICH SHOULD BE EMPLOYED IN COMPUTING DAMAGES UNDER IT.
NOTWITHSTANDING THE PASSAGE OF THE CARRIAGE OF GOODS BY SEA ACT OF
APRIL 16, 1936, C. 229, SEC. 4, 49 STAT. 1210, 46 U.S.C. 1304(5), THE
QUESTION AS TO THE CORRECT METHOD OF COMPUTING DAMAGES UNDER A
VALUATION CLAUSE IS DEEMED AN IMPORTANT ONE, AS TO WHICH AN
AUTHORITATIVE DECISION WOULD SEEM DESIRABLE.  WE, THEREFORE,
RESPECTFULLY CERTIFY TO THE SUPREME COURT OF THE UNITED STATES THE
FOLLOWING QUESTIONS OF LAW AS INDISPENSABLE TO A PROPER DECISION OF
THIS CASE: 

"QUESTIONS. 

"1.  IS AN INVOICE COST VALUATION CLAUSE, SUCH AS THAT HERE INVOLVED,
INSERTED IN A MARINE BILL OF LADING WITHOUT OFFERING A CHOICE OF RATES
TO A SHIPPER, VALID AND BINDING UPON THE PARTIES? 

"2.  IF SO, SHOULD DAMAGES TO A SHIPMENT BE ASCERTAINED, UNDER SUCH A
VALUATION CLAUSE, BY DEDUCTING THE VALUE OF THE DAMAGED GOODS IN THEIR
DAMAGED CONDITION AT THE TIME AND PLACE OF DELIVERY FROM THE INVOICE
COST VALUATION AS FIXED BY SUCH CLAUSE? 

"3.  OR, SHOULD THE PERCENTAGE OF LOSS OF THE DAMAGED GOODS, BASED ON
DIFFERENCE BETWEEN SOUND VALUE AND DAMAGED VALUE, BE ASCERTAINED AND
THE PERCENTAGE APPLIED TO THE INVOICE VALUE FOR THE PURPOSE OF
ASCERTAINING THE DAMAGE?" 

ANSALDO SAN GIORGIO I V. RHEINSTROM BROS. CO., 294 U.S. 494,
CONSIDERED AND HELD INVALID, BECAUSE AGAINST SOUND PUBLIC POLICY, THE
FOLLOWING LIMITATION AGREEMENT IN A MARITIME BILL OF LADING:  "IN THE
EVENT OF CLAIMS FOR LOSS, DAMAGE OR SHORT DELIVERY THE SAME SHALL BE
ADJUSTED ON THE BASIS OF THE INVOICE VALUE OF THE ENTIRE SHIPMENT
ADDING EXPENSES NECESSARILY INCURRED."  THE OPINION DID NOT ADJUDICATE
THE VALIDITY OR EFFECT OF A CLAUSE, SUCH AS THE ONE NOW BEFORE US,
WHERE THE PARTIES ADOPTED "AN AGREED VALUE AS A MEASURE OF RECOVERY FOR
LOSS OR DAMAGE TO GOODS NOT DELIVERED BY THE CARRIER OR DAMAGED IN
TRANSIT," AND IT DOES NOT CONTROL THE QUESTIONS HERE INVOLVED. 

THE CLAUSE IN QUESTION PRESCRIBES A MEASURE OF RECOVERY RATHER THAN
LIMITS THE AMOUNT WHICH MAY BE RECOVERED WHEN LOSS OR DAMAGE OCCURS. 
FOR A LONG TIME, IN THE ABSENCE OF A CONTROLLING STATUTE, FRAUD OR
IMPOSITION, SUCH PROVISIONS IN BILLS OF LADING HAVE BEEN RECOGNIZED AS
VALID BY THIS AND OTHER FEDERAL COURTS.  ALSO BY MANY - PERHAPS A
MAJORITY - OF THE STATE COURTS.  HART V. PENNSYLVANIA RAILROAD CO., 112
U.S. 331, 337-340; PHOENIX INSURANCE CO. V. ERIE & W. TRANSPORTATION
CO., 117 U.S. 312, 322; PENNSYLVANIA R. CO. V. OLIVIT BROS., 243 U.S.
574, 586; GULF, C. & S.F. RY. CO. V. TEXAS PACKING CO., 244 U.S. 31,
37; THE ELLERDALE, 10 F.2D 53; THE ASUARCA, 13 F.2D 222, 223; THE
MERAUKE, 31 F.2D 974; KILTHAU V. INTERNATIONAL MERCANTILE MARINE CO.,
245 N.Y. 361, 365; 157 N.E. 267; COLEMAN V. NEW YORK, N.H. & H.R. CO.,
215 MASS. 45, 49; 102 N.E. 92; SHAFFER & CO. V. CHICAGO, R.I. & P. RY.
CO., 21 I.C.C. 8; IN THE MATTER OF BILLS OF LADING, 52 I.C.C. 671, 710;
NOTE, LAWYERS' REPORTS ANNO.  1918B, 720, WHERE THE PERTINENT CASES ARE
COLLECTED. 

CHICAGO, M. & ST. P. RY. CO. V. MCCAULL-DINSMORE CO., 253 U.S. 97,
98, 99-100, INVOLVED THE FOLLOWING CLAUSE IN A BILL ISSUED BY THE
RAILWAY - "THE AMOUNT OF ANY LOSS OR DAMAGE FOR WHICH ANY CARRIER IS
LIABLE SHALL BE COMPUTED ON THE BASIS OF THE VALUE OF THE PROPERTY AT
THE PLACE AND TIME OF SHIPMENT UNDER THIS BILL OF LADING, INCLUDING
FREIGHT CHARGES, IF PAID."  WE SAID - 

"BEFORE THE PASSAGE OF THIS AMENDMENT (THE CUMMINS AMENDMENT, ACT
MARCH 4, 1915, C. 176, 38 STAT. 1196) THE INTERSTATE COMMERCE
COMMISSION HAD UPHELD THE CLAUSE IN THE BILL OF LADING AS IN NO WAY
LIMITING THE CARRIERS' LIABILITY TO LESS THAN THE VALUE OF THE GOODS
BUT MERELY OFFERING THE MOST CONVENIENT WAY OF FINDING THE VALUE.  ...
WE APPRECIATE THE CONVENIENCE OF THE STIPULATION IN THE BILL OF LADING
AND THE ARGUMENTS URGED IN ITS FAVOR.  WE UNDERSTAND THAT IT DOES NOT
NECESSARILY PREVENT A RECOVERY OF THE FULL ACTUAL LOSS, AND THAT IF THE
PRICE OF WHEAT HAD GONE DOWN THE CARRIER MIGHT HAVE HAD TO PAY MORE
UNDER THIS CONTRACT THAN BY THE COMMON LAW RULE.  BUT THE QUESTION IS
HOW THE CONTRACT OPERATES UPON THIS CASE."  THE CLAUSE WAS DECLARED
INOPERATIVE BECAUSE FORBIDDEN BY THE CUMMINS AMENDMENT, WHICH DID NOT
EXTEND TO OCEAN CARRIERS.  UNION PACIFIC R. CO. V. BURKE, 255 U.S. 317,
322. 

THE DISTRICT COURT UPHELD AND APPLIED THE AGREEMENT, AND SUPPORTED
ITS VIEWS BY A CAREFUL OPINION - (22 F.SUPP.  728, 742-744).  IT SAID
 

"THE CLAUSE WE ARE HERE DEALING WITH DOES NOT APPEAR TO OPERATE IN
THAT WAY (I.E., 'TO RELIEVE THE CARRIER FROM THE CONSEQUENCES OF ITS
NEGLIGENCE').  ...  THE CLAUSE IS GRATIFIED BY DETERMINING THE AMOUNT
OF THE WHOLE TONNAGE DAMAGED, AND MULTIPLYING BY THE DAMAGE PER TON. 
... IN OPERATION THE CLAUSE ONLY ELIMINATES PROSPECTIVE PROFIT, AND
LIMITS THE DAMAGE TO THE OWNER'S ACTUAL LOSS IN THE TRANSACTION.  IT
MAY EVEN OPERATE TO HIS ADVANTAGE IF THE MARKET VALUE AT DESTINATION IS
LESS THAN THE INVOICE VALUE.  IN MY OPINION THE CLAUSE IS THEREFORE
DIFFERENT IN ITS OPERATION AND EFFECT FROM THAT CONDEMNED IN THE
ANSALDO CASE.  (294 U.S. 494.) 

"IN THE ANSALDO CASE TWO GENERAL TYPES OF VALUATION CLAUSES WERE
CONSIDERED, ONE DESCRIBED AS A 'TRUE LIMITATION AGREEMENT' AND THE
OTHER AS A 'TRUE VALUATION CLAUSE.'  THE ONE INVOLVED IN THIS CASE
WOULD SEEM TO FALL IN THE LATTER CATEGORY.  ...  I TAKE THE VIEW AFTER
READING THE CASES SPECIALLY CITED IN THE OPINION AND OTHER
CONSIDERATION OF THE SUBJECT, THAT THE CLAUSE AS HERE WORDED IS NOT
AGAINST PUBLIC POLICY AND SHOULD BE GIVEN EFFECT.  ...  THE GENERAL
RULE OF OUR LAW IS FREEDOM OF CONTRACT, SUBJECT ONLY TO STATUTE AND
CONSIDERATIONS OF THE PUBLIC INTEREST.  WHERE A CONTRACT STIPULATION IS
NOT CLEARLY OPPOSED TO PUBLIC POLICY IT SHOULD BE UPHELD, AS IT IS THE
AGREEMENT OF THE PARTIES.  THE PARTICULAR QUESTION IS NOT LIKELY TO
AGAIN ARISE AS THE SUBJECT IS NOW REGULATED BY THE CARRIAGE OF GOODS BY
SEA ACT, SEC. 4(5), 46 U.S.C.A. SEC. 1304(5). 

     .         .         .     .         . 

"ASSUMING THE VALIDITY OF THE BILL OF LADING CLAUSE THAT CLAIMS
AGAINST THE CARRIER SHALL BE ADJUSTED AND SETTLED ON THE NET INVOICE
COST PLUS DISBURSEMENTS  ...  IT IS NOW CONTENDED THAT THE PROPER
METHOD OF CALCULATION IS TO FIRST DETERMINE WHAT WAS THE PERCENTAGE OF
DAMAGE OR LOSS, AND THEN APPLY THIS PERCENTAGE TO THE INVOICE VALUE. 

     .   .         .         .         . 

"COUNSEL FOR THE LIBELANTS POINT OUT THAT THIS IS THE METHOD OF
CALCULATING THE AMOUNT OF LOSS UNDER A VALUED MARINE INSURANCE POLICY
ON CARGO.  ...  IT IS FRANKLY ADMITTED BY COUNSEL THAT THIS METHOD OF
CALCULATING DAMAGES HAS NEVER HERETOFORE BEEN APPLIED BY ANY COURT IN A
CASE DEALING WITH A CLAUSE SUBMITTING INVOICE VALUE FOR MARKET VALUE. 
ON THE CONTRARY IT IS MY UNDERSTANDING THAT THE CALCULATION AS MADE IN
THE OPINION, WHICH WAS TO DEDUCT FROM THE INVOICE VALUE (WHICH IN THIS
CASE INCLUDED FREIGHT AND OTHER EXPENSES) THE DAMAGED VALUE HAS BEEN
UNIFORMLY APPLIED." 

WE THINK THE DISTRICT COURT REACHED THE CORRECT CONCLUSION IN RESPECT
OF THE MOOTED CLAUSE UPON ADEQUATE AUTHORITY AND REASONING. 

TO THE FIRST CERTIFIED QUESTION, WE REPLY, YES WHERE THERE HAS BEEN
NO FRAUD OR IMPOSITION; TO THE SECOND THE ANSWER IS, YES; TO THE THIRD,
NO.
..END :





LANZETTA V. NEW JERSEY, 306 U.S. 451 


NO. 308.  ARGUED JANUARY 9, 1939.  - DECIDED MARCH 27, 1939.  - 120
N.J.L. 189 - 198 A. 837, REVERSED. 


AN ACT OF NEW JERSEY DECLARES:  "ANY PERSON NOT ENGAGED IN ANY LAWFUL
OCCUPATION, KNOWN TO BE A MEMBER OF ANY GANG CONSISTING OF TWO OR MORE
PERSONS, WHO HAS BEEN CONVICTED AT LEAST THREE TIMES OF BEING A
DISORDERLY PERSON, OR WHO HAS BEEN CONVICTED OF ANY CRIME IN THIS OR
ANY OTHER STATE, IS DECLARED TO BE A GANGSTER  ...  "  EVERY VIOLATION
IS PUNISHABLE BY FINE NOT EXCEEDING $10,000 OR IMPRISONMENT NOT
EXCEEDING 20 YEARS, OR BOTH.  HELD REPUGNANT TO THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT, BECAUSE OF ITS VAGUENES AND UNCERTAINTY. 
P. 453. 

LANZETTA ET AL. V. NEW JERSEY. 

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

APPEAL FROM A JUDGMENT AFFIRMING A CONVICTION AND SENTENCE OF THREE
MEN AS GANGSTERS.  SEE ALSO 118 N.J.L. 212; 192 A. 89. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

BY THIS APPEAL WE ARE CALLED ON TO DECIDE WHETHER, BY REASON OF
VAGUENESS AND UNCERTAINTY, A RECENT ENACTMENT OF NEW JERSEY, SEC. 4, C.
155, LAWS 1934, IS REPUGNANT TO THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  IT IS AS FOLLOWS:  "ANY PERSON NOT ENGAGED IN
ANY LAWFUL OCCUPATION, KNOWN TO BE A MEMBER OF ANY GANG CONSISTING OF
TWO OR MORE PERSONS, WHO HAS BEEN CONVICTED AT LEAST THREE TIMES OF
BEING A DISORDERLY PERSON, OR WHO HAS BEEN CONVICTED OF ANY CRIME IN
THIS OR IN ANY OTHER STATE, IS DECLARED TO BE A GANGSTER  ...  "  FN1
EVERY VIOLATION IS PUNISHABLE BY FINE NOT EXCEEDING $10,000 OR
IMPRISONMENT NOT EXCEEDING 20 YEARS, OR BOTH.  SEC. 5. 

IN THE COURT OF QUARTER SESSIONS OF CAPE MAY COUNTY, APPELLANTS WERE
ACCUSED OF VIOLATING THE QUOTED CLAUSE.  THE INDICTMENT CHARGES THAT ON
FOUR DAYS, JUNE 12, 16, 19, AND 24, 1936 "THEY, AND EACH OF THEM, NOT
BEING ENGAGED IN ANY LAWFUL OCCUPATION; THEY, AND ALL OF THEM, KNOWN TO
BE MEMBERS OF A GANG, CONSISTING OF TWO OR MORE PERSONS, AND THEY, AND
EACH OF THEM, HAVING BEEN CONVICTED OF A CRIME IN THE STATE OF
PENNSYLVANIA, ARE HEREBY DECLARED TO BE GANGSTERS."  THERE WAS A TRIAL,
VERDICT OF GUILTY, AND JUDGMENT OF CONVICTION ON WHICH EACH WAS
SENTENCED TO BE IMPRISONED IN THE STATE PRISON FOR NOT MORE THAN TEN
YEARS AND NOT LESS THAN FIVE YEARS, AT HARD LABOR.  ON THE AUTHORITY OF
ITS RECENT DECISION IN STATE V. BELL, 188 A. 737; 15 N.J. MISC. 109,
THE SUPREME COURT ENTERED JUDGMENT AFFIRMING THE CONVICTION.  118
N.J.L. 212; 192 A. 89.  THE COURT OF ERRORS AND APPEALS AFFIRMED, 120
N.J.L. 189; 197 A. 360, ON THE AUTHORITY OF ITS DECISION, STATE V.
GAYNOR, 119 N.J.L. 582; 198 A. 837, AFFIRMING STATE V. BELL. 

IF ON ITS FACE THE CHALLENGED PROVISION IS REPUGNANT TO THE DUE
PROCESS CLAUSE, SPECIFICATION OF DETAILS OF THE OFFENSE INTENDED TO BE
CHARGED WOULD NOT SERVE TO VALIDATE IT.  CF. UNITED STATES V. REESE, 92
U.S. 214, 221; CZARRA V. BOARD OF MEDICAL SUPERVISORS, 25 APP. D.C.
443, 453.  IT IS THE STATUTE, NOT THE ACCUSATION UNDER IT, THAT
PRESCRIBES THE RULE TO GOVERN CONDUCT AND WARNS AGAINST TRANSGRESSION. 
SEE STROMBERG V. CALIFORNIA, 283 U.S. 359, 368; LOVELL V. GRIFFIN, 303
U.S. 444.  NO ONE MAY BE REQUIRED AT PERIL OF LIFE, LIBERTY OR PROPERTY
TO SPECULATE AS TO THE MEANING OF PENAL STATUTES.  ALL ARE ENTITLED TO
BE INFORMED AS TO WHAT THE STATE COMMANDS OR FORBIDS.  FN2  THE
APPLICABLE RULE IS STATED IN CONNALLY V. GENERAL CONSTRUCTION CO., 269
U.S. 385, 391:  "THAT THE TERMS OF A PENAL STATUTE CREATING A NEW
OFFENSE MUST BE SUFFICIENTLY EXPLICIT TO INFORM THOSE WHO ARE SUBJECT
TO IT WHAT CONDUCT ON THEIR PART WILL RENDER THEM LIABLE TO ITS
PENALTIES, IS A WELL-RECOGNIZED REQUIREMENT, CONSONANT ALIKE WITH
ORDINARY NOTIONS OF FAIR PLAY AND THE SETTLED RULES OF LAW.  AND 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." 

THE PHRASE "CONSISTING OF TWO OR MORE PERSONS" IS ALL THAT PURPORTS
TO DEFINE "GANG."  THE MEANINGS OF THAT WORD INDICATED IN DICTIONARIES
AND IN HISTORICAL AND SOCIOLOGICAL WRITINGS ARE NUMEROUS AND VARIED. 
FN3  NOR IS THE MEANING DERIVABLE FROM THE COMMON LAW,  FN4  FOR
NEITHER IN THAT FIELD NOR ANYWHERE IN THE LANGUAGE OF THE LAW IS THERE
DEFINITION OF THE WORD.  OUR ATTENTION HAS NOT BEEN CALLED TO, AND WE
ARE UNABLE TO FIND, ANY OTHER STATUTE ATTEMPTING TO MAKE IT CRIMINAL TO
BE A MEMBER OF A "GANG."  FN5 

IN STATE V. GAYNOR, SUPRA, THE COURT OF ERRORS AND APPEALS DEALT WITH
THE WORD.  IT SAID: "PUBLIC POLICY ORDAINS THAT A COMBINATION DESIGNED
TO WAGE WAR UPON SOCIETY SHALL BE DISPERSED AND ITS MEMBERS RENDERED
INCAPABLE OF HARM.  THIS IS THE OBJECTIVE OF SECTION 4  ...  AND IT IS
THEREFORE A VALID EXERCISE OF THE LEGISLATIVE POWER.  ...  THE EVIDENT
AIM OF THIS PROVISION WAS TO RENDER PENAL THE ASSOCIATION OF CRIMINALS
FOR THE PURSUIT OF CRIMINAL ENTERPRISES; THAT IS THE GIST OF THE
LEGISLATIVE EXPRESSION.  IT CANNOT BE GAINSAID THAT SUCH WAS WITHIN THE
COMPETENCY OF THE LEGISLATURE; THE MERE STATEMENT OF THE PURPOSE
CARRIES JUSTIFICATION OF THE ACT.  ...  IF SOCIETY CANNOT IMPOSE SUCH
TAINT OF ILLEGALITY UPON THE CONFEDERATION OF CONVICTED CRIMINALS, WHO
HAVE NO LAWFUL OCCUPATION, UNDER CIRCUMSTANCES DENOTING  ...  THE
PURSUIT OF CRIMINAL OBJECTIVES, IT IS HELPLESS AGAINST ONE OF THE MOST
MENACING FORMS OF EVIL ACTIVITY.  ...  THE PRIMARY FUNCTION OF
GOVERNMENT  ...  IS TO RENDER SECURITY TO ITS SUBJECTS.  AND ANY
MISCHIEF MENACING THAT SECURITY DEMANDS A REMEDY COMMENSURATE WITH THE
EVIL." 

THEN UNDERTAKING TO FIND THE MEANING OF "GANG" AS USED IN THE
CHALLENGED ENACTMENT, THE OPINION STATES:  "IN THE CONSTRUCTION OF THE
PROVISION, THE WORD IS TO BE GIVEN A MEANING CONSISTENT WITH THE
GENERAL OBJECT OF THE STATUTE.  IN ITS ORIGINAL SENSE IT SIGNIFIES
ACTION - 'TO GO'; IN ITS MODERN USAGE, WITHOUT QUALIFICATION, IT
DENOTES - IN COMMON INTENT AND UNDERSTANDING - CRIMINAL ACTION.  IT IS
DEFINED AS 'A COMPANY OF PERSONS ACTING TOGETHER FOR SOME PURPOSE,
USUALLY CRIMINAL,' WHILE THE TERM 'GANGSTER' IS DEFINED AS 'A MEMBER OF
A GANG OF ROUGHS, HIRELING CRIMINALS, THIEVES, OR THE LIKE.'  WEBSTER'S
NEW INTERNATIONAL DICTIONARY (2D ED.).  AND THE OXFORD ENGLISH
DICTIONARY LIKEWISE DEFINES THE WORD 'GANG' AS 'ANY COMPANY OF PERSONS
WHO GO ABOUT TOGETHER OR ACT IN CONCERT (IN MODERN USE MAINLY FOR
CRIMINAL PURPOSES).'  SUCH IS PLAINLY THE LEGISLATIVE SENSE OF THE
TERM." 

IF WORDED IN ACCORDANCE WITH THE COURT'S EXPLICATION, THE CHALLENGED
PROVISION WOULD READ AS FOLLOWS:  "ANY PERSON NOT ENGAGED IN ANY LAWFUL
OCCUPATION, KNOWN TO BE A MEMBER OF ANY GANG CONSISTING OF TWO OR MORE
PERSONS (MEANING A COMPANY OF PERSONS ACTING TOGETHER FOR SOME PURPOSE,
USUALLY CRIMINAL, OR A COMPANY OF PERSONS WHO GO ABOUT TOGETHER OR WHO
ACT IN CONCERT, MAINLY FOR CRIMINAL PURPOSES), WHO HAS BEEN CONVICTED
AT LEAST THREE TIMES OF BEING A DISORDERLY PERSON OR WHO HAS BEEN
CONVICTED OF ANY CRIME IN THIS OR IN ANY OTHER STATE, IS DECLARED TO BE
A GANGSTER (MEANING A MEMBER OF A GANG OF ROUGHS, HIRELING CRIMINALS,
THIEVES, OR THE LIKE)." 

APPELLANTS WERE CONVICTED BEFORE THE OPINION IN STATE V. GAYNOR.  IT
WOULD BE HARD TO HOLD THAT, IN ADVANCE OF JUDICIAL UTTERANCE UPON THE
SUBJECT, THEY WERE BOUND TO UNDERSTAND THE CHALLENGED PROVISION
ACCORDING TO THE LANGUAGE LATER USED BY THE COURT.  INDEED THE STATE
SUPREME COURT (STATE V. BELL, SUPRA) WENT ON SUPPOSED ANALOGY BETWEEN
"GANG" AND OFFENSES DENOUNCED BY THE DISORDERLY PERSONS ACT, COMP.
STAT. SUPP. 1930, SEC. 59-1 UPHELD BY THE COURT OF ERRORS AND APPEALS
IN LEVINE V. STATE, 110 N.J.L. 467, 470; 166 A. 330.  BUT THE COURT IN
THAT CASE FOUND THE MEANING OF "COMMON BURGLAR" THERE INVOLVED TO BE
DERIVABLE FROM THE COMMON LAW. 

THE DESCRIPTIONS AND ILLUSTRATIONS USED BY THE COURT TO INDICATE THE
MEANING OF "GANG" ARE NOT SUFFICIENT TO CONSTITUTE DEFINITION,
INCLUSIVE OR EXCLUSIVE.  THE COURT'S OPINION WAS FRAMED TO APPLY THE
STATUTE TO THE OFFENDERS AND ACCUSATION IN THE CASE THEN UNDER
CONSIDERATION; IT DOES NOT PURPORT TO GIVE ANY INTERPRETATION GENERALLY
APPLICABLE.  THE STATE COURT DID NOT FIND, AND WE CANNOT, THAT "GANG"
HAS EVER BEEN LIMITED IN MEANING TO A GROUP HAVING PURPOSE TO COMMIT
ANY PARTICULAR OFFENSE OR CLASS OF CRIMES, OR THAT IT HAS NOT QUITE
FREQUENTLY BEEN USED IN REFERENCE TO GROUPS OF TWO OR MORE PERSONS NOT
TO BE SUSPECTED OF CRIMINALITY OR OF ANYTHING THAT IS UNLAWFUL.  THE
DICTIONARY DEFINITIONS ADOPTED BY THE STATE COURT EXTEND TO PERSONS
ACTING TOGETHER FOR SOME PURPOSE, "USUALLY CRIMINAL," OR "MAINLY FOR
CRIMINAL PURPOSES."  SO DEFINED, THE PURPOSES OF THOSE CONSTITUTING
SOME GANGS MAY BE COMMENDABLE, AS, FOR EXAMPLE, GROUPS OF WORKERS
ENGAGED UNDER LEADERSHIP IN ANY LAWFUL UNDERTAKING.  THE STATUTE DOES
NOT DECLARE EVERY MEMBER TO BE A "GANGSTER" OR PUNISHABLE AS SUCH. 
UNDER IT, NO MEMBER IS A GANGSTER OR OFFENDER UNLESS CONVICTED OF BEING
A DISORDERLY PERSON OR OF CRIME AS SPECIFIED.  IT CANNOT BE SAID THAT
THE COURT INTENDED TO GIVE "GANGSTER" A MEANING BROAD ENOUGH TO INCLUDE
ANYONE WHO HAD NOT BEEN SO CONVICTED OR TO LIMIT ITS MEANING TO THE
FIELD COVERED BY THE WORDS THAT IT FOUND IN A DICTIONARY, "ROUGHS,
HIRELING CRIMINALS, THIEVES, OR THE LIKE."  THE LATTER INTERPRETATION
WOULD INCLUDE SOME OBVIOUSLY NOT WITHIN THE STATUTE AND WOULD EXCLUDE
SOME PLAINLY COVERED BY IT. 

THE LACK OF CERTAINTY OF THE CHALLENGED PROVISION IS NOT LIMITED TO
THE WORD "GANG" OR TO ITS DEPENDENT "GANGSTER."  WITHOUT RESOLVING THE
SERIOUS DOUBTS ARISING FROM THE GENERALITY OF THE LANGUAGE, WE ASSUME
THAT THE CLAUSE "ANY PERSON NOT ENGAGED IN ANY LAWFUL OCCUPATION" IS
SUFFICIENT TO IDENTIFY A CLASS TO WHICH MUST BELONG ALL CAPABLE OF
BECOMING GANGSTERS WITHIN THE TERMS OF THE PROVISION.  THE ENACTMENT
EMPLOYS THE EXPRESSION, "KNOWN TO BE A MEMBER."  IT IS AMBIGUOUS. 
THERE IMMEDIATELY ARISES THE DOUBT WHETHER ACTUAL OR PUTATIVE
ASSOCIATION IS MEANT.  IF ACTUAL MEMBERSHIP IS REQUIRED, THAT STATUS
MUST BE ESTABLISHED AS A FACT, AND THE WORD "KNOWN" WOULD BE WITHOUT
SIGNIFICANCE.  IF REPUTED MEMBERSHIP IS ENOUGH, THERE IS UNCERTAINTY
WHETHER THAT REPUTATION MUST BE GENERAL OR EXTEND ONLY TO SOME
PERSONS.  AND THE STATUTE FAILS TO INDICATE WHAT CONSTITUTES MEMBERSHIP
OR HOW ONE MAY JOIN A "GANG." 

THE CHALLENGED PROVISION CONDEMNS NO ACT OR OMISSION; THE TERMS IT
EMPLOYS TO INDICATE WHAT IT PURPORTS TO DENOUNCE ARE SO VAGUE,
INDEFINITE AND UNCERTAIN THAT IT MUST BE CONDEMNED AS REPUGNANT TO THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  REVERSED. 

FN1  THE SECTION CONTINUES:  "PROVIDED, HOWEVER, THAT NOTHING IN THIS
PARTICIPANT OR SYMPATHIZER IN ANY LABOR DISPUTE."  THE PROVISO IS NOT
HERE INVOLVED. 

FN2  CHAMPLIN RFG.  CO. V. COMMISSION, 286 U.S. 210, 242, 243.  CLINE
V. FRINK DAIRY CO., 274 U.S. 445, 458.  CONNALLY V. GENERAL
CONSTRUCTION CO., 269 U.S. 385, 391-393.  SMALL CO. V. AMERICAN SUGAR
RFG.  CO., 267 U.S. 233, 239.  UNITED STATES V. COHEN GROCERY CO., 255
U.S. 81, 89-92.  COLLINS V. KENTUCKY, 234 U.S. 634, 638.  INTERNATIONAL
HARVESTER CO. V. KENTUCKY, 234 U.S. 216, 221-223.  CF. PEOPLE V.
BELCASTRO, 356 ILL. 144; 190 N.E. 301.  PEOPLE V. LICAVOLI, 264 MICH.
643; 250 N.W. 520. 

FN3  AMERICAN DICTIONARIES DEFINE THE WORD AS FOLLOWS: 

WEBSTER'S NEW INTERNATIONAL DICTIONARY (2D ED.):  "GANG  ...  ACT,
MANNER, OR MEANS OF GOING; PASSAGE, COURSE, OR JOURNEY  ...  A SET OR
FULL COMPLEMENT OF ANY ARTICLES; AN OUTFIT.  A NUMBER GOING IN OR
FORMING A COMPANY; AS, A GANG OF SAILORS; A GANG OF ELK.  SPECIF.:  ...
A GROUP OF PERSONS ASSOCIATED UNDER THE SAME DIRECTION; AS A GANG OF
PAVERS; A GANG OF SLAVES  ...  A COMPANY OF PERSONS ACTING TOGETHER FOR
SOME PURPOSE; USUALLY CRIMINAL, OR AT LEAST NOT GOOD OR RESPECTABLE;
AS, A POLITICAL GANG; A GANG OF ROUGHS.  ...  " 

FUNK & WAGNALLS NEW STANDARD DICTIONARY (1915):  "GANG  ...  A
COMPANY OR BAND OF PERSONS, OR SOMETIMES OF ANIMALS, GOING OR ACTING
TOGETHER; A GROUP OR SQUAD:  SOMETIMES IMPLYING COOPERATION FOR EVIL OR
DISREPUTABLE PURPOSES; AS, A GANG OF LABORERS; A GANG OF BURGLARS; HE
SET THE WHOLE GANG AT WORK.  ...  " 

CENTURY DICTIONARY AND CYCLOPEDIA (1903):  "GANG  ...  A NUMBER GOING
OR ACTING IN COMPANY, WHETHER OF PERSONS OR OF ANIMALS:  AS, A GANG OF
DROVERS; A GANG OF ELKS.  SPECIFICALLY - (A) A NUMBER OF PERSONS
ASSOCIATED FOR A PARTICULAR PURPOSE OR ON A PARTICULAR OCCASION:  USED
ESPECIALLY IN A DEPRECIATORY OR CONTEMPTUOUS SENSE OR OF DISREPUTABLE
PERSONS:  AS, A GANG OF THIEVES; A CHAIN-GANG  ...  (B) A NUMBER OF
WORKMEN OR LABORERS OF ANY KIND ENGAGED ON ANY PIECE OF WORK UNDER
SUPERVISION OF ONE PERSON; A SQUAD; MORE PARTICULARLY, A SHIFT OF MEN;
A SET OF LABORERS WORKING TOGETHER DURING THE SAME HOURS.  ...  " 

PART OF THE TEXT OF THE DEFINITIONS GIVEN BY THE OXFORD ENGLISH
DICTIONARY (1933) READS:  "GANG ...  A SET OF THINGS OR PERSONS  ...  A
COMPANY OF WORKMEN  ...  A COMPANY OF SLAVES OR PRISONERS ...  ANY BAND
OR COMPANY OF PERSONS WHO GO ABOUT TOGETHER OR ACT IN CONCERT (CHIEFLY
IN A BAD OR DEPRECIATORY SENSE, AND IN MOD. USAGE MAINLY ASSOCIATED
WITH CRIMINAL SOCIETIES)  ...  TO BE OF A GANG:  TO BELONG TO THE SAME
SOCIETY, TO HAVE THE SAME INTERESTS.  ..." 

ANOTHER ENGLISH DICTIONARY, WYLD'S UNIVERSAL DICTIONARY OF THE
ENGLISH LANGUAGE, DEFINES THE WORD AS FOLLOWS:  "GANG  ...  1.  A BAND,
GROUP, SQUAD; (A) OF LABOURERS WORKING TOGETHER; (B) OF SLAVES,
PRISONERS &C.  2.  (IN BAD SENSE)(A) A GROUP OF PERSONS ORGANIZED FOR
EVIL OR CRIMINAL PURPOSE:  A GANG OF BURGLARS &C; (B)(COLLOQ., IN
DISPARAGEMENT) A BODY, PARTY, GROUP, OF PERSONS: "I AM SICK OF THE
WHOLE GANG OF UNIVERSITY WIRE-PULLERS.  ...  "    SEE:  ASBURY,
HERBERT, THE GANGS OF NEW YORK, 1927, ALFRED A. KNOPF.  THRASHER,
FREDERIC M., "GANGS" IN ENCYCLOPAEDIA OF THE SOCIAL SCIENCES, 1931,
VOL. 6, P. 564, AND THE GANG:  A STUDY OF 1313 GANGS IN CHICAGO, 1927,
UNIVERSITY OF CHICAGO PRESS. 

FN4  SEE, E.G., CHAMPLIN RFG.  CO. V. COMMISSION, 286 U.S. 210, 242
243.  CONNALLY V. GENERAL CONST. CO., 269 U.S. 385, 391.  NASH V.
UNITED STATES, 229 U.S. 373. 

FN5  CF. KANS. LAWS 1935, C. 161.  ILL. LAWS 1933, P. 489, HELD
UNCONSTITUTIONAL IN PEOPLE V. BELCASTRO, 356 ILL. 144; 190 N.E. 301. 
MICH. COMP. LAWS (MASON, SUPP. 1935) SEC. 17115-167, HELD
UNCONSTITUTIONAL IN PEOPLE V. LICAVOLI, 264 MICH. 643; 250 N.W. 520. 
MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :



















CHESEBRO V. LOS ANGELES CO. DIST., 306 U.S. 459 


NO. 368.  ARGUED FEBRUARY 1, 2, 1939.  - DECIDED MARCH 27, 1939.  - 11
CAL.2D 395 - 80 P.2D 479, AFFIRMED. 


1.  BY AN AMENDMENT OF THE LOS ANGELES COUNTY FLOOD CONTROL ACT, THE
FLOOD CONTROL DISTRICT CREATED BY THAT ACT WAS AUTHORIZED TO ACQUIRE
CERTAIN DESIGNATED DRAINAGE IMPROVEMENTS LOCATED IN A NUMBER OF
DRAINAGE DISTRICTS EMBRACED WITHIN THE FLOOD CONTROL DISTRICT, AND TO
LEVY SPECIAL ASSESSMENTS UPON REAL ESTATE WITHIN THE FLOOD CONTROL
DISTRICT TO MEET DRAINAGE DISTRICT OBLIGATIONS THEREUPON ASSUMED BY THE
FLOOD CONTROL DISTRICT.  AN OWNER OF LAND LOCATED WITHIN THE FLOOD
CONTROL DISTRICT, BUT OUTSIDE OF ANY OF THE DRAINAGE DISTRICTS
INVOLVED, SOUGHT BY A PROCEEDING IN THE STATE COURT TO PREVENT
ASSESSMENTS UNDER THE AMENDING ACT, ON THE GROUND THAT HE WAS ENTITLED
TO A HEARING ON THE QUESTION OF BENEFITS AND THAT WITHOUT SUCH
OPPORTUNITY HIS PROPERTY WOULD BE TAKEN WITHOUT DUE PROCESS OF LAW IN
VIOLATION OF THE FOURTEENTH AMENDMENT.  THE STATE COURT RULED IN EFFECT
THAT THE LEGISLATURE HAD IMPLIEDLY MADE A FINDING AS TO BENEFITS AND
THAT THEREFORE OWNERS WERE NOT ENTITLED TO BE HEARD ON THAT QUESTION. 
ON APPEAL TO THIS COURT, THE OWNER CONTENDS THAT THERE WAS NO
FOUNDATION FOR THE RULING OF THE STATE COURT THAT THE LEGISLATURE HAD
MADE A FINDING OF BENEFITS, AND INSISTS THAT THE AMENDING ACT DEPRIVES
HIM OF HIS CONSTITUTIONAL RIGHT TO BE HEARD.  HELD: 

(1)  THE VALIDITY OF THE STATUTE WAS APPROPRIATELY DRAWN IN QUESTION
IN THE STATE COURT, AND ITS DECISION IN SUBSTANCE WAS IN FAVOR OF THE
VALIDITY.  P. 463. 

(2)  THE QUESTION PRESENTED IS NOT FORECLOSED BY PREVIOUS DECISIONS
OF THIS COURT NOR SO CLEARLY UNDEBATABLE AS TO REQUIRE DISMISSAL FOR
LACK OF SUBSTANCE.  P. 463. 

(3)  A CONTENTION THAT THE JUDGMENT OF THE STATE COURT RESTED UPON AN
INDEPENDENT AND ADEQUATE NON-FEDERAL GROUND LACKED MERIT.  P. 463. 

(4)  THE STATE COURT'S RULING THAT IMPLIEDLY THE LEGISLATURE MADE THE
REQUISITE FINDINGS AS TO BENEFITS WAS NOT WITHOUT ADEQUATE FOUNDATION
AND ITS JUDGMENT MUST BE SUSTAINED.  P. 466. 

2.  WHERE, WITHIN THE SCOPE OF ITS POWER, THE LEGISLATURE ITSELF HAS
FOUND THAT THE LANDS EMBRACED WITHIN A SPECIAL ASSESSMENT DISTRICT WILL
BE SPECIALLY BENEFITED BY CERTAIN IMPROVEMENTS, PRIOR APPROPRIATE AND
ADEQUATE INQUIRY IS PRESUMED AND, IN THE ABSENCE OF FLAGRANT ABUSE OR
PURELY ARBITRARY ACTION, THE FINDING IS CONCLUSIVE.  FORMAL OR EXPRESS
FINDINGS ARE NOT ESSENTIAL.  P. 464. 

CHESEBRO V. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT ET AL. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

APPEAL FROM A JUDGMENT OF THE STATE SUPREME COURT DENYING A WRIT OF
MANDATE.  AS TO THE CITY OF LOS ANGELES, A CO-APPELLANT, THE APPEAL WAS
DISMISSED FOR WANT OF A FEDERAL QUESTION, 305 U.S. 564. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

APPELLANT MAINTAINS THAT A CALIFORNIA STATUTE AUTHORIZING AN
ADMINISTRATIVE BOARD TO LEVY SPECIAL ASSESSMENTS ON HIS LAND WITHIN A
FLOOD CONTROL DISTRICT CREATED BY THE LEGISLATURE TO PAY COST OF LOCAL
IMPROVEMENTS AND FACILITIES AND OF THEIR OPERATION, MAINTENANCE, AND
BETTERMENT, WITHOUT PROVIDING HIM AN OPPORTUNITY TO BE HEARD ON THE
QUESTION OF BENEFITS, IS REPUGNANT TO THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT. 

CHAPTER 755, STATUTES 1915, CREATES THE LOS ANGELES FLOOD CONTROL
DISTRICT.  SECTION 2 DECLARES THAT THE PURPOSES OF THE ACT ARE TO
PROVIDE FOR THE CONTROL OF THE FLOOD AND STORM WATERS OF THE DISTRICT,
TO CONSERVE THEM FOR BENEFICIAL USES, AND TO PROTECT THE PROPERTY
WITHIN THE DISTRICT FROM DAMAGE BY FLOOD OR STORM WATERS.  SECTION 16
EMPOWERS THE BOARD OF SUPERVISORS OF THE DISTRICT TO CONSTRUCT ALL
IMPROVEMENTS AND TO ACQUIRE ALL PROPERTY THAT IS NECESSARY OR USEFUL
FOR CARRYING OUT THE PURPOSES OF THE ACT. 

CHAPTER 642, STATUTES 1937, ADDED SEC. 13 1/2 TO THE FLOOD CONTROL
ACT.  IT PROVIDES:  THE BOARD OF SUPERVISORS OF THE DISTRICT MAY ACCEPT
ON ITS BEHALF, A TRANSFER AND CONVEYANCE OF "ALL, BUT NOT LESS THAN
ALL," STORM DRAIN IMPROVEMENTS, DRAINAGE IMPROVEMENTS OR DRAINAGE
SYSTEMS OF DEFINED CLASSES LYING WITHIN THE DISTRICT.  UPON CONVEYANCE
TO THE DISTRICT OF ANY SUCH DRAINAGE WORKS IT SHALL BECOME LIABLE FOR
PRINCIPAL AND INTEREST OF BONDS THEREAFTER MATURING WHICH WERE ISSUED
BY ANY DRAINAGE DISTRICT TO PAY THE COST OF CONSTRUCTING THE
TRANSFERRED PROPERTY.  FOR THAT PURPOSE THE BOARD SHALL LEVY A SPECIAL
TAX EACH YEAR UPON THE TAXABLE REAL ESTATE IN THE DISTRICT. 

A MAP, THAT WITH APPELLANT'S CONSENT IS INCLUDED IN APPELLEES' BRIEF,
SHOWS THAT THE FLOOD CONTROL DISTRICT IS WITHIN AND NEARLY AS LARGE AS
LOS ANGELES COUNTY WHICH CONTAINS ALMOST 4,000 SQUARE MILES AND THAT
WITHIN IT THERE ARE ELEVEN DRAINAGE DISTRICTS, TWO OF WHICH WERE
ORGANIZED UNDER CHAPTER 258, STATUTES 1903, AND AMENDATORY ACTS, AND
NINE OF WHICH WERE ORGANIZED UNDER CHAPTER 354, STATUTES 1919, AND
AMENDATORY ACTS* . 

*THE TWO DISTRICTS ORGANIZED UNDER THE ACT OF 1903 AND AMENDATORY
ACTS ARE NO. 1, CONTAINING 2093 ACRES, AND NO. 3, CONTAINING 835
ACRES.  THE NUMBERS AND AREAS OF THE NINE ORGANIZED UNDER THE ACT OF
1919 AND AMENDATORY ACTS ARE AS FOLLOWS:  8,  - 5785 ACRES; 9,  - 503
ACRES; 11,  - 3067 ACRES; 17,  - 103 ACRES; 22,  - 4017 ACRES; 23,  -
8786 ACRES; 25,  - 72 ACRES; 26,  - 2199 ACRES; 29,  - 1261 ACRES. 

APPELLANT AND THE CITY OF LOS ANGELES PRESENTED TO THE HIGHEST COURT
OF THE STATE THEIR PETITION FOR A PEREMPTORY WRIT OF MANDATE.  IN
SUBSTANCE IT ALLEGES:  PETITIONERS OWN TAXABLE REAL PROPERTY WITHIN THE
FLOOD CONTROL DISTRICT AND OUTSIDE THE DRAINAGE DISTRICTS.  DECEMBER 1,
1937, THE BOARD OF SUPERVISORS OF THE DISTRICT ACCEPTED A TRANSFER TO
THE DISTRICT OF THE IMPROVEMENTS AND SYSTEMS OF THE ELEVEN DRAINAGE
DISTRICTS.  THE BOARD INTENDS TO LEVY ANNUAL SPECIAL ASSESSMENTS
AGAINST ALL REAL ESTATE IN THAT DISTRICT SUFFICIENT TO MEET THE
OUTSTANDING OBLIGATIONS INCURRED ON ACCOUNT OF THE WORKS SO
TRANSFERRED.  THE LEVY OF THESE ASSESSMENTS WILL BE ILLEGAL IN THAT
THEY WILL BE LEVIED AGAINST PROPERTY SITUATED IN THE FLOOD CONTROL
DISTRICT TO PAY THE DEBTS AND OBLIGATIONS OF OTHER SPECIAL ASSESSMENT
DISTRICTS WITHOUT REGARD TO THE ACCRUAL OF BENEFITS TO THE LANDS
ASSESSED AND WILL DEPRIVE PETITIONERS OF THEIR PROPERTY WITHOUT DUE
PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.  THE PETITION
PRAYS A PEREMPTORY WRIT OF MANDATE TO REQUIRE APPELLEES TO LEVY
ASSESSMENTS IN ACCORDANCE WITH CHAPTER 755, STATUTES 1915, AS IT WAS
PRIOR TO THE ADDITION OF SEC. 13 1/2 AND TO COMMAND THEM TO REFRAIN
FROM LEVYING ANY ASSESSMENT UNDER THAT SECTION. 

APPELLEES DEMURRED ON THE GROUND THAT THE PETITION FAILED TO STATE
FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION.  THE STATE COURT
SUSTAINED THAT CONTENTION AND DENIED THE WRIT.  IT RULED:  A FINDING BY
THE LEGISLATURE THAT LANDS WITHIN THE FLOOD CONTROL DISTRICT WOULD BE
BENEFITED BY THAT DISTRICT'S ACQUISITION OF THE WORKS OF THE DRAINAGE
DISTRICTS IS CONCLUSIVE UNLESS SHOWN TO BE WITHOUT REASONABLE
FOUNDATION.  IT MUST BE PRESUMED THAT, BY DESIGNATING IN SEC. 13 1/2
THE IMPROVEMENTS AUTHORIZED TO BE TRANSTERRED, THE LEGISLATURE FOUND
THAT THE ENTIRE FLOOD CONTROL DISTRICT WOULD BE SPECIALLY BENEFITED BY
THE ACQUISITION.  THE PARTICULARITY OF THE DESCRIPTION IMPLIES SUCH A
FINDING.  THE FINDING THUS IMPLIED IS AS FULLY EFFECTIVE AS IF DECLARED
IN EXPRESS TERMS IN THE ACT ITSELF. 

PETITIONERS APPEALED TO THIS COURT; APPELLEES MOVED, AS TO THE CITY,
TO DISMISS OR AFFIRM ON THE GROUND THAT NO FEDERAL QUESTION WAS
INVOLVED; AND, AS TO BOTH APPELLANTS, ON THE GROUNDS THAT NO
SUBSTANTIAL FEDERAL QUESTION WAS PRESENTED, AND THAT THE DECISION BELOW
RESTS UPON ADEQUATE NON-FEDERAL GROUNDS.  WE DISMISSED THE CITY'S
APPEAL FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION AND POSTPONED TO THE
HEARING ON THE MERITS FURTHER CONSIDERATION OF THE QUESTION OF
JURISDICTION AND OF THE MOTION TO DISMISS OR AFFIRM.  305 U.S. 564. 

THAT MOTION IS DENIED.  THE VALIDITY OF THE STATUTE UNDER THE FEDERAL
CONSTITUTION WAS BY THE PETITION APPROPRIATELY DRAWN IN QUESTION AND IN
SUBSTANCE THE DECISION OF THE STATE SUPREME COURT IS IN FAVOR OF ITS
VALIDITY.  SEE BRYANT V. ZIMMERMAN, 278 U.S. 63, 67-69.  ITS JUDGMENT
DOES NOT DEPEND UPON CHARACTERIZATION OF THE STATUTE OR MERE
INTERPRETATION OF THE LANGUAGE EMPLOYED.  ITS DECISION IS TO THE EFFECT
THAT THE LEGISLATURE FOUND THAT THE REAL PROPERTY WITHIN THE FLOOD
CONTROL DISTRICT WOULD BE SPECIALLY BENEFITED BY THE ACQUISITION OF THE
DISTRICT DRAINAGE WORKS AND THAT THEREFORE THE APPELLANT AND OTHER
OWNERS ARE NOT ENTITLED TO BE HEARD ON THE QUESTION OF BENEFITS. 
APPELLANT CONTENDS THERE IS NO FOUNDATION FOR THE RULING THAT THE
LEGISLATURE MADE THAT DETERMINATION AND THAT, AS PUT IN OPERATION AND
EFFECT BY THE STATE, SEC. 13 1/2 DEPRIVES HIM OF HIS CONSTITUTIONAL
RIGHT TO BE HEARD.  SEE ST. LOUIS S.W. RY. CO. V. ARKANSAS, 235 U.S.
350, 362.  MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S. 219, 237. 
RAILROAD COMMISSION V. EASTERN TEXAS R. CO., 264 U.S. 79, 86.  MASON
CO. V. TAX COMM'N, 302 U.S. 186, 206-207.  WE ARE UNABLE TO SAY THAT
THE QUESTION IS FORECLOSED BY OUR DECISIONS OR THAT IT IS SO CLEARLY
NOT DEBATABLE AS TO REQUIRE DISMISSAL FOR LACK OF SUBSTANCE.  HAMILTON
V. REGENTS, 293 U.S. 245, 258.  ALTON RAILROAD CO. V. ILLINOIS COMMERCE
COMM'N, 305 U.S. 548.  NOR DO WE FIND ANY MERIT IN THE CONTENTION THAT
THE JUDGMENT RESTS UPON AN INDEPENDENT NON-FEDERAL GROUND. 

BUT WE ARE OF OPINION THAT THE JUDGMENT IS RIGHT AND MUST BE
AFFIRMED. 

IN THE ABSENCE OF FLAGRANT ABUSE OR PURELY ARBITRARY ACTION, THE
STATE, CONSISTENTLY WITH THE FEDERAL CONSTITUTION, MAY ESTABLISH LOCAL
DISTRICTS TO INCLUDE REAL PROPERTY THAT IT FINDS WILL BE SPECIALLY
BENEFITED BY DRAINAGE, FLOOD CONTROL, OR OTHER IMPROVEMENTS THEREIN,
AND, TO ACQUIRE, CONSTRUCT, MAINTAIN AND OPERATE THE SAME, MAY IMPOSE
SPECIAL TAX BURDENS UPON THE LANDS BENEFITED.  HAGAR V. RECLAMATION
DIST., 111 U.S. 701, 704-705.  SPENCER V. MERCHANT, 125 U.S. 345, 355. 
FRENCH V. BARBER ASPHALT PAVING CO., 181 U.S. 324, 342.  AND SEE HOUCK
V. LITTLE RIVER DRAINAGE DIST., 239 U.S. 254, 262.  AND WHERE, WITHIN
THE SCOPE OF ITS POWER, THE LEGISLATURE ITSELF HAS FOUND THAT THE LANDS
INCLUDED IN THE DISTRICT WILL BE SPECIALLY BENEFITED BY THE
IMPROVEMENTS, PRIOR APPROPRIATE AND ADEQUATE INQUIRY IS PRESUMED, AND
THE FINDING IS CONCLUSIVE.  PARSONS V. DISTRICT OF COLUMBIA, 170 U.S.
45, 52.  WAGNER, INC. V. LESER, 239 U.S. 207, 218.  WITHNELL V.
RUECKING CONST. CO., 249 U.S. 63, 69.  HANCOCK V. MUSKOGEE, 250 U.S.
454, 458.  BRANSON V. BUSH, 251 U.S. 182, 189-190.  VALLEY FARMS CO. V.
WESTCHESTER, 261 U.S. 155, 162 ET SEQ.  MILHEIM V. MOFFAT TUNNEL DIST.,
262 U.S. 710, 721.  BUT WHERE THE DISTRICT WAS NOT DIRECTLY CREATED BY
THE LEGISLATURE AND THERE HAS BEEN NO DETERMINATION BY IT THAT THEIR
PROPERTY WILL BE BENEFITED BY THE LOCAL IMPROVEMENTS THE OWNERS ARE
ENTITLED, UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, TO
BE HEARD BY SOME OFFICER OR TRIBUNAL EMPOWERED BY THE STATE TO HEAR
THEM AND TO CONSIDER AND DECIDE WHETHER THEIR LANDS WILL BE SPECIALLY
BENEFITED.  FALLBROOK IRRIGATION DIST. V. BRADLEY, 164 U.S. 112, 167. 
EMBREE V. KANSAS CITY ROAD DIST., 240 U.S. 242, 247.  BROWNING V.
HOOPER, 269 U.S. 396, 405, 406. 

THE LEGISLATURE NEED NOT ADOPT ANY FORM OF STATEMENT OR FINDING FOR,
IN THE ENFORCEMENT OF RESTRAINTS IMPOSED BY THE FEDERAL CONSTITUTION
UPON THE POWER OF STATES TO ASSESS AND COLLECT TAXES, THIS COURT
REGARDS THE SUBSTANCE OF THEIR ENACTMENTS AS CONTROLLING RATHER THAN
MERE FORMS OF EXPRESSION EMPLOYED.  LONDONER V. DENVER, 210 U.S. 373,
385.  APPELLANT DOES NOT SUGGEST THAT AS A MATTER OF FACT HIS LAND IS
NOT BY THE DRAINAGE WORKS SPECIALLY BENEFITED OR THAT A FINDING THAT IT
IS SO BENEFITED WOULD BE WITHOUT FOUNDATION OR ARBITRARY.  INDEED, HE
CONCEDES THAT, IF THE LEGISLATURE EITHER BY DESIGNATING THE TERRITORY
TO COMPRISE THE DISTRICT OR BY EXPRESSLY SO DECLARING HAS MADE THE
FINDING, HE IS BOUND BY IT. 

AS SHOWN BY THE OPINION BELOW, THE STATE COURT LONG BEFORE THE
ADDITION OF SEC. 13 1/2, HELD THAT THE MERE PASSAGE OF THE FLOOD
CONTROL ACT, WHICH DID NOT CONTAIN A DIRECT STATEMENT TO THAT EFFECT,
"MUST BE TAKEN TO IMPORT A FINDING BY THE LEGISLATURE THAT THE PROPOSED
WORK WILL ANSWER A PUBLIC PURPOSE AND THAT ITS EXECUTION WILL BENEFIT
THE LAND WITHIN THE DISTRICT TO SUCH AN EXTENT AS TO WARRANT THE
IMPOSITION UPON SUCH LAND OF THE COST IN THE MANNER PROVIDED.  THE
FINDINGS THUS IMPLIED ARE AS FULLY EFFECTIVE AS IF DECLARED IN EXPRESS
TERMS IN THE ACT ITSELF."  LOS ANGELES FLOOD CONTROL DIST. V. HAMILTON,
177 CAL. 119, 124-125; 169 P. 1028, 1030.  THE COURT DEEMED THAT
LANGUAGE APPLICABLE IN DISPOSING OF APPELLANT'S CONTENTIONS IN THIS
CASE.  AND WE THINK THAT AS THE LEGISLATURE HAD KNOWLEDGE OF THAT
DECISION WHEN ENACTING THE CHALLENGED PROVISION, IT MUST BE GIVEN GREAT
WEIGHT IN DETERMINING THE VALIDITY OF SEC. 13 1/2. 

THE FLOOD CONTROL DISTRICT HAD LONG BEEN IN EXISTENCE AND EMPOWERED
TO ACQUIRE PROPERTY NECESSARY FOR ITS PURPOSES.  SECTION 13 1/2 LIMITED
THE BOARD'S AUTHORITY TO ACCEPTANCE OF "ALL, BUT NOT LESS THAN ALL" THE
DRAINAGE WORKS AND DEFINED THE TAX BURDEN TO BE IMPOSED.  THE
LEGISLATION IS NOT TO BE DISTINGUISHED FROM A MEASURE TO TAKE EFFECT
UPON AN EVENT UNRELATED TO THE CREATION OF THE DISTRICT OR THE
IMPOSITION OF SPECIAL ASSESSMENTS. 

NO QUESTION IS RAISED AS TO THE VALIDITY OF THE FLOOD CONTROL
DISTRICT OR ITS AUTHORITY TO LEVY SPECIAL ASSESSMENTS ON LANDS WITHIN
IT.  BY THE ENACTMENT OF THE CHALLENGED SECTION, THE LEGISLATURE
UNQUESTIONABLY INTENDED THAT THE USE OF THE DRAINAGE WORKS SHOULD NOT
BE LIMITED TO THE PURPOSES FOR WHICH ORIGINALLY THEY WERE INTENDED BUT
THAT THEY SHOULD ALSO BE USED IN CONNECTION WITH OTHER FACILITIES FOR
THE PURPOSES OF THE FLOOD CONTROL DISTRICT.  THE CHALLENGED SECTION WAS
NOT ENACTED TO CREATE A NEW ASSESSMENT DISTRICT BUT SPECIALLY TO
AUTHORIZE THE ONE ALREADY ESTABLISHED TO ACCEPT, MAINTAIN, AND USE THE
DESIGNATED IMPROVEMENTS FOR SOME OF THE PURPOSES ENUMERATED IN THE
FLOOD CONTROL ACT.  THE ESSENTIAL FEATURES OF THE CHALLENGED STATUTE
NECESSARILY IMPLY SPECIAL BENEFITS TO THE LANDS IN QUESTION.  WE THINK
THE STATE COURT'S RULING THAT IMPLIEDLY THE LEGISLATURE MADE THE
REQUISITE FINDINGS IS NOT WITHOUT ADEQUATE FOUNDATION.  MERE LACK OF
FORMAL OR EXPRESS STATEMENT OF THEM IS NOT SUFFICIENT TO REQUIRE
REVERSAL.  JUDGMENT AFFIRMED. 
..END :



GRAVES V. N.Y. EX REL. O'KEEFE, 306 U.S. 466 


NO. 478.  ARGUED MARCH 6, 1939.  - DECIDED MARCH 27, 1939.  - 278 N.Y.
691 - 16 N.E.2D 404, REVERSED. 


1.  THE RECEIPT OF SALARY BY A RESIDENT OF NEW YORK AS AN EXAMINING
ATTORNEY FOR THE FEDERAL HOME OWNERS' LOAN CORPORATION, IS
CONSTITUTIONALLY SUBJECT TO NON-DISCRIMINATORY TAXATION BY A STATE.  P.
475. 

2.  FOR THE PURPOSES OF THIS CASE IT IS ASSUMED THAT THE CREATION OF
THE HOME OWNERS' LOAN CORPORATION WAS A CONSTITUTIONAL EXERCISE OF THE
POWERS OF THE FEDERAL GOVERNMENT, AND THAT ALL ACTIVITIES OF THE
GOVERNMENT CONSTITUTIONALLY AUTHORIZED BY CONGRESS ARE GOVERNMENTAL AND
STAND ON A PARITY WITH RESPECT TO IMMUNITY FROM STATE TAXATION.  P.
477. 

3.  WHETHER CONGRESS, AS AN INCIDENT TO THE EXERCISE OF SPECIFICALLY
GRANTED POWERS, HAS POWER TO GRANT TAX EXEMPTIONS EXTENDING BEYOND THE
CONSTITUTIONAL IMMUNITY OF FEDERAL AGENCIES WHICH COURTS MAY IMPLY, IS
A QUESTION NOT DETERMINED IN THIS CASE.  P. 478. 

4.  NO PURPOSE OF CONGRESS EITHER TO GRANT OR TO WITHHOLD IMMUNITY
FROM STATE TAXATION OF SALARIES OF EMPLOYEES OF THE HOME OWNERS' LOAN
CORPORATION IS EXPRESSED OR IMPLIED IN THE HOME OWNERS' LOAN ACT OF
1933, 48 STAT. 128, OR IS TO BE INFERRED FROM THE SILENCE OF CONGRESS. 
P. 479. 

5.  A TAX ON INCOME IS NOT LEGALLY OR ECONOMICALLY A TAX ON ITS
SOURCE, AND THERE IS NO BASIS FOR THE ASSUMPTION THAT THE ECONOMIC
BURDEN OF A NON-DISCRIMINATORY STATE INCOME TAX ON THE SALARY OF AN
EMPLOYEE OF THE NATIONAL GOVERNMENT OR OF A GOVERNMENTAL AGENCY IS
PASSED ON SO AS TO IMPOSE A BURDEN ON THE NATIONAL GOVERNMENT
TANTAMOUNT TO AN UNCONSTITUTIONAL INTERFERENCE BY THE ONE GOVERNMENT
WITH THE OTHER IN THE PERFORMANCE OF ITS FUNCTIONS.  P. 480. 

6.  ASSUMING THAT THE HOME OWNERS' LOAN CORPORATION IS CLOTHED WITH
THE SAME CONSTITUTIONAL IMMUNITY FROM STATE TAXATION AS THE GOVERNMENT
ITSELF, IT CAN NOT BE SAID THAT THE PRESENT TAX ON THE INCOME OF ITS
EMPLOYEES LAYS ANY UNCONSTITUTIONAL BURDEN UPON IT.  P. 486. 

7.  COLLECTOR V. DAY, 11 WALL.  113, AND NEW YORK EX REL. ROGERS V.
GRAVES, 299 U.S. 401, ARE OVERRULED IN SO FAR AS THEY RECOGNIZE AN
IMPLIED CONSTITUTIONAL IMMUNITY FROM NON-DISCRIMINATING INCOME TAXATION
OF THE SALARIES OF OFFICERS OR EMPLOYEES OF THE NATIONAL OR STATE
GOVERNMENTS OR THEIR INSTRUMENTALITIES.  ID. 

GRAVES ET AL., COMMISSIONERS CONSTITUTING THE STATE TAX COMMISSION OF
NEW YORK, V. NEW YORK EX REL. O'KEEFE. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 305 U.S. 592, TO REVIEW THE AFFIRMANCE OF AN ORDER, 253
APP. DIV. 91; 1 N.Y.S.2D 195, SETTING ASIDE A DECISION OF THE TAX
COMMISSION OF THE STATE OF NEW YORK REJECTING A CLAIM FOR REFUND OF A
TAX. 

EMPLOYEES AND OFFICERS OF THE HOME OWNERS' LOAN CORPORATION ENJOY NO
CONSTITUTIONAL OR STATUTORY IMMUNITY FROM NON-DISCRIMINATORY STATE
TAXATION OF THEIR SALARIES. 

INTERFERENCE WITH THE OPERATION OF GOVERNMENT FURNISHES AN
APPROPRIATE TEST FOR IMMUNITY FROM TAXATION.  BY SUCH TEST NO IMMUNITY
SHOULD BE ACCORDED THE TAXPAYER HERE. 

THE TAXPAYER IS NOT AN EMPLOYEE OF THE UNITED STATES. 

THE SALARY IS PAID BY THE CORPORATION PURSUANT TO SEC. 4(J) OF THE
HOME OWNERS' LOAN ACT OF 1933, WHICH CLEARLY DELINEATES THE DISTINCTION
BETWEEN OFFICERS OR EMPLOYEES LIKE RESPONDENT AND OFFICERS OR EMPLOYEES
OF THE UNITED STATES. 

THE HOME OWNERS' LOAN CORPORATION HAS ALL THE EARMARKS OF A REGULAR
PRIVATE BUSINESS CORPORATION. 

WE NOTE THE EXTENDED AND WHOLLY IMPERTINENT ARGUMENT OF THE
DEPARTMENT OF JUSTICE ADDRESSED TO THE PROPOSITION THAT THIS COURT
SHOULD NOW, IN THIS CASE, RECONSIDER AND OVERRULE COLLECTOR V. DAY, 11
WALL.  113, AND SUBSEQUENT CASES IN LINE THEREWITH.  SINCE THE INSTANT
CASE INVOLVES NO SUCH ISSUE OR QUESTION; SINCE WE RESPECT THE REPEATED
ADMONITION OF THIS COURT TO CONFINE DISCUSSION TO THE FACTS AND ISSUES
OF LAW CONCERNED IN THE CASE AT BAR, AND NONE OTHER; SINCE THE ISSUE
THUS EXTRANEOUSLY RAISED BY THE GOVERNMENT'S BRIEF WILL INEVITABLY COME
BEFORE THE COURT IN A CASE WHERE THE ISSUE MAY BE SQUARELY PRESENTED
AND THE VITAL CONSTITUTIONAL QUESTIONS THEREIN INVOLVED FULLY ARGUED
AND CONSIDERED - FOR THESE REASONS THE PETITIONERS MUST DECLINE TO BE
DRAWN INTO A DISCUSSION OF THE PROPOSITION THUS IRRELEVANTLY SOUGHT TO
BE INJECTED INTO THE INSTANT APPEAL.  FOR THE SAME REASONS WE MOST
EARNESTLY TRUST AND PRAY THAT THIS COURT WILL ADHERE TO ITS TRADITIONAL
PHILOSOPHY OF THE JUDICIAL PROCESS AND DECLINE THE GOVERNMENT'S
INVITATION TO MAKE THE "DIGRESSION FROM THE PARTICULAR CASE BEFORE THE
COURT." 

THE FUNCTIONS OF THE HOME OWNERS' LOAN CORPORATION ARE ESSENTIAL TO
THE PRESERVATION OF THE GENERAL WELFARE AND THE PROMOTION OF ECONOMIC
SECURITY. 

A WHOLLY-OWNED INSTRUMENTALITY OF THE UNITED STATES, LAWFULLY CREATED
AND USED TO CARRY INTO EFFECT CONSTITUTIONAL POWERS, THE HOME OWNERS'
LOAN CORPORATION IS IMMUNE FROM STATE TAXATION.  MCCULLOCH V. MARYLAND,
4 WHEAT.  316; DOBBINS V. COMMISSIONERS, 16 PET. 435; VAN BROCKLIN V.
TENNESSEE, 117 U.S. 151; CLALLAM COUNTY V. UNITED STATES, 263 U.S. 341;
NEW BRUNSWICK V. UNITED STATES, 276 U.S. 547. 

THE IMMUNITY RESTS UPON AN ENTIRE ABSENCE OF THE POWER TO TAX. 
JOHNSON V. MARYLAND, 254 U.S. 151; ROGERS V. GRAVES, 299 U.S. 401. 

THE STATE CAN NOT BY ANY FORM OF TAXATION IMPOSE ANY BURDEN UPON A
NATIONAL POWER OR FUNCTION.  WESTON V. CHARLESTON, 2 PET. 449; HOME
SAVINGS BANK V. DES MOINES, 205 U.S. 503, 513. 

CONGRESS MAY ENLARGE THE FEDERAL IMMUNITY IF NECESSARY TO PROTECT THE
PERFORMANCE OF THE FUNCTIONS OF THE NATIONAL GOVERNMENT.  JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 134, 160-161. 

ALTHOUGH THE COURT IN VAN ALLEN V. THE ASSESSORS, 3 WALL.  573,
SUGGESTED THAT CONGRESS MIGHT CURTAIL A FEDERAL IMMUNITY THAT MIGHT
OTHERWISE BE IMPLIED, THE COURT, UPON FULL CONSIDERATION, IN THE CASE
OF HOME SAVINGS BANK V. DES MOINES, 205 U.S. 503, SAID:  "IT MAY BE
DOUBTED WHETHER CONGRESS HAS THE POWER TO CONFER UPON THE STATE THE
RIGHT TO TAX OBLIGATIONS OF THE UNITED STATES."  SEE FARMERS BANK V.
MINNESOTA, 232 U.S. 516. 

THE IMMUNITY IS NOT A PRIVATE BOON BUT A LIMITATION IMPOSED IN THE
PUBLIC INTEREST.  EVANS V. GORE, 253 U.S. 245. 

HELVERING V. GERHARDT, 304 U.S. 405, RECOGNIZES THAT THERE ARE MANY
STATE EMPLOYEES REMAINING IMMUNE DESPITE THE FACT THAT THE TAX AFFECTS
THE STATE ONLY AS THE BURDEN IS PASSED ON TO IT.  THE EFFECT OF THIS
DECISION IS TO DENY IMMUNITY WHEN THE BURDEN OF SUCH TAXATION ON THE
STATE IS SPECULATIVE AND UNCERTAIN TO THE DEGREE MENTIONED IN THAT
OPINION. 

IF IT WERE NECESSARY TO SHOW THE BURDEN OF STATE INCOME TAX ON THE
HOME OWNERS' LOAN CORPORATION, THAT CAN READILY BE DEMONSTRATED. 

THE DIVERSE PROVISIONS IN THE SEVERAL STATES REQUIRING INFORMATION
REPORTS TO BE FILED BY THE EMPLOYER, AND PROVISIONS FOR WITHHOLDING
TAX, CONSTITUTE A REAL BURDEN AND EXPENSE IF THE CORPORATION BE
REQUIRED TO CONFORM THERETO, AND THE PHYSICAL LABOR INVOLVED IN
PREPARATION OF INFORMATION RETURNS WILL IMPAIR, IMPEDE AND PREJUDICE
THIS GOVERNMENTAL FUNCTION.  NATIONAL BANK V. KENTUCKY, 9 WALL.  353,
362. 

THE STATE INCOME TAX COMPELS CONSIDERATION IN DETERMINING SALARIES
AND WOULD INCREASE THE OPERATING EXPENSE OF THE CORPORATION. 

IN ATTEMPTING TO REFLECT THE DIVERS INCOME TAXES, AN ADMINISTRATIVE
AGENCY IS CONFRONTED WITH AN IMPOSSIBLE TASK IN THE MATTER OF
CLASSIFICATION AND EQUALIZATION OF SALARIES THROUGHOUT AN ORGANIZATION
FUNCTIONING IN ALL THE STATES OF THE UNION, AND THIS WOULD CONSTITUTE
SUCH A HANDICAP AS TO COMPEL THE FEDERAL GOVERNMENT TO ABANDON THE
CORPORATE FORM OF AGENCY OR INSTRUMENTALITY AND FUNCTION DIRECTLY IN
ALL FIELDS. 

TO TAX THE SALARY IS TO TAX THE RIGHT OF THE HOME OWNERS' LOAN
CORPORATION TO EMPLOY THE PERSON, AND IS TO LEVY UPON THE RIGHT OF THE
PERSON TO WORK FOR THE CORPORATION AND RECEIVE THE SALARY. 

INCOME IS TO BE DISTINGUISHED FROM PROPERTY.  THE INCOME TAX IS NOT A
TAX OF MONEY IN HAND BUT IS A TAX ON THE RIGHT TO RECEIVE THE MONEY. 

THE QUESTION HERE IS ONE OF POWER - NOT ECONOMICS. 

CONGRESS HAS NOT CONSENTED TO A STATE INCOME TAX, AND SUCH CONSENT
WILL NOT BE IMPLIED. 

THE IMMUNITY EXISTS UNLESS CONGRESS EXPRESSLY CONSENTS TO A TAX. 

THE IMMUNITY NEED NEVER BE CARRIED INTO EXPRESS STIPULATION FOR THIS
COULD ADD NOTHING TO ITS FORCE.  EVANS V. GORE, SUPRA. 

THE IMMUNITY FROM TAXATION RESTS UPON AN ENTIRE ABSENCE OF THE POWER
TO TAX.  IT IS ANALOGOUS TO IMMUNITY FROM SUIT, HELVERING V. GERHARDT,
SUPRA, FOOTNOTE 1; FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229, 234,
235. 

A STATUTE UNDER WHICH WAIVER OF SOVEREIGN IMMUNITY IS CLAIMED MUST BE
STRICTLY CONSTRUED.  SUIT MAY NOT BE MAINTAINED AGAINST THE UNITED
STATES IN ANY CASE NOT CLEARLY WITHIN THE TERMS OF THE STATUTE BY WHICH
IT CONSENTS TO BE SUED. 

THE IMMUNITY OF FEDERAL INSTRUMENTALITIES FROM SUIT IS LESS READILY
IMPLIED THAN IMMUNITY FROM TAXATION. 

THE RULE AS TO TAXATION IS ABSOLUTE IN FORM AND STRICTER IN
SUBSTANCE. 

ALTHOUGH IT BECAME THE PRACTICE AFTER THE CIVIL WAR FOR CONGRESS TO
INSERT IN APPROPRIATE ACTS THE EXPRESS EXEMPTION, THE IMMUNITY, WITHOUT
THAT, IS CLEAR. 

THE IMMUNITY OF FEDERAL INSTRUMENTALITIES RESTS ON A DIFFERENT BASIS
FROM THAT OF STATE INSTRUMENTALITIES.  IT IS MORE EXTENSIVE.  HELVERING
V. GERHARDT, SUPRA. 

IN JAMES V. DRAVO CONTRACTING CO., SUPRA, THE COURT POINTED OUT THAT
CONGRESS MIGHT ENLARGE THE IMMUNITY TO INCLUDE INDEPENDENT CONTRACTORS
IF DEEMED NECESSARY IN ORDER TO PROTECT THE PERFORMANCE OF THE
FUNCTIONS OF THE NATIONAL GOVERNMENT. 

A STATE IS WITHOUT POWER TO TAX PERSONS, INSTRUMENTALITIES, OR
AGENCIES ENGAGED IN EXERCISING A POWER GRANTED BY THE CONSTITUTION TO
THE FEDERAL GOVERNMENT, BUT THE FEDERAL GOVERNMENT CAN EXERCISE ITS
DELEGATED POWERS OF TAXATION EQUALLY AGAINST ALL MEN SO LONG AS IT DOES
NOT ACTUALLY INTERFERE WITH TRADITIONAL GOVERNMENTAL FUNCTIONS OF THE
STATE.  CF. MCCULLOCH V. MARYLAND, SUPRA; HELVERING V. THERRELL, 303
U.S. 218; UNITED STATES V. CALIFORNIA, 297 U.S. 180. 

THE CLAIM TO IMMUNITY OF THE EMPLOYEES OF A FEDERAL INSTRUMENTALITY
RESTS ON A DIFFERENT BASIS FROM THAT OF AN INDEPENDENT CONTRACTOR
ENGAGED ON THE WORK OF SUCH AN INSTRUMENTALITY.  JAMES V. DRAVO
CONTRACTING CO., SUPRA; ROGERS V. GRAVES, SUPRA; METCALF & EDDY V.
MITCHELL, 269 U.S. 514. 

THE STATE OF NEW YORK HAS EXEMPTED RESPONDENT'S SALARY FROM TAXATION
BY THE STATE TAX LAW. 

THE NEW YORK STATUTE EXEMPTS "COMPENSATION RECEIVED FROM THE UNITED
STATES OF OFFICIALS OR EMPLOYEES THEREOF."  THE RELATOR IS EXEMPTED
UNDER THIS PROVISION; THE QUESTION IS ONE OF STATE LAW. 

THE FEDERAL GOVERNMENT CAN EXERCISE ONLY ITS DELEGATED POWERS, AND IF
THE ACTIVITY IS CONSTITUTIONAL IT MUST BY DEFINITION BE GOVERNMENTAL. 
MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 432, 435-436; VAN BROCKLIN V.
TENNESSEE, 117 U.S. 151, 158-159; SOUTH CAROLINA V. UNITED STATES, 199
U.S. 437, 451-452; HELVERING V. THERRELL, 303 U.S. 218, 223; HELVERING
V. GERHARDT, 304 U.S. 405, 412-413, 416. 

STOCK OF THE HOME OWNERS' LOAN CORPORATION IS WHOLLY OWNED BY THE
UNITED STATES AND ITS FUNCTIONS ARE THOSE OF THE GOVERNMENT ALONE. 
SINCE THERE IS AND CAN BE NO CHALLENGE TO ITS CONSTITUTIONALITY IN
THESE PROCEEDINGS, ITS ACTIVITIES MUST BE TAKEN TO BE PURELY
GOVERNMENTAL AND IN ALL RESPECTS THOSE OF THE UNITED STATES. 

THERE IS NO CONSTITUTIONAL IMMUNITY FROM A TAX SUCH AS THIS. 

THE COURT HAS FOUR TIMES HELD AN OFFICER OF A STATE OR THE FEDERAL
GOVERNMENT EXEMPT FROM TAXATION BY THE OTHER; IT HAS NEVER HELD AN
EMPLOYEE TO BE EXEMPT.  COLLECTOR V. DAY, 11 WALL.  113, WAS ERRONEOUS
AT THE TIME IT WAS DECIDED.  IT IGNORED THAT, WITH KNOWLEDGE OF TAX
IMMUNITY PROBLEMS, THE CONSTITUTION PROVIDED NO RELEVANT LIMITATION
UPON THE FEDERAL TAXING POWERS.  IT REVERSED THE REASONING OF THE PRIOR
DECISION OF THIS COURT HOLDING STATE TAXES INVALID SOLELY BECAUSE OF
THE SUPREMACY CLAUSE.  IT IGNORED CHIEF JUSTICE MARSHALL'S INSISTENCE
THAT THE REPRESENTATION OF THE STATES IN CONGRESS MADE UNNECESSARY A
CONSTITUTIONAL PROTECTION.  AND IT OPENED WIDE FIELDS FOR UNNECESSARY
AND UNFAIR TAX EXEMPTIONS, WHICH THE COURT HAS SINCE BEEN REQUIRED
STEADILY TO NARROW. 

COLLECTOR V. DAY CAN NOT BE RECONCILED WITH THE SUBSEQUENT DECISIONS
OF THE COURT.  HELVERING V. GERHARDT, 304 U.S. 405; METCALF & EDDY V.
MITCHELL, 269 U.S. 514; JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134;
UNITED STATES GLUE CO. V. OAK CREEK, 247 U.S. 321; PECK & CO. V. LOWE,
247 U.S. 165. 

THERE IS NO PRACTICAL JUSTIFICATION FOR THE IMMUNITY.  THE GOVERNMENT
OFFICER OR EMPLOYEE RECEIVES ALL THE BENEFITS OF ORGANIZED GOVERNMENT
AND SHOULD PAY HIS SHARE OF ITS COSTS.  THE TAX CONTAINS NO THREAT TO
THE OPERATIONS OF GOVERNMENT.  IT IS NOT CERTAIN THAT THE GOVERNMENT
SALARY WILL BE TAXED AT ALL IF INCLUDED IN GROSS INCOME.  THE EXEMPTION
PRIVILEGE OPERATES IN A VARIABLE AND DISCRIMINATORY MANNER.  FEW, IF
ANY, PERSONS CONSIDERING GOVERNMENT WORK WOULD HAVE THEIR DECISIONS
SHAPED BY IMMUNITY OR LIABILITY TO INCOME TAX.  EVEN IF THE EXEMPTION
WERE TO BE REFLECTED IN THE PUBLIC TREASURY, THERE IS DOUBT THAT SUCH A
BOUNTY SHOULD BE OFFERED BY ONE GOVERNMENT TO ANOTHER.  THE REQUIREMENT
THAT THE TAX BE NON-DISCRIMINATORY ELIMINATES ANY DANGER OF
INTERFERENCE WITH GOVERNMENT OPERATIONS. 

EACH OF THE THREE REASONS ADVANCED OR SUGGESTED BY THE COURT FOR THE
DECISION IN COLLECTOR V. DAY HAS SUBSEQUENTLY BEEN REJECTED:  (1)  THE
POWER TO TAX CAN NO LONGER BE THOUGHT TO INVOLVE THE POWER TO DESTROY. 
IN HALF A HUNDRED CASES THE COURT HAS SUSTAINED TAXES WHICH WOULD BE
CAPABLE OF DESTRUCTION IF PRESSED TO DISCRIMINATORY OR OPPRESSIVE
LIMITS, AND THE COURT HAS EXPRESSLY DECIDED THAT THE STATES COULD TAX
FEDERAL ACTIVITIES WHICH THEY COULD NOT REGULATE OR FORBID.  WESTERN
UNION TEL. CO. V. MASSACHUSETTS, 125 U.S. 530; NEW BRUNSWICK V. UNITED
STATES, 276 U.S. 547.  (2)  A NON-DISCRIMINATORY NET INCOME TAX CAN NO
LONGER BE CONSIDERED TO BE AN INTERFERENCE WITH THE GOVERNMENTAL
FUNCTIONS IN WHICH THE OFFICER OR EMPLOYEE IS ENGAGED.  (3) FINALLY,
AFTER THE DECISION IN NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308 AND
HALE V. STATE BOARD, 302 U.S. 95, THE TAX UPON NET INCOME CAN NO LONGER
BE THOUGHT TO BE A TAX ON THE SOURCE OF THE INCOME. 

THE FEAR THAT THE ECONOMIC BURDEN OF THE TAX MIGHT BE PASSED ON TO
THE GOVERNMENT NO LONGER CAN BE ACCEPTED AS A GROUND FOR EXTENDING
IMMUNITY FROM SUCH A TAX.  JAMES V. DRAVO CONTRACTING CO., 302 U.S.
134, 160; HELVERING V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376;
HELVERING V. GERHARDT, 304 U.S. 405, 418-419, 420-421. 

THE REASONS ANNOUNCED BY THE COURT FOR DENYING A CLAIM OF IMMUNITY IN
THE CASES JUST CITED ARE FULLY APPLICABLE TO THE CASE OF A GOVERNMENT
OFFICER. 

FOREIGN FEDERATIONS WITH SIMILAR PROBLEMS HAVE FIRST ADOPTED AND THEN
HAVE REJECTED THE RULE OF COLLECTOR V. DAY. 

AN INTENTION ON THE PART OF CONGRESS TO EXEMPT THE SALARY FROM SUCH
TAXATION IS NOT TO BE IMPLIED FROM ITS SILENCE. 

IN FORTY-ODD CASES THE STATES HAVE BEEN PERMITTED TO TAX PRIVATE
PERSONS WHO DEALT WITH THE GOVERNMENT.  IN NO CASE HAS THE SILENCE OF
CONGRESS BEEN THOUGHT TO IMPLY A DESIRE THAT THERE BE EXEMPTION; THE
DECISIONS OF IMMUNITY HAVE BEEN PITCHED ON THE CONSTITUTION ALONE.  IN
MANY OPINIONS THE COURT HAS EXPRESSLY RELIED UPON THE FAILURE OF
CONGRESS TO PROVIDE EXEMPTION AS A REASON WHY THE TAX SHOULD BE
SUSTAINED.  AND CERTAINLY IF THE GROSS RECEIPTS TAX ON THE GOVERNMENT
CONTRACTOR, SUSTAINED IN JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134,
WAS NOT TO BE THOUGHT CONDEMNED BY THE SILENCE OF CONGRESS, A TAX SO
REMOTE FROM THE OPERATIONS OF GOVERNMENT AS AN INCOME TAX UPON THE
SALARIES PAID OFFICERS AND EMPLOYEES IS NOT TO BE THOUGHT FORBIDDEN BY
AN IMPLICATION DERIVED FROM THE SILENCE OF CONGRESS.    THE POSSIBLE
ARGUMENT THAT CONGRESS BY ITS SILENCE HAS ACCEPTED THE RULE OF IMMUNITY
ANNOUNCED IN COLLECTOR V. DAY, 11 WALL.  113, AS APPLIED TO FEDERAL
OFFICERS AND EMPLOYEES, CAN NOT BE ALLOWED. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO DECIDE WHETHER THE IMPOSITION BY THE STATE OF NEW
YORK OF AN INCOME TAX ON THE SALARY OF AN EMPLOYEE OF THE HOME OWNERS'
LOAN CORPORATION PLACES AN UNCONSTITUTIONAL BURDEN UPON THE FEDERAL
GOVERNMENT. 

RESPONDENT, A RESIDENT OF NEW YORK, WAS EMPLOYED DURING 1934 AS AN
EXAMINING ATTORNEY FOR THE HOME OWNERS' LOAN CORPORATION AT AN ANNUAL
SALARY OF $2,400.  IN HIS INCOME TAX RETURN FOR THAT YEAR HE INCLUDED
HIS SALARY AS SUBJECT TO THE NEW YORK STATE INCOME TAX IMPOSED BY ART.
16 OF THE TAX LAW OF NEW YORK (CONSOL.  LAWS, C. 60).  SUBDIVISION 2F
OF SEC. 359, SINCE REPEALED, EXEMPTED FROM THE TAX "SALARIES, WAGES AND
OTHER COMPENSATION RECEIVED FROM THE UNITED STATES OF OFFICIALS OR
EMPLOYEES THEREOF, INCLUDING PERSONS IN THE MILITARY OR NAVAL FORCES OF
THE UNITED STATES.  ..."  PETITIONERS, NEW YORK STATE TAX
COMMISSIONERS, REJECTED RESPONDENT'S CLAIM FOR A REFUND OF THE TAX
BASED ON THE GROUND THAT HIS SALARY WAS CONSTITUTIONALLY EXEMPT FROM
STATE TAXATION BECAUSE THE HOME OWNERS' LOAN CORPORATION IS AN
INSTRUMENTALITY OF THE UNITED STATES GOVERNMENT AND THAT HE, DURING THE
TAXABLE YEAR, WAS AN EMPLOYEE OF THE FEDERAL GOVERNMENT ENGAGED IN THE
PERFORMANCE OF A GOVERNMENTAL FUNCTION. 

ON REVIEW BY CERTIORARI THE BOARD'S ACTION WAS SET ASIDE BY THE
APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK, 253 APP. DIV. 91;
1 N.Y.S.2D 195, WHOSE ORDER WAS AFFIRMED BY THE COURT OF APPEALS.  278
N.Y. 691; 16 N.E.2D 404.  BOTH COURTS HELD RESPONDENT'S SALARY WAS FREE
FROM TAX ON THE AUTHORITY OF NEW YORK EX REL. ROGERS V. GRAVES, 299
U.S. 401, WHICH SUSTAINED THE CLAIM THAT NEW YORK COULD NOT
CONSTITUTIONALLY TAX THE SALARY OF AN EMPLOYEE OF THE PANAMA RAIL ROAD
COMPANY, A WHOLLY-OWNED CORPORATE INSTRUMENTALITY OF THE UNITED
STATES.  WE GRANTED CERTIORARI, 305 U.S. 592, THE CONSTITUTIONAL
QUESTION PRESENTED BY THE RECORD BEING OF PUBLIC IMPORTANCE. 

THE HOME OWNERS' LOAN CORPORATION WAS CREATED PURSUANT TO SEC. 4(A)
OF THE HOME OWNERS' LOAN ACT OF 1933, 48 STAT. 128, 12 U.S.C. SEC. 1461
ET SEQ., WHICH WAS ENACTED TO PROVIDE EMERGENCY RELIEF TO HOME OWNERS,
PARTICULARLY TO ASSIST THEM WITH RESPECT TO HOME MORTGAGE
INDEBTEDNESS.  THE CORPORATION, WHICH IS AUTHORIZED TO LEND MONEY TO
HOME OWNERS ON MORTGAGES AND TO REFINANCE HOME MORTGAGE LOANS WITHIN
THE PURVIEW OF THE ACT, IS DECLARED BY SEC. 4(A) TO BE AN
INSTRUMENTALITY OF THE UNITED STATES.  ITS SHARES OF STOCK ARE WHOLLY
GOVERNMENT-OWNED.  SEC. 4(B).  ITS FUNDS ARE DEPOSITED IN THE TREASURY
OF THE UNITED STATES, AND THE COMPENSATION OF ITS EMPLOYEES IS PAID BY
DRAFTS UPON THE TREASURY. 

FOR THE PURPOSES OF THIS CASE WE MAY ASSUME THAT THE CREATION OF THE
HOME OWNERS' LOAN CORPORATION WAS A CONSTITUTIONAL EXERCISE OF THE
POWERS OF THE FEDERAL GOVERNMENT.  CF. KAY V. UNITED STATES, 303 U.S.
1.  AS THAT GOVERNMENT DERIVES ITS AUTHORITY WHOLLY FROM POWERS
DELEGATED TO IT BY THE CONSTITUTION, ITS EVERY ACTION WITHIN ITS
CONSTITUTIONAL POWER IS GOVERNMENTAL ACTION, AND SINCE CONGRESS IS MADE
THE SOLE JUDGE OF WHAT POWERS WITHIN THE CONSTITUTIONAL GRANT ARE TO BE
EXERCISED, ALL ACTIVITIES OF GOVERNMENT CONSTITUTIONALLY AUTHORIZED BY
CONGRESS MUST STAND ON A PARITY WITH RESPECT TO THEIR CONSTITUTIONAL
IMMUNITY FROM TAXATION.  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 432; VAN
BROCKLIN V. TENNESSEE, 117 U.S. 151, 158-159; SOUTH CAROLINA V. UNITED
STATES, 199 U.S. 437, 451-452; HELVERING V. GERHARDT, 304 U.S. 405, 412
415.  AND WHEN THE NATIONAL GOVERNMENT LAWFULLY ACTS THROUGH A
CORPORATION WHICH IT OWNS AND CONTROLS, THOSE ACTIVITIES ARE
GOVERNMENTAL FUNCTIONS ENTITLED TO WHATEVER TAX IMMUNITY ATTACHES TO
THOSE FUNCTIONS WHEN CARRIED ON BY THE GOVERNMENT ITSELF THROUGH ITS
DEPARTMENTS.  SEE MCCULLOCH V. MARYLAND, SUPRA, 421-422; SMITH V.
KANSAS CITY TITLE CO., 255 U.S. 180, 208; FEDERAL LAND BANK V.
CROSLAND, 261 U.S. 374; NEW YORK EX REL. ROGERS V. GRAVES, SUPRA. 

THE SINGLE QUESTION WITH WHICH WE ARE NOW CONCERNED IS WHETHER THE TAX
LAID BY THE STATE UPON THE SALARY OF RESPONDENT, EMPLOYED BY A
CORPORATE INSTRUMENTALITY OF THE FEDERAL GOVERNMENT, IMPOSES AN
UNCONSTITUTIONAL BURDEN UPON THAT GOVERNMENT.  THE THEORY OF THE TAX
IMMUNITY OF EITHER GOVERNMENT, STATE OR NATIONAL, AND ITS
INSTRUMENTALITIES, FROM TAXATION BY THE OTHER, HAS BEEN RESTED UPON AN
IMPLIED LIMITATION ON THE TAXING POWER OF EACH, SUCH AS TO FORESTALL
UNDUE INTERFERENCE, THROUGH THE EXERCISE OF THAT POWER, WITH THE
GOVERNMENTAL ACTIVITIES OF THE OTHER.  THAT THE TWO TYPES OF IMMUNITY
MAY NOT, IN ALL RESPECTS, STAND ON A PARITY HAS BEEN RECOGNIZED FROM
THE BEGINNING, MCCULLOCH V. MARYLAND, SUPRA, 435-436, AND POSSIBLE
DIFFERENCES IN APPLICATION, DERIVING FROM DIFFERENCES IN THE SOURCE,
NATURE AND EXTENT OF THE IMMUNITY OF THE GOVERNMENTS AND THEIR
AGENCIES, WERE POINTED OUT AND DISCUSSED BY THIS COURT IN DETAIL DURING
THE LAST TERM.  HELVERING V. GERHARDT, SUPRA, 412-413, 416. 

SO FAR AS NOW RELEVANT, THOSE DIFFERENCES HAVE BEEN THOUGHT TO BE
TRACEABLE TO THE FACT THAT THE FEDERAL GOVERNMENT IS ONE OF DELEGATED
POWERS IN THE EXERCISE OF WHICH CONGRESS IS SUPREME; SO THAT EVERY
AGENCY WHICH CONGRESS CAN CONSTITUTIONALLY CREATE IS A GOVERNMENTAL
AGENCY.  AND SINCE THE POWER TO CREATE THE AGENCY INCLUDES THE IMPLIED
POWER TO DO WHATEVER IS NEEDFUL OR APPROPRIATE, IF NOT EXPRESSLY
PROHIBITED, TO PROTECT THE AGENCY, THERE HAS BEEN ATTRIBUTED TO
CONGRESS SOME SCOPE, THE LIMITS OF WHICH IT IS NOT NOW NECESSARY TO
DEFINE, FOR GRANTING OR WITHHOLDING IMMUNITY OF FEDERAL AGENCIES FROM
STATE TAXATION.  SEE VAN ALLEN V. THE ASSESSORS, 3 WALL.  573, 583,
585; BANK V. SUPERVISORS, 7 WALL.  26, 30, 31; THOMSON V. PACIFIC
RAILROAD, 9 WALL.  579, 588, 590; PEOPLE V. WEAVER, 100 U.S. 539, 543;
MERCANTILE BANK V. NEW YORK, 121 U.S. 138, 154; OWENSBORO NATIONAL BANK
V. OWENSBORO, 173 U.S. 664, 668; SHAW V. GIBSON-ZAHNISER OIL CORP., 276
U.S. 575, 581; OKLAHOMA V. BARNSDALL REFINERIES, INC., 296 U.S. 521,
525-526; BALTIMORE NATIONAL BANK V. STATE TAX COMM'N, 297 U.S. 209, 211
212; BRITISH-AMERICAN OIL CO. V. BOARD, 299 U.S. 159; JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, 161; HELVERING V. GERHARDT, SUPRA, 411,
412, 417; CF. UNITED STATES V. BEKINS, 304 U.S. 27, 52.  WHETHER ITS
POWER TO GRANT TAX EXEMPTIONS AS AN INCIDENT TO THE EXERCISE OF POWERS
SPECIFICALLY GRANTED BY THE CONSTITUTION CAN EVER, IN ANY
CIRCUMSTANCES, EXTEND BEYOND THE CONSTITUTIONAL IMMUNITY OF FEDERAL
AGENCIES WHICH COURTS HAVE IMPLIED, IS A QUESTION WHICH NEED NOT NOW BE
DETERMINED. 

CONGRESS HAS DECLARED IN SEC. 4 OF THE ACT THAT THE HOME OWNERS' LOAN
CORPORATION IS AN INSTRUMENTALITY OF THE UNITED STATES AND THAT ITS
BONDS ARE EXEMPT, AS TO PRINCIPAL AND INTEREST, FROM FEDERAL AND STATE
TAXATION, EXCEPT SURTAXES, ESTATE, INHERITANCE AND GIFT TAXES.  THE
CORPORATION ITSELF, "INCLUDING ITS FRANCHISE, ITS CAPITAL, RESERVES AND
SURPLUS, AND ITS LOANS AND INCOME," IS LIKEWISE EXEMPTED FROM TAXATION;
ITS REAL PROPERTY IS SUBJECT TO TAX TO THE SAME EXTENT AS OTHER REAL
PROPERTY.  BUT CONGRESS HAS GIVEN NO INTIMATION OF ANY PURPOSE EITHER
TO GRANT OR WITHHOLD IMMUNITY FROM STATE TAXATION OF THE SALARY OF THE
CORPORATION'S EMPLOYEES, AND THE CONGRESSIONAL INTENTION IS NOT TO BE
GATHERED FROM THE STATUTE BY IMPLICATION.  CF. BALTIMORE NATIONAL BANK
V. STATE TAX COMM'N, SUPRA. 

IT IS TRUE THAT THE SILENCE OF CONGRESS, WHEN IT HAS AUTHORITY TO
SPEAK, MAY SOMETIMES GIVE RISE TO AN IMPLICATION AS TO THE
CONGRESSIONAL PURPOSE.  THE NATURE AND EXTENT OF THAT IMPLICATION
DEPEND UPON THE NATURE OF THE CONGRESSIONAL POWER AND THE EFFECT OF ITS
EXERCISE.  FN1  BUT THERE IS LITTLE SCOPE FOR THE APPLICATION OF THAT
DOCTRINE TO THE TAX IMMUNITY OF GOVERNMENTAL INSTRUMENTALITIES.  THE
CONSTITUTIONAL IMMUNITY OF EITHER GOVERNMENT FROM TAXATION BY THE
OTHER, WHERE CONGRESS IS SILENT, HAS ITS SOURCE IN AN IMPLIED
RESTRICTION UPON THE POWERS OF THE TAXING GOVERNMENT.  SO FAR AS THE
IMPLICATION RESTS UPON THE PURPOSE TO AVOID INTERFERENCE WITH THE
FUNCTIONS OF THE TAXED GOVERNMENT OR THE IMPOSITION UPON IT OF THE
ECONOMIC BURDEN OF THE TAX, IT IS PLAIN THAT THERE IS NO BASIS FOR
IMPLYING A PURPOSE OF CONGRESS TO EXEMPT THE FEDERAL GOVERNMENT OR ITS
AGENCIES FROM TAX BURDENS WHICH ARE UNSUBSTANTIAL OR WHICH COURTS ARE
UNABLE TO DISCERN.  SILENCE OF CONGRESS IMPLIES IMMUNITY NO MORE THAN
DOES THE SILENCE OF THE CONSTITUTION.  IT FOLLOWS THAT WHEN EXEMPTION
FROM STATE TAXATION IS CLAIMED ON THE GROUND THAT THE FEDERAL
GOVERNMENT IS BURDENED BY THE TAX, AND CONGRESS HAS DISCLOSED NO
INTENTION WITH RESPECT TO THE CLAIMED IMMUNITY, IT IS IN ORDER TO
CONSIDER THE NATURE AND EFFECT OF THE ALLEGED BURDEN, AND IF IT APPEARS
THAT THERE IS NO GROUND FOR IMPLYING A CONSTITUTIONAL IMMUNITY, THERE
IS EQUALLY A WANT OF ANY GROUND FOR ASSUMING ANY PURPOSE ON THE PART OF
CONGRESS TO CREATE AN IMMUNITY. 

THE PRESENT TAX IS A NON-DISCRIMINATORY TAX ON INCOME APPLIED TO
SALARIES AT A SPECIFIED RATE.  IT IS NOT IN FORM OR SUBSTANCE A TAX
UPON THE HOME OWNERS' LOAN CORPORATION OR ITS PROPERTY OR INCOME, NOR
IS IT PAID BY THE CORPORATION OR THE GOVERNMENT FROM THEIR FUNDS.  IT
IS MEASURED BY INCOME WHICH BECOMES THE PROPERTY OF THE TAXPAYER WHEN
RECEIVED AS COMPENSATION FOR HIS SERVICES; AND THE TAX LAID UPON THE
PRIVILEGE OF RECEIVING IT IS PAID FROM HIS PRIVATE FUNDS AND NOT FROM
THE FUNDS OF THE GOVERNMENT, EITHER DIRECTLY OR INDIRECTLY.  THE
THEORY, WHICH ONCE WON A QUALIFIED APPROVAL, THAT A TAX ON INCOME IS
LEGALLY OR ECONOMICALLY A TAX ON ITS SOURCE, IS NO LONGER TENABLE, NEW
YORK EX REL. COHN V. GRAVES, 300 U.S. 308, 313, 314; HALE V. STATE
BOARD, 302 U.S. 95, 108; HELVERING V. GERHARDT, SUPRA; CF. METCALF &
EDDY V. MITCHELL, 269 U.S. 514; FOX FILM CORP. V. DOYAL, 286 U.S. 123;
JAMES V. DRAVO CONTRACTING CO., SUPRA, 149; HELVERING V. MOUNTAIN
PRODUCERS CORP., 303 U.S. 376, AND THE ONLY POSSIBLE BASIS FOR IMPLYING
A CONSTITUTIONAL IMMUNITY FROM STATE INCOME TAX OF THE SALARY OF AN
EMPLOYEE OF THE NATIONAL GOVERNMENT OR OF A GOVERNMENTAL AGENCY IS THAT
THE ECONOMIC BURDEN OF THE TAX IS IN SOME WAY PASSED ON SO AS TO IMPOSE
A BURDEN ON THE NATIONAL GOVERNMENT TANTAMOUNT TO AN INTERFERENCE BY
ONE GOVERNMENT WITH THE OTHER IN THE PERFORMANCE OF ITS FUNCTIONS. 

IN THE FOUR CASES IN WHICH THIS COURT HAS HELD THAT THE SALARY OF AN
OFFICER OR EMPLOYEE OF ONE GOVERNMENT OR ITS INSTRUMENTALITY WAS IMMUNE
FROM TAXATION BY THE OTHER, IT WAS ASSUMED, WITHOUT DISCUSSION, THAT
THE IMMUNITY OF A GOVERNMENT OR ITS INSTRUMENTALITY EXTENDS TO THE
SALARIES OF ITS OFFICERS AND EMPLOYEES.  FN2  THIS ASSUMPTION MADE WITH
RESPECT TO THE SALARY OF A GOVERNMENTAL OFFICER IN DOBBINS V.
COMMISSIONERS OF ERIE COUNTY, 16 PET. 435, AND IN COLLECTOR V. DAY, 11
WALL.  113, WAS LATER EXTENDED TO CONFER IMMUNITY ON INCOME DERIVED BY
A LESSEE FROM LANDS LEASED TO HIM BY A GOVERNMENT IN THE PERFORMANCE OF
A GOVERNMENTAL FUNCTION, GILLESPIE V. OKLAHOMA, 257 U.S. 501; BURNET V.
CORONADO OIL & GAS CO., 285 U.S. 393, AND CASES CITED, ALTHOUGH THE
CLAIM OF A LIKE EXEMPTION FROM TAX ON THE INCOME OF A CONTRACTOR
ENGAGED IN CARRYING OUT A GOVERNMENTAL PROJECT WAS REJECTED BOTH IN THE
CASE OF A CONTRACTOR WITH A STATE, METCALF & EDDY V. MITCHELL, SUPRA,
AND OF A CONTRACTOR WITH THE NATIONAL GOVERNMENT, JAMES V. DRAVO
CONTRACTING CO., SUPRA. 

THE ULTIMATE REPUDIATION IN HELVERING V. MOUNTAIN PRODUCERS CORP.,
SUPRA, OF THE DOCTRINE THAT A TAX ON THE INCOME OF A LESSEE DERIVED
FROM A LEASE OF GOVERNMENT OWNED OR CONTROLLED LANDS IS A FORBIDDEN
INTERFERENCE WITH THE ACTIVITIES OF THE GOVERNMENT CONCERNED LED TO THE
REEXAMINATION BY THIS COURT, IN THE GERHARDT CASE, OF THE THEORY
UNDERLYING THE ASSERTED IMMUNITY FROM TAXATION BY ONE GOVERNMENT OF
SALARIES OF EMPLOYEES OF THE OTHER.  IT WAS THERE POINTED OUT THAT THE
IMPLIED IMMUNITY OF ONE GOVERNMENT AND ITS AGENCIES FROM TAXATION BY
THE OTHER SHOULD, AS A PRINCIPLE OF CONSTITUTIONAL CONSTRUCTION, BE
NARROWLY RESTRICTED.  FOR THE EXPANSION OF THE IMMUNITY OF THE ONE
GOVERNMENT CORRESPONDINGLY CURTAILS THE SOVEREIGN POWER OF THE OTHER TO
TAX, AND WHERE THAT IMMUNITY IS INVOKED BY THE PRIVATE CITIZEN IT TENDS
TO OPERATE FOR HIS BENEFIT AT THE EXPENSE OF THE TAXING GOVERNMENT AND
WITHOUT CORRESPONDING BENEFIT TO THE GOVERNMENT IN WHOSE NAME THE
IMMUNITY IS CLAIMED.  SEE METCALF & EDDY V. MITCHELL, SUPRA, 523-524;
JAMES V. DRAVO CONTRACTING CO., SUPRA, 156-158.  IT WAS FURTHER POINTED
OUT THAT, AS APPLIED TO THE TAXATION OF SALARIES OF THE EMPLOYEES OF
ONE GOVERNMENT, THE PURPOSE OF THE IMMUNITY WAS NOT TO CONFER BENEFITS
ON THE EMPLOYEES BY RELIEVING THEM FROM CONTRIBUTING THEIR SHARE OF THE
FINANCIAL SUPPORT OF THE OTHER GOVERNMENT, WHOSE BENEFITS THEY ENJOY,
OR TO GIVE AN ADVANTAGE TO A GOVERNMENT BY ENABLING IT TO ENGAGE
EMPLOYEES AT SALARIES LOWER THAN THOSE PAID FOR LIKE SERVICES BY OTHER
EMPLOYERS, PUBLIC OR PRIVATE,  FN3  BUT TO PREVENT UNDUE INTERFERENCE
WITH THE ONE GOVERNMENT BY IMPOSING ON IT THE TAX BURDENS OF THE
OTHER. 

IN APPLYING THESE CONTROLLING PRINCIPLES IN THE GERHARDT CASE THE
COURT HELD THAT THE SALARIES OF EMPLOYEES OF THE NEW YORK PORT
AUTHORITY, A STATE INSTRUMENTALITY CREATED BY NEW YORK AND NEW JERSEY,
WERE NOT IMMUNE FROM FEDERAL INCOME TAX, EVEN THOUGH THE AUTHORITY BE
REGARDED AS NOT SUBJECT TO FEDERAL TAXATION.  IT WAS SAID THAT THE
TAXPAYERS ENJOYED THE BENEFIT AND PROTECTION OF THE LAWS OF THE UNITED
STATES AND WERE UNDER A DUTY, COMMON TO ALL CITIZENS, TO CONTRIBUTE
FINANCIAL SUPPORT TO THE GOVERNMENT; THAT THE TAX LAID ON THEIR
SALARIES AND PAID BY THEM COULD BE SAID TO AFFECT OR BURDEN THEIR
EMPLOYER, THE PORT AUTHORITY, OR THE STATES CREATING IT, ONLY SO FAR AS
THE BURDEN OF THE TAX WAS ECONOMICALLY PASSED ON TO THE EMPLOYER; THAT
A NON-DISCRIMINATORY TAX LAID ON THE INCOME OF ALL MEMBERS OF THE
COMMUNITY COULD NOT BE ASSUMED TO OBSTRUCT THE FUNCTION WHICH NEW YORK
AND NEW JERSEY HAD UNDERTAKEN TO PERFORM, OR TO CAST AN ECONOMIC BURDEN
UPON THEM, MORE THAN DOES THE GENERAL TAXATION OF PROPERTY AND INCOME
WHICH, TO SOME EXTENT, INCAPABLE OF MEASUREMENT BY ECONOMISTS, MAY TEND
TO RAISE THE PRICE LEVEL OF LABOR AND MATERIALS.  FN4  THE COURT
CONCLUDED THAT THE CLAIMED IMMUNITY WOULD DO NO MORE THAN RELIEVE THE
TAXPAYERS FROM THE DUTY OF FINANCIAL SUPPORT TO THE NATIONAL GOVERNMENT
IN ORDER TO SECURE TO THE STATE A THEORETICAL ADVANTAGE, SPECULATIVE IN
CHARACTER AND MEASUREMENT AND TOO UNSUBSTANTIAL TO FORM THE BASIS OF AN
IMPLIED CONSTITUTIONAL IMMUNITY FROM TAXATION. 

THE CONCLUSION REACHED IN THE GERHARDT CASE THAT IN TERMS OF
CONSTITUTIONAL TAX IMMUNITY A FEDERAL INCOME TAX ON THE SALARY OF AN
EMPLOYEE IS NOT A PROHIBITED BURDEN ON THE EMPLOYER MAKES IT IMPERATIVE
THAT WE SHOULD CONSIDER ANEW THE IMMUNITY HERE CLAIMED FOR THE SALARY
OF AN EMPLOYEE OF A FEDERAL INSTRUMENTALITY.  AS ALREADY INDICATED,
SUCH DIFFERENCES AS THERE MAY BE BETWEEN THE IMPLIED TAX IMMUNITY OF A
STATE AND THE CORRESPONDING IMMUNITY OF THE NATIONAL GOVERNMENT AND ITS
INSTRUMENTALITIES MAY BE TRACED TO THE FACT THAT THE NATIONAL
GOVERNMENT IS ONE OF DELEGATED POWERS, IN THE EXERCISE OF WHICH IT IS
SUPREME.  WHATEVER SCOPE THIS MAY GIVE TO THE NATIONAL GOVERNMENT TO
CLAIM IMMUNITY FROM STATE TAXATION OF ALL INSTRUMENTALITIES WHICH IT
MAY CONSTITUTIONALLY CREATE, AND WHATEVER AUTHORITY CONGRESS MAY
POSSESS AS INCIDENTAL TO THE EXERCISE OF ITS DELEGATED POWERS TO GRANT
OR WITHHOLD IMMUNITY FROM STATE TAXATION, CONGRESS HAS NOT SOUGHT IN
THIS CASE TO EXERCISE SUCH POWER.  HENCE THESE DISTINCTIONS BETWEEN THE
TWO TYPES OF IMMUNITY CANNOT AFFECT THE QUESTION WITH WHICH WE ARE NOW
CONCERNED.  THE BURDEN ON GOVERNMENT OF A NON-DISCRIMINATORY INCOME TAX
APPLIED TO THE SALARY OF THE EMPLOYEE OF A GOVERNMENT OR ITS
INSTRUMENTALITY IS THE SAME, WHETHER A STATE OR NATIONAL GOVERNMENT IS
CONCERNED.  THE DETERMINATION IN THE GERHARDT CASE THAT THE FEDERAL
INCOME TAX IMPOSED ON THE EMPLOYEES OF THE PORT AUTHORITY WAS NOT A
BURDEN ON THE PORT AUTHORITY MADE IT UNNECESSARY TO CONSIDER WHETHER
THE AUTHORITY ITSELF WAS IMMUNE FROM FEDERAL TAXATION; THE CLAIMED
IMMUNITY FAILED BECAUSE EVEN IF THE PORT AUTHORITY WERE ITSELF IMMUNE
FROM FEDERAL INCOME TAX, THE TAX UPON THE INCOME OF ITS EMPLOYEES CAST
UPON IT NO UNCONSTITUTIONAL BURDEN. 

ASSUMING, AS WE DO, THAT THE HOME OWNERS' LOAN CORPORATION IS CLOTHED
WITH THE SAME IMMUNITY FROM STATE TAXATION AS THE GOVERNMENT ITSELF, WE
CANNOT SAY THAT THE PRESENT TAX ON THE INCOME OF ITS EMPLOYEES LAYS ANY
UNCONSTITUTIONAL BURDEN UPON IT.  ALL THE REASONS FOR REFUSING TO IMPLY
A CONSTITUTIONAL PROHIBITION OF FEDERAL INCOME TAXATION OF SALARIES OF
STATE EMPLOYEES, STATED AT LENGTH IN THE GERHARDT CASE, ARE OF EQUAL
FORCE WHEN IMMUNITY IS CLAIMED FROM STATE INCOME TAX ON SALARIES PAID
BY THE NATIONAL GOVERNMENT OR ITS AGENCIES.  IN THIS RESPECT WE
PERCEIVE NO BASIS FOR A DIFFERENCE IN RESULT WHETHER THE TAXED INCOME
BE SALARY OR SOME OTHER FORM OF COMPENSATION, OR WHETHER THE TAXPAYER
BE AN EMPLOYEE OR AN OFFICER OF EITHER A STATE OR THE NATIONAL
GOVERNMENT, OR OF ITS INSTRUMENTALITIES.  IN NO CASE IS THERE BASIS FOR
THE ASSUMPTION THAT ANY SUCH TANGIBLE OR CERTAIN ECONOMIC BURDEN IS
IMPOSED ON THE GOVERNMENT CONCERNED AS WOULD JUSTIFY A COURT'S
DECLARING THAT THE TAXPAYER IS CLOTHED WITH THE IMPLIED CONSTITUTIONAL
TAX IMMUNITY OF THE GOVERNMENT BY WHICH HE IS EMPLOYED.  THAT
ASSUMPTION, MADE IN COLLECTOR V. DAY, SUPRA, AND IN NEW YORK EX REL.
ROGERS V. GRAVES, SUPRA, IS CONTRARY TO THE REASONING AND TO THE
CONCLUSIONS REACHED IN THE GERHARDT CASE AND IN METCALF & EDDY V.
MITCHELL, SUPRA; GROUP NO. 1 OIL CORP. V. BASS, 283 U.S. 279; JAMES V.
DRAVO CONTRACTING CO., SUPRA; HELVERING V. MOUNTAIN PRODUCERS CORP.,
SUPRA; MCLOUGHLIN V. COMMISSIONER, 303 U.S. 218.  IN THEIR LIGHT THE
ASSUMPTION CAN NO LONGER BE MADE.  COLLECTOR V. DAY, SUPRA, AND NEW
YORK EX REL. ROGERS V. GRAVES, SUPRA, ARE OVERRULED SO FAR AS THEY
RECOGNIZE AN IMPLIED CONSTITUTIONAL IMMUNITY FROM INCOME TAXATION OF
THE SALARIES OF OFFICERS OR EMPLOYEES OF THE NATIONAL OR A STATE
GOVERNMENT OR THEIR INSTRUMENTALITIES. 

SO MUCH OF THE BURDEN OF A NON-DISCRIMINATORY GENERAL TAX UPON THE
INCOMES OF EMPLOYEES OF A GOVERNMENT, STATE OR NATIONAL, AS MAY BE
PASSED ON ECONOMICALLY TO THAT GOVERNMENT, THROUGH THE EFFECT OF THE
TAX ON THE PRICE LEVEL OF LABOR OR MATERIALS, IS BUT THE NORMAL
INCIDENT OF THE ORGANIZATION WITHIN THE SAME TERRITORY OF TWO
GOVERNMENTS, EACH POSSESSING THE TAXING POWER.  THE BURDEN, SO FAR AS
IT CAN BE SAID TO EXIST OR TO AFFECT THE GOVERNMENT IN ANY INDIRECT OR
INCIDENTAL WAY, IS ONE WHICH THE CONSTITUTION PRESUPPOSES, AND HENCE IT
CANNOT RIGHTLY BE DEEMED TO BE WITHIN AN IMPLIED RESTRICTION UPON THE
TAXING POWER OF THE NATIONAL AND STATE GOVERNMENTS WHICH THE
CONSTITUTION HAS EXPRESSLY GRANTED TO ONE AND HAS CONFIRMED TO THE
OTHER.  THE IMMUNITY IS NOT ONE TO BE IMPLIED FROM THE CONSTITUTION,
BECAUSE IF ALLOWED IT WOULD IMPOSE TO AN INADMISSIBLE EXTENT A
RESTRICTION ON THE TAXING POWER WHICH THE CONSTITUTION HAS RESERVED TO
THE STATE GOVERNMENTS.  REVERSED. 

FN1  THE FAILURE OF CONGRESS TO REGULATE INTERSTATE COMMERCE HAS
GENERALLY BEEN TAKEN TO SIGNIFY A CONGRESSIONAL PURPOSE TO LEAVE
UNDISTURBED THE AUTHORITY OF THE STATES TO MAKE REGULATIONS AFFECTING
THE COMMERCE IN MATTERS OF PECULIARLY LOCAL CONCERN, BUT TO WITHHOLD
FROM THEM AUTHORITY TO MAKE REGULATIONS AFFECTING THOSE PHASES OF IT
WHICH, BECAUSE OF THE NEED OF A NATIONAL UNIFORMITY, DEMAND THAT THEIR
REGULATION, IF ANY, BE PRESCRIBED BY A SINGLE AUTHORITY.  COOLEY V.
BOARD OF WARDENS, 12 HOW.  299, 319; MINNESOTA RATE CASES, 230 U.S.
352, 399-400; KELLY V. WASHINGTON, 302 U.S. 1, 14; SOUTH CAROLINA
HIGHWAY DEPT. V. BARNWELL BROTHERS, 303 U.S. 177, 184-185; MILK CONTROL
BOARD V. EISENBERG FARM PRODUCTS, ANTE, P. 346.  AS TO THE IMPLICATIONS
FROM CONGRESSIONAL SILENCE IN THE FIELD OF STATE TAXATION OF INTERSTATE
COMMERCE AND ITS INSTRUMENTALITIES, SEE WESTERN LIVE STOCK V. BUREAU OF
REVENUE, 303 U.S. 250; GWIN, WHITE & PRINCE V. HENNEFORD, 305 U.S.
434. 

FN2  IN DOBBINS V. COMMISSIONERS OF ERIE COUNTY, 16 PET. 435, A
PENNSYLVANIA TAX, NOMINALLY LAID UPON THE OFFICE OF THE CAPTAIN OF A
FEDERAL REVENUE CUTTER, BUT ROUGHLY MEASURED BY THE SALARY PAID TO THE
OFFICER, WAS HELD INVALID.  THE COURT SEEMS TO HAVE RESTED ITS DECISION
IN PART ON THE GROUND THAT A TAX ON THE EMOLUMENTS OF HIS OFFICE WAS
THE EQUIVALENT OF A TAX UPON AN ACTIVITY OF THE NATIONAL GOVERNMENT,
AND IN PART ON THE GROUND THAT IT WAS AN INFRINGEMENT OF THE IMPLIED
SUPERIOR POWER OF CONGRESS TO FIX THE COMPENSATION OF GOVERNMENT
EMPLOYEES WITHOUT DIMINUTION BY STATE TAXATION. 

IN COLLECTOR V. DAY, 11 WALL.  113, THIS COURT HELD THAT THE SALARY
OF A STATE PROBATE JUDGE WAS CONSTITUTIONALLY IMMUNE FROM FEDERAL
INCOME TAX ON THE GROUNDS THAT THE SALARY OF AN OFFICER OF A STATE IS
EXEMPT FROM FEDERAL TAXATION IF THE FUNCTION HE PERFORMS AS AN OFFICER
IS EXEMPT, CITING DOBBINS V. COMMISSIONERS, SUPRA, AND THAT THERE WAS
AN IMPLIED CONSTITUTIONAL RESTRICTION UPON THE POWER OF THE NATIONAL
GOVERNMENT TO TAX A STATE IN THE EXERCISE OF THOSE FUNCTIONS WHICH WERE
ESSENTIAL TO THE MAINTENANCE OF STATE GOVERNMENTS AS THEY WERE
ORGANIZED AT THE TIME WHEN THE CONSTITUTION WAS ADOPTED.  THE
POSSIBILITY THAT A NON-DISCRIMINATORY TAX UPON THE INCOME OF A STATE
OFFICER DID NOT INVOLVE ANY SUBSTANTIAL INTERFERENCE WITH THE
FUNCTIONING OF THE STATE GOVERNMENT WAS NOT DISCUSSED EITHER IN THIS OR
THE DOBBINS CASE. 

IN NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S. 401, THE QUESTION WAS
WHETHER THE SALARY OF THE GENERAL COUNSEL OF THE PANAMA RAIL ROAD
COMPANY WAS EXEMPT FROM STATE INCOME TAX BECAUSE THE RAILROAD COMPANY
WAS AN INSTRUMENTALITY OF THE FEDERAL GOVERNMENT.  THE SOLE QUESTION
RAISED BY THE TAXING STATE WAS WHETHER THE RAILROAD COMPANY WAS A
GOVERNMENT INSTRUMENTALITY.  THE COURT, HAVING FOUND THAT THE RAILROAD
COMPANY WAS SUCH AN INSTRUMENTALITY, DISPOSED OF THE MATTER OF TAX
EXEMPTION OF THE SALARY OF ITS EMPLOYEES BY DECLARING:  "THE RAILROAD
COMPANY BEING IMMUNE FROM STATE TAXATION, IT NECESSARILY RESULTS THAT
FIXED SALARIES AND COMPENSATION PAID TO ITS OFFICERS AND EMPLOYEES IN
THEIR CAPACITY AS SUCH ARE LIKEWISE IMMUNE."  NEW YORK EX REL. ROGERS
V. GRAVES, SUPRA, 408. 

IN BRUSH V. COMMISSIONER, 300 U.S. 352, THE APPLICABLE TREASURY
REGULATION UPON WHICH THE GOVERNMENT RELIED EXEMPTED FROM FEDERAL
INCOME TAX THE COMPENSATION OF "STATE OFFICERS AND EMPLOYEES" FOR
"SERVICES RENDERED IN CONNECTION WITH THE EXERCISE OF AN ESSENTIAL
GOVERNMENTAL FUNCTION OF THE STATE."  THE COURT HELD THAT THE
MAINTENANCE OF THE PUBLIC WATER SYSTEM OF NEW YORK CITY WAS AN
ESSENTIAL GOVERNMENTAL FUNCTION, AND IN DETERMINING WHETHER THE SALARY
OF THE ENGINEER IN CHARGE OF THAT PROJECT WAS SUBJECT TO FEDERAL INCOME
TAX THE COURT DECLARED, CITING NEW YORK EX REL. ROGERS V. GRAVES,
SUPRA, 408; "THE ANSWER DEPENDS UPON WHETHER THE WATER SYSTEM OF THE
CITY WAS CREATED AND IS CONDUCTED IN THE EXERCISE OF THE CITY'S
GOVERNMENTAL FUNCTIONS.  IF SO, ITS OPERATIONS ARE IMMUNE FROM FEDERAL
TAXATION AND, AS A NECESSARY COROLLARY, 'FIXED SALARIES AND
COMPENSATION PAID TO ITS OFFICERS AND EMPLOYEES IN THEIR CAPACITY AS
SUCH ARE LIKEWISE IMMUNE."  BRUSH V. COMMISSIONER, SUPRA, 360. 

FN3  THE FACT THAT THE EXPENSES OF THE ONE GOVERNMENT MIGHT BE
LESSENED IF ALL THOSE WHO DEAL WITH IT WERE EXEMPT FROM TAXATION BY THE
OTHER WAS THOUGHT NOT TO BE AN ADEQUATE BASIS FOR TAX IMMUNITY IN
METCALF & EDDY V. MITCHELL, 269 U.S. 514; GROUP NO. 1 OIL CORP. V.
BASS, 283 U.S. 279; BURNET V. JERGINS TRUST, 288 U.S. 508; JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 134; HELVERING V. MOUNTAIN PRODUCERS
CORP., 303 U.S. 376. 

FN4  THAT THE ECONOMIC BURDEN OF A TAX ON SALARIES IS PASSED ON TO
THE EMPLOYER OR THAT EMPLOYEES WILL ACCEPT A LOWER GOVERNMENT SALARY
BECAUSE OF ITS TAX IMMUNITY, ARE FORMULAS WHICH HAVE NOT WON ACCEPTANCE
BY ECONOMISTS AND CANNOT BE JUDICIALLY ASSUMED.  AS TO THE "PASSING ON"
OF THE ECONOMIC BURDEN OF THE TAX, SEE SELIGMAN, INCOME TAX, VII
ENCYCLOPEDIA OF SOCIAL SCIENCES, 626-638; PLEHN, PUBLIC FINANCE (5TH
ED.), P. 320; BUEHLER, PUBLIC FINANCE, P. 240; LUTZ, PUBLIC FINANCE (2D
ED.), P. 336, AND SEE INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S.
570, 581, FOOTNOTE 1.  AS TO PREFERENCE FOR GOVERNMENT EMPLOYMENT
BECAUSE THE SALARY IS TAX EXEMPT, SEE DICKINSON, COMPENSATING
INDUSTRIAL EFFORT (1937), PP. 7-8; DOUGLAS, THE REALITY OF NON
COMMERCIAL INCENTIVES IN INDUSTRIAL LIFE, C. V OF THE TREND OF
ECONOMICS (1924); VOL. I, FETTER, ECONOMIC PRINCIPLES (1915), P. 203. 

MR. CHIEF JUSTICE HUGHES CONCURS IN THE RESULT. 

MR. JUSTICE FRANKFURTER, CONCURRING: 

I JOIN IN THE COURT'S OPINION BUT DEEM IT APPROPRIATE TO ADD A FEW
REMARKS.  THE VOLUME OF THE COURT'S BUSINESS HAS LONG SINCE MADE
IMPOSSIBLE THE EARLY HEALTHY PRACTICE WHEREBY THE JUSTICES GAVE
EXPRESSION TO INDIVIDUAL OPINIONS.  FN1  BUT THE OLD TRADITION STILL
HAS RELEVANCE WHEN AN IMPORTANT SHIFT IN CONSTITUTIONAL DOCTRINE IS
ANNOUNCED AFTER A RECONSTRUCTION IN THE MEMBERSHIP OF THE COURT.  SUCH
SHIFTS OF OPINION SHOULD NOT DERIVE FROM MERE PRIVATE JUDGMENT.  THEY
MUST BE DULY MINDFUL OF THE NECESSARY DEMANDS OF CONTINUITY IN
CIVILIZED SOCIETY.  A REVERSAL OF A LONG CURRENT OF DECISIONS CAN BE
JUSTIFIED ONLY IF ROOTED IN THE CONSTITUTION ITSELF AS AN HISTORIC
DOCUMENT DESIGNED FOR A DEVELOPING NATION. 

FOR ONE HUNDRED AND TWENTY YEARS THIS COURT HAS BEEN CONCERNED WITH
CLAIMS OF IMMUNITY FROM TAXES IMPOSED BY ONE AUTHORITY IN OUR DUAL
SYSTEM OF GOVERNMENT BECAUSE OF THE TAXPAYER'S RELATION TO THE OTHER. 
THE BASIS FOR THE COURT'S INTERVENTION IN THIS FIELD HAS NOT BEEN ANY
EXPLICIT PROVISION OF THE CONSTITUTION.  THE STATES, AFTER THEY FORMED
THE UNION, CONTINUED TO HAVE THE SAME RANGE OF TAXING POWER WHICH THEY
HAD BEFORE, BARRING ONLY DUTIES AFFECTING EXPORTS, IMPORTS, AND ON
TONNAGE.  FN2  CONGRESS, ON THE OTHER HAND, TO LAY TAXES IN ORDER "TO
PAY THE DEBTS AND PROVIDE FOR THE COMMON DEFENSE AND GENERAL WELFARE OF
THE UNITED STATES," ART. I, SEC. 8, CAN REACH EVERY PERSON AND EVERY
DOLLAR IN THE LAND WITH DUE REGARD TO CONSTITUTIONAL LIMITATIONS AS TO
THE METHOD OF LAYING TAXES.  BUT, AS IS TRUE OF OTHER GREAT ACTIVITIES
OF THE STATE AND NATIONAL GOVERNMENTS, THE FACT THAT WE ARE A
FEDERALISM RAISES PROBLEMS REGARDING THESE VITAL POWERS OF TAXATION. 
SINCE TWO GOVERNMENTS HAVE AUTHORITY WITHIN THE SAME TERRITORY, NEITHER
THROUGH ITS POWER TO TAX CAN BE ALLOWED TO CRIPPLE THE OPERATIONS OF
THE OTHER.  THEREFORE STATE AND FEDERAL GOVERNMENTS MUST AVOID
EXACTIONS WHICH DISCRIMINATE AGAINST EACH OTHER OR OBVIOUSLY INTERFERE
WITH ONE ANOTHER'S OPERATIONS.  THESE WERE THE DETERMINING
CONSIDERATIONS THAT LED THE GREAT CHIEF JUSTICE TO STRIKE DOWN THE
MARYLAND STATUTE AS AN UNAMBIGUOUS MEASURE OF DISCRIMINATION AGAINST
THE USE BY THE UNITED STATES OF THE BANK OF THE UNITED STATES AS ONE OF
ITS INSTRUMENTS OF GOVERNMENT. 

THE ARGUMENTS UPON WHICH MCCULLOCH V. MARYLAND, 4 WHEAT.  316, RESTED
HAD THEIR ROOTS IN ACTUALITY.  BUT THEY HAVE BEEN DISTORTED BY STERILE
REFINEMENTS UNRELATED TO AFFAIRS.  THESE REFINEMENTS DERIVED AUTHORITY
FROM AN UNFORTUNATE REMARK IN THE OPINION IN MCCULLOCH V. MARYLAND. 
PARTLY AS A FLOURISH OF RHETORIC AND PARTLY BECAUSE THE INTELLECTUAL
FASHION OF THE TIMES INDULGED A FREE USE OF ABSOLUTES, CHIEF JUSTICE
MARSHALL GAVE CURRENCY TO THE PHRASE THAT "THE POWER TO TAX INVOLVES
THE POWER TO DESTROY."  ID., AT P. 431.  THIS DICTUM WAS TREATED AS
THOUGH IT WERE A CONSTITUTIONAL MANDATE.  BUT NOT WITHOUT PROTEST.  ONE
OF THE MOST TRENCHANT MINDS ON THE MARSHALL COURT, JUSTICE WILLIAM
JOHNSON, EARLY ANALYZED THE DANGEROUS INROADS UPON THE POLITICAL
FREEDOM OF THE STATES AND THE UNION WITHIN THEIR RESPECTIVE ORBITS
RESULTING FROM A DOCTRINAIRE APPLICATION OF THE GENERALITIES UTTERED IN
THE COURSE OF THE OPINION IN MCCULLOCH V. MARYLAND.  FN3  THE SEDUCTIVE
CLICHE THAT THE POWER TO TAX INVOLVES THE POWER TO DESTROY WAS FUSED
WITH ANOTHER ASSUMPTION, LIKEWISE NOT TO BE FOUND IN THE CONSTITUTION
ITSELF, NAMELY THE DOCTRINE THAT THE IMMUNITIES ARE CORRELATIVE -
BECAUSE THE EXISTENCE OF THE NATIONAL GOVERNMENT IMPLIES IMMUNITIES
FROM STATE TAXATION, THE EXISTENCE OF STATE GOVERNMENTS IMPLIES
EQUIVALENT IMMUNITIES FROM FEDERAL TAXATION.  WHEN THIS DOCTRINE WAS
FIRST APPLIED MR. JUSTICE BRADLEY REGISTERED A POWERFUL DISSENT, FN4
THE FORCE OF WHICH GATHERED RATHER THAN LOST STRENGTH WITH TIME. 
COLLECTOR V. DAY, 11 WALL.  113, 128. 

ALL THESE DOCTRINES OF INTERGOVERNMENTAL IMMUNITY HAVE UNTIL RECENTLY
BEEN MOVING IN THE REALM OF WHAT LINCOLN CALLED "PERNICIOUS
ABSTRACTIONS."  THE WEB OF UNREALITY SPUN FROM MARSHALL'S FAMOUS DICTUM
WAS BRUSHED AWAY BY ONE STROKE OF MR. JUSTICE HOLMES'S PEN:  "THE POWER
TO TAX IS NOT THE POWER TO DESTROY WHILE THIS COURT SITS."  PANHANDLE
OIL CO. V. MISSISSIPPI, 277 U.S. 218, 223(DISSENT).  FAILURE TO EXEMPT
PUBLIC FUNCTIONARIES FROM THE UNIVERSAL DUTIES OF CITIZENSHIP TO PAY
FOR THE COSTS OF GOVERNMENT WAS HYPOTHETICALLY TRANSMUTED INTO HOSTILE
ACTION OF ONE GOVERNMENT AGAINST THE OTHER.  A SUCCESSION OF DECISIONS
THEREBY WITHDREW FROM THE TAXING POWER OF THE STATES AND NATION A VERY
CONSIDERABLE RANGE OF WEALTH WITHOUT REGARD TO THE ACTUAL WORKINGS OF
OUR FEDERALISM,  FN5  AND THIS, TOO, WHEN THE FINANCIAL NEEDS OF ALL
GOVERNMENTS BEGAN STEADILY TO MOUNT.  THESE DECISIONS HAVE ENCOUNTERED
INCREASING DISSENT.  FN6  IN VIEW OF THE POWERFUL PULL OF OUR DECISIONS
UPON THE COURTS CHARGED WITH MAINTAINING THE CONSTITUTIONAL EQUILIBRIUM
OF THE TWO OTHER GREAT ENGLISH FEDERALISMS, THE CANADIAN AND THE
AUSTRALIAN COURTS WERE AT FIRST INCLINED TO FOLLOW THE EARLIER
DOCTRINES OF THIS COURT REGARDING INTERGOVERNMENTAL IMMUNITY.  FN7
BOTH THE SUPREME COURT OF CANADA AND THE HIGH COURT OF AUSTRALIA ON
FULLER CONSIDERATION - AND FOR PRESENT PURPOSES THE BRITISH NORTH
AMERICA ACT, 30 & 31 VICT., C. 3, AND THE COMMONWEALTH OF AUSTRALIA
CONSTITUTION ACT, 63 & 64 VICT., C. 12, RAISE THE SAME LEGAL ISSUES AS
DOES OUR CONSTITUTION  FN8 - HAVE COMPLETELY REJECTED THE DOCTRINE OF
INTERGOVERNMENTAL IMMUNITY.  FN9 IN THIS COURT DISSENTS HAVE GRADUALLY
BECOME MAJORITY OPINIONS, AND EVEN BEFORE THE PRESENT DECISION THE
RATIONALE OF THE DOCTRINE HAD BEEN UNDERMINED.  FN10 

THE JUDICIAL HISTORY OF THIS DOCTRINE OF IMMUNITY IS A STRIKING
ILLUSTRATION OF AN OCCASIONAL TENDENCY TO ENCRUST UNWARRANTED
INTERPRETATIONS UPON THE CONSTITUTION AND THEREAFTER TO CONSIDER MERELY
WHAT HAS BEEN JUDICIALLY SAID ABOUT THE CONSTITUTION, RATHER THAN TO BE
PRIMARILY CONTROLLED BY A FAIR CONCEPTION OF THE CONSTITUTION. 
JUDICIAL EXEGESIS IS UNAVOIDABLE WITH REFERENCE TO AN ORGANIC ACT LIKE
OUR CONSTITUTION, DRAWN IN MANY PARTICULARS WITH PURPOSED VAGUENESS SO
AS TO LEAVE ROOM FOR THE UNFOLDING FUTURE.  BUT THE ULTIMATE TOUCHSTONE
OF CONSTITUTIONALITY IS THE CONSTITUTION ITSELF AND NOT WHAT WE HAVE
SAID ABOUT IT.  FN11  NEITHER DOBBINS V. COMMISSIONERS, 16 PET. 435,
AND ITS OFFSPRING, NOR COLLECTOR V. DAY, SUPRA, AND ITS, CAN STAND
APPEAL TO THE CONSTITUTION AND ITS HISTORIC PURPOSES.  SINCE BOTH ARE
THE STARTING POINTS OF AN INTERDEPENDENT DOCTRINE, BOTH SHOULD BE, AS I
ASSUME THEM TO BE, OVERRULED THIS DAY.  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. 

FN1  THE STATE OF THE DOCKET OF THE HIGH COURT OF AUSTRALIA AND THAT
OF THE SUPREME COURT OF CANADA STILL PERMITS THEM TO CONTINUE THE
CLASSIC PRACTICE OF SERIATIM OPINIONS. 

FN2  ARTICLE 1, SEC. 10, U.S. CONSTITUTION. 

FN3  WESTON V. CITY COUNCIL OF CHARLESTON, 2 PET. 449, 472-73. 

FN4  "I DISSENT FROM THE OPINION OF THE COURT IN THIS CASE, BECAUSE,
IT SEEMS TO ME THAT THE GENERAL GOVERNMENT HAS THE SAME POWER OF TAXING
THE INCOME OF OFFICERS OF THE STATE GOVERNMENTS AS IT HAS OF TAXING
THAT OF ITS OWN OFFICERS.  ...  IN MY JUDGMENT, THE LIMITATION OF THE
POWER OF TAXATION IN THE GENERAL GOVERNMENT, WHICH THE PRESENT DECISION
ESTABLISHES, WILL BE FOUND VERY DIFFICULT OF CONTROL.  WHERE ARE WE TO
STOP IN ENUMERATING THE FUNCTIONS OF THE STATE GOVERNMENTS WHICH WILL
BE INTERFERED WITH BY FEDERAL TAXATION?  ...  HOW CAN WE NOW TELL WHAT
THE EFFECT OF THIS DECISION WILL BE?  I CANNOT BUT REGARD IT AS FOUNDED
ON A FALLACY, AND THAT IT WILL LEAD TO MISCHIEVOUS CONSEQUENCES."  (11
WALL.  113, 128-29.) 

FN5  E.G., GILLESPIE V. OKLAHOMA, 257 U.S. 501; PANHANDLE OIL CO. V.
MISSISSIPPI, 277 U.S. 218; MACALLEN CO. V. MASSACHUSETTS, 279 U.S. 620;
INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570; BURNET V. CORONADO
OIL & GAS CO., 285 U.S. 393; N.Y. EX REL. ROGERS V. GRAVES, 299 U.S.
401; BRUSH V. COMMISSIONER, 300 U.S. 352. 

FN6  E.G., MR. JUSTICE BRANDEIS, DISSENTING, IN JAYBIRD MINING CO. V.
WEIR, 271 U.S. 609, 615; MR. JUSTICE HOLMES, DISSENTING, IN PANHANDLE
OIL CO. V. MISSISSIPPI, 277 U.S. 218, 222; MR. JUSTICE STONE,
DISSENTING, IN INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570,
580; MR. JUSTICE ROBERTS, DISSENTING, IN BRUSH V. COMMISSIONER, 300
U.S. 352, 374.  SEE, ALSO, MR. JUSTICE BLACK, CONCURRING, IN HELVERING
V. GERHARDT, 304 U.S. 405, 424. 

FN7  BANK OF TORONTO V. LAMBE, 12 APP. CAS. 575; D'EMDEN V. PEDDER, 1
C.L.R. 91. 

FN8  ESPECIALLY IS THIS TRUE OF THE AUSTRALIAN CONSTITUTION.  ONE OF
ITS FRAMERS, WHO AFTERWARDS BECAME ONE OF THE MOST DISTINGUISHED OF
AUSTRALIAN JUDGES, MR. JUSTICE HIGGINS, CHARACTERIZED IT AS HAVING
FOLLOWED OUR CONSTITUTION WITH "PEDANTIC IMITATION."  AUSTRALASIAN
TEMPERANCE & G.M. LIFE ASSURANCE SOCIETY V. HOWE, 31 C.L.R. 290, 330. 

FN9  ABBOTT V. CITY OF ST. JOHN, 40 CAN.  SUP.  CT. 597; CARON V. THE
KING, (1924) A.C. 999; AMALGAMATED SOCIETY OF ENGINEERS V. ADELAIDE
STEAMSHIP CO., 28 C.L.R. 129; WEST V. COMMISSIONER OF TAXATION, 56
C.L.R. 657. 

FN10  E.G., JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134; HELVERING
V. MOUNTAIN PRODUCERS CORP., 303 U.S. 376; HELVERING V. GERHARDT, 304
U.S. 405. 

FN11 COMPARE TANEY, C.J., IN PASSENGER CASES, 7 HOW.  283, 470:  "I
...  AM QUITE WILLING THAT IT BE REGARDED AS THE LAW OF THIS COURT,
THAT ITS OPINION UPON THE CONSTRUCTION OF THE CONSTITUTION IS ALWAYS
OPEN TO DISCUSSION WHEN IT IS SUPPOSED TO HAVE BEEN FOUNDED IN ERROR,
AND THAT ITS JUDICIAL AUTHORITY SHOULD HEREAFTER DEPEND ALTOGETHER ON
THE FORCE OF THE REASONING BY WHICH IT IS SUPPORTED." 

MR. JUSTICE BUTLER, DISSENTING: 

MR. JUSTICE MCREYNOLDS AND I ARE OF OPINION THAT THE HOME OWNERS'
LOAN CORPORATION, BEING AN INSTRUMENTALITY OF THE UNITED STATES
HERETOFORE DEEMED IMMUNE FROM STATE TAXATION, "IT NECESSARILY RESULTS,"
AS HELD IN NEW YORK EX REL. ROGERS V. GRAVES (1937) 299 U.S. 401, "THAT
FIXED SALARIES AND COMPENSATION PAID TO ITS OFFICERS AND EMPLOYEES IN
THEIR CAPACITY AS SUCH ARE LIKEWISE IMMUNE"; AND THAT THE JUDGMENT OF
THE STATE COURT, UNQUESTIONABLY REQUIRED BY THAT DECISION, SHOULD BE
AFFIRMED. 

FROM THE DECISION JUST ANNOUNCED, IT IS CLEAR THAT THE COURT HAS
OVERRULED DOBBINS V. COMMISSIONERS OF ERIE COUNTY (1842) 16 PET. 435;
COLLECTOR V. DAY (1871) 11 WALL.  113; NEW YORK EX REL. ROGERS V.
GRAVES, SUPRA, AND BRUSH V. COMMISSIONER (1937) 300 U.S. 352.  THUS NOW
IT APPEARS THAT THE UNITED STATES HAS ALWAYS HAD POWER TO TAX SALARIES
OF STATE OFFICERS AND EMPLOYEES AND THAT SIMILARLY FREE HAVE BEEN THE
STATES TO TAX SALARIES OF OFFICERS AND EMPLOYEES OF THE UNITED STATES. 
THE COMPENSATION FOR PAST AS WELL AS FOR FUTURE SERVICE TO BE TAXED AND
THE RATES PRESCRIBED IN THE EXERTION OF THE NEWLY DISCLOSED POWER
DEPEND ON LEGISLATIVE DISCRETION NOT SUBJECT TO JUDICIAL REVISION. 
FUTILE INDEED ARE THE VAGUE INTIMATIONS THAT THIS COURT MAY PROTECT
AGAINST EXCESSIVE OR DESTRUCTIVE TAXATION.  WHERE THE POWER TO TAX
EXISTS, LEGISLATURES MAY EXERT IT TO DESTROY, TO DISCOURAGE, TO PROTECT
OR EXCLUSIVELY FOR THE PURPOSE OF RAISING REVENUE.  SEE E.G. VEAZIE
BANK V. FENNO, 8 WALL.  533, 548; MCCRAY V. UNITED STATES, 195 U.S. 27,
53 ET SEQ.; MAGNANO CO. V. HAMILTON, 292 U.S. 40, 44 ET SEQ.;
CINCINNATI SOAP CO. V. UNITED STATES, 301 U.S. 308. 

APPRAISAL OF LURKING OR APPARENT IMPLICATIONS OF THE COURT'S OPINION
CAN SERVE NO USEFUL END FOR, SHOULD OCCASION ARISE, THEY MAY BE IGNORED
OR GIVEN DIRECTION DIFFERING FROM THAT AT FIRST SEEMINGLY INTENDED. 
BUT SAFELY IT MAY BE SAID THAT PRESENTLY MARKED FOR DESTRUCTION IS THE
DOCTRINE OF RECIPROCAL IMMUNITY THAT BY RECENT DECISIONS HERE HAS BEEN
SO MUCH IMPAIRED. 
..END :



















PACIFIC INS. CO. V. COMM'N, 306 U.S. 493 


NO. 158.  ARGUED DECEMBER 12, 1938.  - DECIDED MARCH 27, 1939.  - 10
CAL.2D 567 - 75 P.2D 1058, AFFIRMED. 


1.  A STATE IS NOT BOUND, APART FROM THE COMPULSION OF THE FULL FAITH
AND CREDIT CLAUSE, TO ENFORCE THE LAWS OF ANOTHER STATE; NOR BY ITS OWN
STATUTE MAY IT DETERMINE THE CHOICE OF LAW TO BE APPLIED IN THE OTHER. 
P. 500. 

2.  AN EMPLOYEE OF A MASSACHUSETTS CORPORATION, RESIDENT IN
MASSACHUSETTS AND REGULARLY EMPLOYED IN THAT STATE UNDER A CONTRACT OF
EMPLOYMENT ENTERED INTO THERE, WAS INJURED IN THE COURSE OF HIS
EMPLOYMENT WHILE TEMPORARILY IN CALIFORNIA.  THE MASSACHUSETTS
WORKMEN'S COMPENSATION STATUTE PURPORTED TO GIVE AN EXCLUSIVE REMEDY,
EVEN THOUGH THE INJURY WAS SUFFERED OUTSIDE OF THE STATE.  HELD, THE
COURTS OF CALIFORNIA WERE NOT BOUND BY THE FULL FAITH AND CREDIT CLAUSE
OF THE FEDERAL CONSTITUTION TO APPLY, CONTRARY TO THE POLICY OF THEIR
STATE, THE MASSACHUSETTS STATUTE, OR TO RECOGNIZE IT AS A DEFENSE TO A
CLAIM OF THE EMPLOYEE UNDER THE WORKMEN'S COMPENSATION STATUTE OF
CALIFORNIA, WHICH, BECAUSE THE INJURY WAS SUFFERED IN THE COURSE OF
EMPLOYMENT THERE, ALSO PURPORTED TO BE APPLICABLE AND TO GIVE AN
EXCLUSIVE REMEDY.  BRADFORD ELECTRIC LIGHT CO. V. CLAPPER, 286 U.S.
145, DISTINGUISHED.  P. 501. 

THAT THE APPLICATION OF THE MASSACHUSETTS STATUTE IN THIS CASE WOULD
BE OBNOXIOUS TO THE POLICY OF CALIFORNIA SUFFICIENTLY APPEARS:  NOT
ONLY DOES THE CALIFORNIA STATUTE CONFLICT WITH THE MASSACHUSETTS
STATUTE IN RESPECT OF ITS APPLICATION TO EMPLOYEES INJURED IN
CALIFORNIA, BUT IT ALSO EXPRESSLY PROVIDES THAT "NO CONTRACT, RULE OR
REGULATION SHALL EXEMPT THE EMPLOYER FROM LIABILITY FOR THE
COMPENSATION FIXED BY THIS ACT"; AND FURTHER, THE SUPREME COURT OF
CALIFORNIA IN ITS OPINION IN THIS CASE HAS DECLARED IT TO BE THE POLICY
OF THE STATE, AS EXPRESSED IN ITS CONSTITUTION AND COMPENSATION ACT, TO
APPLY ITS OWN PROVISIONS FOR COMPENSATION, TO THE EXCLUSION OF ALL
OTHERS, AND HOLDS THAT "IT WOULD BE OBNOXIOUS TO THAT POLICY TO DENY
PERSONS WHO HAVE BEEN INJURED IN THIS STATE THE RIGHT TO APPLY FOR
COMPENSATION WHEN TO DO SO MIGHT REQUIRE PHYSICIANS AND HOSPITALS TO GO
TO ANOTHER STATE TO COLLECT CHARGES FOR MEDICAL CARE AND TREATMENT
GIVEN TO SUCH PERSONS." 

3.  THE NATURE OF THE FEDERAL UNION OF STATES, TO WHICH ARE RESERVED
SOME OF THE ATTRIBUTES OF SOVEREIGNTY, PRECLUDES RESORT TO THE FULL
FAITH AND CREDIT CLAUSE AS A MEANS FOR COMPELLING A STATE TO SUBSTITUTE
THE STATUTES OF OTHER STATES FOR ITS OWN STATUTES DEALING WITH A
SUBJECT MATTER CONCERNING WHICH IT IS COMPETENT TO LEGISLATE.  P. 501. 

4.  THE FULL FAITH AND CREDIT CLAUSE DOES NOT REQUIRE A STATE TO
SUBSTITUTE FOR ITS OWN STATUTE, APPLICABLE TO PERSONS AND EVENTS WITHIN
IT, THE CONFLICTING STATUTE OF ANOTHER STATE, EVEN THOUGH THAT STATUTE
IS OF CONTROLLING FORCE IN THE COURTS OF THE STATE OF ITS ENACTMENT
WITH RESPECT TO THE SAME PERSONS AND EVENTS, - AT LEAST IN THE ABSENCE
OF ACTION BY CONGRESS PRESCRIBING THE EXTRA-STATE EFFECT TO BE GIVEN
STATE STATUTES.  P. 502. 

5.  THIS COURT MUST DETERMINE FOR ITSELF HOW FAR THE FULL FAITH AND
CREDIT CLAUSE COMPELS THE QUALIFICATION OR DENIAL OF RIGHTS ASSERTED
UNDER THE LAWS OF ONE STATE, THAT OF THE FORUM, BY THE STATUTE OF
ANOTHER STATE.  P. 502. 

PACIFIC EMPLOYERS INSURANCE CO. V. INDUSTRIAL ACCIDENT COMM'N ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

CERTIORARI, 305 U.S. 563, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DENYING A PETITION OF THE INSURER OF AN EMPLOYER TO SET ASIDE AN AWARD
OF COMPENSATION MADE TO AN EMPLOYEE BY THE STATE COMMISSION. 

THE AWARD UNDER THE CALIFORNIA WORKMEN'S COMPENSATION ACT AND THE
REFUSAL TO RECOGNIZE THE MASSACHUSETTS STATUTE AS A DEFENSE IN THE
CALIFORNIA PROCEEDINGS, IS CONTRARY TO THE FULL FAITH AND CREDIT
CLAUSE. 

THE COURTS OF ONE STATE MUST GIVE FULL FAITH AND CREDIT TO A STATUTE
OF A SECOND STATE WHICH IS SET UP AS A DEFENSE TO AN ACTION BROUGHT IN
THE FIRST STATE.  BRADFORD ELECTRIC LIGHT CO. V. CLAPPER, 286 U.S. 145;
MODERN WOODMEN V. MIXER, 267 U.S. 544; AETNA LIFE INS. CO. V. DUNKEN,
266 U.S. 389; SUPREME COUNCIL V. GREEN, 237 U.S. 531; WESTERN UNION
TELEGRAPH CO. V. BROWN, 234 U.S. 542; ATCHISON, T. & S.F. RY. CO. V.
SOWERS, 213 U.S. 55.  THE BRADFORD LIGHT CASE CONTROLS THE PRESENT
CASE. 

WHERE THE STATUTE OF A FOREIGN STATE CONSTITUTES A SUBSTANTIVE
DEFENSE TO AN ACTION, A CONFLICT BETWEEN SUCH STATUTE AND THE STATUTE
OF THE FORUM CAN NOT BE RESOLVED BY WEIGHING THE GOVERNMENTAL INTERESTS
OF EACH JURISDICTION.  ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT
COMM'N, 294 U.S. 532. 

THERE IS NO ADEQUATE BASIS FOR THE CONCLUSION OF THE CALIFORNIA COURT
THAT TO DENY RECOVERY WOULD BE OBNOXIOUS TO THE PUBLIC POLICY OF THAT
STATE. 

THE CALIFORNIA COURT ERRED IN STATING THAT BECAUSE OF PUBLIC POLICY
IT HAD A GREATER GOVERNMENTAL INTEREST THAN MASSACHUSETTS. 

THE IMPOSITION OF A LIEN FOR MEDICAL SERVICES PRESUPPOSES THE RIGHT
AND EXISTENCE OF JURISDICTION TO MAKE AN AWARD TO THE EMPLOYEE.  IT IS
ILLOGICAL TO SAY THAT THE JURISDICTION OF A TRIBUNAL, IN ANY CASE, CAN
BE DETERMINED BY A FACT WHICH CAN HAVE NO EXISTENCE UNTIL AFTER THE
DETERMINATION OR CREATION OF THE JURISDICTION OF SAID TRIBUNAL. 

THE CALIFORNIA COURT ALSO HAS IGNORED THE FACT THAT THE PHYSICIANS
AND HOSPITALS WHO RENDERED SERVICES TO THE EMPLOYEE IN THAT STATE WOULD
NOT BE WITHOUT REMEDY IN CALIFORNIA IF THE COMMISSION WERE HELD TO HAVE
NO JURISDICTION TO MAKE AN AWARD HEREIN.  THEY WOULD HAVE A CAUSE OF
ACTION BASED IN CONTRACT WHICH COULD BE PROSECUTED IN CALIFORNIA
COURTS.  IT WOULD BE UNNECESSARY FOR THEM TO GO TO A FOREIGN
JURISDICTION FOR RECOVERY. 

MOREOVER, HAD THE COMPENSATION CLAIM BEEN BROUGHT IN MASSACHUSETTS,
IT WOULD HAVE BEEN VERY LITTLE INCONVENIENCE FOR THE HOSPITALS AND
PHYSICIANS TO PRESENT THEIR CLAIMS IN THAT JURISDICTION. 

THE DECISION OF THE CALIFORNIA COURT IS NOT SOUND ECONOMICALLY.  IT
IS ECONOMICALLY IMPORTANT THAT AN EMPLOYER BE ABLE TO LOOK TO THE LAW
OF THE STATE OF HIS RESIDENCE, WHERE HIS BUSINESS IS PRINCIPALLY
CONDUCTED, WHERE THE CONTRACT OF EMPLOYMENT IS MADE, AND WHERE IT IS TO
BE PRINCIPALLY PERFORMED, AND DO SO WITH THE ASSURANCE THAT SUCH LAW
WILL BE GIVEN FULL FAITH AND CREDIT BY OTHER STATES.  OTHERWISE, HE
MUST CARRY WORKMEN'S COMPENSATION INSURANCE IN EVERY STATE IN WHICH, OR
THROUGH WHICH, ANY EMPLOYEE MAY TRAVEL.  THIS WOULD MATERIALLY INCREASE
THE AMOUNT OF INSURANCE PREMIUMS SUCH AN EMPLOYER WOULD HAVE TO PAY. 
AN INEVITABLE INCREASE IN PRODUCERS' AND CONSUMERS' COSTS WOULD
RESULT.  THESE CONSIDERATIONS GIVE GREAT WEIGHT TO THE INTEREST OF
MASSACHUSETTS IN THE PRESENT CASE.  23 CAL. LAW REV. 381, 389; 46 HARV.
L. REV. 291, 297. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE FULL FAITH AND CREDIT WHICH THE
CONSTITUTION REQUIRES TO BE GIVEN TO A MASSACHUSETTS WORKMEN'S
COMPENSATION STATUTE PRECLUDES CALIFORNIA FROM APPLYING ITS OWN
WORKMEN'S COMPENSATION ACT IN THE CASE OF AN INJURY SUFFERED BY A
MASSACHUSETTS EMPLOYEE OF A MASSACHUSETTS EMPLOYER WHILE IN CALIFORNIA
IN THE COURSE OF HIS EMPLOYMENT. 

PETITIONER, AN INSURANCE CARRIER, UNDER THE CALIFORNIA WORKMEN'S
COMPENSATION, INSURANCE AND SAFETY ACT, FOR THE PACIFIC COAST BRANCH OF
THE EMPLOYER, DEWEY & ALMY CHEMICAL COMPANY, A MASSACHUSETTS
CORPORATION, FILED ITS PETITION IN THE CALIFORNIA DISTRICT COURT OF
APPEAL TO SET ASIDE AN AWARD OF COMPENSATION TO AN EMPLOYEE BY THE
CALIFORNIA INDUSTRIAL ACCIDENT COMMISSION.  THE GROUNDS OF THE PETITION
WERE, AMONG OTHERS, THAT THE EMPLOYEE, BECAUSE HE WAS REGULARLY
EMPLOYED AT THE HEAD OFFICE OF THE CORPORATION IN MASSACHUSETTS AND WAS
TEMPORARILY IN CALIFORNIA ON THE BUSINESS OF THE EMPLOYER WHEN INJURED
THERE, WAS SUBJECT TO THE WORKMEN'S COMPENSATION LAW OF MASSACHUSETTS,
AND THAT THE CALIFORNIA COMMISSION, IN APPLYING THE CALIFORNIA ACT AND
IN REFUSING TO RECOGNIZE THE MASSACHUSETTS STATUTE AS A DEFENSE, HAD
DENIED TO THE LATTER THE FULL FAITH AND CREDIT TO WHICH IT WAS ENTITLED
UNDER ARTICLE IV, SEC. 1 OF THE CONSTITUTION.  THE ORDER OF THE
DISTRICT COURT OF APPEAL DENYING THE PETITION WAS AFFIRMED BY THE
SUPREME COURT OF CALIFORNIA.  10 CAL.2D 567; 75 P.2D 1058.  WE GRANTED
CERTIORARI, 305 U.S. 563, THE QUESTION PRESENTED BEING OF PUBLIC
IMPORTANCE. 

THE INJURED EMPLOYEE, A RESIDENT OF MASSACHUSETTS, WAS REGULARLY
EMPLOYED THERE UNDER WRITTEN CONTRACT IN THE LABORATORIES OF THE DEWEY
& ALMY CHEMICAL COMPANY AS A CHEMICAL ENGINEER AND RESEARCH CHEMIST. 
IN SEPTEMBER, 1935, IN THE USUAL COURSE OF HIS EMPLOYMENT HE WAS SENT
BY HIS EMPLOYER TO ITS BRANCH FACTORY IN CALIFORNIA, TO ACT TEMPORARILY
AS TECHNICAL ADVISER IN THE EFFORT TO IMPROVE THE QUALITY OF ONE OF THE
EMPLOYER'S PRODUCTS MANUFACTURED THERE.  UPON COMPLETION OF THE
ASSIGNMENT HE EXPECTED TO RETURN TO THE EMPLOYER'S MASSACHUSETTS PLACE
OF BUSINESS, AND WHILE IN CALIFORNIA HE REMAINED SUBJECT TO THE GENERAL
DIRECTION AND CONTROL OF THE EMPLOYER'S MASSACHUSETTS OFFICE, FROM
WHICH HIS COMPENSATION WAS PAID. 

HE INSTITUTED THE PRESENT PROCEEDING BEFORE THE CALIFORNIA COMMISSION
FOR THE AWARD OF COMPENSATION UNDER THE CALIFORNIA ACT FOR INJURIES
RECEIVED IN THE COURSE OF HIS EMPLOYMENT IN THAT STATE, NAMING
PETITIONER AS INSURANCE CARRIER UNDER THAT ACT; THE HARTFORD ACCIDENT &
INDEMNITY COMPANY, AS INSURER UNDER THE MASSACHUSETTS ACT, WAS MADE A
PARTY.  THE CALIFORNIA COMMISSION DIRECTED PETITIONER TO PAY THE
COMPENSATION PRESCRIBED BY THE CALIFORNIA ACT, INCLUDING THE AMOUNTS OF
LIEN CLAIMS FILED IN THE PROCEEDING FOR MEDICAL, HOSPITAL AND NURSING
SERVICES AND CERTAIN FURTHER AMOUNTS NECESSARY FOR SUCH SERVICES IN THE
FUTURE. 

BY THE APPLICABLE MASSACHUSETTS STATUTE, SECS. 24, 26, C. 152, MASS.
GEN. LAWS (TER.  ED. 1932), AN EMPLOYEE OF A PERSON INSURED UNDER THE
ACT, AS WAS THE EMPLOYER IN THIS CASE, IS DEEMED TO WAIVE HIS "RIGHT OF
ACTION AT COMMON LAW OR UNDER THE LAW OF ANY OTHER JURISDICTION" TO
RECOVER FOR PERSONAL INJURIES UNLESS HE SHALL HAVE GIVEN APPROPRIATE
NOTICE TO THE EMPLOYER IN WRITING THAT HE ELECTS TO RETAIN SUCH
RIGHTS.  SECTION 26 DIRECTS THAT WITHOUT THE NOTICE HIS RIGHT TO
RECOVER BE RESTRICTED TO THE COMPENSATION PROVIDED BY THE ACT FOR
INJURIES RECEIVED IN THE COURSE OF HIS EMPLOYMENT, "WHETHER WITHIN OR
WITHOUT THE COMMONWEALTH."  SEE MCLAUGHLIN'S CASE, 274 MASS. 217; 174
N.E. 338; MIGUES' CASE, 281 MASS. 373; 183 N.E. 847. 

ARTICLE XX, SEC. 21 OF THE CALIFORNIA CONSTITUTION VESTS THE
LEGISLATURE WITH PLENARY POWER "TO CREATE AND ENFORCE A COMPLETE SYSTEM
OF WORKMEN'S COMPENSATION," INCLUDING "ADEQUATE PROVISIONS FOR THE
COMFORT, HEALTH AND SAFETY AND GENERAL WELFARE" OF EMPLOYEES INJURED IN
THE COURSE OF THEIR EMPLOYMENT, AND THEIR DEPENDENTS, AND TO MAKE "FULL
PROVISION FOR SUCH MEDICAL, SURGICAL, HOSPITAL AND OTHER REMEDIAL
TREATMENT AS IS REQUISITE TO CURE AND RELIEVE FROM THE EFFECTS OF SUCH
INJURY."  SECTIONS 6, 9 AND 29 OF THE CALIFORNIA WORKMEN'S
COMPENSATION, INSURANCE AND SAFETY ACT, CAL. GEN. LAWS (DEERING 1931)
ACT 4749, PROVIDE FOR COMPENSATION FROM INSURANCE PROCURED BY THE
EMPLOYER, IN PRESCRIBED AMOUNTS, FOR INJURIES RECEIVED BY HIS EMPLOYEES
IN THE COURSE OF THEIR EMPLOYMENT WITHOUT REGARD TO NEGLIGENCE AND FOR
THE COSTS OF MEDICAL ATTENDANCE OCCASIONED BY THE INJURIES.  SECTION
27(A) PROVIDES THAT "NO CONTRACT, RULE, OR REGULATION SHALL EXEMPT THE
EMPLOYER FROM LIABILITY FOR THE COMPENSATION FIXED BY THIS ACT."  AND
SEC. 58 PROVIDES THAT THE COMMISSION SHALL HAVE JURISDICTION OVER
CLAIMS FOR COMPENSATION FOR INJURIES SUFFERED OUTSIDE THE STATE WHEN
THE EMPLOYEE'S CONTRACT OF HIRE WAS ENTERED INTO WITHIN THE STATE.  SEE
QUONG HAM WAH CO. V. INDUSTRIAL ACCIDENT COMM'N, 184 CAL. 26; 192 P.
1021.  BOTH STATUTES ARE COMPENSATION ACTS, SUBSTITUTED FOR THE COMMON
LAW REMEDY FOR NEGLIGENCE.  THE CALIFORNIA ACT IS COMPULSORY.  SEC.
6(A).  THE MASSACHUSETTS ACT IS SIMILARLY EFFECTIVE UNLESS THE EMPLOYEE
GIVES NOTICE NOT TO BE BOUND BY IT, WHICH IN THIS CASE HE DID NOT DO.
SEC. 24. 

PETITIONER, WHICH AS INSURANCE CARRIER HAS ASSUMED THE LIABILITY OF
THE EMPLOYER UNDER THE CALIFORNIA ACT, RELIES ON THE PROVISIONS OF THE
MASSACHUSETTS ACT THAT THE COMPENSATION SHALL BE THAT PRESCRIBED FOR
INJURIES SUFFERED IN THE COURSE OF THE EMPLOYMENT, WHETHER WITHIN OR
WITHOUT THE STATE.  IT INSISTS THAT SINCE THE CONTRACT OF EMPLOYMENT
WAS ENTERED INTO IN MASSACHUSETTS AND THE EMPLOYEE CONSENTED TO BE
BOUND BY THE MASSACHUSETTS ACT, THAT, AND NOT THE CALIFORNIA STATUTE,
FIXES THE EMPLOYEE'S RIGHT TO COMPENSATION WHETHER THE INJURIES WERE
RECEIVED WITHIN OR WITHOUT THE STATE, AND THAT THE MASSACHUSETTS
STATUTE IS CONSTITUTIONALLY ENTITLED TO FULL FAITH AND CREDIT IN THE
COURTS OF CALIFORNIA. 

WE MAY ASSUME THAT THESE PROVISIONS ARE CONTROLLING UPON THE PARTIES
IN MASSACHUSETTS, AND THAT SINCE THEY ARE APPLICABLE TO A MASSACHUSETTS
CONTRACT OF EMPLOYMENT BETWEEN A MASSACHUSETTS EMPLOYER AND EMPLOYEE,
THEY DO NOT INFRINGE DUE PROCESS.  BRADFORD ELECTRIC LIGHT CO. V.
CLAPPER, 286 U.S. 145, 156, ET SEQ. SIMILARLY THE CONSTITUTIONALITY OF
THE PROVISIONS OF THE CALIFORNIA STATUTE AWARDING COMPENSATION FOR
INJURIES TO AN EMPLOYEE OCCURRING WITHIN ITS BORDERS, AND FOR INJURIES
AS WELL OCCURRING ELSEWHERE, WHEN THE CONTRACT OF EMPLOYMENT WAS
ENTERED INTO WITHIN THE STATE, IS NOT OPEN TO QUESTION.  ALASKA PACKERS
ASSN. V. INDUSTRIAL ACCIDENT COMM'N, 294 U.S. 532; NEW YORK CENTRAL R.
CO. V. WHITE, 243 U.S. 188; MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S.
219. 

WHILE IN THE CIRCUMSTANCES NOW PRESENTED, EITHER STATE, IF ITS SYSTEM
FOR ADMINISTERING WORKMEN'S COMPENSATION PERMITTED, WOULD BE FREE TO
ADOPT AND ENFORCE THE REMEDY PROVIDED BY THE STATUTE OF THE OTHER, HERE
EACH HAS PROVIDED FOR ITSELF AN EXCLUSIVE REMEDY FOR A LIABILITY WHICH
IT WAS CONSTITUTIONALLY AUTHORIZED TO IMPOSE.  BUT NEITHER IS BOUND,
APART FROM THE COMPULSION OF THE FULL FAITH AND CREDIT CLAUSE, TO
ENFORCE THE LAWS OF THE OTHER, MILWAUKEE COUNTY V. WHITE CO., 296 U.S.
268, 272; AND THE LAW OF NEITHER CAN BY ITS OWN FORCE DETERMINE THE
CHOICE OF LAW TO BE APPLIED IN THE OTHER.  CF. OHIO V. CHATTANOOGA
BOILER & TANK CO., 289 U.S. 439.  PETITIONER, POINTING TO THE CONFLICT
BETWEEN THE PROVISIONS OF THE TWO STATUTES, INSISTS THAT THE FULL FAITH
AND CREDIT CLAUSE REQUIRES RECOGNITION OF THE MASSACHUSETTS STATUTE AS
PROVIDING THE EXCLUSIVE REMEDY AND AS A DEFENSE TO ANY PROCEEDING FOR
THE AWARD OF COMPENSATION UNDER THE CALIFORNIA ACT.  THE SUPREME COURT
OF CALIFORNIA HAS RECOGNIZED THE CONFLICT AND RESOLVED IT BY HOLDING
THAT THE FULL FAITH AND CREDIT CLAUSE DOES NOT DENY TO THE COURTS OF
CALIFORNIA THE RIGHT TO APPLY ITS OWN STATUTE AWARDING COMPENSATION FOR
AN INJURY SUFFERED BY AN EMPLOYEE WITHIN THE STATE. 

TO THE EXTENT THAT CALIFORNIA IS REQUIRED TO GIVE FULL FAITH AND
CREDIT TO THE CONFLICTING MASSACHUSETTS STATUTE IT MUST BE DENIED THE
RIGHT TO APPLY IN ITS OWN COURTS ITS OWN STATUTE, CONSTITUTIONALLY
ENACTED IN PURSUANCE OF ITS POLICY TO PROVIDE COMPENSATION FOR
EMPLOYEES INJURED IN THEIR EMPLOYMENT WITHIN THE STATE.  IT MUST
WITHHOLD THE REMEDY GIVEN BY ITS OWN STATUTE TO ITS RESIDENTS BY WAY OF
COMPENSATION FOR MEDICAL, HOSPITAL AND NURSING SERVICES RENDERED TO THE
INJURED EMPLOYEE, AND IT MUST REMIT HIM TO MASSACHUSETTS TO SECURE THE
ADMINISTRATIVE REMEDY WHICH THAT STATE HAS PROVIDED.  WE CANNOT SAY
THAT THE FULL FAITH AND CREDIT CLAUSE GOES SO FAR. 

WHILE THE PURPOSE OF THAT PROVISION WAS TO PRESERVE RIGHTS ACQUIRED
OR CONFIRMED UNDER THE PUBLIC ACTS AND JUDICIAL PROCEEDINGS OF ONE
STATE BY REQUIRING RECOGNITION OF THEIR VALIDITY IN OTHER STATES, THE
VERY NATURE OF THE FEDERAL UNION OF STATES, TO WHICH ARE RESERVED SOME
OF THE ATTRIBUTES OF SOVEREIGNTY, PRECLUDES RESORT TO THE FULL FAITH
AND CREDIT CLAUSE AS THE MEANS FOR COMPELLING A STATE TO SUBSTITUTE THE
STATUTES OF OTHER STATES FOR ITS OWN STATUTES DEALING WITH A SUBJECT
MATTER CONCERNING WHICH IT IS COMPETENT TO LEGISLATE.  AS WAS POINTED
OUT IN ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N, SUPRA, 547:
"A RIGID AND LITERAL ENFORCEMENT OF THE FULL FAITH AND CREDIT CLAUSE,
WITHOUT REGARD TO THE STATUTE OF THE FORUM, WOULD LEAD TO THE ABSURD
RESULT THAT, WHEREVER THE CONFLICT ARISES, THE STATUTE OF EACH STATE
MUST BE ENFORCED IN THE COURTS OF THE OTHER, BUT CANNOT BE IN ITS
OWN."  AND IN CASES LIKE THE PRESENT IT WOULD CREATE AN IMPASSE WHICH
WOULD OFTEN LEAVE THE EMPLOYEE REMEDILESS.  FULL FAITH AND CREDIT WOULD
DENY TO CALIFORNIA THE RIGHT TO APPLY ITS OWN REMEDY, AND ITS
ADMINISTRATIVE MACHINERY MAY WELL NOT BE ADAPTED TO GIVING THE REMEDY
AFFORDED BY MASSACHUSETTS.  SIMILARLY, THE FULL FAITH AND CREDIT
DEMANDED FOR THE CALIFORNIA ACT WOULD DENY TO MASSACHUSETTS THE RIGHT
TO APPLY ITS OWN REMEDY, AND ITS DEPARTMENT OF INDUSTRIAL ACCIDENTS MAY
WELL BE WITHOUT STATUTORY AUTHORITY TO AFFORD THE REMEDY PROVIDED BY
THE CALIFORNIA STATUTE.    IT HAS OFTEN BEEN RECOGNIZED BY THIS COURT
THAT THERE ARE SOME LIMITATIONS UPON THE EXTENT TO WHICH A STATE MAY BE
REQUIRED BY THE FULL FAITH AND CREDIT CLAUSE TO ENFORCE EVEN THE
JUDGMENT OF ANOTHER STATE IN CONTRAVENTION OF ITS OWN STATUTES OR
POLICY.  SEE WISCONSIN V. PELICAN INSURANCE CO., 127 U.S. 265;
HUNTINGTON V. ATTRILL, 146 U.S. 657; FINNEY V. GUY, 189 U.S. 335;
MILWAUKEE COUNTY V. WHITE CO., SUPRA, 273 ET SEQ.; SEE ALSO CLARKE V.
CLARKE, 178 U.S. 186; OLMSTED V. OLMSTED, 216 U.S. 386; HOOD V.
MCGEHEE, 237 U.S. 611; CF. GASQUET V. FENNER, 247 U.S. 16.  AND IN THE
CASE OF STATUTES, THE EXTRASTATE EFFECT OF WHICH CONGRESS HAS NOT
PRESCRIBED, AS IT MAY UNDER THE CONSTITUTIONAL PROVISION, WE THINK THE
CONCLUSION IS UNAVOIDABLE THAT THE FULL FAITH AND CREDIT CLAUSE DOES
NOT REQUIRE ONE STATE TO SUBSTITUTE FOR ITS OWN STATUTE, APPLICABLE TO
PERSONS AND EVENTS WITHIN IT, THE CONFLICTING STATUTE OF ANOTHER STATE,
EVEN THOUGH THAT STATUTE IS OF CONTROLLING FORCE IN THE COURTS OF THE
STATE OF ITS ENACTMENT WITH RESPECT TO THE SAME PERSONS AND EVENTS. 

THIS COURT MUST DETERMINE FOR ITSELF HOW FAR THE FULL FAITH AND
CREDIT CLAUSE COMPELS THE QUALIFICATION OR DENIAL OF RIGHTS ASSERTED
UNDER THE LAWS OF ONE STATE, THAT OF THE FORUM, BY THE STATUTE OF
ANOTHER STATE.  SEE ALASKA PACKERS ASSN. V. INDUSTRIAL ACCIDENT COMM'N,
SUPRA, 547.  BUT THERE WOULD SEEM TO BE LITTLE ROOM FOR THE EXERCISE OF
THAT FUNCTION WHEN THE STATUTE OF THE FORUM IS THE EXPRESSION OF
DOMESTIC POLICY, IN TERMS DECLARED TO BE EXCLUSIVE IN ITS APPLICATION
TO PERSONS AND EVENTS WITHIN THE STATE.  ALTHOUGH MASSACHUSETTS HAS AN
INTEREST IN SAFEGUARDING THE COMPENSATION OF MASSACHUSETTS EMPLOYEES
WHILE TEMPORARILY ABROAD IN THE COURSE OF THEIR EMPLOYMENT, AND MAY
ADOPT THAT POLICY FOR ITSELF, THAT COULD HARDLY BE THOUGHT TO SUPPORT
AN APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE WHICH WOULD OVERRIDE
THE CONSTITUTIONAL AUTHORITY OF ANOTHER STATE TO LEGISLATE FOR THE
BODILY SAFETY AND ECONOMIC PROTECTION OF EMPLOYEES INJURED WITHIN IT.
FEW MATTERS COULD BE DEEMED MORE APPROPRIATELY THE CONCERN OF THE STATE
IN WHICH THE INJURY OCCURS OR MORE COMPLETELY WITHIN ITS POWER. 
CONSIDERATIONS OF LESS WEIGHT LED TO THE CONCLUSION, IN ALASKA PACKERS
ASSN. V. INDUSTRIAL ACCIDENT COMM'N, SUPRA, THAT THE FULL FAITH AND
CREDIT CLAUSE DID NOT REQUIRE CALIFORNIA TO GIVE EFFECT TO THE ALASKA
COMPENSATION ACT IN PREFERENCE TO ITS OWN.  THERE THIS COURT SUSTAINED
THE AWARD BY CALIFORNIA OF THE COMPENSATION PROVIDED BY ITS OWN STATUTE
FOR EMPLOYEES WHERE THE CONTRACT OF EMPLOYMENT WAS MADE WITHIN THE
STATE, ALTHOUGH THE INJURY OCCURRED IN ALASKA, WHOSE STATUTE ALSO
PROVIDED COMPENSATION FOR THE INJURY.  DECISION WAS RESTED EXPLICITLY
UPON THE GROUNDS THAT THE FULL FAITH AND CREDIT EXACTED FOR THE STATUTE
OF ONE STATE DOES NOT NECESSARILY PRECLUDE ANOTHER STATE FROM ENFORCING
IN ITS OWN COURTS ITS OWN CONFLICTING STATUTE HAVING NO EXTRA
TERRITORIAL OPERATION FORBIDDEN BY THE FOURTEENTH AMENDMENT, AND THAT
NO PERSUASIVE REASON WAS SHOWN FOR DENYING THAT RIGHT. 

BRADFORD ELECTRIC LIGHT CO. V. CLAPPER, SUPRA, ON WHICH PETITIONER
RELIES, FULLY RECOGNIZED THIS LIMITATION ON THE FULL FAITH AND CREDIT
CLAUSE.  IT WAS THERE HELD THAT A FEDERAL COURT IN NEW HAMPSHIRE, IN A
SUIT BROUGHT AGAINST A VERMONT EMPLOYER BY HIS VERMONT EMPLOYEE TO
RECOVER FOR AN INJURY SUFFERED IN THE COURSE OF HIS EMPLOYMENT WHILE
TEMPORARILY IN NEW HAMPSHIRE, WAS BOUND TO APPLY THE VERMONT
COMPENSATION ACT RATHER THAN THE PROVISION OF THE NEW HAMPSHIRE
COMPENSATION ACT WHICH PERMITTED THE EMPLOYEE, AT HIS ELECTION, TO
ENFORCE HIS COMMON LAW REMEDY.  BUT THE COURT WAS CAREFUL TO POINT OUT
THAT THERE WAS NOTHING IN THE NEW HAMPSHIRE STATUTE, THE DECISIONS OF
ITS COURTS, OR IN THE CIRCUMSTANCES OF THE CASE, TO SUGGEST THAT
RELIANCE ON THE PROVISIONS OF THE VERMONT STATUTE, AS A DEFENSE TO THE
NEW HAMPSHIRE SUIT, WAS OBNOXIOUS TO THE POLICY OF NEW HAMPSHIRE.  THE
CLAPPER CASE CANNOT BE SAID TO HAVE DECIDED MORE THAN THAT A STATE
STATUTE APPLICABLE TO EMPLOYER AND EMPLOYEE WITHIN THE STATE, WHICH BY
ITS TERMS PROVIDES COMPENSATION FOR THE EMPLOYEE IF HE IS INJURED IN
THE COURSE OF HIS EMPLOYMENT WHILE TEMPORARILY IN ANOTHER STATE, WILL
BE GIVEN FULL FAITH AND CREDIT IN THE LATTER WHEN NOT OBNOXIOUS TO ITS
POLICY.  SEE BRADFORD ELECTRIC LIGHT CO. V. CLAPPER, SUPRA, 161. 

HERE, CALIFORNIA LEGISLATION NOT ONLY CONFLICTS WITH THAT OF
MASSACHUSETTS PROVIDING COMPENSATION FOR THE MASSACHUSETTS EMPLOYEE IF
INJURED WITHIN THE STATE OF CALIFORNIA, BUT IT EXPRESSLY PROVIDES, FOR
THE GUIDANCE OF ITS OWN COMMISSION AND COURTS, THAT "NO CONTRACT, RULE
OR REGULATION SHALL EXEMPT THE EMPLOYER FROM LIABILITY FOR THE
COMPENSATION FIXED BY THIS ACT."  THE SUPREME COURT OF CALIFORNIA HAS
DECLARED IN ITS OPINION IN THIS CASE THAT IT IS THE POLICY OF THE
STATE, AS EXPRESSED IN ITS CONSTITUTION AND COMPENSATION ACT, TO APPLY
ITS OWN PROVISIONS FOR COMPENSATION, TO THE EXCLUSION OF ALL OTHERS,
AND THAT "IT WOULD BE OBNOXIOUS TO THAT POLICY TO DENY PERSONS WHO HAVE
BEEN INJURED IN THIS STATE THE RIGHT TO APPLY FOR COMPENSATION WHEN TO
DO SO MIGHT REQUIRE PHYSICIANS AND HOSPITALS TO GO TO ANOTHER STATE TO
COLLECT CHARGES FOR MEDICAL CARE AND TREATMENT GIVEN TO SUCH PERSONS." 

FULL FAITH AND CREDIT DOES NOT HERE ENABLE ONE STATE TO LEGISLATE FOR
THE OTHER OR TO PROJECT ITS LAWS ACROSS STATE LINES SO AS TO PRECLUDE
THE OTHER FROM PRESCRIBING FOR ITSELF THE LEGAL CONSEQUENCES OF ACTS
WITHIN IT.  AFFIRMED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :
























BONET V. YABUCOA SUGAR CO., 306 U.S. 505 


NO. 498.  ARGUED MARCH 7, 1939.  - DECIDED MARCH 27, 1939.  - 98 F.2D
398, REVERSED. 


1.  A SUIT AGAINST THE TREASURER OF PUERTO RICO TO ENFORCE A TAX
REFUND CAN NOT BE MAINTAINED UNLESS AUTHORIZED BY PUERTO RICAN LAW. 
PUERTO RICO CAN NOT BE SUED WITHOUT ITS CONSENT.  P. 506. 

2.  THE LEGISLATURE OF PUERTO RICO IS NOT OBLIGED TO PROVIDE A
JUDICIAL REMEDY FOR TAX REFUNDS.  ID. 

3.  UNDER THE LAWS OF PUERTO RICO, AS CONSTRUED BY THE ISLAND COURTS,
SUIT CAN NOT BE MAINTAINED AGAINST THE TERRITORIAL TREASURER TO COLLECT
FROM HIM AN AMOUNT VOLUNTARILY PAID AS AN INCOME TAX WHICH THE
TREASURER HAS DECLINED TO REFUND.  P. 507. 

4.  THIS COURT FOLLOWS THE CONSTRUCTION OF THE LOCAL TAX LAWS ADOPTED
BY THE COURTS OF PUERTO RICO UNLESS CLEARLY ERRONEOUS.  P. 509. 

BONET, TREASURER OF PUERTO RICO, V. YABUCOA SUGAR CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, POST, P. 622, TO REVIEW A JUDGMENT WHICH REVERSED A
DECISION OF THE SUPREME COURT OF PUERTO RICO DENYING THE JURISDICTION
OF THE LOCAL COURTS OVER AN ACTION AGAINST THE TERRITORIAL TREASURER TO
RECOVER MONEY VOLUNTARILY PAID AS A TAX.  SEE 50 D.P.R. 962; 51 ID.
135. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT SUED THE TREASURER OF PUERTO RICO IN A LOCAL DISTRICT
COURT FOR RECOVERY OF 1927 INCOME TAXES PAID UNDER THE LAWS OF THE
ISLAND.  BY CONSTRUCTION OF THE LOCAL PUERTO RICAN STATUTES PERMITTING
SUITS FOR REFUNDS, THE LOCAL DISTRICT COURT FOUND THAT NO RIGHT HAD
BEEN GRANTED TO SUE AT LAW FOR TAXES VOLUNTARILY PAID.  THE BILL OF
COMPLAINT WAS THEN DISMISSED FOR LACK OF JURISDICTION, BECAUSE IT
DISCLOSED THAT THE TAX IN QUESTION HAD BEEN PAID VOLUNTARILY AND
WITHOUT PROTEST.  THE SUPREME COURT OF PUERTO RICO AFFIRMED, BUT WAS
REVERSED BY THE UNITED STATES CIRCUIT COURT OF APPEALS.  FN1 

AS CONCEDED BY RESPONDENT, THIS SUIT CANNOT BE MAINTAINED UNLESS
AUTHORIZED BY A PUERTO RICAN LAW, BECAUSE PUERTO RICO CANNOT BE SUED
WITHOUT ITS CONSENT.  FN2  IT IS ALSO CONCEDED THAT THE PUERTO RICAN
LEGISLATURE IS NOT OBLIGATED TO PROVIDE A JUDICIAL REMEDY FOR TAX
REFUNDS.  FN3 RESPONDENT'S CONTENTIONS HERE ARE THAT THE GOVERNING
STATUTES OF THE ISLAND DO AUTHORIZE THE PRESENT SUIT "EITHER BY EXPRESS
LANGUAGE OR BY NECESSARY IMPLICATION," AND THAT THE PUERTO RICAN COURTS
ERRONEOUSLY CONSTRUED THE LOCAL STATUTES. 

AUGUST 6, 1925,  FN4 AUTHORIZES THE TREASURER "TO REMIT, REFUND, AND
PAY BACK ALL TAXES ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED,  ...
AND ALL TAXES THAT APPEAR TO BE UNJUSTLY ASSESSED OR EXCESSIVE IN
AMOUNT, OR IN ANY MANNER WRONGFULLY COLLECTED," AND REQUIRES HIM TO
"REPORT TO THE LEGISLATURE OF PORTO RICO AT THE BEGINNING OF EACH
REGULAR SESSION  ...  ALL TRANSACTIONS UNDER THIS SECTION." 

THE COURTS OF PUERTO RICO CONSTRUED SEC. 75 TO MEAN THAT THE
TREASURER'S REFUSAL TO REFUND TAXES NOT PAID UNDER PROTEST IS FINAL;
THAT THE LOCAL STATUTES GRANT THE COURTS NO JURISDICTION TO REVIEW THIS
REFUSAL; AND THAT AFTER THE TREASURER'S REPORT TO THE LEGISLATURE, A
VOLUNTARY TAXPAYER'S COMPLAINT MUST BE ADDRESSED TO THE LEGISLATURE. 
DISAGREEING WITH THIS CONSTRUCTION GIVEN THE STATUTE BY THE COURTS OF
PUERTO RICO, THE CIRCUIT COURT OF APPEALS (ONE JUDGE DISSENTING) FOUND
THAT THE 1925 ACT PLAINLY PROVIDED A RESORT TO THE COURTS, EVEN IN
SUITS TO RECOVER TAXES VOLUNTARILY PAID WITHOUT PROTEST. 

IT IS NECESSARY THAT WE EXAMINE SOME OF THE CONSIDERATIONS WHICH LED
TO THE PUERTO RICAN COURTS' CONSTRUCTION OF SEC. 75 OF THE 1925 ACT. 
FOR ILLUSTRATION, SEC. 66 OF THE PUERTO RICAN INCOME TAX LAW OF 1919
FN5  IMPOSED UPON THE TREASURER THE DUTY OF MAKING TAX REFUNDS (AS IN
SEC. 75 OF THE 1925 ACT), BUT SEC. 66 CONTAINED AN EXPRESS PROVISION
FOR "APPEAL TO THE COURTS" IF A TAXPAYER'S CLAIM WERE DENIED BY THE
TREASURER.  FN6  THE OMISSION OF THIS EXPRESS PROVISION FROM SEC. 75
AND ALL OTHER SECTIONS OF THE 1925 ACT WAS LOGICALLY CONSIDERED BY THE
PUERTO RICAN COURTS TO BE OF SIGNIFICANCE IN THE CONSTRUCTION OF THAT
ACT.  THE RIGHT OF APPEAL TO THE COURTS CONTAINED IN SEC. 66 OF THE
1919 LAW WAS FIRST OMITTED FROM THE 1921 PUERTO RICAN LAW,  FN7  AND
THIS LED THE SUPREME COURT OF PUERTO RICO TO DECLARE IN THE PRESENT
CASE THAT "SINCE 1921,  ...  THE RIGHT TO BRING SUITS FOR THE RECOVERY
OF TAXES OTHER THAN THOSE PAID UNDER PROTEST HAS BEEN ABROGATED."  FN8 

FURTHERMORE, FOUR DIFFERENT SECTIONS OF THE 1925 ACT (57, 60, 62 AND
76(A)) CONSTITUTE A STATUTORY PLAN UNDER WHICH A TAXPAYER WHO PAYS
UNDER PROTEST IS GRANTED THE RIGHT TO SUE IN THE COURTS FOR REFUND. 
SUCH A TAXPAYER CAN SUE AT LAW UNDER THESE SECTIONS ONLY IF HE HAS BEEN
DENIED RELIEF BY BOTH THE TREASURER AND THE BOARD OF REVIEW AND
EQUALIZATION OF THE ISLAND.  BUT THESE SECTIONS NOWHERE EXPRESSLY
AUTHORIZE APPEAL FROM THE TREASURER TO THE BOARD BY ONE WHO PAID TAXES
WITHOUT PROTEST.  AND SEC. 76(B), WHICH THE CIRCUIT COURT OF APPEALS
INTERPRETED AS AUTHORIZING SUIT BY A TAXPAYER WHO PAID WITHOUT PROTEST,
EXPRESSLY PROHIBITS SUIT IN COURT "UNTIL A CLAIM FOR REFUND OR CREDIT
HAS BEEN DULY FILED WITH  ...  THE BOARD OF REVIEW AND EQUALIZATION ON
APPEAL, ACCORDING TO THE PROVISIONS OF LAW IN THAT REGARD, AND THE
REGULATIONS ESTABLISHED IN PURSUANCE THEREOF."  SINCE A VOLUNTARY
TAXPAYER IS GIVEN NO EXPRESS RIGHT OF APPEAL FROM THE TREASURER TO THE
BOARD BY THE "PROVISIONS OF LAW IN  ...  REGARD" TO SUCH APPEALS, HE IS
NOT EXPRESSLY AUTHORIZED TO COMPLY WITH THE CONDITION PRECEDENT TO
RIGHT OF SUIT UNDER SEC. 76(B).  RIGHTS DENIED BY THE STATUTES COULD
NOT BE GRANTED BY REGULATIONS. 

IN ADDITION, SEC. 76(B) OF THE 1925 ACT IS PRACTICALLY IDENTICAL IN
LANGUAGE WITH SEC. 3226 OF UNITED STATES REVISED STATUTES GOVERNING
SUITS FOR REFUNDS OF UNITED STATES TAXES.  FN9  BUT THE LEGISLATURE OF
PUERTO RICO - WHILE APPARENTLY USING SEC. 3226 AS A MODEL - OMITTED
FROM 76(B) THE CLAUSE OF SEC. 3226 READING "SUIT OR PROCEEDING (FOR TAX
REFUND) MAY BE MAINTAINED, WHETHER OR NOT SUCH TAX  ...  HAS BEEN PAID
UNDER PROTEST OR DURESS."  THIS SUBSTANTIAL ADOPTION OF SEC. 3226,
OMITTING THE CLAUSE AUTHORIZING SUIT WITHOUT PROTEST, (AS WELL AS THE
SIMILAR OMISSION FROM THE 1921 ACT), COULD HARDLY REPRESENT ACCIDENTAL
OVERSIGHT, BUT INSTEAD INDICATES A DELIBERATE LEGISLATIVE PURPOSE. 
FN10 

CONGRESS FIRST GRANTED LOCAL AUTHORITY TO THE GOVERNMENT OF PUERTO
RICO IN 1900  FN11  AND COMPREHENSIVELY REVISED THE ORIGINAL PLAN IN
1917.  FN12  BOTH ENACTMENTS MANIFEST A CONGRESSIONAL PURPOSE TO
PRESERVE - CONSISTENTLY WITH OUR SYSTEM OF GOVERNMENT - THE THEN
EXISTING GOVERNMENTAL PRACTICES.  LAWS AND ORDINANCES THEN IN EFFECT
AND NOT CONTRARY TO OUR LAWS OR CONSTITUTION WERE CONTINUED IN FULL
FORCE, SUBJECT TO ALTERATION BY THE PUERTO RICAN LEGISLATURE OR
CONGRESS.  ORIGINAL AND APPELLATE LOCAL COURTS, THEIR JURISDICTION AND
PROCEDURE, WERE PRESERVED BY CONGRESS, AND LOCAL OFFICIALS WERE LEFT IN
OFFICE.  FN13  AND THIS COURT HAS DECLARED ITS UNWILLINGNESS TO
OVERRULE PUERTO RICAN TRIBUNALS UPON MATTERS OF PURELY LOCAL CONCERN
FN14  OR TO DECIDE AGAINST THE LOCAL UNDERSTANDING OF A LOCAL MATTER,
NOT BELIEVED BY THIS COURT TO BE CLEARLY WRONG; FN15 AND A DISPOSITION
TO ACCEPT THE CONSTRUCTION PLACED BY A LOCAL COURT UPON A LOCAL
STATUTE,  FN16 AND TO SUSTAIN SUCH A CONSTRUCTION IN THE ABSENCE OF
CLEAR OR MANIFEST ERROR.  FN17 

TAXING ACTS OF PUERTO RICO ARE PURELY LOCAL AND THE TRADITIONAL
RELUCTANCE OF THIS COURT TO OVERTURN CONSTRUCTIONS OF SUCH LOCAL
STATUTES BY LOCAL COURTS IS PARTICULARLY APPLICABLE TO INTERPRETATIONS
OF PUERTO RICAN STATUTES BY PUERTO RICAN TRIBUNALS.  FN18  ORDERLY
DEVELOPMENT OF THE GOVERNMENT OF PUERTO RICO AS AN INTEGRAL PART OF OUR
GOVERNMENTAL SYSTEM IS WELL SERVED BY A CAREFUL AND CONSISTENT
ADHERENCE TO THE LEGISLATIVE AND JUDICIAL POLICY OF DEFERRING TO THE
LOCAL PROCEDURE AND TRIBUNALS OF THE ISLAND. 

THE JUDGMENTS OF THE PUERTO RICAN COURTS IN THIS CASE ARE NOT
UNSUPPORTED BY LOGIC OR REASON.  THEY EMBODY A RECOGNITION OF OUR
CONSTITUTIONAL DIVISION OF POWERS BETWEEN THE LEGISLATIVE AND JUDICIAL
BRANCHES OF GOVERNMENT.  BELIEVING THE LEGISLATURE HAD DECLINED TO GIVE
THE RIGHT TO SUE TO A TAXPAYER WHO COMPUTED HIS OWN TAX FROM HIS OWN
RECORDS AND VOLUNTARILY PAID IT WITHOUT PROTEST, THE PUERTO RICAN
COURTS PROPERLY DECLINED TO READ IMPLICATIONS INTO A STATUTE WHICH THEY
COULD NOT FAIRLY FIND THERE.  IN PASSING UPON A PREVIOUS CONSTRUCTION
OF A PUERTO RICAN STATUTE BY THE SUPREME COURT OF PUERTO RICO, THIS
COURT SAID, "THE CONSTRUCTION ADOPTED IN PORTO RICO AT LEAST DOES NO
VIOLENCE TO THE WORDS OF THE STATUTE; IT CONCERNS LOCAL AFFAIRS UNDER A
SYSTEM WITH WHICH THE COURT OF THE ISLAND IS CALLED ON CONSTANTLY TO
DEAL, AND WE ARE NOT PREPARED, AS AGAINST THE WEIGHT PROPERLY
ATTRIBUTED TO THE LOCAL DECISION, TO SAY THAT IT IS WRONG."  FN19  SO
HERE, WE CANNOT SAY THE PUERTO RICAN COURTS WERE WRONG.  IN FAILING TO
UPHOLD THEIR CONSTRUCTION OF THE LOCAL STATUTES, THE CIRCUIT COURT OF
APPEALS WAS IN ERROR. 

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE COMPLAINT IN
THE DISTRICT COURT OF PUERTO RICO MUST STAND DISMISSED, AS ORDERED BY
THAT COURT AND AFFIRMED BY THE SUPREME COURT OF PUERTO RICO. 
REVERSED. 

FN1  98 F.2D 398.  THE OPINION OF THE SUPREME COURT OF PUERTO RICO,
AND ITS OPINION ON REHEARING, HAVE AS YET BEEN REPORTED ONLY IN
SPANISH.  50 D.P.R. 962, 51 D.P.R. 135. 

FN2  SEE PORTO RICO V. ROSALY, 227 U.S. 270, 274; PUERTO RICO V.
SHELL CO., 302 U.S. 253, 262. 

FN3  CF., DISMUKE V. UNITED STATES, 297 U.S. 167, 171, 172. 

FN4  LAWS OF PUERTO RICO 1925, P. 400, 536. 

FN5  LAWS, 1919, P. 612, 666. 

FN6  SECTION 66:  "THAT THE TREASURER BE, AND HE IS HEREBY,
AUTHORIZED TO REMIT, REIMBURSE OR MAKE RESTITUTION FOR ANY TAX OR DUTY
ERRONEOUSLY OR UNLAWFULLY IMPOSED OR COLLECTED, AS WELL AS OF THE
AMOUNT OF ANY FINE COLLECTED BY ERROR OR WITHOUT LEGAL AUTHORITY
THEREFOR. 

"THAT WHEN PROPER CLAIM HAS BEEN MADE TO THE TREASURER OF PORTO RICO
FOR THE RETURN, REIMBURSEMENT OR REMITTAL OF ANY DUTIES OR TAXES
ERRONEOUSLY OR ILLEGALLY LEVIED OR COLLECTED, AS WELL AS FOR THE AMOUNT
OF ANY FINES COLLECTED BY ERROR OR WITHOUT LEGAL AUTHORITY, IF HE
REFUSES WITHOUT REASON TO GRANT SUCH A CLAIM, THE AGGRIEVED PARTY MAY
APPEAL TO THE COURTS OF JUSTICE, FOLLOWING THEREFOR THE PROCEDURE
AUTHORIZED AND THE PROCEEDINGS ESTABLISHED BY SECTION 63 OF THIS ACT." 

FN7  LAWS, 1921, P. 312. 

FN8  COMPANIA AGRICOLA DE CAYEY, LTD. V. DOMENECH, 47 D.P.R.
535(SPANISH ED.), DECIDED PRIOR TO THE PRESENT CASE, IS TO THE SAME
EFFECT. 

FN9  43 STAT. 253, 343. 

FN10  CF., UNITED STATES V. MCCLURE, 305 U.S. 472, 477-478. 

FN11  ACT OF APRIL 12, 1900, C. 191, 31 STAT. 77. 

FN12  ACT OF MARCH 2, 1917, C. 145, 39 STAT. 951. 

FN13  SEE, GARZOT V. DE RUBIO, 209 U.S. 283, 302. 

FN14  NADAL V. MAY, 233 U.S. 447, 454. 

FN15  SANTE FE CENTRAL RY. CO. V. FRIDAY, 232 U.S. 694, 700. 

FN16  PHOENIX RY. CO. V. LANDIS, 231 U.S. 578, 579. 

FN17  VILLANUEVA V. VILLANUEVA, 239 U.S. 293, 299; WAIALUA CO. V.
CHRISTIAN, 305 U.S. 91, 109; INTER-ISLAND CO. V. HAWAII, 305 U.S. 306,
311. 

FN18  DIAZ V. GONZALEZ, 261 U.S. 102, 105, 106. 

FN19  CARDOVA V. FOLGUERAS, 227 U.S. 375, 378, 379. 
..END :







STATE TAX COMM'N V. VAN COTT, 306 U.S. 511 


NO. 491.  ARGUED MARCH 6, 7, 1939.  - DECIDED MARCH 27, 1939.  - 95 UTAH
43 - 79 P.2D 6, VACATED. 


1.  SALARIES OF EMPLOYEES OR OFFICIALS OF FEDERAL INSTRUMENTALITIES
ARE NOT IMMUNE UNDER THE FEDERAL CONSTITUTION FROM TAXATION BY THE
STATES.  GRAVES V. NEW YORK EX REL. O'KEEFE, ANTE, P. 466.  P. 515. 

2.  THE JUDGMENT OF THE SUPREME COURT OF UTAH HOLDING THE SALARIES OF
AN ATTORNEY FOR THE RECONSTRUCTION FINANCE CORPORATION AND THE REGIONAL
AGRICULTURAL CREDIT CORPORATION, BOTH FEDERAL AGENCIES, EXEMPT FROM
STATE TAXATION, DOES NOT REST SQUARELY UPON THE EXEMPTION IN THE UTAH
INCOME TAX LAW OF SALARIES RECEIVED FROM THE UNITED STATES "FOR
SERVICES RENDERED IN CONNECTION WITH THE EXERCISE OF AN ESSENTIAL
GOVERNMENTAL FUNCTION," BUT APPEARS ALSO TO HAVE BEEN ACTUATED BY THE
DOCTRINE THAT STATE TAXATION OF SUCH SALARIES IS FORBIDDEN BY THE
FEDERAL CONSTITUTION.  P. 513. 

3.  IN VIEW OF THE OVERRULING OF THAT DOCTRINE BY GRAVES V. O'KEEFE,
THIS COURT VACATES THE JUDGMENT OF THE SUPREME COURT OF UTAH AND
REMANDS THE CASE TO THAT COURT, IN ORDER THAT IT MAY DETERMINE WHETHER
THE SALARIES IN QUESTION ARE EXEMPTED BY THE STATE STATUTE, PURELY AS A
QUESTION OF LOCAL LAW.  P. 515. 

STATE TAX COMMISSION ET AL. V. VAN COTT. 

CERTIORARI TO THE SUPREME COURT OF UTAH. 

CERTIORARI, 305 U.S. 592, TO REVIEW A JUDGMENT SUSTAINING A CLAIM OF
EXEMPTION FROM STATE INCOME TAXATION, ON APPEAL FROM A RULING OF THE
ABOVE-NAMED TAX COMMISSION. 

THE DECISION OF THE COURT BELOW WAS BASED SQUARELY UPON THE
CONSTRUCTION OF THE UTAH TAXING STATUTE.  IT DID NOT AND COULD NOT
REACH THE FEDERAL QUESTION AND SHOULD NOT BE REVIEWED. 

THE RECONSTRUCTION AND REGIONAL CORPORATIONS ARE ENGAGED EXCLUSIVELY
IN EXERCISING TRADITIONAL AND IMPORTANT FUNCTIONS OF THE UNITED STATES,
- "ESSENTIAL GOVERNMENTAL FUNCTIONS," IF THAT PHRASE APPLIES TO ANY
FEDERAL ACTIVITIES.  BRUSH V. COMMISSIONER, 300 U.S. 352. 

UNDER DOBBINS V. COMMISSIONERS, 16 PET. 435, AND ROGERS V. GRAVES,
299 U.S. 401, RESPONDENT'S SALARIES ARE IMMUNE FROM STATE TAXATION,
IRRESPECTIVE OF THE STATE STATUTE.  ALSO, MCCULLOCH V. MARYLAND, 4
WHEAT.  316; HELVERING V. GERHARDT, 304 U.S. 405. 

NO QUESTION AS TO THE CONSTITUTIONALITY OF THE RECONSTRUCTION OR
REGIONAL CORPORATION IS PRESENTED. 

IT IS THE PRESENT INTENTION OF CONGRESS THAT THE SALARIES OF OFFICERS
AND EMPLOYEES OF THE UNITED STATES AND ITS INSTRUMENTALITIES SHALL BE
IMMUNE FROM TAXATION BY THE STATES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE STATE OF UTAH'S INCOME TAX LAW, EFFECTIVE IN 1935, EXEMPTS ALL
"AMOUNTS RECEIVED AS COMPENSATION, SALARIES OR WAGES FROM THE UNITED
STATES  ...  FOR SERVICES RENDERED IN CONNECTION WITH THE EXERCISE OF
AN ESSENTIAL GOVERNMENTAL FUNCTION."  FN1  IN HIS RETURN OF INCOME
TAXES TO THE STATE FOR 1935 UNDER THIS LAW, RESPONDENT CLAIMED "AS
DEDUCTION" AND "AS EXEMPT" SALARIES PAID HIM AS ATTORNEY FOR THE
RECONSTRUCTION FINANCE CORPORATION AND THE REGIONAL AGRICULTURAL CREDIT
CORPORATION, BOTH FEDERAL AGENCIES.  THE EXEMPTIONS WERE DENIED BY THE
TAX COMMISSION OF UTAH, BUT THE UTAH SUPREME COURT REVERSED.  FN2
BEFORE THE COMMISSION AND IN THE SUPREME COURT OF UTAH, RESPONDENT
ASSERTED, FIRST, THAT HIS SALARIES WERE EXEMPT BY THE TERMS OF THE
STATE STATUTE ITSELF, AND, SECOND, THAT THEY COULD NOT BE TAXED BY THE
STATE WITHOUT VIOLATING AN IMMUNITY GRANTED BY THE FEDERAL
CONSTITUTION.  IN HOLDING RESPONDENT'S INCOME NOT TAXABLE, THE SUPREME
COURT OF UTAH SAID:  "WE SHALL HAVE TO BE CONTENT TO FOLLOW, AS WE
THINK WE MUST, THE DOCTRINE OF THE GRAVES CASE (ROGERS V. GRAVES, 299
U.S. 401), UNTIL SUCH TIME AS A DIFFERENT RULE IS LAID DOWN BY THE
COURTS, THE CONGRESS, OR THE PEOPLE THROUGH AMENDMENT TO THE
CONSTITUTION."  FN3  THE GRAVES CASE APPLIED THE DOCTRINE THAT THE
FEDERAL CONSTITUTION PROHIBITS THE APPLICATION OF STATE INCOME TAXES TO
SALARIES DERIVED FROM FEDERAL INSTRUMENTALITIES.  WE GRANTED
CERTIORARI, IN THE PRESENT CASE, BECAUSE OF THE IMPORTANCE OF THE
PRINCIPLE OF CONSTITUTIONAL IMMUNITY FROM STATE TAXATION WHICH THE UTAH
COURT APPARENTLY THOUGHT CONTROLLED ITS JUDGMENT.  FN4 

RESPONDENT CONTENDS THAT THE UTAH SUPREME COURT'S DECISION "WAS BASED
SQUARELY UPON THE CONSTRUCTION OF THE UTAH TAXING STATUTE WHICH WAS
HELD TO OMIT RESPONDENT'S SALARIES AS A SUBJECT OF TAXATION, AND
THEREFORE THAT DECISION DID NOT AND COULD NOT REACH THE FEDERAL
QUESTION AND SHOULD NOT BE REVIEWED."  BUT THAT DECISION CANNOT BE SAID
TO REST SQUARELY UPON A CONSTRUCTION OF THE STATE STATUTE.  THE UTAH
COURT STATED THAT THE QUESTION BEFORE IT WAS WHETHER RESPONDENT'S
SALARIES FROM THE AGENCIES IN QUESTION WERE "TAXABLE INCOME FOR THE
PURPOSE OF THE STATE INCOME TAX LAW," AND THAT THE ANSWER DEPENDED UPON
WHETHER THESE AGENCIES EXERCISED "ESSENTIAL GOVERNMENTAL FUNCTIONS." 
BUT THE OPINION AS A WHOLE SHOWS THAT THE COURT FELT CONSTRAINED TO
CONCLUDE AS IT DID BECAUSE OF THE FEDERAL CONSTITUTION AND THIS COURT'S
PRIOR ADJUDICATIONS OF CONSTITUTIONAL IMMUNITY.  OTHERWISE, IT IS
DIFFICULT TO EXPLAIN THE COURT'S DECLARATION THAT RESPONDENT COULD NOT
BE TAXED UNDER THE "DOCTRINE OF THE GRAVES CASE UNTIL SUCH TIME AS A
DIFFERENT RULE IS LAID DOWN BY THE COURTS, THE CONGRESS OR THE PEOPLE
THROUGH AMENDMENT TO THE CONSTITUTION."  IF THE COURT WERE ONLY
INCIDENTALLY REFERRING TO DECISIONS OF THIS COURT IN DETERMINING THE
MEANING OF THE STATE LAW, AND HAD CONCLUDED THEREFROM THAT THE STATUTE
WAS ITSELF INTENDED TO GRANT EXEMPTION TO RESPONDENT, THIS COURT WOULD
HAVE NO JURISDICTION TO REVIEW THAT QUESTION.  FN5  BUT, IF THE STATE
COURT DID IN FACT INTEND ALTERNATIVELY TO BASE ITS DECISION UPON THE
STATE STATUTE AND UPON AN IMMUNITY IT THOUGHT GRANTED BY THE
CONSTITUTION AS INTERPRETED BY THIS COURT, THESE TWO GROUNDS ARE SO
INTERWOVEN THAT WE ARE UNABLE TO CONCLUDE THAT THE JUDGMENT RESTS UPON
AN INDEPENDENT INTERPRETATION OF THE STATE LAW.  FN6  WHATEVER
EXEMPTIONS THE SUPREME COURT OF UTAH MAY FIND IN THE TERMS OF THIS
STATUTE, ITS OPINION IN THE PRESENT CASE ONLY INDICATES THAT "IT
THOUGHT THE FEDERAL CONSTITUTION (AS CONSTRUED BY THIS COURT) REQUIRED"
IT TO HOLD RESPONDENT NOT TAXABLE.  FN7 

AFTER CAREFUL REVIEW OF THIS COURT'S DECISIONS ON THE QUESTION OF
INTERGOVERNMENTAL IMMUNITY, THE STATE COURT CONCLUDED THAT THE
RECONSTRUCTION FINANCE CORPORATION AND THE REGIONAL AGRICULTURAL CREDIT
CORPORATION WERE "INSTRUMENTALITIES" PERFORMING "ESSENTIAL GOVERNMENTAL
DUTIES" AND THAT STATE TAXATION OF RESPONDENT'S SALARIES VIOLATED THE
FEDERAL CONSTITUTION AS INTERPRETED BY THE GRAVES CASE.  ANTICIPATING
THAT THIS COURT MIGHT REEXAMINE THAT INTERPRETATION AND APPLY A
"DIFFERENT TEST," THE STATE COURT SAID THAT "UNTIL SUCH IS DONE THE
STATES ARE BOUND BY THE DECISION OF THE SUPREME COURT IN  ...  ROGERS
V. GRAVES, SUPRA." 

WE HAVE NOW RE-EXAMINED AND OVERRULED THE DOCTRINE OF ROGERS V.
GRAVES IN GRAVES V. O'KEEFE, ANTE, P. 466.  SALARIES OF EMPLOYEES OR
OFFICIALS OF THE FEDERAL GOVERNMENT OR ITS INSTRUMENTALITIES ARE NO
LONGER IMMUNE, UNDER THE FEDERAL CONSTITUTION, FROM TAXATION BY THE
STATES.  WHETHER THE UTAH INCOME TAX, BY ITS TERMS, EXEMPTS RESPONDENT,
CAN NOW BE DECIDED BY THE STATE'S HIGHEST COURT APART FROM ANY QUESTION
OF CONSTITUTIONAL IMMUNITY, AND WITHOUT THE NECESSITY, SO FAR AS THE
FEDERAL CONSTITUTION IS CONCERNED, OF ATTEMPTING TO DIVIDE FUNCTIONS OF
GOVERNMENT INTO THOSE WHICH ARE ESSENTIAL AND THOSE WHICH ARE NON
ESSENTIAL. 

"WE HAVE FREQUENTLY HELD THAT IN THE EXERCISE OF OUR APPELLATE
JURISDICTION WE HAVE POWER NOT ONLY TO CORRECT ERROR IN THE JUDGMENT
UNDER REVIEW BUT TO MAKE SUCH DISPOSITION OF THE CASE AS JUSTICE
REQUIRES.  AND IN DETERMINING WHAT JUSTICE DOES REQUIRE, THE COURT IS
BOUND TO CONSIDER ANY CHANGE, EITHER IN FACT OR IN LAW, WHICH HAS
SUPERVENED SINCE THE JUDGMENT WAS ENTERED.  WE MAY RECOGNIZE SUCH A
CHANGE, WHICH MAY AFFECT THE RESULT, BY SETTING ASIDE THE JUDGMENT AND
REMANDING THE CASE SO THAT THE STATE COURT MAY BE FREE TO ACT.  WE HAVE
SAID THAT TO DO THIS IS NOT TO REVIEW, IN ANY PROPER SENSE OF THE TERM,
THE DECISION OF THE STATE COURT UPON A NON-FEDERAL QUESTION, BUT ONLY
TO DEAL APPROPRIATELY WITH A MATTER ARISING SINCE ITS JUDGMENT AND
HAVING A BEARING UPON THE RIGHT DISPOSITION OF THE CASE."  FN8 

APPLYING THIS PRINCIPLE, WE VACATE THE JUDGMENT OF THE SUPREME COURT
OF UTAH AND REMAND THE CAUSE TO THAT COURT FOR FURTHER PROCEEDINGS. 
JUDGMENT VACATED. 

FN1  REVISED STAT. OF UTAH, 1933, SEC. 80-14-4, (2)(G). 

FN2  95 UTAH 43; 79 P.2D 6. 

FN3  79 P.2D 14. 

FN4  305 U.S. 592. 

FN5  MILLER'S EXECUTORS V. SWANN, 150 U.S. 132, 136; INTERSTATE
RAILWAY CO. V. MASSACHUSETTS, 207 U.S. 79, 84; LOUISVILLE & NASHVILLE
R. CO. V. WESTERN UNION TELEGRAPH CO., 237 U.S. 300, 302; CF.
CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495, 507. 

FN6  ABIE STATE BANK V. BRYAN, 282 U.S. 765, 773. 

FN7  CF. RED CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109, 120;
TIPTON V. ATCHISON, T. & S.F. RY. CO., 298 U.S. 141, 152, 153; ILLINOIS
CENTRAL R. CO. V. MESSINA, 240 U.S. 395, 397. 

FN8  PATTERSON V. ALABAMA, 294 U.S. 600, 607. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OR
DECISION OF THIS CASE. 
..END :









LOWDEN V. SIMONDS ETC. GRAIN CO., 306 U.S. 516 


NO. 342.  ARGUED JANUARY 30, 31, 1939.  - DECIDED MARCH 27, 1939.  - 97
F.2D 816, REVERSED. 


1.  UPON THE FACTS OF THIS CASE, HELD THAT, WITHIN THE MEANING OF A
TARIFF PROVISION, THERE WERE "PRIOR ARRANGEMENTS" COVERING "A SPECIFIED
PERIOD OF TIME," BETWEEN A SHIPPER AND THE RAILROAD FOR THE
INSTALLATION OF GRAIN DOORS IN CARS FURNISHED TO THE SHIPPER, AND THAT
THE SHIPPER WAS LIABLE FOR THE TARIFF CHARGE FOR SUCH SERVICE.  P.
520. 

2.  A SHIPPER CAN NOT ESCAPE LIABILITY TO PAY LAWFUL TARIFF CHARGES
FOR CARRIER SERVICE BY DISCLAIMING LIABILITY WHEN ORDERING IT; NOR CAN
THE CARRIER LAWFULLY YIELD TO SUCH DISCLAIMER.  ID. 

INVOLUNTARY REBATES FROM TARIFF RATES SHOULD BE VIEWED WITH THE SAME
DISAPPROVAL AS VOLUNTARY REBATES. 

3.  WHERE, AFTER THE COMMENCEMENT OF A SUIT BY A RAILROAD TO RECOVER
FROM A SHIPPER A TARIFF CHARGE OF $1.00 PER CAR FOR A SERVICE RENDERED,
THE INTERSTATE COMMERCE COMMISSION DETERMINED THAT A CHARGE HIGHER THAN
60[ PER CAR FOR SUCH SERVICE WAS UNREASONABLE AND AUTHORIZED
REPARATIONS ACCORDINGLY, THE RAILROAD WAS ENTITLED TO RECOVER UPON ITS
CLAIM REDUCED PRO TANTO.  P. 521. 

LOWDEN ET AL., TRUSTEES, V. SIMONDSSHIELDS-LONSDALE GRAIN CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 305 U.S. 587, TO REVIEW THE AFFIRMANCE OF A JUDGMENT IN
FAVOR OF THE SHIPPER, 19 F.SUPP.  438, IN A SUIT BROUGHT BY THE
TRUSTEES OF A RAILROAD COMPANY TO RECOVER FOR CARRIER SERVICES. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON CERTIORARI TO REVIEW THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS FOR THE EIGHTH CIRCUIT AFFIRMING A JUDGMENT OF THE
DISTRICT COURT FOR THE RESPONDENT.  CERTIORARI WAS GRANTED FOR
CONSIDERATION OF A FEDERAL QUESTION OF SUBSTANCE, TO WIT, WHETHER A
CARRIER'S CHARGES FOR SERVICES, ACTUALLY UTILIZED BY A SHIPPER AND
AUTHORIZED BY A TARIFF REQUIRING PRIOR ARRANGEMENTS FOR THE SERVICES,
ARE UNCOLLECTIBLE WHEN THE SERVICES ARE RENDERED ON ORDERS, PRECEDED OR
ACCOMPANIED BY DENIALS OF LEGAL LIABILITY.  SUBSTANTIAL CONFLICT WAS
ALLEGED.  FN1 

THE FACTS WERE STIPULATED.  THE PETITIONERS, AS TRUSTEES OF THE
CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, BROUGHT SUIT, UNDER
SEC. 24(8) OF THE JUDICIAL CODE,  FN2 IN THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF MISSOURI, FOR THE VALUE OF SERVICES
RENDERED IN THE INSTALLATION OF GRAIN DOORS ON BOX CARS USED BY THE
RESPONDENT TO SHIP GRAIN IN BULK IN INTERSTATE COMMERCE.  GRAIN DOORS
ARE REQUIRED TO PREVENT LEAKAGE OF GRAIN FROM THE CAR WHILE IN
TRANSIT.  THEY ARE WOODEN BARRIERS WHICH MUST BE PLACED INSIDE THE BOX
CAR DOORS BEFORE LOADING AND REMOVED UPON UNLOADING.  BEFORE JULY 1,
1935, THEY WERE FURNISHED AND INSTALLED BY CARRIERS WITHOUT SEPARATE
CHARGE.  EFFECTIVE THAT DAY, A TARIFF FILED WITH THE INTERSTATE
COMMERCE COMMISSION CONTINUED THE CARRIERS' PRACTICE OF FURNISHING THE
MATERIALS FOR GRAIN DOORS BUT SHIFTED THE COST OF INSTALLATION TO THE
SHIPPERS.  IT PROVIDED AS FOLLOWS:  "THE RAILROAD WILL ACT AS SHIPPER'S
AGENT AND INSTALL GRAIN DOORS  ...  AT A CHARGE OF ONE DOLLAR ($1.00)
PER CAR; PRIOR ARRANGEMENTS FOR THE SERVICE TO BE MADE WITH THE
CARRIERS AND TO COVER A SPECIFIED PERIOD OF TIME  ...  " 

ON JULY 2, 1935, THE DAY AFTER THE TARIFF WENT INTO EFFECT, THE
RESPONDENT, TOGETHER WITH OTHER SHIPPERS, ADDRESSED A LETTER TO THE
LOCAL FREIGHT AGENTS OF SEVERAL CARRIERS, INCLUDING THE CHICAGO, ROCK
ISLAND AND PACIFIC, IN WHICH THEY ANNOUNCED THAT DESPITE THE TARIFF
THEY EXPECTED THE RAILROADS, FROM AND AFTER JULY 1, 1935, TO FURNISH
CARS WITH EQUIPMENT TO CARRY BULK GRAIN SAFELY, AND WOULD DECLINE TO
PAY FOR THE SERVICE OF INSTALLING GRAIN DOORS IN THE CARS.  THEY WROTE
IN PART:  "SAID UNDERSIGNED PARTIES FURTHER NOTIFY YOU THAT IF ORDINARY
BOX CARS ARE FURNISHED AND SUPPLIED UPON SUCH ORDERS (FOR CARS FOR THE
SHIPMENT OF BULK GRAIN) THEY WILL EXPECT THEM TO BE FULLY COOPERED OR
PREPARED WITH NECESSARY SIDE-DOOR BARRICADES COMPLETELY INSTALLED AND
READY FOR LOADING." 

THE CARRIERS PROTESTED THAT NEITHER THEY NOR THE SHIPPERS COULD BE
PARTIES TO PRACTICES NOT IN CONFORMITY WITH THE TARIFF.  THEY DECLARED
THAT UNLESS THE SHIPPERS MADE UNQUALIFIED ARRANGEMENTS PURSUANT TO THE
TERMS OF THE TARIFF, CARS WOULD BE FURNISHED WITHOUT THE GRAIN DOORS
INSTALLED.  THIS LETTER, DATED JULY 15, 1935, EVOKED NO REPLY.  BETWEEN
JULY 1, 1935, AND FEBRUARY 29, 1936, THE PETITIONERS UPON THE ORDERS OF
RESPONDENT SUPPLIED THE GRAIN COMPANY WITH 624 BOX CARS FOR THE
SHIPMENT OF GRAIN IN BULK.  BEFORE THE CARS WERE LOADED, THE
PETITIONERS INSTALLED THE NECESSARY GRAIN DOORS.  BILLS, RENDERED
MONTHLY, CHARGED THE RESPONDENT $1.00 FOR EACH CAR.  ON NOVEMBER 22,
1935, THE LATTER RETURNED THE BILLS, DECLINING TO PAY ON THE GROUND
THAT IT HAD MADE NO ARRANGEMENT FOR THE PETITIONERS TO INSTALL GRAIN
DOORS AS ITS AGENTS, AS CONTEMPLATED BY THE TARIFF.  IT CONCLUDED WITH
A REQUEST THAT PETITIONERS REVEAL THE JUSTIFICATION FOR THE CHARGES IN
THE ABSENCE OF ANY ARRANGEMENT.  THE PETITIONERS' AGENT REPLIED ON
JANUARY 9, 1936, THAT THE LETTER OF JULY 2, 1935, HAD BEEN CONSTRUED TO
EFFECT AN ARRANGEMENT AND "ACCEPTING SUCH PRIOR ARRANGEMENT, THE CARS
WERE COOPERED FOR YOUR ACCOUNT AND AS YOUR AGENT, AND WERE ACCEPTED AND
USED BY YOU AS SUCH."  BY LETTER OF JANUARY 15, 1936, THE RESPONDENT
DISAGREED WITH PETITIONERS' CONSTRUCTION OF THE LETTER OF JULY 2, 1935,
AND REITERATED ITS INTENTION NOT TO PAY. 

ON APRIL 4, 1936, THE PETITIONERS BEGAN THIS SUIT, ASKING JUDGMENT
FOR $624.  BEFORE TRIAL IN THE DISTRICT COURT, THE INTERSTATE COMMERCE
COMMISSION PASSED UPON THE VALIDITY AND REASONABLENESS OF THE CHARGE
FOR THIS PARTICULAR SERVICE.  ON APRIL 12, 1937, THE COMMISSION RULED
THAT IT WAS PROPER TO REQUIRE THE SHIPPER TO BEAR THE EXPENSE OF
INSTALLING GRAIN DOORS FURNISHED BY THE CARRIER; THAT THE CLAUSE
RELATIVE TO PRIOR ARRANGEMENTS WAS NOT AMBIGUOUS; THAT IT WAS FOR THE
CARRIER'S BENEFIT AND COULD BE WAIVED; THAT THE CHARGE OF $1.00 PER CAR
WAS UNREASONABLE AND SHOULD BE LIMITED TO $.60 PER CAR.  IT RULED
FURTHER THAT SHIPPERS WHO HAD PAID THE $1.00 CHARGE WERE ENTITLED TO
REPARATION AND THAT CARRIERS MIGHT WAIVE COLLECTION ABOVE THE SIXTY
CENT CHARGE FROM SHIPPERS WHO HAD NOT YET PAID.  220 I.C.C. 753.  FN3
THE PETITIONERS REDUCED THEIR DEMAND IN THE DISTRICT COURT TO $.60 PER
CAR AND ASKED JUDGMENT FOR $374.40. 

THE DISTRICT COURT GAVE JUDGMENT FOR THE RESPONDENT.  19 F.SUPP. 
438.  THE CIRCUIT COURT OF APPEALS AFFIRMED, ONE JUDGE DISSENTING.  97
F.2D 816. 

THE RULING OF THE INTERSTATE COMMERCE COMMISSION DETERMINES THAT THE
INSTALLATION IS A DUTY OF THE SHIPPER AND THAT THE CARRIER CAN ONLY
RECEIVE SIXTY CENTS WHEN IT ACTS FOR THE SHIPPER IN PERFORMING THAT
DUTY.  THESE ARE THE ESSENTIAL PROVISIONS OF THE TARIFF.  TO FACILITATE
THE RENDITION OF THE SERVICE PRIOR ARRANGEMENTS ARE REQUIRED.  THE
DOMINANT ELEMENTS ARE THE RESPONSIBILITY FOR AND THE AMOUNT OF THE
CHARGE.  THESE ARE FIXED BY THE TARIFF.  THE LETTER OF JULY 2, 1935,
FROM THE SHIPPERS REQUIRED THE INSTALLATION OF THE GRAIN DOORS AND THE
RESPECTIVE ORDERS FOR THE SEPARATE CARS, GIVEN THEREAFTER, WERE GIVEN
IN THE LIGHT OF THIS DEMAND FOR CARS SO EQUIPPED.  WE THINK THIS WAS AN
ARRANGEMENT UNDER THE TARIFF.  ON JULY 2, 1935, THE RESPONDENT CLEARLY
SIGNIFIED ITS DESIRE FOR CARS FULLY COOPERED AND READY FOR LOADING. 
ITS LETTER OF THAT DATE WAS AN UNCONDITIONAL REQUEST FOR THE
PETITIONERS' SERVICES FOR A SUFFICIENTLY SPECIFIED PERIOD OF TIME -
"FROM AND AFTER JULY 1, 1935."  THE ANNOUNCEMENT THAT RESPONDENT WOULD
DECLINE TO PAY FOR THEM IN NO WAY QUALIFIED THE REQUEST FOR TARIFF
SERVICES, AND CANNOT NOW STAVE OFF LIABILITY.  THE PETITIONERS COULD
DISREGARD THIS ADVANCE DISCLAIMER OF LIABILITY AND RELY UPON THE COURTS
TO ENFORCE OBSERVANCE OF THE TARIFF.  UNTIL CHANGED, TARIFFS BIND BOTH
CARRIERS AND SHIPPERS WITH THE FORCE OF LAW.  FN4  UNDER SEC. 6 OF THE
INTERSTATE COMMERCE ACT THE CARRIER CANNOT DEVIATE FROM THE RATE
SPECIFIED IN THE TARIFF FOR ANY SERVICE IN CONNECTION WITH THE
TRANSPORTATION OF PROPERTY.  FN5  THAT SECTION FORBIDS THE CARRIER FROM
GIVING A VOLUNTARY REBATE IN ANY SHAPE OR FORM.  THIS COURT HAS HAD
OCCASION RECENTLY TO SUSTAIN ACTION OF THE COMMISSION AIMED AT
CARRIERS' PRACTICES RESULTING IN COLLECTION OF LESS THAN THE TARIFF
RATE.  FN6  IT IS EQUALLY IMPORTANT TO AID THE EFFORTS OF A CARRIER IN
COLLECTING PUBLISHED CHARGES IN FULL.  FN7 INVOLUNTARY REBATES FROM
TARIFF RATES SHOULD BE VIEWED WITH THE SAME DISAPPROVAL AS VOLUNTARY
REBATES. 

THE RESPONDENT SUGGESTS THAT THE SUIT MUST FAIL BECAUSE BASED UPON A
TARIFF HELD BY THE INTERSTATE COMMERCE COMMISSION "UNREASONABLE AND
UNLAWFUL."  THE COMMISSION DID NOT HOLD THE TARIFF UNLAWFUL OR WHOLLY
UNREASONABLE.  IT CLEARLY RECOGNIZED THE VALIDITY OF A TARIFF CHARGE
FOR INSTALLATION SERVICES RENDERED BY CARRIERS AT THE REQUEST OF
SHIPPERS, BUT FOUND $1.00 PER CAR UNREASONABLE TO THE EXTENT THAT IT
EXCEEDED $.60.  IT AWARDED REPARATION TO THOSE WHO HAD PAID $1.00 PER
CAR AND AUTHORIZED THE CARRIERS TO WAIVE COLLECTION OF THE AMOUNT OVER
$.60 PER CAR FROM SHIPPERS WHO HAD NOT PAID.  FN8  THE ONLY RELIEF
AFFORDED RESPONDENT BY THE COMMISSION'S DECISION IS A RIGHT TO
REPARATION FOR ALL PAYMENTS OVER $.60 PER CAR.  FN9  THE VOLUNTARY
REDUCTION OF THEIR CLAIM BY THE PETITIONERS IS A SENSIBLE ADJUSTMENT OF
THEIR RIGHT TO RECOVER THE TARIFF CHARGE AND OF THEIR OBLIGATION TO
MAKE REPARATION TO THE EXTENT THAT IT IS UNREASONABLE. 

IT IS UNNECESSARY TO CONSIDER VARIOUS OTHER CONTENTIONS MADE BY BOTH
THE PETITIONERS AND THE RESPONDENT.  JUDGMENT REVERSED. 

FN1  CF. WABASH RY. CO. V. HORN, 40 F.2D 905, 906(C.C.A. 7). 

FN2  28 U.S.C. SEC. 41.  "THE DISTRICT COURTS SHALL HAVE ORIGINAL
JURISDICTION AS FOLLOWS:  ... EIGHTH.  OF ALL SUITS AND PROCEEDINGS
ARISING UNDER ANY LAW REGULATING COMMERCE."  SEE LOUISVILLE & NASHVILLE
R. CO. V. RICE, 247 U.S. 201, 203. 

FN3  THREE COMMISSIONERS DISSENTED.  THE DECISION OF THE COMMISSION
IS PART OF THE RECORD.  A.J. PHILLIPS CO. V. GRAND TRUNK W. RY. CO.,
236 U.S. 662, 664; CF. ROBINSON V. BALTIMORE & OHIO R. CO., 222 U.S.
506, 511-12. 

FN4  ROBINSON V. BALTIMORE & OHIO R. CO., 222 U.S. 506, 509;
PENNSYLVANIA R. CO. V. INTERNATIONAL COAL CO., 230 U.S. 184, 197. 

FN5  ACT OF FEB. 4, 1887, 24 STAT. 379, 381, AS AMENDED, 49 U.S.C.
SEC. 6(7). 

FN6  BALTIMORE & OHIO R. CO. V. UNITED STATES, 305 U.S. 507. 

FN7  CF. PITTSBURGH, C., C. & ST. L. RY. CO. V. FINK, 250 U.S. 577;
NEW KYORK CENTRAL & HARLEM RIVER R. CO. V. YORK & WHITNEY CO., 256 U.S.
406. 

FN8  CHICAGO BOARD OF TRADE V. ABILENE & S. RY. CO., 220 I.C.C. 753,
769. 

FN9  CF. A.J. PHILLIPS CO. V. GRAND TRUNK W. RY., 236 U.S. 662, 665;
ARIZONA GROCERY CO. V. ATCHISON, T. & S.F. RY. CO., 284 U.S. 370, 384. 

..END :








TEXAS V. FLORIDA, 306 U.S. 398 


NO. 11, ORIGINAL.  ARGUED FEBRUARY 7, 1939.  - DECIDED MARCH 13, 1939. 


1.  THE COURT INQUIRES SUA SPONTE INTO ITS JURISDICTION OF THE CASE. 
P. 405. 

2.  PRIVATE PARTIES WHOSE PRESENCE IS NECESSARY OR PROPER FOR THE
DETERMINATION OF A CASE OR CONTROVERSY BETWEEN STATES MAY BE JOINED AS
DEFENDANTS.  ID. 

3.  JURISDICTION OF THIS SUIT UNDER CONSTITUTION ART. III, SEC. 2
TURNS ON THE QUESTIONS WHETHER THE ISSUE FRAMED BY THE PLEADINGS
CONSTITUTES A JUSTICIABLE "CASE" OR "CONTROVERSY" AND WHETHER THE FACTS
ALLEGED AND FOUND AFFORD AN ADEQUATE BASIS FOR RELIEF ACCORDING TO
ACCEPTED DOCTRINES OF THE COMMON LAW AND EQUITY SYSTEMS WHICH ARE
GUIDES TO DECISION OF CASES WITHIN THE ORIGINAL JURISDICTION OF THIS
COURT.  ID. 

4.  BILLS OF INTERPLEADER AND BILLS IN THE NATURE OF INTERPLEADER
CONSIDERED.  ID. 

5.  THE EQUITABLE JURISDICTION BY BILL IN THE NATURE OF INTERPLEADER
EXISTS WHERE THE PARTIES, INCLUDING THE PLAINTIFF, HAVE INDEPENDENT AND
MUTUALLY EXCLUSIVE CLAIMS UPON THE SAME FUND AND WHERE, ALTHOUGH IN
POINT OF LAW OR FACT ONLY ONE CLAIMANT IS ENTITLED TO SUCCEED, THERE IS
DANGER THAT INDEPENDENT PROSECUTIONS OF THE CLAIMS MAY RESULT IN
MULTIPLE RECOVERIES AND RESULTANT DEPLETION OF THE FUND TO THE DAMAGE
OF THE CLAIMANT PROPERLY ENTITLED.  THE GROUND OF THE JURISDICTION IS
TO AVOID THIS DANGER.  EQUITY AVOIDS IT BY REQUIRING THE RIVAL
CLAIMANTS TO LITIGATE BEFORE IT THE DECISIVE ISSUE.  P. 406. 

6.  A SUIT, BY BILL IN THE NATURE OF INTERPLEADER, BROUGHT BY A STATE
AGAINST OTHER STATES TO DETERMINE THE TRUE DOMICILE OF A DECEDENT AS
THE BASIS FOR DEATH TAXES, EACH STATE CLAIMING THE RIGHT TO TAX THE
SUCCESSION TO HIS INTANGIBLE PROPERTY UPON THE GROUND THAT HE WAS THERE
DOMICILED AT THE TIME OF DEATH,  - HELD COGNIZABLE IN EQUITY AND WITHIN
THE ORIGINAL JURISDICTION OF THIS COURT.  CONSTITUTION ART. III, SEC.
2.  P. 405. 

THE SOLE LEGAL BASIS ASSERTED BY EACH STATE FOR THE RIGHT TO IMPOSE
THE TAX WAS DOMICILE OF THE DECEDENT, AT THE TIME OF HIS DEATH, IN THE
TAXING STATE; BY THE LAW OF EACH THERE COULD BE BUT ONE DOMICILE FOR
DEATH TAX PURPOSES; EACH IN GOOD FAITH CLAIMED THE DOMICILE AND, PRIOR
TO THE SUIT, WAS IN GOOD FAITH PREPARING TO ENFORCE A TAX LIEN UPON
DECEDENT'S INTANGIBLES AND, BUT FOR THE SUIT, WOULD BE TAKING STEPS TO
THAT END; THE NET ESTATE WAS INSUFFICIENT TO PAY THE TAX CLAIMS OF ALL
THE STATES AND OF THE FEDERAL GOVERNMENT; NONE OF THE STATES WOULD
CONSENT TO BECOME A PARTY TO ANY PROCEEDING IN ANY OF THE OTHERS, TO
DETERMINE THE RIGHT TO TAX; THERE WAS SUBSTANTIAL BASIS FOR THE CLAIM
OF DOMICILE IN EACH OF THE STATES; AND, DUE TO THE JURISDICTIONAL
PECULIARITIES OF THE FEDERAL AND STATE JUDICIAL SYSTEMS, AND TO THE
SPECIAL CIRCUMSTANCES OF THE CASE, THERE WAS A REAL RISK THAT THROUGH
CONFLICTING ASSESSMENTS AGGREGATING AN AMOUNT IN EXCESS OF THE ESTATE
THE RIGHT OF THE COMPLAINANT OR SOME OTHER STATE MIGHT BE DEFEATED; NO
QUESTION WAS PRESENTED OF A SITUS OF ANY OF THE INTANGIBLE PROPERTY
DIFFERING, FOR TAX PURPOSES, FROM THE PLACE OF DOMICILE, AND NO
DETERMINATION IN THIS SUIT, AS TO DOMICILE, COULD FORECLOSE
DETERMINATION OF SUCH QUESTIONS OF OTHER TAX SITUS BY ANY COURT OF
COMPETENT JURISDICTION IN WHICH THEY MIGHT ARISE. 

7.  THAT TWO OR MORE STATES MAY EACH CONSTITUTIONALLY ASSESS DEATH
TAXES ON A DECEDENT'S INTANGIBLES UPON A JUDICIAL DETERMINATION THAT
THE DECEDENT WAS DOMICILED WITHIN IT, IN PROCEEDINGS BINDING UPON THE
REPRESENTATIVES OF THE ESTATE, BUT TO WHICH THE OTHER STATES ARE NOT
PARTIES, IS AN ESTABLISHED PRINCIPLE.  P. 410. 

8.  THE EQUITY JURISDICTION IN A SUIT IN THE NATURE OF INTERPLEADER
BEING FOUNDED ON AVOIDANCE OF THE RISK OF LOSS RESULTING FROM THE
THREATENED PROSECUTION OF MULTIPLE CLAIMS, THE RISK MUST BE APPRAISED
IN THE LIGHT OF THE CIRCUMSTANCES AS THEY ARE IN GOOD FAITH ALLEGED AND
SHOWN TO EXIST AT THE TIME WHEN THE SUIT WAS BROUGHT.  P. 410. 

9.  IN A SUIT LIKE THE PRESENT BETWEEN STATES, MERE ADJUDICATION
SUFFICES AND NEED NOT BE SUPPLEMENTED BY AN INJUNCTION.  P. 411. 

10.  THE COURT ACCEPTS THE SPECIAL MASTER'S FINDINGS OF FACT AND HIS
CONCLUSION THAT THE DECEDENT AT THE TIME OF HIS DEATH WAS DOMICILED IN
MASSACHUSETTS.  P. 413. 

11.  RESIDENCE IN FACT, COUPLED WITH THE PURPOSE TO MAKE THE PLACE OF
RESIDENCE ONE'S HOME, ARE THE ESSENTIAL ELEMENTS OF DOMICILE.  P. 424. 

12.  WHILE ONE'S STATEMENTS MAY SUPPLY EVIDENCE OF THE INTENTION
REQUISITE TO ESTABLISH DOMICILE AT A GIVEN PLACE OF RESIDENCE, THEY CAN
NOT SUPPLY THE FACT OF RESIDENCE THERE; AND THEY ARE OF SLIGHT WEIGHT
WHEN THEY CONFLICT WITH THE FACT.  THIS IS THE MORE SO WHERE, AS HERE,
THE STATEMENTS ARE SHOWN TO HAVE BEEN INSPIRED BY THE DESIRE TO
ESTABLISH A NOMINAL RESIDENCE FOR TAX PURPOSES, DIFFERENT FROM THE
RESIDENCE IN FACT.  P. 425. 

IN SUCH CIRCUMSTANCES, THE ACTUAL FACT OF THE PLACE OF RESIDENCE AND
THE PERSON'S REAL ATTITUDE AND INTENTION WITH RESPECT TO IT AS
DISCLOSED BY HIS COURSE OF CONDUCT ARE THE CONTROLLING FACTORS IN
ASCERTAINING HIS DOMICILE.  WHEN ONE INTENDS THE FACTS TO WHICH THE LAW
ATTACHES CONSEQUENCES, HE MUST ABIDE THE CONSEQUENCES WHETHER INTENDED
OR NOT. 

13.  ONE CAN NOT ELECT TO MAKE HIS HOME IN ONE PLACE IN POINT OF
INTEREST AND ATTACHMENT AND FOR THE GENERAL PURPOSES OF LIFE, AND IN
ANOTHER, WHERE HE IN FACT HAS NO RESIDENCE, FOR THE PURPOSE OF
TAXATION.  P. 426. 

14.  PHYSICAL FACTS OF RESIDENCE, UNITED WITH MAJOR LIFE INTERESTS
MAY FIX DOMICILE - ONE'S "PREEMINENT HEADQUARTERS."  ID. 

15.  THE BURDEN OF PROOF IS ON ONE WHO CLAIMS THAT AN EARLIER
DOMICILE WAS ABANDONED FOR A LATER ONE.  P. 427. 

TEXAS V. FLORIDA ET AL. 

ORIGINAL SUIT BY THE STATE OF TEXAS AGAINST THE STATES OF FLORIDA,
NEW YORK AND MASSACHUSETTS, TO DETERMINE THE DOMICILE, AT DEATH, OF
EDWARD H. R. GREEN, DECEASED, AS A BASIS FOR RIGHT TO LEVY A DEATH TAX
IN RESPECT OF THE SUCCESSION TO HIS INTANGIBLE PROPERTY.  HIS WIFE AND
HIS SISTER, CLAIMANTS UPON THE ESTATE, WERE ALSO IMPLEADED AS PARTIES
DEFENDANT.  THE DEFENDANT STATES SEPARATELY DENIED THE PLAINTIFF'S
CLAIM OF DOMICILE IN TEXAS, AND EACH BY COUNTERCLAIM ASSERTED ITS CLAIM
OF DOMICILE AND CONSEQUENT RIGHT TO TAX.  THE WIFE ADMITTED THAT THE
DECEDENT'S DOMICILE WAS IN TEXAS AND LAID CLAIM TO A LARGE SHARE OF THE
ESTATE AS COMMUNITY PROPERTY FREE FROM DEATH TAXES.  SHE WAS DISMISSED
FROM THE SUIT, ON STIPULATION.  302 U.S. 662.  THE SISTER DENIED THE
PLAINTIFF'S CLAIM OF DOMICILE IN TEXAS AND PRAYED THAT THE TRUE
DOMICILE FOR PURPOSES OF TAXATION BE DETERMINED.  THE CASE WAS REFERRED
TO JOHN S. FLANNERY, ESQ., AS SPECIAL MASTER, WHO TOOK VOLUMINOUS
EVIDENCE AND MADE HIS REPORT.  HE FOUND THAT THE DOMICILE OF DECEDENT
AT THE TIME OF HIS DEATH WAS IN MASSACHUSETTS.  THE CASE WAS HEARD ON
EXCEPTIONS TO THE SPECIAL MASTER'S CONCLUSIONS OF FACT AND SUBSIDIARY
FINDINGS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS ORIGINAL SUIT, IN THE NATURE OF A BILL OF INTERPLEADER, BROUGHT
TO DETERMINE THE TRUE DOMICILE OF DECEDENT AS THE BASIS OF RIVAL CLAIMS
OF FOUR STATES FOR DEATH TAXES UPON HIS ESTATE, RAISES TWO PRINCIPAL
QUESTIONS:  WHETHER THIS COURT HAS JURISDICTION OF THE CAUSE AND, IF
SO, WHETHER THE REPORT OF THE SPECIAL MASTER, FINDING THAT DECEDENT AT
THE TIME OF HIS DEATH WAS DOMICILED IN MASSACHUSETTS, SHOULD BE
CONFIRMED. 

ON MARCH 15, 1937, THIS COURT GRANTED THE MOTION OF THE STATE OF
TEXAS FOR LEAVE TO FILE ITS BILL OF COMPLAINT AGAINST THE STATES OF
FLORIDA AND NEW YORK AND THE COMMONWEALTH OF MASSACHUSETTS, AND AGAINST
DECEDENT'S WIFE, MABEL HARLOW GREEN, AND HIS SISTER, HETTY SYLVIA ANN
HOWLAND GREEN WILKS, BOTH ALLEGED TO BE RESIDENTS OF NEW YORK.  THE
BILL OF COMPLAINT ALLEGES THAT EDWARD H.R. GREEN DIED AT LAKE PLACID,
NEW YORK, ON JUNE 8, 1936, LEAVING SURVIVING HIM HIS WIFE AND SISTER AS
HIS ONLY HEIR AND NEXT OF KIN; THAT HE LEFT A GROSS ESTATE OF
APPROXIMATELY $44,348,500, AND A NET ESTATE VALUED AT $42,348,500,
COMPRISING REAL ESTATE AND TANGIBLE PERSONAL PROPERTY LOCATED IN TEXAS,
NEW YORK, FLORIDA AND MASSACHUSETTS, OF AN AGGREGATE VALUE OF
APPROXIMATELY $6,500,000, AND INTANGIBLE PERSONAL PROPERTY CONSISTING
PRINCIPALLY OF STOCKS, BONDS AND SECURITIES, THE PAPER EVIDENCES OF
MOST OF WHICH WERE LOCATED IN NEW YORK. 

THE BILL OF COMPLAINT ALLEGES THAT DECEDENT, AT THE TIME OF HIS
DEATH, WAS DOMICILED IN TEXAS, BUT THAT FLORIDA, NEW YORK, AND
MASSACHUSETTS EACH ASSERTS, THROUGH ITS TAXING OFFICIALS, THAT DECEDENT
WAS AT THE TIME OF HIS DEATH DOMICILED WITHIN IT.  IT ALLEGES IN DETAIL
THAT TEXAS AND EACH OF THE DEFENDANT STATES MAINTAINS AND ENFORCES A
SYSTEM OF TAXATION UPON THE INHERITANCE OR SUCCESSION OF THE ESTATES OF
DECEDENTS DOMICILED WITHIN THE STATE AT DEATH, UNDER WHICH LAWS REAL
ESTATE AND TANGIBLE PERSONAL PROPERTY LOCATED WITHIN THE STATE AND ALL
INTANGIBLES, REGARDLESS OF THEIR SITUS, ARE SUBJECTED TO THE TAX; THAT
EACH OF THE FOUR STATES ASSERTS AND PROPOSES TO EXERCISE THE RIGHT TO
TAX THE ESTATE OF DECEDENT ON THE ASSUMPTION THAT DECEDENT WAS
DOMICILED WITHIN IT AT THE TIME OF HIS DEATH; AND THAT CERTAIN JUDICIAL
PROCEEDINGS HAVE BEEN INSTITUTED IN EACH OF THE FOUR STATES FOR THE
ADMINISTRATION OF DECEDENT'S ESTATE OR SOME PARTS OF IT.  FN1  IT IS
FURTHER ALLEGED THAT NONE OF THE FOUR STATES AND NO OFFICER OR
REPRESENTATIVE OF ANY STATE, EXCEPT AS ALREADY NOTED, HAS BECOME A
PARTY TO ANY OF THOSE PROCEEDINGS, AND THAT NO STATE OR ITS OFFICER OR
REPRESENTATIVE WILL APPEAR OR BECOME A PARTY TO ANY SUCH PROCEEDINGS
INSTITUTED IN ANY OTHER STATE TO FIX OR ASSESS DEATH TAXES ON
DECEDENT'S ESTATE, AND THAT NO JUDGMENT IN ANY SUCH PROCEEDING WILL BE
BINDING ON ANY STATE NOT A PARTY TO IT; THAT EACH OF THE FOUR STATES
CLAIMS A LIEN FOR TAXES AND THE RIGHT TO COLLECT A TAX, BASED ON
DECEDENT'S ALLEGED DOMICILE WITHIN IT, UPON THE TANGIBLES LOCATED IN
THE STATE AND UPON ALL DECEDENT'S INTANGIBLES WHEREVER LOCATED, THE
TOTAL OF SUCH CLAIMS AMOUNTING TO A SUM FAR GREATER THAN THE NET VALUE
OF THE ESTATE; THAT THE AMOUNT OF DECEDENT'S PROPERTY LOCATED IN TEXAS
IS NEGLIGIBLE IN AMOUNT AND INSUFFICIENT TO PAY ITS TAX; AND IN THE
EVENT THAT THE STATES SHOULD OBTAIN ADJUDICATIONS IN THEIR OWN OR OTHER
COURTS IN PENDING PROCEEDINGS, OR OTHERS INSTITUTED FOR THE PURPOSE OF
COLLECTING THE TAX ON THE GROUND THAT DECEDENT WAS DOMICILED ELSEWHERE
THAN IN TEXAS, TEXAS WOULD BE DEPRIVED OF ITS LAWFUL TAX.  THE BILL
PRAYS THAT THE COURT DETERMINE WHETHER DECEDENT'S DOMICILE, FOR
PURPOSES OF TAXATION, WAS IN EITHER OF THE DEFENDANT STATES AND THAT
PARTICULARLY IT DETERMINE AND ADJUDICATE THAT HIS DOMICILE WAS IN TEXAS
AND THAT IT ALONE HAS THE RIGHT TO ASSESS AND COLLECT DEATH TAXES ON
DECEDENT'S INTANGIBLES. 

THE SEVERAL DEFENDANT STATES, ANSWERING, ADMIT THAT DECEDENT'S ESTATE
IS INSUFFICIENT TO SATISFY THE TOTAL AMOUNT OF THE TAXES CLAIMED.  ALL
DENY THAT GREEN WAS DOMICILED IN TEXAS, AND BY WAY OF COUNTERCLAIM AND
CROSS-BILL AGAINST THE OTHER DEFENDANTS, EACH ASSERTS THAT HE WAS
DOMICILED IN IT AND THAT IT IS ENTITLED TO COLLECT DEATH TAXES UPON ALL
OF DECEDENT'S INTANGIBLE PROPERTY AND UPON ALL HIS TANGIBLES WITHIN THE
STATE.  THE ANSWER OF DECEDENT'S WIFE ADMITTED THAT HE WAS DOMICILED IN
TEXAS AND ASSERTED THAT BY TEXAS LAW SHE OWNED, AS COMMUNITY PROPERTY,
ONE-HALF OF SUBSTANTIALLY ALL OF DECEDENT'S ESTATE ACQUIRED BY HIM
AFTER THEIR MARRIAGE, FREE AND CLEAR OF ALL DEATH TAXES.  PURSUANT TO
STIPULATION SHOWING THAT SHE HAD RELEASED ALL INTEREST IN DECEDENT'S
ESTATE, THE SUIT WAS DISMISSED AS TO HER BY ORDER OF THE COURT ON
JANUARY 17, 1938.  302 U.S. 662.  THE ANSWER OF DEFENDANT WILKS,
DECEDENT'S SISTER, DENIES THAT GREEN WAS DOMICILED IN TEXAS AND ASKS
THE COURT TO DETERMINE IN WHICH OF THE DEFENDANT STATES HE WAS
DOMICILED FOR PURPOSES OF TAXATION. 

ON JUNE 1, 1937, THIS COURT APPOINTED A SPECIAL MASTER, 301 U.S. 671,
TO TAKE EVIDENCE, TO MAKE FINDINGS OF FACT AND STATE CONCLUSIONS OF
LAW, AND TO SUBMIT THEM TO THIS COURT, TOGETHER WITH HIS
RECOMMENDATIONS FOR A DECREE.  THE SPECIAL MASTER HAS REPORTED HIS
FINDINGS, WITH CERTAIN EVIDENTIARY FACTS, AND HIS FINDING THAT DECEDENT
AT THE TIME OF HIS DEATH WAS DOMICILED IN THE COMMONWEALTH OF
MASSACHUSETTS, THIS LATTER CONCLUSION BEING SUPPORTED BY ELABORATE
SUBSIDIARY FINDINGS.  THE CASE IS NOW BEFORE US ON EXCEPTIONS TO THE
SPECIAL MASTER'S CONCLUSIONS OF FACT AND SUBSIDIARY FINDINGS THAT
DECEDENT'S DOMICILE WAS IN MASSACHUSETTS AT THE TIME OF HIS DEATH. 

JURISDICTION. 

WHILE THE EXCEPTIONS DO NOT CHALLENGE THE JURISDICTION OF THE COURT,
THE NOVEL CHARACTER OF THE QUESTIONS PRESENTED AND THE DUTY WHICH RESTS
UPON THIS COURT TO SEE TO IT THAT THE EXERCISE OF ITS POWERS BE
CONFINED WITHIN THE LIMITS PRESCRIBED BY THE CONSTITUTION MAKE IT
INCUMBENT UPON US TO INQUIRE OF OUR OWN MOTION WHETHER THE CASE IS ONE
WITHIN ITS JURISDICTION.  MINNESOTA V. HITCHCOCK, 185 U.S. 373, 382. 
BY THE JUDICIARY ARTICLE OF THE CONSTITUTION, THE JUDICIAL POWER
EXTENDS TO CONTROVERSIES BETWEEN STATES, AND THIS COURT IS GIVEN
ORIGINAL JURISDICTION OF CASES IN WHICH A STATE SHALL BE A PARTY.  ART.
III, SEC. 2.  THE PRESENT SUIT IS BETWEEN STATES, AND THE OTHER
JURISDICTIONAL REQUIREMENTS BEING SATISFIED, THE INDIVIDUAL PARTIES
WHOSE PRESENCE IS NECESSARY OR PROPER FOR THE DETERMINATION OF THE CASE
OR CONTROVERSY BETWEEN THE STATES ARE PROPERLY MADE PARTIES DEFENDANT. 
CF. UNITED STATES V. WEST VIRGINIA, 295 U.S. 463, 470.  SO THAT OUR
CONSTITUTIONAL AUTHORITY TO HEAR THE CASE AND GRANT RELIEF TURNS ON THE
QUESTION WHETHER THE ISSUE FRAMED BY THE PLEADINGS CONSTITUTES A
JUSTICIABLE "CASE" OR "CONTROVERSY" WITHIN THE MEANING OF THE
CONSTITUTIONAL PROVISION, AND WHETHER THE FACTS ALLEGED AND FOUND
AFFORD AN ADEQUATE BASIS FOR RELIEF ACCORDING TO ACCEPTED DOCTRINES OF
THE COMMON LAW OR EQUITY SYSTEMS OF JURISPRUDENCE, WHICH ARE GUIDES TO
DECISION OF CASES WITHIN THE ORIGINAL JURISDICTION OF THIS COURT.  SEE
ROBINSON V. CAMPBELL, 3 WHEAT.  212, 222, 223; PENNSYLVANIA V. WHEELING
& BELMONT BRIDGE CO., 18 HOW.  460, 462; IRVINE V. MARSHALL, 20 HOW. 
558, 564, 565; PAYNE V. HOOK, 7 WALL.  425, 430. 

BEFORE THE CONSTITUTION WAS ADOPTED A FAMILIAR BASIS FOR THE EXERCISE
OF THE EXTRAORDINARY POWERS OF COURTS OF EQUITY WAS THE AVOIDANCE OF
THE RISK OF LOSS ENSUING FROM THE DEMANDS IN SEPARATE SUITS OF RIVAL
CLAIMANTS TO THE SAME DEBT OR LEGAL DUTY.  ALNETE V. BETTAM, CARY,
65(1560); HACKETT V. WEBB AND WILLEY, FINCH 257(1676); SEE 9 VINER
ABR., 419-440; 1 SPENCE, THE EQUITABLE JURISDICTION OF THE COURT OF
CHANCERY, 659; MACLENNAN, LAW OF INTERPLEADER, 5 ET SEQ. SINCE, WITHOUT
THE INTERPOSITION OF EQUITY, EACH CLAIMANT IN PURSUING HIS REMEDY IN AN
INDEPENDENT SUIT MIGHT SUCCEED AND THUS SUBJECT THE DEBTOR OR THE FUND
PURSUED TO MULTIPLE LIABILITY, EQUITY GAVE A REMEDY BY WAY OF BILL OF
INTERPLEADER, UPON THE PROSECUTION OF WHICH IT REQUIRED THE RIVAL
CLAIMANTS TO LITIGATE IN A SINGLE SUIT THEIR OWNERSHIP OF THE ASSERTED
CLAIM.  A PLAINTIFF NEED NOT AWAIT ACTUAL INSTITUTION OF INDEPENDENT
SUITS; IT IS ENOUGH IF HE SHOWS THAT CONFLICTING CLAIMS ARE ASSERTED
AND THAT THE CONSEQUENT RISK OF LOSS IS SUBSTANTIAL.  EVANS V. WRIGHT,
13 W.R. 468; MICHIGAN TRUST CO. V. MCNAMARA, 165 MICH. 200; 130 N.W.
653; WEBSTER V. HALL, 60 N.H. 7; THOMPSON V. EBBETS, HOPK.  CH.
272(N.Y.); DORN V. FOX, 61 N.Y. 264; YARBOROUGH V. THOMPSON, 3 SM. & M.
(11 MISS.)  291, 294; 4 POMEROY, EQUITY JURISPRUDENCE (4TH ED.)  SECS. 
1319-1329, 1458-1482; MACLENNAN, SUPRA, 119. 

THE PECULIARITY OF THE STRICT BILL OF INTERPLEADER WAS THAT THE
PLAINTIFF ASSERTED NO INTEREST IN THE DEBT OR FUND, THE AMOUNT OF WHICH
HE PLACED AT THE DISPOSAL OF THE COURT AND ASKED THAT THE RIVAL
CLAIMANTS BE REQUIRED TO SETTLE IN THE EQUITY SUIT THE OWNERSHIP OF THE
CLAIM AMONG THEMSELVES.  BUT AS THE SOLE GROUND FOR EQUITABLE RELIEF IS
THE DANGER OF INJURY BECAUSE OF THE RISK OF MULTIPLE SUITS WHEN THE
LIABILITY IS SINGLE, FARLEY V. BLOOD, 30 N.H. 354, 361; BEDELL V.
HOFFMAN, 2 PAIGE 199, 200; MOHAWK & HUDSON R. CO. V. CLUTE, 4 PAIGE
384, 392; ATKINSON V. MANKS, 1 COWEN (N.Y.)  691, 703; STORY, EQUITY
PLEADINGS (10TH ED.)  SECS.  291, 292, AND AS PLAINTIFFS WHO ARE NOT
MERE STAKEHOLDERS MAY BE EXPOSED TO THAT RISK, EQUITY EXTENDED ITS
JURISDICTION TO SUCH CASES BY THE BILL IN THE NATURE OF INTERPLEADER. 
THE ESSENTIAL OF THE BILL IN THE NATURE OF INTERPLEADER IS THAT IT
CALLS UPON THE COURT TO EXERCISE ITS JURISDICTION TO GUARD AGAINST THE
RISKS OF LOSS FROM THE PROSECUTION IN INDEPENDENT SUITS OF RIVAL CLAIMS
WHERE THE PLAINTIFF HIMSELF CLAIMS AN INTEREST IN THE PROPERTY OR FUND
WHICH IS SUBJECTED TO THE RISK.  THE OBJECT AND GROUND OF THE
JURISDICTION ARE TO GUARD AGAINST THE CONSEQUENT DEPLETION OF THE FUND
AT THE EXPENSE OF THE PLAINTIFF'S INTEREST IN IT AND TO PROTECT HIM AND
THE OTHER PARTIES TO THE SUIT FROM THE JEOPARDY RESULTING FROM THE
PROSECUTION OF NUMEROUS DEMANDS, TO ONLY ONE OF WHICH THE FUND IS
SUBJECT.  WHILE IN POINT OF LAW OR FACT ONLY ONE PARTY IS ENTITLED TO
SUCCEED, THERE IS DANGER THAT RECOVERY MAY BE ALLOWED IN MORE THAN ONE
SUIT.  EQUITY AVOIDS THE DANGER BY REQUIRING THE RIVAL CLAIMANTS TO
LITIGATE BEFORE IT THE DECISIVE ISSUE, AND WILL NOT WITHHOLD ITS AID
WHERE THE PLAINTIFF'S INTEREST IS EITHER NOT DENIED OR HE DOES NOT
ASSERT ANY CLAIM ADVERSE TO THAT OF THE OTHER PARTIES, OTHER THAN THE
SINGLE CLAIM, DETERMINATION OF WHICH IS DECISIVE OF THE RIGHTS OF ALL. 
PACIFIC NATIONAL BANK V. MIXTER, 124 U.S. 721; PROVIDENCE SAV. LIFE
ASSUR.  SOC.  V. LOEB, 115 F. 357; SHERMAN NATIONAL BANK V. SHUBERT
THEATRICAL CO., 238 F. 225, AFF'D, 247 F. 256; ILLINGWORTH V. ROWE, 52
N.J. EQ. 360; 28 A. 456; CARTER V. CRYER, 68 N.J. EQ. 24; 59 A. 233; 2
STORY, EQUITY JURISPRUDENCE (14TH ED.)  SEC.  1140; STORY, EQUITY
PLEADINGS (10TH ED.)  SEC.  297B; CHAFEE, CASES ON EQUITABLE REMEDIES,
75 ET SEQ.; 3 DANIELL, CHANCERY PLEADING AND PRACTICE (6TH AMER.  ED.) 
1572; MACLENNAN, SUPRA, 338 ET SEQ. 

WHEN, BY APPROPRIATE PROCEDURE, A COURT POSSESSING EQUITY POWERS IS
IN SUCH CIRCUMSTANCES ASKED TO PREVENT THE LOSS WHICH MIGHT OTHERWISE
RESULT FROM THE INDEPENDENT PROSECUTION OF RIVAL BUT MUTUALLY EXCLUSIVE
CLAIMS, A JUSTICIABLE ISSUE IS PRESENTED FOR ADJUDICATION WHICH,
BECAUSE IT IS A RECOGNIZED SUBJECT OF THE EQUITY PROCEDURE WHICH WE
HAVE INHERITED FROM ENGLAND, IS A "CASE" OR "CONTROVERSY," WITHIN THE
MEANING OF THE CONSTITUTIONAL PROVISION; AND WHEN THE CASE IS ONE
PROSECUTED BETWEEN STATES, WHICH ARE THE RIVAL CLAIMANTS, AND THE RISK
OF LOSS IS SHOWN TO BE REAL AND SUBSTANTIAL, THE CASE IS WITHIN THE
ORIGINAL JURISDICTION OF THIS COURT CONFERRED BY THE JUDICIARY
ARTICLE.  SEE NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S. 249,
261 ET SEQ., AND CASES CITED.    HERE IT IS CONCEDED BY THE PLEADINGS
AND UPON BRIEF AND ARGUMENT THAT THE SOLE LEGAL BASIS ASSERTED BY THE
FOUR STATES FOR THE IMPOSITION OF DEATH TAXES ON DECEDENT'S INTANGIBLES
IS HIS DOMICILE AT DEATH IN THE TAXING STATE.  THERE IS NO QUESTION
PRESENTED OF A SITUS OF DECEDENT'S INTANGIBLES DIFFERING, FOR TAX
PURPOSES, FROM THE PLACE OF HIS DOMICILE, SUCH AS WAS CONSIDERED IN NEW
ORLEANS V. STEMPEL, 175 U.S. 309; SAFE DEPOSIT & TRUST CO. V. VIRGINIA,
280 U.S. 83; BEIDLER V. SOUTH CAROLINA TAX COMM'N, 282 U.S. 1, 8; FIRST
NATIONAL BANK V. MAINE, 284 U.S. 312, 331; WHEELING STEEL CORP. V. FOX,
298 U.S. 193, 210; FIRST BANK STOCK CORP. V. MINNESOTA, 301 U.S. 234,
237, 238; LONG V. STOKES, 174 TENN. 1; 118 S.W.2D 228, PROBABLE
JURISDICTION NOTED, NOV. 14, 1938; GRAVES V. ELLIOTT, 274 N.Y. 10; 8
N.E.2D 42, CERTIORARI GRANTED NOVEMBER 14, 1938, 305 U.S. 667.  AND NO
DETERMINATION MADE HERE AS TO DOMICILE CAN HEREAFTER FORECLOSE THE
DETERMINATION OF SUCH QUESTIONS BY ANY COURT OF COMPETENT JURISDICTION
IN WHICH THEY MAY ARISE.  BY THE LAW OF EACH STATE A DECEDENT CAN HAVE
ONLY A SINGLE DOMICILE FOR PURPOSES OF DEATH TAXES, AND DETERMINATION
OF THE PLACE OF DOMICILE OF DECEDENT WILL DETERMINE WHICH OF THE FOUR
STATES IS ENTITLED TO IMPOSE THE TAX ON INTANGIBLES SO FAR AS THEY HAVE
NO SITUS DIFFERENT FROM THE PLACE OF DOMICILE.  NO RELIEF IS SOUGHT TO
RESTRAIN COLLECTION OF THE TAX OR TO INTERFERE WITH THE DETERMINATION
OF ITS AMOUNT BY APPROPRIATE STATE PROCEDURE. 

THE SPECIAL MASTER HAS FOUND THAT EACH OF THE FOUR STATES IN GOOD
FAITH ASSERTS THAT THE DECEDENT WAS DOMICILED WITHIN IT AT HIS DEATH;
THAT PRIOR TO THE COMMENCEMENT OF THESE PROCEEDINGS EACH STATE IN GOOD
FAITH WAS PREPARING TO ENFORCE A LIEN ON DECEDENT'S INTANGIBLES
WHEREVER LOCATED AND WOULD NOW BE TAKING APPROPRIATE ACTION BUT FOR
THESE PROCEEDINGS; AND THAT THE NET ESTATE IS NOT SUFFICIENT TO PAY THE
AGGREGATE AMOUNT OF THE TAXES CLAIMED BY THEM AND BY THE FEDERAL
GOVERNMENT.  FN2  HE HAS ALSO FOUND, AS AVERRED IN THE PLEADINGS, THAT
NONE OF THE FOUR STATES HAS BECOME OR WILL CONSENT TO BECOME A PARTY TO
ANY PROCEEDINGS FOR DETERMINING THE RIGHT TO COLLECT THE TAX IN ANY
OTHER STATE; THAT THE RIGHT OF TEXAS TO ASSERT ITS TAX LIEN AND TO
PROSECUTE ITS CLAIM FOR TAXES WITH SUCCESS IS IN JEOPARDY AND THAT IT
IS WITHOUT ADEQUATE REMEDY SAVE IN THIS COURT. 

THE RISK THAT DECEDENT'S ESTATE MIGHT CONSTITUTIONALLY BE SUBJECTED
TO CONFLICTING TAX ASSESSMENTS IN EXCESS OF ITS TOTAL VALUE AND THAT
THE RIGHT OF COMPLAINANT OR SOME OTHER STATE TO COLLECT THE TAX MIGHT
THUS BE DEFEATED WAS A REAL ONE, DUE BOTH TO THE JURISDICTIONAL
PECULIARITIES OF OUR DUAL FEDERAL AND STATE JUDICIAL SYSTEMS AND TO THE
SPECIAL CIRCUMSTANCES OF THIS CASE.  THAT TWO OR MORE STATES MAY EACH
CONSTITUTIONALLY ASSESS DEATH TAXES ON A DECEDENT'S INTANGIBLES UPON A
JUDICIAL DETERMINATION THAT THE DECEDENT WAS DOMICILED WITHIN IT IN
PROCEEDINGS BINDING UPON THE REPRESENTATIVES OF THE ESTATE, BUT TO
WHICH THE OTHER STATES ARE NOT PARTIES, IS AN ESTABLISHED PRINCIPLE OF
OUR FEDERAL JURISPRUDENCE.  THORMANN V. FRAME, 176 U.S. 350; OVERBY V.
GORDON, 177 U.S. 214; BURBANK V. ERNST, 232 U.S. 162; BAKER V. BAKER,
ECCLES & CO., 242 U.S. 394; IOWA V. SLIMMER, 248 U.S. 115, 120, 121;
WORCESTER COUNTY TRUST CO. V. RILEY, 302 U.S. 292, 299.  AND A JUDGMENT
THUS OBTAINED IS BINDING ON THE PARTIES TO IT AND CONSTITUTIONALLY
ENTITLED TO FULL FAITH AND CREDIT IN THE COURTS OF EVERY OTHER STATE. 
MILWAUKEE COUNTY V. WHITE CO., 296 U.S. 268.  THE EQUITY JURISDICTION
BEING FOUNDED ON AVOIDANCE OF THE RISK OF LOSS RESULTING FROM THE
THREATENED PROSECUTION OF MULTIPLE CLAIMS, THE RISK MUST BE APPRAISED
IN THE LIGHT OF THE CIRCUMSTANCES AS THEY ARE IN GOOD FAITH ALLEGED AND
SHOWN TO EXIST AT THE TIME WHEN THE SUIT WAS BROUGHT.  CF. CLARK V.
WOOSTER, 119 U.S. 322; RICE & ADAMS CORP. V. LATHROP, 278 U.S. 509;
MACLENNAN, SUPRA, 132 ET SEQ. IN THIS CASE, AS WILL PRESENTLY BE NOTED,
THE RELATIONS OF DECEDENT TO EACH OF THE DEMANDING STATES WERE SUCH AS
TO AFFORD SUBSTANTIAL BASIS FOR THE CLAIM THAT HE WAS DOMICILED WITHIN
IT, WITH FAIR PROBABILITY THAT THE CLAIM WOULD BE ACCEPTED AND
FAVORABLY ACTED UPON IF THERE WERE NO PARTICIPATION BY THE OTHER STATES
IN THE LITIGATION.  SEE NEW JERSEY V. PENNSYLVANIA, 287 U.S. 580; HILL
V. MARTIN, 296 U.S. 393; DORRANCE'S ESTATE, 309 PA. 151; 163 A. 303,
CERTIORARI DENIED, 287 U.S. 660, 288 U.S. 617; IN RE DORRANCE, 115 N.J.
EQ. 268; 170 A. 601; DORRANCE V. MARTIN, 116 N.J. LAW 362; 184 A. 743,
CERTIORARI DENIED, 298 U.S. 678.  CF. MATTER OF TROWBRIDGE, 266 N.Y.
283; 194 N.E. 756.  IN ADDITION THE FACTS MOST ESSENTIAL TO
ESTABLISHING THAT ATTITUDE AND RELATIONSHIP OF PERSON TO PLACE WHICH
CONSTITUTE DOMICILE WERE IN THIS CASE OBSCURED BY NUMEROUS SELF-SERVING
STATEMENTS OF DECEDENT AS TO HIS DOMICILE, WHICH, BECAUSE MADE FOR THE
PURPOSE OF AVOIDING LIABILITY FOR STATE INCOME AND PERSONAL PROPERTY
TAXES LEVIED ON THE BASIS OF DOMICILE, TENDED TO CONCEAL RATHER THAN
REVEAL THE TRUE RELATIONSHIP IN THIS CASE.  TAKEN AS A WHOLE THE CASE
IS EXCEPTIONAL IN ITS CIRCUMSTANCES AND IN THE PRINCIPLES OF LAW
APPLICABLE TO THEM, ALL UNITING TO IMPOSE A RISK OF LOSS UPON THE STATE
LAWFULLY ENTITLED TO COLLECT THE TAX. 

WE THINK THAT THE SPECIAL MASTER'S FINDING OF JEOPARDY IS SUSTAINED;
THAT A JUSTICIABLE "CASE" BETWEEN THE STATES IS PRESENTED; AND THAT A
CAUSE OF ACTION COGNIZABLE IN EQUITY IS ALLEGED AND PROVED.  THE FACT
THAT NO RELIEF BY WAY OF INJUNCTION IS SOUGHT OR IS RECOMMENDED BY THE
SPECIAL MASTER DOES NOT MILITATE AGAINST THIS CONCLUSION.  WHILE IN
MOST CAUSES IN EQUITY THE PRINCIPAL RELIEF SOUGHT IS THAT AFFORDED BY
INJUNCTION, THERE ARE OTHERS IN WHICH THE IRREPARABLE INJURY WHICH IS
THE INDISPENSABLE BASIS FOR THE EXERCISE OF EQUITY POWERS IS PREVENTED
BY A MERE ADJUDICATION OF RIGHTS WHICH IS BINDING ON THE PARTIES.  THIS
HAS LONG BEEN THE SETTLED PRACTICE OF THIS COURT IN CASES OF BOUNDARY
DISPUTES BETWEEN STATES.  LOUISIANA V. MISSISSIPPI, 202 U.S. 1;
ARKANSAS V. TENNESSEE, 246 U.S. 158; GEORGIA V. SOUTH CAROLINA, 257
U.S. 516; OKLAHOMA V. TEXAS, 272 U.S. 21; MICHIGAN V. WISCONSIN, 272
U.S. 398; NEW JERSEY V. DELAWARE, 291 U.S. 361.  IN THE CASE OF BILLS
OF PEACE, BILLS OF INTERPLEADER AND BILLS IN THE NATURE OF
INTERPLEADER, THE GIST OF THE RELIEF SOUGHT IS THE AVOIDANCE OF THE
BURDEN OF UNNECESSARY LITIGATION OR THE RISK OF LOSS BY THE
ESTABLISHMENT OF MULTIPLE LIABILITY WHEN ONLY A SINGLE OBLIGATION IS
OWING.  THESE RISKS ARE AVOIDED BY ADJUDICATION IN A SINGLE LITIGATION
BINDING ON THE PARTIES. 

WHILE COURTS OF EQUITY IN SUCH SUITS MAY AND FREQUENTLY DO GIVE
INCIDENTAL RELIEF BY INJUNCTION TO SECURE THE FULL BENEFITS OF THE
ADJUDICATION AND TO TERMINATE THE LITIGATION IN A SINGLE SUIT, THEY ARE
NOT BOUND TO DO SO AND THEIR ADJUDICATION OF THE CONFLICTING CLAIMS IS
NOT ANY THE LESS EFFECTIVE AS RES JUDICATA BECAUSE NOT SUPPLEMENTED BY
INJUNCTION.  WE DO NOT DOUBT THAT WHEN THE EQUITY POWERS OF THE COURT
HAVE BEEN INVOKED IT HAS POWER IN ITS DISCRETION TO GIVE SUCH
INCIDENTAL RELIEF BY WAY OF INJUNCTION AS WILL MAKE ITS DETERMINATION
THE EFFECTIVE MEANS OF AVOIDING RISK OF LOSS TO ANY OF THE PARTIES BY
REASON OF THE ASSERTED MULTIPLE TAX LIABILITY.  BUT THE PLENARY EFFECT
OF ITS DECISION AS RES JUDICATA, AND CONSIDERATIONS OF CONVENIENCE IN
THE LEVYING OF THE TAX BY THE USUAL STATE PROCEDURE, MAKE IT
UNNECESSARY AND UNDESIRABLE THAT THE COURT SHOULD PROCEED BEYOND
ADJUDICATION.  THE FACT THAT THE COURT, FOR REASONS OF POLICY OR
CONVENIENCE, DOES NOT EXERCISE THE POWER WHICH IT POSSESSES AND WHICH
HAS BEEN TRADITIONALLY EXERCISED IN LIKE CASES BETWEEN PRIVATE SUITORS
DOES NOT DEPRIVE THE SUIT OF ITS CHARACTER AS A CASE OR CONTROVERSY
COGNIZABLE BY THE COURT IN AN ORIGINAL SUIT.  SEE FIDELITY NATIONAL
BANK & TRUST CO. V. SWOPE, 274 U.S. 123, 132, 133, 134; NASHVILLE, C. &
ST. L. RY. V. WALLACE, SUPRA. 

DOMICILE. 

THE SPECIAL MASTER TOOK VOLUMINOUS TESTIMONY IN EACH OF THE FOUR
STATES, RECORDING EVERY AVAILABLE FACT HAVING ANY BEARING ON THE ISSUE
OF DECEDENT'S DOMICILE.  AFTER AN EXHAUSTIVE STUDY OF THE EVIDENCE THE
SPECIAL MASTER HAS PREPARED ELABORATE SUBSIDIARY FINDINGS IN WHICH HE
HAS STATED WHAT HE CONSIDERS TO BE THE ESSENTIAL FACTS OF DECEDENT'S
LIFE WHICH, TAKEN TOGETHER, WERE THE CONTROLLING FACTORS IN HIS
ARRIVING AT THE CONCLUSION THAT DECEDENT, AT THE TIME OF HIS DEATH, WAS
DOMICILED IN THE COMMONWEALTH OF MASSACHUSETTS. 

IN CONSIDERING AND WEIGHING THE EVIDENCE THE SPECIAL MASTER CONCLUDED
THAT THERE WAS NO LOCAL LAW PECULIAR TO ANY OF THE STATES WITH RESPECT
TO THE ESSENTIAL FACT ELEMENTS WHICH GO TO ESTABLISH DOMICILE, AND THAT
THE RULE IN EACH OF THE STATES DEFINING DOMICILE WAS SUBSTANTIALLY THAT
OF THE COMMON LAW.  TEXAS, SINCE GREEN IN THE EARLIER PART OF HIS LIFE
LIVED FOR A LARGE PART OF HIS TIME IN THAT STATE AND FREQUENTLY
PROCLAIMED IT TO BE HIS LEGAL RESIDENCE, PLACES GREAT EMPHASIS ON THE
COMMON LAW RULE THAT WHEN ONE HAS ONCE ACQUIRED A DOMICILE IN ONE PLACE
HE DOES NOT LOSE IT BY MERE RESIDENCE ELSEWHERE WITHOUT THE INTENTION
TO MAKE THE NEW PLACE OF RESIDENCE A DOMICILE IN THE SENSE OF A
PERMANENT HOME.  THE DEFENDANT STATES, AS THEY WERE ALL PLACES IN WHICH
DECEDENT LIVED FOR CONSIDERABLE PERIODS OF TIME DURING THE LATTER PART
OF HIS LIFE, AND AS THEY WERE ALL PLACES WITH WHICH HE THEN BECAME MORE
INTIMATELY ASSOCIATED, PLACE GREATER EMPHASIS ON "HOME" AS THE
SUBSTANTIAL EQUIVALENT OF DOMICILE AS THE TERM IS DEFINED IN THE
AMERICAN LAW INSTITUTE'S RESTATEMENT OF CONFLICT OF LAWS, SEC. 13,
WHERE IT IS SAID:  "A HOME IS A DWELLING PLACE OF A PERSON,
DISTINGUISHED FROM OTHER DWELLING-PLACES OF THAT PERSON BY THE INTIMACY
OF THE RELATION BETWEEN THE PERSON AND THE PLACE  ...  IN DETERMINING
WHETHER A DWELLING-PLACE IS A PERSON'S HOME, CONSIDERATION SHOULD BE
GIVEN TO: 

"1.  ITS PHYSICAL CHARACTERISTICS; 

"2.  THE TIME HE SPENDS THEREIN; 

"3.  THE THINGS HE DOES THEREIN; 

"4.  THE PERSONS AND THINGS THEREIN; 

"5.  HIS MENTAL ATTITUDE TOWARDS THE PLACE; 

"6.  HIS INTENTION WHEN ABSENT TO RETURN TO THE PLACE; 

"7.  ELEMENTS OF OTHER DWELLING-PLACES OF THE PERSON CONCERNED." 

THE SPECIAL MASTER, WHILE NOT COMPLETELY ADOPTING EITHER OF THE TESTS
PROPOSED, NEVERTHELESS FINDS THAT BOTH SUPPORT HIS CONCLUSION.  WE
ACCEPT THE SPECIAL MASTER'S FINDINGS OF FACT AND HIS CONCLUSION THAT
THE DECEDENT AT THE TIME OF HIS DEATH WAS DOMICILED IN MASSACHUSETTS. 
AS THE MASTER HAS FOUND AND STATED IN GREAT DETAIL THE CIRCUMSTANCES OF
DECEDENT'S LIFE WHICH LEAD TO THAT CONCLUSION, AND HAS MADE THEM
AVAILABLE IN HIS REPORT, WE FIND IT UNNECESSARY TO DO MORE THAN STATE
THE SALIENT FACTS WHICH ARE TYPICAL OF AND SUPPORTED BY MANY OTHERS,
AND WHICH SUPPORT HIS ULTIMATE CONCLUSION. 

EDWARD GREEN WAS BORN IN ENGLAND AUGUST 22, 1868, AND WAS IN HIS
SIXTY-EIGHTH YEAR AT THE TIME OF HIS DEATH, JUNE 8, 1936, AT LAKE
PLACID, NEW YORK, WHERE HE WAS TEMPORARILY SOJOURNING FOR REASONS OF
HEALTH.  HE WAS THE SON OF HETTY GREEN, A WELL-KNOWN FIGURE IN THE
FINANCIAL WORLD, WHO WAS BORN IN NEW BEDFORD, MASSACHUSETTS.  HER
FOREBEARS HAD RESIDED IN THAT VICINITY SINCE THE SEVENTEENTH CENTURY,
AND GREEN AND HIS SISTER MRS. WILKS INHERITED FROM HER ONE HUNDRED AND
THIRTY ACRES OF LAND IN THE TOWN OF DARTMOUTH, WHICH HAD BEEN THE
FAMILY HOME AND HAD BEEN PROPERTY OF THE FAMILY FOR SOME TWO HUNDRED
YEARS.  THE FOUNDATION OF THE FAMILY FORTUNE HAD BEEN LAID IN THE
WHALING INDUSTRY, CENTERING AT NEW BEDFORD.  AT HER DEATH HIS MOTHER
LEFT AN ESTATE OF $67,000,000 WHICH, UNDER HER WILL, BECAME THE
PROPERTY OF DECEDENT AND HIS SISTER IN SUBSTANTIALLY EQUAL SHARES. 

HIS EDUCATION WAS IN THE PUBLIC SCHOOLS OF VERMONT AND NEW YORK, AND
FOR TWO YEARS HE ATTENDED FORDHAM UNIVERSITY IN NEW YORK CITY.  HIS
TASTES WERE NOT ARTISTIC OR LITERARY; HE HAD A DEEP INTEREST IN
SCIENTIFIC STUDY AND EXPERIMENTATION, ESPECIALLY IN THE FIELDS OF
ASTRONOMY, GEOLOGY, ELECTRICITY, PHOTOGRAPHY, RADIO AND AVIATION.  HE
WAS FOND OF THE SEA AND OF YACHTING, AND UNTIL A SERIOUS ILLNESS IN
1921, FOLLOWED BY PERMANENT IMPAIRMENT OF HIS HEALTH, HE WAS INTERESTED
IN ATHLETICS AND OUTDOOR LIFE.  AFTER THAT TIME HE BECAME ESPECIALLY
INTERESTED IN COLLECTING STAMPS, COINS, CURRENCY, AND JEWELS, TO WHICH
HE DEVOTED MUCH ATTENTION.  HE HAD NO INTEREST IN FASHIONABLE OR SOCIAL
LIFE, BUT PREFERRED, AS HE STATED, ASSOCIATING WITH THE COMMON MAN OR
"THE MAN IN THE STREET." 

IN 1892, WHEN HE WAS TWENTY-FOUR YEARS OLD, HIS MOTHER SENT HIM TO
TEXAS TO FORECLOSE A MORTGAGE ON A SHORT LINE OF RAILROAD LOCATED
THERE, LATER KNOWN AS THE TEXAS MIDLAND RAILROAD.  AS THE RESULT OF THE
FORECLOSURE SHE ACQUIRED THE RAILROAD, AND FOR THE LARGER PART OF
GREEN'S TIME UNTIL 1911 HE REMAINED IN TEXAS FOR THE PURPOSE OF LOOKING
AFTER THE MANAGEMENT OF THE ROAD.  IN THAT YEAR HE RETURNED TO LIVE IN
NEW YORK AT THE URGENT REQUEST OF HIS MOTHER, WHO, BECAUSE OF FAILING
HEALTH, DESIRED HIS ASSISTANCE IN THE MANAGEMENT OF HER BUSINESS
AFFAIRS. 

FROM 1911 UNTIL 1921 GREEN CUSTOMARILY MADE TWO TRIPS A YEAR TO
TEXAS, ONE TO ATTEND THE ANNUAL MEETING OF THE RAILROAD AND THE OTHER
TO INSPECT THE ROAD, AND IN ALTERNATE YEARS TO VOTE IN TERRELL, TEXAS,
IN STATE AND MUNICIPAL ELECTIONS.  FROM 1922 TO 1927 HE MADE BUT ONE
ANNUAL VISIT, IN THE SPRING OF EACH YEAR.  AFTER 1923 HE SPENT ONLY TWO
OR THREE DAYS ON EACH VISIT TO TEXAS, IN TERRELL AND ITS VICINITY.  IN
THE YEARS 1924 TO 1927 HE VISITED MARLIN, TEXAS, WHERE HE REMAINED FOR
ABOUT A MONTH EACH YEAR FOR PURPOSES OF MEDICAL TREATMENT.  IN 1928 THE
RAILROAD WAS SOLD.  AFTER THE AGREEMENT FOR SALE WAS MADE IN 1927, HE
MADE NO OTHER VISIT TO DALLAS OR TERRELL, AND HIS ONLY VISIT TO TEXAS
WAS IN 1935, FOR TREATMENT AT A CLINIC IN MARLIN. 

DURING THE PERIOD OF HIS RESIDENCE IN TEXAS, DECEDENT WAS A BACHELOR
AND MAINTAINED DOMESTIC ESTABLISHMENTS AT VARIOUS PLACES.  HE AT FIRST
LIVED IN A HOTEL.  ABOUT 1894 HE MAINTAINED A BACHELOR APARTMENT AT
TERRELL.  FOR A TIME HE ALSO KEPT ROOMS AT A HOTEL IN DALLAS AND THEN
ABOUT 1896 OR 1897 LEASED AN APARTMENT IN THAT CITY.  LATER HE
PURCHASED A BUILDING THERE WHICH HE REMODELLED AND OCCUPIED AS A
DWELLING UNTIL 1911, WHEN THE BUILDING WAS SOLD.  AFTER THAT HE CAUSED
A FRIEND TO RENT A ROOM FOR HIM IN TERRELL, TEXAS, ADMITTEDLY FOR THE
PURPOSE OF PRESERVING HIS RIGHT TO VOTE IN TEXAS.  THE ROOM WAS NEVER
OCCUPIED BY HIM NOR WERE ANY OF HIS POSSESSIONS SENT THERE, EXCEPT A
BOX CONTAINING A PAIR OF TROUSERS AND A VEST.  HE ALSO OWNED A TWO
HUNDRED ACRE EXPERIMENTAL FARM NEAR TERRELL WHERE THERE WERE LIVING
QUARTERS WHICH HE OCCASIONALLY USED.  THE FARM WAS AFTERWARDS SOLD, AND
FROM 1911 ON HE HAD NO DWELLING PLACE IN TEXAS EXCEPT HIS PRIVATE
RAILROAD CAR, WHICH WAS SOLD WITH THE ROAD IN 1927-1928.  UPON HIS
REMOVAL TO NEW YORK IN 1911 ALL OF THE BEST FURNITURE IN THE DALLAS
RESIDENCE WAS PACKED AND SHIPPED TO NEW YORK FOR USE IN HIS DWELLING
THERE.  HIS LIBRARY OF BOOKS ON SCIENTIFIC SUBJECTS WAS GIVEN TO THE
DALLAS PUBLIC LIBRARY.  AT THE TIME OF HIS DEATH HIS ONLY REAL PROPERTY
IN TEXAS CONSISTED OF SOME UNSALEABLE LOTS PERTAINING TO THE RAILROAD
WHICH WERE APPRAISED AT $2,200. 

DURING THE PERIOD OF HIS RESIDENCE IN TEXAS, ASIDE FROM HIS ACTIVE
INTEREST IN THE MANAGEMENT OF THE RAILROAD HE BECAME INTERESTED IN
SCIENTIFIC AND FARM EXPERIMENTATION.  HE ALSO BECAME ACTIVE IN TEXAS
POLITICS, WAS A TEXAS DELEGATE TO THE REPUBLICAN NATIONAL CONVENTION AT
ST. LOUIS, AND BECAME CHAIRMAN OF THE REPUBLICAN STATE EXECUTIVE
COMMITTEE, SERVING IN THAT CAPACITY FOR FOUR YEARS, AND UPON REELECTION
UNTIL 1900.  IN 1906 THE NOMINATION FOR GOVERNOR OF TEXAS ON THE
REPUBLICAN TICKET WAS OFFERED HIM, BUT HE DECLINED THE NOMINATION UPON
THE INSISTENCE OF HIS MOTHER.  HE WAS APPOINTED A COLONEL UPON THE
TEXAS GOVERNOR'S STAFF AND SERVED IN THAT CAPACITY UNTIL JANUARY,
1915.  PRIOR TO 1911 AND UNTIL 1920 HE VOTED IN TEXAS IN STATE AND
NATIONAL ELECTIONS. 

GREEN FREQUENTLY EXPRESSED HIMSELF AS BEING ATTACHED TO THE STATE AND
TO ITS PEOPLE.  WITH FEW EXCEPTIONS AND IN SUBSTANTIALLY ALL DEEDS,
PAPERS, AND LEGAL DOCUMENTS HE DESCRIBED HIMSELF AS OF TERRELL, TEXAS,
AND INSTRUCTED HIS SECRETARY AND OFFICE MANAGER AND HIS ATTORNEYS IN
NEW YORK, MASSACHUSETTS, AND FLORIDA, TO MENTION IN ALL IMPORTANT LEGAL
DOCUMENTS THAT TERRELL WAS HIS LEGAL RESIDENCE.  HE CONTINUED THIS
PRACTICE UNTIL 1935.  IN HIS WILL, EXECUTED IN 1908, IN HIS APPLICATION
FOR A MARRIAGE LICENSE IN 1917, AND IN THE PROBATE PROCEEDINGS
CONNECTED WITH HIS MOTHER'S ESTATE, 1916-1918, HE WAS DESCRIBED AS OF
TERRELL, TEXAS.  IN 1922 HE DECLINED TO CONSIDER RUNNING FOR CONGRESS
IN MASSACHUSETTS BECAUSE HE CLAIMED TO BE A RESIDENT OF TEXAS.  IN 1929
HE STATED HE WOULD NOT BE AVAILABLE FOR APPOINTMENT AS FEDERAL RADIO
COMMISSIONER FROM NEW ENGLAND BECAUSE HE WAS A FORMER REPUBLICAN
NATIONAL COMMITTEEMAN OF TEXAS AND SPENT ONLY THE SUMMER MONTHS IN NEW
ENGLAND.  IN 1935 HE TESTIFIED UNDER OATH IN FLORIDA THAT HIS RESIDENCE
WAS TEXAS, WITH A WINTER HOME IN FLORIDA AND A SUMMER HOME IN NEW
BEDFORD.  IN THAT YEAR HE RETURNED TO THE TEXAS CENTENNIAL COMMITTEE A
CERTIFICATE WHICH DESCRIBED HIM AS OF MASSACHUSETTS, WITH THE
STATEMENT:  "I HAVE NEVER CHANGED MY LEGAL RESIDENCE FROM TERRELL,
TEXAS." 

IF DECLARATIONS WERE ALONE SUFFICIENT TO ESTABLISH DOMICILE, THE
RECORD WOULD LEAVE NO DOUBT THAT GREEN WAS DOMICILED IN TEXAS UNTIL THE
TIME OF HIS DEATH.  BUT IN THIS CONNECTION IT SHOULD BE NOTED THAT
GREEN NEVER PAID AN INCOME TAX OR A PERSONAL PROPERTY TAX ON
INTANGIBLES IN ANY STATE, AND THE SPECIAL MASTER WAS OF OPINION THAT
THE DESIRE TO AVOID TAXATION WAS A CONTROLLING MOTIVE FOR GREEN'S
REPEATED DECLARATIONS THAT HE WAS A RESIDENT OF TEXAS LONG AFTER HE HAD
CEASED TO HAVE AN ABIDING PLACE OR ANY ACTIVE CONNECTION WITH AFFAIRS
IN THAT STATE. 

IN JULY, 1911, GREEN REMOVED HIS HOUSEHOLD BELONGINGS TO NEW YORK
CITY, WHERE HE ESTABLISHED HIS DWELLING PLACE IN A HOUSE AT 5 WEST 90TH
STREET, WHICH WAS OWNED BY THE ESTATE OF HIS GRANDFATHER AND ADJOINED A
HOUSE OCCUPIED BY HIS MOTHER.  HE OPENED AN OFFICE IN NEW YORK CITY,
WHICH REMAINED HIS BUSINESS HEADQUARTERS UNTIL HIS DEATH, AND WITH HIS
MOTHER MAINTAINED A JOINT OFFICE IN HER RESIDENCE.  WHEN GREEN CAME TO
NEW YORK HIS MOTHER SETTLED UPON HIM, AS HIS OWN, PROPERTY VALUED AT
$500,000.  UPON HER DEATH IN 1916 HE BECAME ENTITLED TO AN INTEREST IN
THE ESTATE OF HIS GRANDFATHER AGGREGATING $4,500,000, AND UNDER THE
WILL OF HIS MOTHER HE BECAME ENTITLED TO THE INCOME OF ONE-HALF OF HER
ESTATE FOR A PERIOD OF TEN YEARS, WHEN HE RECEIVED ONE-HALF OF THE
PRINCIPAL, AGGREGATING ABOUT $33,000,000. 

FOLLOWING HIS MOTHER'S DEATH HE WAS MARRIED, ON JULY 10, 1917, TO
MISS MABEL HARLOW.  THE FOLLOWING WINTER THEY REMOVED FROM THE 90TH
STREET HOUSE TO AN APARTMENT IN THE WALDORF HOTEL, WHERE THEY LIVED
WHEN IN NEW YORK UNTIL THE HOTEL WAS DEMOLISHED IN 1921.  THEN THEY
REMOVED TO THE SHERRY NETHERLANDS HOTEL, WHERE THEY RENTED AND USED A
LARGE SUITE.  HE AT FIRST TOOK A TWO YEAR LEASE ON THE APARTMENT, BUT
FROM MAY 1, 1931, THE RENTAL WAS CONTINUED ON A MONTHLY BASIS.  THE
APARTMENTS WERE FURNISHED BY THE HOTELS; DECEDENT'S FURNITURE,
PICTURES, AND PERSONAL BELONGINGS, MUCH OF WHICH HE HAD BROUGHT FROM
TEXAS, REMAINED AT 5 WEST 90TH STREET UNTIL 1921, WHEN MOST OF THEM
WERE REMOVED TO DECEDENT'S PLACE AT ROUND HILLS, MASSACHUSETTS.  IN
1928 THE REMAINDER WAS SENT TO ROUND HILLS AND THE NEW YORK HOUSE
DEMOLISHED. 

DURING THE LAST TEN YEARS OF HIS LIFE HIS APARTMENT IN NEW YORK WAS
USED ONLY AS A TEMPORARY STOPPING PLACE ON HIS TRIPS NORTH AND SOUTH. 
AT HIS DEATH THE FAMILY BELONGINGS IN THE APARTMENT CONSISTED OF SOME
OF HIS MOTHER'S LETTERS, A PORTION OF HIS STAMP COLLECTION, HIS
INTEREST IN WHICH HAD BEEN SLIGHT SINCE 1927, SOME CLOTHING OF MRS.
GREEN'S, AND A FEW PERSONAL BELONGINGS WORTH LESS THAN $1,000.  HIS
TANGIBLE PERSONAL PROPERTY IN NEW YORK AT THE TIME OF HIS DEATH
CONSISTED PRINCIPALLY OF HIS COLLECTION OF JEWELS, COINS, CURRENCY AND
STAMPS, HAVING AN AGGREGATE VALUE OF $1,583,221. 

GREEN NEVER REGISTERED OR ATTEMPTED TO VOTE IN NEW YORK.  IN 1916 HE
WAS ASSESSED THERE FOR PERSONAL PROPERTY TAXES, BUT THE ASSESSMENT WAS
CANCELLED UPON HIS SUBMISSION OF AFFIDAVITS DECLARING THAT HIS LEGAL
RESIDENCE WAS IN TEXAS.  TO THE SUGGESTION OF A FRIEND MADE IN 1917
THAT HE BUILD A HOME ON LONG ISLAND, HE REPLIED THAT HE DID NOT WANT TO
DO SO AS HE DID NOT WISH TO PAY TAXES IN NEW YORK.  AND LATER HE STATED
THAT HE DESIRED TO BUILD ON HIS MOTHER'S PLACE AT ROUND HILLS IN
MASSACHUSETTS.  DURING THE PERIOD FROM 1911 TO 1921 HE WAS ACTIVE IN
BUSINESS AFFAIRS IN NEW YORK.  HE MANAGED HIS OWN FORTUNE, WHICH
AMOUNTED TO APPROXIMATELY $6,000,000 AFTER HIS MOTHER'S DEATH.  HE ALSO
ASSISTED IN MANAGING HER EXTENSIVE BUSINESS INTERESTS AND AFTER HER
DEATH WAS ACTIVELY ENGAGED AS EXECUTOR AND TRUSTEE IN LOOKING AFTER HER
LARGE ESTATE, INCLUDING SEVERAL FAMILY-OWNED HOLDING CORPORATIONS. 
DECEDENT BECAME A DIRECTOR OF A NEW YORK NATIONAL BANK AND A DIRECTOR
OF TWO IMPORTANT TRUST COMPANIES AND REGULARLY ATTENDED THEIR MEETINGS
AND PARTICIPATED IN THEIR AFFAIRS UNTIL ABOUT 1921.  HE MAINTAINED
LARGE DEPOSIT BALANCES IN NEW YORK BANKS; HIS PERSONAL SECURITIES WERE
KEPT IN SAFE DEPOSIT VAULTS THERE.  HE DID NOT ENJOY NEW YORK LIFE AND
SOMETIMES EXPRESSED DISLIKE OF ITS PEOPLE AND BUSINESS PRACTICES. 
AFTER HIS ILLNESS IN NOVEMBER, 1921, ALL OF HIS ACTIVITIES THERE
CEASED.  HE NEVER THEREAFTER ATTENDED TRUSTEES' OR DIRECTORS' MEETINGS,
OR WENT TO HIS NEW YORK OFFICE. 

AFTER HIS MARRIAGE IN 1917 GREEN SPENT A PART OF THE SUMMER NEAR
ROUND HILLS, MASSACHUSETTS, IN THE VICINITY OF DARTMOUTH, WHICH WAS THE
PROPERTY HE HAD INHERITED FROM HIS MOTHER.  ON HIS FIRST VISIT ON A
YACHTING TRIP IN 1917 HE DETERMINED TO DEVELOP THE PROPERTY INTO A
LARGE COUNTRY ESTATE AND BUILD THERE AN IMPOSING RESIDENCE.  WITH THAT
IN VIEW AND WITH THE CONSENT AND APPROVAL OF HIS SISTER HE BEGAN TO
DEVELOP THE PROPERTY IN THE FALL OF THAT YEAR BY CLEARING THE LAND,
CONSTRUCTING BREAKWATERS, WHARVES, WATER TANKS, PUMPING PLANT,
GREENHOUSES AND WORKMEN'S COTTAGES.  FROM THEN UNTIL 1921 DEVELOPMENT
OF THE PROPERTY WAS HIS PRINCIPAL INTEREST AND OCCUPATION.  WHILE THE
WORK WAS GOING FORWARD DECEDENT SPENT MUCH TIME ON HIS YACHT OR AT A
HOTEL IN THE VICINITY.  IN JULY OF 1921 THE HOUSE WAS READY FOR
OCCUPANCY, AND FROM THEN UNTIL SHORTLY BEFORE HIS DEATH HE SPENT MORE
TIME THERE ALMOST EVERY YEAR THAN AT ANY OTHER PLACE, USUALLY COMING TO
ROUND HILLS IMMEDIATELY AFTER JULY 1ST, EVIDENTLY BECAUSE TAXES WERE
ASSESSED AS OF THAT DATE, AND REMAINING JUST SHORT OF SIX MONTHS EACH
YEAR. 

BETWEEN 1917 AND 1926 GREEN EXPENDED ON THE ROUND HILLS ESTATE IN
EXCESS OF $6,688,000.  TO THE LAND INHERITED FROM HIS MOTHER HE ADDED
BY PURCHASE ONE HUNDRED AND FORTY ADJOINING ACRES.  THE HOUSE WAS LARGE
AND IMPOSING - INDEED, SOMEWHAT "INSTITUTIONAL" IN APPEARANCE, THERE
HAVING APPARENTLY BEEN SOME THOUGHT, WHICH HE NEVER CARRIED OUT, OF
CONVERTING IT INTO AN INSTITUTION AS A MEMORIAL TO THE GREEN AND
HOWLAND FAMILIES AFTER HIS OWN AND HIS SISTER'S DEATH.  UPON THE
PROPERTY WERE SOME SIXTY STRUCTURES, INCLUDING THE USUAL OUTBUILDINGS
OF A LARGE COUNTRY ESTATE, SWIMMING POOLS, TENNIS COURTS, RADIO
BROADCASTING STATIONS, AN AIRPORT, AIRSHIP HANGAR AND DOCK.  THE HOUSE
WAS DESIGNED AS A COMMODIOUS RESIDENCE, WITH CAREFULLY PLANNED
ACCOMMODATIONS FOR FAMILY, GUESTS, AND FOR A FULL COMPLEMENT OF
SERVANTS. 

SPECIAL FURNITURE WAS DESIGNED FOR THE HOUSE, BUT FURNISHINGS FROM 5
WEST 90TH STREET IN NEW YORK WERE ALSO BROUGHT TO IT, INCLUDING FAMILY
POSSESSIONS AND HEIRLOOMS, TWO OIL PORTRAITS OF HIS MOTHER, ANOTHER OF
HIS GRANDFATHER, PERSONAL COLLECTIONS OF PRINTS AND ENGRAVINGS OF
WHALING SHIPS AND SCENES, AND FRAMED CERTIFICATES OF HIS MEMBERSHIP IN
VARIOUS HISTORICAL SOCIETIES.  GREEN ASSEMBLED THERE A WELL CHOSEN
LIBRARY OF MISCELLANEOUS AND SCIENTIFIC BOOKS, INCLUDING MANY RARE
VOLUMES ON THE HISTORY OF NEW ENGLAND AND ACCOUNTS OF THE WHALING
INDUSTRY, ON WHICH THE FAMILY FORTUNE HAD BEEN FOUNDED.  IN A VAULT IN
THE BASEMENT WAS ASSEMBLED A SUBSTANTIAL PART OF HIS COLLECTION OF
JEWELRY, COINS, AND STAMPS. 

IN THE SOCIAL LIFE OF THE COUNTRYSIDE HE TOOK NO PART, BUT HE
ASSOCIATED FREELY WITH EMPLOYEES AND TRADESMEN AND VISITORS INTERESTED
IN SCIENTIFIC RESEARCH.  HE DEVELOPED ON A LARGE SCALE HIS INTEREST IN
VARIOUS SCIENTIFIC ACTIVITIES, ESPECIALLY PHOTOGRAPHY, RADIO, AND
AVIATION.  A NUMBER OF HIS BUILDINGS AND RADIO FACILITIES WERE PLACED
AT THE DISPOSAL OF THE MASSACHUSETTS INSTITUTE OF TECHNOLOGY FOR
EXPERIMENTAL PURPOSES, AND HE CONTRIBUTED HIS OWN FUNDS TO THE COST OF
EXPERIMENTS.  ON HIS PROPERTY HE ESTABLISHED AN AIRPORT AND A SCHOOL
FOR AVIATORS.  HE ARRANGED TO HAVE THE "CHARLES W. MORGAN," AN OLD
WHALING SHIP, TRANSFERRED TO WHALING ENSHRINED, INC., TO WHICH HE GAVE
A STRIP OF THE SHORE AT ROUND HILLS WHERE HE ESTABLISHED THE VESSEL AND
MAINTAINED IT AS A MUSEUM WHICH HE KEPT OPEN TO THE PUBLIC.  HIS
GROUNDS AND BATHING BEACH WERE ALSO OPENED TO THE PUBLIC, MEMBERS OF
WHICH VISITED THEM IN LARGE NUMBERS. 

OWING TO HIS FAILING HEALTH MOST OF THESE ACTIVITIES, THOUGH NOT HIS
INTEREST IN THEM, WERE CURTAILED DURING THE LAST THREE YEARS OF HIS
LIFE, BUT HE CONTINUED TO SPEND MOST OF THE SUMMER AND THE EARLY FALL
AT ROUND HILLS UNTIL THE YEAR OF HIS DEATH, AND ALL OF HIS PERSONAL AND
INTIMATE BELONGINGS REMAINED THERE.  HE TOLD A FRIEND THAT HE HOPED TO
BE THERE WHEN HE DIED; AND HIS REMAINS WERE BROUGHT THERE FROM LAKE
PLACID FOR THE FUNERAL SERVICE.  GREEN NEVER VOTED IN MASSACHUSETTS OR
OPENLY ACKNOWLEDGED ROUND HILLS AS HIS LEGAL RESIDENCE, INVARIABLY
GIVING AS HIS REASON THAT HE WISHED TO AVOID PAYING TAXES THERE.  WHEN
A DEMAND WAS MADE UPON HIM BY MASSACHUSETTS OFFICIALS FOR PAYMENT OF
INCOME TAX IN 1928, HE DECLINED TO FILE A RETURN ON THE GROUND THAT HIS
LEGAL RESIDENCE WAS TERRELL, TEXAS.  NO INCOME OR PERSONAL PROPERTY TAX
ON INTANGIBLES WAS PAID BY HIM IN MASSACHUSETTS. 

IN 1923 HE WAS ADVISED BY HIS PHYSICIAN, FOLLOWING AN OPERATION AND
ILLNESS, TO GO TO FLORIDA.  HE SPENT THE FOLLOWING WINTER THERE IN
HOTELS OR UPON BOATS IN THE VICINITY OF MIAMI AND JACKSONVILLE.  IN
APRIL, 1924, HE BOUGHT LAND ON STAR ISLAND, NEAR MIAMI BEACH, AND BEGAN
LANDSCAPING WORK AND CONSTRUCTION OF A DOCK.  IN JANUARY, 1925, HE
RETURNED TO MIAMI BEACH, LIVING ON A HOUSEBOAT NEAR STAR ISLAND FOR
ABOUT THREE AND A HALF MONTHS.  WHILE THERE HE PURCHASED ADDITIONAL
LOTS AND BEGAN THE CONSTRUCTION OF A DWELLING. 

PART OF THE FOLLOWING WINTER WAS SPENT ON HIS HOUSEBOAT NEAR STAR
ISLAND, AND THE HOUSE WAS FINALLY COMPLETED AND OCCUPIED AS A WINTER
RESIDENCE IN 1927.  IN THE FOLLOWING YEARS, UNTIL HIS DEATH, HE SPENT
ABOUT FOUR AND A HALF MONTHS EACH WINTER AT STAR ISLAND, BETWEEN
JANUARY AND MAY.  THE HOUSE, COSTING OVER $600,000, WAS FULLY EQUIPPED
AS A WINTER RESIDENCE, WITH AMPLE ACCOMMODATIONS FOR FAMILY, GUESTS,
AND SERVANTS.  HIS TOTAL EXPENDITURES THERE AMOUNTED TO ABOUT
$1,500,000.  THE HOUSE WAS FURNISHED WITH NEW SPECIALLY MADE FURNITURE,
AND IT CONTAINED, WITH NEGLIGIBLE EXCEPTIONS, NO PICTURES, BOOKS,
FURNITURE, OR MEMENTOS OF INTIMATE PERSONAL OR FAMILY ASSOCIATION.  AS
IN HIS OTHER PLACES OF RESIDENCE, HE TOOK LITTLE PART IN THE SOCIAL
LIFE OF THE COMMUNITY.  IN FLORIDA HE NEVER CARRIED ON ANY OF THE
ACTIVITIES OR EXPERIMENTS WITH WHICH HE HAD OCCUPIED HIMSELF IN TEXAS
OR MASSACHUSETTS.  HIS LIFE IN FLORIDA WAS TYPICAL, ON THE WHOLE, OF A
SEMI-INVALID SEEKING HEALTH THERE DURING THE WINTER MONTHS.  HE BUSIED
HIMSELF FOR THE MOST PART WITH AUTOMOBILE RIDES, CRUISING IN NEARBY
WATERS, AND IN WORKING ON HIS COLLECTIONS, PARTS OF WHICH HE HAD
BROUGHT WITH HIM FROM MASSACHUSETTS.    GREEN OCCASIONALLY SPOKE TO
FRIENDS OF FLORIDA AS HIS HOME, SAYING TO ONE:  "THIS IS MY HOME AND I
EXPECT TO LIVE HERE THE REST OF MY DAYS."  HE NEVER VOTED IN FLORIDA OR
PAID INTANGIBLE PROPERTY TAXES THERE, ALTHOUGH SUBJECT TO SUCH TAXES IF
A RESIDENT; IN 1933 HE DECLARED TO THE LOCAL TAX ASSESSOR THAT HIS
LEGAL RESIDENCE WAS IN ANOTHER STATE.  IN 1931 AND AGAIN IN 1933 HE WAS
ADVISED BY A FRIEND TO CHANGE HIS LEGAL RESIDENCE FROM TEXAS TO FLORIDA
BECAUSE OF PENDING TAX LEGISLATION IN TEXAS.  HIS ATTORNEY SUGGESTED
THAT AS HE HAD A RESIDENCE IN FLORIDA IT WOULD ONLY BE NECESSARY TO
MAKE ANNOUNCEMENT OF HIS INTENTION.  BUT HE TOOK NO SUCH ACTION AND IN
MARCH OF 1935 TESTIFIED IN A JUDICIAL PROCEEDING IN FLORIDA THAT TEXAS
WAS HIS LEGAL RESIDENCE. 

THE FOUR PERSONS NEAREST TO DECEDENT IN LIFE, HIS WIFE, HIS SISTER,
HIS OFFICE MANAGER, AND HIS SECRETARY, WERE ABLE TO THROW LITTLE LIGHT
ON HIS PURPOSES AND INTENTION WITH RESPECT TO HIS DOMICILE.  MRS.
GREEN, WHO WAS A PARTY TO THE PRESENT SUIT, ASSERTED BY HER ANSWER THAT
TEXAS WAS THE DOMICILE OF HERSELF AND HER HUSBAND.  AFTER SETTLEMENT
WITH MRS. WILKS, THE SISTER, OF HER CLAIMS UPON THE ESTATE, THE SUIT
WAS DISCONTINUED AS TO MRS. GREEN.  THERE IS NOTHING IN THE RECORD TO
INDICATE THAT SHE HAS SINCE CLAIMED OR RESUMED HER DOMICILE IN TEXAS. 
ON THE CONTRARY, SHE REMAINED AT ROUND HILLS FOR SIX MONTHS AFTER
GREEN'S DEATH.  THE SPECIAL MASTER CONCLUDED THAT HER POSITION WITH
REFERENCE TO HER HUSBAND'S DOMICILE WAS INFLUENCED BY THE ADVANTAGES
WHICH MIGHT ACCRUE TO HER FROM THE COMMUNITY PROPERTY LAWS OF TEXAS. 
THE SISTER, BY HER ANSWER IN THIS CASE AS WELL AS IN THE NEW YORK
PROCEEDING WHERE SHE CLAIMED UNDER HER BROTHER'S WILL, IN WHICH HE
DECLARED TEXAS TO BE HIS LEGAL RESIDENCE, DENIED THAT HER BROTHER WAS A
RESIDENT OF TEXAS, AND IN THIS PROCEEDING SHE ASSERTS THAT HIS DOMICILE
AT THE TIME OF HIS DEATH WAS IN MASSACHUSETTS.  NEITHER HIS WIFE NOR
HIS SISTER HAS GIVEN ANY EVIDENCE TO EXPLAIN THE INCONSISTENCY BETWEEN
GREEN'S DECLARATIONS AND HIS ACTIONS OR THE CONFLICT BETWEEN THEMSELVES
UPON THE ISSUE OF DOMICILE.  ALL DECEDENT'S BOOKS AND PAPERS WERE MADE
AVAILABLE BY HIS OFFICE MANAGER, WHO TESTIFIED THAT FROM THE INCEPTION
OF THEIR BUSINESS ASSOCIATION IN NEW YORK UNTIL DECEDENT'S DEATH, HE
CLAIMED TEXAS AS HIS LEGAL RESIDENCE AND GAVE INSTRUCTIONS THAT IN ALL
FORMAL DOCUMENTS HIS PERMANENT RESIDENCE BE STATED AS TEXAS.  HIS
SECRETARY TESTIFIED TO THE SAME EFFECT.  NEITHER WAS ABLE TO GIVE ANY
INTIMATION OF THE REAL INTENTION BEHIND DECEDENT'S DECLARATIONS AND
ACTIONS EXCEPT WHAT MAY BE INFERRED FROM HIS EVIDENT DESIRE AND
FREQUENTLY ANNOUNCED PURPOSE TO ESCAPE OR MINIMIZE TAXES. 

RESIDENCE IN FACT, COUPLED WITH THE PURPOSE TO MAKE THE PLACE OF
RESIDENCE ONE'S HOME, ARE THE ESSENTIAL ELEMENTS OF DOMICILE.  MITCHELL
V. UNITED STATES, 21 WALL.  350; PANNILL V. ROANOKE TIMES CO., 252 F.
910; BEEKMAN V. BEEKMAN, 53 FLA. 858; 43 SO. 923; BABCOCK V. SLATER,
212 MASS. 434; 99 N.E. 173; MATTER OF NEWCOMB, 192 N.Y. 238; 84 N.E.
950; BEALE, CONFLICT OF LAWS, SEC. 15.2.  WE CONCLUDE, AS THE SPECIAL
MASTER FOUND, THAT GREEN CEASED TO HAVE A PLACE OF RESIDENCE IN TEXAS
AFTER 1911.  ABOUT 1914 HE GAVE UP HIS NOMINAL PLACE OF ABODE IN THE
ROOM WHICH HE HAD RENTED IN TERRELL, TEXAS, AND WHICH IN FACT HE HAD
NEVER OCCUPIED.  AFTER THAT HE WAS NEVER IDENTIFIED IN FACT WITH ANY
PLACE OF RESIDENCE IN TEXAS, AND THERE WAS NOTHING IN HIS LIFE TO
CONNECT HIM WITH A TEXAS HOME OTHER THAN HIS FREQUENT STATEMENTS THAT
HIS LEGAL RESIDENCE WAS IN TEXAS.  WHILE ONE'S STATEMENTS MAY SUPPLY
EVIDENCE OF THE INTENTION REQUISITE TO ESTABLISH DOMICILE AT A GIVEN
PLACE OF RESIDENCE, THEY CANNOT SUPPLY THE FACT OF RESIDENCE THERE;
MATTER OF NEWCOMB, SUPRA, 250; MATTER OF TROWBRIDGE, 266 N.Y. 283, 292;
194 N.E. 756; AND THEY ARE OF SLIGHT WEIGHT WHEN THEY CONFLICT WITH THE
FACT.  FEEHAN V. TAX COMM'R, 237 MASS. 169, 171; 129 N.E. 292;
DORRANCE'S ESTATE, 309 PA. 151; 163 A. 303.  THIS IS THE MORE SO WHERE,
AS HERE, DECEDENT'S DECLARATIONS ARE SHOWN TO HAVE BEEN INSPIRED BY THE
DESIRE TO ESTABLISH A NOMINAL RESIDENCE FOR TAX PURPOSES, DIFFERENT
FROM HIS ACTUAL RESIDENCE IN FACT.  THAYER V. BOSTON, 124 MASS. 132;
FEEHAN V. TAX COMM'R, SUPRA; MATTER OF TROWBRIDGE, SUPRA; BEALE, SUPRA,
SEC. 41C.  IN SUCH CIRCUMSTANCES THE ACTUAL FACT AS TO THE PLACE OF
RESIDENCE AND DECEDENT'S REAL ATTITUDE AND INTENTION WITH RESPECT TO IT
AS DISCLOSED BY HIS ENTIRE COURSE OF CONDUCT ARE THE CONTROLLING
FACTORS IN ASCERTAINING HIS DOMICILE.  THAYER V. BOSTON, SUPRA.  WHEN
ONE INTENDS THE FACTS TO WHICH THE LAW ATTACHES CONSEQUENCES, HE MUST
ABIDE THE CONSEQUENCES WHETHER INTENDED OR NOT.  NATIONAL CITY BANK V.
HOTCHKISS, 231 U.S. 50, 56; DICKINSON V. BROOKLINE, 181 MASS. 195, 196;
63 N.E. 331. 

WHATEVER FLOATING INTENTION GREEN MAY HAVE HAD AFTER 1911 TO RETURN
TO TEXAS AND TO MAKE HIS HOME THERE, IT IS PLAIN THAT IT RECEDED INTO
THE BACKGROUND AFTER HIS MOTHER'S DEATH AND HAD COMPLETELY VANISHED
WHEN HE BEGAN TO BUILD UP HIS EXTENSIVE ESTATE AT ROUND HILLS IN
MASSACHUSETTS.  WHEN HE HAD ESTABLISHED HIMSELF THERE ALL THE
CIRCUMSTANCES OF HIS LIFE INDICATED THAT HIS REAL ATTITUDE AND
INTENTION WITH RESPECT TO HIS RESIDENCE THERE WERE TO MAKE IT HIS
PRINCIPAL HOME OR ABIDING PLACE TO THE EXCLUSION OF OTHERS.  THIS IS
CLEARLY INDICATED BY THE FACT THAT IT WAS THE PLACE MOST ASSOCIATED
WITH HIS FAMILY HISTORY, BY THE SCALE ON WHICH HE BUILT, BY HIS
ASSEMBLING THERE THE FURNISHINGS AND OBJECTS CLOSELY ASSOCIATED WITH
HIS EARLIER HOMES AND WITH HIS FAMILY LIFE, AND BY CENTERING THERE ALL
THE ACTIVITIES RELATED TO HIS CHIEF INTERESTS - HIS MECHANICAL AND
SCIENTIFIC EXPERIMENTS, HIS DEVELOPMENT OF RADIO AND AVIATION, AND HIS
EFFORTS TO PRESERVE RECORDS AND MEMENTOS OF THE WHALING INDUSTRY WITH
WHICH HIS MOTHER'S FAMILY HAD BEEN ASSOCIATED.  HE SPENT MORE TIME
THERE THAN AT ANY OTHER PLACE, EVIDENTLY CURTAILING HIS STAYS ONLY TO
AVOID THE POSSIBLE DANGER OF BEING SUBJECTED TO MASSACHUSETTS
TAXATION.  HIS CONCEPTION OF LEGAL RESIDENCE OR DOMICILE AS A MENTAL
STATE WHEREBY HE COULD OBTAIN CERTAIN POLITICAL ADVANTAGES AND FREEDOM
FROM TAXATION DOES NOT WEIGH AGAINST THIS CONCLUSION.  HE COULD NOT
ELECT TO MAKE HIS HOME IN ONE PLACE IN POINT OF INTEREST AND ATTACHMENT
AND FOR THE GENERAL PURPOSES OF LIFE, AND IN ANOTHER, WHERE HE IN FACT
HAD NO RESIDENCE, FOR THE PURPOSE OF TAXATION.  FEEHAN V. TAX COMM'R,
SUPRA, 171; 129 N.E. 292; MATTER OF TROWBRIDGE, SUPRA. 

THERE IS LITTLE TO SUPPORT THE CONTENTION THAT GREEN EVER INTENDED TO
MAKE HIS PERMANENT HOME IN NEW YORK.  THE EXIGENCIES OF CARING FOR HIS
MOTHER AND HER PROPERTY AND OF MANAGING HER ESTATE AFTER HER DEATH
DEMANDED HIS PRESENCE THERE.  BUT APART FROM THESE DEMANDS LIFE THERE
GAVE HIM NO OPPORTUNITY TO GRATIFY HIS SPECIAL TASTES AND INTERESTS. 
THE NEAREST SEMBLANCE TO A HOME THERE, 5 WEST 90TH STREET, WAS
ABANDONED WHEN HE REMOVED ITS FURNISHINGS TO ROUND HILLS.  AFTER THAT
NEW YORK SAW LITTLE OF HIM, AND THERE WAS LITTLE IN HIS LIFE TO SUGGEST
THAT HE TREATED IT OR IN HIS OWN MIND REGARDED IT AS HIS REAL HOME OR
ABIDING PLACE.  WHATEVER HIS PURPOSE MAY HAVE BEEN BEFORE THAT TIME,
AFTER THE OCCUPANCY OF THE ROUND HILLS RESIDENCE THE PHYSICAL FACTS OF
RESIDENCE UNITED WITH THE MAJOR INTERESTS OF HIS LIFE TO FIX UPON THAT
AS HIS PLACE OF DOMICILE.  GILBERT V. DAVID, 235 U.S. 561, 570.  IN
POINT OF FACT AND PURPOSE IT BECAME HIS "PREEMINENT HEADQUARTERS,"
WHICH IS THE ESSENCE OF TECHNICAL DOMICILE.  WILLIAMSON V. OSENTON, 232
U.S. 619, 625. 

THE RETENTION OF HIS APARTMENT AT THE SHERRY NETHERLANDS HOTEL IN NEW
YORK, UPON TEMPORARY LEASE, AND HIS OCCUPATION OF IT DURING THE LATER
YEARS OF HIS LIFE FOR SHORT STAYS WHEN PASSING THROUGH NEW YORK ON HIS
WAY TO AND FROM FLORIDA, ARE WITHOUT WEIGHT TO TURN THE SCALES AGAINST
THE PREPONDERATING EVIDENCE THAT HIS REAL HOME WAS IN MASSACHUSETTS. 
FROM 1921 ON THE NEW YORK APARTMENT FURNISHED NONE OF THE PHYSICAL
ASPECTS OF A HOME, AND EVIDENCE IS WANTING THAT THE DECEASED EVER
REGARDED OR TREATED IT AS SUCH. 

PROOF IS WANTING ALSO THAT THE DOMICILE ESTABLISHED IN MASSACHUSETTS
WAS ABANDONED IN FAVOR OF THE FLORIDA HOUSE WHICH HE BUILT THERE IN
1927.  FLORIDA ARGUES THE SUPERIOR ATTACTIVENESS AND MERITS OF THAT
STATE FOR PURPOSES OF A HOME OVER THE MORE AUSTERE ENVIRONMENT OF ROUND
HILLS, BUT THERE IS LITTLE IN THE RECORD TO SUGGEST THAT SUCH AN APPEAL
WAS PERSUASIVE TO DECEDENT OR THAT ROUND HILLS HAD CEASED TO BE WHAT IT
BECAME WHEN HE ESTABLISHED HIMSELF THERE - FIRST IN HIS INTEREST AND
ATTACHMENT.  IN SUCH CIRCUMSTANCES FLORIDA CARRIES THE BURDEN OF
SHOWING THAT THE EARLIER DOMICILE WAS ABANDONED IN FAVOR OF A LATER
ONE.  MITCHELL V. UNITED STATES, SUPRA, 352; ANDERSON V. WATT, 138 U.S.
694, 706; MATTER OF NEWCOMB, SUPRA, 250; BEALE, SUPRA, SEC. 41A.  THAT
BURDEN IS NOT SUSTAINED BY SHOWING A PERIOD OF WINTER RESIDENCE THERE
IN OBEDIENCE TO THE DEMANDS OF HEALTH, IN THE ABSENCE THERE OF THE
ACTIVITIES ASSOCIATED WITH DECEDENT'S CHIEF INTERESTS AND OF THE
OBJECTS OF THOSE INTERESTS AND OF INTIMATE FAMILY ASSOCIATION, WITH
WHICH HE HAD SURROUNDED HIMSELF AT ROUND HILLS. 

THE REPORT OF THE SPECIAL MASTER IS CONFIRMED.  THE SUBSTANCE OF THE
SPECIAL MASTER'S RECOMMENDATION FOR A DECREE WILL BE ADOPTED AND THE
PARTIES MAY SUBMIT A PROPOSED FORM OF DECREE.  SO ORDERED. 

FN1  THE ALLEGATIONS ARE THAT ON JULY 28, 1936, DECEDENT'S WIFE WAS
APPOINTED TEMPORARY ADMINISTRATRIX OF DECEDENT'S ESTATE IN TEXAS ON AN
ALLEGATION THAT GREEN HAD DIED INTESTATE AND WAS DOMICILED AT DEATH IN
TEXAS; THAT ON AUGUST 1, 1936, A PROCEEDING WAS BEGUN BY DECEDENT'S
SISTER IN THE SURROGATE'S COURT OF ESSEX COUNTY, NEW YORK, FOR THE
PROBATE OF DECEDENT'S WILL AND FOR HER CONFIRMATION AS THE EXECUTRIX
NAMED IN THE WILL, IN WHICH PROCEEDING SHE ALLEGED THAT DECEDENT, A NON
RESIDENT OF NEW YORK, HAD DIED THERE, LEAVING PERSONAL PROPERTY LOCATED
IN THE STATE, AND IN WHICH PROCEEDING A TEMPORARY ADMINISTRATOR WAS
APPOINTED AND DECEDENT'S WIFE AND THE NEW YORK TAX COMMISSIONER ENTERED
THEIR APPEARANCES; THAT ON AUGUST 31, 1936, DECEDENT'S WIFE COMMENCED
AN ACTION IN THE UNITED STATES DISTRICT COURT FOR NORTHERN TEXAS
AGAINST DECEDENT'S SISTER TO DETERMINE THE RIGHTS OF THE FORMER IN THE
ESTATE OF DECEDENT BY REASON OF AN ALLEGED ANTENUPTIAL AGREEMENT WHICH
PURPORTED TO EXCLUDE THE WIFE FROM ANY INTEREST IN DECEDENT'S PROPERTY;
THAT ON OCTOBER 21, 1936, ON APPLICATION OF THE MASSACHUSETTS
COMMISSIONER OF CORPORATIONS AND TAXATION, A SPECIAL ADMINISTRATOR OF
THE ESTATE OF DECEDENT WAS APPOINTED BY A MASSACHUSETTS PROBATE COURT
TO TAKE POSSESSION OF AND CONSERVE DECEDENT'S PROPERTY IN THAT
COMMONWEALTH; AND THAT ON JANUARY 4, 1937, THE COUNTY JUDGES' COURT OF
DADE COUNTY, FLORIDA, APPOINTED DECEDENT'S WIDOW ADMINISTRATRIX OF THE
ESTATE OF HER HUSBAND LOCATED IN FLORIDA. 

FN2  THE SPECIAL MASTER HAS FOUND AS FOLLOWS:  THE NET ESTATE, AFTER
PAYMENT OF DEBTS AND ADMINISTRATION EXPENSES OTHER THAN DEATH TAXES,
WILL AMOUNT TO $36,137,335; AND THE TANGIBLE PROPERTY TAXABLE IN THE
STATE OF ITS SITUS IS AS FOLLOWS: 

TEXAS ..................................     $2,220.00 

FLORIDA ................................    222,276.00 

NEW YORK ...............................  1,583,221.00 

MASSACHUSETTS ..........................  2,498,707.00 

DECEDENT'S INTANGIBLES AT THE TIME OF HIS DEATH HAD A VALUE OF
$35,831,303.  THE PAPER EVIDENCES OF DECEDENT'S INTANGIBLES WERE
LOCATED OUTSIDE OF THE STATES OF TEXAS, FLORIDA, AND MASSACHUSETTS. 
"THE AGGREGATE VALUE OF THE SHARES OF STOCK IN AND OBLIGATIONS OF
CORPORATIONS AND ASSOCIATIONS ORGANIZED OR HAVING A PRINCIPAL PLACE OF
BUSINESS IN TEXAS, MASSACHUSETTS AND FLORIDA, RESPECTIVELY, AND OF THE
OBLIGATIONS OF PERSONS RESIDING IN SAID STATES AND OF THE OBLIGATIONS
OF SAID STATES AND POLITICAL SUBDIVISIONS THEREOF, TOGETHER WITH THE
VALUE OF THE REAL ESTATE AND TANGIBLE PROPERTY IN TEXAS, MASSACHUSETTS
AND FLORIDA, RESPECTIVELY, IS LESS THAN THE AMOUNT OF THE TAX CLAIMED
BY EACH OF SAID STATES AND THE AMOUNT OF SUCH TAX CLAIMED BY TEXAS,
MASSACHUSETTS AND FLORIDA, RESPECTIVELY, GREATLY EXCEEDS THE VALUE OF
THE PROPERTY SUBJECT TO THE JURISDICTION OF THEIR RESPECTIVE COURTS AND
FROM WHICH THE TAX MIGHT BE COLLECTED IN ANY PROCEEDING IN SAID
COURTS."  THE SPECIAL MASTER FOUND THAT THE DEATH TAXES DUE TO THE
UNITED STATES, AND DUE TO EACH STATE, IF ITS CONTENTIONS BE SUSTAINED,
ARE AS FOLLOWS: 

UNITED STATES ...........................  $17,520,987 

TEXAS ...................................    4,685,057 

FLORIDA .................................    4,663,857 

NEW YORK ................................    5,910,301 

MASSACHUSETTS ...........................    4,947,008

   TOTAL ..............................  $37,727,213 

THIS EXCEEDS THE TOTAL NET ESTATE BY THE SUM OF $1,589,877.  IN
ADDITION THE STATE OF NEW YORK ASSERTS A CLAIM FOR UNPAID PERSONAL
INCOME TAXES OF $920,827. 

OPINION OF MR. JUSTICE FRANKFURTER. 

THE AUTHORITY WHICH THE CONSTITUTION HAS COMMITTED TO THIS COURT OVER
"CONTROVERSIES BETWEEN TWO OR MORE STATES," SERVES IMPORTANT ENDS IN
THE WORKING OF OUR FEDERALISM.  BUT THERE ARE PRACTICAL LIMITS TO THE
EFFICACY OF THE ADJUDICATORY PROCESS IN THE ADJUSTMENT OF INTERSTATE
CONTROVERSIES.  THE LIMITATIONS OF LITIGATION - ITS EPISODIC CHARACTER,
ITS NECESSARILY RESTRICTED SCOPE OF INQUIRY, ITS CONFINED REGARD FOR
CONSIDERATIONS OF POLICY, ITS DEPENDENCE ON THE CONTINGENCIES OF A
PARTICULAR RECORD, AND OTHER CIRCUMSCRIBING FACTORS - OFTEN DENATURE
AND EVEN MUTILATE THE ACTUALITIES OF A PROBLEM AND THEREBY RENDER THE
LITIGIOUS PROCESS UNSUITED FOR ITS SOLUTION.  CONSIDERATIONS SUCH AS
THESE HAVE FROM TIME TO TIME LED THIS COURT OR SOME OF ITS MOST
DISTINGUISHED MEMBERS EITHER TO DEPRECATE RESORT TO THIS COURT BY
STATES FOR SETTLEMENT OF THEIR CONTROVERSIES (SEE NEW YORK V. NEW
JERSEY, 256 U.S. 296, 313), OR TO OPPOSE ASSUMPTION OF JURISDICTION
(SEE MR. CHIEF JUSTICE TANEY IN PENNSYLVANIA V. WHEELING BRIDGE CO., 13
HOW.  518, 579, 592, IN CONNECTION WITH THE ACT OF AUGUST 31, 1852(10
STAT. 112), AND PENNSYLVANIA V. WHEELING BRIDGE CO., 18 HOW.  421; MR.
JUSTICE BRANDEIS IN PENNSYLVANIA V. WEST VIRGINIA, 262 U.S. 553, 605). 
FN1 

THE PRESUPPOSITION OF JURISDICTION IN THIS CASE IS THE COMMON LAW
DOCTRINE OF A SINGLE DOMICILIARY STATUS.  THAT FOR PURPOSES OF LEGAL
RIGHTS AND LIABILITIES A PERSON MUST HAVE ONE DOMICILE, AND CAN HAVE
ONLY ONE, IS AN HISTORIC RULE OF THE COMMON LAW AND JUSTIFIED BY MUCH
GOOD SENSE.  NEVERTHELESS, IT OFTEN REPRESENTS A FICTION.  CERTAINLY IN
MANY SITUATIONS THE DETERMINATION OF A MAN'S DOMICILE IS BY NO MEANS
THE ESTABLISHMENT OF AN EVENT OR A FACT THAT EXISTS IN NATURE.  EVEN
ASSUMING THAT THERE IS GENERAL AGREEMENT AS TO THE ELEMENTS WHICH IN
COMBINATION CONSTITUTE DOMICILE, A SLIGHT SHIFT OF EMPHASIS IN APPLYING
THE FORMULA PRODUCES CONTRADICTORY RESULTS.  BUT, ON THE WHOLE, THE
DOCTRINE OF DOMICILE HAS ADEQUATELY SERVED AS A PRACTICAL WORKING RULE
IN THE SIMPLER SOCIETIES OUT OF WHICH IT AROSE.  MORE PARTICULARLY, ITS
DIFFICULTIES OF APPLICATION WERE CIRCUMSCRIBED WHEN WEALTH
PREDOMINANTLY CONSISTED OF REALTY AND TANGIBLES, AND WHEN RESTRICTED
MODES OF TRANSPORTATION AND COMMUNICATION CONDITIONED FIXITY OF
RESIDENCE.  IN VIEW OF THE ENORMOUS EXTENT TO WHICH INTANGIBLES NOW
CONSTITUTE WEALTH, AND THE INCREASING MOBILITY OF MEN, PARTICULARLY MEN
OF SUBSTANCE, THE NECESSITY OF A SINGLE HEADQUARTERS FOR ALL LEGAL
PURPOSES, PARTICULARLY FOR PURPOSES OF TAXATION, TENDS TO BE A LESS AND
LESS USEFUL FICTION.  IN THE SETTING OF MODERN CIRCUMSTANCES, THE
INFLEXIBLE DOCTRINE OF DOMICILE - ONE MAN, ONE HOME - IS IN DANGER OF
BECOMING A SOCIAL ANACHRONISM.  RECENT APPLICATIONS AND MODIFICATIONS
OF THIS RULE TO SATISFY THE VAGUE CONTOURS OF THE DUE PROCESS CLAUSE
HAVE HARDLY MITIGATED ITS INADEQUACIES FOR OUR DAY.  E.G., FRICK V.
PENNSYLVANIA, 268 U.S. 473; BLODGETT V. SILBERMAN, 277 U.S. 1; FARMERS
LOAN & TRUST CO. V. MINNESOTA, 280 U.S. 204; FIRST NATIONAL BANK V.
MAINE, 284 U.S. 312. 

THE FACTS IN THIS CASE DOUBTLESS PRESENT A BIZARRE STORY.  BUT IN
GREEN'S PEREGRINATIONS FROM STATE TO STATE, IN THE MULTIPLICITY OF HIS
RESIDENCES, AND IN THE CONFLICTING APPEALS WHICH VARIOUS STATES MADE
UPON HIS INTERESTS FROM TIME TO TIME, THE CASE IS HARDLY UNIQUE NOR ARE
ANALOGUES TO IT UNLIKELY TO APPEAR IN THE FUTURE.  AS A RESULT, THIS
COURT IS ASKED TO DETERMINE THE CONFLICTING CLAIMS OF DIFFERENT STATES
OF THE UNION TO A SHARE OF THE ESTATE OF INDIVIDUALS WHO, AS A MATTER
OF HARD FACT, AT DIFFERENT PERIODS AND CONTEMPORANEOUSLY INVOKED AND
ENJOYED SUCH BENEFITS AS THE EXISTENCE OF STATE GOVERNMENTS CONFER.  IT
IS ASKED TO DO SO BY APPLYING AN OLD DOCTRINE OF LIMITED VALIDITY TO
MODERN CIRCUMSTANCES WHEREBY, THROUGH THE ELUSIVE SEARCH FOR AN OFTEN
NON-EXISTENT FACT CALLED DOMICILE, ONLY ONE STATE TO THE EXCLUSION OF
ALL OTHERS WOULD BE ALLOWED TO LEVY A TAX.  THE INHERENT DIFFICULTIES
OF THIS PROBLEM HAVE BEEN WIDELY RECOGNIZED.  FN2  THE OLD FORMULAS ARE
SIMPLY INADEQUATE TO THE NEW SITUATION.  ON THE OTHER HAND, IT IS NOT
FOR THIS COURT IN THESE CASES OF MULTIPLE RESIDENCES TO EVOLVE NEW
TAXING POLICIES BASED ON MORE EQUITABLE CONSIDERATIONS THAN THE ALL-OR
NOTHING CONSEQUENCE OF THE OLD DOMICILIARY RULE. 

I AM NOT UNAWARE OF THE DILEMMA PRESENTED BY SUCH A SITUATION AS THE
DORRANCE LITIGATION.  FN3 THE CIRCUMSTANCES ATTENDING THE GREEN ESTATE
DO NOT PRECLUDE LIKE POSSIBILITIES.  BUT MERELY BECAUSE NO OTHER MEANS
THAN LITIGATION HAVE AS YET BEEN EVOLVED TO ADJUST THE CONFLICTING
CLAIMS OF SEVERAL STATES IN A SINGLE ESTATE IS NOT SUFFICIENT REASON
FOR UTILIZING AS A BASIS OF OUR JURISDICTION OVERSIMPLIFIED FORMULAS OF
THE PAST THAT HAVE LARGELY LOST THEIR RELEVANCE IN THE CONTEMPORARY
CONTEXT. 

THE CONTROLLING ASSUMPTION IN TAKING JURISDICTION IN THIS CASE IS
THAT THE ASCERTAINMENT OF A SINGLE DOMICILE FOR GREEN IS MERELY THE
DETERMINATION OF A FACT.  THE AUXILIARY ASSUMPTION IS THE EXISTENCE OF
SOLID DANGER THAT THE HIGHEST COURTS OF FOUR STATES WILL ASCERTAIN THIS
FACT IN FOUR DIFFERENT WAYS.  TEXAS HAS NO STANDING HERE EXCEPT ON THE
BASIS THAT THREE STATE COURTS WILL DESPOIL HER OF HER RIGHTS BY LEAVING
NO ASSETS IN THE ESTATE OUT OF WHICH TO SATISFY HER CLAIM.  BUT THE
FACT THAT THE POLITICAL OFFICERS OF FOUR STATES MAKE CLAIMS TO AN
ESTATE SO AS TO SAFEGUARD ANY POSSIBLE INTEREST, IS HARDLY A
SUBSTANTIAL REASON FOR ASSUMING THAT THEIR JUDICIARIES WILL SANCTION
THE CLAIMS. 

IT IS NOT TO BE ASSUMED THAT THE STATE COURTS WILL MAKE FINDINGS
DICTATED SOLELY BY FISCAL ADVANTAGES TO THEIR STATES.  THE CONTRARY
ASSUMPTION MUST BE MADE - AND THE ASSUMPTION RESTS ON ADJUDICATED
EXPERIENCE, E.G., MATTER OF TROWBRIDGE, 266 N.Y. 283; 194 N.E. 756.  TO
THE EXTENT THAT THERE IS DANGER THAT OUT OF THE SAME EVENTS FOUR STATE
COURTS WILL SPELL FOUR DIFFERENT DOMICILES, IT IS INHERENT IN THE
SEARCH FOR A DOMICILIARY STATUS.  THE RESULT IS ARRIVED AT NOT THROUGH
ASCERTAINMENT OF AN EXTERNAL FACT BUT BY ATTRIBUTIONS MADE AS A MATTER
OF LAW TO SATISFY THE SUPPOSED ABSTRACT LEGAL REQUIREMENT OF A SINGLE
DOMICILE NO MATTER WHAT THE ACTUALITIES OF HUMAN BEHAVIOR MAY BE.  EVEN
A SMALL CHANGE OF PORTIONS IN THE ADMIXTURE OF FACTORS WHICH IN
COMBINATION YIELD THE LEGAL CONCEPT OF DOMICILE, MAY PLACE THE DOMICILE
IN ONE STATE RATHER THAN ANOTHER AND, THEREBY, GIVE ESTATE DUTIES TO
THIS STATE RATHER THAN THAT.  BUT THE STATE TREASURIES ARE NOT ALONE
UNDER POWERFUL MOTIVES TO EXPLOIT THE DOCTRINE OF DOMICILE.  THE TAX
SYSTEMS OF DIFFERENT STATES HAVE VARYING DEGREES OF ATTRACTION FOR
THOSE IN CONTROL OF AN ESTATE, AND IT IS TO THEIR NATURAL INTEREST TO
SEEK A SINGLE, INCLUSIVE DISPOSITION OF THE ELUSIVE ISSUE OF DOMICILE
BY HAVING THE ORIGINAL JURISDICTION OF THIS COURT INVOKED. 

IT IS HARDLY AN ANSWER THAT THIS COURT CAN PROTECT ITSELF AGAINST
FEIGNED CONTROVERSIES.  THE DIFFICULTY IS THAT IN THESE MODERN MULTIPLE
RESIDENCE SITUATIONS THE ISSUE OF DOMICILE IS TOO OFTEN AN INHERENTLY
FEIGNED ISSUE.  TWO STATE COURTS CAN VERY LEGITIMATELY FIND TWO
DIFFERENT DOMICILES, IN THAT TWO EQUALLY COMPETENT TRIBUNALS UTILIZING
THE SAME OUTWARD FACTS IN THE ALEMBIC OF THE SAME COMMON LAW CONCEPT OF
DOMICILE MAY EASILY DISTIL CONTRADICTORY CONCLUSIONS.  MERELY TO AVOID
SUCH A CONFLICT IS NOT ENOUGH TO GIVE JURISDICTION.  FN4  THE VARIANT
THAT THIS CASE PRESENTS IS THE ALLEGATION THAT IF THE CLAIMS OF ALL
FOUR STATES PREVAIL THE ESTATE WOULD BE MORE THAN EATEN UP AND TEXAS
WOULD LOSE HER POTENTIAL RIGHT.  THIS ADDED REQUIREMENT - THE
ABSORPTION OF THE ENTIRE ESTATE BY HAVING NUMEROUS STATES STAKE OUT
CLAIMS - IS TOO READILY SUPPLIED. 

TO EXTEND THE NEAT PROCEDURAL DEVICE OF INTERPLEADER TO SUCH A
SITUATION IS ANOTHER ILLUSTRATION OF TRANSFERRING A REMEDY FROM ONE
LEGAL ENVIRONMENT TO CIRCUMSTANCES QUALITATIVELY DIFFERENT.  TO SETTLE
THE INTERESTS OF DIFFERENT CLAIMANTS TO A SINGLE RES WHERE THESE
INTERESTS TURN ON NARROW AND RELATIVELY FEW FACTS AND WHERE CONFLICTING
CLAIMS CANNOT HAVE EQUAL VALIDITY IN EXPERIENCE, IS ONE THING; IT IS A
WHOLLY DIFFERENT THING TO BRING INTO COURT IN A SINGLE SUIT ALL STATES
WHICH EVEN REMOTELY MIGHT ASSERT DOMICILIARY CLAIMS AGAINST A DECEDENT
AND WHERE ONE STATE COURT MIGHT WITH AS MUCH REASON AS ANOTHER FIND
DOMICILE WITHIN ITS STATE.  CERTAINLY WHEN THE CLAIM OF THE MOVING
STATE IS SO OBVIOUSLY WITHOUT BASIS AS THIS COURT HAS NOW FOUND IN THE
CASE OF TEXAS, THE LINCHPIN OF JURISDICTION IS GONE AND THE OTHER
STATES SHOULD BE REMITTED TO APPROPRIATE REMEDIES OUTSIDE THIS COURT. 
SUCH A DISPOSITION WOULD BE A REAL SAFEGUARD AGAINST THE CONSTRUCTION
OF A SUIT TO GIVE THIS COURT JURISDICTION OVER MATTERS WHICH AS SUCH,
THIS COURT HAS ALREADY HELD, ARE NOT WITHIN OUR PROVINCE.  FN5  TO FIND
THAT THE DECEDENT COULD NOT, ON SELF-SERVING GROUNDS, ELECT TO MAKE HIS
HOME IN TEXAS "WHERE HE IN FACT HAD NO RESIDENCE" AND YET TO RETAIN THE
BILL AND DISPOSE OF IT ON ITS MERITS AMOUNTS, IN EFFECT, TO A
DECLARATION OF RIGHTS ON BEHALF OF THE ESTATE WHICH COULD NOT BE
ADJUDICATED OTHERWISE THAN THROUGH THE SCREEN OF A CONTROVERSY BETWEEN
STATES. 

IN THIS CASE WE DO NOT EVEN HAVE SUBSTANTIAL TRANSLATION INTO
EFFECTIVE LEGAL ACTION OF THE ASSERTIONS BY THE FOUR STATES OF THEIR
DOMICILIARY CLAIMS.  TO BE SURE, THE MASTER HAS FOUND, AS SUMMARIZED IN
THE COURT'S OPINION, "THAT EACH OF THE FOUR STATES IN GOOD FAITH
ASSERTS THAT THE DECEDENT WAS DOMICILED WITHIN IT AT HIS DEATH."  THIS
IS A NATURAL ATTITUDE OF PRUDENCE ON THE PART OF LAW OFFICERS OF STATES
IN THE CASE OF DECEDENTS WHO HAD SCATTERED THEIR LIVES AS WELL AS THEIR
HOLDINGS.  BUT TO GIVE THIS COURT THE EXTRAORDINARY JURISDICTION WHICH
IS INVOKED, THERE OUGHT TO BE MORE THAN THESE CAVEATS.  THERE SHOULD BE
MANIFESTATION OF THAT HARD DETERMINATION TO PRESS A STATE'S CLAIM WHICH
IS IMPLIED IN SETTING THE TAX-COLLECTING MACHINERY OF A STATE IN
MOTION.  ALLEGATION, AFFIRMATIVE PROOF, AND FINDING OF SUCH ATTEMPTS BY
THE VARIOUS STATES ARE LACKING.  AND NEW YORK DENIES WITHOUT
CONTRADICTION THAT ITS PROCEDURE FOR TAX LEVY AND COLLECTION HAS BEEN
SET IN OPERATION.  FN6  THESE CIRCUMSTANCES ARE, THEREFORE, NOT
COMPARABLE TO THE ISSUES IN A CONVENTIONAL INTERPLEADER SUIT BROUGHT TO
FORESTALL CONFLICTING ACTIONS.  INITIATION OF LITIGATION IS, OF COURSE,
NOT A PREREQUISITE TO AN ORDINARY INTERPLEADER.  THIS ONLY SERVES TO
EMPHASIZE THE INAPPROPRIATENESS OF UTILIZING A REMEDY INVENTED TO
SETTLE PRIVATE CONTROVERSIES OF LIMITED SCOPE TO THE RESOLUTION OF
CONFLICTING GOVERNMENTAL INTERESTS. 

JURISDICTIONAL DOUBTS INEVITABLY LOSE FORCE ONCE LEAVE HAS BEEN GIVEN
TO FILE A BILL, A MASTER HAS BEEN APPOINTED, LONG HEARINGS HAVE BEEN
HELD, AND A WEIGHTY REPORT HAS BEEN SUBMITTED.  AND SO, WERE THIS THE
LAST AS WELL AS THE FIRST ASSUMPTION OF JURISDICTION BY THIS COURT OF A
CONTROVERSY LIKE THE PRESENT, EVEN SERIOUS DOUBTS ABOUT IT MIGHT WELL
GO UNEXPRESSED.  BUT IF EXPERIENCE IS ANY GUIDE, THE PRESENT DECISION
WILL GIVE MOMENTUM TO KINDRED LITIGATION AND RELIANCE UPON IT BEYOND
THE SCOPE OF THE SPECIAL FACTS OF THIS CASE.  TO BE SURE, THE COURT'S
OPINION ENDEAVORS TO CIRCUMSCRIBE CAREFULLY THE BOUNDS OF JURISDICTION
NOW EXERCISED.  BUT LEGAL DOCTRINES HAVE, IN AN ODD KIND OF WAY, THE
FACULTY OF SELF-GENERATING EXTENSION.  THEREFORE, IN PRICKING OUT THE
LINES OF FUTURE DEVELOPMENT OF WHAT IS NEW DOCTRINE, THE IMPORTANCE OF
THESE ISSUES MAY MAKE IT NOT INAPPROPRIATE TO INDICATE DIFFICULTIES
WHICH I HAVE NOT BEEN ABLE TO OVERCOME AND POTENTIAL ABUSES TO WHICH
THE DOCTRINE IS NOT UNLIKELY TO GIVE RISE. 

I AM AUTHORIZED TO SAY THAT MR. JUSTICE BLACK CONCURS IN THESE VIEWS
AND IN THE CONCLUSION THAT THE BILL SHOULD BE DISMISSED. 

FN1  THE SPIRIT IN WHICH INTERSTATE LITIGATION SHOULD BE APPROACHED
HAS BEEN THUS EXPRESSED BY MR. CHIEF JUSTICE FULLER IN LOUISIANA V.
TEXAS, 176 U.S. 1, 15:  "BUT IT IS APPARENT THAT THE JURISDICTION IS OF
SO DELICATE AND GRAVE A CHARACTER THAT IT WAS NOT CONTEMPLATED THAT IT
WOULD BE EXERCISED SAVE WHEN THE NECESSITY WAS ABSOLUTE AND THE MATTER
IN ITSELF PROPERLY JUSTICIABLE." 

FN2  INTERSTATE COMMISSION ON CONFLICTING TAXATION, CONFLICTING
TAXATION (1935) 88 ET SEQ.; COMPARE LEAGUE OF NATIONS DOCUMENTS, E.F.S.
16 A. 16.  1921; E.F.S. 73 F. 19.  1923; C. 368.  M. 115.  1925.  II;
C. 216.  M. 85.  1927.  II; C. 345.  M. 102.  1928.  II; C. 562.  M.
178.  1928.  II; C. 345.  M. 134.  1929.  II; C. 585.  M. 263.  1930. 
II; C. 791.  M. 385.  1931.  IIA; C. 618.  M. 291.  1933.  IIA; C.
118.  M. 57.  1936.  IIA. 

FN3  IN RE DORRANCE'S ESTATE, 309 PA. 151, 163 ATL. 303, CERT.
DENIED, SUB NOM., DORRANCE V. PENNSYLVANIA, 287 U.S. 660, 288 U.S. 617;
NEW JERSEY V. PENNSYLVANIA, 287 U.S. 580; IN RE DORRANCE, 113 N.J. EQ.
266, 166 ATL. 177; 115 N.J. EQ. 268, 170 ATL. 601; 116 N.J. EQ. 204,
172 ATL. 503, AFF'D SUB NOM., DORRANCE V. MARTIN, 13 N.J. MISC. 168,
176 ATL. 902, AFF'D, 116 N.J.L. 362, 184 ATL. 743, CERT. DENIED, 298
U.S. 678; HILL V. MARTIN, 296 U.S. 393. 

FN4  THE PRINCIPLE IS THUS FORMULATED IN THE PRESENT CASE:  "THAT TWO
OR MORE STATES MAY EACH CONSTITUTIONALLY ASSESS DEATH TAXES ON A
DECEDENT'S INTANGIBLES UPON A JUDICIAL DETERMINATION THAT THE DECEDENT
WAS DOMICILED WITHIN IT IN PROCEEDINGS BINDING UPON THE REPRESENTATIVES
OF THE ESTATE, BUT TO WHICH THE OTHER STATES ARE NOT PARTIES, IS AN
ESTABLISHED PRINCIPLE OF OUR FEDERAL JURISPRUDENCE."  ANTE, P. 410. 

THE DECISION OF THE COURT THEREFORE BINDS THE STATES UPON AN ISSUE OF
STATE LAW WHICH THIS COURT COULD NOT CONSIDER UPON APPEAL FROM THE
STATE COURTS, AND ON WHICH THIS COURT WOULD BE BOUND TO FOLLOW STATE
LAW IN ALL OTHER PROCEEDINGS INSTITUTED IN THE FEDERAL COURTS. 

FN5  SEE NOTE 4, SUPRA. 

FN6  "AS YET, NO ONE OF THE STATES HAS ASSESSED AND LEVIED ANY DEATH
TAX AGAINST THE ESTATE, AND, IF THE MATTER WERE LEFT TO THE ORDINARY
PROCEDURE FOR THE ASSESSMENT OF SUCH TAXES IN THE VARIOUS STATES, IT IS
HIGHLY IMPROBABLE THAT DETERMINATIONS WOULD BE MADE IN ALL OF THE
STATES THAT GREEN WAS DOMICILED THEREIN.  IN NEW YORK STATE, THE ONLY
ADMINISTRATIVE OFFICIAL WHO HAS AUTHORITY TO DETERMINE WHETHER OR NOT
THE ESTATE TAX IS ASSESSABLE ON THE THEORY THAT GREEN WAS A RESIDENT OF
THE STATE IS THE SURROGATE OF ONE OF THE COUNTIES AND THUS FAR NO
SURROGATE HAS ACTED IN THIS RESPECT."  BRIEF FOR THE STATE OF NEW YORK,
P. 2.    ON MAY 15, 1939, THE FOLLOWING DECREE WAS ENTERED IN THE ABOVE
ENTITLED CASE:

                               DECREE. 

THIS CAUSE CAME ON TO BE HEARD ON THE PLEADINGS, EVIDENCE, AND THE
EXCEPTIONS FILED BY THE PARTIES TO THE REPORT OF THE SPECIAL MASTER,
AND WAS ARGUED BY COUNSEL.    THE COURT HAVING DISMISSED MABEL HARLOW
GREEN AS A PARTY DEFENDANT TO THE SUIT ON JANUARY 17, 1938(302 U.S.
662), PURSUANT TO THE STIPULATION FILED BY THE PARTIES, IT IS NOW HERE
ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 

1.  THE REPORT OF THE SPECIAL MASTER IS CONFIRMED. 

2.  THE DOMICILE OF EDWARD HOWLAND ROBINSON GREEN AT THE TIME OF HIS
DEATH, JUNE 8, 1936, WAS IN FACT AND IN LAW WITHIN THE COMMONWEALTH OF
MASSACHUSETTS AND NOT WITHIN THE STATE OF TEXAS, THE STATE OF FLORIDA,
OR THE STATE OF NEW YORK. 

3. THE CAUSE WILL BE RETAINED UPON THE DOCKET FOR SUCH FURTHER ACTION
AS MAY BE NECESSARY AND PROPER AND THE PARTIES OR ANY OF THEM MAY AT
ANY TIME HEREAFTER APPLY FOR RELIEF AS THEY MAY BE ADVISED. 

AND IT IS FURTHER ORDERED THAT THE COSTS IN THIS CASE, INCLUDING THE
COMPENSATION AND EXPENSES OF THE SPECIAL MASTER SHALL BE PAID ONE-FIFTH
EACH BY THE STATE OF TEXAS, STATE OF FLORIDA, STATE OF NEW YORK,
COMMONWEALTH OF MASSACHUSETTS, AND HETTY SYLVIA ANN HOWLAND GREEN
WILKS. 
..END :













LABOR BOARD V. FANSTEEL CORP., 306 U.S. 240 


NO. 436.  ARGUED JANUARY 12, 13, 1939.  - DECIDED FEBRUARY 27, 1939.  -
98 F.2D 375, AFFIRMED WITH MODIFICATIONS. 


1.  SEIZURE AND FORCIBLE RETENTION OF AN EMPLOYER'S FACTORY BUILDINGS
BY EMPLOYEES, IN A "SIT-DOWN" STRIKE, IS GOOD CAUSE FOR THEIR
DISCHARGE.  P. 252. 

2.  THE NATIONAL LABOR RELATIONS ACT DOES NOT UNDERTAKE TO ABROGATE
THE RIGHT OF AN EMPLOYER TO REFUSE TO RETAIN IN HIS EMPLOY THOSE WHO
ILLEGALLY TAKE AND HOLD POSSESSION OF HIS PROPERTY.  P. 255. 

3.  THE NATIONAL LABOR RELATIONS ACT IS NOT TO BE CONSTRUED AS
COMPELLING EMPLOYERS TO RETAIN PERSONS IN THEIR EMPLOY REGARDLESS OF
THEIR UNLAWFUL CONDUCT.  IN RECOGNIZING THE RIGHT TO STRIKE IT
CONTEMPLATES A LAWFUL STRIKE; AND WHERE A STRIKE, EVEN THOUGH ACTUATED
BY UNFAIR LABOR PRACTICES OF THE EMPLOYER, IS INITIATED AND CONDUCTED
IN LAWLESSNESS BY THE SEIZURE AND RETENTION OF THE EMPLOYER'S PROPERTY,
AND THE STRIKERS ARE DISCHARGED BECAUSE OF THEIR LAWLESSNESS, THEY DO
NOT REMAIN "EMPLOYEES" WITHIN THE MEANING OF SEC. 2(3) AND ARE NOT
WITHIN THE AUTHORITY TO REINSTATE "EMPLOYEES" REPOSED IN THE BOARD BY
SEC. 10(C).  P. 256. 

4.  THE PROVISION OF SEC. 10(C) OF THE ACT, BY WHICH THE BOARD MAY
REQUIRE AN EMPLOYER TO TAKE SUCH AFFIRMATIVE ACTION AS WILL "EFFECTUATE
THE POLICIES" OF THE ACT, DOES NOT AUTHORIZE THE BOARD TO REQUIRE
REEMPLOYMENT OF MEN WHO HAVE BEEN DISCHARGED FOR SUCH UNLAWFUL
CONDUCT.  P. 257. 

5.  STRIKERS WHO AIDED AND ABETTED A "SIT-DOWN" STRIKE ARE IN NO
BETTER CASE THAN THE "SIT-DOWN" STRIKERS THEMSELVES.  ASSUMING THAT,
THROUGH NOT HAVING BEEN FORMALLY DISCHARGED, THEY RETAINED THE STATUS
OF "EMPLOYEES" BY VIRTUE OF SEC. 2(3), THAT PROVISION DOES NOT
AUTOMATICALLY REINSTATE THEM; AND THE PROVISION THAT THE BOARD MAY
REQUIRE "SUCH AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES"
AS WILL "EFFECTUATE THE POLICIES" OF THE ACT, WILL NOT COUNTENANCE AN
ORDER REQUIRING REINSTATEMENT IN SUCH CIRCUMSTANCES.  P. 259. 

6.  AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD REQUIRING
REINSTATEMENT OF EMPLOYEES MUST BE SUPPORTED BY SPECIFIC FINDINGS.  P.
261. 

7.  AN ORDER OF THE BOARD THAT THE EMPLOYER BARGAIN WITH A PARTICULAR
ORGANIZATION AS EXCLUSIVE REPRESENTATIVE OF EMPLOYEES SHOULD NOT BE
ENFORCED WHERE BY REASON OF VALID DISCHARGES AND NEW EMPLOYMENTS THERE
IS NO GROUND TO CONCLUDE THAT THE ORGANIZATION IS THE CHOICE OF A
MAJORITY OF THE EMPLOYEES FOR THE PURPOSE OF COLLECTIVE BARGAINING.  P.
261. 

8.  AN ORDER OF THE BOARD REQUIRING AN EMPLOYER TO WITHDRAW
RECOGNITION FROM AN ORGANIZATION OF EMPLOYEES SHOULD BE UPHELD WHERE
THERE IS SUBSTANTIAL EVIDENCE THAT THE FORMATION OF THIS ORGANIZATION
WAS BROUGHT ABOUT THROUGH PROMOTION EFFORTS OF THE EMPLOYER CONTRARY TO
THE PROVISION OF SEC. 8(2) OF THE ACT.  P. 262. 

NATIONAL LABOR RELATIONS BOARD V. FANSTEEL METALLURGICAL CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 305 U.S. 590, TO REVIEW A JUDGMENT SETTING ASIDE AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD. 

THE CEASE AND DESIST PORTIONS OF THE ORDER DIRECTED TO VIOLATIONS OF
SECS. 8(1) AND (5) OF THE ACT ARE VALID IF THE FINDINGS OF THE BOARD
ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.  CONSOLIDATED EDISON CO. V.
NATIONAL LABOR BOARD, 305 U.S. 197.  THE FINDINGS WERE SO SUPPORTED. 

THE BOARD'S ORDER OF REINSTATEMENT BASED UPON THE VIOLATION OF SECS.
8(1) AND (5) WAS IN ALL RESPECTS PROPER.  RESPONDENT'S WHOLE COURSE OF
ILLEGAL CONDUCT WAS RESPONSIBLE FOR THE STRIKE, AND UNDER SUCH
CIRCUMSTANCES THE NORMAL AND PROPER MEANS BY WHICH THE STATUS QUO MAY
BE RESTORED IS THE REINSTATEMENT OF THE STRIKERS TO POSITIONS OF
EMPLOYMENT. 

THAT REMEDY IS NOT BEYOND THE POWER OF THE BOARD IN THIS CASE BECAUSE
OF THE ATTEMPTED DISCHARGE OF SOME OF THE STRIKERS FOR ENGAGING IN A
"SIT-DOWN."  THE DISCHARGE DID NOT REMOVE THOSE STRIKERS FROM THE CLASS
OF PERSONS DESCRIBED AS "EMPLOYEES" UNDER SEC. 10(C).  PLAINLY THE
STRIKERS HERE WERE WITHIN THAT CATEGORY WHEN THE STRIKE TOOK PLACE; AND
SINCE THE ACT SPECIFIES ONLY ONE WAY IN WHICH THIS STATUTORY STATUS MAY
BE ENDED - BY EQUIVALENT EMPLOYMENT ELSEWHERE - IT IS REASONABLE TO
ASSUME THAT CONGRESS INTENDED THAT STATUS TO CONTINUE DESPITE AN
ATTEMPTED DISCHARGE, AT LEAST FOR THE REMEDIAL PURPOSES OF THE ACT. 
NATIONAL LABOR RELATIONS BOARD V. CARLISLE LUMBER CO., 94 F.2D 138;
CERT. DEN., 304 U.S. 575.  ONCE AN UNFAIR LABOR PRACTICE HAS OCCURRED,
THE EMPLOYER, ALTHOUGH FREE TO TERMINATE THE NORMAL INCIDENTS OF THE
EMPLOYEE RELATIONSHIP FOR CAUSE, MAY NOT DESTROY THE POWER OF THE BOARD
TO REMEDY HIS UNFAIR LABOR PRACTICES, SO LONG AS THE REMEDY REQUIRED
WILL EFFECTUATE THE PURPOSES OF THE ACT. 

EVEN IF THE REINSTATEMENT WAS NOT OF "EMPLOYEES," NEVERTHELESS THE
ORDER IS VALID.  SECTION 10(C) EMPOWERS THE BOARD TO REQUIRE "SUCH
AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES ...  AS WILL
EFFECTUATE THE POLICIES OF THIS ACT."  THE CLAUSE - "INCLUDING
REINSTATEMENT OF EMPLOYEES" - IS CLEARLY ILLUSTRATIVE AND NOT INTENDED
AS A LIMITATION.  THE USE OF THE WORD "INCLUDING" AND THE REPORTS IN
CONGRESS EACH CONFIRM WHAT IS BUT IN ANY EVENT THE NORMAL CONSTRUCTION
THAT THE BOARD SHALL HAVE PLENARY POWER TO REMEDY THE EFFECTS OF
UNFAIR LABOR PRACTICES, INCLUDING THE POWER TO REQUIRE REEMPLOYMENT OF
FORMER EMPLOYEES WHERE THAT IS REQUIRED IN ORDER TO EFFECTUATE THE
POLICIES OF THE ACT. 

NOR WAS IT AN ABUSE OF DISCRETION FOR THE BOARD TO CONCLUDE THAT
REINSTATEMENT WOULD EFFECTUATE THE POLICIES OF THE ACT.  THE BOARD
COULD HAVE EFFECTUALLY RESTORED THE STATUS QUO AND DISSIPATED THE
EFFECTS OF RESPONDENT'S UNFAIR LABOR PRACTICES IN NO OTHER WAY. 
RESPONDENT CAN NOT OBJECT TO THE REINSTATEMENT OF THE MEN ON THE GROUND
EITHER THAT THEY HAD BEEN GUILTY OF MISCONDUCT OR HAD BEEN DISCHARGED
BECAUSE BY REINSTATEMENT OF STRIKERS IN EACH CATEGORY IT HAS ITSELF
SHOWN THAT IT REGARDS NEITHER FACT AS A BAR TO REINSTATEMENT. 
RESPONDENT WAS WILLING TO REINSTATE ALL THE STRIKERS WHO WOULD
SURRENDER THEIR RIGHT TO BARGAIN THROUGH THE UNION.  HENCE, THE BOARD'S
ORDER SIMPLY OBLITERATES THE DISTINCTION WHICH RESPONDENT ITSELF HAS
DRAWN AMONG STRIKERS ON THE BASIS OF THEIR WILLINGNESS OR UNWILLINGNESS
TO ABANDON THE UNION. 

EMPLOYEE WRONGDOING IS A FACTOR TO BE TAKEN INTO CONSIDERATION BY THE
BOARD, BUT UNDER THE CIRCUMSTANCES OF THE PRESENT CASE IT WAS NOT AN
ABUSE OF DISCRETION TO ORDER REINSTATEMENT. 

THE ORDER OF THE BOARD PROPERLY REQUIRED OFFERS OF REINSTATEMENT TO
ALL THE STRIKERS, EVEN THOUGH RESPONDENT CLAIMED THAT CERTAIN STRIKERS
WERE INEFFICIENT, AND THAT IT HAD ABOLISHED SOME POSITIONS BY
REORGANIZING ITS PLANT.  RESPONDENT, AFTER COMPLYING WITH THE ORDER,
MAY REDUCE OR REORGANIZE ITS STAFF ON ANY NON-DISCRIMINATORY BASIS. 

THE PROVISION WHICH REQUIRES BACK PAY ONLY FROM THE TIME WHEN
APPLICATION FOR REINSTATEMENT IS MADE BY THE STRIKERS AND IS REFUSED BY
RESPONDENT IS PROPER. 

THE ORDER PROPERLY REQUIRES RESPONDENT TO BARGAIN COLLECTIVELY WITH
THE UNION UPON REQUEST.  VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300
U.S. 515.  THE EVIDENCE SHOWS THAT WHEN THE OTHER PROVISIONS OF THE
ORDER ARE COMPLIED WITH BY THE REINSTATEMENT OF THE STRIKERS AND THE
DISCHARGE OF THOSE FIRST EMPLOYED SINCE THE UNFAIR LABOR PRACTICES, THE
UNION WILL HAVE A CLEAR MAJORITY IN THE APPROPRIATE UNIT.  EVEN IF THE
FACTS WERE NOT THUS CLEAR, SOME SUCH PRESUMPTION WOULD BE NECESSARY TO
MAKE THE ACT WORKABLE.  NATIONAL LABOR RELATIONS BOARD V. REMINGTON
RAND, 94 F.2D 862; CERT. DEN., 304 U.S. 576. 

THE BOARD'S FINDING THAT RESPONDENT DOMINATED AND INTERFERED WITH THE
FORMATION AND ADMINISTRATION OF THE RARE METAL WORKERS OF AMERICA IN
VIOLATION OF SEC. 8(2) OF THE ACT IS SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE.  ON THE BASIS OF THAT VIOLATION, THE BOARD PROPERLY ORDERED
RESPONDENT TO CEASE AND DESIST, AND TO WITHDRAW RECOGNITION FROM THAT
UNION. 

RESPONDENT WAS NOT DEPRIVED OF DUE PROCESS OF LAW BY THE BOARD'S
RULINGS ON ITS APPLICATIONS FOR CERTAIN SUBPOENAS.  RESPONDENT, BY ITS
PRIVILEGE OF APPLYING TO THE CIRCUIT COURT OF APPEALS FOR LEAVE TO
ADDUCE ADDITIONAL EVIDENCE UNDER SEC. 10(E) AND (F), WAS AFFORDED A
FULL REMEDY UNDER THE ACT FOR ANY ERRONEOUS ACTION OF THE BOARD.  NOT
HAVING AVAILED ITSELF OF THAT PRIVILEGE, RESPONDENT HAS NO GROUND FOR
COMPLAINT. 

CEASE WORK BY REASON OF A LABOR DISPUTE OR AN UNFAIR LABOR PRACTICE. 
THE CONGRESSIONAL INTENT IS THAT WORKERS SHALL NOT LOSE THEIR EMPLOYEE
STATUS BY STRIKING.  THIS SECTION DOES NOT DESTROY THE EMPLOYER'S RIGHT
TO DISCHARGE STRIKING EMPLOYEES FOR CAUSE, NOR DOES IT, CONVERSELY,
CONFER UPON STRIKING EMPLOYEES IMMUNITY FROM DISCHARGE FOR CAUSE. 

ACTION, INCLUDING THE REINSTATEMENT OF EMPLOYEES, WITH OR WITHOUT BACK
PAY, AS WILL EFFECTUATE THE POLICIES OF THIS ACT."  ONLY EMPLOYEES MAY
BE ORDERED REINSTATED.  IN ASSERTING THE POWER TO REQUIRE REINSTATEMENT
OF NON-EMPLOYEES, THE BOARD TREATS THE PHRASE "INCLUDING THE
REINSTATEMENT OF EMPLOYEES" AS SUPERFLUOUS.  THE SPECIFIC DEFINITION OF
THE REINSTATEMENT POWER QUALIFIES AND LIMITS THE GENERAL GRANT. 

THE CONSTITUTIONAL PROTECTION OF THE EMPLOYER'S RIGHT OF DISCHARGE
CAN BE REQUIRED TO GIVE WAY ONLY TO THE EXTENT THAT IT COLLIDES WITH
THE EMPLOYEE'S COEQUAL RIGHT OF SELF-ORGANIZATION.  THE RIGHT OF SELF
ORGANIZATION DOES NOT EMBRACE A LICENSE TO SEIZE THE EMPLOYER'S PLANT. 
THE LAWLESS OCCUPATION OF PLANTS IS NOT AND COULD NOT CONSTITUTIONALLY
BE SAFEGUARDED BY THE ACT.  CONSTRUED IN THE LIGHT OF THE RESTRAINTS
IMPOSED BY THE FIFTH AMENDMENT, THE ACT CLEARLY PRESERVES THE
EMPLOYER'S RIGHT TO DISCHARGE EMPLOYEES FOR CAUSE, WHETHER THEY BE AT
WORK OR ON STRIKE, AND CONFERS UPON THE BOARD NO POWER TO COMPEL
EMPLOYMENT OF FORMER EMPLOYEES. 

THE REINSTATEMENT OF DISCHARGED EMPLOYEES GUILTY OF THE PROPERTY
DESTRUCTION AND LAWLESSNESS PORTRAYED ON THIS RECORD CAN NOT ADVANCE
EITHER THE IMMEDIATE OBJECTIVE OF COLLECTIVE BARGAINING OR THE ULTIMATE
END OF INDUSTRIAL PEACE.  SPURNING THE LEGAL REMEDIES AVAILABLE UNDER
THE ACT, INCLUDING THE PENDING PROCEEDING BEFORE THE BOARD, THE SIT
DOWN STRIKERS TOOK THE LAW INTO THEIR OWN HANDS.  THE BOARD CHARGES THE
EMPLOYER WITH FULL RESPONSIBILITY FOR THAT VIOLENCE, VANDALISM AND
LAWLESSNESS THUS UNDERTAKEN AS A MEANS OF SELF-REDRESS.  THAT IS
NOTHING MORE THAN AN APPROVAL OF LYNCH LAW.  THE DELIBERATE LAWLESSNESS
DISQUALIFIED THE PARTICIPANTS AS SUITABLE EMPLOYEES.  RESPONDENT HAD
AMPLE GROUNDS FOR ITS APPREHENSION THAT THEIR REEMPLOYMENT WOULD
ENGENDER PLANT DEMORALIZATION AND STRIFE.  CONTRARY TO THE BOARD'S
ARGUMENT, NO CONDITIONS AS TO UNION MEMBERSHIP OR COLLECTIVE BARGAINING
ACTIVITY WERE IMPOSED UPON ANY PERSONS REEMPLOYED.  RESPONDENT ACCEPTED
APPLICATIONS FOR REEMPLOYMENT ONLY FROM THOSE BELIEVED TO HAVE BEEN
COERCED AND INTIMIDATED INTO REMAINING WITHIN THE BUILDINGS.  THAT
ACTION DID NOT, AS TO THE REMAINING MEN, EITHER VITIATE THEIR VALID
DISCHARGE OR QUALIFY THEM AS SUITABLE EMPLOYEES.  THEIR REINSTATEMENT
CAN NOT EFFECTUATE THE POLICIES OF THE ACT. 

THE REINSTATEMENT OF PERSONS (1) WHOSE JOBS HAVE BEEN ABOLISHED AND
(2) WHO ARE SHOWN TO HAVE BEEN INEFFICIENT, CAN NOT EFFECTUATE THE
POLICIES OF THE ACT.  THE BOARD DEALT WITH THESE TWO GROUPS BY
DIRECTING RESPONDENT TO REINSTATE ALL OF THE PERSONS INVOLVED AND THEN
TO CARRY OUT A NEW INTERNAL REORGANIZATION, DISCHARGING THOSE FOR WHOM
THERE WERE NO JOBS OR WHO WERE INEFFICIENT.  ORDERING THE REINSTATEMENT
OF SUCH PERSONS WOULD BE PRODUCTIVE ONLY OF FUTILE PLANT
DISORGANIZATION AND CONSTITUTES AN ABUSE OF DISCRETION. 

THE BACK-PAY PROVISION OF THE ORDER CONSTITUTES A PENALTY FOR SEEKING
JUDICIAL REVIEW OF THE ORDER.  THIS IS PARTICULARLY TRUE WITH RESPECT
TO PERSONS WHOSE JOBS HAVE BEEN ABOLISHED OR WHO WERE SHOWN TO BE
INEFFICIENT.  THE ORDER RECOGNIZES THAT UPON THEIR REINSTATEMENT THEY
MAY BE IMMEDIATELY DISCHARGED. 

THE COURT PROPERLY HELD THAT THE ELIMINATION FROM THE ROLLS OF THE
EMPLOYEES DISMISSED FOR CAUSE HAD COMPLETELY DISSIPATED ANY MAJORITY
THAT LODGE 66 MIGHT HAVE ENJOYED.  THE BOARD IS WITHOUT POWER TO ORDER
THE RECOGNITION OF LODGE 66 AS THE EXCLUSIVE BARGAINING AGENCY, IN THE
FACE OF THE FACT THAT IT NO LONGER REPRESENTS A MAJORITY. 

THE RECORD IS WHOLLY BARREN OF ANY EVIDENCE TO SUSTAIN THE FINDING OF
DOMINATION AND INTERFERENCE RESPECTING THE RARE METAL WORKERS OF
AMERICA, LOCAL NO. 1. 

NOT A SINGLE SUBPOENA REQUESTED BY THE RESPONDENT WAS GRANTED BEFORE
OR DURING THE EIGHTEEN-DAY HEARING.  NOT A SINGLE SUBPOENA DESIRED BY
THE BOARD'S ATTORNEY WAS REFUSED.  THIS ARBITRARY AND DISCRIMINATORY
REFUSAL DENIED TO THE RESPONDENT THE FAIR HEARING REQUIRED BY THE FIFTH
AMENDMENT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS SET ASIDE AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD REQUIRING RESPONDENT TO DESIST FROM LABOR PRACTICES
FOUND TO BE IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT AND TO
OFFER REINSTATEMENT TO CERTAIN DISCHARGED EMPLOYEES WITH BACK PAY. 
WHILE THE OTHER PORTIONS OF THE BOARD'S ORDER ARE UNDER REVIEW, THE
PRINCIPAL QUESTION PRESENTED RELATES TO THE AUTHORITY OF THE BOARD TO
REQUIRE RESPONDENT TO REINSTATE EMPLOYEES WHO WERE DISCHARGED BECAUSE
OF THEIR UNLAWFUL CONDUCT IN SEIZING RESPONDENT'S PROPERTY IN WHAT IS
CALLED A "SIT-DOWN STRIKE." 

RESPONDENT, FANSTEEL METALLURGICAL CORPORATION, IS ENGAGED AT NORTH
CHICAGO, ILLINOIS, IN THE MANUFACTURE AND SALE OF PRODUCTS MADE FROM
RARE METALS.  NO QUESTION IS RAISED AS TO THE INTIMATE RELATION OF ITS
OPERATIONS TO INTERSTATE COMMERCE OR THE EFFECT UPON THAT COMMERCE OF
THE UNFAIR LABOR PRACTICES WITH WHICH THE CORPORATION IS CHARGED.  THE
FINDINGS OF THE BOARD SHOW THAT IN THE SUMMER OF 1936 A GROUP OF
EMPLOYEES ORGANIZED LODGE 66 UNDER THE AUSPICES OF A COMMITTEE OF THE
AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTH
AMERICA; THAT RESPONDENT EMPLOYED A "LABOR SPY" TO ENGAGE IN ESPIONAGE
WITHIN THE UNION AND HIS EMPLOYMENT WAS CONTINUED UNTIL ABOUT DECEMBER
1, 1936; THAT ON SEPTEMBER 10, 1936, RESPONDENT'S SUPERINTENDENT WAS
REQUESTED TO MEET WITH A COMMITTEE OF THE UNION AND THE SUPERINTENDENT
REQUIRED THAT THE COMMITTEE SHOULD CONSIST ONLY OF EMPLOYEES OF FIVE
YEARS' STANDING; THAT A COMMITTEE, SO CONSTITUTED, PRESENTED A CONTRACT
RELATING TO WORKING CONDITIONS; THAT THE SUPERINTENDENT OBJECTED TO
"CLOSED-SHOP AND CHECK-OFF PROVISIONS" AND ANNOUNCED THAT IT WAS
RESPONDENT'S POLICY TO REFUSE RECOGNITION TO "OUTSIDE" UNIONS; THAT ON
SEPTEMBER 21, 1936, THE SUPERINTENDENT REFUSED TO CONFER WITH THE
COMMITTEE IN WHICH AN "OUTSIDE" ORGANIZER HAD BEEN INCLUDED; THAT
MEANWHILE, AND LATER, RESPONDENT'S REPRESENTATIVES SOUGHT TO HAVE A
"COMPANY UNION" SET UP, BUT THE ATTEMPT PROVED ABORTIVE; THAT FROM
NOVEMBER, 1936, TO JANUARY, 1937, THE SUPERINTENDENT REQUIRED THE
PRESIDENT OF THE UNION TO WORK IN A ROOM ADJOINING THE SUPERINTENDENT'S
OFFICE WITH THE PURPOSE OF KEEPING HIM AWAY FROM THE OTHER WORKERS;
THAT WHILE IN SEPTEMBER, 1936, THE UNION DID NOT HAVE A MAJORITY OF THE
PRODUCTION AND MAINTENANCE EMPLOYEES, AN APPROPRIATE UNIT FOR
COLLECTIVE BARGAINING, BY FEBRUARY 17, 1937, 155 OF RESPONDENT'S 229
EMPLOYEES IN THAT UNIT HAD JOINED THE UNION AND HAD DESIGNATED IT AS
THEIR COLLECTIVE BARGAINING REPRESENTATIVE; THAT ON THAT DATE, A
COMMITTEE OF THE UNION MET TWICE WITH THE SUPERINTENDENT, WHO REFUSED
TO BARGAIN WITH THE UNION AS TO RATES OF PAY, HOURS AND CONDITIONS OF
EMPLOYMENT, THE REFUSAL BEING UPON THE GROUND THAT RESPONDENT WOULD NOT
DEAL WITH AN "OUTSIDE" UNION. 

SHORTLY AFTER THE SECOND MEETING IN THE AFTERNOON OF FEBRUARY 17TH
THE UNION COMMITTEE DECIDED UPON A "SIT-DOWN STRIKE" BY TAKING OVER AND
HOLDING TWO OF RESPONDENT'S "KEY" BUILDINGS.  THESE WERE THEREUPON
OCCUPIED BY ABOUT 95 EMPLOYEES.  WORK STOPPED AND THE REMAINDER OF THE
PLANT ALSO CEASED OPERATIONS.  EMPLOYEES WHO DID NOT DESIRE TO
PARTICIPATE WERE PERMITTED TO LEAVE, AND A NUMBER OF UNION MEMBERS WHO
WERE ON THE NIGHT SHIFT AND DID NOT ARRIVE FOR WORK UNTIL AFTER THE
SEIZURE DID NOT JOIN THEIR FELLOW MEMBERS INSIDE THE BUILDINGS.  AT
ABOUT SIX O'CLOCK IN THE EVENING THE SUPERINTENDENT, ACCOMPANIED BY
POLICE OFFICIALS AND RESPONDENT'S COUNSEL, WENT TO EACH OF THE
BUILDINGS AND DEMANDED THAT THE MEN LEAVE.  THEY REFUSED, AND
RESPONDENT'S COUNSEL "THEREUPON ANNOUNCED IN LOUD TONES THAT ALL THE
MEN IN THE PLANT WERE DISCHARGED FOR THE SEIZURE AND RETENTION OF THE
BUILDINGS."  THE MEN CONTINUED TO OCCUPY THE BUILDINGS UNTIL FEBRUARY
26, 1937.  THEIR FELLOW MEMBERS BROUGHT THEM FOOD, BLANKETS, STOVES,
CIGARETTES AND OTHER SUPPLIES.    ON FEBRUARY 18TH, RESPONDENT OBTAINED
FROM THE STATE COURT AN INJUNCTION ORDER REQUIRING THE MEN TO SURRENDER
THE PREMISES.  THE MEN REFUSED TO OBEY THE ORDER AND A WRIT OF
ATTACHMENT FOR CONTEMPT WAS SERVED ON FEBRUARY 19TH.  UPON THE MEN'S
REFUSAL TO SUBMIT, A PITCHED BATTLE ENSUED AND THE MEN SUCCESSFULLY
RESISTED THE ATTEMPT BY THE SHERIFF TO EVICT AND ARREST THEM.  EFFORTS
AT MEDIATION ON THE PART OF THE UNITED STATES DEPARTMENT OF LABOR AND
THE GOVERNOR OF ILLINOIS PROVED UNAVAILING.  ON FEBRUARY 26TH THE
SHERIFF WITH AN INCREASED FORCE OF DEPUTIES MADE A FURTHER ATTEMPT AND
THIS TIME, AFTER ANOTHER BATTLE, THE MEN WERE OUSTED AND PLACED UNDER
ARREST.  MOST OF THEM WERE EVENTUALLY FINED AND GIVEN JAIL SENTENCES
FOR VIOLATING THE INJUNCTION. 

RESPONDENT ON REGAINING POSSESSION UNDERTOOK TO RESUME OPERATIONS,
AND PRODUCTION GRADUALLY BEGAN.  BY MARCH 12TH THE RESTAFFING WAS
APPROXIMATELY COMPLETE.  A LARGE NUMBER OF THE STRIKERS, INCLUDING MANY
WHO HAD PARTICIPATED IN THE OCCUPATION OF THE BUILDINGS, WERE
INDIVIDUALLY SOLICITED TO RETURN TO WORK WITH BACK PAY BUT WITHOUT
RECOGNITION OF THE UNION.  SOME ACCEPTED THE OFFER AND WERE REINSTATED;
OTHERS REFUSED TO RETURN UNLESS THERE WERE UNION RECOGNITION AND MASS
REINSTATEMENT, AND WERE STILL OUT AT THE TIME OF THE HEARING BEFORE THE
BOARD.  NEW MEN WERE HIRED TO FILL THE POSITIONS OF THOSE REMAINING ON
STRIKE. 

MEANWHILE THE UNION WAS NOT INACTIVE.  ON MARCH 3D AND 5TH THERE WERE
REQUESTS, WHICH RESPONDENT REFUSED, FOR MEETINGS TO CONSIDER THE
RECOGNITION OF THE UNION FOR COLLECTIVE BARGAINING.  THERE WAS NO
COLLECTIVE REQUEST FOR REINSTATEMENT OF ALL THE STRIKERS.  THE POSITION
OF PRACTICALLY ALL THE STRIKERS WHO DID NOT GO BACK, AND WHO WERE NAMED
IN THE COMPLAINT FILED WITH THE BOARD, WAS "THAT THEY WERE DETERMINED
TO STAY OUT UNTIL THE UNION REACHED A SETTLEMENT WITH THE RESPONDENT." 

EARLY IN APRIL A LABOR ORGANIZATION KNOWN AS RARE METAL WORKERS OF
AMERICA, LOCAL NO. 1, WAS ORGANIZED AMONG RESPONDENT'S EMPLOYEES. 
THERE WAS A MEETING IN ONE OF RESPONDENT'S BUILDINGS ON APRIL 15TH,
WHICH WAS ATTENDED BY ABOUT 200 EMPLOYEES, AND THE BALLOTING RESULTED
IN A VOTE OF 185 TO 15 IN FAVOR OF THE FORMATION OF AN "INDEPENDENT"
ORGANIZATION.  ANOTHER MEETING WAS HELD SOON AFTER FOR THE ELECTION OF
OFFICERS.  RESPONDENT ACCORDED THESE EFFORTS VARIOUS FORMS OF SUPPORT. 
THE BOARD CONCLUDED THAT THE RARE METAL WORKERS OF AMERICA, LOCAL NO.
1, WAS THE RESULT OF THE RESPONDENT'S "ANTIUNION CAMPAIGN" AND THAT
RESPONDENT HAD DOMINATED AND INTERFERED WITH ITS FORMATION AND
ADMINISTRATION. 

UPON THE BASIS OF THESE FINDINGS AND ITS CONCLUSIONS OF LAW, THE
BOARD MADE ITS ORDER DIRECTING RESPONDENT TO DESIST FROM INTERFERING
WITH ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION
AND TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING AS GUARANTEED IN SEC. 7 OF THE ACT; FROM DOMINATING OR
INTERFERING WITH THE FORMATION OR ADMINISTRATION OF THE RARE METAL
WORKERS OF AMERICA, LOCAL NO. 1, OR ANY OTHER LABOR ORGANIZATION OF ITS
EMPLOYEES OR CONTRIBUTING SUPPORT THERETO; AND FROM REFUSING TO BARGAIN
COLLECTIVELY WITH THE AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN
WORKERS OF NORTH AMERICA, LODGE 66, AS THE EXCLUSIVE REPRESENTATIVE OF
THE EMPLOYEES DESCRIBED.  THE BOARD ALSO ORDERED THE FOLLOWING
AFFIRMATIVE ACTION WHICH IT WAS FOUND WOULD "EFFECTUATE THE POLICIES"
OF THE ACT; - THAT IS, UPON REQUEST, TO BARGAIN COLLECTIVELY WITH THE
AMALGAMATED ASSOCIATION AS STATED ABOVE; TO OFFER, UPON APPLICATION, TO
THE EMPLOYEES WHO WENT ON STRIKE ON FEBRUARY 17, 1937, AND THEREAFTER,
"IMMEDIATE AND FULL REINSTATEMENT TO THEIR FORMER POSITIONS," WITH BACK
PAY, DISMISSING, IF NECESSARY, ALL PERSONS HIRED SINCE THAT DATE; TO
WITHDRAW ALL RECOGNITION FROM RARE METAL WORKERS OF AMERICA, LOCAL NO.
1, AS A REPRESENTATIVE OF THE EMPLOYEES FOR THE PURPOSE OF DEALING WITH
RESPONDENT AS TO LABOR QUESTIONS, AND TO "COMPLETELY DISESTABLISH" THAT
ORGANIZATION AS SUCH REPRESENTATIVE; AND TO POST NOTICES OF
COMPLIANCE.  5 N.L.R.B. 930. 

THE BOARD FOUND THAT RESPONDENT HAD NOT ENGAGED IN UNFAIR LABOR
PRACTICES BY "DISCRIMINATION IN REGARD TO HIRE OR TENURE OF EMPLOYMENT"
IN ORDER TO "ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR
ORGANIZATION," AND ACCORDINGLY THE COMPLAINT UNDER SEC. 8(3) OF THE ACT
WAS DISMISSED.  ID. 

ON RESPONDENT'S PETITION, THE CIRCUIT COURT OF APPEALS SET ASIDE THE
BOARD'S ORDER, 98 F.2D 375, AND THIS COURT GRANTED CERTIORARI, 305 U.S.
590. 

FIRST.  THE UNFAIR LABOR PRACTICES.  - THE BOARD CONCLUDED THAT BY
"THE ANTI-UNION STATEMENTS AND ACTIONS" OF THE SUPERINTENDENT ON
SEPTEMBER 10, 1936, AND SEPTEMBER 21, 1936, BY "THE CAMPAIGN TO
INTRODUCE INTO THE PLANT A COMPANY UNION," BY "THE ISOLATION OF THE
UNION PRESIDENT FROM CONTACT WITH HIS FELLOW EMPLOYEES," AND BY THE
EMPLOYMENT AND USE OF A "LABOR SPY," RESPONDENT HAD INTERFERED WITH ITS
EMPLOYEES, AND RESTRAINED AND COERCED THEM, IN THE EXERCISE OF THEIR
RIGHT TO SELF-ORGANIZATION GUARANTEED IN SEC. 7 OF THE ACT, AND THUS
HAD ENGAGED IN AN UNFAIR LABOR PRACTICE UNDER SEC. 8(1) OF THE ACT. 

OWING TO THE FACT THAT IN SEPTEMBER, 1936, THE UNION DID NOT HAVE A
MAJORITY OF THE EMPLOYEES IN THE APPROPRIATE UNIT, THE BOARD HELD THAT
IT WAS PRECLUDED FROM FINDING UNFAIR LABOR PRACTICES IN REFUSING TO
BARGAIN COLLECTIVELY AT THAT TIME, BUT THE BOARD FOUND THAT THERE WAS
SUCH A REFUSAL ON FEBRUARY 17, 1937, WHEN THE UNION DID HAVE A MAJORITY
OF THE EMPLOYEES IN THE APPROPRIATE UNIT, AND THAT THIS CONSTITUTED A
VIOLATION OF SEC. 8(5). 

THESE CONCLUSIONS ARE SUPPORTED BY THE FINDINGS OF THE BOARD AND THE
LATTER IN THIS RELATION HAVE SUBSTANTIAL SUPPORT IN THE EVIDENCE. 

SECOND.  THE DISCHARGE OF THE EMPLOYEES FOR ILLEGAL CONDUCT IN
SEIZING AND HOLDING RESPONDENT'S BUILDINGS - THE BOARD DOES NOT NOW
CONTEND THAT THERE WAS NOT A REAL DISCHARGE ON FEBRUARY 17TH WHEN THE
MEN REFUSED TO SURRENDER POSSESSION.  THE DISCHARGE WAS CLEARLY
PROVED. 

NOR IS THERE ANY BASIS FOR DISPUTE AS TO THE CAUSE OF THE DISCHARGE. 
REPRESENTATIVES OF RESPONDENT DEMANDED THAT THE MEN LEAVE, AND ON THEIR
REFUSAL ANNOUNCED THAT THEY WERE DISCHARGED "FOR THE SEIZURE AND
RETENTION OF THE BUILDINGS."  THE FACT THAT IT WAS A GENERAL
ANNOUNCEMENT APPLICABLE TO ALL THE MEN IN THE PLANT WHO THUS REFUSED TO
LEAVE DOES NOT DETRACT FROM THE EFFECT OF THE DISCHARGE EITHER IN FACT
OR IN LAW. 

NOR IS IT QUESTIONED THAT THE SEIZURE AND RETENTION OF RESPONDENT'S
PROPERTY WERE UNLAWFUL.  IT WAS A HIGH-HANDED PROCEEDING WITHOUT SHADOW
OF LEGAL RIGHT.  IT BECAME THE SUBJECT OF DENUNCIATION BY THE STATE
COURT UNDER THE STATE LAW, RESULTING IN FINES AND JAIL SENTENCES FOR
DEFIANCE OF THE COURT'S ORDER TO VACATE AND IN A FINAL DECREE FOR
RESPONDENT AS THE COMPLAINANT IN THE INJUNCTION SUIT. 

THIS CONDUCT ON THE PART OF THE EMPLOYEES MANIFESTLY GAVE GOOD CAUSE
FOR THEIR DISCHARGE UNLESS THE NATIONAL LABOR RELATIONS ACT ABROGATES
THE RIGHT OF THE EMPLOYER TO REFUSE TO RETAIN IN HIS EMPLOY THOSE WHO
ILLEGALLY TAKE AND HOLD POSSESSION OF HIS PROPERTY. 

THIRD.  THE AUTHORITY OF THE BOARD TO REQUIRE THE REINSTATEMENT OF
THE EMPLOYEES THUS DISCHARGED.  - THE CONTENTIONS OF THE BOARD IN
SUBSTANCE ARE THESE:  (1) THAT THE UNFAIR LABOR PRACTICES OF RESPONDENT
LED TO THE STRIKE AND THUS FURNISHED GROUND FOR REQUIRING THE
REINSTATEMENT OF THE STRIKERS; (2) THAT UNDER THE TERMS OF THE ACT
EMPLOYEES WHO GO ON STRIKE BECAUSE OF AN UNFAIR LABOR PRACTICE RETAIN
THEIR STATUS AS EMPLOYEES AND ARE TO BE CONSIDERED AS SUCH DESPITE
DISCHARGE FOR ILLEGAL CONDUCT; (3) THAT THE BOARD WAS ENTITLED TO ORDER
REINSTATEMENT OR REEMPLOYMENT IN ORDER TO "EFFECTUATE THE POLICIES" OF
THE ACT. 

(1)  FOR THE UNFAIR LABOR PRACTICES OF RESPONDENT THE ACT PROVIDED A
REMEDY.  INTERFERENCE IN THE SUMMER AND FALL OF 1936 WITH THE RIGHT OF
SELF-ORGANIZATION COULD AT ONCE HAVE BEEN THE SUBJECT OF COMPLAINT TO
THE BOARD.  THE SAME REMEDY WAS AVAILABLE TO THE EMPLOYEES WHEN
COLLECTIVE BARGAINING WAS REFUSED ON FEBRUARY 17, 1937.  BUT
REPREHENSIBLE AS WAS THAT CONDUCT OF THE RESPONDENT, THERE IS NO GROUND
FOR SAYING THAT IT MADE RESPONDENT AN OUTLAW OR DEPRIVED IT OF ITS
LEGAL RIGHTS TO THE POSSESSION AND PROTECTION OF ITS PROPERTY.  THE
EMPLOYEES HAD THE RIGHT TO STRIKE BUT THEY HAD NO LICENSE TO COMMIT
ACTS OF VIOLENCE OR TO SEIZE THEIR EMPLOYER'S PLANT.  WE MAY PUT ON ONE
SIDE THE CONTESTED QUESTIONS AS TO THE CIRCUMSTANCES AND EXTENT OF
INJURY TO THE PLANT AND ITS CONTENTS IN THE EFFORTS OF THE MEN TO
RESIST EVICTION.  THE SEIZURE AND HOLDING OF THE BUILDINGS WAS ITSELF A
WRONG APART FROM ANY ACTS OF SABOTAGE.  BUT IN ITS LEGAL ASPECT THE
OUSTING OF THE OWNER FROM LAWFUL POSSESSION IS NOT ESSENTIALLY
DIFFERENT FROM AN ASSAULT UPON THE OFFICERS OF AN EMPLOYING COMPANY, OR
THE SEIZURE AND CONVERSION OF ITS GOODS, OR THE DESPOILING OF ITS
PROPERTY OR OTHER UNLAWFUL ACTS IN ORDER TO FORCE COMPLIANCE WITH
DEMANDS.  TO JUSTIFY SUCH CONDUCT BECAUSE OF THE EXISTENCE OF A LABOR
DISPUTE OR OF AN UNFAIR LABOR PRACTICE WOULD BE TO PUT A PREMIUM ON
RESORT TO FORCE INSTEAD OF LEGAL REMEDIES AND TO SUBVERT THE PRINCIPLES
OF LAW AND ORDER WHICH LIE AT THE FOUNDATIONS OF SOCIETY. 

AS RESPONDENT'S UNFAIR LABOR PRACTICES AFFORDED NO EXCUSE FOR THE
SEIZURE AND HOLDING OF ITS BUILDINGS, RESPONDENT HAD ITS NORMAL RIGHTS
OF REDRESS.  THOSE RIGHTS, IN THEIR MOST OBVIOUS SCOPE, INCLUDED THE
RIGHT TO DISCHARGE THE WRONGDOERS FROM ITS EMPLOY.  TO SAY THAT
RESPONDENT COULD RESORT TO THE STATE COURT TO RECOVER DAMAGES OR TO
PROCURE PUNISHMENT, BUT WAS POWERLESS TO DISCHARGE THOSE RESPONSIBLE
FOR THE UNLAWFUL SEIZURE WOULD BE TO CREATE AN ANOMALOUS DISTINCTION
FOR WHICH THERE IS NO WARRANT UNLESS IT CAN BE FOUND IN THE TERMS OF
THE NATIONAL LABOR RELATIONS ACT.  WE TURN TO THE PROVISIONS WHICH THE
BOARD INVOKES. 

(2)  IN CONSTRUING THE ACT IN NATIONAL LABOR RELATIONS BOARD V. JONES
& LAUGHLIN STEEL CORP., 301 U.S. 1, 45, 46, WE SAID THAT IT "DOES NOT
INTERFERE WITH THE NORMAL EXERCISE OF THE RIGHT OF THE EMPLOYER TO
SELECT ITS EMPLOYEES OR TO DISCHARGE THEM"; THAT THE EMPLOYER "MAY NOT,
UNDER COVER OF THAT RIGHT, INTIMIDATE OR COERCE ITS EMPLOYEES WITH
RESPECT TO THEIR SELF-ORGANIZATION AND REPRESENTATION, AND, ON THE
OTHER HAND, THE BOARD IS NOT ENTITLED TO MAKE ITS AUTHORITY A PRETEXT
FOR INTERFERENCE WITH THE RIGHT OF DISCHARGE WHEN THAT RIGHT IS
EXERCISED FOR OTHER REASONS THAN SUCH INTIMIDATION AND COERCION."  SEE,
ALSO, ASSOCIATED PRESS V. NATIONAL LABOR RELATIONS BOARD, 301 U.S. 103,
132.  COMPARE TEXAS & NEW ORLEANS R. CO. V. BROTHERHOOD, 281 U.S. 548,
571; VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515,
559. 

IT IS APPARENT UNDER THAT CONSTRUCTION OF THE ACT THAT HAD THERE BEEN
NO STRIKE, AND EMPLOYEES HAD BEEN GUILTY OF UNLAWFUL CONDUCT IN SEIZING
OR COMMITTING DEPREDATIONS UPON THE PROPERTY OF THEIR EMPLOYER, THAT
CONDUCT WOULD HAVE BEEN GOOD REASON FOR DISCHARGE, AS DISCHARGE ON THAT
GROUND WOULD NOT BE FOR THE PURPOSE OF INTIMIDATING OR COERCING
EMPLOYEES WITH RESPECT TO THEIR RIGHT OF SELF-ORGANIZATION OR
REPRESENTATION, OR BECAUSE OF ANY LAWFUL UNION ACTIVITY, BUT WOULD REST
UPON AN INDEPENDENT AND ADEQUATE BASIS. 

BUT THE BOARD, IN EXERCISING ITS AUTHORITY UNDER SEC. 10(C) TO
REINSTATE "EMPLOYEES," INSISTS THAT HERE THE STATUS OF THE EMPLOYEES
WAS CONTINUED, DESPITE DISCHARGE FOR UNLAWFUL CONDUCT, BY VIRTUE OF THE
DEFINITION OF THE TERM "EMPLOYEE" IN SEC. 2(3).  BY THAT DEFINITION THE
TERM INCLUDES 

"ANY INDIVIDUAL WHOSE WORK HAS CEASED AS A CONSEQUENCE OF, OR IN
CONNECTION WITH, ANY CURRENT LABOR DISPUTE OR BECAUSE OF ANY UNFAIR
LABOR PRACTICE, AND WHO HAS NOT OBTAINED ANY OTHER REGULAR AND
SUBSTANTIALLY EQUIVALENT EMPLOYMENT,  ...  " 

WE THINK THAT THE ARGUMENT MISCONSTRUES THE STATUTE.  WE ARE UNABLE
TO CONCLUDE THAT CONGRESS INTENDED TO COMPEL EMPLOYERS TO RETAIN
PERSONS IN THEIR EMPLOY REGARDLESS OF THEIR UNLAWFUL CONDUCT,  - TO
INVEST THOSE WHO GO ON STRIKE WITH AN IMMUNITY FROM DISCHARGE FOR ACTS
OF TRESPASS OR VIOLENCE AGAINST THE EMPLOYER'S PROPERTY, WHICH THEY
WOULD NOT HAVE ENJOYED HAD THEY REMAINED AT WORK.  APART FROM THE
QUESTION OF THE CONSTITUTIONAL VALIDITY OF AN ENACTMENT OF THAT SORT,
IT IS ENOUGH TO SAY THAT SUCH A LEGISLATIVE INTENTION SHOULD BE FOUND
IN SOME DEFINITE AND UNMISTAKABLE EXPRESSION.  WE FIND NO SUCH
EXPRESSION IN THE CITED PROVISION. 

WE THINK THAT THE TRUE PURPOSE OF CONGRESS IS REASONABLY CLEAR. 
CONGRESS WAS INTENT UPON THE PROTECTION OF THE RIGHT OF EMPLOYEES TO
SELF-ORGANIZATION AND TO THE SELECTION OF REPRESENTATIVES OF THEIR OWN
CHOOSING FOR COLLECTIVE BARGAINING WITHOUT RESTRAINT OR COERCION. 
NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., SUPRA,
P. 33.  TO ASSURE THAT PROTECTION, THE EMPLOYER IS NOT PERMITTED TO
DISCHARGE HIS EMPLOYEES BECAUSE OF UNION ACTIVITY OR AGITATION FOR
COLLECTIVE BARGAINING.  ASSOCIATED PRESS V. NATIONAL LABOR RELATIONS
BOARD, SUPRA.  THE CONDUCT THUS PROTECTED IS LAWFUL CONDUCT.  CONGRESS
ALSO RECOGNIZED THE RIGHT TO STRIKE,  - THAT THE EMPLOYEES COULD
LAWFULLY CEASE WORK AT THEIR OWN VOLITION BECAUSE OF THE FAILURE OF THE
EMPLOYER TO MEET THEIR DEMANDS.  SECTION 13 PROVIDES THAT NOTHING IN
THE ACT "SHALL BE CONSTRUED SO AS TO INTERFERE WITH OR IMPEDE OR
DIMINISH IN ANY WAY THE RIGHT TO STRIKE."  BUT THIS RECOGNITION OF "THE
RIGHT TO STRIKE" PLAINLY CONTEMPLATES A LAWFUL STRIKE,  - THE EXERCISE
OF THE UNQUESTIONED RIGHT TO QUIT WORK.  AS WE SAID IN NATIONAL LABOR
RELATIONS BOARD V. MACKAY RADIO & TELEGRAPH CO., 304 U.S. 333, 347, "IF
MEN STRIKE IN CONNECTION WITH A CURRENT LABOR DISPUTE THEIR ACTION IS
NOT TO BE CONSTRUED AS A RENUNCIATION OF THE EMPLOYMENT RELATION AND
THEY REMAIN EMPLOYEES FOR THE REMEDIAL PURPOSES SPECIFIED IN THE ACT." 
THERE IS THUS ABUNDANT OPPORTUNITY FOR THE OPERATION OF SEC. 2(3)
WITHOUT CONSTRUING IT AS COUNTENANCING LAWLESSNESS OR AS INTENDED TO
SUPPORT EMPLOYEES IN ACTS OF VIOLENCE AGAINST THE EMPLOYER'S PROPERTY
BY MAKING IT IMPOSSIBLE FOR THE EMPLOYER TO TERMINATE THE RELATION UPON
THAT INDEPENDENT GROUND. 

HERE THE STRIKE WAS ILLEGAL IN ITS INCEPTION AND PROSECUTION.  AS THE
BOARD FOUND, IT WAS INITIATED BY THE DECISION OF THE UNION COMMITTEE
"TO TAKE OVER AND HOLD TWO OF THE RESPONDENT'S 'KEY' BUILDINGS."  IT
WAS PURSUANT TO THAT DECISION THAT THE MEN OCCUPIED THE BUILDINGS AND
THE WORK STOPPED.  THIS WAS NOT THE EXERCISE OF "THE RIGHT TO STRIKE"
TO WHICH THE ACT REFERRED.  IT WAS NOT A MERE QUITTING OF WORK AND
STATEMENT OF GRIEVANCES IN THE EXERCISE OF PRESSURE RECOGNIZED AS
LAWFUL.  IT WAS AN ILLEGAL SEIZURE OF THE BUILDINGS IN ORDER TO PREVENT
THEIR USE BY THE EMPLOYER IN A LAWFUL MANNER AND THUS BY ACTS OF FORCE
AND VIOLENCE TO COMPEL THE EMPLOYER TO SUBMIT.  WHEN THE EMPLOYEES
RESORTED TO THAT SORT OF COMPULSION THEY TOOK A POSITION OUTSIDE THE
PROTECTION OF THE STATUTE AND ACCEPTED THE RISK OF THE TERMINATION OF
THEIR EMPLOYMENT UPON GROUNDS ASIDE FROM THE EXERCISE OF THE LEGAL
RIGHTS WHICH THE STATUTE WAS DESIGNED TO CONSERVE. 

(3)  THE BOARD CONTENDS THAT ITS ORDER IS VALID UNDER THE TERMS OF
THE ACT "REGARDLESS OF WHETHER THE MEN REMAINED EMPLOYEES."  THE BOARD
BASES ITS CONTENTION ON THE GENERAL AUTHORITY, CONFERRED BY SEC. 10(C),
TO REQUIRE THE EMPLOYER TO TAKE SUCH AFFIRMATIVE ACTION AS WILL
"EFFECTUATE THE POLICIES" OF THE ACT.  SUCH ACTION, IT IS ARGUED, MAY
EMBRACE NOT ONLY REINSTATEMENT OF THOSE WHOSE STATUS AS EMPLOYEES HAS
BEEN CONTINUED BY VIRTUE OF SEC. 2(3), BUT ALSO A REQUIREMENT OF THE
"REEMPLOYMENT" OF THOSE WHO HAVE CEASED TO BE EMPLOYED. 

THE AUTHORITY TO REQUIRE AFFIRMATIVE ACTION TO "EFFECTUATE THE
POLICIES" OF THE ACT IS BROAD BUT IT IS NOT UNLIMITED.  IT HAS THE
ESSENTIAL LIMITATIONS WHICH INHERE IN THE VERY POLICIES OF THE ACT
WHICH THE BOARD INVOKES.  THUS IN CONSOLIDATED EDISON CO. V. NATIONAL
LABOR RELATIONS BOARD, 305 U.S. 197, WE HELD THAT THE AUTHORITY TO
ORDER AFFIRMATIVE ACTION DID 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 IS OF THE OPINION THAT THE POLICIES OF THE ACT
MAY BE EFFECTUATED BY SUCH AN ORDER.  WE HELD THAT THE POWER TO COMMAND
AFFIRMATIVE ACTION IS REMEDIAL, NOT PUNITIVE, AND IS TO BE EXERCISED IN
AID OF THE BOARD'S AUTHORITY TO RESTRAIN VIOLATIONS AND AS A MEANS OF
REMOVING OR AVOIDING THE CONSEQUENCES OF VIOLATION WHERE THOSE
CONSEQUENCES ARE OF A KIND TO THWART THE PURPOSES OF THE ACT. 

WE REPEAT THAT THE FUNDAMENTAL POLICY OF THE ACT IS TO SAFEGUARD THE
RIGHTS OF SELF-ORGANIZATION AND COLLECTIVE BARGAINING, AND THUS BY THE
PROMOTION OF INDUSTRIAL PEACE TO REMOVE OBSTRUCTIONS TO THE FREE FLOW
OF COMMERCE AS DEFINED IN THE ACT.  THERE IS NOT A LINE IN THE STATUTE
TO WARRANT THE CONCLUSION THAT IT IS ANY PART OF THE POLICIES OF THE
ACT TO ENCOURAGE EMPLOYEES TO RESORT TO FORCE AND VIOLENCE IN DEFIANCE
OF THE LAW OF THE LAND.  ON THE CONTRARY, THE PURPOSE OF THE ACT IS TO
PROMOTE PEACEFUL SETTLEMENTS OF DISPUTES BY PROVIDING LEGAL REMEDIES
FOR THE INVASION OF THE EMPLOYEES' RIGHTS.  ELECTIONS MAY BE ORDERED TO
DECIDE WHAT REPRESENTATIVES ARE DESIRED BY THE MAJORITY OF EMPLOYEES IN
APPROPRIATE UNITS AS DETERMINED BY THE BOARD.  TO SECURE THE PREVENTION
OF UNFAIR LABOR PRACTICES BY EMPLOYERS, COMPLAINTS MAY BE FILED AND
HEARD AND ORDERS MADE.  THE AFFIRMATIVE ACTION THAT IS AUTHORIZED IS TO
MAKE THESE REMEDIES EFFECTIVE IN THE REDRESS OF THE EMPLOYEES' RIGHTS,
TO ASSURE THEM SELF-ORGANIZATION AND FREEDOM IN REPRESENTATION, NOT TO
LICENSE THEM TO COMMIT TORTIOUS ACTS OR TO PROTECT THEM FROM THE
APPROPRIATE CONSEQUENCES OF UNLAWFUL CONDUCT.  WE ARE OF THE OPINION
THAT TO PROVIDE FOR THE REINSTATEMENT OR REEMPLOYMENT OF EMPLOYEES
GUILTY OF THE ACTS WHICH THE BOARD FINDS TO HAVE BEEN COMMITTED IN THIS
INSTANCE WOULD NOT ONLY NOT EFFECTUATE ANY POLICY OF THE ACT BUT WOULD
DIRECTLY TEND TO MAKE ABORTIVE ITS PLAN FOR PEACEABLE PROCEDURE. 

WHAT WE HAVE SAID ALSO MEETS THE POINT THAT THE QUESTION WHETHER
REINSTATEMENT OR REEMPLOYMENT WOULD EFFECTUATE THE POLICIES OF THE ACT
IS COMMITTED TO THE DECISION OF THE BOARD IN THE EXERCISE OF ITS
DISCRETION SUBJECT ONLY TO THE LIMITATION THAT ITS ACTION MAY NOT BE
"ARBITRARY, UNREASONABLE OR CAPRICIOUS."  THE BOARD RECOGNIZES THAT IN
"MANY SITUATIONS" REINSTATEMENT OR REEMPLOYMENT AFTER DISCHARGE FOR
ILLEGAL ACTS WOULD NOT BE PROPER, BUT THE BOARD INSISTS THAT IT WAS
PROPER IN THIS INSTANCE.  FOR THE REASONS WE HAVE GIVEN WE DISAGREE
WITH THAT VIEW.  WE THINK THAT A CLEARER CASE COULD HARDLY BE PRESENTED
AND THAT, WHATEVER DISCRETION MAY BE DEEMED TO BE COMMITTED TO THE
BOARD, ITS LIMITS WERE TRANSCENDED BY THE ORDER UNDER REVIEW. 

THE BOARD STRESSES THE FACT THAT, WHEN RESPONDENT WAS ABLE TO OBTAIN
POSSESSION OF ITS BUILDINGS AND TO RESUME OPERATIONS, IT OFFERED
REEMPLOYMENT TO MANY OF THE MEN WHO HAD PARTICIPATED IN THE STRIKE. 
THE CONTENTION CONFUSES WHAT AN EMPLOYER MAY VOLUNTARILY AND LEGALLY DO
IN THE EXERCISE OF HIS RIGHT OF SELECTION AND WHAT THE BOARD IS
ENTITLED TO COMPEL.  IN ANNOUNCING THE REOPENING RESPONDENT STATED ITS
BELIEF THAT A LARGE NUMBER OF MEN WHO HAD TAKEN PART IN THE SEIZURE OF
THE PLANT WERE COMPELLED TO DO SO THROUGH COERCION AND INTIMIDATION AND
THAT APPLICATIONS FOR REEMPLOYMENT FROM SUCH MEN WOULD RECEIVE
FAVORABLE CONSIDERATION.  THE BOARD CHALLENGES THE STATEMENT THAT
RESPONDENT LIMITED ITS REHIRING TO SUCH APPLICANTS.  THE BOARD POINTS
TO EVIDENCE SHOWING THAT EVERYONE WHO APPLIED FOR REEMPLOYMENT DURING
THE PERIOD OF RESTAFFING WAS TAKEN BACK WITHOUT CONDITION EXCEPT TWO
EMPLOYEES WHO WERE ADVANCED IN YEARS AND WERE NOT REINSTATED SOLELY FOR
THAT REASON, AND TO THE TESTIMONY OF THE SUPERINTENDENT THAT AT LEAST
THIRTY-SEVEN WERE REHIRED "WHO HAD BEEN IN THE SIT-DOWN." 

WE FIND IT UNNECESSARY TO CONSIDER IN DETAIL THE RESPECTIVE
CONTENTIONS AS TO RESPONDENT'S OFFER OF REEMPLOYMENT, FOR WE THINK THAT
ITS ACTION DID NOT ALTER THE UNLAWFUL CHARACTER OF THE STRIKE OR
RESPONDENT'S RIGHTS IN THAT ASPECT.  THE IMPORTANT POINT IS THAT
RESPONDENT STOOD ABSOLVED BY THE CONDUCT OF THOSE ENGAGED IN THE "SIT
DOWN" FROM ANY DUTY TO REEMPLOY THEM, BUT RESPONDENT WAS NEVERTHELESS
FREE TO CONSIDER THE EXIGENCIES OF ITS BUSINESS AND TO OFFER
REEMPLOYMENT IF IT CHOSE.  IN SO DOING IT WAS SIMPLY EXERCISING ITS
NORMAL RIGHT TO SELECT ITS EMPLOYEES. 

FOURTH.  THE REQUIREMENT OF REINSTATEMENT OF EMPLOYEES WHO AIDED AND
ABETTED THOSE WHO SEIZED AND HELD THE BUILDINGS.  - THERE IS A GROUP OF
FOURTEEN PERSONS IN THIS CLASS WHO WERE NOT WITHIN THE BUILDINGS AND
HENCE DO NOT APPEAR TO HAVE BEEN WITHIN THE ANNOUNCEMENT OF DISCHARGE,
BUT WHO WENT ON STRIKE AND FALL WITHIN THE ORDER FOR REINSTATEMENT. 
THE BOARD MADE NO SEPARATE FINDINGS WITH RESPECT TO THESE PARTICULAR
PERSONS AND REFERS US TO THE EVIDENCE TO SHOW THEIR RELATION TO THE
TRANSACTIONS UNDER REVIEW.  THIS, HOWEVER, SUFFICIENTLY APPEARS IN THE
STIPULATION OF FACTS, TO WHICH THE BOARD WAS A PARTY, NAMING IN
PARAGRAPH 12 THESE FOURTEEN PERSONS AND DESCRIBING THEIR CONDUCT AS
FOLLOWS: 

"ALL OF THE FOLLOWING MEN WERE EMPLOYEES OF THE COMPANY ON FEBRUARY
17, 1937, BUT DID NOT PARTICIPATE IN THE SEIZURE AND RETENTION OF THE
BUILDING, BUT AIDED AND ABETTED THE MEN WITHIN THE SAID BUILDINGS 3 AND
5 IN THE RETENTION OF THE SAID BUILDINGS BY SOLICITING, PROCURING AND
DELIVERING OF FOOD, BEDDING, CIGARETTES, STOVES, OR OTHER SUPPLIES, OR
IN SOME OTHER MANNER, AND THEREBY ASSISTED THE SAID MEN IN BUILDINGS 3
AND 5 TO REMAIN THEREIN CONTRARY TO THE INJUNCTIONAL ORDER AND WRIT OF
INJUNCTION HERETOFORE MENTIONED; THAT ALL OF THE SAID MEN NAMED IN THIS
PARAGRAPH HAD ACTUAL KNOWLEDGE OF THE ISSUANCE OF THE SAID INJUNCTIONAL
ORDER AND WRIT OF INJUNCTION ORDERING AND DIRECTING THE MEN IN
BUILDINGS 3 AND 5 TO VACATE THE SAME, AND THAT THEIR ACTIVITIES IN
AIDING AND ABETTING THE MEN IN BUILDINGS 3 AND 5 WERE DONE WITH A VIEW
TO AND FOR THE PURPOSE OF ASSISTING THE SAID MEN TO REMAIN IN THE SAID
BUILDINGS AFTER THE ISSUANCE OF THE SAID INJUNCTIONAL ORDER AND WRIT OF
INJUNCTION AND WITH KNOWLEDGE THEREOF.  NONE OF THE MEN NAMED IN THIS
PARAGRAPH WERE DISCHARGED BY THE COMPANY ON FEBRUARY 17, 1937, OR
THEREAFTER, AND NONE OF THESE MEN WERE RECALLED TO WORK BY THE COMPANY
UPON THE RESUMPTION OF PLANT OPERATIONS SHORTLY AFTER FEBRUARY 26TH,
1937:"  (THE NAMES FOLLOW). 

IT CANNOT BE SAID THAT INDEPENDENTLY OF THE ACT RESPONDENT WAS BOUND
TO REINSTATE THOSE WHO HAD THUS AIDED AND ABETTED THE "SIT-DOWN"
STRIKERS IN DEFYING THE COURT'S ORDER.  IF IT BE ASSUMED THAT BY VIRTUE
OF SEC. 2(3) THEY STILL HAD THE STATUS OF "EMPLOYEES," THAT PROVISION
DID NOT AUTOMATICALLY PROVIDE REINSTATEMENT.  WHETHER THE BOARD COULD
ORDER IT MUST TURN ON THE APPLICATION OF THE PROVISION EMPOWERING THE
BOARD TO REQUIRE "SUCH AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF
EMPLOYEES" AS WILL "EFFECTUATE THE POLICIES" OF THE ACT.  WE ARE THUS
RETURNED TO THE QUESTION ALREADY DISCUSSED AND WE THINK THAT IN THAT
RESPECT THESE AIDERS AND ABETTORS, LIKEWISE GUILTY OF UNLAWFUL CONDUCT,
ARE IN NO BETTER CASE THAN THE "SIT-DOWN" STRIKERS THEMSELVES.  WE FIND
NO GROUND FOR CONCLUDING THAT THERE IS ANY POLICY OF THE ACT WHICH
JUSTIFIES THE BOARD IN ORDERING REINSTATEMENT IN SUCH CIRCUMSTANCES. 

FIFTH.  THERE ARE NINE OTHER PERSONS APPARENTLY EMBRACED WITHIN THE
ORDER OF REINSTATEMENT AS TO WHICH RESPONDENT INTERPOSES SPECIAL
OBJECTIONS.  AS TO SEVEN, RESPONDENT OBJECTS TO THE REINSTATEMENT UPON
THE GROUND THAT THEY WERE INEFFICIENT AND THAT NO SHOWING OF UNION
ACTIVITY BY ANY OF THEM WAS MADE.  AS TO TWO OTHERS, RESPONDENT
CONTENDS THAT THEY REFUSED ITS REQUEST TO RETURN TO WORK WITHOUT ANY
CONDITIONS AND THAT THEIR PLACES WERE ACCORDINGLY FILLED. 

WITH RESPECT TO THESE NINE PERSONS, AND TO A MISCELLANEOUS GROUP OF
FIVE OTHERS INCLUDING THREE AS TO WHOM THE TRIAL EXAMINER RECOMMENDED
DISMISSAL OF THE COMPLAINT, THE BOARD HAS NOT SUPPLIED SPECIFIC
FINDINGS UPON THE POINTS IN CONTROVERSY TO SUSTAIN ITS ORDER. 

WE ARE OF THE OPINION THAT THE CIRCUIT COURT OF APPEALS DID NOT ERR
IN SETTING ASIDE THE REQUIREMENT OF REINSTATEMENT. 

SIXTH.  THE REQUIREMENT THAT RESPONDENT SHALL BARGAIN COLLECTIVELY
WITH LODGE 66 OF THE AMALGAMATED ASSOCIATION AS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE DESCRIBED UNIT. 

RESPONDENT RESUMED WORK ABOUT MARCH 12, 1937.  THE BOARD'S ORDER WAS
MADE ON MARCH 14, 1938.  IN VIEW OF THE CHANGE IN THE SITUATION BY
REASON OF THE VALID DISCHARGE OF THE "SIT-DOWN" STRIKERS AND THE
FILLING OF POSITIONS WITH NEW MEN, WE SEE NO BASIS FOR A CONCLUSION
THAT AFTER THE RESUMPTION OF WORK LODGE 66 WAS THE CHOICE OF A MAJORITY
OF RESPONDENT'S EMPLOYEES FOR THE PURPOSE OF COLLECTIVE BARGAINING. 
THE BOARD'S ORDER PROPERLY REQUIRES RESPONDENT TO DESIST FROM
INTERFERING IN ANY MANNER WITH ITS EMPLOYEES IN THE EXERCISE OF THEIR
RIGHT TO SELF-ORGANIZATION AND TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING.  BUT IT IS A DIFFERENT MATTER TO
REQUIRE RESPONDENT TO TREAT LODGE 66 IN THE ALTERED CIRCUMSTANCES AS
SUCH A REPRESENTATIVE.  IF IT IS CONTENDED THAT LODGE 66 IS THE CHOICE
OF THE EMPLOYEES, THE BOARD HAS ABUNDANT AUTHORITY TO SETTLE THE
QUESTION BY REQUIRING AN ELECTION. 

SEVENTH.  THE REQUIREMENT THAT RESPONDENT SHALL WITHDRAW ALL
RECOGNITION FROM RARE METAL WORKERS OF AMERICA, LOCAL NO. 1. 

WHILE RESPONDENT PRESENTS A STRONG PROTEST, INSISTING THAT LOCAL NO.
1 OF THE RARE METAL WORKERS WAS THE FREE CHOICE OF THE EMPLOYEES AFTER
WORK WAS RESUMED, WE CANNOT SAY THAT THERE IS NOT SUBSTANTIAL EVIDENCE
THAT THE FORMATION OF THIS ORGANIZATION WAS BROUGHT ABOUT THROUGH
PROMOTION EFFORTS OF RESPONDENT CONTRARY TO THE PROVISION OF SEC. 8(2),
AND WE THINK THAT THE ORDER OF THE BOARD IN THIS RESPECT SHOULD BE
SUSTAINED.  WHETHER RARE METAL WORKERS OF AMERICA, LOCAL NO. 1, OR ANY
OTHER ORGANIZATION, IS THE CHOICE OF THE MAJORITY OF THE EMPLOYEES IN
THE PROPER UNIT CAN BE DETERMINED BY PROCEEDINGS OPEN TO THE BOARD. 

THE PROVISIONS OF THE BOARD'S ORDER CONTAINED IN PARAGRAPH 1,
SUBDIVISIONS (A) AND (B), IN PARAGRAPH 2, SUBDIVISION (D), AND IN
PARAGRAPH 2, SUBDIVISIONS (E) AND (F) SO FAR AS THESE REFER TO THE
FIRST-MENTIONED PROVISIONS, AND THE FINAL PARAGRAPH OF THE ORDER
DISMISSING THE CHARGE UNDER SEC. 8(3) OF THE ACT, ARE SUSTAINED.  THE
OTHER PROVISIONS OF THE ORDER ARE SET ASIDE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS MODIFIED ACCORDINGLY
AND AS MODIFIED IS AFFIRMED.  MODIFIED AND AFFIRMED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION AND
DECISION OF THIS CASE. 

MR. JUSTICE STONE, CONCURRING IN PART. 

I CONCUR IN SO MUCH OF THE COURT'S DECISION AS HOLDS THAT THE BOARD
WAS WITHOUT STATUTORY AUTHORITY TO ORDER REINSTATEMENT OF THOSE
EMPLOYEES WHO WERE DISCHARGED ON FEBRUARY 17, 1937.  BUT I REST THIS
CONCLUSION SOLELY ON THE CONSTRUCTION OF SEC. 2(3) AND SEC. 10(C) OF
THE NATIONAL LABOR RELATIONS ACT.  BY SEC. 10(C) THE BOARD IS GIVEN
AUTHORITY TO REINSTATE IN THEIR EMPLOYMENT ONLY THOSE WHO ARE
"EMPLOYEES."  BEFORE THE BOARD MADE ITS ORDER, RESPONDENT'S EMPLOYEES,
BY REASON OF THEIR LAWFUL DISCHARGE FOR CAUSE, HAD LOST THEIR STATUS AS
SUCH, WHICH WOULD OTHERWISE HAVE BEEN PRESERVED TO THEM UNDER SEC.
2(3).   THE NATIONAL LABOR RELATIONS ACT, AS ITS PURPOSE AND SCOPE ARE
DISCLOSED BY ITS PREAMBLE AND OPERATIVE PROVISIONS AND EXPLAINED BY THE
REPORTS OF THE CONGRESSIONAL COMMITTEES RECOMMENDING ITS ENACTMENT,
REPORT NO. 573, SENATE COMMITTEE ON EDUCATION AND LABOR, 74TH CONG.,
1ST SESS.; REPORT NO. 1147, HOUSE COMMITTEE ON LABOR, 74TH CONG., 1ST
SESS., IS AIMED AT SECURING THE PEACEABLE SETTLEMENT OF LABOR DISPUTES
BY THE PREVENTION OF UNFAIR LABOR PRACTICES OF THE EMPLOYER AND BY
REQUIRING HIM TO BARGAIN COLLECTIVELY WITH HIS EMPLOYEES.  SINCE ONE
MEANS ADOPTED BY THE ACT TO SECURE THIS END IS THE REINSTATEMENT, BY
THE DISCRETIONARY ACTION OF THE NATIONAL LABOR RELATIONS BOARD, OF
EMPLOYEES WHEN UNFAIR LABOR PRACTICES HAVE CAUSED THEM TO CEASE WORK,
IT WAS NECESSARY TO PROVIDE THAT THEY SHOULD NOT LOSE THEIR STATUS AS
EMPLOYEES BY REASON OF THAT FACT.  THIS WAS ACCOMPLISHED BY SEC. 2(3),
WHICH PROVIDES: 

"THE TERM 'EMPLOYEE' SHALL INCLUDE  ...  ANY INDIVIDUAL WHOSE WORK
HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY CURRENT
LABOR DISPUTE OR BECAUSE OF ANY UNFAIR LABOR PRACTICE.  ...  " 

HAVING IN MIND THE PURPOSES OF THE ACT AND THE END SOUGHT BY THE
ENACTMENT OF THIS SECTION, I THINK ITS FAIR MEANING IS THAT ATTRIBUTED
TO IT BY THE SENATE COMMITTEE REPORT, SUPRA, PP. 6-7, WHICH DECLARED: 

"THE BILL THUS OBSERVES THE PRINCIPLE THAT MEN DO NOT LOSE THEIR
RIGHT TO BE CONSIDERED AS EMPLOYEES FOR THE PURPOSES OF THIS BILL
MERELY BY COLLECTIVELY REFRAINING FROM WORK DURING THE COURSE OF A
LABOR CONTROVERSY.  ...  AND TO HOLD THAT A WORKER WHO BECAUSE OF AN
UNFAIR LABOR PRACTICE HAS BEEN DISCHARGED OR LOCKED OUT OR GONE ON
STRIKE IS NO LONGER AN EMPLOYEE, WOULD BE TO GIVE LEGAL SANCTION TO AN
ILLEGAL ACT AND TO DENY REDRESS TO THE INDIVIDUAL INJURED THEREBY." 

BUT IT DOES NOT FOLLOW BECAUSE THE SECTION PRESERVES THIS RIGHT TO
EMPLOYEES WHERE THEY HAVE CEASED WORK BY REASON OF A LABOR DISPUTE OR
UNFAIR LABOR PRACTICE, THAT ITS LANGUAGE IS TO BE READ AS DEPRIVING THE
EMPLOYER OF HIS RIGHT, WHICH THE STATUTE DOES NOT PURPORT TO WITHDRAW,
TO TERMINATE THE EMPLOYER-EMPLOYEE RELATIONSHIP FOR REASONS DISSOCIATED
WITH THE STOPPAGE OF WORK BECAUSE OF UNFAIR LABOR PRACTICES.  THE
LANGUAGE WHICH SAVES THE EMPLOYEE STATUS FOR THOSE WHO HAVE CEASED WORK
BECAUSE OF UNFAIR LABOR PRACTICES DOES NOT EMBRACE ALSO THOSE WHO HAVE
LOST THEIR STATUS FOR A WHOLLY DIFFERENT REASON - THEIR DISCHARGE FOR
UNLAWFUL PRACTICES WHICH THE ACT DOES NOT COUNTENANCE. 

THERE IS NOTHING IN THE ACT, READ AS A WHOLE, TO INDICATE SUCH A
PURPOSE, AND THERE IS NO LANGUAGE IN SEC. 2(3) DIRECTED TO SUCH AN
END.  I CANNOT ATTRIBUTE TO CONGRESS IN THE ADOPTION OF SEC. 2(3),
EXPLAINED AS IT WAS IN THE SENATE COMMITTEE REPORT, A PURPOSE TO CUT
OFF THE RIGHT OF AN EMPLOYER TO DISCHARGE EMPLOYEES WHO HAVE DESTROYED
HIS FACTORY AND TO REFUSE TO REEMPLOY THEM, IF THAT IS THE REAL REASON
FOR HIS ACTION.  IF A PLAINER INDICATION OF SUCH A PURPOSE HAD BEEN
GIVEN BY THE LANGUAGE OF SEC. 2(3), I SHOULD HAVE THOUGHT IT OF
SUFFICIENTLY DUBIOUS CONSTITUTIONALITY TO REQUIRE US TO CONSTRUE ITS
LANGUAGE OTHERWISE, IF THAT COULD REASONABLY BE DONE, LEAVING IT TO
CONGRESS TO SAY SO, IN UNMISTAKABLE LANGUAGE, IF IT REALLY MEANT TO
IMPOSE THAT DUTY ON THE EMPLOYER. 

AS TO THE FOURTEEN EMPLOYEES WHO AIDED AND ABETTED THE SIT-DOWN
STRIKE, BUT WHO WERE NOT DISCHARGED, I THINK THEY RETAINED THEIR STATUS
UNDER SEC. 2(3), AND THAT THE BOARD HAD POWER TO REINSTATE THEM. 
WHETHER THAT POWER SHOULD BE EXERCISED WAS A MATTER COMMITTED TO THE
BOARD'S DISCRETION, NOT OURS. 

IN OTHER RESPECTS I CONCUR WITH THE DECISION OF THE COURT. 

MR. JUSTICE REED, DISSENTING IN PART. 

THIS COURT AGREES WITH THE CONCLUSION OF THE LABOR BOARD THAT THE
RESPONDENT WAS GUILTY OF UNFAIR LABOR PRACTICES, PRIOR TO THE STRIKE,
IN CAMPAIGNING FOR A COMPANY UNION, ISOLATING THE UNION PRESIDENT,
MAKING, THROUGH ITS SUPERINTENDENT, ANTI-UNION STATEMENTS, AND
EMPLOYING A LABOR SPY.  IT ALSO ACCEPTS THE BOARD'S CONCLUSION THAT
THERE WAS FURTHER PRE-STRIKE VIOLATION BY RESPONDENT OF THE LABOR
RELATIONS ACT BY REFUSAL TO BARGAIN COLLECTIVELY.  NONE QUESTIONS THE
POWER OF THE BOARD TO REINSTATE STRIKING EMPLOYEES AS A MEANS OF
REDRESS FOR UNFAIR LABOR PRACTICES.  THE ISSUE WHILE IMPORTANT IS
NARROW.  CAN AN EMPLOYEE, ON STRIKE OR LET OUT BY AN UNFAIR LABOR
PRACTICE, BE DISCHARGED, FINALLY, BY AN EMPLOYER SO AS TO BE INELIGIBLE
FOR REINSTATEMENT UNDER THE ACT? 

THE ISSUE SO STATED GLOWS FEEBLY APART FROM THE FIRE OF CONTROVERSY. 
BUT IT MAY PERMIT A MORE OBJECTIVE APPRAISAL THAN TO EXAMINE IT WHEN
ILLUSTRATED BY CONDUCT ON THE PART OF THE EMPLOYEES WHICH IS THOUGHT TO
PUT "A PREMIUM ON RESORT TO FORCE" AND TO SUBVERT "THE PRINCIPLES OF
LAW AND ORDER WHICH LIE AT THE FOUNDATIONS OF SOCIETY."  NONE ON EITHER
SIDE OF THE DISPUTED ISSUE NEED BE SUSPECTED OF "COUNTENANCING
LAWLESSNESS," OR OF ENCOURAGING EMPLOYEES TO RESORT TO "VIOLENCE IN
DEFIANCE OF THE LAW OF THE LAND."  DISAPPROVAL OF A SIT-DOWN DOES NOT
LOGICALLY COMPEL THE ACCEPTANCE OF THE THEORY THAT AN EMPLOYER HAS THE
POWER TO BAR HIS STRIKING EMPLOYEE FROM THE PROTECTION OF THE LABOR
ACT. 

THE LABOR ACT WAS ENACTED IN AN EFFORT TO PROTECT INTERSTATE COMMERCE
FROM THE INTERRUPTIONS OF LABOR DISPUTES.  THIS OBJECT WAS SOUGHT
THROUGH PROHIBITION OF CERTAIN PRACTICES DEEMED UNFAIR TO LABOR, AND
THE SANCTIONS ADOPTED TO ENFORCE THE PROHIBITIONS INCLUDED
REINSTATEMENT OF EMPLOYEES.  TO ASSURE THAT THE STATUS OF STRIKERS WAS
NOT CHANGED FROM EMPLOYEES TO INDIVIDUALS BEYOND THE PROTECTION OF THE
ACT, THE TERM EMPLOYEE WAS DEFINED TO INCLUDE "ANY INDIVIDUAL WHOSE
WORK HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY CURRENT
LABOR DISPUTE OR BECAUSE OF ANY UNFAIR LABOR PRACTICE  ...  " SEC.
2(3), ACT OF JULY 5, 1935.  WITHOUT THIS ASSURANCE OF THE CONTINUED
PROTECTION OF THE ACT, THE STRIKING EMPLOYEE WOULD BE QUICKLY PUT
BEYOND THE PALE OF ITS PROTECTION BY DISCHARGE.  AS NOW CONSTRUED BY
THE COURT, THE EMPLOYER MAY DISCHARGE ANY STRIKER, WITH OR WITHOUT
CAUSE, SO LONG AS THE DISCHARGE IS NOT USED TO INTERFERE WITH SELF
ORGANIZATION OR COLLECTIVE BARGAINING.  FRICTION EASILY ENGENDERED BY
LABOR STRIFE MAY READILY GIVE RISE TO CONDUCT, FROM NOSE-THUMBING TO
SABOTAGE, WHICH WILL GIVE FAIR OCCASION FOR DISCHARGE ON GROUNDS OTHER
THAN THOSE PROHIBITED BY THE LABOR ACT. 

THE CONGRESS SOUGHT BY CLEAR LANGUAGE TO ELIMINATE THIS PROLIFIC
SOURCE OF ILL FEELING BY THE PROVISION JUST QUOTED WHICH SHOULD BE
INTERPRETED IN ACCORDANCE WITH ITS LANGUAGE AS CONTINUING THE
ELIGIBILITY OF A STRIKER FOR REINSTATEMENT REGARDLESS OF CONDUCT BY THE
STRIKER OR ACTION BY THE EMPLOYER.  THE CONSTITUTIONAL PROBLEM INVOLVED
IN SUCH A CONCLUSION IS NOT DIFFERENT FROM THE ONE INVOLVED IN
COMPELLING AN EMPLOYER TO REINSTATE AN EMPLOYEE, DISCHARGED FOR UNION
ACTIVITY.  THERE IS HERE NO PROTECTION FOR UNLAWFUL ACTIVITY.  EVERY
PUNISHMENT WHICH COMPELLED OBEDIENCE TO LAW STILL REMAINS IN THE HANDS
OF THE PEACE OFFICERS.  IT IS ONLY THAT THE ACT OF CEASING WORK IN A
CURRENT LABOR DISPUTE INVOLVING UNFAIR LABOR PRACTICES SUSPENDS FOR A
PERIOD, NOT NOW NECESSARY TO DETERMINE, THE RIGHT OF AN EMPLOYER TO
TERMINATE THE RELATION.  THE INTERFERENCE WITH THE NORMAL EXERCISE OF
THE RIGHT TO DISCHARGE EXTENDS ONLY TO THE NECESSITY OF PROTECTING THE
RELATIONSHIP IN INDUSTRIAL STRIFE. 

THE POINT IS MADE THAT AN EMPLOYER SHOULD NOT BE COMPELLED TO
REEMPLOY AN EMPLOYEE GUILTY, PERHAPS, OF SABOTAGE.  THIS DEPENDS UPON
CIRCUMSTANCES.  IT IS THE FUNCTION OF THE BOARD TO WEIGH THE CHARGES
AND COUNTERCHARGES AND DETERMINE THE ADJUSTMENT MOST CONDUCIVE TO
INDUSTRIAL PEACE.  COURTS CERTAINLY SHOULD NOT INTERFERE WITH THE
NORMAL ACTION OF ADMINISTRATIVE BODIES IN SUCH CIRCUMSTANCES.  HERE
BOTH LABOR AND MANAGEMENT HAD ERRED GRIEVOUSLY IN THEIR RESPECTIVE
CONDUCT.  IT CANNOT BE SAID TO BE UNREASONABLE TO RESTORE BOTH TO THEIR
FORMER STATUS.  SUCH RESTORATION WOULD APPLY TO THE SIT-DOWN STRIKERS
AND THOSE STRIKING EMPLOYEES WHO AIDED AND ABETTED THEM. 

I AM OF THE VIEW THAT THE PROVISIONS OF THE ORDER OF THE BOARD
ORDERING AN OFFER OF REINSTATEMENT TO THE EMPLOYEES DISCUSSED ABOVE
SHOULD BE SUSTAINED.  AS THE REMAINDER OF THE ORDER IS AFFECTED BY THE
DETERMINATION UPON THIS ISSUE BUT NOT WHOLLY CONTROLLED BY THE
CONCLUSIONS, NO OPINION IS EXPRESSED AS TO THE OTHER REQUIREMENTS OF
THE ORDER. 

MR. JUSTICE BLACK CONCURS IN THIS DISSENT. 
..END :













EICHHOLZ V. COMM'N, 306 U.S. 268 


NO. 367.  ARGUED FEBRUARY 1, 1939.  - DECIDED FEBRUARY 27, 1939.  - 23
F.SUPP.  587, AFFIRMED. 


1.  UNDER JUDICIAL CODE SEC. 266, THAT PART OF A DECREE OF THE THREE
JUDGE DISTRICT COURT WHICH DENIED A PERMANENT INJUNCTION IS REVIEWABLE
DIRECTLY BY THIS COURT INDEPENDENTLY OF OTHER PROVISIONS OF THE DECREE,
NOT FINAL, CONCERNING A COUNTERCLAIM.  P. 269. 

2.  MERE PENDENCY BEFORE THE INTERSTATE COMMERCE COMMISSION OF AN
APPLICATION UNDER THE FEDERAL MOTOR CARRIER ACT TO OPERATE AS A MOTOR
CARRIER IN INTERSTATE COMMERCE DOES NOT SUPERSEDE THE AUTHORITY OF A
STATE TO ENFORCE REASONABLE REGULATIONS OF TRAFFIC UPON ITS HIGHWAYS
WITH RESPECT TO SUCH APPLICANT.  P. 273. 

3.  FOR THE EFFECTUATION OF ITS LAWS REQUIRING COMMON CARRIERS BY
MOTOR TO OBTAIN CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY BEFORE
OPERATING INTRASTATE, A STATE MAY FORBID INTRASTATE BUSINESS BY
CARRIERS WHO HAVE NOT SUCH CERTIFICATES BUT HAVE PERMITS FROM THE STATE
FOR USE OF ITS HIGHWAYS IN INTERSTATE COMMERCE ONLY; AND WHERE AN
INTERSTATE CARRIER EVADES THE PROHIBITION BY CARRYING GOODS FROM WITHIN
THE STATE TO A PLACE NEAR TO AND BEYOND ITS BOUNDARY AND THEN CARRYING
THEM BACK FOR DELIVERY IN THE STATE NEAR THE BOUNDARY, THE STATE MAY
REVOKE HIS PERMIT.  P. 273. 

IN THE ABSENCE OF THE EXERCISE OF FEDERAL AUTHORITY, AND IN THE LIGHT
OF LOCAL EXIGENCIES, THE STATE IS FREE TO ACT IN ORDER TO PROTECT ITS
LEGITIMATE INTERESTS EVEN THOUGH INTERSTATE COMMERCE IS DIRECTLY
AFFECTED. 

EICHHOLZ V. PUBLIC SERVICE COMMISSION OF MISSOURI ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MISSOURI. 

APPEAL FROM A DECREE DENYING A PRELIMINARY INJUNCTION AGAINST
ENFORCEMENT OF AN ORDER REVOKING THE APPELLANT'S PERMIT TO OPERATE IN
MISSOURI AS AN INTERSTATE CARRIER BY MOTOR. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A DECREE OF THE DISTRICT COURT, COMPOSED OF
THREE JUDGES, HOLDING VALID AN ORDER OF THE PUBLIC SERVICE COMMISSION
OF MISSOURI WHICH REVOKED APPELLANT'S PERMIT AS AN INTERSTATE CARRIER,
AND DENYING A PERMANENT INJUNCTION RESTRAINING THE COMMISSION AND
CERTAIN STATE OFFICERS FROM PROSECUTING SUITS AGAINST APPELLANT FOR
USING THE HIGHWAYS OF THE STATE IN THE TRANSPORTATION OF PROPERTY FOR
HIRE IN INTERSTATE COMMERCE.  23 F.SUPP.  587. 

BY A SUPPLEMENTARY ANSWER, THE PUBLIC SERVICE COMMISSION PLEADED A
COUNTERCLAIM FOR FEES ALLEGED TO BE DUE TO THE STATE FOR THE USE OF ITS
HIGHWAYS SINCE THE GRANTING OF THE RESTRAINING ORDER WHICH WAS ISSUED
ON THE INSTITUTION OF THE SUIT.  THE DISTRICT COURT ADJUDGED THE
DEFENDANTS ENTITLED TO RECOVER ON THE COUNTERCLAIM AND APPOINTED A
SPECIAL MASTER TO TAKE THE NECESSARY ACCOUNTING.  AS THE DECREE IS NOT
A FINAL ONE SO FAR AS THE COUNTERCLAIM IS CONCERNED, THE APPELLEES MOVE
TO DISMISS THE APPEAL.  THE MOTION IS DENIED.  THE DECREE DENIED A
PERMANENT INJUNCTION AND THIS COURT HAS JURISDICTION OF A DIRECT APPEAL
FROM THAT PART OF THE DECREE BY VIRTUE OF THE EXPRESS PROVISION OF THE
STATUTE.  JUDICIAL CODE, SEC. 266; 28 U.S.C. 380.  COMPARE PUBLIC
SERVICE COMM'N V. BRASHEAR FREIGHT LINES, ANTE, P. 204.  SEE SMITH V.
WILSON, 273 U.S. 388, 390, 391; STRATTON V. ST. LOUIS SOUTHWESTERN RY.
CO., 282 U.S. 10, 14. 

SINCE 1931 APPELLANT, FRANK EICHHOLZ, HAS OPERATED FREIGHT TRUCKS IN
INTERSTATE COMMERCE BETWEEN THE STATES OF MISSOURI, IOWA AND KANSAS AND
HAS MAINTAINED TERMINAL FACILITIES IN ST. LOUIS, MISSOURI, KANSAS CITY,
KANSAS, AND OTHER PLACES IN KANSAS AND IOWA.  PRIOR TO THE PASSAGE OF
THE FEDERAL MOTOR CARRIER ACT OF 1935(49 U.S.C. 301 ET SEQ.), HE
OBTAINED A PERMIT FROM THE PUBLIC SERVICE COMMISSION OF MISSOURI "TO
OPERATE AS A FREIGHT CARRYING MOTOR CARRIER OVER AN IRREGULAR ROUTE"
BETWEEN POINTS IN MISSOURI AND POINTS BEYOND THAT STATE, "EXCLUSIVELY
IN INTERSTATE COMMERCE."  HE DID NOT SEEK OR OBTAIN FROM THE COMMISSION
AN INTRASTATE PERMIT. 

ON THE PASSAGE OF THE FEDERAL ACT, APPELLANT APPLIED FOR A PERMIT
FROM THE INTERSTATE COMMERCE COMMISSION, AND THAT APPLICATION WAS STILL
PENDING AT THE TIME OF THE HEARING BELOW AND ARGUMENT HERE. 

WHEN THE STATE PERMIT WAS GRANTED, AND THEREAFTER, THERE WAS IN FORCE
RULE NO. 44 OF THE PUBLIC SERVICE COMMISSION WHICH PROVIDED AS
FOLLOWS: 

"NO DRIVER OR OPERATOR OPERATING UNDER AN INTERSTATE PERMIT SHALL
ACCEPT FOR TRANSPORTATION WITHIN THIS STATE ANY PERSON OR PROPERTY
KNOWN TO BE DESTINED TO A POINT WITHIN THE STATE OF MISSOURI.  IF SUCH
INTERSTATE CARRIER ACCEPTS WITHIN MISSOURI A PASSENGER WHOSE
DESTINATION IS BEYOND THE LIMITS OF THE STATE OF MISSOURI, SUCH
PASSENGER SHALL NOT BE PERMITTED TO TERMINATE HIS TRIP WITHIN THE STATE
OF MISSOURI; AND IF SUCH INTERSTATE CARRIER ACCEPTS WITHIN MISSOURI
PROPERTY DESTINED TO A POINT BEYOND THE LIMITS OF THE STATE OF MISSOURI
SUCH PROPERTY SHALL NOT BE TERMINATED WITHIN THE STATE OF MISSOURI." 

IN DECEMBER, 1936, AFTER HEARING, THE COMMISSION REVOKED APPELLANT'S
PERMIT, HOLDING THIS RULE TO HAVE BEEN VIOLATED.  ITS DECISION WAS
BASED UPON A FINDING THAT APPELLANT HAD UNLAWFULLY ENGAGED IN
INTRASTATE COMMERCE UNDER THE PRETENSE OF TRANSACTING INTERSTATE
BUSINESS; THAT AS A SUBTERFUGE HE HAD HAULED FREIGHT ORIGINATING IN ST.
LOUIS, MISSOURI, AND DESTINED TO KANSAS CITY, MISSOURI, AND VICE VERSA,
THROUGH HIS TERMINAL IN KANSAS CITY, KANSAS, WHICH WAS LOCATED LESS
THAN ONE-HALF MILE FROM THE MISSOURI STATE LINE.  THE COMMISSION STATED
THAT THE TESTIMONY SHOWED AN INDUSTRIOUS SOLICITATION BY APPELLANT FOR
THE TRANSPORTATION OF FREIGHT BETWEEN ST. LOUIS, MISSOURI, AND KANSAS
CITY, MISSOURI, ON THE BASIS OF HIS QUOTED INTERSTATE RATE BETWEEN SUCH
CITIES AS SET FORTH IN HIS TARIFF FILED WITH THE INTERSTATE COMMERCE
COMMISSION, WHICH RATE WAS MUCH LOWER THAN THE ESTABLISHED RATE FOR
INTRASTATE CARRIERS OPERATING BETWEEN THESE CITIES, AND THAT BY SUCH
MEANS A LARGE VOLUME OF BUSINESS HAD BEEN DEVELOPED.  IT APPEARED THAT
HE WAS CARRYING FREIGHT AT THE INTERSTATE FIRST-CLASS RATE OF SIXTY
CENTS PER CWT. BETWEEN ST. LOUIS, MISSOURI, AND KANSAS CITY, MISSOURI,
THROUGH HIS TERMINAL AT KANSAS CITY, KANSAS, WHILE THE SIMILAR
INTRASTATE FREIGHT RATE ESTABLISHED BY THE PUBLIC SERVICE COMMISSION
BETWEEN THE TWO CITIES IN MISSOURI WAS NINETY-TWO CENTS PER CWT. 

ON THE CHALLENGE IN THIS SUIT OF THE VALIDITY OF THE COMMISSION'S
ORDER, THE DISTRICT COURT HEARD THE EVIDENCE OF THE PARTIES AND FOUND
THAT THE CARRIAGE OF PROPERTY FROM ST. LOUIS, MISSOURI, TO KANSAS CITY,
KANSAS, AND THENCE BACK INTO KANSAS CITY, MISSOURI, FOR DELIVERY, WAS
NOT "THE NORMAL, REGULAR OR USUAL ROUTE" FOR SHIPPING MERCHANDISE
BETWEEN THE TWO CITIES IN MISSOURI; THAT THE ROUTE USED BY APPELLANT TO
HIS TERMINAL AT KANSAS CITY, KANSAS, WAS THROUGH KANSAS CITY, MISSOURI,
AND THAT THE SAME TRAFFIC-WAYS WERE USED IN MAKING DELIVERIES OF
MERCHANDISE AFTER IT HAD BEEN HAULED IN THE FIRST INSTANCE TO THE
TERMINAL; THAT AFTER REACHING THE TERMINAL IN KANSAS CITY, KANSAS,
APPELLANT IN MANY INSTANCES DID NOT UNLOAD THE MERCHANDISE, THAT MUCH
OF SUCH SHIPMENTS WAS IN CARLOAD LOTS, AND THAT THE METHOD EMPLOYED WAS
TO HAUL THE MERCHANDISE TO HIS TERMINAL IN KANSAS CITY, KANSAS, "WHERE
A NEW DRIVER, EITHER WITH THE SAME TRACTOR AND TRAILER, OR WITH ANOTHER
TRACTOR AND THE SAME TRAILER, WOULD RETURN THE MERCHANDISE TO KANSAS
CITY, MISSOURI"; THAT IN SOME INSTANCES MERCHANDISE WAS ACTUALLY
UNLOADED AT THE DEPOT IN KANSAS CITY, KANSAS, AND THEN DISTRIBUTED TO
THE CONSIGNEES IN KANSAS CITY, MISSOURI, BUT THAT THIS WAS "A
NEGLIGIBLE PERCENTAGE OF THE SHIPMENT BETWEEN MISSOURI POINTS"; AND
THAT THE METHOD OF OPERATION WHICH APPELLANT EMPLOYED WAS DESIGNED TO
AFFORD SHIPPERS THE BENEFIT OF A LOWER RATE AND WAS NOT IN GOOD FAITH. 

FIRST.  BY SEC. 5268(A) OF THE MISSOURI BUS AND TRUCK ACT (LAWS OF
1931, PP. 307, 308), THE STATE DECLARED IT TO BE UNLAWFUL FOR ANY
COMMON CARRIER BY MOTOR TO FURNISH SERVICE WITHIN THE STATE WITHOUT
FIRST HAVING OBTAINED FROM THE COMMISSION A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY.  BY SEC. 5268(B) IT WAS DECLARED UNLAWFUL
FOR ANY MOTOR CARRIER (WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE) TO
USE ANY OF THE PUBLIC HIGHWAYS OF THE STATE IN INTERSTATE COMMERCE
WITHOUT FIRST HAVING OBTAINED A PERMIT FROM THE COMMISSION.  IT WAS
PROVIDED THAT IN DETERMINING WHETHER SUCH A PERMIT SHOULD BE ISSUED,
THE COMMISSION SHOULD GIVE CONSIDERATION "TO THE KIND AND CHARACTER OF
VEHICLES PERMITTED OVER SAID HIGHWAY" AND SHOULD REQUIRE THE FILING "OF
A LIABILITY INSURANCE POLICY OR BOND" IN SUCH SUM AND UPON SUCH
CONDITIONS AS THE COMMISSION MIGHT DEEM NECESSARY TO PROTECT ADEQUATELY
THE INTEREST OF THE PUBLIC IN THE USE OF THE HIGHWAY.  THE STATUTE ALSO
AUTHORIZED THE PUBLIC SERVICE COMMISSION TO PRESCRIBE REGULATIONS
GOVERNING MOTOR CARRIERS. 

APPELLANT'S COMPLAINT DID NOT ATTACK THESE STATUTES; ON THE CONTRARY
HE ASSERTED THAT HE HAD FULLY COMPLIED WITH THEIR PROVISIONS.  HIS
COMPLAINT WAS OF THE ORDER OF THE COMMISSION REVOKING HIS PERMIT.  WE
CONFINE OURSELVES TO THE QUESTION THUS PRESENTED. 

SECOND. WHEN THE COMMISSION REVOKED THE PERMIT, THE INTERSTATE
COMMERCE COMMISSION HAD NOT ACTED UPON APPELLANT'S APPLICATION UNDER
THE FEDERAL MOTOR CARRIER ACT AND MEANWHILE THE AUTHORITY OF THE STATE
BODY TO TAKE APPROPRIATE ACTION UNDER THE STATE LAW TO ENFORCE
REASONABLE REGULATIONS OF TRAFFIC UPON THE STATE HIGHWAYS HAD NOT BEEN
SUPERSEDED.  WELCH CO. V. NEW HAMPSHIRE, ANTE, P. 79; COMPARE MCDONALD
V. THOMPSON, 305 U.S. 263. 

THIRD.  APPELLANT DID NOT SEEK FROM THE STATE COMMISSION A
CERTIFICATE ENTITLING HIM TO DO AN INTRASTATE BUSINESS.  UNDER THE
COMMISSION'S RULE, HE HAD HIS CHOICE EITHER TO REFRAIN FROM CARRYING
PROPERTY BETWEEN POINTS IN MISSOURI OR TO SECURE A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY AS AN INTRASTATE CARRIER.  THE
VALIDITY OF THE REQUIREMENT OF SUCH A CERTIFICATE TO PROMOTE THE PROPER
AND SAFE USE OF THE STATE HIGHWAYS IS NOT OPEN TO QUESTION.  HENDRICK
V. MARYLAND, 235 U.S. 610, 622; MORRIS V. DUBY, 274 U.S. 135, 143;
CLARK V. POOR, 274 U.S. 554, 556, 557; SOUTH CAROLINA HIGHWAY DEPT. V.
BARNWELL BROTHERS, 303 U.S. 177, 189; COMPARE BUCK V. KUYKENDALL, 267
U.S. 307, 315; INTERSTATE BUSSES CORP. V. HOLYOKE RY. CO., 273 U.S. 45,
51; SPROUT V. SOUTH BEND, 277 U.S. 163, 169. 

RULE 44 WAS PLAINLY DESIGNED TO PROVIDE A SAFEGUARD AGAINST THE USE
OF AN INTERSTATE PERMIT TO CIRCUMVENT THE REQUIREMENT OF A CERTIFICATE
FOR INTRASTATE TRAFFIC.  THE RULE SIMPLY SOUGHT TO HOLD TO HIS CHOICE
THE ONE WHO HAD SOUGHT AND OBTAINED A PERMIT EXCLUSIVELY FOR INTERSTATE
TRANSPORTATION.  APPELLANT WAS ENTIRELY FREE TO CONDUCT THAT
TRANSPORTATION IF HE DID NOT ENGAGE IN THE INTRASTATE BUSINESS FOR
WHICH HE HAD DELIBERATELY REFRAINED FROM QUALIFYING HIMSELF.  WE CANNOT
SEE THAT THE RULE ON ITS FACE IMPOSED ANY IMPROPER BURDEN UPON
INTERSTATE COMMERCE AND THE QUESTION IS WHETHER IT DID SO THROUGH THE
APPLICATION THAT THE COMMISSION HAS MADE OF IT. 

APPELLANT INSISTS THAT THE HAULING FROM ST. LOUIS OVER THE STATE LINE
TO KANSAS CITY, KANSAS, OF MERCHANDISE CONSIGNED TO PERSONS IN KANSAS
CITY, MISSOURI, AND HAULING IT BACK AGAIN TO ITS INTENDED DESTINATION
IN KANSAS CITY, MISSOURI, WAS ACTUALLY INTERSTATE TRANSPORTATION. 
HANLEY V. KANSAS CITY SOUTHERN RY. CO., 187 U.S. 617; WESTERN UNION
TELEGRAPH CO. V. SPEIGHT, 254 U.S. 17; MISSOURI PACIFIC R. CO. V.
STROUD, 267 U.S. 404.  THAT FACT, HOWEVER, DOES NOT REQUIRE THE
CONCLUSION THAT THE STATE'S ACTION FOR THE PROTECTION OF ITS INTRASTATE
COMMERCE WAS INVALID.  SEE LONE STAR GAS CO. V. TEXAS, 304 U.S. 224,
238.  WE MAY ASSUME THAT CONGRESS COULD REGULATE INTERSTATE
TRANSPORTATION OF THE SORT HERE IN QUESTION, WHATEVER THE MOTIVE OF
THOSE ENGAGING IN IT.  BUT IN THE ABSENCE OF THE EXERCISE OF FEDERAL
AUTHORITY, AND IN THE LIGHT OF LOCAL EXIGENCIES, THE STATE IS FREE TO
ACT IN ORDER TO PROTECT ITS LEGITIMATE INTERESTS EVEN THOUGH INTERSTATE
COMMERCE IS DIRECTLY AFFECTED.  COOLEY V. BOARD OF WARDENS, 12 HOW. 
299, 319; MORGAN'S S.S. CO. V. LOUISIANA, 118 U.S. 455; SMITH V.
ALABAMA, 124 U.S. 465; KELLY V. WASHINGTON, 302 U.S. 1, 9, 10.  IF
APPELLANT'S HAULING OF THE MERCHANDISE IN QUESTION ACROSS THE STATE
LINE WAS NOT IN GOOD FAITH BUT WAS A MERE SUBTERFUGE TO EVADE THE
STATE'S REQUIREMENT AS TO INTRASTATE COMMERCE, THERE IS NO GROUND FOR
SAYING THAT THE PROHIBITION OF THE USE OF THE INTERSTATE PERMIT TO
COVER SUCH TRANSACTIONS, AND THE APPLICATION OF THE COMMISSION'S RULE
PROHIBITING THEM IN THE ABSENCE OF AN INTRASTATE CERTIFICATE, WAS AN
UNWARRANTABLE INTRUSION INTO THE FEDERAL FIELD OR THE SUBJECTION OF
INTERSTATE COMMERCE TO ANY UNLAWFUL RESTRAINT.  AND IF THE PROHIBITION
OF SUCH TRANSACTIONS WAS VALID, THE COMMISSION WAS UNDOUBTEDLY ENTITLED
TO ENFORCE IT BY REVOKING APPELLANT'S PERMIT FOR BREACH OF THE
CONDITION UPON WHICH IT WAS ISSUED AND ACCEPTED BY APPELLANT. 

FOURTH.  THE ULTIMATE QUESTION IS THUS ONE OF FACT, WHETHER THE
TRANSACTIONS OF APPELLANT WERE OF THE CHARACTER DESCRIBED BY THE
COMMISSION AND IN THE FINDINGS OF THE DISTRICT COURT. 

THE TRANSCRIPT OF THE RECORD BEFORE THE COMMISSION WAS INTRODUCED
BEFORE THE COURT, BUT NEITHER THAT EVIDENCE NOR THE ADDITIONAL EVIDENCE
TAKEN BY THE COURT IS PRESENTED IN EXTENSO BY THE RECORD HERE.  THE
PARTIES PROPERLY FILED, IN CONNECTION WITH THIS APPEAL, CONDENSED
STATEMENTS OF THE EVIDENCE UPON WHICH THEY RESPECTIVELY RELIED.  AN
EXAMINATION OF THESE STATEMENTS DISCLOSES NO REASON FOR DISTURBING THE
COURT'S FINDINGS. 

APPELLANT STRESSES THE FACT THAT HE HAD SELECTED HIS TERMINAL IN
KANSAS CITY, KANSAS, AT THE BEGINNING OF HIS OPERATIONS AS A MOTOR
CARRIER, ABOUT 1932, AND THAT IT WAS A CONVENIENT AND PROPER LOCATION. 
BUT THAT FACT DOES NOT ALTER THE NATURE OF THE TRANSACTIONS UNDER
REVIEW.  THERE WAS A VARIANCE IN THE TESTIMONY AS TO THE EXTENT OF THE
APPELLANT'S BUSINESS WHICH WAS CONDUCTED IN VIOLATION OF HIS PERMIT,
BUT THERE WAS ADEQUATE BASIS FOR THE COURT'S FINDING THAT IT WAS A
CONSIDERABLE PORTION OF HIS OPERATIONS AND JUSTIFIED THE ACTION OF THE
COMMISSION. 

THE DECREE OF THE DISTRICT COURT SO FAR AS IT DENIES AN INJUNCTION IS
AFFIRMED. 
..END :





U.S. V. BERTELSEN & PETERSEN CO., 306 U.S. 276 


NO. 416.  ARGUED FEBRUARY 3, 1939.  - DECIDED FEBRUARY 27, 1939.  - 98
F.2D 132, 97 F.2D 488, AFFIRMED. 


1.  A TAXPAYER HAVING OVERPAID INTERNAL REVENUE TAXES FOR 1917, THE
COMMISSIONER ORDERED A REFUND OF PART OF THE OVERPAYMENT AND CREDITED
THE BALANCE TO A DEFICIENCY IN 1918 TAXES, ALTHOUGH ASSESSMENT OF THE
LATTER WAS THEN BARRED BY LIMITATIONS.  THE TAXPAYER SUED THE UNITED
STATES TO RECOVER JUDGMENT IN THE AMOUNT SO CREDITED.  THE COLLECTOR
WHO HAD WRONGFULLY COLLECTED THE EXCESS 1917 TAXES WAS DEAD OR OUT OF
OFFICE AT THE TIME THIS PROCEEDING WAS BEGUN.  HELD: 

(1)  THE CIRCUIT COURT OF APPEALS CORRECTLY RULED THAT TIMELY AND
PROPER CLAIM FOR THE OVERPAYMENT FOR 1917 HAD BEEN MADE AS REQUIRED BY
R.S. 3226, AS AMENDED AND REENACTED BY REVENUE ACT OF 1926, AND THAT
THE SUIT WAS BROUGHT "TO RECOVER THAT PART OF A CLAIM FOR REFUND OF THE
1917 OVER-PAYMENT WHICH HAD BEEN DISALLOWED BY IMPROPERLY APPLYING IT
TO AN INVALID ASSESSMENT OF A DEFICIENCY TAX FOR 1918."  P. 279. 

(2)  THE CERTIFICATE OF OVERASSESSMENT ISSUED BY THE COMMISSIONER,
ORDERING REFUND OF PART OF A DISCLOSED OVERPAYMENT FOR 1917 AND
CREDITING THE BALANCE TO A DEFICIENCY FOR 1918, DID NOT CONSTITUTE AN
ACCOUNT STATED BETWEEN THE GOVERNMENT AND THE TAXPAYER, WHO DID NOT
ASSENT.  P. 280. 

(3)  THE SUIT WAS WITHIN THE JURISDICTION OF THE DISTRICT COURT UNDER
JUD.  CODE SEC. 24(20), AS AMENDED.  DISTINGUISHING LOWE BROS. CO. V.
U.S., 304 U.S. 302.  P. 280. 

2.  A SUIT BROUGHT BY A TAXPAYER TO RECOVER ADMITTED OVERPAYMENTS OF
INTERNAL REVENUE TAXES FOR 1922 TO 1925, MADE TO A COLLECTOR WHO AT THE
BEGINNING OF THE SUIT WAS OUT OF OFFICE, WHICH OVERPAYMENTS THE
COMMISSIONER UNDERTOOK TO CREDIT AGAINST ALLEGED DEFICIENCIES OF TAXES
FOR 1926 TO 1928, HELD NOT A SUIT TO RECOVER PAYMENTS ON ACCOUNT OF
TAXES FOR 1926 TO 1928, BUT ONE FOR THE RECOVERY OF OVERPAYMENTS FOR
1922 TO 1925, IN RESPECT OF WHICH TIMELY CLAIMS FOR REFUNDS HAD BEEN
FILED; AND THAT THE SUIT WAS WITHIN THE JURISDICTION OF THE DISTRICT
COURT UNDER JUD.  CODE SEC. 24(20) AS AMENDED.  P. 281. 

UNITED STATES V. BERTELSEN & PETERSEN ENGINEERING CO.* 

*TOGETHER WITH NO. 437, UNITED STATES V. JAFFRAY, ET AL., TRUSTEES. 
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 
ARGUED FEBRUARY 2, 3, 1939.  - DECIDED FEBRUARY 27, 1939. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 305 U.S. 590, TO REVIEW AFFIRMANCES OF JUDGMENTS FOR THE
TAXPAYERS IN TWO SUITS BROUGHT IN THE DISTRICT COURTS TO RECOVER
OVERPAYMENTS OF FEDERAL TAXES.  FOR EARLIER OPINIONS IN NO. 416, SEE 60
F.2D 745; 95 F.2D 867; 49 F.2D 395; 14 F.SUPP.  868. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

IN EACH OF THESE CAUSES COUNSEL FOR THE UNITED STATES MAINTAIN THE
DISTRICT COURT WAS WITHOUT JURISDICTION TO DETERMINE THE ISSUES.  THE
CIRCUIT COURTS OF APPEAL RULED OTHERWISE AND APPROVED JUDGMENTS FOR
RESPONDENTS.  THE COLLECTORS WHO RECEIVED THE EXCESS TAXES IN QUESTION
WERE EITHER DEAD OR OUT OF OFFICE WHEN THE PROCEEDINGS TO RECOVER WERE
COMMENCED.  THE QUESTION OF JURISDICTION ONLY IS OPEN FOR OUR
CONSIDERATION. 

AND DETERMINE CLAIMS AGAINST THE UNITED STATES ARISING OUT OF CONTRACT,
EXPRESS OR IMPLIED.  PRIOR TO 1921 SEC. 24(20) JUDICIAL CODE GAVE
DISTRICT COURTS CONCURRENT JURISDICTION WHEN THE CLAIM DID NOT EXCEED
TEN THOUSAND DOLLARS.  FN2 

THE ACTS OF 1921, 1924, 1925 AND 1926  FN3  ENLARGED THE JURISDICTION
OF DISTRICT COURTS BY ADDING THE FOLLOWING TO SEC. 24(20) JUDICIAL
CODE: 

"CONCURRENT WITH THE COURT OF CLAIMS, OF ANY SUIT OR PROCEEDING,
COMMENCED AFTER THE PASSAGE OF THE REVENUE ACT OF 1921, FOR THE
RECOVERY OF ANY INTERNAL-REVENUE TAX ALLEGED TO HAVE BEEN ERRONEOUSLY
OR ILLEGALLY ASSESSED OR COLLECTED, OR OF ANY PENALTY CLAIMED TO HAVE
BEEN COLLECTED WITHOUT AUTHORITY OR ANY SUM ALLEGED TO HAVE BEEN
EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED, UNDER THE INTERNAL
REVENUE LAWS, EVEN IF THE CLAIM EXCEEDS $10,000, IF THE COLLECTOR OF
INTERNAL REVENUE BY WHOM SUCH TAX, PENALTY, OR SUM WAS COLLECTED IS
DEAD OR IS NOT IN OFFICE AS COLLECTOR OF INTERNAL REVENUE AT THE TIME
SUCH SUIT OR PROCEEDING IS COMMENCED." 

1926, C. 27, SEC. 1113(A), 44 STAT. 9, 116 PROVIDES - 

"NO SUIT OR PROCEEDING SHALL BE MAINTAINED IN ANY COURT FOR THE
RECOVERY OF ANY INTERNAL-REVENUE TAX ALLEGED TO HAVE BEEN ERRONEOUSLY
OR ILLEGALLY ASSESSED OR COLLECTED,  ...  UNTIL A CLAIM FOR REFUND OR
CREDIT HAS BEEN DULY FILED WITH THE COMMISSIONER OF INTERNAL REVENUE,
...  NO SUCH SUIT OR PROCEEDING SHALL BE BEGUN  ...  AFTER THE
EXPIRATION OF FIVE YEARS FROM THE DATE OF THE PAYMENT OF SUCH TAX,
PENALTY, OR SUM, UNLESS SUCH SUIT OR PROCEEDING IS BEGUN WITHIN TWO
YEARS AFTER THE DISALLOWANCE OF THE PART OF SUCH CLAIM TO WHICH SUCH
SUIT OR PROCEEDING RELATES.  THE COMMISSIONER SHALL WITHIN 90 DAYS
AFTER ANY SUCH DISALLOWANCE NOTIFY THE TAXPAYER THEREOF BY MAIL." 

1103(A), 47 STAT. 169, 286, SO AS TO READ AS SHOWN IN THE MARGIN.  FN4

                   NO. 416. 

THE COMMISSIONER OF INTERNAL REVENUE UNDERTOOK TO DEDUCT MORE THAN
TEN THOUSAND DOLLARS FROM AN ADMITTED OVERPAYMENT BY RESPONDENT UPON
1917 TAXES AND TO APPLY THIS TO A DECLARED DEFICIENCY FOR 1918 TAXES
THEN BARRED BY THE STATUTE OF LIMITATIONS.  BY THIS SUIT RESPONDENT
SEEKS A JUDGMENT FOR THE AMOUNT SO DEDUCTED. 

THE CIRCUIT COURT OF APPEALS PROPERLY HELD "THIS ACTION WAS BROUGHT
TO RECOVER THAT PART OF A CLAIM FOR REFUND OF THE 1917 OVERPAYMENT
WHICH HAD BEEN DISALLOWED BY IMPROPERLY APPLYING IT TO AN INVALID
ASSESSMENT OF A DEFICIENCY TAX FOR 1918."  ALSO, RIGHTLY WE THINK, THAT
TIMELY AND PROPER CLAIM FOR THE OVERPAYMENT FOR 1917 HAD BEEN MADE AS
REQUIRED BY SEC. 3226 REVISED STATUTES AS REENACTED 1926. 

AND WE ACCEPT THE CONCLUSIONS STATED IN THE FOLLOWING EXCERPT FROM
ITS OPINION - 

"THE CERTIFICATE OF OVERASSESSMENT ISSUED BY THE COMMISSIONER ON JULY
27, 1926, DISCLOSED AN OVERPAYMENT BY THE TAXPAYER OF THE 1917 TAX OF
$91,570.34, OF WHICH THE COMMISSIONER ORDERED REFUNDED TO THE TAXPAYER
APPROXIMATELY $55,000, AND ON JULY 27, 1926, CREDITED $34,555.68 TO A
DEFICIENCY TAX FOR 1918.  IT CANNOT BE SAID THAT THE CERTIFICATE OF
OVERASSESSMENT CONSTITUTED AN ACCOUNT STATED BETWEEN THE GOVERNMENT AND
THE TAXPAYER, SINCE THE TAXPAYER REFUSED TO ASSENT TO THE APPLICATION
OF ANY PART OF THE OVERPAYMENT TO A DEFICIENCY TAX FOR 1918.  TO
CONSTITUTE AN ACCOUNT STATED THERE MUST BE AN AGREEMENT AS TO LIABILITY
AND THE AMOUNT DUE.  GOODRICH, ADMR.  V. COFFIN, 83 ME. 324.  THAT THE
TAXPAYER'S PETITION WAS NOT BASED ON AN ALLOWANCE OF AN OVERPAYMENT FOR
1917, AND AN IMPLIED PROMISE BY THE GOVERNMENT TO REFUND, IS EQUALLY
CLEAR, SINCE THE TAXPAYER REFUSED TO ASSENT TO THE APPLICATION OF
$34,555.68 TO A DEFICIENCY TAX OF 1918.  THE APPLICATION BY THE
COMMISSIONER ON JULY 27, 1926, OF A PART OF THE OVERPAYMENT FOR 1917 TO
A DEFICIENCY TAX FOR 1918, AGAINST THE PROTEST OF THE TAXPAYER,
CONSTITUTED A DISALLOWANCE OF SO MUCH OF THE PETITIONER'S ORIGINAL
CLAIM FOR REFUND.  ...  THE SUIT WAS ONE WHICH COULD HAVE BEEN BROUGHT
AGAINST A COLLECTOR, IF LIVING, BUT WHO IS NOW DEAD OR OUT OF OFFICE." 

LOWE BROS. CO. V. UNITED STATES, 304 U.S. 302, 303, IS NOT
CONTROLLING.  THERE THE SUIT WAS BEGUN IN THE DISTRICT COURT TO RECOVER
AN OVERPAYMENT OF 1917 TAXES THE ALLEGED RESULT OF A CREDIT MADE BY THE
COMMISSIONER FROM AN ADMITTED OVERPAYMENT FOR 1918.  FOR THIS NO ACTION
COULD HAVE BEEN MAINTAINED AGAINST THE COLLECTOR - HE DID NOT MAKE OR
AUTHORIZE THE CREDIT.  THEREFORE, THE AMENDMENT TO SEC. 24(20) JUDICIAL
CODE (28 U.S.C. SEC. 41(20)) ENLARGING THE JURISDICTION OF THE DISTRICT
COURT HAD NO APPLICATION.  HERE THE COLLECTOR MIGHT HAVE BEEN SUED
SINCE HE WRONGLY RECEIVED PAYMENT ON ACCOUNT OF 1917 TAXES.  THE
PRESENT CAUSE FALLS WITHIN THE VERY WORDS OF THE AMENDMENT. 

                               NO. 437. 

RESPONDENTS OVERPAID INTERNAL REVENUE TAXES IN SUMS EXCEEDING TEN
THOUSAND DOLLARS FOR 1922, 1923 AND 1924; AND FOR 1925, $7,800.  THE
COMMISSIONER ISSUED CERTIFICATES TO THAT EFFECT AUGUST 16, 1933.  HE
REFUSED TO REPAY THESE SUMS BUT UNDERTOOK TO CREDIT THEM TO
DEFICIENCIES WHICH HE ASSESSED AGAINST RESPONDENTS FOR 1926, 1927,
1928. 

THEREUPON THIS SUIT WAS BROUGHT TO RECOVER THE OVERPAYMENTS FOR 1922
TO 1925 UNDER SEC. 24(20) JUDICIAL CODE AS AMENDED (U.S.C. TITLE 28,
SEC. 41(20)) WHICH GIVES DISTRICT COURTS JURISDICTION IN RESPECT OF
TAXES ERRONEOUSLY RECEIVED BY A COLLECTOR OUT OF OFFICE.  RESPONDENTS
MAINTAIN THAT, IN FACT, THERE WERE NO DEFICIENCIES FOR 1926, 1927,
1928, AND THAT BY ATTEMPTING TO CREDIT OVERPAYMENTS FOR 1922 TO 1925
AGAINST NON-EXISTING DEFICIENCIES THE COMMISSIONER IN EFFECT DENIED
THEIR CLAIMS FOR REFUND. 

ON THE OTHER HAND PETITIONER INSISTS THAT THE COMMISSIONER'S ACTION
IN ALLOWING THE OVERPAYMENTS AND CREDITING THEM AGAINST ALLEGED
DEFICIENCIES AMOUNTED TO PAYMENTS ON ACCOUNT OF TAXES ASSESSED FOR 1926
TO 1928.  AND, AS IT WAS THE COMMISSIONER AND NOT THE COLLECTOR WHO
CAUSED SUCH CREDIT OF OVERPAYMENTS TO DEFICIENCIES, THE DISTRICT COURT
WAS WITHOUT JURISDICTION. 

THE CIRCUIT COURT OF APPEALS HELD THE SUIT WAS ONE TO RECOVER
OVERPAYMENTS ADMITTEDLY MADE TO THE COLLECTOR AND IN RESPECT OF WHICH
TIMELY CLAIMS FOR REFUND HAD BEEN FILED. 

IT SAID - 

"THE CREDITING OF THE OVERPAYMENTS, BY THE COMMISSIONER, AGAINST
TAXES DUE FROM THE TAXPAYER FOR OTHER YEARS WAS A MATTER OF DEFENSE, A
JUSTIFICATION FOR THE FAILURE TO REFUND, AND NOT A MATTER WHICH
DESTROYED THE TAXPAYER'S CAUSE OF ACTION OR OUSTED THE COURT OF
JURISDICTION." 

THIS CONCLUSION WE THINK IS CORRECT.  OTHER POINTS SUGGESTED, SO FAR
AS PRESENTLY IMPORTANT, ARE SUFFICIENTLY ANSWERED BY WHAT HAS BEEN SAID
IN NO. 416. 

BOTH OF THE CHALLENGED JUDGMENTS MUST BE AFFIRMED. 

FN1  TUCKER ACT MARCH 3, 1887, C. 359, 24 STAT. 505; ACT JUNE 27,
1898, C. 503, 30 STAT. 494; JULY 1, 1898, C. 546, 30 STAT. 597, 649;
FEBRUARY 26, 1900, C. 25, 31 STAT. 33; MARCH 3, 1911, 36 STAT. 1087,
1136; U.S.C. TITLE 28, SEC. 250(1). 

FN2  "THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION AS
FOLLOWS:  ... 

"TWENTIETH.  CONCURRENT WITH THE COURT OF CLAIMS, OF ALL CLAIMS NOT
EXCEEDING TEN THOUSAND DOLLARS FOUNDED UPON THE CONSTITUTION OF THE
UNITED STATES OR ANY LAW OF CONGRESS, OR UPON ANY REGULATION OF AN
EXECUTIVE DEPARTMENT, OR UPON ANY CONTRACT, EXPRESS OR IMPLIED, WITH
THE GOVERNMENT OF THE UNITED STATES,  ..."  ACT MARCH 3, 1911, 36 STAT.
1087, 1091, 1093; U.S.C. TITLE 28, SEC. 41(20). 

FN3  SEE ACT NOVEMBER 23, 1921, C. 136, 42 STAT. 227, 311; JUNE 2,
1924, C. 234, 43 STAT. 253, 348; FEBRUARY 24, 1925, C. 309, 43 STAT.
972; FEBRUARY 26, 1926, C. 27, 44 STAT. 9, 121.  U.S.C. TITLE 28, SEC.
41(20) 

FN4  "SECTION 3226 OF THE REVISED STATUTES, AS AMENDED, IS AMENDED TO
READ AS FOLLOWS: 

"SEC. 3226.  NO SUIT OR PROCEEDING SHALL BE MAINTAINED IN ANY COURT
FOR THE RECOVERY OF ANY INTERNAL-REVENUE TAX ALLEGED TO HAVE BEEN
ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED,  ... UNTIL A CLAIM FOR
REFUND OR CREDIT HAS BEEN DULY FILED WITH THE COMMISSIONER OF INTERNAL
REVENUE, ...  NO SUCH SUIT OR PROCEEDING SHALL BE BEGUN  ...  AFTER THE
EXPIRATION OF TWO YEARS FROM THE DATE OF MAILING BY REGISTERED MAIL BY
THE COMMISSIONER TO THE TAXPAYER OF A NOTICE OF THE DISALLOWANCE OF THE
PART OF THE CLAIM TO WHICH SUCH SUIT OR PROCEEDING RELATES." 

U.S.C. TITLE 26, SECS. 1672-1673. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
EITHER OF THESE CAUSES. 
..END :




















TITUS V. WALLICK, 306 U.S. 282 


NO. 188.  ARGUED JANUARY 30, 1939.  - DECIDED FEBRUARY 27, 1939.  - 133
OHIO ST. 612 - 15 N.E.2D 140, REVERSED. 


1.  THE RIGHT TO ENFORCE IN A STATE COURT A JUDGMENT RECOVERED IN A
COURT OF ANOTHER STATE IS ONE ARISING UNDER ARTICLE IV, SEC. 1 OF THE
CONSTITUTION AND UNDER A STATUTE OF THE UNITED STATES, R.S. SEC. 905;
28 U.S.C. SEC. 687.  SINCE THE EXISTENCE OF THIS RIGHT DEPENDS UPON THE
LEGAL EFFECT OF THE PROCEEDINGS, AND THE VALIDITY OF THE JUDGMENT, IN
THE STATE IN WHICH IT WAS RENDERED, THE RULINGS UPON THOSE MATTERS BY
THE COURT IN WHICH THE JUDGMENT IS SUED UPON ARE REVIEWABLE BY THIS
COURT.  P. 287. 

2.  BY THE LAW OF NEW YORK, AN ASSIGNMENT OF A CHOSE IN ACTION FOR
THE PURPOSE OF SUIT ONLY AND OBLIGATING THE ASSIGNEE TO ACCOUNT FOR THE
PROCEEDS TO ANOTHER ENABLES THE ASSIGNEE TO SUE IN HIS OWN NAME.  P.
288. 

3.  THIS EFFECT OF AN ASSIGNMENT IN NEW YORK IS NOT ALTERED BY ADDING
TO THE ASSIGNMENT A POWER OF ATTORNEY TO BRING THE SUIT.  P. 289. 

4.  AFTER RECOVERING A JUDGMENT AS LAWFUL ASSIGNEE OF THE ORIGINAL
CAUSE OF ACTION THE JUDGMENT CREDITOR RESISTED A CLAIM UPON CONTRACT
FOR A SHARE OF THE JUDGMENT, MADE IN ANOTHER SUIT, BY REPRESENTING THAT
HIS INTEREST HAD BEEN ASSIGNED TO OTHERS BEFORE THE CONTRACT AND BY
CONCEALING THE FACT THAT THE CAUSE OF ACTION HAD BEEN REASSIGNED TO HIM
FOR PURPOSES OF SUIT BEFORE THE ACTION RESULTING IN THE JUDGMENT HAD
BEEN BEGUN.  HELD NOT MATTER OF DEFENSE IN A SUIT TO COLLECT THE
JUDGMENT IN ANOTHER STATE BECAUSE THESE CIRCUMSTANCES DID NOT IMPAIR
THE PREVIOUS ASSIGNMENT OF THE CAUSE OF ACTION OR DEPRIVE THE JUDGMENT
CREDITOR OF THE AUTHORITY TO MAINTAIN THE SUIT, ALREADY CONFERRED UPON
HIM BY THE REASSIGNMENT.  P. 290. 

5.  WHEN A STATE COURT REFUSES CREDIT TO THE JUDGMENT OF A SISTER
STATE BECAUSE OF ITS OPINION OF THE NATURE OF THE CAUSE OF ACTION OR
THE JUDGMENT IN WHICH IT IS MERGED, AN ASSERTED FEDERAL RIGHT IS DENIED
AND THE SUFFICIENCY OF THE GROUNDS OF DENIAL ARE FOR THIS COURT TO
DECIDE.  P. 291. 

6.  THE CONSTITUTION, ARTICLE IV, SEC. 1, REQUIRES THAT CREDIT BE
GIVEN A MONEY JUDGMENT RECOVERED BY THE JUDGMENT CREDITOR, AS ASSIGNEE
OF A CIVIL CAUSE OF ACTION, IN ANOTHER STATE, EVEN THOUGH THE FORUM
MIGHT HAVE DECLINED TO CONCEDE HIS RIGHT TO SUE AS REAL PARTY IN
INTEREST IF THE SUIT HAD BEEN BROUGHT THERE UPON THE ORIGINAL ASSIGNED
CLAIM.  P. 291. 

TITUS V. WALLICK. 

CERTIORARI TO THE SUPREME COURT OF OHIO. 

CERTIORARI, 305 U.S. 585, TO REVIEW A JUDGMENT OF THE COURT BELOW,
WHICH DISMISSED, AS INVOLVING NO DEBATABLE CONSTITUTIONAL QUESTION, AN
APPEAL FROM AN INTERMEDIATE APPELLATE COURT OF OHIO, WHICH HAD AFFIRMED
A JUDGMENT AGAINST THE PRESENT PETITIONER IN HIS SUIT ON A NEW YORK
JUDGMENT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE SUPREME COURT OF OHIO, BY
DENYING RECOVERY UPON A JUDGMENT PROCURED BY PETITIONER AGAINST
RESPONDENT IN THE COURTS OF NEW YORK, HAS FAILED TO ACCORD TO THE NEW
YORK JUDGMENT THE FULL FAITH AND CREDIT WHICH ARTICLE IV, SEC. 1 OF THE
CONSTITUTION COMMANDS. 

PETITIONER BROUGHT THE PRESENT SUIT AGAINST RESPONDENT IN THE OHIO
COURT OF COMMON PLEAS UPON A JUDGMENT RECOVERED BY PETITIONER AGAINST
RESPONDENT IN THE SUPREME COURT OF NEW YORK ON MAY 1, 1934.  TRANSCRIPT
OF THE NEW YORK JUDGMENT FOR $389,103, DULY AUTHENTICATED IN CONFORMITY
TO THE ACT OF CONGRESS, R.S. SEC. 905, 28 U.S.C. SEC. 687, WAS FILED
WITH THE PETITION IN THE OHIO COURT.  DEFENSES INTERPOSED BY
RESPONDENT, SO FAR AS NOW MATERIAL, WERE THAT PETITIONER WAS NOT THE
REAL PARTY IN INTEREST IN THE OHIO SUIT AND THAT THE JUDGMENT HAD BEEN
PROCURED IN NEW YORK BY FRAUD ON THE COURT AND ON RESPONDENT, IN THAT
PETITIONER WAS NOT THE REAL PARTY IN INTEREST ENTITLED TO ASSERT THE
CLAIM LITIGATED IN THAT SUIT AS REQUIRED BY SEC. 210 OF THE NEW YORK
CIVIL PRACTICE ACT, AND THAT PETITIONER, IN PROCURING THE JUDGMENT,
SUPPRESSED AND WITHHELD THAT FACT FROM RESPONDENT AND THE NEW YORK
COURTS. 

THE COURT OF COMMON PLEAS, AFTER A TRIAL WITHOUT A JURY, SUSTAINED
THESE DEFENSES AND GAVE JUDGMENT FOR RESPONDENT, WHICH THE OHIO COURT
OF APPEALS FOR FRANKLIN COUNTY AFFIRMED, WITH AN OPINION IN WHICH IT
RULED THAT THE JUDGMENT SUSTAINING THE DEFENSES DID NOT DENY THE NEW
YORK JUDGMENT THE FULL FAITH AND CREDIT REQUIRED BY THE CONSTITUTION. 
APPEAL TO THE SUPREME COURT OF OHIO ASSIGNING AS ERROR THE DENIAL OF
FULL FAITH AND CREDIT TO THE NEW YORK JUDGMENT WAS DISMISSED ON THE
GROUND THAT THE CASE INVOLVED "NO DEBATABLE CONSTITUTIONAL QUESTION." 
133 OHIO ST. 612; 15 N.E.2D 140.  WE GRANTED CERTIORARI, 305 U.S. 585,
THE CONSTITUTIONAL QUESTION PRESENTED BY THE PETITION BEING OF PUBLIC
IMPORTANCE AND THE FEDERAL RIGHT ASSERTED HAVING BEEN RULED UPON AND
DENIED BY THE HIGHEST COURT OF THE STATE.  MATTHEWS V. HUWE, 269 U.S.
262; TUMEY V. OHIO, 273 U.S. 510, 515. 

PETITIONER BROUGHT THE NEW YORK SUIT IN DECEMBER, 1925, ALLEGING THAT
HE WAS THE OWNER OF A QUARTER INTEREST IN TWO HUNDRED AND FIFTY SHARES
OF THE STOCK OF AN OHIO CORPORATION WHICH RESPONDENT HERE, THE
DEFENDANT THERE, HAD FRAUDULENTLY APPROPRIATED TO HIS OWN USE.  THE
RELIEF SOUGHT WAS THAT RESPONDENT BE DIRECTED TO DELIVER TO PETITIONER
CERTIFICATES OF STOCK REPRESENTING HIS INTEREST IN THE CORPORATION AND
TO ACCOUNT FOR THE DIVIDENDS AND EARNINGS ON THE STOCK RECEIVED BY
RESPONDENT.  RESPONDENT APPEARED PERSONALLY AND DEFENDED THE SUIT.  IT
WAS TWICE TRIED IN THE SUPREME COURT OF NEW YORK AND WAS FIVE TIMES
BEFORE THE APPELLATE DIVISION OF THE SUPREME COURT, 222 APP. DIV. 17;
225 N.Y.S. 263; 227 APP. DIV. 789; 237 N.Y.S. 908; 235 APP. DIV. 662;
225 N.Y.S. 905; 240 APP. DIV. 818; 266 N.Y.S. 969; 244 APP. DIV. 789;
280 N.Y.S. 969, AND ONCE BEFORE THE NEW YORK COURT OF APPEALS, 260 N.Y.
519; 184 N.E. 75, WHICH AFFIRMED A JUDGMENT ESTABLISHING THE LIABILITY
OF RESPONDENT.  AN ACCOUNTING, AT THE END OF NINE YEARS OF LITIGATION,
RESULTED IN THE FINAL JUDGMENT SUED UPON, WHICH WAS AFFIRMED BY THE
APPELLATE DIVISION.  244 APP. DIV. 789; 280 N.Y.S. 969. 

THE PRESENT RECORD DISCLOSES THAT AFTER ENTRY OF THIS JUDGMENT LONDON
WALLICK, A BROTHER OF RESPONDENT, BROUGHT SUIT IN THE SUPREME COURT OF
NEW YORK TO RECOVER FROM PETITIONER A SHARE OF THE JUDGMENT PURSUANT TO
A CONTRACT ALLEGED TO HAVE BEEN ENTERED INTO BE HIM WITH LONDON WALLICK
ON OR ABOUT NOVEMBER 23, 1925.  IN RESISTING A MOTION MADE IN THAT SUIT
FOR AN INJUNCTION RESTRAINING PETITIONER FROM DISPOSING OF THE JUDGMENT
OR ITS PROCEEDS, PETITIONER PREPARED AND FILED AN AFFIDAVIT RECITING
THAT ON OR BEFORE NOVEMBER 23, 1925, HE HAD INFORMED LONDON WALLICK
THAT HE HAD ALREADY ASSIGNED HIS INTEREST IN THE CLAIM AGAINST
RESPONDENT TO HIS WIFE AND TO WALTER TITUS, HIS BROTHER, AND ASSERTING
THAT "IT DOES NOT LIE WITHIN THE JURISDICTION OF THIS COURT TO NOW
ENJOIN WHAT HAS ALREADY BEEN ACCOMPLISHED." 

THE ASSIGNMENT BY PETITIONER AND A LATER REASSIGNMENT OF THE CLAIM TO
HIM WERE INTRODUCED IN EVIDENCE IN THE PRESENT SUIT.  THE ASSIGNMENT,
DATED MARCH 31, 1924, PURPORTED TO "SELL, ASSIGN, TRANSFER AND SET OVER
UNTO" WALTER TITUS "ANY AND ALL CLAIMS" WHICH PETITIONER THEN HAD
AGAINST RESPONDENT.  THE REASSIGNMENT, DESCRIBED BY ITS TERMS AS AN
"AGREEMENT," BEARS DETE DECEMBER 1, 1925, PRIOR TO THE SUIT BROUGHT BY
PETITIONER AGAINST RESPONDENT IN NEW YORK.  IT RECITES THAT THE EARLIER
ASSIGNMENT WAS MADE UPON AN ORAL AGREEMENT THAT WALTER TITUS WAS TO
"USE ANY FUNDS THAT MIGHT BE DERIVED" FROM THE CLAIM TO THE TWO HUNDRED
AND FIFTY SHARES OF STOCK TO PAY CERTAIN INDEBTEDNESS OF PETITIONER AND
THAT PETITIONER "WISHES TO INSTITUTE AN ACTION AGAINST" RESPONDENT "TO
RECOVER SAID STOCK."  IT STATES THAT WALTER TITUS "DOES HEREBY SELL,
ASSIGN, TRANSFER AND SET OVER" TO PETITIONER "ALL HIS RIGHT, TITLE AND
INTEREST" IN THE CLAIM AND APPOINTS PETITIONER HIS ATTOENEY TO COLLECT
THE CLAIM.  IT FURTHER RECITES AN AGREEMENT BETWEEN THE ASSIGNOR AND
PETITIONER THAT THE LATTER WILL TURN OVER THE PROCEEDS OF THE CLAIM TO
THE ASSIGNOR, WHO AGREES, AFTER PAYING THE EXPENSES OF COLLECTION, TO
PAY OVER ONE-HALF OF THE NET RECOVERY TO PETITIONER'S WIFE, TO
DISCHARGE CERTAIN INDEBTEDNESS OF PETITIONER, AND TO PAY THE BALANCE TO
HIM. 

THE OHIO COURT OF APPEALS DISAGREED WITH THE CONCLUSION OF THE TRIAL
COURT THAT PETITIONER'S AFFIDAVIT IN THE LONDON WALLICK SUIT
CONCLUSIVELY ESTABLISHED THAT PETITIONER HAD NO INTEREST IN THE CLAIM
PROSECUTED AGAINST RESPONDENT IN NEW YORK.  IT HELD THAT HIS INTEREST
WAS TO BE ASCERTAINED BY EXAMINATION OF THE REASSIGNMENT FROM WALTER
TITUS TO PETITIONER.  BUT INTERPRETING THAT DOCUMENT IN THE LIGHT OF
THE NEW YORK LAW IT CONCLUDED THAT THE REASSIGNMENT WAS NO MORE THAN A
POWER OF ATTORNEY AUTHORIZING PETITIONER TO COLLECT THE CLAIM IN BEHALF
OF WALTER TITUS AND DID NOT OPERATE AS AN ASSIGNMENT TO VEST ANY RIGHT
OR INTEREST IN PETITIONER UPON WHICH HE COULD MAINTAIN SUIT IN THE NEW
YORK COURTS.  UPON EXAMINATION OF PETITIONER'S AFFIDAVIT INDICATING, AS
THE COURT THOUGHT, THAT PETITIONER HAD CONSTRUED THE REASSIGNMENT
CORRECTLY AS NOT TRANSFERRING TO HIM ANY RIGHT OR INTEREST IN THE CLAIM
AGAINST RESPONDENT, IT ACCEPTED THE AFFIDAVIT AS EVIDENCE THAT
PETITIONER HAD FRAUDULENTLY PROSECUTED THE NEW YORK SUIT AGAINST
RESPONDENT WITH KNOWLEDGE THAT HE WAS NOT ENTITLED TO MAINTAIN IT.  THE
COURT ACCORDINGLY AFFIRMED THE JUDGMENT OF THE TRIAL COURT DENYING
RECOVERY, ON THE GROUND THAT THE NEW YORK JUDGMENT, IMPEACHABLE THERE
FOR THE FRAUD, WAS TO THE SAME EXTENT IMPEACHABLE IN OHIO. 

BY R.S. SEC. 905, 28 U.S.C. SEC. 687, ENACTED UNDER AUTHORITY OF THE
FULL FAITH AND CREDIT CLAUSE, ARTICLE IV, SEC. 1 OF THE CONSTITUTION,
THE DULY ATTESTED RECORDS OF THE JUDGMENTS OF A STATE ARE ENTITLED TO
"SUCH FAITH AND CREDIT  ...  IN EVERY COURT WITHIN THE UNITED STATES,
AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE STATE FROM WHICH THEY
ARE TAKEN."  THE JURISDICTION OF THE NEW YORK COURT OVER THE SUBJECT
MATTER AND THE PERSON OF RESPONDENT, ESTABLISHED PRIMA FACIE BY THE
PRESENT RECORD AND DULY AUTHENTICATED RECORD OF THE JUDGMENT, IS NOT
QUESTIONED.  BUT RESPONDENT ARGUES, AS THE STATE COURT HELD, THAT UNDER
THE CONSTITUTION AND ACT OF CONGRESS THE JUDGMENT IS ENTITLED TO NO
MORE CREDIT IN OHIO THAN IS ACCORDED TO IT IN NEW YORK AND THAT IN NEW
YORK THE JUDGMENT IS IMPEACHABLE FOR PETITIONER'S FRAUD IN PROSECUTING
THE SUIT, KNOWING THAT HE HAD NO INTEREST IN THE CAUSE OF ACTION
SUFFICIENT TO ENABLE HIM TO MAINTAIN IT. 

THE RIGHT ASSERTED BY PETITIONER TO HAVE THE NEW YORK JUDGMENT
ENFORCED IN THE COURTS OF OHIO IS ONE ARISING UNDER THE CONSTITUTION
AND A STATUTE OF THE UNITED STATES.  AND SINCE THE EXISTENCE OF THE
FEDERAL RIGHT TURNS UPON THE LEGAL EFFECT OF THE PROCEEDINGS IN NEW
YORK AND THE VALIDITY OF THE JUDGMENT THERE, THE RULINGS ON THOSE
POINTS BY THE OHIO COURT ARE REVIEWABLE HERE.  ADAM V. SAENGER, 303
U.S. 59, 64.  WHILE THEY INVOLVE QUESTIONS OF LOCAL LAW AND ARE OF A
CHARACTER SUCH THAT THIS COURT ORDINARILY REEXAMINES THEM WITH
DEFERENCE AFTER THEY HAVE BEEN PASSED UPON BY A STATE COURT, ITS
DETERMINATION CANNOT BE ACCEPTED HERE AS DECISIVE IF THE CONSTITUTIONAL
COMMAND IS TO BE OBSERVED, ESPECIALLY AS THE DECISION OF THE STATE
COURT RESTS NOT ON THE LAW OF ITS OWN STATE OR MATTERS PECULIARLY
WITHIN ITS COGNIZANCE, BUT UPON THE LAW OF ANOTHER STATE WHICH IS AS
READILY DETERMINABLE HERE AS IN THE COURTS OF OHIO. 

WE DO NOT STOP TO CONSIDER THE QUESTION MUCH DISCUSSED IN BRIEF AND
ARGUMENT HOW FAR THE FULL FAITH AND CREDIT CLAUSE PRECLUDES THE DEFENSE
THAT THE JUDGMENT SUED UPON IN ONE STATE WAS PROCURED BY FRAUD IN
ANOTHER, FOR WE THINK IT PLAIN THAT THE PRESENT JUDGMENT IS SUBJECT TO
NO SUCH INFIRMITY.  IT IS EVIDENT THAT NO FRAUD WAS PERPETRATED ON
RESPONDENT OR ON THE NEW YORK COURTS IF THE ASSIGNMENT OF THE CLAIM TO
PETITIONER BEFORE HE BROUGHT THE SUIT IN NEW YORK OPERATED TO VEST HIM
WITH SUCH OWNERSHIP OR INTEREST IN THE CLAIM AS WOULD ENABLE HIM TO
MAINTAIN THE SUIT UPON IT THERE.  IF THE ASSIGNMENT HAD THAT EFFECT,
THE FACTS THAT IT WAS GIVEN FOR THE PURPOSE OF ENABLING PETITIONER TO
BRING THE SUIT, AND THAT HE WAS BOUND TO ACCOUNT TO A STRANGER TO THE
SUIT FOR ITS PROCEEDS, ARE IMMATERIAL, SINCE NEITHER THE COURT NOR
RESPONDENT WAS PREJUDICED BY PETITIONER'S FAILURE TO DISCLOSE THEM. 

CHOSES IN ACTION, WITH EXCEPTIONS NOT NOW MATERIAL, ARE MADE FREELY
ASSIGNABLE BY THE NEW YORK STATUTE.  SEC. 41, PERSONAL PROPERTY LAW
(CONSOL.  LAWS, C. 41).  SECTION 210 OF THE NEW YORK CIVIL PRACTICE ACT
PROVIDES "EVERY ACTION MUST BE PROSECUTED IN THE NAME OF THE REAL PARTY
IN INTEREST, EXCEPT THAT  ...  A TRUSTEE OF AN EXPRESS TRUST  ...  MAY
SUE WITHOUT JOINING WITH HIM THE PERSON FOR WHOSE BENEFIT THE ACTION IS
PROSECUTED."  BY REPEATED DECISIONS OF THE HIGHEST COURT OF THE STATE
OF NEW YORK IT HAS LONG BEEN SETTLED THAT UNDER THESE SECTIONS ANY FORM
OF ASSIGNMENT WHICH PURPORTS TO ASSIGN OR TRANSFER A CHOSE IN ACTION
CONFERS UPON THE TRANSFEREE SUCH TITLE OR OWNERSHIP AS WILL ENABLE HIM
TO SUE UPON IT.  THIS IS TRUE EVEN THOUGH THE ASSIGNMENT IS FOR THE
PURPOSE OF SUIT ONLY AND THE TRANSFEREE IS OBLIGATED TO ACCOUNT FOR THE
PROCEEDS OF SUIT TO HIS ASSIGNOR.  ALLEN V. BROWN, 44 N.Y. 228; MEEKER
V. CLAGHORN, 44 N.Y. 349; SHERIDAN V. MAYOR, 68 N.Y. 30; MCCAULEY V.
GEORGIA RAILROAD BANK, 239 N.Y. 514; 147 N.E. 175; MEYERS V. CREDIT
LYONNAIS, 259 N.Y. 399; 182 N.E. 61; BANCA C.I. TRUST CO. V. CLARKSON,
274 N.Y. 69, 74; 8 N.E.2D 281; BROWN V. POWERS, 53 APP. DIV. 251; 65
N.Y.S. 733; BIRDSALL V. READ, 188 APP. DIV. 46; 176 N.Y.S. 369. 

HERE THE ASSIGNMENT, WHICH IN PLAIN TERMS PURPORTED "TO SELL, ASSIGN,
TRANSFER AND SET OVER" THE CHOSE IN ACTION TO PETITIONER, WAS
SUFFICIENT UNDER THE NEW YORK STATUTES AND AUTHORITIES TO GIVE
PETITIONER DOMINION OVER THE CLAIM FOR PURPOSES OF SUIT.  IN THAT
RESPECT ITS LEGAL EFFECT WAS NOT CURTAILED BY THE RECITAL THAT THE
ASSIGNMENT WAS FOR PURPOSES OF SUIT AND THAT ITS PROCEEDS WERE TO BE
TURNED OVER OR ACCOUNTED FOR TO ANOTHER.  THE OHIO COURT, PLACING
EMPHASIS ON THE PRESENCE OF THE POWER OF ATTORNEY IN THE ASSIGNMENT,
DISREGARDED THE WORDS OF ASSIGNMENT AND GAVE TO THE INSTRUMENT THE MORE
RESTRICTED EFFECT OF A POWER OF ATTORNEY.  WHILE A POWER OF ATTORNEY TO
SUE, STANDING ALONE, DOES NOT UNDER THE NEW YORK LAW OPERATE AS AN
ASSIGNMENT TO VEST THE ATTORNEY WITH SUCH TITLE OR INTEREST AS WILL
ENABLE HIM TO MAINTAIN THE SUIT IN HIS OWN NAME, SPENCER V. STANDARD
CHEMICALS CORP., 237 N.Y. 479; 143 N.E. 651, THE ADDITION OF THE POWER
TO PETITIONER'S ASSIGNMENT DID NOT DEPRIVE IT OF ITS FORCE AND
CHARACTER AS AN ASSIGNMENT.  THE USE OF THE POWER OF ATTORNEY, ONCE FOR
HISTORICAL REASONS THE INDISPENSABLE ADJUNCT OF EVERY ASSIGNMENT OF A
CHOSE IN ACTION, AMES, LECTURES ON LEGAL HISTORY, 210 ET SEQ.,
WILLISTON ON CONTRACTS, REV. ED. SECS. 405, 408, DID NOT RENDER THE
ASSIGNMENT INEFFECTIVE MERELY BECAUSE, BY VIRTUE OF THE STATUTE, ITS
PRESENCE IS NO LONGER NECESSARY. 

EVEN THOUGH PETITIONER WAS DISINGENUOUS IN OMITTING TO REVEAL THE
REASSIGNMENT OF THE CLAIM IN HIS AFFIDAVIT IN THE LONDON WALLICK SUIT,
AND EVEN THOUGH THERE WAS FRAUDULENT PURPOSE IN HIS FAILURE TO DISCLOSE
THAT HE STILL HAD SOME INTEREST IN THE PROCEEDS OF THE JUDGMENT TO
WHICH LONDON WALLICK WAS ASSERTING A CLAIM, THOSE CIRCUMSTANCES DID NOT
IMPAIR THE PREVIOUS ASSIGNMENT OF THE CLAIM TO HIM OR DEPRIVE HIM OF
THE AUTHORITY, ALREADY CONFERRED BY THE REASSIGNMENT, TO MAINTAIN THE
SUIT.  WHETHER PETITIONER'S TRANSACTIONS WITH LONDON WALLICK GAVE THE
LATTER ANY EQUITABLE CLAIM TO THE JUDGMENT OR ITS PROCEEDS DOES NOT
APPEAR, BUT IN ANY CASE THE EXISTENCE OF SUCH COLLATERAL CLAIMS DOES
NOT SUBJECT THE JUDGMENT TO IMPEACHMENT BY THE JUDGMENT DEBTOR.  MATTER
OF HOLDEN, 271 N.Y. 212, 217; 2 N.E.2D 631.    RESPONDENT ALSO URGES
THAT THE COURT OF APPEALS RESTED ITS AFFIRMANCE OF THE JUDGMENT OF THE
TRIAL COURT ON THE GROUND THAT PETITIONER WAS NOT THE REAL PARTY IN
INTEREST ENTITLED TO MAINTAIN THE SUIT IN OHIO, AND THAT THIS IS A NON
FEDERAL GROUND ADEQUATE TO SUPPORT THE JUDGMENT AND IS NOT REVIEWABLE
HERE.  WHILE THE COURT INTIMATED THAT PETITIONER WAS NOT THE REAL PARTY
IN INTEREST IN OHIO, IT EVIDENTLY RESTED THIS CONCLUSION UPON ITS
OPINION THAT PETITIONER WAS NOT THE REAL PARTY IN INTEREST IN THE SUIT
IN NEW YORK.  ITS OPINION STATES THAT IF THE ASSIGNMENT "TRANSFERRED
ANY SUCH LEGAL OR EQUITABLE INTEREST OR BOTH IN HIS CLAIM TO THE
PLAINTIFF (PETITIONER) AS WOULD ENTITLE HIM TO MAINTAIN AN ACTION IN
HIS OWN NAME IN NEW YORK, THEN HE WAS A PROPER PARTY IN INTEREST THERE
AND A PROPER PARTY IN INTEREST HERE." 

WHEN A STATE COURT REFUSES CREDIT TO THE JUDGMENT OF A SISTER STATE
BECAUSE OF ITS OPINION OF THE NATURE OF THE CAUSE OF ACTION OR THE
JUDGMENT IN WHICH IT IS MERGED, AN ASSERTED FEDERAL RIGHT IS DENIED AND
THE SUFFICIENCY OF THE GROUNDS OF DENIAL ARE FOR THIS COURT TO DECIDE. 
HUNTINGTON V. ATTRILL, 146 U.S. 657, 684; KANSAS CITY SOUTHERN RY. V.
ALBERS COMMISSION CO., 223 U.S. 573, 593; KENNEY V. SUPREME LODGE, 252
U.S. 411, 415.  SO FAR AS THE COURT RESTED ITS DECISION ON ITS VIEW
THAT THE NEW YORK ASSIGNMENT CONFERRED NO RIGHT ON PETITIONER TO
MAINTAIN THE SUIT THERE, IT IS ENOUGH, AS WE HAVE POINTED OUT, THAT THE
PETITIONER WAS THE REAL PARTY IN INTEREST ENTITLED TO MAINTAIN THE SUIT
IN NEW YORK.  SO FAR AS OHIO MIGHT APPLY A DIFFERENT RULE IF THE
ORIGINAL CAUSE OF ACTION WERE PROSECUTED IN ITS COURTS, THAT FACT IS
IRRELEVANT TO ANY ISSUE NOW PRESENTED.  THE SUIT IN OHIO WAS NOT UPON
THE ASSIGNED CAUSE OF ACTION BUT UPON THE JUDGMENT OF WHICH PETITIONER
IS THE RECORD OWNER.  THE SUIT UPON IT IS UPON A DIFFERENT CAUSE OF
ACTION FROM THAT MERGED IN THE JUDGMENT.  MILWAUKEE COUNTY V. WHITE
CO., 296 U.S. 268, 275.  IT IS THE JUDGMENT AND NOT THE CAUSE OF ACTION
WHICH GAVE RISE TO IT FOR WHICH CREDIT IS CLAIMED, AND THE
CONSTITUTIONAL MANDATE REQUIRES CREDIT TO BE GIVEN TO A MONEY JUDGMENT
RENDERED ON A CIVIL CAUSE OF ACTION IN ANOTHER STATE, EVEN THOUGH THE
FORUM WOULD HAVE BEEN UNDER NO DUTY TO ENTERTAIN THE SUIT ON WHICH THE
JUDGMENT WAS FOUNDED.  CHRISTMAS V. RUSSELL, 5 WALL.  290; FAUNTLEROY
V. LUM, 210 U.S. 230; ROCHE V. MCDONALD, 275 U.S. 449; MILWAUKEE COUNTY
V. WHITE CO., SUPRA, 277. 

EVEN THOUGH THE OHIO COURT MIGHT HAVE DECLINED TO RECOGNIZE
PETITIONER AS THE PROPER PARTY TO SUE UPON THE ASSIGNED CLAIM, A SUIT
UPON A JUDGMENT OF ANOTHER STATE, BY VIRTUE OF THE CONSTITUTION, STANDS
UPON A DIFFERENT FOOTING.  THE OHIO COURT IS NOT FREE TO WITHHOLD FROM
PETITIONER, THE RECORD OWNER OF A JUDGMENT VALID AND ENFORCEABLE BY HIM
IN NEW YORK, THE FULL BENEFIT OF THE CONSTITUTIONAL COMMAND THAT THE
JUDGMENT SHALL RECEIVE IN THE COURTS OF OHIO SUCH FAITH AND CREDIT AS
IT IS ENTITLED TO RECEIVE IN NEW YORK.  A STATE WHICH MAY NOT
CONSTITUTIONALLY REFUSE TO OPEN ITS COURTS TO A SUIT ON A JUDGMENT OF
ANOTHER STATE BECAUSE OF THE NATURE OF THE CAUSE OF ACTION MERGED IN
THE JUDGMENT, KENNEY V. SUPREME LODGE, SUPRA, 415, OBVIOUSLY CANNOT, BY
THE ADOPTION OF A PARTICULAR RULE OF LIABILITY OR OF PROCEDURE, EXCLUDE
FROM ITS COURTS A SUIT ON THE JUDGMENT.  REVERSED. 
..END :























LABOR BOARD V. COLUMBIAN CO., 306 U.S. 292 


NO. 229.  ARGUED JANUARY 11, 12, 1939.  - DECIDED FEBRUARY 27, 1939.  -
96 F.2D 948, AFFIRMED. 


1.  AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD REQUIRING
REINSTATEMENT OF EMPLOYEES BASED ON A FINDING THAT THE EMPLOYER, ON A
DATE SPECIFIED, HAD REFUSED TO BARGAIN WITH THEIR UNION, HELD INVALID,
THE FINDING NOT BEING SUSTAINED BY EVIDENCE.  P. 296. 

2.  THE NATIONAL LABOR RELATIONS ACT DOES NOT COMPEL THE EMPLOYER TO
SEEK OUT HIS EMPLOYEES AND REQUEST THEIR PARTICIPATION IN NEGOTIATIONS
FOR PURPOSES OF COLLECTIVE BARGAINING, AND HE MAY IGNORE OR REJECT
PROPOSALS FOR SUCH BARGAINING WHICH COME FROM THIRD PERSONS NOT
PURPORTING TO ACT WITH AUTHORITY OF HIS EMPLOYEES.  P. 297. 

3.  SECTION 10(E) OF THE ACT IN PROVIDING THAT THE FINDINGS OF THE
BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE,
MEANS EVIDENCE WHICH IS SUBSTANTIAL, THAT IS, AFFORDING A SUBSTANTIAL
BASIS OF FACT FROM WHICH THE FACT IN ISSUE CAN REASONABLY BE INFERRED. 
P. 299. 

4.  SUBSTANTIAL EVIDENCE IS MORE THAN A SCINTILLA, AND MUST DO MORE
THAN CREATE A SUSPICION OF THE EXISTENCE OF THE FACT TO BE
ESTABLISHED.  IT IS SUCH RELEVANT EVIDENCE AS A REASONABLE MIND MIGHT
ACCEPT AS ADEQUATE TO SUPPORT A CONCLUSION, AND IT MUST BE ENOUGH TO
JUSTIFY, IF THE TRIAL WERE TO A JURY, A REFUSAL TO DIRECT A VERDICT
WHEN THE CONCLUSION SOUGHT TO BE DRAWN FROM IT IS ONE OF FACT FOR THE
JURY.  P. 300. 

NATIONAL LABOR RELATIONS BOARD V. COLUMBIAN ENAMELING & STAMPING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 305 U.S. 583, TO REVIEW A JUDGMENT REFUSING AN
APPLICATION OF THE NATIONAL LABOR RELATIONS BOARD FOR ENFORCEMENT OF
ONE OF ITS ORDERS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS PETITION TESTS THE VALIDITY OF AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD OF FEBRUARY 14, 1936, DIRECTING RESPONDENT TO DISCHARGE
FROM ITS SERVICE EMPLOYEES WHO WERE NOT EMPLOYED BY IT ON JULY 22,
1935; TO REINSTATE, TO THE VACANCIES SO CREATED, THOSE WHO WERE
EMPLOYED ON THAT DATE AND HAVE NOT SINCE RECEIVED SUBSTANTIALLY
EQUIVALENT EMPLOYMENT ELSEWHERE; AND TO DESIST FROM REFUSING TO BARGAIN
COLLECTIVELY WITH ENAMELING AND STAMPING MILL EMPLOYEES UNION NO. 19694
AS THE EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S PRODUCTION EMPLOYEES
WITH RESPECT TO RATES OF PAY, WAGES, HOURS, AND OTHER CONDITIONS OF
EMPLOYMENT.  UNLESS THE FINDING OF THE BOARD THAT RESPONDENT HAD
REFUSED TO BARGAIN COLLECTIVELY WITH THE UNION ON JULY 23, 1935, IS
SUSTAINED BY THE EVIDENCE, THE ORDER IS INVALID. 

PURSUANT TO A CHARGE LODGED WITH IT BY THE UNION, THE BOARD ISSUED
ITS COMPLAINT CHARGING RESPONDENT WITH UNFAIR LABOR PRACTICES AFFECTING
INTERSTATE COMMERCE WITHIN THE MEANING OF SEC. 8(1) AND (5) OF THE
NATIONAL LABOR RELATIONS ACT.  49 STAT. 449.  AFTER HEARING, THE BOARD
MADE FINDINGS WHICH, SO FAR AS NOW RELEVANT, MAY BE SUMMARIZED AS
FOLLOWS:  RESPONDENT CORPORATION IS ENGAGED AT TERRE HAUTE, INDIANA, IN
THE MANUFACTURE AND SALE IN INTERSTATE COMMERCE OF METAL UTENSILS AND
OTHER PRODUCTS.  ON JULY 14, 1934, RESPONDENT AND THE UNION ENTERED
INTO A WRITTEN CONTRACT FOR ONE YEAR, TERMINABLE ON THIRTY DAYS'
NOTICE, PRESCRIBING VARIOUS CONDITIONS OF EMPLOYMENT.  IT PROVIDED THAT
NO EMPLOYEE SHOULD BE DISCRIMINATED AGAINST BY REASON OF MEMBERSHIP OR
NON-MEMBERSHIP IN, OR AFFILIATION OR NON-AFFILIATION WITH ANY UNION OR
LABOR ORGANIZATION.  IT ALSO PROVIDED FOR ARBITRATION, BEFORE AN
ARBITRATION COMMITTEE, OF DISPUTES ARISING UNDER THE CONTRACT, AND THAT
"THERE SHALL BE NO STOPPAGE OF WORK BY EITHER PARTY TO THIS CONTRACT,
PENDING DECISION BY THE COMMITTEE OF ARBITRATION." 

BETWEEN THE DATE OF THE SIGNING OF THE AGREEMENT, JULY 14, 1934, AND
MARCH 23, 1935, RESPONDENT'S OFFICERS HELD NUMEROUS MEETINGS WITH
REPRESENTATIVES OF THE UNION, USUALLY THE UNION SCALE COMMITTEE, FOR
THE CONSIDERATION AND ADJUSTMENT OF VARIOUS DEMANDS OF THE UNION.  AT A
MEETING ON JANUARY 4, 1935, THE COMMITTEE PRESENTED A NUMBER OF
REQUESTS, AMONG THEM THE DEMAND THAT RESPONDENT SHOULD DISCHARGE ANY
EMPLOYEES WHO MIGHT BE SUSPENDED BY THE UNION.  THIS AND THE OTHER
DEMANDS WERE REJECTED BY RESPONDENT, AND A LATER REQUEST THAT THE
DEMANDS OF JANUARY 4TH BE ARBITRATED WAS LIKEWISE REFUSED ON THE GROUND
THAT THEY WERE NOT ARBITRABLE UNDER THE AGREEMENT.  THE COMMITTEE
AFTERWARD PRESENTED NEW DEMANDS AT OTHER MEETINGS AND THEN AT A MEETING
ON MARCH 11TH RENEWED THE DEMANDS OF JANUARY 4TH, WHICH RESPONDENT
AGAIN REJECTED.  ON MARCH 17TH THE UNION PASSED RESOLUTIONS RECITING
GRIEVANCES AND DEMANDING A CLOSED SHOP, AND ON MARCH 23RD ORDERED A
STRIKE, WHEN FOUR HUNDRED AND FIFTY OF RESPONDENT'S FIVE HUNDRED
EMPLOYEES LEFT WORK.  ON MARCH 30TH RESPONDENT ANNOUNCED THAT ITS
FACTORY WAS CLOSED INDEFINITELY. 

THE STRIKE WAS IN EFFECT JULY 5, 1935, WHEN THE NATIONAL LABOR
RELATIONS ACT WAS APPROVED, AND CONTINUED UNTIL ABOUT JULY 23RD, WHEN
RESPONDENT RESUMED OPERATIONS AT ITS PLANT.  BY AUGUST 19TH IT HAD
RECEIVED THREE THOUSAND APPLICATIONS FOR EMPLOYMENT AND HAD REEMPLOYED
ONE HUNDRED AND NINETY OF ITS PRODUCTION EMPLOYEES.  BY THE END OF THE
SECOND WEEK IN SEPTEMBER RESPONDENT HAD EMPLOYED A FULL FORCE.  ON JULY
23RD TWO LABOR CONCILIATORS FROM THE DEPARTMENT OF LABOR APPEARED IN
TERRE HAUTE AND WERE REQUESTED BY THE UNION "TO TRY AND OPEN UP
NEGOTIATIONS WITH THE RESPONDENT."  ON THAT DAY THE CONCILIATORS MET
AND CONFERRED WITH RESPONDENT'S PRESIDENT, WHO AGREED TO MEET THEM WITH
THE SCALE COMMITTEE.  SEVERAL DAYS LATER HE INFORMED THEM THAT HE WOULD
NOT MEET WITH THEM OR WITH THE SCALE COMMITTEE.  LATER RESPONDENT
RECEIVED, BUT DID NOT ANSWER, LETTERS OF THE UNION OF SEPTEMBER 20TH
AND OCTOBER 11TH, ASKING FOR A MEETING TO SETTLE THE CONTROVERSY
BETWEEN THEM. 

THE BOARD CONCLUDED THAT ON JULY 23RD THE "UNION REPRESENTED A
MAJORITY OF THE RESPONDENT'S EMPLOYEES, THAT IT SOUGHT TO BARGAIN WITH
THE RESPONDENT, THAT THE RESPONDENT REFUSED TO SO BARGAIN, AND THAT
THIS CONSTITUTED AN UNFAIR LABOR PRACTICE" WITHIN THE MEANING OF SEC.
8, SUBDIVISION (5) OF THE ACT.  IT ORDERED RESPONDENT TO DISCHARGE ALL
OF ITS PRODUCTION EMPLOYEES WHO WERE NOT EMPLOYED BY IT ON JULY 22,
1935, TO REINSTATE ITS EMPLOYEES AS OF THAT DATE, AND THEREUPON TO
DESIST FROM REFUSING TO BARGAIN WITH THE UNION AS THE EXCLUSIVE
REPRESENTATIVE OF RESPONDENT'S PRODUCTION EMPLOYEES. 

APPLICATION BY THE BOARD FOR A DECREE ENFORCING ITS ORDER WAS DENIED
BY THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT, 96 F.2D 948,
ON THE GROUND THAT AS THE EMPLOYEES HAD STRUCK BEFORE THE ENACTMENT OF
THE NATIONAL LABOR RELATIONS ACT, IN VIOLATION OF THEIR CONTRACT NOT TO
STRIKE AND TO SUBMIT DIFFERENCES TO ARBITRATION, THEY DID NOT RETAIN
AND WERE NOT ENTITLED TO PROTECTION OF THEIR STATUS AS EMPLOYEES UNDER
SEC. 2(3) OF THE ACT.  WE GRANTED CERTIORARI, 305 U.S. 583, THE
QUESTIONS PRESENTED WITH RESPECT TO THE ADMINISTRATION OF THE NATIONAL
LABOR RELATIONS ACT BEING OF PUBLIC IMPORTANCE. 

THE BOARD'S ORDER IS WITHOUT SUPPORT UNLESS THE DATE OF THE REFUSAL
TO BARGAIN COLLECTIVELY BE FIXED AS JULY 23, 1935.  THE EVIDENCE AND
FINDINGS LEAVE NO DOUBT THAT LATER, IN SEPTEMBER, RESPONDENT IGNORED
THE UNION'S REQUEST FOR COLLECTIVE BARGAINING, BUT AS AT THAT TIME
RESPONDENT'S FACTORY HAD BEEN REOPENED AND WAS OPERATING WITH A FULL
COMPLEMENT OF PRODUCTION EMPLOYEES, THE REFUSAL TO BARGAIN COULD AFFORD
NO BASIS FOR AN ORDER BY THE BOARD DIRECTING, AS OF THAT DATE, THE
DISCHARGE OF NEW EMPLOYEES AND THEIR REPLACEMENT BY STRIKERS. 
RESTORATION OF THE STRIKERS TO THEIR EMPLOYMENT, BY ORDER OF THE BOARD,
UNDER SEC. 10(C) OF THE ACT, COULD AS A PRACTICAL MATTER BE EFFECTED
ONLY IF RESPONDENT HAD FAILED IN ITS STATUTORY DUTY TO BARGAIN
COLLECTIVELY AT SOME TIME AFTER THE APPROVAL OF THE NATIONAL LABOR
RELATIONS ACT ON JULY 5TH, AND BEFORE RESPONDENT HAD RESUMED NORMAL
OPERATION OF ITS FACTORY.  THE DATE FIXED BY THE BOARD WAS JULY 23RD,
WHEN RESPONDENT REOPENED ITS FACTORY, AND THE OCCASION WAS THE PERSONAL
INTERVIEW ON THAT DAY AND A LATER TELEPHONE CONVERSATION OF
RESPONDENT'S PRESIDENT WITH THE CONCILIATORS FROM THE LABOR DEPARTMENT,
WHO WERE NOT MEMBERS OR OFFICIAL REPRESENTATIVES OF THE UNION AND WHO,
SO FAR AS THE TESTIMONY DISCLOSES, DID NOT THEN APPEAR TO THE PRESIDENT
TO BE AUTHORIZED TO SPEAK FOR THE UNION. 

IN APPRAISING THESE TRANSACTIONS BETWEEN THE CONCILIATORS AND
RESPONDENT'S PRESIDENT, IT IS IMPORTANT TO BEAR IN MIND THE NATURE AND
EXTENT OF THE LEGAL DUTY IMPOSED UPON THE EMPLOYER BY THE NATIONAL
LABOR RELATIONS ACT.  SECTION 8(5) DECLARES THAT IT IS AN "UNFAIR LABOR
PRACTICE" FOR AN EMPLOYER "TO REFUSE TO BARGAIN COLLECTIVELY WITH THE
REPRESENTATIVES OF HIS EMPLOYEES," AND SECS. 2 AND 10(C) GIVE TO THE
BOARD AN EXTENSIVE AUTHORITY TO ORDER THE EMPLOYER TO CEASE AN UNFAIR
LABOR PRACTICE AND TO COMPEL REINSTATEMENT OF EMPLOYEES WITH BACK PAY
WHEN EMPLOYMENT HAS CEASED IN CONSEQUENCE OF A LABOR DISPUTE OR UNFAIR
LABOR PRACTICE.  SEE NATIONAL LABOR RELATIONS BOARD V. MACKAY RADIO &
TELEGRAPH CO., 304 U.S. 333.  WHILE THE ACT THUS MAKES IT THE
EMPLOYER'S DUTY TO BARGAIN WITH HIS EMPLOYEES, AND FAILURE TO PERFORM
THAT DUTY ENTAILS SERIOUS CONSEQUENCES TO HIM, IT IMPOSES NO LIKE DUTY
ON HIS EMPLOYEES.  SINCE THERE MUST BE AT LEAST TWO PARTIES TO A
BARGAIN AND TO ANY NEGOTIATIONS FOR A BARGAIN, IT FOLLOWS THAT THERE
CAN BE NO BREACH OF THE STATUTORY DUTY BY THE EMPLOYER - WHEN HE HAS
NOT REFUSED TO RECEIVE COMMUNICATIONS FROM HIS EMPLOYEES - WITHOUT SOME
INDICATION GIVEN TO HIM BY THEM OR THEIR REPRESENTATIVES OF THEIR
DESIRE OR WILLINGNESS TO BARGAIN.  IN THE NORMAL COURSE OF TRANSACTIONS
BETWEEN THEM, WILLINGNESS OF THE EMPLOYEES IS EVIDENCED BY THEIR
REQUEST, INVITATION, OR EXPRESSED DESIRE TO BARGAIN, COMMUNICATED TO
THEIR EMPLOYER. 

HOWEVER DESIRABLE MAY BE THE EXHIBITION BY THE EMPLOYER OF A TOLERANT
AND CONCILIATORY SPIRIT IN THE SETTLEMENT OF LABOR DISPUTES, WE THINK
IT PLAIN THAT THE STATUTE DOES NOT COMPEL HIM TO SEEK OUT HIS EMPLOYEES
OR REQUEST THEIR PARTICIPATION IN NEGOTIATIONS FOR PURPOSES OF
COLLECTIVE BARGAINING, AND THAT HE MAY IGNORE OR REJECT PROPOSALS FOR
SUCH BARGAINING WHICH COME FROM THIRD PERSONS NOT PURPORTING TO ACT
WITH AUTHORITY OF HIS EMPLOYEES, WITHOUT VIOLATION OF LAW AND WITHOUT
SUFFERING THE DRASTIC CONSEQUENCES WHICH VIOLATION MAY ENTAIL.  TO PUT
THE EMPLOYER IN DEFAULT HERE THE EMPLOYEES MUST AT LEAST HAVE SIGNIFIED
TO RESPONDENT THEIR DESIRE TO NEGOTIATE.  MEASURED BY THIS TEST THE
BOARD'S CONCLUSION THAT RESPONDENT REFUSED TO BARGAIN WITH THE UNION IS
WITHOUT SUPPORT, FOR THE REASON THAT THERE IS NO EVIDENCE THAT THE
UNION GAVE TO THE EMPLOYER, THROUGH THE CONCILIATORS OR OTHERWISE, ANY
INDICATION OF ITS WILLINGNESS TO BARGAIN OR THAT RESPONDENT KNEW THAT
THEY REPRESENTED THE UNION.  THE EMPLOYER CANNOT, UNDER THE STATUTE, BE
CHARGED WITH REFUSAL OF THAT WHICH IS NOT PROFFERED. 

DURING THE EIGHT MONTHS PRECEDING THE STRIKE RESPONDENT HAD, UPON
REQUEST, ENTERED INTO NEGOTIATIONS WITH THE UNION ON SOME ELEVEN
DIFFERENT OCCASIONS.  SUCH MEETINGS, ALWAYS WITH SOME KNOWN
REPRESENTATIVES OF THE UNION, WERE CUSTOMARILY WITH THE UNION SCALE
COMMITTEE AND ON ITS WRITTEN REQUEST.  ALL NEGOTIATIONS WERE BROKEN OFF
BY THE UNION BY THE STRIKE WHICH FOLLOWED ALMOST IMMEDIATELY ITS
RESOLUTIONS OF MARCH 17TH.  ON JULY 23RD THE STRIKE HAD CONTINUED FOR
ABOUT FOUR MONTHS, ACCOMPANIED BY PICKETING, VIOLENCE AND DESTRUCTION
OF PROPERTY, AND HAD CULMINATED, ON JULY 22ND, IN A PROCLAMATION OF
MARTIAL LAW.  A MEETING ON JUNE 11TH HAD RESULTED IN NO CHANGE OF
ATTITUDE ON EITHER SIDE.  FROM THEN UNTIL JULY 23RD NO ATTEMPT APPEARS
TO HAVE BEEN MADE ON EITHER SIDE TO RESUME NEGOTIATIONS. 

WHILE THERE WAS BEFORE THE BOARD TESTIMONY OF THE SECRETARY OF THE
UNION THAT ON JULY 23RD HE HAD ASKED THE CONCILIATORS TO "TRY AND OPEN
UP NEGOTIATIONS," THERE WAS NO TESTIMONY THAT RESPONDENT OR ITS
OFFICERS HAD EVER BEEN INFORMED OF THAT FACT OR THAT THEY WERE ADVISED
IN ANY WAY OF THE WILLINGNESS OF THE UNION TO ENTER INTO NEGOTIATIONS. 
THIS WAS POINTEDLY BROUGHT TO THE ATTENTION OF THE BOARD AND THE TRIAL
EXAMINER BY A MOTION TO STRIKE THE TESTIMONY OF THE SECRETARY AND THAT
OF RESPONDENT'S PRESIDENT, GIVING HIS ACCOUNT OF HIS INTERVIEW WITH THE
CONCILIATORS.  BUT THE CONCILIATORS WERE NOT CALLED AS WITNESSES AND NO
ATTEMPT WAS MADE TO SUPPLY THE OMISSION. 

RESPONDENT'S PRESIDENT TESTIFIED THAT ON JULY 23RD THE CONCILIATORS
ASKED HIM IF HE WOULD MEET WITH THEM AND THE SCALE COMMITTEE; THAT HE
REPLIED THAT HE WOULD; THAT NO MEETING WAS ARRANGED AND THAT SEVERAL
DAYS LATER HE CALLED ONE OF THE CONCILIATORS ON THE TELEPHONE AND
INFORMED HIM THAT HE, THE WITNESS, "WOULD NOT HAVE ANY MEETING WITH HIM
OR WITH THE SCALE COMMITTEE."  ALL ELSE THAT TOOK PLACE BETWEEN THE
CONCILIATORS AND RESPONDENT IS LEFT A MATTER OF CONJECTURE. 

THIS TESTIMONY, ON WHICH THE BOARD RELIES TO SUPPORT ITS FINDING,
SHOWS ON ITS FACE THAT THERE WAS NO INDICATION UNTIL SOMETIME LATER
THAN JULY 23RD OF ANY UNWILLINGNESS ON THE PART OF RESPONDENT'S
PRESIDENT TO MEET THE UNION.  FURTHERMORE, IT CONTAINS NO HINT THAT THE
UNION AT ANY TIME AFTER JULY 5TH AND BEFORE SEPTEMBER COMMUNICATED TO
RESPONDENT ITS WILLINGNESS TO BARGAIN, OR THAT THE CONCILIATORS, IN
ASKING A MEETING AND DISCUSSING THE MATTER WITH RESPONDENT'S PRESIDENT,
PURPORTED TO SPEAK FOR THE UNION.  THE TESTIMONY IS CONSISTENT
THROUGHOUT WITH THE INFERENCE, AND INDEED SUPPORTS IT, THAT THE
CONCILIATORS, SO FAR AS KNOWN TO RESPONDENT, APPEARED IN THEIR OFFICIAL
ROLE AS MEDIATORS TO COMPOSE THE LONG-STANDING DISPUTE BETWEEN
RESPONDENT AND ITS EMPLOYEES; THAT THE EMPLOYER FIRST CONSENTED IN
ADVANCE TO ATTEND A MEETING, AND LATER WITHDREW ITS CONSENT WHEN THEY
HAD FAILED FOR SOME DAYS TO ARRANGE A MEETING.  WHETHER IN THE MEANTIME
THE SCALE COMMITTEE OR ANY OTHER REPRESENTATIVE OF THE UNION WAS IN
FACT WILLING TO ATTEND A MEETING DOES NOT APPEAR. 

AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE."  BUT
AS HAS OFTEN BEEN POINTED OUT, THIS, AS IN THE CASE OF OTHER FINDINGS
BY ADMINISTRATIVE BODIES, MEANS EVIDENCE WHICH IS SUBSTANTIAL, THAT IS,
AFFORDING A SUBSTANTIAL BASIS OF FACT FROM WHICH THE FACT IN ISSUE CAN
BE REASONABLY INFERRED.  WASHINGTON, V. & M. COACH CO. V. NATIONAL
LABOR RELATIONS BOARD, 301 U.S. 142; CONSOLIDATED EDISON CO. V.
NATIONAL LABOR RELATIONS BOARD, 305 U.S. 197; APPALACHIAN ELECTRIC
POWER CO. V. NATIONAL LABOR RELATIONS BOARD, 93 F.2D 985, 989; NATIONAL
LABOR RELATIONS BOARD V. THOMPSON PRODUCTS INC., 97 F.2D 13; BALLSTON
STILLWATER KNITTING CO. V. NATIONAL LABOR RELATIONS BOARD, 98 F.2D 758,
764.  SUBSTANTIAL EVIDENCE IS MORE THAN A SCINTILLA, AND MUST DO MORE
THAN CREATE A SUSPICION OF THE EXISTENCE OF THE FACT TO BE
ESTABLISHED.  "IT MEANS SUCH RELEVANT EVIDENCE AS A REASONABLE MIND
MIGHT ACCEPT AS ADEQUATE TO SUPPORT A CONCLUSION," CONSOLIDATED EDISON
CO. V. NATIONAL LABOR RELATIONS BOARD, SUPRA, P. 229, AND IT MUST BE
ENOUGH TO JUSTIFY, IF THE TRIAL WERE TO A JURY, A REFUSAL TO DIRECT A
VERDICT WHEN THE CONCLUSION SOUGHT TO BE DRAWN FROM IT IS ONE OF FACT
FOR THE JURY.  SEE BALTIMORE & OHIO R. CO. V. GROEGER, 266 U.S. 521,
524; GUNNING V. COOLEY, 281 U.S. 90, 94; APPALACHIAN ELECTRIC POWER CO.
V. NATIONAL LABOR RELATIONS BOARD, SUPRA, 989.    JUDGED BY THESE TESTS
OR ANY OF THEM WE CANNOT SAY THAT THERE WAS SUBSTANTIAL EVIDENCE THAT
RESPONDENT AT ANY TIME BETWEEN JULY 5, 1935, AND SEPTEMBER, 1935, WAS
AWARE THAT THE UNION DESIRED OR SOUGHT TO BARGAIN COLLECTIVELY WITH
RESPONDENT, OR THAT THERE IS SUPPORT IN THE EVIDENCE FOR THE BOARD'S
CONCLUSION THAT ON OR ABOUT JULY 23, 1935 RESPONDENT REFUSED TO BARGAIN
COLLECTIVELY WITH THE UNION.  AFFIRMED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

THE LABOR BOARD WAS GIVEN JURISDICTION BY CONGRESS TO HEAR AND WEIGH
EVIDENCE AND TO DETERMINE THE INFERENCES FROM IT; TO MAKE FINDINGS OF
FACT; AND TO ISSUE ORDERS NECESSARY TO EFFECTUATE THE PURPOSES OF THE
NATIONAL LABOR RELATIONS ACT.  IN APT LANGUAGE, CONGRESS LIMITED THE
POWER OF COURTS TO REVIEW THE BOARD'S FINDINGS BY PROVIDING IN THE ACT
THAT "THE FINDINGS OF THE BOARD AS TO THE FACTS, IF SUPPORTED BY
EVIDENCE, SHALL BE CONCLUSIVE." 

I BELIEVE THAT "THE INFERENCES TO BE DRAWN WERE FOR THE BOARD AND NOT
THE COURTS,"  FN1  AND THAT THE INFERENCES DRAWN BY THE BOARD WERE
SUPPORTED BY THE EVIDENCE.  COURTS SHOULD NOT - AS HERE - SUBSTITUTE
THEIR APPRAISAL OF THE EVIDENCE FOR THAT OF THE BOARD. 

THE LABOR BOARD, THE FEDERAL TRADE COMMISSION, THE INTERSTATE
COMMERCE COMMISSION, THE SECURITIES AND EXCHANGE COMMISSION AND MANY
OTHER ADMINISTRATIVE AGENCIES WERE ALL CREATED TO DEAL WITH PROBLEMS OF
REGULATION OF EVER INCREASING COMPLEXITY IN THE ECONOMIC FIELDS OF
TRADE, FINANCE AND INDUSTRIAL CONFLICTS.  CONGRESS THUS SOUGHT TO
UTILIZE PROCEDURES MORE EXPEDITIOUS AND ADMINISTERED BY MORE
SPECIALIZED AND EXPERIENCED EXPERTS THAN COURTS HAD BEEN ABLE TO
AFFORD.  THE DECISION HERE TENDS TO NULLIFY THIS CONGRESSIONAL EFFORT. 

THE LABOR BOARD CONCLUDED THAT "ON OR ABOUT JULY 23, 1935, THE
COMPANY REFUSED TO BARGAIN COLLECTIVELY WITH THE UNION AS THE
REPRESENTATIVE OF ITS EMPLOYEES, OR AT ALL,  ...  "  THIS CONCLUSION IS
HERE SET ASIDE ONLY BECAUSE THE COURT BELIEVES THE EVIDENCE BEFORE THE
BOARD DID NOT SUPPORT ITS PARTICULAR UNDERLYING FINDING THAT "IT SEEMS
CLEAR THAT  ...  (THE) PRESIDENT OF THE RESPONDENT, KNEW THAT THE UNION
WAS SEEKING THROUGH THE (FEDERAL) CONCILIATORS TO BARGAIN WITH THE
RESPONDENT WITH RESPECT TO THE SETTLEMENT OF THE STRIKE." 

UNDISPUTED EVIDENCE DISCLOSED THAT ON JULY 23, 1935, THE CONCILIATORS
- AT THE EXPRESS INSTANCE OF THE UNION - CONFERRED FOR THREE OR FOUR
HOURS WITH THE PRESIDENT OF RESPONDENT; THAT THE ONLY PURPOSE OF THE
CONCILIATORS WAS TO ARRANGE A MEETING BETWEEN THE COMPANY AND THE UNION
IN ORDER TO BRING ABOUT COLLECTIVE BARGAINING; THAT THE PRESIDENT
AGREED WITH THE CONCILIATORS TO MEET THE UNION AND THE CONCILIATORS AT
A DATE TO BE SET; BUT THAT SEVERAL DAYS THEREAFTER (WHEN THE COMPANY
HAD OBTAINED OTHER EMPLOYEES AND WAS OPERATING UNDER THE PROTECTION OF
THE MILITIA) THE PRESIDENT - AGAIN ACTING FOR THE COMPANY - CALLED THE
CONCILIATORS AND FLATLY REFUSED TO MEET FURTHER WITH THEM OR THE
UNION.  THE COURT FINDS ONLY A SINGLE LINK MISSING IN THE CHAIN OF
EVIDENCE SHOWING THAT THE COMPANY REFUSED TO BARGAIN WITH THE UNION,
I.E., THAT THERE WAS NO EVIDENCE TO JUSTIFY THE BOARD'S FINDING THAT
THE PRESIDENT OF THE COMPANY WAS AWARE THE CONCILIATORS HAD APPROACHED
THE COMPANY AT THE REQUEST OF THE UNION.  BUT THE "COURTS CANNOT PICK
AND CHOOSE BITS OF EVIDENCE TO MAKE FINDINGS OF FACT CONTRARY TO THE
FINDINGS OF" AN ADMINISTRATIVE BODY.  FN2  AND THE STORY IN THIS RECORD
DISCLOSES A BROAD BASIS FOR THE INFERENCE THAT THE COMPANY DID KNOW IT
WAS ACTUALLY REFUSING THE UNION'S REQUEST. 

FOR THIRTY-THREE YEARS PRIOR TO JULY, 1934, THE COMPANY RAN A NON
UNION PLANT.  ABOUT THAT DATE, A MAJORITY OF THE EMPLOYEES WERE
ORGANIZED BY AN AFFILIATE OF THE AMERICAN FEDERATION OF LABOR.  THE
COMPANY FIRST REFUSED TO SIGN AN AGREEMENT WITH THE UNION BUT DID SO,
JULY 14, 1934, UPON THE INTERVENTION OF THE REGIONAL LABOR BOARD
FUNCTIONING UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT.  THIS AGREEMENT
WAS TO CONTINUE A YEAR, WAS SUBJECT TO MODIFICATION BY MUTUAL CONSENT,
AND PROVIDED FOR ARBITRATION OF DISPUTES ARISING UNDER IT.  THEREAFTER,
PURSUANT TO THE AGREEMENT, MEETINGS WERE HELD BETWEEN THE UNION AND
RESPONDENT AND THE UNION SUBMITTED REPEATED REQUESTS AND GRIEVANCES,
RELATING TO THE "CHECK-OFF" SYSTEM, WAGE INCREASES, THE POSSIBILITY OF
A CLOSED SHOP, ETC.  THESE WERE REFUSED AND COUNTER GRIEVANCES OF THE
COMPANY WERE SUBMITTED AND DISCUSSED.  IN MEETINGS AND BY MAIL, THE
UNION CONTINUED TO SUBMIT GRIEVANCES - THAT BACK-PAY ACCRUED DURING
SHUT-DOWNS WAS OWING, THAT THE COMPANY WAS DEALING WITH INDIVIDUAL
EMPLOYEES AND, IN MARCH, 1935, THAT THE COMPANY BY REFUSING TO
ARBITRATE HAD BROKEN ITS AGREEMENT.  MARCH 22, THE UNION CALLED A
STRIKE, THE TESTIMONY SHOWING THAT IT WAS CALLED "ON ACCOUNT OF THE
COMPANY'S REFUSAL TO HONOR AND ABIDE BY THE AGREEMENT SIGNED BEFORE THE
LABOR BOARD JULY 14, 1934  ...  (AS TO) MINIMUM DAYS, WAGES, AND ANY
EMPLOYEE BEING CALLED OUT AND NOT USED" AND BECAUSE THE COMPANY HAD
"REFUSED ARBITRATION ON THIS AGREEMENT."  THEREAFTER, THE COMPANY
CLOSED ITS PLANT, CONSISTENTLY URGED INDIVIDUAL MEMBERS OF THE UNION TO
RETURN TO WORK AND DESERT THE UNION'S EFFORTS - BY STRIKE - TO OBTAIN
COLLECTIVE BARGAINING, AND PUBLICLY ANNOUNCED THAT IT WOULD NOT MEET
WITH THE MEMBERS OF THE UNION AND THAT IT WAS WILLING TO TAKE ITS
INDIVIDUAL EMPLOYEES BACK, BUT "WITHOUT UNION RECOGNITION OR
AGREEMENT."  JUNE 11, THE COMPANY DID MEET WITH THE UNION'S
REPRESENTATIVES BUT INSURED THE IMPOSSIBILITY OF ANY SUCCESSFUL
COLLECTIVE BARGAINING BY REITERATING AT THE OUTSET THAT THE COMPANY
WOULD NOT RECOGNIZE THE UNION.  JULY 23, THE UNION ASKED THE
CONCILIATORS TO SEE THE PRESIDENT OF THE COMPANY. 

TO CONCLUDE THAT THE COMPANY - THROUGH ITS PRESIDENT - WAS UNAWARE
THE CONCILIATORS WERE ACTING AT THE INSTANCE OF THE UNION, AND,
THEREFORE, IS NOT TO BE HELD RESPONSIBLE FOR ITS FLAT REFUSAL TO MEET
WITH ITS EMPLOYEES, IS BOTH TO IGNORE THE RECORD AND TO SHUT OUR EYES
TO THE REALITIES OF THE CONDITIONS OF MODERN INDUSTRY AND INDUSTRIAL
STRIFE.  THE ATMOSPHERE OF A STRIKE BETWEEN AN EMPLOYER AND EMPLOYEES
WITH WHOM THE EMPLOYER IS FAMILIAR DOES NOT EVOKE, AND SHOULD NOT
REQUIRE, PUNCTILIOUS OBSERVANCE OF LEGALISTIC FORMALITIES AND SOCIAL
EXACTNESS IN DISCUSSIONS RELATIVE TO THE SETTLEMENT OF THE STRIKE.  IT
IS DIFFICULT TO IMAGINE THAT - DURING SEVERAL HOURS OF CONVERSATION
BETWEEN THE CONCILIATORS AND THE COMPANY'S PRESIDENT CONCERNING A
FUTURE MEETING OF UNION AND COMPANY - THE CONCILIATORS REFRAINED FROM
REFERENCE TO THE UNION'S REQUEST THAT THE CONCILIATORS ARRANGE SUCH A
FUTURE MEETING.  IN A REALISTIC VIEW, THE COMPANY'S STATEMENT OF JULY
23 TO THE CONCILIATORS, THAT IT WOULD MEET WITH THEM AND THE UNION,
CLEARLY INDICATED THE COMPANY'S ACCEPTANCE OF THE FACT THAT THE
CONCILIATORS WERE APPEARING FOR THE UNION.  THE COMPANY'S DECLARATION
TO THE CONCILIATORS, SEVERAL DAYS LATER, THAT IT WOULD NOT MEET WITH
THE UNION OR THE CONCILIATORS, EQUALLY REPRESENTS THE COMPANY'S
RECOGNITION AND ACCEPTANCE OF THE FACT THAT THE CONCILIATORS WERE A
MEANS OF DEALING WITH THE UNION. 

NOT ONLY DID THE LABOR BOARD FIND THE EVIDENCE SUFFICIENT TO SHOW
THAT THE COMPANY REFUSED TO BARGAIN WITH THE UNION ON OR ABOUT JULY 23,
BUT THE COURT BELOW REACHED THE SAME CONCLUSION.  THE RULE IS WELL
SETTLED THAT FINDINGS OF FACT CONCURRED IN BY TWO LOWER COURTS WILL NOT
"BE DISTURBED UNLESS PLAINLY WITHOUT SUPPORT."  FN3  THIS RULE EQUALLY
APPLIES WHEN AN ADMINISTRATIVE BODY AND A LOWER COURT - AS HERE -
CONCUR ON FINDINGS OF FACT,  FN4  AND THE RULE IS EVEN MORE PERSUASIVE
WHERE, AS IN THE ACT CREATING THE LABOR BOARD, IT IS PROVIDED THAT "THE
FINDINGS OF THE BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL
BE CONCLUSIVE."  THE MAJORITY OPINION  FN5  OF THE COURT OF APPEALS IN
THIS CASE SAID: 

"THIS CONCLUSION (REFUSAL TO ENFORCE THE BOARD'S ACTION) DOES NOT
MEAN THAT WE APPROVE OR UPHOLD THE REFUSAL OF THE RESPONDENT TO MEET
THE REQUEST OF THE CONCILIATORS AND ENTER INTO NEGOTIATIONS LOOKING
TOWARD THE SETTLEMENT OF DISPUTES AFTER THE EMPLOYEES HAD QUIT THEIR
EMPLOYMENT.  RESPONDENT'S EMPLOYEES WERE LARGELY UNIONIZED.  UNDER THE
ACT, RESPONDENT, WHEN REQUESTED TO NEGOTIATE, WAS IN DUTY BOUND TO DO
SO.  NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP.,
301 U.S. 1.  INSTEAD IT LENT A FRIENDLY EAR TO UNWISE COUNSEL WHOLLY
OUT OF SYMPATHY WITH THE LEGISLATION DESIGNED TO AVOID AND SETTLE
CAPITAL-LABOR DISPUTES.  IT ERRED IN ITS REFUSAL TO RESPECT THE LAW AND
...  (IGNORED) THE REQUEST OF THOSE CHARGED WITH THE BURDENSOME TASK
OF WORKING OUT A PEACEFUL SOLUTION OF WHAT HAD BECOME A BITTER
CONTROVERSY.  THERE IS LITTLE OR NO EXPLANATION WHICH WE CAN FIND FOR
THEIR REFUSAL, SAVE AN OPEN, DEFIANT, FLOUTING OF THE LAW OF THE
LAND." 

RESPONDENT'S STRIKING EMPLOYEES REMAINED EMPLOYEES - WHILE ON STRIKE
WITHIN THE MEANING OF THE NATIONAL LABOR RELATIONS ACT (SEC. 2(3))
BECAUSE THEIR WORK HAD CEASED "AS A CONSEQUENCE OF  ... (AND) IN
CONNECTION WITH  ...  (A) CURRENT LABOR DISPUTE.  ...  "  THE STATUTORY
RIGHTS OF THESE STRIKING EMPLOYEES COULD NOT BE DESTROYED, AND
RESPONDENT COULD NOT COMMIT UNFAIR LABOR PRACTICES AND THEN ESCAPE
LIABILITY BY REOPENING THE PLANT WITH A FULL COMPLEMENT OF NON-UNION
MEN. 

SECOND.  THE COURT BELOW WAS OF OPINION THAT THE STRIKE OF MARCH 22,
1935, VIOLATED THE PARTICULAR PROVISION OF THE JULY 14, 1934, CONTRACT
FN6  WITH THE COMPANY THAT "THERE SHALL BE NO STOPPAGE OF WORK BY
EITHER PARTY TO THIS CONTRACT, PENDING DECISION BY THE COMMITTEE OF
ARBITRATION."  SOLELY BECAUSE IT BELIEVED THE UNION HAD VIOLATED ITS
CONTRACT, THE COURT BELOW DECLINED TO ENFORCE THE BOARD'S ORDER, AND
HELD THAT THE COMPANY COULD NOT BE MADE RESPONSIBLE FOR ITS OWN
VIOLATION OF THE ACT. 

IN THIS, I BELIEVE THE COURT BELOW WAS IN ERROR.  A DISAGREEMENT OVER
THE TERMS OF A CONTRACT GOVERNING EMPLOYER-EMPLOYEE RELATIONS IS A
LABOR DISPUTE WITHIN THE TERMS OF THE ACT.  SUCH A DISAGREEMENT CAN -
AS IT DID HERE - PRODUCE INDUSTRIAL STRIFE WHICH THE ACT WAS EXPRESSLY
DESIGNED TO PREVENT.  HAD CONGRESS PROVIDED THAT VIOLATION OF A PRIVATE
CONTRACT WOULD DEPRIVE EMPLOYEES AND THE PUBLIC OF THE BENEFITS OF THE
LAW, A DIFFERENT QUESTION WOULD BE PRESENTED.  BUT CONGRESS DID NOT SO
PROVIDE AND, IN ADDITION, THE UNION DID NOT VIOLATE ITS CONTRACT.  IT
CONTRACTED NOT TO STRIKE "PENDING DECISION BY THE COMMITTEE OF
ARBITRATION" BUT THERE WAS NO DECISION "PENDING."  THERE WAS NO
ARBITRATION PENDING BECAUSE THE COMPANY WOULD NOT ARBITRATE.  IF THE
CONTRACT WAS BROKEN, IT WAS THE COMPANY - NOT THE UNION - THAT BROKE
IT. 

I BELIEVE THE JUDGMENT OF THE COURT BELOW SHOULD BE REVERSED AND THAT
THE BOARD'S ORDER SHOULD BE ENFORCED. 

FN1  NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES,
303 U.S. 261, 271. 

FN2  FEDERAL TRADE COMM'N V. STANDARD EDUCATION SOCIETY, 302 U.S.
112, 117; FEDERAL TRADE COMM'N V. ALGOMA CO., 291 U.S. 67, 73; CF.,
FEDERAL TRADE COMM'N V. KEPPEL & BRO., 291 U.S. 304, 314. 

FN3  GENERAL PICTURES CO. V. WESTERN ELECTRIC CO., 304 U.S. 175, 178;
UNITED STATES V. CHEMICAL FOUNDATION, 272 U.S. 1, 14; VIRGINIAN RY. V.
FEDERATION, 300 U.S. 515, 542. 

FN4  ILLINOIS CENTRAL R. CO. V. INTERSTATE COMMERCE COMM'N, 206 U.S.
441, 466. 

FN5  THREE JUDGES SAT IN THE COURT BELOW.  ONE WROTE THE OPINION FOR
THE MAJORITY; THE SECOND JUDGE CONCURRED IN THE CONCLUSION OF THAT
OPINION; THE THIRD JUDGE DISSENTED BUT EXPRESSLY FOUND THAT THERE WAS
EVIDENCE TO SUPPORT THE FINDINGS THAT THE COMPANY REFUSED TO BARGAIN
COLLECTIVELY WITH ITS EMPLOYEES. 

FN6  "IN ANY CASE IN WHICH A SATISFACTORY SETTLEMENT OF A DISPUTE
ARISING UNDER THIS CONTRACT CANNOT BE REACHED, SUCH DISPUTE SHALL BE
REFERRED TO A COMMITTEE OF ARBITRATION COMPOSED OF TWO PERSONS SELECTED
BY THE MANAGEMENT, TWO PERSONS SELECTED BY THE UNION, AND FIFTH PERSON
TO BE SELECTED BY THESE FOUR, WHO SHALL REACH A DECISION WHICH SHALL BE
FINAL AND BINDING UPON BOTH PARTIES TO THIS CONTRACT.  THERE SHALL BE
NO STOPPAGE OF WORK BY EITHER PARTY TO THIS CONTRACT, PENDING DECISION
BY THE COMMITTEE OF ARBITRATION." 

MR. JUSTICE REED JOINS IN THIS DISSENT. 
..END :



TAYLOR V. STANDARD GAS CO., 306 U.S. 307 


NO. 312.  ARGUED JANUARY 5, 1939.  - DECIDED FEBRUARY 27, 1939.  - 96
F.2D 693, REVERSED. 


1.  APPRAISAL OF THE PROPERTY OF A CORPORATION UNDERGOING
REORGANIZATION UNDER SEC. 77B OF THE BANKRUPTCY ACT - ACCEPTED BY THIS
COURT IN VIEW OF CONCURRENT FINDINGS OF TWO COURTS BELOW AND
SUBSTANTIAL EVIDENCE SUSTAINING THEIR FINDINGS.  P. 314. 

2.  THE SO-CALLED INSTRUMENTALITY RULE IS BUT A CONVENIENT WAY OF
DESIGNATING THE APPLICATION, IN PARTICULAR CIRCUMSTANCES, OF THE
BROADER EQUITABLE PRINCIPLE THAT THE DOCTRINE OF CORPORATE ENTITY,
RECOGNIZED GENERALLY AND FOR MOST PURPOSES, WILL NOT BE REGARDED WHEN
SO TO DO WOULD WORK FRAUD OR INJUSTICE.  THIS PRINCIPLE HAS BEEN
APPLIED IN APPROPRIATE CIRCUMSTANCES TO GIVE MINORITY STOCKHOLDERS
REDRESS AGAINST WRONGFUL INJURY TO THEIR INTERESTS BY A MAJORITY
STOCKHOLDER.  P. 322. 

3.  A PROVISION NEW IN BANKRUPTCY LEGISLATION, WITH RESPECT TO THE
STANDING OF STOCKHOLDERS IN CORPORATE REORGANIZATION, IS FOUND IN SEC.
77B (B) OF THE BANKRUPTCY ACT, WHICH ENACTS THAT A PLAN OF
REORGANIZATION "MAY INCLUDE PROVISIONS MODIFYING OR ALTERING THE RIGHTS
OF STOCKHOLDERS GENERALLY, OR ANY CLASS OF THEM, EITHER THROUGH THE
ISSUANCE OF NEW SECURITIES OF ANY CHARACTER OR OTHERWISE."  P. 322. 

4.  SECTION 77B OF THE BANKRUPTCY ACT AUTHORIZES THE COURT, AS A
COURT OF EQUITY, TO RECOGNIZE THE RIGHTS AND STATUS OF THE PREFERRED
STOCKHOLDERS OF A BANKRUPT CORPORATION ARISING OUT OF THE WRONGFUL AND
INJURIOUS CONDUCT OF A CONTROLLING CORPORATION IN THE MISMANAGEMENT OF
THE BANKRUPT'S AFFAIRS.  P. 322. 

5.  A PARENT CORPORATION WITH COMPLETE CONTROL OF A SUBSIDIARY
GROSSLY MISMANAGED ITS AFFAIRS THROUGH MANY YEARS AND, ACCORDING TO THE
ACCOUNTS BETWEEN THEM, BECAME ITS CREDITOR IN AN ENORMOUS SUM. 
MEANWHILE, THE PREFERRED STOCKHOLDERS OF THE SUBSIDIARY HAD NO VOICE IN
ITS MANAGEMENT BECAUSE THE CHARTER DENIED THEM VOTING POWER SO LONG AS
DIVIDENDS WERE PAID THEM, AND BECAUSE THE DOMINANT CORPORATION CAUSED
THE SUBSIDIARY, NOTWITHSTANDING ITS PRECARIOUS CONDITION, TO PAY SUCH
DIVIDENDS WHEN DUE.  IN A REORGANIZATION PROCEEDING UNDER SEC. 77B OF
THE BANKRUPTCY ACT, THE DISTRICT COURT APPROVED A COMPROMISE OF THE
PARENT COMPANY'S CLAIM, AND ON THAT BASIS APPROVED A PLAN OF
REORGANIZATION INVOLVING FORMATION OF A NEW SUCCESSOR CORPORATION,
DISCHARGE OF OTHER OBLIGATIONS, AND SATISFACTION OF THE COMPROMISED
CLAIM BY AWARDING TO THE PARENT COMPANY A LARGE MAJORITY OF THE NEW
COMPANY'S COMMON STOCK, THUS CONTINUING ITS COMPLETE CONTROL, BUT
ALLOWING ONLY A MINORITY OF SUCH STOCK TO THE OLD PREFERRED
STOCKHOLDERS.  HELD: 

(1)  THAT THE DISTRICT COURT ABUSED ITS DISCRETION IN NOT REJECTING
THE COMPROMISE AND THE PLAN OF REORGANIZATION.  PP. 309, 323. 

(2)  IF A REORGANIZATION IS EFFECTED, THE AMOUNT AT WHICH THE PARENT
COMPANY'S CLAIM IS ALLOWED IS NOT IMPORTANT IF IT IS TO BE REPRESENTED
BY STOCK IN THE NEW COMPANY, PROVIDED THE STOCK TO BE AWARDED IT IS
SUBORDINATE TO THAT AWARDED PREFERRED STOCKHOLDERS OF THE BANKRUPT.  P.
324. 

(3)  NO PLAN OUGHT TO BE APPROVED WHICH DOES NOT ACCORD SUCH
PREFERRED STOCKHOLDERS A RIGHT OF PARTICIPATION IN THE EQUITY IN THE
ASSETS PRIOR TO THAT OF THE PARENT COMPANY, AND AT LEAST EQUAL VOICE
WITH THAT COMPANY IN THE MANAGEMENT.  ID. 

TAYLOR ET AL., INDEPENDENT COMMITTEE, V. STANDARD GAS & ELECTRIC CO.
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 305 U.S. 584, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT APPROVING A PLAN OF REORGANIZATION UNDER SEC. 77B OF
THE BANKRUPTCY ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER THE DISTRICT COURT ABUSED ITS
DISCRETION IN APPROVING THE COMPROMISE OF A CLAIM BY A PARENT AGAINST A
SUBSIDIARY CORPORATION AND A PLAN OF REORGANIZATION BASED UPON THE
COMPROMISE, IN PROCEEDINGS UNDER SEC. 77B OF THE BANKRUPTCY ACT.  FN1
THE CIRCUIT COURT OF APPEALS, BY A DIVIDED COURT, APPROVED THE DISTRICT
COURT'S ORDER.  FN2 

THE PETITIONERS ARE A COMMITTEE FOR THE PROTECTION OF PREFERRED
STOCKHOLDERS.  THE RESPONDENTS ARE THE TRUSTEE OF THE DEBTOR, DEEP ROCK
OIL CORPORATION (A DELAWARE CORPORATION WHOSE BUSINESS WAS THAT OF
PRODUCING, REFINING, AND SELLING GASOLINE, OIL, AND OTHER PETROLEUM
PRODUCTS, FROM LANDS LOCATED IN OKLAHOMA, KANSAS, TEXAS, AND ARKANSAS),
A REORGANIZATION COMMITTEE, REPRESENTING NOTEHOLDERS AND CERTAIN
HOLDERS OF PREFERRED STOCK, AND STANDARD GAS AND ELECTRIC COMPANY,
WHICH OWNS PRACTICALLY ALL OF THE COMMON STOCK OF THE DEBTOR, CLAIMING
AS A CREDITOR. 

THE DEBTOR WAS ORGANIZED IN 1919 TO TAKE OVER THE PROPERTIES THEN
BEING OPERATED BY ONE C.B. SHAFFER.  FN3  STANDARD GAS & ELECTRIC
COMPANY, HEREINAFTER CALLED STANDARD, THEN HAD INVESTMENTS IN VARIOUS
UTILITY PROPERTIES BUT HAD NEVER BEEN INTERESTED IN OIL.  BYLLESBY &
COMPANY, HEREINAFTER CALLED BYLLESBY, AN INVESTMENT BANKING CORPORATION
WHICH CONTROLLED STANDARD, ENTERED INTO A CONTRACT WITH SHAFFER WHEREBY
HE WAS TO ORGANIZE THE DEBTOR CORPORATION AND TO BE PAID BY THAT
CORPORATION FOR HIS PROPERTIES $15,580,000 MADE UP OF CASH, A NOTE, AND
PREFERRED AND COMMON STOCK OF THE COMPANY.  BYLLESBY AGREED TO PURCHASE
$11,000,000 PAR VALUE OF FIRST MORTGAGE BONDS OF AN AUTHORIZED ISSUE OF
$15,000,000, $5,000,000 PAR VALUE OF PREFERRED STOCK, AND 120,000
SHARES OF COMMON STOCK, PAR $1, FOR $15,200,000 IN CASH, TO BE APPLIED
BY THE COMPANY TO THE CASH PAYMENTS TO BE MADE TO SHAFFER AND FOR
WORKING CAPITAL. 

SHAFFER RECEIVED FOR THE PROPERTIES TURNED OVER BY HIM 80,000 SHARES
OF COMMON STOCK, 50,000 SHARES OF $100 PAR PREFERRED STOCK, $9,500,000
IN CASH AND A NOTE OF BYLLESBY AND STANDARD FOR $1,000,000.  IN FACT
$12,000,000 OF THE FIRST MORTGAGE BONDS WERE UNDERWRITTEN BY A
SYNDICATE FORMED BY BYLLESBY AND SOLD TO THE PUBLIC.  THE RESULT OF THE
ABOVE TRANSACTIONS WAS TO LEAVE DEEP ROCK WITH APPROXIMATELY $6,700,000
OF CASH.  SHORTLY THEREAFTER THE REMAINING $3,000,000 OF BONDS WERE
PLEDGED TO SECURE DEEP ROCK'S NOTES FOR $2,000,000.  FROM ITS
ORGANIZATION DEEP ROCK WAS, MOST OF THE TIME, "TWO JUMPS AHEAD OF THE
WOLF," AS ONE OF STANDARD'S OFFICERS TESTIFIED.  THE COMMON STOCK WENT
INTO A VOTING TRUST WHICH GAVE STANDARD AND SHAFFER EQUAL CONTROL. 
SHAFFER UNDERTOOK THE MANAGEMENT OF THE PROPERTIES AND BUSINESS.  AFTER
TWO YEARS STANDARD BECAME DISSATISFIED WITH SHAFFER'S MANAGEMENT AND HE
SEVERED HIS CONNECTION WITH THE COMPANY SELLING HIS COMMON STOCK TO
STANDARD AND SURRENDERING TO DEEP ROCK 50,000 SHARES OF PREFERRED STOCK
WHICH WAS CANCELLED. 

THENCEFORWARD THE DEBTOR WAS UNDER THE COMPLETE CONTROL AND
DOMINATION OF STANDARD THROUGH OWNERSHIP OF THE COMMON STOCK. 
STANDARD'S OFFICERS, DIRECTORS, AND AGENTS ALWAYS CONSTITUTED A
MAJORITY OF THE BOARD.  THE REMAINING DIRECTORS WERE OPERATING OFFICERS
OR EMPLOYES OF DEEP ROCK WHO HAD BEEN EMPLOYED ON BEHALF OF DEEP ROCK
BY STANDARD OR THE BYLLESBY MANAGEMENT CORPORATION, HEREAFTER CALLED
MANAGEMENT CORPORATION, A WHOLLY OWNED SUBSIDIARY OF STANDARD, OR WERE
UNDER THE COMPLETE CONTROL OF STANDARD.  A MAJORITY OF DEEP ROCK'S
OFFICERS WERE OFFICERS OR DIRECTORS OF STANDARD OR OF THE MANAGEMENT
CORPORATION, OR OF BOTH.  THE OFFICERS OF THE DEBTOR, WHO WERE CHOSEN
FOR THEIR TECHNICAL OR BUSINESS EXPERIENCE IN THE OIL INDUSTRY,
ALTHOUGH ALLOWED SOME DISCRETION IN THE MATTER OF DEVELOPMENT AND
OPERATION OF THE OIL PROPERTIES, REPORTED TO AND WERE ALWAYS SUBJECT TO
THE DIRECTION OF OFFICERS AND DIRECTORS OF STANDARD.  ALL OF THE FISCAL
AFFAIRS OF THE DEBTOR WERE WHOLLY CONTROLLED BY STANDARD, WHICH WAS ITS
BANKER AND ITS ONLY SOURCE OF FINANCIAL AID. 

DEEP ROCK WAS PLACED IN THE HANDS OF A RECEIVER IN MARCH 1933 AND THE
PRESENT PROCEEDING UNDER SEC. 77B OF THE BANKRUPTCY ACT WAS INSTITUTED
IN JUNE 1934.  STANDARD FILED A CLAIM AS A CREDITOR IN THE RECEIVERSHIP
AND IN THE BANKRUPTCY PROCEEDINGS, WHICH THE RECEIVERS AND THE TRUSTEE
RESISTED.  THE CLAIM WAS REFERRED TO A MASTER, BEFORE WHOM TRIAL LASTED
MANY MONTHS.  ALL THE WITNESSES WERE OFFICERS, DIRECTORS OR AGENTS OF
STANDARD, OR ITS AFFILIATES, AND OFFICERS OF THE DEBTOR.  ALL THE
DOCUMENTARY EVIDENCE CAME FROM THE BOOKS AND RECORDS OF STANDARD AND
DEEP ROCK.  THE BASIS OF CLAIM WAS AN OPEN ACCOUNT WHICH EMBRACED
TRANSACTIONS BETWEEN STANDARD AND DEEP ROCK FROM THE LATTER'S
ORGANIZATION IN 1919 TO THE RECEIVERSHIP IN 1933.  THE ACCOUNT CONSISTS
OF THOUSANDS OF ITEMS OF DEBIT AND CREDIT.  THE BOOK ENTRIES WERE MADE
UNDER THE DIRECTION OF STANDARD'S AUDITING DEPARTMENT, WHICH SUPERVISED
THE AUDITING DEPARTMENT OF DEEP ROCK, AND IT IS NOT SURPRISING,
THEREFORE, THAT THE BOOKS OF THE TWO COMPANIES AGREE WITH RESPECT TO
ALL ITEMS. 

THE ACCOUNT CONTAINS DEBITS TO DEEP ROCK IN EXCESS OF $52,000,000 AND
CREDITS OF APPROXIMATELY $43,000,000 LEAVING A BALANCE SHOWN TO BE DUE
STANDARD OF $9,342,642.37, WHICH WAS THE AMOUNT OF THE CLAIM
PRESENTED.  CASH PAYMENTS BY STANDARD TO DEEP ROCK, OR TO OTHERS FOR
ITS ACCOUNT, AS SHOWN BY THE BOOKS, TOTAL $31,804,145.04.  MANAGEMENT
AND SUPERVISION FEES PAID OR CREDITED TO MANAGEMENT CORPORATION AMOUNT
TO $1,219,034.83.  INTEREST CHARGES BY STANDARD TO DEEP ROCK ON OPEN
ACCOUNT BALANCES TOTAL $4,819,222.07.  RENTAL CHARGES UPON A LEASE TO
DEEP ROCK OF OIL PROPERTIES OWNED BY A STANDARD SUBSIDIARY BUT CLAIMED
BY PETITIONERS TO BELONG, IN EQUITY, TO DEEP ROCK, AMOUNT TO
$4,525,000.  DEBITS BY STANDARD TO DEEP ROCK OF THE AMOUNTS OF
DIVIDENDS DECLARED BY DEEP ROCK TO STANDARD, BUT NOT PAID, REACHED THE
SUM OF $3,502,653.  IN ADDITION THERE ARE HUNDREDS OF DEBITS AND
CREDITS REPRESENTING OTHER INTERCOMPANY ITEMS. 

TWO PREFERRED STOCKHOLDERS WERE PERMITTED TO INTERVENE IN THE
PROCEEDINGS AND THEY JOINED IN THE TRUSTEE'S OBJECTIONS TO THE CLAIM. 
MANY TRANSACTIONS ENTERED IN THE ACCOUNT WERE ATTACKED AS FRAUDULENT
AND IT WAS ASSERTED THAT AS STANDARD HAD MADE DEEP ROCK ITS MERE AGENT
OR INSTRUMENTALITY IT COULD NOT TRANSMUTE ITSELF FROM THE STATUS OF THE
PROPRIETOR OF DEEP ROCK'S BUSINESS TO THAT OF CREDITOR.  THE HEARINGS
BEFORE THE MASTER WERE CLOSED, BUT BEFORE HE MADE ANY REPORT, AND AS A
RESULT OF NEGOTIATIONS INITIATED BY THE REORGANIZATION COMMITTEE
ORGANIZED AT THE INSTANCE OF BYLLESBY, REPRESENTING APPROXIMATELY
EIGHTY-TWO PER CENT. OF THE NOTEHOLDERS AND SIXTY PER CENT. OF THE
PREFERRED STOCKHOLDERS OF DEEP ROCK, STANDARD PROPOSED A COMPROMISE OF
ITS CLAIM. 

THE COURT REFERRED THE PROPOSAL TO THE MASTER WHO REPORTED
FAVORABLY.  THE TRUSTEE AND HIS COUNSEL ALSO RECOMMENDED THE APPROVAL
OF THE COMPROMISE, WHICH INVOLVED THE ALLOWANCE OF STANDARD'S CLAIM AT
$5,000,000.  IN CONTEMPLATION OF THE APPROVAL OF THIS COMPROMISE A
REORGANIZATION OF DEEP ROCK WAS PROPOSED BY THE REORGANIZATION
COMMITTEE.  THE PLAN WAS BASED UPON THE TRUSTEE'S APPRAISAL OF THE
DEBTOR'S ASSETS AT $16,800,000, OF WHICH $7,300,000 REPRESENTED NET
CURRENT ASSETS, MAINLY CASH, AND THE REMAINDER COMPRISED FIXED ASSETS
VALUED AT $9,500,000.  IT PROVIDED THAT UPON APPROVAL OF THE COMPROMISE
OF STANDARD'S CLAIM, THE REORGANIZATION WOULD BE EFFECTED BY THE
FORMATION OF A NEW COMPANY WHICH WOULD TAKE OVER THE DEBTOR'S ASSETS
AND WOULD ISSUE $10,000,000 PAR VALUE OF FIFTEEN YEAR SIX PER CENT.
INCOME DEBENTURES WHICH WERE TO GO TO THE HOLDERS OF THE DEBTOR'S
UNPAID NOTES OF LIKE AMOUNT; 25,000 SHARES OF $7 CUMULATIVE PREFERRED
STOCK AND 520,000 SHARES OF NO PAR COMMON STOCK, OF WHICH THE ENTIRE
PREFERRED STOCK AND 390,000 SHARES OF COMMON SHOULD GO TO STANDARD ON
ACCOUNT OF ITS CLAIM, 80,000 SHARES OF COMMON TO THE NOTEHOLDERS, AND
50,000 SHARES OF COMMON TO THE PREFERRED STOCKHOLDERS OF THE OLD
COMPANY.  STANDARD'S CLAIM TO THE EXTENT OF $3,500,000 WAS TO STAND ON
A PARITY WITH THE DEBTOR'S NOTES. 

IN THE DISTRICT COURT THE PETITIONERS INSISTED THAT AS THE TESTIMONY
BEFORE THE MASTER HAD BEEN CLOSED HE SHOULD BE REQUIRED TO PASS UPON
THE PROVABILITY OF STANDARD'S CLAIM AND NO REORGANIZATION PLAN SHOULD
BE CONSIDERED UNTIL THE VALIDITY OF THE CLAIM HAD BEEN ADJUDICATED. 
THE COURT, WITHOUT PASSING ON THIS DEMAND, REFUSED TO APPROVE THE
COMPROMISE OR THE PLAN OF REORGANIZATION.  REFERRING TO THE 50,000
SHARES OF PREFERRED STOCK OUTSTANDING, THE JUDGE STATED THAT SOMEBODY
HAD RECEIVED THE MONEY REPRESENTED BY THIS STOCK FROM THE PUBLIC; THAT
THE PLAN IN EFFECT WIPED OUT PREFERRED STOCKHOLDERS AND THAT HE COULD
NOT APPROVE ANY PLAN WHICH HAD THIS EFFECT.  IN THE COURSE OF THE
HEARING HE STATED:  "THE EVIDENCE IS OVERWHELMING THAT STANDARD RAN
THIS COMPANY; THEY OFFICERED IT; THEY CAPITALIZED IT; IT IS JUST A
CHILD IN THEIR HANDS, AND IF THERE EVER WAS A CASE THE LAW IS CLEAR ON,
IT IS NOTHING BUT AN INSTRUMENTALITY, ACCORDING TO THE ADMISSIONS."  HE
INDICATED, HOWEVER, THAT HE WOULD APPROVE A PLAN ACCORDING STANDARD A
PARITY WITH THE NOTEHOLDERS FOR A SMALLER PROPORTION OF ITS CLAIM
ALLOWING THE BALANCE ON A PARITY WITH THE PREFERRED STOCKHOLDERS, AND
SUGGESTED THAT THE PARTIES NEGOTIATE FURTHER IN AN EFFORT TO REACH A
FAIR RESULT. 

MONTHS LATER THE REORGANIZATION COMMITTEE PRESENTED AN AMENDED PLAN
WHICH, AS MODIFIED BY THE COURT, CONTEMPLATED THE COMPROMISE OF
STANDARD'S CLAIM AT $5,000,000, AS BEFORE, AND THE ORGANIZATION OF A
NEW COMPANY WHICH SHOULD ISSUE $10,000,000 PAR VALUE OF DEBENTURES AND
520,000 SHARES OF COMMON STOCK.  THESE SECURITIES WERE TO BE
DISTRIBUTED AS FOLLOWS:  THE NEW ISSUE OF DEBENTURES WAS TO GO TO THE
HOLDERS OF THE OLD NOTES.  IN LIEU OF INTEREST ON THE OLD NOTES
ACCUMULATED TO JANUARY 1, 1937, TOTALING $2,300,000, THE NOTEHOLDERS
WERE TO RECEIVE $1,200,000 IN CASH AND 40,000 SHARES OF COMMON STOCK;
INTEREST ACCRUING SUBSEQUENT TO JANUARY 1, 1937, WAS TO BE PAID IN
CASH.  THE OLD PREFERRED STOCKHOLDERS WERE TO RECEIVE 100,000 SHARES OF
COMMON STOCK AND STANDARD WAS TO RECEIVE FOR ITS CLAIM 380,000 SHARES
OF COMMON STOCK.  THUS THERE WAS ALLOCATED TO STANDARD APPROXIMATELY
SEVENTY-THREE PER CENT., TO THE OLD PREFERRED STOCKHOLDERS NINETEEN PER
CENT., AND TO THE NOTEHOLDERS EIGHT PER CENT. OF THE COMMON STOCK.  THE
DISTRICT COURT PERMITTED THE PETITIONERS TO INTERVENE AND, OVER THEIR
OBJECTIONS, APPROVED THE COMPROMISE AND THE PLAN.  A MAJORITY OF THE
CIRCUIT COURT OF APPEALS EXAMINED THE RECORD ONLY TO THE EXTENT OF
DETERMINING THAT IT WAS POSSIBLE THAT STANDARD MIGHT ESTABLISH ITS
CLAIM IN WHOLE OR IN PART, AND CONCLUDED THAT THE DISTRICT COURT HAD
NOT EXCEEDED THE BOUNDS OF REASONABLE DISCRETION IN GRANTING ITS
APPROVAL.  ONE JUDGE THOUGHT THAT THE INSTRUMENTALITY RULE WAS
APPLICABLE; THAT, UNDER THE RULE, STANDARD HAD NO PROVABLE CLAIM; AND
THAT IT WAS AN ABUSE OF DISCRETION TO APPROVE THE COMPROMISE AND THE
REORGANIZATION PLAN.  WE AGREE WITH THE CONCLUSION OF THE DISSENTING
JUDGE, BUT FOR DIFFERENT REASONS. 

THE PETITIONERS INSIST THAT THE APPRAISAL UPON WHICH THE PLAN WAS
BASED WAS INORDINATELY LOW AND THAT, FOR THIS REASON ALONE, THE PLAN
SHOULD NOT HAVE BEEN APPROVED.  THE APPRAISAL WAS SUPPORTED BY
SUBSTANTIAL EVIDENCE AND THE VALUES SHOWN BY IT WERE APPROVED AND
ADOPTED BY THE DISTRICT COURT AND BY THE CIRCUIT COURT OF APPEALS.  WE
ACCEPT THE CONCURRENT FINDINGS OF THE TWO COURTS THAT THE VALUE OF THE
DEBTOR'S ASSETS DOES NOT EXCEED $17,000,000. 

AS THE DEBENTURES TO BE ISSUED TO THE NOTEHOLDERS, PLUS THE CASH THEY
ARE TO GET, TOTAL $11,200,000, THE EQUITY REMAINING IN THE PROPERTY IS
NOT OVER $5,800,000.  STANDARD'S SHARE OF THIS EQUITY WILL BE SEVENTY
THREE PER CENT., OR $4,234,000, AND WILL GIVE IT COMPLETE CONTROL OF
THE NEW COMPANY.  THE PREFERRED STOCKHOLDERS WILL RECEIVE NINETEEN PER
CENT. OR $1,020,000,  - A MINORITY INTEREST WITHOUT REPRESENTATION ON
THE BOARD OF DIRECTORS.  THE QUESTION IS WHETHER, WITHIN THE BOUNDS OF
REASON AND FAIRNESS, SUCH A PLAN CAN BE JUSTIFIED.  WE THINK THE
HISTORY OF STANDARD'S DEALINGS WITH DEEP ROCK REQUIRES A NEGATIVE
ANSWER. 

WITHOUT GOING INTO THE MINUTIAE OF THE TRANSACTIONS BETWEEN THE TWO
COMPANIES, ENOUGH MAY BE STATED TO EXPOSE THE REASONS FOR OUR
DECISION.  AS HAS BEEN STATED, STANDARD CAME INTO COMPLETE CONTROL OF
DEEP ROCK IN 1921.  FROM THE OUTSET DEEP ROCK WAS INSUFFICIENTLY
CAPITALIZED, WAS TOPHEAVY WITH DEBT AND WAS IN PARLOUS FINANCIAL
CONDITION.  STANDARD SO MANAGED ITS AFFAIRS AS ALWAYS TO HAVE A
STRANGLEHOLD UPON IT. 

AT ORGANIZATION DEEP ROCK HAD CASH WORKING CAPITAL OF ONLY ABOUT
$6,600,000 AND A MORTGAGE INDEBTEDNESS OF $12,000,000, THE INTEREST AND
SINKING FUND REQUIREMENTS OF WHICH WERE NEARLY $2,000,000 A YEAR.  ITS
ASSETS AT THAT TIME WERE APPRAISED AT ABOUT $16,000,000.  SHORTLY
THEREAFTER IT CREATED A FURTHER NOTE ISSUE OF $2,000,000.  UPON THE
ACQUIREMENT OF SHAFFER'S INTEREST, IN 1921, STANDARD CAUSED DEEP ROCK
TO ISSUE SHORT TERM NOTES OF A PART OF $3,500,000.  DEEP ROCK ALSO,
BETWEEN 1921 AND 1924, BORROWED SUBSTANTIAL SUMS ON PROMISSORY NOTES
SOME OF WHICH WERE DISCOUNTED OR SUBSEQUENTLY TAKEN UP BY STANDARD.  SO
INADEQUATE WAS DEEP ROCK'S CAPITALIZATION THAT, IN THE PERIOD FROM
ORGANIZATION TO 1926, THE BALANCE DUE ON OPEN ACCOUNT TO STANDARD GREW
TO MORE THAN $14,800,000.  STANDARD DETERMINED TO PLACE SOME OF THIS
INDEBTEDNESS OF DEEP ROCK WITH THE PUBLIC.  IN ORDER TO DO SO IT HAD TO
IMPROVE DEEP ROCK'S BALANCE SHEET.  THIS IT DID BY PURCHASING 80,000
SHARES OF PREFERRED STOCK FOR WHICH IT CREDITED DEEP ROCK
$7,223,333.33.  IT THEN BOUGHT $7,500,000 FACE VALUE TWO YEAR SIX PER
CENT. NOTES FOR $7,273,750, WHICH WERE SOLD TO THE PUBLIC THROUGH A
SYNDICATE ORGANIZED BY BYLLESBY.  DEEP ROCK'S REQUIREMENTS OF
ADDITIONAL CAPITAL PERSISTED AND, BY THE SPRING OF 1928, THE OPEN
ACCOUNT AND A NOTE WHICH DEEP ROCK HAD GIVEN STANDARD FOR ADVANCES
TOTALED OVER $11,000,000.  AS THE TWO-YEAR NOTES HELD BY THE PUBLIC
WERE MATURING, STANDARD FOUND IT NECESSARY TO MAKE A NEW OFFERING. 
THERE STILL REMAINED NEARLY $2,000,000 OF FIRST MORTGAGE BONDS
OUTSTANDING WHICH HAD TO BE RETIRED TO MAKE AN UNSECURED NOTE ISSUE
SALABLE.  STANDARD, THEREFORE, DETERMINED THAT DEEP ROCK'S BALANCE
SHEET MUST AGAIN BE PUT IN SUCH SHAPE THAT NOTES COULD BE SOLD.  IT
ACCORDINGLY PURCHASED COMMON STOCK FROM DEEP ROCK TO THE AMOUNT OF THE
THEN OPEN BALANCE AND COMMUTED 90,000 SHARES OF THE PREFERRED STOCK,
WHICH IT HELD, INTO COMMON.  IT CAUSED DEEP ROCK TO ISSUE $10,000,000
OF SIX PER CENT. NOTES WHICH WERE SOLD BY A SYNDICATE ORGANIZED BY
BYLLESBY AND APPLIED THE PROCEEDS TO THE REDEMPTION OF THE TWO-YEAR
NOTES AND THE OUTSTANDING MORTGAGE BONDS.  THIS FINANCING, HOWEVER,
MERELY CHANGED THE CHARACTER OF DEEP ROCK'S FUNDED INDEBTEDNESS AND
GAVE IT NO NEW WORKING CAPITAL.  THIS $10,000,000 NOTE ISSUE IS THE ONE
NOW OUTSTANDING.  AS BEFORE, DEEP ROCK'S RESOURCES WERE WHOLLY
INSUFFICIENT FOR ITS BUSINESS AND THE OPEN ACCOUNT BEGAN AGAIN TO BUILD
UP SO THAT BETWEEN FEBRUARY 1928 AND FEBRUARY 1933, THE DATE OF
RECEIVERSHIP, THE ACCOUNT HAD GROWN TO $9,342,642.37. 

NO DIVIDENDS WERE PAID ON PREFERRED STOCK UNTIL 1926.  IN THAT AND
THE FOLLOWING YEAR EXISTING ARREARAGES WERE PAID BY STANDARD, FOR DEEP
ROCK'S ACCOUNT, IN THE AMOUNT OF $1,435,813.  BETWEEN 1928 AND 1931
STANDARD ADVANCED DEEP ROCK, FOR PAYMENT OF PREFERRED DIVIDENDS,
$1,106,706. 

DURING THE PERIOD BETWEEN 1926 AND 1929 DEEP ROCK DECLARED DIVIDENDS
ON ITS COMMON STOCK IN A TOTAL OF $3,064,685.50.  OF THESE DIVIDENDS
$1,946,672 WAS CHARGED BY STANDARD, AS OWNER OF COMMON STOCK, AGAINST
DEEP ROCK IN THE OPEN ACCOUNT.  STANDARD TOOK NEW COMMON STOCK FOR
DIVIDENDS TO THE AMOUNT OF $1,015,437.50 AND ADVANCED DEEP ROCK CASH TO
PAY DIVIDENDS TO OUTSIDE HOLDERS OF COMMON STOCK IN THE SUM OF
$102,576.  AGAINST THE TOTAL OF $2,645,095 ADVANCED BY STANDARD TO PAY
DEEP ROCK'S DIVIDENDS, STANDARD CREDITED PAYMENTS RECEIVED FROM DEEP
ROCK IN THE OPEN ACCOUNT IN THE SUM OF $927,500. 

THESE DIVIDENDS WERE DECLARED IN THE FACE OF THE FACT THAT DEEP ROCK
HAD NOT THE CASH AVAILABLE TO PAY THEM AND WAS, AT THE TIME, BORROWING
IN LARGE AMOUNTS FROM OR THROUGH STANDARD. 

ABOUT 1922 STANDARD DECIDED THAT, IN VIEW OF THE UNSATISFACTORY
PROGRESS OF DEEP ROCK, EARNINGS MUST BE INCREASED BY THE ACQUISITION OF
ADDITIONAL OIL PROPERTIES AND BY THE ERECTION OF A MODERN GASOLINE
CRACKING PLANT.  UPON RECOMMENDATION OF THE OPERATING OFFICIALS,
STANDARD DECIDED THAT DEEP ROCK SHOULD PURCHASE THE SO-CALLED
BRADSTREET PROPERTIES, THE PRICE OF WHICH WAS $650,000.  OF THIS AMOUNT
$500,000 WAS ADVANCED BY STANDARD FOR ACCOUNT OF DEEP ROCK AND $150,000
PAID BY NOTES OF DEEP ROCK.  TITLE TO THE PROPERTY WAS TAKEN IN THE
NAME OF J. C. KENNEDY, AN EMPLOYEE OF DEEP ROCK, AS TRUSTEE.  KENNEDY
NEVER EXECUTED ANY DECLARATION OF TRUST.  DEEP ROCK CHARGED AGAINST HIM
NOT ONLY THE ORIGINAL PURCHASE PRICE OF THE BRADSTREET PROPERTIES BUT
THE MONEYS THEREAFTER EXPENDED IN THEIR DEVELOPMENT AND IN THE
ACQUISITION OF ADDITIONAL LEASES, AMOUNTING, TO OCTOBER 1, 1925, TO
$1,033,294.32, MUCH OF WHICH REPRESENTED ADVANCES BY STANDARD. 

IN 1922 DEEP ROCK CONVEYED A SMALL PORTION OF ITS LAND TO R. J. GRAF,
A STANDARD OFFICIAL, AS TRUSTEE.  UPON THIS LAND DEEP ROCK ERECTED A
NEW CRACKING PLANT AT A TOTAL COST OF $861,297.79.  THIS EXPENDITURE
WAS CHARGED TO R. J. GRAF, TRUSTEE.  AGAIN PART OR ALL OF THE SUMS SO
EXPENDED WERE ADVANCED BY STANDARD TO DEEP ROCK AND CHARGED AGAINST THE
LATTER. 

IN 1922 STANDARD HAD CAUSED A COMPANY TO BE FORMED IN DELAWARE KNOWN
AS DEEP ROCK OIL AND REFINING COMPANY, INTENDING THAT IT SHOULD TAKE
TITLE TO THE BRADSTREET PROPERTIES AND THE CRACKING PLANT.  THE
PURPOSE, AS STANDARD'S OFFICERS NOW STATE, WAS TO KEEP THESE ASSETS
FROM GOING INTO DIRECT OWNERSHIP OF DEEP ROCK AND THUS COMING UNDER THE
LIEN OF ITS MORTGAGE, SO THAT THEY COULD BE USED AS THE BASIS OF
ADDITIONAL FINANCING.  THE RECORDS OF THE REFINING COMPANY SHOW THAT
ITS CAPITAL STOCK WAS ISSUED AGAINST THE TRANSFER BY KENNEDY AND GRAF
AS TRUSTEES OF THE BRADSTREET AND CRACKING PROPERTIES BUT THERE ARE NO
CORPORATE RECORDS OF DEEP ROCK OR OF STANDARD CONCERNING ANY ACTUAL
TRANSFER AND NO BOOK ENTRIES OF DEEP ROCK OR STANDARD WERE MADE
CONCERNING THE SUPPOSED TRANSFER UNTIL DECEMBER 1925, AS OF OCTOBER 1,
1925.  AT THAT TIME, BY DIRECTION OF ONE BRAHANEY, THE CHIEF ACCOUNTING
OFFICER OF STANDARD, ENTRIES WERE MADE IN STANDARD'S BOOKS AND THOSE OF
DEEP ROCK TO EVIDENCE THE FOLLOWING TRANSACTION:  STANDARD ASSUMED THE
ADVANCES MADE BY DEEP ROCK FOR IMPROVEMENT OF THE BRADSTREET PROPERTIES
AND THE CRACKING PLANT TOTALING $1,894,592.11 BY CREDITING DEEP ROCK
WITH THAT SUM AND REFINING COMPANY GAVE ITS NOTE TO STANDARD IN THAT
AMOUNT.  DEEP ROCK ALSO CREDITED KENNEDY, TRUSTEE, WITH THE $650,000
PAID FOR THE BRADSTREET PROPERTIES AND STANDARD ASSUMED THIS CHARGE. 
THE ENTIRE CAPITAL STOCK OF REFINING COMPANY, EVIDENCING EQUITY
OWNERSHIP IN THE BRADSTREET PROPERTIES AND THE CRACKING PLANT, WAS
TRANSFERRED TO STANDARD.  THUS, ON THE FACE OF THINGS, STANDARD,
THROUGH OWNERSHIP OF THE CAPITAL STOCK OF REFINING COMPANY, OWNED AND
CONTROLLED THE BRADSTREET PROPERTIES AND THE CRACKING PLANT AND PUT
ITSELF IN SUCH A POSITION THAT, WITHOUT ITS CONTINUED COOPERATION, DEEP
ROCK COULD NOT FUNCTION. 

AS AT OCTOBER 1, 1925, BUT IN FACT SOMEWHAT LATER, AT THE DICTATION
OF STANDARD'S OFFICIALS, A LEASE WAS EXECUTED BY THE REFINING COMPANY
TO DEEP ROCK COVERING THE PROPERTIES IN QUESTION WHEREBY DEEP ROCK
SHOULD, FOR THE FIRST THREE MONTHS, PAY $75,000 PER MONTH AND, FOR THE
ENSUING FOUR AND THREE-QUARTERS YEARS, PAY $50,000 A MONTH TO REFINING
COMPANY AS RENTAL.  SUCH RENTAL AS WAS PAID BY DEEP ROCK WAS AT ONCE
DECLARED BY REFINING COMPANY AS A DIVIDEND TO STANDARD AND SUCH AS WAS
NOT PAID WAS DEBITED TO DEEP ROCK BY STANDARD IN THE OPEN ACCOUNT. 
UNDER THIS LEASE, WHICH EXPIRED OCTOBER 1, 1930, DEEP ROCK PAID, OR
BECAME OBLIGATED TO STANDARD IN THE TOTAL OF $3,075,000.  DURING THE
TERM OF THE LEASE THE OPERATIONS OF THE LEASED PROPERTIES SHOWED A NET
LOSS OF $30,401.40.  THE LEASE FURTHER PROVIDED THAT DEEP ROCK, AT ITS
OWN COST, SHOULD MAKE ALL IMPROVEMENTS AND ADDITIONS TO THE LEASED
PROPERTY, SHOULD MAKE GOOD ALL DEPRECIATION AND RETURN THE PROPERTY IN
THE SAME CONDITION AS WHEN LEASED.  ADDITIONS TO THE CRACKING PLANT
COST DEEP ROCK, DURING THE TERM $264,680.51; AND THERE WERE CHARGED
AGAINST DEEP ROCK IN ALLEGED FULFILMENT OF ITS OBLIGATIONS UNDER THE
LEASE, TAXES OF REFINING COMPANY AND OTHER ITEMS AMOUNTING TO
$192,415.91.  MEANTIME, IN TWO LETTERS WRITTEN BANKERS IN CONNECTION
WITH THE SALE OF NOTES OF DEEP ROCK, THE PRESIDENT OF DEEP ROCK, WHO
WAS ALSO PRESIDENT OF STANDARD, MADE STATEMENTS, AND WARRANTED THEIR
TRUTH, TO THE EFFECT THAT DEEP ROCK OWNED THESE LEASED PROPERTIES. 

IN SPITE OF THE LOSSES ENTAILED UPON DEEP ROCK BY THE LEASE
ARRANGEMENT, STANDARD DICTATED ITS RENEWAL FOR ANOTHER TERM OF FIVE
YEARS COMMENCING OCTOBER 1, 1930, AND FROM THAT DATE TO THE
RECEIVERSHIP DEEP ROCK PAID, OR WAS DEBITED BY STANDARD WITH,
$1,450,000, AS RENTAL AND SUFFERED, IN THE OPERATION OF THE PROPERTIES
LEASED, A TOTAL LOSS OF $1,584,458.05.  DURING THE COMBINED TERMS OF
THE TWO LEASES DEEP ROCK WAS CHARGED IN THE OPEN ACCOUNT FOR STANDARD'S
SUBSIDIARY MANAGEMENT CORPORATION IN PAYMENT OF MANAGERIAL,
ENGINEERING, AND FINANCIAL ADVICE, $1,020,000. 

IMMEDIATELY AFTER THE LAST AND PRESENTLY OUTSTANDING NOTE ISSUE WAS
SOLD TO THE PUBLIC STANDARD'S ANNUAL REPORT, FOR THE FIRST TIME,
DISCLOSED ITS CLAIM TO THE OWNERSHIP OF THE REFINING COMPANY
PROPERTIES.  AT THE DATE OF THE RECEIVERSHIP STANDARD CLAIMED IT OWNED
THE REFINING COMPANY'S PROPERTIES THROUGH STOCK OWNERSHIP, AND HELD ITS
NOTE IN THE AMOUNT OF $1,894,592.11.  THE TRUSTEE IN BANKRUPTCY
ATTACKED THIS TRANSACTION AS FRAUDULENT AND ASSERTED DEEP ROCK'S
OWNERSHIP OF ALL THE PROPERTY REPRESENTED BY THE REFINING COMPANY'S
STOCK FREE OF ANY INDEBTEDNESS TO STANDARD IN RESPECT OF IT. 

DURING THE WHOLE PERIOD FROM 1919 TO THE RECEIVERSHIP, STANDARD
CHARGED DEEP ROCK INTEREST AT THE RATE OF SEVEN PER CENT. PER ANNUM
COMPOUNDED MONTHLY ON THE BALANCE SHOWN BY THE OPEN ACCOUNT.  DURING
THE ENTIRE PERIOD THE MANAGEMENT CORPORATION CHARGED DEEP ROCK WITH
ROUND ANNUAL SUMS FOR MANAGEMENT AND SUPERVISION OF DEEP ROCK'S AFFAIRS
WHICH TOTALED $1,219,034.83, ALL OF WHICH STANDARD ASSUMED AND CHARGED
INTO THE OPEN ACCOUNT. 

IT IS IMPOSSIBLE WITHIN THE COMPASS OF THIS OPINION TO DETAIL THE
NUMEROUS OTHER TRANSACTIONS EVIDENCED BY THE BOOKS OF THE TWO COMPANIES
MANY OF WHICH WERE TO THE BENEFIT OF STANDARD AND TO THE DETRIMENT OF
DEEP ROCK.  ALL OF THEM WERE ACCOMPLISHED THROUGH THE COMPLETE CONTROL
AND DOMINATION OF STANDARD AND WITHOUT THE PARTICIPATION OF THE
PREFERRED STOCKHOLDERS WHO HAD NO VOICE OR VOTE IN THE MANAGEMENT OF
DEEP ROCK'S AFFAIRS.  FN4 

THE SUGGESTED BASIS OF COMPROMISE OF STANDARD'S CLAIM NEEDS COMMENT. 
AS HAS BEEN SAID, WHEN, IN 1928, IT BECAME NECESSARY TO REFINANCE DEEP
ROCK'S NOTE OBLIGATIONS, STANDARD HAD TO WIPE OUT THE ENORMOUS AND
THREATENING CREDIT BALANCE IN ITS FAVOR ON DEEP ROCK'S BOOKS.  IT,
THEREFORE, TOOK COMMON STOCK IN PAYMENT OF THE BALANCE.  IT IS SAID
THAT THE COMPROMISE FIGURE IS REACHED BY DISREGARDING ALL TRANSACTIONS
PRIOR TO FEBRUARY 24, 1928, WHEN STANDARD COMMUTED ITS THEN CLAIM,
STARTING FRESH FROM THAT DATE, AND CONSIDERING ONLY THE ITEMS IN THE
ACCOUNT THENCEFORWARD TO THE DATE OF RECEIVERSHIP.  IT IS ASSERTED
THAT, DURING THE PERIOD IN QUESTION, STANDARD PAID OUT, FOR ACCOUNT OF
DEEP ROCK, IN CASH, $6,850,971.50 AND CREDITED DEEP ROCK AGAINST THESE
EXPENDITURES $4,475,803.59, LEAVING A BALANCE OF CASH ADVANCED OF
$2,375,167.91, AS TO WHICH THERE CAN BE NO QUESTION; THE BRADSTREET
PROPERTIES AND THE CRACKING PLANT ARE TO BE RETURNED TO DEEP ROCK'S
OWNERSHIP BY TRANSFER OF THE STOCK OF THE REFINING COMPANY AND ITS NOTE
NOW HELD BY STANDARD.  IT IS ASSERTED THAT IN CONSIDERATION OF THIS
TRANSFER DEEP ROCK OUGHT TO ASSUME THE ORIGINAL COST OF THE BRADSTREET
PROPERTIES ADVANCED BY STANDARD ($650,000), PLUS THE AMOUNT OF THE
DISBURSEMENTS BY DEEP ROCK UPON THOSE PROPERTIES WHICH STANDARD HAD
CREDITED TO DEEP ROCK WHEN IT TOOK OVER THE REFINING COMPANY STOCK
($1,894,592.11), LESS RENTALS CHARGED BY THE REFINING COMPANY TO DEEP
ROCK PRIOR TO FEBRUARY 24, 1928, WHICH RENTALS HAD BEEN ABSORBED IN THE
SETTLEMENT BY STANDARD OF FEBRUARY 24, 1928($1,475,000).  THIS LEAVES
DEEP ROCK OWING ON THE BRADSTREET AND CRACKING PLANT ACCOUNTS
$1,585,485.18.  SIMPLE INTEREST AT FIVE PER CENT. IS TO BE ALLOWED ON
EACH OF THE TWO SUMS SO ASCERTAINED.  THIS BRINGS THE CLAIM TO
APPROXIMATELY $5,000,000.  IT IS SAID THAT THIS COMPUTATION OF THE
CLAIM ELIMINATES DEBITS TO DEEP ROCK MADE SINCE 1928 FOR THE FEES OF
MANAGEMENT CORPORATION, FOR DIVIDENDS ON PREFERRED AND COMMON STOCK
HELD BY STANDARD, AND FOR EVERY OTHER QUESTIONABLE ITEM; AND THAT THERE
CAN BE NO JUST CRITICISM OF THE RECOGNITION OF STANDARD'S CLAIM IN THE
AMOUNT REPRESENTED BY THE COMPROMISE OFFER. 

PETITIONERS INVOKE THE SO-CALLED INSTRUMENTALITY RULE,  - UNDER
WHICH, THEY SAY, DEEP ROCK IS TO BE REGARDED AS A DEPARTMENT OR AGENT
OF STANDARD,  - TO PRECLUDE THE ALLOWANCE OF STANDARD'S CLAIM IN ANY
AMOUNT.  THE RULE WAS MUCH DISCUSSED IN THE OPINION BELOW.  IT IS NOT,
PROPERLY SPEAKING, A RULE, BUT A CONVENIENT WAY OF DESIGNATING THE
APPLICATION IN PARTICULAR CIRCUMSTANCES OF THE BROADER EQUITABLE
PRINCIPLE THAT THE DOCTRINE OF CORPORATE ENTITY, RECOGNIZED GENERALLY
AND FOR MOST PURPOSES, WILL NOT BE REGARDED WHEN SO TO DO WOULD WORK
FRAUD OR INJUSTICE.  THIS PRINCIPLE HAS BEEN APPLIED IN APPROPRIATE
CIRCUMSTANCES TO GIVE MINORITY STOCKHOLDERS REDRESS AGAINST WRONGFUL
INJURY TO THEIR INTERESTS BY A MAJORITY STOCKHOLDER.  FN5  IT MUST BE
APPARENT THAT THE PREFERRED STOCKHOLDERS OF DEEP ROCK ASSERT SUCH
INJURY BY STANDARD AS THE BASIS OF THEIR ATTACK ON THE DECREE BELOW. 
WE NEED NOT STOP TO DISCUSS THE REMEDY WHICH WOULD BE AVAILABLE TO THEM
IF SEC. 77B OF THE BANKRUPTCY ACT HAD NOT BEEN ADOPTED FOR WE THINK
THAT, BY THAT SECTION, THE COURT, IN APPROVING A PLAN, WAS AUTHORIZED
AND REQUIRED, AS A COURT OF EQUITY, TO RECOGNIZE THE RIGHTS AND THE
STATUS OF THE PREFERRED STOCKHOLDERS ARISING OUT OF STANDARD'S WRONGFUL
AND INJURIOUS CONDUCT IN THE MISMANAGEMENT OF DEEP ROCK'S AFFAIRS. 

THE SECTION CONTAINS A PROVISION NEW IN BANKRUPTCY LEGISLATION WITH
RESPECT TO THE STANDING OF STOCKHOLDERS IN CORPORATE REORGANIZATION. 
SUBSECTION (B) PROVIDES: "A PLAN OF REORGANIZATION ...  (2) MAY INCLUDE
PROVISIONS MODIFYING OR ALTERING THE RIGHTS OF STOCKHOLDERS GENERALLY,
OR OF ANY CLASS OF THEM, EITHER THROUGH THE ISSUANCE OF NEW SECURITIES
OF ANY CHARACTER OR OTHERWISE; ...  "  IN THE PRESENT CASE THERE
REMAINS AN EQUITY AFTER SATISFACTION OF THE CREDITORS IN WHICH ONLY THE
PREFERRED STOCKHOLDERS AND STANDARD CAN HAVE AN INTEREST.  EQUITY
REQUIRES THE AWARD TO PREFERRED STOCKHOLDERS OF A SUPERIOR POSITION IN
THE REORGANIZED COMPANY.  THE DISTRICT JUDGE, WE THINK, PROPERLY
EXERCISED HIS DISCRETION IN REFUSING TO APPROVE THE FIRST OFFER OF
COMPROMISE AND CONCOMITANT PLAN BECAUSE IT PARTLY SUBORDINATED
PREFERRED STOCKHOLDERS TO STANDARD.  THE SAME CONSIDERATIONS WHICH
MOVED HIM TO REJECT THAT PLAN REQUIRED THE REJECTION OF THE NEW OFFER
AND THE AMENDED PLAN.    DEEP ROCK FINDS ITSELF BANKRUPT NOT ONLY
BECAUSE OF THE ENORMOUS SUMS IT OWES STANDARD BUT BECAUSE OF THE ABUSES
IN MANAGEMENT DUE TO THE PARAMOUNT INTEREST OF INTERLOCKING OFFICERS
AND DIRECTORS IN THE PRESERVATION OF STANDARD'S POSITION, AS AT ONCE
PROPRIETOR AND CREDITOR OF DEEP ROCK.  IT IS IMPOSSIBLE TO RECAST DEEP
ROCK'S HISTORY AND EXPERIENCE SO AS EVEN TO APPROXIMATE WHAT WOULD BE
ITS FINANCIAL CONDITION AT THIS DAY HAD IT BEEN ADEQUATELY CAPITALIZED
AND INDEPENDENTLY MANAGED AND HAD ITS FISCAL AFFAIRS BEEN CONDUCTED
WITH AN EYE SINGLE TO ITS OWN INTERESTS.  IN ORDER TO REMAIN IN
UNDISTURBED POSSESSION AND TO PREVENT THE PREFERRED STOCKHOLDERS HAVING
A VOTE AND A VOICE IN THE MANAGEMENT, STANDARD HAS CAUSED DEEP ROCK TO
PAY PREFERRED DIVIDENDS IN LARGE AMOUNTS.  WHATEVER MAY BE THE FACT AS
TO THE LEGALITY OF SUCH DIVIDENDS JUDGED BY THE BALANCE SHEETS AND
EARNINGS STATEMENTS OF DEEP ROCK, IT IS EVIDENT THAT THEY WOULD NOT
HAVE BEEN PAID OVER A LONG COURSE OF YEARS BY A COMPANY ON THE
PRECIPICE OF BANKRUPTCY AND IN DIRE NEED OF CASH WORKING CAPITAL.  THIS
IS ONLY ONE OF THE ASPECTS IN WHICH STANDARD'S MANAGEMENT AND CONTROL
HAS OPERATED TO THE DETRIMENT OF DEEP ROCK'S FINANCIAL CONDITION AND
ABILITY TO FUNCTION.  OTHERS ARE APPARENT FROM WHAT HAS BEEN SAID AND
FROM A STUDY OF THE RECORD. 

IF A REORGANIZATION IS EFFECTED THE AMOUNT AT WHICH STANDARD'S CLAIM
IS ALLOWED IS NOT IMPORTANT IF IT IS TO BE REPRESENTED BY STOCK IN THE
NEW COMPANY, PROVIDED THE STOCK TO BE AWARDED IT IS SUBORDINATED TO
THAT AWARDED PREFERRED STOCKHOLDERS.  NO PLAN OUGHT TO BE APPROVED
WHICH DOES NOT ACCORD THE PREFERRED STOCKHOLDERS A RIGHT OF
PARTICIPATION IN THE EQUITY IN THE COMPANY'S ASSETS PRIOR TO THAT OF
STANDARD, AND AT LEAST EQUAL VOICE WITH STANDARD IN THE MANAGEMENT. 
ANYTHING LESS WOULD BE TO REMAND THEM TO PRECISELY THE STATUS WHICH HAS
INFLICTED SERIOUS DETRIMENT ON THEM IN THE PAST.  REVERSED. 

FN1  U.S.C., TIT. 11, SEC. 207. 

FN2  TAYLOR V. STANDARD GAS & ELECTRIC CO., 96 F.2D 693. 

FN3  THE CORPORATE NAME WAS SHAFFER OIL & REFINING COMPANY.  THIS WAS
CHANGED IN 1931 TO DEEP ROCK OIL CORPORATION.  THE COMPANY WILL BE
REFERRED TO BY THE LATTER NAME. 

FN4  AT NO TIME DID THE CHARTER CONFER VOTING POWER ON PREFERRED
STOCKHOLDERS, EXCEPT IN CASE AND SO LONG ONLY AS THE COMPANY SHOULD BE
IN DEFAULT IN PAYMENT OF DIVIDENDS ON THE PREFERRED FOR A PERIOD OF
MORE THAN SIX MONTHS.  AT NO TIME DID STANDARD HAVE LESS THAN A
MAJORITY OF THE VOTING STOCK OUTSTANDING. 

FN5  COMPARE SOUTHERN PACIFIC CO. V. BOGERT, 250 U.S. 483. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :















UNITED STATES V. TOWERY, 306 U.S. 324 


NO. 360.  ARGUED JANUARY 31, 1939.  - DECIDED FEBRUARY 27, 1939.  - 97
F.2D 906, REVERSED. 


1.  BENEFITS PAYABLE TO THE INSURED UNDER A WAR RISK TERM INSURANCE
CONTRACT ON ACCOUNT OF TOTAL AND PERMANENT DISABILITY DO NOT CEASE
AFTER 240 MONTHLY INSTALLMENTS, BUT ARE CONTINUED FOR LIFE IF THE
DISABILITY LASTS SO LONG.  P. 328. 

2.  SECTION 19 OF THE WORLD WAR VETERANS' ACT OF 1924, AS AMENDED BY
ACT OF JULY 3, 1930, BARS SUITS ON YEARLY RENEWABLE TERM INSURANCE
UNLESS BROUGHT "WITHIN SIX YEARS AFTER THE RIGHT ACCRUED FOR WHICH THE
CLAIM IS MADE," OR WITHIN ONE YEAR AFTER THE DATE OF THE AMENDATORY
ACT, WHICHEVER IS THE LATER DATE; AND PROVIDES THAT FOR THE PURPOSES OF
THE SECTION "IT SHALL BE DEEMED THAT THE RIGHT ACCRUED ON THE HAPPENING
OF THE CONTINGENCY ON WHICH THE CLAIM IS FOUNDED."  HELD, THERE IS BUT
ONE "RIGHT" CONTEMPLATED BY THE SECTION, NAMELY, THE RIGHT TO BENEFIT
PAYMENTS; AND BUT ONE CRITICAL "CONTINGENCY" WHICH CONDITIONS THAT
RIGHT, NAMELY, THE OCCURRENCE OF PERMANENT TOTAL DISABILITY OR DEATH
WHILE THE POLICY REMAINS IN FORCE.  PP. 329, 331. 

CONGRESS DID NOT INTEND TO ACCORD EACH OF THE CLAIMANTS OF POSSIBLE
BENEFITS UNDER THE POLICY SIX YEARS FROM THE TIME ANY INSTALLMENT OR
LUMP SUM PAYMENT FELL DUE WITHIN WHICH TO BRING SUIT.  THE INTEREST OF
A BENEFICIARY UNDER THE POLICY IS DERIVATIVE FROM THAT OF THE VETERAN. 

THE PURPOSE OF THE 1930 AMENDMENT OF SEC. 19 WAS TO SUBSTITUTE A
UNIFORM RULE OF LIMITATION FOR SUITS ON CONTRACTS OF WAR RISK INSURANCE
IN LIEU OF THE PERIODS PRESCRIBED BY THE STATE STATUTES, WHICH,
PURSUANT TO THE CONFORMITY ACT, HAD THERETOFORE BEEN APPLIED, AND WHICH
PERIODS VARIED FROM THREE TO TWENTY YEARS. 

3.  INSURED UNDER POLICIES OF WAR RISK TERM INSURANCE WAS DISCHARGED
FROM MILITARY SERVICE IN 1919; PAID NO FURTHER PREMIUMS; AND DIED IN
1927.  ALLEGING THE OCCURRENCE OF DISABILITY ON THE DATE OF DISCHARGE,
CLAIM WAS MADE IN 1932 FOR DISABILITY AND DEATH BENEFITS AND DENIED BY
THE VETERANS ADMINISTRATION IN 1935.  SUIT WAS INSTITUTED IN 1936. 
HELD, BARRED BY LIMITATIONS.  PP. 326, 329. 

UNITED STATES V. TOWERY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 305 U.S. 588, TO REVIEW THE REVERSAL OF A JUDGMENT
DISMISSING A SUIT UPON TWO POLICIES OF WAR RISK TERM INSURANCE. 

THE SIX-YEAR LIMITATION BEGAN TO RUN AGAINST THE SUIT TO RECOVER
INSTALLMENTS OF TOTAL PERMANENT DISABILITY BENEFITS UNDER A CONTRACT OF
WAR RISK TERM INSURANCE NOT ON THE DATE AS OF WHICH EACH INSTALLMENT OF
SUCH BENEFITS ACCRUED, BUT AS OF A DATE NOT LATER THAN THE LAST DAY THE
INSURANCE WAS IN FORCE BY PREMIUM PAYMENTS. 

THE SAME LIMITATION PROVISION BEGAN TO RUN AGAINST THE SUIT OF THE
RESPONDENT AS THE BENEFICIARY NOT UPON THE DATE OF THE INSURED'S DEATH,
AT A TIME WHEN THE POLICY WAS NOT IN FORCE BY PREMIUM PAYMENTS, BUT AS
OF A DATE NOT LATER THAN THE LAST DAY THE INSURANCE WAS IN FORCE BY
PREMIUM PAYMENTS. 

SIX YEAR LIMITATION AS TO CLAIM OF BENEFICIARY RUNS ONLY FROM DEATH
OF INSURED, NOT FROM HAPPENING OF TOTAL PERMANENT DISABILITY. 

A SEPARATE SIX YEAR LIMITATION AS TO EACH INSTALLMENT OF TOTAL
PERMANENT DISABILITY BENEFITS RUNS ONLY FROM THE DUE DATE OF SUCH
INSTALLMENT. 

AS ALL INSTALLMENTS MATURING ON OR AFTER OCTOBER 3, 1926, WERE
RECOVERABLE FREE FROM THE LIMITATION BAR, THE REVERSAL OF THE DISTRICT
COURT JUDGMENT WAS PROPER. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE TURNS UPON THE PROPER CONSTRUCTION OF THE LIMITATION
PROVISION OF SEC. 19 OF THE WORLD WAR VETERANS ACT OF 1924, AS
AMENDED.  FN1 

THE RESPONDENT BROUGHT AN ACTION IN THE DISTRICT COURT FOR NORTHERN
ILLINOIS IN HIS OWN RIGHT AND AS ADMINISTRATOR OF ROBERT C. TOWERY,
DECEASED, UPON CLAIMS ON TWO WAR RISK INSURANCE TERM POLICIES ISSUED TO
THE DECEDENT WHILE IN THE MILITARY SERVICE OF THE UNITED STATES.  THE
CLAIM OF RESPONDENT AS ADMINISTRATOR WAS FOR TOTAL PERMANENT DISABILITY
BENEFITS ALLEGED TO HAVE ACCRUED TO THE INSURED IN HIS LIFETIME, AND
THE CLAIM AS BENEFICIARY DESIGNATED IN THE POLICIES WAS BASED UPON THE
DEATH OF THE INSURED.  THE COMPLAINT ALLEGED THAT THE PREMIUMS WERE
DEDUCTED FROM THE INSURED'S PAY DURING HIS MILITARY SERVICE, FROM WHICH
HE WAS DISCHARGED JUNE 18, 1919; THAT HE BECAME TOTALLY AND PERMANENTLY
DISABLED, WHILE THE POLICIES WERE IN FORCE, ON JUNE 18, 1919; THAT HE
DIED APRIL 22, 1927; THAT, ON MAY 2, 1927, RESPONDENT WAS APPOINTED
ADMINISTRATOR; THAT, ON FEBRUARY 11, 1932, RESPONDENT MADE CLAIM FOR
DISABILITY AND DEATH BENEFITS UNDER THE POLICIES; THAT THE CLAIM WAS
DENIED BY THE VETERANS ADMINISTRATION AUGUST 8, 1935.  SUIT WAS
INSTITUTED JUNE 29, 1936.  THE GOVERNMENT MOVED TO DISMISS ON THE
GROUND THAT THE ACTION WAS BARRED BY LIMITATION.  THE DISTRICT COURT
GRANTED THE MOTION AND GAVE JUDGMENT FOR THE GOVERNMENT.  ON APPEAL THE
CIRCUIT COURT OF APPEALS REVERSED.  FN2  WE GRANTED CERTIORARI BECAUSE
OF ALLEGED CONFLICT OF DECISION.  FN3 

VETERAN AND THE BUREAU AS TO A CLAIM UNDER A POLICY, THE CLAIMANT MAY
BRING AN ACTION IN THE DISTRICT COURT TO OBTAIN A DECISION OF THE
CONTROVERSY.  THE STATUTE THEN PROCEEDS: 

"NO SUIT ON YEARLY RENEWABLE TERM INSURANCE SHALL BE ALLOWED UNDER
THIS SECTION UNLESS THE SAME SHALL HAVE BEEN BROUGHT WITHIN SIX YEARS
AFTER THE RIGHT ACCURED FOR WHICH THE CLAIM IS MADE OR WITHIN ONE YEAR
AFTER THE DATE OF APPROVAL OF THIS AMENDATORY ACT, WHICHEVER IS THE
LATER DATE, ...  PROVIDED, THAT FOR THE PURPOSES OF THIS SECTION IT
SHALL BE DEEMED THAT THE RIGHT ACCRUED ON THE HAPPENING OF THE
CONTINGENCY ON WHICH THE CLAIM IS FOUNDED:  PROVIDED FURTHER, THAT THIS
LIMITATION IS SUSPENDED FOR THE PERIOD ELAPSING BETWEEN THE FILING IN
THE BUREAU OF THE CLAIM SUED UPON AND THE DENIAL OF SAID CLAIM BY THE
DIRECTOR.  ...  " 

THE CIRCUIT COURT OF APPEALS HELD THAT THE "CONTINGENCY," ON THE
HAPPENING OF WHICH "THE RIGHT ACCRUED FOR WHICH THE CLAIM IS MADE," IS
NOT DEFINED BY THE STATUTE AND MUST BE ASCERTAINED FROM THE POLICY
PROVISIONS.  IN THE LIGHT OF THESE PROVISIONS THE COURT HELD THAT, IN
THE CASE OF A CLAIM FOR BENEFITS PAYABLE TO THE INSURED, THE
CONTINGENCY IS THE ACCRUAL OF AN INSTALLMENT AND, IN THE CASE OF A
CLAIM BY A BENEFICIARY, THE CONTINGENCY IS THE DEATH OF THE INSURED. 

THE POLICY, WHILE FOR A STATED AMOUNT, CALLS FOR PAYMENT IN MONTHLY
INSTALLMENTS, TWO HUNDRED AND FORTY OF WHICH (INTEREST BEING CALCULATED
AT THREE AND ONE-HALF PER CENT.) WOULD EQUAL THE PRINCIPAL SUM. 
CONTRARY TO THE VIEW OF THE COURT BELOW, DISABILITY BENEFITS TO THE
INSURED DO NOT CEASE AT THE EXPIRATION OF TWO HUNDRED AND FORTY MONTHS
BUT ARE CONTINUED FOR LIFE IF THE DISABILITY SO LONG LASTS.  FN4
SHOULD THE INSURED DIE, HOWEVER, PRIOR TO THE PAYMENT OF TWO HUNDRED
AND FORTY INSTALLMENTS, FURTHER INSTALLMENTS UP TO THE LIMIT OF TWO
HUNDRED AND FORTY ARE PAYABLE TO HIS BENEFICIARY.  SHOULD THE
BENEFICIARY DIE BEFORE THE RECEIPT OF ALL THE REMAINING INSTALLMENTS UP
TO TWO HUNDRED AND FORTY, THE COMMUTED VALUE OF THE UNPAID INSTALLMENTS
IS PAYABLE TO THE ESTATE OF THE INSURED IN ONE SUM.  FN5  THE COURT
BELOW REACHED ITS CONCLUSION AS TO THE MEANING OF THE ACT, FIRST, BY
EXAMINATION OF THE PHRASE "WITHIN SIX YEARS AFTER THE RIGHT ACCRUED FOR
WHICH THE CLAIM IS MADE."  IN THE VIEW THAT, IN CASE OF THE DEATH OF
THE INSURED, THE BENEFICIARY HAS A "RIGHT" FOR WHICH A CLAIM MAY BE
MADE AND THAT, PRIOR TO THE DEATH OF THE INSURED, THE LATTER ALSO HAS A
"RIGHT," NAMELY, TO RECEIVE EACH MONTHLY BENEFIT INSTALLMENT, THE COURT
CONCLUDED THAT THERE WERE TWO RIGHTS.  IF THIS BE THE CORRECT VIEW
THERE IS STILL A THIRD "RIGHT,"  - THAT OF THE ADMINISTRATOR OF THE
INSURED TO CLAIM A LUMP SUM COMMUTED VALUE FOR INSTALLMENTS UNPAID TO
THE BENEFICIARY AT THE DATE OF THE LATTER'S DEATH.  THE COURT THEN
ADDRESSED ITSELF TO THE MEANING OF THE WORD "CONTINGENCY" IN THE FIRST
PROVISO OF THE SECTION: "IT SHALL BE DEEMED THAT THE RIGHT ACCRUED ON
THE HAPPENING OF THE CONTINGENCY ON WHICH THE CLAIM IS FOUNDED."  THE
COURT HELD THAT, IN THE CASE OF A DISABLED VETERAN, AT LEAST TWO
CONTINGENCIES MUST OCCUR BEFORE THE RIGHT TO ANY MONTHLY BENEFIT
ACCRUED,  - NAMELY, THE OCCURRENCE OF PERMANENT DISABILITY WHILE THE
POLICY WAS IN FORCE AND THE EXISTENCE OF THE DISABILITY AT THE DATE FOR
WHICH A PARTICULAR MONTHLY PAYMENT IS CLAIMED.  IN THE CASE OF A
BENEFICIARY, THE COURT WAS OF OPINION THAT ANOTHER CONTINGENCY MUST BE
ADDED, NAMELY, THE DEATH OF THE INSURED.  IT MADE THE CHOICE FROM THESE
POSSIBLE ALTERNATIVES BY HOLDING THAT THE RIGHT ACCRUED IN THE CASE OF
A LIVING INSURED ON THE DATE WHEN EACH MONTHLY BENEFIT PAYMENT BECAME
DUE AND, IN THE CASE OF A BENFICIARY, WHEN THE INSURED DIED.  THIS
CONSTRUCTION IS SAID TO COMPORT WITH THE LIBERAL POLICY OF CONGRESS
TOWARDS VETERANS AND TO BE SUPPORTED BY THE FACT THAT AN ALTERNATIVE
PERIOD OF ONE YEAR FROM THE DATE OF THE PASSAGE OF THE STATUTE WAS
ACCORDED BY CONGRESS.  THE COURT VIEWED THE SIX YEAR PERIOD AS A
LIBERALIZING ALTERNATIVE TO THE ONE YEAR PERIOD, AND, THEREFORE, HELD
THE CLAIM OF THE RESPONDENT, AS BENEFICIARY, WAS TIMELY BECAUSE SUIT
HAD BEEN INSTITUTED WITHIN THE SIX YEAR PERIOD AS ENLARGED BY THE
DURATION OF THE VETERANS ADMINISTRATION'S CONSIDERATION.  THE CLAIM, AS
ADMINISTRATOR, FOR INSTALLMENTS ACCRUING IN THE LIFE OF THE INSURED,
WAS HELD MAINTAINABLE FOR SUCH INSTALLMENTS AS ACCRUED DUE WITHIN SIX
YEARS (PLUS THE ADDITIONAL TIME ALLOWED FOR ADMINISTRATIVE
CONSIDERATION) PRIOR TO THE INSTITUTION OF SUIT.  WE ARE UNABLE TO
ADOPT THIS CONSTRUCTION OF THE STATUTE. 

INSTITUTION OF SUIT, WHEREAS, THE DECISION OF THE COURT BELOW WOULD
PROVIDE NO SUCH LIMITATION UPON SUITS BY VETERANS FOR TOTAL PERMANENT
DISABILITY BENEFITS, BUT SIMPLY A LIMITATION ON THE NUMBER OF
INSTALLMENTS RECOVERABLE; AND, IN APPLICATION TO DISABILITY CASES,
WOULD PRECLUDE ONLY A RECOVERY OF CERTAIN INSTALLMENTS WHEREAS NEW
SUITS MIGHT BE BROUGHT THEREAFTER BY VETERANS, IF LIVING, IN CASES IN
WHICH PRIOR SUITS HAD BEEN HELD BARRED. 

WE THINK THE LEGISLATION AND THE POLICY DO NOT CONFER TWO RIGHTS. 
THE BENEFICIARY'S INTEREST IN THE POLICY IS DERIVATIVE FROM THAT OF THE
VETERAN.  IT MAY BE TAKEN AWAY BY LEGISLATION, EVEN AFTER THE DEATH OF
THE INSURED.  FN6  THERE ARE DIFFERENT EVENTS UPON THE HAPPENING OF
WHICH THE PAYMENT OF BENEFITS TO THE VETERAN OR TO HIS BENEFICIARIES OR
TO HIS ESTATE DEPEND.  WE THINK IT HIGHLY UNLIKELY THAT CONGRESS
INTENDED TO ACCORD EACH OF THE CLAIMANTS OF POSSIBLE BENEFITS UNDER THE
POLICY SIX YEARS FROM THE TIME ANY INSTALLMENT OR LUMP SUM PAYMENT FELL
DUE WITHIN WHICH TO BRING SUIT. 

MILLIONS OF VETERANS ALLOWED THEIR YEARLY CONVERTIBLE TERM INSURANCE
TO LAPSE WHEN THEY LEFT THE SERVICE.  FN7  CONGRESS PROVIDED THAT IF,
AT THE TIME OF THE LAPSE, THE VETERAN WAS TOTALLY AND PERMANENTLY
DISABLED HE MIGHT RECOVER NOTWITHSTANDING HE HAD NOT MADE IMMEDIATE AND
TIMELY CLAIM.  SECTION 19 OF THE ACT OF 1930 WAS AN AMENDMENT OF AN
EARLIER ACT.  THE STATUTE WAS UNDOUBTEDLY INTENDED AS ONE OF REPOSE. 
THE PURPOSE OF ITS ADOPTION, AS SHOWN BY THE COMMITTEE REPORTS,  FN8
WAS TO SUBSTITUTE A UNIFORM RULE OF LIMITATION FOR SUITS ON CONTRACTS
OF INSURANCE IN LIEU OF THE STATE STATUTES, WHICH, PURSUANT TO THE
CONFORMITY ACT, HAD THERETOFORE BEEN APPLIED.  THESE VARIED AS RESPECTS
THE PERIOD PRESCRIBED FROM THREE TO TWENTY YEARS.  AS THE REPORTS SHOW,
THE ADDITIONAL YEAR FROM THE DATE OF THE PASSAGE OF THE ACT WAS GRANTED
TO PREVENT THE HARDSHIP OF CUTTING OFF CLAIMS WHICH WOULD HAVE BEEN
BARRED BY THE SIX YEAR LIMITATION AT THE DATE OF THE ACT.  A READING OF
THE SECTION AS A WHOLE IS PERSUASIVE THAT WHAT CONGRESS INTENDED BY
"THE CONTINGENCY UPON WHICH THE CLAIM IS FOUNDED" WAS THE CONTINGENCY
ON WHICH LIABILITY UNDER THE POLICY WAS BOTTOMED, NAMELY,  - PERMANENT
DISABILITY OR DEATH WHILE THE POLICY REMAINED IN FORCE. 

THE CONSTRUCTION ADOPTED BY THE COURT BELOW WOULD PERMIT THE BRINGING
OF SUITS EVEN TWENTY YEARS AFTER THE DISABILITY OCCURRED.  IT IS
OBVIOUS THAT EACH YEAR ASCERTAINMENT OF THE ESSENTIAL FACTS WHICH
CONDITIONED LIABILITY WOULD BECOME MORE DIFFICULT.  WE THINK THEN THAT,
REASONABLY CONSTRUED, THE SECTION PROVIDES THAT THERE SHALL BE BUT ONE
RIGHT,  - THAT IS, THE RIGHT TO BENEFIT PAYMENTS, AND BUT ONE CRITICAL
CONTINGENCY WHICH CONDITIONS THAT RIGHT, NAMELY, THE OCCURRENCE OF
PERMANENT TOTAL DISABILITY OR DEATH WHILE THE POLICY REMAINS IN FORCE. 

ALL THE OTHER CONTINGENCIES REFERRED TO BY THE COURT BELOW, WHICH
CONDITION ACTUAL PAYMENT OF THE BENEFITS TO ONE PERSON OR ANOTHER, ARE
OF MINOR IMPORTANCE.  THEY ARE NOT MATTERS WITH RESPECT TO WHICH
DISAGREEMENT WITH THE VETERANS ADMINISTRATION IS LIKELY. 

TWO OBJECTIONS ARE RAISED BY THE RESPONDENT TO THIS CONSTRUCTION OF
THE SECTION.  FIRST, IT IS SAID THAT IF SUIT IS BROUGHT ON A POLICY AND
JUDGMENT RECOVERED THAT JUDGMENT IS ONLY FOR THE INSTALLMENTS WHICH
HAVE THERETOFORE FALLEN DUE AND THAT IF THE GOVERNMENT SHOULD FAIL TO
PAY SUBSEQUENTLY ACCRUING INSTALLMENTS THESE MIGHT, UNDER OUR RULING,
BE BARRED BY THE SIX YEAR LIMITATION.  WE HAVE SAID:  FN9
"UNDOUBTEDLY, WHEN ONE'S RIGHT TO RECOVER IS ESTABLISHED BY JUDGMENT,
THE VETERANS' BUREAU WILL PAY HIM INSTALLMENTS MATURING IN HIS FAVOR
AFTER THE COMMENCEMENT OF THE ACTION."  THIS HAS BEEN THE CONSISTENT
ADMINISTRATIVE PRACTICE.  INDEED THE BUREAU HAS TREATED A JUDGMENT FOR
INSTALLMENTS DUE THE VETERAN AS REQUIRING, WITHOUT FURTHER CLAIM, THE
PAYMENT OF REMAINING INSTALLMENTS DUE THE BENEFICIARY AFTER HIS DEATH. 
FN10  THE OTHER OBJECTION IS THAT, AS BENEFIT PAYMENTS CEASE ON THE
CESSATION OF THE DISABILITY, THE VETERANS ADMINISTRATION MAY REFUSE
FURTHER PAYMENTS ON THAT GROUND AND, IF THE INSURED DISAGREES WITH THE
BUREAU'S RULING, A SUIT TO TEST ITS VALIDITY MAY BE BARRED.  THE ANSWER
IS THAT, UNDER THE POLICY'S TERMS AND THE ADMINISTRATIVE RULINGS, THE
POLICY IS AUTOMATICALLY REINSTATED FOR A REDUCED SUM AFTER TAKING
ACCOUNT OF THE PRIOR PAYMENT OF BENEFITS AND MAY BE CONTINUED IN FORCE
BY THE INSURED BY THE PAYMENT OF FUTURE PREMIUMS.  FN11  IF HE CONTENDS
THAT WHEN THE POLICY IS THUS REINSTATED HE IS STILL PERMANENTLY AND
TOTALLY DISABLED, HE HAS THE FULL SIX YEARS GRANTED BY THE STATUTE IN
WHICH TO LITIGATE THE CLAIM SINCE, IF HE CAN ESTABLISH HIS CONTENTION,
HE WOULD HAVE BEEN TOTALLY AND PERMANENTLY DISABLED AT A TIME WHEN THE
POLICY WAS IN FORCE. 

THE JUDGMENT IS REVERSED. 

FN1  ACT OF JUNE 7, 1924, C. 320, SEC. 19, 43 STAT. 612, AS AMENDED
BY ACT OF JULY 3, 1930, C. 849, 46 STAT. 992; U.S.C. TIT. 38, SEC.
445. 

FN2  97 F.2D 906. 

FN3  SEE UNITED STATES V. TARRER, 77 F.2D 423. 

FN4  ACT OF OCT. 6, 1917, C. 105, SEC. 402, 40 STAT. 398, 409. 
BULLETIN NO. 3 TREASURY DEPARTMENT, OCTOBER 16, 1917.  REGULATIONS AND
PROCEDURE U.S. VETERANS BUREAU 1930, PART II, PP. 1241, 1258, 1259. 

FN5  WORLD WAR VETERANS ACT, 1924, AS AMENDED, U.S.C. TIT. 38, SEC.
514; MCCULLOUGH V. SMITH, 293 U.S. 228. 

FN6  WHITE V. UNITED STATES, 270 U.S. 175. 

FN7  LYNCH V. UNITED STATES, 292 U.S. 571, 576.    FN8  HOUSE
COMMITTEE REPORT NO. 1274, 70TH CONGRESS, FIRST SESSION, P. 1.  SENATE
COMMITTEE REPORT NO. 1297, 70TH CONGRESS, FIRST SESSION, P. 1. 

FN9  UNITED STATES V. WORLEY, 281 U.S. 339, 341. 

FN10  LETTER OF SOLICITOR OF VETERANS ADMINISTRATION, FEBRUARY 8,
1938. 

FN11  VETERANS' ADMINISTRATION REGULATIONS R. 3141-3143. 
..END :
















LABOR BOARD V. SANDS MFG. CO., 306 U.S. 332 


NO. 274.  ARGUED JANUARY 12, 1939.  - DECIDED FEBRUARY 27, 1939.  - 96
F.2D 721, AFFIRMED. 


1.  FINDINGS OF THE NATIONAL LABOR RELATIONS BOARD THAT RESPONDENT, IN
VIOLATION OF SEC. 8(5) OF THE LABOR RELATIONS ACT, HAD REFUSED TO
BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF ITS EMPLOYEES; HAD
DISCRIMINATED IN REGARD TO HIRE AND TENURE OF EMPLOYMENT AND
DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION, IN VIOLATION OF SEC.
8(3); AND, IN VIOLATION OF SEC. 8(1), HAD INTERFERED WITH, RESTRAINED,
AND COERCED ITS EMPLOYEES IN THE EXERCISE OF THE RIGHT OF SELF
ORGANIZATION, AFFILIATION WITH LABOR ORGANIZATIONS AND COLLECTIVE
BARGAINING AS GUARANTEED BY SEC. 7 - HELD UNSUPPORTED BY THE EVIDENCE. 
P. 339. 

2.  ALSO UNSUPPORTED BY THE EVIDENCE WAS THE BOARD'S ULTIMATE
CONCLUSION THAT RESPONDENT'S CONDUCT PERMITTED NO REASONABLE INFERENCE
OTHER THAN THAT ITS EMPLOYEES WERE LOCKED OUT, DISCHARGED, AND REFUSED
EMPLOYMENT BECAUSE THEY WERE MEMBERS OF A PARTICULAR LABOR ORGANIZATION
AND HAD ENGAGED IN CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING.  P. 339. 

3.  RESPONDENT HAD A CONTRACT WITH A LABOR ORGANIZATION OF ITS
EMPLOYEES WHICH GAVE IT THE RIGHT TO OPERATE ITS PLANT ON THE BASIS OF
"DEPARTMENTAL SENIORITY."  IN VIOLATION OF THE AGREEMENT, THE LABOR
ORGANIZATION SUBSEQUENTLY DEMANDED THAT RESPONDENT ABANDON
"DEPARTMENTAL SENIORITY" OR SHUT DOWN ITS PLANT.  RESPONDENT CHOSE THE
LATTER COURSE.  AT THE TIME OF THE CLOSING OF THE PLANT, NO FURTHER
NEGOTIATIONS BETWEEN THE PARTIES WERE PENDING, EACH HAD REJECTED THE
OTHER'S PROPOSALS, AND THERE WERE NO ARRANGEMENTS FOR ANY FURTHER
MEETING. 

HELD THAT, IN THESE CIRCUMSTANCES, RESPONDENT WAS FREE TO TREAT THE
EMPLOYEES AS HAVING SEVERED THEIR RELATIONSHIP, AND TO CONSUMMATE THE
SEPARATION BY HIRING OTHERS TO TAKE THEIR PLACES.  THE ACT DOES NOT
FORBID THE DISCHARGE OF AN EMPLOYEE FOR REPUDIATION OF HIS AGREEMENT. 
P. 344. 

4.  RESPONDENT'S OFFER TO REEMPLOY FOUR MEN AS FOREMEN ON TERMS WHICH
MIGHT HAVE FORMED A BASIS OF COMPROMISE HAD SIMILAR OFFERS BEEN MADE TO
ALL OF THE MEN, DID NOT SUPPORT THE BOARD'S FINDING OF A REFUSAL TO
BARGAIN COLLECTIVELY WITH THE UNION.  P. 344. 

5.  HAVING THE RIGHT TO EMPLOY OTHERS TO TAKE THE PLACES OF THE
DISCHARGED EMPLOYEES, RESPONDENT HAD THE RIGHT ALSO TO CONTRACT WITH
ANOTHER UNION FOR THE SERVICES OF THE NEW MEN.  P. 345. 

6.  NOR WAS RESPONDENT PRECLUDED FROM MAKING INDIVIDUAL CONTRACTS FOR
THE REEMPLOYMENT OF SOME OF ITS DISCHARGED EMPLOYEES.  P. 345. 

7.  THE CONTENTION THAT RESPONDENT'S OFFER OF REEMPLOYMENT TO TWO OF
ITS OLD MEN ON CONDITION THAT THEY JOIN THE OTHER UNION WAS A VIOLATION
OF SEC. 8(3) OF THE ACT, HELD IRRELEVANT TO ANY ISSUE IN THIS CASE.  P.
346. 

NATIONAL LABOR RELATIONS BOARD V. SANDS MANUFACTURING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 305 U.S. 586, TO REVIEW A JUDGMENT DENYING A PETITION OF
THE LABOR BOARD FOR ENFORCEMENT OF AN ORDER AND SETTING THE ORDER
ASIDE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS DENIED THE PETITION OF THE NATIONAL
LABOR RELATIONS BOARD FOR ENFORCEMENT OF AN ORDER AGAINST THE
RESPONDENT AND GRANTED THE RESPONDENT'S PETITION TO SET ASIDE THE
ORDER.  FN1  WE ISSUED THE WRIT OF CERTIORARI BECAUSE OF ALLEGED
CONFLICT.  FN2 

AFTER COMPLAINT, ANSWER, AND HEARING, THE BOARD FOUND THAT THE
RESPONDENT, AN OHIO CORPORATION WHICH MANUFACTURES WATER HEATERS IN
CLEVELAND, HAD ENGAGED, AND CONTINUED TO ENGAGE, IN UNFAIR LABOR
PRACTICES AS DEFINED BY SEC. 8, SUBSECTIONS (1), (3), AND (5) OF THE
NATIONAL LABOR RELATIONS ACT,  FN3  AND ORDERED THE COMPANY TO CEASE
AND DESIST FROM VIOLATING THOSE PROVISIONS AND TO OFFER REINSTATEMENT
TO FORMER EMPLOYES WITH COMPENSATION FOR LOSS OF WAGES FROM SEPTEMBER
3, 1935.  FN4 

THE RESPONDENT CONTENDS AND THE COURT BELOW HELD THAT UPON THE
FINDINGS OF FACT, AND THE UNCONTRADICTED EVIDENCE, THE BOARD'S
CONCLUSIONS ARE WITHOUT SUPPORT IN THE RECORD.  THE PETITIONER INSISTS
THAT THERE IS EVIDENCE TO SUPPORT THEM.  FROM THE FINDINGS, AND THE
UNCONTRADICTED EVIDENCE, THESE FACTS APPEAR:  IN THE SPRING OF 1934
MOST OF RESPONDENT'S EMPLOYES JOINED THE MECHANICS EDUCATIONAL SOCIETY
OF AMERICA (HEREINAFTER CALLED "MESA"), AN INDEPENDENT LABOR
ORGANIZATION.  THE RESPONDENT MANIFESTED NO OPPOSITION TO THEIR SO
DOING, EXPRESSED ITS WILLINGNESS THAT ITS MEN JOIN ANY ORGANIZATION
THEY CHOSE, AND READILY MET WITH A SHOP COMMITTEE OF THE UNION TO
DISCUSS GRIEVANCES AND WORKING CONDITIONS.  AN AGREEMENT EFFECTING AN
INCREASE OF WAGES, AND AFFECTING WORKING CONDITIONS, WAS ENTERED INTO
BETWEEN THE RESPONDENT AND THE UNION.  ALTHOUGH LIMITED IN TERM TO
SIXTY DAYS IT WAS CONTINUED, BY MUTUAL AGREEMENT, AND UNDER IT ALL
MATTERS OF CONTROVERSY BETWEEN EMPLOYER AND EMPLOYES WERE SETTLED BY
CONFERENCE BETWEEN THE SHOP COMMITTEE OF THE UNION AND OFFICIALS OF THE
COMPANY. 

IN MAY 1935 THE COMMITTEE DEMANDED, AND THE COMPANY REFUSED, AN
INCREASE OF WAGES.  A STRIKE WAS CALLED, BUT NEGOTIATIONS WENT ON
BETWEEN THE COMPANY AND THE UNION.  ALL DIFFERENCES WERE ADJUSTED SAVE
THAT THE COMPANY WAS UNWILLING TO REINSTATE CERTAIN MEN ALLEGED TO BE
INCOMPETENT.  THE UNION INSISTED THAT THESE MEN BE TAKEN BACK AND
THEREAFTER BE AFFORDED A HEARING BY THE MANAGEMENT AND THE SHOP
COMMITTEE.  WHEN WORK WAS RESUMED THE COMPANY DID NOT PERMIT THE MEN IN
QUESTION TO RETURN.  THEREUPON A SECOND STRIKE WAS CALLED. 
NEGOTIATIONS AGAIN ENSUED AS A RESULT OF WHICH THE SHOP COMMITTEE
AGREED TO DRAFT AND SUBMIT A CONTRACT TO THE RESPONDENT.  THIS WAS
DONE.  THE MANAGEMENT DEMANDED CERTAIN CHANGES IN THE DRAFT, TO WHICH
THE COMMITTEE AGREED; A CONTRACT EXTENDING TO MARCH 1, 1936, WAS
EXECUTED ON JUNE 15, 1935, AND THE MEN RETURNED TO WORK.  THE AGREEMENT
PROVIDED THAT THE COMPANY WOULD RECOGNIZE THE SHOP COMMITTEE AS
REPRESENTING THE EMPLOYES FOR COLLECTIVE BARGAINING; THAT NO EMPLOYE
SHOULD BE DISCHARGED WITHOUT A HEARING BEFORE THE SHOP COMMITTEE AND
THE MANAGEMENT; THAT CERTAIN EMPLOYES SHOULD BE DISCHARGED AND NOT
REHIRED; THAT STIPULATED NOTICE SHOULD BE GIVEN OF LAYOFFS DUE TO
SHORTAGE OF WORK; THAT NEW EMPLOYES MIGHT JOIN ANY LABOR ORGANIZATION
THEY CHOSE.  IT ALSO COVERED WAGES AND HOURS OF WORK.  IT FURTHER
PROVIDED:  "IN CASE OF A MISUNDERSTANDING BETWEEN THE MANAGEMENT AND
THE EMPLOYES, THE COMMITTEE SHALL ALLOW THE MANAGEMENT FORTY-EIGHT
HOURS TO SETTLE THE DISPUTE AND, IF THEN UNSUCCESSFUL, THE COMMITTEE
SHALL ACT AS THEY SEE FIT."  PROVISIONS AS TO SENIORITY WILL BE
PRESENTLY STATED. 

IN 1934 THE COMPANY HAD AN OPPORTUNITY TO PROCURE A GOVERNMENT
ORDER.  ITS OFFICERS CONFERRED WITH THE MEN AND STATED THAT THEY WOULD
TAKE THE GOVERNMENT ORDER IF ASSURED THAT NO LABOR TROUBLE WOULD
INTERFERE WITH ITS EXECUTION.  ON RECEIVING THIS ASSURANCE THE ORDER
WAS TAKEN AND THE WORKING FORCE MORE THAN DOUBLED BY THE EMPLOYMENT OF
NEW MEN.  IT WAS AGREED WITH THE UNION THAT THESE MEN MIGHT JOINT THE
"MESA" AND IN FACT MANY OF THEM DID SO.  IT WAS ALSO AGREED THAT WHEN
THE GOVERNMENT ORDER WAS FINISHED THESE NEW MEN SHOULD BE DISCHARGED SO
THAT THE OLD MEN COULD REMAIN AT WORK. 

THE COMPANY'S PLANT WAS DIVIDED INTO A NUMBER OF DEPARTMENTS, ONE OF
WHICH WAS THE MACHINE SHOP.  THE WAGE SCALES DIFFERED IN DIFFERENT
DEPARTMENTS AND THE FOREMEN AND OLD MEN WHOM THE COMPANY EMPLOYED IN
EACH DEPARTMENT RECEIVED HIGHER WAGES THAN NEW MEN IN THE SAME
DEPARTMENT.  THE COMPANY HAD HAD A PRACTICE OF KEEPING THE OLD MEN AT
WORK, IN CASE BUSINESS WAS SLACK, BY TRANSFERRING THEM FROM THEIR OWN
DEPARTMENTS TO OTHERS AT THEIR REGULAR PAY.  WHEN NEGOTIATIONS WERE
UNDER WAY FOR THE AGREEMENT OF JUNE 15, 1935, THE COMPANY INSISTED ON
DISCONTINUING THIS PRACTICE OF TRANSFERRING OLD MEN FROM ONE DEPARTMENT
TO ANOTHER, STATING THAT IT WOULD RECOGNIZE, AS THERETOFORE, THE
SENIORITY RIGHTS OF OLD MEN BUT ONLY IN THE DEPARTMENTS IN WHICH
PARTICULAR MEN BELONGED.  THE MANAGEMENT INSISTED THAT THE PRACTICE OF
TRANSFERRING MEN FROM ONE DEPARTMENT TO ANOTHER RESULTED IN
INEFFICIENCY.  THE BOARD HAS FOUND THAT THE COMPANY IN FACT DISAPPROVED
OF THE PRACTICE BECAUSE IT RESULTED IN PAYING HIGHER WAGES THAN WOULD
HAVE BEEN THE CASE HAD THE NEW MEN BEEN RETAINED OR RECALLED TO THE
BUSY DEPARTMENT INSTEAD OF TRANSFERRING OLD MEN FROM OTHER DEPARTMENTS
THERETO.  AS A RESULT OF THE INSISTENCE OF THE RESPONDENT, CERTAIN
PARAGRAPHS OF THE PROPOSED DRAFT SUBMITTED BY THE EMPLOYES WERE
ALTERED.  THESE PARAGRAPHS FOLLOW, WITH THE ALTERATIONS DEMANDED BY THE
MANAGEMENT IN ITALICS: 

"(5)  THAT WHEN EMPLOYEES ARE LAID OFF, SENIORITY RIGHTS SHALL RULE,
AND BY DEPARTMENTS. 

"(6)  THAT WHEN ONE DEPARTMENT IS SHUT DOWN, MEN FROM THIS DEPARTMENT
WILL NOT BE TRANSFERRED OR WORK IN OTHER DEPARTMENTS UNTIL ALL OLD MEN
ONLY WITHIN THAT DEPARTMENT, WHO WERE LAID OFF, HAVE BEEN CALLED BACK. 

"(7)  THAT ALL NEW EMPLOYEES BE LAID OFF BEFORE ANY OLD EMPLOYEES, IN
ORDER TO GUARANTEE IF POSSIBLE AT LEAST ONE WEEK'S FULL TIME BEFORE THE
WORKING WEEK IS REDUCED TO THREE DAYS." 

ON JUNE 17, 1935, THE COMPANY HIRED APPROXIMATELY 30 ADDITIONAL MEN,
SOME OF WHOM HAD WORKED FOR THE RESPONDENT WHILE THE GOVERNMENT ORDER
WAS BEING FILLED.  BY THE MIDDLE OF JULY WORK WAS BECOMING SLACK AND
RESPONDENT PROCEEDED TO REDUCE ITS WORKING FORCE.  ABOUT JULY 15, 1935,
AFTER CONFERENCES BETWEEN THE MANAGEMENT AND THE EMPLOYEES, ALL THE MEN
IN THE TANK HEATER DEPARTMENT EXCEPT THE FOREMAN WERE LAID OFF. 

IN THE AGREEMENT OF JUNE 15, 1935, THE 31 MEN WHO WERE EMPLOYES OF
THE RESPONDENT PRIOR TO THE GOVERNMENT ORDER OF 1934 WERE DESIGNATED AS
"OLD MEN" AND THOSE EMPLOYED WHILE THE GOVERNMENT ORDER WAS BEING
FILLED WERE "NEW MEN."  ABOUT JULY 30, 1935, A NOTICE WAS POSTED ON THE
TIME CLOCK IN THE PLANT THAT THE NEW MEN WOULD BE LAID OFF ON JULY 30
AND THE OLD MEN WOULD BE LAID OFF ON AUGUST 2, 1935.  AFTER THE LAYOFF
OF THE NEW MEN ANOTHER NOTICE WAS POSTED TO THE EFFECT THAT THE PLANT
WOULD BE OPERATED WITH THE OLD MEN ON A SCHEDULE OF THREE DAYS A WEEK. 

THUS, BY THE END OF JULY OR THE BEGINNING OF AUGUST, SOME DEPARTMENTS
WERE BEING OPERATED ON A PART TIME BASIS AND OTHERS HAD BEEN
PRACTICALLY SHUT DOWN.  AT OR ABOUT THIS TIME, THE RESPONDENT WISHED TO
INCREASE THE WORKING FORCE IN THE MACHINE SHOP, THE KEY DEPARTMENT,
WHILE AT THE SAME TIME SHUTTING DOWN THE OTHER DEPARTMENTS.  REPEATED
CONFERENCES WERE HELD BETWEEN THE MANAGEMENT AND THE SHOP COMMITTEE IN
REFERENCE TO THIS MATTER.  THE POSITIONS OF THE RESPONDENT AND THE
EMPLOYES WERE DIAMETRICALLY OPPOSED.  THE MANAGEMENT CONTENDED THAT NEW
MEN, EXPERIENCED IN MACHINE SHOP WORK, BE EMPLOYED IN PREFERENCE TO THE
OLD MEN.  THE SHOP COMMITTEE CONTENDED THAT, UNDER THE AGREEMENT OF
JUNE 15, 1935, THE RESPONDENT COULD NOT HIRE ANY NEW MEN FOR THE
MACHINE SHOP AS LONG AS OLD MEN WERE STILL LAID OFF.  THE MANAGEMENT
CLAIMED THAT THE SHOP COMMITTEE WAS INSISTING UPON A VIOLATION OF
ARTICLE 5 OF THE AGREEMENT.  ON AUGUST 19TH AN OFFICER CONFERRED WITH
THE SHOP COMMITTEE AND ANNOUNCED THAT THE COMPANY WOULD EITHER KEEP THE
MACHINE SHOP RUNNING ACCORDING TO THE COMPANY'S PLAN OR TEMPORARILY
CLOSE THE PLANT.  THE COMMITTEE WAS REQUESTED TO CONFER WITH THE
EMPLOYES AND COMMUNICATE THEIR DECISION.  AFTER CONFERENCE WITH THE
EMPLOYES THE COMMITTEE STATED THAT THE COMPANY WOULD NOT BE ALLOWED TO
RUN THE MACHINE SHOP UNLESS IT TRANSFERRED OLD MEN IN LIEU OF NEW MEN
TO THAT SHOP, AND THAT IF IT DID NOT COMPLY WITH THIS CONDITION IT
COULD CLOSE THE PLANT.  ACCORDINGLY, ON AUGUST 21ST, NOTICE WAS POSTED
THAT THE PLANT WOULD BE CLOSED UNTIL FURTHER NOTICE. 

AUGUST 26TH AND 27TH OFFICERS OF RESPONDENT NEGOTIATED WITH THE
INTERNATIONAL ASSOCIATION OF MACHINISTS, AN AFFILIATE OF THE AMERICAN
FEDERATION OF LABOR, AND, ON AUGUST 31ST, MADE A CONTRACT WITH THAT
UNION EFFECTIVE SEPTEMBER 3RD.  IT ALSO RECRUITED LABOR FROM THE COUNTY
RELIEF ORGANIZATION.  PRACTICALLY ALL OF THE EMPLOYES SO OBTAINED WERE
MEMBERS OF THE INTERNATIONAL.  IT OFFERED REEMPLOYMENT TO SEVERAL OF
THE OLD "MESA" MEMBERS, AS FOREMEN, ON THE BASIS OF ANNUAL EMPLOYMENT
AT A LOWER HOURLY WAGE INSTEAD OF THE HIGHER HOURLY WAGE THERETOFORE
PAID THEM, SUBJECT TO LAYOFFS.  THE OFFER WAS REFUSED.  SEPTEMBER 3RD
THE PLANT REOPENED.  ON SEPTEMBER 4TH, A REPRESENTATIVE OF "MESA"
CALLED AN OFFICER OF RESPONDENT AND DEMANDED A CONFERENCE.  THE DEMAND
WAS REFUSED ON THE GROUND THAT THE MEN HAD BEEN DISCHARGED.  THE "MESA"
PICKETED THE PLANT FOR ABOUT A MONTH THEREAFTER. 

THE BOARD HELD THAT THE COMPANY HAD REFUSED TO BARGAIN COLLECTIVELY
WITH THE REPRESENTATIVES OF ITS EMPLOYES AS REQUIRED BY SEC. 8(5) OF
THE ACT; HAD DISCRIMINATED IN REGARD TO HIRE OR TENURE OF EMPLOYMENT
AND DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION CONTRARY TO THE
PROVISIONS OF SEC. 8(3); AND, IN VIOLATION OF SEC. 8(1), HAD INTERFERED
WITH, RESTRAINED, AND COERCED ITS EMPLOYES IN THE EXERCISE OF THE RIGHT
OF SELF-ORGANIZATION, AFFILIATION WITH LABOR ORGANIZATIONS AND
COLLECTIVE BARGAINING AS GUARANTEED BY SEC. 7.  THE CIRCUIT COURT OF
APPEALS DISAGREED WITH THESE CONCLUSIONS.  WE HOLD THAT ITS DECISION
WAS RIGHT. 

FIRST.  THE PETITIONER URGES THE CORRECTNESS OF THE ULTIMATE
CONCLUSION THAT THE RESPONDENT'S CONDUCT PERMITS NO REASONABLE
INFERENCE SAVE THAT THE EMPLOYES WERE LOCKED OUT, DISCHARGED, AND
REFUSED EMPLOYMENT BECAUSE THEY WERE MEMBERS OF THE "MESA" AND HAD
ENGAGED IN CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE
BARGAINING.  WE THINK THE CONCLUSION HAS NO SUPPORT IN THE EVIDENCE AND
IS CONTRARY TO THE ENTIRE AND UNCONTRADICTED EVIDENCE OF RECORD. 

THE RESPONDENT DID NOT ATTEMPT TO PREVENT ORGANIZATION OF ITS
EMPLOYES OR DISCOURAGE THEIR AFFILIATION WITH "MESA" OR INTERFERE WITH
THEIR RELATIONS WITH THAT BODY.  THERE IS NO EVIDENCE OF ESPIONAGE OR
COERCION BY THE COMPANY.  IMMEDIATELY UPON THE UNIONIZATION OF THE MEN
IN THE SPRING OF 1934, THE RESPONDENT RECOGNIZED AND CONFERRED WITH THE
SHOP COMMITTEE WHENEVER REQUESTED SO TO DO.  MAY 2, 1934, IT ENTERED
INTO AN AGREEMENT WITH THE UNION.  IT CONSULTED THE UNION RESPECTING
HIRING OF ADDITIONAL EMPLOYES FOR THE FILLING OF THE GOVERNMENT ORDER
IN THE AUTUMN OF 1934 AND COMPLIED WITH ITS PROMISE TO DISCHARGE
ADDITIONAL MEN HIRED FOR THIS PURPOSE WHEN THE ORDER HAD BEEN
COMPLETED.  ALL BUT THREE OF THE MEN HIRED BECAME MEMBERS OF "MESA"
WITHOUT OBJECTION ON THE PART OF THE COMPANY.  FROM MAY 1934 TO MAY
1935 THE COMPANY NEGOTIATED WITH THE UNION AND THE LATTER NEVER HAD ANY
TROUBLE IN GETTING MEETINGS WITH THE MANAGEMENT.  WHEN, IN 1935, A
STRIKE WAS CALLED AS A RESULT OF THE REFUSAL OF THE SHOP COMMITTEE'S
DEMAND FOR A WAGE INCREASE, THE COMPANY CONTINUED NEGOTIATIONS DURING
THE STRIKE AND MADE AN ORAL AGREEMENT UNDER WHICH THE STRIKERS RETURNED
TO WORK.  WHEN THREE DAYS LATER THEY STRUCK AGAIN BECAUSE OF A REFUSAL
TO REINSTATE SOME OF THEIR NUMBER, ALTHOUGH A REPRESENTATIVE OF "MESA"
SAID SEVERAL OF THESE MEN MIGHT BE INCOMPETENT, THE COMPANY TOOK THE
MEN BACK AND CONTINUED TO NEGOTIATE WITH THE UNION WITH THE RESULT THAT
A DRAFT OF A CONTRACT WAS SUBMITTED BY THE SHOP COMMITTEE.  AFTER THE
COMPANY HAD INSISTED ON CERTAIN CHANGES WITH RESPECT TO DEPARTMENTAL
SENIORITY, THE DRAFT RIPENED INTO A CONTRACT JUNE 15, 1935. 

THEREAFTER THE RESPONDENT HAD HEARINGS WITH THE SHOP COMMITTEE AS TO
THE DISCHARGE OF AN EMPLOYE FOR INCOMPETENCE AND THERE IS NO SUGGESTION
THAT, BETWEEN JUNE 15TH AND AUGUST 21ST, IT FAILED TO LIVE UP TO ITS
CONTRACT IN ANY RESPECT.  REPEATED MEETINGS WERE HELD WITH THE SHOP
COMMITTEE TO DISCUSS THE TERMS OF THE CONTRACT RESPECTING DEPARTMENTAL
SENIORITY.  THE EVIDENCE OF THE MEMBERS OF THE SHOP COMMITTEE
DEMONSTRATES THAT THIS MATTER WAS FULLY DISCUSSED BEFORE THE CONTRACT
WAS EXECUTED AND THAT THE MEMBERS OF THE COMMITTEE UNDERSTOOD THE
COMPANY'S POSITION AND THE REASON FOR THE ALTERATIONS IN THE
COMMITTEE'S DRAFT.  THROUGHOUT THE SUMMER OF 1935 THE COMPANY, WHILE
ADHERING TO ITS POSITION, ATTEMPTED TO ACCOMMODATE ITS PRACTICES TO THE
DEMANDS OF THE SHOP COMMITTEE, EVIDENTLY IN ORDER TO AVOID A STRIKE. 
WHEN THE FINAL CONFERENCE OF AUGUST 19TH TOOK PLACE THE COMPANY'S
MANAGER MADE IT CLEAR TO THE COMMITTEE THAT HE DESIRED TO OPERATE THE
MACHINE SHOP WITH THE NEW MEN BELONGING IN THAT DEPARTMENT AND WHEN THE
COMMITTEE ADVISED HIM THIS WOULD NOT BE PERMITTED HE ASKED THEM TO GO
TO THE MEN AND FIND OUT WHETHER THE PROPOSED OPERATION WOULD BE
PERMITTED OR WHETHER THE PLANT WOULD HAVE TO BE SHUT DOWN.  ON AUGUST
21ST THE COMMITTEE BROUGHT BACK A REPLY TO THE EFFECT THAT THE COMPANY
COULD SHUT DOWN THE PLANT BUT COULD NOT OPERATE THE MACHINE SHOP ON THE
PRINCIPLE OF DEPARTMENTAL SENIORITY.  THE COMPANY THEN CLOSED THE PLANT
AND DID NOT OPEN IT UNTIL IT HAD EMPLOYED NEW MEN UNDER A CONTRACT WITH
ANOTHER UNION WHICH GAVE IT THE OPTION TO ENFORCE DEPARTMENTAL
SENIORITY.  SAVE FOR ONE ITEM OF EVIDENCE, THIS IS ALL THE RECORD
DISCLOSES TO INDICATE THAT THE DISCHARGE AND REPLACEMENT OF THE MEN
AROSE FROM A DISCRIMINATION AGAINST THEM FOR UNION ACTIVITIES AND THE
EXERCISE OF THE RIGHT OF COLLECTIVE BARGAINING.  MANIFESTLY IT IS NOT
ONLY INSUFFICIENT TO SUSTAIN ANY SUCH CONCLUSION BUT DEFINITELY REFUTES
IT.  THE BOARD SUPPORTS THE CONCLUSION BY REFERENCE TO THE TESTIMONY OF
TWO MEN.  ONE, NORMAN, WHO WAS, WITH THE UNION'S CONSENT, DISCHARGED
AFTER THE AGREEMENT OF JUNE 15, 1935, FOR INCOMPETENCY, TESTIFIED HE
THOUGHT HE WAS DISCHARGED AS A RESULT OF A GRUDGE.  HE SAID THAT IN
JUNE, ONE MCKIERNAN, A SHIPPING CLERK WHO WAS HIS SUPERIOR, TOLD HIM
WHEN HE COMPLAINED ABOUT HIS DISCHARGE:  "I WILL TELL YOU; THERE IS A
LOT MORE OF THIS THAN YOU AND I KNOW OF  ...  "  "I WILL GET YOU BACK
WHEN WE BREAK THIS UNION UP  ...  "  THERE IS THE FURTHER TESTIMONY OF
A WITNESS RUDD WHO SAYS THAT THE SUPERINTENDENT SAID TO HIM IN JUNE, IN
EFFECT, THAT IT WOULD BE BETTER TO HAVE THE A.F. OF L. UNION AS THEY
WERE MORE CONSERVATIVE AND NOT SO LIKELY TO STRIKE.  THIS WAS JUST
AFTER "MESA" HAD CALLED TWO STRIKES IN THE PLANT.  NEITHER OF THE MEN
WHO ARE QUOTED HELD SUCH A POSITION THAT HIS STATEMENTS ARE EVIDENCE OF
THE COMPANY'S POLICY EVEN IN JUNE, TWO MONTHS BEFORE THE DISCHARGE, AND
THE INFERENCE OF HOSTILITY TO "MESA" DRAWN FROM THEIR TESTIMONY DOES
NOT, IN ANY EVENT, AMOUNT TO A SCINTILLA WHEN CONSIDERED IN THE LIGHT
OF RESPONDENT'S LONG COURSE OF CONDUCT IN RESPECT OF UNION ACTIVITIES
AND IN DEALING FREELY AND CANDIDLY WITH "MESA." 

SECOND.  THE BOARD HELD THAT RESPONDENT VIOLATED THE OBLIGATION
IMPOSED UPON IT BY THE STATUTE TO BARGAIN COLLECTIVELY WITH
REPRESENTATIVES OF ITS EMPLOYES.  THE LEGISLATIVE HISTORY OF THE ACT
GOES FAR TO INDICATE THAT THE PURPOSE OF THE STATUTE WAS TO COMPEL
EMPLOYERS TO BARGAIN COLLECTIVELY WITH THEIR EMPLOYES TO THE END THAT
EMPLOYMENT CONTRACTS BINDING ON BOTH PARTIES SHOULD BE MADE.  FN5  BUT
WE ASSUME THAT THE ACT IMPOSES UPON THE EMPLOYER THE FURTHER OBLIGATION
TO MEET AND BARGAIN WITH HIS EMPLOYES' REPRESENTATIVES RESPECTING
PROPOSED CHANGES OF AN EXISTING CONTRACT AND ALSO TO DISCUSS WITH THEM
ITS TRUE INTERPRETATION, IF THERE IS ANY DOUBT AS TO ITS MEANING.  UPON
THIS BASIS THE RESPONDENT WAS NOT DEFICIENT IN THE PERFORMANCE OF ITS
DUTY. 

THE CONTRACT PROVIDED FOR DEPARTMENTAL SENIORITY, IN SECS. 5 AND 6,
AND SEC. 7 DID NOT CREATE ANY AMBIGUITY ON THE SUBJECT.  MOREOVER, THE
RECORD MAKES IT CLEAR THAT THE COMMITTEE WHICH NEGOTIATED THE CONTRACT
ON BEHALF OF THE UNION FULLY UNDERSTOOD ITS TERMS IN THE SAME SENSE AS
DID THE RESPONDENT.  IN THIS SITUATION HOW OFTEN AND HOW LONG WAS THE
COMPANY BOUND TO CONTINUE DISCUSSION OF THE COMMITTEE'S DEMAND THAT THE
PROVISIONS OF THE CONTRACT SHOULD BE IGNORED?  IT IS TO BE BORNE IN
MIND THAT SEC. 20 OF THE CONTRACT PROVIDED THAT IF THE COMPANY DID NOT
MEET THE COMMITTEE'S VIEWS WITHIN FORTY-EIGHT HOURS THE EMPLOYES
RESERVED FULL LIBERTY OF ACTION AND THIS MEANT THAT IF THE COMPANY DID
NOT ACCEDE TO DEMANDS A STRIKE MIGHT FOLLOW. 

WE COME THEN TO CONSIDER THE SITUATION OF THE RESPONDENT IN AUGUST
1935.  THE BOARD HAS FOUND THAT IT DESIRED TO OPERATE ITS MACHINE SHOP
IN ACCORDANCE WITH ITS HONEST UNDERSTANDING OF THE CONTRACT.  ITS
MOTIVE, WHETHER EFFICIENCY OR ECONOMY, WAS PROPER.  IT HAD STATED ITS
VIEWS TO THE COMMITTEE.  THE COMMITTEE WAS ADAMANT; ITS STAND WAS THAT
THE COMPANY COULD CLOSE ITS ENTIRE PLANT IF IT CHOSE, BUT IT COULD NOT
OPERATE THE MACHINE SHOP IN ACCORDANCE WITH THE PROVISIONS OF THE
CONTRACT.  IF IT ATTEMPTED THE LATTER ALTERNATIVE A STRIKE WAS
INEVITABLE.  THE BOARD FOUND THAT IT WAS INCONCEIVABLE THAT THE
EMPLOYES WOULD HAVE ACCEPTED THE COMPANY'S CONSTRUCTION OF THE CONTRACT
EVEN IF THEY HAD BEEN THREATENED WITH DISCHARGE AT THE TIME.  IT IS
EVIDENT THAT THE RESPONDENT REALIZED THAT IT HAD NO ALTERNATIVE BUT TO
OPERATE THE PLANT IN THE WAY THE MEN DICTATED, IN THE TEETH OF THE
AGREEMENT, OR KEEP IT CLOSED ENTIRELY, OR HAVE A STRIKE.  WHEN THE
REPRESENTATIVES OF THE TWO PARTIES SEPARATED ON AUGUST 21, NO FURTHER
NEGOTIATIONS WERE PENDING, EACH HAD REJECTED THE OTHER'S PROPOSALS, AND
THERE WERE NO ARRANGEMENTS FOR A FURTHER MEETING.  ON THE FOLLOWING
DAYS THE FACTORY WAS CLOSED. 

THE BOARD FINDS THAT, IN THIS SITUATION, THE RESPONDENT WAS UNDER AN
OBLIGATION TO SEND FOR THE SHOP COMMITTEE AND AGAIN TO REASON WITH ITS
MEMBERS OR TO WAIT UNTIL THE SITUATION BECAME SUCH THAT IT COULD
OPERATE ITS WHOLE PLANT WITHOUT ANTAGONIZING THE EMPLOYES' VIEWS WITH
RESPECT TO DEPARTMENTAL SENIORITY.  WE THINK IT WAS UNDER NO OBLIGATION
TO DO ANY OF THESE THINGS.  THERE IS NO SUGGESTION THAT THERE WAS A
REFUSAL TO BARGAIN ON AUGUST 21ST.  THERE COULD BE, THEREFORE, NO DUTY
ON EITHER SIDE TO ENTER INTO FURTHER NEGOTIATIONS FOR COLLECTIVE
BARGAINING IN THE ABSENCE OF A REQUEST THEREFOR BY THE EMPLOYES.  FN6
NO SUCH REQUEST WAS MADE PRIOR TO SEPTEMBER 4TH.  RESPONDENT RIGHTLY
UNDERSTOOD THAT THE MEN WERE IRREVOCABLY COMMITTED NOT TO WORK IN
ACCORDANCE WITH THEIR CONTRACT.  IT WAS AT LIBERTY TO TREAT THEM AS
HAVING SEVERED THEIR RELATIONS WITH THE COMPANY BECAUSE OF THEIR BREACH
AND TO CONSUMMATE THEIR SEPARATION FROM THE COMPANY'S EMPLOY BY HIRING
OTHERS TO TAKE THEIR PLACES.  THE ACT DOES NOT PROHIBIT AN EFFECTIVE
DISCHARGE FOR REPUDIATION BY THE EMPLOYE OF HIS AGREEMENT, ANY MORE
THAN IT PROHIBITS SUCH DISCHARGE FOR A TORT COMMITTED AGAINST THE
EMPLOYER.  FN7  AS THE RESPONDENT HAD LAWFULLY SECURED OTHERS TO FILL
THE PLACES OF THE FORMER EMPLOYES AND RECOGNIZED A NEW UNION, WHICH, SO
FAR AS APPEARS, REPRESENTED A MAJORITY OF ITS EMPLOYES, THE OLD UNION
AND ITS SHOP COMMITTEE WERE NO LONGER IN A POSITION ON SEPTEMBER 4TH TO
DEMAND COLLECTIVE BARGAINING ON BEHALF OF THE COMPANY'S EMPLOYES. 

IT IS URGED THAT THE COMPANY'S OFFER TO RE-EMPLOY FOUR MEN AS FOREMEN
ON THE BASIS OF GUARANTEED ANNUAL COMPENSATION, AT A LOWER HOURLY RATE
THAN HAD THERETOFORE BEEN PAID THEM, IS EVIDENCE TO SUPPORT THE BOARD'S
FINDING OF A REFUSAL TO BARGAIN COLLECTIVELY WITH THE UNION.  THE
ARGUMENT IS THAT IF THE COMPANY HAD MADE A SIMILAR OFFER TO ALL OF THE
MEN THIS MIGHT HAVE FORMED A BASIS OF COMPROMISE, SINCE ONE OF THE
EMPLOYES TO WHOM AN OFFICER TALKED INDICATED THAT THE MEN MIGHT BE
WILLING TO TAKE A CUT IN WAGES; BUT THERE IS NO EVIDENCE THAT THE
COMPANY HAD ANY THOUGHT OF OFFERING A SIMILAR CONTRACT TO OTHERS THAN
THE FOREMEN OF DEPARTMENTS, AND THE BREACH OF CONTRACT OF WHICH THE MEN
WERE GUILTY LEFT THE COMPANY UNDER NO OBLIGATION TO INITIATE
NEGOTIATIONS FOR A NEW AND DIFFERENT CONTRACT OF EMPLOYMENT WITH THEM. 

THIRD.  CERTAIN OCCURRENCES SUBSEQUENT TO AUGUST 21, 1935, ARE URGED
BY THE BOARD IN SUPPORT OF ITS FINDING THAT RESPONDENT'S DISCHARGE OF
ITS FORTY-EIGHT EMPLOYES CONSTITUTED DISCRIMINATION AGAINST THE UNION
AND FAILURE TO BARGAIN COLLECTIVELY.  THE FIRST OF THESE IS ITS
APPLICATION TO THE INTERNATIONAL ASSOCIATION FOR MEN AND ITS MAKING AN
AGREEMENT WITH THAT UNION ON AUGUST 26TH AND 27TH.  IF, AS WE HAVE
HELD, THE RESPONDENT WAS CONFRONTED WITH A CONCERTED REFUSAL ON THE
PART OF "MESA" TO PERMIT ITS MEMBERS TO PERFORM THEIR CONTRACT THERE
WAS NOTHING UNLAWFUL IN THE COMPANY'S ATTEMPTING TO PROCURE OTHERS TO
FILL THEIR PLACES.  FN8  IF THE RESPONDENT WAS AT LIBERTY TO HIRE NEW
EMPLOYES IT WAS EQUALLY AT LIBERTY TO MAKE A CONTRACT WITH A UNION FOR
THEIR SERVICES.  FN9 

THE OFFERING OF RE-EMPLOYMENT TO FOUR OF THE OLD EMPLOYES, UPON A NEW
AND DIFFERENT BASIS, IS SAID TO CONSTITUTE DISCRIMINATION AGAINST
"MESA," BUT THE ANSWER IS THAT IF THE WHOLE BODY OF EMPLOYES HAD BEEN
LAWFULLY DISCHARGED THE LAW DOES NOT PROHIBIT THE MAKING OF INDIVIDUAL
CONTRACTS WITH MEN WHOSE PRIOR RELATIONS HAD THEREBY BEEN SEVERED. 
FN10 

FOURTH.  THE BOARD FOUND AS A FACT THAT IN OFFERING REEMPLOYMENT TO
TWO OF ITS OLD MEN THE RESPONDENT STIPULATED AS A CONDITION THAT THEY
JOIN THE INTERNATIONAL UNION.  THE FINDING IS SHARPLY CHALLENGED BUT,
AS THERE IS EVIDENCE IN SUPPORT OF IT, WE ACCEPT IT.  BASED UPON THIS
FINDING THE BOARD CONTENDS THIS STIPULATION IN CONNECTION WITH THE
OFFER TO HIRE THE MEN WAS A VIOLATION OF SEC. 8(3) OF THE ACT
INDEPENDENT OF ANY OF THE VIOLATIONS FLOWING OUT OF THE DISCHARGE AND
REFUSAL TO RE-EMPLOY THE MEN AS A BODY.  THE CONTENTION IS IRRELEVANT
TO ANY ISSUE IN THE CAUSE.  THE COMPLAINT ALLEGES THAT THE DISCHARGE OF
THE MEN CONSTITUTED AN UNFAIR LABOR PRACTICE IN VIOLATION OF SEC. 8(1)
AND (3) AND THAT THE EXECUTION OF THE AGREEMENT WITH THE INTERNATIONAL
ASSOCIATION CONSTITUTED AN UNFAIR LABOR PRACTICE UNDER SEC. 8(5).  IT
NOWHERE REFERS TO ANY DISCRIMINATION IN HIRING ANY MAN OR MEN OR
CHARGES ANY VIOLATION IN CONNECTION THEREWITH. 

THE DECREE IS AFFIRMED. 

FN1  96 F.2D 721. 

FN2  SEE JEFFERY-DEWITT INSULATOR CO. V. NATIONAL LABOR RELATIONS
BOARD, 91 F.2D 134. 

FN3  ACT OF JULY 5, 1935, C. 372, 49 STAT. 449, 452; U.S.C. SUPP.
III, TIT. 29, SEC. 158. 

FN4  1 N.L.R.B. 546. 

FN5  REPORT NO. 573 OF SENATE COMMITTEE ON EDUCATION AND LABOR, 74TH
CONG., 1ST SESS., P. 12. 

FN6  COMPARE NATIONAL LABOR RELATIONS BOARD V. COLUMBIAN ENAMELING &
STAMPING CO., ANTE, P. 292, 298-299. 

FN7  COMPARE NATIONAL LABOR RELATIONS BOARD V. FANSTEEL METALLURGICAL
CORP., ANTE, P. 240, 254FF. 

FN8  COMPARE NATIONAL LABOR RELATIONS BOARD V. MACKAY RADIO &
TELEGRAPH CO., 304 U.S. 333, 345. 

FN9  COMPARE CONSOLIDATED EDISON CO. V. NATIONAL LABOR RELATIONS
BOARD, 305 U.S. 197, 236-237. 

FN10 COMPARE NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1, 44, 45; NATIONAL LABOR RELATIONS BOARD V. FANSTEEL
CORP., ANTE, P. 240, 259. 

MR. JUSTICE BLACK AND MR. JUSTICE REED DISSENT. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :






MILK BOARD V. EISENBERG CO., 306 U.S. 346 


NO. 426.  ARGUED FEBRUARY 8, 1939.  - DECIDED FEBRUARY 27, 1939.  - 332
PA. 34 - 200 A. 854, REVERSED. 


A STATE STATUTE REGULATING THE MILK INDUSTRY, WHICH REQUIRES DEALERS
TO OBTAIN LICENSES; TO FILE BONDS CONDITIONED ON PAYMENT OF PURCHASES
FROM PRODUCERS; AND TO PAY PRODUCERS AT LEAST THE MINIMUM PRICES
PRESCRIBED BY AN ADMINISTRATIVE AGENCY,  - HELD NOT VIOLATIVE OF THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION, AS APPLIED TO A DEALER
WHO, AT A RECEIVING STATION MAINTAINED BY HIM WITHIN THE STATE,
PURCHASES MILK FROM NEIGHBORING FARMS, ALL OF WHICH HE SHIPS TO ANOTHER
STATE FOR SALE.  P. 352. 

THE OBVIOUS PURPOSE OF THE ACT WAS TO CONTROL A DOMESTIC SITUATION IN
THE INTEREST OF THE PRODUCERS AND CONSUMERS WITHIN THE STATE.  BECAUSE
OF THE COMPARATIVELY SMALL AMOUNT OF THE STATE'S TOTAL MILK PRODUCTION
WHICH WAS EXPORTED, THE EFFECT OF THE ACT ON INTERSTATE COMMERCE WAS
INCIDENTAL.  IN THE ABSENCE OF REGULATION BY CONGRESS, THE ACT DID NOT
CONSTITUTE A PROHIBITED BURDEN ON INTERSTATE COMMERCE. 

MILK CONTROL BOARD V. EISENBERG FARM PRODUCTS. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

CERTIORARI, 305 U.S. 589, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING A BILL TO ENFORCE COMPLIANCE WITH A STATE MILK CONTROL LAW. 

IF THE DECISION OF THE COURT BELOW IS THE LAW OF THE LAND, THE
STABILIZATION OF THE MILK INDUSTRY OF THE UNITED STATES BY MEANS OF
MILK CONTROL LEGISLATION, AND ALL COMMERCE IN MILK, WILL BE GREATLY
HINDERED.  AT LEAST TWENTY STATES (PRACTICALLY ALL THE DAIRY STATES)
TODAY HAVE UPON THEIR STATUTE BOOKS LEGISLATION OF THE KIND THAT IS
INVOLVED IN THIS CASE.  MILK DEALERS IN ANY STATE MAY EVADE ALL
REGULATION BY SIMPLY PURCHASING THEIR MILK AT PLANTS WHICH THEY ERECT
IN OTHER STATES, THUS CREATING AN AREA WITHOUT LAW, TO THE DETRIMENT OF
DAIRY FARMERS, OTHER DEALERS AND THE CONSUMING PUBLIC. 

IT IS A MATTER OF COMMON KNOWLEDGE THAT MILK DEALERS WITH NO ASSETS
IN THE STATE, BUY THEIR MILK ON CREDIT; IF REQUIRED TO POST NEITHER
LICENSE NOR BOND THEY WOULD INDEED HAVE THE FARMERS "AT THEIR MERCY." 
ROHRER V. MILK CONTROL BOARD, 322 PA. 257, 265. 

ONLY A SMALL AMOUNT OF THE MILK PRODUCED IN PENNSYLVANIA IS SHIPPED
TO OTHER STATES; YET IT IS COMMON KNOWLEDGE THAT THE MALPRACTICES OF A
MINORITY CAN DISRUPT AN ENTIRE INDUSTRY.  IT IS IMPOSSIBLE TO MAINTAIN
FAIR DEALINGS IN AN INDUSTRY WITHIN A STATE FOR THE BENEFIT OF THE
INHABITANTS OF THE STATE, IF HERE AND THERE A MILK DEALER CAN CREATE AN
AREA WITHOUT LAW MERELY BECAUSE HE ULTIMATELY RESELLS THE MILK IN SOME
OTHER STATE.  (NO ATTEMPT HAS BEEN MADE TO APPLY THE PRESENT STATUTE TO
ANY RESALES BY THE DEFENDANT.) 

A STATE CAN NOT, UNDER THE GUISE OF STABILIZING THE MILK INDUSTRY,
DIRECTLY BURDEN OR REGULATE MILK SHIPPED IN INTERSTATE COMMERCE.  LEMKE
V. FARMERS GRAIN CO., 258 U.S. 50. 

THE COST OF THE MILK TO RESPONDENT WILL BE INCREASED BY THE PREMIUM
ON THE BOND, BY THE LICENSE FEE, AND BY THE INCREASE IN PRICE ORDERED
BY THE COMMISSION.  THE EFFECT OF SUCH REGULATION AND SUCH PRICE FIXING
WOULD BE EXACTLY EQUIVALENT TO THE IMPOSITION OF A TAX ON THE EXPORT OF
MILK. 

THE STATUTE MAY NOT BE INTERPRETED AS AN INSPECTION LAW, IN VIEW OF
THE SEPARATE AND DISTINCT INSPECTION LAWS PASSED BY THE COMMONWEALTH. 

THE LICENSE AND BOND REQUIREMENTS WOULD, IN THE LANGUAGE OF BALDWIN
V. SEELIG, 294 U.S. 511, INDIRECTLY REGULATE THE PRICES TO BE PAID TO
PRODUCERS OF COMMODITIES IN INTERSTATE COMMERCE.  SINCE THE BUYING AS
WELL AS THE SHIPPING OF MILK FROM PENNSYLVANIA TO NEW YORK CONSTITUTES
INTERSTATE COMMERCE, THE COMMONWEALTH CAN NOT REGULATE INCIDENTS
PERTAINING TO THE BUYING OF MILK IN PENNSYLVANIA, AS IT, BY
INDIRECTION, WOULD AFFECT THE ENTIRE TRANSACTION.  SEE PENNSYLVANIA
RAILROAD CO. V. CLARK COAL CO., 238 U.S. 456; TALBOT V. SMITH, 277 S.W.
257; COMMUNITY NATURAL GAS CO. V. ROYSE CITY, 7 F.SUPP.  481. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON TO DETERMINE WHETHER A LOCAL POLICE REGULATION
UNCONSTITUTIONALLY REGULATES OR BURDENS INTERSTATE COMMERCE. 

PENNSYLVANIA, BY AN ACT OF APRIL 30, 1935 FN1  HAS DECLARED THE MILK
INDUSTRY IN THAT COMMONWEALTH TO BE A BUSINESS AFFECTED WITH A PUBLIC
INTEREST.  THE STATUTE DEFINES A MILK DEALER AS ANY PERSON "WHO
PURCHASES OR HANDLES MILK WITHIN THE COMMONWEALTH FOR SALE, SHIPMENT,
STORAGE, PROCESSING OR MANUFACTURE WITHIN OR WITHOUT THE
COMMONWEALTH."  IT CREATES A MILK CONTROL BOARD WITH AUTHORITY TO
INVESTIGATE, SUPERVISE, AND REGULATE THE INDUSTRY AND IMPOSES PENALTIES
FOR VIOLATIONS OF THE LAW OR OF THE BOARD'S ORDERS ISSUED PURSUANT TO
THE LAW, AND REQUIRES A DEALER TO OBTAIN A LICENSE BY APPLICATION TO
THE BOARD.  LICENSES MAY BE REFUSED, SUSPENDED, OR REVOKED FOR
SPECIFIED CAUSES.  A REQUISITE OF OBTAINING A LICENSE IS THAT THE
DEALER SHALL FILE WITH THE BOARD A BOND CONDITIONED FOR THE PROMPT
PAYMENT OF ALL AMOUNTS DUE TO PRODUCERS FOR MILK PURCHASED BY THE
LICENSEE.  THE ACT EMPOWERS THE BOARD TO REQUIRE THE DEALER TO KEEP
CERTAIN RECORDS AND DIRECTS THE BOARD, WITH THE APPROVAL OF THE
GOVERNOR, TO "FIX, BY OFFICIAL ORDER, THE MINIMUM PRICES TO BE PAID BY
MILK DEALERS TO PRODUCERS AND OTHERS FOR MILK."  THE BOARD MAY VARY THE
PRICE ACCORDING TO THE PRODUCTION, USE, FORM, GRADE OR CLASS OF MILK. 
FN2 

THE PETITIONER, THE MILK CONTROL BOARD, FILED ITS BILL IN A COMMON
PLEAS COURT TO RESTRAIN THE APPELLEE FROM CONTINUING TO DO BUSINESS
WITHOUT COMPLYING WITH THE STATUTE.  THE RESPONDENT BY ITS ANSWER
SOUGHT TO JUSTIFY FAILURE TO COMPLY ON THE GROUND THAT IT WAS ENGAGED
IN INTERSTATE COMMERCE.  AFTER TRIAL THE COURT DISMISSED THE BILL.  THE
SUPREME COURT OF PENNSYLVANIA AFFIRMED THE DECREE.  FN3 

THE RESPONDENT, A PENNSYLVANIA CORPORATION, LEASES AND OPERATES A
MILK RECEIVING PLANT IN ELIZABETHVILLE, PENNSYLVANIA, AT WHICH IT BUYS
MILK FROM APPROXIMATELY ONE HUNDRED AND SEVENTY-FIVE FARMERS IN THE
NEIGHBORHOOD, WHO BRING THEIR MILK TO THE PLANT IN THEIR OWN CANS. 
THERE THE MILK IS WEIGHED AND TESTED BY THE RESPONDENT AND EMPTIED INTO
LARGE RECEIVING TANKS IN WHICH IT IS COOLED PREPARATORY TO SHIPMENT. 
THIS REQUIRES RETENTION OF THE MILK FOR LESS THAN TWENTY-FOUR HOURS; IT
IS NOT PROCESSED, AND NO CHANGE OCCURS IN ITS CONSTITUENT ELEMENTS. 
THE MILK IS THEN DRAWN FROM THE COOLING TANKS INTO TANK TRUCKS OPERATED
BY A CONTRACT CARRIER AND TRANSPORTED INTO NEW YORK CITY FOR SALE THERE
BY THE RESPONDENT.  THE JOURNEY IS CONTINUOUS FROM ELIZABETHVILLE TO
NEW YORK CITY.  ALL MILK PURCHASED BY THE RESPONDENT AT ELIZABETHVILLE
IS SHIPPED TO AND SOLD IN NEW YORK.  DURING THE YEAR 1934 APPROXIMATELY
4,500,000,000 POUNDS OF MILK WERE PRODUCED IN PENNSYLVANIA OF WHICH
APPROXIMATELY 470,000,000 POUNDS WERE SHIPPED OUT OF THE STATE. 

THE RESPONDENT CONTENDS THAT THE ACT, IF CONSTRUED TO REQUIRE IT TO
OBTAIN A LICENSE, TO FILE A BOND FOR THE PROTECTION OF PRODUCERS, AND
TO PAY THE FARMERS THE PRICES PRESCRIBED BY THE BOARD,
UNCONSTITUTIONALLY REGULATES AND BURDENS INTERSTATE COMMERCE.  THE
STATE SUPREME COURT HAS HELD THAT THE STATUTE IS A VALID POLICE
REGULATION.  FN4  THE PETITIONER CONCEDES THAT THE PURCHASE, SHIPMENT
INTO ANOTHER STATE, AND SALE THERE OF THE MILK IN WHICH THE RESPONDENT
DEALS IS INTERSTATE COMMERCE.  THE QUESTION FOR DECISION IS WHETHER, IN
THE ABSENCE OF FEDERAL REGULATION, THE ENFORCEMENT OF THE STATUTE IS
PROHIBITED BY ARTICLE I, SEC. 8 OF THE CONSTITUTION.  WE HOLD THAT IT
IS NOT. 

WHEN THE PEOPLE DECLARED "THE CONGRESS SHALL HAVE POWER  ...  TO
REGULATE COMMERCE  ...  AMONG THE SEVERAL STATES,  ...  " THEIR PURPOSE
WAS CLEAR.  THE UNITED STATES COULD NOT EXIST AS A NATION IF EACH OF
THEM WERE TO HAVE THE POWER TO FORBID IMPORTS FROM ANOTHER STATE, TO
SANCTION THE RIGHTS OF CITIZENS TO TRANSPORT THEIR GOODS INTERSTATE, OR
TO DISCRIMINATE AS BETWEEN NEIGHBORING STATES IN ADMITTING ARTICLES
PRODUCED THEREIN.  THE GRANT OF THE POWER OF REGULATION TO THE CONGRESS
NECESSARILY IMPLIES THE SUBORDINATION OF THE STATES TO THAT POWER. 
THIS COURT HAS REPEATEDLY DECLARED THAT THE GRANT ESTABLISHED THE
IMMUNITY OF INTERSTATE COMMERCE FROM THE CONTROL OF THE STATES
RESPECTING ALL THOSE SUBJECTS EMBRACED WITHIN THE GRANT WHICH ARE OF
SUCH A NATURE AS TO DEMAND THAT, IF REGULATED AT ALL, THEIR REGULATION
MUST BE PRESCRIBED BY A SINGLE AUTHORITY.  FN5  BUT IN MATTERS
REQUIRING DIVERSITY OF TREATMENT ACCORDING TO THE SPECIAL REQUIREMENTS
OF LOCAL CONDITIONS, THE STATES REMAIN FREE TO ACT WITHIN THEIR
RESPECTIVE JURISDICTIONS UNTIL CONGRESS SEES FIT TO ACT IN THE EXERCISE
OF ITS OVERRIDING AUTHORITY.  FN6 ONE OF THE COMMONEST FORMS OF STATE
ACTION IS THE EXERCISE OF THE POLICE POWER DIRECTED TO THE CONTROL OF
LOCAL CONDITIONS AND EXERTED IN THE INTEREST OF THE WELFARE OF THE
STATE'S CITIZENS.  EVERY STATE POLICE STATUTE NECESSARILY WILL AFFECT
INTERSTATE COMMERCE IN SOME DEGREE, BUT SUCH A STATUTE DOES NOT RUN
COUNTER TO THE GRANT OF CONGRESSIONAL POWER MERELY BECAUSE IT
INCIDENTALLY OR INDIRECTLY INVOLVES OR BURDENS INTERSTATE COMMERCE. 
THIS IS SO EVEN THOUGH, SHOULD CONGRESS DETERMINE TO EXERCISE ITS
PARAMOUNT POWER, THE STATE LAW MIGHT THEREBY BE RESTRICTED IN OPERATION
OR RENDERED UNENFORCEABLE.  FN7  THESE PRINCIPLES HAVE GUIDED JUDICIAL
DECISION FOR MORE THAN A CENTURY.  CLEARLY THEY NOT ONLY ARE INEVITABLE
COROLLARIES OF THE CONSTITUTIONAL PROVISION, BUT THEIR UNIMPAIRED
ENFORCEMENT IS OF THE HIGHEST IMPORTANCE TO THE CONTINUED EXISTENCE OF
OUR DUAL FORM OF GOVERNMENT.  THE DIFFICULTY ARISES NOT IN THEIR
STATEMENT OR IN A READY ASSENT TO THEIR PROPRIETY, BUT IN THEIR
APPLICATION IN CONNECTION WITH THE MYRIAD VARIATIONS IN THE METHODS AND
INCIDENTS OF COMMERCIAL INTERCOURSE. 

THE PURPOSE OF THE STATUTE UNDER REVIEW OBVIOUSLY IS TO REACH A
DOMESTIC SITUATION IN THE INTEREST OF THE WELFARE OF THE PRODUCERS AND
CONSUMERS OF MILK IN PENNSYLVANIA.  ITS PROVISIONS WITH RESPECT TO
LICENSE, BOND, AND REGULATION OF PRICES TO BE PAID TO PRODUCERS ARE
APPROPRIATE MEANS TO THE ENDS IN VIEW.  THE QUESTION IS WHETHER THE
PRESCRIPTION OF PRICES TO BE PAID PRODUCERS IN THE EFFORT TO ACCOMPLISH
THESE ENDS CONSTITUTES A PROHIBITED BURDEN ON INTERSTATE COMMERCE, OR
AN INCIDENTAL BURDEN WHICH IS PERMISSIBLE UNTIL SUPERSEDED BY
CONGRESSIONAL ENACTMENT.  THAT QUESTION CAN BE ANSWERED ONLY BY
WEIGHING THE NATURE OF THE RESPONDENT'S ACTIVITIES, AND THE PROPRIETY
OF LOCAL REGULATION OF THEM, AS DISCLOSED BY THE RECORD. 

THE RESPONDENT MAINTAINS A RECEIVING STATION IN PENNSYLVANIA WHERE IT
CONDUCTS THE LOCAL BUSINESS OF BUYING MILK.  AT THAT STATION THE
NEIGHBORING FARMERS DELIVER THEIR MILK.  THE ACTIVITY AFFECTED BY THE
REGULATION IS ESSENTIALLY LOCAL IN PENNSYLVANIA.  UPON THE COMPLETION
OF THAT TRANSACTION THE RESPONDENT ENGAGES IN CONSERVING AND
TRANSPORTING ITS OWN PROPERTY.  THE COMMONWEALTH DOES NOT ESSAY TO
REGULATE OR TO RESTRAIN THE SHIPMENT OF THE RESPONDENT'S MILK INTO NEW
YORK OR TO REGULATE ITS SALE OR THE PRICE AT WHICH RESPONDENT MAY SELL
IT IN NEW YORK.  IF DEALERS CONDUCTING RECEIVING STATIONS IN VARIOUS
LOCALITIES IN PENNSYLVANIA WERE FREE TO IGNORE THE REQUIREMENTS OF THE
STATUTE ON THE GROUND THAT ALL OR A PART OF THE MILK THEY PURCHASE IS
DESTINED TO ANOTHER STATE THE UNIFORM OPERATION OF THE STATUTE LOCALLY
WOULD BE CRIPPLED AND MIGHT BE IMPRACTICABLE.  ONLY A SMALL FRACTION OF
THE MILK PRODUCED BY FARMERS IN PENNSYLVANIA IS SHIPPED OUT OF THE
COMMONWEALTH.  THERE IS, THEREFORE, A COMPARATIVELY LARGE FIELD
REMOTELY AFFECTING AND WHOLLY UNRELATED TO INTERSTATE COMMERCE WITHIN
WHICH THE STATUTE OPERATES.  THESE CONSIDERATIONS WE THINK JUSTIFY THE
CONCLUSION THAT THE EFFECT OF THE LAW ON INTERSTATE COMMERCE IS
INCIDENTAL AND NOT FORBIDDEN BY THE CONSTITUTION, IN THE ABSENCE OF
REGULATION BY CONGRESS. 

NONE OF THE DECISIONS ON WHICH THE COURT BELOW AND THE RESPONDENT
RELY RULES THE INSTANT CASE.  DISANTO V. PENNSYLVANIA, 273 U.S. 34,
INVOLVED A STATE LAW DIRECTED SOLELY AT FOREIGN COMMERCE; LEMKE V.
FARMERS GRAIN CO., 258 U.S. 50, CONDEMNED A STATE STATUTE AFFECTING
COMMERCE, OVER NINETY PER CENT. OF WHICH WAS INTERSTATE AND ESSAYING TO
REGULATE THE PRICE OF COMMODITIES SOLD WITHIN THE STATE PAYABLE AND
RECEIVABLE IN THE STATE OF DESTINATION; SHAFER V. FARMERS GRAIN CO.,
268 U.S. 189, ALSO DEALT WITH A STATE LAW INTENDED TO REGULATE COMMERCE
ALMOST WHOLLY INTERSTATE IN CHARACTER.  IN BALDWIN V. SEELIG, 294 U.S.
511, THIS COURT CONDEMNED AN ENACTMENT AIMED SOLELY AT INTERSTATE
COMMERCE ATTEMPTING TO AFFECT AND REGULATE THE PRICE TO BE PAID FOR
MILK IN A SISTER STATE, AND WE INDICATED THAT THE ATTEMPT AMOUNTED IN
EFFECT TO A TARIFF BARRIER SET UP AGAINST MILK IMPORTED INTO THE
ENACTING STATE. 

THE DECREE MUST BE REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  P.L. 96; 31 P.S. SEC. 684. 

FN2 THE ACT WAS REPEALED BY AN ACT OF APRIL 28, 1937, P.L. 417, BUT
ALL PROCEEDINGS UNDER IT WERE SAVED BY SEC. 1203 OF THE LATER ACT.  SEE
COMMONWEALTH V. ORTWEIN, 132 PA. SUPERIOR CT. 166; 200 ATL. 859. 

FN3  332 PA. 34; 200 ATL. 854. 

FN4  SEE THE OPINION BELOW, AND COLTERYAHN SANITARY DAIRY V. MILK
CONTROL COMM'N, 332 PA. 15; 1 ATL.2D, 775; KEYSTONE DAIRY CO. V. MILK
CONTROL COMM'N, 332 PA. 15; 1 ATL.2D 775; ROHRER V. MILK CONTROL BOARD,
322 PA. 257; 186 ATL. 336. 

FN5  MINNESOTA RATE CASES, 230 U.S. 352, 399, AND CASES CITED. 

FN6  IBID. 

FN7  IBID., PP. 402-403. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER ARE OF OPINION THAT THE
SUPREME COURT OF PENNSYLVANIA PROPERLY CONCLUDED THAT UNDER FORMER
OPINIONS OF THIS COURT THE QUESTIONED REGULATIONS CONSTITUTED A BURDEN
UPON INTERSTATE COMMERCE PROHIBITED BY THE FEDERAL CONSTITUTION. 
..END :






PIERRE V. LOUISIANA, 306 U.S. 354 


NO. 142.  ARGUED FEBRUARY 3, 6, 1939.  - DECIDED FEBRUARY 27, 1939.  -
189 LA. 764 - 180 SO. 630, REVERSED. 


1.  WHEN THE JURY COMMISSIONERS OF A STATE COURT INTENTIONALLY AND
SYSTEMATICALLY EXCLUDE NEGROES FROM AMONG THE PERSONS SUMMONED AND
LISTED FOR JURY SERVICE, AN INDICTMENT FOR MURDER, RETURNED AGAINST A
NEGRO BY A GRAND JURY DRAWN OR SELECTED FROM SUCH LISTS, IS VOID UNDER
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 357. 

2.  IN DETERMINING WHETHER, AS MATTER OF FACT, SUCH DISCRIMINATION
EXISTED IN THIS CASE, THE FINDINGS AND CONCLUSIONS OF THE STATE SUPREME
COURT, THOUGH ENTITLED TO GREAT RESPECT, ARE NOT BINDING ON THIS
COURT.  P. 358. 

PIERRE V. LOUISIANA. 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA. 

CERTIORARI, 305 U.S. 586, TO REVIEW A JUDGMENT AFFIRMING A SENTENCE
OF DEATH. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

INDICTED FOR MURDER, PETITIONER, A MEMBER OF THE NEGRO RACE, WAS
CONVICTED AND SENTENCED TO DEATH IN A STATE COURT OF THE PARISH OF ST.
JOHN THE BAPTIST, LOUISIANA.  THE LOUISIANA SUPREME COURT AFFIRMED. 
FN1  HIS PETITION FOR CERTIORARI TO REVIEW THE LOUISIANA SUPREME
COURT'S JUDGMENT RESTED UPON THE GRAVE CLAIM - EARNESTLY, BUT
UNSUCCESSFULLY URGED IN BOTH STATE COURTS - THAT BECAUSE OF HIS RACE HE
HAD NOT BEEN ACCORDED THE EQUAL PROTECTION OF THE LAWS GUARANTEED TO
ALL RACES IN ALL THE STATES BY THE FOURTEENTH AMENDMENT TO THE FEDERAL
CONSTITUTION.  FOR THIS REASON, WE GRANTED CERTIORARI.  FN2 

THE INDICTMENT AGAINST PETITIONER WAS RETURNED JANUARY 18, 1937.  HE
MADE TIMELY MOTION TO QUASH THE INDICTMENT AND THE GENERAL VENIRE FROM
WHICH HAD BEEN DRAWN BOTH THE GRAND JURY THAT RETURNED THE INDICTMENT
AND THE PETIT JURY FOR THE WEEK OF HIS TRIAL.  HIS MOTION ALSO PRAYED
THAT THE GRAND JURY PANEL AND THE PETIT JURY PANEL BE QUASHED.  THIS
SWORN MOTION ALLEGED THAT PETITIONER WAS A NEGRO AND HAD BEEN INDICTED
FOR MURDER OF A WHITE MAN; THAT AT LEAST ONE-THIRD OF THE POPULATION OF
THE PARISH FROM WHICH THE GRAND AND PETIT JURIES WERE DRAWN WERE
MEMBERS OF THE NEGRO RACE, BUT THE GENERAL VENIRE HAD CONTAINED NO
NAMES OF NEGROES WHEN THE GRAND JURY THAT INDICTED PETITIONER WAS
DRAWN; THAT THE STATE OFFICERS CHARGED BY LAW WITH THE DUTY OF
PROVIDING NAMES FOR THE GENERAL VENIRE HAD "DELIBERATELY EXCLUDED
THEREFROM THE NAMES OF ANY NEGROES QUALIFIED TO SERVE AS GRAND OR PETIT
JURORS,  ...  " AND HAD "SYSTEMATICALLY, UNLAWFULLY AND
UNCONSTITUTIONALLY EXCLUDED NEGROES FROM THE GRAND OR PETIT JURY IN
SAID PARISH" FOR AT LEAST TWENTY YEARS "SOLELY AND ONLY BECAUSE OF
THEIR RACE AND COLOR"; AND THAT PETITIONER HAD THUS BEEN DENIED THE
EQUAL PROTECTION OF THE LAWS GUARANTEED HIM BY THE CONSTITUTION OF
LOUISIANA AND THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES. 

NO PLEADINGS DENYING THESE ALLEGATIONS APPEAR IN THE RECORD, AND THE
STATE OFFERED NO WITNESSES ON THE MOTION.  PETITIONER OFFERED TWELVE
WITNESSES WHO WERE QUESTIONED BY HIS COUNSEL, THE STATE'S ASSISTANT
DISTRICT ATTORNEY, AND THE COURT.  ON THE BASIS OF THIS EVIDENCE, THE
TRIAL JUDGE SUSTAINED THE MOTION TO QUASH THE PETIT JURY PANEL AND
VENIRE AND SUBSEQUENTLY ORDERED THE BOX CONTAINING THE GENERAL VENIRE
(FROM WHICH BOTH GRAND AND PETIT JURIES HAD BEEN DRAWN) EMPTIED, PURGED
AND REFILLED.  THIS WAS DONE; A NEW PETIT JURY PANEL COMPOSED OF BOTH
WHITES AND NEGROES WAS SUBSEQUENTLY DRAWN FROM THE REFILLED JURY BOX
AND FROM THIS PANEL A PETIT JURY WAS SELECTED WHICH TRIED AND CONVICTED
PETITIONER.  ALTHOUGH THE GRAND JURY THAT INDICTED PETITIONER AND THE
QUASHED PETIT JURY PANEL HAD BEEN SELECTED FROM THE SAME ORIGINAL
GENERAL VENIRE  FN3  THE TRIAL JUDGE OVERRULED THAT PART OF
PETITIONER'S MOTION SEEKING TO QUASH THE GRAND JURY PANEL AND THE
INDICTMENT. 

FIRST.  THE REASON ASSIGNED BY THE TRIAL JUDGE FOR REFUSING TO QUASH
THE GRAND JURY PANEL AND INDICTMENT WAS THAT "THE CONSTITUTIONAL RIGHTS
OF THE DEFENDANT (ARE)  ...  NOT AFFECTED BY REASON OF THE FACT THAT
PERSONS OF THE COLORED OR AFRICAN RACE ARE NOT PLACED ON THE GRAND
JURY, BECAUSE ...  THE MERE PRESENTMENT OF AN INDICTMENT IS NOT
EVIDENCE OF GUILT  ...  IT SIMPLY INFORMS THE COURT OF A COMMISSION OF
A CRIME AND BRINGS THE ACCUSED BEFORE THE COURT FOR PROSECUTION."  BUT
THE BILL OF RIGHTS OF THE LOUISIANA CONSTITUTION (DART, 1932, ART. 1,
SEC. 9) PROVIDES THAT "NO PERSON SHALL BE HELD TO ANSWER FOR CAPITAL
CRIME UNLESS ON A PRESENTMENT OR INDICTMENT BY A GRAND JURY,  ...  "
AND THE STATE CONCEDES HERE, AS THE SUPREME COURT OF LOUISIANA POINTED
OUT IN ITS OPINION IN THIS CASE, THAT "  ...  IT IS SPECIALLY PROVIDED
IN THE (LOUISIANA) LAW PRESCRIBING THE METHOD OF DRAWING GRAND AND
PETIT JURORS TO SERVE IN BOTH CIVIL AND CRIMINAL CASES THAT 'THERE
SHALL BE NO DISTINCTION MADE ON ACCOUNT OF RACE, COLOR OR PREVIOUS
CONDITION,'" AND "IF ... (QUALIFIED) MEMBERS OF THE NEGRO  ...  RACE
...  HAVE BEEN SYSTEMATICALLY EXCLUDED FROM  ... SERVICE IN THE PARISH
OF ST. JOHN,  ...  SOLELY BECAUSE OF THEIR RACE OR COLOR, THE
INDICTMENT SHOULD HAVE BEEN QUASHED  ...  "  EXCLUSION FROM GRAND OR
PETIT JURY SERVICE ON ACCOUNT OF RACE IS FORBIDDEN BY THE FOURTEENTH
AMENDMENT.  FN4  IN ADDITION TO THE SAFEGUARDS OF THE FOURTEENTH
AMENDMENT, CONGRESS HAS PROVIDED THAT "NO CITIZEN POSSESSING ALL OTHER
QUALIFICATIONS  ...  SHALL BE DISQUALIFIED FOR SERVICE AS GRAND OR
PETIT JUROR IN ANY COURT OF THE UNITED STATES, OR OF ANY STATE ON
ACCOUNT OF RACE, COLOR OR PREVIOUS CONDITION OF SERVITUDE; ...  "  FN5
PETITIONER DOES NOT HERE CONTEND THAT LOUISIANA LAWS REQUIRED AN
UNCONSTITUTIONAL EXCLUSION OF NEGROES FROM THE GRAND JURY WHICH
INDICTED HIM.  HIS EVIDENCE WAS OFFERED TO SHOW THAT LOUISIANA - ACTING
THROUGH ITS ADMINISTRATIVE OFFICERS - HAD DELIBERATELY AND
SYSTEMATICALLY EXCLUDED NEGROES FROM JURY SERVICE BECAUSE OF RACE, IN
VIOLATION OF THE LAWS AND CONSTITUTIONS OF LOUISIANA AND THE UNITED
STATES.  FN6 

IF PETITIONER'S EVIDENCE OF SUCH SYSTEMATIC EXCLUSION OF NEGROES FROM
THE GENERAL VENIRE WAS SUFFICIENT TO SUPPORT THE TRIAL COURT'S ACTION
IN QUASHING THE PETIT JURY DRAWN FROM THAT GENERAL VENIRE, IT
NECESSARILY FOLLOWS THAT THE INDICTMENT RETURNED BY A GRAND JURY,
SELECTED FROM THE SAME GENERAL VENIRE, SHOULD ALSO HAVE BEEN QUASHED. 

SECOND.  BUT THE STATE INSISTS, AND THE LOUISIANA SUPREME COURT HELD
(THE CHIEF JUSTICE DISSENTING), THAT THIS EVIDENCE FAILED TO ESTABLISH
THAT MEMBERS OF THE NEGRO RACE WERE EXCLUDED FROM THE GRAND JURY VENIRE
ON ACCOUNT OF RACE, AND THAT THE TRIAL COURT'S FINDING OF
DISCRIMINATION WAS ERRONEOUS.  OUR DECISION AND JUDGMENT MUST THEREFORE
TURN UPON THESE DISPUTED QUESTIONS OF FACT.  IN OUR CONSIDERATION OF
THE FACTS THE CONCLUSIONS REACHED BY THE SUPREME COURT OF LOUISIANA ARE
ENTITLED TO GREAT RESPECT.  YET, WHEN A CLAIM IS PROPERLY ASSERTED - AS
IN THIS CASE - THAT A CITIZEN WHOSE LIFE IS AT STAKE HAS BEEN DENIED
THE EQUAL PROTECTION OF HIS COUNTRY'S LAWS ON ACCOUNT OF HIS RACE, IT
BECOMES OUR SOLEMN DUTY TO MAKE INDEPENDENT INQUIRY AND DETERMINATION
OF THE DISPUTED FACTS FN7  - FOR EQUAL PROTECTION TO ALL IS THE BASIC
PRINCIPLE UPON WHICH JUSTICE UNDER LAW RESTS.  INDICTMENT BY GRAND JURY
AND TRIAL BY JURY CEASE TO HARMONIZE WITH OUR TRADITIONAL CONCEPTS OF
JUSTICE AT THE VERY MOMENT PARTICULAR GROUPS, CLASSES OR RACES -
OTHERWISE QUALIFIED TO SERVE AS JURORS IN A COMMUNITY - ARE EXCLUDED AS
SUCH FROM JURY SERVICE.  FN8  THE FOURTEENTH AMENDMENT INTRUSTS THOSE
WHO BECAUSE OF RACE ARE DENIED EQUAL PROTECTION OF THE LAWS IN A STATE
FIRST "TO THE REVISORY POWER OF THE HIGHER COURTS OF THE STATE, AND
ULTIMATELY TO THE REVIEW OF THIS COURT."  FN9 

PETITIONER'S WITNESSES ON THE MOTION WERE THE CLERK OF THE COURT - EX
OFFICIO A MEMBER OF THE JURY COMMISSION; THE SHERIFF OF THE PARISH; THE
SUPERINTENDENT OF SCHOOLS WHO HAD SERVED THE PARISH FOR ELEVEN YEARS;
AND OTHER RESIDENTS OF THE PARISH, BOTH WHITE AND COLORED.  THE
TESTIMONY OF PETITIONER'S WITNESSES (THE STATE OFFERED NO WITNESSES)
SHOWED THAT FROM 1896 TO 1936 NO NEGRO HAD SERVED ON THE GRAND OR PETIT
JURIES IN THE PARISH; THAT A VENIRE OF THREE HUNDRED IN DECEMBER, 1936,
CONTAINED THE NAMES OF THREE NEGROES, ONE OF WHOM WAS THEN DEAD, ONE OF
WHOM (D. N. DINBAUT) WAS LISTED ON THE VENIRE AS F. N. DINFANT; THE
THIRD - CALLED FOR PETIT JURY SERVICE IN JANUARY, 1937 - WAS THE ONLY
NEGRO WHO HAD EVER BEEN CALLED FOR JURY SERVICE WITHIN THE MEMORY OF
THE CLERK OF THE COURT, THE SHERIFF, OR ANY OTHER WITNESSES WHO
TESTIFIED; AND THAT THERE WERE MANY NEGRO CITIZENS OF THE PARISH
QUALIFIED UNDER THE LAWS OF LOUISIANA TO SERVE AS GRAND OR PETIT
JURORS.  ACCORDING TO THE TESTIMONY, NEGROES CONSTITUTED 25 TO 50 PER
CENT OF A TOTAL PARISH POPULATION OF TWELVE TO FIFTEEN THOUSAND.  THE
REPORT OF THE UNITED STATES DEPARTMENT OF COMMERCE, BUREAU OF THE
CENSUS, FOR 1930, SHOWS THAT THE TOTAL PARISH POPULATION WAS FOURTEEN
THOUSAND AND SEVENTY-EIGHT, 49.7 PER CENT NATIVE WHITE, AND 49.3 PER
CENT NEGRO.  IN A TOTAL NEGRO POPULATION (TEN YEARS OLD AND OVER) OF
FIVE THOUSAND TWO HUNDRED AND NINETY, 29.9 PER CENT WERE CLASSIFIED BY
THE CENSUS AS ILLITERATE. 

THE LOUISIANA SUPREME COURT FOUND - CONTRARY TO THE TRIAL JUDGE -
THAT NEGROES HAD NOT BEEN EXCLUDED FROM JURY SERVICE ON ACCOUNT OF
RACE, BUT THAT THEIR EXCLUSION WAS THE RESULT OF A BONA FIDE COMPLIANCE
BY THE JURY COMMISSION WITH STATE LAWS PRESCRIBING JURY
QUALIFICATIONS.  WITH THIS CONCLUSION WE CANNOT AGREE.  LOUISIANA LAW
REQUIRES THE COMMISSIONERS TO SELECT NAMES FOR THE GENERAL VENIRE FROM
PERSONS QUALIFIED TO SERVE WITHOUT DISTINCTION AS TO RACE OR COLOR.  IN
ORDER TO BE QUALIFIED A PERSON MUST BE: 

(A)  A CITIZEN OF THE STATE, OVER TWENTY-ONE YEARS OF AGE WITH TWO
YEARS' RESIDENCE IN THE PARISH, 

(B)  ABLE TO READ AND WRITE THE ENGLISH LANGUAGE, 

(C)  NOT CHARGED WITH ANY OFFENSE OR CONVICTED OF A FELONY, 

(D)  OF WELL KNOWN GOOD CHARACTER AND STANDING IN THE COMMUNITY. 
FN10 

THE FACT THAT APPROXIMATELY ONE-HALF OF THE PARISH'S POPULATION WERE
NEGROES DEMONSTRATES THAT THERE COULD HAVE BEEN NO LACK OF COLORED
RESIDENTS OVER TWENTY-ONE YEARS OF AGE. 

IT APPEARS FROM THE 1930 CENSUS THAT 70 PER CENT OF THE NEGRO
POPULATION OF THE PARISH WAS LITERATE, AND THE COUNTY SUPERINTENDENT OF
SCHOOLS TESTIFIED THAT FULLY TWO THOUSAND FIVE HUNDRED (83 PER CENT),
OF THE PARISH'S NEGRO POPULATION ESTIMATED BY HIM AT ONLY THREE
THOUSAND, WERE ABLE TO READ AND WRITE.  PETITIONER'S EVIDENCE
ESTABLISHED BEYOND QUESTION THAT THE MAJORITY OF THE NEGRO POPULATION
COULD READ AND WRITE, AND, IN THIS RESPECT, WERE ELIGIBLE UNDER THE
STATUTE FOR SELECTION AS JURYMEN. 

THERE IS NO EVIDENCE ON WHICH EVEN AN INFERENCE CAN BE BASED THAT ANY
APPRECIABLE NUMBER OF THE OTHERWISE QUALIFIED NEGROES IN THE PARISH
WERE DISQUALIFIED FOR SELECTION BECAUSE OF BAD CHARACTER OR CRIMINAL
RECORDS. 

WE CONCLUDE THAT THE EXCLUSION OF NEGROES FROM JURY SERVICE WAS NOT
DUE TO THEIR FAILURE TO POSSESS THE STATUTORY QUALIFICATIONS. 

THE GENERAL VENIRE BOX FOR THE PARISH IN WHICH PETITIONER WAS TRIED
WAS REQUIRED  FN11  - UNDER LOUISIANA LAW - TO CONTAIN A LIST OF THREE
HUNDRED NAMES SELECTED BY JURY COMMISSIONERS APPOINTED BY THE DISTRICT
JUDGE, AND THIS LIST HAD TO BE SUPPLEMENTED FROM TIME TO TIME SO AS TO
MAINTAIN THE REQUIRED THREE HUNDRED NAMES.  ALTHOUGH PETIT JURORS ARE
DRAWN FROM THE GENERAL VENIRE BOX AFTER THE NAMES HAVE BEEN WELL MIXED,
FN12 THE LAW PROVIDES  FN13  THAT "THE COMMISSION SHALL SELECT  ...
(FROM THE GENERAL VENIRE LIST) THE NAMES OF TWENTY CITIZENS, POSSESSING
THE QUALIFICATIONS OF GRAND JURORS,  ..."  THE TWENTY NAMES OUT OF
WHICH THE CHALLENGED GRAND JURY OF TWELVE WAS DRAWN, ACTUALLY WERE THE
FIRST TWENTY NAMES ON A NEW LIST OF FIFTY NAMES SUPPLIED - ON THE DAY
THE GRAND JURY LIST WAS SELECTED - BY THE JURY COMMISSION AS A
"SUPPLEMENT" TO THE GENERAL VENIRE OF THREE HUNDRED.  THUS, IF COLORED
CITIZENS HAD BEEN NAMED ON THE GENERAL VENIRE, THEY APPARENTLY WERE NOT
CONSIDERED, BECAUSE THE COMMISSION WENT NO FURTHER THAN THE FIRST
TWENTY NAMES ON THE SUPPLEMENTAL LIST WHICH ITSELF CONTAINED NO NAMES
OF NEGROES.  FURTHERMORE, THE UNCONTRADICTED EVIDENCE ON THE MOTION TO
QUASH SHOWED THAT NO NEGRO HAD EVER BEEN SELECTED FOR GRAND JURY
SERVICE IN THE PARISH WITHIN THE MEMORY OF ANY OF THE WITNESSES WHO
TESTIFIED ON THAT POINT. 

THE TESTIMONY INTRODUCED BY PETITIONER ON HIS MOTION TO QUASH CREATED
A STRONG PRIMA FACIE SHOWING THAT NEGROES HAD BEEN SYSTEMATICALLY
EXCLUDED - BECAUSE OF RACE - FROM THE GRAND JURY AND THE VENIRE FROM
WHICH IT WAS SELECTED.  SUCH AN EXCLUSION IS A DENIAL OF EQUAL
PROTECTION OF THE LAWS, CONTRARY TO THE FEDERAL CONSTITUTION - THE
SUPREME LAW OF THE LAND.  FN14  "THE FACT THAT THE TESTIMONY  ...  WAS
NOT CHALLENGED BY EVIDENCE APPROPRIATELY DIRECT, CANNOT BE BRUSHED
ASIDE."  FN15  HAD THERE BEEN EVIDENCE OBTAINABLE TO CONTRADICT AND
DISPROVE THE TESTIMONY OFFERED BY PETITIONER, IT CANNOT BE ASSUMED THAT
THE STATE WOULD HAVE REFRAINED FROM INTRODUCING IT.  THE JURY
COMMISSIONERS, APPOINTED BY THE DISTRICT JUDGE, WERE NOT PRODUCED AS
WITNESSES BY THE STATE.  THE TRIAL JUDGE, WHO HAD APPOINTED THE
COMMISSION, LISTENING TO THE EVIDENCE AND AIDED BY A FAMILIARITY WITH
CONDITIONS IN THE PARISH OF MANY YEARS' STANDING, AS JUDGE, PROSECUTOR
AND PRACTICING ATTORNEY, CONCLUDED THAT NEGROES HAD BEEN EXCLUDED FROM
JURY SERVICE BECAUSE OF THEIR RACE, AND ORDERED THE VENIRE QUASHED AND
THE BOX PURGED AND REFILLED.  OUR EXAMINATION OF THE EVIDENCE CONVINCES
US THAT THE BILL OF EXCEPTIONS WHICH HE SIGNED CORRECTLY STATED THAT
PETITIONER "DID PROVE AT THE TRIAL OF SAID MOTION TO QUASH THAT NEGROES
AS PERSONS OF COLOR HAD BEEN PURPOSELY EXCLUDED FROM THE GRAND JURY
VENIRE AND PANEL WHICH RETURNED SAID INDICTMENT AGAINST ...
(PETITIONER) ON ACCOUNT OF THEIR COLOR AND RACE,  ...  "    PRINCIPLES
WHICH FORBID DISCRIMINATION IN THE SELECTION OF PETIT JURIES ALSO
GOVERN THE SELECTION OF GRAND JURIES.  "IT IS A RIGHT TO WHICH EVERY
COLORED MAN IS ENTITLED, THAT, IN THE SELECTION OF JURORS TO PASS UPON
HIS LIFE, LIBERTY, OR PROPERTY, THERE SHALL BE NO EXCLUSION OF HIS
RACE, AND NO DISCRIMINATION AGAINST THEM BECAUSE OF THEIR COLOR."  FN16
THIS RECORD REQUIRES THE HOLDING THAT THE COURT BELOW WAS IN ERROR
BOTH IN AFFIRMING THE CONVICTION OF PETITIONER AND IN FAILING TO HOLD
THAT THE INDICTMENT AGAINST HIM SHOULD HAVE BEEN QUASHED.  THE CAUSE IS
REVERSED AND REMANDED TO THE SUPREME COURT OF LOUISIANA.  REVERSED. 

FN1  189 LA. 764; 180 SO. 630.    FN2  305 U.S. 586. 

FN3  UNDER LOUISIANA PRACTICE THE DISTRICT JUDGE ORDERS THE JURY
COMMISSION TO SELECT THREE HUNDRED QUALIFIED JURORS IN A GIVEN PARISH,
WHO COMPOSE THE GENERAL VENIRE LIST, TO BE KEPT COMPLETE AND
SUPPLEMENTED FROM TIME TO TIME.  THESE NAMES ARE PLACED IN THE "GENERAL
VENIRE BOX."  FROM THE GENERAL VENIRE LIST, THE COMMISSION SELECTS
TWENTY PERSONS QUALIFIED AS GRAND JURORS, TO SERVE SIX MONTHS, WHO
COMPOSE THE "LIST OF GRAND JURORS."  THE JUDGE SELECTS A FOREMAN FROM
THE "LIST OF GRAND JURORS" AND THE SHERIFF DRAWS ELEVEN MORE WHO, WITH
THE FOREMAN, CONSTITUTE THE GRAND JURY PANEL.  AFTER SELECTION OF THE
"LIST OF GRAND JURORS" THE COMMISSION DRAWS THIRTY NAMES FROM THE
"GENERAL VENIRE BOX" TO SERVE AS PETIT JURORS, WHO ARE DESIGNATED A
"LIST OF JURORS" AND THIS "LIST OF JURORS" IS KEPT IN THE "JURY BOX." 
LOUISIANA CODE OF CRIMINAL PROCEDURE (DART, 1932) TITLE XVIII, C. 2. 

FN4  STRAUDER V. WEST VIRGINIA, 100 U.S. 303, 308, 309; CARTER V.
TEXAS, 177 U.S. 442, 447; MARTIN V. TEXAS, 200 U.S. 316, 319. 

FN5  U.S.C. TITLE 8, SEC. 44. 

FN6  CF., NORRIS V. ALABAMA, 294 U.S. 587, 589; NEAL V. DELAWARE, 103
U.S. 370, 397; CARTER V. TEXAS, SUPRA, AT 447; HALE V. KENTUCKY, 303
U.S. 613, 616. 

FN7  NORRIS V. ALABAMA, 294 U.S. 587, 590. 

FN8  CF. STRAUDER V. WEST VIRGINIA, SUPRA, 308, 309. 

FN9  VIRGINIA V. RIVES, 100 U.S. 313, 319. 

FN10  LOUISIANA CODE OF CRIMINAL PROCEDURE, SUPRA, TITLE XVIII, C.
1. 

FN11  SEE NOTE 3, SUPRA. 

FN12  LOUISIANA CODE OF CRIMINAL PROCEDURE, SUPRA, TITLE XVIII, C. 2,
ART. 181. 

FN13  ID., ART. 180. 

FN14  NEAL V. DELAWARE, SUPRA, 397; NORRIS V. ALABAMA, SUPRA, 591;
HALE V. KENTUCKY, SUPRA, 616. 

FN15  NORRIS V. ALABAMA, SUPRA, 594, 595. 

FN16  VIRGINIA V. RIVES, SUPRA, 322-3. 
..END :




















UNITED STATES V. JACOBS, 306 U.S. 363 


NO. 391.  ARGUED FEBRUARY 2, 1939.  - DECIDED FEBRUARY 27, 1939.  - 97
F.2D 784, REVERSED - 99 ID. 799, AFFIRMED. 


1.  UNDER THE REVENUE ACT OF 1924, SEC. 301, AND SUBSTANTIALLY
IDENTICAL PROVISIONS OF THE REVENUE ACT OF 1926, IN DETERMINING THE TAX
UPON TRANSFER OF THE NET ESTATE OF A DECEDENT, DYING AFTER THE DATE OF
ENACTMENT, THERE IS TO BE INCLUDED IN THE GROSS ESTATE THE FULL VALUE
OF PROPERTY REAL OR PERSONAL WHICH WAS OWNED BY THE DECEDENT AND HIS
WIFE AS JOINT TENANTS AT THE TIME OF HIS DEATH BUT WHICH WAS ACQUIRED
WITH HIS FUNDS, OR WAS SET UP IN PART BY HIS CONTRIBUTION AND IN PART
BY A CONTRIBUTION FROM THE WIFE OF PROPERTY WHICH HE HAD PREVIOUSLY
GIVEN HER.  PP. 364, 371. 

2.  THESE PROVISIONS ARE APPLICABLE UNDER THE STATUTE, AND VALID
UNDER THE FIFTH AMENDMENT, NOTWITHSTANDING THAT THE JOINT TENANCY WAS
CREATED BEFORE THE APPROVAL OF THE ACTS MENTIONED AND BEFORE THE
ENACTMENT OF THE FIRST ESTATE TAX LAW, IN 1916.  P. 366. 

3.  THE TAX IS NOT RETROACTIVE, BEING IMPOSED UPON THE OCCASION OF
THE CHANGE OF OWNERSHIP AND BENEFICIAL RIGHTS AT THE DEATH OF ONE OF
THE JOINT TENANTS.  P. 366. 

4.  DESPITE THE COMMON LAW DISTINCTIONS BETWEEN JOINT TENANCIES AND
TENANCIES BY THE ENTIRETY, THERE ARE SUBSTANTIAL SIMILARITIES WHICH
JUSTIFIED CONGRESS IN TREATING THEM ALIKE FOR ESTATE TAX PURPOSES.  P.
370. 

5.  THE PRESUMPTION THAT AN ACT OF CONGRESS IS VALID APPLIES WITH
ADDED FORCE TO A REVENUE ACT.  P. 370. 

UNITED STATES V. JACOBS, EXECUTRIX.* 

*TOGETHER WITH NO. 482, DIMOCK, SUBSTITUTED EXECUTOR, V. CORWIN, LATE
COLLECTOR OF INTERNAL REVENUE, ON WRIT OF CERTIORARI TO THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 305 U.S. 588, 593, TO REVIEW AFFIRMANCES BELOW OF TWO
JUDGMENTS OF DISTRICT COURTS, IN THE ONE CASE ALLOWING, AND IN THE
OTHER DENYING, RECOVERY OF MONEY EXACTED UNDER A DEFICIENCY ESTATE TAX
ASSESSMENT.  AN OPINION OF THE DISTRICT COURT IN THE SECOND CASE IS
REPORTED IN 19 F.SUPP.  56. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

NO. 391. 

THE QUESTION IS WHETHER THE ENTIRE VALUE OR ONLY ONE-HALF THE VALUE
OF REAL PROPERTY - PURCHASED BY A DECEDENT WITH HIS OWN FUNDS AND HELD
AT HIS DEATH BY HIS WIFE AND HIMSELF UNDER A JOINT TENANCY SET UP PRIOR
TO 1916 - MAY BE INCLUDED IN THE DECEDENT'S GROSS ESTATE UNDER THE 1924
REVENUE ACT. 

IN 1909, REAL ESTATE IN ILLINOIS WAS CONVEYED TO W. FRANCIS JACOBS,
THE DECEDENT, AND ELIZABETH C. JACOBS, HIS WIFE, "AS JOINT TENANTS" AND
THIS JOINT TENANCY CONTINUED UNTIL DECEDENT'S DEATH; THE WIFE NEVER
CONTRIBUTED ANY PART OF, OR CONSIDERATION FOR, THE JOINT PROPERTY;
DECEDENT DIED JUNE 17, 1924(AFTER THE EFFECTIVE DATE OF THE 1924
REVENUE ACT), AND AS SURVIVOR THE WIFE BECAME SOLE OWNER IN FEE OF THE
WHOLE OF THE JOINT PROPERTY. 

THE COMMISSIONER INCLUDED THE FULL VALUE OF THE PROPERTY IN
DECEDENT'S GROSS ESTATE FOR TAXATION UNDER THE 1924 ACT.  AS EXECUTRIX,
RESPONDENT PAID THE TAX, AND SOUGHT RECOVERY IN THE DISTRICT COURT
WHICH HELD THAT THE ESTATE TAX COULD BE IMPOSED ONLY UPON ONE-HALF OF
THE JOINT PROPERTY'S TOTAL VALUE.  THE CIRCUIT COURT OF APPEALS
AFFIRMED.  FN1 

RESPONDENT CONSTRUES THE 1924 REVENUE ACT AS TAXING - BY ITS TERMS -
ONLY ONE-HALF THE VALUE OF THE JOINT PROPERTY, AND CONTENDS THAT
INCLUSION OF THE PROPERTY'S ENTIRE VALUE FOR ESTATE TAX PURPOSES WOULD
AS RETROACTIVE TAXATION VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

FIRST.  IT IS CLEAR THAT CONGRESS INTENDED, BY SEC. 302 OF THE 1924
ACT,  FN2  TO INCLUDE IN THE GROSS ESTATE OF A DECEDENT THE FULL VALUE
AT DEATH OF ALL PROPERTY OWNED BY HIM AND ANY OTHER IN JOINT TENANCY OR
BY THE ENTIRETY - IRRESPECTIVE OF THE DATE OF THE TENANCY'S CREATION -
INSOFAR AS THE PROPERTY OR CONSIDERATION THEREFOR IS TRACEABLE TO THE
DECEDENT.  SUBDIVISION (H) OF SEC. 302 SPECIFICALLY PROVIDED THAT THE
PROVISIONS OF SEC. 302 RELATING TO JOINT TENANCIES SHOULD "APPLY TO THE
TRANSFERS, TRUSTS, ESTATES, INTERESTS, RIGHTS, POWERS, AND
RELINQUISHMENT OF POWERS, AS  ... DESCRIBED THEREIN, WHETHER MADE,
CREATED, ARISING, EXISTING, EXERCISED, OR RELINQUISHED BEFORE OR AFTER
THE ENACTMENT OF THIS ACT."  SECTION 302(H) WAS ENACTED IN THE 1924 ACT
AFTER THIS COURT, ON MAY 1, 1922, HAD DECIDED THAT THE 1916 ACT DID NOT
PURPORT TO IMPOSE AN ESTATE TAX MEASURED BY THE VALUE OF PROPERTY HELD
IN JOINT TENANCIES CREATED PRIOR TO THE 1916 ACT.  FN3  "THE CLEAR
LANGUAGE OF THE 1924 STATUTE REPELS THE NOTION THAT IT HAS NO
APPLICATION TO JOINT TENANCIES CREATED PRIOR TO SEPTEMBER 8, 1916." 
FN4 

SECOND.  HERE, DECEDENT PAID THE ENTIRE PURCHASE PRICE OF THE JOINT
PROPERTY WITH HIS OWN INDIVIDUAL FUNDS AND, THEREFORE, THE 1924 STATUTE
REQUIRED THE INCLUSION OF THE FULL VALUE OF THE JOINT PROPERTY IN HIS
GROSS ESTATE.  CONTENDING THAT THE TAX AS SO APPLIED IS RETROACTIVE,
RESPONDENT INSISTS THAT THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
FORBIDS SUCH TAXATION.  THE REASONING IS THAT A ONE-HALF INTEREST IN
THE JOINT PROPERTY WAS TRANSFERRED TO, AND VESTED IN, THE WIFE IN 1909;
THAT THE TAX IN QUESTION ONLY APPLIES TO TRANSFERS; AND THAT THE ONE
HALF INTEREST TRANSFERRED TO THE WIFE IN 1909 COULD NOT THEREAFTER
(1924) BE TAXED AS A PART OF DECEDENT'S GROSS ESTATE WITHOUT
RETROACTIVELY APPLYING THE TAX TO THE 1909 TRANSFER. 

BUT THE TAX WAS NOT LEVIED ON THE 1909 TRANSFER AND WAS NOT
RETROACTIVE.  AT DECEDENT'S DEATH IN 1924, OWNERSHIP AND BENEFICIAL
RIGHTS IN THE PROPERTY WHICH HAD EXISTED IN BOTH TENANTS JOINTLY
CHANGED INTO THE SINGLE OWNERSHIP OF THE SURVIVOR.  THIS CHANGE IN
OWNERSHIP, ATTRIBUTABLE TO THE SPECIAL CHARACTER OF JOINT TENANCIES,
WAS MADE THE OCCASION FOR AN EXCISE, TO BE MEASURED BY THE VALUE OF THE
PROPERTY IN WHICH THE CHANGE OF OWNERSHIP OCCURRED.  HAD THE TENANCY
NOT BEEN CREATED, THIS SURVIVORSHIP AND CHANGE OF OWNERSHIP WOULD NOT
HAVE TAKEN PLACE, BUT THE TAX DOES NOT OPERATE RETROACTIVELY MERELY
BECAUSE SOME OF THE FACTS OR CONDITIONS UPON WHICH ITS APPLICATION
DEPENDS CAME INTO BEING PRIOR TO THE ENACTMENT OF THE TAX.  FN5 

DEATH DUTIES OR EXCISES IMPOSED UPON THE OCCASION OF CHANGE IN LEGAL
RELATIONSHIPS TO PROPERTY BROUGHT ABOUT BY DEATH ARE ANCIENT IN
ORIGIN.  FN6  CONGRESS HAS THE POWER TO LEVY A TAX UPON THE OCCASION OF
A JOINT TENANT'S ACQUIRING THE STATUS OF SURVIVOR AT THE DEATH OF A CO
TENANT.  IN HOLDING THAT THE FULL VALUE OF AN ESTATE BY THE ENTIRETY
MAY CONSTITUTIONALLY BE INCLUDED IN A DECEDENT'S GROSS ESTATE FOR
ESTATE TAX PURPOSES, THIS COURT SAID:  "THE QUESTION  ...  IS, NOT
WHETHER THERE HAS BEEN, IN THE STRICT SENSE OF THAT WORD, A 'TRANSFER'
OF THE PROPERTY BY THE DEATH OF THE DECEDENT, OR A RECEIPT OF IT BY
RIGHT OF SUCCESSION, BUT WHETHER THE DEATH HAS BROUGHT INTO BEING OR
RIPENED FOR THE SURVIVOR, PROPERTY RIGHTS OF SUCH CHARACTER AS TO MAKE
APPROPRIATE THE IMPOSITION OF A TAX UPON THAT RESULT (WHICH CONGRESS
MAY CALL A TRANSFER TAX, A DEATH DUTY OR ANYTHING ELSE IT SEES FIT), TO
BE MEASURED, IN WHOLE OR IN PART, BY THE VALUE OF SUCH RIGHTS  ... 

"AT  ...  (THE CO-TENANT'S) DEATH, HOWEVER, AND BECAUSE OF IT,  ...
(THE SURVIVOR) FOR THE FIRST TIME, BECAME ENTITLED TO EXCLUSIVE
POSSESSION, USE AND ENJOYMENT; SHE CEASED TO HOLD THE PROPERTY SUBJECT
TO QUALIFICATIONS IMPOSED BY THE LAW RELATING TO TENANCY BY THE
ENTIRETY, AND BECAME ENTITLED TO HOLD AND ENJOY IT ABSOLUTELY AS HER
OWN; AND THEN, AND THEN ONLY, SHE ACQUIRED THE POWER, NOT THERETOFORE
POSSESSED, OF DISPOSING OF THE PROPERTY BY AN EXERCISE OF HER SOLE
WILL.  THUS THE DEATH OF ONE OF THE PARTIES TO THE TENANCY BECAME THE
'GENERATING SOURCE' OF IMPORTANT AND DEFINITE ACCESSIONS TO THE
PROPERTY RIGHTS OF THE OTHER.  THESE CIRCUMSTANCES, TOGETHER WITH THE
FACT, THE EXISTENCE OF WHICH THE STATUTE REQUIRES, THAT NO PART OF THE
PROPERTY ORIGINALLY HAD BELONGED TO THE WIFE, ARE SUFFICIENT, IN OUR
OPINION, TO MAKE VALID THE INCLUSION OF THE PROPERTY IN THE GROSS
ESTATE WHICH FORMS THE PRIMARY BASE FOR THE MEASUREMENT OF THE TAX." 
FN7 

THEREAFTER, IT WAS FURTHER DECIDED THAT THE FULL VALUE OF THE
PROPERTY PASSING TO A SURVIVOR UNDER A TENANCY BY THE ENTIRETY CREATED
PRIOR TO THE ESTATE TAX OF 1916 COULD BE INCLUDED IN THE GROSS ESTATE. 
FN8  CONGRESS - IT HAS BEEN HELD - MAY ALSO CONSTITUTIONALLY APPLY AN
ESTATE TAX TO THE WHOLE OF A JOINT TENANCY CREATED AFTER THE 1916 ACT,
FN9  AND TO HALF OF A JOINT TENANCY CREATED PRIOR TO THE 1916 ACT,
WHERE THE DECEDENT ALONE HAD FURNISHED CONSIDERATION FOR THE JOINT
PROPERTY.  FN10 

IT IS URGED THAT THESE DECISIONS DO NOT SUPPORT THE TAX HERE UPON THE
FULL VALUE OF THE JOINT PROPERTY, BECAUSE THIS TENANCY WAS CREATED
PRIOR TO THE ESTATE TAX LAW OF 1916.  RESPONDENT RELIES UPON
DIFFERENCES IN THE NATURE OF TENANCIES BY THE ENTIRETY AND JOINT
TENANCIES IN ORDER TO REMOVE THE PRESENT CASE FROM THE APPLICATION OF
THESE PRIOR ADJUDICATIONS.  SINCE A JOINT TENANT'S INTEREST IN REALTY
IS SEVERABLE AND SUBJECT TO SALE, THE ARGUMENT IS THAT UPON THE DEATH
OF A CO-TENANT THE SURVIVOR ACTUALLY RECEIVES NOTHING MORE THAN THE
DECEDENT'S ONE-HALF INTEREST AND THEREFORE NO MORE CAN BE SUBJECTED TO
A DEATH DUTY.  ON THE OTHER HAND, RESPONDENT EXPLAINS THE PERMISSIBLE
TAXATION OF THE WHOLE OF A TENANCY BY THE ENTIRETY BY REFERENCE TO THE
"AMIABLE FICTION"  FN11  OF THE COMMON LAW, UNDER WHICH OWNERSHIP OF A
HUSBAND AND WIFE IN TENANCY BY THE ENTIRETY IS DEEMED A SINGLE
INDIVIDUAL UNITY AND EACH OWNS ALL AND EVERY PART OF THE PROPERTY SO
HELD.  BY VIRTUE OF THIS FEUDAL FICTION OF COMPLETE OWNERSHIP IN EACH
OF TWO PERSONS, THE SURVIVING TENANT BY THE ENTIRETY IS CONCEIVED TO BE
THE RECIPIENT OF ALL THE PROPERTY UPON THE DEATH OF THE CO-TENANT, AND
THEREFORE - IT IS SAID - ALL THE PROPERTY CAN BE TAXED. 

THE CONSTITUTIONALITY OF AN EXERCISE OF THE TAXING POWER OF CONGRESS
IS NOT TO BE DETERMINED BY SUCH SHADOWY AND INTRICATE DISTINCTIONS OF
COMMON LAW PROPERTY CONCEPTS AND ANCIENT FICTIONS.  FN12  THE
CONSTITUTION GRANTS CONGRESS THE "POWER TO LAY AND COLLECT TAXES,
DUTIES, IMPOSTS, AND EXCISES, TO PAY THE DEBTS AND PROVIDE FOR THE
COMMON DEFENCE AND GENERAL WELFARE."  NO MORE ESSENTIAL OR IMPORTANT
POWER HAS BEEN CONFERRED UPON THE CONGRESS AND THE PRESUMPTION THAT AN
ACT OF CONGRESS IS VALID APPLIES WITH ADDED FORCE AND WEIGHT TO A LEVY
OF PUBLIC REVENUE.  FN13 

IN ADDITION, THERE IS SUFFICIENT SUBSTANTIAL SIMILARITY BETWEEN JOINT
TENANCIES AND TENANCIES BY THE ENTIRETY TO HAVE MOVED CONGRESS TO TREAT
THEM ALIKE FOR PURPOSES OF TAXATION.  PRACTICAL NECESSITIES - AND
TAXATION IS "EMINENTLY PRACTICAL"  FN14  - MAY WELL HAVE LED CONGRESS
TO GROUP DIFFERENT TYPES OF JOINT OWNERSHIP TOGETHER FOR TAXATION
RATHER THAN TO AFFORD DIFFERENT TREATMENT TO EACH VARYING SHADE OF SUCH
OWNERSHIP.  A TENANCY BY THE ENTIRETY "IS ESSENTIALLY A JOINT TENANCY,
MODIFIED BY THE COMMON LAW THEORY THAT HUSBAND AND WIFE ARE ONE
PERSON."  FN15  ONLY A FICTION STANDS BETWEEN THE TWO.  SURVIVORSHIP IS
THE PREDOMINANT AND DISTINGUISHING FEATURE OF EACH.  THE "GRAND
INCIDENT OF JOINT ESTATE IS THE DOCTRINE OF SURVIVORSHIP, 'BY WHICH,
WHEN TWO OR MORE PERSONS ARE SEIZED OF A JOINT ESTATE,  ...  THE ENTIRE
TENANCY UPON THE DECEASE OF ANY OF THEM REMAINS TO THE SURVIVORS, AND
AT LENGTH TO THE LAST SURVIVOR; AND HE SHALL BE ENTITLED TO THE WHOLE
ESTATE, WHATEVER IT MAY BE.'"  FN16 

WHILE IT IS TRUE THAT UNTIL THE DEATH OF DECEDENT HERE EACH JOINT
TENANT POSSESSED THE RIGHT TO SEVER THE JOINT TENANCY, EACH WAS
NEVERTHELESS SUBJECTED TO THE HAZARD OF LOSING THE COMPLETE ESTATE TO
THE OTHER AS SURVIVOR.  PRIOR TO DECEDENT'S DEATH, HIS WIFE HAD NO
RIGHT TO DISPOSE OF HER INTEREST BY WILL, NOR COULD IT PASS TO HER
LEGAL HEIRS.  SHE MIGHT SURVIVE AND THEREBY OBTAIN A COMPLETE FEE TO
THE PROPERTY WITH ATTENDANT RIGHTS OF POSSESSION AND DISPOSITION BY
WILL OR OTHERWISE.  UNTIL THE DEATH OF HER CO-TENANT, THE WIFE COULD
HAVE SEVERED THE JOINT TENANCY AND THUS HAVE ESCAPED THE APPLICATION OF
THE ESTATE TAX OF WHICH SHE COMPLAINS.  UPON THE DEATH OF HER CO-TENANT
SHE FOR THE FIRST TIME BECAME POSSESSED OF THE SOLE RIGHT TO SELL THE
ENTIRE PROPERTY WITHOUT RISK OF LOSS WHICH MIGHT HAVE RESULTED FROM
PARTITION OR SEPARATE SALE OF HER INTEREST WHILE DECEDENT LIVED.  THERE
WAS - AT HIS DEATH - A DISTINCT SHIFTING OF ECONOMIC INTEREST,  FN17 A
DECIDED CHANGE FOR THE SURVIVOR'S BENEFIT.  THIS TERMINATION OF A JOINT
TENANCY MARKED BY A CHANGE IN THE NATURE OF OWNERSHIP OF PROPERTY WAS
DESIGNATED BY CONGRESS AS AN APPROPRIATE OCCASION FOR THE IMPOSITION OF
A TAX.  NEITHER THE AMOUNT OF THE TAX NOR ITS APPLICATION TO THE
SURVIVOR'S CHANGE OF STATUS AND OWNERSHIP, WAS IN ANY MANNER DEPENDENT
UPON THE DATE OF THE JOINT TENANCY'S CREATION, WHETHER BEFORE, OR
AFTER, 1916.  IT IS IMMATERIAL THAT CONGRESS CHOSE TO MEASURE THE
AMOUNT OF THE TAX BY A PERCENTAGE OF THE TOTAL VALUE OF THE PROPERTY,
RATHER THAN BY A PART, OR BY A SET SUM FOR EACH SUCH CHANGE.  THE
WISDOM BOTH OF THE TAX AND OF ITS MEASUREMENT WAS FOR CONGRESS TO
DETERMINE. 

                               NO. 482. 

NO. 482 INVOLVES PROVISIONS OF THE 1926 REVENUE ACT (44 STAT. 9)
SUBSTANTIALLY IDENTICAL TO THOSE OF THE 1924 ACT CONSIDERED ABOVE. 
HERE, ALSO, A JOINT TENANCY (IN PERSONAL PROPERTY) WAS CREATED BY MAN
AND WIFE PRIOR TO 1916.  HOWEVER, NOT ALL OF THE JOINT PROPERTY WAS
CONTRIBUTED BY THE DECEDENT, BUT A PORTION WAS CONTRIBUTED TO THE
TENANCY BY THE WIFE WHO SURVIVED.  THIS PROPERTY WHICH SHE TRANSFERRED
TO THE TENANCY HAD IN TURN BEEN PREVIOUSLY GIVEN TO HER - WITHOUT
CONSIDERATION - BY DECEDENT BEFORE THE CREATION OF THE JOINT TENANCY. 
AT DECEDENT'S DEATH IN 1930, AN ESTATE TAX WAS ASSESSED AND PAID UPON
THE FULL VALUE OF THE JOINT PROPERTY, INCLUDING THAT PART CONTRIBUTED
BY THE SURVIVOR BUT ULTIMATELY TRACEABLE TO THE DECEDENT. 

THE DISTRICT COURT HELD THAT THE FULL VALUE OF THE JOINT PROPERTY WAS
TAXABLE,  FN18  AND THE CIRCUIT COURT OF APPEALS AFFIRMED.  FN19 

THE CONTENTION THAT THE 1926 TAX IS UNCONSTITUTIONAL UNDER THE FIFTH
AMENDMENT BECAUSE IMPOSED UPON THE TOTAL VALUE OF THE JOINT TENANCY AT
DECEDENT'S DEATH IS WITHOUT MERIT, FOR REASONS STATED IN NO. 391. 

HOWEVER, THERE IS HERE THE FURTHER ARGUMENT THAT THE COURTS BELOW
ERRED IN CONSTRUING THE 1926 ACT TO REQUIRE THE INCLUSION IN THE GROSS
ESTATE OF THAT PART OF THE JOINT PROPERTY (SHARES OF STOCK) CONTRIBUTED
TO THE JOINT TENANCY BY THE SURVIVOR, BUT WHICH HAD BEEN PAID FOR AND
GIVEN TO HER BY DECEDENT PRIOR TO THE CREATION OF THE TENANCY. 
ALTHOUGH SUBDIVISION (H) OF SEC. 302 OF THE 1926 ACT SPECIFICALLY
REQUIRED INCLUSION IN THE GROSS ESTATE OF THE FULL VALUE OF THE JOINT
PROPERTY AT DEATH IN PROPORTION TO THE DECEDENT'S CONTRIBUTION TO THE
PURCHASE PRICE, PETITIONER RELIES UPON THAT PART OF SUBDIVISION (E)
WHICH EXCEPTS "SUCH PART (OF THE JOINT PROPERTY)  ...  AS MAY BE SHOWN
TO HAVE ORIGINALLY BELONGED TO ...  (THE SURVIVOR) AND NEVER TO HAVE
BEEN RECEIVED OR ACQUIRED BY THE LATTER FROM THE DECEDENT FOR LESS THAN
AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH." 
PETITIONER INSISTS THAT THIS EXCEPTION SHOULD BE READ "EXCEPT SUCH
PARTS THEREOF AS MAY BE SHOWN TO HAVE ORIGINALLY BELONGED TO (THE
SURVIVOR) AND NEVER AFTER THE PASSAGE OF THIS ACT TO HAVE BEEN RECEIVED
OR ACQUIRED BY THE LATTER FROM THE DECEDENT FOR LESS THAN AN ADEQUATE
AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH." 

THE SURVIVING JOINT TENANT IN THIS CASE COMES SQUARELY WITHIN THE
GOVERNING STATUTORY PROVISION BECAUSE SHE "RECEIVED" AND "ACQUIRED" ALL
OF THE PROPERTY CONTRIBUTED BY HER TO THE JOINT TENANCY "FROM THE
DECEDENT FOR LESS THAN AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR
MONEY'S WORTH."  THIS LANGUAGE ADOPTED BY CONGRESS CLEARLY AND
UNAMBIGUOUSLY INDICATES THE PURPOSE TO TAX THE ENTIRE VALUE OF A JOINT
TENANCY UNDER CIRCUMSTANCES SHOWN BY THIS RECORD.  WE ARE WITHOUT
AUTHORITY TO ADD LANGUAGE TO THE STATUTE DIRECTLY CONTRARY TO SUCH A
CLEARLY EXPRESSED PURPOSE. 

THE JUDGMENT IN NO. 391 IS REVERSED AND THAT IN NO. 482 IS AFFIRMED. 

FN1  97 F.2D 784. 

FN2  THE 1924 ACT IMPOSED A TAX (SEC. 301, ACT OF 1924, 43 STAT. 253,
303) "UPON THE TRANSFER OF THE NET ESTATE OF EVERY DECEDENT DYING
AFTER" THE ACT'S ENACTMENT, AND INCLUDED (SEC. 302) IN EACH GROSS
ESTATE THE VALUE OF "THE INTEREST  ...  (IN PROPERTY) HELD AS JOINT
TENANTS BY THE DECEDENT AND ANY OTHER PERSON, OR AS TENANTS BY THE
ENTIRETY BY THE DECEDENT AND SPOUSE,  ...  EXCEPT SUCH PART THEREOF AS
MAY BE SHOWN TO HAVE ORIGINALLY BELONGED TO SUCH OTHER PERSON AND NEVER
TO HAVE BEEN RECEIVED OR ACQUIRED BY THE LATTER FROM THE DECEDENT FOR
LESS THAN A FAIR CONSIDERATION IN MONEY OR MONEY'S WORTH:  PROVIDED,
THAT WHERE SUCH PROPERTY OR ANY PART THEREOF, OR PART OF THE
CONSIDERATION WITH WHICH SUCH PROPERTY WAS ACQUIRED, IS SHOWN TO HAVE
BEEN AT ANY TIME ACQUIRED BY SUCH PERSON FROM THE DECEDENT FOR LESS
THAN A FAIR CONSIDERATION IN MONEY OR MONEY'S WORTH, THERE SHALL BE
EXCEPTED ONLY SUCH PART OF THE VALUE OF SUCH PROPERTY AS IS
PROPORTIONATE TO THE CONSIDERATION FURNISHED BY SUCH OTHER PERSON
..." 

FN3  SHWAB V. DOYLE, 258 U.S. 529, 535; KNOX V. MCELLIGOTT, 258 U.S.
546, 549.  RESPONDENT RELIES UPON LANGUAGE OF THE KNOX CASE TO SUPPORT
THE CONTENTION THAT SEC. 302 OF THE 1924 ACT IS RETROACTIVE IN ITS
EFFECT ON JOINT TENANCIES SUCH AS THE ONE HERE.  HOWEVER, THE ACTUAL
JUDGMENT OF THE COURT IN THAT CASE WENT NO FURTHER THAN TO HOLD THAT
THE TERMS OF THE 1916 ACT THERE CONSIDERED DID NOT REQUIRE THE
INCLUSION - IN GROSS ESTATES - OF THE VALUE OF PROPERTY HELD IN JOINT
TENANCIES CREATED PRIOR TO THE ENACTMENT OF THAT PARTICULAR LAW. 

FN4  GWINN V. COMMISSIONER, 287 U.S. 224, 226; CF., PHILLIPS V. DIME
TRUST & S.D. CO., 284 U.S. 160, 166. 

FN5  CF., REYNOLDS V. UNITED STATES, 292 U.S. 443, 449; COX V. HART,
260 U.S. 427, 435. 

FN6  SEE, KNOWLTON V. MOORE, 178 U.S. 41, 47; 1 COOLEY, "TAXATION,"
SEC. 48, (4TH ED.); SELIGMAN, "ESSAYS IN TAXATION," CH. V, (9TH ED.,
1921). 

FN7  TYLER V. UNITED STATES, 281 U.S. 497, 503, 504. 

FN8  THIRD NATIONAL BANK & TRUST CO. V. WHITE, 45 F.2D 911, AFFIRMED
287 U.S. 577; HELVERING V. BOWERS, 303 U.S. 618. 

FN9 FOSTER V. COMMISSIONER, 303 U.S. 618. 

FN10  GWINN V. COMMISSIONER, SUPRA; GRISWOLD V. HELVERING, 290 U.S.
56, 58.  IN THE GRISWOLD CASE THIS COURT SAID:  "WHETHER THIS
APPLICATION OF THE STATUTE GIVES IT A RETROACTIVE EFFECT IS THE SOLE
QUESTION HERE INVOLVED; AND WITH THAT WE FIND NO DIFFICULTY.  UNDER THE
STATUTE THE DEATH OF DECEDENT IS THE EVENT IN RESPECT OF WHICH THE TAX
IS LAID.  IT IS THE EXISTENCE OF THE JOINT TENANCY AT THAT TIME, AND
NOT ITS CREATION AT AN EARLIER DATE, WHICH FURNISHES THE BASIS FOR THE
TAX." 

FN11  CF., TYLER V. UNITED STATES, SUPRA, AT 503. 

FN12  A JOINT TENANCY IN ILLINOIS - WHERE THE PROPERTY INVOLVED HERE
IS LOCATED - IS DESCRIBED BY THAT STATE'S HIGHEST COURT (AS IN THE
COMMON LAW) AS FOLLOWS:  "THE PROPERTIES OF A JOINT ESTATE ARE DERIVED
FROM ITS UNITY, WHICH IS FOURFOLD:  THE UNITY OF INTEREST, THE UNITY OF
TITLE, THE UNITY OF TIME AND THE UNITY OF POSSESSION; OR, IN OTHER
WORDS, JOINT TENANTS HAVE ONE AND THE SAME INTEREST, ACCRUING BY ONE
AND THE SAME CONVEYANCE, COMMENCING AT ONE AND THE SAME TIME AND HELD
BY ONE AND THE SAME UNDIVIDED POSSESSION."  DESLAURIERS V. SENESAC, 331
ILL. 437, 440; 163 N.E. 327.  THE "LEARNING IN THE BOOKS MERELY SHOWS
THAT IN CASE OF A CONVEYANCE TO HUSBAND AND WIFE, THERE IS A FIFTH
UNITY, TO WIT:  THAT OF PERSON  ..."  TOPPING V. SADLER, V JONES (NO.
CAR.)  357, 360.  SEE NOTE, 30 L.R.A. 305. 

FN13  NICOL V. AMES, 173 U.S. 509, 515. 

FN14 ID., 516. 

FN15  1 TIFFANY, "REAL PROPERTY" (1920), SEC. 194; SEE, LITTLETON'S
"TENURES," SEC. 291(WAMBAUGH, ED., 1903). 

FN16  FREEMAN, "COTENANCY AND PARTITION," 2ND ED., SEC. 12. 

FN17  CF., CHASE NATIONAL BANK V. UNITED STATES, 278 U.S. 327, 338;
SALTONSTALL V. SALTONSTALL, 276 U.S. 260, 271. 

FN18  19 F.SUPP.  56. 

FN19  99 F.2D 799. 

MR. JUSTICE STONE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER, AND MR. JUSTICE ROBERTS
THINK THAT THE JUDGMENT IN NO. 391 SHOULD BE AFFIRMED AND THAT IN NO.
482 SHOULD BE REVERSED. 

IT HAS LONG BEEN THE SETTLED DOCTRINE OF THIS COURT THAT CONGRESS
CANNOT RETROACTIVELY TAX, AS TESTAMENTARY, A TRANSFER CONSUMMATED IN
ACCORDANCE WITH EXISTING LAW BEFORE THE ADOPTION OF A SYSTEM OF ESTATE
TAXATION, AND WHERE THE PARTIES, AT THE TIME OF THE TRANSACTION, HAD NO
NOTICE OF INTENT TO TAX IT AS A TRANSFER IN CONTEMPLATION OF DEATH OR
TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER DEATH.  FN1  IN
ORDER TO AVOID HOLDING TAXING ACTS UNCONSTITUTIONAL ON THIS GROUND, THE
COURT HAS OFTEN CONSTRUED THEM AS APPLYING PROSPECTIVELY ONLY.  FN2
RELIANCE IS PLACED BY THE GOVERNMENT ON DECISIONS SUSTAINING INCLUSION
IN THE ESTATE OF ONE SPOUSE OF THE ENTIRE VALUE OF AN ESTATE BY THE
ENTIRETIES.  IN THE EARLIER CASES WHEREIN THE EXACTION WAS UPHELD THE
ACT OPERATED PROSPECTIVELY AND AFFECTED ONLY SUCH AN ESTATE ARISING
AFTER PASSAGE OF THE STATUTE,  FN3  OR THE ESTATE CAME INTO BEING AFTER
THE ADOPTION OF A SYSTEM OF TAXATION WHICH MIGHT WELL INCLUDE SUCH A
TRANSFER WITHIN ITS SCOPE.  FN4  SUBSEQUENTLY THE INCLUSION OF THE
ENTIRE VALUE IN THE TAXABLE ESTATE OF ONE SPOUSE WAS SUSTAINED WHERE
THE TENANCY BY THE ENTIRETIES ANTEDATED THE PASSAGE OF THE ESTATE TAX
ACTS.  FN5  THE DECISION WAS BASED UPON THE PECULIAR NATURE OF A
TENANCY BY THE ENTIRETIES AS EXPOUNDED IN TYLER V. UNITED STATES.  A
TRANSFER TAX MEASURED BY ONE-HALF THE VALUE OF AN ESTATE IN JOINT
TENANCY HAS BEEN APPROVED ALTHOUGH THE ESTATE WAS CREATED PRIOR TO THE
ADOPTION OF THE SYSTEM OF ESTATE TAXES; FN6  BUT THE COURT HAS NEVER
PASSED UPON THE VALIDITY OF SUCH A TAX MEASURED BY THE VALUE OF THE
ENTIRE JOINT ESTATE.  THERE ARE MARKED DIFFERENCES BETWEEN A TENANCY BY
THE ENTIRETIES AND A JOINT TENANCY IN RESPECT OF THE POWER OF ONE
TENANT TO DESTROY THE JOINT ESTATE, TO TRANSFER OR ENCUMBER HIS
INTEREST AND OTHERWISE OBTAIN THE FRUITS OF IT.  IN ORDER TO PREVENT
EVASION CONGRESS MAY INCLUDE THE VALUE OF THE ENTIRE ESTATE IN THE
GROSS ESTATE AS A MEASURE OF THE TAX WHERE THE ESTATE ORIGINATES AFTER
ADOPTION OF THE LAW.  FN7  BUT IT MAY NOT RETROACTIVELY APPLY SUCH
MEASURE TO AN ESTATE CREATED AT A TIME WHEN ITS CREATORS HAD NO REASON
TO EXPECT THAT SUCH A TAX WOULD BE LAID IN VIEW OF THE SETTLED RULES OF
PROPERTY. 

FN1  NICHOLS V. COOLIDGE, 274 U.S. 531; HELVERING V. HELMHOLTZ, 296
U.S. 93, 97; WHITE V. POOR, 296 U.S. 98, 102. 

FN2  SHWAB V. DOYLE, 258 U.S. 529; KNOX V. MCELLIGOTT, 258 U.S. 546;
UNION TRUST CO. V. WARDELL, 258 U.S. 537; LEVY V. WARDELL, 258 U.S.
542; LEWELLYN V. FRICK, 268 U.S. 238. 

FN3  TYLER V. UNITED STATES, 281 U.S. 497. 

FN4  PHILLIPS V. DIME TRUST & SAFE DEPOSIT CO., 284 U.S. 160. 

FN5  THIRD NATIONAL BANK & TRUST CO. V. WHITE, 287 U.S. 577;
HELVERING V. BOWERS, 303 U.S. 618. 

FN6  KNOX V. MCELLIGOTT, SUPRA; GWINN V. COMMISSIONER, 287 U.S. 224;
CAHN V. UNITED STATES, 297 U.S. 691. 

FN7  SEE NICHOLS V. COOLIDGE, SUPRA, P. 542; TYLER V. UNITED STATES,
SUPRA, P. 505; HELVERING V. CITY BANK CO., 296 U.S. 85, 90. 
..END :




















HALE V. BIMCO TRADING CO., 306 U.S. 375 


NO. 418.  ARGUED FEBRUARY 6, 1939.  - DECIDED FEBRUARY 27, 1939.  -
AFFIRMED. 


1.  PLAINTIFFS IN THE FEDERAL COURT SECURED A DECREE ENJOINING STATE
OFFICERS FROM ENFORCING A STATE STATUTE AS UNCONSTITUTIONAL.  A
PROCEEDING OF MANDAMUS, TO WHICH THEY WERE NOT PARTIES, WAS PENDING
BEFORE THE STATE SUPREME COURT IN WHICH THE SAME OFFICERS HAD BEEN
COMMANDED TO EXECUTE THE STATUTE, AS VALID.  FURTHER ACTION IN THE
MANDAMUS CASE WAS SUSPENDED BY THE STATE COURT TO AWAIT FINAL DECISION
OF THE CONSTITUTIONAL QUESTION BY THIS COURT ON APPEAL IN THE
INJUNCTION SUIT.  HELD THAT JUD.  CODE SEC. 265, 28 U.S.C. SEC. 379,
WHICH PROVIDES THAT A WRIT OF INJUNCTION SHALL NOT BE GRANTED BY ANY
COURT OF THE UNITED STATES TO STAY PROCEEDINGS IN ANY COURT OF A STATE,
IS INAPPLICABLE.  P. 378. 

2.  STATE LEGISLATION PROVIDING STANDARDS FOR ALL CEMENT SOLD OR USED
IN THE STATE, AND REQUIRING INSPECTION AND IMPOSING AN "INSPECTION FEE"
OF FIFTEEN CENTS PER HUNDREDWEIGHT - SIXTY TIMES THE COST OF INSPECTION
- IN RESPECT OF CEMENT IMPORTED FROM ABROAD, 30% OF THE CEMENT SOLD OR
USED IN THE STATE, WHILST REQUIRING NO INSPECTION AND EXACTING NO FEE
IN RESPECT OF DOMESTIC CEMENT - HELD INVALID UNDER THE COMMERCE CLAUSE
OF THE CONSTITUTION.  PP. 378, 380. 

HALE, CHAIRMAN, ET AL. V. BIMCO TRADING, INC., ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF FLORIDA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH
ENJOINED THE APPELLANTS, MEMBERS OF THE STATE ROAD DEPARTMENT OF
FLORIDA, FROM ENFORCING A FLORIDA STATUTE.  THE COURT BELOW FILED NO
OPINION. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE CASE IS HERE ON APPEAL, UNDER SEC. 266 OF THE JUDICIAL CODE (28
U.S.C. SEC. 380), TO REVIEW THE FINAL DECREE OF A THREE-JUDGE DISTRICT
COURT ENJOINING APPELLANTS, CONSTITUTING THE STATE ROAD DEPARTMENT OF
FLORIDA, FROM ENFORCING AGAINST APPELLEES RELEVANT PROVISIONS OF A
FLORIDA STATUTE.  ACTS 1937, C. 18995, FLA. COMP. GEN. LAWS, C. CVIII,
SEC. 4151(512)-(519).  THE STATUTE PROVIDES FOR THE INSPECTION OF ALL
IMPORTED CEMENT AND THE PAYMENT FOR SUCH INSPECTION OF A FEE OF FIFTEEN
CENTS PER HUNDRED POUNDS.  A MOTION TO DISMISS THE BILL HAVING BEEN
OVERRULED AND APPELLANTS HAVING ELECTED TO STAND ON THE BILL, A FINAL
DECREE WAS DULY ENTERED. 

AT THE THRESHOLD, A CHALLENGE TO THE JURISDICTION OF THE DISTRICT
COURT MUST BE MET.  IT DERIVES FROM SEC. 265 OF THE JUDICIAL CODE (28
U.S.C. SEC. 379), FOR IT IS CLAIMED THAT THE INJUNCTION IN EFFECT
STAYED PROCEEDINGS IN THE SUPREME COURT OF FLORIDA.  DISPOSITION OF
THIS CLAIM ENTAILS A QUICK NARRATIVE OF THE COURSE OF LITIGATION
DISCLOSED BY THE RECORD. 

ON JULY 29, 1937, A PETITION FOR MANDAMUS WAS FILED IN THE SUPREME
COURT OF FLORIDA BY THE STATE OF FLORIDA EX REL. FLORIDA PORTLAND
CEMENT COMPANY TO COMPEL APPELLANTS, MEMBERS OF THE STATE ROAD
DEPARTMENT, TO ENFORCE THE STATUTE IN QUESTION, AND ON THE SAME DAY AN
ALTERNATIVE WRIT OF MANDAMUS WAS ISSUED.  APPELLANTS' DEMURRER, RAISING
THE CONSTITUTIONALITY OF THE STATUTE, WAS OVERRULED ON OCTOBER 12,
1937.  STATE V. HALE, 129 FLA. 588; 176 SO. 577.  A PEREMPTORY WRIT OF
MANDAMUS, ON NOVEMBER 17, 1937, DIRECTED APPELLANTS TO ENFORCE THE
STATUTE.  MEANWHILE, ON NOVEMBER 4, 1937, APPELLEE BIMCO TRADING, INC.
FILED ITS BILL OF COMPLAINT IN THIS SUIT TO ENJOIN THE ENFORCEMENT OF
THE STATUTE AS FORBIDDEN, INTER ALIA, BY ARTICLE I, SEC. 8, CL. 3, AND
ARTICLE I, SEC. 10, CL. 2, OF THE CONSTITUTION.  ON NOVEMBER 27, 1937,
THE DISTRICT COURT GRANTED AN INTERLOCUTORY INJUNCTION RESTRAINING
APPELLANTS FROM ENFORCING THE STATUTE.  THEREAFTER, APPELLANTS MOVED
THE SUPREME COURT OF FLORIDA TO STAY THE MANDAMUS PROCEEDINGS PENDING
AN APPEAL TO THIS COURT FROM THE ORDER OF THE DISTRICT COURT, AND ON
DECEMBER 9, 1937, THE FLORIDA COURT ORDERED "THAT ALL FURTHER
PROCEEDINGS AND ACTIONS TAKEN PURSUANT TO THE PEREMPTORY WRIT OF
MANDAMUS HERETOFORE ISSUED IN THIS CAUSE, BE AND THE SAME IS HEREBY
STAYED UNTIL THE FINAL DECISION OF THE SUPREME COURT OF THE UNITED
STATES UPON THE CONSTITUTIONALITY OF THE ACT INVOLVED IN THIS CAUSE AND
UNTIL THE FURTHER ORDER OF THIS COURT."  THIS CAUSE WAS THEN PROSECUTED
WITH DISPATCH.  ON MARCH 8, 1938, APPELLANTS' MOTION TO DISMISS, WHICH
HAD BEEN FILED ON NOVEMBER 24, 1937, WAS OVERRULED, AND, APPELLANTS
REFUSING TO PLEAD OVER, THE DISTRICT COURT, ON JUNE 14, 1938, ENTERED A
FINAL DECREE PERMANENTLY ENJOINING THE ENFORCEMENT OF THE STATUTE. 

TO INVOKE SEC. 265 IN THESE CIRCUMSTANCES IS TO ASSERT THAT A
SUCCESSFUL MANDAMUS PROCEEDING IN A STATE COURT AGAINST STATE OFFICIALS
TO ENFORCE A CHALLENGED STATUTE, BARS INJUNCTIVE RELIEF IN A UNITED
STATES DISTRICT COURT AGAINST ENFORCEMENT OF THE STATUTE BY STATE
OFFICIALS AT THE SUIT OF STRANGERS TO THE STATE COURT PROCEEDINGS. 
THIS ASSUMES THAT THE MANDAMUS PROCEEDING BOUND THE INDEPENDENT SUITOR
IN THE FEDERAL COURT AS THOUGH HE WERE A PARTY TO THE LITIGATION IN THE
STATE COURT.  THIS, OF COURSE, IS NOT SO.  CHASE NATIONAL BANK V.
NORWALK, 291 U.S. 431, 441. 

APPELLANTS ARE IN EFFECT CONTENDING THAT NO PROCEEDINGS ARE HERE
AVAILABLE TO BRING THE CONSTITUTIONALITY OF THE FLORIDA STATUTE BEFORE
THIS COURT, ONCE THE STATE COURT DIRECTED ITS ENFORCEMENT.  THE SUPREME
COURT OF FLORIDA ITSELF MANIFESTED NO SUCH STRANGLING CONCEPTION OF
SEC. 265.  IT DID NOT DEEM THE PROCEEDINGS INITIATED BELOW AS A DENIAL
OF THE RIGHT OF WAY OF A STATE COURT THROUGH AN OBSTRUCTIVE EXERCISE OF
AUTHORITY BY A UNITED STATES COURT.  ON THE CONTRARY, IN STAYING "ALL
FURTHER PROCEEDINGS AND ACTIONS" UNTIL THIS COURT HAD FINALLY PASSED
UPON ITS CONSTITUTIONALITY, THE SUPREME COURT OF FLORIDA RECOGNIZED THE
PROPRIETY OF THE PRESENT PROCEEDINGS AS AN ORDERLY MODE FOR INVOKING
THE ULTIMATE JUDICIAL VOICE ON CONSTITUTIONAL ISSUES.  THEREFORE, SEC.
265 HAS NO RELEVANCE HERE.  THAT PROVISION IS AN HISTORICAL MECHANISM
(ACT OF MARCH 2, 1793, 1 STAT. 334, 335) FOR ACHIEVING HARMONY IN ONE
PHASE OF OUR COMPLICATED FEDERALISM BY AVOIDING NEEDLESS FRICTION
BETWEEN TWO SYSTEMS OF COURTS HAVING POTENTIAL JURISDICTION OVER THE
SAME SUBJECT-MATTER.  WELLS FARGO & CO. V. TAYLOR, 254 U.S. 175, 183. 
THE PRESENT RECORD PRESENTS NO OCCASION FOR BRINGING THIS SAFEGUARD
INTO PLAY. 

WE TURN, THEREFORE, TO THE MERITS. 

AFTER RECITING THAT "DURING THE PAST TWELVE MONTHS APPROXIMATELY
THIRTY PER CENTUM (30%) OF ALL CEMENT SOLD AND USED IN FLORIDA WAS
MANUFACTURED IN FOREIGN COUNTRIES AND IMPORTED"; THAT CEMENT IS "AN
INTEGRAL PART OF THE CONSTRUCTION" OF "LARGE NUMBERS" OF BUILDINGS;
THAT "MUCH OF THE FOREIGN MANUFACTURED CEMENT  ...  BROUGHT INTO THE
STATE OF FLORIDA HAS BEEN OF INFERIOR QUALITY"; THAT "THE IMPORTATION
...  AND  ...  USE OF FOREIGN CEMENT NOT ONLY JEOPARDIZES PUBLIC SAFETY
BUT AMOUNTS TO UNFAIR COMPETITION BEING FORCED ON THIS GREAT INDUSTRY
IN FLORIDA," THE LEGISLATURE OF THAT STATE, IN 1937, ENACTED THE
STATUTE IN CONTROVERSY.  SECTION 1 AUTHORIZES THE STATE ROAD DEPARTMENT
OF FLORIDA "TO FIX A MINIMUM STANDARD FOR ALL CEMENT OFFERED FOR SALE
OR SOLD OR USED" WITHIN THE STATE.  SECTION 2 ENFORCES OBEDIENCE TO
STANDARDS OF QUALITY THUS TO BE SET BY THE DEPARTMENT BY PROVISIONS FOR
INSPECTION AND FOR EXACTION OF AN INSPECTION FEE OF FIFTEEN CENTS PER
HUNDRED-WEIGHT.  IT IS THIS SECTION WHICH GIVES THE STATUTE TEETH.  BUT
THIS SECTION - THE SCHEME FOR INSPECTION AND FOR THE INSPECTION FEE -
APPLIES ONLY TO "CEMENT IMPORTED OR BROUGHT INTO THE STATE OF FLORIDA
FROM ANY FOREIGN COUNTRY  ...  "  THE STATUTE THUS RENDERS THE 70%
DOMESTIC CEMENT IMMUNE FROM ITS REQUIREMENTS OF INSPECTION AND ITS
ATTENDANT FEE.  ACCORDING TO THE UNCONTESTED ALLEGATION OF THE BILL OF
COMPLAINT, THIS INSPECTION FEE IS "SIXTY TIMES THE ACTUAL COST OF
INSPECTION."  APART FROM THIS ALLEGATION, THE GOVERNMENT, APPEARING AS
AMICUS AND MORE PARTICULARLY ON BEHALF OF THE NATIONAL INTEREST
REPRESENTED BY THE TRADE AGREEMENTS ACT (48 STAT. 943; 19 U.S.C. SEC.
1351), GIVES PERSPECTIVE TO THE SIZE OF THE FIFTEEN CENT FEE BY
COMPARING IT WITH THE DUTY OF SIX CENTS PER ONE HUNDRED POUNDS FIXED BY
THE HAWLEY-SMOOT ACT OF 1930(46 STAT. 590, 602; 19 U.S.C. SEC. 1001,
PAR. 205(B)), AND WITH THE DUTY OF FOUR AND ONE-HALF CENTS FIXED BY THE
BELGIAN TRADE AGREEMENT OF 1935(49 STAT. 3680, 3691; 19 U.S.C. SEC.
1351). 

AS GROUNDS FOR THIS DISCRIMINATION IN THE INCIDENCE OF AN OBVIOUSLY
ONEROUS EXACTION AS BETWEEN FOREIGN AND DOMESTIC CEMENT, THE PREAMBLE
OF THE STATUTE STATES THAT "IT IS OF PARAMOUNT IMPORTANCE TO THE PUBLIC
SAFETY THAT ONLY CEMENT MEASURING UP TO A MINIMUM STANDARD SHOULD BE
OFFERED FOR SALE, SOLD OR USED IN THE STATE OF FLORIDA," AND THAT THE
IMPORTATION "AMOUNTS TO UNFAIR COMPETITION BEING FORCED ON THIS GREAT
INDUSTRY IN FLORIDA."  SO FAR AS PUBLIC SAFETY DEMANDS CERTAIN
STANDARDS IN THE QUALITY OF CEMENT, SUCH SAFETY IS DEPENDENT ON
ASSURANCE OF THAT QUALITY BY APPROPRIATE INSPECTION NO LESS OF THE 70%
DOMESTIC CEMENT THAN OF THE 30% OBTAINED FROM ABROAD.  THAT NO FLORIDA
CEMENT NEEDS ANY INSPECTION WHILE ALL FOREIGN CEMENT REQUIRES
INSPECTION AT A COST OF FIFTEEN CENTS PER HUNDREDWEIGHT IS TOO VIOLENT
AN ASSUMPTION TO JUSTIFY THE DISCRIMINATION HERE DISCLOSED.  THE OTHER
JUSTIFICATION - THE COMPETITIVE EFFECT OF FOREIGN CEMENT IN THE FLORIDA
MARKET - IS RATHER A CANDID ADMISSION THAT THE VERY PURPOSE OF THE
STATUTE IS TO KEEP OUT FOREIGN GOODS.  THE SUPREME COURT OF FLORIDA
GIVES NO REASON RESTING IN LOCAL CONDITIONS FOR WHAT APPEARS TO BE A
TRANSPARENT DISCRIMINATION IN THE IMPOSITION OF HEAVY INSPECTION FEES
AS BETWEEN IMPORTED AND DOMESTIC CEMENT, AND NONE HAS BEEN OFFERED BY
APPELLANTS.  THE CONTEXT OF A PARTICULAR STATUTE MAY JUSTIFY
DISTINCTIVE TREATMENT OF PHASES OF INTERSTATE OR FOREIGN COMMERCE.  THE
CIRCUMSTANCES MAY NEGATIVE APPARENT DISCRIMINATION IN THE DIFFERENCE OF
TREATMENT.  SUCH WAS THE SITUATION IN MCLEAN & CO. V. DENVER & RIO
GRANDE R. CO., 203 U.S. 38, REFERRED TO BY THE FLORIDA SUPREME COURT. 
BUT THIS IS NOT THAT KIND OF A CASE.  ACCORDING THE STATUTE EVERY
PRESUMPTION OF VALIDITY, NO REASONABLE CONJECTURE CAN HERE OVERCOME THE
CALCULATED DISCRIMINATION AGAINST FOREIGN COMMERCE. 

SUCH ASSUMPTION OF NATIONAL POWERS BY A STATE HAS, EVER SINCE MARCH
12, 1827(BROWN V. MARYLAND, 12 WHEAT.  419), BEEN FOUND TO BE IN
COLLISION WITH THE CONSTITUTION.  IT CAN NEVER BE PLEASANT TO
INVALIDATE THE ENACTMENT OF A STATE, PARTICULARLY WHEN IT BEARS THE
IMPRIMATUR OF CONSTITUTIONALITY BY THE HIGHEST COURT OF THE STATE.  BUT
IT WOULD NOT BE EASY TO IMAGINE A STATUTE MORE CLEARLY DESIGNED THAN
THE PRESENT TO CIRCUMVENT WHAT THE COMMERCE CLAUSE FORBIDS.  COOK V.
PENNSYLVANIA, 97 U.S. 566; VOIGHT V. WRIGHT, 141 U.S. 62.  THIS MAKES
IT UNNECESSARY TO CONSIDER THE OBJECTIONS URGED UNDER ARTICLE I, SEC.
10, CL. 2. 

THE DECREE OF THE DISTRICT COURT IS AFFIRMED. 
..END :





















KEIFER & KEIFER V. R.F.C., 306 U.S. 381 


NO. 364.  ARGUED JANUARY 31, 1939, FEBRUARY 1, 1939.  - DECIDED FEBRUARY
27, 1939.  - 97 F.2D 812, REVERSED. 


1.  A REGIONAL AGRICULTURAL CREDIT CORPORATION, CHARTERED BY THE
RECONSTRUCTION FINANCE CORPORATION BY AUTHORITY OF SEC. 201(E) OF THE
EMERGENCY RELIEF AND CONSTRUCTION ACT OF 1932, AND WHICH UNDER THAT
STATUTE IS GOVERNMENT-FINANCED AND MANAGED AND EMPOWERED TO MAKE LOANS
TO FARMERS AND STOCKMEN FOR AGRICULTURAL PURPOSES OR FOR RAISING AND
MARKETING LIVESTOCK - HELD SUBJECT TO SUIT.  PP. 392, ET SEQ. 

NEITHER THE STATUTE NOR THE CHARTER EXPLICITLY RENDERED THE CREDIT
CORPORATION AMENABLE TO SUIT; BUT AMONG THE CORPORATE POWERS GRANTED
THE FINANCE CORPORATION BY THE ACT CREATING IT WAS AUTHORITY "TO SUE
AND BE SUED, TO COMPLAIN AND TO DEFEND, IN ANY COURT OF COMPETENT
JURISDICTION, STATE OR FEDERAL." 

2.  WHETHER A GOVERNMENTAL CORPORATION IS ENDOWED WITH THE
GOVERNMENT'S IMMUNITY FROM SUIT DEPENDS UPON THE CONGRESSIONAL PURPOSE
IN CREATING IT.  P. 388. 

IMMUNITY IS NOT NECESSARILY TO BE INFERRED FROM THE FACT THAT THE
CORPORATION IS DOING THE GOVERNMENT'S WORK OR FROM THE OMISSION OF THE
CONVENTIONAL SUE-AND-BE-SUED CLAUSE FROM ITS CHARTER. 

3.  LIABILITY TO SUIT OF REGIONAL AGRICULTURAL CREDIT CORPORATIONS,
CHARTERED THROUGH THE RECONSTRUCTION FINANCE CORPORATION, IS TO BE
INFERRED FROM THE NUMEROUS INSTANCES IN WHICH CONGRESS, WHEN CREATING
OTHER CORPORATIONS FOR PURPOSES NOT RELEVANTLY DIFFERENT FROM THOSE OF
THE CREDIT CORPORATIONS, HAS EXPRESSLY INCLUDED AUTHORITY TO SUE AND BE
SUED.  THIS UNIFORM PRACTICE REVEALS A DEFINITE POLICY WHICH SHOULD BE
GIVEN HOSPITABLE SCOPE.  FAILURE TO INCLUDE EXPRESS AUTHORITY TO SUE
AND BE SUED IN THE EXCEPTIONAL CASE OF THE CREDIT CORPORATIONS IS
EXPLAINED BY AN ASSUMPTION ON THE PART OF CONGRESS THAT THAT AUTHORITY
WOULD PASS TO THEM FROM THE RECONSTRUCTION CORPORATION ALREADY ENDOWED
WITH IT.  P. 390. 

4.  RECOVERY AGAINST A REGIONAL AGRICULTURAL CREDIT CORPORATION FOR
DAMAGES RESULTING FROM ITS NEGLIGENCE IN FAILING TO PROVIDE PROPER CARE
FOR LIVESTOCK DELIVERED TO IT UNDER A CONTRACT OF BAILMENT, MAY BE HAD
IN CONTRACT.  P. 394. 

5.  IN THE LIGHT OF RECENT CONGRESSIONAL LEGISLATION, LIABILITY OF A
GOVERNMENT CORPORATION EMPOWERED GENERALLY "TO SUE AND BE SUED" IS NOT
CONFINED TO SUITS SOUNDING ONLY IN CONTRACT.  P. 396. 

KEIFER & KEIFER V. RECONSTRUCTION FINANCE CORP. AND REGIONAL
AGRICULTURAL CREDIT CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 305 U.S. 588, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT (22 F.SUPP.  918) DISMISSING ON DEMURRER AN ACTION
FOR DAMAGES AGAINST THE TWO FEDERAL CORPORATIONS ABOVE NAMED.  THE
QUESTION BROUGHT UP BY THE CERTIORARI CONCERNS ONLY THE CLAIM ADVANCED
FOR THE REGIONAL AGRICULTURAL CREDIT CORPORATION THAT IT IS IMMUNE FROM
SUIT. 

CONGRESSIONAL INTENT THAT THE "REGIONAL" BE SUBJECT TO SUIT IS
EXPRESSED BY SELECTION OF A CORPORATION ITSELF SUBJECT TO SUIT TO FORM
THE "REGIONAL."  CASPER V. REGIONAL AGRICULTURAL CREDIT CORP., 202
MINN. 433. 

SUCH INTENT IS ALSO MANIFESTED BY THE DIRECTION THAT THE "REGIONAL"
BE FORMED AS A CORPORATION.  BANK OF U.S. V. PLANTERS BANK, 9 WHEAT. 
904; FEDERAL SUGAR REFINING CO. V. U.S. SUGAR EQ. BOARD, 268 F. 575;
SLOAN SHIPYARDS CORP. V. U.S. SHIPPING BOARD, 258 U.S. 549; U.S.
SHIPPING BOARD V. TABAS, 22 F.2D 398; U.S. SHIPPING BOARD V. EICHBERG,
14 F.2D 248; UNITED STATES V. MCCARL, 275 U.S. 1; NORTH DAKOTA-MONTANA
WHEAT ASSN. V. UNITED STATES, 66 F.2D 573; PHILLIPS V. U.S. GRAIN
CORP., 279 F. 244; U.S. GRAIN CORP. V. PHILLIPS, 261 U.S. 106; SALAS V.
UNITED STATES, 234 F. 842; PANAMA RY. CO. V. CURRAN, 256 F. 768; PANAMA
RY. CO. V. MINNIX, 282 F. 47; OLSON V. U.S. SPRUCE CORP., 276 U.S. 462;
UNITED STATES V. DEUTSCHES KALISYNDIKAT GESELLSCHAFT, 31 F.2D 199;
BECKER STEEL CO. V. CUMMINGS, 296 U.S. 74. 

SUCH INTENT IS IMPLIED IN THE NATURE OF THE BUSINESS THE "REGIONAL"
WAS DIRECTED TO TRANSACT.  TITLE 15, SEC. 605B (E) U.S.C.; C. 520, SEC.
201(E), 47 STAT. 713; BANK OF U.S. V. PLANTERS BANK, 9 WHEAT.  904;
U.S. SHIPPING BOARD V. HARWOOD, 281 U.S. 519; STANDARD OIL CO. V.
UNITED STATES, 25 F.2D 480; HOPKINS V. CLEMSON AGRICULTURAL COLLEGE,
221 U.S. 636; CENTRAL MARKET V. KING, 132 NEB. 380; 302 U.S. 687;
FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229; NORTH DAKOTA V. OLSON, 33
F.2D 848; GROSS V. KENTUCKY BOARD, 105 KY. 840. 

SUCH INTENT IS EXPRESSED BY INCLUSION OF THE WORD "CORPORATION" IN
THE NAME OF THE RESPONDENT.  DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT. 
518; MARTIN V. KENTUCKY LANDS INV. CO., 146 KY. 525; BARROW S.S. CO. V.
KANE, 170 U.S. 100; TULARE IRRIGATION DIST. V. SHEPARD, 185 U.S. 1;
GILLIGAN V. JOHN GILLIGAN CO., 94 NEB. 437. 

IMMUNITY OF THE SOVEREIGN FROM SUIT DOES NOT EXTEND TO AGENTS, NO
AGENT BEING AN AGENT FOR THE PURPOSE OF COMMITTING A TORT.  MCCOMB V.
U.S. HOUSING CORP., 264 F. 589. 

INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT, OF WHICH REGIONAL
UNQUESTIONABLY IS ONE, ARE IMMUNE FROM SUIT, AS WELL AS THE UNITED
STATES ITSELF, LYNCH V. UNITED STATES, 292 U.S. 571, 582; CF.
KAWANANAKOA V. POLYBLANK, 205 U.S. 349, UNLESS BY STATUTE CONGRESS HAS
SUBJECTED THEM TO SUIT.  FEDERAL LANK BANK V. PRIDDY, 295 U.S. 229,
231; MISSOURI PACIFIC R. CO. V. AULT, 256 U.S. 554; THE LAKE MONROE,
250 U.S. 246, 249; CF. THE WESTERN MAID, 257 U.S. 419, 433.  THERE IS
NO DISTINCTION BETWEEN SUITS AGAINST THE GOVERNMENT AND SUITS AGAINST
THE PROPERTY OF THE UNITED STATES.  STANLEY V. SCHWALBY, 147 U.S. 508,
512; CARR V. UNITED STATES, 98 U.S. 433; EASTERN TRANSP.  CO. V. UNITED
STATES, 272 U.S. 675, 686; UNITED STATES V. GRIFFIN, 303 U.S. 226, 239;
UNITED STATES V. MICHEL, 282 U.S. 656, 659; PRICE V. UNITED STATES, 174
U.S. 373, 375-376. 

CONGRESS HAS NOT EXPRESSLY SUBJECTED REGIONALS TO SUIT EITHER IN THE
STATUTE, ITS HISTORY, OR IN THE CHARTER. 

IMMUNITY CAN NOT BE DESTROYED BY THE MERE INFERENCE FROM THE
SUABILITY OF R.F.C.  MOREOVER, THE FACT THAT CONGRESS AUTHORIZED
CREATION OF REGIONALS BY R.F.C. INSTEAD OF BY THE FARM CREDIT
ADMINISTRATION OR SOME OTHER GOVERNMENT AGENCY NOT SUBJECT TO SUIT DOES
NOT SUPPORT SUCH AN INFERENCE, BECAUSE THERE IS NO PARTICULAR OR
SPECIAL RELATION BETWEEN THE POWER OF R.F.C. TO CREATE REGIONALS AND
ITS POWER TO SUE AND BE SUED.  THERE IS NO MORE REASON TO INFER THAT
CONGRESS INTENDED THAT THIS ATTRIBUTE OF SUABILITY SHOULD PASS FROM
R.F.C. TO REGIONALS THAN TO INFER THAT ANY OF THE OTHER POWERS OF
R.F.C., SUCH AS ITS POWER TO CREATE REGIONALS, PASSED TO REGIONALS. 

THE GENERAL RULE THAT A GRANT OF CORPORATE EXISTENCE IMPLIES
LIABILITY TO SUIT HAS NO APPLICATION TO CORPORATE INSTRUMENTALITIES OF
THE FEDERAL GOVERNMENT WHICH ARE IMMUNE FROM SUIT UNLESS THIS SOVEREIGN
IMMUNITY IS ABANDONED BY STATUTE CLEARLY AND EXPRESSLY AND NOT BY
IMPLICATION.  THE PRESUMPTION OF IMMUNITY FROM SUIT (EASTERN TRANSP. 
CO. V. UNITED STATES, 272 U.S. 675, 686) AND THE SOVEREIGN CHARACTER OF
THIS IMMUNITY FORBID THE VIEW THAT THE MERE CORPORATE FORM OF THE
GOVERNMENT INSTRUMENTALITY IMPLIES THAT CONGRESS INTENDED TO SUBJECT IT
TO SUIT. 

IN CASES RELIED ON BY PETITIONER THE CORPORATIONS WERE INCORPORATED
UNDER STATUTES CONTAINING EXPRESS PROVISIONS FOR SUABILITY (SLOAN
SHIPYARDS V. U.S. FLEET CORP., 258 U.S. 549) OR THE GOVERNMENT WAS
MERELY AN INCORPORATOR OR STOCKHOLDER IN A CORPORATION FORMED UNDER
GENERAL LAWS GIVING THE CORPORATION POWER TO SUE AND BE SUED.  UNITED
STATES BANK V. PLANTERS BANK, 9 WHEAT.  904. 

NOTHING IN THE BUSINESS WHICH REGIONALS WERE DIRECTED TO TRANSACT AND
NOTHING IN THE PRESENT TRANSACTION INDICATES THAT CONGRESS INTENDED
THAT REGIONALS, ENGAGED IN A PUBLIC AND GOVERNMENTAL ACTIVITY, SHOULD
BE SUBJECT TO SUIT. 

THE PETITIONER'S ARGUMENT THAT, EVEN IN THE ABSENCE OF AN EXPRESSED
INTENT, THE SOVEREIGN'S INTENT TO WAIVE IMMUNITY FROM SUIT MAY BE
INFERRED FROM THE TYPE OF ACTIVITY INVOLVED, WHETHER GOVERNMENTAL OR
PROPRIETARY, MAY BE APPLICABLE TO INSTRUMENTALITIES OF A STATE
GOVERNMENT, BUT HAS NO APPLICATION TO INSTRUMENTALITIES OF THE FEDERAL
GOVERNMENT WHICH ENGAGE ONLY IN GOVERNMENTAL ACTIVITIES AND ACTIVITIES
INCIDENTAL THERETO.  HELVERING V. GERHARDT, 304 U.S. 405, 411; NEW YORK
EX REL. ROGERS V. GRAVES, 299 U.S. 401, 408; SMITH V. KANSAS CITY TITLE
CO., 255 U.S. 180, 211; OSBORN V. UNITED STATES BANK, 9 WHEAT.  738. 
FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229, DISTINGUISHED. 

CONGRESS HAS NOT SUBJECTED REGIONAL TO SUIT IN TORT. 

A JUDGMENT AGAINST REGIONAL WOULD COMPEL IT TO PAY OUT A SUM OF MONEY
FROM THE PUBLIC FUNDS IN THE TREASURY OF THE UNITED STATES.  SUCH A
JUDGMENT WOULD HAVE THE SAME EFFECT AS IF IT WERE RENDERED DIRECTLY
AGAINST THE UNITED STATES FOR THE AMOUNT SPECIFIED.  THE JURISDICTION
OF A COURT OVER SUCH AN ACTION IS GOVERNED BY THE SAME RULE WHICH
DETERMINES THE COURT'S JURISDICTION OVER A SUIT AGAINST THE GOVERNMENT
ITSELF.  SMITH V. REEVES, 178 U.S. 436, 439. 

THE PRESENT CASE IS AN ACTION FOR TORT, AND DOES NOT REST UPON A
CONTRACT, EXPRESS OR IMPLIED.  AN ACTION WILL NOT LIE AGAINST THE
UNITED STATES FOR THE MISFEASANCE OR NON-FEASANCE OF ITS OFFICERS OR
AGENTS.  GIBBONS V. UNITED STATES, 8 WALL.  269, 274; LANGFORD V.
UNITED STATES, 101 U.S. 341, 345; SCHILLINGER V. UNITED STATES, 155
U.S. 163, 169; RUSSELL V. UNITED STATES, 182 U.S. 516, 530; HARLEY V.
UNITED STATES, 198 U.S. 229, 234; PEABODY V. UNITED STATES, 231 U.S.
530, 539. 

THE STATUTORY LIABILITY TO SUIT MUST BE REGARDED AS CONFINED TO
MATTERS WITHIN THE SCOPE OF THE CORPORATE POWERS OF THE GOVERNMENT
AGENCY - NOT UNAUTHORIZED WRONGS UPON INDIVIDUALS.  LYLE V. NATIONAL
HOME, 170 F. 842; OVERHOLSER V. NATIONAL HOME, 68 OHIO ST. 236.  THE
RULE OF THE NATIONAL HOME CASES HAS RECENTLY BEEN APPLIED TO ACTIONS IN
TORT AGAINST THE HOME OWNERS' LOAN CORPORATION, IN HENSON V. EICHORN,
24 F.SUPP.  842; PRATO V. HOME OWNERS' LOAN CORP., 24 F.SUPP.  844;
CONTRA, HERMAN V. HOME OWNERS' LOAN CORP., 120 N.J.L. 437; PENNEL V.
HOME OWNERS' LOAN CORP., 21 F.SUPP.  497; AND SEE POSEY V. TENNESSEE
VALLEY AUTHORITY, 93 F.2D 726. 

IN ENGLAND IT IS SETTLED LAW THAT CORPORATIONS ESTABLISHED BY THE
GOVERNMENT FOR GOVERNMENTAL PURPOSES, DERIVING THEIR FUNDS ENTIRELY
FROM THE GOVERNMENT, ARE "SERVANTS OF THE CROWN," AND "THAT THE
PRESENCE OR ABSENCE OF INCORPORATION MADE NO DIFFERENCE TO THE
PROPOSITION THAT THE HEADS OF GOVERNMENT DEPARTMENTS ARE NOT
RESPONSIBLE FOR THE (TORTIOUS) ACTS OF SUBORDINATES."  ROPER V.
COMMISSIONERS, (1915), 1 K.B. 45, 52. 

THE LEGISLATURE DOES NOT CONSENT TO ACTIONS IN TORT AGAINST A STATE
GOVERNMENTAL CORPORATION, MERELY BY CONFERRING UPON THE CORPORATION THE
POWER TO SUE AND BE SUED.  WHITE V. ALABAMA INSANE HOSPITAL, 138 ALA.
479; LEAVELL V. WESTERN KENTUCKY ASYLUM, 122 KY. 213; MAIA'S ADM. V.
EASTERN STATE HOSPITAL, 97 VA. 507; SMITH V. NEW YORK, 227 N.Y. 405;
YOLO V. MODESTO IRRIGATION DIST., 216 CAL. 274; BUSH V. HIGHWAY
COMMISSION, 329 MO. 843. 

MR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT. 

THE COURT TOOK THIS CASE FOR REVIEW BECAUSE AN IMPORTANT QUESTION OF
FEDERAL LAW CALLED FOR SETTLEMENT, PARTICULARLY IN VIEW OF A CONFLICT
BETWEEN THE COURT BELOW AND THE SUPREME COURT OF MINNESOTA.  CASPER V.
REGIONAL AGRICULTURAL CREDIT CORP., 202 MINN. 433; 278 N.W. 896.  THE
QUESTION IS WHETHER A REGIONAL AGRICULTURAL CREDIT CORPORATION, IN THE
CIRCUMSTANCES PRESENTLY TO BE STATED, IS IMMUNE FROM SUIT. 

ON JULY 21, 1932, CONGRESS ENLARGED THE POWERS OF THE RECONSTRUCTION
FINANCE CORPORATION (HEREAFTER CALLED "RECONSTRUCTION") ESTABLISHED
EARLY THAT YEAR, ACT OF JANUARY 22, 1932, C. 8, 47 STAT. 5, BY
AUTHORIZING IT, AMONG OTHER THINGS, TO CREATE REGIONAL AGRICULTURAL
CREDIT CORPORATIONS "IN ANY OF THE TWELVE FEDERAL LAND-BANK
DISTRICTS."  EMERGENCY RELIEF AND CONSTRUCTION ACT OF 1932, SEC.
201(E), C. 520, 47 STAT. 709, 713.  EACH CORPORATION WAS TO HAVE A PAID
UP CAPITAL OF NOT LESS THAN $3,000,000 TO BE SUBSCRIBED FOR BY
RECONSTRUCTION, WAS TO BE MANAGED BY APPOINTEES OF RECONSTRUCTION, AND
WAS EMPOWERED TO MAKE LOANS TO FARMERS AND STOCKMEN FOR AGRICULTURAL
PURPOSES OR FOR RAISING AND MARKETING LIVESTOCK.  ACCORDINGLY, ON
SEPTEMBER 10, 1932, RECONSTRUCTION CHARTERED THE REGIONAL AGRICULTURAL
CREDIT CORPORATION OF SIOUX CITY, IOWA (HEREAFTER CALLED "REGIONAL"). 
REGIONAL, IN DUE EXERCISE OF ITS POWERS, ENTERED INTO SO-CALLED CATTLE
FEEDING CONTRACTS, WHEREBY IT UNDERTOOK TO PROVIDE SUFFICIENT FEED AND
WATER FOR LIVESTOCK WITH APPROPRIATE SECURITY FOR RENDERING THESE
SERVICES.  FAILURE THROUGH NEGLIGENCE TO PROVIDE PROPER CARE FOR CATTLE
DELIVERED UNDER THIS ARRANGEMENT, WITH RESULTING DAMAGE TO THE
LIVESTOCK, IS THE BASIS OF THIS SUIT BROUGHT BY PETITIONER, PLAINTIFF
BELOW, AGAINST RECONSTRUCTION AND REGIONAL.  BOTH DEFENDANTS DEMURRED
ON SEVERAL GROUNDS, OF WHICH CHALLENGE TO THE JURISDICTION OF THE COURT
IS ALONE PERTINENT HERE.  THE DISTRICT COURT SUSTAINED THE DEMURRERS
AND DISMISSED THE SUIT.  22 F.SUPP.  918.  THE COURT OF APPEALS
AFFIRMED, HOLDING FOR RECONSTRUCTION BECAUSE ITS CONTROL OF REGIONAL
HAD BEEN TRANSFERRED BY EXECUTIVE ORDER (NO. 6084, DATED MARCH 27,
1933, EFFECTIVE MAY 27, 1933) TO THE FARM CREDIT ADMINISTRATION PRIOR
TO THE ALLEGED CAUSE OF ACTION, AND FOR REGIONAL BECAUSE IT WAS FOUND
IMMUNE FROM SUIT.  97 F.2D 812.  CERTIORARI WAS GRANTED, DIRECTED
SOLELY TO THE LATTER ISSUE.  305 U.S. 588. 

THE STARTING POINT OF INQUIRY IS THE IMMUNITY FROM UNCONSENTED SUIT
OF THE GOVERNMENT ITSELF.  AS TO THE STATES, LEGAL IRRESPONSIBILITY WAS
WRITTEN INTO THE ELEVENTH AMENDMENT; AS TO THE UNITED STATES, IT IS
DERIVED BY IMPLICATION.  MONACO V. MISSISSIPPI, 292 U.S. 313, 321.  FOR
PRESENT PURPOSES IT IS ACADEMIC TO CONSIDER WHETHER THIS EXCEPTIONAL
FREEDOM FROM LEGAL RESPONSIBILITY RESTS ON THE THEORY THAT THE UNITED
STATES IS DEEMED THE INSTITUTIONAL DESCENDANT OF THE CROWN, ENJOYING
ITS IMMUNITY BUT NOT ITS HISTORIC PREROGATIVES, CF. LANGFORD V. UNITED
STATES, 101 U.S. 341, 343, OR ON A METAPHYSICAL DOCTRINE "THAT THERE
CAN BE NO LEGAL RIGHT AS AGAINST THE AUTHORITY THAT MAKES THE LAW ON
WHICH THE RIGHT DEPENDS."  KAWANANAKOA V. POLYBLANK, 205 U.S. 349,
353.  BUT BECAUSE THE DOCTRINE GIVES THE GOVERNMENT A PRIVILEGED
POSITION, IT HAS BEEN APPROPRIATELY CONFINED.  FN1 

THEREFORE, THE GOVERNMENT DOES NOT BECOME THE CONDUIT OF ITS IMMUNITY
IN SUITS AGAINST ITS AGENTS OR INSTRUMENTALITIES MERELY BECAUSE THEY DO
ITS WORK.  UNITED STATES V. LEE, 106 U.S. 196, 213, 221; SLOAN
SHIPYARDS V. U. S. FLEET CORP., 258 U.S. 549, 567.  FOR MORE THAN A
HUNDRED YEARS CORPORATIONS HAVE BEEN USED AS AGENCIES FOR DOING WORK OF
THE GOVERNMENT.  CONGRESS MAY CREATE THEM "AS APPROPRIATE MEANS OF
EXECUTING THE POWERS OF GOVERNMENT, AS, FOR INSTANCE,  ...  A RAILROAD
CORPORATION FOR THE PURPOSE OF PROMOTING COMMERCE AMONG THE STATES." 
LUXTON V. NORTH RIVER BRIDGE CO., 153 U.S. 525, 529.  BUT THIS WOULD
NOT CONFER ON SUCH CORPORATIONS LEGAL IMMUNITY EVEN IF THE CONVENTIONAL
TO-SUE-AND-BE-SUED CLAUSE WERE OMITTED.  IN THE CONTEXT OF MODERN
THOUGHT AND PRACTICE REGARDING THE USE OF CORPORATE FACILITIES, SUCH A
CLAUSE IS NOT A RITUALISTIC FORMULA WHICH ALONE CAN ENGENDER LIABILITY
LIKE UNTO INDISPENSABLE WORDS OF EARLY COMMON LAW, SUCH AS "WARRANTIZO"
OR "TO A AND HIS HEIRS," FOR WHICH THERE WERE NO SUBSTITUTES AND
WITHOUT WHICH DESIRED LEGAL CONSEQUENCES COULD NOT BE WROUGHT. 
LITTLETON, TENURES (WAMBAUGH ED.)  SECS. 1, 733.    CONGRESS MAY, OF
COURSE, ENDOW A GOVERNMENTAL CORPORATION WITH THE GOVERNMENT'S
IMMUNITY.  BUT ALWAYS THE QUESTION IS:  HAS IT DONE SO?  FEDERAL LAND
BANK V. PRIDDY, 295 U.S. 229, 231.  CF. HELVERING V. GERHARDT, 304 U.S.
405, 411-412N.  THIS IS OUR PRESENT PROBLEM.  HAS CONGRESS ENDOWED
REGIONAL WITH IMMUNITY IN THE CIRCUMSTANCES WHICH ENVELOPED ITS
CREATION?  IT IS NOT A TEXTUAL PROBLEM; FOR CONGRESS HAS NOT EXPRESSED
ITS WILL IN WORDS.  CONGRESS MAY NOT EVEN HAVE HAD ANY CONSCIOUSNESS OF
INTENTION.  THE CONGRESSIONAL WILL MUST BE DIVINED, AND BY A PROCESS OF
INTERPRETATION WHICH, IN EFFECT, IS THE ASCERTAINMENT OF POLICY
IMMANENT NOT MERELY IN THE SINGLE STATUTE FROM WHICH FLOW THE RIGHTS
AND RESPONSIBILITIES OF REGIONAL, BUT IN A SERIES OF STATUTES UTILIZING
CORPORATIONS FOR GOVERNMENTAL PURPOSES AND DRAWING SIGNIFICANCE FROM
DOMINANT CONTEMPORANEOUS OPINION REGARDING THE IMMUNITY OF GOVERNMENTAL
AGENCIES FROM SUIT. 

BECAUSE OF THE ADVANTAGES ENJOYED BY THE CORPORATE DEVICE COMPARED
WITH CONVENTIONAL EXECUTIVE AGENCIES, THE EXIGENCIES OF WAR AND THE
ENLARGED SCOPE OF GOVERNMENT IN ECONOMIC AFFAIRS HAVE GREATLY EXTENDED
THE USE OF INDEPENDENT CORPORATE FACILITIES FOR GOVERNMENTAL ENDS.  FN2
IN SPAWNING THESE CORPORATIONS DURING THE PAST TWO DECADES, CONGRESS
HAS UNIFORMLY INCLUDED AMENABILITY TO LAW.  CONGRESS HAS PROVIDED FOR
NOT LESS THAN FORTY OF SUCH CORPORATIONS DISCHARGING GOVERNMENTAL
FUNCTIONS, AND WITHOUT EXCEPTION THE AUTHORITY TO-SUE-AND-BE-SUED WAS
INCLUDED.  FN3  SUCH A FIRM PRACTICE IS PARTLY AN INDICATION OF THE
PRESENT CLIMATE OF OPINION WHICH HAS BROUGHT GOVERNMENTAL IMMUNITY FROM
SUIT INTO DISFAVOR, PARTLY IT REVEALS A DEFINITE ATTITUDE ON THE PART
OF CONGRESS WHICH SHOULD BE GIVEN HOSPITABLE SCOPE.  FN4  IT IS
NOTEWORTHY THAT THE OLDEST SURVIVING GOVERNMENT CORPORATION - THE
SMITHSONIAN INSTITUTION - HAS SEVERAL TIMES BEEN IN THE LAW COURTS,
EVEN IN THE ABSENCE OF EXPLICIT AUTHORITY AND ALTHOUGH THE GENERAL
FEELING REGARDING GOVERNMENTAL IMMUNITY WAS VERY DIFFERENT IN 1846 FROM
WHAT IT HAS BECOME IN OUR OWN DAY.  9 STAT. 102.  SMITHSONIAN INSTITUTE
V. MEECH, 169 U.S. 398; SMITHSONIAN INSTITUTE V. ST. JOHN, 214 U.S.
19. 

ONLY TWO INSTANCES HAVE BEEN BROUGHT TO THE COURT'S ATTENTION IN
WHICH CONGRESS HAS NOT EXPLICITLY RENDERED ITS RECENT CORPORATE
CREATIONS AMENABLE TO SUIT.  THESE ARE THE REGIONALS AND THE FEDERAL
SAVINGS AND LOAN ASSOCIATIONS.  48 STAT. 128, 132-134.  IT IS
SIGNIFICANT THAT NEITHER OF THESE CLASSES OF CORPORATIONS WAS THE
DIRECT EMANATION OF CONGRESS OR THE OFFSPRING OF A GENERAL
INCORPORATION LAW UNDER CONGRESSIONAL AUTHORITY.  SLOAN SHIPYARDS V.
U.S. FLEET CORP., SUPRA.  EACH WAS TO COME INTO BEING THROUGH AN ORGAN
THAT HAD THERETOFORE BEEN CREATED BY CONGRESS.  WE PUT THE FEDERAL
SAVINGS AND LOAN ASSOCIATIONS TO ONE SIDE, BECAUSE THEY ARE NOT NOW
BEFORE THE COURT.  FN5  BUT THE CIRCUMSTANCES ATTENDING THE ORIGINATION
OF REGIONAL MAKE IT MANIFEST THAT IT WAS WITHIN THE CONSIDERATIONS THAT
HAVE UNIFORMLY LED CONGRESS TO MAKE ITS IMMEDIATE CORPORATE CREATURES
SUBJECT TO SUIT.  THE GENESIS, FUNCTIONS, AND AFFILIATIONS OF REGIONAL
ALL NEGATIVE THE ASSUMPTION THAT IN ITS OPERATIONS IT WAS TO BE WITHOUT
THE LAW. 

RECONSTRUCTION IS THE PARENT OF REGIONAL.  WHEN CREATING IT, CONGRESS
GAVE RECONSTRUCTION VARIOUS GENERAL CORPORATE POWERS INCLUDING
AUTHORITY "TO SUE AND BE SUED, TO COMPLAIN AND TO DEFEND, IN ANY COURT
OF COMPETENT JURISDICTION, STATE OR FEDERAL."  47 STAT. 5, 6.  WHEN
LATER CONGRESS AUTHORIZED RECONSTRUCTION TO CREATE THESE REGIONAL
AGRICULTURAL CREDIT CORPORATIONS, IT DID SO BY OUTLINING IN A SINGLE
FOR RECONSTRUCTION.  47 STAT. 709, 713.  FN6  CONGRESS NATURALLY
ASSUMED THAT THE GENERAL CORPORATE POWERS TO WHICH IT HAD GIVEN
PARTICULARITY IN THE ORIGINAL STATUTE ESTABLISHING RECONSTRUCTION WOULD
FLOW AUTOMATICALLY TO THE REGIONALS FROM THE SOURCE OF THEIR BEING. 
SUCH, CERTAINLY, HAS BEEN THE PRACTICAL CONSTRUCTION OF THE REGIONAL
AGRICULTURAL CREDIT CORPORATIONS IN THE INSTINCTIVE PURSUIT OF THEIR
ENTERPRISE.  SEE, E.G., HALLENBECK V. REGIONAL AGRICULTURAL CREDIT
CORP., 47 ARIZ. 477; 56 P.2D 1041; REGIONAL AGRICULTURAL CREDIT CORP.
V. ELSTON, PRINCE & MCDADE, 183 SO. 91(LA.).  CF. LEWIS V. REGIONAL
AGRICULTURAL CREDIT CORP., 92 F.2D 1008(C.C.A. 10TH).  TO IMPLY FOR
REGIONALS A UNIQUE LEGAL POSITION COMPARED WITH THOSE CORPORATIONS TO
WHOSE PURPOSES REGIONAL IS SO CLOSELY ALLIED,  FN7  IS TO INFER
CONGRESSIONAL IDIOSYNCRASY.  THERE IS A MUCH MORE SENSIBLE EXPLANATION
FOR THE FAILURE OF CONGRESS TO BRING REGIONAL BY EXPRESS TERMS WITHIN
ITS EMPHATIC PRACTICE NOT TO CONFER SOVEREIGN IMMUNITY UPON THESE
GOVERNMENT CORPORATIONS.  CONGRESS HAD A RIGHT TO ASSUME THAT THE
CHARACTERISTIC ENERGIES FOR CORPORATE ENTERPRISE WITH WHICH A FEW
MONTHS PREVIOUSLY IT HAD ENDOWED RECONSTRUCTION WOULD NOW RADIATE
THROUGH RECONSTRUCTION TO REGIONAL. 

TO GIVE REGIONAL AN IMMUNITY DENIED TO MORE THAN TWO SCORE
CORPORATIONS, EACH DESIGNED FOR A PURPOSE OF GOVERNMENT NOT RELEVANTLY
DIFFERENT FROM THAT WHICH OCCASIONED THE CREATION OF REGIONAL, IS TO
IMPUTE TO CONGRESS A DESIRE FOR INCOHERENCE IN A BODY OF AFFILIATED
ENACTMENTS AND FOR DRASTIC LEGAL DIFFERENTIATION WHERE POLICY JUSTIFIES
NONE.  A FAIR JUDGMENT OF THE STATUTE IN ITS ENTIRE SETTING RELIEVES US
FROM MAKING SUCH AN IMPUTATION OF CAPRICE. 

THE LEGAL POSITION OF REGIONAL IS, THEREFORE, THE SAME AS THOUGH
CONGRESS HAD EXPRESSLY EMPOWERED IT "TO SUE AND BE SUED."  THE SCOPE OF
THIS LIABILITY REMAINS TO BE EXPLORED. 

REGIONAL CLAIMS IMMUNITY IN ANY EVENT BECAUSE CONGRESS HAS NOT
SUBJECTED IT TO SUIT "IN TORT."  IT IS ASSUMED THAT THE PRESENT ACTION
IS NOT ONE UPON A CONTRACT, EXPRESS OR IMPLIED, AND, THEREFORE, OUTSIDE
THE PURVIEW OF "TO SUE AND BE SUED."  THE PREMISE IS NOT VALID, NOR
DOES THE CONCLUSION FOLLOW. 

THE TRANSACTION WHICH GAVE RISE TO THE CONTROVERSY WAS A BAILMENT OF
LIVESTOCK FOR HIRE, AND THE CAUSE OF ACTION LACK OF REASONABLE
DILIGENCE BY THE BAILEE.  EVER SINCE THE FIFTEENTH CENTURY, ACCORDING
TO MAITLAND, THERE WERE "ACTIONS AGAINST BAILEES FOR NEGLIGENCE IN THE
CUSTODY OF GOODS ENTRUSTED TO THEM, AND HERE ALSO IT WAS NECESSARY TO
ALLEGE AN ASSUMPSIT" - THE HAVING UNDERTAKEN TO DO SOMETHING. 
MAITLAND, EQUITY, LECTURE VI, PP. 362, 363; MAITLAND, THE FORMS OF
ACTION AT COMMON LAW, LECTURE VI, PP. 68, 69.  THAT REGIONAL'S FAILURE
PROPERLY TO FEED AND WATER THE LIVESTOCK ENTRUSTED TO IT BY THE CATTLE
FEEDING CONTRACT WAS NOT A WRONG DISASSOCIATED FROM CARRYING OUT THE
VERY TRANSACTION WHICH BROUGHT IT INTO EXISTENCE, IS EVIDENT FROM THE
RECOGNIZED LIABILITY OF THE UNITED STATES ITSELF AS LESSEE AND BAILEE
EVEN UNDER THE EXPLICIT RESTRICTIONS OF THE COURT OF CLAIMS ACTS.  FN8
BOTH THIS COURT AND THE COURT OF CLAIMS HAVE SUSTAINED ACTIONS NOT
DISSIMILAR FROM THE PRESENT.  THEY HAVE RECOGNIZED THAT THE BREACH OF
IMPLIED DUTY OF A LESSEE "NOT TO COMMIT WASTE, OR SUFFER IT TO BE
COMMITTED," UNITED STATES V. BOSTWICK, 94 U.S. 53, 68, AND OF A BAILEE
NOT TO NEGLECT "TO EXERCISE ORDINARY CARE AND SKILL," GULF TRANSIT CO.
V. UNITED STATES, 43 CT. CL. 183, 199, ARE DUTIES THAT HAVE THEIR
SOURCE IN CONTRACT EVEN THOUGH THE GUILTY AGENTS MAY BE MERELY TORT
FEASORS.  TO BE SURE, THE COMMON LAW FICTION OF WAIVING THE TORT AND
SUING IN ASSUMPSIT CANNOT BE USED AS AN EVASION OF THE LIMITED
LIABILITY CREATED BY THE COURT OF CLAIMS ACTS.  BIGBY V. UNITED STATES,
188 U.S. 400; UNITED STATES V. MINNESOTA INVESTMENT CO., 271 U.S. 212,
217.  BUT WHERE THE WRONG REALLY DERIVES FROM AN UNDERTAKING, TO STAND
ON THE UNDERTAKING AND TO DISREGARD THE TORT IS NOT TO INVOKE A FICTIVE
AGREEMENT.  IT MERELY RECOGNIZES A CHOICE OF PROCEDURAL VINDICATIONS
OPEN TO THE INJURED PARTY. 

TO ASSUME THAT CONGRESS IN SUBJECTING THESE RECENTLY CREATED
GOVERNMENTAL CORPORATIONS TO SUIT MEANT TO ENMESH THEM IN THESE
PROCEDURAL ENTANGLEMENTS, WOULD DO VIOLENCE TO CONGRESSIONAL PURPOSE. 
WHEN IT CHOSE TO DO SO, CONGRESS KNEW WELL ENOUGH HOW TO RESTRICT ITS
CONSENT TO SUITS SOUNDING ONLY IN CONTRACT, EVEN WITH ALL THE
CONTROVERSIES IN RECONDITE PROCEDURAL LEARNING THAT THIS MIGHT ENTAIL. 
IT DID SO WITH INCREASING PARTICULARITY IN THE SUCCESSIVE COURT OF
CLAIMS ACTS.  10 STAT. 612; 24 STAT. 505; 28 U.S.C. SECS. 41(20),
250(1).  IN THE LIGHT OF THESE STATUTES IT OUGHT NOT TO BE ASSUMED THAT
WHEN CONGRESS CONSENTED "TO SUIT" WITHOUT QUALIFICATION, THE EFFECT IS
THE SAME AS THOUGH IT HAD WRITTEN "IN SUITS ON CONTRACT, EXPRESS OR
IMPLIED, IN CASES NOT SOUNDING IN TORT."  NO SUCH DISTINCTION WAS MADE
BY CONGRESS, AND NO SUCH INTERPOLATION INTO STATUTES HAS BEEN MADE IN
CASES AFFECTING GOVERNMENT CORPORATIONS INCORPORATED UNDER STATE LAW OR
THAT OF THE DISTRICT OF COLUMBIA.  FN9  THERE IS EQUALLY NO WARRANT FOR
IMPORTING SUCH A DISTINCTION HERE.  TO DO SO WOULD MAKE APPLICATION OF
A STEADILY GROWING POLICY OF GOVERNMENTAL LIABILITY CONTINGENT UPON
IRRELEVANT PROCEDURAL FACTORS.  THESE, IN OUR LAW, ARE STILL DEEPLY
ROOTED IN HISTORICAL ACCIDENTS TO WHICH THE EXPANDING CONCEPTIONS OF
PUBLIC MORALITY REGARDING GOVERNMENTAL RESPONSIBILITY SHOULD NOT BE
SUBORDINATED. 

CONGRESS HAS EMBARKED UPON A GENEROUS POLICY OF CONSENT FOR SUITS
AGAINST THE GOVERNMENT SOUNDING IN TORT EVEN WHERE THERE IS NO ELEMENT
OF CONTRACT.  IT HAS SANCTIONED SUITS FOR PATENT INFRINGEMENT, 36 STAT.
851, PROVIDED FOR COMPENSATION FOR THE DISABILITY OR DEATH OF A
GOVERNMENT EMPLOYEE "WHILE IN THE PERFORMANCE OF HIS DUTY," 39 STAT.
742, AUTHORIZED PAYMENT FOR DAMAGE TO PROPERTY BY THE ARMY AIR
SERVICE.  41 STAT. 109.  THESE AND OTHER PUBLIC STATUTES AND MANY
PRIVATE BILLS WERE FOUNDED ON CONSIDERATIONS THUS GENERALIZED IN A
REPORT OF THE SENATE COMMITTEE ON CLAIMS: 

"IN OTHER WORDS, IT MAY BE SAID THAT CONGRESS HAS RECOGNIZED THE
GENERAL LIABILITY OF THE GOVERNMENT WITHIN MAXIMUM AMOUNTS FOR THE
NEGLIGENCE OF OFFICERS AND EMPLOYEES OF THE UNITED STATES, BUT THE
MACHINERY FOR DETERMINING THAT LIABILITY IS DEFECTIVE AND RESULTS IN
OVERBURDENING THE CLAIMS COMMITTEE OF CONGRESS AND CONGRESS ITSELF WITH
THE CONSIDERATION OF TORT LIABILITY CLAIMS AND WITH INJURIES TO THE
CLAIMANTS. 

"THIS PROPOSED LEGISLATION IS DESIGNED TO RELIEVE THE SITUATION BY
UTILIZING THE MACHINERY OF THE ACCOUNTING OFFICE AND JUDICIAL BRANCHES
OF THE GOVERNMENT IN THE ASSISTANCE OF CONGRESS."  SENATE REPORT NO.
1699, 70TH CONG., 2D SESS., P. 4.  SEE ALSO SENATE REPORT NO. 658, 72D
CONG., 1ST SESS., P. 3. 

ACTING ON THESE VIEWS, CONGRESS PASSED A GENERAL COURT OF CLAIMS
BILL, WHICH, HOWEVER, AT THE CLOSE OF THE SESSION FAILED OF ENACTMENT
BY PRESIDENT COOLIDGE'S POCKET-VETO.  H.R. 9285, 70TH CONG., 2D SESS.;
70 CONG. REC. 4836.  FN10  CONGRESS HAS THUS CLEARLY MANIFESTED AN
ATTITUDE WHICH SERVES AS A GUIDE TO THE SCOPE OF LIABILITY IMPLICIT IN
THE GENERAL AUTHORITY IT HAS CONFERRED ON GOVERNMENTAL CORPORATIONS TO
SUE AND BE SUED.  WE SHOULD BE DENYING THE RECENT TREND OF
CONGRESSIONAL POLICY TO RELIEVE REGIONAL FROM LIABILITY.  THIS COMPELS
US TO REVERSE THE JUDGMENT OF THE COURT BELOW.  REVERSED. 

FN1  SEE PROFESSOR BORCHARD'S BIBLIOGRAPHY IN (1934) 20 A.B.A.J. 747,
748, AND THE COLLECTION OF AUTHORITIES IN JUDGE MACK'S OPINION IN THE
PESARO, 277 F. 473, REV'D, 271 U.S. 562. 

FN2  SEE THURSTON, GOVERNMENT PROPRIETARY CORPORATIONS; VAN DORN,
GOVERNMENT OWNED CORPORATIONS; MCDIARMID, GOVERNMENT CORPORATIONS AND
FEDERAL FUNDS; FIELD, GOVERNMENT CORPORATIONS:  A PROPOSAL (1935) 48
HARV. L. REV. 775; MCINTYRE, GOVERNMENT CORPORATIONS AS ADMINISTRATIVE
AGENCIES:  AN APPROACH (1936) 4 GEO. WASH. L. REV. 161. 

FN3  THE AMERICAN LEGION, 41 STAT. 284, 285; FOREIGN BANKING
CORPORATIONS, 41 STAT. 378, 379; CHINA TRADE ACT CORPORATION, 42 STAT.
849, 851; BELLEAU WOOD MEMORIAL ASSOCIATION, 42 STAT. 1441; FEDERAL
INTERMEDIATE CREDIT BANKS, 42 STAT. 1454, 1455; NATIONAL AGRICULTURAL
CREDIT CORPORATIONS, 42 STAT. 1454, 1462; THE GRAND ARMY OF THE
REPUBLIC, 43 STAT. 358, 359; INLAND WATERWAYS CORPORATION, 43 STAT.
360, 362; THE UNITED STATES BLIND VETERANS OF THE WORLD WAR, 43 STAT.
535, 536; AMERICAN WAR MOTHERS, 43 STAT. 966, 967; TEXTILE FOUNDATION,
46 STAT. 539, 540; RECONSTRUCTION FINANCE CORPORATION, 47 STAT. 5, 6;
DISABLED AMERICAN VETERANS OF THE WORLD WAR, 47 STAT. 320, 321; FEDERAL
HOME LOAN BANK, 47 STAT. 725, 735; TENNESSEE VALLEY AUTHORITY, 48 STAT.
58, 60; CORPORATION OF FOREIGN SECURITY HOLDERS, 48 STAT. 92, 93; HOME
OWNERS' LOAN CORPORATION, 48 STAT. 128, 129; FEDERAL DEPOSIT INSURANCE
CORPORATION, 48 STAT. 162, 172; PRODUCTION CREDIT CORPORATIONS,
PRODUCTION CREDIT ASSOCIATIONS, CENTRAL BANK FOR COOPERATIVES, REGIONAL
BANKS FOR COOPERATIVES, 48 STAT. 257, 266; FEDERAL FARM MORTGAGE
CORPORATIONS, 48 STAT. 344, 345; CAIRO BRIDGE COMMISSION, 48 STAT. 577,
581; PORT ARTHUR BRIDGE COMMISSION, 48 STAT. 1008, 1009; FEDERAL CREDIT
UNION, 48 STAT. 1216, 1218; FEDERAL SAVINGS & LOAN INSURANCE
CORPORATION, 48 STAT. 1246, 1256; NATIONAL MORTGAGE ASSOCIATIONS, 48
STAT. 1246, 1253; AMERICAN NATIONAL THEATER AND ACADEMY, 49 STAT. 457,
458; FEDERAL HOUSING ADMINISTRATOR, 49 STAT. 684, 722; VETERANS OF
FOREIGN WARS OF THE UNITED STATES, 49 STAT. 1390, 1391; DISASTER LOAN
CORPORATION, 50 STAT. 19; FARMERS' HOME CORPORATION, 50 STAT. 527;
MARINE CORPS LEAGUE, 50 STAT. 558, 559; OWENSBORO BRIDGE COMMISSION, 50
STAT. 641, 645; SOUTHEASTERN UNIVERSITY, 50 STAT. 697, 698; AMERICAN
CHEMICAL SOCIETY, 50 STAT. 798, 799, 800(SEMBLE); UNITED STATES HOUSING
AUTHORITY, 50 STAT. 888, 889, 890; FEDERAL CROP INSURANCE CORPORATION,
52 STAT. 72, 73; NIAGARA FALLS BRIDGE COMMISSION, 52 STAT. 767, 770. 

THIS LIST DOES NOT INCLUDE, OF COURSE, THE GOVERNMENT CORPORATIONS
CHARTERED UNDER GENERAL STATE OR DISTRICT OF COLUMBIA INCORPORATION
LAWS.  SLOAN SHIPYARDS V. U.S. FLEET CORP., SUPRA. 

FN4  MR. JUSTICE HOLMES, ON CIRCUIT, GAVE PIONEER EXPRESSION TO
INFERENCES TO BE DRAWN FROM LEGISLATIVE POLICY.  "A STATUTE," HE WROTE
IN JOHNSON V. UNITED STATES, 163 F. 30, 32(C.C.A. 1ST), "MAY INDICATE
OR REQUIRE AS ITS JUSTIFICATION A CHANGE IN THE POLICY OF THE LAW,
ALTHOUGH IT EXPRESSES THAT CHANGE ONLY IN THE SPECIFIC CASES MOST
LIKELY TO OCCUR TO THE MIND.  THE LEGISLATURE HAS THE POWER TO DECIDE
WHAT THE POLICY OF THE LAW SHALL BE, AND IF IT HAS INTIMATED ITS WILL,
HOWEVER INDIRECTLY, THAT WILL SHOULD BE RECOGNIZED AND OBEYED.  THE
MAJOR PREMISE OF THE CONCLUSION EXPRESSED IN A STATUTE, THE CHANGE OF
POLICY THAT INDUCES THE ENACTMENT, MAY NOT BE SET OUT IN TERMS, BUT IT
IS NOT AN ADEQUATE DISCHARGE OF DUTY FOR COURTS TO SAY:  WE SEE WHAT
YOU ARE DRIVING AT, BUT YOU HAVE NOT SAID IT, AND THEREFORE WE SHALL GO
ON AS BEFORE."  SEE ALSO, TAFT, C.J., IN UNITED MINE WORKERS V.
CORONADO COAL CO., 259 U.S. 344, 385-389; SUTHERLAND, J., IN FUNK V.
UNITED STATES, 290 U.S. 371, 381; CARDOZO, J., IN VAN BEECK V. SABINE
TOWING CO., 300 U.S. 342, 350-351; LORD BIRKENHEAD, L.C., IN BOURNE V.
KEANE (1919) A.C. 815, 830; STONE, THE COMMON LAW IN THE UNITED STATES
(1936) 50 HARV. L. REV. 4, 13; LANDIS, STATUTES AND THE SOURCES OF LAW,
HARVARD LEGAL ESSAYS, P. 213. 

FN5  IT IS TO BE NOTED THAT THE PROGENITOR OF THESE ASSOCIATIONS -
THE FEDERAL HOME LOAN BANK BOARD - IS NOT ITSELF A CORPORATION.  BUT
SEE SLOAN SHIPYARDS V. U.S. FLEET CORP., SUPRA, IN WHICH THE FLEET
CORPORATION WAS FOUND SUBJECT TO SUIT ALTHOUGH CONGRESS AUTHORIZED ITS
CREATION THROUGH THE PRESIDENT. 

FN6  SECTION 201(E) OF THE STATUTE, PROVIDING FOR REGIONAL
AGRICULTURAL CREDIT CORPORATIONS, COVERS LESS THAN HALF A PAGE OF A
FIFTEEN-PAGE STATUTE. 

FN7  SEE, E.G., FEDERAL LAND BANKS, 39 STAT. 360, 363; JOINT STOCK
LAND BANKS, 39 STAT. 360, 374; FEDERAL INTERMEDIATE CREDIT BANKS, 42
STAT. 1454, 1455; NATIONAL AGRICULTURAL CREDIT CORPORATIONS, 42 STAT.
1454, 1462; PRODUCTION CREDIT CORPORATIONS, PRODUCTION CREDIT
ASSOCIATIONS, CENTRAL BANK FOR COOPERATIVES, REGIONAL BANKS FOR
COOPERATIVES, 48 STAT. 257, 266; FEDERAL FARM MORTGAGE CORPORATIONS, 48
STAT. 344, 345; NATIONAL MORTGAGE ASSOCIATIONS, 48 STAT. 1246, 1253. 
CONGRESS ITSELF RECOGNIZED THE IDENTITY OF PURPOSE IN THESE VARIOUS
CORPORATIONS.  48 STAT. 267, 268.  NOTE, TOO, THAT PRODUCTION CREDIT
CORPORATIONS, SUCCESSORS TO REGIONAL AGRICULTURAL CREDIT CORPORATIONS
ARE SUBJECT TO SUIT.  48 STAT. 257, 266. 

FN8  THE ACT OF FEBRUARY 24, 1855(10 STAT. 612), ESTABLISHING THE
COURT OF CLAIMS ALLOWED SUIT FOR CLAIMS "UPON ANY CONTRACT, EXPRESS OR
IMPLIED  ...  "  THE ACT OF MARCH 3, 1887(24 STAT. 505) ALLOWED SUITS
FOR CLAIMS "UPON ANY CONTRACT, EXPRESS OR IMPLIED  ...  OR FOR DAMAGES,
LIQUIDATED OR UNLIQUIDATED, IN CASES NOT SOUNDING IN TORT.   ...  "
SEE 28 U.S.C. SECS. 41(20), 250(1). 

FN9  THE CASES ARE COLLECTED IN THURSTON, GOVERNMENT PROPRIETARY
CORPORATIONS (1935) 21 VA. L. REV. 351, 378, ET SEQ. 

FN10  THAT OBJECTIONS TO THE ADMINISTRATIVE FEATURES OF THE BILL WERE
THE PROBABLE REASONS FOR THE VETO IS INDICATED BY A MEMORANDUM OF
ATTORNEY-GENERAL SARGENT, FOR WHICH SEE MCGUIRE, TORT CLAIMS AGAINST
THE UNITED STATES (1931) 19 GEO. L.J. 133, 134, 135. 
..END :
























PUB. SERV. COMM'N V. BRASHEAR LINES, 306 U.S. 204 


NO. 605.  DECIDED FEBRUARY 13, 1939. 


UNDER JUDICIAL CODE SEC. 266, 28 U.S.C. 380, APPEAL DIRECTLY TO THIS
COURT FROM THE DISTRICT COURT OF THREE JUDGES IS LIMITED TO DECREES
GRANTING OR DENYING INTERLOCUTORY OR PERMANENT INJUNCTIONS; THIS COURT
HAS NO JURISDICTION OF AN APPEAL TAKEN UNDER THIS SECTION BY A
DEFENDANT AGAINST WHOM AN INJUNCTION WAS DENIED, FOR THE PURPOSE OF
REVIEWING THE DISMISSAL BY THE DISTRICT COURT OF A COUNTERCLAIM FOR
MONEY PLEADED IN THE ANSWER.  P. 206. 

PUBLIC SERVICE COMMISSION ET AL. V. BRASHEAR FREIGHT LINES, INC., ET
AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MISSOURI. 

PER CURIAM. 

APPELLEES, BRASHEAR FREIGHT LINES, INC., AND OTHERS, COMMON CARRIERS
OF PROPERTY FOR HIRE BY MOTOR VEHICLES OPERATED IN INTERSTATE COMMERCE
OVER THE HIGHWAYS OF MISSOURI AND OTHER STATES, BROUGHT THIS SUIT TO
RESTRAIN THE ENFORCEMENT OF THE STATUTE OF MISSOURI KNOWN AS THE
MISSOURI BUS AND TRUCK ACT, EFFECTIVE SEPTEMBER 15, 1931. 

AS AN INTERLOCUTORY INJUNCTION WAS SOUGHT, A TEMPORARY RESTRAINING
ORDER WAS ISSUED AND A COURT OF THREE JUDGES WAS CONVENED PURSUANT TO
SEC. 266 OF THE JUDICIAL CODE.  28 U.S.C. 380.  IT WAS LATER AGREED
"THAT THE TEMPORARY RESTRAINING ORDER SHOULD REMAIN IN EFFECT UNTIL
FINAL DECISION ON THE MERITS OF THE RELIEF ASKED IN THE PLAINTIFFS'
BILL OF COMPLAINT AND THAT HEARING ON PLAINTIFFS' APPLICATION FOR A
TEMPORARY AND PERMANENT INJUNCTION SHOULD BE CONSOLIDATED." 

DEFENDANTS, PUBLIC SERVICE COMMISSION OF MISSOURI AND SEVERAL STATE
OFFICERS, IN THEIR ANSWER INCLUDED A COUNTERCLAIM OF THE PUBLIC SERVICE
COMMISSION SEEKING AN ACCOUNTING FROM PLAINTIFFS FOR FEES DUE TO THE
STATE UNDER THE ABOVE MENTIONED ACT FOR THE USE OF THE PUBLIC HIGHWAYS
DURING THE TIME THAT THE TEMPORARY RESTRAINING ORDER WAS IN EFFECT. 
UPON STIPULATION, THE RESTRAINING ORDER WAS MODIFIED SO AS TO PROVIDE
FOR DEPOSIT OF LICENSE FEES WITH A TRUSTEE PENDING THE TERMINATION OF
THE LITIGATION. 

ON HEARING, THE DISTRICT COURT ENTERED ITS FINAL DECREE AS FOLLOWS: 

"1.  THAT THE PLAINTIFFS ARE NOT ENTITLED TO A PERMANENT INJUNCTION
AGAINST THE DEFENDANTS; 

"2.  THAT THE RELIEF PRAYED FOR IN PLAINTIFFS' BILL OF COMPLAINT
SHOULD BE AND IS HEREBY IN ALL RESPECTS DENIED, AND PLAINTIFFS' BILL OF
COMPLAINT IS HEREBY DISMISSED ON ITS MERITS; 

"3.  THAT THE TEMPORARY RESTRAINING ORDER HERETOFORE GRANTED TO
PLAINTIFFS BY THIS COURT AGAINST THE DEFENDANTS, BE AND THE SAME HEREBY
IS DISSOLVED; 

"4.  THAT THE ISSUE RAISED BY THE DEFENDANTS' COUNTERCLAIM, NOT
HAVING BEEN URGED NOR PRESENTED BY THE PARTIES, AND THE COURT BEING IN
DOUBT AS TO THE RIGHT OF THE DEFENDANTS TO MAINTAIN SUCH COUNTERCLAIM,
IT IS ORDERED THAT THE SAME BE AND IT HEREBY IS DISMISSED WITHOUT
PREJUDICE TO THE RIGHT OF THE DEFENDANTS, OR EITHER OF THEM, TO
MAINTAIN AN INDEPENDENT ACTION OR SUIT THEREON, IF THEY, OR EITHER OF
THEM, SHALL BE SO ADVISED; 

"5. THAT DEFENDANTS RECOVER THEIR COSTS AND DISBURSEMENTS HEREIN, TO
BE TAXED AS PROVIDED BY LAW AND INSERTED HEREIN IN THE SUM OF  ...
DOLLARS." 

ON MOTION FOR REHEARING, PARAGRAPH 4 OF THE DECREE WAS MODIFIED BY
STRIKING OUT THE FOLLOWING WORDS RELATING TO THE DEFENDANTS'
COUNTERCLAIM, TO WIT, "NOT HAVING BEEN URGED NOR PRESENTED BY THE
PARTIES," AND REHEARING WAS DENIED. 

THE PUBLIC SERVICE COMMISSION BRINGS THIS APPEAL SEEKING TO REVIEW
PARAGRAPH 4 OF THE DECREE, AS AMENDED, DISMISSING THE COUNTERCLAIM. 

THE APPELLATE JURISDICTION OF THIS COURT ON DIRECT APPEAL FROM A
FINAL DECREE BY A DISTRICT COURT COMPOSED OF THREE JUDGES UNDER SEC.
266 OF THE JUDICIAL CODE IS STRICTLY LIMITED AS FOLLOWS: 

"A DIRECT APPEAL TO THE SUPREME COURT MAY BE TAKEN FROM A FINAL
DECREE GRANTING OR DENYING A PERMANENT INJUNCTION IN SUCH SUIT." 

THE PUBLIC SERVICE COMMISSION AS THE SUCCESSFUL PARTY BELOW HAS NO
STANDING TO APPEAL FROM THE DECREE DENYING THE INJUNCTION.  NEW YORK
TELEPHONE CO. V. MALTBIE, 291 U.S. 645; LINDHEIMER V. ILLINOIS
TELEPHONE CO., 292 U.S. 151, 176.  AND AS NO APPEAL HAS BEEN TAKEN TO
REVIEW THE DECREE DENYING THE INJUNCTION, THIS COURT IS WITHOUT
JURISDICTION. 

INTERLOCUTORY INJUNCTION WAS GRANTED OR DENIED AND THE PURPOSE WAS TO
MAKE INTERFERENCE BY SUCH AN INJUNCTION WITH THE ENFORCEMENT OF STATE
LEGISLATION A MATTER FOR THE ADEQUATE HEARING AND FULL DELIBERATION
WHICH THE PRESENCE OF THREE JUDGES WAS LIKELY TO SECURE.  CUMBERLAND
TELEPHONE CO. V. PUBLIC SERVICE COMM'N, 260 U.S. 212, 216; STRATTON V.
ST. LOUIS SOUTHWESTERN RY. CO., 282 U.S. 10, 14.  THE AMENDMENT THAT
THE REQUIREMENT OF A COURT OF THREE JUDGES SHOULD ALSO APPLY TO THE
FINAL HEARING ON THE APPLICATION FOR A PERMANENT INJUNCTION WAS TO END
THE ANOMALOUS SITUATION IN WHICH A SINGLE JUDGE MIGHT RECONSIDER AND
DECIDE QUESTIONS ALREADY PASSED UPON BY THREE JUDGES ON THE APPLICATION
FOR AN INTERLOCUTORY INJUNCTION.  SMITH V. WILSON, 273 U.S. 388, 390,
391; STRATTON V. ST. LOUIS SOUTHWESTERN RY. CO., SUPRA.  AND, AS DIRECT
APPEAL TO THIS COURT WAS PERMITTED FROM AN ORDER GRANTING OR DENYING AN
INTERLOCUTORY INJUNCTION, THE AMENDMENT PROVIDED ALSO FOR SUCH A DIRECT
APPEAL FROM A FINAL DECREE GRANTING OR DENYING A PERMANENT INJUNCTION. 

IT NECESSARILY FOLLOWS THAT, UNLESS THERE IS A PROPER APPEAL FROM A
DECREE GRANTING OR DENYING AN INTERLOCUTORY OR PERMANENT INJUNCTION,
THE PROVISION IN SEC. 266 FOR A DIRECT APPEAL TO THIS COURT HAS NO
APPLICATION.  THE APPEAL DISMISSED. 
..END :






INTERSTATE CIRCUIT V. U.S., 306 U.S. 208 


NO. 269.  ARGUED JANUARY 11, 1939.  - DECIDED FEBRUARY 13, 1939.  - 20
F.SUPP.  868, AFFIRMED. 


1.  WHERE DISTRIBUTORS OF MOTION PICTURE FILMS, OWNING OR CONTROLLING
THE COPYRIGHTS AND ENGAGED, INTERSTATE, IN THE BUSINESS OF SUPPLYING
THE FILMS TO THEATERS FOR EXHIBITION UNDER LICENSE CONTRACTS, JOIN IN
MAKING AND CARRYING OUT AN AGREEMENT WITH THE OWNERS OF THE THEATERS IN
CERTAIN CITIES TO WHOM THEIR LICENSES FOR FIRST RUN EXHIBITIONS OF
"FEATURE" PICTURES IN THOSE CITIES ARE CONFINED, WHEREBY THE
DISTRIBUTORS, IN GRANTING LICENSES TO OTHER THEATERS IN THE SAME PLACES
FOR SUBSEQUENT RUNS OF SUCH FILMS REQUIRE OF THEM THAT THEY OBSERVE A
MINIMUM PRICE OF ADMISSION AND ABSTAIN FROM PRESENTING A PICTURE SO
LICENSED WITH ANY OTHER FEATURE PICTURE AT THE SAME SHOW,  - THE
PURPOSE AND EFFECT OF THESE RESTRICTIONS BEING TO MAINTAIN THE HIGHER
PRICES OF THE FIRST RUN THEATERS AND PROTECT THEM FROM THE COMPETITION
OF THE OTHERS,  - SUCH AGREEMENT IS AN UNREASONABLE RESTRAINT OF
INTERSTATE COMMERCE AND CONTRARY TO THE FEDERAL ANTI-TRUST ACT.  PP.
221, 232. 

2.  THE EVIDENCE IN THIS CASE SUPPORTED THE INFERENCE THAT THE
DISTRIBUTORS OF THE FILMS ACTED IN CONCERT, IN MAKING THEIR SEVERAL
AGREEMENTS WITH THE FIRST RUN EXHIBITORS, AND IN IMPOSING THE
RESTRICTIONS SO STIPULATED ON THE SUBSEQUENT-RUN EXHIBITORS.  P. 221. 

3.  UPON THE PRODUCTION OF SUCH PROOF, THE BURDEN RESTED UPON THOSE
IMPLICATED TO EXPLAIN AWAY OR CONTRADICT IT.  P. 225. 

4.  THE PRODUCTION OF WEAK EVIDENCE WHEN STRONG IS AVAILABLE LEADS TO
THE CONCLUSION THAT THE STRONG WOULD HAVE BEEN ADVERSE.  SILENCE THEN
BECOMES EVIDENCE OF THE MOST CONVINCING CHARACTER.  P. 226. 

5.  ACCEPTANCE BY COMPETITORS, KNOWING THAT CONCERTED ACTION IS
CONTEMPLATED, OF AN INVITATION TO PARTICIPATE IN A PLAN, THE NECESSARY
CONSEQUENCE OF WHICH, IF CARRIED OUT, IS RESTRAINT OF INTERSTATE
COMMERCE, IS SUFFICIENT TO ESTABLISH AN UNLAWFUL CONSPIRACY UNDER THE
SHERMAN ACT.  P. 227. 

6.  A CONTRACT BETWEEN THE COPYRIGHT OWNER OF MOTION PICTURE FILMS
AND THE OWNER OF MOTION PICTURE THEATERS, RESTRAINING THE COMPETITIVE
DISTRIBUTION OF THE FILMS IN THE OPEN MARKET IN ORDER TO PROTECT THE
THEATER OWNER FROM COMPETITION OF OTHER THEATERS IS NOT PROTECTED BY
THE COPYRIGHT ACT.  P. 227. 

7.  THE OWNER OF THOSE MOTION PICTURE THEATERS IN SEVERAL CITIES IN
WHICH THE FIRST RUNS OF COPYRIGHTED "FEATURE" PICTURES WERE EXHIBTED,
TAKING ADVANTAGE OF ITS MONOPOLY, SECURED FROM EACH OF SEVERAL
COPYRIGHT OWNERS WHO DISTRIBUTED SUCH FILMS IN INTERSTATE COMMERCE, AN
AGREEMENT BINDING THE DISTRIBUTOR WHEN LICENSING SUBSEQUENT RUNS OF HIS
FILMS AT OTHER THEATERS IN THOSE CITIES TO REQUIRE THE LICENSEE TO
OBSERVE A CERTAIN MINIMUM ADMISSION PRICE AND TO ABSTAIN FROM
EXHIBITING THE PICTURE IN A DOUBLE BILL WITH ANY OTHER "FEATURE" FILM. 
THE PURPOSE OF THE ARRANGEMENT WAS TO PROTECT THE OWNER OF THE FIRST
RUN THEATERS FROM COMPETITION OF SUBSEQUENT-RUN THEATERS, AND ITS
EFFECT WAS TO IMPOSE UNDUE RESTRAINTS UPON COMPETING THEATER BUSINESSES
HABITUALLY EXHIBITING THE COMPETITIVE PICTURES OF DIFFERENT COPYRIGHT
OWNERS, AND TO ENABLE THE FAVORED THEATER OWNER TO DOMINATE THE
BUSINESS OF HIS COMPETITORS.  HELD:  THAT THE CONTRACTS WERE NOT
PROTECTED BY THE COPYRIGHT ACT, AND THAT, ASIDE FROM ANY AGREEMENT
BETWEEN THE DISTRIBUTORS THEMSELVES, THEY WERE CONTRARY TO THE ANTI
TRUST ACT.  P. 230. 

INTERSTATE CIRCUIT, INC., ET AL. V. UNITED STATES.* 

*TOGETHER WITH NO. 270, PARAMOUNT PICTURES DISTRIBUTING CO. ET AL. V.
UNITED STATES, ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF TEXAS. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF TEXAS. 

APPEALS FROM A DECREE OF THE DISTRICT COURT AWARDING AN INJUNCTION IN
A SUIT BROUGHT BY THE GOVERNMENT UNDER THE SHERMAN ANTI-TRUST ACT. 

A LICENSEE OF THE FIRST RUN EXHIBITION OF A COPYRIGHTED MOTION
PICTURE PHOTOPLAY HAS THE LEGAL RIGHT TO OBTAIN FROM THE LICENSOR A
COVENANT THAT THE RIGHT SHALL NOT BE IMPAIRED BY A SUBSEQUENT
EXHIBITION OF THE PHOTOPLAY AT AN ADMISSION PRICE OF LESS THAN 25[ OR
AS PART OF A DOUBLE FEATURE PROGRAM. 

A DISTRIBUTOR, THE OWNER OF A COPYRIGHTED MOTION PICTURE PHOTOPLAY,
ACTING INDEPENDENTLY OF ANY OTHER DISTRIBUTOR, HAS THE LEGAL RIGHT TO
AGREE WITH A FIRST RUN EXHIBITOR TO INCLUDE EITHER OR BOTH OF THE
RESTRICTIONS HERE IN QUESTION IN SUBSEQUENT RUN LICENSE AGREEMENTS. 
METRO-GOLDWYN-MAYER D. CORP. V. BIJOU THEATRE CO., 59 F.2D 70; MANNERS
V. MOROSCO, 252 U.S. 317; BEMENT V. NATIONAL HARROW CO., 180 U.S. 70;
UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476; CARBICE
CORPORATION V. AMERICAN PATENTS DEVELOPMENT CORP., 283 U.S. 27;
STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163; GENERAL TALKING
PICTURES CORP. V. WESTERN ELECTRIC CO., 305 U.S. 124. 

THE RIGHT OF THE OWNER OF A PATENT OR A COPYRIGHT IS TO EXCLUDE ALL
FROM EXERCISING HIS EXCLUSIVE RIGHTS, AND HE MAY SELECT HIS LICENSEES
AT WILL, PREFERRING THE LARGE OR THE SMALL BUSINESS UNITS AND GRANTING
HIS MONOPOLY TO ONE OR MORE AS HE WISHES, AND FOR HIS OWN REASONS,
WHICH NO DOUBT UNDER ORDINARY CIRCUMSTANCES WILL BE DICTATED BY HIS
DESIRE FOR PROFIT IN THE FORM OF ROYALTIES.  AMERICAN EQUIPMENT CO. V.
TUTHILL, 69 F.2D 406.  HE MAY IMPOSE ANY CONDITIONS REASONABLY ADAPTED
TO THE REALIZATION OF THE VALUE OF HIS MONOPOLY, AS, FOR INSTANCE, BY
FIXING THE PRICE AT WHICH THE LICENSEE MAY SELL UNPATENTED ARTICLES
MANUFACTURED UNDER LICENSE BY PATENTED MACHINERY (STRAIGHT SIDE BASKET
CORP. V. WEBSTER BASKET CO., 82 F.2D 245; MURPHY V. CHRISTIAN PRESS
ASSN. PUB. CO., 38 APP. DIV. 426), AND BY DICTATING THE CUSTOMERS TO
WHOM ARTICLES MAY BE SOLD BY THE LICENSEE.  BECTON, DICKINSON & CO. V.
EISELE & CO., 86 F.2D 267.  HE MAY ALSO LICENSE THE PUBLIC PERFORMANCE
OF COPYRIGHTED WORKS TO SOME LICENSEES ON MORE FAVORABLE TERMS THAN TO
OTHERS.  BUCK V. HILLSGROVE COUNTRY CLUB, 17 F.SUPP.  643.  HE IS NOT
REQUIRED TO GIVE REASONS OR DEAL FAIRLY WITH THOSE SEEKING TO SHARE IN
HIS MONOPOLY.  VICTOR TALKING MACH. CO. V. THE FAIR, 123 FED. 424; DR.
MILES MEDICAL CO. V. PLATT, 142 FED. 606. 

OF COURSE, THE PROTECTION OF THE COPYRIGHT ACT DOES NOT EXTEND TO
UNREASONABLE RESTRAINTS OF TRADE IMPOSED PURSUANT TO A COMBINATION,
AGREEMENT OR CONSPIRACY BETWEEN TWO OR MORE COPYRIGHT OWNERS WHO HAVE
COMBINED FOR THE PURPOSE OF MONOPOLY OR RESTRAINT OF TRADE.  STRAUS V.
AMERICAN PUBLISHERS' ASSN., 231 U.S. 222; PARAMOUNT FAMOUS CORP. V.
UNITED STATES, 282 U.S. 30.  BUT IN THE ABSENCE OF SUCH PRIOR
AGREEMENT, COMBINATION OR CONSPIRACY, THE OWNER OF THE COPYRIGHT HAS AN
ABSOLUTE MONOPOLY WITHIN THE FIELD OF HIS COPYRIGHT. 

THE SPECIFIC CONTRACTS INVOLVED IN THE CASE AT BAR WERE CONSIDERED
AND UPHELD BY THE APPELLATE COURT OF TEXAS IN GLASS V. HOBLITZELLE, 83
S.W.2D 796.  THE PRINCIPLES APPLIED ARE SETTLED LAW IN TEXAS WITH
REGARD TO PURELY INTRASTATE TRANSACTIONS.  COCA-COLA CO. V. STATE, 225
S.W. 791.  SEE SHUBERT THEATRE PLAYERS CO. V. METRO-GOLDWYN-MAYER
DISTRIBUTING CORP., UNREPORTED, JAN. 30, 1936(D. MINN.). 

EVEN IF THERE HAD BEEN NO COPYRIGHT, THE AGREEMENTS WITH INDIVIDUAL
DISTRIBUTORS WOULD STILL BE VALID.  A CONTRACT CONTAINING A COVENANT IN
RESTRAINT OF TRADE IS NONETHELESS VALID IF THE RESTRAINT IS REASONABLY
NECESSARY FOR THE PROTECTION OF THE RIGHT GRANTED BY THE CONTRACT. 
CINCINNATI PACKET CO. V. BAY, 200 U.S. 179; OREGON STEAM NAVIGATION CO.
V. WINSOR, 20 WALL.  67; UNITED STATES V. ADDYSTON PIPE & STEEL CO., 85
F. 271; ALLISON V. SEIGLE, 79 F.2D 170; A. BOOTH & CO. V. DAVIS, 127 F.
875. 

SEE FOWL V. PARK, 131 U.S. 88; OREGON STEAM NAVIGATION CO. V. WINSOR,
SUPRA; MOORE V. NEW YORK COTTON EXCHANGE, 270 U.S. 593; UNITED STATES
V. GENERAL ELECTRIC CO., 272 U.S. 476; BOARD OF TRADE V. CHRISTIE GRAIN
& STOCK CO., 198 U.S. 236, 250, 252. 

THE PROTECTION GIVEN BY THE LAW TO THE COPYRIGHT OWNER IS STILL
GREATER.  APART FROM AGREEMENTS TO IMPOSE RESTRAINTS UNRELATED TO THE
REWARD OF THE STATUTORY MONOPOLY, OR TO MONOPOLIZE TRADE IN ARTICLES
NOT COVERED BY THE STATUTORY MONOPOLY, A COPYRIGHT PROPRIETOR IN
GRANTING AN EXHIBITION RIGHT MAY BIND AND RESTRAIN HIMSELF BY ANY
COVENANT WHICH HAS REASONABLE RELATION TO THE REWARD OF THE COPYRIGHT
OR THE PROTECTION OF THE GRANTED RIGHT EVEN THOUGH SUCH COVENANTS
DIRECTLY RESTRAIN INTERSTATE COMMERCE.  THE SHERMAN ANTI-TRUST ACT HAS
NO APPLICATION TO SUCH RESTRAINTS, WHICH UNDER ALL THE AUTHORITIES ARE
WITHIN THE STATUTORY MONOPOLY OF THE COPYRIGHT. 

THE DECREE MUST BE REVERSED IN SO FAR AS IT ENJOINS SEPARATE
AGREEMENTS BETWEEN EACH OF THE EXHIBITOR DEFENDANTS AND EACH OF THE
DISTRIBUTOR DEFENDANTS, NOT ACTING IN CONCERT WITH ANY OTHER
DISTRIBUTORS, TO IMPOSE RESTRICTIONS NECESSARY FOR THE PROTECTION OF
THEIR MUTUAL INTERESTS IN THE COPYRIGHT REWARD. 

THE COURT'S INFERENCE THAT THE DISTRIBUTOR DEFENDANTS AGREED AND
CONSPIRED AMONG THEMSELVES TO TAKE UNIFORM ACTION ON THE PROPOSALS MADE
BY INTERSTATE CIRCUIT, AND TO IMPOSE THE RESTRICTIONS REQUESTED BY
INTERSTATE, IS UNSUPPORTED BY THE PRECEDING FINDINGS UPON WHICH IT IS
EXPRESSLY PREDICATED, AND IS CONTRARY TO THE STIPULATED FACTS AND THE
UNDISPUTED EVIDENCE. 

IN ORDER TO MAKE OUT UNLAWFUL CONSPIRACY SOMETHING MORE THAN MERE
UNIFORMITY OF ACTION MUST BE SHOWN.  FREY & SON V. CUDAHY PACKING CO.,
256 U.S. 208.  TO WARRANT THE INJUNCTION INVALIDATING SUCH
TRANSACTIONS, THERE MUST BE A "DEFINITE FACTUAL SHOWING OF ILLEGALITY,"
I.E., A CLEAR PURPOSE TO MONOPOLIZE OR RESTRAIN TRADE.  STANDARD OIL
CO. V. UNITED STATES, 283 U.S. 163, 179.  FROM THE PLURALITY AND
SIMILARITY OF SUCH LAWFUL ACTS UNLAWFUL COMBINATION MAY NOT BE
INFERRED.  TERMINAL WAREHOUSE V. PENNSYLVANIA R. CO., 297 U.S. 500,
516. 

IF ONE WOULD INFER CONSPIRACY FROM SIMILARITY OF LAWFUL ACTS THERE
MUST BE ACCURACY IN STATEMENT OF THE FACTS UPON WHICH THE INFERENCE IS
PREDICATED, AND IF THE INFERENCE IS INCONSISTENT WITH ANY OF THE FACTS
ESTABLISHED BY AGREEMENT OF THE PARTIES IT MUST BE REJECTED.  HACKFELD
& CO. V. UNITED STATES, 197 U.S. 442; KINGS COUNTY LIGHTING CO. V.
NIXON, 268 FED. 143, 149, AFFIRMED, 258 U.S. 180. 

THE BURDEN UPON A PLAINTIFF TO PROVE HIS CASE BY SUBSTANTIVE EVIDENCE
CAN NOT BE MET BY FAILURE OF THE DEFENDANT TO CALL WITNESSES.  AS THIS
COURT STATED IN THE CASE OF NORTHERN RY. CO. V. PAGE, 274 U.S. 65, 74,
THE FAILURE OF THE DEFENDANT TO CALL A WITNESS CAN NOT BE "TAKEN AS
SUBSTANTIVE EVIDENCE OF ANY FACT."  SEE ALSO MAMMOTH OIL CO. V. UNITED
STATES, 275 U.S. 13, 52. 

THE RESTRICTIONS IN QUESTION DO NOT UNREASONABLY RESTRAIN TRADE OR
COMMERCE.  APPALACHIAN COALS, INC. V. UNITED STATES, 288 U.S. 344, 359;
NASH V. UNITED STATES, 229 U.S. 373, 376; CHICAGO BOARD OF TRADE V.
UNITED STATES, 246 U.S. 231, 238. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON APPEAL UNDER SEC. 2 OF THE ACT OF FEBRUARY 11,
1903, 32 STAT. 823, 15 U.S.C. SEC. 29, AND SEC. 238 OF THE JUDICIAL
CODE, AS AMENDED BY THE ACT OF FEBRUARY 13, 1925, 43 STAT. 936, 938, 28
U.S.C. SEC. 345, FROM A FINAL DECREE OF THE DISTRICT COURT FOR NORTHERN
TEXAS RESTRAINING APPELLANTS FROM CONTINUING IN A COMBINATION AND
CONSPIRACY CONDEMNED BY THE COURT AS A VIOLATION OF SEC. 1 OF THE
SHERMAN ANTI-TRUST ACT, 26 STAT. 209, 15 U.S.C. SEC. 1, AND FROM
ENFORCING OR RENEWING CERTAIN CONTRACTS FOUND BY THE COURT TO HAVE BEEN
ENTERED INTO IN PURSUANCE OF THE CONSPIRACY.  20 F.SUPP.  868.  UPON A
PREVIOUS APPEAL THIS COURT SET ASIDE THE DECREE AND REMANDED THE CAUSE
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS BECAUSE OF ITS FAILURE TO
STATE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY EQUITY
RULE 70 1/2.  304 U.S. 55.  THE CASE IS NOW BEFORE US ON FINDINGS OF
THE DISTRICT COURT SPECIFICALLY STATING THAT APPELLANTS DID IN FACT
AGREE WITH EACH OTHER TO ENTER INTO AND CARRY OUT THE CONTRACTS, WHICH
THE COURT FOUND TO RESULT IN UNREASONABLE AND THEREFORE UNLAWFUL
RESTRAINTS OF INTERSTATE COMMERCE. 

APPELLANTS COMPRISE THE TWO GROUPS OF DEFENDANTS IN THE DISTRICT
COURT.  THE MEMBERS OF ONE GROUP OF EIGHT CORPORATIONS WHICH ARE
DISTRIBUTORS OF MOTION PICTURE FILMS, AND THE TEXAS AGENTS OF TWO OF
THEM, ARE APPELLANTS IN NO. 270.  THE OTHER GROUP, CORPORATIONS AND
INDIVIDUALS ENGAGED IN EXHIBITING MOTION PICTURES IN TEXAS, AND SOME OF
THEM IN NEW MEXICO, APPEALS IN NO. 269.  THE DISTRIBUTOR APPELLANTS ARE
ENGAGED IN THE BUSINESS OF DISTRIBUTING IN INTERSTATE COMMERCE MOTION
PICTURE FILMS, COPYRIGHTS ON WHICH THEY OWN OR CONTROL, FOR EXHIBITION
IN THEATRES THROUGHOUT THE UNITED STATES.  THEY DISTRIBUTE ABOUT 75 PER
CENT. OF ALL FIRST-CLASS FEATURE FILMS EXHIBITED IN THE UNITED STATES. 
THEY SOLICIT FROM MOTION PICTURE THEATRE OWNERS AND MANAGERS IN TEXAS
AND OTHER STATES APPLICATIONS FOR LICENSES TO EXHIBIT FILMS, AND
FORWARD THE APPLICATIONS, WHEN RECEIVED FROM SUCH EXHIBITORS, TO THEIR
RESPECTIVE NEW YORK OFFICES, WHERE THEY ARE ACCEPTED OR REJECTED.  IF
THE APPLICATIONS ARE ACCEPTED, THE DISTRIBUTORS SHIP THE FILMS FROM
POINTS OUTSIDE THE STATES OF EXHIBITION TO THEIR EXCHANGES WITHIN THOSE
STATES, FROM WHICH, PURSUANT TO THE LICENSE AGREEMENTS, THE FILMS ARE
DELIVERED TO THE LOCAL THEATRES FOR EXHIBITION.  AFTER EXHIBITION THE
FILMS ARE RESHIPPED TO THE DISTRIBUTORS AT POINTS OUTSIDE THE STATE. 

THE EXHIBITOR GROUP OF APPELLANTS CONSISTS OF INTERSTATE CIRCUIT,
INC., AND TEXAS CONSOLIDATED THEATRES, INC., AND HOBLITZELLE AND
O'DONNELL, WHO ARE RESPECTIVELY PRESIDENT AND GENERAL MANAGER OF BOTH
AND IN ACTIVE CHARGE OF THEIR BUSINESS OPERATIONS.  THE TWO
CORPORATIONS ARE AFFILIATED WITH EACH OTHER AND WITH PARAMOUNT PICTURES
DISTRIBUTING CO., INC., ONE OF THE DISTRIBUTOR APPELLANTS. 

INTERSTATE OPERATES FORTY-THREE FIRST-RUN AND SECOND-RUN MOTION
PICTURE THEATRES, LOCATED IN SIX TEXAS CITIES.  FN1  IT HAS A COMPLETE
MONOPOLY OF FIRST-RUN THEATRES IN THESE CITIES, EXCEPT FOR ONE IN
HOUSTON OPERATED BY ONE DISTRIBUTOR'S TEXAS AGENT.  IN MOST OF THESE
THEATRES THE ADMISSION PRICE FOR ADULTS FOR THE BETTER SEATS AT NIGHT
IS 40 CENTS OR MORE.  INTERSTATE ALSO OPERATES SEVERAL SUBSEQUENT-RUN
THEATRES IN EACH OF THESE CITIES, TWENTY-TWO IN ALL, BUT IN ALL BUT
GALVESTON THERE ARE OTHER SUBSEQUENT-RUN THEATRES WHICH COMPETE WITH
BOTH ITS FIRST- AND SUBSEQUENT-RUN THEATRES IN THOSE CITIES. 

TEXAS CONSOLIDATED OPERATES SIXTY-SIX THEATRES, SOME FIRST- AND SOME
SUBSEQUENT-RUN HOUSES, IN VARIOUS CITIES AND TOWNS IN THE RIO GRANDE
VALLEY AND ELSEWHERE IN TEXAS AND IN NEW MEXICO.  IN SOME OF THESE
CITIES THERE ARE NO COMPETING THEATRES, AND IN SIX LEADING CITIES THERE
ARE NO COMPETING FIRST-RUN THEATRES.  IT HAS NO THEATRES IN THE SIX
TEXAS CITIES IN WHICH INTERSTATE OPERATES.  THAT INTERSTATE AND TEXAS
CONSOLIDATED DOMINATE THE MOTION PICTURE BUSINESS IN THE CITIES WHERE
THEIR THEATRES ARE LOCATED IS INDICATED BY THE FACT THAT AT THE TIME OF
THE CONTRACTS IN QUESTION INTERSTATE AND CONSOLIDATED EACH CONTRIBUTED
MORE THAN 74 PER CENT. OF ALL THE LICENSE FEES PAID BY THE MOTION
PICTURE THEATRES IN THEIR RESPECTIVE TERRITORIES TO THE DISTRIBUTOR
APPELLANTS.  FN2 

ON JULY 11, 1934, FOLLOWING A PREVIOUS COMMUNICATION ON THE SUBJECT
TO THE EIGHT BRANCH MANAGERS OF THE DISTRIBUTOR APPELLANTS, O'DONNELL,
THE MANAGER OF INTERSTATE AND CONSOLIDATED, SENT TO EACH OF THEM A
LETTER  FN3  ON THE LETTERHEAD OF INTERSTATE, EACH LETTER NAMING ALL OF
THEM AS ADDRESSEES, IN WHICH HE ASKED COMPLIANCE WITH TWO DEMANDS AS A
CONDITION OF INTERSTATE'S CONTINUED EXHIBITION OF THE DISTRIBUTORS'
FILMS IN ITS 'A' OR FIRST-RUN THEATRES AT A NIGHT ADMISSION OF 40 CENTS
OR MORE.  FN4  ONE DEMAND WAS THAT THE DISTRIBUTORS "AGREE THAT IN
SELLING THEIR PRODUCT TO SUBSEQUENT RUNS, THAT THIS 'A' PRODUCT WILL
NEVER BE EXHIBITED AT ANY TIME OR IN ANY THEATRE AT A SMALLER ADMISSION
PRICE THAN 25[ FOR ADULTS IN THE EVENING."  THE OTHER WAS THAT "ON 'A'
PICTURES WHICH ARE EXHIBITED AT A NIGHT ADMISSION OF 40[ OR MORE - THEY
SHALL NEVER BE EXHIBITED IN CONJUNCTION WITH ANOTHER FEATURE PICTURE
UNDER THE SO-CALLED POLICY OF DOUBLE FEATURES."  THE LETTER ADDED THAT
WITH RESPECT TO THE "RIO GRANDE VALLEY SITUATION," WITH WHICH
CONSOLIDATED ALONE WAS CONCERNED, "WE MUST INSIST THAT ALL PICTURES
EXHIBITED IN OUR 'A' THEATRES AT A MAXIMUM NIGHT ADMISSION PRICE OF 35[
MUST ALSO BE RESTRICTED TO SUBSEQUENT RUNS IN THE VALLEY AT 25[." 

THE ADMISSION PRICE CUSTOMARILY CHARGED FOR PREFERRED SEATS AT NIGHT
IN INDEPENDENTLY OPERATED SUBSEQUENT-RUN THEATRES IN TEXAS AT THE TIME
OF THESE LETTERS WAS LESS THAN 25 CENTS.  IN SEVENTEEN OF THE EIGHTEEN
INDEPENDENT THEATRES OF THIS KIND WHOSE OPERATIONS WERE DESCRIBED BY
WITNESSES THE ADMISSION PRICE WAS LESS THAN 25 CENTS.  IN ONE ONLY WAS
IT 25 CENTS.  IN MOST OF THEM THE ADMISSION WAS 15 CENTS OR LESS.  IT
WAS ALSO THE GENERAL PRACTICE IN THOSE THEATRES TO PROVIDE DOUBLE BILLS
EITHER ON CERTAIN DAYS OF THE WEEK OR WITH ANY FEATURE PICTURE WHICH
WAS WEAK IN DRAWING POWER.  THE DISTRIBUTOR APPELLANTS HAD GENERALLY
PROVIDED IN THEIR LICENSE CONTRACTS FOR A MINIMUM ADMISSION PRICE OF 10
OR 15 CENTS, AND THREE OF THEM HAD INCLUDED PROVISIONS RESTRICTING
DOUBLEBILLING.  BUT NONE WAS AT ANY TIME PREVIOUSLY SUBJECT TO
CONTRACTUAL COMPULSION TO CONTINUE THE RESTRICTIONS.  THE TRIAL COURT
FOUND THAT THE PROPOSED RESTRICTIONS CONSTITUTED AN IMPORTANT DEPARTURE
FROM PRIOR PRACTICE. 

THE LOCAL REPRESENTATIVES OF THE DISTRIBUTORS, HAVING NO AUTHORITY TO
ENTER INTO THE PROPOSED AGREEMENTS, COMMUNICATED THE PROPOSAL TO THEIR
HOME OFFICES.  CONFERENCES FOLLOWED BETWEEN HOBLITZELLE AND O'DONNELL,
ACTING FOR INTERSTATE AND CONSOLIDATED, AND THE REPRESENTATIVES OF THE
VARIOUS DISTRIBUTORS.  IN THESE CONFERENCES EACH DISTRIBUTOR WAS
REPRESENTED BY ITS LOCAL BRANCH MANAGER AND BY ONE OR MORE SUPERIOR
OFFICIALS FROM OUTSIDE THE STATE OF TEXAS.  IN THE COURSE OF THEM EACH
DISTRIBUTOR AGREED WITH INTERSTATE FOR THE 1934-35 SEASON TO IMPOSE
BOTH THE DEMANDED RESTRICTIONS UPON THEIR SUBSEQUENT-RUN LICENSEES IN
THE SIX TEXAS CITIES SERVED BY INTERSTATE, EXCEPT AUSTIN AND
GALVESTON.  WHILE ONLY TWO OF THE DISTRIBUTORS INCORPORATED THE
AGREEMENT TO IMPOSE THE RESTRICTIONS IN THEIR LICENSE CONTRACTS WITH
INTERSTATE, THE EVIDENCE ESTABLISHES, AND IT IS NOT DENIED, THAT ALL
JOINED IN THE AGREEMENT, FOUR OF THEM AFTER SOME DELAY IN NEGOTIATING
TERMS OTHER THAN THE RESTRICTIONS AND NOT NOW MATERIAL.  THESE
AGREEMENTS FOR THE RESTRICTIONS - WITH THE IMMATERIAL EXCEPTIONS NOTED
FN5  - WERE CARRIED INTO EFFECT BY EACH OF THE DISTRIBUTORS' IMPOSING
THEM ON THEIR SUBSEQUENT-RUN LICENSEES IN THE FOUR TEXAS CITIES DURING
THE 1934-35 SEASON.  ONE AGREEMENT, THAT OF METRO-GOLDWYN-MAYER
DISTRIBUTING CORPORATION, WAS FOR THREE YEARS.  THE OTHERS WERE RENEWED
IN THE TWO FOLLOWING SEASONS AND ALL WERE IN FORCE WHEN THE PRESENT
SUIT WAS BEGUN. 

NONE OF THE DISTRIBUTORS YIELDED TO THE DEMAND THAT SUBSEQUENT RUNS
IN TOWNS IN THE RIO GRANDE VALLEY SERVED BY CONSOLIDATED SHOULD BE
RESTRICTED.  ONE DISTRIBUTOR, PARAMOUNT, WHICH WAS AFFILIATED WITH
CONSOLIDATED, AGREED TO IMPOSE THE RESTRICTIONS IN CERTAIN OTHER TEXAS
AND NEW MEXICO CITIES. 

THE TRIAL COURT FOUND THAT THE DISTRIBUTOR APPELLANTS AGREED AND
CONSPIRED AMONG THEMSELVES TO TAKE UNIFORM ACTION UPON THE PROPOSALS
MADE BY INTERSTATE, AND THAT THEY AGREED AND CONSPIRED WITH EACH OTHER
AND WITH INTERSTATE TO IMPOSE THE DEMANDED RESTRICTIONS UPON ALL
SUBSEQUENT-RUN EXHIBITORS IN DALLAS, FORT WORTH, HOUSTON AND SAN
ANTONIO; THAT THEY CARRIED OUT THE AGREEMENT BY IMPOSING THE
RESTRICTIONS UPON THEIR SUBSEQUENT-RUN LICENSEES IN THOSE CITIES,
CAUSING SOME OF THEM TO INCREASE THEIR ADMISSION PRICE TO 25 CENTS,
EITHER GENERALLY OR WHEN RESTRICTED PICTURES WERE SHOWN, AND TO ABANDON
DOUBLEBILLING OF ALL SUCH PICTURES, AND CAUSING THE OTHER SUBSEQUENT
RUN EXHIBITORS, WHO WERE EITHER UNABLE OR UNWILLING TO ACCEPT THE
RESTRICTIONS, TO BE DEPRIVED OF ANY OPPORTUNITY TO EXHIBIT THE
RESTRICTED PICTURES, WHICH WERE THE BEST AND MOST POPULAR OF ALL NEW
FEATURE PICTURES; THAT THE EFFECT OF THE RESTRICTIONS UPON "LOW-INCOME
MEMBERS OF THE COMMUNITY" PATRONIZING THE THEATRES OF THESE EXHIBITORS
WAS TO WITHHOLD FROM THEM ALTOGETHER THE "BEST ENTERTAINMENT FURNISHED
BY THE MOTION PICTURE INDUSTRY"; AND THAT THE RESTRICTIONS OPERATED TO
INCREASE THE INCOME OF THE DISTRIBUTORS AND OF INTERSTATE AND TO
DEFLECT ATTENDANCE FROM LATER-RUN EXHIBITORS WHO YIELDED TO THE
RESTRICTIONS TO THE FIRST-RUN THEATRES OF INTERSTATE. 

THE COURT CONCLUDED AS MATTERS OF LAW THAT THE AGREEMENT OF THE
DISTRIBUTORS WITH EACH OTHER AND THOSE WITH INTERSTATE TO IMPOSE THE
RESTRICTIONS UPON SUBSEQUENT-RUN EXHIBITORS AND THE CARRYING OF THE
AGREEMENTS INTO EFFECT, WITH THE AID AND PARTICIPATION OF HOBLITZELLE
AND O'DONNELL, CONSTITUTED A COMBINATION AND CONSPIRACY IN RESTRAINT OF
INTERSTATE COMMERCE IN VIOLATION OF THE SHERMAN ACT.  IT ALSO CONCLUDED
THAT EACH SEPARATE AGREEMENT BETWEEN INTERSTATE AND A DISTRIBUTOR THAT
INTERSTATE SHOULD SUBJECT ITSELF TO THE RESTRICTIONS IN ITS SUBSEQUENT
RUN THEATRES AND THAT THE DISTRIBUTORS SHOULD IMPOSE THE RESTRICTIONS
ON ALL SUBSEQUENT-RUN THEATRES IN THE TEXAS CITIES AS A CONDITION OF
SUPPLYING THEM WITH ITS FEATURE PICTURES, WAS LIKEWISE A VIOLATION OF
THE ACT. 

IT ACCORDINGLY ENJOINED THE CONSPIRACY AND RESTRAINED THE
DISTRIBUTORS FROM ENFORCING THE RESTRICTIONS IN THEIR LICENSE
AGREEMENTS WITH SUBSEQUENT-RUN EXHIBITORS  FN6  AND FROM ENFORCING THE
CONTRACTS OR ANY OF THEM.  THIS INCLUDED BOTH THE CONTRACTS OF
INTERSTATE WITH THE DISTRIBUTORS AND THE CONTRACT BETWEEN CONSOLIDATED
AND PARAMOUNT, WHEREBY THE LATTER AGREED TO IMPOSE THE RESTRICTIONS
UPON SUBSEQUENT-RUN THEATRES IN TEXAS AND NEW MEXICO SERVED BY IT. 

APPELLANTS ASSAIL THE DECREE OF THE DISTRICT COURT UPON THREE
PRINCIPAL GROUNDS:  (A) THAT THE FINDING OF AGREEMENT AND CONSPIRACY
AMONG THE DISTRIBUTOR APPELLANTS TO IMPOSE THE RESTRICTIONS UPON LATER
RUN EXHIBITORS IS NOT SUPPORTED BY THE COURT'S SUBSIDIARY FINDINGS OR
BY THE EVIDENCE; (B) THAT THE SEVERAL SEPARATE CONTRACTS ENTERED INTO
BY INTERSTATE WITH THE DISTRIBUTORS ARE WITHIN THE PROTECTION OF THE
COPYRIGHT ACT AND CONSEQUENTLY ARE NOT VIOLATIONS OF THE SHERMAN ACT;
AND (C) THAT THE RESTRICTIONS DO NOT UNREASONABLY RESTRAIN INTERSTATE
COMMERCE WITHIN THE PROVISIONS OF THE SHERMAN ACT. 

THE AGREEMENT AMONG THE DISTRIBUTORS. 

ALTHOUGH THE FILMS WERE COPYRIGHTED, APPELLANTS DO NOT DENY THAT THE
CONSPIRACY CHARGE IS ESTABLISHED IF THE DISTRIBUTORS AGREED AMONG
THEMSELVES TO IMPOSE THE RESTRICTIONS UPON SUBSEQUENT-RUN EXHIBITORS. 
STRAUS V. AMERICAN PUBLISHERS' ASSN., 231 U.S. 222; PARAMOUNT FAMOUS
LASKY CORP. V. UNITED STATES, 282 U.S. 30.  AS IS USUAL IN CASES OF
ALLEGED UNLAWFUL AGREEMENTS TO RESTRAIN COMMERCE, THE GOVERNMENT IS
WITHOUT THE AID OF DIRECT TESTIMONY THAT THE DISTRIBUTORS ENTERED INTO
ANY AGREEMENT WITH EACH OTHER TO IMPOSE THE RESTRICTIONS UPON
SUBSEQUENT-RUN EXHIBITORS.  IN ORDER TO ESTABLISH AGREEMENT IT IS
COMPELLED TO RELY ON INFERENCES DRAWN FROM THE COURSE OF CONDUCT OF THE
ALLEGED CONSPIRATORS. 

THE TRIAL COURT DREW THE INFERENCE OF AGREEMENT FROM THE NATURE OF
THE PROPOSALS MADE ON BEHALF OF INTERSTATE AND CONSOLIDATED; FROM THE
MANNER IN WHICH THEY WERE MADE; FROM THE SUBSTANTIAL UNANIMITY OF
ACTION TAKEN UPON THEM BY THE DISTRIBUTORS; AND FROM THE FACT THAT
APPELLANTS DID NOT CALL AS WITNESSES ANY OF THE SUPERIOR OFFICIALS WHO
NEGOTIATED THE CONTRACTS WITH INTERSTATE OR ANY OFFICIAL WHO, IN THE
NORMAL COURSE OF BUSINESS, WOULD HAVE HAD KNOWLEDGE OF THE EXISTENCE OR
NON-EXISTENCE OF SUCH AN AGREEMENT AMONG THE DISTRIBUTORS.  THIS
CONCLUSION IS CHALLENGED BY APPELLANTS BECAUSE NOT SUPPORTED BY
SUBSIDIARY FINDINGS OR BY THE EVIDENCE.  WE THINK THIS INFERENCE OF THE
TRIAL COURT WAS RIGHTLY DRAWN FROM THE EVIDENCE.  IN THE VIEW WE TAKE
OF THE LEGAL EFFECT OF THE COOPERATIVE ACTION OF THE DISTRIBUTOR
APPELLANTS IN CARRYING INTO EFFECT THE RESTRICTIONS IMPOSED UPON
SUBSEQUENT-RUN THEATRES IN THE FOUR TEXAS CITIES AND OF THE LEGAL
EFFECT OF THE SEPARATE AGREEMENTS FOR THE IMPOSITION OF THOSE
RESTRICTIONS ENTERED INTO BETWEEN INTERSTATE AND EACH OF THE
DISTRIBUTORS, IT IS UNNECESSARY TO DISCUSS IN GREAT DETAIL THE EVIDENCE
CONCERNING THIS ASPECT OF THE CASE. 

THE O'DONNELL LETTER NAMED ON ITS FACE AS ADDRESSEES THE EIGHT LOCAL
REPRESENTATIVES OF THE DISTRIBUTORS, AND SO FROM THE BEGINNING EACH OF
THE DISTRIBUTORS KNEW THAT THE PROPOSALS WERE UNDER CONSIDERATION BY
THE OTHERS.  EACH WAS AWARE THAT ALL WERE IN ACTIVE COMPETITION AND
THAT WITHOUT SUBSTANTIALLY UNANIMOUS ACTION WITH RESPECT TO THE
RESTRICTIONS FOR ANY GIVEN TERRITORY THERE WAS RISK OF A SUBSTANTIAL
LOSS OF THE BUSINESS AND GOOD WILL OF THE SUBSEQUENT-RUN AND
INDEPENDENT EXHIBITORS, BUT THAT WITH IT THERE WAS THE PROSPECT OF
INCREASED PROFITS.  THERE WAS, THEREFORE, STRONG MOTIVE FOR CONCERTED
ACTION, FULL ADVANTAGE OF WHICH WAS TAKEN BY INTERSTATE AND
CONSOLIDATED IN PRESENTING THEIR DEMANDS TO ALL IN A SINGLE DOCUMENT. 

THERE WAS RISK, TOO, THAT WITHOUT AGREEMENT DIVERSITY OF ACTION WOULD
FOLLOW.  COMPLIANCE WITH THE PROPOSALS INVOLVED A RADICAL DEPARTURE
FROM THE PREVIOUS BUSINESS PRACTICES OF THE INDUSTRY AND A DRASTIC
INCREASE IN ADMISSION PRICES OF MOST OF THE SUBSEQUENT-RUN THEATRES. 
ACCEPTANCE OF THE PROPOSALS WAS DISCOURAGED BY AT LEAST THREE OF THE
DISTRIBUTORS' LOCAL MANAGERS.  INDEPENDENT EXHIBITORS MET AND ORGANIZED
A FUTILE PROTEST WHICH THEY PRESENTED TO THE REPRESENTATIVES OF
INTERSTATE AND CONSOLIDATED.  WHILE AS A RESULT OF INDEPENDENT
NEGOTIATIONS EITHER OF THE TWO RESTRICTIONS WITHOUT THE OTHER COULD
HAVE BEEN PUT INTO EFFECT BY ANY ONE OR MORE OF THE DISTRIBUTORS AND IN
ANY ONE OR MORE OF THE TEXAS CITIES SERVED BY INTERSTATE, THE
NEGOTIATIONS WHICH ENSUED AND WHICH IN FACT DID RESULT IN MODIFICATIONS
OF THE PROPOSALS RESULTED IN SUBSTANTIALLY UNANIMOUS ACTION OF THE
DISTRIBUTORS, BOTH AS TO THE TERMS OF THE RESTRICTIONS AND IN THE
SELECTION OF THE FOUR CITIES WHERE THEY WERE TO OPERATE. 

ONE DISTRIBUTOR, IT IS TRUE, DID NOT AGREE TO IMPOSE THE RESTRICTIONS
IN HOUSTON, BUT THIS WAS EVIDENTLY BECAUSE IT DID NOT GRANT LICENSES TO
ANY SUBSEQUENT-RUN EXHIBITOR IN THAT CITY, WHERE ITS OWN AFFILIATE
OPERATED A FIRST-RUN THEATRE.  FN7  THE PROPOSAL WAS UNANIMOUSLY
REJECTED AS TO GALVESTON AND AUSTIN, AS WAS THE REQUEST THAT THE
RESTRICTIONS SHOULD BE EXTENDED TO THE CITIES OF THE RIO GRANDE VALLEY
SERVED BY CONSOLIDATED.  WE MAY INFER THAT GALVESTON WAS OMITTED
BECAUSE IN THAT CITY THERE WERE NO SUBSEQUENT-RUN THEATRES IN
COMPETITION WITH INTERSTATE.  BUT WE ARE UNABLE TO FIND IN THE RECORD
ANY PERSUASIVE EXPLANATION, OTHER THAN AGREED CONCERT OF ACTION, OF THE
SINGULAR UNANIMITY OF ACTION ON THE PART OF THE DISTRIBUTORS BY WHICH
THE PROPOSALS WERE CARRIED INTO EFFECT AS WRITTEN IN FOUR TEXAS CITIES
BUT NOT IN A FIFTH OR IN THE RIO GRANDE VALLEY.  NUMEROUS VARIATIONS IN
THE FORM OF THE PROVISIONS IN THE DISTRIBUTORS' LICENSE AGREEMENTS AND
THE FACT THAT IN LATER YEARS TWO OF THEM EXTENDED THE RESTRICTIONS INTO
ALL SIX CITIES, DO NOT WEAKEN THE SIGNIFICANCE OR FORCE OF THE NATURE
OF THE RESPONSE TO THE PROPOSALS MADE BY ALL THE DISTRIBUTOR
APPELLANTS.  IT TAXES CREDULITY TO BELIEVE THAT THE SEVERAL
DISTRIBUTORS WOULD, IN THE CIRCUMSTANCES, HAVE ACCEPTED AND PUT INTO
OPERATION WITH SUBSTANTIAL UNANIMITY SUCH FAR-REACHING CHANGES IN THEIR
BUSINESS METHODS WITHOUT SOME UNDERSTANDING THAT ALL WERE TO JOIN, AND
WE REJECT AS BEYOND THE RANGE OF PROBABILITY THAT IT WAS THE RESULT OF
MERE CHANCE. 

APPELLANTS PRESENT AN ELABORATE ARGUMENT, BASED ON THE MINUTIAE OF
THE EVIDENCE, THAT OTHER INFERENCES ARE TO BE DRAWN WHICH EXPLAIN, AT
LEAST IN SOME RESPECTS, THE UNANIMITY OF ACTION BOTH IN ACCEPTING THE
RESTRICTIONS FOR SOME TERRITORIES AND REJECTING THEM FOR OTHERS.  IT IS
SAID THAT THE REJECTION OF CONSOLIDATED'S PROPOSAL FOR THE RIO GRANDE
VALLEY MAY HAVE BEEN DUE TO THE FACT THAT THE DEMAND WITH RESPECT TO
THAT TERRITORY DIFFERED MATERIALLY FROM THAT DIRECTED TO THE SIX TEXAS
CITIES.  IT IS URGED THAT THE PROPOSAL FOR THE VALLEY WAS THAT ALL
PICTURES ONCE SHOWN IN A FIRST-RUN THEATRE WITH A 35 CENTS ADMISSION
SHOULD NOT THEREAFTER BE EXHIBITED IN ANY CITY IN THE VALLEY FOR LESS
THAN 25 CENTS ADMISSION, WHILE THE DEMAND IN BEHALF OF INTERSTATE WITH
RESPECT TO THE SIX TEXAS CITIES WAS THAT 'A' PICTURES, AFTER A FIRST
RUN IN THEATRES CHARGING 40 CENTS ADMISSION OR MORE, SHOULD NOT
THEREAFTER BE EXHIBITED IN THE SAME CITY FOR LESS THAN 25 CENTS
ADMISSION.  BUT REFERENCE TO THE O'DONNELL LETTER SHOWS THAT BOTH
DEMANDS RELATED TO PICTURES SHOWN IN A FIRST-RUN OR 'A' THEATRE AND
WERE NOT IN TERMS LIMITED TO SUBSEQUENT-RUN EXHIBITIONS IN THE SAME
CITY IN WHICH THE FIRST RUN HAD OCCURRED.  THE RECORD DISCLOSES NO
REASON FOR THE DISTINCTION TAKEN BETWEEN FIRST-RUN THEATRES IN THE SIX
CITIES CHARGING AN ADMISSION OF 40 CENTS OR MORE AND THOSE IN THE
VALLEY SERVED BY CONSOLIDATED CHARGING 35 CENTS, OTHER THAN THE FACT
THAT THE CITIES THERE WERE SMALLER. 

THE TRIAL COURT, INTERPRETING THE LETTER IN THE LIGHT OF THE WHOLE
EVIDENCE, WHICH SHOWED UNMISTAKABLY THAT ONE PURPOSE OF BOTH DEMANDS
WAS TO PROTECT FIRST-RUN HOUSES FROM COMPETITION OF SUBSEQUENT-RUN
HOUSES, CONCLUDED THAT THE SUBSTANCE OF THE PROPOSALS IN ONE CASE AS IN
THE OTHER WAS THAT THE RESTRICTIONS UPON THE SUBSEQUENT-RUN THEATRES
WERE TO BE IMPOSED ONLY IN THE SAME CITY IN WHICH THE FIRST RUN HAD
OCCURRED.  WE AGREE WITH ITS CONCLUSION, BUT IN ANY EVENT SINCE THE
DEMAND MADE BY INTERSTATE WAS PHRASED AS BROADLY AS THAT MADE BY TEXAS
CONSOLIDATED, BOTH AS TO THE KIND OF PICTURES AFFECTED AND THE SCOPE OF
THE RESTRICTION, WE CAN FIND NO BASIS FOR SAYING THAT ONE WAS MORE
LIMITED IN ITS ESSENTIALS THAN THE OTHER, OR THAT ANY EXPLANATION IS
THUS AFFORDED OF THE UNANIMOUS ACCEPTANCE OF THE DEMANDS OF INTERSTATE
IN FOUR OF THE SIX CITIES AFFECTED BY THE PROPOSAL, AND THE UNANIMOUS
REJECTION OF THE DEMAND OF CONSOLIDATED.  IN THE FACE OF THIS ACTION
AND SIMILAR UNANIMITY WITH RESPECT TO OTHER FEATURES OF THE PROPOSALS,
AND THE STRONG MOTIVE FOR SUCH UNANIMITY OF ACTION, WE DECLINE TO
SPECULATE WHETHER THERE MAY HAVE BEEN OTHER AND MORE LEGITIMATE REASONS
FOR SUCH ACTION NOT DISCLOSED BY THE RECORD, BUT WHICH, IF THEY
EXISTED, WERE KNOWN TO APPELLANTS. 

THE FAILURE OF THE DISTRIBUTORS TO MAKE ANY SUBSTANTIAL CHANGES IN
THEIR BUSINESS PRACTICES IN DEALING WITH EXHIBITORS IN AUSTIN FOR THE
SEASON 1934-35; THEIR FAILURE TO UNITE IN IMPOSING THE RESTRICTION AS
TO ADMISSION PRICES IN SUBSEQUENT-RUN THEATRES IN THAT CITY; AND THEIR
FAILURE TO ENTER INTO THE PROPOSED RESTRICTIVE AGREEMENT WITH
INTERSTATE FOR AUSTIN, ARE LIKEWISE UNEXPLAINED BY ANY INFERENCES TO BE
DRAWN FROM THE RECORD.  THE FACTS THAT THREE OF THE DISTRIBUTORS
CONTINUED THEIR ESTABLISHED PRACTICE THERE, AS ELSEWHERE, OF PLACING
RESTRICTIONS AGAINST DOUBLE-BILLING IN THEIR LICENSE CONTRACTS; THAT
THE 25 CENTS ADMISSION RESTRICTION APPEARED IN THE AUSTIN LICENSE
AGREEMENTS OF ONE DISTRIBUTOR FOR THAT YEAR; AND THAT CERTAIN OF THE
DISTRIBUTORS INCLUDED THE RESTRICTIONS IN THEIR AUSTIN LICENSE
AGREEMENTS IN LATER YEARS, DO NOT MILITATE AGAINST THIS CONCLUSION. 
TAKEN TOGETHER, THE CIRCUMSTANCES OF THE CASE WHICH WE HAVE MENTIONED,
WHEN UNCONTRADICTED AND WITH NO MORE EXPLANATION THAN THE RECORD
AFFORDS, JUSTIFY THE INFERENCE THAT THE DISTRIBUTORS ACTED IN CONCERT
AND IN COMMON AGREEMENT IN IMPOSING THE RESTRICTIONS UPON THEIR
LICENSEES IN THE FOUR TEXAS CITIES. 

THIS INFERENCE WAS SUPPORTED AND STRENGTHENED WHEN THE DISTRIBUTORS,
WITH LIKE UNANIMITY, FAILED TO TENDER THE TESTIMONY, AT THEIR COMMAND,
OF ANY OFFICER OR AGENT OF A DISTRIBUTOR WHO KNEW, OR WAS IN A POSITION
TO KNOW, WHETHER IN FACT AN AGREEMENT HAD BEEN REACHED AMONG THEM FOR
CONCERTED ACTION.  WHEN THE PROOF SUPPORTED, AS WE THINK IT DID, THE
INFERENCE OF SUCH CONCERT, THE BURDEN RESTED ON APPELLANTS OF GOING
FORWARD WITH THE EVIDENCE TO EXPLAIN AWAY OR CONTRADICT IT.  THEY
UNDERTOOK TO CARRY THAT BURDEN BY CALLING UPON LOCAL MANAGERS OF THE
DISTRIBUTORS TO TESTIFY THAT THEY HAD ACTED INDEPENDENTLY OF THE OTHER
DISTRIBUTORS, AND THAT THEY DID NOT HAVE CONFERENCES WITH OR REACH
AGREEMENTS WITH THE OTHER DISTRIBUTORS OR THEIR REPRESENTATIVES.  THE
FAILURE UNDER THE CIRCUMSTANCES TO CALL AS WITNESSES THOSE OFFICERS WHO
DID HAVE AUTHORITY TO ACT FOR THE DISTRIBUTORS AND WHO WERE IN A
POSITION TO KNOW WHETHER THEY HAD ACTED IN PURSUANCE OF AGREEMENT IS
ITSELF PERSUASIVE THAT THEIR TESTIMONY, IF GIVEN, WOULD HAVE BEEN
UNFAVORABLE TO APPELLANTS.  THE PRODUCTION OF WEAK EVIDENCE WHEN STRONG
IS AVAILABLE CAN LEAD ONLY TO THE CONCLUSION THAT THE STRONG WOULD HAVE
BEEN ADVERSE.  CLIFTON V. UNITED STATES, 4 HOW.  242, 247.  SILENCE
THEN BECOMES EVIDENCE OF THE MOST CONVINCING CHARACTER.  RUNKLE V.
BURNHAM, 153 U.S. 216, 225; KIRBY V. TALLMADGE, 160 U.S. 379, 383;
BILOKUMSKY V. TOD, 263 U.S. 149, 153, 154; VAJTAUER V. COMMISSIONER OF
IMMIGRATION, 273 U.S. 103, 111, 112; MAMMOTH OIL CO. V. UNITED STATES,
275 U.S. 13, 52; LOCAL 167 V. UNITED STATES, 291 U.S. 293, 298. 

WHILE THE DISTRICT COURT'S FINDING OF AN AGREEMENT OF THE
DISTRIBUTORS AMONG THEMSELVES IS SUPPORTED BY THE EVIDENCE, WE THINK
THAT IN THE CIRCUMSTANCES OF THIS CASE SUCH AGREEMENT FOR THE
IMPOSITION OF THE RESTRICTIONS UPON SUBSEQUENT-RUN EXHIBITORS WAS NOT A
PREREQUISITE TO AN UNLAWFUL CONSPIRACY.  IT WAS ENOUGH THAT, KNOWING
THAT CONCERTED ACTION WAS CONTEMPLATED AND INVITED, THE DISTRIBUTORS
GAVE THEIR ADHERENCE TO THE SCHEME AND PARTICIPATED IN IT.  EACH
DISTRIBUTOR WAS ADVISED THAT THE OTHERS WERE ASKED TO PARTICIPATE; EACH
KNEW THAT COOPERATION WAS ESSENTIAL TO SUCCESSFUL OPERATION OF THE
PLAN.  THEY KNEW THAT THE PLAN, IF CARRIED OUT, WOULD RESULT IN A
RESTRAINT OF COMMERCE, WHICH, WE WILL PRESENTLY POINT OUT, WAS
UNREASONABLE WITHIN THE MEANING OF THE SHERMAN ACT, AND KNOWING IT, ALL
PARTICIPATED IN THE PLAN.  THE EVIDENCE IS PERSUASIVE THAT EACH
DISTRIBUTOR EARLY BECAME AWARE THAT THE OTHERS HAD JOINED.  WITH THAT
KNOWLEDGE THEY RENEWED THE ARRANGEMENT AND CARRIED IT INTO EFFECT FOR
THE TWO SUCCESSIVE YEARS. 

IT IS ELEMENTARY THAT AN UNLAWFUL CONSPIRACY MAY BE AND OFTEN IS
FORMED WITHOUT SIMULTANEOUS ACTION OR AGREEMENT ON THE PART OF THE
CONSPIRATORS.  SCHENCK V. UNITED STATES, 253 F. 212, 213, AFF'D, 249
U.S. 47; LEVEY V. UNITED STATES, 92 F.2D 688, 691.  ACCEPTANCE BY
COMPETITORS, WITHOUT PREVIOUS AGREEMENT, OF AN INVITATION TO
PARTICIPATE IN A PLAN, THE NECESSARY CONSEQUENCE OF WHICH, IF CARRIED
OUT, IS RESTRAINT OF INTERSTATE COMMERCE, IS SUFFICIENT TO ESTABLISH AN
UNLAWFUL CONSPIRACY UNDER THE SHERMAN ACT.  EASTERN STATES LUMBER ASSN.
V. UNITED STATES, 234 U.S. 600; LAWLOR V. LOEWE, 235 U.S. 522, 534;
AMERICAN COLUMN CO. V. UNITED STATES, 257 U.S. 377; UNITED STATES V.
AMERICAN LINSEED OIL CO., 262 U.S. 371. 

THE PROTECTION AFFORDED BY THE COPYRIGHT ACT TO THE CONTRACTS BETWEEN
INTERSTATE AND THE DISTRIBUTORS. 

THE DECREE BELOW ENJOINED ENFORCEMENT AND RENEWAL OF THE SEPARATE
AGREEMENTS BETWEEN EACH DISTRIBUTOR AND INTERSTATE AND OF THE CONTRACT
BETWEEN PARAMOUNT AND CONSOLIDATED IMPOSING THE RESTRICTIONS UPON LATER
RUN THEATRES IN CERTAIN CITIES IN TEXAS AND NEW MEXICO, ALTHOUGH THE
COURT FOUND NO CONSPIRACY AMONG THE DISTRIBUTORS TO EFFECT THIS LATTER
RESTRICTION.  APPELLANTS ASSAIL THIS PART OF THE DECREE ON THE GROUND
THAT SUCH SEPARATE AGREEMENTS, IF ENTERED INTO WITHOUT AGREEMENT OR
CONCERT AMONG THE DISTRIBUTORS, ARE A LEGITIMATE EXERCISE OF THE
MONOPOLY SECURED TO THE DISTRIBUTORS BY THEIR COPYRIGHTS. 

UNDER SEC. 1 OF THE COPYRIGHT ACT, 35 STAT. 1075, 17 U.S.C. SEC. 1,
THE OWNERS OF THE COPYRIGHT OF A MOTION PICTURE FILM ACQUIRE THE RIGHT
TO EXHIBIT THE PICTURE AND TO GRANT AN EXCLUSIVE OR RESTRICTIVE LICENSE
TO OTHERS TO EXHIBIT IT.  SEE MANNERS V. MOROSCO, 252 U.S. 317. 
APPELLANTS ARGUE THAT THE DISTRIBUTORS WERE FREE TO LICENSE THE FILMS
FOR EXHIBITION SUBJECT TO THE RESTRICTIONS, JUST AS A PATENTEE IN A
LICENSE TO MANUFACTURE AND SELL THE PATENTED ARTICLE MAY FIX THE PRICE
AT WHICH THE LICENSEE MAY SELL IT.  BEMENT V. NATIONAL HARROW CO., 186
U.S. 70; UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476.  THAT THE
PARALLEL IS NOT COMPLETE IS OBVIOUS.  BECAUSE A PATENTEE HAS POWER TO
CONTROL THE PRICE AT WHICH HIS LICENSEE MAY SELL THE PATENTED ARTICLE,
IT DOES NOT FOLLOW THAT THE OWNER OF A COPYRIGHT CAN DICTATE THAT OTHER
PICTURES MAY NOT BE SHOWN WITH THE LICENSED FILM OR THE ADMISSION PRICE
WHICH SHALL BE PAID FOR AN ENTERTAINMENT WHICH INCLUDES FEATURES OTHER
THAN THE PARTICULAR PICTURE LICENSED.  CF. MOTION PICTURE PATENTS CO.
V. UNIVERSAL FILM MFG. CO., 243 U.S. 502; CARBICE CORPORATION V.
AMERICAN PATENTS DEVELOPMENT CORP., 283 U.S. 27; LEITCH MANUFACTURING
CO. V. BARBER CO., 302 U.S. 458. 

WE HAVE NO OCCASION NOW TO PASS UPON THESE OR RELATED QUESTIONS. 
GRANTED THAT EACH DISTRIBUTOR, IN THE PROTECTION OF HIS OWN COPYRIGHT
MONOPOLY, WAS FREE TO IMPOSE THE PRESENT RESTRICTIONS UPON HIS
LICENSEES, WE ARE NEVERTHELESS OF THE OPINION THAT THEY WERE NOT FREE
TO USE THEIR COPYRIGHTS AS IMPLEMENTS FOR RESTRAINING COMMERCE IN ORDER
TO PROTECT INTERSTATE'S MOTION PICTURE THEATRE MONOPOLY BY SUPPRESSING
COMPETITION WITH IT.  THE RESTRICTIONS IMPOSED UPON INTERSTATE'S
COMPETITORS DID NOT HAVE THEIR ORIGIN IN THE VOLUNTARY ACT OF THE
DISTRIBUTORS OR ANY OF THEM.  THEY GAVE EFFECT TO THE WILL AND WERE
SUBJECT TO THE CONTROL OF INTERSTATE, NOT BY VIRTUE OF ANY COPYRIGHT OF
INTERSTATE, FOR IT HAD NONE, BUT THROUGH ITS CONTRACT WITH EACH
DISTRIBUTOR.  INTERSTATE WAS ABLE TO ACQUIRE THE CONTROL AND IMPOSE ITS
WILL BY FORCE OF ITS MONOPOLY OF FIRST-RUN THEATRES IN THE PRINCIPAL
CITIES OF TEXAS AND THE THREAT TO USE ITS MONOPOLY POSITION AGAINST
COPYRIGHT OWNERS WHO DID NOT YIELD TO ITS DEMANDS.  THE PURPOSE AND
ULTIMATE EFFECT OF EACH OF ITS CONTRACTS WITH THE DISTRIBUTORS WAS TO
RESTRAIN ITS COMPETITORS IN THE THEATRE BUSINESS BY FORCING AN INCREASE
IN THEIR ADMISSION PRICE AND COMPELLING THEM THROUGH THE DOUBLE FEATURE
RESTRICTION TO MAKE THEIR ENTERTAINMENT LESS ATTRACTIVE, AND TO
PRECLUDE THE DISTRIBUTORS FOR THE SPECIFIED TIME FROM RELAXING THE
PRESSURE OF THE RESTRICTIONS UPON THEM. 

THE CASE IS NOT ONE OF THE MERE RESTRICTION OF COMPETITION BETWEEN
THE FIRST SHOWING OF A COPYRIGHTED FILM BY INTERSTATE AND A SUBSEQUENT
SHOWING OF THE SAME FILM BY A LICENSEE OF THE COPYRIGHT OWNER.  THE
CONTRACT, WHEN APPLIED TO THE SITUATION EXISTING IN THE FOUR TEXAS
CITIES, HAD A MORE EXTENSIVE EFFECT.  BOTH INTERSTATE'S FIRST-RUN AND
SECOND-RUN THEATRES IN EACH OF THE CITIES REGULARLY COMPETE WITH THE
INDEPENDENT SECOND-RUN THEATRES IN THOSE CITIES.  SINCE ALL ARE IN
PRACTICALLY CONTINUOUS OPERATION DURING THE SEASON, COMPETITION BETWEEN
THEM EXTENDS TO THE EXHIBITION OF FILMS FURNISHED BY DIFFERENT
DISTRIBUTORS INCLUDING THOSE OF COPYRIGHT OWNERS SHOWN BY INDEPENDENTS,
WHICH COMPETE WITH THOSE OF OTHER COPYRIGHT OWNERS SHOWN AT THE SAME
TIME BY INTERSTATE.  MOREOVER, THE PROVISION IN INTERSTATE'S CONTRACTS
FOR THE RESTRICTION AGAINST DOUBLE BILLING STIPULATED FOR RESTRAINT
UPON COMPETITION WITH INTERSTATE IN THE EXHIBITION OF FILMS IN THE
DOUBLE BILL IN WHICH NEITHER INTERSTATE NOR THE LICENSOR HAD ANY
INTEREST BY WAY OF COPYRIGHT OR OTHERWISE.  THE PATENT EFFECT OF THE
CONTRACT WAS TO IMPOSE AN UNDUE RESTRAINT BOTH AS TO ADMISSION PRICE
AND THE CHARACTER OF THE EXHIBITION UPON COMPETING THEATRE BUSINESSES
HABITUALLY EXHIBITING THE COMPETITIVE PICTURES OF DIFFERENT COPYRIGHT
OWNERS.  THROUGH ACCEPTANCE OF ITS TERMS BY THE PRINCIPAL DISTRIBUTORS
THE CONTRACT BECAME THE READY INSTRUMENT BY WHICH INTERSTATE SUCCEEDED
IN DOMINATING THE BUSINESS OF ITS COMPETITORS IN THE TEXAS CITIES.  THE
FACT THAT THE RESTRICTIONS MAY HAVE BEEN OF A KIND WHICH A DISTRIBUTOR
COULD VOLUNTARILY HAVE IMPOSED, BUT DID NOT, DOES NOT ALTER THE
CHARACTER OF THE CONTRACT AS A CALCULATED RESTRAINT UPON THE
DISTRIBUTION AND USE OF COPYRIGHTED FILMS MOVING IN INTERSTATE
COMMERCE.  EVEN IF IT BE ASSUMED THAT THE BENEFIT TO THE DISTRIBUTOR
FROM THE RESTRICTIONS IS ONE WHICH IT MIGHT HAVE SECURED THROUGH ITS
MONOPOLY CONTROL OF THE COPYRIGHT ALONE, THAT WOULD NOT EXTEND THE
PROTECTION OF THE COPYRIGHT TO THE CONTRACT WITH INTERSTATE AND TO THE
RESULTING RESTRAINT UPON THE COMPETITION OF ITS BUSINESS RIVALS. 

A CONTRACT BETWEEN A COPYRIGHT OWNER AND ONE WHO HAS NO COPYRIGHT,
RESTRAINING THE COMPETITIVE DISTRIBUTION OF THE COPYRIGHTED ARTICLES IN
THE OPEN MARKET IN ORDER TO PROTECT THE LATTER FROM THE COMPETITION,
CAN NO MORE BE VALID THAN A LIKE AGREEMENT BETWEEN TWO COPYRIGHT OWNERS
OR PATENTEES.  STRAUS V. AMERICAN PUBLISHERS' ASSN., SUPRA; PARAMOUNT
FAMOUS LASKY CORP. V. UNITED STATES, SUPRA; SEE STANDARD OIL CO. V.
UNITED STATES, 283 U.S. 163, 174.  IN EITHER CASE IF THE CONTRACT IS
EFFECTIVE, AS IT WAS HERE, COMPETITION IS SUPPRESSED AND THE
POSSIBILITY OF ITS RESUMPTION PRECLUDED BY FORCE OF THE CONTRACT.  AN
AGREEMENT ILLEGAL BECAUSE IT SUPPRESSES COMPETITION IS NOT ANY LESS SO
BECAUSE THE COMPETITIVE ARTICLE IS COPYRIGHTED.  THE FACT THAT THE
RESTRAINT IS MADE EASIER OR MORE EFFECTIVE BY MAKING THE COPYRIGHT
SUBSERVIENT TO THE CONTRACT DOES NOT RELIEVE IT OF ILLEGALITY. 
STANDARD SANITARY MFG. CO. V. UNITED STATES, 226 U.S. 20. 

UNREASONABLENESS OF THE RESTRAINT. 

THE RESTRICTIONS IMPOSED ON THE SUBSEQUENT-RUN EXHIBITORS WERE HARSH
AND ARBITRARY.  AS WE HAVE SEEN, THEY WERE FORCED UPON THE DISTRIBUTORS
AND UPON THEIR CUSTOMERS AS A RESULT OF THE AGREEMENTS ENTERED INTO BY
INTERSTATE WITH THE DISTRIBUTORS.  COMPLIANCE WITH THE RESTRICTIONS
WERE A UNIFORM CONDITION OF EXHIBITION OF THE FILMS BY SUBSEQUENT-RUN
THEATRES.  THERE WERE WIDE DIFFERENCES IN THE LOCATION AND CHARACTER OF
THE SUBSEQUENT-RUN HOUSES IN THE FOUR TEXAS CITIES, WHICH AFFORDED
BASIS FOR THE CORRESPONDING DIFFERENCES IN ADMISSION PRICES CHARGED
BEFORE THE RESTRICTIONS WERE ADOPTED.  DUE TO THE PRACTICE OF THE
DISTRIBUTORS OF ESTABLISHING CLEARANCE PERIODS BETWEEN THE FIRST AND
EACH SUCCESSIVE RUN, LATER RUNS ARE PROGRESSIVELY LESS ATTRACTIVE.  THE
POORER CLASS OF THEATRES, EXHIBITING THE LATER RUNS, SOMETIMES OFFERED
A DOUBLE BILL AS AN OFFSETTING INDUCEMENT FOR PATRONAGE.  DESPITE THESE
DIFFERENCES WHICH NORMALLY AFFECT THE ADMISSION PRICE THAT COULD BE
CHARGED BY SUBSEQUENT-RUN THEATRES, THE 25 CENTS ADMISSION PRICE WAS TO
BE REQUIRED OF ALL ALIKE, FORCING INCREASES IN ADMISSION PRICE RANGING
FROM 25 PER CENT. TO 150 PER CENT. 

THE TRIAL COURT FOUND THAT PRACTICALLY ALL OF THE LATER-RUN
EXHIBITORS WHO BOWED TO THE RESTRICTIONS WOULD NOT HAVE DONE SO BUT FOR
THE COMPULSION OF THEIR NEED OF SHOWING THE RESTRICTED PICTURES, AND
THAT THE RESULT WAS TO INCREASE THE INCOME OF THE DISTRIBUTORS AND
INTERSTATE AND DIMINISH THAT OF THE EXHIBITORS WHO ACCEPTED THE
RESTRICTIONS, BY DEFLECTING ATTENDANCE FROM SUBSEQUENT-RUN THEATRES TO
INTERSTATE'S FIRST-RUN THEATRES.  THERE WAS NO TESTIMONY THAT SUCH LOSS
WAS OFFSET BY THE HIGHER ADMISSION PRICE OF THE SECOND-RUN THEATRES,
AND THERE WAS EVIDENCE THAT SOME OF THE POORER CLASS OF SECOND-RUN
THEATRES SUFFERED LOSS OF INCOME BY YIELDING TO THE RESTRICTIONS.  SOME
WHO DID NOT YIELD WERE COMPELLED TO FOREGO EXHIBITION OF THE
DISTRIBUTORS' FEATURE PICTURES.  THE EFFECT WAS A DRASTIC SUPPRESSION
OF COMPETITION AND AN OPPRESSIVE PRICE MAINTENANCE, OF BENEFIT TO
INTERSTATE AND THE DISTRIBUTORS BUT INJURIOUS ALIKE TO INTERSTATE'S
SUBSEQUENT-RUN COMPETITORS AND TO THE PUBLIC. 

THE BENEFIT, AT SUCH A COST, DOES NOT JUSTIFY THE RESTRAINT.  EASTERN
STATES LUMBER ASSN. V. UNITED STATES, SUPRA, 613; DUPLEX CO. V.
DEERING, 254 U.S. 443, 468; ANDERSON V. SHIPOWNERS ASSOCIATION, 272
U.S. 359, 363; BEDFORD CUT STONE CO. V. STONE CUTTERS' ASSN., 274 U.S.
37, 47.  IT DOES NOT APPEAR THAT THE COMPETITION AT WHICH THEY WERE
AIMED WAS UNFAIR OR ABNORMAL.  CF. APPALACHIAN COALS, INC. V. UNITED
STATES, 288 U.S. 344, 363, 372.  THE CONSEQUENCE OF THE PRICE
RESTRICTION, THOUGH MORE OPPRESSIVE, IS COMPARABLE WITH THE EFFECT OF
RESALE PRICE MAINTENANCE AGREEMENTS, WHICH HAVE BEEN HELD TO BE
UNREASONABLE RESTRAINTS IN VIOLATION OF THE SHERMAN ACT.  DR. MILES
MEDICAL CO. V. PARK & SONS CO., 220 U.S. 373; UNITED STATES V.
SCHRADER'S SON, INC., 252 U.S. 85.  CF. UNITED STATES V. TRENTON
POTTERIES CO., 273 U.S. 392, 397, ET SEQ. 

WE THINK THE CONCLUSION IS UNAVOIDABLE THAT THE CONSPIRACY AND EACH
CONTRACT BETWEEN INTERSTATE AND THE DISTRIBUTORS BY WHICH THOSE
CONSEQUENCES WERE EFFECTED ARE VIOLATIONS OF THE SHERMAN ACT AND THAT
THE DISTRICT COURT RIGHTLY ENJOINED ENFORCEMENT AND RENEWAL OF THESE
AGREEMENTS, AS WELL AS OF THE CONSPIRACY AMONG THE DISTRIBUTORS. 
AFFIRMED.    FN1  A FIRST-RUN THEATRE IS ONE IN WHICH A PICTURE IS
FIRST EXHIBITED IN ANY GIVEN LOCALITY.  A SUBSEQUENT-RUN THEATRE IS ONE
IN WHICH THERE IS A SUBSEQUENT EXHIBITION OF THE SAME PICTURE IN THE
SAME LOCALITY. 

FN2  PAYMENTS OF LICENSE FEES BY INTERSTATE TO DISTRIBUTOR APPELLANTS
IN THE 1934-35 SEASON AGGREGATED $1,077,819.58.  PAYMENTS BY ALL OTHER
EXHIBITORS OPERATING THEATRES IN THE SAME CITIES AGGREGATED
$369,594.72.  TEXAS CONSOLIDATED PAYMENTS FOR THE SAME PERIOD
AGGREGATED $594,863.68.  ALL OTHER EXHIBITORS OPERATING IN THE SAME
CITIES PAID $47,928.22. 

FN3  THE LETTER FOLLOWS:

"INTERSTATE CIRCUIT, INC.,

MAJESTIC THEATRE BUILDING,

DALLAS, TEXAS, JULY 11, 1934. 

MESSRS.:  J. B. DUGGER, HERBERT MACINTYRE, SOL SACHS, C. E. HILGERS,
LEROY BICKEL, J. B. UNDERWOOD, E. S. OLSMYTH, DOAK ROBERTS. 

GENTLEMEN:  ON APRIL 25TH, THE WRITER NOTIFIED YOU THAT IN PURCHASING
PRODUCT FOR THE COMING SEASON 34-35, IT WOULD BE NECESSARY FOR ALL
DISTRIBUTORS TO TAKE INTO CONSIDERATION IN THE SALE OF SUBSEQUENT RUNS
THAT INTERSTATE CIRCUIT, INC., WILL NOT AGREE TO PURCHASE PRODUCE TO BE
EXHIBITED IN ITS 'A' THEATRES AT A PRICE OF 40[ OR MORE FOR NIGHT
ADMISSION, UNLESS DISTRIBUTORS AGREE THAT IN SELLING THEIR PRODUCT TO
SUBSEQUENT RUNS, THAT THIS 'A' PRODUCT WILL NEVER BE EXHIBITED AT ANY
TIME OR IN ANY THEATRE AT A SMALLER ADMISSION PRICE THAN 25[ FOR ADULTS
IN THE EVENING. 

IN ADDITION TO THIS PRICE RESTRICTION, WE ALSO REQUEST THAT ON 'A'
PICTURES WHICH ARE EXHIBITED AT A NIGHT ADMISSION PRICE OF 40[ OR MORE
THEY SHALL NEVER BE EXHIBITED IN CONJUNCTION WITH ANOTHER FEATURE
PICTURE UNDER THE SO-CALLED POLICY OF DOUBLE-FEATURES. 

AT THIS TIME THE WRITER DESIRES TO AGAIN REMIND YOU OF THESE
RESTRICTIONS DUE TO THE FACT THAT THERE MAY BE SOME DELAY IN
CONSUMMATING ALL OUR FEATURE FILM DEALS FOR THE COMING SEASON, AND IT
IS IMPERATIVE THAT IN YOUR NEGOTIATIONS THAT YOU AFFORD US THIS
CLEARANCE. 

IN THE EVENT THAT A DISTRIBUTOR SEES FIT TO SELL HIS PRODUCT TO
SUBSEQUENT RUNS IN VIOLATION OF THIS REQUEST, IT DEFINITELY MEANS THAT
WE CANNOT NEGOTIATE FOR HIS PRODUCT TO BE EXHIBITED IN OUR 'A' THEATRES
AT TOP ADMISSION PRICES. 

WE NATURALLY, IN PURCHASING SUBSEQUENT RUNS FROM THE DISTRIBUTORS IN
CERTAIN OF OUR CITIES, MUST NECESSARILY ELIMINATE DOUBLE FEATURING AND
MAINTAIN THE MAXIMUM 25[ ADMISSION PRICE, WHICH WE ARE WILLING TO DO. 

RIGHT AT THIS TIME THE WRITER WISHES TO CALL YOUR ATTENTION TO THE
RIO GRANDE VALLEY SITUATION.  WE MUST INSIST THAT ALL PICTURES
EXHIBITED IN OUR 'A' THEATRES AT A MAXIMUM NIGHT ADMISSION PRICE OF 35[
MUST ALSO BE RESTRICTED TO SUBSEQUENT RUNS IN THE VALLEY AT 25[.
REGARDLESS OF THE NUMBER OF DAYS WHICH MAY INTERVENE, WE FEEL THAT IN
EXPLOITING AND SELLING THE DISTRIBUTORS' PRODUCT, THAT SUBSEQUENT RUNS
SHOULD BE RESTRICTED TO AT LEAST A 25[ ADMISSION SCALE. 

THE WRITER WILL APPRECIATE YOUR ACKNOWLEDGING YOUR COMPLETE
UNDERSTANDING OF THIS LETTER. 

SINCERELY,       (SIGNED)  R. J. O'DONNELL." 

FN4  A CLASS 'A' PICTURE IS A "FEATURE PICTURE" HAVING FIVE REELS OR
MORE OF FILM EACH APPROXIMATELY 1,000 FEET IN LENGTH, SHOWN IN THEATRES
OF THE SPECIFIED TEXAS CITIES CHARGING 40 CENTS OR MORE FOR ADULT
ADMISSION AT NIGHT.  APPROXIMATELY FIFTY PER CENT. OF THE PICTURES
RELEASED BY THE DISTRIBUTOR DEFENDANTS IN TEXAS CITIES IN 1934-1935
WERE CLASS 'A' PICTURES. 

FN5  THE METRO-GOLDWYN-MAYER DISTRIBUTING CORPORATION AGREEMENT WITH
INTERSTATE DID NOT INCLUDE HOUSTON, WHERE IT OPERATED THROUGH A
SUBSIDIARY A FIRST-RUN THEATRE, AND WHERE IT DID NOT UNTIL THE 1936
1937 SEASON LICENSE ANY SUBSEQUENT-RUN PICTURES.  IT AGREED WITH
INTERSTATE TO IMPOSE THE RESTRICTIONS IN HOUSTON FOR THE 1936-1937
SEASON. 

FN6  THE INJUNCTION AGAINST THE DOUBLE FEATURE RESTRICTION EXCEPTED
FROM ITS OPERATION TWO DISTRIBUTORS, AND THE AGENT OF ONE OF THEM,
WHICH HAD PREVIOUSLY MADE A PRACTICE OF INCLUDING SUCH A RESTRICTION IN
THEIR LICENSE AGREEMENTS. 

FN7  SEE FOOTNOTE 5. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 

MR. JUSTICE ROBERTS, DISSENTING. 

I THINK THE DECREE SHOULD BE REVERSED.  THE BILL CHARGES THAT THE TWO
EXHIBITOR DEFENDANTS WHICH WERE UNDER THE SAME MANAGEMENT, KNOWING THAT
SUBSEQUENT RUN HOUSES IN DALLAS, HOUSTON, SAN ANTONIO, FORT WORTH,
AUSTIN, AND GALVESTON, THE LARGEST CITIES IN TEXAS, AND IN WACO,
WICHITA FALLS, TYLER, AMARILLO, TEXAS, AND ALBUQUERQUE, NEW MEXICO,
COULD NOT OPERATE WITHOUT THE SHOWING OF FEATURE FILMS, IN ORDER TO
STRENGTHEN THESE TWO DEFENDANTS' MONOPOLY IN FIRST RUN EXHIBITION OF
SUCH FEATURE FILMS, AND TO MONOPOLIZE THE BUSINESS OF EXHIBITING
FEATURE FILMS IN SECOND OR SUBSEQUENT RUN HOUSES OPERATED BY THEM IN
THOSE CITIES, CONSPIRED TO NOTIFY THE DISTRIBUTOR DEFENDANTS THAT,
DURING THE 1934-1935 SEASON, AND SUBSEQUENT SEASONS, THE LATTER MUST
ADVISE SECOND AND SUBSEQUENT RUN EXHIBITORS THAT SUCH FEATURE FILMS
COULD NOT BE OPERATED IN SECOND OR SUBSEQUENT RUN HOUSES FOR LESS THAN
TWENTY-FIVE CENTS ADULT LOWER FLOOR ADMISSION OR AS PART OF A DOUBLE
FEATURE PROGRAM AND THAT, UNLESS THE DISTRIBUTOR DEFENDANTS WOULD DO
SO, THE EXHIBITORS WOULD NOT MAINTAIN A NIGHT ADULT ADMISSION PRICE OF
FORTY CENTS OR MORE FOR THE FIRST RUN EXHIBITIONS OF FEATURE FILMS
LICENSED BY THE DISTRIBUTOR DEFENDANTS TO THEM.  THE BILL CHARGED THAT,
UPON RECEIPT OF ADVICES TO THIS EFFECT FROM THE EXHIBITOR DEFENDANTS,
THE DISTRIBUTOR DEFENDANTS JOINED IN THE UNLAWFUL COMBINATION AND
CONSPIRED WITH THE EXHIBITOR DEFENDANTS TO PLACE SUCH RESTRICTIONS IN
LICENSES TO SECOND OR SUBSEQUENT RUN EXHIBITORS. 

THE PARTIES ENTERED INTO A STIPULATION OF FACTS, IN LIEU OF EVIDENCE,
BINDING UPON THEM FOR THE PURPOSES OF SUIT, AND FURTHER AGREED THAT ANY
PARTY MIGHT INTRODUCE ADDITIONAL RELEVANT AND MATERIAL EVIDENCE BEARING
UPON THE ISSUES "BUT NOT INCONSISTENT WITH ANY FACT CONTAINED IN" THE
STIPULATION.  PLAINTIFF AND DEFENDANTS INTRODUCED ADDITIONAL EVIDENCE. 
THE TESTIMONY OF SECOND OR SUBSEQUENT EXHIBITORS CALLED AS WITNESSES BY
PLAINTIFF AND DEFENDANTS MAY BE SAID TO HAVE BEEN, IN SOME RESPECTS,
CONFLICTING.  THE EVIDENCE OFFERED BY THE PLAINTIFF AND THE DEFENDANTS
WITH RESPECT TO THE NEGOTIATIONS BETWEEN THE EXHIBITOR DEFENDANTS AND
THE DISTRIBUTOR DEFENDANTS, AND THE CONDUCT OF THE LATTER, WAS
UNCONTRADICTED UPON ALL POINTS MATERIAL TO A RESOLUTION OF THE FACT
ISSUES IN THE CAUSE. 

THE DISTRICT COURT MADE TEN FINDINGS (NUMBERED FROM 12 TO 21,
INCLUSIVE) OF SUBSIDIARY OR EVIDENTIARY FACTS AND BASED UPON THESE
SPECIFIC FINDINGS ONE CONCLUSION OF ULTIMATE FACT,  - THAT THE
DISTRIBUTOR DEFENDANTS CONSPIRED AMONGST THEMSELVES TO TAKE UNIFORM
ACTION UPON THE PROPOSALS OF INTERSTATE AND CONSPIRED WITH EACH OTHER
AND WITH INTERSTATE TO IMPOSE THE RESTRICTIONS REQUESTED BY INTERSTATE
UPON ALL SUBSEQUENT RUN EXHIBITORS IN DALLAS, FORT WORTH, HOUSTON, AND
SAN ANTONIO. 

THE APPELLANTS CONTEND, AND I THINK THEIR CONTENTION IS SOUND, THAT
THE SUBSIDIARY FINDINGS ARE INSUFFICIENT TO SUPPORT THE FACT CONCLUSION
AND THAT THESE SUBSIDIARY FINDINGS ARE, IN A NUMBER OF VITAL INSTANCES,
CONTRARY TO, OR UNSUPPORTED BY, THE AGREED STATEMENT OF FACTS AND, IN
OTHER INSTANCES, ARE IN THE TEETH OF UNCONTRADICTED AND UNIMPEACHED
TESTIMONY. 

SINCE THIS IS A DIRECT APPEAL FROM THE DISTRICT COURT IN AN EQUITY
SUIT, AND THE FINDINGS ARE CHALLENGED, THIS COURT IS BOUND TO REVIEW
THEM AND TO DETERMINE WHETHER THEY HAVE A PROPER BASIS IN THE
EVIDENCE.  I THINK SUCH A REVIEW DEMONSTRATES THE LACK OF SUPPORT OF
THE CRITICAL BASIC FINDINGS.  NO GOOD PURPOSE WOULD BE SERVED BY A
DETAILED ANALYSIS OF WHAT I CONSIDER ERRONEOUS AND UNSUPPORTED
FINDINGS.  BUT I AM OF OPINION THAT THE FINDINGS OUGHT NOT TO STAND AND
THAT THE CONCLUSION THAT THERE WAS A CONSPIRACY, EITHER BETWEEN THE
DISTRIBUTOR DEFENDANTS OR BETWEEN THEM AND THE INTERSTATE CORPORATION,
IS UNJUSTIFIED.  THE OPINION OF THIS COURT ACCEPTS AND CLOSELY FOLLOWS
THESE FINDINGS OF FACT BUT, WHILE APPROVING THE CONCLUSION OF THE
DISTRICT COURT, FINDS IT UNNECESSARY TO GIVE DETAILED CONSIDERATION TO
THE APPELLANTS' CHALLENGE OF THE ACCURACY AND SUFFICIENCY OF THE
SUBSIDIARY FINDINGS, FOR THE REASON THAT IT HOLDS, AS MATTER OF LAW, ON
UNCONTRADICTED FACTS, THAT THERE WERE EIGHT SEPARATE CONSPIRACIES
UNREASONABLY TO RESTRAIN TRADE IN INTERSTATE COMMERCE IN VIRTUE OF THE
AGREEMENT OF EACH OF THE DISTRIBUTOR DEFENDANTS WITH INTERSTATE TO
IMPOSE RESTRICTIONS ON SUBSEQUENT RUN EXHIBITORS IN CERTAIN CITIES. 

SEPARATELY CONSIDERED, I THINK THESE AGREEMENTS ARE NOT CONSPIRACIES
CONTEMPLATED BY THE SHERMAN ACT AND THE HOLDING THAT THEY ARE GOES FAR
BEYOND ANYTHING THIS COURT HAS EVER DECIDED.  THE DISTRIBUTOR
DEFENDANTS ARE OWNERS OF COPYRIGHTS ON MOVING PICTURE FILMS.  THE
COPYRIGHT LAW GIVES THEM THE EXCLUSIVE PRIVILEGE OF LICENSING
PERFORMANCES OF THE PHOTOPLAYS RECORDED.  ON THE OTHER HAND, THERE ARE
COMPETING CONCERNS WHOSE COPYRIGHTED FEATURE FILMS ARE LICENSED FOR THE
PURPOSE OF PRODUCTION.  IN ADDITION, THERE ARE COPYRIGHTED FILMS OF
LOWER CLASSES WELL KNOWN TO THE TRADE.  THESE LOWER CLASS FILMS ARE
USUALLY LICENSED TO HOUSES THAT CHARGE LOWER PRICES FOR FIRST RUN
EXHIBITION THAN THOSE CHARGED BY THEATRES SHOWING FEATURE FILMS, AND
BOTH THE FEATURE FILMS, SECOND AND SUBSEQUENT RUN, AND OTHER FILMS OF
LESS ATTRACTION AND LESS EXPENSIVELY PRODUCED, ARE EXHIBITED BY SO
CALLED SECOND RUN HOUSES.  THE LATTER PAY A MUCH REDUCED RATE TO OBTAIN
THE FEATURE FILMS FOR EXHIBITION IN THE SAME CITY AFTER THEIR ORIGINAL
SHOWING AS FEATURE FILMS IN FIRST RUN HOUSES.  MANY OF THE SUBSEQUENT
RUN HOUSES CHARGE LOW ADMISSION PRICES, AND SOMETIMES PUT ON DOUBLE
BILLS. 

INTERSTATE IS THE LARGEST LICENSEE OF FIRST RUN FEATURE FILMS IN
TEXAS.  IT HAS MANY MORE FIRST RUN HOUSES THAN ANY OTHER TEXAS
EXHIBITOR.  ITS FIRST RUN HOUSES ARE IN THE LARGEST CITIES WHERE THE
HIGHEST ADMISSION PRICES CAN BE OBTAINED.  THE DISTRIBUTORS ARE, OF
COURSE, INTERESTED IN THE CONSERVATION AND PROTECTION OF THE
NECESSARILY HIGH LICENSE FEES WHICH THEY MUST OBTAIN FOR FIRST RUNS OF
FEATURE PICTURES.  THESE ARE FAR HIGHER THAN THOSE RECEIVED FOR THE
SECOND SHOWINGS OF THE SAME PICTURES IN THE SAME CITY.  THEY NATURALLY
HAVE TO PROTECT THEMSELVES AND THEIR LICENSEES FROM THE DESTRUCTION OF
THE GOOD WILL AND DRAWING POWER OF THESE FEATURE FILMS IN THEIR FIRST
RUNS.  IN AN EFFORT TO ACCOMPLISH THIS, BY REQUIRING MINIMUM ADMISSION
CHARGES AND PROHIBITING DOUBLE BILLING IN SUBSEQUENT RUNS OF FEATURE
PICTURES, THEY MAY, OF COURSE, NARROW THE OPPORTUNITY OF SECOND RUN
HOUSES TO OBTAIN FEATURE PICTURES. 

I AGREE THAT WHILE THE COPYRIGHT ACT GIVES A DISTRIBUTOR A SO-CALLED
MONOPOLY, THAT MONOPOLY CANNOT BE MADE THE COVER FOR A CONSPIRACY TO
RESTRAIN TRADE OR COMMERCE.  FN1  BUT I THINK IT OBSCURES THE ISSUE TO
USE THE PHRASE "MONOPOLY."  WHAT THE COPYRIGHT GIVES IS MUCH THE SAME
AS WHAT IS CONFERRED BY THE PATENT LAW.  FN2  THE EXHIBITION OF A
PHOTOPLAY, WERE IT NOT FOR THE COPYRIGHT LAW, WOULD AMOUNT TO A PUBLIC
DISCLOSURE AND THE USE OF THE MATERIAL WOULD THEREAFTER BE OPEN TO THE
PUBLIC.  ALL THE COPYRIGHT ACT DOES IS TO CREATE A FORM OF PROPERTY IN
THE LITERARY OR ARTISTIC PRODUCTION OF THE AUTHOR OR ARTIST.  THE ACT
ATTACHES TO THE PRODUCT OF HIS BRAIN CERTAIN ATTRIBUTES OF PROPERTY. 
ONE OF THESE IS THE RIGHT OF EXCLUSIVE USE SIMILAR TO THAT ATTACHING TO
PHYSICAL PROPERTY; ANOTHER IS THE RIGHT TO SELL THE PRODUCTION WITH
CONSEQUENT EXCLUSIVE ENJOYMENT IN THE VENDEE; ANOTHER IS THE RIGHT TO
LICENSE OTHERS TO USE THE PRODUCT AS ONE MIGHT LEASE OR BAIL REAL OR
PERSONAL PROPERTY.  THE MONOPOLY, SO CALLED, AMOUNTS TO NO MORE THAN
THE ATTACHMENT TO THE WORK OF AN AUTHOR OR COMPOSER OR PRODUCER OF
MOTION PICTURES OF THE SAME RIGHTS AS INHERE IN OTHER PROPERTY UNDER
THE COMMON LAW.  THEREFORE, THE STANDING OF THE DISTRIBUTOR DEFENDANTS
TOWARD THEIR CUSTOMERS, AS RESPECTS THE PRODUCTIONS PROPOSED TO BE
LICENSED, DIFFERS IN NO WAY FROM THAT OF THE OWNER OF ANY OTHER
PROPERTY TOWARD THOSE TO WHOM HE LEASES OR LICENSES ITS USE OR SALE. 

THE DECISION OF THE COURT NECESSARILY MEANS THAT THE OWNER OF A
PRODUCT MAY NOT AGREE WITH AN IMPORTANT CUSTOMER THAT THE FORMER WILL
NOT SELL THE PRODUCT AT A CUT RATE TO THE LATTER'S COMPETITORS IN THE
SAME CITY IN WHICH HE CONDUCTS HIS BUSINESS.  THE DECISION LEADS TO THE
NECESSARY CONCLUSION THAT A MANUFACTURER WHOSE SKILL RESULTS IN THE
PRODUCTION OF APPARATUS OF SUPERIOR QUALITY MAY NOT, IN CONSIDERATION
OF A PRICE TO BE PAID HIM FOR THE BAILMENT OF THAT APPARATUS TO CERTAIN
USERS IN A CITY, CONTRACT, AS AN INDUCEMENT TO THE USERS, THAT HE WILL
NOT BAIL THE SAME APPARATUS AT LOWER AND DESTRUCTIVE PRICES TO HIS
BAILEES' COMPETITORS IN THE SAME CITY.  I THINK IT HAS NEVER BEEN
SUGGESTED THAT AN AGREEMENT OF THE SORT MENTIONED, RESTRICTED IN TIME
AND PLACE, AMOUNTS TO A CONSPIRACY IN UNREASONABLE RESTRAINT OF TRADE
OR COMMERCE.  THE RIGHT TO MAKE SUCH AGREEMENTS IS ESSENTIAL TO THE
REALIZATION OF THE FULL VALUE OF THE PROPERTY.  IT IS CONCEDED THAT THE
DISTRIBUTOR DEFENDANTS MIGHT GRANT EXCLUSIVE LICENSES TO INTERSTATE,
AND THAT AN EXCLUSIVE LICENSE TO INTERSTATE WOULD NOT CONSTITUTE A
CONSPIRACY UNDER THE SHERMAN ACT, OR CONFER ANY CAUSE OF ACTION ON
OTHERS WHO DESIRED LICENSES IN THE SAME CITY; AND THIS REMAINS TRUE
HOWEVER MUCH SUCH ACTION BY THE LICENSOR MIGHT INJURE THE BUSINESS OF
OTHERS SEEKING LICENSES. 

I AM OF OPINION THAT THE RESTRICTIONS IN THE LICENSES OF SECOND RUN
EXHIBITORS WERE NOT UNREASONABLE RESTRAINTS OF COMMERCE UNDER THE
SHERMAN ACT.  THERE IS NO CONTENTION THAT THE ACTION OF THE DISTRIBUTOR
DEFENDANTS DISCOURAGED COMPETITION BETWEEN THEM EITHER FOR THE BUSINESS
OF INTERSTATE OR FOR THAT OF SUBSEQUENT RUN LICENSEES.  THE
RESTRICTIONS UPON THE LATTER WERE NOT INTENDED TO INCREASE LICENSE FEES
PAID BY THEM OR THOSE PAID BY INTERSTATE; THEY WERE IMPOSED TO PREVENT
DESTRUCTION OF THE GOOD WILL WHICH MADE POSSIBLE THE CONTINUED
EXHIBITION OF FIRST RUN FEATURE PICTURES AND TO AVOID DECREASE OF THE
REVENUE FROM THOSE PICTURES THEN AND THERETOFORE ENJOYED UNDER LICENSES
TO INTERSTATE AND OTHER FIRST RUN FEATURE EXHIBITORS.  THE
REASONABLENESS OF THE RESTRICTIONS MUST BE JUDGED BY THE SITUATION OF
THE INDUSTRY AND THE PROPRIETY OF ITS PROTECTION FROM PRACTICES WHICH
WOULD SERIOUSLY INJURE IT.  FN3  THE QUESTION ALWAYS IS WHETHER AN
AGREEMENT UNDULY RESTRAINS COMPETITION AND, IN APPLYING THIS TEST,
CONSIDERATION MUST BE GIVEN BOTH TO THE INTENT AND EFFECT OF THE
AGREEMENT IN THE LIGHT OF REALITIES. 

IT IS SETTLED THAT THE PROPRIETOR OF A COPYRIGHT MAY GRANT AN
EXCLUSIVE LICENSE; THAT IS, MAY COVENANT WITH HIS LICENSEE THAT HE WILL
NOT LICENSE ANYONE ELSE, AS THE OWNER OF A PATENT MAY GRANT A SIMILAR
EXCLUSIVE LICENSE TO MAKE OR SELL THE PATENTED ARTICLE.  FN4  IT IS
SETTLED THAT THE DISTRIBUTOR DEFENDANTS COULD LAWFULLY STIPULATE WITH
THEIR LICENSEES, WHETHER FIRST RUN OR SUBSEQUENT RUN, AS TO THE
ADMISSION PRICE TO BE PAID BY PATRONS AND THAT, SO TO DO, WOULD NOT BE
A VIOLATION OF THE SHERMAN ACT.  FN5  BUT IT IS SAID THAT IF, IN ORDER
TO PROTECT ITS EARNINGS FROM FIRST RUN LICENSES BY ENABLING ITS
LICENSEES TO PAY THE DEMANDED CONSIDERATION, THE DISTRIBUTOR AGREES TO
RESTRICT IN ANYWISE THE EXHIBITION OF THE SAME FEATURE BY A SUBSEQUENT
RUN EXHIBITOR HE HAS VIOLATED THE ANTI-TRUST LAW.  IN THE NATURE OF
THINGS THIS CANNOT BE TRUE.  THE RECORD DISCLOSES THAT THE DISTRIBUTORS
HAVE ALWAYS PROVIDED A SO-CALLED "CLEARANCE" BETWEEN THE FIRST RUN AND
SUBSEQUENT RUNS OF FEATURE PICTURES.  BY THIS IS MEANT THAT THE
DISTRIBUTORS REFUSE TO LICENSE A SUBSEQUENT RUN THEATRE TO SHOW SUCH A
FEATURE UNTIL THE EXPIRATION OF A GIVEN NUMBER OF DAYS OR MONTHS AFTER
THE PICTURE HAS BEEN SHOWN IN A FIRST RUN HOUSE.  THIS IS A PERFECTLY
NATURAL PROCEDURE AND ONE OBVIOUSLY REQUIRED TO PROTECT THE VALUE OF
THE FIRST RUN LICENSE.  UNDER THE DECISION HERE, HOWEVER, IF A
DISTRIBUTOR SHOULD AGREE WITH A FIRST RUN HOUSE THAT IF IT WILL
CONTRACT FOR A GIVEN FEATURE PICTURE AT A GIVEN PRICE THE DISTRIBUTOR
WILL IMPOSE A CLEARANCE ON SECOND RUN HOUSES THIS WOULD BE A CONSPIRACY
IN RESTRAINT OF TRADE.  OTHER RESTRICTIONS TENDING TO PRESERVE THE
VALUE OF THE FIRST EXHIBITION OF A FEATURE PICTURE SUCH AS THOSE
CHALLENGED IN THIS CASE ARE JUST AS NECESSARY AND, I SUPPOSE, IN THE
ABSENCE OF AGREEMENT WOULD BE HELD JUST AS LAWFUL AS THE RESTRICTION
KNOWN AS A CLEARANCE. 

THE OPINION OF THE COURT RECOGNIZES THAT A DISTRIBUTOR MAY LAWFULLY
AGREE THAT ITS EXHIBITOR LICENSEE SHALL HAVE THE EXCLUSIVE RIGHT TO
EXHIBIT A COPYRIGHTED PLAY BUT CONDEMNS THE AGREEMENTS HERE IN
CONTROVERSY ALTHOUGH A MUCH LESS DRASTIC RESTRAINT RESPECTING LICENSES
TO SUBSEQUENT RUN EXHIBITORS RESULTS FROM THE PROVISION FOR LICENSES
WITH A RESTRICTION AS TO PRICE AND AS TO DOUBLE BILLING. 

ONCE THE PROPERTY RIGHTS CONFERRED BY THE COPYRIGHT LAW ARE
RECOGNIZED IT MUST FOLLOW THAT THE PRINCIPLES GOVERNING THE RIGHT TO
USE, SELL, OR TURN TO ACCOUNT OTHER FORMS OF PROPERTY ARE EQUALLY
APPLICABLE HERE.  WE HAVE OFTEN HELD THAT A CONTRACT CONTAINING A
COVENANT IN RESTRAINT OF TRADE IS VALID IF THE RESTRAINT IS REASONABLY
NECESSARY FOR THE PROTECTION OF THE RIGHT GRANTED BY THE OWNER OF THE
PROPERTY.  EXAMPLES OF SUCH LAWFUL CONTRACTS ARE THOSE BY WHICH THE
VENDOR OF A BUSINESS SOLD AS A GOING CONCERN AGREES THAT FOR THE
PROTECTION OF ITS VALUE HE WILL FOR A PERIOD OF YEARS REFRAIN FROM
ENGAGING IN THE SAME BUSINESS IN A PRESCRIBED TERRITORY; FN6  AND THOSE
BY THE VENDOR WITH THE VENDEE OF AN ARTICLE TO BE USED IN BUSINESS OR
TRADE THAT IT SHALL NOT BE USED SO AS TO INTERFERE WITH THE VENDOR'S
BUSINESS; FN7  WHICH ARE HELD NOT TO OFFEND THE SHERMAN ACT IF THE
PROHIBITION HAS A REASONABLE RELATION TO THE VALUE OF THE BUSINESS OF
THE VENDOR. 

THE GOVERNMENT STRESSES THE FACT THAT EACH OF THE DISTRIBUTORS MUST
HAVE ACTED WITH KNOWLEDGE THAT SOME OR ALL OF THE OTHERS WOULD GRANT OR
HAD GRANTED INTERSTATE'S DEMAND.  BUT SUCH KNOWLEDGE WAS MERELY NOTICE
TO EACH OF THEM THAT IF IT WAS SUCCESSFULLY TO COMPETE FOR THE FIRST
RUN BUSINESS IN IMPORTANT TEXAS CITIES IT MUST MEET THE TERMS OF
COMPETING DISTRIBUTORS OR LOSE THE BUSINESS OF INTERSTATE.  IT COULD
COMPETE SUCCESSFULLY ONLY BY GRANTING EXCLUSIVE LICENSES TO INTERSTATE
AND INJURING SUBSEQUENT RUN HOUSES BY REFUSING THEM LICENSES,  - A
COURSE CLEARLY LAWFUL,  - OR BY DOING THE LESS DRASTIC THING OF
AGREEING TO PROTECT THE GOOD WILL OF ITS PICTURES BY PUTTING NECESSARY
AND NOT SEVERELY BURDENSOME RESTRICTIONS UPON SUBSEQUENT RUN
EXHIBITORS, WHICH I THINK EQUALLY LAWFUL. 

FN1  STRAUS V. AMERICAN PUBLISHERS' ASSN., 231 U.S. 222; PARAMOUNT
FAMOUS CORP. V. UNITED STATES, 282 U.S. 30. 

FN2  SEE UNITED STATES V. DUBILIER CONDENSER CORP., 289 U.S. 178,
186. 

FN3  APPALACHIAN COALS, INC. V. UNITED STATES, 288 U.S. 344, 358,
359, 360, 362.  COMPARE CHICAGO BOARD OF TRADE V. UNITED STATES, 246
U.S. 231, 238. 

FN4  MANNERS V. MOROSCO, 252 U.S. 317; BEMENT V. NATIONAL HARROW CO.,
186 U.S. 70. 

FN5  UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, 488-490;
STANDARD OIL CO. V. UNITED STATES, 283 U.S. 163, 179. 

FN6  CINCINNATI PACKET CO. V. BAY, 200 U.S. 179; OREGON STEAM
NAVIGATION CO. V. WINSOR, 20 WALL.  64, 67. 

FN7  FOWLE V. PARK, 131 U.S. 88; BOARD OF TRADE V. CHRISTIE GRAIN &
STOCK CO., 198 U.S. 236, 250, 252; MOORE V. NEW YORK COTTON EXCHANGE,
270 U.S. 593; UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476;
UNITED STATES V. ADDYSTON STEEL CO., 85 F. 271. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER JOIN IN THIS OPINION. 
..END :






















TEXARKANA V. ARKANSAS GAS CO., 306 U.S. 188 


NO. 294.  ARGUED JANUARY 4, 5, 1939.  - DECIDED FEBRUARY 6, 1939.  - 97
F.2D 5, REVERSED. 


1.  A FRANCHISE GRANTED TO A UTILITY COMPANY BY THE CITY OF TEXARKANA,
TEXAS, CONTAINED A SECTION (SEC. IX) PROVIDING THAT IF THE COMPANY
SHOULD "BE FINALLY COMPELLED TO, OR SHOULD VOLUNTARILY, PLACE IN ANY
RATES" FOR THE ADJACENT CITY OF TEXARKANA, ARKANSAS, LESS THAN THOSE
FIXED BY THE FRANCHISE, THEN SUCH LOWER RATES SHOULD APPLY ALSO IN THE
TEXAS CITY AND THE COMPANY "SHALL NOT BE AUTHORIZED OR PERMITTED TO
CHARGE AND COLLECT ANY HIGHER RATE."  HELD: 

(1)  THE SECTION WAS NOT INVALID AS A DELEGATION OR ABDICATION OF THE
POWER OF THE TEXAS CITY UNDER ITS CHARTER TO REGULATE THE BUSINESS AND
FIX THE RATES OF PUBLIC UTILITIES.  P. 196. 

(2)  BY THE LAW OF TEXAS, THE SECTION WAS BINDING ON THE UTILITY
COMPANY, ALTHOUGH, BECAUSE OF THE RESERVED POWER TO RAISE OR LOWER THE
RATES, NOT BINDING ON THE MUNICIPALITY.  P. 197. 

GRANT OF THE FRANCHISE IS CONSIDERATION FOR THE UNDERTAKING OF THE
UTILITY TO MAINTAIN THE PRESCRIBED RATES UNTIL THEY ARE ALTERED BY THE
EXERCISE OF THE RESERVED POWER OF THE MUNICIPALITY TO REGULATE THE
RATES.  P. 200. 

(3)  EARLIER DECISIONS OF THIS COURT TO THE EFFECT THAT UNDER THE LAW
OF TEXAS A MUNICIPALITY COULD NOT VALIDLY MAKE A RATE CONTRACT WITH A
PUBLIC UTILITY BECAUSE INCONSISTENT WITH ITS RESERVED POWER TO REGULATE
RATES ARE INAPPLICABLE BECAUSE (A) THE STATE SUPREME COURT IN A
SUBSEQUENT DECISION HAS INDICATED THAT THE CONTRACT AND REGULATORY
POWERS MAY BE EXERCISED CONCURRENTLY, AND (B) THE CHARTER OF THE
MUNICIPALITY HERE INVOLVED SPECIFICALLY EMPOWERS IT TO ENTER INTO
FRANCHISE AGREEMENTS WITH RATE REGULATION RESERVED.  P. 201. 

(4)  WHEN THE UTILITY VOLUNTARILY PUT INTO EFFECT IN THE ARKANSAS
CITY RATES LOWER THAN THOSE GRANTED BY THE FRANCHISE, THEN THE
CONSUMERS IN THE TEXAS CITY WERE IMMEDIATELY ENTITLED TO THE LOWER
RATE.  P. 202. 

(5) WHERE A RATE ORDER APPLICABLE IN THE ARKANSAS CITY WAS CHALLENGED
BY THE UTILITY, THE LATTER IS NOT "FINALLY COMPELLED" TO "PLACE IN" THE
RATE UNTIL ENTRY OF THE FINAL ORDER OF A COURT MAKING THE RATE
EFFECTIVE; BUT WHEN SUCH FINAL ORDER IS ENTERED, THE TEXAS CONSUMERS
ARE ENTITLED TO HAVE THE LOWERED RATE APPLIED TO THEIR CONSUMPTION FOR
THE SAME PERIOD OF TIME THAT IT IS ENJOYED BY THE ARKANSAS CONSUMERS. 
P. 202. 

(6)  A SUPPLEMENTAL PETITION SEEKING TO GIVE THE TEXAS CONSUMERS THE
BENEFIT OF A LOWER RATE WHICH HAD BEEN DECREED FOR THE ARKANSAS CITY,
BUT FROM WHICH DECREE AN APPEAL BY THE COMPANY WAS PENDING, WAS
PREMATURE.  P. 203. 

(7)  UPON REMAND OF THIS CASE TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS, LEAVE SHOULD BE GRANTED - THE ARKANSAS RATE CASE HAVING
FINALLY BEEN DETERMINED - TO FILE A SUPPLEMENTAL PETITION TO BRING TO
DATE THE CONTROVERSY OVER THE REFUND OF CHARGES BY THE COMPANY.  P.
203. 

(8)  SECTION IX IS NOT INVALID AS VAGUE, INDEFINITE AND OBSCURE.  P.
204. 

(9)  SECTION VIII-A OF THE FRANCHISE, RELATIVE TO NOTICE OF
APPLICATION FOR INCREASE OR DECREASE IN RATES, IS BY ITS TERMS
INAPPLICABLE TO THE POWER OF THE CITY TO INCREASE RATES.  P. 197. 

2.  QUESTIONS OF THE VALIDITY AND CONSTRUCTION OF A FRANCHISE GRANTED
UNDER STATE LAW TO A UTILITY COMPANY ARE TO BE DETERMINED BY THE
FEDERAL COURT IN ACCORDANCE WITH THE LAW OF THE STATE.  P. 198. 

3.  THIS COURT RELIES UPON THE TRIAL COURT FOR AID IN THE EXAMINATION
AND INTERPRETATION OF THE LOCAL LAW.  P. 198. 

4.  A RESPONDENT IN CERTIORARI HERE MAY URGE AFFIRMANCE OF THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS ON A GROUND ASSIGNED BY HIM ON
HIS APPEAL TO THAT COURT AS REQUIRING JUDGMENT IN HIS FAVOR BUT WHICH
IT DID NOT PASS UPON.  P. 198. 

5.  WHERE THERE IS A GOOD CAUSE OF ACTION STATED IN THE ORIGINAL
BILL, A SUPPLEMENTAL BILL SETTING UP FACTS SUBSEQUENTLY OCCURRING WHICH
JUSTIFY OTHER OR FURTHER RELIEF IS PROPER.  P. 203. 

6.  THAT THE RATES STIPULATED IN A BINDING CONTRACT BETWEEN A UTILITY
AND A MUNICIPALITY ARE INADEQUATE IS NOT A DEFENSE TO THEIR
ENFORCEMENT.  P. 204. 

CITY OF TEXARKANA V. ARKANSAS LOUISIANA GAS CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 305 U.S. 584, TO REVIEW A DECREE WHICH, UPON APPEAL FROM
THE DISTRICT COURT IN A SUIT BROUGHT BY THE CITY AGAINST THE UTILITY
COMPANY REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS THE BILL. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

A WRIT OF CERTIORARI BRINGS TO THIS COURT FOR REVIEW A JUDGMENT  FN1
OF THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT DENYING THE
VALIDITY OR APPLICABILITY OF THE FOLLOWING SECTION IN A FRANCHISE
GRANTED TO RESPONDENT BY PETITIONER IN 1930.  SECTION IX OF THAT
FRANCHISE READS AS FOLLOWS: 

"IF GRANTEE SHALL BE FINALLY COMPELLED TO, OR SHOULD VOLUNTARILY,
PLACE IN ANY RATES IN THE CITY OF TEXARKANA, ARKANSAS, LESS THAN THE
RATES GRANTED BY THIS ORDINANCE THEN AND THEREUPON THE LESSENED RATE
SHALL APPLY IN THE CITY OF TEXARKANA, TEXAS, AND GRANTEE SHALL NOT BE
AUTHORIZED OR PERMITTED TO CHARGE AND COLLECT ANY HIGHER RATE." 

TEXARKANA, TEXAS, AND TEXARKANA, ARKANSAS, ARE ADJACENT CITIES
DIVIDED BY THE ARKANSAS-TEXAS STATE LINE.  RESPONDENT SERVES AS A
PUBLIC UTILITY FOR THE DISTRIBUTION OF GAS IN BOTH CITIES.  BECAUSE OF
THE SECTION JUST QUOTED, THE TEXAS CITY UNDERTOOK JUDICIAL ACTION TO
SECURE GAS FOR ITSELF AND ITS CITIZENS AT RATES LOWER THAN THOSE STATED
IN OTHER SECTIONS OF THE FRANCHISE.  WE GRANTED CERTIORARI  FN2  ON
ACCOUNT OF ASSERTED CONFLICT WITH THE DECISIONS OF THE STATE COURTS ON
AN IMPORTANT QUESTION OF LOCAL LAW. 

THE CHARTER OF THE TEXAS CITY GIVES AUTHORITY TO GRANT FRANCHISES FOR
THE USE OF ITS PUBLIC WAYS UPON TERMS TO BE EMBODIED IN ORDINANCES,
WHICH MUST EXPRESSLY PROVIDE THAT THE CITY SHALL RETAIN THE REGULATION
OF THE BUSINESS OF THE UTILITY, THE FIXING OF ITS RATES AND THE RIGHT
TO INSPECT ITS OPERATIONS.  SHOULD THESE RESERVATIONS BE OMITTED, THEY
ARE NEVERTHELESS TO BE CONSIDERED PART AND PARCEL OF THE FRANCHISE. 
FN3  THE CHARTER ALSO PROVIDES THAT THE CITY SHALL HAVE THE POWER TO
REGULATE RATES CHARGED BY GAS COMPANIES.  FN4  THE GAS COMPANY AND ITS
PREDECESSORS HAD LONG HELD A FRANCHISE FOR FURNISHING GAS TO THE TEXAS
CITY.  THE EARLIEST ORDINANCES OF THE CITY WERE AMENDED IN 1923, BY
WHICH AMENDMENT CERTAIN RATES FOR GAS WERE FIXED.  ARTICLE E IN THAT
ORDINANCE PROVIDED THAT THE GAS COMPANY SHOULD "NOT AT ANY TIME CHARGE
FOR FURNISHING GAS" TO THE TEXAS CITY "A GREATER SUM  ...  THAN IT AT
THE SAME TIME CHARGES AND COLLECTS" FROM THE ARKANSAS CITY.  ON JUNE
17, 1930, THE GAS COMPANY ACCEPTED A COMPROMISE AGREEMENT, IN ORDINANCE
FORM, WHICH INCREASED THE RATES TO GAS CONSUMERS FROM THOSE SET OUT IN
THE 1923 FRANCHISE.  THIS IS THE ORDINANCE CONTAINING THE SEC. IX
HERETOFORE QUOTED AND IT IS THE ORDINANCE REGULATING RATES NOW IN
EFFECT IN THE TEXAS CITY. 

ON MAY 30, 1930, THE GAS COMPANY SECURED A SIMILAR ARRANGEMENT
ADJUSTING RATES FROM THE ARKANSAS CITY.  THERE HAD PREVIOUSLY BEEN IN
EFFECT A FRANCHISE OF 1923 WITH RATES SUBSTANTIALLY IDENTICAL WITH THE
TEXAS 1923 RATES.  THE ARKANSAS FRANCHISE OF 1930 WAS SUBJECTED TO A
REFERENDUM AND TO PROLONGED LITIGATION.  EVENTUALLY, ON DECEMBER 1,
1933, A FINAL ORDER SET ASIDE THE 1930 ORDINANCE OF THE ARKANSAS CITY
AND ESTABLISHED THE RATES OF THE 1923 ORDINANCE AS EFFECTIVE FOR THE
CONSUMERS OF THE ARKANSAS CITY FROM 1930 TO THE DATE OF THE DECREE. 
THIS DECREE ALSO REQUIRED REFUNDS TO THE ARKANSAS CONSUMERS FOR
OVERPAYMENT DURING THAT PERIOD.  FN5  BY FURTHER LITIGATION, A
RESOLUTION OF THE COUNCIL OF THE ARKANSAS CITY OF DECEMBER 22, 1933,
PROMULGATING RATES FOR THE FUTURE WAS UPHELD.  FN6  THESE LAST RATES
WERE THE 1923 RATES, MODIFIED IN MINOR PARTICULARS.  IN THE ORDER OF
DECEMBER 4, 1936, CONFIRMING THE RATES ESTABLISHED BY ITS RESOLUTION,
THE GAS COMPANY WAS DIRECTED TO REFUND TO THE CONSUMERS ANY OVERPAYMENT
BY REASON OF THE COLLECTION OF HIGHER RATES DURING THIS LAST JUDICIAL
PROCEEDING.  IT THUS APPEARS THAT THE LEGAL RATES TO THE CONSUMERS OF
THE ARKANSAS CITY AT ALL TIMES HAVE BEEN SUBSTANTIALLY THOSE OF THE
1923 ORDINANCE. 

IN TEXARKANA, TEXAS, THE CONSUMERS HAVE PAID SINCE 1930 THE RATES
FIXED IN THAT ORDINANCE, WHICH ARE SUBSTANTIALLY HIGHER THAN THOSE
FINALLY DETERMINED AS APPLICABLE TO THE ARKANSAS CONSUMERS.  THE GAS
COMPANY IN OCTOBER, 1933, SOUGHT FROM THE TEXAS CITY COUNCIL RATES
STILL HIGHER THAN THOSE GRANTED BY THE 1930 ORDINANCE.  THE COMPANY
GAVE NOTICE THAT ON NOVEMBER 23, 1933, A NEW AND HIGHER SCHEDULE OF
RATES THAN THOSE PROVIDED IN THE 1930 AGREEMENT WOULD BE ESTABLISHED IN
THE TEXAS CITY.  THE TEXAS CITY SOUGHT AND OBTAINED IN THE STATE COURT
AN INJUNCTION AGAINST THIS INCREASE.  THIS IS STILL EFFECTIVE.  THIS
SUIT WAS REMOVED TO THE FEDERAL DISTRICT COURT FOR TEXAS.  THE BILL WAS
AMENDED ON JANUARY 15, 1934, TO SET UP AN ADDITIONAL CAUSE OF ACTION
AGAINST THE GAS COMPANY BY REASON OF THE ENTRY OF THE DECREE ON
DECEMBER 1, 1933, IN THE ARKANSAS LITIGATION.  AS THIS DECREE WAS A
FINAL ORDER DETERMINING THAT THE ARKANSAS CONSUMERS SHOULD PAY ONLY THE
1923 RATES, THE TEXAS CITY CONCEIVED ITS CITIZENS SHOULD HAVE THE
BENEFIT OF THE SAME LOWER RATES BY VIRTUE OF SEC. IX.  IT WAS FURTHER
SOUGHT BY THIS AMENDMENT TO RECOVER FOR THE AFFECTED TIME A REFUND FOR
THE TEXAS CONSUMERS EQUAL TO THE DIFFERENCE BETWEEN THE ARKANSAS RATES,
AS DETERMINED BY THE DECREE OF DECEMBER 1, 1933, AND THE TEXAS 1930
RATES.  LATER, ON DECEMBER 30, 1936, A SUPPLEMENTAL BILL WAS FILED TO
SET OUT THE FURTHER CLAIM OF THE TEXAS CITY CONSUMERS, FOR THE PERIOD
BETWEEN THAT COVERED BY THE FIRST AMENDMENT AND THE FILING OF THE
SUPPLEMENTAL BILL, TOGETHER WITH A PRAYER THAT THE GAS COMPANY BE
COMPELLED TO PAY INTO THE REGISTRY OF THE COURT THE EXCESS AMOUNT WHICH
IT WAS ALLEGED IT HAD AND WAS CONTINUOUSLY COLLECTING FROM THE TEXAS
CONSUMERS.  IMMEDIATE DISTRIBUTION WAS ASKED FOR THE FUNDS APPLICABLE
TO THOSE PERIODS CONCERNING WHICH NO FURTHER ARKANSAS LITIGATION WAS
PENDING. 

THE SITUATION FROM THE STANDPOINT OF THE TEXAS CITY MIGHT BE
SUMMARIZED BY SAYING THAT IT SEEKS FOR ITS CONSUMERS THE LOWER 1923
ARKANSAS RATES INSTEAD OF THE TEXAS 1930 RATES, FROM THE EFFECTIVE DATE
OF THE ARKANSAS RESOLUTION OF MAY 30, 1930, TO FEBRUARY 16, 1934.  THIS
REFUND IS CLAIMED BECAUSE THE ARKANSAS CONSUMERS OBTAINED THESE LOWER
RATES BY THE ARKANSAS DECREE OF DECEMBER 1, 1933, AND THE VOLUNTARY ACT
OF THE GAS COMPANY IN COLLECTING THE LOWER RATES FROM THE DATE OF THE
DECREE TO FEBRUARY 16, 1934.  ON FINAL AFFIRMANCE OF THE ARKANSAS
LITIGATION, IT SEEKS REFUNDS FOR ITS CONSUMERS FROM FEBRUARY 16, 1934,
TO DECEMBER 4, 1936, OF THE DIFFERENCE BETWEEN THE TEXAS 1930 RATES AND
THE ARKANSAS DECEMBER 22, 1933, RATES.  THIS REFUND IS CLAIMED BECAUSE
OF THE DECREE OF DECEMBER 4, 1936,  FN7  VALIDATING FOR THE ARKANSAS
CONSUMERS THE RATES OF THE 1933 RESOLUTION.  THESE RATES WERE
SUBSTANTIALLY THE SAME AS THOSE FIXED IN THE 1923 ORDINANCE.  AS AN
INJUNCTION, PENDING APPEAL, WAS REFUSED, THESE LOWER RATES HAVE BEEN IN
EFFECT IN ARKANSAS SINCE THE DATE OF THE DECREE.  AS POINTED OUT ABOVE,
THE DECREE WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS AND CERTIORARI
REFUSED HERE.  IT IS FURTHER SOUGHT TO HAVE PUT INTO EFFECT IN TEXAS
THE RATES COLLECTED IN ARKANSAS AFTER DECEMBER 4, 1936.  THE RIGHT TO
THE LOWER RATES AND TO THE REFUND DEPENDS UPON THE INTERPRETATION OF
SEC. IX. 

ANOTHER BILL WAS FILED BY THE TEXAS CITY IN MAY, 1934, SEEKING
SUBSTANTIALLY THE SAME RELIEF AS THAT SOUGHT IN THE PROCEEDING
HERETOFORE DETAILED.  THE REASONS FOR THE FILING OF THIS SECOND SUIT
AND ITS PURPOSE ARE NOT MATERIAL TO THE PRESENT PROCEEDING.  THE TWO
ACTIONS WERE CONSOLIDATED.  LATER MOTIONS, PLEADINGS AND THE DECREE IN
THE TWO CASES ARE THE SAME. 

THE GAS COMPANY FILED ANSWERS TO THE BILLS SET OUT ABOVE AND A
COUNTERCLAIM SEEKING HIGHER RATES.  SECTION IX WAS CHALLENGED AS
INVALID BECAUSE OF CONFLICT WITH THE PROVISIONS OF THE CITY CHARTER,
THE LAWS AND CONSTITUTION OF TEXAS.  IT WAS ASSERTED THAT THE SECTION
WAS NOT A BINDING CONTRACT ON EITHER PARTY TO THE FRANCHISE AND FURTHER
ASSERTED THAT IF SEC. IX WAS VALID, IT WAS INAPPLICABLE TO ANY OF THE
THREE PERIODS FOR WHICH THE TEXAS CITY SOUGHT RELIEF AND REFUND.  THE
DISTRICT COURT GRANTED THE CITY'S MOTION TO STRIKE THE ANSWERS AND
COUNTERCLAIM AND, THE GAS COMPANY DECLINING TO AMEND, DECREED THAT SEC.
IX WAS A BINDING CONTRACT BETWEEN THE PARTIES; THAT IT WAS INAPPLICABLE
TO THE PERIOD PRIOR TO DECEMBER 1, 1933; THAT REFUND SHOULD BE MADE
FROM DECEMBER 1, 1933, TO FEBRUARY 16, 1934; AND THAT THE SUIT WAS
PREMATURE AS TO THE PERIOD AFTER FEBRUARY 16, 1934, BECAUSE AN APPEAL
WAS PENDING IN THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT AT
THE TIME THE SECOND AMENDMENT WAS FILED BY THE TEXAS CITY ON DECEMBER
30, 1936.  THE CIRCUIT COURT OF APPEALS REVERSED AND REMANDED WITH
DIRECTIONS TO DISMISS THE BILL.  FN8  IT THOUGHT THAT SEC. IX WAS AN
INVALID ABDICATION OR DELEGATION OF THE TEXAS CITY'S RATE-MAKING POWER
SINCE THE SECTION PURPORTED TO BIND BOTH PARTIES TO LOWER RATES WHICH
MIGHT BE FIXED BY THE GAS COMPANY AND THE ARKANSAS CITY.  THE LOWER
COURT STATED ALSO, WITHOUT DISCUSSION, THAT THE CLAUSE WAS INAPPLICABLE
EVEN IF VALID.  THE PETITION FOR CERTIORARI RELIES UPON THE ALLEGED
ERROR OF THE LOWER COURT IN DECIDING THAT THE SECTION WAS INVALID AND
INAPPLICABLE. 

ABDICATION OR DELEGATION OF REGULATORY POWER.  BY THE ACT TO
INCORPORATE THE CITY OF TEXARKANA, TEXAS, THE LEGISLATURE GRANTED A
SPECIAL CHARTER WHICH CONTAINED DELEGATIONS OF POWER TO THE
MUNICIPALITY TO CONTRACT FOR UTILITIES AND TO REGULATE GAS RATES, AND
PROHIBITIONS AGAINST THE GRANTING OF A FRANCHISE WITHOUT SPECIFIC
RESERVATION OF THIS POWER OF FUTURE REGULATION.  FN9  THE RESPONDENT
TAKES THE POSITION THAT SINCE SEC. IX NOT ONLY REQUIRES THE APPLICATION
OF LOWER ARKANSAS RATES TO TEXAS CONSUMERS BUT PROVIDES THAT THE GAS
COMPANY "SHALL NOT BE AUTHORIZED OR PERMITTED TO CHARGE AND COLLECT ANY
HIGHER RATE," THE TEXAS CITY HAS ABDICATED POWER TO RAISE THE TEXAS
RATES ABOVE THE ARKANSAS RATES.  AS THE TEXAS CITY IS FORBIDDEN TO GIVE
UP THE POWER TO REGULATE RATES, THE SECTION, SAYS THE COMPANY, IS
INVALID. 

THE CITY AGREES THAT ANY DELEGATION OR ABDICATION OF COMPLETE POWER
TO REGULATE RATES WOULD BE UNLAWFUL AND ANY PROVISION OF A FRANCHISE
LEADING TO THAT RESULT INVALID UNDER THE DECISIONS OF TEXAS.  FN10  IT
IS THE PETITIONER'S POSITION, HOWEVER, THAT A PROPER INTERPRETATION OF
THE SECTION LEAVES WITH THE CITY THE UNIMPAIRED POWER TO REGULATE THE
GAS RATES, WITHIN THE LIMITS OF THE APPLICABLE CONSTITUTIONAL
PROVISIONS.  WE AGREE WITH THIS ANALYSIS OF THE SECTION.  THE WORDS
JUST QUOTED PROHIBITING THE CHARGE OR COLLECTION OF HIGHER RATES MORE
REASONABLY IMPLY A LIMITATION ON THE RIGHT OF THE GAS COMPANY TO LOOK
TO OTHER PROVISIONS OF THE FRANCHISE FOR AUTHORITY TO EXACT OTHER
RATES.  BUT IF THIS VIEW IS NOT ACCEPTED, IT IS QUITE CLEAR THAT THE
CHARTER PROVISION 163A RETAINING THE RIGHT TO REGULATE MUST BE READ
INTO THE FRANCHISE.  THIS WOULD RESULT IN LEAVING IN THE COUNCIL OF THE
TEXAS CITY THE POWER TO RAISE OR LOWER THE GAS RATES. 

NOR, IN THIS VIEW, CAN IT BE SAID THERE IS DELEGATION AS DISTINCT
FROM ABDICATION OF THE POWER TO REGULATE.  IT IS TRUE, EXTRA-STATE
ACTION DETERMINES THAT THE RATE SHALL LESSEN, BUT THE COUNCIL HAS POWER
OVER THE RATES AT ALL TIMES.  THE ARKANSAS RATE IS A MERE MEASURING
ROD, AS THOUGH THE RATE FLUCTUATED WITH TEMPERATURE OR CONSUMPTION. 
EVEN IF SEC. VIII-A  FN11  IS VALID, IN THE FACE OF SECS. 163, 163A AND
196 OF THE CHARTER, IT IS INAPPLICABLE, BY ITS TERMS, TO THE POWER OF
THE CITY TO INCREASE RATES. 

THE OBLIGATION OF THE UTILITY UNDER SECTION IX.  AS THE LOWER COURT
DETERMINED SEC. IX IS WHOLLY INVALID AS A DELEGATION AND ABDICATION BY
THE CITY OF ITS RATE MAKING POWERS, THERE WAS NO OCCASION FOR IT TO
CONSIDER WHETHER THE SECTION WAS BINDING UPON THE UTILITY ALONE.  WITH
THE CONCLUSION THAT THE CITY IS FREE TO RAISE OR LOWER THE RATE, IN THE
PUBLIC INTEREST, WE MUST INQUIRE WHETHER THE GAS COMPANY IS BOUND TO
FURNISH TEXAS CONSUMERS THEIR GAS AT THE LESSENED ARKANSAS RATES.  THE
DETERMINATION FOLLOWS THE STATE LAW.  FN12  THIS COURT LOOKS TO THE
TRIAL COURT FOR THE ORIGINAL EXAMINATION OF LOCAL QUESTIONS  FN13  AND
RELIES FOR AID UPON THE EXPLANATION OF ITS CONCLUSION.  WHILE NO
OPINION WAS WRITTEN IN THE TRIAL COURT, ITS DECREE FOUND SEC. IX A
"BINDING CONTRACT" AND AWARDED RECOVERY FOR A PORTION OF THE TIME
INVOLVED.  ASSUMING THE DISTRICT COURT AGREED WITH THIS COURT THAT THE
CITY COULD NOT AND DID NOT DELEGATE OR ABDICATE ITS RATE MAKING
FUNCTION, THIS NECESSARILY REQUIRED A HOLDING THAT THE COMPANY ALONE
WAS BOUND BY THIS SECTION OF THE CONTRACT.  AN APPEAL, WITH SPECIFIC
ASSIGNMENT OF THIS RULING AS ERROR, BROUGHT THE CASE TO THE CIRCUIT
COURT OF APPEALS AND THE POINT IS ARGUED HERE BY RESPONDENT AS
JUSTIFICATION FOR THE JUDGMENT REVERSING THE DISTRICT COURT.  FN14
UNDER THESE CIRCUMSTANCES, WE FEEL CONSTRAINED TO PASS UPON THE
QUESTION.  FN15 

IT CANNOT BE SAID THAT ANY OPINION OF THE SUPREME COURT OF TEXAS
SETTLES THE PROBLEM OF WHETHER A UTILITY IS BOUND TO A CONTRACT FOR A
SCHEDULE OF RATES WHEN THE MUNICIPALITY IS NOT.  THAT COURT, IN 1925,
IN DALLAS RAILWAY CO. V. GELLER, DID STATE THAT AN ORDINANCE ON RATES
IS A CONTRACT.  FN16  THERE HAD BEEN A FRANCHISE WITH A FIXED MAXIMUM
RATE.  THE MUNICIPALITY GRANTED AN INCREASE.  A CITIZEN OBJECTED ON THE
GROUND THAT THE FRANCHISE, AS A CONTRACT, BOUND THE MUNICIPALITY AND
THE UTILITY TO THE AGREED RATE.  THE COURT OF CIVIL APPEALS  FN17  HELD
THE RATE SECTION OF THE FRANCHISE WAS NOT A "FIXED CONTRACT" BUT A RATE
SCHEDULE, SUBJECT TO THE CITY'S POWER OF REGULATION BY REASON OF SEC.
17 OF ARTICLE 1 OF THE TEXAS CONSTITUTION FORBIDDING UNCONTROLLABLE
GRANTS OF SPECIAL PRIVILEGES.  ON REVIEW, THE SUPREME COURT STATED THAT
A QUESTION HAD BEEN RAISED BY CITY ATTORNEYS, APPEARING AS AMICI
CURIAE, AS TO THE MEANING OF THE LANGUAGE OF THE LOWER COURT WHICH WAS
CONSTRUED BY SOME TO HOLD THAT "A MUNICIPALITY CANNOT MAKE CONTRACTS
THAT ARE BINDING UPON PUBLIC SERVICE CORPORATIONS."  FN18  WHILE THE
COURT COULD HAVE AVOIDED COMMENT ON THE POINT UPON THE THEORY THAT
WHETHER OR NOT THERE WAS A CONTRACT, THE CITY'S REGULATORY POWER WAS
UNAFFECTED, IT CHOSE TO INTERPRET THE FRANCHISE IN THE LIGHT OF THE
CONTRACT IN THESE WORDS:  "THE RIGHT OR POWER TO FURTHER CONTROL OR
REGULATE THE GRANT IN REGARD TO THE RATE SCHEDULE IS A RESERVATION TO
THE MUNICIPALITY AND NOT AN INHIBITION TO CONTRACT; AND WHERE A
FRANCHISE IS ACCEPTED BY A GRANTEE, THIS RESERVATION  ...  BECOMES A
PART OF THE CONTRACT."  LATER THE SUPREME COURT, IN DISCUSSING THE
POWER OF THE LEGISLATURE TO AUTHORIZE SPECIFICALLY BINDING RATE
CONTRACTS FOR DEFINITE PERIODS, CITING THE UVALDE CASE, SAID, "IT IS
WELL ESTABLISHED IN THIS STATE THAT THE LEGISLATURE  ...  MAY AUTHORIZE
MUNICIPAL CORPORATIONS TO ENTER INTO CONTRACTS" FOR RATES FOR LIMITED
PERIODS.  FN19  WE REASON FROM THESE OPINIONS THAT IN TEXAS A UTILITY
FRANCHISE IS A CONTRACT, WITH AN EXPRESS OR IMPLIED PROVISION THAT THE
RATE SCHEDULES ARE SUBJECT TO REGULATION BY THE CITY.  IN SUCH A
CONTRACT AN AGREEMENT BY THE UTILITY TO LOWER RATES UNDER SPECIFIED
CONDITIONS IS BINDING, ALTHOUGH THE RULE AS TO THE RESERVED POWER OF
REGULATION PREVENTS THE CITY FROM AGREEING NOT TO RAISE OR LOWER
RATES.  GRANT OF THE FRANCHISE IS CONSIDERATION FOR THE UNDERTAKING OF
THE UTILITY TO MAINTAIN THE PRESCRIBED RATES UNTIL THEY ARE ALTERED BY
THE EXERCISE OF THE RESERVED POWER OF THE MUNICIPALITY TO REGULATE
RATES. 

THE CASE OF UVALDE V. UVALDE ELECTRIC & ICE CO., 1923,  FN20  IS
SUGGESTED AS AN AUTHORITY AGAINST INTERPRETING A RATE CONTRACT, INVALID
AS TO THE CITY, AS BINDING UPON THE UTILITY.  UVALDE, WITHOUT POWER TO
CONTRACT FOR RATES, DID SO CONTRACT.  THE UTILITY RAISED THE RATES
WITHOUT PERMISSION.  THE COURT WAS OF THE VIEW THAT "THE POWER TO
REGULATE RATES AND THE POWER TO STIPULATE BY CONTRACT FOR A TERM OF 10
YEARS FOR RATES CANNOT COEXIST."  LOOKING AT THE CONTRACT IN THIS WAY
AND WITHOUT DISCUSSION OF THE EFFECT OF THE ATTEMPTED AGREEMENT ON THE
UTILITY, AN INJUNCTION AGAINST THE NEW RATES WAS REFUSED.  THAT CASE
APPEARS RATHER A PRECEDENT FOR THE RULE THAT WHERE A CITY IS NOT
AUTHORIZED TO CONTRACT AS TO RATES BUT ONLY TO REGULATE THEM, ANY
EFFORT TO CONTRACT IS NUGATORY.  AS INDICATED ABOVE, IT HAS BEEN CITED
BY THE SUPREME COURT OF TEXAS AS AUTHORITY FOR THE RIGHT OF A
MUNICIPALITY TO CONTRACT WHEN SO EMPOWERED. 

THIS COURT HAS HAD OTHER OCCASIONS TO CONSIDER THE RIGHTS OF TEXAS
UTILITIES UNDER THE PROVISIONS OF THE TEXAS STATUTES AND CONSTITUTION. 
IN SAN ANTONIO TRACTION CO. V. ALTGELT  FN21 WE ASSUMED A RATE CONTRACT
BETWEEN THE CITY AND THE STREET RAILWAY, AND RULED THAT IT WAS SUBJECT
TO SEC. 17 OF THE TEXAS BILL OF RIGHTS,  FN22  WHICH DECLARED THAT ALL
PRIVILEGES GRANTED BY THE LEGISLATURE REMAINED UNDER ITS CONTROL. 
CONSEQUENTLY, AN ENACTMENT CHANGING THE RATE AGREEMENT WAS VALID. 
LATER, 1920, IN SAN ANTONIO V. SAN ANTONIO PUBLIC SERVICE CO. FN23  IN
PASSING UPON A RATE INCREASE BY A UTILITY IN THE FACE OF A FRANCHISE
LIMITATION WE RULED THAT SEC. 17 OF THE CONSTITUTION, WITH ITS
PROVISION AGAINST IRREVOCABLE SPECIAL PRIVILEGES, MADE IMPOSSIBLE A
CONTRACT IN TEXAS ON RATES BECAUSE OF THE CONFLICT BETWEEN THE RIGHT TO
CONTRACT AND THE SUPERIOR AND INCONSISTENT POWER TO REGULATE.  TO THE
ARGUMENT THAT THE COMPANY MIGHT BE BOUND, THOUGH THE CITY WAS NOT, THE
COURT REPLIED:  IF THE CITY IS NOT BOUND "IT WOULD FOLLOW THAT THAT
POWER (UNCONTROLLED REGULATORY) WOULD BE REQUIRED TO BE EXERTED AND
HENCE THE SUPPOSED CONDITION OPERATING UPON THE PRIVATE OWNER WOULD BE
NUGATORY."  FN24 

THESE CONCLUSIONS OF THIS COURT ARE INAPPLICABLE HERE FOR TWO
REASONS:  FIRST, THE SUBSEQUENT OPINION OF THE SUPREME COURT OF TEXAS
IN THE GELLER CASE INDICATES THAT REGULATORY AND CONTRACT POWER MAY BE
EXERCISED CONCURRENTLY IN THAT STATE; SECOND, THE CHARTER OF TEXARKANA,
TEXAS, GIVES IT SPECIFIC POWER TO ENTER INTO FRANCHISE AGREEMENTS WITH
RATE REGULATION RESERVED TO THE CITY.  FN25  THE UTILITY WAS CHARGEABLE
WITH NOTICE IN 1930 OF THE RULE IN TEXAS, RESTATED IN THE TEXARKANA
CHARTER, THAT RATE REGULATORY POWER REMAINS IN THE MUNICIPALITY, AND
THE CHARTER PROVISION TO THAT EFFECT WAS RESERVED IN THE FRANCHISE BY
FORCE OF LAW.  IT CONTRACTED, NEVERTHELESS, TO FURNISH THE TEXAS CITY
GAS AT THE SAME RATES AS ARKANSAS CONSUMERS ENJOY.  THERE APPEARS NO
REASON WHY SUCH AN AGREEMENT SHOULD NOT BE ENFORCEABLE AND, IN OUR VIEW
OF THE TEXAS LAW, IT IS. 

APPLICABILITY.  THE TRIAL COURT DETERMINED THAT SEC. IX WAS NOT TO BE
APPLIED TO THE PERIOD PRIOR TO DECEMBER 1, 1933; THAT IT SHOULD BE
APPLIED TO THE PERIOD DECEMBER 1, 1933, TO FEBRUARY 16, 1934, AND THAT
THE EFFORT TO RECOVER REFUNDS FOR THE PERIOD AFTER FEBRUARY 16, 1934,
WAS PREMATURE.  THE CIRCUIT COURT OF APPEALS THOUGHT THE SECTION, IF
VALID, GENERALLY INAPPLICABLE.  WE ARE OF THE OPINION THAT THE LANGUAGE
OF THE SECTION WAS INTENDED TO AND DOES MAKE APPLICABLE TO EACH TEXAS
CONSUMER THE SAME RATES THAT ARKANSAS CONSUMERS ARE CHARGED FOR SIMILAR
USES AND QUANTITY, WHEN THE ARKANSAS RATES ARE LOWER THAN THE RATES
GRANTED TEXAS CONSUMERS BY THE ORDINANCE OF THE CITY OF TEXARKANA,
TEXAS, OF JUNE 13, 1930.  THIS FLOWS FROM THE WORDS IN SEC. IX "PLACE
IN ANY RATES" LESS THAN THE TEXAS ORDINANCE RATES. 

THE LOWER RATES FOR TEXAS ARE TO BE EFFECTIVE ONLY WHEN THE UTILITY
IS "FINALLY COMPELLED TO, OR SHOULD VOLUNTARILY, PLACE IN" EFFECT THE
LOWER RATES FOR ARKANSAS.  WHEN A RATE IS VOLUNTARILY PLACED IN EFFECT
IN ARKANSAS, THE TEXAS CONSUMERS ARE IMMEDIATELY ENTITLED TO THE SAME
RATE.  WE CONSTRUE "FINALLY COMPELLED" AS MEANING THE ENTRY BY A COURT
OF THE FINAL ORDER WHICH MAKES EFFECTIVE A CHALLENGED RATE ORDER.  NO
RIGHT TO DEMAND THE LOWER RATE AND NO CAUSE OF ACTION TO ENFORCE THE
RIGHT ARISES UNTIL THAT TIME.  WHEN SUCH ORDER IS ENTERED, HOWEVER, THE
TEXAS CONSUMERS ARE ENTITLED TO HAVE THE LOWERED RATE APPLIED TO THEIR
CONSUMPTION FOR THE SAME PERIOD OF TIME IT IS ENJOYED BY THE ARKANSAS
CONSUMERS.  THE PURPOSE OF THE CLAUSE WAS TO GIVE TEXAS CONSUMERS THE
ADVANTAGE OF LOWER ARKANSAS RATES FOR SIMILAR PERIODS OF TIME. 
LITIGATION, REGARDLESS OF ITS MERIT, MAY NOT STAY THE BEGINNING OF THE
LOWER TEXAS RATE.  IN OUR VIEW, SO MUCH OF THE RELIEF SOUGHT AS WAS
BASED UPON THE CHALLENGED RATE ORDER OF DECEMBER 22, 1933, WAS
PREMATURE.  FN26  AS THERE WAS AN APPEAL FROM THE DECREE OF DECEMBER 4,
1936, IT WAS INEFFECTIVE TO CREATE A CAUSE OF ACTION WHEN THE
SUPPLEMENTAL PETITION OF DECEMBER 30, 1936, WAS FILED. 

LEAVE TO FILE A SUPPLEMENTAL PETITION TO BRING TO DATE THE
CONTROVERSY OVER THE REFUND OF RATES, COLLECTED SUBSEQUENT TO FEBRUARY
16, 1934, SHOULD BE GRANTED, UPON THE RETURN OF THE CASE TO THE
DISTRICT COURT, ON MOTION OF THE CITY OF TEXARKANA, TEXAS.  THE PRESENT
ACTION IS AN APPROPRIATE PROCEEDING FOR THE SETTLEMENT OF THE ENTIRE
RATE CONTROVERSY AND THE REFUND OF SUCH SUMS AS MAY BE DETERMINED,
ULTIMATELY, TO BE DUE THE TEXAS CONSUMERS.  FN27  WHERE THERE IS A GOOD
CAUSE OF ACTION STATED IN THE ORIGINAL BILL, A SUPPLEMENTAL BILL
SETTING UP FACTS SUBSEQUENTLY OCCURRING WHICH JUSTIFY OTHER OR FURTHER
RELIEF IS PROPER.  IF THE ORIGINAL DECREE IN THE TRIAL COURT HAD NOT
BEEN ENTERED, THIS SUPPLEMENTAL PETITION WOULD SIMPLIFY THE
CONTROVERSY.  FN28  WE THINK THIS PROCEDURE IS EQUALLY APPLICABLE AFTER
REMAND FOR FURTHER PROCEEDINGS.  FN29 

OTHER SUGGESTIONS TO SUPPORT THE RESPONDENT'S POSITION THAT SEC. IX
IS INVALID ARE MADE.  IT IS SAID THAT IT IS VAGUE, INDEFINITE AND
OBSCURE.  THESE HAVE BEEN ANSWERED BY WHAT WE HAVE WRITTEN.  THE ISSUE
OF CONFISCATION TENDERED BY THE ANSWER OF THE UTILITY TO THE PETITION
TO ENFORCE THE OBLIGATIONS OF SEC. IX NEED NOT BE CONSIDERED IN THIS
PROCEEDING.  IF THE UTILITY HAS ENTERED INTO A BINDING CONTRACT AS TO
RATES, THEIR CONFISCATORY CHARACTER IS NOT A DEFENSE TO THE CLAIM OF
THE CITY TO SERVICE AT THE CONTRACT RATES.  FN30  REVERSED. 

FN1  ARKANSAS LOUISIANA GAS CO. V. TEXARKANA, 97 F.2D 5. 

FN2  305 U.S. 584. 

FN3  SEC. 160.  "THE RIGHTS OF THE CITY OF TEXARKANA IN THE USE OF
THE PUBLIC STREETS, ALLEYS, SQUARES, PARKS, BRIDGES AND ALL PUBLIC
PLACES ARE HEREBY DECLARED TO BE INALIENABLE TO ANY PERSON, FIRM OR
CORPORATION, EXCEPT BY LICENSE PERMIT AND FRANCHISE PASSED BY THE CITY
COUNCIL ON THE AFFIRMATIVE VOTE OF THREE-FIFTHS OF ALL THE MEMBERS OF
SAID COUNCIL ELECTED." 

SEC. 163.  "SAID PROPOSED FRANCHISE SHALL CONTAIN ALL THE TERMS AND
AGREEMENTS BETWEEN THE PARTIES THERETO, AND IT MUST EXPRESSLY SET FORTH
THAT THE COUNCIL SHALL HAVE THE RIGHT AND PRIVILEGE OF REGULATING AND
CONTROLLING THE OPERATION OF ALL BUSINESS DONE THEREUNDER, FIXING
FARES, RATES, TOLLS AND CHARGES AND INSPECTING THE BUSINESS AND WORK
FROM TIME TO TIME AS IT PROGRESSES, AND RATE REGULATIONS SHALL CONFORM
TO SECTION 197 OF THIS CHARTER." 

SEC. 163A.  "IN THE EVENT THAT ANY FRANCHISE OR PERMIT IS SO GIVEN BY
SAID COUNCIL, WHICH SHALL NOT CONTAIN SUCH STIPULATIONS THEREIN AS
PROVIDED FOR IN SECTION 162 OF THIS CHARTER, THEN IT SHALL,
NEVERTHELESS, BE CONSIDERED THAT ALL OF THE SAID STIPULATIONS CONTAINED
IN SAID SECTIONS 162, 163 AND 197 ARE PART AND PARCEL OF THE SAID
CONTRACT AND FRANCHISE, JUST AS THOUGH WRITTEN THEREIN, AND THE SAID
APPLICANT SO ACCEPTING SUCH FRANCHISE, AS WELL AS THEIR HEIRS, ASSIGNS
AND SUCCESSORS, SHALL BE HELD AND FIRMLY BOUND THERETO, NOTWITHSTANDING
SUCH OMISSIONS." 

FN4  SEC. 196.  "THAT THE CITY COUNCIL SHALL HAVE THE POWER TO
REGULATE BY ORDINANCE THE RATES AND COMPENSATION TO BE CHARGED BY ALL
WATER, GAS, LIGHT AND TELEPHONE COMPANIES, CORPORATIONS OR PERSONS
USING THE STREETS AND PUBLIC GROUNDS OF SAID CITY AND ENGAGED IN
FURNISHING WATER, GAS, LIGHT AND TELEPHONE SERVICE TO THE PUBLIC, AND
TO PRESCRIBE REASONABLE RULES AND REGULATIONS UNDER WHICH SUCH
COMMODITIES SHALL BE FURNISHED AND SERVICES RENDERED, AND TO FIX
PENALTIES TO ENFORCE SUCH CHARGES, RULES AND REGULATIONS; PROVIDED,
THAT THE CITY COUNCIL SHALL NOT PRESCRIBE ANY RATE OR COMPENSATION
WHICH WILL YIELD LESS THAN TEN PER CENT PER ANNUM NET ON THE ACTUAL
COSTS OF THE PHYSICAL PROPERTIES, EQUIPMENTS AND BETTERMENTS.  SAID
CITY COUNCIL MAY ALSO FIX THE CHARGES WHICH MAY BE COLLECTED FOR
TRANSPORTING PASSENGERS AND BAGGAGE IN VEHICLES ENGAGED IN PUBLIC
SERVICE." 

FN5  ARKANSAS LOUISIANA GAS CO. V. TEXARKANA, 97 F.2D 5, 6, COL. 2;
CF. SOUTHERN CITIES DISTRIBUTING CO. V. CARTER, 184 ARK. 4; 41 S.W.2D
1085, APPEAL DISMISSED 285 U.S. 525, 526; TEXARKANA V. SOUTHERN CITIES
DISTRIBUTING CO., 64 F.2D 944, CERT. DENIED 290 U.S. 650. 

FN6  ARKANSAS LOUISIANA GAS CO. V. TEXARKANA, 17 F.SUPP.  447;
AFFIRMED 96 F.2D 179; CERT. DENIED, 305 U.S. 606. 

FN7  UNITED STATES DISTRICT COURT, ARKANSAS:  ARKANSAS LOUISIANA GAS
CO. V. TEXARKANA, CAUSE NO. 219. 

FN8  ARKANSAS LOUISIANA GAS CO. V. TEXARKANA, 97 F.2D 5. 

FN9  THE PROVISIONS ARE SET OUT IN NOTES 3 AND 4, SUPRA. 

FN10  UVALDE V. UVALDE ELECTRIC & ICE CO., 250 S.W. 140; TEXAS GAS
UTILITIES CO. V. UVALDE, 77 S.W.2D 750; NAIRN V. BEAN (COM. 1932), 48
S.W.2D 584, 586; CF. RAILROAD COMM'N V. WELD & NEVILLE, 96 TEXAS 394,
405; 73 S.W. 529; MISSOURI-KANSAS & T.R. CO. V. RAILROAD COMM'N, 3
S.W.2D 489, 493; GREEN V. SAN ANTONIO WATER SUPPLY CO. (CIV. APP.), 193
S.W. 453. 

FN11  SECTION VIII-A.  "IN CONSIDERATION OF THE GRANTING OF THIS
FRANCHISE, IT IS MUTUALLY AGREED AND UNDERSTOOD BY AND BETWEEN THE
PARTIES HERETO THAT BEFORE THE CITY COUNCIL OF SAID CITY SHALL APPLY
FOR A REDUCTION IN RATES, OR BEFORE THE SOUTHERN CITIES DISTRIBUTING
COMPANY, ITS SUCCESSORS OR ASSIGNS, SHALL MAKE APPLICATION FOR AN
INCREASE IN RATES, EITHER PARTY SHALL GIVE TO THE OTHER PARTY ONE
YEAR'S NOTICE IN WRITING OF ITS INTENTION TO SO APPLY FOR AN INCREASE
OR DECREASE IN RATES, AND NO APPLICATION FOR INCREASE OR DECREASE IN
RATES SHALL BE ACTED UPON OR CONSIDERED UNLESS SAID ONE YEAR'S NOTICE
IS FIRST GIVEN BEFORE MAKING SUCH APPLICATION." 

FN12  SEC. 34, ACT OF SEPTEMBER 24, 1789, C. 20, 1 STAT. 73, 92, 28
U.S.C. 725; ERIE R. CO. V. TOMPKINS, 304 U.S. 64; SOUTHERN IOWA
ELECTRIC CO. V. CHARITON, 255 U.S. 539, 543; RAILROAD COMM'N V. LOS
ANGELES RY. CORP., 280 U.S. 145, 151. 

FN13  RAILROAD COMM'N V. LOS ANGELES RY. CORP., 280 U.S. 145, P. 164
DISSENT, N. 1. 

FN14  LANGNES V. GREEN, 282 U.S. 531, 538. 

FN15  CF. RUHLIN V. NEW YORK LIFE INS. CO., 304 U.S. 202, 206. 

FN16  114 TEXAS 484; 271 S.W. 1106. 

FN17  GELLER V. DALLAS RY CO., 245 S.W. 254, 256. 

FN18  IT WAS STATED IN PETITIONER'S BRIEF AND NOT DENIED THAT AFTER
THE DECISION IN UVALDE V. UVALDE ELEC.  & ICE CO., 250 S.W. 140,
DISCUSSED IN THE NEXT PARAGRAPH, BRIEFS WERE FILED IN THE SUPREME COURT
IN THE GELLER CASE ARGUING THE EFFECT OF THE UVALDE DECISION. 

FN19  LOWER COLORADO RIVER AUTHORITY V. MCGRAW, 83 S.W.2D 629, 638;
125 TEXAS 268. 

FN20  250 S.W. 140.  COMPARE TEXAS GAS UTILITIES CO. V. UVALDE, 77
S.W.2D 750, 752.    FN21  200 U.S. 304, 308. 

FN22  CONSTITUTION OF STATE OF TEXAS, BILL OF RIGHTS, VERNON'S TEXAS
STATUTES 1936, ART. I, P. XXV, SEC. 17.  "NO PERSON'S PROPERTY SHALL BE
TAKEN, DAMAGED OR DESTROYED FOR OR APPLIED TO PUBLIC USE WITHOUT
ADEQUATE COMPENSATION BEING MADE, UNLESS BY THE CONSENT OF SUCH PERSON;
AND, WHEN TAKEN, EXCEPT FOR THE USE OF THE STATE, SUCH COMPENSATION
SHALL BE FIRST MADE, OR SECURED BY A DEPOSIT OF MONEY; AND NO
IRREVOCABLE OR UNCONTROLLABLE GRANT OF SPECIAL PRIVILEGES OR
IMMUNITIES, SHALL BE MADE; BUT ALL PRIVILEGES AND FRANCHISES GRANTED BY
THE LEGISLATURE, OR CREATED UNDER ITS AUTHORITY SHALL BE SUBJECT TO THE
CONTROL THEREOF."    FN23  255 U.S. 547, 555, 556. 

FN24  CF. RAILROAD COMM'N V. LOS ANGELES RY. CORP., 280 U.S. 145,
151.  BUT CF. SOUTHERN UTILITIES CO. V. PALATKA, 268 U.S. 232, 233. 

FN25  SECS. 163, 163A, 196, NOTES 3 AND 4, SUPRA. 

FN26  ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S. 412, 429. 

FN27  RULE 15D, DISTRICT COURT RULES, SEPTEMBER 1, 1938.  CF. RULE
34, FEDERAL EQUITY RULES, 1912. 

FN28  NEW YORK SECURITY & TRUST CO. V. LINCOLN ST. RY. CO., 74 F. 67,
68; BANKS LAW PUB. CO. V. LAWYERS' CO-OPERATIVE PUB. CO., 139 F. 701;
KRYPTOK CO. V. HAUSSMANN & CO., 216 F. 267; MILO MANOR, INC. V.
WOODARD, 67 APP. D.C. 296; 92 F.2D 220, 223.  CF. CLARKE V. BOYSEN, 264
F. 492, 496, A CLOSED ACCOUNT CANNOT BE REOPENED. 

FN29  CF. 2 DANIELL'S CHANCERY PLEADING AND PRACTICE, 6TH AM. ED.,
PP. 1536, N. 6, AND 1537.  FOR FURTHER ACTION AFTER DECREE, SEE
MITCHELL COAL CO. V. PENNSYLVANIA R. CO., 230 U.S. 247, 266; MORRISDALE
COAL CO. V. PENNSYLVANIA R. CO., 230 U.S. 304, 314; RIO GRANDE DAM CO.
V. UNITED STATES, 215 U.S. 266, 274. 

FN30  CF. ST. CLOUD PUBLIC SERVICE CO. V. ST. CLOUD, 265 U.S. 352;
HENDERSON WATER CO. V. CORPORATION COMM'N, 269 U.S. 278; SEE SOUTHERN
IOWA ELEC.  CO. V. CHARITON, 255 U.S. 539, 542; PADUCAH V. PADUCAH RY.
CO., 261 U.S. 267, 272-73; GEORGIA RY. & POWER CO. V. DECATUR, 262 U.S.
432, 438-39; CF. COLUMBUS RY., POWER & L. CO. V. COLUMBUS, 249 U.S.
399, 410. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER ARE OF OPINION THAT THE
DECISION OF THE CIRCUIT COURT OF APPEALS IS RIGHT AND THAT ITS JUDGMENT
SHOULD BE AFFIRMED. 

MR. JUSTICE FRANKFURTER TOOK NO PART IN THE CONSIDERATION OR DECISION
OF THIS CASE. 
..END :









CURRIN V. WALLACE, 306 U.S. 1 


NO. 275.  ARGUED JANUARY 4, 1939.  - DECIDED JANUARY 30, 1939.  - 95
F.2D 856, AFFIRMED. 


1.  THERE IS AN ACTUAL CONTROVERSY IN THIS CASE BETWEEN PLAINTIFFS AND
DEFENDANTS, RESPECTING THE CONSTITUTIONALITY OF THE TOBACCO INSPECTION
ACT OF AUGUST 23, 1935, ENTITLING THE PLAINTIFFS TO INVOKE THE
DECLARATORY JUDGMENT ACT.  P. 9. 

2.  THE TOBACCO INSPECTION ACT OF AUGUST 23, 1935, AUTHORIZES THE
SECRETARY OF AGRICULTURE TO ESTABLISH STANDARDS OF TOBACCO AND TO
DESIGNATE THOSE AUCTION MARKETS WHERE TOBACCO BOUGHT AND SOLD MOVES IN
INTERSTATE OR FOREIGN COMMERCE; AND IT PROVIDES, UNDER PENALTY, THAT AT
A MARKET SO DESIGNATED, NO TOBACCO SHALL BE OFFERED FOR SALE AT AUCTION
UNTIL IT HAS BEEN INSPECTED AND CERTIFIED BY AN AUTHORIZED
REPRESENTATIVE OF THE SECRETARY ACCORDING TO SUCH STANDARDS.  HE CAN
NOT DESIGNATE A MARKET UNLESS TWO-THIRDS OF THE GROWERS VOTING AT A
PRESCRIBED REFERENDUM FAVOR IT.  IN CASE COMPETENT INSPECTORS ARE NOT
AVAILABLE OR FOR OTHER REASONS THE SECRETARY IS UNABLE TO PROVIDE FOR
INSPECTION AND CERTIFICATION AT ALL AUCTION MARKETS WITHIN A TYPE AREA,
HE SHALL FIRST DESIGNATE THOSE MARKETS WHERE THE GREATEST NUMBER OF
GROWERS MAY BE SERVED WITH THE FACILITIES AVAILABLE.  HE MAY SUSPEND
INSPECTION AND CERTIFICATION AT A MARKET HE HAS DESIGNATED IF COMPETENT
INSPECTORS ARE NOT AVAILABLE OR THE QUANTITY OF TOBACCO IS NOT ENOUGH
TO JUSTIFY THE COST OF THE SERVICE.  HELD: 

(1)  SUCH REGULATION, FOR THE PROTECTION OF SELLERS OR PURCHASERS, OR
BOTH, IS WITHIN THE COMMERCE POWER AS RESPECTS THE SELLING FOR
TRANSPORTATION TO OTHER STATES OR BROAD; AND IN VIEW OF THE MANNER OF
THE SELLING AT THE AUCTIONS, WHERE ALL TRANSACTIONS ARE CONDUCTED
INDISCRIMINATELY AND VIRTUALLY AT THE SAME TIME, CONGRESS WAS
AUTHORIZED TO APPLY ITS REGULATION TO INTRASTATE SALES IN ORDER TO MAKE
IT EFFECTIVE AS TO THE SALES IN INTERSTATE AND FOREIGN COMMERCE.  PP.
9, 11. 

(2)  THE AUCTION IS A PART OF THE SALES CONSUMMATED, NOTWITHSTANDING
THAT IN THE MARKET PRACTICE THE GROWERS ARE NOT BOUND TO ACCEPT BIDS,
AND IN SOME INSTANCES REJECT THEM.  P. 10. 

(3)  REGULATIONS UNDER THE COMMERCE CLAUSE MAY HAVE THE QUALITY OF
POLICE REGULATIONS.  P. 11. 

(4)  THE INSPECTION AND GRADING UNDER THE ACT, THOUGH THEY TAKE PLACE
BEFORE THE AUCTION, HAVE IMMEDIATE RELATION TO THE SALES IN INTERSTATE
AND FOREIGN COMMERCE.  P. 12. 

(5)  THE FACT THAT, FOR WANT OF A SUFFICIENT NUMBER OF EXPERTS TO
INSPECT AND GRADE THE TOBACCO, BUT A FEW OF THE TOBACCO AUCTION MARKETS
IN NORTH CAROLINA HAVE BEEN DESIGNATED, WITH THE RESULT THAT SOME
WAREHOUSEMEN OPERATING SUCH MARKETS ARE BOUND BY THE REQUIREMENTS OF
INSPECTION AND CERTIFICATION, WHILE OTHERS, IN THE SAME SORT OF
BUSINESS AND COMPETING FOR THE PATRONAGE OF THE SAME GROWERS, REMAIN
FREE FROM SUCH REQUIREMENTS, DOES NOT RENDER THE REGULATION INVALID FOR
DISCRIMINATION.  P. 13. 

(6)  MERE LACK OF UNIFORMITY DOES NOT INVALIDATE A REGULATION OF
INTERSTATE OR FOREIGN COMMERCE.  P. 14. 

(7)  THE PROVISION FOR A REFERENDUM VOTE OF TOBACCO GROWERS IS MERELY
A CONDITION UPON THE APPLICATION OF THE CONGRESSIONAL REGULATION, AND
DOES NOT INVOLVE UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER.  P.
15. 

(8)  THE ACT DOES NOT INVOLVE UNCONSTITUTIONAL DELEGATION OF
LEGISLATIVE POWER TO THE SECRETARY OF AGRICULTURE.  P. 16. 

3.  IT DOES NOT APPEAR THAT IN THIS CASE THE POWER OF THE SECRETARY
OF AGRICULTURE UNDER THE TOBACCO INSPECTION ACT WAS ARBITRARILY OR
CAPRICIOUSLY USED.  P. 18. 

4.  THE CLAIM OF THE PLAINTIFFS IN THIS CASE, WHO ARE WAREHOUSEMEN
AND AUCTIONEERS SELLING TOBACCO ON COMMISSION FOR THE GROWERS WHO OWN
THE TOBACCO, THAT THE ACT INFLICTS UPON THEM A LOSS OF PATRONAGE AND
BUSINESS, WAS NOT SUSTAINED BY PROOF.  P. 18. 

CURRIN ET AL. V. WALLACE, SECRETARY OF AGRICULTURE, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 305 U.S. 584, TO REVIEW A DECREE REVERSING A DECREE OF
THE DISTRICT COURT, 19 F.SUPP.  211, WHICH, AT THE SUIT OF CERTAIN
WAREHOUSEMEN AND AUCTIONEERS, ENJOINED THE SECRETARY OF AGRICULTURE AND
OTHER FEDERAL OFFICERS FROM ENFORCING CERTAIN REQUIREMENTS OF THE
TOBACCO INSPECTION ACT. 

PETITIONERS ARE ENTITLED TO MAINTAIN THIS SUIT. 

THE TRANSACTION OF OFFERING FOR SALE TOBACCO AT AUCTION ON WAREHOUSE
FLOORS IS NOT A TRANSACTION IN INTERSTATE COMMERCE. 

AFTER THE TOBACCO HAS GONE THROUGH THE AUCTION SALE THE FARMER MAY,
AND OFTEN DOES, REJECT THE OFFERED PRICE AND TAKE HIS TOBACCO AWAY. 

THE TOBACCO ACQUIRES INTERSTATE CHARACTER ONLY WHEN THE SALE IS
CONSUMMATED AND POSSESSION PASSES FROM GROWER TO PURCHASER.  TOBACCO,
MOVING FROM THE FIELDS TO THE CURING BARNS, AND FROM THE CURING BARNS
TO THE WAREHOUSE FLOORS, IS NO PART OF INTERSTATE COMMERCE.  OBSERVE
THAT THE INSPECTION IS REQUIRED PRIOR TO THE OFFERING FOR SALE. 
CONTROL OVER COMMODITIES UP TO THE POINT OF SALE IS RESERVED TO THE
STATES BY THE TENTH AMENDMENT.  UNITED MINE WORKERS V. CORONADO CO.,
259 U.S. 344; HEISLER V. THOMAS COLLIERY CO., 260 U.S. 246; OLIVER
MINING CO. V. LORD, 262 U.S. 172; CHAMPLIN REFINING CO. V. CORPORATION
COMM'N, 286 U.S. 210; HOPE GAS CO. V. HALL, 274 U.S. 284. 

IN HAMMER V. DAGENHART, 247 U.S. 251; UNITED LEATHER WORKERS V.
HERKERT, 265 U.S. 457; UNITED STATES V. E.C. KNIGHT CO., 156 U.S. 1;
KIDD V. PEARSON, 128 U.S. 1, THE COURT HOLDS THAT THE MANUFACTURE OF
GOODS INTENDED TO BE TRANSPORTED AND SUBSEQUENTLY SHIPPED IN INTERSTATE
COMMERCE IS NOT INTERSTATE COMMERCE. 

THE CUTTING OF TIMBER, FOR IMMEDIATE TRANSPORTATION TO OTHER STATES,
IS NOT INTERSTATE COMMERCE.  COE V. ERROL, 116 U.S. 517; MCCLUSKEY V.
MARYSVILLE & N. RY. CO., 243 U.S. 36; CARTER V. CARTER COAL CO., 298
U.S. 238. 

THE GINNING OF COTTON, ALTHOUGH THE COTTON IS TO BE IMMEDIATELY
TRANSPORTED IN INTERSTATE COMMERCE, AND ALTHOUGH THE COTTON HAS ALREADY
BEGUN ITS JOURNEY FROM THE FIELDS TO THE MARKET, IS NOT INTERSTATE
COMMERCE.  CRESCENT OIL CO. V. MISSISSIPPI, 257 U.S. 129; FEDERAL
COMPRESS & WAREHOUSE CO. V. MCLEAN, 291 U.S. 17; CHASSANIOL V.
GREENWOOD, 291 U.S. 584; BURCO, INC. V. WHITWORTH, 81 F.2D 721. 

THE GENERATION OF ELECTRICITY, WHICH IS INSTANTLY THEREAFTER
TRANSMITTED ACROSS STATE LINES, IS NOT INTERSTATE COMMERCE.  UTAH POWER
& LIGHT CO. V. PFOST, 285 U.S. 165. 

IF CONGRESS HAS THE POWER UNDER THE COMMERCE CLAUSE OR THE GENERAL
WELFARE CLAUSE TO COMPEL A PERSON TO SUBMIT TOBACCO TO GOVERNMENT
REGULATIONS, PRIOR TO ITS SALE AND PRIOR TO ITS DELIVERY TO THE BUYER,
THEN SUCH POWER WILL DELIVER TO FEDERAL CONTROL THE TOBACCO YET
UNPLANTED AND UNHARVESTED AND UNSOLD, BECAUSE IT IS IN LARGE PART
DESTINED FOR AND SURELY TO BE EXPORTED TO STATES OTHER THAN THAT OF ITS
PRODUCTION.  CF. COE V. ERROL, SUPRA; SCHECHTER CORP. V. UNITED STATES,
295 U.S. 495. 

DECLARATIONS BY WAY OF INDUCEMENT TO THE ENACTMENT WHICH FOLLOWS ADD
NOTHING TO THE VALIDITY OF THE ACT. 

THE POWER TO LEGISLATE FOR THE COMMON DEFENSE AND GENERAL WELFARE OF
THE UNITED STATES DOES NOT JUSTIFY THIS ACT. 

THE ACT IN ITS APPLICATION UNCONSTITUTIONALLY DISCRIMINATES BETWEEN
WAREHOUSEMEN. 

IT UNCONSTITUTIONALLY DELEGATES LEGISLATIVE POWER. 

IT VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

THE PETITIONERS ARE DISQUALIFIED FROM VOTING UNDER THE TERMS OF THE
ACT, ALTHOUGH IT VITALLY AFFECTS THEIR BUSINESS AND PROPERTY, AND
ALTHOUGH IT IMPOSES DUTIES AND EXPENSE UPON THEM WITHOUT REMUNERATION
FROM THE GOVERNMENT.  THEY ARE PUT AT THE MERCY OF A GROUP OF GROWERS
WHO VOTE AFFIRMATIVELY IN FAVOR OF THE INSPECTION.  BY THIS ACT THE
POWER TO LEGISLATE IS CONFERRED UPON THESE GROWERS, WHO MAY BE A VERY
SMALL MINORITY OF THE WHOLE CLASS.  THUS IT CAN BE SEEN THAT THIS
STATUTE UNDERTAKES "AN INTOLERABLE AND UNCONSTITUTIONAL INTERFERENCE
WITH PERSONAL LIBERTY AND PRIVATE PROPERTY."  CARTER V. CARTER COAL
CO., SUPRA. 

THE 1782 GROWERS WHO VOTED COMPULSORY GRADING ON PETITIONERS' FLOORS
ARE LEFT AT LIBERTY TO SELL THEIR TOBACCO UNGRADED ON MARKETS TO WHICH
THE COMPULSION HAS NOT BEEN APPLIED.  THEY HAVE SHACKLED THE OXFORD
WAREHOUSEMEN, WHO COULD NOT VOTE, BUT LEFT THEMSELVES FREE TO SELL
THEIR TOBACCO AS THEY CHOOSE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PLAINTIFFS, TOBACCO WAREHOUSEMEN AND AUCTIONEERS IN OXFORD, NORTH
CAROLINA, SEEK A DECLARATORY JUDGMENT  FN1  THAT THE TOBACCO INSPECTION
ACT OF AUGUST 23, 1935,  FN2  IS UNCONSTITUTIONAL AND AN INJUNCTION
AGAINST ITS ENFORCEMENT.  THE CIRCUIT COURT OF APPEALS, REVERSING THE
DISTRICT COURT,  FN3  SUSTAINED THE VALIDITY OF THE ACT AND DIRECTED
THE DISMISSAL OF THE BILL OF COMPLAINT.  95 F.2D 856.  WE GRANTED
CERTIORARI.  305 U.S. 584. 

THE ACT STATES ITS SCOPE AND PURPOSE.  SECS. 1, 2.  IT APPLIES TO
TRANSACTIONS INVOLVING THE SALE OF TOBACCO AT AUCTION AS COMMONLY
CONDUCTED AT AUCTION MARKETS.  THESE TRANSACTIONS ARE CARRIED ON BY
TOBACCO PRODUCERS AND BY PERSONS ENGAGED IN THE BUSINESS OF BUYING AND
SELLING TOBACCO IN COMMERCE AS DEFINED, THAT IS, IN COMMERCE WHICH IS
INTERSTATE OR FOREIGN OR IS WITH OR WITHIN THE TERRITORIES OR THE
DISTRICT OF COLUMBIA.  FN4  CONGRESS FINDS THAT THE CLASSIFICATION OF
TOBACCO ACCORDING TO TYPE, GRADE, AND OTHER CHARACTERISTICS AFFECTS THE
PRICES RECEIVED; THAT "WITHOUT UNIFORM STANDARDS OF CLASSIFICATION AND
INSPECTION THE EVALUATION OF TOBACCO IS SUSCEPTIBLE TO SPECULATION,
MANIPULATION AND CONTROL," AND "UNREASONABLE FLUCTUATIONS IN PRICES AND
QUALITY DETERMINATIONS OCCUR," CONSTITUTING A BURDEN UPON COMMERCE; AND
THAT THE USE OF UNIFORM STANDARDS IS IMPERATIVE "FOR THE PROTECTION OF
PRODUCERS AND OTHERS ENGAGED IN COMMERCE AND THE PUBLIC INTEREST
THEREIN." 

THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO INVESTIGATE THE
HANDLING, INSPECTION AND MARKETING OF TOBACCO AND TO ESTABLISH
STANDARDS BY WHICH ITS TYPE, GRADE, SIZE, CONDITION, OR OTHER
CHARACTERISTICS MAY BE DETERMINED AND THESE STANDARDS ARE TO BE THE
OFFICIAL STANDARDS OF THE UNITED STATES.  SECS. 3, 4. 

THE SECRETARY IS AUTHORIZED TO DESIGNATE THOSE MARKETS WHERE TOBACCO
BOUGHT AND SOLD AT AUCTION OR THE PRODUCTS CUSTOMARILY MANUFACTURED
THEREFROM MOVE IN COMMERCE.  HE IS NOT TO DESIGNATE A MARKET UNLESS TWO
THIRDS OF THE GROWERS, VOTING AT A PRESCRIBED REFERENDUM, FAVOR IT.
THE ACT PROVIDES THAT AFTER PUBLIC NOTICE THAT A MARKET HAS BEEN SO
DESIGNATED, NO TOBACCO SHALL BE OFFERED FOR SALE AT AUCTION THEREON
UNTIL IT HAS BEEN INSPECTED AND CERTIFIED BY AN AUTHORIZED
REPRESENTATIVE OF THE SECRETARY ACCORDING TO THE ESTABLISHED
STANDARDS.  THERE IS A PROVISO THAT IN CASE COMPETENT INSPECTORS ARE
NOT AVAILABLE OR FOR OTHER REASONS THE SECRETARY IS UNABLE TO PROVIDE
FOR SUCH INSPECTION AND CERTIFICATION AT ALL AUCTION MARKETS WITHIN A
TYPE AREA, HE SHALL FIRST DESIGNATE THOSE MARKETS WHERE THE GREATEST
NUMBER OF GROWERS MAY BE SERVED WITH THE FACILITIES AVAILABLE.  SEC.
5. 

WAREHOUSEMEN MUST PROVIDE SPACE ON WAREHOUSE TICKETS OR OTHER TAGS OR
LABELS USED BY THEM FOR SHOWING THE GRADES AS DETERMINED BY AN
AUTHORIZED INSPECTOR.  SEC. 8.  THE SECRETARY IS AUTHORIZED TO PUBLISH
AND DISTRIBUTE, WITHOUT COST TO THE GROWER, TIMELY INFORMATION ON THE
"MARKET SUPPLY AND DEMAND, LOCATION, DISPOSITION, QUALITY, CONDITION,
AND MARKET PRICES."  SEC. 9.  VIOLATION OF THE REQUIREMENT OF
INSPECTION AND CERTIFICATION AT DESIGNATED MARKETS, IS MADE A
MISDEMEANOR PUNISHABLE BY A FINE OF NOT MORE THAN $1000 OR IMPRISONMENT
FOR NOT MORE THAN ONE YEAR OR BOTH.  SEC. 12. 

THE MARKET PRACTICES WHICH LED TO THIS ENACTMENT ARE DISCLOSED BY THE
RECORD.  THEY ARE DESCRIBED AT LENGTH IN THE REPORT OF THE COMMITTEE ON
AGRICULTURE OF THE HOUSE OF REPRESENTATIVES ON THE SUBMISSION OF THE
BILL.  FN5  THE GROWERS SORT THEIR TOBACCO FOR MARKET AS BEST THEY
CAN.  IT IS TIED IN BUNDLES OR "HANDS" AND BROUGHT TO THE AUCTION
WAREHOUSE WHERE IT IS PUT IN BASKETS, WEIGHED, AND PLACED IN ROWS ON
THE WAREHOUSE FLOOR WITH A TICKET ON EACH PILE.  THE WAREHOUSEMEN
AUCTION THE TOBACCO, ACTING AS REPRESENTATIVES OF THE GROWERS AND
RECEIVING FEES AT RATES FIXED BY THE STATE LAW.  THE AUCTION GOES
FORWARD WITH EXTREME RAPIDITY - ABOUT ONE BASKET EVERY TEN SECONDS -
THE AUCTIONEER PROCEEDING ALONG ONE SIDE OF A ROW AND THE BUYERS MOVING
WITH HIM.  THE AUCTION IS CONDUCTED WITH A TECHNICAL VOCABULARY
INTELLIGIBLE ONLY TO THE INITIATED, BIDS BEING MADE BY WELL-UNDERSTOOD
GESTURES.  THE SALE IS NOT COMPLETED UNTIL THE GROWER ACCEPTS THE BID;
HE MAY DECLINE THE BID AND TAKE HIS TOBACCO AWAY.  THE BIDDERS ARE
REPRESENTATIVES OF TOBACCO COMPANIES AND SPECULATORS WHO ARE EXPERTS IN
GRADES.  FN6  THE COMMITTEE REPORTED THAT "THE POSSESSION OF GRADE AND
PRICE INFORMATION BY THE BUYERS, AND THE LACK OF IT ON THE PART OF THE
GROWERS, PLACES THE GROWERS UNDER A SEVERE HANDICAP IN THE MARKETING OF
THEIR TOBACCO AND OPENS THE WAY TO ABUSES AND PRACTICES BY WHICH
FARMERS ARE VICTIMIZED.  ...  IT IS THE THOUGHT OF THE COMMITTEE THAT
IF THE PURCHASER NEEDS AN EXPERT IN GRADES IN ORDER TO PROTECT HIS
INTEREST IN THE SALE THE GROWERS SHOULD BE ACCORDED THE SAME
PROTECTION."  IT ALSO APPEARS FROM THE RECORD THAT BECAUSE OF THE SPEED
OF THE SALE FEW BUYERS HAVE THE OPPORTUNITY TO MAKE A SATISFACTORY
EXAMINATION OF THE TOBACCO AND CONSEQUENTLY MANY ERRORS ARE MADE,
ALTHOUGH ON THE AVERAGE THE BUYERS ARE NOT SUPPOSED TO SUFFER
SERIOUSLY.  THE EFFECT OF THE METHODS USED IS TO INTRODUCE AN UNUSUAL
DEGREE OF UNCERTAINTY IN THE PRICES WHICH A GROWER MAY RECEIVE FOR
TOBACCO OF ANY PARTICULAR GRADE. 

UNDER THE OPERATION OF THE ACT FEDERAL INSPECTORS EXAMINE THE TOBACCO
ABOUT AN HOUR BEFORE THE SALE.  THEY PULL SAMPLES FROM EACH PILE AND
PLACE TICKETS INDICATING THE GRADE.  EACH DAY THERE IS DISPLAYED IN THE
WAREHOUSE A REPORT INDICATING THE AVERAGE PRICE FOR THE GOVERNMENT
GRADES SOLD ON THE PREVIOUS DAY, AND WEEKLY REPORTS ARE ISSUED FOR THE
PRECEDING WEEK. 

THE SECRETARY PROMULGATED REGULATIONS TO BE EFFECTIVE JANUARY 2,
1936.  LATER, OFFICIAL STANDARD GRADES FOR FLUECURED TOBACCO WERE
PRESCRIBED.  THE SECRETARY DESIGNATED TWENTY-THREE MARKETS THROUGHOUT
THE COUNTRY FOR COMPULSORY INSPECTION AND GRADING.  IN NORTH CAROLINA
TOBACCO WAS MARKETED ON FORTY AUCTION MARKETS.  THREE OF THESE, AT
OXFORD, GOLDSBORO, AND FARMVILLE, WERE DESIGNATED.  FN7  IN VIEW OF THE
LACK OF EXPERTLY TRAINED INSPECTORS AND GRADERS, ALL MARKETS IN NORTH
CAROLINA COULD NOT BE DESIGNATED AND DEFENDANTS SAY THAT THE MARKETS
ABOVE NAMED WERE SELECTED BECAUSE IN PREVIOUS YEARS THE DEPARTMENT HAD
ESTABLISHED AT THESE PLACES VOLUNTARY INSPECTION OF TOBACCO UNDER THE
FARM PRODUCTS INSPECTION ACT  FN8  AND THE GROWERS WERE FAMILIAR WITH
THE BENEFITS ACCRUING FROM THE FEDERAL ACTION. 

IN RELATION TO OXFORD, THE MARKET HERE IN QUESTION, THE REQUIRED
REFERENDUM WAS HAD.  UPWARDS OF 8600 BALLOTS WERE DISTRIBUTED TO
GROWERS WHO HAD SOLD ON THAT MARKET DURING THE PREVIOUS SEASON; 1896
BALLOTS WERE RETURNED, OF WHICH 1782 WERE IN FAVOR OF THE DESIGNATION. 
THERE WERE 248 OTHER BALLOTS RETURNED, OF WHICH 96 PER CENT. WERE
FAVORABLE. 

PLAINTIFFS CONTEND (1) THAT THE TRANSACTION OF OFFERING TOBACCO FOR
SALE AT AUCTION ON THE WAREHOUSE FLOOR IS NOT A TRANSACTION IN
INTERSTATE COMMERCE AND HENCE IS NOT SUBJECT TO CONGRESSIONAL
REGULATION; (2) THAT THE ACT IS INVALID BECAUSE OF ITS DISCRIMINATORY
CHARACTER; (3) THAT THE ACT PROVIDES FOR AN UNCONSTITUTIONAL DELEGATION
OF LEGISLATIVE POWER; AND (4) THAT THE ACT VIOLATES THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT. 

THE CIRCUIT COURT OF APPEALS FOUND, AND THE RECORD SUPPORTS THE
FINDING, THAT THERE IS AN ACTUAL CONTROVERSY BETWEEN PLAINTIFFS AND
DEFENDANTS, ENTITLING PLAINTIFFS TO INVOKE THE DECLARATORY JUDGMENT
ACT.  SEE AETNA LIFE INSURANCE CO. V. HAWORTH, 300 U.S. 227, 240, 241. 

FIRST.  PLAINTIFFS URGE THAT TOBACCO "IS NOT INHERENTLY AN INTERSTATE
COMMODITY"; THAT THE AUCTION TRANSACTION IS NOT A SALE AS TITLE IS NOT
PASSED UNTIL THE GROWER ACCEPTS THE PRICE; THAT AFTER THE AUCTION THE
GROWER MAY, AND OFTEN DOES, REJECT THE BID AND HE MAY TAKE HIS TOBACCO
AWAY; THAT THE INSPECTION REQUIRED BY THE ACT IS DONE PRIOR TO THE
OFFERING FOR SALE; AND THAT UNTIL SALE AND DELIVERY TO THE PURCHASER
THE TOBACCO IS NOT IN INTERSTATE COMMERCE AND ITS CONTROL IS RESERVED
TO THE STATE.  THESE OBJECTIONS ARE UNTENABLE.  THE RECORD SHOWS THAT
THE SALES CONSUMMATED ON THE OXFORD AUCTION MARKET ARE PREDOMINANTLY
SALES IN INTERSTATE AND FOREIGN COMMERCE.  THE PRINCIPAL PURCHASERS ARE
FEW IN NUMBER AND IN THE MAIN ARE ENGAGED IN THE EXPORT TRADE OR IN THE
MANUFACTURE OF TOBACCO PRODUCTS IN OTHER STATES.  IT APPEARS THAT IN A
GIVEN WEEK, SHORTLY BEFORE THE BEGINNING OF THIS SUIT, APPROXIMATELY
2,000,000 POUNDS OF TOBACCO WERE SOLD ON THE OXFORD MARKET, ONLY 15.3
PER CENT. OF WHICH WERE DEFINITELY DESTINED FOR MANUFACTURE IN NORTH
CAROLINA.  ABOUT 14 PER CENT. WERE IN PART FOR MANUFACTURE IN NORTH
CAROLINA AND IN PART FOR OTHER STATES, AND ABOUT 62 PER CENT. MOVED
DIRECTLY INTO FOREIGN COMMERCE.  THE FACT THAT THE GROWERS ARE NOT
BOUND TO ACCEPT BIDS, AND IN CERTAIN INSTANCES REJECT THEM, DOES NOT
REMOVE THE AUCTION FROM ITS IMMEDIATE RELATION TO THE SALES THAT ARE
CONSUMMATED UPON THE OFFERS THAT THE GROWERS DO ACCEPT.  THE AUCTION IN
SUCH CASES IS MANIFESTLY A PART OF THE TRANSACTION OF SALE.  SO FAR AS
THE SALES ARE FOR SHIPMENT TO OTHER STATES OR TO FOREIGN COUNTRIES, IT
IS IDLE TO CONTEND THAT THEY ARE NOT SALES IN INTERSTATE OR FOREIGN
COMMERCE AND SUBJECT TO CONGRESSIONAL REGULATION.  WHERE GOODS ARE
PURCHASED IN ONE STATE FOR TRANSPORTATION TO ANOTHER THE COMMERCE
INCLUDES THE PURCHASE QUITE AS MUCH AS IT DOES THE TRANSPORTATION. 
SWIFT & CO. V. UNITED STATES, 196 U.S. 375, 398, 399; DAHNKE-WALKER
MILLING CO. V. BONDURANT, 257 U.S. 282, 290, 291; LEMKE V. FARMERS
GRAIN CO., 258 U.S. 50, 54; STAFFORD V. WALLACE, 258 U.S. 495, 519;
FLANAGAN V. FEDERAL COAL CO., 267 U.S. 222, 225; SHAFER V. FARMERS
GRAIN CO., 268 U.S. 189, 198; FOSTER-FOUNTAIN PACKING CO. V. HAYDEL,
278 U.S. 1, 10. 

THERE IS NO PERMISSIBLE CONSTITUTIONAL THEORY WHICH WOULD APPLY THIS
PRINCIPLE TO PURCHASES OF LIVESTOCK AS IN THE SWIFT AND STAFFORD CASES,
AND OF GRAIN AS IN THE LEMKE AND SHAFER CASES, AND DENY ITS APPLICATION
TO TOBACCO.  IN THE LEMKE CASE (SUPRA, AT PP. 60, 61), CONDEMNING THE
EFFORT OF A STATE TO CONTROL THE BUYING OF GRAIN FOR SHIPMENT TO OTHER
STATES, THE COURT REFERRED TO THE POWER OF CONGRESS TO PROVIDE ITS OWN
REGULATION FOR SUCH TRANSACTIONS, SAYING:  "IT IS ALLEGED THAT SUCH
LEGISLATION IS IN THE INTEREST OF THE GRAIN GROWERS AND ESSENTIAL TO
PROTECT THEM FROM FRAUDULENT PURCHASES, AND TO SECURE PAYMENT TO THEM
OF FAIR PRICES FOR THE GRAIN ACTUALLY SOLD.  THIS MAY BE TRUE, BUT
CONGRESS IS AMPLY AUTHORIZED TO PASS MEASURES TO PROTECT INTERSTATE
COMMERCE IF LEGISLATION OF THAT CHARACTER IS NEEDED."  AND AGAIN, IN
THE SHAFER CASE (SUPRA, AT PP. 188, 198), THE COURT SAID:  "THE RIGHT
TO BUY IT (GRAIN) FOR SHIPMENT, AND TO SHIP IT IN INTERSTATE COMMERCE
IS NOT A PRIVILEGE DERIVED FROM STATE LAWS AND WHICH THEY MAY FETTER
WITH CONDITIONS, BUT IS A COMMON RIGHT, THE REGULATION OF WHICH IS
COMMITTED TO CONGRESS AND DENIED TO THE STATES BY THE COMMERCE CLAUSE
OF THE CONSTITUTION." 

THE FACT THAT INTRASTATE AND INTERSTATE TRANSACTIONS ARE COMMINGLED
ON THE TOBACCO MARKET DOES NOT FRUSTRATE OR RESTRICT THE CONGRESSIONAL
POWER TO PROTECT AND CONTROL WHAT IS COMMITTED TO ITS OWN CARE.  AS WE
SAID IN THE SHREVEPORT CASE, 234 U.S. 342, 351, 352, WITH RESPECT TO
THE INTRASTATE RATES OF INTERSTATE CARRIERS - "WHEREVER THE INTERSTATE
AND INTRASTATE TRANSACTIONS OF CARRIERS ARE SO RELATED THAT THE
GOVERNMENT OF THE ONE INVOLVES THE CONTROL OF THE OTHER, IT IS
CONGRESS, AND NOT THE STATE, THAT IS ENTITLED TO PRESCRIBE THE FINAL
AND DOMINANT RULE, FOR OTHERWISE CONGRESS WOULD BE DENIED THE EXERCISE
OF ITS CONSTITUTIONAL AUTHORITY AND THE STATE, AND NOT THE NATION,
WOULD BE SUPREME WITHIN THE NATIONAL FIELD."  SEE, ALSO, MINNESOTA RATE
CASES, 230 U.S. 352, 399; WISCONSIN RAILROAD COMM'N V. CHICAGO, B. &
Q.R. CO., 257 U.S. 563, 588; STAFFORD V. WALLACE, SUPRA, AT P. 522. 
HERE, THE TRANSACTIONS ON THE TOBACCO MARKET WERE CONDUCTED
INDISCRIMINATELY AT VIRTUALLY THE SAME TIME, AND IN A MANNER WHICH MADE
IT NECESSARY, IF THE CONGRESSIONAL RULE WERE TO BE APPLIED, TO MAKE IT
GOVERN ALL THE TOBACCO THUS OFFERED FOR SALE. 

HAVING THIS AUTHORITY TO REGULATE THE SALES ON THE TOBACCO MARKET,
CONGRESS COULD PRESCRIBE THE CONDITIONS UNDER WHICH THE SALES SHOULD BE
MADE IN ORDER TO GIVE PROTECTION TO SELLERS OR PURCHASERS OR BOTH. 
CONGRESS IS NOT TO BE DENIED THE EXERCISE OF ITS CONSTITUTIONAL
AUTHORITY IN PRESCRIBING REGULATIONS MERELY BECAUSE THESE MAY HAVE THE
QUALITY OF POLICE REGULATIONS.  IT IS ON THAT PRINCIPLE THAT
MISBRANDING UNDER THE FOOD AND DRUGS ACT  FN9  EMBRACES FALSE OR
MISLEADING STATEMENTS AS TO THE INGREDIENTS OF COMMODITIES OR THE
EFFECTS OF THEIR USE.  SEE SEVEN CASES V. UNITED STATES, 239 U.S. 510. 
INSPECTION AND THE ESTABLISHMENT OF STANDARDS FOR COMMODITIES HAS BEEN
REGARDED FROM COLONIAL DAYS AS APPROPRIATE TO THE REGULATION OF TRADE,
AND THE AUTHORITY OF THE STATES TO ENACT INSPECTION LAWS IS RECOGNIZED
BY THE CONSTITUTION.  ART. I, SEC. 10, PAR. 2.  SEE TURNER V. MARYLAND,
107 U.S. 38, 51-54; PACIFIC STATES CO. V. WHITE, 296 U.S. 176, 181. 
BUT THE INSPECTION LAWS OF A STATE RELATING TO EXPORTS OR TO ARTICLES
PURCHASED FOR SHIPMENT TO OTHER STATES ARE SUBJECT TO THE PARAMOUNT
REGULATORY POWER OF CONGRESS.  TURNER V. MARYLAND, SUPRA, AT PP. 57,
58.  AND CONGRESS HAS LONG EXERCISED THIS AUTHORITY IN ENACTING LAWS
FOR INSPECTION AND THE ESTABLISHMENT OF STANDARDS IN RELATION TO
VARIOUS COMMODITIES INVOLVED IN TRANSACTIONS IN INTERSTATE OR FOREIGN
COMMERCE.  FN10  THE FACT THAT THE INSPECTION AND GRADING OF THE
TOBACCO TAKE PLACE BEFORE THE AUCTION DOES NOT DISSOCIATE THE FORMER
FROM THE LATTER, BUT ON THE CONTRARY IT IS OBVIOUS THAT THE INSPECTION
AND GRADING HAVE IMMEDIATE RELATION TO THE SALES IN INTERSTATE AND
FOREIGN COMMERCE WHICH CONGRESS THUS UNDERTAKES TO GOVERN. 

IN TOWNSEND V. YEOMANS, 301 U.S. 441, WE RECENTLY HAD UNDER
CONSIDERATION THE LEGISLATION OF GEORGIA PRESCRIBING MAXIMUM CHARGES
FOR THE SERVICES OF TOBACCO WAREHOUSEMEN WHO CONDUCTED THEIR BUSINESS
IN A MANNER SIMILAR TO THAT PREVAILING IN NORTH CAROLINA.  THERE, THE
WAREHOUSEMEN STRONGLY INSISTED THAT THEY WERE ENGAGED IN INTERSTATE AND
FOREIGN COMMERCE, AS THE TOBACCO SOLD ON THEIR FLOORS WAS DESTINED FOR
INTERSTATE OR FOREIGN SHIPMENT, AND HENCE THAT THE STATE WAS WITHOUT
POWER TO FIX THEIR FEES.  THEY INVOKED THE FEDERAL ACT IN SUPPORT OF
THEIR CONTENTION.  BUT WE FOUND NOTHING IN THE FEDERAL ACT WHICH
UNDERTOOK TO REGULATE THE CHARGES OF WAREHOUSEMEN AND HENCE WE
CONCLUDED THAT CONGRESS HAD RESTRICTED ITS REQUIREMENTS AND LEFT THE
STATE FREE TO DEAL WITH THE MATTERS NOT COVERED BY THE FEDERAL
LEGISLATION AND NOT INCONSISTENT THEREWITH.  THE AUTHORITY OF CONGRESS
TO ENACT THE TOBACCO INSPECTION ACT WAS NOT QUESTIONED. 

SECOND.  PLAINTIFFS COMPLAIN THAT THE ACT IS DISCRIMINATORY.  THEY
SAY THAT WAREHOUSEMEN ON OTHER TOBACCO MARKETS IN NORTH CAROLINA, DOING
THE SAME SORT OF BUSINESS AND COMPETING FOR PATRONAGE AMONG THE SAME
GROWERS, ARE AT LIBERTY TO CONDUCT SALES IN THEIR WAREHOUSES WITHOUT
INSPECTION AND CERTIFICATION. 

THE REASON FOR THE SELECTION IS SHOWN.  THE LACK OF A SUFFICIENT
NUMBER OF EXPERT INSPECTORS MADE IT IMPRACTICABLE TO SUPPLY INSPECTION
AND GRADING AT ALL TOBACCO AUCTION MARKETS.  HAVING THIS PRACTICAL
DIFFICULTY IN MIND, CONGRESS DIRECTED THAT WHEN FOR THAT REASON OR
OTHERS THE SECRETARY WAS UNABLE TO PROVIDE FOR INSPECTION AND
CERTIFICATION AT ALL SUCH MARKETS WITHIN A TYPE AREA, HE SHOULD FIRST
DESIGNATE THOSE WHERE THE GREATEST NUMBER OF GROWERS MAY BE SERVED WITH
THE FACILITIES THAT ARE AVAILABLE.  SEC. 5.  WE DO NOT DOUBT THAT SUCH
A SELECTION WAS WITHIN THE CONGRESSIONAL POWER. 

WE HAVE REPEATEDLY SAID THAT THE POWER GIVEN TO CONGRESS TO REGULATE
INTERSTATE AND FOREIGN COMMERCE IS "COMPLETE IN ITSELF, MAY BE
EXERCISED TO ITS UTMOST EXTENT, AND ACKNOWLEDGES NO LIMITATIONS, OTHER
THAN ARE PRESCRIBED IN THE CONSTITUTION."  GIBBONS V. OGDEN, 9 WHEAT. 
1, 196.  TO HOLD THAT CONGRESS IN ESTABLISHING ITS REGULATION IS
RESTRICTED TO THE MAKING OF UNIFORM RULES WOULD BE TO IMPOSE A
LIMITATION WHICH THE CONSTITUTION DOES NOT PRESCRIBE.  THERE IS NO
REQUIREMENT OF UNIFORMITY IN CONNECTION WITH THE COMMERCE POWER (ART.
I, SEC. 8, PAR. 3) SUCH AS THERE IS WITH RESPECT TO THE POWER TO LAY
DUTIES, IMPOSTS AND EXCISES (ART. I, SEC. 8, PAR. 1).  CLARK DISTILLING
CO. V. WESTERN MARYLAND R. CO., 242 U.S. 311, 327.  UNDOUBTEDLY, THE
EXERCISE OF THE COMMERCE POWER IS SUBJECT TO THE FIFTH AMENDMENT
(MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312, 336; UNITED
STATES V. CRESS, 243 U.S. 316, 326; LOUISVILLE BANK V. RADFORD, 295
U.S. 555, 589); BUT THAT AMENDMENT, UNLIKE THE FOURTEENTH, HAS NO EQUAL
PROTECTION CLAUSE.  LABELLE IRON WORKS V. UNITED STATES, 256 U.S. 377,
392; STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 584. 

IF IT BE ASSUMED THAT THERE MIGHT BE DISCRIMINATION OF SUCH AN
INJURIOUS CHARACTER AS TO BRING INTO OPERATION THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT, THAT IS A DIFFERENT MATTER FROM A CONTENTION
THAT MERE LACK OF UNIFORMITY IN THE EXERCISE OF THE COMMERCE POWER
RENDERS THE ACTION OF CONGRESS INVALID.  FOR THAT CONTENTION WE FIND NO
WARRANT.  IT IS OF THE ESSENCE OF THE PLENARY POWER CONFERRED THAT
CONGRESS MAY EXERCISE ITS DISCRETION IN THE USE OF THE POWER.  CONGRESS
MAY CHOOSE THE COMMODITIES AND PLACES TO WHICH ITS REGULATION SHALL
APPLY.  CONGRESS MAY CONSIDER AND WEIGH RELATIVE SITUATIONS AND NEEDS. 
CONGRESS IS NOT RESTRICTED BY ANY TECHNICAL REQUIREMENT BUT MAY MAKE
LIMITED APPLICATIONS AND RESORT TO TESTS SO THAT IT MAY HAVE THE
BENEFIT OF EXPERIENCE IN DECIDING UPON THE CONTINUANCE OR EXTENSION OF
A POLICY WHICH UNDER THE CONSTITUTION IT IS FREE TO ADOPT.  AS TO SUCH
CHOICES, THE QUESTION IS ONE OF WISDOM AND NOT OF POWER. 

THIRD.  THE ARGUMENT THAT THERE IS AN UNCONSTITUTIONAL DELEGATION OF
LEGISLATIVE POWER IS EQUALLY UNTENABLE.  THIS IS NOT A CASE WHERE
CONGRESS HAS ATTEMPTED TO ABDICATE, OR TO TRANSFER TO OTHERS, THE
ESSENTIAL LEGISLATIVE FUNCTIONS WITH WHICH IT IS VESTED BY THE
CONSTITUTION.  ART. I, SEC. 1; SEC. 8, PAR. 18.  SEE PANAMA REFINING
CO. V. RYAN, 293 U.S. 388, 421; SCHECHTER CORPORATION V. UNITED STATES,
295 U.S. 495, 529, 541, 542, 553.  WE HAVE ALWAYS RECOGNIZED THAT
LEGISLATION MUST OFTEN BE ADAPTED TO CONDITIONS INVOLVING DETAILS WITH
WHICH IT IS IMPRACTICABLE FOR THE LEGISLATURE TO DEAL DIRECTLY.  WE
HAVE SAID THAT - "THE CONSTITUTION HAS NEVER BEEN REGARDED AS DENYING
TO THE CONGRESS THE NECESSARY RESOURCES OF FLEXIBILITY AND
PRACTICALITY, WHICH WILL ENABLE IT TO PERFORM ITS FUNCTION IN LAYING
DOWN POLICIES AND ESTABLISHING STANDARDS, WHILE LEAVING TO SELECTED
INSTRUMENTALITIES THE MAKING OF SUBORDINATE RULES WITHIN PRESCRIBED
LIMITS AND THE DETERMINATION OF FACTS TO WHICH THE POLICY AS DECLARED
BY THE LEGISLATURE IS TO APPLY.  WITHOUT CAPACITY TO GIVE
AUTHORIZATIONS OF THAT SORT WE SHOULD HAVE THE ANOMALY OF A LEGISLATIVE
POWER WHICH IN MANY CIRCUMSTANCES CALLING FOR ITS EXERTION WOULD BE BUT
A FUTILITY."  PANAMA REFINING CO. V. RYAN, SUPRA.  IN SUCH CASES "A
GENERAL PROVISION MAY BE MADE, AND POWER GIVEN TO THOSE WHO ARE TO ACT
UNDER SUCH GENERAL PROVISIONS TO FILL UP THE DETAILS."  WAYMAN V.
SOUTHARD, 10 WHEAT.  1, 43.  WE THINK THAT THE TOBACCO INSPECTION ACT
BELONGS TO THAT CLASS. 

SO FAR AS GROWERS OF TOBACCO ARE CONCERNED, THE REQUIRED REFERENDUM
DOES NOT INVOLVE ANY DELEGATION OF LEGISLATIVE AUTHORITY.  CONGRESS HAS
MERELY PLACED A RESTRICTION UPON ITS OWN REGULATION BY WITHHOLDING ITS
OPERATION AS TO A GIVEN MARKET "UNLESS TWO-THIRDS OF THE GROWERS VOTING
FAVOR IT."  SIMILAR CONDITIONS ARE FREQUENTLY FOUND IN POLICE
REGULATIONS.  CUSACK CO. V. CHICAGO, 242 U.S. 526, 530.  THIS IS NOT A
CASE WHERE A GROUP OF PRODUCERS MAY MAKE THE LAW AND FORCE IT UPON A
MINORITY (SEE CARTER V. CARTER COAL CO., 298 U.S. 238, 310, 318) OR
WHERE A PROHIBITION OF AN INOFFENSIVE AND LEGITIMATE USE OF PROPERTY IS
IMPOSED NOT BY THE LEGISLATURE BUT BY OTHER PROPERTY OWNERS (SEE
WASHINGTON EX REL. SEATTLE TRUST CO. V. ROBERGE, 278 U.S. 116, 122). 
HERE IT IS CONGRESS THAT EXERCISES ITS LEGISLATIVE AUTHORITY IN MAKING
THE REGULATION AND IN PRESCRIBING THE CONDITIONS OF ITS APPLICATION. 
THE REQUIRED FAVORABLE VOTE UPON THE REFERENDUM IS ONE OF THESE
CONDITIONS.  THE DISTINCTION WAS POINTED OUT IN HAMPTON & CO. V. UNITED
STATES, 276 U.S. 394, 407, WHERE, IN SUSTAINING THE SO-CALLED "FLEXIBLE
TARIFF PROVISION" OF THE ACT OF SEPTEMBER 21, 1922,  FN11  AND THE
AUTHORITY IT CONFERRED UPON THE PRESIDENT, WE SAID:  "CONGRESS MAY FEEL
ITSELF UNABLE CONVENIENTLY TO DETERMINE EXACTLY WHEN ITS EXERCISE OF
THE LEGISLATIVE POWER SHOULD BECOME EFFECTIVE, BECAUSE DEPENDENT ON
FUTURE CONDITIONS, AND IT MAY LEAVE THE DETERMINATION OF SUCH TIME TO
THE DECISION OF AN EXECUTIVE, OR, AS OFTEN HAPPENS IN MATTERS OF STATE
LEGISLATION, IT MAY BE LEFT TO A POPULAR VOTE OF THE RESIDENTS OF A
DISTRICT TO BE EFFECTED BY THE LEGISLATION.  WHILE IN A SENSE ONE MAY
SAY THAT SUCH RESIDENTS ARE EXERCISING LEGISLATIVE POWER, IT IS NOT AN
EXACT STATEMENT, BECAUSE THE POWER HAS ALREADY BEEN EXERCISED
LEGISLATIVELY BY THE BODY VESTED WITH THAT POWER UNDER THE
CONSTITUTION, THE CONDITION OF ITS LEGISLATION GOING INTO EFFECT BEING
MADE DEPENDENT BY THE LEGISLATURE ON THE EXPRESSION OF THE VOTERS OF A
CERTAIN DISTRICT." 

NOR IS THERE AN UNCONSTITUTIONAL DELEGATION TO THE SECRETARY OF
AGRICULTURE.  CONGRESS HAS SET FORTH ITS POLICY FOR THE ESTABLISHMENT
OF STANDARDS FOR TOBACCO ACCORDING TO TYPE, GRADE, SIZE, CONDITION, AND
OTHER DETERMINABLE CHARACTERISTICS.  SECS. 3, 4.  THE PROVISION THAT
THE SECRETARY SHALL MAKE THE NECESSARY INVESTIGATIONS TO THAT END AND
FIX THE STANDARDS ACCORDING TO KIND AND QUALITY IS PLAINLY APPROPRIATE
AND CONFORMS TO FAMILIAR LEGISLATIVE PRACTICE AS SHOWN BY THE VARIOUS
STATUTES ALREADY MENTIONED N12.  IT IS NOT DIFFERENT IN PRINCIPLE FROM
THE AUTHORITY CONFERRED UPON THE SECRETARY OF THE TREASURY TO ESTABLISH
"'UNIFORM STANDARDS OF PURITY, QUALITY AND FITNESS FOR CONSUMPTION OF
ALL KINDS OF TEAS IMPORTED INTO THE UNITED STATES'" (BUTTFIELD V.
STRANAHAN, 192 U.S. 470, 494), OR FROM THAT CONFERRED UPON THE
INTERSTATE COMMERCE COMMISSION TO FIX STANDARDS FOR SAFETY DEVICES AND
EQUIPMENT (ST. LOUIS, I.M. & S. RY. CO. V. TAYLOR, 210 U.S. 281, 286,
287; NAPIER V. ATLANTIC COAST LINE, 272 U.S. 605, 612), OR FROM THAT
CONFERRED UPON THE SECRETARY OF WAR TO DETERMINE WHETHER BRIDGES AND
OTHER STRUCTURES CONSTITUTE UNREASONABLE OBSTRUCTIONS TO NAVIGATION AND
TO SPECIFY AND PRESCRIBE THE STRUCTURAL CHANGES THAT ARE REQUIRED
(UNION BRIDGE CO. V. UNITED STATES, 204 U.S. 364).    THE SECRETARY OF
AGRICULTURE IS AUTHORIZED TO DESIGNATE THOSE MARKETS WHERE TOBACCO
BOUGHT AND SOLD THEREON AT AUCTION MOVES IN COMMERCE.  SEC. 5.  THIS
CALLS FOR THE ASCERTAINMENT OF A FACT.  THE INTENTION OF CONGRESS IS
CLEAR THAT MARKETS THUS ASCERTAINED SHALL BE DESIGNATED SUBJECT TO THE
PRESCRIBED CONDITIONS AND AS RAPIDLY AS FACILITIES FOR INSPECTION ARE
AVAILABLE.  WE FIND NO UNFETTERED DISCRETION LODGED WITH THE
ADMINISTRATIVE OFFICER.  THE REQUIREMENT OF A REFERENDUM, AS ALREADY
NOTED, CALLS FOR THE EXPRESSION OF THE WISHES OF THE GROWERS AND THE
SECRETARY ACTS MERELY AS AN ADMINISTRATIVE AGENT IN CONDUCTING THE
REFERENDUM.  THE PROVISION FOR THE SUSPENSION OF A DESIGNATED MARKET
BECAUSE COMPETENT INSPECTORS ARE NOT AVAILABLE OR THE QUANTITY OF
TOBACCO IS NOT ENOUGH TO JUSTIFY THE COST OF THE SERVICE, SETS FORTH
DEFINITE AS WELL AS REASONABLE CRITERIA.  THE STATUTE ALSO LAYS DOWN A
PRACTICAL RULE FOR THE GUIDANCE OF THE SECRETARY IN THE SELECTION OF
MARKETS IN THE EVENT THAT BECAUSE OF LACK OF INSPECTORS OR OTHER
REASONS THE SECRETARY IS UNABLE TO FURNISH INSPECTION AND CERTIFICATION
AT ALL AUCTION MARKETS WITHIN A TYPE AREA.  IN THAT CASE HE IS FIRST TO
DESIGNATE THOSE AUCTION MARKETS "WHERE THE GREATEST NUMBER OF GROWERS
MAY BE SERVED WITH THE FACILITIES AVAILABLE TO HIM." 

THE STATUTE THUS DEFINES THE POLICY OF CONGRESS AND ESTABLISHES
STANDARDS WITHIN THE FRAMEWORK OF WHICH THE ADMINISTRATIVE AGENT IS TO
SUPPLY THE DETAILS.  THE PROVISIONS OF THE ACT ARE WELL WITHIN THE
PRINCIPLE OF PERMISSIBLE DELEGATION WHICH WE APPLIED IN RELATION TO THE
ADMINISTRATION OF THE FOREST RESERVE IN UNITED STATES V. GRIMAUD, 220
U.S. 506, 517; TO THE ALLOCATION OF LICENSES, WAVE LENGTHS, ETC. IN
FEDERAL RADIO COMM'N V. NELSON BROS. CO., 289 U.S. 266, 285; AND TO THE
EXERCISE OF THE POWERS CONFERRED UPON THE INTERSTATE COMMERCE
COMMISSION IN NEW YORK CENTRAL SECURITIES CORP. V. UNITED STATES, 287
U.S. 12, 24. 

NOR DOES IT APPEAR THAT, IN HIS USE OF HIS AUTHORITY IN THE INSTANT
CASE, THE SECRETARY HAS ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER. 
AS HE DID NOT HAVE AN ADEQUATE CORPS OF EXPERTS TO SUPPLY ALL THE NORTH
CAROLINA MARKETS, HE SELECTED THOSE WHERE THERE HAD BEEN VOLUNTARY
INSPECTION UNDER THE PRIOR ACT.  FN13  IT CANNOT BE SAID THAT THIS WAS
AN UNREASONABLE COURSE. 

FOURTH.  FINALLY, PLAINTIFFS INVOKE THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT.  PLAINTIFFS ARE WAREHOUSEMEN AND AUCTIONEERS ACTING AS
AGENTS FOR THE GROWERS WHO OWN THE TOBACCO AND PAY THEIR COMMISSIONS. 
PLAINTIFFS ARE THUS IN THE POSITION OF CONTESTING A REGULATION FOR THE
BENEFIT OF THEIR PRINCIPALS BECAUSE OF AN ALLEGED INTERFERENCE WITH
THEIR BUSINESS.  THE ACT DOES NOT AFFECT THEIR RATE OF CHARGES AND DOES
NOT DEPRIVE THEM OF ANY PROPERTY.  THE GROWERS, TO BE SURE, MAY TAKE
THEIR TOBACCO WHERE THEY PLEASE.  BUT EVEN IF IT WERE ASSUMED THAT THE
CONTENTION THAT THE MARKETS SUBJECT TO THE INSPECTION PROVISION WOULD
LOSE PATRONAGE COULD AFFORD GROUND FOR RESISTING THIS SORT OF
REGULATION, OTHERWISE VALID, THE CLAIM IN THIS INSTANCE RESTS MORE ON
CONJECTURE THAN ON PROOF.  WE AGREE WITH THE CIRCUIT COURT OF APPEALS
THAT AS TO THE ASSERTED DIFFERENCE OF PRICES OBTAINABLE ON INSPECTED
MARKETS, AS COMPARED WITH THOSE NOT INSPECTED, THE EVIDENCE HAS LITTLE
PROBATIVE VALUE AND THAT THE LOSS OF BUSINESS FROM GROWERS WHO DO NOT
DESIRE THE INSPECTION WOULD SEEM BY THE RECORD TO BE MORE THAN
COUNTERBALANCED BY THE GAIN OF BUSINESS FROM THOSE WHO DESIRE IT.  95
F.2D P. 861. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  DECLARATORY JUDGMENT ACT, 48 STAT. 955. 

FN2  49 STAT. 731; 7 U.S.C. SUPP. III, 511A-511 Q. 

FN3  19 F.SUPP.  211. 

FN4  SEE SEC. 1. 

FN5  REPORT, COMMITTEE OF AGRICULTURE, JUNE 5, 1935, TO ACCOMPANY
H.R. 8026. 

FN6  THE METHODS ARE SIMILAR TO THOSE FOLLOWED IN GEORGIA AS
DESCRIBED IN TOWNSEND V. YEOMANS, 301 U.S. 441, 445. 

FN7  A REFERENDUM WAS ALSO HAD AT SMITHFIELD WHICH RESULTED
UNFAVORABLY. 

FN8  7 U.S.C. 492. 

FN9  21 U.S.C. 10. 

FN10  SEE, E.G., UNITED STATES COTTON STANDARDS ACT, 7 U.S.C. 51-65;
FOOD AND DRUGS ACT, 21 U.S.C. 14A, 15, 20, 41, 71, 74, 89, 143; UNITED
STATES WAREHOUSE ACT, 7 U.S.C. 243; CERTIFICATION OF CONDITION, ETC. OF
AGRICULTURAL PRODUCTS SHIPPED IN INTERSTATE COMMERCE, 7 U.S.C. 414;
FARM PRODUCTS INSPECTION ACT, 7 U.S.C. 492; PERISHABLE AGRICULTURAL
COMMODITIES ACT, 7 U.S.C. 499N. 

FN11  42 STAT. 858, 941, 942. 

FN12  SEE NOTE 10. 

FN13  FARM PRODUCTS INSPECTION ACT, 7 U.S.C. 492. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER DISSENT. 
..END :






















BOWEN V. JOHNSTON, 306 U.S. 19 


NO. 359.  ARGUED JANUARY 11, 1939.  - DECIDED JANUARY 30, 1939.  - 97
F.2D 860, AFFIRMED. 


1.  THE UNITED STATES HAS CONSTITUTIONAL POWER TO ACQUIRE LAND WITHIN
THE EXTERIOR LIMITS OF A STATE FOR A NATIONAL PARK.  P. 23. 

2.  AS A GENERAL RULE REVIEW OF A DETERMINATION OF THE DISTRICT COURT
AFFIRMING ITS JURISDICTION INVOLVING IMPRISONMENT FOR CRIME IS BY
APPELLATE PROCEDURE AND NOT BY HABEAS CORPUS.  P. 23. 

THIS RULE IS NOT ONE DEFINING POWER TO GRANT THE WRIT BUT ONE WHICH
RELATES TO THE APPROPRIATE EXERCISE OF POWER.  P. 26. 

3.  HABEAS CORPUS MAY BE APPROPRIATELY GRANTED WHERE JURISDICTION IN
THE CRIMINAL CASE DEPENDED UPON A QUESTION OF LAW, THERE BEING NO
DISPUTE OF FACTS, AND WHERE THE NEED FOR THE INQUIRY IS MADE APPARENT
BY EXCEPTIONAL CIRCUMSTANCES.  P. 27. 

SUCH EXCEPTIONAL CIRCUMSTANCES EXISTED IN THIS CASE, WHICH INVOLVED A
SENTENCE BY THE DISTRICT COURT FOR MURDER COMMITTED IN THE CHICKAMAUGA
AND CHATTANOOGA NATIONAL PARK, IN GEORGIA.  THERE APPEARED TO BE
UNCERTAINTY AND CONFUSION AS TO WHETHER OFFENSES WITHIN THE PARK WERE
TRIABLE BY THE STATE OR THE FEDERAL COURTS.  IT WAS REPRESENTED THAT
MURDER CASES HAD BEEN TRIED IN EACH.  IT DID NOT APPEAR OF RECORD THAT
THE DISTRICT COURT HAD CONSIDERED THE QUESTION OF JURISDICTION.  THERE
HAD BEEN NO APPEAL, AND IT WAS CONTENDED THAT A READING OF THE GEORGIA
STATUTE OF CONSENT AND CESSION WOULD SHOW THAT THE UNITED STATES HAD
NOT ACQUIRED JURISDICTION SO AS TO BRING THE OFFENSE CHARGED IN THE
INDICTMENT WITHIN THE CLASS OF OFFENSES COGNIZABLE IN THE DISTRICT
COURT. 

4.  IN HABEAS CORPUS BY ONE IMPRISONED FOR A MURDER COMMITTED IN THE
CHICKAMAUGA AND CHATTANOOGA NATIONAL PARK, IN GEORGIA, THE SOLE
QUESTION WAS WHETHER THE UNITED STATES HAD EXCLUSIVE JURISDICTION OVER
LAND IN THE PARK, IN VIRTUE OF HAVING ACQUIRED IT BY CONSENT OF OR
CESSION FROM THE GEORGIA LEGISLATURE.  HELD: 

(1)  THE FEDERAL COURTS TAKE JUDICIAL NOTICE OF THE GEORGIA
STATUTES.  P. 23. 

(2)  IF THESE STATUTES DID NOT GIVE TO THE UNITED STATES EXCLUSIVE
JURISDICTION OVER THE PARK, THE INDICTMENT DID NOT CHARGE A CRIME
COGNIZABLE UNDER THE AUTHORITY OF THE UNITED STATES.  ID. 

(3)  ALTHOUGH IN EARLIER ACTS CONSENTING TO ACQUISITIONS AND CEDING
JURISDICTION OF LAND FOR THE PARK, CRIMINAL JURISDICTION WAS
SPECIFICALLY RESERVED BY THE STATE, EXCLUSIVE JURISDICTION WAS CEDED BY
THE GENERAL ACT OF 1927, PURPORTING TO CEDE EXCLUSIVE JURISDICTION TO
THE UNITED STATES OVER ANY LAND "WHICH HAS BEEN OR MAY HEREAFTER BE
ACQUIRED FOR CUSTOM-HOUSES, POST-OFFICES, ARSENALS, OTHER PUBLIC
BUILDINGS WHATEVER, OR FOR ANY OTHER PURPOSES OF GOVERNMENT," AND WHICH
RESERVED THE RIGHT TO SERVE CIVIL AND CRIMINAL PROCESSES BUT NOT
CRIMINAL JURISDICTION OVER OFFENSES WITHIN THE CEDED TERRITORY.  P.
28. 

(4)  THIS CONCLUSION HAS SUPPORT IN ADMINISTRATIVE CONSTRUCTION.  P.
29. 

REFERRING TO AN OPINION OF THE JUDGE ADVOCATE GENERAL, JULY 14, 1930,
WHEN THE PARK WAS IN CHARGE OF THE WAR DEPARTMENT. 

BOWEN V. JOHNSTON, WARDEN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 305 U.S. 579, TO REVIEW AFFIRMANCE BELOW OF AN ORDER OF
THE DISTRICT COURT DENYING A PETITION FOR A WRIT OF HABEAS CORPUS. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED, IN 1933, IN THE DISTRICT COURT OF THE
NORTHERN DISTRICT OF GEORGIA, OF MURDER COMMITTED IN 1930 ON THE
GOVERNMENT RESERVATION KNOWN AS THE CHICKAMAUGA AND CHATTANOOGA
NATIONAL PARK WITHIN THE EXTERIOR LIMITS OF THE STATE OF GEORGIA.  HE
WAS SENTENCED TO IMPRISONMENT FOR LIFE AND IS CONFINED IN THE PRISON AT
ALCATRAZ, CALIFORNIA. 

IN 1937, HE PRESENTED A PETITION FOR A WRIT OF HABEAS CORPUS TO THE
DISTRICT JUDGE OF THE NORTHERN DISTRICT OF CALIFORNIA ALLEGING THAT THE
INDICTMENT WAS VOID, AND NO LEGAL JUDGMENT COULD BE BASED THEREON, AS
IT FAILED TO SHOW JURISDICTION OVER THE PERSON AND SUBJECT MATTER; THAT
THE UNITED STATES DID NOT HAVE EXCLUSIVE JURISDICTION OVER THE PARK. 
FN1  HE ALSO ALLEGED THAT ON HIS TRIAL THE COURT DID NOT HAVE THE
EVIDENCE TAKEN DOWN AND PRESERVED SO THAT HE MIGHT APPEAL, AND THAT,
UPON THIS GROUND AND OTHERS, HE HAD BEEN DEPRIVED OF HIS LIBERTY
WITHOUT DUE PROCESS OF LAW.  A COPY OF THE INDICTMENT WAS ANNEXED TO
THE PETITION.  PURSUANT TO AN ORDER TO SHOW CAUSE, THE WARDEN MADE
RETURN SHOWING THE JUDGMENT AND THE RECORD OF COMMITMENT.  ON THE
RETURN DAY THERE WAS NO APPEARANCE OF PETITIONER'S ATTORNEYS, AND NO
EVIDENCE, APART FROM THE RETURN AND THE ATTACHED EXHIBITS, WAS
OFFERED.  THE PETITION WAS SUBMITTED AND LATER WAS DENIED WITHOUT
OPINION.  ON APPEAL, THE ORDER WAS AFFIRMED.  97 F.2D 860. 

THE PRINCIPAL CONTENTION BEFORE THE CIRCUIT COURT OF APPEALS WAS THAT
THE UNITED STATES DID NOT HAVE EXCLUSIVE JURISDICTION OVER THE PARK AND
HENCE THAT THE DISTRICT COURT IN GEORGIA DID NOT HAVE JURISDICTION TO
TRY THE PETITIONER.  THE COURT, TAKING THE VIEW THAT THE UNITED STATES
COULD CONSTITUTIONALLY ACQUIRE JURISDICTION OVER THE PARK (COLLINS V.
YOSEMITE PARK CO., 304 U.S. 518), HELD THAT THE QUESTION WHETHER THE
UNITED STATES DID ACQUIRE SUCH JURISDICTION COULD NOT BE RAISED ON
HABEAS CORPUS.  IN VIEW OF THE IMPORTANCE OF THE QUESTION THUS
PRESENTED, WE GRANTED CERTIORARI.  305 U.S. 579. 

FIRST.  JURISDICTION IS CONFERRED UPON THE DISTRICT COURTS "OF ALL
CRIMES AND OFFENSES COGNIZABLE UNDER THE AUTHORITY OF THE UNITED
STATES."  JUD.  CODE, SEC. 24; 28 U.S.C. 41(2). 

CRIMES ARE THUS COGNIZABLE - 

"WHEN COMMITTED WITHIN OR ON ANY LANDS RESERVED OR ACQUIRED FOR THE
EXCLUSIVE USE OF THE UNITED STATES, AND UNDER THE EXCLUSIVE
JURISDICTION THEREOF, OR ANY PLACE PURCHASED OR OTHERWISE ACQUIRED BY
THE UNITED STATES BY CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH
THE SAME SHALL BE, FOR THE ERECTION OF A FORT, MAGAZINE, ARSENAL,
DOCKYARD, OR OTHER NEEDFUL BUILDING."  CRIM. CODE, SEC. 272; 18 U.S.C.
451, THIRD. 

THE LAST CLAUSE COVERS CASES WHERE EXCLUSIVE JURISDICTION IS ACQUIRED
BY THE UNITED STATES PURSUANT TO ARTICLE I, SEC. 8, PARAGRAPH 17, OF
THE CONSTITUTION. 

IN THE INSTANT CASE, NO QUESTION OF FACT WAS PRESENTED WITH RESPECT TO
THE PLACE WHERE THE CRIME WAS COMMITTED.  THE INDICTMENT SPECIFIED THE
PLACE, THAT IS,  - "A CERTAIN PLACE AND ON CERTAIN LANDS RESERVED AND
ACQUIRED FOR THE EXCLUSIVE USE OF THE UNITED STATES AND UNDER EXCLUSIVE
JURISDICTION THEREOF, AND ACQUIRED BY THE UNITED STATES BY CONSENT OF
THE LEGISLATURE OF THE STATE OF GEORGIA, TO WIT:  CHICKAMAUGA AND
CHATTANOOGA NATIONAL PARK, SOMETIMES KNOWN AS CHICKAMAUGA AND
CHATTANOOGA NATIONAL MILITARY PARK, IN SAID STATE OF GEORGIA." 

THE SOLE QUESTION WAS WHETHER THIS PARK WAS WITHIN THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES.  THERE IS NO QUESTION THAT THE
UNITED STATES HAD THE CONSTITUTIONAL POWER TO ACQUIRE THE TERRITORY FOR
THE PURPOSE OF A NATIONAL PARK AND THAT IT DID ACQUIRE IT.  WHETHER OR
NOT THE NATIONAL GOVERNMENT ACQUIRED EXCLUSIVE JURISDICTION OVER THE
LANDS WITHIN THE PARK OR THE STATE RESERVED, AS IT COULD, JURISDICTION
OVER THE CRIMES THERE COMMITTED, DEPENDED UPON THE TERMS OF THE CONSENT
OR CESSION GIVEN BY THE LEGISLATURE OF GEORGIA.  COLLINS V. YOSEMITE
PARK CO., SUPRA, PP. 529, 530.  SEE, ALSO, JAMES V. DRAVO CONTRACTING
CO., 302 U.S. 134, 146-148.  THE FEDERAL COURTS TAKE JUDICIAL NOTICE OF
THE GEORGIA STATUTES.  OWINGS V. HULL, 9 PET. 607; LAMAR V. MICOU, 114
U.S. 218, 223.  IF THESE STATUTES DID NOT GIVE TO THE UNITED STATES
EXCLUSIVE JURISDICTION OVER THE PARK, THE INDICTMENT DID NOT CHARGE A
CRIME COGNIZABLE UNDER THE AUTHORITY OF THE UNITED STATES. 

SECOND.  WHERE THE DISTRICT COURT HAS JURISDICTION OF THE PERSON AND
THE SUBJECT MATTER IN A CRIMINAL PROSECUTION, THE WRIT OF HABEAS CORPUS
CANNOT BE USED AS A WRIT OF ERROR.  THE JUDGMENT OF CONVICTION IS NOT
SUBJECT TO COLLATERAL ATTACK.  EX PARTE WATKINS, 3 PET. 193, 203; EX
PARTE PARKS, 93 U.S. 18, 23; HARLAN V. MCGOURIN, 218 U.S. 442, 448;
MCMICKING V. SCHIELDS, 238 U.S. 99, 107; RIDDLE V. DYCHE, 262 U.S. 333,
335; CRAIG V. HECHT, 263 U.S. 255, 277.  THE SCOPE OF REVIEW ON HABEAS
CORPUS IS LIMITED TO THE EXAMINATION OF THE JURISDICTION OF THE COURT
WHOSE JUDGMENT OF CONVICTION IS CHALLENGED.  EX PARTE SIEBOLD, 100 U.S.
371, 375; EX PARTE BIGELOW, 113 U.S. 328, 331; MATTER OF GREGORY, 219
U.S. 210, 213; GLASGOW V. MOYER, 225 U.S. 420, 429; KNEWEL V. EGAN, 268
U.S. 442, 445.  BUT IF IT BE FOUND THAT THE COURT HAD NO JURISDICTION
TO TRY THE PETITIONER, OR THAT IN ITS PROCEEDINGS HIS CONSTITUTIONAL
RIGHTS HAVE BEEN DENIED, THE REMEDY OF HABEAS CORPUS IS AVAILABLE.  EX
PARTE LANGE, 18 WALL.  163, 178; EX PARTE CROW DOG, 109 U.S. 556, 572;
IN RE SNOW, 120 U.S. 274, 285; IN RE COY, 127 U.S. 731, 758; HANS
NIELSEN, PETITIONER, 131 U.S. 176, 182; IN RE BONNER, 151 U.S. 242,
257; MOORE V. DEMPSEY, 261 U.S. 86, 91; JOHNSON V. ZERBST, 304 U.S.
458, 467. 

IN APPLYING THIS PRINCIPLE, WE HAVE SAID THAT THE COURT "HAS
JURISDICTION TO RENDER A PARTICULAR JUDGMENT ONLY WHEN THE OFFENCE
CHARGED IS WITHIN THE CLASS OF OFFENCES PLACED BY THE LAW UNDER ITS
JURISDICTION."  IN RE BONNER, SUPRA. AS IT IS THE DUTY OF THE DISTRICT
COURT, WHEN THE PROSECUTION IS BROUGHT BEFORE IT, TO EXAMINE THE CHARGE
AND ASCERTAIN WHETHER THE OFFENSE IS OF THAT CLASS, THE DISTRICT COURT
IS THUS EMPOWERED TO PASS UPON ITS OWN JURISDICTION.  THIS, UNDER THE
APPLICABLE STATUTE, MAY REQUIRE CONSIDERATION OF THE PLACE WHERE THE
OFFENSE IS ALLEGED TO HAVE BEEN COMMITTED.  THE ANSWER TO THAT QUESTION
MAY REQUIRE THE EXAMINATION AND DETERMINATION OF QUESTIONS OF FACT AND
LAW AND THAT DETERMINATION MAY BE THE APPROPRIATE SUBJECT OF APPELLATE
REVIEW.  THUS IF, CONSTRUING A STATUTE, A QUESTION OF LAW IS DETERMINED
AGAINST THE GOVERNMENT ON DEMURRER TO THE INDICTMENT, THE CASE MAY FALL
WITHIN THE PROVISIONS OF THE CRIMINAL APPEALS ACT.  UNITED STATES V.
SUTTON, 215 U.S. 291; UNITED STATES V. SOLDANA, 246 U.S. 530.  OR, IF
DECIDED AGAINST THE ACCUSED, THE QUESTION MAY BE REVIEWED BY THE
CIRCUIT COURT OF APPEALS ON APPEAL FROM THE JUDGMENT OF CONVICTION.  IN
CONSIDERING THE DISTRIBUTION OF APPELLATE JURISDICTION UNDER THE FORMER
STATUTE  FN2  PERMITTING A DIRECT WRIT OF ERROR FROM THIS COURT TO THE
DISTRICT COURT, WHEN THE QUESTION OF THE JURISDICTION OF THE LATTER WAS
THE ONLY QUESTION INVOLVED, WE DREW THE DISTINCTION BETWEEN THE
QUESTION OF THE JURISDICTION OF THE DISTRICT COURT IN THAT ASPECT AND
THAT OF THE JURISDICTION OF THE UNITED STATES.  LOUIE V. UNITED STATES,
254 U.S. 548, 549, 550.  THERE, ON A CHARGE OF MURDER COMMITTED WITHIN
THE LIMITS OF AN INDIAN RESERVATION, THE DEFENDANT CONTENDED THAT
BEFORE THE TIME OF THE ALLEGED CRIME HE HAD BEEN DECLARED COMPETENT AND
THAT THE LAND ON WHICH THE CRIME WAS ALLEGED TO HAVE BEEN COMMITTED
"HAD BEEN ALLOTTED AND DEEDED TO HIM IN FEE SIMPLE."  "THAT THE
DISTRICT COURT  ...  HAD JURISDICTION TO DETERMINE WHETHER THE LOCUS IN
QUO WAS A PART OF THE RESERVATION WAS NOT QUESTIONED" AND THE JUDGMENT
WAS HELD TO BE REVIEWABLE BY THE CIRCUIT COURT OF APPEALS AND NOT
DIRECTLY BY THIS COURT.  SEE, ALSO, PRONOVOST V. UNITED STATES, 232
U.S. 487; POTHIER V. RODMAN, 261 U.S. 307, 311. 

WHERE ON THE FACE OF THE RECORD THE DISTRICT COURT HAS JURISDICTION
OF THE OFFENSE AND OF THE DEFENDANT AND THE DEFENDANT CONTENDS THAT ON
THE FACTS SHOWN THE CRIME WAS NOT COMMITTED AT A PLACE WITHIN THE
JURISDICTION OF THE UNITED STATES, WE HAVE HELD THAT THE JUDGMENT IS
ONE FOR REVIEW BY THE CIRCUIT COURT OF APPEALS IN ERROR PROCEEDINGS AND
THAT THE WRIT OF HABEAS CORPUS IS PROPERLY REFUSED.  TOY TOY V.
HOPKINS, 212 U.S. 542, 549.  AND, ON REMOVAL PROCEEDINGS, WE HAVE
OBSERVED THAT IN A CASE WHERE THE QUESTION "WHETHER THE LOCUS OF THE
ALLEGED CRIME WAS WITHIN THE EXCLUSIVE JURISDICTION OF THE UNITED
STATES DEMANDS CONSIDERATION OF MANY FACTS AND SERIOUSLY CONTROVERTED
QUESTIONS OF LAW," THESE MATTERS "MUST BE DETERMINED BY THE COURT WHERE
THE INDICTMENT WAS FOUND" AND THAT "THE REGULAR COURSE MAY NOT BE
ANTICIPATED BY ALLEGING WANT OF JURISDICTION AND DEMANDING A RULING
THEREON IN A HABEAS CORPUS PROCEEDING."  RODMAN V. POTHIER, 264 U.S.
399, 402.  SEE, ALSO, HENRY V. HENKEL, 235 U.S. 219, 229.  ON THE SAME
PRINCIPLE, IN WALSH V. ARCHER, 73 F.2D 197, WHERE THE INDICTMENT
CHARGED MURDER COMMITTED ON BOARD A VESSEL ON THE HIGH SEAS, THE COURT
AFFIRMED AN ORDER DISMISSING A PETITION FOR HABEAS CORPUS, IT BEING
CONTENDED THAT THE VESSEL AT THE TIME OF THE COMMISSION OF THE CRIME
WAS WITHIN THE STATE OF CALIFORNIA AND UNDER ITS JURISDICTION, SAYING -
"WHETHER THE LOCATION OF THE ALLEGED CRIME WAS UPON THE HIGH SEAS AND
EXCLUSIVELY WITHIN THE JURISDICTION OF THE UNITED STATES REQUIRED
CONSIDERATION OF MANY FACTS AND SERIOUSLY CONTROVERTED QUESTIONS OF
LAW, INCLUDING THE ALLEGED ERROR INVOLVING THE JURISDICTION OF THE
COURT."  ID., P. 199. 

BUT THE RULE, OFTEN BROADLY STATED, IS NOT TO BE TAKEN TO MEAN THAT
THE MERE FACT THAT THE COURT WHICH TRIED THE PETITIONER HAD ASSUMED
JURISDICTION, NECESSARILY DEPRIVES ANOTHER COURT OF AUTHORITY TO GRANT
A WRIT OF HABEAS CORPUS.  AS THE COURT SAID IN THE CASE OF COY, SUPRA,
PP. 757, 758, THE BROAD STATEMENT OF THE RULE WAS CERTAINLY NOT
INTENDED TO GO SO FAR AS TO MEAN, FOR EXAMPLE, "THAT BECAUSE A FEDERAL
COURT TRIES A PRISONER FOR AN ORDINARY COMMON LAW OFFENCE, AS BURGLARY,
ASSAULT AND BATTERY, OR LARCENY, WITH NO AVERMENT OR PROOF OF ANY
OFFENCE AGAINST THE UNITED STATES, OR ANY CONNECTION WITH A STATUTE OF
THE UNITED STATES, AND PUNISHES HIM BY IMPRISONMENT, HE CANNOT BE
RELEASED BY HABEAS CORPUS BECAUSE THE COURT WHICH TRIED HIM HAD ASSUMED
JURISDICTION."  DESPITE THE ACTION OF THE TRIAL COURT, THE ABSENCE OF
JURISDICTION MAY APPEAR ON THE FACE OF THE RECORD (SEE IN RE SNOW,
SUPRA; HANS NIELSEN, PETITIONER, SUPRA, P. 183) AND THE REMEDY OF
HABEAS CORPUS MAY BE NEEDED TO RELEASE THE PRISONER FROM A PUNISHMENT
IMPOSED BY A COURT MANIFESTLY WITHOUT JURISDICTION TO PASS JUDGMENT. 

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, SUPRA.  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.  IT HAS SPECIAL
APPLICATION WHERE THERE ARE ESSENTIAL QUESTIONS OF FACT DETERMINABLE BY
THE TRIAL COURT.  RODMAN V. POTHIER, SUPRA.  IT IS APPLICABLE ALSO TO
THE DETERMINATION IN ORDINARY CASES OF DISPUTED MATTERS OF LAW WHETHER
THEY RELATE TO THE SUFFICIENCY OF THE INDICTMENT OR TO THE VALIDITY OF
THE STATUTE ON WHICH THE CHARGE IS BASED.  ID.; GLASGOW V. MOYER,
SUPRA; HENRY V. HENKEL, SUPRA.  BUT IT IS EQUALLY TRUE THAT THE RULE IS
NOT SO INFLEXIBLE THAT IT MAY NOT YIELD TO EXCEPTIONAL CIRCUMSTANCES
WHERE THE NEED FOR THE REMEDY AFFORDED BY THE WRIT OF HABEAS CORPUS IS
APPARENT.  AMONG THESE EXCEPTIONAL CIRCUMSTANCES ARE THOSE INDICATING A
CONFLICT BETWEEN STATE AND FEDERAL AUTHORITIES ON A QUESTION OF LAW
INVOLVING CONCERNS OF LARGE IMPORTANCE AFFECTING THEIR RESPECTIVE
JURISDICTIONS.  IN RE LINCOLN, 202 U.S. 178, 182, 183; HENRY V. HENKEL,
SUPRA, PP. 228, 229. 

WE THINK THAT THERE ARE SUCH EXCEPTIONAL CIRCUMSTANCES IN THIS
INSTANCE.  THERE APPEAR TO BE UNCERTAINTY AND CONFUSION WITH RESPECT TO
THE QUESTION WHETHER OFFENSES WITHIN THE CHICKAMAUGA AND CHATTANOOGA
NATIONAL PARK ARE TRIABLE IN THE STATE OR FEDERAL COURTS.  IT IS
REPRESENTED THAT MURDER CASES HAVE BEEN TRIED IN THE STATE COURT AS
WELL AS IN THE FEDERAL COURT.  IF THE DISTRICT COURT WHICH TRIED
PETITIONER GAVE CONSIDERATION TO THE QUESTION, IT MADE NO COMMENT ON
THE SUBJECT, AS IT RENDERED NO OPINION AND APPARENTLY MADE NO RECORD OF
ITS PROCEEDINGS ASIDE FROM THE INDICTMENT AND JUDGMENT.  THE MATTER
STOOD WITHOUT ANY JUDICIAL EXPLICATION AND WITHOUT APPEAL.  IF, AS
CONTENDED, THERE BEING NO DISPUTED QUESTIONS OF FACT, A READING OF THE
GEORGIA STATUTE OF CONSENT AND CESSION WOULD SHOW THAT THE UNITED
STATES HAD NOT ACQUIRED JURISDICTION SO AS TO BRING THE OFFENSE CHARGED
IN THE INDICTMENT WITHIN THE CLASS OF OFFENSES COGNIZABLE IN THE
DISTRICT COURT, WE THINK THAT IT WAS WITHIN THE PROVINCE OF THE COURT
TO WHICH THE APPLICATION FOR HABEAS CORPUS WAS MADE TO EXAMINE THE
QUESTION AND TO ISSUE THE WRIT IN CASE THE CLAIM OF WANT OF
JURISDICTION IN THE TRIAL COURT WAS FOUND TO BE A VALID ONE.    THIRD.
OUR EXAMINATION OF THE GEORGIA STATUTES LEADS TO THE CONCLUSION THAT IT
IS UNNECESSARY TO REMAND THE CASE FOR THE DETERMINATION OF THE DISTRICT
COURT BUT THAT IT MAY BE, AND SHOULD BE, DISPOSED OF AT ONCE BY OUR
DECISION.    THE LANDS WHICH ARE EMBRACED WITHIN THE CHICKAMAUGA AND
CHATTANOOGA NATIONAL PARK, AND LIE WITHIN THE EXTERIOR LIMITS OF THE
STATE OF GEORGIA, WERE ACQUIRED UNDER THE PROVISIONS OF THE ACT OF
CONGRESS APPROVED AUGUST 19, 1890, AND SUPPLEMENTARY LEGISLATION.  26
STAT. 333.  THE ACT PROVIDED FOR THE ESTABLISHMENT OF THE PARK "UPON
THE CEDING OF JURISDICTION BY THE LEGISLATURE OF THE STATE OF
GEORGIA."  THE LANDS WERE ACQUIRED IN 1891 AND SUBSEQUENT YEARS.  SOME
WERE ACQUIRED BY PURCHASE AND SOME BY CONDEMNATION.  CONSENT WAS GIVEN
AND JURISDICTION WAS CEDED TO THE UNITED STATES BY AN ACT OF THE
LEGISLATURE OF GEORGIA APPROVED NOVEMBER 19, 1890.  GEORGIA LAWS, 1890
91, VOL. 1, P. 199.  THE ACT SPECIFICALLY RESERVED TO THE STATE OF
GEORGIA CRIMINAL JURISDICTION IN THE CEDED TERRITORY BY THE FOLLOWING
PROVISO:  "PROVIDED, THAT THIS CESSION IS UPON THE EXPRESS CONDITION
THAT THE STATE OF GEORGIA SHALL SO FAR RETAIN A CONCURRENT JURISDICTION
WITH THE UNITED STATES OVER SAID LANDS AND ROADS AS THAT ALL CIVIL AND
CRIMINAL PROCESS ISSUED UNDER THE AUTHORITY OF THIS STATE MAY BE
EXECUTED THEREON IN LIKE MANNER AS IF THIS ACT HAD NOT BEEN PASSED; AND
UPON THE FURTHER EXPRESS CONDITIONS, THAT THE STATE SHALL RETAIN ITS
CIVIL AND CRIMINAL JURISDICTION OVER PERSONS AND CITIZENS IN SAID CEDED
TERRITORY AS OVER OTHER PERSONS AND CITIZENS IN THE STATE, AND THE
PROPERTY OF SAID CITIZENS AND RESIDENTS THEREON, EXCEPT LAND AND SUCH
OTHER PROPERTY AS THE GENERAL GOVERNMENT MAY DESIRE FOR ITS USE, AND
THAT THE PROPERTY BELONGING TO PERSONS RESIDING WITHIN SAID CEDED
TERRITORY SHALL BE LIABLE TO STATE AND COUNTY TAXES, THE SAME AS IF
THEY RESIDED ELSEWHERE, AND THAT CITIZENS OF THIS STATE IN SAID CEDED
TERRITORY SHALL RETAIN ALL RIGHTS OF STATE SUFFRAGE AND CITIZENSHIP
...  ;" 

LATER ACTS OF CESSION CONTAINED A SIMILAR RESERVATION AS TO CRIMINAL
JURISDICTION.  FN3 

IF THE MATTER RESTED WITH THESE STATUTES, THERE WOULD BE NO ROOM FOR
DOUBT THAT JURISDICTION TO PUNISH FOR CRIMES COMMITTED ON THE LANDS
WITHIN THE PARK REMAINED WITH THE STATE.  SEE JAMES V. DRAVO
CONTRACTING CO., SUPRA.  BUT IN 1927, ANOTHER CESSION ACT OF A GENERAL
CHARACTER WAS PASSED BY THE STATE LEGISLATURE, PURPORTING TO CEDE
EXCLUSIVE JURISDICTION TO THE UNITED STATES OVER ANY LAND "WHICH HAS
BEEN OR MAY HEREAFTER BE ACQUIRED FOR CUSTOM-HOUSES, POST-OFFICES,
ARSENALS, OTHER PUBLIC BUILDINGS WHATEVER, OR FOR ANY OTHER PURPOSES OF
GOVERNMENT."  GEORGIA LAWS, 1927, P. 352.  THIS ACT RESERVED THE RIGHT
TO SERVE CIVIL AND CRIMINAL PROCESSES BUT NOT CRIMINAL JURISDICTION
OVER OFFENSES WITHIN THE CEDED TERRITORY. 

THE ARGUMENT IS STRONGLY PRESSED THAT AS THIS IS A GENERAL ACT AND
THERE IS NO EXPRESS REPEAL OF, OR SPECIFIC REFERENCE TO, THE EARLIER
SPECIAL ACTS RELATING TO THE LANDS WITHIN THE PARK, IT SHOULD NOT BE
REGARDED AS YIELDING THE JURISDICTION WHICH THE EARLIER ACTS RESERVED
TO THE STATE.  BUT WE FIND THAT THE ADMINISTRATIVE CONSTRUCTION IS TO
THE CONTRARY.  THE ADMINISTRATION OF THE PARK WAS PLACED WITH THE WAR
DEPARTMENT  FN4 AND IT APPEARS FROM ITS FILES THAT ON JULY 14, 1930,
UPON A REVIEW OF THE PERTINENT LEGISLATION, THE JUDGE ADVOCATE GENERAL
GAVE AN OPINION THAT THE ACT OF 1927 "VESTS EXCLUSIVE JURISDICTION IN
THE UNITED STATES OVER THAT PART OF THE CHICKAMAUGA AND CHATTANOOGA
NATIONAL MILITARY PARK LOCATED WITHIN THE STATE OF GEORGIA" AND THAT
VIOLATIONS OF LAW OCCURRING ON THE CEDED LANDS ARE ENFORCEABLE ONLY BY
THE PROPER AUTHORITIES OF THE UNITED STATES.  AS THIS ADMINISTRATIVE
CONSTRUCTION IS A PERMISSIBLE ONE WE FIND IT PERSUASIVE AND WE THINK
THAT THE DEBATED QUESTION OF JURISDICTION SHOULD BE SETTLED BY
CONSTRUING THE ACT OF 1927 IN THE SAME WAY. 

ON THIS GROUND, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS,
AFFIRMING THE ORDER OF THE DISTRICT COURT DENYING THE PETITION FOR
HABEAS CORPUS, IS AFFIRMED. 

FN1  CRIMINAL CODE, SEC. 272, THIRD; 18 U.S.C. 451. 

FN2  26 STAT. 827; 36 STAT. 1157, JUD.  CODE, SEC. 238. 

FN3  GEORGIA LAWS, 1893, P. 110; 1895, P. 77; 1901, P. 85; 1902, P.
110. 

FN4  TRANSFERRED TO THE NATIONAL PARKS SERVICE, DEPARTMENT OF THE
INTERIOR BY EXECUTIVE ORDER NO. 6166, JUNE 10, 1933. 
..END :





















WASHINGTONIAN CO. V. PEARSON, 306 U.S. 30 


NO. 222.  ARGUED DECEMBER 6, 1938.  - DECIDED JANUARY 30, 1939.  - 68
APP. D.C. 373 - 98 F.2D 245, REVERSED. 


1.  SECTION 12 OF THE COPYRIGHT ACT OF 1909 PROVIDES THAT, AFTER
COPYRIGHT HAS BEEN SECURED BY PUBLICATION WITH THE PRESCRIBED NOTICE OF
COPYRIGHT, TWO COPIES OF THE COPYRIGHTED WORK SHALL BE "PROMPTLY"
DEPOSITED IN THE COPYRIGHT OFFICE; AND THAT NO SUIT FOR INFRINGEMENT
SHALL BE MAINTAINED "UNTIL" THE PROVISIONS OF THE ACT WITH RESPECT TO
THE DEPOSIT OF COPIES AND REGISTRATION OF SUCH WORK SHALL HAVE BEEN
COMPLIED WITH.  HELD THAT THE RIGHT TO SUE UNDER THE ACT FOR
INFRINGEMENT IS NOT LOST BY MERE DELAY IN DEPOSITING COPIES OF THE
COPYRIGHTED WORK.  P. 39. 

2.  FOURTEEN MONTHS AFTER THE DATE OF ITS PUBLICATION AND SIX MONTHS
AFTER IT HAD BEEN INFRINGED, COPIES OF A PUBLICATION WHICH BORE NOTICE
OF COPYRIGHT WERE DEPOSITED IN THE COPYRIGHT OFFICE AND A CERTIFICATE
OF REGISTRATION SECURED.  HELD, A SUIT TO ENJOIN THE INFRINGEMENT AND
TO RECOVER DAMAGES (FROM THE DATE OF PUBLICATION OF THE INFRINGING
WORK) WAS MAINTAINABLE UNDER THE COPYRIGHT ACT OF 1909.  PP. 33, 39. 

3.  THE COPYRIGHT ACT OF 1909 WAS INTENDED DEFINITELY TO GRANT
VALUABLE, ENFORCEABLE RIGHTS TO AUTHORS, PUBLISHERS, ETC., WITHOUT
BURDENSOME REQUIREMENTS.  FORFEITURES OF SUCH RIGHTS ARE NOT TO BE
INFERRED FROM DOUBTFUL LANGUAGE.  PP. 36, 42. 

WASHINGTONIAN PUBLISHING CO. V. PEARSON ET AL. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 305 U.S. 583, TO REVIEW THE REVERSAL OF A DECREE FOR THE
PLAINTIFF IN A SUIT FOR INFRINGEMENT OF A COPYRIGHT. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

BY THIS SUIT, INSTITUTED IN THE DISTRICT OF COLUMBIA, MARCH 8, 1933,
PETITIONER SEEKS AN INJUNCTION, DAMAGES, ETC., BECAUSE OF ALLEGED
UNAUTHORIZED USE OF A MAGAZINE ARTICLE COPYRIGHTED UNDER ACT MARCH 4,
1909(CH. 320, 35 STAT. 1075; U.S.C., TITLE 17).  PERTINENT PORTIONS OF
THE STATUTE ARE IN THE MARGIN.  FN1  BOBBS-MERRILL CO. V. STRAUS, 210
U.S. 339, 346; CALIGA V. INTER OCEAN NEWSPAPER CO., 215 U.S. 182, 188. 

THE TRIAL COURT SUSTAINED PETITIONER'S CLAIM AND DIRECTED
ASCERTAINMENT OF PROFITS, DAMAGES, ETC.  THE COURT OF APPEALS RULED
THAT, AS COPIES OF THE MAGAZINE HAD NOT BEEN PROMPTLY DEPOSITED IN THE
COPYRIGHT OFFICE AS DIRECTED BY SEC. 12, THE ACTION COULD NOT BE
MAINTAINED.  IT ACCORDINGLY REVERSED THE DECREE OF THE TRIAL COURT AND
REMANDED THE CAUSE. 

THE RECORD DISCLOSES - 

DECEMBER 10, 1931, PETITIONER PUBLISHED AN ISSUE OF "THE
WASHINGTONIAN," A MONTHLY MAGAZINE, AND CLAIMED COPYRIGHT BY PRINTING
THEREON THE REQUIRED STATUTORY NOTICE.  FOURTEEN MONTHS LATER, FEBRUARY
21, 1933, COPIES WERE FIRST DEPOSITED IN THE COPYRIGHT OFFICE AND A
CERTIFICATE OF REGISTRATION SECURED.  THIS SUIT FOLLOWED, MARCH 8,
1933. 

IN AUGUST, 1932, LIVERIGHT, INC., PUBLISHED AND OFFERED FOR GENERAL
SALE A BOOK WRITTEN BY TWO OF THE RESPONDENTS AND PRINTED BY ANOTHER,
WHICH CONTAINED MATERIAL SUBSTANTIALLY IDENTICAL WITH AN ARTICLE
CONTAINED IN THE WASHINGTONIAN OF DECEMBER, 1931.  THE USUAL NOTICE
CLAIMED COPYRIGHT OF THIS BOOK.  AUGUST 26, 1932, COPIES WERE DEPOSITED
IN THE COPYRIGHT OFFICE AND CERTIFICATE OF REGISTRATION ISSUED. 

RESPONDENTS CONCEDE THAT PETITIONER SECURED UPON PUBLICATION A VALID
COPYRIGHT OF THE WASHINGTONIAN.  BUT THEY INSIST THAT ALTHOUGH PROMPT
DEPOSIT OF COPIES IS NOT PREREQUISITE TO COPYRIGHT, NO ACTION CAN BE
MAINTAINED BECAUSE OF INFRINGEMENT PRIOR IN DATE TO A TARDY DEPOSIT. 
COUNSEL ASSERT - "THE VERY FOUNDATION OF THE RIGHT TO MAINTAIN AN
ACTION FOR INFRINGEMENT IS DEPOSIT OF COPIES AND REGISTRATION OF THE
WORK.  NEITHER OF THESE HAS THE SLIGHTEST BEARING UPON THE CREATION OF
THE COPYRIGHT ITSELF UNDER SECTION 9.  THAT IS OBTAINED MERELY BY
PUBLICATION WITH NOTICE AS REQUIRED BY THE ACT."  ALSO, "IF COPIES WERE
NOT DEPOSITED PROMPTLY AFTER PUBLICATION THE OPPORTUNITY TO COMPLY WITH
THE REQUIREMENT OF PROMPTNESS WAS GONE FOREVER AS TO THAT PARTICULAR
WORK." 

PETITIONER SUBMITS THAT UNDER THE STATUTE PROMPT DEPOSIT OF COPIES IS
NOT PREREQUISITE TO AN ACTION FOR INFRINGEMENT; AND THAT UNDER THE
FACTS HERE DISCLOSED DEPOSIT BEFORE SUIT WAS ENOUGH. 

THE ACT OF 1909 IS A COMPLETE REVISION OF THE COPYRIGHT LAWS,
DIFFERENT FROM THE EARLIER ACT BOTH IN SCHEME AND LANGUAGE.  IT
INTRODUCED MANY CHANGES AND WAS INTENDED DEFINITELY TO GRANT VALUABLE,
ENFORCEABLE RIGHTS TO AUTHORS, PUBLISHERS, ETC., WITHOUT BURDENSOME
REQUIREMENTS; "TO AFFORD GREATER ENCOURAGEMENT TO THE PRODUCTION OF
LITERARY WORKS OF LASTING BENEFIT TO THE WORLD."  FN2 

UNDER THE OLD ACT DEPOSIT OF THE WORK WAS ESSENTIAL TO THE EXISTENCE
OF COPYRIGHT.  THIS REQUIREMENT CAUSED SERIOUS DIFFICULTIES AND
UNFORTUNATE LOSSES.  (SEE H.R. REPORT, NOTE 2, SUPRA.) THE PRESENT
STATUTE (SEC. 9) DECLARES - "ANY PERSON ENTITLED THERETO BY THIS ACT
MAY SECURE COPYRIGHT FOR HIS WORK BY PUBLICATION THEREOF WITH THE
NOTICE OF COPYRIGHT REQUIRED BY THIS ACT (SEC. 18); ...  "  AND
RESPONDENTS RIGHTLY SAY "IT IS NO LONGER NECESSARY TO DEPOSIT ANYTHING
TO SECURE A COPYRIGHT OF A PUBLISHED WORK, BUT ONLY TO PUBLISH WITH THE
NOTICE OF COPYRIGHT." 


"THAT SUCH PERSON MAY OBTAIN REGISTRATION OF HIS CLAIM TO COPYRIGHT
BY COMPLYING WITH THE PROVISIONS OF THIS ACT, INCLUDING THE DEPOSIT OF
COPIES, AND UPON SUCH COMPLIANCE THE REGISTER OF COPYRIGHTS SHALL ISSUE
TO HIM THE CERTIFICATE PROVIDED FOR IN SECTION FIFTY-FIVE OF THIS
ACT." 


"THAT AFTER COPYRIGHT HAS BEEN SECURED BY PUBLICATION OF THE WORK
WITH THE NOTICE OF COPYRIGHT AS PROVIDED IN SECTION NINE OF THIS ACT,
THERE SHALL BE PROMPTLY DEPOSITED IN THE COPYRIGHT OFFICE OR IN THE
MAIL ADDRESSED TO THE REGISTER OF COPYRIGHTS, WASHINGTON, DISTRICT OF
COLUMBIA, TWO COMPLETE COPIES OF THE BEST EDITION THEREOF THEN
PUBLISHED,  ...  NO ACTION OR PROCEEDING SHALL BE MAINTAINED FOR
INFRINGEMENT OF COPYRIGHT IN ANY WORK UNTIL THE PROVISIONS OF THIS ACT
WITH RESPECT TO THE DEPOSIT OF COPIES AND REGISTRATION OF SUCH WORK
SHALL HAVE BEEN COMPLIED WITH." 


"THAT SHOULD THE COPIES CALLED FOR BY SECTION TWELVE OF THIS ACT NOT
BE PROMPTLY DEPOSITED AS HEREIN PROVIDED, THE REGISTER OF COPYRIGHTS
MAY AT ANY TIME AFTER THE PUBLICATION OF THE WORK, UPON ACTUAL NOTICE,
REQUIRE THE PROPRIETOR OF THE COPYRIGHT TO DEPOSIT THEM, AND AFTER THE
SAID DEMAND SHALL HAVE BEEN MADE, IN DEFAULT OF THE DEPOSIT OF COPIES
OF THE WORK WITHIN THREE MONTHS FROM ANY PART OF THE UNITED STATES,
...  THE PROPRIETOR OF THE COPYRIGHT SHALL BE LIABLE TO A FINE OF ONE
HUNDRED DOLLARS AND TO PAY TO THE LIBRARY OF CONGRESS TWICE THE AMOUNT
OF THE RETAIL PRICE OF THE BEST EDITION OF THE WORK, AND THE COPYRIGHT
SHALL BECOME VOID." 

THAT DEPOSIT OF COPIES IS NOT REQUIRED PRIMARILY IN ORDER TO INSURE A
COMPLETE, PERMANENT COLLECTION OF ALL COPYRIGHTED WORKS OPEN TO THE
PUBLIC.  DEPOSITED COPIES MAY BE DISTRIBUTED OR DESTROYED UNDER THE
DIRECTION OF THE LIBRARIAN  FN3  AND THIS IS INCOMPATIBLE WITH THE
NOTION THAT COPIES ARE NOW REQUIRED IN ORDER THAT THE SUBJECT MATTER OF
PROTECTED WORKS MAY ALWAYS BE AVAILABLE FOR INFORMATION AND TO PREVENT
UNCONSCIOUS INFRINGEMENT. 

ALTHOUGH IMMEDIATELY UPON PUBLICATION OF THE WASHINGTONIAN FOR
DECEMBER, 1931, PETITIONER SECURED COPYRIGHT OF THE ARTICLES THEREIN,
RESPONDENTS MAINTAIN THAT THROUGH FAILURE PROMPTLY TO DEPOSIT COPIES IN
THE COPYRIGHT OFFICE THE RIGHT TO SUE FOR INFRINGEMENT WAS LOST.  IN
EFFECT, THAT THE PROVISION IN SEC. 12 RELATIVE TO SUITS SHOULD BE
TREATED AS THOUGH IT CONTAINED THE WORDS "PROMPTLY," ALSO "UNLESS"
INSTEAD OF "UNTIL," AND READ - NO ACTION OR PROCEEDING SHALL BE
MAINTAINED FOR INFRINGEMENT OF COPYRIGHT IN ANY WORK UNLESS THE
PROVISIONS OF THIS ACT WITH RESPECT TO THE DEPOSIT OF COPIES PROMPTLY
AND REGISTRATION OF SUCH WORK SHALL HAVE BEEN COMPLIED WITH. 

PLAUSIBLE ARGUMENTS IN SUPPORT OF THIS VIEW WERE ADVANCED BY THE
COURT OF APPEALS.  WE THINK, HOWEVER, ITS ADOPTION WOULD NOT SQUARE
WITH THE WORDS ACTUALLY USED IN THE STATUTE, WOULD CAUSE CONFLICT WITH
ITS GENERAL PURPOSE, AND IN PRACTICE PRODUCE UNFORTUNATE CONSEQUENCES. 
WE CANNOT ACCEPT IT. 

PETITIONER'S CLAIM OF COPYRIGHT CAME TO FRUITION IMMEDIATELY UPON
PUBLICATION.  WITHOUT FURTHER NOTICE IT WAS GOOD AGAINST ALL THE
WORLD.  ITS VALUE DEPENDED UPON THE POSSIBILITY OF ENFORCEMENT. 

THE USE OF THE WORD "UNTIL" IN SEC. 12 RATHER THAN "UNLESS" INDICATES
THAT MERE DELAY IN MAKING DEPOSIT OF COPIES WAS NOT ENOUGH TO CAUSE
FORFEITURE OF THE RIGHT THERETOFORE DISTINCTLY GRANTED. 

PUBLICATION OF THE WORK WITH THE NOTICE OF COPYRIGHT AS PROVIDED IN
COPYRIGHT OFFICE" TWO COPIES, ETC.  THE ACT NOWHERE DEFINES "PROMPTLY,"
AND TO MAKE THE CONTINUED EXISTENCE OF COPYRIGHT DEPEND UPON PROMPTNESS
WOULD LEAD TO UNFORTUNATE UNCERTAINTY AND CONFUSION.  THE GREAT NUMBER
OF COPYRIGHTS ANNUALLY OBTAINED IS INDICATED BY NOTE 3, SUPRA.  THE
DIFFICULTIES CONSEQUENT UPON THE FORMER REQUIREMENT OF DEPOSIT BEFORE
PUBLICATION ARE POINTED OUT IN THE COMMITTEE REPORT.  THESE WOULD BE
ENLARGED IF WHENEVER EFFORT IS MADE TO VINDICATE A COPYRIGHT IT WOULD
BECOME NECESARY TO SHOW DEPOSITS WERE MADE PROMPTLY AFTER PUBLICATION
ESPECIALLY SINCE THERE IS NO DEFINITION OF "PROMPTLY." 

FINDS UNDUE DELAY AND TO REQUIRE DEPOSIT OF COPIES.  UPON FAILURE TO
COMPLY WITHIN THREE MONTHS THE PROPRIETOR SHALL BE SUBJECT TO A FINE
AND THE COPYRIGHT SHALL BECOME VOID.  EVIDENTLY MERE DELAY DOES NOT
NECESSARILY INVALIDATE THE COPYRIGHT; ITS EXISTENCE FOR THREE MONTHS
AFTER ACTUAL NOTICE IS RECOGNIZED.  WITHOUT RIGHT OF VINDICATION A
COPYRIGHT IS VALUELESS.  IT WOULD BE GOING TOO FAR TO INFER THAT
TARDINESS ALONE DESTROYS SOMETHING VALUABLE BOTH TO PROPRIETOR AND THE
PUBLIC. 

SEC. 23 DECLARES "THAT THE COPYRIGHT SECURED BY THIS ACT SHALL ENDURE
FOR TWENTY-EIGHT YEARS FROM THE DATE OF FIRST PUBLICATION, WHETHER THE
COPYRIGHTED WORK BEARS THE AUTHOR'S TRUE NAME OR IS PUBLISHED
ANONYMOUSLY OR UNDER AN ASSUMED NAME:  ...  "  FURTHERMORE, PROPER
PUBLICATION GIVES NOTICE TO ALL THE WORLD THAT IMMEDIATE COPYRIGHT
EXISTS.  ONE CHARGED WITH SUCH NOTICE IS NOT INJURED BY MERE FAILURE TO
DEPOSIT COPIES.  THE DUTY NOT TO INFRINGE IS UNAFFECTED THEREBY.  A
CERTIFICATE OF REGISTRATION PROVIDED FOR BY SEC. 55 APPARENTLY MAY BE
OBTAINED AT ANY TIME AND BECOMES EVIDENCE OF THE FACTS STATED THEREIN. 

APPLICATION AND REGISTRATION WITHIN ITS LAST YEAR ALTHOUGH THE
DEPOSITED COPYRIGHTED PUBLICATION MAY HAVE BEEN DISPOSED OF UNDER SECS.
59-60, GIVE CLEAR INDICATION THAT THE REQUIREMENT FOR DEPOSIT IS NOT
FOR THE PURPOSE OF A PERMANENT RECORD OF COPYRIGHTED PUBLICATIONS AND
THAT SUCH RECORD IS NOT INDISPENSABLE TO THE EXISTENCE OF THE
COPYRIGHT.  FN4 

THE PENALTY FOR DELAY CLEARLY SPECIFIED IN SEC. 13 IS ADEQUATE FOR
PUNISHMENT OF DELINQUENTS AND TO ENFORCE CONTRIBUTIONS OF DESIRABLE
BOOKS TO THE LIBRARY.  TO GIVE SEC. 12 A MORE DRASTIC EFFECT WOULD TEND
TO DEFEAT THE BROAD PURPOSE OF THE ENACTMENT.  THE REPORT OF THE
CONGRESSIONAL COMMITTEE POINTS OUT THAT FORFEITURE AFTER NOTICE AND
THREE MONTHS' FURTHER DELAY WAS THOUGHT TOO SEVERE BY SOME.  NOWHERE
DOES IT SUGGEST APPROVAL OF THE MUCH MORE DRASTIC RESULT NOW INSISTED
UPON BY RESPONDENTS. 

READ TOGETHER AS THE COMMITTEE WHICH REPORTED THE BILL SAID THEY
SHOULD BE, SECS. 12 AND 13 SHOW, WE THINK, THE CONGRESS INTENDED THAT
PROMPT DEPOSIT WHEN DEEMED NECESSARY SHOULD BE ENFORCED THROUGH ACTUAL
NOTICE BY THE REGISTER; ALSO THAT WHILE NO ACTION CAN BE MAINTAINED
BEFORE COPIES ARE ACTUALLY DEPOSITED, MERE DELAY WILL NOT DESTROY THE
RIGHT TO SUE.  SUCH FORFEITURES ARE NEVER TO BE INFERRED FROM DOUBTFUL
LANGUAGE. 

THIS VIEW IS IN ACCORD WITH THE INTERPRETATION OF SOMEWHAT SIMILAR
PROVISIONS OF THE ENGLISH COPYRIGHT ACT.  GOUBAUD V. WALLACE AND CATE
V. DEVON CONSTITUTIONAL NEWSPAPER CO., SUPRA.  ALSO WITH THE
CONCLUSIONS REACHED IN LUMIERE V. PATHE EXCHANGE AND MITTENTHAL V.
BERLIN, SUPRA. 

THE CHALLENGED DECREE MUST BE REVERSED.  THE CAUSE WILL BE REMANDED
TO THE DISTRICT COURT.  REVERSED. 

FN1  ACT MARCH 4, 1909 - 

"SEC. 1.  THAT ANY PERSON ENTITLED THERETO, UPON COMPLYING WITH THE
PROVISIONS OF THIS ACT, SHALL HAVE THE EXCLUSIVE RIGHT: 

"(A) TO PRINT, REPRINT, PUBLISH, COPY, AND VEND THE COPYRIGHTED WORK;
... 

"SEC. 3.  THAT THE COPYRIGHT PROVIDED BY THIS ACT SHALL PROTECT ALL
THE COPYRIGHTABLE COMPONENT PARTS OF THE WORK COPYRIGHTED, AND ALL
MATTER THEREIN IN WHICH COPYRIGHT IS ALREADY SUBSISTING, BUT WITHOUT
EXTENDING THE DURATION OR SCOPE OF SUCH COPYRIGHT.  THE COPYRIGHT UPON
COMPOSITE WORKS OR PERIODICALS SHALL GIVE TO THE PROPRIETOR THEREOF ALL
THE RIGHTS IN RESPECT THERETO WHICH HE WOULD HAVE IF EACH PART WERE
INDIVIDUALLY COPYRIGHTED UNDER THIS ACT. 

"SEC. 4.  THAT THE WORKS FOR WHICH COPYRIGHT MAY BE SECURED UNDER
THIS ACT SHALL INCLUDE ALL THE WRITINGS OF AN AUTHOR. 

"SEC. 9.  THAT ANY PERSON ENTITLED THERETO BY THIS ACT MAY SECURE
COPYRIGHT FOR HIS WORK BY PUBLICATION THEREOF WITH THE NOTICE OF
COPYRIGHT REQUIRED BY THIS ACT; AND SUCH NOTICE SHALL BE AFFIXED TO
EACH COPY THEREOF PUBLISHED OR OFFERED FOR SALE IN THE UNITED STATES BY
AUTHORITY OF THE COPYRIGHT PROPRIETOR,  ... 

"SEC. 10.  THAT SUCH PERSON MAY OBTAIN REGISTRATION OF HIS CLAIM TO
COPYRIGHT BY COMPLYING WITH THE PROVISIONS OF THIS ACT, INCLUDING THE
DEPOSIT OF COPIES, AND UPON SUCH COMPLIANCE THE REGISTER OF COPYRIGHTS
SHALL ISSUE TO HIM THE CERTIFICATE PROVIDED FOR IN SECTION FIFTY-FIVE
OF THIS ACT. 

"SEC. 12.  THAT AFTER COPYRIGHT HAS BEEN SECURED BY PUBLICATION OF
THE WORK WITH THE NOTICE OF COPYRIGHT AS PROVIDED IN SECTION NINE OF
THIS ACT, THERE SHALL BE PROMPTLY DEPOSITED IN THE COPYRIGHT OFFICE OR
IN THE MAIL ADDRESSED TO THE REGISTER OF COPYRIGHTS, WASHINGTON,
DISTRICT OF COLUMBIA, TWO COMPLETE COPIES OF THE BEST EDITION THEREOF
THEN PUBLISHED,  ...  NO ACTION OR PROCEEDING SHALL BE MAINTAINED FOR
INFRINGEMENT OF COPYRIGHT IN ANY WORK UNTIL THE PROVISIONS OF THIS ACT
WITH RESPECT TO THE DEPOSIT OF COPIES AND REGISTRATION OF SUCH WORK
SHALL HAVE BEEN COMPLIED WITH.    "SEC. 13.  THAT SHOULD THE COPIES
CALLED FOR BY SECTION TWELVE OF THIS ACT NOT BE PROMPTLY DEPOSITED AS
HEREIN PROVIDED, THE REGISTER OF COPYRIGHTS MAY AT ANY TIME AFTER THE
PUBLICATION OF THE WORK, UPON ACTUAL NOTICE, REQUIRE THE PROPRIETOR OF
THE COPYRIGHT TO DEPOSIT THEM, AND AFTER THE SAID DEMAND SHALL HAVE
BEEN MADE, IN DEFAULT OF THE DEPOSIT OF COPIES OF THE WORK WITHIN THREE
MONTHS FROM ANY PART OF THE UNITED STATES, EXCEPT AN OUTLYING
TERRITORIAL POSSESSION OF THE UNITED STATES, OR WITHIN SIX MONTHS FROM
ANY OUTLYING TERRITORIAL POSSESSION OF THE UNITED STATES, OR FROM ANY
FOREIGN COUNTRY, THE PROPRIETOR OF THE COPYRIGHT SHALL BE LIABLE TO A
FINE OF ONE HUNDRED DOLLARS AND TO PAY TO THE LIBRARY OF CONGRESS TWICE
THE AMOUNT OF THE RETAIL PRICE OF THE BEST EDITION OF THE WORK, AND THE
COPYRIGHT SHALL BECOME VOID. 

"SEC. 18.  THAT THE NOTICE OF COPYRIGHT REQUIRED BY SECTION NINE OF
THIS ACT SHALL CONSIST EITHER OF THE WORD "COPYRIGHT" OR THE
ABBREVIATION "COPR.", ACCOMPANIED BY THE NAME OF THE COPYRIGHT
PROPRIETOR, AND IF THE WORK BE A PRINTED LITERARY, MUSICAL, OR DRAMATIC
WORK, THE NOTICE SHALL INCLUDE ALSO THE YEAR IN WHICH THE COPYRIGHT WAS
SECURED BY PUBLICATION.  ... 

"SEC. 20.  THAT WHERE THE COPYRIGHT PROPRIETOR HAS SOUGHT TO COMPLY
WITH THE PROVISIONS OF THIS ACT WITH RESPECT TO NOTICE, THE OMISSION BY
ACCIDENT OR MISTAKE OF THE PRESCRIBED NOTICE FROM A PARTICULAR COPY OR
COPIES SHALL NOT INVALIDATE THE COPYRIGHT OR PREVENT RECOVERY FOR
INFRINGEMENT AGAINST ANY PERSON WHO, AFTER ACTUAL NOTICE OF THE
COPYRIGHT, BEGINS AN UNDERTAKING TO INFRINGE IT,  ... 

"SEC. 23.  THAT THE COPYRIGHT SECURED BY THIS ACT SHALL ENDURE FOR
TWENTY-EIGHT YEARS FROM THE DATE OF FIRST PUBLICATION, WHETHER THE
COPYRIGHTED WORK BEARS THE AUTHOR'S TRUE NAME OR IS PUBLISHED
ANONYMOUSLY OR UNDER AN ASSUMED NAME:  PROVIDED, THAT IN THE CASE OF
ANY POSTHUMOUS WORK OR OF ANY PERIODICAL, CYCLOPEDIC, OR OTHER
COMPOSITE WORK UPON WHICH THE COPYRIGHT WAS ORIGINALLY SECURED BY THE
PROPRIETOR THEREOF, OR OF ANY WORK COPYRIGHTED BY A CORPORATE BODY
(OTHERWISE THAN AS ASSIGNEE OR LICENSEE OF THE INDIVIDUAL AUTHOR) OR BY
AN EMPLOYER FOR WHOM SUCH WORK IS MADE FOR HIRE, THE PROPRIETOR OF SUCH
COPYRIGHT SHALL BE ENTITLED TO A RENEWAL AND EXTENSION OF THE COPYRIGHT
IN SUCH WORK FOR THE FURTHER TERM OF TWENTY-EIGHT YEARS WHEN
APPLICATION FOR SUCH RENEWAL AND EXTENSION SHALL HAVE BEEN MADE TO THE
COPYRIGHT OFFICE AND DULY REGISTERED THEREIN WITHIN ONE YEAR PRIOR TO
THE EXPIRATION OF THE ORIGINAL TERM OF COPYRIGHT:  AND PROVIDED
FURTHER, THAT IN THE CASE OF ANY OTHER COPYRIGHTED WORK, INCLUDING A
CONTRIBUTION BY AN INDIVIDUAL AUTHOR TO A PERIODICAL OR TO A CYCLOPEDIC
OR OTHER COMPOSITE WORK WHEN SUCH CONTRIBUTION HAS BEEN SEPARATELY
REGISTERED, THE AUTHOR OF SUCH WORK, IF STILL LIVING, OR THE WIDOW,
WIDOWER, OR CHILDREN OF THE AUTHOR, IF THE AUTHOR BE NOT LIVING, OR IF
SUCH AUTHOR, WIDOW, WIDOWER, OR CHILDREN BE NOT LIVING, THEN THE
AUTHOR'S EXECUTORS, OR IN THE ABSENCE OF A WILL, HIS NEXT OF KIN SHALL
BE ENTITLED TO A RENEWAL AND EXTENSION OF THE COPYRIGHT IN SUCH WORK
FOR A FURTHER TERM OF TWENTY-EIGHT YEARS WHEN APPLICATION FOR SUCH
RENEWAL AND EXTENSION SHALL HAVE BEEN MADE TO THE COPYRIGHT OFFICE AND
DULY REGISTERED THEREIN WITHIN ONE YEAR PRIOR TO THE EXPIRATION OF THE
ORIGINAL TERM OF COPYRIGHT:  AND PROVIDED FURTHER, THAT IN DEFAULT OF
THE REGISTRATION OF SUCH APPLICATION FOR RENEWAL AND EXTENSION, THE
COPYRIGHT IN ANY WORK SHALL DETERMINE AT THE EXPIRATION OF TWENTY-EIGHT
YEARS FROM FIRST PUBLICATION. 

"SEC. 24.  THAT THE COPYRIGHT SUBSISTING IN ANY WORK AT THE TIME WHEN
THIS ACT GOES INTO EFFECT MAY, AT THE EXPIRATION OF THE TERM PROVIDED
FOR UNDER EXISTING LAW, BE RENEWED AND EXTENDED BY THE AUTHOR OF SUCH
WORK IF STILL LIVING, OR THE WIDOW, WIDOWER, OR CHILDREN OF THE AUTHOR,
IF THE AUTHOR BE NOT LIVING, OR IF SUCH AUTHOR, WIDOW, WIDOWER, OR
CHILDREN BE NOT LIVING, THEN BY THE AUTHOR'S EXECUTORS, OR IN THE
ABSENCE OF A WILL, HIS NEXT OF KIN, FOR A FURTHER PERIOD SUCH THAT THE
ENTIRE TERM SHALL BE EQUAL TO THAT SECURED BY THIS ACT, INCLUDING THE
RENEWAL PERIOD: PROVIDED, HOWEVER, THAT IF THE WORK BE A COMPOSITE WORK
UPON WHICH COPYRIGHT WAS ORIGINALLY SECURED BY THE PROPRIETOR THEREOF,
THEN SUCH PROPRIETOR SHALL BE ENTITLED TO THE PRIVILEGE OF RENEWAL AND
EXTENSION GRANTED UNDER THIS SECTION:  PROVIDED, THAT APPLICATION FOR
SUCH RENEWAL AND EXTENSION SHALL BE MADE TO THE COPYRIGHT OFFICE AND
DULY REGISTERED THEREIN WITHIN ONE YEAR PRIOR TO THE EXPIRATION OF THE
EXISTING TERM. 

"SEC. 25.  THAT IF ANY PERSON SHALL INFRINGE THE COPYRIGHT IN ANY
WORK PROTECTED UNDER THE COPYRIGHT LAWS OF THE UNITED STATES SUCH
PERSON SHALL BE LIABLE: 

"(A)  TO AN INJUNCTION RESTRAINING SUCH INFRINGEMENT; 

"(B)  TO PAY TO THE COPYRIGHT PROPRIETOR SUCH DAMAGES AS THE
COPYRIGHT PROPRIETOR MAY HAVE SUFFERED DUE TO THE INFRINGEMENT, AS WELL
AS ALL THE PROFITS WHICH THE INFRINGER SHALL HAVE MADE FROM SUCH
INFRINGEMENT,  ... 

"SEC. 27.  THAT THE PROCEEDINGS FOR AN INJUNCTION, DAMAGES, AND
PROFITS, AND THOSE FOR THE SEIZURE OF INFRINGING COPIES, PLATES, MOLDS,
MATRICES, AND SO FORTH, AFOREMENTIONED, MAY BE UNITED IN ONE ACTION. 

"SEC. 54.  THAT THE REGISTER OF COPYRIGHTS SHALL PROVIDE AND KEEP
SUCH RECORD BOOKS IN THE COPYRIGHT OFFICE AS ARE REQUIRED TO CARRY OUT
THE PROVISIONS OF THIS ACT, AND WHENEVER DEPOSIT HAS BEEN MADE IN THE
COPYRIGHT OFFICE OF A COPY OF ANY WORK UNDER THE PROVISIONS OF THIS ACT
HE SHALL MAKE ENTRY THEREOF. 

"SEC. 55.  THAT IN THE CASE OF EACH ENTRY THE PERSON RECORDED AS THE
CLAIMANT OF THE COPYRIGHT SHALL BE ENTITLED TO A CERTIFICATE OF
REGISTRATION UNDER SEAL OF THE COPYRIGHT OFFICE, TO CONTAIN HIS NAME
AND ADDRESS,  ...  SAID CERTIFICATE SHALL BE ADMITTED IN ANY COURT AS
PRIMA FACIE EVIDENCE OF THE FACTS STATED THEREIN.  IN ADDITION TO SUCH
CERTIFICATE THE REGISTER OF COPYRIGHTS SHALL FURNISH, UPON REQUEST,
WITHOUT ADDITIONAL FEE, A RECEIPT FOR THE COPIES OF THE WORK DEPOSITED
TO COMPLETE THE REGISTRATION. 

"SEC. 59.  THAT OF THE ARTICLES DEPOSITED IN THE COPYRIGHT OFFICE
UNDER THE PROVISIONS OF THE COPYRIGHT LAWS OF THE UNITED STATES OR OF
THIS ACT, THE LIBRARIAN OF CONGRESS SHALL DETERMINE WHAT BOOKS AND
OTHER ARTICLES SHALL BE TRANSFERRED TO THE PERMANENT COLLECTIONS OF THE
LIBRARY OF CONGRESS, INCLUDING THE LAW LIBRARY, AND WHAT OTHER BOOKS OR
ARTICLES SHALL BE PLACED IN THE RESERVE COLLECTIONS OF THE LIBRARY OF
CONGRESS FOR SALE OR EXCHANGE, OR BE TRANSFERRED TO OTHER GOVERNMENTAL
LIBRARIES IN THE DISTRICT OF COLUMBIA FOR USE THEREIN. 

"SEC. 60.  THAT OF ANY ARTICLES UNDISPOSED OF AS ABOVE PROVIDED,
TOGETHER WITH ALL TITLES AND CORRESPONDENCE RELATING THERETO, THE
LIBRARIAN OF CONGRESS AND THE REGISTER OF COPYRIGHTS JOINTLY SHALL, AT
SUITABLE INTERVALS, DETERMINE WHAT OF THESE RECEIVED DURING ANY PERIOD
OF YEARS IT IS DESIRABLE OR USEFUL TO PRESERVE IN THE PERMANENT FILES
OF THE COPYRIGHT OFFICE, AND, AFTER DUE NOTICE AS HEREINAFTER PROVIDED,
MAY WITHIN THEIR DISCRETION CAUSE THE REMAINING ARTICLES AND OTHER
THINGS TO BE DESTROYED:  ... 

"SEC. 62.  THAT IN THE INTERPRETATION AND CONSTRUCTION OF THIS ACT
'THE DATE OF PUBLICATION' SHALL IN THE CASE OF A WORK OF WHICH COPIES
ARE REPRODUCED FOR SALE OR DISTRIBUTION BE HELD TO BE THE EARLIEST DATE
WHEN COPIES OF THE FIRST AUTHORIZED EDITION WERE PLACED ON SALE, SOLD,
OR PUBLICLY DISTRIBUTED BY THE PROPRIETOR OF THE COPYRIGHT OR UNDER HIS
AUTHORITY, AND THE WORD 'AUTHOR' SHALL INCLUDE AN EMPLOYER IN THE CASE
OF WORKS MADE FOR HIRE." 

FN2  SEE ACT OF MARCH 3, 1891, CH. 565, 26 STAT. 1106; GOUBAUD V.
WALLACE (1877), 36 LAW TIMES (N.S.)  704, 705; 25 W.R. 604; CATE V.
DEVON & EXETER CONSTITUTIONAL NEWSPAPER CO. (1889), L.R. 40 CH. D. 500,
37 W.R. 487, 58 L.J. CH. 288, 60 L.T. 672, 5 T.L.R. 229; LUMIERE V.
PATHE EXCHANGE (1921), 275 F. 428; MITTENTHAL V. BERLIN (1923), 291 F.
714. 

ALSO REPORT OF HOUSE COMMITTEE ON PATENTS, FEBRUARY 22, 1909(NO.
2222).  AMONG OTHER THINGS THIS SAYS - 

"SECTIONS 12 AND 13 DEAL WITH THE DEPOSIT OF COPIES, AND SHOULD BE
CONSIDERED TOGETHER.  THEY MATERIALLY ALTER THE EXISTING LAW, WHICH
PROVIDES THAT IN ORDER TO MAKE THE COPYRIGHT VALID THERE MUST BE
DEPOSITED TWO COMPLETE COPIES OF THE BOOK OR OTHER ARTICLE NOT LATER
THAN THE DATE OF FIRST PUBLICATION.  THE FAILURE OF A SHIPPING CLERK TO
SEE THAT THE COPIES GO PROMPTLY FORWARD TO WASHINGTON MAY DESTROY A
COPYRIGHT OF GREAT VALUE, AND MANY COPYRIGHTS HAVE BEEN LOST BECAUSE BY
SOME ACCIDENT OR MISTAKE THIS REQUIREMENT WAS NOT COMPLIED WITH.  THE
COMMITTEE FELT THAT SOME MODIFICATION OF THIS DRASTIC PROVISION, UNDER
WHICH THE DELAY OF A SINGLE DAY MIGHT DESTROY A COYPRIGHT, MIGHT WELL
BE MADE.  THE BILL REPORTED BY THE COMMITTEE PROVIDES THAT THERE SHALL
BE 'PROMPTLY' DEPOSITED IN THE COPYRIGHT OFFICE, OR IN THE MAIL
ADDRESSED TO THE REGISTER OF COPYRIGHTS, TWO COMPLETE COPIES OF THE
BEST EDITION THEN PUBLISHED, AND THAT NO ACTION OR PROCEEDING SHALL BE
MAINTAINED FOR THE INFRINGEMENT OF COPYRIGHT IN ANY WORK UNTIL THE
PROVISIONS WITH RESPECT TO THE DEPOSIT OF COPIES AND THE REGISTRATION
OF SUCH WORK SHALL HAVE BEEN COMPLIED WITH. 

"IF THE WORKS ARE NOT PROMPTLY DEPOSITED, WE PROVIDE THAT THE
REGISTER OF COPYRIGHTS MAY AT ANY TIME AFTER PUBLICATION OF THE WORK,
UPON ACTUAL NOTICE, REQUIRE THE PROPRIETOR OF THE COPYRIGHT TO DEPOSIT,
AND THEN IN DEFAULT OF DEPOSIT OF COPIES OF THE WORK WITHIN THREE
MONTHS FROM ANY PART OF THE UNITED STATES, EXCEPT AN OUTLYING
TERRITORIAL POSSESSION OF THE UNITED STATES, OR WITHIN SIX MONTHS FROM
ANY OUTLYING TERRITORIAL POSSESSION OF THE UNITED STATES, OR FROM ANY
FOREIGN COUNTRY, THE PROPRIETOR OF THE COPYRIGHT SHALL BE LIABLE TO A
FINE OF $100 AND TO PAY TO THE LIBRARY OF CONGRESS TWICE THE AMOUNT OF
THE RETAIL PRICE OF THE BEST EDITION OF THE WORK, AND THE COPYRIGHT
SHALL BECOME VOID.  IT WAS SUGGESTED THAT THE FORFEITURE OF THE
COPYRIGHT FOR FAILURE TO DEPOSIT COPIES WAS TOO DRASTIC A REMEDY, BUT
YOUR COMMITTEE FEEL THAT IN MANY CASES IT WILL BE THE ONLY EFFECTIVE
REMEDY:  CERTAINLY THE PROVISION FOR COMPELLING THE DEPOSIT OF COPIES
BY THE IMPOSITION OF A FINE WOULD BE ABSOLUTELY UNAVAILING SHOULD THE
COPYRIGHT PROPRIETOR BE THE CITIZEN OR SUBJECT OF A FOREIGN STATE." 

FN3  SEE REPORT REGISTER COPYRIGHTS FOR 1938.  DURING THE YEAR THERE
WERE 166,248 REGISTRATIONS; 194,433 CURRENT ARTICLES DEPOSITED WERE
TRANSFERRED TO THE LIBRARY OF CONGRESS.  ALSO 3,612 MOTION PICTURE
FILMS, AND 43,302 DEPOSITS FROM OTHER CLASSES WERE RETURNED TO THE
AUTHORS OR PROPRIETORS. 

FN4  FOR STATEMENT OF THE VIEWS OF THE COPYRIGHT OFFICE CONCERNING
ACT OF 1909 AND PRACTICE THEREUNDER, SEE LETTER FROM THE REGISTER OF
COPYRIGHTS TO THE LIBRARIAN OF CONGRESS DATED SEPTEMBER 17, 1938,
PRINTED AT THE GOVERNMENT PRINTING OFFICE 1938.  THE FOLLOWING APPEARS
THEREIN - (P. 20) 

"THE FAILURE TO MAKE DEPOSIT WITHIN THE PROPER TIME DOES NOT IN
ITSELF INVALIDATE THE COPYRIGHT WHICH HAS ALREADY BEEN SECURED BY
PUBLICATION WITH NOTICE; THIS CAN NOW RESULT ONLY AFTER FAILURE TO MAKE
DEPOSIT UPON ACTUAL NOTICE AS PROVIDED IN SECTION 13. 

"IT IS TRUE THAT SECTION 12 PROVIDES THAT NO ACTION OR PROCEEDING
SHALL BE MAINTAINED FOR INFRINGEMENT UNTIL THE 'DEPOSIT OF COPIES AND
REGISTRATION' HAVE TAKEN PLACE, WHICH PRESUMABLY WAS ADDED AS A SPECIAL
INDUCEMENT TO MAKE PROMPT DEPOSIT; BUT THIS DOES NOT ANSWER THE
QUESTION. 

"HERETOFORE, THE PRACTICE OF THE OFFICE HAS BEEN TO ACCEPT COPIES AT
ANY TIME SUBSEQUENT TO PUBLICATION WITH NOTICE; THUS, IN EFFECT,
ATTACHING NO SIGNIFICANCE TO THE WORD 'PROMPTLY'; AND CERTAIN DECISIONS
OF THE COURTS SEEM TO SANCTION THE PRACTICE  ... 

"IT SEEMS VERY DESIRABLE TO REMOVE THIS DOUBT AND UNCERTAINTY BY
ELIMINATING THE WORD 'PROMPTLY' FROM SECTION 12, LEAVING SECTION 13 AS
HERETOFORE TO TAKE CARE OF ANY DELINQUENT.  ...  " 

MR. JUSTICE BLACK, DISSENTING. 

THE OPENING WORDS OF THE 1909 COPYRIGHT LAW,  FN1  UNDER WHICH
PETITIONER HERE CLAIMS, GRANT THE PRIVILEGE OF COPYRIGHT ONLY TO THOSE
WHO HAVE COMPLIED "WITH THE PROVISIONS OF THIS ACT."  THE PROVISIONS OF
THAT 1909 ACT, OF THE FIRST COPYRIGHT ACT OF 1790,  FN2  AND OF EVERY
COPYRIGHT ACT PASSED SINCE 1790, HAVE REQUIRED THAT COPIES OF A
COPYRIGHTED ARTICLE BE DELIVERED TO A DESIGNATED GOVERNMENTAL
DEPOSITORY.  UNTIL TODAY, THIS COURT HAS NEVER PERMITTED RECOVERY FOR
INFRINGEMENT OF A COPYRIGHT UNLESS THE STATUTORY REQUIREMENT FOR
DEPOSIT HAD BEEN COMPLIED WITH IN THE MANNER AND WITHIN THE TIME
REQUIRED BY THE GOVERNING COPYRIGHT STATUTE.  THE 1909 ACT - GOVERNING
THE PRESENT CASE - REQUIRES THAT "AFTER COPYRIGHT HAS BEEN SECURED BY
PUBLICATION OF THE WORK WITH THE NOTICE OF COPYRIGHT AS PROVIDED IN
COPYRIGHT OFFICE OR IN THE MAIL ADDRESSED TO THE REGISTER OF
COPYRIGHTS,  ...  TWO COMPLETE COPIES OF THE BEST EDITION THEREOF THEN
PUBLISHED,  ..." 

IT IS ADMITTED THAT PETITIONER DID NOT COMPLY WITH THE STATUTE BY
PROMPT DEPOSIT OF TWO COPIES OF ITS WORK.  FOURTEEN MONTHS ELAPSED
BETWEEN THE DATE OF PUBLICATION AND THE DATE OF DEPOSIT.  PETITIONER'S
ASSERTED MONOPOLY RIGHTS REST SOLELY ON THE STATUTE  FN3  AND
PETITIONER DISOBEYED THE STATUTE'S REQUIREMENTS.  NOTWITHSTANDING THIS
DISOBEDIENCE, PETITIONER IS HERE PERMITTED TO COLLECT DAMAGES UNDER THE
STATUTE, EVEN FOR ALLEGED INFRINGEMENT COMMITTED IN THE FOURTEEN MONTH
PERIOD DURING WHICH THE STATUTE'S EXPRESS COMMAND WAS CONTINUOUSLY
DISREGARDED BY PETITIONER.  THIS CENTURY AND A HALF OLD STATUTORY
REQUIREMENT FOR PUBLIC DEPOSIT OF A COPYRIGHTED ARTICLE PROVIDED A
PUBLIC RECORD FOR THE PUBLIC'S BENEFIT.  IT IMPOSES A SIMPLE AND EASILY
PERFORMED DUTY - NOT BURDENSOME IN ANY RESPECT - IN RETURN FOR A TWENTY
EIGHT YEAR MONOPOLY, WITH RIGHT OF RENEWAL FOR TWENTY-EIGHT MORE
YEARS.  TO PERMIT RECOVERY HERE PROTECTS THE COPYRIGHT OWNER'S
STATUTORY PRIVILEGE OF MONOPOLY, BUT EMASCULATES THE STATUTORY
PROVISIONS DESIGNED - FOR OVER A CENTURY AND A HALF - TO PROTECT THE
PUBLIC.    THE JUDGMENT HERE RESTS UPON THE CONCLUSIONS:  (1) THAT THE
STATUTE GRANTS A COPYRIGHT FROM THE DATE OF FIRST PUBLICATION WITH
NOTICE; (2) THAT AFTER DEPOSITS ARE MADE THE STATUTE PERMITS A
RETROACTIVE RECOVERY FOR PUBLIC USE OF AN ARTICLE OF WHICH COPIES WERE
NEVER PROMPTLY DEPOSITED AS REQUIRED BY THE STATUTE; (3) THAT SEC. 13
PROVIDES AN EXCLUSIVE PENALTY FOR FAILURE TO MAKE THE DEPOSIT; AND (4)
THAT - ACCORDING TO ADMINISTRATIVE INTERPRETATION OF THE ACT - DEPOSITS
ARE NOT ESSENTIAL.  THESE CONCLUSIONS ARE NOT IN HARMONY WITH THE
HISTORIC POLICY OF THE COPYRIGHT LAW. 

FIRST.  THERE IS NO NOVELTY IN THE REQUIREMENT OF THE ACT OF 1909
THAT DEPOSIT OF COPIES SHALL BE MADE AFTER THE COPYRIGHT HAS ALREADY
BEEN SECURED.  EVERY COPYRIGHT ACT, INCLUDING THE ORIGINAL ACT OF 1790,
PROVIDED FOR A COPYRIGHT INTEREST WHICH (AS IN THE 1909 ACT) VESTED
PRIOR TO THE TIME BY WHICH THE LAST DEPOSIT WAS REQUIRED.  TRUE, THE
1909 ACT GRANTS A COPYRIGHT UPON FIRST PUBLICATION, THAT IS, BEFORE THE
DATE ON WHICH DEPOSIT IS REQUIRED.  BUT ALL OF THE PREVIOUS ACTS
GRANTED A COPYRIGHT INTEREST "FROM THE (TIME OF) RECORDING THE TITLE"
OF AN ARTICLE, AND RECORDING ALWAYS TOOK PLACE BEFORE THE DATE BY WHICH
THE LAST DEPOSITS WERE REQUIRED.  FN4  AND WHILE A COPYRIGHT INTEREST
UNDER THE ACTS PRIOR TO THAT OF 1909 - AS IN THAT ACT - THUS VESTED
BEFORE THE LAST DEPOSITS WERE REQUIRED, THIS COURT UNIFORMLY HELD THAT
UNDER THESE ACTS "CONDITIONS SUBSEQUENT" PROVIDING FOR DEPOSITS WERE
ACTUALLY "CONDITIONS PRECEDENT" TO THE PERFECTION OF THE COPYRIGHT. 
CONSTRUING THE REQUIREMENT OF DEPOSITS IN THE ACTS OF 1790 AND 1802,
THIS COURT SAID: "THE ANSWER IS, THAT THIS IS NOT A TECHNICAL GRANT OF
PRECEDENT AND SUBSEQUENT CONDITIONS.  ALL THE CONDITIONS ARE IMPORTANT;
THE LAW REQUIRES THEM TO BE PERFORMED; AND, CONSEQUENTLY, THEIR
PERFORMANCE IS ESSENTIAL TO A PERFECT TITLE.  ON THE PERFORMANCE OF A
PART OF THEM, THE RIGHT VESTS; AND THIS WAS ESSENTIAL TO ITS PROTECTION
UNDER THE STATUTE; BUT OTHER ACTS ARE TO BE DONE, UNLESS CONGRESS HAVE
LEGISLATED IN VAIN, TO RENDER THE RIGHT PERFECT."  FN5 

THE 1831 ACT WAS ALSO CONSTRUED BY THIS COURT AS FOLLOWS:  "ALTHOUGH,
UNDER SEC. 6 OF THE  ... ACT, THE EXCLUSIVE RIGHT TO THE COPYRIGHT
VESTS UPON THE RECORDING OF THE TITLE TO THE BOOK, AND RUNS FOR THE
PRESCRIBED PERIOD FROM THAT DATE, AND ALTHOUGH THE RIGHT OF ACTION FOR
INFRINGEMENT, UNDER SEC. 6, ALSO ACCRUES AT THAT TIME, YET IT IS QUITE
CLEAR, THAT, UNDER SEC. 4, IN RESPECT AT LEAST TO SUITS BROUGHT AFTER
THREE MONTHS FROM THE PUBLICATION OF THE BOOK, (WITHIN WHICH THE 1831
ACT REQUIRED DEPOSIT) IT MUST BE SHOWN, AS A CONDITION PRECEDENT TO THE
RIGHT TO MAINTAIN THE SUIT, THAT A COPY OF THE BOOK WAS DELIVERED TO
THE CLERK OF THE DISTRICT COURT WITHIN THREE MONTHS FROM THE
PUBLICATION.  ...  UNDOUBTEDLY, THE THREE CONDITIONS PRESCRIBED BY THE
STATUTE, NAMELY, THE DEPOSIT BEFORE PUBLICATION OF THE PRINTED COPY OF
THE TITLE OF THE BOOK, THE GIVING OF INFORMATION OF THE COPYRIGHT BY
THE INSERTION OF THE NOTICE ON THE TITLE-PAGE OR THE NEXT PAGE, AND THE
DEPOSITING OF A COPY OF THE BOOK WITHIN THREE MONTHS AFTER THE
PUBLICATION, ARE CONDITIONS PRECEDENT TO THE PERFECTION OF THE
COPYRIGHT."  FN6 

SECOND.  ALL COPYRIGHT LAWS BEFORE 1891 HAD REQUIRED DEPOSIT WITHIN
SOME DESIGNATED PERIOD AFTER PUBLICATION.  THE ACT OF 1891, HOWEVER,
REQUIRED DEPOSIT "NOT LATER THAN THE DATE OF (FIRST) PUBLICATION."  THE
JOINT COMMITTEE ON THE BILL WHICH BECAME THE 1909 ACT CONSIDERED THIS
REQUIREMENT TOO DRASTIC BECAUSE "THE DELAY OF A SINGLE DAY" (AFTER
PUBLICATION) IN MAKING THE DEPOSIT "MIGHT DESTROY A COPYRIGHT." 
INSTEAD OF REQUIRING DEPOSIT WITHIN A FIXED NUMBER OF DAYS, OR BY THE
DATE OF PUBLICATION, THE BILL AS REPORTED, AND THE 1909 ACT AS PASSED,
PERMITTED A COPYRIGHT TO BE PERFECTED BY A "PROMPT DEPOSIT" AFTER
PUBLICATION.  THE COMMITTEE DID NOT RECOMMEND, NOR DID CONGRESS PROVIDE
THAT COPYRIGHT COULD BE PERFECTED WITHOUT DEPOSIT; THE COMMITTEE DID
RECOMMEND, AND CONGRESS ENACTED AN EXTENSION OF THE TIME FOR DEPOSIT. 

IN CONSIDERING WHAT CONGRESS MEANT BY CONTINUING IN THE 1909 REVISION
OF THE COPYRIGHT LAWS THE REQUIREMENT FOR THE DEPOSIT OF COPIES, "WE
MUST LOOK TO THE ORIGIN AND SOURCE OF THE EXPRESSION AND THE JUDICIAL
CONSTRUCTION PUT UPON IT BEFORE THE ENACTMENT IN QUESTION WAS PASSED." 
FN7 PRIOR TO THE 1909 ACT THIS COURT HAD CONSTRUED PROVISIONS FOR
DEPOSIT AS ESSENTIAL REQUIREMENTS TO THE PERFECTION OF COPYRIGHT,
WHETHER CONSIDERED AS CONDITIONS PRECEDENT OR SUBSEQUENT.  FN8  THE
COMMITTEE REPORTING THE 1909 ACT POINTED OUT THAT "UNDER EXISTING LAW
(THE 1891 ACT) THE FILING OF TITLE AND DEPOSIT OF COPIES ON OR BEFORE
THE DATE OF FIRST PUBLICATION ARE CONDITIONS PRECEDENT, AND ANY FAILURE
TO COMPLY WITH THEM WORKS A FORFEITURE OF THE COPYRIGHT.  IT IS
PROPOSED UNDER THIS BILL TO SO CHANGE THIS AS TO HAVE THE COPYRIGHT
EFFECTIVE UPON THE PUBLICATION WITH NOTICE, AND THE OTHER FORMALITIES
BECOME CONDITIONS SUBSEQUENT."  FN9 

"A CONDITION PRECEDENT IS ONE WHICH MUST HAPPEN OR BE PERFORMED
BEFORE THE ESTATE TO WHICH IT IS ANNEXED CAN VEST" OR WHICH MUST BE
PERFORMED "BEFORE SOME RIGHT DEPENDENT THEREON ACCRUES."  FN10 A
"CONDITION SUBSEQUENT IS ONE ANNEXED TO AN ESTATE ALREADY VESTED,  ...
AND BY THE FAILURE OR NON-PERFORMANCE OF WHICH IT IS DEFEATED."  N11 

IT IS CLEAR THAT CONGRESS INTENDED THAT THE REQUIREMENT AS TO
DEPOSITS MUST BE COMPLIED WITH IN ORDER TO PERFECT THE COPYRIGHT
INTEREST UNDER THE 1909 ACT.  ANY OTHER CONSTRUCTION RUNS COUNTER TO
THE POLICY OF THE COPYRIGHT LAW AND REWARDS DISOBEDIENCE TO PLAIN
STATUTORY PROVISIONS. 

ONLY COMPELLING LANGUAGE COULD JUSTIFY THE CONCLUSION THAT CONGRESS
INTENDED TO ABANDON A STATUTORY POLICY - IN EFFECT SINCE 1790 - WHICH
REQUIRED OWNERS OF PATENT OR COPYRIGHT MONOPOLIES TO DISCLOSE UPON THE
PUBLIC RECORDS THE EXTENT OF THEIR CLAIMED MONOPOLIES.  UNDER THE
PREVAILING JUDGMENT HERE, PUBLIC DEPOSIT AND PUBLIC REGISTRATION ARE NO
LONGER NECESSARY IN ORDER TO OBTAIN RIGHTS UNDER THE COPYRIGHT LAW. 
AND WITHOUT DEPOSIT AND REGISTRATION, THERE NEED BE NO PUBLIC
DISCLOSURE OF THE DAY OR THE YEAR OF PUBLICATION (BY WHICH COPYRIGHT IS
OBTAINED) OF MANY COPYRIGHTED WORKS.  UNDER SEC. 18 - THE ONLY
MANDATORY PROVISION FOR PUBLIC DISCLOSURE NOW LEFT UNIMPAIRED - MANY
TYPES OF COPYRIGHT WILL BE OBTAINED MERELY BY MARKING PUBLICATIONS WITH
THE NAME OF THE PROPRIETOR AND THE WORD "COPYRIGHT", "COPYR.", OR "C". 
HEREAFTER, THERE NEED BE NO PUBLIC (OR EVEN PRIVATE) RECORD OF THE
BEGINNING AND THE ENDING OF MANY OF THESE MONOPOLIES.  AND IT IS
UNREASONABLE TO ASSUME THAT AN OWNER OF A COPYRIGHT WILL VOLUNTARILY
MAKE THE EXTENT AND LIMITATIONS OF HIS MONOPOLY MORE PUBLIC THAN THE
LAW REQUIRES.  CONGRESS DID NOT INTEND TO ENSHROUD COPYRIGHT MONOPOLIES
IN SUCH SECRECY (SEE SECS. 16, 23, 55, 62).  IF DISOBEDIENCE OF THE
STATUTORY REQUIREMENT IS TO BE REWARDED, THE REWARD SHOULD CERTAINLY BE
LIMITED - AS THE COURT OF APPEALS HELD - SO THAT A DEPOSIT WHICH DOES
NOT COMPLY WITH THE LAW COULD NOT BE GIVEN RETROACTIVE OPERATION
PERMITTING RECOVERY OF DAMAGES FOR PUBLIC USE DURING THE PERIOD OF
DISOBEDIENCE. 

THIRD.  SECTION 12 OF THE 1909 ACT - REQUIRING REGISTRATION AND
PROMPT DEPOSIT, AFTER PUBLICATION, OF TWO COMPLETE COPIES OF THE BEST
EDITION OF A COPYRIGHTED ARTICLE - PROVIDES THAT NO ACTION OR
PROCEEDING SHALL BE MAINTAINED FOR COPYRIGHT INFRINGEMENT UNTIL THE
REQUIRED COPIES ARE DEPOSITED AND THE ARTICLE REGISTERED WITH THE
REGISTER OF COPYRIGHTS.  UNDER SEC. 13, IF THE COPIES ARE NOT PROMPTLY
DEPOSITED AFTER PUBLICATION, THE REGISTER OF COPYRIGHTS MAY DEMAND
DEPOSIT BY THE PROPRIETOR.  IF DEPOSIT IS NOT THEN MADE WITHIN THREE
MONTHS, THE PROPRIETOR IS LIABLE TO A FINE OF $100.00 AND PAYMENT TO
THE LIBRARY OF CONGRESS OF TWICE THE AMOUNT OF THE RETAIL PRICE OF THE
BEST EDITION OF THE ARTICLE, AND THE COPYRIGHT BECOMES VOID FOR ALL
PURPOSES.  IT IS SUGGESTED THAT SEC. 13 PROVIDES THE SOLE AND EXCLUSIVE
PENALTY FOR FAILURE TO COMPLY WITH THE STATUTORY REQUIREMENT OF PROMPT
DEPOSIT OF COPIES.  BUT THIS IGNORES ONE OF THE TWO DISTINCT PURPOSES
OF CONGRESS IN REQUIRING DEPOSITS OF COPIES IN THE 1909 ACT AND IN ALL
PRECEDING COPYRIGHT ACTS.  FIRST, THE DEPOSIT IS INTENDED TO RECORD
PUBLICLY FULL AND COMPLETE INFORMATION ABOUT A WORK FOR WHICH COPYRIGHT
IS CLAIMED AND TO MAKE THAT WORK CONTINUOUSLY AVAILABLE FOR PUBLIC
INSPECTION IN ORDER THAT THE EXTENT AND BOUNDARIES OF THE MONOPOLY MAY
BE UNDERSTOOD BY THE PUBLIC AT ALL TIMES DURING THE LIFE OF THE
COPYRIGHT.  THE JUDGMENT HERE RENDERS THIS PRIMARY CONGRESSIONAL
PURPOSE INEFFECTIVE.  SECOND, CONGRESS INTENDED TO PRESERVE "DESIRABLE
OR USEFUL"  FN12  WORKS IN A GOVERNMENTAL AGENCY DEDICATED TO THE
DIFFUSION OF PUBLIC KNOWLEDGE.  IN FURTHERANCE OF THIS SECOND PURPOSE
THE ACT OF 1909, - AS DID OTHER ACTS SINCE 1846 - REQUIRED COPIES TO BE
DEPOSITED WITH THE LIBRARY OF CONGRESS.  THESE TWO SEPARATE AND
DISTINCT PURPOSES HAVE BEEN MANIFESTED BY CONGRESS SOMETIMES IN
DIFFERENT SECTIONS OF A SINGLE COPYRIGHT STATUTE AND AT OTHER TIMES IN
SEPARATE ACTS. 

TO EFFECTUATE THE FIRST PURPOSE, THAT IS, TO NOTIFY THE PUBLIC OF THE
EXISTENCE AND EXTENT OF A COPYRIGHT MONOPOLY, THE FIRST ACT OF 1790
REQUIRED DEPOSIT, PUBLIC RECORDING AND REGISTRATION IN A DISTRICT
COURT, AND PUBLICATION IN A NEWSPAPER; THE ACT OF 1831 REQUIRED DEPOSIT
WITH THE CLERK OF A DISTRICT COURT (WITHOUT PENALTY FOR FAILURE TO
DEPOSIT); THE ACT OF 1870 REQUIRED DEPOSIT OF ONE COPY OF THE TITLE
WITH THE LIBRARIAN OF CONGRESS BEFORE PUBLICATION AND TWO COPIES OF THE
ARTICLE WITHIN TEN DAYS AFTER PUBLICATION WITHOUT PROVISION FOR MONEY
PENALTY FOR FAILURE TO COMPLY; SEC. 4956 OF THE REVISED STATUTES (1878)
REQUIRED DEPOSIT OF ONE COPY OF THE TITLE BEFORE PUBLICATION AND TWO
COPIES OF THE WORK AFTER PUBLICATION.  DEPOSIT HAS SERVED AS AN
INTEGRAL PART OF EVERY LEGISLATIVE PLAN TO GIVE THE PUBLIC FULL
INFORMATION OF COPYRIGHT MONOPOLIES.  THESE PLANS HAVE INCLUDED
DEPOSITS, REGISTRATION, NOTICE ON THE COPYRIGHTED ARTICLE ITSELF AND
FULL PUBLICATION IN NEWSPAPERS.  DEPOSIT, REGISTRATION AND NOTICE ON
THE ARTICLE - WHICH EVERY PRIOR COPYRIGHT ACT REQUIRED - ARE
SPECIFICALLY PROVIDED FOR IN THE 1909 ACT. 

TO EFFECTUATE THE SECOND PURPOSE, THAT IS, TO PRESERVE WORTHY WORKS
FOR THE DIFFUSION OF KNOWLEDGE, THE ACT OF 1790 MADE SEPARATE PROVISION
FOR DELIVERY OF AN ADDITIONAL COPY TO THE SECRETARY OF STATE "TO BE
PRESERVED IN HIS OFFICE"; IN A NON-COPYRIGHT ACT OF 1846, (9 STAT. 102,
106) CREATING THE SMITHSONIAN INSTITUTE "FOR THE DIFFUSION OF
KNOWLEDGE," CONGRESS REQUIRED DEPOSIT OF SEPARATE COPIES WITH THE
INSTITUTE AND WITH THE LIBRARY OF CONGRESS; A SPECIAL ACT OF 1865(13
STAT. 540, THE ORIGIN OF SEC. 13 NOW CONSIDERED) PERMITTED A SEPARATE
COPY TO BE FRANKED TO THE LIBRARY OF CONGRESS WITHIN A MONTH OF
PUBLICATION "FOR THE USE OF SAID LIBRARY," GAVE THE LIBRARIAN THE RIGHT
TO DEMAND THIS ADDITIONAL COPY, AND PENALIZED NON-COMPLIANCE WITH HIS
DEMAND BY FORFEITURE OF COPYRIGHT; SEC. 93 OF THE ACT OF 1870 REQUIRED
TWO ADDITIONAL COPIES OF THE BEST EDITION TO BE DELIVERED, WITHIN TEN
DAYS AFTER PUBLICATION, TO THE LIBRARIAN OF CONGRESS, AND (SEC. 94) "IN
DEFAULT OF SUCH DEPOSIT" WHICH WAS REQUIRED FOR THE BENEFIT OF THE
LIBRARY, A PENALTY OF $25.00 COULD BE COLLECTED BY THE LIBRARIAN OF
CONGRESS; SEC. 4959 OF THE REVISED STATUTES (1878) REQUIRED DEPOSIT OF
TWO ADDITIONAL SEPARATE COPIES OF THE BEST EDITION "WITHIN TEN DAYS
FROM PUBLICATION" WITH THE LIBRARIAN OF CONGRESS, AND SEC. 4960
EXTENDED THE PENALTY OF $25.00 TO COVER ALL FAILURES TO MAKE DEPOSITS
OF COPIES. 

1891(26 STAT. 1106) PROVIDED IN A SINGLE SECTION FOR DEPOSIT OF COPIES
WITH THE LIBRARIAN BOTH FOR NOTICE TO THE PUBLIC AND FOR USE OF THE
LIBRARY.  SECTION 13 OF THE 1909 ACT NOW PROVIDES IN A SINGLE SECTION -
AS HAD SEC. 4960 OF THE REVISED STATUTES - A PENALTY FOR FAILURE TO
MAKE DEPOSITS WHICH ARE REQUIRED FOR THE TWO PURPOSES OF NOTICE TO THE
PUBLIC AND USE BY THE LIBRARY.  NEITHER THIS SEC. 13 NOR ANY OF ITS
LEGISLATIVE PREDECESSORS INDICATED A CONGRESSIONAL INTENT TO ABANDON -
AS A CONDITION TO THE PERFECTION OF A COPYRIGHT - THE REQUIREMENT OF
DEPOSITS FOR THE SALUTARY PURPOSE OF PROVIDING ADEQUATE PUBLIC RECORDS
OF THE EXISTENCE AND CONTINUING EXTENT OF COPYRIGHT MONOPOLIES. 
OF COPIES OF EVERY ARTICLE ON WHICH COPYRIGHT IS CLAIMED, ADDING AN
ADDITIONAL PENALTY FOR FAILURE TO COMPLY WITH HIS DEMAND.  THIS
ADDITIONAL PENALTY MAY BE IMPOSED WHETHER THE CLAIMED COPYRIGHT IS
VALID OR INVALID, AND DOES NOT NULLIFY THE MANDATORY PROVISION OF SEC.
12 REQUIRING DEPOSIT OF COPIES FOR THE PUBLIC BENEFIT. 

MAINTAINED FOR INFRINGEMENT OF COPYRIGHT IN ANY WORK UNTIL THE
PROVISIONS OF THIS ACT WITH RESPECT TO THE DEPOSIT OF COPIES AND
REGISTRATION OF SUCH WORK SHALL HAVE BEEN COMPLIED WITH."  COMPLIANCE
WITH "THE PROVISIONS OF THIS ACT" IS MADE A CONDITION OF THE RIGHT TO
SUE, AND THE ACT IS NOT COMPLIED WITH BY DELAYING FOURTEEN MONTHS AFTER
PUBLICATION BEFORE MAKING DEPOSIT.  THE ACT REQUIRES "PROMPT DEPOSIT." 

IT IS SAID THAT TWO NEW SECTIONS (59 AND 60) OF THE 1909 ACT INDICATE
AN INTENTION OF CONGRESS TO ABANDON THE PROTECTIVE MANDATE FOR PUBLIC
RECORD OF COPYRIGHT MONOPOLIES.  THESE SECTIONS SHOW A CONTRARY PURPOSE
AND DISTINCTLY MARK THE LINE BETWEEN DEPOSITS FOR LIBRARY USES AND
DEPOSITS FOR PUBLIC INFORMATION. 

DEPOSITED COPIES TO OTHER GOVERNMENTAL LIBRARIES FOR THEIR USE.  SINCE
1909, ACTING UNDER THIS AUTHORITY, THE LIBRARIAN HAS DISTRIBUTED
186,037 VOLUMES.  FN13    SECTION 60 PERMITS THE LIBRARIAN (SUPERVISING
BOTH THE LIBRARY AND COPYRIGHT OFFICES) ACTING JOINTLY WITH THE
REGISTER OF COPYRIGHTS, (DIRECTLY IN CHARGE OF DEPOSITS FOR COPYRIGHT
PURPOSES) TO DETERMINE WHAT DEPOSITS "RECEIVED DURING ANY PERIOD OF
YEARS IT IS DESIRABLE OR USEFUL TO PRESERVE IN THE PERMANENT FILES OF
THE COPYRIGHT OFFICE  ...  "  AFTER DULY PUBLISHED NOTICE TO THE
PUBLIC, AND "SPECIFIC NOTICE TO THE COPYRIGHT PROPRIETOR OF RECORD"
OTHER ARTICLES CAN BE DESTROYED OR RETURNED TO THE PROPRIETOR "OF
RECORD."  BUT EVEN AS TO ARTICLES DESTROYED OR RETURNED, PUBLIC RECORDS
OF THE COPYRIGHT MONOPOLIES MUST BE RETAINED IN THE REGISTRATION FILES
(SECS. 10, 11, 16, 45, 47, 53, 54, 55) AND IN THE INDICES OR CATALOGUES
(SEC. 56).  ALL THESE RECORDS "SHALL BE OPEN TO PUBLIC INSPECTION." 
(SEC. 58).  AND - AMONG OTHER PURPOSES - THESE RECORDS REMAIN OPEN TO
PUBLIC INSPECTION, IN THE EVENT OF A COPYRIGHT RENEWAL. 

DURING THE LAST FORTY-ONE YEARS COPYRIGHT REGISTRATIONS NUMBERED OVER
FIVE MILLION, AND "HAVE INCREASED OVER FIVEFOLD."  N14  IN 1909, IT WAS
OBVIOUSLY NECESSARY TO ENACT LEGISLATION PROVIDING FOR DISPOSAL OF SOME
OF THE MULTITUDINOUS ACCUMULATED COPYRIGHTED ARTICLES NO LONGER
NECESSARY FOR THE PURPOSE OF PUBLIC DISCLOSURE.  BUT FAR FROM SHOWING A
CONGRESSIONAL INTENT TO PERMIT COPYRIGHT MONOPOLIES WITH NO PUBLIC
GOVERNMENTAL RECORD AVAILABLE FOR PUBLIC INSPECTION, SECS. 59 AND 60
ARE THE CLEAREST AND MOST CONCLUSIVE EVIDENCE OF A CONTRARY PURPOSE. 
THEY CARRIED FORWARD AND EMPHASIZED ONCE MORE THE DUAL STATUTORY
PURPOSE TO REQUIRE DEPOSITS FOR THE USE OF THE LIBRARY, AND TO PRESERVE
FOR THE PUBLIC THE HISTORIC AND WISE POLICY THAT THE OWNERSHIP, NATURE
AND EXTENT OF PRIVATE MONOPOLIES GRANTED BY GOVERNMENT SHOULD ALWAYS BE
SPREAD UPON GOVERNMENT RECORDS OPEN FOR PUBLIC INSPECTION. 

FOURTH.  THERE REMAINS THE SUGGESTION THAT ADMINISTRATIVE
INTERPRETATION OF THE 1909 ACT LENDS SUPPORT TO THE JUDGMENT HERE UNDER
WHICH THE STATUTORY PROVISIONS FOR PUBLIC REGISTRATION AND DEPOSIT ARE
NULLIFIED.  ON THE CONTRARY, THE RULES AND REGULATIONS PROMULGATED BY
THE REGISTER OF COPYRIGHTS UNDER THE 1909 ACT HAVE CONTINUOUSLY AND
CONSISTENTLY RECOGNIZED THAT REGISTRATION AND DEPOSIT ARE MANDATORY. 
FROM THE FIRST (1910) UNTIL THE LATEST (1927) EDITION OF THESE RULES
AND REGULATIONS THEY HAVE SUBSTANTIALLY PROVIDED AS FOLLOWS: 

"PROMPTLY AFTER FIRST PUBLICATION OF THE WORK WITH THE COPYRIGHT
NOTICE INSCRIBED, TWO COMPLETE COPIES OF THE BEST EDITION OF THE WORK
THEN PUBLISHED MUST BE SENT TO THE COPYRIGHT OFFICE, WITH THE PROPER
APPLICATION FOR REGISTRATION CORRECTLY FILLED OUT AND A MONEY ORDER FOR
THE AMOUNT OF THE LEGAL FEE. 

"THE STATUTE REQUIRES THAT THE DEPOSIT OF THE COPYRIGHT WORK SHALL BE
MADE 'PROMPTLY' WHICH HAS BEEN DEFINED AS 'WITHOUT UNNECESSARY DELAY.' 
IT IS NOT ESSENTIAL, HOWEVER, THAT THE DEPOSIT BE MADE ON THE VERY DAY
OF PUBLICATION."  FN15 

BUT IT IS SAID THAT A LETTER FROM THE REGISTER OF COPYRIGHTS TO THE
LIBRARIAN OF CONGRESS - DATED SEPTEMBER 17, 1938 - INDICATES A
DIFFERENT INTERPRETATION OF THE ACT BY THE COPYRIGHT OFFICE.  HOWEVER,
THIS LETTER DOES NOT PURPORT TO CHANGE THE FORMAL RULES AND REGULATIONS
- IN FORCE AND EFFECT SINCE 1910 - WHICH PROVIDE THAT DEPOSIT AND
REGISTRATION "MUST" BE "PROMPTLY" MADE.  THE 1909 ACT GIVES THE
REGISTER OF COPYRIGHTS AUTHORITY TO PROMULGATE RULES AND REGULATIONS
BUT IT DOES NOT GIVE HIM AUTHORITY TO ALTER THE LAW'S MEANING BY
COMMUNICATING WITH THE LIBRARIAN OF CONGRESS.  NOR, IN FACT, DOES THIS
LETTER REPRESENT AN EFFORT BY THE REGISTER OF COPYRIGHTS TO CHANGE THE
RULES AND REGULATIONS DATING FROM 1910.  PRACTITIONERS IN THE COPYRIGHT
OFFICE, AS WELL AS THE PUBLIC GENERALLY, RELY UPON FORMAL RULES AND
REGULATIONS MADE AVAILABLE TO THE PUBLIC.  BUT WHETHER THEY HAVE ACCESS
TO INTERDEPARTMENTAL COMMUNICATIONS SUCH AS THE LETTER DOES NOT
APPEAR. 

THIS INTERDEPARTMENTAL COMMUNICATION BEARS THE DATE OF SEPTEMBER 17,
1938.  IT APPEARED IN PUBLIC FORM FOR THE FIRST TIME JANUARY 4, 1939. 
ITS APPEARANCE THUS OCCURRED NEARLY SIX YEARS AFTER THE COMPLAINT IN
THIS SUIT WAS FILED; MORE THAN EIGHT MONTHS AFTER THE CIRCUIT COURT OF
APPEALS DECIDED THAT THE STATUTORY PROVISIONS FOR DEPOSIT WERE
MANDATORY; ALMOST THREE MONTHS AFTER THIS COURT GRANTED CERTIORARI; AND
TWENTY-NINE DAYS AFTER THE CAUSE WAS ARGUED AND SUBMITTED FOR FINAL
DECISION BY THIS COURT.  THE COMMUNICATION IS ADMITTEDLY CONTRARY TO
THE ONLY TWO COURT DECISIONS WHICH IT CITES ON THE PRECISE QUESTION OF
THE EFFECT OF FAILURE TO MAKE DEPOSIT.  FN16 IT DOES NOT REPRESENT AN
ADMINISTRATIVE PRACTICE CONSISTENTLY PURSUED, OR AN ADMINISTRATIVE
INTERPRETATION OF LONG STANDING, AND THEREFORE IS NOT ENTITLED TO ANY
WEIGHT IN THE CONSTRUCTION OF THE 1909 ACT.  THE ADMINISTRATIVE RULES
AND REGULATIONS - TO WHICH WE MAY LOOK - HAVE SINCE 1910 CONSISTENTLY
REQUIRED THAT DEPOSIT "MUST" BE MADE. 

IT IS OF FAR GREATER IMPORTANCE TO THE PUBLIC TODAY THAN IT WAS IN
1790, 1831, 1870, OR 1891, THAT PUBLIC RECORD BE MADE OF COPYRIGHT
MONOPOLIES GRANTED TO FURTHER THE ARTS AND SCIENCES, SINCE THESE
PRIVILEGES HAVE BEEN EXTENDED BY STATUTE TO INCLUDE ALMOST EVERY
CONCEIVABLE TYPE OF PRODUCTION OF THE HUMAN MIND.  FN17  IT HAS BEEN
WELL SAID THAT THE "GENERAL RULE OF LAW IS, THAT THE NOBLEST OF HUMAN
PRODUCTIONS - KNOWLEDGE, TRUTHS ASCERTAINED, CONCEPTIONS, AND IDEAS -
BECOME, AFTER VOLUNTARY COMMUNICATION TO OTHERS, FREE AS THE AIR TO
COMMON USE."  FN18  ALL VOLUNTARY COMMUNICATIONS BECOME "FREE AS THE
AIR TO COMMON USE" UNLESS PROTECTED BY COMPLIANCE WITH THE COPYRIGHT
STATUTES.  MORE THAN TWENTY-FIVE YEARS AGO (1911) A CAREFUL AND
ACCURATE SURVEY OF THE COPYRIGHT LAWS LED TO THE CONCLUSION THAT "FOR
SEVENTY-FIVE YEARS IT HAS BEEN THE SETTLED LAW OF THIS COUNTRY THAT
PROTECTION UNDER THE COPYRIGHT LAW IS GRANTED ONLY TO THOSE WHO PERFORM
THE CONDITIONS ESSENTIAL TO A PERFECT COPYRIGHT TITLE."  FN19  NO
DECISION OF THIS COURT - PREVIOUS TO THAT OF TODAY - HAS QUESTIONED THE
CONSISTENT PURPOSE OF CONGRESS TO REQUIRE "THAT THE PUBLIC SHOULD HAVE
NOTICE, BY A TRUE AND CORRECT OFFICIAL REGISTRY, AS TO THE REAL AUTHOR
OR PROPRIETOR ENTITLED TO THE ENJOYMENT OF SUCH MONOPOLY AS AGAINST THE
PUBLIC."  FN20  TO GRANT MONOPOLY PRIVILEGES - BY JUDICIAL CONSTRUCTION
- TO THOSE WHO FAIL TO COMPLY WITH STATUTORY SAFEGUARDS INTENDED TO
PROTECT THE PUBLIC AGAINST ABUSES OF SUCH PRIVILEGES CONFLICTS WITH
STATUTORY POLICY EXTENDING BACK TO THE BEGINNING OF THE NATION'S
HISTORY.  AN AUTHOR IS ENTITLED TO THE BENEFIT OF EVERY RIGHT AFFORDED
BY COPYRIGHT LAW, BUT ONLY "UPON COMPLYING WITH THE PROVISIONS OF" THAT
LAW.  CONGRESS HAS PROVIDED FOR A GRANT OF MONOPOLY PRIVILEGES UNDER
COPYRIGHT FOR A TERM WHICH MAY EXTEND BY RENEWAL TO FIFTY-SIX YEARS FOR
THOSE WHO DO COMPLY.  PETITIONER HAVING CONCEDED THAT IT DISOBEYED A
PLAIN REQUIREMENT OF THE ACT DESIGNED TO INFORM AND PROTECT THE PUBLIC,
I CANNOT AGREE THAT IT SHOULD RECOVER DAMAGES UNDER THE VERY LAW IT
ADMITTEDLY DISOBEYED. 

FN1  35 STAT. 1075. 

FN2  1 STAT. 124, 125. 

FN3  BANKS V. MANCHESTER, 128 U.S. 244; CALIGA V. INTER OCEAN
NEWSPAPER CO., 215 U.S. 182, 188; BOBBS-MERRILL CO. V. STRAUS, 210 U.S.
339, 346; GLOBE NEWSPAPER CO. V. WALKER, 210 U.S. 356, 367. 

FN4  SECTION 4 OF THE FIRST ACT OF 1790, 1 STAT. 124, 125, REQUIRED
THE LAST DEPOSIT OF ONE COPY OF THE COPYRIGHTED ARTICLE "WITHIN SIX
MONTHS AFTER THE PUBLISHING THEREOF  ...  "; SEC. 4 OF THE ACT OF 1831,
4 STAT. 436, 437, REQUIRED THE LAST DEPOSIT TO BE MADE "WITHIN THREE
MONTHS FROM THE PUBLICATION  ...  "; SEC. 10 OF THE ACT OF 1846, 9
STAT. 102, 106, REQUIRED THE LAST DEPOSITS TO BE MADE "WITHIN THREE
MONTHS FROM THE PUBLICATION  ...  "; SEC. 2 OF THE ACT OF 1865, 13
STAT. 540, REQUIRED THE LAST DEPOSIT TO BE MADE "WITHIN ONE MONTH OF
THE DATE OF PUBLICATION  ... "; THE ACT OF 1867, 14 STAT. 395, REQUIRED
DEPOSIT "WITHIN ONE MONTH AFTER PUBLICATION  ...  "; SEC. 93 OF THE ACT
OF 1870, 16 STAT. 213, REQUIRED THE LAST DEPOSITS "WITHIN TEN DAYS
AFTER  ... PUBLICATION  ...  "; REVISED STATUTES OF 1878, SEC. 4956,
REQUIRED DEPOSIT "WITHIN TEN DAYS FROM THE PUBLICATION  ...  "; SEC. 3
OF THE ACT OF 1891, 26 STAT. 1106, REQUIRED DEPOSIT "NOT LATER THAN THE
DAY OF THE PUBLICATION  ...  "; SEC. 12 OF THE ACT OF 1909, 35 STAT.
1078, PROVIDES THAT "AFTER COPYRIGHT  ...  , THERE SHALL BE PROMPTLY
DEPOSITED  ...  " 

FN5  WHEATON & DONALDSON V. PETERS & GRIGG, 8 PETERS 591, 665. 

FN6  CALLAGHAN V. MYERS, 128 U.S. 617, 651, 652; CF. MERRELL V. TICE,
104 U.S. 557; THOMPSON V. HUBBARD, 131 U.S. 123, 150. 

FN7  KEPNER V. UNITED STATES, 195 U.S. 100, 121. 

FN8  SEE NOTES 5, 6, SUPRA. 

FN9  HOUSE REP. NO. 2222, 60TH CONG., 2ND SESS., P. 10. 

FN10  BLACK'S LAW DICTIONARY, 3RD ED., WEST PUBLISHING CO., 1933. 

FN11  ID. 

FN12  SEC. 60, ACT OF 1909. 

FN13  THE BOOKS WERE DISTRIBUTED TO THE DEPARTMENTS OF AGRICULTURE,
COMMERCE, NAVY, TREASURY, EDUCATION; AND TO THE FEDERAL TRADE
COMMISSION, BUREAU OF STANDARDS, ARMY MEDICAL LIBRARY, WALTER REED
HOSPITAL, ENGINEER SCHOOL, CORPS OF ENGINEERS, SOLDIERS' HOME, DISTRICT
OF COLUMBIA LIBRARY AND OTHERS.  ANNUAL REPORT, REGISTER OF COPYRIGHTS,
1938, P. 4. 

FN14  ANNUAL REPORT, REGISTER OF COPYRIGHTS, 1938, P. 1. 

FN15 RULES AND REGULATIONS OF THE COPYRIGHT OFFICE, BULLETIN NO. 15,
1927.  THE WORD "PROMPTLY" WAS INSERTED IN THE FIRST PARAGRAPH FOR THE
FIRST TIME IN 1917. 

FN16  OPINION OF THE COURT BELOW; EBELING & REUSS, INC. V. RAFF,
UNOFFICIALLY REPORTED, 28 UNITED STATES PATENT QUARTERLY, 366, (E.D.,
PENN.). 

FN17  THE ACT OF 1909 AS AMENDED, 17 U.S.C., SEC. 5, LISTS THE
FOLLOWING CLASSES OF WORKS IN WHICH COPYRIGHT MAY BE CLAIMED:  BOOKS,
INCLUDING COMPOSITE AND CYCLOPEDIC WORKS, DIRECTORIES, GAZETTEERS, AND
OTHER COMPILATIONS; PERIODICALS, INCLUDING NEWSPAPERS; LECTURES,
SERMONS, ADDRESSES (PREPARED FOR ORAL DELIVERY); DRAMATIC OR DRAMATICO
MUSICAL COMPOSITIONS; MUSICAL COMPOSITIONS; MAPS; WORKS OF ART; MODELS
OR DESIGNS FOR WORKS OF ART; REPRODUCTIONS OF A WORK OF ART; DRAWINGS
OR PLASTIC WORKS OF A SCIENTIFIC OR TECHNICAL CHARACTER; PHOTOGRAPHS;
PRINTS AND PICTORIAL ILLUSTRATIONS; MOTION-PICTURE PHOTOPLAYS; MOTION
PICTURES OTHER THAN PHOTOPLAYS. 

FN18  BRANDEIS, J., DISSENTING, INTERNATIONAL NEWS SERVICE V.
ASSOCIATED PRESS, 248 U.S. 215, 250. 

FN19  LOUIS DEJONGE & CO. V. BREUKER & KESSLER CO., 191 F. 35, 36;
AFF'D, 235 U.S. 33. 

FN20  KOPPEL V. DOWNING, 11 APP. D.C. 93, 104. 

MR. JUSTICE ROBERTS AND MR. JUSTICE REED CONCUR IN THIS DISSENT. 
..END :
























UTAH FUEL CO. V. COAL COMM'N, 306 U.S. 56 


NO. 528.  ARGUED JANUARY 3, 1939.  - DECIDED JANUARY 30, 1939.  - 69
APP. D.C. 333 - 101 F.2D 426, AFFIRMED. 


AN ORDER OF THE NATIONAL BITUMINOUS COAL COMMISSION DIRECTED ITS
SECRETARY TO MAKE AVAILABLE TO INTERESTED PARTIES, FOR POSSIBLE USE IN
EVIDENCE IN A HEARING WHICH WAS TO BE HELD BY THE COMMISSION TO
DETERMINE THE WEIGHTED AVERAGE OF THE TOTAL COSTS PER TON OF COAL
PRODUCED IN CERTAIN AREAS, CERTAIN COST AND SALES REALIZATION DATA
THERETOFORE FURNISHED BY PRODUCERS PURSUANT TO AN ORDER UNDER SEC.
10(A) OF THE BITUMINOUS COAL ACT OF 1937.  SEVERAL PRODUCERS, MEMBERS
OF THE BITUMINOUS COAL CODE, FILED A BILL IN THE DISTRICT COURT TO
ENJOIN THE THREATENED DISCLOSURE.  THE BILL ALLEGED, INTER ALIA, THAT
THE PETITIONERS WERE WITHOUT OTHER ADEQUATE REMEDY (THE ORDER NOT BEING
REVIEWABLE UNDER SEC. 6(B) OF THE ACT), AND THAT THEY WOULD SUSTAIN
IMMEDIATE AND IRREPARABLE DAMAGE FROM SUCH DISCLOSURE; AND FURTHER,
THAT THE COMMISSION'S PROPOSED ACTION WAS ARBITRARY AND UNREASONABLE,
UNAUTHORIZED BY THE STATUTE, AND IN VIOLATION OF A PROMISE OF PRIVACY
INFERABLE FROM THE ORDER UNDER WHICH THE DATA WERE FILED AND THE FORMS
USED FOR RETURNS THEREOF.  HELD: 

1.  THE SUIT WAS WITHIN THE EQUITY JURISDICTION OF THE DISTRICT
COURT.  P. 59. 

THE JURISDICTION OF THE DISTRICT COURT IS TO BE DETERMINED BY THE
ALLEGATIONS OF THE BILL; AND USUALLY IF THE BILL MAKES A CLAIM WHICH IF
WELL FOUNDED IS WITHIN THE JURISDICTION OF THE COURT, THEN IT IS WITHIN
THAT JURISDICTION WHETHER WELL FOUNDED OR NOT. 

2.  IT WAS WITHIN THE POWER OF CONGRESS TO AUTHORIZE PUBLICATION BY
THE NATIONAL BITUMINOUS COAL COMMISSION OF COST AND SALES REALIZATION
DATA FILED BY PRODUCERS, AND CONGRESS DID SO AUTHORIZE SUCH PUBLICATION
BY SEC. 10(A) OF THE BITUMINOUS COAL ACT OF 1937.  THE ORDER HERE
ATTACKED IS VALID AND MAY NOT BE ENJOINED.  P. 61. 

UTAH FUEL CO. ET AL. V. NATIONAL BITUMINOUS COAL COMM'N ET AL. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI, 305 U.S. 575, TO REVIEW A DECREE AFFIRMING THE DISMISSAL
OF A BILL FOR AN INJUNCTION. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

PETITIONERS ARE PRODUCERS - ENGAGED IN THE BUSINESS OF MINING COAL,
AND MEMBERS OF THE "BITUMINOUS COAL CODE," - THAT IS "PRODUCERS
ACCEPTING MEMBERSHIP IN THE CODE."  THE NATIONAL BITUMINOUS COAL
COMMISSION, CREATED BY ACT APRIL 26, 1937(CH. 127, 50 STAT. 72),
PURPORTING TO PROCEED UNDER SEC. 10(A), ON JULY 15, 1937 ISSUED ORDER
NO. 15 WHICH DIRECTED EACH PRODUCER OF BITUMINOUS COAL TO FILE WITHIN
FIFTEEN DAYS COMPLETE REPORT SHOWING FOR EACH MINE DETAILED COST OF
TONNAGE PRODUCED AND REALIZATION PRICES DERIVED FROM SALE, DURING
1936.  THIS NOTICE CONCLUDED - 

"THE COMMISSION DIRECTS SPECIFIC ATTENTION TO THE PROVISIONS OF
REPORTS REQUIRED UNDER THIS ORDER AND FURTHER GIVES NOTICE THAT THE
PENALTIES PROVIDED FOR NON-COMPLIANCE WITH THIS ORDER BY THE PRODUCER
WILL BE STRICTLY ENFORCED." 

APPROVED FORMS WERE DISTRIBUTED TO PRODUCERS FOR RETURNS TO THE
ORDER.  THEY CONTAINED THE FOLLOWING IN BOLD TYPE - "THIS REPORT IS
REQUIRED UNDER THE PROVISIONS OF THE BITUMINOUS COAL ACT OF 1937 AND IS
THEREFORE CONFIDENTIAL."  PETITIONERS MADE RETURNS UPON THESE FORMS. 

MARCH 30, 1938, THE COMMISSION ANNOUNCED THAT THEREAFTER IT WOULD
GIVE PUBLIC NOTICE OF A HEARING TO DETERMINE THE WEIGHTED AVERAGE OF
TOTAL COST OF THE TONNAGE OF COAL IN THE CALENDAR YEAR 1936 ADJUSTED,
ETC.  FURTHER, THAT UPON SUCH HEARING THE INFORMATION OBTAINED FROM
INDIVIDUAL COAL PRODUCERS THROUGH ORDER 15 WOULD BE MADE AVAILABLE FOR
INSPECTION AND INTRODUCTION IN EVIDENCE; THAT SEC. 10(A) OF THE ACT WAS
CONSTRUED TO AUTHORIZE SUCH DISCLOSURE. 

PETITIONERS MADE FORMAL OBJECTION TO THE MARCH 30 ACTION BUT THE
COMMISSION AFTER CONSIDERATION ANNOUNCED ADHERENCE AND ORDERED - 

"THAT THE SECRETARY OF THE COMMISSION BE AND HE IS HEREBY DIRECTED TO
CAUSE THE INDIVIDUAL COST RETURNS OF THE PRODUCERS, AS ABOVE DESCRIBED,
TO BE MADE AVAILABLE FOR INSPECTION BY INTERESTED PARTIES IN THE FINAL
HEARING IN THE ESTABLISHMENT OF MINIMUM PRICES AND MARKETING RULES AND
REGULATIONS, SO THAT THE SAME WILL BE AVAILABLE FOR INTRODUCTION IN
EVIDENCE IF AND WHEN REQUIRED." 

DEEMING THIS PROPOSED ACTION UNAUTHORIZED AND RELYING UPON SEC. 6(B)
OF THE ACT, ONE OF THE PRESENT PETITIONERS WITH OTHERS ASKED REVIEW IN
THE COURT OF APPEALS, DISTRICT OF COLUMBIA.  THAT COURT HELD THE
CHALLENGED ACTION WAS NOT REVIEWABLE BY IT AND DISMISSED THE PETITION
AUGUST 1, 1938.  MALLORY COAL CO. V. NATIONAL BITUMINOUS COAL COMM'N,
69 APP. D.C. 166; 99 F.2D 399.  AUGUST 31, 1938, THE COMMISSION ORDERED
ITS SECRETARY TO MAKE AVAILABLE FOR INSPECTION TO "INTERESTED PARTIES
WHO HAVE FILED APPEARANCES IN THIS PROCEEDING," PETITIONERS' COST,
ETC., REPORTS RETURNED UNDER ORDER 15. 

SEPTEMBER 7, 1938 PETITIONERS BY BILL FILED IN THE DISTRICT COURT,
DISTRICT OF COLUMBIA, SOUGHT AN INJUNCTION AGAINST THE THREATENED
DISCLOSURE.  THIS SET OUT THE FOREGOING FACTS, STATED THAT NO ADEQUATE
RELIEF COULD BE HAD ELSEWHERE, AND THAT PETITIONERS WOULD SUSTAIN
IMMEDIATE AND IRREPARABLE DAMAGE IF THEIR REPORTS WERE PUBLICIZED.  IT
FURTHER AVERRED THAT THE COMMISSION'S PROPOSED ACTION WAS UNAUTHORIZED,
ARBITRARY, UNREASONABLE, AND IN FLAGRANT VIOLATION OF THE STATUTE ALSO
THE PROMISE OF PRIVACY INFERABLE FROM ORDER 15 AND THE FORMS USED FOR
RETURNS THERETO. 

THE TRIAL COURT HELD "THE BILL OF COMPLAINT FAILS TO STATE A CAUSE OF
ACTION IN THAT THE ACTS OF THE DEFENDANTS SOUGHT TO BE ENJOINED ARE
AUTHORIZED BY AND NOT IN VIOLATION OF THE BITUMINOUS COAL ACT," AND
DISMISSED IT UPON MOTION.  THE COURT OF APPEALS CONCLUDED THE DISTRICT
COURT HAD NO JURISDICTION OVER THE CONTROVERSY AND UPON THAT GROUND
APPROVED THE DISMISSAL.  101 F.2D 426.  THE MATTER IS HERE BY
CERTIORARI. 

WE ARE UNABLE TO ACCEPT THE VIEW OF THE COURT OF APPEALS.  THE
DISTRICT COURT CORRECTLY RULED THAT THE BILL FAILS TO STATE A CAUSE OF
ACTION AND FOR THAT REASON PROPERLY DIRECTED THE BILL DISMISSED. 

A QUESTION COGNATE TO THE ONE HERE PRESENTED WAS BEFORE US IN SHIELDS
V. UTAH IDAHO CENTRAL RAILROAD CO., 305 U.S. 177, DECIDED DECEMBER 5,
1938, THE DATE OF THE COURT OF APPEALS' DECISION HEREIN.  WE THERE
DECLARED, ALTHOUGH DETERMINATION BY THE INTERSTATE COMMERCE COMMISSION
THAT A RAILROAD WAS NOT "INTERURBAN" DID NOT CONSTITUTE AN "ORDER"
REVIEWABLE UNDER THE URGENT DEFICIENCIES ACT OF OCTOBER, 1913,  FN1
NEVERTHELESS IN THE CIRCUMSTANCES DISCLOSED, IT COULD BE SUBJECTED TO
JUDICIAL REVIEW BY BILL IN EQUITY.  "EQUITY JURISDICTION MAY BE INVOKED
WHEN IT IS ESSENTIAL TO THE PROTECTION OF THE RIGHTS ASSERTED, EVEN
THOUGH THE COMPLAINANT SEEKS TO ENJOIN THE BRINGING OF CRIMINAL
ACTIONS." 

CONSIDERING THE CIRCUMSTANCES HERE ALLEGED, THE GREAT AND OBVIOUS
DAMAGE WHICH MIGHT BE SUFFERED, THE IMPORTANCE OF THE RIGHTS ASSERTED,
AND THE LACK OF ANY OTHER REMEDY, WE THINK COMPLAINANTS COULD PROPERLY
ASK RELIEF IN EQUITY.  THE JURISDICTION OF A DISTRICT COURT IS TO BE
"DETERMINED BY THE ALLEGATIONS OF THE BILL, AND USUALLY IF THE BILL OR
DECLARATION MAKES A CLAIM THAT IF WELL FOUNDED IS WITHIN THE
JURISDICTION OF THE COURT IT IS WITHIN THAT JURISDICTION WHETHER WELL
FOUNDED OR NOT."  HART V. B.F. KEITH VAUDEVILLE EXCHANGE, 262 U.S. 271,
273; ALSO BINDERUP V. PATHE EXCHANGE, 263 U.S. 291, 305; UNITED STATES
V. ARCHIBALD MCNEIL & SONS, 267 U.S. 302, 307. 

BY ADMISSION, CONGRESS COULD HAVE AUTHORIZED THE COMMISSION TO
DISCLOSE THE DETAILS OF REPORTS CONCERNING COSTS, ETC.  BUT PETITIONERS
INSIST THAT THE BITUMINOUS COAL ACT CONFERRED NO SUCH POWER; ON THE
CONTRARY DEFINITELY DENIES IT. 

THE ACT CONTAINS TWENTY-ONE SECTIONS AND A SCHEDULE OF DISTRICTS. 
COMMISSION AS THE 'BITUMINOUS COAL CODE', AND ARE HEREIN REFERRED TO AS
THE CODE."  "PART II - MARKETING" OF THIS DECLARES - 

"THE COMMISSION SHALL HAVE POWER TO PRESCRIBE FOR CODE MEMBERS
MINIMUM AND MAXIMUM PRICES, AND MARKETING RULES AND REGULATIONS, AS
FOLLOWS: 

"(A)  ALL CODE MEMBERS SHALL REPORT ALL SPOT ORDERS TO SUCH
STATISTICAL BUREAU HEREINAFTER PROVIDED FOR AS MAY BE DESIGNATED BY THE
COMMISSION AND SHALL FILE WITH IT COPIES OF ALL CONTRACTS FOR THE SALE
OF COAL, COPIES OF ALL INVOICES, COPIES OF ALL CREDIT MEMORANDA, AND
SUCH OTHER INFORMATION CONCERNING THE PREPARATION, COST, SALE, AND
DISTRIBUTION OF COAL AS THE COMMISSION MAY AUTHORIZE OR REQUIRE.  ALL
SUCH RECORDS SHALL BE HELD BY THE STATISTICAL BUREAU AS THE
CONFIDENTIAL RECORDS OF THE CODE MEMBER FILING SUCH INFORMATION. 

"FOR EACH DISTRICT THERE SHALL BE ESTABLISHED BY THE COMMISSION A
STATISTICAL BUREAU WHICH SHALL BE OPERATED AND MAINTAINED AS AN AGENCY
OF THE COMMISSION.  ...  " 


"THE COMMISSION MAY REQUIRE REPORTS FROM PRODUCERS AND MAY USE SUCH
OTHER SOURCES OF INFORMATION AVAILABLE AS IT DEEMS ADVISABLE, AND MAY
REQUIRE PRODUCERS TO MAINTAIN A UNIFORM SYSTEM OF ACCOUNTING OF COSTS,
WAGES, OPERATIONS, SALES, PROFITS, LOSSES, AND SUCH OTHER MATTERS AS
MAY BE REQUIRED IN THE ADMINISTRATION OF THIS ACT.  NO INFORMATION
OBTAINED FROM A PRODUCER DISCLOSING COSTS OF PRODUCTION OR SALES
REALIZATION SHALL BE MADE PUBLIC WITHOUT THE CONSENT OF THE PRODUCER
FROM WHOM THE SAME SHALL HAVE BEEN OBTAINED, EXCEPT WHERE SUCH
DISCLOSURE IS MADE IN EVIDENCE IN ANY HEARING BEFORE THE COMMISSION OR
ANY COURT AND EXCEPT THAT SUCH INFORMATION MAY BE COMPILED IN COMPOSITE
FORM IN SUCH MANNER AS SHALL NOT BE INJURIOUS TO THE INTERESTS OF ANY
PRODUCER AND, AS SO COMPILED, MAY BE PUBLISHED BY THE COMMISSION." 

COUNSEL SUBMIT AN INGENIOUS ARGUMENT TO SHOW THAT AS PETITIONERS ARE
CODE MEMBERS THEIR RETURNS TO ORDER 15 ARE NOT WITHIN THE AMBIT OF SEC.
10 AND MUST BE TREATED AS IF PRESENTED UNDER SEC. 4, PART II (A) AND
THEREFORE CONFIDENTIAL.  ALSO, THAT THE CHALLENGED ACTION OF THE BOARD
CONFLICTS WITH THE WORDS, SPIRIT AND GENERAL PURPOSES OF THE
ENACTMENT. 

WE HAVE EXAMINED THE ARGUMENT BUT CANNOT CONCLUDE THAT THE REASONS
ADVANCED ARE ADEQUATE TO SUPPORT THE POINT TAKEN. 

THE LANGUAGE OF SEC. 10(A) APPLIES TO ALL PRODUCERS AND WE THINK
ALLOWS WHAT THE BOARD PROPOSES.  IT HARMONIZES RATHER THAN CONFLICTS
WITH THE GENERAL PURPOSES OF THE STATUTE TO PERMIT ACTION BY THE BOARD
ONLY UPON FULL INFORMATION.  OBVIOUSLY PUBLICATION MAY BE HARMFUL TO
PETITIONERS BUT AS CONGRESS HAD ADEQUATE POWER TO AUTHORIZE IT AND HAS
USED LANGUAGE ADEQUATE THERETO WE CAN FIND HERE NO SUFFICIENT BASIS FOR
AN INJUNCTION. 

UPON THE GROUND AND FOR THE REASONS HEREIN STATED THE DECREE OF THE
DISTRICT COURT IS AFFIRMED. 

FN1  38 STAT. 208, 28 U.S.C. 41. 

MR. JUSTICE BLACK, CONCURRING. 

I CONCUR IN THE AFFIRMANCE OF THE DECREE OF THE DISTRICT COURT.  FOR
REASONS STATED IN THE OPINION OF THE CIRCUIT COURT OF APPEALS,  FN1  I
BELIEVE THAT COURT PROPERLY FOUND THE DISTRICT COURT WITHOUT
JURISDICTION. 

FN1  101 F.2D 426. 
..END :















FELT & TARRANT CO. V. GALLAGHER, 306 U.S. 62 


NO. 302.  ARGUED DECEMBER 13, 1938.  - DECIDED JANUARY 30, 1939.  - 23
F.SUPP.  186, AFFIRMED. 


AN ILLINOIS CORPORATION, NOT QUALIFIED TO DO LOCAL BUSINESS IN
CALIFORNIA, SOLICITED ORDERS FOR ITS GOODS FROM CALIFORNIA PURCHASERS,
THROUGH AGENTS FOR WHOM IT HIRED OFFICES IN THAT STATE, AND WHO TOOK
THE ORDERS SUBJECT TO THE VENDOR'S APPROVAL.  GOODS SOLD WERE SENT BY
THE VENDOR FROM OUTSIDE OF CALIFORNIA DIRECTLY TO THE PURCHASERS OR TO
THE AGENTS FOR DISTRIBUTION TO THEM.  PRICES WERE PAID TO THE VENDOR
DIRECTLY, IN ILLINOIS.  HELD THAT CALIFORNIA CONSTITUTIONALLY MAY APPLY
TO SUCH NONRESIDENT CORPORATION THE PROVISION OF ITS USE TAX ACT
REQUIRING RETAILERS MAINTAINING A PLACE OF BUSINESS IN THE STATE, AND
MAKING SALES OF TANGIBLE PERSONAL PROPERTY FOR STORAGE, USE OR OTHER
CONSUMPTION THEREIN, TO COLLECT FROM THE PURCHASERS THE TAXES IMPOSED. 
P. 64. 

THE ACT, SO APPLIED, IS CONSISTENT WITH THE COMMERCE CLAUSE, AND WITH
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

FELT & TARRANT MANUFACTURING CO. V. GALLAGHER ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

APPEAL FROM A DISTRICT COURT OF THREE JUDGES DISMISSING A BILL TO
ENJOIN APPELLEES FROM ENFORCING A TAX ACT. 

THE THREE CASES UPON WHICH THE LOWER COURT RELIED AS AUTHORITY FOR
THE DENIAL OF THE INJUNCTIVE RELIEF SOUGHT BY THE APPELLANT, HENNEFORD
V. SILAS MASON CO., 300 U.S. 577; BOWMAN V. CONTINENTAL OIL CO., 256
U.S. 642; AND MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, ARE NOT
APPLICABLE TO THE CASE AT BAR. 

IN EACH OF THOSE CASES THE CORPORATION SUBJECTED TO THE TAX WAS
WITHIN THE JURISDICTION OF THE TAXING STATE AND WAS TRANSACTING AN
INTRASTATE BUSINESS.  THE APPELLANT, AN ILLINOIS CORPORATION, CARRIED
ON NO INTRASTATE OPERATIONS IN CALIFORNIA AND IS NOT SUBJECT TO ITS
JURISDICTION.  SUCH BUSINESS AS IT TRANSACTS IN CALIFORNIA IS
INTERSTATE IN CHARACTER. 

CALIFORNIA, THEREFORE, LACKS THE POWER TO REQUIRE THE APPELLANT (1)
TO ACT AS THE STATE'S COLLECTING AGENT WITH RESPECT TO USE TAX WHICH
MAY BECOME DUE FROM CALIFORNIA STORERS, USERS OR CONSUMERS; OR (2) TO
INSURE PAYMENT OF SUCH TAX IF IT FAILS TO MAKE COLLECTION FROM THE TAX
DEBTORS; OR (3) OTHERWISE TO ACT AS A "RETAILER" AS DEFINED BY THE ACT
AND THE APPELLEES. 

THE TREATMENT OF THE APPELLANT AS A RETAILER SUBJECT TO THE
PROVISIONS OF THE ACT IS A DIRECT BURDEN UPON INTERSTATE COMMERCE. 
NUMEROUS PROVISIONS OF THE STATUTE, IF APPLIED TO THE APPELLANT, WOULD
DEPRIVE IT OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW.  THE ACTION OF
THE LOWER COURT IN DENYING INJUNCTIVE RELIEF WAS ERRONEOUS. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

APPELLANT SEEKS AN INJUNCTION PROHIBITING THE STATE OFFICERS FROM
ENFORCING AGAINST IT THE CALIFORNIA USE TAX ACT OF 1935.  (CAL. STAT.
1935, CH. 361, AS AMENDED BY CAL. STAT. 1937, CH. 401, 671 AND 683.) 
COUNSEL DO NOT QUESTION THE RIGHT OF THE STATE TO COLLECT THIS TAX FROM
THE USER, ETC., BUT THEY SAY THAT, IN THE CIRCUMSTANCES HERE DISCLOSED,
THE OFFICERS MAY NOT COMPEL APPELLANT TO SERVE AS AN AGENT FOR
COLLECTING THE TAX AS THEY ARE THREATENING TO DO. 

THE TRIAL COURT, THREE JUDGES, DISMISSED THE BILL UPON MOTION. 

IT APPEARS - 

APPELLANT, AN ILLINOIS CORPORATION, IS ENGAGED IN MANUFACTURING AND
SELLING COMPTOMETERS IN THAT STATE AND DELIVERING THESE TO PURCHASERS
IN VARIOUS PARTS OF THE UNION.  AS STATED BY THE COURT BELOW ITS METHOD
OF DOING BUSINESS WITH RESPECT TO CALIFORNIA PURCHASERS IS
SUBSTANTIALLY AS FOLLOWS: 

"PURSUANT TO A SEPARATE CONTRACT MADE WITH EACH, THE EXCLUSIVE RIGHT
TO SOLICIT ORDERS IN CALIFORNIA IS GRANTED TO TWO GENERAL AGENTS, EACH
OF WHOM IS ALLOTTED A SEPARATE SECTION OF THE STATE.  UNDER THIS
CONTRACT THE ONLY COMPENSATION PAID TO A GENERAL AGENT CONSISTS OF
COMMISSIONS ON SALES MADE.  EACH GENERAL AGENT MAY EMPLOY SUB-AGENTS
AND ALSO A DEMONSTRATOR FOR THE PURPOSE OF DEMONSTRATING AND
INSTRUCTING RESPECTING THE COMPTOMETERS, PROVIDED SUCH EMPLOYMENT IS
APPROVED BY PLAINTIFF.  LIKEWISE, PLAINTIFF AGREES BY THIS CONTRACT TO
PAY THE RENT OF AN OFFICE FOR EACH GENERAL AGENT, PROVIDED THE LEASE TO
THE SAME HAS BEEN APPROVED BY IT, SUCH OFFICE TO BE USED EXCLUSIVELY IN
FURTHERING ITS BUSINESS; ALSO AGREES TO PAY PART OF THE TRAVELING
EXPENSES INCURRED BY EACH GENERAL AGENT, HIS SUB-AGENTS AND
DEMONSTRATORS WHILE TRAVELING ON BUSINESS TRIPS AUTHORIZED BY
PLAINTIFF, AND ALSO TO REIMBURSE EACH GENERAL AGENT TO THE EXTENT OF
PART OF THE MONIES ADVANCED TO A SUB-AGENT AND, IN ADDITION, IN THE
AMOUNT OF $40.00 PER MONTH TOWARD THE SALARY OF A DEMONSTRATOR. 
PLAINTIFF ASSUMES NO OTHER FINANCIAL OBLIGATION WITH RESPECT TO SUB
AGENTS AND DEMONSTRATORS.  UNDER THIS CONTRACT THE GENERAL AGENT MUST
DEVOTE HIS ENTIRE TIME AND ATTENTION TO SOLICITING ORDERS FOR
PLAINTIFF.  ALL ORDERS TAKEN MUST BE SUBMITTED TO AND APPROVED BY
PLAINTIFF, ALL SALES AND DELIVERIES MUST BE MADE BY, AND ALL BILLS FOR
SUCH ORDERS AS ARE ACCEPTED MUST BE RENDERED BY, THE PLAINTIFF.  THE
GENERAL AGENT IS PROHIBITED FROM MAKING COLLECTIONS AND ALL PAYMENTS
MUST BE MADE DIRECTLY TO PLAINTIFF.  THE CONTRACT FURTHER REQUIRES THE
GENERAL AGENT TO MAINTAIN CERTAIN RECORDS, AND MAKE CERTAIN REPORTS AND
MAKE A SPECIFIED MINIMUM NUMBER OF CALLS ON PROSPECTIVE CUSTOMERS." 

AND FURTHER "THAT EACH OF THESE TWO GENERAL AGENTS MAINTAINS AN
OFFICE IN THIS STATE, THE LEASE TO SUCH OFFICE DESIGNATING THE
PLAINTIFF AS LESSEE THEREIN, THE RENT FOR THE SAME BEING PAID BY
PLAINTIFF, WHILE ALL OTHER EXPENSES OF MAINTAINING SUCH OFFICE ARE PAID
BY THE GENERAL AGENT.  AS SOON AS AN ORDER IS ACCEPTED A PARTICULAR
MACHINE IS APPROPRIATED FOR THAT PURPOSE IN PLAINTIFF'S SHIPPING
DEPARTMENT IN ILLINOIS.  ALL MACHINES SOLD FOR DELIVERY IN CALIFORNIA
ARE SHIPPED FROM ONE OF PLAINTIFF'S DISTRIBUTING POINTS OUTSIDE OF THE
STATE.  SOMETIMES MACHINES ARE FORWARDED DIRECTLY TO THE PURCHASERS,
WHILE IN OTHER INSTANCES, IN ORDER TO SECURE REDUCED FREIGHT CHARGES,
LARGE GROUPS OF MACHINES ARE SHIPPED TO THE GENERAL AGENT WHO MAKES
DELIVERY TO THE RESPECTIVE PURCHASERS.  THE ONLY MACHINES KEPT BY
PLAINTIFF IN CALIFORNIA ARE THOSE USED AS DEMONSTRATORS.  PLAINTIFF HAS
NEVER QUALIFIED TO DO INTRASTATE BUSINESS IN CALIFORNIA." 

THE USE TAX ACT (SEC. 6) DIRECTS RETAILERS MAINTAINING A PLACE OF
BUSINESS IN THE STATE, AND MAKING SALES OF TANGIBLE PERSONAL PROPERTY
FOR STORAGE, USE OR OTHER CONSUMPTION THEREIN, TO COLLECT FROM THE
PURCHASER THE TAX IMPOSED. 

APPELLANT PRESENTS FOR OUR CONSIDERATION TWO POINTS:  (1) THE STATUTE
AS CONSTRUED AND APPLIED BY THE APPELLEES TO THE APPELLANT IS REPUGNANT
TO ART. I, SEC. 8, CLAUSE 3 OF THE FEDERAL CONSTITUTION.  (2) THE
THREATENED ENFORCEMENT OF THE STATUTE WOULD DEPRIVE APPELLANT OF HIS
PROPERTY WITHOUT DUE PROCESS OF LAW CONTRARY TO THE FOURTEENTH
AMENDMENT. 

THE ARGUMENT IS THIS - 

THE APPELLANT, AN ILLINOIS CORPORATION, CARRIED ON NO INTRASTATE
OPERATIONS IN CALIFORNIA AND IS NOT SUBJECT TO ITS JURISDICTION.  SUCH
BUSINESS AS IT TRANSACTS IN CALIFORNIA IS INTERSTATE IN CHARACTER. 
CALIFORNIA, THEREFORE, LACKS THE POWER TO REQUIRE IT (1) TO ACT AS THE
STATE'S COLLECTING AGENT WITH RESPECT TO USE TAX WHICH MAY BECOME DUE
FROM CALIFORNIA STORERS, USERS OR CONSUMERS, OR (2) TO INSURE PAYMENT
OF SUCH TAX IF IT FAILS TO MAKE COLLECTIONS FROM THE TAX DEBTORS, OR
(3) OTHERWISE TO ACT AS A "RETAILER" AS DEFINED BY THE ACT AND THE
APPELLEES.  THE TREATMENT OF THE APPELLANT AS A RETAILER SUBJECT TO THE
PROVISIONS OF THE CALIFORNIA USE TAX ACT IS A DIRECT BURDEN UPON
INTERSTATE COMMERCE PROHIBITED BY THE FEDERAL CONSTITUTION.  NUMEROUS
PROVISIONS OF THE STATUTE, IF APPLIED, WOULD DEPRIVE APPELLANT OF ITS
PROPERTY WITHOUT DUE PROCESS OF LAW. 

THE TRIAL COURT THOUGHT THAT BOTH CONTENTIONS WERE FORECLOSED BY WHAT
WAS SAID AND RULED IN BOWMAN V. CONTINENTAL OIL CO., 256 U.S. 642, 650,
MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, 93, 95, AND HENNEFORD V.
SILAS MASON CO., 300 U.S. 577, 582, 583.  AND WE AGREE WITH THAT
CONCLUSION. 

HENNEFORD V. SILAS MASON CO. UPHELD A WASHINGTON STATUTE SIMILAR TO
THE ONE UNDER CONSIDERATION.  THE OPINION DECLARED (PP. 582, 583) - 

"THE TAX IS NOT UPON THE OPERATIONS OF INTERSTATE COMMERCE, BUT UPON
THE PRIVILEGE OF USE AFTER COMMERCE IS AT AN END. 

"THINGS ACQUIRED OR TRANSPORTED IN INTERSTATE COMMERCE MAY BE
SUBJECTED TO A PROPERTY TAX, NON-DISCRIMINATORY IN ITS OPERATION, WHEN
THEY HAVE BECOME PART OF THE COMMON MASS OF PROPERTY WITHIN THE STATE
OF DESTINATION.  ...  THIS IS SO, INDEED, THOUGH THEY ARE STILL IN THE
ORIGINAL PACKAGES.  ...  FOR LIKE REASONS THEY MAY BE SUBJECTED, WHEN
ONCE THEY ARE AT REST, TO A NON-DISCRIMINATORY TAX UPON USE OR
ENJOYMENT.  ...  A TAX UPON THE PRIVILEGE OF USE OR STORAGE WHEN THE
CHATTEL USED OR STORED HAS CEASED TO BE IN TRANSIT IS NOW AN IMPOST SO
COMMON THAT ITS VALIDITY HAS BEEN WITHDRAWN FROM THE ARENA OF DEBATE." 

BOWMAN V. CONTINENTAL OIL COMPANY RECOGNIZED THE RIGHT OF THE STATE
TO REQUIRE A DISTRIBUTOR "TO RENDER DETAILED STATEMENTS OF ALL GASOLINE
RECEIVED, SOLD, OR USED BY IT, WHETHER IN INTERSTATE COMMERCE OR NOT,
TO THE END THAT THE STATE MAY THE MORE READILY ENFORCE SAID EXCISE TAX
TO THE EXTENT THAT IT HAS LAWFUL POWER TO ENFORCE IT AS ABOVE STATED." 

MONAMOTOR OIL CO. V. JOHNSON UPHELD AN IOWA STATUTE.  THE COMPLAINANT
THERE SOUGHT AN INJUNCTION PROHIBITING TAX OFFICERS FROM REQUIRING THE
DISTRIBUTOR OF MOTOR OIL RECEIVED FROM ANOTHER STATE TO PAY INTO THE
STATE TREASURY THE TAX LEVIED UPON THE CONSUMER.  THIS COURT SAID (PP.
93, 95), "THERE IS NO SUBSTANCE IN THE CLAIM THAT THE STATUTES IMPOSE A
BURDEN UPON INTERSTATE COMMERCE ...  THE STATUTE IN TERMS IMPOSES THE
TAX ON MOTOR VEHICLE FUEL USED OR OTHERWISE DISPOSED OF IN THE STATE. 
INSTEAD OF COLLECTING THE TAX FROM THE USER THROUGH ITS OWN OFFICERS,
THE STATE MAKES THE DISTRIBUTOR ITS AGENT FOR THAT PURPOSE.  THIS IS A
COMMON AND ENTIRELY LAWFUL ARRANGEMENT.  ...  THE STATUTE OBVIOUSLY WAS
NOT INTENDED TO REACH TRANSACTIONS IN INTERSTATE COMMERCE, BUT TO TAX
THE USE OF MOTOR FUEL AFTER IT HAD COME TO REST IN IOWA, AND THE
REQUIREMENT THAT THE APPELLANT AS THE SHIPPER INTO IOWA SHALL, AS AGENT
OF THE STATE, REPORT AND PAY THE TAX ON THE GASOLINE THUS COMING INTO
THE STATE FOR USE BY OTHERS ON WHOM THE TAX FALLS IMPOSES NO
UNCONSTITUTIONAL BURDEN EITHER UPON INTERSTATE COMMERCE OR UPON THE
APPELLANT." 

THE CHALLENGED JUDGMENT MUST BE AFFIRMED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CAUSE. 
..END :










U.S. V. DURKEE FAMOUS FOODS, 306 U.S. 68 


NO. 309.  ARGUED JANUARY 10, 11, 1939.  - DECIDED JANUARY 30, 1939.  -
AFFIRMED. 


THE ACT OF MAY 10, 1934, PROVIDES THAT WHEN AN INDICTMENT IS FOUND
INSUFFICIENT AFTER THE PERIOD OF THE STATUTE OF LIMITATIONS HAS
EXPIRED, A NEW INDICTMENT MAY BE RETURNED DURING THE NEXT SUCCEEDING
TERM FOLLOWING SUCH FINDING, DURING WHICH A GRAND JURY SHALL BE IN
SESSION.  HELD THAT THIS DOES NOT AUTHORIZE REINDICTMENT AT THE SAME
TERM DURING WHICH THE FIRST INDICTMENT WAS FOUND DEFECTIVE.  P. 69. 

UNITED STATES V. DURKEE FAMOUS FOODS, INC.* 

*TOGETHER WITH NO. 310, UNITED STATES V. MANHATTAN LIGHTERAGE CORP.,
AND NO. 311, COLGATE-PALMOLIVE-PEET CO. V. UNITED STATES, ALSO ON
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF
NEW JERSEY. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF NEW JERSEY. 

APPEAL, UNDER THE CRIMINAL APPEALS ACT, FROM A JUDGMENT SUSTAINING A
PLEA IN BAR TO AN INDICTMENT. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE IDENTICAL QUESTIONS INVOLVED IN THESE THREE CASES REQUIRE
CONSIDERATION OF THE ACT DECEMBER 27, 1927, (CH. 6, 45 STAT. 51, U.S.C.
TITLE 18 SEC. 582) WHICH PRESCRIBES A THREE YEAR LIMITATION FOR
OFFENSES NOT CAPITAL; ALSO THE ACT MAY 10, 1934(CH. 278, 48 STAT. 772,
U.S.C. TITLE 18 SEC. 587) WHICH SPECIFIES THE TIME DURING WHICH A NEW
INDICTMENT MAY BE RETURNED AFTER THE FIRST IS FOUND TO BE DEFECTIVE OR
INSUFFICIENT FOR ANY CAUSE.  FN1 

REFERENCE TO THE FACTS DISCLOSED BY THE RECORD IN NO. 309 WILL
SUFFICE. 

DURING THE APRIL TERM 1934 THE GRAND JURY FOR THE DISTRICT OF NEW
JERSEY RETURNED AN INDICTMENT CHARGING APPELLEE WITH VIOLATION OF THE
ELKINS ACT (FEBRUARY 19, 1903, CH. 708, 32 STAT. 847, U.S.C. TITLE 49
SEC. 41) ON AUGUST 17, 1932.  A MOTION TO QUASH THIS WAS SUSTAINED,
FEBRUARY 2, 1937, DURING THE JANUARY, 1937 TERM.  LATER IN THE SAME
TERM - APRIL 9, 1937 - THE GRAND JURY RETURNED A SECOND INDICTMENT
AGAINST APPELLEE BASED ON THE SAME FACTS AND CONTAINING THE SAME
CHARGES AS THOSE SPECIFIED IN THE 1934 INDICTMENT. 

TO THE SECOND INDICTMENT APPELLEE INTERPOSED WHAT IT DESIGNATED A
PLEA IN BAR.  THIS ALLEGED (1) THAT AS THE OFFENSE CHARGED WAS
COMMITTED MORE THAN THREE YEARS PRECEDING THE RETURN OF THE PENDING
INDICTMENT PROSECUTION WAS BARRED BY THE STATUTE OF LIMITATIONS; (2)
THAT THE NEW INDICTMENT WAS NOT RETURNED IN CONFORMITY WITH THE ACT MAY
10, 1934(NOTE 1, SUPRA), SINCE IT WAS REPORTED AT THE TERM DURING WHICH
THE FIRST INDICTMENT WAS FOUND DEFECTIVE - NOT AT THE SUCCEEDING ONE. 
THIS PLEA WAS SUSTAINED AND THE CAUSE IS HERE BY DIRECT APPEAL. 

COUNSEL FOR APPELLANTS SUBMIT - 

THE ACT MAY 10, 1934 PREVENTED THE BAR OF THE STATUTE OF LIMITATIONS
FROM BECOMING EFFECTIVE UNTIL THE END OF THE TERM NEXT SUCCEEDING THAT
DURING WHICH THE FIRST INDICTMENT WAS QUASHED.  THE RULING OF THE TRIAL
COURT (1) IS CONTRARY TO THE PURPOSE OF THE ACT AND NOT REQUIRED BY ITS
LANGUAGE; (2) IS CONTRARY TO THE POLICY AND FRUSTRATES THE GENERAL
OBJECT OF THE STATUTE OF LIMITATIONS "TO ENCOURAGE PROMPTITUDE IN THE
PROSECUTION OF REMEDIES"; (3) CREATES UNNECESSARY INCONSISTENCY BETWEEN
THE TWO SECTIONS OF THE ACT, AND RESULTS IN AN ILLOGICAL AND
UNREASONABLE BREAK WITHIN THE PERIOD OF LIMITATION. 

THE ACT OF 1934 WAS PASSED UPON RECOMMENDATION OF THE SENATE
JUDICIARY COMMITTEE WHOSE REPORT STATED THAT THE PURPOSE OF THE BILL
WAS SET OUT IN A LETTER FROM THE ATTORNEY GENERAL WHICH IT QUOTED. 
FN2 

INSPECTION OF THIS LETTER SHOWS QUITE PLAINLY THAT THE BILL AS
FINALLY ENACTED UNDERTOOK TO DO EXACTLY WHAT THE ATTORNEY GENERAL
ASKED.  THE LANGUAGE IS APT TO EXPRESS THAT PURPOSE AND WE ARE WITHOUT
AUTHORITY, BY INTERPRETATION, TO GIVE THE STATUTE ANOTHER MEANING. 

THE CHALLENGED JUDGMENTS MUST BE AFFIRMED. 

FN1  CHAPTER 278: - AN ACT TO LIMIT THE OPERATION OF STATUTES OF
LIMITATIONS IN CERTAIN CASES. 

BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT WHENEVER AN
INDICTMENT IS FOUND DEFECTIVE OR INSUFFICIENT FOR ANY CAUSE, AFTER THE
PERIOD PRESCRIBED BY THE APPLICABLE STATUTE OF LIMITATIONS HAS EXPIRED,
A NEW INDICTMENT MAY BE RETURNED AT ANY TIME DURING THE NEXT SUCCEEDING
TERM OF COURT FOLLOWING SUCH FINDING, DURING WHICH A GRAND JURY THEREOF
SHALL BE IN SESSION. 

SEC. 2.  WHENEVER AN INDICTMENT IS FOUND DEFECTIVE OR INSUFFICIENT
FOR ANY CAUSE, BEFORE THE PERIOD PRESCRIBED BY THE APPLICABLE STATUTE
OF LIMITATIONS HAS EXPIRED, AND SUCH PERIOD WILL EXPIRE BEFORE THE END
OF THE NEXT REGULAR TERM OF THE COURT TO WHICH SUCH INDICTMENT WAS
RETURNED, A NEW INDICTMENT MAY BE RETURNED NOT LATER THAN THE END OF
THE NEXT SUCCEEDING TERM OF SUCH COURT, REGULAR OR SPECIAL, FOLLOWING
THE TERM AT WHICH SUCH INDICTMENT WAS FOUND DEFECTIVE OR INSUFFICIENT,
DURING WHICH A GRAND JURY THEREOF SHALL BE IN SESSION. 

SEC. 3.  IN THE EVENT OF REINDICTMENT UNDER THE PROVISIONS OF THIS
ACT THE DEFENSE OF THE STATUTE OF LIMITATIONS SHALL NOT PREVAIL AGAINST
THE NEW INDICTMENT, ANY PROVISION OF LAW TO THE CONTRARY
NOTWITHSTANDING. 

SEC. 4.  THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO ANY INDICTMENT
AGAINST WHICH THE STATUTE OF LIMITATIONS HAS RUN AT THE DATE OF
APPROVAL HEREOF. 

APPROVED MAY 10, 1934. 

FN2                                            JANUARY 17, 1934. 

HON. HENRY F. ASHURST,

 CHAIRMAN COMMITTEE ON THE JUDICIARY, 

     UNITED STATES SENATE, WASHINGTON, D.C. 

MY DEAR SENATOR:  IN SOME CRIMINAL CASES THE OFFENSE IS NOT
DISCOVERED UNTIL THE STATUTE OF LIMITATIONS HAS NEARLY RUN.  IN OTHER
CASES DEFENDANTS ARE NOT APPREHENDED FOR SOME TIME OR REMOVAL
PROCEEDINGS ARE INSTITUTED AND APPEALS TAKEN FROM HABEAS CORPUS ORDERS
REFUSING TO RELEASE THE DEFENDANT ON REMOVAL ORDER, AND IN STILL OTHER
CASES DILATORY MOTIONS ARE MADE WITH THE HOPE THAT, IF ULTIMATELY
SUSTAINED, THE STATUTE OF LIMITATIONS WILL MEANWHILE HAVE RUN AGAINST
ANOTHER PROSECUTION.  TO SAFEGUARD THE INTERESTS OF THE GOVERNMENT IN
SUCH CASES, LEGISLATION IS RECOMMENDED PROVIDING THAT IN ANY CASE IN
WHICH AN INDICTMENT IS FOUND DEFECTIVE OR INSUFFICIENT FOR ANY CAUSE,
AFTER THE PERIOD PRESCRIBED BY THE STATUTE OF LIMITATIONS HAS RUN, OR
WHERE SAID PERIOD OF LIMITATIONS HAS NOT RUN BUT WILL EXPIRE BEFORE THE
END OF THE NEXT REGULAR SESSION OF COURT, A NEW INDICTMENT MAY BE
RETURNED AT ANY TIME DURING THE FIRST SUCCEEDING TERM OF COURT AT WHICH
A GRAND JURY IS IN SESSION.  THE JUDICIAL CONFERENCE FAVORS LEGISLATION
OF THIS TENOR. 

A DRAFT OF BILL TO EFFECTUATE THIS RECOMMENDATION IS ENCLOSED
HEREWITH AND I SHALL APPRECIATE IT IF YOU WILL INTRODUCE IT AND LEND IT
YOUR SUPPORT. 

RESPECTFULLY,                              HOMER CUMMINGS,

                                           ATTORNEY GENERAL. 
..END :


















DIXIE OHIO CO. V. COMM'N, 306 U.S. 72 


NO. 260.  ARGUED DECEMBER 16, 1938.  - DECIDED JANUARY 30, 1939.  - 186
GA. 228 - 197 S.E. 887, AFFIRMED. 


THE GEORGIA MAINTENANCE TAX ACT, AS APPLIED TO APPELLANT, AN OHIO
CORPORATION ENGAGED EXCLUSIVELY IN INTERSTATE COMMERCE AS A COMMON
CARRIER OF PROPERTY BY MOTOR VEHICLE FOR HIRE, IMPOSES A TAX OF $50 ON
EACH TON-AND-A-HALF MOTOR VEHICLE, $75 ON EACH TWO-TON MOTOR VEHICLE,
AND $50 ON EACH TRAILER OF 4000 POUNDS FACTORY WEIGHT.  THE TAX WOULD
BE THE SAME IF THE CARRIER WERE ENGAGED EXCLUSIVELY IN INTRASTATE
COMMERCE, OR WERE ENGAGED IN INTERSTATE AND INTRASTATE COMMERCE, BUT
WOULD BE LESS IF THE VEHICLES WERE NOT USED FOR HIRE.  HELD: 

1.  WHILE A STATE MAY NOT IMPOSE A TAX ON THE PRIVILEGE OF ENGAGING
IN INTERSTATE COMMERCE, IT MAY VALIDLY IMPOSE A FAIR AND REASONABLE TAX
UPON VEHICLES AS COMPENSATION FOR THE USE OF ITS HIGHWAYS, EVEN THOUGH
THE VEHICLES BE USED EXCLUSIVELY IN INTERSTATE TRANSPORTATION.  P. 76. 

2.  TO SUSTAIN AN EXACTION BY THE STATE FOR THE USE OR PRIVILEGE OF
USING ITS HIGHWAYS FOR INTERSTATE TRANSPORTATION, IT MUST AFFIRMATIVELY
APPEAR THAT THE CHARGE IS FOR COMPENSATION OR TO PAY THE COST OF
POLICING THE HIGHWAYS.  P. 77. 

3.  THE SCOPE AND LANGUAGE OF THE ACT CLEARLY DISCLOSE THAT ITS
PURPOSE IS TO REQUIRE COMPENSATION FOR THE PRIVILEGE OF OPERATING OVER
THE ROADS OF THE STATE.  P. 77. 

4.  THE FACT THAT THE STATE, IN THE CONDUCT OF ITS FISCAL AFFAIRS,
CHOOSES TO USE PART OR ALL OF THE PROCEEDS OF THE TAX FOR THE
IMPROVEMENT OF ROADS OTHER THAN THOSE OVER WHICH APPELLANT OPERATES,
DOES NOT RENDER IT VIOLATIVE OF THE COMMERCE CLAUSE.  P. 77. 

5.  THE AMOUNTS PAID BY THE APPELLANT FOR LICENSE TAGS, PUBLIC
SERVICE TAGS, AND GASOLINE TAXES ARE WITHOUT SIGNIFICANCE IN THIS
CASE.  P. 78. 

6.  THE FACT THAT, IN LICENSE AND FUEL TAXES, MOTOR VEHICLES BORE
OVER 62 PER CENT. OF THE TOTAL TAXES COLLECTED BY THE STATE, DOES NOT
AID IN ASCERTAINING THE VALUE OF APPELLANT'S USE OF, OR PRIVILEGE TO
USE, THE STATE'S HIGHWAYS.  P. 78. 

7.  FIGURES SHOWING THE EXTENT OF APPELLANT'S USE OF THE STATE'S
ROADS MAY NOT BE TAKEN AS AN INDICATION OF THE VALUE OF THE PRIVILEGE
WHERE IT DOES NOT APPEAR WHETHER THE PRIVILEGE WAS FULLY AVAILED OF.
P. 78. 

8.  FAILURE OF THE APPELLANT TO FURNISH EVIDENTIARY DETAILS ON THE
ISSUE TENDS TO SUPPORT THE STATE'S CLAIM THAT THE EXACTION WAS
REASONABLE COMPENSATION FOR THE PRIVILEGE OF USE OF ITS ROADS.  P. 78. 

9.  THE IMPOSITION OF HIGHER TAXES ON VEHICLES USED FOR HIRE THAN ON
THOSE NOT SO USED IS NOT AN ARBITRARY CLASSIFICATION AND DOES NOT
VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  P.
78. 

DIXIE OHIO EXPRESS CO. V. STATE REVENUE COMMISSION ET AL. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

APPEAL FROM A JUDGMENT AFFIRMING A JUDGMENT WHICH SUSTAINED A
DEMURRER AND DISMISSED AN AFFIDAVIT CHALLENGING THE LEGALITY OF A LEVY
OF EXECUTION BY THE STATE REVENUE COMMISSION. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER, AS APPLIED IN THIS CASE BY THE HIGHEST COURT
OF THE STATE, THE GEORGIA MAINTENANCE TAX ACT  FN1  VIOLATES THE
COMMERCE CLAUSE OR THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. 

APPELLANT IS AN OHIO CORPORATION ENGAGED EXCLUSIVELY IN INTERSTATE
TRANSPORTATION AS A COMMON CARRIER OF PROPERTY FOR HIRE BY MOTOR
VEHICLES, INCLUDING HAULING BETWEEN POINTS IN GEORGIA AND POINTS IN
OTHER STATES.  A CERTIFICATE OF CONVENIENCE AND NECESSITY ISSUED BY THE
INTERSTATE COMMERCE COMMISSION AUTHORIZING APPELLANT'S INTERSTATE
TRANSPORTATION IN GEORGIA,  FN2  DOES NOT EXTEND TO TRANSPORTATION OVER
RURAL POST ROADS, WHICH ARE ROADS NOT INCLUDED IN THE STATE HIGHWAY
SYSTEM OVER WHICH UNITED STATES MAIL IS CARRIED.  FN3 

APPELLANT OWNS FOR USE IN ITS BUSINESS ABOUT 100 PIECES OF EQUIPMENT
CONSISTING OF TRUCKS AND TRACTORS WITH MANUFACTURER'S RATED CAPACITY OF
A TON AND A HALF AND TWO TONS AND TRAILERS HAVING FACTORY WEIGHT OF
4,000 POUNDS.  IF USED TO HAUL NOT FOR HIRE, THE TAX ON EACH TON-AND-A
HALF MOTOR VEHICLE IS $15; ON EACH TWO-TON VEHICLE, $30; AND ON EACH
TRAILER, $30.  BUT WHEN USED TO HAUL EITHER AS A COMMON OR CONTRACT
CARRIER FOR HIRE, THE TAXES ARE RESPECTIVELY, $50, $75, AND $50.  SEC.
3. 

FOR THE COLLECTION OF TAX ON ONE OF APPELLANT'S TWO-TON TRUCKS, THE
STATE REVENUE COMMISSION OBTAINED FROM THE SUPERIOR COURT OF FULTON
COUNTY AN EXECUTION ON WHICH IT CAUSED THE SHERIFF TO LEVY UPON THAT
VEHICLE.  APPELLANT GAVE A BOND TO THE SHERIFF WITH AN AFFIDAVIT OF
ILLEGALITY.  FN4  IN ORDER TO AVOID SEIZURE OF ALL OF APPELLANT'S
EQUIPMENT, THE STATE COMMISSION ALLOWED IT TO DEPOSIT IN ESCROW THE
AMOUNT CLAIMED UNDER THE ACT ON ACCOUNT OF OTHER EQUIPMENT AND AGREED
THAT LEVY SHOULD BE MADE ONLY ON THE ONE TRUCK.  THE COMMISSION
DEMURRED; THE SUPERIOR COURT SUSTAINED THE DEMURRER AND DISMISSED THE
AFFIDAVIT.  THE SUPREME COURT AFFIRMED.  186 GA. 228; 197 S.E. 887. 

IN ADDITION TO THE DESCRIPTION OF APPELLANT'S EQUIPMENT, OPERATIONS,
AND USE OF GEORGIA HIGHWAYS GIVEN ABOVE, THE STATEMENTS OF THE
AFFIDAVIT OF ILLEGALITY, SO FAR AS CONCERNS THE ISSUES HERE TO BE
DECIDED, MAY BE SUMMARIZED AS FOLLOWS: 

THE ACT DIRECTS THAT UPON PAYMENT OF THE MAINTENANCE TAX THE DIRECTOR
OF THE MOTOR VEHICLES DIVISION OF THE STATE COMMISSION SHALL ISSUE A
TAG (SEC. 9), AND THAT THE MONEY DERIVED FROM THE SALE OF THESE TAGS
SHALL BE ALLOCATED TO THE UNITED STATES RURAL POSTAL ROADS DIVISION OF
THE GEORGIA HIGHWAY DEPARTMENT.  SEC. 11.  THUS, NO PART OF IT IS
APPLICABLE TO HIGHWAYS OVER WHICH APPELLANT OPERATES.  THE MAINTENANCE
TAXES ON ITS EQUIPMENT FOR EACH YEAR WILL BE ABOUT $6,000.  IN
ADDITION, THE GEORGIA LAWS REQUIRE IT TO PAY $3 FOR A LICENSE TAG  FN5
AND $25 FOR A PUBLIC SERVICE TAG  FN6  FOR EACH VEHICLE AND SIX CENTS
PER GALLON OF GASOLINE PURCHASED IN GEORGIA; FN7 IT ANNUALLY BUYS IN
THAT STATE ABOUT 90,000 GALLONS.  TWO-THIRDS OF THE GASOLINE TAX IS FOR
MAINTENANCE OF STATE AID HIGHWAYS.  FN8  APPELLANT HAULS IN SEVEN
STATES; ANNUALLY ITS TRUCKS TRAVEL AN AVERAGE OF 6,870,000 MILES OF
WHICH 725,000, LESS THAN 11 PER CENT OF THE TOTAL, ARE IN GEORGIA.  THE
1936 TOTAL TAXES COLLECTED BY GEORGIA AMOUNTED TO $30,058,092.68, OF
WHICH MOTOR VEHICLES BORE $19,207,909.59 IN LICENSE AND FUEL TAXES. 

IN CONCLUSION, THE AFFIDAVIT ASSERTS THAT THE TAX IN QUESTION IS AN
UNREASONABLE FEE FOR APPELLANT'S USE OF THE ROADS AND IS THEREFORE
REPUGNANT TO THE COMMERCE CLAUSE, AND THAT IT DISCRIMINATES AGAINST
CARRIERS FOR HIRE IN FAVOR OF CARRIERS NOT FOR HIRE AND FOR THAT REASON
VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 

1.  IS THE ACT REPUGNANT TO THE COMMERCE CLAUSE? 

WITH EXCEPTIONS NOT MATERIAL HERE, IT REQUIRES THAT ALL WHO OWN OR
HAVE EXCLUSIVE RIGHT TO USE FOR MORE THAN 30 DAYS A MOTOR BUS, TRUCK,
FN9  OR TRAILER "SHALL PAY A MAINTENANCE TAX FOR OPERATION  ...  UPON
AND OVER THE PUBLIC ROADS OF THE STATE" (SEC. 1) ACCORDING TO A
SCHEDULE (SEC. 3) WHICH SPECIFIES THE AMOUNT OF THE TAX ON EACH
VEHICLE.  THE ACT MAKES NO DISTINCTION BETWEEN VEHICLES USED IN
INTRASTATE COMMERCE AND THOSE USED IN INTERSTATE COMMERCE.  IT
DISCRIMINATES IN FAVOR OF EQUIPMENT USED NOT FOR HIRE.  IT LAYS UPON
TRUCKS AND TRACTORS TAXES GRADUATED ACCORDING TO MANUFACTURER'S RATED
CAPACITIES AND UPON TRAILERS AMOUNTS GRADUATED ACCORDING TO FACTORY
WEIGHTS.  THE TAX IMPOSED ON APPELLANT IS THE SAME AS IF IT OPERATED
EXCLUSIVELY IN INTRASTATE COMMERCE OR CARRIED ON BOTH INTRASTATE AND
INTERSTATE TRANSPORTATION. 

IT IS ELEMENTARY THAT A STATE MAY NOT IMPOSE A TAX ON THE PRIVILEGE
OF ENGAGING IN INTERSTATE COMMERCE.  SPROUT V. SOUTH BEND, 277 U.S.
163, 171.  INTERSTATE TRANSIT, INC., V. LINDSEY, 283 U.S. 183, 185. 
GWIN, WHITE & PRINCE, INC. V. HENNEFORD, 305 U.S. 434, AND CASES THERE
CITED; ALSO THOSE CITED IN THE CONCURRING OPINION.  BUT, CONSISTENTLY
WITH THE COMMERCE CLAUSE, A STATE MAY IMPOSE UPON VEHICLES USED
EXCLUSIVELY FOR INTERSTATE TRANSPORTATION A FAIR AND REASONABLE TAX AS
COMPENSATION FOR THE PRIVILEGE OF USING ITS HIGHWAYS FOR THAT PURPOSE. 
THE APPLICABLE PRINCIPLE IS STATED IN HENDRICK V. MARYLAND, 235 U.S.
610.  WE THERE SAID (PP. 623-624):  "IN VIEW OF THE MANY DECISIONS OF
THIS COURT THERE CAN BE NO SERIOUS DOUBT THAT WHERE A STATE AT ITS OWN
EXPENSE FURNISHES SPECIAL FACILITIES FOR THE USE OF THOSE ENGAGED IN
COMMERCE, INTERSTATE AS WELL AS DOMESTIC, IT MAY EXACT COMPENSATION
THEREFOR.  THE AMOUNT OF THE CHARGES AND THE METHOD OF COLLECTION ARE
PRIMARILY FOR DETERMINATION BY THE STATE ITSELF; AND SO LONG AS THEY
ARE REASONABLE AND ARE FIXED ACCORDING TO SOME UNIFORM, FAIR AND
PRACTICAL STANDARD THEY CONSTITUTE NO BURDEN ON INTERSTATE COMMERCE." 
THAT RULE HAS BEEN APPLIED IN MANY CASES.  SEE E.G. KANE V. NEW JERSEY,
242 U.S. 160, 168-169.  CLARK V. POOR, 274 U.S. 554, 557.  SPROUT V.
SOUTH BEND, SUPRA, 170.  AERO TRANSIT CO. V. GEORGIA COMM'N, 295 U.S.
285, 289.  MORF V. BINGAMAN, 298 U.S. 407, 412.  WHILE ORDINARILY STATE
ACTION IS DEEMED VALID UNLESS THE CONTRARY APPEARS, WE HAVE HELD THAT
TO SUSTAIN A CHARGE BY THE STATE FOR THE USE OR PRIVILEGE OF USING ITS
ROADS FOR INTERSTATE TRANSPORTATION, IT MUST AFFIRMATIVELY APPEAR THAT
THE CHARGE IS EXACTED AS COMPENSATION OR TO PAY THE COST OF POLICING
ITS HIGHWAYS.  SPROUT V. SOUTH BEND, SUPRA.  INTERSTATE TRANSIT, INC.
V. LINDSEY, SUPRA, 186.  INGELS V. MORF, 300 U.S. 290, 294. 

THE SCOPE AND LANGUAGE OF THE CHALLENGED ENACTMENT UNMISTAKABLY
DISCLOSE INTENTION OF THE STATE TO REQUIRE PAYMENT OF COMPENSATION FOR
THE PRIVILEGE OF OPERATING OVER ITS ROADS THE SPECIFIED VEHICLES FOR
THE TRANSPORTATION OF PROPERTY.  IT CONTAINS NO HINT OF HOSTILITY TO
INTERSTATE COMMERCE OR OF PURPOSE TO IMPOSE A CHARGE ON THE PRIVILEGE
OR BUSINESS OF INTERSTATE TRANSPORTATION.  THE EXACTION IS NOT TO BE
DEEMED OFFENSIVE TO THE COMMERCE CLAUSE MERELY BECAUSE THE STATE, IN
THE CONDUCT OF ITS FISCAL AFFAIRS, CHOOSES TO USE PART OR ALL OF THE
PROCEEDS FOR PURPOSES OTHER THAN THE CONSTRUCTION, IMPROVEMENT, OR
MAINTENANCE OF ITS HIGHWAYS.  CLARK V. POOR, SUPRA, 557.  MORF V.
BINGAMAN, SUPRA, 412. 

THE AFFIDAVIT OF ILLEGALITY FAILS TO ALLEGE ANY FACTS TENDING TO SHOW
THAT A REASONABLE CHARGE FOR THE PRIVILEGE IS LESS THAN THE AMOUNT
EXACTED FOR IT.  APPELLANT DOES NOT CLAIM THAT THE PRIVILEGE TO OPERATE
FOR A YEAR 100 PIECES OF ITS EQUIPMENT OVER ANY OR ALL THE STATE'S
ROADS IS NOT WORTH $6,000, THE AMOUNT OF THE TAXES IN CONTROVERSY.  IT
DOES NOT DISCLOSE WHAT THE TAXES IN QUESTION AMOUNT TO PER TRUCK,
TRACTOR, OR TRAILER MILE, PER TON HAULED, OR PER TON MILE, NOR DOES IT
COMPARE THE AMOUNT OF THE TAXES WITH TOTAL OPERATING EXPENSES OR WITH
OPERATING REVENUES.  THE FIGURES FURNISHED INDICATE THAT THE TAX
IMPOSED ON ACCOUNT OF THE USE OF EACH VEHICLE AMOUNTS TO ABOUT 20 CENTS
A DAY AND THAT, ON APPELLANT'S BUSINESS IN 1936, IT WAS ABOUT EIGHT
MILLS PER VEHICLE MILE.  THE AMOUNTS PAID FOR LICENSE TAGS, PUBLIC
SERVICE TAGS, AND TAXES ON GASOLINE ARE WITHOUT SIGNIFICANCE IN THIS
CASE.  INTERSTATE BUSSES CORP. V. BLODGETT, 276 U.S. 245, 251-252.  THE
ALLEGATION TO THE EFFECT THAT IN 1936 MOTOR VEHICLES IN GEORGIA BORE,
IN LICENSE AND FUEL TAXES, OVER 62 PER CENT OF THE TOTAL TAXES
COLLECTED BY THE STATE IS TOO VAGUE FOR USE IN ANY ESTIMATE OF OR STUDY
FOR THE ASCERTAINMENT OF THE VALUE OF APPELLANT'S USE, OR OF ITS
PRIVILEGE TO USE, THE STATE'S ROADS. 

APPELLANT'S FAILURE TO DISCLOSE WHETHER IT FULLY AVAILED ITSELF OF
THE PRIVILEGE TO USE THE ROADS LEAVES THE FIGURES REFLECTING ACTUAL USE
WITHOUT FOUNDATION AND WORTHLESS AS A MEASURE OR INDICATION OF THE
VALUE OF THAT PRIVILEGE.  AND, IN VIEW OF THE SEEMINGLY LOW CHARGE FOR
THE OPERATION OF ITS VEHICLES PER DAY OR MILE, ITS FAILURE TO FURNISH
EVIDENTIARY DETAILS MATERIAL TO THE ISSUE OF REASONABLENESS MAKES
AGAINST ITS CONTENTION THAT THE CHALLENGED EXACTIONS SO EXCEED THE
WORTH OF THE GRANTED USE OF THE ROADS THAT THEY ARE TO BE DEEMED TAXES
ON THE PRIVILEGE OF CARRYING ON ITS BUSINESS OF INTERSTATE
TRANSPORTATION AND TENDS TO CONFIRM APPELLEE'S CLAIM THAT THEY
CONSTITUTE PAY FOR THE SPECIFIED OPERATIONS OVER THE STATE'S ROADS. 

WE FIND THAT THE CHALLENGED ENACTMENT DOES NOT VIOLATE THE COMMERCE
CLAUSE. 

2.  IS THE ACT REPUGNANT TO THE EQUAL PROTECTION CLAUSE?  APPELLANT
INSISTS THAT IT IS BECAUSE OF THE HIGHER TAXES IMPOSED ON THOSE WHO
HAUL FOR HIRE.  BUT IT FAILS TO SHOW LACK OF FACTS SUFFICIENT TO
JUSTIFY THE DISCRIMINATION.  IN THE ABSENCE OF PROOF TO THE CONTRARY,
IT IS TO BE ASSUMED THAT THE USE OF THE ROADS BY ONE HAULING NOT FOR
HIRE IS GENERALLY LIMITED TO TRANSPORTATION OF HIS OWN PROPERTY AS AN
INCIDENT TO HIS OCCUPATION OR BUSINESS AND THAT IT IS SUBSTANTIALLY
LESS THAN THAT OF ONE WHO IS ENGAGED IN THE BUSINESS OF COMMON CARRIER
THEREON FOR HIRE.  AS HAULING NOT FOR HIRE IS LIKELY TO BE OCCASIONAL
AND ACCESSORY AND AS HAULING FOR HIRE IS A BUSINESS THE SUCCESS OF
WHICH DEPENDS ON THE LOADING OF THE VEHICLES USED AND MILEAGE MADE BY
THEM, THE CLASSIFICATION COMPLAINED OF MAY NOT BE HELD ARBITRARY OR
WITHOUT REASONABLE FOUNDATION.  MORF V. BINGAMAN, SUPRA, 413.  AERO
TRANSIT CO. V. GEORGIA COMM'N, SUPRA, 290, 291.  HICKLIN V. CONEY, 290
U.S. 169, 176, 177.  CONTINENTAL BAKING CO. V. WOODRING, 286 U.S. 352,
370, 371, ET SEQ. BRADLEY V. PUBLIC UTILITIES COMM'N, 289 U.S. 92, 97. 
ALWARD V. JOHNSON, 282 U.S. 509, 513-514.  BEKINS VAN LINES V. RILEY,
280 U.S. 80, 82.  PACKARD V. BANTON, 264 U.S. 140, 144.  APPELLANT'S
CONTENTION THAT THE ACT VIOLATES THE EQUAL PROTECTION CLAUSE IS WITHOUT
MERIT.  AFFIRMED. 

FN1  LAWS 1937, P. 155. 

FN2  SEC. 206, MOTOR CARRIER ACT, 1935, C. 498, 49 STAT. 551, 49
U.S.C. SEC. 306. 

FN3  LAWS 1937, P. 914. 

FN4  CODE 1933, SEC. 92-7301. 

FN5  LAWS 1935, P. 157. 

FN6  CODE 1933, SEC. 68-623. 

FN7  LAWS 1937, P. 174. 

FN8  LAWS 1937, P. 180. 

FN9  THE ACT DEFINES "TRUCK" TO "INCLUDE ANY SELF-PROPELLED VEHICLE
DESIGNED  ...  FOR DRAWING OTHER VEHICLES, BUT HAVING NO PROVISION FOR
CARRYING LOADS INDEPENDENTLY, EXCEPT WHAT ARE COMMONLY KNOWN AS FARM
TRACTORS."  SEC. 2B. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





WELCH CO. V. NEW HAMPSHIRE, 306 U.S. 79 


NO. 295.  ARGUED JANUARY 3, 1939.  - DECIDED JANUARY 30, 1939.  - 89
N.H. 428 - 199 A. 886, AFFIRMED. 


A STATUTE OF NEW HAMPSHIRE FORBIDS THE OWNER OF ANY MOTOR VEHICLE USED
ON THE HIGHWAYS OF THE STATE IN THE TRANSPORTATION OF PROPERTY FOR
HIRE, TO REQUIRE OR PERMIT TO OPERATE SUCH VEHICLE A DRIVER WHO HAS
BEEN CONTINUOUSLY ON DUTY FOR MORE THAN 12 HOURS.  REGISTRATION
CERTIFICATES, WITHOUT WHICH NO COMMON OR CONTRACT CARRIER MAY LAWFULLY
OPERATE OVER THE HIGHWAYS OF THE STATE, MAY BE SUSPENDED OR REVOKED FOR
VIOLATIONS.  THE STATUTE EXEMPTS:  THOSE TRANSPORTING PRODUCTS OF THEIR
OWN MANUFACTURE OR LABOR; MOTOR VEHICLES NOT PRINCIPALLY ENGAGED IN THE
TRANSPORTATION OF PROPERTY FOR HIRE; AND CARRIERS OPERATING EXCLUSIVELY
IN A CITY OR TOWN OR WITHIN 10 MILES THEREOF, OR BEYOND THE 10 MILE
LIMIT ON NOT MORE THAN TWO TRIPS IN 30 DAYS.  HELD: 

1.  AS APPLIED TO A CARRIER WHICH WAS NOT EXEMPT, THE STATUTE WAS NOT
BY REASON OF ITS EXEMPTIONS REPUGNANT TO THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.  P. 82. 

2.  ENFORCEMENT OF THE STATUTE AGAINST AN INTERSTATE MOTOR CARRIER
FOR VIOLATIONS COMMITTED SUBSEQUENTLY TO THE PASSAGE OF THE FEDERAL
MOTOR CARRIER ACT, 1935, BUT PRIOR TO THE EFFECTIVE DATE (AND THE DATE
OF ISSUE) OF AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, PURSUANT
THERETO, PRESCRIBING MAXIMUM HOURS OF SERVICE OF EMPLOYEES OF SUCH
CARRIERS, WAS VALID.  P. 83. 

3.  CONGRESS WILL NOT BE DEEMED TO HAVE INTENDED THAT STATE
REGULATORY MEASURES RELATING TO SAFETY ON THE HIGHWAYS SHOULD BE
SUPERSEDED PRIOR TO THE EFFECTIVE DATE OF SIMILAR FEDERAL REGULATION. 
P. 85. 

H.P. WELCH CO. V. NEW HAMPSHIRE. 

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE. 

APPEAL FROM A JUDGMENT DISMISSING AN APPEAL FROM AN ORDER OF THE
PUBLIC SERVICE COMMISSION OF NEW HAMPSHIRE SUSPENDING THE REGISTRATION
CERTIFICATES OF A MOTOR CARRIER FOR VIOLATION OF THE STATE LAW. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

A STATUTE OF NEW HAMPSHIRE  FN1  DECLARES UNLAWFUL THE OPERATION ON
ITS ROADS OF MOTOR VEHICLES FOR SPECIFIED TRANSPORTATION BY DRIVERS WHO
HAVE BEEN CONTINUOUSLY ON DUTY FOR MORE THAN 12 HOURS.  BY THIS APPEAL
WE ARE CALLED ON TO DECIDE WHETHER, AS APPLIED IN THIS CASE, SECS. 3,
4, AND 8 ARE REPUGNANT TO THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, AND WHETHER SECS. 8 AND 11 WERE SUPERSEDED BY THE FEDERAL
MOTOR CARRIER ACT, 1935, SEC. 204,  FN2  AND REGULATIONS PRESCRIBED
UNDER IT BY THE INTERSTATE COMMERCE COMMISSION. 

THE NEW HAMPSHIRE ACT DECLARES THAT THE NUMBER OF MOTOR VEHICLES
OPERATED BY CARRIERS FOR HIRE HAS MADE REGULATION NECESSARY TO THE END
THAT ITS HIGHWAYS MAY BE SAFER FOR USE BY THE GENERAL PUBLIC.  SEC. 1. 
IT REQUIRES COMMON AND CONTRACT CARRIERS BETWEEN POINTS WITHIN THE
STATE TO REGISTER THEIR TRUCKS WITH THE PUBLIC SERVICE COMMISSION. 
SEC. 2.  CONTRACT CARRIERS INCLUDE THOSE, OTHER THAN COMMON CARRIERS,
WHO HAUL FOR HIRE BY MOTOR VEHICLE ON ANY ROAD OF THE STATE.  SEC. 3. 
EXEMPTED FROM THE CHALLENGED REGULATION ARE THOSE TRANSPORTING PRODUCTS
OF THEIR OWN MANUFACTURE OR LABOR (SEC. 3), AND MOTOR VEHICLES NOT
PRINCIPALLY ENGAGED IN THE TRANSPORTATION OF PROPERTY FOR HIRE OR
OPERATING EXCLUSIVELY IN A CITY OR TOWN OR WITHIN 10 MILES OF ITS
LIMITS OR BEYOND THE 10-MILE LIMIT ON NOT MORE THAN TWO TRIPS IN 30
DAYS.  SEC. 4. 

OPERATE, OR FOR THE OWNER THEREOF TO REQUIRE OR PERMIT ANY DRIVER TO
OPERATE, ANY MOTOR VEHICLE FOR THE TRANSPORTATION OF PROPERTY FOR HIRE
ON THE HIGHWAYS OF THIS STATE WHEN THE DRIVER HAS BEEN CONTINUOUSLY ON
DUTY FOR MORE THAN TWELVE HOURS, AND AFTER A DRIVER HAS BEEN
CONTINUOUSLY ON DUTY FOR TWELVE HOURS IT SHALL BE UNLAWFUL FOR HIM OR
FOR THE OWNER OF THE VEHICLE TO PERMIT HIM TO OPERATE ANY SUCH MOTOR
VEHICLE ON THE HIGHWAYS OF THIS STATE UNTIL HE SHALL HAVE HAD AT LEAST
EIGHT CONSECUTIVE HOURS OFF DUTY."  SECTION 11 PROVIDES THAT FOR
VIOLATIONS OF THE ACT THE COMMISSION SHALL HAVE AUTHORITY AFTER NOTICE
AND HEARING, TO SUSPEND OR REVOKE ANY REGISTRATION CERTIFICATE. 

APPELLANT IS A MASSACHUSETTS CORPORATION DOING INTRASTATE AND
INTERSTATE BUSINESS AS A COMMON AND CONTRACT CARRIER OF FREIGHT FOR
HIRE BY MOTOR VEHICLES OVER PUBLIC HIGHWAYS IN THAT STATE AND IN NEW
HAMPSHIRE.  APPROXIMATELY 99 PER CENT OF ITS BUSINESS IS INTERSTATE. 
IT HAS TERMINALS AT BOSTON IN MASSACHUSETTS, AND AT MANCHESTER,
CONCORD, AND CLAREMONT IN NEW HAMPSHIRE.  IN 1937 IT OBTAINED FROM THE
NEW HAMPSHIRE COMMISSION REGISTRATION CERTIFICATES FOR 20 TRUCKS. 
AFTER NOTICE AND HEARING, THE COMMISSION, IN A DECISION FILED AS OF
DECEMBER 11, 1937, HELD APPELLANT HAD VIOLATED THE PROVISIONS OF SEC. 8
AND ORDERED THAT ITS CERTIFICATES BE SUSPENDED FOR FIVE DAYS. 
APPELLANT APPEALED TO THE STATE SUPREME COURT.  THAT COURT UPHELD THE
CHALLENGED PROVISIONS AND DISMISSED THE APPEAL.  89 N.H. 428; 199 A.
886. 

1.  SECTIONS 3, 4, AND 8 ARE NOT REPUGNANT TO THE EQUAL PROTECTION
CLAUSE.  THE STATE COURT FOUND THAT THE PURPOSE OF SEC. 8 IS "TO
PROTECT USERS OF THE HIGHWAYS OF THIS STATE FROM THE DANGER LIKELY TO
RESULT TO THEM FROM THE OPERATION THEREON OF TRUCKS UNDER THE CONTROL
OF DRIVERS SUFFERING FROM THE EFFECTS OF FATIGUE."  APPELLANT'S
CONTENTION IS THAT THE DISCRIMINATION BETWEEN DRIVERS OF MOTOR CARRIERS
FOR HIRE SUBJECT TO SEC. 8 AND THOSE EXEMPTED BY SECS. 3 AND 4, HAS NO
FAIR OR SUBSTANTIAL RELATION TO HIGHWAY SAFETY.  IT SUGGESTS, AND WE
MAY ASSUME, THAT THE ROADS OF NEW HAMPSHIRE ARE EXTENSIVELY USED FOR
TRANSPORTATION BY TRUCKS NOT REGULATED BY SEC. 8; THAT DRIVERS OF THEM
ARE JUST AS SUSCEPTIBLE TO FATIGUE FROM LONG HOURS OF CONTINUOUS
OPERATION AS ARE THOSE OPERATING THE TRUCKS USED BY APPELLANT AND OTHER
COMMON CARRIERS FOR HIRE, AND THAT THE DANGERS ATTRIBUTABLE TO FATIGUED
DRIVERS ARE THE SAME IN ONE CLASS OF SERVICE AS IN ANOTHER.  APPELLANT
HAS FAILED TO SHOW THAT, IN OPERATIONS TO WHICH SEC. 8 APPLIES,
CONTINUOUS DRIVING FOR MORE THAN 12 HOURS IS NOT SO MUCH MORE PREVALENT
THAN IN THOSE EXEMPTED (SECS. 3, 4) AS TO CONSTITUTE A REASONABLE BASIS
FOR THE DIFFERENTIATION.  WE ARE OF OPINION THAT, FOR REASONS GIVEN
ABOVE, THOSE STATED BY THE STATE SUPREME COURT IN THIS CASE AND BY THIS
COURT IN DIXIE OHIO EXPRESS CO. V. GEORGIA COMM'N, ANTE, P. 72, THE
CLASSIFICATION IN QUESTION DOES NOT CONFLICT WITH THE RULE OF EQUAL
PROTECTION. 

2.  AS APPLICABLE TO THE VIOLATIONS OF THE STATE LAW FOUND TO HAVE
BEEN COMMITTED BY APPELLANT, SECS. 8 AND 11 WERE NOT SUPERSEDED BY THE
FEDERAL MOTOR CARRIER ACT, 1935, OR THE REGULATIONS MADE UNDER IT BY
THE INTERSTATE COMMERCE COMMISSION. 

THAT ACT BECAME LAW AUGUST 9, 1935.  UNDER THE CAPTION "GENERAL
DUTIES AND POWERS OF THE COMMISSION," SEC. 204(A) DECLARES:  "IT SHALL
BE THE DUTY OF THE COMMISSION  ...  TO REGULATE" COMMON AND CONTRACT
CARRIERS BY "MOTOR VEHICLE  ...  AND TO THAT END THE COMMISSION MAY
ESTABLISH REASONABLE REQUIREMENTS WITH RESPECT TO  ...  QUALIFICATIONS
AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES, AND SAFETY OF OPERATION AND
EQUIPMENT."  BY ORDER MADE UNDER AUTHORITY OF THAT SECTION DECEMBER 29,
1937, THE COMMISSION PRESCRIBED REGULATIONS AS TO MAXIMUM HOURS OF
SERVICE OF DRIVERS OF MOTOR VEHICLES OPERATED IN INTERSTATE COMMERCE BY
COMMON AND CONTRACT CARRIERS.  FN3  THESE REGULATIONS WERE MODIFIED
JULY 12, 1938 FN4  AND THEIR EFFECTIVE DATE HAS BEEN POSTPONED TO
JANUARY 31, 1939.  FN5  WITH EXCEPTIONS THAT NEED NOT BE STATED HERE,
THEY DECLARE THAT NO COMMON CARRIER SHALL PERMIT OR REQUIRE ANY DRIVER
TO REMAIN ON DUTY FOR MORE THAN 60 HOURS A WEEK OR MORE THAN 10 HOURS
IN ANY PERIOD OF 24 CONSECUTIVE HOURS.  FN6 

APPELLANT DOES NOT SUGGEST THAT PRIOR TO CONGRESSIONAL ACTION THE
STATE WAS WITHOUT POWER, FOR PROTECTION OF PERSONS AND PROPERTY, TO
REGULATE USE OF ITS ROADS AS PROVIDED IN SEC. 8, AND TO ENFORCE
OBEDIENCE IN ACCORDANCE WITH SEC. 11.  COOLEY V. BOARD OF WARDENS, 12
HOW.  299, 320.  SMITH V. ALABAMA, 124 U.S. 465.  CLEVELAND, C., C. &
ST. L. RY. CO. V. ILLINOIS, 177 U.S. 514.  THE VIOLATIONS FOR WHICH THE
STATE COMMISSION SUSPENDED APPELLANT'S REGISTRATION CERTIFICATES
OCCURRED AFTER THE EFFECTIVE DATE OF THE FEDERAL ACT AND BEFORE THE
INTERSTATE COMMERCE COMMISSION MADE ITS ORDER.  WITHOUT SO DECIDING, WE
ASSUME, SO FAR AS CONCERNS THE PERIODS OF CONTINUOUS SERVICE CONDEMNED
BY THE STATE COMMISSION, THAT WHEN THE FEDERAL REGULATIONS TAKE EFFECT
THEY WILL OPERATE TO SUPERSEDE THE CHALLENGED PROVISIONS OF THE STATE
STATUTE.  THEN, THE SOLE QUESTION IS WHETHER CONGRESS INTENDED THAT
FROM THE TIME OF THE FEDERAL ENACTMENT UNTIL EFFECTIVE ACTION BY THE
COMMISSION, THERE SHOULD BE NO REGULATION OF PERIODS OF CONTINUOUS
OPERATION BY DRIVERS OF MOTOR VEHICLES HAULING IN INTERSTATE COMMERCE. 
OUR DECISIONS PROVIDE NO FORMULA FOR DISCOVERING IMPLIED EFFECT OF
FEDERAL STATUTES UPON STATE MEASURES SUCH AS THAT UNDER CONSIDERATION. 
HERE, THE WAY IS MADE CLEAR BY THE LANGUAGE AND CONTEXT CONSIDERED IN
CONNECTION WITH EXISTING CONDITIONS.  SECTION 204(A) DEFINITELY IMPOSES
UPON THE COMMISSION THE DUTY TO "REGULATE" BUT MERELY AUTHORIZES IT TO
ESTABLISH REASONABLE REQUIREMENTS WITH RESPECT TO, INTER ALIA,
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE OF EMPLOYEES AND SAFETY OF
OPERATION AND EQUIPMENT.  THE DISTINCTION INTENDED BETWEEN DUTY IMPOSED
AND ACTION PERMITTED IS MORE STRIKING IN VIEW OF THE MATTERS THAT,
ALONG WITH QUALIFICATIONS AND HOURS OF SERVICE OF DRIVERS, ARE
COMMITTED TO THE DISCRETION OF THE COMMISSION.  THEY INCLUDE
TRANSPORTATION OF BAGGAGE AND EXPRESS, UNIFORM SYSTEMS OF ACCOUNTS,
RECORDS, AND REPORTS, AND PRESERVATION OF RECORDS. 

THE ROADS BELONG TO THE STATE.  THERE IS NEED OF LOCAL SUPERVISION OF
OPERATION OF MOTOR VEHICLES TO PREVENT COLLISIONS, TO SAFEGUARD
PEDESTRIANS, AND THE LIKE.  UNQUESTIONABLY, REASONABLE REGULATION OF
PERIODS OF CONTINUOUS DRIVING IS AN APPROPRIATE MEASURE.  IN VIEW OF
THE EFFORTS OF GOVERNMENTAL AUTHORITIES EVERYWHERE TO MITIGATE THE
DESTRUCTION OF LIFE, LIMB AND PROPERTY RESULTING FROM THE USE OF MOTOR
VEHICLES, IT CANNOT BE INFERRED THAT CONGRESS INTENDED TO SUPERSEDE ANY
STATE SAFETY MEASURE PRIOR TO THE TAKING EFFECT OF A FEDERAL MEASURE
FOUND SUITABLE TO PUT IN ITS PLACE.  ITS PURPOSE TO DISPLACE THE LOCAL
LAW MUST BE DEFINITELY EXPRESSED.  MINTZ V. BALDWIN, 289 U.S. 346,
350.  THE RULE APPLICABLE IS CLEARLY STATED IN ILLINOIS CENTRAL R. CO.
V. PUBLIC UTILITIES COMM'N, 245 U.S. 493, 510:  "IN CONSTRUING FEDERAL
STATUTES ENACTED UNDER THE POWER CONFERRED BY THE COMMERCE CLAUSE OF
THE CONSTITUTION  ...  IT SHOULD NEVER BE HELD THAT CONGRESS INTENDS TO
SUPERSEDE OR SUSPEND THE EXERCISE OF THE RESERVED POWERS OF A STATE,
EVEN WHERE THAT MAY BE DONE, UNLESS, AND EXCEPT SO FAR AS, ITS PURPOSE
TO DO SO IS CLEARLY MANIFESTED."  WE HAVE FREQUENTLY APPLIED THAT
PRINCIPLE.  SEE E.G. REID V. COLORADO, 187 U.S. 137, 148.  MISSOURI
PACIFIC RY. CO. V. LARABEE MILLS CO. 211 U.S. 612, 621, ET SEQ.
MISSOURI, K. & T. RY. CO. V. HARRIS, 234 U.S. 412, 418-419.  SMITH V.
ILLINOIS BELL TELEPHONE CO., 282 U.S. 133, 139.  NORTHWESTERN BELL TEL.
CO. V. NEBRASKA RY. COMM'N, 297 U.S. 471, 478.  KELLY V. WASHINGTON,
302 U.S. 1, 10, ET SEQ. APPELLANT CITES NORTHERN PACIFIC RY. CO. V.
WASHINGTON, 222 U.S. 370, 378; ERIE RAILROAD CO. V. NEW YORK, 233 U.S.
671; OREGON-WASHINGTON CO. V. WASHINGTON, 270 U.S. 87; NAPIER V.
ATLANTIC COAST LINE, 272 U.S. 605, 613; AND MISSOURI PACIFIC R. CO. V.
PORTER, 273 U.S. 341, 345.  IN EACH, THE FACTS DIFFER SO WIDELY FROM
THOSE OF THE CASE BEFORE US THAT NO DISCUSSION IS REQUIRED TO SHOW THAT
IT IS NOT IN POINT. 

PLAINLY CONGRESS BY MERE GRANT OF POWER TO THE INTERSTATE COMMERCE
COMMISSION DID NOT INTEND TO SUPERSEDE STATE POLICE REGULATIONS
ESTABLISHED FOR THE PROTECTION OF THE PUBLIC USING STATE HIGHWAYS. 
AFFIRMED. 

FN1  LAWS 1933, C. 106 AS AMENDED BY C. 169. 

FN2  49 STAT. 546; 49 U.S.C. SEC. 304. 

FN3  3 M.C.C. 665. 

FN4  EX PARTE NO. MC-2, JULY 12, 1938. 

FN5  EX PARTE NO. MC-2, DECEMBER 22, 1938. 

FN6  EX PARTE NO. MC-2, JULY 12, 1938(RULE 3(A) AND (B)). 
..END :















MACKAY CO. V. RADIO CORP., 306 U.S. 86 


NO. 127.  ARGUED DECEMBER 14, 15, 1938.  - DECIDED JANUARY 30, 1939.  -
96 F.2D 587, REVERSED. 


1.  CARTER PATENT, NO. 1,974,387, FOR A DIRECTIVE ANTENNA SYSTEM FOR
USE IN RADIO COMMUNICATION, HELD NOT INFRINGED BY PETITIONER'S ANTENNA
STRUCTURES.  PP. 88, 101. 

CLAIMS 15 AND 16 ARE INVALID SO FAR AS THEY CLAIM ANTENNAE OF WIRE
LENGTHS INTERMEDIATE OF MULTIPLES OF HALF WAVE LENGTHS.  AND SO FAR AS
THE PATENT DISCLOSES AND CLAIMS INVENTION OF A V ANTENNA STRUCTURE MADE
IN CONFORMITY TO THE ABRAHAM FORMULA, PETITIONER'S STRUCTURES DO NOT
INFRINGE, FOR NONE OF THEM CONFORMS TO THE ABRAHAM FORMULA.  ONE HAS
WIRES WHICH ARE AN INTEGRAL NUMBER OF HALF WAVE LENGTHS LONG, BUT USES
AN ANGLE 10% SMALLER THAN THAT DERIVABLE FROM THE ABRAHAM FORMULA; ALL
OF THE OTHERS HAVE WIRES WHICH ARE NOT MULTIPLES OF HALF WAVE LENGTHS
LONG AND ANGLES NOT DERIVABLE FROM THE FORMULA. 

2.  THE DISCLOSURE OF THE CARTER PATENT WAS THAT THE BEST DIRECTIONAL
RADIO PROPAGATION BY THE V TYPE ANTENNA IS OBTAINED IN THE DIRECTION OF
ITS BISECTOR, WITH A STRUCTURE IN WHICH THE ANGLE OF THE WIRES, THEIR
LENGTH, AND THE LENGTH OF WAVE PROPAGATED ARE IN A DEFINITE
MATHEMATICAL RELATIONSHIP EXPRESSED BY A FORMULA DISCLOSED IN THE
SPECIFICATIONS.  THE FORMULA SHOWS THAT THE APPROPRIATE ANGLE BETWEEN
EACH OF THE ANTENNA WIRES AND THEIR BISECTOR DEPENDS UPON THE WAVE
LENGTH TO BE PROPAGATED AND THE WIRE LENGTH, WHICH IS A MULTIPLE OF
HALF WAVE LENGTHS.  THE FORMULA HAD BEEN DEVELOPED AND PUBLISHED BY
ABRAHAM THIRTY YEARS PREVIOUSLY.  LINDENBLAD HAD TAUGHT THAT WITH AN
ARRANGEMENT OF ANTENNA WIRES AT AN ANGLE, RADIATION WILL OCCUR IN THE
DIRECTION OF THE BISECTOR OF THE ANGLE AND THAT THE PREFERRED ANGLE WAS
DEPENDENT UPON AN INDICATED RELATIONSHIP BETWEEN WIRE LENGTH AND WAVE
LENGTH.  CARTER'S INVENTION THEREFORE, IF IT WAS INVENTION, CONSISTED
IN TAKING THE ANGLE OF THE ABRAHAM FORMULA AS THE ANGLE BETWEEN EACH
WIRE OF THE V ANTENNA AND ITS BISECTOR, AND THUS ESTABLISHING ALONG THE
BISECTOR THE GREATEST DIRECTIONAL RADIO ACTIVITY.  THE EMPIRICAL
FORMULA OF THE SPECIFICATIONS AND CLAIMS 15 AND 16, DERIVED GRAPHICALLY
FROM THE ABRAHAM FORMULA, DISCLOSED NO INVENTION OTHER THAN THE
APPLICATION OF THE ABRAHAM FORMULA TO THE V ANTENNA WHEN WAVE LENGTH
AND WIRE LENGTH ARE KNOWN.  HELD, ASSUMING THAT IT WAS MORE THAN THE
SKILL OF THE ART TO COMBINE THE TEACHING OF ABRAHAM WITH THAT OF
LINDENBLAD AND OTHERS WHO HAD POINTED OUT THAT THE ARRANGEMENT OF THE
WIRES AT AN ANGLE ENHANCED DIRECTIONAL RADIO ACTIVITY ALONG THEIR
BISECTOR, THEN THE INVENTION WAS A NARROW ONE, CONSISTING OF A
STRUCTURE CONFORMING TO THE TEACHINGS OF THE ABRAHAM FORMULA AS TO
ANGLE AND WIRE LENGTH RELATIVE TO WAVE LENGTH, AND IS TO BE STRICTLY
CONSTRUED WITH REGARD BOTH TO PRIOR ART AND TO ALLEGED INFRINGING
DEVICES.  CARTER, AVOIDING PRIOR ART BY DEFINING HIS ANGLE FOR ANTENNAE
WITH WIRES OF PARTICULAR WAVE LENGTHS WITH MATHEMATICAL PRECISION, CAN
NOT DISCARD THAT PRECISION TO ESTABLISH INFRINGEMENT.  PP. 94, 102. 

3.  THE APPLICATION OF CARTER, AT LEAST BEFORE THE AMENDMENTS
INTRODUCED SUBSEQUENTLY TO THE COMMENCEMENT OF THE PRESENT LITIGATION,
CAN NOT BE CONSTRUED AS EMBRACING STRUCTURES NOT CONFORMING TO THE
ABRAHAM FORMULA.  AND THE ATTEMPT BY AMENDMENT TO EXTEND THE CLAIMS,
BASED ON THE APPLICATION OF THE EMPIRICAL FORMULA (DERIVED FROM THE
ABRAHAM FORMULA) TO WIRE LENGTHS NOT MULTIPLES OF HALF WAVE LENGTHS,
MUST FAIL, BECAUSE IT INVOLVED A DEPARTURE FROM WHAT CARTER'S
APPLICATION HAD DESCRIBED AS HIS INVENTION, AND A CONTRADICTION OF IT.
P. 98. 

4.  IT IS UNNECESSARY IN THIS CASE TO DECIDE THE FURTHER QUESTION
WHETHER PETITIONER'S STRUCTURES AVOID INFRINGEMENT BECAUSE THE
DIRECTION OF THEIR PRINCIPAL RADIO ACTIVITY IS NOT IN THE PLANE OF THE
WIRES.  P. 102. 

MACKAY RADIO & TELEGRAPH CO. V. RADIO CORPORATION OF AMERICA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 305 U.S. 582, TO REVIEW A DECREE WHICH MODIFIED AND
REVERSED A DECREE OF THE DISTRICT COURT, 16 F.SUPP.  610, DISMISSING
THE BILL IN A SUIT TO ENJOIN INFRINGEMENTS OF PATENTS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT* . 

*OPINION REPORTED AS AMENDED BY ORDER OF MARCH 6, 1939, POST, P.
618. 

THE QUESTIONS PRESENTED FOR DECISION BY THE PETITION FOR CERTIORARI
ARE WHETHER THE CARTER PATENT, NO. 1,974,387, OF SEPTEMBER 18, 1934,
FOR A DIRECTIVE ANTENNA SYSTEM FOR USE IN RADIO COMMUNICATION, IS VALID
AND IS INFRINGED BY ANTENNAE STRUCTURES USED BY PETITIONER IN SUCH
COMMUNICATION. 

RESPONDENT BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT FOR EASTERN
NEW YORK TO ENJOIN INFRINGEMENTS OF FOUR PATENTS RELATING TO RADIO
ANTENNAE OR THEIR OPERATION.  TWO WERE THOSE OF CARTER AND TWO THOSE OF
LINDENBLAD.  OF THESE ONLY THE SECOND LINDENBLAD PATENT, NO. 1,927,522,
OF SEPTEMBER 19, 1933, FOR AN ANTENNA FOR RADIO COMMUNICATION, IS OF
PRESENT IMPORTANCE.  WHEN THE SUIT WAS BEGUN THE APPLICATION FOR THE
THIRD CARTER PATENT, WITH WHICH WE ARE PRESENTLY CONCERNED, WAS
PENDING.  AFTER PETITIONER HAD ANSWERED AND RESPONDENT, AS A RESULT OF
THE LITIGATION, HAD ACQUIRED KNOWLEDGE OF THE PARTICULARS OF THE
STRUCTURE AND OPERATION OF PETITIONER'S ANTENNAE, CARTER, RESPONDENT'S
ASSIGNOR, AMENDED THE STATEMENT OF HIS INVENTION IN HIS APPLICATION SO
AS IN TERMS TO EMBRACE A DIFFERENTIATING FEATURE OF PETITIONER'S
STRUCTURES.  AFTER THIS PATENT WAS ISSUED RESPONDENT WAS PERMITTED TO
FILE A SUPPLEMENTAL BILL CHARGING INFRINGEMENT OF IT.  THE SUITS WERE
CONSOLIDATED, AND THE PARTIES PROCEEDED TO TRIAL ON THE ISSUES OF THE
VALIDITY AND INFRINGEMENT OF ALL FIVE PATENTS. 

AFTER TAKING THE VOLUMINOUS TESTIMONY OF NUMEROUS WITNESSES, THE
TRIAL COURT FOUND THAT NONE OF THE PATENTS IN SUIT WAS INFRINGED AND
DECREED THAT THE SUITS BE DISMISSED.  16 F.SUPP.  610.  IT HELD THAT
NONE OF THEM WAS A PIONEER PATENT; THAT NONE HAD BEEN EMPLOYED BY ANY
ONE; THAT RESPONDENT'S COMMERCIAL STRUCTURES DID NOT FOLLOW THE
TEACHINGS OF ANY OF THEM; AND THAT CONSEQUENTLY THEY WERE NOT ENTITLED
TO A BROAD CONSTRUCTION.  WITH RESPECT TO THE CARTER PATENT IN SUIT IT
SAID:  "THE DISCLOSURE AND THE CLAIMS WERE BROADENED NOT ONLY CONTRARY
TO THEIR ORIGINAL TERMINOLOGY BUT TO THEIR SPIRIT AS WELL."  AND "  ...
BY THOSE AMENDMENTS THE PLAINTIFF ATTEMPTED TO MOLD THE THIRD CARTER
PATENT BOTH AS TO DISCLOSURE AND CLAIMS, TO COVER DEFENDANT'S ANTENNA
SYSTEMS.  THIS COULD NOT LAWFULLY BE DONE." 

ON APPEAL FROM SO MUCH OF THE DECREE AS RELATED TO THE SECOND
LINDENBLAD PATENT AND THE THIRD CARTER PATENT, THE COURT OF APPEALS FOR
THE SECOND CIRCUIT AFFIRMED AS TO THE LINDENBLAD PATENT, BUT REVERSED
AS TO THE CARTER PATENT, HOLDING CLAIMS 15 AND 16 VALID AND INFRINGED. 
96 F.2D 587.  WE GRANTED CERTIORARI, 305 U.S. 582, BECAUSE OF THE
NATURE AND IMPORTANCE OF THE CASE, ON A PETITION WHICH URGED AS GROUNDS
FOR ITS ALLOWANCE THAT VALIDITY AND INFRINGEMENT OF THE CARTER PATENT
WERE IN DOUBT AND THAT, AS PETITIONER IS THE ONLY COMPETITOR OF
RESPONDENT IN THE BUSINESS OF WORLD WIDE PUBLIC RADIO COMMUNICATION,
FURTHER LITIGATION, RESULTING IN CONFLICT OF DECISION AMONG CIRCUITS,
WAS IMPROBABLE. 

IN ORDINARY BROADCASTING, RADIO WAVES ARE PROJECTED IN ALL DIRECTIONS
FROM THE SENDING STATION.  IN RADIO COMMUNICATION IT IS ADVANTAGEOUS
AND HAS LONG BEEN THE PRACTICE TO USE A DIRECTIVE ANTENNA BY WHICH THE
WAVES OF RADIO ACTIVITY EMANATING FROM IT ARE PROJECTED AS A BEAM IN
THE DIRECTION OF THE RECEIVING STATION.  IN PRACTICE THE BEAM IS
DIRECTED AT AN ANGLE FROM THE EARTH'S SURFACE TOWARD THE IONIZED LAYER
OF THE STRATOSPHERE, OR HEAVISIDE LAYER, FROM WHICH THE BEAM IS
DEFLECTED TOWARD THE EARTH'S SURFACE IN THE COMPASS DIRECTION OF THE
RECEIVING STATION.  IN MORE RECENT YEARS IT HAS BEEN THE PRACTICE TO
USE RELATIVELY SHORT WAVE LENGTHS FOR RADIO COMMUNICATION. 

THE RADIO WAVES ARE GENERATED AT THE SENDING STATION BY FEEDING AN
OSCILLATING ELECTRIC CURRENT OF APPROPRIATE CHARACTER INTO THE WIRE OR
WIRES OF THE ANTENNA.  THE ELECTRIC WAVES IN THE WIRES ENERGIZE RADIO
ACTIVITY, WHICH THE ANTENNA PROJECTS AS RADIO WAVES TOWARD THE
RECEIVING STATION.  BY MODULATING OR INTERRUPTING THE CURRENT,
CORRESPONDING MODULATION OR INTERRUPTION OF THE RADIO WAVES IS
EFFECTED, WHICH MAY BE USED AS A MEANS OF TRANSMITTING ANY DESIRED
SIGNAL.  THE WAVES, AS MODULATED, IMPINGE ON THE ANTENNA OF THE
RECEIVING STATION DEVISED TO RECEIVE AND UTILIZE THEM AS A MEANS OF
CONTROLLING, WITH CORRESPONDING MODULATION, AN ELECTRIC CURRENT WHICH
IN TURN ACTUATES A MECHANISM CONTRIVED TO GIVE AUDIBLE OR VISUAL
EXPRESSION TO THE TRANSMITTED SIGNAL. 

THE EFFECTIVE PART OF THE ANTENNA IS A COPPER WIRE FROM WHICH THE
RADIO WAVES ARE RADIATED, SUPPORTED ON TOWERS OR POLES AT A HEIGHT
ABOVE THE GROUND DEPENDING ON THE WAVE LENGTH USED.  THE WIRE MAY BE
PARALLEL WITH THE EARTH, OR VERTICAL, OR ARRANGED AT AN ANGLE,
DEPENDING UPON THE FUNCTION TO BE PERFORMED.  BEFORE CARTER, ANTENNAE
OF TWO OR MORE WIRES IN VARYING ARRANGEMENT HAD BEEN USED.  THE SECOND
LINDENBLAD PATENT SHOWED AN ANTENNA OF TWO WIRES ARRANGED AT AN ANGLE
IN THE FORM OF A V OR AN X, AND IT POINTED OUT THAT IN SUCH AN
ARRANGEMENT RADIATION WILL TAKE PLACE IN THE DIRECTION OF THE AXIS OR
BISECTOR OF THE ANGLE OF THE DIVERGING WIRES, AND THAT "THE SPACING AT
THE OPEN END (OF THE WIRES), WHILE VARIABLE OVER A GREAT RANGE, SHOULD
BE IN THE NEIGHBORHOOD OF A FIFTH OF THE LENGTH, AND THE LENGTH OF EACH
ANTENNA SECTION SHOULD BE OF THE ORDER OF MAGNITUDE OF FIVE TO TEN
WAVES LONG." 

WHILE SUCH AN ARRANGEMENT PROJECTS THE RADIO WAVES PRINCIPALLY IN TWO
DIRECTIONS ALONG THE BISECTOR OF THE ANGLE OF THE ANTENNA WIRES, THE
PRIOR ART HAD MADE USE OF AN ARRANGEMENT OF WIRES, PARALLEL TO THE
WIRES OF THE ANGULAR ANTENNA, AS A "REFLECTOR" BY WHICH THE RADIATION
WAS PROJECTED AS A BEAM IN ONE DIRECTION AWAY FROM THE REFLECTOR AND
ALONG THE BISECTOR OF THE ANGLE OF THE WIRES. 

THE PRESENT CARTER PATENT IS FOR AN "ANTENNA SYSTEM UTILIZING
STANDING WAVE PHENOMENA."  LIKE THE SECOND LINDENBLAD PATENT, IT IS
CONCERNED WITH A V ANTENNA BY WHICH THE PRINCIPAL RADIATION IS DIRECTED
IN THE PLANE OF THE WIRES ALONG THE BISECTOR OF THEIR ANGLE.  THE
DISCLOSURE OF THE PATENT, IN WHICH THE COURT BELOW FOUND INVENTION, WAS
THAT THE BEST DIRECTIONAL RADIO PROPAGATION BY THE V TYPE ANTENNA IS
OBTAINED WITH A STRUCTURE IN WHICH THE ANGLE OF THE WIRES, THEIR
LENGTH, AND THE LENGTH OF WAVE PROPAGATED ARE IN A DEFINITE
MATHEMATICAL RELATIONSHIP EXPRESSED BY A FORMULA DISCLOSED IN THE
SPECIFICATIONS. 

IN EXPLAINING HIS INVENTION, CARTER POINTED OUT THAT "IT IS KNOWN
THAT WHEN A WIRE HAVING A LENGTH GREATER THAN THE OPERATING WAVE LENGTH
IS EXCITED IN SUCH MANNER THAT STANDING WAVES ARE PRODUCED THEREON,
RADIATION WILL OCCUR PRINCIPALLY IN THE DIRECTION OF SYMMETRICAL CONES
HAVING THEIR APICES AT THE CENTER OF THE WIRE.  SUCH IS THE CASE WITH A
WIRE HAVING A LENGTH EQUAL TO A PLURALITY OF ONE-HALF WAVE LENGTHS AT
THE OPERATING FREQUENCY.  THE RADIATION PATTERN PRODUCED IN SUCH
INSTANCE APPEARS, IN CROSS SECTION, IN THE FORM OF SYMMETRICAL CONES
ABOUT THE WIRE.  THE PRESENT INVENTION, WHICH MAKES USE OF THESE
PHENOMENA, IN ITS MOST SIMPLE ASPECT EMPLOYS A PAIR OF OPEN-ENDED WIRES
ENERGIZED IN PHASE OPPOSITION TO HAVE STANDING WAVES THROUGHOUT THE
LENGTH OF THE WIRES, THE WIRES HAVING SUCH ANGULAR RELATION WITH
RESPECT TO EACH OTHER AS TO OBTAIN A HIGHLY DIRECTIONAL, EFFICIENT AND
SIMPLE ANTENNA SYSTEM."  FN1 

THE PATENT STATES THE MATHEMATICAL FORMULA BY WHICH THE DESIRED
RELATIONSHIP IS SECURED, WHICH SHOWS THAT THE APPROPRIATE ANGLE BETWEEN
EACH OF THE ANTENNA WIRES AND THEIR BISECTOR DEPENDS UPON THE WAVE
LENGTH TO BE PROPAGATED AND THE USE OF ANTENNA WIRES OF A LENGTH WHICH
IS A MULTIPLE OF HALF WAVE LENGTHS.  FN2 

THE SIGNIFICANCE OF THE FORMULA LIES IN THE FACT THAT THE ANGLE
BETWEEN THE WIRE AND THE DIRECTION OF GREATEST RADIO ACTIVITY IS A
TRIGONOMETRICAL FUNCTION OF TWO VARIABLES, THE WAVE LENGTH USED AND THE
"NUMBER OF HALF WAVE LENGTHS CONTAINED IN THE WIRE," AND THAT, AS THE
APPLICATION STATED, THE USE OF THE FORMULA IN PRACTICE PRESUPPOSES THE
USE OF A WIRE WHOSE LENGTH IS A MULTIPLE OF HALF WAVE LENGTHS.  THE
PATENT THEN EXPLAINS THAT THE ANGLE $* OF THE FORMULA IS THE ANGLE
BETWEEN EACH WIRE OF THE V ANTENNA AND ITS BISECTOR - IN OTHER WORDS,
THAT THE ANGLE OF THE WIRES OF THE ANTENNA IS TWICE $* AND HENCE, LIKE
THE ANGLE OF THE FORMULA, IS A FUNCTION OF THE WAVE LENGTH AND THE
LENGTH OF THE WIRES, WHICH ARE EACH A MULTIPLE OF HALF WAVE LENGTHS
LONG. 

CARTER DID NOT INVENT THE FORMULA.  IT HAD BEEN DEVELOPED BY ABRAHAM
AND PUBLISHED IN A SCIENTIFIC JOURNAL THIRTY YEARS BEFORE.  ANNALEN DER
PHYSIK, 1898, PHYSIKALISCHE ZEITSCHRIFT, MARCH 2, 1901.  ABRAHAM'S
FORMULA EXPRESSED THE SCIENTIFIC TRUTH THAT WHEN RADIO ACTIVITY IS
PROJECTED FROM A CHARGED WIRE OF FINITE LENGTH, I.E., ONE HAVING
STANDING WAVES, AND HAVING A LENGTH OF A MULTIPLE OF HALF WAVE LENGTHS,
THE ANGLE BETWEEN THE DIRECTION OF THE PRINCIPAL RADIO ACTIVITY AND THE
WIRE IS DEPENDENT ON WAVE LENGTH AND WIRE LENGTH, WHICH IS A MULTIPLE
OF HALF WAVE LENGTHS.  LINDENBLAD HAD DESCRIBED HIS ANTENNA AS USING
EITHER STANDING OR TRAVELING WAVES AND, AS WE HAVE SEEN, HAD TAUGHT
THAT WITH AN ARRANGEMENT OF ANTENNA WIRES AT AN ANGLE, RADIATION WILL
OCCUR SUBSTANTIALLY IN THE DIRECTION OF THE BISECTOR OF THE ANGLE AND
THAT THE PREFERRED ANGLE WAS DEPENDENT UPON AN INDICATED RELATIONSHIP
BETWEEN WIRE LENGTH AND WAVE LENGTH. 

IT IS PLAIN, THEREFORE, THAT THE CARTER INVENTION, IF IT WAS
INVENTION, CONSISTED IN TAKING THE ANGLE OF THE ABRAHAM FORMULA AS THE
ANGLE BETWEEN EACH WIRE OF THE V ANTENNA AND ITS BISECTOR.  BY SO DOING
HE BROUGHT THE CONES OF PRINCIPAL RADIO ACTIVITY, EACH HAVING ONE OF
THE WIRES OF THE ANTENNA AS ITS AXIS, INTO CONJUNCTION AT THEIR
PERIPHERY AND ALONG THE BISECTOR OF THE ANGLE BETWEEN THE WIRES, AND
THUS ESTABLISHED THERE THE GREATEST DIRECTIONAL RADIO ACTIVITY. 

WHILE A SCIENTIFIC TRUTH, OR THE MATHEMATICAL EXPRESSION OF IT, IS
NOT PATENTABLE INVENTION, A NOVEL AND USEFUL STRUCTURE CREATED WITH THE
AID OF KNOWLEDGE OF SCIENTIFIC TRUTH MAY BE.  BUT WE DO NOT STOP TO
SOLVE THE PROBLEM WHETHER IT WAS MORE THAN THE SKILL OF THE ART TO
COMBINE THE TEACHING OF ABRAHAM WITH THAT OF LINDENBLAD AND OTHERS WHO
HAD POINTED OUT THAT THE ARRANGEMENT OF THE WIRES AT AN ANGLE ENHANCED
DIRECTIONAL RADIO ACTIVITY ALONG THEIR BISECTOR.  WE ASSUME, WITHOUT
DECIDING THE POINT, THAT THIS ADVANCE WAS INVENTION EVEN THOUGH IT WAS
ACHIEVED BY THE LOGICAL APPLICATION OF A KNOWN SCIENTIFIC LAW TO A
FAMILIAR TYPE OF ANTENNA.  BUT IT IS APPARENT THAT IF THIS ASSUMPTION
IS CORRECT THE INVENTION WAS A NARROW ONE, CONSISTING OF A STRUCTURE
CONFORMING TO THE TEACHINGS OF THE ABRAHAM FORMULA AS TO ANGLE AND WIRE
LENGTH RELATIVE TO WAVE LENGTH, AND IS TO BE STRICTLY CONSTRUED WITH
REGARD BOTH TO PRIOR ART AND TO ALLEGED INFRINGING DEVICES.  KOKOMO
FENCE MACHINE CO. V. KITSELMAN, 189 U.S. 8; CIMIOTTI UNHAIRING CO. V.
AMERICAN FUR REFINING CO., 198 U.S. 399.  CARTER'S STRUCTURE WAS A V
ANTENNA HAVING AN ANGLE DOUBLE THE ABRAHAM ANGLE AND WIRES CONTAINING A
MULTIPLE OF HALF WAVE LENGTHS. 

CARTER, USING THE ABRAHAM FORMULA, CALCULATED THE VALUE OF THE ANGLE
$* IN THAT FORMULA FOR WIRES UP TO FOURTEEN WAVE LENGTHS LONG.  HE
PLOTTED THE RESULT, WHICH HE EXPRESSED GRAPHICALLY IN FIGURE 12 OF THE
PATENT BY DRAWING A SMOOTH CURVE CONNECTING THE DISCRETE POINTS ON THE
GRAPH WHICH INDICATED THE RESULTS OF HIS COMPUTATION BY USE OF THE
ABRAHAM FORMULA.  FROM THIS CALCULATION HE DERIVED A FORMULA IN
EMPIRICAL FORM  FN3  FOR DETERMINING THE DESIRED ANGLE WHEN WAVE LENGTH
AND LENGTH OF WIRE ARE KNOWN, IN WHICH THE ANGLE BETWEEN THE WIRES IS
DESCRIBED AS TWICE A, WHICH IS THE EQUIVALENT OF THE ANGLE $* OF THE
ABRAHAM FORMULA. 

PETITIONER USES ANTENNAE WITH WIRES IN V ARRANGEMENT, BUT THEIR WIRES
ARE NOT AN INTEGRAL NUMBER OF HALF WAVE LENGTHS LONG, WITH THE
EXCEPTION OF ONE ANTENNA, NO. 8, WHICH IS FOUR WAVE LENGTHS LONG AND
USES AN ANGLE 10% SMALLER THAN THAT PRESCRIBED BY THE ABRAHAM FORMULA
FOR THAT LENGTH OF WIRE.  THE OTHERS ARE OF LENGTHS WHICH ARE
APPROXIMATELY MULTIPLES OF QUARTER WAVE LENGTHS, AND THEIR ANGLES
DIFFER FROM THE ANGLES OF THE FORMULA.  THE CRUCIAL QUESTION IN THE
CASE IS WHETHER A V ANTENNA STRUCTURE, HAVING A WIRE LENGTH TO WHICH
THE ABRAHAM FORMULA DOES NOT APPLY AND USING AN ANGLE NOT TO BE DERIVED
FROM THAT FORMULA, WHICH IS THE BASIS OF THE PATENT, INFRINGES CARTER'S
PATENT.  RESPONDENT INSISTS THAT IT DOES, BECAUSE, AS IT ARGUES, THE
INVENTION DISCLOSED BY CARTER'S APPLICATION, ELABORATED BY AMENDMENT
AND BROAD CLAIMS, EMBRACES ALL V ANTENNAE ARRANGED AT AN ANGLE DOUBLE
THE ANGLE OF THE EMPIRICAL FORMULA, EVEN THOUGH THE LENGTH OF THE WIRES
IS NOT AN EXACT MULTIPLE OF HALF WAVE LENGTHS, AS PRESCRIBED BY THE
ABRAHAM FORMULA.  THIS IS THE INVENTION OF CLAIM 15,  FN4  AND IT IS
URGED THAT THE CLAIM IS AMPLY SUPPORTED BY THE STATEMENT IN THE
SPECIFICATIONS APPEARING IN THE ORIGINAL APPLICATION THAT THE EMPIRICAL
FORMULA REPRESENTED BY THE PLOTTED CURVE OF FIGURE 12 OF THE PATENT
"WILL BE FOUND ACCURATE FOR ALL PRACTICAL PURPOSES WHERE THE LENGTH OF
WIRE DEALT WITH DOES NOT CORRESPOND TO A WHOLE NUMBER OF HALF WAVE
LENGTHS."    THE TRIAL COURT, ANALYZING CARTER'S APPLICATION AND TAKING
INTO ACCOUNT THE ESSENTIALS OF THE ABRAHAM FORMULA AND THE STATEMENT IN
THE APPLICATION THAT THE "OBJECT OF THE PRESENT INVENTION IS TO
DISCLOSE THE PROPER ANGLE FOR CONDUCTORS OR RADIATORS" MEASURED IN
MULTIPLES OF HALF WAVE LENGTHS, EVIDENTLY THOUGHT, AS PETITIONER
ARGUES, THAT THE REFERENCES IN THE APPLICATION TO "WIRES OF FINITE"
FN5  LENGTH AND TO WIRES "OF ANY LENGTH WHATSOEVER"  FN6  WERE INTENDED
ONLY TO REFER TO WIRES OF ELECTRICALLY FINITE AS DISTINGUISHED FROM
ELECTRICALLY INFINITE LENGTH, CAPABLE OF PRODUCING STANDING WAVES
UTILIZED BY THE ANTENNA OF THE PATENT, AND OF ANY LENGTH CONFORMING TO
THE REQUIREMENTS OF TEH BASIC FORMULA.  FN7  IT CONCLUDED THAT THE
CORRECT CONSTRUCTION OF THE APPLICATION WAS THAT THE INVENTION
DESCRIBED DID NOT GO BEYOND THE SCOPE OF THE ABRAHAM FORMULA AND SO
EXTENDED ONLY TO THE ANGLES CALCULABLE BY THAT FORMULA FOR STANDING
WAVE WIRES MEASURED BY MULTIPLES OF HALF WAVE LENGTHS.  SUPPORT IS
GIVEN TO THIS CONCLUSION BY THE STATEMENT IN THE APPLICATION THAT "THE
LAW, GIVING THE CORRECT ANGLE FOR LENGTHS BETWEEN ODD AND EVEN NUMBER
OF HALF WAVE LENGTHS, IS NOT GIVEN DUE TO ITS COMPLEXITY  ...  " 

THE COURT OF APPEALS PLACED EMPHASIS ON THE REFERENCE TO "WIRES OF
ANY FINITE LENGTH" AND ON THE STATEMENT THAT "THE EMPIRICAL FORMULA AND
THE CURVE OF FIGURE 12 WILL BE FOUND ACCURATE FOR ALL PRACTICAL
PURPOSES, WHERE THE LENGTH OF WIRE DEALT WITH DOES NOT CORRESPOND TO A
WHOLE NUMBER OF HALF WAVE LENGTHS."  IT HELD THAT THE INVENTION
DISCLOSED WAS THE APPLICATION OF THE EMPIRICAL FORMULA TO ALL LENGTHS
OF ANTENNA WIRES AND EMBRACED ALL ANGLES RESULTING FROM SUCH
CALCULATION, AND THAT THE INVENTION WAS CONSEQUENTLY INFRINGED BY
PETITIONER'S STRUCTURES. 

WHETHER OR NOT IT WAS THE PURPOSE OF THE PATENTEE, BY THESE
REFERENCES TO WIRE LENGTHS IN HIS APPLICATION, TO EXTEND HIS PATENT TO
STRUCTURES NOT CONFORMING TO THE ABRAHAM FORMULA, WE ARE NOT ABLE TO
CONSTRUE THE APPLICATION, BEFORE AMENDMENT AT LEAST, AS EMBRACING SUCH
AN EXTENSION.  AND WE THINK THAT THE ATTEMPT TO EXTEND THE CLAIMS,
BASED ON THE APPLICATION OF THE EMPIRICAL FORMULA, TO WIRE LENGTHS NOT
MULTIPLES OF HALF WAVE LENGTHS, MUST FAIL, BECAUSE SUCH STRUCTURES ARE
NOT WITHIN THE INVENTION DESCRIBED IN THE APPLICATION. 

THE FORMULA IN CLAIMS 15 AND 16 IS THE EMPIRICAL FORMULA DERIVED FROM
THE ABRAHAM FORMULA, WHICH IS, BY ITS TERMS, APPLICABLE ONLY TO ANTENNA
WIRES WHICH ARE MULTIPLES OF HALF WAVE LENGTHS LONG.  CARTER'S
EMPIRICAL FORMULA, WHOLLY DERIVED FROM ABRAHAM'S FORMULA, AND TAKEN
TOGETHER WITH IT, THEREFORE DISCLOSES NO INVENTION OR DISCOVERY MORE
THAN THE APPLICATION OF THE ABRAHAM FORMULA TO THE V ANTENNA.  IT
REVEALS NO SCIENTIFIC LAW APPLICABLE TO WIRE LENGTHS WHICH ARE
INTERMEDIATE OF MULTIPLES OF HALF WAVE LENGTHS, AND THE APPLICATION
EXPLICITLY STATES THAT "THE LAW, GIVING THE CORRECT ANGLE FOR LENGTHS
BETWEEN ODD AND EVEN NUMBER OF HALF WAVE LENGTHS, IS NOT GIVEN."  THE
PREPARATION, BY METHODS FAMILIAR TO ENGINEERS, OF THE GRAPH IN FIGURE
12, WHICH WAS BUT A PICTORIAL REPRESENTATION OF THE ABRAHAM FORMULA
APPLIED TO CERTAIN WIRE LENGTHS SPECIFIED IN THE FORMULA, DID NOT
INVOLVE INVENTION.  NEITHER THE EMPIRICAL FORMULA NOR ITS GRAPH GIVES
ANY CLUE TO THE DIRECTIONAL RADIO ACTIVITY RESULTING FROM THE USE OF
WIRE LENGTHS INTERMEDIATE OF MULTIPLES OF HALF WAVE LENGTHS, WHICH WERE
EXCLUDED BY THE ABRAHAM FORMULA, AND NEITHER AFFORDED ANY BASIS FOR A
CLAIM OF INVENTION NOT SUPPORTED BY THE USE OF THE ABRAHAM FORMULA
ITSELF. 

THE CLAIMED USE OF THE EMPIRICAL FORMULA FOR THE CALCULATION OF THE
ANGLE FOR WIRES WHICH ARE NOT MULTIPLES OF HALF WAVE LENGTHS LONG THUS
INVOLVED A DEPARTURE FROM WHAT CARTER'S APPLICATION HAD DESCRIBED AS
HIS INVENTION, AND A CONTRADICTION OF IT.  WHAT CARTER DID WAS TO
DESCRIBE HIS STRUCTURE IN TERMS OF ITS DIMENSIONS, ARRIVED AT BY THE
USE OF THE ABRAHAM FORMULA, WHICH WAS STATED TO EMBODY THE APPLICABLE
SCIENTIFIC LAW.  HE THEN DERIVED THE EMPIRICAL FORMULA FROM ABRAHAM. 
FROM THE VERY METHOD OF DERIVATION THE EMPIRICAL FORMULA MEANT NOTHING
DIFFERENT FROM THAT OF ABRAHAM.  HE THEN DECLARED THE EMPIRICAL FORMULA
TO EMBODY A METHOD OF ARRIVING AT THE MEASUREMENTS OF A STRUCTURE
DIFFERENT FROM THE STRUCTURE FIRST DESCRIBED AS THE INVENTION AND NOT
CAPABLE OF CONSTRUCTION BY THE METHOD OF THE ABRAHAM FORMULA.  IF, AS A
RESULT OF THIS LEGERDEMAIN, A V ANTENNA HAVING WIRE LENGTHS A MULTIPLE
OF ANY FRACTIONAL WAVE LENGTH IS TO BE TAKEN AS THE INVENTION OF
CARTER'S APPLICATION, THEN EVERYTHING THAT IT SAID OF THE ABRAHAM
FORMULA AND OF WIRES "EITHER AN EVEN NUMBER OF HALF WAVE LENGTHS LONG
OR AN ODD NUMBER OF HALF WAVE LENGTHS LONG" COULD BE DISCARDED WITHOUT
CHANGING ITS MEANING.  FN8 

THIS ATTEMPT TO BROADEN THE ONLY INVENTION DESCRIBED IN THE
APPLICATION THROUGH A PURELY MECHANICAL ALTERATION OF THE MEANING OF
THE EMPIRICAL FORMULA, WHICH HAD BEEN DEVISED AS A SHORTHAND EXPRESSION
OF THE SCIENTIFIC LAW ON WHICH THE INVENTION WAS DECLARED TO REST,
CANNOT, WE THINK, BE TAKEN TO ENLARGE THE DESCRIPTION OF THE INVENTION
AS MEASURED BY THE ABRAHAM FORMULA, SO AS TO INCLUDE A STRUCTURE TO
WHICH THAT FORMULA DOES NOT APPLY.  THIS USE OF THE EMPIRICAL FORMULA
FOR A PURPOSE FOR WHICH IT WAS NOT DEVISED DOES NOT JUSTIFY OUR
CONSTRUING THE APPLICATION AS THOUGH ALL REFERENCE TO THE ABRAHAM
FORMULA HAD BEEN ELIMINATED AND A NEW AND DIFFERENT ONE EXPRESSING A
NEW AND DIFFERENT SCIENTIFIC LAW HAD BEEN SUBSTITUTED FOR IT.  THE
RESULT OF READING THE APPLICATION AS RESPONDENT CONTENDS IT SHOULD BE
CONSTRUED IS PRECISELY THE SAME AS THOUGH FULL EFFECT WERE GIVEN TO A
CLAIM WHICH GOES BEYOND THE INVENTION DESCRIBED, AND IT IS OPEN TO THE
SAME OBJECTION. 

AFTER THE PRESENT SUIT WAS BROUGHT THE APPLICATION WAS ALTERED BY
AMENDMENT SO AS IN EFFECT TO WIPE OUT ALL REFERENCE TO THE SCIENTIFIC
LAW BY WHICH CARTER'S INVENTION WAS DEFINED.  THIS WAS ACCOMPLISHED BY
CHANGES WHICH IMPLICITLY ASSERT THAT THE LETTER N OF THE FORMULA OF THE
INVENTION, THE ABRAHAM FORMULA, MEANT SOMETHING DIFFERENT FROM "THE
NUMBER OF HALF WAVE LENGTHS CONTAINED IN THE WIRE" OF A LENGTH OF
MULTIPLES OF HALF WAVE LENGTHS AS STATED BOTH IN THE APPLICATION AND IN
THE PATENT. 

THE REFERENCE IN THE APPLICATION TO THE PURPOSE OF THE INVENTION TO
DISCLOSE THE "PROPER ANGLE" FOR RADIATORS OF MULTIPLES OF HALF WAVE
LENGTHS LONG WAS ALTERED BY ELIMINATING FROM IT ALL MENTION OF HALF
WAVE LENGTHS.  FN9  A SENTENCE ADDED AFTER FORMAL ALLOWANCE OF THE
PATENT STATES: "BY THE TERM 'PLURALITY OF WAVE LENGTHS', OR 'PLURALITY
OF HALF WAVE LENGTHS', OR 'SEVERAL HALF WAVE LENGTHS', IT IS NOT
INTENDED THAT THE WIRES SO DESCRIBED SHALL NECESSARILY BE AN EXACT OR
APPROPRIATE INTEGRAL NUMBER OF SUCH LENGTHS, UNLESS SO SPECIFIED, BUT
RATHER THAT EACH OF THE WIRES SO DESCRIBED SHALL BE SUFFICIENTLY LONG
TO INCLUDE THE LENGTHS SPECIFIED."  THESE AMENDMENTS OPERATED TO MODIFY
THE ABRAHAM FORMULA SO AS TO CANCEL FROM THE APPLICATION THE STATEMENT
OF THE SCIENTIFIC LAW DEFINING THE INVENTION.  THEY LEFT AS ITS
DEFINITION THE MODIFIED ABRAHAM FORMULA AND ITS COUNTERPART, THE
EMPIRICAL FORMULA, STATING A DIFFERENT LAW WHICH THEIR GENESIS DID NOT
AUTHORIZE. 

WE THINK THAT THESE ALTERATIONS WERE NOT PERMISSIBLE.  SCHRIBER
SCHROTH CO. V. CLEVELAND TRUST CO., 305 U.S. 47, AND THAT WITHOUT THEM
THE INVENTION MUST BE TAKEN TO BE LIMITED TO A STRUCTURE HAVING AN
ANGLE DOUBLE THAT DISCLOSED BY THE ABRAHAM FORMULA, WHICH WAS MADE THE
BASIS OF THE ALLEGED INVENTION.  AS ALREADY SHOWN, NEITHER THE ABRAHAM
FORMULA NOR THE EMPIRICAL FORMULA DESCRIBES, OR PURPORTS TO DESCRIBE,
THE DIRECTIONAL RADIO ACTIVITY OR DEFINES THE ANGLE WHICH AFFORDS "THE
BEST DIRECTIONAL PROPAGATION" OF THE PATENT FOR ANTENNAE OF WIRE
LENGTHS INTERMEDIATE OF MULTIPLES OF HALF WAVE LENGTHS.  THE EXPERT
TESTIMONY SHOWS THAT IN FACT NEITHER FORMULA SERVES THAT PURPOSE.  THE
FINDING OF THE TRIAL COURT THAT THEY DO NOT MAKE "A CORRECT SHOWING OF
WHAT HAPPENS WHEN THE WIRES ARE OTHER THAN EXACT MULTIPLES OF HALF WAVE
LENGTHS" IS SUPPORTED BY THE EVIDENCE.  THE TESTIMONY WARRANTS THE
CONCLUSION THAT DIFFERENCES IN WAVE EFFECT ALREADY NOTED, FN10  WHEN
WIRES OF OTHER THAN EXACT MULTIPLES OF HALF WAVE LENGTHS ARE USED,
PRODUCE, THROUGH CONSEQUENT CHANGES IN "RADIATION RESISTANCE,"
DIFFERENCES IN DIRECTIONAL RADIO ACTIVITY NOT CALCULABLE BY THE
FORMULAE OF THE PATENT.  IT FOLLOWS THAT CLAIMS 15 AND 16, SO FAR AS
THEY CLAIM ANTENNAE OF WIRE LENGTHS INTERMEDIATE OF MULTIPLES OF HALF
WAVE LENGTHS, ARE INVALID.  SO FAR AS THE PATENT DISCLOSES AND CLAIMS
INVENTION OF A STRUCTURE MADE IN CONFORMITY TO THE ABRAHAM FORMULA,
PETITIONER'S STRUCTURES DO NOT INFRINGE, FOR NONE OF THEM CONFORMS TO
THE ABRAHAM FORMULA. 

FOR REASONS ALREADY INDICATED IT IS NOT MATERIAL THAT THE VARIATIONS
ARE SMALL BETWEEN THE ANGLES USED BY PETITIONER FOR WIRE LENGTHS OF
MULTIPLES OF QUARTER WAVE LENGTHS AND THOSE OBTAINED BY APPLICATION OF
THE EMPIRICAL FORMULA.  FURTHER, CARTER'S ADVANCE OVER PRIOR ART WAS IN
SPECIFYING AN EXACT ANGLE FOR WIRES OF THE PRESCRIBED LENGTH. 
LINDENBLAD HAD INDICATED A PREFERRED ANGLE, AND BRUCE, BEFORE CARTER,
HAD PLOTTED A RULE OF THUMB GRAPH, WHICH THE TRIAL COURT FOUND TO BE
PRIOR ART, SHOWING THE DIRECTIONAL RADIO ACTIVITY OF A V ANTENNA AND
EXHIBITING RELATIVELY SMALL VARIATIONS FROM THAT OF CARTER.  CARTER,
AVOIDING PRIOR ART BY DEFINING HIS ANGLE FOR ANTENNAE WITH WIRES OF
PARTICULAR WAVE LENGTHS WITH MATHEMATICAL PRECISION, CANNOT DISCARD
THAT PRECISION TO ESTABLISH INFRINGEMENT.  KOKOMO FENCE MACHINE CO. V.
KITSELMAN, SUPRA; CIMIOTTI UNHAIRING CO. V. AMERICAN FUR REFINING CO.,
SUPRA, CF. GENERAL ELECTRIC CO. V. WABASH CORP., 304 U.S. 364. 

IT IS UNNECESSARY TO DISCUSS THE FURTHER QUESTION WHETHER
PETITIONER'S STRUCTURES AVOID INFRINGEMENT BECAUSE THE DIRECTION OF
THEIR PRINCIPAL RADIO ACTIVITY IS NOT IN THE PLANE OF THE WIRES, AN
OPERATIVE DIFFERENCE FROM THE ANTENNAE DESCRIBED BY THE PATENT WHICH
THE COURT BELOW FOUND TO BE DUE WHOLLY TO GROUND EFFECT, WHICH IT
THOUGHT MUST BE ASSUMED TO BE ENVISAGED BY, THOUGH NOT STATED IN, THE
CARTER PATENT.  REVERSED. 

FN1  UNDERSTANDING OF THE DISCLOSURE AND OTHER FEATURES OF THE PATENT
REQUIRES A BRIEF EXPLANATION OF ITS TERMS.  THE TERM "LONG," AS APPLIED
TO AN ANTENNA, MEANS A WIRE WHICH IS LONG IN RELATION TO THE WAVE
LENGTH USED.  THE TERM "STANDING WAVES," AS DISTINGUISHED FROM
"TRAVELING WAVES," DESCRIBES THE PHENOMENON MANIFESTED WHEN AN
OSCILLATING ELECTRIC CURRENT OF RADIO FREQUENCY IS COMMUNICATED TO ONE
END OF A WIRE WHICH IS OPEN AT THE OTHER (THAT IS, NOT IN A CLOSED
CIRCUIT) AND SUFFICIENTLY SHORT SO THAT THE WAVES HAVE NOT COMPLETELY
RADIATED THEIR ENERGY BEFORE REACHING THE END OF THE WIRE.  THE WAVES
WILL THEN BE REFLECTED BACK ALONG THE WIRE, AND THE ENERGY OF THE
REFLECTED WAVES TENDS TO UNITE WITH THAT OF THE ONCOMING WAVES OF THE
SAME PERIODICITY, SO AS TO PRODUCE STANDING WAVES ALONG THE WIRE.  AS
THE VELOCITY OF THE RADIO WAVE IN SPACE IS APPROXIMATELY THAT OF THE
CURRENT WAVES IN THE WIRE, THE NUMBER OF COMPLETE STANDING WAVES ON THE
WIRE IS ALWAYS EXACTLY THE SAME AS THE LENGTH OF THE WIRE DIVIDED BY
THE WAVE LENGTH.  WHEN THE LENGTH OF THE WIRE IS A MULTIPLE OF HALF
WAVE LENGTHS, THE ONCOMING AND REFLECTED WAVES, TRAVELING AT THE SAME
VELOCITY, OCCUR SIMULTANEOUSLY, DIFFERING IN THIS RESPECT FROM THE
WAVES IN A WIRE OF A LENGTH INTERMEDIATE A MULTIPLE OF HALF WAVE
LENGTHS, AND WITH DIFFERENT EFFECTS UPON THE RESULTING RADIO ENERGY,
PRESENTLY TO BE NOTED. 

WHEN OSCILLATING CURRENT IS SO RELATED TO THE LENGTH OF WIRE THAT THE
ENERGY OF THE FORMER IS EXHAUSTED BY RADIATION BEFORE OR WHEN THE WAVES
REACH THE END OF THE WIRE, THERE IS NO REFLECTION OF THE WAVES, AND
THEY TRAVEL IN ONE DIRECTION ONLY TOWARD THE OPEN END OF THE WIRE. 
THEY ARE DENOMINATED "TRAVELING WAVES."  IN PROFESSIONAL PARLANCE,
WIRES PRODUCING REFLECTED, AND HENCE "STANDING" WAVES, ARE ELECTRICALLY
OF FINITE LENGTH.  THOSE OF SUFFICIENT LENGTH  TO AVOID REFLECTION AND
THUS CARRY WAVES FLOWING IN ONLY ONE DIRECTION ARE SAID TO BE
ELECTRICALLY OF INFINITE LENGTH. 

FN2  THE SPECIFICATIONS STATE:  "BY CONSIDERING A LONG WIRE THE
EQUIVALENT OF A VERY LARGE NUMBER OF VERY SHORT, (HERTZ) OSCILLATORS
AND BY ADDING UP THE FIELD COMPONENTS AT ANY POINT P HAVING A DIRECTION
ANGLE $* RELATIVE TO THE AXIS OF THE WIRE, WHERE THE POINT P IS A GREAT
DISTANCE FROM THE WIRE AS COMPARED TO THE LENGTH OF THE WIRE SUCH THAT
ALL LINES FROM POINT P TO ANY POINT ON THE WIRE ARE ESSENTIALLY
PARALLEL, IT CAN BE SHOWN THAT THE FIELD STRENGTH H IS GIVEN BY THE
FOLLOWING PROPORTIONALITY FOR A CONDUCTOR AN ODD NUMBER OF HALF WAVE
LENGTHS LONG: 

(CHART OMITTED) 

"THE LETTER 'N' INDICATES THE NUMBER OF HALF WAVE LENGTHS CONTAINED
IN THE WIRE. 

"FOR A WIRE AN EVEN NUMBER OF HALF WAVE LENGTHS LONG, IN SIMILAR
FASHION, THE FIELD STRENGTH 'H' IS GIVEN BY THE FOLLOWING
PROPORTIONALITY: 

(CHART OMITTED) 

"WHERE N AS ABOVE INDICATES THE NUMBER OF HALF WAVE LENGTHS ON THE
WIRE." 

FN3  "FOR PRACTICAL PURPOSES THE EMPIRICAL FORMULA 

(CHART OMITTED)  IS SUFFICIENTLY ACCURATE WHERE L EQUALS THE LENGTH
OF THE WIRE AND $* THE WAVE LENGTH, BOTH IN THE SAME UNITS OF
MEASUREMENT." 

FN4  "15.  AN ANTENNA COMPRISING A PAIR OF RELATIVELY LONG CONDUCTORS
DISPOSED WITH RESPECT TO EACH OTHER AT AN ANGLE SUBSTANTIALLY EQUAL TO
TWICE 

(CHART OMITTED)  DEGREES, L BEING THE LENGTH OF THE WIRE AND $* THE
OPERATING WAVE LENGTH IN LIKE UNITS, AND MEANS IN CIRCUIT WITH SAID
ANTENNA FOR EXCITING THE CONDUCTORS IN PHASE OPPOSITION WHEREBY
STANDING WAVES OF OPPOSITE INSTANTANEOUS POLARITY ARE FORMED ON THE
CONDUCTORS THROUGHOUT THEIR LENGTH."    CLAIM 16 CLAIMS AN ANTENNA
ARRANGED IN CONFORMITY TO THE EMPIRICAL FORMULA, AS IN CLAIM 15, WITH
"A SIMILAR PARALLEL PAIR OF CONDUCTORS SPACED AN ODD NUMBER OF QUARTER
WAVE LENGTHS AWAY FROM SAID FIRST MENTIONED PAIR  ...  "  THESE
PARALLEL WIRES CONSTITUTE THE "REFLECTOR," WHICH, AS ALREADY NOTED, WAS
OLD IN THE ART. 

FN5  "STILL A FURTHER OBJECT OF THE PRESENT INVENTION IS TO DISCLOSE
THE PROPER ANGLE FOR CONDUCTORS OR RADIATORS EITHER AN EVEN NUMBER OF
HALF WAVE LENGTHS LONG OR AN ODD NUMBER OF HALF WAVE LENGTHS LONG, AND,
IN GENERAL TO DISCLOSE THE ANGLE FOR BEST DIRECTIONAL PROPAGATION FOR
WIRES OF ANY FINITE LENGTH." 

AFTER THE PRESENT SUIT WAS BROUGHT THIS PARAGRAPH WAS AMENDED TO
READ: 

"ANOTHER OBJECT OF THE INVENTION IS TO DISCLOSE THE ANGLE FOR THE
BEST DIRECTIONAL PROPAGATION FOR OPEN-ENDED WIRES OF ANY FINITE LENGTH,
PREFERABLY LONGER THAN THE OPERATING WAVE LENGTH, HAVING STANDING WAVES
THEREON AND ARRANGED IN THE MANNER PROPOSED." 

FN6  "MOREOVER, IT SHOULD BE CLEARLY UNDERSTOOD THAT THE WIRES OF
EACH UNIT CAN BE OF ANY LENGTH WHATSOEVER PROVIDED THEY ARE PLACED AT
THE CORRECT ANGLE FOR THEIR LENGTH.  FOR BEST TUNING, THE TOTAL OVERALL
LENGTH OF BOTH OF THE WIRES AND THE 'U' LOOP TERMINATING THEM SHOULD BE
EFFECTIVELY AN INTEGRAL NUMBER OF HALF WAVE LENGTHS, BUT, THE PORTION
FORMING THE RADIATION ELEMENT CAN BE OF ANY LENGTH.  THE LAW, GIVING
THE CORRECT ANGLE FOR LENGTHS BETWEEN ODD AND EVEN NUMBER OF HALF WAVE
LENGTHS, IS NOT GIVEN DUE TO ITS COMPLEXITY, BUT THE EMPIRICAL FORMULA
AND THE CURVE OF FIGURE 12 WILL BE FOUND ACCURATE FOR ALL PRACTICAL
PURPOSES, WHERE THE LENGTH OF WIRE DEALT WITH DOES NOT CORRESPOND TO A
WHOLE NUMBER OF HALF WAVE LENGTHS." 

FN7  SEE NOTE 1, SUPRA. 

FN8  SEE NOTE 5, SUPRA. 

FN9  SEE NOTE 5, SUPRA. 

FN10  SEE NOTE 1, SUPRA. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









WICHITA CO. V. CITY BANK, 306 U.S. 103 


NO. 314.  ARGUED JANUARY 6, 1939.  - DECIDED JANUARY 30, 1939.  - 95
F.2D 671 - 97 ID. 249, AFFIRMED. 


1.  THE OPINION OF THE SUPREME COURT OF TEXAS AT AN EARLIER STAGE OF
THIS CASE, DEFINING THE LIABILITY OF A BANK FOR TRUST-FUNDS TRANSFERRED
BY A TRUSTEE FROM THE TRUST ACCOUNT TO A PERSONAL ACCOUNT, AND CHECKED
OUT AND MISAPPROPRIATED BY HIM AFTER THE BANK HAD ACCEPTED PAYMENT OF
HIS PERSONAL DEBTS TO THE BANK OR AN OFFICER THEREOF, WITH NOTICE THAT
THE PAYMENTS HAD THEIR SOURCE IN TRUST FUNDS, WAS NOT MODIFIED BY THE
OPINION OF THAT COURT IN QUANAH, ACME & PACIFIC RY. CO. V. WICHITA
STATE BANK & TRUST CO., 127 TEX. 407.  P. 108. 

THE EARLIER OPINION MUST BE ACCEPTED AS STATING THE LAW OF TEXAS, AND
IT AFFORDS THE APPROPRIATE GUIDE FOR THE FEDERAL COURT SO FAR AS IT MAY
BE APPLICABLE TO THE FACTS WHICH HAVE BEEN DEVELOPED ON THE TRIAL
THERE. 

2.  DECISION ON FIRST APPEAL IS NOT RES JUDICATA IN SUBSEQUENT
HEARING OF THE CASE.  P. 107. 

3.  UPON REMOVAL OF A CASE FOR RETRIAL AFTER AN APPEAL TO AND
REVERSAL BY A STATE SUPREME COURT, IT IS THE DUTY OF THE FEDERAL COURT
TO DETERMINE AND APPLY THE STATE LAW TO LOCAL QUESTIONS AS THE STATE
COURT WOULD HAVE DONE, AND, WHERE THE STATE COURT HOLDS ITSELF FREE TO
MODIFY OR RECEDE FROM ITS OWN OPINIONS, THE FEDERAL COURT IS FREE TO
EXAMINE LATER OPINIONS OF THE STATE COURT IN ORDER TO ASCERTAIN THE
APPLICABLE STATE LAW.  P. 107. 

4.  THE CIRCUIT COURT OF APPEALS PROPERLY DIRECTED REMAND OF THIS
CASE TO THE DISTRICT COURT FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
IN ACCORDANCE WITH EQUITY RULE 70 1/2.  P. 110. 

WICHITA ROYALTY CO. ET AL. V. CITY NATIONAL BANK OF WICHITA FALLS ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 305 U.S. 587, TO REVIEW THE REVERSAL OF A DECREE IN A
CASE REMOVED FROM A STATE COURT.  THE DISTRICT COURT HAD DENIED
RECOVERY ON CERTAIN CLAIMS AND COUNTERCLAIMS WHICH WERE INVOLVED IN THE
ORIGINAL SUIT.  THIS COURT AFFIRMS THE JUDGMENT OF THE COURT BELOW IN
REMANDING THE CASE FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW, BUT
DIFFERS FROM THAT COURT IN RESPECT OF PRINCIPLES APPLICABLE IN
DISPOSITION OF THE CASE. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

WE ARE ASKED TO DETERMINE WHETHER THE CIRCUIT COURT OF APPEALS
CORRECTLY APPLIED THE LAW OF TEXAS IN A SUIT UPON A CAUSE OF ACTION
ARISING IN THAT STATE BETWEEN A TEXAS ASSOCIATION ACTING UNDER A
DECLARATION OF TRUST AND A NATIONAL BANK DOING BUSINESS THERE. 

THE PROCEEDINGS IN THE PRESENT LITIGATION HAVE BEEN EXTENSIVE AND
COMPLEX BUT ONLY THOSE RELEVANT TO THE ISSUE PRESENTED HERE NEED BE
DETAILED.  RESPONDENT, THE CITY NATIONAL BANK OF WICHITA FALLS, BROUGHT
SUIT IN A TEXAS COURT AGAINST THE ASSOCIATION, PETITIONER HERE, AND ITS
TRUSTEE TO RECOVER ON TWO PROMISSORY NOTES, ONE MADE AND THE OTHER
ENDORSED BY PETITIONER.  THEY FILED A CROSSACTION AGAINST THE BANK,
IMPLEADING ITS VICE-PRESIDENT, TO RECOVER A DEPOSIT BALANCE IN FAVOR OF
PETITIONER ON THE GROUND THAT THE BANK HAD IMPROPERLY CHARGED THE
ACCOUNT WITH DRAFTS DRAWN UPON IT BY PECKHAM, A FORMER TRUSTEE OF
PETITIONER, OR AT HIS DIRECTION, AND THAT PECKHAM, IN BREACH OF TRUST,
HAD USED THE PROCEEDS IN PART TO PAY HIS OWN DEBTS TO THE BANK OR ITS
VICE-PRESIDENT, AND IN PART FOR OTHER EXPENDITURES FOR HIS OWN
BENEFIT. 

THE MISAPPROPRIATIONS WERE ALLEGED TO HAVE BEEN EFFECTED BY THE
WITHDRAWAL OF FUNDS FROM THE DEPOSIT ACCOUNT BY A LARGE NUMBER OF
CHECKS SIGNED BY PECKHAM AS TRUSTEE, OR AT HIS DIRECTION, AND PAYABLE
TO HIS OWN ORDER OR TO THE BANK.  SOME WERE ALLEGED TO HAVE BEEN
CREDITED BY THE BANK IN PAYMENT OF THE TRUSTEE'S PERSONAL DEBTS AND
SOME TO HIS PERSONAL ACCOUNT WITH THE BANK, FROM WHICH HE LATER
WITHDREW A SUBSTANTIAL PART OF THE AMOUNTS SO DEPOSITED AND USED IT FOR
HIS OWN PURPOSES.  PETITIONER CONTENDED THAT SOME OF THE FUNDS THUS
WITHDRAWN FROM HIS PERSONAL ACCOUNT WERE USED IN PAYMENT OF HIS
PERSONAL DEBTS TO THE BANK OR ITS VICE-PRESIDENT AND THAT THE BANK AND
ITS VICE-PRESIDENT, BECAUSE OF THE TRANSACTIONS WITH THE BANK AND THE
FORM OF THE CHECKS, HAD NOTICE OF AND HAD PARTICIPATED IN THE BREACHES
OF TRUST OR SOME OF THEM AND TO THAT EXTENT WERE LIABLE FOR ALL THE
MISAPPROPRIATIONS. 

THE TRIAL COURT DIRECTED A VERDICT AND ENTERED JUDGMENT IN FAVOR OF
THE BANK ON THE NOTES AND AGAINST PETITIONER ON ITS CROSS-ACTION.  ON
APPEAL THE SUPREME COURT OF TEXAS REVERSED AND REMANDED THE CAUSE FOR A
NEW TRIAL UPON SUCH FURTHER EVIDENCE AS MIGHT BE ADDUCED, AND IN ITS
OPINION STATED THE APPLICABLE PRINCIPLES OF LAW FOR THE GUIDANCE OF THE
TRIAL COURT.  127 TEX. 158, 184.  MEANWHILE, THE BANK HAD CLOSED ITS
DOORS.  ITS ASSETS WERE TAKEN OVER BY RESPONDENT, THE NEWLY ORGANIZED
CITY NATIONAL BANK IN WICHITA FALLS, WHICH ASSUMED THE LIABILITIES OF
THE OLD BANK. 

ON THE REMAND THE DIRECTORS AND THE LIQUIDATING AGENT OF THE OLD BANK
AND THE NEW BANK WERE MADE PARTIES DEFENDANT TO THE CROSS-ACTION BY
PETITIONER ASSOCIATION, AND THE PLEADINGS WERE AMENDED SO AS TO CHARGE
THE NEW INDIVIDUAL DEFENDANTS WITH RESPONSIBILITY FOR THE LIABILITY
ORIGINALLY ASSERTED AGAINST THE OLD BANK, AND ALSO TO CHARGE THE NEW
BANK BY REASON OF ITS ACQUISITION OF THE ASSETS AND ITS ASSUMPTION OF
THE LIABILITIES OF THE OLD ONE. 

THE CAUSE WAS THEN REMOVED TO THE FEDERAL DISTRICT COURT FOR NORTHERN
TEXAS, UNDER SEC. 28 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 71.  ON THE
TRIAL OF THE CAUSE THERE, IN THE COURSE OF WHICH VOLUMINOUS EVIDENCE
WAS TAKEN BEFORE A COMMISSIONER, THE DISTRICT COURT DENIED RECOVERY TO
THE OLD BANK ON THE PROMISSORY NOTES AND TO THE ASSOCIATION UPON ITS
CLAIM AGAINST THE OLD BANK AND THE VARIOUS OTHER PARTIES SOUGHT TO BE
CHARGED WITH ITS LIABILITY, BUT DIRECTED THAT JURISDICTION BE RETAINED
TO WIND UP THE AFFAIRS OF THE INSOLVENT BANK.  SEC. 24(16) OF THE
JUDICIAL CODE, 28 U.S.C. SEC. 41(16); INTERNATIONAL TRUST CO. V. WEEKS,
203 U.S. 364. 

THE COURT OF APPEALS FOR THE FIFTH CIRCUIT SET ASIDE THE DECREE
BECAUSE OF THE FAILURE OF THE TRIAL COURT TO MAKE FINDINGS OF FACT AND
STATE CONCLUSIONS OF LAW AS REQUIRED BY EQUITY RULE 70 1/2.  95 F.2D
671.  IN REMANDING THE CAUSE THE COURT STATED, FOR THE GUIDANCE OF THE
TRIAL COURT, PRINCIPLES OF LAW WHICH IT THOUGHT APPLICABLE TO THE CAUSE
OF ACTION ASSERTED BY THE ASSOCIATION.  THESE WERE AT VARIANCE WITH
THOSE WHICH THE TEXAS SUPREME COURT IN ITS EARLIER REMAND OF THE CASE
HAD DECLARED TO BE CONTROLLING.  IT REJECTED IN PART THE RULINGS OF THE
STATE COURT BECAUSE IT THOUGHT THAT THE QUESTIONS PRESENTED WERE OF
GENERAL COMMERCIAL LAW, WITH RESPECT TO WHICH THE FEDERAL COURTS WERE
NOT BOUND BY LOCAL DECISIONS, AND THAT THE RULES WHICH THE TEXAS COURTS
HAD ADOPTED WERE NOT FAVORED BY THE DECISIONS OF THE FEDERAL AND SOME
STATE COURTS. 

IN ITS OPINION DENYING A SECOND PETITION FOR REHEARING, 97 F.2D 249,
PRESENTED AFTER OUR DECISION IN ERIE RAILROAD CO. V. TOMPKINS, 304 U.S.
64, THE COURT DISCLAIMED ANY PURPOSE NOT TO FOLLOW THE LAW OF TEXAS,
BUT REAFFIRMED ITS INSTRUCTIONS FOR THE TRIAL COURT ON THE GROUND THAT
THEY WERE IN HARMONY WITH THE OPINION OF THE SUPREME COURT OF TEXAS IN
A LATER CASE, QUANAH, ACME & PACIFIC RY. CO. V. WICHITA STATE BANK &
TRUST CO., 127 TEX. 407; 93 S.W.2D 701, WHICH THE COURT OF APPEALS
THOUGHT HAD MODIFIED AND RESTRICTED THE RULES ANNOUNCED BY THE STATE
COURT ON THE APPEAL IN THIS CASE.  WE GRANTED CERTIORARI, 305 U.S. 587,
ON A PETITION URGING THAT IT WAS THE DUTY OF THE COURT OF APPEALS TO
APPLY THE LAW AS DEFINED BY THE SUPREME COURT OF TEXAS ON THE FIRST
APPEAL, THE QUESTION, CONCERNING THE RELATIONS OF THE FEDERAL AND STATE
COURTS, BEING OF PUBLIC IMPORTANCE. 

IN DEPARTING FROM THE "LAW OF THE CASE," AS ANNOUNCED BY THE STATE
COURT, AND APPLYING A DIFFERENT RULE, THE COURT BELOW CORRECTLY STATED
THAT BY REASON OF THE REMOVAL IT HAD BEEN SUBSTITUTED FOR THE TEXAS
SUPREME COURT AS THE APPROPRIATE COURT OF APPEAL AND THAT IT WAS ITS
DUTY TO APPLY THE TEXAS LAW AS THE TEXAS COURT WOULD HAVE DECLARED AND
APPLIED IT ON A SECOND APPEAL IF THE CAUSE HAD NOT BEEN REMOVED.  IT
WAS THE DUTY OF THE FEDERAL COURT TO APPLY THE LAW OF TEXAS AS DECLARED
BY ITS HIGHEST COURT.  ERIE RAILROAD CO. V. TOMPKINS, SUPRA.  BUT THE
CASE ON THE FIRST APPEAL HAD NOT BECOME RES JUDICATA.  REMINGTON V.
CENTRAL PACIFIC R. CO., 198 U.S. 95, 99, 100; MESSENGER V. ANDERSON,
225 U.S. 436, 444; DIAZ V. PATTERSON, 263 U.S. 399, 402; SEAGRAVES V.
WALLACE, 69 F.2D 163, 164, 165.  AND SINCE THE SUPREME COURT OF TEXAS
HOLDS ITSELF FREE UPON RECONSIDERATION TO MODIFY OR RECEDE FROM ITS OWN
OPINIONS, SEE QUANAH, ACME & PACIFIC RY. CO. V. WICHITA STATE BANK &
TRUST CO., SUPRA, SUPERSEDING 89 S.W.2D 385, THE COURT BELOW, IN
APPLYING THE LOCAL LAW, WAS LIKEWISE FREE TO DEPART FROM THE EARLIER
RULINGS TO THE EXTENT THAT EXAMINATION OF THE LATER OPINIONS OF THE
TEXAS SUPREME COURT SHOWED THAT IT HAD MODIFIED ITS OPINION ON THE
FIRST APPEAL.  HENCE THE ONLY QUESTION FOR OUR DECISION IS WHETHER THE
COURT OF APPEALS RIGHTLY CONCLUDED THAT THE STATE COURT HAD THUS
ALTERED ITS OPINION. 

THE COURT OF APPEALS HELD, AS DID THE TEXAS SUPREME COURT, THAT THE
OLD BANK, SO FAR AS IT HAD ACCEPTED PAYMENT OF THE TRUSTEE'S PERSONAL
DEBTS FROM HIS PERSONAL ACCOUNT, WITH NOTICE THAT THE PAYMENTS HAD
THEIR SOURCE IN TRUST FUNDS, HAD BECOME LIABLE FOR THE TRUSTEE'S
MISAPPROPRIATIONS BY REASON OF ITS PARTICIPATION IN THEM.  BUT THE TWO
COURTS DIFFERED WITH RESPECT TO THE LIABILITY OF THE BANK FOR TRUST
FUNDS COMMINGLED WITH THE TRUSTEE'S PERSONAL ACCOUNT AND LATER
WITHDRAWN AND USED FOR HIS PERSONAL BENEFIT.  THE STATE COURT HAD RULED
THAT THE BANK WAS RESPONSIBLE FOR ALL SUCH MISAPPROPRIATIONS AS TOOK
PLACE AFTER IT HAD KNOWINGLY ACCEPTED TRUST FUNDS IN PAYMENT OF THE
TRUSTEE'S PERSONAL DEBTS.  POINTING OUT THAT THERE WAS EVIDENCE OF SUCH
TRANSACTIONS, IT DECLARED, 127 TEX. 158, 174, 175:  "THE BANK, AFTER
BEING CHARGED WITH KNOWLEDGE OF PECKHAM'S DISHONEST DEALINGS, CONTINUED
TO CREDIT PECKHAM'S PERSONAL ACCOUNT WITH CHECKS DRAWN ON THE TRUST
ACCOUNT, AND PERSISTED IN ITS COURSE OF DEALINGS WITH RESPECT TO THE
TWO ACCOUNTS.  HAVING INCURRED THE BURDEN OF ASCERTAINING WHETHER
SUBSEQUENT EXPENDITURES MADE BY THE TRUSTEE FROM THE COMMINGLED FUNDS
WERE FOR AUTHORIZED TRUST PURPOSES, IT CANNOT EFFECTIVELY COMPLAIN OF
THE WEIGHT OF THAT BURDEN."  AND IT CONCLUDED, 127 TEX. 158, 182:  "IT
IS APPARENT FROM WHAT HAS BEEN STATED THAT THE AMOUNT OF THE BANK'S
LIABILITY IS THE DIFFERENCE BETWEEN THE TOTAL AMOUNT OF THE DEPOSITS
(OF TRUST MONEYS) FOR WHICH PECKHAM'S PERSONAL ACCOUNT RECEIVED CREDIT
AFTER HE BEGAN COMMINGLING TRUST FUNDS WITH HIS OWN ON OCTOBER 8, 1925,
AND THE TOTAL AMOUNT OF WITHDRAWALS THEREFROM WHICH THE BANK MAY SHOW
WERE USED FOR AUTHORIZED TRUST PURPOSES."  FN1 

THE COURT BELOW, RELYING ON THE DECISION OF THE TEXAS SUPREME COURT
IN THE LATER QUANAH CASE, DECLINED TO ACCEPT THIS CONCLUSION.  INSTEAD
IT DECLARED THAT THE BANK WAS NOT CHARGEABLE WITH NOTICE OF THE
TRUSTEE'S MISAPPROPRIATIONS THROUGH WITHDRAWAL AND USE OF TRUST FUNDS
DEPOSITED IN HIS PERSONAL ACCOUNT BY THE BARE FACT OF ITS KNOWLEDGE
THAT THE TRUSTEE HAD PREVIOUSLY PAID HIS PERSONAL DEBTS TO THE BANK
WITH TRUST FUNDS PASSED THROUGH HIS PERSONAL ACCOUNT.  BUT THE QUANAH
CASE PRESENTED A DIFFERENT QUESTION FROM THAT CONSIDERED BY THE TEXAS
COURT IN THE PRESENT CASE.  THE FORMER INVOLVED NO QUESTION OF ACTUAL
KNOWLEDGE AND PARTICIPATION BY THE BANK IN THE MISAPPROPRIATION OF
TRUST FUNDS.  THERE AN OFFICER OF A CORPORATION DEPOSITED ITS FUNDS IN
HIS PERSONAL ACCOUNT IN A BANK WITH WHICH THE CORPORATION HAD NO
ACCOUNT.  THE BANK HAD KNOWLEDGE THAT THE FUNDS OR SOME OF THEM
BELONGED TO THE CORPORATION AND NOT TO THE OFFICER PERSONALLY, BUT IT
PAID THEM OUT ON THE ORDER OF THE OFFICER, WHO APPROPRIATED THEM TO HIS
OWN USE.  IN HOLDING THAT THE BANK WAS NOT LIABLE, THE COURT ADOPTED
THE RULE, FOR WHICH IT FOUND SUPPORT IN THE DECISIONS OF OTHER COURTS
AND IN TEXT WRITERS, THAT THE BANK IN SUCH CIRCUMSTANCES IS NOT LIABLE
FOR THE MISAPPROPRIATION.  THE COURT WAS AT PAINS TO POINT OUT THAT A
DIFFERENT RULE WOULD HAVE BEEN APPLICABLE IF, BEFORE THE WITHDRAWALS
FROM THE ACCOUNT, "THE BANK (HAD) ACTIVELY PARTICIPATED IN THE
SPOLIATION OF THE TRUST FUND AND KNOWINGLY RECEIVED A PART OF THE FUND
TO ITSELF IN PAYMENT OF THE TRUSTEE'S INDIVIDUAL DEBT TO IT," CITING
ITS OPINION IN THE PRESENT CASE.  127 TEX. 407, 421, 422. 

EVEN IF WE THOUGHT THIS DISTINCTION NOT WELL TAKEN, NOTHING REQUIRES
THE STATE COURTS TO ADOPT THE RULE WHICH THE FEDERAL OR OTHER COURTS
MAY BELIEVE TO BE THE BETTER ONE, OR TO BE CONSISTENT IN THEIR
DECISIONS IF THEY DO NOT CHOOSE TO BE.  THAT THE DISTINCTION TAKEN IN
THE QUANAH CASE WAS ADVISEDLY MADE AND WAS NOT INTENDED TO MODIFY THE
RULE ANNOUNCED BY THE STATE COURT ON THE APPEAL IN THIS CASE, APPEARS
FROM THE OPINIONS IN BOTH CASES.  ON THE SAME DAY THAT THE FINAL
OPINION IN THE QUANAH CASE, FROM WHICH WE HAVE QUOTED, WAS DELIVERED BY
THE TEXAS SUPREME COURT, IT DENIED A PETITION FOR REHEARING IN THE
PRESENT CASE, WITH AN OPINION, 127 TEX. 184, WHICH LEFT UNDISTURBED THE
PRINCIPLES ANNOUNCED IN THE FIRST DECISION.  IN ITS FINAL OPINION IN
THE QUANAH CASE IT SAID: "  ...  WE HAVE AGAIN CAREFULLY REVIEWED THE
OPINION IN THE WICHITA ROYALTY CO. ET AL. V. CITY NATIONAL BANK OF
WICHITA FALLS CASE,  ...  DECIDED BY THIS COURT ON THE SAME DAY THE
CASE AT BAR WAS ORIGINALLY DECIDED.  ...  WE ARE SATISFIED WITH OUR
OPINION IN THE WICHITA ROYALTY COMPANY CASE AS EXPLAINED BY OUR OPINION
ON REHEARING IN THAT CASE."  127 TEX. 407, 421, 422.  AS THERE IS NO
CONTENTION THAT THE OPINION OF THE TEXAS COURT IN THIS CASE HAS IN ANY
OTHER RESPECT BEEN MODIFIED BY THE QUANAH OR ANY OTHER CASE IN THE
TEXAS SUPREME COURT, WE DO NOT DISCUSS OTHER PARTS OF THE OPINION BELOW
WHICH IT IS ARGUED FAIL TO FOLLOW THE OPINION OF THE STATE COURT. 

WE THINK THAT THE OPINION OF THE SUPREME COURT OF TEXAS IN THE
PRESENT CASE HAS NOT BEEN MODIFIED BY THE QUANAH CASE AND MUST BE
ACCEPTED AS STATING THE LAW OF TEXAS; AND THAT IT AFFORDS THE
APPROPRIATE GUIDE FOR THE DISTRICT COURT SO FAR AS IT MAY BE APPLICABLE
TO THE FACTS WHICH HAVE BEEN DEVELOPED ON THE TRIAL THERE.  AS THE
COURT BELOW PROPERLY DIRECTED THE REMAND FOR A STATEMENT OF FINDINGS
AND CONCLUSIONS OF LAW UNDER THE EQUITY RULE, THE DECREE WILL BE
AFFIRMED BUT THE PROCEEDINGS IN THE DISTRICT COURT WILL BE IN
CONFORMITY TO THIS OPINION.  AFFIRMED. 

FN1  THE OPINION ASSUMED THAT ALL THE FUNDS IN THE PERSONAL ACCOUNT
ON OCTOBER 8, 1925, WERE TRUST FUNDS AND THAT ON NOVEMBER 17, 1925, THE
TRUSTEE PAID HIS PERSONAL INDEBTEDNESS TO THE BANK FROM THOSE FUNDS. 
127 TEX. 158, 168.  IN ITS OPINION ON THE MOTION FOR REHEARING THE
COURT STATED THAT THESE ASSUMPTIONS WERE NOT TO BE TAKEN AS FORECLOSING
PROOF OF THE FACTS UPON THE NEW TRIAL.  127 TEX. 158, 184. 
..END :




















HELVERING V. REYNOLDS CO., 306 U.S. 110 


NO. 328.  ARGUED JANUARY 6, 1939.  - DECIDED JANUARY 30, 1939.  - 97
F.2D 302, AFFIRMED. 


1.  SECTION 22(A) OF THE REVENUE ACT OF 1928, DEFINING GROSS INCOME,
WAS SO GENERAL IN ITS TERMS THAT AN INTERPRETATIVE ADMINISTRATIVE
REGULATION DETERMINING WHETHER IT INCLUDED GAIN FROM THE RESALE BY A
CORPORATION OF ITS OWN STOCK WAS APPROPRIATE.  P. 114. 

2.  ARTICLE 66 OF TREASURY REGULATIONS 74, PROMULGATED UNDER THE
REVENUE ACT OF 1928, SPECIFICALLY PROVIDED THAT FOR THE PURPOSE OF THE
INCOME TAX NO GAIN OR LOSS IS REALIZED BY A CORPORATION FROM THE
PURCHASE OR SALE OF ITS OWN STOCK.  THIS ADMINISTRATIVE CONSTRUCTION OF
SINCE AT LEAST 1920.  MAY 2, 1934, BEFORE THE 1929 TAX OF THE CORPORATE
TAXPAYER HEREIN HAD BEEN FINALLY DETERMINED, THE TREASURY ADOPTED AN
AMENDMENT TO ARTICLE 66 SUBJECTING TO TAX ANY GAIN DERIVED BY A
CORPORATION FROM THE SALE OF ITS OWN SHARES WHERE IT "DEALS IN ITS OWN
SHARES AS IT MIGHT IN THE SHARES OF ANOTHER CORPORATION."  HELD: 

(1)  THE ASCERTAINMENT OF GAIN BY THE CORPORATION FOR THE TAXABLE
YEAR 1929 IS TO BE DETERMINED IN CONFORMITY TO THE REGULATION THEN IN
FORCE AND NOT BY THE AMENDMENT.  P. 115. 

(2)  THE REGULATION IN FORCE IN THE TAXABLE YEAR 1929 MUST BE TAKEN
TO HAVE BEEN APPROVED AND TO HAVE BEEN GIVEN THE FORCE OF LAW BY
CONGRESS.  P. 115. 

(3)  SECTION 605 OF THE 1928 ACT DID NOT AUTHORIZE THE TREASURY TO
REPEAL THE RULE OF LAW THAT EXISTED DURING THE PERIOD FOR WHICH THE TAX
WAS IMPOSED.  P. 116. 

(4)  THE REENACTMENT OF SEC. 22(A) IN THE REVENUE ACTS OF 1936 AND
1938, WITHOUT MORE, MAY NOT BE TAKEN AS SANCTION BY CONGRESS OF A
RETROACTIVE APPLICATION OF THE AMENDED REGULATION.  P. 117. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. R.J. REYNOLDS TOBACCO
CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 305 U.S. 587, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 35 B.T.A. 949, WHICH SUSTAINED THE COMMISSIONER'S
DETERMINATION OF A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION FOR DECISION IS WHETHER GAIN ACCRUING TO A
CORPORATION CONSEQUENT ON THE PURCHASE AND RESALE OF ITS OWN SHARES
CONSTITUTES GROSS INCOME WITHIN THE MEANING OF SEC. 22(A) OF THE
REVENUE ACT OF 1928.  FN1 

THE RESPONDENT, A NEW JERSEY CORPORATION, ON OCCASION BETWEEN 1921
AND 1929, PURCHASED ITS OWN CLASS B COMMON STOCK FOR REASONS OF POLICY,
SUCH AS THE ELIMINATION OF A VERY LARGE SINGLE HOLDING, THE BROADENING
OF THE OWNERSHIP OF THE STOCK, AND THE SUPPORT OF THE MARKET TO PROTECT
THE INVESTMENTS OF EMPLOYE SHAREHOLDERS.  THIS STOCK WAS RESOLD FROM
TIME TO TIME.  WHILE HELD IT WAS TREATED AS TREASURY STOCK AND THE COST
OF IT WAS ENTERED IN THE ACCOUNTS AS "INVESTMENTS IN NON-COMPETITIVE
COMPANIES."  THE BOOKS SHOWED NO INCREASE OR REDUCTION OF CAPITAL STOCK
ON ACCOUNT OF PURCHASES OR SALES.  DURING 1929 THE COMPANY SOLD SHARES
ACQUIRED IN THAT AND PRIOR YEARS FOR A SUM WHICH EXCEEDED COST BY
$286,581.21, WHICH AMOUNT WAS ENTERED IN THE BOOKS AS A CASH ITEM AND
ADDED TO SURPLUS.  IN ITS INCOME TAX RETURN FOR 1929 THE COMPANY LISTED
THIS GAIN UNDER THE CAPTION "OTHER ITEMS OF NON-TAXABLE INCOME," AS
"PROFIT R.J.R. STOCK." 

THE COMMISSIONER DETERMINED A DEFICIENCY IN THE TAX PAID FOR 1929
INVOLVING ITEMS NOT HERE IN CONTROVERSY AND THE COMPANY APPEALED TO THE
BOARD OF TAX APPEALS WHERE THOSE ITEMS WERE ADJUSTED.  BEFORE THE CASE
WAS CLOSED THE COMMISSIONER BY AMENDED ANSWER ALLEGED THAT THE
TAXPAYER'S NET INCOME SHOULD BE INCREASED BY THE AMOUNT OF THE "NET
PROFIT REALIZED  ...  THROUGH TRAFFICKING IN CLASS B COMMON STOCK OF
THE  ...  COMPANY," AND CLAIMED A RESULTING DEFICIENCY.  HE BASED HIS
CLAIM UPON TREASURY REGULATION 74, ARTICLE 66, AS AMENDED BY A TREASURY
DECISION OF MAY 2, 1934, FN2  WHICH STATES "WHERE A CORPORATION DEALS
IN ITS OWN SHARES AS IT MIGHT IN THE SHARES OF ANOTHER CORPORATION, THE
RESULTING GAIN OR LOSS IS TO BE COMPUTED IN THE SAME MANNER AS THOUGH
THE CORPORATION WERE DEALING IN THE SHARES OF ANOTHER." 

THE BOARD, AFTER FINDING THE FACTS IN DETAIL, SUSTAINED THE
COMMISSIONER.  FN3  THE CIRCUIT COURT OF APPEALS REVERSED THE BOARD'S
RULING.  FN4  BECAUSE OF ASSERTED CONFLICT WE GRANTED THE WRIT OF
CERTIORARI.  FN5 

GAINS, PROFITS, AND INCOME DERIVED FROM SALARIES, WAGES, OR
COMPENSATION FOR PERSONAL SERVICE, OF WHATEVER KIND AND IN WHATEVER
FORM PAID, OR FROM PROFESSIONS, VOCATIONS, TRADES, BUSINESSES,
COMMERCE, OR SALES, OR DEALINGS IN PROPERTY, WHETHER REAL OR PERSONAL,
GROWING OUT OF THE OWNERSHIP OR USE OF OR INTEREST IN SUCH PROPERTY;
ALSO FROM INTEREST, RENT, DIVIDENDS, SECURITIES, OR THE TRANSACTION OF
ANY BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR PROFITS AND
INCOME DERIVED FROM ANY SOURCE WHATEVER."  SECTION 62 DIRECTS THE
COMMISSIONER, "WITH THE APPROVAL OF THE SECRETARY" OF THE TREASURY, TO
"PRESCRIBE AND PUBLISH ALL NEEDFUL RULES AND REGULATIONS FOR THE
ENFORCEMENT OF THIS TITLE."  ARTICLE 66 OF TREASURY REGULATIONS 74,
PROMULGATED UNDER THE ACT OF 1928, SO FAR AS MATERIAL, IS:  "IF  ...
THE CORPORATION PURCHASES ANY OF ITS STOCK AND HOLDS IT AS TREASURY
STOCK, THE SALE OF SUCH STOCK WILL BE CONSIDERED A CAPITAL TRANSACTION
AND THE PROCEEDS OF SUCH SALE WILL BE TREATED AS CAPITAL AND WILL NOT
CONSTITUTE INCOME OF THE CORPORATION.  A CORPORATION REALIZES NO GAIN
OR LOSS FROM THE PURCHASE OR SALE OF ITS OWN STOCK." 

PETITIONER CONTENDS THAT, AS CONGRESS MUST BE TAKEN TO HAVE EXERCISED
ITS CONSTITUTIONAL POWER TO THE FULLEST EXTENT IN LAYING THE TAX, SEC.
22(A) SHOULD BE HELD TO INCLUDE THE GAIN REALIZED FROM SALES OF A
CORPORATION'S OWN STOCK, AND THE QUOTED REGULATION CANNOT RESTRICT THE
SCOPE OF THE STATUTORY DEFINITION.  THE RESPONDENT REPLIES THAT SUCH
GAIN IS CAPITAL GAIN AND NOT INCOME, AS IS DEMONSTRATED BY THE THEORY
AND PRACTICE OF ACCOUNTING  FN6  AND BY COURT DECISIONS.  FN7 THE COURT
BELOW FOUND IT UNNECESSARY TO DECIDE THIS ISSUE, HOLDING THAT WHETHER
THE INCREMENT IS INCOME IS AT LEAST A DEBATABLE QUESTION AND THE
REGULATION WAS, THEREFORE, PROPER AS AN INTERPRETATION OF THE MEANING
OF THE SECTION.  WE AGREE THAT SEC. 22(A) IS SO GENERAL IN ITS TERMS AS
TO RENDER AN INTERPRETATIVE REGULATION APPROPRIATE.  FN8 

THE ADMINISTRATIVE CONSTRUCTION EMBODIED IN THE REGULATION HAS, SINCE
AT LEAST 1920, BEEN UNIFORM WITH RESPECT TO EACH OF THE REVENUE ACTS
FROM THAT OF 1913 TO THAT OF 1932, AS EVIDENCED BY TREASURY RULINGS AND
REGULATIONS, AND DECISIONS OF THE BOARD OF TAX APPEALS.  FN9  IN THE
MEANTIME SUCCESSIVE REVENUE ACTS HAVE REENACTED, WITHOUT ALTERATION,
THE DEFINITION OF GROSS INCOME AS IT STOOD IN THE ACTS OF 1913, 1916,
AND 1918.  FN10  UNDER THE ESTABLISHED RULE CONGRESS MUST BE TAKEN TO
HAVE APPROVED THE ADMINISTRATIVE CONSTRUCTION AND THEREBY TO HAVE GIVEN
IT THE FORCE OF LAW. 

THE PETITIONER CONCEDES THAT IF NOTHING FURTHER APPEARED HE WOULD BE
BOUND TO APPLY THE STATUTE IN CONFORMITY TO THE REGULATION.  HE
ASSERTS, HOWEVER, THAT THE AMENDMENT ADOPTED BY THE TREASURY MAY 2,
1934, WHILE THIS CAUSE WAS PENDING BEFORE THE BOARD, IS CONTROLLING. 
BY THE AMENDMENT ARTICLE 66 IS MADE TO READ:  "WHETHER THE ACQUISITION
OR DISPOSITION BY A CORPORATION OF SHARES OF ITS OWN CAPITAL STOCK
GIVES RISE TO TAXABLE GAIN OR DEDUCTIBLE LOSS DEPENDS UPON THE REAL
NATURE OF THE TRANSACTION, WHICH IS TO BE ASCERTAINED FROM ALL ITS
FACTS AND CIRCUMSTANCES.  ... 

"BUT WHERE A CORPORATION DEALS IN ITS OWN SHARES AS IT MIGHT IN THE
SHARES OF ANOTHER CORPORATION, THE RESULTING GAIN OR LOSS IS TO BE
COMPUTED IN THE SAME MANNER AS THOUGH THE CORPORATION WERE DEALING IN
THE SHARES OF ANOTHER.  ...  ANY GAIN DERIVED FROM SUCH TRANSACTIONS IS
SUBJECT TO TAX, AND ANY LOSS SUSTAINED IS ALLOWABLE AS A DEDUCTION
WHERE PERMITTED BY THE PROVISIONS OF APPLICABLE STATUTES." 

PETITIONER URGES THAT THE AMENDMENT OPERATES RETROACTIVELY AND
GOVERNS THE ASCERTAINMENT OF GROSS INCOME FOR TAXABLE PERIODS PRIOR TO
THE DATE OF ITS PROMULGATION, AND, FURTHER, SINCE CONGRESS HAS
REENACTED SEC. 22(A) IN THE REVENUE ACTS OF 1936 AND 1938, IT HAS
APPROVED THE REGULATION AS AMENDED.  WE HOLD THAT THE RESPONDENT'S TAX
LIABILITY FOR THE YEAR 1929 IS TO BE DETERMINED IN CONFORMITY TO THE
REGULATION THEN IN FORCE. 

REGULATION OR TREASURY DECISION RELATING TO THE INTERNAL-REVENUE LAWS
IS AMENDED BY A SUBSEQUENT REGULATION OR TREASURY DECISION MADE BY THE
SECRETARY OR BY THE COMMISSIONER WITH THE APPROVAL OF THE SECRETARY,
SUCH SUBSEQUENT REGULATION OR TREASURY DECISION MAY, WITH THE APPROVAL
OF THE SECRETARY, BE APPLIED WITHOUT RETROACTIVE EFFECT."  FN11  IT IS
CLEAR FROM THIS PROVISION THAT CONGRESS INTENDED TO GIVE TO THE
TREASURY POWER TO CORRECT MISINTERPRETATIONS, INACCURACIES, OR
OMISSIONS IN THE REGULATIONS AND THEREBY TO AFFECT CASES IN WHICH THE
TAXPAYER'S LIABILITY HAD NOT BEEN FINALLY DETERMINED, UNLESS, IN THE
JUDGMENT OF THE TREASURY, SOME GOOD REASON REQUIRED THAT SUCH
ALTERATIONS OPERATE ONLY PROSPECTIVELY.  THE QUESTION IS WHETHER THE
GRANTED POWER MAY BE EXERCISED IN AN INSTANCE WHERE, BY REPEATED
REENACTMENT OF THE STATUTE, CONGRESS HAS GIVEN ITS SANCTION TO THE
EXISTING REGULATION. 

SINCE THE LEGISLATIVE APPROVAL OF EXISTING REGULATIONS BY REENACTMENT
OF THE STATUTORY PROVISION TO WHICH THEY APPERTAIN GIVES SUCH
REGULATIONS THE FORCE OF LAW, WE THINK THAT CONGRESS DID NOT INTEND TO
AUTHORIZE THE TREASURY TO REPEAL THE RULE OF LAW THAT EXISTED DURING
THE PERIOD FOR WHICH THE TAX IS IMPOSED.  WE NEED NOT NOW DETERMINE
WHETHER, AS HAS BEEN SUGGESTED,  FN12  THE ALTERNATION OF THE EXISTING
RULE, EVEN FOR THE FUTURE, REQUIRES A LEGISLATIVE DECLARATION OR MAY BE
SHOWN BY REENACTMENT OF THE STATUTORY PROVISION UNALTERED AFTER A
CHANGE IN THE APPLICABLE REGULATION.  AS THE PETITIONER POINTS OUT,
CONGRESS HAS, IN THE REVENUE ACTS OF 1936 AND 1938, RETAINED SEC. 22(A)
OF THE 1928 ACT IN HAEC VERBA.  FROM THIS IT IS ARGUED THAT CONGRESS
HAS APPROVED THE AMENDED REGULATION.  IT MAY BE THAT BY THE PASSAGE OF
THE REVENUE ACT OF 1936 THE TREASURY WAS AUTHORIZED THEREAFTER TO APPLY
THE REGULATION IN ITS AMENDED FORM.  BUT WE HAVE NO OCCASION TO DECIDE
THIS QUESTION SINCE WE ARE OF OPINION THAT THE REENACTMENT OF THE
ENFORCEMENT OF THE AMENDMENT, IN THE TEETH OF THE FORMER REGULATION
WHICH RECEIVED CONGRESSIONAL APPROVAL, BY THE PASSAGE OF SUCCESSIVE
REVENUE ACTS INCLUDING THAT OF 1928. 

THE JUDGMENT IS AFFIRMED. 

FN1  C. 852, 45 STAT. 791. 

FN2  TREASURY DECISION 4430, XIII-1 CUMULATIVE BULLETIN 36. 

FN3  35 B.T.A. 949. 

FN4  R.J. REYNOLDS TOBACCO CO. V. COMMISSIONER, 97 F.2D 302. 

FN5  SEE FIRST CHROLD CORP. V. COMMISSIONER, POST, P. 117. 

FN6  SEE E.G. DICKINSON, "ACCOUNTING PRACTICE AND PROCEDURE," 130,
132; SUNLEY AND PINKERTON, "CORPORATION ACCOUNTING," 121; STREIGHTOFF,
"ADVANCED ACCOUNTING," 134-5. 

FN7  JOHNSON V. COMMISSIONER, 56 F.2D 58; SQUIBB & SONS V. HELVERING,
98 F.2D 69; COMPARE, BORG V. INTERNATIONAL SILVER CO., 11 F.2D 143,
147; COMMISSIONER V. INLAND FINANCE CO., 63 F.2D 886; CARTER HOTEL CO.
V. COMMISSIONER, 67 F.2D 642. 

FN8  MORRISSEY V. COMMISSIONER, 296 U.S. 344, 354. 

FN9  SEE L.O. 1035, 2 C.B. 132, 3 C.B. 160; L.O. 296, 5 C.B. 210;
L.O. 426, 5 C.B. 210; A.A.R. 693, 5 C.B. 207; I.T. 1198, C.B. I-1, 275;
A.A.R. 799, C.B. I-1, 374; I.T. 1802, C.B. II-2, 267.  REG. 45, ARTS.
542 AND 563; REG. 62, ARTS. 543 AND 563; REG. 65, ARTS. 543 AND 563;
REG. 69, ARTS. 543 AND 563; REG. 74, ARTS. 66 AND 176; REG. 77, ARTS.
66 AND 176.  SIMMONS & HAMMOND MFG. CO., 1 B.T.A. 803; COOPERATIVE
FURNITURE CO., 2 B.T.A. 165; ATLANTIC CARTON CORP., 2 B.T.A. 380;
HUTCHINS LUMBER & STORAGE CO., 4 B.T.A. 705; FARMERS DEPOSIT NAT. BANK,
5 B.T.A. 520; H.S. CROCKER CO., 5 B.T.A. 537, 541; INTERURBAN
CONSTRUCTION CO., 5 B.T.A. 529; LIBERTY AGENCY CO., 5 B.T.A. 778; UNION
TRUST CO., 12 B.T.A. 688, 690; 105 WEST 55TH STREET, INC., 15 B.T.A.
210, 213; AMERICAN CIGAR CO., 21 B.T.A. 464, 495; CARTER HOTEL CO., 25
B.T.A. 933. 

FN10  SEE R.A. 1913, SEC. II, B, 38 STAT. 167; R.A. 1916, SEC. 2(A),
39 STAT. 757; R.A. 1918, SEC. 213(A), 40 STAT. 1065; R.A. 1921, SEC.
213(A), 42 STAT. 238; R.A. 1924, SEC. 213(A), 43 STAT. 267; R.A. 1926,
SEC. 213(A), 44 STAT. 23; R.A. 1928, SEC. 22(A), 45 STAT. 797; R.A.
1932, SEC. 22(A), 47 STAT. 178. 

FN11  45 STAT. 874.  SOMEWHAT SIMILAR PROVISIONS WERE CONTAINED IN
EARLIER ACTS.  SEE REVENUE ACT OF 1921, SEC. 1314, 42 STAT. 314;
REVENUE ACT OF 1926, SEC. 1108(A), 44 STAT. 114. 

FN12  SQUIBB & SONS V. HELVERING, 98 F.2D 69, 70. 
..END :












FIRST CHROLD CORP. V. COMM'R, 306 U.S. 117 


NO. 385.  ARGUED JANUARY 6, 1939.  - DECIDED JANUARY 30, 1939.  - 97
F.2D 22, REVERSED. 


DECIDED ON THE AUTHORITY OF HELVERING V. R.J. REYNOLDS TOBACCO CO.,
ANTE, P. 110. 

FIRST CHROLD CORPORATION V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 305 U.S. 589, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS SUSTAINING A DETERMINATION OF DEFICIENCY IN
INCOME TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE SAME QUESTION AS THAT INVOLVED IN NO. 328,
HELVERING V. R.J. REYNOLDS TOBACCO CO., ANTE, P. 110.  CERTIORARI WAS
GRANTED BECAUSE OF A CONFLICT IN THE DECISIONS BELOW.  THE STATUTORY
PROVISION UNDER WHICH THIS CASE ARISES IS SEC. 22(A) OF THE REVENUE ACT
OF 1932, WHICH IS THE SAME AS THE CORRESPONDING SECTION OF THE REVENUE
ACT OF 1928.  THE REGULATIONS, ORIGINAL AND AMENDED, HAVE THE SAME
RELATION TO THIS CONTROVERSY AS TO THAT IN NO. 328.  THE BOARD OF TAX
APPEALS SUSTAINED A DETERMINATION OF A DEFICIENCY IN THE PETITIONER'S
TAX FOR THE CALENDAR YEAR 1933 AND THE CIRCUIT COURT OF APPEALS
AFFIRMED THE BOARD'S RULING.  FN1 

FOR THE REASONS GIVEN IN NO. 328 THE JUDGMENT MUST BE REVERSED. 

FN1  97 F.2D 22. 
..END :



















TENNESSEE POWER CO. V. T.V.A., 306 U.S. 118 


NO. 27.  ARGUED NOVEMBER 14, 15, 1938.  - DECIDED JANUARY 30, 1939.  -
21 F.SUPP.  947, AFFIRMED. 


1.  THE PRINCIPLE PERMITTING SUIT AGAINST AN AGENT OF THE GOVERNMENT
TO RESTRAIN EXECUTION OF AN UNCONSTITUTIONAL STATUTE PROTECTS ONLY
LEGAL RIGHTS.  P. 137. 

2.  FRANCHISES TO BE A CORPORATION AND TO FUNCTION AS A PUBLIC
UTILITY AND NON-EXCLUSIVE FRANCHISES TO OCCUPY AND USE PUBLIC PROPERTY
AND PLACES FOR SERVICE OF THE PUBLIC, DO NOT GRANT FREEDOM FROM
COMPETITION.  P. 138. 

3.  THE VALIDITY OF A STATUTORY GRANT OF POWER CAN NOT BE CHALLENGED
MERELY BECAUSE ITS EXERCISE RESULTS IN HARMFUL COMPETITION.  THE DAMAGE
IS DAMNUM ABSQUE INJURIA.  P. 139. 

4.  STATE LAWS REQUIRING ELECTRIC POWER COMPANIES TO OBTAIN
CERTIFICATES OF CONVENIENCE AND NECESSITY AS A CONDITION TO DOING
BUSINESS DO NOT CONFER UPON THOSE POSSESSING SUCH CERTIFICATES A
STANDING TO ENJOIN OPERATIONS OF THE TENNESSEE VALLEY AUTHORITY, WHICH,
THOUGH IT HAS NO SUCH CERTIFICATE, OPERATES WITH CONSENT OF THE STATE. 
P. 141. 

5.  THE APPELLANT POWER COMPANIES MAY NOT RAISE, IN THIS CASE, ANY
QUESTION OF DISCRIMINATION FORBIDDEN BY THE FOURTEENTH AMENDMENT
INVOLVED IN STATE EXEMPTION OF THE TENNESSEE VALLEY AUTHORITY FROM
COMMISSION REGULATION.  FROST V. CORPORATION COMMISSION, 278 U.S. 515,
DISTINGUISHED.  P. 143. 

6.  THE COMPETITION OF THE TENNESSEE VALLEY AUTHORITY IN UNDERSELLING
THE POWER COMPANIES AND IN FIXING RESALE RATES BY CONTRACT, DOES NOT
AMOUNT TO REGULATION OF THEIR RATES IN VIOLATION OF THE TENTH
AMENDMENT, AND GIVES RISE TO NO CAUSE OF ACTION UNDER THAT AMENDMENT OR
UNDER THE NINTH AMENDMENT.  P. 143. 

7.  THE FINDINGS AND EVIDENCE IN THIS CASE DO NOT SUSTAIN THE CHARGE
OF A CONSPIRACY BETWEEN THE TENNESSEE VALLEY AUTHORITY AND THE PUBLIC
WORKS ADMINISTRATOR TO INTIMIDATE THE APPELLANT POWER COMPANIES INTO
SELLING THEIR EXISTING SYSTEMS WHERE THE AUTHORITY DESIRES TO SEIZE THE
MARKET FOR ELECTRICITY.  P. 144. 

COOPERATION BY TWO FEDERAL OFFICIALS, ONE ACTING UNDER A STATUTE
WHEREBY FUNDS ARE PROVIDED FOR THE ERECTION OF MUNICIPAL PLANTS, AND
THE OTHER UNDER A STATUTE AUTHORIZING THE PRODUCTION OF ELECTRICITY AND
ITS SALE TO SUCH PLANTS, IN COMPETITION WITH THE APPELLANTS, DOES NOT
SPELL CONSPIRACY TO INJURE THEIR BUSINESS.  P. 146. 

TENNESSEE ELECTRIC POWER CO. ET AL. V. TENNESSEE VALLEY AUTHORITY ET
AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF TENNESSEE. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES WHICH
DISMISSED A BILL FILED BY NUMEROUS ELECTRIC POWER COMPANIES WHEREIN
THEY SOUGHT TO ENJOIN THE TENNESSEE VALLEY AUTHORITY AND ITS THREE
EXECUTIVE OFFICERS AND DIRECTORS, FROM GENERATING, DISTRIBUTING AND
SELLING ELECTRIC POWER AND FROM OTHER INJURIOUS AND ALLEGEDLY
UNCONSTITUTIONAL ACTIVITIES IN HARMFUL AND DESTRUCTIVE COMPETITION WITH
THE APPELLANTS. 

THE WATER POWER IS NOT BEING, AND WILL NOT BE, CONSTITUTIONALLY
CREATED.  THE FEDERAL GOVERNMENT WILL ACQUIRE NO TITLE TO SUCH WATER
POWER. 

THE ELECTRICITY WILL NOT RESULT INCIDENTALLY TO AN EXERCISE OF THE
IMPLIED POWER TO IMPROVE NAVIGATION.  POWER DEVELOPMENT IS AN
INDEPENDENT, IF NOT THE PRIMARY, PURPOSE.  THIS IS PLAIN ON THE FACE OF
THE ACT. 

CONSIDERED AS A WHOLE, THE APPELLEES' UNIFIED PLAN IS PLAINLY A POWER
PROJECT. 

IN ANY EVENT THE WATER POWER CREATED BY THE TRIBUTARY RESERVOIRS IS
NOT INCIDENTAL TO THE IMPROVEMENT OF NAVIGATION. 

BOTH THE STATUTORY SCHEME AND THE ADMINISTRATIVE PLAN ARE PLAINLY
ATTEMPTS, IN THE GUISE OF EXERCISING THE IMPLIED POWER TO IMPROVE
STREAMS FOR NAVIGATION, TO EXERCISE POWER NOT GRANTED BUT FORBIDDEN TO
THE FEDERAL GOVERNMENT.  SEE MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 423;
LINDER V. UNITED STATES, 268 U.S. 5; CARTER V. CARTER COAL CO., 298
U.S. 238, 291; CHILD LABOR TAX CASE, 259 U.S. 20, 37. 

THE TRIAL COURT DID NOT RECOGNIZE THAT THE QUESTION IS WHETHER THE
WATER POWER IS TO BE THE INCIDENTAL RESULT OF THE OPERATION OF
STRUCTURES WHICH HAVE A REAL, SUBSTANTIAL AND BONA FIDE RELATION TO THE
IMPROVEMENT OF NAVIGATION.  APPARENTLY, IT DEEMED THE CONTROLLING
QUESTION TO BE WHETHER POWER DEVELOPMENT WOULD BE "INCONSISTENT" WITH
OR OBSTRUCTIVE OF NAVIGATION, AND THOUGHT THAT UNDER THE EUPHONIOUS
TITLE OF A "MULTIPLE PURPOSE PROJECT" THE GOVERNMENT MAY YOKE TOGETHER
CONSTITUTIONAL AND UNCONSTITUTIONAL ENTERPRISES.  CONSTITUTIONAL
LIMITATIONS MAY NOT BE SO EVADED.  RETIREMENT BOARD V. ALTON R. CO.,
295 U.S. 330, 362; EMPLOYERS' LIABILITY CASES, 207 U.S. 463, 501. 

NONE OF THE COMMERCIAL WATER POWER IS CREATED BY THE OPERATION OF ANY
FLOOD CONTROL STRUCTURES INCLUDED IN THE UNIFIED PLAN. 

FLOOD CONTROL IS MINOR, IF NOT PRETENSIVE, AND ANY ATTEMPT TO SUSTAIN
THAT PLAN AS A FLOOD CONTROL PROJECT FAILS AS AN ATTEMPT TO ACCOMPLISH
A FORBIDDEN OBJECT UNDER THE PRETENSE OF EXERCISING A CONSTITUTIONAL
POWER.  UNITED STATES V. CONSTANTINE, 296 U.S. 287, 289.  IT IS PLAIN
ON THE FACE OF THE ACT THAT POWER DEVELOPMENT IS NOT INCIDENTAL TO
FLOOD CONTROL.  THE FEDERAL POWER OVER FLOOD CONTROL DOES NOT EXTEND
BEYOND THE PROTECTION OF NAVIGATION CHANNELS AND WORKS.  CF. JACKSON V.
UNITED STATES, 230 U.S. 1, 18, 23; CUBBINS V. MISSISSIPPI RIVER COMM'N,
241 U.S. 351; 204 F. 299; LEOVY V. UNITED STATES, 177 U.S. 621;
MANIGAULT V. SPRINGS, 199 U.S. 473; ORR V. ALLEN, 248 U.S. 35; ST.
LOUIS S.W. RY. CO. V. BOARD OF DIRECTORS, 207 F. 338. 

THE ELECTRICITY WILL NOT BE PRODUCED AS AN INCIDENT OF THE EXERCISE
OF THE WAR OR NATIONAL DEFENSE POWER, AND IT HAS NEVER BEEN HELD THAT
IN TIME OF PEACE THE FEDERAL GOVERNMENT MAY CARRY ON ALL OF THE
BUSINESSES WHICH MIGHT BE COMMANDEERED OR WHICH MIGHT PRODUCE ARTICLES
ESSENTIAL OR CONVENIENT IN THE PROSECUTION OF A WAR. 

NEITHER THE STATUTORY NOR THE ADMINISTRATIVE METHOD OF DISPOSING OF
THE ELECTRICITY IS WITHIN THE CONSTITUTIONAL POWER OF THE FEDERAL
GOVERNMENT.  EACH VIOLATES THE FIFTH, NINTH AND TENTH AMENDMENTS. 

THE POWER TO DISPOSE OF FEDERAL PROPERTY DOES NOT INCLUDE ANY POWER
OF REGULATION, OR THE POWER TO ENGAGE IN THE CONDUCT OR MANAGEMENT OF A
BUSINESS HAVING NO RELATION TO THE PURPOSES FOR WHICH THE FEDERAL
GOVERNMENT WAS ESTABLISHED.  SEE KANSAS V. COLORADO, 206 U.S. 46, 89,
92; SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437, 457-459; VAN
BROCKLIN V. ANDERSON, 117 U.S. 151, 158; FLORIDA V. UNITED STATES, 282
U.S. 194, 211-212; ILLINOIS CENTRAL R. CO. V. PUBLIC UTILITIES COMM'N,
245 U.S. 493; RAILROAD COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S.
563; NEW YORK V. UNITED STATES, 257 U.S. 591; ARKANSAS RAILROAD COMM'N
V. CHICAGO, R.I. & P.R. CO., 274 U.S. 597; SCHECHTER POULTRY CORP. V.
UNITED STATES, 295 U.S. 495, 546-548; UNITED STATES V. BUTLER, 297 U.S.
1. 

IT SURELY MAY NOT BE USED FOR THE PURPOSE, OR WITH THE DIRECT AND
NECESSARY EFFECT, OF GOVERNING CONCERNS RESERVED TO THE STATES AND THE
PEOPLE OR OF UPSETTING THE BALANCE OF OUR DUAL SYSTEM. 

THE DISTRIBUTION AND SALE OF ELECTRICITY WITHIN THE STATE IS A LOCAL
PUBLIC SERVICE, SUBJECT TO FULL AND COMPLETE REGULATION BY THE STATE
UNDER ITS POLICE POWERS.  UNION DRY GOODS CO. V. GEORGIA PUBLIC SERVICE
CORP., 248 U.S. 372, 374; MUNN V. ILLINOIS, 94 U.S. 113, 124; NEBBIA V.
NEW YORK, 291 U.S. 502, 524; SLAUGHTER-HOUSE CASES, 83 U.S. 36. 
FEDERAL INTERFERENCE IN THIS FIELD "IS PLAINLY REPUGNANT TO THE
EXCLUSIVE POWER OF THE STATE OVER THE SAME SUBJECT," LICENSE TAX CASES,
5 WALL.  462, 471; FOR THE EXERCISE OF STATE POLICE POWER "IS NOT
SUBJECT TO NATIONAL SUPERVISION."  SOUTH CAROLINA V. UNITED STATES, 199
U.S. 437, 453. 

UNDER THE NINTH AMENDMENT, THE PEOPLE HAVE THE RIGHT TO EARN A
LIVELIHOOD, AND ACQUIRE AND USE PROPERTY BY ENGAGING IN THE ELECTRIC
BUSINESS, SUBJECT ONLY TO STATE REGULATION.  CF. STEWARD MACHINE CO. V.
DAVIS, 301 U.S. 548; NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262; DENT
V. WEST VIRGINIA, 129 U.S. 114, 121; DUPLEX CO. V. DEERING, 254 U.S.
443, 465; BUCHANAN V. WARLEY, 245 U.S. 60, 74; LIGGETT CO. V.
BALDRIDGE, 278 U.S. 105, 111; TRUAX V. CORRIGAN, 257 U.S. 312, 327. 

TO THE EXTENT THAT FEDERAL STATUTORY AND ADMINISTRATIVE METHODS OF
DISPOSING OF PROPERTY ARE CONSTITUTIONAL, THEY ARE SUPREME.  IF NOT
HELD WITHIN THEIR PROPER LIMITATIONS THEY WILL DESTROY RESERVED POWERS
AND RIGHTS OF STATE AND PEOPLE.  SEE BUTLER V. UNITED STATES, 297 U.S.
1, 74. 

BOTH THE ACT AND THE UNIFIED PLAN MUST BE JUDGED BY THEIR NATURAL AND
REASONABLE EFFECT IN THE SITUATION IN WHICH THEY OPERATE.  COLLINS V.
NEW HAMPSHIRE, 171 U.S. 30, 33-34; STANDARD OIL CO. V. GRAVES, 249 U.S.
389, 394; UNITED STATES V. REYNOLDS, 235 U.S. 133, 148; HAMMER V.
DAGENHART, 247 U.S. 251, 275; WESTERN UNION TELEGRAPH CO. V. KANSAS,
216 U.S. 1, 27; STEWART DRY GOODS CO. V. LEWIS, 294 U.S. 550, 555;
MINNESOTA V. BARBER, 136 U.S. 313, 319. 

PURSUANT TO THE INTENT AND PURPOSE OF THE ACT THE AUTHORITY IS
ENGAGING IN THE BUSINESS OF SUPPLYING ELECTRICITY TO THE PUBLIC WITHIN
THE STATES, AND REGULATING ITS OWN RATES AND SERVICE, THE RATES AND
SERVICE OF DISTRIBUTORS OF ITS POWER, AND THE RATES OF PRIVATELY OWNED
AND STATE-REGULATED UTILITIES.  IF THIS IS VALID, THE POWERS OF THE
STATES AND THE RIGHTS OF THE PEOPLE TO ENGAGE IN THE BUSINESS, ARE PRO
TANTO DESTROYED.  CF. WALLA WALLA CITY V. WALLA WALLA WATER CO., 172
U.S. 1, 11; UNITED STATES V. BUTLER, 297 U.S. 1, 70-71; FROST V.
RAILROAD COMMISSION, 271 U.S. 583; PANAMA REFINING CO. V. UNITED
STATES, 293 U.S. 388. 

THERE IS NO REAL OR SUBSTANTIAL RELATION BETWEEN THE POWER TO DISPOSE
OF FEDERAL PROPERTY AND THE REGULATION OF LOCAL ELECTRIC RATES OR THE
ESTABLISHMENT WITHIN THE STATES OF A FEDERAL POLICY OF HAVING THE LOCAL
ELECTRIC BUSINESS CARRIED ON BY PUBLIC OR NON-PROFIT ORGANIZATIONS. 

THE NATURAL AND REASONABLE EFFECT OF THE OPERATION OF THE ACT, BY
BRINGING ABOUT A FEDERAL MONOPOLY OF THE LOCAL ELECTRIC BUSINESS, IS TO
DEPRIVE THE STATES OF IMPORTANT TAX REVENUES. 

THE FEDERAL GOVERNMENT MAY NOT EXERCISE ITS POWER OF TAXATION SO AS
SUBSTANTIALLY TO BURDEN OR INTERFERE WITH THE FUNCTIONS OF THE STATES. 
COLLECTOR V. DAY, 11 WALL.  113, 124; POLLOCK V. FARMERS LOAN & TRUST
CO., 157 U.S. 429, 584; AMBROSINI V. UNITED STATES, 187 U.S. 1. 
HELVERING V. GERHARDT, 304 U.S. 405; ALLEN V. REGENTS, 304 U.S. 439,
DISTINGUISHED. 

THE OBJECTION THAT THE STATUTORY AND ADMINISTRATIVE SCHEME IS
UNAUTHORIZED BY THE CONSTITUTION AND CONTRAVENES THE FIFTH, NINTH AND
TENTH AMENDMENTS CAN NOT BE CURED BY THE CONSENT OF A STATE.  ASHTON V.
CAMERON COUNTY WATER DIST., 298 U.S. 513, 531; UNITED STATES V. BUTLER,
297 U.S. 1, 72; CARTER V. CARTER COAL CO., 298 U.S. 295.  STEWARD
MACHINE CO. V. DAVIS, 301 U.S. 548, DISTINGUISHED.  SEE UNITED STATES
V. BEKINS, 304 U.S. 27, 53; NORTHERN PACIFIC R. CO. V. MINNESOTA EX
REL. DULUTH, 208 U.S. 583; ATLANTIC COAST LINE V. GOLDSBORO, 232 U.S.
548; DENVER & RIO GRANDE R. CO. V. DENVER, 250 U.S. 241; KELLER V.
UNITED STATES, 213 U.S. 138, 144; NEW YORK V. MILN, 11 PET. 102, 139. 

THE PRINCIPLES LAID DOWN IN THE ASHWANDER CASE, 297 U.S. 288, CONDEMN
THE METHOD OF DISPOSAL AUTHORIZED BY THE ACT AND ADOPTED BY THE UNIFIED
PLAN. 

ONE THREATENED WITH DIRECT AND SPECIAL INJURY THROUGH THE APPLICATION
OF A FEDERAL STATUTE OR THE ACT OF A FEDERAL OFFICER MAY MAINTAIN A
SUIT TO DETERMINE WHETHER THE STATUTE IS CONSTITUTIONAL OR THE ACT IS
AUTHORIZED.  FROTHINGHAM V. MELLON, 262 U.S. 447, 488; PHILADELPHIA CO.
V. STIMSON, 223 U.S. 605, 621-622; ALABAMA POWER CO. V. ICKES, 302 U.S.
464. 

THE LEGAL RIGHTS WHICH APPELLANTS SEEK TO PROTECT ARE:  (1) THE RIGHT
TO BE FREE FROM ILLEGAL COMPETITION AND (2) THE RIGHT TO ENGAGE IN AND
CARRY ON THE BUSINESS OF SUPPLYING ELECTRICITY TO THE PUBLIC WITHIN THE
STATES FREE FROM DISPLACEMENT BY THE FEDERAL GOVERNMENT AND FREE FROM
FEDERAL INTERFERENCE, REGULATION OR CONTROL.  THESE RIGHTS ARE ENTITLED
TO PROTECTION BOTH FROM INJURY PRODUCED BY THE OPERATION OF AN
UNCONSTITUTIONAL STATUTE AND FROM INJURY PRODUCED BY UNAUTHORIZED
ACTION OF FEDERAL OFFICIALS OR AGENCIES. 

A NON-EXCLUSIVE FRANCHISE IS PROPERTY.  IT IS EXCLUSIVE AS AGAINST
ALL PERSONS ATTEMPTING TO ENGAGE IN THE BUSINESS ILLEGALLY, WITHOUT A
FRANCHISE OR UNDER A VOID FRANCHISE.  IT FOLLOWS THAT, THERE BEING NO
ADEQUATE REMEDY AT LAW, THE HOLDER OF A NON-EXCLUSIVE FRANCHISE HAS A
STANDING IN EQUITY TO PROTECT HIS PROPERTY AGAINST SUCH AN INJURIOUS
INVASION.  FROST V. CORPORATION COMMISSION, 278 U.S. 515, 521;
CORPORATION COMMISSION V. LOWE, 281 U.S. 431, 435; ALABAMA POWER CO. V.
ICKES, 302 U.S. 464, 484-485; CITY OF CAMPBELL V. ARKANSAS-MISSOURI
POWER CO., 55 F.2D 560, 562; GALLARDO V. PORTO RICO RY. L. & P. CO., 18
F.2D 918, 922; ARKANSAS-MISSOURI POWER CO. V. CITY OF KENNETT, 78 F.2D
911; IOWA SOUTHERN UTILITIES CO. V. CASSILL, 69 F.2D 703; KANSAS GAS &
ELECTRIC CO. V. CITY OF INDEPENDENCE, 79 F.2D 32.  THIS MEANS THAT THE
HOLDER OF A NON-EXCLUSIVE FRANCHISE HAS A RIGHT TO INVOKE A JUDICIAL
DETERMINATION OF WHETHER ANY ACTUAL OR THREATENED COMPETITION WITH HIM
IS LEGAL AND, IF THAT INVOLVES THE CONSTITUTIONALITY OF A STATUTE OR
THE EXISTENCE OF OFFICIAL AUTHORITY, THEN A DETERMINATION OF THE
CONSTITUTIONAL QUESTION OR OF THE EXTENT OF THE OFFICIAL AUTHORITY. 
AND FOR THE PURPOSE OF DETERMINING THE RIGHTS OF APPELLANTS TO SUE, IT
MUST BE ASSUMED THAT THE APPELLEES ARE ATTEMPTING TO ENGAGE IN THE
BUSINESS ILLEGALLY, WITHOUT A FRANCHISE OR UNDER A VOID FRANCHISE. 

THE APPELLANTS HAVE A RIGHT TO ENGAGE IN AND CARRY ON THE BUSINESS OF
SUPPLYING ELECTRICITY TO THE PUBLIC WITHIN THE SEVERAL STATES SUBJECT
ONLY TO STATE REGULATION AND FREE FROM OUSTER, INTERFERENCE, REGULATION
OR CONTROL BY THE FEDERAL GOVERNMENT.  THEY HAVE A RIGHT TO BE FREE
FROM DISPLACEMENT OR SUPERSESSION, IN CARRYING ON THAT BUSINESS, BY THE
OPERATION OF FEDERAL STATUTES OR THE ACTION OF FEDERAL AGENCIES WHICH
RESULT IN TAKING OVER THE BUSINESS AS A FEDERAL ENTERPRISE. 

IT IS PLAIN THAT THE APPELLANTS ARE SEVERALLY THREATENED WITH THE
MOST SEVERE AND DESTRUCTIVE SORT OF COMPETITION.  THAT A THREAT OF
COMPETITION IS A THREAT OF IRREPARABLE DAMAGE IS ESTABLISHED BY THE
DECISIONS OF THIS COURT.  WALLA WALLA V. WALLA WALLA WATER CO., 172
U.S. 1, 12; FROST V. CORPORATION COMMISSION, 278 U.S. 515, 521; ALABAMA
POWER CO. V. ICKES, 302 U.S. 464. 

THE RIGHT TO BE FREE FROM ILLEGAL COMPETITION INCLUDES COMPETITION
FOR FUTURE OR UNATTACHED BUSINESS.  IT INCLUDES COMPETITION FOR
BUSINESS HANDLED BY THE AUTHORITY THROUGH MUNICIPAL AND COOPERATIVE
DISTRIBUTORS.  SEE CITIZENS ELECTRIC CO. V. LACKAWANNA & W.P. CO., 255
PA. 145; CHICAGO V. MUTUAL ELECTRIC LIGHT CO., 55 ILL. APP. 429. 

WHILE THE EXISTENCE OF SUCH A RELATIONSHIP IS NOT ESSENTIAL TO
APPELLANTS' RIGHT TO SUE, THE MUNICIPALITIES AND COOPERATIVES ARE IN
REALITY MERE AGENTS FOR THE DISTRIBUTION OF TENNESSEE VALLEY AUTHORITY
POWER; AND IN ANY EVENT, THE AUTHORITY SO FAR CONTROLS AND PARTICIPATES
IN THE SALES BY DISTRIBUTORS THAT THE VALIDITY OF ITS PARTICIPATION MAY
BE TESTED AT THE SUIT OF AN INJURED PARTY.  SEE UNITED STATES V.
GENERAL ELECTRIC CO., 272 U.S. 476; MITCHELL WAGON CO. V. POOLE, 235 F.
817; IN RE UNITED STATES ELECTRICAL SUPPLY CO., 2 F.2D 378; IN RE
WRIGHT-DANA HARDWARE CO., 211 F. 908; RUDIN V. KING-RICHARDSON CO., 37
F.2D 637; IN RE SMITH, 192 F. 574; IN RE THOMAS, 231 F. 513; IN RE
KRUSE, 234 F. 470; JOHN DEERE PLOW CO. V. MCDAVID, 137 F. 802; LUDVIGH
V. AMERICAN WOOLEN CO., 231 U.S. 522; MCCALLUM V. BRAY ROBINSON
CLOTHING CO., 24 F.2D 35; IN RE RENFRO-WADENSTEIN, 47 F.2D 238; BUTLER
BROS. SHOE CO. V. U.S. RUBBER CO., 156 F. 1.    APPELLANTS HAVE A CLEAR
RIGHT TO SUE.  SEE UNITED STATES V. BUTLER, 297 U.S. 1; CARTER V.
CARTER COAL CO., 298 U.S. 238; BAILEY V. DREXEL FURNITURE CO., 259 U.S.
20; HAMMER V. DAGENHART, 247 J.S. 251; HILL V. WALLACE, 259 U.S. 44;
ALABAMA POWER CO. V. ICKES, 302 U.S. 464. 

UNLESS APPELLANTS ARE ENTITLED ON THE RECORD AS MADE TO A REVERSAL OF
THE DECREE WITH DIRECTIONS TO ISSUE AN INJUNCTION, THEN THE DECREE OF
THE TRIAL COURT SHOULD BE REVERSED FOR SERIOUS ERRORS IN MATTERS OF
PROCEDURE AND IN RULINGS ON EVIDENCE. 

THE ACT SETS FORTH AS ITS BASIC PURPOSES THE IMPROVEMENT OF
NAVIGATION, THE CONTROL OF DESTRUCTIVE FLOODS IN THE TENNESSEE AND
MISSISSIPPI RIVER BASINS, AND THE PROMOTION OF NATIONAL DEFENSE.  THE
WHOLE RECORD CONFIRMS THE LEGISLATIVE JUDGMENT THAT THE PROJECTS ARE
APPROPRIATE MEANS FOR THE ACCOMPLISHMENT OF THE FUNCTIONS PRESCRIBED IN
THE STATUTE. 

THE POWER GENERATED IS LAWFULLY ACQUIRED, SINCE THESE ARE THE ONLY
PROJECTS CAPABLE OF PROVIDING FLOOD CONTROL ON THE TENNESSEE AND THE
MISSISSIPPI IN CONJUNCTION WITH A NINE-FOOT NAVIGATION CHANNEL ON THE
TENNESSEE.  THAT THE PROJECTS WILL CREATE AND MAINTAIN A CONTINUOUS
NINE-FOOT WATERWAY THROUGHOUT THE 650-MILE LENGTH OF THE TENNESSEE IS
UNDISPUTED.  NOT ONLY THE MAIN-STREAM DAMS, BUT THE TWO TRIBUTARY DAMS
AS WELL, WILL PROVIDE SUBSTANTIAL BENEFITS TO NAVIGATION BOTH ON THE
TENNESSEE AND THE MISSISSIPPI, BY VIRTUE OF RELEASES OF STORED WATER IN
LOW-WATER SEASON. 

WHILE THE RELATIVE ADVANTAGES AND DISADVANTAGES OF ALTERNATIVE
SYSTEMS ARE NOT LEGALLY MATERIAL, THE RECORD DEMONSTRATES AND THE TRIAL
COURT FOUND THAT THE PROJECTS OF THE AUTHORITY WILL PROVIDE A
NAVIGATION CHANNEL SUPERIOR TO THAT WHICH COULD BE PROVIDED BY ANY
ALTERNATIVE SYSTEM. 

EVEN IF THE POWER TO CONSTRUCT FLOOD-CONTROL WORKS MUST BE RESTED ON
THE POWER TO IMPROVE NAVIGATION, THE TEST IS MET BY THESE PROJECTS,
SINCE THEIR OPERATION FOR FLOOD-CONTROL PURPOSES RESULTS IN SUBSTANTIAL
BENEFITS TO NAVIGATION.  JACKSON V. UNITED STATES, 230 U.S. 1, 23;
CUBBINS V. MISSISSIPPI RIVER COMM'N, 241 U.S. 351, 368-369.  BUT
CONGRESS HAS POWER TO PROMOTE AND PROTECT INTERSTATE COMMERCE ON LAND
AS WELL AS ON WATER, AND ACCORDINGLY TO ENGAGE IN FLOOD-CONTROL
MEASURES, WHERE, AS ON THE TENNESSEE AND THE LOWER MISSISSIPPI, THERE
IS A SERIOUS FLOOD MENACE TO ALL FORMS OF INTERSTATE COMMERCE.  CF.
WILSON V. NEW, 243 U.S. 332; NATIONAL LABOR RELATIONS BOARD V. JONES &
LAUGHLIN STEEL CORP., 301 U.S. 1.  IN ADDITION, ITS POWER TO COPE WITH
THE RECURRING THREAT OF FLOODS CAN BE RESTED ON ITS POWER TO MAKE
EXPENDITURES FOR THE GENERAL WELFARE.  CF. STEWARD MACHINE CO. V.
DAVIS, 301 U.S. 548. 

THE INTEREST OF NATIONAL DEFENSE IS SUBSTANTIALLY SERVED BY THE
TRIBUTARY DAMS WHICH RELEASE WATER DURING THE LOW-WATER SEASON AND SO
ENHANCE THE VALUE AND USEFULNESS OF THE GOVERNMENT-OWNED PROPERTIES AT
MUSCLE SHOALS. 

IN PROVIDING WORKS WHICH APPROPRIATELY SERVE AS NAVIGATION AND FLOOD
CONTROL STRUCTURES, CONGRESS MAY DETERMINE THE SIZE OF THE PROJECTS AND
THE MODE AND MANNER OF THEIR USE, AND THE POWER WHICH IS THUS ACQUIRED
IS THE LAWFUL PROPERTY OF THE UNITED STATES.  ARIZONA V. CALIFORNIA,
283 U.S. 423, 456; GREEN BAY & M. CANAL CO. V. PATTEN PAPER CO., 172
U.S. 58, REHEARING DENIED, 173 U.S. 179; UNITED STATES V. CHANDLER
DUNBAR WATER POWER CO., 229 U.S. 53. 

THE WATER POWER CREATED BY THESE PROJECTS IS THE PROPERTY OF THE
UNITED STATES, MAY BE CONVERTED INTO ELECTRIC ENERGY, AND, UNDER THE
PROPERTY CLAUSE OF THE CONSTITUTION ALL OF THE ELECTRICITY SO ACQUIRED
MAY BE DISPOSED OF BY TRANSMISSION TO THE MARKET AND BY SALES TO
MUNICIPALITIES, RURAL COOPERATIVES, AND INDUSTRIAL CUSTOMERS. 
ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 340. 

THE AUTHORITY IS NOW SELLING POWER TO THE SAME CLASSES OF CUSTOMERS
AS THOSE SERVED BY THE LINES PURCHASED UNDER THE CONTRACT APPROVED IN
THE ASHWANDER CASE.  AND, AS FOUND BY THE TRIAL COURT, ALL OF THE
MARKETING FACILITIES CONSTRUCTED AND OPERATED BY THE AUTHORITY, NAMELY,
TRANSMISSION LINES, SUBSTATIONS, AND RURAL LINES, ARE SIMILAR IN
CHARACTER AND FUNCTION TO THE FACILITIES PURCHASED UNDER THAT
CONTRACT. 

IN THIS CASE, AS IN THAT, THE METHOD OF DISPOSITION IS NECESSARY TO
AVOID A PRIVATE MONOPOLY OF THE GOVERNMENT'S PROPERTY, TO PREVENT
WASTE, AND TO SECURE A WIDESPREAD DISTRIBUTION OF BENEFITS PURSUANT TO
THE STATUTE. 

AS AUTHORIZED BY THE ACT, THE AUTHORITY'S CONTRACTS WITH
MUNICIPALITIES AND COOPERATIVES ESTABLISH THE RESALE RATES TO BE
CHARGED BY THE DISTRIBUTORS (SEC. 10).  APPELLANTS HAVE NO STANDING TO
CHALLENGE THESE PROVISIONS, SINCE THEY WERE VOLUNTARILY ENTERED INTO BY
THE MUNICIPALITIES AND COOPERATIVES, WHICH ARE EMPOWERED TO DO SO BY
VALID STATE LAW.  ANY ADVANTAGE OR DISADVANTAGE TO APPELLANTS RESULTING
FROM THE RATES ADOPTED BY THE MUNICIPALITIES AND COOPERATIVES IS MERELY
THE INCIDENTAL RESULT OF THE EXERCISE OF THE RIGHTS VESTED IN THEM BY
THE LAWS OF THE STATES OF THEIR CREATION TO SET THEIR OWN RATES AND TO
CONTRACT WITH RESPECT TO THEM.  EDWARD HINES TRUSTEES V. UNITED STATES,
263 U.S. 143, 148; SPRUNT & SON V. UNITED STATES, 281 U.S. 249, 254
256; WILBUR V. TEXAS CO., 40 F.2D 787(APP.  D.C., 1930), CERT. DENIED,
282 U.S. 843; GEORGIA POWER CO. V. TENNESSEE VALLEY AUTHORITY, 14
F.SUPP.  673(N.D. GA., 1936). 

IN ANY EVENT, THESE PROVISIONS OF THE CONTRACTS ARE VALID.  THE
GOVERNMENT IS SELLING AT WHOLESALE.  THE DEMAND FOR THE GOVERNMENT
PROPERTY WILL BE INFLUENCED BY THE RATES CHARGED TO THE ULTIMATE
CONSUMER.  THE CONGRESS, IN THE POSITION OF A TRUSTEE OF GOVERNMENT
PROPERTY, MAY THEREFORE AUTHORIZE THIS MEANS TO ASSURE A WIDESPREAD
DIFFUSION OF THE BENEFITS TO THE PEOPLE.  CF. OREGON & CALIFORNIA R.
CO. V. UNITED STATES, 238 U.S. 393; UNITED STATES V. GRATIOT, 26 FED.
CAS. 12(C.C.D. ILL., 1839), AFF'D, 14 PET. 526. 

THERE IS NO INVASION OF THE RIGHTS RESERVED TO THE STATES UNDER THE
TENTH AMENDMENT, EVEN IF IT BE ASSUMED THAT THE AMENDMENT CONSTITUTES
AN INDEPENDENT LIMITATION ON THE EXERCISE OF GRANTED POWERS.  THE
DENIAL OF THE POWER OF THE CONGRESS TO CONSTRUCT THE NECESSARY
TRANSMISSION FACILITIES AND TO ENTER INTO THE NECESSARY CONTRACTS FOR
THE SALE OF THE POWER WOULD LIMIT THE AUTHORITY'S MARKET TO SALES AT
THE DAM SITES WHERE THE COMMONWEALTH AND SOUTHERN COMPANIES ARE,
PRACTICALLY, THE ONLY AVAILABLE PURCHASERS. 

THE CONCLUSIVE ANSWER TO THE INVOCATION OF THE TENTH AMENDMENT IS
THAT THE MEANS OF DISPOSITION DO NOT IMPAIR THE EXERCISE OF THE STATES'
POLICE POWER.  THE AUTHORITY IS DEALING WITH MUNICIPALITIES AND
COOPERATIVES WHO ARE SUBJECT AT ALL TIMES TO THE COMPLETE CONTROL OF
THE STATES, AND THE STATE COURTS HAVE DETERMINED THAT THERE IS NO
ABDICATION OF STATE POWERS.  MEMPHIS POWER & LIGHT CO. V. MEMPHIS, 172
TENN. 346(1937); OPPENHEIM V. FLORENCE, 229 ALA. 50(1934).  AN
ARRANGEMENT BY WHICH THE STATE AUTHORIZES ITS AGENCIES, AT THEIR
ELECTION, TO PURCHASE PROPERTY FROM THE GOVERNMENT, STILL RETAINING IN
THE STATE THE RIGHT OF REGULATION AND CONTROL, CAN GIVE RISE TO NO
QUESTIONS UNDER THE TENTH AMENDMENT.  CF. STEWARD MACHINE CO. V. DAVIS,
SUPRA; UNITED STATES V. BEKINS, 304 U.S. 27.  THE STATES MAY AUTHORIZE
MUNICIPALITIES TO CONSTRUCT AND OPERATE ELECTRIC PLANTS IN COMPETITION
WITH THE APPELLANT COMPANIES EVEN THOUGH THE RESULT IS HARMFUL TO THE
BUSINESS OF THE COMPANIES.  ALABAMA POWER CO. V. ICKES, 302 U.S. 464. 
TO THE EXTENT THAT THIS COMPETITION IS RELATED TO THE WHOLESALE SERVICE
OF THE AUTHORITY, THE CASE IS ONE OF THE FEDERAL EXERCISE OF THE
GRANTED POWER TO DISPOSE OF PUBLIC PROPERTY BY SALES TO LOCAL PUBLIC
AGENCIES WHO THEMSELVES ENGAGE IN AN ENTERPRISE AUTHORIZED BY THE
STATES.  SUCH COOPERATION IS PERMITTED BY THE CONSTITUTION AND NOT
FORBIDDEN BY THE TENTH AMENDMENT.  DUKE POWER CO. V. GREENWOOD COUNTY,
91 F.2D 665, 673(C.C.A.4TH, 1937); CF. STEWARD MACHINE CO. V. DAVIS,
SUPRA; UNITED STATES V. BEKINS, SUPRA. 

MOREOVER, ANY EFFECT OF COMPETITION UPON APPELLANTS' RATES DOES NOT
CONSTITUTE REGULATION AND IS ONLY THE COLLATERAL EFFECT OF THE EXERCISE
OF A GRANTED POWER.  DUKE POWER CO. V. GREENWOOD COUNTY, SUPRA; CF.
SONZINSKY V. UNITED STATES, 300 U.S. 506, 513-514; UNITED STATES V.
CAROLENE PRODUCTS CO., 304 U.S. 144. 

THE SCOPE OF THE PROJECTS NECESSARY FOR THE DISPOSITION OF PUBLIC
PROPERTY IS A QUESTION FOR CONGRESS TO DETERMINE.  CF. ARIZONA V.
CALIFORNIA, SUPRA; UNITED STATES V. HANSON, 167 F. 881(C.C.A.9TH,
1909). 

THE RESALE-RATE PROVISIONS OF THE CONTRACTS DO NOT DEPRIVE THE STATES
OF THEIR POWER TO REGULATE INTRASTATE RATES AND ARE NOT IN VIOLATION OF
THE TENTH AMENDMENT.  THERE CANNOT BE ANY IMPAIRMENT OF STATE
SOVEREIGNTY WHERE, AS HERE, THE STATES HAVE AUTHORIZED THE CONTRACTS
AND HAVE RESERVED A CONTINUING POWER TO REVOKE THE AUTHORIZATION.  CF.
STEWARD MACHINE CO. V. DAVIS, SUPRA; UNITED STATES V. BEKINS, SUPRA. 

THE SALE OF POWER BY THE AUTHORITY AND ITS WHOLESALE CUSTOMERS DOES
NOT CONSTITUTE REGULATION, AND THE LOSS OF APPELLANTS' BUSINESS, IF
ANY, IS NOT A "TAKING" OF THEIR PROPERTY UNDER THE FIFTH AMENDMENT. 
SONZINSKY V. UNITED STATES, SUPRA; STANDARD SCALE CO. V. FARRELL, 249
U.S. 571; PENNSYLVANIA R. CO. V. UNITED STATES R. LABOR BOARD, 261 U.S.
72; UNITED STATES V. LOS ANGELES R. CO., 273 U.S. 299.  CF. WALLA WALLA
V. WALLA WALLA WATER CO., 172 U.S. 1; JOPLIN V. SOUTHWEST M. LIGHT CO.,
191 U.S. 150; HELENA WATER WORKS CO. V. HELENA, 195 U.S. 383; PUGET
SOUND CO. V. SEATTLE, 291 U.S. 619. 

APPELLANTS HAVE NO STANDING TO MAINTAIN THIS SUIT.  THEIR MUNICIPAL
AND COUNTY STREET FRANCHISES, LICENSES, OR EASEMENTS, AT THE MOST,
CONFER ONLY THE RIGHT TO ENJOIN THE USE OF THE STREETS AND HIGHWAYS BY
ONE COMPETING WITH APPELLANTS WITHOUT A LIKE FRANCHISE, LICENSE, OR
EASEMENT.  NO SHOWING HAS BEEN MADE THAT THE AUTHORITY'S FACILITIES
OCCUPY THE PUBLIC STREETS AND HIGHWAYS.  MOREOVER, WHATEVER THE NATURE
OF THE RIGHTS CONFERRED BY LOCAL STREET FRANCHISES, LICENSES, OR
EASEMENTS, IT IS CONCEDED THAT THE AUTHORITY HAS BEEN GRANTED SUCH
RIGHTS BY THE LOCAL AUTHORITIES IN THE AREAS IN WHICH IT OPERATES. 

THE ONLY SO-CALLED "STATE FRANCHISES" WHICH APPELLANTS, AS A CLASS,
POSSESS ARE CORPORATE PRIVILEGES DERIVED UNDER THE GENERAL STATE LAWS
GOVERNING INCORPORATION AND THE QUALIFICATION OF FOREIGN CORPORATIONS. 
SUCH CORPORATE "FRANCHISES" OBVIOUSLY CONFER NO IMMUNITY FROM
COMPETITION.  CF. RAILROAD CO. V. ELLERMAN, 105 U.S. 166.  APPELLANTS
HAVE NOT BEEN REQUIRED TO OBTAIN CERTIFICATES OF CONVENIENCE AND
NECESSITY TO SERVE IN THE AREA IN WHICH THE AUTHORITY IS OPERATING. 
CONSEQUENTLY, APPELLANTS ARE NOT WITHIN THE PROTECTION OF FROST V.
CORPORATION COMM'N, 278 U.S. 515. 

IN ANY EVENT, THE STATUTES IN ALL THE STATES IN WHICH THE AUTHORITY
IS UNDER CONTRACT TO SELL ELECTRICITY WITHIN THE CLAIMED TERRITORY OF
APPELLANTS HAVE EXEMPTED THE AUTHORITY FROM THE JURISDICTION OF THE
REGULATORY COMMISSIONS AND FROM THE REQUIREMENT OF CERTIFICATES OF
CONVENIENCE AND NECESSITY.  THE VALIDITY OF THESE EXEMPTIONS IS NOT
CHALLENGED AS UNLAWFULLY DISCRIMINATORY.  THE DECISION OF THIS COURT IN
THE FROST CASE (278 U.S. 515) MERELY HOLDS THAT ONE WHO IS REQUIRED TO
OBTAIN A CERTIFICATE OF CONVENIENCE AND NECESSITY MAY ENJOIN
COMPETITION BY ONE WHO IS SUBJECT TO THE SAME STATUTORY PROVISIONS AND
HAS FAILED TO COMPLY WITH THEIR TERMS.  CAROLINA POWER & LIGHT CO. V.
SOUTH CAROLINA PUBLIC SERVICE AUTHORITY, 94 F.2D 520(C.C.A.4TH, 1938),
CERT. DENIED, 304 U.S. 578.  IT IS INSUFFICIENT ANSWER THAT THE POWERS
OF THE FEDERAL GOVERNMENT MAY NOT BE ENLARGED BY STATE ENACTMENTS.  THE
VALIDITY OF THESE STATE STATUTORY EXEMPTIONS (WHICH IS NOT CHALLENGED
BY APPELLANTS) MAY BE SUPPORTED WITHOUT REGARD TO THE CONSTITUTIONAL
VALIDITY OF THE TENNESSEE VALLEY AUTHORITY ACT. 

IN ADDITION TO THEIR LACK OF THE NECESSARY FRANCHISES, NINE OF THE
APPELLANT COMPANIES ARE NOT SHOWN TO BE THREATENED WITH DAMAGE BY ANY
CONCRETE ACT OF THE APPELLEES.  IN THE CLAIMED TERRITORY OF THESE
APPELLANTS THE AUTHORITY NEITHER OWNS ELECTRIC FACILITIES NOR HAS IT
NEGOTIATED ANY CONTRACTS FOR THE SALE OF POWER.  AS TO THESE
APPELLANTS, OBVIOUSLY NO JUSTICIABLE CONTROVERSY IS PRESENTED. 
ASHWANDER V. TENNESSEE VALLEY AUTHORITY, SUPRA.  FOUR OTHER APPELLANTS,
ALL MEMBERS OF THE COMMONWEALTH AND SOUTHERN SYSTEM, HAVE PURCHASED A
LARGE PROPORTION OF THE TOTAL AMOUNT OF THE POWER DEVELOPED AND
GENERATED AT THE PROJECTS OF THE AUTHORITY, BOTH AT THE SWITCHBOARD
AND, IN THE CASE OF THE ALABAMA POWER COMPANY, AT THE END OF THE
AUTHORITY'S TRANSMISSION LINE; AND ALL OF THEM HAVE RECEIVED MANY OTHER
BENEFITS UNDER THE PROVISIONS OF THE ACT NOW CHALLENGED.  ACCEPTANCE OF
THESE BENEFITS ESTOPS THESE APPELLANTS FROM QUESTIONING THE VALIDITY OF
THE PROVISIONS OF THE ACT UNDER WHICH THE BENEFITS WERE RECEIVED. 
GREAT FALLS MFG. CO. V. ATTORNEY GENERAL, 124 U.S. 581; WALL V. PARROT
SILVER & COPPER CO., 244 U.S. 407; ST. LOUIS CO. V. PRENDERGAST CO.,
260 U.S. 469.  THE DECISION IN THE ASHWANDER CASE HELD MERELY THAT THE
PURCHASE OF POWER AT THE DAM SITE UNDER THE CIRCUMSTANCES OF THAT CASE
DID NOT PRECLUDE AN ATTACK ON SEPARABLE PROVISIONS OF THE STATUTE
AUTHORIZING THE ACQUISITION OF TRANSMISSION FACILITIES AND IS CLEARLY
DISTINGUISHABLE FROM THE CASE AT BAR. 

FINALLY, THE COMPETITION OF WHICH THE APPELLANTS COMPLAIN IS THE
COMPETITION OF THE MUNICIPALITIES AND COOPERATIVES AND NOT OF THE
AUTHORITY, AND UNDER THE DECISION IN ALABAMA POWER CO. V. ICKES, SUPRA,
THE APPELLANTS CANNOT CHALLENGE THE VALIDITY OF THE CONTRACTS BETWEEN
THE AUTHORITY AND THESE MUNICIPALITIES AND COOPERATIVES.  APPELLANTS'
LEGAL INTEREST IS THE SAME WHETHER THE PERMANENT ELECTRIC SUPPLY OF THE
MUNICIPAL AND COOPERATIVE DISTRIBUTION SYSTEM IS GENERATED BY
FACILITIES OWNED BY THE UNITED STATES OR BY FACILITIES OWNED BY THE
DISTRIBUTOR BUT CONSTRUCTED BY MEANS OF FEDERAL LOANS AND GRANTS. 
THE POTENTIAL DAMAGE ALLEGED TO RESULT FROM THE LOSS OF THE WHOLESALE
MUNICIPAL AND COOPERATIVE MARKETS SERVED BY THE AUTHORITY IS WHOLLY
SPECULATIVE AND UNREAL.  NEITHER THE MUNICIPALITIES NOR THE
COOPERATIVES WERE POTENTIAL CUSTOMERS OF THE APPELLANTS.  THE SAME IS
TRUE OF THE LARGE ELECTROCHEMICAL AND ELECTROMETALLURGICAL INDUSTRIES
UNDER CONTRACT WITH THE AUTHORITY WHICH HAVE LOCATED IN THE CLAIMED
TERRITORY OF THE COMMONWEALTH AND SOUTHERN COMPANIES. 

ON THE WHOLE RECORD, APPELLANTS HAVE FAILED TO SHOW A SUFFICIENT
LEGAL INTEREST TO MAINTAIN THIS SUIT, AND THE CASE PRESENTED DOES NOT
ADMIT OF JUDICIAL DETERMINATION.    THE TRIAL WAS FAIR AND EXHAUSTIVE. 
ON THE WHOLE RECORD, IT IS CLEAR THAT THE RULINGS OF THE TRIAL COURT ON
EVIDENCE AND PROCEDURE WERE WELL WITHIN ITS DISCRETION, AND, IN ANY
EVENT, APPELLANTS HAVE FAILED TO SHOW ANY PREJUDICIAL ERROR SUFFICIENT
TO JUSTIFY OR EVEN TO PERMIT THE REMAND OF A CASE OF THIS CHARACTER. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE TENNESSEE VALLEY AUTHORITY ACT  FN1  ERECTS A CORPORATION, AN
INSTRUMENTALITY OF THE UNITED STATES, TO DEVELOP BY A SERIES OF DAMS ON
THE TENNESSEE RIVER AND ITS TRIBUTARIES A SYSTEM OF NAVIGATION AND
FLOOD CONTROL AND TO SELL THE POWER CREATED BY THE DAMS.  EIGHTEEN
CORPORATIONS WHICH GENERATE AND DISTRIBUTE ELECTRICITY IN TENNESSEE,
KENTUCKY, MISSISSIPPI, ALABAMA, GEORGIA, WEST VIRGINIA, VIRGINIA, NORTH
CAROLINA, AND SOUTH CAROLINA, AND ONE WHICH TRANSMITS ELECTRICITY IN
TENNESSEE AND ALABAMA, FILED A BILL IN EQUITY, IN THE CHANCERY COURT OF
KNOX COUNTY, TENNESSEE, AGAINST THE AUTHORITY AND ITS THREE EXECUTIVE
OFFICERS AND DIRECTORS.  THE PRAYERS WERE THAT THE DEFENDANTS BE
RESTRAINED FROM GENERATING ELECTRICITY OUT OF WATER POWER CREATED, OR
TO BE CREATED, PURSUANT TO THE ACT AND THE AUTHORITY'S PLAN OF
CONSTRUCTION AND OPERATION; FROM TRANSMITTING, DISTRIBUTING, SUPPLYING
OR SELLING ELECTRICITY SO GENERATED, OR TO BE GENERATED, IN COMPETITION
WITH ANY OF THE COMPLAINANTS; FROM CONSTRUCTING, OR FINANCING THE
CONSTRUCTION OF, STEAM OR HYDROELECTRIC GENERATING STATIONS,
TRANSMISSION LINES OR MEANS OF DISTRIBUTION, WHICH WILL DUPLICATE OR
COMPETE WITH ANY OF THEIR SERVICES; FROM REGULATING THEIR RETAIL RATES
THROUGH ANY CONTRACT, SCHEME OR DEVICE; AND FROM SUBSTITUTING FEDERAL
REGULATION FOR STATE REGULATION OF LOCAL RATES FOR ELECTRIC SERVICE,
MORE ESPECIALLY BY INCORPORATING IN CONTRACTS FOR THE SALE OF
ELECTRICITY TERMS FIXING RETAIL RATES.  THE DEFENDANTS REMOVED THE
CAUSE TO THE UNITED STATES DISTRICT COURT FOR EASTERN TENNESSEE AND
THERE ANSWERED THE BILL.  AS REQUIRED BY THE ACT OF AUGUST 24, 1937,
FN2  A COURT OF THREE JUDGES WAS CONVENED WHICH, AFTER A TRIAL,
DISMISSED THE BILL.  FN3 

FOURTEEN OF THE COMPLAINANTS ARE HERE AS APPELLANTS.  FN4  THEY
CONTEND THAT WATER POWER CANNOT CONSTITUTIONALLY BE CREATED IN
CONFORMITY TO THE TERMS OF THE TENNESSEE VALLEY AUTHORITY ACT, AND THE
UNITED STATES WILL, THEREFORE, ACQUIRE NO TITLE TO IT, BECAUSE IT WILL
NOT BE PRODUCED AS AN INCIDENT OF THE EXERCISE OF THE FEDERAL POWER TO
IMPROVE NAVIGATION AND CONTROL FLOODS IN THE NAVIGABLE WATERS OF THE
NATION.  THEY AFFIRM THAT THE STATUTORY PLAN IS A PLAIN ATTEMPT, IN THE
GUISE OF EXERTING GRANTED POWERS, TO EXERCISE A POWER NOT GRANTED TO
THE UNITED STATES, NAMELY, THE GENERATION AND SALE OF ELECTRIC ENERGY;
THAT THE EXECUTION OF THE PLAN CONTRAVENES THE FIFTH, NINTH, AND TENTH
AMENDMENTS OF THE CONSTITUTION, SINCE THE SALE OF ELECTRICITY ON THE
SCALE PROPOSED WILL DEPRIVE THE APPELLANTS OF THEIR PROPERTY WITHOUT
DUE PROCESS OF LAW, WILL RESULT IN FEDERAL REGULATION OF THE INTERNAL
AFFAIRS OF THE STATES, AND WILL DEPRIVE THE PEOPLE OF THE STATES OF
THEIR GUARANTEED LIBERTY TO EARN A LIVELIHOOD AND TO ACQUIRE AND USE
PROPERTY SUBJECT ONLY TO STATE REGULATION.  THE APPELLEES CONTEST THESE
CONTENTIONS.  FOR REASONS ABOUT TO BE STATED WE DO NOT CONSIDER OR
DECIDE THE ISSUES THUS MOOTED. 

THE AUTHORITY'S ACTS, WHICH THE APPELLANTS CLAIM GIVE RISE TO A CAUSE
OF ACTION, COMPRISE (1) THE SALE OF ELECTRIC ENERGY AT WHOLESALE TO
MUNICIPALITIES EMPOWERED BY STATE LAW TO MAINTAIN AND OPERATE THEIR OWN
DISTRIBUTION SYSTEMS; (2) THE SALE OF SUCH ENERGY AT WHOLESALE TO
MEMBERSHIP CORPORATIONS ORGANIZED UNDER STATE LAW TO PURCHASE AND
DISTRIBUTE ELECTRICITY TO THEIR MEMBERS WITHOUT PROFIT; (3) THE SALE OF
FIRM AND SECONDARY POWER AT WHOLESALE TO INDUSTRIAL PLANTS. 

THE APPELLANTS ARE INCORPORATED FOR THE PURPOSE AND WITH THE
AUTHORITY TO CONDUCT BUSINESS AS PUBLIC UTILITIES.  SEVERAL DO SO ONLY
WITHIN THE STATES OF THEIR INCORPORATION; THOSE CHARTERED ELSEWHERE
HAVE QUALIFIED AS FOREIGN CORPORATIONS UNDER THE LAWS OF THE STATES IN
WHICH THEY MANUFACTURE, TRANSMIT, OR DISTRIBUTE ELECTRICITY.  MOST OF
THEM HAVE LOCAL FRANCHISES, LICENSES, OR EASEMENTS GRANTED BY
MUNICIPALITIES OR GOVERNMENTAL SUBDIVISIONS BUT IT IS ADMITTED THAT
NONE OF THESE FRANCHISES CONFERS AN EXCLUSIVE PRIVILEGE. 

WHILE THE AUTHORITY HAS NOT BUILT OR AUTHORIZED ANY TRANSMISSION
LINE, HAS NOT SOLD OR AUTHORIZED THE SALE OF ELECTRICITY, OR CONTRACTED
FOR, OR AUTHORIZED ANY CONTRACT FOR, THE SALE OF ELECTRICITY BY OTHERS,
IN TERRITORY SERVED BY NINE OF THE APPELLANTS, IT HAS DONE SOME OR ALL
OF THESE THINGS IN AREAS SERVED OR SUSCEPTIBLE OF SERVICE BY FIVE OF
THE COMPANIES; AND IT PLANS TO ENTER IN THE SAME WAY THE TERRITORY OF
OTHER APPELLANTS.  IT IS CLEAR, THEREFORE, THAT ITS ACTS HAVE RESULTED
AND WILL RESULT IN THE ESTABLISHMENT OF MUNICIPAL AND COOPERATIVE
DISTRIBUTION SYSTEMS COMPETING WITH THOSE OF SOME OR ALL OF THE
APPELLANTS IN TERRITORY WHICH THEY NOW SERVE, OR REASONABLY EXPECT TO
SERVE BY EXTENSION OF THEIR EXISTING SYSTEMS, AND IN DIRECT COMPETITION
WITH THE APPELLANTS' ENTERPRISES THROUGH THE SALE OF POWER TO
INDUSTRIES IN AREAS NOW SERVED BY THEM OR WHICH THEY CAN SERVE BY
EXPANSION OF THEIR FACILITIES.  THE APPELLANTS ASSERT THAT THIS
COMPETITION WILL INFLICT SUBSTANTIAL DAMAGE UPON THEM.  THE APPELLEES
ADMIT THAT SUCH DAMAGE WILL RESULT, BUT CONTEND THAT IT IS NOT THE
BASIS OF A CAUSE OF ACTION SINCE IT IS DAMNUM ABSQUE INJURIA,  - A
DAMAGE NOT CONSEQUENT UPON THE VIOLATION OF ANY RIGHT RECOGNIZED BY
LAW. 

THE APPELLANTS INVOKE THE DOCTRINE THAT ONE THREATENED WITH DIRECT
AND SPECIAL INJURY BY THE ACT OF AN AGENT OF THE GOVERNMENT WHICH, BUT
FOR STATUTORY AUTHORITY FOR ITS PERFORMANCE, WOULD BE A VIOLATION OF
HIS LEGAL RIGHTS, MAY CHALLENGE THE VALIDITY OF THE STATUTE IN A SUIT
AGAINST THE AGENT.  FN5  THE PRINCIPLE IS WITHOUT APPLICATION UNLESS
THE RIGHT INVADED IS A LEGAL RIGHT,  - ONE OF PROPERTY, ONE ARISING OUT
OF CONTRACT, ONE PROTECTED AGAINST TORTIOUS INVASION, OR ONE FOUNDED ON
A STATUTE WHICH CONFERS A PRIVILEGE.  FN6  THE APPELLANTS URGE THAT THE
TENNESSEE VALLEY AUTHORITY, BY COMPETING WITH THEM IN THE SALE OF
ELECTRIC ENERGY, IS DESTROYING THEIR PROPERTY AND RIGHTS WITHOUT
WARRANT, SINCE THE CLAIMED AUTHORIZATION OF ITS TRANSACTIONS IS AN
UNCONSTITUTIONAL STATUTE.  THE PITH OF THE COMPLAINT IS THE AUTHORITY'S
COMPETITION.  BUT THE APPELLANTS REALIZE THAT COMPETITION BETWEEN
NATURAL PERSONS IS LAWFUL.  THEY SEEK TO STIGMATIZE THE AUTHORITY'S
PRESENT AND PROPOSED COMPETITION AS "ILLEGAL" BY RELIANCE ON THEIR
FRANCHISES WHICH THEY SAY ARE PROPERTY PROTECTED FROM INJURY OR
DESTRUCTION BY COMPETITION.  THEY CLASSIFY THE FRANCHISES IN QUESTION
AS OF TWO SORTS,  - THOSE INVOLVED IN THE STATE'S GRANT OF
INCORPORATION OR OF DOMESTICATION AND THOSE ARISING FROM THE GRANT BY
THE STATE OR ITS SUBDIVISIONS OF THE PRIVILEGE TO USE AND OCCUPY PUBLIC
PROPERTY AND PUBLIC PLACES FOR THE SERVICE OF THE PUBLIC. 

THE CHARTERS OF THE COMPANIES WHICH OPERATE IN THE STATES OF THEIR
INCORPORATION GIVE THEM LEGAL EXISTENCE AND POWER TO FUNCTION AS PUBLIC
UTILITIES.  THE LIKE EXISTENCE AND POWERS OF THOSE CHARTERED IN OTHER
STATES HAVE BEEN RECOGNIZED BY THE LAWS OF THE STATES IN WHICH THEY DO
BUSINESS PERMITTING THE DOMESTICATION OF FOREIGN CORPORATIONS.  THE
APPELLANTS SAY THAT THE FRANCHISE TO BE A PUBLIC UTILITY CORPORATION
AND TO FUNCTION AS SUCH, WITH INCIDENTAL POWERS, IS A SPECIES OF
PROPERTY WHICH IS DIRECTLY TAKEN OR INJURED BY THE AUTHORITY'S
COMPETITION.  THEY FURTHER URGE THAT, THOUGH NON-EXCLUSIVE, THE LOCAL
FRANCHISES OR EASEMENTS, WHICH GRANT THEM THE PRIVILEGE TO SERVE WITHIN
GIVEN MUNICIPAL SUBDIVISIONS, AND TO OCCUPY STREETS AND PUBLIC PLACES,
ARE ALSO PROPERTY WHICH THE AUTHORITY IS DESTROYING BY ITS
COMPETITION.  SINCE WHAT IS BEING DONE IS JUSTIFIED BY REFERENCE TO THE
TENNESSEE VALLEY AUTHORITY ACT, THEY SAY THEY HAVE STANDING TO
CHALLENGE ITS CONSTITUTIONALITY. 

THE VICE OF THE POSITION IS THAT NEITHER THEIR CHARTERS NOR THEIR
LOCAL FRANCHISES INVOLVE THE GRANT OF A MONOPOLY OR RENDER COMPETITION
ILLEGAL.  THE FRANCHISE TO EXIST AS A CORPORATION, AND TO FUNCTION AS A
PUBLIC UTILITY, IN THE ABSENCE OF A SPECIFIC CHARTER CONTRACT ON THE
SUBJECT, CREATES NO RIGHT TO BE FREE OF COMPETITION,  FN7  AND AFFORDS
THE CORPORATION NO LEGAL CAUSE OF COMPLAINT BY REASON OF THE STATE'S
SUBSEQUENTLY AUTHORIZING ANOTHER TO ENTER AND OPERATE IN THE SAME
FIELD.  FN8  THE LOCAL FRANCHISES, WHILE HAVING ELEMENTS OF PROPERTY,
CONFER NO CONTRACTUAL OR PROPERTY RIGHT TO BE FREE OF COMPETITION
EITHER FROM INDIVIDUALS, OTHER PUBLIC UTILITY CORPORATIONS, OR THE
STATE OR MUNICIPALITY GRANTING THE FRANCHISE.  FN9  THE GRANTOR MAY
PRECLUDE ITSELF BY CONTRACT FROM INITIATING OR PERMITTING SUCH
COMPETITION,  FN10  BUT NO SUCH CONTRACTUAL OBLIGATION IS HERE
ASSERTED. 

THE APPELLANTS FURTHER ARGUE THAT EVEN IF INVASION OF THEIR FRANCHISE
RIGHTS DOES NOT GIVE THEM STANDING, THEY MAY, BY SUIT, CHALLENGE THE
CONSTITUTIONALITY OF THE STATUTORY GRANT OF POWER THE EXERCISE OF WHICH
RESULTS IN COMPETITION.  THIS IS BUT TO SAY THAT IF THE COMMODITY USED
BY A COMPETITOR WAS NOT LAWFULLY OBTAINED BY IT THE CORPORATION WITH
WHICH IT COMPETES MAY RENDER IT LIABLE IN DAMAGES OR ENJOIN IT FROM
FURTHER COMPETITION BECAUSE OF THE ILLEGAL DERIVATION OF THAT WHICH IT
SELLS.  IF THE THESIS WERE SOUND, APPELLANTS COULD ENJOIN A COMPETING
CORPORATION OR AGENCY ON THE GROUND THAT ITS INJURIOUS COMPETITION IS
ULTRA VIRES, THAT THERE IS A DEFECT IN THE GRANT OF POWERS TO IT, OR
THAT THE MEANS OF COMPETITION WERE ACQUIRED BY SOME VIOLATION OF THE
CONSTITUTION.  THE CONTENTION IS FORECLOSED BY PRIOR DECISIONS THAT THE
DAMAGE CONSEQUENT ON COMPETITION, OTHERWISE LAWFUL, IS IN SUCH
CIRCUMSTANCES DAMNUM ABSQUE INJURIA, AND WILL NOT SUPPORT A CAUSE OF
ACTION OR A RIGHT TO SUE.  FN11 

CERTAIN PROVISIONS OF STATE STATUTES REGULATING PUBLIC UTILITIES ARE
CLAIMED TO CONFER ON THE APPELLANTS THE RIGHT TO BE FREE OF
COMPETITION.  EACH OF THE STATES IN WHICH ANY OF THEM OPERATES, SAVE
MISSISSIPPI,  FN12  HAS ESTABLISHED A COMMISSION TO SUPERVISE AND
REGULATE PUBLIC UTILITIES.  WHILE THE STATUTES  FN13  DIFFER IN THEIR
PROVISIONS, ALL BUT THAT OF VIRGINIA REQUIRE A PUBLIC UTILITY TO OBTAIN
A CERTIFICATE OF CONVENIENCE AND NECESSITY AS A CONDITION OF DOING
BUSINESS.  THE APPELLANTS COMMENCED BUSINESS IN THE VARIOUS STATES
PRIOR TO THE ADOPTION OF THE REQUIREMENT OF SUCH CERTIFICATES AND, SO
FAR AS APPEARS, THEY HAVE NONE COVERING THEIR ENTIRE OPERATIONS.  THEY
HAVE, HOWEVER, OBTAINED CERTIFICATES FOR EXTENSIONS MADE SINCE THE
PASSAGE OF THE STATUTES; AND THEY CLAIM THAT, IN ANY EVENT, THESE LAWS
AFFORD THEM PROTECTION FROM THE AUTHORITY'S COMPETITION SINCE ANY
UTILITY NOW SEEKING TO SERVE IN THEIR TERRITORY MUST OBTAIN A
CERTIFICATE, AND HENCE THEY HAVE STANDING TO MAINTAIN THIS SUIT AGAINST
THE AUTHORITY WHICH HAS NONE.  THE POSITION CANNOT BE MAINTAINED. 
WHETHER COMPETITION BETWEEN UTILITIES SHALL BE PROHIBITED, REGULATED OR
FORBIDDEN IS A MATTER OF STATE POLICY.  THAT POLICY IS SUBJECT TO
ALTERATION AT THE WILL OF THE LEGISLATURE.  FN14  THE DECLARATION OF A
SPECIFIC POLICY CREATES NO VESTED RIGHT TO ITS MAINTENANCE IN UTILITIES
THEN ENGAGED IN THE BUSINESS OR THEREAFTER EMBARKING IN IT. 

MOREOVER, THE STATES IN WHICH THE AUTHORITY IS NOW FUNCTIONING HAVE
DECLARED THEIR POLICY IN RESPECT OF ITS ACTIVITIES.  ALABAMA HAS
ENACTED THAT FEDERAL AGENCIES, INSTRUMENTALITIES, OR CORPORATIONS SHALL
NOT BE UNDER THE JURISDICTION OF ITS PUBLIC SERVICE COMMISSION; FN15
THAT MUNICIPALITIES AND IMPROVEMENT AUTHORITIES MAY OWN AND OPERATE
ELECTRIC GENERATING AND DISTRIBUTING SYSTEMS AND MAY CONTRACT WITH A
FEDERAL AGENCY SUCH AS THE AUTHORITY FOR THE PURCHASE OF ENERGY, AND
STIPULATE AS TO THE USE OF THE ENERGY, INCLUDING RATES OF RESALE; FN16
THAT NONPROFIT MEMBERSHIP CORPORATIONS MAY BE FORMED FOR THE
DISTRIBUTION AMONG THEIR MEMBERS OF ELECTRICITY WITH LIKE POWER TO
CONTRACT WITH THE AUTHORITY FOR THE REQUIRED ENERGY.  FN17 TENNESSEE
HAS AMENDED SEC. 5448 OF ITS CODE, WHICH DEFINES PUBLIC UTILITIES, SO
AS TO EXCLUDE FEDERAL CORPORATIONS SUCH AS THE AUTHORITY FROM THE
JURISDICTION OF THE STATE UTILITIES COMMISSION; FN18  HAS AUTHORIZED
MUNICIPALITIES TO OWN AND OPERATE ELECTRIC GENERATING TRANSMISSION AND
DISTRIBUTION SYSTEMS AND TO CONTRACT FOR POWER WITH THE AUTHORITY ON
TERMS DEEMED APPROPRIATE, INCLUDING THE FIXING OF RESALE PRICES; FN19
HAS AUTHORIZED THE FORMATION OF NONPROFIT MEMBERSHIP ELECTRIC
CORPORATIONS WITH LIKE POWERS TO CONTRACT.  FN20  KENTUCKY HAS
AUTHORIZED MUNICIPALITIES TO ESTABLISH AND MAINTAIN LIGHT, HEAT, AND
POWER PLANTS; FN21  AND HAS PROVIDED FOR THE ORGANIZATION OF NONPROFIT
COOPERATIVE ELECTRIC CORPORATIONS WHICH MAY CONTRACT WITH THE AUTHORITY
FOR PURCHASE OF ENERGY AND STIPULATE AS TO RESALE PRICES.  FN22
MISSISSIPPI, WHICH HAS NO STATE LAW FOR REGULATION OF UTILITIES, HAS
EMPOWERED MUNICIPAL AND COUNTY GOVERNMENTS TO ESTABLISH AND MAINTAIN
ELECTRIC DISTRIBUTION SYSTEMS WHICH MAY BUY POWER FROM THE AUTHORITY
AND CONTRACT AS TO RESALE PRICES; FN23  HAS CREATED A RURAL ELECTRICAL
AUTHORITY AND AUTHORIZED THE FORMATION OF POWER DISTRICTS AND NONPROFIT
COMPETITIVES, ALL COMPETENT TO PURCHASE ENERGY FROM THE AUTHORITY AND
DISTRIBUTE IT AND TO CONTRACT WITH THE AUTHORITY AS TO RESALE RATES TO
CONSUMERS.  FN24  THE AUTHORITY'S ACTION IN THESE STATES IS CONSONANT
WITH STATE LAW, BUT, AS HAS BEEN SHOWN, IF THE FACT WERE OTHERWISE, THE
APPELLANTS WOULD HAVE NO STANDING TO RESTRAIN ITS CONTINUANCE.    AS
THE AUTHORITY HAS NOT ACTED IN ANY WAY IN NORTH CAROLINA, SOUTH
CAROLINA, VIRGINIA OR WEST VIRGINIA, THE APPELLANT'S CONTENTION THAT
ITS PROPOSED ENTRY INTO SOME OR ALL OF THEM CONFERS A RIGHT TO SUE FOR
AN INJUNCTION AGAINST INJURY THEREBY THREATENED HAS EVEN LESS SUPPORT. 
FN25    THE APPELLANTS MAY NOT RAISE ANY QUESTION OF DISCRIMINATION
FORBIDDEN BY THE FOURTEENTH AMENDMENT INVOLVED IN STATE EXEMPTION OF
THE AUTHORITY FROM COMMISSION REGULATION.  FOR THIS REASON FROST V.
CORPORATION COMMISSION, 278 U.S. 515, ON WHICH THEY RELY, IS
INAPPLICABLE.  MANIFESTLY THERE CAN BE NO CHALLENGE OF THE VALIDITY OF
STATE ACTION IN THIS SUIT. 

A DISTINCT GROUND UPON WHICH STANDING TO MAINTAIN THE SUIT IS SAID TO
REST IS THAT THE ACTS OF THE AUTHORITY CANNOT BE UPHELD WITHOUT
PERMITTING FEDERAL REGULATION OF PURELY LOCAL MATTERS RESERVED TO THE
STATES OR THE PEOPLE BY THE TENTH AMENDMENT AND SANCTIONING DESTRUCTION
OF THE LIBERTY SAID TO BE GUARANTEED BY THE NINTH AMENDMENT TO THE
PEOPLE OF THE STATES TO ACQUIRE PROPERTY AND EMPLOY IT IN A LAWFUL
BUSINESS.  THE PROPOSITION CAN MEAN ONLY THAT SINCE THE AUTHORITY SELLS
ELECTRICITY AT RATES LOWER THAN THOSE HERETOFORE MAINTAINED BY THE
APPELLANTS SUCH SALE IS AN INDIRECT REGULATION OF APPELLANTS' RATES. 
BUT THE COMPETITION OF A PRIVATELY OWNED COMPANY AUTHORIZED BY THE
STATE TO ENTER THE TERRITORY SERVED BY ONE OF THE APPELLANTS WOULD, IN
THE SAME SENSE, CONSTITUTE A REGULATION OF RATES.  THE CONTENTION
AMOUNTS TO SAYING THAT COMPETITION BY AN INDIVIDUAL OR A STATE
CORPORATION IS NOT REGULATION BUT COMPETITION BY A FEDERAL AGENCY IS.
IN CONTRACTING WITH MUNICIPALITIES AND NONPROFIT CORPORATIONS THE
AUTHORITY HAS STIPULATED RESPECTING THE PRICE AT WHICH THE ENERGY
SUPPLIED SHALL BE RESOLD BY ITS VENDEES.  THAT IS SAID TO BE A
REGULATION OF THE APPELLANT'S BUSINESS.  BUT IT IS NOTHING MORE THAN AN
INCIDENT OF COMPETITION; IT IS BUT A METHOD OF SEEKING AND ASSURING A
MARKET FOR THE POWER WHICH THE AUTHORITY HAS FOR SALE, AND A LAWFUL
MEANS TO THAT END.  FN26  THE SALE OF GOVERNMENT PROPERTY IN
COMPETITION WITH OTHERS IS NOT A VIOLATION OF THE TENTH AMENDMENT.  AS
WE HAVE SEEN THERE IS NO OBJECTION TO THE AUTHORITY'S OPERATIONS BY THE
STATES, AND, IF THIS WERE NOT SO, THE APPELLANTS, ABSENT THE STATES OR
THEIR OFFICERS, HAVE NO STANDING IN THIS SUIT TO RAISE ANY QUESTION
UNDER THE AMENDMENT.  FN27  THESE CONSIDERATIONS ALSO ANSWER THE
ARGUMENT THAT THE APPELLANTS HAVE A CAUSE OF ACTION FOR ALLEGED
INFRACTIONS OF THE NINTH AMENDMENT. 

FINALLY, IT IS ASSERTED THAT THE RIGHT TO MAINTAIN THIS SUIT IS
SUSTAINED BY CERTAIN ALLEGATIONS OF CONCERTED ACTION BY THE OFFICIALS
OF THE AUTHORITY AND THE PUBLIC WORKS ADMINISTRATOR.  THE BILL ALLEGES
THAT HAVING ADOPTED AN UNLAWFUL PLAN THE DEFENDANTS HAVE COOPERATED,
AND THREATEN TO CONTINUE TO COOPERATE IN ITS EXECUTION, WITH HAROLD L.
ICKES, AS ADMINISTRATOR OF THE FEDERAL ADMINISTRATION OF PUBLIC WORKS,
IN A SYSTEMATIC CAMPAIGN TO COERCE AND INTIMIDATE THE COMPLAINANTS INTO
SELLING THEIR EXISTING SYSTEMS IN MUNICIPALITIES OR TERRITORY IN WHICH
THE AUTHORITY DESIRES TO SEIZE THE MARKET FOR ELECTRICITY; THAT, IN
ORDER TO MAKE THIS COERCION EFFECTIVE, ICKES HAS, IN COOPERATION WITH,
OR ON REQUEST OF, THE AUTHORITY, ANNOUNCED LOANS AND GRANTS OF FEDERAL
FUNDS TO MUNICIPALITIES; THAT THE AUTHORITY AND ICKES HAVE COOPERATED,
AND CONTINUE TO DO SO, TO FORCE MUNICIPALITIES TO PURCHASE THE
AUTHORITY'S POWER UNDER THREATS THAT, UNLESS THEY DO, PROPOSED LOANS
AND GRANTS FOR MUNICIPAL SYSTEMS WILL NOT BE MADE.  THE BILL STATES
THAT, THOUGH ICKES "CONFEDERATED AND ACTED WITH THE DEFENDANTS IN SOME
OF ITS ILLEGAL ACTS AND IS, THEREFORE, A PROPER PARTY, HE IS NOT A
NECESSARY PARTY AND IS NOT JOINED AS A DEFENDANT BECAUSE HE IS BEYOND
THE JURISDICTION OF THE COURT."  THERE IS A PRAYER THAT THE DEFENDANTS
BE RESTRAINED FROM CONFEDERATING AND ACTING IN CONCERT WITH ICKES FOR
THE DESCRIBED ENDS. 

THE DISTRICT COURT FINDS THAT THE AUTHORITY HAS NOT INDULGED IN
COERCION, DURESS, FRAUD, OR MISREPRESENTATION IN PROCURING CONTRACTS
WITH MUNICIPALITIES, COOPERATIVES OR OTHER PURCHASERS OF POWER; HAS NOT
ACTED WITH ANY MALICIOUS OR MALEVOLENT MOTIVE; AND HAS NOT CONSPIRED
WITH MUNICIPALITIES OR OTHER PURCHASERS OF POWER.  THE RECORD JUSTIFIES
THESE FINDINGS.  IT IS CLAIMED, HOWEVER, THAT THEY ARE INCONCLUSIVE
SINCE THE COURT ERRONEOUSLY EXCLUDED MUCH PROFFERED EVIDENCE TENDING TO
SUSTAIN THE CHARGE.  AN EXAMINATION OF THE RECORD DISCLOSES THAT
CERTAIN OF THE EVIDENCE OFFERED WAS PROPERLY EXCLUDED, AND THAT IN
OTHER INSTANCES THE REJECTION OF THAT OFFERED CONSTITUTED, AT MOST,
HARMLESS ERROR. 

ERROR IS ASSIGNED TO THE TRIAL COURT'S REFUSAL TO PERMIT THE TAKING
OF THE DEPOSITION OF THE PUBLIC WORKS ADMINISTRATOR.  IN VIEW OF THE
PRIOR OPPORTUNITY WHICH THE CLAIMANTS HAD TO TAKE THIS DEPOSITION, THE
LATENESS OF THE APPLICATION, AND OTHER FACTORS, PERMISSION TO TAKE THE
DEPOSITION WAS A MATTER WITHIN THE COURT'S DISCRETION AND IT DOES NOT
APPEAR THAT THE DISCRETION WAS ABUSED. 

THE REMAINING ASSIGNMENTS OF ERROR DIRECTED TO THE EXCLUSION OF
EVIDENCE OF COOPERATION BETWEEN THE TWO FEDERAL AGENCIES GO TO THE
REJECTION OF EVIDENCE CONSISTING LARGELY OF CORRESPONDENCE BETWEEN THEM
AND PRESS RELEASES OR ANNOUNCEMENTS BY OFFICERS OF ONE OR THE OTHER. 
THE RECORD CONTAINS ALL BUT A FEW OF THESE REJECTED DOCUMENTS, THOSE
OMITTED APPARENTLY NOT BEING THOUGHT OF IMPORTANCE.  SCRUTINY OF THEM
COMPELS THE CONCLUSION THAT IF THE REJECTED EVIDENCE HAD BEEN ADMITTED,
THE TRIAL COURT'S HOLDING THAT A CONSPIRACY HAD NOT BEEN PROVED SHOULD
NOT BE OVERRULED. 

THE ONLY FINDINGS ON THIS SUBJECT REQUESTED BY THE APPELLANTS WERE TO
THE EFFECT THAT THE PUBLIC WORKS ADMINISTRATION HAS COOPERATED WITH AND
ASSISTED THE TENNESSEE VALLEY AUTHORITY IN THE FURTHERANCE OF THE
LATTER'S POWER PROGRAM AND THAT THE FORMER HAS MADE CONTRACTS AND
ALLOTMENTS FOR LOANS AND GRANTS TO TWENTY-THREE MUNICIPALITIES IN THE
STATES OF ALABAMA, MISSISSIPPI, AND TENNESSEE, AMOUNTING TO ABOUT
FOURTEEN MILLION DOLLARS, FOR THE PURPOSE OF CONSTRUCTING MUNICIPAL
SYSTEMS TO DISTRIBUTE THE AUTHORITY'S POWER IN COMPETITION WITH THE
APPELLANTS; THAT THE APPLICATIONS FOR LOAN AND GRANT IN SOME INSTANCES
SPECIFY THAT THE MUNICIPAL SYSTEM WILL DUPLICATE A PRIVATELY OWNED
SYSTEM; IN OTHERS THAT A LARGE BUSINESS WILL BE DONE BY THE MUNICIPAL
PLANTS BECAUSE OF THE LOW PROMOTIONAL RATES OF THE AUTHORITY; THAT SOME
OF THE APPLICATIONS STATE THEY WERE FILED TO TAKE ADVANTAGE OF THE LOW
RATES OFFERED BY THE AUTHORITY AND THAT, WITH FEW EXCEPTIONS, THEY
STATE THAT THE ELECTRICITY TO BE DISTRIBUTED IN THE CITY WILL BE
PURCHASED FROM THE AUTHORITY.  A FURTHER REQUESTED FINDING IS THAT THE
APPLICATIONS OF CERTAIN ALABAMA CITIES RECITE THAT THEY HAVE SECURED
WRITTEN CONTRACTS FROM PRACTICALLY ALL CONSUMERS; THAT THESE CONTRACTS
REFER TO LOWER RATES TO BE SECURED, PROVIDED THE RATES CHARGED BY THE
CITY SHALL BE THUS PRESCRIBED BY THE AUTHORITY FOR RESALE AT RETAIL. 
THE COURT REFUSED TO MAKE THE REQUESTED FINDINGS AND ERROR IS ASSIGNED
TO THIS REFUSAL.  IT IS APPARENT THAT IF THE COURT HAD MADE THE
FINDINGS NO CONCLUSION OF CONFEDERATION OR CONSPIRACY, WITH MALICIOUS
INTENT TO HARM THE APPELLANTS OR TO DESTROY THEIR BUSINESS, WOULD
THEREBY HAVE BEEN REQUIRED. 

COOPERATION BY TWO FEDERAL OFFICIALS, ONE ACTING UNDER A STATUTE
WHEREBY FUNDS ARE PROVIDED FOR THE ERECTION OF MUNICIPAL PLANTS, AND
THE OTHER UNDER A STATUTE AUTHORIZING THE PRODUCTION OF ELECTRICITY AND
ITS SALE TO SUCH PLANTS, IN COMPETITION WITH THE APPELLANTS, DOES NOT
SPELL CONSPIRACY TO INJURE THEIR BUSINESS.  AS THE COURT BELOW HELD,
SUCH COOPERATION DOES NOT INVOLVE UNLAWFUL CONCERT, PLAN, OR DESIGN, OR
COOPERATION TO COMMIT AN UNLAWFUL ACT OR TO COMMIT ACTS OTHERWISE
LAWFUL WITH THE INTENT TO VIOLATE A STATUTE. 

IN NO ASPECT OF THE CASE HAVE THE APPELLANTS STANDING TO MAINTAIN THE
SUIT AND THE BILL WAS PROPERLY DISMISSED. 

THE DECREE IS AFFIRMED. 

FN1  ACT OF MAY 18, 1933, 48 STAT. 58, AS AMENDED BY ACT OF AUGUST
31, 1935, 49 STAT. 1075; 16 U.S.C. SEC. 831, ET SEQ. 

FN2  50 STAT. 751, 752, 28 U.S.C. SEC. 380A. 

FN3  21 F.SUPP.  947. 

FN4  GEORGIA POWER COMPANY WAS ENJOINED FROM MAINTAINING THE ACTION. 
SEE GEORGIA POWER CO. V. TENNESSEE VALLEY AUTHORITY, 17 F.SUPP.  769;
89 F.2D 218, 302 U.S. 692.  FOUR OTHER COMPLAINANTS HAVE SINCE BEEN
PERMITTED TO WITHDRAW FROM THE LITIGATION WITHOUT PREJUDICE TO ITS
PROSECUTION BY THE REMAINING APPELLANTS. 

FN5  PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 619; STAFFORD V.
WALLACE, 258 U.S. 495, 512; MASSACHUSETTS V. MELLON, 262 U.S. 447,
488.  THE SAME RULE APPLIES TO SUITS AGAINST STATE OFFICERS:  OSBORN V.
THE BANK, 9 WHEAT.  738, 857, 859; TERRACE V. THOMPSON, 263 U.S. 197,
214; STERLING V. CONSTANTIN, 287 U.S. 378, 393. 

FN6 IN RE AYERS, 123 U.S. 443; WALLA WALLA V. WALLA WALLA WATER CO.,
172 U.S. 1; AMERICAN SCHOOL OF MAGNETIC HEALING V. MCANNULTY, 187 U.S.
94; EX PARTE YOUNG, 209 U.S. 123; SCULLY V. BIRD, 209 U.S. 481;
PHILADELPHIA CO. V. STIMSON, SUPRA; LANE V. WATTS, 234 U.S. 525; TRUAX
V. RAICH, 239 U.S. 33; LIPKE V. LEDERER, 259 U.S. 557. 

FN7  SEE CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11 PET. 420, 548;
TURNPIKE CO. V. THE STATE, 3 WALL.  210, 213; HAMILTON GAS LIGHT CO. V.
HAMILTON CITY, 146 U.S. 258, 268; PEARSALL V. GREAT NORTHERN RY. CO.,
161 U.S. 646, 664. 

FN8  COMPARE LEHIGH WATER CO. V. EASTON, 121 U.S. 388. 

FN9  JOPLIN V. SOUTHWEST MISSOURI LIGHT CO., 191 U.S. 150; HELENA
WATER WORKS CO. V. HELENA, 195 U.S. 383, 393; MADERA WATER WORKS V.
MADERA, 228 U.S. 454; GREEN V. FRAZIER, 253 U.S. 233; PUGET SOUND POWER
& LIGHT CO. V. SEATTLE, 291 U.S. 619, 624. 

FN10  WALLA WALLA V. WALLA WALLA WATER CO., SUPRA; SUPERIOR WATER, L.
& P. CO. V. SUPERIOR, 263 U.S. 125. 

FN11  RAILROAD CO. V. ELLERMAN, 105 U.S. 166, 173; ALABAMA POWER CO.
V. ICKES, 302 U.S. 464, 479-483, AND CASES CITED; GREENWOOD COUNTY V.
DUKE POWER CO., 81 F.2D 986, 997; DUKE POWER CO. V. GREENWOOD COUNTY,
91 F.2D 665, 676; AFFIRMED 302 U.S. 485. 

FN12  IN MISSISSIPPI THERE IS NO STATE COMMISSION, BUT MUNICIPALITIES
ARE GIVEN THE AUTHORITY TO REGULATE UTILITIES WITHIN THEIR TERRITORIAL
LIMITS.  MISSISSIPPI CODE (1930) SECS. 2400-1, 2414. 

FN13  ALABAMA CODE (1928) SEC. 9795; CARROLL'S KENTUCKY STATUTES
(1936) SEC. 3952-25; NORTH CAROLINA CODE (1935) SEC. 1037(D); WILLIAMS'
TENNESSEE CODE (1934) SECS. 5502-3; SOUTH CAROLINA CODE (1934 SUPP.)
SEC. 8555-2(23); VIRGINIA CODE (1936) SECS. 3693-3774K; WEST VIRGINIA
CODE (1937) SEC. 2562(1). 

FN14  COMPARE WHEELING & B. BRIDGE CO. V. WHEELING BRIDGE CO., 138
U.S. 287, 292; WILLIAMS V. WINGO, 177 U.S. 601, 604. 

FN15  ALABAMA ACTS, REGULAR SESSION 1935, NO. 1. 

FN16  ALABAMA ACTS, REGULAR SESSION 1935, NO. 155. 

FN17  ALABAMA ACTS, REGULAR SESSION 1935, NO. 45. 

FN18  TENNESSEE PUBLIC ACTS 1935, CH. 42, P. 98. 

FN19  TENNESSEE PUBLIC ACTS 1935, CH. 32, P. 28; TENNESSEE PUBLIC
ACTS 1935, CH. 37, P. 78. 

FN20  TENNESSEE PUBLIC ACTS 1937, CH. 231, P. 882. 

FN21  CARROLL'S KENTUCKY STATUTES (1936) SECS. 3480 D-1 TO 3480 D
22. 

FN22  KENTUCKY ACTS, FOURTH EXTRAORDINARY SESSION, 1936-1937, CH. 6,
P. 25. 

FN23  MISSISSIPPI LAWS, 1936, CH. 185, P. 354; CH. 271, P. 531. 

FN24  MISSISSIPPI LAWS, 1936, CH. 183, P. 334; CH. 187, P. 370; CH.
184, P. 342. 

FN25  IN FACT SEVERAL OF THE STATES IN QUESTION HAVE STATUTES WHICH
WOULD TO SOME EXTENT, AND IN SOME CIRCUMSTANCES, PERMIT THE PURCHASE
AND USE OF POWER CREATED BY THE AUTHORITY.  IN ALL OF THEM
MUNICIPALITIES MAY ESTABLISH AND OPERATE THEIR OWN DISTRIBUTION
SYSTEMS:  NORTH CAROLINA CODE (1935) SEC. 2807; SOUTH CAROLINA CODE
(1932) SECS. 7278-7280, 8262; VIRGINIA CODE (1936) SEC. 3031; WEST
VIRGINIA CODE (1937) SECS. 494, 591(86).  NORTH CAROLINA AND VIRGINIA
HAVE STATUTES PERMITTING THE FORMATION OF COOPERATIVES WHICH MAY BUY
POWER FROM THE AUTHORITY UNDER CONTRACTS FIXING RESALE RATES:  PUBLIC
LAWS OF NORTH CAROLINA, 1935, CH. 291, P. 312; VIRGINIA CODE (1936) CH.
159 A. SOUTH CAROLINA HAS CREATED A STATE RURAL ELECTRIFICATION
AUTHORITY WITH POWER TO BUY ELECTRICITY FROM ANY FEDERAL AGENCY:  SOUTH
CAROLINA CODE (1936 SUPPLEMENT) SECS. 6010-2 FF. 

FN26  OREGON & CALIFORNIA R. CO. V. UNITED STATES, 238 U.S. 393;
UNITED STATES V. GRATIOT, 26 FED. CAS. 12, 13-14; AFFIRMED 14 PET.
526. 

FN27  COMPARE GEORGIA POWER CO. V. TENNESSEE VALLEY AUTHORITY, 14
F.SUPP.  673, 676. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BUTLER. 

THE DECISION JUST ANNOUNCED GOES TOO FAR.  IT EXCLUDES FROM THE
COURTS COMPLAINANTS SEEKING CONSTITUTIONAL PROTECTION OF THEIR PROPERTY
AGAINST DEFENDANTS ACTING, AS IT IS ALLEGED, UNDER INVALID CLAIM OF
GOVERNMENTAL AUTHORITY IN SETTING UP AND CARRYING ON A PROGRAM
CALCULATED TO DESTROY COMPLAINANTS' BUSINESS.  THE ISSUES JOINED BY THE
PARTIES, TRIED BELOW AND FULLY PRESENTED TO THIS COURT, INCLUDE THE
QUESTION WHETHER, WHEN CONSTRUED TO AUTHORIZE THE THINGS DONE AND
THREATENED BY DEFENDANTS, THE CHALLENGED ENACTMENT IS AUTHORIZED BY THE
CONSTITUTION OR REPUGNANT TO THE FIFTH, NINTH, AND TENTH AMENDMENTS. 
THE ISSUES ALSO INCLUDE THE QUESTION WHETHER, AS BEING APPLIED, THE ACT
IS VOID BECAUSE THE EXECUTION OF DEFENDANTS' PROGRAM WILL DEPRIVE
COMPLAINANTS OF THEIR PROPERTY WITHOUT DUE PROCESS OF LAW IN
CONTRAVENTION OF THE FIFTH AMENDMENT.  THIS COURT HOLDS COMPLAINANTS
HAVE NO STANDING TO CHALLENGE THE VALIDITY OF THE ACT AND PUTS ASIDE AS
IMMATERIAL THEIR CLAIM THAT BY DEFENDANTS' UNAUTHORIZED ACTS THEIR
PROPERTIES ARE BEING DESTROYED.    THE OPINION STATES:  "THE
AUTHORITY'S ACTS WHICH THE APPELLANTS CLAIM GIVE RISE TO A CAUSE OF
ACTION, COMPRISE (1) THE SALE OF ELECTRICAL ENERGY AT WHOLESALE TO
MUNICIPALITIES EMPOWERED BY STATE LAW TO MAINTAIN AND OPERATE THEIR OWN
DISTRIBUTION SYSTEMS; (2) THE SALE OF SUCH ENERGY AT WHOLESALE TO
MEMBERSHIP CORPORATIONS ORGANIZED UNDER STATE LAW TO PURCHASE AND
DISTRIBUTE ELECTRICITY TO THEIR MEMBERS WITHOUT PROFIT; (3) THE SALE OF
FIRM AND SECONDARY POWER AT WHOLESALE TO INDUSTRIAL PLANTS." 

THAT THE SUBSTANCE OF COMPLAINANTS' CASE MAY NOT BE SO COMPRESSED IS
DISCLOSED BY THE SUMMARY OF THEIR BILL THAT FOLLOWS: 

COMPLAINANTS ARE 19 PUBLIC UTILITIES.  EACH, AUTHORIZED BY LAW, IS
ENGAGED IN GENERATING AND SELLING ELECTRICITY WITHIN THE POLITICAL
SUBDIVISIONS OF VARIOUS STATES.  SOME HAVE LONG-TERM CONTRACTS UNDER
WHICH THEY FURNISH LARGE QUANTITIES OF ELECTRICITY.  THEY ARE MORE THAN
ABLE TO FILL THE NEEDS OF THE TERRITORIES IN WHICH THEY OPERATE AND ARE
READY TO SUPPLY SUCH ADDITIONAL FACILITIES AS MAY BE NEEDED IN THE
FUTURE.  THEIR PROPERTIES ARE MODERN AND ECONOMICALLY OPERATED AND
POSSESS GREAT VALUE AS GOING CONCERNS.  THEIR RATES YIELD NO MORE THAN
A REASONABLE RETURN AND ARE FULLY REGULATED BY THE STATES IN WHICH THEY
SERVE. 

DEFENDANTS ARE THE TENNESSEE VALLEY AUTHORITY, A BODY CORPORATE
CREATED BY THE ACT OF MAY 18, 1933, WITH THE RIGHT TO SUE AND BE SUED,
AND ITS THREE DIRECTORS, CHARGED WITH THE DUTY OF EXERCISING THE POWERS
OF THE AUTHORITY.  HAROLD L. ICKES, THE ADMINISTRATOR OF THE PUBLIC
WORKS ADMINISTRATION, HAS CONFEDERATED WITH DEFENDANTS IN SOME ACTS
CHARGED TO BE ILLEGAL; HE IS NOT SUED BECAUSE BEYOND THE JURISDICTION
OF THE COURT.  FROM ITS PRINCIPAL OFFICE AT KNOXVILLE, TENNESSEE, THE
AUTHORITY CARRIES ON A PROPRIETARY BUSINESS AS A PUBLIC UTILITY FOR THE
GENERATION, TRANSMISSION, DISTRIBUTION AND SALE OF ELECTRICITY IN
TENNESSEE, MISSISSIPPI, GEORGIA AND ALABAMA. 

ON ITS FACE, THE ACT DISCLOSES PURPOSE TO AUTHORIZE A LARGE AND
INDETERMINATE NUMBER OF GREAT WORKS FOR THE PRIMARY PURPOSE OF CREATING
A VAST SUPPLY OF ELECTRIC POWER, TO USE THIS POWER TO ESTABLISH THE
UNITED STATES IN THE BUSINESS OF PRODUCING, TRANSMITTING, AND SELLING
ELECTRIC POWER, AND TO DISPOSE OF THIS POWER IN A MANNER INCONSISTENT
WITH THE PRINCIPLES OF OUR DUAL SYSTEM AND SO AS TO GOVERN THE CONCERNS
RESERVED TO THE STATES.  ANY REFERENCES IN THE ACT TO NAVIGATION OR TO
ANY OTHER CONSTITUTIONAL OBJECTIVE ARE UNSUBSTANTIAL AND MERE PRETENSES
OR PRETEXTS UNDER WHICH IT IS SOUGHT TO ACHIEVE AN OBJECT RESERVED TO
THE STATES.  EXCEPT WITH RESPECT TO POWER AVAILABLE AT WILSON DAM PRIOR
TO THE ACTS COMPLAINED OF, THE PROGRAM IS ONE OF CREATING AN OUTLET FOR
POWER DELIBERATELY PRODUCED AS A COMMERCIAL ENTERPRISE TO BE SOLD IN
UNLAWFUL AND DESTRUCTIVE COMPETITION WITH POWER NOW AVAILABLE IN
ADEQUATE QUANTITIES. 

THE PROGRAM CONTEMPLATES ULTIMATELY THE DEVELOPMENT OF ALL POWER
SITES ON THE TENNESSEE RIVER AND ALL ITS TRIBUTARIES AS AN INTEGRATED
ELECTRIC POWER SYSTEM, THE CONSTRUCTION AND OPERATION OF HYDRO-ELECTRIC
PLANTS AT THESE SITES, THE USE OF AUXILIARY STEAM PLANTS, THE
INTERCONNECTION OF ALL PLANTS, AND THE ELIMINATION OF EXISTING
PRIVATELY OWNED UTILITIES. 

IN THE AREA OF OVER 40,000 SQUARE MILES, THERE ARE 149 WATER POWER
SITES WHICH, WITH AUXILIARY STEAM PLANTS, WILL PRODUCE 25 BILLION
K.W.H. ANNUALLY.  PRESENT CONSUMPTION OF THE AREA IS 56% OF THAT
QUANTITY.  THE ELECTRIC POWER TO BE PRODUCED BY DEFENDANTS CAN ONLY BE
SOLD THROUGH DISPLACEMENT OF THE COMPLAINANTS.  EXECUTION OF THE
PROGRAM WILL NECESSARILY DESTROY ALL OR A SUBSTANTIAL PART OF THE
BUSINESS AND PROPERTY OF EACH OF THE COMPLAINANTS. 

DEFENDANTS HAVE TAKEN OVER WILSON DAM AND THE NITRATE PLANT AND HAVE
COMMENCED, OR RECOMMENDED TO CONGRESS, THE CONSTRUCTION OF 10 OTHER
DAMS; THEIR PROGRAM CALLS FOR 11 COMPLETED DAMS BY JULY 1, 1943.  THEY
HAVE PREPARED PLANS FOR THE CONSTRUCTION OF HIGH-TENSION TRANSMISSION
LINES FROM THE DAMS TO AT LEAST 14 CITIES AND INDEED TO THE WHOLE
AREA.  THEY HAVE PURCHASED OR ARE ATTEMPTING TO PURCHASE DISTRIBUTION
SYSTEMS IN AT LEAST 15 CITIES.  THEY HAVE ENTERED INTO CONTRACTS TO
SELL POWER TO VARIOUS COMMUNITIES AND INDUSTRIES FOR A 20-YEAR PERIOD
AND HAVE AGREED TO SUPPLY FIRM POWER TO OTHER AND LARGER CITIES. 

THE AVOWED PURPOSE OF THE PROGRAM IS TO EFFECT A FEDERAL REGULATION
OF INTRASTATE ELECTRIC RATES AND SERVICE BY A SO-CALLED "YARDSTICK"
METHOD OR "REGULATION BY COMPETITION."  THE YARDSTICK FOR WHOLESALE
RATES IS THE WHOLESALE RATE CHARGED BY THE AUTHORITY.  IT IS
UNREASONABLE AND CONFISCATORY AS A MEASURE OF COMPLAINANTS' RATES IN
THAT IT EXCLUDES THE COST OF THE MAJOR PART OF THE INVESTMENT NECESSARY
TO RENDER THE SERVICE AND EXCLUDES NECESSARY OPERATING EXPENSES.  THE
YARDSTICK FOR RETAIL RATES IS THE SUM OF THE WHOLESALE RATE AND THE
AMOUNT WHICH THE AUTHORITY ALLOWS MUNICIPALITIES TO ADD TO THE
WHOLESALE RATE TO COVER COST OF LOCAL DISTRIBUTION; IT EXCLUDES MANY
ITEMS OF NECESSARY COST OF RENDERING THE SERVICE. 

PURSUANT TO A PLAN PROMULGATED IN 1933, DEFENDANTS ARE CONDUCTING A
SYSTEMATIC CAMPAIGN FOR THE PURPOSE OF DISRUPTING THE ESTABLISHED
BUSINESS RELATIONS BETWEEN COMPLAINANTS AND THEIR CUSTOMERS, DESTROYING
THE GOOD WILL BUILT UP BY COMPLAINANTS, SEIZING THEIR MARKETS AND
INCITING THE RESIDENTS OF COMMUNITIES SERVED BY THEM TO COOPERATE WITH
DEFENDANTS IN THEIR SCHEME TO DEVELOP AN ABSOLUTE MONOPOLY. 

WITH FULL KNOWLEDGE OF THE NONCOMPENSATORY AND CONFISCATORY CHARACTER
OF THE YARDSTICK RATES, THEY HAVE REPRESENTED TO THE INHABITANTS OF
COMMUNITIES SERVED BY COMPLAINANTS THAT THESE "YARDSTICKS" WERE FAIR
MEASURES OF REASONABLE RATES AND HAVE THEREBY ATTEMPTED TO INCITE THE
INHABITANTS TO BUILD PUBLICLY OWNED SYSTEMS USING POWER FURNISHED BY
THE AUTHORITY, TO LEAD THEM TO BELIEVE THAT THEY ARE BEING CHARGED
UNREASONABLE RATES, TO STIR UP POLITICAL AGITATION AGAINST PRIVATELY
OWNED UTILITIES AND TO BRING COMPLAINANTS INTO DISREPUTE AND DISFAVOR. 

THE DEFENDANTS ATTEMPT TO COERCE COMPLAINANTS TO SELL DISTRIBUTION
SYSTEMS AND TRANSMISSION LINES, IN TERRITORIES WHICH DEFENDANTS INTEND
TO APPROPRIATE, AT PRICES FAR BELOW FAIR VALUE BY THREATENING THAT,
UNLESS COMPLAINANTS ACCEDE, THEY WILL CONSTRUCT, OR CAUSE TO BE
CONSTRUCTED, DUPLICATE FACILITIES SUBSIDIZED IN CONSTRUCTION AND
OPERATION BY FEDERAL FUNDS AND RENDER COMPLAINANTS' PROPERTIES WHOLLY
VALUELESS.  THE ADMINISTRATOR OF THE PUBLIC WORKS ADMINISTRATION HAS
COOPERATED WITH DEFENDANTS.  DEFENDANTS INFORM THE OWNERS THAT, UNLESS
THEY SELL, EITHER THE AUTHORITY OR THE MUNICIPALITIES WILL BUILD
DUPLICATE SYSTEMS WITH FEDERAL FUNDS.  AT DEFENDANTS' REQUEST, THE
ADMINISTRATOR AUTHORIZES AND ANNOUNCES A GIFT TO THE MUNICIPALITY OF
FROM 30% TO 45% OF THE COST OF THE DUPLICATE SYSTEM AND AGREES TO LEND
THE BALANCE, REPAYABLE OUT OF EARNINGS, IF ANY, OF THE DUPLICATE PLANT,
UPON CONDITION THAT THE MUNICIPALITY WILL AGREE TO USE POWER OF THE
AUTHORITY AND WILL, AS SOON AS POSSIBLE, OUST THE EXISTING UTILITY.  IF
THE UTILITY AGREES TO SELL, THE ALLOTMENTS ARE CANCELED WITHOUT REGARD
TO THE WILL OF THE MUNICIPALITY.  THIS POLICY HAS ALREADY BEEN APPLIED
IN CERTAIN CITIES.  THE DEFENDANTS AND ADMINISTRATOR ALSO COOPERATE TO
FORCE MUNICIPALITIES TO AGREE TO PURCHASE POWER FURNISHED BY THE
AUTHORITY BY THREATS THAT OTHERWISE FEDERAL ALLOTMENTS FOR PUBLIC WORKS
WILL BE CANCELED OR DENIED. 

DEFENDANTS HAVE CAUSED BILLS, DESIGNED TO FORWARD THEIR POWER
PROGRAM, TO BE SUBMITTED TO THE LEGISLATURES OF VARIOUS STATES IN THE
AREA AND HAVE LOBBIED FOR AND BROUGHT ABOUT THEIR PASSAGE.  THEY HAVE
INSTALLED AUTHORITY PERSONNEL THROUGHOUT THE AREA TO DISSEMINATE
PROPAGANDA IN BEHALF OF THE PROGRAM.  THE ELECTRIC HOME AND FARM
AUTHORITY, A CORPORATION SET UP AS A GOVERNMENTAL AGENCY OF WHICH THE
INDIVIDUAL DEFENDANTS ARE DIRECTORS, FINANCES SALE OF ELECTRICAL
DEVICES, PRINTS AND CIRCULATES COSTLY ADVERTISING IN PRAISE OF THE
AUTHORITY PROGRAM.  DEFENDANTS HAVE OFFERED TO SUPPLY ELECTRICITY TO
LARGE INDUSTRIAL CUSTOMERS OF SOME OF THE COMPLAINANTS AT
NONCOMPENSATORY AND DISCRIMINATORY RATES.  THEY HAVE ATTEMPTED TO
PERSUADE COMPLAINANTS' CUSTOMERS TO BREAK EXISTING CONTRACTS. 
COMPLAINANTS CANNOT MEET THIS COMPETITION BECAUSE OF THE
NONCOMPENSATORY RATES AND BECAUSE THEY ARE FORBIDDEN BY STATE LAW TO
MAKE DISCRIMINATORY RATES. 

THE BILL PRAYS INVALIDATION OF THE ACT AS UNCONSTITUTIONAL AND
INJUNCTION AND OTHER RELIEF AGAINST DEFENDANTS. 

UNQUESTIONABLY, THE BILL SHOWS THAT COMPLAINANTS ARE NOT ASSERTING A
RIGHT HELD, OR COMPLAINING OF AN INJURY SUSTAINED, IN COMMON WITH THE
GENERAL PUBLIC.  THEY ALLEGE FACTS THAT UNMISTAKABLY SHOW THAT EACH HAS
A VALUABLE RIGHT AS A PUBLIC UTILITY, NON-EXCLUSIVE THOUGH IT IS, TO
SERVE IN TERRITORY COVERED BY ITS FRANCHISE, AND THAT, INEVITABLY THE
VALUE OF ITS BUSINESS AND PROPERTY USED WILL SUFFER IRREPARABLE
DIMINUTION BY DEFENDANTS' PROGRAM AND ACTS COMPLAINED OF. IF, BECAUSE
OF CONFLICT WITH THE CONSTITUTION, THE ACT DOES NOT AUTHORIZE THE
ENTERPRISE FORMULATED AND BEING EXECUTED BY DEFENDANTS, THEN THEIR
CONDUCT IS UNLAWFUL AND INFLICTS UPON COMPLAINANTS DIRECT AND SPECIAL
INJURY OF GREAT CONSEQUENCE.  THEREFORE, THEY ARE ENTITLED TO HAVE THIS
COURT DECIDE UPON THE CONSTITUTIONAL QUESTIONS THEY HAVE BROUGHT HERE. 
SEE MASSACHUSETTS V. MELLON, 262 U.S. 447, 488; FROST V. CORPORATION
COMMISSION, 278 U.S. 515, 521. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS OPINION. 
..END :















INLAND STEEL CO. V. U.S., 306 U.S. 153 


NO. 227.  ARGUED JANUARY 3, 4, 1939.  - DECIDED JANUARY 30, 1939.  -
AFFIRMED. 


1.  IN A SUIT BY A SHIPPER TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION REQUIRING A CARRIER TO CEASE PAYING THE SHIPPER
TARIFF ALLOWANCES FOR SPOTTING CARS IN THE SHIPPER'S PLANT, WHICH THE
COMMISSION HAD FOUND UNLAWFUL, THE DISTRICT COURT IN GRANTING AN
INTERLOCUTORY INJUNCTION IMPOSED THE CONDITION, WITHOUT OBJECTION FROM
THE SHIPPER, THAT FURTHER PAYMENTS BE WITHHELD BY THE CARRIER, IN A
SEPARATE ACCOUNT, TO BE PAID OVER TO THE SHIPPER OR CANCELED UPON
FURTHER ORDER OF THE COURT.  HELD WITHIN THE EQUITABLE POWER OF THE
COURT, THOUGH NOT REQUESTED BY THE CARRIER NOR, SPECIFICALLY, BY THE
COMMISSION.  P. 156. 

2.  THE POWER OF THE DISTRICT COURT SO TO IMPOUND THE ALLOWANCES AND,
FINALLY, UPON SUSTAINING THE COMMISSION AND DISMISSING THE BILL, TO
ORDER THAT THE FUND BE RETAINED BY THE CARRIER, WAS NOT AFFECTED BY THE
FACT THAT BECAUSE OF THE PRELIMINARY INJUNCTION, THE CARRIER HAD KEPT
IN FORCE ITS PUBLISHED TARIFF PROVIDING FOR THE ALLOWANCES, OR BY THE
FACT THAT FOR THE SAME REASON THE COMMISSION HAD UNDERTAKEN TO POSTPONE
THE EFFECTIVE DATE OF ITS ORDER.  PP. 158, 159. 

3.  APART FROM THE PRIMARY ISSUE OF THE VALIDITY OF THE ALLOWANCES,
IT WAS NOT NECESSARY THAT EVIDENCE BE TAKEN AND SPECIAL FINDINGS BE
MADE WITH RESPECT TO THE DISPOSITION OF THE IMPOUNDED FUND.  P. 161. 

INLAND STEEL CO. V. UNITED STATES ET AL.* 

*TOGETHER WITH NO. 228, CHICAGO BY-PRODUCT COKE CO. V. UNITED STATES
ET AL., ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF ILLINOIS. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEALS FROM DECREES OF THE DISTRICT COURT IN SUITS TO SET ASIDE
ORDERS OF THE INTERSTATE COMMERCE COMMISSION RESTRAINING CARRIERS FROM
PAYING ALLOWANCES FOR SPOTTING CARS TO PLAINTIFF-APPELLANT SHIPPERS. 
SEE 23 F.SUPP.  291.  THESE APPEALS WERE DIRECTED ONLY TO PROVISIONS OF
THE FINAL DECREES REQUIRING THAT FUNDS RESULTING FROM IMPOUNDING OF THE
ALLOWANCES DURING THE SUIT BE RETAINED BY THE CARRIERS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

IN NO. 227, AFTER FULL HEARINGS THE INTERSTATE COMMERCE COMMISSION,
ON JULY 11, 1935, FOUND AND REPORTED  FN1  THAT THE INDIANA HARBOR BELT
RAILROAD WAS ENGAGED IN THE PRACTICE OF PAYING AN ALLOWANCE FOR
APPELLANT'S SERVICE IN SPOTTING CARS IN APPELLANT'S PLANT; FN2  THAT
APPELLANT WAS PERFORMING THIS PLANT SERVICE FOR ITS OWN CONVENIENCE;
THAT THE RAILROAD WAS UNDER NO LEGAL OBLIGATION TO SPOT THE CARS AND
THEREFORE THE ALLOWANCE WAS PAID FOR SERVICE FOR WHICH THE RAILROAD WAS
NOT COMPENSATED UNDER LINE-HAUL RATES; THAT THE ALLOWANCE WAS UNLAWFUL
AND AFFORDED APPELLANT A PREFERENTIAL SERVICE, NOT ACCORDED TO SHIPPERS
GENERALLY, AMOUNTING TO REFUND OR REMISSION OF PART OF THE RATES
CHARGED OR COLLECTED AS COMPENSATION FOR TRANSPORTING FREIGHT.  ON THE
SAME DATE, AN ORDER OF THE COMMISSION INCORPORATED ITS REPORT AND
FINDINGS, INCLUDING THE FINDING THAT "BY THE PAYMENT OF SAID ALLOWANCES
THE INDIANA BELT RAILROAD COMPANY VIOLATES THE INTERSTATE COMMERCE
ACT."  THIS ORDER ALSO DIRECTED THE RAILROAD TO "CEASE AND DESIST ON OR
BEFORE SEPTEMBER 3, 1935, AND THEREAFTER TO ABSTAIN FROM SUCH UNLAWFUL
PRACTICE." 

AUGUST 28, 1935, UPON PETITION OF APPELLANT, THE DISTRICT COURT,
THREE JUDGES SITTING, GRANTED AN INTERLOCUTORY INJUNCTION BY WHICH THE
COMMISSION'S REPORT AND ORDER WERE "SUSPENDED, STAYED, AND SET ASIDE" -
"PENDING THE FURTHER ORDER OF THE COURT"; THE COMMISSION WAS RESTRAINED
AND ENJOINED FROM ENFORCING THEM; AND, THE RAILROAD HAVING PREVIOUSLY
GIVEN PUBLIC NOTICE THAT ITS PUBLISHED TARIFF PROVIDING FOR THE
ALLOWANCE WOULD BE CANCELLED AS OF SEPTEMBER 3, 1935, IN ACCORDANCE
WITH THE COMMISSION'S ORDER, THE INJUNCTION SUSPENDED THE EFFECTIVE
DATE OF THE CANCELLATION.  BUT THE INTERLOCUTORY INJUNCTION ALSO
PROVIDED "THAT UNTIL THE FURTHER ORDER OF THE COURT, ANY AND ALL SUMS
DUE AND PAYABLE TO PLAINTIFF (APPELLANT), UNDER THE  ...  TARIFF
PROVIDING SAID ALLOWANCE, SHALL BE SET UP BY DEFENDANT INDIANA HARBOR
BELT RAILROAD COMPANY ON ITS BOOKS OF ACCOUNT, WHICH SUMS SO SET UP
SHALL BE PAID OVER TO  ...  (APPELLANT), OR CANCELED, ONLY UPON THE
FURTHER ORDER OF THIS COURT, (APPELLANT)  ...  BY ITS COUNSEL HAVING
AGREED IN OPEN COURT TO SUCH ARRANGEMENT, WITHOUT PREJUDICE." 

FEBRUARY 26, 1937, THE COMMISSION ENTERED AN ORDER PURPORTING TO
EXTEND THE EFFECTIVE DATE OF ITS COMMAND TO "CEASE AND DESIST" TO JUNE
15, 1937, BUT SPECIFICALLY PROVIDED THAT ITS ORDER OF JULY 11, 1935,
SHOULD "IN ALL OTHER RESPECTS REMAIN IN FULL FORCE AND EFFECT." 

APRIL 27, 1938, THE DISTRICT COURT DISMISSED APPELLANT'S PETITION FOR
WANT OF EQUITY, DISSOLVED THE INTERLOCUTORY INJUNCTION, AND ORDERED THE
ACCRUED ALLOWANCES THAT HAD BEEN SET ASIDE IN A SPECIAL ACCOUNT BY THE
RAILROAD AS REQUIRED BY THE INTERLOCUTORY INJUNCTION TO "BE RETAINED BY
...  (THE RAILROAD) AS A PART OF ITS GENERAL FUNDS AND SAID ACCOUNT
CANCELED." 

APPELLANT CONCEDES THE CORRECTNESS OF THE DISTRICT COURT'S DECREE
HOLDING THE COMMISSION'S ORDER VALID, DISMISSING THE PETITION AND
DENYING A PERMANENT INJUNCTION.  FN3  THE APPEAL ONLY SEEKS A REVIEW OF
THE COURT'S ACTION IN ORDERING THAT THE UNLAWFUL ALLOWANCES ACCUMULATED
AFTER THE DATE OF THE INTERLOCUTORY INJUNCTION BE RETAINED BY THE
RAILROAD AND NOT PAID TO APPELLANT. 

FIRST.  IN GRANTING THE INTERLOCUTORY INJUNCTION, THE DISTRICT COURT
PROCEEDED UNDER A JURISDICTIONAL ACT WHICH PROVIDES THAT "  ...  THE
COURT, IN ITS DISCRETION, MAY RESTRAIN OR SUSPEND, IN WHOLE OR IN PART,
THE OPERATION OF THE COMMISSION'S ORDER PENDING THE FINAL HEARING AND
DETERMINATION OF THE SUIT."  FN4  APPELLANT INVOKED THE COURT'S EQUITY
POWERS.  FN5 

A COURT OF EQUITY "IN THE EXERCISE OF ITS DISCRETION, FREQUENTLY
RESORTS TO THE EXPENDIENT OF IMPOSING TERMS AND CONDITIONS UPON THE
PARTY AT WHOSE INSTANCE IT PROPOSES TO ACT.  THE POWER TO IMPOSE SUCH
CONDITIONS IS FOUNDED UPON, AND ARISES FROM, THE DISCRETION WHICH THE
COURT HAS IN SUCH CASES, TO GRANT, OR NOT TO GRANT, THE INJUNCTION
APPLIED FOR.  IT IS A POWER INHERENT IN THE COURT, AS A COURT OF
EQUITY, AND HAS BEEN EXERCISED FROM TIME IMMEMORIAL."  FN6 

IN THE EXERCISE OF ITS DISCRETION, THE DISTRICT COURT IMPOSED
CONDITIONS IN ITS DECREE GRANTING APPELLANT'S PETITION FOR AN
INTERLOCUTORY INJUNCTION.  APPELLANT NEITHER OBJECTED TO THE CONDITIONS
NOR SOUGHT REVIEW OF THE COURT'S ACTION IN IMPOSING THEM, BUT UNDER THE
INTERLOCUTORY INJUNCTION ENJOYED FOR THREE YEARS THE SUSPENSION - WHICH
IT HAD SOUGHT - OF THE COMMISSION'S ORDER, PENDING LITIGATION.  NOW,
THE LITIGATION ENDED, APPELLANT INSISTS THAT THE DISTRICT COURT LACKED
JURISDICTION TO DO MORE THAN VACATE ITS INTERLOCUTORY INJUNCTION AND
DISMISS THE PETITION, SINCE NO PLEADINGS OF THE RAILROAD OR THE
COMMISSION SOUGHT THE CREATION OF THE SPECIAL ALLOWANCE ACCOUNT.  BUT
THIS OVERLOOKS THE GOVERNING PRINCIPLE THAT IT IS THE DUTY OF A COURT
OF EQUITY GRANTING INJUNCTIVE RELIEF TO DO SO UPON CONDITIONS THAT WILL
PROTECT ALL - INCLUDING THE PUBLIC - WHOSE INTERESTS THE INJUNCTION MAY
AFFECT.  FN7  AND THE COMMISSION, IN DEFENDING ITS REPORT AND ORDER,
ACTED UNDER ITS STATUTORY DUTY AS THE REPRESENTATIVE OF THE INTEREST
WHICH THE PUBLIC, AS WELL AS THE RAILROADS, HAVE IN THE MAINTENANCE OF
FAIR, REASONABLE AND NON-DISCRIMINATORY TRANSPORTATION PRACTICES.  FN8
MOREOVER, IN INTERVENING THE COMMISSION PRAYED THAT IT HAVE "THE
BENEFIT OF SUCH  ...  DECREES OR RELIEF AS MAY BE JUST AND PROPER." 

THE INTERSTATE COMMERCE COMMISSION HAS PRIMARY JURISDICTION TO
DETERMINE WHETHER THE GRANTING OF ALLOWANCES FOR SERVICES PERFORMED BY
SHIPPERS CONSTITUTES A DISCRIMINATORY PRACTICE.  FN9  HERE, IN THE
EXERCISE OF ITS PRIMARY JURISDICTION, THE COMMISSION CONSIDERED THE
TECHNICAL QUESTIONS INVOLVED AND MADE FINDINGS THAT THE RAILROAD'S
PRACTICE WAS UNLAWFULLY PREFERENTIAL AND DISCRIMINATORY.  IN DOING SO,
THE COMMISSION WAS ACTING IN THE INTEREST OF SHIPPERS GENERALLY AND IN
BEHALF OF THE PUBLIC AND THE NATIONAL RAILROAD SYSTEM.  THE DISTRICT
COURT, AT THE BEHEST OF THIS APPELLANT, RESTRAINED THE ENFORCEMENT OF
THE COMMISSION'S REPORT AND ORDER EMBODYING THESE FINDINGS.  WHILE THUS
ACTING IN THE INTEREST OF A SINGLE SHIPPER, THE COURT PROPERLY TOOK
STEPS TO PROTECT THE OTHER INTERESTS - REPRESENTED BY THE COMMISSION -
FROM INJURIES THAT THE INJUNCTION MIGHT CAUSE.  IT DID SO BY ORDERING
THE PAYMENTS, WHICH THE COMMISSION HAD FOUND UNLAWFUL, TO BE CONTINUED
ON CONDITION THAT THEY BE SEGREGATED OR PAID INTO A SEPARATE ACCOUNT,
PENDING THE COURT'S REVIEW OF THE COMMISSION'S FINDING OF ILLEGALITY. 
THIS SEGREGATED ACCOUNT THUS ACCRUED AS A RESULT OF JUDICIAL RESTRAINT
OF ADMINISTRATIVE PROCEEDINGS IN WHICH THE PAYMENTS HAD BEEN DECLARED
UNLAWFUL.  WHEN THE COURT FINALLY DETERMINED THAT THE ADMINISTRATIVE
FINDINGS AND ORDER WERE CORRECT, APPELLANT COULD CLAIM AN INTEREST IN
THE FUND ONLY BY ASSERTING A RIGHT TO PAYMENTS FORBIDDEN BY LAW, AND IT
BECAME THE DUTY OF THE COURT PROMPTLY TO ALLOCATE THE FUND TO ITS
LAWFUL OWNER. 

AN EQUITY COURT HAVING LAWFUL CONTROL OF A FUND, IN WHICH THERE MAY
BE INTERESTS REPRESENTED ONLY BY A DULY AUTHORIZED GOVERNMENTAL AGENCY,
HAS THE POWER AND IS CHARGED WITH THE DUTY OF PROTECTING THOSE
INTERESTS IN DISPOSING OF THE FUND.  FN10  OTHERWISE, RIGHTS (SUCH AS
THE RIGHT OF THIS RAILROAD TO RESTITUTION) MIGHT BE IMPAIRED OR CUT OFF
WHILE AN INTERLOCUTORY INJUNCTION IS IN EFFECT, AS FOR INSTANCE BY
STATUTES OF LIMITATION.  HERE, THE COURT HAD THE POWER AND IT WAS ITS
DUTY SO TO FASHION ITS EQUITABLE DECREE THAT APPELLANT SHOULD NOT BE
THE BENEFICIARY OF UNLAWFUL PAYMENTS, AND TO PREVENT THE DISSIPATION OF
THE RAILROAD'S ASSETS THROUGH UNLAWFUL PREFERENCES. 

SECOND.  APPELLANT FURTHER INSISTS THAT THE COURT HAD NO POWER TO
IMPOSE THE PARTICULAR CONDITIONS HERE, BECAUSE THE RAILROAD WAS ORDERED
TO RETAIN (IN A SPECIAL ACCOUNT) ALLOWANCES PROVIDED FOR IN ITS
PUBLISHED TARIFF.  THIS CONTENTION RESTS ON THE STATUTORY REQUIREMENT
THAT PUBLISHED TARIFFS MUST BE OBSERVED.  FN11  HOWEVER, BEFORE THE
COURT ACTED, THE COMMISSION HAD FOUND AND REPORTED - AND HAD
INCORPORATED ITS FINDINGS AND REPORT IN AN ORDER - THAT THESE
ALLOWANCES PROVIDED IN THE PUBLISHED TARIFF WERE UNLAWFUL PREFERENCES
VIOLATING THE INTERSTATE COMMERCE ACT.  THE COMMISSION HAD ALSO ORDERED
THAT PAYMENT OF THE UNLAWFUL ALLOWANCES CEASE, AND THE RAILROAD HAD
ALREADY - IN OBEDIENCE TO THE COMMISSION'S ORDER - PUBLISHED A NEW
TARIFF ELIMINATING THE ALLOWANCE PROVISION.  BUT, SIX DAYS BEFORE THE
NEW TARIFF WOULD BY ITS TERMS HAVE BECOME EFFECTIVE, APPELLANT SOUGHT
AND OBTAINED THE PRELIMINARY INJUNCTION WHICH DID NOT DESTROY, BUT
TENTATIVELY SUSPENDED THE COMMISSION'S REPORT AND ORDER AND ALSO
TENTATIVELY SUSPENDED THE RAILROAD'S TARIFF CANCELING THE UNLAWFUL
ALLOWANCE.  THE RAILROAD THEN REPUBLISHED THE OLD TARIFF, THUS - UNDER
COURT ORDER - RESTORING THE UNLAWFUL ALLOWANCE.  WHEN THE COURT
SUBSEQUENTLY DISMISSED APPELLANT'S PETITION AND VACATED THE
INTERLOCUTORY INJUNCTION "IN ALL RESPECTS," IT THEREBY FOUND THE
COMMISSION'S REPORT AND ORDER VALID, AND THEY WERE THEN IN EFFECT AS
THOUGH THE INJUNCTION HAD NEVER BEEN GRANTED.  THUS, DURING THE PERIOD
THE INJUNCTION WAS PENDING (SAVE FOR THE FIRST SIX DAYS), THE PUBLISHED
TARIFF HAD CONTAINED THE UNLAWFUL ALLOWANCE SOLELY BECAUSE OF THE
COURT'S INJUNCTION.  TO SUSTAIN THE CONTENTION OF APPELLANT THAT THE
PROVISION FOR ALLOWANCES IN THE PUBLISHED TARIFF LIMITED THE AUTHORITY
OF THE COURT TO PREVENT THEIR PAYMENT WOULD BE TO CLOTHE A PUBLISHED
TARIFF, IN EXISTENCE SOLELY BY REASON OF EQUITABLE INTERVENTION, WITH
AN IMMUNITY FROM EQUITY ITSELF.  THE INTERSTATE COMMERCE ACT GRANTS NO
SUCH IMMUNITY.  FN12 

THIRD.  THE APPELLANT TAKES THE POSITION THAT THE COMMISSION'S
PURPORTED POSTPONEMENT OF ITS COMMAND TO CEASE AND DESIST (EIGHTEEN
MONTHS AFTER THE INTERLOCUTORY INJUNCTION WAS GRANTED) DEPRIVED THE
COURT OF AUTHORITY TO ENFORCE THE CONDITIONS OF ITS INTERLOCUTORY
INJUNCTION.  HOWEVER, SINCE THE COURT HAD EXERCISED JURISDICTION TO
REVIEW AND SUSPEND THE COMMISSION'S REPORT AND ORDER, THE
ADMINISTRATIVE BODY WAS WITHOUT POWER TO ACT INCONSISTENTLY WITH THE
COURT'S JURISDICTION, HAD IT ATTEMPTED TO DO SO.  FN13  BUT, SINCE THE
COMMISSION HAD ALREADY BEEN ENJOINED FROM ENFORCING ITS REPORT AND
ORDER WHEN IT ENTERED ITS POSTPONEMENT, THERE IS NO REASON TO CONSTRUE
THE COMMISSION'S ACTION AS ANYTHING MORE THAN A RECOGNITION OF THE
POSTPONEMENT ACTUALLY EFFECTED BY THE COURT'S INTERLOCUTORY
INJUNCTION. 

IN ADDITION, THERE WERE TWO SEPARATE ASPECTS TO THE ACTION OF THE
COMMISSION.  IT FOUND AN ILLEGAL PRACTICE IN EXISTENCE THAT INVOLVED
UNLAWFUL DISBURSEMENT OF THE RAILROAD'S FUNDS, CONTRARY TO THE PUBLIC
INTEREST.  THE COMMISSION ALSO ENTERED A CEASE AND DESIST ORDER TO
OPERATE PROSPECTIVELY.  EVEN IF THE COMMISSION'S POSTPONEMENT OF THE
CEASE AND DESIST PORTION OF ITS ORDER HAD BEEN OPERATIVE, THE
COMMISSION SPECIFICALLY LEFT IN EFFECT ITS RULING THAT THE ALLOWANCE
WAS UNLAWFUL.  FN14 

THE COMMISSION HAD EXERCISED ITS PRIMARY JURISDICTION AND HAD FOUND
THE ALLOWANCES UNLAWFUL; UPON REVIEW, THE DISTRICT COURT PROPERLY
APPROVED THIS FINDING; THE AMOUNT IN THE SPECIAL ALLOWANCE ACCOUNT WAS
EXACTLY KNOWN AND UNDISPUTED; THIS FUND COULD HAVE BELONGED ONLY TO THE
RAILROAD OR TO APPELLANT; THE RAILROAD WAS IN POSSESSION OF THE FUND
AND IN EQUITY AND GOOD CONSCIENCE WAS ENTITLED TO RETAIN IT.
THEREFORE, THERE WAS NO NECESSITY TO TAKE EVIDENCE, AND THE ACTION OF
THE DISTRICT COURT IN DISPOSING OF THE FUND REQUIRED NO ADDITIONAL
FINDINGS.  THE FINAL DECREE OF THE DISTRICT COURT PROPERLY DIRECTED
THAT THE UNLAWFUL ALLOWANCES SHOULD NOT BE PAID TO APPELLANT, AND
SHOULD BE RETAINED BY THE RAILROAD. 

THE QUESTIONS PRESENTED IN NO. 228 ARE GOVERNED BY OUR CONCLUSIONS
HERE, AND THE JUDGMENTS IN BOTH CASES ARE AFFIRMED. 

FN1  209 I.C.C. 747; 216 I.C.C. 8(NO. 228). 

FN2  "SPOTTING" INVOLVES HANDLING OF CARS BETWEEN THE POINT OF
INTERCHANGE BETWEEN THE RAILROAD AND APPELLANT AND THE POINTS AT WHICH
SUCH CARS ARE UNLOADED OR LOADED IN APPELLANT'S PLANT. 

FN3  SEE, UNITED STATES V. AMERICAN SHEET & TIN PLATE CO., 301 U.S.
402; UNITED STATES V. PAN-AMERICAN PETROLEUM CORP., 304 U.S. 156. 

FN4  28 U.S.C. 46. 

FN5  CF., FORD MOTOR CO. V. NATIONAL LABOR RELATIONS BOARD, 305 U.S.
364. 

FN6  RUSSELL V. FARLEY, 105 U.S. 433, 438; MEYERS V. BLOCK, 120 U.S.
206, 214.    FN7  CENTRAL KENTUCKY CO. V. RAILROAD COMM'N, 290 U.S.
264, 271. 

FN8  ARKADELPHIA MILLING CO. V. ST. LOUIS S.W. RY. CO., 249 U.S. 134,
146; SMITH V. INTERSTATE COMMERCE COMM'N, 245 U.S. 33, 42, 43, 45; CF.
EX PARTE LINCOLN GAS CO., 256 U.S. 512, 517; 49 U.S.C. SECS. 15A, 43. 

FN9  MITCHELL COAL & COKE CO. V. PENNSYLVANIA R. CO., 230 U.S. 247;
ST. LOUIS, B. & M. RY. CO. V. BROWNSVILLE NAVIGATION DIST., 304 U.S.
295; TEXAS & PACIFIC RY. CO. V. ABILENE COTTON OIL CO., 204 U.S. 426. 

FN10  CENTRAL KENTUCKY CO. V. RAILROAD COMM'N, SUPRA.    FN11  49
U.S.C. SEC. 6(7). 

FN12  CF. MERCHANTS WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501,
511. 

FN13  CF. FORD MOTOR CO. V. NATIONAL LABOR RELATIONS BOARD, SUPRA.
IT IS, THEREFORE, IMMATERIAL THAT IN NO. 228 THERE WERE CONSECUTIVE
PURPORTED POSTPONEMENTS OF THE COMMAND TO CEASE AND DESIST, EACH
ENTERED BY THE COMMISSION BEFORE THE EXPIRATION OF THE POSTPONEMENT
IMMEDIATELY PRECEDING. 

FN14  CF. TERMINAL WAREHOUSE V. PENNSYLVANIA R. CO., 297 U.S. 500,
507, 508.  A SUIT AT LAW BASED ON A PAST ALLEGED DISCRIMINATORY
PRACTICE MAY BE STAYED IN ORDER TO PERMIT THE PLAINTIFF TO OBTAIN THE
NECESSARY PRELIMINARY RULING BY THE COMMISSION.  SEE MORRISDALE COAL
CO. V. PENNSYLVANIA R. CO., 230 U.S. 304; MITCHELL COAL & COKE CO. V.
PENNSYLVANIA R. CO., SUPRA; SOUTHERN RY. CO. V. TIFT, 206 U.S. 428. 
..END :










U.S. V. MIDSTATE CO., 306 U.S. 161 


NO. 286.  ARGUED JANUARY 13, 1939.  - DECIDED JANUARY 30, 1939.  -
AFFIRMED. 


THE ELKINS ACT, SEC. 1, AS AMENDED, DENOUNCES, AMONG OTHER OFFENSES,
THE ACTS OF GRANTING OR ACCEPTING ANY REBATE OR CONCESSION WHEREBY
PROPERTY IN INTERSTATE COMMERCE SHALL BE TRANSPORTED AT A RATE LESS
THAN THAT NAMED IN THE CARRIER'S PUBLISHED TARIFFS.  IT PROVIDES THAT
EVERY VIOLATION SHALL BE PROSECUTED IN ANY COURT OF THE UNITED STATES
HAVING JURISDICTION OF CRIMES WITHIN THE DISTRICT IN WHICH SUCH
VIOLATION WAS COMMITTED OR THROUGH WHICH THE TRANSPORTATION MAY HAVE
BEEN CONDUCTED; AND THAT WHENEVER THE OFFENSE IS BEGUN IN ONE
JURISDICTION AND COMPLETED IN ANOTHER IT MAY BE DEALT WITH IN EITHER. 
HELD THAT WHERE THE OFFENSES CHARGED WERE THE GRANTING AND RECEIVING OF
REBATES OR CONCESSIONS IN RESPECT OF TRANSPORTATION WHICH HAD BEEN
COMPLETED AND PAID FOR AT TARIFF RATES BEFORE THE CONCEPTION OF THE
CRIMINAL TRANSACTIONS, VENUE WAS WRONGLY LAID IN A DISTRICT THROUGH
WHICH THE TRANSPORTATION WAS CONDUCTED BUT WHICH WAS NOT THE DISTRICT
IN WHICH THE GRANTING AND RECEIVING WERE ALLEGED TO HAVE OCCURRED.  P.
163. 

UNITED STATES V. MIDSTATE HORTICULTURAL CO. ET AL.* 

*TOGETHER WITH NO. 287, UNITED STATES V. PENNSYLVANIA RAILROAD CO.,
ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
EASTERN DISTRICT OF PENNSYLVANIA. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF PENNSYLVANIA. 

APPEALS UNDER THE CRIMINAL APPEALS ACT FROM JUDGMENTS OF THE DISTRICT
COURT SUSTAINING DEMURRERS TO INDICTMENTS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THESE TWO APPEALS PRESENT FOR REVIEW A SINGLE QUESTION.  AS STATED BY
APPELLANT THE SOLE QUESTION IN EACH APPEAL IS "WHETHER OR NOT THE
INDICTMENT CHARGES THE COMMISSION OF AN OFFENSE AGAINST THE UNITED
STATES IN THE EASTERN DISTRICT OF PENNSYLVANIA, AS IT MUST, IF
APPELLEES ARE TO BE PROSECUTED THEREIN.  CONSTITUTION, ARTICLE 3,

THE DEFENDANT IN NO. 287 WAS INDICTED IN THE EASTERN DISTRICT OF
PENNSYLVANIA CHARGED WITH MAKING UNLAWFUL REBATES ON INTERSTATE
SHIPMENTS.  DEFENDANTS IN NO. 286 WERE CHARGED, BY INDICTMENT IN THE
SAME DISTRICT, WITH RECEIVING THE UNLAWFUL REBATES.  THE DISTRICT COURT
SUSTAINED DEMURRERS TO BOTH INDICTMENTS.  THE GOVERNMENT APPEALED
DIRECTLY TO THIS COURT.  APPELLEES MOVED HERE TO DISMISS THE APPEALS ON
IDENTICAL GROUNDS.  THE MOTIONS TO DISMISS ARE DENIED IN BOTH CASES. 
FN2 

THE RECORD REQUIRES THAT WE TREAT THE INDICTMENTS TO WHICH DEMURRERS
WERE SUSTAINED AS CHARGING THAT REBATES OR CONCESSIONS WERE PAID AND
RECEIVED IN NEW YORK IN 1935 IN CONNECTION WITH THE TRANSPORTATION OF
GOODS IN 1932 FROM CALIFORNIA THROUGH THE EASTERN DISTRICT OF
PENNSYLVANIA TO NEW JERSEY; THAT THE FULL LAWFUL RATE IN ACCORDANCE
WITH PUBLISHED TARIFFS WAS PAID WHEN THE TRANSPORTATION TOOK PLACE; AND
THAT PRIOR TO THE TIME OF THE PAYMENT AND RECEIPT OF THE ALLEGED
REBATES IN NEW YORK IN 1935 THE CARRIER AND SHIPPERS HAD NEITHER AGREED
NOR INTENDED THAT ANY REBATE OR CONCESSION SHOULD BE MADE.  THE
GOVERNMENT CONCEDES THAT THE JURISDICTIONAL PROVISIONS OF THE ELKINS
ACT,  FN3  ON WHICH THE PROSECUTIONS ARE BASED, REQUIRE TRIAL IN THE
DISTRICT IN WHICH A VIOLATION OF THE ACT IS COMMITTED, BUT CONTENDS
THAT THE RECORD DISCLOSES VIOLATIONS ACTUALLY COMMITTED IN THE EASTERN
DISTRICT OF PENNSYLVANIA.  THIS CONTENTION RESTS UPON THE ARGUMENT THAT
THE ELKINS ACT AIMS PRIMARILY TO PREVENT THE RESULT OF OBTAINING
TRANSPORTATION AT LESS THAN THE LAWFUL RATE; THAT PAYMENT AND RECEIPT
OF REBATES IN 1935 SERVED TO ACCOMPLISH SUCH FORBIDDEN RESULTS -
NAMELY, TRANSPORTATION IN 1932 AT LESS THAN THE LAWFUL RATE; AND, SINCE
THE TRANSPORTATION IN 1932 PASSED THROUGH THE EASTERN DISTRICT OF
PENNSYLVANIA, THE OFFENSES WERE COMMITTED AND ARE PUNISHABLE THERE. 

THE STATUTE DEFINES OFFENSES UNDER IT AS FOLLOWS:  "  ...  IT SHALL
BE UNLAWFUL FOR ANY PERSON, PERSONS, OR CORPORATION TO OFFER, GRANT, OR
GIVE, OR TO SOLICIT, ACCEPT, OR RECEIVE ANY REBATE, CONCESSION, OR
DISCRIMINATION IN RESPECT TO THE TRANSPORTATION OF ANY PROPERTY IN
INTERSTATE ... COMMERCE BY ANY COMMON CARRIER  ...  WHEREBY ANY SUCH
PROPERTY SHALL BY ANY DEVICE WHATEVER BE TRANSPORTED AT A LESS RATE
THAN THAT NAMED IN THE TARIFFS PUBLISHED AND FILED BY SUCH CARRIER, ...
"  AS TO VENUE THE STATUTE PROVIDES:  "EVERY VIOLATION OF THIS SECTION
SHALL BE PROSECUTED IN ANY COURT OF THE UNITED STATES HAVING
JURISDICTION OF CRIMES WITHIN THE DISTRICT IN WHICH SUCH VIOLATION WAS
COMMITTED, OR THROUGH WHICH THE TRANSPORTATION MAY HAVE BEEN CONDUCTED;
AND WHENEVER THE OFFENSE IS BEGUN IN ONE JURISDICTION AND COMPLETED IN
ANOTHER IT MAY BE DEALT WITH, INQUIRED OF, TRIED, DETERMINED, AND
PUNISHED IN EITHER JURISDICTION IN THE SAME MANNER AS IF THE OFFENSE
HAD BEEN ACTUALLY AND WHOLLY COMMITTED THEREIN." 

WE NEED NOT DETERMINE WHETHER CONGRESS INTENDED - BY PROVIDING FOR
THE TRIAL OF CRIMES "WITHIN THE DISTRICT  ...  THROUGH WHICH THE
TRANSPORTATION MAY HAVE BEEN CONDUCTED" - TO CONFER JURISDICTION IN ANY
DISTRICT WHEREIN A VIOLATION WAS NOT COMMITTED.  THE GOVERNMENT ONLY
INSISTS THAT THE INDICTMENTS HERE DISCLOSE OFFENSES COMMITTED IN THE
EASTERN DISTRICT OF PENNSYLVANIA, AND URGES THAT THE PROVISION FOR
TRIAL IN ANY DISTRICT THROUGH WHICH ILLEGAL TRANSPORTATION IS CONDUCTED
IS WITHOUT MEANING UNLESS APPLICABLE TO THESE PROSECUTIONS. 

BUT THERE ARE MANY OFFENSES IN THE ACT OF WHICH THIS PROVISION IS A
PART TO WHICH THE PROVISION IS CLEARLY APPLICABLE.  AN ILLUSTRATION IS
THAT PROVIDED IN THE CASE OF ARMOUR PACKING CO. V. UNITED STATES, 209
U.S. 56.  THERE AN UNLAWFUL CONCESSION WAS GIVEN IN THE STATE OF KANSAS
BEFORE INTERSTATE SHIPMENT WAS MADE.  TRANSPORTATION PASSED THROUGH THE
STATE OF MISSOURI.  THE RECIPIENT OF THE CONCESSION WAS TRIED IN
MISSOURI.  IT WAS DECIDED THAT THE TRANSACTION CONSTITUTED A CONTINUING
OFFENSE BEGINNING IN KANSAS, AND THAT THE DEFENDANT COULD BE TRIED IN
ANY DISTRICT THROUGH WHICH THE UNLAWFUL TRANSPORTATION TOOK PLACE.  THE
COURT SAID (AT P. 76):  "WE THINK THE DOCTRINE (OF CONTINUING OFFENSES)
...  APPLIES IN THE PRESENT CASE, FOR TRANSPORTATION IS AN ESSENTIAL
ELEMENT OF THE OFFENSE, AND, AS WE HAVE SAID, TRANSPORTATION EQUALLY
TAKES PLACE OVER ANY AND ALL OF THE TRAVELED ROUTE, AND DURING
TRANSPORTATION THE CRIME IS BEING CONSTANTLY COMMITTED."  THE SECTION
OF THE ELKINS ACT UNDER WHICH THE PRESENT INDICTMENTS WERE DRAWN
DESCRIBES OTHER OFFENSES AND, IN ADDITION, MAKES IT A MISDEMEANOR FOR A
CARRIER TO VIOLATE ANY OF THE NUMEROUS CRIMINAL PROVISIONS OF THE
INTERSTATE COMMERCE ACT.  CONGRESS EVIDENTLY INTENDED TO MAKE IT CLEAR
THAT AS TO ANY OF THE MANY OFFENSES IN WHICH "DURING TRANSPORTATION THE
CRIME IS BEING CONSTANTLY COMMITTED" PROSECUTION COULD BE HAD IN ANY
DISTRICT THROUGH WHICH THE UNLAWFUL TRANSPORTATION MOVES. 

WE DO NOT BELIEVE CONGRESS INTENDED THAT SUBSEQUENT CONDUCT OR EVENTS
SHOULD STAMP CRIMINALITY UPON AN ACT THAT WAS LAWFUL, AND WHOLLY
UNRELATED TO ANY UNLAWFUL PLAN OR PURPOSE, WHEN DONE.  HERE, THE FULL
LAWFUL RATE WAS PAID FOR THE TRANSPORTATION INVOLVED.  THE LAWFUL
TRANSPORTATION THROUGH THE EASTERN DISTRICT OF PENNSYLVANIA WAS NOT
INFECTED BY RELATION TO ANY UNLAWFUL AGREEMENT, PURPOSE OR INTENT AT
THE TIME IT OCCURRED.  THE RECORD SHOWS NO OFFENSE THAT BEGAN IN 1932
AND CONTINUED UNTIL 1935.  AS WAS CLEARLY SET FORTH BY THE CIRCUIT
COURT OF APPEALS IN THE ARMOUR PACKING CO. CASE:  FN4  "A CONTINUING
OFFENSE IS A CONTINUOUS, UNLAWFUL ACT OR SERIES OF ACTS SET ON FOOT BY
A SINGLE IMPULSE AND OPERATED BY AN UNINTERMITTENT FORCE, HOWEVER LONG
A TIME IT MAY OCCUPY.  WHERE SUCH AN ACT OR SERIES OF ACTS RUNS THROUGH
SEVERAL JURISDICTIONS, THE OFFENSE IS COMMITTED AND COGNIZABLE IN
EACH.  ...  THE TRANSPORTATION OF THE GOODS IN THIS CASE INTO AND
THROUGH THE WESTERN DISTRICT OF MISSOURI, AT THE ILLEGAL THROUGH RATE,
WAS THE CONTINUING OPERATION AND EFFECT IN THAT DISTRICT OF ITS PRIMARY
CAUSE, THE RECEIPT OF THE CONCESSION AND THE DELIVERY OF THE OIL BY THE
SHIPPER TO THE CARRIER THEREUNDER FOR TRANSPORTATION IN FOREIGN
COMMERCE, AND EVEN IF THE SHIPPER'S OFFENSE WAS COMPLETE IN KANSAS, IT
MAY HAVE BEEN COMMITTED IN MISSOURI ALSO, WHERE ITS OPERATION CONTINUED
AND TOOK EFFECT." 

THE LEGAL TRANSPORTATION OF GOODS AT A LAWFUL RATE THROUGH THE
EASTERN DISTRICT OF PENNSYLVANIA WITHOUT INTENT, PURPOSE, OR AGREEMENT
TO COMMIT ANY PART OF A CRIME DID NOT GIVE THE DISTRICT COURT OF THE
EASTERN DISTRICT OF PENNSYLVANIA JURISDICTION TO TRY THESE DEFENDANTS
UNDER THE ELKINS ACT.  ON THIS RECORD NO VIOLATION OF THE ELKINS ACT
WAS BEGUN, CONTINUED OR BROUGHT ABOUT FN5  IN THAT DISTRICT.  THE
DEMURRERS WERE PROPERLY SUSTAINED AND THE JUDGMENTS ARE AFFIRMED. 

FN1  ARTICLE 3, SEC. 2, CLAUSE 3 OF THE CONSTITUTION PROVIDES:  "THE
TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY JURY;
AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID CRIMES SHALL
HAVE BEEN COMMITTED; BUT WHEN NOT COMMITTED WITHIN ANY STATE, THE TRIAL
SHALL BE AT SUCH PLACE OR PLACES AS THE CONGRESS MAY BY LAW HAVE
DIRECTED."  AMENDMENT 6 OF THE CONSTITUTION SO FAR AS PERTINENT
PROVIDES:  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE
RIGHT TO A SPEEDY AND PUBLIC TRIAL BY AN IMPARTIAL JURY OF THE STATE
AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH
DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, ...  " 

FN2  THE FIRST GROUND OF THE MOTIONS TO DISMISS IS THAT APPEAL WAS
NOT TAKEN "WITHIN THIRTY DAYS AFTER THE DECISION OR JUDGMENT" AS
REQUIRED BY 18 U.S.C., SEC. 682.  THE COURT BELOW WROTE AN OPINION IN
WHICH IT STATED "THE DEMURRERS ARE SUSTAINED," AND FILED THE OPINION
JUNE 16, 1938.  BUT IN ACCORDANCE WITH THE COURT'S PRACTICE, FINAL
ORDER WAS NOT ENTERED UNTIL JULY 2, 1938.  IN THAT ORDER THE COURT
SUSTAINED THE DEMURRERS AND ORDERED DEFENDANTS DISCHARGED.  THE
GOVERNMENT PETITIONED FOR APPEAL JULY 20, 1938, WITHIN EIGHTEEN DAYS
AFTER THE FINAL ORDER WAS ENTERED, BUT MORE THAN THIRTY DAYS AFTER THE
WRITTEN OPINION HAD BEEN FILED.  THE APPEALS WERE FROM THE JUDGMENTS
AND ORDERS OF JULY 2, AND NOT THE PREVIOUS WRITTEN OPINION.  THE SECOND
GROUND OF THE MOTIONS TO DISMISS IS THAT THE GOVERNMENT DID NOT HAVE A
RIGHT OF DIRECT APPEAL TO THIS COURT GRANTED BY 18 U.S.C., SEC. 682,
WHICH AUTHORIZES SUCH AN APPEAL WHERE JUDGMENT SUSTAINING A DEMURRER
"IS BASED UPON THE INVALIDITY OR CONSTRUCTION OF THE STATUTE UPON WHICH
THE INDICTMENT IS FOUNDED."  THE STATUTE UNDER WHICH THE INDICTMENTS
WERE RETURNED PROVIDES EXPRESSLY FOR THE JURISDICTION OVER OFFENSES
CREATED BY IT, AND THE RECORD CLEARLY DISCLOSES THAT THE RULINGS ON
DEMURRERS INVOLVED A CONSTRUCTION OF THE STATUTE. 

FN3  49 U.S.C., SEC. 41(1), 34 STAT. 587. 

FN4  153 F. 1, 5, 6.  CF., UNITED STATES V. LOMBARDO, 241 U.S. 73,
77. 

FN5  CF., UNITED STATES V. HOLTE, 236 U.S. 140, 144. 
..END :


















SOUTHERN PAC. CO. V. GALLAGHER, 306 U.S. 167 


NO. 212.  ARGUED DECEMBER 12, 1938.  - DECIDED JANUARY 30, 1939.  - 23
F.SUPP.  193, AFFIRMED. 


1.  CALIFORNIA TAX ON STORAGE AND USE - I.E., UPON RETENTION AND
EXERCISE OF OWNERSHIP - MAY BE APPLIED CONSISTENTLY WITH THE COMMERCE
CLAUSE AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO AN
INTERSTATE RAILROAD COMPANY IN RESPECT OF SUPPLIES PURCHASED OUTSIDE OF
THE STATE AND BROUGHT IN FOR PROMPT APPLICATION IN THE OPERATION OF ITS
ROAD, SUCH AS OFFICE SUPPLIES, AND RAILS, EQUIPMENT, MACHINERY, TOOLS,
ETC., USED IN REPLACEMENTS, REPAIRS AND EXTENSIONS, AND INCLUDING
ARTICLES ORDERED OUT OF THE STATE ON SPECIFICATIONS SUITABLE ONLY FOR
USE IN THE TRANSPORTATION FACILITIES AND INSTALLED IMMEDIATELY UPON
ARRIVAL AT THE CALIFORNIA DESTINATION.  P. 172. 

2.  THERE IS AN INTERVAL AFTER THE ARTICLES HAVE REACHED THE END OF
THEIR INTERSTATE MOVEMENT AND BEFORE THEIR CONSUMPTION IN INTERSTATE
OPERATION HAS BEGUN WHEN THE "USE AND STORAGE" ARE SUBJECT TO LOCAL
TAXATION.  HELSON & RANDOLPH V. KENTUCKY, 279 U.S. 245, DISTINGUISHED. 
P. 176. 

SOUTHERN PACIFIC CO. V. GALLAGHER ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

APPEAL FROM A DECREE OF A THREE-JUDGE DISTRICT COURT REFUSING A
PERMANENT INJUNCTION AND DISMISSING THE BILL IN A SUIT TO RESTRAIN
ENFORCEMENT OF THE CALIFORNIA USE TAX.  THE COURT BELOW HAD AT FIRST
GRANTED AN INTERLOCUTORY INJUNCTION, 20 F.SUPP.  940. 

A STATE EXCISE TAX IMPOSED DIRECTLY UPON THE PRIVILEGE OF USING
INSTRUMENTALITIES IN CARRYING ON AND CONDUCTING INTERSTATE AND FOREIGN
COMMERCE BY A RAILROAD COMMON CARRIER, IS A DIRECT BURDEN ON SUCH
COMMERCE, CONTRARY TO THE COMMERCE CLAUSE.  BINGAMAN V. GOLDEN EAGLE
LINES, 297 U.S. 626; HELSON & RANDOLPH V. KENTUCKY, 279 U.S. 245; EAST
OHIO GAS CO. V. TAX COMMISSION, 283 U.S. 465; OZARK PIPE LINE V.
MONIER, 266 U.S. 555; OKLAHOMA V. WELLS, FARGO & CO., 223 U.S. 298;
GALVESTON, H. & S. A. RY. CO. V. TEXAS, 210 U.S. 217; PHILADELPHIA S.S.
CO. V. PENNSYLVANIA, 122 U.S. 326; FARGO V. MICHIGAN, 121 U.S. 230;
GLOUCESTER FERRY CO. V. PENNSYLVANIA, 114 U.S. 214; U.S. AIRWAYS V.
SHAW, 43 F.2D 148; MID-CONTINENT AIR EXPRESS CORP. V. LUJAN, 47 F.2D
266; PUGET SOUND CO. V. TAX COMMISSION, 302 U.S. 90; MINOT V.
PHILADELPHIA, W. & B.R. CO., 17 FED. CAS. 458; FED. CAS. NO. 9645; 18
WALL.  206; PULLMAN SOUTHERN CAR CO. V. NOLAN, 22 F. 276, 280, 281; 117
U.S. 34, 46; PACIFIC TELEPHONE & T. CO. V. HENNEFORD, 81 P.2D 786. 

A STATE EXCISE TAX CAN NOT VALIDLY BE APPLIED INDISCRIMINATELY AND
WITHOUT APPORTIONMENT TO AN INSTRUMENTALITY COMMON TO INTERSTATE AND
INTRASTATE COMMERCE.  COONEY V. MOUNTAIN STATES TEL. CO., 294 U.S. 384;
ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 314; COLORADO V. UNITED STATES,
271 U.S. 153; RAILROAD COMMISSION V. CHICAGO, B. & Q.R. CO., 257 U.S.
563. 

THE CASE AT BAR IS DISTINGUISHED BY ITS FACTS FROM THE CASES IN WHICH
THE PRIVILEGES TAXED WERE NOT ACTS OF CONDUCTING INTERSTATE
TRANSPORTATION.  DISTINGUISHING EDELMAN V. BOEING AIR TRANSPORT, 289
U.S. 249; 61 F.2D 319; NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288
U.S. 249; COVERDALE V. PIPE LINE CO., 303 U.S. 604. 

IT WAS SAID IN THE OPINION IN THE COVERDALE CASE THAT A NARROW
DISTINCTION OF FACTS EXISTS BETWEEN THE TAX HELD INVALID IN THE HELSON
CASE AND THE TAX CONSIDERED VALID IN THE NASHVILLE CASE.  THAT NARROW
DISTINCTION OF FACTS IS THE DISTINCTION WHICH EXISTS BETWEEN THE
TAXATION OF AN EVENT SEPARABLE AND COMPLETED BEFORE USE IN INTERSTATE
COMMERCE BEGINS AND THE TAXATION OF AN EVENT WHICH IS AN INSEPARABLE
PART AND ACT OF CARRYING ON INTERSTATE COMMERCE. 

THE UNCONSTITUTIONALITY OF STATE EXCISE TAXATION BURDENING INTERSTATE
COMMERCE IS NOT AVOIDED BY IMPOSING STATE TAXES AT AN EQUAL RATE ON
INTRASTATE COMMERCE OR OTHER INTRASTATE PRIVILEGES. 

WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, CITED BY THE
LOWER COURT, CITES MANY CASES AND ILLUSTRATIONS EXEMPLIFYING THE RULE
THAT "EVEN INTERSTATE BUSINESS MUST PAY ITS OWN WAY," BUT NOT A SINGLE
ONE OF THEM DEALS WITH A TAX UPON ACTION SANCTIONED AND PROTECTED BY
THE COMMERCE CLAUSE WHERE THE MANNER OF IMPOSITION OF THE TAX HAS BEEN
DIRECT.  THEY DO NOT MODIFY OR CRITICIZE THE LONG ESTABLISHED RULE THAT
WHERE THE TAX IS DIRECTLY IMPOSED ON AN INTERSTATE PRIVILEGE THE BURDEN
IS IPSO FACTO DIRECT AND THEREFORE UNCONSTITUTIONAL.  MCCULLOCH V.
MARYLAND, 4 WHEAT.  316, 429; JAMES V. DRAVO CONTRACTING CO., 302 U.S.
134; GALVESTON, H. & S.A. RY. CO. V. TEXAS, 210 U.S. 217, 227. 

IT CAN BE SAID OF THE TAX IN QUESTION IN THE CASE AT BAR, AMOUNTING TO
MORE THAN $300,000, AND CONTINUING TO ACCRUE IN LARGE AMOUNTS, AS WAS
SAID BY THIS COURT IN U.S. GLUE CO. V. OAK CREEK, 247 U.S. 321, THAT
"CONCEIVABLY IT MAY BE SUFFICIENT TO MAKE THE DIFFERENCE BETWEEN PROFIT
AND LOSS, OR TO SO DIMINISH THE PROFIT AS TO IMPEDE OR DISCOURAGE THE
CONDUCT OF THE COMMERCE."  HELVERING V. MOUNTAIN PRODUCERS CORP., 303
U.S. 376, DISTINGUISHED.  SEE PACIFIC TELEPHONE & T. CO. V. HENNEFORD,
81 P.2D 786. 

THE TAX IS DISCRIMINATORY IN ITS OPERATION AND EFFECT, AND IF THE
DECISION OF THE LOWER COURT IS SUSTAINED THE WAY WILL BE OPEN FOR
SERIOUS DISCRIMINATORY ABUSES IN STATE AND MUNICIPAL TAXATION OF THE
INSTRUMENTALITIES OF INTERSTATE COMMERCE. 

THE TAXATION OF THE USE OF PROPERTY, INSEPARABLY USED BY A RAILROAD
INTERSTATE CARRIER IN THE TRANSACTION OF ITS TRANSPORTATION BUSINESS,
BOTH WITHIN AND WITHOUT THE STATE, WITHOUT APPORTIONMENT, WOULD BE
EXTRATERRITORIAL IN ITS OPERATION AND EFFECT AND IN VIOLATION OF THE
DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE CALIFORNIA USE TAX ACT OF 1935  FN1  IS ASSAILED AS VIOLATIVE OF
THE COMMERCE CLAUSE AND THE FOURTEENTH AMENDMENT, WHEN IMPOSED UPON
TANGIBLE PERSONAL PROPERTY, BOUGHT OUTSIDE OF THE STATE BY THE SOUTHERN
PACIFIC COMPANY, AN INTERSTATE RAILROAD, AND INSTALLED ON IMPORTATION,
OR KEPT AVAILABLE FOR USE, AS A PART OF ITS TRANSPORTATION FACILITIES. 

THE ATTACK COMES BY MEANS OF A BILL OF THE SOUTHERN PACIFIC COMPANY
SEEKING, BEFORE A THREE-JUDGE DISTRICT COURT,  FN2  AN INTERLOCUTORY
AND FINAL INJUNCTION AGAINST THE STATE BOARD OF EQUALIZATION OF
CALIFORNIA, ITS MEMBERS AND THE ATTORNEY GENERAL OF THE STATE, TO
RESTRAIN THEM FROM ENFORCING THE USE TAX ACT.  FN3  THE TRIAL COURT
GRANTED AN INTERLOCUTORY INJUNCTION AND DENIED A MOTION TO DISMISS N4
BUT LATER REFUSED A PERMANENT INJUNCTION AND SUSTAINED THE MOTION TO
DISMISS.  FN5  THE CASE COMES HERE BY APPEAL.  FN6 

THE USE TAX ACT IS COMPLEMENTAL TO THE CALIFORNIA RETAIL SALES TAX
ACT OF 1933.  FN7  THE LATTER LEVIES A TAX UPON THE GROSS RECEIPTS OF
CALIFORNIA RETAILERS FROM SALES OF TANGIBLE PERSONAL PROPERTY; THE
FORMER  FN8  IMPOSES AN EXCISE ON THE CONSUMER AT THE SAME RATE FOR THE
STORAGE, USE OR OTHER CONSUMPTION IN THE STATE OF SUCH PROPERTY WHEN
PURCHASED FROM ANY RETAILER.  AS PROPERTY COVERED BY THE SALES TAX IS
EXEMPT UNDER THE USE TAX, ALL TANGIBLE PERSONALTY SOLD OR UTILIZED IN
CALIFORNIA IS TAXED ONCE FOR THE SUPPORT OF THE STATE GOVERNMENT. 
DEFINITIONS IN THE USE TAX ACT OF TAXPAYER, RETAILER, STORAGE AND USE
ARE DESIGNED TO MAKE THE COVERAGE COMPLETE.  A RETAILER IS "EVERY
PERSON, ENGAGED IN THE BUSINESS OF MAKING SALES FOR STORAGE, USE OR
OTHER CONSUMPTION"; USE IS THE EXERCISE OF ANY RIGHT OR POWER INCIDENT
TO OWNERSHIP, EXCEPT SALE IN THE REGULAR COURSE OF BUSINESS; STORAGE IS
ANY "KEEPING OR RETENTION" WITH A SIMILAR EXEMPTION; AND A TAXPAYER
INCLUDES EVERYONE "STORING, USING OR OTHERWISE CONSUMING" THE PROPERTY
SUBJECT TO THE USE TAX.  FN9 

THE PRINCIPLE OF THE USE TAX AS APPLIED TO PROPERTY BROUGHT INTO THE
STATE AFTER ITS RETAIL PURCHASE FOR INTRASTATE USE HAS BEEN UPHELD IN
HENNEFORD V. SILAS MASON CO.,  FN10  AGAINST THE CHARGE THAT IT WAS A
TAX UPON THE OPERATIONS OF INTERSTATE COMMERCE OR A TAX UPON A FOREIGN
SALE, VIOLATIVE OF THE FOURTEENTH AMENDMENT.  UNDER THE WASHINGTON
STATUTE, THERE CONSIDERED, DISCRIMINATION AGAINST INTERSTATE COMMERCE,
ARISING FROM A SECOND EXACTION FOR USE AFTER A FOREIGN TAX ON SALE,
COULD NOT EXIST AS PROVISION WAS MADE FOR A CREDIT AGAINST THE LOCAL
TAX OF ANY SUCH FOREIGN LEVY.  NO SUCH PROBLEM ARISES HERE BY EVIDENCE,
FINDING OR ASSIGNMENT OF ERROR  FN11  EVEN THOUGH THE CALIFORNIA ACT
DOES NOT HAVE THIS PROVISION.  IT WILL BE TIME ENOUGH TO RESOLVE THAT
ARGUMENT "WHEN A TAXPAYER PAYING IN THE STATE OF ORIGIN IS COMPELLED TO
PAY AGAIN IN THE STATE OF DESTINATION."  FN12  A DISCRIMINATION AGAINST
GOODS OF OUT-OF-STATE ORIGIN ON THE FACE OF THE SALES AND USE ACTS IS
SUGGESTED BECAUSE THE LOCAL RETAILER MAY ABSORB THE SALES TAX WHILE THE
CONSUMER OF AN IMPORTED ARTICLE MUST PAY THE USE TAX.  FN13  BUT THIS
IS NOT A DISCRIMINATION IN THE LAW.  CALIFORNIA'S EXACTION FOR THE
DISTRIBUTION OF TANGIBLE PERSONAL PROPERTY IS THE SAME, WHETHER
PURCHASED WITHIN OR WITHOUT HER BORDERS OR WHETHER PAID BY THE RETAILER
OR CONSUMER.  THERE IS AN EQUAL CHARGE AGAINST WHAT IS USED, WHATEVER
ITS SOURCE.  IN THIS CASE WE HAVE A DISTINCTLY DIFFERENT APPLICATION OF
A USE TAX.  THE TAX IS NOT SOUGHT FROM PERSONAL PROPERTY USED IN
TRANSACTIONS ENTIRELY DISASSOCIATED FROM ANY AGENCY CONNECTED WITH
INTERSTATE TRANSPORTATION, AS BUILDERS' SUPPLIES FOR LOCAL WORK IN THE
SILAS MASON CASE, BUT FROM TANGIBLE PERSONALTY PURCHASED OUT OF THE
STATE FOR IMMEDIATE OR SUBSEQUENT INSTALLATION IN AN INTERSTATE RAILWAY
FACILITY. 

THE APPELLANT, THE SOUTHERN PACIFIC COMPANY, A KENTUCKY CORPORATION,
HANDLES INTRASTATE, INTERSTATE AND FOREIGN COMMERCE OVER ITS RAILROAD
SYSTEM WHICH TRAVERSES A NUMBER OF STATES AND CONNECTS WITH THE LINES
OF CARRIERS COVERING THE CONTINENT.  THE FINDINGS AND STIPULATION OF
FACTS SHOW CONTINUAL EXTRASTATE PURCHASES OF TANGIBLE PERSONALTY FOR
THE OPERATION OF THE ROAD; RAILS, EQUIPMENT, MACHINERY, TOOLS AND
OFFICE SUPPLIES.  SOME OF THE PURCHASES ARE USED IN THE GENERAL OFFICES
OF THE CORPORATION, LOCATED IN CALIFORNIA, FOR THE SUPERVISION OF THE
WIDE-FLUNG ACTIVITIES; OTHERS ARE FOR MATERIAL KEPT IN READINESS AS A
STAND-BY SUPPLY TO REPLACE OR REPAIR EQUIPMENT DAMAGED, DESTROYED OR
WORN OUT IN THE OPERATION OF THE ROAD; AND STILL OTHERS ARE TO MAKE
IMPROVEMENTS, REPLACEMENTS OR EXTENSIONS PURSUANT TO PREVIOUSLY
DETERMINED PLANS AND SPECIFICATIONS.  FEW, IF ANY, OF THE SUPPLIES ARE
STORED FOR LONG TERM NEEDS.  STORAGE IS MERELY INCIDENTAL TO PROTECTION
UNTIL USE, AS OFFICE SUPPLIES IN A CLOSET OR AN EXTRA FROG AT A SECTION
TOOL HOUSE.  FOR CONSTRUCTION OR RECONSTRUCTION UPON A LARGE SCALE,
SPECIAL ORDERS ARE GIVEN AND ARRANGEMENTS MADE, SO THAT THE MATERIAL IS
FABRICATED FOR A PARTICULAR USE IN THE TRANSPORTATION FACILITIES,
SHIPPED TO ITS CALIFORNIA DESTINATION AND INSTALLED UPON ARRIVAL.  TO
AVOID DELAY AND COST THE MOVEMENT FROM LOADING TO FINAL PLACEMENT IS AS
NEARLY CONTINUOUS AS MANAGERIAL EFFICIENCY CAN CONTRIVE.  WHILE SOME
ARTICLES ARE CAPABLE OF GENERAL USE, THE MAJOR PURCHASES OF RAILS,
REPAIR PARTS AND SUPPLIES FOR THE MAINTENANCE AND OPERATION OF THE
SYSTEM ARE ADAPTED ONLY TO RAILROAD USE.  THE PURCHASES ARE PAID FOR
OUT OF RAILROAD OPERATING CAPITAL AND MOVE ON COMPANY MATERIAL
WAYBILLS, WITHOUT TRANSPORTATION CHARGE.  ALL PURCHASES MAY BE SAID TO
BE DEDICATED TO CONSUMPTION IN THE INTERSTATE TRANSPORTATION BUSINESS
OF APPELLANT.  NO NEW ROLLING STOCK IS INVOLVED.  SUBSEQUENT TO
REPAIRING AND RECONDITIONING, ROLLING STOCK MOVES AGAIN IN INTERSTATE
TRANSPORTATION, AS DO CARS AFTER BEING STOCKED WITH SUPPLIES.  THE
CALIFORNIA TAX ON STORAGE OR USE, IT IS SAID, CANNOT APPLY TO THESE
ARTICLES, AS SUCH A TAX WOULD BE AN UNCONSTITUTIONAL BURDEN UPON THE
FACILITIES OF INTERSTATE COMMERCE, OF WHICH THE ARTICLES ARE A PART. 

THERE IS AGREEMENT UPON THE PRINCIPLE INVOLVED.  APPELLANT STATES
THAT AN EXCISE TAX IMPOSED DIRECTLY UPON THE PRIVILEGE OF USING
INSTRUMENTALITIES IN CARRYING ON INTERSTATE TRANSPORTATION IS A DIRECT
AND UNCONSTITUTIONAL BURDEN ON COMMERCE.  APPELLEES DO NOT DISPUTE THE
PREMISE BUT CONTEND THAT THE TAX IS ON INTRASTATE STORAGE AND USE. 
THEY POINT TO THE DEFINITION OF USE AS THE EXERCISE OF A RIGHT OF
OWNERSHIP, AND OF STORAGE AS ANY KEEPING OR RETENTION.  BY THE
DEFINITIVE TERMS THEMSELVES, IT IS URGED, THE TAXABLE EVENTS ARE
RETENTION AND INSTALLATION, NOT SUCH STORAGE AS WAREHOUSING CONNOTES,
OR USE IN THE SENSE OF CONSUMPTION OR OPERATION.  IF WE CONCLUDE
RETENTION AND INSTALLATION, UNDER THE CIRCUMSTANCES HERE DEVELOPED, ARE
INTRASTATE TAXABLE EVENTS, VIEWED APART FROM COMMERCE, WE MUST STILL
INQUIRE WHETHER TAXES LAID UPON THEM ARE NOT, IN EFFECT, UPON COMMERCE,
AND FORBIDDEN.  FN14 

TWO LINES OF AUTHORITY AID IN CONSIDERING THE EFFECT OF THIS TAX ON
COMMERCE.  THE FIRST MAKES IT QUITE CLEAR THAT A STATE TAX UPON THE
PRIVILEGE OF OPERATING IN, OR UPON CARRYING ON, INTERSTATE COMMERCE IS
INVALID.  STATES CANNOT TAX INTERSTATE TELEGRAPH MESSAGES,  FN15  OR
FREIGHT SHIPMENTS N16.  A LICENSE TAX ON SALES BY SAMPLES BURDENS ONE
SELLING ONLY GOODS FROM OTHER STATES.  FN17  A TAX ACT AS APPLIED TO
THE BUSINESS OF INTERSTATE COMMUNICATION  FN18  IS UNCONSTITUTIONAL. 
WHERE A SIMILAR LEVY BY OTHER STATES MAY BE IMPOSED, WITH CONSEQUENT
MULTIPLICITY OF EXACTION ON COMMERCE FOR THE SAME TAXABLE EVENT, LOCAL
TAX OF A PRIVILEGE, MEASURED BY TOTAL GROSS RECEIPTS FROM INTERSTATE
TRANSACTIONS, IS CONSIDERED IDENTICAL WITH AN EXACTION ON THE COMMERCE
ITSELF.  FN19  THIS RULE IS APPLICABLE TO A TAX ON GROSS RECEIPTS FROM
INTERSTATE TRANSPORTATION; FN20  AN OCCUPATION TAX MEASURED BY GROSS
RECEIPTS FROM RADIO BROADCASTING N21, AND A GENERAL TAX AT SPECIFIED
RATES UPON THE GROSS INCOME OF EVERY RESIDENT, CONSTRUED AS "A TAX UPON
GROSS RECEIPTS FROM COMMERCE"  FN22  "WITHOUT APPORTIONMENT."  N23  THE
MEASUREMENT OF A TAX BY GROSS RECEIPTS WHERE IT CANNOT RESULT IN A
MULTIPLICATION OF THE LEVIES IT UPHELD.  FN24 

APPELLANT SELECTS FROM THIS LINE THE HELSON CASE FN25  AS
DETERMINATIVE OF THE CONTENTION THAT A TAX ON USE OF SUPPLIES OR
EQUIPMENT IS A TAX ON THE COMMERCE.  A STATE TAX OF THREE CENTS PER
GALLON WAS IMPOSED ON ALL GASOLINE "SOLD AT WHOLESALE."  THIS PHRASE
WAS DEFINED TO INCLUDE GASOLINE BOUGHT OUT OF THE STATE AND USED WITHIN
THE STATE.  THERE WAS NO DEFINITION OF THE WORD USE OR USED.  THE
TAXPAYERS OPERATED AN INTERSTATE FERRY, PURCHASED GASOLINE IN OHIO AND
USED THAT PORTION SOUGHT TO BE TAXED IN PROPELLING THEIR CRAFT IN THE
TERRITORIAL WATERS OF KENTUCKY.  THE COURT CONSIDERED THE TAX ON THE
CONSUMPTION OF THE GAS THE SAME AS A TAX ON THE OPERATION OF THE FERRY
BOAT AND THEREFORE INVALID UNDER THE RULE DISCUSSED IN THE PRECEDING
PARAGRAPH.    THE SECOND LINE OF AUTHORITY SUPPORTS THE VIEW THAT USE
AND STORAGE AS DEFINED IN THE CALIFORNIA ACT ARE TAXABLE INTRASTATE
EVENTS, SEPARATE AND APART FROM INTERSTATE COMMERCE.  A RECENT
DISCUSSION OF THE TOPIC SETS OUT THE PRECEDENTS IN SUPPORT OF A RULING
THAT A TAX UPON THE PRODUCTION OF POWER BY THE USE OF WHICH COMPRESSORS
DROVE NATURAL GAS IN INTERSTATE COMMERCE IS VALID.  SUCH PRODUCTION IS
A TAXABLE EVENT DISTINCT FROM ITS CONSUMPTION IN COMMERCE.  FN26
PARTICULAR ATTENTION IS CALLED BY THE STATE TO THE WALLACE CASE.  FN27
THERE THE TAX WAS ON "SELLING OR STORING OR DISTRIBUTING GASOLINE."  IT
BECAME DUE ON WITHDRAWAL FROM STORAGE.  THE TAX WAS HELD APPLICABLE TO
GASOLINE, PURCHASED OUT OF THE STATE AND STORED IN THE STATE, "WHEN ALL
IS WITHDRAWN AND USED  ...  AS A SOURCE OF MOTIVE POWER IN INTERSTATE
RAILWAY OPERATION" AND VALID AGAINST THE OBJECTION THAT "IT IS IN
EFFECT A TAX UPON THE USE" IN INTERSTATE COMMERCE.  FN28  THE
INVALIDITY OF SUCH A TAX ARISES FROM A LEVY ON COMMERCE ITSELF OR ITS
GROSS RECEIPTS, NOT UPON EVENTS PRIOR TO THE COMMERCE.  FN29 

THE PRINCIPLE ILLUSTRATED BY THE HELSON CASE FORBIDS A TAX UPON
COMMERCE OR CONSUMPTION IN COMMERCE.  THE WALLACE CASE, AND PRECEDENTS
ANALOGOUS TO IT, PERMIT STATE TAXATION OF EVENTS PRELIMINARY TO
INTERSTATE COMMERCE.  THE VALIDITY OF ANY APPLICATION OF A TAXING ACT
DEPENDS UPON A CLASSIFICATION OF THE FACTS IN THE LIGHT OF THESE
THEORIES.  IN THE PRESENT CASE SOME OF THE ARTICLES WERE ORDERED OUT OF
THE STATE UNDER SPECIFICATION SUITABLE ONLY FOR UTILIZATION IN THE
TRANSPORTATION FACILITIES AND INSTALLED IMMEDIATELY ON ARRIVAL AT THE
CALIFORNIA DESTINATION.  IF ARTICLES SO HANDLED ARE DEEMED TO HAVE
REACHED THE END OF THEIR INTERSTATE TRANSIT UPON "USE OR STORAGE," NO
FURTHER INQUIRY IS NECESSARY AS TO THE REST OF THE ARTICLES WHICH ARE
SUBJECTED TO A RETENTION, BY COMPARISON, FARTHER REMOVED FROM
INTERSTATE COMMERCE.  WE THINK THERE WAS A TAXABLE MOMENT WHEN THE
FORMER HAD REACHED THE END OF THEIR INTERSTATE TRANSPORTATION AND HAD
NOT BEGUN TO BE CONSUMED IN INTERSTATE OPERATION.  AT THAT MOMENT, THE
TAX ON STORAGE AND USE - RETENTION AND EXERCISE OF A RIGHT OF
OWNERSHIP, RESPECTIVELY - WAS EFFECTIVE.  THE INTERSTATE MOVEMENT WAS
COMPLETE.  THE INTERSTATE CONSUMPTION HAD NOT BEGUN.  CHAMPLAIN CO. V.
BRATTLEBORO  FN30  AND CARSON PETROLEUM CO. V. VIAL  FN31  ARE
THEREFORE INAPPLICABLE.  BACON V. ILLINOIS,  FN32  WHERE TAXATION OF
GRAIN DURING STOPPAGE IN TRANSIT WAS VALIDATED, PRESENTS A CLOSER
ANALOGY.  "PRACTICAL CONTINUITY" DOES NOT ALWAYS MAKE AN ACT A PART OF
INTERSTATE COMMERCE.  FN33  THIS CONCLUSION DOES NOT GIVE PREPONDERANCE
TO THE LANGUAGE OF THE STATE ACT OVER ITS EFFECT ON COMMERCE.  STATE
TAXES UPON NATIONAL COMMERCE OR ITS INCIDENTS DO NOT DEPEND FOR THEIR
VALIDITY UPON A CHOICE OF WORDS BUT UPON THE CHOICE OF THE THING
TAXED.  IT IS TRUE, THE INCREASED COST TO THE INTERSTATE OPERATOR FROM
A TAX ON INSTALLATION IS THE SAME AS FROM A TAX ON CONSUMPTION OR
OPERATION.  THIS IS NOT SIGNIFICANT.  FN34  THE PROHIBITED BURDEN UPON
COMMERCE BETWEEN THE STATES IS CREATED BY STATE INTERFERENCE WITH THAT
COMMERCE, A MATTER DISTINCT FROM THE EXPENSE OF DOING BUSINESS.  A
DISCRIMINATION AGAINST IT, OR A TAX ON ITS OPERATIONS AS SUCH, IS AN
INTERFERENCE.  A TAX ON PROPERTY OR UPON A TAXABLE EVENT IN THE STATE,
APART FROM OPERATION, DOES NOT INTERFERE.  THIS IS A PRACTICAL
ADJUSTMENT OF THE RIGHT OF THE STATE TO REVENUE FROM THE
INSTRUMENTALITIES OF COMMERCE AND THE OBLIGATION OF THE STATE TO LEAVE
THE REGULATION OF INTERSTATE AND FOREIGN COMMERCE TO THE CONGRESS. 

BUT IT IS URGED BY THE APPELLANT THAT OUR FORMER OPINIONS MAKE THIS
CONCLUSION A DEPARTURE FROM PRECEDENT; THE EVENTS ARE SO CLOSE TO OR SO
INSEPARABLY INTERTWINED WITH INTERSTATE COMMERCE, AS TO BE A PART OF
IT.  FN35  COONEY V. MOUNTAIN STATES TELEPHONE CO. FN36  IS CITED TO
SHOW THAT A "STATE EXCISE TAX CANNOT BE VALIDLY APPLIED
INDISCRIMINATELY AND WITHOUT APPORTIONMENT TO AN INSTRUMENTALITY COMMON
TO INTERSTATE AND INTRASTATE COMMERCE."  THE TELEPHONE COMPANY WAS
TAXED A SUM ON EACH TELEPHONE IN USE.  AS THE INSTRUMENT WAS EMPLOYED
PART OF THE TIME IN INTERSTATE COMMERCE, THIS COURT HELD THE TAX TO BE
UPON THAT COMMERCE AND INVALID.  SINCE THERE WAS NO APPORTIONMENT THE
ENTIRE TAX FELL.  UNLESS THE TAXABLE EVENTS HERE, ALL OF WHICH ARE
INTRASTATE, ARE IN EFFECT A PART OF INTERSTATE COMMERCE, OUR PREVIOUS
DISCUSSION OF THEIR SEPARABLE CHARACTER WOULD RENDER THE COONEY CASE
INAPPLICABLE.  FOR THIS POINT WE ARE REFERRED TO PUGET SOUND CO. V. TAX
COMMISSION  FN37  AND OZARK PIPE LINE CORP. V. MONIER.  FN38 

IN THE FORMER CASE, THE DISTINCTION IN THE OPINION BETWEEN
STEVEDORING IN LOADING AND UNLOADING INTERSTATE CARGOES, HELD NON
TAXABLE AS A BURDEN UPON COMMERCE, AND THE BUSINESS OF SUPPLYING
LONGSHOREMEN FOR OTHERS TO LOAD AND UNLOAD, HELD TAXABLE AS A LOCAL
BUSINESS, IS APPLICABLE HERE.  THE INVALID TAX IN THE PUGET SOUND CASE
WAS ON THE BUSINESS OF STEVEDORING, MEASURED BY A PERCENTAGE OF GROSS
RECEIPTS FROM INTERSTATE ACTIVITY.  THE VALID TAX WAS A SIMILAR
PERCENTAGE ON THE LOCAL ACTIVITY AS AN EMPLOYMENT AGENCY.  HERE, UNDER
OUR ANALYSIS, WE FIND ONLY INTRASTATE EVENTS TAXED.  FN39 

IN THE OZARK CASE, MISSOURI SOUGHT TO JUSTIFY A FRANCHISE TAX ON A
COMPANY ENGAGED IN THE OPERATION OF AN INTERSTATE PIPE LINE BY
SUGGESTING THE TAX WAS UPON CERTAIN INTRASTATE EVENTS, SUCH AS
OPERATION OF COMMUNICATIONS, REPAIR AND PURCHASE OF SUPPLIES.  THE TAX
WAS FORBIDDEN BECAUSE ON THE PRIVILEGE OF DOING AN EXCLUSIVELY
INTERSTATE BUSINESS.  THE OPINION IS TO BE READ IN THE LIGHT OF THE
STATEMENT BY THE COURT OF ITS INTERPRETATION OF THE FACTS AND LEGAL
DEDUCTIONS WHICH CONTROL ITS DECISION.  THE MISSOURI ACT CALLED FOR A
FRANCHISE TAX OF A PERCENTAGE OF THE PAR OF ITS STOCK, APPORTIONED TO
ITS ASSETS IN THAT STATE.  THIS COURT SAID THAT "THE TAX IS ONE UPON
THE PRIVILEGE OR RIGHT TO DO BUSINESS," AND AS THE TAXPAYER "IS ENGAGED
ONLY IN INTERSTATE COMMERCE" THE TAX "CONSTITUTIONALLY CANNOT BE
IMPOSED."  THERE WAS THEN ADDED THIS PARAGRAPH: 

"THE MAINTENANCE OF AN OFFICE, THE PURCHASE OF SUPPLIES, EMPLOYMENT
OF LABOR, MAINTENANCE AND OPERATION OF TELEPHONE AND TELEGRAPH LINES
AND AUTOMOBILES, AND APPELLANT'S OTHER ACTS WITHIN THE STATE, WERE ALL
EXCLUSIVELY IN FURTHERANCE OF ITS INTERSTATE BUSINESS; AND THE PROPERTY
ITSELF, HOWEVER EXTENSIVE OR OF WHATEVER CHARACTER, WAS LIKEWISE
DEVOTED ONLY TO THAT END.  THEY WERE THE MEANS AND INSTRUMENTALITIES BY
WHICH THAT BUSINESS WAS DONE AND IN NO PROPER SENSE CONSTITUTED, OR
CONTRIBUTED TO, THE DOING OF A LOCAL BUSINESS.  THE PROTECTION AGAINST
IMPOSITION OF BURDENS UPON INTERSTATE COMMERCE IS PRACTICAL AND
SUBSTANTIAL AND EXTENDS TO WHATEVER IS NECESSARY TO THE COMPLETE
ENJOYMENT OF THE RIGHT PROTECTED."  FN40 

THIS COURT POINTED OUT THAT THE CORPORATION HAD A LICENSE TO ENGAGE
EXCLUSIVELY IN INTERSTATE BUSINESS.  FN41  THE LANGUAGE JUST QUOTED
SHOWS THAT THIS COURT INTERPRETED THE TRANSACTIONS IN MISSOURI AS
MERELY A PART OF THE INTERSTATE COMMERCE AND THE TAX ON THE FRANCHISE
AN INTERFERENCE THEREWITH BECAUSE A TAX DIRECTLY UPON IT.  FN42  "  ...
NOTHING WAS DONE IN MISSOURI EXCEPT IN FURTHERANCE OF
TRANSPORTATION."  FN43  IT WAS THIS CONCLUSION OF THE COURT ON THE
FACTUAL SITUATION WHICH BROUGHT ABOUT THE OZARK DECISION.  WHERE THERE
IS ALSO INTRASTATE ACTIVITY, AN APPORTIONED STATE FRANCHISE TAX ON
FOREIGN CORPORATIONS DOING AN INTERSTATE BUSINESS IS UPHELD.  FN44  A
FRANCHISE TAX ON AN EXCLUSIVELY INTERSTATE BUSINESS IS A DIRECT BURDEN;
PROPORTIONED TO AN INTERMINGLED BUSINESS, IT IS VALID.  FN45  SINCE THE
INCIDENCE OF THE CALIFORNIA TAX AS HERE INTERPRETED IS UPON EVENTS
OUTSIDE OF INTERSTATE COMMERCE, THE OZARK OPINION IS NOT APPLICABLE. 
THERE THE MISSOURI TAX WAS UPON ACTIVITIES FOUND WHOLLY INTERSTATE. 

FINALLY, APPELLANTS URGE THAT THE TAX VIOLATES THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT BECAUSE EXACTED FOR CONSUMPTION OF OFFICE
AND CAR SUPPLIES OUTSIDE THE STATE, UPON THEIR APPROPRIATION IN
CALIFORNIA BY THE GENERAL OFFICE TO THE USE OF THE WHOLE SYSTEM.  FN46
THIS CONTENTION FALLS WITH THE DETERMINATION THAT THE TAXABLE EVENT IS
THE EXERCISE OF THE PROPERTY RIGHT IN CALIFORNIA.  THIS COURT DECLINED
TO ACCEPT A SIMILAR ARGUMENT IN THE SILAS MASON COMPANY CASE.  FN47
AFFIRMED. 

FN1  CAL. STATS. 1935, CH. 361. 

FN2  SEC. 266, JUD.  CODE, 28 U.S.C. SEC. 380. 

FN3  AS THE BILL WAS FILED JULY 10, 1936, THERE WAS JURISDICTION.  50
STAT. 738. 

FN4  SOUTHERN PACIFIC CO. V. CORBETT, 20 F.SUPP.  940. 

FN5  ID., 23 F.SUPP.  193. 

FN6  SEC. 266, JUD.  CODE, 28 U.S.C. SEC. 380. 

FN7  CAL. STATS. 1933, CH. 1020, AS AMENDED, CAL. STATS. 1935, CHS. 
351, 355, 357. 

FN8  CALIFORNIA USE TAX ACT, SUPRA, SEC. 3. 

FN9  ID., SECS. 2, 3. 

FN10  300 U.S. 577.  CF. FELT & TARRANT MFG. CO. V. GALLAGHER, ANTE. 
P. 62. 

FN11  NEW YORK V. KLEINERT, 268 U.S. 646, 651. 

FN12  HENNEFORD V. SILAS MASON CO., 300 U.S. 577, 587. 

FN13  NATIONAL ICE & COLD STORAGE CO. V. PACIFIC FRUIT EXPRESS CO.,
95 CAL. DEC. 442, 445-8; 11 CAL.2D 283; 79 P.2D 380. 

FN14  CF. OZARK PIPE LINE CORP. V. MONIER, 266 U.S. 555. 

FN15  TELEGRAPH COMPANY V. TEXAS, 105 U.S. 460. 

FN16  CASE OF THE STATE FREIGHT TAX, 15 WALL.  232. 

FN17  ROBBINS V. SHELBY COUNTY TAXING DIST., 120 U.S. 489, 496, 497;
BRENNAN V. TITUSVILLE, 153 U.S. 289. 

FN18  LELOUP V. PORT OF MOBILE, 127 U.S. 640. 

FN19  SEE THE DISCUSSION IN GWIN, WHITE & PRINCE, INC. V. HENNEFORD,
305 U.S. 434. 

FN20  PHILADELPHIA STEAMSHIP CO. V. PENNSYLVANIA, 122 U.S. 326, 336. 

FN21  FISHER'S BLEND STATION V. STATE TAX COMM'N, 297 U.S. 650. 

FN22  ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 311. 

FN23  FOR COMPARISON WITH SOVEREIGN IMMUNITY RULE AND REASON FOR
VARIATION, SEE JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 157, 158. 

FN24  WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250, 256, AND
CASES CITED.  COVERDALE V. ARKANSAS-LOUISIANA PIPE LINE CO., 303 U.S.
604, 612; FICKLEN V. SHELBY COUNTY TAXING DIST., 145 U.S. 1; AND
AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459, AS EXPLAINED IN GWIN,
WHITE & PRINCE, INC. V. HENNEFORD, SUPRA, AND ADAMS MFG. CO. V. STOREN,
SUPRA, 312. 

FN25  HELSON & RANDOLPH V. KENTUCKY, 279 U.S. 245; SEE ALSO BINGAMAN
V. GOLDEN EAGLE LINES, 297 U.S. 626. 

FN26  COVERDALE V. PIPE LINE CO., 303 U.S. 604, 609. 

FN27  NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S. 249. 

FN28  ID., 265-66; SEE EDELMAN V. BOEING AIR TRANSPORT, 289 U.S. 249,
252; GREGG DYEING CO. V. QUERY, 286 U.S. 472, 479. 

FN29  ID., 267. 

FN30  260 U.S. 366. 

FN31  279 U.S. 95. 

FN32  227 U.S. 504. 

FN33  OLIVER MINING CO. V. LORD, 262 U.S. 172; HOPE NATURAL GAS CO.
V. HALL, 274 U.S. 284; UTAH POWER & L. CO. V. PFOST, 286 U.S. 165. 

FN34  WESTERN LIVE STOCK V. BUREAU, 303 U.S. 250, 254, AND CASES
CITED. 

FN35  CF. HENNEFORD V. SILAS MASON CO., 300 U.S. 577, 583. 

FN36  294 U.S. 384. 

FN37  302 U.S. 90. 

FN38  266 U.S. 555. 

FN39  UNDER THE COMMERCE CLAUSE THE REGULATORY POWER OF THE CONGRESS
IS CUSTOMARILY EXERCISED ON TRANSACTIONS TAKING PLACE WITHIN THE STATE
ON THE PRINCIPLE THAT SUCH ACTS ARE AN ESSENTIAL PART OF INTERSTATE
COMMERCE.  SEE CURRIN V. WALLACE, ANTE, P. 1, AND CASES CITED.  CF.
TOWNSEND V. YEOMANS, 301 U.S. 441. 

FN40  266 U.S. 555, 565. 

FN41  ID., 567. 

FN42  ANGLO-CHILEAN CORP. V. ALABAMA, 288 U.S. 218, 224; ID.,
MINORITY, 236; VIRGINIA V. IMPERIAL COAL CO., 293 U.S. 15, 20. 

FN43  SOUTHERN GAS CORP. V. ALABAMA, 301 U.S. 148, 155. 

FN44  ID., 156. 

FN45  SEE ALSO ATLANTIC LUMBER CO. V. COMMISSIONER, 298 U.S. 553,
556. 

FN46  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134; CONNECTICUT
GENERAL LIFE INS. CO. V. JOHNSON, 303 U.S. 77; FRICK V. PENNSYLVANIA,
268 U.S. 473; GREAT ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301 U.S.
412; INTERNATIONAL PAPER CO. V. MASSACHUSETTS, 246 U.S. 135. 

FN47  HENNEFORD V. SILAS MASON CO., 300 U.S. 577, 578. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BUTLER: 

MR. JUSTICE MCREYNOLDS AND I ARE OF OPINION THAT THE JUDGMENT SHOULD
BE REVERSED. 

THE FACTS STATED IN THE OPINION JUST ANNOUNCED LEAVE NOTHING OF
SUBSTANCE TO SUPPORT ITS CONCLUSION THAT THE CALIFORNIA TAX IS NOT UPON
THE OPERATION - MAINTENANCE AND USE - OF APPELLANT'S RAILROAD FOR
INTERSTATE TRANSPORTATION.  DISCUSSION CAN NEITHER OBSCURE NOR MORE
PLAINLY DISCLOSE THE TRUTH THAT THE TAX IN QUESTION DIRECTLY BURDENS
COMMERCE AMONG THE STATES.  CONCEDEDLY, THAT IS REPUGNANT TO THE
COMMERCE CLAUSE AS, FROM THE BEGINNING, IT HAS BEEN CONSTRUED BY THIS
COURT. 
..END :





















PACIFIC TEL. CO. V. GALLAGHER, 306 U.S. 182 


NO. 213.  ARGUED DECEMBER 12, 13, 1938.  - DECIDED JANUARY 30, 1939.  -
23 F.SUPP.  197, AFFIRMED. 


CALIFORNIA USE AND STORAGE TAX ON TELEPHONE AND TELEGRAPH COMPANY IN
RESPECT OF EQUIPMENT, APPARATUS, MATERIALS AND SUPPLIES PURCHASED
OUTSIDE AND SHIPPED INTO THE STATE IN OPERATION, MAINTENANCE AND REPAIR
OF ITS INTERSTATE SYSTEM, HELD CONSTITUTIONAL, UPON THE AUTHORITY OF
SOUTHERN PACIFIC CO. V. GALLAGHER, ANTE, P. 167. 

PACIFIC TELEPHONE & TELEGRAPH CO. V. GALLAGHER ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

APPEAL FROM A DECREE OF A THREE-JUDGE DISTRICT COURT REFUSING A
PERMANENT INJUNCTION AND DISMISSING THE BILL IN A SUIT TO RESTRAIN
ENFORCEMENT OF THE CALIFORNIA USE TAX.  THE COURT BELOW HAD AT FIRST
OVERRULED A MOTION TO DISMISS AND GRANTED AN INTERLOCUTORY INJUNCTION. 

THE TAX IS BAD AS A DIRECT TAX UPON THE OPERATION OF
INSTRUMENTALITIES OF INTERSTATE COMMERCE, FALLING INDISCRIMINATELY AND
WITHOUT APPORTIONMENT UPON INTERSTATE AND INTRASTATE USE.  HELSON &
RANDOLPH V. KENTUCKY, 279 U.S. 245; BINGAMAN V. GOLDEN EAGLE LINES, 297
U.S. 626; COONEY V. MOUNTAIN STATES TELEPHONE CO. 294 U.S. 384, 393. 

THE TRIAL COURT'S RULING THAT THE TAX MAY BE APPLIED TO THE STORAGE
OF PROPERTY PRIOR TO INTERSTATE USE DOES NOT SUPPORT THE DECREE AS TO
THE SPECIFIC ORDER EQUIPMENT WHICH IS NOT STORED PRIOR TO ITS USE IN
INTERMINGLED INTERSTATE AND INTRASTATE COMMERCE.  LIKEWISE, IN THE CASE
OF THE STAND-BY PROPERTY, THERE IS NO PRELIMINARY INTRASTATE STORAGE
SEPARABLE FROM USE IN THE INTERMINGLED COMMERCE, SINCE IT IS TRUE IN
EVERY PRACTICAL SENSE, AS THE TRIAL COURT SPECIFICALLY FOUND, THAT THE
STAND-BY SERVICE IN THIS CASE IS ITSELF A NECESSARY USE OF THE PROPERTY
IN THE APPELLANT'S INTERMINGLED INTERSTATE AND INTRASTATE BUSINESS. 

THERE IS IN THIS CASE NO INTRASTATE ENTERPRISE, TRANSACTION, OR USE
WHICH IS SEPARABLE FROM THE INTERSTATE USE OF THE PROPERTY.  THE TAX
UPON THE USE OF THE PROPERTY, EITHER IN THE IMMEDIATE RENDITION OF
SERVICE (SPECIFIC ORDER EQUIPMENT) OR IN A STAND-BY CAPACITY (STAND-BY
FACILITIES), IS, THEREFORE, A DIRECT TAX UPON INTERSTATE COMMERCE.  THE
STATE STATUTE, PROPERLY CONSTRUED, DID NOT INTEND TO IMPOSE SUCH A TAX,
BUT IF IT IS OTHERWISE CONSTRUED, IT IS UNCONSTITUTIONAL IN THAT
RESPECT. 

THE APPELLEES ATTEMPT TO DISTINGUISH THE HELSON CASE, UPON THE
ASSUMPTION HERE OF SOME SEPARABLE INTRASTATE TRANSACTION AFFECTING THE
PROPERTY TO WHICH THE TAX APPLIES, IS ANSWERED BY THE FACT THAT THERE
IS NO STORAGE OR WITHDRAWAL FROM STORAGE OF THE SPECIFIC ORDER
EQUIPMENT.  NO STORAGE OCCURS IN THE MOMENTS WHEN THE PROPERTY IS
TEMPORARILY SET DOWN IN THE COURSE OF UNLOADING OR INSTALLATION.  THESE
ARE NECESSARY AND INCIDENTAL INTERRUPTIONS OF MOVEMENT.  FURTHERMORE,
IT IS SETTLED THAT A MOMENTARY STORAGE COMPRISING A MERE TEMPORARY
INTERRUPTION OF THE COURSE OF A NON-TAXABLE INTERSTATE EVENT DOES NOT
ITSELF ACQUIRE AN INTRASTATE CHARACTER AND BECOME TAXABLE ON THAT
ACCOUNT.  CARSON PETROLEUM CO. V. VIAL, 279 U.S. 95; CHAMPLAIN CO. V.
BRATTLEBORO, 260 U.S. 366. 

TO THE SUGGESTION THAT THE INSTALLATION OF THE EQUIPMENT MAY BEAR THE
TAX, THE ANSWER IS THAT THE STATUTE DOES NOT TAX INSTALLATION.  IF IT
DID PURPORT TO DO SO IT WOULD BE INVALID IN THIS CASE.  A TAX ON
INSTALLATION FOR USE IS IN EFFECT A TAX UPON THE USE ITSELF, AND WOULD
DEFEAT THE ENDS OF THE CONSTITUTIONAL PROTECTION.  THE MAINTENANCE OF
INTERSTATE TELEPHONE AND TELEGRAPH LINES AND REPAIRS IN THE OPERATION
OF INTERSTATE PIPE LINES - NECESSARILY INVOLVING THE INSTALLATION OF
REPAIR PARTS AND IMPROVEMENTS - ARE NOT SEPARABLE INTRASTATE ACTIVITIES
AUTHORIZING THE IMPOSITION OF A STATE EXCISE TAX.  OZARK PIPE LINE V.
MONIER, 266 U.S. 555, 565; ATLANTIC LUMBER CO. V. COMMISSIONER, 298
U.S. 553, 557. 

INSTALLATION FOR INTERSTATE USE, LIKE LOADING FOR INTERSTATE
SHIPMENT, IS ESSENTIALLY THE ACT OF PUTTING THE PROPERTY IN POSITION
FOR INTERSTATE ACTIVITY, AND IS EXCLUSIVELY IN FURTHERANCE OF THE
INTERSTATE COMMERCE.  IT IS SETTLED THAT A STATE CAN NOT TAX SUCH A
CLOSELY RELATED INCIDENT OF INTERSTATE COMMERCE AS THE LOADING OF GOODS
IN POSITION FOR INTERSTATE SHIPMENT,  - PUGET SOUND CO. V. TAX COMM'N,
302 U.S. 90; HUGHES BROS CO. V. MINNESOTA, 272 U.S. 469,  - EVEN WHERE
THE WORK IS DONE BY A SEPARATE CONCERN HIRED FOR THE PURPOSE. 

WITH RESPECT TO STAND-BY FACILITIES, APPELLEES' CLAIM SEEMS TO BE
THAT THIS PROPERTY IS PART OF THE GENERAL MASS OF PROPERTY IN THE STATE
AND HENCE IS SUBJECT TO THE STATE'S GENERAL TAXING LAWS.  BUT THE
PERFORMANCE OF THE STAND-BY FUNCTION, AS THE FACTS SHOW AND AS THE
TRIAL COURT HELD, IS USE OF THE PROPERTY IN THE INTERSTATE-INTRASTATE
BUSINESS; AND WHILE ALL THE REST OF APPELLANT'S PLANT IN USE IS PART OF
THE GENERAL MASS OF PROPERTY IN THE STATE AND MAY BE SUBJECTED TO
PROPERTY TAXES, YET THE STATE MAY NOT TAX THE USE OF THAT PLANT IN
INTERSTATE COMMERCE, NOR ANY PART OF THE PRIVILEGE OF INTERMINGLED
INTERSTATE AND INTRASTATE USE WITHOUT APPORTIONING THE TAX TO THE
AMOUNT OF INTRASTATE USE. 

THE INTERSTATE AND INTRASTATE BUSINESS OF APPELLANT ARE INSEPARABLY
INTERTWINED; THE PROPERTY INVOLVED IS WHOLLY USED IN INEXTRICABLY
INTERMINGLED INTERSTATE AND INTRASTATE COMMERCE; AND APPELLEES HAVE
DEMANDED THE TAX FOR THE STORAGE, USE, OR OTHER CONSUMPTION, OF ALL OF
THE PROPERTY AT THE RATE OF 3% OF THE PURCHASE PRICE OF ALL OF IT,
WITHOUT ANY APPORTIONMENT FOR THE DIVISION OF USE BETWEEN INTERSTATE
AND INTRASTATE COMMERCE.  SINCE THERE IS NO TRANSACTION SEPARABLE FROM
THE INTERMINGLED USE, AND SINCE THE TAX NECESSARILY, THEREFORE, FALLS
ON THE INTERMINGLED USE, AND SINCE THE MEASURE OF THE TAX IS
UNAPPORTIONED BY ANY ALLOCATION OF THE USE, IT IS PLAIN THAT THE TAX IS
NOT LAID UPON THE INTRASTATE USE ALONE. 

THE CASE COINCIDES WITH THE COONEY CASE.  CF. WESTERN UNION TELEGRAPH
CO. V. KANSAS, 216 U.S. 1, 27.  APPELLANT IS COMPELLED TO PURCHASE MORE
PROPERTY BY REASON OF THE INTERSTATE BUSINESS THAN IT WOULD IF IT WERE
ENGAGED IN INTRASTATE COMMERCE ALONE; SO THAT THE TAX, A FIXED
PERCENTAGE OF THE PURCHASE PRICE OF THE PROPERTY, IS GREATER BY REASON
OF THE INTERSTATE BUSINESS DONE.  RALEY & BROS. V. RICHARDSON, 264 U.S.
157, DISTINGUISHED. 

IT IS NOT TRUE THAT THE SALE AND USE TAXES ARE BOTH PAID BY THE
PURCHASER.  THE CALIFORNIA RETAIL SALES TAX ACT OF 1933, (CAL. STATS.
1933, P. 2599, CH. 1020) IMPOSES UPON RETAILERS, FOR THE PRIVILEGE OF
SELLING TANGIBLE PERSONAL PROPERTY AT RETAIL, A TAX EQUAL TO 3% OF THE
GROSS RECEIPTS FROM THEIR RETAIL SALES.  IN NATIONAL ICE & COLD STORAGE
CO. V. PACIFIC FRUIT EXPRESS CO., 11 CAL.2D 283; 79 P.2D 380, THE
SUPREME COURT OF CALIFORNIA HELD THAT THE SALES TAX IS A TAX ON THE
RETAILER AND NOT ON THE PURCHASER, AND THAT THE PROVISIONS FOR PASSING
THE TAX ON TO THE PURCHASER WERE INVALID EXCEPT IN SO FAR AS THE LATTER
MIGHT CONSENT THERETO, EITHER EXPRESSLY OR IMPLIEDLY.  IT IS MERELY
OPTIONAL WITH THE RETAILER WHETHER HE SHALL ATTEMPT TO REIMBURSE
HIMSELF FROM THE CONSUMER; HE MAY WAIVE THE RIGHT, ROTH DRUG, INC. V.
JOHNSON, 13 CAL. APP.2D 720, 736; 57 P.2D 1022, 1029, (APPROVED IN THE
CASE LAST CITED).  THE USE TAX ACT, ON THE OTHER HAND, MAKES THE TAX A
DIRECT OBLIGATION OF THE CONSUMER, WHO MUST PAY THE TAX - TO THE
RETAILER IF THE LATTER MAINTAINS A PLACE OF BUSINESS IN CALIFORNIA,
OTHERWISE DIRECTLY TO THE STATE BOARD OF EQUALIZATION. 

OBVIOUSLY, THE SALES AND USE TAXES ARE NOT MUTUALLY COMPLEMENTARY;
MOREOVER, THE CALIFORNIA TAX SCHEME CREATES A HEAVIER DETERRENT TO
INTERSTATE COMMERCE THAN TO INTRASTATE COMMERCE, BECAUSE THE CONSUMER
CAN NOT ESCAPE THE 3% USE TAX ON HIS PURCHASES INTERSTATE, BUT MAY
ESCAPE THE 3% SALES TAX ON HIS PURCHASES INTRASTATE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE SAME QUESTIONS AS SOUTHERN PACIFIC CO. V.
GALLAGHER, ANTE, P. 167.  THE APPELLANT SOUGHT TO RESTRAIN THE STATE
BOARD OF EQUALIZATION OF THE STATE OF CALIFORNIA, ITS MEMBERS, AND THE
ATTORNEY GENERAL OF THE STATE FROM ENFORCING THE USE TAX OF 1935.  A
THREE-JUDGE COURT GRANTED AN INTERLOCUTORY INJUNCTION.  LATER, IT
DENIED A PERMANENT INJUNCTION AND DISMISSED THE APPELLANT'S BILL  FN1
FOR THE REASONS STATED IN SOUTHERN PACIFIC CO. V. CORBETT, 23 F.SUPP. 
193. 

THE APPELLANT, A CALIFORNIA CORPORATION, OPERATES A TELEPHONE AND
TELEGRAPH SYSTEM IN INTERSTATE AND INTRASTATE COMMERCE.  THE SAME
PLANT, FACILITIES AND ORGANIZATION ARE DEVOTED TO BOTH INTERSTATE AND
INTRASTATE BUSINESS.  IN THE NECESSARY OPERATION, MAINTENANCE AND
REPAIR OF ITS SYSTEM, THE APPELLANT PURCHASES OUTSIDE CALIFORNIA LARGE
AMOUNTS OF EQUIPMENT, APPARATUS, MATERIALS AND SUPPLIES WHICH ARE
SHIPPED TO IT IN INTERSTATE COMMERCE AT VARIOUS POINTS WITHIN THE
STATE.  THE TANGIBLE PERSONAL PROPERTY WHICH THE APPELLEES THREATEN TO
TAX IS OF TWO GENERAL CLASSES:  SPECIFIC ORDER AND STAND-BY EQUIPMENT. 
THE FIRST CONSISTS OF CENTRAL OFFICE SWITCHBOARDS, FRAMES, CABLE RACKS,
LARGE PRIVATE BRANCH EXCHANGE SWITCHBOARDS, LARGE UNDERGROUND CABLES,
SWITCHES, CENTRAL OFFICE CABLE, WIRE, PROTECTORS AND OTHER COMPONENT
PARTS OF TELEPHONE AND TELEGRAPH LINES, WHICH ARE PURCHASED ON SPECIFIC
ORDER FOR INSTALLATION AT A PARTICULAR PLACE IN THE SYSTEM.  THE SECOND
COMPRISES GOODS BOUGHT FROM TIME TO TIME FOR HOLDING AS STAND-BY
SUPPLIES TO MEET FLUCTUATING DEMANDS AND EMERGENCIES AND TO MAKE
REPAIRS. 

THE SPECIFIC ORDER EQUIPMENT IS SHIPPED TO THE APPELLANT AT THE PLACE
OF USE.  ITS REPRESENTATIVE RECEIPTS FOR THE GOODS AT THE DOCK OR
BREAKS THE SEAL OF THE RAILROAD CAR, AND ITS EMPLOYEES UNLOAD THE GOODS
FROM THE DOCK OR CAR INTO ITS TRUCKS.  IN MOST INSTANCES THE TRUCKS ARE
DRIVEN DIRECTLY TO THE BUILDING WHERE THE EQUIPMENT IS TO BE INSTALLED;
IN SOME, TO DISTRIBUTING CENTERS FOR RELOADING INTO OTHER TRUCKS WHICH
ARE DRIVEN TO THE PLACE OF INSTALLATION.  OCCASIONALLY, PRIVATE BRANCH
EXCHANGE SWITCHBOARDS MUST BE HELD BY THE APPELLANT UNTIL THE PLACE OF
INSTALLATION IS READY.  THERE IS NO HOLDING IN WAREHOUSES.  THE STAND
BY SUPPLIES WHICH CONSTITUTE A RESERVE TO MEET CURRENT REQUIREMENTS ARE
REPLENISHED BY MONTHLY ORDERS.  THE APPELLANT'S TRUCKS PICK THEM UP AT
THE DOCK OR RAILROAD DEPOT AND CARRY THEM TO STORAGE PLACES AT POINTS
ON THE SYSTEM SUITABLE FOR PROMPT DISTRIBUTION.  WHEN NEEDED, THE STAND
BY FACILITIES ARE TAKEN OUT OF THE STORES AND INSTALLED. 

THE APPELLANT EXERCISES TWO RIGHTS OF OWNERSHIP IN CALIFORNIA -
RETENTION AND INSTALLATION - AFTER THE TERMINATION OF THE INTERSTATE
SHIPMENT AND BEFORE THE USE OR CONSUMPTION ON ITS MIXED INTERSTATE AND
INTRASTATE TELEPHONE SYSTEM.  WE SEE NO MATERIAL DISTINCTION BETWEEN
THE CONTENTIONS OF THE APPELLANT AND THOSE DISPOSED OF IN SOUTHERN
PACIFIC CO. V. GALLAGHER, ANTE, P. 167. 

THE DECREE OF THE LOWER COURT DISMISSING THE APPELLANT'S BILL IS
AFFIRMED. 

FN1  PACIFIC TEL. & TEL. CO. V. CORBETT, 23 F.SUPP.  197. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER DISSENT. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









PULLMAN CO. V. JENKINS, 305 U.S. 534 


NO. 210.  ARGUED DECEMBER 13, 14, 1938.  - DECIDED JANUARY 16, 1939.  -
96 F.2D 405, AFFIRMED AS TO RESULT. 


1.  EXISTENCE OF A SEPARABLE CONTROVERSY FOR REMOVAL UNDER 28 U.S.C.
SEC. 71 IS DETERMINED ACCORDING TO THE PLAINTIFF'S PLEADING AT THE TIME
OF PETITION FOR REMOVAL.  P. 537. 

2.  IF, AS TO THE NON-RESIDENT DEFENDANT SEEKING REMOVAL, THE
CONTROVERSY IS SEPARABLE WITHIN THE PURVIEW OF 28 U.S.C. SEC. 71, THE
FACT THAT UNDER THE STATE PRACTICE IT MAY BE JOINED IN THE SAME SUIT
WITH ANOTHER CONTROVERSY AS AGAINST OTHER DEFENDANTS, DOES NOT PRECLUDE
REMOVAL.  P. 538. 

3.  WHERE, IN THE ABSENCE OF CLEAR PROOF OF BAD FAITH IN THE JOINDER,
CONCURRENT ACTS OF NEGLIGENCE ON THE PART OF THE DEFENDANTS SUED AS
JOINT TORT-FEASORS ARE SUFFICIENTLY ALLEGED, A SEPARABLE CONTROVERSY IS
NOT PRESENTED AND THE FACT THAT THE DEFENDANTS MIGHT HAVE BEEN SUED
SEPARATELY AFFORDS NO GROUND FOR REMOVAL.  THIS RULE IS APPLIED WHERE A
NON-RESIDENT EMPLOYER AND ITS RESIDENT EMPLOYEE, WHOSE NEGLIGENCE
CAUSED THE INJURY, ARE SUED JOINTLY.  P. 538. 

4.  A NON-RESIDENT SLEEPING CAR COMPANY AND ITS RESIDENT PORTER WERE
SUED FOR NEGLIGENCE, COMMITTED BY THE ACTION OF THE PORTER, IN
PERMITTING A DRUNKEN AND DISORDERLY MAN TO BOARD A SLEEPING CAR, WHO,
WHILST BEING EJECTED, STRUCK THE PLAINTIFF'S HUSBAND, THE TRAIN
CONDUCTOR, CAUSING HIS DEATH.  HELD: 

(1)  THAT THIS CONTROVERSY WAS SEPARABLE FROM OTHERS IN THE SAME
COMPLAINT, VIZ. A CLAIM AGAINST THE ASSAILANT FOR THE ASSAULT, AND A
CLAIM AGAINST THE RAILWAY COMPANY AND ITS GATE TENDER FOR NEGLIGENCE IN
PERMITTING THE ASSAILANT TO ENTER THE STATION AND GO THROUGH THE GATES,
WITHOUT SHOWING HIS TICKET, TO BOARD THE TRAIN.  P. 539. 

(2)  THE NON-RESIDENT CAR COMPANY, BEING CHARGED JOINTLY WITH ITS
RESIDENT EMPLOYEE, COULD NOT REMOVE THE CASE TO THE FEDERAL COURT.  P.
540. 

(3)  THE FACTS THAT THE PORTER WAS SUED BY A FICTITIOUS NAME AND HIS
RESIDENCE NOT ALLEGED IN THE COMPLAINT, DID NOT JUSTIFY REMOVAL.  ID. 

IT WAS INCUMBENT UPON THE CAR COMPANY TO SHOW THAT IT HAD A SEPARABLE
CONTROVERSY WHICH WAS WHOLLY BETWEEN CITIZENS OF DIFFERENT STATES.  AS
IN DETERMINING WHETHER THERE WAS SUCH A SEPARABLE CONTROVERSY WITH
RESPECT TO THE CAR COMPANY ITS PORTER COULD NOT BE IGNORED, THE CAR
COMPANY WAS BOUND TO SHOW THAT HE WAS A NON-RESIDENT IN ORDER TO
JUSTIFY REMOVAL. 

5.  WHERE THERE IS A NON-SEPARABLE CONTROVERSY AGAINST A NON-RESIDENT
AND A RESIDENT DEFENDANT, THE FACT THAT THE RESIDENT HAS NOT BEEN
SERVED WITH PROCESS DOES NOT JUSTIFY REMOVAL BY THE NON-RESIDENT.  P.
540. 

6.  IT IS ALWAYS OPEN TO THE NON-RESIDENT DEFENDANT TO SHOW THAT THE
RESIDENT DEFENDANT HAS NOT BEEN JOINED IN GOOD FAITH AND FOR THAT
REASON SHOULD NOT BE CONSIDERED IN DETERMINING THE RIGHT TO REMOVE.  P.
541. 

PULLMAN COMPANY ET AL. V. JENKINS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 583, TO REVIEW THE REVERSAL OF A JUDGMENT OF THE
DISTRICT COURT, 17 F.SUPP.  820, DISMISSING, UPON THE GROUND OF
SETTLEMENT AND RELEASE, AN ACTION IN TORT, WHICH HAD BEEN REMOVED FROM
A STATE COURT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER PETITIONER, THE PULLMAN COMPANY, WAS ENTITLED
TO REMOVE THIS CAUSE TO THE FEDERAL COURT.  THE CIRCUIT COURT OF
APPEALS, REVERSING THE DISTRICT COURT, ORDERED REMAND (96 F.2D 405) AND
BECAUSE OF CONFLICT IN THE GROUND OF ITS RULING WITH DECISIONS OF THIS
COURT, WE GRANTED CERTIORARI. 

RESPONDENT, MRS. JENKINS, AND HER SON ROBERT W. JENKINS, BY MRS.
JENKINS AS GUARDIAN AD LITEM, BROUGHT THIS ACTION ON SEPTEMBER 27,
1935, IN THE SUPERIOR COURT FOR LOS ANGELES COUNTY, CALIFORNIA, TO
RECOVER DAMAGES FOR INJURIES CAUSING THE DEATH OF HER HUSBAND.  HE WAS
EMPLOYED BY THE SOUTHERN PACIFIC COMPANY AS CONDUCTOR OF A TRAIN
RUNNING FROM LOS ANGELES TO SAN FRANCISCO.  HIS INJURIES WERE DUE TO A
BLOW STRUCK BY A. J. KASH, WHO WAS BEING REMOVED FROM THE TRAIN BY
POLICE OFFICERS CALLED TO ASSIST THE CONDUCTOR IN EJECTING KASH BECAUSE
OF HIS DISORDERLY CONDUCT.  THE SUIT WAS BROUGHT AGAINST THE SOUTHERN
PACIFIC COMPANY, THE PULLMAN COMPANY, KASH, HATCH, THE PULLMAN
CONDUCTOR, JOHN DOE ONE, DESCRIBED AS EMPLOYED BY THE PULLMAN COMPANY
AS PORTER, AND JOHN DOE TWO, DESCRIBED AS EMPLOYED BY THE SOUTHERN
PACIFIC COMPANY AS GATE TENDER AT THE PASSENGER DEPOT AT LOS ANGELES. 

THE COMPLAINT ALLEGED TWO CAUSES OF ACTION, ONE AGAINST ALL THE
DEFENDANTS, THE OTHER AGAINST KASH ALONE.  THE PLAINTIFFS AND DEFENDANT
KASH WERE STATED TO BE RESIDENTS OF CALIFORNIA.  THE SOUTHERN PACIFIC
COMPANY WAS DESCRIBED AS A KENTUCKY CORPORATION AND THE PULLMAN COMPANY
AS AN ILLINOIS CORPORATION.  THE RESIDENCES OF THE DEFENDANTS HATCH AND
JOHN DOE ONE AND JOHN DOE TWO WERE NOT SET FORTH. 

ON NOVEMBER 20, 1935, THE PULLMAN COMPANY, AS A CITIZEN AND RESIDENT
OF ILLINOIS, INSISTING THAT THE CONTROVERSY AS TO IT WAS A SEPARABLE
ONE, FILED ITS PETITION FOR REMOVAL TO THE FEDERAL COURT, WITH BOND;
AND ON NOVEMBER 25, 1935, THE PETITION AND BOND WERE APPROVED AND
REMOVAL WAS ORDERED.  ON THE DAY ON WHICH THAT ORDER WAS ENTERED, AN
AMENDED COMPLAINT WAS FILED IN THE STATE COURT WHICH CONTAINED THE
ALLEGATION THAT THE ACTION WAS BROUGHT AGAINST THE SOUTHERN PACIFIC
COMPANY UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.  45 U.S.C. 51.  ON
DECEMBER 27, 1935, MRS. JENKINS AS ADMINISTRATRIX OF THE ESTATE OF THE
DECEDENT WAS SUBSTITUTED AS PLAINTIFF.  ON JANUARY 17, 1936, THE
DEFENDANT HATCH DEMURRED TO THE AMENDED COMPLAINT UPON THE GROUND THAT
IT STATED NO CAUSE OF ACTION AGAINST HIM, AND ON JANUARY 29, 1936, THE
DEMURRER WAS SUSTAINED. 

ON JANUARY 22, 1936, THE PLAINTIFFS MOVED TO REMAND, STATING THAT
EDWARD E. MEYERS, THE PULLMAN PORTER, SUED AS JOHN DOE ONE, HAD BEEN
SERVED WITH PROCESS ON JANUARY 14, 1936, AND THAT HE AND THE DEFENDANT
HATCH WERE RESIDENTS AND CITIZENS OF CALIFORNIA, AND THAT THE ACTION AS
AGAINST THEM AND THE PULLMAN COMPANY WAS NOT A SEPARABLE CONTROVERSY. 
PENDING THIS MOTION, ON FEBRUARY 8, 1936, THE PLAINTIFFS FILED IN THE
FEDERAL COURT A SECOND AMENDED COMPLAINT IDENTIFYING MEYERS AS THE
PULLMAN PORTER AND FRED M. DOLSEN AS JOHN DOE TWO, DESCRIBED AS THE
SOUTHERN PACIFIC GATE TENDER.  THIS AMENDED COMPLAINT REPEATED THE
ALLEGATION THAT THE SOUTHERN PACIFIC WAS SUED UNDER THE FEDERAL
EMPLOYERS' LIABILITY ACT.  ON FEBRUARY 19, 1936, THE COURT DENIED THE
MOTION TO REMAND. 

ON DECEMBER 28, 1936, THE ACTION WAS DISMISSED AS AGAINST THE
SOUTHERN PACIFIC AND DOLSEN AS THE RESULT OF A COMPROMISE. 
SUPPLEMENTAL ANSWERS WERE THEN FILED BY THE REMAINING DEFENDANTS
RESPECTIVELY CLAIMING RELEASE BY REASON OF THE AGREEMENT WITH THE
SOUTHERN PACIFIC.  THE DISTRICT COURT SUSTAINED THIS DEFENSE AND
ENTERED JUDGMENT DISMISSING THE COMPLAINT. 

ON APPEAL, THE CIRCUIT COURT OF APPEALS, PASSING THE OTHER QUESTIONS,
HELD THAT IF IT DID NOT SUFFICIENTLY APPEAR AT THE TIME OF THE PETITION
FOR REMOVAL THAT THE CAUSE WAS NOT SEPARABLE, IT DID SO APPEAR WHEN THE
SECOND AMENDED COMPLAINT WAS FILED AND HENCE THAT THE DISTRICT COURT
ERRED IN DENYING THE MOTION TO REMAND.  96 F.2D P. 410.  THIS RULING
WAS PLACED UPON AN ERRONEOUS GROUND.  THE SECOND AMENDED COMPLAINT
SHOULD NOT HAVE BEEN CONSIDERED IN DETERMINING THE RIGHT TO REMOVE,
WHICH IN A CASE LIKE THE PRESENT ONE WAS TO BE DETERMINED ACCORDING TO
THE PLAINTIFFS' PLEADING AT THE TIME OF THE PETITION FOR REMOVAL. 
BARNEY V. LATHAM, 103 U.S. 205, 213-216; GRAVES V. CORBIN, 132 U.S.
571, 585; LOUISVILLE & NASHVILLE R. CO. V. WANGELIN, 132 U.S. 599, 601;
SALEM TRUST CO. V. MANUFACTURERS' FINANCE CO., 264 U.S. 182, 189, 190;
SAINT PAUL MERCURY INDEMNITY CO. V. RED CAB CO., 303 U.S. 283, 294,
295. 

THE QUESTION THEN IS WHETHER THE ORIGINAL COMPLAINT SET FORTH A
SEPARABLE CONTROVERSY BETWEEN THE PLAINTIFFS AND THE PULLMAN COMPANY,
THAT IS, A CONTROVERSY "WHICH IS WHOLLY BETWEEN CITIZENS OF DIFFERENT
STATES, AND WHICH CAN BE FULLY DETERMINED AS BETWEEN THEM."  28 U.S.C.
71.  IF, AS TO THE NON-RESIDENT DEFENDANT SEEKING REMOVAL, THE
CONTROVERSY IS SEPARABLE WITHIN THE PURVIEW OF THE STATUTE AS
CONSTRUED, THE FACT THAT UNDER THE STATE PRACTICE IT MAY BE JOINED IN
THE SAME SUIT WITH ANOTHER CONTROVERSY AS AGAINST OTHER DEFENDANTS,
DOES NOT PRECLUDE REMOVAL.  BARNEY V. LATHAM, SUPRA; NICHOLS V.
CHESAPEAKE & OHIO RY. CO., 195 F. 913, 915, 916; STEWART V. NEBRASKA
TIRE & RUBBER CO., 39 F.2D 309, 311; DES MOINES ELEVATOR CO. V.
UNDERWRITERS' GRAIN ASSN., 63 F.2D 103, 105; CULP V. BALDWIN, 87 F.2D
679, 680-682. 

THIS IS SO WHETHER THE ACTION SOUNDS IN CONTRACT OR IN TORT.  THE
QUESTION IS DETERMINED BY THE PLAINTIFF'S PLEADING.  THUS IF DEFENDANTS
ARE CHARGED WITH NEGLIGENCE, BUT THE CHARGE AGAINST THE NON-RESIDENT
DEFENDANT IS BASED ON DIFFERENT AND NON-CONCURRENT ACTS OF NEGLIGENCE
AND A CAUSE OF ACTION WHICH IS JOINT IN CHARACTER IS NOT ALLEGED, A
SEPARABLE CONTROVERSY IS PRESENTED.  SEE CULP V. BALDWIN, SUPRA.
WHERE, IN THE ABSENCE OF CLEAR PROOF OF BAD FAITH IN THE JOINDER,
CONCURRENT ACTS OF NEGLIGENCE ON THE PART OF THE DEFENDANTS SUED AS
JOINT TORT-FEASORS ARE SUFFICIENTLY ALLEGED, A SEPARABLE CONTROVERSY IS
NOT PRESENTED AND THE FACT THAT THE DEFENDANTS MIGHT HAVE BEEN SUED
SEPARATELY AFFORDS NO GROUND FOR REMOVAL.  THIS RULE IS APPLIED WHERE A
NON-RESIDENT EMPLOYER AND ITS RESIDENT EMPLOYEE, WHOSE NEGLIGENCE
CAUSED THE INJURY, ARE SUED JOINTLY.  CHESAPEAKE & OHIO RY. CO. V.
DIXON, 179 U.S. 131, 139; ALABAMA GREAT SOUTHERN RY. CO. V. THOMPSON,
200 U.S. 206, 212, 213, 220; CHICAGO, R.I. & P. RY. CO. V. DOWELL, 229
U.S. 102, 111-113; HAY V. MAY COMPANY, 271 U.S. 318, 321, 322; WATSON
V. CHEVROLET MOTOR CO., 68 F.2D 686, 689; HARRELSON V. MISSOURI PACIFIC
TRANSPORTATION CO., 87 F.2D 176, 177. 

IN THE INSTANT CASE, THE ORIGINAL COMPLAINT DID NOT CHARGE ANY
NEGLIGENCE OR WRONGFUL CONDUCT IN EJECTING KASH FROM THE TRAIN.  ON THE
CONTRARY, IT WAS ALLEGED THAT HE WAS INTOXICATED AND WAS ACTING IN AN
OFFENSIVE, THREATENING AND QUARRELSOME MANNER IN WHICH HE PERSISTED
DESPITE REMONSTRANCE.  THERE WAS CLEARLY A SEPARABLE CONTROVERSY WITH
RESPECT TO KASH.  HE WAS SUED FOR HIS UNLAWFUL ASSAULT UPON THE
CONDUCTOR. 

THE NEGLIGENCE CHARGED AGAINST THE SOUTHERN PACIFIC COMPANY AND ITS
GATE TENDER WAS IN THE ACTION OF THE LATTER IN PERMITTING KASH TO ENTER
THE STATION AND GO THROUGH THE GATES TO BOARD THE TRAIN WITHOUT
DISPLAYING HIS TICKET AND WHILE DRUNK AND DISORDERLY.  THE NEGLIGENCE
CHARGED AGAINST THE PULLMAN COMPANY AND ITS PORTER WAS ALLEGED TO
CONSIST IN THE ACTION OF THE PORTER IN PERMITTING KASH TO BOARD THE
PULLMAN SLEEPER.  NO FACTS WERE ALLEGED UPON WHICH LIABILITY OF THE
PULLMAN COMPANY AND ITS EMPLOYEES COULD BE PREDICATED UPON THE
NEGLIGENCE OF THE SOUTHERN PACIFIC COMPANY AND ITS GATE TENDER.  IT WAS
NOT SHOWN THAT EITHER THE PULLMAN COMPANY OR THE SOUTHERN PACIFIC
COMPANY WAS LIABLE FOR THE ACTS OF THE OTHER OR THAT THEY JOINED IN THE
COMMISSION OF ANY WRONG.  WITH RESPECT TO THESE COMPANIES IN RELATION
TO EACH OTHER, THE CASES ABOVE CITED, SO FAR AS THEY HOLD THAT A
SEPARABLE CONTROVERSY IS NOT PRESENTED WHEN MASTER AND SERVANT ARE
JOINED BECAUSE OF CONCURRENT NEGLIGENCE, ARE NOT IN POINT. 

NOR WAS ANY NEGLIGENCE OR WRONGFUL ACT ALLEGED ON THE PART OF THE
PULLMAN CONDUCTOR. 

THE QUESTION, HOWEVER, REMAINS AS TO THE EFFECT OF THE JOINDER OF THE
PULLMAN PORTER.  IF THE PORTER HAD BEEN SUED IN HIS PROPER NAME,
INSTEAD OF JOHN DOE, HAD BEEN DESCRIBED AS A CITIZEN OF CALIFORNIA, AND
HAD BEEN SERVED WITH PROCESS PRIOR TO THE PETITION FOR REMOVAL, THERE
COULD BE NO QUESTION THAT THE PULLMAN COMPANY WOULD NOT HAVE BEEN
ENTITLED TO REMOVE.  CHESAPEAKE & OHIO RY. CO. V. DIXON, SUPRA; ALABAMA
GREAT SOUTHERN RY. CO. V. THOMPSON, SUPRA; HAY V. MAY COMPANY, SUPRA. 

WE THINK THAT THE FACT THAT THE PULLMAN PORTER WAS SUED BY A
FICTITIOUS NAME DID NOT JUSTIFY REMOVAL.  HIS RELATION TO THE PULLMAN
COMPANY AND HIS NEGLIGENCE AS ITS SERVANT WERE FULLY ALLEGED.  SEE
GROSSO V. BUTTE ELECTRIC RY. CO., 217 F. 422.  NOR DOES THE FACT THAT
THE RESIDENCE OF THE PORTER WAS NOT SET FORTH JUSTIFY DISREGARDING
HIM.  IT WAS INCUMBENT UPON THE PULLMAN COMPANY TO SHOW THAT IT HAD A
SEPARABLE CONTROVERSY WHICH WAS WHOLLY BETWEEN CITIZENS OF DIFFERENT
STATES.  AS IN DETERMINING WHETHER THERE WAS SUCH A SEPARABLE
CONTROVERSY WITH RESPECT TO THE PULLMAN COMPANY ITS PORTER COULD NOT BE
IGNORED, THE COMPANY WAS BOUND TO SHOW THAT HE WAS A NON-RESIDENT IN
ORDER TO JUSTIFY REMOVAL. 

AT THE TIME OF THE PETITION FOR REMOVAL THE PULLMAN PORTER HAD NOT
YET BEEN SERVED WITH PROCESS.  WHERE THERE IS A NON-SEPARABLE
CONTROVERSY WITH RESPECT TO SEVERAL NON-RESIDENT DEFENDANTS, ONE OF
THEM MAY REMOVE THE CAUSE, ALTHOUGH THE OTHER DEFENDANTS HAVE NOT BEEN
SERVED WITH PROCESS AND HAVE NOT APPEARED.  TREMPER V. SCHWABACHER, 84
F. 413, 416; BOWLES V. H.J. HEINZ CO., 188 F. 937; HUNT V. PEARCE, 271
F. 498; 284 F. 321, 323, 324; COMMUNITY BUILDING CO. V. MARYLAND
CASUALTY CO., 8 F.2D 678; TROWER V. STONEBRAKER-ZEA CO., 17 F.SUPP. 
687, 690; KELLY V. ALABAMA-QUENELDA CO., 34 F.2D 790, 791.  IN SUCH A
CASE THERE IS DIVERSITY OF CITIZENSHIP, AND THE REASON FOR THE RULE IS
STATED TO BE THAT THE DEFENDANT NOT SERVED MAY NEVER BE SERVED, OR MAY
BE SERVED AFTER THE TIME HAS EXPIRED FOR THE DEFENDANT WHO HAS BEEN
SERVED TO APPLY FOR A REMOVAL, AND UNLESS THE LATTER CAN MAKE AN
EFFECTIVE APPLICATION ALONE, HIS RIGHT TO REMOVAL MAY BE LOST.  HUNT V.
PEARCE, 284 F. P. 324.  BUT THE RULE IS OTHERWISE WHERE A NON-SEPARABLE
CONTROVERSY INVOLVES A RESIDENT DEFENDANT.  IN THAT CASE THE FACT THAT
THE RESIDENT DEFENDANT HAS NOT BEEN SERVED WITH PROCESS DOES NOT
JUSTIFY REMOVAL BY THE NON-RESIDENT DEFENDANT.  PATCHIN V. HUNTER, 38
F. 51, 53; ARMSTRONG V. KANSAS CITY SOUTHERN RY. CO., 192 F. 608, 615;
HUNT V. PEARCE, 271 F. P. 502; DEL FUNGO GIERA V. ROCKLAND LIGHT &
POWER CO., 46 F.2D 552, 554; HANE V. MID-CONTINENT PETROLEUM CORP., 47
F.2D 244, 246, 247.  IT MAY BE SAID THAT THE NON-RESIDENT DEFENDANT MAY
BE PREJUDICED BECAUSE HIS CO-DEFENDANT MAY NOT BE SERVED.  ON THE OTHER
HAND THERE IS NO DIVERSITY OF CITIZENSHIP, AND THE CONTROVERSY BEING A
NON-SEPARABLE ONE, THE NON-RESIDENT DEFENDANT SHOULD NOT BE PERMITTED
TO SEIZE AN OPPORTUNITY TO REMOVE THE CAUSE BEFORE SERVICE UPON THE
RESIDENT CO-DEFENDANT IS EFFECTED.  IT IS ALWAYS OPEN TO THE NON
RESIDENT DEFENDANT TO SHOW THAT THE RESIDENT DEFENDANT HAS NOT BEEN
JOINED IN GOOD FAITH AND FOR THAT REASON SHOULD NOT BE CONSIDERED IN
DETERMINING THE RIGHT TO REMOVE.  WECKER V. NATIONAL ENAMELING CO., 204
U.S. 176, 185, 186; CHESAPEAKE & OHIO RY. CO. V. COCKRELL, 232 U.S.
146, 152; WILSON V. REPUBLIC IRON & STEEL CO., 257 U.S. 92, 97; CLANCY
V. BROWN, 71 F.2D 110, 112, 113. 

IN THE INSTANT CASE THERE WAS NO CHARGE THAT THE JOINDER WAS
FRAUDULENT.  ON THE MOTION TO REMAND IT APPEARED THAT THE PULLMAN
PORTER, IDENTIFIED AS MEYERS, WAS A RESIDENT OF CALIFORNIA AND HAD THEN
BEEN SERVED WITH PROCESS. 

WE CONCLUDE THAT THE DISTRICT COURT ERRED IN DENYING THE MOTION TO
REMAND AND THAT THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD BE
AFFIRMED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

I AGREE THAT IT WAS INCUMBENT UPON THE PULLMAN COMPANY, SEEKING
REMOVAL, TO SHOW THAT IT WAS SUED IN A CONTROVERSY "WHOLLY BETWEEN
CITIZENS OF DIFFERENT STATES"; FN1  THAT THE COMPANY FAILED TO MEET
THIS BURDEN; THAT PLAINTIFF'S JOINING THE PULLMAN COMPANY WITH A
PULLMAN PORTER DESIGNATED BY A FICTITIOUS NAME DID NOT RELIEVE THE
COMPANY OF ITS STATUTORY BURDEN; THAT CONSEQUENTLY THE DISTRICT COURT
ERRED IN DENYING A MOTION TO REMAND, AND THAT THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS, REVERSING THE DISTRICT COURT'S REFUSAL TO
REMAND, SHOULD BE AFFIRMED.  TO CERTAIN PORTIONS OF THE OPINION, WHICH
THIS AFFIRMANCE DOES NOT REQUIRE, I CANNOT AGREE.    FIRST.  THE
ORIGINAL COMPLAINT FILED IN THE STATE COURT INDICATED PLAINTIFF'S
INTENTION TO REST ITS CASE AGAINST THE SOUTHERN PACIFIC COMPANY UPON
THE FEDERAL EMPLOYERS' LIABILITY ACT, UNDER WHICH SUITS BROUGHT IN
STATE COURTS ARE NOT REMOVABLE TO FEDERAL COURTS.  FN2  THE PLEADINGS
DID NOT DISCLOSE THAT THE SUIT WAS BASED ON THE FEDERAL ACT AS CLEARLY
AS GOOD PLEADING REQUIRES, AND THE COMPLAINT WAS DOUBTLESS SUBJECT TO
SPECIAL DEMURRER BECAUSE OF ITS GENERALITY.  BUT THE MERE FACT THAT A
COMPLAINT BASED ON THE FEDERAL ACT IS DEMURRABLE DOES NOT MAKE IT
SUBJECT TO REMOVAL.  IN ADDITION, BOTH AN AMENDMENT FILED IN THE STATE
COURT BEFORE THE ORDER OF REMOVAL (BUT AFTER THE PETITION FOR REMOVAL),
AND A SECOND AMENDMENT FILED AFTER REMOVAL, SERVED TO MAKE THE ORIGINAL
COMPLAINT MORE PRECISE AND MADE CLEAR THE ORIGINAL PURPOSE OF CLAIMING
UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT WITHOUT CHANGING THE
ORIGINAL CAUSE OF ACTION.  "IT IS TRUE THAT THE DECLARATION WAS AMENDED
AFTER THE PETITION TO REMOVE  ...  , BUT THE AMENDMENT IF NOT
UNNECESSARY MERELY MADE THE ORIGINAL CAUSE OF ACTION MORE PRECISE.  ON
THE QUESTION OF REMOVAL WE HAVE NOT TO CONSIDER MORE THAN WHETHER THERE
WAS A REAL INTENTION TO GET A JOINT JUDGMENT AND WHETHER THERE WAS A
COLORABLE GROUND FOR IT SHOWN AS THE RECORD STOOD WHEN THE (PETITION
FOR REMOVAL WAS RULED ON)  ...  WE ARE NOT TO DECIDE WHETHER A FLAW
COULD BE PICKED IN THE DECLARATION ON SPECIAL DEMURRER."  FN3 

BOTH FROM THE ORIGINAL COMPLAINT AND FROM ITS AMENDMENTS IT SEEMS
CLEAR TO ME THAT PLAINTIFF SOUGHT RELIEF UNDER THE FEDERAL EMPLOYERS'
LIABILITY ACT AND THAT THE RULING OF THE COURT OF APPEALS ON THAT
GROUND WAS PROPER. 

SECOND.  THE DISPOSITION OF THIS CASE ON THE GROUND SET OUT IN THE
OPINION DOES NOT REQUIRE THE STATEMENT THAT "IF, AS TO THE NON-RESIDENT
DEFENDANT SEEKING REMOVAL, THE CONTROVERSY IS SEPARABLE WITHIN THE
PURVIEW OF THE STATUTE AS CONSTRUED, THE FACT THAT UNDER THE STATE
PRACTICE IT MAY BE JOINED IN THE SAME SUIT WITH ANOTHER CONTROVERSY AS
AGAINST OTHER DEFENDANTS, DOES NOT PRECLUDE REMOVAL."  NOR DO I AGREE
THAT THIS IS A CORRECT CONSTRUCTION OF THE REMOVAL STATUTE.  THE
STATEMENT IS RESTED ON THE CASE OF BARNEY V. LATHAM, 103 U.S. 205, AND
OPINIONS FROM TWO CIRCUIT COURTS OF APPEALS.  FN4  HOWEVER, THIS COURT
LATER REFUSED TO ACCEPT THE LATHAM CASE AS AUTHORITY FOR THE
PROPOSITION THAT THE STATUTORY RIGHT OF REMOVAL "TAKES NO ACCOUNT OF
...  WHAT MAY BE THE RULES OF PRACTICE, WHETHER COMMON LAW OR
STATUTORY, OF THE STATE IN WHICH THE ACTION MAY BE PENDING"; INSTEAD,
IT HELD EXACTLY THE OPPOSITE.  ALABAMA GREAT SOUTHERN RY. CO. V.
THOMPSON, 200 U.S. 206, (SEE ARGUMENT OF COUNSEL, PAGE 209).  AND IN
CINCINNATI, N.O. & T.P. RY. CO. V. BOHON, 200 U.S. 221, 225,
226(CONSIDERED AND DECIDED WITH THE THOMPSON CASE), THE COURT STATED: 

"WHILE THE CASE DID NOT SHOW AN ATTEMPT TO REMOVE, THE DISCUSSION OF
THE SUBJECT BY THE CHIEF JUSTICE STRONGLY INTIMATES THAT IF THE ACTION
WAS PROPERLY JOINT IN THE FORUM IN WHICH IT WAS BEING PROSECUTED IT
COULD NOT BE REMOVED AS A SEPARABLE CONTROVERSY UNDER THE ACT OF
CONGRESS.  WE HAVE UNDER CONSIDERATION AN ACTION FOR TORT WHICH BY THE
CONSTITUTION AND LAWS OF THE STATE, AS INTERPRETED BY THE HIGHEST COURT
IN THE STATE, GIVES A JOINT REMEDY AGAINST MASTER AND SERVANT TO
RECOVER FOR NEGLIGENT INJURIES.  THIS COURT HAS REPEATEDLY HELD THAT A
SEPARABLE CONTROVERSY MUST BE SHOWN UPON THE FACE OF THE PETITION OR
DECLARATION, AND THAT THE DEFENDANT HAS NO RIGHT TO SAY THAT AN ACTION
SHALL BE SEVERAL WHICH THE PLAINTIFF ELECTS TO MAKE JOINT.  (SEE CASES
CITED IN ALABAMA GREAT SOUTHERN RAILWAY CO. V. THOMPSON, SUPRA.) A
STATE HAS AN UNQUESTIONABLE RIGHT BY ITS CONSTITUTION AND LAWS TO
REGULATE ACTIONS FOR NEGLIGENCE, AND WHERE IT HAS PROVIDED THAT THE
PLAINTIFF IN SUCH CASES MAY PROCEED JOINTLY OR SEVERALLY AGAINST THOSE
LIABLE FOR THE INJURY, AND THE PLAINTIFF IN DUE COURSE OF LAW AND IN
GOOD FAITH HAS FILED A PETITION ELECTING TO SUE FOR A JOINT RECOVERY
GIVEN BY THE LAWS OF THE STATE, WE KNOW OF NOTHING IN THE FEDERAL
REMOVAL STATUTE WHICH WILL CONVERT SUCH ACTION INTO A SEPARABLE
CONTROVERSY FOR THE PURPOSE OF REMOVAL, BECAUSE OF THE PRESENCE OF A
NON-RESIDENT DEFENDANT THEREIN PROPERLY JOINED IN THE ACTION UNDER THE
CONSTITUTION AND LAWS OF THE STATE WHEREIN IT IS CONDUCTING ITS
OPERATIONS AND IS DULY SERVED WITH PROCESS." 

IT WAS THUS BROADLY HELD THAT THERE CAN BE NO OTHER OR SEPARABLE
CONTROVERSY, IF A PLAINTIFF PROPERLY ELECTS UNDER STATE PRACTICE TO SUE
DEFENDANTS JOINTLY.  EVEN A SEPARATE DEFENSE, WHICH MAY DEFEAT A JOINT
RECOVERY, CANNOT CREATE A SEPARABLE CONTROVERSY WHEN THE PLAINTIFF HAS
A RIGHT TO MAKE HIS CAUSE OF ACTION JOINT.  FN5 

IN CASES WHICH HAVE INVOLVED THE RIGHT OF REMOVAL SINCE THE LATHAM
CASE, THIS COURT HAS REPEATEDLY HELD THAT THE "JOINT LIABILITY OF THE
DEFENDANTS (ONE OF WHOM IS A NON-RESIDENT) UNDER THE DECLARATION AS
AMENDED IS A MATTER OF STATE LAW, AND UPON THAT WE SHALL NOT ATTEMPT TO
GO BEHIND THE DECISION OF THE HIGHEST COURT OF THE STATE BEFORE WHICH
THE QUESTION COULD COME."  FN6 

ONLY TWO CIRCUIT COURTS OF APPEALS HAVE HELD THAT CAUSES OF ACTION
PROPERLY JOINED UNDER STATE PRACTICE MAY NEVERTHELESS BE SEPARABLE FOR
PURPOSES OF REMOVAL; OTHER CIRCUITS HAVE FOLLOWED THE DECISIONS OF THIS
COURT.  FN7  CASES FROM THE TWO CIRCUITS ARE RELIED UPON TO SUPPORT THE
LANGUAGE IN THE OPINION OF THE COURT TO WHICH I CANNOT AGREE.  FN8
HOWEVER, THE CASES RELIED UPON FROM ONE OF THESE TWO CIRCUITS NO LONGER
APPEAR TO REPRESENT THE RULE EVEN IN THAT CIRCUIT.  FN9  AND THE LONE
CASE IN THE OTHER OF THE TWO CIRCUITS WAS CONTRARY TO AND DECIDED
BEFORE THE MOST RECENT DECISIONS OF THIS COURT ON THE SUBJECT.  FN10 

THIRD.  IT IS, OF COURSE, TRUE THAT WHERE GOVERNING STATE LAW
CHARACTERIZES ACTIONABLE NEGLIGENCE OF A LOCAL AND A NON-RESIDENT
DEFENDANT AS "CONCURRENT NEGLIGENCE," THERE CAN BE NO RIGHT OF
REMOVAL.  HOWEVER, THIS IS BUT ONE APPLICATION OF THE RULE GOVERNING
REMOVALS UNDER WHICH WE LOOK TO STATE LAW TO DETERMINE THE PROPRIETY OF
JOINING TWO OR MORE DEFENDANTS IN A SINGLE SUIT.  FN11  THE OPINION IN
THE THOMPSON CASE, SUPRA, WAS EXPRESSLY DESIGNED TO RESOLVE THE
"CONFLICT IN THE AUTHORITIES AS TO WHETHER A CORPORATION, WHOSE
LIABILITY DOES NOT ARISE FROM AN ACT OF CONCURRENCE OR DIRECTION ON ITS
PART, BUT SOLELY AS A RESULT OF THE RELATION OF MASTER AND SERVANT, MAY
BE JOINTLY SUED WITH THE SERVANT WHOSE NEGLIGENT CONDUCT DIRECTLY
CAUSED THE INJURY."  (AT PP. 213, 214).  THE QUESTION SUBMITTED FOR
DECISION IN THAT CASE WAS (PP. 212, 213):  "MAY A RAILROAD CORPORATION
BE JOINTLY SUED WITH TWO OF ITS SERVANTS  ...  THOUGH  ...  NOT CHARGED
WITH ANY CONCURRENT ACT OF NEGLIGENCE?"  THIS COURT GAVE AN AFFIRMATIVE
ANSWER. 

THE PRINCIPLE HAS BEEN WELL STATED BY THE CIRCUIT COURT OF APPEALS OF
THE SECOND CIRCUIT: 

"APPELLEES CONTEND THAT REMOVAL IS PREVENTED ONLY WHERE A MASTER AND
SERVANT ARE CHARGED WITH CONCURRENT NEGLIGENCE.  THE RULE IS SETTLED
OTHERWISE.  IN ALABAMA GREAT SO. RY. CO. V. THOMPSON, SUPRA, AND
CINCINNATI, N.O. & TEXAS PAC. RY. V. BOHON, SUPRA, THE MASTER WAS
ALLEGED TO BE LIABLE ON THE DOCTRINE OF RESPONDEAT SUPERIOR.  IT IS
IMMATERIAL THAT THE LIABILITY OF THE MASTER AND THAT OF THE SERVANT
PROCEED ON DIFFERENT GROUNDS; EVEN MORE DISTINCT WERE THE BASES OF
LIABILITY OF THE LESSEE AND LESSOR RAILROAD COMPANIES IN CHICAGO, B. &
Q. RY. CO. V. WILLARD,  ...  (220 U.S. 413) WHERE THE LESSOR WAS HELD
ON ITS OBLIGATION TO THE PUBLIC OF WHICH IT COULD NOT BE RELIEVED BY
VIRTUE OF A LEASE.  ...  NOTHING IN HAY V. MAY DEPARTMENT STORES CO.,
271 U.S. 318, ...  SUPPORTS THE CLAIM THAT THE RULE OF NONREMOVABILITY
IS LIMITED TO INSTANCES OF CONCURRENT NEGLIGENCE."  FN12 

THE CONSTITUTION AUTHORIZES CONGRESS TO FIX THE JURISDICTION OF
FEDERAL DISTRICT COURTS.  THE CONSTITUTIONAL DIVISION OF POWERS BETWEEN
THE STATES AND THE NATIONAL GOVERNMENT MAKES IT NECESSARY THAT THE
JURISDICTIONAL POLICY DECLARED BY CONGRESS BE SCRUPULOUSLY OBSERVED. 
THIS IS ESPECIALLY SO IN VIEW OF THE FACT THAT AFTER REMOVAL OF A CAUSE
FROM A STATE COURT BY REASON OF DIVERSITY OF CITIZENSHIP, THE FEDERAL
COURT MUST PROCEED UNDER STATE LAW AND PRACTICE.  QUESTIONS OF STATE
CONSTITUTIONAL, STATUTORY AND GENERAL LAW, WHICH HAVE NOT BEEN CLEARLY
AND FINALLY DETERMINED BY THE STATE'S HIGHEST COURT, MAY ARISE IN THE
FEDERAL COURT.  THE STATE COURT NEED NOT THEREAFTER, IN OTHER
LITIGATION, FOLLOW THE FEDERAL COURT'S DECISION ON SUCH QUESTIONS. 
HOWEVER, CASES FOR WHICH CONGRESS HAS NOT AUTHORIZED REMOVAL FROM A
STATE COURT CAN BE APPEALED TO THE STATE'S HIGHEST JUDICIAL TRIBUNAL,
THUS GIVING EACH LITIGANT A FINAL DETERMINATION OF HIS RIGHTS UNDER
STATE LAWS BY THE BODY VESTED WITH FINAL AUTHORITY TO INTERPRET THOSE
LAWS.  RIGHTS AND PRIVILEGES UNDER THE FEDERAL CONSTITUTION AND LAWS,
WHICH MAY BE INVOLVED IN SUCH LITIGATION IN A STATE COURT, CAN STILL BE
PROTECTED BY APPEAL TO THIS COURT. 

THE STATUTORY PRIVILEGE OF REMOVAL SHOULD BE PROTECTED.  BUT I DO NOT
BELIEVE THAT JUDICIAL CONSTRUCTION SHOULD EXPAND THE STATUTORY
PRIVILEGE BEYOND LIMITS INTENDED BY THE STATUTE AND PROPERLY RECOGNIZED
BY THIS COURT IN PREVIOUS DECISIONS.  PARTICULARLY, I THINK IT UNWISE
TO INDICATE THIS STEP IN A CASE IN WHICH DECISION AND JUDGMENT DO NOT
REQUIRE DISCUSSION OF THE QUESTION. 

FN1  C. 3, SEC. 71, 28 U.S.C. 

FN2  C. 2, SEC. 51, SEC. 56, 45 U.S.C. 

FN3  CHICAGO, R.I. & P. RY. CO. V. SCHWYHART, 227 U.S. 184, 194. 

FN4  NICHOLS V. CHESAPEAKE & OHIO RY. CO. (CCA 6TH, DECIDED 1912),
195 F. 913; STEWART V. NEBRASKA TIRE & RUBBER CO. (CCA 8TH, DECIDED
1930), 39 F.2D 309; DES MOINES ELEVATOR & GRAIN CO. V. UNDERWRITERS'
GRAIN ASSN. (CCA 8TH, DECIDED 1933), 63 F.2D 103; CULP V. BALDWIN (CCA
8TH, DECIDED 1937), 87 F.2D 679(BUT SEE 679-80). 

FN5  PIRIE V. TVEDT, 115 U.S. 41; POWERS V. CHESAPEAKE & OHIO RY.
CO., 169 U.S. 92, 97; CHICAGO, B. & Q. RY. CO. V. WILLARD, 220 U.S.
413. 

FN6  CHICAGO, R.I. & P. RY. CO. V. SCHWYHART, SUPRA, AT 193(DECIDED
1913); SOUTHERN RY. CO. V. MILLER, 217 U.S. 209, 215, 216(DECIDED
1910); "THE SUPREME COURT OF THE STATE DECIDED THAT THE PETITION STATED
A CAUSE OF ACTION AGAINST DRAKE AND THE RAILWAY COMPANY, AND WHETHER IT
DID, WE SAID IN CHICAGO, ROCK ISLAND & PACIFIC RY. V. SCHWYHART, 227
U.S. 184, WAS A MATTER OF STATE LAW."  CHICAGO, R.I. & P. RY. CO. V.
WHITEAKER, 239 U.S. 421, 424(DECIDED 1915); CHICAGO & ALTON R. CO. V.
MCWHIRT, 243 U.S. 422(DECIDED 1917). 

FN7  IN NORWALK V. AIR-WAY ELECTRIC APPLIANCE CORP., 87 F.2D 317,
319, THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT HELD THAT
"WHETHER A SEPARABLE CONTROVERSY EXISTS FOR THE PURPOSE OF REMOVAL IS
DETERMINED BY STATE LAW," CITING THE BOHON CASE AND THE MCWHIRT CASE,
SUPRA.  TO THE SAME EFFECT ARE, JOHNSON V. NOBLE, 64 F.2D 396, 398,
PADGETT V. CHICAGO, R.I. & P. RY. CO., 54 F.2D 576, 577, AND
CENTERVILLE STATE BANK V. NATIONAL SURETY CO., 37 F.2D 338(CCA 10TH);
GULF REFINING CO. V. MORGAN, 61 F.2D 80, 81(CCA 4TH); SEE BREYMANN V.
PENNSYLVANIA, O. & D.R. CO., 38 F.2D 209(CCA 6TH); OPINION OF
HUTCHESON, CIRCUIT JUDGE, IN LAKE V. TEXAS NEWS CO., 51 F.2D 862,
863(S.D. TEXAS); AND WACO V. U.S. FIDELITY & G. CO., 76 F.2D 470,
471(CCA 5TH). 

FN8  SEE NOTE 4, SUPRA. 

FN9  OTHER CASES IN THE EIGHTH CIRCUIT THROW SOME DEGREE OF DOUBT ON
THE STEWART AND GRAIN CO. CASES, SUPRA, AND INDICATE A DISPOSITION TO
DETERMINE WHETHER LIABILITY OF A DEFENDANT UNDER ALLEGATIONS OF A
COMPLAINT IS JOINT OR SEVERABLE BY REFERENCE TO STATE LAW.  SEE,
HARRELSON V. MISSOURI PACIFIC TRANSPORTATION CO., 87 F.2D 176, 178;
HUFFMAN V. BALDWIN, 82 F.2D 5, 8; WATSON V. CHEVROLET MOTOR CO., 68
F.2D 686, 688, 689.  AFTER THE DECISION OF THIS COURT IN ERIE R. CO. V.
TOMPKINS, 304 U.S. 64, THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
CIRCUIT SEEMINGLY WAS OF OPINION (1938) THAT THE QUESTION OF "JOINT
LIABILITY AND OF THE BEARING THEREOF ON THE QUESTION OF REMOVABILITY"
MUST BE DETERMINED BY THE LAW OF THE STATE.  ERVIN V. TEXAS CO., 97
F.2D 806, 809. 

FN10  THE NICHOLS CASE, SUPRA, IN THE SIXTH CIRCUIT, WAS DECIDED IN
1912; THE SCHWYHART CASE, THE WHITEAKER CASE, AND THE MCWHIRT CASE, IN
THIS COURT, WERE DECIDED IN 1913, 1915, AND 1917, RESPECTIVELY (SEE
NOTE 6). 

FN11  SEE, CHESAPEAKE & OHIO R. CO. V. DIXON, 179 U.S. 131, 140;
ALABAMA GREAT SOUTHERN RY. CO. V. THOMPSON, SUPRA, 220; CHICAGO, R.I. &
P. RY. CO. V. DOWELL, 229 U.S. 102, 112, 113. 

FN12  NORWALK V. AIR-WAY ELECTRIC APPLIANCE CORP., SUPRA, 319. 
..END :














ALTON R. CO. V. ILLINOIS COMM'N, 305 U.S. 548 


NO. 231.  ARGUED DECEMBER 15, 16, 1938.  - DECIDED JANUARY 16, 1939.  -
368 ILL. 584 - 15 N.E.2D 508, AFFIRMED. 


1.  A MOTION TO DISMISS OR AFFIRM WILL BE OVERRULED WHERE, AFTER
ARGUMENT, IT APPEARS THAT THE QUESTION PRESENTED IS NOT SO CLEARLY
LACKING IN MERIT THAT IT MAY BE PUT ASIDE ON MERE CITATION OF EARLIER
DECISIONS.  P. 550. 

2.  A RAILROAD COMPANY, IN ILLINOIS, WHICH HAS LONG OPERATED, AND
MAINTAINED AT ITS OWN COST, A SWITCH TRACK LEADING FROM ITS MAIN LINE
TO INDUSTRIAL PLANTS, IS NOT DEPRIVED OF PROPERTY WITHOUT DUE PROCESS
BY AN ORDER OF THE STATE REQUIRING IT TO CONTINUE THE UP-KEEP, WHERE,
THOUGH CONSTRUCTED AT THE EXPENSE OF THE INDUSTRIES, ON LAND IN THEIR
OWNERSHIP, THE TRACK CROSSES PUBLIC THOROUGHFARES AND, UNDER THE LAW OF
THE STATE, CONSTITUTES A PART OF THE RAILROAD SYSTEM WHICH, WITH ANY
EXTENSIONS, MAY BE USED TO SERVE OTHER SHIPPERS AND THE PUBLIC AT
LARGE.  P. 553. 

ALTON RAILROAD CO. V. ILLINOIS COMMERCE COMMISSION ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

APPEAL FROM A JUDGMENT SUSTAINING AN ORDER OF THE COMMISSION
REQUIRING THE RAILROAD COMPANY TO CONTINUE MAINTENANCE AND OPERATION OF
A SWITCH TRACK.  THE CASE WENT BY APPEAL FROM THE COMMISSION TO A
CIRCUIT COURT, WHICH ALSO SUSTAINED THE ORDER. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER AN ORDER MADE BY THE COMMISSION, DENYING
APPELLANT'S APPLICATION FOR AUTHORITY TO DISCONTINUE, AND REQUIRING IT
TO CONTINUE, MAINTENANCE AND OPERATION OF A SWITCH TRACK IN CHICAGO
USED TO SERVE SHIPPERS, DEPRIVES IT OF ITS PROPERTY IN VIOLATION OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  SPECIFICALLY,
APPELLANT MAINTAINS THAT BY COMPELLING IT TO EXPEND ITS FUNDS FOR THE
UPKEEP OF A TRACK NOT CONSTRUCTED OR OWNED BY IT AND UPON LAND IT DOES
NOT OWN, THE ORDER IS REPUGNANT TO THAT PROVISION OF THE CONSTITUTION. 
THE ILLINOIS SUPREME COURT, AFFIRMING THE CIRCUIT COURT OF COOK COUNTY,
SUSTAINED THE ORDER AS A VALID EXERCISE OF STATE POWER.  368 ILL. 584;
15 N.E.2D 508. 

APPELLEES, INSISTING THAT OUR DECISIONS RULE THAT QUESTION IN THEIR
FAVOR, FILED A MOTION TO DISMISS OR AFFIRM* .  WE POSTPONED
CONSIDERATION OF THE MOTION TO THE ARGUMENT OF THE CASE ON THE MERITS. 
NOW AFTER HEARING COUNSEL IT APPEARS THAT THE QUESTION PRESENTED BY THE
APPEAL IS NOT SO CLEARLY LACKING IN MERIT THAT UPON MERE CITATION OF
OUR DECISIONS IT MAY BE PUT ASIDE AS NOT REQUIRING FURTHER
CONSIDERATION.  WE THEREFORE DENY THE MOTION.  MILHEIM V. MOFFAT TUNNEL
DIST., 262 U.S. 710, 716, 717.  HAMILTON V. REGENTS, 293 U.S. 245,
258. 

*APPELLEES REST THEIR MOTION TO DISMISS OR AFFIRM ON:  UNION LIME CO.
V. CHICAGO & N.W. RY. CO., 233 U.S. 211.  LAKE ERIE & W.R. CO. V.
PUBLIC UTILITIES COMM'N, 249 U.S. 422.  CHICAGO & N.W. RY. CO. V. OCHS,
249 U.S. 416.  WESTERN & ATLANTIC RAILROAD V. PUBLIC SERVICE COMM'N,
267 U.S. 493, 496. 

THROUGH PURCHASERS AT JUDICIAL SALE JULY 18, 1931, APPELLANT ACQUIRED
THE PROPERTIES OF THE CHICAGO & ALTON RAILROAD COMPANY, A CONSOLIDATED
COMPANY FORMED IN 1906 AND IN RECEIVERSHIP FROM 1922 TO THE SALE.  IT
AND ITS PREDECESSORS, INCLUDING THE RECEIVER, MAY FOR BREVITY BE
REFERRED TO AS THE CARRIER. 

THE SWITCH TRACK IN QUESTION EXTENDS FROM THE CARRIER'S MAIN LINE
ABOUT 150 FEET ON THE RIGHT-OF-WAY, THENCE 2,681 FEET, CROSSING PUBLIC
STREETS AND ALLEYS, TO THE BOUNDARY OF THE PLANT OF THE PEOPLES GAS
LIGHT & COKE COMPANY UPON LAND LARGELY, IF NOT WHOLLY, OWNED BY THAT
COMPANY AND THE OTHER INDUSTRIES SERVED BY THE TRACK.  THE INDUSTRIES,
COMMENCING WITH THE ONE NEAREST THE MAIN LINE, ARE COMMONWEALTH EDISON
COMPANY, E. HELDMAIER, INC., MOULDING-BROWNELL CORP., AND THE GAS
COMPANY.  ALL BUT THE FIRST DEPEND UPON THE TRACK FOR RAIL
TRANSPORTATION.  IT HAS BEEN EXTENDED FOR SOME DISTANCE INTO THE PLANT
OF THE GAS COMPANY.  FIVE SPURS, THAT APPROPRIATELY MAY BE CALLED
PRIVATE SIDINGS, EXTEND FROM IT AND SERVE WITHIN THE PLANTS OF THE
INDUSTRIES.  THERE IS HERE NO QUESTION AS TO THE PART OF THE TRACK
WITHIN THE GAS PLANT OR OF THE SPURS SERVING THE INDUSTRIES. 
CONSTRUCTION WAS BEGUN PRIOR TO 1884, AND AT LEAST SINCE 1887 THE
STRETCH HERE IN QUESTION HAS BEEN USED TO SERVE THE GAS COMPANY, AND
FOR MORE THAN 30 YEARS OTHER INDUSTRIES BETWEEN THAT COMPANY'S PLANT
AND THE MAIN LINE.  THE ORIGINAL COST OF CONSTRUCTION WAS BORNE BY THE
GAS COMPANY AND POSSIBLY OTHER INDUSTRIES.  IT DOES NOT APPEAR BY WHOM
THE COST OF MAINTENANCE PRIOR TO 1904 WAS PAID. 

PURSUANT TO ORDINANCE PASSED NOVEMBER 2, 1903, A PART OF THE TRACK
WAS ELEVATED AT CROSSINGS OF THREE STREETS AND TWO INTERVENING ALLEYS. 
NOVEMBER 1, 1904, THE CARRIER MADE AN AGREEMENT WITH THE GAS COMPANY
AND THE PREDECESSOR OF THE ELECTRIC COMPANY PURSUANT TO WHICH THEY PAID
THE COST OF ELEVATION.  THE GAS COMPANY AGREED TO PAY AN ANNUAL FEE OF
$300 IMPOSED BY THE ORDINANCE FOR THE PRIVILEGE OF MAINTAINING THE
TRACK ACROSS THE STREETS AND ALLEYS.  THE CARRIER AGREED TO MAINTAIN
THE TRACK.  AND, BY AN ASSIGNMENT RECITING THAT THE ORDINANCE HAD BEEN
OBTAINED FOR THEIR BENEFIT, THE CARRIER TRANSFERRED IT TO THE GAS AND
ELECTRIC COMPANIES.  THE GAS COMPANY PAID THE FEES UNTIL THE 1903
ORDINANCE EXPIRED NOVEMBER 2, 1923.  THEN IT AND THE ELECTRIC COMPANY
INSISTED THAT FUTURE EXACTIONS BY THE CITY AS WELL AS MAINTENANCE
SHOULD BE BORNE BY THE CARRIER.  THE LATTER REFUSED TO ACCEPT THE
ADDITIONAL BURDEN.  DECEMBER 10, 1924, THE CITY PASSED AN ORDINANCE
AUTHORIZING USE OF THE STREETS FOR 20 YEARS FROM EXPIRATION OF THE 1903
ORDINANCE, INCREASED THE ANNUAL FEE TO $1,400, AND REQUIRED A BOND TO
INSURE COMPLIANCE.  THE CARRIER ACCEPTED THE TERMS OF THE ORDINANCE,
HAVING AN UNDERSTANDING WITH THE GAS AND ELECTRIC COMPANIES THAT THEY
WOULD PAY THE CHARGES.  NEVERTHELESS, IT PAID $1,400 ANNUALLY FROM 1923
TO 1932 AND WAS REIMBURSED ONLY TO THE EXTENT OF $300 PAID BY THE GAS
COMPANY FOR EACH OF THREE YEARS IN THAT PERIOD.  AS OF NOVEMBER 2, 1932
THE ANNUAL FEE WAS REDUCED TO $700, AND APPELLANT PAID IT UP TO
NOVEMBER 2, 1936.  THE CARRIER BORE THE COST OF MAINTAINING THE TRACK
FROM 1904 TO MARCH 26, 1936.  ON THAT DATE, EXERCISING AS IT ASSERTS A
RIGHT RESERVED BY FINAL DECREE IN THE RECEIVERHIP PROCEEDING, IT
ELECTED NOT TO ASSUME THE CONTRACT.  NEVERTHELESS, IT HAS CONTINUED TO
USE AND MAINTAIN THE TRACK.  THUS SINCE 1903 THE CARRIER, IN ADDITION
TO MAINTAINING THE TRACK, HAS PAID $15,190 TO THE CITY AS COMPENSATION
FOR ITS OCCUPANCY OF THE PUBLIC STREETS AND ALLEYS.  THROUGH ERROR AS
IT SAYS, IT PAID TAXES ON THE TRACK FOR SOME OF THE TIME. 

NEEDED REPAIRS AND BETTERMENTS OF THE TRACK INVOLVED WILL REQUIRE
EXPENDITURES AMOUNTING TO ABOUT $4,000 A YEAR FOR THREE YEARS; THEN
ANNUAL COST OF MAINTENANCE WILL BE ABOUT $1,000.  IT MAY BE ASSUMED
THAT, IN ORDER TO CONTINUE OPERATION, APPELLANT WILL HAVE TO PAY
WHATEVER FEES ARE CHARGED BY THE CITY, AND THAT, BECAUSE THE TRACK IS
ON LAND NOT OWNED BY IT, ITS EXPENDITURES FOR ADDITIONS AND BETTERMENTS
MUST, AS IT ASSERTS, BY ACCOUNTING REGULATIONS BE CHARGED TO OPERATING
EXPENSES.  THE ANNUAL GROSS REVENUE FOR TRANSPORTATION OVER THE TRACK
AMOUNTS TO ABOUT $40,000. 

APPELLANT DOES NOT SUGGEST THAT OPERATING EXPENSES INCLUDING THE CITY
CHARGES, PLUS COST OF REPLACEMENTS AND BETTERMENTS, WILL EXCEED REVENUE
DERIVED FROM USE OF THE TRACK OR THAT OPERATION OF THE TRACK WILL NOT
YIELD IT A REASONABLE PROFIT; NOR DOES IT CLAIM, AS OF CONSTITUTIONAL
RIGHT, TO BE ENTITLED TO HAVE ANY PROFIT FROM USE OF THE SWITCH TRACK
SEPARATELY CONSIDERED.  PUGET SOUND TRACTION CO. V. REYNOLDS, 244 U.S.
574, 580.  FORT SMITH LIGHT & TRACTION CO. V. BOURLAND, 267 U.S. 330,
332.  WESTERN & ATLANTIC RAILROAD V. PUBLIC SERVICE COMM'N, 267 U.S.
493, 496-497.  ADMITTEDLY, APPELLANT IS WILLING TO CONTINUE TO USE THE
TRACK TO SERVE THE INDUSTRIES.  ITS PETITION PRAYS AN ORDER REQUIRING
THEM TO PAY COST OF MAINTENANCE AND FUTURE CITY CHARGES.  IT SEEKS
AUTHORITY TO DISCONTINUE SERVICE AND TO CANCEL APPLICABLE RATES, BUT
ONLY IN CASE OF FAILURE OF THE INDUSTRIES TO PAY THESE OPERATING
EXPENSES.  IT WANTS, NOT TO GIVE UP THE TRAFFIC, BUT TO SHIFT A
SUBSTANTIAL FINANCIAL BURDEN THAT IT HAS LONG BEEN BEARING TO THE
INDUSTRIES SERVED. 

THE STATE SUPREME COURT HELD:  AS BETWEEN THE PUBLIC AND THE
RAILROAD, A SWITCH TRACK BUILT FOR INDUSTRIAL PURPOSES AND ACROSS
PUBLIC THOROUGHFARES BECOMES A PART OF THE MAIN LINE OF THE SYSTEM
WHICH IT JOINS AND IS SUBJECT TO GOVERNMENTAL REGULATION IN THE PUBLIC
INTEREST, EVEN THOUGH IT WAS BUILT BY PRIVATE FUNDS AND FOR THE MOST
PART ON PRIVATE PROPERTY; APPELLANT USES THE SWITCH TRACK IN QUESTION
FOR ITS OWN BENEFIT TO SERVE INDUSTRIES LOCATED ON IT AND MAY USE IT
AND EXTENSIONS OF IT TO SERVE OTHER SHIPPERS AND THE PUBLIC AT LARGE;
THE PUBLIC HAS AN INTEREST QUITE APART FROM THAT OF THE PARTIES TO THE
SUIT IN THE MAINTENANCE OF THE TRACK; THE STATE PUBLIC UTILITY ACT,
SEC. 50, IS BROAD ENOUGH TO IMPOSE UPON A RAILROAD DUTY TO MAINTAIN THE
PROPERTY WHICH IT USES FOR ITS OWN BENEFIT AS WELL AS THAT TO WHICH IT
HAS TITLE; THE COMMISSION HAS AMPLE POWER TO ENFORCE THAT DUTY AND THE
ORDER DOES NOT VIOLATE ANY PROVISION OF THE STATE OR FEDERAL
CONSTITUTIONS. 

WE HAVE HELD:  THE USES FOR WHICH A TRACK WAS DESIRED ARE NOT THE
LESS PUBLIC BECAUSE THE MOTIVE WHICH DICTATED ITS LOCATION WAS TO REACH
A PRIVATE INDUSTRY, OR BECAUSE THE PROPRIETORS OF THAT INDUSTRY
CONTRIBUTED TO THE COST.  HAIRSTON V. DANVILLE & WESTERN RY. CO., 208
U.S. 598, 608.  THE STATE, CONSISTENTLY WITH THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT, MAY EMPOWER A COMMON CARRIER BY RAILROAD TO
CONDEMN A RIGHT-OF-WAY FOR A SPUR LEADING TO A SINGLE INDUSTRY TO BE
OPERATED UNDER OBLIGATIONS OF PUBLIC SERVICE OPEN TO ALL AND DEVOTED TO
PUBLIC USE.  UNION LIME CO. V. CHICAGO & N.W. RY. CO., 233 U.S. 211,
222.  IT MAY COMPEL A RAILROAD TO EXTEND A SIDING TO AN ADJACENT
INDUSTRY SO AS TO PROVIDE ADDITIONAL TRACKAGE FOR PUBLIC USE AND, IF
NECESSARY, TO CONDEMN A RIGHT-OF-WAY.  CHICAGO & N.W. RY. CO. V. OCHS,
249 U.S. 416, 419.  FOR SIMILAR EXERTIONS OF STATE POWER, SEE LAKE ERIE
& W.R. CO. V. PUBLIC UTILITIES COMM'N, 249 U.S. 422, 424 AND WESTERN &
ATLANTIC RAILROAD V. PUBLIC SERVICE COMM'N, SUPRA. 

THE DECISION OF THE STATE SUPREME COURT IN THIS CASE MUST HERE BE
HELD CONCLUSIVELY TO ESTABLISH THAT UNDER THE CONSTITUTION AND LAWS OF
ILLINOIS THE ORDER IS VALID.  THE DECISIONS OF THIS COURT ABOVE CITED
LEAVE NO DOUBT AS TO THE POWER OF THE STATE TO REQUIRE A COMMON CARRIER
BY RAILROAD TO CONDEMN RIGHTS-OF-WAY FOR AND TO CONSTRUCT SWITCH TRACKS
LIKE THE ONE HERE INVOLVED.  SO FAR AS CONCERNS DECISION OF THIS CASE,
IT MATTERS NOT WHETHER ILLINOIS HAS EXERTED THAT POWER, FOR THE TRACK
HAS BEEN LAID AND IS BEING USED BY THE CARRIER.  THE REQUIRED
MAINTEANCE AND OPERATION ARE NOT BEYOND THE SCOPE OF THE CARRIER'S
UNDERTAKING TO SERVE THE PUBLIC.  UNION LIME CO. V. CHICAGO & N.W. RY.
CO., SUPRA.  CHICAGO & N.W. RY. CO. V. OCHS, SUPRA. 

ASSUMING THAT THE QUESTIONS WHETHER THE SWITCH TRACK IS OPEN TO
PUBLIC USE AND HAS BECOME A PART OF THE MAIN LINE ARE SO RELATED TO THE
CONSTITUTIONAL ISSUE HERE PRESENTED THAT THE STATE COURT'S
DETERMINATION OF THEM IS NOT BINDING UPON THIS COURT, WE ARE OF OPINION
THAT, UPON THE FACTS ALLEGED IN APPELLANT'S PETITION TO THE COMMISSION,
THE LATTER'S UNCHALLENGED FINDINGS, AND OUR DECISIONS IN SIMILAR CASES,
IT IS CLEAR THAT IN POINT OF FACT AND LAW THE SWITCH TRACK AND ANY
EXTENSIONS OF IT THAT MAY BE MADE ARE OPEN TO USE TO SERVE THE PUBLIC
AND CONSTITUTE A PART OF THE CARRIER'S SYSTEM. 

ASSERTING THAT THE DUTY TO MAINTAIN A TRACK SUCH AS THAT IN QUESTION
NORMALLY RESULTS FROM OWNERSHIP, APPELLANT EARNESTLY INSISTS THAT THE
ORDER IS SHOWN TO BE UNREASONABLE BY THE FACT THAT RAILS AND OTHER
MATERIALS PURCHASED AND OWNED BY IT WHEN PUT INTO THE TRACK IMMEDIATELY
CEASE TO BELONG TO IT AND BECOME THE PROPERTY OF THE GAS COMPANY WHICH,
APPELLANT SAYS, RETAINS RIGHT OF OWNERSHIP IN THE TRACK.  BUT, IN
MAKING THAT AND SIMILAR ARGUMENTS, APPELLANT IGNORES THE DECISIONS IN
THIS CASE OF THE COMMISSION, THE STATE SUPREME COURT, AND AS WELL THE
RULING OF THIS COURT JUST INDICATED, TO THE EFFECT THAT THE TRACK IN
QUESTION IS ONE BUILT FOR INDUSTRIAL PURPOSES ON AND ACROSS PUBLIC
THOROUGHFARES; A TRACK THAT HAS BECOME A PART OF THE MAIN LINE OF THE
CARRIER'S SYSTEM AND, THOUGH CONSTRUCTED WITHOUT COST TO IT ON LANDS
OWNED BY OTHERS, IS OPEN TO PUBLIC USE; A TRACK WHICH HAS LONG BEEN AND
IS BEING USED BY THE CARRIER FOR ITS OWN BENEFIT AND BY IT MAY BE USED
WITH EXTENSIONS IF ANY SHALL BE MADE, TO SERVE THE PUBLIC AT LARGE. 

APPELLANT DOES NOT SUGGEST THAT AS AGAINST THE OWNERS OF THE LAND OR
THOSE WHO PAID FOR BUILDING THE TRACK, IT IS A TRESPASSER OR WITHOUT
RIGHT TO CONTINUE TO MAINTAIN AND OPERATE THE TRACK AS REQUIRED BY THE
ORDER.  NOR DOES IT SAY THAT, BY EXERTION OF THE POWER OF EMINENT
DOMAIN, IT MAY NOT SUCCESSFULLY RESIST DEMANDS OF CLAIMANTS OR OWNERS
FOR POSSESSION OF ANY PART OF THE LAND OR OF THE TRACK NOT OWNED BY IT.
SEE MAPES V. VANDALIA RAILROAD CO., 238 ILL. 142, 145; 87 N.E. 393;
BLACK V. CHICAGO, B. & Q.R. CO., 243 ILL. 534, 539; 90 N.E. 1075;
ROBERTS V. NORTHERN PACIFIC R. CO., 158 U.S. 1, 11; NORTHERN PACIFIC R.
CO. V. SMITH, 171 U.S. 260, 271. 

IF, AS SUGGESTED, EXPENDITURES FOR NEEDED BETTERMENTS, AS WELL AS
THOSE FOR MAINTENANCE, ARE CHARGEABLE TO OPERATING EXPENSES, ALL ARE
RETURNABLE TO THE CARRIER, OUT OF OPERATING REVENUE, AS A PART OF THE
COST OF MAINTENANCE AND USE.  AND, IF APPELLANT ACQUIRES TITLE TO THE
LAND AND TRACK, THEN ADDITIONS AND BETTERMENTS MADE BY IT WILL
CONSTITUTE A PART OF ITS INVESTMENT IN ROAD AND EQUIPMENT OWNED AND
USED FOR ITS PURPOSES AS A COMMON CARRIER AND, BY THE DUE PROCESS
CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS, SAFEGUARDED AGAINST
CONFISCATION. 

IT IS CLEAR THAT ENFORCEMENT OF THE ORDER WILL NOT TAKE APPELLANT'S
PROPERTY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.  AFFIRMED. 

MR. JUSTICE BLACK IS OF OPINION THAT THE MOTION TO DISMISS SHOULD BE
GRANTED.    MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :








UNITED STATES V. POWERS, 305 U.S. 527 


NO. 102.  ARGUED NOVEMBER 18, 1938.  - DECIDED JANUARY 9, 1939.  - 94
F.2D 783, AFFIRMED. 


1.  THE TREATY OF MAY 7, 1868, BETWEEN THE UNITED STATES AND THE CROW
INDIANS, WHICH ESTABLISHED THEIR RESERVATION AND CONTEMPLATED
SETTLEMENT IN SEVERALTY AND FARMING BY INDIVIDUAL INDIANS, OPERATED BY
IMPLICATION TO RESERVE THE WATERS WITHIN THE RESERVATION FOR THE EQUAL
BENEFIT OF TRIBAL MEMBERS.  WINTERS V. UNITED STATES, 207 U.S. 564. 
PP. 528-532. 

2.  ALLOTTEES AND THEIR GRANTEES ACQUIRED THE RIGHT TO USE SOME
PORTION OF THE TRIBAL WATERS ESSENTIAL FOR CULTIVATION.  ID. 

SUBSEQUENT ACTS, CITED IN THE OPINION, DO NOT DENY TO ALLOTTEES
PARTICIPATION IN THE USE OF WATERS ESSENTIAL TO FARMING AND HOME
MAKING.  IF POSSIBLE, LEGISLATION SUBSEQUENT TO THE TREATY MUST BE
INTERPRETED IN HARMONY WITH ITS PLAIN PURPOSES. 

3.  THE GENERAL ALLOTMENT ACT OF 1887 RECOGNIZES EQUAL RIGHTS IN
DISTRIBUTION OF WATER AMONG INDIANS RESIDENT ON RESERVATIONS, AND
AUTHORIZES THE SECRETARY OF THE INTERIOR BY REGULATIONS TO SECURE JUST
AND EQUAL DISTRIBUTION.  P. 533. 

4.  ADOPTION BY THE SECRETARY OF THE INTERIOR OF PLANS FOR IRRIGATION
PROJECTS TO SERVE CERTAIN LANDS ON THE CROW INDIAN RESERVATION DID NOT
IMPLY A PURPOSE TO EXCLUDE ALL OTHER LAND FROM PARTICIPATION IN
ESSENTIAL WATER AND THEREBY DESTROY THE EQUAL INTEREST GRANTED BY THE
TREATY.  P. 533. 

SUBSEQUENT ALLOTMENTS FOR FARMING FOLLOWED BY PATENTS NEGATIVE ANY
SUCH NOTION. 

UNITED STATES V. POWERS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 581, TO REVIEW A DECREE WHICH AFFIRMED A DECREE
OF THE DISTRICT COURT, 16 F.SUPP.  155, DISMISSING A BILL BY WHICH THE
UNITED STATES SOUGHT TO ENJOIN THE OWNERS OF CERTAIN TRACTS OF LAND IN
THE CROW INDIAN RESERVATION, INDIAN ALLOTMENTS WHICH HAD BEEN DULY SOLD
IN FEE, FROM USING OR DIVERTING ANY WATER FROM TWO STREAMS ON THE
RESERVATION. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

BY THIS PROCEEDING (BEGUN IN 1934) THE UNITED STATES SEEK TO PREVENT
FURTHER TAKING OF WATER FROM CERTAIN NON-NAVIGABLE STREAMS WITHIN THE
CROW INDIAN RESERVATION.  THIS WATER IS ESSENTIAL TO THE CULTIVATION OF
RESPONDENTS' LANDS ALLOTTED MORE THAN TWENTY YEARS AGO TO MEMBERS OF
THE TRIBE AND PRESENTLY HELD UNDER PROPERLY ACQUIRED FEE SIMPLE
TITLES.  THE PRAYER OF THE BILL IS FOR A PERMANENT INJUNCTION AGAINST
"MAINTAINING OR USING SAID DAMS AND DITCHES, AS AFORESAID, AND FROM
DIVERTING BY MEANS OF SAID DAMS AND DITCHES OR IN ANY OTHER MANNER ANY
OF THE WATERS FROM LODGE GRASS CREEK OR LITTLE BIG HORN RIVER AND THEIR
TRIBUTARIES; ...  " 

THE DECREE OF THE CIRCUIT COURT OF APPEALS DISMISSING THE BILL MUST
BE AFFIRMED. 

BY TREATY OF MAY 7, 1868, 15 STAT. 649, 650-651, THE UNITED STATES
SET ASIDE A LARGE TRACT OF ARID LAND NOW WITHIN THE STATE OF MONTANA AS
A RESERVATION FOR THE "ABSOLUTE AND UNDISTURBED USE AND OCCUPATION" OF
CROW INDIANS, AND THEY UNDERTOOK TO MAKE THEIR PERMANENT HOMES
THEREON.  IT PROVIDES THAT WHENEVER AN INDIVIDUAL INDIAN DESIRES "TO
COMMENCE FARMING" HE MAY SELECT LAND, UNDER STATED CONDITIONS, WHICH
THEREUPON SHALL "CEASE TO BE HELD IN COMMON, BUT THE SAME MAY BE
OCCUPIED AND HELD IN THE EXCLUSIVE POSSESSION OF THE PERSON SELECTING
IT, AND OF HIS FAMILY, SO LONG AS HE OR THEY MAY CONTINUE TO CULTIVATE
IT."  ALSO - 

"THE PRESIDENT MAY AT ANY TIME ORDER A SURVEY OF THE RESERVATION,
AND, WHEN SO SURVEYED, CONGRESS SHALL PROVIDE FOR PROTECTING THE RIGHTS
OF SETTLERS IN THEIR IMPROVEMENTS, AND MAY FIX THE CHARACTER OF THE
TITLE HELD BY EACH.  ...  WHEN THE HEAD OF A FAMILY OR LODGE SHALL HAVE
SELECTED LANDS AND RECEIVED HIS CERTIFICATE AS ABOVE DIRECTED, AND THE
AGENT SHALL BE SATISFIED THAT HE INTENDS IN GOOD FAITH TO COMMENCE
CULTIVATING THE SOIL FOR A LIVING, HE SHALL BE ENTITLED TO RECEIVE
SEEDS AND AGRICULTURAL IMPLEMENTS FOR THE FIRST YEAR IN VALUE ONE
HUNDRED DOLLARS, AND FOR EACH SUCCEEDING YEAR HE SHALL CONTINUE TO
FARM, FOR A PERIOD OF THREE YEARS MORE, HE SHALL BE ENTITLED TO RECEIVE
SEEDS AND IMPLEMENTS AS AFORESAID IN VALUE TWENTY-FIVE DOLLARS PER
ANNUM." 

THE TREATY CONTAINS NO DEFINITE PROVISION CONCERNING APPORTIONMENT OR
USE OF WATERS.  ALTHOUGH THE LANDS ARE ARID A CONSIDERABLE AREA IS
SUSCEPTIBLE OF CULTIVATION UNDER IRRIGATION. 

THE ACT OF CONGRESS APPROVED APRIL 11, 1882, CH. 74, 22 STAT. 42, 43,
REFERS TO "AN AGREEMENT FOR THE SALE TO THE UNITED STATES (BY THE
CROWS) OF A PORTION OF THEIR SAID RESERVATION, AND FOR THEIR SETTLEMENT
UPON LANDS IN SEVERALTY," ETC.  IN RETURN THE UNITED STATES AGREED TO
SURVEY THE REMAINING LANDS AND DIVIDE THEM AMONG MEMBERS OF THE TRIBE;
ALSO "'TO ISSUE PATENTS TO US RESPECTIVELY, THEREFOR, SO SOON AS THE
NECESSARY LAWS ARE PASSED BY CONGRESS.'"  SECTION 2 - 

"THAT THE SECRETARY OF THE INTERIOR BE, AND HE IS HEREBY, AUTHORIZED
TO CAUSE TO BE SURVEYED A SUFFICIENT QUANTITY OF LAND ON THE CROW
RESERVATION TO SECURE THE SETTLEMENT IN SEVERALTY OF SAID INDIANS AS
PROVIDED IN SAID AGREEMENT, AND UPON THE COMPLETION OF SAID SURVEY HE
SHALL CAUSE ALLOTMENTS OF LAND TO BE MADE TO EACH AND ALL OF THE
INDIANS OF SAID CROW TRIBE IN QUANTITY AND CHARACTER AS MENTIONED AND
SET FORTH IN THE AGREEMENT ABOVE NAMED, AND UPON THE APPROVAL OF SAID
ALLOTMENTS BY THE SECRETARY OF THE INTERIOR HE SHALL CAUSE PATENTS TO
ISSUE TO EACH AND EVERY ALLOTTEE FOR THE LANDS SO ALLOTTED, WITH THE
SAME CONSIDERATIONS, RESTRICTIONS, AND LIMITATIONS MENTIONED THEREIN AS
ARE PROVIDED IN SAID AGREEMENT." 

THE ACT OF FEBRUARY 8, 1887, CH. 119, 24 STAT. 388, 389-390, PROVIDES
FOR ALLOTMENTS IN SEVERALTY TO INDIANS UPON ANY RESERVATION CREATED FOR
THEIR USE WHENEVER IN THE PRESIDENT'S OPINION ANY PART IS ADVANTAGEOUS
FOR AGRICULTURAL AND GRAZING PURPOSES.  AND IT DIRECTS THAT AFTER
ALLOTMENTS ARE APPROVED THE SECRETARY OF THE INTERIOR SHALL ISSUE
PATENTS DECLARING THE UNITED STATES WILL HOLD THE LAND FOR TWENTY-FIVE
YEARS IN TRUST AND THEREAFTER "WILL CONVEY THE SAME BY PATENT TO SAID
INDIAN, OR HIS HEIRS AS AFORESAID, IN FEE, DISCHARGED OF SAID TRUST AND
FREE OF ALL CHARGE OR INCUMBRANCE WHATSOEVER  ...  "  SECTION 7 - 

"THAT IN CASES WHERE THE USE OF WATER FOR IRRIGATION IS NECESSARY TO
RENDER THE LANDS WITHIN ANY INDIAN RESERVATION AVAILABLE FOR
AGRICULTURAL PURPOSES, THE SECRETARY OF THE INTERIOR BE, AND HE IS
HEREBY, AUTHORIZED TO PRESCRIBE SUCH RULES AND REGULATIONS AS HE MAY
DEEM NECESSARY TO SECURE A JUST AND EQUAL DISTRIBUTION THEREOF AMONG
THE INDIANS RESIDING UPON ANY SUCH RESERVATIONS; AND NO OTHER
APPROPRIATION OR GRANT OF WATER BY ANY RIPARIAN PROPRIETOR SHALL BE
AUTHORIZED OR PERMITTED TO THE DAMAGE OF ANY OTHER RIPARIAN
PROPRIETOR." 

THE ACT OF MARCH 3, 1891, CH. 543, 26 STAT. 989, 1040, MENTIONS
ANOTHER CONVEYANCE BY THE CROWS TO THE UNITED STATES AND APPROPRIATES
$200,000 TO BE EXPENDED UNDER DIRECTION OF THE SECRETARY OF THE
INTERIOR FOR IRRIGATION IN THE VALLEYS OF THE BIG HORN AND LITTLE BIG
HORN RIVERS AND ON PRYOR CREEK, WITHIN THE DIMINISHED RESERVATION. 

THE ACT OF MAY 8, 1906, CH. 2348, 34 STAT. 182, 183, AUTHORIZES THE
SECRETARY OF THE INTERIOR TO ISSUE TO INDIAN ALLOTTEES PATENTS IN FEE
SIMPLE "AND THEREAFTER ALL RESTRICTIONS AS TO SALE, INCUMBRANCE, OR
TAXATION OF SAID LAND SHALL BE REMOVED  ...  "  ALSO - 

"HEREAFTER WHEN AN ALLOTMENT OF LAND IS MADE TO ANY INDIAN, AND ANY
SUCH INDIAN DIES BEFORE THE EXPIRATION OF THE TRUST PERIOD, SAID
ALLOTMENT SHALL BE CANCELLED AND THE LAND SHALL REVERT TO THE UNITED
STATES, AND THE SECRETARY OF THE INTERIOR SHALL ASCERTAIN THE LEGAL
HEIRS OF SUCH INDIAN, AND SHALL CAUSE TO BE ISSUED TO SAID HEIRS AND IN
THEIR NAMES, A PATENT IN FEE SIMPLE FOR SAID LAND, OR HE MAY CAUSE THE
LAND TO BE SOLD AS PROVIDED BY LAW AND ISSUE A PATENT THEREFOR TO THE
PURCHASER OR PURCHASERS, AND PAY THE NET PROCEEDS TO THE HEIRS, OR
THEIR LEGAL REPRESENTATIVES, OF SUCH DECEASED INDIAN.  THE ACTION OF
THE SECRETARY OF THE INTERIOR IN DETERMINING THE LEGAL HEIRS OF ANY
DECEASED INDIAN, AS PROVIDED HEREIN, SHALL IN ALL RESPECTS BE
CONCLUSIVE AND FINAL." 

COMMENCING IN 1901 ALLOTMENTS IN SEVERALTY OF TRACTS ABUTTING OR
ADJACENT TO THE LITTLE BIG HORN RIVER OR LODGE GRASS CREEK WERE MADE TO
RESPONDENTS' INDIAN PREDECESSORS.  THESE CULMINATED IN THE ISSUANCE OF
FEE SIMPLE PATENTS AS PROVIDED BY ACT OF MAY 8, 1906.  FN1  EACH PATENT
UNDERTOOK TO CONVEY THE LAND "TOGETHER WITH ALL THE RIGHTS, PRIVILEGES,
IMMUNITIES AND APPURTENANCES, OF WHATSOEVER NATURE, THEREUNTO
BELONGING," BUT CONTAINED NO EXPRESS PROVISION CONCERNING WATER
RIGHTS.  RESPONDENTS HAVE SUCCEEDED TO THE INTEREST OF THE ORIGINAL
ALLOTTEES EITHER BY MESNE CONVEYANCES OR BY PURCHASE AT GOVERNMENT
SALES OF DECEASED ALLOTTEES' LANDS. 

THE LITTLE BIG HORN RIVER AND ITS AFFLUENT, LODGE GRASS CREEK, UNDER
NORMAL CONDITIONS MAY AFFORD SUFFICIENT WATER TO IRRIGATE TWENTY
THOUSAND ACRES WITHIN THE RESERVATION.  THROUGH PRIVATE DITCHES
RESPONDENTS AND THEIR PREDECESSORS HAVE LONG CONVEYED WATER FROM THESE
STREAMS IN ORDER TO IRRIGATE THEIR LANDS AND THUS RENDER THEM
SUSCEPTIBLE OF CULTIVATION.  IT IS NOT SUGGESTED THAT WATER THEREFOR
CAN BE OBTAINED FROM ANY OTHER SOURCE. 

PETITIONERS MAINTAIN - 

THAT PRIOR TO 1885, THE UNITED STATES COMMENCED CONSTRUCTION OF
IRRIGATION WORKS INTENDED TO DIVERT WATERS FROM THE STREAMS IN
QUESTION.  THESE GRADUALLY DEVELOPED INTO A SYSTEM NORMALLY CAPABLE OF
CARRYING SUFFICIENT WATER TO IRRIGATE 20,000 ACRES.  FN2  NONE OF
RESPONDENTS' LANDS LIE WITHIN THE AMBIT OF THESE PROJECTS; AND NEITHER
THE ORIGINAL ALLOTMENTS NOR THE PATENTS SPECIFICALLY GRANTED THE USE OF
ANY WATER. 

THAT CONGRESS GAVE THE SECRETARY OF THE INTERIOR CONTROL OF
RESERVATION WATERS.  IRRIGATION PROJECTS INITIATED UNDER HIS AUTHORITY
PRIOR TO ALLOTMENTS OF RESPONDENTS' LANDS SUFFICED TO DEDICATE AND
RESERVE SUFFICIENT WATER FOR FULL UTILIZATION OF THESE PROJECTS; RIGHTS
ACQUIRED BY THE ALLOTTEES WERE TAKEN SUBJECT TO THIS RESERVATION. 

THAT BECAUSE OF DROUGHT DURING 1931 TO 1934, AND RESPONDENTS'
DIVERSION OF WATERS UPSTREAM FROM THE PROJECTS SO INITIATED, THE
AVAILABLE WATER BECAME INSUFFICIENT PROPERLY TO IRRIGATE SOME 8,000
ACRES LYING THEREIN AND UNDER CULTIVATION.  ACCORDINGLY THE INJUNCTION
SHOULD BE GRANTED; ALL WATERS FROM THE TWO STREAMS HAD BEEN DEVOTED TO
THOSE AND SIMILARLY SITUATED LANDS SO FAR AS NECESSARY FOR FARMING
OPERATIONS. 

RESPONDENTS MAINTAIN THAT UNDER THE TREATY OF 1868 WATERS WITHIN THE
RESERVATION WERE RESERVED FOR THE EQUAL BENEFIT OF TRIBAL MEMBERS
(WINTERS V. UNITED STATES, 207 U.S. 564) AND THAT WHEN ALLOTMENTS OF
LAND WERE DULY MADE FOR EXCLUSIVE USE AND THEREAFTER CONVEYED IN FEE,
THE RIGHT TO USE SOME PORTION OF TRIBAL WATERS ESSENTIAL FOR
CULTIVATION PASSED TO THE OWNERS. 

THE RESPONDENTS' CLAIM TO THE EXTENT STATED IS WELL FOUNDED. 

MANIFESTLY THE TREATY OF 1868 CONTEMPLATED ULTIMATE SETTLEMENT BY
INDIVIDUAL INDIANS UPON DESIGNATED TRACTS WHERE THEY COULD MAKE HOMES
WITH EXCLUSIVE RIGHT OF CULTIVATION FOR THEIR SUPPORT AND WITH
EXPECTATION OF ULTIMATE COMPLETE OWNERSHIP.  WITHOUT WATER PRODUCTIVE
CULTIVATION HAS ALWAYS BEEN IMPOSSIBLE. 

WE CAN FIND NOTHING IN THE STATUTES AFTER 1868 ADEQUATE TO SHOW
CONGRESSIONAL INTENT TO PERMIT ALLOTTEES TO BE DENIED PARTICIPATION IN
THE USE OF WATERS ESSENTIAL TO FARMING AND HOME MAKING.  IF POSSIBLE,
LEGISLATION SUBSEQUENT TO THE TREATY MUST BE INTERPRETED IN HARMONY
WITH ITS PLAIN PURPOSES. 

THE SECRETARY OF THE INTERIOR HAD AUTHORITY (ACT 1887) TO PRESCRIBE
RULES AND REGULATIONS DEEMED NECESSARY TO SECURE JUST AND EQUAL
DISTRIBUTION OF WATERS.  IT DOES NOT APPEAR THAT HE EVER UNDERTOOK SO
TO DO.  CERTAINLY HE COULD NOT AFFIRMATIVELY AUTHORIZE UNJUST AND
UNEQUAL DISTRIBUTION.  THE STATUTE ITSELF CLEARLY INDICATES
CONGRESSIONAL RECOGNITION OF EQUAL RIGHTS AMONG RESIDENT INDIANS. 

ADOPTION BY THE SECRETARY OF PLANS FOR IRRIGATION PROJECTS TO SERVE
CERTAIN LANDS WAS NOT ENOUGH TO INDICATE A PURPOSE TO EXCLUDE ALL OTHER
LAND FROM PARTICIPATION IN ESSENTIAL WATER AND THEREBY DESTROY THE
EQUAL INTEREST GUARANTEED BY THE TREATY.  SUBSEQUENT ALLOTMENTS FOR
FARMING FOLLOWED BY PATENTS NEGATIVE ANY SUCH NOTION.  THE PATENTED
LANDS HAD NO VALUE FOR AGRICULTURE WITHOUT WATER; THEY WERE SELECTED
FOR HOMES AND INDIVIDUAL FARMING. 

THE PETITIONERS HAVE SHOWN NO RIGHT TO THE INJUNCTION ASKED.  WE DO
NOT CONSIDER THE EXTENT OR PRECISE NATURE OF RESPONDENTS' RIGHTS IN THE
WATERS.  THE PRESENT PROCEEDING IS NOT PROPERLY FRAMED TO THAT END. 

THE CHALLENGED DECREE MUST BE AFFIRMED. 

FN1  CH. 2348, 34 STAT. 182. 

FN2  SEE ACT OF MARCH 1, 1899, CH. 324, 30 STAT. 924; ACT OF MAY 31,
1900, CH. 598, 31 STAT. 221; ACT OF APRIL 27, 1904, CH. 1624, 33 STAT.
352. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



UNITED STATES V. PLEASANTS, 305 U.S. 357 


NO. 169.  ARGUED DECEMBER 5, 1938.  - DECIDED JANUARY 3, 1939.  - 86
CT.CLS.  679 - 22 F.SUPP.  964, AFFIRMED. 


1.  UNDER THE REVENUE ACT OF 1932, WHICH ALLOWS DEDUCTION FROM GROSS
INCOME OF CHARITABLE CONTRIBUTIONS NOT TO EXCEED 15% OF "NET INCOME" AS
ASCERTAINED WITHOUT SUCH DEDUCTION, SEC. 23(N), THE NET INCOME INTENDED
IS THAT UPON WHICH NORMAL TAX AND SURTAX ARE LEVIED, UNDIMINISHED BY
THE AMOUNT OF A CAPITAL NET LOSS 12 1/2% OF WHICH IS ALLOWED AS AN OFF
SET IN COMPUTING THE TOTAL TAX, UNDER THE SPECIAL PROVISION OF SEC.
101(B).  HELVERING V. BLISS, 293 U.S. 144, EXPLAINED.  P. 358. 

2.  EXEMPTIONS FROM TAXATION OF INCOME DEVOTED TO CHARITY ARE NOT
NARROWLY CONSTRUED.  P. 363. 

3.  ADMINISTRATIVE CONSTRUCTION OF A STATUTE, TO BE PERSUASIVE,
SHOULD BE CONSISTENT.  ID. 

UNITED STATES V. PLEASANTS. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 582, TO REVIEW A JUDGMENT ALLOWING A RECOVERY OF
MONEY ERRONEOUSLY COLLECTED AS PART OF AN INCOME TAX. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE 15 PER CENTUM ALLOWED AS A DEDUCTION FOR
CHARITABLE CONTRIBUTIONS UNDER SEC. 23(N) OF THE REVENUE ACT OF 1932 IS
TO BE CALCULATED ON THE TAXPAYER'S NET INCOME COMPUTED WITHOUT REGARD
TO A CAPITAL NET LOSS AS TO WHICH SPECIAL PROVISION IS MADE BY SEC.
101(B). 

ALLOWED AS A DEDUCTION FROM GROSS INCOME - 

"IN THE CASE OF AN INDIVIDUAL, CONTRIBUTIONS OR GIFTS MADE WITHIN THE
TAXABLE YEAR TO OR FOR THE USE OF:  ...  TO AN AMOUNT WHICH IN ALL THE
ABOVE CASES COMBINED DOES NOT EXCEED 15 PER CENTUM OF THE TAXPAYER'S
NET INCOME AS COMPUTED WITHOUT THE BENEFIT OF THIS SUBSECTION."  47
STAT. 181-182. 

RESPONDENT IN 1932 MADE CHARITABLE CONTRIBUTIONS TO THE AMOUNT OF
$3496.  HIS NET INCOME, IRRESPECTIVE OF A CAPITAL NET LOSS, WAS
DETERMINED BY THE COMMISSIONER TO BE $94,963.52.  UPON THAT NET INCOME
THE COMMISSIONER ASSESSED THE NORMAL TAX AND SURTAX AT THE RATES
PRESCRIBED BY SECS. 11 AND 12.  FN1  RESPONDENT CONTENDED THAT THIS WAS
HIS NET INCOME AS DESCRIBED IN SEC. 23(N) AND THAT AS HIS CHARITABLE
CONTRIBUTIONS WERE LESS THAN 15 PER CENTUM OF THAT AMOUNT THEY WERE
DEDUCTIBLE IN FULL IN DETERMINING HIS NORMAL TAX AND SURTAX.  THE
COMMISSIONER REFUSED TO ALLOW THE DEDUCTION. 

THE TAXPAYER HAD SUSTAINED A "CAPITAL NET LOSS," AS DEFINED IN SEC.
101(C)(6), OF $154,921.98.  THE COMMISSIONER RULED THAT "SINCE THE
CAPITAL LOSS OF $154,921.98 IS IN EXCESS OF ADJUSTED ORDINARY NET
INCOME OF $94,963.52(WITHOUT CONTRIBUTIONS) THERE IS NO NET INCOME
AGAINST WHICH TO MAKE A DEDUCTION FOR CONTRIBUTIONS." 

HAVING PAID THE TAX ASSESSED BY THE COMMISSIONER UPON THAT THEORY,
RESPONDENT FILED HIS CLAIM FOR A REFUND AND ON ITS REJECTION BROUGHT
THIS SUIT IN THE COURT OF CLAIMS.  JUDGMENT WAS RENDERED IN HIS FAVOR. 
22 F.SUPP.  964.  BECAUSE OF AN ASSERTED CONFLICT WITH DECISIONS OF
CIRCUIT COURTS OF APPEALS  FN2  AND WITH OUR RULING IN HELVERING V.
BLISS, 293 U.S. 144, CERTIORARI WAS GRANTED.  OCTOBER 10, 1938. 

"CAPITAL NET GAINS" AND "CAPITAL NET LOSSES" OF INDIVIDUAL TAXPAYERS
ARE THE SUBJECT OF SPECIAL TREATMENT UNDER SEC. 101.  IN THE CASE OF A
"CAPITAL NET GAIN," THERE IS TO BE LEVIED, AT THE ELECTION OF THE
TAXPAYER, AND IN LIEU OF ALL OTHER TAXES IMPOSED BY THE INCOME TAX
TITLE, A TAX OF 12 1/2 PER CENTUM OF THE CAPITAL NET GAIN, TO BE ADDED
TO THE TAX COMPUTED UPON THE BASIS OF THE "ORDINARY NET INCOME."  SEC.
101(A).  IN THE CASE OF A "CAPITAL NET LOSS," SEC. 101(B) PROVIDES FOR
A TAX TO BE DETERMINED, ALSO IN LIEU OF OTHER INCOME TAXES BUT
IRRESPECTIVE OF ANY ELECTION BY THE TAXPAYER, AS FOLLOWS: 

"A PARTIAL TAX SHALL FIRST BE COMPUTED UPON THE BASIS OF THE ORDINARY
NET INCOME AT THE RATES AND IN THE MANNER AS IF THIS SECTION HAD NOT
BEEN ENACTED, AND THE TOTAL TAX SHALL BE THIS AMOUNT MINUS 12 1/2 PER
CENTUM OF THE CAPITAL NET LOSS; BUT IN NO CASE SHALL THE TAX OF A
TAXPAYER WHO HAS SUSTAINED A CAPITAL NET LOSS BE LESS THAN THE TAX
COMPUTED WITHOUT REGARD TO THE PROVISIONS OF THIS SECTION." 

SUM OF THE CAPITAL LOSSES PLUS THE CAPITAL DEDUCTIONS OVER THE TOTAL
AMOUNT OF CAPITAL GAIN."  SECTION 101(C)(7) DEFINES "ORDINARY NET
INCOME" AS "THE NET INCOME, COMPUTED IN ACCORDANCE WITH THE PROVISIONS
OF THIS TITLE, AFTER EXCLUDING ALL ITEMS OF CAPITAL GAIN, CAPITAL LOSS,
AND CAPITAL DEDUCTIONS." 

THERE IS NO DOUBT AS TO THE PURPOSE OF THIS PROVISION AS TO CAPITAL
NET LOSSES, WHICH WAS FIRST INTRODUCED IN THE REVENUE ACT OF 1924.  FN3
PRIOR TO THAT TIME, AND UNDER THE REVENUE ACT OF 1921, CAPITAL LOSSES
WERE TO BE DEDUCTED FROM CAPITAL GAINS IN THE PROCESS OF DETERMINING
THE "CAPITAL NET GAIN."  FN4  IF CAPITAL DEDUCTIONS AND CAPITAL LOSSES
WERE IN EXCESS OF THE CAPITAL GAIN, OR IF THERE WERE CAPITAL LOSSES IN
THE ABSENCE OF CAPITAL GAIN, SUCH LOSSES WERE DEDUCTIBLE AS ORDINARY
LOSSES.  WE ARE TOLD THAT THE OPPORTUNITY TO MINIMIZE TAXES BY THE
PRACTICE OF TAKING CAPITAL LOSSES TO OFFSET ORDINARY NET INCOME
CONSTITUTED A PARTICULARLY SERIOUS PROBLEM AFTER THE ACT OF 1921, WHICH
REDUCED THE RATE OF TAX ON CAPITAL NET GAINS.  THE RESULTS TO THE
TREASURY OF THAT METHOD OF TREATING CAPITAL LOSSES LED TO THE ADOPTION
IN THE ACT OF 1924 OF THE PLAN FOR SUBJECTING CAPITAL NET LOSSES TO A
LIMITED RATE IN ORDER TO PROTECT THE REVENUES,  FN5  A PLAN WHICH WAS
CONTINUED IN THE REVENUE ACTS OF 1926, 1928, AND 1932.  FN6 

IT WILL BE OBSERVED THAT THE PROVISION FOR THE LIMITATION WITH
RESPECT TO A CAPITAL NET LOSS UNDER SEC. 101(B)(UNLIKE THE PROVISION IN
SEC. 101(A) AS TO A CAPITAL NET GAIN) GIVES NO OPTION TO THE TAXPAYER. 
FN7  THE LIMITATION IS EXPLICIT AND MUST BE FOLLOWED AS WRITTEN.  THE
LIMITATION APPLIES EQUALLY WHEN THERE IS NO CAPITAL GAIN AND HENCE
NOTHING TO BE DEDUCTED FROM CAPITAL LOSSES ON THAT SCORE.  FN8  THE
LIMITATION IS APPLICABLE UNLESS, AS STATED IN THE LAST CLAUSE OF SEC.
101(B), A GREATER TAX WOULD RESULT FROM NOT APPLYING IT.  FN9  IN THE
INSTANT CASE THERE IS NO QUESTION THAT THE LIMITATION DOES APPLY AND
THE COMMISSIONER HAS APPLIED IT. 

IN SUCH A CASE THE STATUTE DIRECTS THAT A PARTIAL TAX SHALL BE FIRST
COMPUTED UPON THE BASIS OF THE "ORDINARY NET INCOME" AND AT THE RATES
AND IN THE MANNER PROVIDED IN SECS. 11 AND 12.  FN10 THE TOTAL TAX IS
THEN ARRIVED AT BY DEDUCTING 12 1/2 PER CENTUM OF THE CAPITAL NET
LOSS.  THAT LOSS THUS FIGURES IN THE COMPUTATION OF THE TOTAL TAX ONLY
BY THE ALLOWANCE OF AN OFFSET TO THE SPECIFIED EXTENT AGAINST THE TAX
DETERMINED APART FROM THE CAPITAL LOSSES.  THUS, WHERE THE LIMITATION
IS APPLICABLE AND THE OFFSET OF 12 1/2 PER CENTUM OF THE CAPITAL NET
LOSS IS ALLOWED ACCORDINGLY, CAPITAL LOSSES ARE NOT DEDUCTIBLE IN
DETERMINING THE TAXPAYER'S NET INCOME FOR THE PURPOSE OF THE NORMAL TAX
AND SURTAX.  AND, AS IN SUCH CASE THERE IS NO CAPITAL GAIN, THE
"ORDINARY NET INCOME" UNDER SEC. 101(B), THAT IS, THE NET INCOME
COMPUTED AFTER EXCLUDING CAPITAL LOSS AND CAPITAL DEDUCTIONS, IS THE
ONLY NET INCOME UPON WHICH A TAX IS LAID. 

WE HAVE NOTED THAT THE LIMITATION OF SEC. 101(B) IS NOT APPLICABLE IF
THE TAX, COMPUTED WITHOUT REGARD TO THAT SECTION, WOULD BE GREATER. 
THE LATTER METHOD OF COMPUTATION BRINGS OUT THE DISTINCTION CLEARLY. 
FOR IN THAT METHOD THE CAPITAL NET LOSS IS DEDUCTED FROM THE ORDINARY
NET INCOME IN ORDER TO ARRIVE AT THE TOTAL NET INCOME FOR THE PURPOSE
OF APPLYING THE NORMAL TAX AND SURTAX RATES.  SEE ILLUSTRATION IN
REGULATIONS 77, ARTICLE 503.  BUT WHERE THE LIMITATION OF SEC. 101(B)
GOVERNS, BECAUSE THE TAX AS OTHERWISE COMPUTED WOULD NOT BE GREATER,
CAPITAL LOSSES ARE NOT DEDUCTED IN DETERMINING THE NET INCOME WHICH IS
TO BE TAXED, BUT ARE USED ONLY FOR THE PURPOSE OF DETERMINING THE
SPECIFIED OFFSET AGAINST THE TAX ON THAT NET INCOME.  ID. 

WE ARE NOT IMPRESSED WITH THE ARGUMENT BASED ON THE PROVISIONS OF
SECS. 21, 22 AND 23.  TRUE, SEC. 21 PROVIDES THAT "NET INCOME" MEANS
GROSS INCOME COMPUTED UNDER SEC. 22 LESS THE DEDUCTIONS ALLOWED BY SEC.
23.  SECTION 22 DEFINES GROSS INCOME AND SEC. 23 PROVIDES FOR
DEDUCTIONS, INCLUDING DEDUCTIONS FOR LOSSES.  BUT SECS. 21, 22 AND 23
ARE NOT TO BE CONSTRUED SO AS TO DEROGATE FROM THE SPECIAL AND EXPLICIT
PROVISIONS OF SEC. 101(B).  UNDER THE LIMITATION OF THAT SECTION, AS WE
HAVE SEEN, THE TAXPAYER IS NOT PERMITTED TO DEDUCT CAPITAL LOSSES SO AS
TO REDUCE THE NET INCOME SUBJECT TO TAX AND HIS CAPITAL LOSSES ENTER
INTO THE COMPUTATION OF HIS ULTIMATE TAX ONLY THROUGH THE DEDUCTION OF
12 1/2 PER CENTUM OF THE CAPITAL NET LOSS FROM THE TAX WHICH IS
COMPUTED UPON THE NET INCOME ASCERTAINED IRRESPECTIVE OF THAT LOSS. 

IT IS IN THIS LIGHT THAT WE MUST DECIDE THE PARTICULAR QUESTION HERE
PRESENTED AS TO THE MEANING OF THE WORDS "THE TAXPAYER'S NET INCOME" IN
SEC. 23(N) PROVIDING FOR A DEDUCTION OF 15 PER CENTUM FOR CHARITABLE
CONTRIBUTIONS.  DO THESE WORDS REFER TO THE TAXPAYER'S NET INCOME WHICH
UNDER THE STATUTORY SCHEME IS ACTUALLY SUBJECT TO TAX?  OR IS THAT NET
INCOME, ALTHOUGH TREATED AS SUBSISTING FOR THE PURPOSE OF BEING TAXED,
TO BE REGARDED AS NON-EXISTENT FOR THE PURPOSE OF ADMITTING DEDUCTIONS
FOR CONTRIBUTIONS?  WE THINK THAT CONGRESS, IN THE APPLICATION OF THE
SPECIAL PROVISION OF SEC. 101(B) FOR AN OFFSET IN CASE OF A CAPITAL NET
LOSS, INTENDED TO MAKE THE TAXPAYER'S NET INCOME, ASCERTAINED
IRRESPECTIVE OF THAT LOSS, THE SUBJECT OF THE TAX AND THAT THE
PROVISION IN SEC. 21(N) ALLOWING A DEDUCTION FOR CHARITABLE
CONTRIBUTIONS IS APPLICABLE TO THAT TAXABLE NET INCOME. 

THERE IS NOTHING TO THE CONTRARY IN OUR DECISION IN HELVERING V.
BLISS, SUPRA.  IN THAT CASE THERE WAS A CAPITAL NET GAIN.  THE NET
INCOME OF THE TAXPAYER COMPREHENDED THAT NET GAIN AS WELL AS HIS NET
INCOME OTHERWISE COMPUTED.  WE DECIDED THAT IT WAS HIS TOTAL NET INCOME
WHICH WAS TO BE REGARDED AS THE BASIS FOR THE ALLOWANCE UNDER SEC.
23(N).  WE FOUND NOTHING IN SEC. 101, WHICH IN THAT APPLICATION
PRESCRIBED "MERELY A METHOD FOR SEGREGATING A PORTION OF THAT NET
INCOME FOR TAXATION AT A SPECIAL RATE," THAT IN ANY WISE ALTERED THE
RIGHT OF THE TAXPAYER TO TAKE THE DEDUCTION IN ACCORDANCE WITH SEC.
23(N).  ID., 150, 151.  HERE, INSTEAD OF A CAPITAL NET GAIN, WE HAVE A
CAPITAL NET LOSS.  THERE IS NO GAIN TO BE ADDED TO THE TAXPAYER'S NET
INCOME OTHERWISE COMPUTED, AND THUS THAT IS THE ONLY NET INCOME TAXABLE
UNDER THE STATUTE.  TO THAT NET INCOME, THE PROVISION OF SEC. 23(N)
APPROPRIATELY APPLIES.  WE OBSERVED IN THE BLISS CASE THAT THE
EXEMPTION OF INCOME DEVOTED TO CHARITY AND THE REDUCTION OF THE RATE OF
TAX ON CAPITAL GAINS "WERE LIBERALIZATIONS OF THE LAW IN THE TAXPAYER'S
FAVOR, WERE BEGOTTEN FROM MOTIVES OF PUBLIC POLICY, AND ARE NOT TO BE
NARROWLY CONSTRUED."  THAT OBSERVATION IS EQUALLY PERTINENT HERE. 

THE ADMINISTRATIVE CONSTRUCTION INVOKED BY THE GOVERNMENT HAS NOT
BEEN OF A SUFFICIENTLY CONSISTENT CHARACTER TO AFFORD ADEQUATE SUPPORT
FOR ITS CONTENTION.  FN11 

WE CONCLUDE THAT THE COMMISSIONER ERRED IN REFUSING TO PERMIT THE
DEDUCTION SOUGHT BY RESPONDENT FOR HIS CHARITABLE CONTRIBUTIONS AND
THAT THE JUDGMENT OF THE COURT OF CLAIMS SHOULD BE AFFIRMED. 

FN1  THESE SECTIONS PROVIDE: 

"SEC. 11.  NORMAL TAX ON INDIVIDUALS.  - 

"THERE SHALL BE LEVIED, COLLECTED, AND PAID FOR EACH TAXABLE YEAR
UPON THE NET INCOME OF EVERY INDIVIDUAL A NORMAL TAX EQUAL TO THE SUM
OF THE FOLLOWING:  ... 

"SEC. 12.  SURTAX ON INDIVIDUALS.  - 

"(A)  RATES OF SURTAX.  - THERE SHALL BE LEVIED, COLLECTED, AND PAID
FOR EACH TAXABLE YEAR UPON THE NET INCOME OF EVERY INDIVIDUAL A SURTAX
AS FOLLOWS:  ...  " 47 STAT. 174. 

FN2  AVERY V. COMMISSIONER, C.C.A.7TH, 84 F.2D 905; LOCKHART V.
COMMISSIONER, C.C.A. 3D, 89 F.2D 143; HEINZ V. COMMISSIONER, C.C.A. 3D,
94 F.2D 832. 

FN3  REVENUE ACT OF 1924, SEC. 208(C). 

FN4  REVENUE ACT OF 1921, SEC. 206(A)(4). 

FN5  PIPER V. WILLCUTS, 64 F.2D 813, 815, 816; 65TH CONG. REC. 2428;
H. REP. 179, 68TH CONG., 1ST SESS., P. 20. 

FN6  REVENUE ACT OF 1926, SEC. 208(C); 1928, SEC. 101(B); 1932, SEC.
101(B). 

FN7  REGULATIONS 77, ART. 503. 

FN8  SEE PIPER V. WILLCUTS, 64 F.2D 813, 816; HOFFMAN V.
COMMISSIONER, 71 F.2D 929. 

FN9  SEE ILLUSTRATION IN REGULATIONS 77, ART. 503. 

FN10  SEE NOTE 1. 

FN11  SEE I.T. 2104, III-2 CUM. BULL.  152; ELKINS V. COMMISSIONER,
24 B.T.A. 572; LIVINGOOD V. COMMISSIONER, 25 B.T.A. 585, 589; XI-1 CUM.
BULL.  9, 33; XI-2 CUM. BULL.  3, 6, 29, 268; STRAUS V. COMMISSIONER,
27 B.T.A. 1116; XIII-2 CUM. BULL.  25, 29, 135. 
..END :










FORD MOTOR CO. V. LABOR BOARD, 305 U.S. 364 


NOS. 182 AND 183.  ARGUED DECEMBER 14, 1938.  - DECIDED JANUARY 3,
1939.  - 99 F.2D 1003, 1009, AFFIRMED. 


1.  THE AUTHORITY TO MODIFY OR SET ASIDE ITS FINDINGS AND ORDER,
CONFERRED ON THE NATIONAL LABOR RELATIONS BOARD BY SEC. 10(D) OF THE
NATIONAL LABOR RELATIONS ACT, ENDS WITH THE FILING OF THE TRANSCRIPT OF
ITS RECORD IN THE CIRCUIT COURT OF APPEALS.  P. 368. 

2.  UPON THE FILING OF SUCH TRANSCRIPT IN CONNECTION WITH THE BOARD'S
PETITION FOR ENFORCEMENT OF ITS ORDER, AND NOTICE, THE CIRCUIT COURT OF
APPEALS ACQUIRES JURISDICTION UNDER SEC. 10(E).  ID. 

3.  UNDER SEC. 10(F) OF THE ACT THE JURISDICTION OF THE CIRCUIT COURT
OF APPEALS IS OF THE SAME CHARACTER AND SCOPE IN A PROCEEDING FOR
REVIEW BROUGHT BY A PERSON AGGRIEVED BY AN ORDER OF THE BOARD AS THE
JURISDICTION WHICH THE COURT HAS IN A PROCEEDING INSTITUTED BY THE
BOARD FOR ENFORCEMENT.  P. 369. 

4.  WHERE THE BOARD HAS PETITIONED FOR ENFORCEMENT UNDER SEC. 10(E)
AND THE JURISDICTION OF THE COURT HAS ATTACHED, THE RESPONDENT IS
ENTITLED TO RAISE ALL PERTINENT QUESTIONS AND TO OBTAIN ANY AFFIRMATIVE
RELIEF THAT IS APPROPRIATE WITHOUT SEEKING INDEPENDENT REVIEW UNDER
SEC. 10(F); AND PERMISSION TO THE BOARD TO WITHDRAW ITS PETITION RESTS
IN THE SOUND DISCRETION OF THE COURT, TO BE EXERCISED IN THE LIGHT OF
THE CIRCUMSTANCES OF THE PARTICULAR CASE.  ID. 

5.  WHERE THE BOARD SOUGHT ENFORCEMENT OF ITS ORDER UNDER SEC. 10(E),
AND THE PARTY PROCEEDED AGAINST PETITIONED FOR REVIEW UNDER SEC. 10(F),
SEEKING AFFIRMATIVE RELIEF AND SETTING UP SUBSTANTIALLY THE SAME
GROUNDS IN ITS ANSWER TO THE BOARD'S PETITION AND IN ITS OWN PETITION,
HELD: 

(1)  THAT THE COURT HAD JURISDICTION TO RETAIN THE TRANSCRIPT FILED
BY THE BOARD, WHILE PERMITTING WITHDRAWAL OF THE BOARD'S PETITION, AND
TO ORDER THAT THE TRANSCRIPT BE FILED IN THE PROCEEDING FOR REVIEW.  IN
RE NATIONAL LABOR RELATIONS BOARD, 304 U.S. 486, DISTINGUISHED.  P.
370. 

(2)  ON THE PETITION FOR REVIEW, THE BOARD COULD SEEK, NOT MERELY A
DENIAL OF THAT PETITION, BUT ALSO ENFORCEMENT OF ITS ORDER.  P. 371. 

(3)  THE COURT ACQUIRED EXCLUSIVE JURISDICTION TO DEAL WITH THE
ORDER.  P. 372. 

6.  UPON A PETITION TO REVIEW AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD, WHERE IT WAS CONTENDED THAT THE ORDER WAS INVALID FOR
WANT OF A FULL AND FAIR HEARING AND BECAUSE THE BOARD HAD NOT ITSELF
CONSIDERED THE EVIDENCE BUT HAD ADOPTED AS ITS OWN A DECISION PREPARED
BY SUBORDINATES, WITHOUT AFFORDING THE PETITIONER ANY OPPORTUNITY TO BE
HEARD THEREON,  - THE CIRCUIT COURT OF APPEALS PROPERLY GRANTED THE
BOARD'S MOTION TO REMAND THE CAUSE TO THE BOARD FOR THE PURPOSE OF
SETTING ASIDE ITS FINDINGS AND ORDER, ISSUING PROPOSED FINDINGS, WITH
PERMISSION TO THE PARTIES TO FILE EXCEPTIONS AND PRESENT ARGUMENT, AND
THEREAFTER MAKING ITS DECISION AND ORDER UPON A RECONSIDERATION OF THE
ENTIRE CASE.  P. 372. 

THIS PURPOSE, EXPRESSED IN THE BOARD'S MOTION AND SPECIFIED IN THE
ORDER OF REMAND, QUALIFIES THAT ORDER AND BINDS THE BOARD.  IT WAS NOT
NECESSARY FOR THE COURT TO CONSIDER OTHER OBJECTIONS TO THE BOARD'S
CONDUCT OF THE PROCEEDING, AS THE SETTING ASIDE OF THE FINDINGS AND
ORDER WOULD CARRY WITH IT THE OPPORTUNITY FOR RECONSIDERATION AND THE
MAKING OF A NEW RECORD.  PP. 372-375. 

FORD MOTOR CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 585, TO REVIEW ORDERS OF THE COURT BELOW, ONE
GRANTING A MOTION OF THE ABOVE-NAMED BOARD TO WITHDRAW A PETITION FOR
ENFORCEMENT UNDER THE NATIONAL LABOR RELATIONS ACT, THE OTHER REMANDING
THE CAUSE TO THE BOARD ON THE BOARD'S MOTION. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE PROPRIETY OF THE ACTION OF THE
CIRCUIT COURT OF APPEALS IN REMANDING A CAUSE TO THE NATIONAL LABOR
RELATIONS BOARD FOR THE PURPOSE OF SETTING ASIDE ITS FINDINGS AND
ORDER, AND ISSUING PROPOSED FINDINGS, AND MAKING ITS DECISION AND ORDER
UPON RECONSIDERATION. 

THE NATIONAL LABOR RELATIONS BOARD, ON DECEMBER 22, 1937, ENTERED AN
ORDER AGAINST PETITIONER DIRECTING IT TO DESIST FROM DESCRIBED
PRACTICES AND TO OFFER REINSTATEMENT, WITH BACK PAY, TO CERTAIN
DISCHARGED EMPLOYEES. 

ON JANUARY 7, 1938, THE BOARD FILED ITS PETITION IN NO. 182(CALLED
THE BOARD'S PROCEEDING) IN THE CIRCUIT COURT OF APPEALS, SEEKING THE
ENFORCEMENT OF ITS ORDER, AND AT THE SAME TIME FILED THE TRANSCRIPT OF
THE RECORD. 

ON APRIL 4, 1938, PETITIONER ASKED LEAVE TO ADDUCE ADDITIONAL
EVIDENCE.  ON APRIL 11, 1938, PETITIONER FILED ITS ANSWER TO THE
BOARD'S PETITION, ALLEGING THAT THE ORDER WAS INVALID AND ASKING THAT
IT BE SET ASIDE UPON THE GROUNDS, AMONG OTHERS, THAT THE BOARD HAD
FAILED TO ACCORD PETITIONER A FULL AND FAIR HEARING, AND THAT THE BOARD
HAD NOT ITSELF CONSIDERED THE EVIDENCE BUT HAD ADOPTED AS ITS OWN A
DECISION PREPARED BY ITS SUBORDINATES WITHOUT AFFORDING PETITIONER ANY
OPPORTUNITY TO BE HEARD THEREON.  IT WAS ALSO ALLEGED THAT THE FINDINGS
WERE NOT SUPPORTED BY THE EVIDENCE.  PETITIONER MOVED FOR A COMMISSION
TO TAKE THE DEPOSITIONS OF WITNESSES, AND SERVED INTERROGATORIES UPON
THE BOARD. 

ON MAY 2, 1938, AFTER OUR DECISION IN MORGAN V. UNITED STATES (APRIL
25, 1938), 304 U.S. 1, THE BOARD FILED A MOTION FOR LEAVE TO WITHDRAW
ITS PETITION FOR ENFORCEMENT AND THE TRANSCRIPT OF RECORD, WITHOUT
PREJUDICE.  THE BOARD STATED THAT, SHOULD ITS MOTION BE GRANTED, IT
WOULD SET ASIDE ITS ORDER, WOULD ISSUE PROPOSED FINDINGS, WITH
PERMISSION TO THE PARTIES TO FILE EXCEPTIONS AND PRESENT ARGUMENT, AND
THEREAFTER MAKE ITS DECISION AND ORDER.  ON MAY 5, 1938, THE COURT
GRANTED THE BOARD'S MOTION.  ON MAY 6, 1938, THE BOARD SERVED NOTICE ON
PETITIONER OF ITS INTENTION TO VACATE ITS FINDINGS AND ORDER OF
DECEMBER 22, 1937, BUT LATER IN VIEW OF PETITIONER'S OBJECTION HELD
THAT ACTION UNDER ADVISEMENT.  ON MAY 9, 1938, THE ORDER OF MAY 5TH WAS
AMENDED SO FAR AS IT PERMITTED THE WITHDRAWAL OF THE TRANSCRIPT OF
RECORD AND THE COURT DIRECTED THAT THE TRANSCRIPT REMAIN ON FILE.  ON
JUNE 2, 1938, THE BOARD PURPORTED TO WITHDRAW ITS PETITION FOR
ENFORCEMENT.  ON JUNE 4, 1938, THE PETITIONER MOVED TO VACATE THE ORDER
OF MAY 5TH.  THAT MOTION WAS DENIED ON JUNE 10, 1938, WITH A STAY OF
THE WITHDRAWAL OF THE BOARD'S PETITION PENDING APPLICATION HERE FOR
WRIT OF CERTIORARI. 

MEANWHILE, ON MAY 4, 1938, THE PETITIONER FILED WITH THE CIRCUIT
COURT OF APPEALS IN NO. 183(CALLED THE PETITIONER'S PROCEEDING) ITS
PETITION ASKING THE COURT TO REVIEW AND SET ASIDE THE BOARD'S ORDER OF
DECEMBER 22, 1937.  ON MAY 9, 1938, THE COURT DIRECTED THAT THE
TRANSCRIPT OF RECORD FILED IN THE BOARD'S PROCEEDING SHOULD BE DEEMED
TO HAVE BEEN FILED IN THE PETITIONER'S PROCEEDING TO REVIEW AS OF THE
DATE OF MAY 4TH.  ON JUNE 2, 1938, THE BOARD FILED A MOTION TO VACATE
THAT ORDER OF MAY 9TH.  AT THE SAME TIME THE BOARD MOVED THAT IN THE
EVENT OF A DENIAL OF THAT MOTION THE CASE SHOULD BE REMANDED TO THE
BOARD FOR FURTHER PROCEEDINGS. 

ON JUNE 10, 1938, THE COURT ENTERED ITS ORDER DENYING CERTAIN MOTIONS
OF THE PETITIONER FOR LEAVE TO AMEND ITS PETITION FOR REVIEW, DENYING
THE BOARD'S MOTION TO VACATE THE ORDER OF MAY 9TH, AND GRANTING THE
BOARD'S MOTION OF JUNE 2D - "TO REMAND THIS CAUSE TO THE NATIONAL LABOR
RELATIONS BOARD FOR THE PURPOSE OF SETTING ASIDE ITS FINDINGS AND ORDER
OF DECEMBER 22, 1937, AND ISSUING PROPOSED FINDINGS, AND MAKING ITS
DECISION AND ORDER UPON A RECONSIDERATION OF THE ENTIRE CASE." 

BECAUSE OF THE IMPORTANCE OF THE QUESTIONS PRESENTED IN RELATION TO
THE SCOPE OF THE COURT'S JURISDICTION AND ITS APPROPRIATE EXERCISE,
CERTIORARI WAS GRANTED TO REVIEW THE ORDER OF MAY 5TH, GRANTING THE
BOARD'S MOTION TO WITHDRAW ITS PETITION FOR ENFORCEMENT, AND THE ORDER
OF JUNE 10TH, REMANDING THE CAUSE AS ABOVE STATED.  OCTOBER 10, 1938. 

FIRST.  THE AUTHORITY CONFERRED UPON THE BOARD BY SEC. 10(D)  FN1  OF
THE NATIONAL LABOR RELATIONS ACT, TO MODIFY OR SET ASIDE ITS FINDINGS
AND ORDER, ENDED WITH THE FILING IN COURT OF THE TRANSCRIPT OF RECORD. 
UPON THE FILING OF THE TRANSCRIPT IN CONNECTION WITH THE BOARD'S
PETITION FOR ENFORCEMENT, AND NOTICE, THE CIRCUIT COURT OF APPEALS HAD
JURISDICTION OF THE PROCEEDING AS PROVIDED IN SEC. 10(E) OF THE ACT, AS
FOLLOWS: 

"UPON SUCH FILING (OF THE TRANSCRIPT), THE COURT SHALL CAUSE NOTICE
THEREOF TO BE SERVED UPON SUCH PERSON, AND THEREUPON SHALL HAVE
JURISDICTION OF THE PROCEEDING AND OF THE QUESTION DETERMINED THEREIN,
AND SHALL HAVE POWER TO GRANT SUCH TEMPORARY RELIEF OR RESTRAINING
ORDER AS IT DEEMS JUST AND PROPER, AND TO MAKE AND ENTER UPON THE
PLEADINGS, TESTIMONY, AND PROCEEDINGS SET FORTH IN SUCH TRANSCRIPT A
DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING
ASIDE IN WHOLE OR IN PART THE ORDER OF THE BOARD.  ...  THE FINDINGS OF
THE BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE
CONCLUSIVE.  IF EITHER PARTY SHALL APPLY TO THE COURT FOR LEAVE TO
ADDUCE ADDITIONAL EVIDENCE AND SHALL SHOW TO THE SATISFACTION OF THE
COURT THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR THE FAILURE TO ADDUCE SUCH EVIDENCE IN THE
HEARING BEFORE THE BOARD, ITS MEMBER, AGENT, OR AGENCY, THE COURT MAY
ORDER SUCH ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE BOARD, ITS
MEMBER, AGENT, OR AGENCY, AND TO BE MADE A PART OF THE TRANSCRIPT.  THE
BOARD MAY MODIFY ITS FINDINGS AS TO THE FACTS, OR MAKE NEW FINDINGS, BY
REASON OF ADDITIONAL EVIDENCE SO TAKEN AND FILED, AND IT SHALL FILE
SUCH MODIFIED OR NEW FINDINGS, WHICH, IF SUPPORTED BY EVIDENCE, SHALL
BE CONCLUSIVE, AND SHALL FILE ITS RECOMMENDATIONS, IF ANY, FOR THE
MODIFICATION OR SETTING ASIDE OF ITS ORIGINAL ORDER.  THE JURISDICTION
OF THE COURT SHALL BE EXCLUSIVE AND ITS JUDGMENT AND DECREE SHALL BE
FINAL, EXCEPT THAT THE SAME SHALL BE SUBJECT TO REVIEW  ...  " 49 STAT.
454, 455. 

UNDER SEC. 10(F) THE JURISDICTION OF THE CIRCUIT COURT OF APPEALS IS
OF THE SAME CHARACTER AND SCOPE IN A PROCEEDING FOR REVIEW BROUGHT BY A
PERSON AGGRIEVED BY AN ORDER OF THE BOARD AS THE JURISDICTION WHICH THE
COURT HAS IN A PROCEEDING INSTITUTED BY THE BOARD FOR ENFORCEMENT. 
FN2 

WHILE SEC. 10(F) ASSURES TO ANY AGGRIEVED PERSON OPPORTUNITY TO
CONTEST THE BOARD'S ORDER, IT DOES NOT REQUIRE AN UNNECESSARY
DUPLICATION OF PROCEEDINGS.  THE AIM OF THE ACT IS TO ATTAIN SIMPLICITY
AND DIRECTNESS BOTH IN THE ADMINISTRATIVE PROCEDURE AND ON JUDICIAL
REVIEW.  WHERE THE BOARD HAS PETITIONED FOR ENFORCEMENT UNDER SEC.
10(E) AND THE JURISDICTION OF THE COURT HAS ATTACHED, NO SEPARATE
PROCEEDING IS NEEDED ON THE PART OF THE PERSON THUS BROUGHT INTO THE
COURT.  THE BREADTH OF THE JURISDICTION CONFERRED UPON THE COURT TO SET
ASIDE OR MODIFY IN WHOLE OR IN PART THE BOARD'S ORDER, OR TO PERMIT NEW
EVIDENCE TO BE TAKEN, NECESSARILY IMPLIES THAT THE PARTY PROCEEDED
AGAINST IS ENTITLED TO RAISE ALL PERTINENT QUESTIONS AND TO OBTAIN ANY
AFFIRMATIVE RELIEF THAT IS APPROPRIATE.  HERE, PETITIONER IN THE
BOARD'S PROCEEDING HAD SOUGHT AFFIRMATIVE RELIEF AND HAD TAKEN STEPS TO
ESTABLISH THAT RIGHT.  CONSIDERING THE SCOPE AND PURPOSE OF THE
JURISDICTION OF THE COURT IN A PROCEEDING UNDER SEC. 10(E), AND THE
POSITION AND RIGHTS OF THE PERSON PROCEEDED AGAINST, WE ARE UNABLE TO
CONCLUDE THAT THE BOARD HAS AN ABSOLUTE RIGHT TO WITHDRAW ITS PETITION
AT ITS PLEASURE.  WE THINK THAT PERMISSION TO WITHDRAW MUST REST IN THE
SOUND DISCRETION OF THE COURT TO BE EXERCISED IN THE LIGHT OF THE
CIRCUMSTANCES OF THE PARTICULAR CASE.  FN3 

WHILE IN THE INSTANT CASE THERE ARE TWO PROCEEDINGS, SEPARATELY
CARRIED ON THE DOCKET, THEY WERE ESSENTIALLY ONE SO FAR AS ANY QUESTION
AS TO THE LEGALITY OF THE BOARD'S ORDER WAS CONCERNED.  PETITIONER'S
ANSWER IN THE BOARD'S PROCEEDING PRESENTED SUBSTANTIALLY THE SAME
OBJECTIONS AS THOSE RAISED IN PETITIONER'S PROCEEDING FOR REVIEW.  THE
PRESENT CONTENTIONS OF THE PARTIES ARE LARGELY ADDRESSED TO PROCEDURAL
DISTINCTIONS, BUT IF WE FOLLOW THE COURSE OF THE TWO PROCEEDINGS WE
FIND THAT THERE IS REALLY BUT ONE ULTIMATE QUESTION AND THAT IS WITH
RESPECT TO THE COURT'S FINAL ACTION IN REMANDING THE CAUSE TO THE BOARD
FOR FURTHER PROCEEDINGS. 

BEFORE THE COURT ON MAY 5TH GRANTED THE BOARD'S MOTION TO WITHDRAW
ITS PETITION, THE OTHER PROCEEDING HAD BEEN INSTITUTED BY THE FILING OF
THE PETITION FOR REVIEW ON MAY 4TH.  THAT PROCEEDING WAS TAKEN BY
PETITIONER AS A PERSON AGGRIEVED BY THE ORDER OF DECEMBER 22, 1937, AND
WAS DOUBTLESS PROMPTED BY THE BOARD'S MOTION TO WITHDRAW ITS OWN
PETITION.  AS THE TRANSCRIPT OF THE RECORD OF THE ADMINISTRATIVE
PROCEEDING HAD ALREADY BEEN CERTIFIED AND FILED, IT WAS WITHIN THE
COURT'S CONTROL.  THE ORDER OF MAY 5TH WAS AMENDED ON MAY 9TH SO AS TO
PRECLUDE THE WITHDRAWAL OF THE TRANSCRIPT, AND ON THE SAME DAY THE
COURT ORDERED THAT THE TRANSCRIPT BE DEEMED TO BE FILED IN THE
PETITIONER'S PROCEEDING AS OF MAY 4TH.  WE SEE NO REASON TO DOUBT THE
POWER OF THE COURT TO RETAIN THE TRANSCRIPT OR TO AMEND ITS ORDER OF
MAY 5TH ACCORDINGLY, AND CERTIORARI HAS NOT BEEN SOUGHT BY THE BOARD IN
RELATION TO THE ORDER OF MAY 9TH.  OUR DECISION IN IN RE NATIONAL LABOR
RELATIONS BOARD, 304 U.S. 486, IS NOT APPOSITE.  THERE THE TRANSCRIPT
HAD NOT BEEN FILED, THE COURT HAD NOT ACQUIRED JURISDICTION OF THE
SUBJECT MATTER, AND THE BOARD STILL HAD THE AUTHORITY CONFERRED UPON IT
BY SEC. 10(D).  IN THE CIRCUMSTANCES OF THE PRESENT CASE WE THINK IT IS
CLEAR THAT THE COURT WAS POSSESSED OF EXCLUSIVE JURISDICTION OF THE
ADMINISTRATIVE PROCEEDING "AND OF THE QUESTION DETERMINED THEREIN," AND
THUS OF THE POWER OF "ENFORCING, MODIFYING, AND ENFORCING AS SO
MODIFIED, OR SETTING ASIDE IN WHOLE OR IN PART THE ORDER OF THE
BOARD."  SEC. 10(F).  AS ON THE BOARD'S PETITION THE COURT COULD GRANT
AFFIRMATIVE RELIEF TO THE PERSON AGAINST WHOM THE BOARD'S ORDER WAS
DIRECTED, SO ON THE COURT'S ENTERTAINING THE PETITION OF THAT PERSON
FOR REVIEW THE BOARD COULD SEEK NOT MERELY TO HAVE THE PETITION DENIED
BUT TO HAVE ITS ORDER ENFORCED, REGARDLESS OF ANY SEPARATE PROCEEDING
TO THAT END. 

IT THUS APPEARS THAT NEITHER THE ORDER OF MAY 5TH, GRANTING THE BOARD
PERMISSION TO WITHDRAW ITS PETITION, NOR THE ATTEMPT OF THE BOARD ON
MAY 6TH TO REASSUME CONTROL OF THE ADMINISTRATIVE PROCEEDING, NOR THE
BOARD'S WITHDRAWAL OF ITS PETITION ON JUNE 2D, ACCOMPLISHED ANYTHING OF
SUBSTANCE, AS THE BOARD, IN THE PRESENCE OF THE COURT'S CONTINUED AND
EXCLUSIVE JURISDICTION, REMAINED WITHOUT AUTHORITY TO DEAL WITH ITS
ORDER.  AND ANY QUESTION AS TO THE PROPRIETY OF THE COURT'S ORDER OF
MAY 5TH BECAME ONE OF MERELY ACADEMIC INTEREST AFTER THE COURT BY ITS
ORDER OF JUNE 10TH REMANDED THE CAUSE TO THE BOARD.  WE TURN TO THE
CONSIDERATION OF THAT ORDER. 

SECOND.  THE CAUSE WAS REMANDED TO THE BOARD FOR THE PURPOSE "OF
SETTING ASIDE ITS FINDINGS AND ORDER OF DECEMBER 22, 1937, AND ISSUING
PROPOSED FINDINGS, AND MAKING ITS DECISION AND ORDER UPON A
RECONSIDERATION OF THE ENTIRE CASE."  THE BOARD IN ITS APPLICATION FOR
THE REMAND STATED THAT IT WOULD TAKE THAT COURSE.  THE SPECIFIED
PURPOSE QUALIFIED THE COURT'S ORDER.  IT CREATED A CONDITION WHICH THE
BOARD WAS BOUND TO OBSERVE.  IF THE BOARD WITHIN A REASONABLE TIME
FAILED TO SET ASIDE ITS FINDINGS AND ORDER, WE HAVE NO DOUBT THAT THE
COURT COULD VACATE ITS ORDER OF REMAND AND PROCEED WITH ITS
CONSIDERATION OF THE PETITION TO REVIEW.  THE PROPRIETY OF THE ORDER OF
REMAND MUST BE CONSIDERED IN THAT ASPECT. 

THIRD.  IF THE COURT ITSELF HAD SET ASIDE THE FINDINGS AND ORDER OF
THE BOARD UPON THE GROUND, AS ASSERTED BY PETITIONER, THAT THE BOARD
HAD NOT CONSIDERED THE EVIDENCE AND MADE ITS OWN FINDINGS, BUT HAD
ADOPTED AS ITS OWN A DECISION PROPOSED BY ITS SUBORDINATES WITHOUT
AFFORDING PETITIONER ANY OPPORTUNITY TO BE HEARD THEREON, THE COURT
COULD HAVE REMANDED THE CAUSE FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH ITS OPINION.  THAT GROUND BEING SUFFICIENT FOR SETTING ASIDE THE
ORDER, THERE IS NO PRINCIPLE OF PROCEDURE IN RELATION TO THE REVIEW
EITHER OF JUDICIAL DECREES OR ADMINISTRATIVE ORDERS WHICH WOULD REQUIRE
THE COURT TO EXAMINE OTHER GROUNDS OF ATTACK. 

IT IS FAMILIAR APPELLATE PRACTICE TO REMAND CAUSES FOR FURTHER
PROCEEDINGS WITHOUT DECIDING THE MERITS, WHERE JUSTICE DEMANDS THAT
COURSE IN ORDER THAT SOME DEFECT IN THE RECORD MAY BE SUPPLIED.  FN4
SUCH A REMAND MAY BE MADE TO PERMIT FURTHER EVIDENCE TO BE TAKEN OR
ADDITIONAL FINDINGS TO BE MADE UPON ESSENTIAL POINTS.  FN5  SO, WHEN A
DISTRICT COURT HAS NOT MADE FINDINGS IN ACCORDANCE WITH OUR CONTROLLING
RULE (EQUITY RULE 70 1/2) IT IS OUR PRACTICE TO SET ASIDE THE DECREE
AND REMAND THE CAUSE FOR FURTHER PROCEEDINGS.  FN6  THE JURISDICTION TO
REVIEW THE ORDERS OF THE LABOR RELATIONS BOARD IS VESTED IN A COURT
WITH EQUITY POWERS, AND WHILE THE COURT MUST ACT WITHIN THE BOUNDS OF
THE STATUTE AND WITHOUT INTRUDING UPON THE ADMINISTRATIVE PROVINCE, IT
MAY ADJUST ITS RELIEF TO THE EXIGENCIES OF THE CASE IN ACCORDANCE WITH
THE EQUITABLE PRINCIPLES GOVERNING JUDICIAL ACTION.  THE PURPOSE OF THE
JUDICIAL REVIEW IS CONSONANT WITH THAT OF THE ADMINISTRATIVE PROCEEDING
ITSELF,  - TO SECURE A JUST RESULT WITH A MINIMUM OF TECHNICAL
REQUIREMENTS.  THE STATUTE WITH RESPECT TO A JUDICIAL REVIEW OF ORDERS
OF THE LABOR RELATIONS BOARD FOLLOWS CLOSELY THE STATUTORY PROVISIONS
IN RELATION TO THE ORDERS OF THE FEDERAL TRADE COMMISSION, AND AS TO
THE LATTER IT IS WELL ESTABLISHED THAT THE COURT MAY REMAND THE CAUSE
TO THE COMMISSION FOR FURTHER PROCEEDINGS TO THE END THAT VALID AND
ESSENTIAL FINDINGS MAY BE MADE.  FEDERAL TRADE COMM'N V. CURTIS
PUBLISHING CO., 260 U.S. 568, 580, 583; INTERNATIONAL SHOE CO. V.
FEDERAL TRADE COMM'N, 280 U.S. 291, 297; FEDERAL TRADE COMM'N V. ROYAL
MILLING CO., 288 U.S. 212, 218; PROCTER & GAMBLE CO. V. FEDERAL TRADE
COMM'N, 11 F.2D 47, 48, 49; OHIO LEATHER CO. V. FEDERAL TRADE COMM'N,
45 F.2D 39, 42.  FN7  SIMILAR ACTION HAS BEEN TAKEN UNDER THE NATIONAL
LABOR RELATIONS ACT IN AGWILINES, INC. V. NATIONAL LABOR RELATIONS
BOARD, 87 F.2D 146, 155.  SEE, ALSO, NATIONAL LABOR RELATIONS BOARD V.
BELL OIL & GAS CO., 91 F.2D 509, 515.  THE "REMAND" DOES NOT ENCROACH
UPON ADMINISTRATIVE FUNCTIONS.  IT MEANS SIMPLY THAT THE CASE IS
RETURNED TO THE ADMINISTRATIVE BODY IN ORDER THAT IT MAY TAKE FURTHER
ACTION IN ACCORDANCE WITH THE APPLICABLE LAW.  SEE FEDERAL RADIO COMM'N
V. NELSON BROTHERS CO., 289 U.S. 266, 278. 

SUCH A REMAND DOES NOT DISMISS OR TERMINATE THE ADMINISTRATIVE
PROCEEDING.  IF FINDINGS ARE LACKING WHICH MAY PROPERLY BE MADE UPON
THE EVIDENCE ALREADY RECEIVED, THE COURT DOES NOT REQUIRE THE EVIDENCE
TO BE REHEARD.  FEDERAL TRADE COMM'N V. CURTIS PUBLISHING CO., SUPRA;
INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, SUPRA.  IF FURTHER
EVIDENCE IS NECESSARY AND AVAILABLE TO SUPPLY THE BASIS FOR FINDINGS ON
MATERIAL POINTS, THAT EVIDENCE MAY BE TAKEN.  FEDERAL TRADE COMM'N V.
ROYAL MILLING CO., SUPRA; PROCTER & GAMBLE CO. V. FEDERAL TRADE COMM'N,
SUPRA; OHIO LEATHER CO. V. FEDERAL TRADE COMM'N, SUPRA; AGWILINES, INC.
V. NATIONAL LABOR RELATIONS BOARD, SUPRA. WHATEVER FINDINGS OR ORDER
MAY SUBSEQUENTLY BE MADE WILL BE SUBJECT TO CHALLENGE IF NOT ADEQUATELY
SUPPORTED OR THE BOARD HAS FAILED TO ACT IN ACCORDANCE WITH THE
STATUTORY REQUIREMENTS. 

FOURTH.  THE PRESENT CONTROVERSY THUS COMES TO THE NARROW POINT THAT
INSTEAD OF SETTING ASIDE THE BOARD'S FINDINGS AND ORDER, THE COURT HAS
ALLOWED THE BOARD ITSELF TO SET THEM ASIDE.  THE CONTENTION ON THAT
GROUND IS WITHOUT SUBSTANCE.  IN EITHER EVENT THE FINDINGS AND ORDER
ARE VACATED.  PETITIONER'S OBJECTION TO THE ORDER BECAUSE OF LACK OF
DUE HEARING RESULTS IN THE ABANDONMENT OF THE FINDINGS AND ORDER AND
PETITIONER WILL THUS BE COMPLETELY FREED FROM ANY DETERMINATION THEY
CONTAIN OR ANY OBLIGATION THEY IMPOSE. 

PETITIONER SAYS THAT THE BOARD HAS NOT CONFESSED ERROR.  THIS IS
IMMATERIAL IF THE ASSAILED FINDINGS AND ORDER ARE SET ASIDE.  NOR IS IT
IMPORTANT THAT THE COURT HAS NOT HELD THE FINDINGS AND ORDER TO BE
VOID.  IT IS ELEMENTARY THAT THE COURT IS NOT BOUND TO DETERMINE
QUESTIONS WHICH HAVE BECOME ACADEMIC. 

THERE IS NOTHING IN THE STATUTE, OR IN THE PRINCIPLES GOVERNING
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, WHICH PRECLUDES THE COURT
FROM GIVING AN ADMINISTRATIVE BODY AN OPPORTUNITY TO MEET OBJECTIONS TO
ITS ORDER BY CORRECTING IRREGULARITIES IN PROCEDURE, OR SUPPLYING
DEFICIENCIES IN ITS RECORD, OR MAKING ADDITIONAL FINDINGS WHERE THESE
ARE NECESSARY, OR SUPPLYING FINDINGS VALIDLY MADE IN THE PLACE OF THOSE
ATTACKED AS INVALID.  THE APPLICATION FOR REMAND IN THIS INSTANCE WAS
NOT ON FRIVOLOUS GROUNDS OR FOR ANY PURPOSE THAT MIGHT BE CONSIDERED
DILATORY OR VEXATIOUS.  PETITIONER HAD RAISED A SERIOUS QUESTION AS TO
THE VALIDITY OF THE FINDINGS AND ORDER.  THE BOARD PROPERLY RECOGNIZED
THE GRAVITY OF THE CONTENTION AND SOUGHT TO MEET IT BY VOLUNTARILY
DOING WHAT THE COURT COULD HAVE COMPELLED.  THAT WAS IN THE INTEREST OF
A PROMPT DISPOSITION, AND WHATEVER DELAY HAS RESULTED IS DUE TO
PETITIONER'S RESISTANCE TO THAT COURSE. 

PETITIONER INSISTS THAT IT HAD OTHER OBJECTIONS TO THE BOARD'S
CONDUCT OF THE PROCEEDING.  BUT IT WAS NOT NECESSARY FOR THE COURT TO
CONSIDER THEM, AS THE SETTING ASIDE OF THE FINDINGS AND ORDER CARRIED
WITH IT THE OPPORTUNITY FOR RECONSIDERATION AND THE MAKING OF A NEW
RECORD.  WHAT FINDINGS OR ORDER WOULD THUS BE MADE BECAME A MATTER OF
CONJECTURE AND IN ANY EVENT THESE AND THE MANNER OF ARRIVING AT THEM
WOULD BE SUBJECT TO ANY JUSTIFIED CRITICISM. 

AS THE SUBSTANTIAL QUESTION IS PRESENTED BY THE ORDER OF JUNE 10TH,
THE WRIT OF CERTIORARI IN NO. 182 IS DISMISSED.  THE ORDER OF JUNE 10TH
IN NO. 183 IS AFFIRMED.  AFFIRMED. 

FN1  SECTION 10(D) PROVIDES: 

"(D)  UNTIL A TRANSCRIPT OF THE RECORD IN A CASE SHALL HAVE BEEN
FILED IN A COURT, AS HEREINAFTER PROVIDED, THE BOARD MAY AT ANY TIME,
UPON REASONABLE NOTICE AND IN SUCH MANNER AS IT SHALL DEEM PROPER,
MODIFY OR SET ASIDE, IN WHOLE OR IN PART, ANY FINDING OR ORDER MADE OR
ISSUED BY IT."  49 STAT. 454. 

FN2  SECTION 10(F) PROVIDES: 

"(F)  ANY PERSON AGGRIEVED BY A FINAL ORDER OF THE BOARD GRANTING OR
DENYING IN WHOLE OR IN PART THE RELIEF SOUGHT MAY OBTAIN A REVIEW OF
SUCH ORDER IN ANY CIRCUIT COURT OF APPEALS OF THE UNITED STATES IN THE
CIRCUIT WHEREIN THE UNFAIR LABOR PRACTICE IN QUESTION WAS ALLEGED TO
HAVE BEEN ENGAGED IN  ...  BY FILING IN SUCH COURT A WRITTEN PETITION
PRAYING THAT THE ORDER OF THE BOARD BE MODIFIED OR SET ASIDE.  A COPY
OF SUCH PETITION SHALL BE FORTHWITH SERVED UPON THE BOARD, AND
THEREUPON THE AGGRIEVED PARTY SHALL FILE IN THE COURT A TRANSCRIPT OF
THE ENTIRE RECORD IN THE PROCEEDING, CERTIFIED BY THE BOARD, INCLUDING
THE PLEADING AND TESTIMONY UPON WHICH THE ORDER COMPLAINED OF WAS
ENTERED AND THE FINDINGS AND ORDER OF THE BOARD.  UPON SUCH FILING, THE
COURT SHALL PROCEED IN THE SAME MANNER AS IN THE CASE OF AN APPLICATION
BY THE BOARD UNDER SUBSECTION (E), AND SHALL HAVE THE SAME EXCLUSIVE
JURISDICTION TO GRANT TO THE BOARD SUCH TEMPORARY RELIEF OR RESTRAINING
ORDER AS IT DEEMS JUST AND PROPER, AND IN LIKE MANNER TO MAKE AND ENTER
A DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING
ASIDE IN WHOLE OR IN PART THE ORDER OF THE BOARD; AND THE FINDINGS OF
THE BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL IN LIKE
MANNER BE CONCLUSIVE."  49 STAT. 455. 

FN3  SEE COOPER V. LEWIS, 2 PHILLIPS, CH. 177, 181; BANK V. ROSE, 1
RICH EQ., 292, 294; STEVENS V. THE RAILROADS, 4 F. 97, 105; CHICAGO &
ALTON R. CO. V. UNION ROLLING MILL CO., 109 U.S. 702, 713-715; CITY OF
DETROIT V. DETROIT CITY RY. CO., 55 F. 569, 572, 573; PULLMAN'S PALACE
CAR CO. V. CENTRAL TRANSPORTATION CO., 171 U.S. 138, 146; EX PARTE
SKINNER & EDDY CORP., 265 U.S. 86, 93, 94; UNITED MOTORS SERVICE V.
TROPIC-AIRE, 57 F.2D 479, 481, 482; JONES V. SECURITIES & EXCHANGE
COMM'N, 298 U.S. 1, 19, 20. 

FN4  ESTHO V. LEAR, 7 PET. 130; LEVY V. ARREDONDO, 12 PET. 218; VILLA
V. VAN SCHAICK, 299 U.S. 152, 155, 156. 

FN5  CHICAGO, M. & ST. P. RY. CO. V. TOMPKINS, 176 U.S. 167, 179,
180; UNITED STATES V. RIO GRANDE IRRIGATION CO., 184 U.S. 416, 424;
LINCOLN GAS & ELECTRIC LIGHT CO. V. LINCOLN, 223 U.S. 349, 361-365. 

FN6  RAILROAD COMMISSION V. MAXCY, 281 U.S. 82; INTERSTATE CIRCUIT,
INC. V. UNITED STATES, 304 U.S. 55. 

FN7  COMPARE TEXAS & PACIFIC RY. CO. V. INTERSTATE COMMERCE COMM'N,
162 U.S. 197, 238, 239; SOUTHERN RAILWAY CO. V. ST. LOUIS HAY & GRAIN
CO., 214 U.S. 297, 302; FLORIDA V. UNITED STATES, 292 U.S. 1, 9;
BROTHERHOOD OF RAILROAD TRAINMEN V. NATIONAL MEDIATION BOARD, 66 APP.
D.C. 375; 88 F.2D 757, 761. 

MR. JUSTICE ROBERTS DID NOT HEAR THE ARGUMENT AND TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE. 
..END :


















PATTERSON V. STANOLIND CO., 305 U.S. 376 


NO. 113.  ARGUED DECEMBER 7, 1938.  - DECIDED JANUARY 3, 1939. 


1.  THE OWNER-LESSOR OF THE MINERAL RIGHTS IN A TRACT OF LAND ON WHICH
WAS A PRODUCING OIL WELL WAS NOT DEPRIVED OF PROPERTY RIGHTS IN
VIOLATION OF THE FOURTEENTH AMENDMENT, NOR WERE HIS CONTRACTUAL RIGHTS
IMPAIRED, BY AN ORDER OF THE OKLAHOMA CORPORATION COMMISSION, MADE
AFTER DUE HEARING AND PURSUANT TO C. 59, OKLAHOMA SESSION LAWS, 1935,
WHEREBY PART OF HIS LAND, WITH THE WELL, WAS INCLUDED IN THE SAME 10
ACRE WELL-SPACING AND DRILLING UNIT WITH LAND OF OTHER OWNER-LESSORS,
AND WHEREBY HE WAS OBLIGED, UNDER SEC. 4(C) OF THE STATUTE, TO SHARE
WITH THEM IN ONE-EIGHTH OF THE PRODUCTION FROM THE WELL, IN PROPORTION
TO THEIR RESPECTIVE ACREAGES IN SUCH UNIT - IT BEING ASSUMED, AS FOUND
BY THE COMMISSION, THAT THERE IS A COMMON SOURCE OF SUPPLY, AND THAT
ESTABLISHMENT OF THE UNITS WILL TEND TO EFFECT PROPER DRAINAGE OF THE
OIL POOL, RESULT IN UNIFORM WITHDRAWAL AND GREATEST ULTIMATE RECOVERY
OF OIL, CONSERVE RESERVOIR ENERGY, AND PROTECT THE RELATIVE RIGHTS OF
THE LEASEHOLDERS AND ROYALTY-OWNERS IN THE COMMON SOURCE OF SUPPLY.  P.
377. 

2.  CONTENTION THAT REGULATORY PROVISIONS OF C. 59, OKLA. SESS. LAWS,
1935, AUTHORIZING THE STATE CORPORATION COMMISSION TO FIX WELL-SPACING
AND DRILLING UNITS ARE VOID FOR INDEFINITENESS - HELD WITHOUT MERIT. 
P. 379. 

PATTERSON V. STANOLIND OIL & GAS CO. ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

APPEAL FROM 182 OKLA. 155; 77 P.2D 83, DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 

PER CURIAM. 

IN THIS SUIT, BROUGHT TO RECOVER HIS SHARE OF OIL ROYALTIES, THE
PLAINTIFF CHALLENGED THE VALIDITY, UNDER THE CONTRACT CLAUSE AND THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT OF
THE FEDERAL CONSTITUTION, OF THE WELL-SPACING ACT OF THE STATE OF
OKLAHOMA (CHAP. 59, OKLA. SESS. LAWS 1935) AND AN ORDER MADE THEREUNDER
BY THE CORPORATION COMMISSION OF THAT STATE.  THE SUPREME COURT OF THE
STATE, AFFIRMING THE JUDGMENT OF THE DISTRICT COURT WITH A MODIFICATION
IMMATERIAL HERE, SUSTAINED THE VALIDITY OF THE STATUTE AND ORDER.  182
OKLA. 155; 77 P.2D 83.  THE PLAINTIFF BRINGS THIS APPEAL. 

THE CORPORATION COMMISSION FIXED THE BOUNDARIES OF THE COMMON SOURCE
OF OIL SUPPLY IN THE NORTH WELLSTON AREA IN LINCOLN COUNTY, OKLAHOMA,
SO AS TO INCLUDE 520 ACRES, AND AUTHORIZED TEN-ACRE WELL-SPACING UNITS
WITHIN THAT AREA.  THE WELL IN QUESTION IS IN THE APPROXIMATE CENTER OF
ONE OF THESE TEN-ACRE UNITS.  THAT UNIT CONSISTS OF 6 1/4 ACRES WHICH
LIE IN TRACT "A" AND 3 3/4 ACRES IN TRACT "B," THESE TRACTS BEING IN
SEPARATE OWNERSHIP.  THE WELL IS LOCATED ON TRACT "A."  THE STATUTE,
SEC. 4(C), PROVIDES: 

"IN THE EVENT A PRODUCING WELL, OR WELLS, IS COMPLETED UPON A UNIT
WHERE THERE ARE TWO OR MORE SEPARATELY OWNED TRACTS, ANY ROYALTY OWNER,
OR GROUP OF ROYALTY OWNERS, HOLDING THE ROYALTY INTEREST UNDER A
SEPARATELY OWNED TRACT, SHALL SHARE IN ONE-EIGHTH (1/8) OF ALL THE
PRODUCTION FROM THE WELL OR WELLS DRILLED WITHIN THE UNIT IN THE
PROPORTION THAT THE ACREAGE OF THEIR SEPARATELY OWNED TRACT BEARS TO
THE ENTIRE ACREAGE OF THE UNIT." 

UNDER THAT PROVISION, AS CONSTRUED BY THE STATE COURT, THE OWNERS OF
THE MINERAL RIGHTS IN THE 3 3/4 ACRES OF THE DRILLING UNIT ARE
PERMITTED TO SHARE WITH THE PLAINTIFF, AND HIS CO-OWNERS OF THE MINERAL
RIGHTS IN THE OTHER 6 1/4 ACRES OF THE UNIT, THE OIL AND GAS PRODUCED
FROM THE WELL ALTHOUGH IT IS LOCATED ENTIRELY UPON THE SURFACE OF THE 6
1/4 ACRE TRACT.  PLAINTIFF CONTENDS THAT THIS DISTRIBUTION AMONG THE
OWNERS OF THE 3 3/4 ACRES WORKS AN UNCONSTITUTIONAL DEPRIVATION OF HIS
PROPERTY AND AN IMPAIRMENT OF HIS CONTRACTUAL RIGHTS.  THE CORPORATION
COMMISSION FOUND AS FOLLOWS: 

"THAT THE SAID WELL AS ABOVE DESCRIBED IS LOCATED IN THE APPROXIMATE
CENTER OF A 10-ACRE TRACT OF LAND, AND THAT TAKING INTO CONSIDERATION
THE DEPTH OF THE WELL NOW PRODUCING IN SAID COMMON SOURCE OF SUPPLY,
THE THICKNESS, POROSITY, AND PERMEABILITY OF THE PRODUCING SAND, THE
NATURE AND CHARACTER OF THE RESERVOIR ENERGY, THE FORMATIONS
ENCOUNTERED IN THE DRILLING OF THE WELL, AND THE HISTORY AND PRODUCTIVE
CHARACTERISTICS OF WELLS IN OTHER COMMON SOURCES OF SUPPLY WHICH HAVE
SIMILAR FORMATIONS, AND FROM OTHER GEOLOGICAL AND SCIENTIFIC
INFORMATION AND DATA AS SHOWN BY THE RECORDS, THE COMMISSION FINDS THAT
A WELL-SPACING AND DRILLING UNIT OF 10 ACRES AND OF UNIFORM SIZE SHOULD
BE ESTABLISHED IN THE SAID NORTH WELLSTON POOL; THAT THE SAME WOULD
TEND TO EFFECT THE PROPER DRAINAGE OF OIL FROM SAID POOL, AND WOULD
RESULT IN UNIFORM WITHDRAWAL AND IN THE GREATEST ULTIMATE RECOVERY OF
OIL, AND WOULD BEST CONSERVE RESERVOIR ENERGY, AND WOULD PROTECT THE
RELATIVE RIGHTS OF THE LEASEHOLDERS AND ROYALTY OWNERS IN SAID COMMON
SOURCE OF SUPPLY." 

IT IS ADMITTED THAT THE COMMISSION MADE ITS FINDINGS AND ORDER AFTER
DUE HEARING.  THE EVIDENCE UNDERLYING ITS FINDINGS IS NOT IN THE
RECORD.  ACCORDINGLY, AS THE STATE COURT SAID, IT MUST BE ASSUMED "THAT
THE SOURCE OF SUPPLY OF THE WELL IN QUESTION IS COMMON TO THE LAND
ADJOINING IT AND THAT SAID POOL UNDERLIES NOT ONLY THE 6 1/4 ACRES OF
LAND ON WHICH THE WELL IS LOCATED BUT THAT IT ALSO EXTENDS BENEATH THE
3 3/4 ACRE TRACT."  IN THAT VIEW THE STATE COURT APPLIED WELL SETTLED
PRINCIPLES IN DENYING PLAINTIFF'S CONTENTION UNDER THE FOURTEENTH
AMENDMENT (OHIO OIL CO. V. INDIANA, 177 U.S. 190; LINDSLEY V. NATURAL
CARBONIC GAS CO., 220 U.S. 61; WALLS V. MIDLAND CARBON CO., 254 U.S.
300; BANDINI PETROLEUM CO. V. SUPERIOR COURT, 284 U.S. 8; CHAMPLIN
REFINING CO. V. CORPORATION COMMISSION, 286 U.S. 210) AND UNDER THE
CONTRACT CLAUSE (RAST V. VAN DEMAN & LEWIS CO., 240 U.S. 342, 362, 363;
UNION DRY GOODS CO. V. GEORGIA PUBLIC SERVICE CORP., 248 U.S. 372, 376;
SPROLES V. BINFORD, 286 U.S. 374, 390, 391; STEPHENSON V. BINFORD, 287
U.S. 251, 276; HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398,
435, 436).  THE ARGUMENT, THAT THE REGULATORY PROVISIONS OF THE STATUTE
AUTHORIZING THE COMMISSION TO MAKE ITS ORDER FIXING THE DRILLING UNIT
ARE VOID FOR INDEFINITENESS, IS WITHOUT MERIT.  BANDINI V. SUPERIOR
COURT, SUPRA; CHAMPLIN REFINING CO. V. CORPORATION COMMISSION, SUPRA. 

IN THE LIGHT OF OUR PREVIOUS DECISIONS, THE PLAINTIFF HAS FAILED TO
RAISE A SUBSTANTIAL FEDERAL QUESTION AND THE APPEAL IS DISMISSED FOR
THE WANT OF JURISDICTION.  HANNIS DISTILLING CO. V. BALTIMORE, 216 U.S.
285, 288; LEVERING & GARRIGUES CO. V. MORRIN, 289 U.S. 103, 105, 106. 
DISMISSED. 
..END :
























BACON & SONS V. MARTIN, 305 U.S. 380 


NO. 203.  ARGUED DECEMBER 15, 1938.  - DECIDED JANUARY 3, 1939. 


THE TAX IMPOSED BY KENTUCKY ON THE "RECEIPT" OF COSMETICS IN THE STATE
BY ANY KENTUCKY RETAILER IS NOT A DIRECT BURDEN ON INTERSTATE COMMERCE
AS APPLIED TO ARTICLES PURCHASED IN OTHER STATES AND TRANSPORTED TO THE
RETAILER AT HIS PLACE OF BUSINESS IN KENTUCKY, SINCE, AS CONSTRUED BY
THE STATE'S HIGHEST COURT, THE IMPOSITION IS NOT UPON THE ACT OF
RECEIVING BUT UPON SUBSEQUENT SALE AND USE. 

J. BACON & SONS V. MARTIN. 

APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. 

APPEAL FROM 273 KY. 389; 116 S.W.2D 963, DISMISSED FOR WANT OF A
SUBSTANTIAL FEDERAL QUESTION. 

PER CURIAM. 

PLAINTIFF SOUGHT JUDGMENT DECLARING INVALID A STATUTE IMPOSING A TAX
ON "THE RECEIPT OF COSMETICS IN THE STATE BY ANY KENTUCKY RETAILER,"
FN1  AS APPLIED TO ARTICLES PURCHASED FROM MANUFACTURERS AND DEALERS IN
OTHER STATES AND TRANSPORTED TO PLAINTIFF AT ITS PLACE OF BUSINESS IN
KENTUCKY.  PLAINTIFF CONTENDED THAT THE TAX WAS ON "THE ACT OF
RECEIVING" AND HENCE WAS A DIRECT BURDEN UPON INTERSTATE COMMERCE.  THE
COURT OF APPEALS OF KENTUCKY THUS CONSTRUED THE STATUTE: 

"THE WORD 'RECEIPT' IS NOT USED IN A LIMITED SENSE, BUT IN THE SENSE
THAT IT HAS ALREADY BEEN RECEIVED BY THE RETAILER AND IS NOW IN HIS
USE.  ...  THAT WORD 'RECEIPT' PRESUPPOSES THAT THE COSMETICS WERE NOW
IN USE AND AFTER THE SALE HAD BEEN CONSUMMATED. 

"  ...  IT, THEREFORE, FOLLOWS THAT THE IMPOSITION OF THE TAX AGAINST
THE RETAILER IS NOT ON THE ACT OF RECEIVING THE COSMETICS, BUT ON THE
SALE AND USE THEREOF, AFTER THE RETAILER HAS RECEIVED THEM, THAT
CONSTITUTES THE EXCISE TAX.  WHEN WE APPLY THE INTENDED AND CORRECT
MEANING OF THE WORD 'RECEIPT' AS USED IN THE ACT, IT IS CONCLUSIVE TO
OUR MINDS THAT THE TAX OF THE RETAILER, REFERRED TO, IS PAID WHEN THE
ARTICLES ARE IN HIS POSSESSION AND WHEN THE MERCHANT HAS UNLIMITED
CONTROL AND DOMINION OVER THE COSMETICS."  MARTIN V. J. BACON & SONS,
268 KY. 612, 618, 619; 105 S.W.2D 569, 572. 

ADHERING TO THAT CONSTRUCTION, THE STATE COURT AFFIRMED THE PRESENT
JUDGMENT SUSTAINING THE TAX.  273 KY. 389; 116 S.W.2D 963.  THE
PLAINTIFF APPEALS. 

THE CONSTRUCTION OF THE STATUTE BY THE STATE COURT IS BINDING UPON
US.  SUPREME LODGE, KNIGHTS OF PYTHIAS V. MEYER, 265 U.S. 30, 32, 33;
HICKLIN V. CONEY, 290 U.S. 169, 172; HARTFORD ACCIDENT & INDEMNITY CO.
V. NELSON MANUFACTURING CO., 291 U.S. 352, 358.  AND IN THE LIGHT OF
ITS CONSTRUCTION THE STATE COURT APPLIED THE PRINCIPLES DECLARED IN OUR
DECISIONS.  MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, 93; GREGG DYEING
CO. V. QUERY, 286 U.S. 472, 478, 479; NASHVILLE, C. & ST. L. RY. CO. V.
WALLACE, 288 U.S. 249, 265, 266; EDELMAN V. BOEING AIR TRANSPORT, INC.,
289 U.S. 249, 252. 

THE APPEAL IS DISMISSED FOR THE WANT OF A SUBSTANTIAL FEDERAL
QUESTION.  DISMISSED. 

FN1  SUBSECTION (F) OF SEC. 2 OF CHAPTER 3 OF THE 1936 SPECIAL BUDGET
AND SPECIAL REVENUE SESSION OF THE LEGISLATURE OF KENTUCKY.  CARROLL'S
KENTUCKY STATUTES, BALDWIN'S 1936 REVISION, SECS. 4281D-1 TO 4281D-25. 

..END :









MINNESOTA V. UNITED STATES, 305 U.S. 382 


NO. 73.  ARGUED NOVEMBER 10, 1938.  - DECIDED JANUARY 3, 1939.  - 95
F.2D 468, AFFIRMED. 


1.  THE UNITED STATES IS AN INDISPENSABLE PARTY DEFENDANT IN A
CONDEMNATION PROCEEDING BROUGHT BY A STATE TO ACQUIRE A RIGHT OF WAY
OVER LANDS WHICH THE UNITED STATES OWNS IN FEE AND HOLDS IN TRUST FOR
INDIAN ALLOTTEES.  P. 386. 

2.  THE EXEMPTION OF THE UNITED STATES FROM BEING SUED WITHOUT ITS
CONSENT EXTENDS TO A SUIT BY A STATE.  SUCH A SUIT CAN NOT BE
MAINTAINED UNLESS AUTHORIZED BY ACT OF CONGRESS.  P. 387. 

3.  THE PROVISION OF SEC. 3 OF THE ACT OF MARCH 3, 1901 THAT, WHERE
INDIAN ALLOTTED LANDS ARE CONDEMNED UNDER STATE LAWS FOR A PUBLIC
PURPOSE, "THE MONEY AWARDED AS DAMAGES SHALL BE PAID TO THE ALLOTTEE,"
DOES NOT REQUIRE THE CONCLUSION THAT THE UNITED STATES IS NOT AN
INDISPENSABLE PARTY TO THE CONDEMNATION PROCEEDINGS:  IN VIEW OF THE
RESTRAINTS ON ALIENATION IMPOSED BY OTHER ACTS OF CONGRESS; THE
INTEREST OF THE UNITED STATES AS TRUSTEE IN THE OUTCOME OF THE
PROCEEDING (THE AMOUNT TO BE PAID); AND THE AUTHORITY OF THE SECRETARY
OF THE INTERIOR IN RESPECT OF REINVESTING THE PROCEEDS.  P. 387. 

4.  WHERE JURISDICTION HAS NOT BEEN CONFERRED BY CONGRESS, NO OFFICER
OF THE UNITED STATES HAS POWER TO GIVE ANY COURT JURISDICTION OF A SUIT
AGAINST THE UNITED STATES.  THE FACTS THAT THE UNITED STATES ATTORNEY
PETITIONED FOR REMOVAL OF A SUIT FROM THE STATE TO THE FEDERAL COURT,
AND STIPULATED WITH COUNSEL FOR PLAINTIFF THAT THE SUIT COULD BE SO
REMOVED, ARE WITHOUT LEGAL SIGNIFICANCE IN THIS REGARD.  P. 388. 

5.  A FEDERAL COURT IS WITHOUT JURISDICTION OF A SUIT REMOVED TO IT
FROM A STATE COURT WHICH ITSELF LACKED JURISDICTION OF THE SUBJECT
MATTER OR THE PARTIES; EVEN THOUGH THE FEDERAL COURT MIGHT HAVE HAD
JURISDICTION HAD THE SUIT BEEN BROUGHT THERE ORIGINALLY.  P. 389. 

6.  THE PROVISION OF THE SECOND PARAGRAPH OF SEC. 3 OF THE ACT OF
MARCH 3, 1901, AUTHORIZING "CONDEMNATION OF" LANDS ALLOTTED IN
SEVERALTY TO INDIANS "IN THE SAME MANNER AS LAND OWNED IN FEE,"
CONSTRUED AS NOT AUTHORIZING SUIT IN A STATE COURT.  P. 389. 

THE CONTENTION THAT A LONG ESTABLISHED ADMINISTRATIVE PRACTICE MAKES
FOR A CONTRARY INTERPRETATION IS UNSUPPORTED. 

MINNESOTA V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 580, TO REVIEW A JUDGMENT WHICH REVERSED, WITH
DIRECTIONS TO DISMISS, A JUDGMENT GRANTING THE PETITION OF THE STATE
FOR CONDEMNATION OF A RIGHT OF WAY OVER INDIAN ALLOTTED LANDS.  THE
SUIT WAS BROUGHT ORIGINALLY IN THE STATE COURT BUT WAS REMOVED TO THE
FEDERAL COURT. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

MINNESOTA BROUGHT IN A COURT OF THE STATE THIS PROCEEDING TO TAKE BY
CONDEMNATION PURSUANT TO ITS LAWS A RIGHT OF WAY FOR A HIGHWAY OVER
NINE ALLOTTED PARCELS OF LAND WHICH FORM PARTS OF THE GRAND PORTAGE
INDIAN RESERVATION, GRANTED FOR THE BAND OF CHIPPEWA INDIANS OF LAKE
SUPERIOR BY TREATY OF SEPTEMBER 30, 1854(10 STAT. 1109) AND THE ACT OF
CONGRESS, JANUARY 14, 1889, C. 24, 25 STAT. 642.  THE PARCELS HAD BEEN
ALLOTTED IN SEVERALTY TO INDIVIDUAL INDIANS BY TRUST PATENTS.  THE
HIGHWAY WAS LOCATED PURSUANT TO REQUIREMENTS OF THE CONSTITUTION OF THE
STATE.  IT WAS NOT SHOWN THAT AUTHORITY HAD BEEN OBTAINED FROM THE
SECRETARY OF THE INTERIOR FOR THE CONSTRUCTION OF THE HIGHWAY OVER THE
INDIAN LANDS.  THE PETITION NAMED AS PERSONS INTERESTED THE OWNERS
UNDER THE INDIAN ALLOTMENTS, THE SUPERINTENDENT OF THE CONSOLIDATED
CHIPPEWA AGENCY, AND THE UNITED STATES, AS HOLDER OF THE FEE IN TRUST. 

THE UNITED STATES WAS NAMED AS A PARTY DEFENDANT.  THE UNITED STATES
ATTORNEY, APPEARING SPECIALLY FOR THE UNITED STATES AND GENERALLY FOR
THE OTHER RESPONDENTS, FILED A PETITION FOR THE REMOVAL OF THE CAUSE TO
THE FEDERAL COURT.  HE AND COUNSEL FOR THE STATE STIPULATED THAT THE
CAUSE "MAY BE (SO) REMOVED."  THE STATE COURT ORDERED REMOVAL.  IN THE
FEDERAL COURT, THE UNITED STATES, APPEARING SPECIALLY, MOVED TO DISMISS
THE ACTION ON THE GROUND THAT IT HAD NOT CONSENTED TO BE SUED AND THAT
THE STATE COURT HAD NO JURISDICTION OF THE ACTION OR OVER THE UNITED
STATES.  THE MOTION TO DISMISS WAS DENIED ON THE GROUND THAT THE UNITED
STATES IS NOT A NECESSARY PARTY, SINCE "CONSENT  ...  TO BRING THESE
PROCEEDINGS AGAINST THE INDIAN ALLOTTEES HAS BEEN EXPRESSLY GRANTED AND
GIVEN BY THE UNITED STATES TO THE STATE OF MINNESOTA, PURSUANT TO 25
U.S.C. ANNOTATED, SECTION 357" (ACT OF MARCH 3, 1901, C. 832, SEC. 3,
31 STAT. 1058, 1083-84), THE SECOND PARAGRAPH OF WHICH PROVIDES: 

"THAT LANDS ALLOTTED IN SEVERALTY TO INDIANS MAY BE CONDEMNED FOR ANY
PUBLIC PURPOSE UNDER THE LAWS OF THE STATE OR TERRITORY WHERE LOCATED
IN THE SAME MANNER AS LAND OWNED IN FEE MAY BE CONDEMNED, AND THE MONEY
AWARDED AS DAMAGES SHALL BE PAID TO THE ALLOTTEE." 

THE PETITION FOR CONDEMNATION WAS GRANTED. 

UPON APPEAL BY THE UNITED STATES, THE CIRCUIT COURT OF APPEALS HELD
THAT THE STATE WAS WITHOUT POWER TO CONDEMN THE INDIAN LANDS UNLESS
SPECIFICALLY AUTHORIZED SO TO DO BY THE SECRETARY OF THE INTERIOR, AS
PROVIDED IN SEC. 4 OF THE ACT OF 1901, WHICH PROVIDES: 

"THAT THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO GRANT
PERMISSION, UPON COMPLIANCE WITH SUCH REQUIREMENTS AS HE MAY DEEM
NECESSARY, TO THE PROPER STATE OR LOCAL AUTHORITIES FOR THE OPENING AND
ESTABLISHMENT OF PUBLIC HIGHWAYS, IN ACCORDANCE WITH THE LAWS OF THE
STATE OR TERRITORY IN WHICH THE LANDS ARE SITUATED  ...  THROUGH ANY
LANDS WHICH HAVE BEEN ALLOTTED IN SEVERALTY TO ANY INDIVIDUAL INDIANS
...  BUT WHICH HAVE NOT BEEN CONVEYED TO THE ALLOTTEES WITH FULL POWER
OF ALIENATION." 

IT HELD, FURTHER, THAT AS SUCH AUTHORIZATION HAD NOT BEEN SHOWN, THE
UNITED STATES HAD NOT CONSENTED TO THE MAINTENANCE OF THE CONDEMNATION
SUIT AGAINST IT; THAT THE COURT WAS WITHOUT JURISDICTION TO PROCEED;
AND THAT THE FACT THAT REMOVAL FROM THE STATE COURT TO THE FEDERAL
COURT HAD BEEN OBTAINED BY THE UNITED STATES ATTORNEY BY STIPULATION
HAD NOT EFFECTED A GENERAL APPEARANCE.  THE CIRCUIT COURT OF APPEALS,
THEREFORE, REVERSED THE JUDGMENT OF THE DISTRICT COURT WITH DIRECTIONS
TO DISMISS.  95 F.2D 468.  CERTIORARI WAS GRANTED BECAUSE OF ALLEGED
CONFLICT WITH THE ESTABLISHED ADMINISTRATIVE PRACTICE UNDER THE
APPLICABLE STATUTES AND THE IMPORTANCE OF THE QUESTION PRESENTED. 

THE STATE CONTENDS THAT IT HAD POWER, AND ITS COURTS JURISDICTION, TO
CONDEMN THE ALLOTTED LANDS WITHOUT MAKING THE UNITED STATES A PARTY TO
THE PROCEEDINGS:  (1) BECAUSE AUTHORIZED SO TO DO BY THE SECOND
PARAGRAPH OF SEC. 3 OF THE ACT OF MARCH 3, 1901, QUOTED ABOVE; (2)
BECAUSE AUTHORIZED SO TO DO BY THE TREATY OF SEPTEMBER 30, 1854, 10
STAT. 1109, 1110, APPROVED BY CONGRESS JANUARY 14, 1889, WHICH PROVIDED
IN ARTICLE 3 - 

"ALL NECESSARY ROADS, HIGHWAYS, AND RAILROADS, THE LINES OF WHICH MAY
RUN THROUGH ANY OF THE RESERVED TRACTS, SHALL HAVE THE RIGHT OF WAY
THROUGH THE SAME, COMPENSATION BEING MADE THEREFOR AS IN OTHER CASES." 

(3)  BECAUSE THE STATE, IN ITS SOVEREIGN CAPACITY AND IN THE EXERCISE
OF ITS GOVERNMENTAL FUNCTIONS IN THE LOCATION AND CONSTRUCTION OF A
CONSTITUTIONAL STATE TRUCK HIGHWAY REQUIRED TO BE SO LOCATED AND
CONSTRUCTED BY ITS CONSTITUTION AND LAWS, MAY, WITHOUT EXPRESS
CONGRESSIONAL AUTHORITY THEREFOR, EXERCISE ITS INHERENT POWER OF
EMINENT DOMAIN FOR SUCH PURPOSE OVER LANDS SO ALLOTTED IN SEVERALTY TO
INDIVIDUAL INDIANS. 

THE MINNESOTA CHIPPEWA TRIBE AND THE GRAND PORTAGE-GRAND MARAIS BAND
THEREOF FILED BY THE TRIBAL ATTORNEY A BRIEF PRAYING THAT THE JUDGMENT
OF THE CIRCUIT COURT OF APPEALS BE REVERSED AND THAT OF THE DISTRICT
COURT AFFIRMED. 

FIRST.  THE UNITED STATES IS AN INDISPENSABLE PARTY DEFENDANT TO THE
CONDEMNATION PROCEEDINGS.  A PROCEEDING AGAINST PROPERTY IN WHICH THE
UNITED STATES HAS AN INTEREST IS A SUIT AGAINST THE UNITED STATES.  THE
SIREN, 7 WALL.  152, 154; CARR V. UNITED STATES, 98 U.S. 433, 437;
STANLEY V. SCHWALBY, 162 U.S. 255.  COMPARE UTAH POWER & LIGHT CO. V.
UNITED STATES, 243 U.S. 389.  IT IS CONFESSEDLY THE OWNER OF THE FEE OF
THE INDIAN ALLOTTED LANDS AND HOLDS THE SAME IN TRUST FOR THE
ALLOTTEES.  AS THE UNITED STATES OWNS THE FEE OF THESE PARCELS, THE
RIGHT OF WAY CANNOT BE CONDEMNED WITHOUT MAKING IT A PARTY.  FN1  THE
EXEMPTION OF THE UNITED STATES FROM BEING SUED WITHOUT ITS CONSENT
EXTENDS TO A SUIT BY A STATE.  COMPARE KANSAS V. UNITED STATES, 204
U.S. 331, 342; ARIZONA V. CALIFORNIA, 298 U.S. 558, 568, 571, 572. 
COMPARE MINNESOTA V. HITCHCOCK, 185 U.S. 373, 382-387; OREGON V.
HITCHCOCK, 202 U.S. 60.  HENCE MINNESOTA CANNOT MAINTAIN THIS SUIT
AGAINST THE UNITED STATES UNLESS AUTHORIZED BY SOME ACT OF CONGRESS. 

MINNESOTA CONTENDS THAT THE UNITED STATES IS NOT AN INDISPENSABLE
PARTY.  IT ARGUES THAT SINCE THE SECOND PARAGRAPH OF SEC. 3 OF THE ACT
OF MARCH 3, 1901, PROVIDES THAT "THE MONEY AWARDED AS DAMAGES SHALL BE
PAID TO THE ALLOTTEE," THE UNITED STATES HAS NO INTEREST IN THE LAND OR
ITS PROCEEDS AFTER THE CONDEMNATION IS BEGUN.  FN2  UNDER SEC. 5 OF THE
GENERAL ALLOTMENT ACT, ACT OF FEBRUARY 8, 1887, C. 119, 24 STAT. 388,
389, U.S.C. TITLE 25, SEC. 348, THE INDIANS' INTEREST IN THESE ALLOTTED
LANDS WAS SUBJECT TO RESTRAINTS ON ALIENATION; FN3  AND BY SEC. 2 OF
THE INDIAN REORGANIZATION ACT, ACT OF JUNE 18, 1934, C. 576, 48 STAT.
984, U.S.C. TITLE 25, SEC. 462, RESTRAINTS ON ALIENATION WERE
EXTENDED.  THE CLAUSE QUOTED MAY NOT BE INTERPRETED AS FREEING THE
ALLOTTEE'S LAND FROM THE RESTRAINT IMPOSED BY OTHER ACTS OF CONGRESS. 
AS THE PARCELS HERE IN QUESTION WERE RESTRICTED LANDS, THE INTEREST OF
THE UNITED STATES CONTINUES THROUGHOUT THE CONDEMNATION PROCEEDINGS. 
IN ITS CAPACITY AS TRUSTEE FOR THE INDIANS IT IS NECESSARILY INTERESTED
IN THE OUTCOME OF THE SUIT - IN THE AMOUNT TO BE PAID.  THAT IT IS
INTERESTED, ALSO, IN WHAT SHALL BE DONE WITH THE PROCEEDS IS
ILLUSTRATED BY THE ACT OF JUNE 30, 1932, C. 333, 47 STAT. 474, U.S.C.
TITLE 25, SEC. 409A, UNDER WHICH THE SECRETARY OF THE INTERIOR MAY
DETERMINE THAT THE PROCEEDS OF THE CONDEMNATION OF RESTRICTED INDIAN
LANDS SHALL BE REINVESTED IN OTHER LANDS SUBJECT TO THE SAME
RESTRICTIONS.  FN4 

SECOND.  MINNESOTA CONTENDS THAT CONGRESS HAS AUTHORIZED SUIT AGAINST
THE UNITED STATES.  IT IS TRUE THAT AUTHORIZATION TO CONDEMN CONFERS BY
IMPLICATION PERMISSION TO SUE THE UNITED STATES.  BUT CONGRESS HAS
PROVIDED GENERALLY FOR SUITS AGAINST THE UNITED STATES IN THE FEDERAL
COURTS.  AND IT RESTS WITH CONGRESS TO DETERMINE NOT ONLY WHETHER THE
UNITED STATES MAY BE SUED, BUT IN WHAT COURTS THE SUIT MAY BE BROUGHT. 
THIS SUIT WAS BEGUN IN A STATE COURT.  THE FACT THAT THE REMOVAL WAS
EFFECTED ON PETITION OF THE UNITED STATES AND THE STIPULATION OF ITS
ATTORNEY IN RELATION THERETO ARE FACTS WITHOUT LEGAL SIGNIFICANCE. 
WHERE JURISDICTION HAS NOT BEEN CONFERRED BY CONGRESS, NO OFFICER OF
THE UNITED STATES HAS POWER TO GIVE TO ANY COURT JURISDICTION OF A SUIT
AGAINST THE UNITED STATES.  COMPARE CASE V. TERRELL, 11 WALL.  199,
202; CARR V. UNITED STATES, 98 U.S. 433, 435-39; FINN V. UNITED STATES,
123 U.S. 227, 232-33; STANLEY V. SCHWALBY, 162 U.S. 255, 270; UNITED
STATES V. GARBUTT OIL CO., 302 U.S. 528, 533-35.  IF CONGRESS DID NOT
GRANT PERMISSION TO BRING THIS CONDEMNATION PROCEEDING IN A STATE
COURT, THE FEDERAL COURT WAS WITHOUT JURISDICTION UPON ITS REMOVAL. 
FOR JURISDICTION OF THE FEDERAL COURT ON REMOVAL IS, IN A LIMITED
SENSE, A DERIVATIVE JURISDICTION.  WHERE THE STATE COURT LACKS
JURISDICTION OF THE SUBJECT MATTER OR OF THE PARTIES, THE FEDERAL COURT
ACQUIRES NONE, ALTHOUGH IN A LIKE SUIT ORIGINALLY BROUGHT IN A FEDERAL
COURT IT WOULD HAVE HAD JURISDICTION.  LAMBERT RUN COAL CO. V.
BALTIMORE & OHIO R. CO., 258 U.S. 377, 383; GENERAL INVESTMENT CO. V.
LAKE SHORE & M.S. RY. CO., 260 U.S. 261, 288. 

THIRD.  MINNESOTA CONTENDS THAT CONGRESS AUTHORIZED SUIT IN A COURT
OF THE STATE BY PROVIDING IN THE SECOND PARAGRAPH OF SEC. 3 OF THE ACT
OF MARCH 3, 1901, QUOTED ABOVE, FOR "CONDEMNATION OF" LANDS ALLOTTED IN
SEVERALTY TO INDIANS "IN THE SAME MANNER AS LAND OWNED IN FEE."  BUT
THE PARAGRAPH CONTAINS NO PERMISSION TO SUE IN THE COURT OF A STATE. 
IT MERELY AUTHORIZES CONDEMNATION FOR "ANY PUBLIC PURPOSE UNDER THE
LAWS OF THE STATE OR TERRITORY WHERE LOCATED."  THERE ARE PERSUASIVE
REASONS WHY THAT STATUTE SHOULD NOT BE CONSTRUED AS AUTHORIZING SUIT IN
A STATE COURT.  IT RELATES TO INDIAN LANDS UNDER TRUST ALLOTMENTS - A
SUBJECT WITHIN THE EXCLUSIVE CONTROL OF THE FEDERAL GOVERNMENT.  THE
JUDICIAL DETERMINATION OF CONTROVERSIES CONCERNING SUCH LANDS HAS BEEN
COMMONLY COMMITTED EXCLUSIVELY TO FEDERAL COURTS.  FN5 

MINNESOTA ASSERTED IN SUPPORT OF ITS INTERPRETATION OF THE PARAGRAPH
THAT BY LONG ESTABLISHED ADMINISTRATIVE PRACTICE SUCH CONDEMNATION
PROCEEDINGS ARE BROUGHT IN THE STATE COURT AND WITHOUT MAKING THE
UNITED STATES A PARTY.  FN6  THE ASSERTION WAS DENIED BY THE
GOVERNMENT.  AS THE BRIEF OF NEITHER COUNSEL FURNISHED ADEQUATE DATA AS
TO THE ADMINISTRATIVE PRACTICE, THEY WERE REQUESTED AT THE ORAL
ARGUMENT TO FURNISH THE DATA THEREAFTER.  FROM THE REPORT THEN
SUBMITTED BY THE SOLICITOR GENERAL IT APPEARS THAT THROUGHOUT A LONG
PERIOD THE SECRETARY OF THE INTERIOR HAS INSISTED IN MINNESOTA AND IN
OTHER STATES, THAT CONDEMNATION SUITS MUST BE BROUGHT IN A FEDERAL
COURT AND THAT THE UNITED STATES MUST BE MADE A PARTY DEFENDANT.  FN7 

AS THE LOWER COURT HAD NO JURISDICTION OF THIS SUIT, WE HAVE NO
OCCASION TO CONSIDER WHETHER, AS A MATTER OF SUBSTANTIVE LAW, THE LACK
OF ASSENT BY THE SECRETARY OF THE INTERIOR PRECLUDED MAINTENANCE OF THE
CONDEMNATION PROCEEDING.  AFFIRMED. 

FN1  THE FEE OF THE UNITED STATES IS NOT A DRY LEGAL TITLE DIVORCED
FROM SUBSTANTIAL POWERS AND RESPONSIBILITIES WITH RELATION TO THE
LAND.  UNITED STATES V. RICKERT, 188 U.S. 432; COMPARE TIGER V. WESTERN
INVESTMENT CO., 221 U.S. 286; BRADER V. JAMES, 246 U.S. 88.  IN THE
CASE OF PATENTS IN FEE WITH RESTRAINTS ON ALIENATION IT IS ESTABLISHED
THAT AN ALIENATION OF THE INDIAN'S INTEREST IN THE LANDS BY JUDICIAL
DECISION IN A SUIT TO WHICH THE UNITED STATES IS NOT A PARTY HAS NO
BINDING EFFECT BUT THAT THE UNITED STATES MAY SUE TO CANCEL THE
JUDGMENT AND SET ASIDE THE CONVEYANCE MADE PURSUANT THERETO.  BOWLING &
MIAMI INVESTMENT CO. V. UNITED STATES, 233 U.S. 528; PRIVETT V. UNITED
STATES, 256 U.S. 201; SUNDERLAND V. UNITED STATES, 266 U.S. 226.  IN
THE STRONGER CASE OF A TRUST ALLOTMENT, IT WOULD SEEM CLEAR THAT NO
EFFECTIVE RELIEF CAN BE GIVEN IN A PROCEEDING TO WHICH THE UNITED
STATES IS NOT A PARTY AND THAT THE UNITED STATES IS THEREFORE AN
INDISPENSABLE PARTY TO ANY SUIT TO ESTABLISH OR ACQUIRE AN INTEREST IN
THE LANDS.  COMPARE MCKAY V. KALYTON, 204 U.S. 458. 

FN2  THE EXTENT OF THE RESTRAINTS ON ALIENATION CONTAINED IN SEC. 5
OF THE GENERAL ALLOTMENT ACT WAS CLARIFIED AND MODIFIED TO SOME EXTENT
BY SUBSEQUENT LEGISLATION.  E.G., ACT OF MAY 27, 1902, C. 888, SEC. 7,
32 STAT. 245, 275; ACT OF MAY 8, 1906, C. 2348, 34 STAT. 182; ACT OF
MARCH 1, 1907, C. 2285, 34 STAT. 1015, 1018; ACT OF MAY 29, 1908, C.
216, 35 STAT. 444; ACT OF JUNE 25, 1910, C. 431, SECS. 1-5, 36 STAT.
855-56; ACT OF MAY 18, 1916, C. 125, 39 STAT. 123, 127; U.S.C. TITLE
25, SECS. 349, 372, 373, 378, 379, 394, 403, 404, 405, 408.  UNDER SEC.
4 OF THE INDIAN REORGANIZATION ACT, APPLICABLE TO ALL INDIAN
RESERVATIONS UNLESS A MAJORITY OF THE ADULT INDIANS VOTE AGAINST ITS
APPLICATION, THE TRANSFERABILITY OF RESTRICTED INDIAN LANDS IS GREATLY
LIMITED.  ACT OF JUNE 18, 1934, C. 576, 48 STAT. 984, U.S.C. TITLE 25,
SEC. 464.    FN3  COMPARE THE ACT OF MARCH 1, 1907, C. 2285, 34 STAT.
1018, U.S.C. TITLE 25, SEC. 405; ACT OF JUNE 25, 1910, C. 431, SECS. 4,
8, 36 STAT. 856-857; U.S.C. TITLE 25, SECS. 403, 406. 

FN4  "WHENEVER ANY NONTAXABLE LAND OF A RESTRICTED INDIAN OF THE FIVE
CIVILIZED TRIBES OR OF ANY OTHER INDIAN TRIBE IS SOLD TO ANY STATE,
COUNTY, OR MUNICIPALITY FOR PUBLIC-IMPROVEMENT PURPOSES, OR IS
ACQUIRED, UNDER EXISTING LAW, BY ANY STATE, COUNTY, OR MUNICIPALITY BY
CONDEMNATION OR OTHER PROCEEDINGS FOR SUCH PUBLIC PURPOSES, OR IS SOLD
UNDER EXISTING LAW TO ANY OTHER PERSON OR CORPORATION FOR OTHER
PURPOSES, THE MONEY RECEIVED FOR SAID LAND MAY, IN THE DISCRETION AND
WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR, BE REINVESTED IN
OTHER LANDS SELECTED BY SAID INDIAN, AND SUCH LAND SO SELECTED AND
PURCHASED SHALL BE RESTRICTED AS TO ALIENATION, LEASE OR INCUMBRANCE,
AND NONTAXABLE IN THE SAME QUANTITY AND UPON THE SAME TERMS AND
CONDITIONS AS THE NONTAXABLE LANDS FROM WHICH THE REINVESTED FUNDS WERE
DERIVED, AND SUCH RESTRICTIONS SHALL APPEAR IN THE CONVEYANCE."  SEE
ALSO NOTE 7, INFRA. 

FN5  COMPARE MCKAY V. KALYTON, 204 U.S. 458; 28 STAT. 305; 31 STAT.
760; U.S.C. TITLE 25, SEC. 345.  THE UNITED STATES ARGUES THAT A
STATUTE GRANTING PERMISSION TO SUE THE UNITED STATES MUST BE CONSTRUED
TO APPLY ONLY TO THE FEDERAL COURTS UNLESS THERE IS AN EXPLICIT
REFERENCE TO THE STATE TRIBUNALS, CITING STANLEY V. SCHWALBY, 162 U.S.
255, 270; UNITED STATES V. INABA, 291 F. 416, 418; UNITED STATES V.
DEASY, 24 F.2D 108, 110.  THIS IS NOT UNIVERSALLY TRUE EVEN AS TO SUITS
AGAINST THE UNITED STATES ITSELF.  UNITED STATES V. JONES, 109 U.S.
513.  AND IN MANY INSTANCES THE STATE COURTS HAVE BEEN HELD TO HAVE
JURISDICTION OF SUITS AGAINST THE INSTRUMENTALITIES AND OFFICERS OF THE
UNITED STATES WHICH DIRECTLY AFFECT ITS PROPERTY INTERESTS WITHOUT SUCH
SPECIFIC STATUTORY AUTHORIZATION.  MISSOURI PACIFIC R. CO. V. AULT, 256
U.S. 554; SLOAN SHIPYARDS V. UNITED STATES SHIPPING BOARD, 258 U.S.
549, 568-69; OLSON V. UNITED STATES SPRUCE PRODUCTION CORP., 267 U.S.
462; FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229, 235-37.  COMPARE DAVIS
V. L.N. DANTZLER LUMBER CO., 261 U.S. 280. 

FN6  IN 35 LAND DECISIONS 648 THE ACTING SECRETARY OF THE INTERIOR
HANDED DOWN ON JUNE 29, 1907, AN OPINION WHICH RECOGNIZED, WITHOUT ANY
DISCUSSION, THE VALIDITY OF A CONDEMNATION PROCEEDING BROUGHT UNDER THE
SECOND PARAGRAPH OF THE ACT OF MARCH 3, 1901, IN A STATE COURT, IT NOT
APPEARING THAT THE UNITED STATES WAS JOINED AS A PARTY. 

FN7  SEE ALSO REGULATION 69 1/2 OF THE REGULATIONS OF THE DEPARTMENT
OF THE INTERIOR, "CONCERNING RIGHTS OF WAY OVER INDIAN LANDS," ADOPTED
IN THE GENERAL REVISION OF APRIL 7, 1938, WHICH PROVIDES:  "AS THE
HOLDER OF THE LEGAL TITLE TO ALLOTTED INDIAN LANDS HELD IN TRUST, THE
UNITED STATES MUST BE MADE A PARTY TO ALL SUCH CONDEMNATION SUITS AND
THE ACTION MUST BE BROUGHT IN THE APPROPRIATE FEDERAL DISTRICT COURT,
THE PROCEDURE, HOWEVER, TO FOLLOW THE PROVISIONS OF THE STATE LAW ON
THE SUBJECT, SO FAR AS APPLICABLE." 
..END :






















BREWING CO. V. LIQUOR COMM'N, 305 U.S. 391 


NO. 130.  ARGUED DECEMBER 7, 1938.  - DECIDED JANUARY 3, 1939.  - 21
F.SUPP.  969, AFFIRMED. 


1.  SINCE THE TWENTY-FIRST AMENDMENT, THE RIGHT OF A STATE TO PROHIBIT
OR REGULATE THE IMPORTATION OF INTOXICATING LIQUOR IS NOT LIMITED BY
THE COMMERCE CLAUSE.  P. 394. 

2.  REGULATION DISCRIMINATORY BETWEEN DOMESTIC AND IMPORTED
INTOXICATING LIQUORS, OR BETWEEN IMPORTED INTOXICATING LIQUORS, IS NOT
PROHIBITED BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. 
P. 394. 

3.  A STATUTE OF MICHIGAN PROHIBITS DEALERS IN BEER IN THAT STATE
FROM SELLING ANY BEER MANUFACTURED IN A STATE WHICH BY ITS LAWS
DISCRIMINATES, IN MANNER DESCRIBED, AGAINST BEER MANUFACTURED IN
MICHIGAN.  PURSUANT TO THE STATUTE, THE STATE LIQUOR CONTROL COMMISSION
DESIGNATED SPECIFICALLY OTHER STATES, TEN IN NUMBER, INCLUDING INDIANA,
WHICH DISCRIMINATED AGAINST MICHIGAN BEER; WHEREUPON MICHIGAN LICENSEES
WERE PROHIBITED FROM PURCHASING, RECEIVING, POSSESSING, OR SELLING ANY
BEER MANUFACTURED IN THOSE STATES.  HELD, AS APPLIED TO AN INDIANA
MANUFACTURER OF BEER, WHO SOUGHT TO RESTRAIN THE ENFORCEMENT OF THE
MICHIGAN STATUTE, IT WAS NOT VOID AS VIOLATING THE COMMERCE, DUE
PROCESS, OR EQUAL PROTECTION CLAUSES OF THE FEDERAL CONSTITUTION.  PP.
392, 394. 

IT IS UNNECESSARY TO CONSIDER WHETHER THE STATUTE IS RETALIATORY OR
PROTECTIVE IN CHARACTER; IT IS VALID IN EITHER ASPECT. 

4.  THE POWER OF THE STATE TO FORBID THE SALE OF INTOXICATING LIQUOR
IS UNDOUBTED.  P. 394. 

INDIANAPOLIS BREWING CO. V. LIQUOR CONTROL COMMISSION ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF MICHIGAN. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, DENYING A
TEMPORARY INJUNCTION AND DISMISSING THE BILL, IN A SUIT TO ENJOIN THE
ENFORCEMENT OF A STATE LIQUOR LAW, ALLEGED TO BE "RETALIATORY" AND
UNCONSTITUTIONAL. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

INDIANAPOLIS BREWING COMPANY, INC., AN INDIANA CORPORATION,
MANUFACTURES BEER IN THAT STATE.  UNDER APPROPRIATE LICENSES IT HAS FOR
SOME YEARS SOLD AND SHIPPED TO DEALERS IN MICHIGAN ITS PRODUCT IN
INTERSTATE COMMERCE.  IN JULY, 1937, THE MICHIGAN LIQUOR CONTROL ACT
WAS AMENDED SO AS TO PROHIBIT MICHIGAN DEALERS IN BEER FROM SELLING ANY
BEER MANUFACTURED IN A STATE WHICH BY ITS LAWS DISCRIMINATES AGAINST
MICHIGAN BEER.  BY SEC. 40 OF THE AMENDED ACT, THE MICHIGAN COMMISSION
IS DIRECTED TO DECLARE WHAT STATES DISCRIMINATE AS THAT TERM IS DEFINED
BY THE ACT.  FN1  IT NAMED TEN STATES.  FN2  AMONG THESE IS INDIANA,
WHICH BY ITS LIQUOR CONTROL ACT OF 1935, AS AMENDED IN 1937, PROHIBITS
LICENSED INDIANA WHOLESALERS FROM IMPORTING ANY BEER WHICH IS NOT THEIR
ABSOLUTE PROPERTY; AND REQUIRES THAT IN ORDER TO SECURE THE PRIVILEGE
OF IMPORTING BEER FROM OTHER STATES EACH MUST OBTAIN A "PORT OF ENTRY"
PERMIT, OF WHICH NO FEWER THAN TEN AND NO MORE THAN ONE HUNDRED ARE TO
BE GRANTED, PAY A LICENSE FEE OF $1500 AND GIVE A BOND OF $10,000, IN
ADDITION TO THE LICENSE FEE AND BOND REQUIRED OF THOSE WHO SELL ONLY
INDIANA BEER.  FN3 

THE INDIANAPOLIS COMPANY, SUING ON BEHALF OF ITSELF AND OTHERS
SIMILARLY SITUATED, BROUGHT, IN THE FEDERAL COURT FOR EASTERN MICHIGAN,
THIS SUIT TO ENJOIN THE ENFORCEMENT OF THAT PROVISION OF THE MICHIGAN
LAW ON THE GROUND THAT IT VIOLATES THE FEDERAL CONSTITUTION.  THE
MEMBERS OF THE MICHIGAN LIQUOR CONTROL COMMISSION AND OTHER OFFICERS OF
THE STATE WERE MADE DEFENDANTS.  AS A TEMPORARY, AS WELL AS A
PERMANENT, INJUNCTION WAS SOUGHT, A THREE-JUDGE COURT WAS CONVENED TO
HEAR THE APPLICATION FOR A TEMPORARY INJUNCTION.  DEFENDANTS MOVED TO
DISMISS THE BILL.  IT WAS CONCEDED THAT IF THE LAW WAS UNCONSTITUTIONAL
THE PLAINTIFF WAS ENTITLED TO EQUITABLE RELIEF.  NO QUESTION EXCEPT
THAT OF THE CONSTITUTIONALITY OF THE LAW WAS PRESENTED.  THE COURT HELD
THE LAW VALID; DENIED THE TEMPORARY INJUNCTION; AND DISMISSED THE
BILL.  21 F.SUPP.  969. 

THE PLAINTIFF CONTENDS THAT ALTHOUGH THE TWENTY-FIRST AMENDMENT
DECLARES: 

"THE TRANSPORTATION OR IMPORTATION INTO ANY STATE, TERRITORY OR
POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE THEREIN OF
INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY
PROHIBITED" 

THE MICHIGAN LAW SHOULD BE HELD VOID AS VIOLATING THE COMMERCE CLAUSE
AND THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH
AMENDMENT.  IT CHARACTERIZES THE LAW AS "RETALIATORY"; ARGUES, AMONG
OTHER THINGS, THAT THE AMENDMENT MAY NOT BE INTERPRETED AS PERMITTING
RETALIATION; AND INSISTS THAT SUCH INTERPRETATION WOULD DEFEAT ITS
PURPOSE, AS THEREBY MICHIGAN WOULD BE ALLOWED TO PUNISH INDIANA FOR
DOING WHAT, UNDER THE RULE APPLIED IN STATE BOARD OF EQUALIZATION V.
YOUNG'S MARKET CO., 299 U.S. 59, 63, IS PERMITTED.  WHETHER THE
MICHIGAN LAW SHOULD NOT MORE PROPERLY BE DESCRIBED AS A PROTECTIVE
MEASURE, WE HAVE NO OCCASION TO CONSIDER.  FOR WHATEVER ITS CHARACTER,
THE LAW IS VALID.  SINCE THE TWENTY-FIRST AMENDMENT, AS HELD IN THE
YOUNG CASE, THE RIGHT OF A STATE TO PROHIBIT OR REGULATE THE
IMPORTATION OF INTOXICATING LIQUOR IS NOT LIMITED BY THE COMMERCE
CLAUSE; AND, AS HELD BY THAT CASE AND MAHONEY V. JOSEPH TRINER CORP.,
304 U.S. 401, DISCRIMINATION BETWEEN DOMESTIC AND IMPORTED INTOXICATING
LIQUORS, OR BETWEEN IMPORTED INTOXICATING LIQUORS, IS NOT PROHIBITED BY
THE EQUAL PROTECTION CLAUSE.  THE FURTHER CLAIM THAT THE LAW VIOLATES
THE DUE PROCESS CLAUSE IS ALSO UNFOUNDED.  THE SUBSTANTIVE POWER OF THE
STATE TO PREVENT THE SALE OF INTOXICATING LIQUOR IS UNDOUBTED.  MUGLER
V. KANSAS, 123 U.S. 623.  AFFIRMED. 

FN1  AMENDED SEC. 40 OF MICHIGAN ACT NO. 281.  PUBLIC ACTS OF 1937,
P. 509, PROVIDES:  " ... THE COMMISSION SHALL FORTHWITH ADOPT A
REGULATION DESIGNATING THE STATES, THE LAWS, OR THE RULES OR
REGULATIONS OF WHICH ARE FOUND TO REQUIRE A LICENSED WHOLESALER OF BEER
THEREIN TO PAY AN ADDITIONAL FEE FOR THE RIGHT TO PURCHASE, IMPORT, OR
SELL BEER MANUFACTURED IN THIS STATE; OR WHICH DENY THE ISSUANCE OF A
LICENSE AUTHORIZING THE IMPORTATION OF BEER TO ANY DULY LICENSED
WHOLESALER OF BEER THEREIN WHO MAY MAKE APPLICATION FOR SUCH LICENSE;
...  THE REGULATION ADOPTED SHALL PROHIBIT ALL LICENSEES FROM
PURCHASING, RECEIVING, POSSESSING, OR SELLING ANY BEER MANUFACTURED IN
ANY STATE THEREIN DESIGNATED, SAID REGULATION TO BECOME EFFECTIVE
NINETY DAYS AFTER ITS ADOPTION.  ANY LICENSEE OR PERSON ADVERSELY
AFFECTED SHALL BE ENTITLED TO REVIEW BY CERTIORARI TO THE PROPER COURT
THE QUESTION AS TO WHETHER THE COMMISSION HAS ACTED ILLEGALLY OR IN
EXCESS OF AUTHORITY IN MAKING ITS FINDING WITH RESPECT TO ANY STATE." 

FN2  THE REGULATION OF THE LIQUOR CONTROL COMMISSION ISSUED DECEMBER
14, 1937, IS AS FOLLOWS: "PURSUANT TO ACT NO. 8, PUBLIC ACTS, EXTRA
SESSION OF THE YEAR 1933 OF THE STATE OF MICHIGAN, AS AMENDED BY ACT
NO. 241 OF THE PUBLIC ACTS FOR THE YEAR 1935, AND ACT NO. 281 OF THE
PUBLIC ACTS FOR THE YEAR 1937, PARTICULARLY SECTION 40 THEREOF, THE
MICHIGAN LIQUOR CONTROL COMMISSION PROMULGATES THE FOLLOWING RULE AND
REGULATION DESIGNATING AS DISCRIMINATORY ACCORDING TO SECTION 40 OF
SAID ACT THE FOLLOWING STATES:  MAINE, MARYLAND, NEVADA, INDIANA, NEW
HAMPSHIRE, NORTH CAROLINA, PENNSYLVANIA, TENNESSEE, VERMONT,
WASHINGTON.  THESE DESIGNATIONS ARE MADE AFTER A CAREFUL EXAMINATION OF
THE LAWS AND RULES AND REGULATIONS OF THE AFOREMENTIONED STATES." 

FN3  INDIANA ALCOHOLIC BEVERAGE ACT OF 1935, C. 226, AMENDED BY ACT
OF 1937, C. 197, SECS. 9, 40(A), 41, BURNS REVISED STATUTES 1933,
SUPP., SECS. 12-508, 12-801, 12-901. 
..END :
























FINCH & CO. V. MCKITTRICK, 305 U.S. 395 


NO. 252.  ARGUED DECEMBER 7, 1938.  - DECIDED JANUARY 3, 1939.  - 23
F.SUPP.  244, AFFIRMED. 


A STATUTE OF MISSOURI MAKES IT UNLAWFUL TO IMPORT INTO THAT STATE, OR
TO PURCHASE, RECEIVE, SELL, OR POSSESS THEREIN, ANY ALCOHOLIC LIQUOR
MANUFACTURED IN ANY STATE THE LAWS OF WHICH DISCRIMINATE AGAINST
IMPORTATION OF ALCOHOLIC LIQUOR MANUFACTURED IN MISSOURI.  HELD NOT
VIOLATIVE OF THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION. 
FOLLOWING INDIANAPOLIS BREWING CO. V. LIQUOR CONTROL COMM'N, ANTE, P.
391.  P. 397. 

JOSEPH S. FINCH & CO. ET AL. V. MCKITTRICK, ATTORNEY GENERAL, ET AL.* 

*TOGETHER WITH NO. 253, BEN BURK, INC. V. MCKITTRICK ET AL.; NO. 254,
JOSEPH E. SEAGRAM & SONS, INC. ET AL. V. MCKITTRICK ET AL.; NO. 255,
HINRICHS DISTILLED PRODUCTS V. MCKITTRICK ET AL.; AND NO. 256, ARROW
DISTILLERIES, INC. V. MCKITTRICK ET AL., ALL ON APPEALS FROM THE
DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF
MISSOURI. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MISSOURI. 

APPEALS FROM DECREES OF A DISTRICT COURT OF THREE JUDGES DENYING
TEMPORARY AND PERMANENT INJUNCTIONS AND DISMISSING THE BILLS IN SEVERAL
SUITS, CONSOLIDATED FOR HEARING AND REVIEW, TO ENJOIN THE ENFORCEMENT
OF A STATE LIQUOR LAW. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE STATE OF MISSOURI APPROVED APRIL 8, 1937,  FN1  AN ACT, SOMETIMES
CALLED THE MISSOURI ANTI-DISCRIMINATION ACT, SOMETIMES THE MISSOURI
RETALIATION ACT.  IT PROVIDES IN SEC. 4:  "THE TRANSPORTATION OR
IMPORTATION INTO THIS STATE, OR THE PURCHASE, SALE, RECEIPT OR
POSSESSION HEREIN, BY ANY LICENSEE, OF ANY ALCOHOLIC LIQUOR
MANUFACTURED IN A 'STATE IN WHICH DISCRIMINATION EXISTS' IS HEREBY
PROHIBITED, AND IT SHALL BE UNLAWFUL FOR ANY LICENSEE TO TRANSPORT OR
IMPORT INTO THIS STATE, OR TO PURCHASE, RECEIVE, POSSESS OR SELL IN
THIS STATE, ANY ALCOHOLIC LIQUOR MANUFACTURED IN ANY 'STATE IN WHICH
DISCRIMINATION EXISTS' AS HEREIN DEFINED."  THE STATUTE DEFINES WHAT
EXACTIONS, PROHIBITIONS AND RESTRICTIONS IMPOSED BY LAWS OF THE SEVERAL
STATES SHALL BE DEEMED "DISCRIMINATIONS" IMPOSED UPON THE IMPORTATION
INTO THE SEVERAL STATES OF ALCOHOLIC LIQUOR MANUFACTURED IN MISSOURI;
REQUIRES THE ATTORNEY GENERAL TO DETERMINE WHETHER THERE EXISTS THEREIN
ANY SUCH DISCRIMINATION; AND, IF HE FIND ANY SUCH DISCRIMINATORY LAW,
TO SPECIFY THE SAME IN A CERTIFICATE TO BE FILED WITH THE SUPERVISOR OF
LIQUOR CONTROL.  THE SUPERVISOR IS DIRECTED TO PUBLISH NOTICE OF THE
CERTIFICATES AND TO ADVISE ALL LICENSEES THAT IT WILL BE UNLAWFUL TO
IMPORT INTO MISSOURI OR TO PURCHASE, RECEIVE, SELL OR POSSESS IN
MISSOURI ANY LIQUOR MANUFACTURED IN A DISCRIMINATING STATE.  PURSUANT
TO THESE PROVISIONS, THE ATTORNEY GENERAL FILED, IN OCTOBER, 1937,
CERTIFICATES WITH THE SUPERVISOR DECLARING THAT THE STATES OF INDIANA,
PENNSYLVANIA, MICHIGAN AND MASSACHUSETTS ARE "STATES IN WHICH
DISCRIMINATIONS EXISTED" AS DEFINED BY THE MISSOURI STATUTE. 

TO ENJOIN ENFORCEMENT OF THIS PROVISION OF THE MISSOURI STATUTE,
THESE FIVE SUITS WERE BROUGHT, IN THE FEDERAL COURT FOR THE WESTERN
DISTRICT OF THE STATE, AGAINST THE ATTORNEY GENERAL AND THE SUPERVISOR
OF LIQUOR CONTROL.  EACH BILL CHARGES THAT THE PROVISION VIOLATES THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION AND THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT.  FN2  IN FOUR OF THE CASES THE BILL
ALLEGES THAT THE PLAINTIFF IS A CITIZEN OF A STATE OTHER THAN MISSOURI;
THAT IT MANUFACTURES LIQUOR IN ONE OF THE STATES CERTIFIED AS
"DISCRIMINATING"; THAT IT HOLDS A NON-RESIDENT MISSOURI PERMIT UNDER
WHICH IT IMPORTS AND SELLS IN MISSOURI A PART OF ITS PRODUCTS; AND THAT
IT WOULD BE IRREPARABLY INJURED IF THE PROVISION OF THE MISSOURI
STATUTES WERE ENFORCED.  THE FIFTH CASE DIFFERS ONLY IN THAT THE BILL
ALLEGES THAT THE PLAINTIFF IS A CITIZEN OF MISSOURI ENGAGED THERE IN
THE RECTIFYING AND BOTTLING BUSINESS FOR WHICH IT IMPORTS LIQUOR
MANUFACTURED IN A STATE CERTIFIED AS "DISCRIMINATING."  AS BOTH A
TEMPORARY AND A PERMANENT INJUNCTION WAS SOUGHT IN EACH CASE, EACH WAS
ASSIGNED FOR HEARING BEFORE A THREE-JUDGE COURT.  IN EACH THE
DEFENDANTS MOVED TO DISMISS THE BILL.  LATER, THE CASES WERE
CONSOLIDATED FOR HEARING AND REVIEW; AND IT WAS AGREED THAT WHEN THE
COURT HEARD THE APPLICATION FOR THE TEMPORARY INJUNCTION IT SHOULD
FINALLY DETERMINE THE CAUSES.  THE DISTRICT COURT DENIED THE
APPLICATIONS FOR A TEMPORARY AND A PERMANENT INJUNCTION AND DISMISSED
THE BILL IN EACH CASE.  23 F.SUPP.  244.  BUT THE TEMPORARY RESTRAINING
ORDERS ISSUED UPON THE FILING OF THE BILLS WERE CONTINUED UNTIL THE
FINAL DETERMINATION OF THE APPEALS TO THIS COURT. 

THE CLAIM OF UNCONSTITUTIONALITY IS RESTED, IN THIS COURT,
SUBSTANTIALLY ON THE CONTENTION THAT THE STATUTE VIOLATES THE COMMERCE
CLAUSE.  FN3  IT IS URGED THAT THE MISSOURI LAW DOES NOT RELATE TO
PROTECTION OF THE HEALTH, SAFETY AND MORALITY, OR THE PROMOTION OF
THEIR SOCIAL WELFARE, BUT IS MERELY AN ECONOMIC WEAPON OF RETALIATION;
AND THAT, HENCE, THE TWENTY-FIRST AMENDMENT SHOULD NOT BE INTERPRETED
AS GRANTING POWER TO ENACT IT.  SINCE THAT AMENDMENT, THE RIGHT OF A
STATE TO PROHIBIT OR REGULATE THE IMPORTATION OF INTOXICATING LIQUOR IS
NOT LIMITED BY THE COMMERCE CLAUSE.  AS WAS SAID IN STATE BOARD OF
EQUALIZATION V. YOUNG'S MARKET CO., 299 U.S. 59, 62, "THE WORDS USED
ARE APT TO CONFER UPON THE STATE THE POWER TO FORBID ALL IMPORTATIONS
WHICH DO NOT COMPLY WITH THE CONDITIONS WHICH IT PRESCRIBES."  TO LIMIT
THE POWER OF THE STATES AS URGED "WOULD INVOLVE NOT A CONSTRUCTION OF
THE AMENDMENT, BUT A REWRITING OF IT."  SEE ALSO MAHONEY V. JOSEPH
TRINER CORP., 304 U.S. 401; INDIANAPOLIS BREWING CO. V. LIQUOR CONTROL
COMM'N, ANTE, P. 391.  AFFIRMED. 

FN1  LAWS OF MISSOURI 1937, PP. 536-543. 

FN2  THE BILL ALSO ALLEGED THAT THE PROVISION VIOLATED THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THE CONTRACT CLAUSE AND THE
PRIVILEGES AND IMMUNITIES CLAUSE. 

FN3  THE ARGUMENTS IN APPELLANT'S BRIEF ARE CONFINED TO THE COMMERCE
CLAUSE.  THE STATEMENT OF POINTS TO BE RELIED UPON INCLUDES ALL THE
CONTENTIONS OF THE BILL. 
..END :








U.S. V. CONTINENTAL BANK, 305 U.S. 398 


NO. 22.  ARGUED DECEMBER 5, 1938.  - DECIDED JANUARY 3, 1939.  - 94 F.2D
81, AFFIRMED. 


1.  UNDER THE REVENUE ACT OF 1926, SUIT UPON A DEFICIENCY ASSESSMENT
MUST BE BEGUN WITHIN SIX YEARS AFTER THE ASSESSMENT.  SEC. 278(D).  P.
403. 

2.  UNDER THE REVENUE ACT OF 1926, THE TIME FOR BRINGING SUIT, IN THE
ABSENCE OF ASSESSMENT, TO ENFORCE LIABILITY OF A TRANSFEREE OF THE
TAXPAYER'S PROPERTY IS LIMITED TO SIX YEARS, MADE UP OF FIVE YEARS
AFTER RETURN, ALLOWED FOR ASSESSMENT AGAINST TAXPAYER, SEC. 277(A), AND
ONE YEAR THEREAFTER FOR ASSESSMENT AGAINST TRANSFEREE.  SEC.
280(B)(1).  ID. 

3.  A SUIT AGAINST TRANSFEREES OF A TRANSFEREE OF PROPERTY OF A
DELINQUENT TAXPAYER, WHICH IS OTHERWISE BARRED, CAN NOT BE SUSTAINED AS
TIMELY UNDER SECS. 280 AND 278(D) OF THE REVENUE ACT OF 1926, BECAUSE
BROUGHT WITHIN SIX YEARS OF THE MAKING OF AN ASSESSMENT AGAINST THE
FIRST TRANSFEREE.  P. 404. 

4.  IN DETERMINING WHETHER AN ASSESSMENT AGAINST A TAXPAYER'S
TRANSFEREE WAS IN TIME UNDER THE REVENUE ACT OF 1926, WHICH ALLOWS SIX
YEARS AFTER THE TAXPAYER'S RETURN, SECS. 277(A), 280(D), BUT PROVIDES
THAT THE RUNNING OF THE LIMITATION SHALL BE SUSPENDED WHILE THE
COMMISSIONER IS PROHIBITED FROM MAKING ASSESSMENT AND FOR 60 DAYS
THEREAFTER, SEC. 280(D), IT IS HELD THAT, THE TRANSFEREE HAVING DIED
WHILE HIS PETITION FOR REVIEW WAS PENDING UNDECIDED BEFORE THE BOARD OF
TAX APPEALS, AND NO APPLICATION FOR A SUBSTITUTION HAVING BEEN MADE, IT
WAS ERROR TO INCLUDE IN THE PERIOD OF SUSPENSION 23 MONTHS THAT ELAPSED
BETWEEN THE DEATH AND THE DATE OF AN ATTEMPTED ASSESSMENT, SINCE THE
COMMISSIONER WAS NOT PRECLUDED DURING THOSE MONTHS, BUT COULD HAVE
OBTAINED A DISMISSAL OF THE BOARD'S PROCEEDING WITHIN A REASONABLE TIME
AND MADE HIS ASSESSMENT.  P. 405. 

UNITED STATES V. CONTINENTAL NATIONAL BANK & TRUST CO., TRUSTEE, ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 304 U.S. 554, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING THE AMENDED BILL IN A SUIT BY THE GOVERNMENT AGAINST
BENEFICIARIES AND TRUSTEES UNDER A WILL, TO IMPRESS A TRUST UPON THE
ASSETS OF THE ESTATE, FOR THE COLLECTION OF AN INCOME AND PROFITS TAX,
TO THE EXTENT OF ASSETS TRANSFERRED TO THE TESTATOR BY A CORPORATION
AGAINST WHICH THE TAX WAS ORIGINALLY ASSESSED. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

MAY 6, 1932, PETITIONER SUED RESPONDENTS IN THE FEDERAL COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS TO ENFORCE A CLAIM FOR PART OF INCOME AND
PROFITS TAXES FOR 1920 ASSESSED AGAINST AN ILLINOIS CORPORATION
DISSOLVED IN DECEMBER, 1921.  THE QUESTION FOR DECISION IS WHETHER THE
SUIT IS BARRED BY LAPSE OF TIME. 

THE PERTINENT SUBSTANCE OF THE COMPLAINT, AS AMENDED FEBRUARY 14,
1937, FOLLOWS: 

IN 1919 AND 1920, JAMES DUGGAN, HEREAFTER CALLED THE TESTATOR, WAS
THE PRINCIPAL STOCKHOLDER OF THE JOHNSON CITY & BIG MUDDY COAL & MINING
COMPANY, WHICH OWNED A SUBSIDIARY CORPORATION.  MAY 16, 1921, THESE
CORPORATIONS MADE CONSOLIDATED INCOME AND PROFITS TAX RETURNS FOR 1920,
SHOWING A TAX OF $5,269.21, WHICH WAS PAID.  DURING 1920 AND 1921 THE
MINING COMPANY WAS BEING DISSOLVED; IT CONVERTED ITS ASSETS INTO CASH
AND SECURITIES AND TRANSFERRED $295,331.64 TO TESTATOR; HE APPROPRIATED
IT TO HIS OWN USE.  HAVING DETERMINED DEFICIENCY OF $316,620.61 AGAINST
THE COMPANY, THE COMMISSIONER OF INTERNAL REVENUE DECEMBER 6, 1924 SENT
NOTICE TO IT BY 60-DAY LETTER.  THE TAXPAYER HAVING FAILED TO PETITION
THE BOARD OF TAX APPEALS FOR REDETERMINATION, ASSESSMENT WAS MADE
AGAINST IT FOR THAT AMOUNT. 

APRIL 15, 1926, THE COMMISSIONER NOTIFIED TESTATOR THAT THERE WAS
PROPOSED FOR ASSESSMENT AGAINST HIM THE AMOUNT OF $295,331.64,
CONSTITUTING HIS LIABILITY, AS TRANSFEREE OF TAXPAYER'S ASSETS, ON
ACCOUNT OF THE UNPAID BALANCE OF ITS 1920 TAXES.  JUNE 11, 1926,
TESTATOR FILED WITH THE BOARD OF TAX APPEALS HIS PETITION FOR
REDETERMINATION.  IN MARCH, 1929, HE DIED.  JANUARY 27, 1931, THE BOARD
MADE AN ORDER OF REDETERMINATION IN THE AMOUNT PROPOSED BY THE
COMMISSIONER, WITH INTEREST FROM DECEMBER 6, 1924.  THE ORDER WAS NOT
REVIEWED.  FEBRUARY 14, 1931, THE COMMISSIONER MADE A JEOPARDY
ASSESSMENT AGAINST THE DECEASED IN THE AMOUNT FIXED BY THE BOARD AS HIS
LIABILITY AS TRANSFEREE. 

HIS WILL WAS ADMITTED TO PROBATE; A TRUST COMPANY IT NAMED WAS
APPOINTED EXECUTOR; AND, THE EXECUTOR HAVING BEEN DISMISSED, ONE
ROBINSON WAS, ON SEPTEMBER 15, 1930, APPOINTED ADMINISTRATOR.  BEFORE
SETTLEMENT OF THE ESTATE, PLAINTIFF, APRIL 24, 1931, FILED ITS CLAIM
WITH THE ADMINISTRATOR.  BUT HE PAID NOTHING ON ACCOUNT OF IT AND,
MAKING DISTRIBUTION IN ACCORDANCE WITH THE WILL, TRANSFERRED TO
DEFENDANT HENRY DUGGAN $50,000 AND TO DEFENDANT TRUSTEE THE REST OF THE
ESTATE, ABOUT $1,500,000.  PLAINTIFF ALLEGED THAT THE ASSETS SO
DISTRIBUTED HAD BECOME IMPRESSED WITH A TRUST FOR THE PAYMENT OF ITS
CLAIM AGAINST TESTATOR AND PRAYED DECREE ENFORCING IT AGAINST TRUSTEE
AND BENEFICIARIES UNDER THE WILL TO THE EXTENT OF ASSETS TRANSFERRED BY
THE TAXPAYER TO TESTATOR, WITH INTEREST. 

DEFENDANTS, JUNE 6, 1933, MOVED TO DISMISS THE COMPLAINT ON THE
GROUND THAT THE SUIT WAS BARRED BY SECS. 277, 278, 280, REVENUE ACT,
1926, AS AMENDED, AND SEC. 311(B), REVENUE ACT, 1928.  PLAINTIFF,
JANUARY 11, 1937, CONFESSED DEFENDANTS' MOTION TO DISMISS.  THEN,
APPLYING FOR LEAVE TO AMEND THE COMPLAINT, IT REPRESENTED TO THE COURT
THAT AMENDMENT WAS NECESSARY BECAUSE THE ALLEGATION THAT AN ASSESSMENT
WAS MADE AGAINST TESTATOR WAS OMITTED FROM THE ORIGINAL BILL AND WAS AN
IMPORTANT FACT IN DETERMINING WHETHER THE PRESENT ACTION WAS TIMELY
BROUGHT.  LEAVE HAVING BEEN GRANTED, IT IMMEDIATELY AMENDED BY ADDING
THE ALLEGATION THAT, FEBRUARY 14, 1931, THE COMMISSIONER MADE AGAINST
TESTATOR THE JEOPARDY ASSESSMENT ABOVE REFERRED TO.  THE COMPLAINT WAS
NOT OTHERWISE CHANGED.  MARCH 22, 1937, THE COURT SUSTAINED DEFENDANTS'
MOTION AND ENTERED DECREE DISMISSING THE AMENDED BILL OF COMPLAINT. 
THE CIRCUIT COURT OF APPEALS AFFIRMED.  94 F.2D 81.  THIS COURT GRANTED
A WRIT OF CERTIORARI.  304 U.S. 554. 

THE QUESTION IS WHETHER THE SUIT IS BARRED BY THE STATUTORY
PROVISIONS ON WHICH THE MOTION TO DISMISS WAS BASED.  FIRST TO BE
CONSIDERED ARE SECS. 277, 278 AND 280, READ IN CONNECTION WITH
APPLICABLE PROVISIONS OF SECS. 274 AND 279 OF THE REVENUE ACT OF 1926. 
FN1 

THE PERTINENT SUBSTANCE OF THESE FOLLOWS: 

WITHIN 60 DAYS AFTER NOTICE OF THE COMMISSIONER'S DETERMINATION OF
DEFICIENCY, THE TAXPAYER MAY FILE PETITION WITH THE BOARD OF TAX
APPEALS FOR REDETERMINATION; NO ASSESSMENT OR PROCEEDING IN COURT FOR
COLLECTION SHALL BE MADE OR BEGUN UNTIL THE BOARD'S DECISION HAS BECOME
FINAL.  SEC. 274(A).  FN2  THE AMOUNT REDETERMINED BY DECISION THAT HAS
BECOME FINAL SHALL BE ASSESSED AND UPON HIS DEMAND SHALL BE PAID TO THE
COLLECTOR.  SEC. 274(B). 

ASSESSMENT SHALL BE MADE WITHIN FIVE YEARS AFTER THE RETURN; "NO
PROCEEDINGS IN COURT WITHOUT ASSESSMENT FOR THE COLLECTION OF TAXES
SHALL BE BEGUN AFTER THE EXPIRATION OF SUCH PERIOD."  SEC. 277(A).  THE
RUNNING OF THE STATUTE OF LIMITATIONS ON ASSESSMENT OR PROCEEDING IN
COURT FOR COLLECTION OF DEFICIENCY SHALL BE SUSPENDED FOR THE PERIOD
DURING WHICH THE COMMISSIONER IS PROHIBITED FROM MAKING ASSESSMENT OR
BRINGING SUIT AND FOR 60 DAYS THEREAFTER.  SEC. 277(B).  WHERE THE
ASSESSMENT HAS BEEN MADE WITHIN THE PERIOD PROPERLY APPLICABLE THERETO,
THE TAX MAY BE COLLECTED BY DISTRAINT OR PROCEEDING IN COURT "BUT ONLY
IF BEGUN  ...  WITHIN SIX YEARS AFTER THE ASSESSMENT OF THE TAX."  SEC.
278(D).  IF THE COMMISSIONER BELIEVES THAT ASSESSMENT OR COLLECTION OF
DEFICIENCY WILL BE JEOPARDIZED BY DELAY HE SHALL IMMEDIATELY ASSESS THE
DEFICIENCY AND "NOTICE AND DEMAND SHALL BE MADE BY THE COLLECTOR FOR
THE PAYMENT THEREOF."  SEC. 279(A).  JEOPARDY ASSESSMENT MAY BE MADE
WHETHER OR NOT THE TAXPAYER HAS FILED PETITION WITH THE BOARD.  SEC.
279(C).  IF IT IS MADE AFTER THE BOARD'S DECISION IT MAY BE ONLY FOR
THE DEFICIENCY DETERMINED BY THE DECISION.  SEC. 279(D).  THE TAXPAYER
MAY OBTAIN STAY OF COLLECTION OF THE JEOPARDY ASSESSMENT.  SEC. 279(F)
(H). 

THE LIABILITY AT LAW OR IN EQUITY OF "A TRANSFEREE OF PROPERTY OF A
TAXPAYER IN RESPECT OF THE TAX" SHALL BE ASSESSED, COLLECTED, AND PAID
IN THE SAME MANNER AND SUBJECT TO THE SAME PROVISIONS AND LIMITATIONS
AS IN CASE OF A DEFICIENCY IN A TAX.  SEC. 280(A).  TRANSFEREE
LIABILITY MUST BE ASSESSED WITHIN ONE YEAR FROM EXPIRATION OF THE
PERIOD OF LIMITATION FOR ASSESSMENT AGAINST THE TAXPAYER.  SEC.
280(B)(1).  THE RUNNING OF THE PERIOD OF LIMITATION ON TRANSFEREE
LIABILITY SHALL, AFTER NOTICE TO TRANSFEREE UNDER SEC. 274(A), BE
SUSPENDED FOR THE PERIOD DURING WHICH THE COMMISSIONER IS PROHIBITED
FROM MAKING ASSESSMENT OF THAT LIABILITY AND FOR 60 DAYS THEREAFTER. 
SEC. 280(D). 

THIS IS NOT A SUIT UPON ASSESSMENT OF DEFICIENCY AGAINST THE TAXPAYER
ON ACCOUNT OF THE COMMISSIONER'S DETERMINATION AS SHOWN IN HIS LETTER
OF DECEMBER 6, 1924.  THE TIME FOR SUCH A SUIT, SIX YEARS AFTER
ASSESSMENT, EXPIRED LONG BEFORE THE COMMENCEMENT OF THIS SUIT.  SEC.
278(D).  UNITED STATES V. UPDIKE, 281 U.S. 489, 494. 

NOR IS IT A SUIT AUTHORIZED TO BE BROUGHT, IN ABSENCE OF ASSESSMENT,
TO ENFORCE LIABILITY OF A TRANSFEREE OF THE TAXPAYER'S PROPERTY.  THE
TIME FOR BRINGING SUCH A SUIT IS SIX YEARS, MADE UP OF FIVE YEARS AFTER
RETURN, ALLOWED FOR ASSESSMENT AGAINST TAXPAYER, SEC. 277(A), AND ONE
YEAR THEREAFTER FOR ASSESSMENT AGAINST TRANSFEREE.  SEC. 280(B)(1). 
THE TAXPAYER HAVING MADE ITS RETURN ON MAY 16, 1921, THE SIX YEARS
EXPIRED MAY 16, 1927. 

THIS SUIT IS AGAINST TRANSFEREES UNDER THE WILL OF A TRANSFEREE OF
THE PROPERTY OF THE TAXPAYER; IT IS BASED ON THE JEOPARDY ASSESSMENT
MADE AGAINST TESTATOR. 

PLAINTIFF ASSERTS THAT IT HAD SIX YEARS AFTER THAT ASSESSMENT, OR
UNTIL FEBRUARY 14, 1937, WITHIN WHICH TO BRING THIS SUIT.  ITS
REASONING IS THAT SEC. 280, SPECIFYING NO PERIOD OF LIMITATION FOR
COLLECTION OF LIABILITY OF A TRANSFEREE AFTER IT HAS BEEN ASSESSED, AND
PROVIDING THAT IT SHALL BE COLLECTED SUBJECT TO THE SAME LIMITATIONS AS
IN THE CASE OF DEFICIENCY IN A TAX, MAKES APPLICABLE THE PERIOD OF
LIMITATION UPON COLLECTION DEFINED IN SEC. 278(D). 

BUT NO ASSESSMENT WAS MADE AGAINST ANY OF THE DEFENDANTS.  NONE OF
THEM IS A TRANSFEREE OF THE PROPERTY OF THE TAXPAYER; ALL ARE
TESTAMENTARY TRANSFEREES OF THE ESTATE OF TESTATOR.  IT IS CLEAR THAT
SECS. 278(D) AND 280 UPON WHICH PLAINTIFF RELIES ARE NOT BROAD ENOUGH
TO IMPOSE ON DEFENDANTS ANY LIABILITY ON ACCOUNT OF THE ASSESSMENT
AGAINST THE TESTATOR.  FN3  AND, AS ALREADY SHOWN, SUIT ON ASSESSMENT
AGAINST THE TAXPAYER, OR SUIT IN ABSENCE OF ASSESSMENT OF TRANSFEREE
LIABILITY, WAS BY THE APPLICABLE STATUTES OF LIMITATIONS BARRED LONG
BEFORE THIS SUIT WAS BROUGHT. 

MOREOVER, THE ASSESSMENT SUED ON WAS OUT OF TIME.  PLAINTIFF CITES
SEC. 280(D) AND SEEKS TO APPLY TO THE FACTS OF THIS CASE THE RULE THAT
ASSESSMENT AGAINST TRANSFEREE IS REQUIRED TO BE MADE WITHIN 6 YEARS
AFTER RETURN, SECS. 277(A), 280(B)(1), AS FOLLOWS:  THE TAXPAYER MADE
ITS RETURN MAY 16, 1921.  WHEN, ON APRIL 15, 1926, THE COMMISSIONER
NOTIFIED TESTATOR THAT HE PROPOSED TO ASSESS TRANSFEREE LIABILITY
AGAINST HIM, THERE REMAINED 13 MONTHS AND A DAY OF THE PERIOD ALLOWED
FOR MAKING THAT ASSESSMENT; THE COMMISSIONER WAS PROHIBITED FROM MAKING
THE PROPOSED ASSESSMENT FOR THE 60-DAY PERIOD WITHIN WHICH TESTATOR WAS
PERMITTED TO PETITION FOR REDETERMINATION BY THE BOARD AND UNTIL ITS
DECISION, JANUARY 27, 1931, BECAME FINAL, JUNE 27, 1931, AND FOR 60
DAYS THEREAFTER, SEPTEMBER 25, 1931.  SECS. 278(D), 280(D).  TAKING IN
THE 13 MONTHS AND A DAY, PLAINTIFF HAD UNTIL OCTOBER 25, 1932 WITHIN
WHICH TO ASSESS TESTATOR. 

BUT THAT CALCULATION IS DEFECTIVE FOR IT FAILS TO TAKE INTO ACCOUNT
ANY PART OF THE PERIOD AFTER APPEAL TO THE BOARD THAT ELAPSED BETWEEN
THE DEATH OF TESTATOR IN MARCH, 1929, AND THE ASSESSMENT, MORE THAN 23
MONTHS LATER, FEBRUARY 14, 1931.  REDETERMINATION IS GRANTED TO
SAFEGUARD AGAINST ERRONEOUS EXACTIONS BY THE COMMISSIONER.  SUSPENSION
OF HIS AUTHORITY TO ASSESS OR COLLECT IS PROTECTION AGAINST COMPULSORY
PAYMENT PENDING FINAL DECISION UPON OBJECTIONS INTERPOSED BY
PETITIONER.  THE PROCEEDING IS AN ADVERSARY ONE IN WHICH THE PARTY
PRAYING RELIEF BY REDETERMINATION IS PETITIONER AND THE COMMISSIONER IS
RESPONDENT.  THE CONTROVERSY IS BROUGHT TO ISSUE BY PETITION, ANSWER,
AND REPLY THAT ARE BY THE BOARD REQUIRED TO BE DEFINITE AND CERTAIN. 
RULES 6, 14, 15.  FN4  BEFORE ITS DECISION EITHER PARTY, FOR CAUSE
SHOWN, MAY HAVE THE PROCEEDING DISMISSED.  FN5  RULE 31.  AND IN CASE
OF PETITIONER'S DEATH, THE BOARD MAY ORDER SUBSTITUTION OF PROPER
PARTIES.  RULE 37. 

NO PERSONAL REPRESENTATIVE OF TESTATOR NOR ANY OTHER PERSON APPLIED
FOR SUBSTITUTION OF A PARTY TO CARRY ON THE PROCEEDING IN THE PLACE OF
THE DECEASED TESTATOR, AND NONE WAS ORDERED.  THE COMMISSIONER FAILED
TO OBTAIN OR SEEK DISMISSAL FOR LACK OF A NECESSARY PARTY OR WANT OF
PROSECUTION.  CF. RUSK V. COMMISSIONER (CCA 7) 53 F.2D 428, 430. 
PLAINTIFF DOES NOT CONTEND THAT, NO SUBSTITUTION HAVING BEEN APPLIED
FOR OR MADE, THE COMMISSIONER WAS NOT ENTITLED TO AN ORDER OF
DISMISSAL.  NOR DOES IT SUGGEST ANYTHING TO SUPPORT THE ASSUMPTION,
MADE IN ITS CALCULATION OF TIME AND THROUGHOUT ITS ARGUMENT, THAT
SUSPENSION OF COMMISSIONER'S AUTHORITY TO ASSESS CONTINUED THROUGH THE
PERIOD OF MORE THAN 23 MONTHS BETWEEN TESTATOR'S DEATH AND THE
ASSESSMENT.  THERE IS NO GROUND ON WHICH IT MAY BE HELD THAT CONGRESS
INTENDED IN CASE OF DEATH OF PETITIONER, WHERE NO APPLICATION FOR OR
ORDER OF SUBSTITUTION IS MADE, INDEFINITELY TO CONTINUE SUSPENSION OF
THE COMMISSIONER'S AUTHORITY TO ASSESS.  EQUALLY UNREASONABLE WOULD IT
BE TO HOLD THAT SUSPENSION OF THE COMMISSIONER'S AUTHORITY TO ASSESS
THE ASSERTED TRANSFEREE LIABILITY CONTINUED AFTER TESTATOR'S DEATH FOR
MORE THAN A REASONABLE TIME WITHIN WHICH, NO SUBSTITUTION HAVING BEEN
APPLIED FOR OR MADE, TO OBTAIN DISMISSAL.  UNQUESTIONABLY THAT TIME AND
MORE HAD EXPIRED LONG BEFORE THE ASSESSMENT WAS MADE. 

AS THE SUIT IS BARRED BY PROVISIONS OF THE REVENUE ACT OF 1926, WE
NEED NOT CONSIDER SEC. 311(B) OF THE REVENUE ACT OF 1928, UPON WHICH
DEFENDANTS ALSO RELIED.  JUDGMENT AFFIRMED. 

FN1  44 STAT. 55 ET SEQ. 

FN2  THE BOARD'S DECISION BECOMES FINAL UPON EXPIRATION OF THE TIME
(SIX MONTHS AFTER IT RENDERS DECISION) ALLOWED FOR FILING PETITION FOR
REVIEW BY A CIRCUIT COURT OF APPEALS OR THE COURT OF APPEALS OF THE
DISTRICT OF COLUMBIA.  SECS. 1001, 1005. 

FN3  CF. SEC. 311, REVENUE ACT OF 1928.  IT PROVIDES: 

"(A)  THE AMOUNTS OF THE FOLLOWING LIABILITIES SHALL, EXCEPT AS
HEREINAFTER IN THIS SECTION PROVIDED, BE ASSESSED, COLLECTED, AND PAID
IN THE SAME MANNER AND SUBJECT TO THE SAME PROVISIONS AND LIMITATIONS
AS IN THE CASE OF A DEFICIENCY IN A TAX IMPOSED BY THIS TITLE.  ...
(1) THE LIABILITY, AT LAW OR IN EQUITY, OF A TRANSFEREE OF PROPERTY OF
A TAXPAYER, IN RESPECT OF THE TAX ...  IMPOSED UPON THE TAXPAYER BY
THIS TITLE.  ...    "(B)  THE PERIOD OF LIMITATION FOR ASSESSMENT OF
ANY SUCH LIABILITY OF A TRANSFEREE  ...  SHALL BE AS FOLLOWS:  (1)  IN
THE CASE OF THE LIABILITY OF AN INITIAL TRANSFEREE OF THE PROPERTY OF
THE TAXPAYER,  - WITHIN ONE YEAR AFTER THE EXPIRATION OF THE PERIOD OF
LIMITATION FOR ASSESSMENT AGAINST THE TAXPAYER; (2) IN THE CASE OF THE
LIABILITY OF A TRANSFEREE OF A TRANSFEREE OF THE PROPERTY OF THE
TAXPAYER,  - WITHIN ONE YEAR AFTER THE EXPIRATION OF THE PERIOD OF
LIMITATION FOR ASSESSMENT AGAINST THE PRECEDING TRANSFEREE, BUT ONLY IF
WITHIN THREE YEARS AFTER THE EXPIRATION OF THE PERIOD OF LIMITATION FOR
ASSESSMENT AGAINST THE TAXPAYER; - EXCEPT THAT IF BEFORE THE EXPIRATION
OF THE PERIOD OF LIMITATIONS FOR THE ASSESSMENT OF THE LIABILITY OF THE
TRANSFEREE, A COURT PROCEEDING FOR THE COLLECTION OF THE TAX OR
LIABILITY IN RESPECT THEREOF HAS BEEN BEGUN AGAINST THE TAXPAYER OR
LAST PRECEDING TRANSFEREE, RESPECTIVELY,  - THEN THE PERIOD OF
LIMITATION FOR ASSESSMENT OF THE LIABILITY OF THE TRANSFEREE SHALL
EXPIRE ONE YEAR AFTER THE RETURN OF EXECUTION IN THE COURT
PROCEEDING." 

THE REPORT OF THE SENATE COMMITTEE ON FINANCE STATES:  "SECTION 280
OF THE REVENUE ACT OF 1926 DOES NOT SPECIFICALLY PROVIDE ANY LIMITATION
PERIOD IN THE CASE OF A TRANSFEREE OF A TRANSFEREE OF THE TAXPAYER. 
THAT THE PERIOD FOR ASSESSMENT IN SUCH CASE SHALL BE ONE YEAR AFTER THE
EXPIRATION OF THE PERIOD OF LIMITATION FOR ASSESSMENT AGAINST THE
PRECEDING TRANSFEREE.  IT SEEMED TO THE COMMITTEE THAT THIS WOULD
UNDULY PROLONG LITIGATION AND THAT THERE SHOULD BE A TIME WHEN THE
TRANSFEREE MAY KNOW THAT HE IS NO LONGER LIABLE TO BE PROCEEDED
AGAINST.  A COMMITTEE AMENDMENT THEREFORE PROVIDES THAT IN ALL CASES
THE TAX MUST BE ASSESSED WITHIN THREE YEARS AFTER THE EXPIRATION OF THE
PERIOD OF LIMITATION FOR ASSESSMENT AGAINST THE TAXPAYER."  SENATE
REPORT NO. 960, 70TH CONGRESS, 1ST SESSION, P. 32. 

FN4  REVISED TO NOVEMBER 1, 1929.  RULES 31 AND 37 ARE NUMBERED 21
AND 23 IN THE PRESENT EDITION OF THE RULES. 

FN5  SECTION 906(C), REVENUE ACT OF 1926, PROVIDES:  "IF A PETITION
FOR A REDETERMINATION OF A DEFICIENCY HAS BEEN FILED BY THE TAXPAYER, A
DECISION OF THE BOARD DISMISSING THE PROCEEDING SHALL ...  BE
CONSIDERED AS ITS DECISION THAT THE DEFICIENCY IS THE AMOUNT DETERMINED
BY THE COMMISSIONER.  AN ORDER SPECIFYING SUCH AMOUNT SHALL BE ENTERED
IN THE RECORDS OF THE BOARD UNLESS THE BOARD CAN NOT DETERMINE SUCH
AMOUNT FROM THE PLEADINGS."  44 STAT. 107. 

MR. JUSTICE STONE. 

I THINK THE JUDGMENT SHOULD BE REVERSED. 

THE FIRST TRANSFEREE WAS A "TAXPAYER" WITHIN THE MEANING OF SEC.
280(A)(1), SINCE HE WAS LIABLE UNDER THE PROVISIONS OF THE REVENUE LAW
TO PAY THE TAX AND, LIKE OTHER TAXPAYERS, WAS SUBJECT TO ASSESSMENT AND
DISTRAINT AS WELL AS TO A SUIT FOR RECOVERY OF THE TAX.  UNITED STATES
V. UPDIKE, 281 U.S. 489, 494.  RESPONDENT, THE SECOND TRANSFEREE, WAS
THEREFORE IN THE WORDS OF SEC. 280(A)(1), "A TRANSFEREE OF PROPERTY OF
A TAXPAYER," AND ITS TAX LIABILITY WAS BY THAT SECTION TO "BE ASSESSED,
COLLECTED, AND PAID IN THE SAME MANNER AND SUBJECT TO THE SAME
PROVISIONS AND LIMITATIONS AS IN THE CASE OF A DEFICIENCY IN A TAX
IMPOSED BY THIS TITLE  ...  INCLUDING THE PROVISIONS  ...  AUTHORIZING
DISTRAINT AND PROCEEDINGS IN COURT FOR COLLECTION  ...  " 

UNDER SEC. 278(D) THE STATUTE OF LIMITATIONS FOR COLLECTION OF THE
TAX FROM THE FIRST TRANSFEREE DID NOT EXPIRE UNTIL JANUARY, 1931, SIX
YEARS AFTER ASSESSMENT OF THE TAX AGAINST THE ORIGINAL TAXPAYER AND
FIRST TRANSFEROR.  UNITED STATES V. UPDIKE, SUPRA.  BY SEC. 277(B) THE
RUNNING OF THE SIX YEAR STATUTE IS SUSPENDED, AFTER THE BEGINNING OF
DEFICIENCY PROCEEDINGS UNDER SEC. 274(A), "FOR THE PERIOD DURING WHICH
THE COMMISSIONER IS PROHIBITED FROM MAKING THE ASSESSMENT OR BEGINNING
DISTRAINT OR A PROCEEDING IN COURT."  AND BY SEC. 274(A) IT IS PROVIDED
THAT DURING THE PENDENCY OF DEFICIENCY PROCEEDINGS "NO ASSESSMENT OF A
DEFICIENCY IN RESPECT OF THE TAX IMPOSED BY THIS TITLE AND NO DISTRAINT
OR PROCEEDING IN COURT FOR ITS COLLECTION SHALL BE MADE, BEGUN, OR
PROSECUTED  ...  " IT FOLLOWS THAT THE RUNNING OF THE STATUTE OF
LIMITATIONS IN FAVOR OF THE FIRST TRANSFEREE WAS SUSPENDED DURING THE
PENDENCY OF THE DEFICIENCY PROCEEDINGS INTIATED WITH RESPECT TO HIM
APRIL 15, 1926, AT LEAST, AS THE OPINION OF THE COURT STATES, UNTIL THE
DEATH OF THE FIRST TRANSFEREE IN MARCH, 1929, OR FOR A PERIOD OF NEARLY
THREE YEARS.  THE PERIOD OF LIMITATIONS FOR THE COLLECTION OF THE TAX
FROM THE FIRST TRANSFEREE WAS THUS EXTENDED AT LEAST UNTIL 1933, WITHIN
WHICH TIME THE PRESENT SUIT WAS BROUGHT AGAINST RESPONDENT.  BY VIRTUE
OF THE TRANSFER, THE TRANSFEREE, TO THE EXTENT OF THE PROPERTY
RECEIVED, BECOMES SUBJECT TO THE TAX LIABILITY OF THE TRANSFEROR. 
PHILLIPS V. COMMISSIONER, 283 U.S. 589, 592, 593, AND CASES CITED IN
FOOTNOTE 1.  SINCE THE PERIOD OF LIMITATIONS AND THE PROVISIONS FOR ITS
SUSPENSION UNDER SECS. 274(A) AND 277(B), APPLICABLE TO THE FIRST
TRANSFEREE AND TAXPAYER, ARE BY SEC. 280(A)(1) LIKEWISE APPLICABLE TO
HIS TRANSFEREE, WHO IS ALSO A TAXPAYER, UNITED STATES V. UPDIKE, SUPRA,
494, IT FOLLOWS THAT THE STATUTE OF LIMITATIONS APPLICABLE TO
RESPONDENT, THE SECOND TRANSFEREE, HAD NOT EXPIRED WHEN THE PRESENT
SUIT WAS BROUGHT IN MAY, 1932. 

NO DISTINCTION WAS MADE BY THE REVENUE LAWS BETWEEN THE LIABILITY AND
THE PERIOD OF LIMITATIONS APPLICABLE TO A FIRST TRANSFEREE AND THOSE
APPLICABLE TO A SECOND UNTIL THE ENACTMENT OF SEC. 311 OF THE REVENUE
ACT OF 1928, WHICH PROVIDED IN SUBSECTION (B)(2) THAT THE LIABILITY OF
A SECOND TRANSFEREE OF THE PROPERTY OF THE TAXPAYER SHOULD NOT EXTEND
BEYOND THREE YEARS AFTER THE EXPIRATION OF THE PERIOD OF LIMITATION FOR
ASSESSMENT AGAINST THE ORIGINAL TAXPAYER, EXCEPT THAT PROVISION WAS
MADE FOR AN EXTENSION OF THE TIME IF WITHIN THAT PERIOD "A COURT
PROCEEDING FOR COLLECTION OF THE TAX OR LIABILITY" HAD BEEN BEGUN
AGAINST THE ORIGINAL TAXPAYER OR THE LAST PRECEDING TRANSFEREE.  IN
RECOMMENDING THESE CHANGES THE REPORT OF THE SENATE FINANCE COMMITTEE,
NO. 960, 70TH CONGRESS, 1ST SESS., P. 32, PREPARED BEFORE OUR DECISION
IN THE UPDIKE CASE, POINTED OUT THAT SEC. 280 OF THE 1926 ACT DID NOT
SPECIFICALLY PROVIDE ANY LIMITATION PERIOD IN THE CASE OF A TRANSFEREE
OF A TRANSFEREE, AND IT STATED THAT THE PURPOSE OF THE NEW PROVISIONS
IN SEC. 311(B)(2) WAS TO SHORTEN THE PERIOD DURING WHICH PROCEEDINGS
MIGHT BE HAD AGAINST A SECOND TRANSFEREE.  THIS LEGISLATIVE HISTORY IS
PERSUASIVE THAT UNDER SEC. 280 OF THE 1926 ACT, AS ITS LANGUAGE
INDICATES, THE SECOND TRANSFEREE IS THE TRANSFEREE OF A TAXPAYER AND
SUBJECT TO THE SAME PERIOD OF LIMITATIONS AND PROVISIONS FOR ITS
EXTENSION AS IS HIS TRANSFEROR. 

AS A TRANSFEREE IS SUBJECT TO THE TAX LIABILITY OF HIS TRANSFEROR,
THE SECOND TRANSFEREE UNDER THE 1926 ACT IS EITHER SUBJECT TO THE SAME
PERIOD OF LIMITATIONS AS HIS TRANSFEROR, OR THERE IS NO STATUTE OF
LIMITATIONS APPLICABLE TO HIM.  BUT IF THE FIRST TRANSFEREE IS A
TAXPAYER, SO AS TO AVAIL HIMSELF OF THE BENEFIT OF THE SIX YEAR STATUTE
OF LIMITATIONS FOR COLLECTION OF THE TAX, AS HELD IN THE UPDIKE CASE,
HIS TRANSFEREE IS LIKEWISE A TAXPAYER, AS WELL AS THE TRANSFEREE OF A
TAXPAYER, SO AS TO BE SUBJECT TO THE BURDEN OF THE PROVISIONS EXTENDING
THE PERIOD OF LIMITATION FOR COLLECTION OF THE TAX.  SEC. 280(A)(1). 

MR. JUSTICE BLACK CONCURS. 
..END :













JAMES V. UNITED ARTISTS CORP., 305 U.S. 410 


NO. 161.  ARGUED DECEMBER 8, 9, 1938.  - DECIDED JANUARY 3, 1939.  - 23
F.SUPP.  353, AFFIRMED. 


APPELLEE, A FOREIGN CORPORATION ENGAGED IN THE BUSINESS OF
DISTRIBUTING MOTION PICTURE FILMS FOR EXHIBITION IN THEATRES IN VARIOUS
STATES, HAD NO OFFICE OR PLACE OF BUSINESS IN WEST VIRGINIA; IT CARRIED
ON NO BUSINESS THERE EXCEPT SUCH AS WAS INVOLVED IN THE SOLICITATION BY
A TRAVELING REPRESENTATIVE OF EXHIBITION CONTRACTS ALL OF WHICH WERE
MADE OUTSIDE OF THE STATE.  TO EXHIBITORS THERE IT SHIPPED FILMS FROM
OUTSIDE OF THE STATE AND THESE WERE RETURNED BY THE EXHIBITORS LIKEWISE
TO POINTS OUTSIDE OF THE STATE.  OTHER THAN THESE FILMS, WHEN
TEMPORARILY THERE, IT HAD NO PROPERTY IN THE STATE.  IT HAD NO
COLLECTION AGENT IN THE STATE, BUT ALL SUMS DUE UNDER THE CONTRACTS
WERE REQUIRED TO BE PAID AT OFFICES OUTSIDE OF THE STATE.  WHEN THE
CONTRACT WAS FOR A PERCENTAGE OF THE EXHIBITOR'S GROSS RECEIPTS, THE
EXHIBITOR AGREED TO SET APART SUCH PERCENTAGE "IN TRUST" TO BE PAID TO
APPELLEE OUTSIDE THE STATE.  HELD:  APPELLEE WAS NOT SUBJECT TO THE
TAX, MEASURED BY GROSS INCOME, IMPOSED BY SEC. 2(I) OF ART. 13, C. 11,
OF THE WEST VIRGINIA CODE, ON ALL ENGAGED WITHIN THE STATE "IN THE
BUSINESS OF COLLECTING INCOMES FROM THE USE OF REAL OR PERSONAL
PROPERTY."  P. 414. 

SO CONSTRUED IN THE ABSENCE OF A STATE SUPREME COURT DECISION
INTERPRETING THE SECTION AND OF ANY EVIDENCE OF ITS LEGISLATIVE
HISTORY; AND IN VIEW OF THE EMPHASIS PUT BY THE SECTION AND ITS VARIOUS
SUBSECTIONS ON THE CARRYING ON OF BUSINESS OR OTHER SPECIFIED
ACTIVITIES WITHIN THE STATE AS THE REAL INCIDENCE OF THE TAX, AND THE
FACT THAT THE EXHIBITORS' GROSS RECEIPTS ARE TAXED TO THEM UNDER
ANOTHER PROVISION OF THE STATUTE.  QUESTIONS AS TO THE POWER OF A STATE
TO LAY A TAX ON INCOME DERIVED FROM SOURCES WITHIN IT, AND AS TO THE
VALIDITY OF A TAX UPON SOLICITATION WITHIN THE STATE OF THE CONTRACTS,
ARE NOT HERE INVOLVED. 

JAMES V. UNITED ARTISTS CORP. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF WEST VIRGINIA. 

APPEAL FROM A DECREE OF A THREE-JUDGE DISTRICT COURT, ENJOINING THE
COLLECTION OF A STATE TAX. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL REQUIRES CONSIDERATION OF BUT A SINGLE QUESTION:  WHETHER
APPELLEE IS SUBJECT TO THE PROVISIONS OF A STATUTE OF WEST VIRGINIA
WHICH LAYS A TAX, MEASURED BY GROSS RECEIPTS, "UPON EVERY PERSON
(INCLUDING CORPORATIONS) ENGAGING  ...  WITHIN THIS STATE IN THE
BUSINESS OF COLLECTING INCOMES FROM THE USE OF REAL OR PERSONAL
PROPERTY.  ..." 

APPELLEE, A DELAWARE CORPORATION, HAVING AN OFFICE AND ITS PRINCIPAL
PLACE OF BUSINESS IN NEW YORK CITY, BROUGHT THE PRESENT SUIT IN THE
DISTRICT COURT FOR SOUTHERN WEST VIRGINIA AGAINST APPELLANT, A WEST
VIRGINIA TAX OFFICIAL, TO RESTRAIN COLLECTION OF A TAX IMPOSED BY
ARTICLE 13 OF CHAPTER 11 OF THE WEST VIRGINIA CODE, AS AMENDED MARCH 9,
1935, BY C. 86, WEST VIRGINIA LAWS OF 1935, ON THE GROUND THAT THE
APPELLEE WAS NOT, BY THE TERMS OF THE STATUTE, SUBJECT TO THE TAX, AND
THAT THE TAX WAS AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE. 
FN1 

THE DISTRICT COURT, THREE JUDGES SITTING, ADOPTED AS ITS FINDINGS THE
FACTS AS STIPULATED.  IT FOUND THAT THE AMOUNT OF THE TAX EXCEEDED
$3,000 AND THAT SUCH JUDICIAL REMEDY AS THERE WAS UNDER WEST VIRGINIA
LAW FOR RECOVERY OF THE TAX, IF PAID, WAS NOT ENFORCEABLE AT LAW IN THE
FEDERAL COURTS, AND THAT BY REASON OF PENALTIES FOR NONPAYMENT, SOME OF
WHICH WERE CUMULATIVE, APPELLEE WAS WITHOUT ADEQUATE LEGAL REMEDY.  THE
COURT CONCLUDED THAT APPELLEE WAS NOT DOING BUSINESS IN WEST VIRGINIA
OR ENGAGED THERE IN THE BUSINESS OF COLLECTING INCOME FROM THE USE OF
PERSONAL PROPERTY, WITHIN THE MEANING OF THE APPLICABLE TAXING ACT, AND
THAT THE ATTEMPTED TAX WAS AN UNCONSTITUTIONAL BURDEN ON INTERSTATE
COMMERCE, AND DECREED THAT COLLECTION OF THE TAX BE PERMANENTLY
ENJOINED.  23 F.SUPP.  353.  THE CASE COMES HERE ON APPEAL UNDER SEC.
266 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 380. 

AMENDED, LAYS ANNUAL PRIVILEGE TAXES UPON VARIOUS BUSINESSES AND
ACTIVITIES CARRIED ON WITHIN THE STATE.  SECTION 2(G) IMPOSES A TAX OF
ONE-HALF OF ONE PER CENT. OF THE GROSS INCOME DERIVED FROM THE BUSINESS
OF OPERATING A THEATRE OR MOVING PICTURE SHOW.  SECTION 2(H) TAXES THE
GROSS RECEIPTS OF EVERY PERSON ENGAGING WITHIN THE STATE IN ANY
BUSINESS NOT OTHERWISE SPECIFICALLY TAXED, AND SEC. 2(I) LEVIES UPON
"EVERY PERSON ENGAGING  ...  WITHIN THIS STATE IN THE BUSINESS OF
COLLECTING INCOMES FROM THE USE OF REAL OR PERSONAL PROPERTY" A TAX OF
ONE PER CENT. "OF THE GROSS INCOME OF ANY SUCH ACTIVITY." 

APPELLEE IS ENGAGED IN THE BUSINESS OF DISTRIBUTING MOTION PICTURE
FILMS FOR EXHIBITION IN THEATRES IN VARIOUS STATES, INCLUDING WEST
VIRGINIA.  IT MAINTAINS BRANCH OFFICES IN OHIO, PENNSYLVANIA, AND THE
DISTRICT OF COLUMBIA, BUT HAS NO OFFICE OR PLACE OF BUSINESS IN WEST
VIRGINIA, AND HAS NO AGENTS OR EMPLOYEES IN THE STATE OTHER THAN A
TRAVELING REPRESENTATIVE WHO VISITS THE STATE TO SOLICIT FROM THEATRE
MANAGERS OR OWNERS CONTRACTS FOR THE EXHIBITION THERE OF FILMS TO BE
SUPPLIED BY APPELLEE.  APPELLEE OWNS NO PROPERTY IN WEST VIRGINIA OTHER
THAN THE FILMS SENT THERE TEMPORARILY FOR EXHIBITION AND AFTERWARD
RETURNED TO IT AT POINTS WITHOUT THE STATE. 

IN THE COURSE OF ITS BUSINESS APPELLEE FROM TIME TO TIME MAKES PUBLIC
ANNOUNCEMENTS OF ITS OFFERING OF FILMS.  THEATRE OWNERS OR MANAGERS IN
WEST VIRGINIA SIGN WRITTEN APPLICATIONS IN THE FORM OF OFFERS FOR
LICENSE CONTRACTS PERMITTING THE EXHIBITION IN WEST VIRGINIA OF SUCH
FILMS AS THEY DESIRE TO SHOW THERE.  THE SIGNED APPLICATIONS ARE
TRANSMITTED TO APPELLEE'S NEW YORK OFFICE, WHERE IT ACCEPTS OR REJECTS
THEM.  WHEN THEY ARE ACCEPTED, APPELLEE SIGNS A WRITTEN ACCEPTANCE
ATTACHED TO THE APPLICATION AND RETURNS THE EXECUTED CONTRACT TO THE
EXHIBITOR.  THE SUBSEQUENT COURSE OF BUSINESS BETWEEN APPELLEE AND THE
WEST VIRGINIA EXHIBITOR CONFORMS TO THE TERMS OF THE CONTRACT.  IT
CALLS FOR THE DELIVERY OF THE FILMS BY SHIPMENT FROM ANY OF APPELLEE'S
EXCHANGES TO THE EXHIBITOR IN WEST VIRGINIA, AND PROVIDES FOR
EXHIBITION OF THE FILMS FOR A SPECIFIED PERIOD, FOR WHICH THE EXHIBITOR
UNDERTAKES TO PAY A FIXED SUM OR A PERCENTAGE OF THE RECEIPTS FROM
EXHIBITION, AND FOR THE RETURN OF THE FILMS BY THE EXHIBITOR AFTER THEY
ARE SHOWN, BY SHIPPING THEM TO ANOTHER EXHIBITOR OR TO ONE OF THE
APPELLEE'S EXCHANGES, AS APPELLEE MAY DIRECT. 

WHEN THE LICENSE IS UPON A PERCENTAGE BASIS, THE EXHIBITOR UNDERTAKES
TO SEGREGATE APPELLEE'S PERCENTAGE OF THE BOX OFFICE RECEIPTS AND TO
HOLD IT "IN TRUST" AND PAY IT OVER TO THE APPELLEE DAILY.  BUT THE
CONTRACT PROVIDES THAT "ANY AND ALL PAYMENTS TO BE MADE HEREUNDER SHALL
BE PAYABLE TO THE DISTRIBUTOR AT THE CITY IN WHICH IS LOCATED THE
EXCHANGE FROM WHICH THE EXHIBITOR IS SERVED," AND ALL PAYMENTS DUE
APPELLEE FROM WEST VIRGINIA EXHIBITORS ARE SENT BY THEM TO APPELLEE AT
POINTS WITHOUT THE STATE. 

UPON THE ARGUMENT THE STATE CONCEDED THAT THE EXHIBITORS OF
APPELLEE'S FILMS IN WEST VIRGINIA ARE SUBJECT TO AND PAY THE TAX
IMPOSED ON OPERATORS OF MOVING PICTURE HOUSES BY SEC. 2(G) AND THAT THE
TAX IS MEASURED BY THE ENTIRE GROSS RECEIPTS FROM EXHIBITING THE FILMS,
ASCERTAINED WITHOUT DEDUCTING THE PERCENTAGE PAYABLE TO APPELLEE.  THE
ATTORNEY GENERAL OF THE STATE DISCLAIMED ANY CONTENTION THAT APPELLEE
WAS TAXABLE UNDER SEC. 2(H), SEE PENNYWITT V. BLUE, 73 W. VA. 718; 81
S.E. 399, OR UNDER ANY PROVISIONS OF THE STATUTE OTHER THAN THOSE OF
2(I) LAYING A GROSS RECEIPTS TAX ON EVERY PERSON ENGAGING WITHIN THE
STATE IN THE BUSINESS OF COLLECTING INCOMES FROM PROPERTY. 

THE SUPREME COURT OF WEST VIRGINIA APPEARS NOT TO HAVE CONSTRUED THIS
THE STATUTE INDICATING THAT IT HAS ANY PURPOSE OR MEANING OTHER THAN
THAT SUGGESTED BY ITS WORDS.  WE ARE NOT HERE CONCERNED WITH THE
QUESTION WHETHER A STATE, BY A STATUTE APPROPRIATELY FRAMED, MAY LAY A
TAX ON INCOME DERIVED FROM SOURCES WITHIN IT, OR WHETHER THE
SOLICITATION OF THE CONTRACTS MAY BE TAXED.  NO SUCH TAXATION IS
ATTEMPTED BY SEC. 2(I).  THE TAXING PROVISIONS OF SEC. 2 ARE RESTRICTED
IN THEIR APPLICATION TO VARIOUS ENUMERATED CLASSES OF ACTIVITIES WITHIN
THE STATE, ONE OF WHICH, SPECIFIED IN SEC. 2(I), IS THAT OF ENGAGING
THERE IN THE BUSINESS OF COLLECTING INCOMES.  THE CONDUCT OF SUCH A
BUSINESS OR ACTIVITY BY APPELLEE REQUIRES ITS PRESENCE THERE, OR THAT
OF ITS AGENT, AND THE COLLECTION OF INCOME WITHIN THE STATE BY THE ONE
OR THE OTHER.  AS IT IS STIPULATED AND FOUND THAT APPELLEE CARRIES ON
NO BUSINESS WITHIN THE STATE, EXCEPT SUCH AS IS INVOLVED IN
SOLICITATION OF THE CONTRACTS, AND HAS NO COLLECTION AGENT THERE, AND
AS THE EXHIBITORS THERE ARE BOUND TO AND DO PAY ALL SUMS DUE UNDER
THEIR CONTRACTS TO APPELLEE AT POINTS OUTSIDE THE STATE, WE CAN FIND NO
BASIS FOR SAYING THAT IT IS ENGAGED IN COLLECTING INCOME WITHIN THE
STATE, EITHER AS A BUSINESS OR OTHERWISE. 

THE CONTRACT REQUIREMENT THAT THE EXHIBITOR IS TO SET APART THE
APPELLEE'S PERCENTAGE OF THE GROSS RECEIPTS "IN TRUST" IS A FAMILIAR
DEVICE FOR SECURING PAYMENT TO THE APPELLEE IN THE EVENT OF THE
EXHIBITOR'S FINANCIAL EMBARRASSMENT.  BUT IT DOES NOT MAKE THE
EXHIBITOR APPELLEE'S AGENT, NOR DOES IT DISPENSE IN LAW, MORE THAN IT
HAS IN FACT, WITH THE PERFORMANCE OF THE FORMER'S OBLIGATION TO MAKE
ALL PAYMENTS TO APPELLEE WITHOUT THE STATE.  THE EMPHASIS PLACED BY
SEC. 2 AND ITS VARIOUS SUBSECTIONS ON THE CARRYING ON OF BUSINESS OR
OTHER SPECIFIED ACTIVITIES WITHIN THE STATE AS THE CONDITION OF LAYING
THE TAX, AND THE FACT THAT THE EXHIBITORS' RECEIPTS ARE TAXED IN THEIR
HANDS UNDER SEC. 2(G), LEAD TO THE CONCLUSION THAT THERE WAS NO
LEGISLATIVE PURPOSE IN CASES LIKE THE PRESENT TO TAX GROSS RECEIPTS
APART FROM THE BUSINESS OR ACTIVITY OF COLLECTING THEM, CARRIED ON
WITHIN THE STATE.  WE CANNOT SAY THAT THE COURT BELOW WAS WRONG IN THAT
CONCLUSION.  AFFIRMED. 

FN1  THE SUIT WAS BEGUN BEFORE THE ENACTMENT ON AUGUST 21, 1937, OF
THE AMENDMENT TO SEC. 24 OF THE JUDICIAL CODE, 50 STAT. 738, PROVIDING
THAT "NO DISTRICT COURT SHALL HAVE JURISDICTION OF ANY SUIT TO ENJOIN,
SUSPEND, OR RESTRAIN THE ASSESSMENT, LEVY, OR COLLECTION OF ANY TAX
IMPOSED BY OR PURSUANT TO THE LAWS OF ANY STATE WHERE A PLAIN, SPEEDY,
AND EFFICIENT REMEDY MAY BE HAD AT LAW OR IN EQUITY IN THE COURTS OF
SUCH STATE."  SECTION 2 OF THE ACT EXCLUDES FROM ITS OPERATION SUITS
BEGUN IN THE DISTRICT COURTS BEFORE ITS ENACTMENT. 
..END :
























U.S. V. ALGOMA LUMBER CO., 305 U.S. 415 


NO. 245.  ARGUED DECEMBER 16, 1938.  - DECIDED JANUARY 3, 1939.  - 86
CT. CLS. 226, 188, 171, REVERSED. 


1.  CONTRACTS FOR THE SALE TO A LUMBER COMPANY OF TIMBER ON UNALLOTTED
LAND OF THE KLAMATH INDIAN RESERVATION, EXECUTED BY THE SUPERINTENDENT
OF THE KLAMATH INDIAN SCHOOL FOR AND ON BEHALF OF THE KLAMATH INDIANS,
PURSUANT TO SEC. 7 OF THE ACT OF JUNE 25, 1910 AND UNDER REGULATIONS
AND WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR, THE MONEYS
RECEIVED UNDER THE CONTRACTS BEING DEPOSITED PURSUANT TO STATUTORY
REQUIREMENT IN THE UNITED STATES TREASURY, TO BE HELD AND USED BY THE
SECRETARY FOR THE BENEFIT OF THE INDIANS, HELD NOT CONTRACTS OF THE
UNITED STATES.  A SUIT AGAINST THE UNITED STATES TO RECOVER ALLEGED
OVERPAYMENTS MADE UNDER SUCH CONTRACTS WAS THEREFORE NOT WITHIN THE
JURISDICTION OF THE COURT OF CLAIMS.  P. 421. 

2.  LIKEWISE, CONTRACTS FOR THE SALE ON SIMILAR TERMS OF TIMBER ON
RESTRICTED ALLOTTED LANDS, ENTERED INTO BY INDIVIDUAL ALLOTTEES AS
PRESCRIBED BY SEC. 8 OF THE ACT OF 1910, THE PAYMENTS THEREUNDER BEING
DEPOSITED BY THE SUPERINTENDENT IN PRIVATE STATE BANKS AND CREDITED ON
HIS OWN BOOKS TO THE ALLOTTEES ACCORDING TO THEIR RESPECTIVE INTERESTS,
WERE NOT OBLIGATIONS OF THE UNITED STATES ENFORCEABLE IN THE COURT OF
CLAIMS.  P. 423. 

3.  EXERCISE OF ITS PLENARY POWER TO TAKE APPROPRIATE MEASURES TO
SAFEGUARD THE DISPOSAL OF PROPERTY OF WHICH THE INDIANS ARE THE
SUBSTANTIAL OWNERS, DOES NOT NECESSARILY INVOLVE THE ASSUMPTION OF
CONTRACTUAL OBLIGATIONS BY THE GOVERNMENT.  THEIR ASSUMPTION IS NOT TO
BE PRESUMED IN THE ABSENCE OF ANY ACTION TAKEN BY THE GOVERNMENT OR ON
ITS BEHALF INDICATING SUCH A PURPOSE.  P. 421. 

4. RECEIPT BY THE TREASURY OF THE UNITED STATES, OF PAYMENTS MADE TO
THE SUPERINTENDENT FOR THE USE AND BENEFIT OF THE INDIANS, EVEN THOUGH
PAYMENT WAS MADE UNDER PROTEST, GAVE RISE TO NO CONTRACT FOR REPAYMENT
IMPLIED IN FACT ON THE PART OF THE UNITED STATES, AND DID NOT MAKE SUIT
THEREFOR COGNIZABLE IN THE COURT OF CLAIMS.  P. 423. 

5.  INFIRMITIES, IF ANY, IN THE CONTRACTS OF THE LUMBER COMPANIES
WITH THE INDIANS COULD NOT IMPOSE ON THE UNITED STATES A LIABILITY
WHICH THE CONTRACTS DO NOT PURPORT TO UNDERTAKE IN ITS BEHALF.  P.
423. 

6.  BY THE TREATY WITH THE KLAMATH TRIBE OF FEBRUARY 17, 1870, THE
UNITED STATES ACQUIRED NO BENEFICIAL OWNERSHIP IN THE TRIBAL LANDS OR
THEIR PROCEEDS; AND WHATEVER THE NATURE OF THE LEGAL INTEREST ACQUIRED
BY THE GOVERNMENT AS THE IMPLEMENT OF ITS CONTROL, SUBSTANTIAL
OWNERSHIP REMAINED WITH THE TRIBE AS IT EXISTED BEFORE THE TREATY.  P.
420. 

UNITED STATES V. ALGOMA LUMBER CO.* 

*TOGETHER WITH NO. 246, UNITED STATES V. FOREST LUMBER CO., AND NO.
247, UNITED STATES V. LAMM LUMBER CO., ALSO ON WRITS OF CERTIORARI TO
THE COURT OF CLAIMS. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 583, TO REVIEW JUDGMENTS OF THE COURT OF CLAIMS
IN THREE SUITS AGAINST THE UNITED STATES TO RECOVER THE AMOUNT OF
ALLEGED OVERPAYMENTS MADE UPON CONTRACTS FOR THE SALE OF TIMBER ON
INDIAN LANDS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

DECISION OF THESE CASES TURNS ON THE QUESTION WHETHER CERTAIN
CONTRACTS FOR THE SALE OF TIMBER ON LAND OF THE KLAMATH INDIAN
RESERVATION IN OREGON, EXECUTED BY THE SUPERINTENDENT OF THE KLAMATH
INDIAN SCHOOL BY AUTHORITY OF AN ACT OF CONGRESS, ARE CONTRACTS OF THE
UNITED STATES UPON WHICH SUITS MAY BE MAINTAINED IN THE COURT OF
CLAIMS. 

855, 857, PROVIDES THAT THE "TIMBER ON UNALLOTTED LANDS OF ANY INDIAN
RESERVATION MAY BE SOLD UNDER REGULATIONS TO BE PRESCRIBED BY THE
SECRETARY OF THE INTERIOR, AND THE PROCEEDS FROM SUCH SALES SHALL BE
USED FOR THE BENEFIT OF THE INDIANS OF THE RESERVATION IN SUCH MANNER
AS HE MAY DIRECT."  SECTION 8 OF THE ACT PROVIDES THAT "THE TIMBER ON
ANY INDIAN ALLOTMENT HELD UNDER A TRUST OR OTHER PATENT CONTAINING
RESTRICTIONS ON ALIENATIONS, MAY BE SOLD BY THE ALLOTTEE WITH THE
CONSENT OF THE SECRETARY OF THE INTERIOR AND THE PROCEEDS THEREOF SHALL
BE PAID TO THE ALLOTTEE OR DISPOSED OF FOR HIS BENEFIT UNDER
REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE INTERIOR." 

THE PRESENT SUITS WERE BROUGHT IN THE COURT OF CLAIMS BY RESPONDENTS
AGAINST THE UNITED STATES TO RECOVER ALLEGED OVERPAYMENTS OF AMOUNTS
DUE UPON CONTRACTS FOR THE PURCHASE OF TIMBER UPON CERTAIN UNALLOTTED
AND ALLOTTED INDIAN LANDS IN THE KLAMATH RESERVATION.  THE CONTRACTS
WERE EXECUTED PURSUANT TO SECS. 7 AND 8 OF THE ACT OF 1910 AND
REGULATIONS OF THE SECRETARY OF THE INTERIOR.  THEY PROVIDED THAT THE
PRICES FIXED FOR THE TIMBER TO BE CUT SHOULD BE READJUSTED BY THE
COMMISSIONER OF INDIAN AFFAIRS AT INTERVALS OF THREE YEARS, BUT THAT
PERMITTED INCREASES IN PRICE SHOULD "NOT EXCEED FIFTY PER CENT OF THE
INCREASE IN THE AVERAGE MILL RUN WHOLESALE NET VALUE OF LUMBER  ...
DURING THE THREE YEARS PRECEDING JANUARY 1 OF THE YEAR IN WHICH THE NEW
PRICES ARE FIXED." 

THE COURT OF CLAIMS IN EACH CASE FOUND THAT PRICES FIXED BY THE
INDIAN COMMISSIONER HAD EXCEEDED THE PERMITTED INCREASES AND THAT IN
CONSEQUENCE THERE HAD BEEN AN OVERPAYMENT OF THE AMOUNTS DUE UNDER THE
CONTRACTS.  IT HELD THAT THEY WERE CONTRACTS OF THE UNITED STATES AND
IN EACH CASE GAVE JUDGMENT AGAINST THE GOVERNMENT FOR THE AMOUNT OF THE
OVERPAYMENTS.  ALGOMA LUMBER CO. V. UNITED STATES, 86 CT. CLS. 226;
FOREST LUMBER CO. V. UNITED STATES, 86 CT. CLS. 188; LAMM LUMBER CO. V.
UNITED STATES, 86 CT. CLS. 171.  WE GRANTED CERTIORARI, OCTOBER 10,
1938, THE QUESTIONS INVOLVED BEING OF PUBLIC IMPORTANCE IN THE
ADMINISTRATION BY THE UNITED STATES OF INDIAN LANDS AND IN DEFINING THE
JURISDICTION OF THE COURT OF CLAIMS. 

THE PETITIONS FOR CERTIORARI CHALLENGED THE JURISDICTION OF THE COURT
OF CLAIMS IN TERMS SUFFICIENTLY BROAD TO RAISE THE QUESTION, NOT
CONSIDERED BELOW OR ARGUED HERE, WHETHER, ASSUMING THE CONTRACTS WERE
OBLIGATIONS OF THE UNITED STATES, AS THE COURT BELOW HELD, SUITS TO
RECOVER THE OVERPAYMENTS ARE UPON QUASI CONTRACTS OR CONTRACTS "IMPLIED
IN LAW" NOT WITHIN THE JURISDICTION CONFERRED ON THE COURT OF CLAIMS BY
SEC. 145(1) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 250(1).  FN1 MERRITT
V. UNITED STATES, 267 U.S. 338; UNITED STATES V. MINNESOTA INVESTMENT
CO., 271 U.S. 212; GOODYEAR CO. V. UNITED STATES, 276 U.S. 287.  BUT
THE QUESTION CHIEFLY DISCUSSED IN BRIEF AND ARGUMENT BEFORE US IS
WHETHER THE CONTRACTS IN SUIT ARE OBLIGATIONS OF THE UNITED STATES, SO
AS TO GIVE RISE TO CLAIMS FOUNDED UPON THEM WITHIN THE JURISDICTION OF
THE COURT OF CLAIMS.  AS DETERMINATION OF THIS QUESTION IS DECISIVE OF
THE CASE, WE DO NOT CONSIDER WHETHER, EVEN IF THE CONTRACTS WERE
OBLIGATIONS OF THE UNITED STATES, THE CLAIMS ARE FOR THE RECOVERY OF
UNJUST ENRICHMENT UPON CONTRACTS "IMPLIED IN LAW" NOT WITHIN THE
JURISDICTION OF THE COURT. 

FOR PURPOSES OF DECISION THE CONTRACTS IN NO. 245, UNITED STATES V.
ALGOMA LUMBER CO., MAY BE TAKEN AS TYPICAL OF THOSE IN THE OTHER
CASES.  PURSUANT TO SECS. 7 AND 8 OF THE ACT OF 1910 AND REGULATIONS OF
THE SECRETARY OF THE INTERIOR ADOPTED JUNE 29, 1911, TIMBER UPON
DESIGNATED LANDS WITHIN THE KLAMATH RESERVATION WAS OFFERED FOR SALE. 
BIDS SUBMITTED BY RESPONDENT, ALGOMA COMPANY, WERE ACCEPTED, AND ON
JULY 28, 1917, THE CONTRACT OF SALE WAS EXECUTED BY THE COMPANY AND BY
THE SUPERINTENDENT OF THE KLAMATH INDIAN SCHOOL, PURSUANT TO
DEPARTMENTAL REGULATIONS, AND WAS APPROVED BY THE ASSISTANT SECRETARY
OF THE INTERIOR ON SEPTEMBER 14, 1917. 

THE AREA DESIGNATED EMBRACED APPROXIMATELY 15,700 ACRES, ALL OF WHICH
WERE UNALLOTTED EXCEPT 2,240 ACRES OF ALLOTTED LANDS.  THE CONTRACT
PROVIDED FOR THE SALE OF THE TIMBER ON THE UNALLOTTED LANDS UPON TERMS
AND CONDITIONS NOT NOW MATERIAL.  IT REQUIRED THAT THE PURCHASE MONEY
BE PAID TO THE SUPERINTENDENT "FOR THE USE AND BENEFIT OF THE KLAMATH
TRIBE," AND THAT THE ALGOMA COMPANY ENTER INTO SEPARATE CONTRACTS WITH
THE INDIVIDUAL INDIAN ALLOTTEES WHO DESIRED TO SELL THE TIMBER STANDING
ON THEIR ALLOTMENTS.  IN CARRYING OUT THE PROVISIONS OF THE CONTRACT
THE ALGOMA COMPANY, WITH THE APPROVAL OF THE SECRETARY, ENTERED INTO
SEPARATE CONTRACTS WITH TWENTY-ONE INDIVIDUAL ALLOTTEES FOR PURCHASE OF
THE TIMBER ON THEIR ALLOTMENTS UPON TERMS SIMILAR TO THOSE OF THE
CONTRACT FOR THE PURCHASE OF TIMBER ON THE UNALLOTTED LANDS. 

AS REQUIRED BY THE CONTRACTS, THE PURCHASE PAYMENTS BY THE ALGOMA
COMPANY, INCLUDING THE ALLEGED OVERPAYMENTS, WERE MADE TO THE
SUPERINTENDENT FOR THE BENEFIT OF THE INDIANS.  PURSUANT TO THE ACT OF
MARCH 3, 1883, 22 STAT. 582, 590, AS AMENDED MAY 17, 1926, 44 STAT.
560, ALL MONEYS RECEIVED FROM THE UNALLOTTED LANDS, LESS EXPENSES, WERE
DEPOSITED BY THE SUPERINTENDENT IN THE TREASURY OF THE UNITED STATES IN
AN ACCOUNT DESIGNATED "INDIAN MONEYS, PROCEEDS OF LABOR."  PAYMENTS FOR
TIMBER ON THE ALLOTTED LANDS, LESS EXPENSES, WERE DEPOSITED BY THE
SUPERINTENDENT IN PRIVATE STATE BANKS AND CREDITED ON HIS OWN BOOKS TO
THE ALLOTTEES ACCORDING TO THEIR RESPECTIVE INTERESTS.  ACT OF JULY 1,
1898, 30 STAT. 571, 595; ACT OF APRIL 30, 1908, 35 STAT. 70, 73; ACT OF
JUNE 25, 1910, 36 STAT. 855, 856.  ALL THE PROCEEDS OF SALE ARE
REQUIRED TO BE HELD AND USED BY THE SECRETARY FOR THE BENEFIT OF THE
INDIANS.  ACT OF MARCH 2, 1887, 24 STAT. 449, 463; ACT OF MAY 18, 1916,
39 STAT. 123, 158; ACT OF MAR. 2, 1907, 34 STAT. 1221; ACT OF MAY 25,
1918, 40 STAT. 561, 591. 

THE KLAMATH RESERVATION WAS SET APART AS TRIBAL LANDS UNDER THE
TREATY WITH THE KLAMATH TRIBE OF FEBRUARY 17, 1870, 16 STAT. 707, FROM
LANDS IMMEMORIALLY POSSESSED BY THEM.  SEE UNITED STATES V. KLAMATH
INDIANS, 304 U.S. 119, 121.  UNDER THE PROVISIONS OF THE TREATY AND
ESTABLISHED PRINCIPLES APPLICABLE TO LAND RESERVATIONS CREATED FOR THE
BENEFIT OF THE INDIAN TRIBES, THE INDIANS ARE BENEFICIAL OWNERS OF THE
LAND AND THE TIMBER STANDING UPON IT AND OF THE PROCEEDS OF THEIR SALE,
SUBJECT TO THE PLENARY POWER OF CONTROL BY THE UNITED STATES, TO BE
EXERCISED FOR THE BENEFIT AND PROTECTION OF THE INDIANS.  UNITED STATES
V. KLAMATH INDIANS, 304 U.S. 119; CF. UNITED STATES V. CANDELARIA, 271
U.S. 432; MOTT V. UNITED STATES, 283 U.S. 747; CHIPPEWA INDIANS V.
UNITED STATES, 301 U.S. 358, 375; UNITED STATES V. SHOSHONE TRIBE, 304
U.S. 111, 116.  THE UNITED STATES ACQUIRED NO BENEFICIAL OWNERSHIP IN
THE TRIBAL LANDS OR THEIR PROCEEDS, AND HOWEVER WE MAY DEFINE THE
NATURE OF THE LEGAL INTEREST ACQUIRED BY THE GOVERNMENT AS THE
IMPLEMENT OF ITS CONTROL, SUBSTANTIAL OWNERSHIP REMAINED WITH THE TRIBE
AS IT EXISTED BEFORE THE TREATY.  UNITED STATES V. SHOSHONE TRIBE,
SUPRA, 116. 

THE ACTION OF CONGRESS IN AUTHORIZING THE SALE OF THE TIMBER, AND THE
CONTRACTS PRESCRIBED UNDER ITS AUTHORITY BY DEPARTMENTAL REGULATIONS
AND APPROVED BY THE SECRETARY, ARE TO BE VIEWED AS THE MEANS CHOSEN FOR
THE EXERCISE OF THE POWER OF THE GOVERNMENT TO PROTECT THE RIGHTS AND
BENEFICIAL OWNERSHIP OF THE INDIANS.  THE MEANS ARE ADAPTED TO THAT
END.  NEITHER THE UNITED STATES NOR ANY OFFICER PURPORTING TO ACT ON
ITS BEHALF IS NAMED A PARTY TO THE CONTRACT.  BY ITS TERMS THE CONTRACT
IS DECLARED TO BE ENTERED INTO "BETWEEN THE SUPERINTENDENT OF THE
KLAMATH INDIAN SCHOOL, FOR AND ON BEHALF OF THE KLAMATH INDIANS, PARTY
OF THE FIRST PART" AND THE LUMBER COMPANY, "PARTY OF THE SECOND PART." 
IT IS THUS ON ITS FACE THE CONTRACT OF THE KLAMATH INDIANS EXECUTED BY
THE SUPERINTENDENT, ACTING AS THEIR AGENT.  THE FORM OF THE CONTRACT
AND THE PROCEDURE PRESCRIBED FOR ITS EXECUTION AND APPROVAL CONFORM TO
THE LONG-ESTABLISHED RELATIONSHIP BETWEEN THE GOVERNMENT AND THE
INDIANS, UNDER WHICH THE GOVERNMENT HAS PLENARY POWER TO TAKE
APPROPRIATE MEASURES TO SAFEGUARD THE DISPOSAL OF PROPERTY OF WHICH THE
INDIANS ARE THE SUBSTANTIAL OWNERS.  EXERCISE OF THAT POWER DOES NOT
NECESSARILY INVOLVE THE ASSUMPTION OF CONTRACTUAL OBLIGATIONS BY THE
GOVERNMENT.  THEIR ASSUMPTION IS NOT TO BE PRESUMED IN THE ABSENCE OF
ANY ACTION TAKEN BY THE GOVERNMENT OR ON ITS BEHALF INDICATING SUCH A
PURPOSE.  SEE IN RE SANBORN, 148 U.S. 222, 227; TURNER V. UNITED
STATES, 248 U.S. 354, 359.  IN THIS, AS IN ANY OTHER CASE OF A WRITTEN
CONTRACT, THOSE WHO ARE PARTIES TO AND BOUND BY IT ARE TO BE
ASCERTAINED BY AN INSPECTION OF THE DOCUMENT, AND ITS PROVISIONS ARE
CONTROLLING IN THE ABSENCE OF SOME POSITIVE RULE OF LAW OR PROVISION OF
STATUTE REQUIRING THEM TO BE DISREGARDED. 

RESPONDENTS POINT ONLY TO SEC. 7 OF THE ACT OF 1910 AND THE
REGULATIONS PRESCRIBED UNDER IT AS COMPELLING A DIFFERENT RESULT.  THEY
ARGUE THAT THE REQUIREMENTS THAT THE MANNER OF SALE BE PRESCRIBED BY
THE SECRETARY, THAT THE CONTRACTS BE EXECUTED BY THE SUPERINTENDENT AND
APPROVED BY THE SECRETARY, AND THAT THE PRICES OF LUMBER BE FIXED BY
THE INDIAN COMMISSIONER, INDICATE A PURPOSE TO MAKE THE UNITED STATES,
ACTING AS GUARDIAN OR TRUSTEE OF THE INDIANS THROUGH THE SECRETARY AND
SUPERINTENDENT, THE CONTRACTING PARTY.  BUT, AS WE HAVE SAID, ALL THAT
WAS DONE BY THE GOVERNMENT OFFICIALS IN SUPERVISING THE EXECUTION OF
THE CONTRACTS AND THEIR PERFORMANCE WAS CONSISTENT WITH THE EXERCISE OF
ITS FUNCTION AS PROTECTOR OF THE INDIANS WITHOUT THE ASSUMPTION BY THE
UNITED STATES OF ANY OBLIGATION TO THE PURCHASERS OF THE TIMBER, AND NO
IMPLIED OBLIGATION ON ITS PART ARISES FROM THE PERFORMANCE OF THAT
FUNCTION. 

BEFORE THE ACT OF 1910, THE ACT OF FEBRUARY 16, 1889, 25 STAT. 673,
HAD GIVEN THE PRESIDENT AUTHORITY, FROM YEAR TO YEAR, UNDER SUCH
REGULATIONS AS HE MIGHT PRESCRIBE, TO AUTHORIZE THE INDIANS ON
RESERVATIONS OR ALLOTMENTS TO SELL DEAD TIMBER, STANDING OR FALLEN, ON
SUCH RESERVATIONS.  THE CONTRACTS AUTHORIZED WERE TO BE THOSE OF THE
INDIANS AND NOT OF THE UNITED STATES.  SEE PINE RIVER LOGGING CO. V.
UNITED STATES, 186 U.S. 279.  FN2 

THE ACT OF 1910 ENLARGED THE AUTHORITY CONFERRED BY THE EARLIER ACT
SO AS TO PERMIT THE SALE OF LIVING TIMBER ON THE RESERVATIONS UNDER
REGULATIONS PRESCRIBED BY THE SECRETARY OF THE INTERIOR.  IT DID NOT
COMMAND DEPARTURE FROM THE EARLIER PRACTICE OF SELLING THE TIMBER BY
CONTRACTS ENTERED INTO BETWEEN THE INDIANS AND THE PURCHASERS, AND IT
SEEMS CLEAR THAT IN PRESCRIBING THAT THE CONTRACTS BE ENTERED INTO WITH
THE INDIANS THE SECRETARY ADHERED TO THIS PRACTICE, BUT WITH THE ADDED
SAFEGUARD THAT THE CONTRACTS WERE TO BE EFFECTED FOR THEM THROUGH THE
AGENCY OF THE SUPERINTENDENT WHO, FOR MANY PURPOSES, ACTS AS THE AGENT
OF THE INDIANS.  SEE UNITED STATES V. SINNOTT, 26 F. 84, 86; CF. PARKS
V. ROSS, 11 HOW.  362, 374. 

WE DO NOT STOP TO INQUIRE WHETHER THE GOVERNMENT COULD CONFER
AUTHORITY UPON HIM TO EXECUTE CONTRACTS BINDING UPON THE INDIANS, OR
WHETHER THE ACT OF 1910 DISPENSED WITH THE FORMALITIES REQUIRED OF
CONTRACTS WITH THE INDIANS BY R.S. SEC. 2103, 25 U.S.C. SEC. 81,
OMITTED IN THE CASE OF THE PRESENT CONTRACTS.  SEE GREEN V. MENOMINEE
TRIBE, 233 U.S. 558.  INFIRMITIES, IF ANY, IN RESPONDENTS' CONTRACTS
WITH THE INDIANS COULD NOT IMPOSE ON THE UNITED STATES A LIABILITY
WHICH THE CONTRACTS DO NOT PURPORT TO UNDERTAKE IN ITS BEHALF. 

AS THE COURT OF CLAIMS FOUND THAT THE CONTRACTS FOR THE SALE OF
TIMBER ON ALLOTTED LANDS WERE ENTERED INTO BY INDIVIDUAL ALLOTTEES AS
PRESCRIBED BY SEC. 8 OF THE ACT OF 1910, THEY STAND ON NO DIFFERENT
FOOTING, AS OBLIGATIONS OF THE UNITED STATES, FROM THE TRIBAL CONTRACT
OR SIMILAR CONTRACTS ENTERED INTO UNDER THE ACT OF 1889. 

SINCE NONE OF THE CONTRACTS IN SUIT WERE CONTRACTS OR OBLIGATIONS OF
THE UNITED STATES, IT IS PLAIN THAT RECEIPT, BY THE TREASURY OF THE
UNITED STATES, OF PAYMENTS MADE UNDER THEM TO THE SUPERINTENDENT FOR
"THE USE AND BENEFIT" OF THE INDIANS, EVEN THOUGH MADE UNDER PROTEST,
GAVE RISE TO NO CONTRACT FOR REPAYMENT IMPLIED IN FACT ON THE PART OF
THE UNITED STATES, AND THAT THE CAUSE OF ACTION, IF ANY, IS NOT WITHIN
THE JURISDICTION OF THE COURT OF CLAIMS.  MERRITT V. UNITED STATES,
SUPRA; UNITED STATES V. MINNESOTA INVESTMENT CO., SUPRA; GOODYEAR CO.
V. UNITED STATES, SUPRA.  REVERSED.    FN1  "  ...  THE COURT OF CLAIMS
SHALL HAVE JURISDICTION TO HEAR AND DETERMINE THE FOLLOWING MATTERS: 

"FIRST.  ALL CLAIMS FOUNDED UPON  ...  ANY CONTRACT, EXPRESS OR
IMPLIED, WITH THE GOVERNMENT OF THE UNITED STATES  ...  " 

FN2  IN SOME INSTANCES CONGRESS HAS PASSED SPECIAL ACTS CONFERRING
JURISDICTION ON THE COURT OF CLAIMS TO ENTERTAIN SUITS BROUGHT AGAINST
THE INDIANS ON THEIR CONTRACTS.  35 STAT. 444; 36 STAT. 287; SEE GREEN
V. MENOMINEE TRIBE, 233 U.S. 558; CF. 26 STAT. 636; 27 STAT. 86; 35
STAT. 457; 36 STAT. 287. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :







SOCONY-VACUUM CO. V. SMITH, 305 U.S. 424 


NO. 195.  ARGUED DECEMBER 15, 1938.  - DECIDED JANUARY 3, 1939.  - 96
F.2D 98, AFFIRMED. 


1.  ASSUMPTION OF RISK IS NOT A DEFENSE IN A SUIT BROUGHT BY A SEAMAN
UNDER THE JONES ACT TO RECOVER FOR INJURIES RESULTING FROM HIS USE,
WHILE ON DUTY, OF A DEFECTIVE APPLIANCE OF THE SHIP, WHEN HE CHOSE TO
USE THE UNSAFE APPLIANCE, KNOWING IT UNSAFE, INSTEAD OF A SAFE METHOD
OF DOING HIS WORK, WHICH WAS KNOWN TO HIM.  P. 428. 

2.  IN SUCH CASES THE ADMIRALTY RULE OF COMPARATIVE NEGLIGENCE
APPLIES, IN MITIGATION OF DAMAGES.  P. 431. 

SOCONY-VACUUM OIL CO. V. SMITH. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 586, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED BY THE PRESENT RESPONDENT, A SEAMAN, IN AN ACTION FOR
PERSONAL INJURIES BROUGHT UNDER THE JONES ACT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER ASSUMPTION OF RISK IS A DEFENSE IN A SUIT
BROUGHT BY A SEAMAN UNDER THE JONES ACT TO RECOVER FOR INJURIES
RESULTING FROM HIS USE, WHILE ON DUTY, OF A DEFECTIVE APPLIANCE OF THE
SHIP, WHEN HE CHOSE TO USE THE UNSAFE APPLIANCE INSTEAD OF A SAFE
METHOD OF DOING HIS WORK, WHICH WAS KNOWN TO HIM. 

RESPONDENT, A SEAMAN, BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT
FOR SOUTHERN NEW YORK TO RECOVER, UNDER THE JONES ACT, 41 STAT. 1007,
46 U.S.C. SEC. 688, FOR AN INJURY RECEIVED FROM A FALL IN THE ENGINE
ROOM OF PETITIONER'S VESSEL.  THE FALL WAS CAUSED BY A DEFECTIVE STEP
ON WHICH RESPONDENT STOOD WHILE ON DUTY, WHEN SEEKING TO LEARN, BY
TOUCHING WITH HIS FINGER, WHETHER AN ENGINE BEARING WAS OVERHEATED. 

IN SUBMITTING THE CASE TO THE JURY THE TRIAL COURT APPLIED THE
ADMIRALTY RULE OF COMPARATIVE NEGLIGENCE, INSTRUCTING THE JURY THAT
NEGLIGENCE OF RESPONDENT CONTRIBUTING TO THE ACCIDENT WAS NOT A BAR TO
RECOVERY BUT WAS TO BE CONSIDERED IN MITIGATION OF DAMAGES.  THE COURT
REFUSED PETITIONER'S REQUEST FOR AN INSTRUCTION THAT IF RESPONDENT
COULD HAVE PERFORMED HIS DUTY WITHOUT USE OF THE DEFECTIVE STEP, HE
ASSUMED THE RISK OF INJURY FROM IT.  INSTEAD, THE COURT CHARGED THAT
THERE WAS NO ASSUMPTION OF RISK BY THE SEAMAN WHERE THE SHIPOWNER
FAILED IN ITS DUTY TO FURNISH A SAFE APPLIANCE. 

JUDGMENT OF THE DISTRICT COURT, UPON A VERDICT IN RESPONDENT'S FAVOR,
WAS AFFIRMED BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT, 96 F.2D
98, ON AUTHORITY OF THE ARIZONA V. ANELICH, 298 U.S. 110, AND BEADLE V.
SPENCER, 298 U.S. 124.  THE COURT'S DECISION WAS PREDICATED UPON ITS
CONCLUSION THAT RESPONDENT HAD FREE CHOICE OF A WAY TO REACH AND TOUCH
THE BEARING, WITHOUT STANDING ON THE DEFECTIVE STEP, AND IT HELD THAT
IN THE CIRCUMSTANCES, AND SINCE THE SEAMAN HAD NOT USED THE DEFECTIVE
APPLIANCE CONTRARY TO ORDERS, THE TRIAL JUDGE HAD CORRECTLY INSTRUCTED
THE JURY THAT ASSUMPTION OF RISK WAS NOT A BAR TO RERECOVERY.  WE
GRANTED CERTIORARI, OCTOBER 10, 1938, UPON A PETITION ASKING US TO
REVIEW THIS RULING IN THE LIGHT OF OUR DECISIONS IN THE ARIZONA AND THE
BEADLE CASES, SUPRA, THE QUESTION BEING ONE OF PUBLIC IMPORTANCE IN THE
APPLICATION OF THE MARITIME LAW AS SUPPLEMENTED BY THE JONES ACT. 

A PRELIMINARY POINT, MUCH DISCUSSED IN BRIEF AND ARGUMENT HERE, IS
WHETHER THE QUESTION RULED UPON BELOW IS PRESENTED BY THE RECORD. 
RESPONDENT INSISTS THAT THERE WAS NO EVIDENCE FROM WHICH THE JURY COULD
CONCLUDE THAT THERE WAS A SAFE METHOD KNOWN TO HIM BY WHICH HE COULD
HAVE REACHED THE BEARING WITHOUT USING THE DEFECTIVE STEP AND THAT HE
CHOSE THE UNSAFE INSTEAD OF THE SAFE METHOD. 

RESPONDENT WAS EMPLOYED AS AN OILER IN PETITIONER'S ENGINE ROOM.  IT
WAS HIS DUTY WHILE THE VESSEL WAS UNDER WAY TO TOUCH WITH HIS FINGER,
AT INTERVALS OF TWENTY MINUTES, A BEARING OF THE PROPELLER SHAFT, IN
ORDER TO ASCERTAIN WHETHER IT WAS OVERHEATING AND IN NEED OF ADDITIONAL
LUBRICATION.  DIRECTLY IN FRONT OF THE BEARING, AS HE APPROACHED IT,
WAS AN IRON STEP, LOCATED ABOUT ONE FOOT ABOVE THE ENGINE ROOM FLOOR
AND BOLTED TO THE BEDPLATE WHICH SUPPORTED THE BEARING.  RESPONDENT
TESTIFIED THAT THE STEP WAS BRACED ON ITS UNDERSIDE BY A BRACKET OR
STRUT, AND THAT ABOUT TWO OR THREE WEEKS BEFORE THE ACCIDENT HE HAD
OBSERVED THAT THE BRACKET WAS LOOSE AND OUT OF PLACE AND HAD REPORTED
THE FACT TO A SUPERIOR OFFICER. 

RESPONDENT ALSO GAVE THE ONLY ACCOUNT OF WHAT OCCURRED AT THE TIME OF
THE ACCIDENT.  HE TESTIFIED THAT IN ORDER TO REACH THE BEARING IT WAS
NECESSARY FOR HIM AND WAS HIS UNIFORM PRACTICE TO STAND WITH HIS RIGHT
FOOT UPON THE STEP WITH HIS LEFT ADVANCED AND PLACED UPON THE BEDPLATE,
AND WITH HIS LEFT HAND HOLDING, FOR SUPPORT, THE UPPER EDGE OF AN
ADJACENT VERTICAL SLUSH PAN; THAT, STANDING IN THIS POSITION, HE PLACED
HIS RIGHT HAND IN A HOLE EXTENDING DOWNWARD THROUGH THE BEARING CAP A
DISTANCE OF EIGHT OR TEN INCHES, WHERE HE TOUCHED THE SHAFT AND THE
ADJOINING BEARING TO DISCOVER WHETHER THEY WERE OVER-HEATED AND TO
INSPECT THE OIL WHICH STUCK TO HIS FINGERS AND WHICH, IF DISCOLORED,
WOULD INDICATE THAT THE JOURNAL WAS BEGINNING TO GRIPE BECAUSE OF
EXCESSIVE FRICTION; THAT AS HE STEPPED DOWN HIS LEFT FOOT STRUCK THE
LOOSE BRACKET, WHICH HAD PROJECTED BEYOND THE EDGE OF THE STEP, CAUSING
HIM TO FALL AND SUFFER THE INJURIES COMPLAINED OF. THERE WAS TESTIMONY
BY PETITIONER'S WITNESSES, ALL DENIED BY RESPONDENT, FROM WHICH THE
JURY COULD HAVE FOUND THAT IT WAS POSSIBLE FOR RESPONDENT TO HAVE
REACHED THE BEARING WHILE STANDING ON THE FLOOR, WITHOUT THE USE OF THE
DEFECTIVE STEP, BY SEIZING WITH HIS RIGHT HAND A GRAB IRON LOCATED ON A
NEARBY COLUMN AND REACHING WITH HIS LEFT HAND TO TOUCH THE LEFT END OF
THE BEARING, WHICH EXTENDED THROUGH THE BEDPLATE; THAT THIS WAS THE
USUAL AND ONLY APPROPRIATE WAY TO EXAMINE THE BEARING, AND THAT
RESPONDENT HAD BEEN SEEN TO REACH IT IN THAT MANNER.  THERE WAS ALSO
TESTIMONY THAT OTHER OILERS HAD TOUCHED THE BEARING WITHOUT USING THE
STEP WHILE STANDING ON THE FLOOR, WITH RIGHT HAND GRASPING THE UPPER
EDGE OF THE VERTICAL CRANK-PIT GUARD, WHICH WAS ADJACENT ON THE RIGHT
AND NEARER TO THE BEARING THAN THE GRAB IRON.  THERE WAS EVIDENCE OF
THE RELATIVE LOCALITIES OF THE SEVERAL PARTS OF THE STRUCTURE MENTIONED
AND OF THE DISTANCES BETWEEN THEM, INDICATING THAT RESPONDENT COULD
HAVE REACHED THE BEARING, EITHER AT ITS LEFT END OR THROUGH THE HOLE IN
THE BEARING CAP, WHILE STANDING ON THE ENGINE ROOM FLOOR AND WITHOUT
USING THE STEP. 

WE MUST ACCEPT THE VERDICT AS ESTABLISHING THE NEGLIGENT FAILURE OF
PETITIONER TO FURNISH A SAFE APPLIANCE, THE IRON STEP, AND THAT THE
PLAINTIFF KNEW THAT IT WAS DEFECTIVE AT THE TIME OF THE ACCIDENT, FOR
THE ONLY EVIDENCE OF ANY BREACH OF DUTY BY PETITIONER WAS RESPONDENT'S
TESTIMONY THAT HE KNEW OF THE DEFECT AND HAD REPORTED IT TO THE FIRST
ASSISTANT ENGINEER TWO OR THREE WEEKS BEFORE THE ACCIDENT.  UPON ALL
THE EVIDENCE IT WAS FOR THE JURY TO SAY WHETHER RESPONDENT WAS AWARE
THAT IN REACHING THE BEARING WITH ONE HAND, EITHER AT ITS END OR
THROUGH THE HOLE IN THE BEARING CAP, HE COULD AVOID THE USE OF THE
DEFECTIVE STEP BY STANDING ON THE ENGINE ROOM FLOOR AND STEADYING
HIMSELF BY SEIZING WITH HIS RIGHT HAND THE GRAB IRON OR THE CRANK-PIT
GUARD ON HIS RIGHT, OR BY PLACING HIS LEFT HAND ON THE EDGE OF THE
SLUSH PAN. 

NO SPECIFIC INSTRUCTION WAS ASKED OR GIVEN AS TO WHAT THE VERDICT
SHOULD BE IF THE JURY CONCLUDED THAT RESPONDENT HAD KNOWINGLY MADE SUCH
AN ELECTION.  INSTEAD, THE COURT CHARGED GENERALLY "THAT THE SHIP OWNER
IS UNDER A DUTY TO FURNISH THE SEAMAN WITH A SAFE PLACE IN WHICH TO
WORK" AND "THERE IS NO CONTRIBUTORY NEGLIGENCE OR ASSUMPTION OF RISK ON
THE PART OF A PLAINTIFF IN SO FAR AS THE DEFENDANT FAILS IN THESE
DUTIES."  CONSEQUENTLY, THERE IS NO BASIS FOR DISTURBING THE JUDGMENT
UNLESS THIS CHARGE IS ERRONEOUS AS APPLIED TO THE EVIDENCE TAKEN MOST
FAVORABLY TO PETITIONER. 

THE QUESTION WHETHER ASSUMPTION OF RISK IS A BAR TO A SUIT BY A
SEAMAN TO RECOVER UNDER THE JONES ACT FOR INJURIES CAUSED BY A
DEFECTIVE APPLIANCE, WHEN HE HAS A FREE CHOICE TO AVOID THE USE OF IT,
IS A NOVEL ONE IN THIS COURT.  NO SUCH CHOICE WAS INVOLVED IN THE
ARIZONA OR BEADLE CASES.  THERE ASSUMPTION OF RISK BY THE SEAMAN, WHICH
WOULD HAVE BARRED RECOVERY AT COMMON LAW, WAS CONCEDEDLY NOT A DEFENSE
UNDER THE ADMIRALTY RULE.  THE DECISION WAS THAT THE JONES ACT, IN
EXTENDING TO SEAMEN ALL THE RIGHTS TO RECOVER FOR INJURIES RESULTING
FROM DEFECTIVE APPLIANCES GIVEN TO RAILWAY EMPLOYEES BY THE FEDERAL
EMPLOYERS' LIABILITY ACT, 35 STAT. 65, 45 U.S.C. SEC. 51, HAD LEFT
UNDISTURBED THE ADMIRALTY RULE WITH RESPECT TO ASSUMPTION OF RISK.  IN
HOLDING THAT THE RULE HAD NOT BEEN CHANGED, WE DID NOT CONSIDER THE
QUESTION NOW PRESENTED WHETHER, WITHIN THAT RULE, ASSUMPTION OF RISK IS
A DEFENSE WHERE THE SEAMAN COULD HAVE AVOIDED THE USE OF THE UNSAFE
APPLIANCE BY THE FREE CHOICE OF A SAFE ONE. 

BEFORE THE JONES ACT A SEAMAN WAS ENTITLED TO RECOVER, FROM A VESSEL
OR ITS OWNER, INDEMNITY FOR INJURIES DUE TO AN UNSEAWORTHY VESSEL, OR
FOR "FAILURE TO SUPPLY AND TO KEEP IN ORDER THE PROPER APPLIANCES
APPURTENANT TO THE SHIP."  THE OSCEOLA, 189 U.S. 158, 175; THE ARIZONA
V. ANELICH, SUPRA, 120 ET SEQ. CONTRIBUTORY NEGLIGENCE, THEN AS NOW,
WAS NOT A DEFENSE IN SUITS BROUGHT BY SEAMEN TO RECOVER FOR INJURIES
ATTRIBUTABLE TO DEFECTIVE EQUIPMENT, BUT WAS GROUND ONLY FOR MITIGATION
OF DAMAGES.  SEE THE MAX MORRIS, 137 U.S. 1; THE ARIZONA V. ANELICH,
SUPRA, 122, AND CASES CITED.  AND NO AMERICAN CASE APPEARS TO HAVE
RECOGNIZED ASSUMPTION OF RISK AS A DEFENSE TO SUCH A SUIT.  IN NUMEROUS
CASES THIS DEFENSE WAS EITHER DENIED OR IGNORED IN CIRCUMSTANCES
PLAINLY CALLING FOR ITS APPLICATION HAD IT BEEN AVAILABLE.  HALVERSON
V. NISEN, FED. CAS. NO. 5,970; 3 SAWY.  562; THE EDITH GODDEN (D.C.),
23 F. 43; THE NODDLEBURN (D.C.), 28 F. 855; OLSON V. FLAVEL (D.C.), 34
F. 477; THE A. HEATON (C.C.), 43 F. 592; THE JULIA FOWLER (D.C.), 49 F.
277; LAFOURCHE PACKET CO. V. HENDERSON (C.C.A.), 94 F. 871; THE
FULLERTON, 167 F. 1; GLOBE S.S. CO. V. MOSS, 245 F. 54; THE COLUSA
(C.C.A.), 248 F. 21; CRICKET S.S. CO. V. PARRY, 263 F. 523; STORGARD V.
FRANCE & CANADA S.S. CORP. 263 F. 545. 

IN SOME OF THESE CASES THE SEAMAN HAD VOLUNTARILY SHIPPED ON A VESSEL
WHICH HE KNEW TO BE UNSEAWORTHY, CRICKET S.S. CO. V. PARRY, SUPRA; SEE
SCHEFFLER V. MORAN TOWING & TRANSPORTATION CO., 68 F.2D 11, 12.  IN
OTHERS IT WAS APPARENT THAT THE SEAMAN HAD CHOSEN TO EXPOSE HIMSELF TO
THE DANGERS OF UNSAFE APPLIANCES WHEN THERE WAS A SAFE ALTERNATIVE. 
THE JULIA FOWLER, SUPRA; OLSON V. FLAVEL, SUPRA. 

IN SOME CASES ARISING AFTER THE JONES ACT WHERE THE DEFENSE WAS
ALLOWED, THE EMPLOYEE WAS THOUGHT TO HAVE HAD THE STATUS OF A STEVEDORE
OR SHORE WORKER AND NOT THAT OF A SEAMAN.  THE MAHARAJAH, 40 F. 784;
CUNARD S.S. CO. V. SMITH, 255 F. 846; HARDIE V. NEW YORK HARBOR DRY
DOCK CORP., 9 F.2D 545; SKOLAR V. LEHIGH VALLEY R. CO., 60 F.2D 893;
SCHEFFLER V. MORAN TOWING & TRANSPORTATION CO., SUPRA, 12; YACONI V.
BRADY & GIOE, INC., 246 N.Y. 300, 306; 158 N.E. 876.  IN JOHNSON V.
UNITED STATES, 74 F.2D 703, THE SEAMAN HAD MADE HIS CHOICE IN
DISOBEDIENCE OF ORDERS, AND IN ANOTHER WHERE THE DEFENSE WAS ALLOWED
THE SEAMAN, WHILE NOT ON DUTY, THOUGH IN THE COURSE OF HIS EMPLOYMENT,
HAD CHOSEN TO GO INTO AN UNSAFE PART OF THE VESSEL, KNOWING THAT THERE
WAS AN ALTERNATIVE.  HOLM V. CITIES SERVICE CO., 60 F.2D 721.  FN1 

HERE RESPONDENT WAS A SEAMAN; HE WAS ON DUTY WHEN INJURED; AND THERE
WAS NO EVIDENCE THAT HE ACTED IN DISOBEDIENCE OF ORDERS.  IN THE
ABSENCE OF ANY CONTROLLING OR PERSUASIVE AUTHORITY WE LOOK TO THE
REASON OF THE ADMIRALTY RULE OF ASSUMPTION OF RISK IN ORDER TO
ASCERTAIN ITS APPROPRIATE LIMITS.  MANY CONSIDERATIONS WHICH APPLY TO
THE LIABILITY OF A VESSEL OR ITS OWNER TO A SEAMAN FOR THE FAILURE TO
PROVIDE SAFE APPLIANCES AND A SAFE PLACE TO WORK ARE ABSENT OR ARE OF
LITTLE WEIGHT IN THE CIRCUMSTANCES WHICH ATTEND SHORE EMPLOYMENT, IN
RELATION TO WHICH THE COMMON LAW RULES OF ASSUMPTION OF RISK AND
CONTRIBUTORY NEGLIGENCE HAVE BEEN DEVELOPED. 

THE SEAMAN, WHILE ON HIS VESSEL, IS SUBJECT TO THE RIGOROUS
DISCIPLINE OF THE SEA AND HAS LITTLE OPPORTUNITY TO APPEAL TO THE
PROTECTION FROM ABUSE OF POWER WHICH THE LAW MAKES READILY AVAILABLE TO
THE LANDSMAN.  HIS COMPLAINTS TO SUPERIOR OFFICERS OF UNSAFE WORKING
CONDITIONS NOT INFREQUENTLY PROVOKE HARSH TREATMENT.  HE CANNOT LEAVE
THE VESSEL WHILE AT SEA.  ABANDONMENT OF IT IN PORT BEFORE HIS
DISCHARGE, TO AVOID UNNECESSARY DANGERS OF EMPLOYMENT, EXPOSES HIM TO
THE RISK OF LOSS OF PAY AND TO THE PENALTIES FOR DESERTION.  FN2  IN
THE PERFORMANCE OF DUTY HE IS OFTEN UNDER THE NECESSITY OF MAKING QUICK
DECISIONS WITH LITTLE OPPORTUNITY OR CAPACITY TO APPRAISE THE RELATIVE
SAFETY OF ALTERNATIVE COURSES OF ACTION.  WITHAL, SEAMEN ARE THE WARDS
OF THE ADMIRALTY, WHOSE TRADITIONAL POLICY IT HAS BEEN TO AVOID, WITHIN
REASONABLE LIMITS, THE APPLICATION OF RULES OF THE COMMON LAW WHICH
WOULD AFFECT THEM HARSHLY BECAUSE OF THE SPECIAL CIRCUMSTANCES
ATTENDING THEIR CALLING.  THE ARIZONA V. ANELICH, SUPRA, 123, AND CASES
CITED; CALMAR STEAMSHIP CORP. V. TAYLOR, 303 U.S. 525.  IT IS FOR THIS
REASON THAT REMEDIAL LEGISLATION FOR THE BENEFIT AND PROTECTION OF
SEAMEN HAS BEEN LIBERALLY CONSTRUED TO ATTAIN THAT END.  CHELENTIS V.
LUCKENBACH S.S. CO., 247 U.S. 372, 380, 381; JAMISON V. ENCARNACION,
281 U.S. 635, 639; ALPHA S.S. CORP. V. CAIN, 281 U.S. 642; CORTES V.
BALTIMORE INSULAR LINE, 287 U.S. 367, 375; WARNER V. GOLTRA, 293 U.S.
155, 157. 

ANY RULE OF ASSUMPTION OF RISK IN ADMIRALTY, WHATEVER ITS SCOPE, MUST
BE APPLIED IN CONJUNCTION WITH THE ESTABLISHED ADMIRALTY DOCTRINE OF
COMPARATIVE NEGLIGENCE AND IN HARMONY WITH IT.  UNDER THAT DOCTRINE
CONTRIBUTORY NEGLIGENCE, HOWEVER GROSS, IS NOT A BAR TO RECOVERY BUT
ONLY MITIGATES DAMAGES.  THERE BEING NO DEFENSE OF ASSUMPTION OF RISK
WHERE THE SEAMAN IS WITHOUT OPPORTUNITY TO USE A SAFE APPLIANCE, IT
SEEMS PLAIN THAT HIS CHOICE OF A DEFECTIVE INSTEAD OF A SAFE ONE,
RESULTING IN INJURY, DOES NOT DIFFER IN EITHER THE QUALITY OF THE ACT
OR IN ITS INJURIOUS CONSEQUENCES, IN ANY PRACTICAL WAY, FROM HIS
CORRESPONDINGLY NEGLIGENT USE OF A SAFE OR AN UNSAFE APPLIANCE, WHERE
ITS USE HAS CONTRIBUTED TO AN INJURY RESULTING FROM A BREACH OF DUTY BY
THE OWNER.  SEE THE WANDERER, 20 F. 140; THE FRANK AND WILLIE, 45 F.
494; JOHN A. ROEBLING'S SONS CO. V. ERICKSON, 261 F. 986, 987; STORGARD
V. FRANCE & CANADA S.S. CORP., 263 F. 545.  IN EITHER CASE THE SEAMAN'S
NEGLIGENCE IS A CONTRIBUTING CAUSE OF HIS INJURY, WITHOUT WHICH THE
SHIP OWNER WOULD BE LIABLE TO THE FULL EXTENT OF THE DAMAGE. 

THE INCONGRUITY AND PRACTICAL EMBARRASSMENTS IN THE APPLICATION OF A
RULE THAT THE NEGLIGENCE IN THE ONE CASE BARS RECOVERY, WHILE THAT IN
THE OTHER ONLY REDUCES THE RECOVERABLE DAMAGES, ARE EVIDENT.  THE
COMMON LAW IS CONSISTENT IN HOLDING THAT BOTH CONTRIBUTORY NEGLIGENCE
AND ASSUMPTION OF RISK ARE DEFENSES.  BUT OTHER CONSIDERATIONS APART,
IT SEEMS INCONSISTENT, AND AN IMPRACTICABLE REFINEMENT, TO APPLY THE
RULE FOR WHICH PETITIONER CONTENDS IN A SYSTEM OF LAW WHICH MAINTAINS
THE COMPARATIVE NEGLIGENCE RULE TO THE FULLEST EXTENT.  THIS WAS
RECOGNIZED IN OLSON V. FLAVEL, SUPRA, AND THE JULIA FOWLER, SUPRA,
WHERE THE CHOICE BY THE SEAMAN OF AN UNSAFE APPLIANCE WAS HELD NOT TO
BAR RECOVERY BUT TO BE A PROPER BASIS FOR A SUBSTANTIAL REDUCTION OF
DAMAGES BECAUSE OF THE NEGLIGENCE OF THE CHOICE.  IN THE JULIA FOWLER,
SUPRA, THE EMINENT ADMIRALTY JUDGE, ADDISON BROWN, HELD THAT A SEAMAN
WHO HAD SUFFERED INJURY THROUGH THE DELIBERATE USE OF A HALLIARD KNOWN
TO BE DEFECTIVELY SPLICED WHEN A SOUND ROPE WAS AVAILABLE WAS ENTITLED
TO RECOVER, BUT WITH DIMINUTION OF DAMAGES BECAUSE OF HIS NEGLIGENCE IN
USING THE UNSAFE ROPE. 

WE THINK THAT THE CONSISTENT DEVELOPMENT OF THE MARITIME LAW IN
CONFORMITY TO ITS TRADITIONAL POLICY OF AFFORDING ADEQUATE PROTECTION
TO SEAMEN THROUGH AN EXACTION OF A HIGH DEGREE OF RESPONSIBILITY OF
OWNERS FOR THE SEAWORTHINESS OF VESSELS AND THE SAFETY OF THEIR
APPLIANCES WILL BE BEST SERVED BY APPLYING THE RULE OF COMPARATIVE
NEGLIGENCE, RATHER THAN THAT OF ASSUMPTION OF RISK, TO THE SEAMAN WHO
MAKES USE OF A DEFECTIVE APPLIANCE KNOWING THAT A SAFE ONE IS
AVAILABLE.  THE POWER OF THE TRIAL JUDGE TO GUIDE AND INSTRUCT THE JURY
AND HIS CONTROL OVER EXCESSIVE VERDICTS AFFORD AS ADEQUATE A PROTECTION
TO OWNERS AS IN ANY OTHER CASE WHERE THE NEGLIGENCE OF THE SEAMAN,
WHATEVER ITS DEGREE, HAS CONTRIBUTED TO AN ACTIONABLE INJURY. 

UPON THE FACTS OF THIS CASE, THERE WAS NO ERROR IN THE CHARGE OF THE
TRIAL COURT AS TO ASSUMPTION OF RISK.  ITS INSTRUCTION AS TO THE
APPLICATION OF THE RULE OF COMPARATIVE NEGLIGENCE WAS GENERAL AND NO
EXCEPTION WAS TAKEN TO IT.  PETITIONER WOULD HAVE BEEN ENTITLED TO A
MORE SPECIFIC INSTRUCTION, IF REQUESTED, AS TO THE APPROPRIATE EFFECT
UPON THE AMOUNT OF THE VERDICT OF THE RELATIVE DEGREES OF PETITIONER'S
AND RESPONDENT'S NEGLIGENCE IF THE JURY SHOULD FIND THAT RESPONDENT HAD
KNOWINGLY FAILED TO CHOOSE AN AVAILABLE SAFE METHOD OF DOING HIS WORK. 

WE LEAVE TO FUTURE CASES AS THEY MAY ARISE THE DETERMINATION OF WHAT
RULE IS TO APPLY IN CASES WHERE THE SEAMAN'S ELECTION TO USE AN UNSAFE
APPLIANCE IS IN DISOBEDIENCE OF ORDERS OR MADE WHILE NOT ON DUTY. 
AFFIRMED. 

FN1  IN TAMPA INTEROCEAN S.S. CO. V. JORGENSEN, 93 F.2D 927, 930, THE
COURT OF APPEALS FOR THE FIFTH CIRCUIT, IN AFFIRMING A JUDGMENT IN
FAVOR OF A SEAMAN, TOOK OCCASION TO APPROVE THE FOLLOWING INSTRUCTION
BY THE TRIAL COURT TO THE JURY:  "YOU ARE INSTRUCTED THAT IF THE
PLAINTIFF WAS FURNISHED TWO METHODS OF ENTERING THE 'TWEEN DECK SPACE,
ONE OBVIOUSLY SAFE AND THE OTHER OBVIOUSLY UNSAFE, AND IF THE PLAINTIFF
KNEW THE SAFE METHOD AND NOTWITHSTANDING CHOSE THE UNSAFE METHOD, THE
DEFENDANT IS NOT LIABLE." 

FN2  SEE R.S. SEC. 4596, 46 U.S.C. SEC. 701. 

MR. JUSTICE MCREYNOLDS THINKS THE PETITIONER'S REQUEST FOR THE CHARGE
IN RESPECT OF ASSUMPTION OF RISK SHOULD HAVE BEEN GRANTED AND THAT, FOR
THAT REASON, THE CHALLENGED JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











GWIN, ETC., INC. V. HENNEFORD, 305 U.S. 434 


NO. 75.  ARGUED NOVEMBER 10, 1938.  - DECIDED JANUARY 3, 1939.  - 193
WASH. 451 - 75 P.2D 1017, REVERSED. 


A STATE TAX MEASURED BY THE GROSS RECEIPTS OF THE TAXPAYER FROM HIS
BUSINESS OF MARKETING FRUIT SHIPPED FROM THE STATE TO THE PLACES OF
SALE IN OTHER STATES AND FOREIGN COUNTRIES, HELD A BURDEN ON INTERSTATE
AND FOREIGN COMMERCE PROHIBITED BY THE COMMERCE CLAUSE OF THE
CONSTITUTION.  P. 436. 

THE BUSINESS WAS THAT OF A MARKETING AGENT FOR A FEDERATION OF FRUIT
GROWERS.  THE AGENT, WITH THE AID OF NUMEROUS REPRESENTATIVES WITHOUT
THE STATE, SOLD THE FRUIT TO PURCHASERS IN OTHER STATES AND IN FOREIGN
COUNTRIES, FOR PRICES FIXED BY THE PRINCIPAL, COLLECTED AND ACCOUNTED
FOR THE PROCEEDS, AND WAS PAID AT SO MUCH PER BOX.  THE TAX, THOUGH
NOMINALLY IMPOSED UPON THE AGENT'S ACTIVITIES IN WASHINGTON, IS NOT
APPORTIONED TO THOSE ACTIVITIES, BUT IS MEASURED, LIKE THE COMPENSATION
TAXED, UPON THE ENTIRE INTERSTATE COMMERCE SERVICE RENDERED, BOTH
WITHIN AND WITHOUT THE STATE, AND BURDENS THAT COMMERCE IN DIRECT
PROPORTION TO ITS VOLUME.  IF WASHINGTON IS FREE TO EXACT SUCH A TAX,
OTHER STATES TO WHICH THE COMMERCE EXTENDS MAY, WITH EQUAL RIGHT, LAY A
TAX SIMILARLY MEASURED FOR THE PRIVILEGE OF CONDUCTING WITHIN THEIR
RESPECTIVE TERRITORIAL LIMITS THE ACTIVITIES THERE WHICH CONTRIBUTE TO
THE SERVICE. 

GWIN, WHITE & PRINCE, INC. V. HENNEFORD ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

APPEAL FROM A JUDGMENT AFFIRMING A JUDGMENT DISMISSING ON THE MERITS
A BILL TO ENJOIN MEMBERS OF THE STATE TAX COMMISSION OF WASHINGTON FROM
COLLECTING A TAX ON THE "BUSINESS ACTIVITIES" OF THE PLAINTIFF
APPELLANT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL RAISES THE SINGLE QUESTION WHETHER A WASHINGTON TAX
MEASURED BY THE GROSS RECEIPTS OF APPELLANT FROM ITS BUSINESS OF
MARKETING FRUIT SHIPPED FROM WASHINGTON TO THE PLACES OF SALE IN
VARIOUS STATES AND IN FOREIGN COUNTRIES IS A BURDEN ON INTERSTATE AND
FOREIGN COMMERCE PROHIBITED BY THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION. 

APPELLANT, A WASHINGTON CORPORATION LICENSED TO DO BUSINESS THERE,
BROUGHT THIS SUIT IN THE STATE SUPERIOR COURT TO RESTRAIN APPELLEES,
COMPRISING THE STATE TAX COMMISSION, FROM COLLECTING THE "BUSINESS
ACTIVITIES" TAX LAID BY CHAPTER 180 OF WASHINGTON LAWS OF 1935,
AMENDING CHAPTER 191 OF WASHINGTON LAWS OF 1933, ON THE GROUND THAT IT
INFRINGES THE COMMERCE CLAUSE.  BY STIPULATION AFTER DEMURRER TO THE
BILL OF COMPLAINT THE CAUSE WAS TRIED AND DECIDED ON THE MERITS, UPON
FACTS STATED IN THE COMPLAINT AND CERTAIN OTHERS SPECIFIED IN THE
STIPULATION.  JUDGMENT OF THE TRIAL COURT FOR APPELLEES WAS AFFIRMED BY
THE SUPREME COURT OF WASHINGTON, 193 WASH. 451; 75 P.2D 1017, AND THE
CASE COMES HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE AS
AMENDED, 28 U.S.C. SEC. 344. 

1935 LAY "A TAX FOR THE ACT OR PRIVILEGE OF ENGAGING IN BUSINESS
ACTIVITIES" UPON EVERY PERSON (INCLUDING CORPORATIONS) "ENGAGING WITHIN
THIS STATE IN ANY BUSINESS ACTIVITY," WITH EXCEPTIONS NOT NOW MATERIAL,
AT THE RATE OF ONE-HALF OF 1% OF THE "GROSS INCOME OF THE BUSINESS." 
AS THE RECORD DISCLOSES, APPELLANT HAS A PLACE OF BUSINESS IN THE STATE
OF WASHINGTON FROM WHICH IT CARRIES ON ITS OPERATIONS IN MARKETING, IN
OTHER STATES AND FOREIGN COUNTRIES, APPLES AND PEARS GROWN IN
WASHINGTON AND OREGON.  ITS ENTIRE BUSINESS IS THAT OF MARKETING AGENT
FOR FRUIT GROWERS AND GROWERS' COOPERATIVE ORGANIZATIONS IN THOSE
STATES.  AS SUCH IT MAKES SALES AND DELIVERIES OF THE FRUIT IN OTHER
STATES AND IN FOREIGN COUNTRIES, COLLECTS THE SALES PRICES AND REMITS
THE PROCEEDS TO ITS PRINCIPALS AFTER DEDUCTING TRANSPORTATION CHARGES,
CERTAIN EXPENSE ALLOWANCES AND ITS OWN COMPENSATION.  IN THE COURSE OF
THE BUSINESS THE FRUIT IS SHIPPED FROM THE STATES OF ORIGIN -
APPROXIMATELY 25% FROM OREGON - TO OTHER STATES AND FOREIGN COUNTRIES,
SOMETIMES DIRECTLY TO THE PURCHASERS, BUT MORE OFTEN IT IS CONSIGNED TO
APPELLANT AT EXTRA-STATE POINTS FROM WHICH IT IS DIVERTED BY APPELLANT
TO PURCHASERS WHO BUY THE FRUIT WHILE IN TRANSIT, OR WHERE IT IS STORED
PENDING SALE.  REPRESENTATIVES OF APPELLANT AT NUMEROUS POINTS WITHOUT
THE STATE NEGOTIATE SALES OF THE FRUIT ON BEHALF OF APPELLANT AND ON
ITS APPROVAL EXECUTE WRITTEN CONTRACTS OF SALE, EFFECT DELIVERY OF THE
SHIPMENTS TO PURCHASERS, COLLECT THE PURCHASE PRICE AND REMIT IT TO
APPELLANT IN WASHINGTON, WHERE IT IS ACCOUNTED FOR TO THE SHIPPERS.  IN
CONDUCTING THE BUSINESS APPELLANT SENDS TO ITS REPRESENTATIVES WITHOUT
THE STATE DAILY BULLETINS LISTING THE FRUIT, SOME OF WHICH IS IN
TRANSIT INTERSTATE AND SOME OF WHICH HAS ALREADY BEEN PLACED IN STORAGE
WITHOUT THE STATE, AND IT EXPENDS LARGE AMOUNTS FOR COMMUNICATIONS BY
TELEPHONE, TELEGRAPH AND CABLE BETWEEN ITSELF IN WASHINGTON AND ITS
REPRESENTATIVES OUTSIDE THE STATE. 

THE ENTIRE WASHINGTON BUSINESS IS CARRIED ON BY APPELLANT UNDER
CONTRACT WITH AN INCORPORATED FEDERATION OF TWELVE STATE COOPERATIVE
GROWERS' ORGANIZATIONS.  BY THIS CONTRACT APPELLANT IS GIVEN EXCLUSIVE
AUTHORITY TO SELL ALL APPLES AND PEARS COMING INTO THE POSSESSION AND
CONTROL OF THE FEDERATION AS AGENT FOR ITS MEMBERS AND TO COLLECT THE
PROCEEDS OF SALE.  APPELLANT UNDERTAKES TO SELL THESE PRODUCTS AT
PRICES FIXED BY THE FEDERATION, TO OBTAIN THEIR WIDEST POSSIBLE
DISTRIBUTION, TO ATTEND TO ALL TRAFFIC MATTERS PERTAINING TO SHIPMENT
AND TRANSPORTATION OF THE FRUIT, TO EFFECT DELIVERY TO PURCHASERS AND
TO COLLECT AND REMIT THE SALES PRICES.  THE STIPULATED COMPENSATION FOR
THE ENTIRE SERVICE IS AT THE RATE OF 8 CENTS A BOX FOR APPLES SOLD AND
10 CENTS A BOX FOR PEARS.  ACCORDING TO THE BILL OF COMPLAINT APPELLEES
ASSERT THAT APPELLANT IS SUBJECT TO THE TAX UPON ITS ENTIRE GROSS
REVENUE FROM THE BUSINESS, AND THEY THREATEN TO COLLECT THE TAX AND TO
IMPOSE PENALTIES FOR ITS NONPAYMENT.  BUT ON THE TRIAL IT WAS
STIPULATED THAT "THE STATE MAKES NO CLAIM" TO THE TAX UPON APPELLANT'S
OREGON BUSINESS, AND WE TREAT THE DECISION AND DECREE OF THE STATE
COURT AS CONCERNED ONLY WITH THE VALIDITY OF THE TAX MEASURED BY THE
AMOUNT OF FRUIT SHIPPED FROM WASHINGTON. 

THE SUPREME COURT OF WASHINGTON, CONCEDING THAT THE SHIPMENT OF THE
FRUIT FROM THE STATE OF ORIGIN TO POINTS OUTSIDE, AND ITS SALE THERE,
INVOLVE INTERSTATE COMMERCE, HELD NEVERTHELESS THAT APPELLANT'S
ACTIVITIES IN WASHINGTON IN PROMOTING THE COMMERCE WERE A LOCAL
BUSINESS, SUBJECT TO STATE TAXATION AS IS OTHER BUSINESS CARRIED ON IN
THE STATE, AND IT SUSTAINED THE PRESENT LEVY, AGAINST ATTACK UNDER THE
COMMERCE CLAUSE, AS A TAX UPON THOSE ACTIVITIES, CITING FICKLEN V.
SHELBY COUNTY TAXING DISTRICT, 145 U.S. 1, AND AMERICAN MANUFACTURING
CO. V. ST. LOUIS, 250 U.S. 459. 

WE NEED NOT STOP TO CONSIDER WHICH, IF ANY, OF APPELLANT'S ACTIVITIES
IN CARRYING ON ITS BUSINESS ARE IN THEMSELVES TRANSPORTATION OF THE
FRUIT IN INTERSTATE OR FOREIGN COMMERCE.  FOR THE ENTIRE SERVICE FOR
WHICH THE COMPENSATION IS PAID IS IN AID OF THE SHIPMENT AND SALE OF
MERCHANDISE IN THAT COMMERCE.  SUCH SERVICES ARE WITHIN THE PROTECTION
OF THE COMMERCE CLAUSE, ROBBINS V. SHELBY COUNTY TAXING DISTRICT, 120
U.S. 489; CALDWELL V. NORTH CAROLINA, 187 U.S. 622; REAL SILK MILLS V.
PORTLAND, 268 U.S. 325; AND THE ONLY QUESTION IS WHETHER THE TAXATION
OF APPELLANT'S GROSS RECEIPTS DERIVED FROM THEM IS SUCH AN INTERFERENCE
WITH INTERSTATE COMMERCE AS TO BRING THE TAX WITHIN THE CONSTITUTIONAL
PROHIBITION. 

WHILE APPELLANT IS ENGAGED IN BUSINESS WITHIN THE STATE, AND THE
STATE COURTS HAVE SUSTAINED THE TAX AS LAID ON ITS ACTIVITIES THERE,
THE INTERSTATE COMMERCE SERVICE WHICH IT RENDERS AND FOR WHICH THE
TAXED COMPENSATION IS PAID IS NOT WHOLLY PERFORMED WITHIN THE STATE.  A
SUBSTANTIAL PART OF IT IS OUTSIDE THE STATE WHERE SALES ARE NEGOTIATED
AND WRITTEN CONTRACTS OF SALE ARE EXECUTED, AND WHERE DELIVERIES AND
COLLECTIONS ARE MADE.  BOTH THE COMPENSATION AND THE TAX LAID UPON IT
ARE MEASURED BY THE AMOUNT OF THE COMMERCE - THE NUMBER OF BOXES OF
FRUIT TRANSPORTED FROM WASHINGTON TO PURCHASERS ELSEWHERE; SO THAT THE
TAX, THOUGH NOMINALLY IMPOSED UPON APPELLANT'S ACTIVITIES IN
WASHINGTON, BY THE VERY METHOD OF ITS MEASUREMENT REACHES THE ENTIRE
INTERSTATE COMMERCE SERVICE RENDERED BOTH WITHIN AND WITHOUT THE STATE
AND BURDENS THE COMMERCE IN DIRECT PROPORTION TO ITS VOLUME. 

THE CONSTITUTIONAL EFFECT OF A TAX UPON GROSS RECEIPTS DERIVED FROM
PARTICIPATION IN INTERSTATE COMMERCE AND MEASURED BY THE AMOUNT OR
EXTENT OF THE COMMERCE ITSELF HAS BEEN SO RECENTLY AND FULLY CONSIDERED
BY THIS COURT THAT IT IS UNNECESSARY NOW TO ELABORATE THE APPLICABLE
PRINCIPLES.  WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250;
ADAMS MANUFACTURING CO. V. STOREN, 304 U.S. 307; CF. COVERDALE V.
ARKANSAS-LOUISIANA PIPE LINE CO., 303 U.S. 604. 

IT HAS OFTEN BEEN RECOGNIZED THAT "EVEN INTERSTATE BUSINESS MUST PAY
ITS WAY" BY HEARING ITS SHARE OF LOCAL TAX BURDENS, POSTAL TELEGRAPH
CABLE CO. V. RICHMOND, 249 U.S. 252, 259, AND THAT IN CONSEQUENCE NOT
EVERY LOCAL TAX LAID UPON GROSS RECEIPTS DERIVED FROM PARTICIPATION IN
INTERSTATE COMMERCE IS FORBIDDEN.  SEE WESTERN LIVE STOCK V. BUREAU OF
REVENUE, SUPRA, 254 ET SEQ., AND CASES CITED.  BUT IT IS ENOUGH FOR
PRESENT PURPOSES THAT UNDER THE COMMERCE CLAUSE, IN THE ABSENCE OF
CONGRESSIONAL ACTION, STATE TAXATION, WHATEVER ITS FORM, IS PRECLUDED
IF IT DISCRIMINATES AGAINST INTERSTATE COMMERCE OR UNDERTAKES TO LAY A
PRIVILEGE TAX MEASURED BY GROSS RECEIPTS DERIVED FROM ACTIVITIES IN
SUCH COMMERCE WHICH EXTEND BEYOND THE TERRITORIAL LIMITS OF THE TAXING
STATE.  SUCH A TAX, AT LEAST WHEN NOT APPORTIONED TO THE ACTIVITIES
CARRIED ON WITHIN THE STATE, SEE MAINE V. GRAND TRUNK RY. CO., 142 U.S.
217; WISCONSIN & M. RY. CO. V. POWERS, 191 U.S. 379; CUDAHY PACKING CO.
V. MINNESOTA, 246 U.S. 450; UNITED STATES EXPRESS CO. V. MINNESOTA, 223
U.S. 335; CF. FICKLEN V. SHELBY COUNTY TAXING DISTRICT, SUPRA; AMERICAN
MANUFACTURING CO. V. ST. LOUIS, SUPRA, BURDENS THE COMMERCE IN THE SAME
MANNER AND TO THE SAME EXTENT AS IF THE EXACTION WERE FOR THE PRIVILEGE
OF ENGAGING IN INTERSTATE COMMERCE AND WOULD, IF SUSTAINED, EXPOSE IT
TO MULTIPLE TAX BURDENS, EACH MEASURED BY THE ENTIRE AMOUNT OF THE
COMMERCE, TO WHICH LOCAL COMMERCE IS NOT SUBJECT. 

HERE THE TAX, MEASURED BY THE ENTIRE VOLUME OF THE INTERSTATE
COMMERCE IN WHICH APPELLANT PARTICIPATES, IS NOT APPORTIONED TO ITS
ACTIVITIES WITHIN THE STATE.  IF WASHINGTON IS FREE TO EXACT SUCH A
TAX, OTHER STATES TO WHICH THE COMMERCE EXTENDS MAY, WITH EQUAL RIGHT,
LAY A TAX SIMILARLY MEASURED FOR THE PRIVILEGE OF CONDUCTING WITHIN
THEIR RESPECTIVE TERRITORIAL LIMITS THE ACTIVITIES THERE WHICH
CONTRIBUTE TO THE SERVICE.  THE PRESENT TAX, THOUGH NOMINALLY LOCAL,
THUS IN ITS PRACTICAL OPERATION DISCRIMINATES AGAINST INTERSTATE
COMMERCE, SINCE IT IMPOSES UPON IT, MERELY BECAUSE INTERSTATE COMMERCE
IS BEING DONE, THE RISK OF A MULTIPLE BURDEN TO WHICH LOCAL COMMERCE IS
NOT EXPOSED.  ADAMS MANUFACTURING CO. V. STOREN, SUPRA, 310, 311; CF.
FARGO V. MICHIGAN, 121 U.S. 230; PHILADELPHIA & SOUTHERN S.S. CO. V.
PENNSYLVANIA, 122 U.S. 326; GALVESTON, H. & S.A. RY. CO. V. TEXAS, 210
U.S. 217, 225, 227; MEYER V. WELLS, FARGO & CO., 223 U.S. 298; CREW
LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292; FISHER'S BLEND STATION V.
STATE TAX COMMISSION, 297 U.S. 650; SEE WESTERN LIVE STOCK V. BUREAU OF
REVENUE, SUPRA, 260.  SUCH A MULTIPLICATION OF STATE TAXES, EACH
MEASURED BY THE VOLUME OF THE COMMERCE, WOULD REESTABLISH THE BARRIERS
TO INTERSTATE TRADE WHICH IT WAS THE OBJECT OF THE COMMERCE CLAUSE TO
REMOVE.  UNLAWFULNESS OF THE BURDEN DEPENDS UPON ITS NATURE, MEASURED
IN TERMS OF ITS CAPACITY TO OBSTRUCT INTERSTATE COMMERCE, AND NOT ON
THE CONTINGENCY THAT SOME OTHER STATE MAY FIRST HAVE SUBJECTED THE
COMMERCE TO A LIKE BURDEN. 

FICKLEN V. SHELBY COUNTY TAXING DISTRICT, SUPRA, WHICH THE WASHINGTON
SUPREME COURT THOUGHT SUSTAINED ITS DECISION, UPHELD A STATE LICENSE
TAX IMPOSED UPON THE PRIVILEGE OF DOING A BROKERAGE BUSINESS WITHIN THE
STATE AND MEASURED BY THE GROSS RECEIPTS OF COMMISSIONS FROM SALES OF
MERCHANDISE SHIPPED INTO THE STATE FOR DELIVERY AFTER THE SALES WERE
MADE.  ALTHOUGH THE TAX, MEASURED BY GROSS RECEIPTS, TO SOME EXTENT
BURDENED THE COMMERCE, IT WAS HELD THAT THE BURDEN DID NOT INFRINGE THE
COMMERCE CLAUSE.  SINCE IT WAS APPORTIONED EXACTLY TO THE ACTIVITIES
TAXED, ALL OF WHICH WERE INTRASTATE, THE TAX WAS FAIRLY MEASURED BY THE
VALUE OF THE LOCAL PRIVILEGE OR FRANCHISE.  NEW YORK, L.E. & W.R. CO.
V. PENNSYLVANIA, 158 U.S. 431; AMERICAN MANUFACTURING CO. V. ST. LOUIS,
SUPRA; UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165; COVERDALE V.
ARKANSAS-LOUISIANA PIPE LINE CO., SUPRA.  NEITHER THE TAX IN THE
FICKLEN CASE NOR THAT UPHELD IN AMERICAN MANUFACTURING CO. V. ST.
LOUIS, SUPRA, WAS OPEN TO THE OBJECTION DIRECTED HERE TO THE PRESENT
TAX AND SUSTAINED IN ADAMS MANUFACTURING CO. V. STOREN, SUPRA, 311,
THAT THE TAX IS MEASURED BY GROSS RECEIPTS FROM ACTIVITIES IN
INTERSTATE COMMERCE CONDUCTED BOTH WITHIN AND WITHOUT THE TAXING STATE
AND THAT THE EXACTION IS OF SUCH A CHARACTER THAT IF LAWFUL IT MIGHT BE
LAID TO THE FULLEST EXTENT BY THE STATES IN WHICH THE MERCHANDISE IS
SOLD AS WELL AS BY THOSE FROM WHICH IT IS SHIPPED.  SEE WESTERN LIVE
STOCK V. BUREAU OF REVENUE, SUPRA, 260. 

FOR MORE THAN A CENTURY, SINCE BROWN V. MARYLAND, 12 WHEAT.  419,
445, IT HAS BEEN RECOGNIZED THAT UNDER THE COMMERCE CLAUSE, CONGRESS
NOT ACTING, SOME PROTECTION IS AFFORDED TO INTERSTATE COMMERCE AGAINST
STATE TAXATION OF THE PRIVILEGE OF ENGAGING IN IT.  WEBBER V. VIRGINIA,
103 U.S. 344; TELEGRAPH CO. V. TEXAS, 105 U.S. 460; ROBBINS V. SHELBY
COUNTY TAXING DISTRICT, SUPRA; LELOUP V. MOBILE, 127 U.S. 640; BRENNAN
V. TITUSVILLE, 153 U.S. 289; INTERNATIONAL TEXT BOOK CO. V. PIGG, 217
U.S. 91; FISHER'S BLEND STATION V. STATE TAX COMMISSION, SUPRA; ADAMS
MANUFACTURING CO. V. STOREN, SUPRA.  FOR HALF A CENTURY, FOLLOWING THE
DECISION IN PHILADELPHIA & SOUTHERN S.S. CO. V. PENNSYLVANIA, 122 U.S.
326, IT HAS NOT BEEN DOUBTED THAT STATE TAXATION OF LOCAL PARTICIPATION
IN INTERSTATE COMMERCE, MEASURED BY THE ENTIRE VOLUME OF THE COMMERCE,
IS LIKEWISE FORECLOSED.  DURING THAT PERIOD CONGRESS HAS NOT SEEN FIT
TO EXERCISE ITS CONSTITUTIONAL POWER TO ALTER OR ABOLISH THE RULES THUS
JUDICIALLY ESTABLISHED.  INSTEAD, IT HAS LEFT THEM UNDISTURBED,
DOUBTLESS BECAUSE IT HAS APPRECIATED THE DESTRUCTIVE CONSEQUENCES TO
THE COMMERCE OF THE NATION IF THEIR PROTECTION WERE WITHDRAWN. 
MEANWHILE CONGRESS HAS ACCOMMODATED ITS LEGISLATION, AS HAVE THE
STATES, TO THESE RULES AS AN ESTABLISHED FEATURE OF OUR CONSTITUTIONAL
SYSTEM.  THERE HAS BEEN LEFT TO THE STATES WIDE SCOPE FOR TAXATION OF
THOSE ENGAGED IN INTERSTATE COMMERCE, EXTENDING TO THE INSTRUMENTS OF
THAT COMMERCE, TO NET INCOME DERIVED FROM IT, AND TO OTHER FORMS OF
TAXATION NOT DESTRUCTIVE OF IT.  SEE WESTERN LIVE STOCK V. BUREAU OF
REVENUE, SUPRA, 254, ET SEQ., AND CASES CITED.  REVERSED.    MR.
JUSTICE BUTLER, CONCURRING. 

MR. JUSTICE MCREYNOLDS AND I CONCUR IN THE RESULT.    APPELLANT IS
ENGAGED EXCLUSIVELY IN INTERSTATE COMMERCE, A PART OF WHICH IS CARRIED
ON IN THE STATE OF WASHINGTON.  FOR THE PRIVILEGE OF DOING THAT
BUSINESS THE STATE STATUTE PURPORTS TO TAX ITS GROSS EARNINGS AT THE
RATE OF ONE-HALF OF ONE PER CENT.  THE EXACTION IS PLAINLY REPUGNANT TO
THE COMMERCE CLAUSE.  PHILADELPHIA & SOUTHERN S.S. CO. V. PENNSYLVANIA,
122 U.S. 326.  GALVESTON, H. & S.A. RY. CO. V. TEXAS, 210 U.S. 217. 
MEYER V. WELLS, FARGO & CO., 223 U.S. 298, 300.  NEW JERSEY TELEPHONE
CO. V. TAX BOARD, 280 U.S. 338, 346.  FISHER'S BLEND STATION V. TAX
COMM'N, 297 U.S. 650, 655-656.  PUGET SOUND CO. V. TAX COMM'N, 302 U.S.
90, 94.  SEE MATSON NAVIGATION CO. V. STATE BOARD, 297 U.S. 441, 444. 
REVERSAL APPROPRIATELY MAY BE BASED ON CITATION OF THESE DECISIONS
WITHOUT MORE. 

MR. JUSTICE BLACK, DISSENTING. 

"EQUALITY IS THE THEME THAT RUNS THROUGH ALL THE SECTIONS OF THE
STATUTE"  FN1  OF THE STATE OF WASHINGTON HERE CONSIDERED.  THE STATUTE
IMPOSES A GENERAL, NON-DISCRIMINATORY TAX - MEASURED BY GROSS RECEIPTS
UPON ALL BUSINESSES OPERATING IN THAT STATE.  THE INTENDED EQUALITY OF
THE STATUTE WILL BECOME UNEQUALITY BY THE JUDGMENT OF THIS COURT HERE,
BECAUSE APPELLANT AND ALL OTHER BUSINESSES IN WASHINGTON THAT RECEIVE
INCOME FOR SELLING WASHINGTON PRODUCTS IN THAT AND OTHER STATES, ARE
EXEMPTED FROM THE TAX.  APPELLANT IS EXEMPTED FROM PAST, PRESENT AND
FUTURE PAYMENTS OF THIS TAX.  NOT SO, HOWEVER, AS TO PAST, PRESENT, OR
FUTURE PAYMENTS BY WASHINGTON BUSINESSES SELLING ONLY TO CITIZENS OF
THAT STATE.  THEY MUST BEAR THE ENTIRE BURDEN OF THE TAX.  THUS THE
JUDGMENT HERE, FRAMED TO PREVENT CONJECTURED FUTURE, POSSIBLE - NOT
PRESENT AND ACTUAL - DISCRIMINATION AGAINST INTERSTATE COMMERCE, MAKES
OF THIS STATUTE WITH EQUALITY AS ITS THEME, AN INSTRUMENT OF
DISCRIMINATION AGAINST WASHINGTON INTRA-STATE BUSINESSES.  APPELLANT, A
WASHINGTON AGENT OR BROKER SELLING WASHINGTON PRODUCTS IN THAT STATE
AND ELSEWHERE, CAN NOW DO SO FREED FROM THIS BUSINESS TAX.  WASHINGTON
AGENTS AND BROKERS SELLING THE SAME PRODUCTS TO WASHINGTON CITIZENS
(AND ALL OTHER LOCAL BUSINESSES) MUST PAY.  WASHINGTON'S INTRA-STATE
COMMERCE THUS WILL "PAY ITS WAY"; FN2  INTERSTATE COMMERCE NEED NOT. 

IN 1933, WASHINGTON'S SYSTEM OF TAXATION FAILED TO SUPPLY ADEQUATE
REVENUE TO SUPPORT ACTIVITIES ESSENTIAL TO THE WELFARE OF ITS PEOPLE. 
MOUNTING DELINQUENCIES DUE TO BURDENSOME TAXES ON PROPERTY LED THE
STATE LEGISLATURE TO CONCLUDE THAT PROPERTY TAXES HAD TO BE REDUCED. 
THIS REDUCTION WAS MADE.  THEN, FORCED TO SEEK NEW SOURCES OF REVENUE,
FN3  THE STATE TURNED - AS DID MANY OTHER STATES FACED WITH SIMILAR
NEEDS  FN4  - TO A GENERAL, NON-DISCRIMINATORY EXCISE TAX UPON BUSINESS
CARRIED ON IN WASHINGTON, MEASURED BY GROSS RECEIPTS.  THIS GENERAL AND
NON-DISCRIMINATORY TAX ENABLED "THE COMMON SCHOOLS OF THE STATE  ...
TO OPERATE THE FULL SCHOOL TERM."  FN5  WHILE THOSE ENGAGED IN
INTERSTATE BUSINESSES HAVE ENJOYED THE PROPERTY TAX REDUCTION IN COMMON
WITH ALL WASHINGTON BUSINESSES, THE EXEMPTION FROM TAXATION HERE
GRANTED APPELLANT FORCES INTRA-STATE BUSINESSES TO BEAR THE ENTIRE
BURDEN OF THE EXCISE THAT REPLACED THE REPEALED PROPERTY TAXES.  FN6
ONLY INTRA-STATE BUSINESS IS REQUIRED TO CONTRIBUTE UNDER THIS EXCISE
TO THE SUPPORT OF THE STATE GOVERNMENT THAT AFFORDS PROTECTION TO BOTH
INTERSTATE AND LOCAL BUSINESS.  FN7 

APPELLANT, A WASHINGTON CORPORATION, SERVES - UNDER A CONTRACT MADE
IN WASHINGTON - AS SALES AGENT FOR WASHINGTON APPLE GROWERS.  ITS
AGENTS SELL THESE WASHINGTONGROWN APPLES IN WASHINGTON AND OTHER
STATES.  THE WASHINGTON EXCISE TAX IS MEASURED BY APPELLANT'S GROSS
INCOME - RECEIVED IN WASHINGTON - AND EARNED SOLELY BY SELLING APPLES
GROWN IN AND SHIPPED FROM THAT STATE.  FN8 

NO OTHER STATE IN WHICH APPELLANT'S AGENTS PERFORM SALES SERVICES HAS
IMPOSED A SIMILAR TAX UPON APPELLANT MEASURED BY ANY PART OF ITS GROSS
RECEIPTS.  SUCH AN EVENTUALITY - IF IT SHOULD OCCUR - IS GIVEN THE
TITLE OF "MULTIPLE TAXATION."  AND SUCH CONJECTURED "MULTIPLE TAXATION"
WOULD BE - IT IS SAID - A VIOLATION OF THAT CLAUSE OF THE CONSTITUTION
WHICH GIVES CONGRESS POWER TO REGULATE COMMERCE AMONG THE STATES.  THUS
FAR, CONGRESS HAS NOT DEEMED IT NECESSARY TO PROHIBIT THE STATES FROM
LEVYING TAXES MEASURED BY GROSS RECEIPTS FROM INTERSTATE COMMERCE. 
WHILE THERE ARE STRONG LOGICAL GROUNDS UPON WHICH THIS COURT HAS BASED
ITS INVALIDATION OF STATE LAWS ACTUALLY IMPOSING UNJUST, UNFAIR, AND
DISCRIMINATORY BURDENS AGAINST INTERSTATE COMMERCE AS SUCH,  FN9  THE
SAME GROUNDS DO NOT SUPPORT A JUDICIAL REGULATION DESIGNED TO PROTECT
COMMERCE FROM VALIDLY ENACTED NON-DISCRIMINATORY STATE TAXES WHICH DO
NOT - BUT MAY SOMETIME - PROVE BURDENSOME.  WITH REFERENCE TO THE
POSSIBLE INVALIDITY OF ANOTHER PHASE OF THIS SAME WASHINGTON TAX
PROGRAM BY REASON OF CONJECTURED FUTURE TAXES OF OTHER STATES, THIS
COURT HAS SAID:  FN10 

"A STATE, FOR MANY PURPOSES, IS TO BE RECKONED AS A SELF-CONTAINED
UNIT, WHICH MAY FRAME ITS OWN SYSTEM OF BURDENS AND EXEMPTIONS WITHOUT
HEEDING SYSTEMS ELSEWHERE.  IF THERE ARE LIMITS TO THAT POWER, THERE IS
NO NEED TO MARK THEM NOW.  IT WILL BE TIME ENOUGH TO MARK THEM WHEN A
TAXPAYER PAYING IN THE STATE OF ORIGIN IS COMPELLED TO PAY AGAIN IN THE
STATE OF DESTINATION." 

SO HERE, IF NATIONAL REGULATION TO PREVENT "MULTIPLE TAXATION" IS
WITHIN THE CONSTITUTIONAL POWER OF THIS COURT, IT WOULD SEEM TO BE TIME
ENOUGH TO CONSIDER IT WHEN APPELLANT OR SOME OTHER TAXPAYER IS ACTUALLY
SUBJECTED TO "MULTIPLE TAXATION." 

UNLESS WE PRESUPPOSE THAT THE CONJECTURED TAX ON APPELLANT'S GROSS
INCOME BY ANOTHER STATE WOULD BE VALID, APPELLANT HAS NOT EVEN SHOWN A
HYPOTHETICAL POSSIBILITY OF INJURY.  CERTAINLY, WASHINGTON'S LAW,
ENJOYING A STRONG PRESUMPTION OF CONSTITUTIONALITY, WOULD NOT BE
INVALIDATED BECAUSE OF APPREHENSION THAT ANOTHER STATE MIGHT LAY A TAX
ON APPELLANT'S INCOME WHICH IS INVALID AND UNENFORCEABLE.  ANY OTHER
STATE'S TAX ON APPELLANT WHICH DIRECTLY DISCRIMINATES AGAINST
INTERSTATE COMMERCE, COULD NOT (TOGETHER WITH WASHINGTON'S TAX) CREATE
A "MULTIPLE BURDEN."  THIS IS SO, BECAUSE SUCH A DISCRIMINATORY TAX
LAW, STANDING ALONE, WOULD BE HELD TO VIOLATE THE COMMERCE CLAUSE. 
FN11  EVERY STATE HAS THE RIGHT TO UTILIZE GROSS RECEIPTS AS THE
MEASURE OF TAXES WHICH IT HAS THE POWER TO IMPOSE.  FN12  WASHINGTON -
IT IS ADMITTED - HAD THE POWER TO TAX APPELLANT SAVE FOR THE
POSSIBILITY OF "MULTIPLE TAXATION."  SINCE "MULTIPLE TAXATION" CAN ONLY
RESULT IF ANOTHER STATE PASSES A VALID, NON-DISCRIMINATORY TAX LAW, TWO
NON-DISCRIMINATORY STATE LAWS WHEN COMBINED BECOME INVALID AND
DISCRIMINATORY UNDER THE COMMERCE CLAUSE, AS A RESULT OF THE JUDGMENT
HERE.  THIS IS THE CONSEQUENCE OF DEPARTING FROM THE SOUND POSITION
THAT STATE LAWS ARE NOT INVALID UNDER THE COMMERCE CLAUSE UNLESS THEY
ACTUALLY DISCRIMINATE AGAINST INTERSTATE COMMERCE OR CONFLICT WITH A
REGULATION ENACTED BY CONGRESS. 

APPELLANT IS HERE SPECIFICALLY EXEMPTED FROM WASHINGTON'S NON
DISCRIMINATORY "TAX FOR THE ACT OR PRIVILEGE OF ENGAGING IN BUSINESS
ACTIVITIES" IN WASHINGTON BECAUSE OF CONJECTURED SIMILAR TAXATION OF
APPELLANT IN OTHER STATES.  HOWEVER, THE PRINCIPLES ANNOUNCED IN THE
FIRST THREE CASES RELIED ON BY THE MAJORITY  FN13  WOULD CONSTITUTE
AUTHORITY FOR EXEMPTING APPELLANT'S AGENTS FROM A TAX ON THE PRIVILEGE
OF ENGAGING IN THE BUSINESS OF SELLING AND DELIVERING APPLES "IN OTHER
STATES TO WHICH (APPELLANT'S) COMMERCE EXTENDS."  THESE PRINCIPLES WERE
THERE APPLIED BY THIS COURT TO INVALIDATE TAXES ON THE PRIVILEGE OF
NEGOTIATING INTERSTATE SALES, LEVIED BY STATES IN WHICH THE PURCHASERS
RESIDED.  IN ONE OF THE CASES (CALDWELL V. NORTH CAROLINA, DECIDED IN
1903), THIS COURT OBSERVED (PP. 632-3) "THAT EFFORTS TO CONTROL
COMMERCE OF THIS KIND, IN THE INTEREST OF THE STATES WHERE THE
PURCHASERS RESIDE, HAVE BEEN FREQUENTLY MADE IN THE FORM OF STATUTES
AND MUNICIPAL ORDINANCES, BUT  ...  SUCH EFFORTS HAVE BEEN HERETOFORE
RENDERED FRUITLESS BY THE SUPERVISING ACTION OF THIS COURT."  THE
REASONING OF THESE THREE CASES, HOWEVER, DOES NOT SUPPORT THE JUDGMENT
HERE WHICH INVALIDATES A PRIVILEGE TAX LEVIED, NOT BY THE STATE WHERE
THE APPLES WERE PURCHASED, BUT BY THE STATE WHERE THE APPLES WERE
GROWN, WHERE THE APPELLANT DOES BUSINESS, AND TO WHICH ALL PROCEEDS
FROM SALES MADE BY APPELLANT ARE REMITTED.  THIS IS ESPECIALLY TRUE
SINCE THE THREE EARLIER DECISIONS ASSUMED THAT A PRIVILEGE TAX IMPOSED
BY AN INTERSTATE BUSINESS'S STATE OF RESIDENCE (SUCH AS THIS WASHINGTON
TAX ON APPELLANT) WOULD BE VALID.  IN ROBBINS V. SHELBY COUNTY TAXING
DISTRICT, SUPRA, AT PAGE 498, THE COURT - IN EXPLAINING THAT THE LEVY
BY THE STATE OF PURCHASE OF A TAX ON THE PRIVILEGE OF SELLING WOULD
DISCRIMINATE AGAINST OUT OF STATE BUSINESSES - SAID:  "IT IS
PRESUMABLE,  ...  (THAT) THE MERCHANTS AND MANUFACTURERS OF OTHER
STATES IN THE PLACES WHERE THEY RESIDE" ARE TAXED FOR THEIR LICENSED
BUSINESSES THERE.  IN SHOWING THAT "THE TAX ...  (WAS) DISCRIMINATIVE
AGAINST THE MERCHANTS AND MANUFACTURERS OF OTHER STATES" THE COURT ALSO
STATED THAT "  ...  IT NOT ONLY OPERATES AS A RESTRICTION UPON
INTERSTATE COMMERCE, BUT  ...  IT IS INTENDED TO HAVE THAT EFFECT AS
ONE OF ITS PRINCIPAL OBJECTS."  APPELLANT'S BUSINESS IS EXEMPTED HERE
FROM A PRIVILEGE TAX IN ITS STATE OF RESIDENCE, AND APPROVAL IS GIVEN
AUTHORITIES EXEMPTING SUCH BUSINESS FROM PRIVILEGE TAXES IN OTHER
STATES WHERE APPELLANT'S ACTIVITIES ARE CARRIED ON.  THUS, THESE THREE
CASES STAND BETWEEN APPELLANT AND CONJECTURED "MULTIPLE TAXATION" IN
OTHER STATES WHERE ITS AGENTS SELL APPLES.  THE EXEMPTION OF INTERSTATE
BUSINESS FROM THE TYPE OF STATE TAXATION HERE INVOLVED IS NOW MADE
COMPLETE. 

A BUSINESS ENGAGING IN ACTIVITIES IN TWO OR MORE STATES SHOULD BEAR
ITS PART OF THE TAX BURDENS OF EACH.  IF VALID, NON-DISCRIMINATORY
TAXES IMPOSED IN THESE STATES CREATE "MULTIPLE" BURDENS, SUCH "BURDENS"
RESULT FROM THE POLITICAL SUBDIVISIONS CREATED BY OUR FORM OF
GOVERNMENT.  THEY ARE THE PRICE PAID FOR GOVERNMENTAL PROTECTION AND
MAINTENANCE IN ALL STATES WHERE THE TAXPAYER DOES BUSINESS.  A STATE'S
TAXES ARE NOT DISCRIMINATORY IF THE STATE TREATS THOSE ENGAGED IN
INTERSTATE AND INTRA-STATE BUSINESS WITH EQUALITY AND JUSTICE.  IF THE
COMBINED VALID AND NON-DISCRIMINATORY TAXES OF MANY STATES RAISE A
PROBLEM, ONLY CONGRESS HAS POWER TO CONSIDER THAT PROBLEM AND TO
REGULATE WITH RESPECT TO IT.  NEITHER A STATE, NOR A STATE WITH THE
APPROVAL OF THIS COURT, HAS THE CONSTITUTIONAL POWER TO ENACT RULES TO
ADJUST AND GOVERN CONFLICTING STATE INTERESTS IN INTERSTATE COMMERCE. 

LEGISLATIVE INQUIRY MIGHT DISCLOSE TO CONGRESS THAT THE SPECULATIVE
DANGER OF INJURY TO INTERSTATE COMMERCE IS MORE THAN OFFSET BY THE
CERTAIN INJURY TO RESULT FROM DEPRIVING STATES OF A PRACTICAL METHOD OF
TAXATION.  IT MIGHT APPEAR TO CONGRESS THAT THE ADOPTION OF A RULE
AGAINST STATE TAXES MEASURED BY INTERSTATE COMMERCE GROSS RECEIPTS
WOULD DEPRIVE THE STATES OF A POTENT WEAPON USEFUL IN PREVENTING
EVASION OF STATE TAXES. 

THIS COURT'S RULE WOULD PERMIT WASHINGTON TO TAX APPELLANT'S NET
INCOME.  BUT DETERMINATION AND COLLECTION OF TAXES ON NET INCOMES ARE
OFTEN VERY DIFFICULT BECAUSE CORPORATE PROFITS AND INCOME MAY BE
ISOLATED OR HIDDEN BY ACCOUNTING METHODS, HOLDING COMPANIES AND
INTERCORPORATE DEALINGS.  A SUBSTANTIAL PORTION OF THE NATION'S
COMMERCE IS CARRIED ON BY CORPORATIONS WITH FAR-FLUNG BUSINESS
ACTIVITIES IN MANY STATES.  INTER-CORPORATE RELATIONS MAY ASSUME "THEIR
RATHER CUMBERSOME AND INVOLVED NATURE FOR THE PURPOSE OF EVADING (A
STATE)  ...  TAX" ON INCOME AND TO "REMOVE INCOME FROM THE STATE THOUGH
STILL CREATING IT WITHIN THE STATE."  FN14  EVEN "PROFITS THEMSELVES
ARE NOT SUSCEPTIBLE OF ASCERTAINMENT WITH CERTAINTY AND PRECISION
EXCEPT AS THE RESULT OF INQUIRIES TOO MINUTE TO BE PRACTICABLE."  N15 

CONGRESS MIGHT CONCLUDE THAT THE STATES SHOULD NOT BE PROHIBITED FROM
UTILIZING NON-DISCRIMINATORY GROSS RECEIPTS TAXES FOR STATE REVENUES,
BECAUSE THERE ARE "JUSTIFICATIONS FOR THE GROSS RECEIPTS TAX.  ...  IT
HAS GREATER CERTITUDE AND FACILITY OF ADMINISTRATION THAN THE NET
INCOME TAX, AN IMPORTANT CONSIDERATION TO TAXPAYER AND TAX GATHERER
ALIKE.  AND THE VOLUME OF TRANSACTIONS INDICATED ON THE TAXPAYER'S
BOOKS MAY BEAR A CLOSER RELATION TO THE COST OF GOVERNMENTAL
SUPERVISION AND PROTECTION THAN THE ANNUAL PROFIT AND LOSS STATEMENT." 
FN16 

ONLY A COMPREHENSIVE SURVEY AND INVESTIGATION OF THE ENTIRE NATIONAL
ECONOMY - WHICH CONGRESS ALONE HAS POWER AND FACILITIES TO MAKE - CAN
INDICATE THE NEED FOR, AS WELL AS JUSTIFY, RESTRICTING THE TAXING POWER
OF A STATE SO AS TO PROVIDE AGAINST CONJECTURED TAXATION BY MORE THAN
ONE STATE ON IDENTICAL INCOME.  A BROAD AND DELIBERATE LEGISLATIVE
INVESTIGATION - WHICH NO COURT CAN MAKE - MAY INDICATE TO CONGRESS THAT
A WISE POLICY FOR THE NATIONAL ECONOMY DEMANDS THAT EACH STATE IN WHICH
AN INTERSTATE BUSINESS OPERATES BE PERMITTED TO APPLY A NON
DISCRIMINATORY TAX TO THE GROSS RECEIPTS OF THAT BUSINESS EITHER
BECAUSE OF ITS SIZE AND VOLUME OR PARTIALLY TO OFFSET THE TENDENCY
TOWARD CENTRALIZATION OF THE NATION'S BUSINESS.  FN17  CONGRESS MAY
FIND THAT TO SHELTER INTERSTATE COMMERCE IN A TAX EXEMPT REFUGE - IN
THE MANNER OF THE JUDGMENT HERE - IS TO GRANT THAT COMMERCE A
PRIVILEGED STATUS OVER INTRASTATE BUSINESS, CONTRARY TO THE NATIONAL
WELFARE.    IT IS INDICATED, HOWEVER, THAT WASHINGTON MIGHT HAVE
VALIDLY APPORTIONED ITS FAIR SHARE OF APPELLANT'S GROSS INCOME FOR
TAXATION.  TO SAY THAT A SINGLE STATE CAN - SUBJECT TO SUPERVISION AND
APPROVAL BY THIS COURT - ENACT REGULATIONS APPORTIONING ITS SHARE OF
THE TAXABLE INCOME FROM INTERSTATE COMMERCE, IS TO TRANSFER THE
CONSTITUTIONAL POWER TO REGULATE SUCH COMMERCE FROM CONGRESS TO THE
STATES AND FEDERAL COURTS TO WHICH THE CONSTITUTION GIVES NO SUCH
POWER.  THE CONSTITUTION CONTEMPLATES THAT CONGRESS ALONE SHALL PROVIDE
FOR NECESSARY NATIONAL UNIFORMITY IN RULES GOVERNING FOREIGN AND
INTERSTATE COMMERCE.  FN18  RULES TO FURTHER FREE TRADE AMONG THE
STATES BY APPORTIONMENT OR DIVISION OF TAXES ON SUCH COMMERCE, ARE
REGULATIONS.  BOTH THE NECESSITY FOR SUCH A RULE, AND THE DETERMINATION
AND ENACTMENT OF A REGULATION TO PUT IT INTO EFFECT, CALL FOR
FACILITIES AND POWERS POSSESSED NEITHER BY A STATE NOR BY THE COURTS. 
A STATE LEGISLATURE ATTEMPTING TO PUT UPON INTERSTATE BUSINESS ITS
APPORTIONED SHARE OF THE BURDEN OF TAXATION IS "FACED WITH THE
IMPOSSIBILITY OF ALLOCATING SPECIFICALLY THE PROFITS EARNED BY THE
PROCESSES CONDUCTED WITHIN" THE BORDERS OF THE STATE.  FN19  IF AN
"APPORTIONMENT" BETWEEN STATES OF TAXES ON INTERSTATE BUSINESS IS TO BE
MADE, IT CANNOT BE ACCOMPLISHED WITHOUT NATIONAL INQUIRY AND NATIONAL
ACTION. 

WHILE SOME FORMULAS FOR APPORTIONMENT DEVISED BY STATES HAVE BEEN
APPROVED BY THIS COURT,  FN20 OTHERS HAVE BEEN INVALIDATED.  FN21  A
FORMULA APPLIED BY CONNECTICUT WAS HELD VALID,  FN22  BUT A SIMILAR
FORMULA WAS HELD INVALID WHEN ADOPTED IN NORTH CAROLINA.  FN23  THE
LITIGATION WHICH HAS FOLLOWED IN THE WAKE OF STATE ATTEMPTS AT
APPORTIONMENT HAS CONFIRMED, IN THE OPINION OF MANY, THE WISDOM OF THE
FOUNDERS IN DENYING TO THE STATES AND COURTS, AND GRANTING TO THE
CONGRESS, EXCLUSIVE POWER OVER INTERSTATE COMMERCE.  DEPARTURES FROM
THIS PRINCIPLE HAVE, AS HERE, LEFT INTRA-STATE BUSINESSES - USUALLY
COMPARATIVELY SMALL - TO BEAR THE ENTIRE BURDEN OF TAXES INVALIDATED AS
TO INTERSTATE BUSINESSES, WHILE INTERSTATE BUSINESSES - USUALLY
CONDUCTED ON A LARGE SCALE - HAVE BEEN EXEMPTED.  SHOULD WASHINGTON
ATTEMPT AN APPORTIONMENT, THE FATE OF ITS FORMULA WOULD BE UNCERTAIN
UNTIL THIS COURT PASSES UPON ITS FAIRNESS.  A STATE'S INABILITY TO
OBTAIN NECESSARY DATA AND INFORMATION AS A BASIS OF A FORMULA FOR
APPORTIONMENT BETWEEN ITSELF AND THE OTHER FORTY-SEVEN STATES,
INDICATES IN ADVANCE THAT ITS APPORTIONMENT MIGHT BE INVALIDATED.  WHEN
STATE STATUTES OF APPORTIONMENT COME HERE THIS COURT IS UNABLE TO MAKE
THE BROAD NATIONAL INQUIRY NECESSARY TO REACH AN INFORMED CONCLUSION ON
THIS QUESTION OF ECONOMIC POLICY. 

BUT CONGRESS HAS BOTH THE FACILITIES FOR ACQUIRING THE NECESSARY
DATA, AND THE CONSTITUTIONAL POWER TO ACT UPON IT.  "THE POWER OVER
COMMERCE  ...  WAS ONE OF THE PRIMARY OBJECTS FOR WHICH THE PEOPLE OF
AMERICA ADOPTED THEIR GOVERNMENT, AND MUST HAVE BEEN CONTEMPLATED IN
FORMING IT."  FN24 THE "DISASTROUS EXPERIENCES UNDER THE CONFEDERATION
WHEN THE STATES VIED IN DISCRIMINATORY MEASURES AGAINST EACH OTHER"
FN25  UNITED THE CONSTITUTIONAL CONVENTION IN THE CONVICTION THAT SOME
BRANCH OF THE FEDERAL GOVERNMENT SHOULD HAVE EXCLUSIVE POWER TO
REGULATE COMMERCE AMONG THE STATES AND WITH FOREIGN NATIONS.  OUR
CONSTITUTION ADOPTED BY THAT CONVENTION DIVIDED THE POWERS OF
GOVERNMENT BETWEEN THREE DEPARTMENTS, CONGRESS, THE EXECUTIVE AND THE
JUDICIARY.  IT ALLOTTED TO CONGRESS ALONE THE "POWER  ...  TO REGULATE
COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL STATES,  ...  "
CONGRESS IS THE ONLY DEPARTMENT OF OUR GOVERNMENT - STATE OR FEDERAL -
VESTED WITH AUTHORITY TO DETERMINE WHETHER "MULTIPLE TAXATION" IS
INJURIOUS TO THE NATIONAL ECONOMY; WHETHER NATIONAL REGULATIONS FOR
DIVISION OF TAXES MEASURED BY INTERSTATE COMMERCE GROSS RECEIPTS SHOULD
OR SHOULD NOT BE ADOPTED; AND WHAT REGULATIONS, IF ANY, SHOULD PROTECT
INTERSTATE COMMERCE FROM "MULTIPLE TAXATION."  IT "IS THE FUNCTION OF
THIS COURT TO INTERPRET AND APPLY THE LAW ALREADY ENACTED, BUT NOT
UNDER THE GUISE OF CONSTRUCTION TO PROVIDE A MORE COMPREHENSIVE SCHEME
OF REGULATION THAN CONGRESS HAS DECIDED UPON.  NOR, IN THE ABSENCE OF
FEDERAL ACTION, MAY WE DENY EFFECT TO THE LAWS OF THE STATE ENACTED
WITHIN THE FIELD WHICH IT IS ENTITLED TO OCCUPY UNTIL ITS AUTHORITY IS
LIMITED THROUGH THE EXERTION BY CONGRESS OF ITS PARAMOUNT
CONSTITUTIONAL POWER."  FN26 

UNTIL 1936,  FN27  THIS COURT HAD NEVER STRICKEN DOWN - AS VIOLATING
THE COMMERCE CLAUSE - A UNIFORM AND NON-DISCRIMINATORY STATE PRIVILEGE
TAX MEASURED BY GROSS RECEIPTS, AND CONSTITUTING AN INTEGRAL ELEMENT OF
A COMPREHENSIVE STATE TAX PROGRAM.  IN PHILADELPHIA & SOUTHERN S.S. CO.
V. PENNSYLVANIA, 122 U.S. 326, DECIDED HALF A CENTURY AGO AND RELIED
UPON TO SUPPORT THE JUDGMENT HERE, THIS COURT DID NOT DETERMINE THAT
SUCH A GENERAL BUSINESS TAX - APPLIED TO ALL BUSINESSES WITHIN A STATE
COULD NOT BE MEASURED BY INTERSTATE COMMERCE GROSS RECEIPTS.  ON THE
CONTRARY, THE COURT POINTED OUT THAT THE INVALIDATED TAX WAS "A TAX ON
TRANSPORTATION ONLY" (P. 345), AND THAT EVEN ONE ENGAGED IN
TRANSPORTATION COULD "LIKE ANY OTHER CITIZEN,  ...  BE PERSONALLY TAXED
FOR THE AMOUNT OF HIS PROPERTY OR ESTATE, WITHOUT REGARD TO THE SOURCE
FROM WHICH IT WAS DERIVED, WHETHER FROM COMMERCE, OR BANKING, OR ANY
OTHER EMPLOYMENT."  THAT, AS THE COURT MADE CLEAR, WAS "AN ENTIRELY
DIFFERENT THING FROM LAYING A SPECIAL TAX UPON HIS RECEIPTS IN A
PARTICULAR EMPLOYMENT."  (P. 342.)  SINCE THE PHILADELPHIA S.S. CO.
CASE, THIS COURT HAS SUSTAINED MANY STATE TAXES MEASURED BY RECEIPTS
BOTH FROM INTERSTATE AND INTRA-STATE COMMERCE.  FN28  IT WAS NOT UNTIL
THE DECISIONS IN THE CASES OF CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S.
292, 296, AND UNITED STATES GLUE CO. V. OAK CREEK, 247 U.S. 321, 329,
DECIDED 1917 AND 1918, RESPECTIVELY, THAT THIS COURT FIRST TENTATIVELY
ANNOUNCED, BY WAY OF DICTA, A RULE CONDEMNING STATE TAXES BASED ON
GROSS RECEIPTS FROM INTERSTATE COMMERCE.  THE FULL-BLOWN RULE UNDER
WHICH THE FEDERAL COURTS STRIKE DOWN GENERALLY APPLIED NON
DISCRIMINATORY STATE TAXES MEASURED BY GROSS RECEIPTS FROM INTERSTATE
COMMERCE RIPENED INTO ITS PRESENT EXPANDED FORM ONLY EIGHT MONTHS AGO
(ADAMS MANUFACTURING CO. V. STOREN, MAY 16, 1938).  THIS RECENT
JUDICIAL RESTRICTION - STILL LESS THAN A YEAR OLD - ON THE POWER OF THE
STATES TO LEVY GENERAL GROSS RECEIPTS TAXES, CANNOT BE JUSTIFIED OR
VALIDATED BY CLAIMING PRESTIGE FROM ADVANCED AGE. 

SINCE THE CONSTITUTION GRANTS SOLE AND EXCLUSIVE POWER TO CONGRESS TO
REGULATE COMMERCE AMONG THE STATES, REPEATED ASSUMPTION OF THIS POWER
BY THE COURTS - EVEN OVER A LONG PERIOD OF YEARS - COULD NOT MAKE THIS
ASSUMPTION OF POWER CONSTITUTIONAL.  APRIL 25, 1938, THIS COURT
OVERRULED AND RENOUNCED AN UNCONSTITUTIONAL ASSUMPTION OF POWER BY THE
FEDERAL COURTS BASED ON A DOCTRINE EXTENDING BACK THROUGH AN UNBROKEN
LINE OF AUTHORITY TO 1842.  FN29  IN OVERRULING, IT WAS SAID: "WE
MERELY DECLARE THAT IN APPLYING THE DOCTRINE (DECLARED
UNCONSTITUTIONAL) THIS COURT AND THE LOWER COURTS HAVE INVADED RIGHTS
WHICH IN OUR OPINION ARE RESERVED BY THE CONSTITUTION TO THE SEVERAL
STATES."  (AT PAGE 80.)  A CENTURY OLD RULE HAD PRODUCED "INJUSTICE AND
CONFUSION" AND "THE UNCONSTITUTIONALITY OF THE COURSE PURSUED  ...
(HAD BECOME) CLEAR  ...  "  (PP. 77, 78.)  THAT DECISION RESTED UPON
THE SOUND PRINCIPLE THAT THE RULE OF STARE DECISIS CANNOT CONFER POWERS
UPON THE COURTS WHICH THE INEXORABLE COMMAND OF THE CONSTITUTION SAYS
THEY SHALL NOT HAVE.  STATE OBEDIENCE TO AN UNCONSTITUTIONAL ASSUMPTION
OF POWER BY THE JUDICIAL BRANCH OF GOVERNMENT, AND INACTION BY THE
CONGRESS, CANNOT AMEND THE CONSTITUTION BY CREATING AND ESTABLISHING A
NEW "FEATURE OF OUR CONSTITUTIONAL SYSTEM."  NO PROVISION OF THE
CONSTITUTION AUTHORIZES ITS AMENDMENT IN THIS MANNER. 

IT IS ESSENTIAL TODAY, AS AT THE TIME OF THE ADOPTION OF THE
CONSTITUTION, THAT COMMERCE AMONG THE STATES AND WITH FOREIGN NATIONS
BE LEFT FREE FROM DISCRIMINATORY AND RETALIATORY BURDENS IMPOSED BY THE
STATES.  IT IS OF EQUAL IMPORTANCE, HOWEVER, THAT THE JUDICIAL
DEPARTMENT OF OUR GOVERNMENT SCRUPULOUSLY OBSERVE ITS CONSTITUTIONAL
LIMITATIONS AND THAT CONGRESS ALONE SHOULD ADOPT A BROAD NATIONAL
POLICY OF REGULATION - IF OTHERWISE VALID STATE LAWS COMBINE TO HAMPER
THE FREE FLOW OF COMMERCE.  DOUBTLESS, MUCH CONFUSION WOULD BE AVOIDED
IF THE COURTS WOULD REFRAIN FROM RESTRICTING THE ENFORCEMENT OF VALID,
NON-DISCRIMINATORY STATE TAX LAWS.  ANY BELIEF THAT CONGRESS HAS FAILED
TO TAKE COGNIZANCE OF THE PROBLEMS OF CONJECTURED "MULTIPLE TAXATION"
OR "APPORTIONMENT" BY EXERTING ITS EXCLUSIVE POWER OVER INTERSTATE
COMMERCE, IS AN INADEQUATE REASON FOR THE JUDICIAL BRANCH OF GOVERNMENT
- WITHOUT CONSTITUTIONAL POWER - TO ATTEMPT TO PERFORM THE DUTY
CONSTITUTIONALLY REPOSED IN CONGRESS.  I WOULD RETURN TO THE RULE THAT
EXCEPT FOR STATE ACTS DESIGNED TO IMPOSE DISCRIMINATORY BURDENS ON
INTERSTATE COMMERCE BECAUSE IT IS INTERSTATE - CONGRESS ALONE MUST
"DETERMINE HOW FAR (INTERSTATE COMMERCE)  ...  SHALL BE FREE AND
UNTRAMMELLED, HOW FAR IT SHALL BE BURDENED BY DUTIES AND IMPOSTS, AND
HOW FAR IT SHALL BE PROHIBITED."  FN30 

FOR THESE AND OTHER REASONS SET OUT ELSEWHERE  FN31  I BELIEVE THE
JUDGMENT OF THE SUPREME COURT OF WASHINGTON SHOULD BE AFFIRMED. 

FN1  HENNEFORD V. SILAS MASON CO., 300 U.S. 577, 583. 

FN2  CF. POSTAL TELEGRAPH-CABLE CO. V. RICHMOND, 249 U.S. 252, 259. 

FN3  FIFTH BIENNIAL REPORT, TAX COMMISSION OF WASHINGTON; "THE SALES
TAX IN THE AMERICAN STATES," HAIG & SHOUP (1934), P. 309 ET SEQ. 

FN4  AT LEAST ELEVEN STATES - MOST OF THEM RECENTLY - HAVE IMPOSED
GROSS INCOME OR GROSS SALES TAXES UPON THE PRIVILEGE OF DOING BUSINESS
WITHIN THEIR RESPECTIVE BORDERS.  SEE, "TAX SYSTEMS OF THE WORLD," 7TH
ED. (CCH), PP. 153 TO 156.  WHILE THESE LAWS VARY IN APPLICATION,
SEVERAL MAY BE GENERALLY CHARACTERIZED AS SIMILAR TO THE WASHINGTON
TAX.  SEE, "STATE LAW INDEX" NO. 5, P. 673(LEGISLATIVE REFERENCE
SERVICE, LIBRARY OF CONGRESS); FIFTH BIENNIAL REPORT, SUPRA; DISSENT,
ADAMS MANUFACTURING CO. V. STOREN, 304 U.S. 307, 317, FOOTNOTE 4. 

FN5  FIFTH BIENNIAL REPORT, SUPRA, P. 8. 

FN6  CF. CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450, 453, 454;
UNITED STATES EXPRESS CO. V. MINNESOTA, 223 U.S. 335, 345, 347. 

FN7  WOODRUFF V. PARHAM, 8 WALL.  123, 137. 

FN8  WHILE ABOUT 25% OF APPELLANT'S BUSINESS RELATES TO THE SALE OF
OREGON-GROWN APPLES, THE STATE OF WASHINGTON MADE NO CONTENTION THAT IT
COULD UNDER ITS STATUTE IMPOSE A TAX UPON APPELLANT'S RECEIPTS FROM THE
SALE OF OREGON-GROWN APPLES.  THE JUDGMENT OF THE STATE COURT FROM
WHICH APPEAL WAS TAKEN EXPRESSLY STATES:  "THE COURT  ...  CONSIDERED
...  THE STIPULATION BETWEEN THE PARTIES THAT THE STATE MAKES NO CLAIM
TO THE TAX UPON THE OREGON BUSINESS OF  ... (APPELLANT) EVEN THOUGH IT
CLEARS THROUGH  ...  (APPELLANT'S) SEATTLE OFFICE," AND WAS "OF THE
OPINION THAT THE BUSINESS OF  ...  (APPELLANT), ORIGINATING IN THE
STATE OF WASHINGTON, IS TAXABLE."  IN AFFIRMING THIS JUDGMENT THE
SUPREME COURT OF WASHINGTON POINTED OUT THAT APPELLANT WAS DENYING "THE
STATE TAX COMMISSION'S CLAIM OF A TAX LIABILITY ON THE TOTAL COMMISSION
APPELLANT RECEIVES FROM THE GROWERS FOR WASHINGTON-GROWN FOOD SOLD AND
SHIPPED TO PARTS WITHIN AND WITHOUT THIS STATE ..." 

FN9  WELTON V. MISSOURI, 91 U.S. 275; WALLING V. MICHIGAN, 116 U.S.
446; DARNELL & SON CO. V. MEMPHIS, 208 U.S. 113; CF. PHILADELPHIA &
SOUTHERN S.S. CO. V. PENNSYLVANIA, 122 U.S. 326, 342, 344-5. 

FN10  HENNEFORD V. SILAS MASON CO., SUPRA, AT 587. 

FN11  SEE NOTE 9, SUPRA; CF. SONNEBORN BROS. V. CURETON, 262 U.S.
506, 516; PACIFIC CO. V. JOHNSON, 285 U.S. 480, 493. 

FN12  NEW YORK RAPID TRANSIT CORP. V. NEW YORK, 303 U.S. 573, 582. 

FN13  ROBBINS V. SHELBY COUNTY TAXING DISTRICT, 120 U.S. 489;
CALDWELL V. NORTH CAROLINA, 187 U.S. 622; REAL SILK MILLS V. PORTLAND,
268 U.S. 325. 

FN14  PALMOLIVE CO. V. CONWAY, 43 F.2D 226, 230, CERT. DEN., 287 U.S.
601; SEE MAGILL "ALLOCATION OF INCOME BY CORPORATE CONTRACT," 44
HARVARD LAW REVIEW 935; "INTERSTATE ALLOCATION OF CORPORATE INCOME FOR
TAXING PURPOSES" (NOTE) XL YALE LAW REVIEW 1273; HUSTON "ALLOCATION OF
CORPORATE NET INCOME FOR PURPOSES OF TAXATION," XXVI ILL. LAW REVIEW
725; BRECKENRIDGE, "TAX ESCAPE BY MANIPULATIONS OF HOLDING COMPANY," 9
NO. CAR.  LAW REVIEW 189; BERLE AND MEANS, "THE MODERN CORPORATION AND
PRIVATE PROPERTY" (1934), P. 202 ET SEQ. 

FN15  CARDOZO, J., DISSENTING, STEWART DRY GOODS CO. V. LEWIS, 294
U.S. 550, 576. 

FN16  NEW YORK RAPID TRANSIT CORP. V. NEW YORK, SUPRA, 582-3. 

FN17  CF. BRANDEIS, J., DISSENTING, LIGGETT CO. V. LEE, 288 U.S. 517,
574:  "BUSINESSES MAY BECOME AS HARMFUL TO THE COMMUNITY BY EXCESSIVE
SIZE, AS BY MONOPOLY OR THE COMMONLY RECOGNIZED RESTRAINTS OF TRADE. 
IF THE STATE SHOULD CONCLUDE THAT BIGNESS IN RETAIL MERCHANDISING AS
MANIFESTED IN CORPORATE CHAIN STORES MENACES THE PUBLIC WELFARE, IT
MIGHT PROHIBIT THE EXCESSIVE SIZE OR EXTENT OF THAT BUSINESS  ...  IT
WAS SAID IN UNITED STATES V. U.S. STEEL CORP., 251 U.S. 417, 451, THAT
THE SHERMAN ANTI-TRUST ACT DID NOT FORBID LARGE AGGREGATIONS; BUT THE
POWER OF CONGRESS TO PROHIBIT CORPORATIONS OF A SIZE DEEMED EXCESSIVE
FROM ENGAGING IN INTERSTATE COMMERCE WAS NOT QUESTIONED." 

FN18  WELTON V. MISSOURI, SUPRA, 279, 280. 

FN19  UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, 254 U.S. 113, 121. 

FN20  UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, SUPRA; BASS, RATCLIFF
& GRETTON V. TAX COMM'N, 266 U.S. 271; CF. NATIONAL LEATHER CO. V.
MASSACHUSETTS, 277 U.S. 413.    FN21  HANS REES' SONS V. NORTH
CAROLINA, 283 U.S. 123; CF. WALLACE V. HINES, 253 U.S. 66; ALPHA
PORTLAND CEMENT CO. V. MASSACHUSETTS, 268 U.S. 203. 

FN22  UNDERWOOD CASE, SUPRA. 

FN23  REES' CASE, SUPRA. 

FN24  GIBBONS V. OGDEN, 9 WHEAT.  1, 190. 

FN25  THE MINNESOTA RATE CASES, 230 U.S. 352, 398.  SEE ALSO HOUSTON,
E. & W.T. RY. CO. V. UNITED STATES, (THE SHREVEPORT CASE), 234 U.S.
342, 350.  "THE POWER TO REGULATE COMMERCE AMONG THE SEVERAL STATES WAS
VESTED IN CONGRESS IN ORDER TO SECURE EQUALITY AND FREEDOM IN
COMMERCIAL INTERCOURSE AGAINST DISCRIMINATING STATE LEGISLATION.  ...
"  RAILROAD CO. V. RICHMOND, 19 WALL.  584, 589.  SEE ALSO, COUNTY OF
MOBILE V. KIMBALL, 102 U.S. 691, 697. 

FN26  THE MINNESOTA RATE CASES, SUPRA, 433. 

FN27  FISHER'S BLEND STATION V. TAX COMM'N, 297 U.S. 650, SEE ADAMS
MANUFACTURING CO. V. STOREN, 304 U.S. 307. 

FN28  SEE NOTES 17, 18 AND 19, DISSENT, ADAMS MANUFACTURING CO. V.
STOREN, SUPRA, P. 329. 

FN29  ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 

FN30  WELTON V. MISSOURI, SUPRA, 280. 

FN31  SEE DISSENT, ADAMS MFG. CO. V. STOREN, 304 U.S. 307, 316. 
..END :










PRINCESS LIDA V. THOMPSON, 305 U.S. 456 


NO. 118.  ARGUED NOVEMBER 17, 18, 1938.  - DECIDED JANUARY 3, 1939.  -
329 PA. 497 - 198 A. 58, AFFIRMED. 


1.  THE JURISDICTION OF THE COURT OF COMMON PLEAS OF THE STATE OF
PENNSYLVANIA UNDER A BILL TO COMPEL SPECIFIC PERFORMANCE OF AN
AGREEMENT INTER PARTES CREATING A TRUST CEASED WHEN THE COURT'S DECREE
REQUIRING SUCH PERFORMANCE WAS COMPLIED WITH AND SATISFIED.  P. 461. 

2.  TWO SURVIVING TRUSTEES OF A VOLUNTARY TRUST FILED AN ACCOUNT, FOR
THEMSELVES AND FOR A DECEASED TRUSTEE, IN A COURT OF COMMON PLEAS OF
PENNSYLVANIA.  THEREAFTER, TWO OF THE FIVE CESTUIS QUE TRUSTENT SUED
THE SURVIVING TRUSTEES AND THE ADMINISTRATOR OF THE DECEASED ONE, IN A
FEDERAL COURT IN PENNSYLVANIA, CHARGING MISMANAGEMENT AND PRAYING FOR
AN ACCOUNTING AND RESTITUTION, FOR REMOVAL OF THE DEFENDANT TRUSTEES,
AND THAT ALL TRUSTEES UNDER THE AGREEMENT BE REQUIRED TO GIVE BOND, AND
FOR GENERAL RELIEF.  ONE OF THE OTHER BENEFICIARIES APPEARED IN THE
COMMON PLEAS PROCEEDING AND EXCEPTED TO THE TRUSTEES' ACCOUNT.  HELD: 

(1)  THAT UNDER PENNSYLVANIA STATUTES, THE STATE COURT, UPON THE
FILING OF THE ACCOUNT, GAINED JURISDICTION OVER THE TRUST QUASI IN
REM.  SHELBY V. BACON, 10 HOW.  56, LIMITED.  P. 462. 

(2)  THAT THE FEDERAL COURT WAS WITHOUT JURISDICTION IN THE SUIT
BEFORE IT, INVOLVING AS IT DID CONTROL OF THE TRUST RES AND
ADMINISTRATION, ALREADY WITHIN THE EXCLUSIVE JURISDICTION OF THE STATE
COURT, AND WAS WITHOUT POWER TO ENJOIN PARTIES FROM PROSECUTING THE
STATE PROCEEDING.  P. 465. 

(3)  THAT THE STATE COURT PROPERLY ENJOINED PARTIES FROM FURTHER
PROCEEDING IN THE FEDERAL COURT.  P. 467. 

3.  WHERE THE JUDGMENT SOUGHT IS STRICTLY IN PERSONAM, BOTH THE STATE
COURT AND THE FEDERAL COURT, HAVING CONCURRENT JURISDICTION, MAY
PROCEED WITH THE LITIGATION AT LEAST UNTIL JUDGMENT IS OBTAINED IN ONE
OF THEM WHICH MAY BE SET UP AS RES JUDICATA IN THE OTHER.  P. 466. 

4.  BUT IF THE TWO SUITS ARE IN REM, OR QUASI IN REM, SO THAT THE
COURT, OR ITS OFFICER, HAS POSSESSION OR MUST HAVE CONTROL OF THE
PROPERTY WHICH IS THE SUBJECT OF THE LITIGATION IN ORDER TO PROCEED
WITH THE CAUSE AND GRANT THE RELIEF SOUGHT, THE JURISDICTION OF THE ONE
COURT MUST YIELD TO THAT OF THE OTHER.  ID. 

THE PRINCIPLE APPLICABLE TO BOTH FEDERAL AND STATE COURTS THAT THE
COURT FIRST ASSUMING JURISDICTION OVER PROPERTY MAY MAINTAIN AND
EXERCISE THAT JURISDICTION TO THE EXCLUSION OF THE OTHER, IS NOT
RESTRICTED TO CASES WHERE PROPERTY HAS BEEN ACTUALLY SEIZED UNDER
JUDICIAL PROCESS BEFORE A SECOND SUIT IS INSTITUTED, BUT APPLIES AS
WELL WHERE SUITS ARE BROUGHT TO MARSHAL ASSETS, ADMINISTER TRUSTS, OR
LIQUIDATE ESTATES, AND IN SUITS OF A SIMILAR NATURE WHERE, TO GIVE
EFFECT TO ITS JURISDICTION, THE COURT MUST CONTROL THE PROPERTY.  ID. 

AN ACTION IN THE FEDERAL COURT TO ESTABLISH THE VALIDITY OR THE
AMOUNT OF A CLAIM, IN RESPECT OF A TRUST, CONSTITUTES NO INTERFERENCE
WITH THE STATE COURT'S POSSESSION OR CONTROL OF A RES.  ID. 

PRINCESS LIDA OF THURN AND TAXIS ET AL. V. THOMPSON ET AL., TRUSTEES. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

CERTIORARI, POST, P. 582, TO REVIEW A DECREE WHICH AFFIRMED AN ORDER
OF A COURT OF COMMON PLEAS OF PENNSYLVANIA ENJOINING THE PETITIONERS
HERE FROM PROSECUTING A SUIT IN A FEDERAL COURT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER THE EXERCISE OF JURISDICTION
BY A STATE COURT OVER THE ADMINISTRATION OF A TRUST DEPRIVES A FEDERAL
COURT OF JURISDICTION OF A LATER SUIT INVOLVING THE SAME SUBJECT
MATTER. 

DECEMBER 6, 1906, GERALD P. FITZGERALD, A CITIZEN OF IRELAND, AND HIS
WIFE LIDA, ENTERED INTO AN AGREEMENT WITH EACH OTHER AND WITH JOSIAH V.
THOMPSON, CHARLES E. LENHART, AND FITZGERALD, AS TRUSTEES, WHICH
RECITED THE MARRIAGE OF THE TWO FIRST NAMED, THAT THEY HAD THREE SONS,
AND THAT, ON DECEMBER 5, 1906, LIDA HAD OBTAINED A DECREE OF DIVORCE IN
IRELAND.  THE AGREEMENT PROVIDED FOR PAYMENTS OF ALIMONY BY GERALD TO
LIDA PENDING AN ABSOLUTE DIVORCE (WHICH WAS EVENTUALLY GRANTED), AND
FOR PAYMENTS THEREAFTER BY GERALD TO THE TRUSTEES FOR THE BENEFIT OF
LIDA AND THE CHILDREN, TO BE MADE OUT OF HIS SHARE OF THE PROFITS OF
TWO PARTNERSHIPS OF WHICH HE WAS A MEMBER.  FROM THESE PROFITS GERALD
WAS TO PAY THE TRUSTEES FOR LIDA'S BENEFIT AN ANNUITY OF $15,000 FOR
THE FIRST THREE YEARS AND $20,000 THEREAFTER.  HE WAS FURTHER TO PAY
ANY DIFFERENCE BETWEEN THE AMOUNT OF THE ANNUITY AND ONE-THIRD OF HIS
SHARE OF THE PROFITS ANNUALLY UNTIL A FUND SHOULD BE ESTABLISHED IN THE
HANDS OF THE TRUSTEES AMOUNTING TO $300,000, IN WHICH LIDA, THE SONS,
AND GERALD WERE GIVEN INTERESTS, EITHER OF INCOME OR PRINCIPAL OR
BOTH.  IN THE EVENT OF DEATH, RESIGNATION, OR DISABILITY OF A TRUSTEE,
OR A SUCCESSOR TRUSTEE, THE VACANCY WAS TO BE FILLED BY APPOINTMENT BY
THE TWO REMAINING TRUSTEES, OR, ON THEIR FAILURE TO APPOINT, BY THE
COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA, ON THE PETITION
OF A REMAINING TRUSTEE OR OF LIDA. 

LIDA AND THE THREE SONS ARE LIVING.  GERALD HAS ASSIGNED HIS INTEREST
IN THE TRUST TO THE SECOND NATIONAL BANK OF UNIONTOWN, PENNSYLVANIA. 

GERALD PERFORMED THE AGREEMENT UNTIL JUNE, 1910, WHEN HE REPUDIATED
IT.  THOMPSON, ONE OF THE TRUSTEES, LIDA AND HER SONS, BROUGHT SUIT IN
EQUITY IN THE COMMON PLEAS COURT OF FAYETTE COUNTY, PENNSYLVANIA,
SEEKING PERFORMANCE OF THE AGREEMENT BY GERALD AND OTHER RELIEF. 
GERALD ANSWERED PRAYING A DECLARATION THAT THE AGREEMENT WAS VOID. 
AFTER A HEARING THE COURT ENTERED A DECREE SUSTAINING THE AGREEMENT;
ORDERING GERALD TO ACCOUNT AND TO PAY WHAT MIGHT BE SHOWN TO BE DUE;
REMOVING HIM AS A TRUSTEE; FIXING A LIEN UPON HIS PARTNERSHIP
INTERESTS; AND RESTRAINING HIM FROM ENCUMBERING OR CONVEYING THEM UNTIL
THE $300,000 FUND CONTEMPLATED BY THE AGREEMENT SHOULD BE ACCUMULATED
IN THE HANDS OF THE TRUSTEES. 

IN MARCH, 1915, THE TRUSTEES THEN IN OFFICE PETITIONED FOR LEAVE TO
AMEND THE AGREEMENT AND FOR MODIFICATION OF THE EARLIER DECREE TO
PROVIDE THAT GERALD SHOULD PAY AND SECURE TO THE TRUSTEES THE PAYMENT
OF SUMS SUFFICIENT TO CREATE TWO FUNDS, ONE OF $400,000 FOR LIDA'S
BENEFIT AND THE OTHER OF $300,000 PRINCIPALLY FOR THE SONS' BENEFIT. 
THE COURT APPROVED THE PETITION AND MODIFIED ITS FORMER DECREE
ACCORDINGLY.  MAY 25, 1925, THE TRUSTEES THEN IN OFFICE ACKNOWLEDGED
RECEIPT OF ALL THE SUMS DUE UNDER THE DECREE OF THE COURT AS MODIFIED
AND DIRECTED THAT SATISFACTION OF THE DECREE BE ENTERED OF RECORD. 
THIS WAS DONE JUNE 3, 1925. 

OCTOBER 9, 1925, THE THREE ACTING TRUSTEES FILED AN ACCOUNT IN THE
COMMON PLEAS COURT, WHICH, IN THE ABSENCE OF EXCEPTIONS, WAS
CONFIRMED.  JULY 7, 1930, A SECOND AND PARTIAL ACCOUNT WAS FILED IN THE
SAME COURT BY TWO SURVIVING TRUSTEES ON BEHALF OF THEMSELVES AND A
DECEASED TRUSTEE. 

ON THE NEXT DAY LIDA AND HER SON JOHN BROUGHT SUIT IN EQUITY IN THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AGAINST THE TWO TRUSTEES AND THE ADMINISTRATORS OF THE DECEASED
TRUSTEE, ALLEGING MISMANAGEMENT OF THE TRUST FUNDS AND PRAYING THAT THE
TRUSTEES BE REMOVED AND ALL THE DEFENDANTS BE MADE TO ACCOUNT AND REPAY
THE LOSSES OF THE ESTATE.  THEREAFTER THE COURT OF COMMON PLEAS
EXTENDED THE TIME FOR FILING EXCEPTIONS TO THE SECOND ACCOUNT AND, ON
FEBRUARY 16, 1931, EXCEPTIONS WERE FILED BY GERALD P. FITZGERALD, JR.
MEANTIME THE TRUSTEES MOVED TO DISMISS THE BILL IN THE FEDERAL COURT
FOR LACK OF INDISPENSABLE PARTIES AND BECAUSE THE STATE COURT HAD
EXCLUSIVE JURISDICTION OF THE CONTROVERSY.  MAY 12, 1931, THE FEDERAL
COURT REFUSED THE MOTION TO DISMISS AND REQUIRED THE DEFENDANTS TO
ANSWER, DECLARING THAT IT WOULD NOT DECIDE THE QUESTION OF JURISDICTION
UNTIL AFTER ANSWERS HAD BEEN FILED.  MAY 18, 1931, THE DEFENDANTS
ANSWERED SETTING UP THAT THE CONTROVERSY WAS WITHIN THE EXCLUSIVE
JURISDICTION OF THE STATE COURT.  NOTHING FURTHER WAS DONE IN THE
FEDERAL SUIT UNTIL APRIL 17, 1937, WHEN THE PLAINTIFFS AMENDED THEIR
BILL.  MAY 5, 1937, THE TRUSTEES ANSWERED THE AMENDMENT.  MEANTIME, ON
MAY 1, 1937, THE TRUSTEES HAD PRESENTED A PETITION IN THE STATE COURT
FOR A RULE UPON THE PLAINTIFFS IN THE DISTRICT COURT, THE PETITIONERS
HEREIN, TO SHOW CAUSE WHY THEY SHOULD NOT BE RESTRAINED FROM
PROSECUTING THEIR SUIT IN THE FEDERAL COURT.  AFTER AN ANSWER BY LIDA
DENYING THAT THE COMMON PLEAS COURT HAD CONTROL OR POSSESSION OF THE
TRUST FUNDS OR THAT ANY CONTROVERSY WAS THEREIN PENDING WHEN SUIT WAS
INSTITUTED IN THE FEDERAL COURT, THE RULE WAS MADE ABSOLUTE JUNE 17,
1937.  JULY 6, 1937, JOHN FITZGERALD, ONE OF THE PETITIONERS, APPLIED
TO THE FEDERAL COURT FOR AN INJUNCTION TO RESTRAIN THE DEFENDANTS IN
THE CASE THERE PENDING, THE RESPONDENTS HEREIN, FROM FURTHER
PROSECUTION OF THE PROCEEDINGS IN THE STATE COURT.  ON THE SAME DAY THE
PETITIONERS TOOK AN APPEAL FROM THE ORDER OF THE COMMON PLEAS COURT TO
THE SUPREME COURT OF PENNSYLVANIA.  JULY 19, 1937, THE TRUSTEES FILED
IN THE COMMON PLEAS COURT A THIRD AND PARTIAL ACCOUNT OF THE TRUST TO
WHICH EXCEPTIONS WERE FILED.  TESTIMONY WAS THEREAFTER TAKEN ON THE
EXCEPTIONS TO THE SECOND ACCOUNT.  SEPTEMBER 18, 1937, THE FEDERAL
COURT TEMPORARILY ENJOINED THE DEFENDANTS IN THAT COURT, THE
RESPONDENTS HEREIN, FROM FURTHER PROSECUTION OF THE PROCEEDINGS IN THE
STATE COURT TO ENJOIN THE PLAINTIFFS, THE PETITIONERS HEREIN, FROM
HAVING THE JURISDICTIONAL ISSUE TRIED IN THE DISTRICT COURT, AND SET
NOVEMBER 8, 1937, FOR A TRIAL OF THAT ISSUE.  TRIAL WAS ACCORDINGLY
HAD. 

MARCH 21, 1938, THE SUPREME COURT OF PENNSYLVANIA AFFIRMED THE ORDER
OF THE COMMON PLEAS COURT ENJOINING THE PETITIONERS FROM PROSECUTING
THEIR SUIT IN THE DISTRICT COURT,  FN1  AND, ON THE SAME DAY, THE
DISTRICT COURT RENDERED AN OPINION HOLDING IT HAD JURISDICTION
NOTWITHSTANDING THE PROCEEDINGS IN THE COMMON PLEAS COURT.  THE
DISTRICT JUDGE ENTERED NO DECREE BUT STATED THAT REQUESTS FOR FINDINGS
OF FACT, CONCLUSIONS OF LAW, AND A FORM OF DECREE, MIGHT BE SUBMITTED,
AND THAT HE WOULD PROCEED THEREAFTER TO TRY THE MERITS OF THE CAUSE. 

WE ARE THUS CONFRONTED WITH A SITUATION WHERE EACH OF THE COURTS
CLAIMING JURISDICTION HAS RESTRAINED THE PARTIES BEFORE IT FROM
PROCEEDING IN THE OTHER.  IN VIEW OF THIS UNUSUAL STATE OF AFFAIRS, OF
THE IMPORTANCE OF THE QUESTION INVOLVED, AND OF THE CLAIM THAT THE
ACTION OF THE SUPREME COURT OF PENNSYLVANIA IS IN CONFLICT WITH OUR
DECISIONS, WE GRANTED THE WRIT OF CERTIORARI. 

FIRST.  THE SUIT BROUGHT IN COMMON PLEAS COURT IN 1910 WAS FOR THE
SPECIFIC PERFORMANCE OF THE AGREEMENT OF DECEMBER 6, 1906.  THE DECREE
IN THAT SUIT DECLARED THE AGREEMENT VALID AND COMMANDED PERFORMANCE IN
ACCORDANCE WITH ITS TERMS.  AS THE AGREEMENT CALLED FOR A CONTINUING
PERFORMANCE, AND THE DECREE WAS FOR ENFORCEMENT OF THAT PERFORMANCE,
THE COURT RETAINED JURISDICTION TO RENDER THE GRANTED RELIEF
EFFECTIVE.  IT EXERCISED THIS RETAINED JURISDICTION IN 1915, WHEN, BY
CONSENT OF THE PARTIES, IT MODIFIED ITS DECREE TO COMPORT WITH
AMENDMENTS OF THE AGREEMENT.  BUT THE COURT'S JURISDICTION UNDER THE
BILL CEASED WHEN FITZGERALD HAD COMPLETELY PERFORMED IN ACCORDANCE WITH
THE AMENDED DECREE OF 1915, AS EVIDENCED BY THE TRUSTEES'
ACKNOWLEDGMENT FILED OF RECORD IN THE COURT ON JUNE 3, 1925, THAT THE
TERMS OF THE DECREE HAD BEEN SATISFIED.  THE TRUST WAS CREATED BY
AGREEMENT INTER PARTES, ONE OF WHOM REPUDIATED AND FAILED TO PERFORM
IT.  WHEN PERFORMANCE HAD BEEN OBTAINED THE EQUITY PROCEEDING WAS AT AN
END; THE TRUST RES IN THE HANDS OF THE TRUSTEES, WHO WERE THE CREATURES
OF THE AGREEMENT, THEN HAD THE SAME STATUS AS IF THE COURT HAD NEVER
BEEN CALLED UPON TO ACT. 

SECOND.  ALTHOUGH THE AGREEMENT PROVIDED THAT VACANCIES OCCURRING BY
DEATH, RESIGNATION, OR INCAPACITY OF A TRUSTEE SHOULD BE FILLED BY THE
REMAINING TRUSTEES, AND THAT APPLICATION TO THE COURT OF COMMON PLEAS
TO APPOINT A NEW TRUSTEE SHOULD ONLY BE MADE IN THE EVENT THE TRUSTEES
IN OFFICE COULD NOT AGREE ON THE APPOINTMENT OF A SUCCESSOR, IT APPEARS
THAT FROM TIME TO TIME TRUSTEES PRESENTED THEIR RESIGNATIONS TO THAT
COURT AND THE COURT PURPORTED TO ACCEPT THEM.  AND WHEN THE REMAINING
TRUSTEES APPOINTED NEW TRUSTEES TO FILL VACANCIES THEY REPORTED THEIR
ACTION TO THE COURT WHICH SOMETIMES PURPORTED TO CONFIRM AND RATIFY
THAT ACTION.  THE RECORD DOES NOT DISCLOSE THAT THE FIRST METHOD
PROVIDED IN THE AGREEMENT FOR FILLING VACANCIES EVER WAS IMPRACTICABLE,
OR THAT THERE WAS OCCASION FOR RESORT TO THE COURT.  THE PETITIONERS
CONTEND THAT IN THE CIRCUMSTANCES, THE COURT'S APPROVAL WAS UNNECESSARY
AND DID NOT AMOUNT TO AN ASSUMPTION OF JURISDICTION.  WE FIND IT
UNNECESSARY TO PASS UPON THE CONTENTION. 

THIRD.  THE IMPORTANT QUESTIONS ARE WHETHER THE FILING OF THE
TRUSTEES' ACCOUNT ON JULY 7, 1930, GAVE THE COMMON PLEAS COURT
JURISDICTION, AND, IF SO, WHAT WAS THE NATURE AND EXTENT OF THAT
JURISDICTION.  THE COURT OF COMMON PLEAS IS GIVEN "THE JURISDICTION AND
POWERS OF A COURT OF CHANCERY, SO FAR AS RELATES TO:  ...  THE CONTROL,
REMOVAL AND DISCHARGE OF TRUSTEES, AND THE APPOINTMENT OF TRUSTEES, AND
THE SETTLEMENT OF THEIR ACCOUNTS."  N2  RESPECTING THE CHARACTER OF THE
JURISDICTION CONFERRED BY A STATUTORY GRANT SO PHRASED THE SUPREME
COURT OF PENNSYLVANIA HAS SAID:  "THE SCOPE OF SUPERVISORY CONTROL OF
NECESSITY INCLUDES ANY MATTER WHICH CONCERNS THE INTEGRITY OF THE TRUST
RES - ITS ADMINISTRATION, ITS PRESERVATION AND ITS DISPOSITION AND ANY
OTHER MATTER WHEREIN ITS OFFICERS (TRUSTEES) ARE AFFECTED IN THE
DISCHARGE OF THEIR DUTIES."  FN3 THIS JURISDICTION IS VESTED IN THE
COURT OF COMMON PLEAS OF THE COUNTY IN WHICH "ANY SUCH TRUSTEE SHALL
HAVE RESIDED AT THE COMMENCEMENT OF THE TRUST."  FN4  TWO OF THE
ORIGINAL TRUSTEES NAMED IN THE AGREEMENT WERE RESIDENTS OF FAYETTE
COUNTY.  TWO METHODS ARE PROVIDED FOR INVOKING THE JURISDICTION WITH
RESPECT TO THE ADMINISTRATION OF THE TRUST.  THE COURT MAY CITE THE
TRUSTEE ON THE APPLICATION OF ANY PERSON IN INTEREST "TO EXHIBIT AN
ACCOUNT OF THE MANAGEMENT OF THE TRUST ESTATE."  FN5  THE TRUSTEE MAY,
ON THE OTHER HAND, OBTAIN AN ADJUDICATION OF HIS MANAGEMENT OF THE
TRUST BY FILING HIS ACCOUNT IN THE OFFICE OF THE PROTHONOTARY OF THE
COURT AND, UPON SUCH FILING, PROCEEDINGS ARE TO BE HAD IN THE SAME
MANNER AS IF HE HAD FILED THE ACCOUNT UNDER COMPULSION.  FN6 THE
TRUSTEE IS PERMITTED TO HAVE AN ADJUDICATION OF HIS STEWARDSHIP IN THIS
MANNER EVERY THREE YEARS.  FN7 

IT THUS APPEARS THAT WHETHER AN ACCOUNT BE FILED PURSUANT TO CITATION
OR AS THE VOLUNTARY ACT OF THE TRUSTEE THE JURISDICTION OF THE COURT
ATTACHES AND MAY BE EXERCISED OVER ALL THE MATTERS WHICH FALL WITHIN
ITS SUPERVISORY CONTROL OF THE ADMINISTRATION OF THE ESTATE.  THE COURT
HAS THE POWER TO FIX THE COMPENSATION OF THE TRUSTEE N8, TO REQUIRE HIM
TO TAKE OVER FROM THE TRUST INVESTMENTS IMPROPERLY MADE AND TO RESTORE
THE AMOUNT EXPENDED FOR THEM TO THE TRUST ESTATE,  FN9  TO SURCHARGE
HIM WITH LOSSES INCURRED, TO ALLOW HIM HIS PROPER EXPENSES, TO FIND
AGAINST HIM A BALANCE DUE THE ESTATE, AND TO MAKE THE BALANCE FOUND DUE
A LIEN UPON HIS REAL ESTATE.  FN10  IN THE CASE OF A CONTINUING TRUST
SUCH AS THAT HERE IN QUESTION, AFTER ADJUDICATION, THE CORPUS IS
REAWARDED TO THE TRUSTEE FOR FURTHER ADMINISTRATION IN ACCORDANCE WITH
THE TERMS OF THE TRUST.  IN THE CASE OF AN ACCOUNT FILED AT THE CLOSE
OF ADMINISTRATION THE COURT HAS POWER TO DECREE DISTRIBUTION TO THE
PARTIES ENTITLED.  UNDER THE EQUITY POWERS CONFERRED UPON IT THE COURT
MAY ENFORCE ITS ORDERS AGAINST A TRUSTEE BY ATTACHMENT FOR CONTEMPT. 
FN11  THE JURISDICTION EXTENDS TO A TRUST LIKE THE PRESENT CREATED BY
DEED OR VOLUNTARY AGREEMENT.  FN12  THE AUDIT AND CONFIRMATION OF THE
ACCOUNT IS TO BE HAD AFTER ADVERTISEMENT AND OTHER FORMS OF NOTICE AND
IS BINDING ON ALL THOSE ANYWISE INTERESTED IN THE ESTATE WHO HAVE HAD
THE REQUIRED STATUTORY NOTICE OF THE AUDIT.  FN13  THE PARTIES IN
INTEREST ARE PERMITTED BY EXCEPTION AND OBJECTION TO THE ACCOUNT TO
RAISE ALL PERTINENT QUESTIONS RESPECTING THE MANAGEMENT OF THE TRUST,
AND TO INVOKE THE POWERS OF THE COURT OVER THE SUBJECTS ABOVE
MENTIONED.  FN14  THE AUDIT WILL FURTHER DISCLOSE WHETHER THERE BE
PROBABLE GROUND FOR THE REMOVAL OF THE TRUSTEE AND THE APPOINTMENT OF
ANOTHER IN HIS PLACE AND IF THAT BE DONE THE COURT HAS JURISDICTION TO
COMPEL THE REMOVED TRUSTEE TO TRANSFER THE TRUST ASSETS TO HIS
SUCCESSOR.    IT IS OBVIOUS THAT THE FILING OF THEIR ACCOUNT ON JULY 7,
1930, SUBJECTED THE RESPONDENTS, AS THE TRUSTEES THEN IN OFFICE, TO THE
EXERCISE OF THE POWERS THUS CONFERRED UPON THE COURT OF COMMON PLEAS. 

WE TURN TO THE SUIT INSTITUTED IN THE DISTRICT COURT TO ASCERTAIN
WHAT RELIEF WAS THERE SOUGHT.  IN THE BILL AS ORIGINALLY FILED SUNDRY
INVESTMENTS MADE BY THE TRUSTEES WERE ATTACKED AND THEY WERE CHARGED
WITH MISMANAGEMENT OF THE ESTATE.  THE PRAYERS WERE THAT THEY BE CITED
TO FILE AN ACCOUNT OF THE TRUST; THAT THEY BE REMOVED; THAT ALL
TRUSTEES UNDER THE AGREEMENT BE REQUIRED TO GIVE BOND FOR THE FAITHFUL
PERFORMANCE OF THEIR DUTIES; AND FOR GENERAL RELIEF.  BY THE AMENDED
BILL ADDITIONAL TRUST INVESTMENTS WERE ATTACKED.  NEW PRAYERS WERE
SUBSTITUTED ASKING THAT THE DEFENDANTS BE REQUIRED TO ANSWER, TO
RESTORE TO THE TRUST FUNDS THE MONEYS LOST BY THEIR ILLEGAL AND
NEGLIGENT CONDUCT; THAT THEY BE REMOVED; THAT ALL TRUSTEES BE REQUIRED
TO GIVE BOND; AND FOR GENERAL RELIEF. 

THE PLAINTIFFS IN THE DISTRICT COURT WERE BUT TWO OF THE FIVE
CESTUIS.  ONE OF THE OTHERS HAS APPEARED IN THE COMMON PLEAS PROCEEDING
AND EXCEPTED TO THE TRUSTEES' ACCOUNTS.  CERTAIN IT IS, THEREFORE, THAT
IF BOTH COURTS WERE TO PROCEED THEY WOULD BE REQUIRED TO COVER THE SAME
GROUND.  THIS OF ITSELF IS NOT CONCLUSIVE OF THE QUESTION OF THE
DISTRICT COURT'S JURISDICTION, FOR IT IS SETTLED THAT WHERE THE
JUDGMENT SOUGHT IS STRICTLY IN PERSONAM, BOTH THE STATE COURT AND THE
FEDERAL COURT, HAVING CONCURRENT JURISDICTION, MAY PROCEED WITH THE
LITIGATION AT LEAST UNTIL JUDGMENT IS OBTAINED IN ONE OF THEM WHICH MAY
BE SET UP AS RES JUDICATA IN THE OTHER.  FN15  ON THE OTHER HAND, IF
THE TWO SUITS ARE IN REM, OR QUASI IN REM, SO THAT THE COURT, OR ITS
OFFICER, HAS POSSESSION OR MUST HAVE CONTROL OF THE PROPERTY WHICH IS
THE SUBJECT OF THE LITIGATION IN ORDER TO PROCEED WITH THE CAUSE AND
GRANT THE RELIEF SOUGHT THE JURISDICTION OF THE ONE COURT MUST YIELD TO
THAT OF THE OTHER.  FN16  WE HAVE SAID THAT THE PRINCIPLE APPLICABLE TO
BOTH FEDERAL AND STATE COURTS THAT THE COURT FIRST ASSUMING
JURISDICTION OVER PROPERTY MAY MAINTAIN AND EXERCISE THAT JURISDICTION
TO THE EXCLUSION OF THE OTHER, IS NOT RESTRICTED TO CASES WHERE
PROPERTY HAS BEEN ACTUALLY SEIZED UNDER JUDICIAL PROCESS BEFORE A
SECOND SUIT IS INSTITUTED, BUT APPLIES AS WELL WHERE SUITS ARE BROUGHT
TO MARSHAL ASSETS, ADMINISTER TRUSTS, OR LIQUIDATE ESTATES, AND IN
SUITS OF A SIMILAR NATURE WHERE, TO GIVE EFFECT TO ITS JURISDICTION,
THE COURT MUST CONTROL THE PROPERTY.  FN17  THE DOCTRINE IS NECESSARY
TO THE HARMONIOUS COOPERATION OF FEDERAL AND STATE TRIBUNALS.  FN18
WHILE IT HAS NO APPLICATION TO A CASE IN A FEDERAL COURT BASED UPON
DIVERSITY OF CITIZENSHIP, WHEREIN THE PLAINTIFF SEEKS MERELY AN
ADJUDICATION OF HIS RIGHT OR HIS INTEREST AS A BASIS OF A CLAIM AGAINST
A FUND IN THE POSSESSION OF A STATE COURT,  FN19  THIS IS NOT SUCH A
CASE.  NO QUESTION IS PRESENTED IN THE FEDERAL COURT AS TO THE RIGHT OF
ANY PERSON TO PARTICIPATE IN THE RES OR AS TO THE QUANTUM OF HIS
INTEREST IN IT.  THE CONTENTIONS ARE SOLELY AS TO ADMINISTRATION AND
RESTORATION OF CORPUS. 

PETITIONERS INSIST THAT SHELBY V. BACON, 10 HOW.  56, IS CONCLUSIVE
THAT, UNDER THE LAW OF PENNSYLVANIA, THE FILING OF AN ACCOUNT ON JULY
7, 1930, DID NOT CONSTITUTE THE INSTITUTION OF A SUIT BY THE TRUSTEES,
DID NOT CONFER EXCLUSIVE JURISDICTION ON THE STATE COURT AND DID NOT
BAR THE SUBSEQUENT INSTITUTION OF A SUIT IN THE FEDERAL COURT FOR THE
SAME RELIEF.  IN THIS WE THINK THEY ARE IN ERROR.  WHAT WAS THERE SAID
BY THIS COURT TO THE EFFECT THAT THE FILING OF AN ACCOUNT IN THE STATE
COURT DID NOT CONSTITUTE A SUIT AND DID NOT CONFER JURISDICTION ON THE
STATE COURT, WAS NOT NECESSARY TO THE DECISION AND IS NOT IN ACCORD
WITH THE LAW OF PENNSYLVANIA AS DECLARED BY ITS OWN SUPREME COURT. 
FN20  ASSUMING, HOWEVER, THAT THE STATE COURT HAD JURISDICTION, THIS
COURT HELD MERELY THAT THE PLAINTIFF HAD A RIGHT TO ESTABLISH HIS CLAIM
BY SUIT IN THE CIRCUIT COURT NOTWITHSTANDING THE STATE COURT'S
JURISDICTION OVER THE TRUST.  THE COURT WAS CAREFUL TO SAY THAT IT WAS
UNNECESSARY TO CONSIDER QUESTIONS WHICH MIGHT ARISE IN THE EXERCISE OF
THE JURISDICTION OF THE FEDERAL COURT.  THE DECISION IS IN ENTIRE
ACCORD WITH MANY CASES WHICH HOLD THAT AN ACTION IN THE FEDERAL COURT
TO ESTABLISH THE VALIDITY OR THE AMOUNT OF A CLAIM CONSTITUTES NO
INTERFERENCE WITH A STATE COURT'S POSSESSION OR CONTROL OF A RES. 

THE COMMON PLEAS COURT COULD NOT EFFECTIVELY EXERCISE THE
JURISDICTION VESTED IN IT, WITHOUT A SUBSTANTIAL MEASURE OF CONTROL OF
THE TRUST FUNDS.  ITS PROCEEDINGS ARE, AS THE COURT BELOW HELD, QUASI
IN REM, AND THE JURISDICTION ACQUIRED UPON THE FILING OF THE TRUSTEES'
ACCOUNT IS EXCLUSIVE.  THE DISTRICT COURT FOR THE WESTERN DISTRICT OF
PENNSYLVANIA IS WITHOUT JURISDICTION OF THE SUIT SUBSEQUENTLY BROUGHT
FOR THE SAME RELIEF, AND THE PETITIONERS WERE PROPERLY ENJOINED FROM
FURTHER PROCEEDING IN THAT COURT. 

THE JUDGMENT IS AFFIRMED. 

FN1  THOMPSON V. FITZGERALD, 329 PA. 497; 198 ATL. 58. 

FN2  ACT OF JUNE 16, 1836, P.L. 784, SEC. 13; 17 P.S. SEC. 281. 

FN3  WILSON V. BOARD OF DIRECTORS OF CITY TRUSTS, 324 PA. 545, 551;
188 A. 588, 592. 

FN4 ACT OF JUNE 14, 1836, P.L. 628, SEC. 15; 20 P.S. SEC. 2741; SEC.
16, 20 P.S. SEC. 2872; SEC. 23, 20 P.S. SEC. 2767; ACT OF MAY 1, 1861,
P.L. 680, SEC. 1; 20 P.S. SEC. 2871. 

FN5  ACT OF JUNE 14, 1836, P.L. 628, SEC. 19; 20 P.S. SEC. 2833. 

FN6  ACT OF JUNE 14, 1836, P.L. 628 SEC. 14; 20 P.S. SEC. 2925. 

FN7  "ALL TRUSTEES OF ESTATES  ...  MAY HEREAFTER, TRIENNIALLY, FROM
THE DATE OF THEIR APPOINTMENT, FILE THEIR ACCOUNTS IN THE APPROPRIATE
COURTS, WHICH SHALL BE DULY AUDITED, AND CONFIRMED ABSOLUTELY TO THAT
DATE:  ...  PROVIDED FURTHER, THAT DUE AND ACTUAL NOTICE SHALL HAVE
BEEN GIVEN, WHERE THE ACOUNT SHALL BE FILED BY A TRUSTEE, TO ALL
PERSONS INTERESTED IN THE ESTATE, UNDER THE TERMS AND PROVISIONS OF THE
TRUST; ...  AND THAT ADVERTISEMENT SHALL HAVE BEEN DULY MADE OF THE
FILING OF SAID ACCOUNT; AND THAT SUCH PERSONS, ACTUALLY NOTIFIED, ARE
LEGALLY COMPETENT AND QUALIFIED, EITHER PERSONALLY OR BY THEIR
GUARDIANS, TO APPEAR IN COURT AND OBJECT TO SAID ACCOUNT IF THEY SO
DESIRE."  ACT OF MAY 3, 1909, P.L. 391, SEC. 1; 20 P.S. SEC. 2853. 

FN8  ACT OF JUNE 14, 1836, P.L. 628, SEC. 29; 20 P.S. 3271. 

FN9  SEE THE OPINION BELOW, 329 PA. 512; 198 A. 58. 

FN10  ACT OF APRIL 30, 1855, P.L. 386, SEC. 1; 20 P.S. SEC. 2854. 

FN11  CHEW'S APPEAL, 44 PA. 247; SCOTT V. JAILER, 1 GRANT 237;
MORRISON V. BLAKE (NO. 1) 33 PA. SUPER.  CT. 290, 297; COMMONWEALTH V.
HESTON, 292 PA. 63, 68; 146 A. 533. 

FN12  SEE BASKIN'S APPEAL, 34 PA. 272; JONES' ESTATE, 15 PA. DIST.
REP. 30; IN RE WEISER TRUST, 23 YORK 80; BALL'S ESTATE, 220 PA. 399; 69
A. 817. 

FN13  THE PETITIONERS LAY STRESS ON AN AVERMENT IN THE ANSWER FILED
IN THE COMMON PLEAS COURT TO THE TRUSTEES' PETITION FOR A RULE TO SHOW
CAUSE WHY THE PETITIONERS SHOULD NOT BE RESTRAINED FROM PROSECUTING
THEIR SUIT IN THE FEDERAL COURT.  THIS IS TO THE EFFECT THAT THE
TRUSTEES' ACCOUNTS HAD BEEN "FILED WITHOUT NOTICE TO THE" PETITIONERS. 
NO NOTICE OF THE INTENTION TO FILE IS REQUIRED.  NOTICE IS TO BE GIVEN
TO THE PARTIES IN INTEREST THAT THE ACCOUNT HAS BEEN FILED AND WILL BE
AUDITED.  THERE IS NO AVERMENT THAT THE BENEFICIARIES OF THE TRUST DID
NOT RECEIVE SUCH NOTICE. 

FN14  COMPARE MOORE'S APPEAL, 10 PA. 435; MCLELLAN'S APPEAL (NO. 1),
76 PA. 231; COMMONWEALTH V. TROUT, 76 PA. 379. 

FN15  PENN GENERAL CASUALTY CO. V. PENNSYLVANIA, 294 U.S. 189, 195,
AND CITED CASES. 

FN16  IBID. 

FN17  FARMERS' LOAN & T. CO. V. LAKE STREET E.R. CO., 177 U.S. 51, 61;
PALMER V. TEXAS, 212 U.S. 118, 129; UNITED STATES V. BANK OF NEW YORK &
T. CO., 296 U.S. 463, 477. 

FN18  UNITED STATES V. BANK OF NEW YORK & TRUST CO., SUPRA, 478, AND
CASES CITED. 

FN19  COMMONWEALTH TRUST CO. V. BRADFORD, 297 U.S. 613, 619, AND
CASES CITED. 

FN20  WHITNEY'S APPEAL, 22 PA. 500, 505. 
..END :























HELVERING V. OWENS, 305 U.S. 468 


NO. 180.  ARGUED DECEMBER 9, 1938.  - DECIDED JANUARY 3, 1939.  - 95
F.2D 318, REVERSED.  - 97 F.2D 431, AFFIRMED. 


1.  UNDER THE REVENUE ACTS OF 1932 AND 1934, THE BASIS FOR DETERMINING
THE AMOUNT OF A LOSS SUSTAINED DURING THE TAXABLE YEAR, ARISING FROM
DAMAGE BY CASUALTY TO PROPERTY NOT USED IN THE TAXPAYER'S TRADE OR
BUSINESS (AS TO WHICH CLASS OF PROPERTY NO ANNUAL DEDUCTIONS FOR
DEPRECIATION ARE ALLOWED), IS NOT THE COST OF THE PROPERTY BUT ITS
VALUE IMMEDIATELY BEFORE THE CASUALTY.  P. 471. 

2.  IN COMPUTING UNDER THE REVENUE ACT OF 1934 THE AMOUNT OF THE
DEDUCTION FOR LOSSES SUSTAINED DURING THE TAXABLE YEAR FROM THE SALE OR
OTHER DISPOSITION OF PROPERTY, SEC. 113(B)(1)(B) - AND THE
CORRESPONDING PROVISION OF THE 1932 ACT - MUST BE READ AS A LIMITATION
UPON THE AMOUNT OF THE DEDUCTION SO THAT IT MAY NOT EXCEED COST, AND IN
THE CASE OF DEPRECIABLE NONBUSINESS PROPERTY MAY NOT EXCEED THE AMOUNT
OF THE LOSS ACTUALLY SUSTAINED IN THE TAXABLE YEAR, MEASURED BY THE
THEN DEPRECIATED VALUE OF THE PROPERTY.  P. 471. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. OWENS ET AL.* 

*TOGETHER WITH NO. 318, OBICI ET AL. V. HELVERING, COMMISSIONER OF
INTERNAL REVENUE, ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE FOURTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, PP. 582, 585, TO REVIEW, IN NO. 180, THE
AFFIRMANCE, AND IN NO. 318, THE REVERSAL, OF DECISIONS OF THE BOARD OF
TAX APPEALS IN FAVOR OF THE TAXPAYERS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE COURTS BELOW HAVE GIVEN OPPOSING ANSWERS TO THE QUESTION WHETHER
THE BASIS FOR DETERMINING THE AMOUNT OF A LOSS SUSTAINED DURING THE
TAXABLE YEAR THROUGH INJURY TO PROPERTY NOT USED IN A TRADE OR
BUSINESS, AND THEREFORE NOT THE SUBJECT OF AN ANNUAL DEPRECIATION
ALLOWANCE, SHOULD BE ORIGINAL COST OR VALUE IMMEDIATELY BEFORE THE
CASUALTY.  FN1  TO RESOLVE THIS CONFLICT WE GRANTED CERTIORARI IN BOTH
CASES. 

IN NO. 180 THE FACTS ARE THAT THE RESPONDENT DONALD H. OWENS
PURCHASED AN AUTOMOBILE AT A DATE SUBSEQUENT TO MARCH 1, 1913, AND
PRIOR TO 1934, FOR $1825, AND USED IT FOR PLEASURE UNTIL JUNE 1934 WHEN
IT WAS DAMAGED IN A COLLISION.  THE CAR WAS NOT INSURED.  PRIOR TO THE
ACCIDENT ITS FAIR MARKET VALUE WAS $225; AFTER THAT EVENT THE FAIR
MARKET VALUE WAS $190.  THE RESPONDENTS FILED A JOINT INCOME TAX RETURN
FOR THE CALENDAR YEAR 1934 IN WHICH THEY CLAIMED A DEDUCTION OF $1635,
THE DIFFERENCE BETWEEN COST AND FAIR MARKET VALUE AFTER THE CASUALTY. 
THE COMMISSIONER REDUCED THE DEDUCTION TO $35, THE DIFFERENCE IN MARKET
VALUE BEFORE AND AFTER THE COLLISION.  THE BOARD OF TAX APPEALS
SUSTAINED THE TAXPAYERS' CLAIM AND THE CIRCUIT COURT OF APPEALS
AFFIRMED ITS RULING. 

IN NO. 318 IT APPEARS THAT THE TAXPAYERS ACQUIRED A BOAT, BOATHOUSE,
AND PIER IN 1926 AT A COST OF $5,325.  IN AUGUST 1933 THE PROPERTY,
WHICH HAD BEEN USED SOLELY FOR PLEASURE, AND WAS UNINSURED, WAS TOTALLY
DESTROYED BY A STORM.  ITS ACTUAL VALUE IMMEDIATELY PRIOR TO
DESTRUCTION WAS $3905.  THE TAXPAYERS CLAIMED THE RIGHT TO DEDUCT COST
IN THE COMPUTATION OF TAXABLE INCOME.  THE COMMISSIONER ALLOWED ONLY
VALUE AT DATE OF DESTRUCTION.  THE BOARD OF TAX APPEALS HELD WITH THE
TAXPAYERS BUT THE CIRCUIT COURT OF APPEALS REVERSED THE BOARD'S
RULING. 

DECISION IN NO. 180 IS GOVERNED BY THE REVENUE ACT OF 1934; FN2  IN
NO. 318 BY THE REVENUE ACT OF 1932.  FN3  THE PROVISIONS OF BOTH
STATUTES TOUCHING THE QUESTION PRESENTED ARE SUBSTANTIALLY THE SAME AND
WE SHALL REFER ONLY TO THOSE OF THE 1934 ACT.  SECTION 23(E)(3) PERMITS
DEDUCTION FROM GROSS INCOME OF LOSSES "OF PROPERTY NOT CONNECTED WITH
THE TRADE OR BUSINESS" OF THE TAXPAYER, "IF THE LOSS ARISES FROM  ...
CASUALTY."  SUBSECTION (H) DECLARES THAT "THE BASIS FOR DETERMINING THE
AMOUNT OF DEDUCTION FOR LOSSES SUSTAINED, TO BE ALLOWED UNDER
SUBSECTION (E)  ... , SHALL BE THE ADJUSTED BASIS PROVIDED IN SECTION
113(B)."  SECTION 113 IS ENTITLED "ADJUSTED BASIS FOR DETERMINING GAIN
OR LOSS"; IN SUBSECTION (A) IT PROVIDES THAT "THE BASIS OF PROPERTY
SHALL BE THE COST OF SUCH PROPERTY," WITH EXCEPTIONS NOT MATERIAL. 
SUBSECTION (B), TO WHICH 23(H) REFERS, IS:  "ADJUSTED BASIS.  - THE
ADJUSTED BASIS FOR DETERMINING THE GAIN OR LOSS FROM THE SALE OR OTHER
DISPOSITION OF PROPERTY, WHENEVER ACQUIRED, SHALL BE THE BASIS
DETERMINED UNDER SUBSECTION (A), ADJUSTED AS HEREINAFTER PROVIDED.  (1)
GENERAL RULE.  - PROPER ADJUSTMENT IN RESPECT OF THE PROPERTY SHALL IN
ALL CASES BE MADE - (B) IN RESPECT OF ANY PERIOD SINCE FEBRUARY 28,
1913, FOR EXHAUSTION, WEAR AND TEAR, OBSOLESCENCE, AMORTIZATION, AND
DEPLETION, TO THE EXTENT ALLOWED (BUT NOT LESS THAN THE AMOUNT
ALLOWABLE) UNDER THIS ACT OR PRIOR INCOME TAX LAWS." 

THE INCOME TAX ACTS HAVE CONSISTENTLY ALLOWED DEDUCTION FOR
EXHAUSTION, WEAR AND TEAR, OR OBSOLESCENCE ONLY IN THE CASE OF
"PROPERTY USED IN THE TRADE OR BUSINESS."  THE TAXPAYERS IN THESE CASES
COULD NOT, THEREFORE, HAVE CLAIMED ANY DEDUCTION ON THIS ACCOUNT FOR
YEARS PRIOR TO THAT IN WHICH THE CASUALTY OCCURRED.  FOR THIS REASON
THEY CLAIM THEY MAY DEDUCT UPON THE UNADJUSTED BASIS,  - THAT IS,  -
COST.  AS THE INCOME TAX LAWS CALL FOR ACCOUNTING ON AN ANNUAL BASIS;
AS THEY PROVIDE FOR DEDUCTIONS FOR "LOSSES SUSTAINED DURING THE TAXABLE
YEAR"; AS THE TAXPAYER IS NOT ALLOWED ANNUAL DEDUCTIONS FOR
DEPRECIATION OF NONBUSINESS BUSINESS PROPERTY; AS SEC. 23(H) REQUIRES
THAT THE DEDUCTION SHALL BE ON "THE ADJUSTED BASIS PROVIDED IN SECTION
113(B)," THUS CONTEMPLATING AN ADJUSTMENT OF VALUE CONSEQUENT ON
DEPRECIATION; AND AS THE PROPERTY INVOLVED WAS SUBJECT TO DEPRECIATION
AND OF LESS VALUE IN THE TAXABLE YEAR, THAN ITS ORIGINAL COST, WE THINK
SEC. 113(B)(1)(B) MUST BE READ AS A LIMITATION UPON THE AMOUNT OF THE
DEDUCTION SO THAT IT MAY NOT EXCEED COST, AND IN THE CASE OF
DEPRECIABLE NON-BUSINESS PROPERTY MAY NOT EXCEED THE AMOUNT OF THE LOSS
ACTUALLY SUSTAINED IN THE TAXABLE YEAR, MEASURED BY THE THEN
DEPRECIATED VALUE OF THE PROPERTY.  THE TREASURY RULINGS HAVE NOT BEEN
CONSISTENT, BUT THIS CONSTRUCTION IS THE ONE WHICH HAS FINALLY BEEN
ADOPTED.  FN4  IN NO. 180 JUDGMENT REVERSED.  IN NO. 318 JUDGMENT
AFFIRMED. 

FN1  HELVERING V. OWNES, 95 F.2D 318; HELVERING V. OBICI, 97 F.2D
431. 

FN2  C. 277, 48 STAT. 680, SECS. 23(E)(F)(H)(L), 24(A)1, 41, 113; 26
U.S.C. SECS. 23, 24, 41, 113. 

FN3  C. 209, 47 STAT. 169, SECS. 23(E)(F)(G)(H), 24(A)1, 113. 

FN4  TREASURY REGULATIONS 86, ARTS. 23(E)-1, 23(H) 1, 113(B) 1;
G.C.M. XV 1, CUMULATIVE BULLETIN 115-118. 
..END :


















UNITED STATES V. MCCLURE, 305 U.S. 472 


NO. 154.  ARGUED DECEMBER 8, 1938.  - DECIDED JANUARY 3, 1939.  - 95
F.2D 744, AFFIRMED. 


1.  A VETERAN ALLOWED HIS YEARLY RENEWABLE TERM INSURANCE TO LAPSE BY
FAILING TO PAY THE PREMIUM DUE IN FEBRUARY, 1919, WHEN HE WAS SUFFERING
FROM A COMPENSABLE DISABILITY FOR WHICH COMPENSATION WAS NOT
COLLECTED.  IN DECEMBER, 1929, WHEN HE BECAME PERMANENTLY AND TOTALLY
DISABLED, THERE REMAINED COMPENSATION DUE HIM SUFFICIENT TO PAY ALL
PREMIUMS DUE ON THE LAPSED POLICY.  HELD THAT HIS INSURANCE WAS REVIVED
UNDER SEC. 305 OF THE WORLD WAR VETERANS' ACT, WHICH PROVIDES FOR
REVIVAL OF LAPSED INSURANCE BY APPLICATION TO PREMIUM OF COMPENSATION
DUE.  P. 473. 

THIS IS NOT INCONSISTENT WITH SEC. 301, WHICH PROVIDES GENERALLY FOR
CONVERSION OF YEARLY RENEWABLE TERM INSURANCE BY JULY 2, 1927 AND
DECLARES THAT "ALL YEARLY RENEWABLE TERM INSURANCE SHALL CEASE ON JULY
2, 1927, EXCEPT WHEN DEATH OR TOTAL PERMANENT DISABILITY SHALL HAVE
OCCURRED BEFORE JULY 2, 1927." 

2. ALTHOUGH SEC. 305 OF THE ACT, AND SEC. 304 DEALING WITH
REINSTATEMENT OF YEARLY RENEWABLE TERM INSURANCE AND PROHIBITING SUCH
REINSTATEMENT AFTER JULY 2, 1927, BOTH EMANATED FROM A SINGLE SECTION
IN AN EARLIER ACT, THEY ARE TO BE REGARDED AS DISTINCT PARTS OF THE
LATER STATUTE, HAVING BEEN SEPARATED BY CONGRESS IN ORDER TO PROVIDE
FOR THE INDIVIDUAL TREATMENT THAT HAS BEEN GIVEN REINSTATEMENT AS
DISTINGUISHED FROM REVIVAL OF LAPSED POLICIES.  THE SEPARATION
INDICATES AN INTENDED CHANGE.  P. 477. 

3.  A PROVISO IS TO BE READ AS REFERRING, PRESUMABLY, TO THE
PROVISION TO WHICH IT IS ATTACHED.  P. 478. 

UNITED STATES V. MCCLURE, ADMINISTRATRIX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 582, TO REVIEW A JUDGMENT WHICH REVERSED A
JUDGMENT OF THE DISTRICT COURT DISMISSING AN ACTION ON A WAR RISK
INSURANCE POLICY.  UPON THE DEATH OF THE ASSURED, WHO BROUGHT THE
ACTION FOR DISABILITY BENEFITS, THE PRESENT RESPONDENT WAS SUBSTITUTED,
AS ADMINISTRATRIX AND INDIVIDUALLY, AND SOUGHT BY HER AMENDED COMPLAINT
TO RECOVER BOTH TOTAL PERMANENT DISABILITY BENEFITS AND DEATH
BENEFITS.  THE CASE WAS TRIED WITHOUT A JURY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

WE ARE CALLED UPON TO DETERMINE WHETHER SEC. 301 OR SEC. 305 OF THE
WORLD WAR VETERANS' ACT  FN1 APPLIES TO A LAPSED POLICY OF WAR RISK
YEARLY RENEWABLE TERM INSURANCE. 

EXCEPTIONS NOT APPLICABLE HERE) THAT "ALL YEARLY RENEWABLE TERM
INSURANCE SHALL CEASE ON JULY 2, 1927, EXCEPT WHEN DEATH OR TOTAL
PERMANENT DISABILITY SHALL HAVE OCCURRED BEFORE JULY 2, 1927:  ...  " 

HIS INSURANCE TO LAPSE,  ... WHILE SUFFERING FROM A COMPENSABLE
DISABILITY FOR WHICH COMPENSATION WAS NOT COLLECTED AND DIES OR HAS
DIED, OR BECOMES OR HAS BECOME PERMANENTLY AND TOTALLY DISABLED" WHILE
"ENTITLED TO COMPENSATION REMAINING UNCOLLECTED  ...  HIS INSURANCE
...  SHALL NOT BE CONSIDERED AS LAPSED"; AND THE VETERANS'
ADMINISTRATION SHALL PAY HIM OR HIS BENEFICIARIES "SO MUCH OF HIS
INSURANCE AS SAID UNCOLLECTED COMPENSATION  ...  WOULD PURCHASE IF
APPLIED AS PREMIUMS WHEN DUE  ...  LESS THE UNPAID PREMIUMS AND
INTEREST AT FIVE PER CENTUM COMPOUNDED ANNUALLY IN INSTALLMENTS." 

JOHN F. MCCLURE, A WORLD WAR VETERAN, ALLOWED HIS YEARLY RENEWABLE
TERM INSURANCE TO LAPSE BY FAILING TO PAY THE PREMIUM DUE FEBRUARY,
1919, "WHILE SUFFERING FROM A COMPENSABLE DISABILITY FOR WHICH
COMPENSATION WAS NOT COLLECTED."  DECEMBER 1, 1929, WHEN HE BECAME
PERMANENTLY AND TOTALLY DISABLED, THERE REMAINED UNCOLLECTED
COMPENSATION DUE HIM SUFFICIENT TO PAY ALL PREMIUMS THEN DUE ON HIS
LAPSED POLICY.  THE VETERAN BROUGHT SUIT ON HIS POLICY ALLEGING TOTAL
AND PERMANENT DISABILITY AND, AT HIS DEATH, RESPONDENT - AS
ADMINISTRATRIX AND INDIVIDUALLY - FILED AN AMENDED COMPLAINT SEEKING
RECOVERY UNDER SEC. 305.  THE DISTRICT COURT HELD THAT THE INSURANCE
WAS NOT REVIVED UNDER SEC. 305 AND ENTERED JUDGMENT FOR THE
GOVERNMENT.  THE CIRCUIT COURT OF APPEALS REVERSED,  FN2 BELIEVING SEC.
301 DID NOT LIMIT SEC. 305 AND THAT RESPONDENT WAS ENTITLED TO JUDGMENT
ON THE POLICY, CONTRARY TO THE RESULT REACHED BY THE CIRCUIT COURT OF
APPEALS FOR THE TENTH CIRCUIT.  FN3 

SINCE THIS VETERAN'S LAPSED POLICY WAS "YEARLY RENEWABLE TERM
INSURANCE" AND HIS PERMANENT DISABILITY OCCURRED AFTER JULY 2, 1927,
THE QUESTION IS:  DID SUCH INSURANCE CEASE TO EXIST ON JULY 2, 1927
BECAUSE OF THE GENERAL SWEEPING PROVISIONS OF SEC. 301, OR WAS LAPSED
YEARLY RENEWABLE TERM INSURANCE - SUCH AS HIS - SAVED BY THE SPECIAL
BENEFITS EXTENDED UNDER SEC. 305?  WE FIND THE ANSWER IN THE LANGUAGE
OF THE ORIGINAL WAR RISK INSURANCE ACT AND ITS AMENDMENTS. 

THAT ORIGINAL ACT OF OCTOBER 6, 1917,  FN4  PROVIDED GOVERNMENT
INSURANCE WITHOUT MEDICAL EXAMINATION FOR PERSONS ENGAGED IN WAR
SERVICES.  YEARLY RENEWABLE TERM INSURANCE WAS GRANTED WITH PROVISION
FOR CONVERSION INTO OTHER FORMS OF INSURANCE WITHOUT MEDICAL
EXAMINATION NOT LATER THAN FIVE YEARS AFTER THE TERMINATION OF THE
WAR. 

AUGUST 9, 1921, CONGRESS AMENDED THIS ACT AND ADDED SEC. 408.  FN5
REINSTATE AND TO REVIVE LAPSED "YEARLY RENEWABLE TERM INSURANCE." 
FIRST.  VETERANS SUFFERING FROM DISABILITY CONTRACTED IN ACTIVE WAR
SERVICE WERE PERMITTED TO REINSTATE THEIR POLICIES DESPITE SUCH
DISABILITY.  SECOND.  VETERANS' INSURANCE WHICH HAD LAPSED WHILE THE
VETERANS WERE SUFFERING FROM SERVICE CONNECTED DISABILITIES FOR WHICH
COMPENSATION HAD NOT BEEN PAID - AS HERE, WAS REVIVED IN THE AMOUNT
WHICH SUCH UNCOLLECTED COMPENSATION - AT DEATH OR DATE OF TOTAL
DISABILITY - WOULD PURCHASE.  THIS FIRST PROVISION OF SEC. 408 WAS THE
ORIGINAL PREDECESSOR OF SEC. 304; THE SECOND PROVISION - RELIED UPON TO
ENFORCE MCCLURE'S POLICY - BECAME SEC. 305. 

BY THE ACT OF MARCH 4, 1923, FN6  CONGRESS BROADENED BOTH BENEFICIAL
PROVISIONS OF SEC. 408 AND LEFT IT AS A SINGLE SECTION.  BUT IN 1924,
WHEN CONGRESS REVISED THE WAR RISK INSURANCE ACT,  FN7 THESE TWIN
PROVISIONS OF SEC. 408 WERE SEVERED AND THEREAFTER APPEARED AS TWO
SEPARATE AND DISTINCT PARAGRAPHS, SECS. 304 AND 305.  SECTION 304
INCORPORATED THAT PORTION OF SEC. 408 WHICH HAD PROVIDED FOR
REINSTATEMENT OF LAPSED TERM INSURANCE DESPITE PHYSICAL DISABILITY. 
AUTHORIZED UTILIZATION OF UNCOLLECTED COMPENSATION FOR REVIVAL OF SUCH
LAPSED INSURANCE.  IT IS OF VITAL SIGNIFICANCE THAT CONGRESS IN
CREATING THESE TWO NEW SECTIONS WAS CAREFUL TO LIMIT REINSTATEMENT OF
LAPSED TERM INSURANCE BY CONCLUDING SEC. 304 WITH THE POINTED PROVISO
"THAT NO TERM INSURANCE SHALL BE REINSTATED AFTER JULY 2, 1926."  BUT
CONGRESS PLACED NO SUCH LIMITATION ON THE RIGHT OF REVIVAL UNDER SEC.
305, ON WHICH THIS SUIT IS BROUGHT. 

THE ACTION OF CONGRESS IN RESTRICTING THE BENEFITS ONLY UNDER ONE OF
THE TWO SECTIONS MUST BE CONSIDERED TOGETHER WITH SEC. 301 OF THE SAME
1924 ACT WHICH PROVIDED THAT "ALL TERM INSURANCE SHALL CEASE ON JULY 2,
1926, EXCEPT WHEN DEATH OR TOTAL PERMANENT DISABILITY SHALL HAVE
OCCURRED BEFORE JULY 2, 1926."  CONGRESS IN THIS 1924 ACT, CLEARLY
EVIDENCED ITS PURPOSE TO PROHIBIT REINSTATEMENT OF YEARLY RENEWABLE
TERM POLICIES UNDER SEC. 304 AFTER JULY 2, 1926, IN ORDER TO MAKE SEC.
304 CONFORM TO SEC. 301 WHICH AUTHORIZED CONVERSION OF SUCH POLICIES
PRIOR TO THAT DATE.  REINSTATEMENT UNDER SEC. 304, HOWEVER, REQUIRED
ACTION BY THE VETERAN.  HE WAS REQUIRED TO SUBMIT APPLICATION, TO
COMPLY WITH STATUTORY AND ADMINISTRATIVE REGULATIONS, AND TO PAY BACK
PREMIUMS.  BUT ACTION BY THE VETERAN WAS NOT REQUIRED TO REVIVE A
LAPSED POLICY UNDER SEC. 305.  HIS RIGHTS DID NOT DEPEND UPON
APPLICATION, PROOF, COMPLIANCE WITH REGULATIONS OR PAYMENT.  BECAUSE
HIS POLICY HAD LAPSED WHILE THE GOVERNMENT OWED HIM MONEY FOR SERVICE
CONNECTED DISABILITY WHICH HAD BECOME TOTAL AND PERMANENT, HIS LAPSED
POLICY WAS AUTOMATICALLY REVIVED.  TO HAVE REQUIRED ACTION ON HIS PART
WOULD HAVE BEEN INCONSISTENT WITH THE MANIFEST PURPOSE OF CONGRESS TO
PERMIT REVIVAL AND CONTINUATION OF INSURANCE SOLELY BECAUSE THE
GOVERNMENT HAD IN ITS POSSESSION FUNDS DUE THE VETERAN AND SUFFICIENT
TO PAY FOR HIS INSURANCE. 

JUNE, 1926,  FN8  SEC. 301 WAS AMENDED EXTENDING THE DATE FOR
CONVERSION OF YEARLY RENEWABLE TERM INSURANCE TO JULY 2, 1927, AND THE
FOLLOWING MONTH THE PROVISO OF SEC. 304 WAS SPECIFICALLY AMENDED TO
CONFORM TO THE JUNE AMENDMENT TO SEC. 301, BY PROHIBITING REINSTATEMENT
OF SUCH INSURANCE AFTER JULY 2, 1927.  FN9  ALTHOUGH THE RIGHT OF
REINSTATEMENT UNDER SEC. 304 THUS WAS AGAIN SPECIFICALLY RESTRICTED,
CONGRESS IN NO WAY INDICATED ANY INTENTION TO ADD THE SAME RESTRICTION
TO THE RIGHT OF REVIVAL UNDER SEC. 305 ON WHICH THE PRESENT SUIT IS
BASED.  INSTEAD, THE BENEFITS UNDER SEC. 305 WERE EXTENDED BY THE JULY
AMENDMENT SO AS TO PERMIT BENEFICIARIES TO APPLY UNCOLLECTED BONUSES TO
THE LAPSED POLICIES OF DECEASED VETERANS.  CONGRESS AGAIN GAVE SPECIAL
ATTENTION TO SEC. 305 IN 1928 FN10  AND AUTHORIZED THE REVIVAL OF
LAPSED POLICIES BY UTILIZATION OF COMPENSATION OTHERWISE UNCOLLECTIBLE
BECAUSE BARRED BY LIMITATIONS.  CONTINUING THE SEPARATE CONSIDERATION
AND TREATMENT OF SECS. 304 AND 305, CONGRESS IN 1930 ONCE MORE APPLIED
THE RESTRICTIVE PROVISO TO SEC. 304 BUT NOT TO SEC. 305.  FN11 

THE DELIBERATE INTENTION OF CONGRESS TO APPLY DIFFERENT RESTRICTIONS
TO THE RIGHT OF REINSTATING LAPSED POLICIES UNDER SEC. 304 AND THAT OF
REVIVING SUCH POLICIES UNDER SEC. 305 WAS ALSO MADE MANIFEST BY OTHER
CHANGES IN THE ACT OF JULY 2, 1926.  FN12  WHILE REINSTATEMENT OF
YEARLY RENEWABLE TERM INSURANCE UNDER SEC. 304, BUT NOT REVIVAL UNDER
SEC. 305, WAS THEREIN PROHIBITED AFTER JULY 2, 1927, A NEW PROVISO WAS
ADDED TO SEC. 305 UNDER WHICH THE "INSURANCE HEREAFTER REVIVED UNDER
THIS SECTION (305)  ...  SHALL BE PAID ONLY TO THE INSURED, HIS WIDOW,
CHILD OR CHILDREN, DEPENDENT MOTHER OR FATHER,  ...  "  ON THE OTHER
HAND, THERE IS NO SUCH LIMITATION AS TO BENEFICIARIES OF POLICIES
REINSTATED UNDER THE PROVISIONS OF SEC. 304.  THIS STUDIED LIMITATION
OF THE GOVERNMENT'S LIABILITY ON POLICIES REVIVED UNDER SEC. 305, BY
RESTRICTION OF BENEFICIARIES, INDICATES A DISTINCTIVE LEGISLATIVE
CONSIDERATION AND TREATMENT OF THAT SECTION. 

TO HOLD THAT A LAPSED YEARLY RENEWABLE TERM INSURANCE POLICY CANNOT
BE REVIVED UNDER SEC. 305 WOULD BE TO APPLY TO THAT SECTION, BY
CONSTRUCTION, THE PROVISO WHICH CONGRESS ATTACHED ONLY TO SEC. 304. 
THEM.  WHILE BOTH SECTIONS EMANATED FROM A SINGLE PRIOR SECTION,
CONGRESS EVIDENTLY SEPARATED THEM TO PROVIDE FOR THE INDIVIDUAL
TREATMENT THAT HAS BEEN GIVEN REINSTATEMENT AS DISTINGUISHED FROM
REVIVAL OF LAPSED POLICIES.  A DELIBERATE SEPARATION OF THE TWO PARTS
OF THE OLD SECTION - APPLYING A RESTRICTION TO ONE AND NOT THE OTHER -
INDICATES THAT A CHANGE WAS INTENDED.  FN13  THIS IS IN ACCORD WITH THE
PRESUMPTION THAT A PROVISO "REFERS ONLY TO THE PROVISION TO WHICH IT IS
ATTACHED."  FN14 

IN THE LIGHT OF THE STATUTORY DEVELOPMENT OF THE WAR RISK INSURANCE
ACT, THERE IS NO CONFLICT BETWEEN THE GENERAL PROVISIONS OF SEC. 301
REQUIRING CONVERSION OF YEARLY RENEWABLE TERM INSURANCE BY JULY 2,
1927, AND THE SPECIAL BENEFITS GRANTED BY SEC. 305 TO THAT PARTICULAR
GROUP OF VETERANS TO WHOM THE GOVERNMENT HAD NOT PAID DISABILITY
COMPENSATION WHICH WAS JUSTLY THEIR DUE.  THE BENEFITS OF THE SPECIAL
PROVISIONS OF SEC. 305 ARE EXTENDED TO EVERY VETERAN WHO HAS
"HERETOFORE ALLOWED HIS INSURANCE TO LAPSE,  ...  "  THE MEANING OF THE
WORDS OF THE STATUTE IS APPARENT AND WE NEED NOT LOOK BEYOND THE
LANGUAGE AND STATUTORY DEVELOPMENT OF THE WAR RISK INSURANCE ACT.  FN15
A LAPSED POLICY, WHETHER YEARLY RENEWABLE TERM OR IN CONVERTED FORM,
COMES WITHIN THE PROVISIONS OF SEC. 305. 

SINCE THE VETERAN IN THIS CASE WAS DUE COMPENSATION FOR SERVICE
CONNECTED DISABILITIES AT THE TIME HIS POLICY LAPSED AND AT THE TIME HE
BECAME TOTALLY AND PERMANENTLY DISABLED THE AMOUNT OF HIS UNCOLLECTED
COMPENSATION WAS SUFFICIENT TO PAY ALL PREMIUMS THEN DUE, HIS INSURANCE
WAS REVIVED UNDER SEC. 305.  THE JUDGMENT OF THE CIRCUIT COURT OF
APPEALS IS THEREFORE AFFIRMED. 

FN1  38 U.S.C., SECS. 512, 516, 44 STAT. 686, 790. 

FN2  95 F.2D 744. 

FN3  SKELTON V. UNITED STATES, 88 F.2D 599. 

FN4  40 STAT. 398, 409-410. 

FN5  42 STAT. 147, 156. 

FN6  42 STAT. 1521, 1525, 1526. 

FN7  43 STAT. 607, 625, 626. 

FN8 44 STAT. 686. 

FN9  44 STAT. 790, 799. 

FN10  45 STAT. 964, 971. 

FN11  46 STAT. 991, 1001, SEC. 23. 

FN12  44 STAT. 790, 799, 800. 

FN13  CF. BREWSTER V. GAGE, 280 U.S. 327, 337; UNITED STATES V.
PERRYMAN, 100 U.S. 235, 238. 

FN14  UNITED STATES V. MORROW, 266 U.S. 531, 535. 

FN15  CF. STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258 U.S. 346,
356. 
..END :




CHIPPEWA INDIANS V. U.S., 305 U.S. 479 


NO. 244.  ARGUED DECEMBER 9, 12, 1938.  - DECIDED JANUARY 3, 1939.  - 87
CT. CLS. 1, AFFIRMED. 


1.  THE ACT OF MAY 23, 1908, WHICH CREATED A NATIONAL FOREST OF LANDS
THEN HELD BY THE GOVERNMENT IN TRUST FOR THE CHIPPEWA TRIBE OF INDIANS
AND PROVIDED FOR PAYMENTS OF COMPENSATION TO THE INDIANS INCLUDING THE
VALUE OF TIMBER TO BE APPRAISED, WAS A COMPLETE TAKING AT THE TIME THE
ACT BECAME EFFECTIVE, AND THE VALUE OF SUCH TIMBER IS DETERMINED AS OF
THE DATE OF THE ACT RATHER THAN AS OF THE TIME OF THE MAKING AND
APPROVAL OF THE APPRAISAL, MANY YEARS LATER.  P. 480. 

2.  THE LEGISLATION CONFERRING ON THE COURT OF CLAIMS JURISDICTION TO
ADJUDICATE ALL LEGAL AND EQUITABLE CLAIMS OF THE CHIPPEWA INDIANS OF
MINNESOTA ARISING UNDER OR GROWING OUT OF THE ACT OF JANUARY 14, 1889,
OR ARISING UNDER OR GROWING OUT OF ANY SUBSEQUENT ACT OF CONGRESS IN
RELATION TO INDIAN AFFAIRS, DID NOT INCLUDE A CLAIM ON ACCOUNT OF LAND
ALLEGED TO HAVE BEEN EXCLUDED FROM INDIAN RESERVATIONS THROUGH
ERRONEOUS PUBLIC SURVEYS IN 1872-1885 AND TO HAVE BEEN APPROPRIATED AND
SOLD BY THE GOVERNMENT, BEFORE THE ACT OF 1889 WAS PASSED.  P. 483. 

THE TERMS OF THE ACT OF 1889 WERE RESTRICTED TO THE CHIPPEWA
RESERVATIONS THEN EXISTING (1889) IN MINNESOTA.  NONE OF THE SUBSEQUENT
ACTS, RELATING TO INDIAN AFFAIRS, UPON WHICH THE INDIANS RELY EXPANDED
THE PROVISIONS OF THE 1889 ACT SO AS TO INCLUDE CONGRESSIONAL TREATMENT
OF THE TRANSACTIONS MADE THE BASIS OF THIS CLAIM. 

CHIPPEWA INDIANS OF MINNESOTA V. UNITED STATES. 

APPEAL FROM THE COURT OF CLAIMS. 

APPEAL FROM A JUDGMENT DISMISSING TWO CLAIMS AGAINST THE UNITED
STATES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE CHIPPEWA INDIANS FILED SUIT IN THE COURT OF CLAIMS ASSERTING TWO
SEPARATE CLAIMS AGAINST THE GOVERNMENT.  THE GOVERNMENT PLEADED OFFSETS
GREATLY IN EXCESS OF THE CLAIMS OF THE TRIBE.  DISMISSING THE TRIBE'S
PETITION AS TO BOTH ITS CLAIMS,  FN1  THE COURT FOUND IT UNNECESSARY TO
PASS UPON THE GOVERNMENT'S OFFSETS, AND THEREFORE DENIED THEM WITHOUT
PREJUDICE.  THE CAUSE IS HERE ON APPEAL BY VIRTUE OF A SPECIAL ACT OF
CONGRESS REQUIRING OUR REVIEW OF THE JUDGMENT OF THE COURT OF CLAIMS. 
FN2 

AS TO THE FIRST CLAIM.  A CONGRESSIONAL ACT OF MAY 23, 1908, CREATED
A NATIONAL FOREST UPON LANDS THEN IN POSSESSION OF THE UNITED STATES
BUT HELD BY THE GOVERNMENT AS A TRUSTEE FOR THE BENEFIT OF THE CHIPPEWA
INDIAN TRIBE.  FN3  THIS ACT AUTHORIZED THE SECRETARY OF THE INTERIOR
TO "PROCEED WITH THE SALE OF THE MERCHANTABLE PINE TIMBER" UPON CERTAIN
OF THESE LANDS; AND PROVIDED FOR AN APPRAISAL "FORTHWITH" OF THE TIMBER
ON THE LANDS; FOR PAYMENT TO THE INDIANS OF THE APPRAISED VALUE PLUS
PAYMENTS RECEIVED FROM THE SALE OF ANY TIMBER BY THE SECRETARY OF THE
INTERIOR PRIOR TO THE APPRAISAL; AND FOR PAYMENT TO THE TRIBE OF $1.25
PER ACRE FOR ALL OF THE LANDS APPROPRIATED.  APPRAISAL WAS NOT MADE
"FORTHWITH," BUT IN 1922.  IN 1908, WHEN THE ACT WAS PASSED, CERTAIN
TYPES OF THE TIMBER WERE NOT "MERCHANTABLE" AND HAD NO VALUE.  BY 1923,
HOWEVER, WHEN THE APPRAISAL WAS COMPLETED AND APPROVED, THESE
PARTICULAR TIMBERS WERE APPRAISED AT $1,060,887.07.  IN VIEW OF THE
LONG DELAY IN MAKING THE APPRAISAL AND PAYMENT, APPROXIMATELY $490,000
IN INTEREST WAS APPROPRIATED FOR THE BENEFIT OF THE TRIBE IN 1926.  THE
COURT OF CLAIMS CONSTRUED THE 1908 ACT AS AN APPROPRIATION OF THE LANDS
AND TIMBER FOR A PUBLIC USE AT THE DATE OF ENACTMENT, AND FINDING THE
TIMBERS IN QUESTION WITHOUT A MERCHANTABLE VALUE AT THAT TIME, DECIDED
AGAINST THE TRIBE ON THIS CLAIM. 

THE SOLE QUESTION RAISED BY APPELLANTS' ASSIGNMENT OF ERROR WITH
REFERENCE TO THIS FIRST CLAIM ATTACKS THE COURT OF CLAIMS' HOLDING -
BASED ON ITS CONSTRUCTION OF THE ACT OF 1908 - THAT THE APPROPRIATION
OF THE TRIBE'S LAND AND TIMBER WAS EFFECTED BY THAT ACT AND AS OF THE
DATE OF THE ACT, AND THAT COURT'S FAILURE TO HOLD THAT THE
APPROPRIATION OCCURRED WHEN THE TIMBER WAS APPRAISED AND THE APPRAISAL
APPROVED IN APRIL, 1923. 

THE FINDINGS DO NOT SHOW AS CLEARLY AS MIGHT BE DESIRED THAT THE
TIMBER WAS WITHOUT MERCHANTABLE VALUE IN 1908.  HOWEVER, THERE IS A
COMPLETE ABSENCE OF ANY CONTROVERSY ON THIS POINT, AND APPELLANTS WERE
NOT DENIED THE RIGHT TO INTRODUCE EVIDENCE TO ESTABLISH THE VALUE OF
THE PROPERTY.  WHEN THESE FINDINGS ARE CONSIDERED WITH THE PLEADINGS
AND ARE CLARIFIED BY THE OPINION OF THE COURT BELOW, ALL POSSIBLE DOUBT
AS TO THEIR MEANING DISAPPEARS, AND THEY SHOW THAT THE COURT FOUND A
LACK OF ANY MERCHANTABLE VALUE IN 1908.  FN4 

ACTUAL APPROPRIATION OF THE LAND OR TIMBER BY THE UNITED STATES IS
ADMITTED.  JUST COMPENSATION FOR THE PROPERTY APPROPRIATED MUST BE ITS
VALUE AS OF THE DATE WHEN THE TRIBE'S INTEREST IN THE PROPERTY WAS
TAKEN.  FN5 IT IS AGREED THAT UNTIL THE PASSAGE OF THE ACT OF 1908 THE
GOVERNMENT HELD POSSESSION OF THE LAND AND TIMBER AS TRUSTEE FOR THE
TRIBE.  UNDER THE TRUST THE GOVERNMENT WAS CHARGED WITH DISPOSAL OF THE
PROPERTY FOR THE BENEFIT OF THE TRIBE.  IF THE ACT OF 1908 ACTUALLY
DEPRIVED THE TRIBE OF ITS BENEFICIAL INTEREST IN THE PROPERTY, THE ACT
REPRESENTED AN EXERCISE OF THE POWER OF EMINENT DOMAIN AND VESTED -
WHEN ENACTED - COMPLETE TITLE IN THE GOVERNMENT.  THIS WOULD BE AN
APPROPRIATION - A COMPLETE TAKING OF PROPERTY - AT THE TIME THE ACT
BECAME EFFECTIVE.  FN6 

WE NEED LOOK NO FURTHER THAN THE LANGUAGE OF THIS ACT TO ASCERTAIN
ITS EFFECT.  THE VERY FIRST WORDS AFTER THE ENACTING CLAUSE ARE "  ...
THERE IS HEREBY CREATED IN THE STATE OF MINNESOTA A NATIONAL FOREST
CONSISTING OF LANDS AND TERRITORY DESCRIBED AS FOLLOWS,  ...  "  THERE
FOLLOWS A DESCRIPTION OF THE LANDS IN QUESTION BY METES AND BOUNDS. 
THROUGHOUT THE ACT THERE ARE REPEATED DECLARATIONS REFERRING TO THE
NATIONAL FOREST "HEREBY CREATED."  IT WOULD HAVE BEEN DIFFICULT FOR
CONGRESS TO HAVE SELECTED LANGUAGE MORE CLEARLY EXPRESSING THE INTENT
AND PURPOSE TO DEPRIVE THE TRIBE COMPLETELY - BY THE ACT - OF ALL ITS
REMAINING BENEFICIAL INTEREST IN THE PROPERTY. 

APPELLANTS URGE THAT APPROPRIATION OF THE PROPERTY DID NOT TAKE PLACE
UNTIL THE APPRAISAL OF THE TIMBER WAS APPROVED IN 1923.  IN SUPPORT OF
THIS CONTENTION THEY RELY CHIEFLY UPON THE FOLLOWING PROVISIONS OF SEC.
5 OF THE ACT:  "  ...  ALL MONEYS RECEIVED FROM THE SALE OF TIMBER FROM
ANY OF THE LAND SET ASIDE BY THIS ACT FOR A NATIONAL FOREST, PRIOR TO
THE APPRAISAL HEREIN PROVIDED FOR ...  SHALL BE PLACED TO THE CREDIT OF
THE CHIPPEWA INDIANS IN THE STATE OF MINNESOTA  ...  AND AFTER SAID
APPRAISAL THE NATIONAL FOREST HEREBY CREATED, AS ABOVE DESCRIBED, SHALL
BE SUBJECT TO ALL GENERAL LAWS AND REGULATIONS  ...  GOVERNING NATIONAL
FORESTS,  ...  "  BUT THIS PROVISION BY ITS VERY TERMS CHARACTERIZES
THE PROPERTY AS "THE NATIONAL FOREST HEREBY CREATED" AND DIRECTS
DISPOSITION OF "ALL MONEYS RECEIVED FROM THE SALE OF TIMBER FROM ANY OF
THE LAND SET ASIDE BY THIS ACT FOR A NATIONAL FOREST,  ...  " THE FACT
THAT THE LANDS WERE NOT TO BE SUBJECTED TO THE GENERAL LAWS AND
REGULATIONS GOVERNING NATIONAL FORESTS UNTIL AFTER THE APPRAISAL WAS
MADE INDICATES NO CONGRESSIONAL INTENT TO DELAY THE CREATION OF THE
NATIONAL FOREST.  THE GOVERNMENT ALREADY HAD LEGAL TITLE TO, AND
POSSESSION OF THE PROPERTY, AND THE ACT CONTEMPLATED THAT THE APPRAISAL
SHOULD BE MADE "FORTHWITH."  SINCE THE TRIBE WAS TO BE PAID THE
APPRAISED VALUE OF ALL THE TIMBER, THE ACT APPROPRIATELY PROVIDED THAT
PROCEEDS FOR SALES OF ANY TIMBER SOLD BEFORE APPRAISAL SHOULD BE PAID
TO THE TRIBE. 

UPON EXAMINATION OF THE ACT WE ARE OF THE OPINION THAT THE COURT OF
CLAIMS CORRECTLY DECIDED THAT THE APPROPRIATION OF THE LAND AND TIMBER
OCCURRED IN 1908, WHEN THE ACT BECAME THE LAW, AND THAT ACCORDINGLY IT
PROPERLY DISMISSED THE CLAIM. 

SECOND.  THE JURISDICTIONAL ACT UNDER WHICH THE PETITION IN THIS
CAUSE WAS FILED  FN7  CONFERRED JURISDICTION UPON THE COURT OF CLAIMS
"TO HEAR, EXAMINE, AND ADJUDICATE AND RENDER JUDGMENT IN ANY AND ALL
LEGAL AND EQUITABLE CLAIMS ARISING UNDER OR GROWING OUT OF THE ACT OF
JANUARY 14, 1889 ...  , OR ARISING UNDER OR GROWING OUT OF ANY
SUBSEQUENT ACT OF CONGRESS IN RELATION TO INDIAN AFFAIRS WHICH SAID
CHIPPEWA INDIANS OF MINNESOTA MAY HAVE AGAINST THE UNITED STATES,  ...
" APPELLANTS' SECOND CLAIM WAS BASED UPON ALLEGATIONS THAT THE
GOVERNMENT MADE ERRONEOUS SURVEYS OF INDIAN LANDS BETWEEN AND INCLUDING
THE YEARS 1872 AND 1885; THAT THESE ERRORS RESULTED IN WRONGFULLY
EXCLUDING THE LANDS FROM INDIAN RESERVATIONS; AND THAT THE GOVERNMENT
THEREAFTER APPROPRIATED AND SOLD THESE LANDS (SOME OF WHICH BELONGED TO
APPELLANTS) BEFORE THE ACT OF 1889 WAS PASSED.  INSPECTION OF THE 1889
ACT  FN8  DISCLOSES THAT NONE OF ITS PROVISIONS RELATED TO THESE LANDS
PREVIOUSLY DISPOSED OF BY THE GOVERNMENT.  ITS TERMS WERE RESTRICTED TO
THE CHIPPEWA RESERVATIONS THEN EXISTING (1889) IN MINNESOTA.  NONE OF
THE SUBSEQUENT ACTS, RELATING TO INDIAN AFFAIRS, UPON WHICH APPELLANTS
RELY  FN9  EXPANDED THE PROVISIONS OF THE 1889 ACT SO AS TO INCLUDE
CONGRESSIONAL TREATMENT OF THE TRANSACTIONS MADE THE BASIS OF THIS
SECOND CLAIM.  SINCE THIS SECOND CLAIM DID NOT ARISE FROM OR GROW OUT
OF THE 1889 ACT OR SUBSEQUENT ACTS, THE COURT OF CLAIMS PROPERLY
DISMISSED FOR WANT OF JURISDICTION. 

THE JUDGMENT IS AFFIRMED. 

FN1  87 CT. CLS. 1. 

FN2  49 STAT. 1826; ACT OF JUNE 22, 1936, C. 714. 

FN3  35 STAT. 268. 

FN4  CF. ACKERLIND V. UNITED STATES, 240 U.S. 531, 535; CARTAS V.
UNITED STATES, 250 U.S. 545, 546; AMERICAN PROPELLER CO. V. UNITED
STATES, 300 U.S. 475, 479, 480. 

FN5  UNITED STATES V. ROGERS, 255 U.S. 163, 169; SHOSHONE TRIBE V.
UNITED STATES, 299 U.S. 476. 

FN6  HURLEY V. KINCAID, 285 U.S. 95, 103, 104; UNITED STATES V.
LYNAH, 188 U.S. 445, 470. 

FN7  44 STAT. 555, AS AMENDED BY ACTS APPROVED APRIL 11, 1928(45
STAT. 423) AND JUNE 18, 1934(48 STAT. 979). 

FN8  25 STAT. 642(1889). 

FN9  32 STAT. 400(1902); 35 STAT. 268(1908). 
..END :






















LYON V. MUTUAL BENEFIT ASSN., 305 U.S. 484 


NO. 189.  SUBMITTED DECEMBER 12, 1938.  - DECIDED JANUARY 3, 1939.  - 95
F.2D 528, REVERSED. 


1.  A HEALTH AND ACCIDENT POLICY (GOVERNED BY THE LAW OF ARKANSAS),
ISSUED AND EFFECTIVE DECEMBER 31, 1926, AND RECITING AND PROVIDING THAT
IT IS ISSUED "IN CONSIDERATION OF  ...  THE PAYMENT IN ADVANCE OF
$74.00 THE FIRST YEAR" AND THAT "THE PAYMENT IN ADVANCE OF  ...  $16.00
QUARTERLY THEREAFTER, BEGINNING WITH APRIL 1, 1927, IS REQUIRED TO KEEP
THIS POLICY IN CONTINUOUS EFFECT," - CONSTRUED AS MEANING AND INTENDING
THAT THE PAYMENT IN ADVANCE OF $74.00 WOULD KEEP THE POLICY IN FORCE
UNTIL DECEMBER 31, 1927, AND THAT PAYMENT OF $16.00 APRIL 1, 1927,
WOULD EXTEND THE POLICY A QUARTERLY PERIOD BEYOND DECEMBER 31, 1927,
AND THAT SUCCESSIVE PAYMENTS OF $16.00 AT THE BEGINNING OF EACH QUARTER
FOLLOWING THE QUARTER BEGINNING APRIL 1, 1927, WOULD EXTEND THE POLICY
CORRESPONDINGLY.  P. 488. 

2.  DELIVERY OF THE POLICY CONTAINING THE RECITAL THAT IT "IS ISSUED
IN CONSIDERATION OF  ... THE PAYMENT IN ADVANCE OF $74.00" ESTABLISHED
PRIMA FACIE THE FACT OF ADVANCE PAYMENT OF THAT AMOUNT.  ID. 

3.  EVIDENCE SUPPLEMENTING THIS INFERENCE AND SHOWING PAYMENT OF
PREMIUMS, WAS NOT INCOMPETENT AS AN ATTEMPT TO ALTER THE TERMS OF THE
POLICY BUT WAS ADMISSIBLE IN PROOF OF PERFORMANCE.  P. 489. 

4.  IN A SUIT TO RECOVER UPON A CONTRACT OF INSURANCE PAYABLE UPON
THE DEATH OF THE INSURED, HELD THAT THERE WAS COMPETENT AND SUBSTANTIAL
EVIDENCE TO SHOW THAT PAYMENTS HAD BEEN MADE TO THE INSURER IN
SUFFICIENT AMOUNT TO KEEP THE POLICY IN FORCE BEYOND THE QUARTERLY
PREMIUM PAYMENT PERIOD IN WHICH THE DEATH OCCURRED; THAT THE EVIDENCE
ON THIS POINT SUPPORTED THE VERDICT AND JUDGMENT OF THE DISTRICT COURT
FOR THE PLAINTIFF; AND THAT REVERSAL OF THE JUDGMENT BY THE CIRCUIT
COURT OF APPEALS WAS ERRONEOUS.  P. 489. 

5.  IN A SUIT IN ARKANSAS UPON AN ARKANSAS INSURANCE POLICY, FEDERAL
JURISDICTION RESTING UPON DIVERSITY OF CITIZENSHIP, THE DISTRICT COURT,
AT THE CLOSE OF THE EVIDENCE AND UPON THE REQUEST OF THE DEFENDANT FOR
A PEREMPTORY INSTRUCTION, DENIED THE REQUEST AND DIRECTED A VERDICT FOR
THE PLAINTIFF.  THERE WAS AMPLE EVIDENCE TO JUSTIFY THE VERDICT.  HELD,
THAT THE COURT, CONSISTENTLY WITH THE CONFORMITY ACT, FOLLOWED THE
ARKANSAS PROCEDURAL RULE GOVERNING THE EFFECT OF A REQUEST FOR A
PEREMPTORY INSTRUCTION, AND THAT THAT RULE DID NOT DEPRIVE THE
DEFENDANT OF ANY CONSTITUTIONAL RIGHT.  P. 490. 

LYON V. MUTUAL BENEFIT HEALTH & ACCIDENT ASSN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 583, TO REVIEW A JUDGMENT REVERSING A JUDGMENT
FOR THE PETITIONER IN AN ACTION TO RECOVER UPON A POLICY OF INSURANCE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, (PLAINTIFF BELOW) BROUGHT SUIT AS BENEFICIARY IN THE
DISTRICT COURT AGAINST RESPONDENT (DEFENDANT BELOW) ON A HEALTH AND
ACCIDENT POLICY ISSUED BY RESPONDENT IN 1926 TO PETITIONER'S HUSBAND. 
PLAINTIFF ALLEGED THAT THE INSURED WAS ACCIDENTALLY KILLED JULY 26,
1934, WHILE THE POLICY WAS IN FULL FORCE AND EFFECT INSURING AGAINST
DEATH RESULTING FROM ACCIDENTAL CAUSES.  AT THE CONCLUSION OF
PLAINTIFF'S EVIDENCE, DEFENDANT DECLINED TO OFFER ANY EVIDENCE AND DID
NO MORE THAN MOVE FOR A PEREMPTORY INSTRUCTION.  DEFENDANT'S MOTION WAS
BASED UPON THE CONTENTIONS THAT (1) THE POLICY WAS NOT IN EFFECT WHEN
INSURED WAS KILLED BECAUSE DEFENDANT HAD EXERCISED AN OPTION GRANTED IT
BY THE POLICY TO REJECT THE QUARTERLY PREMIUM DUE JULY 1, 1934; (2)
THAT THE "PREMIUM RECEIPTS THEMSELVES SHOW THAT THE POLICY TERMINATED
ON THE FIRST DAY OF JULY, 1934, PRIOR TO THE TIME THIS LOSS OCCURRED." 
DEFENDANT'S MOTION FOR PEREMPTORY INSTRUCTION WAS DENIED, DEFENDANT
EXCEPTED, AND THE COURT DIRECTED THE JURY TO RETURN A VERDICT FOR
PLAINTIFF.  DEFENDANT'S EXCEPTION WAS NOTED, THE JURY RENDERED VERDICT
FOR PLAINTIFF, AND THE COURT ENTERED JUDGMENT UPON THE VERDICT. 

THE COURT OF APPEALS REVERSED,  FN1  HOLDING THAT THE POLICY WAS TERM
INSURANCE AND RESERVED TO DEFENDANT THE RIGHT TO REJECT ANY QUARTERLY
PREMIUM ON THE DUE DATE, THAT DEFENDANT HAD PROPERLY EXERCISED ITS
OPTION IN REJECTING THE QUARTERLY PREMIUM DUE JULY 1, 1934, AND THAT
THE POLICY WAS, THEREFORE, TERMINATED PRIOR TO INSURED'S DEATH.  THE
COURT FURTHER HELD THAT NO COMPETENT EVIDENCE HAD SUSTAINED PLAINTIFF'S
ALLEGATIONS THAT THE REQUIRED PREMIUMS HAD BEEN PAID.  WE GRANTED
CERTIORARI.  FN2 

IN THE VIEW WE TAKE OF THE CASE, IT IS UNNECESSARY TO CONSIDER
PLAINTIFF'S CONTENTION THAT THE COURT OF APPEALS ERRED IN HOLDING THAT
DEFENDANT HAD THE OPTION TO CANCEL THE POLICY UPON THE DUE DATE OF ANY
QUARTERLY PREMIUM.  WE FIND THAT THERE WAS COMPETENT AND SUBSTANTIAL
EVIDENCE TO SUSTAIN PLAINTIFF'S ALLEGATION THAT INSURED HAD PAID
PREMIUMS SUFFICIENT TO KEEP THE POLICY IN EFFECT UP TO AND INCLUDING
THE DATE OF INSURED'S DEATH. 

THE EVIDENCE SHOWED THAT: 

THE POLICY SUED ON WAS ISSUED DECEMBER 31, 1926; AFTER ADVANCE
PAYMENT OF $74.00 FOR THE FIRST YEAR'S PREMIUM, THE POLICY WAS
DELIVERED TO INSURED; THEREAFTER, ALL QUARTERLY PREMIUMS WERE PAID TO
THE DEFENDANT'S LOCAL TREASURER LOCATED AT ROGERS, ARKANSAS (WHERE THE
POLICY WAS SOLD AND DELIVERED) UP TO AND INCLUDING THE QUARTERLY
PREMIUM DUE JANUARY 1, 1934; THESE PREMIUMS WERE USUALLY PAID IN
ADVANCE, BUT NOT ALWAYS; BEFORE APRIL 1, 1934, PLAINTIFF AS AGENT FOR
THE INSURED WENT TO THE OFFICE OF THE LOCAL TREASURER AT WHOSE OFFICE
SHE HAD PAID ALL THE OTHER PREMIUMS; HE COULD NOT BE FOUND AT THE
OFFICE; A YOUNG GIRL IN THE OFFICE SUGGESTED THAT THE PAYMENT BE SENT
TO LITTLE ROCK; PLAINTIFF MAILED THAT PAYMENT TO LITTLE ROCK AND
RECEIVED A RECEIPT DATED MARCH 30, 1934; PLAINTIFF HAD NOT THEN
RECEIVED, AND NEVER DID RECEIVE ANY NOTICE FROM THE COMPANY THAT IT HAD
MOVED ITS OFFICE OR CHANGED ITS METHOD OF COLLECTING PREMIUMS; JULY 1,
1934, WHEN THE NEXT PREMIUM WAS DUE SHE WENT TO THE LOCAL TREASURER'S
OFFICE AND FOUND IT CLOSED; DILIGENT SEARCH FOR HIM DISCLOSED THAT NOT
ONLY HAD HIS OFFICE BEEN CLOSED, BUT HE HAD MOVED FROM THE HOUSE IN
WHICH HE HAD FORMERLY RESIDED; CONTINUING TO SEARCH FOR THE TREASURER,
SHE FINALLY FOUND HIM SEVERAL DAYS LATER EARLY IN THE MORNING ENTERING
A CAR IN FRONT OF HIS OFFICE; HE DECLINED TO ACCEPT THE PREMIUM, TOLD
HER TO SEND IT TO LITTLE ROCK, AND INFORMED HER THAT SHE SHOULD HAVE
RECEIVED A NOTICE FROM THE COMPANY TO THAT EFFECT; THAT DAY, JULY 6,
SHE BOUGHT A MONEY ORDER, "ADDRESSED THE ENVELOPE JUST TO THE COMPANY
AT LITTLE ROCK" AND MAILED IT; JULY 13, THE LITTLE ROCK OFFICE OF THE
COMPANY WROTE HER THAT IT COULD NOT ACCEPT THE PAYMENT BECAUSE THE
OMAHA HOME OFFICE HAD NOT SENT AN OFFICIAL RECEIPT FOR THIS POLICY
PAYMENT; IN THAT LETTER AND IN A SUBSEQUENT COMMUNICATION OF JULY 26,
THE LITTLE ROCK OFFICE OFFERED TO REINSTATE THE POLICY BUT WITH
RESTRICTED BENEFITS; ON JULY 26, HOWEVER, THE INSURED WAS KILLED BY
ACCIDENTAL MEANS WITHIN THE TERMS OF THE POLICY.  THE DEFENDANT OFFERED
NO EVIDENCE WHATSOEVER. 

FIRST.  THE POLICY PROVIDES AS TO PREMIUM PAYMENTS THAT "THIS POLICY
IS ISSUED IN CONSIDERATION OF  ...  THE PAYMENT IN ADVANCE OF $74.00
THE FIRST YEAR, AND THE PAYMENT IN ADVANCE OF  ... $16.00 QUARTERLY
THEREAFTER, BEGINNING WITH APRIL 1, 1927, IS REQUIRED TO KEEP THIS
POLICY IN CONTINUOUS EFFECT."  THIS LANGUAGE IS CLEAR AND NOTHING
ELSEWHERE IN THE POLICY ALTERS ITS MEANING.  TRUE, THE PRINTED
APPLICATION SIGNED BY DECEASED, DECEMBER 27, 1926, AND UPON WHICH THE
POLICY WAS ISSUED FOUR DAYS LATER, CONTAINS THE PRINTED QUESTION, "WHAT
IS THE PREMIUM?"  AND A TYPEWRITTEN ANSWER, "$16.00 QUARTERLY." 
HOWEVER, THIS IS NOT INCONSISTENT WITH THE PROVISION OF THE POLICY FOR
THE PAYMENT OF $74.00 IN ADVANCE AND $16.00 QUARTERLY PREMIUMS.  THE
PROVISION FOR PAYMENT IN ADVANCE OF $74.00 THE FIRST YEAR REQUIRED
PAYMENT BEFORE THE DATE THE POLICY TOOK EFFECT, WHICH ACCORDING TO THE
POLICY WAS THE DATE OF ISSUE.  UNDER THE LANGUAGE OF THIS PROVISION
ACTUAL PAYMENT OF A YEAR'S PREMIUM IN ADVANCE PURCHASED INSURANCE FOR A
YEAR.  THE DATES FOR FURTHER PAYMENTS TO EXTEND THE POLICY BEYOND A
YEAR COULD BE AND WERE FIXED BY THE POLICY CONTRACT.  PAYMENT FOR THE
FIRST YEAR CARRIED THE POLICY TO DECEMBER 31, 1927, AND THE FIRST
QUARTERLY PAYMENT, DUE BY THE POLICY'S TERMS APRIL 1, 1927 AND PAID IN
ADVANCE OF THAT DATE, EXTENDED THE POLICY ANOTHER QUARTER BEYOND
DECEMBER 31, 1927.  EACH SUCCEEDING QUARTERLY PAYMENT CARRIED THE
POLICY A CORRESPONDING THREE MONTHS.  THE QUESTIONS BEFORE THE TRIAL
COURT WERE WHETHER THE $74.00 FIRST PAYMENT WAS ACTUALLY MADE, AND
WHETHER THEREAFTER QUARTERLY PAYMENTS WERE MADE IN AN AMOUNT SUFFICIENT
TO CARRY THE POLICY FROM THE END OF THE FIRST YEAR UP TO AND INCLUDING
THE QUARTERLY PERIOD IN WHICH DEATH OF INSURED OCCURRED. 

SINCE THE POLICY RECITES THAT "THIS POLICY IS ISSUED IN CONSIDERATION
OF  ...  THE PAYMENT IN ADVANCE OF $74.00 THE FIRST YEAR  ...  ,"
DELIVERY OF THE POLICY PRIMA FACIE ESTABLISHED THE FACT OF THE ADVANCE
PAYMENT OF THAT AMOUNT.  FN3  THIS EVIDENCE WAS REINFORCED BY
PLAINTIFF'S TESTIMONY THAT THE $74.00 WAS SO PAID.  DEFENDANT MADE NO
OBJECTION TO THIS TESTIMONY.  ON CROSS-EXAMINATION BY DEFENDANT,
PLAINTIFF AMPLIFIED HER TESTIMONY AS TO WHY SHE PAID THE QUARTERLY
PREMIUM IN APRIL, 1927, AFTER HAVING ALREADY PAID THE PREMIUM FOR A
WHOLE YEAR BEFORE THE POLICY WAS DELIVERED.  SHE EXPLAINED THAT THIS
WAS BECAUSE DEFENDANT'S REPRESENTATIVE TOLD HER AND THE INSURED THAT
"THERE WERE NO DAYS OF GRACE INCLUDED IN THE POLICY, BUT IF WE PAID A
YEAR'S PREMIUM IN ADVANCE THAT WOULD TAKE THE PLACE OF THESE DAYS OF
GRACE." 

ALTHOUGH DEFENDANT DID NOT OBJECT TO PLAINTIFF'S TESTIMONY OF
PAYMENT, AND EVOKED EXPLANATION OF IT ON CROSSEXAMINATION, THE COURT OF
APPEALS, WITHOUT ANY REFERENCE TO GOVERNING STATE LAW,  FN4 CONCLUDED
THAT THE EVIDENCE WAS INCOMPETENT.  THAT COURT BELIEVED THIS EVIDENCE
REPRESENTED AN EFFORT TO ALTER THE TERMS OF THE WRITTEN POLICY CONTRACT
BY AN ORAL AGREEMENT VIOLATING THE PROVISIONS THAT "THIS POLICY  ...
CONTAINS THE ENTIRE CONTRACT OF INSURANCE," AND "NO AGENT HAS AUTHORITY
TO CHANGE THIS POLICY OR TO WAIVE ANY OF ITS PROVISIONS."  BUT THIS
EVIDENCE OF PAYMENT OF PREMIUMS AS REQUIRED BY THE POLICY, DID NOT
AFFECT THE TERMS OF THE WRITTEN CONTRACT.  IT WAS OFFERED TO PROVE THE
DISCHARGE OF THE INSURED'S OBLIGATION UNDER THE CONTRACT.  THE EVIDENCE
WAS MATERIAL TO ESTABLISH THE FACT OF PAYMENT.  NO STATUTES OF ARKANSAS
OR DECISIONS OF THE HIGHEST COURT OF THAT STATE  FN5  HAVE BEEN POINTED
OUT WHICH WOULD MAKE SUCH RELEVANT EVIDENCE INCOMPETENT.  FN6  THE
$74.00 PAYMENT FOR THE FIRST YEAR, TOGETHER WITH QUARTERLY PAYMENTS
UNDISPUTEDLY MADE THROUGH APRIL 1, 1934, CARRIED THE POLICY TO JANUARY
1, 1935.  WE, THEREFORE, FIND IT UNNECESSARY TO CONSIDER WHETHER THE
SIX DAYS DELAY IN PAYING THE JULY 1, 1934 PREMIUM WAS EXCUSED BY REASON
OF ATTENDANT CIRCUMSTANCES. 

SECOND.  THE CONFORMITY ACT REQUIRES THAT "THE PRACTICE, PLEADINGS,
AND FORMS AND MODES OF PROCEEDING IN CIVIL CAUSES  ...  IN THE DISTRICT
COURTS, SHALL CONFORM, AS NEAR AS MAY BE, TO THE PRACTICE, PLEADINGS,
AND FORMS AND MODES OF PROCEEDING EXISTING AT THE TIME IN LIKE CAUSES
IN THE COURTS OF RECORD OF THE STATE WITHIN WHICH SUCH DISTRICT COURTS
ARE HELD, ANY RULE OF COURT TO THE CONTRARY NOTWITHSTANDING."  FN7 

OUR ATTENTION HAS NOT BEEN DIRECTED TO ANY MORE AUTHORITATIVE
ARKANSAS RULING GOVERNING THE PROCEDURAL EFFECT OF A REQUEST FOR A
PEREMPTORY INSTRUCTION WITHOUT MORE, THAN THE DECISION OF THE SUPREME
COURT OF ARKANSAS IN A. B. SMITH LUMBER CO. V. PORTIS BROS., 140 ARK.
356; 215 S.W. 590.  THERE THE COURT SAID (AT 358, 359, 360):  "THE
CAUSE  ...  PROCEEDED TO A HEARING UPON THE PLEADINGS AND EVIDENCE. 
WHEN THE EVIDENCE WAS CONCLUDED, APPELLANT REQUESTED A PEREMPTORY
INSTRUCTION, AND NO OTHER.  THE COURT REFUSED THE INSTRUCTION OVER THE
OBJECTION OF APPELLANT, AND, ON ITS OWN MOTION, INSTRUCTED THE JURY TO
RETURN A VERDICT IN FAVOR OF APPELLEES  ...  OVER THE OBJECTION AND
EXCEPTION OF APPELLANT.  ...  AND THE COURT, ON ITS OWN MOTION, GAVE A
PEREMPTORY INSTRUCTION FOR APPELLEE.  THE REQUEST FOR A PEREMPTORY
INSTRUCTION BY APPELLANT AND THE GIVING OF THE PEREMPTORY INSTRUCTION
BY THE COURT FOR THE ADVERSE PARTY WAS TANTAMOUNT TO SUBMITTING THE
CASE TO THE COURT SITTING AS A JURY, AND THE COURT'S FINDING BECAME A
VERDICT AS MUCH SO AS IF IT HAD BEEN RENDERED BY A JURY UPON THE ISSUES
AND EVIDENCE.  ...  SO THE QUESTION PRESENTED BY THIS RECORD IS NOT
WHETHER THERE WAS SUFFICIENT EVIDENCE IN THE RECORD TO WARRANT THE
COURT IN SENDING THE CASE TO THE JURY UPON THE ISSUE OF WHETHER OR NOT
THE UNDERTAKING WAS COLLATERAL, BUT THE QUESTION IS, WAS THERE ANY
LEGAL EVIDENCE TO SUPPORT THE FINDING OF THE COURT THAT THE UNDERTAKING
WAS ORIGINAL?" 

THIS RULE OF PROCEDURE CLOSELY APPROACHES THAT FREQUENTLY APPROVED BY
THIS COURT ON THE SAME SUBJECT, TO THE EFFECT THAT "'WHERE BOTH PARTIES
REQUEST A PEREMPTORY INSTRUCTION AND DO NOTHING MORE THEY THEREBY
ASSUME THE FACTS TO BE UNDISPUTED AND, IN EFFECT, SUBMIT TO THE TRIAL
JUDGE THE DETERMINATION OF THE INFERENCES PROPER TO BE DRAWN
THEREFROM'.  AND UPON REVIEW, A FINDING OF FACT BY THE TRIAL COURT
UNDER SUCH CIRCUMSTANCES MUST STAND IF THE RECORD DISCLOSES SUBSTANTIAL
EVIDENCE TO SUPPORT IT."  FN8 

HERE, THERE WAS AMPLE EVIDENCE UPON WHICH TO JUSTIFY THE VERDICT. 
DEFENDANT OBVIOUSLY PROCEEDED - AFTER THE EVIDENCE WAS CLOSED - UPON
THE BELIEF THAT THE FACTS AND ALL THE INFERENCES TO BE DRAWN THEREFROM
RAISED ONLY A QUESTION OF LAW FOR THE COURT - NOT ONE OF FACT FOR THE
JURY; AND PLAINTIFF ACQUIESCED.  NEITHER DEFENDANT NOR PLAINTIFF DID
ANYTHING TO INDICATE A DESIRE OR BELIEF THAT THE JURY SHOULD PASS UPON
ANY FACTS.  THUS, THE DISTRICT COURT SITTING IN ARKANSAS, HAVING
JURISDICTION ONLY BY REASON OF DIVERSITY OF CITIZENSHIP AND TRYING A
SUIT INVOLVING AN ARKANSAS CONTRACT, FOLLOWED THE PROCEDURAL RULE
ANNOUNCED BY THE HIGHEST COURT OF THAT STATE. 

WHILE LITIGANTS IN FEDERAL COURTS CANNOT - BY RULES OF PROCEDURE - BE
DEPRIVED OF FUNDAMENTAL RIGHTS GUARANTEED BY THE CONSTITUTION AND LAWS
OF THE UNITED STATES, THE LOCAL ARKANSAS RULE FOLLOWED BY THE DISTRICT
COURT DOES NOT RESULT IN SUCH DEPRIVATION.  IN EFFECT, THAT LOCAL RULE
IS PRACTICALLY IDENTICAL WITH THE FEDERAL RULE WHICH TREATS A REQUEST
BY BOTH PARTIES FOR PEREMPTORY INSTRUCTIONS WITHOUT MORE AS A
SUBMISSION OF ISSUES OF FACT TO THE COURT.  IT IS ESSENTIAL THAT THE
RIGHT TO TRIAL BY JURY BE SCRUPULOUSLY SAFEGUARDED, AND A STATE RULE OF
PROCEDURE ENTRENCHING UPON THIS RIGHT WOULD NOT REQUIRE OBSERVANCE BY
FEDERAL COURTS.  FN9  HOWEVER, THIS ARKANSAS PROCEDURAL RULE - SO
CLOSELY APPROXIMATING THE FEDERAL RULE - DOES NOT AMOUNT TO A
PROHIBITED INVASION OF FEDERAL RIGHTS.  SINCE THE DISTRICT COURT
FOLLOWED THE ARKANSAS PROCEDURAL RULE, AND THE VERDICT AND JUDGMENT
WERE SUPPORTED BY COMPETENT AND SUBSTANTIAL EVIDENCE, IT FOLLOWS THAT
THE COURT OF APPEALS ERRONEOUSLY REVERSED THE DISTRICT COURT'S
JUDGMENT.  THE JUDGMENT OF THE COURT OF APPEALS IS, THEREFORE, REVERSED
AND THAT OF THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  95 F.2D 528. 

FN2  POST, P. 583; CF. RUHLIN V. NEW YORK LIFE INS. CO., 304 U.S.
202, 206. 

FN3  WASHINGTON FIDELITY NAT. INS. CO. V. ANDERSON, 187 ARK. 974,
976; 63 S.W.2D 535; NATIONAL EQUITY LIFE INS. CO. V. PARKER, 190 ARK.
642, 644; 80 S.W.2D 630; CF. SPLAWN V. MARTIN, 17 ARK. 146, 153. 

FN4  SEE 28 U.S.C., SEC. 724.  CF. D'WOLF V. RABAUD, 1 PET. 476, 502;
WILCOX V. HUNT, 13 PET. 378, 379; NASHUA SAVINGS BANK V. ANGLO-AMERICAN
CO., 189 U.S. 221, 228; CF. ERIE R. CO. V. TOMPKINS, 304 U.S. 64. 
FN5  CF. ERIE R. CO. V. TOMPKINS, SUPRA. 

FN6  CF. SPLAWN V. MARTIN, SUPRA; VAUGINE V. TAYLOR, 18 ARK. 65, 79;
BORDEN V. PEAY, 20 ARK. 293, 306; HILL V. FIRST NATIONAL BANK, 129 ARK.
265, 269; 195 S.W. 678; LAY V. GAINES, 130 ARK. 167, 170; 196 S.W.
919. 

FN7  28 U.S.C., SEC. 724. 

FN8  WILLIAMS V. VREELAND, 250 U.S. 295, 298; AETNA INS. CO. V.
KENNEDY, 301 U.S. 389, 393. 

FN9  CF. DAVIS V. WECHSLER, 263 U.S. 22.    MR. JUSTICE ROBERTS DID
NOT PARTICIPATE IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BUTLER: 

MR. JUSTICE MCREYNOLDS AND I ARE UNABLE TO ACCEPT THE OPINION OR TO
AGREE WITH THE JUDGMENT OF THE COURT JUST ANNOUNCED. 

WE ARE OF OPINION THAT THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
SHOULD BE REVERSED, AND THAT, FOR THE REASONS GIVEN IN THE SEPARATE
OPINION OF CIRCUIT JUDGE STONE, 95 F.2D 528, 534, THE CASE SHOULD BE
REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS IN ACCORDANCE WITH THAT
OPINION. 
..END :




CONNECTICUT RY. CO. V. PALMER, 305 U.S. 493 


NO. 63.  ARGUED NOVEMBER 10, 14, 1938.  - DECIDED JANUARY 3, 1939.  - 95
F.2D 483, REVERSED. 


1.  REVIEW BY CERTIORARI IS LIMITED TO THE GROUNDS UPON WHICH THE WRIT
WAS SOUGHT AND ALLOWED.  A RULING TO WHICH THERE WAS BUT A MERE
REFERENCE IN THE PETITION, WITHOUT REQUEST FOR REVIEW, NOT CONSIDERED. 
P. 496. 

2.  THE MEASURE OF DAMAGES UPON REJECTION OF A LEASE IN A RAILROAD
REORGANIZATION PROCEEDING UNDER SEC. 77 OF THE BANKRUPTCY ACT, AS
AMENDED AUG. 27, 1935, IS THE ACTUAL DAMAGES DETERMINABLE AS IN EQUITY
PROCEEDINGS AND UPON EVIDENCE.  THE ACT FIXES NO LIMIT TO THE AMOUNT OF
ACTUAL DAMAGES.  ONLY SUCH DAMAGES AS ARE SUSCEPTIBLE OF DEFINITE,
SATISFACTORY PROOF MAY BE ALLOWED.  PP. 497-503. 

THE PROVISIONS OF THE ACT WITH RESPECT TO SUCH CLAIMS IN RAILROAD
REORGANIZATION ARE COMPARED WITH THOSE LIMITING LIKE CLAIMS AGAINST
INDIVIDUAL DEBTORS AND IN GENERAL CORPORATE REORGANIZATION. 

3. THE CONCLUSION THAT, IN A RAILROAD REORGANIZATION PROCEEDING UNDER
SEC. 77 OF THE BANKRUPTCY ACT AS AMENDED, UPON REJECTION OF A LEASE
WITH 969 YEARS STILL TO RUN, THE LESSOR'S DAMAGES WERE LIMITED TO THE
RENT ACCRUED, UP TO THE LATEST PRACTICABLE DATE IN THE REORGANIZATION
FOR PRESENTATION OF ITS CLAIM, DIMINISHED BY THE NET EARNINGS OF THE
PROPERTY - THUS BARRING PROOF OF DAMAGES FOR LOSS OF RENT FALLING DUE
AFTER THAT DATE, AND DESTROYING, BY OPERATION OF SUBDIVISION (F), THE
RIGHT OF FURTHER RECOVERY FOR SUCH INJURY FROM THE DEBTOR AFTER
REORGANIZATION - HELD ERRONEOUS.  ID. 

4.  IMPROVEMENTS AND SINKING FUNDS WHICH CAME INTO THE POSSESSION OF
THE LESSOR BY THE TERMS OF THE LEASE, HELD NOT TO BE CONSIDERED AS
OFFSETS AGAINST THE CLAIM OF THE LESSOR HEREIN.  P. 505. 

5.  SECTION 63(A)(9) OF THE BANKRUPTCY ACT HELD INAPPLICABLE TO THE
PRESENT CONTROVERSY.  P. 506. 

CONNECTICUT RAILWAY & LIGHTING CO. V. PALMER ET AL., TRUSTEES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 584, TO REVIEW A DECREE WHICH MODIFIED AND
AFFIRMED A DECREE OF THE BANKRUPTCY COURT DETERMINING A CLAIM ARISING
OUT OF THE REJECTION OF A LEASE IN A PROCEEDING UNDER SEC. 77 OF THE
BANKRUPTCY ACT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CASE POSES THE QUESTION OF THE CORRECT MEASURE OF DAMAGES
ALLOWABLE TO A LESSOR CREDITOR OF A RAILROAD DEBTOR FOR THE REJECTION
OF A LEASE UNDER THE REORGANIZATION PROVISIONS OF SEC. 77 OF THE
BANKRUPTCY ACT.  THE DETERMINATION DEPENDS UPON THE MEANING OF THE
DEFINITIVE CLAUSE "TO THE EXTENT OF THE ACTUAL DAMAGE OR INJURY
DETERMINED IN ACCORDANCE WITH PRINCIPLES OBTAINING IN EQUITY
PROCEEDINGS."  N1  CERTIORARI WAS GRANTED, UNDER SEC. 240A OF THE
JUDICIAL CODE, BECAUSE THE CASE INVOLVES AN IMPORTANT QUESTION OF
FEDERAL LAW WHICH SHOULD BE SETTLED BY THIS COURT. 

ON DECEMBER 19, 1906, THE CONNECTICUT RAILWAY AND LIGHTING COMPANY,
PETITIONER HERE, LEASED CERTAIN GAS, ELECTRIC AND STREET RAILWAY
PROPERTIES FOR 999 YEARS TO THE CONSOLIDATED RAILWAY COMPANY,
PREDECESSOR OF THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY,
HEREINAFTER REFERRED TO AS THE NEW HAVEN.  BY A SUBSEQUENT ASSIGNMENT
THE NEW HAVEN WAS DIVESTED OF EVERYTHING EXCEPT THE TRANSPORTATION
PROPERTIES INVOLVED HERE.  ON FEBRUARY 28, 1910, THESE WERE TRANSFERRED
TO A WHOLLYOWNED SUBSIDIARY OF THE NEW HAVEN.  SOME QUESTION AROSE IN
THE REORGANIZATION PROCEEDINGS AS TO THE NEW HAVEN'S LIABILITY ON THE
1906 LEASE AFTER THIS TRANSFER TO ITS SUBSIDIARY.  THE LOWER COURT,
HOWEVER, HELD THE NEW HAVEN LIABLE AS LESSEE, AND, NO ATTACK HAVING
BEEN MADE UPON THIS RULING, WE TREAT, WITHOUT FURTHER CONSIDERATION,
THE CONNECTICUT RAILWAY AS A LESSOR AND THE NEW HAVEN AS LESSEE. 

THE LEASE GAVE THE LESSOR THE OPTION TO TERMINATE, ON DEFAULT OF THE
LESSEE, AND TO REPOSSESS THE PROPERTY "WITHOUT PREJUDICE TO ITS RIGHT
OF ACTION FOR ARREARS OF RENT OR BREACH OF COVENANT."  IT CONTAINED NO
PROVISION FOR LIQUIDATION OF DAMAGES FOR BREACH OF THE ENTIRE LEASE. 

THE NEW HAVEN AGREED TO PAY ALL TAXES ON THE PROPERTY AND ON THE
LESSOR'S INCOME FROM THE PROPERTY.  IT ALSO PAID $1,049,563.50 ANNUALLY
FOR THE STREET RAILWAYS.  OF THIS AMOUNT, $504,975 WAS INTENDED TO
PROVIDE FOR THE PAYMENT OF INTEREST ON THE CONNECTICUT RAILWAY'S BONDS
AND FOR PAYMENTS INTO A SINKING FUND.  THESE INTEREST AND SINKING FUND
PAYMENTS CREATED A CLAIM UPON THE LESSOR FOR THE CONTENTS OF THE FUND
AT THE DATE OF PAYMENT OF THE BONDS.  THE ARRANGEMENT LOOKED TO THE
CANCELLATION OF THE BONDS IN 1951 BY THE NEW HAVEN'S PAYMENTS, AND THE
ISSUANCE BY THE CONNECTICUT RAILWAY OF NEW BONDS IN THEIR PLACE.  THE
DELIVERY TO IT OF THESE BONDS, THE NEW HAVEN AGREED, WOULD LIQUIDATE
ITS CLAIM FOR THE CONTENTS OF THE SINKING FUND.  IN EFFECT THE ANNUAL
RESERVED RENT WOULD THEN BE CONSIDERABLY DECREASED, FOR THE INTEREST
AND SINKING FUND PAYMENTS WOULD BE FOR ITS BENEFIT AS OWNER OF THE NEW
BONDS. 

ON OCTOBER 23, 1935, THE NEW HAVEN FILED ITS PETITION UNDER SEC. 77
OF THE BANKRUPTCY ACT.  THE PETITION WAS APPROVED AND THE RESPONDENTS
WERE APPOINTED TRUSTEES.  ON DECEMBER 18, 1935, THEY REJECTED THE 1906
LEASE WITH THE APPROVAL OF THE COURT.  ON NOVEMBER 16, 1936, THE
CONNECTICUT RAILWAY REPOSSESSED THE STREET RAILWAY PROPERTIES. 

THE CONNECTICUT RAILWAY FILED CLAIMS AGAINST THE NEW HAVEN'S ESTATE
FOR NUMEROUS ITEMS, AMONG THEM DAMAGES FOR BREACH OF THE LEASE AND FOR
DEFICIENCIES IN PROPERTY RETURNED.  IT CLAIMS $23,190,314.73 AS DAMAGES
FOR REJECTION OF THE LEASE.  THIS SUM IS ALLEGED TO BE "THE DIFFERENCE
BETWEEN THE PRESENT WORTH OF RENT AND OF RENTAL VALUE FOR THE BALANCE
OF THE TERM OF THE LEASE, LIQUIDATED BY DISCOUNTING AT 4%." 

THE DISTRICT COURT HELD THAT UNDER SEC. 77 THE LESSOR IS A CREDITOR
FOR ACTUAL DAMAGES ACCRUING FROM THE REJECTION OF THE UNEXPIRED LEASE
TO THE LATEST PRACTICABLE DATE IN THE REORGANIZATION FOR PRESENTATION
OF LESSORS' CLAIMS.  DAMAGES WERE MEASURED BY THE DIFFERENCE BETWEEN
THE RENT RESERVED IN THE LEASE AND THE NET EARNINGS OF THE PROPERTY. 
THE COURT ALLOWED THE AMOUNT PROVED UP TO JUNE 20, 1937, WITH LEAVE TO
THE CONNECTICUT RAILWAY TO APPLY FOR FURTHER HEARINGS TO LIQUIDATE
DAMAGES SUFFERED AFTER THAT DATE. 

THE CIRCUIT COURT OF APPEALS AFFIRMED, APPROVING THE TRIAL COURT'S
EXCLUSION OF ANY FUTURE DAMAGE WHICH HAD NOT ACCRUED UP TO THE LATEST
POSSIBLE HEARING IN THE PROCEEDINGS. 

FIRST.  THE CLAIM FOR DEFICIENCIES IN THE PROPERTY RETURNED TO
PETITIONER IS NOT PROPERLY BEFORE THIS COURT.  THE PETITION FOR
CERTIORARI DID NOT INCLUDE THE CLAIM AMONG THE QUESTIONS PRESENTED OR
REASONS FOR THE ISSUANCE OF THE WRIT.  IT WAS LISTED AS ONE OF THREE
RULINGS BELOW.  THE FIRST RELATED TO RENT ACCRUED TO PETITION FILED,
THE SECOND TO DEFICIENCIES IN PROPERTY RETURNED, AND THE THIRD TO
DAMAGES FOR REJECTION OF THE LEASE.  NOWHERE IN THE PETITION WAS THERE
COMPLAINT AS TO THE FIRST TWO ITEMS.  CLEARLY THE PETITION SOUGHT
REVIEW SOLELY OF THE DECREE IN SO FAR AS IT LIMITED PETITIONER'S CLAIM
UNDER SEC. 77 FOR DAMAGES FROM REJECTION OF THE UNEXPIRED LEASE.  AS
CLEARLY, CERTIORARI WAS GRANTED TO REVIEW ONLY THE MATTER WHICH THIS
COURT WAS ADVISED AGGRIEVED PETITIONER.  JOHNSON V. MANHATTAN RY. CO.,
289 U.S. 479, 494; GENERAL TALKING PICTURES CO. V. WESTERN ELECTRIC
CO., 304 U.S. 175, 177-9.  PETITIONER RELIES UPON WASHINGTON, V. & M.C.
CO. V. NATIONAL LABOR RELATIONS BOARD, 301 U.S. 142, 146.  NEITHER THE
LANGUAGE OF THAT CASE NOR THE AUTHORITIES THERE CITED IN SUPPORT OF THE
REFUSAL TO REVIEW A CLAIM NOT MENTIONED GIVE VITALITY TO THE SUGGESTION
OF THE PETITIONER THAT A MERE REFERENCE IN A PETITION FOR CERTIORARI TO
A RULING, WITHOUT A REQUEST FOR REVIEW, WILL CAUSE ITS CONSIDERATION. 

SECOND.  UNDER THE BANKRUPTCY ACT, PRIOR TO THE AMENDMENT OF SEC.
63(A) BY THE ACT OF JUNE 7, 1934,  FN2  A CLAIM FOR FUTURE RENT WAS NOT
PROVABLE.  FN3  A COVENANT, HOWEVER, CREATING A LIABILITY FOR DAMAGES
ON THE FILING OF A PETITION IN BANKRUPTCY, MEASURED BY THE DIFFERENCE
BETWEEN THE PRESENT FAIR VALUE OF THE REMAINING RENT AND THE PRESENT
FAIR RENTAL VALUE OF THE PREMISES FOR THE BALANCE OF THE TERM, RESULTED
IN A PROVABLE CLAIM.  FN4  THIS CONDITION MADE FOR INEQUALITY AMONG
BOTH CREDITORS AND BANKRUPTS, SINCE RECOVERY BY CLAIMANTS DEPENDED UPON
THE ARTISTRY WITH WHICH THEIR LEASES WERE DRAFTED AND DISCHARGED
BANKRUPTS WERE OFTEN LEFT WITH SURVIVING CLAIMS FOR RENT, UNDULY
BURDENSOME UPON THEIR EFFORTS AT SELF-REHABILITATION.  FN5 EVERYONE
INTERESTED IN BANKRUPTCY PROBLEMS HAD LONG BEEN FAMILIAR WITH THE
FUTURE RENT SITUATION AND ITS RAMIFICATIONS INTO THE FIELDS OF
ANTICIPATORY BREACH OF EXECUTORY CONTRACTS AND THE PROVABILITY OF
CONTINGENT CLAIMS.  FN6 

DURING THE YEARS 1933 TO 1935 THE CONGRESS DEALT ON SEVERAL OCCASIONS
WITH LANDLORDS' CLAIMS FOR FUTURE RENT.  THE ACT OF MARCH 3, 1933, MADE
PROVISION FOR THE RELIEF OF INDIVIDUAL DEBTORS, AGRICULTURAL AND NON
AGRICULTURAL, AND FOR RAILROAD REORGANIZATION.  SECTION 74 DEFINED
CREDITORS THUS:  "THE TERM 'CREDITOR' SHALL INCLUDE FOR THE PURPOSES OF
AN EXTENSION PROPOSAL UNDER THIS SECTION ALL HOLDERS OF CLAIMS OF
WHATEVER CHARACTER AGAINST THE DEBTOR OR HIS PROPERTY INCLUDING A CLAIM
FOR FUTURE RENT, WHETHER OR NOT SUCH CLAIMS WOULD OTHERWISE CONSTITUTE
PROVABLE CLAIMS UNDER THIS ACT.  A CLAIM FOR FUTURE RENT SHALL
CONSTITUTE A PROVABLE DEBT AND SHALL BE LIQUIDATED UNDER SECTION 63(B)
OF THIS ACT."  FN7  SIMILARLY THE RAILROAD REORGANIZATION SECTION
TREATED OF FUTURE RENTS IN SUB-SECTIONS 77(B), (H) AND (J), HEREAFTER
MORE FULLY CONSIDERED.  BY THE DECISION OF MANHATTAN PROPERTIES V.
IRVING TRUST CO., ON JANUARY 10, 1934, THE DIFFICULTIES OF LESSORS WERE
SHARPLY EMPHASIZED.  THE ACT OF JUNE 7, 1934, SUPPLIED PROCEDURE FOR
CORPORATE REORGANIZATION WITH ARRANGEMENTS PERMITTING THE PROOF OF
CLAIMS FOR FUTURE RENT.  FN8  THESE PROVISIONS HAVE BEEN UPHELD.  FN9 

THE FIRST PROVISIONS FOR PROOF OF CLAIMS FOR FUTURE RENT IN RAILROAD
REORGANIZATIONS APPEARED IN THE ACT OF MARCH 3, 1933, SIMULTANEOUSLY
WITH THE BROADENING OF THE BANKRUPTCY ACT TO INCLUDE THE RAILROADS AS
DEBTORS.  THIS ACT INCLUDED SEC. 74 WHICH ENLARGED THE BANKRUPTCY
DEFINITION OF CREDITOR.  FOR CREDITORS OF THIS TYPE IN RAILROAD
REORGANIZATIONS, THE ENACTMENT WAS EQUALLY BROAD.  FN10  THE
LEGISLATIVE HISTORY DISCLOSES NOTHING AS TO THE MOTIVES WHICH PROMPTED
THE INCLUSION OF THE LANGUAGE.  IN THE ACT OF AUGUST 27, 1935, THESE
CLAUSES WERE AMENDED TO READ AS THEY NOW STAND BUT AGAIN NOTHING HAS
BEEN FOUND COMMENTING UPON THE REASONS FOR THEIR ADOPTION IN EITHER THE
ORIGINAL OR PRESENT FORM.  CHANGES OF INTEREST HERE FROM THE 1933
LANGUAGE WERE PROPOSED BY THE FEDERAL COORDINATOR OF TRANSPORTATION,
FN11  BUT THEY WERE NOT DEEMED OF SUFFICIENT IMPORTANCE BY HIM TO MERIT
PARTICULAR COMMENT.  THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES HELD HEARINGS AND REPORTED A BILL, BASED ON THE
COORDINATOR'S DRAFT, WITH THE LANGUAGE, HERE IMPORTANT, CHANGED TO THE
EXACT WORDING OF THE ACT OF AUGUST 27, 1935.  NOTHING WHICH ILLUMINES
THIS PROBLEM APPEARS IN THE HEARINGS  FN12  OR COMMITTEE REPORT.  FN13 

THE PORTIONS OF THE ACT WHICH WE MUST CONSIDER ARE AS FOLLOWS: 

"SEC. 77.  REORGANIZATION OF RAILROADS  ...  (B)  ...  THE TERM
'CREDITORS' SHALL INCLUDE  ... THE HOLDER OF A CLAIM UNDER A CONTRACT
EXECUTORY IN WHOLE OR IN PART INCLUDING AN UNEXPIRED LEASE. 

"  ...  IN CASE AN EXECUTORY CONTRACT OR UNEXPIRED LEASE OF PROPERTY
SHALL BE REJECTED  ...  ANY PERSON INJURED BY SUCH NONADOPTION OR
REJECTION SHALL FOR ALL PURPOSES OF THIS SECTION BE DEEMED TO BE A
CREDITOR OF THE DEBTOR TO THE EXTENT OF THE ACTUAL DAMAGE OR INJURY
DETERMINED IN ACCORDANCE WITH PRINCIPLES OBTAINING IN EQUITY
PROCEEDINGS.  ... 

"(F)  ...  THE PROPERTY DEALT WITH BY THE PLAN, WHEN TRANSFERRED AND
CONVEYED  ...  SHALL BE FREE AND CLEAR OF ALL CLAIMS OF THE DEBTOR, ITS
STOCKHOLDERS AND CREDITORS, AND THE DEBTOR SHALL BE DISCHARGED FROM ITS
DEBTS AND LIABILITIES,  ...  " 49 STAT. 911, 913, 920. 

IT IS FIRST TO BE NOTED THAT THE SUCCESSIVE ACTS OF THE CONGRESS, ON
EXTENSION OF INDIVIDUAL DEBTS AND CORPORATE AND RAILROAD
REORGANIZATION, ARE DIRECTED GENERALLY AT THE REHABILITATION OF
DEBTORS.  FN14  AS ONE OF THE MEANS USED CONSISTENTLY TO ACCOMPLISH
THIS, CLAIMS FOR FUTURE RENT ARE MADE PROVABLE AND DISCHARGEABLE, SO
THAT THE DEBTOR WOULD NOT BE BURDENED WITH THE RENT OBLIGATION AFTER
DISCHARGE.  FN15  NEXT, THE LIMITATION OF THE AMOUNT OF FUTURE RENT
RECOVERABLE TO ONE YEAR IN SEC. 4 AND TO THREE YEARS IN SEC. 1(77B (B))
OF THE ACT OF JUNE 7, 1934, LEAVES NO DOUBT THAT THE CONGRESS DEEMED A
DEFINITE FORMULA ADVANTAGEOUS IN BANKRUPTCY AND GENERAL CORPORATE
REORGANIZATION.  ITS FAILURE TO PROVIDE AN EXACT MEASURE IN RAILROAD
REORGANIZATIONS SHOWS IT WAS NOT THERE CONSIDERED APPROPRIATE. 
FINALLY, IT SEEMS OBVIOUS THAT THE CHANGES OF THE COMMITTEE ON THE
JUDICIARY IN THE WORDING OF THE COORDINATOR'S DRAFT, BY WHICH "ACTUAL"
WAS INSERTED BEFORE "DAMAGE" AND "DETERMINED IN ACCORDANCE WITH
PRINCIPLES OBTAINING IN EQUITABLE PROCEEDINGS" ADDED AS A GUIDE, WERE
INTENDED TO CALL EMPHATICALLY TO THE ATTENTION OF THOSE ADMINISTERING
THE REORGANIZATION SECTION THE REQUIREMENT THAT ONLY THOSE DAMAGES
SUSCEPTIBLE OF DEFINITE PROOF SHOULD BE ALLOWED.  WE CANNOT READ A
LIMITATION ON DAMAGES INTO THE LANGUAGE AS ENACTED.  AS REORGANIZATIONS
HAD BEEN TRADITIONALLY CARRIED ON IN EQUITY AND WOULD BE CARRIED ON IN
A BANKRUPTCY COURT WITH EQUITY POWERS, IT WAS NATURAL TO ADD THE CLAUSE
AS TO EQUITABLE PROCEEDINGS.  LEASES WERE PLACED UPON THE SAME BASIS AS
EXECUTORY CONTRACTS. 

THE NEW HAVEN URGES THAT THE REFERENCE TO "EQUITABLE PROCEEDINGS" IS
TO RECEIVERSHIPS IN EQUITY, AS SUCH RECEIVERSHIPS WERE MENTIONED TWICE
IN THE SAME SUBSECTION.  THE USE OF "EQUITABLE PROCEEDINGS" INSTEAD OF
"EQUITY RECEIVERSHIPS" SUPPORTS THE VIEW THAT SOMETHING DIFFERENT WAS
INTENDED.  THE EQUITABLE PRINCIPLE FOR THE ALLOWANCE OF CLAIMS FOR
FUTURE RENT THE NEW HAVEN FINDS IN PENNSYLVANIA STEEL CO. V. NEW YORK
CITY RY. CO., 198 F. 721, EXPRESSED AS FOLLOWS, PAGES 741-742, "CLAIMS
WHICH WHEN PRESENTED WITHIN THE TIME LIMITED BY THE COURT FOR THEIR
PRESENTATION ARE CERTAIN OR ARE CAPABLE OF BEING MADE CERTAIN BY
RECOGNIZED METHODS OF COMPUTATION, SHOULD BE ALLOWED.  CLAIMS WHICH ARE
NOT THEN CERTAIN SHOULD BE DISALLOWED BECAUSE THEY AFFORD NO BASIS FOR
MAKING DIVIDENDS."  THE CONCLUSION OF THE DISTRICT COURT, AS AFFIRMED
BY THE CIRCUIT COURT OF APPEALS, IS THEN OFFERED AS THE CORRECT RULE IN
THIS CASE.  THAT CONCLUSION WAS SUMMARIZED BY THE BRIEF OF THE NEW
HAVEN IN THESE WORDS: 

"THE COURT THEREUPON HELD THAT DAMAGES MEASURED BY THE DIFFERENCE
BETWEEN THE RENT RESERVED AND THE EARNINGS OF THE PROPERTY UP TO THE
DATE OF HEARING SHOULD BE ALLOWED, WITH THE FURTHER RIGHT TO THE
CLAIMANT, IN COMMON WITH ALL OTHER CLAIMANTS UNDER REJECTED LEASES, TO
APPLY FOR A SUBSEQUENT HEARING AT THE LATEST PRACTICABLE DATE TO BE
DETERMINED BY THE COURT DURING THE REORGANIZATION PROCEEDINGS FOR THE
PURPOSE OF PROVING SIMILAR DAMAGES UP TO THAT DATE."    DAMAGES FOR
LOSS OF RENT WHICH FELL DUE AFTER THE LATEST PRACTICABLE DATE FOR
FILING CLAIMS WERE THUS BARRED FROM PROOF, AND UNDER THE QUOTED
LANGUAGE OF SUBDIVISION (F), THE RIGHT TO RECOVER FOR SUCH INJURY FROM
THE DEBTOR AFTER REORGANIZATION WAS DESTROYED. 

WE ARE OF THE OPINION THAT THIS CONSTRUCTION OF THE STATUTORY
PROVISIONS FOR THE MEASUREMENT OF DAMAGES FOR LOSS OF FUTURE RENT IS
ERRONEOUS.  NOTWITHSTANDING ITS EXTENDED TERM, THE LEASE CREATED AN
OBLIGATION UNDER THE PRESENT BANKRUPTCY ACT UPON THE NEW HAVEN ENTITLED
TO SHARE IN ITS ASSETS UPON REORGANIZATION ON AN EQUALITY WITH THE
CLAIMS OF OTHER CREDITORS.    WHILE IT COULD BE SAID THAT THE GENERAL
RULE IN EQUITY RECEIVERSHIPS WAS THAT ONLY ACCRUED DAMAGES COULD BE
PROVEN, THERE WAS NO DISCERNIBLE EQUITABLE RULE FOR THE DETERMINATION
OF DAMAGES FOR REJECTION OR NONADOPTION OF AN UNEXPIRED LEASE.  THE
ACTUAL DAMAGES FROM THE BREACH WERE NOT DETERMINED.  AT THE MOST AN
ARBITRARY TIME LIMIT WAS SET ON PROOF.  THE REFERENCE TO EQUITY
PROCEEDINGS DOES NOT, IN OUR OPINION, REFER TO ANY RULE FOR THE MEASURE
OF DAMAGES IN EQUITY RECEIVERSHIPS.  IN THEIR ADMINISTRATION OF
ESTATES, WHETHER RAILROAD OR NON-RAILROAD, CLAIMS FOR FUTURE RENTS
DEPENDED FOR THEIR PROVABILITY UPON THE FACT OF REENTRY,  FN16  THE
EXISTENCE OF A CLAUSE FOR INDEMNITY IN CASE OF BREACH,  FN17  OR THE
INCIDENCE OF THE MATURITY OF THE RENT CLAIM UNDER THE LOCAL LAW.  FN18 

THE DAMAGES RECOVERED BY AN INJURED PARTY HAVE ALWAYS BEEN LIMITED TO
HIS "ACTUAL" DAMAGES.  THERE IS NOTHING TO INDICATE THAT THE CONGRESS
INTENDED TO HAVE "ACTUAL" INTERPRETED AS "ACCRUED."  THE MEASURE OF
DAMAGES APPLIED BY THE COURTS FOR THE BREACH OF A LEASE, WHERE DAMAGES
ARE PERMITTED, IS UNIFORM.  IN WILLIAM FILENE'S SONS CO. V. WEED  FN19
AND IN KUEHNER V. IRVING TRUST CO.,  FN20  THIS COURT SAID IN ANALOGOUS
SITUATIONS THAT THE MEASURE WAS THE PRESENT VALUE OF THE RENT RESERVED
LESS THE PRESENT RENTAL VALUE OF THE REMAINDER OF THE TERM.  FN21  THE
ENGLISH BANKRUPTCY ACT PERMITS PROOF OF FUTURE RENTS, AS ANY CLAIM IS
PROVABLE WHICH IS "AS TO MODE OF VALUATION, CAPABLE OF BEING
ASCERTAINED BY FIXED RULES OR AS MATTER OF OPINION."  FN22  THE MEASURE
OF DAMAGES IS THE SAME.  FN23  THE DIFFICULTIES OF PROOF ARE WELL
RECOGNIZED.  FN24  THE SAME RULES APPLY TO EXECUTORY CONTRACTS.  IN
KUEHNER V. IRVING TRUST CO. FN25  THIS COURT POINTED OUT AS ONE OF THE
REASONS FOR UPHOLDING THE VALIDITY OF A STATUTORY FORMULA THE
UNCERTAINTY AS TO THE LOSS ENTAILED BY ABROGATION OF LEASES, AN
UNCERTAINTY GROWING GREATER AS THE REMAINDER OF THE TERM LENGTHENS. 
"TESTIMONY AS TO PRESENT RENTAL VALUE," IT WAS SAID, "PARTAKES LARGELY
OF THE CHARACTER OF PROPHECY  ...  "  A REMAINDER OF FOURTEEN YEARS WAS
THERE INVOLVED.  HERE THERE IS A REMAINDER OF 969 YEARS.  THAT LEASE
WAS FOR A STORE IN THE CITY OF NEW YORK.  EVIDENCE OF THE VALUE OF
UNEXPIRED TERMS OF STREET RAILWAY LEASES WOULD BE EVEN MORE DIFFICULT
TO PRODUCE, AS POSSIBLE LESSEES ARE LIMITED IN NUMBER.  SINCE
INSOLVENCIES ARE MORE FREQUENT IN ECONOMIC DEPRESSIONS AND SINCE, AS A
CONSEQUENCE, ESTIMATES OF THE RENTAL VALUE OF THE REMAINDER OF THE TERM
ARE GIVEN UNDER SUBNORMAL BUSINESS CONDITIONS, THE DIFFICULTIES ARE
MULTIPLIED. 

JUDGES IN EQUITABLE PROCEEDINGS WILL HAVE THE ADVANTAGE OF EVIDENCE
IN APPLYING THE USUAL RULES AS TO THE MEASURE OF DAMAGES.  IT IS WELL
UNDERSTOOD THAT SUCH EVIDENCE MUST SHOW DAMAGES TO REASONABLE
CERTAINTY.  MERE "PLAUSIBLE ANTICIPATION" DOES NOT MERIT CONSIDERATION
NOR ARE FLIGHTS INTO THE REALM OF PURE SPECULATION ENTITLED TO BE
TREATED AS EVIDENCE.  FN26  THE DETERMINATION OF THE AMOUNT TO BE
ALLOWED AS THE DAMAGE WILL BE BASED ON EVIDENCE WHICH SATISFIES THE
MIND. 

THIRD.  WE COMMENT BRIEFLY ON TWO OTHER POINTS RAISED.  THE
BETTERMENTS AND SINKING FUNDS HAVING COME INTO THE POSSESSION OF THE
LESSORS BY THE TERMS OF THE LEASE ARE NOT TO BE CONSIDERED AS OFFSETS
AGAINST THE CLAIM OF THE LESSOR.  THEIR POSSESSION BY THE LESSOR
INCREASES THE EARNING POWER OF THE ASSETS TO THE BENEFIT OF THE
LESSEE. 

SINCE SUBSECTION (L) OF SEC. 77  FN27  IS GENERAL IN FORM AND IS
SPECIFICALLY SUBORDINATED TO THE OTHER PROVISIONS OF THE SECTION,
INCLUDING SUBSECTION (B), SEC. 63(A)(9) OF THE BANKRUPTCY ACT IS
INAPPLICABLE TO THE PRESENT CONTROVERSY. 

AS CERTIORARI WAS SOUGHT AND ALLOWED ONLY UPON SO MUCH OF THE ORDER
OF THE CIRCUIT COURT OF APPEALS AS AFFECTED THE MEASURE OF THE LESSOR'S
DAMAGE FOR REJECTION OF THE LEASE IN QUESTION, THE ORDER OF THAT COURT
IS REVERSED ONLY IN THAT PARTICULAR AND THIS CASE IS REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THE ORDER AND
OPINION OF THE CIRCUIT COURT OF APPEALS AS HEREIN MODIFIED AND OF THIS
COURT.  REVERSED. 

FN1  49 STAT. 911, 914; 11 U.S.C. SEC. 205(B). 

FN2  48 STAT. 923-924.  "SEC.  4.  (A) SECTION 63(A) OF THE ACT OF
JULY 1, 1898, ENTITLED 'AN ACT TO ESTABLISH A UNIFORM SYSTEM OF
BANKRUPTCY THROUGHOUT THE UNITED STATES', APPROVED JULY 1, 1898, AS
AMENDED, IS AMENDED TO READ AS FOLLOWS:  '(A) DEBTS OF THE BANKRUPT MAY
BE PROVED AND ALLOWED AGAINST HIS ESTATE WHICH ARE  ...  (7) CLAIMS FOR
DAMAGES RESPECTING EXECUTORY CONTRACTS INCLUDING FUTURE RENTS WHETHER
THE BANKRUPT BE AN INDIVIDUAL OR A CORPORATION, BUT THE CLAIM OF A
LANDLORD FOR INJURY RESULTING FROM THE REJECTION BY THE TRUSTEE OF AN
UNEXPIRED LEASE OF REAL ESTATE OR FOR DAMAGES OR INDEMNITY UNDER A
COVENANT CONTAINED IN SUCH LEASE SHALL IN NO EVENT BE ALLOWED IN AN
AMOUNT EXCEEDING THE RENT RESERVED BY THE LEASE, WITHOUT ACCELERATION,
FOR THE YEAR NEXT SUCCEEDING THE DATE OF THE SURRENDER OF THE PREMISES
PLUS AN AMOUNT EQUAL TO THE UNPAID RENT ACCRUED UP TO SAID DATE:
PROVIDED, THAT THE COURT SHALL SCRUTINIZE THE CIRCUMSTANCES OF AN
ASSIGNMENT OF FUTURE RENT CLAIMS AND THE AMOUNT OF THE CONSIDERATION
PAID FOR SUCH ASSIGNMENT IN DETERMINING THE AMOUNT OF DAMAGES ALLOWED
ASSIGNEE HEREUNDER:  PROVIDED FURTHER, THAT THE PROVISIONS OF THIS
CLAUSE (7) SHALL APPLY TO ESTATES PENDING AT THE TIME OF THE ENACTMENT
OF THIS AMENDATORY ACT.'" 

THE AMENDMENTS OF JUNE 18, 1934, C. 580, 48 STAT. 991, JUNE 5, 1936,
C. 512, SEC. 1, 49 STAT. 1475, AND JUNE 22, 1938, C. 575, 52 STAT. 840,
ARE IMMATERIAL UPON THIS POINT. 

FN3  MANHATTAN PROPERTIES V. IRVING TRUST CO., 291 U.S. 320, 330. 

FN4  IRVING TRUST CO. V. PERRY CO., 293 U.S. 307, 310. 

FN5  CITY BANK CO. V. IRVING TRUST CO., 299 U.S. 433, 437. 

FN6  CF. MANHATTAN PROPERTIES V. IRVING TRUST CO., SUPRA; MAYNARD V.
ELLIOTT, 283 U.S. 273, 278; CENTRAL TRUST CO. V. CHICAGO AUDITORIUM
ASSN., 240 U.S. 581, 589-90. 

FN7  47 STAT. 1467-68. 

FN8  "IN CASE AN EXECUTORY CONTRACT OR UNEXPIRED LEASE OF REAL ESTATE
SHALL BE REJECTED  ... ANY PERSON INJURED BY SUCH REJECTION SHALL, FOR
ALL PURPOSES OF THIS SECTION AND OF THE REORGANIZATION PLAN, ITS
ACCEPTANCE AND CONFIRMATION, BE DEEMED TO BE A CREDITOR.  THE CLAIM OF
A LANDLORD FOR INJURY RESULTING FROM THE REJECTION OF AN UNEXPIRED
LEASE OF REAL ESTATE OR FOR DAMAGES OR INDEMNITY UNDER A COVENANT
CONTAINED IN SUCH LEASE SHALL BE TREATED AS A CLAIM RANKING ON A PARITY
WITH DEBTS WHICH WOULD BE PROVABLE UNDER SECTION 63(A) OF THIS ACT, BUT
SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE RENT, WITHOUT
ACCELERATION, RESERVED BY SAID LEASE FOR THE THREE YEARS NEXT
SUCCEEDING THE DATE OF SURRENDER OF THE PREMISES TO THE LANDLORD OR THE
DATE OF REENTRY OF THE LANDLORD, WHICHEVER FIRST OCCURS, WHETHER BEFORE
OR AFTER THE FILING OF THE PETITION, PLUS UNPAID RENT ACCRUED UP TO
SUCH DATE OF SURRENDER OR REENTRY:  PROVIDED, THAT THE COURT SHALL
SCRUTINIZE THE CIRCUMSTANCES OF AN ASSIGNMENT OF FUTURE RENT CLAIMS AND
THE AMOUNT OF THE CONSIDERATION PAID FOR SUCH ASSIGNMENT IN DETERMINING
THE AMOUNT OF DAMAGES ALLOWED ASSIGNEE HEREUNDER."  48 STAT. 915. 

"(H)  UPON FINAL CONFIRMATION OF THE PLAN,  ...  THE PROPERTY DEALT
WITH BY THE PLAN, WHEN TRANSFERRED AND CONVEYED BY THE TRUSTEE OR
TRUSTEES TO THE DEBTOR OR THE OTHER CORPORATION OR CORPORATIONS  ...
SHALL BE FREE AND CLEAR OF ALL CLAIMS OF THE DEBTOR, ITS STOCKHOLDERS
AND CREDITORS  ...  " 48 STAT. 920. 

FN9  CITY BANK CO. V. IRVING TRUST CO., 299 U.S. 433; KUEHNER V.
IRVING TRUST CO., 299 U.S. 445. 

FN10  47 STAT. 1475, 1480, SEC. 77, "(B)  ...  THE TERM 'CREDITORS'
SHALL,  ...  INCLUDE  ... ALL HOLDERS OF CLAIMS, INTERESTS, OR
SECURITIES OF WHATEVER CHARACTER AGAINST THE DEBTOR OR ITS PROPERTY,
INCLUDING CLAIM FOR FUTURE RENT, WHETHER OR NOT SUCH CLAIMS, INTERESTS,
OR SECURITIES WOULD OTHERWISE CONSTITUTE PROVABLE CLAIMS UNDER THIS
ACT." 

"(H)  ...  THE CONFIRMATION OF THE PLAN SHALL DISCHARGE THE DEBTOR
FROM ITS DEBTS EXCEPT AS PROVIDED IN THE PLAN.  ...  " 

"(J)  UPON THE CONFIRMATION OF THE PLAN THE PROPERTY DEALT WITH BY
THE PLAN,  ...  SHALL, AS THE COURT MAY DIRECT, BE FREE AND CLEAR OF
ALL CLAIMS OF THE DEBTOR, ITS STOCKHOLDERS AND CREDITORS, ...  " 

FN11  HOUSE DOCUMENT NO. 89, 74TH CONGRESS, 1ST SESSION, APPENDIX X,
PAGE 229. 

THOSE AFFECTING THE LANGUAGE OF THE ACT OF MARCH 3, 1933, QUOTED IN
NOTE 10, SUPRA, WERE AS FOLLOWS: 

"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 ACT, INCLUDING THE HOLDER OF A CLAIM UNDER A
CONTRACT EXECUTORY IN WHOLE OR IN PART INCLUDING AN UNEXPIRED LEASE." 
ID. P. 231. 

"IN CASE AN EXECUTORY CONTRACT OR UNEXPIRED LEASE OF PROPERTY SHALL
BE REJECTED  ...  , ANY PERSON INJURED BY SUCH NONADOPTION OR
REJECTION, SHALL, FOR ALL PURPOSES OF THIS SECTION BE DEEMED TO BE A
CREDITOR TO THE EXTENT OF SUCH DAMAGE OR INJURY, PROVIDED, THAT THE
JUDGE SHALL CONSIDER THE CIRCUMSTANCES OF AN ASSIGNMENT OF FUTURE RENT
CLAIMS AND THE AMOUNT OF CONSIDERATION PAID FOR SUCH ASSIGNMENT IN
DETERMINING THE AMOUNT OF DAMAGES ALLOWED AN ASSIGNEE HEREUNDER AND MAY
LIMIT SUCH DAMAGES TO THE ACTUAL CONSIDERATION PAID FOR SUCH CLAIMS." 
ID. PP. 231-2. 

"  ...  THE PROPERTY DEALT WITH BY THE PLAN, WHEN TRANSFERRED AND
CONVEYED  ...  SHALL BE FREE AND CLEAR OF ALL CLAIMS OF THE DEBTOR, ITS
STOCKHOLDERS AND CREDITORS,  ...  THE FINAL DECREE SHALL DISCHARGE THE
DEBTOR FROM ITS DEBTS AND LIABILITIES AND SHALL TERMINATE ALL RIGHTS
AND INTERESTS OF ITS STOCKHOLDERS AND CREDITORS EXCEPT AS PROVIDED IN
THE PLAN OR AS MAY BE RESERVED AS AFORESAID."  ID. P. 239. 

COMMENT OF COORDINATOR, ID. P. 100 ET SEQ. 

FN12  HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY ON H.R. 6249,
74TH CONGRESS, 1ST SESSION. 

FN13  H.R. REPORT NO. 1283, 74TH CONGRESS, 1ST SESSION. 

FN14  CF. ADAIR V. BANK OF AMERICA NATIONAL T. & S. ASSN., 303 U.S.
350. 

FN15  CF. MANHATTAN PROPERTIES V. IRVING TRUST CO., 291 U.S. 320, 331
2. 

FN16  GARDINER V. BUTLER & CO., 245 U.S. 603, 605. 

FN17  WM. FILENE'S SONS CO. V. WEED, 245 U.S. 597, 602. 

FN18 GARDINER V. BUTLER & CO. 245 U.S. 603, 605; WAKE DEVELOPMENT CO.
V. AUBURN-FULLER CO., 71 F.2D 702; MOORE V. MCDUFFIE, 71 F.2D 729; IN
RE MCALLISTER-MOHLER CO., 46 F.2D 91; SEE GERDES, CORPORATE
REORGANIZATIONS, SECS. 687-88. 

FN19  245 U.S. 597, 602. 

FN20  299 U.S. 445, 450. 

FN21  CF. GRAYSON V. MIXON, 176 ARK. 1123; 5 S.W.2D 312; CURRAN V.
SMITH-ZOLLINGER CO., 18 DEL. CH. 220; 157 A. 432; WILSON V. NATIONAL
REFINING CO., 126 KAN. 139; 266 P. 941; WOMBLE V. LEIGH, 195 N.C. 282;
142 S.E. 17; IN RE READING IRON WORKS, 150 PA. 369; 24 A. 617;
SUTHERLAND, DAMAGES, VOL. III, FOURTH ED., SEC. 844. 

FN22  ACT OF 1914, 4 AND 5 GEO. V, C. 59, SEC. 30(8)(C). 

FN23  IN RE TICKLE, 3 MORR.  126; EX PARTE LLYNVI COAL & IRON CO.,
L.R. 7 CH. APP. 28; IN RE HINKS, EX PARTE VERDI, 3 MORR.  218; IN RE
CARRUTHERS, 2 MANS.  172; CF. HARDY V. FOTHERGILL, L.R. 13 A.C. 351,
358, WHERE A CLAIM ON COVENANT TO DELIVER WELL REPAIRED AT END OF FIFTY
YEAR TERM WAS HELD PROVABLE. 

FN24  PENNSYLVANIA STEEL CO. V. NEW YORK CITY RY. CO., 198 F. 721,
759. 

FN25  299 U.S. 445, 454. 

FN26  CF. SUTHERLAND, DAMAGES, VOL. I, FOURTH ED., SEC. 121. 

FN27  49 STAT. 922, "(L)  IN PROCEEDINGS UNDER THIS SECTION AND
CONSISTENT WITH THE PROVISIONS THEREOF, THE JURISDICTION AND POWERS OF
THE COURT, THE DUTIES OF THE DEBTOR AND THE RIGHTS AND LIABILITIES OF
CREDITORS, AND OF ALL PERSONS WITH RESPECT TO THE DEBTOR AND ITS
PROPERTY, SHALL BE THE SAME AS IF A VOLUNTARY PETITION FOR ADJUDICATION
HAD BEEN FILED AND A DECREE OF ADJUDICATION HAD BEEN ENTERED ON THE DAY
WHEN THE DEBTOR'S PETITION WAS FILED." 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE JUDGMENT OF THE COURT
BELOW SHOULD BE AFFIRMED. 

MR. JUSTICE BRANDEIS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






B. & O.R. CO. V. U.S., 305 U.S. 507 


NO. 133.  ARGUED DECEMBER 7, 8, 1938.  - DECIDED JANUARY 3, 1939.  - 20
F.SUPP.  273 - ID. 917, AFFIRMED. 


INTERSTATE CARRIERS, AT THE PORT OF NEW YORK, IN A COMPETITIVE EFFORT
TO INDUCE SHIPPERS TO PATRONIZE THEIR RESPECTIVE LINES AND SO INCREASE
THEIR LINE-HAUL TRAFFIC, FURNISHED WAREHOUSE SPACE AND SERVICES, AT
LESS THAN COST TO THE CARRIERS AND AT LESS THAN THE RATES CHARGED BY
PRIVATE WAREHOUSEMEN.  HELD: 

1.  THAT THE INTERSTATE COMMERCE COMMISSION PROPERLY ORDERED THE
CARRIERS TO CEASE FURNISHING SUCH FACILITIES BELOW COST, UPON THE
GROUNDS THAT SUCH WAREHOUSING IS "COMMERCIAL" AND NOT PART OF THE
TRANSPORTATION, AND THE EFFECT OF FURNISHING IT BELOW COST, IN ORDER TO
ATTRACT LINE-HAUL PATRONAGE, IS TO ALLOW WHAT AMOUNTS TO A REBATE TO
THOSE SHIPPERS WHO ENJOY THE BELOW-COST WAREHOUSING AND TO WORK UNJUST
DISCRIMINATION AND UNREASONABLE PREJUDICE AGAINST OTHER SHIPPERS PAYING
THE PUBLISHED TRANSPORTATION RATES, IN VIOLATION OF SECS. 2, 3, AND 6
OF THE INTERSTATE COMMERCE ACT.  P. 520. 

2.  TO THIS CONCLUSION, THE QUESTION WHETHER THE SHIPPER PAYS LESS
THAN FAIR OR MARKET VALUE IS IMMATERIAL.  P. 523. 

3.  INCLUSION OF SUCH BELOW-COST WAREHOUSING SERVICE IN THE CARRIER'S
TARIFF, IN CONNECTION WITH STORAGE-IN-TRANSIT PRIVILEGES, THOUGH
REQUIRED BY THE COMMISSION, DOES NOT MAKE IT A TRANSPORTATION COST OR
SAVE IT FROM THE CONDEMNATION OF SEC. 6(7) OF THE ACT.  P. 525. 

BALTIMORE & OHIO RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE DISMISSING A BILL TO ENJOIN ENFORCEMENT OF AN
ORDER OF THE INTERSTATE COMMERCE COMMISSION.  THE INTERSTATE COMMERCE
COMMISSION, THE WAREHOUSEMEN'S PROTECTIVE COMMITTEE, THE AMERICAN
WAREHOUSEMEN'S ASSOCIATION, THE BOSTON PORT AUTHORITY, AND THE CITY OF
BOSTON INTERVENED AND PRAYED FOR DISMISSAL OF THE BILL. 

THE ORDER CONDEMNS RAILROAD LEASES TO SHIPPERS UPON THE BASIC FINDING
THAT THE RENTALS RESERVED ARE LESS THAN THE COST OF PROVIDING THE
PROPERTY LEASED.  UPON THIS FINDING ALONE THE COMMISSION AND THE
DISTRICT COURT HOLD THAT SUCH RENTALS ARE "CONCESSIONS" TO SHIPPERS
FROM THE PUBLISHED TARIFF RATES FOR ROAD-HAUL TRANSPORTATION, IN
VIOLATION OF SECS. 2, 3, AND 6 OF THE ACT AND "PROBABLY" IN VIOLATION
OF THE ELKINS ACT.  IT IS NEITHER THE DUTY NOR WITHIN THE PROVINCE OF
THE COURT TO SEARCH THE RECORD TO DETERMINE WHETHER ADDITIONAL
ESSENTIAL FINDINGS MIGHT HAVE BEEN MADE. 

TO MAKE OUT AN UNLAWFUL CONCESSION, RECEIPT BY THE SHIPPER OF MORE
VALUE THAN HE PAYS BACK MUST BE SHOWN BY AN EXPRESS FINDING THAT THE
REASONABLE RENTAL VALUE OF THE LEASE GIVEN TO THE SHIPPER EXCEEDED THE
RENTAL HE ACTUALLY PAID. 

CITING LEHIGH VALLEY R. CO. V. UNITED STATES, 243 U.S. 444, 446;
WIGHT V. UNITED STATES, 167 U.S. 512; MITCHELL COAL CO. V. PENNSYLVANIA
R. CO., 230 U.S. 247, 260-265; UNITED STATES V. AMERICAN TIN PLATE CO.,
301 U.S. 402; NEW YORK, N.H. & H.R. CO. V. INTERSTATE COMMERCE COMM'N,
200 U.S. 361; NATIONAL FIRE INS. CO. V. THOMPSON, 281 U.S. 331;
STANDARD OIL CO. V. SOUTHERN PACIFIC CO., 268 U.S. 146, 155; ST. LOUIS
& O'FALLON R. CO. V. UNITED STATES, 279 U.S. 461, 494; ATCHISON, T. &
S.F. RY. CO. V. UNITED STATES, 284 U.S. 248, 260; GREAT NORTHERN RY.
CO. V. WEEKS, 297 U.S. 135, 149; DONOVAN V. PENNSYLVANIA R. CO., 199
U.S. 279; LOUISVILLE & N. RY. CO. V. WEST COAST NAVAL STORES CO., 198
U.S. 483; MISSOURI-PACIFIC RY. V. NEBRASKA, 164 U.S. 403; DAVIS V.
SOUTHERN PACIFIC CO., 235 F. 731, 737; ARON V. PENNSYLVANIA R. CO., 80
F.2D 100, CERT. DENIED, 298 U.S. 658; CLEVELAND, C.C. & ST. L. RY. CO.
V. HIRSCH, 204 F. 849; CENTRAL OF GEORGIA RY. CO. V. BLOUNT, 238 F.
292; VANDALIA RY. CO. V. UNITED STATES, 226 F. 713; UNITED STATES V.
NORTHERN PACIFIC RY. CO., 18 F.2D 299, 304; ANDREWS BROS. CO. V.
PENNSYLVANIA R. CO., 123 I.C.C. 733; WILLIAMS-THOMPSON CO. V. A. &
W.P.R. CO., 126 I.C.C. 417; JOHNSON LUMBER CO. V. UNION PACIFIC R. CO.,
219 I.C.C. 125. 

GREAT HARDSHIP WILL RESULT TO THE SHIPPERS AND CARRIERS THROUGHOUT
THE COUNTRY FROM THIS RIGID COST OR INVESTMENT STANDARD AS THE TEST OF
LAWFUL RENTALS. 

THERE IS NOTHING STRANGE OR UNUSUAL IN THE CIRCUMSTANCE THAT PRESENT
FAIR VALUE OF LEASES MAY NOT EQUAL "COST," IF CALCULATED TO INCLUDE, AS
THE COMMISSION'S REPORTS SEEM TO CONTEMPLATE, INTEREST AND DEPRECIATION
ON INVESTMENT AT SOME UNSTATED RATES, AND TAXES.  THE COMMISSION'S
REPORTS IN THIS CASE SHOW THAT MOST OF THE BUILDINGS IN WHICH THE
CARRIERS HAVE LEASED SPACE TO SHIPPERS WERE CONSTRUCTED IN THE YEARS
AFTER THE WAR AND PRIOR TO THE DEPRESSION WHEN, AS THE COURT WILL
JUDICIALLY NOTICE, PRICE LEVELS AND ALL PROPERTY VALUES WERE MATERIALLY
HIGHER THAN HAVE PREVAILED LATER AND WHEN THE LEASES HERE IN ISSUE WERE
MADE. 

PROCEEDING FURTHER UPON THE UNSOUND COST THEORY, THE COURT BELOW WENT
SO FAR AS TO HOLD THAT A LOSS DUE TO LEASING PROPERTY AT A RENTAL BELOW
COST NECESSARILY REDUCES, BY THE AMOUNT OF THE LOSS, THE CARRIER'S
"TRUE NET TRANSPORTATION RETURN" FROM THE TARIFF RATES FOR
TRANSPORTATION CHARGED THE SHIPPER, AND THAT SUCH LOSS IS AUTOMATICALLY
AND CORRESPONDINGLY A GAIN BY THE SHIPPER.  SIMPLY STATED, THE ARGUMENT
IS THAT EVERY RAILROAD LOSS OR REDUCTION IN "NET TRANSPORTATION RETURN"
IS SOMEBODY'S CONCESSION OR REBATE.  TO STATE THE PROPOSITION, WE
SUBMIT, IS TO DISCLOSE ITS FALLACY. 

A CARRIER MAY DISSIPATE ITS REVENUE DERIVED FROM THE TARIFF RATES ON
A GIVEN SHIPMENT IN MANY WAYS.  BUT MERE DISSIPATION CAN NOT CONSTITUTE
A CONCESSION.  UNLESS THE LOSS SUSTAINED BY THE CARRIER ALSO HAS THE
EFFECT DIRECTLY OR INDIRECTLY OF GIVING THE SHIPPER SOMETHING OF VALUE
OVER AND ABOVE WHAT HE PAYS, THERE IS, AND IN THE VERY NATURE OF THINGS
CAN BE, NO REDUCTION IN THE TARIFF RATES PAID BY THE SHIPPER, AND
THEREFORE NO CONCESSION FROM THE STANDPOINT OF THE SHIPPER.  IT IS NOT
WHAT THE CARRIER RETAINS AS A NET TRANSPORTATION RETURN, BUT WHAT THE
SHIPPER PAYS, IN RELATION TO WHAT HE GETS FROM THE CARRIER, THAT
DETERMINES WHETHER OR NOT THE SHIPPER HAS PAID AND BORNE THE FULL
TARIFF RATE.  IT IS NOT WHAT THE CARRIER LOSES, BUT WHAT THE SHIPPER
GAINS, IF ANYTHING, FROM THE LEASE, THAT CONTROLS. 

THE ONLY FINDING THAT THE COMMISSION MADE AS TO APPELLANTS' STORING
OF FREIGHT IN THEIR WAREHOUSES AND PIERS IS LIKEWISE THAT THE CHARGES
THEREFOR ARE LESS THAN THE COST TO THE CARRIER OF STORING SUCH
FREIGHT.  AS TO SUCH STORAGE THAT FINDING IS, FOR THE SAME REASONS,
INSUFFICIENT TO ESTABLISH A CONCESSION. 

ALL OF APPELLANTS'"IN-TRANSIT SERVICES," CONSISTING OF IN-TRANSIT
STORAGE AND THE HANDLING AND INSURING OF GOODS IN CONNECTION THEREWITH,
ARE COVERED BY TARIFFS, AND, UNDER THE COMMISSION'S EXPRESS FINDING,
MUST CONTINUE SO TO BE.  APPELLANTS' FULL COMPLIANCE WITH SUCH TARIFFS,
WHICH IS ADMITTED, MAKES THE EXISTENCE OF CONCESSIONS IN CONNECTION
WITH SUCH "IN-TRANSIT SERVICES" IMPOSSIBLE. 

THE ORDER AS TO APPELLANTS' LEASES, STORAGE, AND "INTRANSIT SERVICES"
WILL DEPRIVE APPELLANTS OF THEIR LIBERTY AND PROPERTY IN CONTRAVENTION
OF THE FIFTH AMENDMENT. 

THE COMMISSION HAS FULL POWER, UNDER THE FAIR AND REASONABLE VALUE
STANDARD URGED BY APPELLANTS, TO CORRECT ANY PRACTICES THAT MAY RESULT
IN CONCESSIONS OR DISCRIMINATIONS. 


APPELLANTS HAVE A LEGAL RIGHT TO MAKE LEASES AT FAIR RENTAL VALUES
AND TO STORE GOODS AT THE REASONABLE WORTH OF THE STORAGE, AND NO

THE COMMISSION'S FINDINGS ESTABLISH THAT APPELLANTS IN THEIR OWN
COMPETITION FOR LINE-HAUL TRAFFIC CUT WAREHOUSING CHARGES AND SPACE
RENTALS BELOW THEIR OWN COSTS AND BELOW THOSE OF THE COMPETITIVE
COMMERCIAL WAREHOUSEMEN, WITHOUT REGARD TO "FAIR VALUE." 

APPELLANTS' CONTENTION THAT THE ONLY BASIC FINDING WAS THAT THE
WAREHOUSING CHARGES ARE BELOW COST, AND THAT THE COMMISSION DID NOT
FIND THAT THESE CHARGES WERE BELOW FAIR VALUE, IS ERRONEOUS. 

COMPETITION FOR LINE-HAUL TRAFFIC WAS THE ONLY REASON FOR THE LOW
WAREHOUSING CHARGES. 

THE ORDER, PRESCRIBING COSTS AS THE MINIMUM, TO CORRECT VIOLATIONS OF
SECS. 2, 3, AND 6 OF THE INTERSTATE COMMERCE ACT, IS FULLY SUPPORTED BY
THE NEW HAVEN CASE, 200 U.S. 361. 

APPELLANTS HAVE NO LEGAL RIGHT TO MAINTAIN COMMERCIAL WAREHOUSING
CHARGES THAT ARE BELOW COSTS FOR THE PURPOSE OF INDUCING THE MOVEMENT
OF COMPETITIVE TRAFFIC OVER THEIR RESPECTIVE LINES, WHERE THE EFFECT IS
TO TRANSPORT THE PROPERTY IN INTERSTATE COMMERCE AT LESS THAN THE
PUBLISHED TARIFF RATES.  WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501;
NEW HAVEN CASE, 200 U.S. 361; NEW YORK CENTRAL R. CO. V. UNITED STATES,
212 U.S. 481; UNITED STATES V. UNION STOCK YARD CO., 226 U.S. 286, 301
309. 

THE BELOW-COST WAREHOUSING RATES OF APPELLANTS DISSIPATE THEIR
REVENUES, CAUSE UNJUST DISCRIMINATION AGAINST PARTICULAR SHIPPERS AND
AGAINST THE GENERAL BODY OF SHIPPERS OVER THEIR LINES, IN VIOLATION OF
SECS. 2, 3, AND 6 AND OF THE PURPOSE OF THE ACT (SEC. 15A) TO MAINTAIN
ADEQUATE NATIONAL RAILWAY SERVICE.  WISCONSIN RAILROAD COMM'N V.
CHICAGO, B. & Q.R. CO., 257 U.S. 563, 585; NEW ENGLAND DIVISIONS CASE,
261 U.S. 184, 189-190; DAYTON-GOOSE CREEK RY. CO. V. UNITED STATES, 263
U.S. 456, 478; RAILROAD COMM'N V. SOUTHERN PACIFIC CO., 264 U.S. 331,
341, 347; UNITED STATES V. LOUISIANA, 290 U.S. 70; FLORIDA V. UNITED
STATES, 292 U.S. 1, 7-8. 

THE COMMISSION, THOUGH HOLDING IN ITS THIRD REPORT THAT TARIFFS
PUBLISHING THE STORAGE, HANDLING, AND INSURANCE RATES ON FREIGHT STORED
UNDER THE TRANSIT PRIVILEGE SHOULD BE FILED, AFFIRMED ITS PRIOR FINDING
THAT THE SERVICES UNDER THESE RATES ARE NOT TRANSPORTATION SERVICES. 

THE FACT THAT APPELLANTS' BELOW-COST RATES FOR STORAGE, HANDLING, AND
INSURANCE ON FREIGHT STORED UNDER THE TRANSIT PRIVILEGE WERE PUBLISHED
IN APPELLANTS' TARIFFS DID NOT PREVENT THEM FROM CAUSING THE
DISCRIMINATIONS AND OTHER VIOLATIONS FOUND BY THE COMMISSION. 

APPELLANTS' BRIEF SUGGESTS THAT THE ORDER REQUIRES RATES THAT WILL
YIELD A RETURN ON THE INVESTMENT IN THE OPERATION OF THEIR WAREHOUSES,
AND DEPRECIATION.  THE COMMISSION'S REPORTS FIND DEFINITELY THAT
DEPRECIATION IS A PART OF THE COSTS.  AS TO RETURN ON INVESTMENT, THE
ORDER DOES NOT REQUIRE THAT APPELLANTS MAKE WAREHOUSING AND STORAGE
RATES AND SPACE RENTALS THAT WILL YIELD A PROFIT.  IT SIMPLY SETS COSTS
AS THE MINIMUM.  WHERE INTEREST IS PROPERLY A PART OF THE COSTS, IT IS
CLEAR IT MUST BE INCLUDED, BUT THERE IS NOTHING IN THE REPORT AND ORDER
THAT RIGIDLY REQUIRES THE ORIGINAL OR HISTORICAL COST OF CONSTRUCTION
OF BUILDINGS TO BE USED AS THE BASIS. 

IF APPELLANTS ARE IN DOUBT AS TO WHETHER IN PARTICULAR INSTANCES
INTEREST ON INVESTMENT IS TO BE DEEMED A PROFIT, OR PART OF THE COSTS,
THEIR PROPER PROCEDURE IS TO APPLY TO THE COMMISSION FOR A RULING. 
AMERICAN EXPRESS CO. V. CALDWELL, 244 U.S. 617, 627. 

IT IS OBVIOUS THAT THE ORDER DOES NOT ATTEMPT TO REQUIRE WHAT MIGHT
BE IMPOSSIBLE, THAT APPELLANTS' WAREHOUSES BE OPERATED AT A PROFIT. 

THE ORDER FOR THE FUTURE RIGHTLY CORRECTS THE DISCRIMINATIONS AND
OTHER VIOLATIONS OF THE ACT BY REQUIRING REMOVAL OF THE MEANS BY WHICH
THEY WERE ACCOMPLISHED. 

THE ORDER IS A VALID EXERCISE OF THE COMMISSION'S REGULATORY POWER
AND THEREFORE DOES NOT DEPRIVE APPELLANTS OF THEIR LIBERTY OR PROPERTY
IN CONTRAVENTION OF THE FIFTH AMENDMENT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE INTERSTATE COMMERCE COMMISSION ENTERED AN ORDER ON FEBRUARY 2,
1937, WHICH DIRECTED CERTAIN CARRIERS SERVING THE PORT OF NEW YORK
DISTRICT TO CEASE AND DESIST ON OR BEFORE APRIL 5, 1937, FROM
PERMITTING SHIPPERS IN INTERSTATE COMMERCE OVER THE CARRIERS' LINES
FROM OCCUPYING "SPACE BY LEASE OR OTHERWISE IN WAREHOUSES, BUILDINGS OR
ON PIERS OWNED OR CONTROLLED DIRECTLY OR INDIRECTLY BY, OR AFFILIATED
WITH" THE CARRIERS INVOLVED "AT RATES AND CHARGES WHICH FAILED TO
COMPENSATE SAID" CARRIERS "FOR THE COST OF PROVIDING SAID SPACE."  THE
CEASE AND DESIST ORDER LIKEWISE DIRECTED THE CARRIERS TO ABSTAIN FROM
STORING, HANDLING OR INSURING GOODS FOR SHIPPERS AT LESS THAN COST. 
ONE CARRIER WAS ALSO DIRECTED TO ABSTAIN FROM GRANTING CONCESSIONS TO A
WAREHOUSE COMPANY BY MEANS OF LEASING SPACE TO THE WAREHOUSE COMPANY AT
LESS THAN THE COST OF THE SPACE TO THE CARRIER. 

AS AUTHORIZED BY THE JUDICIAL CODE,  FN1  A PETITION IN EQUITY WAS
FILED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK ON MARCH 9, 1937, SEEKING A PERMANENT INJUNCTION AGAINST THE
ENFORCEMENT OF THE ORDER.  A HEARING WAS HAD BY A THREE-JUDGE COURT
PURSUANT TO THE PROVISIONS OF THE URGENT DEFICIENCIES APPROPRIATION ACT
OF OCTOBER 22, 1913,  FN2 AND A FINAL ORDER DISMISSING THE PETITION
ENTERED ON MARCH 23, 1938.  FN3  AN APPEAL WAS TAKEN DIRECTLY TO THIS
COURT AS AUTHORIZED BY THE URGENT DEFICIENCIES ACT AND THE JUDICIAL
CODE.  FN4 

THE ORDER APPEALED FROM WAS ENTERED IN AN INVESTIGATION INTO
"PRACTICES OF CARRIERS AFFECTING OPERATING REVENUES OR EXPENSES"  FN5
UNDERTAKEN BY THE INTERSTATE COMMERCE COMMISSION UPON ITS OWN MOTION. 
FN6  FOR CONVENIENCE THE GENERAL INVESTIGATION WAS DIVIDED INTO
DIFFERENT PARTS; THE ONE IN WHICH THE ORDER UNDER CONSIDERATION WAS
ENTERED IS PART VI, "WAREHOUSING AND STORAGE OF PROPERTY BY CARRIERS AT
THE PORT OF NEW YORK."  THE PARTICULAR PRACTICES AFFECTED BY THE ORDER
WERE BROUGHT TO THE ATTENTION OF THE COMMISSION BY COMPLAINTS OF
WAREHOUSE OPERATORS IN THE NEW YORK DISTRICT THAT WAREHOUSES OWNED OR
CONTROLLED BY THE CARRIERS WERE BEING OPERATED CONTRARY TO THE
INTERSTATE COMMERCE ACT.  FULL REPORTS OF THE INVESTIGATION INTO THE
PRACTICES COMPLAINED OF WERE MADE BY THE COMMISSION ON DECEMBER 12,
1933,  FN7  AND JUNE 8, 1936.  FN8  THE FIRST REPORT TERMINATED IN AN
ADMONITION; THE SECOND REPORT WAS FOLLOWED BY AN ORDER WHICH NEVER
BECAME EFFECTIVE.  THIS ORDER WAS SUPERSEDED BY THE COMMISSION'S ORDER
OF FEBRUARY 2, 1937, IN CONTROVERSY HERE.  THIS LAST ORDER WAS ENTERED
BY THE COMMISSION UPON RECONSIDERATION OF ITS FORMER REPORTS.  FN9  THE
COMMISSION POSTPONED ITS EFFECTIVE DATE UNTIL THE INJUNCTION WAS
BROUGHT AND THE LOWER COURT HAS ENTERED AN ORDER FOR A FURTHER STAY
PENDING THE DETERMINATION OF THE APPEAL TO THIS COURT. 

WHILE THE ISSUES HERE ARE MATTERS OF LAW DEPENDING ON WHETHER
ADMITTED FACTS SUPPORT THE ORDER, IT WILL BE HELPFUL FOR AN
UNDERSTANDING OF THE BASIS OF OUR OPINION TO HAVE SUMMARIZED THE
UNDERLYING FACTS FOUND BY THE LOWER COURT. 

THE RAILROADS AFFECTED BY THE ORDER ARE THE BALTIMORE & OHIO RAILROAD
COMPANY, THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, THE DELAWARE,
LACKAWANNA & WESTERN RAILROAD COMPANY, ERIE RAILROAD COMPANY, LEHIGH
VALLEY RAILROAD COMPANY, THE NEW YORK CENTRAL RAILROAD COMPANY AND THE
PENNSYLVANIA RAILROAD COMPANY.  ALL ARE SUBJECT TO THE INTERSTATE
COMMERCE ACT.  AS COMMON CARRIERS THEY OPERATE LINES OF RAILROAD
EXTENDING IN A GENERALLY WESTWARD DIRECTION FROM THE PORT OF NEW YORK
DISTRICT TO VARIOUS WESTERN POINTS AND COMPETE EACH WITH THE OTHERS FOR
DOMESTIC AND FOREIGN COMMERCE TO AND FROM THE DISTRICT.  ALL UNITED IN
THE PETITION TO ENJOIN THE ENFORCEMENT OF THE ORDER.  THEIR PETITION
NAMED AS DEFENDANT THE UNITED STATES OF AMERICA.  THE INTERSTATE
COMMERCE COMMISSION AND THE WAREHOUSEMEN'S PROTECTIVE COMMITTEE
INTERVENED.  LATER, ORDERS WERE ENTERED ALLOWING THE INTERVENTION OF
THE AMERICAN WAREHOUSEMEN'S ASSOCIATION, MERCHANDISE DIVISION; THE
BOSTON PORT AUTHORITY; AND THE CITY OF BOSTON. 

IT WAS THE PRACTICE OF THESE CARRIERS TO FURNISH TO SHIPPERS IN THE
PORT OF NEW YORK AREA THE STORAGE, HANDLING AND INSURANCE WHICH WERE
UNDER INVESTIGATION.  ON ACCOUNT OF THE HIGH PRICE AND GREAT DEMAND FOR
STORAGE SPACE IN THE WHOLESALE AND RETAIL BUSINESS LOCATIONS OF NEW
YORK, DEALERS MUST STORE THEIR SURPLUS STOCKS IN LOWRENT SECTIONS.  TO
SERVE THOSE MERCHANTS WHO DO NOT HAVE THEIR OWN WAREHOUSE FACILITIES,
NUMEROUS COMPANIES NOT AFFILIATED WITH THE CARRIERS ARE ENGAGED IN THE
COMMERCIAL WAREHOUSE BUSINESS IN THE IMMEDIATE VICINITY OF NEW YORK. 
THEIR BUSINESS, LIKE THE WAREHOUSE BUSINESSES OWNED OR OPERATED BY OR
AFFILIATED WITH THE CARRIERS, NOT ONLY COVERS THE STORAGE OF GOODS BUT
ITS HANDLING IN AND OUT OF CARS AND SHIPS WITH ALL THE INCIDENTAL
SERVICES CONNECTED THEREWITH SUCH AS THE ISSUANCE OF WAREHOUSE
RECEIPTS, INSPECTION, COOPERAGE, MARKING, AND WEIGHING. 

NEITHER THE COMPLAINTS OF THE COMPETITORS OF THE CARRIERS IN THE
WAREHOUSING BUSINESS NOR THE TERMS OF THE COMMISSION'S ORDER ARE
DIRECTED AT THE INVOLUNTARY STORAGE OF GOODS INCIDENTAL TO
TRANSPORTATION.  THIS IS THE PERIOD BEFORE OR AFTER SHIPMENT DURING
WHICH GOODS OCCUPY CARS OR FLOORS WITHOUT ANY CHARGE ABOVE THE STRICTLY
TRANSPORTATION RATE.  THE WAREHOUSING PRACTICES COMPLAINED OF ARE THOSE
IN CONNECTION WITH ACCESSORIAL SERVICES OF THE CARRIERS, ACCURATELY
DESIGNATED COMMERCIAL WAREHOUSING.  EXAMPLES OF SUCH SERVICES ARE THE
STORAGE AND OTHER WAREHOUSING SERVICES FURNISHED BY THE CARRIERS OR
THEIR AFFILIATES OR SUBSIDIARIES, TO ENABLE SHIPPERS TO HOLD AND HANDLE
THEIR COMMODITIES BEYOND THE TIME ALLOWED BY TRANSPORTATION RATES AND
IN WAYS NOT REQUIRED BY RAIL MOVEMENT ITSELF.  ALL OF THE CARRIERS "NOW
GENERALLY STORE FREIGHT ON PIERS OWNED OR LEASED BY THEM AND IN
WAREHOUSES OPERATED BY AFFILIATED OR SUBSIDIARY COMPANIES."  THIS
BUSINESS IS CARRIED ON IN VARIOUS WAYS.  SOME CARRIERS LEASE SPACE TO
SHIPPERS FOR WAREHOUSING; OTHERS HAVE AIDED IN FINANCING STRUCTURES ON
THEIR PROPERTY IN WHICH THEY LEASE SPACE FROM THEIR OWN SUBSIDIARIES;
AND STILL OTHERS OWN DIRECTLY THE BUILDINGS AND LEASE THEM TO
SUBSIDIARIES FOR WAREHOUSE OPERATIONS.  IN ALL CASES THE CARRIERS
EXERCISE SUFFICIENT CONTROL OVER THE WAREHOUSE FACILITIES TO MAKE THEM
SUBSERVIENT TO THE COMPETITIVE NEEDS OF THE CARRIERS.  THEIR ENTRANCE
INTO WAREHOUSING WAS BROUGHT ABOUT BY A DESIRE TO INDUCE SHIPPERS TO
USE PARTICULAR RAIL FACILITIES AND AS FIRST ONE AND THEN THE OTHER OF
THE CARRIERS GAINED TRAFFIC BY THEIR WAREHOUSE CONVENIENCES, IT SEEMED
NECESSARY FOR THEIR COMPETITORS TO EQUIP THEMSELVES WITH SIMILAR
ADVANTAGES.  OBVIOUSLY A SHIPPER, WHO CAN SECURE TRANSPORTATION,
STORAGE, HANDLING AND INSURANCE TOGETHER FROM A CARRIER AND ITS
AFFILIATES FOR AN AGGREGATE COST WHICH IS LESS THAN THE SUM FOR WHICH
HE CAN SECURE THE VARIOUS SERVICES WHEN PURCHASED SEPARATELY FROM
CARRIERS AND NON-AFFILIATED ENTERPRISES, WILL DEAL WITH THOSE OFFERING
THE BEST TERMS.  THE STORAGE LARGELY DETERMINES THE TRANSPORTATION
ROUTE.  TO GET THE RAIL TRANSPORTATION OF LARGE SHIPPERS, THE CARRIERS
SOUGHT THEM OUT AND OFFERED WAREHOUSING SERVICES AND SPACE BELOW THE
RATES OF PRIVATE WAREHOUSEMEN AND BELOW THE COST TO THE CARRIERS OF THE
SERVICES RENDERED.  IT WAS NOT ONLY A CONTEST BETWEEN CARRIERS AND
PRIVATE WAREHOUSEMEN BUT ALSO BETWEEN THE CARRIERS THEMSELVES.  TRAFFIC
DEPARTMENTS OF THE RAILROADS BECAME SOLICITORS FOR WAREHOUSING
BUSINESS.  FAVORED SHIPPERS WERE RENTED SPACE BY THE CARRIERS BELOW
COMPENSATORY FIGURES.  TO MEET THE REQUIREMENTS OF THIS COMPETITION THE
VARIOUS PORT OF NEW YORK RAILROADS ADDED MANY NEW BUILDINGS IN RECENT
YEARS.  THIS PROVIDED MANY MILLIONS OF SQUARE FEET OF SPACE ABOVE THE
PRESENT NEEDS OF THE DISTRICT.  FN10 

ANOTHER FORM OF WAREHOUSING IS FOUND IN A DEVELOPMENT OF THE STORAGE
IN-TRANSIT PRIVILEGE AT THE PORT OF NEW YORK.  THE CARRIERS HAVE RULES
AND REGULATIONS GOVERNING THIS PRIVILEGE WHICH ARE PUBLISHED IN
SEPARATE TARIFFS FILED WITH THE COMMISSION.  THESE TARIFFS PROVIDE THAT
WESTBOUND FREIGHT IN CARLOADS "FROM POINTS WITHIN THE FREE LIGHTERAGE
LIMITS OF NEW YORK HARBOR MAY BE STORED IN DESIGNATED WAREHOUSES  ...
WITHIN THE PORT DISTRICT, AND, IF REFORWARDED BY RAIL WITHIN THE PERIOD
SPECIFIED IN THE TARIFFS  ...  THE THROUGH RATE  ...  FROM POINT OF
ORIGIN IN NEW YORK HARBOR TO THE FINAL DESTINATION, WILL BE APPLIED." 

AS THE THROUGH RATE FROM SHIPSIDE AND FROM WAREHOUSE IS THE SAME, IF
THE SHIPMENT MOVES OUTBOUND FROM THE WAREHOUSE OVER THE LINE OF THE
INBOUND CARRIER, A SHIPPER USING CARRIER WAREHOUSES HAS THE ADVANTAGE
OF PORT STOPPAGE WITHOUT EXTRA TRANSPORTATION COST.  THIS TARIFF
ARRANGEMENT DOES NOT AFFECT CHARGES FOR WAREHOUSING SERVICES IN
CONNECTION WITH THE STORAGE.  THE STORAGE IS COMMERCIAL IN CHARACTER
AND INVOLVES LARGE TONNAGES.  WHILE THE TRANSPORTATION TARIFFS PERMIT
VARYING PERIODS OF FROM TWELVE TO THIRTY-SIX MONTHS FOR THE DIFFERENT
COMMODITIES, STORAGE MAY BE CONTINUED BEYOND THIS TIME LIMIT AT THE
SAME RATE.  PRIOR TO OCTOBER 16, 1934, THE TARIFFS PERMITTED THE
REMOVAL OF THE COMMODITIES STORED AT ANY TIME IN ANY QUANTITY AND BY
ANY MEANS OF TRANSPORTATION WITHOUT ADDITIONAL CHARGE.  ON THAT DATE AN
ADDITIONAL CHARGE WAS PROVIDED FOR WITHDRAWAL BY MEANS OTHER THAN OVER
THE RAILROAD WHICH GRANTED THE STORAGE.  IT WILL BE NOTED THAT IN THE
MOVEMENT FROM SHIPSIDE TO A WESTERN DESTINATION AN EXTRA HANDLING OF
THE COMMODITY IS REQUIRED IF THE WAREHOUSE IS LOCATED DIRECTLY ON THE
WATERFRONT AND TWO EXTRA HANDLINGS IF THE GOODS MUST FIRST BE
TRANSPORTED FROM THE WATER-FRONT TO THE WAREHOUSE AND THEN LOADED INTO
WESTBOUND CARS.  THE COST OF THESE EXTRA HANDLINGS IS BORNE BY THE
CARRIER.  INSURANCE IS FURNISHED AT A LEVEL PREMIUM RATE
NOTWITHSTANDING THE VARIABLES OF THE DIFFERENT EXPOSURES.  ALL IN ALL,
IT WAS DETERMINED, AND THIS CONCLUSION IS NOT IN DISPUTE, THAT THE
WAREHOUSE SERVICES WERE PERFORMED "AT RATES AND CHARGES WHICH FAIL TO
COMPENSATE" THE CARRIERS FOR THE COST. 

THROUGH ARRANGEMENTS PERMITTING DISTRIBUTORS TO AVOID PAYMENT OF
TARIFF CHARGES FOR STORAGE, THE COMMISSION AND THE DISTRICT COURT FOUND
THAT THE CARRIERS PERMITTED DISTRIBUTORS OF FLOUR TO GET UNJUST AND
DISCRIMINATORY CHARGES. 

AFTER EXAMINING THE DETAILS OF COST OF THE VARIOUS CARRIERS FOR
WAREHOUSING, BOTH AS STORAGE-IN-TRANSIT AND ORDINARY STORAGE, THE
CONCLUSION OF THE INTERSTATE COMMERCE COMMISSION WAS THAT THE
COMMERCIAL WAREHOUSING WAS CARRIED ON AT A SUBSTANTIAL LOSS.  THE TERM
"COMMERCIAL WAREHOUSING" COVERS ALL WAREHOUSING PRACTICES EXCEPT THOSE
STRICTLY A PART OF THE OPERATION OF RAIL TRANSPORTATION.  THIS PHASE OF
THE CIRCUMSTANCES SURROUNDING THE ORDER MAY BE SUMMED UP IN THE WORDS
OF THE 179TH FINDING OF FACT OF THE DISTRICT COURT, WHICH READS AS
FOLLOWS: 

"IN ITS FIRST REPORT THE COMMISSION POINTED OUT THAT THE MATTERS AND
TRANSACTIONS REFERRED TO THEREIN 'ARE FURTHER ILLUSTRATIONS OF SERIOUS
WASTE RESULTING FROM THE COMPETITION OF RAILROADS WITH EACH OTHER FOR
TRAFFIC.'  THE EXTENT OF THIS WASTE IS INDICATED BY STATEMENTS
CONTAINED IN APPENDICES TO THE REPORT, APPENDIX I OF WHICH SHOWS THAT
THE SEVEN PLAINTIFFS EXPENDED APPROXIMATELY $35,000,000 IN CONNECTION
WITH THE WAREHOUSE PROJECTS CONSIDERED IN THE REPORT.  IN ITS SECOND
REPORT THE COMMISSION FOUND THAT UP TO THE CLOSE OF THE YEAR 1930, THE
COLD STORAGE INDUSTRY HAD PLACED 33,688,546 CUBIC FEET OF REFRIGERATED
SPACE ON THE MARKET IN THE PORT OF NEW YORK DISTRICT, AND THAT WITHIN A
PERIOD OF THREE YEARS THEREAFTER WAREHOUSES AFFILIATED WITH THE ERIE
AND PENNSYLVANIA PLACED AN ADDITIONAL 8,500,000 CUBIC FEET OF
REFRIGERATED SPACE ON THE MARKET, NOTWITHSTANDING THE FACT THAT AT THE
TIME THERE WAS AN UNUSED CAPACITY OF AT LEAST 30 PER CENT OF THE THEN
EXISTING FACILITIES; AND FURTHER THAT AS OF THE CLOSE OF THE YEAR 1930
THE 43 WAREHOUSE COMPANIES OPERATING MERCHANDISE WAREHOUSES, OTHER THAN
COLD STORAGE, IN THE PORT OF NEW YORK DISTRICT HAD PLACED 20,450,000
SQUARE FEET OF WAREHOUSE SPACE ON THE MARKET IN THAT DISTRICT, AND THAT
WITHIN SIX YEARS SUBSEQUENT TO JANUARY 1, 1929, THE PLAINTIFFS OR THEIR
AFFILIATES PLACED 6,185,000 SQUARE FEET OF NEW ADDITIONAL MERCHANDISE
WAREHOUSE SPACE ON THE MARKET, THEREBY, WITHOUT COMMERCIAL NEED,
INCREASING THE CAPACITY AT LEAST 25 PER CENT.  APPENDIX II OF THE FIRST
REPORT SHOWS THAT THE LOSS INCURRED BY PLAINTIFFS IN CONNECTION WITH
THEIR WAREHOUSE PROJECTS DURING THE YEAR 1931 WAS $1,260,441.  APPENDIX
III SHOWS THAT THE LOSS PER TON OF FREIGHT STORED IN TRANSIT DURING
1931 RANGED FROM $1.28 TO $6.18.  THESE LOSSES WERE ADDED TO BY LOSSES
INCURRED ON FREIGHT STORED ON RAILROAD PIERS, AND IN CARS, ON INSURANCE
PREMIUMS, AND FROM LOANS AND ADVANCES.  IN THIS CONNECTION THE
COMMISSION FOUND:  'WHETHER OR NOT INITIAL ADVANTAGES MAY HAVE BEEN
REALIZED AT ONE TIME OR ANOTHER, BY INDIVIDUAL CARRIERS, THE RESULT IS
THAT A PREFERRED GROUP OF LARGE SHIPPERS ARE NOW THE SOLE
BENEFICIARIES, AND ARE SO AT THE EXPENSE OF THE CARRIERS AND THE
GENERAL SHIPPING PUBLIC.'  AND THE COMMISSION FOUND 'THAT THE
RESPONDENTS' WAREHOUSING AND STORAGE PRACTICES, CHARGES ASSESSED, AND
ALLOWANCES MADE IN CONNECTION THEREWITH AT THE PORT OF NEW YORK
DISTRICT DISSIPATE THEIR FUNDS AND REVENUES, ARE NOT IN CONFORMITY WITH
EFFICIENT AND ECONOMICAL MANAGEMENT AS CONTEMPLATED BY THE INTERSTATE
COMMERCE ACT, AND ARE NOT IN THE PUBLIC INTEREST.'" 

THE FINAL ORDER OF THE DISTRICT COURT, DISMISSING UPON THESE FACTS
THE PETITION FOR INJUNCTION TO RESTRAIN THE ENFORCEMENT OF THE
COMMISSION'S ORDER, IS ATTACKED HERE UPON TWO GROUNDS:  FIRST, THAT THE
RENDITION OF SERVICES TO THE PUBLIC AT LESS THAN COST IS INSUFFICIENT
IN LAW TO ESTABLISH THAT THE CARRIERS THEREBY MAKE CONCESSIONS AND
THROUGH SUCH CONCESSIONS ARE GUILTY OF THE VIOLATION OF SECS. 2, 3 AND
6 OF THE INTERSTATE COMMERCE ACT; SECOND, THAT THE CARRIERS HAVING
PUBLISHED AND OBSERVED TARIFFS COVERING STORAGE-IN-TRANSIT CANNOT BE
GUILTY AS TO SUCH SERVICES OF VIOLATIONS OF THE SAME THREE SECTIONS. 

THE CARRIERS CONTEND THAT THE QUESTIONS INVOLVED IN CHARGES OF
VIOLATIONS OF THE INTERSTATE COMMERCE ACT BY DISCRIMINATION AND REBATE
ARE TO BE JUDGED BY THE REASONABLE WORTH OF THE SERVICES RENDERED
INSTEAD OF BY THE COST TO THE CARRIER AND THAT THE CHARGES FOR STORAGE
IN-TRANSIT ARE NOT WAREHOUSING COSTS BUT TRANSPORTATION COSTS AND
THEREFORE IT IS NO VIOLATION OF THE ACT TO FURNISH THEM AT LESS THAN
COST TO THE CARRIERS. 

WAREHOUSING CHARGES.  - THE ORDER, AS ENTERED BY THE COMMISSION  FN11
AND SUSTAINED BY THE LOWER COURT, WAS AN EXERCISE BY THE COMMISSION OF
ITS POWER TO CAUSE CARRIERS TO CEASE AND DESIST FROM PRACTICES WHICH
RESULT IN THE RECEIPT OF LESS THAN THE PUBLISHED TARIFFS FOR
TRANSPORTATION SERVICES, WITH THE CONSEQUENCE THAT CONCESSIONS WERE
GIVEN AND PREFERENCES AND ADVANTAGES OBTAINED BY CERTAIN SHIPPERS.  ITS
VALIDITY, EXCEPT AS IT MAY BE AFFECTED BY CONSIDERATION OF THE POINT
THAT THE PRACTICES WERE IN ACCORDANCE WITH TARIFFS MADE AND FILED WITH
THE COMMISSION, DEPENDS UPON WHETHER A FINDING THAT THE WAREHOUSING
SERVICES WERE RENDERED AT A CHARGE BELOW COST TO THE CARRIER AUTHORIZED
THE ORDER, WITHOUT THE FURTHER FINDING THAT THE REASONABLE VALUE OF THE
SERVICE WAS ABOVE THE CHARGE. 

IT WAS THE VIEW OF THE COMMISSION AND THE LOWER COURT THAT THE
FINDING OF THE COMMISSION SHOWED A VIOLATION OF SECS. 2, 3(1) AND 6(7)
OF THE INTERSTATE COMMERCE ACT.  FN12  THESE SECTIONS WERE ENACTED TO
ASSURE THE MAINTENANCE OF RAIL TRANSPORTATION TARIFFS WITHOUT REBATE,
DISCRIMINATION OR PREFERENCE.  NO FINDINGS APPEAR, NOR HAS OUR
ATTENTION BEEN CALLED TO ANY EVIDENCE, WHICH SUGGESTS THE CHARGES WERE
MADE TO MEET THE COMPETITION OF THE COMMERCIAL WAREHOUSEMEN OR WERE
BASED UPON THE FAIR VALUE OF THE SERVICES RENDERED, REGARDLESS OF
COMPETITION.  ON THE CONTRARY, IT WAS THE CARRIERS' STRUGGLE TO OBTAIN
LINE HAUL TRAFFIC WHICH LED THEM INTO THE PRICE CUTTING WARFARE. 
CHARGES FOR LEASES, STORAGE, BOTH IN AND OUT OF THE TRANSIT PRIVILEGE,
HANDLING AND INSURANCE WERE ALIKE SLASHED TO MEET THE COMPETITION. 

SINCE THE TARIFFS FOR RAIL HAUL ARE FIXED FOR THE VARIOUS POINTS AND
FREIGHT CLASSIFICATIONS, EVERY SHIPPER MUST PAY THAT TARIFF FOR HIS
TRANSPORTATION.  AS THE SHIPPERS OF THE PORT OF NEW YORK DISTRICT CAN
UTILIZE, IN MANY INSTANCES, COMMERCIAL STORAGE AND OTHER WAREHOUSING
SERVICES IN ADDITION TO RAIL TRANSPORTATION, A SAVING ON THE NON
TRANSPORTATION SERVICES OBVIOUSLY FIGURES OUT THE SAME AS A REBATE ON
THE TRANSPORTATION SERVICE.  IT IS IMMATERIAL THAT THE SHIPPER PAYS
FAIR VALUE OR THE MARKET PRICE FOR THE EXTRA PRIVILEGE HE ENJOYS. 
PUBLISHED RATES FOR TRANSPORTATION OR TO REMIT "BY ANY DEVICE ANY
PORTION OF THE RATES."  WHEN SERVICES, NOT NECESSARY FOR
TRANSPORTATION, ARE FURNISHED BELOW COST IN AN EFFORT TO ACQUIRE RAIL
TRANSPORTATION, AS WAS DONE HERE, THIS PROVISION IS VIOLATED.  FN13
SINCE THE CARRIER WAREHOUSE RATES, AS FOUND BY THE COURT AND
COMMISSION, ARE NOT OPEN TO ALL SHIPPERS ALIKE,  FN14  THERE IS
VIOLATION OF SECS. 2 AND 3(1) PROHIBITING DISCRIMINATION AND
UNREASONABLE PREJUDICE.  THE RAIL TRANSPORTATION RATES HAVE CHARGED
AGAINST THEM THE LOSS OCCASIONED BY WAREHOUSING PRACTICES DESIGNED TO
ATTRACT A VOLUME OF RAIL BUSINESS.    THIS IS NOT TO SAY THAT FOR EVERY
SITUATION IT IS NECESSARY THAT ACCESSORIAL SERVICES SHOULD BE RENDERED
AT NOT LESS THAN COST, RATHER THAN MARKET OR FAIR VALUE.  THE
COMMISSION POINTED OUT IT WAS NOT CONDEMNING BONA FIDE STORAGE-IN
TRANSIT FOR MILLING, MANUFACTURING OR PROCESSING,  FN15 BUT ONLY THE
STORAGE PRACTICES INDULGED IN HERE TO GET RAIL TRANSPORTATION.  IN
OTHER CIRCUMSTANCES FAIR VALUE AND MARKET HAVE BEEN RECOGNIZED AS
LEGITIMATE BASES.  FN16  WHERE COMPETITIVE PRACTICES SUCH AS EXISTED
HERE ARE ABSENT, REASONABLE OR MARKET VALUE CHARGES MAY WELL BE THE
TEST.  THE POWER, HOWEVER, IS IN THE COMMISSION, WHENEVER IT IS OF THE
OPINION THAT ANY PRACTICE IS UNJUST, UNREASONABLE, PREFERENTIAL OR
OTHERWISE VIOLATIVE OF THE ACT, TO PRESCRIBE WHAT PRACTICE WILL BE
JUST, FAIR AND REASONABLE N17.  AS IN MERCHANTS WAREHOUSE CO. V. UNITED
STATES  FN18  THE COMMISSION "RIGHTLY SECURED THE DISCONTINUANCE OF THE
DISCRIMINATION BY ORDERING THE CARRIERS TO CEASE EMPLOYING THE MEANS BY
WHICH IT HAD BEEN ACCOMPLISHED." 

IN-TRANSIT TARIFFS.  - THE CARRIERS URGE ADDITIONAL REASONS WHY THE
ORDER IS INVALID AS TO IN-TRANSIT STORAGE.  THEY FIND IN THE ORDER AS
TO IT ALL THE ALLEGED VICES OF THE ORDER WITH RESPECT TO LEASES AND NON
TRANSIT STORAGE, WHICH ARISE FROM BASING THE MINIMUM CHARGES ON COST
RATHER THAN MARKET OR FAIR VALUE.  THEY ALSO CONTEND THAT SINCE THE
CHARGES FOR IN-TRANSIT ARRANGEMENTS ARE AND MUST BE PUBLISHED IN
TARIFFS, THEY ARE A PART OF TRANSPORTATION COSTS AND THEREFORE MAY BE
RENDERED AT LESS THAN COST.  FN19  EVEN IF THE IN-TRANSIT WAREHOUSING
IS NOT TECHNICALLY TRANSPORTATION, SAY THE CARRIERS, ITS INCLUSION IN
TARIFFS IS SUFFICIENT TO PROTECT IT FROM THE ATTACK THAT ITS BELOW-COST
CHARGES VIOLATE SEC. 6.  THE CARRIERS INSIST THAT THEY DO NOT REMIT BY
ANY DEVICE ANY PORTION OF THE SPECIFIED TARIFF CHARGES AND THAT, AS
ASSERTED VIOLATIONS OF SECS. 2 AND 3 ARE PREDICATED UPON VIOLATIONS OF
SEC. 6, NONE OF THE FINDINGS AS TO IN-TRANSIT CHARGES SUPPORTS THE
ORDERS. 

THE COMMISSION FOUND THAT THE IN-TRANSIT WAREHOUSING WAS NOT A PART
OF TRANSPORTATION.  THIS FINDING IS NOT AFFECTED BY THE DETERMINATION
OF THE COMMISSION THAT THE RATES AND CHARGES SHOULD BE PUBLISHED IN THE
TARIFFS.  INDEED, IN ITS REPORT ON THE SUBJECT THE COMMISSION SAID
"WHAT IS HERE CONDEMNED IS THE FACT THAT THE RESPONDENTS HAVE
VOLNTARILY ENGAGED IN STORAGE AND WAREHOUSING SERVICES WHICH ARE NOT
WITHIN THEIR COMMON-CARRIER OBLIGATIONS AND, BY PROVIDING SUCH SERVICES
TO SHIPPERS BELOW THE COST OF SUCH SERVICES, REDUCE THE COST TO SUCH
SHIPPERS FOR THE TRANSPORTATION OF THEIR GOODS.  THE TARIFFS NOW ON
FILE ARE INSTRUMENTS WHICH WORK VIOLATIONS OF THE ACT IN THAT, THROUGH
THEM, RESPONDENTS HOLD THEMSELVES OUT TO PERFORM COMMERCIAL SERVICES
(UNDER THE GUISE OF PERFORMING TRANSPORTATION SERVICES) AT RATES AND
CHARGES WHICH FAIL TO COMPENSATE RESPONDENTS FOR THE COST OF PERFORMING
THEM, AND THEREBY VIOLATE SECTIONS 2, 3, AND 6 OF THE ACT."  FN20 

WE ACCEPT THIS CONCLUSION.  FN21  IF THE SERVICE IS NON
TRANSPORTATION, THE FACT THAT IT IS IN A TARIFF DOES NOT SAVE IT FROM
THE CONDEMNATION OF SEC. 6(7).  THAT SECTION FORBIDS RECEIVING A LESS
COMPENSATION FOR TRANSPORTATION THAN THE TARIFF.  THE LOSS ON IN
TRANSIT WAREHOUSING, ENTERED INTO TO SECURE THE RAIL-HAUL, RESULTS IN
LOWERED RECEIPTS FOR THE TRANSPORTATION AND IN VIOLATION OF THE
THE BELOW-COST IN-TRANSIT SERVICE.  THEY MUST PAY THE FULL
TRANSPORTATION RATE, WITHOUT ANY OFFSET FROM THE WAREHOUSING.  THIS
DISCRIMINATION BETWEEN SHIPPERS IS UNLAWFUL AND THE REMEDY APPLIED BY
THE ORDER VALID IN THESE CIRCUMSTANCES. 

CONCLUSION. - WE DO NOT DISCUSS THE SUGGESTION THAT THE ORDER
DEPRIVES THE CARRIERS OF THEIR LIBERTY AND PROPERTY CONTRARY TO THE
FIFTH AMENDMENT.  IF, AS HERE HELD, THE ORDER IS A VALID REGULATION OF
RATES FOR WAREHOUSING SERVICES WHICH AFFECT TRANSPORTATION TARIFFS, IT
CANNOT BE UNCONSTITUTIONAL.  APPELLANTS' CONTENTION OF
UNCONSTITUTIONALITY IS PREDICATED ON THE INVALIDITY OF THE ORDER UNDER
THE INTERSTATE COMMERCE ACT.  AFFIRMED. 

FN1  SEC. 24, SUBSECTION 28. 

FN2  38 STAT. 220. 

FN3  FOR OPINION BELOW SEE BALTIMORE & O.R. CO. V. UNITED STATES
(I.C.C.), 20 F.SUPP.  273. 

FN4  JUDICIAL CODE, SEC. 238. 

FN5  EX PARTE 104, 198 I.C.C. 134. 

FN6  INTERSTATE COMMERCE ACT, ACT OF FEB. 4, 1887, C. 104, SEC.
13(2), 24 STAT. 383, AS AMENDED; 49 U.S.C. SEC. 13(2). 

FN7  198 I.C.C. 134. 

FN8  216 I.C.C. 291. 

FN9  220 I.C.C. 102. 

FN10  THOSE INTERESTED IN THE DETAILS WILL FIND THEM IN 198 I.C.C.
134, 216 I.C.C. 291, 220 I.C.C. 102. 

FN11  THE PERTINENT LANGUAGE OF THE ORDER FOLLOWS:  "IT IS ORDERED,
THAT THE RESPONDENT CARRIERS ...  BE, AND THEY ARE HEREBY, NOTIFIED AND
REQUIRED TO CEASE AND DESIST  ...  FROM PERMITTING SHIPPERS  ...  TO
OCCUPY SPACE BY LEASE OR OTHERWISE IN  ... BUILDINGS,  ...  OWNED OR
CONTROLLED ...  BY  ...  RESPONDENTS  ...  AT RATES AND CHARGES WHICH
FAIL TO COMPENSATE SAID RESPONDENTS FOR THE COST OF PROVIDING SPACE; 

"IT IS FURTHER ORDERED, THAT THE RESPONDENT CARRIERS  ...  ARE HEREBY
...  REQUIRED TO CEASE AND DESIST  ...  FROM STORING GOODS  ...  AT
RATES AND CHARGES WHICH FAIL TO COMPENSATE SAID RESPONDENTS FOR THE
COST OF STORING SUCH GOODS OR PROVIDING SUCH STORAGE SPACE. 

"IT IS FURTHER ORDERED, THAT THE RESPONDENT CARRIERS  ...  ARE HEREBY
...  REQUIRED TO CEASE AND DESIST  ...  FROM  ...  HANDLING GOODS  ...
FOR SHIPPERS  ...  AT RATES AND CHARGES WHICH FAIL TO COMPENSATE SAID
RESPONDENTS FOR THE COST OF SAID HANDLING. 

"IT IS FURTHER ORDERED, THAT THE RESPONDENT CARRIERS  ...  (EXCEPT
THE CENTRAL RAILROAD COMPANY OF NEW JERSEY)  ...  ARE HEREBY  ...
REQUIRED TO CEASE AND DESIST  ...  FROM INSURING GOODS  ... AT LESS
THAN THE COST OF PROVIDING SUCH INSURANCE. 

"IT IS FURTHER ORDERED, THAT THE RESPONDENT CARRIERS ABOVE-NAMED BE,
AND THEY ARE HEREBY, NOTIFIED AND REQUIRED TO CEASE AND DESIST FROM
APPLYING, BY MEANS OF TARIFFS NOW ON FILE WITH THIS COMMISSION ON OR
BEFORE APRIL 15, 1937, NONCOMPENSATORY RATES AND CHARGES, AS FULLY
DESCRIBED IN SAID REPORTS, FOR THE LEASING OF SPACE, STORAGE, HANDLING
AND INSURANCE OF GOODS SHIPPED OVER THEIR LINES IN INTERSTATE COMMERCE
WHICH GOODS ARE STORED, HANDLED OR INSURED IN CONNECTION WITH
COMMERCIAL WAREHOUSING SERVICE AS FULLY DEFINED AND DESCRIBED IN SAID
REPORTS. 

 .         .         .         .         . 

"AND IT IS FURTHER ORDERED, THAT RESPONDENT, THE CENTRAL RAILROAD
COMPANY OF NEW JERSEY, BE, AND IT IS HEREBY, NOTIFIED AND REQUIRED TO
CEASE AND DESIST, ON OR BEFORE APRIL 15, 1937, AND THEREAFTER TO
ABSTAIN, FROM SUBSIDIZING AND GRANTING CONCESSIONS TO THE NEWARK
CENTRAL WAREHOUSE COMPANY BY MEANS OF NONCOMPENSATORY RENTALS COLLECTED
OR RECEIVED FOR THE SPACED LEASED BY THE NEWARK CENTRAL WAREHOUSE
COMPANY FROM SAID RESPONDENT CARRIER, AS FULLY DESCRIBED OF RECORD AND
IN SAID REPORTS." 

FN12  ACT OF FEBRUARY 4, 1887, C. 104, 24 STAT. 379, AS AMENDED; 49
U.S.C. SECS. 2, 3(1), 6(7). 

"SEC. 2.  IF ANY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS
CHAPTER SHALL, DIRECTLY OR INDIRECTLY, BY ANY SPECIAL RATE, REBATE,
DRAWBACK, OR OTHER DEVICE, CHARGE, DEMAND, COLLECT, OR RECEIVE FROM ANY
PERSON OR PERSONS A GREATER OR LESS COMPENSATION FOR ANY SERVICE
RENDERED OR TO BE RENDERED, IN THE TRANSPORTATION OF PASSENGERS OR
PROPERTY, SUBJECT TO THE PROVISIONS OF THIS CHAPTER, THAN IT CHARGES,
DEMANDS, COLLECTS, OR RECEIVES FROM ANY OTHER PERSON OR PERSONS FOR
DOING FOR HIM OR THEM A LIKE AND CONTEMPORANEOUS SERVICE IN THE
TRANSPORTATION OF A LIKE KIND OF TRAFFIC UNDER SUBSTANTIALLY SIMILAR
CIRCUMSTANCES AND CONDITIONS, SUCH COMMON CARRIER SHALL BE DEEMED
GUILTY OF UNJUST DISCRIMINATION, WHICH IS PROHIBITED AND DECLARED TO BE
UNLAWFUL. 

"SEC. 3.  (1) IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO
THE PROVISIONS OF THIS CHAPTER TO MAKE OR GIVE ANY UNDUE OR
UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY PARTICULAR PERSON, COMPANY,
FIRM, CORPORATION, OR LOCALITY, OR ANY PARTICULAR DESCRIPTION OF
TRAFFIC, IN ANY RESPECT WHATSOEVER, OR TO SUBJECT ANY PARTICULAR
PERSON, COMPANY, FIRM, CORPORATION, OR LOCALITY, OR ANY PARTICULAR
DESCRIPTION OF TRAFFIC, TO ANY UNDUE OR UNREASONABLE PREJUDICE OR
DISADVANTAGE IN ANY RESPECT WHATSOEVER. 

"SEC. 6.  ...  (7)  ...  NOR SHALL ANY CARRIER CHARGE OR DEMAND OR
COLLECT OR RECEIVE A GREATER OR LESS OR DIFFERENT COMPENSATION FOR SUCH
TRANSPORTATION OF PASSENGERS OR PROPERTY, OR FOR ANY SERVICE IN
CONNECTION THEREWITH, BETWEEN THE POINTS NAMED IN SUCH TARIFFS THAN THE
RATES, FARES, AND CHARGES WHICH ARE SPECIFIED IN THE TARIFF FILED AND
IN EFFECT AT THE TIME; NOR SHALL ANY CARRIER REFUND OR REMIT IN ANY
MANNER OR BY ANY DEVICE ANY PORTION OF THE RATES, FARES, AND CHARGES SO
SPECIFIED, NOR EXTEND TO ANY SHIPPER OR PERSON ANY PRIVILEGES OR
FACILITIES IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY, EXCEPT SUCH
AS ARE SPECIFIED IN SUCH TARIFFS." 

FN13 CF. WIGHT V. UNITED STATES, 167 U.S. 512; SEABOARD AIR LINE V.
UNITED STATES, 254 U.S. 57, 63; NEW YORK, N.H. & H.R. CO. V. INTERSTATE
COMMERCE COMM'N, 200 U.S. 361. 

FN14  198 I.C.C. AT 197. 

FN15  216 I.C.C. 291, 356. 

FN16  LEASES AND GRANTS BY CARRIERS TO SHIPPERS, 73 I.C.C. 671, 683,
684.  CF. WHARFAGE CHARGES AT ATLANTIC AND GULF PORTS, 157 I.C.C. 663,
692; CENTRAL OF GEORGIA RY. CO. V. BLOUNT, 238 F. 292, 296. 

FN17  SEC. 15(1), 41 STAT. 484; 49 U.S.C. SEC. 15(1). 

FN18  283 U.S. 501, 513. 

FN19  CLEVELAND, C.C. & ST. L. RY. CO. V. DETTLEBACH, 239 U.S. 588;
ST. LOUIS & SAN FRANCISCO RY. CO. V. GILL, 156 U.S. 649, 665, 666;
ATLANTIC COAST LINE V. NORTH CAROLINA COMM'N, 206 U.S. 1, 26-7;
NORTHERN PACIFIC R. CO. V. NORTH DAKOTA, 236 U.S. 585, 600; MINNEAPOLIS
& ST. L.R. CO. V. MINNESOTA, 186 U.S. 257, 268. 

FN20  220 I.C.C. AT 103-104. 

FN21  UNITED STATES V. AMERICAN SHEET & TIN PLATE CO., 301 U.S. 402,
406. 
..END :




MISSOURI EX REL. GAINES V. CANADA, 305 U.S. 337 


NO. 57.  ARGUED NOVEMBER 9, 1938.  - DECIDED DECEMBER 12, 1938.  - 342
MO. 121 - 113 S.W.2D 783, REVERSED. 


1.  THE STATE OF MISSOURI PROVIDES SEPARATE SCHOOLS AND UNIVERSITIES
FOR WHITES AND NEGROES.  AT THE STATE UNIVERSITY, ATTENDED BY WHITES,
THERE IS A COURSE IN LAW; AT THE LINCOLN UNIVERSITY, ATTENDED BY
NEGROES, THERE IS AS YET NONE, BUT IT IS THE DUTY OF THE CURATORS OF
THAT INSTITUTION TO ESTABLISH ONE THERE WHENEVER IN THEIR OPINION THIS
SHALL BE NECESSARY AND PRACTICABLE, AND PENDING SUCH DEVELOPMENT, THEY
ARE AUTHORIZED TO ARRANGE FOR LEGAL EDUCATION OF MISSOURI NEGROES, AND
TO PAY THE TUITION CHARGES THEREFOR, AT LAW SCHOOLS IN ADJACENT STATES
WHERE NEGROES ARE ACCEPTED AND WHERE THE TRAINING IS EQUAL TO THAT
OBTAINABLE AT THE MISSOURI STATE UNIVERSITY.  PURSUANT TO THE STATE'S
POLICY OF SEPARATING THE RACES IN ITS EDUCATIONAL INSTITUTIONS, THE
CURATORS OF THE STATE UNIVERSITY REFUSED TO ADMIT A NEGRO AS A STUDENT
IN THE LAW SCHOOL THERE BECAUSE OF HIS RACE; WHEREUPON HE SOUGHT A
MANDAMUS, IN THE STATE COURTS, WHICH WAS DENIED.  HELD: 

(1)  THAT INASMUCH AS THE CURATORS OF THE STATE UNIVERSITY
REPRESENTED THE STATE, IN CARRYING OUT ITS POLICY, THEIR ACTION IN
DENYING THE NEGRO ADMISSION TO THE LAW SCHOOL WAS STATE ACTION, WITHIN
THE MEANING OF THE FOURTEENTH AMENDMENT.  P. 343. 

(2)  THE ACTION OF THE STATE IN FURNISHING LEGAL EDUCATION WITHIN THE
STATE TO WHITES WHILE NOT FURNISHING LEGAL EDUCATION WITHIN THE STATE
TO NEGROES, WAS A DISCRIMINATION REPUGNANT TO THE FOURTEENTH
AMENDMENT.  P. 344. 

IF A STATE FURNISHES HIGHER EDUCATION TO WHITE RESIDENTS, IT IS BOUND
TO FURNISH SUBSTANTIALLY EQUAL ADVANTAGES TO NEGRO RESIDENTS, THOUGH
NOT NECESSARILY IN THE SAME SCHOOLS. 

(3)  THE UNCONSTITUTIONAL DISCRIMINATION IS NOT AVOIDED BY THE
PURPOSE OF THE STATE TO ESTABLISH A LAW SCHOOL FOR NEGROES WHENEVER
NECESSARY AND PRACTICABLE IN THE OPINION OF THE CURATORS OF THE
UNIVERSITY PROVIDED FOR NEGROES.  P. 346. 

(4)  NOR ARE THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE
SATISFIED BY THE OPPORTUNITIES AFFORDED BY MISSOURI TO ITS NEGRO
CITIZENS FOR LEGAL EDUCATION IN OTHER STATES.  P. 348. 

THE BASIC CONSIDERATION HERE IS NOT AS TO WHAT SORT OF OPPORTUNITIES
OTHER STATES PROVIDE, OR WHETHER THEY ARE AS GOOD AS THOSE IN MISSOURI,
BUT AS TO WHAT OPPORTUNITIES MISSOURI ITSELF FURNISHES TO WHITE
STUDENTS AND DENIES TO NEGROES SOLELY UPON THE GROUND OF COLOR.  THE
ADMISSIBILITY OF LAWS SEPARATING THE RACES IN THE ENJOYMENT OF
PRIVILEGES AFFORDED BY THE STATE RESTS WHOLLY UPON THE EQUALITY OF THE
PRIVILEGES WHICH THE LAWS GIVE TO THE SEPARATED GROUPS WITHIN THE
STATE.  BY THE OPERATION OF THE LAWS OF MISSOURI A PRIVILEGE HAS BEEN
CREATED FOR WHITE LAW STUDENTS WHICH IS DENIED TO NEGROES BY REASON OF
THEIR RACE.  THE WHITE RESIDENT IS AFFORDED LEGAL EDUCATION WITHIN THE
STATE; THE NEGRO RESIDENT HAVING THE SAME QUALIFICATIONS IS REFUSED IT
THERE AND MUST GO OUTSIDE THE STATE TO OBTAIN IT.  THAT IS A DENIAL OF
THE EQUALITY OF LEGAL RIGHT TO THE ENJOYMENT OF THE PRIVILEGE WHICH THE
STATE HAS SET UP, AND THE PROVISION FOR THE PAYMENT OF TUITION FEES IN
ANOTHER STATE DOES NOT REMOVE THE DISCRIMINATION.  P. 348. 

(5)  THE OBLIGATION OF THE STATE TO GIVE THE PROTECTION OF EQUAL LAWS
CAN BE PERFORMED ONLY WHERE ITS LAWS OPERATE, THAT IS, WITHIN ITS OWN
JURISDICTION.  IT IS THERE THAT THE EQUALITY OF LEGAL RIGHT MUST BE
MAINTAINED.  THAT OBLIGATION IS IMPOSED BY THE CONSTITUTION UPON THE
STATES SEVERALLY AS GOVERNMENTAL ENTITIES - EACH RESPONSIBLE FOR ITS
OWN LAWS ESTABLISHING THE RIGHTS AND DUTIES OF PERSONS WITHIN ITS
BORDERS.  P. 350. 

(6)  THE FACT THAT THERE IS BUT A LIMITED DEMAND IN MISSOURI FOR THE
LEGAL EDUCATION OF NEGROES DOES NOT EXCUSE THE DISCRIMINATION IN FAVOR
OF WHITES.  P. 350. 

(7)  INASMUCH AS THE DISCRIMINATION MAY LAST INDEFINITELY - SO LONG
AS THE CURATORS FIND IT UNNECESSARY AND IMPRACTICABLE TO PROVIDE
FACILITIES FOR THE LEGAL EDUCATION OF NEGROES WITHIN THE STATE, THE
ALTERNATIVE OF ATTENDANCE AT LAW SCHOOLS IN OTHER STATES BEING PROVIDED
MEANWHILE - IT CAN NOT BE EXCUSED AS A TEMPORARY DISCRIMINATION.  P.
351. 

2.  THE STATE COURT DECIDED THIS CASE UPON THE MERITS OF THE FEDERAL
QUESTION, AND NOT UPON THE PROPRIETY OF REMEDY BY MANDAMUS.  P. 352. 

MISSOURI EX REL. GAINES V. CANADA, REGISTRAR OF THE UNIVERSITY OF
MISSOURI, ET AL. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

CERTIORARI, POST, P. 580, TO REVIEW A JUDGMENT AFFIRMING DENIAL OF A
WRIT OF MANDAMUS. 

THE SUPREME COURT OF MISSOURI HAS HELD THAT THE LAWS OF MISSOURI DO
NOT ENTITLE THE PETITIONER TO BE ADMITTED AS A STUDENT IN THE
UNIVERSITY OF MISSOURI, AND THAT THOSE LAWS PROVIDE FOR THE SEPARATION
OF THE WHITE AND NEGRO RACES FOR THE PURPOSE OF HIGHER EDUCATION.  THE
SECOND PART OF THE DECISION, FULLY RECOGNIZING PETITIONER'S
CONSTITUTIONAL RIGHT TO EQUAL FACILITIES FOR LEGAL EDUCATION, FINDS AS
A FACT THAT THE STATE HAS ACCORDED HIM EQUAL FACILITIES - WHICH FINDING
OF FACT, SUPPORTED AS IT IS BY STRONG AND UNCONTRADICTED EVIDENCE, IS
BINDING UPON THIS COURT.  THE ABSENCE OF A SUBSTANTIAL FEDERAL QUESTION
IS MANIFEST. 

PETITIONER REFUSED TO AVAIL HIMSELF OF THE FACILITIES FOR A LEGAL
EDUCATION PROVIDED BY THE STATE.  IF HE HAD APPLIED TO THE LINCOLN
UNIVERSITY CURATORS FOR A LEGAL EDUCATION, IT IS TO BE PRESUMED THAT
THEY WOULD HAVE GIVEN IT TO HIM IN ACCORDANCE WITH THEIR MANDATORY DUTY
UNDER THE ACT.  HIS REFUSAL TO AVAIL HIMSELF OF HIS LEGAL RIGHTS IS
FATAL TO HIS CASE. 

THE STATE OF MISSOURI HAS NOT DENIED PETITIONER THE EQUAL PROTECTION
OF THE LAWS BY EXCLUDING HIM FROM THE SCHOOL OF LAW OF THE UNIVERSITY
OF MISSOURI. 

SEPARATION OF THE WHITE AND NEGRO RACES FOR PURPOSES OF EDUCATION
DOES NOT INFRINGE THE RIGHTS OF EITHER RACE GUARANTEED BY THE
FOURTEENTH AMENDMENT. 

SOCIAL EQUALITY IS NOT A LEGAL QUESTION AND CAN NOT BE SETTLED BY LAW
OR BY THE JUDGMENTS OF COURTS. 

THE FACILITIES FOR LEGAL EDUCATION AVAILABLE TO PETITIONER UNDER THE
LINCOLN UNIVERSITY ACT (SECS. 9616 TO 9624, R.S. MO., 1929) ARE
SUBSTANTIALLY EQUAL TO THE FACILITIES AFFORDED WHITE STUDENTS IN THE
SCHOOL OF LAW OF THE UNIVERSITY OF MISSOURI. 

IN SEPARATING THE RACES, AND IN DETERMINING THE PARTICULAR FACILITIES
TO BE USED BY THE TWO RACES, THE STATE IS ALLOWED A LARGE MEASURE OF
DISCRETION; AND THE COURTS WILL NOT INTERFERE WITH THE EXERCISE OF THAT
DISCRETION AS UNCONSTITUTIONAL, EXCEPT IN CASE OF A VERY CLEAR AND
UNMISTAKABLE DISREGARD OF RIGHTS SECURED BY THE CONSTITUTION OF THE
UNITED STATES. 

THE LINCOLN UNIVERSITY BOARD OF CURATORS ARE NOT MERELY AUTHORIZED,
BUT ARE REQUIRED, TO REORGANIZE THE INSTITUTION SO THAT IT SHALL AFFORD
OPPORTUNITY TO NEGROES EQUAL TO THAT ACCORDED TO WHITE STUDENTS; AND,
PENDING THE FULL DEVELOPMENT OF LINCOLN UNIVERSITY, ARE REQUIRED, TO
ARRANGE FOR THE ATTENDANCE OF NEGRO RESIDENTS OF THE STATE AT THE
UNIVERSITY OF ANY ADJACENT STATE, TO TAKE ANY COURSE OF STUDY PROVIDED
AT THE UNIVERSITY OF MISSOURI BUT NOT AT LINCOLN UNIVERSITY; AND THEY
ARE NOT MERELY AUTHORIZED, BUT ARE REQUIRED, TO PAY THE REASONABLE
TUITION FEES FOR SUCH ATTENDANCE (SEC. 9622, R.S. MO., 1929).  THE DUTY
TO DO THESE THINGS IS MANDATORY AND PEREMPTORY. 

THE RESPONSIBILITY AND DUTY TO CARRY OUT THIS PLAN HAS BEEN PLACED BY
LAW - NOT UPON THESE RESPONDENTS, THE CURATORS OF THE UNIVERSITY OF
MISSOURI - BUT UPON THE CURATORS OF LINCOLN UNIVERSITY. 

IF PETITIONER PURSUES HIS LEGAL RIGHTS AND MAKES APPLICATION TO THE
LINCOLN UNIVERSITY CURATORS FOR AN EDUCATION IN THE LAW, IT WILL THEN
BECOME THEIR MANDATORY DUTY (A) TO ESTABLISH A SCHOOL OF LAW IN LINCOLN
UNIVERSITY AND TO ADMIT PETITIONER AS A STUDENT THEREIN; AND (B)
PENDING THAT, AND AS A TEMPORARY MATTER, TO ARRANGE FOR THE ATTENDANCE
OF PETITIONER IN ONE OR ANOTHER OF THE SCHOOLS OF LAW ALREADY
ESTABLISHED IN THE UNIVERSITIES OF KANSAS, NEBRASKA, IOWA OR ILLINOIS
(ALL OF WHICH ADMIT NEGROES), AND TO PAY HIS TUITION FEES WHILE HE IS
ATTENDING SUCH SCHOOL. 

SUBSTANTIAL EQUALITY AND NOT IDENTITY OF SCHOOL FACILITIES IS WHAT IS
GUARANTEED BY THE FOURTEENTH AMENDMENT. 

THE FACT THAT IN ORDER TO AVAIL HIMSELF OF LEGAL EDUCATION IN ANY ONE
OF THE FOUR LAW SCHOOLS IN ADJACENT STATES, THE PETITIONER (A GROWN
MAN) WOULD BE PUT TO THE NECESSITY OF TRAVELING FARTHER FROM HIS HOME
IN ST. LOUIS THAN THE DISTANCE FROM ST. LOUIS TO COLUMBIA (WHERE THE
UNIVERSITY OF MISSOURI IS LOCATED), IS A MERE MATTER OF INCONVENIENCE,
WHICH MUST NECESSARILY ARISE AS AN INCIDENT TO ANY CLASSIFICATION OR
ANY SCHOOL SYSTEM; AND THE COURT BELOW HELD THAT THIS FURNISHES NO
SUBSTANTIAL GROUND OF COMPLAINT BY PETITIONER.  PETITIONER'S EXPENSE OF
TRAVEL TO ANY OF THESE ADJACENT STATE UNIVERSITIES WOULD BE NO GREATER
THAN THE TRAVELING EXPENSE OF STUDENTS LIVING IN VARIOUS PARTS OF
MISSOURI, WHO ATTEND THE UNIVERSITY OF MISSOURI AT COLUMBIA. 

THE QUESTION OF THE CONSTITUTIONALITY OF THE PROVISION FOR OUT-OF
STATE INSTRUCTION IS, STRICTLY SPEAKING, NOT PRESENTED FOR REVIEW,
SINCE PETITIONER NEVER MADE ANY APPLICATION TO LINCOLN UNIVERSITY
CURATORS FOR THE ESTABLISHMENT OF A LAW COURSE IN THAT INSTITUTION;
AND, THEREFORE, IT IS IMPOSSIBLE TO KNOW WHETHER THE CURATORS OF
LINCOLN UNIVERSITY, HAD HE KNOCKED AT THE DOOR, WOULD HAVE IMMEDIATELY
ESTABLISHED A LAW COURSE THERE, RENDERING IT UNNECESSARY FOR HIM TO GO
OUT-OF-STATE FOR A LEGAL EDUCATION. 

MANDAMUS AGAINST RESPONDENTS WAS NOT A PROPER REMEDY, BECAUSE
PETITIONER MUST EXHAUST HIS ADMINISTRATIVE REMEDIES BEFORE SEEKING
EXTRAORDINARY RELIEF; AND THIS HE FAILED TO DO.  PETITIONER IS IN NO
POSITION TO APPEAL TO THE COURTS FOR ANY REMEDY, AND CERTAINLY NOT FOR
MANDAMUS, TO COMPEL THE BOARD OF CURATORS OF LINCOLN UNIVERSITY TO
PROVIDE HIM WITH THE OPPORTUNITY FOR LEGAL EDUCATION WHICH HE SAYS HE
DESIRES, BUT WHICH HE HAS NEVER REQUESTED FROM THE AUTHORITIES CHARGED
WITH THE DUTY TO PROVIDE IT FOR HIM.  A FORTIORI, HE COULD NOT APPEAL
TO THE COURTS FOR MANDAMUS TO COMPEL THE BOARD OF CURATORS OF THE
UNIVERSITY OF MISSOURI TO PROVIDE HIM WITH A LEGAL EDUCATION WHICH HE
HAS NOT REQUESTED FROM THE AUTHORITIES CHARGED WITH THE DUTY TO PROVIDE
IT FOR HIM. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PETITIONER LLOYD GAINES, A NEGRO, WAS REFUSED ADMISSION TO THE SCHOOL
OF LAW AT THE STATE UNIVERSITY OF MISSOURI.  ASSERTING THAT THIS
REFUSAL CONSTITUTED A DENIAL BY THE STATE OF THE EQUAL PROTECTION OF
THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION, PETITIONER BROUGHT THIS ACTION FOR MANDAMUS TO COMPEL THE
CURATORS OF THE UNIVERSITY TO ADMIT HIM.  ON FINAL HEARING, AN
ALTERNATIVE WRIT WAS QUASHED AND A PEREMPTORY WRIT WAS DENIED BY THE
CIRCUIT COURT.  THE SUPREME COURT OF THE STATE AFFIRMED THE JUDGMENT. 
113 S.W.2D 783.  WE GRANTED CERTIORARI, OCTOBER 10, 1938. 

PETITIONER IS A CITIZEN OF MISSOURI.  IN AUGUST, 1935, HE WAS
GRADUATED WITH THE DEGREE OF BACHELOR OF ARTS AT THE LINCOLN
UNIVERSITY, AN INSTITUTION MAINTAINED BY THE STATE OF MISSOURI FOR THE
HIGHER EDUCATION OF NEGROES.  THAT UNIVERSITY HAS NO LAW SCHOOL.  UPON
THE FILING OF HIS APPLICATION FOR ADMISSION TO THE LAW SCHOOL OF THE
UNIVERSITY OF MISSOURI, THE REGISTRAR ADVISED HIM TO COMMUNICATE WITH
THE PRESIDENT OF LINCOLN UNIVERSITY AND THE LATTER DIRECTED
PETITIONER'S ATTENTION TO SEC. 9622 OF THE REVISED STATUTES OF MISSOURI
(1929), PROVIDING AS FOLLOWS: 

"SEC. 9622.  MAY ARRANGE FOR ATTENDANCE AT UNIVERSITY OF ANY ADJACENT
STATE - TUITION FEES.  - PENDING THE FULL DEVELOPMENT OF THE LINCOLN
UNIVERSITY, THE BOARD OF CURATORS SHALL HAVE THE AUTHORITY TO ARRANGE
FOR THE ATTENDANCE OF NEGRO RESIDENTS OF THE STATE OF MISSOURI AT THE
UNIVERSITY OF ANY ADJACENT STATE TO TAKE ANY COURSE OR TO STUDY ANY
SUBJECTS PROVIDED FOR AT THE STATE UNIVERSITY OF MISSOURI, AND WHICH
ARE NOT TAUGHT AT THE LINCOLN UNIVERSITY AND TO PAY THE REASONABLE
TUITION FEES FOR SUCH ATTENDANCE; PROVIDED THAT WHENEVER THE BOARD OF
CURATORS DEEM IT ADVISABLE THEY SHALL HAVE THE POWER TO OPEN ANY
NECESSARY SCHOOL OR DEPARTMENT.  (LAWS 1921, P. 86, SEC. 7.)" 

PETITIONER WAS ADVISED TO APPLY TO THE STATE SUPERINTENDENT OF
SCHOOLS FOR AID UNDER THAT STATUTE.  IT WAS ADMITTED ON THE TRIAL THAT
PETITIONER'S "WORK AND CREDITS AT THE LINCOLN UNIVERSITY WOULD QUALIFY
HIM FOR ADMISSION TO THE SCHOOL OF LAW OF THE UNIVERSITY OF MISSOURI IF
HE WERE FOUND OTHERWISE ELIGIBLE."  HE WAS REFUSED ADMISSION UPON THE
GROUND THAT IT WAS "CONTRARY TO THE CONSTITUTION, LAWS AND PUBLIC
POLICY OF THE STATE TO ADMIT A NEGRO AS A STUDENT IN THE UNIVERSITY OF
MISSOURI."  IT APPEARS THAT THERE ARE SCHOOLS OF LAW IN CONNECTION WITH
THE STATE UNIVERSITIES OF FOUR ADJACENT STATES, KANSAS, NEBRASKA, IOWA
AND ILLINOIS, WHERE NONRESIDENT NEGROES ARE ADMITTED. 

THE CLEAR AND DEFINITE CONCLUSIONS OF THE STATE COURT IN CONSTRUING
THE PERTINENT STATE LEGISLATION NARROW THE ISSUE.  THE ACTION OF THE
CURATORS, WHO ARE REPRESENTATIVES OF THE STATE IN THE MANAGEMENT OF THE
STATE UNIVERSITY (R.S. MO., SEC. 9625), MUST BE REGARDED AS STATE
ACTION.  FN1  THE STATE CONSTITUTION PROVIDES THAT SEPARATE FREE PUBLIC
SCHOOLS SHALL BE ESTABLISHED FOR THE EDUCATION OF CHILDREN OF AFRICAN
DESCENT (ART. XI, SEC. 3), AND BY STATUTE SEPARATE HIGH SCHOOL
FACILITIES ARE SUPPLIED FOR COLORED STUDENTS EQUAL TO THOSE PROVIDED
FOR WHITE STUDENTS (R.S. MO., SECS. 9346-9349).  WHILE THERE IS NO
EXPRESS CONSTITUTIONAL PROVISION REQUIRING THAT THE WHITE AND NEGRO
RACES BE SEPARATED FOR THE PURPOSE OF HIGHER EDUCATION, THE STATE COURT
ON A COMPREHENSIVE REVIEW OF THE STATE STATUTES HELD THAT IT WAS
INTENDED TO SEPARATE THE WHITE AND NEGRO RACES FOR THAT PURPOSE ALSO. 
REFERRING IN PARTICULAR TO LINCOLN UNIVERSITY, THE COURT DEEMED IT TO
BE CLEAR "THAT THE LEGISLATURE INTENDED TO BRING THE LINCOLN UNIVERSITY
UP TO THE STANDARD OF THE UNIVERSITY OF MISSOURI, AND GIVE TO THE
WHITES AND NEGROES AN EQUAL OPPORTUNITY FOR HIGHER EDUCATION - THE
WHITES AT THE UNIVERSITY OF MISSOURI, AND THE NEGROES AT LINCOLN
UNIVERSITY."  FURTHER, THE COURT CONCLUDED THAT THE PROVISIONS OF SEC.
9622(ABOVE QUOTED) TO THE EFFECT THAT NEGRO RESIDENTS "MAY ATTEND THE
UNIVERSITY OF ANY ADJACENT STATE WITH THEIR TUITION PAID, PENDING THE
FULL DEVELOPMENT OF LINCOLN UNIVERSITY," MADE IT EVIDENT "THAT THE
LEGISLATURE DID NOT INTEND THAT NEGROES AND WHITES SHOULD ATTEND THE
SAME UNIVERSITY IN THIS STATE."  IN THAT VIEW IT NECESSARILY FOLLOWED
THAT THE CURATORS OF THE UNIVERSITY OF MISSOURI ACTED IN ACCORDANCE
WITH THE POLICY OF THE STATE IN DENYING PETITIONER ADMISSION TO ITS
SCHOOL OF LAW UPON THE SOLE GROUND OF HIS RACE. 

IN ANSWERING PETITIONER'S CONTENTION THAT THIS DISCRIMINATION
CONSTITUTED A DENIAL OF HIS CONSTITUTIONAL RIGHT, THE STATE COURT HAS
FULLY RECOGNIZED THE OBLIGATION OF THE STATE TO PROVIDE NEGROES WITH
ADVANTAGES FOR HIGHER EDUCATION SUBSTANTIALLY EQUAL TO THE ADVANTAGES
AFFORDED TO WHITE STUDENTS.  THE STATE HAS SOUGHT TO FULFILL THAT
OBLIGATION BY FURNISHING EQUAL FACILITIES IN SEPARATE SCHOOLS, A METHOD
THE VALIDITY OF WHICH HAS BEEN SUSTAINED BY OUR DECISIONS.  PLESSY V.
FERGUSON, 163 U.S. 537, 544; MCCABE V. ATCHISON, T. & S.F. RY. CO., 235
U.S. 151, 160; GONG LUM V. RICE, 275 U.S. 78, 85, 86.  COMPARE CUMMING
V. BOARD OF EDUCATION, 175 U.S. 528, 544, 545.  RESPONDENTS' COUNSEL
HAVE APPROPRIATELY EMPHASIZED THE SPECIAL SOLICITUDE OF THE STATE FOR
THE HIGHER EDUCATION OF NEGROES AS SHOWN IN THE ESTABLISHMENT OF
LINCOLN UNIVERSITY, A STATE INSTITUTION WELL CONDUCTED ON A PLANE WITH
THE UNIVERSITY OF MISSOURI SO FAR AS THE OFFERED COURSES ARE
CONCERNED.  IT IS SAID THAT MISSOURI IS A PIONEER IN THAT FIELD AND IS
THE ONLY STATE IN THE UNION WHICH HAS ESTABLISHED A SEPARATE UNIVERSITY
FOR NEGROES ON THE SAME BASIS AS THE STATE UNIVERSITY FOR WHITE
STUDENTS.  BUT, COMMENDABLE AS IS THAT ACTION, THE FACT REMAINS THAT
INSTRUCTION IN LAW FOR NEGROES IS NOT NOW AFFORDED BY THE STATE, EITHER
AT LINCOLN UNIVERSITY OR ELSEWHERE WITHIN THE STATE, AND THAT THE STATE
EXCLUDES NEGROES FROM THE ADVANTAGES OF THE LAW SCHOOL IT HAS
ESTABLISHED AT THE UNIVERSITY OF MISSOURI. 

IT IS MANIFEST THAT THIS DISCRIMINATION, IF NOT RELIEVED BY THE
PROVISIONS WE SHALL PRESENTLY DISCUSS, WOULD CONSTITUTE A DENIAL OF
EQUAL PROTECTION.  THAT WAS THE CONCLUSION OF THE COURT OF APPEALS OF
MARYLAND IN CIRCUMSTANCES SUBSTANTIALLY SIMILAR IN THAT ASPECT. 
UNIVERSITY OF MARYLAND V. MURRAY, 169 MD. 478; 182 A. 590.  IT THERE
APPEARED THAT THE STATE OF MARYLAND HAD "UNDERTAKEN THE FUNCTION OF
EDUCATION IN THE LAW" BUT HAD "OMITTED STUDENTS OF ONE RACE FROM THE
ONLY ADEQUATE PROVISION MADE FOR IT, AND OMITTED THEM SOLELY BECAUSE OF
THEIR COLOR"; THAT IF THOSE STUDENTS WERE TO BE OFFERED "EQUAL
TREATMENT IN THE PERFORMANCE OF THE FUNCTION, THEY MUST, AT PRESENT, BE
ADMITTED TO THE ONE SCHOOL PROVIDED."  ID., P. 489.  A PROVISION FOR
SCHOLARSHIPS TO ENABLE NEGROES TO ATTEND COLLEGES OUTSIDE THE STATE,
MAINLY FOR THE PURPOSE OF PROFESSIONAL STUDIES, WAS FOUND TO BE
INADEQUATE (ID., PP. 485, 486) AND THE QUESTION, "WHETHER WITH AID IN
ANY AMOUNT IT IS SUFFICIENT TO SEND THE NEGROES OUTSIDE THE STATE FOR
LEGAL EDUCATION," THE COURT OF APPEALS FOUND IT UNNECESSARY TO
DISCUSS.  ACCORDINGLY, A WRIT OF MANDAMUS TO ADMIT THE APPLICANT WAS
ISSUED TO THE OFFICERS AND REGENTS OF THE UNIVERSITY OF MARYLAND AS THE
AGENTS OF THE STATE ENTRUSTED WITH THE CONDUCT OF THAT INSTITUTION. 
THE SUPREME COURT OF MISSOURI IN THE INSTANT CASE HAS DISTINGUISHED THE
DECISION IN MARYLAND UPON THE GROUNDS - (1) THAT IN MISSOURI, BUT NOT
IN MARYLAND, THERE IS "A LEGISLATIVE DECLARATION OF A PURPOSE TO
ESTABLISH A LAW SCHOOL FOR NEGROES AT LINCOLN UNIVERSITY WHENEVER
NECESSARY OR PRACTICAL"; AND (2) THAT, "PENDING THE ESTABLISHMENT OF
SUCH A SCHOOL, ADEQUATE PROVISION HAS BEEN MADE FOR THE LEGAL EDUCATION
OF NEGRO STUDENTS IN RECOGNIZED SCHOOLS OUTSIDE OF THIS STATE."  113
S.W.2D, P. 791. 

AS TO THE FIRST GROUND, IT APPEARS THAT THE POLICY OF ESTABLISHING A
LAW SCHOOL AT LINCOLN UNIVERSITY HAS NOT YET RIPENED INTO AN ACTUAL
ESTABLISHMENT, AND IT CANNOT BE SAID THAT A MERE DECLARATION OF
PURPOSE, STILL UNFULFILLED, IS ENOUGH.  THE PROVISION FOR LEGAL
EDUCATION AT LINCOLN IS AT PRESENT ENTIRELY LACKING.  RESPONDENTS'
COUNSEL URGE THAT IF, ON THE DATE WHEN PETITIONER APPLIED FOR ADMISSION
TO THE UNIVERSITY OF MISSOURI, HE HAD INSTEAD APPLIED TO THE CURATORS
OF LINCOLN UNIVERSITY IT WOULD HAVE BEEN THEIR DUTY TO ESTABLISH A LAW
SCHOOL; THAT THIS "AGENCY OF THE STATE," TO WHICH HE SHOULD HAVE
APPLIED, WAS "SPECIFICALLY CHARGED WITH THE MANDATORY DUTY TO FURNISH
HIM WHAT HE SEEKS."  WE DO NOT READ THE OPINION OF THE SUPREME COURT AS
CONSTRUING THE STATE STATUTE TO IMPOSE SUCH A "MANDATORY DUTY" AS THE
ARGUMENT SEEMS TO ASSERT.  THE STATE COURT QUOTED THE LANGUAGE OF SEC.
9618, R.S. MO. 1929, SET FORTH IN THE MARGIN,  FN2 MAKING IT THE
MANDATORY DUTY OF THE BOARD OF CURATORS TO ESTABLISH A LAW SCHOOL IN
LINCOLN UNIVERSITY "WHENEVER NECESSARY AND PRACTICABLE IN THEIR
OPINION."  THIS QUALIFICATION OF THEIR DUTY, EXPLICITLY STATED IN THE
STATUTE, MANIFESTLY LEAVES IT TO THE JUDGMENT OF THE CURATORS TO DECIDE
WHEN IT WILL BE NECESSARY AND PRACTICABLE TO ESTABLISH A LAW SCHOOL,
AND THE STATE COURT SO CONSTRUED THE STATUTE.  EMPHASIZING THE
DISCRETION OF THE CURATORS, THE COURT SAID: 

"THE STATUTE WAS ENACTED IN 1921.  SINCE ITS ENACTMENT NO NEGRO, NOT
EVEN APPELLANT, HAS APPLIED TO LINCOLN UNIVERSITY FOR A LAW EDUCATION. 
THIS FACT DEMONSTRATES THE WISDOM OF THE LEGISLATURE IN LEAVING IT TO
THE JUDGMENT OF THE BOARD OF CURATORS TO DETERMINE WHEN IT WOULD BE
NECESSARY OR PRACTICABLE TO ESTABLISH A LAW SCHOOL FOR NEGROES AT
LINCOLN UNIVERSITY.  PENDING THAT TIME ADEQUATE PROVISION IS MADE FOR
THE LEGAL EDUCATION OF NEGROES IN THE UNIVERSITY OF SOME ADJACENT
STATE, AS HERETOFORE POINTED OUT."  113 S.W.2D P. 791. 

THE STATE COURT HAS NOT HELD THAT IT WOULD HAVE BEEN THE DUTY OF THE
CURATORS TO ESTABLISH A LAW SCHOOL AT LINCOLN UNIVERSITY FOR THE
PETITIONER ON HIS APPLICATION.  THEIR DUTY, AS THE COURT DEFINED IT,
WOULD HAVE BEEN EITHER TO SUPPLY A LAW SCHOOL AT LINCOLN UNIVERSITY AS
PROVIDED IN SEC. 9618 OR TO FURNISH HIM THE OPPORTUNITY TO OBTAIN HIS
LEGAL TRAINING IN ANOTHER STATE AS PROVIDED IN SEC. 9622.  THUS THE LAW
LEFT THE CURATORS FREE TO ADOPT THE LATTER COURSE.  THE STATE COURT HAS
NOT RULED OR INTIMATED THAT THEIR FAILURE OR REFUSAL TO ESTABLISH A LAW
SCHOOL FOR A VERY FEW STUDENTS, STILL LESS FOR ONE STUDENT, WOULD HAVE
BEEN AN ABUSE OF THE DISCRETION WITH WHICH THE CURATORS WERE
ENTRUSTED.  AND, APPARENTLY, IT WAS BECAUSE OF THAT DISCRETION, AND OF
THE POSTPONEMENT WHICH ITS EXERCISE IN ACCORDANCE WITH THE TERMS OF THE
STATUTE WOULD ENTAIL UNTIL NECESSITY AND PRACTICABILITY APPEARED, THAT
THE STATE COURT CONSIDERED AND UPHELD AS ADEQUATE THE PROVISION FOR THE
LEGAL EDUCATION OF NEGROES, WHO WERE CITIZENS OF MISSOURI, IN THE
UNIVERSITIES OF ADJACENT STATES.  WE MAY PUT ON ONE SIDE RESPONDENT'S
CONTENTION THAT THERE WERE FUNDS AVAILABLE AT LINCOLN UNIVERSITY FOR
THE CREATION OF A LAW DEPARTMENT AND THE SUGGESTIONS WITH RESPECT TO
THE NUMBER OF INSTRUCTORS WHO WOULD BE NEEDED FOR THAT PURPOSE AND THE
COST OF SUPPLYING THEM.  THE PRESIDENT OF LINCOLN UNIVERSITY DID NOT
ADVERT TO THE EXISTENCE OR PROSPECTIVE USE OF FUNDS FOR THAT PURPOSE
WHEN HE ADVISED PETITIONER TO APPLY TO THE STATE SUPERINTENDENT OF
SCHOOLS FOR AID UNDER SEC. 9622.  AT BEST, THE EVIDENCE TO WHICH
ARGUMENT AS TO AVAILABLE FUNDS IS ADDRESSED ADMITS OF CONFLICTING
INFERENCES, AND THE DECISION OF THE STATE COURT DID NOT HINGE ON ANY
SUCH MATTER.  IN THE LIGHT OF ITS RULING WE MUST REGARD THE QUESTION
WHETHER THE PROVISION FOR THE LEGAL EDUCATION IN OTHER STATES OF
NEGROES RESIDENT IN MISSOURI IS SUFFICIENT TO SATISFY THE
CONSTITUTIONAL REQUIREMENT OF EQUAL PROTECTION, AS THE PIVOT UPON WHICH
THIS CASE TURNS. 

THE STATE COURT STRESSES THE ADVANTAGES THAT ARE AFFORDED BY THE LAW
SCHOOLS OF THE ADJACENT STATES,  - KANSAS, NEBRASKA, IOWA AND ILLINOIS,
- WHICH ADMIT NON-RESIDENT NEGROES.  THE COURT CONSIDERED THAT THESE
WERE SCHOOLS OF HIGH STANDING WHERE ONE DESIRING TO PRACTICE LAW IN
MISSOURI CAN GET "AS SOUND, COMPREHENSIVE, VALUABLE LEGAL EDUCATION" AS
IN THE UNIVERSITY OF MISSOURI; THAT THE SYSTEM OF EDUCATION IN THE
FORMER IS THE SAME AS THAT IN THE LATTER AND IS DESIGNED TO GIVE THE
STUDENTS A BASIS FOR THE PRACTICE OF LAW IN ANY STATE WHERE THE ANGLO
AMERICAN SYSTEM OF LAW OBTAINS; THAT THE LAW SCHOOL OF THE UNIVERSITY
OF MISSOURI DOES NOT SPECIALIZE IN MISSOURI LAW AND THAT THE COURSE OF
STUDY AND THE CASE BOOKS USED IN THE FIVE SCHOOLS ARE SUBSTANTIALLY
IDENTICAL.  PETITIONER INSISTS THAT FOR ONE INTENDING TO PRACTICE IN
MISSOURI THERE ARE SPECIAL ADVANTAGES IN ATTENDING A LAW SCHOOL THERE,
BOTH IN RELATION TO THE OPPORTUNITIES FOR THE PARTICULAR STUDY OF
MISSOURI LAW AND FOR THE OBSERVATION OF THE LOCAL COURTS,  FN3  AND
ALSO IN VIEW OF THE PRESTIGE OF THE MISSOURI LAW SCHOOL AMONG THE
CITIZENS OF THE STATE, HIS PROSPECTIVE CLIENTS.  PROCEEDING WITH ITS
EXAMINATION OF RELATIVE ADVANTAGES, THE STATE COURT FOUND THAT THE
DIFFERENCE IN DISTANCES TO BE TRAVELED AFFORDED NO SUBSTANTIAL GROUND
OF COMPLAINT AND THAT THERE WAS AN ADEQUATE APPROPRIATION TO MEET THE
FULL TUITION FEES WHICH PETITIONER WOULD HAVE TO PAY. 

WE THINK THAT THESE MATTERS ARE BESIDE THE POINT.  THE BASIC
CONSIDERATION IS NOT AS TO WHAT SORT OF OPPORTUNITIES OTHER STATES
PROVIDE, OR WHETHER THEY ARE AS GOOD AS THOSE IN MISSOURI, BUT AS TO
WHAT OPPORTUNITIES MISSOURI ITSELF FURNISHES TO WHITE STUDENTS AND
DENIES TO NEGROES SOLELY UPON THE GROUND OF COLOR.  THE ADMISSIBILITY
OF LAWS SEPARATING THE RACES IN THE ENJOYMENT OF PRIVILEGES AFFORDED BY
THE STATE RESTS WHOLLY UPON THE EQUALITY OF THE PRIVILEGES WHICH THE
LAWS GIVE TO THE SEPARATED GROUPS WITHIN THE STATE.  THE QUESTION HERE
IS NOT OF A DUTY OF THE STATE TO SUPPLY LEGAL TRAINING, OR OF THE
QUALITY OF THE TRAINING WHICH IT DOES SUPPLY, BUT OF ITS DUTY WHEN IT
PROVIDES SUCH TRAINING TO FURNISH IT TO THE RESIDENTS OF THE STATE UPON
THE BASIS OF AN EQUALITY OF RIGHT.  BY THE OPERATION OF THE LAWS OF
MISSOURI A PRIVILEGE HAS BEEN CREATED FOR WHITE LAW STUDENTS WHICH IS
DENIED TO NEGROES BY REASON OF THEIR RACE.  THE WHITE RESIDENT IS
AFFORDED LEGAL EDUCATION WITHIN THE STATE; THE NEGRO RESIDENT HAVING
THE SAME QUALIFICATIONS IS REFUSED IT THERE AND MUST GO OUTSIDE THE
STATE TO OBTAIN IT.  THAT IS A DENIAL OF THE EQUALITY OF LEGAL RIGHT TO
THE ENJOYMENT OF THE PRIVILEGE WHICH THE STATE HAS SET UP, AND THE
PROVISION FOR THE PAYMENT OF TUITION FEES IN ANOTHER STATE DOES NOT
REMOVE THE DISCRIMINATION. 

THE EQUAL PROTECTION OF THE LAWS IS "A PLEDGE OF THE PROTECTION OF
EQUAL LAWS."  YICK WO V. HOPKINS, 118 U.S. 356, 369.  MANIFESTLY, THE
OBLIGATION OF THE STATE TO GIVE THE PROTECTION OF EQUAL LAWS CAN BE
PERFORMED ONLY WHERE ITS LAWS OPERATE, THAT IS, WITHIN ITS OWN
JURISDICTION.  IT IS THERE THAT THE EQUALITY OF LEGAL RIGHT MUST BE
MAINTAINED.  THAT OBLIGATION IS IMPOSED BY THE CONSTITUTION UPON THE
STATES SEVERALLY AS GOVERNMENTAL ENTITIES,  - EACH RESPONSIBLE FOR ITS
OWN LAWS ESTABLISHING THE RIGHTS AND DUTIES OF PERSONS WITHIN ITS
BORDERS.  IT IS AN OBLIGATION THE BURDEN OF WHICH CANNOT BE CAST BY ONE
STATE UPON ANOTHER, AND NO STATE CAN BE EXCUSED FROM PERFORMANCE BY
WHAT ANOTHER STATE MAY DO OR FAIL TO DO.  THAT SEPARATE RESPONSIBILITY
OF EACH STATE WITHIN ITS OWN SPHERE IS OF THE ESSENCE OF STATEHOOD
MAINTAINED UNDER OUR DUAL SYSTEM.  IT SEEMS TO BE IMPLICIT IN
RESPONDENTS' ARGUMENT THAT IF OTHER STATES DID NOT PROVIDE COURSES FOR
LEGAL EDUCATION, IT WOULD NEVERTHELESS BE THE CONSTITUTIONAL DUTY OF
MISSOURI WHEN IT SUPPLIED SUCH COURSES FOR WHITE STUDENTS TO MAKE
EQUIVALENT PROVISION FOR NEGROES.  BUT THAT PLAIN DUTY WOULD EXIST
BECAUSE IT RESTED UPON THE STATE INDEPENDENTLY OF THE ACTION OF OTHER
STATES.  WE FIND IT IMPOSSIBLE TO CONCLUDE THAT WHAT OTHERWISE WOULD BE
AN UNCONSTITUTIONAL DISCRIMINATION, WITH RESPECT TO THE LEGAL RIGHT TO
THE ENJOYMENT OF OPPORTUNITIES WITHIN THE STATE, CAN BE JUSTIFIED BY
REQUIRING RESORT TO OPPORTUNITIES ELSEWHERE.  THAT RESORT MAY MITIGATE
THE INCONVENIENCE OF THE DISCRIMINATION BUT CANNOT SERVE TO VALIDATE
IT. 

NOR CAN WE REGARD THE FACT THAT THERE IS BUT A LIMITED DEMAND IN
MISSOURI FOR THE LEGAL EDUCATION OF NEGROES AS EXCUSING THE
DISCRIMINATION IN FAVOR OF WHITES.  WE HAD OCCASION TO CONSIDER A
COGNATE QUESTION IN THE CASE OF MCCABE V. ATCHISON, T. & S.F. RY. CO.,
SUPRA.  THERE THE ARGUMENT WAS ADVANCED, IN RELATION TO THE PROVISION
BY A CARRIER OF SLEEPING CARS, DINING AND CHAIR CARS, THAT THE LIMITED
DEMAND BY NEGROES JUSTIFIED THE STATE IN PERMITTING THE FURNISHING OF
SUCH ACCOMMODATIONS EXCLUSIVELY FOR WHITE PERSONS.  WE FOUND THAT
ARGUMENT TO BE WITHOUT MERIT.  IT MADE, WE SAID, THE CONSTITUTIONAL
RIGHT "DEPEND UPON THE NUMBER OF PERSONS WHO MAY BE DISCRIMINATED
AGAINST, WHEREAS THE ESSENCE OF THE CONSTITUTIONAL RIGHT IS THAT IT IS
A PERSONAL ONE.  WHETHER OR NOT PARTICULAR FACILITIES SHALL BE PROVIDED
MAY DOUBTLESS BE CONDITIONED UPON THERE BEING A REASONABLE DEMAND
THEREFOR, BUT, IF FACILITIES ARE PROVIDED, SUBSTANTIAL EQUALITY OF
TREATMENT OF PERSONS TRAVELING UNDER LIKE CONDITIONS CANNOT BE
REFUSED.  IT IS THE INDIVIDUAL WHO IS ENTITLED TO THE EQUAL PROTECTION
OF THE LAWS, AND IF HE IS DENIED BY A COMMON CARRIER, ACTING IN THE
MATTER UNDER THE AUTHORITY OF A STATE LAW, A FACILITY OR CONVENIENCE IN
THE COURSE OF HIS JOURNEY WHICH UNDER SUBSTANTIALLY THE SAME
CIRCUMSTANCES IS FURNISHED TO ANOTHER TRAVELER, HE MAY PROPERLY
COMPLAIN THAT HIS CONSTITUTIONAL PRIVILEGE HAS BEEN INVADED."  ID., PP.
161, 162. 

HERE, PETITIONER'S RIGHT WAS A PERSONAL ONE.  IT WAS AS AN INDIVIDUAL
THAT HE WAS ENTITLED TO THE EQUAL PROTECTION OF THE LAWS, AND THE STATE
WAS BOUND TO FURNISH HIM WITHIN ITS BORDERS FACILITIES FOR LEGAL
EDUCATION SUBSTANTIALLY EQUAL TO THOSE WHICH THE STATE THERE AFFORDED
FOR PERSONS OF THE WHITE RACE, WHETHER OR NOT OTHER NEGROES SOUGHT THE
SAME OPPORTUNITY. 

IT IS URGED, HOWEVER, THAT THE PROVISION FOR TUITION OUTSIDE THE
STATE IS A TEMPORARY ONE,  - THAT IT IS INTENDED TO OPERATE MERELY
PENDING THE ESTABLISHMENT OF A LAW DEPARTMENT FOR NEGROES AT LINCOLN
UNIVERSITY.  WHILE IN THAT SENSE THE DISCRIMINATION MAY BE TERMED
TEMPORARY, IT MAY NEVERTHELESS CONTINUE FOR AN INDEFINITE PERIOD BY
REASON OF THE DISCRETION GIVEN TO THE CURATORS OF LINCOLN UNIVERSITY
AND THE ALTERNATIVE OF ARRANGING FOR TUITION IN OTHER STATES, AS
PERMITTED BY THE STATE LAW AS CONSTRUED BY THE STATE COURT, SO LONG AS
THE CURATORS FIND IT UNNECESSARY AND IMPRACTICABLE TO PROVIDE
FACILITIES FOR THE LEGAL INSTRUCTION OF NEGROES WITHIN THE STATE.  IN
THAT VIEW, WE CANNOT REGARD THE DISCRIMINATION AS EXCUSED BY WHAT IS
CALLED ITS TEMPORARY CHARACTER. 

WE DO NOT FIND THAT THE DECISION OF THE STATE COURT TURNS ON ANY
PROCEDURAL QUESTION.  THE ACTION WAS FOR MANDAMUS, BUT IT DOES NOT
APPEAR THAT THE REMEDY WOULD HAVE BEEN DEEMED INAPPROPRIATE IF THE
ASSERTED FEDERAL RIGHT HAD BEEN SUSTAINED.  IN THAT SITUATION THE
REMEDY BY MANDAMUS WAS FOUND TO BE A PROPER ONE IN UNIVERSITY OF
MARYLAND V. MURRAY, SUPRA.  IN THE INSTANT CASE, THE STATE COURT DID
NOTE THAT PETITIONER HAD NOT APPLIED TO THE MANAGEMENT OF LINCOLN
UNIVERSITY FOR LEGAL TRAINING.  BUT, AS WE HAVE SAID, THE STATE COURT
DID NOT RULE THAT IT WOULD HAVE BEEN THE DUTY OF THE CURATORS TO GRANT
SUCH AN APPLICATION, BUT ON THE CONTRARY TOOK THE VIEW, AS WE
UNDERSTAND IT, THAT THE CURATORS WERE ENTITLED UNDER THE STATE LAW TO
REFUSE SUCH AN APPLICATION AND IN ITS STEAD TO PROVIDE FOR PETITIONER'S
TUITION IN AN ADJACENT STATE.  THAT CONCLUSION PRESENTED THE FEDERAL
QUESTION AS TO THE CONSTITUTIONAL ADEQUACY OF SUCH A PROVISION WHILE
EQUAL OPPORTUNITY FOR LEGAL TRAINING WITHIN THE STATE WAS NOT
FURNISHED, AND THIS FEDERAL QUESTION THE STATE COURT ENTERTAINED AND
PASSED UPON.  WE MUST CONCLUDE THAT IN SO DOING THE COURT DENIED THE
FEDERAL RIGHT WHICH PETITIONER SET UP AND THE QUESTION AS TO THE
CORRECTNESS OF THAT DECISION IS BEFORE US.  WE ARE OF THE OPINION THAT
THE RULING WAS ERROR, AND THAT PETITIONER WAS ENTITLED TO BE ADMITTED
TO THE LAW SCHOOL OF THE STATE UNIVERSITY IN THE ABSENCE OF OTHER AND
PROPER PROVISION FOR HIS LEGAL TRAINING WITHIN THE STATE. 

THE JUDGMENT OF THE SUPREME COURT OF MISSOURI IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

FN1  EX PARTE VIRGINIA, 100 U.S. 339, 346, 347; NEAL V. DELAWARE, 103
U.S. 370, 397; CARTER V. TEXAS, 177 U.S. 442, 447; NORRIS V. ALABAMA,
294 U.S. 587, 589. 

FN2  SECTION 9618, R.S. MO. 1929, IS AS FOLLOWS: 

"SEC. 9618.  BOARD OF CURATORS AUTHORIZED TO REORGANIZE.  - THE BOARD
OF CURATORS OF THE LINCOLN UNIVERSITY SHALL BE AUTHORIZED AND REQUIRED
TO REORGANIZE SAID INSTITUTION SO THAT IT SHALL AFFORD TO THE NEGRO
PEOPLE OF THE STATE OPPORTUNITY FOR TRAINING UP TO THE STANDARD
FURNISHED AT THE STATE UNIVERSITY OF MISSOURI WHENEVER NECESSARY AND
PRACTICABLE IN THEIR OPINION.  TO THIS END THE BOARD OF CURATORS SHALL
BE AUTHORIZED TO PURCHASE NECESSARY ADDITIONAL LAND, ERECT NECESSARY
ADDITIONAL BUILDINGS, TO PROVIDE NECESSARY ADDITIONAL EQUIPMENT, AND TO
LOCATE, IN THE COUNTY OF COLE THE RESPECTIVE UNITS OF THE UNIVERSITY
WHERE, IN THEIR OPINION, THE VARIOUS SCHOOLS WILL MOST EFFECTIVELY
PROMOTE THE PURPOSES OF THIS ARTICLE.  (LAWS OF 1921, P. 86, SEC. 3.)" 
FN3  SEE UNIVERSITY OF MARYLAND V. MURRAY, 169 MD. 478, 486. 

SEPARATE OPINION OF MR. JUSTICE MCREYNOLDS. 

CONSIDERING THE DISCLOSURES OF THE RECORD, THE SUPREME COURT OF
MISSOURI ARRIVED AT A TENABLE CONCLUSION AND ITS JUDGMENT SHOULD BE
AFFIRMED.  THAT COURT WELL UNDERSTOOD THE GRAVE DIFFICULTIES OF THE
SITUATION AND RIGHTLY REFUSED TO UPSET THE SETTLED LEGISLATIVE POLICY
OF THE STATE BY DIRECTING A MANDAMUS.    IN CUMMING V. RICHMOND COUNTY
BOARD OF EDUCATION, 175 U.S. 528, 545, THIS COURT THROUGH MR. JUSTICE
HARLAN DECLARED - "THE EDUCATION OF THE PEOPLE IN SCHOOLS MAINTAINED BY
STATE TAXATION IS A MATTER BELONGING TO THE RESPECTIVE STATES, AND ANY
INTERFERENCE ON THE PART OF FEDERAL AUTHORITY WITH THE MANAGEMENT OF
SUCH SCHOOLS CANNOT BE JUSTIFIED EXCEPT IN THE CASE OF A CLEAR AND
UNMISTAKABLE DISREGARD OF RIGHTS SECURED BY THE SUPREME LAW OF THE
LAND."  GONG LUM V. RICE, 275 U.S. 78, 85 - OPINION BY MR. CHIEF
JUSTICE TAFT - ASSERTS:  "THE RIGHT AND POWER OF THE STATE TO REGULATE
THE METHOD OF PROVIDING FOR THE EDUCATION OF ITS YOUTH AT PUBLIC
EXPENSE IS CLEAR." 

FOR A LONG TIME MISSOURI HAS ACTED UPON THE VIEW THAT THE BEST
INTEREST OF HER PEOPLE DEMANDS SEPARATION OF WHITES AND NEGROES IN
SCHOOLS.  UNDER THE OPINION JUST ANNOUNCED, I PRESUME SHE MAY ABANDON
HER LAW SCHOOL AND THEREBY DISADVANTAGE HER WHITE CITIZENS WITHOUT
IMPROVING PETITIONER'S OPPORTUNITIES FOR LEGAL INSTRUCTION; OR SHE MAY
BREAK DOWN THE SETTLED PRACTICE CONCERNING SEPARATE SCHOOLS AND
THEREBY, AS INDICATED BY EXPERIENCE, DAMNIFY BOTH RACES.  WHETHER BY
SOME OTHER COURSE IT MAY BE POSSIBLE FOR HER TO AVOID CONDEMNATION IS
MATTER FOR CONJECTURE. 

THE STATE HAS OFFERED TO PROVIDE THE NEGRO PETITIONER OPPORTUNITY FOR
STUDY OF THE LAW - IF PERCHANCE THAT IS THE THING REALLY DESIRED - BY
PAYING HIS TUITION AT SOME NEARBY SCHOOL OF GOOD STANDING.  THIS IS FAR
FROM UNMISTAKABLE DISREGARD OF HIS RIGHTS AND IN THE CIRCUMSTANCES IS
ENOUGH TO SATISFY ANY REASONABLE DEMAND FOR SPECIALIZED TRAINING.  IT
APPEARS THAT NEVER BEFORE HAS A NEGRO APPLIED FOR ADMISSION TO THE LAW
SCHOOL AND NONE HAS EVER ASKED THAT LINCOLN UNIVERSITY PROVIDE LEGAL
INSTRUCTION. 

THE PROBLEM PRESENTED OBVIOUSLY IS A DIFFICULT AND HIGHLY PRACTICAL
ONE.  A FAIR EFFORT TO SOLVE IT HAS BEEN MADE BY OFFERING ADEQUATE
OPPORTUNITY FOR STUDY WHEN SOUGHT IN GOOD FAITH.  THE STATE SHOULD NOT
BE UNDULY HAMPERED THROUGH THEORIZATION INADEQUATELY RESTRAINED BY
EXPERIENCE. 

THIS PROCEEDING COMMENCED IN APRIL, 1936.  PETITIONER THEN TWENTY
FOUR YEARS OLD ASKED MANDAMUS TO COMPEL HIS ADMISSION TO THE UNIVERSITY
IN SEPTEMBER, 1936, NOTWITHSTANDING PLAIN LEGISLATIVE INHIBITION. 
MANDAMUS IS NOT A WRIT OF RIGHT BUT IS GRANTED ONLY IN THE COURT'S
DISCRETION UPON CONSIDERATION OF ALL THE CIRCUMSTANCES.  DUNCAN
TOWNSITE CO. V. LANE, 245 U.S. 308, 311; UNITED STATES EX REL. ARANT V.
LANE, 249 U.S. 367, 371. 

THE SUPREME COURT OF MISSOURI DID NOT CONSIDER THE PROPRIETY OF
GRANTING THE WRIT UNDER THE THEORY OF THE LAW NOW ACCEPTED HERE.  THAT,
OF COURSE, WILL BE MATTER OPEN FOR ITS CONSIDERATION UPON RETURN OF THE
CAUSE. 

MR. JUSTICE BUTLER CONCURS IN THE ABOVE VIEWS. 
..END :










EX PARTE CENTURY CO., 305 U.S. 354 


NO. - , ORIGINAL.  DECIDED DECEMBER 12, 1938.  - RULE DISCHARGED. 


1.  UPON A RULE TO SHOW CAUSE WHY A WRIT OF MANDAMUS SHOULD NOT ISSUE
REQUIRING JUDGES OF THE CIRCUIT COURT OF APPEALS TO CONSIDER CERTAIN
ASSIGNMENTS OF ERROR WHICH THAT COURT HAD DECLINED TO CONSIDER UPON A
GROUND WHICH THIS COURT, UPON REVIEW, ADJUDGED INSUFFICIENT, IT IS AN
ANSWER THAT ANOTHER AND SUFFICIENT GROUND FOR REJECTING THE ASSIGNMENTS
IS REVEALED BY THE RECORD.  P. 355. 

2.  PAPERS PURPORTING TO BE PROPOSED FINDINGS OF FACT AND CONCLUSIONS
OF LAW, WHICH ARE CONTAINED IN THE TRANSCRIPT BUT NOT IN THE BILL OF
EXCEPTIONS, ARE NOT PROPERLY AUTHENTICATED.  P. 356. 

EX PARTE CENTURY INDEMNITY CO. 

PER CURIAM. 

ON AN APPEAL FROM A JUDGMENT FOR THE PLAINTIFF IN AN ACTION AT LAW,
IN WHICH A JURY WAS WAIVED, THE CIRCUIT COURT OF APPEALS REFUSED TO
CONSIDER CERTAIN ASSIGNMENTS OF ERROR UPON THE GROUND THAT THEY RELATED
TO FINDINGS REQUESTED BY THE DEFENDANT AFTER THE TRIAL HAD BEEN
CONCLUDED.  THE JUDGMENT WAS AFFIRMED, 90 F.2D 644, AND CERTIORARI WAS
GRANTED.  WE WERE UNABLE TO ACCEPT THE CONCLUSION OF THE CIRCUIT COURT
OF APPEALS THAT WHEN THE TRIAL COURT ORDERED "THAT JUDGMENT BE ENTERED
FOR PLAINTIFF, WITH INTEREST AND COSTS, UPON FINDINGS OF FACT AND
CONCLUSIONS OF LAW TO BE PRESENTED," IT WAS THEREAFTER "TOO LATE
ADEQUATELY TO PRESENT SPECIAL FINDINGS OF FACT."  IT WAS NOT NECESSARY
TO TREAT THE FIRST ORDER FOR JUDGMENT AS ENDING "THE PROGRESS OF THE
TRIAL."  28 U.S.C. 875.  THE QUALIFYING WORDS IN THE ORDER WERE
APPROPRIATE TO SUGGEST A "RESERVATION OF OPPORTUNITY FOR FURTHER
ACTION."  ACCORDINGLY, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS WAS
REVERSED AND THE CAUSE WAS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THE OPINION OF THIS COURT.  CENTURY
INDEMNITY CO. V. NELSON, 303 U.S. 213. 

ON THE LATER HEARING, THE CIRCUIT COURT OF APPEALS FOUND ANOTHER
GROUND FOR ITS ACTION,  - A GROUND NOT DEALT WITH IN ITS FORMER RULING
AND NOT PRESENTED BY THE PETITION FOR CERTIORARI.  THAT WAS THAT
DEFENDANT'S PROPOSED FINDINGS WERE "NOT INCORPORATED IN THE BILL OF
EXCEPTIONS, EITHER DIRECTLY OR BY REFERENCE."  THE CIRCUIT COURT OF
APPEALS REFUSED TO CONSIDER THE ASSIGNMENTS OF ERROR ADDRESSED TO THE
REJECTION OF THESE FINDINGS AND AGAIN AFFIRMED THE JUDGMENT.  96 F.2D
679. 

ON APPLICATION OF THE DEFENDANT, THIS COURT ISSUED A RULE DIRECTING
THE JUDGES OF THE CIRCUIT COURT OF APPEALS TO SHOW CAUSE WHY THE
JUDGMENT SHOULD NOT BE VACATED AND THE COURT BE REQUIRED TO CONSIDER
THE ASSIGNMENTS OF ERROR.  THE JUDGES HAVE MADE RETURN TO THE RULE. 

WHILE IT APPEARS FROM THE BILL OF EXCEPTIONS THAT THE DEFENDANT
"SERVED AND LODGED ITS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW," AND THE TRANSCRIPT CONTAINS A PAPER DESCRIBED AS DEFENDANT'S
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW, THAT PAPER IS NOT
INCLUDED IN THE BILL OF EXCEPTIONS AND HENCE IS NOT PROPERLY
AUTHENTICATED.  28 U.S.C. 875.  INSURANCE COMPANY V. FOLSOM, 18 WALL. 
237, 249; MCLEOD V. UNITED STATES, 67 F.2D 740. 

IN VIEW OF THAT DEFECT, WE CANNOT DIRECT THE CIRCUIT COURT OF APPEALS
TO CONSIDER THE ASSIGNMENTS OF ERROR AND THE RULE TO SHOW CAUSE MUST BE
DISCHARGED.  RULE DISCHARGED. 
..END :











SHIELDS V. UTAH IDAHO R. CO., 305 U.S. 177 


NO. 28.  ARGUED OCTOBER 19, 1938.  - DECIDED DECEMBER 5, 1938.  - 95
F.2D 911, REVERSED. 


1.  CONGRESS, HAVING POWER TO SUBJECT INTERSTATE RAILWAYS TO THE
REQUIREMENTS OF THE RAILWAY LABOR ACT RELATING TO LABOR RELATIONS, WAS
EMPOWERED ALSO TO EXCEPT INTERURBAN ELECTRIC RAILWAYS NOT OPERATING AS
PART OF A GENERAL STEAM-RAILROAD SYSTEM, AND TO CONFIDE THE QUESTION OF
FACT WHETHER A PARTICULAR RAILROAD FALLS WITHIN THE EXCEPTED CATEGORY
TO DETERMINATION, AFTER HEARING AND UPON EVIDENCE, BY THE INTERSTATE
COMMERCE COMMISSION.  P. 170. 

2.  THE CONFERRING OF AUTHORITY, BY THE RAILWAY LABOR ACT, UPON THE
INTERSTATE COMMERCE COMMISSION TO DETERMINE WHETHER A PARTICULAR
ELECTRIC RAILWAY IS AN INTERURBAN ONE IS NOT AN UNCONSTITUTIONAL
DELEGATION OF POWER.  P. 181. 

3.  UNDER SEC. 1 OF THE RAILWAY LABOR ACT, IT IS THE FUNCTION OF THE
INTERSTATE COMMERCE COMMISSION TO DETERMINE AS MATTERS OF FACT, NOT
ONLY WHETHER AN ELECTRIC RAILWAY LINE IS OPERATED AS PART OF A GENERAL
STEAM-RAILROAD SYSTEM OF TRANSPORTATION, BUT ALSO WHETHER IT IS AN
"INTERURBAN" LINE.  P. 181. 

4.  THE PURPOSE OF THE ACT IN REQUIRING A HEARING ON THESE MATTERS BY
THE COMMISSION - A HEARING OF EVIDENCE AND ARGUMENT - , IS TO COMPLY
WITH THE REQUIREMENTS OF DUE PROCESS.  P. 182. 

5.  THE COMMISSION'S DETERMINATION, MADE AT THE REQUEST OF THE
MEDIATION BOARD, IS BINDING ON THE BOARD AND ON THE CARRIER.  P. 182. 

6.  A DETERMINATION OF THE INTERSTATE COMMERCE COMMISSION, UNDER THE
RAILWAY LABOR ACT, THAT AN ELECTRIC LINE IS NOT "INTERURBAN," THOUGH
NOT IN ITSELF AN "ORDER," SHANNAHAN V. UNITED STATES, 303 U.S. 596,
SUBJECTS THE CARRIER TO REGULATION BY THE MEDIATION BOARD AND TO
CRIMINAL PUNISHMENT IF ITS ORDERS ARE DISOBEYED, AND ITS VALIDITY IS
SUBJECT TO JUDICIAL REVIEW IN A SUIT IN EQUITY BROUGHT BY THE CARRIER
AGAINST THE UNITED STATES ATTORNEY TO RESTRAIN PROSECUTIONS.  P. 182. 

7.  UPON REVIEW OF SUCH DETERMINATION OF THE INTERSTATE COMMERCE
COMMISSION THE QUESTION IS WHETHER THE COMMISSION ACTED WITHIN ITS
STATUTORY AUTHORITY; AND, WHERE THE REQUIREMENT AS TO HEARING WAS
SATISFIED, THE SOLE REMAINING QUESTION WOULD BE WHETHER THE COMMISSION
IN ARRIVING AT ITS DETERMINATION DEPARTED FROM THE APPLICABLE RULES OF
LAW AND WHETHER ITS FINDING HAD A BASIS IN SUBSTANTIAL EVIDENCE OR WAS
ARBITRARY AND CAPRICIOUS.  P. 184. 

8.  IN THIS CASE, THE DETERMINATION OF THE COMMISSION THAT
COMPLAINANT WAS NOT AN "INTERURBAN" ELECTRIC LINE FINDS SUPPORT IN
EVIDENCE BEFORE THE COMMISSION, AND WAS NOT ARBITRARY OR CAPRICIOUS;
NOR DID IT DEPART FROM APPLICABLE PRINCIPLES OF LAW.  P. 185. 

SHIELDS ET AL. V. UTAH IDAHO CENTRAL RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 304 U.S. 556, TO REVIEW THE AFFIRMANCE OF A DECREE
PERMANENTLY ENJOINING A UNITED STATES ATTORNEY FROM INSTITUTING
PROSECUTIONS UNDER THE RAILWAY LABOR ACT.  THE INTERSTATE COMMERCE
COMMISSION INTERVENED AS A PARTY DEFENDANT.  FOR THE OPINION OF THE
COMMISSION, SEE 214 I.C.C. 707. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTIONS OF THE EFFECT OF A DETERMINATION BY
THE INTERSTATE COMMERCE COMMISSION, FOR THE PURPOSES OF THE RAILWAY
LABOR ACT, THAT THE RESPONDENT IS NOT AN INTERURBAN ELECTRIC RAILWAY,
AND OF THE SCOPE OF JUDICIAL REVIEW OF THAT DETERMINATION. 

THE RAILWAY LABOR ACT, WHICH APPLIES TO RAILROADS ENGAGED IN
INTERSTATE COMMERCE, EXCEPTS ANY "INTERURBAN" ELECTRIC RAILWAY UNLESS
IT IS OPERATING AS A PART OF A GENERAL STEAM-RAILROAD SYSTEM OF
TRANSPORTATION.  FN1  THE INTERSTATE COMMERCE COMMISSION IS "AUTHORIZED
AND DIRECTED UPON REQUEST OF THE MEDIATION BOARD OR UPON COMPLAINT OF
ANY PARTY INTERESTED TO DETERMINE AFTER HEARING WHETHER ANY LINE
OPERATED BY ELECTRIC POWER" FALLS WITHIN THE EXCEPTION.  AT THE REQUEST
OF THE MEDIATION BOARD, THE INTERSTATE COMMERCE COMMISSION AFTER
HEARING DETERMINED THAT THE LINES OF RESPONDENT, THE UTAH IDAHO CENTRAL
RAILROAD COMPANY, DO NOT CONSTITUTE AN INTERURBAN ELECTRIC RAILWAY. 
214 I.C.C. 707.  THE MEDIATION BOARD ORDERED RESPONDENT TO POST THE
FORMAL NOTICE PRESCRIBED BY SEC. 2, EIGHTH, OF THE RAILWAY LABOR ACT. 
FN2  RESPONDENT DID NOT COMPLY.  FAILURE TO PUBLISH THE NOTICE SUBJECTS
"THE CARRIER, OFFICER OR AGENT OFFENDING" TO CRIMINAL PENALTIES.  FN3
RESPONDENT, INSISTING THAT ITS LINE IS AN INTERURBAN ELECTRIC RAILWAY
AND THUS EXCEPTED FROM THE RAILWAY LABOR ACT, AND ALLEGING THE
INVALIDITY OF THE ACT, BROUGHT THIS SUIT AGAINST THE UNITED STATES
ATTORNEY FOR THE DISTRICT OF UTAH TO RESTRAIN HIM FROM PROSECUTING ANY
PROCEEDING BASED UPON AN ALLEGED VIOLATION OF THE ACT. 

THE DISTRICT COURT TOOK JURISDICTION, PERMITTED RESPONDENT TO TRY THE
QUESTION DE NOVO, DECIDED THAT RESPONDENT WAS AN INTERURBAN ELECTRIC
RAILWAY, AND GRANTED A PERMANENT INJUNCTION.  THE CIRCUIT COURT OF
APPEALS AFFIRMED.  95 F.2D 911.  WE GRANTED CERTIORARI. 

AS RESPONDENT, HOWEVER CHARACTERIZED, IS ENGAGED IN INTERSTATE
TRANSPORTATION, THE QUESTION WHETHER IT SHOULD BE SUBJECTED TO THE
REQUIREMENTS OF THE RAILWAY LABOR ACT RELATING TO THE ADJUSTMENT OF
LABOR DISPUTES, WAS ONE FOR THE DECISION OF CONGRESS.  THESE
REQUIREMENTS WERE PRESCRIBED IN THE EXERCISE BY CONGRESS OF ITS
CONSTITUTIONAL CONTROL OVER INTERSTATE COMMERCE.  TEXAS & NEW ORLEANS
R. CO. V. RAILWAY CLERKS, 281 U.S. 548; VIRGINIAN RAILWAY CO. V. SYSTEM
FEDERATION NO. 40, 300 U.S. 515.  AS CONGRESS WAS FREE TO ESTABLISH THE
CATEGORIES WHICH SHOULD BE EXCEPTED, CONGRESS COULD BRING TO ITS AID AN
ADMINISTRATIVE AGENCY TO DETERMINE THE QUESTION OF FACT WHETHER A
PARTICULAR RAILROAD FELL WITHIN THE EXCEPTION, AND CONGRESS COULD MAKE
THAT FACTUAL DETERMINATION, AFTER HEARING AND UPON EVIDENCE,
CONCLUSIVE.  ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38,
51.  FOR THAT PURPOSE CONGRESS COULD CREATE A NEW ADMINISTRATIVE AGENCY
OR USE ONE ALREADY EXISTING.  AND AS THE QUESTIONS OF FACT INVOLVED
WOULD RELATE TO METHODS OF RAILROAD TRANSPORTATION, AND THUS TO A FIELD
IN WHICH THE INTERSTATE COMMERCE COMMISSION HAD PECULIAR EXPERTNESS,
CONGRESS COULD FITTINGLY COMMIT THE DETERMINATION TO THAT BODY. 

CONGRESS DID NOT DEFINE THE TERM "INTERURBAN."  DESPITE THE
DESIRABILITY OF SUCH A DEFINITION FN4  AND THE DIFFICULTIES OCCASIONED
BY ITS ABSENCE, THE TERM IS NOT SO DESTITUTE OF MEANING THAT IT CAN BE
DENIED EFFECT AS A VALID DESCRIPTION.  RESPONDENT, STANDING UPON THE
EXCEPTION, NECESSARILY TREATS IT AS VALID AND HENCE AS SUSCEPTIBLE OF
APPLICATION.  THAT VIEW PRESUPPOSES THAT THE TERM "INTERURBAN" DENOTES
DISTINGUISHING FACTUAL CHARACTERISTICS WHICH ON APPROPRIATE INQUIRY MAY
BE ASCERTAINED.  WE HAVE SO TREATED THE TERM IN OTHER RELATIONS. 
PIEDMONT & NORTHERN RY. CO. V. INTERSTATE COMMERCE COMM'N, 286 U.S.
299; UNITED STATES V. CHICAGO NORTH SHORE & M.R. CO., 288 U.S. 1.  THE
CONFERRING OF AUTHORITY UPON THE INTERSTATE COMMERCE COMMISSION TO
DETERMINE WHETHER A PARTICULAR ELECTRIC RAILWAY IS AN INTERURBAN ONE
CANNOT BE REGARDED AS AN UNCONSTITUTIONAL DELEGATION OF POWER.  SEE
UNITED STATES V. CHICAGO NORTH SHORE & M.R. CO., SUPRA, AT PP. 13, 14. 

IN THE INSTANT CASE, THE INTERSTATE COMMERCE COMMISSION HAS MADE THE
DETERMINATION CONTEMPLATED BY THE STATUTE AND WE ARE NOT CONCERNED WITH
THE QUESTIONS WHICH MIGHT ARISE IN ITS ABSENCE.  THE COMMISSION'S
DETERMINATION WAS ONE OF FACT.  SHANNAHAN V. UNITED STATES, 303 U.S.
596, 599.  WHAT EFFECT SHALL BE ASCRIBED TO IT?  THE ARGUMENT IS
PRESSED THAT THE DETERMINATION IS AT BEST PERSUASIVE AND NOT IN ANY
WISE BINDING UPON THE COURTS.  IT IS URGED THAT THE COMMISSION WAS
RESTRICTED TO DETERMINING WHETHER RESPONDENT WAS OPERATED AS A PART OF
A GENERAL STEAM-RAILROAD SYSTEM OF TRANSPORTATION, WHICH CONCEDEDLY IT
WAS NOT; THAT THE DETERMINATION OF THE COMMISSION WAS NOT AN "ORDER";
THAT CONGRESS HAS NOT MANIFESTED AN INTENTION THAT THE DETERMINATION
SHOULD BE BINDING IN JUDICIAL PROCEEDINGS AND THAT IN THE NATURE OF
THINGS IT COULD NOT BE MADE BINDING IN CRIMINAL PROSECUTIONS. 

WE ARE UNABLE TO AGREE WITH THE VIEW EXPRESSED IN THE COURT BELOW
THAT THE COMMISSION WAS CONFINED TO DETERMINING WHETHER RESPONDENT WAS
OPERATED AS A PART OF A GENERAL STEAM-RAILROAD SYSTEM OF
TRANSPORTATION.  BEFORE REACHING THAT POINT - AS TO WHICH THERE WAS NO
QUESTION - THE COMMISSION HAD TO DETERMINE WHETHER RESPONDENT WAS AN
"INTERURBAN" LINE.  THAT HAS BEEN THE ADMINISTRATIVE CONSTRUCTION OF
THE STATUTORY PROVISION  FN5  AND WE SEE NO REASON TO DOUBT ITS
CORRECTNESS. 

IN CONSIDERING THE EFFECT OF THE COMMISSION'S DETERMINATION, THE
FUNDAMENTAL QUESTION IS THE INTENT OF CONGRESS.  THE LANGUAGE OF THE
PROVISION POINTS TO DEFINITIVE ACTION.  THE COMMISSION IS TO
"DETERMINE."  THE COMMISSION MUST DETERMINE "AFTER HEARING."  THE
REQUIREMENT OF A "HEARING" HAS OBVIOUS REFERENCE "TO THE TRADITION OF
JUDICIAL PROCEEDINGS IN WHICH EVIDENCE IS RECEIVED AND WEIGHED BY THE
TRIER OF THE FACTS."  THE "HEARING" IS "THE HEARING OF EVIDENCE AND
ARGUMENT."  MORGAN V. UNITED STATES, 298 U.S. 468, 480.  AND THE
MANIFEST PURPOSE IN REQUIRING A HEARING IS TO COMPLY WITH THE
REQUIREMENTS OF DUE PROCESS UPON WHICH THE PARTIES AFFECTED BY THE
DETERMINATION OF AN ADMINISTRATIVE BODY ARE ENTITLED TO INSIST. 
INTERSTATE COMMERCE COMM'N V. LOUISVILLE & NASHVILLE R. CO., 227 U.S.
88, 91.  THE COMMISSION IS NOT ONLY AUTHORIZED BUT "DIRECTED" TO GIVE
THE HEARING AND MAKE THE DETERMINATION WHEN REQUESTED.  WE CANNOT THINK
THAT A DETERMINATION SO PRESCRIBED AND SAFEGUARDED WAS INTENDED TO HAVE
NO LEGAL EFFECT.  ON THE CONTRARY, IN VIEW OF THE NATURE AND PURPOSE OF
THE PROCEEDING, WE MUST REGARD THE DETERMINATION AS BINDING ON BOTH THE
CARRIER AND THE MEDIATION BOARD.  THE LATTER HAVING OBTAINED THE
DETERMINATION COULD NOT IGNORE IT; NEITHER COULD THE CARRIER. 

WE HAVE HELD THAT THE DETERMINATION OF THE COMMISSION IS NOT AN
"ORDER" REVIEWABLE UNDER THE URGENT DEFICIENCIES ACT OF OCTOBER 22,
1913.  FN6  SHANNAHAN V. UNITED STATES, SUPRA.  BUT WE HAVE NOT HELD
THAT THE DETERMINATION OF THE COMMISSION WAS NOT SUBJECT TO JUDICIAL
REVIEW BY OTHER PROCEDURE, A QUESTION WHICH, AS WE SAID IN THE
SHANNAHAN CASE, WE HAD NO OCCASION THERE TO CONSIDER.  ID., AT P. 603. 
THE NATURE OF THE DETERMINATION POINTS TO THE PROPRIETY OF JUDICIAL
REVIEW.  FOR, WHILE THE DETERMINATION IS MADE BY THE INTERSTATE
COMMERCE COMMISSION FOR THE PURPOSES OF THE RAILWAY LABOR ACT AND NOT
FOR FURTHER PROCEEDINGS BY THE COMMISSION ITSELF, IT IS NONE THE LESS A
PART OF A REGULATORY SCHEME.  IT HAS THE EFFECT, IF VALIDLY MADE, OF
SUBJECTING THE RESPONDENT TO THE REQUIREMENTS OF THE RAILWAY LABOR ACT,
WHICH WAS ENACTED TO REGULATE THE ACTIVITIES OF TRANSPORTATION
COMPANIES ENGAGED IN INTERSTATE COMMERCE.  FN7  THE MEDIATION BOARD HAS
ORDERED THE POSTING OF THE PRESCRIBED NOTICE THAT DISPUTES BETWEEN THE
CARRIER AND ITS EMPLOYEES WILL BE HANDLED UNDER THE RAILWAY LABOR ACT. 
DISOBEDIENCE IS IMMEDIATELY PUNISHABLE AND IT IS MADE THE DUTY OF THE
UNITED STATES ATTORNEY TO INSTITUTE PROCEEDINGS AGAINST VIOLATORS. 
RESPONDENT HAS INVOKED THE EQUITY JURISDICTION TO RESTRAIN SUCH
PROSECUTION AND THE GOVERNMENT DOES NOT CHALLENGE THE PROPRIETY OF THAT
PROCEDURE.  EQUITY JURISDICTION MAY BE INVOKED WHEN IT IS ESSENTIAL TO
THE PROTECTION OF THE RIGHTS ASSERTED, EVEN THOUGH THE COMPLAINANT
SEEKS TO ENJOIN THE BRINGING OF CRIMINAL ACTIONS.  PHILADELPHIA COMPANY
V. STIMSON, 223 U.S. 605, 621, 622; TRUAX V. RAICH, 239 U.S. 33, 37,
38; TERRACE V. THOMPSON, 263 U.S. 197, 214.  TO SUPPORT ITS CONTENTION
THAT EQUITABLE RELIEF IS APPROPRIATE, RESPONDENT POINTS TO THE PECULIAR
DIFFICULTIES WHICH CONFRONT IT UNDER THE CONGRESSIONAL LEGISLATION. 
CONGRESS HAS ENACTED TWO SETS OF STATUTES WHICH INVOLVE THE APPLICATION
OF THE SAME CRITERION.  IF RESPONDENT IS SUBJECT TO THE RAILWAY LABOR
ACT, IT IS EXCLUDED FROM THE APPLICATION OF THE NATIONAL LABOR
RELATIONS ACT; FN8  OTHERWISE NOT.  THE RAILROAD RETIREMENT ACT OF 1937
FN9  HAS A LIKE PROVISO EXCEPTING INTERURBAN ELECTRIC RAILWAYS AND
AUTHORIZING THE INTERSTATE COMMERCE COMMISSION TO DETERMINE WHETHER A
PARTICULAR ELECTRIC RAILWAY FALLS WITHIN THE EXCEPTION.  A SIMILAR
PROVISION IS FOUND IN THE CARRIERS TAXING ACT OF 1937  FN10  AND IN THE
RAILROAD UNEMPLOYMENT INSURANCE ACT OF 1938.  FN11  IN THESE
CIRCUMSTANCES WE THINK RESPONDENT WAS ENTITLED TO RESORT TO EQUITY IN
ORDER TO OBTAIN A JUDICIAL REVIEW OF THE QUESTIONS OF THE VALIDITY AND
EFFECT OF THE COMMISSION'S DETERMINATION PURPORTING TO FIX ITS STATUS. 

WHAT IS THE SCOPE OF THE JUDICIAL REVIEW TO WHICH RESPONDENT IS
ENTITLED?  AS CONGRESS HAD CONSTITUTIONAL AUTHORITY TO ENACT THE
REQUIREMENTS OF THE RAILWAY LABOR ACT LOOKING TO THE SETTLEMENT OF
INDUSTRIAL DISPUTES BETWEEN CARRIERS ENGAGED IN INTERSTATE COMMERCE AND
THEIR EMPLOYEES,  FN12  AND COULD INCLUDE OR EXCEPT INTERURBAN CARRIERS
AS IT SAW FIT, NO CONSTITUTIONAL QUESTION IS PRESENTED CALLING FOR THE
APPLICATION OF OUR DECISIONS  FN13  WITH RESPECT TO A TRIAL DE NOVO SO
FAR AS THE CHARACTER OF THE RESPONDENT IS CONCERNED.  WITH RESPECT TO
THAT QUESTION, UNLIKE THE CASE PRESENTED IN UNITED STATES V. IDAHO, 298
U.S. 105, WHERE THE INTERSTATE COMMERCE COMMISSION WAS DENIED THE
AUTHORITY TO DETERMINE THE CHARACTER OF THE TRACKAGE IN QUESTION (ID.,
P. 107), THE COMMISSION IN THIS INSTANCE WAS EXPRESSLY DIRECTED TO MAKE
THE DETERMINATION.  AS THIS AUTHORITY WAS VALIDLY CONFERRED UPON THE
COMMISSION N14, THE QUESTION ON JUDICIAL REVIEW WOULD BE SIMPLY WHETHER
THE COMMISSION HAD ACTED WITHIN ITS AUTHORITY.  INTERSTATE COMMERCE
COMM'N V. UNION PACIFIC R. CO., 222 U.S. 541, 547; INTERSTATE COMMERCE
COMM'N V. LOUISVILLE & NASHVILLE R. CO., 227 U.S. 88, 91; VIRGINIAN
RAILWAY CO. V. UNITED STATES, 272 U.S. 658, 663; TAGG BROS. & MOORHEAD
V. UNITED STATES, 280 U.S. 420, 444; FLORIDA V. UNITED STATES, 292 U.S.
1, 12; ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, SUPRA. 

THE CONDITION WHICH CONGRESS IMPOSED WAS THAT THE COMMISSION SHOULD
MAKE ITS DETERMINATION AFTER HEARING.  THERE IS NO QUESTION THAT THE
COMMISSION DID GIVE A HEARING.  RESPONDENT APPEARED AND THE EVIDENCE
WHICH IT OFFERED WAS RECEIVED AND CONSIDERED.  THE SOLE REMAINING
QUESTION WOULD BE WHETHER THE COMMISSION IN ARRIVING AT ITS
DETERMINATION DEPARTED FROM THE APPLICABLE RULES OF LAW AND WHETHER ITS
FINDING HAD A BASIS IN SUBSTANTIAL EVIDENCE OR WAS ARBITRARY AND
CAPRICIOUS.  ID. THAT QUESTION MUST BE DETERMINED UPON THE EVIDENCE
PRODUCED BEFORE THE COMMISSION. 

TAKING THAT POSITION, PETITIONERS UNSUCCESSFULLY OBJECTED IN THE
DISTRICT COURT TO THE ADMISSION OF NEW EVIDENCE.  BUT THAT EVIDENCE WAS
SUBSTANTIALLY THE SAME AS THAT PRODUCED BEFORE THE COMMISSION, WHICH
WAS ALSO RECEIVED.  THE FACTS CAREFULLY ANALYZED BY THE COMMISSION (214
I.C.C. PP. 709-711) ARE VIRTUALLY UNDISPUTED.  RESPONDENT'S RAILWAY
EXTENDS FROM OGDEN, UTAH, NORTH TO PRESTON, IDAHO, A DISTANCE OF 94.63
MILES AND HAS TWO BRANCH LINES OF ABOUT 7 AND 14 MILES RESPECTIVELY. 
ABOUT 81.8 PER CENT. OF THE LINE IS LOCATED ON PRIVATELY OWNED RIGHT-OF
WAY AND THE REMAINING 18.2 PER CENT. ON PUBLIC STREETS OR HIGHWAYS,
THESE BEING CHIEFLY IN FIFTEEN CITIES AND TOWNS.  THE GOVERNMENT
CONCEDES THE POINT STRESSED BY RESPONDENT THAT ITS LINE HAS MANY OF THE
PHYSICAL CHARACTERISTICS OF AN INTERURBAN RAILROAD.  THUS ITS TRACKS ON
THE WHOLE ARE OF LIGHTER WEIGHT, ITS GRADES SLIGHTLY STEEPER, ITS
CURVES SHARPER, ITS STATIONS AND SIDETRACKS MORE FREQUENT, ITS MOTIVE
POWER OF LESS CAPACITY, ITS SIDETRACKS SHORTER THAN IS CUSTOMARY ON
TRUNK LINES, AND ITS PASSENGER BUSINESS IS CONDUCTED IN THE SAME MANNER
AS THAT OF ANY INTERURBAN ELECTRIC RAILWAY.  THE PASSENGER BUSINESS,
HOWEVER, YIELDS BUT A MINOR PART (ABOUT 18.1 PER CENT.) OF THE TOTAL
REVENUES.  DURING THE FIVE YEARS FROM 1930 TO 1934, INCLUSIVE, THE
FREIGHT REVENUES AMOUNTED TO $2,021,724.57 AND THE REVENUES FROM
PASSENGERS, MAIL AND EXPRESS WERE $448,941.62.  THE RAILWAY IS
PREDOMINANTLY A CARRIER OF FREIGHT.  THE FREIGHT TRAFFIC CONSISTS TO A
LARGE EXTENT OF RAW PRODUCTS SUCH AS SUGAR BEETS, MILK, TOMATOES AND
PEAS MOVING TO FACTORIES, CANNERIES OR PROCESSING PLANTS, AND OF THE
MANUFACTURED PRODUCTS MOVING OUTBOUND FROM THE PLANTS TO CONNECTING
RAILROADS.  A CONSIDERABLE PART OF THE MOVEMENT OF THE RAW PRODUCTS
REQUIRES SPECIAL SERVICE WITH ONE-CAR OR TWO-CAR TRAINS.  A DAILY
PACKAGE-MERCHANDISE TRAIN IS MAINTAINED, WITH FACILITIES FOR
REFRIGERATION IN SUMMER AND HEATING IN WINTER AND WITH PICK-UP AND
DELIVERY SERVICE AT ALL AVAILABLE POINTS.  IN 1934 THE FREIGHT TRAINS
AVERAGED 6.2 CARS EACH.  IN THE LAST HALF OF THAT YEAR THE CARRIER
HANDLED 6,354 CARLOADS OF FREIGHT OF WHICH 2,226 WERE LOCAL AND 4,017
WERE INTERCHANGED WITH OTHER CARRIERS.  THE TRAFFIC ORIGINATING ON ITS
LINE MOVED TO POINTS IN 31 STATES AND THAT DELIVERED BY IT WAS FROM
POINTS IN 26 STATES.  RESPONDENT IS A PARTY TO PRACTICALLY ALL THE
TARIFFS PUBLISHING THROUGH RATES TO OR FROM THIS TERRITORY AND ITS
INTERCHANGE TRAFFIC GENERALLY MOVES ON JOINT RATES.  IT DOES NOT
PERFORM INTERMEDIATE SERVICE BETWEEN OTHER LINES.  PRACTICALLY ALL THE
INTERCHANGE TRAFFIC IS HANDLED IN STANDARD EQUIPMENT FURNISHED BY
CONNECTING RAILROADS. 

IT CANNOT BE SAID UPON THIS EVIDENCE, AND THE RELATED FACTS
SUMMARIZED IN THE COMMISSION'S REPORT, THAT THE COMMISSION'S
DETERMINATION LACKED SUPPORT OR WAS ARBITRARY OR CAPRICIOUS.  NOR IS
THERE GROUND FOR HOLDING THAT THE COMMISSION IN REACHING ITS
DETERMINATION DEPARTED FROM APPLICABLE PRINCIPLES OF LAW.  THERE IS NO
PRINCIPLE OF LAW WHICH REQUIRED SUCH A CARRIER TO BE CLASSIFIED AS AN
INTERURBAN RAILWAY.  FAILING IN ITS EFFORT TO OBTAIN A CLARIFYING
DEFINITION FROM CONGRESS, THE COMMISSION PERFORMED ITS DUTY IN WEIGHING
THE EVIDENCE AND REACHING ITS CONCLUSION IN THE LIGHT OF THE DOMINANT
CHARACTERISTICS OF RESPONDENT'S OPERATIONS WHICH WERE FAIRLY COMPARABLE
TO THOSE OF STANDARD STEAM RAILROADS.  COMPARE PIEDMONT & NORTHERN RY.
CO. V. INTERSTATE COMMERCE COMM'N, SUPRA, PP. 308-310; UNITED STATES V.
CHICAGO NORTH SHORE & M.R. CO., SUPRA, P. 10. 

WE CONCLUDE THAT THE DISTRICT COURT ERRED IN PERMITTING A TRIAL DE
NOVO OF THAT ISSUE AND THAT THE DETERMINATION OF THE COMMISSION WAS
WITHIN ITS AUTHORITY VALIDLY EXERCISED.  THE DECREE OF THE CIRCUIT
COURT OF APPEALS IS REVERSED AND THE CAUSE IS REMANDED TO THE DISTRICT
COURT WITH DIRECTION TO DISMISS THE BILL OF COMPLAINT.  REVERSED. 

FN1  48 STAT. 1185; 45 U.S.C. 151 

FN2  45 U.S.C. 152, EIGHTH. 

FN3  45 U.S.C. 152, TENTH. 

FN4  ANNUAL REPORTS OF INTERSTATE COMMERCE COMMISSION, 1921, P. 21;
1923, P. 70; 1924, P. 78; 1925, P. 72; 1928, P. 83; 1929, P. 80; TO
WHICH REFERENCE IS MADE IN UNITED STATES V. CHICAGO NORTH SHORE & M.R.
CO., 288 U.S. 1, 11, 12. 

FN5  SEE TEXAS ELECTRIC RAILWAY, 208 I.C.C. 193; CHICAGO SOUTH SHORE
& SOUTH BEND RAILROAD, 214 I.C.C. 167; UTAH IDAHO CENTRAL RAILROAD CO.,
214 I.C.C. 707. 

FN6  38 STAT. 208, 219, 220; 28 U.S.C. 41, 46, 47. 

FN7  COMPARE GREAT NORTHERN RY. CO. V. UNITED STATES, 277 U.S. 172,
180; BUTTE, ANACONDA & PACIFIC RY. CO. V. UNITED STATES, 290 U.S. 127. 

FN8  49 STAT. 449, SEC. 2(2). 

FN9  50 STAT. 307. 

FN10  50 STAT. 435. 

FN11  52 STAT. 1094.  SEE, ALSO, THE PROVISION OF SEC. 9(A) OF THE
CARRIERS TAXING ACT OF 1937, 50 STAT. 439, WITH RESPECT TO THE
APPLICATION OF THE TERM "EMPLOYMENT" AS DEFINED IN TITLE VIII OF THE
SOCIAL SECURITY ACT, SEC. 811(B). 

FN12  TEXAS & NEW ORLEANS R. CO. V. RAILWAY CLERKS, 281 U.S. 548;
VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515. 

FN13  OHIO VALLEY WATER CO. V. BEN AVON BOROUGH, 253 U.S. 287, 289;
PRENDERGAST V. NEW YORK TELEPHONE CO., 262 U.S. 43, 50; BLUEFIELD WATER
WORKS CO. V. PUBLIC SERVICE COMM'N, 262 U.S. 679, 689; TAGG BROS. &
MOORHEAD V. UNITED STATES, 280 U.S. 420, 443, 444; PHILLIPS V.
COMMISSIONER, 283 U.S. 589, 600; CROWELL V. BENSON, 285 U.S. 22, 60;
STATE CORPORATION COMM'N V. WICHITA GAS CO., 290 U.S. 561, 569. 

FN14  SEE UNITED STATES V. CHICAGO NORTH SHORE & M.R. CO., 288 U.S.
1, 13, 14. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :











LYETH V. HOEY, 305 U.S. 188 


NO. 48.  ARGUED NOVEMBER 16, 1938.  - DECIDED DECEMBER 5, 1938.  - 96
F.2D 141, REVERSED - 20 F.SUPP.  619, AFFIRMED. 


1.  PROPERTY RECEIVED BY AN HEIR UNDER AN AGREEMENT COMPROMISING AND
SETTLING HIS CONTEST OF THE DECEDENT'S WILL, IS PROPERTY ACQUIRED BY
"INHERITANCE," WITHIN THE MEANING OF SEC. 22(B)(3) OF THE REVENUE ACT
OF 1932, WHICH EXEMPTS THE VALUE OF SUCH PROPERTY FROM THE INCOME TAX. 
P. 191. 

2.  THIS QUESTION IS NOT DETERMINED BY THE LOCAL LAW, BUT IS A
FEDERAL QUESTION, IN DECIDING WHICH THE LANGUAGE OF THE REVENUE LAW
SHOULD BE SO CONSTRUED AS TO GIVE UNIFORM APPLICATION TO A NATIONWIDE
SCHEME OF TAXATION.  P. 193. 

CONGRESS ESTABLISHES ITS OWN CRITERIA AND THE STATE LAW MAY CONTROL
ONLY WHEN THE FEDERAL TAXING ACT BY EXPRESS LANGUAGE OR NECESSARY
IMPLICATION MAKES ITS OPERATION DEPENDENT UPON STATE LAW. 

3.  THE CLAIMANT IN THIS CASE WAS CONCEDEDLY AN HEIR CONTESTING THE
WILL.  THE DECREE OF PROBATE ADMITTING THE WILL ALSO REQUIRED THAT THE
ESTATE BE DISTRIBUTED IN ACCORDANCE WITH THE COMPROMISE AGREEMENT.  IN
SO FAR AS IT PROVIDED FOR DISTRIBUTION TO HEIRS THE AGREEMENT OVERRODE
THE WILL.  THE PORTION SO OBTAINED BY THE CLAIMANT CAME NOT THROUGH THE
WILL, BUT BECAUSE OF HIS HEIRSHIP.  THE FACT THAT HE RECEIVED LESS THAN
THE AMOUNT OF HIS CLAIM DID NOT ALTER ITS NATURE OR THE QUALITY OF ITS
RECOGNITION THROUGH THE DISTRIBUTION WHICH HE DID RECEIVE.  WHAT HE GOT
FROM THE ESTATE CAME TO HIM BECAUSE HE WAS HEIR, THE COMPROMISE SERVING
TO REMOVE PRO TANTO THE IMPEDIMENT TO HIS INHERITANCE.  P. 195. 

LYETH V. HOEY, COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 304 U.S. 557, TO REVIEW THE REVERSAL OF A JUDGMENT
RECOVERED FROM THE RESPONDENT TAX COLLECTOR FOR MONEY COLLECTED BY HIM
FROM THE PETITIONER AS AN INCOME TAX. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER PROPERTY RECEIVED BY PETITIONER
FROM THE ESTATE OF A DECEDENT IN COMPROMISE OF HIS CLAIM AS AN HEIR IS
TAXABLE AS INCOME UNDER THE REVENUE ACT OF 1932. 

PETITIONER IS A GRANDSON OF MARY B. LONGYEAR WHO DIED IN 1931, A
RESIDENT OF MASSACHUSETTS, LEAVING AS HER HEIRS FOUR SURVIVING CHILDREN
AND THE PETITIONER AND HIS BROTHER, WHO WERE SONS OF A DECEASED
DAUGHTER.  BY HER WILL, THE DECEDENT GAVE TO HER HEIRS CERTAIN SMALL
LEGACIES AND THE ENTIRE RESIDUARY ESTATE, AMOUNTING TO MORE THAN
$3,000,000, WAS BEQUEATHED TO TRUSTEES OF A SO-CALLED ENDOWMENT TRUST,
CREATED APRIL 5, 1926, THE INCOME FROM WHICH WAS PAYABLE TO ANOTHER SET
OF TRUSTEES UNDER ANOTHER TRUST DESCRIBED AS THE LONGYEAR FOUNDATION. 
THE MAIN PURPOSE OF THE LATTER TRUST WAS TO PRESERVE "THE RECORDS OF
THE EARTHLY LIFE OF MARY BAKER EDDY," THE FOUNDER OF THE CHRISTIAN
SCIENCE RELIGION. 

WHEN THE WILL WAS OFFERED FOR PROBATE IN MASSACHUSETTS THERE WAS
OBJECTION BY THE HEIRS UPON THE GROUNDS, AMONG OTHERS, OF LACK OF
TESTAMENTARY CAPACITY AND UNDUE INFLUENCE.  AFTER HEARING, AT WHICH A
STATEMENT WAS MADE BY THE RESPECTIVE PARTIES OF THEIR PROPOSED
EVIDENCE, THE PROBATE COURT GRANTED A MOTION FOR THE FRAMING OF ISSUES
FOR TRIAL BEFORE A JURY.  IN THAT SITUATION A COMPROMISE AGREEMENT WAS
ENTERED INTO BETWEEN THE HEIRS, THE LEGATEES, THE DEVISEES AND THE
EXECUTORS UNDER THE WILL, AND THE ATTORNEY GENERAL OF MASSACHUSETTS. 
THIS AGREEMENT PROVIDED THAT THE WILL SHOULD BE ADMITTED TO PROBATE AND
LETTERS TESTAMENTARY ISSUED; THAT THE SPECIFIC AND PECUNIARY BEQUESTS
TO INDIVIDUALS SHOULD BE ENFORCED; THAT THE BEQUEST OF THE RESIDUARY
ESTATE TO THE ENDOWMENT TRUST SHOULD BE DISREGARDED; THAT $200,000
SHOULD BE PAID TO THE HEIRS AND A LIKE AMOUNT TO THE ENDOWMENT TRUST,
AND THAT THE NET RESIDUE OF THE ESTATE, AS DEFINED, SHOULD BE EQUALLY
DIVIDED BETWEEN THE TRUSTEES OF THE ENDOWMENT TRUST AND THE HEIRS.  THE
NET RESIDUE TO WHICH THE HEIRS WERE THUS ENTITLED WAS TO BE PAYABLE IN
UNITS OF STOCK OWNED BY THE DECEDENT IN CERTAIN CORPORATIONS, LONGYEAR
ESTATE, INC., LONGYEAR CORPORATION AND LONGYEAR REALTY CORPORATION, AND
FOR THAT PURPOSE A UNIT WAS TO CONSIST OF THREE SHARES, ONE SHARE OF
EACH CORPORATION. 

THE COMPROMISE WAS APPROVED BY THE PROBATE COURT PURSUANT TO A
STATUTE OF MASSACHUSETTS (MASS. GEN. LAWS 1932, C. 204, SECS. 15-17)
AND A DECREE WAS ENTERED ON APRIL 26, 1932, ADMITTING THE WILL TO
PROBATE, ISSUING LETTERS TESTAMENTARY TO THE EXECUTORS AND DIRECTING
THEM "TO ADMINISTER THE ESTATE OF SAID DECEASED IN ACCORDANCE WITH THE
TERMS OF SAID WILL AND SAID AGREEMENT OF COMPROMISE."  OWING TO THE
DEPRESSION AND THE NECESSITY OF DISCHARGING PECUNIARY LEGACIES
AMOUNTING TO ABOUT $300,000, WHICH WERE ENTITLED TO PRIORITY IN PAYMENT
BEFORE DISTRIBUTION OF THE RESIDUE, THE HEIRS UNDERTOOK TO FINANCE ONE
HALF OF THESE LEGACIES AND THE RESIDUARY LEGATEES THE OTHER ONE-HALF. 
FOR THIS PURPOSE THE HEIRS FORMED A CORPORATION KNOWN AS LONGYEAR
HEIRS, INC., TO WHICH THEY ASSIGNED THEIR INTERESTS IN THE ESTATE IN
EXCHANGE FOR COMMON STOCK.  PREFERRED STOCK WAS ISSUED TO THE PECUNIARY
LEGATEES. 

IN JULY, 1933, THE EXECUTORS DISTRIBUTED TO LONGYEAR HEIRS, INC., AS
ASSIGNEE OF THE PETITIONER, HIS DISTRIBUTABLE SHARE OF THE ESTATE
CONSISTING OF $80.17 IN CASH AND A CERTIFICATE OF DEPOSIT FOR 358
UNITS, EACH UNIT REPRESENTING ONE SHARE OF EACH OF THE THREE
CORPORATIONS MENTIONED IN THE COMPROMISE AGREEMENT.  THE COMMISSIONER
OF INTERNAL REVENUE VALUED THIS DISTRIBUTABLE SHARE AT $141,484.03 AND
TREATED THE WHOLE AMOUNT AS INCOME FOR THE YEAR 1933 IN WHICH IT WAS
RECEIVED.  AN ADDITIONAL TAX OF $56,389.65 WAS ASSESSED, WHICH
PETITIONER PAID IN OCTOBER, 1936, WITH INTEREST.  CLAIM FOR REFUND WAS
THEN FILED AND ON ITS REJECTION THIS SUIT WAS BROUGHT AGAINST THE
COLLECTOR. 

ON MOTION OF PETITIONER THE DISTRICT COURT ENTERED A SUMMARY JUDGMENT
IN HIS FAVOR, 20 F.SUPP.  619, WHICH THE CIRCUIT COURT OF APPEALS
REVERSED.  96 F.2D 141.  BECAUSE OF A CONFLICT WITH THE DECISION OF THE
CIRCUIT COURT OF APPEALS OF THE FOURTH CIRCUIT IN MAGRUDER V. SEGEBADE,
94 F.2D 177, CERTIORARI WAS GRANTED. 

THE COURT OF APPEALS OVERRULED THE CONTENTIONS OF PETITIONER THAT THE
PROPERTY HE RECEIVED WAS WITHIN THE STATUTORY EXEMPTION (SEC. 22(B)(3)
OF THE REVENUE ACT OF 1932) AND, FURTHER, THAT THE PROPERTY WAS NOT
INCOME EITHER UNDER THE STATUTE OR UNDER THE SIXTEENTH AMENDMENT OF THE
FEDERAL CONSTITUTION.  AS THE VIEW OF THE COURT OF APPEALS UPON THESE
QUESTIONS DETERMINED THE RIGHTS OF THE PARTIES, IT WAS FOUND
UNNECESSARY TO DISCUSS CERTAIN AFFIRMATIVE DEFENSES SET UP BY THE
ANSWER OF THE RESPONDENT AND THESE DEFENSES ARE NOT PRESSED IN THIS
COURT. 

FIRST.  BY SEC. 22(B)(3) OF THE REVENUE ACT OF 1932, THERE IS
EXEMPTED FROM THE INCOME TAX - 

"THE VALUE OF PROPERTY ACQUIRED BY GIFT, BEQUEST, DEVISE, OR
INHERITANCE.  ...  " 

WHETHER PROPERTY RECEIVED BY AN HEIR FROM THE ESTATE OF HIS ANCESTOR
IS ACQUIRED BY INHERITANCE, WHEN IT IS DISTRIBUTED UNDER AN AGREEMENT
SETTLING A CONTEST BY THE HEIR OF THE VALIDITY OF THE DECEDENT'S WILL,
IS A QUESTION UPON WHICH STATE COURTS HAVE DIFFERED.  THE QUESTION HAS
ARISEN IN THE APPLICATION OF STATE LAWS OF TAXATION.  IN MASSACHUSETTS,
THE RULE IS THAT WHEN A WILL IS ADMITTED TO PROBATE UNDER A COMPROMISE
AGREEMENT, THE STATE SUCCESSION TAX IS APPLIED TO THE PROPERTY "THAT
PASSES BY THE TERMS OF THE WILL AS WRITTEN AND NOT AS CHANGED BY ANY
AGREEMENT FOR COMPROMISE."  BAXTER V. TREASURER, 209 MASS. 459, 463; 95
N.E. 854, 856.  ALTHOUGH UNDER THE MASSACHUSETTS STATUTE RELATING TO
COMPROMISE  FN1  IT IS THE PRACTICE TO INSERT A CLAUSE IN THE COURT'S
DECREE THAT THE ESTATE IS TO BE ADMINISTERED IN ACCORDANCE WITH THE
AGREEMENT, "YET THE RIGHTS OF THE PARTIES SO FAR AS THEY REST UPON THE
AGREEMENT ARE CONTRACTUAL AND NOT TESTAMENTARY."  ELLIS V. HUNT, 228
MASS. 39, 43; 116 N.E. 956.  SEE, ALSO, BRANDEIS V. ATKINS, 204 MASS.
471, 474; 90 N.E. 861; COPELAND V. WHEELWRIGHT, 230 MASS. 131, 136; 119
N.E. 667.  THUS, WHEN A CONTEST WAS WITHDRAWN UNDER A COMPROMISE AND
THE RESIDUARY ESTATE WAS DIVIDED EQUALLY BETWEEN THE LEGATEE AND THE
HEIRS, IT WAS HELD THAT THE TAX WAS PROPERLY LEVIED UPON THE ENTIRE
RESIDUARY LEGACY AND THAT THE ADMINISTRATORS WITH THE WILL ANNEXED HAD
NO RIGHT TO PAY OUT OF THE SHARE TRANSFERRED TO THE HEIRS ONE-HALF OF
THE TAX THUS COLLECTIBLE FROM THE LEGATEE UNLESS THE COMPROMISE
AGREEMENT EXPRESSLY OR IMPLIEDLY SO PROVIDED.  BROWN V. MCLOUGHLIN, 287
MASS. 15, 17; 190 N.E. 795.  SEVERAL STATES HAVE A SIMILAR RULE.  FN2
IN OTHER STATES THE AMOUNT RECEIVED BY AN HEIR UNDER AN AGREEMENT
COMPROMISING A CONTEST OF HIS ANCESTOR'S WILL IS CONSIDERED TO BE
RECEIVED BY VIRTUE OF HIS HEIRSHIP AND IS SUBJECT TO AN INHERITANCE TAX
UNLESS THE STATUTE EXEMPTS HIM.  FN3 

IN THE INSTANT CASE, THE COURT OF APPEALS APPLIED THE MASSACHUSETTS
RULE, HOLDING THAT WHETHER THE PROPERTY WAS RECEIVED BY WAY OF
INHERITANCE DEPENDED "UPON THE LAW OF THE JURISDICTION UNDER WHICH THIS
TAXPAYER RECEIVED IT."  WE THINK THAT THIS RULING WAS ERRONEOUS.  THE
QUESTION AS TO THE CONSTRUCTION OF THE EXEMPTION IN THE FEDERAL STATUTE
IS NOT DETERMINED BY LOCAL LAW.  WE ARE NOT CONCERNED WITH THE
PECULIARITIES AND SPECIAL INCIDENCES OF STATE TAXES OR WITH THE
POLICIES THEY REFLECT.  UNDOUBTEDLY THE STATE LAW DETERMINES WHAT
PERSONS ARE QUALIFIED TO INHERIT PROPERTY WITHIN THE JURISDICTION. 
MAGER V. GRIMA, 8 HOW.  490, 493; MAXWELL V. BUGBEE, 250 U.S. 525, 536,
537.  THE LOCAL LAW DETERMINES THE RIGHT TO MAKE A TESTAMENTARY
DISPOSITION OF SUCH PROPERTY AND THE CONDITIONS ESSENTIAL TO THE
VALIDITY OF WILLS, AND THE STATE COURTS SETTLE THEIR CONSTRUCTION. 
UTERHART V. UNITED STATES, 240 U.S. 598, 603.  THE STATE ESTABLISHES
THE PROCEDURE GOVERNING THE PROBATE OF WILLS AND THE PROCESSES OF
ADMINISTRATION.  PETITIONER'S STATUS AS HEIR WAS THUS DETERMINED BY THE
LAW OF MASSACHUSETTS.  THAT LAW ALSO REGULATED THE PROCEDURE BY WHICH
HIS RIGHTS AS AN HEIR COULD BE VINDICATED.  THE STATE LAW AUTHORIZED
ITS COURTS TO SUPERVISE THE MAKING OF AGREEMENTS COMPROMISING CONTESTS
BY HEIRS OF THE VALIDITY OF AN ALLEGED WILL OF THEIR ANCESTOR, IN ORDER
THAT SUCH COMPROMISES SHALL BE JUST AND REASONABLE WITH RESPECT TO ALL
PERSONS IN INTEREST.  FN4  BUT WHEN THE CONTESTANT IS AN HEIR AND A
VALID COMPROMISE AGREEMENT HAS BEEN MADE AND THERE IS A DISTRIBUTION TO
THE HEIR FROM THE DECEDENT'S ESTATE ACCORDINGLY, THE QUESTION WHETHER
WHAT THE HEIR HAS THUS RECEIVED HAS BEEN "ACQUIRED BY INHERITANCE"
WITHIN THE MEANING OF THE FEDERAL STATUTE NECESSARILY IS A FEDERAL
QUESTION.  IT IS NOT DETERMINED BY LOCAL CHARACTERIZATION. 

IN DEALING WITH THE MEANING AND APPLICATION OF AN ACT OF CONGRESS
ENACTED IN THE EXERCISE OF ITS PLENARY POWER UNDER THE CONSTITUTION TO
TAX INCOME AND TO GRANT EXEMPTIONS FROM THAT TAX, IT IS THE WILL OF
CONGRESS WHICH CONTROLS, AND THE EXPRESSION OF ITS WILL, IN THE ABSENCE
OF LANGUAGE EVIDENCING A DIFFERENT PURPOSE, SHOULD BE INTERPRETED "SO
AS TO GIVE A UNIFORM APPLICATION TO A NATIONWIDE SCHEME OF TAXATION." 
BURNET V. HARMEL, 287 U.S. 103, 110.  CONGRESS ESTABLISHES ITS OWN
CRITERIA AND THE STATE LAW MAY CONTROL ONLY WHEN THE FEDERAL TAXING ACT
BY EXPRESS LANGUAGE OR NECESSARY IMPLICATION MAKES ITS OPERATION
DEPENDENT UPON STATE LAW.  BURNET V. HARMEL, SUPRA.  SEE BURK-WAGGONER
OIL ASSN. V. HOPKINS, 269 U.S. 110, 111, 114; WEISS V. WIENER, 279 U.S.
333, 337; MORRISSEY V. COMMISSIONER, 296 U.S. 344, 356.  COMPARE CROOKS
V. HARRELSON, 282 U.S. 55, 59; POE V. SEABORN, 282 U.S. 101, 109, 110;
BLAIR V. COMMISSIONER, 300 U.S. 5, 9, 10.  THERE IS NO SUCH EXPRESSION
OR NECESSARY IMPLICATION IN THIS INSTANCE.  WHETHER WHAT AN HEIR
RECEIVES FROM THE ESTATE OF HIS ANCESTOR THROUGH THE COMPROMISE OF HIS
CONTEST OF HIS ANCESTOR'S WILL SHOULD BE REGARDED AS WITHIN THE
EXEMPTION FROM THE FEDERAL TAX SHOULD NOT BE DECIDED IN ONE WAY IN THE
CASE OF AN HEIR IN PENNSYLVANIA OR MINNESOTA AND IN ANOTHER WAY IN THE
CASE OF AN HEIR IN MASSACHUSETTS OR NEW YORK,  FN5  ACCORDING TO THE
DIFFERING VIEWS OF THE STATE COURTS.  WE THINK THAT IT WAS THE
INTENTION OF CONGRESS IN ESTABLISHING THIS EXEMPTION TO PROVIDE A
UNIFORM RULE. 

SECOND.  IN EXEMPTING FROM THE INCOME TAX THE VALUE OF PROPERTY
ACQUIRED BY "BEQUEST, DEVISE, OR INHERITANCE," CONGRESS USED
COMPREHENSIVE TERMS EMBRACING ALL ACQUISITIONS IN THE DEVOLUTION OF A
DECEDENT'S ESTATE.  FOR THE WORD "DESCENT," AS USED IN THE EARLIER
ACTS,  FN6  CONGRESS SUBSTITUTED THE WORD "INHERITANCE" IN THE 1926 ACT
AND THE SUBSEQUENT REVENUE ACTS AS "MORE APPROPRIATELY INCLUDING BOTH
REAL AND PERSONAL PROPERTY."  FN7  THUS THE ACQUISITION BY SUCCESSION
TO A DECEDENT'S ESTATE WHETHER REAL OR PERSONAL WAS EMBRACED IN THE
EXEMPTION.  FURTHER, BY THE "ESTATE TAX," CONGRESS HAS IMPOSED A TAX
UPON THE TRANSFER OF THE ENTIRE NET ESTATE OF EVERY PERSON DYING AFTER
SEPTEMBER 8, 1916,  FN8  ALLOWING SUCH EXEMPTIONS AS IT SEES FIT IN
ARRIVING AT THE NET ESTATE.  CONGRESS HAS NOT INDICATED ANY INTENTION
TO TAX AGAIN THE VALUE OF THE PROPERTY WHICH LEGATEES, DEVISEES OR
HEIRS RECEIVE FROM THE DECEDENT'S ESTATE. 

PETITIONER WAS CONCEDEDLY AN HEIR OF HIS GRANDMOTHER UNDER THE
MASSACHUSETTS STATUTE.  IT WAS BY VIRTUE OF THAT HEIRSHIP THAT HE
OPPOSED PROBATE OF HER ALLEGED WILL WHICH CONSTITUTED AN OBSTACLE TO
THE ENFORCEMENT OF HIS RIGHT.  SAVE AS HEIR HE HAD NO STANDING. 
SEEKING TO REMOVE THAT OBSTACLE, HE ASSERTED THAT THE WILL WAS INVALID
BECAUSE OF WANT OF TESTAMENTARY CAPACITY AND UNDUE INFLUENCE.  IN
ACCORDANCE WITH LOCAL PRACTICE, HE ASKED THE PROBATE COURT TO FRAME
THESE ISSUES FOR A JURY TRIAL.  IT THEN BECAME NECESSARY FOR HIM TO
SATISFY THE COURT THAT THE ISSUES WERE SUBSTANTIAL.  ISSUES ARE NOT TO
BE FRAMED UNLESS IT APPEARS FROM STATEMENTS BY COUNSEL OF EXPECTED
EVIDENCE OR OTHERWISE THAT THERE IS A "GENUINE QUESTION OF FACT
SUPPORTED BY EVIDENCE OF SUCH A SUBSTANTIAL NATURE AS TO AFFORD GROUND
FOR REASONABLE EXPECTATION OF A RESULT FAVORABLE TO THE PARTY
REQUESTING THE FRAMING OF ISSUES."  BRIGGS V. WESTON, - MASS. -; 2
N.E.2D 466; SMITH V. PATTERSON, 286 MASS. 356; 190 N.E. 536. 
PETITIONER SATISFIED THAT CONDITION AND THE PROBATE COURT DIRECTED THE
FRAMING OF JURY ISSUES.  IT WAS IN THAT SITUATION, FACING A TRIAL OF
THE ISSUE OF THE VALIDITY OF THE WILL, THAT THE COMPROMISE WAS MADE BY
WHICH THE HEIRS, INCLUDING THE PETITIONER, WERE TO RECEIVE CERTAIN
PORTIONS OF THE DECEDENT'S ESTATE. 

THERE IS NO QUESTION THAT PETITIONER OBTAINED THAT PORTION, UPON THE
VALUE OF WHICH HE IS SOUGHT TO BE TAXED, BECAUSE OF HIS STANDING AS AN
HEIR AND OF HIS CLAIM IN THAT CAPACITY.  IT DOES NOT SEEM TO BE
QUESTIONED THAT IF THE CONTEST HAD BEEN FOUGHT TO A FINISH AND
PETITIONER HAD SUCCEEDED, THE PROPERTY WHICH HE WOULD HAVE RECEIVED
WOULD HAVE BEEN EXEMPT UNDER THE FEDERAL ACT.  NOR IS IT QUESTIONED
THAT IF IN ANY APPROPRIATE PROCEEDING, INSTITUTED BY HIM AS HEIR, HE
HAD RECOVERED JUDGMENT FOR A PART OF THE ESTATE, THAT PART WOULD HAVE
BEEN ACQUIRED BY INHERITANCE WITHIN THE MEANING OF THE ACT.  WE THINK
THAT THE DISTINCTION SOUGHT TO BE MADE BETWEEN ACQUISITION THROUGH SUCH
A JUDGMENT AND ACQUISITION BY A COMPROMISE AGREEMENT IN LIEU OF SUCH A
JUDGMENT IS TOO FORMAL TO BE SOUND, AS IT DISREGARDS THE SUBSTANCE OF
THE STATUTORY EXEMPTION.  IT DOES SO, BECAUSE IT DISREGARDS THE
HEIRSHIP WHICH UNDERLAY THE COMPROMISE, THE STATUS WHICH COMMANDED THAT
AGREEMENT AND WAS RECOGNIZED BY IT.  WHILE THE WILL WAS ADMITTED TO
PROBATE, THE DECREE ALSO REQUIRED THE DISTRIBUTION OF THE ESTATE IN
ACCORDANCE WITH THE COMPROMISE AND, SO FAR AS THE LATTER PROVIDED FOR
DISTRIBUTION TO THE HEIRS, IT OVERRODE THE WILL.  SO FAR AS THE WILL
BECAME EFFECTIVE UNDER THE AGREEMENT IT WAS BECAUSE OF THE HEIRS'
CONSENT AND RELEASE AND IN CONSIDERATION OF THE DISTRIBUTION THEY
RECEIVED BY REASON OF THEIR BEING HEIRS.  RESPONDENT AGREES THAT THE
WORD "INHERITANCE" AS USED IN THE FEDERAL STATUTE IS NOT SOLELY
APPLICABLE TO CASES OF COMPLETE INTESTACY.  THE PORTION OF THE
DECEDENT'S PROPERTY WHICH PETITIONER OBTAINED UNDER THE COMPROMISE DID
NOT COME TO HIM THROUGH THE TESTATOR'S WILL.  THAT PORTION HE OBTAINED
BECAUSE OF HIS HEIRSHIP AND TO THAT EXTENT HE TOOK IN SPITE OF THE WILL
AND AS IN CASE OF INTESTACY.  THE FACT THAT PETITIONER RECEIVED LESS
THAN THE AMOUNT OF HIS CLAIM DID NOT ALTER ITS NATURE OR THE QUALITY OF
ITS RECOGNITION THROUGH THE DISTRIBUTION WHICH HE DID RECEIVE. 

WE ARE NOT CONVINCED BY THE ARGUMENT THAT PETITIONER HAD BUT "THE
EXPECTATIONS" OF AN HEIR AND REALIZED ON A "BARGAINING POSITION."  HE
WAS HEIR IN FACT.  WHETHER HE WOULD RECEIVE ANY PROPERTY IN THAT
CAPACITY DEPENDED UPON THE VALIDITY OF HIS ANCESTOR'S WILL AND THE
EXTENT TO WHICH IT WOULD DISPOSE OF HIS ANCESTOR'S ESTATE.  WHEN, BY
COMPROMISE AND THE DECREE ENFORCING IT, THAT DISPOSITION WAS LIMITED,
WHAT HE GOT FROM THE ESTATE CAME TO HIM BECAUSE HE WAS HEIR, THE
COMPROMISE SERVING TO REMOVE PRO TANTO THE IMPEDIMENT TO HIS
INHERITANCE.  WE ARE OF THE OPINION THAT THE EXEMPTION APPLIES. 

IN THIS VIEW WE FIND IT UNNECESSARY TO CONSIDER THE OTHER QUESTIONS
THAT HAVE BEEN DISCUSSED AT THE BAR. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THAT OF
THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  MASSACHUSETTS GENERAL LAWS 1932, CHAP. 204, SECS. 13-18. 

FN2  SEE MATTER OF COOK, 187 N.Y. 253; 79 N.E. 991; ENGLISH V.
CRENSHAW, 120 TENN. 531; 110 S.W. 210; ESTATE OF WELLS, 142 IOWA 255;
120 N.W. 713; ESTATE OF GRAVES, 242 ILL. 212; 89 N.E. 978; ESTATE OF
ROSSI, 169 CAL. 148; 146 P. 430; COCHRAN'S EXECUTOR V. COMMONWEALTH,
241 KY. 656; 44 S.W.2D 603; MACKENZIE V. WRIGHT, 31 ARIZ. 272; 252 P.
521; IN RE O'NEILL, 111 N.J. EQ. 378; 162 A. 425; LYNCHBURG BANK V.
COMMONWEALTH, 162 VA. 73; 173 S.E. 548. 

FN3  SEE PEPPER'S ESTATE, 159 PA. 508; 28 A. 353; TABER'S ESTATE, 257
PA. 81; 101 A. 311; TAYLOR V. GEORGIA, 40 GA. APP. 295; 149 S.E. 321;
PEOPLE V. RICE, 40 COLO. 508; 91 P. 33; STATE EX REL. HILTON V. PROBATE
COURT, 143 MINN. 77; 172 N.W. 902; ESTATE OF THORSON, 150 MINN. 464;
185 N.W. 508.  COMPARE BARBER V. WESTCOTT, 21 R.I. 355; 43 A. 844. 

FN4  SEE NOTE 1.  SUCH AGREEMENTS ARE "ENTIRELY VALID OUTSIDE OF THE
STATUTE."  ELLIS V. HUNT, 228 MASS. 39, 44; 116 N.E. 956. 

FN5  SEE NOTES 2 AND 3. 

FN6 SEE ACT OF OCTOBER 3, 1913, C. 16, SEC. II, 38 STAT. 167; REVENUE
ACTS OF 1918, 1921 AND 1924, SEC. 213(B)(3). 

FN7  REVENUE ACT OF 1926, SEC. 213(B)(3); ACTS OF 1928 AND 1932, SEC.
22(B)(3).  SE. REP. NO. 52, 69TH CONG., 1ST SESS., P. 20. 

FN8 ACT OF SEPTEMBER 8, 1916, C. 463, TITLE II, 39 STAT. 777. 
..END :



















EDISON CO. V. LABOR BOARD, 305 U.S. 197 


NO. 19.  ARGUED OCTOBER 14, 17, 1938.  - DECIDED DECEMBER 5, 1938.  - 95
F.2D 390, AFFIRMED WITH MODIFICATION. 


1.  THE POWER OF THE FEDERAL GOVERNMENT, AND THE PROVISIONS OF THE
NATIONAL LABOR RELATIONS ACT, EXTEND TO THE LABOR RELATIONS OF PUBLIC
UTILITIES ENGAGED IN SUPPLYING ELECTRICAL ENERGY, GAS AND STEAM, WHERE
THE BUSINESS AND ACTIVITIES OF THE UTILITIES ARE WHOLLY WITHIN A STATE,
AND WHERE THE QUANTUM OF SERVICE RENDERED TO CUSTOMERS FOR STRICTLY
INTRASTATE USES IS VAST AND GREATLY PREPONDERANT, BUT WHERE,
NEVERTHELESS, A PART OF THAT SERVICE, OF MUCH IMPORTANCE IN ITSELF, IS
TO RAILROADS, STEAMSHIPS, TELEGRAPHS, TELEPHONES, ETC., ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE, AND WHERE THAT COMMERCE WOULD BE
SERIOUSLY AFFECTED IF SUCH SERVICE WERE CUT OFF BY INDUSTRIAL STRIFE
BETWEEN THE UTILITIES AND THEIR EMPLOYEES RESULTING FROM UNFAIR LABOR
PRACTICES.  P. 219. 

PETITIONERS, AN INTEGRATED SYSTEM OF PUBLIC UTILITIES, ARE ENGAGED IN
SUPPLYING ELECTRIC ENERGY, GAS AND STEAM (AND CERTAIN BYPRODUCTS)
WITHIN NEW YORK CITY AND ADJACENT WESTCHESTER COUNTY.  THEY SERVE OVER
3,500,000 CUSTOMERS WITH ELECTRICITY AND GAS, LARGELY FOR RESIDENTIAL
AND DOMESTIC PURPOSES.  IN 1936 THEY SUPPLIED ABOUT 97.5 PER CENT. OF
THE TOTAL ELECTRIC ENERGY SOLD IN THE CITY AND ABOUT 100 PER CENT. OF
THAT SOLD IN THE COUNTY.  THEY DO NOT SELL FOR RESALE WITHOUT THE
STATE.  THEY HAVE ABOUT 42,000 EMPLOYEES, THEIR TOTAL PAYROLLS IN 1936,
WITH RETIREMENT ANNUITIES AND SEPARATION ALLOWANCES, AMOUNTING TO
NEARLY $82,000,000.  THERE IS ALSO IMPRESSIVE EVIDENCE OF THE
DEPENDENCE OF INTERSTATE AND FOREIGN COMMERCE UPON THE CONTINUITY OF
THE SERVICE OF THE PETITIONING COMPANIES.  UPON THAT SERVICE DEPEND:
THREE RAILROAD COMPANIES FOR THE LIGHTING AND OPERATION OF PASSENGER
AND FREIGHT TERMINALS, AND FOR THE MOVEMENT OF INTERSTATE TRAINS; THE
PORT OF NEW YORK AUTHORITY FOR THE OPERATION OF ITS TERMINAL AND A
TUNNEL BETWEEN NEW YORK AND NEW JERSEY; A MAJORITY OF THE PIERS OF
TRANSATLANTIC AND COASTWISE STEAMSHIP COMPANIES ALONG THE NORTH AND
EAST RIVERS, WITHIN THE CITY OF NEW YORK, FOR LIGHTING, FREIGHT
HANDLING AND RELATED USES; TWO TELEGRAPH COMPANIES AND A TELEPHONE
COMPANY FOR POWER FOR TRANSMITTING AND RECEIVING MESSAGES, LOCAL AND
INTERSTATE; ALSO A TRANSATLANTIC RADIO SERVICE; AN AIRPORT; AND THE
FEDERAL GOVERNMENT, FOR OPERATION OF LIGHTHOUSES, BEACONS AND HARBOR
LIGHTS, AND FOR LIGHT, HEAT AND POWER IN VARIOUS FEDERAL BUILDINGS IN
NEW YORK CITY.  IN PASSING UPON THE STATUS OF THESE PETITIONERS WITH
RESPECT TO THE FEDERAL POWER OF REGULATION, THE COURT DOES NOT CONSIDER
SUPPLIES OF OIL, COAL, ETC., ALTHOUGH VERY LARGE, WHICH COME FROM
WITHOUT THE STATE AND ARE CONSUMED IN THE GENERATION AND DISTRIBUTION
OF ELECTRIC ENERGY AND GAS. 

2.  THE CRITERION OF THE FEDERAL CONSTITUTIONAL POWER TO SUPPRESS
UNFAIR LABOR PRACTICES, UNDER THE NATIONAL LABOR RELATIONS ACT, IS THE
INJURIOUS EFFECT UPON INTERSTATE AND FOREIGN COMMERCE, RATHER THAN THE
SOURCE OF THE INJURY.  P. 222. 

3.  WHETHER OR NOT PARTICULAR ACTION IN THE CONDUCT OF INTRASTATE
ENTERPRISES AFFECTS INTERSTATE OR FOREIGN COMMERCE IN SUCH A CLOSE AND
INTIMATE FASHION AS TO BE SUBJECT TO FEDERAL CONTROL, DEPENDS UPON THE
PARTICULAR CASE.  P. 222. 

4.  THE FACT THAT A STATE HAS THE POWER, AND HAS ENACTED A STATUTE,
TO REGULATE THE LABOR RELATIONS OF INTRASTATE ENTERPRISES IN ORDER TO
PREVENT INTERRUPTION OF THEIR SERVICES THROUGH INDUSTRIAL DISPUTES CAN
NOT AFFECT THE CONSTITUTIONAL POWER OF THE FEDERAL GOVERNMENT TO
REGULATE THOSE RELATIONS, IN ORDER TO PROTECT INTERSTATE AND FOREIGN
COMMERCE FROM THE INJURY DUE TO SUCH INTERRUPTION.  P. 222. 

5.  BUT WHERE, IN SUCH CASES, THE AUTHORITY OF THE NATIONAL LABOR
RELATIONS BOARD IS INVOKED TO PROTECT INTERSTATE AND FOREIGN COMMERCE
FROM INTERFERENCE OR INJURY ARISING FROM THE EMPLOYERS' INTRASTATE
ACTIVITIES, THE QUESTION WHETHER THE ALLEGED UNFAIR LABOR PRACTICES DO
ACTUALLY THREATEN INTERSTATE OR FOREIGN COMMERCE IN A SUBSTANTIAL
MANNER IS NECESSARILY PRESENTED.  AND IN DETERMINING THAT FACTUAL
QUESTION REGARD SHOULD BE HAD TO ALL THE EXISTING CIRCUMSTANCES,
INCLUDING THE BEARING AND EFFECT OF ANY PROTECTIVE ACTION TO THE SAME
END ALREADY TAKEN UNDER STATE AUTHORITY.  THE JUSTIFICATION FOR THE
EXERCISE OF FEDERAL POWER SHOULD CLEARLY APPEAR.  BUT THE QUESTION IN
SUCH A CASE WOULD RELATE NOT TO THE EXISTENCE OF THE FEDERAL POWER BUT
TO THE PROPRIETY OF ITS EXERCISE ON A GIVEN STATE OF FACTS.  P. 223. 

THE PRESENT PROCEEDING WAS BEGUN BEFORE THE NEW YORK LABOR RELATIONS
ACT BECAME EFFECTIVE, AND THERE WAS NO EXERTION OF STATE AUTHORITY
WHICH COULD BE TAKEN TO REMOVE THE NEED FOR THE EXERTION OF FEDERAL
AUTHORITY TO PROTECT INTERSTATE AND FOREIGN COMMERCE.  THE EXERCISE OF
THE FEDERAL POWER TO PROTECT INTERSTATE AND FOREIGN COMMERCE FROM
INJURY DOES NOT DEPEND UPON A CLASH WITH STATE ACTION AND NEED NOT
AWAIT THE EXERCISE OF STATE AUTHORITY. 

6.  AMENDMENTS TO THE COMPLAINT IN A PROCEEDING BEFORE THE NATIONAL
LABOR RELATIONS BOARD,  - HELD DISCRETIONARY RULINGS AFFORDING NO
GROUND FOR CHALLENGING THE VALIDITY OF THE HEARING.  P. 224. 

7.  A REFUSAL BY THE NATIONAL LABOR RELATIONS BOARD TO PERMIT THE
RESPONDENT EMPLOYERS TO ADDUCE CERTAIN ADDITIONAL TESTIMONY, HIGHLY
IMPORTANT, WHICH COULD HAVE BEEN RECEIVED WITHOUT UNDUE DELAY,  - HELD
UNREASONABLE AND ARBITRARY.  P. 225. 

8.  WHERE THE NATIONAL LABOR RELATIONS BOARD, IN ABUSE OF ITS
DISCRETION, REFUSES TO RECEIVE IMPORTANT ADDITIONAL TESTIMONY WHICH
COULD HAVE BEEN RECEIVED WITHOUT UNDUE DELAY OF THE PROCEEDING, THE
INJURED PARTY HAS HIS REMEDY BY APPLICATION TO THE CIRCUIT COURT OF
APPEALS, UPON REVIEW OF THE ORDER, FOR LEAVE TO ADDUCE THE ADDITIONAL
EVIDENCE, UNDER SEC. 10(E)(F) OF THE ACT.  P. 226. 

9.  AFTER THE TAKING OF THE EVIDENCE BY A TRIAL EXAMINER, IN A CASE
UNDER THE NATIONAL LABOR RELATIONS ACT, THE EMPLOYERS FILED A BRIEF
WITH HIM.  SEVERAL WEEKS LATER THE CASE WAS TRANSFERRED TO THE BOARD. 
THE EXAMINER MADE NO TENTATIVE REPORT OR FINDINGS, AND THERE WAS NO
OPPORTUNITY FOR A HEARING BEFORE THE BOARD ITSELF BEFORE THE BOARD MADE
ITS DECISION.  HELD: 

(1)  THAT IT MUST BE ASSUMED THAT THE BOARD RECEIVED AND CONSIDERED
THE BRIEF.  P. 226. 

(2)  UNDER THE RULES OF THE BOARD, THE EMPLOYERS DESIRING AN ORAL
HEARING SHOULD HAVE REQUESTED IT, AFTER THE TRANSFER TO THE BOARD.  P.
228. 

(3)  THOUGH IT CAN NOT BE SAID ON THIS RECORD THAT THE BOARD DID NOT
CONSIDER THE EVIDENCE OR THE PETITIONER'S BRIEF OR FAILED TO MAKE ITS
OWN FINDINGS IN THE LIGHT OF THAT EVIDENCE AND ARGUMENT, IT WOULD HAVE
BEEN BETTER PRACTICE FOR THE BOARD TO HAVE DIRECTED THE EXAMINER TO
MAKE A TENTATIVE REPORT WITH AN OPPORTUNITY FOR EXCEPTIONS AND ARGUMENT
THEREON.  P. 228. 

10.  IN PROVIDING THAT "THE FINDINGS OF THE BOARD AS TO THE FACTS, IF
SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE," THE ACT MEANS SUPPORTED BY
SUBSTANTIAL EVIDENCE - SUCH EVIDENCE AS A REASONABLE MIND MIGHT ACCEPT
AS ADEQUATE TO SUPPORT A CONCLUSION.  P. 229. 

THE STATUTE PROVIDES THAT "THE RULES OF EVIDENCE PREVAILING IN COURTS
OF LAW AND EQUITY SHALL NOT BE CONTROLLING."  THE OBVIOUS PURPOSE OF
THIS AND SIMILAR PROVISIONS IS TO FREE ADMINISTRATIVE BOARDS FROM THE
COMPULSION OF TECHNICAL RULES SO THAT THE MERE ADMISSION OF MATTER
WHICH WOULD BE DEEMED INCOMPETENT IN JUDICIAL PROCEEDINGS WOULD NOT
INVALIDATE THE ADMINISTRATIVE ORDER.  BUT THIS ASSURANCE OF A DESIRABLE
FLEXIBILITY IN ADMINISTRATIVE PROCEDURE DOES NOT GO SO FAR AS TO
JUSTIFY ORDERS WITHOUT A BASIS IN EVIDENCE HAVING RATIONAL PROBATIVE
FORCE.  MERE UNCORROBORATED HEARSAY OR RUMOR DOES NOT CONSTITUTE
SUBSTANTIAL EVIDENCE. 

11.  THE NATIONAL LABOR RELATIONS BOARD IS AUTHORIZED TO BAR THE
RESUMPTION OF AN UNFAIR LABOR PRACTICE WHICH HAS LATELY BEEN
ABANDONED.  P. 230. 

THE COURT IS SATISFIED FROM THE EVIDENCE IN THIS CASE THAT THE ORDER
OF THE BOARD, IN SO FAR AS IT REQUIRED EMPLOYER COMPANIES TO DESIST
FROM CERTAIN DISCRIMINATING AND COERCIVE PRACTICES, AND TO REINSTATE
CERTAIN EMPLOYEES, WITH BACK PAY, AND TO POST NOTICES ASSURING FREEDOM
FROM DISCRIMINATION AND COERCION, RESTED UPON FINDINGS SUSTAINED BY THE
EVIDENCE AND THAT THE DECREE OF THE COURT OF APPEALS ENFORCING THE
ORDER IN THESE RESPECTS SHOULD BE AFFIRMED. 

12.  IN A PROCEEDING IN WHICH THE NATIONAL LABOR RELATIONS BOARD
FOUND EMPLOYER COMPANIES GUILTY OF UNFAIR LABOR PRACTICES VIOLATING
SEC. 8(1) AND (3) OF THE NATIONAL LABOR RELATIONS ACT, BUT EXCULPATED
THEM FROM ALLEGED VIOLATION OF SEC. 8(2), WHICH MAKES IT AN UNFAIR
LABOR PRACTICE "TO DOMINATE OR INTERFERE WITH THE FORMATION OR
ADMINISTRATION OF ANY LABOR ORGANIZATION OR CONTRIBUTE FINANCIAL
SUPPORT TO IT," THE BOARD NEVERTHELESS ATTEMPTED, IN ITS ORDER, TO SET
ASIDE AGREEMENTS WHICH HAD BEEN MADE, PENDING THE PROCEEDING, BETWEEN
THE COMPANIES AND A BROTHERHOOD OF WORKERS AND ITS LOCAL UNIONS, ALL
INDEPENDENT ORGANIZATIONS NOT UNDER THE COMPANIES' CONTROL.  THESE
AGREEMENTS STIPULATED THAT THE BROTHERHOOD SHOULD BE THE COLLECTIVE
BARGAINING AGENCY OF THOSE OF THE COMPANIES' EMPLOYEES WHO WERE ITS
MEMBERS (COMPRISING 80% OF ALL THE COMPANIES' EMPLOYEES OUT OF 38,000
ELIGIBLE FOR MEMBERSHIP), AND THAT THE BROTHERHOOD AND ITS MEMBERS
WOULD NOT INTIMIDATE OR COERCE EMPLOYEES INTO MEMBERSHIP IN THE
BROTHERHOOD OR SOLICIT MEMBERSHIP ON THE TIME OR PROPERTY OF THE
EMPLOYERS.  THEY ALSO PROVIDED AGAINST STRIKES OR LOCKOUTS AND FOR THE
ADJUSTMENT AND ARBITRATION OF LABOR DISPUTES, THUS INSURING AGAINST THE
DISRUPTION OF THE SERVICE OF THE COMPANIES TO INTERSTATE OR FOREIGN
COMMERCE THROUGH AN OUTBREAK OF INDUSTRIAL STRIFE.  IT WAS CONCEDED
THAT THE CONTRACTS WERE FAIR TO BOTH EMPLOYER AND EMPLOYEE.  HELD THAT
SO MUCH OF THE BOARD'S ORDER, AS FORBADE THE COMPANIES TO GIVE EFFECT
TO SUCH AGREEMENTS, WAS BEYOND ITS AUTHORITY.  PP. 231, 238. 

(1)  THE BROTHERHOOD AND ITS LOCALS HAVING VALUABLE AND BENEFICIAL
INTERESTS IN THE CONTRACTS WERE ENTITLED TO NOTICE AND HEARING BEFORE
THEY COULD BE SET ASIDE.  NATIONAL LABOR RELATIONS BOARD V.
PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, DISTINGUISHED.  P. 232. 

(2)  NOTICE OF THE COMPLAINT, IN WHICH THE LEGALITY OF THE
COMPANIES'"RELATIONS" WITH THE BROTHERHOOD WAS ATTACKED, BUT NOT THE
VALIDITY OF THE CONTRACTS, DID NOT PLACE THE UNIONS UNDER A DUTY TO
INTERVENE BEFORE THE BOARD IN ORDER TO SAFEGUARD THEIR INTERESTS IN THE
CONTRACTS.  P. 234. 

(3)  THE RULE THAT DUE PROCESS DOES NOT REQUIRE AN OPPORTUNITY TO BE
HEARD BEFORE JUDGMENT IF DEFENSES MAY BE PRESENTED UPON APPEAL, ASSUMES
THAT THE APPELLATE REVIEW AFFORDS OPPORTUNITY TO PRESENT ALL AVAILABLE
DEFENSES INCLUDING LACK OF PROPER NOTICE TO JUSTIFY THE JUDGMENT OR
ORDER COMPLAINED OF.  P. 234. 

(4)  THE VALIDITY OF THE CONTRACTS WAS NOT NECESSARILY IN ISSUE
BECAUSE OF THE CHARGES OF UNFAIR LABOR PRACTICES IN THE BOARD'S
COMPLAINT; AND AMENDMENT OF THE COMPANIES' ANSWER, STATING THAT THE
CONTRACTS HAD MADE THE PROCEEDING MOOT, DID NOT PUT THEM IN ISSUE
BEFORE THE BOARD.  P. 234. 

(5)  THE ACT GIVES NO EXPRESS AUTHORITY TO THE BOARD TO INVALIDATE
CONTRACTS WITH INDEPENDENT LABOR ORGANIZATIONS.  THE AUTHORITY GRANTED
BY SEC. 10(C) TO REQUIRE THAT AN EMPLOYER GUILTY OF UNFAIR LABOR
PRACTICES DESIST FROM SUCH PRACTICES, AND "TAKE SUCH AFFIRMATIVE
ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR WITHOUT BACK PAY,
AS WILL EFFECTUATE THE POLICIES OF THIS ACT," IS REMEDIAL, NOT
PUNITIVE, AND IS TO BE EXERCISED IN AID OF THE BOARD'S AUTHORITY TO
RESTRAIN VIOLATIONS AND AS A MEANS OF REMOVING OR AVOIDING THE
CONSEQUENCES OF VIOLATION WHERE THOSE CONSEQUENCES ARE OF A KIND TO
THWART THE PURPOSES OF THE ACT.  P. 235. 

HERE, THERE IS NO BASIS FOR A FINDING THAT THE CONTRACTS WITH THE
BROTHERHOOD AND ITS LOCALS WERE A CONSEQUENCE OF THE UNFAIR LABOR
PRACTICES FOUND BY THE BOARD OR THAT THESE CONTRACTS IN THEMSELVES
THWART ANY POLICY OF THE ACT OR THAT THEIR CANCELLATION WOULD IN ANY
WAY MAKE THE ORDER TO CEASE THE SPECIFIED PRACTICES ANY MORE
EFFECTIVE. 

(6)  THE CONTRACTS WERE NOT INVALID BECAUSE MADE DURING THE PENDENCY
OF THE BOARD'S PROCEEDING.  P. 237. 

THE EFFECT OF SUCH PENDENCY EXTENDS TO THE PRACTICES OF THE EMPLOYERS
TO WHICH THE COMPLAINT WAS ADDRESSED.  IT DID NOT SUSPEND THE RIGHT OF
THE EMPLOYEES TO SELF-ORGANIZATION OR PRECLUDE THE BROTHERHOOD AS AN
INDEPENDENT ORGANIZATION CHOSEN BY ITS MEMBERS FROM MAKING FAIR
CONTRACTS ON THEIR BEHALF. 

(7)  THE CONTENTION OF THE BOARD THAT THE CONTRACTS WERE THE FRUIT OF
THE UNFAIR LABOR PRACTICES OF THE EMPLOYERS,  - "A DEVICE TO CONSUMMATE
AND PERPETUATE" THE COMPANIES' ILLEGAL CONDUCT, AND CONSTITUTED ITS
CULMINATION,  - IS REJECTED AS ENTIRELY TOO BROAD AND AS NOT WITHIN THE
COMPLAINT AND PROOF, BUT BASED ON MERE CONJECTURE.  P. 238. 

(8)  A PROVISION OF THE BOARD'S ORDER REQUIRING THE COMPANIES TO
CEASE RECOGNIZING THE BROTHERHOOD "AS THE EXCLUSIVE REPRESENTATIVE OF
THEIR EMPLOYEES," IS CONSTRUED AS MERELY PROVIDING THAT THERE SHALL BE
NO INTERFERENCE WITH AN EXCLUSIVE BARGAINING AGENCY IF ONE OTHER THAN
THE BROTHERHOOD SHOULD BE ESTABLISHED IN ACCORDANCE WITH THE PROVISIONS
OF THE ACT, AND IS SUSTAINED AS MERELY AN APPLICATION OF EXISTING LAW. 
P. 239.    CONSOLIDATED EDISON CO. ET AL. V. NATIONAL LABOR RELATIONS
BOARD ET AL.* 

*TOGETHER WITH NO. 25, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS ET AL. V. NATIONAL LABOR RELATIONS BOARD ET AL., ALSO ON WRIT
OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 304 U.S. 555, TO REVIEW A JUDGMENT ENFORCING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD.  SEE 4 N.L.R.B. 71.  THE CASE WAS
BEFORE THE COURT BELOW UPON A PETITION TO SET ASIDE THE ORDER, BROUGHT
BY THE CONSOLIDATED EDISON COMPANY OF NEW YORK AND ITS AFFILIATES, AND
A LIKE PETITION BY THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
AND ITS LOCALS, WHICH INTERVENED IN THAT COURT, AND UPON THE BOARD'S
PETITION TO ENFORCE, SUPPORTED BY THE UNITED ELECTRICAL AND RADIO
WORKERS OF AMERICA WHICH ALSO INTERVENED IN THAT COURT. 

I. THE BOARD HAS NOT SHOWN THAT ITS ASSUMPTION OF JURISDICTION WAS
ESSENTIAL OR APPROPRIATE, OR THAT SUCH JURISDICTION HAS BEEN OR COULD
BE CONFERRED UPON THE BOARD UNDER EXISTING CONSTITUTIONAL PROVISIONS
AND CONCEPTS. 

THE PETITIONERS' OPERATIONS, RELATIONS AND LABOR PRACTICES ARE
EXCLUSIVELY AND ENTIRELY INTRASTATE.  THEY ARE CARRIED ON WHOLLY WITHIN
A SINGLE STATE AND TRADITIONALLY SUBJECT TO PLENARY JURISDICTION OF THE
STATE; THEY ARE APPROPRIATELY REGULATED AND SUPERVISED AS LOCAL
CONCERNS AFFECTED WITH A LOCAL PUBLIC INTEREST.  BRUSH V. COMMISSIONER,
300 U.S. 352, 371; PACIFIC GAS & ELECTRIC CO. V. SACRAMENTO MUNICIPAL
UTILITY DIST., 92 F.2D 365, 369; 303 U.S. 620; SOUTHERN NATURAL GAS
CORP. V. ALABAMA, 301 U.S. 148, 154; MISSOURI V. KANSAS NATURAL GAS
CO., 265 U.S. 298. 

BECAUSE OF THE EXTENT AND IMMEDIACY OF THE FUNCTIONAL DEPENDENCE OF
NEW YORK CITY AND WESTCHESTER COUNTY AND THE MILLIONS OF THEIR
INHABITANTS UPON THE PETITIONERS' SERVICES, THE LOCAL INTEREST IN
PETITIONERS' UNINTERRUPTED SUPPLY OF THEIR SERVICES IS PREDOMINANT AND
PARAMOUNT.  PETITIONERS' OPERATIONS AND LABOR RELATIONS ARE
PREDOMINANTLY LOCAL RATHER THAN NATIONAL BECAUSE OF THE DIRECTNESS AND
IMMEDIACY OF THEIR RELATION TO THE HEALTH, SAFETY, COMFORT, AND
CONVENIENCE AND GENERAL WELFARE OF THE PEOPLE WHO RESIDE AND DO
BUSINESS IN THE CITY AND STATE OF NEW YORK, AND BECAUSE OF THE
DEPENDENCE OF THAT CITY AND STATE THEREON IN EXERCISING THEIR POLICE
POWERS FOR THE MAINTENANCE OF ORDER AND PUBLIC CONVENIENCE AND THE
PROTECTION OF THE SAFETY AND WELL-BEING OF THEIR INHABITANTS.  SUCH
NATIONAL INTEREST AS MAY ATTEND SUCH LOCAL OPERATIONS, RELATIONS AND
LABOR PRACTICES AND RELATE TO THE PREVENTION OR REMOVAL OF BURDENS OR
OBSTRUCTIONS TO "COMMERCE," IS ESSENTIALLY SUBORDINATE AND REQUIRES NO
SEPARATE IDENTIFICATION SO AS TO SERVE AS A BASIS FOR FEDERAL
REGULATION. 

IN VIEW OF THIS PARAMOUNT LOCAL INTEREST IN PETITIONERS' SERVICE AND
OPERATIONS, AND THE ALL-INCLUSIVE MEASURES IN EFFECT UNDER THE LAWS OF
THE STATE OF NEW YORK, INCLUDING THE NEW YORK STATE LABOR RELATIONS ACT
APPLICABLE TO PETITIONERS, WHO ARE SUBJECT FULLY TO THE LAWS OF THE
STATE, THE EXERCISE OF FEDERAL AUTHORITY BY THE BOARD IS NOT "ESSENTIAL
OR APPROPRIATE," BUT DEFINITELY CONTRARY TO THE MANDATE OF THIS COURT. 
FLORIDA V. UNITED STATES, 282 U.S. 194, 211, 212; CF. PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176; HOPKINS SAVINGS ASSN. V. CLEARY, 296 U.S. 315. 

THERE HAS BEEN NO BURDENING OR OBSTRUCTION OF COMMERCE BY ANY
INTERRUPTION OF PETITIONERS' SERVICES BECAUSE OF ANY LABOR CONTROVERSY;
THERE IS NO EVIDENCE THAT ANY SUCH INTERRUPTION IS LIKELY FROM SUCH A
CAUSE, OR THAT A LABOR CONTROVERSY INVOLVING PETITIONER'S EMPLOYEES
WOULD BE LESS LIKELY UNDER THE BOARD'S JURISDICTION, OR WOULD NOT BE AS
EFFECTIVELY DEALT WITH BY THE STATE BOARD, AND THERE IS NO FINDING OF
ANY INADEQUACY OF THE STATE JURISDICTION AND REGULATION OF THE
PETITIONERS' LABOR PRACTICES. 

THE VARIOUS RULINGS OF THIS COURT UNDER THE ACT ARE NOT DECISIVE OR
CONTROLLING HERE, BECAUSE IN THOSE CASES THE EMPLOYER WAS ITSELF
ENGAGED ACTIVELY IN INTERSTATE COMMERCE, AND THE EMPLOYER'S BUSINESS
WAS ORGANIZED AND CONDUCTED PREDOMINANTLY AS AN ENTERPRISE IN
INTERSTATE COMMERCE, BEYOND FULL CONTROL IN ALL ASPECTS BY A SINGLE
STATE, AND THE EMPLOYER WAS NOT, AS HERE, A LOCAL OPERATING PUBLIC
UTILITY AFFECTED PREDOMINANTLY WITH A LOCAL PUBLIC INTEREST AND ALREADY
SUBJECT TO PLENARY JURISDICTION BY THE STATE AND LOCALITY, INCLUDING
REGULATION AS TO ITS LABOR PRACTICES, AND WITH A STATE LABOR RELATIONS
ACT AND STATE LABOR RELATIONS BOARD IN EXISTENCE AND FUNCTIONING. 

TO UPHOLD THE JURISDICTION ASSERTED HERE BY THE BOARD WOULD NOT ONLY
DISREGARD THE PLAIN ADMONITIONS IN THE DECISION OF NATIONAL LABOR
RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 30; BUT
ALSO WOULD REQUIRE SUBSTANTIAL MODIFICATION OF THE RULING OF THIS COURT
UNDER THE COMMERCE CLAUSE, IN FLORIDA V. UNITED STATES, 282 U.S. 194,
211, 212, AND OTHER RECENT DECISIONS. 

JURISDICTION WAS NOT CONFERRED BECAUSE SOME OF THE PETITIONERS'
SUPPLIES ARE ACQUIRED BY OTHERS WHO BRING THEM INTO THE STATE OF NEW
YORK.  THE FACTS AS TO THE ORIGINS OF SUPPLIES USED BY PETITIONERS SHOW
THAT GAS-OIL IS DELIVERED TO ONLY ONE OF THE PETITIONERS; DELIVERY IS
MADE BY THE SELLER, WITHIN THE CITY OF NEW YORK; DELIVERY OF COAL TO
THE STORAGE YARDS AND STATIONS, ALL WITHIN THAT CITY OR IN YONKERS, IS
MADE BY INDEPENDENT ENTERPRISERS; NO EMPLOYEE OF THE PETITIONERS IS
ENGAGED IN INTERSTATE TRANSPORTATION OF ANY MATERIALS; SOME OF THE
SUPPLIES OTHER THAN COAL AND OIL ORIGINATE OUTSIDE THE STATE. 

PURCHASES ARE MADE ONLY FROM NON-AFFILIATED PRODUCERS OR DEALERS, AND
PURCHASES EXTRA-STATE ARE SHIPPED ONLY THROUGH INSTRUMENTALITIES OF
TRANSPORTATION WHICH ARE OWNED AND OPERATED BY INDEPENDENT CARRIERS. 
ALL PURCHASES ARE MADE BY INDIVIDUAL CONTRACTS COVERING THE PARTICULAR
TRANSACTION.  THE SOURCE OF SUPPLY MAY CHANGE, DEPENDING UPON MARKET
CONDITIONS, OR THE NEEDS OF PARTICULAR PETITIONERS.  REQUIREMENTS OF
PARTICULAR PETITIONERS ARE SUPPLIED FROM STORAGE; NO EMPLOYEE OF ANY
PETITIONER IS INVOLVED UNTIL THE SUPPLIES HAVE "COME TO REST" IN
STORAGE, AND ONLY AN INSIGNIFICANT NUMBER OF EMPLOYEES IS INVOLVED
UNTIL THE SUPPLIES ARE MOVED INTO CONSUMPTION. 

THE RECORD SHOWS THAT THE PETITIONERS MAKE ALL OF THEIR PURCHASES FOR
THEIR OWN CONSUMPTION EXCLUSIVELY.  THEY BUY NOTHING FOR RESALE IN
INTERSTATE MARKETS OR ELSEWHERE; THEY SELL THEIR BY-PRODUCTS ENTIRELY
WITHIN THE STATE OF NEW YORK AND CREDIT THE PROCEEDS AGAINST THEIR
PRODUCTION COSTS. 

THE CONTROLLING FACT HERE, AS IN SCHECHTER POULTRY CORP. V. UNITED
STATES, 295 U.S. 495, 554, IS THAT, ALTHOUGH COAL, OIL AND OTHER
MATERIALS ORIGINATE OUTSIDE THE STATE, THE USE OF SUCH MATERIALS IS
ESSENTIALLY AND ONLY LOCAL AND INTRA-STATE.  THE INTERSTATE
TRANSPORTATION THAT PRECEDES LOCAL MANUFACTURE AND DISTRIBUTION CAN NOT
BE ISOLATED TO THE EXCLUSION OF THE LOCAL USE FOR WHICH THE MATERIALS
ARE INTENDED.  SINCE THIS USE IS LOCAL IN ITS IMMEDIACY, IT COUNTERACTS
AND OUTWEIGHS THE FACT THAT THE MATERIALS HAVE AN INTERSTATE ORIGIN;
OTHERWISE, EVERY INTRASTATE TRANSACTION WHICH INVOLVED INTERSTATE
TRANSPORTATION BY OTHERS WOULD COME WITHIN FEDERAL CONTROL AND THEREBY
PUT AN END TO OUR FEDERAL SYSTEM. 

THIS COURT HAS HELD THAT EVEN WHERE A UTILITY COMPANY BUYS ITS SUPPLY
OF GAS FROM INTERSTATE DISTRIBUTION (WHICH THESE PETITIONERS DO NOT DO
AS TO GAS, ELECTRICITY, OR STEAM), THE STATE JURISDICTION IS
NEVERTHELESS PARAMOUNT WITH RESPECT TO THE OPERATIONS OF THE UTILITY
COMPANY.  MISSOURI V. KANSAS NATURAL GAS CO., 265 U.S. 298, 309. 

IN THE JONES & LAUGHLIN DECISION AND THE OTHERS WHICH HAVE FOLLOWED
IT, THIS COURT HAS POINTED OUT THAT THE ACT HERE IS NOT TO BE CONSTRUED
AND APPLIED SO AS TO DESTROY "THE BALANCE OF THE CONSTITUTIONAL GRANTS
AND LIMITATIONS," AND MAY NOT APPLY TO WHOLLY INTRA-STATE ACTIVITIES
UNLESS "THEIR CONTROL IS" ESSENTIAL OR APPROPRIATE TO PROTECT COMMERCE
FROM DIRECT BURDENS AND OBSTRUCTIONS. 

THE CONTENTIONS AT ONE TIME URGED BEFORE THIS COURT IN BEHALF OF THE
BOARD, TO THE EFFECT THAT THE RECORD MUST SHOW THAT THERE IS A
REASONABLE PROBABILITY THAT THE LABOR PRACTICES WILL CAUSE STRIKES WITH
AN INTENT TO INTERFERE WITH COMMERCE, AND THAT IF SUCH STRIKES "DO
DEVELOP THEY WILL HAVE A NECESSARY EFFECT OF BURDENING AND OBSTRUCTING
COMMERCE," ETC., ARE NO LONGER URGED.  EMPHASIS IS NO LONGER PLACED BY
THE BOARD ON THE INTERSTATE STRUCTURE AND ORGANIZATION OF AN INDUSTRY
AND THE NEED FOR A REGULATION AS BROAD IN SCOPE AS THE SCALE OF THE
OPERATIONS.  THE PRESENT POSITION IS THAT IF THE BOARD MAKES A FINDING
THAT THE "STOPPAGE OF  ...  OPERATIONS BY INDUSTRIAL STRIFE" IN A
PARTICULAR ENTERPRISE WOULD RESULT IN WHAT THE BOARD REGARDS AS A
SUBSTANTIAL INTERRUPTION OR INTERFERENCE WITH INTERSTATE COMMERCE, EVEN
THOUGH IT BE COMMERCE CARRIED ON WHOLLY BY OTHERS, THE BOARD HAS
JURISDICTION.  A FEW EMPLOYEES BELONGING TO A MINORITY LABOR
ORGANIZATION CAN FILE A CHARGE AGAINST A PURELY LOCAL EMPLOYER; THE
BOARD NEED ONLY TO FIND THAT A STRIKE AND STOPPAGE OF OPERATIONS BY THE
EMPLOYER WOULD OBSTRUCT OR INTERFERE WITH COMMERCE, AND THE BOARD HAS
THEREBY GIVEN ITSELF JURISDICTION TO HEAR AND DETERMINE THE CHARGE. 
THE BOARD HERE MADE A FINDING COUCHED IN THE LANGUAGE OF THE STATUTE
"THAT THE ACTIVITIES OF THE RESPONDENTS  ...  TEND TO LEAD TO LABOR
DISPUTES BURDENING AND OBSTRUCTING COMMERCE AND THE FREE FLOW OF
COMMERCE."  CF. SEC. 2(7) OF THE ACT.  BY A SIMILAR PROCESS, VIRTUALLY
ANY EMPLOYER CAN BE BROUGHT UNDER THE BOARD'S JURISDICTION AT THE
BOARD'S OPTION. 

THE TRUE TEST OF JURISDICTION IS WHETHER OR NOT, IN THE ABSENCE OF
ACTION BY THE NATIONAL BOARD, THE "UNFAIR LABOR PRACTICES" UNDER
CONSIDERATION ARE SUFFICIENTLY LIKELY, UNDER THE CIRCUMSTANCES OF THE
CASE, TO RESULT IN A STOPPAGE OF OPERATIONS OF THESE PETITIONERS, SO AS
TO ESTABLISH A CLEAR NEED AND JUSTIFICATION FOR THE ACTION OF THE
NATIONAL BOARD IN TAKING JURISDICTION OF THE PETITIONERS WITH RESPECT
TO THOSE ALLEGED PRACTICES, IN ORDER TO PROTECT THE FREE FLOW OF
COMMERCE. 

THE BOARD'S POSITION IGNORES ALTOGETHER THE ABSENCE OF EVIDENCE AND
FINDINGS THAT ITS OWN ACTION IS NECESSARY IN ORDER TO PREVENT
"INDUSTRIAL STRIFE" AND "STOPPAGE OF  ...  OPERATIONS," ETC. THERE ARE
NO FINDINGS, NOR EVIDENCE, HERE THAT ANY POSSIBLE HAZARD OF INDUSTRIAL
STRIFE WHICH MIGHT RESULT IN STOPPAGE OF OPERATIONS WOULD NOT BE
ADEQUATELY AND EFFECTIVELY DEALT WITH BY THE STATE BOARD.  INDEED, WE
CHALLENGE ANYONE TO READ THIS RECORD OPEN-MINDEDLY AND ESCAPE THE
CONCLUSION THAT THE INTERVENTION OF THE NATIONAL BOARD NOT ONLY WAS
WHOLLY UNNECESSARY FOR PREVENTING INDUSTRIAL STRIFE AND AVERTING ANY
STOPPAGE OF OPERATIONS, BUT ALSO THAT THE INTERVENTION AND ACTION OF
THE NATIONAL BOARD, ITS ABROGATION OF CONTRACTS PROVIDING FOR
ARBITRATION, ETC., TENDED RATHER TO FOMENT STRIFE AND TO INTERJECT A
DANGER OF STOPPAGE WHERE NO SUCH DANGER EXISTED BEFORE. 

THE "FINDINGS" BY THE CONGRESS IN SEC. 1 OF THE ACT WERE NOT MADE IN
THE LIGHT OF, OR WITH ANY CONSIDERATION FOR, A CASE LIKE THE PRESENT
ONE, WHICH INVOLVES AN ALL-INCLUSIVE STATE LABOR RELATIONS ACT LAWFULLY
APPLICABLE TO THE EMPLOYER AND PROTECTIVE OF THE CONTINUITY OF THE
PETITIONERS' OPERATIONS FROM THE CONSEQUENCE OF UNFAIR LABOR PRACTICES
IN EVERY RESPECT AS ADEQUATELY AND COMPLETELY AS COULD BE UNDER THE
NATIONAL ACT.  NO STATE LABOR RELATIONS ACT HAD BEEN ENACTED WHEN THE
NATIONAL ACT BECAME LAW.  THIS COURT WARNED, IN THE JONES & LAUGHLIN
CASE (PAGE 30) AGAINST "SUPERIMPOSING" ON THE PROVISIONS OF THE ACT
"INFERENCES FROM GENERAL LEGISLATIVE DECLARATIONS OF AN AMBIGUOUS
CHARACTER," CONTAINED IN SEC. 1 OF THE ACT. 

IT WAS A PURPOSE OF THE CONGRESS IN ENACTING THE NATIONAL ACT, TO
EXEMPLIFY TO THE STATES A PATTERN OF DESIRABLE STATE LABOR RELATIONS
LEGISLATION WHICH COULD BE COPIED BY THEM TO GOVERN THE EVER-EXPANDING
SIZE AND COMPLEXITY OF PRESENT-DAY INTRA-STATE INDUSTRIAL RELATIONS. 
INDEED, IT IS A MATTER OF PUBLIC RECORD THAT THE NATIONAL GOVERNMENT
URGED JUST SUCH EXEMPLARY ACTION BY THE SEVERAL STATES, IN CONNECTION
WITH THE ENACTMENT OF THE NATIONAL ACT. 

THE STATE ACT HAD BECOME EFFECTIVE LONG BEFORE THE BOARD'S FINDINGS,
DECISION AND ORDER.  THE AVAILABILITY OF THE STATE FORUM WAS KNOWN TO
THE BOARD AT THE TIME ITS HEARINGS STARTED; AND THE QUESTION OF THE
NECESSITY AND JUSTIFICATION FOR THE NATIONAL BOARD'S ACTION,
NOTWITHSTANDING THE EFFECT OF THE STATE ACT, BECAME VITAL LONG BEFORE
THE BOARD HAD TAKEN ANY IMPORTANT FINAL ACTION. 

II.  THE BOARD DENIED TO PETITIONERS THE FULL AND FAIR HEARING AND
IMPARTIAL DETERMINATION WHICH ARE PREREQUISITES OF JUDICIAL ENFORCEMENT
OF ITS ORDER. 

TAKEN TOGETHER AND GIVEN CUMULATIVE EFFECT, OR EVEN IF EACH STANDS
ALONE, THE FOLLOWING INCIDENTS SHOULD BE HELD TO CONSTITUTE PRO TANTO A
WITHHOLDING OF DUE PROCESS OF LAW: 

(1)  THE ARBITRARY REFUSAL AND FAILURE OF THE BOARD TO GIVE
PETITIONERS AN OPPORTUNITY TO BE HEARD DIRECTLY BY THE BOARD ITSELF,
WHICH RENDERED THE BOARD'S ORDER ULTRA VIRES.  SEC. 10(B) OF THE ACT. 
NATIONAL LABOR RELATIONS BOARD V. HOPWOOD RETINNING CO., 98 F.2D 97,
101; INTERSTATE COMMERCE COMM'N V. NORTHERN PACIFIC RY. CO., 216 U.S.
538. 

P. 239. 

CONSOLIDATED EDISON CO. ET AL. V. NATIONAL LABOR RELATIONS BOARD ET
AL.* 

*TOGETHER WITH NO. 25, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS ET AL. V. NATIONAL LABOR RELATIONS BOARD ET AL., ALSO ON WRIT
OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 304 U.S. 555, TO REVIEW A JUDGMENT ENFORCING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD.  SEE 4 N.L.R.B. 71.  THE CASE WAS
BEFORE THE COURT BELOW UPON A PETITION TO SET ASIDE THE ORDER, BROUGHT
BY THE CONSOLIDATED EDISON COMPANY OF NEW YORK AND ITS AFFILIATES, AND
A LIKE PETITION BY THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
AND ITS LOCALS, WHICH INTERVENED IN THAT COURT, AND UPON THE BOARD'S
PETITION TO ENFORCE, SUPPORTED BY THE UNITED ELECTRICAL AND RADIO
WORKERS OF AMERICA WHICH ALSO INTERVENED IN THAT COURT. 

I. THE BOARD HAS NOT SHOWN THAT ITS ASSUMPTION OF JURISDICTION WAS
ESSENTIAL OR APPROPRIATE, OR THAT SUCH JURISDICTION HAS BEEN OR COULD
BE CONFERRED UPON THE BOARD UNDER EXISTING CONSTITUTIONAL PROVISIONS
AND CONCEPTS. 

THE PETITIONERS' OPERATIONS, RELATIONS AND LABOR PRACTICES ARE
EXCLUSIVELY AND ENTIRELY INTRASTATE.  THEY ARE CARRIED ON WHOLLY WITHIN
A SINGLE STATE AND TRADITIONALLY SUBJECT TO PLENARY JURISDICTION OF THE
STATE; THEY ARE APPROPRIATELY REGULATED AND SUPERVISED AS LOCAL
CONCERNS AFFECTED WITH A LOCAL PUBLIC INTEREST.  BRUSH V. COMMISSIONER,
300 U.S. 352, 371; PACIFIC GAS & ELECTRIC CO. V. SACRAMENTO MUNICIPAL
UTILITY DIST., 92 F.2D 365, 369; 303 U.S. 620; SOUTHERN NATURAL GAS
CORP. V. ALABAMA, 301 U.S. 148, 154; MISSOURI V. KANSAS NATURAL GAS
CO., 265 U.S. 298. 

BECAUSE OF THE EXTENT AND IMMEDIACY OF THE FUNCTIONAL DEPENDENCE OF
NEW YORK CITY AND WESTCHESTER COUNTY AND THE MILLIONS OF THEIR
INHABITANTS UPON THE PETITIONERS' SERVICES, THE LOCAL INTEREST IN
PETITIONERS' UNINTERRUPTED SUPPLY OF THEIR SERVICES IS PREDOMINANT AND
PARAMOUNT.  PETITIONERS' OPERATIONS AND LABOR RELATIONS ARE
PREDOMINANTLY LOCAL RATHER THAN NATIONAL BECAUSE OF THE DIRECTNESS AND
IMMEDIACY OF THEIR RELATION TO THE HEALTH, SAFETY, COMFORT, AND
CONVENIENCE AND GENERAL WELFARE OF THE PEOPLE WHO RESIDE AND DO
BUSINESS IN THE CITY AND STATE OF NEW YORK, AND BECAUSE OF THE
DEPENDENCE OF THAT CITY AND STATE THEREON IN EXERCISING THEIR POLICE
POWERS FOR THE MAINTENANCE OF ORDER AND PUBLIC CONVENIENCE AND THE
PROTECTION OF THE SAFETY AND WELL-BEING OF THEIR INHABITANTS.  SUCH
NATIONAL INTEREST AS MAY ATTEND SUCH LOCAL OPERATIONS, RELATIONS AND
LABOR PRACTICES AND RELATE TO THE PREVENTION OR REMOVAL OF BURDENS OR
OBSTRUCTIONS TO "COMMERCE," IS ESSENTIALLY SUBORDINATE AND REQUIRES NO
SEPARATE IDENTIFICATION SO AS TO SERVE AS A BASIS FOR FEDERAL
REGULATION. 

IN VIEW OF THIS PARAMOUNT LOCAL INTEREST IN PETITIONERS' SERVICE AND
OPERATIONS, AND THE ALL-INCLUSIVE MEASURES IN EFFECT UNDER THE LAWS OF
THE STATE OF NEW YORK, INCLUDING THE NEW YORK STATE LABOR RELATIONS ACT
APPLICABLE TO PETITIONERS, WHO ARE SUBJECT FULLY TO THE LAWS OF THE
STATE, THE EXERCISE OF FEDERAL AUTHORITY BY THE BOARD IS NOT "ESSENTIAL
OR APPROPRIATE," BUT DEFINITELY CONTRARY TO THE MANDATE OF THIS COURT. 
FLORIDA V. UNITED STATES, 282 U.S. 194, 211, 212; CF. PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176; HOPKINS SAVINGS ASSN. V. CLEARY, 296 U.S. 315. 

THERE HAS BEEN NO BURDENING OR OBSTRUCTION OF COMMERCE BY ANY
INTERRUPTION OF PETITIONERS' SERVICES BECAUSE OF ANY LABOR CONTROVERSY;
THERE IS NO EVIDENCE THAT ANY SUCH INTERRUPTION IS LIKELY FROM SUCH A
CAUSE, OR THAT A LABOR CONTROVERSY INVOLVING PETITIONER'S EMPLOYEES
WOULD BE LESS LIKELY UNDER THE BOARD'S JURISDICTION, OR WOULD NOT BE AS
EFFECTIVELY DEALT WITH BY THE STATE BOARD, AND THERE IS NO FINDING OF
ANY INADEQUACY OF THE STATE JURISDICTION AND REGULATION OF THE
PETITIONERS' LABOR PRACTICES. 

THE VARIOUS RULINGS OF THIS COURT UNDER THE ACT ARE NOT DECISIVE OR
CONTROLLING HERE, BECAUSE IN THOSE CASES THE EMPLOYER WAS ITSELF
ENGAGED ACTIVELY IN INTERSTATE COMMERCE, AND THE EMPLOYER'S BUSINESS
WAS ORGANIZED AND CONDUCTED PREDOMINANTLY AS AN ENTERPRISE IN
INTERSTATE COMMERCE, BEYOND FULL CONTROL IN ALL ASPECTS BY A SINGLE
STATE, AND THE EMPLOYER WAS NOT, AS HERE, A LOCAL OPERATING PUBLIC
UTILITY AFFECTED PREDOMINANTLY WITH A LOCAL PUBLIC INTEREST AND ALREADY
SUBJECT TO PLENARY JURISDICTION BY THE STATE AND LOCALITY, INCLUDING
REGULATION AS TO ITS LABOR PRACTICES, AND WITH A STATE LABOR RELATIONS
ACT AND STATE LABOR RELATIONS BOARD IN EXISTENCE AND FUNCTIONING. 

TO UPHOLD THE JURISDICTION ASSERTED HERE BY THE BOARD WOULD NOT ONLY
DISREGARD THE PLAIN ADMONITIONS IN THE DECISION OF NATIONAL LABOR
RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 30; BUT
ALSO WOULD REQUIRE SUBSTANTIAL MODIFICATION OF THE RULING OF THIS COURT
UNDER THE COMMERCE CLAUSE, IN FLORIDA V. UNITED STATES, 282 U.S. 194,
211, 212, AND OTHER RECENT DECISIONS. 

JURISDICTION WAS NOT CONFERRED BECAUSE SOME OF THE PETITIONERS'
SUPPLIES ARE ACQUIRED BY OTHERS WHO BRING THEM INTO THE STATE OF NEW
YORK.  THE FACTS AS TO THE ORIGINS OF SUPPLIES USED BY PETITIONERS SHOW
THAT GAS-OIL IS DELIVERED TO ONLY ONE OF THE PETITIONERS; DELIVERY IS
MADE BY THE SELLER, WITHIN THE CITY OF NEW YORK; DELIVERY OF COAL TO
THE STORAGE YARDS AND STATIONS, ALL WITHIN THAT CITY OR IN YONKERS, IS
MADE BY INDEPENDENT ENTERPRISERS; NO EMPLOYEE OF THE PETITIONERS IS
ENGAGED IN INTERSTATE TRANSPORTATION OF ANY MATERIALS; SOME OF THE
SUPPLIES OTHER THAN COAL AND OIL ORIGINATE OUTSIDE THE STATE. 

PURCHASES ARE MADE ONLY FROM NON-AFFILIATED PRODUCERS OR DEALERS, AND
PURCHASES EXTRA-STATE ARE SHIPPED ONLY THROUGH INSTRUMENTALITIES OF
TRANSPORTATION WHICH ARE OWNED AND OPERATED BY INDEPENDENT CARRIERS. 
ALL PURCHASES ARE MADE BY INDIVIDUAL CONTRACTS COVERING THE PARTICULAR
TRANSACTION.  THE SOURCE OF SUPPLY MAY CHANGE, DEPENDING UPON MARKET
CONDITIONS, OR THE NEEDS OF PARTICULAR PETITIONERS.  REQUIREMENTS OF
PARTICULAR PETITIONERS ARE SUPPLIED FROM STORAGE; NO EMPLOYEE OF ANY
PETITIONER IS INVOLVED UNTIL THE SUPPLIES HAVE "COME TO REST" IN
STORAGE, AND ONLY AN INSIGNIFICANT NUMBER OF EMPLOYEES IS INVOLVED
UNTIL THE SUPPLIES ARE MOVED INTO CONSUMPTION. 

THE RECORD SHOWS THAT THE PETITIONERS MAKE ALL OF THEIR PURCHASES FOR
THEIR OWN CONSUMPTION EXCLUSIVELY.  THEY BUY NOTHING FOR RESALE IN
INTERSTATE MARKETS OR ELSEWHERE; THEY SELL THEIR BY-PRODUCTS ENTIRELY
WITHIN THE STATE OF NEW YORK AND CREDIT THE PROCEEDS AGAINST THEIR
PRODUCTION COSTS. 

THE CONTROLLING FACT HERE, AS IN SCHECHTER POULTRY CORP. V. UNITED
STATES, 295 U.S. 495, 554, IS THAT, ALTHOUGH COAL, OIL AND OTHER
MATERIALS ORIGINATE OUTSIDE THE STATE, THE USE OF SUCH MATERIALS IS
ESSENTIALLY AND ONLY LOCAL AND INTRA-STATE.  THE INTERSTATE
TRANSPORTATION THAT PRECEDES LOCAL MANUFACTURE AND DISTRIBUTION CAN NOT
BE ISOLATED TO THE EXCLUSION OF THE LOCAL USE FOR WHICH THE MATERIALS
ARE INTENDED.  SINCE THIS USE IS LOCAL IN ITS IMMEDIACY, IT COUNTERACTS
AND OUTWEIGHS THE FACT THAT THE MATERIALS HAVE AN INTERSTATE ORIGIN;
OTHERWISE, EVERY INTRASTATE TRANSACTION WHICH INVOLVED INTERSTATE
TRANSPORTATION BY OTHERS WOULD COME WITHIN FEDERAL CONTROL AND THEREBY
PUT AN END TO OUR FEDERAL SYSTEM. 

THIS COURT HAS HELD THAT EVEN WHERE A UTILITY COMPANY BUYS ITS SUPPLY
OF GAS FROM INTERSTATE DISTRIBUTION (WHICH THESE PETITIONERS DO NOT DO
AS TO GAS, ELECTRICITY, OR STEAM), THE STATE JURISDICTION IS
NEVERTHELESS PARAMOUNT WITH RESPECT TO THE OPERATIONS OF THE UTILITY
COMPANY.  MISSOURI V. KANSAS NATURAL GAS CO., 265 U.S. 298, 309. 

IN THE JONES & LAUGHLIN DECISION AND THE OTHERS WHICH HAVE FOLLOWED
IT, THIS COURT HAS POINTED OUT THAT THE ACT HERE IS NOT TO BE CONSTRUED
AND APPLIED SO AS TO DESTROY "THE BALANCE OF THE CONSTITUTIONAL GRANTS
AND LIMITATIONS," AND MAY NOT APPLY TO WHOLLY INTRA-STATE ACTIVITIES
UNLESS "THEIR CONTROL IS" ESSENTIAL OR APPROPRIATE TO PROTECT COMMERCE
FROM DIRECT BURDENS AND OBSTRUCTIONS. 

THE CONTENTIONS AT ONE TIME URGED BEFORE THIS COURT IN BEHALF OF THE
BOARD, TO THE EFFECT THAT THE RECORD MUST SHOW THAT THERE IS A
REASONABLE PROBABILITY THAT THE LABOR PRACTICES WILL CAUSE STRIKES WITH
AN INTENT TO INTERFERE WITH COMMERCE, AND THAT IF SUCH STRIKES "DO
DEVELOP THEY WILL HAVE A NECESSARY EFFECT OF BURDENING AND OBSTRUCTING
COMMERCE," ETC., ARE NO LONGER URGED.  EMPHASIS IS NO LONGER PLACED BY
THE BOARD ON THE INTERSTATE STRUCTURE AND ORGANIZATION OF AN INDUSTRY
AND THE NEED FOR A REGULATION AS BROAD IN SCOPE AS THE SCALE OF THE
OPERATIONS.  THE PRESENT POSITION IS THAT IF THE BOARD MAKES A FINDING
THAT THE "STOPPAGE OF  ...  OPERATIONS BY INDUSTRIAL STRIFE" IN A
PARTICULAR ENTERPRISE WOULD RESULT IN WHAT THE BOARD REGARDS AS A
SUBSTANTIAL INTERRUPTION OR INTERFERENCE WITH INTERSTATE COMMERCE, EVEN
THOUGH IT BE COMMERCE CARRIED ON WHOLLY BY OTHERS, THE BOARD HAS
JURISDICTION.  A FEW EMPLOYEES BELONGING TO A MINORITY LABOR
ORGANIZATION CAN FILE A CHARGE AGAINST A PURELY LOCAL EMPLOYER; THE
BOARD NEED ONLY TO FIND THAT A STRIKE AND STOPPAGE OF OPERATIONS BY THE
EMPLOYER WOULD OBSTRUCT OR INTERFERE WITH COMMERCE, AND THE BOARD HAS
THEREBY GIVEN ITSELF JURISDICTION TO HEAR AND DETERMINE THE CHARGE. 
THE BOARD HERE MADE A FINDING COUCHED IN THE LANGUAGE OF THE STATUTE
"THAT THE ACTIVITIES OF THE RESPONDENTS  ...  TEND TO LEAD TO LABOR
DISPUTES BURDENING AND OBSTRUCTING COMMERCE AND THE FREE FLOW OF
COMMERCE."  CF. SEC. 2(7) OF THE ACT.  BY A SIMILAR PROCESS, VIRTUALLY
ANY EMPLOYER CAN BE BROUGHT UNDER THE BOARD'S JURISDICTION AT THE
BOARD'S OPTION. 

THE TRUE TEST OF JURISDICTION IS WHETHER OR NOT, IN THE ABSENCE OF
ACTION BY THE NATIONAL BOARD, THE "UNFAIR LABOR PRACTICES" UNDER
CONSIDERATION ARE SUFFICIENTLY LIKELY, UNDER THE CIRCUMSTANCES OF THE
CASE, TO RESULT IN A STOPPAGE OF OPERATIONS OF THESE PETITIONERS, SO AS
TO ESTABLISH A CLEAR NEED AND JUSTIFICATION FOR THE ACTION OF THE
NATIONAL BOARD IN TAKING JURISDICTION OF THE PETITIONERS WITH RESPECT
TO THOSE ALLEGED PRACTICES, IN ORDER TO PROTECT THE FREE FLOW OF
COMMERCE. 

THE BOARD'S POSITION IGNORES ALTOGETHER THE ABSENCE OF EVIDENCE AND
FINDINGS THAT ITS OWN ACTION IS NECESSARY IN ORDER TO PREVENT
"INDUSTRIAL STRIFE" AND "STOPPAGE OF  ...  OPERATIONS," ETC. THERE ARE
NO FINDINGS, NOR EVIDENCE, HERE THAT ANY POSSIBLE HAZARD OF INDUSTRIAL
STRIFE WHICH MIGHT RESULT IN STOPPAGE OF OPERATIONS WOULD NOT BE
ADEQUATELY AND EFFECTIVELY DEALT WITH BY THE STATE BOARD.  INDEED, WE
CHALLENGE ANYONE TO READ THIS RECORD OPEN-MINDEDLY AND ESCAPE THE
CONCLUSION THAT THE INTERVENTION OF THE NATIONAL BOARD NOT ONLY WAS
WHOLLY UNNECESSARY FOR PREVENTING INDUSTRIAL STRIFE AND AVERTING ANY
STOPPAGE OF OPERATIONS, BUT ALSO THAT THE INTERVENTION AND ACTION OF
THE NATIONAL BOARD, ITS ABROGATION OF CONTRACTS PROVIDING FOR
ARBITRATION, ETC., TENDED RATHER TO FOMENT STRIFE AND TO INTERJECT A
DANGER OF STOPPAGE WHERE NO SUCH DANGER EXISTED BEFORE. 

THE "FINDINGS" BY THE CONGRESS IN SEC. 1 OF THE ACT WERE NOT MADE IN
THE LIGHT OF, OR WITH ANY CONSIDERATION FOR, A CASE LIKE THE PRESENT
ONE, WHICH INVOLVES AN ALL-INCLUSIVE STATE LABOR RELATIONS ACT LAWFULLY
APPLICABLE TO THE EMPLOYER AND PROTECTIVE OF THE CONTINUITY OF THE
PETITIONERS' OPERATIONS FROM THE CONSEQUENCE OF UNFAIR LABOR PRACTICES
IN EVERY RESPECT AS ADEQUATELY AND COMPLETELY AS COULD BE UNDER THE
NATIONAL ACT.  NO STATE LABOR RELATIONS ACT HAD BEEN ENACTED WHEN THE
NATIONAL ACT BECAME LAW.  THIS COURT WARNED, IN THE JONES & LAUGHLIN
CASE (PAGE 30) AGAINST "SUPERIMPOSING" ON THE PROVISIONS OF THE ACT
"INFERENCES FROM GENERAL LEGISLATIVE DECLARATIONS OF AN AMBIGUOUS
CHARACTER," CONTAINED IN SEC. 1 OF THE ACT. 

IT WAS A PURPOSE OF THE CONGRESS IN ENACTING THE NATIONAL ACT, TO
EXEMPLIFY TO THE STATES A PATTERN OF DESIRABLE STATE LABOR RELATIONS
LEGISLATION WHICH COULD BE COPIED BY THEM TO GOVERN THE EVER-EXPANDING
SIZE AND COMPLEXITY OF PRESENT-DAY INTRA-STATE INDUSTRIAL RELATIONS. 
INDEED, IT IS A MATTER OF PUBLIC RECORD THAT THE NATIONAL GOVERNMENT
URGED JUST SUCH EXEMPLARY ACTION BY THE SEVERAL STATES, IN CONNECTION
WITH THE ENACTMENT OF THE NATIONAL ACT. 

THE STATE ACT HAD BECOME EFFECTIVE LONG BEFORE THE BOARD'S FINDINGS,
DECISION AND ORDER.  THE AVAILABILITY OF THE STATE FORUM WAS KNOWN TO
THE BOARD AT THE TIME ITS HEARINGS STARTED; AND THE QUESTION OF THE
NECESSITY AND JUSTIFICATION FOR THE NATIONAL BOARD'S ACTION,
NOTWITHSTANDING THE EFFECT OF THE STATE ACT, BECAME VITAL LONG BEFORE
THE BOARD HAD TAKEN ANY IMPORTANT FINAL ACTION. 

II.  THE BOARD DENIED TO PETITIONERS THE FULL AND FAIR HEARING AND
IMPARTIAL DETERMINATION WHICH ARE PREREQUISITES OF JUDICIAL ENFORCEMENT
OF ITS ORDER. 

TAKEN TOGETHER AND GIVEN CUMULATIVE EFFECT, OR EVEN IF EACH STANDS
ALONE, THE FOLLOWING INCIDENTS SHOULD BE HELD TO CONSTITUTE PRO TANTO A
WITHHOLDING OF DUE PROCESS OF LAW: 

(1)  THE ARBITRARY REFUSAL AND FAILURE OF THE BOARD TO GIVE
PETITIONERS AN OPPORTUNITY TO BE HEARD DIRECTLY BY THE BOARD ITSELF,
WHICH RENDERED THE BOARD'S ORDER ULTRA VIRES.  SEC. 10(B) OF THE ACT. 
NATIONAL LABOR RELATIONS BOARD V. HOPWOOD RETINNING CO., 98 F.2D 97,
101; INTERSTATE COMMERCE COMM'N V. NORTHERN PACIFIC RY. CO., 216 U.S.
538.    (2)  THE BOARD'S EX PARTE DIRECTIONS THAT THE TRIAL EXAMINER
DENY TO THE PETITIONERS AN OPPORTUNITY TO PRESENT THEIR CASE, EVEN TO
THE EXTENT OF REFUSING TO HEAR WITNESSES PRESENT IN THE HEARING-ROOM,
WAS BOTH A DENIAL OF DUE PROCESS OF LAW AND A NON-COMPLIANCE WITH
JURISDICTIONAL PREREQUISITES UNDER SEC. 10(B) OF THE ACT. 

(3)  A DENIAL OF ADEQUATE AND FAIR HEARING WAS INHERENT IN THE
"TRANSFER" OF THE CASE AWAY FROM THE TRIAL EXAMINER WITHOUT FINDINGS
AND IN THE WITHHOLDING OF AN OPPORTUNITY TO THE PETITIONERS TO BE HEARD
BEFORE THE BOARD WHICH MADE THE FINDINGS WITHOUT HEARING THE EVIDENCE. 
NATIONAL LABOR RELATIONS BOARD V. MACKAY RADIO & TEL. CO., 304 U.S.
333, 350, DISTINGUISHED. 

(4)  THE BOARD'S COURSE OF ACTION IN REPEATEDLY AMENDING ITS
COMPLAINT IN SUBSTANTIAL RESPECTS, DOWN TO THE LAST DAY OF THE
HEARINGS, AND IN FAILING TO GIVE NOTICE OR INFORMATION OF SUCH
AMENDMENTS TO THE BROTHERHOOD, AND IN REFUSING TO GIVE TO THE
PETITIONERS AN ADEQUATE OPPORTUNITY TO MEET AND DEAL WITH THE CHANGED
SITUATIONS PRODUCED BY SUCH UNEXPECTED AMENDMENTS, SHOULD BE TAKEN INTO
ACCOUNT, IN CONJUNCTION WITH THE OTHER FACTS AS TO THE MANNER OF
HEARING AND DETERMINING THIS CASE. 

(5)  WITHOUT NOTICE TO THE PETITIONERS OR THE BROTHERHOOD AND WITHOUT
EVER STATING AN ISSUE AS TO SUCH CONTRACTS, EITHER IN THE COMPLAINT AS
FIRST SERVED OR AS FROM TIME TO TIME AMENDED OR ON THE HEARINGS, THE
BOARD INVALIDATED THE PETITIONERS' COLLECTIVE BARGAINING CONTRACTS WITH
THE BROTHERHOOD AND THE 30,000 EMPLOYEES WHO WERE MEMBERS OF THE
BROTHERHOOD.  MORGAN V. UNITED STATES, 304 U.S. 1; NATIONAL LABOR
RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261; SHIELDS
V. BARROW, 17 HOW.  129, 139. 

(6)  REMOTE HEARSAY AND MERE RUMOR WERE PERMITTED TO DOMINATE THE
TESTIMONY, TO AN EXTENT REPUGNANT TO DUE PROCESS OF LAW.  ST. JOSEPH
STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 73; MORGAN V. UNITED
STATES, 298 U.S. 468, 480. 

III.  THE BOARD'S FINDINGS DISREGARDED THE SUBSTANTIAL EVIDENCE, AND
THE COURT BELOW ADOPTED AN INADEQUATE STANDARD OF REVIEW OF THE BOARD'S
FINDINGS, THEREBY SUSTAINING FINDINGS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE.  WASHINGTON COACH CO. V. NATIONAL LABOR RELATIONS BOARD, 301
U.S. 142, 143; PENNSYLVANIA RAILROAD CO. V. CHAMBERLAIN, 288 U.S. 333,
339-343; NATIONAL LABOR RELATIONS BOARD V. THOMPSON PRODUCTS, 97 F.2D
13, 15; APPALACHIAN ELECTRIC POWER CO. V. NATIONAL LABOR RELATIONS
BOARD, 93 F.2D 985, 989. 

THE TEST OF PERMISSIBLE APPLICATION OF THE NATIONAL LABOR RELATIONS
ACT TO AN INDUSTRIAL ENTERPRISE IS WHETHER "STOPPAGE OF  ...
OPERATIONS BY INDUSTRIAL STRIFE" IN THAT ENTERPRISE WOULD RESULT IN
SUBSTANTIAL INTERRUPTION TO OR INTERFERENCE WITH THE FREE FLOW OF
INTERSTATE COMMERCE.  NATIONAL LABOR RELATIONS BOARD V. JONES &
LAUGHLIN STEEL CORP., 301 U.S. 1, 41.  PETITIONERS' OPERATIONS ARE SUCH
THAT THEIR CESSATION BY REASON OF INDUSTRIAL STRIFE WOULD BLOCK
INTERSTATE TRANSPORTATION TO AND FROM NEW YORK CITY ON SEVERAL MAIN
INTERSTATE RAILROADS; OTHER FACILITIES OF TRANSPORTATION IN THE AREA,
SUCH AS AUTOMOBILES, TRUCKS AND BUSES, AS WELL AS FERRIES AND OTHER
TRANSPORTATION BY WATER, WOULD BE SERIOUSLY HAMPERED; COMMUNICATIONS BY
TELEGRAPH, TELEPHONE AND RADIO WOULD BE SERIOUSLY AFFECTED; AND MANY
OTHER ENTERPRISES, WITH LARGE AND IMPORTANT INTERSTATE OPERATIONS,
WOULD BE FORCED TO SHUT DOWN. 

IN ADDITION, STOPPAGE OF PETITIONERS' OPERATIONS WOULD INTERRUPT A
SUBSTANTIAL FLOW OF MATERIALS AND SUPPLIES INTO THE STATE.  PETITIONERS
ARE THEMSELVES ENGAGED IN INTERSTATE COMMERCE BY REASON OF THEIR
PURCHASE IN OTHER STATES OF LARGE QUANTITIES OF COAL AND OIL. 

PETITIONERS' ARGUMENT THAT THE ACT MAY NOT CONSTITUTIONALLY BE
APPLIED TO THEM, BASED UPON THE LACK OF A FINDING THAT THERE EXISTS A
NECESSITY FOR CONGRESSIONAL REGULATION IN THE PRESENT CASE, IS DIRECTLY
CONTRARY TO THE FINDINGS AND INTENTION OF CONGRESS UNDER THE PRESENT
ACT AND TO THE DECISIONS OF THIS COURT.  SANTA CRUZ FRUIT PACKING CO.
V. NATIONAL LABOR RELATIONS BOARD, 303 U.S. 453. 

PARAGRAPHS 1(F) AND (G) OF THE ORDER OF THE BOARD, WHICH REQUIRE
PETITIONERS TO CEASE AND DESIST FROM GIVING EFFECT TO THEIR CONTRACTS
WITH THE BROTHERHOOD AND FROM RECOGNIZING IT AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, ARE IN ALL RESPECTS VALID
AND PROPER UNDER THE FIFTH AMENDMENT. 

PETITIONERS' CONTENTION THAT THEY WERE NOT REASONABLY APPRISED THAT
THE VALIDITY OF THE CONTRACTS WAS IN ISSUE IN THE PROCEEDINGS CAN NOT
BE SUSTAINED BY THE RECORD. 

EVEN ASSUMING THAT PETITIONERS WERE NOT IN FACT ADEQUATELY INFORMED
PRIOR TO THE ENTRY OF THE BOARD'S ORDER THAT THE VALIDITY OF THE
CONTRACTS WAS IN ISSUE, NEVERTHELESS THEY ARE NOT PREJUDICED.  THEY
MIGHT HAVE APPLIED TO THE BOARD FOR A REHEARING, OR THEY MIGHT HAVE
APPLIED TO THE COURT BELOW PURSUANT TO SUBSECTIONS (E) AND (F) OF SEC.
10 OF THE ACT FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE ON THE CONTRACT
ISSUE.  THEY DID NEITHER. 

PETITIONERS HAVE NO VALID GROUND OF COMPLAINT BASED UPON THE REFUSAL
OF THE BOARD TO HEAR THE PROFFERED TESTIMONY OF TWO WITNESSES ON JULY
6, 1937. 

THE RECORD SHOWS CLEARLY THAT PETITIONERS DID NOT REQUEST AN ORAL
ARGUMENT, AND HAD NO REASON TO EXPECT ONE IN THE ABSENCE OF A REQUEST. 
MOREOVER, THE FIFTH AMENDMENT IS FULLY COMPLIED WITH SINCE PETITIONERS
HAD PREVIOUSLY FILED A LENGTHY BRIEF.  MORGAN V. UNITED STATES, 298
U.S. 468, 481. 

PETITIONERS' CONTENTION THAT THE EVIDENCE DOES NOT SUPPORT THE
FINDINGS IS WITHOUT MERIT.  NOR DOES THE RECORD SUPPORT PETITIONERS'
CONTENTION THAT THE FINDINGS WERE BASED ON HEARSAY EVIDENCE.  THERE WAS
DIRECT TESTIMONY ON EACH ISSUE.  IN ANY EVENT, HEARSAY EVIDENCE WAS
CLEARLY PROPER.  SPILLER V. ATCHISON, T. & S.F. RY. CO., 253 U.S. 117. 

PETITIONERS WERE INDISPENSABLE PARTIES TO THE PROCEEDINGS BEFORE THE
TRIAL EXAMINER AND THE BOARD, AND WERE ENTITLED TO LEGAL NOTICE
THEREOF, IN VIEW OF THE INVALIDATION OF THEIR CONTRACTS BY THE BOARD'S
FINAL ORDER.  NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND
LINES, 303 U.S. 261, DISTINGUISHED.  SEE GENERAL INVESTMENT CO. V. LAKE
SHORE R. CO., 260 U.S. 261, 285-286. 

ALL PERSONS HAVING A SUBSTANTIAL INTEREST OF PROPERTY OR LIBERTY IN
THE SUBJECT MATTER OR OBJECT OF A PROCEEDING ARE INDISPENSABLE PARTIES
TO IT.  MALLOW V. HINDE, 12 WHEAT.  193; BARNEY V. BALTIMORE, 6 WALL. 
280; RUSSELL V. CLARK, 7 CRANCH 69; SHIELDS V. BARROW, 17 HOW.  130;
GREGORY V. STETSON, 133 U.S. 579; SWAN LAND & CATTLE CO. V. FRANK, 148
U.S. 603; RAILROAD CO. V. ORR, 18 WALL.  471; RIBON V. RAILROAD
COMPANIES, 16 WALL.  446; MINNESOTA V. NORTHERN SECURITIES CO., 184
U.S. 199, 235; GARZAT V. DERUBIO, 209 U.S. 283; LEE V. LEHIGH VALLEY
CO., 267 U.S. 542; COMMONWEALTH TRUST CO. V. SMITH, 266 U.S. 152; NILES
BEMENT-POND CO. V. IRON MOULDERS UNION, 254 U.S. 77; EMPLOYERS
REINSURANCE CORP. V. BRYANT, 299 U.S. 374, 381. 

THE "INTERVENTION" REFERRED TO IN SEC. 10(B) OF THE ACT, AND ARTICLE
II, SEC. 19, OF THE RULES OF THE BOARD IS SO ABSOLUTELY DISCRETIONARY
AND SO PARTIAL AND LIMITED, THAT, WHERE SUBSTANTIVE PROPERTY AND
PERSONAL RIGHTS ARE INVOLVED, IT SERIOUSLY FAILS TO SATISFY
CONSTITUTIONAL REQUIREMENTS.  MOREOVER, IN THE PROCEEDING HEREIN
INVOLVED, THREE DAYS OF THE HEARING HAD ELAPSED AND FUNDAMENTAL
TESTIMONY HAD BEEN INTRODUCED BEFORE THE TRIAL EXAMINER PRIOR TO THE
AMENDMENT TO THE COMPLAINT OF JUNE 14, AFFECTING THE PETITIONERS WITHIN
THE ACT. 

NEITHER THE ATTEMPTED SERVICE UPON PETITIONERS OF THE NOTICE OF MAY
12, NOR THAT OF THE AMENDED NOTICE OF MAY 25, 1937, WAS A VALID SERVICE
OF NOTICE OR PROCESS, OR COMPLIANCE WITH SEC. 11(4) OF THE ACT, OR
ARTICLE V OF THE BOARD'S RULES, OR WITH THE CONSTITUTIONAL REQUIREMENTS
OF DUE PROCESS OF LAW.  AND AFTER THE AMENDMENTS OF JUNE 14, 1937, BY
WHICH AMENDMENTS THESE PETITIONERS WERE, FOR THE FIRST TIME, MADE THE
SUBJECT OF CHARGES IN THE COMPLAINT WITHIN THE NATIONAL LABOR RELATIONS
ACT, THERE WAS ABSOLUTELY NO PRETENSE OF AN ATTEMPT IN ANY FORM TO GIVE
NOTICE TO THESE PETITIONERS, OR ANY OF THEM, OF ANY CHARGE IN THE
COMPLAINT AGAINST THEM. 

PETITIONERS WERE DENIED DUE PROCESS OF LAW BY SEC. 1(F) AND (G) OF
THE BOARD'S ORDER, ABROGATING THEIR CONTRACTS AND DIRECTING NON
RECOGNITION OF THE BROTHERHOOD AS REPRESENTATIVES OF THE EMPLOYEES,
WHEN NEITHER THE VALIDITY OF THE CONTRACTS, NOR REPRESENTATION, WAS IN
ISSUE, OR EMBRACED, IN THE CHARGE, THE COMPLAINT OR AMENDED COMPLAINT,
OR RAISED AT THE HEARINGS OR AT ANY OTHER TIME BEFORE THE BOARD'S FINAL
ORDER, AND THE BOARD ITSELF DISMISSED SO MUCH OF THE COMPLAINT AS
INVOLVED COMPANY DOMINATION OR SUPPORT CONTRARY TO SEC. 8(2) OF THE
ACT.  MORGAN V. UNITED STATES, 304 U.S. 1; UNITED STATES V. SEMINOLE
NATION, 299 U.S. 417, 421-422. 

THE ACT DOES NOT AUTHORIZE THE BOARD TO EXERCISE JURISDICTION OVER
THE CONSOLIDATED EDISON AND ITS SUBSIDIARIES AND THEIR LABOR RELATIONS
WITH THEIR EMPLOYEES, OR OVER THE SUBJECT MATTER OF THE COMPLAINT OR
AMENDED COMPLAINT, INCLUDING PETITIONERS' CONTRACTS WHICH THE ORDER
DESTROYED, BECAUSE SAID COMPANIES AND LOCAL UNIONS ARE NOT ENGAGED IN,
AND THEIR LABOR RELATIONS DO NOT BURDEN, "COMMERCE" AS DEFINED IN THE
NATIONAL LABOR RELATIONS ACT, THE BUSINESS OF THE COMPANIES AND THEIR
EMPLOYEES BEING WHOLLY WITHIN NEW YORK, BY THE STATUTES OF WHICH THEY
ARE SUBJECT TO FULL AND COMPLETE REGULATION.  THE ACT, AS HEREIN
APPLIED BY THE BOARD, CONFLICTS WITH THE FIFTH AND TENTH AMENDMENTS TO
THE FEDERAL CONSTITUTION.  CARTER V. CARTER COAL CO., 298 U.S. 238-341;
SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495-550; NATIONAL
LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1;
NATIONAL LABOR RELATIONS BOARD, V. FRUEHAUF TRAILER CO., 301 U.S. 49,
53; NATIONAL LABOR RELATIONS BOARD V. FRIEDMAN-HARRY MARKS CLOTHING
CO., 301 U.S. 58, 72; SANTA CRUZ FRUIT PACKING CO. V. NATIONAL LABOR
RELATIONS BOARD, 303 U.S. 453. 

THE DECISION IN THE SANTA CRUZ FRUIT PACKING CO. CASE, DECIDED BY
THIS COURT MARCH 28, 1938, TWO WEEKS AFTER THE DECISION AND A WEEK
AFTER THE JUDGMENT RENDERED HEREIN BY THE CIRCUIT COURT OF APPEALS,
DOES NOT DISPOSE OF THE QUESTION OF JURISDICTION AS HEREIN PRESENTED,
INASMUCH AS IN THAT CASE ABOUT 37 PER CENT. OF THE TOTAL OUTPUT OF THE
EMPLOYER WAS SHIPPED IN INTERSTATE OR FOREIGN COMMERCE, WHEREIN "THERE
WAS A CONSTANT STREAM OF LOADING AND SHIPPING OF PRODUCTS."  MOREOVER
AN ACTUAL STRIKE HAD BEEN IN PROGRESS, WITH A CESSATION OF THE FLOW OF
EXTENSIVE COMMERCE.  FURTHERMORE THERE WAS NO QUESTION AT ALL RAISED AS
TO THE ADEQUACY OF STATE REGULATION, THERE BEING NO STATE REGULATION OF
THE BUSINESS OF THE EMPLOYER OR OF ITS LABOR RELATIONS WITH ITS
EMPLOYEES. 

WHENEVER FEDERAL POWER IS EXERTED WITHIN WHAT WOULD OTHERWISE BE THE
DOMAIN OF STATE POWER, THE JUSTIFICATION OF THE EXERCISE OF THE FEDERAL
POWER MUST CLEARLY APPEAR, FLORIDA V. UNITED STATES, 282 U.S. 194, 211;
AND FEDERAL POWER SHOULD BE RELINQUISHED TO STATE POWER, WHERE ITS
EXERCISE WOULD INVOLVE CONTROL OF, OR INTERFERENCE WITH, THE INTERNAL
AFFAIRS OF A DOMESTIC CORPORATION OF THE STATE.  PENNSYLVANIA V.
WILLIAMS, 294 U.S. 176, 185; HOPKINS SAVINGS ASSN. V. CLEARY, 296 U.S.
315. 

THE ORDER OF THE BOARD ANNULLING PETITIONERS' CONTRACTS EXCEEDED THE
POWER OF THE BOARD, AND THE PROCEEDINGS LEADING TO THE ORDER DID NOT
COMPLY WITH THE ACT OR THE BOARD'S RULES, AND CONSTITUTED A DENIAL OF A
FAIR AND FULL HEARING AND OF DUE PROCESS OF LAW, IN CONTRAVENTION OF
THE FIFTH AMENDMENT. 

MANY SUBSTANTIAL PARTS OF THE TESTIMONY UPON WHICH THE FINDINGS AND
DECISION OF THE BOARD PURPORT TO REST, AND ITS COURSE OF PROCEEDING TO
ITS FINAL ORDER, VIOLATED BASIC REQUIREMENTS OF EVIDENCE AND PROCEDURE
ESSENTIAL TO DUE PROCESS OF LAW. 

THE BOARD LACKED JURISDICTION TO MAKE AN ORDER ABROGATING THE
CONTRACTS, BECAUSE OF ITS FAILURE TO JOIN THE INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS OR ITS AFFILIATES AS FORMAL PARTIES, OR TO NOTIFY
THEM OF THE COMMENCEMENT OF PROCEEDINGS IN WHICH ACTION AGAINST THEIR
CONTRACTS WAS CONTEMPLATED; AND THE ENTRY OF SUCH ORDER IN THE ABSENCE
OF THE BROTHERHOOD WAS A DENIAL OF DUE PROCESS OF LAW. 

THE BROTHERHOOD LOCALS ARE INDISPENSABLE PARTIES.  THE NECESSITY FOR
THEIR JOINDER IS WELL ESTABLISHED AT COMMON LAW AND EQUITY. 

THE FAILURE TO JOIN THE BROTHERHOOD IS A JURISDICTIONAL DEFECT. 

THE ACT DOES NOT AND CAN NOT DISPENSE WITH THE NECESSITY OF JOINING
THE BROTHERHOOD. 

THE BROTHERHOOD HAS NOT WAIVED ITS RIGHTS BY FILING A PETITION FOR
REVIEW. 

THE BROTHERHOOD HAS NEVER BEEN PROPERLY SERVED WITH NOTICES OF THE
PROCEEDINGS. 

IN ANY EVENT, THE BROTHERHOOD WAS DENIED A HEARING BECAUSE THE
COMPLAINT DID NOT APPRISE IT OF ANY CHARGE INVOLVING ABROGATION OF THE
CONTRACTS, AND NO OPPORTUNITY WAS GIVEN IT TO DEFEND ITS INTERESTS. 

THE ACT DOES NOT AUTHORIZE THE BOARD TO ISSUE ORDERS INVALIDATING OR
ADVERSELY AFFECTING CONTRACTS ENTERED INTO BETWEEN THE EMPLOYER AND A
BONA FIDE LABOR ORGANIZATION NOT CLAIMING THE RIGHT TO EXCLUSIVE
REPRESENTATION OF ALL EMPLOYEES WHERE THERE IS NO SHOWING THAT A
SUBSTANTIAL NUMBER OF ITS MEMBERS HAVE BEEN INFLUENCED BY THE EMPLOYER
INTO JOINING THE ORGANIZATION, AND WHERE THE EMPLOYER HAS BEEN ORDERED
TO TAKE OTHER ACTION FULLY PROTECTING RIGHTS AND PRIVILEGES OF ITS
EMPLOYEES UNDER THE ACT. 

THE BOARD HAD NO JURISDICTION IN THIS CASE, BECAUSE THE RESPONDENT IS
NOT ENGAGED IN "INTERSTATE COMMERCE" WITHIN THE PURVIEW OF THE ACT. 
THE AMERICAN FEDERATION OF LABOR HAS FOSTERED AND IS FOSTERING STATE
LABOR RELATIONS ACTS, AND IS VITALLY INTERESTED IN PROTECTING THE
JURISDICTION OF THE STATE BOARDS AGAINST ENCROACHMENT OF THE NATIONAL
BOARD. 

THE ACT DOES NOT AUTHORIZE THE BOARD TO CONDEMN EXPRESSIONS OF
SYMPATHY BY AN EMPLOYER OR ITS SUPERVISORY EMPLOYEES WITH AIMS AND
PRINCIPLES OF NATIONAL LABOR ORGANIZATION AFFILIATES, IF THERE IS NO
ACTUAL COMPULSION TO JOIN, OR ANY DISCRIMINATORY ACTS THREATENED OR
TAKEN.    MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE UNITED ELECTRICAL AND RADIO WORKERS OF AMERICA, AFFILIATED WITH
THE COMMITTEE FOR INDUSTRIAL ORGANIZATION, FILED A CHARGE, ON MAY 5,
1937, WITH THE NATIONAL LABOR RELATIONS BOARD THAT THE CONSOLIDATED
EDISON COMPANY OF NEW YORK AND ITS AFFILIATED COMPANIES WERE
INTERFERING WITH THE RIGHT OF THEIR EMPLOYEES TO FORM, JOIN OR ASSIST
LABOR ORGANIZATIONS OF THEIR OWN CHOOSING AND WERE CONTRIBUTING
FINANCIAL AND OTHER SUPPORT, IN THE MANNER DESCRIBED, TO THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AN AFFILIATE OF THE
AMERICAN FEDERATION OF LABOR.  THE BOARD ISSUED ITS COMPLAINT AND THE
EMPLOYING COMPANIES, APPEARING SPECIALLY, CHALLENGED ITS JURISDICTION. 
ON THE DENIAL OF THEIR REQUEST THAT THIS QUESTION BE DETERMINED
INITIALLY, THE COMPANIES FILED ANSWERS RESERVING THEIR JURISDICTIONAL
OBJECTIONS.  AFTER THE TAKING OF EVIDENCE BEFORE A TRIAL EXAMINER, THE
PROCEEDING WAS TRANSFERRED TO THE BOARD, WHICH ON NOVEMBER 10, 1937,
MADE ITS FINDINGS AND ORDER. 

THE ORDER DIRECTED THE COMPANIES TO DESIST FROM LABOR PRACTICES FOUND
TO BE UNFAIR AND IN VIOLATION OF SEC. 8(1) AND (3) OF THE NATIONAL
LABOR RELATIONS ACT,  FN1  DIRECTED REINSTATEMENT OF SIX DISCHARGED
EMPLOYEES WITH BACK PAY, AND REQUIRED THE POSTING OF NOTICES TO THE
EFFECT THAT THE COMPANIES WOULD CEASE THE DESCRIBED PRACTICES AND THAT
THEIR EMPLOYEES WERE FREE TO JOIN OR ASSIST ANY LABOR ORGANIZATION FOR
THE PURPOSE OF COLLECTIVE BARGAINING AND WOULD NOT BE SUBJECT TO
DISCHARGE OR TO ANY DISCRIMINATION BY REASON OF THEIR CHOICE.  4
N.L.R.B. 71. 

IT APPEARED THAT BETWEEN MAY 28, 1937, AND JUNE 16, 1937, THE
COMPANIES HAD ENTERED INTO AGREEMENTS WITH THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS AND ITS LOCAL UNIONS, PROVIDING FOR
THE RECOGNITION OF THE BROTHERHOOD AS THE COLLECTIVE BARGAINING AGENCY
FOR THOSE EMPLOYEES WHO WERE ITS MEMBERS, AND CONTAINING VARIOUS
STIPULATIONS AS TO HOURS, WORKING CONDITIONS, WAGES, ETC., AND FOR
ARBITRATION IN THE EVENT OF DISPUTES.  THE BOARD FOUND THAT THESE
CONTRACTS WERE EXECUTED UNDER SUCH CIRCUMSTANCES THAT THEY WERE INVALID
AND REQUIRED THE COMPANIES TO DESIST FROM GIVING THEM EFFECT.  ID.  AT
THE SAME TIME THE BOARD DECIDED THAT THE COMPANIES HAD NOT ENGAGED IN
UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SEC. 8(2) OF THE ACT.  FN2
THAT CLAUSE MAKES IT AN UNFAIR LABOR PRACTICE TO "DOMINATE OR
INTERFERE WITH THE FORMATION OR ADMINISTRATION OF ANY LABOR
ORGANIZATION OR CONTRIBUTE FINANCIAL OR OTHER SUPPORT TO IT." 
ACCORDINGLY THE ORDER DISMISSED THE COMPLAINT, SO FAR AS IT ALLEGED A
VIOLATION OF SEC. 8(2), WITHOUT PREJUDICE.  ID. 

THE COMPANIES PETITIONED THE CIRCUIT COURT OF APPEALS TO SET ASIDE
THE ORDER AND A PETITION FOR THE SAME PURPOSE WAS PRESENTED BY THE
BROTHERHOOD AND ITS LOCALS.  THESE LABOR ORGANIZATIONS HAD NOT BEEN
PARTIES TO THE PROCEEDING BEFORE THE BOARD BUT INTERVENED IN THE COURT
OF APPEALS AS PARTIES AGGRIEVED BY THE INVALIDATION OF THEIR
CONTRACTS.  THE BOARD IN TURN ASKED THE COURT TO ENFORCE THE ORDER. 
THE UNITED ELECTRICAL AND RADIO WORKERS OF AMERICA APPEARED IN SUPPORT
OF THE BOARD.  THE COURT GRANTED THE BOARD'S PETITION.  95 F.2D 390. 
WE ISSUED WRITS OF CERTIORARI UPON APPLICATIONS OF THE COMPANIES (NO.
19) AND OF THE BROTHERHOOD AND ITS LOCALS (NO. 25). 

THE QUESTIONS PRESENTED RELATE (1) TO THE JURISDICTION OF THE BOARD;
(2) TO THE FAIRNESS OF THE HEARING; (3) TO THE SUFFICIENCY OF THE
EVIDENCE TO SUSTAIN THE FINDINGS OF THE BOARD WITH RESPECT TO COERCIVE
PRACTICES, DISCRIMINATION AND THE DISCHARGE OF EMPLOYEES; AND (4) TO
THE INVALIDATION OF THE CONTRACTS WITH THE BROTHERHOOD AND ITS LOCALS. 

THE PERTINENT FACTS WILL BE CONSIDERED IN CONNECTION WITH OUR
DISCUSSION OF THESE QUESTIONS. 

FIRST.  THE JURISDICTION OF THE BOARD.  - THAT IS, WAS THE PROCEEDING
WITHIN THE SCOPE OF ITS AUTHORITY VALIDLY CONFERRED?  THE PETITIONING
COMPANIES CONSTITUTE AN INTEGRATED SYSTEM.  WITH THE EXCEPTION OF ONE
COMPANY WHICH MAINTAINS UNDERGROUND DUCTS FOR ELECTRICAL CONDUCTORS IN
NEW YORK CITY, THEY ARE ALL PUBLIC UTILITIES ENGAGED IN SUPPLYING
ELECTRIC ENERGY, GAS AND STEAM (AND CERTAIN BY-PRODUCTS) WITHIN THAT
CITY AND ADJACENT WESTCHESTER COUNTY.  THE ENTERPRISE IS ONE OF GREAT
MAGNITUDE.  THE COMPANIES SERVE OVER 3,500,000 ELECTRIC AND GAS
CUSTOMERS, - A LARGE MAJORITY USING THE SERVICE FOR RESIDENTIAL AND
DOMESTIC PURPOSES.  IN 1936 THE COMPANIES SUPPLIED ABOUT 97.5 PER CENT.
OF THE TOTAL ELECTRIC ENERGY SOLD IN THE CITY OF NEW YORK AND ABOUT ONE
HUNDRED PER CENT. OF THAT SOLD IN WESTCHESTER COUNTY.  THEY DO NOT SELL
FOR RESALE WITHOUT THE STATE.  THEY HAVE ABOUT 42,000 EMPLOYEES, THEIR
TOTAL PAYROLLS IN 1936, WITH RETIREMENT ANNUITIES AND SEPARATION
ALLOWANCES, AMOUNTING TO NEARLY $82,000,000. 

PETITIONERS URGE THAT THESE PREDOMINANT INTRASTATE ACTIVITIES,
CARRIED ON UNDER THE PLENARY CONTROL OF THE STATE OF NEW YORK IN THE
EXERCISE OF ITS POLICE POWER, ARE NOT SUBJECT TO FEDERAL AUTHORITY.  IT
DOES NOT FOLLOW, HOWEVER, BECAUSE THESE OPERATIONS OF THE UTILITIES ARE
OF VAST CONCERN TO THE PEOPLE OF THE CITY AND STATE OF NEW YORK, THAT
THEY DO NOT ALSO INVOLVE THE INTERESTS OF INTERSTATE AND FOREIGN
COMMERCE IN SUCH A DEGREE THAT THE FEDERAL GOVERNMENT WAS ENTITLED TO
INTERVENE FOR THEIR PROTECTION.  FOR EXAMPLE, THE GOVERNANCE OF THE
INTRASTATE RATES OF A RAILROAD COMPANY MAY BE OF GREAT IMPORTANCE TO
THE STATE AND AN APPROPRIATE OBJECT OF THE EXERTION OF ITS POWER, BUT
THE FEDERAL GOVERNMENT MAY STILL INTERVENE TO PROTECT INTERSTATE
COMMERCE FROM INJURY CAUSED BY INTRASTATE OPERATIONS AND TO THAT END
MAY OVERRIDE INTRASTATE RATES AND SUPPLY A DOMINANT FEDERAL RULE.  THE
SHREVEPORT CASE, 234 U.S. 342; WISCONSIN RAILROAD COMM'N V. CHICAGO, B.
& Q.R. CO., 257 U.S. 563; NEW YORK V. UNITED STATES, 257 U.S. 591. 
SEE, ALSO, NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL
CORP., 301 U.S. 1, 37-41. 

IN THE PRESENT INSTANCE WE MAY LAY ON ONE SIDE, AS DID THE CIRCUIT
COURT OF APPEALS, THE MERE PURCHASES BY THE UTILITIES OF THE SUPPLIES
OF OIL, COAL, ETC., ALTHOUGH VERY LARGE, WHICH COME FROM WITHOUT THE
STATE AND ARE CONSUMED IN THE GENERATION AND DISTRIBUTION OF ELECTRIC
ENERGY AND GAS.  APART FROM THOSE PURCHASES, THERE IS UNDISPUTED AND
IMPRESSIVE EVIDENCE OF THE DEPENDENCE OF INTERSTATE AND FOREIGN
COMMERCE UPON THE CONTINUITY OF THE SERVICE OF THE PETITIONING
COMPANIES.  THEY SUPPLY ELECTRIC ENERGY TO THE NEW YORK CENTRAL
RAILROAD COMPANY, THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD
COMPANY, AND THE HUDSON AND MANHATTAN RAILROAD COMPANY (OPERATING A
TUNNEL SERVICE TO NEW JERSEY) FOR THE LIGHTING AND OPERATION OF
PASSENGER AND FREIGHT TERMINALS, AND FOR THE MOVEMENT OF INTERSTATE
TRAINS.  THEY SUPPLY THE PORT OF NEW YORK AUTHORITY WITH ELECTRIC
ENERGY FOR THE OPERATION OF ITS TERMINAL AND THE HOLLAND TUNNEL.  THEY
SUPPLY A MAJORITY OF THE PIERS OF TRANSATLANTIC AND COASTWISE STEAMSHIP
COMPANIES ALONG THE NORTH AND EAST RIVERS, WITHIN THE CITY OF NEW YORK,
FOR LIGHTING, FREIGHT HANDLING AND RELATED USES.  THEY SERVE THE
WESTERN UNION TELEGRAPH COMPANY, THE POSTAL TELEGRAPH COMPANY, AND THE
NEW YORK TELEPHONE COMPANY WITH POWER FOR TRANSMITTING AND RECEIVING
MESSAGES, LOCAL AND INTERSTATE.  THEY SUPPLY ELECTRIC ENERGY FOR THE
TRANSATLANTIC RADIO SERVICE OF THE RADIO CORPORATION OF AMERICA.  THEY
PROVIDE ELECTRIC ENERGY FOR THE FLOYD BENNETT AIR FIELD IN BROOKLYN FOR
VARIOUS PURPOSES, INCLUDING FIELD ILLUMINATION, A RADIO BEAM AND
OBSTRUCTION LIGHTING.  UNDER CONTRACTS WITH THE FEDERAL GOVERNMENT THEY
SUPPLY ELECTRIC ENERGY FOR SIX LIGHTHOUSES AND EIGHT BEACON OR HARBOR
LIGHTS; ALSO LIGHT, HEAT AND POWER FOR THE GENERAL POST OFFICE AND
BRANCH POST OFFICES, THE UNITED STATES BARGE OFFICE, THE CUSTOMS HOUSE,
APPRAISERS' WAREHOUSE AND VARIOUS FEDERAL OFFICE BUILDINGS. 

IT CANNOT BE DOUBTED THAT THESE ACTIVITIES, WHILE CONDUCTED WITHIN
THE STATE, ARE MATTERS OF FEDERAL CONCERN.  IN THEIR TOTALITY THEY RISE
TO SUCH A DEGREE OF IMPORTANCE THAT THE FACT THAT THEY INVOLVE BUT A
SMALL PART OF THE ENTIRE SERVICE RENDERED BY THE UTILITIES IN THEIR
EXTENSIVE BUSINESS IS IMMATERIAL IN THE CONSIDERATION OF THE EXISTENCE
OF THE FEDERAL PROTECTIVE POWER.  THE EFFECT UPON INTERSTATE AND
FOREIGN COMMERCE OF AN INTERRUPTION THROUGH INDUSTRIAL STRIFE OF THE
SERVICE OF THE PETITIONING COMPANIES WAS VIVIDLY DESCRIBED BY THE
CIRCUIT COURT OF APPEALS IN THESE WORDS:  "INSTANTLY, THE TERMINALS AND
TRAINS OF THREE GREAT INTERSTATE RAILROADS WOULD CEASE TO OPERATE;
INTERSTATE COMMUNICATION BY TELEGRAPH, TELEPHONE, AND RADIO WOULD STOP;
LIGHTS MAINTAINED AS AIDS TO NAVIGATION WOULD GO OUT; AND THE BUSINESS
OF INTERSTATE FERRIES AND OF FOREIGN STEAMSHIPS, WHOSE DOCKS ARE
LIGHTED AND OPERATED BY ELECTRIC ENERGY, WOULD BE GREATLY IMPEDED. 
SUCH EFFECTS WE CANNOT REGARD AS INDIRECT AND REMOTE."  95 F.2D 390,
394. 

IF INDUSTRIAL STRIFE DUE TO UNFAIR LABOR PRACTICES ACTUALLY BROUGHT
ABOUT SUCH A CATASTROPHE, WE SUPPOSE THAT NO ONE WOULD QUESTION THE
AUTHORITY OF THE FEDERAL GOVERNMENT TO INTERVENE IN ORDER TO FACILITATE
THE SETTLEMENT OF THE DISPUTE AND THE RESUMPTION OF THE ESSENTIAL
SERVICE TO INTERSTATE AND FOREIGN COMMERCE.  BUT IT CANNOT BE
MAINTAINED THAT THE EXERTION OF FEDERAL POWER MUST AWAIT THE DISRUPTION
OF THAT COMMERCE.  CONGRESS WAS ENTITLED TO PROVIDE REASONABLE
PREVENTIVE MEASURES AND THAT WAS THE OBJECT OF THE NATIONAL LABOR
RELATIONS ACT. 

CONGRESS DID NOT ATTEMPT TO DEAL WITH PARTICULAR INSTANCES.  IT
CREATED FOR THAT PURPOSE THE NATIONAL LABOR RELATIONS BOARD.  IN
CONFERRING AUTHORITY UPON THAT BOARD, CONGRESS HAD REGARD TO THE
LIMITATIONS OF THE CONSTITUTIONAL GRANT OF FEDERAL POWER.  THUS, THE
"COMMERCE" CONTEMPLATED BY THE ACT (ASIDE FROM THAT WITHIN A TERRITORY
OR THE DISTRICT OF COLUMBIA) IS INTERSTATE AND FOREIGN COMMERCE.  THE
UNFAIR LABOR PRACTICES WHICH THE ACT PURPORTS TO REACH ARE THOSE
AFFECTING THAT COMMERCE.  SEC. 10(A).  FN3  IN DETERMINING THE
CONSTITUTIONAL BOUNDS OF THE AUTHORITY CONFERRED, WE HAVE APPLIED THE
WELL-SETTLED PRINCIPLE THAT IT IS THE EFFECT UPON INTERSTATE OR FOREIGN
COMMERCE, NOT THE SOURCE OF THE INJURY, WHICH IS THE CRITERION.  IT IS
NOT NECESSARY TO REPEAT WHAT WE SAID UPON THIS POINT IN THE REVIEW OF
OUR DECISIONS IN THE CASE OF NATIONAL LABOR RELATIONS BOARD V. JONES &
LAUGHLIN STEEL CORP., SUPRA.  AND WHETHER OR NOT PARTICULAR ACTION IN
THE CONDUCT OF INTRASTATE ENTERPRISES DOES AFFECT THAT COMMERCE IN SUCH
A CLOSE AND INTIMATE FASHION AS TO BE SUBJECT TO FEDERAL CONTROL, IS
LEFT TO BE DETERMINED AS INDIVIDUAL CASES ARISE.  ID., SEE, ALSO, SANTA
CRUZ PACKING CO. V. NATIONAL LABOR RELATIONS BOARD, 303 U.S. 453, 466,
467. 

PETITIONERS URGE THAT THE LEGISLATURE OF NEW YORK HAS ENACTED
COMPREHENSIVE AND ADEQUATE MEASURES TO PROTECT AGAINST THE INTERRUPTION
OF PETITIONERS' SERVICES THROUGH LABOR DISPUTES.  NOT ONLY HAS THE
STATE LONG HAD LEGISLATION RELATING TO THE OPERATIONS OF PUBLIC UTILITY
COMPANIES (PUBLIC SERVICE LAW) BUT THE LEGISLATURE HAS RECENTLY ENACTED
THE NEW YORK STATE LABOR RELATIONS ACT (LAWS OF 1937, CHAPTER 443,
EFFECTIVE JULY 1, 1937; ARTICLE 20 OF THE LABOR LAW) WHICH PROVIDES A
COMPLETE SUPERVISION OF LABOR RELATIONS FOR EMPLOYERS IN INTRASTATE
ENTERPRISES SIMILAR TO THAT SET UP BY THE NATIONAL LABOR RELATIONS ACT
WITH RESPECT TO INTERSTATE OR FOREIGN COMMERCE.  THE STATE ACT, WITH
ADDED DETAILS, FOLLOWS CLOSELY THE NATIONAL ACT.  THE STATE ACT
PROVIDES FOR COLLECTIVE BARGAINING, INCLUDING THE CONDUCT OF ELECTIONS
TO DETERMINE THE REPRESENTATION OF EMPLOYEES, AND EMPOWERS THE STATE
LABOR RELATIONS BOARD TO PREVENT UNFAIR LABOR PRACTICES.  IN SEEKING TO
AVOID A CLASH WITH FEDERAL AUTHORITY, THE STATE ACT IS MADE
INAPPLICABLE "TO THE EMPLOYEES OF ANY EMPLOYER WHO CONCEDES TO AND
AGREES WITH THE BOARD THAT SUCH EMPLOYEES ARE SUBJECT TO AND PROTECTED
BY THE PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT OR THE FEDERAL
RAILWAY LABOR ACT."  FN4  IT IS MANIFEST THAT THE ENACTMENT OF THIS
STATE LAW COULD NOT OVERRIDE THE CONSTITUTIONAL AUTHORITY OF THE
FEDERAL GOVERNMENT.  THE STATE COULD NOT ADD TO OR DETRACT FROM THAT
AUTHORITY.  BUT IT IS ALSO TRUE THAT WHERE THE EMPLOYERS ARE NOT
THEMSELVES ENGAGED IN INTERSTATE OR FOREIGN COMMERCE, AND THE AUTHORITY
OF THE NATIONAL LABOR RELATIONS BOARD IS INVOKED TO PROTECT THAT
COMMERCE FROM INTERFERENCE OR INJURY ARISING FROM THE EMPLOYERS'
INTRASTATE ACTIVITIES, THE QUESTION WHETHER THE ALLEGED UNFAIR LABOR
PRACTICES DO ACTUALLY THREATEN INTERSTATE OR FOREIGN COMMERCE IN A
SUBSTANTIAL MANNER IS NECESSARILY PRESENTED.  AND IN DETERMINING THAT
FACTUAL QUESTION REGARD SHOULD BE HAD TO ALL THE EXISTING
CIRCUMSTANCES, INCLUDING THE BEARING AND EFFECT OF ANY PROTECTIVE
ACTION TO THE SAME END ALREADY TAKEN UNDER STATE AUTHORITY.  THE
JUSTIFICATION FOR THE EXERCISE OF FEDERAL POWER SHOULD CLEARLY APPEAR. 
FLORIDA V. UNITED STATES, 282 U.S. 194, 211, 212.  BUT THE QUESTION IN
SUCH A CASE WOULD RELATE NOT TO THE EXISTENCE OF THE FEDERAL POWER BUT
TO THE PROPRIETY OF ITS EXERCISE ON A GIVEN STATE OF FACTS. 

IN THE INSTANT CASE, NOT ONLY WAS THIS PROCEEDING INSTITUTED BEFORE
THE NEW YORK LABOR RELATIONS ACT BECAME EFFECTIVE BUT, SO FAR AS
APPEARS, NO PROCEEDINGS HAVE BEEN TAKEN UNDER IT IN RELATION TO THE
UNFAIR LABOR PRACTICES HERE ALLEGED.  FOR THE PRESENT PURPOSE, IT IS
SUFFICIENT TO SAY THAT THERE HAS BEEN NO EXERTION OF STATE AUTHORITY
WHICH CAN BE TAKEN TO REMOVE THE NEED FOR THE EXERTION OF FEDERAL
AUTHORITY TO PROTECT INTERSTATE AND FOREIGN COMMERCE.  THE EXERCISE OF
THE FEDERAL POWER TO PROTECT INTERSTATE AND FOREIGN COMMERCE FROM
INJURY DOES NOT DEPEND UPON A CLASH WITH STATE ACTION AND NEED NOT
AWAIT THE EXERCISE OF STATE AUTHORITY.    WE CONCLUDE THAT THE BOARD
HAD AUTHORITY TO ENTERTAIN THIS PROCEEDING AGAINST THE PETITIONING
COMPANIES. 

SECOND.  THE FAIRNESS OF THE HEARING, - PROCEDURAL DUE PROCESS.  -
APART FROM THE ACTION OF THE BOARD WITH RESPECT TO THE BROTHERHOOD
CONTRACTS, WHICH WE SHALL CONSIDER SEPARATELY, THE CONTENTIONS UNDER
THIS HEAD RELATE (1) TO AMENDMENTS OF THE COMPLAINT, (2) TO THE REFUSAL
TO HEAR CERTAIN WITNESSES, AND (3) TO THE TRANSFER OF THE PROCEEDING TO
THE BOARD AND ITS DETERMINATION WITHOUT AN INTERMEDIATE REPORT OR
OPPORTUNITY FOR HEARING UPON PROPOSED FINDINGS. 

THE ORIGINAL COMPLAINT RELATED TO THE DISCHARGE OF FIVE EMPLOYEES AND
ALLEGED UNFAIR LABOR PRACTICES IN THE EMPLOYMENT OF INDUSTRIAL SPIES
AND UNDERCOVER OPERATIVES, IN ALLOWING EMPLOYEES TO SOLICIT MEMBERSHIP
IN THE BROTHERHOOD DURING WORKING HOURS AND ON THE PROPERTY OF THE
COMPANIES, IN COMPENSATING SUCH EMPLOYEES WHILE SO ENGAGED AND IN
FURNISHING THEM OFFICE SPACE AND FINANCIAL ASSISTANCE WHILE REFUSING
SUCH PRIVILEGES TO THE UNITED, AND GENERALLY IN COERCION OF THE
EMPLOYEES TO JOIN THE BROTHERHOOD.  THE AMENDMENTS WERE MADE FROM TIME
TO TIME IN THE COURSE OF THE HEARING.  IN PARTICULAR, THEY ADDED
ANOTHER EMPLOYEE TO THOSE ALLEGED TO HAVE BEEN WRONGFULLY DISCHARGED
AND SUPPLIED AN OMITTED ALLEGATION THAT THE OTHER UNFAIR LABOR
PRACTICES AFFECTED COMMERCE.  AT THE CLOSE OF THE EVIDENCE THE TRIAL
EXAMINER GRANTED A MOTION TO CONFORM THE PLEADINGS TO THE PROOF ON THE
STATEMENT OF THE ATTORNEY FOR THE BOARD THAT NO IMPORTANT CHANGE WAS
INTENDED AND THAT THE AMENDMENT WAS SOUGHT MERELY TO MAKE MORE DEFINITE
AND CERTAIN WHAT APPEARED IN THE COMPLAINT.  THESE WERE DISCRETIONARY
RULINGS WHICH AFFORD NO GROUND FOR CHALLENGING THE VALIDITY OF THE
HEARING. 

A MORE SERIOUS QUESTION GROWS OUT OF THE REFUSAL TO RECEIVE THE
TESTIMONY OF CERTAIN WITNESSES.  THE TAKING OF EVIDENCE BEGAN ON JUNE
3, 1937, AND WAS CONTINUED FROM TIME TO TIME UNTIL JUNE 23D WHEN THE
ATTORNEY FOR THE BOARD UNEXPECTEDLY ANNOUNCED THAT ITS CASE WOULD
PROBABLY BE CLOSED ON THE FOLLOWING DAY.  AT THAT TIME THE BOARD
COMPLETED ITS PROOF, WITH THE RESERVATION OF ONE MATTER, AND AT THE
REQUEST OF THE COMPANIES' COUNSEL THE HEARING WAS ADJOURNED UNTIL JULY
6TH IN ORDER THAT MR. CARLISLE, THE CHAIRMAN OF THE BOARD OF TRUSTEES
OF THE CONSOLIDATED EDISON COMPANY, AND MR. DEAN, THE VICE PRESIDENT OF
ONE OF ITS AFFILIATES, WHO WERE THEN UNAVAILABLE, COULD TESTIFY.  IN
RESPONSE TO THE EXAMINER'S INQUIRY, THE COMPANIES' COUNSEL STATED THAT
THE DIRECT EXAMINATION OF ALL WITNESSES ON THEIR BEHALF WOULD NOT
OCCUPY MORE THAN A DAY.  ON JULY 6TH THE TESTIMONY OF MR. CARLISLE AND
MR. DEAN WAS TAKEN AND THE COMPANIES ALSO OFFERED THE TESTIMONY OF TWO
OTHER WITNESSES (THEN PRESENT IN THE HEARING ROOM) IN RELATION TO THE
DISCHARGE OF THE EMPLOYEE WITH RESPECT TO WHOM THE COMPLAINT HAD BEEN
AMENDED AS ABOVE STATED.  THE EXAMINER REFUSED TO RECEIVE THIS
TESTIMONY FOLLOWING A RULING OF THE BOARD (MADE IN THE COURSE OF
CORRESPONDENCE WITH THE COMPANIES' COUNSEL DURING THE ADJOURNMENT) TO
THE EFFECT THAT NO OTHER TESTIMONY THAN THAT OF MR. CARLISLE AND MR.
DEAN WOULD BE RECEIVED ON THE ADJOURNED DAY.  AN OFFER OF PROOF WAS
MADE WHICH SHOWED THE TESTIMONY TO BE HIGHLY IMPORTANT WITH RESPECT TO
THE REASONS FOR THE DISCHARGE.  IT WAS BRIEF AND COULD HAVE BEEN
RECEIVED AT ONCE WITHOUT ANY UNDUE DELAY IN THE CLOSING OF THE
HEARING. 

WE AGREE WITH THE COURT OF APPEALS THAT THE REFUSAL TO RECEIVE THE
TESTIMONY WAS UNREASONABLE AND ARBITRARY.  ASSUMING, AS THE BOARD
CONTENDS, THAT IT HAD A DISCRETIONARY CONTROL OVER THE CONDUCT OF THE
PROCEEDING, WE CANNOT BUT REGARD THIS ACTION AS AN ABUSE OF
DISCRETION.  BUT THE STATUTE DID NOT LEAVE THE PETITIONERS WITHOUT
REMEDY.  THE COURT BELOW POINTED TO THAT REMEDY, THAT IS, TO APPLY TO
THE COURT OF APPEALS FOR LEAVE TO ADDUCE THE ADDITIONAL EVIDENCE; ON
SUCH AN APPLICATION AND A SHOWING OF REASONABLE GROUNDS THE COURT COULD
HAVE ORDERED IT TO BE TAKEN.  SEC. 10(E)(F).  FN5  PETITIONERS DID NOT
AVAIL THEMSELVES OF THIS APPROPRIATE PROCEDURE. 

SHORTLY AFTER THE EVIDENCE WAS CLOSED, THE COUNSEL FOR THE
PETITIONING COMPANIES FILED A BRIEF WITH THE TRIAL EXAMINER.  SEVERAL
WEEKS LATER, ON SEPTEMBER 29TH, THE PROCEEDING WAS TRANSFERRED TO THE
BOARD.  THE EXAMINER MADE NO TENTATIVE REPORT OR FINDINGS AND THERE WAS
NO OPPORTUNITY FOR A HEARING BEFORE THE BOARD ITSELF.  IT MUST BE
ASSUMED, HOWEVER, THAT THE BRIEF FOR THE COMPANIES WAS TRANSMITTED TO
THE BOARD AND WAS CONSIDERED BY IT IN MAKING ITS DECISION.  THE BOARD
CONTENDS THAT THE COMPANIES SUBMITTED THEIR BRIEF WITHOUT ASKING FOR AN
ORAL ARGUMENT, AS CONTEMPLATED BY THE BOARD'S RULE (RULE 29), OR FOR AN
INTERMEDIATE REPORT, AND HENCE THAT THEY ARE NOT IN A POSITION TO
COMPLAIN ON EITHER SCORE.  THE BOARD ALSO INSISTS THAT AFTER THE
TRANSFER OF THE PROCEEDING, IT WAS WITHIN THE DISCRETION OF THE BOARD
TO ADOPT ANY ONE OF THE COURSES OF PROCEDURE ENUMERATED IN ITS RULE
(RULE 38)  FN6  OF WHICH PETITIONERS WERE INFORMED BY THE SERVICE OF A
COPY OF THE BOARD'S RULES AT THE BEGINNING OF THE PROCEEDING. 
PETITIONERS SAY THAT AT THE VERY OUTSET THEY HAD ASKED, ON THEIR
SPECIAL APPEARANCE, FOR A HEARING BEFORE THE BOARD UPON THE QUESTION OF
ITS JURISDICTION AND THAT ALL PROCEEDINGS BE TRANSFERRED TO THE BOARD,
AND THAT THE RULES INDUCED THE BELIEF THAT AFTER THE TRANSFER TO THE
BOARD AT THE CLOSE OF THE EVIDENCE THERE WOULD BE FURTHER PROCEEDINGS
AT WHICH THEY WOULD BE HEARD.  BUT WE CANNOT SAY THAT THE RULES
JUSTIFIED THAT EXPECTATION OR DISPENSED WITH THE NECESSITY, AFTER THE
TRANSFER, OF A SUITABLE REQUEST BY THE PETITIONERS FOR SUCH ADDITIONAL
HEARING AS THEY DESIRED.  IT DOES NOT APPEAR THAT SUCH REQUEST WAS
MADE. 

IT CANNOT BE SAID THAT THE BOARD DID NOT CONSIDER THE EVIDENCE OR THE
PETITIONERS' BRIEF OR FAILED TO MAKE ITS OWN FINDINGS IN THE LIGHT OF
THAT EVIDENCE AND ARGUMENT.  IT WOULD HAVE BEEN BETTER PRACTICE FOR THE
BOARD TO HAVE DIRECTED THE EXAMINER TO MAKE A TENTATIVE REPORT WITH AN
OPPORTUNITY FOR EXCEPTIONS AND ARGUMENT THEREON.  BUT, ASIDE FROM THE
QUESTION OF THE BROTHERHOOD CONTRACTS, WE FIND NO BASIS FOR CONCLUDING
THAT THE ISSUES AND CONTENTIONS WERE NOT CLEARLY DEFINED AND THAT THE
PETITIONING COMPANIES WERE NOT FULLY ADVISED OF THEM.  NATIONAL LABOR
RELATIONS BOARD V. MACKAY RADIO & TELEGRAPH CO., 304 U.S. 333, 350,
351.  THE POINTS RAISED AS TO THE LACK OF PROCEDURAL DUE PROCESS IN
THIS RELATION CANNOT BE SUSTAINED. 

THIRD.  THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN THE FINDINGS OF
THE BOARD WITH RESPECT TO COERCIVE PRACTICES, DISCRIMINATION AND
DISCHARGE OF EMPLOYEES.  - THE COMPANIES CONTEND THAT THE COURT OF
APPEALS MISCONCEIVED ITS POWER TO REVIEW THE FINDINGS AND, INSTEAD OF
SEARCHING THE RECORD TO SEE IF THEY WERE SUSTAINED BY "SUBSTANTIAL"
EVIDENCE, MERELY CONSIDERED WHETHER THE RECORD WAS "WHOLLY BARREN OF
EVIDENCE" TO SUPPORT THEM.  WE AGREE THAT THE STATUTE, IN PROVIDING
THAT "THE FINDINGS OF THE BOARD AS TO THE FACTS, IF SUPPORTED BY
EVIDENCE, SHALL BE CONCLUSIVE," MEANS SUPPORTED BY SUBSTANTIAL
EVIDENCE.  WASHINGTON, V. & M. COACH CO. V. NATIONAL LABOR RELATIONS
BOARD, 301 U.S. 142, 147.  SUBSTANTIAL EVIDENCE IS MORE THAN A MERE
SCINTILLA.  IT MEANS SUCH RELEVANT EVIDENCE AS A REASONABLE MIND MIGHT
ACCEPT AS ADEQUATE TO SUPPORT A CONCLUSION.  APPALACHIAN ELECTRIC POWER
CO. V. NATIONAL LABOR RELATIONS BOARD, 93 F.2D 985, 989; NATIONAL LABOR
RELATIONS BOARD V. THOMPSON PRODUCTS, 97 F.2D 13, 15; BALLSTON
STILLWATER CO. V. NATIONAL LABOR RELATIONS BOARD, 98 F.2D 758, 760.  WE
DO NOT THINK THAT THE COURT OF APPEALS INTENDED TO APPLY A DIFFERENT
TEST.  IN SAYING THAT THE RECORD WAS NOT "WHOLLY BARREN OF EVIDENCE" TO
SUSTAIN THE FINDING OF DISCRIMINATION, WE THINK THAT THE COURT REFERRED
TO SUBSTANTIAL EVIDENCE.  BALLSTON-STILLWATER CO. V. NATIONAL LABOR
RELATIONS BOARD, SUPRA. 

THE COMPANIES URGE THAT THE BOARD RECEIVED "REMOTE HEARSAY" AND "MERE
RUMOR."  THE STATUTE PROVIDES THAT "THE RULES OF EVIDENCE PREVAILING IN
COURTS OF LAW AND EQUITY SHALL NOT BE CONTROLLING."  FN7  THE OBVIOUS
PURPOSE OF THIS AND SIMILAR PROVISIONS IS TO FREE ADMINISTRATIVE BOARDS
FROM THE COMPULSION OF TECHNICAL RULES SO THAT THE MERE ADMISSION OF
MATTER WHICH WOULD BE DEEMED INCOMPETENT IN JUDICIAL PROCEEDINGS WOULD
NOT INVALIDATE THE ADMINISTRATIVE ORDER.  INTERSTATE COMMERCE COMM'N V.
BAIRD, 194 U.S. 25, 44; INTERSTATE COMMERCE COMM'N V. LOUISVILLE &
NASHVILLE R. CO., 227 U.S. 88, 93; UNITED STATES V. ABILENE & SOUTHERN
RY. CO., 265 U.S. 274, 288; TAGG BROS. & MOORHEAD V. UNITED STATES, 280
U.S. 420, 442.  BUT THIS ASSURANCE OF A DESIRABLE FLEXIBILITY IN
ADMINISTRATIVE PROCEDURE DOES NOT GO SO FAR AS TO JUSTIFY ORDERS
WITHOUT A BASIS IN EVIDENCE HAVING RATIONAL PROBATIVE FORCE.  MERE
UNCORROBORATED HEARSAY OR RUMOR DOES NOT CONSTITUTE SUBSTANTIAL
EVIDENCE. 

APPLYING THESE PRINCIPLES, WE ARE UNABLE TO CONCLUDE THAT THE BOARD'S
FINDINGS IN RELATION TO THE MATTERS NOW UNDER CONSIDERATION DID NOT
HAVE THE REQUISITE FOUNDATION.  WITH RESPECT TO INDUSTRIAL ESPIONAGE,
THE COMPANIES SAY THAT THE EMPLOYMENT OF "OUTSIDE INVESTIGATING
AGENCIES" OF ANY SORT HAD BEEN VOLUNTARILY DISCONTINUED PRIOR TO
NOVEMBER, 1936, BUT THE BOARD RIGHTLY URGES THAT IT WAS ENTITLED TO BAR
ITS RESUMPTION.  COMPARE FEDERAL TRADE COMM'N V. GOODYEAR TIRE & RUBBER
CO., 304 U.S. 257, 260.  IN RELATION TO THE OTHER CHARGES OF UNFAIR
LABOR PRACTICES, THE COMPANIES POINT TO THE STATEMENT OF MR. CARLISLE
AT A LARGE MEETING OF THE EMPLOYEES IN APRIL, 1937, WHEN THE
RECOGNITION OF THE BROTHERHOOD WAS UNDER DISCUSSION, THAT THE EMPLOYEES
WERE ABSOLUTELY FREE TO JOIN ANY LABOR ORGANIZATION,  - THAT THEY COULD
DO AS THEY PLEASED.  DESPITE THIS STATEMENT AND ASSUMING, AS COUNSEL
FOR THE COMPANIES URGES, THAT WHERE TWO INDEPENDENT LABOR ORGANIZATIONS
SEEK RECOGNITION, IT CANNOT BE SAID TO BE AN UNFAIR LABOR PRACTICE FOR
THE EMPLOYER MERELY TO EXPRESS PREFERENCE OF ONE ORGANIZATION OVER THE
OTHER, BY REASON OF THE FORMER'S ANNOUNCED POLICIES, IN THE ABSENCE OF
ANY ATTEMPTS AT INTIMIDATION OR COERCION, WE THINK THAT THERE WAS STILL
SUBSTANTIAL EVIDENCE THAT SUCH ATTEMPTS WERE MADE IN THIS CASE. 

IT WOULD SERVE NO USEFUL PURPOSE TO LENGTHEN THIS OPINION BY
DETAILING THE TESTIMONY.  WE ARE SATISFIED THAT THE PROVISIONS OF THE
ORDER REQUIRING THE COMPANIES TO DESIST FROM THE DISCRIMINATING AND
COERCIVE PRACTICES DESCRIBED IN SUBDIVISIONS (A) TO (E) INCLUSIVE AND
IN SUBDIVISION (H) OF PARAGRAPH ONE OF ITS ORDER,  FN8  AND TO
REINSTATE THE SIX EMPLOYEES MENTIONED WITH BACK PAY, AND TO POST
NOTICES ASSURING FREEDOM FROM DISCRIMINATION AND COERCION AS PROVIDED
IN PARAGRAPH TWO OF THE ORDER, RESTED UPON FINDINGS SUSTAINED BY THE
EVIDENCE AND THAT THE DECREE OF THE COURT OF APPEALS ENFORCING THE
ORDER IN THESE RESPECTS SHOULD BE AFFIRMED. 

FOURTH.  THE BROTHERHOOD CONTRACTS.  - THE FINDINGS OF THE BOARD THAT
THE CONTRACTS WITH THE BROTHERHOOD AND ITS LOCALS WERE INVALID, AND THE
BOARD'S ORDER REQUIRING THE COMPANIES TO DESIST FROM GIVING EFFECT TO
THESE CONTRACTS, PRESENT QUESTIONS OF MAJOR IMPORTANCE.  WE APPROACH
THEM IN THE LIGHT OF THREE CARDINAL CONSIDERATIONS.  ONE IS THAT THE
BROTHERHOOD AND ITS LOCALS ARE LABOR ORGANIZATIONS INDEPENDENTLY
ESTABLISHED AS AFFILIATES OF THE AMERICAN FEDERATION OF LABOR AND ARE
NOT UNDER THE CONTROL OF THE EMPLOYING COMPANIES.  SO FAR AS THERE WAS
ANY CHARGE, UNDER SEC. 8(2) OF THE ACT, THAT THE EMPLOYING COMPANIES
HAD DOMINATED OR INTERFERED WITH THE FORMATION OR ADMINISTRATION OF ANY
LABOR ORGANIZATION OR HAD CONTRIBUTED FINANCIAL OR OTHER SUPPORT TO IT,
THE CHARGE WAS DISMISSED.  ANOTHER CONSIDERATION IS THAT THE CONTRACTS
RECOGNIZE THE RIGHT OF EMPLOYEES TO BARGAIN COLLECTIVELY; THEY
RECOGNIZE THE BROTHERHOOD AS THE COLLECTIVE BARGAINING AGENCY FOR THE
EMPLOYEES WHO BELONG TO IT, AND THE BROTHERHOOD AGREES FOR ITSELF AND
ITS MEMBERS NOT TO INTIMIDATE OR COERCE EMPLOYEES INTO MEMBERSHIP IN
THE BROTHERHOOD AND NOT TO SOLICIT MEMBERSHIP ON THE TIME OR PROPERTY
OF THE EMPLOYERS.  THE THIRD CONSIDERATION IS THAT THE CONTRACTS
CONTAIN IMPORTANT PROVISIONS WITH REGARD TO HOURS, WORKING CONDITIONS,
WAGES, SICKNESS, DISABILITY, ETC., AND ALSO PROVIDE AGAINST STRIKES OR
LOCKOUTS AND FOR THE ADJUSTMENT AND ARBITRATION OF LABOR DISPUTES, THUS
CONSTITUTING INSURANCE AGAINST THE DISRUPTION OF THE SERVICE OF THE
COMPANIES TO INTERSTATE OR FOREIGN COMMERCE THROUGH AN OUTBREAK OF
INDUSTRIAL STRIFE.  IT IS NOT CONTENDED THAT THESE PROVISIONS ARE
UNREASONABLE OR OPPRESSIVE BUT ON THE CONTRARY IT WAS VIRTUALLY
CONCEDED AT THE BAR THAT THEY ARE FAIR TO BOTH THE EMPLOYERS AND
EMPLOYEES.  IT ALSO APPEARS FROM THE EVIDENCE, WHICH WAS RECEIVED
WITHOUT OBJECTION, THAT THE BROTHERHOOD AND ITS LOCALS COMPRISED OVER
30,000, OR 80 PER CENT OF THE COMPANIES' EMPLOYEES OUT OF 38,000
ELIGIBLE FOR MEMBERSHIP. 

THE BROTHERHOOD AND ITS LOCALS CONTEND THAT THEY WERE INDISPENSABLE
PARTIES AND THAT IN THE ABSENCE OF LEGAL NOTICE TO THEM OR THEIR
APPEARANCE, THE BOARD HAD NO AUTHORITY TO INVALIDATE THE CONTRACTS. 
THE BOARD CONTESTS THIS POSITION, INVOKING OUR DECISION IN NATIONAL
LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261. 
THAT CASE, HOWEVER, IS NOT APPOSITE AS THERE NO QUESTION OF CONTRACT
BETWEEN EMPLOYER AND EMPLOYEE WAS INVOLVED.  THE BOARD HAD FOUND UPON
EVIDENCE THAT THE EMPLOYER HAD CREATED AND FOSTERED THE LABOR
ORGANIZATION IN QUESTION AND DOMINATED ITS ADMINISTRATION IN VIOLATION
OF SEC. 8(2).  THE STATEMENT THAT THE "ASSOCIATION" SO FORMED AND
CONTROLLED WAS NOT ENTITLED TO NOTICE AND HEARING WAS MADE IN THAT
RELATION.  ID., PP. 262, 270, 271.  IT HAS NO APPLICATION TO
INDEPENDENT LABOR UNIONS SUCH AS THOSE BEFORE US.  WE THINK THAT THE
BROTHERHOOD AND ITS LOCALS HAVING VALUABLE AND BENEFICIAL INTERESTS IN
THE CONTRACTS WERE ENTITLED TO NOTICE AND HEARING BEFORE THEY COULD BE
SET ASIDE.  RUSSELL V. CLARK'S EXECUTORS, 7 CRANCH, 69, 96; MALLOW V.
HINDE, 12 WHEAT.  193, 198; MINNESOTA V. NORTHERN SECURITIES CO., 184
U.S. 199, 235; GARZOT V. DE RUBIO, 209 U.S. 283, 297; GENERAL
INVESTMENT CO. V. LAKE SHORE & M.S. CO., 260 U.S. 261, 285.  THE RULE,
WHICH WAS APPLIED IN THE CASES CITED TO SUITS IN EQUITY, IS NOT OF A
TECHNICAL CHARACTER BUT RESTS UPON THE PLAINEST PRINCIPLE OF JUSTICE,
EQUALLY APPLICABLE HERE.  SEE MALLOW V. HINDE, SUPRA.    THE BOARD
URGES THAT THE NATIONAL LABOR RELATIONS ACT DOES NOT CONTAIN ANY
PROVISION REQUIRING THESE UNIONS TO BE MADE PARTIES; THAT SEC. 10(B)
FN9  AUTHORIZES THE BOARD TO SERVE A COMPLAINT ONLY UPON PERSONS
CHARGED WITH UNFAIR LABOR PRACTICES AND THAT ONLY EMPLOYERS CAN BE SO
CHARGED.  IN THAT VIEW, THE QUESTION WOULD AT ONCE ARISE WHETHER THE
ACT COULD BE CONSTRUED AS AUTHORIZING THE BOARD TO INVALIDATE THE
CONTRACTS OF INDEPENDENT LABOR UNIONS NOT BEFORE IT AND ALSO AS TO THE
VALIDITY OF THE ACT IF SO CONSTRUED.  BUT THE BOARD CONTENDS THAT THE
BROTHERHOOD HAD NOTICE, REFERRING TO THE SERVICE OF A COPY OF THE
COMPLAINT AND NOTICE OF HEARING UPON A LOCAL UNION OF THE BROTHERHOOD
ON MAY 12, 1937, AND OF AN AMENDED NOTICE OF HEARING ON MAY 25, 1937. 
PETITIONERS REJOIN THAT THE SERVICE WAS NOT UPON A LOCAL WHOSE RIGHTS
WERE AFFECTED BUT UPON ONE WHOSE MEMBERS WERE NOT EMPLOYEES OF THE
COMPANIES' SYSTEM.  THE BOARD SAYS, HOWEVER, THAT THE BROTHERHOOD, AND
THE LOCALS WHICH WERE INVOLVED, HAD ACTUAL NOTICE AND HENCE WERE
ENTITLED TO INTERVENE, SEC. 10(B), AND CHOSE NOT TO DO SO.  BUT NEITHER
THE ORIGINAL COMPLAINT - WHICH ANTEDATED THE CONTRACTS - NOR THE
SUBSEQUENT AMENDMENTS CONTAINED ANY MENTION OF THEM, AND THE
BROTHERHOOD AND ITS LOCALS WERE NOT PUT UPON NOTICE THAT THE VALIDITY
OF THE CONTRACTS WAS UNDER ATTACK.  THE BOARD CONTENDS THAT THE
COMPLAINT CHALLENGED THE LEGALITY OF THE COMPANIES'"RELATIONS" WITH THE
BROTHERHOOD.  BUT WHAT WAS THUS CHALLENGED CANNOT BE REGARDED AS GOING
BEYOND THE PARTICULAR PRACTICES OF THE EMPLOYERS AND THE DISCHARGES
WHICH THE COMPLAINT DESCRIBED.  IN THESE CIRCUMSTANCES IT CANNOT BE
SAID THAT THE UNIONS WERE UNDER A DUTY TO INTERVENE BEFORE THE BOARD IN
ORDER TO SAFEGUARD THEIR INTERESTS. 

THE BOARD URGES FURTHER THAT THE UNIONS HAVE AVAILED THEMSELVES OF
THE OPPORTUNITY TO PETITION FOR REVIEW OF THE BOARD'S ORDER IN THE
COURT OF APPEALS, AND THAT DUE PROCESS DOES NOT REQUIRE AN OPPORTUNITY
TO BE HEARD BEFORE JUDGMENT, IF DEFENSES MAY BE PRESENTED UPON APPEAL. 
YORK V. TEXAS, 137 U.S. 15, 20, 21; AMERICAN SURETY CO. V. BALDWIN, 287
U.S. 156, 168; MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373, 384.  BUT
THIS RULE ASSUMES THAT THE APPELLATE REVIEW DOES AFFORD OPPORTUNITY TO
PRESENT ALL AVAILABLE DEFENSES, INCLUDING LACK OF PROPER NOTICE, TO
JUSTIFY THE JUDGMENT OR ORDER COMPLAINED OF.  ID. 

APART FROM THIS QUESTION OF NOTICE TO THE UNIONS, BOTH THE COMPANIES
AND THE UNIONS CONTEND THAT UPON THE CASE MADE BEFORE THE BOARD IT HAD
NO AUTHORITY TO INVALIDATE THE CONTRACTS.  BOTH INSIST THAT THAT ISSUE
WAS NOT ACTUALLY LITIGATED, AND THE RECORD SUPPORTS THAT CONTENTION. 
THE ARGUMENT TO THE CONTRARY, THAT THE CONTRACTS WERE NECESSARILY IN
ISSUE BECAUSE OF THE CHARGE OF UNFAIR LABOR PRACTICES AGAINST THE
COMPANIES, IS WITHOUT SUBSTANCE.  NOT ONLY DID THE COMPLAINT AS AMENDED
FAIL TO ASSAIL THE CONTRACTS BUT IT WAS STATED BY THE ATTORNEY FOR THE
BOARD UPON THE HEARING THAT THE COMPLAINT WAS NOT DIRECTED AGAINST THE
BROTHERHOOD; THAT "NO ISSUE OF REPRESENTATION (WAS) INVOLVED IN THIS
PROCEEDING"; AND THAT THE BOARD TOOK THE POSITION THAT THE BROTHERHOOD
WAS "A BONA FIDE LABOR ORGANIZATION" WHOSE LEGALITY WAS NOT ATTACKED. 
BUT THE BOARD SAYS THAT ON JULY 6TH (THE LAST OF THE CONTRACTS HAVING
BEEN MADE ON JUNE 16TH) THE COMPANIES AMENDED THEIR ANSWER STATING THAT
THE MAKING OF THE CONTRACTS HAD RENDERED THE PROCEEDING MOOT, AND THAT
THIS NECESSARILY PUT THE CONTRACTS IN ISSUE.  WE CANNOT SO REGARD IT.
WE THINK THAT THE FAIR CONSTRUCTION OF THE POSITION THUS TAKEN ON THE
LAST DAY OF THE HEARINGS WAS ENTIRELY CONSISTENT WITH THE VIEW THAT THE
VALIDITY OF THE CONTRACTS HAD NOT BEEN, AND WAS NOT, IN ISSUE.  AND THE
COUNSEL FOR THE COMPANIES POINT TO THEIR BRIEF BEFORE THE BOARD, WHICH
THEY PRODUCE, AS PROCEEDING ON THE BASIS THAT THE VALIDITY OF THE
CONTRACTS HAD NOT BEEN ASSAILED. 

FURTHER, THE ACT GIVES NO EXPRESS AUTHORITY TO THE BOARD TO
INVALIDATE CONTRACTS WITH INDEPENDENT LABOR ORGANIZATIONS.  THAT
AUTHORITY, IF IT EXISTS, MUST REST UPON THE PROVISIONS OF SEC. 10(C). 
FN10  THAT SECTION AUTHORIZES THE BOARD, WHEN IT HAS FOUND THE EMPLOYER
GUILTY OF UNFAIR LABOR PRACTICES, TO REQUIRE HIM TO DESIST FROM SUCH
PRACTICES "AND TO TAKE SUCH AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT
OF EMPLOYEES WITH OR WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES
OF THIS ACT."  WE THINK 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. 

THE POWER TO COMMAND AFFIRMATIVE ACTION IS REMEDIAL, NOT PUNITIVE,
AND IS TO BE EXERCISED IN AID OF THE BOARD'S AUTHORITY TO RESTRAIN
VIOLATIONS AND AS A MEANS OF REMOVING OR AVOIDING THE CONSEQUENCES OF
VIOLATION WHERE THOSE CONSEQUENCES ARE OF A KIND TO THWART THE PURPOSES
OF THE ACT.  THE CONTINUED EXISTENCE OF A COMPANY UNION ESTABLISHED BY
UNFAIR LABOR PRACTICES OR OF A UNION DOMINATED BY THE EMPLOYER IS A
CONSEQUENCE OF VIOLATION OF THE ACT WHOSE CONTINUANCE THWARTS THE
PURPOSES OF THE ACT AND RENDERS INEFFECTIVE ANY ORDER RESTRAINING THE
UNFAIR PRACTICES.  COMPARE NATIONAL LABOR RELATIONS BOARD V.
PENNSYLVANIA GREYHOUND LINES, SUPRA.  HERE, THERE IS NO BASIS FOR A
FINDING THAT THE CONTRACTS WITH THE BROTHERHOOD AND ITS LOCALS WERE A
CONSEQUENCE OF THE UNFAIR LABOR PRACTICES FOUND BY THE BOARD OR THAT
THESE CONTRACTS IN THEMSELVES THWART ANY POLICY OF THE ACT OR THAT
THEIR CANCELLATION WOULD IN ANY WAY MAKE THE ORDER TO CEASE THE
SPECIFIED PRACTICES ANY MORE EFFECTIVE. 

THE ACT CONTEMPLATES THE MAKING OF CONTRACTS WITH LABOR
ORGANIZATIONS.  THAT IS THE MANIFEST OBJECTIVE IN PROVIDING FOR
COLLECTIVE BARGAINING.  UNDER SEC. 7  FN11  THE EMPLOYEES OF THE
COMPANIES ARE ENTITLED TO SELF-ORGANIZATION, TO JOIN LABOR
ORGANIZATIONS AND TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF
THEIR OWN CHOOSING.  THE 80 PER CENT. OF THE EMPLOYEES WHO WERE MEMBERS
OF THE BROTHERHOOD AND ITS LOCALS, HAD THAT RIGHT.  THEY HAD THE RIGHT
TO CHOOSE THE BROTHERHOOD AS THEIR REPRESENTATIVE FOR COLLECTIVE
BARGAINING AND TO HAVE CONTRACTS MADE AS THE RESULT OF THAT
BARGAINING.  NOTHING THAT THE EMPLOYERS HAD DONE DEPRIVED THEM OF THAT
RIGHT.  NOR DID THE CONTRACTS MAKE THE BROTHERHOOD AND ITS LOCALS
EXCLUSIVE REPRESENTATIVES FOR COLLECTIVE BARGAINING.  ON THIS POINT THE
CONTRACTS SPEAK FOR THEMSELVES.  THEY SIMPLY CONSTITUTE THE BROTHERHOOD
THE COLLECTIVE BARGAINING AGENCY FOR THOSE EMPLOYEES WHO ARE ITS
MEMBERS.  THE BOARD BY ITS ORDER DID NOT DIRECT AN ELECTION TO
ASCERTAIN WHO SHOULD REPRESENT THE EMPLOYEES FOR COLLECTIVE
BARGAINING.  SEC. 9(C).  FN12  UPON THIS RECORD THERE IS NOTHING TO
SHOW THAT THE EMPLOYEES' SELECTION AS INDICATED BY THE BROTHERHOOD
CONTRACTS HAS BEEN SUPERSEDED BY ANY OTHER SELECTION BY A MAJORITY OF
EMPLOYEES OF THE COMPANIES SO AS TO CREATE AN EXCLUSIVE AGENCY FOR
BARGAINING UNDER THE STATUTE, AND IN THE ABSENCE OF SUCH AN EXCLUSIVE
AGENCY THE EMPLOYEES REPRESENTED BY THE BROTHERHOOD, EVEN IF THEY WERE
A MINORITY, CLEARLY HAD THE RIGHT TO MAKE THEIR OWN CHOICE.  MOREOVER,
THE FUNDAMENTAL PURPOSE OF THE ACT IS TO PROTECT INTERSTATE AND FOREIGN
COMMERCE FROM INTERRUPTIONS AND OBSTRUCTIONS CAUSED BY INDUSTRIAL
STRIFE.  THIS PURPOSE APPEARS TO BE SERVED BY THESE CONTRACTS IN AN
IMPORTANT DEGREE.  REPRESENTING SUCH A LARGE PERCENTAGE OF THE
EMPLOYEES OF THE COMPANIES, AND PRECLUDING STRIKES AND PROVIDING FOR
THE ARBITRATION OF DISPUTES, THESE AGREEMENTS ARE HIGHLY PROTECTIVE TO
INTERSTATE AND FOREIGN COMMERCE.  THEY CONTAIN NO TERMS WHICH CAN BE
SAID TO "AFFECT COMMERCE" IN THE SENSE OF THE ACT SO AS TO JUSTIFY
THEIR ABROGATION BY THE BOARD.  THE DISRUPTION OF THESE CONTRACTS, EVEN
PENDING PROCEEDINGS TO ASCERTAIN BY AN ELECTION THE WISHES OF THE
MAJORITY OF EMPLOYEES, WOULD REMOVE THAT SALUTARY PROTECTION DURING THE
INTERVENING PERIOD. 

THE BOARD INSISTS THAT THE CONTRACTS ARE INVALID BECAUSE MADE DURING
THE PENDENCY OF THE PROCEEDING.  BUT THE EFFECT OF THAT PENDENCY WOULD
APPROPRIATELY EXTEND TO THE PRACTICES OF THE EMPLOYERS TO WHICH THE
COMPLAINT WAS ADDRESSED.  SEE JONES V. SECURITIES & EXCHANGE COMM'N,
298 U.S. 1, 15.  IT DID NOT REACH SO FAR AS TO SUSPEND THE RIGHT OF THE
EMPLOYEES TO SELF-ORGANIZATION OR PRECLUDE THE BROTHERHOOD AS AN
INDEPENDENT ORGANIZATION CHOSEN BY ITS MEMBERS FROM MAKING FAIR
CONTRACTS ON THEIR BEHALF. 

APART FROM THIS, THE MAIN CONTENTION OF THE BOARD IS THAT THE
CONTRACTS WERE THE FRUIT OF THE UNFAIR LABOR PRACTICES OF THE
EMPLOYERS; THAT THEY WERE "SIMPLY A DEVICE TO CONSUMMATE AND
PERPETUATE" THE COMPANIES' ILLEGAL CONDUCT AND CONSTITUTED ITS
CULMINATION.  BUT, AS WE HAVE SAID, THIS CONCLUSION IS ENTIRELY TOO
BROAD TO BE SUSTAINED.  IF THE BOARD INTENDED TO MAKE THAT CHARGE, IT
SHOULD HAVE AMENDED ITS COMPLAINT ACCORDINGLY, GIVEN NOTICE TO THE
BROTHERHOOD, AND INTRODUCED PROOF TO SUSTAIN THE CHARGE.  INSTEAD IT IS
LEFT AS A MATTER OF MERE CONJECTURE TO WHAT EXTENT MEMBERSHIP IN THE
BROTHERHOOD WAS INDUCED BY ANY ILLEGAL CONDUCT ON THE PART OF THE
EMPLOYERS.  THE BROTHERHOOD WAS ENTITLED TO FORM ITS LOCALS AND THEIR
ORGANIZATION WAS NOT ASSAILED.  THE BROTHERHOOD AND ITS LOCALS WERE
ENTITLED TO SOLICIT MEMBERS AND THE EMPLOYEES WERE ENTITLED TO JOIN. 
THESE RIGHTS CANNOT BE BRUSHED ASIDE AS IMMATERIAL FOR THEY ARE OF THE
VERY ESSENCE OF THE RIGHTS WHICH THE LABOR RELATIONS ACT WAS PASSED TO
PROTECT AND THE BOARD COULD NOT IGNORE OR OVERRIDE THEM IN PROFESSING
TO EFFECTUATE THE POLICIES OF THE ACT.  TO SAY THAT OF THE 30,000 WHO
DID JOIN THERE WERE NOT THOSE WHO JOINED VOLUNTARILY OR THAT THE
BROTHERHOOD DID NOT HAVE MEMBERS WHOM IT COULD PROPERLY REPRESENT IN
MAKING THESE CONTRACTS WOULD BE TO INDULGE AN EXTRAVAGANT AND
UNWARRANTED ASSUMPTION.  THE EMPLOYERS' PRACTICES, WHICH WERE
COMPLAINED OF, COULD BE STOPPED WITHOUT IMPERILING THE INTERESTS OF
THOSE WHO FOR ALL THAT APPEARS HAD EXERCISED FREELY THEIR RIGHT OF
CHOICE. 

WE CONCLUDE THAT THE BOARD WAS WITHOUT AUTHORITY TO REQUIRE THE
PETITIONING COMPANIES TO DESIST FROM GIVING EFFECT TO THE BROTHERHOOD
CONTRACTS, AS PROVIDED IN SUBDIVISION (F) OF PARAGRAPH ONE OF THE
BOARD'S ORDER. 

SUBDIVISION (G) OF THAT PARAGRAPH, REQUIRING THE COMPANIES TO CEASE
RECOGNIZING THE BROTHERHOOD "AS THE EXCLUSIVE REPRESENTATIVE OF THEIR
EMPLOYEES" STANDS ON A DIFFERENT FOOTING.  THE CONTRACTS DO NOT CLAIM
FOR THE BROTHERHOOD EXCLUSIVE REPRESENTATION OF THE COMPANIES'
EMPLOYEES BUT ONLY REPRESENTATION OF THOSE WHO ARE ITS MEMBERS, AND THE
CONTINUED OPERATION OF THE CONTRACTS IS NECESSARILY SUBJECT TO THE
PROVISION OF THE LAW BY WHICH REPRESENTATIVES OF THE EMPLOYEES FOR THE
PURPOSE OF COLLECTIVE BARGAINING CAN BE ASCERTAINED IN CASE ANY
QUESTION OF "REPRESENTATION" SHOULD ARISE.  SEC. 9.  FN13  WE CONSTRUE
SUBDIVISION (G) AS HAVING NO MORE EFFECT THAN TO PROVIDE THAT THERE
SHALL BE NO INTERFERENCE WITH AN EXCLUSIVE BARGAINING AGENCY IF ONE
OTHER THAN THE BROTHERHOOD SHOULD BE ESTABLISHED IN ACCORDANCE WITH THE
PROVISIONS OF THE ACT.  SO CONSTRUED, THAT SUBDIVISION MERELY APPLIES
EXISTING LAW. 

THE PROVISION OF PARAGRAPH TWO OF THE ORDER AS TO POSTING NOTICES
SHOULD BE MODIFIED SO AS TO EXCLUDE ANY REQUIREMENT TO POST A NOTICE
THAT THE EXISTING BROTHERHOOD CONTRACTS HAVE BEEN ABROGATED. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS IS MODIFIED SO AS TO HOLD
UNENFORCEABLE THE PROVISION OF SUBDIVISION (F) OF PARAGRAPH ONE OF THE
ORDER AND THE APPLICATION TO THAT PROVISION OF PARAGRAPH TWO
SUBDIVISION (C), AND AS SO MODIFIED THE DECREE ENFORCING THE ORDER OF
THE BOARD IS AFFIRMED.  MODIFIED AND AFFIRMED. 

FN1  49 STAT. 449; 29 U.S.C. SECS. 158(1)(3). 

FN2  29 U.S.C. 158(2). 

FN3  29 U.S.C. 160(A). 

FN4  NEW YORK STATE LABOR RELATIONS ACT, SEC. 715. 

FN5  29 U.S.C. 160(E)(F). 

FN6  RULES 37 AND 38 ARE AS FOLLOWS: 

"SEC. 37.  WHENEVER THE BOARD DEEMS IT NECESSARY IN ORDER TO
EFFECTUATE THE PURPOSES OF THE ACT, IT MAY PERMIT A CHARGE TO BE FILED
WITH IT, IN WASHINGTON, D.C., OR MAY, AT ANY TIME AFTER A CHARGE HAS
BEEN FILED WITH A REGIONAL DIRECTOR PURSUANT TO SECTION 2 OF THIS
ARTICLE, ORDER THAT SUCH CHARGE, AND ANY PROCEEDING WHICH MAY HAVE BEEN
INSTITUTED IN RESPECT THERETO - 

"(A)  BE TRANSFERRED TO AND CONTINUED BEFORE IT, FOR THE PURPOSE OF
CONSOLIDATION WITH ANY PROCEEDING WHICH MAY HAVE BEEN INSTITUTED BY THE
BOARD, OR FOR ANY OTHER PURPOSE; OR 

"(B)  BE CONSOLIDATED FOR THE PURPOSE OF HEARING, OR FOR ANY OTHER
PURPOSE, WITH ANY OTHER PROCEEDING WHICH MAY HAVE BEEN INSTITUTED IN
THE SAME REGION; OR 

"(C)  BE TRANSFERRED TO AND CONTINUED IN ANY OTHER REGION, FOR THE
PURPOSE OF CONSOLIDATION WITH ANY PROCEEDING WHICH MAY HAVE BEEN
INSTITUTED IN OR TRANSFERRED TO SUCH OTHER REGION, OR FOR ANY OTHER
PURPOSE. 

"THE PROVISIONS OF SECTIONS 3 TO 31, INCLUSIVE, OF THIS ARTICLE
SHALL, IN SO FAR AS APPLICABLE, APPLY TO PROCEEDINGS BEFORE THE BOARD
PURSUANT TO THIS SECTION, AND THE POWERS GRANTED TO REGIONAL DIRECTORS
IN SUCH PROVISIONS SHALL, FOR THE PURPOSE OF THIS SECTION, BE RESERVED
TO AND EXERCISED BY THE BOARD.  AFTER THE TRANSFER OF ANY CHARGE AND
ANY PROCEEDING WHICH MAY HAVE BEEN INSTITUTED IN RESPECT THERETO FROM
ONE REGION TO ANOTHER PURSUANT TO THIS SECTION, THE PROVISIONS OF
CHARGE AND SUCH PROCEEDING AS IF THE CHARGE HAD ORIGINALLY BEEN FILED
IN THE REGION TO WHICH THE TRANSFER IS MADE.    "SEC. 38.  AFTER A
HEARING FOR THE PURPOSE OF TAKING EVIDENCE UPON THE COMPLAINT IN ANY
PROCEEDING OVER WHICH THE BOARD HAS ASSUMED JURISDICTION IN ACCORDANCE
WITH SECTION 37 OF THIS ARTICLE, THE BOARD MAY - 

"(A)  DIRECT THAT THE TRIAL EXAMINER PREPARE AN INTERMEDIATE REPORT,
IN WHICH CASE THE PROVISIONS OF SECTIONS 32 TO 36, INCLUSIVE, OF THIS
ARTICLE SHALL IN SO FAR AS APPLICABLE GOVERN SUBSEQUENT PROCEDURE, AND
THE POWERS GRANTED TO REGIONAL DIRECTORS IN SUCH PROVISIONS SHALL FOR
THE PURPOSE OF THIS SECTION BE RESERVED TO AND EXERCISED BY THE BOARD;
OR 

"(B)  DECIDE THE MATTER FORTHWITH UPON THE RECORD, OR AFTER THE
FILING OF BRIEFS OR ORAL ARGUMENT; OR 

"(C)  REOPEN THE RECORD AND RECEIVE FURTHER EVIDENCE, OR REQUIRE THE
TAKING OF FURTHER EVIDENCE BEFORE A MEMBER OF THE BOARD, OR OTHER AGENT
OR AGENCY; OR 

"(D)  MAKE OTHER DISPOSITION OF THE CASE. 

"THE BOARD SHALL NOTIFY THE PARTIES OF THE TIME AND PLACE OF ANY SUCH
SUBMISSION OF BRIEFS, ORAL ARGUMENT, OR TAKING OF FURTHER EVIDENCE." 

FN7  SEC. 10(B); 29 U.S.C. 160(B). 

FN8  THESE PROVISIONS OF THE ORDER IN SUBSTANCE REQUIRED THE
COMPANIES TO DESIST FROM DISCOURAGING MEMBERSHIP IN THE UNITED OR
ENCOURAGING MEMBERSHIP IN THE BROTHERHOOD, OR ANY OTHER LABOR
ORGANIZATION OF THEIR EMPLOYEES, BY DISCHARGES, OR THREATS OF
DISCHARGE, OR REFUSAL OF REINSTATEMENT, BECAUSE OF MEMBERSHIP OR
ACTIVITY IN CONNECTION WITH ANY SUCH LABOR ORGANIZATION; FROM
PERMITTING REPRESENTATIVES OF THE BROTHERHOOD TO ENGAGE IN ACTIVITIES
IN ITS BEHALF DURING WORKING HOURS OR ON THE EMPLOYERS' PROPERTY UNLESS
SIMILAR PRIVILEGES WERE GRANTED TO THE UNITED AND ALL OTHER LABOR
ORGANIZATIONS; FROM PERMITTING EMPLOYEES WHO WERE OFFICIALS OF THE
EMPLOYEES' REPRESENTATION PLANS TO USE THE EMPLOYERS' TIME, PROPERTY
AND MONEY IN BEHALF OF THE BROTHERHOOD OR ANY OTHER LABOR ORGANIZATION;
FROM EMPLOYING DETECTIVES TO INVESTIGATE THE ACTIVITIES OF THEIR
EMPLOYEES IN BEHALF OF THE UNITED OR OTHER LABOR ORGANIZATIONS, OR
EMPLOYING FOR SUCH PURPOSE ANY OTHER SORT OF ESPIONAGE; AND FROM "IN
ANY OTHER MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS
EMPLOYEES IN THE EXERCISE OF THE RIGHT TO SELF-ORGANIZATION, TO FORM,
JOIN OR ASSIST LABOR ORGANIZATIONS" OR TO BARGAIN COLLECTIVELY OR TO
ENGAGE IN CONCERTED ACTIVITIES FOR THAT PURPOSE OR OTHER MUTUAL AID OR
PROTECTION. 

FN9  29 U.S.C. 160(B). 

FN10  29 U.S.C. 160(C). 

FN11  29 U.S.C. 157. 

FN12  29 U.S.C. 159(C). 

FN13  29 U.S.C. 159. 

OPINION OF MR. JUSTICE BUTLER. 

I AGREE WITH THE COURT'S DECISION THAT THE BOARD WAS WITHOUT
AUTHORITY TO REQUIRE EMPLOYERS TO CEASE AND DESIST FROM GIVING EFFECT
TO THE CONTRACTS REFERRED TO IN SUBDIVISION (F) OF THE FIRST PARAGRAPH
OF THE ORDER.  AND I AM OF OPINION THAT THE ENTIRE ORDER SHOULD BE SET
ASIDE. 

THE BOARD WAS WITHOUT JURISDICTION.  THE FACTS ON WHICH IT ASSUMED TO
EXERT POWER NEED NOT BE NARRATED; THEY ARE SUFFICIENTLY STATED BY THE
LOWER COURT AND IN THE OPINION HERE.  BOTH COURTS RIGHTLY TREAT THE
CASE AS ONE WHERE NEITHER EMPLOYERS NOR EMPLOYEES ARE ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE.  HERE, THE EMPLOYERS ARE ENGAGED SOLELY
IN INTRASTATE ACTIVITIES.  A VERY SMALL PERCENTAGE OF THE PRODUCTS,
FURNISHED IN THAT STATE TO OTHERS, IS BY THE LATTER USED IN INTERSTATE
COMMERCE.  THIS COURT HAS HELD THAT CONGRESS CANNOT REGULATE RELATIONS
BETWEEN EMPLOYERS AND EMPLOYEES ENGAGED EXCLUSIVELY IN INTRASTATE
ACTIVITIES. 

IN SCHECHTER CORP. V. UNITED STATES (MAY, 1935), 295 U.S. 495,
DECIDED SHORTLY BEFORE PASSAGE OF THE NATIONAL LABOR RELATIONS ACT, WE
HELD THAT THE FEDERAL GOVERNMENT CANNOT REGULATE THE WAGES AND HOURS OF
LABOR OF PERSONS EMPLOYED IN THE INTERNAL COMMERCE OF THE STATE. 

IN CARTER V. CARTER COAL CO. (MAY, 1936), 298 U.S. 238, DECIDED
SHORTLY AFTER PASSAGE OF THE NATIONAL LABOR RELATIONS ACT, WE HELD THAT
PROVISIONS OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935 LOOKING TO
THE CONTROL OF WAGES, HOURS, AND WORKING CONDITIONS OF PERSONS ENGAGED
IN PRODUCING COAL ABOUT TO MOVE IN INTERSTATE COMMERCE AND SEEKING TO
GUARANTEE THEIR RIGHT OF COLLECTIVE BARGAINING, WERE BEYOND THE POWER
OF CONGRESS, FOR THE REASONS THAT IT HAS NO GENERAL POWER OF REGULATION
TO PROMOTE THE GENERAL WELFARE; THAT THE POWER TO REGULATE COMMERCE
DOES NOT INCLUDE THE POWER TO CONTROL THE CONDITIONS IN WHICH COAL IS
PRODUCED; THAT THE EFFECT UPON INTERSTATE COMMERCE OF LABOR CONDITIONS
INVOLVED IN THE PRODUCTION OF COAL, INCLUDING DISPUTES AND STRIKES OVER
WAGES AND WORKING CONDITIONS, IS INDIRECT. 

IN THE PERIOD, LESS THAN A YEAR, INTERVENING BETWEEN THE CARTER CASE
AND LABOR BOARD V. JONES & LAUGHLIN (APRIL, 1937), 301 U.S. 1, AND
OTHER LABOR BOARD CASES DECIDED ON THE SAME DAY,  FN1  - AND, AS I
THINK, WRONGLY DECIDED - IT WAS, ON THE AUTHORITY OF THE SCHECHTER AND
CARTER CASES, HELD BY FOUR CIRCUIT COURTS OF APPEALS AND SIX DISTRICT
COURTS THAT THE POWER OF CONGRESS DOES NOT EXTEND TO REGULATIONS
BETWEEN EMPLOYERS AND THEIR EMPLOYEES ENGAGED IN LOCAL PRODUCTION. 
THEIR DECISIONS ARE CITED IN THE DISSENTING OPINION IN THE LABOR BOARD
CASES.  301 U.S. 76.  IN THAT PERIOD THE LOWER COURTS WERE BOUND BY OUR
DECISIONS TO CONDEMN THE NATIONAL LABOR RELATIONS ACT, CONSTRUED TO
APPLY TO PRODUCTION OR INTRASTATE COMMERCE, AS NOT WITHIN THE POWER OF
CONGRESS. 

THIS CASE IS NOT DISTINGUISHABLE FROM THE SCHECHTER CASE OR THE
CARTER CASE.  THERE, AS HERE, THE ACTIVITIES OF THE EMPLOYERS AND THEIR
EMPLOYEES WERE EXCLUSIVELY LOCAL.  IT DIFFERS FROM THE JONES & LAUGHLIN
CASE AND ALL THE OTHER LABOR BOARD CASES.  FN2  IN EACH OF THEM, THE
EMPLOYER WAS TO AN EXTENT ENGAGED IN INTERSTATE COMMERCE.  THE OPINION
JUST ANNOUNCED POINTS TO NO DISTINCTION BETWEEN THIS CASE AND THE
SCHECHTER OR CARTER CASE.  NOR DOES IT REFER TO THE LABOR BOARD CASES
AS CONTROLLING HERE.  BUT, TO SUPPORT THIS FEDERAL ADVANCE INTO LOCAL
FIELDS, THE COURT BRINGS FORWARD THREE RAILROAD RATE CASES:  HOUSTON &
TEXAS RY. V. UNITED STATES (THE SHREVEPORT CASE), 234 U.S. 342;
WISCONSIN RAILROAD COMM'N V. CHICAGO, B. & Q.R. CO., 257 U.S. 563; AND
NEW YORK V. UNITED STATES, 257 U.S. 591. 

THESE CASES GIVE NO SUPPORT TO THE IDEA THAT, IN ABSENCE OF CONFLICT
BETWEEN STATE AND FEDERAL POLICY OR REGULATION, CONGRESS HAS POWER TO
CONTROL LABOR CONDITIONS IN PRODUCTION OR INTRASTATE TRANSPORTATION. 
IN EACH, THE FEDERAL INTERFERENCE IS SHOWN NECESSARY IN ORDER TO
PROTECT NATIONAL AUTHORITY, INTERSTATE COMMERCE, AND INTERSTATE RATES
ESTABLISHED UNDER FEDERAL LAW.  BRIEF REFERENCE TO THE CONDITIONS THAT
LED UP TO THESE CASES AND THE SUBSTANCE OF THE DECISIONS WILL BE
SUFFICIENT TO SHOW THEY HAVE NO APPLICATION HERE. 

IN 1906 AND 1907, MINNESOTA REDUCED INTRASTATE RATES SUBSTANTIALLY
BELOW LAWFULLY ESTABLISHED INTERSTATE RATES.  SUITS WERE BROUGHT BY
THEIR STOCKHOLDERS TO RESTRAIN THE CARRIERS FROM OBEYING, AND STATE
OFFICERS FROM ENFORCING, THE LOCAL RATES ON THE GROUND, INTER ALIA,
THAT THEY WERE REPUGNANT TO THE COMMERCE CLAUSE AND THAT ENFORCEMENT
WOULD NECESSARILY INTERFERE WITH AND BURDEN INTERSTATE TRANSPORTATION
BY THE CARRIERS.  THE MINNESOTA RATE CASES, 230 U.S. 352.  THE
CONTROVERSY WAS EVERYWHERE REGARDED AS IMPORTANT.  SEE P. 395.  THE
FACTS FOUND BY THE SPECIAL MASTER AND ADOPTED BY THE CIRCUIT COURT ARE
STATED IN ITS OPINION (SHEPARD V. NORTHERN PACIFIC RY. CO. (1911), 184
F. 765, 775-794) AND SUMMARIZED IN THE OPINION OF THIS COURT.  PP. 381
395.  THEY SHOW THAT THE INTRASTATE RATES DISCRIMINATED AGAINST
INTERSTATE COMMERCE AND MADE IT IMPOSSIBLE FOR THE CARRIERS TO COLLECT,
OR FOR THE UNITED STATES TO ENFORCE, VALID HIGHER INTERSTATE RATES. 
THE TRIAL COURT HELD THE STATE MEASURES REPUGNANT TO THE COMMERCE
CLAUSE AND UPON THAT GROUND, AMONG OTHERS, ENJOINED ENFORCEMENT OF THE
RATES THEY PRESCRIBED. 

THE CASES WERE ARGUED HERE IN APRIL, 1912, AND DECIDED JUNE 9, 1913. 
THIS COURT UPHELD THE STATE RATES, NOTWITHSTANDING THE COMMERCE CLAUSE,
THE ACT TO REGULATE COMMERCE, THE INTERSTATE RATES LAWFULLY ESTABLISHED
IN ACCORDANCE WITH FEDERAL LAW, AND THE DESTRUCTIVE DISCRIMINATION.  IT
HELD THAT, IN THE ABSENCE OF A FINDING BY THE INTERSTATE COMMERCE
COMMISSION OF UNJUST DISCRIMINATION, THE INTRASTATE RATES WERE VALID. 
THE OPINION RESERVED, P. 419, THE QUESTION WHETHER THE COMMISSION WAS
EMPOWERED TO MAKE THE DETERMINATION.  AND THAT QUESTION WAS DECIDED IN
THE SHREVEPORT CASE, 234 U.S. 342, 357. 

THAT CASE WAS PENDING HERE BEFORE THE DECISION IN THE MINNESOTA RATE
CASES, AND WAS DECIDED IN JUNE, 1914.  THE INTERSTATE COMMERCE
COMMISSION HAD FOUND THAT RATES PRESCRIBED BY TEXAS OPERATED TO
DISCRIMINATE AGAINST INTERSTATE TRAFFIC FROM SHREVEPORT, LOUISIANA,
INTO TEXAS MOVING ON LAWFULLY ESTABLISHED INTERSTATE RATES.  IN ORDER
TO ELIMINATE THE DISCRIMINATION, THE COMMISSION DIRECTED THE CARRIERS
TO CEASE CHARGING HIGHER RATES FOR INTERSTATE TRANSPORTATION THAN THOSE
CHARGED FOR TRANSPORTATION BETWEEN TEXAS POINTS.  THIS COURT HELD THE
CARRIERS FREE TO RAISE THE INTRASTATE RATES SO AS TO REMOVE THE
DISCRIMINATION. 

WISCONSIN RAILROAD COMM'N V. CHICAGO, B. & Q.R. CO. (1922), 257 U.S.
563, UPHELD SEC. 15A OF THE INTERSTATE COMMERCE ACT, ADDED BY SEC. 422,
TRANSPORTATION ACT, 1920, WHICH EMPOWERED THE INTERSTATE COMMERCE
COMMISSION TO REMOVE DISCRIMINATION RESULTING FROM INTRASTATE RATES
UNDULY LOW, AS COMPARED WITH CORRESPONDING RATES FIXED UNDER THAT

NEW YORK V. UNITED STATES, 257 U.S. 591, HELD THAT INTRASTATE RATES
SO LOW THAT THEY DISCRIMINATED AGAINST INTERSTATE COMMERCE WITHIN THE
MEANING OF THE TRANSPORTATION ACT, 1920, MAY CONSTITUTIONALLY BE
INCREASED UNDER THAT ACT BY THE COMMISSION TO CONFORM WITH LIKE RATES
IN INTERSTATE COMMERCE FIXED BY IT. 

THE CONSTITUTIONAL QUESTIONS DECIDED IN THESE THREE CASES WERE
ESSENTIALLY DIFFERENT FROM THE ONE OF FEDERAL POWER HERE PRESENTED. 
THE STATE MEASURES THERE OVERBORNE WERE REPUGNANT TO EXISTING FEDERAL
REGULATIONS OF INTERSTATE COMMERCE.  APPLICATION OF THE LOWER STATE
RATES MADE IT IMPOSSIBLE FOR FEDERAL AUTHORITY TO REQUIRE, OR TO
ENABLE, CARRIERS TO COLLECT INTERSTATE RATES LAWFULLY ESTABLISHED AS
JUST AND REASONABLE.  THE POLICY AND PROVISIONS OF THE NEW YORK STATE
LABOR RELATIONS ACT ARE IN SUBSTANCE PRECISELY THE SAME AS THE NATIONAL
POLICY AND THE NATIONAL LABOR RELATIONS ACT.  THE STATE'S INTEREST,
PURPOSE, AND ABILITY TO SAFEGUARD AGAINST POSSIBLE INTERRUPTION OF
PRODUCTION AND SERVICE BY LABOR DISPUTES ARE NOT LESS THAN THOSE OF THE
FEDERAL GOVERNMENT.  THE STATE'S NEED OF CONTINUOUS SERVICE IS
IMMEDIATE, WHILE THE EFFECT OF INTERRUPTION ON INTERSTATE OR FOREIGN
COMMERCE WOULD BE MEDIATE, INDIRECT, AND RELATIVELY REMOTE.  THE RECORD
FAILS TO DISCLOSE ANY CONDITION, EXISTING OR THREATENED, TO SUGGEST AS
NECESSARY FEDERAL ACTION TO PROTECT INTERSTATE COMMERCE, OR ANY OTHER
INTEREST OF THE GOVERNMENT AGAINST INTERRUPTION OR INTERFERENCE LIABLE
TO RESULT FROM CONTROVERSIES BETWEEN THESE EMPLOYERS AND THEIR
EMPLOYEES.  THE RIGHT OF THE STATES, CONSISTENTLY WITH NATIONAL POLICY
AND LAW, FREELY TO EXERT THE POWERS SAFEGUARDED TO THEM BY THE FEDERAL
CONSTITUTION IS ESSENTIAL TO THE PRESERVATION OF THIS GOVERNMENT. 
UNITED STATES V. E.C. KNIGHT CO., 156 U.S. 1, 12, 13.  KIDD V. PEARSON,
128 U.S. 1, 21.  ASSEVERATION OF NEED TO UPHOLD OUR DUAL FORM OF
GOVERNMENT AND THE SAFEGUARDS SET FOR PROTECTION OF THE STATES AND THE
LIBERTIES OF THE PEOPLE AGAINST UNAUTHORIZED EXERTION OF FEDERAL POWER,
DOES NOT ASSURE ADHERENCE TO, OR CONCEAL FAILURE TO DISCHARGE, DUTY TO
SUPPORT THE CONSTITUTION.  SEE SCHECHTER CORP. V. UNITED STATES, SUPRA,
548-550.  CF. LABOR BOARD V. JONES & LAUGHLIN, SUPRA, 29-30. 

FN1  LABOR BOARD V. FRUEHAUF CO., 301 U.S. 49.  LABOR BOARD V.
CLOTHING CO., 301 U.S. 58.  ASSOCIATED PRESS V. LABOR BOARD, 301 U.S.
103.  WASHINGTON COACH CO. V. LABOR BOARD, 301 U.S. 142. 

FN2  LABOR BOARD V. FRUEHAUF CO., 301 U.S. 49.  LABOR BOARD V.
CLOTHING CO., 301 U.S. 58.  ASSOCIATED PRESS V. LABOR BOARD, 301 U.S.
103.  WASHINGTON COACH CO. V. LABOR BOARD, 301 U.S. 142.  LABOR BOARD
V. GREYHOUND LINES, 303 U.S. 261.  LABOR BOARD V. PACIFIC LINES, 303
U.S. 272.  SANTA CRUZ CO. V. LABOR BOARD, 303 U.S. 453.  LABOR BOARD V.
MACKAY RADIO & T. CO., 304 U.S. 333. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 

MR. JUSTICE REED CONCURRING IN PART, DISSENTING IN PART. 

WHILE CONCURRING IN GENERAL WITH THE CONCLUSIONS OF THE COURT IN THIS
CASE, I FIND MYSELF IN DISAGREEMENT WITH THE CONCLUSION THAT THE
NATIONAL LABOR RELATIONS BOARD WAS "WITHOUT AUTHORITY TO REQUIRE THE
PETITIONING COMPANIES TO DESIST FROM GIVING EFFECT TO THE BROTHERHOOD
CONTRACTS, AS PROVIDED IN SUBDIVISION (F) OF PARAGRAPH ONE OF THE
BOARD'S ORDER."  IN THAT PARAGRAPH THE PETITIONER COMPANIES ARE ORDERED
TO: 

"I.  CEASE AND DESIST FROM: 

     .         .         .         .   . 

(F)  GIVING EFFECT TO THEIR CONTRACTS WITH THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS." 

IT IS AGREED THAT THE "FUNDAMENTAL PURPOSE OF THE ACT IS TO PROTECT
INTERSTATE AND FOREIGN COMMERCE FROM INTERRUPTIONS AND OBSTRUCTIONS
CAUSED BY INDUSTRIAL STRIFE."  THIS IS TO BE ACCOMPLISHED BY CONTRACTS
WITH LABOR ORGANIZATIONS, REACHED THROUGH COLLECTIVE BARGAINING.  THE
LABOR ORGANIZATIONS IN TURN ARE TO BE CREATED THROUGH THE SELF
ORGANIZATION OF WORKERS, FREE FROM INTERFERENCE, RESTRAINT OR COERCION
OF THE EMPLOYER.  FN1  THE FORBIDDEN INTERFERENCE IS AN UNFAIR LABOR
PRACTICE, WHICH THE BOARD, EXCLUSIVELY, IS EMPOWERED TO PREVENT BY SUCH
NEGATIVE AND AFFIRMATIVE ACTION AS WILL EFFECTUATE THE POLICIES OF THE
ACT.  FN2  TO INTERPRET THE ACT TO MEAN THAT THE BOARD IS WITHOUT POWER
TO NULLIFY ADVANTAGES OBTAINED BY THE EDISON COMPANIES THROUGH
CONTRACTS WITH UNIONS, PARTLY DEVELOPED BY THE UNLAWFUL INTERFERENCE OF
THE EDISON COMPANIES WITH SELF-ORGANIZATION, IS TO WITHDRAW FROM THE
BOARD THE SPECIFIC AUTHORITY GRANTED BY THE ACT TO TAKE AFFIRMATIVE
ACTION TO PROTECT THE WORKERS' RIGHT OF SELF-ORGANIZATION, THE BASIC
PRIVILEGE GUARANTEED BY THE ACT.  FREEDOM FROM EMPLOYER DOMINATION
FLOWS FROM FREEDOM IN SELF-ORGANIZATION.    IT IS ASSUMED THAT THE
TERMS OF THESE CONTRACTS IN ALL RESPECTS ARE CONSISTENT WITH THE
REQUIREMENTS OF THE NATIONAL LABOR RELATIONS ACT AND ARE IN THEMSELVES,
CONSIDERED APART FROM THE ACTIONS OF THE EDISON COMPANIES IN SECURING
THEIR EXECUTION, ADVANTAGEOUS IN PRESERVING INDUSTRIAL HARMONY. 

THE BOARD FOUND THAT THE CONSOLIDATED EDISON COMPANY AND ITS
AFFILIATES, THE RESPONDENTS BEFORE THE BOARD, "DELIBERATELY EMBARKED
UPON AN UNLAWFUL COURSE OF CONDUCT, AS DESCRIBED ABOVE, WHICH ENABLED
THEM TO IMPOSE THE I.B.E.W. UPON THEIR EMPLOYEES AS THEIR BARGAINING
REPRESENTATIVE AND AT THE SAME TIME DISCOURAGE AND WEAKEN THE UNITED
WHICH THEY OPPOSED.  FROM THE OUTSET THE RESPONDENTS CONTEMPLATED THE
EXECUTION OF CONTRACTS WITH THE I.B.E.W. LOCALS WHICH WOULD CONSUMMATE
AND PERPETUATE THEIR PLAINLY ILLEGAL COURSE OF CONDUCT IN INTERFERING
WITH, RESTRAINING, AND COERCING THEIR EMPLOYEES IN THE EXERCISE OF THE
RIGHTS GUARANTEED TO THEM UNDER SECTION 7 OF THE ACT.  IT IS CLEAR THAT
THE GRANTING OF THE CONTRACTS TO THE I.B.E.W. BY THE RESPONDENTS WAS A
PART OF THE RESPONDENTS' UNLAWFUL COURSE OF CONDUCT AND AS SUCH
CONSTITUTED AN INTERFERENCE WITH THE RIGHTS OF THEIR EMPLOYEES TO SELF
ORGANIZATION.  THE CONTRACTS WERE EXECUTED UNDER SUCH CIRCUMSTANCES
THAT THEY ARE INVALID, NOTWITHSTANDING THAT THEY ARE IN EXPRESS TERMS
APPLICABLE ONLY TO MEMBERS OF THE I.B.E.W. LOCALS.  IF THE CONTRACTS
ARE SUSCEPTIBLE OF THE CONSTRUCTION PLACED UPON THEM BY THE
RESPONDENTS, NAMELY, THAT THEY WERE EXCLUSIVE CLUSIVE COLLECTIVE
BARGAINING AGREEMENTS, THEN, A FORTIORI, THEY ARE INVALID."  FN3 

THE EVIDENCE UPON WHICH THIS FINDING IS BASED IS SUMMARIZED IN DETAIL
IN 4 N.L.R.B., PAGES 83 TO 94.  IT SHOWS A CONSISTENT EFFORT ON THE
PART OF THE OFFICERS AND FOREMEN OF THE EDISON COMPANY AND ITS
AFFILIATES, AS WELL AS OTHER EMPLOYEES OF THE EDISON COMPANIES -
FORMERLY OFFICERS IN THE RECENTLY DISESTABLISHED "EMPLOYEES'
REPRESENTATION PLANS," ACTUALLY COMPANY UNIONS - TO FURTHER THE
DEVELOPMENT OF THE I.B.E.W. UNIONS BY RECOGNITION, CONTRACTS FOR
BARGAINING, OPENLY EXPRESSED APPROVAL, ESTABLISHMENT OF LOCALS, AND BY
PERMITTING SOLICITATION OF EMPLOYEES ON THE TIME AND PREMISES OF THE
EDISON COMPANIES.  BY THE WAGNER ACT EMPLOYEES HAVE "THE RIGHT TO SELF
ORGANIZATION."  IT IS AN "UNFAIR LABOR PRACTICE FOR AN EMPLOYER" TO
"INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES" IN THE EXERCISE OF THAT
RIGHT.  FN4  THE BOARD CONCLUDED THAT THE CONTRACTS WITH THE I.B.E.W.
UNIONS WERE A PART OF A SYSTEMATIC VIOLATION BY THE EDISON COMPANIES OF
THE WORKERS' RIGHT TO SELF-ORGANIZATION. 

THIS DETERMINATION SET IN MOTION THE AUTHORITY OF THE BOARD TO ISSUE
AN ORDER TO CEASE AND DESIST FROM THE UNFAIR LABOR PRACTICE AND TO TAKE
"SUCH AFFIRMATIVE ACTION  ...  AS WILL EFFECTUATE THE POLICIES OF THIS
ACT."  THE EVIDENCE WAS CLEARLY SUFFICIENT TO SUPPORT THE CONCLUSION OF
THE BOARD THAT THE EDISON COMPANIES ENTERED INTO THE CONTRACTS AS AN
INTEGRAL PART OF A PLAN FOR COERCION OF AND INTERFERENCE WITH THE SELF
ORGANIZATION OF THEIR EMPLOYEES.  THIS JUSTIFIED THE BOARD'S
PROHIBITION AGAINST GIVING EFFECT TO THE CONTRACTS.  THE "AFFIRMATIVE
ACTION" MUST BE CONNECTED WITH THE UNFAIR PRACTICES BUT THERE COULD BE
NO QUESTION AS TO THE MATERIALITY OF THE CONTRACTS.  AS THIS COURT,
ONLY RECENTLY, SAID, AS TO THE PURPOSE OF THE CONGRESS IN ENACTING THIS
ACT: 

"IT HAD BEFORE IT THE RAILWAY CLERKS CASE WHICH HAD EMPHASIZED THE
IMPORTANCE OF UNION RECOGNITION IN SECURING COLLECTIVE BARGAINING,
REPORT OF THE SENATE COMMITTEE ON EDUCATION AND LABOR, S. REP. 573,
74TH CONG., 1ST SESS., P. 17, AND THERE WERE THEN AVAILABLE DATA
SHOWING THAT ONCE AN EMPLOYER HAS CONFERRED RECOGNITION ON A PARTICULAR
ORGANIZATION IT HAS A MARKED ADVANTAGE OVER ANY OTHER IN SECURING THE
ADHERENCE OF EMPLOYEES, AND HENCE IN PREVENTING THE RECOGNITION OF ANY
OTHER."  FN5 

TO THIS, IT IS ANSWERED THAT THE EXTENT OF THE COERCION IS LEFT TO
"MERE CONJECTURE"; THAT IT WOULD BE AN "EXTRAVAGANT" ASSUMPTION TO SAY
THAT NONE OF THE 30,000 MEMBERS "JOINED VOLUNTARILY"; AND THAT THE
"EMPLOYERS' PRACTICES, WHICH WERE COMPLAINED OF, COULD BE STOPPED
WITHOUT IMPERILING THE INTERESTS OF THOSE WHO FOR ALL THAT APPEARS HAD
EXERCISED FREELY THEIR RIGHT OF CHOICE."  FN6 ON THE QUESTION WHETHER
OR NOT THE EDISON COMPANIES' ACTIVITIES AS TO THESE CONTRACTS WERE A
PART OF A DEFINITE PLAN TO INTERFERE WITH THE RIGHT OF SELF
ORGANIZATION, THESE ANSWERS ARE IMMATERIAL.  IT IS SUGGESTED THAT THE
PROBLEM OF THE CONTRACTS SHOULD BE APPROACHED WITH THREE CARDINAL
CONSIDERATIONS IN MIND:  (1) THAT ONE CONTRACTING PARTY IS AN
"INDEPENDENTLY ESTABLISHED" LABOR ORGANIZATION, FREE OF DOMINATION BY
THE EMPLOYER; (2) THAT THE CONTRACTS GRANT VALUABLE COLLECTIVE
BARGAINING RIGHTS; AND (3) THAT THEY CONTAIN PROVISIONS FOR DESIRABLE
WORKING PRIVILEGES.  SUCH CONSIDERATIONS SHOULD AFFECT DISCRETION IN
SHAPING THE PROPER REMEDY.  THEY ARE NEGLIGIBLE IN DETERMINING THE
POWER OF THE BOARD.  THEY WOULD, IF GIVEN WEIGHT, PERMIT PATERNALISM TO
BE SUBSTITUTED FOR SELF-ORGANIZATION.  THE FINDINGS OF THE BOARD, BASED
ON SUBSTANTIAL EVIDENCE, ARE CONCLUSIVE.  FN7  THERE WAS EVIDENCE OF
COERCION AND INTERFERENCE, AND THE BOARD DID DETERMINE THAT THE
POLICIES OF THE ACT WOULD BE EFFECTUATED BY REQUIRING THE COMPANIES TO
CEASE GIVING EFFECT TO THESE CONTRACTS. 

THE PETITIONERS, HOWEVER, ASIDE FROM THE MERITS, RAISE PROCEDURAL
OBJECTIONS.  IT IS CONTENDED THAT BEFORE THE BOARD COULD HAVE AUTHORITY
TO ORDER THE EDISON COMPANIES TO CEASE AND DESIST FROM GIVING EFFECT TO
THEIR CONTRACTS WITH THE UNIONS, IT WAS NECESSARY THAT THE UNIONS AS
WELL AS THE EDISON COMPANIES SHOULD HAVE LEGAL NOTICE OR SHOULD APPEAR;
THAT THE UNIONS WERE INDISPENSABLE PARTIES.  THIS COURT HAS HELD TO THE
CONTRARY IN LABOR BOARD V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261. 
THIS CASE DETERMINED THAT WHERE AN EMPLOYER HAS CREATED AND FOSTERED A
LABOR ORGANIZATION OF EMPLOYEES, THUS INTERFERING WITH THEIR RIGHT TO
SELF-ORGANIZATION, THE EMPLOYER CAN BE REQUIRED WITHOUT NOTICE TO THE
ORGANIZATION, TO WITHDRAW ALL RECOGNITION OF SUCH ORGANIZATION AS THE
REPRESENTATIVE OF ITS EMPLOYEES.  IT IS SAID THAT THIS CASE "IS NOT
APPOSITE, AS THERE NO QUESTION OF CONTRACT BETWEEN EMPLOYER AND
EMPLOYEE WAS INVOLVED.  THE BOARD HAD FOUND UPON EVIDENCE THAT THE
EMPLOYER HAD CREATED AND FOSTERED THE LABOR ORGANIZATION IN QUESTION
AND DOMINATED ITS ADMINISTRATION IN VIOLATION OF SEC. 8(2)."  FN8  IN
THE INSTANT CASE IT WAS FOUND THAT NO SUCH DOMINATION EXISTED.  IN THE
GREYHOUND CASE, THE BOARD FOUND NOT ONLY DOMINATION UNDER SEC. 8(2) BUT
ALSO, AS IN THIS CASE, AN UNFAIR LABOR PRACTICE UNDER SEC. 8(1).  THE
COMPANY'S VIOLATION OF SEC. 8(1) WAS PREDICATED ON ITS INTERFERENCE
WITH SELF-ORGANIZATION.  FN9  IN THE GREYHOUND CASE IT WAS SAID THAT
THE ORGANIZATION WAS NOT ENTITLED TO NOTICE AND HEARING BECAUSE "THE
ORDER DID NOT RUN AGAINST THE ASSOCIATION."  FN10  HERE THE UNIONS ARE
AFFECTED BY THE ACTION ON THE CONTRACTS, EXACTLY AS THE LABOR
ORGANIZATION IN THE GREYHOUND CASE WAS AFFECTED BY THE ORDER TO
WITHDRAW RECOGNITION.  IT WOULD SEEM IMMATERIAL WHETHER THOSE CONTRACTS
WERE VIOLATIVE OF ONE OR BOTH OR ALL THE PROHIBITED UNFAIR LABOR
PRACTICES. 

A FURTHER PROCEDURAL OBJECTION IS FOUND IN THE FAILURE OF THE
COMPLAINT, OR ANY OF ITS AMENDMENTS, TO SEEK SPECIFICALLY A CEASE AND
DESIST ORDER AGAINST CONTINUED OPERATION UNDER THE CONTRACTS.  THE
COMPANIES WERE CHARGED WITH ALLOWING ORGANIZATION MEETINGS ON THE
COMPANY TIME AND ON COMPANY PROPERTY, PERMITTING SOLICITATION OF
MEMBERSHIP DURING COMPANY TIME, AND PAYING OVERTIME ALLOWANCES TO THOSE
ENGAGED IN SOLICITING OR COERCING WORKERS TO JOIN THE CONTRACTING
UNIONS.  THE COMPLAINT SAID THAT SIMILAR AID WAS NOT EXTENDED TO A
COMPETING UNION AND THAT OFFICE ASSISTANCE WAS GIVEN TO THE EFFORT TO
GET MEMBERS FOR THE CONTRACTING UNIONS.  THESE CHARGES MADE IT OBVIOUS
THAT THE CONTRACTS WERE OBTAINED FROM THE UNIONS WHICH WERE IMPROPERLY
AIDED BY THE EDISON COMPANIES IN VIOLATION OF THE PROHIBITIONS AGAINST
INTERFERENCE WITH SELF-ORGANIZATION.  CONTRACTS SO OBTAINED WERE
NECESSARILY AT ISSUE IN AN EXAMINATION OF THE ACTS IN QUESTION. 

CERTAINLY THE EDISON COMPANIES AND THE CONTRACTING UNIONS COULD HAVE
BEEN ALLOWED ON A PROPER SHOWING A FURTHER HEARING ON THE QUESTION OF
THE COMPANIES' CONTINUING RECOGNITION OF THE CONTRACTS.  BY SEC. 10(F)
THE EDISON COMPANIES AND THE UNIONS COULD OBTAIN A REVIEW OF THE
BOARD'S ORDER.  IN THAT HEARING EITHER OR BOTH COULD SHOW TO THE COURT,
SEC. 10(E), THAT ADDITIONAL EVIDENCE AS TO THE CONTRACTS WAS MATERIAL
AND THAT IT HAD NOT BEEN PRESENTED BECAUSE THE AGGRIEVED PARTIES HAD
NOT UNDERSTOOD THAT THE CONTRACTS WERE SUBJECT TO A CEASE AND DESIST
ORDER, OR HAD NOT KNOWN OF THE PROCEEDING.  THE COURT COULD ORDER THE
BOARD TO TAKE THE ADDITIONAL EVIDENCE.  THIS SIMPLE PRACTICE WAS NOT
FOLLOWED.  ALTHOUGH ALL PARTIES WERE BEFORE THE LOWER COURT ON THE
REVIEW, THE PETITIONERS CHOSE TO RELY ON THE IMPOTENCY OF THE BOARD TO
ENTER AN ORDER AFFECTING THE CONTRACTS. 

IN THESE CIRCUMSTANCES THE PROVISION OF THE ORDER REQUIRING THE
EDISON COMPANIES TO CEASE FROM GIVING EFFECT TO THEIR CONTRACTS WITH
THE CONTRACTING UNIONS IS PROPER.  THIS ORDER PREVENTS THE EDISON
COMPANIES FROM REAPING AN ADVANTAGE FROM THOSE ACTS OF INTERFERENCE
FOUND ILLEGAL BY THE BOARD. 

FN1  LABOR BOARD CASES, 301 U.S. 1. 

FN2 SECS. 7, 8, 10, ACT OF JULY 5, 1935, 49 STAT. 452-55. 

FN3 4 N.L.R.B. 71, 94. 

FN4  SECS. 7 AND 8, ACT OF JULY 5, 1935, 49 STAT. 452. 

FN5  LABOR BOARD V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, 267. 

FN6  ANTE, P. 238. 

FN7  WASHINGTON, V. & M. COACH CO. V. LABOR BOARD, 301 U.S. 142,
146. 

FN8  ANTE, P. 233. 

FN9  LABOR BOARD V. PENNSYLVANIA GREYHOUND LINES, 303 U.S. 261, 263. 

FN10  ID., 271. 

MR. JUSTICE BLACK CONCURS IN THIS OPINION. 
..END :




















SCHER V. UNITED STATES, 305 U.S. 251 


NO. 49.  ARGUED NOVEMBER 7, 1938.  - DECIDED DECEMBER 5, 1938.  - 95
F.2D 64, AFFIRMED. 


1.  IN A PROSECUTION FOR POSSESSION AND TRANSPORTATION OF DISTILLED
SPIRITS IN CONTAINERS LACKING THE REQUISITE REVENUE STAMPS, IN
VIOLATION OF SEC. 201 OF THE LIQUOR TAXING ACT OF 1934, A DEFENSE THAT
THE DISTILLED SPIRITS INVOLVED WERE NOT INTENDED FOR SALE AND WERE
THEREFORE EXPRESSLY EXCEPTED FROM THE PROVISIONS OF THE ACT MUST BE
AFFIRMATIVELY PROVED.  P. 254. 

2. UNDER THE CIRCUMSTANCES DISCLOSED IN THIS CASE, THE SEARCH OF AN
AUTOMOBILE AND SEIZURE OF LIQUOR THEREFROM, WITHOUT A WARRANT, AFTER
THE CAR HAD ENTERED A GARAGE APPURTENANT TO A PRIVATE DWELLING, TO
WHICH IT HAD BEEN PURSUED BY FEDERAL OFFICERS, WAS NOT AN UNREASONABLE
SEARCH AND SEIZURE; AND, IN A PROSECUTION FOR VIOLATION OF SEC. 201 OF
THE LIQUOR TAXING ACT OF 1934, A MOTION TO SUPPRESS THE EVIDENCE
THEREBY OBTAINED WAS PROPERLY OVERRULED.  P. 255. 

3.  A FEDERAL OFFICER WHO HAS MADE AN ARREST FOLLOWING A TIP AS TO A
VIOLATION OF A FEDERAL LAW MAY NOT IN A PROSECUTION FOR SUCH VIOLATION
BE REQUIRED TO REVEAL THE IDENTITY OF HIS INFORMANT, WHERE THIS IS NOT
ESSENTIAL TO THE DEFENSE.  P. 254. 

SCHER V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 304 U.S. 557, TO REVIEW THE AFFIRMANCE OF A CONVICTION
FOR VIOLATION OF THE LIQUOR TAXING ACT OF 1934. 

THE SEARCH WAS ILLEGAL BECAUSE THE FEDERAL OFFICERS MADE THEIR WAY
INTO PART OF A PRIVATE DWELLING WITHOUT A WARRANT, AND ALSO BECAUSE
THEY WERE TRESPASSERS WITHIN THE CURTILAGE OF THE DEFENDANT'S HOME WHEN
THEY DISCOVERED EVIDENCE OF THE CRIME. 

THE CONSTITUTIONAL PROHIBITION AGAINST UNREASONABLE SEARCHES AND
SEIZURES IS CONSTRUED LIBERALLY TO SAFEGUARD THE RIGHTS OF PRIVACY. 
UNITED STATES V. LEFKOWITZ, 285 U.S. 452; GO-BART IMPORTING CO. V.
UNITED STATES, 282 U.S. 344; TAYLOR V. UNITED STATES, 286 U.S. 1; SGRO
V. UNITED STATES, 287 U.S. 206.  SEE ALSO UNITED STATES V. SLUSSER, 270
F. 818; UNITED STATES V. DICORVO, 37 F.2D 124; ELROD V. MOSS, 278 F.
123; GAUSKE V. UNITED STATES, 1 F.2D 620; UNITED STATES V. OLMSTEAD, 7
F.2D 760; UNITED STATES V. SPALLINO, 21 F.2D 567. 

WHILE THE AUTOMOBILE WAS THE OBJECT THAT WAS SEARCHED, THE SEARCH WAS
MADE IN THE GARAGE OF THE DEFENDANT, AND THEREFORE WAS A SEARCH OF THE
GARAGE ITSELF. 

THE DEFENDANT WAS ENTITLED TO KNOW THE SOURCE OF THE AGENTS'
INFORMATION SO THAT THE COURT MIGHT DETERMINE WHETHER THE INFORMATION
WAS GIVEN BY A RELIABLE INFORMANT AND WHETHER A CASE OF PROBABLE CAUSE
HAD BEEN ESTABLISHED. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

PETITIONER SCHER WAS FOUND GUILTY UNDER TWO COUNTS OF AN INDICTMENT
WHICH CHARGED VIOLATIONS OF SEC. 201, TITLE II, LIQUOR TAXING ACT,
JANUARY 11, 1934,  FN1  BY POSSESSING AND TRANSPORTING DISTILLED
SPIRITS IN CONTAINERS WANTING REQUISITE REVENUE STAMPS.  HE WAS
SENTENCED FOR A YEAR AND A DAY, ETC.  THE CIRCUIT COURT OF APPEALS
AFFIRMED THE JUDGMENT. 

NO OBJECTION TO THE JUDGE'S CHARGE IS URGED AND THE EVIDENCE
SUBMITTED TO THE JURY IS ADEQUATE TO SUPPORT THE VERDICT. 

THE MATERIAL FACTS ARE NOT IN SERIOUS DISPUTE.  A BRIEF SUMMATION
WILL SUFFICE FOR THE POINTS TO BE CONSIDERED. 

FEDERAL OFFICERS RECEIVED CONFIDENTIAL INFORMATION THOUGHT TO BE
RELIABLE THAT ABOUT MIDNIGHT, DECEMBER 30, 1935, A DODGE AUTOMOBILE
WITH SPECIFIED LICENSE PLATE WOULD TRANSPORT "PHONY" WHISKEY FROM A
SPECIFIED DWELLING IN CLEVELAND, OHIO.  ABOUT NINE-THIRTY, OFFICERS
POSTED NEARBY SAW THE DESCRIBED AUTOMOBILE STOP IN FRONT OF THE HOUSE
AND REMAIN THERE FOR AN HOUR.  A MAN, WITH THREE WOMEN AND A PACKAGE,
THEN ENTERED THE CAR AND DROVE AWAY.  IT RETURNED SHORTLY BEFORE
MIDNIGHT, STOPPED AT THE REAR OF THE HOUSE AND REMAINED FOR HALF AN
HOUR.  THE HEADLIGHTS WERE EXTINGUISHED; THE OFFICERS HEARD WHAT SEEMED
TO BE HEAVY PAPER PACKAGES PASSING OVER WOOD.  DOORS SLAMMED;
PETITIONER DROVE THE CAR AWAY, APPARENTLY HEAVILY LOADED.  THE OFFICERS
FOLLOWED IN ANOTHER CAR.  AFTER GOING A FEW BLOCKS PETITIONER STOPPED
BRIEFLY AT A FILLING STATION; THEN HE DROVE TOWARDS HIS OWN RESIDENCE
TWO OR THREE BLOCKS FURTHER ALONG.  THE OFFICERS FOLLOWED.  HE TURNED
INTO A GARAGE A FEW FEET BACK OF HIS RESIDENCE AND WITHIN THE
CURTILAGE.  ONE OF THE PURSUING OFFICERS LEFT THEIR CAR AND FOLLOWED. 
AS PETITIONER WAS GETTING OUT OF HIS CAR THIS OFFICER APPROACHED,
ANNOUNCED HIS OFFICIAL CHARACTER, AND STATED HE WAS INFORMED THAT THE
CAR WAS HAULING BOOTLEG LIQUOR.  PETITIONER REPLIED, "JUST A LITTLE FOR
A PARTY."  ASKED WHETHER THE LIQUOR WAS TAX PAID, HE REPLIED THAT IT
WAS CANADIAN WHISKEY; ALSO, HE SAID IT WAS IN THE TRUNK AT THE REAR OF
THE CAR.  THE OFFICER OPENED THE TRUNK AND FOUND EIGHTY-EIGHT BOTTLES
OF DISTILLED SPIRITS IN UNSTAMPED CONTAINERS.  HE ARRESTED PETITIONER
AND SEIZED BOTH CAR AND LIQUOR.  THE OFFICER HAD NO SEARCH WARRANT. 

AT THE TRIAL COUNSEL UNDERTOOK TO QUESTION THE ARRESTING OFFICERS
RELATIVE TO THE SOURCE OF THE INFORMATION WHICH LED THEM TO OBSERVE
PETITIONER'S ACTIONS.  OBJECTIONS TO THESE QUESTIONS WERE SUSTAINED AND
THIS IS NOW ASSIGNED AS ERROR. 

BEFORE TRIAL PETITIONER'S COUNSEL MOVED "TO SUPPRESS ALL OF THE
EVIDENCE OBTAINED BY THE SEARCH MADE BY THE REVENUE AGENTS IN THE ABOVE
ENTITLED CAUSE, TOGETHER WITH ALL INFORMATION OBTAINED BY REASON OF
SUCH SEARCH, AND TO GRANT AN ORDER REQUIRING THE AGENTS TO RETURN ALL
ARTICLES SEIZED BY REASON OF SAID SEARCH.  ...  "  IN SUPPORT OF THIS
HE RELIED UPON THE FACTS ABOVE STATED.  DENIAL OF THIS MOTION IS SAID
TO BE ERROR. 

THE EXCEPTION IN RESPECT OF TRANSPORTING LIQUOR NOT INTENDED FOR SALE
FOUND IN THE STATUTE AFFORDS MATTER FOR AFFIRMATIVE DEFENSE.  QUEEN V.
UNITED STATES, 64 APP. D.C. 301; 77 F.2D 780. 

IN THE CIRCUMSTANCES THE SOURCE OF THE INFORMATION WHICH CAUSED HIM
TO BE OBSERVED WAS UNIMPORTANT TO PETITIONER'S DEFENSE.  THE LEGALITY
OF THE OFFICERS' ACTION DOES NOT DEPEND UPON THE CREDIBILITY OF
SOMETHING TOLD BUT UPON WHAT THEY SAW AND HEARD - WHAT TOOK PLACE IN
THEIR PRESENCE.  JUSTIFICATION IS NOT SOUGHT BECAUSE OF HONEST BELIEF
BASED UPON CREDIBLE INFORMATION AS IN UNITED STATES V. BLICH, 45 F.2D
627. 

MOREOVER, AS OFTEN POINTED OUT, PUBLIC POLICY FORBIDS DISCLOSURE OF
AN INFORMER'S IDENTITY UNLESS ESSENTIAL TO THE DEFENSE, AS, FOR
EXAMPLE, WHERE THIS TURNS UPON AN OFFICER'S GOOD FAITH.  SEGUROLA V.
UNITED STATES, 16 F.2D 563, 565; SHORE V. UNITED STATES, 60 APP. D.C.
137; 49 F.2D 519, 522; MCINES V. UNITED STATES, 62 F.2D 180. 

CONSIDERING THE DOCTRINE OF CARROLL V. UNITED STATES, 267 U.S.
132(SEE HUSTY V. UNITED STATES, 282 U.S. 694), AND THE APPLICATION OF
THIS TO THE FACTS THERE DISCLOSED, IT SEEMS PLAIN ENOUGH THAT JUST
BEFORE HE ENTERED THE GARAGE THE FOLLOWING OFFICERS PROPERLY COULD HAVE
STOPPED PETITIONER'S CAR, MADE SEARCH AND PUT HIM UNDER ARREST.  SO
MUCH WAS NOT SERIOUSLY CONTROVERTED AT THE ARGUMENT. 

PASSAGE OF THE CAR INTO THE OPEN GARAGE CLOSELY FOLLOWED BY THE
OBSERVING OFFICER DID NOT DESTROY THIS RIGHT.  NO SEARCH WAS MADE OF
THE GARAGE.  EXAMINATION OF THE AUTOMOBILE ACCOMPANIED AN ARREST,
WITHOUT OBJECTION AND UPON ADMISSION OF PROBABLE GUILT.  THE OFFICERS
DID NOTHING EITHER UNREASONABLE OR OPPRESSIVE.  AGNELLO V. UNITED
STATES, 269 U.S. 20, 30; WISNIEWSKI V. UNITED STATES, 47 F.2D 825,
826. 

THE CHALLENGED JUDGMENT IS AFFIRMED. 

FN1  CH. 1, SEC. 201, 48 STAT. 313, 316(U.S.C., TITLE 26, SEC. 1152A,
1152G) - 

"NO PERSON SHALL  ...  TRANSPORT, POSSESS, BUY, SELL, OR TRANSFER ANY
DISTILLED SPIRITS, UNLESS THE IMMEDIATE CONTAINER THEREOF HAS AFFIXED
THERETO A STAMP DENOTING THE QUANTITY OF DISTILLED SPIRITS CONTAINED
THEREIN AND EVIDENCING PAYMENT OF ALL INTERNAL-REVENUE TAXES IMPOSED ON
SUCH SPIRITS.  THE PROVISIONS OF THIS TITLE SHALL NOT APPLY TO - 

     .         .         .         .         . 

"(F)  DISTILLED SPIRITS NOT INTENDED FOR SALE OR FOR USE IN THE
MANUFACTURE OR PRODUCTION OF ANY ARTICLE INTENDED FOR SALE; ...  " 

SEC. 207 - "ANY PERSON WHO VIOLATES ANY PROVISION OF THIS TITLE,  ...
SHALL ON CONVICTION BE PUNISHED BY A FINE NOT EXCEEDING $1,000, OR BY
IMPRISONMENT AT HARD LABOR NOT EXCEEDING FIVE YEARS, OR BY BOTH." 
..END :























CALIFORNIA V. LATIMER, 305 U.S. 255 


NO. 13, ORIGINAL.  ARGUED NOVEMBER 7, 1938.  - DECIDED DECEMBER 5,
1938.  - BILL DISMISSED. 


A BILL FILED HERE BY CALIFORNIA AGAINST THE MEMBERS OF THE RAILROAD
RETIREMENT BOARD AND THE COMMISSIONER OF INTERNAL REVENUE, TO ENJOIN
THEM FROM ENFORCING AGAINST THE STATE BELT RAILROAD - A RAILROAD ON THE
SAN FRANCISCO WATER FRONT, OWNED BY THE STATE, AND OPERATED BY IT IN
INTERSTATE COMMERCE - THE PROVISIONS OF THE RAILROAD RETIREMENT ACTS OF
1935 AND 1937 AND OF THE CARRIERS TAXING ACT OF 1937, HELD WITHOUT
EQUITY. 

1.  AN ALLEGED THREAT OF THE RAILROAD RETIREMENT BOARD TO REQUIRE THE
STATE BELT RAILROAD TO GATHER AND KEEP RECORDS OF ITS EMPLOYEES, DOES
NOT EXPOSE IT TO IRREPARABLE INJURY.  P. 259. 

(A)  A GENERAL ALLEGATION WITHOUT SUPPORTING DETAIL OR SPECIFICATION
THAT COMPLIANCE WITH REGULATIONS OF THE BOARD WOULD SUBJECT THE STATE
"TO GREAT EXPENSE" IS NOT AN ADEQUATE BASIS FOR RELIEF ON THE GROUND OF
IRREPARABLE INJURY.  P. 260. 

(B)  MOREOVER, THE BOARD IS WITHOUT POWER TO ENFORCE ITS REGULATIONS
EXCEPT BY RESORT TO LEGAL PROCEEDINGS, AND THEREIN THE STATE WOULD HAVE
AMPLE OPPORTUNITY TO CHALLENGE THE ENFORCEMENT OF THE ACTS.  P. 260. 

(C)  THE CONTENTION THAT THE POSSIBLE PENALTY, IN CASE OF A
PROSECUTION UNDER SEC. 13 OF THE RETIREMENT ACT OF 1937, IS SO SERIOUS
THAT THE OPPORTUNITY TO DEFEND WOULD NOT BE AN ADEQUATE REMEDY, IS
EXAMINED AND REJECTED.  P. 261. 

2.  THE THREAT OF THE COMMISSIONER OF INTERNAL REVENUE TO REQUIRE
PAYMENT OF THE TAX DOES NOT SUFFICIENTLY SHOW DANGER OF IRREPARABLE
INJURY.  P. 261. 

(A)  PAYMENT, IF NOT DUE, COULD BE RECOVERED.  P. 261. 

(B)  POSSIBLE DELAY IN RECOVERY OF PAYMENT - SUIT COULD NOT BE
INSTITUTED UNTIL SIX MONTHS AFTER CLAIM FOR REFUND WAS MADE, IF THE
COMMISSIONER FAILED EARLIER TO ACT UPON IT - IS NOT A SPECIAL
CIRCUMSTANCE JUSTIFYING RESORT TO A SUIT FOR AN INJUNCTION IN ORDER
THAT THE QUESTION OF LIABILITY MAY BE PROMPTLY DETERMINED.  P. 261. 

(C)  THE CONTENTIONS OF THE STATE THAT TO RAISE THE MONEY WITH WHICH
TO PAY THE STATE'S PORTION OF THE TAX IT WOULD BE NECESSARY TO READJUST
THE TARIFFS OF THE RAILROAD, AND THAT THE DEDUCTION OF THE EMPLOYEES'
PORTION FROM THE PAYROLL WOULD RESULT IN A MULTIPLICITY OF SUITS BY
EMPLOYEES TO FIX THEIR RIGHTS UNDER THE STATE RETIREMENT LAW, HELD NOT
SUFFICIENTLY SUPPORTED IN THE BILL.  P. 262. 

(D)  MERE INCONVENIENCE TO THE STATE IN RAISING THE MONEY TO PAY THE
TAXES DOES NOT ENTITLE IT TO AN INJUNCTION TO TEST THE VALIDITY OR
APPLICABILITY OF THE TAX.  P. 262. 

CALIFORNIA V. LATIMER ET AL. 

BILL OF COMPLAINT FILED BY CALIFORNIA, BY LEAVE OF COURT, IN A SUIT
INVOKING THE ORIGINAL JURISDICTION OF THIS COURT, AGAINST MEMBERS OF
THE RAILROAD RETIREMENT BOARD AND THE COMMISSIONER OF INTERNAL REVENUE
TO ENJOIN ENFORCEMENT OF PROVISIONS OF THE RAILROAD RETIREMENT ACTS OF
1935 AND 1937 AND THE CARRIERS TAXING ACT OF 1937. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

CALIFORNIA OWNS THE RAILROAD ALONG THE SAN FRANCISCO WATER FRONT
KNOWN AS STATE BELT RAILROAD, AND OPERATES IT IN INTERSTATE COMMERCE. 
SHERMAN V. UNITED STATES, 282 U.S. 25; UNITED STATES V. CALIFORNIA, 297
U.S. 175.  ON LEAVE GRANTED, THE STATE FILED IN THIS COURT THIS BILL
AGAINST THE MEMBERS OF THE RAILROAD RETIREMENT BOARD AND THE
COMMISSIONER OF INTERNAL REVENUE, INDIVIDUALLY AND IN THEIR OFFICIAL
CAPACITIES, TO ENJOIN THEM FROM ENFORCING AGAINST THAT RAILROAD
PROVISIONS OF THE ACTS OF CONGRESS KNOWN AS THE RAILROAD RETIREMENT
ACTS OF 1935 AND 1937  FN1 AND OF THE CARRIERS TAXING ACT OF 1937. 
FN2 

THE BILL RECITES THAT CALIFORNIA HAS A STATE EMPLOYEES' RETIREMENT
SYSTEM SUSTAINED BY A FUND TO WHICH THE STATE AND ITS EMPLOYEES
CONTRIBUTE; AND THAT ALL THE PERSONS EMPLOYED IN THE OPERATION OF STATE
BELT RAILROAD ARE MEMBERS OF THAT RETIREMENT SYSTEM AND ARE ENTITLED TO
PENSIONS THEREUNDER, UNLESS THEY ARE MEMBERS OF A RETIREMENT SYSTEM
SUPPORTED WHOLLY, OR IN PART, BY FUNDS OF THE UNITED STATES; THAT THE
THREE ACTS OF CONGRESS NAMED HAVE FOR THEIR SOLE PURPOSE THE
ESTABLISHMENT OF A PENSION SYSTEM OF ANNUITIES AND OTHER BENEFITS FOR
EMPLOYEES OF INTERSTATE RAILROADS; AND THAT THE FEDERAL SYSTEM IS
SUSTAINED BY TAXES IMPOSED BY THE CARRIERS TAXING ACT.  THE BILL
ASSERTS, APPARENTLY, THAT AS A MATTER OF STATUTORY CONSTRUCTION, THE
FEDERAL SYSTEM IS NOT APPLICABLE TO THE EMPLOYEES OF STATE BELT
RAILROAD; AND APPARENTLY THAT IF CONSTRUED AS APPLICABLE TO THEM, THE
LEGISLATION IS UNCONSTITUTIONAL.  THE BILL CHARGES THAT THE RAILROAD
RETIREMENT BOARD HAS THREATENED TO REQUIRE THE COMPLAINANT TO GATHER
AND KEEP RECORDS CONCERNING THE EMPLOYEES OF THE STATE BELT RAILROAD,
WHICH WOULD SUBJECT IT "TO GREAT EXPENSE"; AND THAT THE BOARD "WILL
ENFORCE AGAINST THE COMPLAINANT, ITS OFFICERS, AGENTS, AND EMPLOYEES
CERTAIN PENALTIES IF IT REFUSES" TO DO SO.  THE BILL CHARGES, ALSO,
THAT THE COMMISSIONER OF INTERNAL REVENUE HAS THREATENED TO ENFORCE
TAXES, UNDER THE CARRIERS TAXING ACT, AND WILL SUBJECT IT TO HEAVY
FINES AND PENALTIES IF IT FAILS TO PAY THE SAME.  THE RELIEF PRAYED IS
THAT THE THREE ACTS OF CONGRESS BE DECLARED INAPPLICABLE TO STATE BELT
RAILROAD; THAT THE MEMBERS OF THE RAILROAD RETIREMENT BOARD BE
ENJOINED, AMONG OTHER THINGS, FROM REQUIRING THE RAILROAD TO ASSEMBLE
AND FURNISH THE INFORMATION REQUESTED; AND THAT THE COMMISSIONER OF
INTERNAL REVENUE BE ENJOINED FROM ENFORCING COLLECTION OF THE TAXES
CLAIMED. 

THE DEFENDANTS MOVED TO DISMISS THE BILL, ASSIGNING THEREFOR NINE
GROUNDS.  WE NEED CONSIDER ONLY THE OBJECTION THAT THE BILL IS WITHOUT
EQUITY.  FN3  FOR WE ARE OF OPINION THAT THERE WAS ADEQUATE OPPORTUNITY
TO TEST AT LAW THE APPLICABILITY AND CONSTITUTIONALITY OF THE ACTS OF
CONGRESS; AND THAT NO DANGER IS SHOWN OF IRREPARABLE INJURY IF THAT
COURSE IS PURSUED. 

FIRST.  THE ALLEGED THREAT OF THE RAILROAD RETIREMENT BOARD TO
REQUIRE STATE BELT RAILROAD TO GATHER AND KEEP RECORDS OF ITS EMPLOYEES
DOES NOT EXPOSE IT TO IRREPARABLE INJURY.  THE RAILROAD RETIREMENT ACT
OF 1937 PROVIDES: 

"SEC. 8.  EMPLOYERS SHALL FILE WITH THE BOARD, IN SUCH MANNER AND
FORM AND AT SUCH TIMES AS THE BOARD BY RULES AND REGULATIONS MAY
PRESCRIBE, RETURNS UNDER OATH OF MONTHLY COMPENSATION OF EMPLOYEES,
AND, IF THE BOARD SHALL SO REQUIRE, SHALL FURNISH EMPLOYEES WITH
STATEMENTS OF THEIR MONTHLY COMPENSATION AS REPORTED TO THE BOARD. 
... 

"SEC. 10(B) 4.  ...  THE BOARD SHALL HAVE POWER TO REQUIRE ALL
EMPLOYERS AND EMPLOYEES AND ANY OFFICER, BOARD, COMMISSION, OR OTHER
AGENCY OF THE UNITED STATES TO FURNISH SUCH INFORMATION AND RECORDS AS
SHALL BE NECESSARY FOR THE ADMINISTRATION OF SUCH ACTS.  THE SEVERAL
DISTRICT COURTS OF THE UNITED STATES AND THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT OF COLUMBIA SHALL HAVE JURISDICTION UPON
SUIT BY THE BOARD TO COMPEL OBEDIENCE TO ANY ORDER OF THE BOARD ISSUED
PURSUANT TO THIS SECTION  ..." 

"SEC. 13.  ANY OFFICER OR AGENT OF AN EMPLOYER  ...  WHO SHALL
WILLFULLY FAIL OR REFUSE TO MAKE ANY REPORT OR FURNISH ANY INFORMATION
REQUIRED, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 10(B) 4, BY THE
BOARD  ...  SHALL BE PUNISHED BY A FINE OF NOT MORE THAN $10,000 OR BY
IMPRISONMENT NOT EXCEEDING ONE YEAR." 

THE ONLY "THREATS" MADE AGAINST THE COMPLAINANT IN CONNECTION WITH
THESE SECTIONS IS A RULING BY THE RAILROAD RETIREMENT BOARD THAT THE
STATE BELT RAILROAD IS SUBJECT TO THE RAILROAD RETIREMENT ACTS.  NO
SPECIFIC ACTION IN RELATION TO THAT RAILROAD APPEARS TO HAVE BEEN TAKEN
BY THE BOARD.  FN4  REGULATIONS HAVE BEEN PRESCRIBED UNDER SECS. 8 AND
10 WHICH ARE SIMPLE AND OF A TYPE WHICH CAN BE COMPLIED WITH LARGELY BY
TRANSCRIPTIONS FROM PAYROLLS N5.  THE BILL ALLEGES THAT COMPLIANCE WITH
THE REGULATIONS WOULD SUBJECT THE STATE "TO GREAT EXPENSE."  NO
SUPPORTING DETAIL OR SPECIFICATION IS GIVEN.  SUCH A GENERAL STATEMENT
IS NOT AN ADEQUATE BASIS FOR RELIEF ON THE GROUND OF IRREPARABLE
DAMAGES.  FN6  THE TRIFLING EXPENSE OF TEMPORARILY COMPLYING WITH THE
REGULATION UNTIL THE APPLICABILITY OF THE ACT SHALL HAVE BEEN
JUDICIALLY DETERMINED, LIKE THE EXPENSE OF THE ADMINISTRATIVE HEARINGS
COMPLAINED OF IN MYERS V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41,
50, 51, AND PETROLEUM EXPLORATION, INC. V. PUBLIC SERVICE COMM'N, 304
U.S. 209, 220, 221, IS NOT SUFFICIENT TO SUPPORT THE CLAIM OF
IRREPARABLE INJURY INDISPENSABLE TO INTERPOSITION BY INJUNCTION. 
COMPARE SPIELMAN MOTOR SALES CO. V. DODGE, 295 U.S. 89, 95, 96. 

MOREOVER, THE BOARD IS WITHOUT POWER TO ENFORCE ITS REGULATIONS
EXCEPT BY RESORT TO LEGAL PROCEEDINGS, AS PROVIDED IN SEC. 10(B) 4; AND
IN ANY SUIT WHICH IT MAY INSTITUTE TO ENFORCE THE REGULATIONS  FN7
AMPLE OPPORTUNITY IS AFFORDED TO DEFEND, ON THE GROUND THAT STATE BELT
RAILROAD IS NOT SUBJECT TO THE RAILROAD RETIREMENT ACTS.  IT IS
CONTENDED THAT THE POSSIBLE PENALTY, IN CASE OF A PROSECUTION UNDER
SEC. 13, IS SO SERIOUS AS TO PREVENT THE OPPORTUNITY TO DEFEND FROM
BEING AN ADEQUATE REMEDY.  COMPARE EX PARTE YOUNG, 209 U.S. 123, 165. 
NO PROSECUTION HAS BEEN INSTITUTED OR THREATENED.  AND AUTHORITY TO
INSTITUTE SUCH A PROCEEDING RESTS NOT WITH THE RAILROAD RETIREMENT
BOARD, BUT WITH THE UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF
CALIFORNIA, WHO IS NOT MADE DEFENDANT IN THIS SUIT.  FN8  FURTHERMORE,
IT MAY BE DOUBTED WHETHER A REFUSAL TO COMPLY WITH THE REGULATION WOULD
BE DEEMED WILLFUL, IF BASED ON AN HONEST BELIEF THAT THE ACT IS NOT
APPLICABLE TO A RAILROAD OPERATED BY THE STATE.  COMPARE UNITED STATES
V. MURDOCK, 290 U.S. 389, 394-396. 

SECOND.  THE ALLEGED THREAT OF THE COMMISSIONER OF INTERNAL REVENUE
TO REQUIRE PAYMENT OF THE TAX DOES NOT SHOW DANGER OF IRREPARABLE
INJURY.  THE ONLY THREAT ALLEGED IS THE RULING THAT THE CARRIERS TAXING
ACT IS APPLICABLE TO THIS RAILROAD - A RULING MADE IN ANSWER TO AN
ENQUIRY BY THE ATTORNEY GENERAL OF THE STATE.  THE TAX FOR THE YEAR IS
$7,862.32 PAYABLE BY THE STATE BELT RAILROAD; AND AN EQUAL AMOUNT
PAYABLE BY THE EMPLOYEES TO BE DEDUCTED BY IT FROM THEIR COMPENSATION. 
PAYMENT OF THE TAX WOULD NOT EXPOSE THE STATE TO IRREPARABLE INJURY,
FN9  SINCE THE AMOUNT PAID WITH INTEREST COULD BE RECOVERED IF NOT
DUE.  PAYMENT FOLLOWED BY PROCEEDINGS TO RECOVER THE AMOUNT WOULD
INVOLVE SOME DELAY, AS AN ACTION AT LAW TO RECOVER THE SUM PAID COULD
NOT BE INSTITUTED UNTIL SIX MONTHS AFTER MAKING THE CLAIM FOR REFUND,
IF THE COMMISSIONER SHOULD FAIL TO ACT EARLIER UPON IT.  FN10  SUCH
POSSIBLE DELAY, IT IS URGED, IS A SPECIAL CIRCUMSTANCE WHICH JUSTIFIES
RESORT TO A SUIT FOR AN INJUNCTION IN ORDER THAT THE QUESTION OF
LIABILITY MAY BE PROMPTLY DETERMINED.  IF THE DELAY INCIDENT TO SUCH
PROCEEDINGS JUSTIFIED REFUSAL TO PAY A TAX, THE FEDERAL RULE THAT A
SUIT IN EQUITY WILL NOT LIE TO RESTRAIN COLLECTION ON THE SOLE GROUND
THAT THE TAX IS ILLEGAL,  FN11  COULD HAVE LITTLE APPLICATION.  FOR
POSSIBLE DELAY OF THAT CHARACTER IS THE COMMON INCIDENT OF PRACTICALLY
EVERY CONTEST OVER THE VALIDITY OF A FEDERAL TAX. 

IT IS URGED THAT IN ORDER TO RAISE THE MONEY WITH WHICH TO PAY THE
STATE'S PORTION OF THE TAX, IT WOULD BE NECESSARY TO READJUST THE
TARIFFS OF STATE BELT RAILROAD; AND THAT THE DEDUCTION OF THE
EMPLOYEES' PORTION FROM THE PAYROLL WOULD RESULT IN A MULTIPLICITY OF
SUITS BY EMPLOYEES TO RECOVER THE AMOUNTS AND TO REESTABLISH THEIR
RIGHTS AND PRIVILEGES UNDER THE LAWS OF THE STATE.  THE MEAGRE
STATEMENTS OF THE BILL DO NOT CONVINCE US THAT THE APPREHENSION ALLEGED
IS WELL FOUNDED.  THE STATE EMPLOYEES RETIREMENT ACT ALSO REQUIRES THE
STATE BELT RAILROAD TO MAKE DEDUCTIONS FROM THE SALARIES OF ITS
EMPLOYEES.  THE BILL DOES NOT SHOW THE PRECISE RELATIONSHIP BETWEEN THE
AMOUNTS REQUIRED TO BE DEDUCTED BY THE STATE AND FEDERAL ACTS, OR EVEN,
IF THE AMOUNT OF THE FEDERAL DEDUCTION IS GREATER, THAT IT IS
IMPOSSIBLE FOR THE STATE BELT RAILROAD TO WORK OUT WITH ITS EMPLOYEES A
WAY OF ADJUSTING ITS AFFAIRS DURING THE PERIOD OF UNCERTAINTY AS TO
WHICH ACT IS APPLICABLE.  MERE INCONVENIENCE TO THE TAXPAYER IN RAISING
THE MONEY WITH WHICH TO PAY TAXES IS NOT UNCOMMON, AND IS NOT A SPECIAL
CIRCUMSTANCE WHICH ENTITLES ONE TO RESORT TO A SUIT FOR AN INJUNCTION
IN ORDER TO TEST THE VALIDITY OR APPLICABILITY OF THE TAX.  FOR AUGHT
THAT APPEARS PROMPT PAYMENT OF THE TAX AND CLAIM OF REFUND WOULD HAVE
LED TO AN EARLY DETERMINATION OF THE LIABILITY HERE CONTESTED.  BILL
DISMISSED. 

FN1  ACT OF AUGUST 29, 1935, C. 812, 49 STAT. 967, AS AMENDED JUNE
24, 1937, C. 382, PART I, 50 STAT. 307, 45 U.S.C., SEC. 228A-R (1937
SUPP.). 

FN2  ACT OF JUNE 29, 1937, C. 405, 50 STAT. 435, 45 U.S.C., SECS. 261
73(1937 SUPP.). 

FN3  THIS OBJECTION WAS THE BASIS OF TWO OF THE REASONS GIVEN IN
SUPPORT OF THE MOTION TO DISMISS.  THE OTHER SEVEN ARE:  (1) THE
INDIVIDUAL CITIZENSHIP OF DEFENDANTS CAN FORM NO BASIS FOR THE ORIGINAL
JURISDICTION OF THE COURT.  THE DEFENDANTS CAN AND WILL ACT ONLY AS
OFFICIALS OF THE UNITED STATES; AND AS OFFICIALS THEY ARE CITIZENS OF
NO STATE.  (2) THE COLLECTOR OF INTERNAL REVENUE FOR THE FIRST DISTRICT
OF CALIFORNIA AND THE EMPLOYEES OF THE STATE BELT RAILROAD HAVE NOT
BEEN JOINED AS DEFENDANTS.  THEY ARE INDISPENSABLE PARTIES IN WHOSE
ABSENCE THE COURT SHOULD NOT PROCEED.  (3) THE CAUSE IS NOT
MAINTAINABLE IN THIS COURT, SINCE THE COLLECTOR OF INTERNAL REVENUE FOR
THE FIRST DISTRICT OF CALIFORNIA, A CITIZEN OF CALIFORNIA, SHOULD BE
MADE A PARTY, AND TO JOIN HIM WOULD DEPRIVE THE COURT OF ORIGINAL
JURISDICTION.  (4) THE CAUSE IS NOT MAINTAINABLE IN THIS COURT, SINCE
THE EMPLOYEES OF THE STATE BELT RAILROAD, CITIZENS OF CALIFORNIA,
SHOULD BE MADE PARTIES, AND TO JOIN ANY OF THEM WOULD DEPRIVE THE COURT
OF ORIGINAL JURISDICTION.  (5) MAINTENANCE OF THE SUIT IS PROHIBITED BY
REAL PARTY IN INTEREST AND HENCE AN INDISPENSABLE PARTY.  (7) THE
ISSUES PRESENTED BY COMPLAINANT HAVE BEEN CLEARLY DECIDED AGAINST IT BY
PREVIOUS DECISIONS OF THIS COURT, AND A RE-EXAMINATION OF THOSE
CONTENTIONS WOULD SERVE NO USEFUL PURPOSE. 

FN4  COMPARE DALTON ADDING MACHINE CO. V. STATE CORPORATION COMM'N,
236 U.S. 699, 701; CONTINENTAL BAKING CO. V. WOODRING, 286 U.S. 352,
367-68; STATE CORPORATION COMM'N V. WICHITA GAS CO., 290 U.S. 561, 568
69. 

FN5  3 FEDERAL REGISTER, P. 22 ET SEQ. (PROMULGATED DECEMBER 31,
1937), 3 FEDERAL REGISTER, P. 218(PROMULGATED JANUARY 17, 1938), IN
EFFECT AT THE TIME LEAVE TO FILE THE BILL OF COMPLAINT WAS GRANTED, MAY
16, 1938, LATER SUPERSEDED BY 3 FEDERAL REGISTER, PP. 1478, 1493 ET
SEQ., PART 50(PROMULGATED MAY 31, 1938). 

FN6  COMPARE SHELTON V. PLATT, 139 U.S. 591, 596; CRUICKSHANK V.
BIDWELL, 176 U.S. 73, 81; INDIANA MFG. CO. V. KOEHNE, 188 U.S. 681,
690; BOISE ARTESIAN WATER CO. V. BOISE CITY, 213 U.S. 276, 285. 

FN7  COMPARE CAVANAUGH V. LOONEY, 248 U.S. 453; FENNER V. BOYKIN, 271
U.S. 240; HURLEY V. KINCAID, 285 U.S. 95. 

FN8  COMPARE FEDERAL TRADE COMM'N V. CLAIRE FURNACE CO., 274 U.S.
160, 173-74; PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 620-22. 

FN9  DOWS V. CHICAGO, 11 WALL.  108.  SEE ALSO CASES IN NOTE 6. 

FN10  R.S. SEC. 3226, AS AMENDED BY SEC. 1103, REVENUE ACT OF 1932. 

FN11  SEE CASES UNDER NOTE 6. 
..END :




















MCDONALD V. THOMPSON, 305 U.S. 263 


NO. 55.  ARGUED NOVEMBER 8, 9, 1938.  - DECIDED DECEMBER 5, 1938.  - 95
F.2D 937, AFFIRMED. 


1.  SECTION 206(A) OF THE FEDERAL MOTOR CARRIER ACT, 1935, DECLARES
THAT NO COMMON CARRIER BY MOTOR VEHICLE SUBJECT TO THE PROVISIONS OF
THE ACT MAY ENGAGE IN INTERSTATE COMMERCE UNLESS THERE SHALL HAVE BEEN
ISSUED BY THE INTERSTATE COMMERCE COMMISSION A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY AUTHORIZING THE OPERATION.  A PROVISO
REQUIRES THAT THE COMMISSION ISSUE A CERTIFICATE WITHOUT FURTHER PROOF
AS TO PUBLIC CONVENIENCE AND NECESSITY, WHERE THE APPLICANT WAS "IN
BONA FIDE OPERATION" AS A COMMON CARRIER BY MOTOR VEHICLE ON JUNE 1,
1935, AND SINCE THAT TIME, OVER ROUTES FOR WHICH APPLICATION IS MADE;
AND THE APPLICANT IN SUCH CASE IS AUTHORIZED TO CONTINUE OPERATION
PENDING THE DETERMINATION OF THE APPLICATION.  HELD THAT, ONE WHO HAD
BEEN OPERATING AS A COMMON CARRIER WITHOUT THE AUTHORITY OF THE STATE
COMMISSION - HIS APPLICATION THEREFOR HAVING BEEN DENIED PRIOR TO 1935
BY AN ORDER SUBSEQUENTLY UPHELD BY THE STATE COURT - HAD NOT BEEN "IN
BONA FIDE OPERATION" WITHIN THE MEANING OF THE PROVISO.  P. 266. 

2.  AS THE MOTOR CARRIER ACT IS REMEDIAL AND TO BE CONSTRUED
LIBERALLY, A PROVISO DEFINING EXEMPTIONS IS TO BE READ IN HARMONY WITH
THE PURPOSE OF THE MEASURE AND HELD TO EXTEND ONLY TO CARRIERS PLAINLY
WITHIN ITS TERMS.  P. 266. 

MCDONALD V. THOMPSON ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 580, TO REVIEW A DECREE WHICH REVERSED, WITH
DIRECTIONS TO DISMISS THE BILL, A DECREE OF INJUNCTION RESTRAINING
ENFORCEMENT AGAINST PETITIONER OF THE MOTOR TRUCK LAW OF TEXAS. 

PETITIONER IN THIS SUIT CLAIMS "GRANDFATHER RIGHTS" BASED UPON HIS
UNLAWFUL OPERATION UPON THE HIGHWAYS OF THE STATE OF TEXAS.  HIS "RIGHT
OF-WAY" FOR HIS INTERSTATE OPERATIONS HAS NEVER BEEN SECURED FROM THE
CONSTITUTED AUTHORITIES OF THE STATE, AND ALL OF HIS OPERATIONS HAVE
BEEN AS A TRESPASSER UPON THE STATE HIGHWAYS, AND UNLESS THE STATE LAWS
HAVE BEEN SUPERSEDED THE MERE FILING OF HIS APPLICATION FOR CERTIFICATE
WOULD CONFER NO NEW RIGHT UPON HIM TO CONTINUE HIS UNLAWFUL USE OF
THESE TEXAS HIGHWAYS.  TOWN OF CONWAY V. ATLANTIC COAST LINE R. CO., 20
F.2D 250, 259. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS SUIT IN THE FEDERAL COURT FOR THE NORTHERN
DISTRICT OF TEXAS AGAINST THE MEMBERS OF THE TEXAS RAILROAD COMMISSION
AND ITS ENFORCEMENT OFFICERS TO ENJOIN THEM FROM ENFORCING AGAINST HIM
THE STATE MOTOR TRUCK LAW.  FN1  RESPONDENTS ANSWERED; THERE WAS A
TRIAL; THE COURT MADE FINDINGS OF FACT, STATED ITS CONCLUSIONS OF LAW,
AND ENTERED A DECREE PERMANENTLY ENJOINING RESPONDENTS FROM INTERFERING
WITH PETITIONER'S BUSINESS IN INTERSTATE TRANSPORTATION.  THE CIRCUIT
COURT OF APPEALS REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS THE
BILL.  95 F.2D 937.  THIS COURT GRANTED A WRIT OF CERTIORARI. 

MOTOR FOR HIRE OVER PUBLIC HIGHWAYS OF THE STATE TO OBTAIN FROM THE
RAILROAD COMMISSION A CERTIFICATE OF CONVENIENCE AND NECESSITY. 
TRANSPORTATION, TO PRESCRIBE RULES FOR SAFETY OF CARRIERS' OPERATIONS,
AND TO SUPERVISE ALL MATTERS AFFECTING RELATIONSHIPS BETWEEN THE
CARRIERS AND THE PUBLIC. 

THE FEDERAL MOTOR CARRIER ACT, 1935,  FN2  SEC. 206(A), DECLARES THAT
NO COMMON CARRIER BY MOTOR VEHICLE SUBJECT TO ITS PROVISIONS SHALL
ENGAGE IN INTERSTATE COMMERCE UNLESS THERE IS IN FORCE WITH RESPECT TO
SUCH CARRIER A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED
BY THE INTERSTATE COMMERCE COMMISSION AUTHORIZING THE OPERATION.  A
PROVISO IN THAT SECTION DECLARES THAT, IF ANY SUCH CARRIER "WAS IN BONA
FIDE OPERATION AS A COMMON CARRIER BY MOTOR VEHICLE ON JUNE 1, 1935,"
OVER ROUTES FOR WHICH APPLICATION IS MADE AND HAS SO OPERATED SINCE
THAT TIME, THE COMMISSION SHALL ISSUE THE CERTIFICATE WITHOUT REQUIRING
FURTHER PROOF THAT PUBLIC CONVENIENCE AND NECESSITY WILL BE SERVED BY
THE CARRIER'S OPERATION.  PENDING DETERMINATION OF THE APPLICATION, THE
APPLICANT IS AUTHORIZED TO CONTINUE OPERATIONS. 

SINCE SOME TIME BEFORE THE PASSAGE OF THE ACT, PETITIONER HAS BEEN
CONTINUOUSLY USING TEXAS HIGHWAYS IN INTERSTATE TRANSPORTATION OF
PROPERTY BY MOTOR VEHICLE FOR HIRE.  CLAIMING TO HAVE BEEN IN BONA FIDE
OPERATION AS CONTEMPLATED BY THE PROVISO, HE MADE TIMELY APPLICATION TO
THE INTERSTATE COMMERCE COMMISSION FOR A CERTIFICATE AUTHORIZING HIM TO
CONTINUE TO OPERATE OVER THE HIGHWAYS HE HAS BEEN USING.  THE
APPLICATION IS STILL PENDING, AND PETITIONER INSISTS THAT,
NOTWITHSTANDING STATE LAW, HE IS ENTITLED TO CONTINUE OPERATIONS UNDER
THE PROVISO.  THE QUESTION FIRST TO BE DECIDED IS WHETHER HIS CLAIM OF
BONA FIDE OPERATION IS WELL FOUNDED. 

IN MAY OF 1934 HE APPLIED TO THE STATE COMMISSION FOR A CERTIFICATE
AUTHORIZING OPERATION AS A COMMON CARRIER IN INTERSTATE COMMERCE.  JULY
14, 1934, THE COMMISSION DENIED THE APPLICATION ON THE GROUND THAT THE
PROPOSED OPERATIONS WOULD SUBJECT THE HIGHWAYS NAMED IN IT TO EXCESSIVE
BURDEN AND ENDANGER AND INTERFERE WITH ORDINARY USE BY THE PUBLIC. 
PETITIONER APPEALED TO THE DISTRICT COURT OF TRAVIS COUNTY AND OBTAINED
A DECREE ENJOINING THE COMMISSION FROM INTERFERING WITH HIS
OPERATIONS.  THE COURT OF CIVIL APPEALS, JANUARY 8, 1936, REVERSED AND
DISSOLVED THE INJUNCTION.  90 S.W.2D 581.  THUS IT APPEARS THAT
PETITIONER'S OPERATIONS HAVE BEEN WITHOUT AUTHORITY OF THE TEXAS
COMMISSION AND, UNLESS WITHIN THE PROVISO OF THE FEDERAL ACT, WITHOUT
AUTHORITY OF FEDERAL LAW. 

EXACT DEFINITION OF "BONA FIDE OPERATION" IS NOT NECESSARY.  AS THE
ACT IS REMEDIAL AND TO BE CONSTRUED LIBERALLY, THE PROVISO DEFINING
EXEMPTIONS IS TO BE READ IN HARMONY WITH THE PURPOSE OF THE MEASURE AND
HELD TO EXTEND ONLY TO CARRIERS PLAINLY WITHIN ITS TERMS.  PIEDMONT &
NORTHERN RY. CO. V. INTERSTATE COMMERCE COMM'N, 286 U.S. 299, 311.  TO
LIMIT THE MEANING TO MERE PHYSICAL OPERATION WOULD BE TO ELIMINATE
"BONA FIDE."  THAT WOULD BE CONTRARY TO THE RULE THAT ALL WORDS OF A
STATUTE ARE TO BE TAKEN INTO ACCOUNT AND GIVEN EFFECT IF THAT CAN BE
DONE CONSISTENTLY WITH THE PLAINLY DISCLOSED LEGISLATIVE INTENT. 
GINSBERG & SONS V. POPKIN, 285 U.S. 204, 208.  EX PARTE PUBLIC NATIONAL
BANK, 278 U.S. 101, 104.  THERE IS NOTHING TO JUSTIFY REJECTION OF
THESE QUALIFYING WORDS.  THE EXPRESSION, "IN BONA FIDE OPERATION,"
SUGGESTS ABSENCE OF EVASION, EXCLUDES THE IDEA THAT MERE ABILITY TO
SERVE AS A COMMON CARRIER IS ENOUGH, INCLUDES ACTUAL RATHER THAN
POTENTIAL OR SIMULATED SERVICE, AND IN CONTEXT IMPLIES RECOGNITION OF
THE POWER OF THE STATE TO WITHHOLD OR CONDITION THE USE OF ITS HIGHWAYS
IN THE BUSINESS OF TRANSPORTATION FOR HIRE.  PLAINLY THE PROVISO DOES
NOT EXTEND TO ONE OPERATING AS A COMMON CARRIER ON PUBLIC HIGHWAYS OF A
STATE IN DEFIANCE OF ITS LAWS. 

AS PETITIONER IS NOT PROTECTED IN HIS OPERATION AS A COMMON CARRIER
BY THE PROVISO, WE NEED NOT CONSIDER TO WHAT EXTENT, IF AT ALL, THE
FEDERAL MOTOR CARRIER ACT SUPERSEDED THE STATE MOTOR TRUCK LAW, OR ANY
OTHER QUESTION PRESENTED BY PETITIONER.  AFFIRMED. 

FN1  ACTS REG. SESS., 42D LEG., 1931, C. 277; VERNON'S TEX. ANN. CIV.
ST., ART. 911B. 

FN2  ACT OF AUGUST 9, 1935, 49 STAT. 543, 551; 49 U.S.C., SEC.
306(A). 
..END :








M.E. BLATT CO. V. U.S., 305 U.S. 267 


NO. 98.  ARGUED NOVEMBER 15, 16, 1938.  - DECIDED DECEMBER 5, 1938.  -
87 CT.CLS.  413 - 23 F.SUPP.  461, REVERSED. 


1.  SPECIAL FINDINGS OF FACT MADE BY THE COURT OF CLAIMS ARE NOT
AFFECTED BY ANY STATEMENT OF FACT, REASONING, OR CONCLUSION THAT MAY BE
FOUND IN ITS OPINION.  P. 277. 

2.  RENT IS A FIXED SUM, OR PROPERTY AMOUNTING TO A FIXED SUM.  IT
DOES NOT INCLUDE PAYMENTS, UNCERTAIN AS TO AMOUNT AND TIME, MADE BY THE
LESSEE FOR THE COST OF IMPROVEMENTS.  P. 277. 

3.  IMPROVEMENTS MADE BY THE LESSEE, EVEN WHEN REQUIRED BY THE LEASE,
WILL NOT BE DEEMED RENT UNLESS SUCH INTENTION IS PLAINLY DISCLOSED. 
ID. 

4.  IMPROVED REAL PROPERTY WAS LEASED FOR USE AS A PICTURE THEATER,
FOR TEN YEARS BEGINNING UPON COMPLETION OF IMPROVEMENTS MADE AND PAID
FOR PARTLY BY THE LESSOR AND PARTLY BY THE LESSEE.  THE LEASE PROVIDED
THAT IMPROVEMENTS MADE BY THE LESSEE SHOULD BECOME THE PROPERTY OF THE
LESSOR, ON EXPIRATION OR EARLIER TERMINATION OF THE LEASEHOLD.  THE
COMMISSIONER OF INTERNAL REVENUE ESTIMATED THE DEPRECIATED VALUES, AT
THE END OF TEN YEARS, OF THE LESSEE'S IMPROVEMENTS, OMITTING SOME WHICH
COULD THEN HAVE NO VALUE, AND ADDED ONE-TENTH OF THE TOTAL ESTIMATE TO
THE LESSOR'S INCOME FOR THE TAX YEAR NEXT FOLLOWING THE COMMENCEMENT OF
THE LEASE.  HELD ERRONEOUS. 

(1)  THE QUESTION PRESENTED IS WHETHER, UNDER THIS PARTICULAR LEASE,
ONE-TENTH OF THIS "ESTIMATED DEPRECIATED VALUE," AT THE END OF THE
TERM, WAS INCOME OF THE LESSOR IN THE FIRST YEAR OF THE TERM.  THERE IS
NOTHING IN THE FINDINGS TO SUGGEST THAT COST OF ANY IMPROVEMENT MADE BY
LESSEE WAS RENT OR AN EXPENDITURE NOT PROPERLY TO BE ATTRIBUTED TO ITS
CAPITAL OR MAINTENANCE ACCOUNT AS DISTINGUISHED FROM OPERATING
EXPENSE.  THEY DISCLOSE NO BASIS OF VALUE ON WHICH TO LAY AN INCOME TAX
OR THE TIME OF REALIZATION OF TAXABLE GAIN, IF ANY THERE WAS.  THE
FIGURES MADE BY THE COMMISSIONER ARE NOT DEFINED.  THE FINDINGS DO NOT
SHOW WHETHER THEY ARE INTENDED TO REPRESENT VALUE OF IMPROVEMENTS IF
REMOVED OR THE AMOUNT ATTRIBUTABLE TO THEM AS A PART OF THE BUILDING. 
THE FIGURES THEMSELVES REPEL THE SUGGESTION THAT THEY WERE INTENDED TO
REPRESENT AMOUNTS OBTAINABLE FOR THE ITEMS IF REMOVED; IT IS NOT TO BE
ASSUMED THAT THEY WERE INTENDED AS VALUATIONS OF SALVAGE AT THE END OF
THE TERM; AND IT DOES NOT APPEAR THAT THE IMPROVEMENTS, IF DETACHED,
WOULD THEN HAVE ANY VALUE, EVEN AS JUNK, OVER NECESSARY COST OF
REMOVAL.  EQUALLY CONJECTURAL WOULD BE ASSUMPTION THAT THE FIGURES
REPRESENT ENHANCEMENT OF VALUE OF THE LEASED PREMISES BY REASON OF THE
IMPROVEMENTS WHEN NEW, OR AS DETERIORATED AT THE END OF THE TERM. 
PRESENT OR FUTURE VALUE OF THE PREMISES, HOWEVER ASCERTAINED, IS SINGLE
IN SUBSTANCE; IT CAN NOT BE ARRIVED AT BY MERE SUMMATION OF ACTUAL OR
ESTIMATED COST OF CONSTITUENT ELEMENTS, NEW OR DEPRECIATED.  PP. 276,
ET SEQ. 

(2)  GRANTING THAT THE IMPROVEMENTS INCREASED THE VALUE OF THE
BUILDING, THE ENHANCEMENT WAS NOT REALIZED INCOME OF LESSOR; IT WAS
ADDITION TO CAPITAL, NOT INCOME WITHIN THE MEANING OF THE REVENUE ACT
OF 1932, SEC. 22(A).  P. 279. 

(3)  ASSUMING THAT AT SOMETIME VALUE OF THE IMPROVEMENTS WOULD BE
INCOME OF LESSOR, IT CAN NOT BE REASONABLY ASSIGNED TO THE YEAR IN
WHICH THEY WERE INSTALLED.  P. 280. 

M.E. BLATT CO. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 581, TO REVIEW A JUDGMENT REJECTING A CLAIM FOR
RECOVERY OF MONEY PAID AS AN ADDITIONAL INCOME TAX. 

WHEN IMPROVEMENTS ARE MADE BY A LESSEE, AS IN THIS CASE, THERE IS NO
REALIZATION OF GAIN BY THE LESSOR AT THE TIME WHEN THE IMPROVEMENTS ARE
COMPLETED. 

THE TENANT AGREED TO PAINT AND DECORATE (PROVIDED THE LANDLORD WOULD
PAY $1500 OF THE COST) AND TO INSTALL THE LATEST TYPE OF MOVING PICTURE
AND TALKING APPARATUS, THEATRE SEATS, AND ALL OTHER FIXTURES,
FURNITURE, AND EQUIPMENT NECESSARY FOR THE SUCCESSFUL OPERATION OF A
MODERN UP-TO-DATE THEATRE.  THAT WAS ALL.  THE TENANT WAS NOT REQUIRED
TO SPEND ANY CERTAIN AMOUNT.  THE AMOUNT WAS LEFT ENTIRELY TO HIS
DISCRETION AND SELF-INTEREST.  HE HAD A LEASE FOR TEN YEARS AND
PRESUMABLY WOULD SPEND AS MUCH ON IMPROVEMENTS AS WOULD FIT THE
PREMISES FOR HIS PURPOSE, BUT HE WAS NOT REQUIRED TO SPEND ANY AMOUNT
WHATEVER FOR THE BENEFIT OF THE LESSOR.  SO FAR AS THE LEASE WENT, HIS
EXPENDITURES MIGHT WELL BE LIMITED TO IMPROVEMENTS WHICH WOULD HAVE A
LIFE NOT EXCEEDING THE TERM OF THE LEASE.  IF HE SPENT MORE AND THE
IMPROVEMENTS HE MADE WERE OF SUCH CHARACTER AS WOULD CARRY OVER SOME
RESIDUAL VALUE BEYOND THE TERM OF THE LEASE, ANY SUCH EXCESS VALUE
WOULD BE A GIFT TO THE LESSOR.  AT ALL EVENTS IT WAS NOT REQUIRED BY
THE TERMS OF THE LEASE. 

THE COMMON DEFINITION OF RENT OR RENTAL IS AN AGREED FIXED PAYMENT
FOR THE USE OF PROPERTY.  IT NEED NOT NECESSARILY BE PAYABLE IN MONEY
BUT IT MUST BE AGREED UPON AND IT MUST BE FIXED IN AMOUNT OR QUANTITY. 
DUFFY V. CENTRAL RAILROAD CO., 268 U.S. 55, 63. 

IT IS THE FUNDAMENTAL RULE OF INCOME TAXATION, LAID DOWN IN EISNER V.
MACOMBER, 252 U.S. 189, THAT TO CONSTITUTE TAXABLE GAIN OR INCOME THERE
MUST BE A REALIZATION, EITHER BY SEVERANCE FROM THE SOURCE OR BY
CONVERSION OF BOTH SOURCE AND GAIN INTO A DIFFERENT FORM, AND THAT
UNREALIZED APPRECIATION IN VALUE IS NOT TAXABLE AS INCOME.  UNITED
STATES V. SAFETY CAR HEATING & L. CO., 297 U.S. 88, 99.  COMPARE ALSO
KOSHLAND V. HELVERING, 298 U.S. 441; NORTH AMERICAN OIL CONSOLIDATED V.
BURNET, 286 U.S. 417; MACLAUGHLIN V. ALLIANCE INSURANCE CO., 286 U.S.
244; BURNET V. LOGAN, 283 U.S. 404. 

HERE THE PETITIONER IS THE OWNER OF PROPERTY WHICH IT HAS LEASED TO
ANOTHER FOR TEN YEARS.  THE LESSEE OF THE PROPERTY HAS ADDED
IMPROVEMENTS WHICH THE COMMISSIONER HAS FOUND WILL HAVE A RESIDUAL
VALUE OF $17,423.14 AT THE END OF THE TERM OF THE LEASE.  THE VALUE OF
PETITIONER'S PROPERTY, THEREFORE, HAS BEEN INCREASED AND A PART OF THAT
INCREASED VALUE WILL PRESUMABLY STILL BE IN THE PROPERTY WHEN IT
REVERTS TO PETITIONER UPON THE TERMINATION OF THE LEASE.  HAS
PETITIONER REALIZED ANY IMMEDIATE GAIN BY VIRTUE OF ALL THIS? 
CERTAINLY THERE HAS BEEN NOTHING "SEVERED" FROM THE PROPERTY
(PETITIONER'S CAPITAL) OR "RECEIVED OR DRAWN" BY PETITIONER FOR ITS
"SEPARATE USE, BENEFIT AND DISPOSAL."  THERE HAS BEEN NO GAIN OR PROFIT
IN THE SENSE OF "SOMETHING OF EXCHANGEABLE VALUE PROCEEDING FROM THE
PROPERTY."  PETITIONER HAS NO CONTROL OVER THE PROPERTY, OR THE
IMPROVEMENTS, SO LONG AS THE LEASE RUNS.  EVEN WHEN THE LEASE ENDS,
PETITIONER WILL HAVE ONLY THE POSSESSION OF REAL ESTATE BEARING
IMPROVEMENTS WHICH FIT IT FOR USE AS A THEATRE. 

THE COURT BELOW SUGGESTS, HOWEVER, THAT PETITIONER HAS AT ALL TIMES A
RIGHT TO SELL THE PROPERTY SUBJECT TO THE LEASE, AND SO IMMEDIATELY
REALIZE THE CASH VALUE OF THE IMPROVEMENTS TO THE EXTENT THAT THEY WILL
HAVE VALUE BEYOND THE TERM OF THE LEASE.  THIS DOES NOT AID THE COURT'S
CONCLUSION.  ON THE CONTRARY, IT SUPPORTS PETITIONER'S ARGUMENT THAT
THERE WAS NO REALIZATION OF GAIN AT THE TIME THE IMPROVEMENTS WERE
ADDED, AND THAT THE REALIZATION OF GAIN, IF ANY,  - AND THE TAXATION
THEREOF AS INCOME - CAN ONLY TAKE PLACE UPON THE SALE OR OTHER
DISPOSITION OF THE PROPERTY.  HEWITT REALTY CO. V. COMMISSIONER, 76
F.2D 880. 

THE DECISION OF THE COURT BELOW IGNORES THE PRACTICAL DIFFICULTIES
AND REALITIES OF THE SITUATION. 

IT SEEMS FAIRLY OBVIOUS THAT THE REGULATIONS IN QUESTION WHICH TAX AS
INCOME TO THE LESSOR, EITHER IMMEDIATELY OR BY SPREADING IT OVER THE
TERM OF THE LEASE, THE "ESTIMATED DEPRECIATED VALUE" AT THE END OF THE
LEASE OF ANY IMPROVEMENTS MADE BY THE LESSEE, ARE BOUND TO BE UNCERTAIN
AND DIFFICULT OF APPLICATION IN PARTICULAR CASES.  SEE MORPHY V.
COMMISSIONER, 35 B.T.A. 289, MINORITY OPINION; HART V. COMMISSIONER, 37
B.T.A. 360; PAUL & MERTENS, LAW OF FEDERAL INCOME TAXATION, VOL. 1,
SEC. 10.12, 1937 SUPPLEMENT. 

IF THE "INCOME" WHICH THE GOVERNMENT HAS CHARGED TO PETITIONER HERE,
NOT ONLY FOR THE TAXABLE YEAR ACTUALLY INVOLVED IN THIS CASE BUT
LIKEWISE FOR EVERY YEAR OF THE LEASE IN QUESTION, IS IN FACT AND IN LAW
INCOME TO PETITIONER AS THE GOVERNMENT CONTENDS, IT BECOMES A PROBLEM
TO DETERMINE HOW IT CAN BE DISTRIBUTED SO AS TO AVOID THE TAX ON
UNDISTRIBUTED PROFITS. 

WHEN IMPROVEMENTS ARE MADE BY A LESSEE, AS IN THIS CASE, THE
ACCESSION OF VALUE TO THE PROPERTY IS NOT INCOME BUT A CAPITAL
ADDITION.  EDWARDS V. CUBA RAILROAD CO., 268 U.S. 628.  SEE TAFT V.
BOWERS, 278 U.S. 470. 

(A)  THE VIEW THAT THE INCOME IS REALIZED UPON COMPLETION OF THE
IMPROVEMENT.  - THE LEGAL SIGNIFICANCE OF ADDING IMPROVEMENTS TO THE
LESSOR'S PROPERTY IS PRECISELY EQUIVALENT TO THE PAYMENT OF ADVANCE
RENTALS, AND THEREFORE THE INCOME IS REALIZED WHEN THE IMPROVEMENTS ARE
COMPLETE.  THE LESSOR IS UNDOUBTEDLY THE OWNER AS SOON AS THE
IMPROVEMENTS ARE MADE, AND IF TITLE BE THE TEST HE HAS THEN DERIVED
INCOME.  THE CASH RENTALS ARE ALLOCABLE IN PART TO THE IMPROVEMENTS, SO
THAT THE LESSOR HAS THE IMMEDIATE USE OF THE IMPROVEMENT TO THAT
EXTENT, JUST AS HE HAS THE USE AND BENEFIT OF THE REST OF THE
PROPERTY.  THE ONLY REASON WHY HE IS NOT ENTIRELY FREE TO USE THE
PROPERTY IS THAT HE HAS AGREED IN ADVANCE WITH THE LESSEE TO PERMIT THE
LATTER THE EXCLUSIVE USE.  THIS CIRCUMSTANCE IS ANALOGOUS TO THE
ASSIGNED INCOME CASES AND SHOULD NOT PREVENT THE TAX.  MOREOVER, THE
CONCEPT OF INCOME DOES NOT NECESSARILY REQUIRE THAT THE RESPONDENT HAVE
THE UNRESTRICTED RIGHT TO ENJOY IT.  BURNET V. HARMEL, 287 U.S. 103;
POE V. SEABORN, 282 U.S. 101; MILLER V. GEARIN, 258 F. 225; 250 U.S.
667; CRYAN V. WARDELL, 263 F. 248. 

THE TREASURY REGULATIONS THEN IN EFFECT PROVIDED THAT THE DEPRECIATED
VALUE OF IMPROVEMENTS ERECTED BY A LESSEE CONSTITUTED TAXABLE INCOME TO
THE LESSOR UPON THE TERMINATION OF THE LEASE.  ART. 4, PAR. 50, REG.
33(REV.  ED.); ART. 48, REG. 45.  BUT THE CITED CASES OVERRULED THE
EXISTING REGULATIONS, WHEREUPON THE TREASURY MADE CHANGES TO CONFORM TO
THE DECISIONS.  T.D. 3062, 3 CUMULATIVE BULLETIN 109; MIM.  2714, 4
CUMULATIVE BULLETIN 90; ART. 48, REGULATIONS 45(1920 ED.).  THE
REGULATIONS UNDER THE LATER ACTS HAVE CONSISTENTLY REGARDED THE INCOME
AS REALIZED UPON THE COMPLETION OF THE IMPROVEMENTS.  THE REGULATIONS
UNDER THE 1921 AND SUBSEQUENT ACTS HAVE PERMITTED THE GAIN TO BE SPREAD
OVER THE LIFE OF THE LEASE.  ART. 48, REGULATIONS 62, 65 AND 69; ART.
63, REGULATIONS 74 AND 77; ART. 22(A)-13, REGULATIONS 86 AND 94. 

AGAINST THIS VIEW IT MAY BE URGED THAT THE LESSOR HAS NOT "DERIVED"
THE INCOME BECAUSE HE IS NOT FREE TO USE IT.  BUT THE LESSOR DERIVES
RENT FROM THE IMPROVEMENTS AND, TO THAT EXTENT AT LEAST, IT WOULD
APPEAR THAT HE DOES USE THE IMPROVED PROPERTY.  HIS FULL RIGHT OF USE
IS TIED UP AND RESTRICTED DURING THE TERM OF THE LEASE BY THE AGREEMENT
OF THE PARTIES MADE IN ADVANCE OF THE IMPROVEMENTS.  IN OTHER
SITUATIONS IT HAS BEEN HELD THAT SUCH AN ASSIGNMENT DOES NOT AVOID THE
TAX.  LUCAS V. EARL, 281 U.S. 111; LONSDALE V. COMMISSIONER, 32 F.2D
537; 280 U.S. 575.  CF. BURNET V. WELLS, 289 U.S. 670; POE V. SEABORN,
282 U.S. 101; CLEVELAND RY. CO. V. LUCAS, 36 F.2D 347; 281 U.S. 743;
OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716; UNITED STATES V.
HENDLER, 303 U.S. 564; AND SEE UNITED STATES V. BOSTON & M.R. CO., 279
U.S. 732. 

(B)  THE VIEW THAT THE INCOME IS REALIZED UPON THE TERMINATION OF THE
LEASE.  - IF THE RESTRICTIONS UPON ENJOYMENT PREVENT THE INCOME FROM
BEING TREATED AS DERIVED WHEN THE IMPROVEMENTS ARE MADE, IT SHOULD
FOLLOW THAT THE INCOME IS RECEIVED WHEN THE RESTRICTIONS ARE REMOVED. 
THE PRINCIPLE IS WELL RECOGNIZED THAT THE RELEASE OF A LIABILITY IS THE
EQUIVALENT OF RECEIPT, AND WHERE INCOME IS PHYSICALLY RECEIVED AT A
TIME WHEN THERE IS SOME RESTRICTION UPON ITS USE, THE TIME OF RECEIPT
IS DEEMED TO BE POSTPONED UNTIL THE RESTRICTION IS REMOVED.  IF THAT
THEORY IS APPLICABLE, THE INCOME IS DERIVED AT THE EXPIRATION OR
EARLIER TERMINATION OF THE LEASE.  HELVERING V. MOUNTAIN PRODUCERS
CORP., 303 U.S. 376; UNITED STATES V. KIRBY LUMBER CO., 284 U.S. 1;
HELVERING V. AMERICAN CHICLE CO., 291 U.S. 426; MARYLAND CASUALTY CO.
V. UNITED STATES, 251 U.S. 342; NORTH AMERICAN OIL V. BURNET, 286 U.S.
417, 424; CF. HELVERING V. TEX-PENN CO., 300 U.S. 481. 

(C)  THE VIEW THAT THE INCOME IS REALIZED UPON DISPOSITION OF THE
IMPROVED PROPERTY.  - THE THEORY THAT THE INCOME IS REALIZED UPON THE
DISPOSITION OF THE PROPERTY IS BASED UPON THE VIEW THAT THE INCREASED
VALUE WHICH RESULTED FROM THE IMPROVEMENTS IS MERELY APPRECIATION OF
SOME CHARACTER, LIKE AN INCREASE RESULTING FROM FLUCTUATING
CONDITIONS.  HOWEVER, THERE IS LITTLE SIMILARITY BETWEEN GENERAL
CONDITIONS CAUSING DAY-TO-DAY FLUCTUATIONS AND A PERMANENT IMPROVEMENT
TO THE PARTICULAR REALTY.  FURTHERMORE, THIS THEORY IS BASED UPON THE
MISCONCEPTION THAT THERE MUST BE AN ACTUAL PHYSICAL SEPARATION OF
INCOME FROM CAPITAL.  WE THINK THE CASES SHOW THAT THE CONCEPT OF
INCOME IS SATISFIED WHERE THE TAXPAYER'S INVESTMENT PRODUCES NEW
PROPERTY WHICH, IN SOME FORM, IS MADE AVAILABLE TO HIM.  THE SIMPLICITY
OF THE THEORY HAS APPEALED TO SOME COURTS, BUT IF THE INCOME IS LOST AS
A RESULT OF UNRELATED EVENTS OCCURRING BETWEEN THE TIME OF ITS RECEIPT
AND THE DISPOSITION OF THE PROPERTY, THIS THEORY WOULD PERMIT IT TO
ESCAPE TAXATION ALTOGETHER.  IN NO OTHER SITUATION IS A TAXPAYER
EXCUSED FROM ACCOUNTING FOR INCOME BECAUSE OF ITS SUBSEQUENT LOSS. 
HEWITT REALTY CO. V. COMMISSIONER, 76 F.2D 880; MARR V. UNITED STATES,
268 U.S. 536, 540; HELVERING V. MIDLAND INS. CO., 300 U.S. 216, 225;
KOSHLAND V. HELVERING, 298 U.S. 441. 

THE CASE IS SQUARELY WITHIN THE REGULATIONS, AND THE VALIDITY OF THE
TAX DEPENDS UPON THE ACCEPTANCE OF THE THEORY WHICH UNDERLIES THE
REGULATIONS. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

PETITIONER PAID, AND IN THIS SUIT SEEKS TO RECOVER, AN AMOUNT
INCLUDED IN A DEFICIENCY ASSESSMENT MADE BY THE COMMISSIONER OF
INTERNAL REVENUE AS ADDITIONAL INCOME TAX FOR THE YEAR ENDING JANUARY
31, 1932.  THE QUESTION IS WHETHER PETITIONER IS LIABLE UNDER REVENUE
ACT OF 1932, SEC. 22(A).  FN1 

THE MATERIAL SUBSTANCE OF THE FINDINGS FOLLOWS. 

FOR ITSELF AND A SUBSIDIARY CORPORATION, PETITIONER MADE CONSOLIDATED
RETURN.  THE COMMISSIONER ADDED TO THE INCOME OF THE SUBSIDIARY ON
ACCOUNT OF IMPROVEMENTS MADE TO ITS PROPERTY BY A LESSEE.  HE RULED THE
IMPROVEMENTS WERE INCOME TO LESSOR IN THAT YEAR TO THE EXTENT OF THEIR
VALUE AT TERMINATION OF THE LEASE. 

LESSOR PURCHASED THE REAL ESTATE IN 1927, AND SEPTEMBER 13, 1930,
LEASED IT FOR USE AS A MOVING PICTURE THEATER FOR A TERM OF TEN YEARS,
BEGINNING UPON COMPLETION OF IMPROVEMENTS TO BE MADE.  AT ITS OWN COST
AND EXPENSE, LESSOR AGREED TO MAKE ALTERATIONS IN ACCORDANCE WITH PLANS
AND SPECIFICATIONS PREPARED BY AN ARCHITECT SELECTED BY THE PARTIES. 
LESSEE AGREED TO INSTALL THE LATEST TYPE OF MOVING PICTURE AND TALKING
APPARATUS, THEATER SEATS AND ALL OTHER FIXTURES, FURNITURE AND
EQUIPMENT NECESSARY FOR THE SUCCESSFUL OPERATION OF A MODERN THEATER TO
BECOME THE PROPERTY OF LESSOR AT THE EXPIRATION OR SOONER TERMINATION
OF THE LEASE. 

LESSOR MADE A CONTRACT WITH THE BUILDER TO MAKE THE CONTEMPLATED
IMPROVEMENTS AND AGREED TO PAY, UP TO A SPECIFIED LIMIT, ACTUAL COST,
PLUS BUILDER'S PROFIT AND ARCHITECT'S FEE.  ADDITIONAL WORK ORDERED BY
LESSEE WAS TO BE PAID FOR BY IT.  LESSEE CONSENTED TO THE TERMS OF THE
CONTRACT AND AGREED TO PAY FOR WORK AND MATERIALS ORDERED BY IT.  ALL
IMPROVEMENTS WERE COMPLETED IN JANUARY 1931; LESSEE TOOK POSSESSION OF
THE PROPERTY FEBRUARY 1 OF THAT YEAR. 

THE TOTAL COST OF ALL IMPROVEMENTS WAS $114,468.77; LESSOR PAID
$73,794.47; LESSEE PAID THE BALANCE, $40,674.30.  "THE ESTIMATED
DEPRECIATED VALUE AT THE TERMINATION OF THE LEASE OF THE ALTERATIONS
AND IMPROVEMENTS PAID FOR BY THE LESSEE WAS COMPUTED BY THE
COMMISSIONER AND WAS AGREED TO BY THE PLAINTIFF (PETITIONER), AS
FOLLOWS:

          DEPRECIATED VALUE

                      AT END OF 10

                  COST          YEARS 

(1) VENTILATING SYSTEM................   $3,959.75     $2,771.83 

(2) GLAZING, ARCHITECT'S FEE AND

   OTHER ITEMS......................   10,366.37      7,256.46 

(3) PAINTING..........................      760.80         0 

(4) OTHER IMPROVEMENTS................      185.97         0    (5)
CHAIRS............................    9,167.24      3,055.75 

(6) BOOTH.............................    5,197.39     0 

(7) DRAPERIES.........................    7,075.42    2,358.47 

(8) ELECTRIC SIGNS AND MARQUEE........    3,961.36      1,980.63

   TOTAL............................  $40,674.30    $17,423.14" 

FROM THESE FIGURES IT APPEARS THAT THE CALCULATIONS WERE BASED ON
ANNUAL DEPRECIATION OF ITEMS (1) AND (2) AT 3 PER CENT., ON (5) AND
(7), AT 6 2/3 PER CENT., ON (8), AT 5 PER CENT., AND ON (3), (4), AND
(6), AT 10 PER CENT.    FOR THE YEAR IN QUESTION, THE COMMISSIONER
ADDED TO INCOME OF LESSOR $1,742.31, ONE-TENTH OF THE COST SO
DEPRECIATED.  THE RESULTING ADDITIONAL TAX WAS $211.61.  PETITIONER
PAID IT; THE COMMISSIONER DISALLOWED CLAIM FOR REFUND.  THE LOWER COURT
HELD PETITIONER NOT ENTITLED TO RECOVER; IT SUSTAINED THE TAX ON THE
GROUND THAT, IMMEDIATELY UPON COMPLETION OF THE IMPROVEMENTS MADE BY
LESSEE, THEY BECAME THE PROPERTY OF LESSOR, AND CONSTITUTED
COMPENSATION PAID BY LESSEE AS ADDITIONAL RENTAL FOR THE USE OF THE
LEASED PREMISES. 

PETITIONER INSISTS THAT WHERE IMPROVEMENTS ARE MADE BY LESSEE, THERE
IS NO REALIZATION OF GAIN AT THE TIME THE IMPROVEMENTS ARE COMPLETED;
THAT THE ACCESSION OF VALUE TO THE PROPERTY IS NOT INCOME BUT A CAPITAL
ADDITION.  THE UNITED STATES SAYS THAT, WHILE THE CASE PRESENTS THE
QUESTION WHETHER DEPRECIATED VALUE OF IMPROVEMENTS BY LESSEE
CONSTITUTES INCOME TO LESSOR IN THE TAXABLE YEAR, THE "BASIC QUESTION
IS WHETHER INCOME IS EVER REALIZED BY THE LESSOR IN SUCH CASES, AND IF
SO, WHEN."  ASSUMING THAT IMPROVEMENTS MADE BY LESSEE AND WHICH WILL
OUTLAST THE TERM CONSTITUTE INCOME TO LESSOR AT SOME TIME, ITS BRIEF
DISCUSSES THE QUESTIONS WHETHER THE INCOME IS REALIZED UPON (1)
COMPLETION OF THE IMPROVEMENTS, (2) TERMINATION OF THE LEASE, OR (3)
DISPOSITION OF THE IMPROVED PROPERTY.  IT CONCLUDES THAT THE "SOUNDEST
THEORY SEEMS TO BE THAT SUCH INCOME IS TAXABLE AT THE TIME THE
IMPROVEMENTS ARE ERECTED."  AND, WITHOUT SUPPORTING THE LOWER COURT'S
RULING THAT THE ESTIMATED DEPRECIATED VALUE AT THE END OF THE TEN-YEAR
TERM CONSTITUTED ADDITIONAL RENT OR COMPENSATION PAID FOR THE USE OF
THE PREMISES, IT ASKS THAT THE JUDGMENT BE UPHELD. 

WE ARE NOT CALLED ON TO DECIDE WHETHER UNDER ANY LEASE OR IN ANY
CIRCUMSTANCES, INCOME IS RECEIVED BY LESSOR BY REASON OF IMPROVEMENTS
MADE BY LESSEE, NOR TO CHOOSE, FOR GENERAL APPROVAL OR CONDEMNATION,
ANY OF THE THEORIES EXPOUNDED BY THE UNITED STATES.  CONCRETELY, THE
QUESTION PRESENTED IS WHETHER, UNDER THE LEASE HERE INVOLVED, ONE-TENTH
OF WHAT THE COMMISSIONER AND TAXPAYER CALL AND AGREE TO BE "ESTIMATED
DEPRECIATED VALUE," AS OF THE END OF THE TERM, WAS INCOME TO PETITIONER
IN THE FIRST YEAR OF THE TERM.  AND THAT QUESTION IS TO BE DECIDED UPON
THE LOWER COURT'S SPECIAL FINDINGS UNAFFECTED BY ANY STATEMENT OF FACT,
REASONING, OR CONCLUSION THAT MAY BE FOUND IN ITS OPINION.  FN2 

THERE IS NOTHING IN THE FINDINGS TO SUGGEST THAT COST OF ANY
IMPROVEMENT MADE BY LESSEE WAS RENT OR AN EXPENDITURE NOT PROPERLY TO
BE ATTRIBUTED TO ITS CAPITAL OR MAINTENANCE ACCOUNT AS DISTINGUISHED
FROM OPERATING EXPENSE.  WHILE THE LEASE REQUIRED IT TO MAKE
IMPROVEMENTS NECESSARY FOR SUCCESSFUL OPERATION, NO ITEM WAS SPECIFIED,
NOR THE TIME OR AMOUNT OF ANY EXPENDITURE.  THE REQUIREMENT WAS ONE
MAKING FOR SUCCESS OF THE BUSINESS TO BE DONE ON THE LEASED PREMISES. 
IT WELL MAY HAVE BEEN DEEMED BY LESSOR ESSENTIAL OR APPROPRIATE TO
SECURE PAYMENT OF THE RENT STIPULATED IN THE LEASE.  EVEN WHEN
REQUIRED, IMPROVEMENTS BY LESSEE WILL NOT BE DEEMED RENT UNLESS
INTENTION THAT THEY SHALL BE IS PLAINLY DISCLOSED.  RENT IS "A FIXED
SUM, OR PROPERTY AMOUNTING TO A FIXED SUM, TO BE PAID AT STATED TIMES
FOR THE USE OF PROPERTY  ...  ; ...  IT DOES NOT INCLUDE PAYMENTS,
UNCERTAIN BOTH AS TO AMOUNT AND TIME, MADE FOR THE COST OF IMPROVEMENTS
...  " FN3 THE FACTS FOUND ARE CLEARLY NOT SUFFICIENT TO SUSTAIN THE
LOWER COURT'S HOLDING TO THE EFFECT THAT THE MAKING OF IMPROVEMENTS BY
LESSEE WAS PAYMENT OF RENT. 

IT REMAINS TO BE CONSIDERED WHETHER THE AMOUNT IN QUESTION
REPRESENTED TAXABLE INCOME, OTHER THAN RENT, IN THE FIRST YEAR OF THE
TERM. 

THE FINDINGS FAIL TO DISCLOSE ANY BASIS OF VALUE ON WHICH TO LAY AN
INCOME TAX OR THE TIME OF REALIZATION OF TAXABLE GAIN, IF ANY THERE
WAS.  THE FIGURES MADE BY THE COMMISSIONER ARE NOT DEFINED.  THE
FINDINGS DO NOT SHOW WHETHER THEY ARE INTENDED TO REPRESENT VALUE OF
IMPROVEMENTS IF REMOVED OR THE AMOUNT ATTRIBUTABLE TO THEM AS A PART OF
THE BUILDING. 

THE FIGURES THEMSELVES REPEL THE SUGGESTION THAT THEY WERE INTENDED
TO REPRESENT AMOUNTS OBTAINABLE FOR THE ITEMS IF REMOVED.  WE ARE NOT
REQUIRED TO ASSUME THAT THE COMMISSIONER INTENDED HIS ESTIMATES TO
REPRESENT SALVAGE, AT THE END OF THE TERM, OF VENTILATING SYSTEM,
GLAZING, ARCHITECT'S FEES AND THE LIKE, DRAPERIES, CHAIRS, ELECTRIC
SIGNS, AND MARQUEE, THE USEFUL LIVES OF WHICH IN PLACE HAVE DECLINED
FROM 30 TO 66 2/3 PER CENT.  IT DOES NOT APPEAR THAT IF DETACHED FROM
THE BUILDING THEY WOULD THEN HAVE ANY VALUE, EVEN AS JUNK, OVER
NECESSARY COST OF REMOVAL.  IT IS CLEAR THAT, IF ANY VALUE AS OF THAT
TIME MAY BE ATTRIBUTED TO THEM, IT IS INCLUDED IN AND NOT SEPARABLE
FROM THAT OF THE LEASED PREMISES. 

EQUALLY CONJECTURAL WOULD BE ASSUMPTION THAT THE FIGURES REPRESENT
ENHANCEMENT OF VALUE OF THE LEASED PREMISES BY REASON OF THE
IMPROVEMENTS WHEN NEW OR AS DETERIORATED AT THE END OF THE TERM.  THE
LEASED PROPERTY IS CAPABLE OF INVENTORY AND ANALYSIS FOR THE PURPOSE OF
ASCERTAINING ORIGINAL AND ESTIMATED PRESENT COSTS OF ITS ELEMENTS AND
OTHER RELEVANT FACTS AS INDICATIONS OF WORTH TO BE TAKEN INTO ACCOUNT
IN DETERMINING ITS VALUE; I.E., THE MONEY EQUIVALENT OF THE PROPERTY AS
A WHOLE.  FN4  BUT PRESENT OR FUTURE VALUE, HOWEVER ASCERTAINED, IS
SINGLE IN SUBSTANCE; IT CANNOT BE ARRIVED AT BY MERE SUMMATION OF
ACTUAL OR ESTIMATED COST OF CONSTITUENT ELEMENTS, NEW OR DEPRECIATED. 
FN5  THE ADDITION TO VALUE OF THE LEASED PREMISES RESULTING FROM THE
LESSEE'S IMPROVEMENTS MAY NOT BE ARRIVED AT BY FORMULA OR
ARITHMETICALLY BY MERELY SETTING AGAINST EACH ITEM OR ELEMENT ITS COST
LESS DEPRECIATION ESTIMATED TO ACCRUE DURING THE TERM OF THE LEASE. 
FN6 THE AMOUNT INCLUDED IN THE TOTAL VALUE OF THE STRUCTURE REASONABLY
TO BE ATTRIBUTED TO THE IMPROVEMENTS AFTER USE FOR TEN YEARS IS NOT
ASCERTAINABLE BY THE SIMPLE CALCULATIONS EMPLOYED BY THE COMMISSIONER. 

GRANTING THAT THE IMPROVEMENTS INCREASED THE VALUE OF THE BUILDING,
THAT ENHANCEMENT IS NOT REALIZED INCOME OF LESSOR.  FN7  SO FAR AS
CONCERNS TAXABLE INCOME, THE VALUE OF THE IMPROVEMENTS IS NOT
DISTINGUISHABLE FROM EXCESS, IF ANY THERE MAY BE, OF VALUE OVER COST OF
IMPROVEMENTS MADE BY LESSOR.  EACH WAS AN ADDITION TO CAPITAL; NOT
INCOME WITHIN THE MEANING OF THE STATUTE.  FN8 TREASURY REGULATIONS CAN
ADD NOTHING TO INCOME AS DEFINED BY CONGRESS.  FN9 

BUT, ASSUMING THAT AT SOME TIME VALUE OF THE IMPROVEMENTS WOULD BE
INCOME OF LESSOR, IT CANNOT BE REASONABLY ASSIGNED TO THE YEAR IN WHICH
THEY WERE INSTALLED.  THE COMMISSIONER FOUND THAT AT THE END OF THE
TERM SOME WOULD BE WORTHLESS AND EXCLUDED THEM.  HE ALSO EXCLUDED
DEPRECIATION OF OTHER ITEMS.  THESE EXCLUSIONS IMPLY THAT ELEMENTS
WHICH WILL NOT OUTLAST LESSEE'S RIGHT TO USE ARE NOT AT ANY TIME INCOME
OF LESSOR.  THE INCLUSION OF THE REMAINING VALUE IS TO HOLD THAT
PETITIONER'S RIGHT TO HAVE THEM AS A PART OF THE BUILDING AT EXPIRATION
OF LEASE CONSTITUTES INCOME IN THE FIRST YEAR OF THE TERM IN AN AMOUNT
EQUAL TO THEIR ESTIMATED VALUE AT THE END OF THE TERM WITHOUT ANY
DEDUCTION TO OBTAIN PRESENT WORTH AS OF DATE OF INSTALLATION.  IT MAY
BE ASSUMED THAT, SUBJECT TO THE LEASE, LESSOR BECAME OWNER OF THE
IMPROVEMENTS AT THE TIME THEY WERE MADE.  BUT IT HAD NO RIGHT TO USE OR
DISPOSE OF THEM DURING THE TERM.  MERE ACQUISITION OF THAT SORT DID NOT
AMOUNT TO CONTEMPORANEOUS REALIZATION OF GAIN WITHIN THE MEANING OF THE
STATUTE.  REVERSED. 

FN1  "'GROSS INCOME' INCLUDES GAINS, PROFITS, AND INCOME DERIVED FROM
SALARIES, WAGES, OR COMPENSATION FOR PERSONAL SERVICE, OF WHATEVER KIND
AND IN WHATEVER FORM PAID, OR FROM PROFESSIONS, VOCATIONS, TRADES,
BUSINESSES, COMMERCE, OR SALES, OR DEALINGS IN PROPERTY, WHETHER REAL
OR PERSONAL, GROWING OUT OF THE OWNERSHIP OR USE OF OR INTEREST IN SUCH
PROPERTY; ALSO FROM INTEREST, RENT, DIVIDENDS, SECURITIES, OR THE
TRANSACTION OF ANY BUSINESS CARRIED ON FOR GAIN OR PROFIT, OR GAINS OR
PROFITS AND INCOME DERIVED FROM ANY SOURCE WHATEVER.  ...  "  47 STAT.
178.  THE REGULATION APPLIED BY THE COMMISSIONER (REG. 77, ART. 63) HAS
SINCE BEEN CHANGED.  SEE REG. 94 AND 86, ART. 22(A)-13. 

FN2  STONE V. UNITED STATES, 164 U.S. 380, 383.  CROCKER V. UNITED
STATES, 240 U.S. 74, 78.  BROTHERS V. UNITED STATES, 250 U.S. 88, 93. 
UNITED STATES V. WELLS, 283 U.S. 102, 120.  UNITED STATES V. ESNAULT
PELTERIE, 299 U.S. 201, 206.  AND SEE AMERICAN PROPELLER CO. V. UNITED
STATES, 300 U.S. 475, 479-480. 

FN3  DUFFY V. CENTRAL RAILROAD CO., 268 U.S. 55, 63.  DODGE V. HOGAN,
19 R.I. 4, 11; 31 A. 269, 1059.  GUILD V. SAMPSON, 232 MASS. 509, 513;
122 N.E. 712.  GARNER V. HANNAH, 6 DUER 262, 266.  BOARD OF COMM'RS V.
PURE OIL CO., 167 LA. 801, 811; 120 SO. 373.  2 BLACKSTONE, P. 41. 

FN4  WEST V. CHESAPEAKE & POTOMAC TEL. CO., 295 U.S. 662, 671.  OLSON
V. UNITED STATES, 292 U.S. 246, 255.  STANDARD OIL CO. V. SOUTHERN
PACIFIC CO., 268 U.S. 146, 155. 

FN5  DENVER STOCK YARD CO. V. UNITED STATES, 304 U.S. 470, 479. 

FN6  MINNESOTA RATE CASES, 230 U.S. 352, 434.  BLUEFIELD CO. V.
PUBLIC SERVICE COMM'N, 262 U.S. 679, 690.  STANDARD OIL CO. V. SOUTHERN
PACIFIC CO., 268 U.S. 146, 157, 159.  MCCARDLE V. INDIANAPOLIS WATER
CO., 272 U.S. 400, 416. 

FN7  HEWITT REALTY CO. V. COMMISSIONER (CCA 2), 76 F.2D 880, 884. 
EISNER V. MACOMBER, 252 U.S. 189, 207.  LUCAS V. ALEXANDER, 279 U.S.
573, 577.  CF. BOWERS V. KERBAUGH-EMPIRE CO., 271 U.S. 170, 175. 

FN8  UNITED STATES V. PHELLIS, 257 U.S. 156, 169, 175.  MERCHANTS'
LOAN & T. CO. V. SMIETANKA, 255 U.S. 509, 519-520.  TAFT V. BOWERS, 278
U.S. 470, 480, ET SEQ. LUCAS V. AMERICAN CODE CO., 280 U.S. 445, 449. 
ECKERT V. BURNET, 283 U.S. 140, 142.  BURNET V. LOGAN, 283 U.S. 404,
412-413.  UNITED STATES V. SAFETY CAR HEATING CO., 297 U.S. 88, 99. 
KOSHLAND V. HELVERING, 298 U.S. 441, 444-445.  CF. COMMISSIONER V. VAN
VORST (CCA 9), 59 F.2D 677, 680. 

FN9  KOSHLAND V. HELVERING, 298 U.S. 441, 447. 

MR. JUSTICE STONE. 

I ACQUIESCE IN THAT PART OF THE COURT'S OPINION WHICH CONSTRUES THE
FINDINGS BELOW AS FAILING TO ESTABLISH THAT THE LESSEE'S IMPROVEMENTS
RESULTED IN AN INCREASE IN MARKET VALUE OF THE LESSOR'S LAND IN THE
TAXABLE YEAR.  AS IT IS UNNECESSARY TO DECIDE WHETHER SUCH INCREASE, IF
ESTABLISHED, WOULD CONSTITUTE TAXABLE INCOME OF THE LESSOR, I DO NOT
JOIN IN SO MUCH OF THE OPINION AS, UPON AN ASSUMPTION CONTRARY TO THE
FINDINGS, UNDERTAKES TO DISCUSS THAT QUESTION. 
..END :























WHITE V. UNITED STATES, 305 U.S. 281 


NO. 96.  ARGUED NOVEMBER 16, 17, 1938.  - DECIDED DECEMBER 5, 1938.  -
86 CT.CLS.  125 - 21 F.SUPP.  361, AFFIRMED. 


1.  UNDER SECS. 23 AND 101 OF THE REVENUE ACT OF 1928, UPON A COMPLETE
LIQUIDATION OF A CORPORATION, STOCKHOLDERS' LOSSES FROM THEIR
INVESTMENTS IN ITS STOCK HELD FOR MORE THAN TWO YEARS ARE NOT ORDINARY
LOSSES DEDUCTIBLE IN FULL FROM GROSS INCOME, BUT ARE CAPITAL LOSSES 12
1/2% OF WHICH IS DEDUCTIBLE, UNDER SEC. 101, FROM THE TAX AS COMPUTED
WITHOUT REGARD TO SUCH LOSSES.  P. 283. 

2.  UNDER THIS ACT, STOCKHOLDERS' GAINS AND LOSSES UPON LIQUIDATION
OF THE CORPORATION ARE TAXED ON THE SAME BASIS AS GAINS OR LOSSES UPON
SALES AND EXCHANGES OF PROPERTY, WITH THE RATE OF TAX PRESCRIBED BY
SEC. 101.  P. 284. 

THIS CONCLUSION FOLLOWS FROM A COMPARISON AND ANALYSIS OF SECS. 12,
21-23, 101, 112, 113 AND 115, AND IS SUPPORTED BY JUDICIAL CONSTRUCTION
OF SEC. 115(C), HELLMICH V. HELLMAN, 276 U.S. 233, AS IT APPEARED IN
THE REVENUE ACT OF 1918, SEC. 201(C), AND BY THE LEGISLATIVE HISTORY OF
SECS. 101 AND 115, AND BY REPORTS OF CONGRESSIONAL COMMITTEES. 

3.  ARTICLE 625 OF TREASURY REGULATIONS 74, INTERPRETING SECS. 101
AND 115(C) OF THE 1928 ACT, IS A CLEAR RECOGNITION THAT SECS. 115 AND
101, WHEN READ WITH THE OTHER SECTIONS OF THE ACT, ARE INTERDEPENDENT
AND REQUIRE STOCKHOLDERS' GAINS UPON LIQUIDATION TO BE TAXED AS ARE THE
CORRESPONDING GAINS ON SALES OF PROPERTY.  P. 290. 

4.  THE REPEATED REENACTMENT OF SECS. 101 AND 115(C), AS THEY APPEAR
IN THE REVENUE ACTS OF 1924, 1928, AND 1932, IS UPON ACCEPTED
PRINCIPLES A CONGRESSIONAL ADOPTION OF TREASURY REGULATIONS AS
CORRECTLY INTERPRETING THOSE SECTIONS, AND IS CONGRESSIONAL RECOGNITION
THAT SECS. 101 AND 115(C) ARE TO BE READ TOGETHER IN ORDER TO ASCERTAIN
THE METHOD BY WHICH GAINS AND LOSSES UPON LIQUIDATION ARE TO BE TAXED. 
THE METHOD, IN THE CASE OF STOCK HELD FOR MORE THAN TWO YEARS, IS THAT
APPLIED BY SEC. 101 TO CAPITAL GAINS AND LOSSES FROM THE SALE OR
EXCHANGE OF PROPERTY.  P. 291. 

5.  THE ARGUMENT THAT DOUBTS MUST BE RESOLVED IN FAVOR OF THE
TAXPAYER, IS REJECTED.  P. 292. 

IT IS A FUNCTION OF COURTS TO RESOLVE DOUBTS; AND NO REASON IS
PERCEIVED WHY THAT FUNCTION SHOULD BE ABDICATED IN A TAX CASE MORE THAN
IN ANY OTHER WHERE THE RIGHTS OF SUITORS TURN ON THE CONSTRUCTION OF A
STATUTE, AND IT IS THE DUTY OF A COURT TO DECIDE WHAT THAT CONSTRUCTION
FAIRLY SHOULD BE. 

6.  EVERY DEDUCTION FROM GROSS INCOME IS ALLOWED AS A MATTER OF
LEGISLATIVE GRACE; AND ONLY AS THERE IS CLEAR PROVISION THEREFOR CAN
ANY PARTICULAR DEDUCTION BE ALLOWED; AND A TAXPAYER SEEKING A DEDUCTION
MUST BE ABLE TO POINT TO AN APPLICABLE STATUTE AND SHOW THAT HE COMES
WITHIN ITS TERMS.  P. 292. 

WHITE ET AL. V. UNITED STATES.* 

*TOGETHER WITH NO. 97, WHITE, EXECUTOR, V. UNITED STATES, ALSO ON
WRIT OF CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 581, TO REVIEW JUDGMENTS REJECTING CLAIMS FOR
THE RECOVERY OF MONEY PAID UNDER ADDITIONAL INCOME TAX ASSESSMENTS. 
CF. THE NEXT CASE. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION DECISIVE OF THIS CASE IS WHETHER, UNDER SECS. 23 AND 101
OF THE REVENUE ACT OF 1928, 45 STAT. 791, UPON A LIQUIDATION OF A
CORPORATION, STOCKHOLDERS' LOSSES FROM THEIR INVESTMENT IN ITS STOCK
HELD FOR MORE THAN TWO YEARS ARE ORDINARY LOSSES DEDUCTIBLE IN FULL
FROM GROSS INCOME, OR CAPITAL LOSSES, 12 1/2% OF WHICH IS DEDUCTIBLE
UNDER SEC. 101 FROM THE TAX AS COMPUTED WITHOUT REGARD TO SUCH LOSSES. 

THE DECEDENT IN EACH OF THESE CASES MADE AN INVESTMENT REPRESENTED BY
SHARES OF STOCK IN A CORPORATION.  UPON COMPLETE LIQUIDATION OF THE
CORPORATION, MORE THAN TWO YEARS LATER, THE TOTAL LIQUIDATING DIVIDENDS
ON THE STOCK AMOUNTED TO LESS THAN THE COST OF THE INVESTMENT.  IN
THEIR INCOME TAX RETURNS FOR 1929 PETITIONERS DEDUCTED FROM GROSS
INCOME THE LOSSES OF THEIR RESPECTIVE DECEDENTS.  THE COMMISSIONER
RULED THAT THE LOSSES WERE CAPITAL NET LOSSES OF WHICH ONLY 12 1/2% WAS
DEDUCTIBLE, AS PROVIDED BY SEC. 101, AND HE ACCORDINGLY FOUND
DEFICIENCIES, WHICH PETITIONERS PAID. 

IN THE PRESENT SUITS, BROUGHT BY PETITIONERS IN THE COURT OF CLAIMS
TO RECOVER THE PAYMENTS OF THE DEFICIENCIES AS OVERPAYMENTS OF 1929
TAX, RECOVERY WAS DENIED.  86 CT. CLS. 125; 21 F.SUPP.  361.  WE
GRANTED CERTIORARI, OCTOBER 10, 1938, TO RESOLVE A CONFLICT BETWEEN THE
DECISION BELOW AND THAT OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT
IN CHESTER N. WEAVER CO. V. COMMISSIONER, 97 F.2D.  31, CERTIORARI
GRANTED, OCTOBER 10, 1938, WHICH AROSE UNDER RELATED SECTIONS OF THE
1932 REVENUE ACT.  (SEE NEXT CASE.) 

THERE SHALL BE ALLOWED AS DEDUCTIONS  ...  LOSSES SUSTAINED DURING THE
TAXABLE YEAR  ...  (2) IF INCURRED IN ANY TRANSACTION ENTERED INTO FOR
PROFIT, THOUGH NOT CONNECTED WITH THE TRADE OR BUSINESS; ...  " AND SUB
DEDUCTION FOR LOSSES SUSTAINED  ...  SHALL BE THE SAME AS IS PROVIDED
IN SECTION 113 FOR DETERMINING THE GAIN OR LOSS FROM THE SALE OR OTHER
DISPOSITION OF PROPERTY." 

THESE PROVISIONS OF SEC. 23 ARE QUALIFIED AND RESTRICTED BY SEC. 101,
WHICH PRESCRIBES RATES OF TAX APPLICABLE TO CAPITAL NET GAINS AND THE
EXTENT TO WHICH CAPITAL NET LOSSES ARE DEDUCTIBLE IN ARRIVING AT NET
TAXABLE INCOME.  SECTION 101(C)(1) AND (2) OF THE REVENUE ACT OF 1928
DEFINES "CAPITAL GAIN" AS A "GAIN FROM THE SALE OR EXCHANGE OF CAPITAL
ASSETS" AND "CAPITAL LOSS" AS A "DEDUCTIBLE LOSS RESULTING FROM THE
SALE OR EXCHANGE OF CAPITAL ASSETS."  SECTION 101(C)(3) AND (4)
DECLARES:  "'CAPITAL DEDUCTIONS' MEANS SUCH DEDUCTIONS AS ARE ALLOWED
BY SECTION 23 FOR THE PURPOSE OF COMPUTING NET INCOME, AND ARE PROPERLY
ALLOCABLE TO OR CHARGEABLE AGAINST CAPITAL ASSETS SOLD OR EXCHANGED
DURING THE TAXABLE YEAR  ...  ;" AND "'ORDINARY DEDUCTIONS' MEANS THE
DEDUCTIONS ALLOWED BY SECTION 23 OTHER THAN CAPITAL LOSSES AND CAPITAL
DEDUCTIONS."  BY SEC. 101(C)(5) AND (6) A "CAPITAL NET GAIN" OR "LOSS"
RESULTS FROM THE SALE OF "CAPITAL ASSETS," WHICH ARE DEFINED BY SEC.
101(C)(8) AS "PROPERTY HELD BY THE TAXPAYER FOR MORE THAN TWO YEARS,"
NOT INCLUDING "STOCK IN TRADE  ...  OR OTHER PROPERTY" HELD BY THE
TAXPAYER "PRIMARILY FOR SALE IN THE COURSE OF HIS TRADE OR BUSINESS." 

A DIFFERENT BASIS FROM OTHER TYPES OF GAINS AND LOSSES FOR THE PURPOSE
OF COMPUTING THE TAX.  BY SEC. 101(A) A CAPITAL NET GAIN AS DEFINED BY
SEC. 101(C)(5) MAY, AT THE OPTION OF THE TAXPAYER, BE ASSESSED AT THE
RATE OF 12 1/2% IN LIEU OF ALL OTHER TAXES, AND BY SEC. 101(B) A
CAPITAL NET LOSS, DEFINED BY SEC. 101(6) AS "THE EXCESS OF THE SUM OF
THE CAPITAL LOSSES PLUS THE CAPITAL DEDUCTIONS OVER THE TOTAL AMOUNT OF
CAPITAL GAIN," MAY BE DEDUCTED, ONLY TO THE EXTENT OF 12 1/2%, FROM THE
TAX AS COMPUTED WITHOUT REGARD TO THE CAPITAL NET LOSS.  THESE
DISCUSSED, THUS PROVIDE A COMPLETE SCHEME FOR ASCERTAINING CAPITAL
GAINS AND LOSSES FROM THE SALE OR EXCHANGE OF PROPERTY AND FOR BRINGING
THEM INTO THE COMPUTATION OF THE TAX ON NET INCOME, A SCHEME DISTINCT
FROM THAT APPLICABLE TO OTHER TYPES OF GAINS AND LOSSES RESULTING IN
ORDINARY NET INCOME, INCLUDING THOSE FROM SALES AND EXCHANGES OF
PROPERTY NOT CAPITAL ASSETS. 

THE LOSSES HERE SUSTAINED ARE CONCEDEDLY LOSSES ON INVESTMENTS OF
CAPITAL, ENTITLED TO RECOGNITION IN THE COMPUTATION OF TAXABLE NET
INCOME, BUT PETITIONERS' CONTENTION IS THAT AS THE LOSSES DID NOT
RESULT FROM A SALE OR EXCHANGE OF THE STOCK THEY ARE NOT CAPITAL LOSSES
WITHIN THE MEANING OF SEC. 101, WHICH LIMITS THE DEDUCTION OF SUCH
LOSSES, AND THAT IN CONSEQUENCE THEY FALL INTO THE CATEGORY OF ORDINARY
LOSSES, DEDUCTIBLE IN FULL UNDER SEC. 23.  THE ANSWER TO THIS
CONTENTION TURNS UPON THE MEANING AND EFFECT OF SEC. 115(C), WHICH
RELATES TO DISTRIBUTIONS BY CORPORATIONS AND APPEARS IN SUPPLEMENT B OF
THE 1928 ACT.  THE SECTION PROVIDES IN PART: 

"AMOUNTS DISTRIBUTED IN COMPLETE LIQUIDATION OF A CORPORATION SHALL
BE TREATED AS IN FULL PAYMENT IN EXCHANGE FOR THE STOCK, AND AMOUNTS
DISTRIBUTED IN PARTIAL LIQUIDATION OF A CORPORATION SHALL BE TREATED AS
IN PART OR FULL PAYMENT IN EXCHANGE FOR THE STOCK.  THE GAIN OR LOSS TO
THE DISTRIBUTEE RESULTING FROM SUCH EXCHANGE SHALL BE DETERMINED UNDER
COMPUTATION OF GAIN OR LOSS FROM THE SALE OR OTHER DISPOSITION OF
PROPERTY AND REFERS, AS DOES SEC. 23(G), TO SEC. 113 AS AFFORDING THE
BASIS FOR DETERMINING GAIN OR LOSS UPON SALES OR EXCHANGES OF
PROPERTY.  BY SEC. 112(A) IT IS PROVIDED THAT "UPON THE SALE OR
EXCHANGE OF PROPERTY THE ENTIRE AMOUNT OF THE GAIN OR LOSS, DETERMINED
UNDER SECTION 111, SHALL BE RECOGNIZED, EXCEPT AS HEREINAFTER PROVIDED
IN THIS SECTION."  FN1 

PETITIONERS CONCEDE THAT THE COMMAND OF SEC. 115(C) THAT AMOUNTS
DISTRIBUTED IN COMPLETE LIQUIDATION OF A CORPORATION "SHALL BE TREATED
AS IN FULL PAYMENT IN EXCHANGE FOR THE STOCK" AND THAT THE "GAIN OR
LOSS  ...  SHALL BE DETERMINED UNDER SECTION 111," REQUIRES THE GAIN OR
LOSS UPON LIQUIDATION TO BE DETERMINED AS ARE GAINS OR LOSSES UPON SALE
OF THE STOCK UNDER SECS. 111, 113.  THE SAME METHOD IS ADOPTED BY 101
FOR DETERMINING GAINS OR LOSSES FROM SALES OF CAPITAL ASSETS.  FN2  BUT
THEY INSIST THAT THE QUALIFICATION  THAT GAIN OR LOSS "SHALL BE
RECOGNIZED ONLY TO THE EXTENT PROVIDED IN SECTION 112" AND THE FACT
THAT THE PROVISIONS OF SEC. 101 APPLY ONLY TO CASES OF SALES OR
EXCHANGES EXCLUDE THE STOCKHOLDERS' GAIN OR LOSS UPON LIQUIDATION,
WHICH IS NOT A SALE OR EXCHANGE, FROM THE OPERATION OF THE PROVISIONS
OF SEC. 101 GOVERNING THE COMPUTATION OF THE TAX. 

THE GENERAL PROVISIONS OF SUB-TITLE B OF THE 1928 REVENUE ACT, WHICH IS
CONCERNED WITH RATES OF TAX AND COMPUTATION OF NET INCOME.  SECTION 101
APPEARS IN SUPPLEMENT A, RELATING TO RATES OF TAX, AND SEC. 115 IN
SUPPLEMENT B, CONCERNING COMPUTATION OF NET INCOME.  BOTH SUPPLEMENTS
SERVE TO MODIFY OR EXPLAIN THE GENERAL PROVISIONS.  "  ...  THE
SUPPLEMENTAL PROVISIONS ARE THOSE WHICH APPLY ONLY TO EXTRAORDINARY
CLASSES OF TAXPAYERS OR WHICH APPLY ONLY TO THE EXTRAORDINARY
TRANSACTIONS OF ORDINARY CLASSES OF TAXPAYERS."  REPORT, COMMITTEE ON
WAYS AND MEANS, NO. 2, 70TH CONG., 1ST SESS., P. 12.  FROM THE
ARRANGEMENT AND GENERAL PLAN OF THE ACT IT IS EVIDENT THAT THE EFFECT
OF SECS. 101 AND 115 UPON EACH OTHER IS NOT TO BE ASCERTAINED ALONE BY
THE COMPARISON OF THE TWO SECTIONS OR BY NOTING THE ABSENCE OF ANY
REFERENCE TO EITHER BY THE OTHER, BUT BY NOTING AND COMPARING THE
EFFECT OF EACH UPON THE GENERAL PROVISIONS, TO WHICH REFERENCE MUST BE
MADE IN THE FIRST INSTANCE FOR ALL COMPUTATIONS OF INCOME TAX. 

TO WHICH SECS. 101 AND 115 ARE SUPPLEMENTARY, GOVERN COMPUTATION OF NET
INCOME AND OF THE TAX.  SUBSECTION (C) OF SEC. 12, WHICH FIXES THE
RATES OF SURTAX, REFERS SPECIFICALLY TO SEC. 101 FOR THE RATE AND
COMPUTATION OF TAX ON CAPITAL NET GAINS AND LOSSES.  FN3  SECTION 21
DECLARES THAT NET INCOME MEANS GROSS INCOME COMPUTED UNDER SEC. 22,
LESS THE DEDUCTIONS ALLOWED BY SEC. 23.  AS ALREADY NOTED, SEC. 23(E),
(G), PROVIDING FOR DEDUCTIONS OF LOSSES ON SALES OR EXCHANGES OF
PROPERTY, IS RESTRICTED IN ITS OPERATION BY THE PROVISIONS OF SEC.
101.  OTHERWISE, SEC. 101 WOULD HAVE NO APPLICATION TO DEDUCTIBLE
LOSSES.  THESE GENERAL PROVISIONS THUS INCORPORATE BY REFERENCE THOSE
OF SEC. 101 AND GIVE TO THEM CONTROLLING EFFECT IN THE COMPUTATION OF
THE TAX IN CASES OF CAPITAL GAINS OR LOSSES UPON THE SALE OR EXCHANGE
OF CAPITAL ASSETS.  IN ADDITION, SEC. 22(D) PROVIDES THAT
"DISTRIBUTIONS BY CORPORATIONS SHALL BE TAXABLE TO THE SHAREHOLDERS AS
PROVIDED IN SECTION 115," WHICH IN TURN, AS ALREADY NOTED, PROVIDES IN
PARAGRAPH (C) THAT LIQUIDATING DIVIDENDS "SHALL BE TREATED AS IN FULL
PAYMENT IN EXCHANGE FOR THE STOCK," AND THAT RESULTING GAINS OR LOSSES
DETERMINED, AS IN THE CASE OF SALES OR EXCHANGES OF PROPERTY, UNDER
SEC. 111, ARE TO BE "RECOGNIZED ONLY TO THE EXTENT PROVIDED IN SECTION
112," WHICH ALSO DEALS WITH SALES AND EXCHANGES. 

ALONE GIVE NO CLUE TO THE PART WHICH A STOCKHOLDER'S LOSS ON
LIQUIDATION IS TO PLAY, IN COMPUTATION OF THE TAX, MORE THAN THEY GIVE
IN THE CASE OF GAINS AND LOSSES UPON SALES OR EXCHANGES OF PROPERTY. 
IN EACH CASE THEY TELL HOW THE GAIN OR LOSS IS TO BE "DETERMINED" AND
DECLARE THAT IT SHALL BE "RECOGNIZED."  BUT AS SEC. 115 SAYS THAT THE
GAIN OR LOSS UPON LIQUIDATION IS TO BE "RECOGNIZED" ONLY TO THE EXTENT
TO WHICH GAINS OR LOSSES UPON SALES OR EXCHANGES OF PROPERTY ARE
RECOGNIZED BY SEC. 112, IT FOLLOWS THAT IN ONE CASE, AS IN THE OTHER,
WE MUST TURN TO THE GENERAL PROVISIONS OF THE ACT TO LEARN WHAT
RECOGNITION IS TO BE GIVEN TO THE GAINS OR LOSSES UNDER SECS. 12, 22
AND 23, AS SUPPLEMENTED BY SEC. 101.  ADMITTEDLY THE RECOGNITION
ACCORDED BY SEC. 112 TO GAINS AND LOSSES ON SALES OF CAPITAL ASSETS IS
CONTROLLED BY SEC. 101, AND SEC. 115(C), WITH ITS REFERENCE TO SEC.
112, IS EXPLICIT THAT GAINS AND LOSSES UPON LIQUIDATIONS ARE TO RECEIVE
THE RECOGNITION ACCORDED TO GAINS AND LOSSES UPON SALES OF PROPERTY. 
CONSEQUENTLY THE RECOGNITION REQUIRED BY SEC. 115(C) OF GAINS AND
LOSSES ON LIQUIDATIONS MUST, WE THINK, BE TAKEN TO BE THE SAME AS THAT
ACCORDED TO GAINS AND LOSSES UPON SALES OF PROPERTY IN THE COMPUTATION
OF THE TAX UNDER THE GENERAL PROVISIONS TO WHICH SEC. 115 AND SEC. 112
ARE SUPPLEMENTARY AND TO BE SUBJECT TO THE SAME RESTRICTIONS AS ARE
IMPOSED UPON RECOGNITION OF GAINS AND LOSSES FROM SALES BY THE
PROVISIONS OF THE SUPPLEMENTARY SECTION 101.  STOCKHOLDERS' GAINS AND
LOSSES UPON LIQUIDATION OF THE CORPORATION ARE THUS TAXED ON THE SAME
BASIS AS GAINS OR LOSSES UPON SALES AND EXCHANGES OF PROPERTY, WITH THE
RATE OF TAX AND DEDUCTIONS PRESCRIBED BY SEC. 101. 

IF THIS CONCLUSION WERE DOUBTFUL, DOUBTS WOULD BE PUT AT REST BY THE
JUDICIAL CONSTRUCTION OF SEC. 115(C) AS IT APPEARED IN THE 1918 ACT AND
BY THE LEGISLATIVE HISTORY OF SECS. 101 AND 115.  THE SUBSTANCE OF THE
FIRST SENTENCE OF SEC. 115(C) OF THE 1928 ACT APPEARED, BUT WITHOUT THE
REFERENCE TO SECS. 111 AND 112, IN SEC. 201(C) OF THE 1918 ACT, WHICH
PROVIDED THAT "AMOUNTS DISTRIBUTED IN THE LIQUIDATION OF A CORPORATION
SHALL BE TREATED AS PAYMENTS IN EXCHANGE FOR STOCK OR SHARES,  ...  "
FN4  IN HELLMICH V. HELLMAN, 276 U.S. 233, IT WAS HELD THAT THIS CLAUSE
REQUIRED A STOCKHOLDER'S GAINS UPON LIQUIDATION TO BE TREATED AS GAINS
FROM THE SALE OF PROPERTY AND THEREFORE SUBJECT TO THE NORMAL TAX,
ALTHOUGH THEY WERE DISTRIBUTIONS FROM CORPORATE EARNINGS, AND, UNDER
SECS. 201(A), (B) AND 216(A) DIVIDENDS PAID FROM SUCH EARNINGS WERE
FREE FROM NORMAL TAX.  THE PROVISIONS OF SEC. 115(C) PRESCRIBING THE
TREATMENT OF LIQUIDATING DIVIDENDS WERE THUS, FROM THE BEGINNING, TAKEN
TO REFER TO THE COMPUTATION OF THE TAX AS WELL AS TO THE DETERMINATION
OF THE GAIN OR LOSS. 

THE ADDITION TO THE SECTION IN THE 1924 AND LATER ACTS OF THE
DIRECTION THAT GAIN OR LOSS SHOULD BE DETERMINED UNDER THE SECTION
CORRESPONDING TO SEC. 111 OF THE 1928 ACT AND RECOGNIZED ONLY TO THE
EXTENT PROVIDED IN THE SECTION CORRESPONDING TO SEC. 112 OF THAT ACT
REQUIRES NO DIFFERENT RESULT.  FOR REASONS ALREADY GIVEN IT SUPPORTS
THE CONCLUSION THAT SEC. 115(C), LIKE ITS PRECURSOR, SEC. 201(C) OF THE
1918 ACT, AS CONSTRUED IN HELLMICH V. HELLMAN, SUPRA, PLACED
SHAREHOLDERS' GAINS AND LOSSES FROM LIQUIDATIONS UPON THE SAME BASIS,
FOR COMPUTATION OF THE TAX, AS GAINS AND LOSSES UPON THE SALE OR
EXCHANGE OF PROPERTY.  THE REPORTS OF THE CONGRESSIONAL COMMITTEES
DISCUSSING SEC. 201(C) OF THE 1924 ACT MAKE IT PLAIN THAT THAT SECTION,
THE RELEVANT PORTION OF WHICH IS IDENTICAL WITH SEC. 115(C) OF THE 1928
ACT, WAS INTENDED TO REQUIRE GAINS UPON CORPORATE LIQUIDATIONS TO BE
BROUGHT INTO THE COMPUTATION OF THE TAX IN THE SAME MANNER AS
CORRESPONDING GAINS FROM SALES.  FN5    ARTICLE 625 OF TREASURY
REGULATIONS 74, INTERPRETING SECS. 101 AND 115(C) OF THE 1928 ACT,
STATES IN PART:  "ANY GAIN TO THE SHAREHOLDER (FROM A DISTRIBUTION IN
LIQUIDATION OF A CORPORATION) MAY, AT HIS OPTION, BE TAXED AS A CAPITAL
NET GAIN IN THE MANNER AND SUBJECT TO THE CONDITIONS PRESCRIBED IN
115 AND 101, WHEN READ WITH THE OTHER SECTIONS OF THE ACT, ARE
INTERDEPENDENT AND REQUIRE STOCKHOLDERS' GAINS UPON LIQUIDATION TO BE
TAXED AS ARE THE CORRESPONDING GAINS ON SALES OF PROPERTY.  THE
REGULATION, IN IDENTICAL FORM, FIRST APPEARED IN ARTICLE 1545 OF
REGULATIONS 65 AND 69, APPLICABLE TO SECS. 201(C) AND 208 OF THE
REVENUE ACTS OF 1924 AND 1926, CORRESPONDING TO SECS. 115(C) AND 101 OF
THE 1928 ACT, AND WAS CONTINUED IN ARTICLE 625 OF REGULATIONS 77 WITH
RELATION TO THE CORRESPONDING SECTIONS, 115(C) AND 101, OF THE 1932
ACT. 

THE REPEATED REENACTMENT OF SECS. 101 AND 115(C), AS THEY APPEAR IN
THE REVENUE ACTS OF 1924, 1928, AND 1932, IS UPON ACCEPTED PRINCIPLES A
CONGRESSIONAL ADOPTION OF THE REGULATION AS CORRECTLY INTERPRETING
THOSE SECTIONS AND IS CONGRESSIONAL RECOGNITION THAT SECS. 101 AND
115(C) ARE TO BE READ TOGETHER IN ORDER TO ASCERTAIN THE METHOD BY
WHICH GAINS AND LOSSES UPON LIQUIDATION ARE TO BE TAXED.  THE METHOD,
IN THE CASE OF STOCK HELD FOR MORE THAN TWO YEARS, IS THAT APPLIED BY
SEC. 101 TO CAPITAL GAINS AND LOSSES FROM THE SALE OR EXCHANGE OF
PROPERTY. 

THE FACT THAT NEITHER THE DECISION IN HELLMICH V. HELLMAN, SUPRA, NOR
THE REGULATION DEALS SPECIFICALLY WITH LOSSES DOES NOT ADMIT OF THE
CONCLUSION THAT THE STOCKHOLDERS' LOSSES ON LIQUIDATION ARE TO BE
BROUGHT INTO COMPUTATION OF THE TAX ON A BASIS DIFFERENT FROM GAINS AND
LOSSES UPON SALES.  SECTION 115(C) MAKES NO DISTINCTION BETWEEN THE
RECOGNITION OF GAINS AND THE RECOGNITION OF LOSSES, AND IF ONE IS
CONTROLLED BY THE PROVISIONS OF SEC. 101 THE OTHER MUST BE. NO ADEQUATE
BASIS HAS BEEN SUGGESTED FOR SUCH A DISTINCTION. 

WE ATTACH NO SIGNIFICANCE TO THE CIRCUMSTANCE THAT THE PROVISIONS OF
SEC. 101 OF THE 1928 ACT FIRST APPEARED IN THE 1921 ACT, WHILE THE
CONTROLLING PROVISIONS OF SEC. 115(C) WERE ENACTED IN THE 1918 ACT AND
IN THEIR FINAL FORM IN THE 1924 ACT.  WE ACCEPT PETITIONER'S CONTENTION
THAT ALL THE PROVISIONS OF SEC. 101 ARE BY ITS TERMS RESTRICTED TO
CASES OF SALES OR EXCHANGES.  BUT IF, AS WE HAVE SAID, SEC. 115(C)
REQUIRES THE TAX IN CASE OF LIQUIDATIONS TO BE COMPUTED UPON THE SAME
BASIS AS IN CASE OF SALES OF THE STOCK, ALTERATION IN THE METHOD OF
ASCERTAINING THE TAX COULD BE MADE MORE READILY BY ADDING SEC. 101 OR
AMENDING IT THAN BY AMENDING SEC. 115(C), SO LONG AS IT IS THE PURPOSE
TO TREAT GAINS AND LOSSES ON LIQUIDATION NO DIFFERENTLY FROM GAINS AND
LOSSES ON SALES.  HELVERING V. CHESTER N. WEAVER CO., POST, P. 293. 

PETITIONER ARGUES THAT THE CONSTRUCTION WHICH WE THINK CORRECT LEADS
TO THE HARSH AND ABSURD CONSEQUENCE THAT A SMALL LIQUIDATING DIVIDEND
IS MORE DISADVANTAGEOUS TO THE TAXPAYER THAN NO DISTRIBUTION AT ALL IN
THE CASE WHERE THE STOCK HAS BECOME WORTHLESS.  THIS IS AN ARGUMENT,
MORE PROPERLY ADDRESSED TO CONGRESS, THAT THE STATUTE SHOULD HAVE GONE
FURTHER THAN IT DID BY PROVIDING THAT THE LOSS IN THE CASE OF WORTHLESS
SECURITIES SHOULD BE TREATED AS A LOSS UPON THEIR SALE, AS WAS LATER
DONE BY SEC. 23(G)(2) OF THE 1938 ACT.  BUT IT IS NOT PERSUASIVE THAT
WE SHOULD DISREGARD THE LANGUAGE AND HISTORY OF THE PERTINENT SECTIONS,
WITH CONSEQUENCES EQUALLY HARSH AND ABSURD, TO ADOPT THE CONSTRUCTION
FOR WHICH PETITIONERS CONTEND.  CF. HELVERING V. TWIN BELL OIL
SYNDICATE, 293 U.S. 312, 321. 

WE ARE NOT IMPRESSED BY THE ARGUMENT THAT, AS THE QUESTION HERE
DECIDED IS DOUBTFUL, ALL DOUBTS SHOULD BE RESOLVED IN FAVOR OF THE
TAXPAYER.  IT IS THE FUNCTION AND DUTY OF COURTS TO RESOLVE DOUBTS.  WE
KNOW OF NO REASON WHY THAT FUNCTION SHOULD BE ABDICATED IN A TAX CASE
MORE THAN IN ANY OTHER WHERE THE RIGHTS OF SUITORS TURN ON THE
CONSTRUCTION OF A STATUTE AND IT IS OUR DUTY TO DECIDE WHAT THAT
CONSTRUCTION FAIRLY SHOULD BE.  HERE DOUBTS WHICH MAY ARISE UPON A
CURSORY EXAMINATION OF SECS. 101 AND 115 DISAPPEAR WHEN THEY ARE READ,
AS THEY MUST BE, WITH EVERY OTHER MATERIAL PART OF THE STATUTE,
HELLMICH V. HELLMAN, SUPRA, 237, AND IN THE LIGHT OF THEIR LEGISLATIVE
HISTORY.  MOREOVER, EVERY DEDUCTION FROM GROSS INCOME IS ALLOWED AS A
MATTER OF LEGISLATIVE GRACE, AND "ONLY AS THERE IS CLEAR PROVISION
THEREFOR CAN ANY PARTICULAR DEDUCTION BE ALLOWED  ...  A TAXPAYER
SEEKING A DEDUCTION MUST BE ABLE TO POINT TO AN APPLICABLE STATUTE AND
SHOW THAT HE COMES WITHIN ITS TERMS."  NEW COLONIAL ICE CO. V.
HELVERING, 292 U.S. 435, 440. 

WE HAVE CONSIDERED, BUT FIND IT UNNECESSARY TO DISCUSS, OTHER
ARGUMENTS OF PETITIONERS OF LESSER MOMENT.  AFFIRMED. 

FN1  THE ENUMERATED EXCEPTIONS, NONE OF WHICH ARE APPLICABLE IN THE
PRESENT CASE, RELATE TO SPECIFIED TYPES OF GAINS OR LOSSES UPON
EXCHANGE OF PROPERTY, SOME OF WHICH ARE EXCLUDED FROM THE RECOGNITION
ACCORDED GENERALLY BY THE SECTION TO SUCH GAINS AND LOSSES. 

FN2  THE METHOD OF COMPUTING CAPITAL GAINS UNDER SEC. 101 IS IN
SUBSTANCE THAT OF SECS. 111, 112 AND 113, WHICH IS IDENTIFIED BY SECS.
22 AND 23 WITH THAT PRESCRIBED FOR ASCERTAINING THE GAIN TO A
STOCKHOLDER UPON CORPORATE LIQUIDATION BY SEC. 115.  BY SEC. 22(D) IT
IS PROVIDED: "DISTRIBUTIONS BY CORPORATIONS SHALL BE TAXABLE TO THE
SHAREHOLDERS AS PROVIDED IN SECTION 115"; AND "(E) IN THE CASE OF A
SALE OR OTHER DISPOSITION OF PROPERTY, THE GAIN OR LOSS SHALL BE
COMPUTED AS PROVIDED IN SECTIONS 111, 112, AND 113."  SECTION 101 IN
TERMS PROVIDES THAT "'CAPITAL DEDUCTIONS' MEANS SUCH DEDUCTIONS AS ARE
ALLOWED BY SECTION 23 FOR THE PURPOSE OF COMPUTING NET INCOME, AND ARE
PROPERLY ALLOCABLE TO OR CHARGEABLE AGAINST CAPITAL ASSETS SOLD OR
EXCHANGED DURING THE TAXABLE YEAR."  AND SEC. 23(G) PROVIDES:  "THE
BASIS FOR DETERMINING THE AMOUNT OF DEDUCTION FOR LOSSES SUSTAINED  ...
SHALL BE THE SAME AS IS PROVIDED IN SECTION 113 FOR DETERMINING THE
GAIN OR LOSS FROM THE SALE OR OTHER DISPOSITION OF PROPERTY." 

FN3  SEC. 12(C):  "CAPITAL NET GAINS AND LOSSES.  - FOR RATE AND
COMPUTATION OF TAX IN LIEU OF NORMAL AND SURTAX IN CASE OF NET INCOMES
OF NOT LESS THAN $30,000, APPROXIMATELY, OR IN CASE OF NET INCOMES,
EXCLUDING ITEMS OF CAPITAL GAIN, CAPITAL LOSS, AND CAPITAL DEDUCTIONS,
OF NOT LESS THAN $30,000, APPROXIMATELY, SEE SECTION 101." 

ONLY IN THE CASE OF INCOMES IN EXCESS OF $30,000, APPROXIMATELY, DO
THE AGGREGATE OF THE NORMAL AND SURTAX EXCEED THE 12 1/2% RATE PROVIDED
FOR IN SEC. 101. 

FN4  SECTION 201(C) OF THE 1918 ACT, OMITTED FROM THE 1921 ACT, WAS
CONTINUED, SO FAR AS NOW RELEVANT, IN THE FORM IN WHICH IT LATER
APPEARED IN SEC. 115(C) OF THE ACT OF 1928, AS SEC. 201(C) OF THE 1924
AND 1926 ACTS, AND AS SEC. 115(C) OF THE 1932 AND 1934 ACTS.  THE
PROVISIONS OF SEC. 101 FOR COMPUTING CAPITAL GAINS OR LOSSES UPON SALES
OR EXCHANGES AND TAXING THEM ON A DIFFERENT BASIS FROM ORDINARY INCOME
FIRST APPEARED AS SEC. 206 OF THE REVENUE ACT OF 1921, WHICH WAS
CONTINUED AS SEC. 208 OF THE REVENUE ACTS OF 1924 AND 1926 AND AS SEC.
101 OF THE REVENUE ACTS OF 1928 AND 1932. 

FN5  THE REPORT OF THE SENATE COMMITTEE ON FINANCE (REPORT NO. 398,
68TH CONG., 1ST SESS.) STATES AT PAGE 11:  "  ...  THE BILL TREATS A
LIQUIDATING DIVIDEND AS A SALE OF THE STOCK, WITH THE RESULT THAT THE
GAIN TO THE TAXPAYER IS TREATED NOT AS A DIVIDEND SUBJECT ONLY TO THE
SURTAX BUT AS A GAIN FROM THE SALE OF PROPERTY WHICH MAY BE TREATED AS
A CAPITAL GAIN.  THE TREATMENT OF LIQUIDATING DIVIDENDS UNDER THE BILL
IS SUBSTANTIALLY THE SAME AS PROVIDED FOR IN THE REVENUE ACT OF 1918. 
A LIQUIDATING DIVIDEND IS, IN EFFECT, A SALE BY THE STOCKHOLDER OF HIS
STOCK TO THE CORPORATION; HE SURRENDERS HIS INTEREST IN THE CORPORATION
AND RECEIVES MONEY IN PLACE THEREOF.  TREATING SUCH A TRANSACTION AS A
SALE AND WITHIN THE CAPITAL GAINS PROVISIONS IS CONSISTENT WITH THE
ENTIRE THEORY OF THE ACT AND, FURTHERMORE, IS THE ONLY METHOD OF
TREATING SUCH DISTRIBUTIONS WHICH CAN BE EASILY ADMINISTERED." 

THE REPORT OF THE HOUSE WAYS AND MEANS COMMITTEE (REPORT NO. 179,
68TH CONG., 1ST SESS.) STATES WITH RESPECT TO SEC. 201(C), AT PAGE 11:
"  ...  THE TREASURY HAS CONSTRUED THE EXISTING LAW AS TAXING
LIQUIDATING DIVIDENDS, NOT AS CAPITAL GAINS, BUT AS DIVIDENDS SUBJECT
TO THE SURTAX RATES.  THE PROPOSED BILL, AS DID THE 1918 ACT, TREATS A
LIQUIDATING DIVIDEND AS A SALE OF THE STOCK TO THE CORPORATION AND
RECOGNIZES THE TRUE EFFECT OF SUCH A DISTRIBUTION." 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER, AND MR. JUSTICE ROBERTS
DISSENT. 
..END :





HELVERING V. WEAVER CO., 305 U.S. 293 


NO. 304.  ARGUED NOVEMBER 17, 1938.  - DECIDED DECEMBER 5, 1938.  - 97
F.2D 31, REVERSED. 


PAYMENTS RECEIVED BY A CORPORATION AS A STOCKHOLDER IN ANOTHER
CORPORATION, UPON THE LATTER'S COMPLETE LIQUIDATION, ARE TO BE TREATED
AS PAYMENTS UPON A SALE OR EXCHANGE OF THE STOCK UNDER SEC. 23(R)(1) OF
THE REVENUE ACT OF 1932, WHICH ALLOWS THE DEDUCTION OF LOSSES FROM
SALES OR EXCHANGES OF STOCK, NOT HELD FOR MORE THAN TWO YEARS, ONLY TO
THE EXTENT OF THE GAINS FROM SUCH SALES OR EXCHANGES.  P. 295. 

THE TAXABLE YEAR SHALL BE ALLOWED AS DEDUCTIONS IN COMPUTING NET
INCOME, SUBJECT TO THE LIMITATIONS PROVIDED IN SUBSECTION (R);
SUBSECTION (R)(1) DECLARES THAT LOSSES FROM "SALES OR EXCHANGES" OF
STOCK WHICH ARE NOT "CAPITAL ASSETS" (AS DEFINED IN SEC. 101, I.E.,
PROPERTY HELD BY THE TAXPAYER FOR MORE THAN TWO YEARS) SHALL BE ALLOWED
ONLY TO THE EXTENT OF THE GAINS FROM SUCH SALES OR EXCHANGES.  SECTIONS
115 AND 112 ACCORD TO LOSSES ON LIQUIDATION THE SAME RECOGNITION
ACCORDED BY SEC. 23(R) TO LOSSES UPON SALES.  CF. WHITE V. UNITED
STATES, ANTE, P. 281.  P. 295. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. CHESTER N. WEAVER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 585, TO REVIEW A JUDGMENT REVERSING AN ORDER OF
THE BOARD OF TAX APPEALS, 35 B.T.A. 514, SUSTAINING AN ADDITIONAL
INCOME TAX. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION TO BE DECIDED IS WHETHER PAYMENTS RECEIVED BY A
CORPORATION AS A STOCKHOLDER IN ANOTHER CORPORATION, UPON THE LATTER'S
COMPLETE LIQUIDATION, ARE TO BE TREATED AS PAYMENTS UPON A SALE OR
EXCHANGE OF THE STOCK UNDER SEC. 23(R)(1) OF THE REVENUE ACT OF 1932,
47 STAT. 169, WHICH ALLOWS THE DEDUCTION OF LOSSES FROM SALES OR
EXCHANGES OF STOCK, NOT HELD FOR MORE THAN TWO YEARS, ONLY TO THE
EXTENT OF THE GAINS FROM SUCH SALES OR EXCHANGES. 

ON AUGUST 9, 1932, RESPONDENT, A CALIFORNIA CORPORATION, PURCHASED
SHARES OF STOCK IN ANOTHER CORPORATION.  IN THE FOLLOWING YEAR THE
LATTER WAS COMPLETELY LIQUIDATED.  THE LIQUIDATING DIVIDENDS RECEIVED
BY RESPONDENT AMOUNTED TO LESS THAN THE COST OF THE STOCK.  IN ITS
INCOME TAX RETURN FOR 1933 RESPONDENT DEDUCTED THE FULL AMOUNT OF THE
LOSS FROM GROSS INCOME.  THE COMMISSIONER RULED THAT, SINCE THE LOSS
WAS SUSTAINED UPON AN EXCHANGE OF STOCK HELD LESS THAN TWO YEARS AND
THE RESPONDENT HAD RECEIVED NO GAINS AGAINST WHICH THE LOSS COULD BE
APPLIED, THE DEDUCTION WAS FORBIDDEN BY SEC. 23(R)(1), AND HE FOUND A
DEFICIENCY ACCORDINGLY.  THE ORDER OF THE BOARD OF TAX APPEALS
SUSTAINING THE DEFICIENCY WAS REVERSED BY THE COURT OF APPEALS FOR THE
NINTH CIRCUIT, 97 F.2D 31.  WE GRANTED CERTIORARI, OCTOBER 10, 1938, TO
RESOLVE THE CONFLICT BETWEEN THE DECISION OF THE COURT BELOW AND THAT
OF THE COURT OF CLAIMS IN WHITE V. UNITED STATES, 86 CT. CLS. 125; 21
F.SUPP.  361, THIS DAY AFFIRMED ON CERTIORARI, ANTE, P. 281. 

THE TAXABLE YEAR SHALL BE ALLOWED AS DEDUCTIONS IN COMPUTING NET
INCOME, SUBJECT TO THE LIMITATIONS PROVIDED IN SUB-SECTION (R).  SUB

"LOSSES FROM SALES OR EXCHANGES OF STOCKS AND BONDS  ...  WHICH ARE
NOT CAPITAL ASSETS (AS DEFINED IN SECTION 101) SHALL BE ALLOWED ONLY TO
THE EXTENT OF THE GAINS FROM SUCH SALES OR EXCHANGES  ... "  BY SEC.
101 "'CAPITAL ASSETS' MEANS PROPERTY HELD BY THE TAXPAYER FOR MORE THAN
TWO YEARS  ...  " 

SINCE THE LOSS SUSTAINED BY RESPONDENT WAS NOT FROM THE SALE OR
EXCHANGE OF THE STOCK, IT IS CONTENDED THAT SUBSECTION (R) HAS NO
APPLICATION AND THAT THE LOSS IS DEDUCTIBLE IN FULL, AS ARE OTHER
LOSSES, UNDER SEC. 23(F).  WHETHER SEC. 23(F) OR 23(R) APPLIES MUST BE
ANSWERED BY DECIDING WHETHER, UNDER SEC. 115(C), STOCKHOLDERS' LOSSES
UPON A CORPORATE LIQUIDATION ARE TO BE TREATED, FOR PURPOSES OF
COMPUTATION OF THE TAX, IN THE SAME MANNER AS LOSSES UPON A SALE OR
EXCHANGE OF THE STOCK. 

THE SCHEME OF THE 1932 ACT, AS RESPECTS THE TREATMENT OF GAINS AND
LOSSES UPON THE SALE OR EXCHANGE OF PROPERTY ON A DIFFERENT BASIS FROM
OTHER TYPES OF GAIN OR LOSS, IS SUBSTANTIALLY THAT OF THE 1928 ACT,
WHICH WE HAVE CONSIDERED IN WHITE V. UNITED STATES, SUPRA.  THE
PROVISIONS OF SECS. 12(C), 22(D), (E), 23, 101, 111, 112, 113 AND
115(C) OF THE 1928 ACT, DISCUSSED IN THE WHITE CASE, SO FAR AS NOW
RELEVANT WERE REENACTED IN THE SAME NUMBERED SECTIONS OF THE 1932 ACT. 
THE CONSIDERATIONS WHICH IN THAT CASE LED US TO THE CONCLUSION THAT
SEC. 115(C) OF THE 1928 ACT HAD PLACED STOCKHOLDERS' GAINS AND LOSSES
FROM LIQUIDATIONS ON THE SAME BASIS AS GAINS AND LOSSES FROM SALES OF
THE STOCK FOR PURPOSES OF COMPUTATION OF THE TAX, LEAD US TO THE SAME
CONCLUSION WITH RESPECT TO THE 1932 ACT. 

WE FIND NOTHING IN THE LANGUAGE OR HISTORY OF SEC. 23(R) TO SUGGEST
THAT CONGRESS, IN ENACTING IT, HAD ANY PURPOSE TO RESTRICT THE
OPERATION OF SEC. 115(C) AS WE HAVE CONSTRUED IT.  SECTION 23(R), LIKE
SEC. 101 IN THE 1932 AND EARLIER ACTS, SPEAKS OF LOSSES RESULTING ONLY
FROM SALES OR EXCHANGES.  BUT THE ONE DOES NOT MORE THAN THE OTHER
RESTRICT THE OPERATION OF THE PROVISIONS OF SECS. 115 AND 112, WHICH
ACCORD TO LOSSES ON LIQUIDATION THE SAME RECOGNITION ACCORDED BY SEC.
23(R) TO LOSSES UPON SALES.  CONGRESS, IN ENACTING THE 1934 ACT,
RECOGNIZED THAT UNDER THAT OF 1932 "  ...  A DISTRIBUTION IN
LIQUIDATION OF A CORPORATION IS TREATED IN THE SAME MANNER AS A SALE OF
STOCK."  REPORT OF SENATE COMMITTEE ON FINANCE, NO. 558, 73RD CONG.,
2ND SESS., P. 37.  TO PREVENT AVOIDANCE OF SURTAX THROUGH LIQUIDATION
OF CORPORATIONS WITH LARGE SURPLUSES, CONGRESS FOUND IT NECESSARY TO
PLACE GAINS ON LIQUIDATIONS ON A DIFFERENT BASIS FROM GAINS ON SALES. 
IT ACCOMPLISHED THIS BY AMENDING SEC. 115(C) TO PROVIDE:  "DESPITE THE
PROVISIONS OF SECTION 117(A)(CORRESPONDING TO SEC. 101 IN THE EARLIER
ACTS SPECIALLY TAXING CAPITAL GAINS AND LOSSES) 100 PER CENTUM OF THE
GAIN SO RECOGNIZED SHALL BE TAKEN INTO ACCOUNT IN COMPUTING NET
INCOME."  48 STAT. 711. 

IT FOLLOWS THAT THE EXTENT TO WHICH THE TAXPAYER CAN DEDUCT THE LOSS
IS CONTROLLED BY SEC. 23(R)(1), AND THAT SINCE THE STOCK WAS HELD FOR
LESS THAN TWO YEARS AND THERE WERE NO GAINS AGAINST WHICH THE LOSS
COULD BE OFFSET, IT CAN NOT BE DEDUCTED FROM GROSS INCOME.  REVERSED. 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER AND MR. JUSTICE ROBERTS
DISSENT. 
..END :






















NEBLETT V. CARPENTER, 305 U.S. 297 


NO. 21.  ARGUED OCTOBER 18, 1938.  - DECIDED DECEMBER 5, 1938.  - 10
CAL.2D 307 - 74 P.2D 761, AFFIRMED. 


1.  DECISIONS OF THE SUPREME COURT OF CALIFORNIA, TO THE EFFECT - 

(1)  THAT A PROCEEDING FOR REHABILITATION OF AN INSURANCE COMPANY,
BEGUN BEFORE A DISQUALIFIED JUDGE, COULD BE CARRIED ON AND A TRANSFER
OF ASSETS MADE UNDER HIS VOID ORDER BE RATIFIED BY ORDERS OF A
QUALIFIED JUDGE WHO TOOK HIS PLACE; 

(2)  THAT THE STATE INSURANCE CODE AUTHORIZED THE INSURANCE
COMMISSIONER TO DELEGATE TO A CORPORATION, ORGANIZED BY HIM, POWERS AND
DUTIES IN AID OF HIS ADMINISTRATION OF THE ASSETS OF AN INSOLVENT
INSURANCE COMPANY; 

(3)  THAT THE AUTHORITY WHICH THE CODE CONFERS ON THE COMMISSIONER TO
ENTER INTO REHABILITATION OR INSURANCE AGREEMENTS EMBRACES A CONTRACT
FOR ASSUMPTION OF THE INSOLVENT COMPANY'S POLICIES BY A NEW COMPANY
ORGANIZED BY THE COMMISSIONER; AND 

(4)  THAT ACTION OF THE COMMISSIONER IN THIS CASE DID NOT VIOLATE
CERTAIN STATE STATUTES CONCERNING FRAUDULENT CONVEYANCES - HELD RULINGS
ON LOCAL LAW NOT REVIEWABLE BY THIS COURT.  PP. 301-302. 

2.  WHETHER A STATE STATUTE DELEGATES LEGISLATIVE FUNCTIONS TO THE
STATE INSURANCE COMMISSIONER IN CONTRAVENTION OF THE STATE CONSTITUTION
IS A QUESTION OF STATE LAW THE DECISION OF WHICH BY THE STATE'S HIGHEST
COURT IS BINDING HERE.  P. 302. 

3.  THE PROVISIONS OF THE INSURANCE CODE OF CALIFORNIA AUTHORIZING
THE COMMISSIONER, AS CONSERVATOR, AND WITH THE APPROVAL OF THE COURT,
TO "MUTUALIZE OR REINSURE THE BUSINESS" OF THE COMPANY "OR ENTER INTO
REHABILITATION AGREEMENTS," HELD NOT SO VAGUE THAT A PLAN OF
REHABILITATION BY THE FORMATION OF A NEW COMPANY WOULD DEPRIVE
CREDITORS OF THEIR PROPERTY WITHOUT DUE PROCESS OF LAW.  P. 303. 

4.  A PLAN AND AGREEMENT FOR THE REHABILITATION OF A CALIFORNIA
INSURANCE COMPANY (WHICH BECAME INSOLVENT AS A RESULT OF UNPROFITABLE
NONCANCELABLE HEALTH AND ACCIDENT POLICIES) PROVIDED FOR THE FORMATION
BY THE COMMISSIONER OF A NEW COMPANY.  THE ASSETS OF THE OLD COMPANY
WOULD BE TRANSFERRED TO THE NEW IN EXCHANGE FOR THE CAPITAL STOCK OF
THE LATTER.  THE NEW COMPANY WOULD ASSUME THE POLICIES AND OBLIGATIONS
OF THE OLD COMPANY TO THE EXTENT PROVIDED IN THE AGREEMENT. 
POLICYHOLDERS WERE TO HAVE THE OPTION OF TAKING INSURANCE FROM THE NEW
COMPANY OR PROVING THEIR CLAIMS FOR BREACH OF THEIR CONTRACTS,
PROVISION FOR PAYMENT BEING MADE BY COVENANTS OF THE NEW COMPANY AND
CERTAIN RETAINED ASSETS OF THE OLD.  THE PLAN AND AGREEMENT WERE
APPROVED BY THE STATE COURT.  SEVERAL HOLDERS OF LIFE AND NONCANCELABLE
HEALTH AND ACCIDENT INSURANCE POLICIES CHALLENGED THE PLAN AND COURT
ORDER APPROVING IT AS DENYING THEM DUE PROCESS OF LAW AND IMPAIRING THE
OBLIGATION OF THEIR CONTRACTS.  UPON REVIEW OF A DECISION OF THE STATE
COURT OVERRULING THEIR CLAIMS, HELD: 

(1)  THE CONTENTION THAT DISSENTING POLICYHOLDERS DO NOT HAVE THE
OPTION OF PROVING THEIR CLAIMS FOR BREACH OF CONTRACT BECAUSE NO
LIQUIDATOR HAS BEEN APPOINTED MUST BE DISMISSED, SINCE NO REASON
APPEARS WHY ACTION CANNOT, CONSISTENTLY WITH THE PLAN, BE TAKEN UPON A
PENDING APPLICATION FOR THE APPOINTMENT OF THE COMMISSIONER AS
LIQUIDATOR.  P. 303. 

(2)  THE RECORD BEFORE THIS COURT IN THIS CASE CONTAINING ONLY THE
JUDGMENT ROLL, IT MUST BE PRESUMED THAT THE EVIDENCE SUPPORTED THE
DECREE OF THE STATE COURT.  P. 304. 

(3)  THE DISSENTING POLICYHOLDERS HAVE NO CONSTITUTIONAL RIGHT TO A
PARTICULAR FORM OF REMEDY.  P. 305. 

(4)  AS FAR AS APPEARS FROM THE RECORD IN THIS CASE, THE METHOD OF
LIQUIDATION PROVIDED BY THE PLAN ADOPTED WAS AS FAVORABLE TO DISSENTING
POLICYHOLDERS AS WOULD HAVE BEEN A SALE OF THE ASSETS AND PRO RATA
DISTRIBUTION TO ALL CREDITORS, AND THEY HAVE THEREFORE FAILED TO SHOW
THAT THEIR PROPERTY IS BEING TAKEN WITHOUT DUE PROCESS, OR THAT THE
OBLIGATIONS OF THEIR CONTRACTS WILL BE IMPAIRED IN VIOLATION OF THE
CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION.  P. 305. 

NEBLETT ET AL. V. CARPENTER, INSURANCE COMMISSIONER, ET AL. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

CERTIORARI, 304 U.S. 555, TO REVIEW A JUDGMENT AFFIRMING AN ORDER OF
THE SUPERIOR COURT OF LOS ANGELES COUNTY WHICH APPROVED A PLAN OF THE
INSURANCE COMMISSIONER FOR THE REHABILITATION OF AN INSOLVENT INSURANCE
COMPANY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS RAISED ARE WHETHER PROCEEDINGS FOR THE REHABILITATION
OF AN INSURANCE COMPANY, PURSUANT TO THE INSURANCE CODE OF CALIFORNIA,
FN1  UNCONSTITUTIONALLY DEPRIVE POLICY HOLDERS OF THEIR PROPERTY
WITHOUT DUE PROCESS OF LAW, OR IMPAIR THE OBLIGATION OF THEIR
CONTRACTS.  FN2 

FOR MANY YEARS THE PACIFIC MUTUAL LIFE INSURANCE COMPANY OF
CALIFORNIA HAS WRITTEN LIFE, HEALTH, AND ACCIDENT INSURANCE.  SINCE
1918 IT HAS ISSUED NONCANCELABLE HEALTH AND ACCIDENT POLICIES.  THE
INSURANCE COMMISSIONER OF CALIFORNIA DETERMINED THAT, WHILE THE LIFE
AND GENERAL HEALTH AND ACCIDENT BUSINESS WAS IN SOUND CONDITION, THERE
WAS AN OVER-ALL DEFICIT IN RESERVES DUE TO THE UNPROFITABLE NATURE OF
OUTSTANDING NONCANCELABLE HEALTH AND ACCIDENT RISKS, WITH THE RESULT
THAT THE COMPANY WAS INSOLVENT WITHIN THE MEANING OF THE CODE.  JULY
22, 1936, THE SUPERIOR COURT OF LOS ANGELES COUNTY, ON HIS APPLICATION,
APPOINTED HIM CONSERVATOR.  ON THE SAME DAY HE APPLIED FOR AND OBTAINED
AN ORDER WHICH APPOINTED HIM LIQUIDATOR OF THE COMPANY.  ON THE SAME
DAY, AS CONSERVATOR, HE PETITIONED FOR AUTHORITY TO REHABILITATE THE
COMPANY AND SUBMITTED A PLAN EMBODYING AN AGREEMENT, TO BE EXECUTED BY
THE COMPANY AND HIMSELF AS COMMISSIONER, WITH A NEW CORPORATION, WHICH
HE WOULD FORM, ALL OF WHOSE CAPITAL STOCK HE WOULD PURCHASE WITH THE
ASSETS OF THE COMPANY, AND TO WHICH HE WOULD TRANSFER MOST OF THE
ASSETS, RETAINING THE STOCK OF THE NEW COMPANY AND CERTAIN OTHER ASSETS
OF THE OLD.  THE NEW COMPANY WAS TO ASSUME THE POLICIES AND OBLIGATIONS
OF THE OLD COMPANY TO THE EXTENT PROVIDED IN THE AGREEMENT.  POLICY
HOLDERS WERE TO HAVE THE OPTION OF TAKING INSURANCE FROM THE NEW
COMPANY OR PROVING THEIR CLAIMS FOR BREACH OF THEIR CONTRACTS,
PROVISION FOR PAYMENT BEING MADE BY COVENANTS OF THE NEW COMPANY AND
THE RETAINED ASSETS OF THE OLD.  THE COURT APPROVED THE PLAN AND
AUTHORIZED THE EXECUTION AND PERFORMANCE OF THE AGREEMENT. 

SHORTLY AFTERWARDS IT WAS DISCOVERED THAT THE JUDGE WHO ACTED IN THE
CAUSE WAS PROBABLY DISQUALIFIED BY OWNERSHIP OF A POLICY ISSUED BY THE
COMPANY.  AUGUST 11, 1936, ANOTHER JUDGE ENTERED AN ORDER, WHICH, AFTER
ADVERTING TO THE POSSIBLE DISQUALIFICATION OF THE JUDGE WHO MADE THE
EARLIER ORDERS, RATIFIED, APPROVED, AND CONFIRMED THE ORDER APPOINTING
THE COMMISSIONER CONSERVATOR AND, ON THE BASIS OF THE PETITION FILED ON
JULY 22, INDEPENDENTLY, AND AS AN ORIGINAL ORDER, APPOINTED THE
COMMISSIONER CONSERVATOR, INVESTED HIM WITH TITLE TO ALL THE COMPANY'S
ASSETS, AND AUTHORIZED HIM TO ENDEAVOR TO CONSUMMATE A REHABILITATION
OR REINSURANCE PLAN.  ON SEPTEMBER 25 THE COMMISSIONER PRESENTED A
FURTHER PETITION FOR APPROVAL OF THE REHABILITATION AND REINSURANCE
AGREEMENT, WHICH RECITED HIS ACTIONS TAKEN PURSUANT TO THE COURT'S
ORDERS AND TO THE PLAN OF REHABILITATION, AND ASKED APPROVAL THEREOF. 
AN ORDER ISSUED WHICH DIRECTED ALL INTERESTED PERSONS TO SHOW CAUSE WHY
THE AGREEMENT, AND WHAT HAD BEEN DONE PURSUANT TO IT, SHOULD NOT BE
APPROVED AND ALL THE PRIOR ACTS OF THE COMMISSIONER RATIFIED AND
CONFIRMED, AND FIXED A HEARING.  AT THE HEARING, WHICH LASTED FROM
OCTOBER 19 TO DECEMBER 4, MANY OFFICERS, STOCKHOLDERS AND POLICY
HOLDERS WHO HAD INTERVENED, INCLUDING THE PETITIONERS, WERE HEARD. 
PLANS OF REHABILITATION PRESENTED BY SOME OF THEM WERE CONSIDERED;
EVIDENCE WAS TAKEN AND ARGUMENT WAS HAD.  DECEMBER 4 AN ORDER WAS
ENTERED APPROVING THE COMMISSIONER'S PLAN AND AGREEMENT, RATIFYING THE
ACTION HE HAD TAKEN, AND AUTHORIZING HIM AS CONSERVATOR, AND AS
LIQUIDATOR, IF HE SHOULD BE APPOINTED AS SUCH, TO CARRY OUT THE
REHABILITATION AGREEMENT.  THE COURT RETAINED JURISDICTION TO MAKE
FURTHER ORDERS FOR THE EFFECTUATION OF THE PLAN AND AGREEMENT. 

THE SUPREME COURT OF CALIFORNIA AFFIRMED THE ORDER.  FN3  THE ACTION
OF THAT COURT IN OVERRULING CERTAIN OF PETITIONERS' CONTENTIONS IS
CLAIMED TO HAVE DEPRIVED THEM OF THEIR PROPERTY WITHOUT DUE PROCESS. 

THE COURT DECLARED THAT THE ORDERS OF JULY 22, 1936, WERE VOID
BECAUSE OF THE DISQUALIFICATION OF THE JUDGE WHO MADE THEM.  THE
PETITIONERS ARGUE THAT IN CONSEQUENCE THE COMMISSIONER'S TRANSFER OF
ASSETS TO A NEW COMPANY PURSUANT TO THE APPROVED PLAN WAS VOID AND THAT
ITS ILLEGALITY COULD NOT BE CURED BY SUBSEQUENT COURT ACTION.  THE
SUPREME COURT HELD, HOWEVER, THAT THE COURT IN WHICH THE COMMISSIONER'S
ORIGINAL PETITION WAS FILED THEREBY ACQUIRED JURISDICTION AND THAT THE
AVOIDANCE OF THE ORDERS MADE BY THE DISQUALIFICATION OF THE JUDGE WHO
ENTERED THEM DID NOT DISENABLE A QUALIFIED JUDGE THEREAFTER FROM
ENTERING VALID ORDERS BASED ON THE PETITION.  IT IS FURTHER URGED THAT
AS THE OLD COMPANY'S ASSETS WERE TRANSFERRED TO THE NEW PURSUANT TO A
VOID ORDER THERE WAS NOTHING ON WHICH ANY LATER ORDER COULD OPERATE. 
THE LATER ORDER, WHICH IS THE SUBJECT OF REVIEW, RATIFIED AND CONFIRMED
THE TRANSFER, AND THE SUPREME COURT HELD THE ORDER EFFECTIVE UNDER THE
INSURANCE CODE. 

IT IS SAID THAT THE CODE DOES NOT AUTHORIZE THE COMMISSIONER TO
DELEGATE TO A CORPORATION ORGANIZED BY HIM POWERS AND DUTIES IN AID OF
HIS ADMINISTRATION OF THE ASSETS OF AN INSOLVENT INSURANCE COMPANY. 
THE STATE COURT HAS HELD SUCH PROCEDURE IS IN ACCORDANCE WITH THE CODE
PROVISIONS. 

IT IS ARGUED THAT THE AUTHORITY WHICH THE CODE CONFERS ON THE
COMMISSIONER TO ENTER INTO REHABILITATION OR REINSURANCE AGREEMENTS
DOES NOT EMBRACE A CONTRACT FOR ASSUMPTION OF THE INSOLVENT COMPANY'S
POLICIES BY A NEW COMPANY ORGANIZED BY THE COMMISSIONER.  THE COURT
BELOW HELD THE PROVISIONS OF THE STATUTE CONTEMPLATED SUCH ACTION. 

IT IS CLAIMED THAT THE COMMISSIONER'S ACTION VIOLATED CERTAIN STATE
STATUTES CONCERNING FRAUDULENT CONVEYANCES.  THE STATE COURT HELD THE
CONTRARY. 

ALL OF THESE HOLDINGS CONCERN MATTERS OF STATE LAW AND AMOUNT AT MOST
TO ALLEGED ERRONEOUS CONSTRUCTIONS OF THE STATE'S STATUTES BY ITS OWN
COURT OF LAST RESORT.  SUCH DECISIONS WOULD NOT BE A DENIAL OF THE DUE
PROCESS GUARANTEED BY THE FOURTEENTH AMENDMENT.  FN4  WE ARE,
THEREFORE, WITHOUT JURISDICTION TO REVIEW THE STATE COURT'S DECISION OF
ANY OF THOSE QUESTIONS. 

IT IS ARGUED THAT THE CODE UNCONSTITUTIONALLY DELEGATES LEGISLATIVE
FUNCTIONS TO THE COMMISSIONER, AND THAT THE SUPREME COURT ERRED IN NOT
SO HOLDING.  THIS, AGAIN, IS A QUESTION OF STATE LAW THE DECISION OF
WHICH BY THE STATE'S HIGHEST COURT IS BINDING UPON US.  FN5 

THE INSURANCE CODE PROVIDES:  "IN ANY PROCEEDING UNDER THIS ARTICLE,
THE COMMISSIONER, AS CONSERVATOR  ...  MAY, SUBJECT TO THE APPROVAL OF
SAID COURT,  ...  MUTUALIZE OR REINSURE THE BUSINESS OF" AN INSURANCE
COMPANY "OR ENTER INTO REHABILITATION AGREEMENTS."  THE PETITIONERS
ASSERT THAT THIS LANGUAGE IS SO VAGUE THAT NO ONE CAN DETERMINE WHAT
POWERS ARE INTENDED TO BE CONFERRED UPON THE COMMISSIONER AND THAT THE
STATE COURTS, IN CONSTRUING THE CODE TO AUTHORIZE THE PLAN AND
PROCEDURE HERE IN QUESTION UNCONSTITUTIONALLY ATTEMPTED TO READ A
MEANING INTO THE STATUTE OF WHICH IT IS NOT SUSCEPTIBLE, AND THUS
DEPRIVED THE PETITIONERS OF THEIR PROPERTY WITHOUT DUE PROCESS.  THE
COURT BELOW FULLY CONSIDERED THE CONTENTION AND OVERRULED IT.  WE THINK
ITS DECISION WAS JUSTIFIED BY THE CRITERIA APPROVED BY THIS COURT. 
FN6 

THE PETITIONERS UNSUCCESSFULLY CLAIMED IN THE SUPREME COURT THAT THE
METHOD OF LIQUIDATION ADOPTED BY THE COMMISSIONER AND APPROVED BY THE
COURT, EVEN IF AUTHORIZED BY THE INSURANCE CODE, DENIES THEM DUE
PROCESS AND IMPAIRS THE OBLIGATION OF THEIR POLICY CONTRACTS.  BECAUSE
OF THESE CONTENTIONS WE GRANTED CERTIORARI. 

ONE OF THE PETITIONERS HOLDS A LIFE POLICY WHICH, IF HE ASSENTS TO
THE PLAN, WILL BE REPLACED BY A POLICY OF THE NEW COMPANY FOR THE SAME
AMOUNT.  THE OTHERS ARE HOLDERS OF NONCANCELABLE HEALTH AND ACCIDENT
POLICIES NO LIABILITY UNDER WHICH HAS ACCRUED.  IF THEY ASSENT TO THE
PLAN AND ACCEPT THE OBLIGATION OF THE NEW COMPANY, IN LIEU OF THAT OF
THE OLD, THEY WILL RECEIVE INSURANCE FOR ONLY A PERCENTAGE OF THE FACE
VALUE OF THEIR OLD POLICIES.  THE ALTERNATIVE OPEN TO ALL IS TO DISSENT
FROM THE PLAN AND TO PROVE THEIR CLAIMS FOR BREACH OF THEIR POLICY
CONTRACTS AGAINST THE LIQUIDATOR OF THE OLD COMPANY.  THEY INSIST THIS
OPTION IS NOT AVAILABLE TO THEM AS NO LIQUIDATOR HAS BEEN APPOINTED. 
WHEN THEY TOOK THEIR APPEAL TO THE STATE SUPREME COURT, THERE WAS
PENDING AN APPLICATION FOR THE APPOINTMENT OF THE COMMISSIONER AS
LIQUIDATOR, AND NO REASON IS ASSIGNED WHY ACTION CANNOT BE TAKEN UPON
THIS PETITION PURSUANT TO THE PLAN.  THE SUPREME COURT HAS SAID:  "THE
PROPOSAL CONTEMPLATES THAT IN DUE COURSE THE COMMISSIONER WILL BE
APPOINTED LIQUIDATOR OF THE OLD COMPANY, AND IN THAT CAPACITY WILL
RECEIVE, LIQUIDATE, AND PAY ALL CLAIMS AGAINST THE OLD COMPANY FROM THE
OLD COMPANY'S ASSETS NOT TRANSFERRED TO THE NEW COMPANY (INCLUDING THE
NEW COMPANY'S STOCK), AND FROM CERTAIN MONEYS FURNISHED TO THE
LIQUIDATOR BY THE NEW COMPANY AS PROVIDED IN THE AGREEMENT."  10 CAL.2D
307, 322; 74 P.2D 761, 771.  THE PETITIONERS ASSERT THAT THE FUNDS
PROVIDED WILL BE INSUFFICIENT FOR THE PAYMENT OF THEIR CLAIMS AND
OTHERS OF LIKE CHARACTER, SHOULD THEY DISSENT FROM THE PLAN.  THE ORDER
OF THE SUPERIOR COURT RECITES THAT THE PLAN MAKES ADEQUATE PROVISION
FOR EACH CLASS OF POLICY HOLDERS, FOR THE CREDITORS, AND FOR THE
STOCKHOLDERS; THAT THE PLAN IS FAIR AND EQUITABLE; THAT IT DOES NOT
DISCRIMINATE UNFAIRLY OR ILLEGALLY IN FAVOR OF ANY CLASS OF POLICY
HOLDERS; THAT THE INTANGIBLE ASSETS CONSERVED BY THE PLAN ARE WORTH
SEVERAL MILLION DOLLARS AND THAT IF THE OLD COMPANY WERE DISSOLVED AND
ITS ASSETS SOLD THEIR VALUE WOULD BE SUBSTANTIALLY LESS THAN THE AMOUNT
WHICH WILL BE REALIZED FROM THEM UNDER THE PLAN. 

THE RECORD UPON WHICH THE APPEAL WAS TAKEN TO THE SUPREME COURT OF
THE STATE, AND WHICH HAS BEEN BROUGHT HERE BY OUR WRIT, CONTAINS ONLY
THE JUDGMENT ROLL.  THE EVIDENCE IS NOT BEFORE US AND THE COURT BELOW
HAS HELD THAT, UNDER THE STATE LAW, THE JUDGE WAS NOT BOUND TO MAKE
SPECIAL FINDINGS.  WE MUST PRESUME THAT THERE WAS SUBSTANTIAL EVIDENCE
TO SUSTAIN THE COURT'S DECREE.  ON ACCOUNT OF THE STATE OF THE RECORD
THE PETITIONERS ARE UNABLE TO POINT TO ANY EVIDENCE TO SUSTAIN THEIR
CONTENTION THAT IF THEY DISSENT THEY WILL NOT RECEIVE AS MUCH IN
LIQUIDATION OF THEIR CLAIMS FOR BREACH OF THEIR POLICY CONTRACTS AS
THEY WOULD UPON A SALE OF ASSETS AND DISTRIBUTION OF THE PROCEEDS. 

THE PETITIONERS HAVE NO CONSTITUTIONAL RIGHT TO A PARTICULAR FORM OF
REMEDY.  FN7  THEY ARE NOT ENTITLED, AS AGAINST THEIR FELLOWS WHO
PREFER TO COME UNDER THE PLAN AND ACCEPT ITS BENEFITS, TO FORCE, AT
THEIR OWN WISH OR WHIM, A LIQUIDATION WHICH UNDER THE FINDINGS WILL NOT
ADVANTAGE THEM AND MAY SERIOUSLY INJURE THOSE WHO ACCEPT THE BENEFIT OF
THE PLAN.  THEY ARE NOT BOUND, AS WERE THE DISSENTING CREDITORS IN DOTY
V. LOVE, 295 U.S. 64, TO ACCEPT THE OBLIGATION OF THE NEW COMPANY BUT
ARE AFFORDED AN ALTERNATIVE WHEREBY THEY WILL RECEIVE DAMAGES FOR
BREACH OF THEIR CONTRACTS.  THEY HAVE FAILED TO SHOW THAT THE PLAN
TAKES THEIR PROPERTY WITHOUT DUE PROCESS. 

IT IS NOT CONTENDED THAT A STATUTORY SCHEME FOR THE LIQUIDATION OF AN
INSOLVENT DOMESTIC CORPORATION IS PER SE AN IMPAIRMENT OF THE
OBLIGATION OF THE COMPANY'S CONTRACTS.  THE ARGUMENT IS THAT THE
IMPAIRMENT OF CONTRACT ARISES FROM THE LESS FAVORABLE TERMS AND
CONDITIONS OF THE NEW NONCANCELABLE POLICIES WHICH ARE TO BE
SUBSTITUTED FOR THE OLD ONES AND, IN THE CASE OF THE LIFE POLICIES, BY
THE SUBSTITUTION OF A NEW COMPANY AS CONTRACTOR IN PLACE OF THE OLD,
WITHOUT THE CONSENT OF THE POLICY HOLDER.  THIS POSITION IS BOTTOMED
UPON THE THEORY THAT THE POLICY HOLDERS ARE COMPELLED TO ACCEPT THE NEW
COMPANY AS INSURER ON THE TERMS SET OUT IN THE REHABILITATION
AGREEMENT.  AS HAS BEEN POINTED OUT, THEY ARE NOT SO COMPELLED BUT ARE
GIVEN THE OPTION OF A LIQUIDATION WHICH ON THIS RECORD APPEARS AS
FAVORABLE TO THEM AS THAT WHICH WOULD RESULT FROM THE SALE OF THE
ASSETS AND PRO RATA DISTRIBUTION IN SOLUTION OF ALL RESULTING CLAIMS
FOR BREACH OF OUTSTANDING POLICIES.  JUDGMENT AFFIRMED. 

FN1  STATUTES 1935, C. 145, PP. 540-553.  THE SECTIONS OF THE
INSURANCE CODE BEARING UPON THE ISSUES IN THE CASE ARE 1011-16,
INCLUSIVE, 1021, 1024, 1025, 1035, 1037, 1043. 

FN2  IN THE COURT BELOW CONTENTIONS WERE MADE UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT BUT NEITHER THE REASONS
STATED IN SUPPORT OF THE PETITION NOR THE ASSIGNMENTS OF ERROR IN THIS
COURT PRESENT ANY QUESTION UNDER THAT CLAUSE. 

FN3  CARPENTER V. PACIFIC MUTUAL LIFE INS. CO., 10 CAL.2D 307; 74
P.2D 761. 

FN4  ARROWSMITH V. HARMONING, 118 U.S. 194, 196; CENTRAL LAND CO. V.
LAIDLEY, 159 U.S. 103, 112; IOWA CENTRAL RY. CO. V. IOWA, 160 U.S. 389,
393; WEST V. LOUISIANA, 194 U.S. 258, 261; STANDARD OIL CO. V.
MISSOURI, 224 U.S. 270, 287; MCDONALD V. OREGON R. & N. CO., 233 U.S.
665, 669; AMERICAN RY. EXP.  CO. V. KENTUCKY, 273 U.S. 269, 273.    FN5
OHIO V. AKRON PARK DISTRICT, 281 U.S. 74, 79. 

FN6  CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, 391. 

FN7  GIBBES V. ZIMMERMAN, 290 U.S. 326, 332; DOTY V. LOVE, 295 U.S.
64, 70. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





INTER-ISLAND CO. V. HAWAII, 305 U.S. 306 


NO. 94.  ARGUED NOVEMBER 18, 1938.  - DECIDED DECEMBER 5, 1938.  - 96
F.2D 412, AFFIRMED. 


1.  THE CONCLUSION OF THE SUPREME COURT OF HAWAII THAT A COMMON
CARRIER OF FREIGHT AND PASSENGERS BY WATER BETWEEN DIFFERENT POINTS IN
THE TERRITORY WAS A PUBLIC UTILITY WITHIN THE MEANING OF THE HAWAII
UTILITIES ACT OF 1913, IS ACCEPTED BY THIS COURT ON REVIEW.  P. 311. 

2.  ENACTMENT BY CONGRESS OF THE SHIPPING ACT OF 1916 DID NOT OUST
THE PUBLIC UTILITIES COMMISSION OF HAWAII OF ALL JURISDICTION
WHATSOEVER OVER COMMON CARRIERS BY WATER BETWEEN PORTS OF THE
TERRITORY, AND DID NOT ABROGATE THE COMMISSION'S POWER TO EXACT FEES
FROM SUCH CARRIERS TO DEFRAY THE EXPENSE OF INVESTIGATORY SERVICES
WHICH IT STILL HAD AUTHORITY TO PERFORM.  PP. 311, 313. 

3.  AN ACT OF CONGRESS WILL NOT BE DEEMED TO SUPERSEDE A TERRITORIAL
LAW UNLESS THAT INTENTION IS CLEAR.  P. 312. 

4.  THE IMPOSITION OF A TAX UPON A COMMON CARRIER BY WATER BETWEEN
PORTS OF THE TERRITORY OF HAWAII (ASSUMED TO BE ENGAGED IN INTERSTATE
OR FOREIGN COMMERCE), UNDER AN ACT OF THE TERRITORY TO WHICH CONGRESS
HAD EXPRESSLY SUBJECTED SUCH CARRIER, DOES NOT VIOLATE THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION.  P. 313. 

5.  CONGRESS HAS PLENARY LEGISLATIVE AUTHORITY OVER THE PEOPLE AND
GOVERNMENT OF THE TERRITORIES.  P. 314. 

6.  THE GENERAL TAX IMPOSED ON PUBLIC UTILITIES BY THE HAWAII
UTILITIES ACT OF 1913, DESIGNED TO EFFECTUATE A PLAN FOR CONTROL AND
SUPERVISION OF THE UTILITIES OF THE TERRITORY, IS NOT VOID UNDER THE
FIFTH AMENDMENT AS APPLIED TO A PARTICULAR UTILITY WHICH MAY NOT HAVE
DIRECTLY BENEFITED FROM THE INVESTIGATORY AND SUPERVISORY SERVICES
PERFORMED BY THE COMMISSION UNDER THE ACT.  P. 314. 

INTER-ISLAND STEAM NAVIGATION CO. V. TERRITORY OF HAWAII. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 580, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE TERRITORY OF HAWAII IN A SUIT AGAINST THE NAVIGATION COMPANY TO
COLLECT TAXES. 

THE COMMISSION HAS AT NO TIME DURING THE NINE YEARS IN QUESTION MADE
ANY INSPECTION, REGULATION, OR SUPERVISION OF PETITIONER'S BUSINESS,
AND HAS INCURRED NO EXPENSE ON ITS ACCOUNT.  UNDER THESE CIRCUMSTANCES
THE INSPECTION FEES AMOUNTING TO MORE THAN $4000 PER ANNUM LEVIED
AGAINST PETITIONER'S BUSINESS INDISCRIMINATELY (LOCAL, INTERSTATE, AND
FOREIGN) ARE VOID AS A DIRECT BURDEN ON INTERSTATE AND FOREIGN COMMERCE
AND DENY TO PETITIONER DUE PROCESS OF LAW. 

WHERE INSPECTION FEES ARE ASSESSED AGAINST A NUMBER OF UNRELATED
PUBLIC UTILITIES AND ARE DEPOSITED IN A COMMON FUND TO BE USED BY THE
COMMISSION FOR THE REGULATION AND INSPECTION OF UTILITIES GENERALLY,
THE BURDEN IS UPON THE COMMISSION TO PROVE THAT THE FEES DEMANDED ARE
NO MORE THAN NECESSARY TO DEFRAY THE EXPENSE OF REGULATION OR
INSPECTION.  GREAT NORTHERN RY. CO. V. WASHINGTON, 300 U.S. 154. 

UNDER THE PROPER CONSTRUCTION OF THE SHIPPING ACT OF 1916, AND THE
UTILITY ACT, THE COMMISSION HAS NO JURISDICTION OVER THE PETITIONER AND
CAN NOT COLLECT THE FEES DEMANDED. 

THE POWER OF CONGRESS UNDER THE CONSTITUTION TO AMEND AND EXTEND THE
PROVISIONS OF ACT 135, S.L. HAW.  1913, AND TO RATIFY AND CONFIRM THE
APPLICABILITY OF THE PUBLIC UTILITY ACT OF 1913, IS INDUBITABLE. 
FRANCE V. CONNOR, 161 U.S. 65, 72; MORMON CHURCH V. UNITED STATES, 136
U.S. 1; NATIONAL BANK V. YANKTON COUNTY, 101 U.S. 129. 

THE STATEMENTS MADE IN CONGRESS AT THE TIME OF THE AMENDMENT AND
RATIFICATION OF THE TERRITORIAL STATUTE, SHOW BEYOND DISPUTE THAT
CONGRESS INTENDED THE UTILITIES ACT OF 1913 TO APPLY TO ALL UTILITIES
OPERATING WITHIN THE TERRITORY. 

THE EXACTION OF TERRITORIAL UTILITY FEES APPROVED BY CONGRESS CAN NOT
IMPOSE A BURDEN ON INTERSTATE AND FOREIGN COMMERCE. 

THE ENACTMENT BY CONGRESS OF THE SHIPPING ACT OF 1916, DID NOT DIVEST
THE LOCAL COMMISSION OF ITS POWERS OF INVESTIGATION OR ITS DUTY TO
COLLECT THE FEES PROVIDED TO PERMIT SUCH INVESTIGATION. 

THE SHIPPING ACT SHOULD BE INTERPRETED AND APPLIED IN ANALOGY TO THE
INTERSTATE COMMERCE ACT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A HAWAIIAN CORPORATION, IS A COMMON CARRIER OF FREIGHT
AND PASSENGERS BY WATER BETWEEN DIFFERENT POINTS IN THE TERRITORY.  A
SUBSTANTIAL PART OF ITS GROSS INCOME IS DERIVED FROM TRANSPORTING
FREIGHT DESTINED FOR TRANS-SHIPMENT TO FOREIGN OR MAINLAND PORTS.  IN
1913 A STATUTE OF THE TERRITORY CREATED A PUBLIC UTILITIES COMMISSION,
PRESCRIBED ITS DUTIES AND LEVIED A UNIFORM SEMI-ANNUAL TAX -
DENOMINATED A FEE  FN1  - UPON ALL PUBLIC UTILITIES DOING BUSINESS IN
THE TERRITORY, PARTIALLY TO DEFRAY THE COMMISSION'S EXPENSES. 
PETITIONER PAID THE TAX UNTIL 1923, WHEN IT REFUSED TO MAKE FURTHER
PAYMENTS, CONTENDING THE TAX COULD NOT VALIDLY BE APPLIED TO IT. IN
THIS SUIT, THE TERRITORY RECOVERED JUDGMENT IN THE TERRITORIAL COURT
FOR THE TAXES ASSESSED FOR THE YEARS 1923 TO 1930, INCLUSIVE.  THE
SUPREME COURT OF HAWAII AND THE CIRCUIT COURT OF APPEALS BOTH
AFFIRMED.  FN2 

THE HAWAIIAN "UTILITIES ACT OF 1913,"  FN3  UNDER WHICH THE
CHALLENGED TAXES HAVE BEEN LEVIED, INVESTED THE TERRITORIAL COMMISSION
WITH BROAD POWERS TO INVESTIGATE ALL PUBLIC UTILITIES DOING BUSINESS IN
THE TERRITORY, WITH REFERENCE TO THE SAFETY AND ACCOMMODATION OF THE
PUBLIC; SAFETY, WORKING HOURS AND WAGES OF EMPLOYEES; RATES AND FARES;
VALUATION; ISSUANCE OF SECURITIES; AMOUNT AND DISPOSITION OF INCOME;
BUSINESS RELATIONS WITH OTHERS; COMPLIANCE WITH TERRITORIAL AND FEDERAL
LAWS AND PROVISIONS OF FRANCHISES, CHARTERS, AND ARTICLES OF
ASSOCIATION; REGULATIONS, PRACTICES AND SERVICE; ACCIDENTS, IN
CONNECTION WITH UTILITY OPERATIONS, BELIEVED BY THE COMMISSION TO
REQUIRE INVESTIGATION AND "ALL MATTERS OF EVERY NATURE AFFECTING THE
RELATIONS AND TRANSACTIONS BETWEEN  ...  (SUCH UTILITIES) AND THE
PUBLIC, OR PERSONS, OR CORPORATIONS." 

THIS TERRITORIAL COMMISSION WAS EMPOWERED TO MAKE ITS INVESTIGATIONS
"NOTWITHSTANDING THAT THE SAME MAY BE WITHIN THE JURISDICTION OF THE
INTERSTATE COMMERCE COMMISSION, OR WITHIN THE JURISDICTION OF ANY COURT
OR OTHER BODY, AND WHEN AFTER SUCH EXAMINATION THE (TERRITORIAL)
COMMISSION SHALL BE OF THE OPINION THAT THE CIRCUMSTANCES WARRANT, IT
SHALL BE ITS DUTY TO EFFECT THE NECESSARY RELIEF OR REMEDY BY THE
INSTITUTION AND PROSECUTION OF APPROPRIATE PROCEEDINGS OR OTHERWISE
BEFORE THE INTERSTATE COMMERCE COMMISSION, OR SUCH COURT, OR OTHER
BODY, IN ITS OWN NAME OR THE NAME OF THE TERRITORY,  ...  " 

THE TAXES IN QUESTION ACCRUED UNDER SEC. 17 OF THE ACT OF 1913,
PROVIDING THAT "THERE SHALL ...  BE PAID TO THE COMMISSION IN EACH OF
THE MONTHS OF MARCH AND SEPTEMBER IN EACH YEAR BY EACH PUBLIC UTILITY
WHICH IS SUBJECT TO INVESTIGATION BY THE COMMISSION A FEE WHICH WILL BE
EQUAL TO ONE-TWENTIETH OF ONE PER CENTUM OF THE GROSS INCOME FROM THE
PUBLIC UTILITY BUSINESS CARRIED ON BY SUCH PUBLIC UTILITY IN THE
TERRITORY DURING THE PRECEDING YEAR, PLUS ONE-FIFTIETH OF ONE PER
CENTUM OF THE PAR VALUE OF THE STOCK ISSUED BY SUCH PUBLIC UTILITY AND
OUTSTANDING ON DECEMBER 31 OF THE PRECEDING YEAR,  ...  "  AFTER
COLLECTION, THE TAXES "SHALL BE DEPOSITED IN THE TREASURY OF THE
TERRITORY TO THE CREDIT OF A SPECIAL FUND TO BE CALLED THE 'PUBLIC
UTILITIES COMMISSION FUND'" TO BE USED - WITH ANY APPROPRIATIONS MADE
AVAILABLE BY THE TERRITORIAL LEGISLATURE - TO PAY NECESSARY EXPENSES OF
THE COMMISSION IN THE PERFORMANCE OF ITS DUTIES UNDER THE ACT. 

THE ORGANIC ACT GRANTING LEGISLATIVE POWER TO THE TERRITORIAL
GOVERNMENT OF HAWAII PROVIDES THAT "THE LEGISLATURE SHALL NOT GRANT TO
ANY CORPORATION, ASSOCIATION, OR INDIVIDUAL ANY SPECIAL OR EXCLUSIVE
PRIVILEGE, IMMUNITY, OR FRANCHISE WITHOUT THE APPROVAL OF CONGRESS; ...
"  FN4 PURSUANT TO THE ORGANIC ACT, AND PRIOR TO THE EFFECTIVE DATE OF
THE UTILITIES ACT OF 1913, THE TERRITORIAL LEGISLATURE PASSED ACT 135
S.L. HAW.  1913 - TO TAKE EFFECT UPON THE APPROVAL BY CONGRESS -
PROVIDING THAT ALL PUBLIC UTILITIES PREVIOUSLY GRANTED FRANCHISES
SHOULD "BE SUBJECT AS TO REASONABLENESS OF RATES, PRICES, AND CHARGES
AND IN ALL OTHER RESPECTS TO THE PROVISIONS OF ...  (THE UTILITIES ACT
OF 1913) AND ALL AMENDMENTS THEREOF FOR THE REGULATION OF PUBLIC
UTILITIES IN SAID TERRITORY; ...  "  MARCH 28, 1916,  FN5  CONGRESS
EXPRESSLY RATIFIED, APPROVED AND CONFIRMED THIS HAWAIIAN ACT 135. 

ACT 135 AS ENACTED BY THE TERRITORY APPLIED ONLY TO HAWAIIAN
UTILITIES SPECIALLY DESCRIBED IN THE ACT.  HOWEVER, CONGRESS IN
RATIFYING AND APPROVING, BROADENED THE ACT BY AMENDMENT SO AS TO
INCLUDE NOT ONLY THE DESCRIBED UTILITIES BUT "ALL PUBLIC UTILITIES AND
PUBLIC-UTILITIES COMPANIES ORGANIZED OR OPERATING WITHIN THE TERRITORY
OF HAWAII."  BY FURTHER AMENDMENT CONGRESS PROVIDED THAT NOTHING IN ACT
135 SHOULD "LIMIT THE JURISDICTION OR POWERS OF THE INTERSTATE COMMERCE
COMMISSION" AND THAT ALL ACTIONS OF THE HAWAIIAN PUBLIC UTILITY
COMMISSION SHOULD "BE SUBJECT TO REVIEW BY THE COURTS OF THE  ...
TERRITORY." 

SEPTEMBER 7, 1916, CONGRESS ENACTED THE "SHIPPING ACT OF 1916."  FN6
FOR THE PURPOSES OF THE SHIPPING ACT, "THE TERM 'COMMON CARRIER BY
WATER IN INTERSTATE COMMERCE'" WAS GIVEN A STATUTORY DEFINITION TO
INCLUDE "A COMMON CARRIER  ...  BY WATER OF PASSENGERS OR PROPERTY  ...
ON REGULAR ROUTES FROM PORT TO PORT BETWEEN  ...  " PLACES IN THE SAME
"TERRITORY, DISTRICT OR POSSESSION."  THIS ACT CREATED THE UNITED
STATES SHIPPING BOARD, WITH BROAD POWERS TO INVESTIGATE AND SUPERVISE
CARRIERS BY WATER IN FOREIGN AND INTERSTATE COMMERCE AS DEFINED
THEREIN. 

WE ACCEPT THE CONCLUSION OF THE SUPREME COURT OF HAWAII THAT
PETITIONER IS A PUBLIC UTILITY AS DEFINED BY THE HAWAIIAN ACT.  FN7
HOWEVER, PETITIONER CONTENDS THAT THE TERRITORY CANNOT VALIDLY APPLY
THIS TAX TO IT.  WE HAVE EXAMINED ALL OF THE GROUNDS UPON WHICH THIS
CONTENTION RESTS.  NONE IS SUFFICIENT TO REMOVE PETITIONER FROM THE
OPERATION OF THE UTILITIES ACT OF 1913 AS APPLIED HERE. 

FIRST.  PETITIONER CONTENDS THAT THE PASSAGE OF THE SHIPPING ACT BY
CONGRESS COMPLETELY OUSTED THE TERRITORIAL COMMISSION OF ALL
JURISDICTION OVER IT IN ANY RESPECT, OR FOR ANY PURPOSE, AND THUS
WITHDREW THE COMMISSION'S POWER TO COLLECT THE FEES IN QUESTION. 

THE SUPREME COURT OF HAWAII HELD IN THIS CASE, AS HERETOFORE,  FN8
THAT THE SHIPPING ACT DID DEPRIVE THE TERRITORIAL COMMISSION OF
AUTHORITY, UNDER THE ACT OF 1913, TO REGULATE BY ITS OWN ORDER THE
RATES OF THIS PETITIONER.  IN THE PRESENT CASE, HOWEVER, THAT COURT
CONCLUDED THAT THE SHIPPING ACT DID NOT WITHDRAW THE TERRITORIAL
COMMISSION'S POWER TO INVESTIGATE WATER CARRIERS - SUCH AS PETITIONER -
AS TO RATES AND OTHER MATTERS, EITHER FOR THE EXERCISE OF ITS OWN
PERMITTED SUPERVISORY POWERS OR FOR PRESENTATION OF THE PUBLIC'S CASE
BEFORE APPROPRIATE GOVERNMENTAL BODIES.  FN9  THE TERRITORIAL ACT OF
1913 - TO WHICH CONGRESS IN 1916 SUBJECTED ALL UTILITIES DOING BUSINESS
IN HAWAII - GAVE THE TERRITORIAL COMMISSION JURISDICTION OVER MANY
MATTERS OTHER THAN RATE REGULATION.  IN GENERAL, THE COMMISSION WAS
EMPOWERED TO SUPERVISE AND REGULATE LOCAL PROPERTIES AND ACTIVITIES OF
UTILITIES AND TO PROTECT THE PUBLIC INTEREST IN RELATION TO RATES,
OPERATIONS, AND MANY OTHER PHASES OF THE UTILITY BUSINESS.  WHILE, IN
SOME INSTANCES, THE COMMISSION WAS POWERLESS TO ENTER ANY FINAL ORDER,
NEVERTHELESS ITS AUTHORITY TO INVESTIGATE AND TO APPEAR BEFORE
APPROPRIATE GOVERNMENTAL AGENCIES WAS DESIGNED AS A PART OF A GENERAL
PLAN TO SAFEGUARD THE PUBLIC INTEREST.  THE SHIPPING ACT INVESTED THE
SHIPPING BOARD WITH AUTHORITY OVER SOME OF THESE MATTERS.  BUT NO
LANGUAGE IN THAT ACT INDICATES THAT CONGRESS INTENDED TO WITHDRAW ALL
OF THE TERRITORIAL COMMISSION'S JURISDICTION OVER TERRITORIAL WATER
CARRIERS.  WHILE CONGRESS HAD COMPLETE POWER TO REPEAL THE ENTIRE
TERRITORIAL PUBLIC UTILITIES ACT, "AN INTENTION TO SUPERSEDE THE LOCAL
LAW (OF A TERRITORY) IS NOT TO BE PRESUMED, UNLESS CLEARLY EXPRESSED." 
N10 PETITIONER OWNS, CONTROLS, OPERATES AND MANAGES NUMEROUS STEAM
VESSELS, WHARFS, DOCKS AND REAL AND PERSONAL PROPERTY USEFUL IN THE
TRANSPORTATION OF PASSENGERS AND FREIGHT BETWEEN THE VARIOUS PORTS AND
ISLANDS OF HAWAII.  PETITIONER'S GROSS INCOME BETWEEN THE YEARS 1922
AND 1929 FROM BUSINESS TRANSACTED IN THE TERRITORY AMOUNTED TO
APPROXIMATELY $18,000,000.  THIS TERRITORY IS LOCATED FAR FROM THE
MAINLAND OF THE UNITED STATES.  ONLY CLEAR AND EXPLICIT STATUTORY
LANGUAGE COULD JUSTIFY A HOLDING THAT CONGRESS INTENDED BY THE SHIPPING
ACT TO DEPRIVE THE TERRITORIAL GOVERNMENT OF ALL JURISDICTION OVER
ACTIVITIES SUCH AS PETITIONER'S, VITALLY AFFECTING THE TRADE, COMMERCE,
SAFETY AND WELFARE OF THE PEOPLE OF THE TERRITORY. 

WE AGREE WITH THE SUPREME COURT OF HAWAII THAT THE SHIPPING ACT OF
1916 DID NOT WHOLLY SUPERSEDE THE TERRITORIAL ACT OF 1913 AS APPLIED TO
WATER CARRIERS LIKE PETITIONER, AND DID NOT TAKE FROM THE TERRITORIAL
COMMISSION ITS POWER TO INVESTIGATE SUCH UTILITIES.  A VALID
LEGISLATIVE POWER NECESSARILY INCLUDES THE RIGHT TO PROVIDE FUNDS TO BE
EXPENDED IN ITS EXERCISE. 

SECOND.  PETITIONERS CONTEND, HOWEVER, THAT THE TAXES INVOLVED
CONSTITUTE A BURDEN ON INTERSTATE AND FOREIGN COMMERCE IN VIOLATION OF
THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  BUT HERE, CONGRESS,
BY ITS ACT OF 1916, SUBJECTED PETITIONER TO THE TERRITORIAL LAW UNDER
WHICH THESE VERY TAXES WERE LEVIED. 

UNDER THE CONSTITUTION, CONGRESS HAS THE POWER TO REGULATE INTERSTATE
COMMERCE.  FN11 THEREFORE, ASSUMING - BUT NOT DECIDING - THAT
PETITIONER IS ENGAGED IN INTERSTATE AND FOREIGN COMMERCE, CONGRESS HAS
EXERCISED ITS POWER IN THE PRESENT CASE BY PERMITTING THE TERRITORY TO
ACT UPON THIS COMMERCE BY THE IMPOSITION OF THE CONTESTED TAXES.  THE
IMPOSITION OF THESE TAXES UNDER AN ACT TO WHICH CONGRESS EXPRESSLY
SUBJECTED PETITIONER DOES NOT VIOLATE THE COMMERCE CLAUSE. 

CONGRESS HAD THE POWER TO SUBJECT PETITIONER TO THIS TAX BY VIRTUE OF
ITS AUTHORITY OVER THE TERRITORY, IN ADDITION TO ITS POWER UNDER THE
COMMERCE CLAUSE.  "CONGRESS MAY NOT ONLY ABROGATE LAWS OF THE
TERRITORIAL LEGISLATURES, BUT IT MAY ITSELF LEGISLATE DIRECTLY FOR THE
LOCAL GOVERNMENT.  IT MAY MAKE A VOID ACT OF THE TERRITORIAL
LEGISLATURE VALID, AND A VALID ACT VOID.  IN OTHER WORDS, IT HAS FULL
AND COMPLETE LEGISLATIVE AUTHORITY OVER THE PEOPLE OF THE TERRITORIES
AND ALL THE DEPARTMENTS OF THE TERRITORIAL GOVERNMENTS."  FN12 

THIRD.  PETITIONER CONTENDS THAT THE CHALLENGED TAX IS PROHIBITED BY
THE FIFTH AMENDMENT BECAUSE "NO INVESTIGATION, SUPERVISION, OR
REGULATION OF PETITIONER WAS IN FACT MADE BY THE COMMISSION." 

A GENERAL TAX DESIGNED TO EFFECTUATE A PLAN FOR CONTROL AND
SUPERVISION OF PUBLIC UTILITIES NEED NOT BE APPORTIONED AMONG THE
TAXPAYERS ACCORDING TO THE ACTUAL SERVICES PERFORMED DIRECTLY FOR
EACH.  SUCH A REQUIREMENT WOULD SERIOUSLY IMPAIR THE EFFECTIVE
APPLICATION AND OPERATION OF GENERAL TAX SYSTEMS.  SERVICES PERFORMED
BY THE HAWAIIAN PUBLIC UTILITIES COMMISSION WERE FOR THE BENEFIT OF THE
PUBLIC AS A WHOLE AND ARE NOT ANY THE LESS SERVICES BENEFICIAL TO
PETITIONER BECAUSE ITS BUSINESS HAS NOT BEEN GIVEN ANY SPECIAL
ASSISTANCE.  FN13  "A TAX IS NOT AN ASSESSMENT OF BENEFITS."  FN14 
THE JUDGMENT IS AFFIRMED. 

FN1  CF., NEW YORK V. LATROBE, 279 U.S. 421, 423. 

FN2  33 HAW.  890; 96 F.2D 412. 

FN3  ACT 89 S.L. HAW.  1913, AS AMENDED BY ACT 127, S.L. HAW.  1913,
C. 132, OF THE REVISED LAWS HAWAII, 1925, C. 261, REVISED LAWS HAWAII,
1935.    FN4  ACT OF CONG., APRIL 30, 1900, C. 339, SEC. 55, 31 STAT.
150; U.S.C., TITLE 48, SEC. 562. 

FN5  39 STAT. 38, C. 53. 

FN6  39 STAT. 728, C. 451, ACT OF SEPTEMBER 7, 1916. 

FN7  CF., WAIALUA AGRICULTURAL CO. V. CHRISTIAN, ANTE, P. 91. 

FN8  RE INTER-ISLAND STEAM NAVIGATION CO., 24 HAW.  136. 

FN9  SIMILARLY, MANY STATES HAVE AUTHORIZED UTILITY COMMISSIONS TO
MAKE INVESTIGATIONS AND TO INSTITUTE PROCEEDINGS BEFORE THE INTERSTATE
COMMERCE COMMISSION.  ALA. CODE (MICHILE), 1928, SEC. 9669; CRAWFORD &
MOSES DIG.  OF STATS. OF ARK. 1921, SEC. 1630; STRUCKMEYER, REVISED
CODE ARIZ. 1928, SEC. 691; GEN. LAWS OF CALIF., 1937(DEERING), SEC. 34;
CODE OF GA., 1933, SEC. 93-314; CODE OF IOWA, 1931, SECS. 7890, 7891;
REVISED STAT. OF KAN. ANN., 1923, SEC. 66-148; MD., 1 ANN. CODE -
BAGBY, P. 835, ART. 23, SEC. 384; 1 MASON'S MINN. STAT. (1927), SEC.
4660; REV. STATUTES OF MISSOURI (1929), SEC. 5187; CONS.  LAWS OF N.Y.
CAHILL (1930), C. 49, P. 1878; SEC. 59; (NORTH CAROLINA) CONS.  STAT. 
ANN. (1919), P. 464, SEC. 1075; NEW HAMPSHIRE PUBLIC LAWS, 1926, VOL.
II, P. 923, (22, 23); 2, OLSON, ORE.  LAWS OF 1920, P. 2374, SEC. 5872;
66 PURDON'S PENNA.  STAT., SEC. 552; (SOUTH DAKOTA) - COMPILED LAWS,
1929, VOL. II, P. 3264, SEC. 9577-8; (1935) WIS. STAT., SEC. 195.17. 

"IN ITS GENERAL SCOPE AND PURPOSE, AS WELL AS IN ITS TERMS, (THE
SHIPPING ACT)  ...  CLOSELY PARALLELS THE INTERSTATE COMMERCE ACT; AND
WE CANNOT ESCAPE THE CONCLUSION THAT CONGRESS INTENDED THAT THE TWO
ACTS, EACH IN ITS OWN FIELD, SHOULD HAVE LIKE INTERPRETATION,
APPLICATION AND EFFECT."  U.S. NAVIGATION CO. V. CUNARD S.S. CO., 284
U.S. 474, 481. 

FN10  FRANCE V. CONNOR, 161 U.S. 65, 72; SEE DAVIS V. BEASON, 133
U.S. 333, COPE V. COPE, 137 U.S. 682; CF., SAVAGE V. JONES, 225 U.S.
501, 533; GILVARY V. CUYAHOGA VALLEY RY. CO., 292 U.S. 57, 60 

FN11  FOR ILLUSTRATIONS OF THE EXTENT OF THIS POWER, SEE GIBBONS V.
OGDEN, 9 WHEAT.  1, 196; IN RE RAHRER, 140 U.S. 545; SECOND EMPLOYERS'
LIABILITY CASES, 223 U.S. 1; HOUSTON, E. & W.T. RY. CO. V. UNITED
STATES (SHREVEPORT CASE), 234 U.S. 342; CLARK DISTILLING CO. V. WESTERN
MARYLAND RY. CO., 242 U.S. 311; ALABAMA & V. RY. CO. V. JACKSON & E.
RY. CO., 271 U.S. 244, 250. 

FN12  MORMON CHURCH V. UNITED STATES, 136 U.S. 1, 43; CF., SERE V.
PITOT, 6 CRANCH 332; AMERICAN INS. CO. V. CANTER, 1 PET. 511; DOOR V.
UNITED STATES, 195 U.S. 138; CINCINNATI SOAP CO. V. UNITED STATES, 301
U.S. 308. 

FN13  CF. CLYDE MALLORY LINES V. ALABAMA, 296 U.S. 261, 266. 

FN14  CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495, 522. 
..END :










ARMSTRONG CO. V. NU-ENAMEL CORP., 305 U.S. 315 


NO. 51.  ARGUED NOVEMBER 7, 8, 1938.  - DECIDED DECEMBER 5, 1938.  - 95
F.2D 448, AFFIRMED. 


1.  A REGISTRANT UNDER THE TRADE MARK ACT OF MARCH 19, 1920 OF THE
NAME NU-ENAMEL, FOR ENAMELS AND KINDRED PRODUCTS, BROUGHT SUIT IN THE
FEDERAL DISTRICT COURT TO ENJOIN INFRINGEMENT BY A COMPETITOR WHO WAS
USING IN THE SALE OF ENAMELS THE NAME NU-BEAUTY ENAMEL.  THE BILL
ALLEGED, INTER ALIA, THAT IN THE TRADE THE NAME NU-ENAMEL HAD COME TO
MEAN THE PLAINTIFF AND ITS PRODUCTS EXCLUSIVELY; THAT THE MARK
DISTINGUISHED PLAINTIFF'S GOODS FROM OTHERS OF THE SAME CLASS; AND THAT
NU-BEAUTY ENAMEL WAS BEING PASSED OFF BY MERCHANTS AS THE PRODUCT OF
THE PLAINTIFF.  HELD: 

(1)  IT BEING CONCEDED BY THE ANSWER THAT THE NAME NU-ENAMEL HAD COME
TO MEAN PLAINTIFF AND ITS PRODUCTS, AND THAT IT DISTINGUISHED
PLAINTIFF'S GOODS FROM OTHERS OF THE SAME CLASS, NO EVIDENCE OR FINDING
WAS NEEDED TO ESTABLISH THESE FACTS.  P. 322. 

(2)  BY VIRTUE OF THE ADOPTION OF THE PROCEDURAL PROVISIONS OF THE
TRADE MARK ACT OF 1905 BY THE 1920 ACT, THE DISTRICT COURT AND THE
CIRCUIT COURTS OF APPEALS HAD ORIGINAL AND APPELLATE JURISDICTION,
RESPECTIVELY, OF SUITS AT LAW OR IN EQUITY RESPECTING TRADE MARKS
REGISTERED IN ACCORDANCE WITH THE PROVISIONS OF THE LATTER ACT AND
ARISING UNDER IT; AND THIS COURT WAS GIVEN JURISDICTION BY CERTIORARI
THE SAME AS IN PATENT CASES.  P. 323. 

(3)  THE ALLEGATION OF REGISTRATION UNDER THE 1920 ACT, UNLESS
PLAINLY UNSUBSTANTIAL, IS SUFFICIENT TO GIVE THE DISTRICT COURT
JURISDICTION OF THE MERITS.  P. 324. 

(4)  THE DISTRICT COURT HAVING PROPERLY ACQUIRED JURISDICTION OF THE
SUIT FOR INTERFERENCE WITH THE EXCLUSIVE RIGHT TO USE THE TRADE MARK,
THEN THOUGH THE ISSUE OF INFRINGEMENT FAIL BECAUSE THE TRADE MARK WAS
NOT REGISTRABLE, THE COURT STILL HAS JURISDICTION TO DETERMINE, ON
SUBSTANTIALLY THE SAME FACTS, THE ISSUE OF UNFAIR COMPETITION.  HURN V.
OURSLER, 289 U.S. 238.  P. 324. 

(5)  AS APPLIED TO ENAMELS, THE MARK NU-ENAMEL IS DESCRIPTIVE, BUT
REGISTRABLE NEVERTHELESS UNDER PARAGRAPH (B) OF THE TRADE MARK ACT OF
1920.  P. 329. 

(6)  HAVING IN NU-ENAMEL A REGISTERED MARK WHICH HAD ACQUIRED A
SECONDARY MEANING AS INDICATING ITS PRODUCTS EXCLUSIVELY, PLAINTIFF WAS
ENTITLED TO PROTECTION AGAINST THE UNFAIR USE OF THE WORDS OF THE MARK
BY A COMPETITOR SEEKING TO PALM OFF ITS GOODS AS THOSE OF THE
PLAINTIFF, AND HAD A CAUSE OF ACTION AGAINST SUCH A ONE EITHER FOR
INFRINGEMENT OF THE MARK OR FOR UNFAIR COMPETITION.  P. 335. 

(7)  UPON THE RECORD OF THIS CASE, THE COMPETITOR'S USE OF THE NAME
NU-BEAUTY ENAMEL WAS UNFAIR AND INFRINGED THE PLAINTIFF'S TRADE MARK NU
ENAMEL.  P. 336. 

2.  THE FEDERAL TRADE MARK ACT OF 1920 DOES NOT VEST ANY NEW
SUBSTANTIVE RIGHTS BUT IT DOES CREATE REMEDIES IN THE FEDERAL COURTS
FOR PROTECTING THE REGISTRATIONS AND AUTHORIZES TRIPLE DAMAGES FOR
INFRINGEMENT.  P. 324. 

3.  TRADE MARKS REGISTERED UNDER THE 1920 ACT MAY BE ATTACKED
COLLATERALLY.  P. 322. 

4.  THE SIGNIFICANT DISTINCTION BETWEEN THE ACTS OF 1905 AND 1920 IS
THE OMISSION IN THE LATTER OF THE PROVISION IN THE EARLIER ACT MAKING
THE REGISTRATION OF A TRADE-MARK PRIMA FACIE EVIDENCE OF OWNERSHIP.  P.
323. 

5.  THE REMEDIES AFFORDED REGISTRANTS UNDER THE 1920 ACT ARE
AVAILABLE ONLY TO "OWNERS."  OWNERSHIP MUST BE ESTABLISHED BY PROOF;
ACTUAL AND EXCLUSIVE USE, SHORT OF A SECONDARY MEANING, IS
INSUFFICIENT.  P. 335. 

6.  SECTION 1(B) OF THE TRADE MARK ACT OF 1920 PERMITS REGISTRATION
OF MARKS USED FOR ONE YEAR IN INTERSTATE COMMERCE WHICH WERE NOT
REGISTRABLE UNDER THE ACT OF 1905, "EXCEPT THOSE SPECIFIED IN
PARAGRAPHS (A) AND (B) OF SECTION 5" OF THE ACT OF 1905.  HELD THAT THE
PHRASE "EXCEPT THOSE SPECIFIED IN PARAGRAPHS (A) AND (B) OF SECTION 5"
DOES NOT APPLY TO THE PROVISOS OF PARAGRAPH (B) OTHER THAN THE FIRST
THEREOF.  P. 331. 

THIS HAS BEEN THE CONSTRUCTION GIVEN THE SUBSECTION BY THE PATENT
OFFICE.  MOREOVER, TO CONSTRUE IT AS BARRING NAMES, DESCRIPTIVE MARKS,
AND MERELY GEOGRAPHICAL TERMS, WOULD MAKE THE SUBSECTION USELESS. 

7.  THE LEGISLATIVE HISTORY AND ADMINISTRATIVE INTERPRETATION OF A
STATUTE HAVE WEIGHT WHEN CHOICE IS NICELY BALANCED.  P. 330. 

8.  A CONSTRUCTION OF A STATUTE WHICH PRESERVES ITS USEFULNESS IS TO
BE PREFERRED TO ANOTHER WHICH DOES NOT.  P. 333. 

ARMSTRONG PAINT & VARNISH WORKS V. NUENAMEL CORP. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 580, TO REVIEW THE REVERSAL OF A DECREE
DISMISSING FOR WANT OF EQUITY A BILL FOR AN INJUNCTION AND OTHER
RELIEF. 

THE DECISION THAT "NU-ENAMEL" IS A VALID TRADE-MARK IS CONTRARY TO
THE TRADE-MARK LAWS OF THE UNITED STATES, UNDER WHICH THIS SUIT WAS
BROUGHT, AND IN CONFLICT WITH APPLICABLE DECISIONS OF THIS COURT AND OF
OTHER CIRCUIT COURTS OF APPEALS. 

DESCRIPTIVE WORDS ARE NOT VALID AS TRADE-MARKS UNDER THE TRADE-MARK
LAWS OF THE UNITED STATES.  TRADE-MARK ACT, 15 U.S.C. SECS. 85, PAR.
(B), 121; IN RE CHAS. R. LONG, JR. CO., 280 F. 975, 976; STANDARD PAINT
V. TRINIDAD, 220 U.S. 446; CANAL V. CLARK, 13 WALL.  311; ELGIN WATCH
V. ILLINOIS WATCH, 179 U.S. 665, 673; RICHMOND REMEDIES V. DR. MILES
MEDICAL CO., 16 F.2D 598, 601; KELLOGG CO. V. NATIONAL BISCUIT CO., 71
F.2D 662, 666; CHARLES BROADWAY ROUSS, INC. V. WINCHESTER CO., 300 F.
706, 712; ROGERS ON "GOOD WILL, TRADE-MARKS AND UNFAIR TRADINGS," (1914
ED. REPRINTED 1919), 76. 

THAT A DESCRIPTIVE WORD OR TERM HAS ACQUIRED A SECONDARY MEANING DOES
NOT RENDER IT CAPABLE OF BEING APPROPRIATED AS A VALID TRADE-MARK UNDER
THE TRADE-MARK LAWS OF THE UNITED STATES.  KAY & ESS CO. V.
COMMISSIONER OF PATENTS, 92 F.2D 552, 554; IN RE CANADA DRY GINGERALE,
INC., 86 F.2D 830, 832, 833; SPEAKER V. SHALER, 86 F.2D 985, 987;
BARBER V. OVERHEAD DOOR CORP., 65 F.2D 147; BARTON V. REX-OIL CO., 2
F.2D 402; HERCULES POWDER V. NEWTON, 266 F. 169; VACUUM OIL V. CLIMAX
REFINING, 120 F. 254. 

THAT "NU-ENAMEL" MAY HAVE ACQUIRED A SECONDARY MEANING DOES NOT
PREVENT OTHERS FROM USING SUCH WORDS IN THEIR PRIMARY DESCRIPTIVE SENSE
AS "NU-BEAUTY" WAS USED BY THE PETITIONER IN CONNECTION WITH THE
PRODUCT KNOWN AS ENAMEL.  WARNER & CO. V. LILLY & CO., 265 U.S. 526,
528; PEPSI-COLA V. KRAUSE BOTTLING CO., 92 F.2D 272, 274; HYGRADE FOOD
PRODUCTS CORP. V. W.H.D. LEE MERCANTILE CO., 46 F.2D 771, 772; FAWCETT
PUBLICATIONS V. POPULAR MECHANICS, 80 F.2D 194, 197; O'CEDAR CORP. V.
F.W. WOOLWORTH CO., 66 F.2D 363, 366. 

THERE WAS NO ISSUE OF UNFAIR COMPETITION AND THE DISTRICT COURT HAD
NO JURISDICTION ON THE GROUND OF UNFAIR COMPETITION. 

THE BILL OF COMPLAINT CONTAINS NO ALLEGATIONS OF FACTS CONSTITUTING
UNFAIR COMPETITION, NOR DOES IT PRAY FOR RELIEF AGAINST UNFAIR
COMPETITION.  GARRETT V. LOUISVILLE & N.R. CO., 235 U.S. 308, 313;
CROCKET V. LEE, 7 WHEAT.  522, 527. 

THERE WAS NO DIVERSITY OF CITIZENSHIP, AND, THEREFORE, NO FEDERAL
JURISDICTION.  NU-ENAMEL CORP. V. ARMSTRONG, 81 F.2D 1; ATKINS V.
GORDAN, 86 F.2D 595; LESCHEN ROPE CO. V. BRODERICK CO., 201 U.S. 166,
172; HURN V. OURSLER, 289 U.S. 238, 248; VAN CAMP SEA FOOD CO. V. COHN
HOPKINS, 56 F.2D 797, 799; SANDERS V. PAUL, 74 F.2D 399, 405. 

"NU-ENAMEL" IS NOT INFRINGED BY "NU-BEAUTY," OR "NEW BEAUTY" AS USED
BY PETITIONER IN CONNECTION WITH AND ON THE PRODUCT KNOWN AS ENAMEL. 
ELLIOTT VARNISH CO. V. SEARS, ROEBUCK CO., 232 F. 588, 591. 

THERE IS AN EXACT ANALOGY BETWEEN THE GENERAL PURPOSES OF THE ACT OF
1920 AUTHORIZING THE REGISTRATION OF MARKS USED AS TRADE-MARKS FOR ONE
YEAR AND THE TEN-YEAR PROVISO OF THE 1905 ACT (15 U.S.C. SEC. 85) WHICH
AUTHORIZES THE REGISTRATION OF MARKS USED AS TRADE-MARKS FOR TEN YEARS
PRIOR TO OCT. 20, 1905. 

THE "B" REGISTER OF THE 1920 ACT, LIKE THE TEN-YEAR PROVISO, IS
DESIGNED TO AFFORD REGISTRATION TO MARKS ACTUALLY USED AS TRADE-MARKS
ALTHOUGH THEY MAY BE DESCRIPTIVE, GEOGRAPHICAL OR PERSONAL NAMES. 
THADDEUS DAVIDS CO. V. DAVIDS, 233 U.S. 461, 468, 469. 

THE NU-ENAMEL MARK NOW BEFORE THE COURT IS NOT ONLY REGISTERED UNDER
THE 1920 ACT, BUT MEETS ALL THE TESTS PRESCRIBED BY THE STATUTE AND
IMPOSED IN PATENT OFFICE PRACTICE.  THE RECORD SHOWS THAT IT IS
SUSCEPTIBLE OF TRADE-MARK USE; THAT IT HAS ACTUALLY BEEN SO USED; IS
REGARDED EVEN BY PETITIONER AS A TRADE-MARK; AND THAT THE TRADE-MARK
SIGNIFICANCE OF THE WORD NU-ENAMEL IS AN IDENTIFICATION OF RESPONDENT
AND ITS GOODS IS FULLY RECOGNIZED BY THE PUBLIC.  THESE BEING THE
FACTS, THE MARK WAS CLEARLY REGISTRABLE UNDER THE 1920 ACT.  BEING SO
REGISTERED, IT IS ENTITLED TO ALL THE PROTECTION AFFORDED BY THAT ACT,
INCLUDING, OF COURSE, THE RIGHT OF ACCESS TO THE FEDERAL COURTS IN
CASES INVOLVING IT. 

THE ONLY PREREQUISITE FOR FEDERAL JURISDICTION UNDER EITHER ACT IS
REGISTRATION, AND THE DISTRICT COURTS HAVE RECOGNIZED THEIR AUTHORITY
TO ACT ON THAT GROUND ALONE.  RECAMIER V. HARRIET HUBBARD AYER, INC.,
59 F.2D 802. 

WHEN BY VIRTUE OF THE REGISTRATION, THE FEDERAL COURTS HAVE AUTHORITY
TO ACT, THEY HAVE AUTHORITY TO DEAL FULLY WITH ALL ASPECTS OF THE
CASE.  VOGUE CO. V. VOGUE HAT CO., 12 F.2D 991, 992. 

IT IS OF NO IMPORTANCE WHETHER THE ACTS COMPLAINED OF IN THIS CASE
ARE CALLED TRADE-MARK INFRINGEMENT OR UNFAIR COMPETITION.  THEIR
CHARACTERIZATION IS MERELY EPITHETICAL.  THE ACT IS THE SAME.  BUT EVEN
IF IT SHOULD BE HELD THAT RESPONDENTS' REGISTRATION OF NU-ENAMEL IS
INVALID, STILL THE DISTRICT COURT HAD JURISDICTION TO RESTRAIN THE USE
OF NU-BEAUTY ENAMEL WHICH RESULTS IN THE PASSING OFF OF PETITIONER'S
GOODS AS RESPONDENTS'.  WATERMAN CO. V. GORDON, 72 F.2D 272, 273; HURN
V. OURSLER, 289 U.S. 238, 246. 

PETITIONER'S INFRINGEMENT IS ESTABLISHED BY THE EVIDENCE. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE NU-ENAMEL CORPORATION OF ILLINOIS FILED ITS BILL OF COMPLAINT IN
A DISTRICT COURT OF THE UNITED STATES IN ILLINOIS TO ENJOIN THE
ARMSTRONG PAINT AND VARNISH WORKS, A CORPORATION OF THE SAME STATE,
FROM USING IN THE SALE OF PAINTS, VARNISHES AND SIMILAR GOODS THE WORDS
"NU-BEAUTY ENAMEL" OR ANY NAME INCLUDING THE WORDS "NU-ENAMEL" OR OTHER
COLORABLE IMITATION OF PLAINTIFF'S REGISTERED TRADE-MARK NU-ENAMEL OR
OTHERWISE INFRINGING IT; TO REQUIRE AN ACCOUNTING OF PROFITS, AND TO
RECOVER TREBLE DAMAGES.  PENDING THE LITIGATION, THE PLAINTIFF SOLD ITS
ASSETS TO THE OTHER RESPONDENT, NU-ENAMEL CORPORATION OF DELAWARE, BUT
CONTINUED ITS OWN CORPORATE EXISTENCE.  THE PURCHASER WAS PERMITTED TO
INTERVENE. 

THE BILL SHOWED THE REGISTRATION BY THE PLAINTIFF OF NU-ENAMEL UNDER
THE ACT OF MARCH 19, 1920, TRADE-MARK 308,024, FOR MIXED PAINTS,
VARNISHES, PAINT ENAMELS, PREPARED SHELLACS, STAINS, LACQUERS, LIQUID
CREAM FURNITURE POLISHES AND COLORS GROUND IN OIL.  IT SET OUT THAT THE
NAME "NU-ENAMEL" THROUGH WIDE USE BY PLAINTIFF HAD COME TO MEAN
"PLAINTIFF AND PLAINTIFF'S PRODUCTS ONLY" AND THE "WORD 'NU-ENAMEL' IS
A MARK BY WHICH THE GOODS OF THE PLAINTIFF ARE DISTINGUISHED FROM OTHER
GOODS OF THE SAME CLASS."  THERE WERE FURTHER ALLEGATIONS THAT
DEFENDANT HAD ADOPTED THE NAME "NU-BEAUTY ENAMEL" WITH FULL KNOWLEDGE
OF PRIOR AND EXTENSIVE USE BY PLAINTIFF OF "NU-ENAMEL"; THAT AS A
RESULT OF DEFENDANT'S USE OF THE MARK "NU-BEAUTY ENAMEL," MERCHANTS
PASSED OFF DEFENDANT'S PRODUCTS FOR PLAINTIFF'S, AND THAT THE PRODUCTS
OF BOTH MANUFACTURERS WERE SOLD IN INTERSTATE COMMERCE.  AN EXHIBIT
SHOWED THAT PLAINTIFF USED ITS MARK WITH THIS SLOGAN PRINTED ABOVE IT:
"THE COAT OF ENDURING BEAUTY." 

DEFENDANT ADMITTED "THAT THE NAME 'NU-ENAMEL' HAS COME TO MEAN AND IS
UNDERSTOOD TO MEAN, THROUGHOUT THE UNITED STATES, INCLUDING THE STATE
OF ILLINOIS AND THE CITY OF CHICAGO, THE PLAINTIFF AND PLAINTIFF'S
PRODUCTS ONLY, AND THE WORD 'NU-ENAMEL' IS A MARK BY WHICH THE GOODS OF
THE PLAINTIFF ARE DISTINGUISHED FROM OTHER GOODS OF THE SAME CLASS";
DENIED THE VALIDITY, BUT NOT THE FACT OR EXTENT OF THE COVERAGE, OF THE
REGISTRATION; ASSERTED "NU-ENAMEL" WAS A DESCRIPTIVE AND GENERIC TERM
AND THAT IT HAD ADOPTED "NU-BEAUTY" IN CONNECTION WITH ENAMEL AND
KINDRED PRODUCTS BEFORE IT HEARD OF THE TRADE-MARK OR TRADE NAME "NU
ENAMEL."  DEFENDANT ANSWERED SPECIFICALLY THAT IT MARKETED ONLY ENAMELS
UNDER THE DESIGNATION "NU-BEAUTY ENAMEL" AND THAT IT DID NOT MARKET
PAINTS AND VARNISHES UNDER THIS NAME.  THE JURISDICTION OF THE COURT
OVER THE SUBJECT MATTER WAS DENIED. 

THE DISTRICT COURT MADE THE FOLLOWING MATERIAL FINDINGS OF FACT: 

"1.  PLAINTIFF AND DEFENDANT AT THE TIME OF THE FILING OF THE BILL OF
COMPLAINT HEREIN WERE AND ARE NOW BOTH CITIZENS OF THE STATE OF
ILLINOIS.  THE INTERVENER, NU-ENAMEL CORPORATION, IS A CORPORATION OF
THE STATE OF DELAWARE. 

"2.  'NU' IN 'NU-ENAMEL', APPEARING ON PLAINTIFF'S LABEL, IS A
PHONETIC SPELLING OR MISSPELLING OF THE ENGLISH WORD 'NEW' AND MEANS
'NEW.' 

"3.  'ENAMEL' IS A COMMON ENGLISH WORD DESCRIBING A PAINT WHICH FLOWS
OUT TO A SMOOTH COAT WHEN APPLIED AND WHICH USUALLY DRIES WITH A GLOSSY
APPEARANCE, AND HAS LONG BEEN KNOWN AS SUCH IN THE PAINT INDUSTRY AND
TO THE PUBLIC IN GENERAL. 

"4.  'NU-ENAMEL' USED IN CONNECTION WITH PAINT OR ENAMEL SOLD BY
PLAINTIFF MEANS 'NEW ENAMEL' AND IS A COMMON AND GENERIC TERM
DESCRIPTIVE OF THE PRODUCT TO WHICH IT IS APPLIED AND OF ITS NEW OR
RECENT ORIGIN. 

"5.  'NU' WAS COMMONLY USED IN THE PAINT AND OTHER INDUSTRIES IN
COMBINATION WITH OTHER WORDS AS A MISSPELLING OR PHONETIC SPELLING OF
'NEW' TO DESIGNATE BRANDS AND KINDS OF ENAMEL, PAINT AND OTHER
COMMODITIES BEFORE PLAINTIFF AND ITS PREDECESSORS ADOPTED THE NAME 'NU
ENAMEL.'" 

IT DETERMINED THAT "NU-ENAMEL" WAS NOT A VALID TRADE-MARK UNDER THE
TRADE-MARK ACTS OR AT COMMON LAW AND, HAVING SO DETERMINED, REFUSED
JURISDICTION OF UNFAIR COMPETITION. 

THE CIRCUIT COURT OF APPEALS REVERSED.  FN1  THAT COURT HELD THE
TRADE-MARK NON-DESCRIPTIVE, VALID AND INFRINGED.  IT WAS OF THE OPINION
THAT THE MARK HAD ACQUIRED A SECONDARY MEANING.  IT FOUND THAT THE
PETITIONER'S CONDUCT ENABLED MERCHANTS TO PALM OFF THE ARMSTRONG
PRODUCT FOR "NU-ENAMEL" AND CONCLUDED THAT THE DISTRICT COURT HAD
JURISDICTION OF THE ISSUE OF UNFAIR COMPETITION.  WE GRANTED CERTIORARI
ON ACCOUNT OF THE IMPORTANCE IN TRADE-MARK LAW OF THE ISSUES OF THE
DESCRIPTIVE CHARACTER OF THE MARK AND THE EFFECT OF ITS ACQUIRED
MEANING UNDER THE TRADE-MARK ACT OF 1920. 

AS THE PETITIONER CONCEDES BY ANSWER THAT "NU-ENAMEL" HAS ACQUIRED
THE MEANING OF RESPONDENT AND RESPONDENT'S PRODUCTS ONLY AND IS A MARK
WHICH DISTINGUISHES RESPONDENT'S GOODS FROM OTHERS OF THE SAME CLASS,
NO EVIDENCE OR FINDING IS NEEDED TO ESTABLISH THAT FACT.  IT MAY BE
NOTED, ALSO, THAT THE ALLEGATION OF THE USE OF "NU-BEAUTY ENAMEL" BY
ARMSTRONG ON PRODUCTS OTHER THAN ENAMELS, FAILS OF PROOF.  ARMSTRONG
USES THIS MARK ON ENAMELS ONLY.  ON OTHER PRODUCTS, THERE IS THE MARK
"NU-BEAUTY," FOLLOWED BY SOME DESCRIPTIVE WORD, SUCH AS PAINT, VARNISH
OR BRUSH. 

FEDERAL TRADE-MARK ACT OF 1920.  THE REGISTRATION OF "NU-ENAMEL" DOES
NOT CREATE ANY SUBSTANTIVE RIGHTS IN THE REGISTRANT.  FN2  TRADE-MARKS
REGISTERED UNDER THE 1920 ACT MAY BE ATTACKED COLLATERALLY.  KELLOGG
CO. V. NATIONAL BISCUIT CO., 71 F.2D 662, 666. 

THE ACT FORBIDS THE UNAUTHORIZED USE OF THE REGISTERED MARK IN
FOREIGN AND INTERSTATE COMMERCE AND ADOPTS THE PROCEDURAL PROVISIONS OF
THE TRADE-MARK ACT OF 1905.  FN3  THROUGH THE INCLUSION OF THESE
PROCEDURAL SECTIONS THE LOWER FEDERAL COURTS ARE GIVEN ORIGINAL AND
APPELLATE JURISDICTION OF "ALL SUITS AT LAW OR IN EQUITY RESPECTING
TRADE-MARKS REGISTERED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT,
ARISING UNDER THE PRESENT ACT" AND THIS COURT WAS GIVEN JURISDICTION
FOR CERTIORARI "IN THE SAME MANNER AS PROVIDED FOR PATENT CASES."  FN4
MARK CASES IS APPLICABLE ALSO TO PROCEEDINGS UNDER THE 1920 ACT.  BY
SEC. 23 FORMER REMEDIES IN LAW AND EQUITY ARE LEFT AVAILABLE.  THE
SIGNIFICANT DISTINCTION BETWEEN THE TWO ACTS IS THE OMISSION IN THE
1920 ACT OF THE PROVISION OF SEC. 16 OF THE EARLIER ACT MAKING THE
REGISTRATION OF A TRADE-MARK PRIMA FACIE EVIDENCE OF OWNERSHIP. 

ON ITS FACE THE ACT SHOWS IT WAS ENACTED TO ENABLE AMERICAN AND
FOREIGN USERS OF TRADE-MARKS TO REGISTER THEM IN ACCORDANCE WITH THE
PROVISIONS OF THE CONVENTION FOR THE PROTECTION OF TRADE-MARKS AND
COMMERCIAL NAMES, SIGNED AT BUENOS AIRES IN 1910.  IN ADDITION SEC. 1,
PARAGRAPH (B), PROVIDES, WITHOUT LIMITATION TO THE EXPORT TRADE, FOR
THE REGISTRATION OF MARKS NOT REGISTERABLE UNDER SEC. 5 OF THE TRADE
MARK ACT OF 1905, AFTER ONE YEAR'S USE IN INTERSTATE OR FOREIGN
COMMERCE.  THIS ENABLES THE (B) MARKS TO BE REGISTERED ABROAD. 

WHILE THE ACT OF 1920 DOES NOT VEST ANY NEW SUBSTANTIVE RIGHTS, IT
DOES CREATE REMEDIES IN THE FEDERAL COURTS FOR PROTECTING THE
REGISTRATIONS AND AUTHORIZES TRIPLE DAMAGES FOR INFRINGEMENT.  FN5  AS
A CONSEQUENCE OF THESE REMEDIAL PROVISIONS, WHEN A SUIT IS BEGUN FOR
INFRINGEMENT, BOTTOMED UPON REGISTRATION UNDER THE 1920 ACT, THE
DISTRICT COURTS OF THE UNITED STATES HAVE JURISDICTION.  UNLESS PLAINLY
UNSUBSTANTIAL, THE ALLEGATION OF REGISTRATION UNDER THE ACT IS
SUFFICIENT TO GIVE JURISDICTION OF THE MERITS.  IN THIS CASE THE TRIAL
COURT CONCLUDED THAT THE INVALIDITY OF THE TRADE-MARK DIVESTED IT OF
JURISDICTION OVER UNFAIR COMPETITION.  THIS WAS ERRONEOUS.  FN6  ONCE
PROPERLY OBTAINED, JURISDICTION OF THE ONE CAUSE OF ACTION, THE ALLEGED
INFRINGEMENT OF THE TRADE-MARK, PERSISTS TO DEAL WITH ALL GROUNDS
SUPPORTING IT, INCLUDING UNFAIR COMPETITION WITH THE MARKED ARTICLE. 
FN7  THE CAUSE OF ACTION IS THE INTERFERENCE WITH THE EXCLUSIVE RIGHT
TO USE THE MARK "NU-ENAMEL."  IF IT IS A PROPERLY REGISTERED TRADE
MARK, A GROUND TO SUPPORT THE CAUSE OF ACTION IS VIOLATION OF THE TRADE
MARK ACT.  IF IT IS NOT A PROPERLY REGISTERED TRADE-MARK, THE GROUND IS
UNFAIR COMPETITION AT COMMON LAW.  THE FACTS SUPPORTING A SUIT FOR
INFRINGEMENT AND ONE FOR UNFAIR COMPETITION ARE SUBSTANTIALLY THE
SAME.  THEY CONSTITUTE AND MAKE PLAIN THE WRONG COMPLAINED OF, THE
VIOLATION OF THE RIGHT TO EXCLUSIVE USE.    IN THE OURSLER CASE THERE
WAS A VALID COPYRIGHT WHICH WAS HELD NOT INFRINGED.  HERE THE TRIAL
COURT DETERMINED THE TRADE-MARK WAS INVALID.  THE OURSLER CASE HELD
THAT WHERE THE CAUSES OF ACTION ARE DIFFERENT, THE DETERMINATION THAT
THE FEDERAL CAUSE FAILS CALLS FOR DISMISSAL.  FN8 BUT WHERE THERE IS
ONLY ONE CAUSE OF ACTION WE DO NOT CONSIDER THAT THE HOLDING OF THE
INVALIDITY FURNISHES ANY BASIS FOR A DISTINCTION BETWEEN THIS AND THE
OURSLER CASE.  REGISTRATION OF "NU-ENAMEL" FURNISHED A SUBSTANTIAL
GROUND FOR FEDERAL JURISDICTION.  THAT JURISDICTION SHOULD BE CONTINUED
TO DETERMINE, ON SUBSTANTIALLY THE SAME FACTS, THE ISSUE OF UNFAIR
COMPETITION.  FN9 

REGISTRATION OF DESCRIPTIVE MARK UNDER 1920 TRADE-MARK ACT.  EVEN
THOUGH UNDER THE FACTS ALLEGED AND THE ADMISSION THAT RESPONDENT'S MARK
HAS ACQUIRED A SECONDARY MEANING THE FEDERAL COURTS HAVE JURISDICTION
TO DETERMINE WHETHER PETITIONER IS CHARGEABLE WITH UNFAIR COMPETITION,
IT BECOMES NECESSARY TO DETERMINE WHETHER REGISTRATION OF "NU-ENAMEL"
IS PERMISSIBLE OR IMPERMISSIBLE UNDER THE ACT OF 1920 IN ORDER THAT IT
MAY BE KNOWN WHETHER SEC. 4, THE BASIS OF THE PRAYER IN THE BILL FOR
TRIPLE DAMAGES, IS APPLICABLE.  FN10  SECTION 1(B) OF THE 1920 ACT
PERMITS REGISTRATION OF THE MARKS USED FOR ONE YEAR IN INTERSTATE
COMMERCE WHICH WERE NOT REGISTERABLE UNDER THE ACT OF 1905 "EXCEPT
THOSE SPECIFIED IN PARAGRAPHS (A) AND (B) OF SECTION 5" OF THE ACT OF
1905.  THAT SECTION IS SET OUT BELOW.  FN11  THE POINT RAISED IS
WHETHER THE PHRASE "EXCEPT THOSE SPECIFIED IN PARAGRAPHS (A) AND (B) OF
BONOS MORES, UNDER (A) AND MARKS, INFRA DIGNITATEM, UNDER (B) BUT ALSO
THE FOLLOWING PROVISOS, PARTICULARLY THE ONE CONCERNED WITH DESCRIPTIVE
WORDS OR DEVICES. 

IT SEEMS CLEAR THAT THE MARK "NU-ENAMEL" IS DESCRIPTIVE OF A TYPE OF
PAINT LONG FAMILIAR TO MANUFACTURERS,  FN12  WITH THE ADDITION OF THE
ADJECTIVE NEW, PHONETICALLY SPELLED OR MISSPELLED.  OBVIOUSLY THIS
SLIGHT VARIATION FROM THE ORTHOGRAPHIC NORMAL IS NOT UNUSUAL.  NUMEROUS
ILLUSTRATIONS OF SUCH USE BY PAINT AND VARNISH MANUFACTURERS ARE GIVEN
BY PETITIONER IN ITS ANSWER.  THE TRADE-MARK IS REGISTERED BY THE NU
ENAMEL CORPORATION FOR A VARIETY OF PRODUCTS FROM ENAMELS THROUGH PAINT
BRUSHES TO GLUE, SOLDER AND TACK RAGS.  IT IS QUITE TRUE THAT THE MARK
IS NOT DESCRIPTIVE AS APPLIED TO MANY OF RESPONDENT'S PRODUCTS BUT THE
USE BY PETITIONER, THE ARMSTRONG COMPANY, OF WHICH THE NU-ENAMEL
CORPORATION COMPLAINS IS THE USE OF "NU-ENAMEL" OR "NU-BEAUTY ENAMEL." 
THIS USE, ARMSTRONG ANSWERS AND THE EVIDENCE SUPPORTS THE ASSERTION, IS
CONFINED TO THE ENAMELS.  WE MUST THEREFORE CONSIDER THE CASE AS THOUGH
THE ONLY PRODUCTS OF NU-ENAMEL CORPORATION WERE ENAMELS.  AS APPLIED TO
THEM IT IS DESCRIPTIVE. 

THAT THE MARK IS DESCRIPTIVE OF PAINT ENAMELS DOES NOT BAR IT FROM
REGISTRATION AS TO THEM UNDER THE 1920 ACT.  THIS HAS BEEN THE
CONSTRUCTION OF THE PATENT OFFICE.  FN13  TO CONSTRUE (B) OF THE 1920
ACT TO BAR NAMES, DESCRIPTIVE MARKS AND MERELY GEOGRAPHICAL TERMS WOULD
MAKE THE SUBSECTION USELESS.  THE OBVIOUS PURPOSE OF ITS INCLUSION WAS
TO WIDEN THE ELIGIBILITY OF MARKS.  A DICTUM HAS EXPRESSED  FN14  A
VIEW CONTRARY TO THAT OF THE PATENT OFFICE. 

THIS ADMINISTRATIVE INTERPRETATION, CONTEMPORARY WITH THE
LEGISLATION, AND THE LEGISLATIVE HISTORY HAVE WEIGHT "WHEN CHOICE IS
NICELY BALANCED."  FN15  WE CONSTRUE SEC. 1(B) OF THE 1920 ACT TO BE
APPLICABLE TO THE CATEGORIES EXPRESSED IN SEC. 5 OF THE ACT OF 1905
UNDER (A) AND (B) INCLUDING THE FIRST PROVISO BUT NOT TO INCLUDE THE
OTHER PROVISOS OF (B).  THIS CONCLUSION IS FORTIFIED BY THE ADDITION OF
THE PROVISO TO SEC. 1(B) OF THE 1920 ACT, RELATING TO IDENTICAL TRADE
MARKS.  THE PROVISO IN SEC. 5(B) OF THE 1905 ACT REFUSING REGISTRATION
TO IDENTICAL MARKS IN MUCH THE SAME LANGUAGE WAS CONSTRUED IN THADDEUS
DAVIDS CO. V. DAVIDS MFG. CO., 233 U.S. 461, AS NOT PERMITTING THE
REGISTRATION OF SUCH MARKS WHEN USED FOR TEN YEARS UNDER THE FOURTH,
NOW FIFTH, PROVISO OF THAT SECTION.  WE THINK THAT CONGRESS IN ADOPTING
THE CORRESPONDING PROVISO IN SUBSECTION (B) OF THE 1920 ACT, MUST BE
TAKEN TO HAVE ADOPTED THE ACCEPTED CONSTRUCTION OF THE SIMILAR PROVISO
OF THE 1905 ACT.  IF THE LANGUAGE OF THE 1920 ACT HAD BEEN INTENDED TO
EXCLUDE FROM REGISTRATION ALL THE CLASSES EXCLUDED BY THE PROVISOS OF
SEC. 5 OF THE 1905 ACT, IT WOULD HAVE BEEN UNNECESSARY TO INCLUDE THIS
PROVISO.  FN16 

THIS COURT HAS HAD SEVERAL OCCASIONS WITHIN THE LAST FEW YEARS TO
CONSTRUE STATUTES IN WHICH CONFLICTS BETWEEN REASONABLE INTENTION AND
LITERAL MEANING OCCURRED.  WE HAVE REFUSED TO NULLIFY STATUTES, HOWEVER
HARD OR UNEXPECTED THE PARTICULAR EFFECT, WHERE UNAMBIGUOUS LANGUAGE
CALLED FOR A LOGICAL AND SENSIBLE RESULT.  FN17  ANY OTHER COURSE WOULD
BE PROPERLY CONDEMNED AS JUDICIAL LEGISLATION.  HOWEVER, TO CONSTRUE
STATUTES SO AS TO AVOID RESULTS GLARINGLY ABSURD, HAS LONG BEEN A
JUDICIAL FUNCTION.  FN18  WHERE, AS HERE, THE LANGUAGE IS SUSCEPTIBLE
OF A CONSTRUCTION WHICH PRESERVES THE USEFULNESS OF THE SECTION, THE
JUDICIAL DUTY RESTS UPON THIS COURT TO GIVE EXPRESSION TO THE
INTENDMENT OF THE LAW. 

REMEDIES.  FN19  REGISTRATION UNDER THE 1920 ACT CONFERRED NO
SUBSTANTIVE RIGHTS IN THE REGISTERED MARK BUT IT DOES PERMIT SUITS IN
THE FEDERAL COURTS TO PROTECT RIGHTS OTHERWISE ACQUIRED IN THE MARKS. 
THE 1905 ACT, SEC. 1, AUTHORIZES THE "OWNER" TO OBTAIN REGISTRATION OF
ELIGIBLE TRADE-MARKS; SEC. 2 REQUIRES THE APPLICANT TO MAKE OATH THAT
HE "BELIEVES HIMSELF  ... TO BE THE OWNER OF THE TRADE-MARK"; SEC. 5
REFERS TO THE "OWNER OF THE MARK"; SEC. 16 THEN DECLARES "THAT THE
REGISTRATION OF A TRADE-MARK UNDER THE PROVISIONS OF THIS ACT SHALL BE
PRIMA FACIE EVIDENCE OF OWNERSHIP"; SEC. 23 RESERVES ALL REMEDIES AT
LAW OR IN EQUITY WHICH ANY PARTY AGGRIEVED BY THE WRONGFUL USE OF HIS
TRADE-MARK WOULD HAVE HAD WITHOUT THE ACT OF 1905. 

THE 1920 ACT OMITS THE QUOTED PORTION OF SEC. 16 AS TO THE EFFECT OF
REGISTRATION AS PRIMA FACIE EVIDENCE OF OWNERSHIP.  UNDER SEC. 1 THE
REGISTER INCLUDES ALL MARKS COMMUNICATED TO THE COMMISSIONER OF PATENTS
BY THE INTERNATIONAL BUREAUS PROVIDED FOR BY THE BUENOS AIRES
CONVENTION OF 1910 AND ALL OTHER MARKS NOT REGISTERABLE UNDER THE TRADE
MARK ACT OF 1905, WITH THE EXCEPTIONS DISCUSSED IN THE PRECEDING
ONE YEAR IN COMMERCE OTHER THAN INTRASTATE.  SECTION 4,  FN20  WHICH
PROTECTS THE TRADE-MARK, IS SUBSTANTIALLY THE SAME AS SEC. 16 OF THE
1905 ACT, EXCEPT FOR THE OMISSION OF THE PRIMA FACIE PRESUMPTION OF
OWNERSHIP.  IT IS THE OWNER WHO HAS THE RIGHTS OF ACTION UNDER THIS
ACT, UNAIDED BY ANY PRESUMPTION FROM REGISTRATION.  THE OWNER, ON THE
OTHER HAND, IS NOT LIMITED IN ANY WAY BY THE ACT, AS SEC. 23 OF THE ACT
OF 1905 IS MADE SPECIFICALLY APPLICABLE.  THIS SECTION PRESERVES THE
LEGAL AND EQUITABLE REMEDIES TO AN AGGRIEVED OWNER.  THE COMMITTEE ON
PATENTS IN THE SENATE WAS QUITE POSITIVE THAT THE EFFECT OF THE ACT ON
DOMESTIC RIGHTS WAS NIL.  FN21  THE REGISTRANT ACQUIRES BY THE
ACCEPTANCE OF HIS MARK UNDER THE 1920 ACT THE RIGHT TO PROCEED IN THE
FEDERAL COURTS AGAINST INFRINGERS AND TO RECOVER TRIPLE DAMAGES IF HE
CAN ESTABLISH HIS OWNERSHIP OF THE TRADE-MARK AT COMMON LAW. 

"NU-ENAMEL" IS DESCRIPTIVE OF THE ENAMELS IN ISSUE.  THE USE ON THE
NUMEROUS OTHER ARTICLES OF RESPONDENT'S MANUFACTURE, IN ITS
ADVERTISING, ON STORE WINDOW VALANCES, ON ELECTRIC AND OTHER DISPLAYS,
AND AS THE NAME OF MANY STORES AND THE SIGN OF SEVERAL THOUSAND
DEALERS, JUSTIFY PETITIONER'S CONCESSION THAT THE NAME MEANS RESPONDENT
AND RESPONDENT'S PRODUCTS ONLY AND THE WORD DISTINGUISHES ITS GOODS
FROM OTHERS OF THE SAME CLASS.  BUT A MARK WHICH IS DESCRIPTIVE IS NOT
A GOOD TRADE-MARK AT COMMON LAW.  FN22 

IT WAS SAID IN THADDEUS DAVIDS CO. V. DAVIDS MFG. CO. FN23  THAT
NAMES REGISTERED UNDER THE LAST PROVISO OF SEC. 5 OF THE 1905 ACT
BECAME TECHNICAL TRADE-MARKS UPON VALID REGISTRATION UNDER THAT ACT. 
ASSUMING THAT DESCRIPTIVE TERMS IN THIS RESPECT WOULD BE ANALOGOUS TO
PROPER NAMES, THERE ARE CLEAR DISTINCTIONS BETWEEN THE ACTS.  THE 1920
ACT DOES NOT DEFINE "TRADE-MARK" TO INCLUDE ANY MARK REGISTERED UNDER
ITS TERMS, AS DOES SEC. 29 OF THE 1905 ACT.  REMEDIES ARE AFFORDED
REGISTRANTS UNDER THE 1920 ACT BUT THESE REMEDIES ARE FOR "OWNERS," AND
ACTUAL AND EXCLUSIVE USE, SHORT OF A SECONDARY MEANING,  FN24  DOES NOT
QUALIFY A REGISTRANT UNDER THE 1920 ACT AS AN OWNER.  THAT OWNERSHIP
MUST BE ESTABLISHED BY PROOF.  FN25  UNLESS THIS OWNERSHIP IS
ESTABLISHED, NO RIGHTS OF ACTION UNDER THE 1920 ACT FOR INFRINGEMENT
EXIST.  HERE WE HAVE A SECONDARY MEANING TO THE DESCRIPTIVE TERM, "NU
ENAMEL."  THIS ESTABLISHES, ENTIRELY APART FROM ANY TRADE-MARK ACT, THE
COMMON LAW RIGHT OF THE NU-ENAMEL CORPORATION TO BE FREE FROM THE
COMPETITIVE USE OF THESE WORDS AS A TRADE-MARK OR TRADE NAME.  FN26  AS
WAS POINTED OUT IN THE DAVIDS CASE, IN CONSIDERING THE TEN-YEAR CLAUSE
OF THE 1905 ACT, THIS RIGHT OF FREEDOM DOES NOT CONFER A MONOPOLY ON
THE USE OF THE WORDS.  IT IS A MERE PROTECTION AGAINST THEIR UNFAIR USE
AS A TRADE-MARK OR TRADE NAME BY A COMPETITOR SEEKING TO PALM OFF HIS
PRODUCTS AS THOSE OF THE ORIGINAL USER OF THE TRADE NAME.  THIS RIGHT
TO PROTECTION FROM SUCH USE BELONGS TO THE USER OF A MARK WHICH HAS
ACQUIRED A SECONDARY MEANING.  HE IS, IN THIS SENSE, THE OWNER OF THE
MARK.  WE AGREE WITH THE CONCLUSION OF THE CIRCUIT COURT OF APPEALS
THAT INFRINGEMENT IS SHOWN. 

THE RIGHTS OF NU-ENAMEL CORPORATION TO BE FREE OF THE COMPETITIVE USE
OF "NU-ENAMEL" MAY BE VINDICATED, ALSO, THROUGH THE CHALLENGE OF UNFAIR
COMPETITION, AS SET OUT IN THE BILL.  THE REMEDY FOR UNFAIR COMPETITION
IS THAT GIVEN BY THE COMMON LAW.  THE RIGHT ARISES NOT FROM THE TRADE
MARK ACTS BUT FROM THE FACT THAT "NU-ENAMEL" HAS COME TO INDICATE THAT
THE GOODS IN CONNECTION WITH WHICH IT IS USED ARE THE GOODS
MANUFACTURED BY THE RESPONDENT.  WHEN A NAME IS ENDOWED WITH THIS
QUALITY, IT BECOMES A MARK, ENTITLED TO PROTECTION.  THE ESSENCE OF THE
WRONG FROM THE VIOLATION OF THIS RIGHT IS THE SALE OF THE GOODS OF ONE
MANUFACTURER FOR THOSE OF ANOTHER.  FN27 

THE QUESTIONS AS TO DAMAGES, PROFITS, AND THE FORM OF THE DECREE WILL
BE PASSED UPON MORE APPROPRIATELY BY THE TRIAL COURT.  THE DECREE OF
THE CIRCUIT COURT OF APPEALS REVERSING THE DECREE OF THE DISTRICT COURT
IS AFFIRMED AND THIS CAUSE IS REMANDED TO THE DISTRICT COURT WITH
DIRECTIONS TO PROCEED IN CONFORMITY WITH THE OPINION OF THIS COURT. 
AFFIRMED. 

FN1  95 F.2D 448. 

FN2  KELLOGG CO. V. NATIONAL BISCUIT CO., ANTE, P. 117, NOTE 3;
CHARLES BROADWAY ROUSS, INC. V. WINCHESTER CO., 300 F. 706, 713, 714;
SLEIGHT METALLIC INK CO. V. MARKS, 52 F.2D 664, ON RIGHTS IT IS "AS
THOUGH THERE HAD BEEN NO REGISTRATION," P. 665; NEVA-WET CORP. V. NEVER
WET PROCESSING CORP., 277 N.Y. 163; 13 N.E.2D 755, 759; SLAYMAKER LOCK
CO. V. REESE, 24 F.SUPP.  69, 72. 

FN3  TRADE-MARK ACT OF MARCH 19, 1920, C. 104, SEC. 6, 41 STAT. 535. 

FN4  SECS. 17 AND 18, FED. TRADE-MARK ACT OF FEBRUARY 20, 1905, 33
STAT. 728-29; SECS. 5 AND 6, ACT OF MARCH 3, 1891, 26 STAT. 827-28;
SEC. 240A OF THE JUDICIAL CODE CONFIRMS THIS JURISDICTION.  STREET &
SMITH V. ATLAS MFG. CO., 231 U.S. 348, 352.  CF. FORSYTH V. HAMMOND,
166 U.S. 506, 513. 

FN5  41 STAT. 534, SEC. 4.  "THAT ANY PERSON WHO SHALL WITHOUT THE
CONSENT OF THE OWNER THEREOF REPRODUCE, COUNTERFEIT, COPY, OR COLORABLY
IMITATE ANY TRADE-MARK ON THE REGISTER PROVIDED BY THIS ACT, AND SHALL
AFFIX THE SAME TO MERCHANDISE OF SUBSTANTIALLY THE SAME DESCRIPTIVE
PROPERTIES AS THOSE SET FORTH IN THE REGISTRATION, OR TO LABELS, SIGNS,
PRINTS, PACKAGES, WRAPPERS, OR RECEPTACLES INTENDED TO BE USED UPON OR
IN CONNECTION WITH THE SALE OF MERCHANDISE OF SUBSTANTIALLY THE SAME
DESCRIPTIVE PROPERTIES AS THOSE SET FORTH IN SUCH REGISTRATION, AND
SHALL USE, OR SHALL HAVE USED, SUCH REPRODUCTION, COUNTERFEIT, COPY, OR
COLORABLE IMITATION IN COMMERCE AMONG THE SEVERAL STATES, OR WITH A
FOREIGN NATION, OR WITH THE INDIAN TRIBES, SHALL BE LIABLE TO AN ACTION
FOR DAMAGES THEREFOR AT THE SUIT OF THE OWNER THEREOF; AND WHENEVER IN
ANY SUCH ACTION A VERDICT IS RENDERED FOR THE PLAINTIFF THE COURT MAY
ENTER JUDGMENT THEREIN FOR ANY SUM ABOVE THE AMOUNT FOUND BY THE
VERDICT AS THE ACTUAL DAMAGES, ACCORDING TO THE CIRCUMSTANCES OF THE
CASE, NOT EXCEEDING THREE TIMES THE AMOUNT OF SUCH VERDICT, TOGETHER
WITH THE COSTS." 

FN6  ALTHOUGH WE DETERMINE LATER THAT "NU-ENAMEL" IS REGISTERABLE
UNDER THE 1920 ACT, IT SEEMS APPROPRIATE TO DISCUSS JURISDICTION OF
UNFAIR COMPETITION ON A DIFFERENT ASSUMPTION SO THAT THE CONCLUSION OF
THE TRIAL COURT, CORRECTED BUT NOT DISCUSSED BY THE APPELLATE COURT,
WILL NOT BECOME A PRECEDENT ON ISSUES OF JURISDICTION IN TRADE-MARK
LAW.  CF. HURN V. OURSLER, 289 U.S. 238, 240. 

FN7  HURN V. OURSLER, 289 U.S. 238. 

FN8  HURN V. OURSLER, 289 U.S. 238, 248. 

FN9  TWO CASES CITED IN THE OURSLER OPINION DEAL WITH TRADE-MARKS:
LESCHEN ROPE CO. V. BRODERICK CO., 201 U.S. 166, AND ELGIN WATCH CO. V.
ILLINOIS WATCH CO., 179 U.S. 665.  THEY ARE THERE TREATED AS OUT OF
LINE WITH THE CASES HOLDING THAT FACTS SUPPORTING SUBSTANTIAL FEDERAL
AND NON-FEDERAL QUESTIONS GIVE JURISDICTION TO FEDERAL COURTS.  BOTH
STATE CATEGORICALLY THAT WITHOUT A LAWFULLY REGISTERED TRADE-MARK A
FEDERAL COURT LOSES JURISDICTION WHEN THE JURISDICTION DEPENDS ON THE
TRADE-MARK ACT.    WHERE DIVERSITY OF CITIZENSHIP EXISTS THE ISSUE DOES
NOT ARISE.  WARNER & CO. V. LILLY & CO., 265 U.S. 526.  WHILE THE
DIVERSITY IS NOT MADE PLAIN IN THE OPINION IT APPEARS IN THE RECORD. 
NO. 32, 1923 TERM, VOL. 13, TRANSCRIPTS OF RECORD 1689. 

FN10  SEE NOTE 5, SUPRA. 

WHEN THE TRIAL COURT CONCLUDED THE TRADE-MARK WAS NOT REGISTERABLE
UNDER THE 1920 ACT, IT DISMISSED THE BILL WHICH ALSO SOUGHT DAMAGES FOR
UNFAIR COMPETITION.  WHEN THE CIRCUIT COURT OF APPEALS CONCLUDED THE
TRADE-MARK WAS REGISTERABLE AS NON-DESCRIPTIVE, IT DECLARED THAT THE
ISSUE OF UNFAIR COMPETITION WAS COGNIZABLE IN THE TRIAL COURT.  IT DOES
NOT APPEAR WHETHER THE REASON FOR THIS HOLDING WAS BECAUSE THE MARK WAS
REGISTERABLE OR BECAUSE IT HAD ACQUIRED A SECONDARY MEANING, THROUGH
EXTENSIVE USE.  THE LOWER COURT DOES NOT CONSIDER WHETHER THE BILL
ALLEGES REGISTRATION UNDER THE 1920 ACT.  IF THE MARK IS NOT
DESCRIPTIVE IT IS REGISTERABLE UNDER THE 1905 ACT.  A MARK REGISTERABLE
UNDER THE 1905 ACT IS NOT REGISTERABLE UNDER THE 1920 ACT.  16 TRADE
MARK REPORTER, 93, 530.  THE LANGUAGE OF THE 1920 ACT PERMITS
REGISTRATION ONLY OF MARKS COMMUNICATED BY THE INTERNATIONAL BUREAU AND
THOSE NOT REGISTERABLE UNDER THE 1905 ACT. 

FN11  "NO MARK BY WHICH THE GOODS OF THE OWNER OF THE MARK MAY BE
DISTINGUISHED FROM OTHER GOODS OF THE SAME CLASS SHALL BE REFUSED
REGISTRATION AS A TRADE-MARK ON ACCOUNT OF THE NATURE OF SUCH MARK
UNLESS SUCH MARK - 

"(A)  CONSISTS OF OR COMPRISES IMMORAL OR SCANDALOUS MATTER. 

"(B)  CONSISTS OF OR COMPRISES THE FLAG OR COAT OF ARMS OR OTHER
INSIGNIA OF THE UNITED STATES OR ANY SIMULATION THEREOF, OR OF ANY
STATE OR MUNICIPALITY OR OF ANY FOREIGN NATION, OR OF ANY DESIGN OR
PICTURE THAT HAS BEEN OR MAY HEREAFTER BE ADOPTED BY ANY FRATERNAL
SOCIETY AS ITS EMBLEM, OR OF ANY NAME, DISTINGUISHING MARK, CHARACTER,
EMBLEM, COLORS, FLAG, OR BANNER ADOPTED BY ANY INSTITUTION,
ORGANIZATION, CLUB, OR SOCIETY WHICH WAS INCORPORATED IN ANY STATE IN
THE UNITED STATES PRIOR TO THE DATE OF THE ADOPTION AND USE BY THE
APPLICANT:  PROVIDED, THAT SAID NAME, DISTINGUISHING MARK, CHARACTER,
EMBLEM, COLORS, FLAG, OR BANNER WAS ADOPTED AND PUBLICLY USED BY SAID
INSTITUTION, ORGANIZATION, CLUB, OR SOCIETY PRIOR TO THE DATE OF
ADOPTION AND USE BY THE APPLICANT:  PROVIDED, THAT TRADE-MARKS WHICH
ARE IDENTICAL WITH A REGISTERED OR KNOWN TRADE-MARK OWNED AND IN USE BY
ANOTHER AND APPROPRIATED TO MERCHANDISE OF THE SAME DESCRIPTIVE
PROPERTIES, OR WHICH SO NEARLY RESEMBLE A REGISTERED OR KNOWN TRADE
MARK OWNED AND IN USE BY ANOTHER AND APPROPRIATED TO MERCHANDISE OF THE
SAME DESCRIPTIVE PROPERTIES AS TO BE LIKELY TO CAUSE CONFUSION OR
MISTAKE IN THE MIND OF THE PUBLIC OR TO DECEIVE PURCHASERS SHALL NOT BE
REGISTERED:  PROVIDED, THAT NO MARK WHICH CONSISTS MERELY IN THE NAME
OF AN INDIVIDUAL, FIRM, CORPORATION, OR ASSOCIATION NOT WRITTEN,
PRINTED, IMPRESSED, OR WOVEN IN SOME PARTICULAR OR DISTINCTIVE MANNER,
OR IN ASSOCIATION WITH A PORTRAIT OF THE INDIVDUAL, OR MERELY IN WORDS
OR DEVICES WHICH ARE DESCRIPTIVE OF THE GOODS WITH WHICH THEY ARE USED,
OR OF THE CHARACTER OR QUALITY OF SUCH GOODS, OR MERELY A GEOGRAPHICAL
NAME OR TERM, SHALL BE REGISTERED UNDER THE TERMS OF THIS SUBDIVISION
OF THIS CHAPTER:  PROVIDED FURTHER, THAT NO PORTRAIT OF A LIVING
INDIVIDUAL MAY BE REGISTERED AS A TRADE-MARK EXCEPT BY THE CONSENT OF
SUCH INDIVIDUAL, EVIDENCED BY AN INSTRUMENT IN WRITING, NOR MAY THE
PORTRAIT OF ANY DECEASED PRESIDENT OF THE UNITED STATES BE REGISTERED
DURING THE LIFE OF HIS WIDOW, IF ANY, EXCEPT BY THE CONSENT OF THE
WIDOW EVIDENCED IN SUCH MANNER:  AND PROVIDED FURTHER, THAT NOTHING
HEREIN SHALL PREVENT THE REGISTRATION OF ANY MARK USED BY THE APPLICANT
OR HIS PREDECESSORS, OR BY THOSE FROM WHOM TITLE TO THE MARK IS
DERIVED, IN COMMERCE WITH FOREIGN NATIONS OR AMONG THE SEVERAL STATES
OR WITH INDIAN TRIBES, WHICH WAS IN ACTUAL AND EXCLUSIVE USE AS A TRADE
MARK OF THE APPLICANT, OR HIS PREDECESSORS FROM WHOM HE DERIVED TITLE
FOR TEN YEARS NEXT PRECEDING FEBRUARY 20, 1905:  PROVIDED FURTHER, THAT
NOTHING HEREIN SHALL PREVENT THE REGISTRATION OF A TRADE-MARK OTHERWISE
REGISTERABLE BECAUSE OF ITS BEING THE NAME OF THE APPLICANT OR A
PORTION THEREOF.  AND IF ANY PERSON OR CORPORATION SHALL HAVE SO
REGISTERED A MARK UPON THE GROUND OF SAID USE FOR TEN YEARS PRECEDING
FEBRUARY 20, 1905, AS TO CERTAIN ARTICLES OR CLASSES OF ARTICLES TO
WHICH SAID MARK SHALL HAVE BEEN APPLIED FOR SAID PERIOD, AND SHALL HAVE
THEREAFTER AND SUBSEQUENTLY EXTENDED HIS BUSINESS SO AS TO INCLUDE
OTHER ARTICLES NOT MANUFACTURED BY SAID APPLICANT FOR TEN YEARS NEXT
PRECEDING FEBRUARY 20, 1905, NOTHING HEREIN SHALL PREVENT THE
REGISTRATION OF SAID TRADE-MARK IN THE ADDITIONAL CLASSES TO WHICH SAID
NEW ADDITIONAL ARTICLES MANUFACTURED BY SAID PERSON OR CORPORATION
SHALL APPLY, AFTER SAID TRADE-MARK HAS BEEN USED ON SAID ARTICLE IN
INTERSTATE OR FOREIGN COMMERCE OR WITH THE INDIAN TRIBES FOR AT LEAST
ONE YEAR, PROVIDED ANOTHER PERSON OR CORPORATION HAS NOT ADOPTED AND
USED PREVIOUSLY TO ITS ADOPTION AND USE BY THE PROPOSED REGISTRANT, AND
FOR MORE THAN ONE YEAR SUCH TRADE-MARK OR ONE SO SIMILAR AS TO BE
LIKELY TO DECEIVE IN SUCH ADDITIONAL CLASS OR CLASSES."  U.S.C., TITLE
15, SEC. 85. 

FN12  "ENAMEL OR VARNISH PAINT.  - THESE TYPES OF PAINTS DRY WITH A
BRILLIANT GLOSSY SURFACE.  THEY ARE MADE BY GRINDING THE SELECTED
PIGMENT, OR MIXTURE OF PIGMENTS, IN A VARNISH MEDIUM, AND THEIR NATURE
AND PROPERTIES DEPEND ON THE TYPE OF VARNISH USED.  A QUICK-DRYING
VARIETY IS MADE BY USING A CHEAP ROSIN VARNISH AS THE VEHICLE, IT DRIES
WITH A HIGH GLOSS SURFACE IN ABOUT 2-4 HOURS, BUT OWING TO THE BRITTLE
AND NON-DURABLE NATURE OF THE VARNISH USED IT IS ONLY SUITABLE FOR
INTERIOR USE.  HIGH-CLASS DURABLE ENAMELS, SUITABLE FOR BOTH INSIDE AND
OUTSIDE USE, ARE MADE BY USING MIXTURES OF HEAT-TREATED LINSEED OIL
(STAND OIL) AND ELASTIC COPAL VARNISHES AS THE VEHICLE.  THEY ARE SLOW
DRYING, TAKING FROM 12-18 HOURS, AND ARE VERY TOUGH UNDER THE SEVEREST
CLIMATIC CONDITIONS. 

"FLAT PAINT.  - THIS TYPE OF PAINT IS REALLY A FLAT-DRYING ENAMEL. 
IT IS MADE IN MUCH THE SAME WAY AS THE HIGH CLASS GLOSSY ENAMELS,
EXCEPT THAT IT CONTAINS LESS VARNISH AND MORE TURPENTINE THAN ORDINARY
ENAMEL.  SOME VARIETIES CONTAIN A PROPORTION OF WAX DISSOLVED IN THE
VARNISH SO AS TO GIVE A MORE PERFECT MAT OR FLAT FINISH.  OWING TO
THEIR PLEASING DECORATIVE EFFECT THEY ARE USED FOR INTERIOR
DECORATIONS, BUT ARE NOT SUITABLE FOR OUTSIDE USE."  17 ENCYCLOPEDIA
BRITANNICA (14TH ED.)  35. 

FN13  WRIGHT CO. V. SAR-A-LEE CO., 328 OFFICIAL GAZETTE 787, 788;
POSTUM CEREAL CO. V. CAL. FIG NUT CO., 313 O.G. 454; OPINION OF
SOLICITOR, INTERIOR DEPARTMENT, JULY 13, 1920, 277 O.G. 181, 182: 

"IN MY OPINION THE RECENT ACT OF MARCH 19, 1920, AS APPLIED TO
REGISTER (B) THEREIN PROVIDED SHOULD BE CONSTRUED AS IF IT MORE
SPECIFICALLY READ AS FOLLOWS: 

"'ALL OTHER MARKS NOT REGISTERABLE UNDER THE ACT OF FEBRUARY 20,
1905, AS AMENDED, EXCEPT THOSE SPECIFIED AS NOT REGISTERABLE IN
PARAGRAPHS OR SCHEDULES (A) AND (B) OF SECTION 5 OF THAT ACT, ETC.' 

"THIS IS THE PLAIN MEANING OF THE LAW, AS IT WAS UNDOUBTEDLY THE
INTENTION TO CONTINUE TO DENY REGISTRATION TO THOSE MARKS PROHIBITED
REGISTRATION BY PARAGRAPHS OF SCHEDULES (A) AND (B) OF SECTION 5 OF THE
ACT OF FEBRUARY 20, 1905.  IN OTHER WORDS, MY VIEW IS THAT REGISTER (B)
PROVIDED BY THE RECENT ACT IS NOT INTENDED FOR ANY TRADE-MARK
REGISTERABLE UNDER ANY PART OF THE ACT OF FEBRUARY 20, 1905, NOR FOR
REGISTRATION OF ANY MARK NOT REGISTERABLE AS SPECIFIED IN PARAGRAPHS OR
SCHEDULES (A) AND (B) OF SECTION 5 OF THAT ACT.  THE DOUBT WILL BE
RELIEVED AND A RATIONAL CONSTRUCTION OF THE LAW WILL BE SUBSERVED BY
CONSIDERING THE REFERENCE IN THE RECENT ACT TO 'PARAGRAPHS (A) AND (B)'
OF SECTION 5 OF THE AMENDED ACT OF FEBRUARY 20, 1905, AS MEANING
SCHEDULES A AND B RATHER THAN PARAGRAPHS STRICTLY AND AS COMPRISING THE
FOLLOWING MATTERS SPECIFIED AS NOT REGISTERABLE, VIZ: 

"'(A)  CONSISTS OF OR COMPRISES IMMORAL OR SCANDALOUS MATTER. 

"'(B)  CONSISTS OF OR COMPRISES THE FLAG OR COAT-OF-ARMS OR OTHER
INSIGNIA OF THE UNITED STATES OR ANY SIMULATION THEREOF, OR OF ANY
STATE OR MUNICIPALITY OR OF ANY FOREIGN NATION, OR OF ANY DESIGN OR
PICTURE THAT HAS BEEN OR MAY HEREAFTER BE ADOPTED BY ANY FRATERNAL
SOCIETY AS ITS EMBLEM, OR OF ANY NAME, DISTINGUISHING MARK, CHARACTER,
EMBLEM, COLORS, FLAG OR BANNER ADOPTED BY ANY INSTITUTION,
ORGANIZATION, CLUB, OR SOCIETY WHICH WAS INCORPORATED IN ANY STATE IN
THE UNITED STATES PRIOR TO THE DATE OF THE ADOPTION AND USE BY THE
APPLICANT:  PROVIDED, THAT SAID NAME, DISTINGUISHING MARK, CHARACTER,
EMBLEM, COLORS, FLAG, OR BANNER WAS ADOPTED AND PUBLICLY USED BY SAID
INSTITUTION, ORGANIZATION, CLUB, OR SOCIETY PRIOR TO THE DATE OF
ADOPTION AND USE BY THE APPLICANT.' 

"THIS WAS THE EVIDENT INTENTION, AS SHOWN BY THE CONGRESSIONAL
HEARINGS ON THE RECENT ACT, AND WITH SUCH CONSTRUCTION A FIELD WILL
EXIST FOR THE OPERATION OF THE NEW LAW; OTHERWISE NONE WOULD REMAIN." 

RULE 19 OF THE RULES OF THE PATENT OFFICE GOVERNING REGISTRATION OF
TRADE-MARKS, ISSUED JULY 1, 1937, READS AS FOLLOWS: 

"A TRADE-MARK MUST HAVE BEEN ACTUALLY USED IN COMMERCE BEFORE AN
APPLICATION FOR ITS REGISTRATION CAN BE FILED IN THE PATENT OFFICE. 

"NO TRADE-MARK WILL BE REGISTERED  ...  UNDER THE ACT OF FEBRUARY 20,
1905, WHICH CONSISTS MERELY IN THE NAME OF AN INDIVIDUAL, FIRM,
CORPORATION, OR ASSOCIATION, NOT WRITTEN, PRINTED, IMPRESSED, OR WOVEN
IN SOME PARTICULAR OR DISTINCTIVE MANNER OR IN ASSOCIATION WITH A
PORTRAIT OF THE INDIVIDUAL, OR MERELY IN WORDS OR DEVICES WHICH ARE
DESCRIPTIVE OF THE GOODS WITH WHICH THEY ARE USED, OR OF THE CHARACTER
OR QUALITY OF SUCH GOODS, OR MERELY A GEOGRAPHICAL NAME OR TERM ...  NO
TRADE-MARK WILL BE REGISTERED UNDER SECTION 1(B), ACT OF MARCH 19,
1920, WHICH IS REGISTRABLE UNDER THE ACT OF FEBRUARY 20, 1905, AS
AMENDED, OR WHICH HAS NOT BEEN IN BONA FIDE USE AS A TRADE-MARK FOR ONE
YEAR IN INTERNATIONAL OR INTERSTATE COMMERCE OR COMMERCE WITH INDIAN
TRIBES." 

FN14  IN RE CHAS. R. LONG, JR., CO., 51 APP. D.C. 399; 280 F. 975,
977. 

FN15  FOX V. STANDARD OIL CO., 294 U.S. 87, 96. 

ON JANUARY 21 AND 22, 1920, THE COMMITTEE ON PATENTS OF THE HOUSE OF
REPRESENTATIVES WAS CONSIDERING H.R. 7157 OF THE 66TH CONGRESS, 2ND
SESSION, A BILL TO AMEND SEC. 5 OF THE TRADE-MARK ACT OF 1905.  THE
COMMISSIONER OF PATENTS DISCUSSED WITH THE COMMITTEE AN AMENDMENT
APPLICABLE TO H.R. 9023 OF THE 66TH CONGRESS ENTITLED "A BILL TO GIVE
EFFECT TO CERTAIN PROVISIONS OF THE CONVENTION FOR THE PROTECTION OF
TRADE-MARKS."  THE APPLICABLE LANGUAGE IS AS FOLLOWS: 

"MR. NEWTON.  YES.  THE AMENDMENT WE PROPOSE IS THIS: 

"'ALL OTHER MARKS NOT REGISTERABLE UNDER THE ACT OF FEBRUARY 20,
1905(AS AMENDED), BUT WHICH FOR NOT LESS THAN TWO YEARS HAVE BEEN BONA
FIDE USED IN INTERSTATE OR FOREIGN COMMERCE, OR COMMERCE WITH INDIAN
TRIBES, BY THE PROPRIETOR THEREOF, UPON OR IN CONNECTION WITH ANY GOODS
OF SUCH PROPRIETOR AND UPON WHICH THE FEE OF $10 HAS BEEN PAID AND SUCH
FORMALITIES AS ARE PRESCRIBED BY THE COMMISSIONER OF PATENTS HAVE BEEN
COMPLIED WITH, MAY BE REGISTERED.' 

"ANYTHING MAY BE REGISTERED.  THAT IS AN AMENDMENT TO THE BILL THAT
WAS PASSED YESTERDAY.  THAT BILL DOES NOT GIVE PRIMA FACIE VALIDITY TO
THE MARK THAT IS REGISTERED, THE BILL THAT PASSED YESTERDAY, AND THIS
AMENDMENT DOES NOT GIVE IT.  THAT IS THE REASON WE PUT THIS PROPOSED
AMENDMENT INTO THE BILL.  BUT MR. MERRITT'S BILL WANTS TO GIVE THEM
PRIMA FACIE EVIDENCE OF OWNERSHIP, SO WE PUT THAT UNDER THE 1905
STATUTE WHERE IT NATURALLY BELONGS."  HEARINGS ON H.R. 7157 BEFORE THE
COMMITTEE ON PATENTS, 66TH CONGRESS, 2D SESSION, P. 30. 

LATER IN THE HEARING ON THE BILL WHICH BECAME THE ACT OF MARCH 19,
1920, THIS DISCUSSION WAS CONTINUED BY MR. WHITEHEAD, ASSISTANT
COMMISSIONER OF PATENTS, WHO DISCUSSED THE COMMISSIONER'S SUGGESTED
LANGUAGE QUOTED ABOVE AND SAID: 

"ONE OR TWO SLIGHT AMENDMENTS OUGHT, IT SEEMS TO ME, TO BE MADE TO
THE BILL.  THE BILL AS IT STANDS IS BROAD ENOUGH TO PUT ANY MARK ON THE
REGISTER.  SECTION 5 OF THE ACT OF FEBRUARY 20, 1905, OUTLAWS - IF I
MAY USE THAT EXPRESSION - TWO CLASSES OF MARKS - ONE, SCANDALOUS AND
IMMORAL MARKS, AND THE OTHER MARKS CONSISTING OF THE FLAG OR COAT OF
ARMS OF THE UNITED STATES, ETC., AND IT SEEMS AS IF THIS SENATE
AMENDMENT OUGHT TO BE AMENDED TO EXCLUDE THOSE MARKS SPECIFIED IN
PARAGRAPHS (A) AND (B) OF THAT SECTION.  OTHERWISE THERE CAN BE PUT ON
THE REGISTER SCANDALOUS MARKS AND THE FLAG OF THE UNITED STATES.  I
THINK IT MUST HAVE BEEN OVERLOOKED.  I DO NOT THINK MR. MERRITT OR MR.
NEWTON THOUGHT THAT THEY WERE INCLUDING THOSE TWO TYPES OF MARKS.  IT
SEEMS AS IF THAT COULD BE ACCOMPLISHED BY INSERTING IN THE AMENDMENT,
AFTER THE WORDS 'ALL OTHER MARKS NOT REGISTERABLE UNDER THE ACT OF
FEBRUARY 20, 1905,' THE WORDS, 'EXCEPT THOSE SPECIFIED IN PARAGRAPHS
(A) AND (B) OF SECTION 5 OF THAT ACT,' OR WORDS TO THAT EFFECT." 

     .        .         .         .         . 

AFTER DISCUSSION OF OTHER MATTERS: 

"THE CHAIRMAN.  IF YOU WILL IN YOUR BRIEF JUST MAKE THOSE
SUGGESTIONS, WE WILL BE GLAD TO TAKE THEM UP WITH THE CONFEREES. 

"MR. WHITEHEAD.  I WILL BE GLAD TO DO THAT.  I THINK THE ONLY REALLY
IMPORTANT ONE IS TO EXCLUDE THOSE OF PARAGRAPHS (A) AND (B) OF SECTION
5.  THESE OTHERS ARE MINOR MATTERS."  HEARINGS ON H.R. 9023 BEFORE THE
COMMITTEE ON PATENTS, 66TH CONGRESS, 2ND SESSION, PART 2, PP. 33-35. 

THE PRECISE LANGUAGE ADOPTED CAME FROM THE CONFERENCE REPORT. 
CONGRESSIONAL RECORD, 66TH CONGRESS, 2ND SESSION, P. 4160.    FN16  THE
VARIATIONS BETWEEN THE TWO PROVISOS HAVE BEEN TREATED IN PRACTICE AS
IMMATERIAL.  277 O.G. 181, 182.  CF. THADDEUS DAVIDS CO. V. DAVIDS MFG.
CO., 233 U.S. 461, 467. 

FN17  CAMINETTI V. UNITED STATES, 242 U.S. 470, 485; CROOKS V.
HARRELSON, 282 U.S. 55, 58-59; TAFT V. COMMISSIONER, 304 U.S. 351,
359. 

FN18  SORRELLS V. UNITED STATES, 287 U.S. 435, 446, ET SEQ. AND CASES
CITED; UNITED STATES V. RYAN, 284 U.S. 167. 

FN19  SINCE NEITHER PARTY HAS RELIED UPON STATE LAW, WE DO NOT
CONSIDER ANY EFFECT IT MIGHT HAVE ON OUR CONCLUSIONS.  CF. KELLOGG CO.
V. NATIONAL BISCUIT CO., ANTE, P. 111. 

FN20  SEE NOTE 5, SUPRA. 

FN21  "THIS LEGISLATION HAS NO EFFECT ON THE DOMESTIC RIGHTS OF
ANYONE.  IT IS SIMPLY FOR THE PURPOSE OF ENABLING MANUFACTURERS TO
REGISTER THEIR TRADE-MARKS IN THIS COUNTRY FOR THE PURPOSE OF COMPLYING
WITH LEGISLATION IN FOREIGN COUNTRIES, WHICH NECESSITATES REGISTRATION
IN THE UNITED STATES AS A NECESSARY PRELIMINARY FOR SUCH FOREIGN
REGISTRATION.  AS THE LAW NOW STANDS, IT ENABLES TRADE-MARK PIRATES IN
FOREIGN COUNTRIES TO REGISTER AS TRADE-MARKS, THE NAMES AND MARKS OF
THE AMERICAN MANUFACTURERS, AND THUS LEVY BLACKMAIL UPON THEM."  SENATE
REPORT NO. 432, 66TH CONGRESS, 2ND SESSION, P. 2.  CF. CHARLES BROADWAY
ROUSS, INC. V. WINCHESTER CO., 300 F. 706, 714. 

FN22  WARNER & CO. V. LILLY & CO., 265 U.S. 526, 528; STANDARD PAINT
CO. V. TRINIDAD ASPHALT MFG. CO., 220 U.S. 446, 453; ELGIN NAT. WATCH
CO. V. ILLINOIS WATCH CO., 179 U.S. 665, 673. 

FN23  233 U.S. 461, 466, 468, 469, 470. 

FN24  CF. STANDARD PAINT CO. V. TRINIDAD ASPHALT MFG. CO., 220 U.S.
446, 461.  THE LANGUAGE IN THAT CASE, DENYING TO A DESCRIPTIVE TERM THE
EFFECT OF A TRADE-MARK, IS INAPPLICABLE FOR THE REASON THAT THE
DESCRIPTIVE TERM HAD NOT ACQUIRED A SECONDARY MEANING. 

FN25  CF. CHARLES BROADWAY ROUSS, INC. V. WINCHESTER CO., 300 F. 706,
713. 

FN26  THADDEUS DAVIDS CO. V. DAVIDS MFG. CO., 233 U.S. 461, 470,
471. 

FN27  ELGIN NAT. WATCH CO. V. ILLINOIS WATCH CO., 179 U.S. 665, 674. 

..END :




















GENERAL PICTURES CO. V. ELECTRIC CO., 305 U.S. 124 


NO. 1.  REARGUED OCTOBER 19, 20, 1938.  - DECIDED NOVEMBER 21, 1938.  -
91 F.2D 922, AFFIRMED. 


1.  THE OWNER OF A PATENT MAY LAWFULLY RESTRICT HIS LICENSEE TO
MANUFACTURE AND SALE OF THE PATENTED INVENTION FOR USE IN ONLY ONE OR
SOME OF SEVERAL DISTINCT FIELDS IN WHICH IT IS USEFUL, EXCLUDING HIM
FROM THE OTHERS.  P. 125. 

2.  WHERE A LICENSEE, SO RESTRICTED, MAKES AND SELLS THE PATENTED
ARTICLE FOR A USE OUTSIDE THE SCOPE OF HIS LICENSE, HE IS AN INFRINGER;
AND HIS VENDEE, BUYING WITH KNOWLEDGE OF THE FACTS, IS LIKEWISE AN
INFRINGER.  P. 127. 

3.  IN THIS CASE, THE COURT HAS NO OCCASION TO CONSIDER (A) WHAT THE
RIGHTS OF THE PARTIES WOULD HAVE BEEN IF THE ARTICLES EMBODYING THE
PATENTED INVENTION HAD BEEN MANUFACTURED UNDER THE PATENT AND HAD
PASSED INTO THE HANDS OF A PURCHASER IN THE ORDINARY CHANNELS OF TRADE;
OR (B) THE EFFECT OF A NOTICE ATTACHED TO ARTICLES LAWFULLY MADE AND
SOLD UNDER LICENSE OF THE PATENT-OWNER, AND WHICH PURPORTS TO RESTRICT
THEIR USE.  ID. 

GENERAL TALKING PICTURES CORPORATION V. WESTERN ELECTRIC CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

IN THIS CASE THERE WERE SEVERAL SUITS FOR INFRINGEMENTS OF PATENTS
RELATING TO VACUUM TUBE AMPLIFIERS.  THE COURT BELOW WAS AFFIRMED AT
THE LAST TERM; BUT A REHEARING WAS GRANTED ON SOME OF THE QUESTIONS
SAID TO BE INVOLVED.  304 U.S. 175, 546, 587. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE, WE AFFIRMED ON MAY 2, 1938, 304 U.S. 175, THE JUDGMENT
OF THE CIRCUIT COURT OF APPEALS, 91 F.2D 922, WHICH HELD THAT
PETITIONER HAD INFRINGED CERTAIN PATENTS RELATING TO VACUUM TUBE
AMPLIFIERS.  ON MAY 31ST, WE GRANTED A REHEARING, 304 U.S. 587, UPON
THE FOLLOWING QUESTIONS WHICH HAD BEEN PRESENTED BY THE PETITION FOR
CERTIORARI. 

1.  CAN THE OWNER OF A PATENT, BY MEANS THEREOF, RESTRICT THE USE
MADE OF A DEVICE MANUFACTURED UNDER THE PATENT, AFTER THE DEVICE HAS
PASSED INTO THE HANDS OF A PURCHASER IN THE ORDINARY CHANNELS OF TRADE,
AND FULL CONSIDERATION PAID THEREFOR? 

2.  CAN A PATENT OWNER, MERELY BY A "LICENSE NOTICE" ATTACHED TO A
DEVICE MADE UNDER THE PATENT, AND SOLD IN THE ORDINARY CHANNELS OF
TRADE, PLACE AN ENFORCEABLE RESTRICTION ON THE PURCHASER THEREOF AS TO
THE USE TO WHICH THE PURCHASER MAY PUT THE DEVICE? 

UPON FURTHER HEARING WE ARE OF OPINION THAT NEITHER QUESTION SHOULD
BE ANSWERED.  FOR WE FIND THAT, WHILE THE DEVICES EMBODY THE INVENTIONS
OF THE PATENTS IN SUIT, THEY WERE NOT MANUFACTURED OR SOLD "UNDER THE
(PATENTS)" AND DID NOT "PASS INTO THE HANDS OF A PURCHASER IN THE
ORDINARY CHANNELS OF TRADE." 

THESE ARE THE RELEVANT FACTS.  AMPLIFIERS EMBODYING THE INVENTION
HERE INVOLVED ARE USEFUL IN SEVERAL DISTINCT FIELDS.  AMONG THESE IS
(A) THE COMMERCIAL FIELD OF SOUND RECORDING AND REPRODUCING, WHICH
EMBRACES TALKING PICTURE EQUIPMENT FOR THEATRES, AND (B) THE PRIVATE OR
HOME FIELD, WHICH EMBRACES RADIO BROADCAST RECEPTION, RADIO AMATEUR
RECEPTION AND RADIO EXPERIMENTAL RECEPTION.  FOR THE COMMERCIAL FIELD
EXCLUSIVE LICENSES HAD BEEN GRANTED BY THE PATENT POOL TO WESTERN
ELECTRIC COMPANY AND ELECTRICAL RESEARCH PRODUCTS, INC. FOR THE PRIVATE
OR HOME FIELD THE PATENT POOL GRANTED NON-EXCLUSIVE LICENSES TO ABOUT
FIFTY MANUFACTURERS.  AMONG THESE WAS AMERICAN TRANSFORMER COMPANY.  IT
WAS LICENSED "SOLELY AND ONLY TO THE EXTENT AND FOR THE USES
HEREINAFTER SPECIFIED AND DEFINED  ...  TO MANUFACTURE  ...  , AND TO
SELL ONLY FOR RADIO AMATEUR RECEPTION, RADIO EXPERIMENTAL RECEPTION AND
RADIO BROADCAST RECEPTION  ...  LICENSED APPARATUS SO MANUFACTURED BY
THE LICENSEE.  ...  " 

THE LICENSE PROVIDED FURTHER: 

"NOTHING HEREIN CONTAINED SHALL BE REGARDED AS CONFERRING UPON THE
LICENSEE EITHER EXPRESSLY OR BY ESTOPPEL, IMPLICATION, OR OTHERWISE, A
LICENSE TO MANUFACTURE OR SELL ANY APPARATUS EXCEPT SUCH AS MAY BE
MANUFACTURED BY THE LICENSEE IN ACCORDANCE WITH THE EXPRESS PROVISIONS
OF THIS AGREEMENT." 

TRANSFORMER COMPANY, KNOWING THAT IT HAD NOT BEEN LICENSED TO
MANUFACTURE OR TO SELL AMPLIFIERS FOR USE IN THEATRES AS PART OF
TALKING PICTURE EQUIPMENT, MADE FOR THAT COMMERCIAL USE THE AMPLIFIERS
IN CONTROVERSY AND SOLD THEM TO PICTURES CORPORATION FOR THAT
COMMERCIAL USE.  PICTURES CORPORATION ORDERED THE AMPLIFIERS AND
PURCHASED THEM KNOWING THAT TRANSFORMER COMPANY HAD NOT BEEN LICENSED
TO MAKE OR SELL THEM FOR SUCH USE IN THEATRES.  ANY USE BEYOND THE
VALID TERMS OF A LICENSE IS, OF COURSE, AN INFRINGEMENT OF A PATENT. 
ROBINSON ON PATENTS, SEC. 916.  IF WHERE A PATENTED INVENTION IS
APPLICABLE TO DIFFERENT USES, THE OWNER OF THE PATENT MAY LEGALLY
RESTRICT A LICENSEE TO A PARTICULAR FIELD AND EXCLUDE HIM FROM OTHERS,
TRANSFORMER COMPANY WAS GUILTY OF AN INFRINGEMENT WHEN IT MADE THE
AMPLIFIERS FOR, AND SOLD THEM TO, PICTURES CORPORATION.  AND AS
PICTURES CORPORATION ORDERED, PURCHASED AND LEASED THEM KNOWING THE
FACTS, IT ALSO WAS AN INFRINGER. 

THE QUESTION OF LAW REQUIRING DECISION IS WHETHER THE RESTRICTION IN
THE LICENSE IS TO BE GIVEN EFFECT.  THAT A RESTRICTIVE LICENSE IS LEGAL
SEEMS CLEAR.  MITCHELL V. HAWLEY, 16 WALL.  544.  AS WAS SAID IN UNITED
STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, 489, THE PATENTEE MAY
GRANT A LICENSE "UPON ANY CONDITION THE PERFORMANCE OF WHICH IS
REASONABLY WITHIN THE REWARD WHICH THE PATENTEE BY THE GRANT OF THE
PATENT IS ENTITLED TO SECURE."  THE RESTRICTION HERE IMPOSED IS OF THAT
CHARACTER.  THE PRACTICE OF GRANTING LICENSES FOR A RESTRICTED USE IS
AN OLD ONE, SEE RUBBER COMPANY V. GOODYEAR, 9 WALL.  788, 799, 800;
GAMEWELL FIRE-ALARM TELEGRAPH CO. V. BROOKLYN, 14 F. 255.  SO FAR AS
APPEARS, ITS LEGALITY HAS NEVER BEEN QUESTIONED.  THE PARTIES
STIPULATED THAT "IT IS COMMON PRACTICE WHERE A PATENTED INVENTION IS
APPLICABLE TO DIFFERENT USES, TO GRANT WRITTEN LICENSES TO MANUFACTURE
UNDER UNITED STATES LETTERS PATENTS RESTRICTED TO ONE OR MORE OF THE
SEVERAL FIELDS OF USE PERMITTING THE EXCLUSIVE OR NON-EXCLUSIVE USE OF
THE INVENTION BY THE LICENSEE IN ONE FIELD AND EXCLUDING IT IN ANOTHER
FIELD." 

AS THE RESTRICTION WAS LEGAL AND THE AMPLIFIERS WERE MADE AND SOLD
OUTSIDE THE SCOPE OF THE LICENSE THE EFFECT IS PRECISELY THE SAME AS IF
NO LICENSE WHATSOEVER HAD BEEN GRANTED TO TRANSFORMER COMPANY.  AND AS
PICTURES CORPORATION KNEW THE FACTS, IT IS IN NO BETTER POSITION THAN
IF IT HAD MANUFACTURED THE AMPLIFIERS ITSELF WITHOUT A LICENSE.  IT IS
LIABLE BECAUSE IT HAS USED THE INVENTION WITHOUT LICENSE TO DO SO. 

WE HAVE CONSEQUENTLY NO OCCASION TO CONSIDER WHAT THE RIGHTS OF THE
PARTIES WOULD HAVE BEEN IF THE AMPLIFIER HAD BEEN MANUFACTURED "UNDER
THE PATENT" AND "HAD PASSED INTO THE HANDS OF A PURCHASER IN THE
ORDINARY CHANNELS OF TRADE."  NOR HAVE WE OCCASION TO CONSIDER THE
EFFECT OF A "LICENSEE'S NOTICE" WHICH PURPORTS TO RESTRICT THE USE OF
ARTICLES LAWFULLY SOLD.  AFFIRMED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. JUSTICE BLACK, DISSENTING. 

ALMOST A CENTURY AGO, THIS COURT ASSERTED, AND TIME AFTER TIME
THEREAFTER IT HAS REASSERTED, THAT WHEN AN ARTICLE DESCRIBED IN A
PATENT IS SOLD AND "PASSES TO THE HANDS OF A PURCHASER, IT IS NO LONGER
WITHIN THE LIMITS OF THE MONOPOLY.  IT PASSES OUTSIDE OF IT, AND IS NO
LONGER UNDER THE PROTECTION OF THE ACT OF CONGRESS.  ...  CONTRACTS IN
RELATION TO IT ARE REGULATED BY THE LAWS OF THE STATE, AND ARE SUBJECT
TO STATE JURISDICTION."  FN1 

A SINGLE DEPARTURE FROM THIS JUDICIAL INTERPRETATION OF THE PATENT
STATUTE  FN2  WAS EXPRESSLY OVERRULED WITHIN FIVE YEARS, AND THIS COURT
AGAIN REASSERTED THAT COMMODITIES - ONCE SOLD - WERE NOT THEREAFTER
"SUBJECT TO CONDITIONS AS TO USE" IMPOSED BY PATENT OWNERS.  FN3  IN
RESULT, THE JUDGMENT HERE IS A SECOND DEPARTURE FROM THE TRADITIONAL
JUDICIAL INTERPRETATION OF THE PATENT LAWS. 

AS A CONSEQUENCE OF THE RETURN TO THE INTERPRETATION OF THE PATENT
STATUTES PREVIOUSLY REPUDIATED AND EXPRESSLY OVERRULED, PETITIONER IS
ENJOINED FROM MAKING FULL USE OF, AND MUST ACCOUNT IN TRIPLE DAMAGES
FOR USING TUBES AND AMPLIFIERS WHICH HE OWNS.  HE BECAME THE OWNER OF
THE TUBES BY PURCHASE FROM VARIOUS RETAILERS AUTHORIZED BY RESPONDENTS
TO SELL IN THE OPEN MARKET.  HE BECAME THE OWNER OF THE AMPLIFIERS BY
PURCHASE FROM A MANUFACTURER WHO - HAVING THE COMPLETE RIGHT TO MAKE
THEM - HAD CONTRACTED TO SELL ONLY FOR LIMITED USES.  FN4  THE
DEPARTURE HERE PERMITS THE PATENTEE - BY VIRTUE OF HIS CONTRACT WITH
THE MANUFACTURER - TO RESTRICT THE USES TO WHICH THIS PURCHASER AND
OWNER MAY PUT HIS TUBES AND AMPLIFIERS. 

TRANSFORMER COMPANY WAS AUTHORIZED BY THE PATENTEE TO MAKE AND TO
SELL AMPLIFIERS.  IT DID MAKE SUCH AMPLIFIERS - OF A STANDARD TYPE
USABLE IN MANY FIELDS, FN5  THEY BECAME ITS PROPERTY WHEN MADE, WERE
SOLD TO AND BECAME THE PROPERTY OF PETITIONER.  THE PRIOR OPINION IN
THIS CASE, BOTH COURTS BELOW AND THE OPINION ON THIS REHEARING, ALL
REFER TO THE TRANSACTION BETWEEN TRANSFORMER COMPANY AND PETITIONER AS
A SALE.  EVEN THE VERY CONTRACT AUTHORIZING THE TRANSFORMER COMPANY TO
MAKE AND SELL THE AMPLIFIERS PROVIDED "THAT FOR THE PURPOSE OF THIS
AGREEMENT ALL LICENSED APPARATUS SHALL BE CONSIDERED AS 'SOLD' WHEN THE
LICENSED APPARATUS HAS BEEN BILLED OUT, OR IF NOT BILLED OUT, WHEN IT
HAS BEEN DELIVERED, SHIPPED, OR MAILED." 

NOTICE TO THE PURCHASER IN ANY FORM COULD NOT - UNDER THE PATENT LAW
LIMIT OR RESTRICT THE USE OF THE AMPLIFIERS AFTER THEY WERE SOLD  FN6
AND KNOWLEDGE BY BOTH VENDOR AND PURCHASER THAT THE ARTICLES WERE
PURCHASED FOR USE OUTSIDE THE "FIELD" FOR WHICH THE VENDOR HAD BEEN
GIVEN THE RIGHT TO SELL, MADE THE TRANSACTION BETWEEN THEM NO LESS A
SALE.  FN7  HAD PETITIONER - AFTER MAKING THE PURCHASE - DECIDED NOT TO
USE THESE AMPLIFIERS IN THE FORBIDDEN FIELDS, OR HAD THEY BEEN
DESTROYED PRIOR TO SUCH USE, CERTAINLY THE MERE STATE OF MIND OF THE
PARTIES AT THE TIME OF SALE WOULD NOT HAVE MADE THEM BOTH INFRINGERS. 

INDEED, PETITIONER COULD USE THE AMPLIFIERS AT ALL ONLY IN
COMBINATION WITH TUBES WHICH IT PURCHASED ON THE OPEN MARKET FROM
RETAILERS AUTHORIZED BY RESPONDENTS TO SELL.  THEREFORE, EVEN IF THE
STATE OF MIND OF VENDOR AND PURCHASER WERE MATERIAL, TRANSFORMER
COMPANY COULD BE CONSIDERED AN INFRINGER ONLY BECAUSE IT SOLD A
COMMODITY WHICH MIGHT - DEPENDING ON POSSIBLE EVENTS AFTER THE SALE -
BE USED IN INFRINGING COMBINATION WITH ANOTHER LAWFULLY PURCHASED
COMMODITY.  THE PATENT LAW WAS NOT INTENDED TO ACCOMPLISH SUCH RESULT. 
FN8 

PETITIONER HAS PERSISTENTLY CONTENDED THROUGHOUT THIS LITIGATION THAT
NO EXISTING TRADE PRACTICE PERMITS A PATENTEE - UNDER GUISE OF A
"LICENSE" - TO EXTEND HIS MONOPOLY TO COMMODITIES AFTER SALE, AND HAS
NOT STIPULATED OTHERWISE.  FN9  NEITHER STIPULATION NOR PRACTICE COULD
JUSTIFY EXTENSION OF PATENT MONOPOLY BEYOND THE LIMITS OF LEGALITY
FIXED BY CONGRESS AND RECOGNIZED BY THIS COURT FOR OVER THREE-QUARTERS
OF A CENTURY.  "THE STATUTORY AUTHORITY TO GRANT THE EXCLUSIVE RIGHT TO
'USE' A PATENTED MACHINE  ...  IS PRECISELY THE SAME, AS THE AUTHORITY
TO GRANT THE EXCLUSIVE RIGHT TO 'VEND,'  ...  "  FN10  A WIDESPREAD
PRACTICE OF RESTRICTING THE RESALE PRICE OF ARTICLES DESCRIBED IN
PATENTS  FN11  DID NOT PREVENT THIS COURT FROM HOLDING THAT ONCE THE
STATUTORY RIGHT TO VEND HAS BEEN EXERCISED "THE ADDED RESTRICTION IS
BEYOND THE PROTECTION AND PURPOSE OF THE ACT."  FN12  SIMILARLY, A
"COMMON PRACTICE  ...  TO GRANT WRITTEN LICENSES  ... RESTRICTED TO ONE
OR MORE  ...  FIELDS OF USE" CANNOT PREVENT THE APPLICATION OF "THAT
LINE OF CASES IN WHICH THIS COURT FROM THE BEGINNING HAS HELD THAT A
PATENTEE WHO HAS PARTED WITH A PATENTED MACHINE BY PASSING TITLE TO A
PURCHASER HAS PLACED THE ARTICLE BEYOND THE LIMITS OF THE MONOPOLY
SECURED BY THE PATENT ACT."  FN13 

FN1  BLOOMER V. MCQUEWAN, 14 HOW.  539, 549-50; SEE, CHAFFEE V.
BOSTON BELTING CO., 22 HOW.  217, 223; MITCHELL V. HAWLEY, 16 WALL. 
544, 547; ADAMS V. BURKE, 17 WALL.  453; WADE V. METCALF, 129 U.S. 202,
205; BOESCH V. GRAFF, 133 U.S. 697, 702; HOBBIE V. JENNISON, 149 U.S.
355; MORGAN ENVELOPE CO. V. ALBANY PAPER CO., 152 U.S. 425; KEELER V.
STANDARD FOLDING BED CO., 157 U.S. 659; BAUER & CIE V. O'DONNELL, 229
U.S. 1; STRAUS V. VICTOR TALKING MACHINE CO., 243 U.S. 490; MOTION
PICTURE PATENTS CO. V. UNIVERSAL FILM CO., 243 U.S. 502; BOSTON STORE
V. AMERICAN GRAPHOPHONE CO., 246 U.S. 8.  THE RULE ASSERTED IN THESE
CASES IS IN ACCORD WITH THE VIEWS OF THOMAS JEFFERSON WHO SERVED AS A
MEMBER OF THE FIRST PATENT BOARD ESTABLISHED BY THE FIRST PATENT ACT OF
1790(1 STAT. 109) AND WHO ALSO DRAFTED THE COMPREHENSIVE PATENT LAW OF
1793(1 STAT. 318).  SEE, "THE JEFFERSONIAN CYCLOPEDIA," P. 680(FUNK AND
WAGNALLS, 1900).  THE ACTS OF 1790 AND 1793 GRANTED PATENTEES FOR
FOURTEEN YEARS THE EXCLUSIVE RIGHT "OF MAKING, CONSTRUCTING, USING AND
VENDING TO OTHERS TO BE USED."  MR. JEFFERSON, REFERRING TO THE GENERAL
RULES ADOPTED BY THE FIRST PATENT BOARD, SAID:  "ONE OF THESE (RULES)
WAS, THAT A MACHINE OF WHICH WE WERE POSSESSED, MIGHT BE APPLIED BY
EVERY MAN TO ANY USE OF WHICH IT IS SUSCEPTIBLE, AND THAT THIS RIGHT
OUGHT NOT TO BE TAKEN FROM HIM AND GIVEN TO A MONOPOLIST, BECAUSE THE
FIRST PERHAPS HAD OCCASION SO TO APPLY IT. THUS A SCREW FOR CRUSHING
PLASTER MIGHT BE EMPLOYED FOR CRUSHING CORN-COBS.  AND A CHAIN-PUMP FOR
RAISING WATER MIGHT BE USED FOR RAISING WHEAT:  THIS BEING MERELY A
CHANGE OF APPLICATION."  "THE WRITINGS OF THOMAS JEFFERSON," VOL. VI,
H.A. WASHINGTON, EDITOR, P. 181(PUBLISHED BY ORDER OF THE JOINT
COMMITTEE OF CONGRESS ON THE LIBRARY, 1861).  AFTER THE PATENT BOARD'S
DUTIES DEVOLVED UPON THE COURTS, MR. JEFFERSON SUGGESTED THAT THE RULE
BE "ADOPTED BY THE JUDGES" THAT "THE PURCHASER OF THE RIGHT TO USE THE
INVENTION SHOULD BE FREE TO APPLY IT TO EVERY PURPOSE OF WHICH IT IS
SUSCEPTIBLE."  ID., P. 372. 

UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476, RELIED ON BY THE
MAJORITY HERE, WAS NOT A SUIT FOR INFRINGEMENT OF A PATENT, BUT WAS AN
ACTION BY THE UNITED STATES UNDER THE ANTI-TRUST LAWS.  THE OPINION WAS
WRITTEN BY CHIEF JUSTICE TAFT AND APPLIED SOME OF THE REASONING OF THE
BUTTON-FASTENER CASE, 77 F. 288, IN WHICH HE HAD AGREED AS CIRCUIT
JUDGE TO THE OPINION OF CIRCUIT JUDGE LURTON.  LATER, THIS COURT IN
HENRY V. DICK CO., 224 U.S. 1, WITH THE THEN JUSTICE LURTON WRITING THE
OPINION, FOLLOWED THE BUTTON-FASTENER CASE.  MOTION PICTURE PATENTS CO.
V. UNIVERSAL FILM CO., SUPRA, EXPRESSLY OVERRULED AND REPUDIATED THE
DOCTRINE OF THE DICK CASE.  IN EFFECT, THE JUDGMENT HERE ONCE MORE
REVIVES THE DOCTRINE OF THE BUTTON-FASTENER CASE.    THE MAJORITY
OPINION ALSO RELIES UPON MITCHELL V. HAWLEY, SUPRA.  IT IS SIGNIFICANT
THAT IN THE HAWLEY CASE THE PATENTEE NEVER LICENSED OR TRANSFERRED HIS
EXCLUSIVE RIGHT TO SELL; AND THE LICENSE CONVEYED ONLY "THE EXCLUSIVE
RIGHT TO MAKE AND USE 'AND TO LICENSE TO OTHERS THE RIGHT TO USE  ...
'"  16 WALL., AT 548.  THAT CASE, THEREFORE, DOES NOT JUSTIFY THE
JUDGMENT HERE WHERE THE PATENTEE'S POWER TO VEND WAS BOTH TRANSFERRED
AND EXERCISED. 

FN2  HENRY V. DICK CO., 224 U.S. 1, DECIDED MARCH 11, 1912. 

FN3  MOTION PICTURE PATENTS CO. V. UNIVERSAL FILM CO., SUPRA, 516,
SIMILARLY, THE EXERCISE OF THE RIGHT TO VEND EXHAUSTS THE RIGHT UNDER A
PATENT TO CONTROL THE PRICE AT WHICH AN ARTICLE CLAIMED IN THE PATENT
MAY SUBSEQUENTLY BE SOLD.  BAUER & CIE V. O'DONNELL; STRAUS V. VICTOR
TALKING MACHINE CO.; BOSTON STORE V. AMERICAN GRAPHOPHONE CO., SUPRA. 

FN4  LICENSE AGREEMENT.  "  ...  THAT WHEREAS THE LICENSORS REPRESENT
THAT THEY SEVERALLY OWN AND/OR HAVE THE RIGHT TO GRANT LICENSES UNDER
VARIOUS UNITED STATES LETTERS PATENT RELATING TO POWER SUPPLY AND TO
POWER AMPLIFIER UNITS, HEREINAFTER TERMED LICENSED APPARATUS,  ... 

"1.  EACH OF THE LICENSORS HEREBY GRANTS UNDER ALL OF THE UNITED
STATES PATENT USEFUL IN THE LICENSED APPARATUS, OWNED BY IT AND/OR WITH
RESPECT TO WHICH IT HAS THE RIGHT TO GRANT LICENSES, ...  SOLELY AND
ONLY TO THE EXTENT AND FOR THE USES HEREINAFTER SPECIFIED AND DEFINED,
A PERSONAL, INDIVISIBLE, NON-TRANSFERABLE AND NON-EXCLUSIVE LICENSE TO
THE LICENSEE TO MANUFACTURE AT ITS FACTORY  ...  ; AND NOT ELSEWHERE
WITHOUT PREVIOUS WRITTEN PERMISSION OBTAINED FROM THE RADIO
CORPORATION, AND TO SELL ONLY FOR RADIO AMATEUR RECEPTION, RADIO
EXPERIMENTAL RECEPTION, AND RADIO BROADCAST RECEPTION THROUGHOUT THE
UNITED STATES AND ITS TERRITORIES OR DEPENDENCIES, LICENSED APPARATUS
SO MANUFACTURED BY THE LICENSEE,  ...  "  REASONABLY INTERPRETED, THIS
CONTRACT GRANTS THE RIGHT TO MAKE EVERYTHING DESCRIBED IN THE PATENTS;
THE SOLE LIMITATION ON THE RIGHT TO MAKE RELATES TO THE PLACE OF
MANUFACTURE.  THE CONTRACT GRANTS THE RIGHT TO SELL THE MANUFACTURED
ARTICLES WITH AN ATTEMPT BY NOTICE TO RESTRICT THEIR USE IN THE HANDS
OF OWNERS TO WHOM THEY ARE SOLD. 

FN5  ONE OF RESPONDENTS' OFFICIALS TESTIFIED:  "THESE THINGS, THESE
VACUUM TUBES AND THE CIRCUITS ON WHICH WE HAVE PATENTS, ARE USEFUL IN
VARIOUS OF THESE FIELDS AND APPLICABLE TO MANY FIELDS.  AND IF WE
GRANTED LICENSES NOT RESTRICTED TO ANY PARTICULAR FIELD, THE SAME
THINGS COULD BE USED IN THESE OTHER FIELDS."  THE INJUNCTION SUSTAINED
HERE WAS DECREED BY THE DISTRICT JUDGE ON THE BASIS OF HIS CONCLUSION
THAT THE AMPLIFIERS PUT TO COMMERCIAL USE BY PETITIONER COULD ALSO BE
USED "FOR EXPERIMENTAL OR RADIO AMATEUR USE" AS THE PATENTEE HAD
DESIRED.  16 F.SUPP.  293, 303.  THUS, IT APPEARS THAT THE VERY
AMPLIFIERS MADE AND SOLD TO PETITIONER WERE SUITABLE FOR ALL "FIELDS." 

FN6  "THE STATUTES RELATING TO PATENTS DO NOT PROVIDE FOR ANY SUCH
NOTICE AND IT CAN DERIVE NO AID FROM THEM."  MOTION PICTURE PATENTS CO.
CASE, SUPRA, 509; BAUER & CIE V. O'DONNELL, SUPRA; STRAUS CASE, SUPRA;
BOSTON STORE CASE, SUPRA; CARBICE CORPORATION V. AMERICAN PATENTS
CORP., 283 U.S. 27. 

FN7  HOBBIE V. JENNISON, SUPRA; KEELER CASE, SUPRA; STRAUS CASE,
SUPRA. 

FN8  CF., MORGAN ENVELOPE CO. V. ALBANY PAPER CO., SUPRA. 

FN9  THE NEGOTIATIONS FOR STIPULATION WERE AS FOLLOWS: 

"MR. NEAVE:  MR. DARBY, WILL YOU AGREE THAT IT IS COMMON PRACTICE
WHERE A PATENTED INVENTION IS APPLICABLE TO DIFFERENT USES, TO GRANT
WRITTEN LICENSES UNDER UNITED STATES PATENTS RESTRICTED TO ONE OR MORE
OF THE SEVERAL FIELDS OF USE, PERMITTING EXCLUSIVE OR NON-EXCLUSIVE USE
OF THE INVENTION BY THE LICENSEE IN ONE FIELD AND EXCLUDING ITS USE IN
ANOTHER FIELD? 

"MR. DARBY:  I DO NOT AGREE.  AS A MATTER OF FACT I BELIEVE THAT JUST
THE OPPOSITE OR THE CONTRARY IS TRUE." 

"MR. DARBY:  ...  MR. ASHTON CALLED ME UP AND TOLD ME THAT MR. W. H.
DAVIS HAD ENTERED INTO SUCH A STIPULATION IN THE INDEPENDENT WIRELESS
CASE, AND ASKED ME IF I WOULD DO THE SAME THING.  I TOLD HIM I COULD
NOT CONSCIENTIOUSLY, BECAUSE NOT ONLY COULD I NOT AGREE THAT THAT WAS
THE COMMON PRACTICE, BUT I KNOW I THOROUGHLY DISAGREE WITH (IT) WHETHER
IT WAS OR NOT.  IN OTHER WORDS I WAS CONFIDENT THAT WAS NOT THE COMMON
PRACTICE.  IN MY OWN CASE, I KNOW I WOULD NOT ALLOW MY OWN CLIENTS TO
DO IT, BECAUSE I DID NOT THINK IT WAS LEGAL." 

"MR. DARBY:  I AM WILLING TO STIPULATE IT, IF IT WILL BE OF ANY
ASSISTANCE TO MR. ASHTON, THAT IT IS, IF HE TELLS ME IT IS, THE COMMON
PRACTICE OF THE WESTERN ELECTRIC COMPANY AND THE RADIO CORPORATION TO
DO THAT." 

"MR. DARBY:  IT IS STIPULATED THAT IT IS COMMON PRACTICE WHERE A
PATENTED INVENTION IS APPLICABLE TO DIFFERENT USES, TO GRANT WRITTEN
LICENSES TO MANUFACTURERS UNDER UNITED STATES LETTERS PATENTS
RESTRICTED TO ONE OR MORE OF THE SEVERAL FIELDS OF USE PERMITTING THE
EXCLUSIVE OR NON-EXCLUSIVE USE OF THE INVENTION BY THE LICENSEE IN ONE
FIELD AND EXCLUDING ITS USE IN ANOTHER FIELD.  I STIPULATE THAT AND I
URGE, HOWEVER, OBJECTION TO ITS RECEIPT FOR ANY EVIDENTIAL PURPOSE, AS
IRRELEVANT AND IMMATERIAL WHAT THE COMMON PRACTICE IS, ON THE ISSUE OF
LAW AS TO WHETHER OR NOT IT IS LEGAL." 

FN10  MOTION PICTURE PATENTS CO. CASE, SUPRA, 516. 

FN11  SEE, "EMANCIPATION OF PATENTED ARTICLES," WALTER H. CHAMBERLIN,
6 ILL. LAW REVIEW, 357. 

FN12  BAUER & CIE CASE, SUPRA, 17. 

FN13  ID. 

MR. JUSTICE REED JOINS IN THIS DISSENT. 
..END :




















WELCH V. HENRY, 305 U.S. 134 


NO. 13.  ARGUED OCTOBER 13, 1938.  - DECIDED NOVEMBER 21, 1938.  - 226
WIS. 595 - 277 N.W. 183, AFFIRMED. 


1.  UNDER THE INCOME TAX LAW OF WISCONSIN IN FORCE IN 1933 AND SINCE,
THE AMOUNT OF DIVIDENDS RECEIVED BY A TAXPAYER FROM CORPORATIONS WHOSE
"PRINCIPAL BUSINESS" IS "ATTRIBUTABLE TO WISCONSIN," I.E., CORPORATIONS
WHICH THEMSELVES HAVE PAID A WISCONSIN INCOME TAX UPON 50% OR MORE OF
THEIR TOTAL NET INCOME, MAY BE DEDUCTED FROM GROSS INCOME ALONG WITH
OTHER DEDUCTIONS, IN COMPUTING HIS TAXABLE NET INCOME.  A TAXPAYER, IN
HIS RETURN FOR THE YEAR 1933, FILED IN MARCH, 1935, MADE THESE
DEDUCTIONS, THE AGGREGATE OF WHICH WAS SUCH THAT HE HAD NO TAXABLE
INCOME FOR THAT YEAR.  A YEAR LATER, A STATUTE WAS PASSED LAYING A TAX
ON ALL DIVIDENDS RECEIVED IN 1933 WHICH, WHEN RECEIVED, WERE DEDUCTIBLE
FROM GROSS INCOME.  THE TAXPAYER WAS THUS REQUIRED TO PAY A TAX OF $545
ON HIS DIVIDEND INCOME IN 1933.  HELD CONSISTENT WITH EQUAL PROTECTION
AND DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.  PP. 142, 146. 

2.  THE FACT THAT THE DIVIDENDS WERE TAXED AT A DIFFERENT RATE FROM
THAT APPLIED TO OTHER INCOME IN 1933 AND WERE GIVEN THE BENEFIT OF BUT
A SINGLE DEDUCTION OF $750, WHILE RECIPIENTS OF OTHER TYPES OF INCOME
IN THAT YEAR WERE PERMITTED TO DEDUCT SPECIFIED ITEMS OF INTEREST,
TAXES, BUSINESS LOSSES AND DONATIONS, DID NOT RENDER THE DIVIDEND TAX
REPUGNANT TO THE EQUAL PROTECTION CLAUSE.  P. 142. 

THE DIVIDENDS CONSTITUTED A CLASS OF UNTAXED INCOME, RECEIVED FROM A
SPECIFIED CATEGORY OF CORPORATIONS; AND THE LEGISLATURE COULD HAVE
CONCLUDED THAT A SUBSTANTIAL PART OF THIS INCOME HAD BORNE NO TAX
BURDEN AT ITS SOURCE IN THE EARNINGS OF THE CORPORATIONS, SINCE
CORPORATIONS WERE NOT REQUIRED TO PAY A TAX ON THAT PART OF THEIR
INCOME ALLOCABLE TO BUSINESS CARRIED ON OR PROPERTY LOCATED WITHOUT THE
STATE.  THE SELECTION OF SUCH INCOME FOR TAXATION AT RATES AND WITH
DEDUCTIONS NOT SHOWN TO BE UNRELATED TO AN EQUITABLE DISTRIBUTION OF
THE TAX BURDEN IS NOT A DENIAL OF THE EQUAL PROTECTION COMMANDED BY THE
FOURTEENTH AMENDMENT.  P. 143. 

3.  THE DISTRIBUTION OF A TAX BURDEN BY PLACING IT IN PART ON A
SPECIAL CLASS WHICH, BY REASON OF THE TAXING POLICY OF THE STATE, HAS
ESCAPED ALL TAXATION DURING THE TAXABLE PERIOD IS NOT A DENIAL OF EQUAL
PROTECTION; NOR IS THE TAX ANY MORE A DENIAL OF EQUAL PROTECTION
BECAUSE RETROACTIVE.  P. 144. 

4.  SO FAR AS EQUAL PROTECTION IS CONCERNED, THE VALIDITY OF
RETROACTIVE ALTERATION OF A TAX SCHEME MUST BE DETERMINED, AS IN THE
CASE OF ANY OTHER TAX, BY ASCERTAINING WHETHER THE THING TAXED FALLS
WITHIN A DISTINCT CLASS WHICH MAY RATIONALLY BE TREATED DIFFERENTLY
FROM OTHER CLASSES.  P. 145. 

5.  IN THE ABSENCE OF FACTS TENDING TO SHOW THAT THE TAXING ACT IS A
HOSTILE OR OPPRESSIVE DISCRIMINATION AGAINST THE RECIPIENTS OF
DIVIDENDS WHO HAVE HITHERTO ESCAPED ALL TAXATION OF THEM, IT DOES NOT
DENY EQUAL PROTECTION.  P. 146. 

6.  A TAX IS NOT NECESSARILY IN VIOLATION OF THE DUE PROCESS CLAUSE
BECAUSE RETROACTIVE.  IN EACH CASE IT IS NECESSARY TO CONSIDER THE
NATURE OF THE TAX AND THE CIRCUMSTANCES IN WHICH IT IS LAID BEFORE IT
CAN BE SAID THAT ITS RETROACTIVE APPLICATION IS SO HARSH AND OPPRESSIVE
AS TO TRANSGRESS THE CONSTITUTIONAL LIMITATION.  P. 146. 

CASES DISTINGUISHED IN WHICH THIS COURT HAS HELD INVALID THE TAXATION
OF GIFTS MADE AND COMPLETELY VESTED BEFORE THE ENACTMENT OF THE TAXING
STATUTE, DECISION THERE HAVING BEEN RESTED UPON THE GROUND THAT THE
NATURE OR AMOUNT OF THE TAX COULD NOT REASONABLY HAVE BEEN ANTICIPATED
BY THE TAXPAYER AT THE TIME OF THE PARTICULAR VOLUNTARY ACT WHICH THE
STATUTE LATER MADE THE TAXABLE EVENT.  UNLIKE THE CASE OF GIFTS WHICH
THE DONOR MIGHT HAVE REFRAINED FROM MAKING HAD HE ANTICIPATED THE TAX,
IT CANNOT BE ASSUMED THAT STOCKHOLDERS WOULD REFUSE TO RECEIVE
DIVIDENDS EVEN IF THEY KNEW THAT THE RECEIPT WOULD LATER BE SUBJECTED
TO A NEW TAX OR TO THE INCREASE OF AN OLD ONE, AND THE OBJECTION TO THE
PRESENT TAX IS ADDRESSED ONLY TO THE PARTICULAR INCONVENIENCE OF THE
TAXPAYER IN BEING CALLED UPON, AFTER THE CUSTOMARY TIME FOR LEVY AND
PAYMENT OF THE TAX HAS PASSED, TO BEAR A GOVERNMENTAL BURDEN OF WHICH
IT IS SAID HE HAD NO WARNING AND WHICH HE DID NOT ANTICIPATE. 

7.  TAXPAYERS CAN NOT JUSTLY ASSERT SURPRISE OR COMPLAIN OF ARBITRARY
ACTION IN THE RETROACTIVE APPORTIONMENT OF TAX BURDENS TO INCOME WHEN
THIS IS DONE BY THE LEGISLATURE AT THE FIRST OPPORTUNITY AFTER
KNOWLEDGE OF THE NATURE AND AMOUNT OF THE INCOME IS AVAILABLE.  P.
149. 

IN THE PRESENT CASE THE RETURNS OF INCOME RECEIVED IN 1933 WERE FILED
AND BECAME AVAILABLE IN MARCH, 1934.  THE NEXT SUCCEEDING SESSION OF
THE LEGISLATURE AT WHICH TAX LEGISLATION COULD BE CONSIDERED WAS IN
1935, WHEN THE CHALLENGED STATUTE WAS PASSED.  P. 150. 

WELCH V. HENRY ET AL. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

APPEAL FROM A JUDGMENT SUSTAINING AN INCOME TAX, THE AMOUNT OF WHICH
THE PRESENT APPELLANT PAID UNDER PROTEST AND SUED TO RECOVER.  THE
TRIAL COURT HAD AT FIRST OVERRULED A DEMURRER TO THE COMPLAINT.  THE
RULING WAS REVERSED BY THE SUPREME COURT OF WISCONSIN ON A FIRST
APPEAL.  THE TRIAL COURT THEN SUSTAINED A DEMURRER TO AN AMENDED
COMPLAINT.  JUDGMENT OF THE SUPREME COURT AFFIRMING THIS ACTION IS THE
SUBJECT OF THE PRESENT APPEAL TO THIS COURT. 

THERE WAS NO REASONABLE GROUND FOR CLASSIFYING THE RECIPIENTS OF
DIVIDENDS SEPARATELY AND SUBJECTING THEM TO A SEPARATE AND DISTINCT
TAX. 

IF THIS SO-CALLED "EXEMPTION" FROM NORMAL TAX CAN BE MADE THE BASIS
OF A CLASSIFICATION AT ALL, THERE SHOULD BE SOME RELATION BETWEEN THE
AMOUNT OF TAXES EXACTED FROM THIS CLASS AND THE BENEFITS WHICH HAVE
ACCRUED TO THEM BY REASON OF HAVING BEEN ALLOWED THE DEDUCTION FOR
PURPOSES OF NORMAL TAX, PARTICULARLY WHEN THE EXEMPTION IS THE ONLY
BASIS FOR THE CLASSIFICATION. 

THE TAX HERE INVOLVED IS MEASURED BY NOTHING EXCEPT THE AMOUNT OF
DIVIDENDS RECEIVED AND BEARS NOT THE SLIGHTEST RELATION TO THE NET
INCOME OF THE TAXPAYER FROM ALL SOURCES, WHICH IS THE SUBJECT OF THE
NORMAL TAX, OR TO THE AMOUNT OF TAX HE WOULD HAVE BEEN REQUIRED TO PAY
HAD DIVIDENDS BEEN INCLUDED IN THE DETERMINATION OF HIS INCOME SUBJECT
TO NORMAL TAX.  WHATEVER MAY BE SAID IN FAVOR OF THIS CLASSIFICATION
FOR PURPOSES OF A TAX MEASURED BY INCLUDING DIVIDENDS IN TAXABLE INCOME
DURING 1933, THERE IS GROSS DISCRIMINATION IN SUBJECTING THAT CLASS TO
A TAX MEASURED ONLY BY THE AMOUNT OF DIVIDENDS REGARDLESS OF THE EFFECT
OF OTHER TRANSACTIONS OF THE TAXPAYER UPON HIS TAXABLE INCOME, OR UPON
THE AMOUNT OF NORMAL TAX WHICH HE WOULD HAVE BEEN REQUIRED TO PAY HAD
THE DIVIDENDS BEEN INCLUDED IN HIS INCOME SUBJECT TO SUCH NORMAL TAX. 
THIS MANIFESTLY RESULTS IN GREAT DISCREPANCIES BETWEEN THE AMOUNT OF
DIVIDEND TAX AND THE NORMAL TAX UPON A LIKE AMOUNT OF NET INCOME.  THE
APPELLANT, WHO RECEIVED DIVIDENDS OF $12,156.10, WAS CALLED UPON FOR A
TAX OF $556.84.  NORMAL INCOME TAX AND SURTAX UPON THAT SAME AMOUNT OF
NET INCOME WOULD HAVE BEEN $468.42 LESS HIS EXEMPTION. 

IT IS TRUE, AS WAS POINTED OUT BY THE SUPREME COURT OF WISCONSIN,
THAT THIS IS NOT NECESSARILY A FAIR COMPARISON, BECAUSE THE TAXPAYER'S
DIVIDENDS MIGHT COME IN ON TOP OF OTHER INCOME AND, IF SUBJECTED TO
NORMAL TAX, RESULT IN A HIGHER TAX THAN THE TAX ACTUALLY IMPOSED. 
HERE, HOWEVER, AND IN THE CASE OF MANY OTHER TAXPAYERS, THE EXISTENCE
OF BUSINESS LOSSES, THE PAYMENT OF TAXES AND INTEREST, AND OTHER
DEDUCTIONS, GIVE THE TAXPAYER A NET LOSS FOR PURPOSES OF NORMAL TAX, NO
PART OF WHICH IS ALLOWED TO BE SET OFF AGAINST THE TAX NOW IMPOSED. 

THE TRUE NATURE OF THE TAX, AS A PROPERTY TAX, OR AN EXCISE, MAKES IT
ARBITRARY AND DISCRIMINATORY BECAUSE OF THE GRADUATED RATES. 

THE TAX IS NOT ONE MEASURED BY A BALANCING OF THE NET RESULTS OF ALL
THE TAXPAYER'S BUSINESS TRANSACTIONS FOR THE YEAR.  IT IS NOT A TAX
UPON INCOME, MEANING THEREBY THE GAIN OR PROFIT TO THE TAXPAYER FROM
ALL OF HIS BUSINESS TRANSACTIONS AS THAT TERM IS USED, FOR INSTANCE, IN
CONNECTION WITH FEDERAL INCOME TAX OR THE WISCONSIN NORMAL INCOME TAX. 
IT IS NOT LAID UPON WHAT REMAINS WHEN "ALL EXPENSES ARE PAID AND LOSSES
ADJUSTED, AND AFTER THE RECIPIENT OF THE INCOME IS FREE TO USE IT AS HE
CHOOSES."  PECK & CO. V. LOWE, 247 U.S. 165, 175; REDFIELD V. FISHER,
135 ORE.  180; SHAFFER V. CARTER, 252 U.S. 37, 51; NEW YORK EX REL.
COHN V. GRAVES, 300 U.S. 308, 313. 

EVEN IF IT IS TRUE THAT THE GROSS INCOME FROM DIVIDENDS MAY BE
CONSIDERED AS NET INCOME, THE FACT REMAINS THAT WHEN YOU MEASURE THE
TAX BY RECEIPTS, WHETHER GROSS OR NET, FROM SOME PARTICULAR SOURCE, YOU
ARE TAXING SOMETHING OTHER THAN THE NET INCOME OF THE TAXPAYER FROM ALL
HIS ACTIVITIES DURING THE TAXABLE YEAR.  UNITED STATES V. HUDSON, 299
U.S. 498, DISTINGUISHED. 

WHEN THE REAL NATURE AND EFFECT OF THE TAX ARE CONSIDERED, IT IS TO
ALL PRACTICAL INTENTS AND PURPOSES A PROPERTY TAX.  THERE IS ONLY ONE
MEASURE OF IT, THE AMOUNT OF DIVIDENDS RECEIVED BY THE TAXPAYER FROM
STOCK.  TO PICK OUT THIS ONE SOURCE OF RECEIPTS AND LEVY A TAX UPON
THEM IS TO DIRECTLY TAX THE PROPERTY FROM WHICH THE RECEIPTS ARE
SECURED. 

IT IS ASSUMED THAT THERE MAY BE A VALID CLASSIFICATION OF PROPERTY
FOR PURPOSES OF TAXATION, BUT THE APPLICATION TO THE PROPERTY IN THAT
CLASS OF VARYING RATES RESULTS IN AN INDEFENSIBLE DISCRIMINATION.  THE
TAXPAYER WHO OWNS A THOUSAND SHARES OF STOCK AND RECEIVES THE DIVIDENDS
THEREON, BY THAT FACT ALONE IS REQUIRED TO PAY A GREATER NUMBER OF
DOLLARS PER SHARE OWNED THAN ANOTHER TAXPAYER WHO OWNS BUT A HUNDRED
SHARES OF THAT SAME STOCK.  STEWART DRY-GOODS CO. V. LEWIS, 294 U.S.
550. 

THE CASE FOR THE CONSTITUTIONALITY OF THIS TAX IS NOT IMPROVED BY
CONSIDERING IT AS AN EXCISE TAX.  IT IS A TAX WHICH BEARS NO RELATION
TO THE ABILITY OF THE TAXPAYER TO PAY OR TO HIS NET INCOME FROM ALL
SOURCES.  IT IS A TAX UPON THE RECEIPTS, WHETHER GROSS OR NET, FROM A
PARTICULAR SOURCE.  SCHUSTER V. HENRY, 218 WISC.  506. 

THE RETROACTIVE EFFECT OF THE TAX RENDERS IT ARBITRARY AND
DISCRIMINATORY. 

IT PURPORTS TO ASSESS A TAX BASED UPON SOMETHING THAT HAPPENED IN THE
SECOND PRECEDING YEAR AND GOES MUCH FARTHER IN THAT REGARD THAN ANY
SUCH TAXING MEASURES THAT HAVE COME TO OUR ATTENTION.  DISTINGUISHING:
FLORIDA CENTRAL R. CO. V. REYNOLDS, 183 U.S. 471; HECHT V. MALLEY, 265
U.S. 144; FLINT V. STONE TRACY CO., 220 U.S. 107.  IT IS SIMPLY A TAX
AUTHORIZED AND LEVIED DURING 1935 UPON DIVIDENDS WHICH UNDER THE LONG
EXISTING POLICY OF THE STATE HAD NOT BEEN SUBJECTED TO TAX AT ALL AT
THE TIME THEY WERE RECEIVED. 

ITS RETROSPECTIVE OPERATION ACCENTUATES THE DISCRIMINATORY NATURE OF
THE TAX.  EVEN IF IT WERE ENTIRELY PROPER TO CLASSIFY RECIPIENTS OF
DIVIDENDS IN A SEPARATE CLASS AND SUBJECT THEM TO A SEPARATE AND
DISTINCT TAX, IT WOULD NOT FOLLOW THAT IT WOULD LIKEWISE BE PROPER TO
CONSTITUTE A SEPARATE CLASS COMPOSED OF THOSE WHO HAD RECEIVED
DIVIDENDS IN THE PAST. 

THE PRESENT TAX WAS IMPOSED IN 1935 UPON DIVIDENDS RECEIVED IN 1933. 
DURING 1933, THE TAXPAYER HAD NO INTIMATION THAT HE WOULD BE CALLED
UPON FOR A TAX OUT OF THEM.  HE FILED HIS RETURN IN MARCH OF 1934
REPORTING THE RECEIPT OF THESE DIVIDENDS AND STILL NO TAX WAS DEMANDED
FROM HIM ON ACCOUNT THEREOF.  THE ENTIRE YEAR 1934 WENT BY AND STILL NO
TAX WAS DEMANDED.  IN THE MEANTIME HIS ABILITY TO PAY HAD BEEN
SUBJECTED TO THE RESULTS OF WHATEVER BUSINESS TRANSACTIONS HE HAD
DURING 1934.  IN MARCH OF 1935 THE STATE CHANGED ITS MIND AND TAXED
THESE 1933 DIVIDENDS:  "IF INCOME FROM DIVIDENDS RECEIVED IN 1933 WERE
PROPERLY SUBJECT TO TAXATION WHY NOT THOSE OF 1932 OR 1931?  WHY NOT GO
BACK TO 1929 WHEN DIVIDENDS WERE MANY AND LARGE, INSTEAD OF 1933, WHEN
THEY WERE FEW AND SMALL?"  (FOWLER, J., DISSENTING, 223 WISC.  319,
332.) 

DISTINGUISHING:  MILLIKEN V. UNITED STATES, 283 U.S. 15; UNITED
STATES V. HUDSON, 299 U.S. 498.  RETROACTIVITY OF THE TAXING STATUTE TO
THAT EXTENT AND OVER THAT PERIOD OF TIME IS IN ITSELF ENOUGH TO VIOLATE
THE FEDERAL CONSTITUTION.  NICHOLS V. COOLIDGE, 274 U.S. 531, 542;
BLODGETT V. HOLDEN, 275 U.S. 142; UNTERMYER V. ANDERSON, 276 U.S. 440;
HELVERING V. HELMHOLZ, 296 U.S. 93; WHITE V. POOR, 296 U.S. 98;
COOLIDGE V. LONG, 282 U.S. 582. 

IN SETTING UP AS A TEST, THAT THE LEGISLATURE CAN GO BACK "TO THE
MOST RECENT YEAR FOR WHICH THEY HAVE RETURNS FURNISHING A BASIS UPON
WHICH TO ESTIMATE THE TOTAL RETURN OF THE TAX TO THE STATE," THE COURT
BELOW HAS SUBSTITUTED THE CONVENIENCE OF THE STATE FOR THE RIGHTS OF
THE TAXPAYER AS THE STANDARD TO BE COMPLIED WITH.  THE RETURNS REFERRED
TO WERE APPARENTLY THE RETURNS FOR THE PURPOSE OF DETERMINING NORMAL
INCOME TAX WHICH ALL WISCONSIN TAXPAYERS ARE REQUIRED TO FILE ON THE
15TH DAY OF MARCH IN EACH YEAR.  THE RETURNS COVERING INCOME FOR 1934
WERE DUE ON MARCH 15, 1935.  WISCONSIN STATUTES, SEC. 71.09(4). 
MARCH, 1935, THE DAY BEFORE THE RETURNS COVERING INCOME FOR 1934 WERE
DUE.  IT WAS PUBLISHED AND BECAME EFFECTIVE MARCH 27TH, TWELVE DAYS
AFTER THE RETURNS WERE DUE.  UNDER THE RULE FIXED BY THE COURT THIS
TAX, MERELY BECAUSE OF ITS RETROACTIVE FEATURES, WOULD HAVE BEEN
INVALID HAD IT BEEN PASSED THE DAY AFTER IT WAS APPROVED. 

IT IS APPARENT THAT IF YOU GO BACK FAR ENOUGH WITH A RETROACTIVE TAX,
YOU MUST COME TO A POINT WHERE THERE IS SO LITTLE RELATION BETWEEN THE
INCOME DURING THE PERIOD INVOLVED AND THE TAXPAYER'S ABILITY TO PAY, OR
ANY OTHER REASONABLE GROUND FOR DEMANDING A TAX, THAT THE EFFECT IS AN
ARBITRARY IMPOSITION WHICH IS BEYOND THE LEGISLATURE'S POWER.  THAT
POINT HAS BEEN REACHED WHEN THE LEGISLATURE PURPORTS TO IMPOSE A TAX
UPON RECEIPTS FOR THE SECOND PRECEDING YEAR, A PERIOD FOR WHICH TAXES
HAVE ALREADY BEEN LEVIED AND PAID. 

IT IS DIFFICULT TO SEE HOW THE TAX IS ANYTHING BUT A PROPERTY TAX
UPON THE RECEIPTS THEMSELVES.  WHEN THE DIVIDENDS REACHED THE
TAXPAYER'S HANDS BY TRANSACTIONS UPON WHICH THE STATE WAS NOT THEN
CLAIMING ANY TAX, THEY BECAME SO MUCH PROPERTY IN HIS POSSESSION AND NO
DIFFERENT FROM OTHER DOLLARS IN THE HANDS OF OTHER TAXPAYERS THAT HAD
COME IN SOME OTHER MANNER.  THE SINGLING OUT OF THIS PROPERTY IN THE
HANDS OF THE APPELLANT FOR TAXATION WHEN OTHER DOLLARS WERE NOT TAXED
IS AN ARBITRARY DISCRIMINATION. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS THE QUESTION WHETHER THE ACT OF THE WISCONSIN
LEGISLATURE OF MARCH 27, 1935, WHICH IMPOSED A TAX ON CORPORATE
DIVIDENDS RECEIVED BY APPELLANT IN 1933 AT RATES DIFFERENT FROM THOSE
APPLICABLE IN THAT YEAR TO OTHER TYPES OF INCOME AND WITHOUT DEDUCTIONS
WHICH WERE ALLOWED IN COMPUTING THE TAX ON OTHER INCOME, INFRINGES THE
EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT. 

THE STATUTE OF WISCONSIN IN FORCE IN 1933 AND SINCE IMPOSES A TAX ON
NET INCOME AT GRADUATED RATES.  WISCONSIN STAT. 1933, C. 71. 
APPELLANT, A RESIDENT OF WISCONSIN, RECEIVED IN 1933 GROSS INCOME OF
$13,383.26, OF WHICH $12,156.10 WAS DIVIDENDS RECEIVED FROM
CORPORATIONS WHOSE "PRINCIPAL BUSINESS" WAS "ATTRIBUTABLE TO WISCONSIN"
WITHIN THE MEANING OF THE TAXING STATUTE.  BY SEC. 71.04(4), (4),
WISCONSIN STAT. 1933,  FN1  SUCH DIVIDENDS WERE DEDUCTIBLE FROM GROSS
INCOME IN COMPUTING NET TAXABLE INCOME, TOGETHER WITH OTHER ITEMS,
INCLUDING TAXES, INTEREST PAID, BUSINESS EXPENSES, LOSSES FROM THE SALE
OF SECURITIES, AND DONATIONS, AGGREGATING, IN THE CASE OF APPELLANT,
$11,161.97, SO THAT HE HAD NO TAXABLE NET INCOME FOR THE YEAR 1933. 

PETITIONER'S INCOME TAX RETURN WAS DUE AND FILED MARCH 15, 1934.  A
YEAR LATER C. 15 OF THE LAWS OF WISCONSIN FOR 1935, EFFECTIVE MARCH 27,
1935, LAID NEW TAXES FOR THE YEARS 1933 AND 1934 UPON VARIOUS TAXABLE
SUBJECTS.  SECTION 6, WITH WHICH WE ARE ALONE CONCERNED, IMPOSED A
GRADUATED TAX, WITH NO DEDUCTION EXCEPT THE SUM OF $750, ON ALL
DIVIDENDS RECEIVED IN 1933 WHICH, WHEN RECEIVED, WERE DEDUCTIBLE FROM
GROSS INCOME UNDER SEC. 71.04(4).  THE STATUTE DECLARED THAT THE LEVY
WAS AN EMERGENCY TAX TO PROVIDE REVENUE FOR RELIEF PURPOSES AND
DIRECTED THAT THE PROCEEDS SHOULD BE PAID INTO THE STATE TREASURY TO BE
USED FOR "UNEMPLOYMENT RELIEF PURPOSES."  APPELLANT PAID THE TAX,
AMOUNTING TO $545.71, UNDER PROTEST, ON MAY 13, 1935, AND BROUGHT THE
PRESENT SUIT TO COMPEL ITS RESTITUTION AS EXACTED IN VIOLATION OF THE
STATE CONSTITUTION AND THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF
THE FOURTEENTH AMENDMENT.  FROM THE JUDGMENT OF THE SUPREME COURT OF
WISCONSIN SUSTAINING THE TAX, 226 WIS. 595; 277 N.W. 183, THE CASE
COMES HERE ON APPEAL.  SEC. 237 OF THE JUDICIAL CODE, 28 U.S.C. SEC.
344. 

FIRST.  APPELLANT ASSAILS THE STATUTE AS A DENIAL OF EQUAL PROTECTION
BECAUSE THE DIVIDENDS WHICH IT SELECTED FOR TAXATION AS A SPECIAL CLASS
WERE SUBJECTED RATABLY TO A TAX BURDEN DIFFERENT FROM THAT BORNE BY
OTHER TYPES OF INCOME FOR THE SAME YEAR BY REASON OF THE FACT THAT THE
DIVIDENDS WERE TAXED AT A DIFFERENT RATE FROM THAT APPLIED TO OTHER
INCOME AND WERE GIVEN THE BENEFIT OF BUT A SINGLE DEDUCTION OF $750,
WHILE RECIPIENTS OF OTHER TYPES OF INCOME IN THAT YEAR WERE PERMITTED
TO DEDUCT SPECIFIED ITEMS OF INTEREST, TAXES, BUSINESS LOSSES AND
DONATIONS.  IT IS NOT CONTENDED THAT THE RECEIPT OF DIVIDENDS FROM
CORPORATIONS IS NOT SUBJECT TO TAX, OR THAT APART FROM THE RETROACTIVE
APPLICATION OF THE TAX THEY COULD NOT BE INCLUDED IN GROSS INCOME FOR
THE PURPOSE OF ARRIVING AT NET TAXABLE INCOME, BUT IT IS INSISTED THAT
DISPARITIES IN THE TAX BURDENS WHICH MAY RESULT FROM THE DIFFERENT
RATES AND DEDUCTIONS INFRINGE THE CONSTITUTIONAL IMMUNITY. 

WISCONSIN INCOME TAX LEGISLATION HAS FROM THE BEGINNING TREATED
DIVIDENDS RECEIVED FROM CORPORATIONS DERIVING A SUBSTANTIAL PART OF
THEIR INCOME FROM BUSINESS CARRIED ON WITHIN THE STATE, ON WHICH THE
CORPORATIONS HAVE PAID A TAX TO THE STATE, AS A DISTINCT CLASS OF
INCOME FOR TAX PURPOSES.  AT FIRST COMPLETE TAX IMMUNITY WAS GRANTED TO
THEM.  SEC. 1, C. 658, LAWS OF WISCONSIN, 1911.  LATER THE IMMUNITY WAS
ALLOWED RATABLY IN THE SAME PROPORTION THAT THE INCOME OF THE
CORPORATION HAD BEEN SUBJECTED TO STATE INCOME TAX.  SEC. 1, C. 318,
LAWS OF WISCONSIN, 1923.  AND, FINALLY, BY AMENDMENT ADOPTED IN 1927
FN2  AND IN FORCE IN 1933 COMPLETE IMMUNITY OF DIVIDENDS FROM INCOME
TAX WAS ALLOWED IF 50% OR MORE OF THE TOTAL NET INCOME OF THE
CORPORATION PAYING THEM WAS INCLUDED IN THE COMPUTATION OF THE
WISCONSIN TAX ON CORPORATE INCOME.  FN3    WHEN IN 1935 THE STATE WAS
CONFRONTED WITH THE NECESSITY OF RAISING REVENUE TO MEET THE DEMAND FOR
UNEMPLOYMENT RELIEF, AND OF DISTRIBUTING THE COST AMONG ITS TAXPAYERS,
THE LEGISLATURE FOUND ONE CLASS OF UNTAXED INCOME, DIVIDENDS RECEIVED
FROM A SPECIFIED CATEGORY OF CORPORATIONS.  IT ALSO COULD HAVE
CONCLUDED THAT A SUBSTANTIAL PART OF THIS INCOME HAD BORNE NO TAX
BURDEN AT ITS SOURCE IN THE EARNINGS OF THE CORPORATIONS, SINCE, BY
SEC. 71.02(3)(D), (D), CORPORATIONS ARE NOT REQUIRED TO PAY A TAX ON
THAT PART OF THEIR INCOME ALLOCABLE TO BUSINESS CARRIED ON OR PROPERTY
LOCATED WITHOUT THE STATE. 

WE THINK THAT THE SELECTION OF SUCH INCOME FOR TAXATION AT RATES AND
WITH DEDUCTIONS NOT SHOWN TO BE UNRELATED TO AN EQUITABLE DISTRIBUTION
OF THE TAX BURDEN IS NOT A DENIAL OF THE EQUAL PROTECTION COMMANDED BY
THE FOURTEENTH AMENDMENT.  IT CANNOT BE DOUBTED THAT THE RECEIPT OF
DIVIDENDS FROM A CORPORATION IS AN EVENT WHICH MAY CONSTITUTIONALLY BE
TAXED EITHER WITH OR WITHOUT DEDUCTIONS, LYNCH V. HORNBY, 247 U.S. 339;
SEE HELVERING V. INDEPENDENT LIFE INS. CO., 292 U.S. 371, 381, EVEN
THOUGH THE CORPORATE INCOME WHICH IS THEIR SOURCE HAS ALSO BEEN TAXED. 
SEE TENNESSEE V. WHITWORTH, 117 U.S. 129, 136; KLEIN V. BOARD OF TAX
SUPERVISORS, 282 U.S. 19, 23; COLGATE V. HARVEY, 296 U.S. 404, 420. 
THE FACT THAT THE DIVIDENDS OF CORPORATIONS WHICH HAVE TO SOME EXTENT
BORNE THE BURDEN OF STATE TAXATION CONSTITUTE A DISTINCT CLASS FOR
PURPOSES OF TAX EXEMPTION, COLGATE V. HARVEY, SUPRA; COMPARE
TRAVELLERS' INSURANCE CO. V. CONNECTICUT, 185 U.S. 364, 367; KIDD V.
ALABAMA, 188 U.S. 730; DARNELL V. INDIANA, 226 U.S. 390, 398, AND THAT
IN CONSEQUENCE SUCH DIVIDENDS HAVE BORNE NO TAX BURDEN, IS EQUALLY A
BASIS FOR THEIR SELECTION FOR TAXATION.  WATSON V. STATE COMPTROLLER,
254 U.S. 122, 124, 125; KLEIN V. BOARD OF TAX SUPERVISORS, SUPRA.  ANY
CLASSIFICATION OF TAXATION IS PERMISSIBLE WHICH HAS REASONABLE RELATION
TO A LEGITIMATE END OF GOVERNMENTAL ACTION.  TAXATION IS BUT THE MEANS
BY WHICH GOVERNMENT DISTRIBUTES THE BURDENS OF ITS COST AMONG THOSE WHO
ENJOY ITS BENEFITS.  AND THE DISTRIBUTION OF A TAX BURDEN BY PLACING IT
IN PART ON A SPECIAL CLASS WHICH BY REASON OF THE TAXING POLICY OF THE
STATE HAS ESCAPED ALL TAX DURING THE TAXABLE PERIOD IS NOT A DENIAL OF
EQUAL PROTECTION.  SEE WATSON V. COMPTROLLER, SUPRA, 125.  NOR IS THE
TAX ANY MORE A DENIAL OF EQUAL PROTECTION BECAUSE RETROACTIVE.  IF THE
1933 DIVIDENDS DIFFERED SUFFICIENTLY FROM OTHER CLASSES OF INCOME TO
ADMIT OF THE TAXATION, IN THAT YEAR, OF ONE WITHOUT THE OTHER, LAPSE OF
TIME DID NOT REMOVE THAT DIFFERENCE SO AS TO COMPEL EQUALITY OF
TREATMENT WHEN THE INCOME WAS TAXED AT A LATER DATE.  SELECTION THEN OF
THE DIVIDENDS FOR THE NEW TAXATION CAN HARDLY BE THOUGHT TO BE HOSTILE
OR INVIDIOUS WHEN THE BASIS OF SELECTION IS THE FACT THAT THE TAXED
INCOME IS OF THE CLASS WHICH HAS BORNE NO TAX BURDEN.  THE EQUAL
PROTECTION CLAUSE DOES NOT PRECLUDE THE LEGISLATURE FROM CHANGING ITS
MIND IN MAKING AN OTHERWISE PERMISSIBLE CHOICE OF SUBJECTS OF
TAXATION.  THE VERY FACT THAT THE DIVIDENDS WERE RELIEVED OF TAX, WHEN
THE NEED FOR REVENUE WAS LESS, IS BASIS FOR THE LEGISLATIVE JUDGMENT
THAT THEY SHOULD BEAR SOME OF THE ADDED BURDEN WHEN THE NEED IS
GREATER. 

NUMEROUS RETROACTIVE REVISIONS OF THE FEDERAL AND WISCONSIN REVENUE
LAWS, PRESENTLY TO BE DISCUSSED, HAVE IMPOSED TAXES ON SUBJECTS
PREVIOUSLY UNTAXED AND SHIFTED THE BURDEN OF OLD TAXES BY CHANGES IN
RATES, EXEMPTIONS AND DEDUCTIONS.  IT HAS NEVER BEEN THOUGHT THAT SUCH
CHANGES INVOLVE A DENIAL OF EQUAL PROTECTION IF THE NEW TAXES COULD
HAVE BEEN INCLUDED IN THE EARLIER ACT WHEN ADOPTED.  IF SOME
RETROACTIVE ALTERATION IN THE SCHEME OF A TAX ACT IS PERMISSIBLE, AS IS
CONCEDED, IT SEEMS PLAIN THAT VALIDITY, SO FAR AS EQUAL PROTECTION IS
CONCERNED, MUST BE DETERMINED, AS IN THE CASE OF ANY OTHER TAX, BY
ASCERTAINING WHETHER THE THING TAXED FALLS WITHIN A DISTINCT CLASS
WHICH MAY RATIONALLY BE TREATED DIFFERENTLY FROM OTHER CLASSES.  IF
SUCH CHANGES ARE FORBIDDEN IN THE NAME OF EQUAL PROTECTION,
LEGISLATURES IN LAYING NEW TAXES WOULD BE LEFT POWERLESS TO RECTIFY TO
ANY EXTENT A PREVIOUS DISTRIBUTION OF TAX BURDENS WHICH EXPERIENCE HAD
SHOWN TO BE INEQUITABLE, EVEN THOUGH CONSTITUTIONAL. 

THE BARE FACT THAT THE PRESENT TAX IS IMPOSED AT DIFFERENT RATES AND
WITH DIFFERENT DEDUCTIONS FROM THOSE APPLIED TO OTHER TYPES OF INCOME
DOES NOT ESTABLISH UNCONSTITUTIONALITY.  IT IS A COMMONPLACE THAT THE
EQUAL PROTECTION CLAUSE DOES NOT REQUIRE A STATE TO MAINTAIN RIGID
RULES OF EQUAL TAXATION, TO RESORT TO CLOSE DISTINCTIONS, OR TO
MAINTAIN A PRECISE SCIENTIFIC UNIFORMITY.  POSSIBLE DIFFERENCES IN TAX
BURDENS, NOT SHOWN TO BE SUBSTANTIAL, OR WHICH ARE BASED ON
DISCRIMINATION NOT SHOWN TO BE ARBITRARY OR CAPRICIOUS, DO NOT FALL
WITHIN THE CONSTITUTIONAL PROHIBITION.  LAWRENCE V. STATE TAX COMM'N,
286 U.S. 276, 284, 285, AND CASES CITED. 

JUST WHAT THE DIFFERENCES ARE IN THE TAX BURDENS CAST UPON THE TWO
TYPES OF INCOME BY THE DIVERGENCE IN RATES AND DEDUCTIONS APPLIED TO
THEM DOES NOT APPEAR.  THE BURDEN PLACED ON DIVIDENDS BY THE TAXING ACT
MIGHT HAVE BEEN GREATER IF THEY HAD BEEN INCLUDED IN GROSS INCOME AND
TAXED ON THE SAME BASIS AS OTHER INCOME SINCE, IN THAT CASE, THE
RESULTING INCREASE IN NET INCOME WOULD BE TAXED AT THE RATES APPLICABLE
TO THE HIGHER BRACKETS.  WHEN THE CHALLENGED STATUTE WAS ENACTED THERE
WERE AVAILABLE TO THE LEGISLATURE THE RETURNS FOR THE TAXABLE YEAR
SHOWING THE DIFFERENT CLASSES OF INCOME, THE APPLICATION TO THEM OF THE
EXISTING LAW, AND THE EFFECT OF EXISTING RATES AND DEDUCTIONS.  THERE
WERE ALSO DATA TO BE DERIVED FROM THE CORPORATION TAX RETURNS SHOWING
WHAT PART OF THE EXEMPTED DIVIDENDS HAD THEIR SOURCE IN CORPORATE
INCOME WHICH HAD BEEN TAXED TO THE CORPORATION AND WHAT PART WAS
ATTRIBUTABLE TO CORPORATE INCOME NOT SIMILARLY TAXED.  THE LEGISLATURE
WAS FREE TO TAKE INTO ACCOUNT ALL THESE FACTORS IN PRESCRIBING RATES
AND DEDUCTIONS TO BE APPLIED TO THE NEWLY TAXED DIVIDENDS SO AS TO
ARRIVE AT AN EQUITABLE DISTRIBUTION OF THE ADDED TAX BURDEN.  IN THE
ABSENCE OF ANY FACTS TENDING TO SHOW THAT THE TAXING ACT, IN ITS
PURPOSE OR EFFECT, IS A HOSTILE OR OPPRESSIVE DISCRIMINATION AGAINST
THE RECIPIENTS OF DIVIDENDS WHO HAVE BEEN HITHERTO FORTUNATE ENOUGH TO
ESCAPE ALL TAXATION WE CANNOT SAY THE TAXING STATUTE DENIES EQUAL
PROTECTION. 

SECOND.  THE OBJECTION CHIEFLY URGED TO THE TAXING STATUTE IS THAT IT
IS A DENIAL OF DUE PROCESS OF LAW BECAUSE IN 1935 IT IMPOSED A TAX ON
INCOME RECEIVED IN 1933.  BUT A TAX IS NOT NECESSARILY UNCONSTITUTIONAL
BECAUSE RETROACTIVE.  MILLIKEN V. UNITED STATES, 283 U.S. 15, 21; AND
CASES CITED.  TAXATION IS NEITHER A PENALTY IMPOSED ON THE TAXPAYER NOR
A LIABILITY WHICH HE ASSUMES BY CONTRACT.  IT IS BUT A WAY OF
APPORTIONING THE COST OF GOVERNMENT AMONG THOSE WHO IN SOME MEASURE ARE
PRIVILEGED TO ENJOY ITS BENEFITS AND MUST BEAR ITS BURDENS.  SINCE NO
CITIZEN ENJOYS IMMUNITY FROM THAT BURDEN, ITS RETROACTIVE IMPOSITION
DOES NOT NECESSARILY INFRINGE DUE PROCESS, AND TO CHALLENGE THE PRESENT
TAX IT IS NOT ENOUGH TO POINT OUT THAT THE TAXABLE EVENT, THE RECEIPT
OF INCOME, ANTEDATED THE STATUTE. 

IN THE CASES IN WHICH THIS COURT HAS HELD INVALID THE TAXATION OF
GIFTS MADE AND COMPLETELY VESTED BEFORE THE ENACTMENT OF THE TAXING
STATUTE, DECISION WAS RESTED ON THE GROUND THAT THE NATURE OR AMOUNT OF
THE TAX COULD NOT REASONABLY HAVE BEEN ANTICIPATED BY THE TAXPAYER AT
THE TIME OF THE PARTICULAR VOLUNTARY ACT WHICH THE STATUTE LATER MADE
THE TAXABLE EVENT.  NICHOLS V. COOLIDGE, 274 U.S. 531, 542; UNTERMEYER
V. ANDERSON, 276 U.S. 440, 445(CITING BLODGETT V. HOLDEN, 275 U.S. 142,
147); COOLIDGE V. LONG, 282 U.S. 582.  SINCE, IN EACH OF THESE CASES,
THE DONOR MIGHT FREELY HAVE CHOSEN TO GIVE OR NOT TO GIVE, THE
TAXATION, AFTER THE CHOICE WAS MADE, OF A GIFT WHICH HE MIGHT WELL HAVE
REFRAINED FROM MAKING HAD HE ANTICIPATED THE TAX, WAS THOUGHT TO BE SO
ARBITRARY AND OPPRESSIVE AS TO BE A DENIAL OF DUE PROCESS.  BUT THERE
ARE OTHER FORMS OF TAXATION WHOSE RETROACTIVE IMPOSITION CANNOT BE SAID
TO BE SIMILARLY OFFENSIVE, BECAUSE THEIR INCIDENCE IS NOT ON THE
VOLUNTARY ACT OF THE TAXPAYER.  AND EVEN A RETROACTIVE GIFT TAX HAS
BEEN HELD VALID WHERE THE DONOR WAS FOREWARNED BY THE STATUTE BOOKS OF
THE POSSIBILITY OF SUCH A LEVY, MILLIKEN V. UNITED STATES, SUPRA.  IN
EACH CASE IT IS NECESSARY TO CONSIDER THE NATURE OF THE TAX AND THE
CIRCUMSTANCES IN WHICH IT IS LAID BEFORE IT CAN BE SAID THAT ITS
RETROACTIVE APPLICATION IS SO HARSH AND OPPRESSIVE AS TO TRANSGRESS THE
CONSTITUTIONAL LIMITATION. 

PROPERTY TAXES AND BENEFIT ASSESSMENTS OF REAL ESTATE, RETROACTIVELY
APPLIED, ARE NOT OPEN TO THE OBJECTION SUCCESSFULLY URGED IN THE GIFT
CASES.  SEE WAGNER V. BALTIMORE, 239 U.S. 207; SEATTLE V. KELLEHER, 195
U.S. 351; COMPARE CITIZENS NATIONAL BANK V. KENTUCKY, 217 U.S. 443,
454; BILLINGS V. UNITED STATES, 232 U.S. 261, 282.  SIMILARLY, A TAX ON
THE RECEIPT OF INCOME IS NOT COMPARABLE TO A GIFT TAX.  WE CAN NOT
ASSUME THAT STOCKHOLDERS WOULD REFUSE TO RECEIVE CORPORATE DIVIDENDS
EVEN IF THEY KNEW THAT THEIR RECEIPT WOULD LATER BE SUBJECTED TO A NEW
TAX OR TO THE INCREASE OF AN OLD ONE.  THE OBJECTION TO THE PRESENT TAX
IS OF A DIFFERENT CHARACTER AND IS ADDRESSED ONLY TO THE PARTICULAR
INCONVENIENCE OF THE TAXPAYER IN BEING CALLED UPON, AFTER THE CUSTOMARY
TIME FOR LEVY AND PAYMENT OF THE TAX HAS PASSED, TO BEAR A GOVERNMENTAL
BURDEN OF WHICH IT IS SAID HE HAD NO WARNING AND WHICH HE DID NOT
ANTICIPATE. 

ASSUMING THAT A TAX MAY ATTEMPT TO REACH EVENTS SO FAR IN THE PAST AS
TO RENDER THAT OBJECTION VALID, WE THINK THAT NO SUCH CASE IS PRESENTED
HERE.  FOR MORE THAN SEVENTY-FIVE YEARS IT HAS BEEN THE FAMILIAR
LEGISLATIVE PRACTICE OF CONGRESS IN THE ENACTMENT OF REVENUE LAWS TO
TAX RETROACTIVELY INCOME OR PROFITS RECEIVED DURING THE YEAR OF THE
SESSION IN WHICH THE TAXING STATUTE IS ENACTED, AND IN SOME INSTANCES
DURING THE YEAR OF THE PRECEDING SESSION.  SEE UNTERMEYER V. ANDERSON,
SUPRA, FOOTNOTE 1.  THESE STATUTES NOT ONLY INCREASED THE TAX BURDEN BY
LAYING NEW TAXES AND INCREASING THE RATES OF OLD ONES OR BOTH, BUT THEY
REDISTRIBUTED RETROACTIVELY THE TAX BURDENS IMPOSED BY PREEXISTING
LAWS.  THIS WAS NOTABLY THE CASE WITH THE "REVENUE ACT OF 1918,"
ENACTED FEBRUARY 24, 1919, 40 STAT. 1057, AND MADE APPLICABLE TO THE
CALENDAR YEAR 1918, WHICH CUT DOWN EXEMPTIONS AND DEDUCTIONS,
INCREASED, IN VARYING DEGREES, INCOME, EXCESS PROFITS AND CAPITAL STOCK
TAXES, ALTERED THE BASIS OF SURTAXES, AND INCREASED IN PROGRESSIVE
RATIO THE RATES APPLICABLE TO THE HIGHER BRACKETS.  SIMILARLY THE
SPECIAL MUNITION MANUFACTURER'S TAX, IMPOSED ON PROFITS DERIVED FROM
SALES OF MUNITIONS, ACT OF SEPTEMBER 8, 1916, C. 463, 39 STAT. 756,
780, WAS APPLIED TO THE TWELVE MONTHS ENDING DECEMBER 31, 1916.  CF.
CARBON STEEL CO. V. LEWELLYN, 251 U.S. 501; UNITED STATES V. ANDERSON,
269 U.S. 422, 435.  THE CONTENTION THAT THE RETROACTIVE APPLICATION OF
THE REVENUE ACTS IS A DENIAL OF THE DUE PROCESS GUARANTEED BY THE FIFTH
AMENDMENT HAS BEEN UNIFORMLY REJECTED.  STOCKDALE V. INSURANCE
COMPANIES, 20 WALL.  323, 331; RAILROAD CO. V. ROSE, 95 U.S. 78, 80;
FLINT V. STONE TRACY CO., 220 U.S. 107; BILLINGS V. UNITED STATES, 232
U.S. 261, 282; BRUSHABER V. UNION PACIFIC R. CO., 240 U.S. 1, 20; LYNCH
V. HORNBY, 247 U.S. 339, 343; LABELLE IRON WORKS V. UNITED STATES, 256
U.S. 377.  THE LIKE PRACTICE OF THE LEGISLATURE OF WISCONSIN HAS BEEN
APPROVED BY ITS COURTS.  FN4 

THE EQUITABLE DISTRIBUTION OF THE COSTS OF GOVERNMENT THROUGH THE
MEDIUM OF AN INCOME TAX IS A DELICATE AND DIFFICULT TASK.  IN ITS
PERFORMANCE EXPERIENCE HAS SHOWN THE IMPORTANCE OF REASONABLE
OPPORTUNITY FOR THE LEGISLATIVE BODY, IN THE REVISION OF TAX LAWS, TO
DISTRIBUTE INCREASED COSTS OF GOVERNMENT AMONG ITS TAXPAYERS IN THE
LIGHT OF PRESENT NEED FOR REVENUE AND WITH KNOWLEDGE OF THE SOURCES AND
AMOUNTS OF THE VARIOUS CLASSES OF TAXABLE INCOME DURING THE TAXABLE
PERIOD PRECEDING REVISION.  WITHOUT THAT OPPORTUNITY ACCOMMODATION OF
THE LEGISLATIVE PURPOSE TO THE NEED MAY BE SERIOUSLY OBSTRUCTED IF NOT
DEFEATED.  WE CANNOT SAY THAT THE DUE PROCESS WHICH THE CONSTITUTION
EXACTS DENIES THAT OPPORTUNITY TO LEGISLATURES; THAT IT WITHHOLDS FROM
THEM, MORE THAN IN THE CASE OF A PROSPECTIVE TAX, AUTHORITY TO
DISTRIBUTE THE INCREASED TAX BURDEN IN THE LIGHT OF EXPERIENCE AND IN
CONFORMITY WITH ACCEPTED NOTIONS OF THE REQUIREMENTS OF EQUAL
PROTECTION; OR THAT IN VIEW OF WELL ESTABLISHED LEGISLATIVE PRACTICE,
BOTH STATE AND NATIONAL, TAXPAYERS CAN JUSTLY ASSERT SURPRISE OR
COMPLAIN OF ARBITRARY ACTION IN THE RETROACTIVE APPORTIONMENT OF TAX
BURDENS TO INCOME AT THE FIRST OPPORTUNITY AFTER KNOWLEDGE OF THE
NATURE AND AMOUNT OF THE INCOME IS AVAILABLE.  AND WE THINK THAT THE
"RECENT TRANSACTIONS" TO WHICH THIS COURT HAS DECLARED A TAX LAW MAY BE
RETROACTIVELY APPLIED, COOPER V. UNITED STATES, 280 U.S. 409, 411, MUST
BE TAKEN TO INCLUDE THE RECEIPT OF INCOME DURING THE YEAR OF THE
LEGISLATIVE SESSION PRECEDING THAT OF ITS ENACTMENT. 

THE JOINT RESOLUTION OF CONGRESS OF JULY 4, 1864, NO. 77, 13 STAT.
417, IMPOSED AN ADDITIONAL TAX ON INCOMES EARNED DURING THE CALENDAR
YEAR 1863, THIS TAX BEING IMPOSED AFTER THE TAXES FOR THE YEAR HAD BEEN
PAID.  IN STOCKDALE V. INSURANCE COMPANIES, SUPRA, 331, MR. JUSTICE
MILLER SAID OF IT:  "THE RIGHT OF CONGRESS TO HAVE IMPOSED THIS TAX BY
A NEW STATUTE, ALTHOUGH THE MEASURE OF IT WAS GOVERNED BY THE INCOME OF
THE PAST YEAR, CANNOT BE DOUBTED.  ...  NO ONE DOUBTED THE VALIDITY OF
THE TAX OR ATTEMPTED TO RESIST IT."  THE ACT OF FEBRUARY 24, 1919, C.
18, TIT. 2, 40 STAT. 1057, 1058-1088, WHICH TAXED INCOMES FOR THE
CALENDAR YEAR 1918, WAS APPLIED WITHOUT QUESTION AS TO ITS
CONSTITUTIONALITY IN UNITED STATES V. ROBBINS, 269 U.S. 315, AND IN
OTHER CASES.    IN THE PRESENT CASE THE RETURNS OF INCOME RECEIVED IN
1933 WERE FILED AND BECAME AVAILABLE IN MARCH, 1934.  WISCONSIN STAT.
1933, SEC. 71.09(4).  THE NEXT SUCCEEDING SESSION OF THE LEGISLATURE AT
WHICH TAX LEGISLATION COULD BE CONSIDERED WAS IN 1935, WHEN THE
CHALLENGED STATUTE WAS PASSED.  BY SEC. 11, ART. IV; SEC. 4, ART. V, OF
THE WISCONSIN CONSTITUTION, AND SEC. 13.02 WISCONSIN STATUTES, 1935,
REGULAR SESSIONS OF THE LEGISLATURE ARE HELD IN EACH ODDNUMBERED YEAR. 
SPECIAL SESSIONS OF THE LEGISLATURE MAY BE HELD ON CALL OF THE
GOVERNOR, AT WHICH NO BUSINESS CAN BE TRANSACTED "EXCEPT AS SHALL BE
NECESSARY TO ACCOMPLISH THE SPECIAL PURPOSES FOR WHICH IT WAS
CONVENED."  A SPECIAL SESSION WAS CALLED BY THE GOVERNOR IN 1934, BUT
FOR PURPOSES UNRELATED TO TAXATION.  PROCLAMATIONS OF THE GOVERNOR OF
WISCONSIN DECEMBER 2, 28, 1933, JANUARY 18, 22, 30, 1934.  THUS THE
LEGISLATURE IN 1935, AT THE FIRST OPPORTUNITY AFTER THE TAX YEAR IN
WHICH THE INCOME WAS RECEIVED, MADE ITS REVISION OF THE TAX LAWS
APPLICABLE TO 1933 INCOME, AS DID CONGRESS IN THE JOINT RESOLUTION OF
JULY 4, 1864, COMMENTED ON IN STOCKDALE V. INSURANCE COMPANIES, SUPRA. 

WHILE THE SUPREME COURT OF WISCONSIN THOUGHT THAT THE PRESENT TAX
MIGHT "APPROACH OR REACH THE LIMIT OF PERMISSIBLE RETROACTIVITY," WE
CANNOT SAY THAT IT EXCEEDS IT.  AFFIRMED. 

FN1  SEC. 71.04(4) PERMITS THE DEDUCTION FROM GROSS INCOME OF
DIVIDENDS RECEIVED FROM CORPORATIONS WHOSE PRINCIPAL BUSINESS IS
ATTRIBUTABLE TO WISCONSIN; "  ...  ANY CORPORATION SHALL BE CONSIDERED
AS HAVING ITS PRINCIPAL BUSINESS ATTRIBUTABLE TO WISCONSIN IF FIFTY PER
CENT OR MORE OF THE ENTIRE NET INCOME OR LOSS OF SUCH CORPORATION  ...
(FOR THE YEAR PRECEDING THE PAYMENT OF SUCH DIVIDENDS) WAS USED IN
COMPUTING THE AVERAGE TAXABLE INCOME PROVIDED BY CHAPTER 71.  ...  " 

FN2  C. 539, SEC. 4, LAWS OF WISCONSIN OF 1927. 

FN3  SEE NOTE 1, SUPRA. 

FN4  INCOME TAX CASES (1912), 148 WIS. 456, 514; 134 N.W. 673; 135
N.W. 164; STATE EX REL. GLOBE TUBES CO. V. LYONS (1924), 183 WIS. 107,
124; 197 N.W. 578; CLIFFS CHEMICAL CO. V. WISCONSIN TAX COMM'N (1927),
193 WIS. 295, 302; 214 N.W. 447; WEST V. TAX COMM'N (1932), 207 WIS.
557, 562; 242 N.W. 165; VAN DYKE V. TAX COMM'N (1935), 217 WIS. 528;
295 N.W. 700. 

MR. JUSTICE ROBERTS, DISSENTING. 

THE CONSTITUTION OF WISCONSIN, ARTICLE VIII, SEC. 1, PROVIDES:
"TAXES MAY ALSO BE IMPOSED ON INCOMES, PRIVILEGES AND OCCUPATIONS,
WHICH TAXES MAY BE GRADUATED AND PROGRESSIVE, AND REASONABLE EXEMPTIONS
MAY BE PROVIDED."  PURSUANT TO THIS GRANT, THE STATE, SINCE 1911,  FN1
HAS HAD A STATUTE LEVYING A GENERAL INCOME TAX ON CORPORATIONS AND
INDIVIDUALS AT A GRADUATED RATE.  THE SYSTEM, WHICH IS ANALOGOUS TO
THAT WITH WHICH WE ARE FAMILIAR IN THE FEDERAL FIELD, HAS, LIKE THE
LATTER, BEEN AMENDED FROM TIME TO TIME IN DETAIL.  THE LAW AS IT STOOD
IN 1933 IS FOUND IN THE 1933 EDITION OF THE WISCONSIN STATUTES AS
CHAPTER 71.  THE TAX IS IMPOSED FOR ANNUAL PERIODS.  THE GROSS INCOME
OF A GIVEN YEAR INCLUDES RENTS, DIVIDENDS, WAGES, AND SALARIES, PROFITS
FROM THE TRANSACTION OF BUSINESS OR SALE OF PROPERTY AND ALL OTHER
GAINS, PROFITS, OR INCOME DERIVED FROM ANY SOURCE EXCEPT SUCH AS ARE
SPECIFICALLY EXEMPTED.  IN ASCERTAINING TAXABLE INCOME EACH TAXPAYER IS
ENTITLED TO DEDUCT FROM GROSS RECEIPTS WAGES, SALARIES, AND OTHER
EXPENSES OF CONDUCTING A BUSINESS, OCCUPATION, OR PROFESSION,
DEPRECIATION, ALSO COST OF PROPERTY SOLD.  IN ADDITION EACH IS
PERMITTED TO DEDUCT CERTAIN LOSSES INCURRED WITHIN THE YEAR NOT
COMPENSATED BY INSURANCE, INTEREST PAID ON INDEBTEDNESS, STATE AND
FEDERAL TAXES, CONTRIBUTIONS TO THE STATE OR ITS SUBDIVISIONS OR TO
CHARITABLE OBJECTS AND AMOUNTS PAID TO AN UNEMPLOYMENT RESERVE.  FN2
PENSIONS ARE EXEMPTED, AND A SPECIFIED AMOUNT MAY BE DEDUCTED FROM THE
TAX, WHEN ASCERTAINED, AS A PERSONAL EXEMPTION.  FN3  DIVIDENDS (WITH
EXCEPTIONS NOT MATERIAL) RECEIVED FROM CERTAIN CORPORATIONS FILING
INCOME TAX RETURNS UNDER THE LAW, AND PAYING INCOME TAX TO THE STATE,
ARE DEDUCTIBLE FROM GROSS INCOME.  FN4  WE WERE TOLD AT THE BAR THAT
THIS DEDUCTION HAD BEEN AUTHORIZED FOR MANY YEARS PRIOR TO 1933. 

THE APPELLANT, A RESIDENT OF WISCONSIN, ON OR ABOUT MARCH 15, 1934,
AS BY LAW REQUIRED, MADE A RETURN OF HIS INCOME FOR 1933 SHOWING HIS
GROSS INCOME AND TOOK DEDUCTIONS FOR INTEREST PAID, FOR LOSSES ON THE
SALE OF SECURITIES, FOR BUSINESS EXPENSES, FOR CHARITABLE
CONTRIBUTIONS, AND FOR DIVIDENDS RECEIVED FROM CERTAIN CORPORATIONS,
WITH THE RESULT THAT NO NET TAXABLE INCOME REMAINED.  WITHOUT THE
DEDUCTION OF THE DIVIDENDS HIS NET INCOME WOULD HAVE BEEN $2,221.39. 

WHEN THE WISCONSIN LEGISLATURE MET IN ITS REGULAR BIENNIAL SESSION IN
JANUARY 1935 IT WAS CONFRONTED BY A NEED FOR ADDITIONAL REVENUE TO MEET
THE STATE'S OBLIGATIONS.  THE CONDITION IS REFERRED TO AS AN EMERGENCY
BECAUSE THE NEED FOR ADDITIONAL FUNDS GREW OUT OF THE THEN CURRENT
RELIEF LOAD, BUT THE EMERGENCY WAS NO DIFFERENT THAN IF THE STATE HAD
FOUND ITSELF SHORT OF FUNDS FOR THE PAYMENT OF OFFICIAL SALARIES.  AS
THE SUPREME COURT OF WISCONSIN HAS SAID:  "EXPENSE FOR RELIEF OF THE
UNEMPLOYED IS ON NO DIFFERENT FOOTING THAN ANY OTHER GOVERNMENTAL
EXPENSE."  FN5 AND IT GOES WITHOUT SAYING THAT AN EMERGENCY DOES NOT
CREATE POWER BUT IS MERELY THE OCCASION FOR THE EXERCISE OF EXISTING
POWERS IN CONFORMITY TO CONSTITUTIONAL PRINCIPLES.  FN6 

WHAT THEN DID THE LEGISLATURE DO TO MEET THE DEMAND FOR PUBLIC
REVENUE?  IT ADOPTED A STATUTE EFFECTIVE MARCH 27, 1935.  FN7  BY SEC.
2 THIS ACT LAID AN INCOME TAX ADDITIONAL TO AND SEPARATE FROM THE
GENERAL INCOME TAX AT A GRADUATED RATE ON THE INCOME OF ALL
INDIVIDUALS, FOR THE YEAR 1934, WHICH WAS TO BE "ASSESSED, COLLECTED,
AND PAID IN THE SAME MANNER, UPON THE SAME INCOME AND SUBJECT TO THE
SAME REGULATIONS," AS PROVIDED "BY LAW FOR THE ASSESSMENT, COLLECTION
AND PAYMENT OF THE NORMAL INCOME TAX," WITH CERTAIN VARIATIONS.  ONE OF
THE VARIATIONS WAS THAT NO DEDUCTION WAS TO BE ALLOWED FOR THOSE
CORPORATE DIVIDENDS WHICH WERE DEDUCTIBLE UNDER SUBSECTION (4) OF SEC.
71.04 OF THE GENERAL LAW. 

TO JULY 1, 1937.  SECTION 4 PLACED ADDITIONAL LICENSE FEES FOR THE YEAR
1934 ON TELEPHONE COMPANIES.  SECTION 5 IMPOSED AN ADDITIONAL LICENSE
FEE FOR 1934 UPON ELECTRIC, GAS AND SIMILAR UTILITY COMPANIES. 

UNDER THE GENERAL LAW, A GRADUATED TAX OF ONE PER CENT. ON THE FIRST
TWO THOUSAND DOLLARS OF NET DIVIDEND INCOME, THREE PER CENT. ON THE
NEXT $3,000, AND SEVEN PER CENT. ON ALL ABOVE $5,000.  NET DIVIDEND
INCOME IS DEFINED AS GROSS DIVIDEND INCOME LESS $750.  THE TAX IS TO BE
ASSESSED, COLLECTED AND PAID IN THE SAME MANNER AS THE NORMAL INCOME
TAX FOR 1934.  UNDER THIS SECTION THE APPELLANT WAS REQUIRED TO MAKE
RETURN AND PAY ON SOME $12,000 OF THE DIVIDENDS WHICH HE HAD BEEN
PERMITTED TO DEDUCT FROM GROSS INCOME IN CALCULATING AND PAYING HIS
INCOME TAX FOR 1933 AND WAS ASSESSED THEREON $545.71, WHICH HE PAID
UNDER PROTEST AND BROUGHT THIS ACTION TO RECOVER. 

THE QUESTION IS WHETHER SEC. 6 TRANSGRESSES THE PROHIBITION OF THE
FOURTEENTH AMENDMENT.  THE SUPREME COURT OF WISCONSIN, ALTHOUGH STATING
THAT "WHILE THE PRESENT TAX MAY APPROACH OR REACH THE LIMIT OF
PERMISSIBLE RETROACTIVITY, IT DOES NOT EXCEED IT," SUSTAINED THE
STATUTE AS AGAINST CHALLENGE UNDER THE EQUAL PROTECTION AND DUE PROCESS
CLAUSES OF THE AMENDMENT.  FN8  I THINK THE STATUTE IS VIOLATIVE OF THE
GUARANTEES OF EQUAL PROTECTION AND DUE PROCESS. 

ONE MUST IGNORE THE REALITIES OF THE SITUATION IF HE APPROACHES A
DECISION OF THE CASE IN THE LIGHT OF THE EQUAL PROTECTION CLAUSE AS IF
THE STATUTE UNDER ATTACK WERE PROSPECTIVE IN OPERATION; OR, IN THE
LIGHT OF THE DUE PROCESS CLAUSE, AS IF THE STATUTE WERE A REVISION OF
AN EXISTING GENERAL INCOME TAX SYSTEM THERETOFORE IN FORCE.  THE
ILLEGAL DISCRIMINATION AND THE ARBITRARY CHARACTER OF THE ACT CONDEMN
IT UNDER THE EQUAL PROTECTION CLAUSE NOT BECAUSE IT SELECTS A
PARTICULAR CLASS OF CITIZENS FOR THE IMPOSITION OF THE TAX BUT BECAUSE,
IN SO DOING, IT REACHES BACK AND SINGLES OUT FOR A NEW AND WHOLLY
DIFFERENT SORT OF INCOME TAX THOSE FEW ONLY TO WHOM A SPECIFIC
DEDUCTION WAS ALLOWED IN THE GENERAL COMPUTATION OF THEIR TAXABLE
INCOME FOR THE YEAR 1933.  IT WILL NOT DO TO EXAMINE THE CLASSIFICATION
AS IF IT WERE THE DECLARATION OF A NEW POLICY OF TAXATION TO BE
OPERATIVE IN THE FUTURE.  NO MORE WILL IT DO TO SEPARATE THE
RETROACTIVE FEATURE OF THE LAW AND CONSIDER IT AS IF IT WERE A MERE
AMENDMENT OF A GENERAL INCOME TAX SYSTEM AS SUCH APPLICABLE TO ALL
INCOME OF ALL TAXPAYERS SUBJECT TO THE LAW AS IT STOOD AT THE DATE OF
THE AMENDMENT.  THE REASON FOR ALLOWING THE DEDUCTION IS PLAIN.  AS HAS
BEEN SAID IN THIS COURT:  "THE PURPOSE OF THE LEGISLATURE WAS SOLELY TO
PREVENT DOUBLE TAXATION BY THE STATE OF WISCONSIN, OF THE INCOME
RECEIVED BY INDIVIDUALS IN THE FORM OF DIVIDENDS."  FN9  THE SAME THING
MAY BE SAID AS TO THE REASON FOR OTHER ALLOWABLE DEDUCTIONS, AS, FOR
INSTANCE, OF TAXES PAID.  REASONS OF FAIRNESS AND PUBLIC POLICY MOVED
THE STATE TO ALLOW THE PERMITTED DEDUCTIONS FROM GROSS INCOME. 

IT READILY MAY BE CONCEDED THAT WISCONSIN IS, AND ALWAYS HAS BEEN,
FREE IN THE IMPOSITION OF AN INCOME TAX, FOR GOOD AND SUFFICIENT
REASON, TO TREAT THE RECIPIENTS OF DIVIDENDS ON A BASIS DIFFERENT FROM
THE RECIPIENTS OF OTHER SORTS OF INCOME.  THE STATE ALSO WAS FREE TO
REVOKE, ALTER, AND AMEND THE PROVISIONS FOR DEDUCTIONS AS ITS VIEWS OF
FAIRNESS AND POLICY MIGHT DICTATE.  THIS CASE PRESENTS NO SUCH
SITUATION.  AFTER THE TAXPAYERS HAD RETURNED AND PAID THEIR TAX UNDER
THE EXISTING SYSTEM AND ACCORDING TO THE LONG ESTABLISHED PUBLIC POLICY
OF THE STATE, THE STATE SOUGHT ADDITIONAL REVENUES.  INSTEAD OF LEVYING
AN EXACTION UPON THE CITIZENS GENERALLY OR CERTAIN CLASSES OF CITIZENS,
THE STATE WENT BACK AND SOUGHT TO TAX A SMALL CLASS OF INCOME TAX
PAYERS BY REASON OF THE PURELY ARBITRARY AND ADVENTITIOUS FACT THAT
THEY HAD BEEN ALLOWED A PARTICULAR DEDUCTION IN A PAST YEAR.  IT CHOSE
AS THE BASE OF THE TAX A PART OF THE INCOME OF THE TAXPAYER UNDER THE
LAW AS PREVIOUSLY IN FORCE.  THE PREVIOUSLY GRANTED DEDUCTION WAS NOT
WITHDRAWN BUT, ON THE CONTRARY, THE INCOME REPRESENTED BY THAT
DEDUCTION WAS PICKED OUT FROM ALL OTHERS, WAS CLASSIFIED BY ITSELF AND
TAXED IN A MANNER WHOLLY UNRELATED TO THE INCOME AND THE TAXES OF THE
RECIPIENT OF THESE DIVIDENDS UNDER THE GENERAL LAW UNDER WHICH HE HAD
COMPUTED AND PAID HIS TAX.  IF THE STATE WAS AT LIBERTY TO DO THIS IT
WAS EQUALLY FREE TO TAX AT A NEW RATE AND UPON A NEW SCHEME INCOME OF
THE TAXPAYERS WHO IN 1933 DEDUCTED LOSSES SUSTAINED OR THOSE WHO
DEDUCTED INTEREST PAID OR TAXES PAID OR CHARITABLE CONTRIBUTIONS MADE. 
IT WAS EQUALLY AT LIBERTY TO FORM A TAXABLE CLASS OF THOSE WHO WERE
GRANTED PERSONAL EXEMPTIONS, TO WREST OUT OF THEIR SETTING, AS PART OF
THE GENERAL INCOME OF A TAXPAYER, RENTS RECEIVED, ROYALTIES RECEIVED,
OR PROFESSIONAL INCOME ACCRUED IN 1933 AND TO IMPOSE A SPECIAL INCOME
TAX ON ONE OR ALL OF THOSE ITEMS.  AS THE TRIAL JUDGE WELL SAID: 

"IN THE EQUITABLE DISTRIBUTION OF TAXATION PERSONS RECEIVING
DIVIDENDS IN THE YEAR 1933 SHOULD NOT BE CLASSIFIED LESS FAVORABLY THAN
PERSONS RECEIVING OTHER KINDS OF INCOME THAT YEAR.  FOR THE PURPOSE OF
TAXATION THE INCOME WAS NOT MATERIALLY DIFFERENT THAN THE FOLLOWING
KINDS:  SALARIES PAID OFFICERS OF PRIVATE CORPORATIONS; SALARIES PAID
TO PUBLIC OFFICIALS; INTEREST; RENTS; PROFIT AND INCOME OF ALL KINDS
RECEIVED BY INDIVIDUALS AND CORPORATIONS GENERALLY, UNLESS SOME GOOD
REASON APPEARED FOR SOME LEGISLATIVE EXCEPTION. 

"THE STATUTE IS ALSO DISCRIMINATORY AGAINST THE CLASS OF PERSONS
RECEIVING DIVIDENDS IN THE YEAR 1933 WHEN COMPARED WITH OTHER CLASSES
OF PERSONS WHEN SUCH OTHER CLASSES ARE ASSESSED AT ALL.  IT
DISCRIMINATES IN BEING MORE DRASTIC IN LIMITING DEDUCTIONS FOR LOSSES,
EXPENSES AND EXEMPTIONS.  IT IS MORE DRASTIC IN THE RAPID INCREASE OF
THE GRADUATED RATE.  FOR SOME REASON ONE CLASS ONLY WAS SELECTED TO
BEAR THE ENTIRE BURDEN OF THE EMERGENCY TAX IN QUESTION.  THIS CLASS
WAS SUBJECTED TO AN UNUSUALLY INEQUITABLE BURDEN." 

DECISIONS SUSTAINING THE POWER OF A STATE PROSPECTIVELY TO CLASSIFY,
TO GRANT EXEMPTIONS, OR OTHERWISE TO INTERRELATE THE TAX BURDENS OF
DIFFERENT CLASSES OF TAXPAYERS ARE OF NO AID AND LEND NO SUPPORT TO THE
PRESENT STATUTE.  IN NO CASE HERETOFORE TO WHICH ATTENTION HAS BEEN
CALLED HAVE THE COURTS SUSTAINED A LAW WHICH AFTER THE FACT REACHES
BACK TWO YEARS AND SELECTS FOR A SPECIAL FORM OF INCOME TAXATION AT A
NEW RATE A GROUP OF THE TAXPAYERS WHO, IN ACCORDANCE WITH PREEXISTING
LAW, HAD PAID THAT SHARE OF THE GENERAL INCOME TAX WHICH THE
LEGISLATURE HAD ADJUDGED TO BE ITS EQUAL AND PROPORTIONATE SHARE OF THE
BURDEN OF GOVERNMENT.  TO ATTEMPT THIS WAS, IN MY JUDGMENT, ARBITRARY
AND DISCRIMINATORY CLASSIFICATION. 

FROM WHAT HAS BEEN SAID I THINK IT APPARENT THAT THE RETROACTIVITY OF
THE CHALLENGED STATUTE TAKEN ALONE IS NOT THE ELEMENT WHICH CONDEMNS IT
ANY MORE THAN THE ATTEMPTED CLASSIFICATION ALONE WOULD CONDEMN IT IF
THE ACT WERE PROSPECTIVE IN OPERATION.  THE CASES RELIED UPON TO
SUPPORT THE STATUTE, VIEWED IN ITS RETROACTIVE ASPECT, DO NOT MEET THE
PRESENT CASE.  IN ONE OF THE CITED CASES, - UNITED STATES V. HUDSON,
299 U.S. 498, 500,  - EARLIER DECISIONS WERE THUS SUMMARIZED: "AS
RESPECTS INCOME TAX STATUTES IT LONG HAS BEEN THE PRACTICE OF CONGRESS
TO MAKE THEM RETROACTIVE FOR RELATIVELY SHORT PERIODS SO AS TO INCLUDE
PROFITS FROM TRANSACTIONS CONSUMMATED WHILE THE STATUTE WAS IN PROCESS
OF ENACTMENT, OR WITHIN SO MUCH OF THE CALENDAR YEAR AS PRECEDED THE
ENACTMENT; AND REPEATED DECISIONS OF THIS COURT HAVE RECOGNIZED THIS
PRACTICE AND SUSTAINED IT.  ...  "  THAT WAS A CASE WHICH FELL SQUARELY
WITHIN THIS STATEMENT OF THE SCOPE OF PERMISSIBLE RETROACTIVITY.  ALL
ENACTMENTS SUSTAINED THAT AMENDED THE TAX SYSTEM OF A PRIOR YEAR WERE
CONTINUATIONS OF THAT EXISTING SYSTEM, AND THE TAXPAYERS HAD KNOWLEDGE,
BEFORE THE EXPIRATION OF THE YEAR OF RECEIPT OF THE INCOME BY WHICH THE
TAX WAS MEASURED, THAT AMENDMENT OF THE SYSTEM WAS UNDER
CONSIDERATION.  TO THIS CLASS BELONGS THE PROVISION OF THE WISCONSIN
ACT OF 1935 IMPOSING AN ADDITIONAL TAX ON INCOME RECEIVED IN 1934. 
THIS FEATURE OF THE ACT IS NOT HERE UNDER ATTACK.  A VERY DIFFERENT
COURSE WAS ADOPTED WITH RESPECT TO THE INCOME OF 1933.  FOR THAT YEAR
THE STATUTE IMPOSED A SPECIAL INCOME TAX ON A CLASS SELECTED BECAUSE
THE LAW IN FORCE WHEN THEY PAID THEIR TAXES HAD PERMITTED THEM TO
DEDUCT CERTAIN ITEMS, AND IGNORED ALL OTHERS TO WHOM SIMILAR DEDUCTIONS
HAD BEEN GRANTED.  THUS THE WHOLE SCHEME OF THE GENERAL INCOME TAX WAS
UNBALANCED AND A PECULIAR AND SPECIFIC BURDEN LAID UPON A SELECTED FEW
WHO HAD THERETOFORE BEEN RELIEVED OF THE UNJUST BURDEN OF DOUBLE
TAXATION.  WHAT WAS SAID IN MILLIKEN V. UNITED STATES, 283 U.S. 15, 21,
IS PECULIARLY APPOSITE TO THE FACTS HERE DISCLOSED.  THERE, REFERRING
TO EARLIER DECISIONS, CONDEMNING, UNDER THE DUE PROCESS CLAUSE,
RETROACTIVE TAXES, IT WAS STATED:  "IN BOTH THE POINT WAS STRESSED, AS
THE BASIS OF DECISION, THAT THE NATURE AND AMOUNT OF THE TAX BURDEN
IMPOSED COULD NOT HAVE BEEN UNDERSTOOD AND FORESEEN BY THE TAXPAYER AT
THE TIME OF THE PARTICULAR VOLUNTARY ACT WHICH WAS MADE THE OCCASION OF
THE TAX."  HERE THE NATURE AND AMOUNT OF THIS SPECIAL AND PECULIAR TAX
COULD NOT HAVE BEEN UNDERSTOOD AND FORESEEN WHEN THE PETITIONER PAID
HIS 1933 INCOME TAX. 

IT IS TO BE REMEMBERED THAT THE ACT IN QUESTION IS NOT A CURATIVE
STATUTE FOR THE COLLECTION OF TAXES ASSESSED IN A PRIOR YEAR AND
UNCOLLECTED  FN10  NOR ONE INTENDED TO MAKE AVAILABLE TAXES WHICH, BY
REASON OF ILLEGALITY IN THEIR IMPOSITION, WERE NOT PAID IN THE YEAR IN
WHICH THEY WERE ASSESSED.  FN11  THE ACT IS NOT A REMEDIAL MEASURE TO
CONFIRM OR RATIFY A DOUBTFUL ADMINISTRATIVE INTERPRETATION OF PRIOR
LEGISLATION.  FN12  IT DOES NOT LAY AN EXCISE OR A PRIVILEGE MEASURED
BY THE INCOME OF A PRIOR YEAR,  FN13  NOR IS IT A STATUTE TO SETTLE
DOUBTS AS TO WHETHER AN EARLIER TAXING ACT HAD EXPIRED BY LIMITATION. 
FN14 

IT WAS SUGGESTED AT THE BAR THAT THE EXACTION IS A PROPERTY TAX AND
BAD AS SUCH BECAUSE RETROACTIVELY IMPOSED.  THE REPLY WAS THAT
RETROACTIVE PROPERTY TAXES HAVE BEEN UPHELD.  THE CASES CITED DO NOT
TOUCH THE VALIDITY OF AN AD VALOREM PROPERTY TAX RETROACTIVELY
IMPOSED.  SOME OF THEM INVOLVED SPECIAL ASSESSMENTS FOR BENEFITS
ASSESSED AFTER THE COMPLETION OF THE IMPROVEMENT.  FN15 ANOTHER CITED
TO THE PROPOSITION DEALT WITH AN EXCISE FOR THE USE, FOR PLEASURE, OF
FOREIGN BUILT YACHTS EITHER OWNED OR CHARTERED BY THE USER FOR MORE
THAN SIX MONTHS DURING THE TAXABLE YEAR.  THE EXACTION WAS HELD AN
EXCISE ON THE PRIVILEGE OF USE AND NOT A TAX UPON OWNERSHIP, AND,
MOREOVER, THE TAX WAS NOT RETROACTIVE IN OPERATION BUT WAS ASSESSED
UPON THE TAXPAYER AT A DATE DURING WHICH THE TAXPAYER'S USE OF THE
YACHT CONTINUED.  FN16  STILL ANOTHER DEALT WITH A CURATIVE ACT PASSED
TO REACH PROPERTY ILLEGALLY ASSESSED.  FN17  BUT WHETHER VIEWED AS A
PROPERTY OR AN INCOME TAX THE EXACTION IS BAD.  MOST, IF NOT ALL, THE
STATES HAVE LONG MAINTAINED THE POLICY OF EXEMPTING PLACES OF RELIGIOUS
WORSHIP FROM ANNUAL TAX LEVIES.  WILL IT BE CONTENDED THAT IF THE STATE
WERE NOW TO IMPOSE A TAX ON THE VALUE OF SUCH EXEMPT PROPERTY FOR SOME
PAST YEAR, THE ACTION WOULD NOT BE AN ARBITRARY TAKING OF PROPERTY AS
WELL AS A HOSTILE DISCRIMINATION? 

IF, AS THIS COURT HAS REPEATEDLY SAID, AN INCOME TAX IS AN EQUITABLE
METHOD OF DISTRIBUTING THE NECESSARY BURDENS OF GOVERNMENT, CERTAINLY
NO SUCH DISCRIMINATION AS IS EVIDENCED BY THE CHALLENGED ACT CAN
PROPERLY FALL WITHIN THE DESCRIPTION.  THE ACT EVIDENCES PURPOSEFUL AND
ARBITRARY DISCRIMINATION AND THUS VIOLATES THE GUARANTEE OF EQUAL
PROTECTION. 

FN1  LAWS OF WISCONSIN 1911, C. 658, P. 984. 

FN2  SEC. 71.04. 

FN3  SEC. 71.05. 

FN4  SEC. 71.04(4). 

FN5  SCOBIE V. TAX COMMISSION, 225 WIS. 529, 538; 275 N.W. 531. 

FN6  HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 425, 436;
WILSON V. NEW, 243 U.S. 332, 348. 

FN7  LAWS OF WISCONSIN 1935, C. 15, P. 19. 

FN8  THE JUDGES WHO HEARD THE CAUSE WERE EQUALLY DIVIDED IN OPINION. 
FOUR JUSTICES OF THE SUPREME COURT VOTED TO SUSTAIN THE ACT.  THE TRIAL
JUDGE AND THREE JUSTICES OF THE SUPREME COURT WERE OF THE OPINION THAT
IT WAS UNCONSTITUTIONAL. 

FN9  MILLER V. MILWAUKEE, 272 U.S. 713, 717. 

FN10  FLORIDA CENTRAL & P.R. CO. V. REYNOLDS, 183 U.S. 471. 

FN11  CITIZENS NATIONAL BANK V. KENTUCKY, 217 U.S. 443. 

FN12  HECHT V. MALLEY, 265 U.S. 144. 

FN13  FLINT V. STONE TRACY CO., 220 U.S. 107. 

FN14  STOCKDALE V. INSURANCE COMPANIES, 20 WALL.  323. 

FN15  SEATTLE V. KELLEHER, 195 U.S. 351; WAGNER V. BALTIMORE, 239
U.S. 207. 

FN16  BILLINGS V. UNITED STATES, 232 U.S. 261. 

FN17  CITIZENS NATIONAL BANK V. KENTUCKY, SUPRA. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER JOIN IN THIS OPINION. 
..END :





















HARRIS V. BRUNDAGE CO., 305 U.S. 160 


NO. 53.  ARGUED NOVEMBER 8, 1938.  - DECIDED NOVEMBER 21, 1938.  - 95
F.2D 373, AFFIRMED. 


1.  A COURT OF BANKRUPTCY HAS JURISDICTION TO DETERMINE CONTROVERSIES
RELATING TO PROPERTY IN THE HANDS OF THE DEBTOR'S AGENT AT THE TIME OF
THE FILING OF A PETITION IN BANKRUPTCY.  P. 163. 

2.  A COURT OF BANKRUPTCY HAS POWER, IN THE FIRST INSTANCE, TO
DETERMINE WHETHER IT HAS THAT ACTUAL OR CONSTRUCTIVE POSSESSION WHICH
IS ESSENTIAL TO ITS JURISDICTION TO PROCEED.  ID. 

3.  CONCURRENT FINDING OF TWO COURTS BELOW THAT RESPONDENTS IN THE
CASE HELD CUSTODY AND CONTROL OF AN ESCROW FUND IN CONTROVERSY AS AGENT
OF A BANKRUPT CORPORATION, IS ACCEPTED BY THIS COURT.  ID. 

4.  IN THE ABSENCE OF A SUBSTANTIAL ADVERSE CLAIM, THE BANKRUPTCY
COURT ACQUIRED JURISDICTION, WHEN THE PETITION IN BANKRUPTCY WAS FILED,
TO DETERMINE CONTROVERSIES RELATING TO AN ESCROW FUND IN CONTROL OF THE
BANKRUPT'S AGENTS, AND HAD POWER BY SUMMARY PROCEEDINGS TO COMPEL ITS
SURRENDER.  ID. 

5.  PARTIES HAVING ONLY A PROCEDURAL RIGHT TO HAVE ISSUES TRIED IN A
PLENARY SUIT MAY WAIVE IT BY CONSENTING TO SUMMARY TRIAL IN
BANKRUPTCY.  P. 164. 

HARRIS ET A L. V. AVERY BRUNDAGE CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 304 U.S. 557, TO REVIEW THE AFFIRMANCE OF ORDERS OF THE
BANKRUPTCY COURT REQUIRING THE PRESENT PETITIONERS TO MAKE A PAYMENT
FROM AN ESCROW FUND, AND ORDERING THAT PLEADINGS OF THE PETITIONERS
CHALLENGING ITS JURISDICTION OVER THE FUND BE STRICKEN. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

DID THE BANKRUPTCY COURT IN THIS INVOLUNTARY PROCEEDING HAVE
JURISDICTION TO ORDER THE DISPOSITION OF PROPERTY IN THE POSSESSION OF
PERSONS FOUND BY THE COURT TO BE HOLDING AS AGENTS OF THE ALLEGED
BANKRUPT? 

RESPONDENTS ENGAGED THE TAX SERVICE ASSOCIATION OF ILLINOIS TO SEEK
EXEMPTION FOR RESPONDENTS FROM AN ILLINOIS TAX.  THE CONTRACT ENTITLED
THE ASSOCIATION TO $1,500 CASH, AND AN ADDITIONAL $20,000 SHOULD THE
SUPREME COURT OF ILLINOIS FIND RESPONDENTS EXEMPT.  THE CONTRACT
AUTHORIZED THE ASSOCIATION TO RETAIN PETITIONER ODELL AS ATTORNEY TO
PROSECUTE THE CLAIMED EXEMPTION WITHOUT COST TO RESPONDENTS FOR HIS
SERVICES.  ODELL ENDORSED THE CONTRACT BETWEEN RESPONDENTS AND THE
ASSOCIATION WITH THE STATEMENT:  "I HEREBY CONSENT TO RETENTION UNDER
THE TERMS OF THIS AGREEMENT."  UNDER THE CONTRACT RESPONDENTS MADE
PAYMENTS - CORRESPONDING TO THEIR POSSIBLE TAX LIABILITIES - INTO AN
ESCROW FUND.  PETITIONERS ODELL AND HARRIS, EMPLOYED BY THE
ASSOCIATION, AND ONE CRAIG, DEPOSITED THESE PAYMENTS PURSUANT TO A
LETTER  FN1  TO THE BANK WHICH DECLARED THAT THE FUNDS DEPOSITED WERE
NOT THE PROPERTY OF EITHER ODELL, HARRIS OR CRAIG, BUT WERE IN THEIR
CUSTODY. 

THE SUPREME COURT OF ILLINOIS DECIDED RESPONDENTS WERE LIABLE FOR THE
TAX,  FN2  AND THEREAFTER AN INVOLUNTARY PETITION IN BANKRUPTCY WAS
FILED AGAINST THE ASSOCIATION.  CRAIG WAS WILLING BUT ODELL AND HARRIS
REFUSED TO COMPLY WITH RESPONDENTS' REQUEST FOR THE RETURN OF THE
PAYMENTS THEY HAD MADE INTO THE FUND, AND RESPONDENTS FILED A PETITION
FOR THEIR RECOVERY IN THE BANKRUPTCY COURT.  PETITIONERS CONSENTED AND
AGREED IN OPEN COURT TO AN ORDER OF THE BANKRUPTCY COURT WHICH REQUIRED
THEM TO PAY SEVENTY-FIVE PER CENT OF THE FUND ($242,000) TO THE STATE
OF ILLINOIS IN DISCHARGE OF RESPONDENTS' TAX LIABILITY, AND WHICH ALSO
PROVIDED THAT "THE BALANCE IN SAID  ... FUND  ...  SHALL REMAIN AND BE
HELD  ... SUBJECT TO THE FURTHER ORDER" OF THE BANKRUPTCY COURT.  IT
RECITED THAT PETITIONERS "AGREED THAT (THE BANKRUPTCY COURT) HAD
JURISDICTION TO ENTER THIS ORDER." 

RESPONDENTS THEN FILED A SECOND PETITION TO RECOVER AN ADDITIONAL
$48,580.40 FROM THE FUND, WITH $20,000 TO REMAIN "SUBJECT TO THE
FURTHER ORDER OF" THE COURT.  IN ANSWER TO RESPONDENTS' CLAIM, THE BANK
AND CRAIG DISCLAIMED ANY INTEREST IN THE FUND.  THE SOLE CLAIM ADVERSE
TO RESPONDENTS WAS ASSERTED BY THE RECEIVER OF THE ASSOCIATION, FOR
$20,000.  NEITHER ODELL NOR HARRIS CLAIMED ANY INTEREST IN THE FUND. 
IN RESPONSE TO THE COURT'S REQUESTS TO ANSWER, PETITIONERS ALLEGED THAT
THE COURT HAD NO JURISDICTION TO DETERMINE RIGHTS RELATING TO THE
FUND.  AFTER A HEARING, THE COURT FOUND THAT IT HAD JURISDICTION AND
ORDERED PETITIONERS TO PAY $48,580.40 FROM THE FUND TO RESPONDENTS, THE
BALANCE TO REMAIN "SUBJECT TO THE FURTHER ORDER OF (THE)  ...  COURT
...  "  THE FOLLOWING DAY THE COURT ORDERED THAT PETITIONERS' PLEADINGS
WHICH CHALLENGED ITS JURISDICTION OVER THE $20,000 BALANCE IN THE FUND
BE STRUCK, AND THAT PETITIONERS ANSWER WITHIN TWENTY DAYS TO THE MERITS
ON RESPONDENTS' CLAIM TO THIS BALANCE. 

PETITIONERS DID NOT ANSWER, BUT APPEALED FROM BOTH ORDERS.  THE
CIRCUIT COURT OF APPEALS AFFIRMED.  FN3 

A COURT OF BANKRUPTCY HAS JURISDICTION TO "BRING IN AND SUBSTITUTE
ADDITIONAL PERSONS OR PARTIES IN PROCEEDINGS IN BANKRUPTCY WHEN
NECESSARY FOR THE COMPLETE DETERMINATION OF A MATTER IN CONTROVERSY;
(AND TO) CAUSE THE ESTATES OF BANKRUPTS TO BE COLLECTED, REDUCED TO
MONEY AND DISTRIBUTED, AND DETERMINE CONTROVERSIES IN RELATION
THERETO," WITH EXCEPTIONS NOT HERE MATERIAL.  FN4  THIS JURISDICTION OF
THE BANKRUPTCY COURT EXTENDS TO THE DETERMINATION OF CONTROVERSIES
RELATING TO ALL PROPERTY IN THE DEBTOR'S PHYSICAL POSSESSION OR IN THE
HANDS OF THE DEBTOR'S AGENT AT THE TIME OF THE FILING OF A PETITION IN
BANKRUPTCY.  FN5  IN EVERY CASE THE BANKRUPTCY COURT HAS POWER, IN THE
FIRST INSTANCE, TO DETERMINE WHETHER IT HAS THAT ACTUAL OR CONSTRUCTIVE
POSSESSION WHICH IS ESSENTIAL TO ITS JURISDICTION TO PROCEED.  FN6 

HERE, BOTH COURTS BELOW FOUND THAT HARRIS AND ODELL WERE AGENTS OF
THE DEBTOR (THE ASSOCIATION) AND HAD CUSTODY OF THE ESCROW FUND AS SUCH
AGENTS AT THE TIME THE PETITION IN BANKRUPTCY WAS FILED AND
THEREAFTER.  WE ACCEPT THIS FINDING,  FN7  AND PROCEED TO A
CONSIDERATION OF THE JURISDICTIONAL QUESTION.  FN8 

PETITIONERS CONTROLLED AND HAD CUSTODY OF THIS FUND AS AGENTS OF THE
ASSOCIATION AND DID NOT ASSERT ANY ADVERSE INTEREST IN THEMSELVES.  IN
THE ABSENCE OF A SUBSTANTIAL ADVERSE CLAIM, THE BANKRUPTCY COURT
ACQUIRED JURISDICTION - WHEN THE PETITION IN BANKRUPTCY WAS FILED - TO
DETERMINE CONTROVERSIES RELATING TO THE FUND,  FN9  AND HAD POWER BY
SUMMARY PROCEEDINGS TO COMPEL ITS SURRENDER.  FN10  FURTHERMORE,
PETITIONERS CONSENTED AND AGREED IN OPEN COURT AND RESPONDENTS ASSENTED
TO THE COURT'S DISPOSITION OF THE FUND IN A SUMMARY PROCEEDING. 
JURISDICTION TO TRY THE ISSUES WAS VESTED IN THE DISTRICT COURT SITTING
AS A COURT OF BANKRUPTCY.  SINCE THE PARTIES HAD ONLY A PROCEDURAL
RIGHT TO HAVE THESE ISSUES TRIED IN A PLENARY SUIT, THEY WERE AT
LIBERTY TO WAIVE THIS RIGHT.  FN11  PETITIONERS APPROVED THE FIRST
ORDER WHICH DISPOSED OF PART OF THE FUND, AND SPECIFICALLY PROVIDED
THAT THE BALANCE REMAIN "SUBJECT TO THE FURTHER ORDERS OF" THE DISTRICT
COURT. 

ALL PERSONS WHO CREATED OR HAD ANY POSSIBLE INTEREST IN THAT PORTION
OF THE FUND ORDERED DISTRIBUTED WERE PARTIES AND PRESENT IN THE
BANKRUPTCY COURT.  NO ONE OF THEM - INCLUDING PETITIONERS - ASSERTED OR
IN ANY WAY INDICATED TO THE BANKRUPTCY COURT THAT THERE COULD BE ANY
INTEREST IN THE MONEY DISTRIBUTED ADVERSE TO RESPONDENTS.  THE SOLE
CLAIM ADVERSE TO RESPONDENTS WAS THAT OF THE RECEIVER OF THE
ASSOCIATION, FOR $20,000.  THIS AMOUNT WAS NOT DISTRIBUTED AND THE
COURT RETAINED JURISDICTION TO DETERMINE CONTROVERSIES RELATING TO IT. 

PETITIONERS HAVING CONSENTED THAT THE FUND BE SUBJECT TO THE ORDERS
OF THE BANKRUPTCY COURT, AND THAT COURT HAVING DETERMINED THAT
PETITIONERS HELD THE FUND AS AGENTS OF THE ASSOCIATION, THERE WAS
JURISDICTION TO ENTER THE ORDERS IN QUESTION.  AFFIRMED. 

FN1  "NATIONAL BUILDERS BANK OF CHICAGO.  "GENTLEMEN: 

"THERE HAS BEEN OPENED WITH YOU A CERTAIN ACCOUNT ENTITLED SALES TAX
ESCROW FUND.  THERE WILL BE DELIVERED TO YOU FROM TIME TO TIME
HEREAFTER FOR DEPOSIT TO THE CREDIT OF SAID ACCOUNT CERTAIN CHECKS FOR
VARIOUS AMOUNTS ISSUED BY SUNDRY CONTRACTORS. 

"YOU ARE HEREBY INSTRUCTED THAT THE FUNDS FROM TIME TO TIME ON
DEPOSIT IN SAID ACCOUNT ARE NOT THE FUNDS OF THE UNDERSIGNED, BUT ARE
UNDER THE CUSTODY AND CONTROL OF THE UNDERSIGNED PENDING THE OUTCOME OF
PROPOSED NEGOTIATIONS WITH THE DEPARTMENT OF FINANCE OF THE STATE OF
ILLINOIS.  WITHDRAWALS FROM THE ACCOUNT ARE TO BE MADE ONLY ON WRITTEN
ORDER OF THE UNDERSIGNED, THREE OF WHOM MUST ACT TOGETHER AS
INDICATED.  EACH CHECK MUST BEAR THE SIGNATURE OF EITHER:  BENJAMIN F.
J. ODELL OR RUTH V. WILLNER; AND R. G. HARRIS OR P. N. WEAVER, TOGETHER
WITH E. M. CRAIG OR R. D. STEEL." 

FN2  BLOME CO. V. AMES, 365 ILL. 456; 6 N.E.2D 841. 

FN3  95 F.2D 373. 

FN4  BANKRUPTCY ACT, C. 2, 11 U.S.C., SEC. 11(6, 7).  AS TO
EXCEPTIONS, SEE BRYAN V. BERNHEIMER, 181 U.S. 188, 194. 

FN5  MUELLER V. NUGENT, 184 U.S. 1; SEE WHITNEY V. WENMAN, 198 U.S.
539, 552; TAUBEL-SCOTT-KITZMILLER CO. V. FOX, 264 U.S. 426, 432, 433
AND NOTES; MAY V. HENDERSON, 268 U.S. 111, 115. 

FN6  TAUBEL-SCOTT-KITZMILLER CO. V. FOX, SUPRA, 433; MAY V.
HENDERSON, SUPRA, 116.  SEE, HARRISON V. CHAMBERLAIN, 271 U.S. 191,
194. 

FN7  "IN THIS CASE, HOWEVER, RESPONDENT (PETITIONERS) ASSERTED NO
RIGHT OR TITLE TO THE PROPERTY BEFORE THE REFEREE, AND THE
CIRCUMSTANCES UNDER WHICH HE (THEY) HELD POSSESSION MUST BE ACCEPTED AS
FOUND BY THE REFEREE AND THE DISTRICT COURT."  MUELLER V. NUGENT,
SUPRA, 15. 

FN8  CF. PAGE V. ARKANSAS GAS CORP., 286 U.S. 269, 271. 

FN9  TAUBEL-SCOTT-KITZMILLER CO. V. FOX, SUPRA, 433; SEE NOTE 5,
SUPRA. 

FN10  CF. MUELLER V. NUGENT, SUPRA, 14. 

FN11  MACDONALD V. PLYMOUTH TRUST CO., 286 U.S. 263; BRYAN V.
BERNHEIMER, SUPRA, 197; SEE TAUBEL-SCOTT-KITZMILLER CO V. FOX, SUPRA,
437; PAGE V. ARKANSAS GAS CORP., SUPRA, 271; CF. SCHUMACHER V. BEELER,
293 U.S. 367, 369. 
..END :















STOLL V. GOTTLIEB, 305 U.S. 165 


NO. 20.  ARGUED OCTOBER 14, 1938.  - DECIDED NOVEMBER 21, 1938.  - 368
ILL. 88 - 12 N.E.2D 881, REVERSED. 


1.  A CONTENTION THAT A RULING OF A STATE SUPREME COURT DISREGARDED
DECREES OF A COURT OF THE UNITED STATES, RAISED A FEDERAL QUESTION
REVIEWABLE UNDER SEC. 237B OF THE JUDICIAL CODE.  P. 167. 

2.  AN ORDER OF A FEDERAL DISTRICT COURT, WHICH, IN A PROCEEDING TO
REORGANIZE A CORPORATION UNDER SEC. 77B OF THE BANKRUPTCY ACT, APPROVED
A PLAN OF REORGANIZATION PROVIDING INTER ALIA FOR DISCHARGE OF THE
DEBTOR'S BONDS AND CANCELLATION OF A PERSONAL GUARANTY THEREOF, HELD
RES JUDICATA, AND PROOF AGAINST COLLATERAL ATTACK, IN AN ACTION IN A
STATE COURT, BROUGHT AGAINST THE GUARANTOR (WHO HAD APPEARED AND
APPROVED THE REORGANIZATION AS PROPOSED), BY ONE OF THE HOLDERS OF THE
GUARANTEED BONDS, WHO HAD RECEIVED NOTICE OF THE HEARING IN THE
DISTRICT COURT UPON THE PROPOSED REORGANIZATION, BUT DID NOT THERE
APPEAR, AND WHO, AFTER BRINGING HIS ACTION ON THE GUARANTY, HAD
UNSUCCESSFULLY PETITIONED THAT COURT TO SET ASIDE OR MODIFY ITS ORDER
UPON THE GROUND THAT IT HAD NO JURISDICTION TO EXTINGUISH THE
GUARANTY.  P. 170. 

IN REACHING THIS CONCLUSION, THE COURT ASSUMES THAT THE BANKRUPTCY
COURT DID NOT HAVE JURISDICTION OF THE SUBJECT MATTER OF ITS ORDER -
THE RELEASE, IN REORGANIZATION, OF A GUARANTOR FROM HIS GUARANTY.  THE
DECISION HERE IS BASED ON THE FACT THAT IN AN ACTUAL CONTROVERSY THE
QUESTION OF THE JURISDICTION OVER THE SUBJECT MATTER WAS RAISED AND
DETERMINED ADVERSELY TO THE RESPONDENT.  THAT DETERMINATION IS RES
JUDICATA OF THAT ISSUE IN THIS ACTION, WHETHER OR NOT POWER TO DEAL
WITH THE PARTICULAR SUBJECT MATTER WAS STRICTLY OR QUASI
JURISDICTIONAL. 

VALLELY V. NORTHERN FIRE INS. CO., 254 U.S. 348, DISTINGUISHED. 

CASES DEALING WITH STATUS AND TRANSFER OF TITLE TO REAL ESTATE ARE
OUTSIDE THE SCOPE OF THE PRESENT INQUIRY. 

STOLL V. GOTTLIEB. 

CERTIORARI TO THE SUPREME COURT OF ILLINOIS. 

CERTIORARI, 304 U.S. 554, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
RECOVERED IN THE MUNICIPAL COURT OF CHICAGO, IN AN ACTION UPON A
GUARANTY OF BONDS OF A CORPORATION, AND REVERSING A JUDGMENT OF THE
APPELLATE COURT OF ILLINOIS, 289 ILL. APP. 595, WHICH HAD HELD TO THE
CONTRARY. 

UNDER THE "FULL FAITH AND CREDIT" CLAUSE OF THE CONSTITUTION, THE
JURISDICTION OF THE FEDERAL COURT TO CANCEL THE GUARANTY WAS PROPERLY
INQUIRED INTO BY THE SUPREME COURT OF ILLINOIS. 

THE PROCEEDINGS IN THE FEDERAL COURT DID NOT CONSTITUTE AN ESTOPPEL
OR RES JUDICATA. 

MOTION OF RESPONDENT IN THE FEDERAL COURT TO VACATE THE DECREE AND
ORDERS CANCELLING THE GUARANTY ENTERED ALMOST TWO YEARS EARLIER, FOR
THE REASON THAT THAT COURT HAD NO JURISDICTION TO CANCEL THE GUARANTY,
DID NOT CONFER VALIDITY UPON THAT PART OF THE DECREE, OTHERWISE VOID. 

THE BANKRUPTCY ACT PROHIBITS THE CANCELLATION OF A GUARANTY, AND
THERE IS NO AUTHORITY IN SEC. 77B OR ELSEWHERE GIVING THE FEDERAL COURT
THAT POWER. 

IF SEC. 77B WERE CONSTRUED TO EMPOWER THE DISTRICT COURT TO CANCEL
THE GUARANTY, IT WOULD VIOLATE THE FIFTH AMENDMENT. 

UNDER THE DECISIONS IN IN RE DIVERSEY BUILDING CORP., 86 F.2D 456,
WHEREIN THIS COURT DENIED CERTIORARI, 300 U.S. 662, AND IN RE NINE
NORTH CHURCH ST., INC., 82 F.2D 186, 188, THE FEDERAL COURT WAS WHOLLY
WITHOUT JURISDICTION OF THE SUBJECT MATTER OF THIS GUARANTY, AND ITS
ORDERS AND DECREE PERTAINING TO THE CANCELLATION OF THE GUARANTY ARE
ABSOLUTELY VOID AND SUBJECT TO COLLATERAL ATTACK.  SEE IN RE UTILITIES
POWER & LIGHT CORP., 91 F.2D 598; IN RE PRUDENCE BONDS CORP., 79 F.2D
212, 215; IN RE 1775 BROADWAY CORP., 79 F.2D 108, 110; BRUMLEY V.
JONES, 141 F. 318; HOLM V. JAMIESON, 173 ILL. 295, 300; UNION TRUST CO.
V. WILLSEA, 275 N.Y. 164; IN RE MADISON MORTGAGE CORP., 22 F.SUPP.  99;
CHAUNCEY V. DYKES BROS., 119 F. 1, 3; IN RE PYROCOLOR CORP., 46 F.2D
554; JOHNSON V. FINN, 14 N.E.2D 240; COLLIER SUPP. SEC. 77B; AM. B.R.
DIGEST, SEC. 1279-A; ARMSTRONG V. OBUCINO, 306 ILL. 140; STANDARD OIL
CO. V. MISSOURI, 224 U.S. 270, 281; IN RE SAWYER, 124 U.S. 200, 220;
UNITED STATES V. WALKER, 109 U.S. 258; WINDSOR V. MCVEIGH, 93 U.S. 274;
ADAMS V. TERRELL, 4 F. 796, 800; NOVAK V. KRUSE, 211 ILL. APP. 274;
GREAT WESTERN TEL. CO. V. BARKER, 56 ILL. APP. 402; RISLEY V. PHENIX
BANK, 83 N.Y. 318, 337; EX PARTE WISNER, 203 U.S. 449; HOVEY V.
ELLIOTT, 167 U.S. 409, 444; REYNOLDS V. STOCKTON, 140 U.S. 254;
GUARANTY TRUST CO. V. GREEN COVE R. CO., 139 U.S. 137; IN RE SOUTHERN
STATES FINANCE CO., 19 F.2D 959; THE CONFISCATION CASES, 20 WALL.  92;
SHARON V. TERRY, 36 F. 337, 346; RABBIT V. WEBER & CO., 297 ILL. 491,
495; DEMILLY V. GROSRENAUD, 201 ILL. 272, 273; KENNEY V. GREER, 13 ILL.
432; ASHLOCK V. ASHLOCK, 360 ILL. 115, 122. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS CERTIORARI WAS ALLOWED TO REVIEW A JUDGMENT OF THE SUPREME COURT
OF ILLINOIS.  THAT COURT HAD DENIED EFFECT TO A PLEA OF RES JUDICATA
ARISING FROM ORDERS OF A DISTRICT COURT IN BANKRUPTCY.  PROVISIONS
DECLARING THE SUPREMACY OF THE CONSTITUTION AND THE EXTENT OF THE
JUDICIAL POWER AND AUTHORIZING NECESSARY AND PROPER LEGISLATION TO MAKE
THE GRANTS EFFECTIVE CONFER JURISDICTION UPON THIS COURT TO DETERMINE
THE EFFECT TO BE GIVEN DECREES OF A COURT OF THE UNITED STATES IN STATE
COURTS.  FN1  AS THE CONTENTION IS THAT THE RULING BELOW DISREGARDED
DECREES OF A COURT OF THE UNITED STATES, IT RAISED A FEDERAL QUESTION
REVIEWABLE UNDER SEC. 237B OF THE JUDICIAL CODE.  FN2 

THE ADMISSION OF FACTS, AND UNCONTROVERTED ALLEGATIONS OF THE
PLEADINGS, SHOW THAT TEN FIFTEEN NORTH CLARK BUILDING CORPORATION FILED
A PETITION FOR REORGANIZATION ON JUNE 20, 1934, UNDER SEC. 77B OF THE
BANKRUPTCY ACT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS; THAT THE PETITION WAS APPROVED AS PROPERLY FILED
SHORTLY THEREAFTER, AND THAT NOTICE OF THE PROCEEDINGS WAS GIVEN TO THE
CREDITORS, ONE OF WHOM WAS RESPONDENT WILLIAM GOTTLIEB.  A PROPOSED
PLAN OF REORGANIZATION WAS FILED BY THE DEBTOR WHICH PROVIDED FOR THE
SUBSTITUTION OF ONE SHARE OF COMMON STOCK IN THE OLYMPIC HOTEL BUILDING
CORPORATION FOR EACH $100 PRINCIPAL AMOUNT OF THE OUTSTANDING FIRST
MORTGAGE, 6 1/2% GOLD BONDS OF THE DEBTOR CORPORATION, THE DISCHARGE OF
THE BONDS AND THE CANCELLATION OF A GUARANTY ENDORSED ON THEM.  THE
GUARANTY WAS ONE OF J. O. STOLL, PETITIONER HERE, AND S. A. CROWE, JR.,
TO PAY THE BOND.  ITS MATERIAL PROVISIONS ARE STATED BELOW.  FN3  THE
EXTINCTION OF THE PERSONAL GUARANTY WAS IN CONSIDERATION "FOR THE
TRANSFER OF ALL THE ASSETS OF SAID DEBTOR (I. E., THE BUILDING
CORPORATION) TO THE OLYMPIC HOTEL BUILDING CORPORATION AND THE
SURRENDER OF THE SAID COMMON STOCK OF THE DEBTOR."  CROWE AND STOLL,
TOGETHER WITH OTHER STOCKHOLDERS OF THE DEBTOR, "FILED THEIR
ACCEPTANCES IN WRITING" OF THE PLAN. 

ON NOTICE TO RESPONDENT AND A HEARING AT WHICH HE DID NOT APPEAR THE
PROPOSED PLAN OF REORGANIZATION WITH THE PROVISION FOR THE EXTINCTION
OF THE GUARANTY WAS CONFIRMED OVER THE OBJECTIONS OF CREDITORS OF THE
SAME CLASS AS RESPONDENT.  THE CONFIRMATION PROVIDED THAT ALL CREDITORS
OF THE DEBTOR SHOULD BE BOUND.  IT ALSO APPEARS THAT, IN ACCORDANCE
WITH THE PLAN, THE GUARANTORS CAUSED THE ASSETS OF THE DEBTOR TO BE
TRANSFERRED TO THE NEW CORPORATION AND SURRENDERED THE CAPITAL STOCK OF
THE DEBTOR.  AFTER THE INSTITUTION OF THE PRESENT ACTION IN THE STATE
COURT GOTTLIEB FILED A PETITION IN THE PROCEEDINGS FOR REORGANIZATION
OF THE TEN FIFTEEN NORTH CLARK BUILDING CORPORATION PRAYING THAT AN
ORDER BE ENTERED VACATING OR MODIFYING THE DECREES AND ORDERS ENTERED
IN THE PROCEEDINGS CONFIRMING THE PLAN OF REORGANIZATION, ON THE GROUND
THAT THE DISTRICT COURT IN PROCEEDINGS FOR REORGANIZATION DID NOT HAVE
POWER OR JURISDICTION TO CANCEL THE GUARANTY.  AN ORDER WAS ENTERED
DENYING THIS PETITION.  NO APPEAL WAS TAKEN FROM ANY OF THE BANKRUPTCY
ORDERS. 

SUBSEQUENT TO THE CONFIRMATION OF THE PLAN OF REORGANIZATION BUT
BEFORE THE PETITION TO VACATE THESE ORDERS GOTTLIEB BEGAN AN ACTION IN
THE MUNICIPAL COURT OF CHICAGO AGAINST THE GUARANTORS CROWE AND STOLL
TO RECOVER UPON THEIR GUARANTY OF THREE OF THE $500 BONDS OF TEN
FIFTEEN NORTH CLARK BUILDING CORPORATION.  CROWE WAS NOT SERVED WITH
SUMMONS.  STOLL DEFENDED ON THE GROUND THAT THE ORDER OF THE BANKRUPTCY
COURT CONFIRMING THE PLAN OF REORGANIZATION WITH RELEASE OF HIS
GUARANTY AND ITS FURTHER ORDER, DENYING GOTTLIEB'S PETITION TO SET
ASIDE THE DECREE PROVIDING FOR THE RELEASE OF THE GUARANTY, WERE RES
JUDICATA. 

THE MUNICIPAL COURT GRANTED THE RELIEF SOUGHT BY THE BONDHOLDER, THE
APPELLATE COURT REVERSED AND ITS JUDGMENT WAS IN TURN REVERSED BY THE
SUPREME COURT OF ILLINOIS, WHICH AFFIRMED THE JUDGMENT OF THE MUNICIPAL
COURT.  FN4  TWO JUSTICES DISSENTED. 

THE CONGRESS ENACTED, AS ONE OF THE EARLIER STATUTES, PROVISIONS FOR
GIVING EFFECT TO THE JUDICIAL PROCEEDINGS OF THE COURTS.  THIS HAS LONG
HAD ITS PRESENT FORM.  FN5  THIS STATUTE IS BROADER THAN THE AUTHORITY
GRANTED BY ARTICLE FOUR, SECTION ONE, OF THE CONSTITUTION TO PRESCRIBE
THE MANNER OF PROOF AND THE EFFECT OF THE JUDICIAL PROCEEDINGS OF
STATES.  UNDER IT THE JUDGMENTS AND DECREES OF THE FEDERAL COURTS IN A
STATE ARE DECLARED TO HAVE THE SAME DIGNITY IN THE COURTS OF THAT STATE
AS THOSE OF ITS OWN COURTS IN A LIKE CASE AND UNDER SIMILAR
CIRCUMSTANCES.  FN6  BUT WHERE THE JUDGMENT OR DECREE OF THE FEDERAL
COURT DETERMINES A RIGHT UNDER A FEDERAL STATUTE, THAT DECISION IS
"FINAL UNTIL REVERSED IN AN APPELLATE COURT, OR MODIFIED OR SET ASIDE
IN THE COURT OF ITS RENDITION."  FN7  AS THIS PLEA WAS BASED UPON AN
ADJUDICATION UNDER THE REORGANIZATION PROVISIONS OF THE BANKRUPTCY ACT,
EFFECT AS RES JUDICATA IS TO BE GIVEN THE FEDERAL ORDER, IF IT IS
CONCLUDED IT WAS AN EFFECTIVE JUDGMENT IN THE COURT OF ITS RENDITION. 
THE PROBLEM BEFORE THE SUPREME COURT OF ILLINOIS WAS NOT ONE OF FULL
FAITH AND CREDIT BUT OF RES JUDICATA.  IN THIS PARTICULAR CASE, A
FEDERAL QUESTION WAS INVOLVED.  THIS WAS THE POWER OF THE FEDERAL
COURTS TO PROTECT THOSE WHO COME BEFORE THEM RELYING UPON
CONSTITUTIONAL RIGHTS OR RIGHTS GIVEN, AS IN THIS CASE, THROUGH A
STATUTE ENACTED PURSUANT TO CONSTITUTIONAL GRANTS OF POWER. 

THE INQUIRY IS TO BE DIRECTED AT THE CONCLUSIVENESS OF THE ORDER
RELEASING THE GUARANTOR FROM HIS OBLIGATION, ASSUMING THE BANKRUPTCY
COURT DID NOT HAVE JURISDICTION OF THE SUBJECT MATTER OF THE ORDER, THE
RELEASE IN REORGANIZATION OF A GUARANTOR FROM HIS GUARANTY OF THE
DEBTOR'S OBLIGATIONS.  FN8 

A COURT DOES NOT HAVE THE POWER, BY JUDICIAL FIAT, TO EXTEND ITS
JURISDICTION OVER MATTERS BEYOND THE SCOPE OF THE AUTHORITY GRANTED TO
IT BY ITS CREATORS.  THERE MUST BE ADMITTED, HOWEVER, A POWER TO
INTERPRET THE LANGUAGE OF THE JURISDICTIONAL INSTRUMENT AND ITS
APPLICATION TO AN ISSUE BEFORE THE COURT.  FN9  WHERE ADVERSARY PARTIES
APPEAR, A COURT MUST HAVE THE POWER TO DETERMINE WHETHER OR NOT IT HAS
JURISDICTION OF THE PERSON OF A LITIGANT,  FN10  OR WHETHER ITS
GEOGRAPHICAL JURISDICTION COVERS THE PLACE OF THE OCCURRENCE UNDER
CONSIDERATION.  FN11  EVERY COURT IN RENDERING A JUDGMENT, TACITLY, IF
NOT EXPRESSLY, DETERMINES ITS JURISDICTION OVER THE PARTIES AND THE
SUBJECT MATTER.  FN12  AN ERRONEOUS AFFIRMATIVE CONCLUSION AS TO THE
JURISDICTION DOES NOT IN ANY PROPER SENSE ENLARGE THE JURISDICTION OF
THE COURT UNTIL PASSED UPON BY THE COURT OF LAST RESORT, AND EVEN THEN
THE JURISDICTION BECOMES ENLARGED ONLY FROM THE NECESSITY OF HAVING A
JUDICIAL DETERMINATION OF THE JURISDICTION OVER THE SUBJECT MATTER. 
WHEN AN ERRONEOUS JUDGMENT, WHETHER FROM THE COURT OF FIRST INSTANCE OR
FROM THE COURT OF FINAL RESORT, IS PLEADED IN ANOTHER COURT OR ANOTHER
JURISDICTION THE QUESTION IS WHETHER THE FORMER JUDGMENT IS RES
JUDICATA.  AFTER A FEDERAL COURT HAS DECIDED THE QUESTION OF THE
JURISDICTION OVER THE PARTIES AS A CONTESTED ISSUE, THE COURT IN WHICH
THE PLEA OF RES JUDICATA IS MADE HAS NOT THE POWER TO INQUIRE AGAIN
INTO THAT JURISDICTIONAL FACT.  FN13  WE SEE NO REASON WHY A COURT, IN
THE ABSENCE OF AN ALLEGATION OF FRAUD IN OBTAINING THE JUDGMENT, SHOULD
EXAMINE AGAIN THE QUESTION WHETHER THE COURT  FN14  MAKING THE EARLIER
DETERMINATION ON AN ACTUAL CONTEST OVER JURISDICTION BETWEEN THE
PARTIES, DID HAVE JURISDICTION OF THE SUBJECT MATTER OF THE
LITIGATION.  IN THIS CASE THE ORDER UPON THE PETITION TO VACATE THE
CONFIRMATION SETTLED THE CONTEST OVER JURISDICTION. 

COURTS TO DETERMINE THE RIGHTS OF PARTIES ARE AN INTEGRAL PART OF OUR
SYSTEM OF GOVERNMENT.  IT IS JUST AS IMPORTANT THAT THERE SHOULD BE A
PLACE TO END AS THAT THERE SHOULD BE A PLACE TO BEGIN LITIGATION. 
AFTER A PARTY HAS HIS DAY IN COURT, WITH OPPORTUNITY TO PRESENT HIS
EVIDENCE AND HIS VIEW OF THE LAW, A COLLATERAL ATTACK UPON THE DECISION
AS TO JURISDICTION THERE RENDERED MERELY RETRIES THE ISSUE PREVIOUSLY
DETERMINED.  THERE IS NO REASON TO EXPECT THAT THE SECOND DECISION WILL
BE MORE SATISFACTORY THAN THE FIRST. 

THAT A FORMER JUDGMENT IN A STATE COURT IS CONCLUSIVE BETWEEN THE
PARTIES AND THEIR PRIVIES IN A FEDERAL COURT WHEN ENTERED UPON AN
ACTUALLY CONTESTED ISSUE AS TO THE JURISDICTION OF THE COURT OVER THE
SUBJECT MATTER OF THE LITIGATION, HAS BEEN DETERMINED BY THIS COURT IN
FORSYTH V. HAMMOND.  FN15  THE PETITIONER, CAROLINE M. FORSYTH, SOUGHT
BY INJUNCTION IN THE FEDERAL COURT TO FORBID THE CITY OF HAMMOND FROM
COLLECTING TAXES ON CERTAIN LANDS, ANNEXED TO THE CITY BY AN EARLIER
STATE COURT DECREE.  THE CITY CONTENDED THAT THE EARLIER DECREE WAS
DECISIVE, THE PETITIONER THAT IT WAS VOID BECAUSE THE ENLARGEMENT OF A
CITY WAS A MATTER OF LEGISLATIVE, NOT JUDICIAL, COGNIZANCE.  WITHOUT
DETERMINING THE ISSUE WHETHER ANNEXATION ITSELF IS A FUNCTION SOLELY OF
THE LEGISLATURE, THIS COURT UPHELD THE CONTENTION OF THE CITY ON THE
GROUND THAT THE PETITIONER HAD TAKEN AN APPEAL TO THE SUPREME COURT OF
INDIANA FROM THE EARLIER DECREE OF THE TRIAL COURT AGAINST HER IN THE
ANNEXATION PROCEEDINGS, AND HAD IN THAT APPEAL ATTACKED THE VALIDITY OF
THE DECREE ON THE GROUND OF LACK OF JURISDICTION.  "HAVING LITIGATED A
QUESTION IN ONE COMPETENT TRIBUNAL AND BEEN DEFEATED, CAN SHE LITIGATE
THE SAME QUESTION IN ANOTHER TRIBUNAL, ACTING INDEPENDENTLY, AND HAVING
NO APPELLATE JURISDICTION?  THE QUESTION IS NOT WHETHER THE JUDGMENT OF
THE SUPREME COURT WOULD BE CONCLUSIVE AS TO THE QUESTION INVOLVED IN
ANOTHER ACTION BETWEEN OTHER PARTIES, BUT WHETHER IT IS NOT BINDING
BETWEEN THE SAME PARTIES IN THAT OR ANY OTHER FORUM."  FN16 

OTHER INSTANCES CLOSELY APPROACHING THE LINE OF THIS CASE MAY BE
EXAMINED. 

IN DES MOINES NAVIGATION & RAILROAD CO. V. IOWA HOMESTEAD CO.,  FN17
THIS COURT WAS CALLED UPON TO RESOLVE A CONTROVERSY OVER THE EFFECT OF
A JUDGMENT OF THE FEDERAL COURTS IN A MATTER BEYOND THEIR
JURISDICTION.  THE SUIT WAS BROUGHT BY THE HOMESTEAD COMPANY IN THE
STATE COURT TO RECOVER CERTAIN TAXES WHICH WERE THE SUBJECT OF
LITIGATION BETWEEN THE SAME PARTIES IN HOMESTEAD COMPANY V. VALLEY
RAILROAD, 17 WALL.  153.  IN THE EARLIER CASE THE DECISION HAD BEEN
ADVERSE TO THE HOMESTEAD COMPANY.  WHEN THE NAVIGATION COMPANY PLEADED
THE EARLIER DECREE IN BAR TO THE LATER ACTION, IT WAS MET WITH THE
REPLY THAT THE COURTS OF THE UNITED STATES, WHICH HAD RENDERED THE
EARLIER DECREE "HAD NO JURISDICTION OF SAID SUIT AND NO LEGAL POWER OR
AUTHORITY TO RENDER SAID DECREE OR JUDGMENT."  THE REASON FOR THIS
ASSERTION WAS THAT THE EARLIER SUIT HAD BEEN INSTITUTED IN A STATE
COURT BY THE HOMESTEAD COMPANY, AN IOWA CORPORATION, AGAINST VARIOUS
NON-RESIDENT DEFENDANTS AND THE NAVIGATION COMPANY, ALSO AN IOWA
CORPORATION.  THE INDIVIDUAL DEFENDANTS CAUSED A REMOVAL TO THE FEDERAL
COURT AND ALL DEFENDANTS, INCLUDING THE NAVIGATION COMPANY, APPEARED,
FILED ANSWERS AND DEFENDED THE ACTION.  THE HOMESTEAD COMPANY LIKEWISE
APPEARED AND ACTUALLY CONTESTED ISSUES IN DISPUTE WITH THE NAVIGATION
COMPANY.  THE LITIGATION EVENTUALLY REACHED THIS COURT AND WAS DECIDED
WITHOUT REFERENCE TO THE LACK OF JURISDICTION.  IN THE LATER CASE THIS
COURT ASSUMED THAT THE EXERCISE OF JURISDICTION BY THE UNITED STATES
CIRCUIT COURT OVER THE CONTROVERSY BETWEEN THE TWO IOWA CORPORATIONS
WAS IMPROPER.  IT WAS HELD, HOWEVER, THAT THE EARLIER DECREE WAS A
"PRIOR ADJUDICATION OF THE MATTERS IN CONTROVERSY" AND A BAR TO THE
LATER ACTION. 

A FEW YEARS LATER THIS COURT HAD OCCASION TO EXAMINE AGAIN THE
QUESTION OF THE EFFECT OF A FORMER ADJUDICATION BY A UNITED STATES
CIRCUIT COURT IN A CASE WHERE THIS COURT ASSUMED THE CIRCUIT COURT HAD
JURISDICTION OF THE PARTIES BUT NOT OF THE SUBJECT MATTER.  THE EARLIER
ADJUDICATION WAS PLEADED IN BAR TO A SUIT TO QUIET TITLE IN A STATE
COURT SITTING IN THE SAME STATE AS THE CIRCUIT COURT.  THE STATE COURTS
DENIED EFFECT TO THE CIRCUIT COURT DECREE.  ON WRIT OF ERROR TO THE
SUPREME COURT OF OREGON THIS COURT ANSWERED THE CONTENTION THAT THE
GROUND UPON WHICH "THE FEDERAL COURT ASSUMED JURISDICTION WAS
INSUFFICIENT IN LAW TO MAKE THIS CASE ONE ARISING UNDER THE LAWS OF THE
UNITED STATES" IN THESE WORDS: 

"BUT THAT WAS A QUESTION WHICH THE CIRCUIT COURT OF THE UNITED STATES
WAS COMPETENT TO DETERMINE IN THE FIRST INSTANCE.  ITS DETERMINATION OF
IT WAS THE EXERCISE OF JURISDICTION.  EVEN IF THAT COURT ERRED IN
ENTERTAINING JURISDICTION, ITS DETERMINATION OF THAT MATTER WAS
CONCLUSIVE UPON THE PARTIES BEFORE IT, AND COULD NOT BE QUESTIONED BY
THEM OR EITHER OF THEM COLLATERALLY, OR OTHERWISE THAN ON WRIT OF ERROR
OR APPEAL TO THIS COURT."  FN18 

THE DECISION IN THE DES MOINES CASE IS NOT PRECISELY PARALLEL WITH
THE CIRCUMSTANCES OF THE PRESENT CASE BECAUSE THE DETERMINATION WAS
BASED UPON DIVERSITY OF CITIZENSHIP BETWEEN OTHER PARTIES TO THE
CONTROVERSY  FN19  AND DOWELL V. APPLEGATE MAY LIKEWISE BE SEEN TO
DEVIATE SLIGHTLY SINCE THERE WAS COLOR OF JURISDICTION IN THE FEDERAL
COURT BY REASON OF CERTAIN ALLEGATIONS AS TO VIOLATION OF ACTS OF
CONGRESS IN THE STAMPING OF THE DEEDS. 

A CASE LIKEWISE CLOSELY APPROACHING THE CIRCUMSTANCES OF THE PRESENT
CONTROVERSY IS VALLELY V. NORTHERN FIRE & M. INS. CO. FN20  A
CORPORATION ALLEGED TO BE ENGAGED IN THE INSURANCE BUSINESS WAS
ADJUDICATED AN INVOLUNTARY BANKRUPT IN THE TEETH OF THE BANKRUPTCY ACT,
SEC. 4-B, THAT "ANY MONEYED  ...  CORPORATION, EXCEPT (AN)  ...
INSURANCE  ...  CORPORATION,  ...  MAY BE ADJUDGED AN INVOLUNTARY
BANKRUPT."  THERE WAS A DEFAULT, ACQUIESCENCE AND AID TO THE TRUSTEE BY
THE BANKRUPT.  AFTER THE TIME FOR REVIEW OF THE ADJUDICATION HAD
EXPIRED, THE BANKRUPT FILED A MOTION TO VACATE THE ADJUDICATION AS NULL
AND VOID.  THIS COURT UPHELD THE MOTION.  IT WAS POINTED OUT THAT A
DETERMINATION OF A JURISDICTIONAL FACT SUCH AS WHETHER AN ALLEGED
BANKRUPT IS A FARMER, BINDS,  FN21  BUT THAT WHERE THERE WAS NO STATUTE
OF BANKRUPTCY APPLICABLE "NECESSARILY THERE IS NO POWER IN THE DISTRICT
COURT TO INCLUDE," THE EXCEPTED CORPORATION.  IT WAS THOUGHT THAT TO
RECOGNIZE THE BINDING EFFECT OF THE JUDGMENT WOULD BE TO EXTEND THE
JURISDICTION.  THIS DECISION IS INAPPLICABLE HERE BECAUSE THERE WAS NOT
AN ACTUALLY CONTESTED ISSUE AND ORDER AS TO JURISDICTION.  THE CASE IS
ALSO DISTINGUISHABLE BECAUSE THE MOTION TO VACATE WAS MADE IN THE SAME
BANKRUPTCY PROCEEDING AS THE ORDER.  WE DO NOT COMMENT UPON THE
SIGNIFICANCE OF THIS VARIABLE. 

TO APPRAISE THE CASES DEALING WITH STATUS AND TRANSFER OF TITLE TO
REAL ESTATE SEEMS OUTSIDE THE SCOPE OF THE PRESENT INQUIRY.  THE RULE
APPLIED HERE MAY OR MAY NOT BE APPLICABLE IN INSTANCES WHERE THE COURTS
WITH JURISDICTION OF THE LATER CONTROVERSY ARE PASSING UPON MATTERS OF
STATUS AND REAL ESTATE TITLES.  FN22 

IT IS FREQUENTLY SAID THAT THERE ARE CERTAIN STRICTLY JURISDICTIONAL
FACTS, THE EXISTENCE OF WHICH IS ESSENTIAL TO THE VALIDITY OF
PROCEEDINGS AND THE ABSENCE OF WHICH RENDERS THE ACT OF THE COURT A
NULLITY.  EXAMPLES WITH CITATIONS ARE LISTED IN NOBLE V. UNION RIVER
LOGGING R. CO. FN23 FOR INSTANCE, SERVICE OF PROCESS IN A COMMON LAW
ACTION WITHIN A STATE, PUBLICATION OF NOTICE IN STRICT FORM IN
PROCEEDINGS IN REM AGAINST ABSENT DEFENDANTS, THE APPOINTMENT OF AN
ADMINISTRATOR FOR A LIVING PERSON, A COURT MARTIAL OF A CIVILIAN.  UPON
THE OTHER HAND THERE ARE QUASI-JURISDICTIONAL FACTS, DIVERSITY OF
CITIZENSHIP, MAJORITY OF LITIGANTS, AND JURISDICTION OF PARTIES, A MERE
FINDING OF WHICH, REGARDLESS OF ACTUAL EXISTENCE, IS SUFFICIENT.  AS TO
THE FIRST GROUP IT IS SAID AN ADJUDICATION MAY BE COLLATERALLY
ATTACKED, AS TO THE SECOND IT MAY NOT.  WE DO NOT REVIEW THESE CASES AS
WE BASE OUR CONCLUSION HERE ON THE FACT THAT IN AN ACTUAL CONTROVERSY
THE QUESTION OF THE JURISDICTION OVER THE SUBJECT MATTER WAS RAISED AND
DETERMINED ADVERSELY TO THE RESPONDENT.  THAT DETERMINATION IS RES
ADJUDICATA OF THAT ISSUE IN THIS ACTION, WHETHER OR NOT POWER TO DEAL
WITH THE PARTICULAR SUBJECT MATTER WAS STRICTLY OR QUASI
JURISDICTIONAL.  JUDGMENT REVERSED. 

FN1  CRESCENT CITY LIVE STOCK CO. V. BUTCHERS' UNION, 120 U.S. 141,
146; EMBRY V. PALMER, 107 U.S. 3, 9; METCALF V. WATERTOWN, 153 U.S.
671, 676; ATCHISON, T. & S.F. RY. CO. V. SOWERS, 213 U.S. 55, 65. 

FN2  DUPASSEUR V. ROCHEREAU, 21 WALL.  130, 134; CRESCENT CITY LIVE
STOCK CO. V. BUTCHERS' UNION, 120 U.S. 141, 142; DES MOINES NAV. CO. V.
IOWA HOMESTEAD CO., 123 U.S. 552, 559; PITTSBURGH, C., C. & ST. L. RY.
CO. V. LONG ISLAND LOAN & TRUST CO., 172 U.S. 493, 507; MOTLOW V. STATE
EX REL. KOELN, 295 U.S. 97, 98. 

FN3

                              "GUARANTY. 

"FOR VALUE RECEIVED, THE UNDERSIGNED, DO HEREBY GUARANTEE THE PAYMENT
OF THE WITHIN BOND AND THE INTEREST THEREON, AT THE MATURITY THEREOF
EITHER BY THE TERMS OF SAID BOND OR OF ANY AGREEMENT EXTENDING THE TIME
OF PAYMENT THEREOF, OR BY ANTICIPATION OF MATURITY AT THE ELECTION OF
THE LEGAL HOLDER OR OWNER THEREOF, IN ACCORDANCE WITH ANY PROVISION OF
SAID BOND OR OF THE TRUST DEED GIVEN TO SECURE THE SAME, OR OF ANY
EXTENSION AGREEMENT; AND DO HEREBY ABSOLUTELY GUARANTEE THE PAYMENT OF
THE RESPECTIVE INTEREST COUPONS, GIVEN TO EVIDENCE THE INTEREST ON SAID
BOND, AND ALL EXTENSION COUPONS, AT THEIR RESPECTIVE DATES OF MATURITY,
AND ALL INTEREST ON SAID COUPONS, AND DO HEREBY ABSOLUTELY GUARANTEE
THE FULL AND COMPLETE PERFORMANCE BY THE MAKER OF THE TRUST DEED GIVEN
TO SECURE THE SAID BONDS AND COUPONS, AND ITS SUCCESSORS AND ASSIGNS,
OF ALL OF THE TERMS, PROVISIONS, COVENANTS AND AGREEMENTS OF THE SAID
TRUST DEED AND OF ANY SUCH EXTENSION AGREEMENT." 

FN4  368 ILL. 88; 12 N.E.2D 881. 

FN5  REV. STAT. SEC. 905.  "THE ACTS OF THE LEGISLATURE OF ANY STATE
OR TERRITORY, OR OF ANY COUNTRY SUBJECT TO THE JURISDICTION OF THE
UNITED STATES, SHALL BE AUTHENTICATED BY HAVING THE SEALS OF SUCH
STATE, TERRITORY, OR COUNTRY AFFIXED THERETO.  THE RECORDS AND JUDICIAL
PROCEEDINGS OF THE COURTS OF ANY STATE OR TERRITORY, OR OF ANY SUCH
COUNTRY, SHALL BE PROVED OR ADMITTED IN ANY OTHER COURT WITHIN THE
UNITED STATES, BY THE ATTESTATION OF THE CLERK, AND THE SEAL OF THE
COURT ANNEXED, IF THERE BE A SEAL, TOGETHER WITH A CERTIFICATE OF THE
JUDGE, CHIEF JUSTICE, OR PRESIDING MAGISTRATE, THAT THE SAID
ATTESTATION IS IN DUE FORM.  AND THE SAID RECORDS AND JUDICIAL
PROCEEDINGS, SO AUTHENTICATED, SHALL HAVE SUCH FAITH AND CREDIT GIVEN
TO THEM IN EVERY COURT WITHIN THE UNITED STATES AS THEY HAVE BY LAW OR
USAGE IN THE COURTS OF THE STATE FROM WHICH THEY ARE TAKEN." 

FN6  DUPASSEUR V. ROCHEREAU, 21 WALL.  130; EMBRY V. PALMER, 107 U.S.
3, 9; CF. METCALF V. WATERTOWN, 153 U.S. 671. 

FN7  DEPOSIT BANK V. FRANKFORT, 191 U.S. 499, 520. 

FN8  WE EXPRESS NO OPINION AS TO WHETHER THE BANKRUPTCY COURT DID OR
DID NOT HAVE JURISDICTION OF THE SUBJECT MATTER.  CF. IN RE DIVERSEY
BUILDING CORP., 86 F.2D 456; IN RE NINE NORTH CHURCH STREET, INC., 82
F.2D 186; UNION TRUST CO. V. WILLSEA, 275 N.Y. 164, 167; 9 N.E.2D 820. 

FN9  AS ILLUSTRATIONS OF THE EXERCISE OF THIS POWER, SEE TEXAS &
PACIFIC RY. CO. V. GULF, C. & S.F. RY. CO., 270 U.S. 266, 274; MATTER
OF GREGORY, 219 U.S. 210, 217. 

FN10  BALDWIN V. TRAVELING MEN'S ASSN., 283 U.S. 522. 

FN11  JONES V. UNITED STATES, 137 U.S. 202. 

FN12  CHICAGO LIFE INS. CO. V. CHERRY, 244 U.S. 25, 29. 

FN13  CHICAGO LIFE INS. CO. V. CHERRY, 244 U.S. 25, 30; BALDWIN V.
TRAVELING MEN'S ASSN., 283 U.S. 522, 525; DAVIS V. DAVIS, ANTE, P. 32. 

FN14  THE BANKRUPTCY COURT IS ONE OF GENERAL JURISDICTION.  FAIRBANKS
SHOVEL CO. V. WILLS, 240 U.S. 642, 649. 

FN15  166 U.S. 506, 515. 

FN16  ID. 517. 

FN17  123 U.S. 552. 

FN18  DOWELL V. APPLEGATE, 152 U.S. 327, 340. 

FN19  VALLELY V. NORTHERN FIRE & M. INS. CO., 254 U.S. 348, 354. 

FN20  254 U.S. 348. 

FN21  DENVER FIRST NAT. BANK V. KLUG, 186 U.S. 202. 

FN22  CF. ANDREWS V. ANDREWS, 188 U.S. 14; S.C. 176 MASS. 92; 57 N.E.
333; FALL V. EASTIN, 215 U.S. 1; CARPENTER V. STRANGE, 141 U.S. 87,
105. 

FN23  147 U.S. 165. 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 
..END :
























KELLOGG CO. V. NAT. BISCUIT CO., 305 U.S. 111 


NOS. 2 AND 56.  ARGUED OCTOBER 10, 1938.  - DECIDED NOVEMBER 14, 1938. 
91 F.2D 150 - 96 ID. 873, REVERSED. 


1.  THE TERM "SHREDDED WHEAT" IS GENERIC, AND NO EXCLUSIVE RIGHT TO
ITS USE MAY BE ACQUIRED.  P. 116. 

2.  MOREOVER, "SHREDDED WHEAT" WAS THE GENERAL DESIGNATION OF THE
PRODUCT MADE UNDER THE PRODUCT AND PROCESS PATENTS ISSUED TO PERKY,
UPON THE EXPIRATION WHEREOF THERE PASSED TO THE PUBLIC NOT ONLY THE
RIGHT TO MAKE THE ARTICLE AS IT WAS MADE DURING THE PATENT PERIOD, BUT
ALSO THE RIGHT TO APPLY THERETO THE NAME BY WHICH IT HAD BECOME KNOWN. 
P. 117. 

3.  TO ESTABLISH, BY APPLICATION OF THE DOCTRINE OF SECONDARY
MEANING, THE EXCLUSIVE RIGHT TO "SHREDDED WHEAT" AS A TRADE NAME, THE
CLAIMANT MUST SHOW THAT THE PRIMARY SIGNIFICANCE OF THE TERM IN THE
MINDS OF THE CONSUMING PUBLIC IS NOT THE PRODUCT BUT THE PRODUCER.  P.
118. 

4.  THE RIGHT OF A COMPETITOR, UPON EXPIRATION OF THE PATENTS, TO
MAKE THE PATENTED PRODUCT AND CALL IT BY ITS GENERIC NAME, COULD NOT BE
LOST BY DELAY, EVEN THOUGH THE EARLIER MANUFACTURER, IN THE PERIOD
BETWEEN THE EXPIRATION OF THE PATENTS AND THE TIME WHEN THE COMPETITOR
BECAME A FACTOR, HAD SPENT LARGE SUMS IN ADVERTISING THE PRODUCT.  THE
ONLY OBLIGATION OF THE COMPETITOR WAS TO IDENTIFY ITS OWN PRODUCT LEST
IT BE MISTAKEN FOR THAT OF THE EARLIER PRODUCER.  P. 119. 

5.  INASMUCH AS THE PILLOW-SHAPED BISCUIT WAS THE FORM IN WHICH
SHREDDED WHEAT WAS MADE UNDER THE PATENTS AND IN WHICH THE ARTICLE
BECAME GENERALLY KNOWN, THE FORM WAS DEDICATED TO THE PUBLIC UPON
EXPIRATION OF THE PATENTS.  P. 119. 

6.  UPON THE FACTS OF THIS CASE, HELD THAT THE KELLOGG COMPANY, IN
MAKING AND SELLING "SHREDDED WHEAT" BISCUITS UNDER THAT NAME, IN PILLOW
SHAPE FORM, IN COMPETITION WITH A SIMILAR PRODUCT OF THE NATIONAL
BISCUIT COMPANY (SUCCESSOR TO THE SHREDDED WHEAT COMPANY), WAS NOT
DOING SO UNFAIRLY.  THE OBLIGATION RESTING UPON THE KELLOGG COMPANY WAS
NOT TO INSURE THAT EVERY PURCHASER WOULD KNOW IT TO BE THE MAKER OF THE
BISCUITS SOLD BY IT, BUT TO USE EVERY REASONABLE MEANS TO PREVENT
CONFUSION.  P. 120. 

THERE WAS NO EVIDENCE IN THIS CASE OF "PASSING OFF" OR DECEPTION ON
THE PART OF THE KELLOGG COMPANY. 

7.  THE KELLOGG COMPANY IS NOT OBLIGED TO REFRAIN FROM USING THE NAME
"SHREDDED WHEAT" AND TO MAKE ITS BISCUIT IN SOME OTHER THAN THE PILLOW
SHAPE FORM.  IT IS ENTITLED TO SHARE IN THE GOODWILL OF AN ARTICLE
UNPROTECTED BY PATENT OR TRADE-MARK.  FURTHERMORE, THE EVIDENCE IS
PERSUASIVE THAT THE PILLOW-SHAPE FORM MUST BE USED, BECAUSE IT IS
FUNCTIONAL.  P. 121. 

8.  THE QUESTION WHETHER THE KELLOGG COMPANY'S USE UPON ITS PACKAGES
OF A PICTURE OF TWO SHREDDED WHEAT BISCUITS IN A BOWL WAS A VIOLATION
OF A TRADE-MARK OF THE NATIONAL BISCUIT COMPANY, HELD NOT BEFORE THIS
COURT ON THE PRESENT RECORD.  P. 122. 

KELLOGG COMPANY V. NATIONAL BISCUIT COMPANY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 304 U.S. 586, TO REVIEW A DECREE OF INJUNCTION AGAINST
THE PETITIONER AND A LATER ORDER CLARIFYING THE DECREE.  A PETITION FOR
CERTIORARI TO REVIEW THE FIRST DECREE HAD PREVIOUSLY BEEN DENIED, 302
U.S. 733.  JURISDICTION OF THE FEDERAL COURT WAS BASED UPON DIVERSITY
OF CITIZENSHIP. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT IN THE FEDERAL COURT FOR DELAWARE N1 BY
NATIONAL BISCUIT COMPANY AGAINST KELLOGG COMPANY TO ENJOIN ALLEGED
UNFAIR COMPETITION BY THE MANUFACTURE AND SALE OF THE BREAKFAST FOOD
COMMONLY KNOWN AS SHREDDED WHEAT.  THE COMPETITION WAS ALLEGED TO BE
UNFAIR MAINLY BECAUSE KELLOGG COMPANY USES, LIKE THE PLAINTIFF, THE
NAME SHREDDED WHEAT AND, LIKE THE PLAINTIFF, PRODUCES ITS BISCUIT IN
PILLOW-SHAPED FORM. 

SHREDDED WHEAT IS A PRODUCT COMPOSED OF WHOLE WHEAT WHICH HAS BEEN
BOILED, PARTIALLY DRIED, THEN DRAWN OR PRESSED OUT INTO THIN SHREDS AND
BAKED.  THE SHREDDED WHEAT BISCUIT GENERALLY KNOWN IS PILLOW-SHAPED IN
FORM.  IT WAS INTRODUCED IN 1893 BY HENRY D. PERKY, OF COLORADO; AND HE
WAS CONNECTED UNTIL HIS DEATH IN 1908 WITH COMPANIES FORMED TO MAKE AND
MARKET THE ARTICLE.  COMMERCIAL SUCCESS WAS NOT ATTAINED UNTIL THE
NATURAL FOOD COMPANY BUILT, IN 1901, A LARGE FACTORY AT NIAGARA FALLS,
NEW YORK.  IN 1908, ITS CORPORATE NAME WAS CHANGED TO "THE SHREDDED
WHEAT COMPANY"; AND IN 1930 ITS BUSINESS AND GOODWILL WERE ACQUIRED BY
NATIONAL BISCUIT COMPANY. 

KELLOGG COMPANY HAS BEEN IN THE BUSINESS OF MANUFACTURING BREAKFAST
FOOD CEREALS SINCE ITS ORGANIZATION IN 1905.  FOR A PERIOD COMMENCING
IN 1912 AND ENDING IN 1919 IT MADE A PRODUCT WHOSE FORM WAS SOMEWHAT
LIKE THE PRODUCT IN QUESTION, BUT WHOSE MANUFACTURE WAS DIFFERENT, THE
WHEAT BEING REDUCED TO A DOUGH BEFORE BEING PRESSED INTO SHREDS.  FOR A
SHORT PERIOD IN 1922 IT MANUFACTURED THE ARTICLE IN QUESTION.  IN 1927,
IT RESUMED MANUFACTURING THE PRODUCT.  IN 1928, THE PLAINTIFF SUED FOR
ALLEGED UNFAIR COMPETITION TWO DEALERS IN KELLOGG SHREDDED WHEAT
BISCUITS.  THAT SUIT WAS DISCONTINUED BY STIPULATION IN 1930.  ON JUNE
11, 1932, THE PRESENT SUIT WAS BROUGHT.  MUCH EVIDENCE WAS INTRODUCED;
BUT THE DETERMINATIVE FACTS ARE RELATIVELY FEW; AND AS TO MOST OF THESE
THERE IS NO CONFLICT. 

IN 1935, THE DISTRICT COURT DISMISSED THE BILL.  IT FOUND THAT THE
NAME "SHREDDED WHEAT" IS A TERM DESCRIBING ALIKE THE PRODUCT OF THE
PLAINTIFF AND OF THE DEFENDANT; AND THAT NO PASSING OFF OR DECEPTION
HAD BEEN SHOWN.  IT HELD THAT UPON THE EXPIRATION OF THE PERKY PATENT
NO. 548,086 ISSUED OCTOBER 15, 1895, THE NAME OF THE PATENTED ARTICLE
PASSED INTO THE PUBLIC DOMAIN.  IN 1936, THE CIRCUIT COURT OF APPEALS
AFFIRMED THAT DECREE.  UPON REHEARING, IT VACATED, IN 1937, ITS OWN
DECREE AND REVERSED THAT OF THE DISTRICT COURT, WITH DIRECTION "TO
ENTER A DECREE ENJOINING THE DEFENDANT FROM THE USE OF THE NAME
'SHREDDED WHEAT' AS ITS TRADE-NAME AND FROM ADVERTISING OR OFFERING FOR
SALE ITS PRODUCT IN THE FORM AND SHAPE OF PLAINTIFF'S BISCUIT IN
VIOLATION OF ITS TRADE-MARK; AND WITH FURTHER DIRECTIONS TO ORDER AN
ACCOUNTING FOR DAMAGES AND PROFITS."  IN ITS OPINION THE COURT
DESCRIBED THE TRADE-MARK AS "CONSISTING OF A DISH, CONTAINING TWO
BISCUITS SUBMERGED IN MILK."  91 F.2D 150, 152.  WE DENIED KELLOGG
COMPANY'S PETITION FOR A WRIT OF CERTIORARI, 302 U.S. 733; AND DENIED
REHEARING, 302 U.S. 777. 

ON JANUARY 5, 1938, THE DISTRICT COURT ENTERED ITS MANDATE IN THE
EXACT LANGUAGE OF THE ORDER OF THE CIRCUIT COURT OF APPEALS, AND ISSUED
A PERMANENT INJUNCTION.  SHORTLY THEREAFTER NATIONAL BISCUIT COMPANY
PETITIONED THE CIRCUIT COURT OF APPEALS TO RECALL ITS MANDATE "FOR
PURPOSES OF CLARIFICATION."  IT ALLEGED THAT KELLOGG COMPANY WAS
INSISTING, CONTRARY TO THE COURT'S INTENTION, THAT THE EFFECT OF THE
MANDATE AND WRIT OF INJUNCTION WAS TO FORBID IT FROM SELLING ITS
PRODUCT ONLY WHEN THE TRADE NAME "SHREDDED WHEAT" IS APPLIED TO A
BISCUIT IN THE FORM AND SHAPE OF THE PLAINTIFF'S BISCUIT AND IS
ACCOMPANIED BY A REPRESENTATION OF A DISH WITH BISCUITS IN IT; AND THAT
IT WAS NOT ENJOINED FROM MAKING ITS BISCUIT IN THE FORM AND SHAPE OF
THE PLAINTIFF'S BISCUIT, NOR FROM CALLING IT "SHREDDED WHEAT," UNLESS
AT THE SAME TIME IT USES UPON ITS CARTONS PLAINTIFF'S TRADE-MARK
CONSISTING OF A DISH WITH TWO BISCUITS IN IT.  ON MAY 5, 1938, THE
CIRCUIT COURT OF APPEALS GRANTED THE PETITION FOR CLARIFICATION AND
DIRECTED THE DISTRICT COURT TO ENTER A DECREE ENJOINING KELLOGG COMPANY
(96 F.2D 873): 

"(1) FROM THE USE OF THE NAME 'SHREDDED WHEAT' AS ITS TRADE NAME, (2)
FROM ADVERTISING OR OFFERING FOR SALE ITS PRODUCT IN THE FORM AND SHAPE
OF PLAINTIFF'S BISCUIT, AND (3) FROM DOING EITHER." 

KELLOGG COMPANY THEN FILED A PETITION FOR A WRIT OF CERTIORARI TO
REVIEW THE DECREE AS SO CLARIFIED, AND ALSO SOUGHT RECONSIDERATION OF
OUR DENIAL OF ITS PETITION FOR CERTIORARI TO REVIEW THE DECREE AS
ENTERED IN ITS ORIGINAL FORM.  IN SUPPORT OF THESE PETITIONS IT CALLED
TO OUR ATTENTION THE DECISION OF THE BRITISH PRIVY COUNCIL IN CANADIAN
SHREDDED WHEAT CO. V. KELLOGG CO. OF CANADA, 55 R.P.C. 125, RENDERED
AFTER OUR DENIAL OF THE PETITION FOR CERTIORARI EARLIER IN THE TERM. 
WE GRANTED BOTH PETITIONS FOR CERTIORARI.  FN2 

THE PLAINTIFF CONCEDES THAT IT DOES NOT POSSESS THE EXCLUSIVE RIGHT
TO MAKE SHREDDED WHEAT.  BUT IT CLAIMS THE EXCLUSIVE RIGHT TO THE TRADE
NAME "SHREDDED WHEAT" AND THE EXCLUSIVE RIGHT TO MAKE SHREDDED WHEAT
BISCUITS PILLOW-SHAPED.  IT CHARGES THAT THE DEFENDANT, BY USING THE
NAME AND SHAPE, AND OTHERWISE, IS PASSING OFF, OR ENABLING OTHERS TO
PASS OFF, KELLOGG GOODS FOR THOSE OF THE PLAINTIFF.  KELLOGG COMPANY
DENIES THAT THE PLAINTIFF IS ENTITLED TO THE EXCLUSIVE USE OF THE NAME
OR OF THE PILLOW-SHAPE; DENIES ANY PASSING OFF; ASSERTS THAT IT HAS
USED EVERY REASONABLE EFFORT TO DISTINGUISH ITS PRODUCT FROM THAT OF
THE PLAINTIFF; AND CONTENDS THAT IN HONESTLY COMPETING FOR A PART OF
THE MARKET FOR SHREDDED WHEAT IT IS EXERCISING THE COMMON RIGHT FREELY
TO MANUFACTURE AND SELL AN ARTICLE OF COMMERCE UNPROTECTED BY PATENT. 

FIRST.  THE PLAINTIFF HAS NO EXCLUSIVE RIGHT TO THE USE OF THE TERM
"SHREDDED WHEAT" AS A TRADE NAME.  FOR THAT IS THE GENERIC TERM OF THE
ARTICLE, WHICH DESCRIBES IT WITH A FAIR DEGREE OF ACCURACY; AND IS THE
TERM BY WHICH THE BISCUIT IN PILLOW-SHAPED FORM IS GENERALLY KNOWN BY
THE PUBLIC.  SINCE THE TERM IS GENERIC, THE ORIGINAL MAKER OF THE
PRODUCT ACQUIRED NO EXCLUSIVE RIGHT TO USE IT.  AS KELLOGG COMPANY HAD
THE RIGHT TO MAKE THE ARTICLE, IT HAD, ALSO, THE RIGHT TO USE THE TERM
BY WHICH THE PUBLIC KNOWS IT.  COMPARE SAXLEHNER V. WAGNER, 216 U.S.
375; HOLZAPFEL'S COMPOSITIONS CO. V. RAHTJEN'S AMERICAN COMPOSITION
CO., 183 U.S. 1.  EVER SINCE 1894 THE ARTICLE HAS BEEN KNOWN TO THE
PUBLIC AS SHREDDED WHEAT.  FOR MANY YEARS, THERE WAS NO ATTEMPT TO USE
THE TERM "SHREDDED WHEAT" AS A TRADE-MARK.  WHEN IN 1905 PLAINTIFF'S
PREDECESSOR, NATURAL FOOD COMPANY, APPLIED FOR REGISTRATION OF THE
WORDS "SHREDDED WHOLE WHEAT" AS A TRADE-MARK UNDER THE SO-CALLED "TEN
YEAR CLAUSE" OF THE ACT OF FEBRUARY 20, 1905, C. 592, SEC. 5, 33 STAT.
725, WILLIAM E. WILLIAMS GAVE NOTICE OF OPPOSITION.  UPON THE HEARING
IT APPEARED THAT WILLIAMS HAD, AS EARLY AS 1894, BUILT A MACHINE FOR
MAKING SHREDDED WHEAT, AND THAT HE MADE AND SOLD ITS PRODUCT AS
"SHREDDED WHOLE WHEAT."  THE COMMISSIONER OF PATENTS REFUSED
REGISTRATION.  THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA
AFFIRMED HIS DECISION, HOLDING THAT "THESE WORDS ACCURATELY AND APTLY
DESCRIBE AN ARTICLE OF FOOD WHICH  ...  HAS BEEN PRODUCED  ...  FOR
MORE THAN TEN YEARS  ...  " NATURAL FOOD CO. V. WILLIAMS, 30 APP. D.C.
348.  FN3 

MOREOVER, THE NAME "SHREDDED WHEAT," AS WELL AS THE PRODUCT, THE
PROCESS AND THE MACHINERY EMPLOYED IN MAKING IT, HAS BEEN DEDICATED TO
THE PUBLIC.  THE BASIC PATENT FOR THE PRODUCT AND FOR THE PROCESS OF
MAKING IT, AND MANY OTHER PATENTS FOR SPECIAL MACHINERY TO BE USED IN
MAKING THE ARTICLE, ISSUED TO PERKY.  IN THOSE PATENTS THE TERM
"SHREDDED" IS REPEATEDLY USED AS DESCRIPTIVE OF THE PRODUCT.  THE BASIC
PATENT EXPIRED OCTOBER 15, 1912; THE OTHERS SOON AFTER.  SINCE DURING
THE LIFE OF THE PATENTS "SHREDDED WHEAT" WAS THE GENERAL DESIGNATION OF
THE PATENTED PRODUCT, THERE PASSED TO THE PUBLIC UPON THE EXPIRATION OF
THE PATENT, NOT ONLY THE RIGHT TO MAKE THE ARTICLE AS IT WAS MADE
DURING THE PATENT PERIOD, BUT ALSO THE RIGHT TO APPLY THERETO THE NAME
BY WHICH IT HAD BECOME KNOWN.  AS WAS SAID IN SINGER MFG. CO. V. JUNE
MFG. CO., 163 U.S. 169, 185: 

"IT EQUALLY FOLLOWS FROM THE CESSATION OF THE MONOPOLY AND THE
FALLING OF THE PATENTED DEVICE INTO THE DOMAIN OF THINGS PUBLIC, THAT
ALONG WITH THE PUBLIC OWNERSHIP OF THE DEVICE THERE MUST ALSO
NECESSARILY PASS TO THE PUBLIC THE GENERIC DESIGNATION OF THE THING
WHICH HAS ARISEN DURING THE MONOPOLY.  ...  TO SAY OTHERWISE WOULD BE
TO HOLD THAT, ALTHOUGH THE PUBLIC HAD ACQUIRED THE DEVICE COVERED BY
THE PATENT, YET THE OWNER OF THE PATENT OR THE MANUFACTURER OF THE
PATENTED THING HAD RETAINED THE DESIGNATED NAME WHICH WAS ESSENTIALLY
NECESSARY TO VEST THE PUBLIC WITH THE FULL ENJOYMENT OF THAT WHICH HAD
BECOME THEIRS BY THE DISAPPEARANCE OF THE MONOPOLY." 

IT IS CONTENDED THAT THE PLAINTIFF HAS THE EXCLUSIVE RIGHT TO THE
NAME "SHREDDED WHEAT," BECAUSE THOSE WORDS ACQUIRED THE "SECONDARY
MEANING" OF SHREDDED WHEAT MADE AT NIAGARA FALLS BY THE PLAINTIFF'S
PREDECESSOR.  THERE IS NO BASIS HERE FOR APPLYING THE DOCTRINE OF
SECONDARY MEANING.  THE EVIDENCE SHOWS ONLY THAT DUE TO THE LONG PERIOD
IN WHICH THE PLAINTIFF OR ITS PREDECESSOR WAS THE ONLY MANUFACTURER OF
THE PRODUCT, MANY PEOPLE HAVE COME TO ASSOCIATE THE PRODUCT, AND AS A
CONSEQUENCE THE NAME BY WHICH THE PRODUCT IS GENERALLY KNOWN, WITH THE
PLAINTIFF'S FACTORY AT NIAGARA FALLS.  BUT TO ESTABLISH A TRADE NAME IN
THE TERM "SHREDDED WHEAT" THE PLAINTIFF MUST SHOW MORE THAN A
SUBORDINATE MEANING WHICH APPLIES TO IT.  IT MUST SHOW THAT THE PRIMARY
SIGNIFICANCE OF THE TERM IN THE MINDS OF THE CONSUMING PUBLIC IS NOT
THE PRODUCT BUT THE PRODUCER.  THIS IT HAS NOT DONE.  THE SHOWING WHICH
IT HAS MADE DOES NOT ENTITLE IT TO THE EXCLUSIVE USE OF THE TERM
SHREDDED WHEAT BUT MERELY ENTITLES IT TO REQUIRE THAT THE DEFENDANT USE
REASONABLE CARE TO INFORM THE PUBLIC OF THE SOURCE OF ITS PRODUCT. 

THE PLAINTIFF SEEMS TO CONTEND THAT EVEN IF KELLOGG COMPANY ACQUIRED
UPON THE EXPIRATION OF THE PATENTS THE RIGHT TO USE THE NAME SHREDDED
WHEAT, THE RIGHT WAS LOST BY DELAY.  THE ARGUMENT IS THAT KELLOGG
COMPANY, ALTHOUGH THE LARGEST PRODUCER OF BREAKFAST CEREALS IN THE
COUNTRY, DID NOT SERIOUSLY ATTEMPT TO MAKE SHREDDED WHEAT, OR TO
CHALLENGE PLAINTIFF'S RIGHT TO THAT NAME UNTIL 1927, AND THAT MEANWHILE
PLAINTIFF'S PREDECESSOR HAD EXPENDED MORE THAN $17,000,000 IN MAKING
THE NAME A HOUSEHOLD WORD AND IDENTIFYING THE PRODUCT WITH ITS
MANUFACTURE.  THOSE FACTS ARE WITHOUT LEGAL SIGNIFICANCE.  KELLOGG
COMPANY'S RIGHT WAS NOT ONE DEPENDENT UPON DILIGENT EXERCISE.  LIKE
EVERY OTHER MEMBER OF THE PUBLIC, IT WAS, AND REMAINED, FREE TO MAKE
SHREDDED WHEAT WHEN IT CHOSE TO DO SO; AND TO CALL THE PRODUCT BY ITS
GENERIC NAME.  THE ONLY OBLIGATION RESTING UPON KELLOGG COMPANY WAS TO
IDENTIFY ITS OWN PRODUCT LEST IT BE MISTAKEN FOR THAT OF THE
PLAINTIFF. 

SECOND.  THE PLAINTIFF HAS NOT THE EXCLUSIVE RIGHT TO SELL SHREDDED
WHEAT IN THE FORM OF A PILLOW-SHAPED BISCUIT - THE FORM IN WHICH THE
ARTICLE BECAME KNOWN TO THE PUBLIC.  THAT IS THE FORM IN WHICH SHREDDED
WHEAT WAS MADE UNDER THE BASIC PATENT.  THE PATENTED MACHINES USED WERE
DESIGNED TO PRODUCE ONLY THE PILLOW-SHAPED BISCUITS.  AND A DESIGN
PATENT WAS TAKEN OUT TO COVER THE PILLOW-SHAPED FORM.  FN4  HENCE, UPON
EXPIRATION OF THE PATENTS THE FORM, AS WELL AS THE NAME, WAS DEDICATED
TO THE PUBLIC.  AS WAS SAID IN SINGER MFG. CO. V. JUNE MFG. CO., SUPRA,
P. 185: 

"IT IS SELF EVIDENT THAT ON THE EXPIRATION OF A PATENT THE MONOPOLY
GRANTED BY IT CEASES TO EXIST, AND THE RIGHT TO MAKE THE THING FORMERLY
COVERED BY THE PATENT BECOMES PUBLIC PROPERTY.  IT IS UPON THIS
CONDITION THAT THE PATENT IS GRANTED.  IT FOLLOWS, AS A MATTER OF
COURSE, THAT ON THE TERMINATION OF THE PATENT THERE PASSES TO THE
PUBLIC THE RIGHT TO MAKE THE MACHINE IN THE FORM IN WHICH IT WAS
CONSTRUCTED DURING THE PATENT.  WE MAY, THEREFORE, DISMISS WITHOUT
FURTHER COMMENT THE COMPLAINT, AS TO THE FORM IN WHICH THE DEFENDANT
MADE HIS MACHINES." 

WHERE AN ARTICLE MAY BE MANUFACTURED BY ALL, A PARTICULAR
MANUFACTURER CAN NO MORE ASSERT EXCLUSIVE RIGHTS IN A FORM IN WHICH THE
PUBLIC HAS BECOME ACCUSTOMED TO SEE THE ARTICLE AND WHICH, IN THE MINDS
OF THE PUBLIC, IS PRIMARILY ASSOCIATED WITH THE ARTICLE RATHER THAN A
PARTICULAR PRODUCER, THAN IT CAN IN THE CASE OF A NAME WITH SIMILAR
CONNECTIONS IN THE PUBLIC MIND.  KELLOGG COMPANY WAS FREE TO USE THE
PILLOW-SHAPED FORM, SUBJECT ONLY TO THE OBLIGATION TO IDENTIFY ITS
PRODUCT LEST IT BE MISTAKEN FOR THAT OF THE PLAINTIFF. 

THIRD.  THE QUESTION REMAINS WHETHER KELLOGG COMPANY IN EXERCISING
ITS RIGHT TO USE THE NAME "SHREDDED WHEAT" AND THE PILLOW-SHAPED
BISCUIT, IS DOING SO FAIRLY.  FAIRNESS REQUIRES THAT IT BE DONE IN A
MANNER WHICH REASONABLY DISTINGUISHES ITS PRODUCT FROM THAT OF
PLAINTIFF.    EACH COMPANY SELLS ITS BISCUITS ONLY IN CARTONS.  THE
STANDARD KELLOGG CARTON CONTAINS FIFTEEN BISCUITS; THE PLAINTIFF'S
TWELVE.  THE KELLOGG CARTONS ARE DISTINCTIVE.  THEY DO NOT RESEMBLE
THOSE USED BY THE PLAINTIFF EITHER IN SIZE, FORM, OR COLOR.  AND THE
DIFFERENCE IN THE LABELS IS STRIKING.  THE KELLOGG CARTONS BEAR IN BOLD
SCRIPT THE NAMES "KELLOGG'S WHOLE WHEAT BISCUIT" OR "KELLOGG'S SHREDDED
WHOLE WHEAT BISCUIT" SO SIZED AND SPACED AS TO STRIKE THE EYE AS BEING
A KELLOGG PRODUCT.  IT IS TRUE THAT ON SOME OF ITS CARTONS IT HAD A
PICTURE OF TWO SHREDDED WHEAT BISCUITS IN A BOWL OF MILK WHICH WAS
QUITE SIMILAR TO ONE OF THE PLAINTIFF'S REGISTERED TRADE-MARKS.  BUT
THE NAME KELLOGG WAS SO PROMINENT ON ALL OF THE DEFENDANT'S CARTONS AS
TO MINIMIZE THE POSSIBILITY OF CONFUSION. 

SOME HOTELS, RESTAURANTS, AND LUNCHROOMS SERVE BISCUITS NOT IN
CARTONS AND GUESTS SO SERVED MAY CONCEIVABLY SUPPOSE THAT A KELLOGG
BISCUIT SERVED IS ONE OF THE PLAINTIFF'S MAKE.  BUT NO PERSON FAMILIAR
WITH PLAINTIFF'S PRODUCT WOULD BE MISLED.  THE KELLOGG BISCUIT IS ABOUT
TWO-THIRDS THE SIZE OF PLAINTIFF'S; AND DIFFERS FROM IT IN APPEARANCE. 
MOREOVER, THE FIELD IN WHICH DECEPTION COULD BE PRACTICED IS NEGLIGIBLY
SMALL.  ONLY 2 1/2 PER CENT OF THE KELLOGG BISCUITS ARE SOLD TO HOTELS,
RESTAURANTS AND LUNCHROOMS.  OF THOSE SO SOLD 98 PER CENT ARE SOLD IN
INDIVIDUAL CARTONS CONTAINING TWO BISCUITS.  THESE CARTONS ARE
DISTINCTIVE AND BEAR PROMINENTLY THE KELLOGG NAME.  TO PUT UPON THE
INDIVIDUAL BISCUIT SOME MARK WHICH WOULD IDENTIFY IT AS THE KELLOGG
PRODUCT IS NOT COMMERCIALLY POSSIBLE.  RELATIVELY FEW BISCUITS WILL BE
REMOVED FROM THE INDIVIDUAL CARTONS BEFORE THEY REACH THE CONSUMER. 
THE OBLIGATION RESTING UPON KELLOGG COMPANY IS NOT TO INSURE THAT EVERY
PURCHASER WILL KNOW IT TO BE THE MAKER BUT TO USE EVERY REASONABLE
MEANS TO PREVENT CONFUSION. 

IT IS URGED THAT ALL POSSIBILITY OF DECEPTION OR CONFUSION WOULD BE
REMOVED IF KELLOGG COMPANY SHOULD REFRAIN FROM USING THE NAME "SHREDDED
WHEAT" AND ADOPT SOME FORM OTHER THAN THE PILLOW-SHAPE.  BUT THE NAME
AND FORM ARE INTEGRAL PARTS OF THE GOODWILL OF THE ARTICLE.  TO SHARE
FULLY IN THE GOODWILL, IT MUST USE THE NAME AND THE PILLOW-SHAPE.  AND
IN THE GOODWILL KELLOGG COMPANY IS AS FREE TO SHARE AS THE PLAINTIFF. 
COMPARE WILLIAM R. WARNER & CO. V. ELI LILLY & CO., 265 U.S. 526, 528,
530.  MOREOVER, THE PILLOW-SHAPE MUST BE USED FOR ANOTHER REASON.  THE
EVIDENCE IS PERSUASIVE THAT THIS FORM IS FUNCTIONAL - THAT THE COST OF
THE BISCUIT WOULD BE INCREASED AND ITS HIGH QUALITY LESSENED IF SOME
OTHER FORM WERE SUBSTITUTED FOR THE PILLOW-SHAPE. 

KELLOGG COMPANY IS UNDOUBTEDLY SHARING IN THE GOODWILL OF THE ARTICLE
KNOWN AS "SHREDDED WHEAT"; AND THUS IS SHARING IN A MARKET WHICH WAS
CREATED BY THE SKILL AND JUDGMENT OF PLAINTIFF'S PREDECESSOR AND HAS
BEEN WIDELY EXTENDED BY VAST EXPENDITURES IN ADVERTISING PERSISTENTLY
MADE.  BUT THAT IS NOT UNFAIR.  SHARING IN THE GOODWILL OF AN ARTICLE
UNPROTECTED BY PATENT OR TRADE-MARK IS THE EXERCISE OF A RIGHT
POSSESSED BY ALL - AND IN THE FREE EXERCISE OF WHICH THE CONSUMING
PUBLIC IS DEEPLY INTERESTED.  THERE IS NO EVIDENCE OF PASSING OFF OR
DECEPTION ON THE PART OF THE KELLOGG COMPANY; FN5  AND IT HAS TAKEN
EVERY REASONABLE PRECAUTION TO PREVENT CONFUSION OR THE PRACTICE OF
DECEPTION IN THE SALE OF ITS PRODUCT. 

FOURTH.  BY ITS "CLARIFYING" DECREE, THE CIRCUIT COURT OF APPEALS
ENJOINED KELLOGG COMPANY FROM USING THE PICTURE OF THE TWO SHREDDED
WHEAT BISCUITS IN THE BOWL ONLY IN CONNECTION WITH AN INJUNCTION
AGAINST MANUFACTURING THE PILLOW-SHAPED BISCUITS AND THE USE OF THE
TERM SHREDDED WHEAT, ON THE GROUNDS OF UNFAIR COMPETITION.  FN6  THE
USE OF THIS PICTURE WAS NOT ENJOINED ON THE INDEPENDENT GROUND OF TRADE
MARK INFRINGEMENT.  SINCE THE NATIONAL BISCUIT COMPANY DID NOT PETITION
FOR CERTIORARI, THE QUESTION WHETHER USE OF THE PICTURE IS A VIOLATION
OF THAT TRADE-MARK ALTHOUGH KELLOGG COMPANY IS FREE TO USE THE NAME AND
THE PILLOW-SHAPED BISCUIT IS NOT HERE FOR REVIEW.  DECREES REVERSED
WITH DIRECTION TO DISMISS THE BILL. 

FN1  THE FEDERAL JURISDICTION RESTS ON DIVERSITY OF CITIZENSHIP -
NATIONAL BISCUIT COMPANY BEING A NEW JERSEY CORPORATION AND KELLOGG
COMPANY A DELAWARE CORPORATION.  MOST OF THE ISSUES IN THE CASE INVOLVE
QUESTIONS OF COMMON LAW AND HENCE ARE WITHIN THE SCOPE OF ERIE R. CO.
V. TOMPKINS, 304 U.S. 64(1938).  BUT NO CLAIM HAS BEEN MADE THAT THE
LOCAL LAW IS ANY DIFFERENT FROM THE GENERAL LAW ON THE SUBJECT, AND
BOTH PARTIES HAVE RELIED ALMOST ENTIRELY ON FEDERAL PRECEDENTS. 

FN2  RIGHTS HERE CLAIMED BY PLAINTIFF HAVE BEEN INVOLVED IN MUCH
OTHER LITIGATION.  SEE NATURAL FOOD CO. V. WILLIAMS, 30 APP. D.C. 348;
SHREDDED WHEAT CO. V. HUMPHREY CORNELL CO., 250 F. 960(C.C.A.2D);
KELLOGG CO. V. NATIONAL BISCUIT CO., 71 F.2D 662(C.C.A.2D); CANADIAN
SHREDDED WHEAT CO. V. KELLOGG CO. OF CANADA, 55 R.P.C. 125; IN RE TRADE
MARK NO. 500761, REGISTERED IN THE NAME OF THE SHREDDED WHEAT CO.,
LTD., IN CLASS 42(1938) SUPREME COURT OF JUDICATURE, COURT OF APPEAL;
ALSO NATURAL FOOD CO. V. BUCKLEY, NO. 28,530, U.S. DIST. CT., N. DIST.
ILL., EAST.  DIV.  (1908). 

FN3  THE TRADE-MARKS ARE REGISTERED UNDER THE ACT OF 1920.  41 STAT.
533, 15 U.S.C. SECS. 121-28(1934).  BUT IT IS WELL SETTLED THAT
REGISTRATION UNDER IT HAS NO EFFECT ON THE DOMESTIC COMMON-LAW RIGHTS
OF THE PERSON WHOSE TRADE-MARK IS REGISTERED.  CHARLES BROADWAY ROUSS,
INC. V. WINCHESTER CO., 300 F. 706, 713, 714(C.C.A.2D); KELLOGG CO. V.
NATIONAL BISCUIT CO., 71 F.2D 662, 666(C.C.A.2D). 

FN4  THE DESIGN PATENT WOULD HAVE EXPIRED BY LIMITATIONS IN 1909.  IN
1908 IT WAS DECLARED INVALID BY A DISTRICT JUDGE ON THE GROUND THAT THE
DESIGN HAD BEEN IN PUBLIC USE FOR MORE THAN TWO YEARS PRIOR TO THE
APPLICATION FOR THE PATENT AND THERETOFORE HAD ALREADY BEEN DEDICATED
TO THE PUBLIC.  NATURAL FOODS CO. V. BULKLEY, NO. 28,530, U.S. DIST.
CT., N. DIST. ILL., EAST.  DIV.  (1908). 

FN5  ATTENTION IS CALLED TO THE FACT THAT THE LABEL ON THESE KELLOGG
CARTONS BEARS, IN SMALL LETTERS, THE WORDS:  "THE ORIGINAL HAS THIS
(W.K. KELLOGG'S) SIGNATURE."  OBJECTION TO THEIR USE WAS NOT CHARGED IN
THE BILL; NO SUCH ISSUE WAS RAISED AT THE TRIAL; AND THE USE WAS NOT
ENJOINED.  COUNSEL FOR THE COMPANY ADMITTED IN THE ARGUMENT BEFORE US
THAT ITS USE, COMMON AS APPLIED TO OTHER KELLOGG PRODUCTS, SHOULD NOT
HAVE BEEN MADE ON CARTONS OF SHREDDED WHEAT; AND STATED THAT THE USE
HAD BEEN DISCONTINUED LONG BEFORE ENTRY OF THE "CLARIFYING" DECREE. 

FN6  IN ITS OPINION CLARIFYING THE MANDATE, THE CIRCUIT COURT OF
APPEALS, AFTER CONSIDERING THE PROVISIONS CONCERNING THE NAME AND THE
FORM OF THE BISCUIT, SAID (96 F.2D 873, 875): 

"THE ONLY REMAINING QUESTION IS WHETHER, IN VIEW OF THE FACT THAT THE
ORDER OF APRIL 12, 1937, DID NOT SPECIFICALLY PROVIDE FOR AN INJUNCTION
AGAINST THE VIOLATION OF THE TWO-BISCUIT-IN-A-DISH TRADE-MARK (ALTHOUGH
IT WAS INTENDED TO DO SO) WE HAVE ANY JURISDICTION TO AMEND THE MANDATE
SO AS TO INCLUDE SPECIFICALLY SUCH A PROVISION.  AS THERE MAY BE SOME
DOUBT ON THIS QUESTION, WE WILL NOT AMEND THE MANDATE SO AS TO PROVIDE
A SPECIFIC INJUNCTION AGAINST THE USE OF THE TWO-BISCUIT-IN-A-DISH
TRADE-MARK.  ITS USE ON A CARTON OR IN ADVERTISING MATTER, WHEN THE
DEFENDANT IS NOT PERMITTED TO USE THE WORD 'SHREDDED WHEAT' AS A TRADE
NAME OR TO ADVERTISE OR SELL BISCUITS IN THE PILLOW-SHAPE FORM, WOULD
MANIFESTLY BE SO IMPROPER AND SO LIKELY TO MISLEAD THAT WE WILL ASSUME
THAT THE APPELLEE WILL NOT USE IT." 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER ARE OF OPINION THAT THE
DECREE OF THE CIRCUIT COURT OF APPEALS IS CORRECT AND SHOULD BE
AFFIRMED.  TO THEM IT SEEMS SUFFICIENTLY CLEAR THAT THE KELLOGG COMPANY
IS FRAUDULENTLY SEEKING TO APPROPRIATE TO ITSELF THE BENEFITS OF A
GOODWILL BUILT UP AT GREAT COST BY THE RESPONDENT AND ITS
PREDECESSORS. 
..END :















GREAT NORTHERN RAILWAY CO. V. LEONIDAS, 305 U.S. 1 


NO. 8.  ARGUED OCTOBER 11, 1938.  - DECIDED NOVEMBER 7, 1938.  - 105
MONT. 302 - 72 P.2D 1007, AFFIRMED IN PART. 


1.  SECTION 54 OF THE FEDERAL EMPLOYERS' LIABILITY ACT, PROVIDING THAT
AN EMPLOYEE OF A COMMON CARRIER SHALL NOT BE HELD TO HAVE ASSUMED THE
RISKS OF HIS EMPLOYMENT "IN ANY CASE WHERE THE VIOLATION BY SUCH COMMON
CARRIER OF ANY STATUTE ENACTED FOR THE SAFETY OF EMPLOYEES CONTRIBUTED
TO THE INJURY OR DEATH OF SUCH EMPLOYEE," RELATES TO STATUTES
SUBJECTING CARRIERS IN INTERSTATE COMMERCE TO PARTICULAR OBLIGATIONS
FOR THE SAFETY OF THEIR EMPLOYEES, SUCH AS THE SAFETY APPLIANCE ACTS,
NOT TO THE FEDERAL EMPLOYERS' LIABILITY ACT ITSELF.  P. 2. 

WHERE SUCH VIOLATIONS ARE NOT INVOLVED, THE DEFENSE OF ASSUMPTION OF
RISK IS AVAILABLE IN ACTIONS UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT.  P. 2. 

2.  THE DEFENSE OF ASSUMPTION OF RISK IS FOR THE JURY, UNDER PROPER
INSTRUCTIONS, WHERE THERE IS EVIDENCE TENDING TO SUPPORT IT.  P. 3. 

GREAT NORTHERN RAILWAY CO. ET AL. V. LEONIDAS. 

CERTIORARI TO THE SUPREME COURT OF MONTANA. 

CERTIORARI, 303 U.S. 632, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE RAILWAY COMPANY AND ONE OF ITS EMPLOYEES IN AN ACTION FOR
PERSONAL INJURIES.  THE WRIT OF CERTIORARI IS DISMISSED AS TO THE
EMPLOYEE FOR WANT OF A PROPERLY PRESENTED FEDERAL QUESTION. 

PER CURIAM. 

THIS ACTION WAS BROUGHT BY GEORGE LEONIDAS, AN EMPLOYEE OF THE GREAT
NORTHERN RAILWAY COMPANY, AGAINST THAT COMPANY AND GEORGE PAPPAS,
ANOTHER OF ITS EMPLOYEES, TO RECOVER DAMAGES FOR PERSONAL INJURIES
ALLEGED TO HAVE BEEN CAUSED BY DEFENDANTS' NEGLIGENCE.  THE COMPLAINT
SET FORTH TWO CAUSES OF ACTION BUT AT THE TRIAL PLAINTIFF ELECTED TO
STAND UPON THE SECOND CAUSE OF ACTION, WHICH WAS BASED UPON THE FEDERAL
EMPLOYERS' LIABILITY ACT.  45 U.S.C. 51-59.  DEFENDANTS' MOTION FOR THE
DIRECTION OF A VERDICT IN THEIR FAVOR WAS DENIED AND THE JURY FOUND FOR
THE PLAINTIFF.  THE SUPREME COURT OF THE STATE AFFIRMED THE JUDGMENT. 
105 MONT. 302; 72 P.2D 1007. 

AFTER RULING THAT UPON THE EVIDENCE THE QUESTION OF PLAINTIFF'S
ASSUMPTION OF RISK WAS ONE FOR THE JURY, THE COURT STATED AS A FURTHER
GROUND FOR AFFIRMING THE JUDGMENT THAT THE DEFENSE OF ASSUMPTION OF
RISK WAS NOT AVAILABLE UNDER THE FEDERAL STATUTE.  THE COURT POINTED TO
THE PROVISION (SEC. 54) THAT AN EMPLOYEE OF THE COMMON CARRIER SHALL
NOT BE HELD TO HAVE ASSUMED THE RISKS OF HIS EMPLOYMENT "IN ANY CASE
WHERE THE VIOLATION BY SUCH COMMON CARRIER OF ANY STATUTE ENACTED FOR
THE SAFETY OF EMPLOYEES CONTRIBUTED TO THE INJURY OR DEATH OF SUCH
EMPLOYEE."  THE COURT RULED THAT THE FEDERAL EMPLOYERS' LIABILITY ACT
WAS ONE INTENDED TO PROMOTE THE SAFETY OF EMPLOYEES AND HENCE THAT THE
DEFENSE OF ASSUMPTION OF RISK WAS BARRED. 

THIS RULING WAS ERROR.  THE PROVISION OF SEC. 54 RELATES TO SUCH
STATUTES AS THE SAFETY APPLIANCE ACTS (MARCH 2, 1893, C. 196, 27 STAT.
531; MARCH 2, 1903, C. 976, 32 STAT. 943; APRIL 14, 1910, C. 160, 36
STAT. 298; FEBRUARY 17, 1911, C. 103, 36 STAT. 913); THE HOURS OF
SERVICE ACT (MARCH 4, 1907, C. 2939, 34 STAT. 1415); AND OTHER STATUTES
SUBJECTING CARRIERS IN INTERSTATE COMMERCE TO PARTICULAR OBLIGATIONS
FOR THE SAFETY OF THEIR EMPLOYEES.  SEABOARD AIR LINE RY. V. HORTON,
233 U.S. 492, 503; JACOBS V. SOUTHERN RAILWAY CO., 241 U.S. 229, 235,
236.  WHERE SUCH VIOLATIONS ARE NOT INVOLVED, THE DEFENSE OF ASSUMPTION
OF RISK IS AVAILABLE IN ACTIONS UNDER THE FEDERAL EMPLOYERS' LIABILITY
ACT.  SEABOARD AIR LINE RY. V. HORTON, SUPRA; JACOBS V. SOUTHERN
RAILWAY CO., SUPRA; ATCHISON, T. & S.F. RY. CO. V. SWEARINGEN, 239 U.S.
339, 344; BAUGHAM V. NEW YORK, P. & N.R. CO., 241 U.S. 237, 241;
CHICAGO, R.I. & P. RY. CO. V. WARD, 252 U.S. 18, 21. 

DESPITE THIS ERRONEOUS RULING, WE ARE OF THE OPINION THAT THE
JUDGMENT SHOULD BE AFFIRMED UPON THE FIRST GROUND TAKEN BY THE STATE
COURT, THAT IS, THAT THE QUESTION OF ASSUMPTION OF RISK WAS FOR THE
JURY.  IT IS NOT CONTENDED THAT THE INSTRUCTIONS OF THE TRIAL COURT
UPON THAT DEFENSE WERE ERRONEOUS.  THE CONTENTION IS THAT THERE WAS NO
EVIDENCE TO GO TO THE JURY.  WE THINK THAT THERE WAS. 

THE JUDGMENT IS AFFIRMED WITH RESPECT TO THE PETITIONER GREAT
NORTHERN RAILWAY COMPANY.  AS TO THE PETITIONER GEORGE PAPPAS, THE WRIT
OF CERTIORARI IS DISMISSED UPON THE GROUND THAT THE FEDERAL QUESTION AS
TO THE RIGHT OF RECOVERY UNDER THE ACT AGAINST HIM INDIVIDUALLY, AS
DISTINGUISHED FROM THE RAILWAY COMPANY, WAS NOT PROPERLY PRESENTED. 
AFFIRMED IN PART; DISMISSED IN PART. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE WRIT OF CERTIORARI
SHOULD BE DISMISSED AS TO BOTH PETITIONERS. 
..END :









TEXAS THEATRES V. PITTMAN, 305 U.S. 3 


NO. 26.  SUBMITTED OCTOBER 19, 1938.  - DECIDED NOVEMBER 7, 1938. 


TEXAS CONSOLIDATED THEATRES, INC. V. PITTMAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 304 U.S. 556, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS, 93 F.2D 21; 94 ID. 203, AFFIRMING A JUDGMENT FOR DAMAGES
AGAINST PETITIONER, DISMISSED, WITH COSTS, IN VIEW OF SUBSEQUENT
SETTLEMENT IN THE DISTRICT COURT &C. 

PER CURIAM. 

RESPONDENT RECOVERED JUDGMENT FOR DAMAGES IN AN ACTION FOR INJURIES
SUFFERED BY HIS WIFE.  AFTER APPEAL HAD BEEN ARGUED AND WHILE IT WAS
UNDER ADVISEMENT IN THE CIRCUIT COURT OF APPEALS, THE PARTIES ENTERED
INTO A STIPULATION FOR SETTLEMENT ON PAYMENT OF A SUM LESS THAN THE
JUDGMENT AND PROVIDING THAT THE JUDGMENT SHOULD BE REVERSED AND
JUDGMENT ENTERED IN THE DISTRICT COURT FOR COSTS ONLY.  THE CIRCUIT
COURT OF APPEALS AFFIRMED THE JUDGMENT.  93 F.2D 21.  ALLEGING THAT THE
COURT HAD BEEN INFORMED OF THE COMPROMISE AND STIPULATION, PETITIONER
SOUGHT A REHEARING, WHICH WAS DENIED.  94 F.2D 203.  WE GRANTED
CERTIORARI. 

UPON THE CASE BEING CALLED FOR ARGUMENT IN THIS COURT, RESPONDENT DID
NOT APPEAR.  PETITIONER SUBMITTED A STATEMENT SHOWING THAT, SINCE THE
ISSUE OF THE WRIT, AN ORDER UPON HEARING HAD BEEN ENTERED IN THE
DISTRICT COURT WHEREBY THE JUDGMENT INVOLVED WAS DECREED TO BE
SATISFIED AND DISCHARGED IN FULL AND THE ISSUE OF EXECUTION THEREON WAS
PROHIBITED; THAT RESPONDENT EXCEPTED TO THE ORDER AND GAVE NOTICE OF
APPEAL BUT THAT THE APPEAL HAD NOT BEEN PROSECUTED. 

PETITIONER SUBMITTED THE CASE FOR SUCH ORDER AS THE COURT MAY DEEM
PROPER AND SUGGESTED THAT THE COSTS OF THIS PROCEEDING MAY BE TAXED
AGAINST IT. 

THE WRIT OF CERTIORARI IS DISMISSED WITH COSTS AGAINST PETITIONER. 
DISMISSED. 
..END :












POLK COMPANY V. GLOVER, 305 U.S. 5 


NO. 29.  ARGUED OCTOBER 20, 1938.  - DECIDED NOVEMBER 7, 1938.  - 22
F.SUPP.  575, REVERSED. 


1.  IN DECIDING A MOTION TO DISMISS A BILL UPON THE GROUND THAT IT
FAILS TO STATE A CAUSE OF ACTION, THE COURT IS NOT AT LIBERTY TO
CONSIDER AFFIDAVITS OR OTHER EVIDENCE PRODUCED IN SUPPORT OF AN
ACCOMPANYING APPLICATION FOR AN INTERLOCUTORY INJUNCTION, BUT MUST
DECIDE UPON THE FACTS SET UP IN THE BILL.  P. 9. 

THE MOTION WAS ACCOMPANIED ALSO BY ANSWERS; BUT PLAINTIFFS DID NOT
SUBMIT THE CASE TO BE DECIDED UPON THE MERITS UPON THE BILL, ANSWERS
AND AFFIDAVITS. 

2.  BEFORE DECIDING GRAVE CONSTITUTIONAL QUESTIONS, THE ESSENTIAL
FACTS UPON WHICH THEY DEPEND SHOULD BE DETERMINED AFTER A HEARING IN
DUE COURSE UPON THE ISSUES RAISED BY THE PLEADINGS.  P. 9. 

A FLORIDA STATUTE REQUIRED THAT THE LABELS UPON CONTAINERS OF CANNED
CITRUS FRUIT OR FRUIT JUICE NAME THE STATE OR COUNTRY WHERE THE
CONTENTS WERE PRODUCED, AND, IF PRODUCED IN FLORIDA, THAT THE NAME
"FLORIDA" BE IN OR EMBOSSED UPON THE SUBSTANCE OF EACH CONTAINER. 
VIOLATION WAS MADE PUNISHABLE AS A CRIME AND BY CONFISCATION.  CANNERS
OF CITRUS PRODUCTS GROWN IN FLORIDA ATTACKED THE STATUTE UPON THE
GROUND THAT ITS PRESENT ENFORCEMENT WOULD INFLICT IMMEDIATE AND
IRREPARABLE INJURY BECAUSE OF THE COST OF SORTING, CLASSIFYING AND
OVERPRINTING LARGE STOCKS OF LABELS ON HAND; AND BECAUSE THE TINNED
CONTAINERS ON HAND, OF GREAT VALUE, COULD NOT BE EMBOSSED AS REQUIRED
WITHOUT IMPAIRING THE PROTECTIVE COATING OF TIN, SO THAT SUBSEQUENT USE
WOULD RESULT IN SPOILAGE OF CONTENTS AND MUCH LOSS TO THE PLAINTIFFS'
BUSINESS.  IT IS HELD, WITHOUT INTIMATING ANY OPINION ON CONSTITUTIONAL
ISSUES, THAT THE FACTS ALLEGED IN THE BILL WERE SUCH AS TO ENTITLE
PLAINTIFFS TO AN OPPORTUNITY TO PROVE THEIR CASE, AND THAT THE COURT
BELOW SHOULD NOT HAVE UNDERTAKEN TO DISPOSE OF THOSE ISSUES IN DENIAL
OF THAT OPPORTUNITY.  THE ALLEGATIONS AS TO TRADE CONDITIONS AND
PRACTICES, AND AS TO THE EFFECT OF THE REQUIRED EMBOSSING OF CANS,
RAISED PARTICULAR QUESTIONS WHICH COULD HARDLY BE SAID TO LIE WITHIN
THE RANGE OF JUDICIAL NOTICE. 

POLK COMPANY ET AL. V. GLOVER, COUNTY SOLICITOR, ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF FLORIDA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, DENYING AN
INTERLOCUTORY INJUNCTION AND DISMISSING THE BILL, IN A SUIT TO ENJOIN
ENFORCEMENT OF A STATUTE RELATING TO THE LABELING &C. OF CANNED CITRUS
PRODUCTS. 

PER CURIAM. 

PLAINTIFFS, ENGAGED IN THE BUSINESS OF CANNING CITRUS PRODUCTS GROWN
IN THE STATE OF FLORIDA, CHALLENGED BY THIS SUIT THE VALIDITY OF
CHAPTER 17,783 OF THE ACTS OF 1937 OF THAT STATE UPON THE GROUND THAT
THE STATUTE VIOLATED THE STATE CONSTITUTION AND ALSO THE COMMERCE
CLAUSE, AND THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT, OF THE FEDERAL CONSTITUTION.  AN INTERLOCUTORY
INJUNCTION WAS SOUGHT AND A COURT OF THREE JUDGES WAS CONVENED. 

RECITING THAT CERTAIN PERSONS ARE ENGAGED IN IMPORTING INTO FLORIDA
CITRUS FRUIT AND CITRUS JUICE PRODUCED AND CANNED ELSEWHERE, AND IN
LABELING THE SAME IN FLORIDA WHENCE IT IS SOLD, WITH THE RESULT THAT
DEALERS ARE DECEIVED AND PRODUCERS AND CANNERS IN FLORIDA ARE INJURED,
THE STATUTE PROVIDES THAT EVERY LABEL UPON ANY CONTAINER OF CANNED
CITRUS FRUIT OR JUICE SHALL SHOW ACCURATELY THE NAME OF THE STATE OR
COUNTRY IN WHICH THE FRUIT OR JUICE WAS PRODUCED, AND THAT EVERY
CONTAINER USED FOR SUCH FRUIT OR JUICE PRODUCED IN FLORIDA "SHALL HAVE
STAMPED INTO OR EMBOSSED UPON THE TIN, GLASS OR OTHER SUBSTANCE OF
WHICH SUCH CONTAINER IS MADE" THE WORD "FLORIDA," AND IT IS MADE
UNLAWFUL FOR ANYONE TO USE ANY CONTAINER BEARING THE NAME "FLORIDA" FOR
ANY CANNED CITRUS FRUIT OR JUICE PRODUCED ELSEWHERE.  THE FLORIDA
CITRUS COMMISSION IS AUTHORIZED TO PRESCRIBE THE METHOD OF MARKING THE
LABELS AND EMBOSSING THE CONTAINERS.  VIOLATION OF THE ACT IS
PUNISHABLE BY IMPRISONMENT OR FINE, OR BOTH, AND BY CONFISCATION OF ALL
GOODS MISBRANDED. 

THE ACT WAS APPROVED JUNE 10, 1937, AND PROVIDED THAT IT SHOULD TAKE
EFFECT IMMEDIATELY.  ON SEPTEMBER 4, 1937, THE COMMISSION RESOLVED THAT
"FOR THE PRESENT" IT FELT THAT "AN EDUCATIONAL AND ADJUSTMENT PERIOD"
WAS NECESSARY BEFORE THE LABELING PROVISIONS WERE ENFORCED.  ON OCTOBER
4, 1937, THE COMMISSION ADOPTED REGULATIONS PRESCRIBING THE METHOD OF
STAMPING OR EMBOSSING THE CANS. 

THE BILL OF COMPLAINT SET FORTH FACTS RELATING TO THE CHARACTER OF
THE TRADE, THE PROCESS OF CANNING AND THE TRADE PRACTICES AS TO
LABELING.  IT ALLEGED THAT PLAINTIFFS WERE WITHOUT KNOWLEDGE AS TO THE
AUTHORITY OF THE COMMISSION TO POSTPONE THE ENFORCEMENT OF THE LABELING
PROVISIONS OF THE ACT AND HAD NO ASSURANCE FROM ANY ENFORCEMENT OFFICER
THAT FAILURE TO COMPLY THEREWITH WOULD NOT RESULT IN CRIMINAL
PROSECUTION OR IN THE CONFISCATION OF PRODUCTS PACKED; THAT THE
"CLASSIFICATION, SORTING AND OVERPRINTING OF BOTH PACKER AND PRIVATE
BRAND LABELS NOW ON HAND" WOULD RESULT IN IMMEDIATE INCREASED COST TO
EACH OF THE PLAINTIFFS IN AN AMOUNT IN EXCESS OF $3,000; THAT AS TO THE
REQUIRED EMBOSSING, THE STATUTE MADE NO PROVISION FOR THE USE OF THE
TIN CONTAINERS NOT SO EMBOSSED WHICH THE PLAINTIFFS HAD ON HAND IN A
VALUE IN EXCESS OF $33,000; THAT THESE CONTAINERS WOULD NO LONGER BE
USABLE IN THE PACKING OF CANNED CITRUS PRODUCTS IF THE STATUTE WERE
ENFORCED; THAT THE EMBOSSING OF THE TIN PLATE OF THE CAN WOULD CAUSE
WHAT IS KNOWN AS "HYDROGEN FLIPPERS" DUE TO ACTION OF THE ACID IN THE
FRUIT UPON THE SHEET STEEL UNDERLYING THE TIN PLATE THROUGH THE
WEAKENING OR PENETRATION OF THE TIN COVERING; THAT THIS WOULD RESULT IN
"UNTOLD SPOILAGE, SWELLING OF CANS, UNMARKETABILITY AND LOSS OF
PRODUCTS, LOSS OF CONSUMERS' GOOD WILL, AND OTHER DAMAGE," IN AN AMOUNT
NOT PRESENTLY CALCULABLE; AND THAT THE REQUIREMENT OF EMBOSSING WOULD
CAUSE EACH OF THE PLAINTIFFS A LOSS IN EXCESS OF $3,000 BECAUSE OF THE
REFUSAL OF DISTRIBUTORS TO PURCHASE AND HANDLE CANS SO EMBOSSED.  THE
EFFECT OF THE ACT UPON PLAINTIFFS' TRADE WAS DESCRIBED IN SUPPORT OF
THE CLAIM THAT THE ENFORCEMENT OF ITS PROVISIONS WOULD INFLICT
IMMEDIATE AND IRREPARABLE INJURY. 

DEFENDANTS, INCLUDING THE FLORIDA CITRUS COMMISSION (WHICH
INTERVENED) AND OTHER OFFICIALS, FILED ANSWERS PUTTING IN ISSUE THE
ALLEGATIONS AS TO THE INJURIOUS OPERATION OF THE STATUTE.  THEY ALSO
MOVED TO DISMISS THE BILL OF COMPLAINT UPON THE GROUND THAT IT FAILED
TO STATE A CAUSE OF ACTION.  ON THE APPLICATION FOR INTERLOCUTORY
INJUNCTION, THE PARTIES SUBMITTED AFFIDAVITS SETTING FORTH FACTS IN
SUPPORT OF THEIR RESPECTIVE CONTENTIONS.  AT THE SAME TIME THE COURT
HEARD THE MOTIONS TO DISMISS.  INJUNCTION WAS DENIED, THE MOTIONS TO
DISMISS WERE GRANTED, AND A FINAL DECREE WAS ENTERED ACCORDINGLY.  22
F.SUPP.  575.  THIS IS A DIRECT APPEAL FROM THE DECREE OF DISMISSAL. 
28 U.S.C. 380. 

THE DISTRICT COURT MADE FINDINGS.  AFTER RECITING THE STATEMENTS IN
THE PREAMBLE OF THE STATUTE, THE COURT FOUND THAT NO SUFFICIENT FACTS
HAD BEEN SHOWN BY AFFIDAVITS OR OTHERWISE TO OVERCOME THE FINDINGS OF
FACT SO MADE BY THE LEGISLATURE; THAT THE STATUTE WAS ENACTED IN
PURSUANCE OF THE POLICE POWER OF THE STATE AND THAT ALL CITRUS FRUIT
CANNERS IN FLORIDA WERE AFFECTED BY ITS PROVISIONS, WITHOUT EXCEPTIONS;
THAT PLAINTIFFS HAD ON HAND UNEMBOSSED CONTAINERS OF A VALUE IN EXCESS
OF $33,000 WHICH WOULD NO LONGER BE USABLE IF THE ACT WERE ENFORCED,
BUT THAT "SUCH CONTAINERS COULD BE USED FOR PACKING OF VEGETABLES OR
COMMODITIES OTHER THAN CITRUS PRODUCTS" AND THAT THERE WAS NO SHOWING
"THAT THEY COULD NOT BE EXCHANGED WITH THE MANUFACTURER FOR PROPERLY
EMBOSSED CANS AT LITTLE OR NO EXTRA EXPENSE"; THAT IF THE PRACTICES AND
ABUSES AS FOUND BY THE LEGISLATURE WERE NOT STOPPED "THE PRICE WHICH
THE PRODUCER OF CITRUS FRUIT GROWN IN FLORIDA RECEIVES FOR HIS PRODUCT
WILL BE GREATLY REDUCED" AND HE WILL "ULTIMATELY BE FORCED OUT OF
BUSINESS"; THAT IT DID NOT SUFFICIENTLY APPEAR THAT THE EMBOSSING OF
CANS WOULD BE INJURIOUS OR HARMFUL TO THE CITRUS CONTENTS; THAT, "APART
FROM THE CONFLICTING AFFIDAVITS, NUMEROUS EMBOSSED CANS WERE PRODUCED
BEFORE THE COURT, SOME OF WHICH WERE USED FOR CANNING CITRUS PRODUCTS
AND THERE WAS NO SHOWING THAT THE CONTENTS OF SUCH CANS HAD BEEN
INJURIOUSLY AFFECTED BY THE EMBOSSING." 

AT THE SAME TIME THE COURT MADE AN ORDER RESTRAINING THE ENFORCEMENT
OF THE STATUTE PENDING THIS APPEAL, UPON THE PLAINTIFFS GIVING A BOND. 
THAT ORDER RECITED THAT THE COURT WAS OF THE OPINION "THAT THE
QUESTIONS INVOLVED ARE NOVEL AND OF GREAT IMPORTANCE" AND FURTHER THAT
THE PLAINTIFFS "WILL SUFFER IRREPARABLE LOSS AND DAMAGE DURING SAID
APPEAL" IF THE FLORIDA STATUTE IS ENFORCED AND THIS COURT SHOULD
REVERSE THE DECREE. 

WE ARE OF THE OPINION THAT THE DISTRICT COURT ERRED IN DISMISSING THE
BILL OF COMPLAINT.  PLAINTIFFS DID NOT SUBMIT THE CASE TO BE DECIDED
UPON THE MERITS UPON THE BILL, ANSWERS AND AFFIDAVITS.  DEFENDANTS'
MOTION TO DISMISS, LIKE THE DEMURRER FOR WHICH IT IS A SUBSTITUTE
(EQUITY RULE 29) WAS ADDRESSED TO THE SUFFICIENCY OF THE ALLEGATIONS OF
THE BILL.  FOR THE PURPOSE OF THAT MOTION, THE FACTS SET FORTH IN THE
BILL STOOD ADMITTED.  FOR THE PURPOSE OF THAT MOTION, THE COURT WAS
CONFINED TO THE BILL AND WAS NOT AT LIBERTY TO CONSIDER THE AFFIDAVITS
OR THE OTHER EVIDENCE PRODUCED UPON THE APPLICATION FOR AN
INTERLOCUTORY INJUNCTION.  BUT THE FINDINGS OF THE COURT INDICATE THAT
THAT EVIDENCE, IN PART AT LEAST, UNDERLAY THE FINAL DECREE IT ENTERED. 

WE THINK THAT THE FACTS ALLEGED IN THE BILL WERE SUFFICIENT TO
ENTITLE THE PLAINTIFFS TO AN OPPORTUNITY TO PROVE THEIR CASE, IF THEY
COULD, AND THAT THE COURT SHOULD NOT HAVE UNDERTAKEN TO DISPOSE OF THE
CONSTITUTIONAL ISSUES (AS TO WHICH WE INTIMATE NO OPINION) IN ADVANCE
OF THAT OPPORTUNITY.  THE ALLEGATIONS OF THE BILL AS TO TRADE
CONDITIONS AND PRACTICES, AND AS TO THE EFFECT OF THE REQUIRED
EMBOSSING OF CANS, RAISE PARTICULAR QUESTIONS WHICH CAN HARDLY BE SAID
TO LIE WITHIN THE RANGE OF JUDICIAL NOTICE.  THE SALUTARY PRINCIPLE
THAT THE ESSENTIAL FACTS SHOULD BE DETERMINED BEFORE PASSING UPON GRAVE
CONSTITUTIONAL QUESTIONS IS APPLICABLE.  SEE BORDEN'S FARM PRODUCTS CO.
V. BALDWIN, 293 U.S. 194, 211-213, AND CASES CITED.  AND THAT
DETERMINATION REQUIRES A HEARING IN DUE COURSE UPON THE ISSUES RAISED
BY THE PLEADINGS. 

THE DECREE IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

MR. JUSTICE BLACK, DISSENTING. 

A FLORIDA LAW DESIGNED TO PREVENT FRAUD, REQUIRES THAT CITRUS
PRODUCTS GROWN AND CANNED IN FLORIDA CARRY THE LABEL "MADE IN FLORIDA,"
AND THAT CONTAINERS OF THESE PRODUCTS BE EMBOSSED WITH THE SINGLE WORD,
"FLORIDA."  THE MAJORITY DO NOT DECIDE THAT THIS STATE LAW VIOLATES THE
FEDERAL CONSTITUTION.  NOR DO THEY DECIDE THAT PROOF OF THE ALLEGATIONS
OF PETITIONERS' BILL OF COMPLAINT WILL SHOW THAT THE FLORIDA LAW
VIOLATES THE CONSTITUTION.  WHILE PETITIONERS ARE HELD ENTITLED TO
PRODUCE EVIDENCE, THEY ARE NOT HELD ENTITLED TO RELIEF IF THEY PROVE
THEIR ENTIRE BILL.  IF ON REMAND PETITIONERS PROVE EVERY ALLEGATION IN
THEIR COMPLAINT, STILL - AFTER TIME AND STATE FUNDS HAVE BEEN SPENT IN
TAKING EVIDENCE - EITHER THE DISTRICT COURT OR THIS COURT MAY DECIDE
THAT THE COMPLAINT DID NOT ALLEGE FACTS SUFFICIENT TO INVALIDATE THE
LAW.  IN THE MEANTIME, THE STATE OF FLORIDA IS FORCED TO LITIGATE THE
VALIDITY OF ITS DULY ENACTED LAW, WITH NO DECISION ON ITS SUBSTANTIAL
DEFENSE THAT PETITIONERS' BILL IS WHOLLY DEFECTIVE BECAUSE OF
"INSUFFICIENCY OF FACT TO CONSTITUTE A VALID CAUSE OF ACTION"  FN1  OR
"FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED."  FN2 

THE IMPORTANT CONSEQUENCES OF THIS REMAND RAISE FAR MORE THAN MERE
QUESTIONS OF PROCEDURE.  STATE LAWS ARE CONTINUALLY SUBJECTED TO
CONSTITUTIONAL ATTACKS BY THOSE WHO DO NOT WISH TO OBEY THEM. 
ACCORDINGLY, IT BECOMES INCREASINGLY IMPORTANT TO PROTECT STATE
GOVERNMENTS FROM NEEDLESS EXPENSIVE BURDENS AND SUSPENSIONS OF THEIR
LAWS INCIDENT TO FEDERAL COURT INJUNCTIONS ISSUED ON ALLEGATIONS THAT
SHOW NO RIGHT TO RELIEF.  THE OPERATION OF THIS FLORIDA LAW HAS BEEN
SUSPENDED.  COMPLAINTS SEEKING TO INVALIDATE AND SUSPEND THE OPERATION
OF STATE LAWS BY INVOKING THE "VAGUE CONTOURS" OF DUE PROCESS  FN3  CAN
IRREPARABLY INJURE STATE GOVERNMENTS IF WE ACCEPT AS A "SALUTARY
PRINCIPLE" THE RULE THAT ALL SUCH COMPLAINTS - THOUGH FAILING TO STATE
A CAUSE OF ACTION - RAISE "GRAVE CONSTITUTIONAL QUESTIONS" WHICH
REQUIRE THAT "THE ESSENTIAL FACTS SHALL BE DETERMINED."  UNDER THIS
DECLARED "SALUTARY PRINCIPLE" SPECIALLY APPLYING TO BILLS ATTACKING THE
CONSTITUTIONALITY OF LEGISLATIVE ACTS, SUCH BILLS MUST BE DEFENDED
AGAINST EVEN THOUGH THEY FAIL TO STATE A CAUSE OF ACTION.  THIS IS
CONTRARY TO THE TRADITIONAL GENERAL RULE THAT FATALLY DEFECTIVE BILLS
ARE DISMISSED ON MOTION (FORMERLY DEMURRER) IN ORDER TO PREVENT
NEEDLESS LITIGATION, DELAY AND EXPENSE.  FN4  THE APPLICATION OF THIS
SPECIAL PRINCIPLE TO BILLS ATTACKING STATE LEGISLATION SERIOUSLY
UNDERMINES THE HISTORICAL PRESUMPTION OF THE VALIDITY OF STATE ACTS. 
FN5  A REFUSAL TO DETERMINE WHETHER OR NOT THE ALLEGATIONS OF THE BILL
ARE SUFFICIENT TO STRIKE DOWN AN ACT UNTIL EVIDENCE HAS BEEN HEARD ADDS
A SPECIAL BURDEN TO THE DEFENSE OF STATE LEGISLATION, AS THOUGH
LEGISLATION WERE TO BE PRESUMED INVALID.  I DO NOT BELIEVE THIS
PRINCIPLE LEADS TO SALUTARY RESULTS AND I AM OF THE OPINION THAT WE
SHOULD NOW DETERMINE WHETHER THE ALLEGATIONS OF THE BILL, IF PROVEN,
WOULD ENTITLE PETITIONERS TO RELIEF. 

THE BILL ALLEGES THAT THE FLORIDA STATUTE VIOLATES THE COMMERCE
CLAUSE OF THE CONSTITUTION  FN6 AND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  THE COURT BELOW HELD IN THE ALTERNATIVE THAT
PETITIONERS FAILED TO MAKE "SUFFICIENT SHOWING EITHER BY AFFIDAVIT OR
BY THE ALLEGATIONS OF THE BILL TO UPHOLD THE CONTENTION THAT THE ACT
DEPRIVES THE PLAINTIFFS OF THEIR PROPERTY WITHOUT DUE PROCESS OF LAW." 

EVEN ACCORDING TO THE PRESENTLY PREVAILING INTERPRETATION OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, I DO NOT BELIEVE THAT THE
AVERMENTS OF PETITIONERS' BILL CAN SUSTAIN INVALIDATION OF THIS DULY
ENACTED FLORIDA STATUTE.  THE STATUTE CONTAINS A LEGISLATIVE FINDING
THAT "CERTAIN PERSONS, FIRMS AND CORPORATIONS IN THE STATE OF FLORIDA"
HAD ENGAGED "IN THE PRACTICE" OF DECEIVING CUSTOMERS INTO THE BELIEF
THAT NON-FLORIDA CANNED CITRUS PRODUCTS HAD BEEN PRODUCED IN FLORIDA. 
THE LEGISLATURE FURTHER FOUND THAT THIS PRACTICE OPERATED TO "THE
INJURY AND DETRIMENT OF THE PRODUCERS AND CANNERS OF CITRUS FRUIT AND
CITRUS JUICES IN THE STATE OF FLORIDA; ...  " AND CONCLUDED THAT AN
EFFECTIVE METHOD TO PREVENT THIS FRAUDULENT PRACTICE WAS TO REQUIRE THE
PUBLICATION OF THE TRUTH UPON LABELS AND CONTAINERS.  AVERMENTS OF
PETITIONERS' BILL, IN THEIR STRONGEST LIGHT, GO NO FURTHER THAN TO DENY
THIS LEGISLATIVE FINDING.  THEY SAY TO REQUIRE PUBLICATION OF THE TRUTH
IN THIS MANNER ON THE CANS AND LABELS IS BURDENSOME  FN7  AND VIOLATES
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  THEY FURTHER
CHARGE HERE THAT THIS FINDING OF THE LEGISLATURE IS A "FEIGNED"
ASSUMPTION AND THAT "THE FACTS ALLEGED (IN PETITIONERS' BILL) NOT ONLY
SHOW THE NONEXISTENCE OF ANY BASIS FOR SUCH ASSUMPTION BUT DEMONSTRATE
THAT THE LAW WILL CAUSE SERIOUS INJURY TO THE PACKER AND MARKED
CURTAILMENT OF THE SALE OF CITRUS PRODUCTS GROWN AND CANNED IN
FLORIDA."  PETITIONERS' ARGUMENT FOR REVERSAL LARGELY INVOLVES "THIS
DISPUTED QUESTION AS TO THE EXISTENCE OF FACTS CONCERNING THE BASIS FOR
THE LAW, AND  ...  THE PREAMBLE STATEMENT OF THE ALLEGED EVIL WHICH
GAVE RISE TO ITS ENACTMENT.  ...  "    BECAUSE, IT IS SAID, THE
EMBOSSING AND LABELING REQUIREMENTS RAISE GRAVE CONSTITUTIONAL ISSUES,
THE STATE OF FLORIDA WILL BE REQUIRED TO DEFEND AGAINST TWO ISSUES
RAISED BY PETITIONERS' BILL.  THE STATE MUST ANSWER THE CHARGES:
FIRST, THAT - CONTRARY TO THE LEGISLATIVE FINDING - THERE WAS NO
FRAUDULENT PRACTICE UNDER WHICH THE DEALERS IN CANNED CITRUS PRODUCTS
WERE LED TO BELIEVE THAT THEY WERE BUYING FLORIDA PRODUCTS WHEN IN FACT
THE CANNED GOODS WERE PRODUCED OUTSIDE THAT STATE; SECOND, THAT
TRUTHFUL LABELING AND EMBOSSING AS REQUIRED BY THE STATUTE WOULD
FINANCIALLY INJURE CITRUS GROWERS, PRODUCERS, CANNERS AND THE PEOPLE OF
FLORIDA RATHER THAN BENEFIT THEM AS FOUND BY THE LEGISLATURE. 

IN ATTACKING THE LEGISLATIVE FINDING THAT THE ACT WOULD BESTOW
BENEFITS ON THE STATE OF FLORIDA, PETITIONERS ALLEGE THAT THE LAW WOULD
REQUIRE PETITIONERS TO SPEND EXTRA MONEY FOR LABELS; MIGHT CAUSE THEM
TO LOSE SOME BUSINESS; WOULD AFFORD THE OPPORTUNITY FOR SPOILING AND
SWELLING OF SOME CANS ON THE THEORY THAT EMBOSSING WITHOUT SPOILING IS
DIFFICULT AND COULD WEAKEN THE TIN OF CONTAINERS THEREBY PERMITTING
ACID TO CORRODE THE STEEL UNDERNEATH THE TIN; THAT PETITIONERS WILL
SUFFER LOSS BECAUSE THEY HAVE ON THEIR HANDS CANS THAT HAVE NOT BEEN
EMBOSSED; AND THAT FLORIDA ALREADY HAS LAWS ADEQUATE TO PROTECT ITSELF
FROM FRAUDULENT SALES. 

WITH REFERENCE TO A STATE LAW REGULATING CONTAINERS (FOR LARD) THIS
COURT HAS ALREADY SAID:  FN8 

"THIS MAY INVOLVE A CHANGE OF PACKING BY THE COMPANY AND THE COST OF
THAT CHANGE, BUT THIS IS A SACRIFICE THE LAW CAN REQUIRE TO PROTECT
FROM THE DECEPTION OF THE OLD METHOD." 

THE REAL ISSUE RAISED BY PETITIONERS' BILL IS NOT THE COST INCIDENT
TO CHANGING FROM THE OLD METHOD OF LABELING AND EMBOSSING, BUT WHETHER
THE FLORIDA LEGISLATURE - CONVINCED THAT FRAUD EXISTED - HAD THE
CONSTITUTIONAL RIGHT TO DETERMINE THE POLICY WHICH IT BELIEVED WOULD
PROTECT THE PEOPLE OF FLORIDA FROM THAT FRAUD.  THE CAUSE IS NOW SENT
BACK TO A FEDERAL DISTRICT COURT TO REVIEW THE FACTS UNDERLYING THE
POLICY ENACTED INTO LAW BY THE LEGISLATURE. 

UNDER OUR CONSTITUTIONAL PLAN OF GOVERNMENT, THE EXCLUSIVE POWER OF
DETERMINING THE WISDOM OF THIS POLICY RESTED WITH THE LEGISLATURE OF
FLORIDA SUBJECT TO THE VETO POWER OF FLORIDA'S GOVERNOR.  FN9  THIS
COURT HAS TAKEN JUDICIAL NOTICE OF THE FACT THAT CITRUS FRUITS SUPPORT
ONE OF THE GREAT INDUSTRIES OF THE STATE OF FLORIDA, AND HELD THAT IT
"WAS COMPETENT FOR THE LEGISLATURE (OF FLORIDA) TO FIND THAT IT WAS
ESSENTIAL FOR THE SUCCESS OF THAT INDUSTRY THAT ITS REPUTATION BE
PRESERVED IN OTHER STATES WHEREIN SUCH FRUITS FIND THEIR MOST EXTENSIVE
MARKET."  FN10  THE LEGISLATORS OF FLORIDA ARE PECULIARLY QUALIFIED TO
DETERMINE THE POLICIES RELATING TO ONE OF THEIR STATE'S GREATEST
INDUSTRIES.  LEGISLATURES, UNDER OUR SYSTEM, DETERMINE THE NECESSITY
FOR REGULATORY LAWS, CONSIDERING BOTH THE EVIL AND THE BENEFITS THAT
MAY RESULT.  UNLESS PROHIBITED BY CONSTITUTIONAL LIMITATIONS, THEIR
DECISIONS AS TO POLICY ARE FINAL.  IN WEIGHING CONFLICTING ARGUMENTS ON
THE WISDOM OF LEGISLATION THEY ARE NOT CONFINED WITHIN THE NARROW
BOUNDARIES OF A PARTICULAR CONTROVERSY BETWEEN LITIGANTS.  THEIR
INQUIRIES ARE NOT SUBJECT TO THE STRICT RULES OF EVIDENCE WHICH HAVE
BEEN FOUND ESSENTIAL IN PROCEEDINGS BEFORE COURTS.  LEGISLATORS MAY
PERSONALLY SURVEY THE FIELD AND OBTAIN DATA AND A BROAD PERSPECTIVE
WHICH THE NECESSARY LIMITATIONS OF COURT LITIGATION MAKE IMPOSSIBLE. 

THE LEGISLATIVE HISTORY OF THE FLORIDA STATUTE UNDER REVIEW INDICATES
THAT IT WAS GIVEN THE CAREFUL AND CAUTIOUS CONSIDERATION WHICH
REGULATION OF ONE OF THE STATE'S MAJOR INDUSTRIES DESERVED.  FN11
COMPANION MEASURES WERE OFFERED IN THE FLORIDA HOUSE AND SENATE ON THE
SAME DAY - APRIL 28, 1937.  IN THE HOUSE THE MEASURE WAS REFERRED TO
THE COMMITTEE ON CITRUS FRUITS.  THE EXISTENCE OF SUCH A STANDING
COMMITTEE IS ITSELF INDICATIVE OF A LEGISLATIVE PROCEDURE DESIGNED TO
GIVE CAREFUL CONSIDERATION TO LEGISLATION CONCERNING THIS IMPORTANT
INDUSTRY.  MAY 4, 1937, THE HOUSE COMMITTEE VOTED TO REPORT THE BILL
FAVORABLY, SIXTEEN AYES, NO NAYS, SIX MEMBERS ABSENT.  JUNE 1, THE BILL
WAS MADE THE SPECIAL ORDER OF BUSINESS AND ON JUNE 2, THE COMPANION
SENATE BILL PREVIOUSLY PASSED BY THAT BODY BY A VOTE OF TWENTY-FOUR TO
ONE WAS SUBSTITUTED FOR THE HOUSE MEASURE AND PASSED BY A VOTE OF
SEVENTY TO NOTHING.  FN12 

IN THE FACE OF THIS HISTORY, PETITIONERS INSIST THAT THIS STATUTE
DULY PASSED BY THE LEGISLATURE AND SIGNED BY THE GOVERNOR OF FLORIDA
VIOLATES THE DUE PROCESS CLAUSE AS AN UNREASONABLE, CAPRICIOUS, UNJUST,
HARSH AND ARBITRARY MEASURE.  THEREFORE, IF PETITIONERS ARE TO OBTAIN
RELIEF ON THIS THEORY IT MUST BE FOUND THAT THIS STATUTE WAS "FIXED OR
ARRIVED AT THROUGH AN EXERCISE OF WILL, OR BY CAPRICE, WITHOUT
CONSIDERATION OR ADJUSTMENT WITH REFERENCE TO PRINCIPLES, CIRCUMSTANCES
OR SIGNIFICANCE"; OR THAT IT WAS "DESPOTIC, AUTOCRATIC (OR) HIGH
HANDED"; OR THAT IT IS "IRRATIONAL, SENSELESS" OR PASSED BY THOSE "NOT
ENDOWED WITH REASONING ABILITY; NON-CONFORMABLE TO REASON"; OR THAT IT
IS CAPRICIOUS OR FREAKISH WHICH "DENOTES AN IMPULSIVE SEEMINGLY
CAUSELESS CHANGE OF MIND, LIKE THAT OF A CHILD OR A LUNATIC."  FN13 

THE CAUSE IS REMANDED FOR THE COURT BELOW TO DETERMINE WHETHER THE
LEGISLATIVE REQUIREMENT THAT CANS AND LABELS BE TRUTHFULLY MARKED IS
ARBITRARY, UNREASONABLE, CAPRICIOUS, UNJUST OR HARSH.  THIS MAKES IT
NECESSARY FOR THE COURT TO WEIGH AND PASS UPON THE RELATIVE JUDGMENT,
POISE AND REASONING ABILITY OF THE ONE LEGISLATOR WHO VOTED AGAINST THE
LAW, AS CONTRASTED WITH THE NINETY-FOUR LEGISLATORS AND THE GOVERNOR
WHO FAVORED IT.  I DO NOT BELIEVE THAT OBEDIENCE TO THIS CAREFULLY
CONSIDERED LEGISLATIVE ENACTMENT WOULD VIOLATE ANY OF PETITIONERS'
PROPERTY RIGHTS WITHOUT DUE PROCESS OF LAW OR THAT - EVEN UNDER
PREVAILING DOCTRINE - THE AVERMENTS OF THE COMPLAINT INDICATE THAT NO
KNOWN OR SUPPOSED FACTS COULD SUSTAIN IT.  FN14  THE ALLEGATIONS OF THE
COMPLAINT IN THIS CAUSE RAISE NO MORE THAN QUESTIONS OF POLICY FOR
LEGISLATIVE DETERMINATION, WHICH THE FLORIDA LEGISLATURE HAS ALREADY
CONSIDERED AND WHICH CAN BE PRESENTED TO OTHER LEGISLATURES IN THE
FUTURE. 

THIS CASE OFFERS AN APPROPRIATE OPPORTUNITY TO RETURN TO THE
WHOLESOME PRINCIPLE STATED BY THIS COURT IN 1888, IN POWELL V.
PENNSYLVANIA, 127 U.S. 678, 686, IN THE FOLLOWING LANGUAGE: 

"IF ALL THAT CAN BE SAID OF THIS LEGISLATION IS THAT IT IS UNWISE, OR
UNNECESSARILY OPPRESSIVE TO THOSE MANUFACTURING OR SELLING WHOLESOME
OLEOMARGARINE, AS AN ARTICLE OF FOOD, THEIR APPEAL MUST BE TO THE
LEGISLATURE, OR TO THE BALLOT-BOX, NOT TO THE JUDICIARY.  THE LATTER
CANNOT INTERFERE WITHOUT USURPING POWERS COMMITTED TO ANOTHER
DEPARTMENT OF GOVERNMENT." 

THE MAJORITY OPINION APPARENTLY DOES NOT DECIDE THAT FLORIDA HAS NO
POWER TO REQUIRE THAT THE ORIGIN OF CITRUS PRODUCTS CANNED IN FLORIDA
SHALL BE TRUTHFULLY SHOWN.  FN15  PETITIONERS' BILL INSISTS THAT
FLORIDA EXERCISED ITS POWER SO UNWISELY AS TO VIOLATE RIGHTS OF
PROPERTY WITHOUT DUE PROCESS, BECAUSE, AS ALLEGED, CANNING FRAUDS DID
NOT EXIST, AND COULD BE PREVENTED BY A WISER STATUTE, LESS EXPENSIVE
AND BURDENSOME TO PETITIONERS.  THUS THEY CHALLENGE THE WISDOM OF THE
FLORIDA LEGISLATION.  ON REMAND OF PETITIONERS' BILL WHICH FAILS TO
SHOW THAT THE FLORIDA LAW IS INVALID, MAY THE COURT, ON EVIDENCE
OUTSIDE THE BILL, HOLD THAT THE LAW VIOLATES DUE PROCESS BECAUSE THE
COURT IS CONVINCED THAT THE LEGISLATURE MIGHT HAVE CHOSEN A WISER, LESS
EXPENSIVE AND LESS BURDENSOME REGULATION?  IF A COURT IN THIS CASE AND
UNDER THIS BILL HAS THIS POWER, THE FINAL DETERMINATION OF THE WISDOM
AND CHOICE OF LEGISLATIVE POLICY HAS PASSED FROM LEGISLATURES - ELECTED
BY AND RESPONSIBLE TO THE PEOPLE - TO THE COURTS.  FN16  I BELIEVE, IN
THE LANGUAGE OF THE POWELL CASE, SUPRA, THAT SINCE ALL THAT HAS BEEN
"SAID OF THIS LEGISLATION IS THAT IT IS UNWISE, OR UNNECESSARILY
OPPRESSIVE TO THOSE" CANNING CITRUS PRODUCTS, THAT PETITIONERS'"APPEAL
MUST BE TO THE LEGISLATURE,  ...  NOT TO THE JUDICIARY."  I WOULD
AFFIRM. 

FN1  RULE 29, RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE
UNITED STATES, EFFECTIVE FEBRUARY 1, 1913. 

FN2  RULE 12(B), "FEDERAL RULES OF CIVIL PROCEDURE." 

FN3  CF. MR. JUSTICE HOLMES DISSENTING IN ADKINS V. CHILDREN'S
HOSPITAL, 261 U.S. 525, 568. 

FN4  STORY'S EQUITY PLEADINGS (10TH ED.)  SECS.  446, 447, 526.  THE
"  ...  PROPER RULE OF PLEADING WOULD SEEM TO BE, THAT, WHEN THE CASE
STATED BY THE BILL APPEARS TO BE ONE IN WHICH A COURT OF EQUITY WILL
REFUSE ITS AID, THE DEFENDANT SHOULD BE PERMITTED TO RESIST IT BY
DEMURRER.  ...  'IF THE CASE OF THE PLAINTIFF AS STATED IN THE BILL
WILL NOT ENTITLE HIM TO A DECREE, THE JUDGMENT OF THE COURT MAY BE
REQUIRED ON DEMURRER WHETHER THE DEFENDANT OUGHT TO BE COMPELLED TO
ANSWER THE BILL'  ...  "  THIS PRINCIPLE IS CALCULATED "TO SAVE THE
PARTIES FROM USELESS EXPENSE AND TROUBLE IN BRINGING IT (A SUIT) TO
ISSUE.  ...  "  MAXWELL V. KENNEDY, 8 HOW.  210, 222, 223; CF. SOUTHERN
PACIFIC CO. V. CAMPBELL, 189 F. 182, AFF'D 230 U.S. 537; MISSOURI
PACIFIC R. CO. V. NORWOOD, 42 F.2D 765, AFF'D 283 U.S. 249; PACIFIC
STATES CO. V. WHITE, 9 F.SUPP.  341, AFF'D 296 U.S. 176; ISBRANDTSEN
MOLLER CO. V. UNITED STATES, 14 F.SUPP.  407, AFF'D 300 U.S. 139. 

FN5  SEE OGDEN V. SAUNDERS, 12 WHEAT.  213, 270. 

"THE COMPLAINT CONTAINS MUCH BY WAY OF ARGUMENT, ASSERTIONS AS TO
QUESTIONS OF LAW TOGETHER WITH INFERENCES AND CONCLUSIONS OF THE
PLEADER AS TO MATTERS OF FACT.  THESE ARE NOT DEEMED TO BE ADMITTED BY
MOTION TO DISMISS.  ...  THE STATE LAWS (REGULATING TRAIN CREWS AND
ASSAILED AS VIOLATIVE OF THE FEDERAL CONSTITUTION) ARE PRESUMED VALID. 
...  THE BURDEN IS ON THE PLAINTIFF BY CANDID AND DIRECT ALLEGATIONS TO
SET FORTH IN ITS COMPLAINT FACTS SUFFICIENT PLAINLY TO SHOW THE
ASSERTED INVALIDITY."  MISSOURI PACIFIC R. CO. V. NORWOOD, 283 U.S.
249, 254, 255.  "EVERY EXERTION OF THE POLICE POWER, EITHER BY THE
LEGISLATURE OR BY AN ADMINISTRATIVE BODY, IS AN EXERCISE OF DELEGATED
POWER.  ...  "  WHERE "THE REGULATION IS WITHIN THE SCOPE OF AUTHORITY
LEGALLY DELEGATED, THE PRESUMPTION OF THE EXISTENCE OF FACTS JUSTIFYING
ITS SPECIFIC EXERCISE ATTACHES ALIKE TO STATUTES, TO MUNICIPAL
ORDINANCES, AND TO ORDERS OF ADMINISTRATIVE BODIES."  PACIFIC STATES
CO. V. WHITE, 296 U.S. 176, 185, 186. 

FN6  THE ASSERTED CONFLICT WITH THE COMMERCE CLAUSE DOES NOT REST UPON
PROOF OF FACT.  IT MUST BE DECIDED BY A COMPARISON OF THE FLORIDA LAW
AND THE FEDERAL PURE FOOD AND DRUG ACT AND REGULATIONS THEREUNDER. 
THAT QUESTION CAN - AND SHOULD - BE DECIDED NOW ON THE ALLEGATIONS OF
THE BILL.  THE COURT BELOW FOUND NO CONFLICT AND I AGREE WITH ITS
FINDINGS.  SEE, SAVAGE V. JONES, 225 U.S. 501, 533. 

FN7  "WE MAY NOT TEST IN THE BALANCES OF JUDICIAL REVIEW THE WEIGHT
AND SUFFICIENCY OF THE FACTS TO SUSTAIN THE CONCLUSION OF THE
LEGISLATIVE BODY, NOR MAY WE SET ASIDE THE ORDINANCE BECAUSE COMPLIANCE
WITH IT IS BURDENSOME."  STANDARD OIL CO. V. MARYSVILLE, 279 U.S. 582,
586. 

FN8  ARMOUR & CO. V. NORTH DAKOTA, 240 U.S. 510, 516. 

FN9  "THE POWER OF A STATE TO PRESCRIBE STANDARD CONTAINERS IN ORDER
TO FACILITATE TRADING, TO PRESERVE THE CONDITION OF THE MERCHANDISE, TO
PROTECT BUYERS FROM DECEPTION, OR TO PREVENT UNFAIR COMPETITION IS
CONCEDED.  SUCH REGULATION OF TRADE IS A PART OF THE INSPECTION LAWS;
WAS AMONG THE EARLIEST EXERTIONS OF THE POLICE POWER IN AMERICA; HAS
BEEN PERSISTENT; AND HAS BEEN WIDELY APPLIED TO MERCHANDISE COMMONLY
SOLD IN CONTAINERS. 

"DIFFERENT TYPES OF COMMODITIES REQUIRE DIFFERENT TYPES OF
CONTAINERS; AND AS TO EACH COMMODITY THERE MAY BE REASONABLE DIFFERENCE
OF OPINION AS TO THE TYPE BEST ADAPTED TO THE PROTECTION OF THE
PUBLIC.  WHETHER IT WAS NECESSARY IN OREGON (FLORIDA?)  TO PROVIDE A
STANDARD CONTAINER FOR RASPBERRIES AND STRAWBERRIES (CITRUS PRODUCTS?);
AND, IF SO, WHETHER THAT ADOPTED SHOULD HAVE BEEN MADE MANDATORY,
INVOLVE QUESTIONS OF FACT AND OF POLICY, THE DETERMINATION OF WHICH
RESTS IN THE LEGISLATIVE BRANCH OF THE STATE GOVERNMENT." 

PACIFIC STATES CO. V. WHITE, 296 U.S. 176, 181, 182. 

FN10  SLIGH V. KIRKWOOD, 237 U.S. 52, 61. 

FN11  AS TO AN "ADDED REASON FOR APPLYING THE PRESUMPTION OF
VALIDITY" WHERE A STATUTE HAS BEEN CAREFULLY ENACTED, COMPARE, PACIFIC
STATES CO. V. WHITE, SUPRA, P. 186. 

FN12  JOURNAL OF THE SENATE OF FLORIDA, REG. SESS. 1937, 508; JOURNAL
OF THE HOUSE OF FLORIDA, REG. SESS. 1937, 837. 

FN13  SEE, WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2ND ED., 1939. 

FN14  CF., STANDARD OIL CO. V. MARYSVILLE, 279 U.S. 582; HEBE CO. V.
SHAW, 248 U.S. 297, 304. 

FN15  "RECOGNIZED ELEMENTS OF INSPECTION LAWS HAVE ALWAYS BEEN
QUALITY OF THE ARTICLE, FORM, CAPACITY, DIMENSIONS, AND WEIGHT OF
PACKAGE, MODE OF PUTTING UP, AND MARKING AND BRANDING OF VARIOUS KINDS,
...  " 

IN "THE EXERCISE OF  ...  (LEGISLATIVE) DISCRETION, AND OF  ...  (A
STATE'S) POWER TO PRESCRIBE THE METHOD IN WHICH ITS PRODUCTS SHALL BE
FITTED FOR EXPORTATION, IT MAY DIRECT THAT A CERTAIN PRODUCT, WHILE IT
REMAINS 'IN THE BOSOM OF THE COUNTRY' AND BEFORE IT HAS BECOME AN
ARTICLE 'OF FOREIGN COMMERCE OR OF COMMERCE BETWEEN THE STATES,' SHALL
BE ENCASED IN SUCH A PACKAGE AS APPEARS BEST FITTED TO SECURE THE
SAFETY OF THE PACKAGE AND TO IDENTIFY ITS CONTENTS AS THE GROWTH OF THE
STATE, AND MAY DIRECT THAT THE WEIGHT OF THE PACKAGE, AND THE NAME OF
THE OWNER OF ITS CONTENTS, SHALL BE PLAINLY MARKED ON THE PACKAGE,  ...
"  TURNER V. MARYLAND, 107 U.S. 38, 55, 57.    FN16  WITH REFERENCE TO
A STATE LAW REGULATING LABELS AND CONTAINERS FOR CONDENSED MILK, THIS
COURT SAID, "IF THE CHARACTER OR EFFECT OF THE ARTICLE AS INTENDED TO
BE USED 'BE DEBATABLE, THE LEGISLATURE IS ENTITLED TO ITS OWN JUDGMENT,
AND THAT JUDGMENT IS NOT TO BE SUPERSEDED BY THE VERDICT OF A JURY,'
OR, WE MAY ADD, BY THE PERSONAL OPINION OF JUDGES, 'UPON THE ISSUE
WHICH THE LEGISLATURE HAS DECIDED.'"  HEBE CO. V. SHAW, 248 U.S. 297,
303. 
..END :





GUARANTY TRUST CO. V. VIRGINIA, 305 U.S. 19 


NO. 9.  ARGUED OCTOBER 11, 12, 1938.  - DECIDED NOVEMBER 7, 1938.  - 169
VA. 414 - 193 S.E. 534, AFFIRMED. 


1.  THE QUESTION WHETHER A STATE STATUTE PROVIDING FOR TAXATION OF
TRUST INCOME TO THE TRUSTEES WHEN DISTRIBUTION BY THEM IS
DISCRETIONARY, AND TO THE BENEFICIARY WHEN IT IS NOT, WOULD OPERATE TO
DENY EQUAL PROTECTION IF INCOME OF A DISCRETIONARY TRUST WERE TO BE
TAXED UNDER IT FIRST TO THE TRUSTEE AND AGAIN TO THE BENEFICIARY WHILE
INCOME FROM ORDINARY TRUSTS WAS TAXED ONLY ONCE, DOES NOT ARISE IN A
CASE WHERE THERE HAS BEEN BUT ONE TAX IMPOSED UNDER THE STATUTE,  - THE
TAX ON THE BENEFICIARY - AND WHEN THERE IS NO GROUND TO SUPPOSE THAT
THE STATUTE WILL BE SO CONSTRUED AND APPLIED BY THE STATE AUTHORITIES
AS TO RESULT IN DOUBLE TAXATION.  P. 23. 

2.  VIRGINIA AND NEW YORK BOTH HAVE LAWS TAXING TRUST INCOME TO THE
TRUSTEE WHEN DISTRIBUTION IS DISCRETIONARY, BUT TO THE BENEFICIARY WHEN
IT IS NOT.  HELD THAT TAXATION OF A CITIZEN AND RESIDENT OF VIRGINIA
UPON INCOME RECEIVED THERE FROM A TRUST ESTABLISHED AND ADMINISTERED IN
NEW YORK WAS NOT VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT, ALTHOUGH SUCH INCOME CAME FROM INCOME OF THE TRUST WHICH WAS
TAXED TO THE TRUSTEES BY NEW YORK.  P. 23. 

GUARANTY TRUST CO., EXECUTOR, V. VIRGINIA. 

CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. 

CERTIORARI, 303 U.S. 632, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DENYING RELIEF IN AN ACTION TO SET ASIDE INCOME TAX ASSESSMENTS AND TO
RECOVER THE TAXES, THERETOFORE PAID UNDER PROTEST. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

MRS. MARY T. RYAN, WHILE RESIDENT AND CITIZEN OF VIRGINIA IN 1930,
1931 AND 1932, WAS BENEFICIARY OF A TRUST SET UP UNDER THE WILL OF HER
HUSBAND, THOMAS F. RYAN, WHO DIED WHEN A CITIZEN OF NEW YORK IN 1928. 
THE WILL WAS PROBATED IN NEW YORK; THE TRUSTEES QUALIFIED THERE, TOOK
OVER THE ASSETS AND HAVE KEPT THEM THERE.  THE TRUST HAS BEEN
ADMINISTERED AND ACCOUNTS SETTLED UNDER THE LAWS OF THAT STATE. 

THE WILL DIVIDED THE ESTATE INTO FIFTY-FOUR PARTS AND DIRECTED
PAYMENT OF THE INCOME THEREFROM TO DESIGNATED BENEFICIARIES.  THESE ARE
THE PROVISIONS PRESENTLY IMPORTANT - 

"TWELVE (12) OF SAID EQUAL PARTS TO SAID TRUSTEES IN TRUST TO RECEIVE
THE INCOME THEREFROM, AND TO PAY OVER SUCH PART OF SAID INCOME TO MY
DEAR WIFE, MARY T. RYAN, AS THEY IN THEIR SOLE DISCRETION MAY DETERMINE
TO BE NECESSARY AND PROPER FOR HER CARE, SUPPORT AND COMFORT DURING HER
LIFE, IN SUCH INSTALLMENTS AND AT SUCH INTERVALS AS THEY IN THEIR SOLE
DISCRETION MAY DETERMINE." 

THE WILL FURTHER PROVIDED THAT THE TRUSTEES SHOULD "DIVIDE ANY
SURPLUS INCOME FROM SAID TWELVE PARTS NOT PAID TO MY WIFE AS AFORESAID,
INTO FORTY-TWO EQUAL PORTIONS, AND TO PAY SUCH SURPLUS INCOME IN EQUAL
QUARTERLY PAYMENTS AS NEAR AS MAY BE" TO CERTAIN DISTRIBUTEES AS
DESIGNATED IN SAID WILL, AND THAT UPON THE DEATH OF THE SAID WIFE THE
PRINCIPAL AMOUNT OF THE SAID TWELVE EQUAL PARTS SHOULD BE DIVIDED AND
DISTRIBUTED TO CERTAIN DESIGNATED DISTRIBUTEES, AS SET OUT IN SAID
WILL. 

THE NEW YORK AND VIRGINIA STATUTES LAYING TAXES UPON INCOMES FROM
TRUSTS ARE SUBSTANTIALLY ALIKE.  THEY REQUIRE TRUSTEES TO REPORT INCOME
RECEIVED AND WHERE THE TRUST IS DISCRETIONARY TO PAY THE AMOUNT
ASSESSED UPON THE ENTIRE INCOME; IF THE TRUST IS AN ORDINARY ONE EACH
BENEFICIARY IS ASSESSED UPON THE AMOUNT RECEIVED BY HIM. 

FOR 1930, 1931 AND 1932, NEW YORK IN ONE OR BOTH OF THESE WAYS
RECEIVED TAXES UPON THE ENTIRE INCOME OF THE TRUST SET UP UNDER THE
WILL.  EXERCISING THEIR DISCRETION, AFTER SATISFYING THE TAXES, THE
TRUSTEES PAID TO MRS. RYAN CONSIDERABLE SUMS OUT OF THE INCOME, FROM
TWELVE FIFTY-FOURTHS OF THE ESTATE - IN ALL APPROXIMATELY $300,000. 
FOR THE SAME YEARS, VIRGINIA ASSESSED ORDINARY STATE INCOME TAXES
AGAINST HER ON ACCOUNT OF THE SUMS SO RECEIVED.  THEY WERE PAID; AND
THIS PROCEEDING WAS BEGUN IN THE CIRCUIT COURT OF NELSON COUNTY TO
RECOVER THEM.  IT SUSTAINED THE TAX, AND THE HIGHEST COURT OF THE STATE
AFFIRMED THE JUDGMENT.  THE MATTER COMES HERE BY CERTIORARI GRANTED
UPON THE FOLLOWING STATEMENT - 

THIS PETITION PRESENTS THE ISSUE AS TO WHETHER THE STATE OF VIRGINIA
HAS THE RIGHT, UNDER THE PROVISIONS OF THE FOURTEENTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES, TO ASSESS AN INCOME TAX ON INCOME
RECEIVED BY THE SAID MARY T. RYAN FOR THE YEARS IN QUESTION, WHEN THE
IDENTICAL INCOME IN THE HANDS OF HER TRUSTEES HAD BEEN ASSESSED WITH
INCOME TAXES BY THE STATE OF NEW YORK, AND WHICH SAID TAXES HAD BEEN
PAID THERE, THUS IMPOSING TWO STATE TAXES ON THE SAME INCOME. 

COUNSEL FOR PETITIONER SUBMITS - 

THE SAME INCOME WAS SUBJECTED TO TAXATION BY TWO STATES.  NEW YORK
UNQUESTIONABLY HAD THE RIGHT TO EXACT THE TAX UPON THE INCOME OF THE
TRUST, AND THEREBY VIRGINIA WAS INHIBITED.  THE PROVISIONS OF THE
FOURTEENTH AMENDMENT PROTECT AGAINST SUCH TAXATION BY TWO STATES ON THE
SAME INCOME.  HERE, BOTH THE EQUAL PROTECTION AND THE DUE PROCESS
CLAUSES FORBID THE CHALLENGED EXACTMENT. 

THE CLAIM THAT EQUAL PROTECTION HAS BEEN DENIED SEEMS TO REST UPON AN
ASSUMED LITERAL CONSTRUCTION OF THE VIRGINIA STATUTE WHICH WOULD
REQUIRE INCOME FROM DISCRETIONARY TRUSTS TO BE TAXED AGAINST BOTH
TRUSTEE AND BENEFICIARY, WHILE ONLY ONE TAX (AGAINST THE BENEFICIARY)
WOULD FALL UPON INCOME FROM ORDINARY TRUSTS. 

WE MUST, OF COURSE, DEAL WITH RIGHTS HERE ACTUALLY INVOLVED.  THE
STATE HAS MADE ONE ASSESSMENT AGAINST A RESIDENT BENEFICIARY BECAUSE OF
INCOME RECEIVED WITHIN HER JURISDICTION AND HER COURTS HAVE APPROVED. 
THEY HAVE NOT INTERPRETED HER STATUTES ACCORDING TO THE PETITIONER'S
ASSUMPTION. 

THE RIGHT TO RECOGNIZE A DISTINCTION BETWEEN ORDINARY AND
DISCRETIONARY TRUSTS AND THUS INSURE COLLECTION OF TAXES UPON THE
ENTIRE INCOME ACTUALLY RECEIVED FROM THE LATTER SEEMS CLEAR ENOUGH. 

HAS THERE BEEN DENIAL OF DUE PROCESS - 

THE INSISTENCE IS THAT THE CHALLENGED ASSESSMENT WAS UPON THE
IDENTICAL INCOME ALREADY RIGHTLY TAXED BY NEW YORK; THAT, UNDER
NUMEROUS DECISIONS BY US, TWO OR MORE STATES MAY NOT TAX THE SAME
SUBJECT; THIS WOULD AMOUNT TO DOUBLE TAXATION AND INFRINGE THE DUE
PROCESS CLAUSE.  TO SUPPORT THIS PROPOSITION THE CASES NOTED IN THE
MARGIN N1 ARE CITED. 

THOSE CASES GO UPON THE THEORY THAT THE TAXING POWER OF A STATE IS
RESTRICTED TO HER CONFINES AND MAY NOT BE EXERCISED IN RESPECT OF
SUBJECTS BEYOND THEM.  HERE, THE THING TAXED WAS RECEIPT OF INCOME
WITHIN VIRGINIA BY A CITIZEN RESIDING THERE.  THE MERE FACT THAT
ANOTHER STATE LAWFULLY TAXED FUNDS FROM WHICH THE PAYMENTS WERE MADE
DID NOT NECESSARILY DESTROY VIRGINIA'S RIGHT TO TAX SOMETHING DONE
WITHIN HER BORDERS.  AFTER MUCH DISCUSSION THE APPLICABLE DOCTRINE WAS
EXPOUNDED AND APPLIED IN LAWRENCE V. STATE TAX COMM'N, 286 U.S. 276,
AND NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308.  THE ATTEMPT TO DRAW
A CONTROLLING DISTINCTION BETWEEN THEM AND THE PRESENT CAUSE, WE THINK,
HAS NOT BEEN SUCCESSFUL. 

THE CHALLENGED JUDGMENT MUST BE AFFIRMED. 

FN1  UNION REFRIGERATOR CO. V. KENTUCKY, 199 U.S. 194, FRICK V.
PENNSYLVANIA, 268 U.S. 473, SAFE DEPOSIT & TRUST CO. V. VIRGINIA, 280
U.S.
..END :























COLORADO BANK V. COMM'R, 305 U.S. 23 


NO. 30.  ARGUED OCTOBER 21, 1938.  - DECIDED NOVEMBER 7, 1938.  - 95
F.2D 160, REVERSED. 


1.  WHETHER A TRANSFER WAS IN CONTEMPLATION OF DEATH HELD A QUESTION
OF FACT AS TO WHICH THE DECISION OF THE BOARD OF TAX APPEALS, SUPPORTED
BY SUBSTANTIAL EVIDENCE, WAS CONCLUSIVE.  P. 29. 

THERE WAS EVIDENCE THAT THE PURPOSE OF THE TRANSFER WAS TO ENABLE THE
DONOR TO SPECULATE UPON THE STOCK MARKET FOR THE REMAINDER OF HIS LIFE
MORE ACTIVELY THAN HE HAD IN THE PAST WITHOUT FEAR THAT THE PART OF HIS
FORTUNE TRANSFERRED MIGHT BE LOST. 

2.  AS TO THE MEANING OF THE TERM "IN CONTEMPLATION OF DEATH," THE
COURT ADHERES TO WHAT WAS SAID IN UNITED STATES V. WELLS, 283 U.S.
102.  P. 30. 

THE MERE PURPOSE TO MAKE PROVISION FOR CHILDREN AFTER A DONOR'S DEATH
IS NOT ENOUGH CONCLUSIVELY TO ESTABLISH THAT ACTION TO THAT END WAS "IN
CONTEMPLATION OF DEATH."  BROADLY SPEAKING, THOUGHTFUL MEN HABITUALLY
ACT WITH REGARD TO ULTIMATE DEATH, BUT SOMETHING MORE THAN THIS IS
REQUIRED IN ORDER TO SHOW THAT A CONVEYANCE COMES WITHIN THE AMBIT OF
THE STATUTE, REV. ACT OF 1926, SEC. 302(C). 

COLORADO NATIONAL BANK ET AL., EXECUTORS, V. COMMISSIONER OF INTERNAL
REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 304 U.S. 556, TO REVIEW A JUDGMENT UPHOLDING AN ESTATE
TAX ASSESSMENT, AND THEREIN REVERSING A CONTRARY DECISION OF THE BOARD
OF TAX APPEALS. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

EDWIN B. HENDRIE OF DENVER, COLORADO, JANUARY 26, 1925, EXECUTED A
WILL WHEREIN HE GAVE HIS PROPERTY, WITH RELATIVELY SMALL EXCEPTIONS, TO
TRUSTEES TO BE HELD FOR THE BENEFIT OF HIS DAUGHTER, GERTRUDE HENDRIE
GRANT, AND HER CHILDREN.  JANUARY 7, 1927, WHEN EIGHTY YEARS OLD AND IN
GOOD HEALTH, HE IRREVOCABLY CONVEYED IN TRUST TO THE COLORADO NATIONAL
BANK, SECURITIES OF LARGE VALUE - PERHAPS $800,000.  THE DEED AMONG
OTHER THINGS PROVIDED THAT THE INCOME SHOULD BE ACCUMULATED DURING THE
DONOR'S LIFE; AFTER HIS DEATH AND DURING THE LIFE OF HIS DAUGHTER
GERTRUDE SO MUCH THEREOF AS SHE ASKED SHOULD BE PAID TO HER AND THE
REMAINDER ADDED TO THE PRINCIPAL; UPON HER DEATH THE CORPUS SHOULD BE
DISTRIBUTED TO HER DESCENDANTS, ETC. 

HENDRIE DIED JULY 15, 1932.  HIS 1925 WILL WAS DULY PROBATED AND
UNDER IT PROPERTY WORTH SOME $900,000 PASSED.  THE COMMISSIONER RULED
THAT THE 1927 TRUST WAS SET UP IN CONTEMPLATION OF DEATH WITHIN THE
MEANING OF SEC. 302(C), REVENUE ACT OF 1926, AS AMENDED,  FN1  TREATED
THE PROPERTY IN THE TRUSTEE'S HANDS AS PART OF THE GROSS ESTATE, AND
ASSESSED TAXES THEREON ACCORDINGLY. 

THE BOARD OF TAX APPEALS CONSIDERED THE RELEVANT FACTS AND HELD THE
CONVEYANCE OF 1927 "WAS NOT MADE IN CONTEMPLATION OF DEATH WITHIN THE
MEANING OF THE STATUTE AS EXPLAINED IN UNITED STATES V. WELLS, 283 U.S.
102." 

THE CIRCUIT COURT OF APPEALS RULED THAT THE TRANSFER WAS IN
CONTEMPLATION OF DEATH, AND REVERSED THE BOARD'S DECISION.  WE THINK
THIS WAS ERROR.  THE DECISION OF THE BOARD SHOULD HAVE BEEN APPROVED. 

THE COURT DECLARED - "EACH CASE MUST BE DETERMINED BY ITS OWN FACTS
AND CIRCUMSTANCES.  ...  IT IS SETTLED LAW THAT A FINDING OF FACT MADE
BY THE BOARD OF TAX APPEALS WILL NOT BE DISTURBED ON REVIEW IF IT IS
SUPPORTED BY SUBSTANTIAL EVIDENCE.  BUT WHETHER THERE IS SUBSTANTIAL
EVIDENCE TO SUPPORT A FINDING IS A QUESTION OF LAW.  ...  AND A FINDING
NOT THUS SUPPORTED WILL BE SET ASIDE."  THESE STATEMENTS ARE IN ACCORD
WITH OUR HOLDINGS. 

ALSO IT SAID - "THE TEST LIES IN THE MOTIVE FOR THE TRANSFER.  IF THE
GENERATING SOURCE OF THE MOTIVE IS ASSOCIATED WITH LIFE, THE TRANSFER
IS NOT MADE IN CONTEMPLATION OF DEATH.  BUT IF THE GENERATING
INDUCEMENT IS ASSOCIATED WITH DEATH, EITHER IMMEDIATE OR DISTANT, THE
TRANSFER IS MADE IN SUCH CONTEMPLATION.  A GIFT IS MADE IN
CONTEMPLATION OF DEATH WHERE THE DOMINANT MOTIVE OF THE DONOR IS TO
MAKE PROPER PROVISION FOR THE OBJECT OF HIS BOUNTY AFTER THE DEATH OF
THE DONOR." 

FOLLOWING A REVIEW OF THE EVIDENCE IT SAID - "THE DOMINANT PURPOSE
WAS TO MAKE PROVISION FOR HIS DESCENDANTS AFTER HIS DEATH, IN THE EVENT
HIS SPECULATIONS PROVED TRAGIC.  IT WAS TO PLACE THAT SUBSTANTIAL
AMOUNT OF PROPERTY IN AN ASYLUM OF IMMUNITY FROM ADVERSE CONSEQUENCES
OF SPECULATION, IN ORDER TO MAKE CERTAIN THAT IT WOULD BE USED FOR HIS
DAUGHTER AND HER CHILDREN AFTER HIS DEATH.  ...  THE PURPOSE WAS A
COMMENDABLE ONE, BUT THE GENERATING MOTIVE FOR A TRANSFER MADE IN SUCH
CIRCUMSTANCES IS ASSOCIATED WITH DEATH." 

IN THE LIGHT OF THE VIEWS SO STATED THE COURT CONCLUDED THERE WAS NO
SUBSTANTIAL EVIDENCE TO ESTABLISH THAT THE TRANSFER WAS NOT MADE IN
CONTEMPLATION OF DEATH.  ONE JUDGE, DISSENTING, DECLARED - "IT SEEMS
CLEAR FROM THE UNCONTRADICTED TESTIMONY THAT MR. HENDRIE'S GIFT TO HIS
DAUGHTER AND HER CHILDREN WAS NOT MADE IN CONTEMPLATION OF DEATH BUT IN
ORDER THAT HE MIGHT SPECULATE UPON THE STOCK MARKET FOR THE REMAINDER
OF HIS LIFE MORE ACTIVELY THAN HE HAD IN THE PAST WITHOUT FEAR THAT THE
PART OF HIS FORTUNE THUS GIVEN MIGHT BE LOST.  HE MANIFESTED NO OTHER
INTENT AND PURPOSE IN THAT RESPECT." 

THERE WAS EVIDENCE WHICH THE BOARD THOUGHT ADEQUATE, AND WHICH WE
DEEM SUBSTANTIAL, TO SUPPORT ITS CONCLUSION.  DOMINANT PURPOSE WAS A
QUESTION OF FACT FOR DETERMINATION BY THE BOARD. 

THE COURT'S OPINION SEEMS TO REST UPON AN ERRONEOUS INTERPRETATION OF
THE TERM "IN CONTEMPLATION OF DEATH."  THE MEANING OF THIS WAS MUCH
DISCUSSED IN UNITED STATES V. WELLS, SUPRA.  WE ADHERE TO WHAT WAS
THERE SAID.  THE MERE PURPOSE TO MAKE PROVISION FOR CHILDREN AFTER A
DONOR'S DEATH IS NOT ENOUGH CONCLUSIVELY TO ESTABLISH THAT ACTION TO
THAT END WAS "IN CONTEMPLATION OF DEATH."  BROADLY SPEAKING, THOUGHTFUL
MEN HABITUALLY ACT WITH REGARD TO ULTIMATE DEATH, BUT SOMETHING MORE
THAN THIS IS REQUIRED IN ORDER TO SHOW THAT A CONVEYANCE COMES WITHIN
THE AMBIT OF THE STATUTE. 

HERE, THE BOARD HAVING BEFORE IT ALL THE CIRCUMSTANCES, INCLUDING THE
PROVISIONS OF THE WILL, CONCLUDED THAT THEY DISCLOSED AN EFFECTIVE
MOTIVE NOT DIRECTLY SPRINGING FROM APPREHENSION OF DEATH.  AND AS
POINTED OUT BY THE DISSENTING JUDGE THERE WAS SUBSTANTIAL BASIS FOR
THAT VIEW.  ITS ACTION IS IN ACCORD WITH PRINCIPLES ACCEPTED BY US IN
SHUKERT V. ALLEN, 273 U.S. 545, REINECKE V. NORTHERN TRUST CO., 278
U.S. 339, MAY V. HEINER, 281 U.S. 238, MCCORMICK V. BURNET, 283 U.S.
784, BECKER V. ST. LOUIS UNION TRUST CO., 296 U.S. 48. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED.  THE
DECISION OF THE BOARD OF TAX APPEALS IS APPROVED.  REVERSED. 

FN1  REVENUE ACT OF 1926, C. 27, 44 STAT. 9: 

"SEC. 302.  THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE
DETERMINED BY INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL
PROPERTY, REAL OR PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED
 

"(A)  TO THE EXTENT OF THE INTEREST THEREIN OF THE DECEDENT AT THE
TIME OF HIS DEATH; 

     .         .         .         .         . 

"(C)  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS
AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, IN CONTEMPLATION OF
OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH,  ..."  (U.S.C., TITLE 26, SEC. 411.) 

MR. JUSTICE REED CONCURS ON THE GROUND THAT THE CONCLUSION OF THE
BOARD THAT THE TRANSFER WAS NOT MADE IN CONTEMPLATION OF DEATH WAS
JUSTIFIED.  THERE WAS SUBSTANTIAL EVIDENCE OF A LIFE MOTIVE AND THE
BOARD DID NOT FIND AN EFFECTIVE MOTIVE IN CONTEMPLATION OF DEATH. 

MR. JUSTICE BLACK, DISSENTING. 

THE PURPOSE OF CONGRESS IN PROVIDING THAT PROPERTY TRANSFERRED TO A
TRUST SHOULD BE INCLUDED IN THE TRANSFEROR'S GROSS ESTATE WHEN
TRANSFERRED IN CONTEMPLATION OF DEATH  FN1  WAS TO PREVENT EVASION OF
THE PROGRESSIVELY GRADUATED ESTATE TAX THROUGH THE USE OF TRUST DEVICES
WHICH ACTUALLY OPERATED AS SUBSTITUTES FOR TESTAMENTARY DISPOSITION OF
PROPERTY.  FN2  THE WILL MADE BY MR. HENDRIE AT THE AGE OF SEVENTY
EIGHT IN 1925 AND THE TRUST AGREEMENT SUBSTITUTED FOR IT AT EIGHTY (AS
TO A LARGE PART OF HIS PROPERTY) TWO YEARS LATER IN 1927 WERE
SUBSTANTIALLY IDENTICAL AS TO PARTIES, RECIPIENTS OF HIS PROPERTY,
AMOUNTS, TERMS AND CONDITIONS.  NEITHER THE WILL NOR THE TRUST
AGREEMENT PERMITTED ANY PAYMENTS TO THE BENEFICIARIES UNTIL THE DEATH
OF MR. HENDRIE. 

THE STIPULATED EVIDENCE AS TO EXPRESSIONS BY THE DONOR OF HIS MOTIVE
FOR MAKING THE TRUST AGREEMENT SHOWED THAT: 

HE "WANTED TO TRANSFER ABOUT ONE THIRD OF HIS ASSETS IN THE INTEREST
OF HIS DAUGHTER AND HER HEIRS SO THAT WHATEVER MIGHT HAPPEN TO HIS OWN
FINANCIAL AFFAIRS IN THE FUTURE, THOSE PERSONS WOULD BE PROVIDED FOR. 
HE SAID HE DESIRED TO RETAIN FOR HIMSELF HIS MORE SPECULATIVE
SECURITIES AND TO FEEL FREE TO SPECULATE WITH THAT PROPERTY DURING THE
REST OF HIS LIFE, BUT TO PUT THE OTHER ONE-THIRD BEYOND HIS OWN REACH
AND RISK.  HE SAID HE DESIRED AND INTENDED TO 'PLAY ON THE MARKET' TO A
GREATER EXTENT AND IN A MORE SPECULATIVE WAY FOR THE REMAINDER OF HIS
LIFE." 

AT "ONE TIME HE STATED  ...  THAT HIS DAUGHTER AND HIS GRANDCHILDREN
WOULD BE ADEQUATELY PROVIDED FOR IN THE EVENT OF HIS, THE SAID
HENDRIE'S DEATH, THROUGH THE MEDIUM OF A TRUST WHICH HE HAD CREATED,
REGARDLESS OF HIS OPERATIONS ON THE STOCK EXCHANGE." 

IN REACHING THE CONCLUSION THAT THE STIPULATED FACTS IN THIS CASE
SHOWED AS A MATTER OF LAW THAT THE TRUST GIFT WAS MADE IN CONTEMPLATION
OF THE DONOR'S DEATH WITHIN THE MEANING OF THE CONGRESSIONAL ACT, THE
COURT BELOW SAID IN PART: 

"THE TRUST WAS NOT DESIGNED TO MAKE PROVISION FOR THE BENEFICIARIES
DURING HIS LIFE.  NONE OF THE PROPERTY OR THE INCREMENT THERETO WAS TO
REACH THEM UNTIL AFTER HIS DEATH.  NEITHER WAS IT DESIGNED TO ENABLE
HIM TO ENGAGE IN SPECULATION.  HE COULD HAVE DONE THAT UNFETTERED AND
UNRESTRAINED WITHOUT THE ESTABLISHMENT OF THE TRUST.  BUT IN ITS
ABSENCE THE PROPERTY TRANSFERRED WOULD HAVE BEEN SUBJECT TO THE HAZARDS
OF SPECULATION.  IT WOULD HAVE BEEN WITHIN REACH OF CREDITORS IF HE
LOST ALL.  THE DOMINANT PURPOSE WAS TO MAKE PROVISION FOR HIS
DESCENDANTS AFTER HIS DEATH, IN THE EVENT HIS SPECULATIONS PROVED
TRAGIC.  IT WAS TO PLACE THAT SUBSTANTIAL AMOUNT OF PROPERTY IN AN
ASYLUM OF IMMUNITY FROM ADVERSE CONSEQUENCES OF SPECULATION, IN ORDER
TO MAKE CERTAIN THAT IT WOULD BE USED FOR HIS DAUGHTER AND HER CHILDREN
AFTER HIS DEATH.  IT WAS TO MAKE ASSURANCE DOUBLY SURE THAT PROVISION
WAS MADE FOR THEM, NOT DURING HIS LIFE, BUT AFTER HIS DEATH."  FN3 

THE BOARD OF TAX APPEALS DID NOT PASS UPON CONFLICTING EVIDENCE.  AND
THERE IS NO INDICATION THAT THE BOARD BELIEVED THAT ANY CONFLICTING
INFERENCES COULD BE DRAWN FROM THE STIPULATED FACTS.  STATING THAT "THE
COMMISSIONER RELIES UPON THE FACT THAT THE INCOME WAS TO BE ACCUMULATED
AND ADDED TO CORPUS DURING THE LIFE OF THE DONOR AND, CONSEQUENTLY, THE
BENEFICIARIES WERE TO RECEIVE NOTHING UNTIL AFTER THE DEATH OF THE
DECEDENT," THE BOARD DID NO MORE THAN SAY THAT THEY THOUGHT "THE
TRANSFER WAS NOT MADE IN CONTEMPLATION OF DEATH WITHIN THE MEANING OF
THE STATUTE AS EXPLAINED IN UNITED STATES V. WELLS, 283 U.S. 102," AND
THAT "THEREFORE, ON THIS POINT, WE HOLD FOR THE PETITIONERS."  THAT THE
BOARD REACHED ITS CONCLUSION ON THIS SINGLE PRINCIPLE IS CLEARLY
INDICATED BY ITS STATEMENT THAT "PRINCIPLES ANNOUNCED IN THE CASES
ABOVE LISTED CONTROL THIS CASE WHICH IS NOT DISTINGUISHABLE FROM ONE OR
MORE OF THOSE CASES WHERE, AS HERE, INCOME WAS TO BE ACCUMULATED UNTIL
AFTER THE DEATH OF THE DONOR." 

THE DECISION IN UNITED STATES V. WELLS, SUPRA, IS NOT CONTROLLING ON
THE PRESENT FACTS.  THERE THE COURT POINTED OUT THAT, IN EFFECT, THE
FINDINGS OF THE LOWER COURT SHOWED THAT THE GIFT INVOLVED "'WAS THE
CARRYING OUT OF A POLICY LONG FOLLOWED BY DECEDENT IN DEALING WITH HIS
CHILDREN OF MAKING LIBERAL GIFTS TO THEM DURING HIS LIFETIME.  HE HAD
CONSISTENTLY FOLLOWED THAT POLICY FOR NEARLY THIRTY YEARS AND THE THREE
TRANSFERS IN QUESTION WERE A CONTINUATION AND FINAL CONSUMMATION OF
SUCH POLICY.  IN THE LAST TRANSFER SUCH AMOUNTS WERE GIVEN TO HIS
CHILDREN AS WOULD EVEN THEM UP ONE WITH ANOTHER, IN THE GIFTS AND
ADVANCEMENTS MADE TO THEM. 

"'THAT THIS WAS THE MOTIVE WHICH ACTUATED THE DECEDENT IN MAKING
THESE TRANSFERS SEEMS UNQUESTIONED.'" 

HERE, THE DONOR HAD NEVER FOLLOWED ANY SUCH POLICY.  HIS WILL
INDICATED THAT HE WAS MOTIVATED NOT BY A DESIRE TO GIVE HIS CHILDREN
AND GRANDCHILDREN PROPERTY WHILE HE WAS YET LIVING, BUT TO PROVIDE FOR
THEM AFTER HIS DEATH.  IN THE WELLS CASE, SUPRA, 117, THIS COURT SAID
THAT "THE MOTIVE WHICH INDUCES THE TRANSFER MUST BE OF THE SORT WHICH
LEADS TO TESTAMENTARY DISPOSITION."  THAT THE MOTIVE OF THE DONOR IN
THIS CASE WAS OF THE KIND "WHICH LEADS TO TESTAMENTARY DISPOSITION" IS
CONCLUSIVELY SHOWN BY THE FACTS THAT THE TRUST AGREEMENT WAS AN ACTUAL
SUBSTITUTE FOR A PREVIOUS WILL; THAT THE SOLE MOTIVE SHOWN IN ALL OF
THE EVIDENCE WAS TO PROVIDE FOR THE DONOR'S CHILDREN AND GRANDCHILDREN
AFTER HIS DEATH SO HE WOULD BE "FREE FOR THE REST OF HIS LIFE TO
SPECULATE IN WHATEVER SECURITIES HE MIGHT WISH" WITHOUT SUBJECTING THE
PROPERTY INTENDED FOR HIS CHILDREN AND GRANDCHILDREN TO "THE
VICISSITUDES OF HIS SPECULATIONS."  FN4 

CONGRESS HAS PROVIDED THAT UPON REVIEW OF A JUDGMENT OF THE BOARD OF
TAX APPEALS THE "COURTS SHALL HAVE POWER TO AFFIRM OR, IF THE DECISION
OF THE BOARD IS NOT IN ACCORDANCE WITH LAW, TO MODIFY OR TO REVERSE THE
DECISION OF THE BOARD, WITH OR WITHOUT REMANDING THE CASE FOR A
REHEARING, AS JUSTICE MAY REQUIRE."  FN5  ALTHOUGH THIS STATUTE
INDICATES AN INTENT ON THE PART OF CONGRESS TO MAKE THE FINDINGS OF
FACT OF THE BOARD CONCLUSIVE, THIS COURT HOLDS THAT SUCH FINDINGS ARE
NOT CONCLUSIVE UNLESS SUPPORTED BY SUBSTANTIAL EVIDENCE.  FN6  THIS
COURT HAS ALSO SAID THAT THE ULTIMATE FINDING BY THE BOARD OF TAX
APPEALS IS A "CONCLUSION OF LAW OR AT LEAST A DETERMINATION OF A MIXED
QUESTION OF LAW AND FACT" WHICH IS "SUBJECT TO JUDICIAL REVIEW AND, ON
SUCH REVIEW, THE COURT MAY SUBSTITUTE ITS JUDGMENT FOR THAT OF THE
BOARD."  FN7  UNDER THIS RULE - WITH WHICH I AM NOT IN ACCORD - BUT
WHICH GOVERNED THE COURT OF APPEALS, I BELIEVE THAT COURT CORRECTLY
DECIDED THAT THE BOARD HAD NO SUBSTANTIAL EVIDENCE TO JUSTIFY ITS
ERRONEOUS ULTIMATE DETERMINATION OF THE MIXED QUESTION OF LAW AND FACT
HERE.  FOR THAT REASON I THINK THE JUDGMENT SHOULD BE AFFIRMED.    FN1
SEC. 302(C), REVENUE ACT, 1926, 44 STAT. 9. 

FN2  MILLIKEN V. UNITED STATES, 283 U.S. 15; UNITED STATES V. WELLS,
283 U.S. 102, 116-17; CF. TYLER V. UNITED STATES, 281 U.S. 497, 505. 

FN3  95 F.2D 163. 

FN4  THE STATUTE ALTERNATIVELY TAXES TWO TYPES OF TRUST TRANSFERS
INTER VIVOS WHICH MAY BE SUBSTITUTED FOR WILLS.  IF A TRUST WAS
INTENDED TO TAKE EFFECT AT DEATH OR IF A TRUST WAS CREATED IN
CONTEMPLATION OF DEATH, EITHER CONTINGENCY INVOKES THE IMPOSITION OF
THE TAX.  HOLDINGS WHERE THE TAX HAS BEEN ASSESSED ON THE THEORY THAT A
TRUST SHIFTED SUCH ECONOMIC INTERESTS AT A TRANSFEROR'S DEATH - AND NOT
WHEN THE TRUST WAS SET UP - THAT THE TRANSFER WAS INTENDED TO TAKE
EFFECT AT DEATH (SHUKERT V. ALLEN, 273 U.S. 545; REINECKE V. NORTHERN
TRUST CO., 278 U.S. 339; MAY V. HEINER, 281 U.S. 238; MCCORMICK V.
BURNET, 283 U.S. 784; BECKER V. ST. LOUIS UNION TRUST CO., 296 U.S. 48)
ARE NOT DETERMINATIVE OF THIS CASE INVOLVING AN ALLEGED MOTIVE IN
CONTEMPLATION OF DEATH. 

FN5  44 STAT. 110, 26 U.S.C., C. 5, SEC. 641(C). 

FN6  HELVERING V. TEX-PENN CO., 300 U.S. 481, 490; HELVERING V.
RANKIN, 295 U.S. 123, 131; PHILLIPS V. COMMISSIONER, 283 U.S. 589,
600. 

FN7  HELVERING V. TEX-PENN CO., SUPRA, AT 491; HELVERING V. RANKIN,
SUPRA.
..END :
























DAVIS V. DAVIS, 305 U.S. 32 


NO. 16.  ARGUED OCTOBER 14, 1938.  - DECIDED NOVEMBER 7, 1938.  - 96
F.2D 512, REVERSED. 


1.  UNDER ART. IV, SEC. 1, OF THE CONSTITUTION AND R.S. SEC. 905, A
DECREE OF A COURT OF VIRGINIA IS ENTITLED TO THE SAME FAITH AND CREDIT
IN THE COURTS OF THE DISTRICT OF COLUMBIA AS IT HAS BY LAW OR USAGE IN
THE COURTS OF VIRGINIA.  P. 39. 

2. WHETHER THE MATRIMONIAL DOMICIL IS THE DOMICIL OF THE HUSBAND
DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF THE CASE.  P. 41. 

3.  A HUSBAND OBTAINED, ON THE GROUND OF CRUELTY, A DECREE OF
SEPARATION FROM HIS WIFE IN THE DISTRICT OF COLUMBIA, WHERE BOTH
RESIDED.  THE DECREE GAVE HER CUSTODY OF ONE CHILD AND MONTHLY
ALIMONY.  SOME YEARS LATER, THE HUSBAND ESTABLISHED HIS RESIDENCE IN
VIRGINIA AND SUED IN A VIRGINIA COURT FOR ABSOLUTE DIVORCE ON THE
GROUND OF DESERTION.  NOTICE WAS SERVED PERSONALLY ON THE WIFE IN THE
DISTRICT OF COLUMBIA, WHERE SHE CONTINUED TO RESIDE, AND SHE FILED IN
THE VIRGINIA COURT A PLEA STATING THAT SHE APPEARED THERE "SPECIALLY
AND FOR NO OTHER PURPOSE THAN TO FILE THIS PLEA TO THE JURISDICTION OF
THE COURT."  THE PLEA ALLEGED THAT NEITHER SHE NOR THE HUSBAND HAD BEEN
A RESIDENT OF VIRGINIA FOR A YEAR BEFORE COMMENCEMENT OF THE SUIT AND
ASSERTED THAT HE WAS NOT THEN A BONA FIDE RESIDENT THERE, BUT THAT THE
RESIDENCE HE WAS ATTEMPTING TO ESTABLISH WAS FOR THE SOLE PURPOSE OF
CREATING JURISDICTION IN THE COURT TO HEAR AND DETERMINE THE SUIT FOR
DIVORCE AND WAS THEREFORE A FRAUD UPON THE COURT AND NOT RESIDENCE IN
CONTEMPLATION OF LAW.  IT PRAYED JUDGMENT WHETHER THE COURT "CAN OR
WILL TAKE ANY FURTHER COGNIZANCE OF THE ACTION AFORESAID."  THERE WAS A
DECREE OF REFERENCE TO A COMMISSIONER TO ASCERTAIN AND REPORT WHETHER
THE COURT HAD JURISDICTION AND WHETHER A DIVORCE SHOULD BE GRANTED, THE
DECREE RECITING, INTER ALIA, THAT COUNSEL HAD BEEN HEARD IN ARGUMENT. 
THE COMMISSIONER REPORTED THAT BY STIPULATION OF COUNSEL, HE HAD
LIMITED HIS INQUIRY TO THE JURISDICTION; THAT HE HAD TAKEN ALL THE
TESTIMONY SUBMITTED BY THE PARTIES, AND THAT IN HIS OPINION THE HUSBAND
WAS A BONA FIDE RESIDENT OF VIRGINIA AND THAT THE COURT HAD
JURISDICTION TO HEAR AND DETERMINE THE CAUSE.  THERE WAS A HEARING UPON
THE WIFE'S EXCEPTIONS TO THE REPORT, AFTER WHICH THE COURT FOUND THAT
THE HUSBAND HAD BEEN A RESIDENT OF THE VIRGINIA COUNTY FOR THE
REQUISITE TIME AND THAT IT HAD JURISDICTION OF THE SUBJECT-MATTER AND
OF THE PARTIES; AND CONFIRMED THE REPORT.  THE COURT GRANTED THE WIFE
FURTHER TIME IN WHICH TO APPEAL OR TO ANSWER, BUT SHE DID NEITHER.  THE
CAUSE PROCEEDED AND THERE WAS A FINAL DECREE OF ABSOLUTE DIVORCE UPON
THE GROUND OF WILFUL DESERTION, WITH AN ALLOWANCE FOR SUPPORT OF THE
CHILD BUT NO ALIMONY FOR THE WIFE, THE DECREE RECITING THAT THERE HAD
BEEN A HEARING UPON SPECIFIED PAPERS AND DEPOSITIONS TAKEN BEFORE A
COMMISSIONER PURSUANT TO NOTICE SERVED IN THE COUNTY, ON COUNSEL WHO
HAD ENTERED SPECIAL APPEARANCE FOR RESPONDENT, AND UPON HER PERSONALLY
IN THE DISTRICT OF COLUMBIA.  HELD: 

(A)  CONSTRUING THE WIFE'S APPEARANCE AS SPECIAL, SHE WAS NEVERTHELESS
BOUND BY THE FINDING OF THE VIRGINIA COURT ON RESIDENCE AND
JURISDICTION, AND THE DECREE WAS ENFORCEABLE IN THE COURTS OF THE
DISTRICT OF COLUMBIA.  HADDOCK V. HADDOCK, 201 U.S. 562,
DISTINGUISHED.  P. 40. 

(B)  THE WIFE'S PARTICIPATION IN THE VIRGINIA LITIGATION WAS SUCH AS
TO AMOUNT TO A GENERAL APPEARANCE.  P. 42. 

NO QUESTION IS PRESENTED IN THIS CASE AS TO THE POWER OF THE DISTRICT
OF COLUMBIA COURT OVER ALIMONY. 

DAVIS V. DAVIS. 

CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. 

ON CERTIORARI, 304 U.S. 552, TO REVIEW A DECREE REFUSING RECOGNITION
TO A VIRGINIA DECREE OF ABSOLUTE DIVORCE SECURED BY A HUSBAND WHO
CHANGED HIS RESIDENCE TO THAT STATE FROM THE DISTRICT OF COLUMBIA. 

REFUSAL TO RECOGNIZE THE DECREE OF THE VIRGINIA COURT VIOLATES
ARTICLE IV, SEC. 1, OF THE CONSTITUTION, AND R.S. SEC. 905.  CHEELEY V.
CLAYTON, 110 U.S. 701, 705; THOMPSON V. THOMPSON, 226 U.S. 551; 35 APP.
D.C. 14; ATHERTON V. ATHERTON, 181 U.S. 155; BLOEDORN V. BLOEDORN, 64
APP. D.C. 199, 201. 

THE APPEARANCE AND PARTICIPATION OF THE WIFE IN THE HEARING IN THE
VIRGINIA COURT GAVE THAT COURT FULL JURISDICTION.  BALDWIN V. IOWA
STATE TRAVELING MEN'S ASSN., 283 U.S. 522; AMERICAN SURETY CO. V.
BALDWIN, 287 U.S. 166. 

THE RULING BELOW THAT THE PETITIONER, SUBSEQUENTLY TO THE JUDICIAL
SEPARATION GRANTED HIM, COULD NOT ACQUIRE A NEW DOMICILE WHICH WOULD
SUPPORT AN ACTION FOR DIVORCE, IS IN CONFLICT WITH BARBER V. BARBER, 21
HOW.  582, 594; CHEEVER V. WILSON, 9 WALL.  108, 124; HADDOCK V.
HADDOCK, 201 U.S. 562; WILLIAMSON V. OSENTON, 232 U.S. 619.  SEE HUNT
V. HUNT, 72 N.Y. 217, 243.  IT IS ALSO IN CONFLICT WITH ROLLINS V.
ROLLINS, 60 APP. D.C. 305, 307, AND MARCUM V. MARCUM, 61 APP. D.C. 332,
334. 

WHERE ONE SPOUSE HAS JUSTIFIABLY LEFT THE OTHER, OR THE PARTIES ARE
LIVING APART BY VIRTUE OF A JUDICIAL SEPARATION, THERE IS NO
MATRIMONIAL DOMICILE, AND THE INNOCENT PARTY MAY ACQUIRE ANOTHER, WITH
JURISDICTION IN THE COURTS OF THE LATTER TO DECREE A DIVORCE OF BINDING
VALIDITY EVERYWHERE. 

THE DECISION OF THE COURT BELOW WAS BY THREE JUDGES ONLY, AND NOT BY
THE FULL COURT OF FIVE REQUIRED BY THE STATUTE, ALTHOUGH HEARING BY THE
FULL COURT WAS REQUESTED. 

WHEN A HUSBAND GOES TO A STATE SOLELY FOR DIVORCE PURPOSES, HE DOES
NOT CARRY THE MARITAL RES WITH HIM, AND THE COURTS OF THE STATE TO
WHICH HE HAS GONE HAVE NO JURISDICTION TO ENTERTAIN HIS DIVORCE SUIT. 

RECITALS OF THE DECREES ENTERED IN DIVORCE CASES IN ONE STATE ARE NOT
BINDING ON THE COURT OF ANOTHER STATE; THEY MAY BE CONTRADICTED. 

THE BONA FIDES OF THE RESIDENCE OF A PARTY WHO OBTAINS A DIVORCE IN
ONE STATE MAY BE INQUIRED INTO BY THE COURTS OF ANOTHER STATE.  BELL V.
BELL, 181 U.S. 175; STREITWOLF V. STREITWOLF, 181 U.S. 179; ANDREWS V.
ANDREWS, 188 U.S. 14; HADDOCK V. HADDOCK, 201 U.S. 502; SIMMONS V.
SIMMONS, 57 APP. D.C. 216; CHEELEY V. CLAYTON, 110 U.S. 701; FREY V.
FREY, 61 APP. D.C. 232. 

THERE WAS NOTHING IN THE ACT OF FEBRUARY 9, 1893, 27 STAT. 434,
ESTABLISHING THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, TO
REQUIRE A FULL COURT TO CONSTITUTE A QUORUM.  THE ACT OF JUNE 19, 1930,
INCREASED THE NUMBER OF JUSTICES TO FIVE, AND PROVIDED THAT THEY "SHALL
HAVE THE SAME TENURE OF OFFICE, PAY AND EMOLUMENTS, POWERS AND DUTIES,
AS PROVIDED BY LAW, FOR THE JUSTICES OF SAID COURT."  THERE WAS NOTHING
IN THE ACT REQUIRING MORE THAN THREE JUDGES TO DECIDE A CASE, JUST AS
THERE WAS NOTHING IN THE ACT OF 1893 REQUIRING MORE THAN TWO JUDGES TO
DECIDE A CASE. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THE LOWER COURT HELD A DECREE OF THE CIRCUIT COURT OF ARLINGTON
COUNTY, VIRGINIA, ENTERED JUNE 26, 1929, GRANTING PETITIONER AN
ABSOLUTE DIVORCE FROM RESPONDENT UPON THE GROUND OF DESERTION, NOT
ENTITLED TO RECOGNITION IN THE SUPREME (NOW DISTRICT) COURT OF THE
DISTRICT OF COLUMBIA.  THE QUESTION AROSE UPON HIS APPLICATION TO THAT
COURT TO SET ASIDE OR MODIFY A DECREE IT ENTERED OCTOBER 29, 1925,
GRANTING HIM DIVORCE A MENSA ET THORO FROM RESPONDENT ON THE GROUND OF
CRUELTY. 

IN THE DISTRICT OF COLUMBIA, ABSOLUTE DIVORCE WAS NOT THEN PERMITTED
FOR DESERTION OR CRUELTY.  FN1  IN VIRGINIA, ABSOLUTE DIVORCE WAS
AUTHORIZED WHERE EITHER PARTY WILLFULLY DESERTED OR ABANDONED THE OTHER
FOR THREE YEARS.  FN2  THE CIRCUIT COURTS THERE HAVE JURISDICTION OVER
SUITS FOR DIVORCE AND ALIMONY.  NO SUIT FOR DIVORCE IS MAINTAINABLE
UNLESS ONE OF THE PARTIES HAS BEEN DOMICILED IN THE STATE FOR AT LEAST
A YEAR PRECEDING ITS COMMENCEMENT.  FN3 

PETITIONER AND RESPONDENT MARRIED IN 1909 AND, UNTIL ABOUT THE TIME
HE BROUGHT THE SUIT FOR LIMITED DIVORCE, LIVED TOGETHER IN THE DISTRICT
OF COLUMBIA.  THEY HAD A SON AND DAUGHTER.  THE DECREE OF SEPARATION
AWARDED TO HIM CUSTODY OF THE SON; TO HER, CUSTODY OF THE DAUGHTER; AND
DIRECTED HIM TO PAY $300 A MONTH FOR SUPPORT OF WIFE AND DAUGHTER. 

PETITIONER'S COMPLAINT IN THE VIRGINIA COURT ALLEGED THAT HE WAS A
RESIDENT OF THAT STATE FOR THE REQUISITE TIME, SHOWED THAT RESPONDENT
WAS A RESIDENT OF THE DISTRICT OF COLUMBIA, FULLY DISCLOSED THE
PROCEEDINGS AND DECREE IN THE DISTRICT COURT, AND ALLEGED CONTINUOUS
DESERTION COMMENCING BEFORE AND EXTENDING FOR MORE THAN THREE YEARS
AFTER ENTRY OF THAT DECREE.  PROCESS OF THE VIRGINIA COURT WAS SERVED
PERSONALLY UPON THE RESPONDENT IN THE DISTRICT OF COLUMBIA.  SHE FILED
A PLEA STATING THAT SHE APPEARED "SPECIALLY AND FOR NO OTHER PURPOSE
THAN TO FILE THIS PLEA TO THE JURISDICTION OF THE COURT."  IN THAT
DOCUMENT SHE ALLEGED THAT NEITHER SHE NOR PETITIONER HAD BEEN A
RESIDENT OF VIRGINIA FOR A YEAR BEFORE COMMENCEMENT OF THE SUIT; AND
ASSERTED THAT HE WAS NOT THEN A BONA FIDE RESIDENT THERE, BUT THAT THE
RESIDENCE HE WAS ATTEMPTING TO ESTABLISH WAS FOR THE SOLE PURPOSE OF
CREATING JURISDICTION IN THE COURT TO HEAR AND DETERMINE THE SUIT FOR
DIVORCE, AND WAS THEREFORE A FRAUD UPON THE COURT AND NOT RESIDENCE IN
CONTEMPLATION OF LAW.  THE PLEA PRAYED JUDGMENT WHETHER THE COURT "CAN
OR WILL TAKE ANY FURTHER COGNIZANCE OF THE ACTION AFORESAID." 

THE COURT ENTERED A DECREE RECITING THAT THE CAUSE CAME ON FOR HEARING
UPON THE COMPLAINT, EXHIBITS, OTHER PAPERS, AND "ARGUMENT OF COUNSEL,"
AND REFERRING THE CAUSE TO A COMMISSIONER IN CHANCERY TO ASCERTAIN AND
REPORT WHETHER THE COURT HAD JURISDICTION TO HEAR AND DETERMINE IT AND
WHETHER A DECREE OF DIVORCE SHOULD BE ENTERED.  THE COMMISSIONER
REPORTED THAT "BY STIPULATION OF COUNSEL IT WAS AGREED," THAT HE SHOULD
ONLY ASCERTAIN THE FACTS RAISED IN THE PLEA TO THE JURISDICTION AND
THAT NO OTHER MATTER SHOULD BE INQUIRED INTO OR REPORTED; THAT HE HAD
TAKEN ALL THE TESTIMONY SUBMITTED BY THE PARTIES; THAT IN HIS OPINION
PETITIONER WAS A BONA FIDE RESIDENT OF ARLINGTON COUNTY, VIRGINIA, AND
THAT THE COURT HAD JURISDICTION TO HEAR AND DETERMINE THE CAUSE. 

RESPONDENT FILED EXCEPTIONS, REITERATING THE ALLEGATIONS OF HER PLEA
AND ASSERTING THAT THE COMMISSIONER'S FINDINGS WERE CONTRARY TO THE
EVIDENCE.  THERE WAS A HEARING UPON THE REPORT AND EXCEPTIONS.  AFTER
ARGUMENT OF COUNSEL FOR THE PARTIES AND UPON CONSIDERATION OF THE
EVIDENCE, THE COURT FOUND THAT PETITIONER WAS A RESIDENT OF ARLINGTON
COUNTY, VIRGINIA, FOR THE REQUISITE TIME; THAT IT HAD JURISDICTION OF
THE "SUBJECT MATTER AND OF THE PARTIES"; OVERRULED THE EXCEPTIONS, AND
CONFIRMED THE REPORT.  RESPONDENT HAVING SIGNIFIED HER DESIRE TO APPLY
FOR AN APPEAL, THE COURT ORDERED OPERATION OF THE DECREE SUSPENDED FOR
A PERIOD OF THIRTY DAYS.  IT ALSO GRANTED RESPONDENT TEN DAYS "WITHIN
WHICH TO FILE SUCH ANSWER OR OTHER PLEADINGS IN THIS CAUSE AS SHE MAY
WISH."  SHE DID NOT APPEAL OR FILE ANSWER OR OTHER PLEADING. 

THE FINAL DECREE STATES THAT THE CASE CAME ON FOR HEARING UPON
SPECIFIED PAPERS AND DEPOSITIONS OF FIVE NAMED PERSONS, TAKEN BEFORE A
COMMISSIONER PURSUANT TO NOTICE SERVED IN ARLINGTON COUNTY, ON COUNSEL
WHO HAD ENTERED SPECIAL APPEARANCE FOR RESPONDENT, AND UPON HER
PERSONALLY IN THE DISTRICT OF COLUMBIA.  IT FOUND:  RESPONDENT
WILLFULLY DESERTED PETITIONER FEBRUARY 24, 1925; THE DESERTION
CONTINUED FROM THAT DATE; THREE YEARS HAD ELAPSED SINCE THE ENTRY OF
THE DECREE A MENSA ET THORO; THERE HAS BEEN NO RECONCILIATION, AND NONE
IS PROBABLE.  IT GRANTED PETITIONER ABSOLUTE DIVORCE, DIVESTED
RESPONDENT OF ALL RIGHTS IN HIS PROPERTY, AND REQUIRED HIM TO PAY $150
PER MONTH FOR SUPPORT OF THE DAUGHTER.  NO ALIMONY WAS ALLOWED
RESPONDENT. 

DECEMBER 30, 1929, PETITIONER APPLIED TO THE DISTRICT COURT TO HAVE
ITS DECREE SET ASIDE OR MODIFIED SO AS NOT TO REQUIRE HIM TO PAY ANY
AMOUNT FOR MAINTENANCE OF RESPONDENT BUT TO PROVIDE FOR THE PAYMENT OF
A REASONABLE SUM FOR THE SUPPORT OF THEIR DAUGHTER.  THE APPLICATION
WAS BASED SOLELY UPON THE VIRGINIA DECREE.  RESPONDENT APPEARED AND
OPPOSED THE APPLICATION BUT RAISED NO QUESTION AS TO THE JURISDICTION
OF THE VIRGINIA COURT.  IT WAS DENIED.  THE COURT OF APPEALS AFFIRMED
ON THE GROUNDS THAT THE LOWER COURT, HAVING ENTERED THE DECREE,
RETAINED JURISDICTION TO ENFORCE OR MODIFY ITS ORDER FOR MAINTENANCE OF
THE WIFE AND DAUGHTER; THAT PETITIONER'S REMOVAL TO VIRGINIA DID NOT
INVEST THE COURTS OF THAT STATE WITH AUTHORITY TO ANNUL OR SUPERSEDE
THAT JURISDICTION; AND THAT, THE DISTRICT COURT HAVING FIRST ACQUIRED
JURISDICTION OF THE SUBJECT MATTER, ITS AUTHORITY CONTINUES UNTIL THE
MATTER IS FINALLY DISPOSED OF.  61 APP. D.C. 48; 57 F.2D 414.  IN
PASSING UPON THAT APPLICATION, NEITHER COURT CONSIDERED OR DECIDED ANY
QUESTION AS TO JURISDICTION OF THE VIRGINIA COURT. 

APRIL 16, 1935, PETITIONER FILED IN THE DISTRICT COURT ANOTHER
APPLICATION TO HAVE ITS DECREE SET ASIDE OR MODIFIED AS BEFORE PRAYED. 
HE THEN SOUGHT RELIEF ON THREE GROUNDS:  THE DECREE OF THE VIRGINIA
COURT, THE FACT THAT HIS DAUGHTER HAD MARRIED AND WAS NO LONGER LIVING
WITH RESPONDENT, AND DIMINUTION OF HIS INCOME.  RESPONDENT ANSWERED,
ALLEGING THAT PETITIONER NEVER WAS A RESIDENT OF VIRGINIA AND DENYING
THE DESERTION FOUND BY THE VIRGINIA COURT.  THERE WAS A HEARING, AT
WHICH PETITIONER OFFERED EVIDENCE SHOWING THE PROCEEDINGS AND DECREE IN
THE VIRGINIA COURT, THE MARRIAGE OF THE DAUGHTER, AND THAT SHE WAS
LIVING WITH HER HUSBAND.  THEN COUNSEL FOR RESPONDENT APPLIED FOR TIME
TO SECURE HER ATTENDANCE AND THAT OF WITNESSES WHO, AS HE SAID, WOULD
GIVE TESTIMONY THAT PETITIONER WENT TO VIRGINIA FOR THE SOLE PURPOSE OF
GETTING A DIVORCE, AND THAT HE NEVER BECAME A BONA FIDE RESIDENT
THERE.  PETITIONER'S COUNSEL ADMITTED THAT, IF PRESENT, RESPONDENT AND
THE WITNESSES REFERRED TO WOULD SO TESTIFY, BUT INSISTED THAT THE
TESTIMONY WOULD BE INCOMPETENT.  RESPONDENT OFFERED NO OTHER EVIDENCE. 
THE TRIAL COURT DENIED THE APPLICATION. 

THE COURT OF APPEALS, IN AN UNREPORTED OPINION, HELD ITS EARLIER
DECISION ESTABLISHED THE LAW OF THE CASE.  DECLARING PETITIONER NOT
RESPONSIBLE FOR MAINTENANCE OF HIS DAUGHTER AFTER HER MARRIAGE, IT HELD
THAT FACT SHOULD BE TAKEN INTO ACCOUNT, AND REMANDED THE CASE FOR
FURTHER CONSIDERATION AS TO THE AMOUNT OF ALIMONY TO BE ALLOWED
RESPONDENT.  PETITIONER APPLIED FOR AND THE COURT GRANTED REHEARING. 
IT HEARD ARGUMENT AND FILED AN OPINION, IN WHICH IT ADHERED TO ITS
RULING THAT ITS EARLIER DECISION WAS THE LAW OF THE CASE, AND HELD THAT
THE DECISION OF THE LOWER COURT REFUSING TO ENFORCE PETITIONER'S DECREE
OF ABSOLUTE DIVORCE SHOULD STAND.  IT SAID:  "THE VIRGINIA COURT DID
NOT HAVE FULL JURISDICTION OF THE PARTIES AND THE SUBJECT MATTER, AND,
HENCE, THE DECREE WAS NOT ENTITLED TO FULL FAITH AND CREDIT.  ...  IT
WAS NECESSARY  ...  UNDER  ... HADDOCK V. HADDOCK (201 U.S. 562)  ...
THAT VIRGINIA BE THE LAST MATRIMONIAL DOMICIL OF THE PARTIES, OR, IF
NOT, THAT THE WIFE BE SUBJECTED TO THE JURISDICTION OF THE COURT
(BELOW) EITHER BY PERSONAL SERVICE WITHIN THE STATE, OR BY VOLUNTARY
APPEARANCE AND PARTICIPATION IN THE SUIT."  IT HELD THAT THE
MATRIMONIAL DOMICIL WAS NOT IN VIRGINIA; THAT RESPONDENT'S SPECIAL
APPEARANCE DID NOT GIVE THE VIRGINIA COURT FULL JURISDICTION, OR
CONSTITUTE WAIVER OF HER OBJECTION TO JURISDICTION.  IT HELD
PETITIONER'S APPLICATION ONE ADDRESSED TO THE DISCRETION OF THE LOWER
COURT AND THAT ITS OMISSION TO CONSIDER THE MARRIAGE OF THE DAUGHTER
CONSTITUTED FAILURE TO EXERCISE DISCRETION.  ACCORDINGLY, IT REVERSED
AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THE OPINION. 
96 F.2D 512. 

ART. IV, SEC. 1, REQUIRES THAT JUDICIAL PROCEEDINGS IN EACH STATE
SHALL BE GIVEN FULL FAITH AND CREDIT IN THE COURTS OF EVERY OTHER
STATE.  FN4  THE ACT OF MAY 26, 1790, 1 STAT. 122, AS AMENDED, R.S.
SEC. 905, 28 U.S.C. SEC. 687, DECLARES THAT JUDICIAL PROCEEDINGS
AUTHENTICATED AS THERE PROVIDED SHALL HAVE SUCH FAITH AND CREDIT GIVEN
TO THEM IN EVERY "COURT WITHIN THE UNITED STATES AS THEY HAVE BY LAW OR
USAGE IN THE COURTS OF THE STATE FROM WHICH THEY ARE TAKEN."  FN5  THUS
CONGRESS RIGHTLY INTERPRETED THE CLAUSE TO MEAN, NOT SOME, BUT FULL
CREDIT.  HADDOCK V. HADDOCK, SUPRA, 567.  THE ACT EXTENDED THE RULE OF
THE CONSTITUTION TO ALL COURTS, FEDERAL AS WELL AS STATE.  MILLS V.
DURYEE, 7 CR. 481, 485. 

AS TO PETITIONER'S DOMICIL FOR DIVORCE AND HIS STANDING TO INVOKE
JURISDICTION OF THE VIRGINIA COURT, ITS FINDING THAT HE WAS A BONA FIDE
RESIDENT OF THAT STATE FOR THE REQUIRED TIME IS BINDING UPON RESPONDENT
IN THE COURTS OF THE DISTRICT.  SHE MAY NOT SAY THAT HE WAS NOT
ENTITLED TO SUE FOR DIVORCE IN THE STATE COURT, FOR SHE APPEARED THERE
AND BY PLEA PUT IN ISSUE HIS ALLEGATION AS TO DOMICIL, INTRODUCED
EVIDENCE TO SHOW IT FALSE, TOOK EXCEPTIONS TO THE COMMISSIONER'S
REPORT, AND SOUGHT TO HAVE THE COURT SUSTAIN THEM AND UPHOLD HER PLEA. 
PLAINLY, THE DETERMINATION OF THE DECREE UPON THAT POINT IS EFFECTIVE
FOR ALL PURPOSES IN THIS LITIGATION.  BALDWIN V. TRAVELING MEN'S ASSN.,
283 U.S. 522, 525-526.    NOR CAN IT BE SAID THAT THE DOMICIL WAS NOT
ADEQUATE TO SUPPORT, IN VIRTUE OF THE RULE OF FULL FAITH AND CREDIT
ESTABLISHED BY CONGRESS, A DECREE ENFORCEABLE IN THE COURTS OF THE
DISTRICT OF COLUMBIA.  DEPENDING ON THE CONNECTION IN WHICH USED,
VARIOUS MEANINGS HAVE BEEN ATTRIBUTED TO THE PHRASE MATRIMONIAL
DOMICIL.  SEE ATHERTON V. ATHERTON, 181 U.S. 155, 171; ANDREWS V.
ANDREWS, 188 U.S. 14, 40; HADDOCK V. HADDOCK, SUPRA, 572; THOMPSON V.
THOMPSON, 226 U.S. 551, 562.  DEFINITION, INCLUSIVE AND EXCLUSIVE, IS
NOT TO BE FOUND; IT NEED NOT BE ATTEMPTED HERE.  IT IS ENOUGH TO SAY
THAT CARE SHOULD ALWAYS BE TAKEN TO DETERMINE UPON THE FACTS AND
CIRCUMSTANCES OF EACH CASE WHETHER, IN ACCORDANCE WITH THE GENERAL
RULE, IT IS THE DOMICIL OF THE HUSBAND.  SEE CHEELY V. CLAYTON, 110
U.S. 701, 705; THOMPSON V. THOMPSON, SUPRA.  CF. BARBER V. BARBER, 21
HOW.  582, 592, 594; CHEEVER V. WILSON, 9 WALL.  108, 124.  IN THIS
CASE, THE WIFE HAS BEEN ADJUDGED BY THE DECREE A MENSA ET THORO, ON
WHICH SHE RELIES, TO HAVE DISRUPTED THE MARITAL RELATION.  AND BY THE
DECREE OF THE VIRGINIA COURT, THE ENFORCEMENT OF WHICH SHE OPPOSES, SHE
IS ADJUDGED TO HAVE PERSISTED IN DESERTION OF PETITIONER FOR A PERIOD
MORE THAN SUFFICIENT TO ENTITLE HIM UNDER THE LAWS OF THAT STATE TO
DISSOLUTION OF THE BONDS.  CF. HARDING V. HARDING, 198 U.S. 317, 338
339.  WHILE IN THAT STATE LITIGATING THE QUESTION OF HIS STANDING TO
SUE, SHE CHOSE NOT TO ANSWER CHARGES OF WILLFUL DESERTION. 

THIS CASE DIFFERS ESSENTIALLY FROM HADDOCK V. HADDOCK, SUPRA, RELIED
ON BY THE LOWER COURT.  THERE THE HUSBAND, IMMEDIATELY AFTER MARRIAGE
IN NEW YORK, FLED TO ESCAPE HIS MARITAL OBLIGATIONS AND NEVER RETURNED
TO DISCHARGE ANY OF THEM.  THE WIFE REMAINED IN THAT STATE.  HE
ACQUIRED DOMICIL IN CONNECTICUT AND THERE OBTAINED ABSOLUTE DIVORCE. 
SHE DID NOT APPEAR IN THE CONNECTICUT COURT FOR ANY PURPOSE.  THERE WAS
NO SUGGESTION THAT SHE WAS AT FAULT OR DID ANYTHING TO DISRUPT THE
MARITAL RELATION.  IN THIS CASE, THERE EXISTS NONE OF THE REASONS ON
WHICH WE HELD THE NEW YORK COURT NOT BOUND BY THE FULL FAITH AND CREDIT
CLAUSE TO ENFORCE IN THAT STATE THE HUSBAND'S CONNECTICUT DIVORCE. 
PETITIONER FRANKLY PRESENTED TO THE VIRGINIA COURT THE GROUNDS ON WHICH
HE SOUGHT RELEASE.  HE GAVE RESPONDENT ACTUAL NOTICE OF THE SUIT.  SHE
APPEARED, SPECIALLY AS SHE MAINTAINS, AND RAISED AND TRIED THE QUESTION
WHETHER HE HAD STANDING TO SUE.  IN VIEW OF THESE FACTS, AND OF HER
CONDUCT, ADJUDGED REPUGNANT TO THE MARITAL RELATION, IT WOULD BE
UNREASONABLE TO HOLD THAT HIS DOMICIL IN VIRGINIA WAS NOT SUFFICIENT TO
ENTITLE HIM TO OBTAIN A DIVORCE HAVING THE SAME FORCE IN THE DISTRICT
AS IN THAT STATE. 

AS TO RESPONDENT'S APPEARANCE IN THE VIRGINIA COURT.   - THE
ASSERTION IN HER PLEA THAT IT WAS SPECIAL AND MADE FOR THE SOLE PURPOSE
OF CHALLENGING JURISDICTION IS OF NO CONSEQUENCE IF IN FACT IT WAS NOT
SO LIMITED.  SUGG V. THORNTON, 132 U.S. 524, 530.  STERLING TIRE CORP.
V. SULLIVAN, 279 F. 336, 339.  IF THE PLEA ALONE MAY NOT BE HELD TO
AMOUNT TO A GENERAL APPEARANCE, THERE ARISES THE QUESTION WHETHER, BY
HER PARTICIPATION IN THE LITIGATION AND ACQUIESCENCE IN THE ORDERS OF
THE COURT RELATING TO MERITS, SHE SUBMITTED HERSELF TO ITS JURISDICTION
FOR ALL PURPOSES.  HER PLEA AND CONDUCT ARE TO BE CONSIDERED TOGETHER. 

THERE HAD BEEN NO CLAIM OF JURISDICTION OVER HER PERSON.  THE PLEA
DID NOT CHALLENGE JURISDICTION OVER PETITIONER OR THE COURT'S
AUTHORITY, IF APPROPRIATELY INVOKED, TO GRANT THE DECREE PETITIONER
SOUGHT.  IT MERELY ASSERTED THAT HE LACKED DOMICIL REQUIRED BY VIRGINIA
LAW.  HER ALLEGATIONS AND PRAYER SHOW THAT THE SOLE PURPOSE OF THE PLEA
WAS TO JOIN ISSUE WITH PETITIONER'S ALLEGATION OF DOMICIL IN VIRGINIA,
TO SECURE A FINDING AGAINST HIM ON THAT POINT, TO OBTAIN DECREE THAT HE
HAD NO STANDING TO BRING THE SUIT AND SO PUT AN END TO HIS EFFORTS TO
OBTAIN DIVORCE IN THAT STATE. 

THE RECITAL IN THE DECREE OF REFERENCE, THAT THE CAUSE CAME ON FOR
HEARING UPON, INTER ALIA, ARGUMENT OF COUNSEL, SUGGESTS THAT BOTH
PARTIES WERE HEARD.  THE STIPULATION OF COUNSEL THAT THE COMMISSIONER
SHOULD ONLY ASCERTAIN THE FACTS RAISED BY HER PLEA SHOWS ACTION BY BOTH
PARTIES RELATING TO MERITS, AT LEAST TO THE EXTENT THAT IT WITHDREW THE
CASE FROM THE COMMISSIONER.  THE RECORD DISCLOSES NO CHALLENGE BY
RESPONDENT TO THE STATEMENT, IN THE DECREE OVERRULING HER EXCEPTIONS,
THAT THE COURT HAD JURISDICTION OF THE SUBJECT MATTER AND OF THE
PARTIES.  THE GRANT OF TIME WITHIN WHICH TO ANSWER IMPLIES APPLICATION
TO THAT END.  A MOTION FOR SUCH AN ORDER RELATES TO MERITS.  HUPFELD V.
AUTOMATON PIANO CO., 66 F. 788, 789.  THE SERVICE OF NOTICE OF TAKING
DEPOSITIONS UPON RESPONDENT IN THE DISTRICT OF COLUMBIA AND UPON HER
COUNSEL IN VIRGINIA IMPLIES THAT PETITIONER'S COUNSEL UNDERSTOOD THAT
RESPONDENT HAD STANDING TO APPEAR AND CROSS-EXAMINE.  PLAINLY HER PLEA
AND CONDUCT IN THE VIRGINIA COURT CANNOT BE REGARDED AS SPECIAL
APPEARANCE MERELY TO CHALLENGE JURISDICTION.  CONSIDERED IN ITS
ENTIRETY, THE RECORD SHOWS THAT SHE SUBMITTED HERSELF TO THE
JURISDICTION OF THE VIRGINIA COURT AND IS BOUND BY ITS DETERMINATION
THAT IT HAD JURISDICTION OF THE SUBJECT MATTER AND OF THE PARTIES.  CF.
ANDREWS V. ANDREWS, SUPRA, 40. 

NO QUESTION IS HERE PRESENTED AS TO THE EFFECT OF THE VIRGINIA DECREE
ON THE POWER OF THE DISTRICT OF COLUMBIA COURT OVER ALIMONY. 

PETITIONER IS ENTITLED AS A MATTER OF RIGHT TO HAVE THE VIRGINIA
DECREE GIVEN EFFECT IN THE COURTS OF THE DISTRICT OF COLUMBIA.  THE
DECREE OF THE COURT OF APPEALS MUST BE REVERSED; THE CASE WILL BE
REMANDED TO THE DISTRICT COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

FN1  D.C. CODE, TIT. 14, SEC. 63. 

FN2  VA. CODE, 1924, SEC. 5103. 

FN3  VA. CODE, 1936, SEC. 5105. 

FN4  "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." 

FN5  "THE ACTS OF THE LEGISLATURE OF ANY STATE OR TERRITORY, OR OF
ANY COUNTRY SUBJECT TO THE JURISDICTION OF THE UNITED STATES, SHALL BE
AUTHENTICATED BY HAVING THE SEALS OF SUCH STATE, TERRITORY, OR COUNTRY
AFFIXED THERETO.  THE RECORDS AND JUDICIAL PROCEEDINGS OF THE COURTS OF
ANY STATE OR TERRITORY, OR OF ANY SUCH COUNTRY, SHALL BE PROVED OR
ADMITTED IN ANY OTHER COURT WITHIN THE UNITED STATES, BY THE
ATTESTATION OF THE CLERK, AND THE SEAL OF THE COURT ANNEXED, IF THERE
BE A SEAL, TOGETHER WITH A CERTIFICATE OF THE JUDGE, CHIEF JUSTICE, OR
PRESIDING MAGISTRATE, THAT THE SAID ATTESTATION IS IN DUE FORM.  AND
THE SAID RECORDS AND JUDICIAL PROCEEDINGS, SO AUTHENTICATED, SHALL HAVE
SUCH FAITH AND CREDIT GIVEN TO THEM IN EVERY COURT WITHIN THE UNITED
STATES AS THEY HAVE BY LAW OR USAGE IN THE COURTS OF THE STATE FROM
WHICH THEY ARE TAKEN." 
..END :



















DAVIDSON V. COMMISSIONER, 305 U.S. 44 


NO. 18.  ARGUED OCTOBER 14, 1938.  - DECIDED NOVEMBER 7, 1938.  - 94
F.2D 300, AFFIRMED. 


THE TAXPAYER DIRECTED HIS BROKERS TO SELL CERTAIN SHARES BOUGHT BY HIM
IN THE THEN CURRENT YEAR, AND DIRECTED HIS BANK, WHICH HELD THE
CERTIFICATES, TO DELIVER THEM TO THE BROKER.  BY MISTAKE, THE BANK
DELIVERED AND THE BROKER SOLD OTHER SHARES OF THE SAME STOCK WHICH THE
BANK HELD FOR THE TAXPAYER AND WHICH HE HAD BOUGHT IN AN EARLIER YEAR
FOR A LOWER PRICE.  HELD THAT THE TAXABLE GAIN WAS PROPERLY COMPUTED ON
THE BASIS OF THE COST OF THE SHARES SO ACTUALLY SOLD, RATHER THAN THE
HIGHER COST OF THE SHARES WHICH THE TAXPAYER INTENDED TO SELL.  P. 45. 

DAVIDSON V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 304 U.S. 554, TO REVIEW A JUDGMENT AFFIRMING AN ORDER OF
THE BOARD OF TAX APPEALS, 34 B.T.A. 555, WHICH SUSTAINED A DEFICIENCY
INCOME TAX ASSESSMENT. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

UPON PETITIONER'S INSISTENCE AND RESPONDENT'S ADMISSION, THAT THE
DECISION BELOW CONFLICTS WITH THAT OF THE CIRCUIT COURT OF APPEALS FOR
THE SECOND CIRCUIT IN MILLER V. COMMISSIONER, 80 F.2D 219, WE GRANTED A
WRIT OF CERTIORARI.  THE QUESTION PRESENTED IS WHETHER PETITIONER'S
TAXABLE GAIN FROM SALE IN 1929 OF 1,000 SHARES OF STOCK IS TO BE
DETERMINED UPON THE BASIS OF THE COST OF STOCK PETITIONER BOUGHT IN
THAT YEAR, OR UPON THE BASIS OF LOWER COST OF LIKE SHARES EARLIER
BOUGHT BY HIM. 

THE DETAILS FOUND BY THE BOARD OF TAX APPEALS MAY BE GIVEN BRIEFLY. 
MARCH 27, 1929, AT COST OF $49.90 EACH, PETITIONER BOUGHT 1,000 SHARES
FOR WHICH HE RECEIVED 10 SEPARATELY NUMBERED CERTIFICATES COVERING 100
SHARES EACH AND DELIVERED THEM TO A BANK TO BE HELD AS SECURITY FOR A
LOAN.  SOME YEARS EARLIER HE HAD BOUGHT, AT COST OF $4.42 EACH, 1,000
SHARES OF LIKE STOCK FOR WHICH HE OBTAINED CERTIFICATES THAT HE
DELIVERED TO THE SAME BANK AS COLLATERAL SECURITY, WHERE THEY WERE HELD
UNTIL THE SALES HERE INVOLVED.  JUNE 19, 1929 PETITIONER INSTRUCTED HIS
BROKER TO SELL 500 SHARES OF THE STOCK HE BOUGHT MARCH 27, AND, TO
ENABLE THE BROKER TO DELIVER, PETITIONER INSTRUCTED THE BANK TO GIVE
THE BROKER CERTIFICATES COVERING SHARES BOUGHT IN THAT YEAR.  BY
MISTAKE THE BANK DELIVERED HIM CERTIFICATES OF SHARES INCLUDED IN THE
LOT EARLIER PURCHASED BY PETITIONER.  JULY 1, 1929 PETITIONER
INSTRUCTED THE BROKER TO SELL THE REST OF THE LOT BOUGHT IN THAT YEAR
AND DIRECTED THE BANK TO DELIVER THE BROKER CERTIFICATES OF THE STOCK
PETITIONER INTENDED TO HAVE SOLD.  AGAIN FAILING TO FOLLOW
INSTRUCTIONS, THE BANK DELIVERED THE BROKER CERTIFICATES OF STOCK IN
THE OTHER LOT.  IT MAY BE TAKEN AS GRANTED THAT, WHEN HE MADE HIS
RETURN, PETITIONER EXCUSABLY ASSUMED THAT THE BANK HAD FOLLOWED HIS
DIRECTIONS. 

HE REPORTED GAIN ON THE BASIS OF COST OF THE STOCK PURCHASED IN THAT
YEAR.  THE COMMISSIONER CALCULATED GAIN ON THE BASIS OF COST OF THE
STOCK EARLIER PURCHASED AND GAVE NOTICE OF DEFICIENCY.  THE BOARD OF
TAX APPEALS SUSTAINED HIS DETERMINATION.  34 B.T.A. 555.  THE CIRCUIT
COURT OF APPEALS AFFIRMED.  94 F.2D 300. 

PETITIONER CONTENDS THAT BY HIS REFERENCE TO AMOUNTS AND DATES OF
PURCHASES, HE ADEQUATELY DESIGNATED TO THE BROKER THE SHARES TO BE
SOLD; THAT IN FACT THE SHARES SO IDENTIFIED WERE SOLD AND THAT THE
BANK'S DELIVERY OF CERTIFICATES OF OTHER STOCK TO THE BROKER DID NOT
AFFECT PETITIONER'S ORDER.  UNDOUBTEDLY, PETITIONER SUFFICIENTLY
INDICATED TO THE BROKER AND TO THE BANK THE SHARES HE INTENDED TO
SELL.  HE PLAINLY ALLOCATED THE LOTS TO BE SOLD TO THE 1,000 SHARES HE
BOUGHT IN 1929.  BUT IT DOES NOT FOLLOW THAT THEY WERE THE SHARES
SOLD.  HIS INTENTION TO SELL, EVEN WHEN COUPLED WITH HIS ORDER TO THE
BROKER AND DIRECTION TO THE BANK, CANNOT BE HELD TO CONSTITUTE SALE. 
SNYDER V. COMMISSIONER, 295 U.S. 134, 137.  NOTWITHSTANDING HIS ORDER
TO THE BROKER TO SELL SHARES IN THE 1929 LOT, PETITIONER WAS FREE LATER
TO DIRECT THAT SHARES FROM THE OTHER LOT BE USED FOR FINAL CONSUMMATION
OF THE SALE.  AND SO, WHEN THE BANK DELIVERED HIM CERTIFICATES OF STOCK
NOT DESIGNATED IN HIS ORDER TO SELL, THE BROKER MAY WELL HAVE ASSUMED
THAT PETITIONER'S FINAL PURPOSE WAS TO SELL THE SHARES COVERED BY THE
CERTIFICATES THAT THE BANK SENT HIM.  HE HAD NO REASON TO SUPPOSE THAT
THE BANK DID NOT ACT IN ACCORDANCE WITH INSTRUCTIONS GIVEN IT BY
PETITIONER.  THE CASE IS NOT DIFFERENT FROM WHAT IT WOULD HAVE BEEN IF
PETITIONER HIMSELF HAD DELIVERED TO THE BROKER THE CERTIFICATES SENT BY
THE BANK.  PLAINLY, PETITIONER'S CONTENTION THAT THE CERTIFICATES USED
TO COMPLETE THE SALE DID NOT COVER THE SHARES SOLD CANNOT BE UPHELD. 
COMMISSIONER V. RANKIN, 295 U.S. 123, 128.  THE COMMISSIONER RIGHTLY
COMPUTED GAIN ON THE BASIS OF WHAT WAS DONE RATHER THAN ON WHAT
PETITIONER INTENDED TO DO. UNITED STATES V. PHELLIS, 257 U.S. 156, 172;
BONHAM V. COMMISSIONER, 89 F.2D 725, 728; CURTIS V. COMMISSIONER, 89
F.2D 736, 738; REMINGTON RAND, INC. V. COMMISSIONER, 33 F.2D 77, 78. 
AFFIRMED. 
..END :







SCHRIBER CO. V. CLEVELAND TRUST CO., 305 U.S. 47 


NO. 3.  ARGUED OCTOBER 18, 19, 1938.  - DECIDED NOVEMBER 7, 1938.  - 92
F.2D 330, REVERSED. 


1.  WHERE IT IS IMPROBABLE, NOTWITHSTANDING THE DOUBTFUL VALIDITY OF A
PATENT, THAT CONFLICT OF DECISION RESPECTING ITS VALIDITY WILL ARISE IN
DIFFERENT CIRCUITS, BECAUSE OF THE CONCENTRATION IN ONE CIRCUIT OF THE
INDUSTRY IN WHICH THE PATENTED DEVICES ARE USED, THERE IS REASON FOR
GRANTING CERTIORARI TO REVIEW A DECISION IN THAT CIRCUIT SUSTAINING IT.
P. 50. 

2.  A PATENT DOES NOT EXTEND BEYOND THE INVENTION DESCRIBED AND
EXPLAINED AS THE STATUTE REQUIRES; IT CAN NOT BE ENLARGED BY CLAIMS IN
THE PATENT NOT SUPPORTED BY THE DESCRIPTION.  P. 57. 

3.  THE APPLICATION FOR A PATENT CAN NOT BE BROADENED BY AMENDMENT SO
AS TO EMBRACE AN INVENTION NOT DESCRIBED IN THE APPLICATION AS FILED,
AT LEAST WHEN ADVERSE RIGHTS HAVE INTERVENED.  POWERS-KENNEDY CO. V.
CONCRETE CO., 282 U.S. 175; PERMUTIT CO. V. GRAVER CORPORATION, 284
U.S. 52.  ID. 

4.  AMENDMENTS TO PATENT NO. 1,815,733, TO GULICK, FOR A COMBINATION
IN THE STRUCTURE OF PISTONS OF INTERNAL COMBUSTION ENGINES FOR
AUTOMOBILES, DESIGNED TO PREVENT UNDUE THERMAL EXPANSION OF THE PISTONS
WHEN IN OPERATION, WERE UNLAWFULLY ADDED.  P. 51. 

5.  IN THIS COMBINATION, THE HEAD AND SKIRT OF THE PISTON, SEPARATED
BY AN AIR SPACE, ARE CONNECTED AND HELD IN PROPER RELATION TO EACH
OTHER BY TWO WEBS WHICH EXTEND LONGITUDINALLY WITHIN THE SKIRT AND
WHICH, PIERCED AT RIGHT ANGLES FOR WRIST-PIN BEARINGS, SUPPORT THE
PISTON PIN BOSSES.  THE SKIRT IS LONGITUDINALLY SPLIT IN ORDER TO
MINIMIZE THE EFFECTS OF THERMAL EXPANSION.  THE CIRCUIT COURT OF
APPEALS REGARDED LATERAL FLEXIBILITY OF THE WEBS AS AN ESSENTIAL
ELEMENT OF THE INVENTION.  THE ORIGINAL APPLICATION, HOWEVER, CONTAINED
NO REFERENCE IN TERMS TO LATERALLY FLEXIBLE WEBS OR TO THE FUNCTION OF
THE WEBS IN SECURING FLEXIBILITY OF THE SKIRT, BUT DESCRIBED THE WEBS
AS "EXTREMELY RIGID" AND STATED THAT AN OBJECT OF THE INVENTION WAS "TO
RIGIDLY SUPPORT THE PISTON PIN BOSSES FROM THE PISTON WALLS," AND THAT
THE ARRANGEMENT PROVIDED "A PARTICULARLY STRONG SUPPORT FOR THE
BOSSES."  THE WEBS, AS SHOWN BY THE DRAWINGS, CONFORMED TO THESE
SPECIFICATIONS, AND NEITHER DRAWINGS NOR SPECIFICATIONS GAVE DIMENSIONS
SHOWING THICKNESS OR OTHER PROPORTIONS OF THE WEBS WHICH MIGHT SUGGEST
A FLEXIBLE STRUCTURE.  HELD: 

(1)  THAT, AFTER A SIMILAR PISTON WITH THE ELEMENT OF FLEXIBLE WEBS
HAD COME INTO COMMERCIAL USE AND ANOTHER HAD BEEN DESCRIBED IN AN
APPLICATION FOR PATENT, THE PATENTEE COULD NOT ADD THAT ELEMENT TO HIS
APPLICATION BY AMENDMENT.  P. 55. 

(2)  AMENDMENTS TO THAT END COULD NOT BE SUPPORTED AS BEING BUT
CLARIFICATIONS OF THE APPLICATION AS FILED.  P. 57. 

THE CONTENTION THAT LATERAL FLEXIBILITY WAS IMPLIED IN THE ORIGINAL
DESCRIPTION AS AN INHERENT PROPERTY OF THE METAL COMPOSING THE WEB, AND
WAS DISCLOSED BY THE DRAWINGS, IS REJECTED. 

INHERENT FLEXIBILITY OF THE WEB IN COOPERATION WITH THE SLIT SKIRT
CAN NOT BE DEPENDED UPON TO PRODUCE THE DESIRED EFFECT IN RENDERING THE
SKIRT YIELDABLE IN RESPONSE TO CYLINDER WALL PRESSURE.  THAT DEPENDS
UPON DESIGN OF THE WEB, WITH CORRECT PROPORTIONING OF THE DIFFERENT
PARTS AS TO LOCATION AND THICKNESS TO PRODUCE LATERAL FLEXIBILITY. 
INHERENT RIGIDITY, MADE MORE EFFECTIVE BY DESIGN OF THE WEBS, WOULD
CORRESPONDINGLY CURTAIL THE DESIRED EFFECT. 

6.  DECISIONS OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
AND THE COURT OF CUSTOMS AND PATENT APPEALS SUSTAINING THE GULICK
AMENDMENTS ARE ACCORDED WEIGHT BUT ARE NOT CONTROLLING IN THIS COURT
WHEN THE VALIDITY OF THE AMENDMENTS IS INVOLVED IN AN INFRINGEMENT
CASE.  P. 59. 

7.  AS FLEXIBLE WEBS ARE NEITHER DESCRIBED IN THE SPECIFICATIONS NOR
MENTIONED IN THE CLAIMS OF THE PATENT FOR A LIKE COMBINATION TO
MAYNARD, NO. 1,655,968, THEY CAN BE IMPORTED INTO THEM ONLY BY
REFERENCE TO THE DRAWINGS OR BY INFERENCE FROM THE INHERENT FLEXIBILITY
OF THE STRUCTURE, WHICH, AS IN THE CASE OF GULICK, ARE INSUFFICIENT TO
ACCOMPLISH THE RESULT.  P. 60. 

SCHRIBER-SCHROTH CO. V. CLEVELAND TRUST CO. ET AL.* 

*TOGETHER WITH NO. 4, ABERDEEN MOTOR SUPPLY CO. V. CLEVELAND TRUST
CO. ET AL., AND NO. 5, F.E. ROWE SALES CO. V. CLEVELAND TRUST CO. ET
AL., ALSO ON WRITS OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE SIXTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 304 U.S. 587, TO REVIEW THE REVERSAL OF A DECREE HOLDING
CERTAIN PATENT CLAIMS INVALID IN SUITS FOR INFRINGEMENT.  OTHER
PATENTS, HELD INVALID BY THE DISTRICT COURT, BUT NOT PASSED UPON BY THE
COURT BELOW, WERE NOT INVOLVED IN THIS REVIEW. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT* . 

*OPINION REPORTED AS AMENDED BY ORDER OF DECEMBER 12, 1938, POST, P.
573. 

THE PRINCIPAL QUESTION FOR DECISION IS WHETHER THE COURT BELOW
RIGHTLY SUSTAINED THE VALIDITY OF TWO PATENTS BY INCLUDING IN THE
COMBINATION CONSTITUTING THE ALLEGED INVENTION OF EACH AN ELEMENT WHICH
WAS NOT IN TERMS DESCRIBED IN ONE, AND THE DESCRIPTION OF WHICH IN THE
OTHER WAS ADDED ONLY BY AMENDMENT TO THE APPLICATION AFTER IT WAS
FILED. 

RESPONDENT, THE CLEVELAND TRUST COMPANY, IS THE ASSIGNEE IN TRUST OF
SOME EIGHTY PATENTS RELATING TO PISTONS OF THE TYPE EMPLOYED IN
INTERNAL COMBUSTION ENGINES FOR AUTOMOBILES, UNDER A POOLING AGREEMENT
TO WHICH AN AUTOMOBILE MANUFACTURER AND A NUMBER OF MANUFACTURERS OF
PISTONS ARE PARTIES.  IT BROUGHT THE PRESENT SUITS IN THE DISTRICT
COURT FOR NORTHERN OHIO TO ENJOIN INFRINGEMENT OF FIVE OF THE ASSIGNED
PATENTS.  THE CASE WAS TRIED BEFORE A SPECIAL MASTER WHO, UPON THE
BASIS OF ELABORATE FINDINGS, HELD THAT THE GULICK PATENT, NO.
1,815,733, APPLIED FOR NOVEMBER 30, 1917 AND ALLOWED JULY 31, 1931, WAS
INVALID FOR WANT OF INVENTION AND BECAUSE OF THE ADDITION TO THE
APPLICATION BY AMENDMENT IN 1922 OF A NEW ELEMENT OF THE ALLEGED
INVENTION.  IN REACHING THIS CONCLUSION HE RELIED ON THIS COURT'S
DECISIONS IN POWERS-KENNEDY CORP. V. CONCRETE CO., 282 U.S. 175 AND
PERMUTIT CO. V. GRAVER CORPORATION, 284 U.S. 52, AS INCONSISTENT WITH
THE RESULT OF INTERFERENCE PROCEEDINGS IN WHICH GULICK'S AMENDMENTS
WERE SUSTAINED, LONG V. GULICK, 17 F.2D 686, HARTOG V. LONG, 47 F.2D
369.  THE MASTER ALSO HELD THAT THE MAYNARD PATENT NO. 1,655,968,
APPLIED FOR JANUARY 3, 1921 AND ALLOWED JANUARY 10, 1928, WAS INVALID
FOR WANT OF INVENTION AND FOR FAILURE TO DESCRIBE AND CLAIM THE ALLEGED
INVENTION.  HE HELD INVALID UPON VARIOUS GROUNDS THE OTHER PATENTS,
WHICH ARE NOT PRESENTLY INVOLVED. 

THE DISTRICT COURT ADOPTED THE FINDINGS AND CONCLUSIONS OF THE MASTER
AND GAVE ITS DECREE FOR PETITIONERS.  THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT REVERSED, AS TO THE GULICK AND MAYNARD PATENTS ONLY,
HOLDING THAT THEY WERE VALID AND INFRINGED.  92 F.2D 330.  FN1  AS THE
COURT REGARDED THE CLAIMS WHICH IT SUSTAINED AS BASIC AND THOUGHT THAT
A FULL RECOVERY COULD BE HAD BY RESPONDENT UNDER THEM, IT DID NOT PASS
UPON THE VALIDITY OF THE OTHER PATENTS OR DECIDE OTHER QUESTIONS
INVOLVED IN THE APPEAL. 

PETITION FOR CERTIORARI RAISING THE QUESTION, AMONG OTHERS, WHETHER
THE COURT OF APPEALS HAD ERRED IN HOLDING PATENTABLE A COMBINATION
INCLUDING ONE ELEMENT NOT DESCRIBED IN THE ORIGINAL APPLICATION FOR THE
GULICK PATENT AND LATER ADDED TO IT BY AMENDMENT, AND NOT DESCRIBED AT
ALL IN THE MAYNARD PATENT, WAS AT FIRST DENIED, THERE BEING NO CONFLICT
OF DECISION.  303 U.S. 639.  WE LATER GRANTED CERTIORARI, 304 U.S. 587,
ON A PETITION FOR REHEARING SHOWING THAT, NOTWITHSTANDING THE DOUBTFUL
VALIDITY OF THE PATENTS, LITIGATION ELSEWHERE WITH A RESULTING CONFLICT
OF DECISION WAS IMPROBABLE BECAUSE OF THE CONCENTRATION OF THE
AUTOMOBILE INDUSTRY IN THE SIXTH CIRCUIT.  CF. PARAMOUNT PUBLIX CORP.
V. AMERICAN TRI-ERGON CORP., 294 U.S. 464; ALTOONA PUBLIX THEATRES V.
AMERICAN TRI-ERGON CORP., 294 U.S. 477. 

IT IS IMPORTANT FOR THE PROPER FUNCTIONING OF THE PISTON IN A GAS
ENGINE THAT IT SHOULD FIT THE EXPLOSION CHAMBER CLOSELY SO AS TO
CONSERVE POWER, PREVENT THE PASSAGE OF LUBRICATING OIL AROUND THE
PISTON INTO THE CHAMBER, AND INSURE THE SMOOTH AND NOISELESS MOVEMENT
OF THE PISTON WITHIN THE CYLINDER.  IN DESIGNING GAS ENGINES FOR
AUTOMOBILES AND OTHER PURPOSES REQUIRING A HIGH SPEED PISTON
RECIPROCATION WITH THE ACCOMPANYING DEVELOPMENT OF HIGH TEMPERATURE IN
THE EXPLOSION CHAMBER, IT IS DESIRABLE TO AVOID THERMAL EXPANSION OF
THE CLOSE FITTING PISTON, WHICH WILL RESULT IN LOSS OF POWER AND
POSSIBLE INJURY TO THE MECHANISM THROUGH INCREASED FRICTION, WHICH MAY
CAUSE THE PISTON TO SEIZE OR STICK.  THE DANGER OF UNDUE EXPANSION IS
INCREASED WHEN, AS IS ADVANTAGEOUS IN AUTOMOBILE ENGINES, THE PISTON IS
OF ALUMINUM, WHICH HAS A HIGHER COEFFICIENT OF EXPANSION THAN THE IRON
OR STEEL CHAMBER WITHIN WHICH THE PISTON MOVES. 

BOTH THE GULICK AND MAYNARD PATENTS ARE FOR COMBINATIONS IN THE
STRUCTURE OF A PISTON FOR GAS ENGINES DESIGNED TO PREVENT OR RESTRICT
UNDUE EXPANSION OF THE PISTON WHEN IN OPERATION.  THE GULICK PATENT
EXHIBITS A PISTON IN WHICH THE RING-CARRYING HEAD IS SEPARATED BY AN
AIR SPACE AT ITS PERIPHERY FROM THE CYLINDRICALLY SHAPED SKIRT OR GUIDE
WALL, WHOSE SURFACE ENGAGES THE INNER SURFACE OF THE CYLINDER.  THE
PISTON HEAD AND SKIRT ARE CONNECTED BY TWO "WEBS" OR WALLS EXTENDING
LONGITUDINALLY THROUGH THE INTERIOR OF THE SKIRT.  THE WEBS ARE PIERCED
AT RIGHT ANGLES FOR WRIST PIN BEARINGS, AND SUPPORT, AT THE BEARINGS,
PISTON PIN BOSSES FORMED WITH INTEGRAL FLANGES EXTENDING LATERALLY FROM
THEIR RESPECTIVE BOSSES TO FORM THE WEBS, WHICH IN TURN ARE INTEGRALLY
CONNECTED ON EITHER SIDE WITH THE INTERIOR WALL OF THE LOWER PART OF
THE SKIRT AND AT THEIR ENDS WITH THE PISTON HEAD.  THE SKIRT IS
LONGITUDINALLY SPLIT ON ONE SIDE AT A POINT IN ITS CIRCUMFERENCE
APPROXIMATELY MIDWAY BETWEEN THE PIN BOSSES, WITH THE EDGES OF THE
SKIRT FORMED BY THE SPLIT SEPARATED SO AS TO ADMIT OF THE FREE MOVEMENT
OF THE EDGES TOWARD EACH OTHER. 

THE STRUCTURE IS THUS DESIGNED TO MINIMIZE THE EXPANSION RESULTING
FROM HIGH TEMPERATURES DEVELOPED IN THE CHAMBER AND TO AVOID THE
EFFECTS OF THERMAL EXPANSION OF THE SKIRT.  THE WEBS, WHICH AFFORD AT
THE WRIST PIN BEARINGS THE MEANS FOR CONNECTING THE PISTON-ROD WITH THE
PISTON, SERVE TO HOLD THE HEAD AND SKIRT IN PROPER RELATION TO EACH
OTHER SO THAT THE AIR SPACE BETWEEN THEM RETARDS FLOW OF HEAT FROM THE
HEAD TO THE SKIRT, UNDUE EXPANSION OF THE SKIRT, AND THE CONSEQUENT
INCREASE OF FRICTION BETWEEN PISTON AND ENVELOPING CYLINDER.  UNDUE
EXPANSION OF THE PISTON IS SAID BY THE PATENT'S SPECIFICATIONS TO BE
AVOIDED BY THE SEPARATION OF THE SKIRT BY THE LONGITUDINAL SPLIT IN
ORDER TO ADMIT OF UNRESTRAINED MOVEMENT OF THE EDGES OF THE SKIRT
TOWARD EACH OTHER.  ELSEWHERE THEY STATE THAT "WHEN THE LONGITUDINAL
SPLIT IS USED, AS SHOWN, THE WEB STRUCTURE HAS SUFFICIENT LATERAL
FLEXIBILITY TO PERMIT THE SPLIT TO CLOSE MORE OR LESS UNDER THE ACTION
OF THE EXPANSION FORCES INCIDENT TO THE HEATING OF THE PISTON." 

THE ELEMENTS OF THE COMBINATION AS ENUMERATED IN CLAIM 39 ARE:  "A
PISTON FOR AN ENGINE CYLINDER COMPRISING A SKIRT, A HEAD SEPARATED FROM
THE SKIRT WALL AROUND ITS ENTIRE PERIPHERY, SAID SKIRT BEING
LONGITUDINALLY SPLIT TO RENDER THE SKIRT WALL YIELDABLE ON EVERY
DIAMETER IN RESPONSE TO CYLINDER WALL PRESSURE, WRIST PIN BOSSES, AND
MEANS RIGIDLY CONNECTING SAID BOSSES TO THE HEAD AND YIELDINGLY
CONNECTING SAID BOSSES TO THE SKIRT WHEREBY SAID SKIRT IS YIELDABLE IN
RESPONSE TO CYLINDER WALL PRESSURE."  REFERENCE TO A COMBINATION
INCLUDING, WITH OTHER ELEMENTS, WEB CONNECTIONS, "WHEREBY SAID PISTON
SKIRT IS RENDERED YIELDABLE DURING OPERATION IN RESPONSE TO CYLINDER
WALL PRESSURE," APPEARS IN CLAIM 18. 

THE COMBINATION OF PISTON HEAD SEPARATED FROM A SLITTED SKIRT BY AN
AIR SPACE, THE TWO BEING CONNECTED BY WEBS SUPPORTING WRIST PIN
BEARINGS WITH BOSSES WHICH DO NOT COME DIRECTLY IN CONTACT WITH THE
WALLS OF THE SKIRT, WAS PLAINLY FORESHADOWED BY THE PRIOR ART AS A
PRACTICABLE MEANS OF MINIMIZING THE FLOW OF HEAT FROM HEAD TO SKIRT AND
OF SECURING LATERAL FLEXIBILITY IN THE SKIRT.  THE EXPIRED SPILLMAN AND
MOOERS PATENT NO. 1,092,870, OF APRIL 14, 1914, POOLED WITH THE PATENTS
IN SUIT, SHOWED A PISTON WITH HEAD SEPARATED BY AN AIR SPACE FROM THE
SKIRT, THE TWO BEING CONNECTED BY A WEB SEPARATED FROM THE SKIRT EXCEPT
AT THE POINT OF INTEGRAL CONNECTION WITH IT AT THE LOWER END OF THE
PISTON, AND PROVIDING BEARINGS FOR A WRIST PIN CONNECTION WITH BOSSES
NOT IN DIRECT CONTACT WITH THE WALL OF THE SKIRT. 

FLEXIBILITY OF THE SKIRT ATTAINED BY LONGITUDINAL SLITS WAS OLD, AS
SHOWN BY THE EBBS PATENT NO. 700,309 OF 1902, AND VAN BEVER, NO.
1,031,212 OF 1912.  THE FRANQUIST PISTON, PATENT NO. 1,153,902 OF 1915,
ANOTHER OF THE POOLED PATENTS, WHICH SHOWED PISTON HEAD PARTIALLY
SEPARATED FROM SKIRT BY AIR SPACES, ATTAINED FLEXIBILITY OF THE PISTON
WALL BY LONGITUDINAL GROOVES IN THE SKIRT WHICH INTERRUPTED ITS OUTER
PERIPHERY THOUGH CONNECTED AT THE INNER EDGES OF THE GROOVE BY A FOLD
OF THE METAL ON THE ACCORDION PRINCIPLE.  THE LONG PISTON, PATENT NO.
1,872,772 OF 1932, WHICH THE MASTER AND THE DISTRICT COURT FOUND WAS IN
COMMERCIAL USE FROM 1917 ON, AND BEFORE THE AMENDMENT OF THE GULICK
APPLICATION, PRESENTLY TO BE DISCUSSED, SHOWED LONGITUDINAL SLITS CUT
THROUGH THE SKIRT, WHICH WAS SEPARATED BY AIR SPACES FROM THE PISTON
HEAD, THE TWO BEING CONNECTED BY PARALLEL WEBS PIERCED FOR WRIST PIN
BEARINGS. 

THE COURT BELOW FOUND INVENTION IN THE GULICK DISCLOSURE IN A
COMBINATION OF ELEMENTS, OF WHICH ONE WAS WEBS "LATERALLY FLEXIBLE,"
WHICH WERE NOT SPECIFICALLY SO DESCRIBED IN THE GULICK APPLICATION
UNTIL THE AMENDMENT OF 1922.  CONCEDING THAT THE DECELERATION OF THE
FLOW OF HEAT FROM HEAD TO SKIRT BY AN AIR GAP MIGHT BE AN OBVIOUS
EXPEDIENT OF THE ART, AND THAT TO SLIT THE SKIRT VERTICALLY SO AS TO
COMPENSATE FOR THERMAL EXPANSION MIGHT NOT BE BEYOND THE SKILL OF THE
ART, THE COURT ADDED:  "BUT TO COMBINE INSULATION OF HEAD FROM SKIRT,
RETRACTION OF THE BOSSES FROM THE SKIRT PERIPHERY, CONNECTION OF SUCH
BOSSES TO THE SKIRT WITH WEBS LATERALLY FLEXIBLE AND YET SO CARRIED
FROM THE HEAD AS TO SUPPORT THE LOAD UPON THE WRIST PIN WITH SUFFICIENT
STRENGTH AND RIGIDITY, AND TO UTILIZE THE MECHANICAL FORCE OF THE
CYLINDER WALL UPON THE SKIRT AND THE THERMAL EXPANSION OF THE BOSSES SO
AS TO COMPENSATE EVENLY AND FULLY FOR HEAD EXPANSION AND TO SECURE A
BALANCED FLEXIBILITY OF THE SKIRT WITH NO BENDING CONCENTRATION AT ANY
POINT THEREIN, DISCLOSES, WE THINK, A MERITORIOUS CONCEPT BEYOND THE
REACH OF THOSE SKILLED IN THE ART."  92 F.2D, AT 334. 

WE CAN FIND NO SUPPORT IN THE OPINION FOR THE CONTENTION OF
RESPONDENT THAT THE CIRCUIT COURT OF APPEALS DID NOT CONSIDER THE
FLEXIBLE WEB AN ESSENTIAL ELEMENT IN GULICK'S INVENTION.  ITS
ENUMERATION, AMONG OTHER NAMED ELEMENTS, OF THE CONNECTION OF HEAD AND
SKIRT BY WEBS LATERALLY FLEXIBLE AS EMBODYING A MERITORIOUS CONCEPT
MUST BE TAKEN TO INDICATE THAT THE COURT REGARDED THE FLEXIBLE WEBS AS
A PART OF THE INVENTION, THE MORE SO SINCE IT INDICATES THAT LATERAL
FLEXIBILITY OF THE WEBS IS THE ONLY FEATURE MENTIONED NOT WITHIN THE
PRIOR ART OR WITHIN THE EXPECTED SKILL OF THE ART. IT REJECTED, ON THE
AUTHORITY OF LONG V. GULICK, SUPRA, AND HARTOG V. LONG, SUPRA, THE
CONTENTION MADE BELOW AND PRESSED HERE THAT GULICK'S APPLICATION AS
FILED DID NOT DISCLOSE "WEBS LATERALLY FLEXIBLE" AND THE RESULTANT
"BALANCED FLEXIBILITY OF THE SKIRT," AND THAT THOSE FEATURES WERE ADDED
TO SPECIFICATIONS AND CLAIMS AFTER THE USE OF THE LONG PISTON AND AFTER
THEY HAD APPEARED IN HARTOG. 

THE GULICK APPLICATION, WHICH WAS FILED NOVEMBER 30, 1917, CONTAINED
NO REFERENCE IN TERMS TO LATERALLY FLEXIBLE WEBS OR TO THE FUNCTION OF
THE WEBS IN SECURING FLEXIBILITY OF THE SKIRT.  THE SPECIFICATIONS
POINTED TO NO INADEQUACY IN THE STRUCTURE OR FUNCTION OF WEBS OF THE
PRIOR ART WHICH WOULD BE REMEDIED BY THE WEBS SPECIFIED AND TO NO
FUNCTION TO BE PERFORMED BY THEM OTHER THAN AS A MEANS OF CONNECTING
AND HOLDING HEAD AND SKIRT SO AS TO MAINTAIN THE AIR GAP BETWEEN THEM
AND TO SUPPORT THE WRIST PIN BEARINGS AND THEIR BOSSES AS BOTH WERE
SHOWN IN SPILLMAN AND MOOERS.  ON THE CONTRARY, GULICK'S APPLICATION
DESCRIBED THE WEBS AS "EXTREMELY RIGID" AND STATED THAT AN OBJECT OF
THE INVENTION WAS "TO RIGIDLY SUPPORT THE PISTON PIN BOSSES OF A PISTON
FROM THE PISTON WALLS."  THE ONLY DESCRIPTION OF THE WEB STRUCTURE WAS
AS FOLLOWS: 

"IT WILL BE SEEN THAT IN ADDITION TO PROVIDING A PISTON WITH A SPLIT
SKIRT THE ABOVE DESCRIBED CONSTRUCTION ALSO PROVIDES AN EXTREMELY RIGID
CONNECTION BETWEEN THE PISTON PIN BOSSES AND THE SKIRT OF THE PISTON,
WHICH CONSTRUCTION MAY BE USED EITHER WITH OR WITHOUT THE SPLIT SKIRT
AND SEPARATED HEAD.  THE ARRANGEMENT OF THE SUPPORTING FLANGES 17
BETWEEN THE ENDS OF THE PISTON PIN BOSSES AND THE CONNECTION OF THOSE
FLANGES WITH THE PISTON SKIRT PROVIDE A PARTICULARLY STRONG SUPPORT FOR
THE BOSSES."  THE WEBS AS SHOWN BY THE DRAWINGS CONFORM TO THE
SPECIFICATIONS OF AN "EXTREMELY RIGID CONNECTION" BETWEEN PISTON PIN
BOSSES AND SKIRT AND "A PARTICULARLY STRONG SUPPORT FOR THE BOSSES." 
THEY FORM CHORDS SUBTENDING THE ARC OF THE CIRCLE OF THE SKIRT, WITH
FLANGES DEPENDING FROM THE HEAD TO THE BOSSES AT RIGHT ANGLES TO THE
WEBS, AND THE SKIRT AS SHOWN IS PROVIDED WITH INTERIOR CORRUGATIONS AND
WITH AN INTURNED FLANGE AT THE BOTTOM, ALL FAMILIAR DEVICES FOR
SECURING RIGIDITY OF STRUCTURE.  NEITHER DRAWINGS NOR SPECIFICATIONS
GIVE DIMENSIONS SHOWING THICKNESS OR OTHER PROPORTIONS WHICH MIGHT
SUGGEST A FLEXIBLE STRUCTURE.   IN 1922, AFTER THE LONG PISTON, WHOSE
WEBS CONCEDEDLY WERE LATERALLY FLEXIBLE, WAS IN COMMERCIAL USE, AND
HARTOG, TO THE KNOWLEDGE OF GULICK'S ASSIGNEE, HAD SPECIFIED AND
CLAIMED A YIELDABLE WEB, GULICK COPIED THE HARTOG CLAIM AND AMENDED HIS
SPECIFICATIONS SO AS TO STATE THAT ONE OF THE OBJECTS OF HIS INVENTION
WAS "TO RIGIDLY SUPPORT THE PISTON PIN BOSSES OF A PISTON FROM THE
PISTON WALL AGAINST MECHANICAL LOAD THRUST FROM THE CONNECTING ROD
WITHOUT INTERFERING WITH THE YIELDING CHARACTERISTICS OF THE SKIRT IN
RESPONSE TO CYLINDER WALL PRESSURE."  AND HE AMENDED HIS DESCRIPTION OF
THE WEB STRUCTURE TO READ: 

"THE ARRANGEMENT OF THE SUPPORTING FLANGES 17 BETWEEN THE ENDS OF THE
PISTON PIN BOSSES AND THE CONNECTIONS OF THOSE FLANGES WITH BOTH THE
PISTON GUIDE PORTION AND THE HEAD PROVIDE A PARTICULARLY STRONG
CONSTRUCTION, AND AT THE SAME TIME, WHEN THE LONGITUDINAL SPLIT IS
USED, AS SHOWN, THE WEB STRUCTURE HAS SUFFICIENT LATERAL FLEXIBILITY TO
PERMIT THE SPLIT TO CLOSE MORE OR LESS UNDER THE ACTION OF THE
EXPANSION FORCES INCIDENT TO THE HEATING OF THE PISTON." 

PETITIONERS INSIST THAT THE FLEXIBLE WEB ELEMENT OF THE GULICK
COMBINATION, AS FOUND AND SUSTAINED BY THE COURT BELOW, IS EXCLUDED
FROM THE GULICK PATENT BY REASON OF HIS FAILURE TO DESCRIBE THAT
ELEMENT IN HIS APPLICATION AS FILED, AND THAT HE COULD NOT CURE THE
OMISSION AND SECURE A PATENT EMBODYING THAT FEATURE BY SUBSTITUTING BY
WAY OF AMENDMENT "WEBS LATERALLY FLEXIBLE" FOR "EXTREMELY RIGID WEBS"
IN THE DESCRIPTION OF HIS INVENTION.  THE STATUTE, R.S. SEC. 4888,
PROVIDES THAT THE APPLICATION WHICH THE INVENTOR MUST FILE AS A
PREREQUISITE TO A PATENT SHALL CONTAIN "A WRITTEN DESCRIPTION OF (HIS
INVENTION)  ...  AND OF THE MANNER AND PROCESS OF MAKING, CONSTRUCTING
...  AND USING IT, IN SUCH FULL, CLEAR, CONCISE, AND EXACT TERMS AS TO
ENABLE ANY PERSON SKILLED IN THE ART  ...  TO  ... CONSTRUCT  ...  AND
USE THE SAME; AND IN CASE OF A MACHINE, HE SHALL EXPLAIN THE PRINCIPLE
THEREOF, AND THE BEST MODE IN WHICH HE HAS CONTEMPLATED APPLYING THAT
PRINCIPLE, SO AS TO DISTINGUISH IT FROM OTHER INVENTIONS; ...  " 

THE OBJECT OF THE STATUTE IS TO REQUIRE THE PATENTEE TO DESCRIBE HIS
INVENTION SO THAT OTHERS MAY CONSTRUCT AND USE IT AFTER THE EXPIRATION
OF THE PATENT AND "TO INFORM THE PUBLIC DURING THE LIFE OF THE PATENT
OF THE LIMITS OF THE MONOPOLY ASSERTED, SO THAT IT MAY BE KNOWN WHICH
FEATURES MAY BE SAFELY USED OR MANUFACTURED WITHOUT A LICENSE AND WHICH
MAY NOT."  PERMUTIT CO. V. GRAVER CORPORATION, 284 U.S. 52, 60.  IT
FOLLOWS THAT THE PATENT MONOPOLY DOES NOT EXTEND BEYOND THE INVENTION
DESCRIBED AND EXPLAINED AS THE STATUTE REQUIRES, PERMUTIT CO. V. GRAVER
CORPORATION, SUPRA, AT 57; THAT IT CANNOT BE ENLARGED BY CLAIMS IN THE
PATENT NOT SUPPORTED BY THE DESCRIPTION, SNOW V. LAKE SHORE & M.S. RY.
CO., 121 U.S. 617; CF. SMITH V. SNOW, 294 U.S. 1; AND THAT THE
APPLICATION FOR A PATENT CANNOT BE BROADENED BY AMENDMENT SO AS TO
EMBRACE AN INVENTION NOT DESCRIBED IN THE APPLICATION AS FILED, AT
LEAST WHEN ADVERSE RIGHTS OF THE PUBLIC HAVE INTERVENED.  RAILWAY CO.
V. SAYLES, 97 U.S. 554, 563, 564; POWERS-KENNEDY CORP. V. CONCRETE CO.,
282 U.S. 175, 185-186; CF. WEBSTER ELECTRIC CO. V. SPLITDORF ELECTRICAL
CO., 264 U.S. 463; PERMUTIT CO. V. GRAVER CORPORATION, SUPRA; CROWN
CORK & SEAL CO. V. GUTMANN CO., 304 U.S. 159. 

RESPONDENT EARNESTLY ARGUES, AS BOTH COURTS HELD IN THE INTERFERENCE
PROCEEDINGS, LONG V. GULICK, SUPRA, AND HARTOG V. LONG, SUPRA, THAT THE
CHANGES IN GULICK'S APPLICATION WERE NOT ALTERATIONS IN THE DESCRIPTION
OF HIS INVENTION BUT WERE AT MOST A PERMISSIBLE CLARIFICATION OF ITS
DESCRIPTION OF THE FLEXIBLE WEB ELEMENT WHICH WAS PRESENT, OR AT LEAST
PLAINLY SUGGESTED, IN THE SPECIFICATIONS AND DRAWINGS OF THE GULICK
APPLICATION.  FLEXIBILITY, IT IS SAID, AS IS WELL KNOWN TO THOSE
SKILLED IN THE ART, IS AN INHERENT PROPERTY OF THE METAL OUT OF WHICH
THE WEBS ARE MADE, AND IN CONSEQUENCE REFERENCE TO THE WEBS IN THE
APPLICATION AS FILED WAS SUFFICIENT TO IMPORT INTO IT AS A PART OF THE
DESCRIPTION OF THE INVENTION THEIR KNOWN QUALITY OF FLEXIBILITY, A
DESCRIPTION WHICH WAS MADE MORE SPECIFIC, BUT NOT ALTERED, BY THE
AMENDMENTS.  THE ARGUMENT SUGGESTS THAT IT WAS BUT THE SKILL OF THE
ART, AND NOT INVENTION, TO SUBSTITUTE A FLEXIBLE FOR A RIGID MEANS OF
CONNECTING HEAD AND SKIRT IN A KNOWN COMBINATION OF PISTON HEAD
SEPARATED FROM A SLITTED SKIRT BY AN AIR SPACE AND CONNECTED BY WEBS. 
BUT IN ANY CASE WE THINK IT FALLS SHORT OF ESTABLISHING THAT THE GULICK
AMENDMENTS WERE NOT NEW MATTER BEYOND THE SCOPE OF THE DEVICE DESCRIBED
IN THE APPLICATION AS FILED. 

THE PROPERTIES OF ANY GIVEN MATERIAL ARE MANY AND DIVERSE.  THE
ANTITHETICAL QUALITIES OF RIGIDITY AND FLEXIBILITY OF A STRUCTURE ARE
NOT ABSOLUTE BUT RELATIVE; IT MAY BE MORE RIGID THAN SOME AND MORE
FLEXIBLE THAN OTHERS; TOO RIGID FOR SOME PURPOSES AND TOO FLEXIBLE FOR
OTHERS.  THE ONE QUALITY MAY BE INCREASED AND THE OTHER DIMINISHED BY
CHOICE OF MATERIALS FROM WHICH THE STRUCTURE IS MADE AND BY VARIATION
IN ITS PROPORTIONS.  IF INVENTION DEPENDS ON EMPHASIS OF ONE QUALITY
OVER THE OTHER, AS THE COURT BELOW FOUND WAS THE CASE WITH THE
LATERALLY FLEXIBLE WEBS IN THE GULICK DEVICE, THE STATUTE REQUIRES THAT
EMPHASIS TO BE REVEALED TO THE MEMBERS OF THE PUBLIC, WHO ARE ENTITLED
TO KNOW WHAT INVENTION IS CLAIMED.  THAT IS NOT ACCOMPLISHED EITHER BY
NAMING A MEMBER HAVING INHERENT ANTITHETICAL PROPERTIES OR BY ASCRIBING
TO IT ONE PROPERTY WHEN THE OTHER IS MEANT.  SINCE RIGIDITY IS A
RELATIVE TERM, THE CHARACTERIZATION OF THE STRUCTURE AS RIGID MUST BE
TAKEN AS EMPHASIZING RIGIDITY RATHER THAN ITS OPPOSITE, FLEXIBILITY,
WITH SPECIAL REFERENCE TO THE CONDITIONS TO BE ENCOUNTERED IN THE
OPERATION OF THE PISTON.  EVEN IF THOSE SKILLED IN THE ART WOULD HAVE
KNOWN THAT A PISTON WITH WEBS WHICH WOULD YIELD ENOUGH LATERALLY TO
ACCOMMODATE THE CONSTRICTION OF THE SPLIT SKIRT UNDER THE PRESSURE
DEVELOPED BY THERMAL EXPANSION WOULD WORK MOST EFFECTIVELY IF THE WEBS
WERE LATERALLY FLEXIBLE RATHER THAN RIGID, THAT WAS NOT THE INVENTION
WHICH GULICK DESCRIBED BY HIS REFERENCES TO AN EXTREMELY RIGID WEB. 

GULICK ALSO FAILED TO EXPLAIN THE PRINCIPLE OF HIS MACHINE SO AS TO
DISTINGUISH IT FROM THE PRIOR ART. WEBS HAVING THE INHERENT PROPERTIES
BOTH OF RIGIDITY AND FLEXIBILITY WERE FAMILIAR ELEMENTS IN PISTON
STRUCTURE.  THE COURT BELOW, AFTER POINTING OUT THAT THE SLOTS OF THE
FRANQUIST SKIRT RENDERED IT CAPABLE OF LIMITED CONSTRICTION, FOUND A
DISTINGUISHING FEATURE OF GULICK'S PISTON TO BE A WEB RELATIVELY
FLEXIBLE LATERALLY, SO AS TO ACCOMMODATE THE CONSTRICTION OF SKIRT TO
THERMAL EXPANSION, THE COMBINATION OPERATING TO SECURE A "BALANCED
FLEXIBILITY" OF THE SKIRT.  BUT THAT PRINCIPLE - FACILITATING SKIRT
CONSTRICTION RATHER THAN OBSTRUCTING IT - WAS FIRST EXPLAINED AND ITS
EMBODIMENT IN THE FLEXIBLE-WEBBED DEVICE WAS FIRST CLAIMED BY THE
AMENDMENTS TO THE APPLICATION. 

AS ALREADY INDICATED, THE OMISSION FROM THE SPECIFICATIONS WAS NOT
SUPPLIED BY THE DRAWINGS, WHICH FAILED TO DISCLOSE BY DIMENSIONS THE
PROPORTIONS OF THE WEBS.  INHERENT FLEXIBILITY OF THE WEB IN
COOPERATION WITH THE SLIT SKIRT CANNOT BE DEPENDED UPON TO PRODUCE THE
DESIRED EFFECT IN RENDERING THE SKIRT YIELDABLE IN RESPONSE TO CYLINDER
WALL PRESSURE.  AS RESPONDENT'S OWN EXPERT TESTIFIED, THAT DEPENDS UPON
DESIGN OF THE WEB, WITH CORRECT PROPORTIONING OF THE DIFFERENT PARTS AS
TO LOCATION AND THICKNESS TO PRODUCE LATERAL FLEXIBILITY.  INHERENT
RIGIDITY, MADE MORE EFFECTIVE BY DESIGN OF THE WEBS, WOULD
CORRESPONDINGLY CURTAIL THE DESIRED EFFECT. 

WE RECOGNIZE THE WEIGHT TO BE ATTACHED TO THE DETERMINATIONS IN THE
INTERFERENCE PROCEEDINGS IN WHICH THE COURT OF APPEALS OF THE DISTRICT
OF COLUMBIA AND THE COURT OF CUSTOMS AND PATENT APPEALS SUSTAINED THE
GULICK AMENDMENTS.  CF. RADIO CORPORATION V. RADIO LABORATORIES, 293
U.S. 1, 7.  BUT THE DECISIONS IN THOSE CASES ARE NOT CONTROLLING HERE. 
SO FAR AS THE COURTS RELIED ON THE INHERENT FLEXIBILITY OF THE WEBS TO
SUPPLY THE FEATURE OF LATERAL FLEXIBILITY OMITTED FROM THE GULICK
DESCRIPTION THEY IGNORED THE PRINCIPLE RECOGNIZED IN PERMUTIT CO. V.
GRAVER CORPORATION, SUPRA, AND POWERS-KENNEDY CORP. V. CONCRETE CO.,
SUPRA.  SO FAR AS THEY RELIED ON THE DRAWINGS TO SUPPLY THE OMISSION
THEY DISREGARDED THE FACT SHOWN BOTH BY INSPECTION AND BY THE EVIDENCE
PRESENTED HERE THAT THE DRAWINGS DO NO MORE TO POINT TO GULICK'S
INVENTION THAN DOES THE FACT OF INHERENT FLEXIBILITY.  WE CONCLUDE THAT
RESPONDENT CAN TAKE NO BENEFIT FROM THE FLEXIBLE WEB ELEMENT ADDED BY
AMENDMENT TO THE GULICK APPLICATION. 

IN SUSTAINING THE CLAIMS OF THE MAYNARD PATENT THE COURT BELOW SAID
THAT "MAYNARD  ...  EMBODIES THE GULICK COMBINATION OF SKIRT
INSULATION, SKIRT FLEXIBILITY BY MEANS OF VERTICAL SLOTTING COOPERATING
WITH LONGITUDINAL SLOTTING, AND FLEXIBLE WEBS IN THE REGION OF THE
WRIST PIN BOSSES.  HE ALSO FOLLOWS JARDINE'S SIMPLIFIED DESIGN TO
PERMIT ECONOMICAL MANUFACTURE AND JARDINE'S BOSS RELIEF," AND AFTER
ENUMERATING CERTAIN MECHANICAL FEATURES OF THE MAYNARD CONSTRUCTION
DIFFERING FROM GULICK AND JARDINE, CONCLUDED:  "IT IS CLEAR THAT
MAYNARD, WHILE NOT DEPARTING FROM THE TEACHING OF GULICK IN BASIC
COMBINATION OF ELEMENTS, DISCLOSES A PISTON LIGHTER AND MORE ECONOMICAL
OF MANUFACTURE THAN GULICK AND ONE MORE RUGGED AND DURABLE THAN
JARDINE."  92 F.2D, AT 337. 

INVENTION OVER GULICK AND JARDINE WAS APPARENTLY FOUND IN THE DETAILS
OF CONSTRUCTION BUT, AS WE ARE WITHOUT OTHER INDICATION OF THE
CHARACTER OF THE INVENTION, WE CONSTRUE THE COURT'S OPINION AS
INCLUDING THE LATERALLY FLEXIBLE WEBS AS AN ESSENTIAL ELEMENT IN THE
PATENTED COMBINATION.  AS FLEXIBLE WEBS ARE NEITHER DESCRIBED IN
MAYNARD'S SPECIFICATIONS NOR MENTIONED IN HIS CLAIMS, THEY CAN BE
IMPORTED INTO THEM ONLY BY REFERENCE TO THE DRAWINGS OR BY INFERENCE
FROM THE INHERENT FLEXIBILITY OF THE STRUCTURE, WHICH, FOR REASONS
ALREADY GIVEN IN OUR CONSIDERATION OF THE GULICK AMENDMENTS, ARE
INSUFFICIENT TO ACCOMPLISH THAT RESULT.  WE CONCLUDE THAT THE COURT
BELOW ERRED IN GIVING ANY EFFECT TO SO MUCH OF THE GULICK PATENT AS BY
AMENDMENT DESCRIBES OR CLAIMS THE FLEXIBLE WEBS, AND IN TREATING ANY OF
THE SPECIFICATIONS OR CLAIMS IN GULICK AND MAYNARD AS REFERRING TO SUCH
WEBS.  WE ASSUME THAT IT SUSTAINED CLAIM 1 OF THE GULICK PATENT, WHICH
MAKES NO MENTION OF WEB FLEXIBILITY, ONLY BY READING INTO IT THAT
ELEMENT, WHICH THE COURT REGARDED AS AN ESSENTIAL PART OF THE
INVENTION. 

AS THE COURT OF APPEALS DID NOT PASS UPON OTHER QUESTIONS IN THE
CASE, THE CAUSES WILL BE REVERSED AND REMANDED TO IT FOR FURTHER
PROCEEDINGS, IN CONFORMITY WITH THIS OPINION, WITH RESPECT TO SUCH
CLAIMS OF THE PATENTS IN SUIT AS APPELLANT BELOW SUBMITTED TO THAT
COURT FOR ADJUDICATION.  REVERSED. 

FN1  THE DECREE SUSTAINED GULICK'S CLAIMS NUMBERED 1, 11, 12, 13, 15,
18, 30 AND 33, AND MAYNARD'S CLAIMS NUMBERED 1, 6 AND 8. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











STAHMANN V. VIDAL, 305 U.S. 61 


NO. 12.  ARGUED OCTOBER 12, 13, 1938.  - DECIDED NOVEMBER 7, 1938.  - 93
F.2D 902, REVERSED. 


1.  THE PURPOSE OF THE BANKHEAD COTTON ACT (APRIL 21, 1934; REPEALED
BY ACT OF FEB. 10, 1936) WAS TO RESTRICT THE PRODUCTION OF COTTON AND,
TO THAT END, TO LEVY A HEAVY TAX IN RESPECT OF THAT PRODUCED IN EXCESS
OF THE FARMER'S QUOTA.  THE BURDEN WAS TO FALL UPON THE PRODUCER.  THE
ASSESSMENT OF THE TAX AGAINST THE GINNER WAS INTENDED TO IMMOBILIZE THE
COTTON IN HIS POSSESSION UNTIL THE PRODUCER SHOULD LIQUIDATE THE TAX. 
P. 65. 

2.  WHERE A COLLECTOR, AS REQUIRED BY THIS ACT, ASSESSED A TAX ON
EXCESS COTTON AGAINST THE GINNER; AND THE PRODUCER, IN ORDER TO POSSESS
HIMSELF OF THE COTTON, PAID THE TAX TO THE COLLECTOR, HELD THAT HE HAD
STANDING, UNDER R.S. SEC. 3226, AS AMENDED BY THE ACT OF JUNE 6, 1932,
SEC. 1103, TO MAINTAIN AN ACTION AGAINST THE COLLECTOR, FOR RECOVERY OF
THE AMOUNT PLUS INTEREST, BASED UPON THE CLAIM THAT THE BANKHEAD ACT
WAS UNCONSTITUTIONAL.  P. 63. 

STAHMANN ET AL., DOING BUSINESS AS STAHMANN FARMS CO., V. VIDAL,
COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 304 U.S. 552, TO REVIEW THE REVERSAL OF A JUDGMENT FOR A
TAX, RECOVERED BY THE TAXPAYER IN THE DISTRICT COURT, IN A CASE TRIED
WITHOUT A JURY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE ARE TO DECIDE WHETHER THE PETITIONERS MAY MAINTAIN AN ACTION TO
RECOVER FROM A COLLECTOR OF INTERNAL REVENUE SUMS PAID BY THEM AS TAXES
ASSESSED UNDER THE BANKHEAD COTTON ACT.  FN1 

DURING THE CROP YEAR 1934-1935 THE PETITIONERS WERE ENGAGED IN
GROWING COTTON AND PRODUCED A QUANTITY IN EXCESS OF THE ALLOTMENT FOR
WHICH, UNDER THE TERMS OF THE ACT, THEY WERE ENTITLED TO OBTAIN TAX
EXEMPTION CERTIFICATES.  PETITIONERS DELIVERED THE EXCESS COTTON TO
SANTO TOMAS GIN COMPANY, WHICH GINNED IT AND FILED RETURNS WITH THE
RESPONDENT, AS COLLECTOR, SHOWING A TAX OF SOME $13,000 DUE ON THE
GINNING.  THE RESPONDENT, AS DIRECTED BY THE ACT, ASSESSED THE TAX
AGAINST THE GIN COMPANY.  THE LATTER REFUSED TO DELIVER THE COTTON TO
THE PETITIONERS UNTIL THE TAX WAS PAID, AND TO OBTAIN THEIR COTTON THE
PETITIONERS, IN NOVEMBER 1934 AND JANUARY 1935, PAID THE TAX TO THE
RESPONDENT.  MARCH 6, 1935 THEY PRESENTED A CLAIM FOR REFUND, WHICH WAS
REJECTED BY THE COMMISSIONER OF INTERNAL REVENUE AUGUST 22, 1935.  SUIT
WAS BROUGHT AGAINST THE RESPONDENT MAY 5, 1936, TO RECOVER THE AMOUNT
PAID WITH INTEREST, THE PETITIONERS ALLEGING THAT THE BANKHEAD ACT WAS
UNCONSTITUTIONAL.  THIS THE ANSWER DENIED, AND SET UP THE FURTHER
DEFENSE THAT, UNDER THE ACT, THE PETITIONERS WERE NOT LIABLE FOR THE
TAX, ANY PAYMENT THEY HAD MADE WAS IN DISCHARGE OF A LIABILITY IMPOSED
BY THE ACT ON THE GIN COMPANY, AND, CONSEQUENTLY, THEY WERE NOT
ENTITLED TO MAINTAIN THE ACTION. 

THE DISTRICT COURT, A JURY HAVING BEEN WAIVED, HELD THAT THE ACT WAS
UNCONSTITUTIONAL, THAT THE PETITIONERS COULD MAINTAIN THE ACTION, AND
GAVE JUDGMENT FOR THEM.  THE CIRCUIT COURT OF APPEALS REFUSED TO PASS
UPON THE CONSTITUTIONAL QUESTION, AS IT WAS OF OPINION THAT THE TRIAL
COURT ERRED IN SUSTAINING THE PETITIONERS' STANDING, AND REVERSED THE
JUDGMENT.  FN2  ON ACCOUNT OF THE IMPORTANCE OF THE CASE WE GRANTED
CERTIORARI, LIMITED, HOWEVER, TO THE QUESTION WHETHER THE PETITIONERS
WERE THE PROPER PARTIES TO MAINTAIN THE ACTION. 

WHICH A PROCEEDING MIGHT BE MAINTAINED FOR THE RECOVERY OF ANY SUM
ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED
UNDER ITS TERMS.  THE ACT WAS REPEALED FEBRUARY 10, 1936,  FN4  PRIOR
TO THE INSTITUTION OF THE INSTANT ACTION.  THE PETITIONERS WERE
THEREFORE REMITTED FOR RECOVERY OF THE SUM DEMANDED TO R.S. 3226, AS
AMENDED BY THE ACT OF JUNE 6, 1932, SEC. 1103.  FN5  AS THEREBY
REQUIRED, THEY TIMELY FILED A CLAIM FOR REFUND, WHICH WAS DENIED, AND
TIMELY BROUGHT THEIR ACTION.  UNDER THIS SECTION IT IS UNNECESSARY TO
PLEAD OR PROVE THAT THE TAX WAS PAID UNDER PROTEST OR ITS COLLECTION
WAS ACCOMPLISHED BY DURESS. 

THE SOLE QUESTION FOR DECISION IS WHETHER THE PETITIONERS VOLUNTARILY
PAID SOMEONE'S ELSE TAX.  IF THEY DID THEY MAY NOT MAINTAIN THE
ACTION.  FN6 

THE RESPONDENT INSISTS THAT, BY THE TERMS OF THE ACT, THE TAX IS
IMPOSED UPON THE GINNER AND NOT UPON THE PRODUCER.  THE PETITIONERS, ON
THE OTHER HAND, POINT TO THE PROVISIONS OF THE ACT WHICH MAKE THE LEVY
OF THE TAX DEPENDENT UPON THE VOTE OF COTTON PRODUCERS AND NOT UPON ANY
ACT OF THE GINNERS; WHICH BASE EXEMPTIONS FROM THE TAX UPON THE TIME,
MANNER, AND CHARACTER OF PRODUCTION AND NOT UPON THE TIME, MANNER, OR
CHARACTER OF GINNING; WHICH GRANT EXEMPTIONS TO PRODUCERS, NOT TO
GINNERS; WHICH CONDITION EXEMPTIONS UPON THE PRODUCERS MEETING CERTAIN
CONDITIONS AND LIMITATIONS; AND WHICH FIX QUOTAS FOR EXEMPTIONS TO
PRODUCERS.  THEY SAY CONGRESS NEVER INTENDED THE GINNER SHOULD BEAR THE
TAX, SINCE THE ACT PROVIDES THAT HE IS TO BE REIMBURSED UP TO TWENTY
FIVE CENTS PER BALE FOR ADDITIONAL EXPENSE INCURRED BY HIM IN
CONNECTION WITH THE ADMINISTRATION OF THE ACT.  THEY ASSERT THAT THE
RESPONDENT'S CONTENTION THAT THE TAX IS UPON THE GINNING OF THE COTTON
IS NEGATIVED BY THE FACT THAT IT IS NOT ASSESSED UPON ALL COTTON GINNED
REGARDLESS OF THE AMOUNT PRODUCED BY THE OWNER OF THE PARTICULAR FARM,
AND THAT IT AMOUNTS PER BALE TO APPROXIMATELY FIVE TIMES THE AMOUNT OF
THE CUSTOMARY CHARGE FOR GINNING.  THEY CALL ESPECIAL ATTENTION TO
THOSE SECTIONS OF THE ACT WHICH IMPOSE A LIEN FOR THE TAX UPON THE
COTTON IF IT IS REMOVED FROM THE GIN, FORBID TRANSPORTATION OF THE
COTTON,  - THE PRODUCERS' PROPERTY,  - BEYOND THE COUNTY WHERE
PRODUCED, EXCEPT FOR STORAGE, AND PROHIBIT OPENING OF THE BALE OR SALE
OF THE COTTON UNTIL THE TAX SHALL HAVE BEEN PAID.  THEY SAY IT IS
OBVIOUS THE STATUTE MADE THE GINNER A CONVENIENT COLLECTING AGENT TO
ENFORCE PAYMENT OF THE TAX AND THAT THE PURPOSE WAS TO FORCE THE FARMER
TO PAY BY PROHIBITING HIS USE OF HIS EXCESS COTTON UNLESS AND UNTIL HE
PAID; AND THE LATTER IS, THEREFORE, ENTITLED TO MAINTAIN AN ACTION FOR
THE REFUND OF THE TAX IF IT WAS ILLEGALLY COLLECTED. 

WE HOLD THAT THE PETITIONERS ARE ENTITLED TO MAINTAIN THE ACTION. 
THE PURPOSE OF THE BANKHEAD ACT WAS TO RESTRICT THE PRODUCTION OF
COTTON AND, TO THAT END, TO LEVY A HEAVY TAX IN RESPECT OF THAT
PRODUCED IN EXCESS OF THE FARMER'S QUOTA.  THE TAX BORE NO RELATION TO
THE GINNING OF COTTON.  ON THE CONTRARY, IT WAS INTENDED TO FALL, AND
THE ACT ATTEMPTED TO MAKE IT FALL, UPON THE PRODUCERS.  THE ASSESSMENT
OF THE TAX AGAINST THE GINNER WAS INTENDED TO IMMOBILIZE THE COTTON IN
HIS POSSESSION UNTIL THE PRODUCER SHOULD LIQUIDATE THE TAX.  THIS IS
EVIDENT FROM THE PROVISIONS WHICH IMPOSE A LIEN UPON THE COTTON FOR THE
AMOUNT OF THE TAX UPON REMOVAL OF IT FROM THE GIN WITHOUT PAYMENT OF
THE TAX, AND, WHILE PERMITTING IT TO BE STORED BY THE PRODUCER, FORBID
THE OPENING OF A BALE OR THE SALE OF IT UNTIL THE TAX LIABILITY SHALL
HAVE BEEN DISCHARGED.  PLAINLY THE PURPOSE WAS THAT IF THE GINNER
SHOULD RELEASE THE COTTON TO THE PRODUCER WHILE THE TAX REMAINED UNPAID
THE LIEN UPON IT WOULD INSURE PAYMENT BY THE PRODUCER. 

THE SCHEME OF THE ACT SETS THE CASE APART FROM ANY TO WHICH OUR
ATTENTION HAS BEEN CALLED ARISING UNDER OTHER TAXING ACTS.  THE
COLLECTOR WAS PART OF THE MACHINERY FOR COMPELLING THE FARMER TO PAY
THE TAX, FOR IMMOBILIZING THE COTTON AND MAKING IT UNUSABLE UNTIL THE
ASSESSMENT HE HAD MADE AGAINST THE GINNER WAS SATISFIED BY PAYMENT OF
THE TAX.  WHETHER OR NOT THE TAX WAS IMPOSED UPON THE PETITIONERS, THEY
ARE, ACCORDING TO ACCEPTED PRINCIPLES, ENTITLED TO RECOVER UNLESS THEY
WERE VOLUNTEERS, WHICH THEY PLAINLY WERE NOT BECAUSE THEY PAID THE TAX
UNDER DURESS OF GOODS. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  ACT OF APRIL 21, 1934, C. 157, 48 STAT. 598. 

FN2  93 F.2D 902. 

FN3  48 STAT. 606. 

FN4  49 STAT. 1106. 

FN5  47 STAT. 169, 286; U.S.C. TIT. 26, SECS. 1672-1673. 

FN6  COMPARE WOURDACK V. BECKER, 55 F.2D 840; CLIFT & GOODRICH V.
UNITED STATES, 56 F.2D 751; OHIO LOCOMOTIVE CRANE CO. V. DENMAN, 73
F.2D 408; CENTRAL AGUIRRE SUGAR CO. V. UNITED STATES, 2 F.SUPP.  538;
COMBINED INDUSTRIES, INC. V. UNITED STATES, 15 F.SUPP.  349. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





SOVEREIGN CAMP V. BOLIN, 305 U.S. 66 


NO. 31.  ARGUED OCTOBER 21, 1938.  - DECIDED NOVEMBER 7, 1938.  - 112
S.W.2D 582, 592, REVERSED. 


1.  A FRATERNAL BENEFICIARY ASSOCIATION OF NEBRASKA ISSUED AND
DELIVERED IN MISSOURI A CERTIFICATE OF MEMBERSHIP REQUIRING THE MEMBER
TO PAY DUES AND ASSESSMENTS AND PROVIDING FOR BENEFITS TO ACCRUE UPON
HIS DEATH.  PURSUANT TO A BY-LAW OF THE ASSOCIATION, THE CERTIFICATE
PURPORTED TO EXEMPT THE MEMBER FROM FURTHER DUES AND ASSESSMENTS AFTER
TWENTY YEARS; BUT THIS EXEMPTION WAS AFTERWARDS ADJUDGED BY THE SUPREME
COURT OF NEBRASKA, IN A CLASS SUIT BROUGHT BY THE HOLDER OF A SIMILAR
CERTIFICATE, TO BE ULTRA VIRES AND VOID.  IN AN ACTION IN MISSOURI BY
BENEFICIARIES NAMED IN THE CERTIFICATE FIRST-MENTIONED, HELD: 

(1)  THAT THE CERTIFICATE WAS NOT A MERE CONTRACT TO BE CONSTRUED AND
ENFORCED ACCORDING TO THE LAWS OF THE STATE WHERE IT WAS DELIVERED. 
ENTRY INTO THE SOCIETY WAS ENTRY INTO A COMPLEX AND ABIDING RELATION
AND THE RIGHTS OF MEMBERSHIP ARE GOVERNED BY THE LAW OF THE STATE OF
INCORPORATION.  ANOTHER STATE, WHEREIN THE CERTIFICATE OF MEMBERSHIP
WAS ISSUED, CAN NOT ATTACH TO MEMBERSHIP, RIGHTS AGAINST THE SOCIETY
WHICH ARE REFUSED BY THE LAW OF THE DOMICIL.  P. 75. 

(2)  THE QUESTION WHETHER THE ASSOCIATION WAS ESTOPPED TO PLEAD ULTRA
VIRES WAS NOT TO BE DETERMINED BY THE MISSOURI LAW OF OLD LINE
INSURANCE COMPANIES.  P. 76. 

(3)  THE JUDGMENT OF THE NEBRASKA COURT, IN THE CLASS SUIT,
DETERMINED THAT THE ASSOCIATION LACKED POWER TO ISSUE CERTIFICATES
EXEMPT FROM DUES AND ASSESSMENTS AFTER TWENTY YEARS, AND THAT IT WAS
NOT ESTOPPED TO PLEAD ULTRA VIRES IN THAT REGARD.  P. 78. 

(4)  THE MISSOURI COURT, BY ENFORCING THE CERTIFICATE, FAILED TO GIVE
FULL FAITH AND CREDIT TO THE ASSOCIATION'S CHARTER EMBODIED IN THE
STATUTES OF NEBRASKA AS INTERPRETED BY ITS HIGHEST COURT.  P. 79. 

2.  IN A CLASS SUIT BY A MEMBER OF A BENEFICIARY ASSOCIATION TO
DETERMINE THE POWER OF THE ASSOCIATION TO ISSUE BENEFICIAL MEMBERSHIP
CERTIFICATES EXEMPT FROM DUES AND ASSESSMENTS AFTER TWENTY YEARS, THE
ASSOCIATION REPRESENTS ALL ITS MEMBERS AND STANDS IN JUDGMENT FOR THEM,
AND THE JUDGMENT IS CONCLUSIVE UPON ALL THE MEMBERS OF THE ASSOCIATION
WITH RESPECT TO ALL RIGHTS, QUESTIONS, OR FACTS THEREIN DETERMINED.  P.
78. 

SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD V. BOLIN ET AL. 

CERTIORARI TO THE KANSAS CITY COURT OF APPEALS OF MISSOURI. 

CERTIORARI, 304 U.S. 557, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE PRESENT PETITIONER IN AN ACTION ON A FRATERNAL BENEFICIAL
CERTIFICATE.  THE SUPREME COURT OF THE STATE WOULD NOT ENTERTAIN AN
APPEAL. 

(A)  THE RELATIVE RIGHTS AND DUTIES OF PETITIONER AND RESPONDENTS
UNDER THE BENEFICIARY CERTIFICATE MUST BE DETERMINED BY APPLICATION OF
THE LAWS OF THE STATE OF NEBRASKA, NOTWITHSTANDING THE FACT THAT THE
CERTIFICATE WAS ISSUED AND ACCEPTED AND THE DUES WERE PAID IN THE STATE
OF MISSOURI. 

(B)  THE JUDGMENT OF THE SUPREME COURT OF NEBRASKA WAS A FINAL, VALID
ADJUDICATION THAT, UNDER PETITIONER'S CHARTER, THE BY-LAW AND THE
LIMITED PAYMENT PROVISIONS OF THE BENEFICIARY CERTIFICATES ISSUED
PURSUANT TO SAID BY-LAW WERE ULTRA VIRES OF PETITIONER AND INVALID, AND
THAT PETITIONER IS NOT ESTOPPED TO ASSERT THEIR INVALIDITY IN A SUIT
BASED UPON SAID BY-LAW TO ENFORCE THE LIMITED PAYMENT FEATURES OF THE
BENEFICIARY CERTIFICATE.  TRAPP V. SOVEREIGN CAMP OF THE WOODMEN OF THE
WORLD, 102 NEB. 562; HANER V. GRAND LODGE, A.O.U.W., 102 NEB. 563. 

(C)  THE JUDGMENT OF THE SUPREME COURT OF NEBRASKA HAVING BEEN
RENDERED IN A SUIT BROUGHT FOR THE BENEFIT OF A CLASS TO WHICH PLEASANT
BOLIN BELONGED, AND BEING A FINAL ADJUDICATION OF A CONTROVERSY AS TO
WHICH PETITIONER COULD STAND IN JUDGMENT FOR ITS MEMBERS, IS RES
JUDICATA AND BINDING UPON RESPONDENTS, AND SHOULD HAVE BEEN ACCORDED
FULL FAITH AND CREDIT IN THE COURT BELOW.  SMITH V. SWORMSTEDT, 16
HOW.  288; BERNHEIMER V. CONVERSE, 206 U.S. 516; CONVERSE V. HAMILTON,
224 U.S. 243; SELIG V. HAMILTON, 234 U.S. 652; BRODERICK V. ROSNER, 294
U.S. 629; PARKER V. LUEHRMANN, 126 NEB. 1; SUPREME COUNCIL OF THE ROYAL
ARCANUM V. GREEN, 237 U.S. 531; HARTFORD LIFE INS. CO. V. IBS, 237 U.S.
662; HARTFORD LIFE INS. CO. V. BARBER, 245 U.S. 146. 

(D)  IF THE NEBRASKA JUDGMENT IS NOT CONSIDERED RES JUDICATA AND
BINDING UPON RESPONDENTS IN A PERSONAL SENSE, IT NEVERTHELESS ANNOUNCES
THE LEGAL SIGNIFICANCE OF PETITIONER'S CHARTER UNDER THE LAWS OF
NEBRASKA; AND THE CHARTER, AS THUS INTERPRETED, WAS ENTITLED TO FULL
FAITH AND CREDIT IN THE COURT BELOW. 

(E)  THE DECISION OF THE COURT BELOW ON THE QUESTION OF ESTOPPEL WAS,
OF ITSELF, A DENIAL OF FULL FAITH AND CREDIT TO PETITIONER'S CHARTER
AND THE NEBRASKA JUDGMENT BECAUSE (1) THE DECISION WAS REACHED BY
APPLICATION OF THE LAWS OF MISSOURI INSTEAD OF THE LAWS OF NEBRASKA;
AND (2) THE ISSUE OF ESTOPPEL WAS FINALLY ADJUDICATED BY THE NEBRASKA
JUDGMENT IN FAVOR OF PETITIONER. 

(F)  THE OPINION OF THE SUPREME COURT OF NEBRASKA WAS THE
CONSTRUCTION OF A FRATERNAL CHARTER.  IT HELD THAT UNDER SAID CHARTER
THE BY-LAW AND THE "PAYMENTS TO CEASE" CLAUSE WERE ULTRA VIRES AND
VOID.  IT ALSO HELD THAT THE PLEA OF ESTOPPEL WAS NOT AVAILABLE.  IT
IS, THEREFORE, WHOLLY IMMATERIAL WHETHER UNDER THE MISSOURI LAW THE
CERTIFICATE IS LABELED FRATERNAL OR "OLD LINE."  IF THE CONSTITUTIONAL
QUESTION IS PRESENT, THE PLEA OF ESTOPPEL, UNDER THE MISSOURI LAW, MUST
BE ABSENT.  THE FACT THAT NO LICENSE WAS REQUIRED OF THE ASSOCIATION IN
MISSOURI AT THE TIME WHEN THE CERTIFICATE WAS WRITTEN IN NO SENSE
AFFECTS THE CONSTITUTIONAL MANDATE.  CANADA SOUTHERN RAILROAD V.
GEBHARD, 109 U.S. 527, 537. 

(G)  APPLICATION OF THE MISSOURI INSURANCE LAWS BY THE COURT BELOW
CHANGED AND IMPAIRED THE SUBSTANTIVE RIGHTS OF PETITIONER ESTABLISHED
BY THE LAWS OF NEBRASKA, AND ITS CHARTER; AND THEY AND THE NEBRASKA
JUDGMENT WERE DENIED THE CREDIT, VALIDITY AND EFFECT TO WHICH THEY WERE
ENTITLED UNDER THE FULL FAITH AND CREDIT PROVISION OF THE
CONSTITUTION. 

THE JUDGMENT OF THE STATE COURT RESTS UPON AT LEAST FOUR INDEPENDENT
GROUNDS NOT INVOLVING A FEDERAL QUESTION AND EACH OF WHICH IS ADEQUATE
TO SUPPORT THE JUDGMENT.  THEREFORE, THIS COURT IS WITHOUT JURISDICTION
AND THE WRIT OF CERTIORARI SHOULD BE DISMISSED. 

(A)  A DECISION OF THE STATE COURT BASED UPON AN ESTOPPEL DOES NOT
PRESENT A FEDERAL QUESTION. 

(B)  THE PROPOSITION THAT THE CERTIFICATE WAS SUBJECT TO THE GENERAL
INSURANCE LAWS OF MISSOURI, FOR THE REASON THAT WHEN IT WAS ISSUED, THE
CORPORATION WAS NOT LICENSED IN MISSOURI, NOT HAVING COMPLIED WITH THE
FRATERNAL BENEFICIARY LAWS, WAS A QUESTION OF LOCAL LAW ADEQUATE TO
SUPPORT THE JUDGMENT, BECAUSE THE POWER OF A STATE OVER FOREIGN
CORPORATIONS DOING BUSINESS THEREIN IS EQUAL TO ITS POWER OVER DOMESTIC
CORPORATIONS. 

(C)  THE CERTIFICATE WAS DELIVERED TO AND ACCEPTED BY THE INSURED IN
THE STATE OF MISSOURI.  HE PAID ALL OF THE DUES AND ASSESSMENTS IN
MISSOURI.  THIS MAKES IT A MISSOURI CONTRACT TO WHICH THE LAWS OF
MISSOURI APPLY AND BY THE LAWS OF WHICH IT IS GOVERNED; AND THE ISSUES
CONCERNING IT ARE TO BE ADJUDICATED IN ACCORDANCE WITH THE LAWS OF
MISSOURI.  NEW YORK LIFE INS. CO. V. CRAVENS, 178 U.S. 389; MUTUAL LIFE
INS. CO. V. JOHNSON, 293 U.S. 335; NORTHWESTERN MUTUAL LIFE INS. CO. V.
MCCUE, 223 U.S. 234; EQUITABLE LIFE ASSURANCE SOCIETY V. PETTUS, 140
U.S. 226; RAGSDALE V. BROTHERHOOD OF RAILROAD TRAINMEN, 229 MO. APP.
545; 80 S.W.2D 272; JOHNSON V. AMERICAN CENTRAL LIFE INS. CO., 212 MO.
APP. 290; 249 S.W. 115; GRANT V. NORTH AMERICAN BENEFIT CORP., 223 MO.
APP. 104; 8 S.W.2D 1043; WEED V. BANK SAVINGS LIFE INS. CO., 24 S.W.2D
653; CROHN V. UNITED COMMERCIAL TRAVELERS, 170 MO. APP. 273. 

(D)  THE CERTIFICATE, BEING A MISSOURI CONTRACT, THE CONTRACT RIGHTS
THEREIN PROVIDED COULD NOT BE MATERIALLY CHANGED BY SO-CALLED BY-LAWS
SUBSEQUENTLY ENACTED BY THE COMPANY, OR BY THE LAWS OF MISSOURI OR ANY
OTHER STATE. 

THE TRAPP CASE, RELIED ON BY PETITIONER, WAS NOT BINDING ON THE
COURTS OF MISSOURI IN THE INSTANT CASE. 

UNDER THE MISSOURI RULES OF PLEADING, THE DEFENSE OF RES JUDICATA MUST
BE PLEADED IN ORDER TO BE AVAILABLE. 

THE TRAPP SUIT WAS NOT BINDING AS A CLASS CASE ON THE RIGHTS OF BOLIN
AND HIS BENEFICIARIES. 

(A)  WHEN IT WAS FILED, NO RIGHT OF ACTION EXISTED ON THE BOLIN
POLICY, PAYMENTS THEREON NOT HAVING BEEN MADE FOR TWENTY YEARS. 

(B)  WHILE THE PETITION IN THE TRAPP CASE STATED THAT TRAPP BROUGHT
THE SUIT FOR HIMSELF AND OTHERS SIMILARLY SITUATED, THE PETITION DID
NOT ASK FOR RELIEF FOR ANYONE EXCEPT TRAPP; AND THE JUDGMENT DID NOT
PURPORT TO APPLY TO ANY OTHER PERSON. 

(C)  TRAPP DID NOT PLEAD OR ASSERT HIS RIGHTS UNDER THE LAWS OF
MISSOURI, THUS SEGREGATING HIMSELF FROM THE CLASS TO WHICH BOLIN
BELONGED. 

(D)  IN THE TRAPP CASE THERE WAS NO PLEA SUFFICIENT, UNDER THE
NEBRASKA LAW, TO RAISE THE ISSUE OF ESTOPPEL. 

(E)  THE TRAPP CASE WAS BASED MERELY ON A RESOLUTION OF PETITIONER'S
EXECUTIVE COUNCIL, PROVIDING FOR PAID-UP CERTIFICATES, AND THE
FRATERNAL INSURANCE LAWS OF NEBRASKA, WHEREAS THE BOLIN SUIT IS BASED
ON A CERTIFICATE OR POLICY OF INSURANCE ISSUED IN MISSOURI, GOVERNED BY
THE LAWS OF MISSOURI AND PROTECTED BY THE CONTRACT CLAUSE OF THE
FEDERAL CONSTITUTION. 

THERE WAS NO SHOWING THAT BOLIN ACQUIESCED IN THE TRAPP CASE, KNEW
ANYTHING ABOUT IT OR HAD ANYTHING TO DO WITH IT, AND THERE IS NO
SHOWING THAT THE RIGHTS UPON WHICH HE RELIED WERE IN ANY WAY
REPRESENTED OR ADJUDICATED IN THE TRAPP CASE. 

(F)  THERE WAS NO SHOWING IN THE RECORD OF THE TRAPP CASE THAT THE
RIGHTS OR INTERESTS OF ANY HOLDER OF A POLICY OR CERTIFICATE, UNDER THE
MISSOURI LAWS, WERE FAIRLY REPRESENTED OR PROTECTED; THAT ANY SUCH
CERTIFICATE HOLDER HAD ANY KNOWLEDGE OF THE SUIT OR ANY OPPORTUNITY TO
HAVE HIS INTERESTS FAIRLY PROTECTED OR REPRESENTED, OR KNEW ANYTHING
ABOUT THE TRAPP SUIT OR IN ANY MANNER ACQUIESCED THEREIN.  THEREFORE,
THE TRAPP CASE DID NOT MEET THE REQUIREMENTS OF A CLASS SUIT.  OLD
WAYNE MUTUAL LIFE ASSN. V. MCDONOUGH, 204 U.S. 8; AMERICAN SURETY CO.
V. BALDWIN, 287 U.S. 156. 

IF THE DECISION IN THE TRAPP CASE WERE APPLICABLE, IT IS IN VIOLATION
OF SEC. 10, ART. I, THE CONTRACT CLAUSE, OF THE CONSTITUTION OF THE
UNITED STATES IN THAT IT HOLDS A SUBSTANTIAL PROVISION OF AN INSURANCE
CONTRACT, TO-WIT, A PROVISION THAT PAYMENTS THEREON SHOULD CEASE IN
TWENTY YEARS, TO HAVE BEEN INVALIDATED BY A SUBSEQUENTLY ENACTED
STATUTE OF THE STATE OF NEBRASKA. 

THE AUTHORITIES CITED BY PETITIONER INVOLVE ONLY QUESTIONS OF
INTERNAL AFFAIRS OR BUSINESS MANAGEMENT OF THE SOCIETY OR CORPORATION,
AND QUESTIONS ARISING IN CORPORATE RECEIVERSHIPS OR SIMILAR
PROCEEDINGS.  NONE OF THEM INVOLVES THE CONSTRUCTION OR EFFECT OF A
CONTRACT BETWEEN THE CORPORATION ITSELF AND ANOTHER PARTY.  NONE OF
THEM INVOLVES THE ISSUE OF ESTOPPEL UNDER THE LAW OF THE FORUM. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WE GRANTED CERTIORARI BECAUSE OF THE CLAIM THAT THE JUDGMENT OF THE
COURT BELOW FAILED TO ACCORD FULL FAITH AND CREDIT TO THE PUBLIC ACTS,
RECORDS, AND JUDICIAL PROCEEDINGS OF THE STATE OF NEBRASKA AS REQUIRED
BY ARTICLE IV, SEC. 1 OF THE CONSTITUTION. 

THE PETITIONER IS A FRATERNAL BENEFICIARY ASSOCIATION ORGANIZED UNDER
THE LAWS OF NEBRASKA, HAVING A LODGE SYSTEM, A RITUALISTIC FORM OF
WORK, AND A REPRESENTATIVE FORM OF GOVERNMENT.  IT HAS NO CAPITAL
STOCK, AND TRANSACTS ITS AFFAIRS WITHOUT PROFIT AND SOLELY FOR THE
MUTUAL BENEFIT OF ITS MEMBERS AND THEIR BENEFICIARIES.  IT MAKES
PROVISION FOR THE PAYMENT OF DEATH BENEFITS BY ASSESSMENTS UPON ITS
MEMBERS AND ISSUES TO MEMBERS CERTIFICATES ASSURING PAYMENT OF SUCH
BENEFITS. 

IN 1895 THE PETITIONER ADOPTED A BY-LAW AUTHORIZING THE ISSUE OF LIFE
MEMBERSHIP CERTIFICATES.  UNDER THIS BY-LAW A MEMBER ENTERING THE ORDER
AT AN AGE GREATER THAN 43 YEARS WAS ENTITLED TO LIFE MEMBERSHIP WITHOUT
THE PAYMENT OF FURTHER DUES AND ASSESSMENTS WHEN THE CERTIFICATE HAD
BEEN OUTSTANDING 20 YEARS.  IN JUNE 1896, WHILE THE BY-LAW REMAINED
UNREPEALED, PLEASANT BOLIN, WHO WAS OVER 43 YEARS OF AGE, JOINED A
MISSOURI LODGE OF THE PETITIONER AND RECEIVED A CERTIFICATE OF
MEMBERSHIP WHICH RECITED THAT WHILE IN GOOD STANDING HE WOULD BE
ENTITLED TO PARTICIPATE IN THE BENEFICIAL FUND TO THE AMOUNT OF $1,000
PAYABLE TO HIS BENEFICIARIES AND TO THE SUM OF $100 FOR PLACING A
MONUMENT AT HIS GRAVE.  THE CERTIFICATE RECITED THAT IT WAS ISSUED
SUBJECT TO ALL THE CONDITIONS NAMED IN THE CONSTITUTION AND LAWS OF THE
FRATERNITY AND WAS ENDORSED WITH THE WORDS "PAYMENTS TO CEASE AFTER 20
YEARS." 

AFTER BOLIN'S DEATH, THE RESPONDENTS, AS BENEFICIARIES, BROUGHT
ACTION TO RECOVER UPON THE CERTIFICATE.  THE PETITIONER'S ANSWER SET UP
THAT BOLIN HAD CEASED TO PAY THE REQUIRED DUES AND ASSESSMENTS IN JULY
1916, AND HIS CERTIFICATE HAD THEREFORE BECOME VOID; THAT THE BY-LAW
MAKING THE CERTIFICATE FULLY PAID AFTER TWENTY YEARS WAS ULTRA VIRES OF
THE ASSOCIATION AND HAD BEEN SO DECLARED BY THE SUPREME COURT OF
NEBRASKA IN A CLASS SUIT BROUGHT BY ONE TRAPP, THE HOLDER OF A
CERTIFICATE SIMILAR TO THAT OF BOLIN; THAT, UNDER ARTICLE IV, SEC. 1,
OF THE CONSTITUTION, FULL FAITH AND CREDIT MUST BE GIVEN BY THE COURTS
OF MISSOURI TO THIS DECISION OF THE SUPREME COURT OF NEBRASKA.  THE
RESPONDENTS REPLIED THAT THE CONTRACT WAS MADE AND DELIVERED IN
MISSOURI AND WAS TO BE CONSTRUED AND ENFORCED ACCORDING TO MISSOURI
LAW; THAT, AT THE DATE OF ITS CONSUMMATION, THE PETITIONER HAD NO
LICENSE OR AUTHORITY TO TRANSACT BUSINESS IN MISSOURI AS A CORPORATION
OR OTHERWISE, AND THE CERTIFICATE WAS THEREFORE TO BE CONSIDERED AS
ISSUED PURSUANT TO, AND GOVERNED BY, THE GENERAL INSURANCE LAWS OF
MISSOURI; THAT BOLIN HAVING FULLY PERFORMED IN ACCORDANCE WITH THE
TERMS OF THE CERTIFICATE, THE PETITIONER WAS ESTOPPED TO PLEAD ULTRA
VIRES; AND THAT IN TRUTH THE CONTRACT WAS NOT ULTRA VIRES OF THE
PETITIONER. 

A JURY WAS WAIVED AND THE CASE WAS TRIED TO THE COURT.  THE
RESPONDENTS PROVED THE ISSUE OF THE CERTIFICATE AND BOLIN'S PAYMENTS
FOR TWENTY YEARS THEREAFTER.  THE PETITIONER PROVED THE ADOPTION OF THE
BY-LAW PURPORTING TO AUTHORIZE THE ISSUE OF "PAYMENTS TO CEASE"
CERTIFICATES; AND PUT IN EVIDENCE AN EXEMPLIFIED COPY OF THE RECORD IN
TRAPP V. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, 102 NEB. 562; 168
N.W. 191, WHEREIN IT WAS DECIDED THAT PETITIONER NEVER HAD POWER UNDER
THE LAW OF NEBRASKA TO ISSUE SUCH A CERTIFICATE.  JUDGMENT WENT FOR THE
RESPONDENTS.  THE PETITIONER APPEALED TO THE SUPREME COURT OF MISSOURI,
WHICH REMANDED THE CAUSE TO THE KANSAS CITY COURT OF APPEALS  FN1  ON
THE GROUND THAT IT INVOLVED NO CONSTITUTIONAL QUESTION.  THE LATTER
AFFIRMED THE JUDGMENT  FN2  AND ADHERED TO ITS DECISION ON REHEARING. 
FN3 

THE COURT BELOW BASED ITS DECISION ON THE FOLLOWING GROUNDS: 

UNDER THE LAW OF MISSOURI THE CERTIFICATE WAS A MISSOURI CONTRACT
BECAUSE IT WAS DELIVERED TO BOLIN IN MISSOURI AND HE MADE HIS PAYMENTS
THERE; ALL ISSUES RESPECTING RIGHTS ARISING OUT OF THE CONTRACT MUST,
THEREFORE, BE ADJUDICATED ACCORDING TO THE DECISIONS OF THE MISSOURI
COURTS.  THE QUESTION THEN ARISES WHAT SYSTEM OF LOCAL LAW IS
APPLICABLE,  - THAT RELATING TO FRATERNAL BENEFICIARY SOCIETIES OR THAT
APPLICABLE TO OLD LINE INSURANCE COMPANIES.  AT THE TIME THE CONTRACT
WAS MADE THERE WAS NO LOCAL STATUTE PROVIDING FOR THE LICENSING OF
FOREIGN FRATERNAL BENEFICIARY SOCIETIES.  UNDER THE DECISIONS OF THE
MISSOURI COURTS THE PETITIONER MUST, THEREFORE, BE DENIED THE
IMMUNITIES EXTENDED BY STATUTE TO DOMESTIC FRATERNAL BENEFICIARY
ASSOCIATIONS AND MUST BE TAKEN TO HAVE BEEN DOING BUSINESS IN MISSOURI
UNDER THE STATE'S GENERAL INSURANCE LAWS, AND THE CERTIFICATE MUST BE
REGARDED AS A CONTRACT OF GENERAL OR OLD LINE INSURANCE.  THIS
CONCLUSION IS NOT ALTERED BY THE NATURE OF THE SOCIETY GRANTING THE
INSURANCE BECAUSE THE CHARACTER OF THE INSURANCE, SO FAR AS MISSOURI IS
CONCERNED, DEPENDS ON THE TERMS OF THE CONTRACT ONLY.  WHATEVER MAY BE
THE CHARACTER OF THE PETITIONER IN THE EYE OF THE NEBRASKA LAW IT NEED
NOT HAVE THE SAME CHARACTER IN MISSOURI.  WHETHER IT IS A FRATERNAL
BENEFICIARY SOCIETY WHEN SUED IN MISSOURI IS A QUESTION OF LOCAL LAW. 
EVEN IF THE ISSUE OF THE CERTIFICATE BE AN ULTRA VIRES ACT UNDER THE
LAW OF NEBRASKA IT DOES NOT FOLLOW THAT IT IS SUCH UNDER THE LAW OF
MISSOURI.  THE CONTRACT IS NOT ULTRA VIRES UNDER THE LAW OF MISSOURI
OR, IF SO, THE PETITIONER MAY NOT PLEAD ULTRA VIRES BECAUSE, IN THE
LIGHT OF MISSOURI LAW, THE CONTRACT IS AN INSURANCE CONTRACT WITH AN
OLD LINE INSURANCE COMPANY AND THE PETITIONER, UNDER MISSOURI
DECISIONS, CANNOT, IN THE CIRCUMSTANCES DISCLOSED, AVAIL ITSELF OF THE
FACT THAT THE CONTRACT WAS IN EXCESS OF ITS CHARTER POWERS. 

THE COURT REFUSED TO GIVE FORCE OR EFFECT TO THE DECISION OF THE
SUPREME COURT OF NEBRASKA IN TRAPP V. WOODMEN, SUPRA, SAYING THAT CASE
DID NOT HOLD THE ISSUE OF SUCH A CERTIFICATE ULTRA VIRES IN THE SENSE
THAT IT WAS PROHIBITED BY POSITIVE STATUTE; THAT THE CONTRACT BEING A
MISSOURI CONTRACT ITS ULTRA VIRES CHARACTER MUST BE ADJUDGED BY THE
LOCAL LAW IRRESPECTIVE OF WHAT THE COURTS OF THE DOMICILE HAD HELD;
THAT THE RESPONDENTS IN THE PRESENT CASE RELIED ON AN ESTOPPEL OF THE
PETITIONER TO PLEAD ULTRA VIRES, WHEREAS NO SUCH ISSUE WAS PRESENTED OR
DECIDED IN THE TRAPP CASE. 

WE HOLD THAT THE JUDGMENT DENIED FULL FAITH AND CREDIT TO THE PUBLIC
ACTS, RECORDS, AND JUDICIAL PROCEEDINGS OF THE STATE OF NEBRASKA. 

FIRST.  THE BENEFICIARY CERTIFICATE WAS NOT A MERE CONTRACT TO BE
CONSTRUED AND ENFORCED ACCORDING TO THE LAWS OF THE STATE WHERE IT WAS
DELIVERED.  ENTRY INTO MEMBERSHIP OF AN INCORPORATED BENEFICIARY
SOCIETY IS MORE THAN A CONTRACT; IT IS ENTERING INTO A COMPLEX AND
ABIDING RELATION AND THE RIGHTS OF MEMBERSHIP ARE GOVERNED BY THE LAW
OF THE STATE OF INCORPORATION.  ANOTHER STATE, WHEREIN THE CERTIFICATE
OF MEMBERSHIP WAS ISSUED, CANNOT ATTACH TO MEMBERSHIP RIGHTS AGAINST
THE SOCIETY WHICH ARE REFUSED BY THE LAW OF THE DOMICILE.  FN4 

SECOND.  THE CIRCUMSTANCE THAT AT THE TIME THE CERTIFICATE WAS ISSUED
DOMESTIC FRATERNAL SOCIETIES WERE EXEMPTED FROM THE OPERATION OF THE
GENERAL INSURANCE LAW OF THE STATE, AND NO SIMILAR EXEMPTION WAS
EXTENDED TO FOREIGN SOCIETIES, CANNOT ENLARGE THE STATUTORY AND CHARTER
POWERS OF SUCH A FOREIGN SOCIETY.  THE FUNDAMENTAL ERROR OF THE COURT
BELOW SPRINGS FROM A MISAPPREHENSION OF THE EFFECT TO BE GIVEN TO THE
ABSENCE OF PROVISIONS EXEMPTING FOREIGN BENEFICIARY ASSOCIATIONS FROM
THE STATUTES APPLICABLE GENERALLY TO OLD LINE LIFE INSURANCE
COMPANIES.  MISSOURI HAS STATUTES AFFECTING THE VALIDITY AND
ENFORCIBILITY OF STIPULATIONS INSERTED IN LIFE INSURANCE POLICIES AND
OTHER STATUTES DEALING WITH PROCEDURE IN ACTIONS UPON SUCH POLICIES. 
IN 1879 A STATUTE WAS PASSED AUTHORIZING THE INCORPORATION OF FRATERNAL
BENEFICIARY SOCIETIES AND EXEMPTING THEM FROM THE OPERATION OF THE
GENERAL LAWS OF THE STATE IN RESPECT OF INSURANCE COMPANIES.  FN5  AN
ACT OF 1881 EXEMPTED BOTH DOMESTIC AND FOREIGN SOCIETIES FROM THE
OPERATION OF THE GENERAL INSURANCE LAWS.  FN6  THIS ACT DID NOT REQUIRE
THE REGISTRATION OF FOREIGN ASSOCIATIONS BUT ACCORDED THEM THE SAME
EXEMPTION AS DOMESTIC ASSOCIATIONS.  IN 1889 THE LEGISLATURE ADOPTED AN
ACT REVISING THE STATUTES DEALING WITH PRIVATE CORPORATIONS AND THEREIN
PROVIDED THAT DOMESTIC BENEFICIAL SOCIETIES SHOULD NOT BE SUBJECT TO
THE GENERAL INSURANCE LAWS OF THE STATE, BUT OMITTED ANY REFERENCE TO
FOREIGN ASSOCIATIONS.  FN7  IT WAS NOT UNTIL 1897 THAT FOREIGN
BENEFICIARY ASSOCIATIONS WERE REQUIRED, AS A CONDITION OF DOING
BUSINESS WITHIN THE STATE, TO REGISTER AND TO FILE ANNUAL REPORTS AND
TO DESIGNATE THE SUPERINTENDENT OF THE INSURANCE DEPARTMENT AS THE
PERSON UPON WHOM PROCESS MIGHT BE SERVED.  IF THEY COMPLIED WITH THE
PROVISIONS OF THIS STATUTE THEY WERE EXEMPTED FROM THE OPERATION OF THE
GENERAL INSURANCE LAWS.  FN8  THIS ACT HAS BEEN CARRIED FORWARD IN
LATER REVISIONS AND, WITH CHANGES IMMATERIAL TO OUR INQUIRY, REMAINS IN
FORCE.  FROM THIS HIATUS IN THE STATUTES GOVERNING FOREIGN BENEFICIARY
ASSOCIATIONS IT RESULTED THAT WHILE FOREIGN ASSOCIATIONS WERE NOT
FORBIDDEN FROM ORGANIZING LODGES, OBTAINING MEMBERS, AND ISSUING
BENEFIT CERTIFICATES IN MISSOURI, AND THEIR CERTIFICATES SO ISSUED WERE
NOT DEEMED TO BE VOID,  FN9  CERTIFICATES ISSUED IN THE INTERIM BETWEEN
1889 AND 1897 WERE CONSTRUED IN ACCORDANCE WITH, AND ACTIONS THEREON
WERE GOVERNED BY, THE PROVISIONS OF THE GENERAL INSURANCE LAWS.  FN10
THE MISSOURI COURTS, HOWEVER, WERE APPARENTLY NOT CALLED UPON IN ANY OF
THE CASES AFFECTED BY THIS RULE OF DECISION TO PASS UPON THE QUESTION
OF THE POWER OF SUCH A SOCIETY, UNDER THE LAW OF THE STATE OF ITS
INCORPORATION, TO WRITE A PARTICULAR SORT OF BENEFICIARY CERTIFICATE;
FN11  BUT THIS COURT REVERSED A JUDGMENT OF THE SUPREME COURT OF
MISSOURI WHICH, WITHOUT REFERENCE TO THE DISTINCTION BETWEEN THE RULE
APPLICABLE TO DOMESTIC AND FOREIGN SOCIETIES, REEXAMINED AND REFUSED TO
GIVE EFFECT TO A JUDGMENT OF THE SUPREME COURT OF CONNECTICUT, THE
COURT OF THE DOMICILE, WITH RESPECT TO THE POWERS OF A CONNECTICUT
ASSOCIATION.  FN12 

THE COURT BELOW WAS NOT AT LIBERTY TO DISREGARD THE FUNDAMENTAL LAW
OF THE PETITIONER AND TURN A MEMBERSHIP BENEFICIARY CERTIFICATE INTO AN
OLD LINE POLICY TO BE CONSTRUED AND ENFORCED ACCORDING TO THE LAW OF
THE FORUM.  THE DECISION THAT THE PRINCIPLE OF ULTRA VIRES CONTRACTS
WAS TO BE APPLIED AS IF THE PETITIONER WERE A MISSOURI OLD LINE LIFE
INSURANCE COMPANY WAS ERRONEOUS IN THE LIGHT OF THE DECISIONS OF THIS
COURT WHICH HAVE UNIFORMLY HELD THAT THE RIGHTS OF MEMBERS OF SUCH
ASSOCIATIONS ARE GOVERNED BY THE DEFINITION OF THE SOCIETY'S POWERS BY
THE COURTS OF ITS DOMICILE.  FN13 

THIRD.  THE DOCTRINE OF ESTOPPEL WAS ERRONEOUSLY INVOKED TO AVOID THE
FORCE AND EFFECT OF THE NEBRASKA JUDGMENT.  THE COURT BELOW WAS OF THE
OPINION THAT, AS THE PETITIONER HAD ISSUED A "PAYMENTS TO CEASE AFTER
20 YEARS" CERTIFICATE, AND AS BOLIN HAD FULLY PERFORMED ON HIS PART BY
PAYING ALL DUES AND ASSESSMENTS OVER THE NAMED PERIOD, THE PETITIONER
WAS ESTOPPED TO PLEAD ITS LACK OF POWER TO ISSUE SUCH A CERTIFICATE. 
THIS AGAIN WAS ON THE THEORY THAT WHATEVER MIGHT BE THE NATURE OF THE
PETITIONER'S ORGANIZATION IN NEBRASKA, FOR THE PURPOSES OF THIS ACTION
IT MUST BE TREATED AS AN OLD LINE INSURANCE COMPANY IN MISSOURI.  IT
WAS FURTHER HELD THAT NO QUESTION OF ESTOPPEL WAS DECIDED IN THE TRAPP
CASE. 

AS TO THE FIRST OF THESE POSITIONS, IT NEED ONLY BE SAID THAT THE
TRAPP CASE WAS A CLASS SUIT IN WHICH IT WAS DETERMINED THAT THE
PETITIONER LACKED POWER, UNDER THE LAW OF NEBRASKA, TO ISSUE SUCH
CERTIFICATES.  IN SUCH A SUIT THE ASSOCIATION REPRESENTS ALL ITS
MEMBERS AND STANDS IN JUDGMENT FOR THEM, AND EVEN THOUGH THE SUIT HAD A
DIFFERENT OBJECT THAN THE INSTANT ONE IT IS CONCLUSIVE UPON ALL THE
MEMBERS OF THE ASSOCIATION WITH RESPECT TO ALL RIGHTS, QUESTIONS, OR
FACTS THEREIN DETERMINED.  FN14 

WITH RESPECT TO THE SECOND POSITION, IT APPEARS FROM THE RECORD THAT
TRAPP, IN THE SUIT IN NEBRASKA, PLEADED THAT THE ASSOCIATION WAS
ESTOPPED TO DENY ITS POWER TO ISSUE THE FORM OF CERTIFICATE IN
QUESTION, AND THE OPINION OF THE NEBRASKA COURT, BY REFERENCE TO A CASE
DECIDED ON THE SAME DAY, CLEARLY INDICATES THAT THE ISSUE OF ESTOPPEL
WAS CONSIDERED AND DETERMINED ADVERSELY TO THE PLAINTIFF. 

FOURTH.  UNDER OUR UNIFORM HOLDINGS THE COURT BELOW FAILED TO GIVE
FULL FAITH AND CREDIT TO THE PETITIONER'S CHARTER EMBODIED IN THE
STATUTES OF NEBRASKA AS INTERPRETED BY ITS HIGHEST COURT.  FN15 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  BOLIN V. SOVEREIGN CAMP, W.O.W., 339 MO. 618; 98 S.W.2D 681. 

FN2  BOLIN ET AL. V. SOVEREIGN CAMP, W.O.W.,  - MO. APP. -; 112
S.W.2D 582. 

FN3  BOLIN ET AL. V. SOVEREIGN CAMP, W.O.W.,  - MO. APP. -; 112
S.W.2D 592. 

FN4  MODERN WOODMEN V. MIXER, 267 U.S. 544, 551; ROYAL ARCANUM V.
GREEN, 237 U.S. 531, 542. 

FN5  ACT OF MARCH 8, 1879; LAWS 1879; R.S. 1879, SECS. 972, 973. 

FN6  ACT OF MARCH 8, 1881; LAWS OF 1881, P. 87. 

FN7  ACT OF MAY 7, 1889; R.S. 1889, SECS. 2823, 2824. 

FN8 ACT OF MARCH 16, 1897; R.S. 1899, C. 12, ART. 11, SECS. 1408,
1409, 1410. 

FN9  SCHMIDT V. FORESTERS, 228 MO. 675, 686; 129 S.W. 653. 

FN10  KERN V. LEGION OF HONOR, 167 MO. 471, 479, 484; 67 S.W. 252;
SCHMIDT V. FORESTERS, SUPRA; MATHEWS V. MODERN WOODMEN, 236 MO. 326;
139 S.W. 151; BRASSFIELD V. MACCABEES, 92 MO. APP. 102; GRUWELL V.
KNIGHTS AND LADIES, 126 MO. APP. 496; 104 S.W. 884. 

FN11  IN KERN V. LEGION OF HONOR, SUPRA, THE COURT SAID, P. 485:
"THE CONTENTION THAT THE PLAINTIFF AS HUSBAND COULD NOT BE THE
BENEFICIARY UNDER THE LAWS OF MASSACHUSETTS OR UNDER ITS CHARTER AND BY
LAWS, IS NOT OPEN TO DISCUSSION OR ADJUDICATION.  NO SUCH ISSUE WAS
RAISED IN THE PLEADINGS OR ASSERTED UPON THE TRIAL IN THE CIRCUIT
COURT.  ...  THE DEFENDANT CHOSE ITS GROUNDS OF DEFENSE, NONE OTHERS
ARE OPEN IN THIS COURT." 

FN12  BARBER V. HARTFORD LIFE INS. CO., 269 MO. 21; 187 S.W. 867,
REVERSED HARTFORD LIFE INS. CO. V. BARBER, 245 U.S. 146; SEE, ALSO,
JOHNSON V. HARTFORD LIFE INS. CO., 166 MO. APP. 261. 

FN13  HARTFORD LIFE INS. CO. V. IBS, 237 U.S. 662; HARTFORD LIFE INS.
CO. V. BARBER, 245 U.S. 146; ROYAL ARCANUM V. GREEN, 237 U.S. 531;
MODERN WOODMEN V. MIXER, 267 U.S. 544. 

FN14  HARTFORD LIFE INS. CO. V. IBS, SUPRA, P. 673. 

FN15  ROYAL ARCANUM V. GREEN, SUPRA, PP. 540, 543, 546; HARTFORD LIFE
INS. CO. V. IBS, SUPRA, P. 669; HARTFORD LIFE INS. CO. V. BARBER,
SUPRA, P. 151; MODERN WOODMEN V. MIXER, SUPRA, P. 551. 
..END :



HELVERING V. WINMILL, 305 U.S. 79 


NO. 11.  ARGUED OCTOBER 12, 1938.  - DECIDED NOVEMBER 7, 1938.  - 93
F.2D 494, REVERSED. 


1.  BROKERAGE COMMISSIONS PAID OR INCURRED IN PURCHASING SECURITIES
DURING THE TAXABLE YEAR BY A TAXPAYER ENGAGED IN BUYING AND SELLING
SECURITIES AS A BUSINESS, ARE NOT DEDUCTIBLE AS "COMPENSATION FOR
PERSONAL SERVICES," UNDER SEC. 23(A), REVENUE ACT OF 1932, BUT ARE
EXPENDITURES PROPERLY CHARGEABLE TO CAPITAL ACCOUNT AS CONSTITUTING
PART OF THE COST OF THE SECURITIES PURCHASED, DEDUCTION OF WHICH, IN
CASE OF LOSS FROM SALES, IS LIMITED BY SECS. 111 AND 23(R) OF THE ACT;
T.R. 77, ART. 282.  P. 81. 

2.  TREASURY REGULATIONS AND INTERPRETATIONS LONG CONTINUED WITHOUT
SUBSTANTIAL CHANGE, APPLYING TO UNAMENDED OR SUBSTANTIALLY REENACTED
STATUTES, ARE DEEMED TO HAVE RECEIVED CONGRESSIONAL APPROVAL AND HAVE
THE EFFECT OF LAW.  P. 82. 

3.  THE GENERAL PROVISION OF T.R. 77, ART. 121, THAT "AMONG THE ITEMS
INCLUDED IN BUSINESS EXPENSES ARE  ...  COMMISSIONS," IS LIMITED BY THE
SPECIAL PROVISION OF ID. ART. 282, DESIGNATING SECURITY PURCHASE
COMMISSIONS AS A "PART OF THE COST PRICE OF SUCH SECURITIES."  P. 83. 

4.  THE ADDITION OF SEC. 23(R) OF THE REVENUE ACT OF 1932 DID NOT
INDICATE A PURPOSE TO ALTER OR REPEAL THE ADMINISTRATIVE INTERPRETATION
UNDER WHICH BROKERS' COMMISSIONS HAVE UNIFORMLY BEEN CONSTRUED AS A
PART OF THE COST OF THE SECURITIES PURCHASED, AND NOT AS CURRENT
BUSINESS EXPENSES.  P. 84. 

5.  CONGRESS HAS POWER TO LIMIT OR DENY DEDUCTIONS FROM GROSS INCOME,
IN THE COMPUTATION OF INCOME TAXES.  P. 84. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. WINMILL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 303 U.S. 633, TO REVIEW A JUDGMENT WHICH REVERSED A
DECISION OF THE BOARD OF TAX APPEALS, 35 B.T.A. 804, SUSTAINING AN
INCOME TAX ASSESSMENT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, IN HIS 1932 INCOME TAX RETURN, DEDUCTED FROM HIS GROSS
INCOME BROKERAGE COMMISSIONS PAID AND INCURRED IN PURCHASING SECURITIES
DURING THAT TAXABLE YEAR.  SECTION 23(A) OF THE REVENUE ACT OF 1932
ALLOWS AS DEDUCTIONS "ALL THE ORDINARY AND NECESSARY EXPENSES PAID OR
INCURRED DURING THE TAXABLE YEAR IN CARRYING ON ANY TRADE OR BUSINESS,
INCLUDING A REASONABLE ALLOWANCE FOR SALARIES OR OTHER COMPENSATION FOR
PERSONAL SERVICES ACTUALLY RENDERED; ...  "  RESPONDENT CONTENDS THAT
HE WAS ENGAGED IN THE "BUSINESS" OF BUYING AND SELLING SECURITIES AND
THAT THE BROKERAGE COMMISSIONS AMOUNTED TO "COMPENSATION FOR PERSONAL
SERVICES ACTUALLY RENDERED" WITHIN THE MEANING OF SEC. 23(A). 

THE GOVERNMENT INSISTS THAT BROKERS' COMMISSIONS IN SECURITY
PURCHASES ARE "EXPENDITURES,  ... PROPERLY CHARGEABLE TO CAPITAL
ACCOUNT" CONSTITUTING "A PART OF THE COST" OF SUCH PROPERTY AND SERVING
ONLY TO INCREASE RESPONDENT'S LOSS FROM SALES OF STOCK UNDER SECS. 111
AND 23(R) WHICH CONTROL ALLOWABLE LOSSES ON DISPOSAL OF STOCKS.  FN1
EXTENT OF GAINS REALIZED FROM SUCH SALES.  FN2  IF RESPONDENT WAS
ENGAGED IN THE "BUSINESS" OF BUYING AND SELLING SECURITIES, AND THE
BROKERS' COMMISSIONS WERE NOT A "PART OF THE COST" OF THE SECURITIES
PURCHASED, BUT WERE ORDINARY BUSINESS EXPENSES, AS DEFINED IN SEC.
23(A), RESPONDENT WAS JUSTIFIED IN DEDUCTING THE BROKERS' COMMISSIONS
FROM HIS GROSS INCOME FOR THE TAXABLE YEAR.  HOWEVER, IF THESE
COMMISSIONS REPRESENT A PART OF THE COST OF THE SECURITIES,
RESPONDENT'S RIGHT TO DEDUCT IS LIMITED BY SEC. 23(R). 

THE COMMISSIONER REFUSED TO PERMIT THE DEDUCTIONS BEYOND THE EXTENT
OF STOCK LOSSES.  HIS ACTION WAS AFFIRMED BY THE BOARD OF TAX APPEALS. 
FN3  THE COURT OF APPEALS HELD THE COMMISSIONS DEDUCTIBLE IF RESPONDENT
WAS ENGAGED IN THE BUSINESS OF BUYING AND SELLING SECURITIES, AND
REMANDED FOR A FINDING AS TO THE NATURE OF HIS BUSINESS.  FN4 

ARTICLE 282, TREASURY REGULATION 77, ISSUED UNDER THE 1932 ACT,
PROVIDES THAT "COMMISSIONS PAID IN PURCHASING SECURITIES ARE A PART OF
THE COST PRICE OF SUCH SECURITIES."  IF THIS REGULATION GOVERNS, THE
RESPONDENT'S CONTENTION CANNOT BE SUSTAINED. 

REGULATIONS PROMULGATED UNDER THE 1916 INCOME TAX LAW TREATED
COMMISSIONS IN SECURITY PURCHASES AS A PART OF THE SECURITIES' COST AND
NOT AS ORDINARY EXPENSE DEDUCTIONS N5.  THIS INTERPRETATION HAS
CONSISTENTLY REAPPEARED IN ALL REGULATIONS UNDER SUCCEEDING TAX
STATUTES.  FN6  IN THE PERIOD SINCE 1916 STATUTES HAVE FROM TIME TO
TIME ALTERED ALLOWABLE DEDUCTIONS, BUT IT IS SIGNIFICANT THAT CONGRESS
SUBSTANTIALLY RETAINED THE ORIGINAL TAXING PROVISIONS ON WHICH THESE
REGULATIONS HAVE RESTED. 

TREASURY REGULATIONS AND INTERPRETATIONS LONG CONTINUED WITHOUT
SUBSTANTIAL CHANGE, APPLYING TO UNAMENDED OR SUBSTANTIALLY REENACTED
STATUTES, ARE DEEMED TO HAVE RECEIVED CONGRESSIONAL APPROVAL AND HAVE
THE EFFECT OF LAW.  FN7 

THERE HAS BEEN TACIT, IF NOT EXPRESS, JUDICIAL APPROVAL FOR THE
ADMINISTRATIVE TREATMENT OF COMMISSIONS AS AN ELEMENT OF THE COST OF
SECURITIES.  IN HUTTON V. COMMISSIONER, 39 F.2D 459, 460, THE COURT OF
APPEALS RECOGNIZED THAT "IT HAS BEEN A SETTLED RULE OF THE TREASURY
DEPARTMENT THAT COMMISSIONS PAID IN PURCHASING SECURITIES ARE A CAPITAL
EXPENDITURE AS PART OF THE COST PRICE OF THE SECURITIES." 

IN RECOGNITION OF THIS ADMINISTRATIVE REGULATION, IT HAS BEEN SAID
HERE THAT "  ...  COMMISSIONS (PAID FOR MARKETING BONDS) DO NOT DIFFER
FROM BROKERAGE COMMISSIONS PAID UPON THE PURCHASE OR SALE OF PROPERTY. 
THE REGULATIONS HAVE CONSISTENTLY TREATED SUCH COMMISSIONS, NOT AS
ITEMS OF CURRENT EXPENSE, BUT AS ADDITIONS TO THE COST OF PROPERTY OR
DEDUCTIONS FROM THE PROCEEDS OF SALE, IN ARRIVING AT NET CAPITAL PROFIT
OR LOSS FOR PURPOSES OF COMPUTING THE TAX."  FN8 

RESPONDENT POINTS TO AN APPARENT INCONSISTENCY BETWEEN THE GENERAL
PROVISION IN TREASURY REGULATION 77, ARTICLE 121, THAT "AMONG THE ITEMS
INCLUDED IN BUSINESS EXPENSES ARE  ... COMMISSIONS," AND ARTICLE 282
WHICH SPECIFICALLY AND PARTICULARLY DECLARES THAT "COMMISSIONS PAID IN
PURCHASING SECURITIES ARE A PART OF THE COST PRICE OF SUCH
SECURITIES."  SPECIAL PROVISIONS LIMIT THE APPLICATION OF THOSE OF A
BROAD AND GENERAL NATURE RELATING TO THE SAME SUBJECT.  THE SPECIAL
DESIGNATION OF SECURITY PURCHASE COMMISSIONS AS A "PART OF THE COST
PRICE OF SUCH SECURITIES" CONTAINED IN ARTICLE 282 EVINCES THE CLEAR
INTENT TO WITHDRAW THAT SPECIAL TYPE OF COMMISSION FROM THE GENERAL
CLASSIFICATION OF ARTICLE 121.  FN9 

NOR CAN IT BE INFERRED THAT THE ADDITION OF SEC. 23(R) TO THE 1932
ACT INDICATED ANY CONGRESSIONAL PURPOSE TO ALTER OR REPEAL THE LONG
EXISTING ADMINISTRATIVE INTERPRETATION OF NON-DEDUCTIBLE CAPITAL
EXPENDITURES UNDER WHICH BROKERS' PURCHASE COMMISSIONS HAVE BEEN
UNIFORMLY CONSIDERED AS A PART OF THE COST OF SECURITIES AND NOT AS
CURRENT BUSINESS EXPENSES.  THIS NEW STATUTORY RESTRICTION OF THE
ALLOWANCE FOR LOSSES FROM SALES OF STOCK BEARS NO SUCH RELATIONSHIP TO
THE DEFINITION OF COST PRICE OF SECURITIES AS TO LEAD TO THE CONCLUSION
THAT CONGRESS INTENDED TO OVERTHROW AND ABANDON A SETTLED PRACTICE OF
DETERMINING THE ELEMENTS OF COST. 

THE BROKERS' PURCHASE COMMISSIONS HERE CONSTITUTED A PART OF THE
ACQUISITION COST OF THE SECURITIES INVOLVED, AND ARE NOT ALLOWABLE TO
THE TAXPAYER AS A DEDUCTION FROM GROSS INCOME UNDER SEC. 23(A) OF THE
REVENUE ACT OF 1932.  CONGRESS, IN THE EXERCISE OF ITS POWER TO DENY OR
LIMIT DEDUCTIONS FROM GROSS INCOME,  FN10  HAS - BY SEC. 23(R) -
LIMITED THIS TAXPAYER'S ALLOWABLE DEDUCTION.  HE HAS A RIGHT TO A
DEDUCTION "ONLY TO THE EXTENT OF  ...  GAINS FROM  ...  SALES OR
EXCHANGES" OF STOCKS AND BONDS AS THEREIN PROVIDED.  THE FACT - IF IT
BE A FACT - THAT RESPONDENT WAS ENGAGED IN THE BUSINESS OF BUYING AND
SELLING SECURITIES DOES NOT ENTITLE HIM TO TAKE A DEDUCTION CONTRARY TO
THIS PROVISION. 

THE CAUSE IS REVERSED AND REMANDED TO THE COURT OF APPEALS FOR ACTION
IN HARMONY WITH THIS OPINION.  REVERSED. 

FN1  REVENUE ACT OF 1932, C. 209, 47 STAT. 169, SEC. 111. 
DETERMINATION OF AMOUNT OF GAIN OR LOSS. 

"(A)  COMPUTATION OF GAIN OR LOSS.  - EXCEPT AS HEREINAFTER PROVIDED
IN THIS SECTION, THE GAIN FROM THE SALE OR OTHER DISPOSITION OF
PROPERTY SHALL BE THE EXCESS OF THE AMOUNT REALIZED THEREFROM OVER THE
ADJUSTED BASIS PROVIDED IN SECTION 113(B), AND THE LOSS SHALL BE THE
EXCESS OF SUCH BASIS OVER THE AMOUNT REALIZED. 

.         .         .         .         . 

"SEC. 113.  ADJUSTED BASIS FOR DETERMINING GAIN OR LOSS. 

"(B)  ADJUSTED BASIS.  - THE ADJUSTED BASIS FOR DETERMINING THE GAIN
OR LOSS FROM THE SALE OR OTHER DISPOSITION OF PROPERTY, WHENEVER
ACQUIRED, SHALL BE THE BASIS DETERMINED UNDER SUBSECTION (A), ADJUSTED
AS HEREINAFTER PROVIDED. 

"(1)  GENERAL RULE.  - PROPER ADJUSTMENT IN RESPECT OF THE PROPERTY
SHALL IN ALL CASES BE MADE - 

"(A)  FOR EXPENDITURES, RECEIPTS, LOSSES, OR OTHER ITEMS, PROPERLY
CHARGEABLE TO CAPITAL ACCOUNT, INCLUDING TAXES AND OTHER CARRYING
CHARGES ON UNIMPROVED AND UNPRODUCTIVE REAL PROPERTY, BUT NO SUCH
ADJUSTMENT SHALL BE MADE FOR TAXES OR OTHER CARRYING CHARGES FOR WHICH
DEDUCTIONS HAVE BEEN TAKEN BY THE TAXPAYER IN DETERMINING NET INCOME
FOR THE TAXABLE YEAR OR PRIOR TAXABLE YEARS; ...  " 

FN2  REVENUE ACT OF 1932, C. 209, 47 STAT. 169. 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME.  IN COMPUTING NET INCOME
THERE SHALL BE ALLOWED AS DEDUCTIONS: 

     .         .         .         .         . 

"(R)  LIMITATION ON STOCK LOSSES. 

"(1)  LOSSES FROM SALES OR EXCHANGES OF STOCKS AND BONDS (AS DEFINED
IN SUBSECTION (T) OF THIS SECTION) WHICH ARE NOT CAPITAL ASSETS (AS
DEFINED IN SECTION 101) SHALL BE ALLOWED ONLY TO THE EXTENT OF THE
GAINS FROM SUCH SALES OR EXCHANGES (INCLUDING GAINS WHICH MAY BE
DERIVED BY A TAXPAYER FROM THE RETIREMENT OF HIS OWN OBLIGATIONS)." 

FN3  35 B.T.A. 804. 

FN4  93 F.2D 494. 

FN5  SEE, ART. 8, PARAGRAPH 108, T.R. 33(REVISED 1918). 

FN6  ART. 293 OF T.R. 45(1918), 62(1921); ART. 292 OF T.R. 65(1924),
69(1926); ART. 282 OF T.R. 74(1928), 77(1932); ART. 24-2 OF T.R.
86(1934), 94(1936). 

FN7 UNITED STATES V. DAKOTA-MONTANA OIL CO., 288 U.S. 459, 466; OLD
MISSION CO. V. HELVERING, 293 U.S. 289, 293, 294. 

FN8  HELVERING V. UNION PACIFIC R. CO., 293 U.S. 282, 286. 

FN9  SIMILARLY, IF THE SPECIFIC PROVISIONS OF ARTICLE 282 ARE VALID
AND HAVE THE PRESENT EFFECT OF LAW, RESPONDENT'S CONTENTION THAT THE
COMMISSIONS ARE UNCOMPENSATED LOSSES WITHIN THE MEANING OF THE GENERAL
PROVISIONS OF SEC. 23(E)(1) OF THE 1932 ACT IS UNAVAILING. 

FN10  SEE, HELVERING V. INDEPENDENT LIFE INS. CO., 292 U.S. 371,
381. 
..END :















HINES V. LOWREY, 305 U.S. 85 


NO. 24.  ARGUED OCTOBER 19, 1938.  - DECIDED NOVEMBER 7, 1938.  - 252
APP. DIV. 779 - 300 N.Y.S. 603, REVERSED. 


1.  SECTION 500 OF THE WORLD WAR VETERANS' ACT LIMITS TO $10 THE FEE
OF ANY ATTORNEY OR AGENT FOR SERVICES IN THE PREPARATION AND EXECUTION
OF NECESSARY PAPERS IN ANY APPLICATION TO THE BUREAU, EXCEPT WHERE A
JUDGMENT OR DECREE SHALL BE RENDERED IN AN ACTION UNDER SEC. 1, TIT. 19
OF THE ACT.  HELD, THE LIMITATION WAS BINDING UPON A STATE COURT IN
RESPECT OF AN ALLOWANCE FOR SERVICES RENDERED IN CONNECTION WITH A
CLAIM ON A WAR RISK INSURANCE CONTRACT BY AN ATTORNEY ENGAGED BY THE
GUARDIAN OF AN INCOMPETENT VETERAN.  HINES V. STEIN, 298 U.S. 94,
DISTINGUISHED.  P. 87. 

2.  SECTION 500 OF THE WORLD WAR VETERANS' ACT, LIMITING THE AMOUNT
OF THE FEE PAYABLE TO ATTORNEYS FOR SERVICES RENDERED IN CONNECTION
WITH CLAIMS BEFORE THE BUREAU, IS A VALID EXERCISE OF THE POWER OF
CONGRESS.  P. 91. 

HINES, ADMINISTRATOR OF VETERANS' AFFAIRS, V. LOWREY, COMMITTEE OF THE
PERSON AND ESTATE OF GARMES. 

CERTIORARI TO THE SUPREME COURT OF NEW YORK. 

CERTIORARI, 304 U.S. 555, TO REVIEW THE AFFIRMANCE OF AN ORDER
ALLOWING A FEE OF $1500 FOR LEGAL SERVICES RENDERED THE ESTATE OF AN
INCOMPETENT VETERAN.  THE ADMINISTRATOR OF VETERANS' AFFAIRS HAD
INTERVENED IN OPPOSITION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PROHIBITS THE RECOGNITION OF ATTORNEYS OR CLAIM AGENTS IN THE
PRESENTATION OR ADJUDICATION OF VETERANS' WAR RISK INSURANCE CLAIMS;
LIMITS TO TEN DOLLARS THE PAYMENT FOR ASSISTING IN THE PREPARATION AND
EXECUTION OF AN APPLICATION TO THE VETERANS' BUREAU; PERMITS A COURT -
RENDERING A FAVORABLE JUDGMENT OR DECREE ON A VETERAN'S CLAIM - TO
ALLOW THE VETERAN'S ATTORNEY A FEE NOT TO EXCEED TEN PER CENT OF THE
AMOUNT RECOVERED; AND MAKES SOLICITING OR OBTAINING ANY FEE GREATER
THAN THE STATUTE PROVIDES A CRIME SUBJECT TO A MAXIMUM PUNISHMENT OF A
$500 FINE AND TWO YEARS IMPRISONMENT. 

A COMMITTEE (GUARDIAN APPOINTED BY A NEW YORK STATE COURT) FOR AN
INSANE VETERAN RETAINED AN ATTORNEY TO PROSECUTE THE RIGHTS OF THE
INCOMPETENT ON A WAR RISK INSURANCE CONTRACT.  THE NEW YORK COURT WAS
PETITIONED FOR AN ATTORNEY'S FEE OF $3,000.  UPON HEARING, IT APPEARED
THAT THE ATTORNEY HAD PERFORMED SERVICES OF AN INVESTIGATIONAL AND
PREPARATORY NATURE IN THE PROSECUTION OF THE VETERAN'S CLAIM; THAT
CONTRARY TO SEC. 500, HE HAD BEEN RECOGNIZED BY THE BUREAU AND
PERMITTED TO JOIN WITH A REPRESENTATIVE OF THE DISABLED WAR VETERANS IN
PRESENTING THE CLAIM TO THE BUREAU; AND THAT SUBSEQUENTLY, BUT WITHOUT
LITIGATION, JUDICIAL DECREE OR JUDGMENT AGAINST THE GOVERNMENT, THE
GOVERNMENT PAID THE GUARDIAN AN AMOUNT IN EXCESS OF $10,000 ON THE
CLAIM.  THE NEW YORK COURT ALLOWED A FEE OF $1,500 FOR THE ATTORNEY'S
SERVICES, OVER THE OBJECTION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS,
WHO INTERVENED AND INSISTED THAT SEC. 500 PROHIBITED ANY FEE IN EXCESS
OF $10 IN THIS CASE.  FN2  WE CAN ASSUME, IN THE CONSIDERATION OF
QUESTIONS HERE PRESENTED, THAT VALUABLE SERVICES WERE RENDERED BY THE
ATTORNEY. 

RESPONDENT SEEKS TO SUSTAIN THE $1,500 FEE UPON THE THEORY THAT THE
GENERAL POWER OF THE NEW YORK COURT TO FIX FEES FOR SERVICES RENDERED
AN INCOMPETENT UNDER THAT COURT'S JURISDICTION IS NOT SUBJECT TO THE
LIMITATION OF $10 FOR FEES AS PROVIDED IN SEC. 500.  HE URGES THAT THE
PRESENT CASE IS CONTROLLED BY THE DECISION IN HINES V. STEIN, 298 U.S.
94, 98.  IN THAT CASE THE COURT SAID, "NOTHING BROUGHT TO OUR ATTENTION
WOULD JUSTIFY THE VIEW THAT CONGRESS INTENDED TO DEPRIVE STATE COURTS
OF THEIR USUAL AUTHORITY OVER FIDUCIARIES, OR TO SANCTION THE
PROMULGATION OF RULES TO THAT END BY EXECUTIVE OFFICERS OR BUREAUS." 
THIS LANGUAGE DID NOT REFER TO SEC. 500, WHICH WE NOW CONSIDER, BUT WAS
A CONSTRUCTION AND INTERPRETATION OF RULES PROMULGATED BY THE
ADMINISTRATOR OF VETERANS' AFFAIRS UNDER AUTHORITY OF SECS. 4 AND 7 OF
AN ACT OF MARCH 20, 1933, C. 3, 48 STAT. 9, WHICH RULES WERE TRACEABLE
TO SECS. 111, 114 AND 115, TITLE 38, U.S.C.  THESE CODE SECTIONS ARE
BASED UPON AN ACT PASSED IN 1884. 

OBVIOUSLY, THE INTERPRETATION GIVEN RULES PROMULGATED IN FURTHERANCE
OF A LINE OF LEGISLATION DATING FROM 1884 CANNOT BE ACCEPTED AS
CONTROLLING IN DETERMINING THE INTENT AND EFFECT OF A SEPARATE AND
DISTINCT ACT (SEC. 500) DIFFERING IN FORM, SUBSTANCE AND HISTORICAL
BACKGROUND.  THE RULES AND STATUTES CONSTRUED IN HINES V. STEIN, SUPRA,
HAVE NO BEARING ON THIS CASE, WHICH MUST BE DETERMINED BY THE
APPLICATION OF SEC. 500. 

OF CLAIM AGENTS AND ATTORNEYS IN THE PROSECUTION OF VETERANS' INSURANCE
AND RELATED CLAIMS.  SHORTLY AFTER THE UNITED STATES ENTERED THE WORLD
WAR, CONGRESS PROVIDED A COMPREHENSIVE STATUTORY PLAN OF WAR RISK
INSURANCE FOR SOLDIERS AND SAILORS.  FN3  SECTION 13 OF THAT STATUTE
CONTAINED THIS PROVISION: "THE DIRECTOR SHALL ADOPT REASONABLE AND
PROPER RULES  ...  , TO REGULATE THE MATTER OF THE COMPENSATION, IF
ANY, BUT IN NO CASE TO EXCEED TEN PER CENTUM, TO BE PAID TO CLAIM
AGENTS AND ATTORNEYS FOR SERVICES IN CONNECTION WITH" COLLECTION OF
SOLDIERS' AND SAILORS' BENEFITS. 

MAY 20, 1918, CONGRESS AMENDED SEC. 13 OF THE 1917 ACT.  FN4  THE
HOUSE REPORT SHOWS THAT THIS AMENDMENT WAS STRONGLY URGED BY THE
SECRETARY OF THE TREASURY, THEN ADMINISTERING THE WORLD WAR VETERANS'
ACT.  FN5  THE 1918 AMENDMENT IS SUBSTANTIALLY THE SAME AS SEC. 500,
AND IN A CASE INVOLVING THE MEANING OF THAT AMENDMENT THIS COURT SAID,
"PETITIONER CLAIMS THAT THE INHIBITION AGAINST RECEIVING ANY SUM
GREATER THAN THREE DOLLARS (TEN DOLLARS UNDER SEC. 500) RELATES SOLELY
TO THE CLERICAL WORK OF FILLING OUT THE FORM OR AFFIDAVIT OF CLAIM, AND
DOES NOT APPLY TO USEFUL INVESTIGATION AND PREPARATORY WORK SUCH AS HE
DID.  ... 

"WE FIND NO REASON WHICH WOULD JUSTIFY DISREGARD OF THE PLAIN
LANGUAGE OF THE SECTION UNDER CONSIDERATION.  IT DECLARES THAT ANY
PERSON WHO RECEIVES A FEE OR COMPENSATION IN RESPECT OF A CLAIM UNDER
THE ACT EXCEPT AS THEREIN PROVIDED SHALL BE DEEMED GUILTY OF A
MISDEMEANOR.  THE ONLY COMPENSATION WHICH IT PERMITS A CLAIM AGENT OR
ATTORNEY TO RECEIVE WHERE NO LEGAL PROCEEDING HAS BEEN COMMENCED IS
THREE DOLLARS FOR ASSISTANCE IN PREPARATION AND EXECUTION OF NECESSARY
PAPERS.  AND THE HISTORY OF THE ENACTMENT INDICATES PLAINLY ENOUGH THAT
CONGRESS DID NOT FAIL TO CHOOSE APT LANGUAGE TO EXPRESS ITS PURPOSE." 
FN6 

IN 1926, CONGRESS ENACTED ADDITIONAL LEGISLATION FOR THE SPECIFIC
PROTECTION OF INCOMPETENT VETERANS FROM ILLEGAL OR EXCESSIVE FEES WHERE
GUARDIANS HAD BEEN APPOINTED BY ANY COURT - STATE OR FEDERAL.  FN7
CONGRESS DECLARED THAT "WHENEVER IT APPEARS THAT ANY GUARDIAN, CURATOR,
CONSERVATOR OR OTHER PERSON, IN THE OPINION OF THE ADMINISTRATOR, IS
NOT PROPERLY EXECUTING OR HAS NOT PROPERLY EXECUTED THE DUTIES OF HIS
TRUST OR HAS COLLECTED OR PAID, OR IS ATTEMPTING TO COLLECT OR PAY,
FEES, COMMISSIONS OR ALLOWANCES THAT ARE INEQUITABLE OR IN EXCESS OF
THOSE ALLOWED BY LAW FOR THE DUTIES PERFORMED  ...  , THEN AND IN THAT
EVENT THE ADMINISTRATOR IS HEREBY EMPOWERED BY HIS DULY AUTHORIZED
ATTORNEY TO APPEAR IN THE COURT WHICH HAS APPOINTED SUCH FIDUCIARY,
...  AND MAKE PROPER PRESENTATION OF SUCH MATTERS.  ...  "  FN8 

THE HISTORY OF SEC. 500 MANIFESTS BEYOND DOUBT THE CLEAR
ESTABLISHMENT OF A PUBLIC POLICY AGAINST THE PAYMENT OF FEES FOR
PROSECUTION OF VETERANS' CLAIMS IN EXCESS OF THOSE FIXED BY STATUTE. 
COLLECTION OF A GREATER FEE THAN THAT FIXED IN THE STATUTE IS MADE A
CRIME, AND THIS COURT HAS SUSTAINED A CONVICTION UNDER THE STATUTE. 
FN9  CONTRACTS FOR THE COLLECTION OF FEES IN EXCESS OF VALID STATUTORY
LIMITATIONS AND FOR SERVICES VALIDLY PROHIBITED BY STATUTE CANNOT
STAND, WHETHER MADE WITH A COMPETENT VETERAN OR THE GUARDIAN OF AN
INCOMPETENT VETERAN.  NOR CAN ANY COURT HAVING JURISDICTION OVER AN
INCOMPETENT AWARD A FEE IN VIOLATION OF A VALID STATUTE.  CONGRESS
CLEARLY INTENDED TO PROTECT ALL VETERANS, COMPETENT AND INCOMPETENT, IN
ALL COURTS, STATE AND FEDERAL, AGAINST THE IMPOSITION OR PAYMENT OF
FEES IN EXCESS OF THE AMOUNT FIXED BY STATUTE.  IN FURTHERANCE OF THIS
POLICY THE ADMINISTRATOR OF VETERANS' AFFAIRS WAS CHARGED WITH THE
EXPRESS DUTY OF APPEARING IN ALL COURTS WHERE IT APPEARS THAT "ANY
GUARDIAN  ...  OR OTHER PERSON ...  IS ATTEMPTING TO COLLECT FEES  ...
IN EXCESS OF THOSE ALLOWED BY LAW."  THE PROGRESSIVE STRENGTHENING OF
THIS PARTICULAR LEGISLATIVE POLICY PRECLUDES ANY PROBABILITY THAT
CONGRESS INTENDED TO EXEMPT MENTAL INCOMPETENTS FROM ITS PROTECTION,
AND CONGRESS ALONE IS VESTED WITH CONSTITUTIONAL POWER TO DETERMINE THE
WISDOM OF THIS POLICY. 

CONGRESSIONAL ENACTMENTS IN PURSUANCE OF CONSTITUTIONAL AUTHORITY ARE
THE SUPREME LAW OF THE LAND.  SECTION 500 IS A VALID EXERCISE OF
CONGRESSIONAL POWER.  FN10  "THE LAWS OF THE UNITED STATES ARE LAWS IN
THE SEVERAL STATES, AND JUST AS MUCH BINDING ON THE CITIZENS AND COURTS
THEREOF AS THE STATE LAWS ARE."  FN11 

NO COURT HAS RENDERED A JUDGMENT OR DECREE IN FAVOR OF THE
INCOMPETENT VETERAN AND AGAINST THE GOVERNMENT, IN WHICH THE COURT AS A
PART OF ITS DECREE DETERMINED AND ALLOWED A REASONABLE FEE FOR THE
ATTORNEY OF THE VETERAN.  IN THE ABSENCE OF SUCH A JUDGMENT AND DECREE
AN ATTORNEY'S FEE OF MORE THAN $10 IS CONTRARY TO THE CONTROLLING
CONGRESSIONAL ENACTMENT.  THE JUDGMENT BELOW BEING FOR MORE THAN THIS
AMOUNT IS UNAUTHORIZED AND THE CAUSE IS REVERSED. 

FN1  "AMOUNT PERMITTED TO BE PAID AGENTS OR ATTORNEYS; SOLICITATION,
ETC., OF UNAUTHORIZED FEES OR COMPENSATION; PUNISHMENT.  EXCEPT IN THE
EVENT OF LEGAL PROCEEDINGS UNDER SECTION 19, TITLE I OF THIS ACT, NO
CLAIM AGENT OR ATTORNEY EXCEPT THE RECOGNIZED REPRESENTATIVES OF THE
AMERICAN RED CROSS, THE AMERICAN LEGION, THE DISABLED AMERICAN
VETERANS, AND VETERANS OF FOREIGN WARS, AND SUCH OTHER ORGANIZATIONS AS
SHALL BE APPROVED BY THE DIRECTOR SHALL BE RECOGNIZED IN THE
PRESENTATION OR ADJUDICATION OF CLAIMS UNDER PARTS II, III, AND IV, OF
THIS ACT, AND PAYMENT TO ANY ATTORNEY OR AGENT FOR SUCH ASSISTANCE AS
MAY BE REQUIRED IN THE PREPARATION AND EXECUTION OF THE NECESSARY
PAPERS IN ANY APPLICATION TO THE BUREAU SHALL NOT EXCEED $10 IN ANY ONE
CASE:  PROVIDED, HOWEVER, THAT WHEREVER A JUDGMENT OR DECREE SHALL BE
RENDERED IN AN ACTION BROUGHT PURSUANT TO SECTION 19 OF TITLE I OF THIS
ACT, THE COURT, AS A PART OF ITS JUDGMENT OR DECREE, SHALL DETERMINE
AND ALLOW REASONABLE FEES FOR THE ATTORNEYS OF THE SUCCESSFUL PARTY OR
PARTIES AND APPORTION SAME IF PROPER, SAID FEES NOT TO EXCEED 10 PER
CENTUM OF THE AMOUNT RECOVERED, AND TO BE PAID BY THE BUREAU OUT OF THE
PAYMENTS TO BE MADE UNDER THE JUDGMENT OR DECREE AT A RATE NOT
EXCEEDING ONE-TENTH OF EACH OF SUCH PAYMENTS UNTIL PAID.  ANY PERSON
WHO SHALL, DIRECTLY OR INDIRECTLY, SOLICIT, CONTRACT FOR, CHARGE, OR
RECEIVE, OR WHO SHALL ATTEMPT TO SOLICIT, CONTRACT FOR, CHARGE, OR
RECEIVE ANY FEE OR COMPENSATION, EXCEPT AS HEREIN PROVIDED, SHALL BE
GUILTY OF A MISDEMEANOR, AND FOR EACH AND EVERY OFFENSE SHALL BE
PUNISHABLE BY A FINE OF NOT MORE THAN $500 OR BY IMPRISONMENT AT HARD
LABOR FOR NOT MORE THAN TWO YEARS, OR BY BOTH SUCH FINE AND
IMPRISONMENT."  43 STAT. 628, AS AMENDED 43 STAT. 1311, C. 10, 38
U.S.C. 551. 

FN2  THE ADMINISTRATOR APPEALED AND THE APPELLATE DIVISION AFFIRMED. 
252 APP. DIV. 779; 300 N.Y.S. 603.  THE COURT OF APPEALS OF NEW YORK
DENIED THE ADMINISTRATOR'S MOTION FOR LEAVE TO APPEAL.  13 N.E.2D 478. 
THIS COURT GRANTED CERTIORARI. 

FN3  C. 105, 40 STAT. 398(OCTOBER, 1917). 

FN4  C. 77, 40 STAT. 555. 

FN5  HOUSE REPORT NO. 471 FROM THE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 65TH CONG., 2ND SESSION.  A PART OF THE LETTER OF THE
SECRETARY OF THE TREASURY CONTAINED IN THE REPORT WAS AS FOLLOWS:  "THE
EVILS OF THE SITUATION ARE PRESSING.  UNSCRUPULOUS ATTORNEYS AND CLAIM
AGENTS ARE CIRCULARIZING PROSPECTIVE CLAIMANTS  ...  THE HEARTLESSNESS
AND RAPACITY OF THESE PERSONS KNOWS NO BOUNDS.  IN SOME INSTANCES THEIR
BREAK-NECK RUSH FOR EMPLOYMENT HAS LED THEM TO THE LENGTH OF CRUCIFYING
THE WIVES AND MOTHERS OF THOSE IN THE SERVICE BY FALSE ANNOUNCEMENTS
THAT THEIR HUSBANDS OR SONS HAVE ALREADY FALLEN, AND IN ALMOST ALL
CASES THEY ARE SEEKING TO MULCT THE UNWARY OUT OF HUNDREDS OF DOLLARS
FOR SERVICES THAT ARE EITHER ENTIRELY UNNECESSARY OR WOULD BE AMPLY
REMUNERATED BY A NOMINAL FEE."  THE DISCUSSIONS OF THE AMENDMENT IN THE
HOUSE BY THOSE IN CHARGE OF THE BILL WERE OF THE SAME TENOR. 
CONGRESSIONAL RECORD, VOL. 56, PART 5, 5220-5226. 

FN6  MARGOLIN V. UNITED STATES, 269 U.S. 93, 101, 102. 

FN7  C. 723, 44 STAT. 792; C. 10, 38 U.S.C. 450. 

FN8  IN 1935, CONGRESS ADDED THE PROVISO THAT "  ...  THE
ADMINISTRATOR IS HEREBY AUTHORIZED AND EMPOWERED TO APPEAR OR INTERVENE
BY HIS DULY AUTHORIZED ATTORNEY IN ANY COURT AS AN INTERESTED PARTY IN
ANY LITIGATION INSTITUTED BY HIMSELF OR OTHERWISE, DIRECTLY AFFECTING
MONEY PAID TO SUCH FIDUCIARY (GUARDIAN) UNDER THIS SECTION."  C. 510,
49 STAT. 607, 608. 

FN9  MARGOLIN V. UNITED STATES, SUPRA. 

FN10  MARGOLIN V. UNITED STATES, SUPRA; CALHOUN V. MASSIE, 253 U.S.
170. 

FN11  CLAFLIN V. HOUSEMAN, 93 U.S. 130, 136. 
..END :













WAIALUA CO. V. CHRISTIAN, 305 U.S. 91 


NO. 15.  ARGUED OCTOBER 13, 14, 1938.  - DECIDED NOVEMBER 7, 1938.  - 93
F.2D 603 - 94 ID. 806, REVERSED. 


1.  THE RULE THAT A FEDERAL COURT WILL PAY DEFERENCE TO DECISIONS OF
TERRITORIAL COURTS ON MATTERS OF LOCAL CONCERN IS APPLICABLE TO
DECISIONS OF THE SUPREME COURT OF THE TERRITORY OF HAWAII.  P. 107. 

2.  THIS RULE APPLIES WHERE THE QUESTIONS DECIDED CONCERN THE
INTERPRETATION AND VALIDITY OF CONTRACTS OF INCOMPETENT PERSONS, AND
THE RIGHTS OF A GRANTEE IN RESPECT OF IMPROVEMENTS ON THE LAND AFTER
THE INCOMPETENT'S DEED HAS BEEN CANCELED.  P. 108. 

3.  ALTHOUGH THE 34TH SECTION OF THE JUDICIARY ACT IS NOT APPLICABLE
TO THE TERRITORIES, THE REASONS SUPPORTING THE POLICY OF HAVING THE
STATE COURTS DECLARE THE STATE LAW LIKEWISE SUPPORT THE VIEW THAT THE
TERRITORIAL COURTS SHOULD BE FREE TO DECLARE THE LAW OF THE
TERRITORIES.  P. 109. 

4.  THE POWER OF THE CIRCUIT COURT OF APPEALS UPON REVIEW TO REVERSE
RULINGS OF THE SUPREME COURT OF HAWAII ON THE LAW OR THE FACTS SHOULD
BE EXERCISED ONLY IN CASES OF MANIFEST ERROR.  P. 109. 

5.  DECISIONS OF THE SUPREME COURT OF HAWAII WHICH ARE IN CONFORMITY
WITH THE CONSTITUTION AND APPLICABLE STATUTES OF THE UNITED STATES, AND
ARE NOT MANIFESTLY ERRONEOUS IN THEIR STATEMENT OR APPLICATION OF
GOVERNING PRINCIPLES, ARE TO BE ACCEPTED AS STATING THE LAW OF THE
TERRITORY.  P. 109. 

6.  IN A SUIT IN EQUITY INVOLVING QUESTIONS AS TO THE VALIDITY AND
CONSTRUCTION OF PARTICULAR CONTRACTS OF AN INCOMPETENT PERSON - VIZ., A
DEED, A LEASE, AND A CONTRACT FOR MAINTENANCE,  - AND A QUESTION AS TO
RIGHTS IN IMPROVEMENTS MADE UPON THE LAND BY A GRANTEE UNDER A DEED
SUBSEQUENTLY CANCELED, THE SUPREME COURT OF HAWAII RULED THAT THE
CONTRACTS OF AN INCOMPETENT PERSON MADE PRIOR TO AN ADJUDICATION OF
INCOMPETENCY ARE VOIDABLE, AND THAT IN DETERMINING WHETHER RELIEF
SHOULD BE GRANTED THE EQUITIES ON BOTH SIDES SHOULD BE WEIGHED.  THE
COURT CONCLUDED UPON THE FACTS OF THIS CASE (A) THAT THE DEED SHOULD BE
CANCELED, BUT THAT THE LEASE AND THE CONTRACT FOR MAINTENANCE SHOULD BE
SUSTAINED; (B) THAT THE CONTRACT FOR MAINTENANCE SHOULD BE CONSTRUED AS
ASSIGNING RENTS AND PROFITS ACCRUING TO THE INCOMPETENT NOT ONLY DURING
THE TERM OF AN EXISTING LEASE, BUT THEREAFTER AS WELL; (C) THAT AN
ASSIGNEE OF THE RENTS AND PROFITS HAD MADE A VALID TRANSFER OF THEM BY
DEED; AND (D) THAT, IN RESPECT OF THE IMPROVEMENTS ON THE LAND, THESE
SHOULD BE RESERVED TO THE GRANTEE AND RIGHTS OF USE AS BETWEEN THE
GRANTOR AND GRANTEE ADJUSTED AS PROVIDED IN THE DECREE. 

HELD, THE SUPREME COURT OF HAWAII'S DECISIONS OF THE QUESTIONS
INVOLVED WERE NOT MANIFESTLY ERRONEOUS, AND SHOULD NOT HAVE BEEN
DISTURBED ON REVIEW BY THE CIRCUIT COURT OF APPEALS.  PP. 109-111. 

WAIALUA AGRICULTURAL CO. V. CHRISTIAN ET AL.* 

*TOGETHER WITH NO. 17, CHRISTIAN V. WAIALUA AGRICULTURAL CO., ALSO ON
WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CROSS WRITS OF CERTIORARI, 304 U.S. 553, TO REVIEW THE REVERSAL OF A
DECREE OF THE SUPREME COURT OF HAWAII IN A SUIT BROUGHT BY THE GUARDIAN
OF AN INCOMPETENT PERSON TO SET ASIDE CERTAIN CONTRACTS AND TO RECOVER
THE RENTAL VALUE OF CERTAIN LANDS OF THE INCOMPETENT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THESE CASES CONCERN THE VALIDITY OF A LEASE, A CONTRACT FOR
MAINTENANCE, AND A DEED CONVEYING OR ASSIGNING RIGHTS OF ELIZA R. P.
CHRISTIAN, AN INCOMPETENT, TO A ONE-THIRD UNDIVIDED INTEREST IN LAND ON
THE ISLAND OF OAHU, TERRITORY OF HAWAII. 

THE SUPREME COURT OF THE TERRITORY OF HAWAII IN TWO OPINIONS ON
SEPARATE APPEALS SET ASIDE THE DEED AND REFUSED TO SET ASIDE THE
CONTRACT OR LEASE.  A DECREE WAS ENTERED DIRECTING THE RECONVEYANCE TO
THE INCOMPETENT OF HER PREVIOUSLY CONVEYED INTEREST IN THE TRACT WITH
ADJUSTMENTS FOR IMPROVEMENTS.  FN1  THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT REFUSED TO REVIEW THE FIRST DECREE ON THE GROUND THAT
NO FINAL ORDER HAD BEEN ENTERED.  FN2  APPEALS WERE TAKEN FROM THE
SECOND DECREE BY THE INCOMPETENT AND, AFTER SEVERANCE, BY THE WAIALUA
AGRICULTURAL COMPANY, LIMITED.  THE CIRCUIT COURT OF APPEALS REVERSED
THE SUPREME COURT OF HAWAII AND REMANDED THE CAUSE TO THAT COURT WITH
DIRECTIONS TO REMAND TO THE TRIAL COURT, WITH INSTRUCTIONS TO GRANT
RELIEF AGAINST THE DEED UPON RESTITUTION OF THE CONSIDERATION AND TO
TAKE FURTHER PROCEEDINGS IN RESPECT TO THE ISSUES CONCERNING THE
VALIDITY OF THE LEASE AND CONTRACT.  FN3  THE PETITION FOR REHEARING
WAS DENIED.  94 F.2D 806.  CERTIORARI AND CROSS-CERTIORARI WERE SOUGHT
BY THE RESPECTIVE PARTIES AND GRANTED BY THIS COURT TO REVIEW THE
QUESTIONS PRESENTED BECAUSE OF THE ACTION OF THE CIRCUIT COURT OF
APPEALS IN REVERSING CONCLUSIONS OF THE SUPREME COURT OF HAWAII AS TO
APPLICABLE PRINCIPLES OF LAW.  FN4 

THE INCOMPETENT, MRS. CHRISTIAN, WAS BORN AT MAKAHA IN THE HAWAIIAN
ISLANDS ON DECEMBER 30, 1885.  SHE WAS BROUGHT TO HONOLULU BY HER
FATHER IN THE EARLY 1890'S.  BY 1901 THEY HAD GONE TO LIVE WITH MRS.
ANNIE HOLT KENTWELL, A COUSIN AND ONE OF THE NINE CHILDREN OF OWEN J.
HOLT.  EXCEPT FOR SHORT PERIODS WHEN THE INCOMPETENT WAS IN BOARDING
SCHOOL, THEY LIVED WITH HER CONTINUOUSLY THEREAFTER.  THE INCOMPETENT'S
GRANDFATHER, R. W. HOLT, HAD DIED IN 1862, LEAVING A WILL WHICH DEVISED
AN EQUAL UNDIVIDED PORTION OF THE REAL ESTATE INVOLVED IN THESE CASES
TO EACH OF HIS THREE SONS FOR LIFE AND THEN TO THE HEIRS OF EACH IN FEE
SIMPLE.  ONE OF THESE SONS WAS JOHN DOMINIS HOLT, THE FATHER OF THE
INCOMPETENT.  THE FATHER WAS LIVING AT THE TIME OF THE EXECUTION OF THE
DOCUMENTS HERE QUESTIONED, DYING IN 1922. 

THAT PORTION OF THE GRANDFATHER'S ESTATE INVOLVED IN THESE CASES
CONSISTED OF APPROXIMATELY FOURTEEN THOUSAND ACRES OF LAND.  AT THE
TIME OF THE FIRST TRANSACTIONS HERE CONSIDERED, ONE OF THE SONS, OWEN
J. HOLT, HAD DIED LEAVING NINE CHILDREN, EACH ENTITLED TO A ONE-TWENTY
SEVENTH INTEREST IN FEE SIMPLE IN THE TRACTS.  A SECOND SON, JAMES R.
HOLT, WAS LIVING BUT HAD CONVEYED HIS LIFE ESTATE TO HIS SON, JAMES
LAWRENCE HOLT.  THIS SON HAD ALSO PURCHASED THE CONTINGENT REMAINDER OF
HIS BROTHER, ROBERT HOLT, AND THE LIFE ESTATE OF THE INCOMPETENT'S
FATHER, JOHN DOMINIS HOLT.  SUBJECT TO WHATEVER RISK THERE WAS THAT HIS
FATHER, JAMES R. HOLT, BORN IN 1838, WOULD HAVE OTHER CHILDREN AFTER
1905, JAMES LAWRENCE HOLT WAS, IN THE YEAR LAST MENTIONED, THE OWNER OF
A ONE-THIRD INTEREST IN THE PROPERTY, PLUS THE LIFE ESTATE OF HIS
UNCLE, JOHN DOMINIS HOLT, IN ANOTHER THIRD.  JAMES LAWRENCE HOLT HAD
TRANSFERRED ALL THESE INTERESTS TO JOHN F. COLBURN AS TRUSTEE.  THE
PROPERTY IN 1905 WAS "WHOLLY UNCULTIVATED AND COVERED WITH NOXIOUS
WEEDS, INCLUDING SUCH WELL-KNOWN PESTS AS LANTANA AND KLU.  THE TAXES
AT THAT TIME WERE FOUR YEARS IN ARREARS." 

ON MARCH 17, 1905, THE ADMINISTRATOR DE BONIS NON WITH-THE-WILL
ANNEXED OF R. W. HOLT, SEVERAL OF THE HEIRS OF HIS SON, OWEN J. HOLT,
AND THE HAWAIIAN REALTY AND MATURITY COMPANY, LIMITED, EXECUTED A LEASE
TO THE WAIALUA AGRICULTURAL COMPANY, LIMITED, FOR TWENTY-FIVE YEARS AT
AN ANNUAL RENTAL OF $9,000.  THE ADMINISTRATOR WAS TREATED IN THIS
LEASE AS HAVING TITLE TO TWO-THIRDS OF THE WHOLE.  THE OWNERS OF THE
CONTINGENT REMAINDERS, ONE OF WHOM WAS THE INCOMPETENT, JOINED WITH THE
LESSORS IN COVENANTING THAT THE LESSEE WHILE PAYING SAID RENT "SHALL
PEACEABLY AND QUIETLY HOLD AND ENJOY THE USE AND POSSESSION OF SAID
DEMISED PREMISES  ...  " 

ON THE 31ST DAY OF AUGUST, 1906, THE INCOMPETENT ENTERED INTO A
CONTRACT FOR MAINTENANCE WITH HER COUSIN, ANNIE HOLT KENTWELL.  THIS
INSTRUMENT EVIDENCED AN ASSIGNMENT OF HER TITLE AND INTEREST IN AND TO
ANY AND ALL RENTS, ISSUES AND PROFITS DUE OR PAYABLE UNDER THE ABOVE
LEASE OR "BY VIRTUE OF BEING THE ONLY CHILD OF JOHN DOMINIS HOLT, THE
ELDER, AND DEVISEE UNDER THE WILL OF R. W. HOLT, DECEASED, TOGETHER
WITH ALL AND EVERY HER RIGHT TO DEMAND, RECEIVE, COLLECT AND RECEIPT
FOR ALL SUCH RENTS, ISSUES, AND PROFITS FROM WHOMSOEVER DUE DURING THE
TERM OF" HER NATURAL LIFE.  THE CONSIDERATION FOR THE CONTRACT WAS THE
ASSUMPTION BY MRS. KENTWELL OF THE SUPPORT AND MAINTENANCE OF THE
INCOMPETENT.  THE INSTRUMENT APPEARS IN A FOOTNOTE.  FN5 

A DEED WAS EXECUTED ON MAY 2, 1910, IN WHICH THE INCOMPETENT AND HER
HUSBAND, ALBERT CHRISTIAN, HER FATHER, JOHN D. HOLT, AND ANNIE HOLT
KENTWELL, AND HER HUSBAND, WERE PARTIES GRANTOR AND JAMES LAWRENCE HOLT
WAS GRANTEE.  THIS DEED IN CONSIDERATION OF $35,000 CONVEYED "ONE
UNDIVIDED THIRD PART OF INTEREST" SUBJECT TO THE GRANTEE'S INTEREST AND
TO THE LEASE OF 1905.  THE DEED EVIDENCED THE INTENTION "TO CONVEY ALL
THE INTEREST OF THE SAID GRANTORS, WHETHER PRESENT, PROSPECTIVE OR IN
REMAINDER, VESTED OR CONTINGENT, OF EVERY NAME AND DESCRIPTION IN AND
TO SAID LANDS OR WHICH THEY OR EITHER OF THEM MAY HEREAFTER ACQUIRE IN
AND TO THE SAID LANDS."  THE DEED FURTHER DECLARED THAT THE GRANTORS
ASSIGNED AND SET OVER TO THE GRANTEE "ALL CLAIMS AND DEMANDS WHICH THEY
MAY HAVE ARISING OUT OF EITHER SAID INSTRUMENTS (I. E., THE ONES
DEALING WITH JAMES LAWRENCE HOLT'S INTERESTS AND THE LEASE) OR IN ANY
OTHER WAY AGAINST THE SAID JAMES LAWRENCE HOLT, THE SAID WAIALUA
AGRICULTURAL COMPANY, LIMITED, OR THE SAID JOHN F. COLBURN, SAID
TRUSTEE," WITH EXCEPTIONS NOT MATERIAL HERE.  THE GRANTORS FURTHER
AGREED TO WARRANT THE PROPERTY CONVEYED AGAINST THE CLAIMS AND DEMANDS
OF ALL PERSONS. 

THE GRANTEE, JAMES LAWRENCE HOLT, AND HIS TRUSTEE, JOHN F. COLBURN,
CONVEYED THE INTEREST AND RIGHTS ACQUIRED BY THIS DEED TOGETHER WITH
THE OTHER ONE-THIRD UNDIVIDED INTEREST THEN BELONGING TO JAMES LAWRENCE
HOLT TO OTHER GRANTEES.  BY SUCCESSIVE CONVEYANCES THE INCOMPETENT'S
PROPERTY, COVERED BY THE DEED OF 1910, CAME INTO THE OWNERSHIP OF THE
WAIALUA AGRICULTURAL COMPANY, LIMITED, A DEFENDANT IN THE TRIAL COURT. 

BEGINNING AT ABOUT THE TIME WHEN THE TRACT CAME INTO THE POSSESSION
OF WAIALUA UNDER THE LEASE, WAIALUA ACQUIRED, THROUGH VARIOUS
CONVEYANCES, FEE SIMPLE INTERESTS OF SEVEN OF THE NINE CHILDREN OF OWEN
J. HOLT.  WHEN THIS ACTION BEGAN IN 1928, WAIALUA HELD IN FEE SIMPLE BY
COLOR OF TITLE TWENTY-FIVE TWENTY-SEVENTHS OF THE PROPERTY.  UNDER THE
LEASE OF 1905 IT BEGAN TO IMPROVE THE PROPERTY.  THE LEASE PROVIDED
THAT THE IMPROVEMENTS WOULD REVERT TO THE LESSORS.  AFTER THE
CONVEYANCES IN 1910 OF THE LIFE AND REMAINDER INTERESTS, COVERING TWO
THIRDS OF THE FEE, WAIALUA MADE FURTHER IMPORTANT INSTALLATIONS. 
BESIDES THE FOURTEEN THOUSAND ACRES OF THE HOLT LANDS, THE WAIALUA
PLANTATION INCLUDES AN ADDITIONAL THIRTY-SIX THOUSAND ACRES.  THE
PROPERTIES ARE DEVELOPED AND OPERATED AS A UNIT,  - 9,904 ACRES IN
SUGAR CANE, 11,625 ACRES IN PINEAPPLE, THE BALANCE UNCULTIVATED OR USED
FOR SERVICING THE CROP LANDS.  THE RECORD SHOWS A TOTAL EXPENDITURE OF
$630,722.12 FOR IMPROVEMENTS ON THE HOLT LANDS BETWEEN APRIL 1, 1905,
AND APRIL 5, 1928, WHEN WAIALUA WAS NOTIFIED THE DEED WAS QUESTIONED. 
IN ADDITION, RESERVOIRS, DITCHES AND OTHER IMPROVEMENTS, OFF THE HOLT
LANDS BUT NECESSARY FOR THEIR USE, HAVE COST WAIALUA $514,594.94.  NO
DESCRIPTION IS NECESSARY OTHER THAN TO SAY THAT THE IMPROVEMENTS
CONSIST OF RESERVOIRS AND DITCHES, ROADS, PUMPS, COMMUNICATION SYSTEMS,
CAMPS, OVERSEERS' HOUSES, AND THE OTHER USUAL FIXTURES AND
APPURTENANCES NECESSARY FOR THE OPERATION OF A LARGE IRRIGATED
PLANTATION. 

AFTER THE LEASE HAD BEEN IN OPERATION FOR A FEW YEARS, IT WAS FOUND
THAT SOME 6,500 ACRES OF THE HOLT LANDS WERE SUITABLE FOR THE GROWING
OF PINEAPPLES.  AFTER TRYING MULTIPLE SUBTENANCY, AN AGREEMENT WAS MADE
IN 1922 WITH THE HAWAIIAN PINEAPPLE COMPANY GIVING IT AN OPTION TO
LEASE ALL THE WAIALUA PINEAPPLE LANDS AT $15 PER ACRE.  UNDER THE
OPTION WAIALUA INVESTED OVER THREE MILLION DOLLARS IN THE PINEAPPLE
COMPANY STOCK AND THE PINEAPPLE COMPANY LEASED 6,475 ACRES OF THE HOLT
LANDS FOR SEVENTEEN AND ONE-HALF YEARS FROM JANUARY 1, 1923, TO JUNE
30, 1940, WITH OPTIONAL EXTENSION, AT A PAID-UP RENTAL, REACHED BY A 5%
DISCOUNT, OF ABOUT TWO MILLION DOLLARS. 

THE MECHANIZED SCIENTIFIC FARMING OF THE SUGAR CANE AND PINEAPPLE
LANDS WAS PROFITABLE.  THE TRIAL COURT FOUND THAT $14 PER ACRE WAS A
REASONABLE GROUND RENT FOR THE HOLT LAND USED FOR SUGAR PRODUCTION AND
THAT $15 PER ACRE WAS A REASONABLE GROUND RENT FOR THE PINEAPPLE LANDS
AFTER THE LEASE TO THE HAWAIIAN PINEAPPLE COMPANY OF JANUARY 1, 1923. 
A LESS SUM PER ACRE WAS FOUND AS A REASONABLE GROUND RENT FOR THE
PINEAPPLE LANDS PRIOR TO THAT TIME. 

IN 1926 THE WARD WAS FOR THE FIRST TIME DECLARED INCOMPETENT, AND
ANNIE HOLT KENTWELL WAS APPOINTED HER GUARDIAN IN ENGLAND.  IN 1927
MRS. KENTWELL'S BROTHER, GEORGE H. HOLT, BECAME GUARDIAN OF THE ESTATE
OF THE WARD IN HONOLULU.  THE PRESENT GUARDIAN, HERMAN V. VONHOLT,
SUCCEEDED HIM PENDENTE LITE.  ON MAY 9, 1928, A PETITION WAS FILED
AGAINST WAIALUA AND JAMES LAWRENCE HOLT IN THE CIRCUIT COURT OF THE
TERRITORY BY THE GUARDIAN ALLEGING THE INCOMPETENCY OF THE WARD ON THE
DATE OF THE EXECUTION OF THE DEED; AND THAT THE PURPORTED CONSIDERATION
WAS INADEQUATE AND WAS NEVER RECEIVED BY THE WARD.  NO COMPLAINT WAS
MADE OF THE EXECUTION OF THE LEASE OR THE CONTRACT FOR MAINTENANCE.  IT
WAS ALLEGED THAT WAIALUA INDUCED JAMES LAWRENCE HOLT, THE GRANTEE IN
THE DEED, TO SECURE THE CONVEYANCE OF THE PROPERTY THROUGH HOLT'S
CONNECTION WITH ANNIE HOLT KENTWELL, THE DOMINATING INFLUENCE OVER THE
INCOMPETENT.  THE GUARDIAN PRAYED FOR THE CANCELLATION OF THE DEED AND
AN ACCOUNTING FOR THE RENTAL VALUE OF THE UNDIVIDED ONE-THIRD INTEREST
FROM APRIL 10, 1922, THE DATE OF THE DEATH OF THE WARD'S FATHER.  JAMES
LAWRENCE HOLT APPEARED AND ADMITTED THE FACTS RELATING TO HIS PART IN
THE TRANSACTION. 

THE TRIAL COURT ON ADEQUATE EVIDENCE FOUND THAT ELIZA CHRISTIAN WAS
INCOMPETENT AT THE TIME OF THE EXECUTION OF THE DEED OF 1910; THAT HER
INCOMPETENCE HAD NOT BEEN ADJUDICATED BY A PROPER PROTECTIVE
PROCEEDING, WAS NOT "CLEARLY SELF-EVIDENT TO AN ENTIRE STRANGER" BUT
"WAS KNOWN TO JAMES L. HOLT, TO HER FATHER, JOHN DOMINIS HOLT, TO THE
KENTWELLS AND TO OTHERS WHO WERE FAMILIAR WITH HER DEPENDENCY UPON THE
KENTWELLS."  THE COURT FOUND THE PRICE INADEQUATE AND THAT IT WAS NOT
CLEARLY SHOWN THAT WAIALUA COMPANY HAD ACTUAL NOTICE OF THE
INCOMPETENCY OF ELIZA.  THE DECREE SET ASIDE THE DEED AND ENTERED AN
AWARD FOR $540,906.07 IN RENTALS, AFTER DEDUCTING THE PURCHASE PRICE OF
$30,000 AND INTEREST. 

ON APPEAL THE SUPREME COURT OF HAWAII SUSTAINED THE DETERMINATION OF
THE TRIAL COURT AS TO THE CAPACITY OF THE INCOMPETENT AT THE DATE OF
THE EXECUTION OF THE DEED, FINDING THAT "SHE WAS A CONGENITAL
IMBECILE."  IT ASSUMED THAT THE WAIALUA COMPANY "HAD NO KNOWLEDGE OF
ELIZA CHRISTIAN'S INCOMPETENCY."  IT HELD THAT THE CONSIDERATION WAS
ADEQUATE; THAT THERE WAS NO LACHES; AND THAT LIMITATION DID NOT BAR THE
PROCEEDING.  IT AFFIRMED THE ACTION OF THE TRIAL COURT IN SETTING ASIDE
THE DEED OF MAY 2, 1910, UPON A REPAYMENT TO WAIALUA BY THE INCOMPETENT
OF THE PURCHASE PRICE, WITH INTEREST FROM MAY 2, 1910, ON A BALANCE OF
EQUITIES, A CONSIDERATION OF THE ADVANTAGES TO THE INCOMPETENT AND A
SUGGESTION THAT THE CONSIDERATION DID NOT REACH THE GRANTOR.  THE
DECREE OF THE TRIAL COURT AS TO THE RECOVERY OF THE RENTALS WAS
REVERSED ON THE GROUND THAT WAIALUA HAD SUCCEEDED TO ANNIE KENTWELL'S
RIGHTS UNDER THE CONTRACT OF 1906 TO RECEIVE AND KEEP THE INCOMPETENT'S
RENTALS DURING THE TERM OF THE LEASE.  RENTALS BEYOND THE TERMINATION
OF THE LEASE WERE NOT INVOLVED IN THE FIRST APPEAL.  THE CASE WAS
THEREFORE REMANDED TO THE TRIAL COURT TO DETERMINE THE VALIDITY OF THE
LEASE OF 1905 AND THE CONTRACT OF 1906. 

ON THE REMAND THE TRIAL COURT FOUND THAT ELIZA WAS INCOMPETENT AT THE
TIME OF THE EXECUTION OF THE CONTRACT, THAT MRS. KENTWELL KNEW OF THE
INCOMPETENCY AND THAT WAIALUA WAS NOT AN INNOCENT PURCHASER FROM MRS.
KENTWELL, SINCE IT KNEW OF A SECRET PROFIT, RECEIVED BY JAMES LAWRENCE
HOLT AND JOHN F. COLBURN IN CONNECTION WITH THE VARIOUS CONVEYANCES BY
WHICH MRS. KENTWELL'S INTERESTS PASSED TO WAIALUA, "WHILE THESE TWO, AT
THE SAME TIME, KNEW OF THE MENTAL CONDITION OF ELIZA CHRISTIAN."  IN
CONSIDERING THE LEASE OF MARCH 17, 1905, THE COURT FOUND THAT ELIZA WAS
INCOMPETENT WHEN SHE GAVE HER ASSENT; BUT THAT WHILE THE "WAIALUA
COMPANY,  ...  IS NOT SHOWN TO HAVE HAD ANY KNOWLEDGE OF THIS
INCOMPETENCY," A BALANCE OF EQUITIES REQUIRED A CONCLUSION AGAINST THE
VALIDITY OF THE LEASE.  THE DECREE AGAIN SET ASIDE THE DEED OF MAY 2,
1910; AWARDED RENTALS IN THE TOTAL SUM OF $606,785.75; ANNULLED THE
LEASE OF MARCH 17, 1905, IN SO FAR AS IT AFFECTED THE INCOMPETENT;
ANNULLED THE CONTRACT FOR SUPPORT AND MAINTENANCE OF AUGUST 31, 1906,
AND GAVE TO WAIALUA THE RIGHT TO CONTINUE IN THE EXCLUSIVE USE AND
OCCUPATION OF RESERVOIRS, PUMPING STATIONS, IRRIGATION DITCHES AND
OTHER IMPROVEMENTS UNTIL PARTITION OR OTHER ARRANGEMENTS WERE AGREED
UPON.  APPEAL WAS TAKEN FROM THIS DECREE. 

IN ITS SECOND HEARING, THE SUPREME COURT OF HAWAII MAINTAINED ITS
FINDING AS TO THE INCOMPETENCY OF ELIZA AT THE TIME OF THE EXECUTION OF
THE DEED OF MAY 2, 1910.  IT ASSUMED THAT THE TRIAL COURT WAS CORRECT
IN FINDING ELIZA INCOMPETENT AT THE TIME OF THE EXECUTION OF THE LEASE
OF 1905 AND THE CONTRACT FOR MAINTENANCE OF 1906, AND ACCEPTED THE
FINDING OF THE TRIAL COURT THAT WAIALUA WAS NOT SHOWN TO HAVE ANY
KNOWLEDGE OF ELIZA'S INCOMPETENCY AT THE TIME IT TOOK THE LEASE OF
1905.  IT DETERMINED THAT THE DEED OF MAY 2, 1910, PASSED THE CONTRACT
RIGHTS ASSIGNED TO ANNIE BY ELIZA AND THAT WAIALUA SUCCEEDED TO THESE
RIGHTS AS AN INNOCENT PURCHASER FOR VALUE.  IT FURTHER HELD THAT THE
INCOMPETENT RECEIVED AN ADEQUATE CONSIDERATION FOR THE LEASE OF 1905. 
IN EFFECT IT HELD THAT THE ASSIGNMENT OF 1906 WAS ALSO FOR AN ADEQUATE
CONSIDERATION ALREADY LARGELY RECEIVED.  THE CONTRACT "WAS BENEFICIAL
TO ELIZA."  "ELIZA HAD NO INCOME OR OTHER MEANS OF SUPPORT."  "IN
ENTERING INTO THIS CONTRACT (1906) NEITHER OF THE PARTIES KNEW OR COULD
KNOW HOW LONG A PERIOD OF TIME WOULD ELAPSE BEFORE ELIZA WOULD BECOME
ENTITLED TO A SHARE OF THE RENTS UNDER THE LEASE  ... "  FN6 

IN THE FINAL DECREE THE DEED OF MAY 2, 1910, WAS SET ASIDE; THE LEASE
OF 1905 AND THE CONTRACT OF 1906 WERE SUSTAINED; THE INCOMPETENT WAS
REQUIRED TO PAY OR SECURE THE PAYMENT TO WAIALUA OF THE PURCHASE PRICE;
WAIALUA WAS REQUIRED TO CONVEY TO THE INCOMPETENT THE ONE-THIRD
INTEREST IN FEE SIMPLE WHICH PASSED BY THE DEED, WITH RESERVATIONS BY
WAIALUA OF CERTAIN PORTIONS OCCUPIED BY ITS IMPROVEMENTS AND CERTAIN
LANDS AND RIGHTS OF WAY FOR DITCHES, PIPES, SERVICE, AND ROADS
NECESSARY TO MAINTAIN AND DISTRIBUTE WATER AND OPERATE THE PLANTATION,
AND WITH PROVISIONS TO INSURE TO THE INCOMPETENT RIGHTS OF WAY FOR THE
OPERATION OF HER PROPERTIES, IF AND WHEN THE SAME WERE PARTITIONED AND
SET OFF. 

WE MIGHT SUMMARIZE THE FACTUAL SITUATION ARISING FROM THE TWO TRIALS
IN THE LOWER COURT AND THE TWO REVIEWS IN THE SUPREME COURT OF HAWAII
AS FOLLOWS:  ELIZA CHRISTIAN WAS FOUND OR ASSUMED TO HAVE BEEN
INCOMPETENT AT THE TIME OF THE EXECUTION OF THE LEASE OF 1905, THE
CONTRACT OF 1906 AND THE DEED OF 1910.  WAIALUA WAS NOT FOUND TO HAVE
KNOWN OF THIS INCOMPETENCY AT THE TIME IT RECEIVED ANY RIGHTS FLOWING
FROM ANY OF THE INSTRUMENTS.  IT WAS DETERMINED THAT THE STATUS QUO WAS
RESTORED IN SO FAR AS THE DEED WAS CONCERNED BY THE REPAYMENT OF THE
PURCHASE PRICE WITH INTEREST AND THAT THE HOLT LAND COULD BE SEPARATED
FROM THE REST OF THE PLANTATION WITH PROPER ADJUSTMENT FOR
IMPROVEMENTS. 

UPON THESE FACTS THE SUPREME COURT OF HAWAII DETERMINED APPLICABLE
PRINCIPLES OF LAW.  THOSE CONSIDERED BY THE CIRCUIT COURT OF APPEALS
WERE THE FOLLOWING: 

I. THE RULE OF LAW IN HAWAII IS THAT THE DEED, LEASE OR CONTRACT OF
AN INCOMPETENT EXECUTED PRIOR TO A JUDICIAL DECLARATION OF INCOMPETENCY
IS VOIDABLE.  A MERE SHOWING OF INCOMPETENCY WILL NOT AVOID IT.  IN
DETERMINING WHETHER IT SHOULD BE CANCELED, "ALL OF THE EQUITIES MUST BE
CONSIDERED, INCLUDING THOSE IN FAVOR OF THE GRANTEE OR LESSEE AS WELL
AS THOSE IN FAVOR OF THE GRANTOR OR LESSOR."  FN7 

"IT IS OUR VIEW OF THE LAW THAT A LEASE MADE BY AN INCOMPETENT, WHO
HAS NOT BEEN JUDICIALLY DECLARED INSANE, TO A LESSEE WITHOUT KNOWLEDGE
OF THE INCOMPETENCY, FOR AN ADEQUATE RENTAL AND UPON OTHER TERMS THAT
ARE REASONABLE AND FAIR, WHICH IS BENEFICIAL TO THE INCOMPETENT AND IS
IN EFFECT A PROVISION IN FAVOR OF THE INCOMPETENT FOR NECESSARIES FOR
HIS SUSTENANCE AND COMFORT,  - A LEASE WHICH HAS BEEN FULLY PERFORMED
AND IS ACCOMPANIED BY NO FRAUD OR OTHER CIRCUMSTANCES OF INEQUITY TO
THE INCOMPETENT,  - SHOULD NOT BE CANCELED,  - EVEN THOUGH THE LESSEE
CAN BE RESTORED TO THE STATUS QUO ANTE."  FN8 

IN ITS FIRST OPINION THE COURT HAD SAID:  "WHEN THE GRANTEE CAN BE
RESTORED TO THE POSITION IT OCCUPIED IMMEDIATELY PRIOR TO THE
CONVEYANCE, THE DEED OF THE INCOMPETENT SHOULD BE CANCELED EVEN THOUGH
IT WAS TAKEN IN IGNORANCE OF THE INCOMPETENCY AND EVEN THOUGH THE
CONSIDERATION PAID WAS ADEQUATE."  FN9 

IT DID NOT REFER IN THE SECOND OPINION TO ANY CONFLICT BETWEEN THE
STATEMENTS BUT FOUND THE DISTINCTION BETWEEN THE CANCELED DEED AND THE
CONFIRMED LEASE AND CONTRACT, IN THE RELATIVE ADVANTAGES TO THE
INCOMPETENT.  FN10 

II.  THE CONSTRUCTION OF THE CONTRACT FOR MAINTENANCE OF 1906  FN11
WAS THAT IT COVERED RENTS, ISSUES AND PROFITS, PAYABLE TO THE
INCOMPETENT NOT ONLY FROM THE LESSEE UNDER THE 1905 LEASE BUT ALSO "THE
RENTS ACCRUING THEREAFTER FROM WHATEVER SOURCE."  FN12  THIS RULING WAS
EMBODIED IN THE LANGUAGE OF THE FINAL DECREE SET OUT IN THE NOTE
BELOW.  FN13 

"BY THE DEED OF MAY 2, 1910, ANNIE KENTWELL, A MENTALLY COMPETENT
PERSON, TRANSFERRED ALL OF HER RIGHTS UNDER THE INSTRUMENT OF 1906 TO"
WAIALUA.  FN14 

III.  A COURT OF EQUITY MAY PERMIT A GRANTEE WITHOUT NOTICE OF THE
INCOMPETENCY, WHO HAS PLACED IMPROVEMENTS ON THE LAND OF AN INCOMPETENT
IN RELIANCE ON A CONVEYANCE SUBSEQUENTLY CANCELED, TO RESERVE THE
IMPROVEMENTS TOGETHER WITH SUCH LAND AND RIGHTS OF WAY OVER THE
INCOMPETENT'S LANDS AS MAY BE NECESSARY FOR THEIR PROPER USE UNDER
SUITABLE CONDITIONS TO BE PRESCRIBED BY THE COURT.  FN15 

WHILE THE CIRCUIT COURT OF APPEALS ACCEPTED THE FINDINGS OF FACT IN
THE TRIAL AND APPELLATE COURTS OF HAWAII,  FN16  IT TOOK DIRECT ISSUE
WITH SOME OF THE LEGAL CONCLUSIONS OF THE SUPREME COURT OF THE
TERRITORY AND HELD AS FOLLOWS: 

I. THE GENERAL RULE OF LAW IS THAT THE DEED, LEASE OR INDENTURE  FN17
OF AN INCOMPETENT, EXECUTED PRIOR TO A JUDICIAL DECLARATION TO THAT
EFFECT, IS VOID.  "RELIEF AGAINST SUCH A CONTRACT SHOULD NOT BE
GRANTED, HOWEVER, ON PROOF OF INCOMPETENCY ONLY."  "SO, IN THE CASE OF
A CONTRACT MADE BY AN INCOMPETENT, AFTER PROOF OF THE INCOMPETENCY,
RELIEF WILL BE GRANTED AGAINST THE CONTRACT, OR REFUSED, DEPENDING UPON
THE SITUATION OF THE PARTIES AT THE TIME RELIEF IS ASKED; IN OTHER
WORDS, THE SITUATION OF THE PARTIES IS THE CONTROLLING FACTOR."  FN18
"THIS  ...  DOES NOT MEAN THAT THE COURT SHOULD BALANCE ALL EQUITIES OF
THE PARTIES, AS WAS DONE BY THE TRIAL COURT."  FN19  "THE RULE AS
STATED MEANS THAT IF THE PARTIES CAN BE PLACED IN STATU QUO, THE RELIEF
WILL BE GRANTED."  FN20  THIS RULE WAS HELD APPLICABLE TO HAWAII. 

APPARENTLY IN RELIANCE ON THIS RULE, THE LOWER COURT DETERMINED
RELIEF SHOULD BE GRANTED AGAINST THE LEASE AS TO THE LESSOR, ELIZA
CHRISTIAN, OR AGAINST THE CONTRACT OR AGAINST BOTH, IF SHE WERE
INCOMPETENT AT THE TIME OF THE EXECUTION.  FN21  THE TERRITORIAL
SUPREME COURT HAD DENIED RELIEF "IRRESPECTIVE OF THE SUBJECT OF STATUS
QUO" AND OF COMPETENCY.  FN22 

II.  THE CONSTRUCTION OF THE CONTRACT OF MAINTENANCE OF 1906 IS THAT
THE INCOMPETENT ASSIGNED TO MRS. KENTWELL HER RENTS, ISSUES AND PROFITS
UNDER THE LEASE OF 1905 ONLY; THAT LATER RENTS, ISSUES AND PROFITS WERE
RETAINED.  FN23 

III.  THE ACTION OF THE TERRITORIAL SUPREME COURT, IN ADJUSTING
EQUITIES AS TO IMPROVEMENTS BY CROSS CONVEYANCES BETWEEN THE
INCOMPETENT AND THE SUBSEQUENT GRANTEES, IS INCORRECT. 

"HERE, IF THE COMPANY IS ENTITLED TO AN ALLOWANCE FOR IMPROVEMENTS AT
ALL, IT IS ENTITLED TO AN ALLOWANCE OF ONE-THIRD OF THE ENHANCED VALUE
OF THE LAND, DUE SOLELY TO THE ADDITION OF IMPROVEMENTS SINCE MAY 2,
1910.  THAT AMOUNT MAY BE MADE A LIEN AGAINST THE LAND, OR MAY BE SET
OFF AGAINST THE RENTALS, IF ANY, WHICH ARE FOUND DUE TO THE WARD." 
FN24 

STATUS OF THE SUPREME COURT OF HAWAII.  - THE LOWER COURT ACQUIRED
JURISDICTION OF THE APPEALS UNDER JUDICIAL CODE, SEC. 128.  FN25  WHEN
THE HAWAIIAN ORGANIC ACT WAS PASSED IN 1900, NO PROVISION WAS MADE FOR
APPEALS FROM THE TERRITORIAL SUPREME COURT.  IN 1905, FOR MATTERS
INVOLVING MORE THAN $5,000, A DIRECT APPEAL TO THIS COURT WAS
PROVIDED.  FN26  IN 1911 REVIEW OF THE TERRITORIAL SUPREME COURT WAS
PLACED UPON THE SAME BASIS AS REVIEW OF THE HIGHEST COURT OF A STATE,
WITH A CONTINUED RIGHT OF REVIEW, GENERALLY, WHERE THE AMOUNT INVOLVED
$5,000.  FN27 CERTIORARI FROM THIS COURT WAS PROVIDED BY THE ACT OF
JANUARY 28, 1915, AND FOR THE FIRST TIME REVIEW BY CIRCUIT COURTS OF
APPEALS FOR CASES INVOLVING $5,000 OR OVER.  FN28  IN EACH OF THESE
SUCCESSIVE ENACTMENTS THE CONGRESS HAS RECOGNIZED, TO SOME DEGREE, THE
AUTONOMOUS POSITION OF THE SUPREME COURT OF THE TERRITORY. 

THIS RECOGNITION IS NATURAL.  THE TERRITORIAL COURT HAS GENERAL
APPELLATE JURISDICTION OF CASES INVOLVING THE MORES AND STATUTES OF AN
ARCHIPELAGO, THE FIRST KNOWN COMPILATION OF WHOSE LAWS APPEARED IN
1842.  FN29  ISOLATED UNTIL THE DAY OF ELECTRICAL COMMUNICATION AND
AERIAL TRANSPORTATION FROM CONTINUOUS CONTACT WITH OTHER PEOPLES, AND
INHABITED BY DIVERSE STOCKS OF OCEANICA, ASIA, EUROPE AND AMERICA, IT
DEVELOPED, AS AN INDEPENDENT KINGDOM, A JURISPRUDENCE ADAPTED TO ITS
NEEDS.  THE CONSTITUTION OF KAMEHAMEHA III ESTABLISHED A SUPREME COURT
OF THE KINGDOM IN 1840 AND DEFINED ITS JURISDICTION.  FN30  THE COMMON
LAW AND THE CIVIL LAW WERE SOURCES OF INFORMATION BUT NOT OF
AUTHORITY.  FN31  UNTIL 1892,  FN32  LACUNAE WERE FILLED BY THE
JUDGES.  FN33  THE LAWS DEVELOPED WERE LARGELY LEFT IN FORCE BY THE
ORGANIC ACT.  FN34  THESE NOW INCLUDE A DECLARATORY STATUTE ON THE
SOURCE OF HAWAIIAN LAW.  FN35  THIS JUDICIAL TRADITION GIVES PRESENT
SUBSTANCE TO THE RULE OF THIS COURT THAT DEFERENCE WILL BE PAID THE
UNDERSTANDING OF TERRITORIAL COURTS ON MATTERS OF LOCAL CONCERN.  FN36 

REVIEW OF ITS DECISIONS.  - WHILE THE DETERMINATIONS MADE BY THE
TERRITORIAL COURT UPON THE VALIDITY OF INSTRUMENTS EXECUTED BY
INCOMPETENTS, THE INTERPRETATION OF THE CONTRACT OF AN INCOMPETENT, AND
THE ADJUSTMENTS OF EQUITIES CONCERNING IMPROVEMENTS AFTER CANCELLATION
OF A CONVEYANCE, PARTAKE OF GENERAL LAW, AS WELL AS OF LOCAL LAW,  FN37
WE SEE NO REASON FOR NOT APPLYING THE RULE AS TO LOCAL MATTERS TO
THESE CIRCUMSTANCES.  WHILE THE 34TH SECTION OF THE JUDICIARY ACT IS
NOT APPLICABLE TO TERRITORIES, THE ARGUMENTS OF POLICY IN FAVOR OF
HAVING THE STATE COURTS DECLARE THE LAW OF THE STATE ARE APPLICABLE TO
THE QUESTION OF WHETHER OR NOT TERRITORIAL COURTS SHOULD DECLARE THE
LAW OF THE TERRITORIES WITH THE LEAST POSSIBLE INTERFERENCE N38.  IT IS
TRUE THAT UNDER THE APPEAL STATUTE THE LOWER COURT HAD COMPLETE POWER
TO REVERSE ANY RULING OF THE TERRITORIAL COURT ON LAW OR FACT; FN39
BUT WE ARE OF THE OPINION THAT THIS POWER SHOULD BE EXERCISED ONLY IN
CASES OF MANIFEST ERROR.  THE DIFFERENTIATIONS, IMPLICIT AND EXPLICIT,
IN THE OPINIONS OF THE SUPREME COURT OF HAWAII, AS TO THE RULES OF LAW
APPLICABLE TO THE PROCEEDINGS TO SET ASIDE THE DEED OF 1910 AND THOSE
APPLICABLE TO SIMILAR PROCEEDINGS AS TO THE LEASE OF 1905 AND THE
CONTRACT FOR MAINTENANCE OF 1906, DO NOT FURNISH OCCASION FOR REVERSAL
BY THE LOWER COURT.  FN40  IN SO FAR AS THE DECISIONS OF THE SUPREME
COURT OF HAWAII ARE IN CONFORMITY WITH THE CONSTITUTION AND APPLICABLE
STATUTES OF THE UNITED STATES AND ARE NOT MANIFESTLY ERRONEOUS IN THEIR
STATEMENT OR APPLICATION OF GOVERNING PRINCIPLES, THEY ARE TO BE
ACCEPTED AS STATING THE LAW OF THE TERRITORY.  UNLESS THERE IS CLEAR
DEPARTURE FROM ORDINARY LEGAL PRINCIPLES, THE PREFERENCE OF A FEDERAL
COURT AS TO THE CORRECT RULE OF GENERAL OR LOCAL LAW SHOULD NOT BE
IMPOSED UPON HAWAII. 

DECISION OF THE SUPREME COURT OF HAWAII.  - TO ADOPT THE LEGAL
PRINCIPLES APPLIED BY THE TERRITORIAL SUPREME COURT IN THESE CASES AS
RULES OF DECISION IN THAT JURISDICTION, OR TO CONSTRUE INSTRUMENTS AS
IT INTERPRETED THEM, IS NOT MANIFEST ERROR. 

WHATEVER MAY BE THE BETTER RULE AS TO THE VOIDABLENESS OF THE
TRANSFER DOCUMENTS OF AN INCOMPETENT, IT IS NOT CLEARLY WRONG TO SELECT
THE ONE HERE CHOSEN.  FN41 

THE CONSTRUCTION OF THE CONTRACT OF MAINTENANCE BY THE TERRITORIAL
COURT OF LAST RESORT IS LIKEWISE DEFENSIBLE.  THE LOWER COURT, ITSELF,
SAID THE ASSIGNMENT OF RENTS DUE TO THE INCOMPETENT "BY VIRTUE OF BEING
...  DEVISEE UNDER THE WILL  ...  DURING THE TERM OF THE NATURAL LIFE
OF HER" THE INCOMPETENT (SEE NOTE 5, SUPRA), MIGHT MEAN "THAT THE WARD
ASSIGNED ALL RENTS INCLUDING THOSE TO WHICH SHE MIGHT BE ENTITLED UNDER
THE LEASE TO THE COMPANY AND ANY OTHER LEASE."  FN42  THE MINORITY
OPINION REACHED THIS CONCLUSION.  FN43  ALTHOUGH ON CONSIDERATION OF
THE ENTIRE CONTRACT THE MAJORITY REACHED A DIFFERENT ANSWER, THE
INTERPRETATION OF THE SUPREME COURT OF HAWAII IS NOT MANIFESTLY
ERRONEOUS.  NOR DO WE SEE ANY OCCASION TO REEXAMINE THE INTERPRETATION
THAT THE DEED OF MAY 2, 1910(THE RELEVANT PORTIONS OF WHICH ARE SET OUT
ABOVE, ANTE, P. 96), CONVEYED THE RENTS, ISSUES AND PROFITS, ASSIGNED
TO MRS. KENTWELL. 

THE LOWER COURT CONSIDERED IT NECESSARY TO APPLY HERE THE RULE THAT
THE OCCUPANT OF THE LAND OF ANOTHER WAS ENTITLED TO BE PAID, AS
COMPENSATION FOR IMPROVEMENTS, A SUM EQUAL TO THE AMOUNT BY WHICH THE
IMPROVEMENTS INCREASED THE VALUE OF THE PROPERTY, NOT EXCEEDING THE
COST.  IT IS NOT ALWAYS NECESSARY SO TO PENALIZE AN INNOCENT IMPROVER. 
IF HE IS A TENANT IN COMMON, PARTITION MAY BE MADE SO AS TO SET APART
TO HIM THE PORTION IMPROVED.  FN44  UNDER THE CIRCUMSTANCES HERE
DISCLOSED, THE ACTION OF THE HAWAIIAN COURT IN AWARDING TO WAIALUA THE
REALTY AND IMPROVEMENTS DESCRIBED IN THE DECREE NEED NOT BE SET ASIDE. 
DECREE OF THE LOWER COURT REVERSED AND DECREE OF THE SUPREME COURT OF
HAWAII AFFIRMED.  REVERSED. 

FN1  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 31 HAW.  817; 33 HAW. 
34. 

FN2  WAIALUA AGRICULTURAL CO. V. CHRISTIAN, 52 F.2D 847. 

FN3  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603.    FN4
MATOS V. ALONSO HERMANOS, 300 U.S. 429. 

FN5  "THIS INDENTURE - MADE THIS 31ST DAY OF AUGUST A.D. 1906, BY AND
BETWEEN - ELIZA R. P. CHRISTIAN - (THE ONLY CHILD AND HEIR OF JOHN
DOMINIS HOLT, THE ELDER) OF HONOLULU, ISLAND AND COUNTY OF OAHU,
TERRITORY OF HAWAII, OF THE FIRST PART, AND - ANNIE HOLT KENTWELL - OF
THE SAME PLACE, PARTY OF THE SECOND PART. 

"WITNESSETH - WHEREAS THE PARTY OF THE FIRST PART HAS FOR MANY YEARS
LAST PAST BEEN SUPPORTED AND MAINTAINED AT THE HOME OF THE PARTY OF THE
SECOND PART, AND AT THE COST AND EXPENSE OF THE SAID PARTY OF THE
SECOND PART, AND 

"WHEREAS - THE SAID FIRST PARTY IS THE ONLY CHILD AND HEIR OF JOHN
DOMINIS HOLT, THE ELDER, BEING ALSO A DEVISEE UNDER THE WILL OF R. W.
HOLT, DECEASED, AND IS ENTITLED IN EXPECTANCY TO A CERTAIN UNDIVIDED
INTEREST OR MOIETY IN CERTAIN LANDS SITUATE AT WAIALUA, OAHU, NOW
LEASED TO THE WAIALUA AGRICULTURAL COMPANY, LIMITED, BY LEASE DATED THE
17TH DAY OF MARCH, 1905, AND RECORDED IN THE HAWAIIAN REGISTRY OF DEEDS
IN LIBER , FOLIO, AND 

"WHEREAS - BY VIRTUE OF BEING SUCH HEIR OF JOHN DOMINIS HOLT, THE
ELDER, AND SUCH DEVISEE UNDER THE WILL OF R. W. HOLT, DECEASED,
AFORESAID, SHE, THE SAID PARTY OF THE FIRST PART, SHALL UPON THE DEATH
OF HIM, THE SAID JOHN DOMINIS HOLT, THE ELDER, BE ENTITLED TO HER SHARE
OF THE RENTS RESERVED IN SAID LEASE AFORESAID, WHICH SHARE OF SAID
RENTS AFORESAID IS NOW ENJOYED BY HER FATHER, THE SAID JOHN DOMINIS
HOLT, THE ELDER, AND 

"WHEREAS - THE PARTY OF THE SECOND PART HAS AGREED TO SUPPORT AND TO
MAINTAIN THE PARTY OF THE FIRST PART FOR AND DURING THE PERIOD OF THE
NATURAL LIFE OF HER, THE SAID PARTY OF THE FIRST PART, 

"NOW THEREFORE THIS INDENTURE WITNESSETH - THAT THE SAID - ELIZA R.
P. CHRISTIAN - IN CONSIDERATION OF THE PREMISES AND OF ONE DOLLAR TO
HER IN HAND PAID BY - ANNIE HOLT KENTWELL - OF HONOLULU AFORESAID, THE
RECEIPT WHEREOF IS HEREBY DULY CONFESSED AND ACKNOWLEDGED AND FOR OTHER
AND VALUABLE CONSIDERATION TO THE SAID - ELIZA R. P. CHRISTIAN - MOVING
FROM SAID - ANNIE HOLT KENTWELL - , SHE, THE SAID - ELIZA R. P.
CHRISTIAN - , DOES HEREBY GIVE, SELL, ASSIGN, RELEASE, TRANSFER AND SET
OVER UNTO THE SAID - ANNIE HOLT KENTWELL - , HER HEIRS, EXECUTORS AND
ADMINISTRATORS, ALL HER TITLE AND INTEREST IN AND TO ANY AND ALL RENTS,
ISSUES AND PROFITS TO WHICH SHE MAY HEREAFTER BE ENTITLED OR WHICH MAY
BE DUE AND PAYABLE TO HER BY, THROUGH OR UNDER THE LEASE TO THE WAIALUA
AGRICULTURAL COMPANY, LIMITED, DATED THE 17TH DAY OF MARCH, 1905, AND
RECORDED IN SAID LIBER    FOLIO    OR BY VIRTUE OF BEING THE ONLY CHILD
OF JOHN DOMINIS HOLT, THE ELDER, AND DEVISEE UNDER THE WILL OF R. W.
HOLT, DECEASED, TOGETHER WITH ALL AND EVERY HER RIGHT TO DEMAND,
RECEIVE, COLLECT AND RECEIPT FOR ALL SUCH RENTS, ISSUES AND PROFITS
FROM WHOMSOEVER DUE DURING THE TERM OF THE NATURAL LIFE OF HER, THE
SAID - ELIZA R. P. CHRISTIAN - . 

"AND - IT IS EXPRESSLY AGREED AND UNDERSTOOD BETWEEN AND BY THE
PARTIES HERETO THAT THE PARTY OF THE SECOND PART SHALL SUPPORT AND
MAINTAIN HER, THE PARTY OF THE FIRST PART, FOR AND DURING THE NATURAL
LIFE OF SAID FIRST PART. 

"AND - IT IS FURTHER AGREED AND UNDERSTOOD BY AND BETWEEN THE PARTIES
HERETO THAT IN CASE THE PARTY OF THE FIRST PART SHALL SURVIVE THE PARTY
OF THE SECOND PART, THE HEIRS OF SAID SECOND PARTY SHALL BE ENTITLED TO
PERFORM THE COVENANT OF THIS AGREEMENT ON THE PART OF SAID SECOND PARTY
TO BE KEPT AND PERFORMED, AND THEY SHALL DURING THE LIFE OF SAID FIRST
PARTY BE ENTITLED TO THE BENEFIT OR BENEFITS THEREOF. 

"IN WITNESS WHEREOF - THE SAID - ELIZA R. P. CHRISTIAN - AND - ANNIE
HOLT KENTWELL - HAVE HEREUNTO SET THEIR HANDS AND SEALS THE DAY AND
YEAR FIRST ABOVE WRITTEN. 

          ELIZA R. P. CHRISTIAN

            ANNIE HOLT KENTWELL" 

FN6  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 33 HAW.  34, 51. 

FN7  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 33 HAW.  34, 40. 

FN8  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 33 HAW.  34, 43. 

FN9  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 31 HAW.  817, 888. 

FN10  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 33 HAW.  34, 53. 

FN11  FOOTNOTE 5. 

FN12  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 33 HAW.  34, 52. 

FN13  "THAT SAID INSTRUMENT DATED AUGUST 31, 1906, REFERRED TO IN
PARAGRAPH VII HEREOF, CONVEYED ALL RENTS, ISSUES AND PROFITS FROM THE
LAND DESCRIBED IN THE DEED OF MAY 2, 1910  ...  , WHICH HAVE ACCRUED OR
WILL ACCRUE TO ELIZA R. P. CHRISTIAN, WHETHER UNDER THE LEASE DATED
MARCH 17, 1905,  ...  OR OTHERWISE, AND FROM WHOMSOEVER DUE, FROM
AUGUST 31, 1906, THE DATE OF SAID INSTRUMENT, UNTIL THE END OF THE
NATURAL LIFE OF HER, THE SAID ELIZA R. P. CHRISTIAN, AND THAT THE
RESPONDENT-APPELLANT, WAIALUA AGRICULTURAL COMPANY, LIMITED, IS THE
OWNER OF ALL SAID RENTS, ISSUES AND PROFITS SO CONVEYED; PROVIDED,
HOWEVER, WAIALUA AGRICULTURAL COMPANY, LIMITED, SHALL PAY ALL TAXES AND
LAWFUL ASSESSMENTS UPON OR AGAINST SAID LAND DURING THE LIFETIME OF THE
SAID ELIZA R. P. CHRISTIAN." 

FN14  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 33 HAW.  34, 52. 

FN15  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 33 HAW.  34, 57. 

FN16  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603, 609, 612;
94 F.2D 806, 807. 

FN17  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603, 611. 

FN18  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603, 610. 

FN19  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603, 611. 

FN20  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603, 612. 

FN21  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603, 613. 

FN22  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 33 HAW.  34, 63. 

FN23  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603, 615. 

FN24  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603, 617. 

FN25  "FOURTH.  IN THE SUPREME COURTS OF THE TERRITORY OF HAWAII AND
OF PORTO RICO, IN ALL CIVIL CASES, CIVIL OR CRIMINAL, WHEREIN THE
CONSTITUTION OR A STATUTE OR TREATY OF THE UNITED STATES OR ANY
AUTHORITY EXERCISED THEREUNDER IS INVOLVED; IN ALL OTHER CIVIL CASES
WHEREIN THE VALUE IN CONTROVERSY, EXCLUSIVE OF INTEREST AND COSTS,
EXCEEDS $5,000, AND IN ALL HABEAS CORPUS PROCEEDINGS."  43 STAT. 936. 

FN26  33 STAT. 1035. 

FN27  36 STAT. 1158. 

FN28  38 STAT. 804. 

FN29  PREFACE TO THE TRANSLATION OF THE CONSTITUTION AND LAWS OF THE
HAWAIIAN ISLANDS. 

FN30  "THEIR BUSINESS SHALL BE TO SETTLE ALL CASES OF DIFFICULTY
WHICH ARE LEFT UNSETTLED BY THE TAX OFFICERS AND COMMON JUDGES.  THEY
SHALL GIVE A NEW TRIAL ACCORDING TO THE CONDITIONS OF THE LAW.  THEY
SHALL GIVE PREVIOUS NOTICE OF THE TIME FOR HOLDING COURTS, IN ORDER
THAT THOSE WHO ARE IN DIFFICULTY MAY APPEAL.  THE DECISION OF THESE
SHALL BE FINAL.  THERE SHALL BE NO FURTHER TRIAL AFTER THEIRS.  LIFE,
DEATH, CONFINEMENT, FINE, AND FREEDOM FROM IT, ARE ALL IN THEIR HANDS,
AND THEIR DECISIONS ARE FINAL."  TRANSLATION OF THE CONSTITUTION AND
LAWS OF THE HAWAIIAN ISLANDS, 1842, P. 20. 

FN31  "THE REASONINGS AND ANALOGIES OF THE COMMON LAW, AND OF THE
CIVIL LAW, MAY IN LIKE MANNER BE CITED AND ADOPTED BY ANY SUCH COURT,
SO FAR AS THEY ARE DEEMED TO BE FOUNDED IN JUSTICE, AND NOT AT CONFLICT
WITH THE LAWS AND USAGES OF THIS KINGDOM."  STATUTE LAWS OF THE
HAWAIIAN ISLANDS, 1845-47, VOL. II, P. 5. 

FN32  HALL V. KENNEDY, 27 HAW.  626, 629. 

FN33  "SECTION 14.  THE JUDGES HAVE EQUITABLE AS WELL AS LEGAL
JURISDICTION, AND IN ALL CIVIL MATTERS, WHERE THERE IS NO EXPRESS LAW,
THEY ARE BOUND TO PROCEED AND DECIDE ACCORDING TO EQUITY, APPLYING
NECESSARY REMEDIES TO EVILS THAT ARE NOT SPECIFICALLY CONTEMPLATED BY
LAW, AND CONSERVING THE CAUSE OF MORALS AND GOOD CONSCIENCE.  TO DECIDE
EQUITABLY, AN APPEAL IS TO BE MADE TO NATURAL LAW AND REASON, OR TO
RECEIVED USAGE, AND RESORT MAY ALSO BE HAD TO THE LAWS AND USAGES OF
OTHER COUNTRIES."  HAWAII CIVIL CODE, 1859, P. 7. 

FN34  "SEC.  1.  THAT THE PHRASE 'THE LAWS OF HAWAII,' AS USED IN
THIS ACT WITHOUT QUALIFYING WORDS, SHALL MEAN THE CONSTITUTION AND LAWS
OF THE REPUBLIC OF HAWAII, IN FORCE ON THE TWELFTH DAY OF AUGUST,
EIGHTEEN HUNDRED AND NINETY-EIGHT, AT THE TIME OF THE TRANSFER OF THE
SOVER-EIGNTY OF THE HAWAIIAN ISLANDS TO THE UNITED STATES OF AMERICA." 
31 STAT. 141. 

"SEC. 6.  THAT THE LAWS OF HAWAII NOT INCONSISTENT WITH THE
CONSTITUTION OR LAWS OF THE UNITED STATES OR THE PROVISIONS OF THIS ACT
SHALL CONTINUE IN FORCE, SUBJECT TO REPEAL OR AMENDMENT BY THE
LEGISLATURE OF HAWAII OR THE CONGRESS OF THE UNITED STATES."  31 STAT.
142. 

FN35  "COMMON LAW APPLIES EXCEPT WHEN.  THE COMMON LAW OF ENGLAND, AS
ASCERTAINED BY ENGLISH AND AMERICAN DECISIONS, IS DECLARED TO BE THE
COMMON LAW OF THE TERRITORY OF HAWAII IN ALL CASES, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED BY THE CONSTITUTION OR LAWS OF THE UNITED STATES, OR
BY THE LAWS OF THE TERRITORY, OR FIXED BY HAWAIIAN JUDICIAL PRECEDENT,
OR ESTABLISHED BY HAWAIIAN USAGE; PROVIDED, HOWEVER, THAT NO PERSON
SHALL BE SUBJECT TO CRIMINAL PROCEEDINGS EXCEPT AS PROVIDED BY THE
WRITTEN LAWS OF THE UNITED STATES OR OF THE TERRITORY."  REVISED LAWS
OF HAWAII, 1935, CH. 1, SEC. 1, P. 73. 

CF. KAKE V. HORTON, 2 HAW.  209; REX V. TIN AH CHIN, 3 HAW.  90, 95. 

FN36  MATOS V. ALONSO HERMANOS, 300 U.S. 429, 430, 432; KEALOHA V.
CASTLE, 210 U.S. 149, 154; LEWERS & COOKE V. ATCHERLY, 222 U.S. 285,
293; EWA PLANTATION CO. V. WILDER, 289 F. 664, 669. 

FN37  BLACK & WHITE TAXI CO. V. BROWN & YELLOW TAXI CO., 276 U.S.
518, 526, 530. 

FN38  CF. SWIFT V. TYSON, 16 PET. 1; ERIE R. CO. V. TOMPKINS, 304
U.S. 64; LEWERS & COOKE V. ATCHERLY, 222 U.S. 285, 294. 

FN39  CF. PHILIPPINE SUGAR CO. V. PHILIPPINE ISLANDS, 247 U.S. 385,
390. 

FN40  CF. SIOUX REMEDY CO. V. COPE, 235 U.S. 197, 201; FIDELITY &
COLUMBIA TRUST CO. V. LOUISVILLE, 245 U.S. 54, 59. 

FN41  2 BLACK, RESCISSION AND CANCELLATION (2D ED.), SECS. 255-258; 1
WILLISTON, CONTRACTS (REV. ED., 1936-38), SEC. 254; IMPERIAL LOAN CO.
V. STONE, (1892) 1 Q.B. 599; CASEBIER V. CASEBIER, 193 KY. 490; 236
S.W. 966. 

FN42  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D 603, 614, 615. 

FN43  "IN MY OPINION THE AGREEMENT OF AUGUST 31, 1906, FROM ELIZA
CHRISTIAN TO ANNIE KENTWELL, IN CONSIDERATION OF HER SUPPORT AND
MAINTENANCE DURING THE BALANCE OF HER LIFE, PURPORTED TO CONVEY NOT
ONLY ALL THE RENTS ACCRUING TO ELIZA CHRISTIAN UNDER THE LEASE OF 1905
AFTER THE CONTINGENT REMAINDER OF ELIZA CHRISTIAN BECAME VESTED IN 1922
UPON THE DEATH OF HER FATHER, AS HELD BY THE MAJORITY OPINION, BUT ALSO
ALL THE RENTS, ISSUES, AND PROFITS AFTER THE EXPIRATION OF THE LEASE
AND UNTIL HER DEATH."  CHRISTIAN V. WAIALUA AGRICULTURAL CO., 93 F.2D
603, 618. 

FN44  SEE HIGHLAND PARK MFG. CO. V. STEELE, 232 F. 10, 34, MODIFIED
235 F. 465; COCHRAN V. SHOENBERGER, 33 F. 397, 398; FORD V. KNAPP, 102
N.Y. 135, 140; 6 N.E. 283. 
..END :










DENVER STOCK YARD CO. V. U.S., 304 U.S. 470 


NO. 798.  ARGUED APRIL 27, 1938.  - DECIDED MAY 31, 1938.  - 21 F.SUPP. 
83, AFFIRMED. 


1.  IN FIXING RATES, PROPERTY NOT USED OR USEFUL IN RENDERING THE
SERVICES OF THE PUBLIC UTILITY NEED NOT BE INCLUDED IN RATE BASE.  P.
475. 

2.  IN FIXING RATES OF A STOCKYARD COMPANY, THE SECRETARY OF
AGRICULTURE PROPERLY EXCLUDED FROM THE RATE BASE: 

(A)  LAND AND IMPROVEMENTS USED FOR AN ANNUAL STOCK SHOW BUT NOT FOR
THE PERFORMANCE OF THE SERVICES COVERED BY THE RATES REGULATED.  P.
475. 

(B)  TRACKAGE AND FACILITIES, FOR UNLOADING AND LOADING LIVESTOCK,
LEASED TO RAILROAD COMPANIES FOR SUBSTANTIAL RENTALS, THE STOCKYARD
SERVICES BEING CONFINED TO THE PERIOD BETWEEN THE END OF UNLOADING AND
THE BEGINNING OF LOADING.  P. 476. 

3.  THE FACTS THAT HE HAD NOT DWELT IN THE LOCALITY AND HAD NEVER
APPRAISED LAND IN THAT VICINITY OR ASSEMBLED OR APPRAISED ANY LARGE
INDUSTRIAL TRACTS, DID NOT DISQUALIFY A WITNESS, OTHERWISE EXPERIENCED
IN LAND VALUATION, FROM TESTIFYING TO THE VALUE OF LAND OF A STOCKYARD
COMPANY, IN A PROCEEDING BY THE SECRETARY OF AGRICULTURE IN WHICH RATES
FOR STOCKYARD SERVICES WERE FIXED.  P. 477. 

4.  IN VALUING THE PROPERTY OF A PUBLIC UTILITY, AN ALLOWANCE FOR
GOING-CONCERN VALUE NEED NOT BE ITEMIZED SEPARATELY BUT MAY BE INCLUDED
IN THE VALUATION OF THE PHYSICAL ELEMENTS.  P. 478. 

5.  WHERE THE PRACTICE OF A STOCKYARD COMPANY WAS TO CHARGE ON SALES
OF LIVESTOCK MADE AT THE YARD BY PRODUCERS, BUT NOT ON RESALES MADE
THERE BY TRADERS WHO BOUGHT THERE FROM PRODUCERS, IT WAS WITHIN THE
PROVINCE OF THE SECRETARY OF AGRICULTURE, IN REGULATING RATES AND IN
AVOIDANCE OF DISCRIMINATION, UNDER THE STOCKYARDS ACT, TO REQUIRE THAT
REASONABLE RATES ON SUCH RESALES BE CHARGED THE TRADERS.  P. 481. 

SUCH A REQUIREMENT DID NOT CREATE UNJUST DISCRIMINATION AS BETWEEN
PRODUCERS, NOR UNLAWFULLY INVADE THE RIGHT OF THE COMPANY, AS OWNER, TO
MANAGE THE YARD AND CONTROL ITS BUSINESS POLICY. 

6.  WHETHER A STOCKYARD COMPANY IS ENTITLED, AS OF CONSTITUTIONAL
RIGHT, TO HAVE ANY OF A NUMBER OF CONTRIBUTIONS TO LOCAL CHARITIES AND
CIVIC ORGANIZATIONS, SUBSCRIPTIONS ETC. INCLUDED IN ITS OPERATING
EXPENSES IN THE FIXING OF ITS RATES FOR THE FUTURE, THE COURT FINDS IT
UNNECESSARY TO CONSIDER, IN VIEW OF THE VARIABILITY OF ITS PROSPECTIVE
INCOME, ITS CONTROL OVER THE ITEMS IN CONTROVERSY, AND THEIR TRIVIAL
AMOUNT.  P. 482. 

7.  A CLAIM THAT THE COSTS AND EXPENSES OF THIS LITIGATION, AMORTIZED
OVER A REASONABLE PERIOD, SHOULD BE INCLUDED IN THE OPERATING COSTS OF
THE APPELLANT STOCKYARD COMPANY, IN DETERMINING THE ADEQUACY OF RATES
FIXED BY THE SECRETARY OF AGRICULTURE, CAN NOT BE CONSIDERED, IT NOT
HAVING BEEN PRESENTED BY THE BILL OR IN THE REQUEST FOR FINDINGS.  P.
484. 

8.  THE EVIDENCE IS NOT SUFFICIENT TO REQUIRE OR WARRANT A FINDING
THAT IN THE IMMEDIATE FUTURE A RETURN OF SIX AND ONE-HALF PER CENT. ON
THE VALUE OF THE STOCKYARD COMPANY'S PROPERTY WILL BE INADEQUATE.  P.
485.   THE RESULT. 

DENVER UNION STOCK YARD CO. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLORADO. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES DISMISSING
THE BILL IN A SUIT TO SET ASIDE AN ORDER OF THE SECRETARY OF
AGRICULTURE PRESCRIBING MAXIMUM RATES TO BE CHARGED BY THE APPELLANT
STOCK YARD COMPANY. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

NOVEMBER 8, 1934, THE SECRETARY OF AGRICULTURE INITIATED PROCEEDINGS
IN WHICH, FEBRUARY 17, 1937, AFTER EXTENDED INVESTIGATION, TAKING OF
MUCH EVIDENCE AND FULL HEARING, HE MADE FINDINGS OF FACT AND AN ORDER,
PRESCRIBING MAXIMUM RATES TO BE CHARGED BY APPELLANT FOR SERVICES
RENDERED BY IT.  FN1  MARCH 9, 1937, IT COMMENCED THIS SUIT  FN2  TO
SET ASIDE THE ORDER ON THE GROUND THAT THE PRESCRIBED RATES ARE
CONFISCATORY AND THAT ENFORCEMENT OF THE ORDER WOULD DEPRIVE THE
COMPANY OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE
FIFTH AMENDMENT.  THE CASE WAS SUBMITTED ON STIPULATIONS AND THE
EVIDENCE BEFORE THE SECRETARY.  THE COURT MADE FINDINGS OF FACT, STATED
CONCLUSIONS OF LAW, ANNOUNCED OPINION, 21 F.SUPP.  83, AND ENTERED
DECREE DISMISSING THE BILL. 

THE CHALLENGED RATES INCLUDE MARKETING CHARGES PER HEAD; THEY ARE
APPLICABLE ONLY WHEN SALES ARE MADE, AND ARE THE SAME WITHOUT REGARD TO
THE TIME THE STOCK REMAINS IN THE PENS.  THESE ARE CALLED "YARDAGE
CHARGES."  APPELLANT MAKES NO CHARGE FOR USE, AS SUCH, OF PENS OR OTHER
FACILITIES; ITS CHARGES FOR FEED, BEDDING AND OTHER SERVICES ARE
REGULATED BY THE ORDER.  ABOUT THREE-FOURTHS OF THE TOTAL NUMBER OF
ANIMALS RECEIVED AT THE YARD ARE SOLD THERE.  SOME ARE SOLD TO TRADERS,
ALSO CALLED DEALERS AND SPECULATORS, AND HELD IN THE YARD UNTIL SOLD
AGAIN.  APPELLANT HAS NEVER MADE ANY CHARGE AGAINST TRADERS FOR RESALES
OR REWEIGHING FOR SALE EXCEPT WHEN THE RESALE WAS THROUGH COMMISSION
MEN.  FOR THAT SERVICE, THE ORDER PRESCRIBES RATES WHICH FOR
CONVENIENCE MAY BE REFERRED TO AS "YARDAGE CHARGES TO TRADERS." 
APPELLANT'S ACTIVITIES ARE NOT CONFINED TO SERVICES COVERED BY THE
ORDER.  IT UNLOADS AND LOADS LIVESTOCK FROM AND INTO CARS OF RAILROADS
SERVING THE YARD, AND RECEIVES FROM THE CARRIERS COMPENSATION NOT
REGULATED BY THE SECRETARY.  IF ENFORCED, THE ORDER WILL REDUCE REVENUE
FROM CHARGES FOR YARDAGE SERVICES BY ABOUT EIGHT AND ONE-HALF PER CENT,
AND FROM CHARGES FOR OTHER SERVICES BY ABOUT NINETEEN PER CENT;
MISCELLANEOUS REVENUES IN A SUBSTANTIAL AMOUNT ARE NOT AFFECTED; TOTAL
REVENUE WILL BE REDUCED BY ABOUT EIGHT AND ONE-HALF PER CENT.  FN3 

TO ASCERTAIN THE AMOUNT ON WHICH APPELLANT IS ENTITLED TO EARN A
RETURN, THE SECRETARY DETERMINED WHAT LAND AND STRUCTURES WERE USED AND
USEFUL FOR PERFORMANCE OF THE SERVICES, AND TO PRESENT VALUE OF LAND
ADDED COST OF REPRODUCTION NEW LESS DEPRECIATION OF STRUCTURES, AND
ALLOWANCES ON ACCOUNT OF A BRIDGE AND SEWAGE DISPOSAL PLANT BEING
BUILT, AND WORKING CAPITAL.  THE TOTAL IS SLIGHTLY LESS THAN
$2,792,700, WHICH THE SECRETARY ADOPTED AS RATE BASE.  HE FOUND SIX AND
ONE-HALF PER CENT TO BE A REASONABLE RATE OF RETURN, $530,117 THE
REVENUE PROCURABLE IF PRESCRIBED CHARGES BE PUT IN EFFECT, AND $346,545
THE OPERATING EXPENSES, LEAVING A NET RETURN OF $183,572, SLIGHTLY MORE
THAN SIX AND ONE-HALF PER CENT ON THE VALUE OF THE PROPERTY. 

APPELLANT ACCEPTS AS CORRECT THE SECRETARY'S ESTIMATE OF COST OF
REPRODUCTION LESS DEPRECIATION OF PROPERTY FOUND TO BE USED AND USEFUL,
AND ALSO THE ALLOWANCES ABOVE MENTIONED.  BUT IT OBJECTS TO HIS
EXCLUSION OF LAND AND IMPROVEMENTS USED FOR A STOCK SHOW AND FOR
TRACKAGE AND FACILITIES FOR UNLOADING AND LOADING LIVESTOCK, TO HIS
VALUATION OF THE LAND, TO HIS TREATMENT OF GOING CONCERN VALUE, TO HIS
REFUSAL TO ALLOW CERTAIN ITEMS THAT IT CLAIMS TO BE OPERATING EXPENSES,
AND TO THE RATE OF RETURN FOUND BY HIM TO BE REASONABLE. 

THE RATE BASE.  AS OF RIGHT SAFEGUARDED BY THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT, APPELLANT IS ENTITLED TO RATES, NOT PER SE
EXCESSIVE AND EXTORTIONATE, SUFFICIENT TO YIELD A REASONABLE RATE OF
RETURN UPON THE VALUE OF PROPERTY USED, AT THE TIME IT IS BEING USED,
TO RENDER THE SERVICES.  WILLCOX V. CONSOLIDATED GAS CO., 212 U.S. 19,
41.  MINNESOTA RATE CASES, 230 U.S. 352, 434.  BLUEFIELD WATER WORKS
CO. V. PUBLIC SERVICE COMM'N, 262 U.S. 679, 690.  BOARD OF
COMMISSIONERS V. NEW YORK TELEPHONE CO., 271 U.S. 23, 31.  MCCARDLE V.
INDIANAPOLIS WATER CO., 272 U.S. 400, 414.  LOS ANGELES GAS CO. V.
RAILROAD COMM'N, 289 U.S. 287, 305.  BUT IT IS NOT ENTITLED TO HAVE
INCLUDED ANY PROPERTY NOT USED AND USEFUL FOR THAT PURPOSE.  CF. ST.
JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 56. 

THE STOCK SHOW PROPERTY EXCLUDED.  THE STOCK SHOW IS HELD ON PROPERTY
OWNED BY APPELLANT AND IS CONDUCTED BY AN INCORPORATED ASSOCIATION NOT
ORGANIZED FOR PECUNIARY PROFIT.  IT CONTINUES FOR ABOUT ONE WEEK IN
JANUARY OF EACH YEAR.  THE SECRETARY FOUND A PART OF THAT PROPERTY,
WHICH IS OPERATED BY THE COLORADO HORSE AND MULE COMPANY, TO BE USED
AND USEFUL FOR PERFORMANCE OF SERVICES COVERED BY THE RATES REGULATED
BY HIM, AND INCLUDED IT IN THE RATE BASE.  HE APPRAISED THE REST OF THE
SHOW PROPERTY, WHICH CONSISTS OF 2.633 ACRES AND IMPROVEMENTS THEREON,
AT $219,033, BUT EXCLUDED IT AS NOT USED FOR THE PERFORMANCE OF
SERVICES COVERED BY THE RATES HE REGULATES. 

FOR PAYMENT OF EXPENSES OF THE SHOW THERE IS USED THE MONEY RECEIVED
FOR ADMISSION TO IT AND TO OTHER EVENTS ON THE PROPERTY, AND ALSO SOME
THAT IS DONATED FOR THAT PURPOSE.  APPELLANT ASSUMES THE CARRYING
CHARGES, INCLUDING INTEREST AND TAXES; WHEN THE SHOW IS UNABLE TO PAY
RENTAL SUFFICIENT TO COVER ALL CHARGES, APPELLANT ABSORBS THE DEFICIT. 
IT REQUESTED FINDINGS IN SUBSTANCE AS FOLLOWS:  LARGE QUANTITIES OF
LIVESTOCK ARE ENTERED IN THE SHOW AND MUCH IS SOLD ON THE SHOW
PROPERTY.  SOME IS SOLD IN THE YARDS OPERATED BY APPELLANT.  THE SHOW
ATTRACTS BUYERS AND THROUGHOUT THE YEAR WIDENS THE OUTLET FOR
PRODUCERS' STOCK, OPERATES TO INCREASE RECEIPTS, MAKES FOR IMPROVEMENT
OF STOCK RAISED AND FOR HIGHER PRICES, HAS EDUCATIONAL VALUE, AND
ADVERTISES THE MARKET.  IT IS SUPPORTED BY APPELLANT IN GOOD FAITH AND
IN THE BELIEF THAT IT STIMULATES ITS BUSINESS AND THAT OF LIVESTOCK
PRODUCERS.  THESE FACTS ARE NOT IN SUBSTANTIAL CONFLICT WITH THE
SECRETARY'S FINDINGS, AND MAY BE TAKEN AS ESTABLISHED BY THE EVIDENCE. 
BUT THEY ARE NOT SUFFICIENT TO PROVE THAT THE PROPERTY EXCLUDED IS USED
AND USEFUL FOR THE PERFORMANCE OF SERVICES COVERED BY RATES BEING
REGULATED BY THE SECRETARY.  NONE OF THOSE SERVICES IS PERFORMED ON OR
BY THE USE OF ANY OF THAT PROPERTY.  THE SECRETARY RIGHTLY SAYS "IF IT
IS APPELLANT'S CONTENTION THAT THE STOCK SHOW INCREASES THE STOCKYARD
BUSINESS, THEN IT SHOULD REQUEST THAT A REASONABLE ALLOWANCE BE MADE
FOR ADVERTISING EXPENSE AS A CHARGE AGAINST ITS INCOME."  IN SUPPORT OF
THAT VIEW HE ADDS "ADVERTISING OR DEVELOPMENTAL EXPENSES TO FOSTER
NORMAL GROWTH ARE LEGITIMATE CHARGES UPON INCOME FOR RATE PURPOSES IF
CONFINED WITHIN THE LIMITS OF REASON.  WEST OHIO GAS CO. V. COMM'N, 294
U.S. 63, 72."  APPELLANT'S CONTENTION THAT THE COURT ERRED IN UPHOLDING
THE SECRETARY'S EXCLUSION OF THAT ITEM IS NOT SUSTAINED. 

TRACKAGE AND UNLOADING AND LOADING FACILITIES.  THE SECRETARY
APPRAISED THAT PROPERTY AT $177,108.  HE EXCLUDED IT AS NOT USED FOR
PERFORMANCE OF ANY STOCKYARD SERVICE.  APPELLANT LEASES THE TRACKAGE TO
RAILROAD CARRIERS FOR SUBSTANTIAL RENTALS.  IT DOES NOT CLAIM THAT
EXCLUSION OF THAT PART OF THE ITEM IS CONFISCATORY AND FAILS TO SHOW IT
PREJUDICIAL.  IT FOLLOWS THAT THE COURT DID NOT ERR IN UPHOLDING THE
SECRETARY'S DETERMINATION.  THE UNLOADING AND LOADING FACILITIES
INCLUDE WAYS BETWEEN DOCKS AND THE PENS WHERE THE STOCKYARD SERVICES
ARE RENDERED.  APPELLANT USES THESE FACILITIES TO UNLOAD AND LOAD
LIVESTOCK.  THAT IS A SERVICE FOR WHICH THE CARRIERS PAY APPELLANT. 
STOCKYARD SERVICES DO NOT COMMENCE UNTIL UNLOADING ENDS; THEY END WHEN
LOADING BEGINS.  SEE ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 295
U.S. 193, 198.  THE COURT RIGHTLY REFUSED TO DISTURB THE SECRETARY'S
RULING AS TO THESE FACILITIES. 

LAND VALUE.  THE SECRETARY'S FINDING DEPENDS ON THE APPRAISAL AND
TESTIMONY OF HIS VALUATION ENGINEER.  APPELLANT MAINTAINS THAT IT IS
NOT SUPPORTED BY EVIDENCE BECAUSE THE ENGINEER WAS NOT A QUALIFIED
EXPERT WITNESS.  IT CONCEDES THAT, IF HE WAS COMPETENT, THE VALUATION
MUST BE SUSTAINED.  TO SUPPORT ITS POINT, APPELLANT RELIES ON THE FACT
THAT THE APPRAISER HAD NEVER LIVED IN DENVER OR PREVIOUSLY APPRAISED
ANY LAND THERE OR IN THAT VICINITY OR ASSEMBLED OR APPRAISED ANY LARGE
INDUSTRIAL TRACTS.  THE SIGNIFICANCE ADVERSE TO COMPETENCY THAT MIGHT
BE ATTRIBUTED TO THESE FACTS IF THEY STOOD ALONE IS NEGATIVED BY OTHERS
DISCLOSED BY THE RECORD.  THE APPRAISER IS AN EXPERIENCED CIVIL
ENGINEER; HE WAS LONG ENGAGED IN LAND APPRAISAL WORK UNDER THE
INTERSTATE COMMERCE COMMISSION.  HE LATER HAD PRIVATE PRACTICE AS
CONSULTING ENGINEER AND IN 1934 BECAME PRINCIPAL VALUATION ENGINEER OF
THE PACKERS AND STOCKYARDS DIVISION, BUREAU OF ANIMAL INDUSTRY,
DEPARTMENT OF AGRICULTURE; IN THAT CAPACITY HE HAS GIVEN TESTIMONY IN A
NUMBER OF RATE PROCEEDINGS.  HIS REPORT SUBMITTED TO THE SECRETARY
DISCLOSES ELABORATE INVESTIGATION AND CONSIDERATION OF PRICES PAID FOR
LAND, OF THE INTERSTATE COMMERCE COMMISSION'S APPRAISALS OF LANDS IN
THE VICINITY AND OF OTHER FACTS MATERIAL TO THE ASCERTAINMENT OF VALUE
OF THE LAND IN QUESTION.  IT CANNOT REASONABLY BE SAID THAT, BECAUSE OF
HIS LACK OF EARLIER KNOWLEDGE OF LOCAL CONDITIONS, THE FINDING WAS MADE
WITHOUT EVIDENCE. 

GOING CONCERN VALUE.  APPELLANT MAINTAINS THAT, WHILE ADMITTING IT
EXISTS IN THE PROPERTY, THE SECRETARY FAILED TO INCLUDE IN RATE BASE
ANY ALLOWANCE ON ACCOUNT OF IT, AND THAT THE EVIDENCE REQUIRES ADDITION
OF AT LEAST $325,000 TO COVER THAT ELEMENT. 

IN SUBSTANCE, THE SECRETARY'S FINDINGS STATE:  THE STOCKYARD IS A
GOING CONCERN; IT HAS A LONG HISTORY OF EFFICIENT MANAGEMENT AND HAS
WON A REPUTATION FOR GOOD SERVICE; IT HAS BEEN FINANCIALLY SUCCESSFUL. 
HIS VALUATION ENGINEER (WHOSE FIGURES AND VALUATION ARE THE BASIS OF
THE SECRETARY'S APPRAISAL) CONSIDERED GOING CONCERN VALUE BUT DID NOT
INCLUDE A SEPARATE AMOUNT FOR IT.  IN ADOPTING THE VALUE OF THE LAND
AND THE COST OF REPRODUCTION NEW LESS DEPRECIATION OF STRUCTURES,
CONSIDERATION WAS GIVEN TO THE ELEMENT OF GOING CONCERN VALUE. 
ADEQUATE ALLOWANCE HAS BEEN INCLUDED, ALTHOUGH NO SEPARATE ITEM ON ITS
ACCOUNT HAS BEEN SET FORTH.  THE FINDINGS CONTAIN A "SUMMARY OF THE
VALUE OF USED AND USEFUL LAND, THE COST OF REPRODUCTION NEW OF
STRUCTURES AND EQUIPMENT, INCLUDING DIRECT CONSTRUCTION OVERHEADS,
INDIRECT OVERHEADS, INTEREST ON USED AND USEFUL LAND DURING
CONSTRUCTION, AND WORKING CAPITAL, AND THE COST OF THESE, LESS
DEPRECIATION WHERE DEPRECIATION EXISTS, OF RESPONDENT (APPELLANT) AS A
GOING CONCERN.  FN4  ...  IT IS FOUND THAT THE FAIR VALUE OF THE
PROPERTY OF RESPONDENT AS A GOING CONCERN IS $2,792,681  ...  " 

THE SUBSTANCE OF APPELLANT'S CLAIM IS THAT THESE FIGURES ARE
EXCLUSIVELY ATTRIBUTABLE TO PHYSICAL ELEMENTS.  ASSUMING THAT TO BE
TRUE, IT DOES NOT FOLLOW THAT THE SECRETARY FAILED TO INCLUDE PROPER
ALLOWANCE FOR GOING CONCERN.  DAYTON P. & L. CO. V. COMM'N, 292 U.S.
290, 309.  THE VALUE OF APPELLANT'S PROPERTY USED IN STOCKYARD SERVICES
IS SINGLE IN SUBSTANCE.  WEST V. CHESAPEAKE & P. TEL. CO., 295 U.S.
662, 672.  WHILE IT MAY BE CONSIDERED AS MADE UP OF TANGIBLE AND
INTANGIBLE ELEMENTS, IT IS NOT NECESSARILY TO BE APPRAISED BY ADDING TO
COST FIGURES ATTRIBUTABLE TO MERE PHYSICAL PLANT SOMETHING TO COVER THE
VALUE OF THE BUSINESS.  KENNEBEC WATER DISTRICT V. WATERVILLE, 97 ME.
185, 220; 54 A. 6.  VALUE DEPENDS UPON USE AND IS MEASURED, OR AT LEAST
SIGNIFICANTLY INDICATED, BY THE PROFITABLENESS OF PRESENT AND
PROSPECTIVE SERVICE RENDERED AT RATES THAT ARE JUST AND REASONABLE AS
BETWEEN THE OWNER OF AND THOSE SERVED BY THE PROPERTY.  CLEVELAND, C.,
C. & ST. L. RY. CO. V. BACKUS, 154 U.S. 439, 445.  NATIONAL WATERWORKS
CO. V. KANSAS CITY, 62 F. 853, 864-866.  OMAHA V. OMAHA WATER CO., 218
U.S. 180, 202.  DES MOINES GAS CO. V. DES MOINES, 238 U.S. 153, 165. 
DENVER V. DENVER UNION WATER CO., 246 U.S. 178, 192.  CF. PUBLIC
SERVICE COMM'N V. GREAT NORTHERN UTILITIES CO., 289 U.S. 130.  IT IS
ELEMENTARY THAT VALUE OF A GOING CONCERN MAY BE LESS THAN, EQUAL TO, OR
MORE THAN, PRESENT COST OF PLANT LESS DEPRECIATION PLUS NECESSARY
SUPPLIES AND WORKING CAPITAL.  SEE GALVESTON ELECTRIC CO. V. GALVESTON,
258 U.S. 388, 396.  LOS ANGELES GAS CO. V. RAILROAD COMM'N, SUPRA, 313,
314.  DAYTON P. & L. CO. V. COMM'N, UBI SUPRA.  APPELLANT'S PLANT
WITHOUT BUSINESS, PRESENT OR PROSPECTIVE, WOULD BE WORTH MUCH LESS THAN
THE COST FIGURES FOUND BY THE SECRETARY TO REPRESENT VALUE. 
APPELLANT'S CLAIM, THAT THE RATE BASE INCLUDES NOTHING ON ACCOUNT OF
GOING CONCERN VALUE, IS WITHOUT FOUNDATION IN FACT. 

THE CONSIDERATIONS UPON WHICH APPELLANT CLAIMED TO HAVE ESTABLISHED
AN AMOUNT TO BE ADDED TO RATE BASE TO COVER GOING VALUE MAY BE
SUMMARILY STATED:  (1) THE SALES CHARGE IS FOR THE PRIVILEGE OF THE
MARKET.  THE VALUE OF THE MARKET IS NOT REFLECTED IN REPRODUCTION COST
OF STRUCTURES.  IT IS OVER AND ABOVE VALUE OF OR INVESTMENT IN PLANT. 
(2) APPELLANT HAS SPENT LARGE SUMS AND MADE GIFTS OF MONEY AND LAND AS
A RESULT OF WHICH LARGE PACKERS HAVE THEIR PLANTS AT DENVER AND BUY ON
APPELLANT'S MARKET.  (3) CATTLE OF VARIOUS OWNERS ARRIVING AT THE
DENVER MARKET BY RAIL FOR THE SAME MARKET SESSION FROM DIFFERENT
SHIPPING POINTS MAY BE SORTED INTO UNIFORM CARLOADS TO MOVE TO ANOTHER
DESTINATION ON THE THROUGH RATE FROM POINT OF SHIPMENT TO POINT OF
DESTINATION.  THE PRIVILEGE IS NOT OPEN AT CHICAGO OR ANY MISSOURI
RIVER MARKET.  (4) A HIGH PERCENTAGE OF THE STOCK RECEIVED AT
APPELLANT'S YARD IS SOLD THERE; THIS PERCENTAGE HAS PROGRESSIVELY
INCREASED.  (5) VOLUME, APPRAISED AT $10 PER CAR, APPLIED TO THE 35,000
CARS ANNUALLY RECEIVED AT THE YARD.    NONE OF THESE CONSIDERATIONS HAS
MUCH, IF ANY, BEARING ON THE ASCERTAINMENT OF GOING VALUE OR THE
APPLICATION OF THE RULE THAT IT IS TO BE TAKEN INTO ACCOUNT IN
CONFISCATION CASES.  THAT ELEMENT IS NOT SEPARATE FROM OR NECESSARILY
IN EXCESS OF REASONABLE COST FIGURES, ATTRIBUTABLE TO THE PLANT.  THE
SECRETARY CONSIDERED ITS LOCATION, THE VOLUME AND FLOW OF SHIPMENTS,
PERCENTAGES OF SALES TO RECEIPTS, PRIVILEGES IN TRANSIT, COST OF
SERVICE, PAST HISTORY, FUTURE PROSPECTS, AND OTHER PERTINENT FACTS. 
APPELLANT DOES NOT CLAIM THAT ITS PAST OPERATIONS CLEARLY REFLECT
EXCELLENCE OF SERVICE AND LOW COST PER UNIT IN COMPARISON WITH RESULTS
ATTAINED BY OTHER STOCKYARDS, OR THAT CONDITIONS AFFECTING PERFORMANCE
GIVE DEPENDABLE ASSURANCE OF FUTURE GROWTH AND CAPACITY TO EARN NET
RETURNS AT RELATIVELY LOW RATES.  SEE E.G. MCCARDLE V. INDIANAPOLIS
WATER CO., SUPRA, 413-415.  ITS EVIDENCE FALLS FAR SHORT OF CONDEMNING
AS ARBITRARY AND CONFISCATORY THE SECRETARY'S REFUSAL TO ADD A SEPARATE
AMOUNT TO HIS RATE BASE TO COVER GOING CONCERN VALUE. 

YARDAGE CHARGES TO TRADERS.  THESE ARE PRESCRIBED AS REASONABLE
MAXIMUM RATES TO COVER SALES FOR WHICH, AS ABOVE STATED, APPELLANT HAS
MADE NO CHARGE.  ITS FAILURE SO TO DO IS FOUND BY THE SECRETARY AND THE
LOWER COURT TO BE UNREASONABLY AND UNJUSTLY DISCRIMINATORY, IN THAT IT
DOES MAKE CHARGES FOR SIMILAR PRIVILEGES IT FURNISHES PRODUCERS AND
OTHERS SELLING IN ITS MARKET.  THE PRESCRIBED CHARGES APPLY TO ANIMALS
SOLD BY PRODUCERS OR OTHERS TO TRADERS AND BY THE LATTER RESOLD OR
REWEIGHED FOR SALE AT THE YARD.  ON CATTLE, CALVES AND HOGS THEY ARE 50
PER CENT OF THOSE CHARGED PRODUCERS, ON SHEEP AND GOATS 40 PER CENT,
AND ON HORSES, MULES AND PURE-BRED BULLS, 100 PER CENT.  THE SECRETARY
ESTIMATES THAT IF APPELLANT EXACTS THE PRESCRIBED CHARGES TO TRADERS IT
WILL OBTAIN REVENUE FROM THAT SOURCE OF $10,960 PER YEAR, AND HE
INCLUDES THAT AMOUNT IN HIS CALCULATION OF REASONABLE RETURN. 

THERE IS CONTROVERSY BETWEEN THE PARTIES AS TO SPACE ASSIGNED TO
TRADERS AND DETAILS OF SERVICE ATTRIBUTABLE TO SALES BY THEM.  BUT THE
EVIDENCE CLEARLY SHOWS THAT, AS FOUND BY THE SECRETARY AND LOWER
COURTS, APPELLANT DOES PROVIDE THEM FACILITIES AND PRIVILEGES SIMILAR
TO, THOUGH NOT PRECISELY THE SAME AS, THOSE FURNISHED TO OTHERS MAKING
SALES IN THE MARKET.  THESE CHARGES ARE NOT DISCRIMINATORY AS BETWEEN
PRODUCERS; THEY DIRECTLY BEAR BUT ONE CHARGE.  ASSUMING THAT THE CHARGE
FOR SELLING BY TRADERS WOULD OPERATE TO LESSEN PRICES OBTAINABLE BY
PRODUCERS FROM THEM, NO UNJUST DISCRIMINATION RESULTS, FOR OBVIOUSLY
CHARGES FOR THE TWO SALES OF THE SAME ANIMALS REASONABLY MAY BE MORE
THAN THAT EXACTED FOR THE FIRST ONE.  THESE RATES ARE PRESCRIBED, AND
REVENUES OBTAINABLE FROM THEM ARE INCLUDED BY THE SECRETARY IN HIS
ESTIMATE OF APPELLANT'S INCOME, TO THE END THAT IT MAY NOT EXACT FROM
PRODUCERS AND OTHERS SELLING AT THE YARD CHARGES SUFFICIENT TO COVER
THE PART OF ITS OPERATING EXPENSES THAT IS FAIRLY ATTRIBUTABLE TO THE
SALES MADE BY TRADERS.  THE STATUTE DENOUNCES UNJUST DISCRIMINATION AND
REQUIRES APPELLANT AS A PUBLIC MARKET TO CHARGE, AND EMPOWERS THE
SECRETARY TO PRESCRIBE, RATES THAT ARE NON-DISCRIMINATORY.  THERE IS NO
GROUND FOR THE APPELLANT'S SUGGESTION TO THE EFFECT THAT THE ORDER
UNLAWFULLY INVADES ITS RIGHT AS OWNER TO MANAGE THE YARD AND CONTROL
ITS BUSINESS POLICY.  CF. INTERSTATE COMMERCE COMM'N V. CHICAGO G.W.
RY. CO., 209 U.S. 108, 118.  NORFOLK & W. RY. CO. V. WEST VIRGINIA, 236
U.S. 605, 609.  NORTHERN PACIFIC RY. CO. V. NORTH DAKOTA, 236 U.S. 585,
595, 596.  BANTON V. BELT LINE RY., 268 U.S. 413, 421. 

DUES, DONATIONS AND SUBSCRIPTIONS.  APPELLANT CLAIMS AN ALLOWANCE IN
OPERATING EXPENSES OF $3000 TO $4000 A YEAR.  THE SECRETARY FOUND THAT
IT HAS REGULARLY MADE DISBURSEMENTS RANGING BETWEEN THOSE FIGURES TO
LOCAL CHARITIES, PHILANTHROPIES, CIVIC ORGANIZATIONS, ETC.  FN5  HE
HELD THAT ONLY THOSE OF PECULIAR BENEFIT TO RESPONDENT'S EMPLOYEES AND
PATRONS SHOULD BE INCLUDED, AND ON THAT BASIS ALLOWED IN ESTIMATED
FUTURE OPERATING EXPENSES $325 A YEAR.  APPELLANT SAYS THAT THE
EXCLUSION LEAVES RETURN ABOUT $1000 SHORT OF SIX AND ONE-HALF PER CENT,
THAT NO CONTRIBUTIONS WERE MADE TO CHARITIES WHICH DID NOT CARRY ON IN
THE STOCKYARDS AREA, AND THAT NEARLY ALL OTHER ITEMS WERE BUSINESS
EXPENSES. 

BUT DECISION HERE CANNOT BE MADE TO TURN ON AN ESTIMATED MARGIN
RELATIVELY SO SMALL.  APPELLANT'S ANNUAL RECEIPTS AND SALES AT THE YARD
VARY CONSIDERABLY.  OPERATING EXPENSES MAY BE LESS OR MORE PER HEAD
THAN THE ESTIMATES THEREFOR.  PROPERTY VALUE MAY DECLINE OR ADVANCE. 
NONE OF THE EXPENDITURES IN QUESTION IS COMPULSORY.  APPELLANT MAY
WITHHOLD DUES, DONATIONS OR SUBSCRIPTIONS AS IT SEES FIT.  IT WAS NOT,
AND PROBABLY COULD NOT HAVE BEEN, PROVED THAT FAILURE TO RESPOND WOULD
ADVERSELY AFFECT ITS REVENUE.  THE SECRETARY IS NOT REQUIRED TO
PRESCRIBE RATES SO LOW AS TO BE BARELY SUFFICIENT TO WITHSTAND ATTACK
ON THE GROUND OF CONFISCATION, BUT IS AT LIBERTY WITHIN LIMITS THAT HE
MAY FIND TO BE JUST AND REASONABLE TO ESTABLISH HIGHER RATES.  BANTON
V. BELT LINE RY., SUPRA, 422.  DAYTON P. & L. CO. V. COMM'N, SUPRA,
308.  COLUMBUS GAS CO. V. COMM'N, 292 U.S. 398, 414.  ATLANTIC COAST
LINE V. FLORIDA, 295 U.S. 301, 317.  CF. DAYTON-GOOSE CREEK RY. V.
UNITED STATES, 263 U.S. 456, 484.  IN VIEW OF THE VARIABLE ELEMENTS TO
WHICH APPELLANT'S PROSPECTIVE INCOME IS SUBJECT, ITS CONTROL OVER THE
ITEMS IN CONTROVERSY, AND THEIR TRIVIALITY, WE FIND IT UNNECESSARY TO
DECIDE WHETHER APPELLANT AS OF CONSTITUTIONAL RIGHT IS ENTITLED TO HAVE
ANY OF THEM INCLUDED IN ITS FUTURE OPERATING EXPENSES. 

EXPENSES OF HEARINGS UNDER THE ACT.  THE SECRETARY FOUND IT
REASONABLE TO INCLUDE IN ESTIMATED OPERATING COSTS SOME OF THE EXPENSES
INCIDENT TO FUTURE HEARINGS UNDER THE ACT, SUGGESTED THAT THEY WILL BE
LESS THAN HERETOFORE, AND ALLOWED $100 A MONTH.  THE COURT BELOW
REACHED THE SAME CONCLUSION.  APPELLANT DOES NOT ATTACK THIS ALLOWANCE
AS INSUFFICIENT TO COVER EXPENSE ON ACCOUNT OF FUTURE HEARINGS.  HERE,
IT COMPLAINS THAT NOTHING IS INCLUDED "TO AMORTIZE OVER A REASONABLE
FUTURE PERIOD OR AT ALL THE COSTS AND EXPENSES OF THE PRESENT
LITIGATION." 

BUT WE ARE NOT CALLED ON TO DECIDE THAT QUESTION.  APPELLANT'S BILL
CHALLENGES THE SECRETARY'S ALLOWANCE, REFERS TO EXPENSES THERETOFORE
INCURRED IN RATE INVESTIGATIONS AND ALLEGES THAT THE ALLOWANCE "IS
WHOLLY INADEQUATE TO PERMIT PETITIONER (APPELLANT) EITHER TO REIMBURSE
ITSELF FOR EXPENDITURES FORCED UPON IT BY THE SECRETARY OR TO MEET
PROBABLE REASONABLE EXPENDITURES FOR SAID PURPOSES IN THE FUTURE, AND
THAT THE  ...  FINDING  ...  IS ARBITRARY  ...  "  AT THE TRIAL THE
SECRETARY, WITHOUT CONCEDING MATERIALITY OF THE FACTS, STIPULATED THAT
EXPENSE OF THE PRESENT PROCEEDING FROM ITS COMMENCEMENT, ABOUT JANUARY
1, 1935, TO THE DATE OF THE ORDER WAS $24,654.27 AND THAT A REASONABLE
ESTIMATE OF THE EXPENSE OF LITIGATION IN THE LOWER COURT WAS $15,785. 
APPELLANT REQUESTED THE COURT TO FIND THAT ITS AVERAGE ANNUAL EXPENSE
ON ACCOUNT OF HEARINGS UNDER THE ACT FOR THE FIVE-YEAR PERIOD ENDING
WITH 1934 WAS $8,786.88, AND TO FIND THE FACTS STIPULATED BY THE
SECRETARY AND THAT ITS AVERAGE ANNUAL EXPENSE ON ACCOUNT OF ENFORCEMENT
OF THE ACT FOR THE ELEVEN-YEAR PERIOD ENDING WITH 1934 WAS $6,216. 

THE BURDEN WAS ON APPELLANT BY DIRECT ALLEGATIONS PLAINLY TO SET
FORTH THE FACTS ON WHICH IT INTENDED AT THE TRIAL TO MAINTAIN THAT THE
RATES ARE CONFISCATORY.  AETNA INSURANCE CO. V. HYDE, 275 U.S. 440,
447, AND CASES THERE CITED.  NEW ORLEANS PUBLIC SERVICE V. NEW ORLEANS,
281 U.S. 682, 686.  BEAUMONT, S.L. & W. RY. CO. V. UNITED STATES, 282
U.S. 74, 88-89.  MISSOURI PACIFIC R. CO. V. NORWOOD, 283 U.S. 249,
255.  ITS COMPLAINT FAILED TO DISCLOSE THE CLAIM IT NOW MAKES.  IT IS
THAT FOR EACH OF THE FIVE YEARS FOLLOWING THE EFFECTIVE DATE OF THE
ORDER, THERE SHOULD BE ADDED TO ESTIMATED COST OF OPERATION ABOUT
$8,000 TO COVER EXPENSES OF HEARINGS BEFORE THE SECRETARY AND OF
LITIGATION IN THE DISTRICT COURT.  ITS REQUEST FOR FINDING WAS NOT
SUFFICIENT TO PRESENT THE QUESTION.  PROBABLE EXPENSE OF FUTURE
HEARINGS BEING IN ISSUE, THE SECRETARY'S STIPULATION AS TO ACTUAL COST
OF PAST HEARINGS AND PROBABLE EXPENSE OF FUTURE LITIGATION CANNOT BE
REGARDED AS CONSENT TO LITIGATE THE QUESTION OF AMORTIZATION NOT RAISED
BY THE BILL.  AS THE ISSUE WAS NOT APPROPRIATELY PRESENTED BELOW,
APPELLANT IS NOT ENTITLED TO HAVE IT DECIDED HERE. 

RATE OF RETURN.  UPON CONSIDERATION OF THE TESTIMONY OF THE
SECRETARY'S ECONOMIST AND A LOCAL INVESTMENT BANKER OF HIGH STANDING,
WHO IS ALSO A STOCKHOLDER AND DIRECTOR OF APPELLANT, THE SECRETARY AND
LOWER COURT FOUND THAT SIX AND ONE-HALF PER CENT PER ANNUM OF THE VALUE
OF THE PROPERTY IS A REASONABLE RETURN.  WE NEED NOT RESTATE THE
CONSIDERATIONS TO BE TAKEN INTO ACCOUNT IN DETERMINING A REASONABLE
RATE OF RETURN.  FN6 PLAINLY THE EVIDENCE IS NOT SUFFICIENT TO REQUIRE
OR WARRANT A FINDING THAT IN THE IMMEDIATE FUTURE A RETURN OF SIX AND
ONE-HALF PER CENT ON THE VALUE OF THE PROPERTY WILL BE CONFISCATORY. 

THE JUDGMENT OF THE DISTRICT COURT MUST BE AFFIRMED. 

FN1  7 U.S.C. SEC. 211.  "WHENEVER AFTER FULL HEARING  ...  THE
SECRETARY IS OF THE OPINION THAT ANY RATE, CHARGE, REGULATION, OR
PRACTICE OF A STOCKYARD OWNER OR MARKET AGENCY, FOR OR IN CONNECTION
WITH THE FURNISHING OF STOCKYARD SERVICES, IS OR WILL BE UNJUST,
UNREASONABLE, OR DISCRIMINATORY, THE SECRETARY - 

"(A)  MAY DETERMINE AND PRESCRIBE WHAT WILL BE THE JUST AND REASONABLE
RATE OR CHARGE, OR RATES OR CHARGES, TO BE THEREAFTER OBSERVED IN SUCH
CASE, OR THE MAXIMUM OR MINIMUM, OR MAXIMUM AND MINIMUM, TO BE CHARGED,
AND WHAT REGULATION OR PRACTICE IS OR WILL BE JUST, REASONABLE, AND
NONDISCRIMINATORY TO BE THEREAFTER FOLLOWED; AND 

"(B)  MAY MAKE AN ORDER THAT SUCH OWNER OR OPERATOR (1) SHALL CEASE
AND DESIST FROM SUCH VIOLATION TO THE EXTENT TO WHICH THE SECRETARY
FINDS THAT IT DOES OR WILL EXIST; (2) SHALL NOT THEREAFTER PUBLISH,
DEMAND, OR COLLECT ANY RATE OR CHARGE FOR THE FURNISHING OF STOCKYARD
SERVICES OTHER THAN THE RATE OR CHARGE SO PRESCRIBED, OR IN EXCESS OF
THE MAXIMUM OR LESS THAN THE MINIMUM SO PRESCRIBED, AS THE CASE MAY BE;
AND (3) SHALL CONFORM TO AND OBSERVE THE REGULATION OR PRACTICE SO
PRESCRIBED." 

FN2  7 U.S.C. SEC. 217; 28 U.S.C. SECS. 44, 47(A). 

FN3  THE SECRETARY IN HIS BRIEF FURNISHES THE COURT THE FOLLOWING
STATEMENT.  "THE REVENUES PRODUCED FROM AN APPLICATION OF THE RATES
PRESCRIBED BY THE SECRETARY TO THE VOLUME OF BUSINESS USED BY HIM AS A
RATE FACTOR ARE $530,117.  THE REVENUES PRODUCED BY AN APPLICATION OF
THE RATES UNDER INVESTIGATION TO THE VOLUME USED BY THE SECRETARY AS A
RATE FACTOR ARE $579,342.  THE $530,117 PRODUCED BY THE PRESCRIBED
RATES IS 91.5% OF THE $579,342 PRODUCED BY THE RATES UNDER
INVESTIGATION. 

"THE FOLLOWING TABLE SHOWS THE METHOD AND COMPUTATIONS BY WHICH THESE
RESULTS WERE OBTAINED: 

(CHART OMITTED) 

FN4  SEE TABLE BELOW: 

(CHART OMITTED) 

FN5  THERE WERE OVER ONE HUNDRED RECIPIENTS OF DUES, DONATIONS AND
SUBSCRIPTIONS DURING THE FIVE YEARS ENDING WITH 1934.  THE
CONTRIBUTIONS MADE IN 1934 ARE FAIRLY ILLUSTRATIVE.  THEY ARE LISTED
BELOW.  THOSE IN ITALICS WERE MADE (IN VARYING AMOUNTS) IN EACH OF THE
FIVE YEARS; THOSE UNDERSCORED WERE ALLOWED BY THE SECRETARY. 

DENVER COMMUNITY CHEST, $1000; DENVER CHAMBER OF COMMERCE, $240; U.S.
CHAMBER OF COMMERCE, $50; JUNIOR CHAMBER OF COMMERCE, $15; TICKETS AND
BOXES - STOCK SHOW, $395.50; AMERICAN STOCKYARDS ASSOCIATION, $832.56;
CHURCH DONATIONS, $115; FLOWERS, $4; UNITED APPEAL, $75; VOLUNTEERS OF
AMERICA, $10; VETERAN VOLUNTEER FIREMEN, $5; FIREMEN'S PROTECTIVE
ASSOCIATION, $15; DENVER TRAFFIC CLUB, $18; DENVER COMMERCIAL TRAFFIC
CLUB, $18; I.C.C. TRAFFIC REPORTS, $25.25; TRAFFIC SERVICE CORP., $10;
BRAND INSPECTORS - CHRISTMAS, $70; DENVER LIVE STOCK EXCHANGE, $95.53;
DENVER POST, $12; TAX PAYERS REVIEW, $5; POLICEMEN'S PROTECTIVE
ASSOCIATION, $50; LUNCHES AT AUCTION, $55; 4-H CLUB LUNCHEON, $34;
TRAFFIC RED BOOK, $8; OLD FOLKS HOME, $10; CHRISTMAS SEALS, $1; RESCUE
MISSION, $2.50; CHICAGO DROVERS JOURNAL YEARBOOK, $1; CHURCH MESSENGER,
$11; JOINT LABOR DAY COMMITTEE, $10; DENVER TOURISTS BUREAU, $100;
WEDDING GIFT, $250; GENTS DRIVING & RIDING CLUB, $10; COLORADO WOMENS
COLLEGE, $100; INTERNATIONAL VET.  CONGRESS, $25; POLICE & SHERIFFS
ASSOCIATION, $25; FEDERAL INCOME TAX SERVICE, $66; WESTERN LEGIONNAIRE,
$5; NATIONAL FEDERATION OF FEDERAL EMPLOYEES, $11; AMERICAN LEGION, $5;
PROGRAM - HOLY NAME BASKET BALL, $5; OFFICE EMPLOYEES HAY RIDE, ETC.,
$3; GULDMAN COMMUNITY CENTER, $2.50; PRESIDENT'S BALL - TICKETS, $18. 

FN6  WILLCOX V. CONSOLIDATED GAS CO., 212 U.S. 19.  BLUEFIELD CO. V.
PUBLIC SERVICE COMM'N, 262 U.S. 679, 692.  LINDHEIMER V. ILLINOIS TEL.
CO., 292 U.S. 151.  DAYTON P. & L. CO. V. COMM'N, 292 U.S. 290, 311. 
ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 72. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK CONCURS IN
..END :





IN RE LABOR BOARD, 304 U.S. 486 


NO. 21, ORIGINAL.  ARGUED MAY 23, 1938.  - DECIDED MAY 31, 1938. 


1.  TO CONFER JURISDICTION UPON THE CIRCUIT COURT OF APPEALS TO REVIEW
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, THE FILING AND SERVICE
OF THE PETITION ARE NOT ENOUGH, BUT A TRANSCRIPT OF THE BOARD'S
PROCEEDINGS ALSO MUST BE FILED WITH THE COURT.  NATIONAL LABOR
RELATIONS ACT, SEC. 10(D)(E)(F).  P. 491. 

2.  WHERE A PETITION FOR REVIEW HAS BEEN FILED AND SERVED ON THE
BOARD, AND THE PETITIONER HAS REQUESTED THE BOARD TO FURNISH A
CERTIFIED TRANSCRIPT OF ITS PROCEEDINGS BUT NONE HAS BEEN FURNISHED AND
FILED IN THE COURT, THE BOARD RETAINS AUTHORITY, UNDER SEC. 10(D) OF
THE ACT, TO VACATE OR MODIFY ITS ORDER FOR THE PURPOSE OF CORRECTING
ERRORS WHICH RENDER IT INADEQUATE OR UNJUST, AND THE COURT HAS NO
JURISDICTION TO RESTRAIN THE BOARD FROM SO DOING AND TO REQUIRE IT TO
FILE THE TRANSCRIPT.  PP. 491-494. 

IN THE PRESENT CASE THERE IS NO OCCASION TO DETERMINE WHAT, IF ANY,
RELIEF MAY BE NEEDED BY OR AVAILABLE TO A PARTY WHO HAS FILED HIS
PETITION FOR REVIEW, WHERE THE BOARD DOES NOT DESIRE TO MODIFY OR SET
ASIDE ITS ORDER BUT FAILS OR REFUSES TO FURNISH A TRANSCRIPT OF ITS
PROCEEDINGS. 

3.  THE INVESTITURE OF THE COURT WITH JURISDICTION TO REVIEW AN ORDER
OF THE LABOR BOARD ON THE MERITS, ONLY UPON THE FILING OF A TRANSCRIPT
EXHIBITING THE BOARD'S FINAL ACTION, IS NOT A DENIAL OF DUE PROCESS. 
P. 495. 

4.  MANDAMUS AND PROHIBITION ARE APPROPRIATE REMEDIES, IN THE ABSENCE
OF ADEQUATE REMEDY BY CERTIORARI, FOR UNWARRANTED ASSUMPTION BY THE
CIRCUIT COURT OF APPEALS OF JURISDICTION OVER PROCEEDINGS OF THE
NATIONAL LABOR RELATIONS BOARD.  P. 496. 

IN THE MATTER OF THE NATIONAL LABOR RELATIONS BOARD. 

PETITION FOR WRITS OF PROHIBITION AND MANDAMUS. 

ORIGINAL APPLICATION BY THE NATIONAL LABOR RELATIONS BOARD FOR WRITS
OF MANDAMUS AND PROHIBITION DIRECTED TO THE JUDGES OF THE CIRCUIT COURT
OF APPEALS FOR THE THIRD CIRCUIT.  THE CAUSE WAS SUBMITTED BY THE
RESPONDENTS, HON. JOSEPH BUFFINGTON, HON. J. WARREN DAVIS, AND HON. J.
WHITAKER THOMPSON, CIRCUIT JUDGES, UPON THEIR RETURN TO THE RULE TO
SHOW CAUSE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE MOTION BEFORE US INVOLVES A CONSTRUCTION OF SEC. 10(D)(E) AND (F)
OF THE NATIONAL LABOR RELATIONS ACT,  FN1  PROVIDING FOR REVIEW OF
ORDERS OF THE NATIONAL LABOR RELATIONS BOARD. 

MAY 16, 1938, THE BOARD FILED IN THIS COURT A MOTION FOR LEAVE TO
FILE A PETITION FOR WRITS OF PROHIBITION AND MANDAMUS DIRECTED TO THE
JUDGES OF THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT.  ATTACHED TO THE MOTION WAS THE PETITION WHICH SET FORTH THE
FOLLOWING FACTS. 

APRIL 8, 1938, THE BOARD, IN A CAUSE PENDING BEFORE IT, ISSUED AN
ORDER DIRECTING THE REPUBLIC STEEL CORPORATION TO DESIST FROM CERTAIN
UNFAIR LABOR PRACTICES AND TO TAKE CERTAIN AFFIRMATIVE ACTION.  APRIL
18 REPUBLIC FILED IN THE CIRCUIT COURT OF APPEALS A PETITION FOR REVIEW
ALLEGING THAT THE ORDER VIOLATED THE CONSTITUTIONAL GUARANTEE OF DUE
PROCESS BECAUSE IT WAS ENTERED WITHOUT AN OPPORTUNITY TO REPUBLIC TO
SUPPORT ITS CONTENTIONS BY ARGUMENT OR BRIEF AND THUS THE BOARD HAD
DENIED IT THE HEARING TO WHICH IT WAS ENTITLED.  ON THE SAME DAY
REPUBLIC REQUESTED OF THE BOARD A TRANSCRIPT OF THE ENTIRE RECORD OF
ITS PROCEEDINGS AND THE GENERAL COUNSEL OF THE BOARD REPLIED: "I HAVE
YOUR LETTER OF APRIL 18TH, AND RECEIVED TODAY A COPY OF YOUR PETITION
FOR REVIEW OF THE BOARD'S ORDER FILED IN THE THIRD CIRCUIT.  WE WILL
PROCEED TO GET UP THE RECORD AS PROMPTLY AS POSSIBLE FOR CERTIFICATION
TO THE COURT." 

THE RULES OF THE BOARD EXTEND TO ANY PARTY THE RIGHT, WITHIN A
REASONABLE PERIOD AFTER THE CLOSE OF A HEARING, TO PRESENT ORAL
ARGUMENT BEFORE THE TRIAL EXAMINER AND, WITH HIS PERMISSION, TO FILE
BRIEFS.  THEY FURTHER PROVIDE THAT THE BOARD MAY DECIDE A CAUSE WITH OR
WITHOUT ALLOWING THE PARTIES TO PRESENT ORAL ARGUMENT BEFORE THE BOARD
ITSELF OR TO SUBMIT BRIEFS TO THE BOARD.  IT IS THE BOARD'S PRACTICE TO
GRANT LEAVE TO SUBMIT BRIEFS TO IT OR TO MAKE ORAL ARGUMENT BEFORE IT
WHENEVER SO REQUESTED, BUT THE RULES DO NOT EXPRESSLY STATE THAT SUCH A
REQUEST MAY BE MADE OR THAT THE REQUEST, IF MADE, WILL BE GRANTED.  NO
SUCH REQUEST WAS MADE BY REPUBLIC AND NO BRIEF WAS RECEIVED OR ORAL
ARGUMENT HEARD BEFORE THE ENTRY OF THE ORDER OF APRIL 8, 1938.  THE
RULES ALSO PROVIDE FOR HEARING BEFORE A TRIAL EXAMINER OF CAUSES
INITIATED BY THE FILING OF CHARGES BEFORE A REGIONAL DIRECTOR UNLESS
THE CAUSE IS TRANSFERRED FOR HEARING BEFORE THE BOARD IN WASHINGTON. 
IF THE HEARING IS BEFORE AN EXAMINER HE IS TO RENDER AN INTERMEDIATE
REPORT CONTAINING FINDINGS OF FACT AND RECOMMENDATIONS AS TO THE
DISPOSITION OF THE CAUSE, WHICH ARE TO BE SERVED UPON THE PARTIES, AND
THEY ARE ENTITLED TO TAKE EXCEPTIONS TO THE INTERMEDIATE REPORT.  IN
CASES INITIATED BY CHARGES FILED WITH THE BOARD IN WASHINGTON, OR
TRANSFERRED FOR HEARING BEFORE THE BOARD, IT MAY DIRECT THE TRIAL
EXAMINER TO PREPARE AN INTERMEDIATE REPORT, BUT THE RULES DO NOT
REQUIRE THAT SUCH A REPORT SHALL BE PREPARED OR SERVED, OR THAT THE
BOARD SHALL SERVE ITS OWN PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW.  THE COMPLAINT AGAINST REPUBLIC WAS INITIATED BY CHARGES FILED
WITH THE BOARD.  THE BOARD DID NOT DIRECT THE TRIAL EXAMINER TO PREPARE
AN INTERMEDIATE REPORT AND NONE WAS PREPARED OR SERVED, NOR DID THE
BOARD SERVE ITS OWN PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
PRIOR TO THE ENTRY OF ITS ORDER. 

SUBSEQUENT TO APRIL 25, 1938, THE BOARD INSTITUTED THE PRACTICE OF
NOTIFYING THE PARTIES IN ALL PROCEEDINGS BEFORE IT OF THEIR RIGHT TO
SUBMIT BRIEFS TO THE BOARD AND, UPON REQUEST, TO PRESENT ORAL ARGUMENT
TO THE BOARD; AND FURTHER DETERMINED THAT, IN CASES THEREAFTER TO BE
DECIDED, WHICH HAD BEEN INITIATED BEFORE IT, OR TRANSFERRED TO IT FOR
HEARING (EXCEPT FOR SPECIAL REASONS IN PARTICULAR CASES) AN
INTERMEDIATE REPORT SHOULD BE PREPARED BY THE TRIAL EXAMINER AND SERVED
UPON THE PARTIES OR, IN THE ALTERNATIVE, PROPOSED FINDINGS OF FACT AND
CONCLUSIONS SHOULD BE PREPARED BY THE BOARD AND SIMILARLY SERVED WITH
EXPRESS NOTICE TO THE PARTIES OF THEIR RIGHT TO TAKE EXCEPTIONS TO THE
REPORT OR THE PROPOSED FINDINGS AND, UPON REQUEST, TO BE HEARD BY THE
BOARD, ORALLY OR UPON BRIEF IN SUPPORT OF THE EXCEPTIONS.  IN CASES
ALREADY DECIDED, IN WHICH COMPLAINT HAD BEEN MADE OF THE OMISSION OF AN
INTERMEDIATE REPORT OR PROPOSED FINDINGS, OR OF THE LACK OF WRITTEN OR
ORAL ARGUMENT, THE BOARD DETERMINED TO VACATE ITS ORDERS, TO RESTORE
THE CAUSES TO ITS DOCKET, AND TO RECONSIDER AND REDETERMINE THEM AFTER
GRANTING FULL OPPORTUNITY OF EXCEPTION TO PROPOSED FINDINGS AND
CONCLUSIONS AND AFTER THE SERVICE OF NOTICE OF THE RIGHT OF THE PARTIES
TO SUBMIT BRIEFS AND TO BE HEARD BY THE BOARD IF THEY SHOULD SO
REQUEST.  AMONG THE CASES IN THIS CATEGORY WAS THAT INVOLVING
REPUBLIC. 

APRIL 30, 1938, REPUBLIC MOVED THE CIRCUIT COURT OF APPEALS FOR A
STAY OF THE BOARD'S ORDER AND, UPON THE HEARING OF THE MOTION, THE
BOARD ADVISED THE COURT THAT IT WAS CONSIDERING VACATING THE ORDER. 
MAY 3, UPON EX PARTE APPLICATION OF REPUBLIC, THE COURT ISSUED A RULE,
RETURNABLE MAY 13, REQUIRING THE BOARD TO SHOW CAUSE WHY IT SHOULD NOT
FILE IN THE COURT A CERTIFIED TRANSCRIPT OF THE RECORD OF THE
PROCEEDINGS AGAINST REPUBLIC, AND MADE AN ORDER RESTRAINING THE BOARD
FROM TAKING ANY STEPS OR PROCEEDINGS WHATSOEVER IN THE CAUSE UNTIL THE
RETURN DAY OF THE RULE. 

MAY 13 THE BOARD ANSWERED THE RULE OF MAY 3 STATING THAT THE RECORD
WAS INCOMPLETE BECAUSE THE BOARD HAD DETERMINED ON MAY 3 TO VACATE THE
ORDER AND TO RESTORE THE CAUSE TO THE DOCKET FOR FURTHER PROCEEDINGS
AND HAD BEEN PREVENTED FROM SO DOING BY THE RESTRAINING ORDER ISSUED
MAY 3; THE ANSWER FURTHER SET OUT THAT THE PROVISIONS OF SEC. 10(D) OF
THE NATIONAL LABOR RELATIONS ACT DEPRIVE THE COURT OF JURISDICTION TO
ISSUE THE RESTRAINING ORDER AND OF JURISDICTION TO FORBID THE VACATION
OF THE BOARD'S ORDER AND TO COMPEL THE FILING OF A TRANSCRIPT OF THE
BOARD'S RECORD AS IT STOOD PRIOR TO THE DECISION TO VACATE THE ORDER. 
THE COURT MADE THE RULE ABSOLUTE AND ENJOINED THE BOARD FROM TAKING ANY
FURTHER STEPS OR PROCEEDINGS IN THE CAUSE UNTIL THE TRANSCRIPT WAS
FILED. 

THE PETITION OF THE NATIONAL LABOR RELATIONS BOARD ASSERTS THAT THE
COURT WAS WITHOUT JURISDICTION TO TAKE THIS ACTION AND PRAYS A WRIT OF
MANDAMUS DIRECTING THE JUDGES WHO PARTICIPATED TO VACATE THE ORDER OF
MAY 13, AND A WRIT OF PROHIBITION AGAINST THE EXERCISE OF JURISDICTION
UPON THE PETITION OF REPUBLIC TO SET ASIDE THE ORDER OF APRIL 8 WITHOUT
AFFORDING THE BOARD A REASONABLE OPPORTUNITY TO VACATE IT. 

UPON PRESENTATION OF THE PAPERS WE GRANTED LEAVE TO FILE THEM AND
ENTERED A RULE UPON THE JUDGES OF THE CIRCUIT COURT TO SHOW CAUSE WHY
THE RELIEF SHOULD NOT BE GRANTED AS PRAYED, RETURNABLE MAY 23, AND
DIRECTED THAT, ON THE RETURN DAY, THE PARTIES SHOULD BE HEARD UPON THE
QUESTION OF THE JURISDICTION OF THE COURT TO MAKE THE CHALLENGED
ORDER. 

MAY 21, THE JUDGES FILED THEIR RETURN ADMITTING THE ALLEGATIONS OF
THE PETITION, EXCEPT THOSE AS TO THE RULES AND PRACTICE OF THE BOARD,
AND ITS DETERMINATION TO VACATE THE ORDERS IN THE REPUBLIC AND OTHER
CASES, WHICH IT NEITHER ADMITTED NOR DENIED.  THE RETURN SHOWED THAT
THE ORDER OF MAY 13 WAS MADE IN THE VIEW THAT, UNDER SEC. 10(F) OF THE
ACT, REPUBLIC, BY FILING AND SERVING ITS PETITION FOR RELIEF, AND BY
REQUESTING THE BOARD TO FILE, OR TO DELIVER FOR FILING, A CERTIFIED
TRANSCRIPT, COMPLIED WITH THE JURISDICTIONAL REQUIREMENTS OF THE
STATUTE SO FAR AS WAS WITHIN REPUBLIC'S POWER; THAT THEREUPON IT BECAME
THE DUTY OF THE BOARD FORTHWITH TO FILE A TRANSCRIPT AND THAT, IN THE
JUDGES' OPINION, JURISDICTION OF THE COURT ATTACHED UPON SERVICE OF THE
PETITION FOR REVIEW AND COULD NOT BE DEFEATED BY THE BOARD'S FAILURE TO
PERFORM ITS STATUTORY DUTY, WHICH WAS TO FILE THE TRANSCRIPT.  THE
RETURN FURTHER SHOWS THAT THE COURT WAS OF OPINION THAT POSSIBLE DAMAGE
WOULD RESULT TO REPUBLIC FROM DELAY DUE TO THE FAILURE TO FILE THE
TRANSCRIPT AND THIS CONSIDERATION MOVED THE COURT TO A CONSTRUCTION OF
THE ACT WHICH CALLED FOR THE ENTRY OF ITS ORDER.  THE RETURN CONCLUDES
AS FOLLOWS:  "RECOGNIZING THE DEBATABLE CHARACTER OF THE QUESTION
PRESENTED ON THIS RECORD, THE RESPONDENTS SUBMIT THEMSELVES TO THE
JUDGMENT OF THIS COURT AS TO WHETHER OR NOT THEY HAD JURISDICTION TO
ENTER THE ORDER COMPLAINED OF AND RECORD THEIR READINESS TO VACATE THE
SAME IF, IN THE OPINION OF THIS COURT, JURISDICTION OF THE CAUSE WAS
LACKING." 

AS IS INDICATED BY OUR ACTION ON THE MOTION OF THE BOARD FOR LEAVE TO
FILE, AND BY THE RETURN TO THE RULE, THE QUESTION IS SOLELY OF THE
JURISDICTION OF THE CIRCUIT COURT OF APPEALS.  THIS QUESTION IS TO BE
ANSWERED IN THE LIGHT OF SEC. 10(D)(E) AND (F) OF THE NATIONAL LABOR
RELATIONS ACT, THE PERTINENT PORTIONS OF WHICH ARE IN THE MARGIN.  FN2
COUNSEL FOR THE PETITIONER AND FOR REPUBLIC HAVE PRESENTED THEIR VIEWS
IN ORAL ARGUMENT AND BRIEFS. 

THE BOARD'S PROCEEDINGS ARE ADMINISTRATIVE IN CHARACTER.  ITS FINAL
ACTION IS SUBJECT TO JUDICIAL REVIEW IN THE MANNER SPECIFIED IN THE
ACT.  SUBSECTION (D) OF SEC. 10, IN PLAIN TERMS, INVESTS THE BOARD WITH
AUTHORITY, AT ANY TIME BEFORE THE TRANSCRIPT SHALL HAVE BEEN FILED IN
COURT, TO MODIFY OR SET ASIDE ITS ORDER IN WHOLE OR IN PART.  THE
PURPOSE OF THE PROVISION OBVIOUSLY IS TO AFFORD AN OPPORTUNITY TO
CORRECT ERRORS OR TO CONSIDER NEW EVIDENCE WHICH WOULD RENDER THE ORDER
INADEQUATE OR UNJUST.  THE WORDS USED ARE "UNTIL A TRANSCRIPT OF THE
RECORD  ... SHALL HAVE BEEN FILED IN A COURT, AS HEREINAFTER PROVIDED,"
THE BOARD MAY VACATE OR MODIFY.  THE FOLLOWING SUBSECTIONS, (E) AND
(F), ARE THOSE TO WHICH WE TURN FOR THE CONNOTATION OF THE QUALIFYING
PHRASE.  SUBSECTION (E) GRANTS THE BOARD RESORT TO A COURT FOR THE
ENFORCEMENT OF ITS ORDER.  THAT ENFORCEMENT IS TO BE OBTAINED BY FILING
A PETITION FOR ENFORCEMENT AND FILING A CERTIFIED TRANSCRIPT OF THE
BOARD'S PROCEEDINGS.  THE SUBSECTION PROCEEDS:  "UPON SUCH FILING, THE
COURT SHALL CAUSE NOTICE THEREOF TO BE SERVED UPON" THE PERSON AGAINST
WHOM ENFORCEMENT IS ASKED.  HERE IT IS QUITE PLAIN THAT THE COURT IS
WITHOUT JURISDICTION TO TAKE ACTION AT THE BEHEST OF THE BOARD UNTIL
THE TRANSCRIPT SHALL HAVE BEEN FILED AND NOTICE OF THE FILING OF THE
PETITION AND THE TRANSCRIPT HAS BEEN SERVED.  SUBSECTION (F) AFFORDS
RELIEF TO "ANY PERSON AGGRIEVED BY A FINAL ORDER OF THE BOARD GRANTING
OR DENYING IN WHOLE OR IN PART THE RELIEF SOUGHT,  ...  "  SUCH A
PERSON, THE STATUTE DECLARES, "MAY OBTAIN A REVIEW" OF THE BOARD'S
ORDER BY FILING IN COURT "A WRITTEN PETITION PRAYING THAT THE ORDER OF
THE BOARD BE MODIFIED OR SET ASIDE."  A COPY OF THE PETITION IS TO BE
SERVED FORTHWITH UPON THE BOARD, AND "THEREUPON THE AGGRIEVED PARTY
SHALL FILE IN THE COURT A TRANSCRIPT" OF THE BOARD'S PROCEEDINGS. 
"UPON SUCH FILING, THE COURT SHALL PROCEED IN THE SAME MANNER AS IN THE
CASE OF AN APPLICATION BY THE BOARD UNDER SUBSECTION (E),  ...  "
PLAINLY THE COURT MAY NOT PROCEED TO REVIEW THE BOARD'S ORDER UNDER
EITHER SECTION UNTIL A TRANSCRIPT IS FILED. 

COUNSEL FOR REPUBLIC URGE, IN SUPPORT OF THE CIRCUIT COURT'S ACTION,
THAT THE WORDS, "AS HEREINAFTER PROVIDED," IN SUBSECTION (D), REFER TO
THE FILING OF THE TRANSCRIPT REQUIRED IN AN ENFORCEMENT PROCEEDING
INITIATED BY THE BOARD AUTHORIZED BY SUBSECTION (E) BUT CANNOT HAVE
REFERENCE TO A PROCEEDING FOR REVIEW INITIATED BY ANY OTHER PARTY
BEFORE THE BOARD PURSUANT TO SUBSECTION (F).  THE WORDS OF THE STATUTE
DO NOT WARRANT THIS CONSTRUCTION.  TWO FILINGS ARE REQUIRED BY
SUBSECTION (F), THE FIRST OF A PETITION, THE SECOND OF A TRANSCRIPT. 
AFTER PRESCRIBING THE SECOND, THE ACT PROVIDES THAT "UPON SUCH FILING,
THE COURT SHALL PROCEED IN THE SAME MANNER AS IN THE CASE OF AN
APPLICATION BY THE BOARD UNDER SUBSECTION (E),  ...  "  THE REFERENCE
CLEARLY IS TO THE FILING OF THE TRANSCRIPT AND NOT TO THE FILING OF THE
PETITION.  THE CONTENTION THAT THE ACT CANNOT BE APPLIED IN ACCORDANCE
WITH ITS APPARENT INTENT IS THAT, AS ONLY THE BOARD CAN CERTIFY THE
PROCEEDINGS, AND THE PETITIONER UNDER SUBSECTION (F) MUST FILE THE
CERTIFIED TRANSCRIPT, SUCH A CONSTRUCTION WOULD ENABLE THE BOARD TO
HOLD THE TRANSCRIPT FOR AN INDEFINITE PERIOD AND THUS HARASS AND
EMBARRASS A LITIGANT, AND DELAY, AND PERHAPS DENY, ANY EFFECTIVE
JUDICIAL REVIEW.  NO SUCH CASE IS HERE PRESENTED.  WE HAVE NO OCCASION
TO DETERMINE WHAT, IF ANY, RELIEF MAY BE NEEDED BY OR AVAILABLE TO A
PARTY WHO HAS FILED HIS PETITION FOR REVIEW, WHERE THE BOARD DOES NOT
DESIRE TO MODIFY OR SET ASIDE ITS ORDER BUT FAILS OR REFUSES TO FURNISH
A TRANSCRIPT OF ITS PROCEEDINGS. 

JURISDICTION AS THE TERM IS TO BE APPLIED IN THIS INSTANCE, IS THE
POWER TO HEAR AND DETERMINE THE CONTROVERSY PRESENTED, IN A GIVEN SET
OF CIRCUMSTANCES.  A COURT HAS JURISDICTION, IN ANOTHER USE OF THE
TERM, TO EXAMINE THE QUESTION WHETHER THAT POWER IS CONFERRED UPON IT
IN THE CIRCUMSTANCES DISCLOSED, BUT IF IT FINDS SUCH POWER IS NOT
GRANTED IT LACKS JURISDICTION OF THE SUBJECT MATTER AND MUST REFRAIN
FROM ANY ADJUDICATION OF RIGHTS IN CONNECTION THEREWITH.  SINCE THE
STATUTE EMPOWERS THE BOARD, BEFORE THE FILING OF A TRANSCRIPT, TO
VACATE OR MODIFY ITS ORDERS, CERTAINLY IT DOES NOT CONFER JURISDICTION
UPON THE REVIEWING COURT TO PROHIBIT THE EXERCISE OF THE GRANTED
POWER.  IT IS OBVIOUS THAT CONGRESS INTENDED TO CONFER NO JURISDICTION
UPON THE REVIEWING COURT TO PREVENT THE BOARD FROM SEASONABLY VACATING
OR MODIFYING ITS ORDER SO AS TO MAKE IT COMPORT WITH RIGHT AND
JUSTICE.  THE ACT PLAINLY INDICATES THAT THE PURPOSE WAS TO GIVE THE
COURT FULL AND EXCLUSIVE JURISDICTION TO REVIEW THE BOARD'S ORDER IN
THE RESPECTS INDICATED BY THE ACT ONCE THE TRANSCRIPT OF THE BOARD'S
PROCEEDINGS IS BEFORE IT.  IT IS EQUALLY PLAIN THAT THE COURT IS TO
HAVE NO POWER TO PREVENT THE BOARD FROM VACATING OR MODIFYING ITS ORDER
PRIOR TO SUCH PLENARY SUBMISSION OF THE CAUSE. 

COUNSEL FOR REPUBLIC URGES THAT THE BOARD'S PETITION TO THIS COURT
INDICATES THAT IT DOES NOT INTEND IRREVOCABLY TO ABANDON ITS FORMER
ORDER BUT MERELY TO REGULARIZE IT AND RE-ENTER IT AFTER REGULARIZATION
AND THAT THE ACT GIVES NO POWER TO DO THIS AFTER THE BOARD HAS HEARD
THE CASE AND ISSUED AN ORDER.  WE HAVE NO OCCASION TO SPECULATE UPON
THE FUTURE PROCEEDINGS BEFORE THE BOARD.  IT IS ENOUGH THAT THE
PETITION SHOWS THAT THE BOARD DESIRED TO AND WOULD HAVE VACATED ITS
ORDER HAD IT NOT BEEN RESTRAINED BY THE ACTION OF THE COURT.  WHAT THE
LEGAL EFFECT OF ITS FUTURE PROCEEDINGS MAY BE WE NEED NOT DECIDE. 

COUNSEL INSIST THAT REPUBLIC IS AGGRIEVED, WITHIN THE MEANING OF
SUBSECTION (F), BY THE BOARD'S ATTEMPT TO RETAIN JURISDICTION OF THE
PROCEEDING AND TAKE FURTHER STEPS IN IT.  BUT THE ACT GRANTS A REVIEW
AND RELIEF ONLY TO A PERSON AGGRIEVED BY AN ORDER OF THE BOARD, AND HAD
THE COURT NOT RESTRAINED THE BOARD ITS ORDER WOULD HAVE BEEN VACATED
AND THERE NOW WOULD BE NO ORDER OUTSTANDING.  THE BOARD IS GIVEN NO
POWER OF ENFORCEMENT.  COMPLIANCE IS NOT OBLIGATORY UNTIL THE COURT, ON
PETITION OF THE BOARD OR ANY PARTY AGGRIEVED, SHALL HAVE ENTERED A
DECREE ENFORCING THE ORDER AS MADE, OR AS MODIFIED BY THE COURT. 
STATUTORY AUTHORITY TO THE BOARD TO VACATE ITS ORDER PRIOR TO THE
FILING OF THE TRANSCRIPT DOES NOT SEEM TO US TO DIFFER MATERIALLY FROM
A LIKE STATUTORY AUTHORITY TO A MASTER IN CHANCERY TO MODIFY OR RECALL
HIS REPORT TO A COURT AFTER SUBMISSION BUT BEFORE ACTION BY THE COURT. 
NO ONE COULD SUCCESSFULLY CLAIM TO BE AGGRIEVED IN A LEGAL SENSE BY
SUCH A STATUTORY PROVISION OR ASSERT THAT THE LEGISLATURE IS
INCOMPETENT TO CONFER SUCH POWER UPON A MASTER WITH CONSEQUENT LACK OF
JURISDICTION IN THE COURT TO FORBID ITS EXERTION. 

THE INVESTITURE OF A COURT WITH JURISDICTION TO REVIEW AN ORDER ON
THE MERITS ONLY UPON THE FILING OF A TRANSCRIPT EXHIBITING THE BOARD'S
FINAL ACTION IS NOT A DENIAL OF DUE PROCESS AS SUGGESTED BY COUNSEL. 

WE THINK THE WRITS PRAYED ARE APPROPRIATE REMEDIES IN THE
CIRCUMSTANCES DISCLOSED.  FN3  THE CIRCUIT COURT WAS WITHOUT
JURISDICTION OF THE SUBJECT MATTER.  IF THE BOARD HAD COMPLIED WITH THE
ORDERS MADE, A HEARING WOULD HAVE RESULTED RESPECTING THE LEGALITY OF
SUPPOSED ACTION OF THE BOARD WHICH WAS NOT IN LAW OR FACT THE FINAL
ACTION, REVIEW OF WHICH THE STATUTE PROVIDES.  NO ADEQUATE REMEDY WOULD
BE OPEN TO THE BOARD BY WAY OF CERTIORARI FROM THE COURT'S ULTIMATE
REVIEW OF AN ORDER WHICH THE BOARD WAS AUTHORIZED AND DESIRED TO SET
ASIDE. 

THE EXPRESSION IN THE RETURN OF READINESS TO VACATE THE ORDER ENTERED
IN THE CIRCUIT COURT, IF THIS COURT IS OF OPINION THAT THE TRIBUNAL
LACKED JURISDICTION, RENDERS THE PRESENT ISSUE OF PROCESS
SUPEREROGATORY.  SHOULD THE ORDER NOT BE VACATED AND OCCASION THUS
ARISE FOR THE AWARD OF PROCESS, THE CLERK MAY ISSUE IT UPON THE ORDER
OF A JUSTICE OF THIS COURT. 

FN1  49 STAT. 454; U.S.C., SUPP. II, TIT. 29, SEC. 160(D)(E)(F). 

FN2  "(D)  UNTIL A TRANSCRIPT OF THE RECORD IN A CASE SHALL HAVE BEEN
FILED IN A COURT, AS HEREINAFTER PROVIDED, THE BOARD MAY AT ANY TIME,
UPON REASONABLE NOTICE AND IN SUCH MANNER AS IT SHALL DEEM PROPER,
MODIFY OR SET ASIDE, IN WHOLE OR IN PART, ANY FINDING OR ORDER MADE OR
ISSUED BY IT. 

"(E)  THE BOARD SHALL HAVE POWER TO PETITION ANY CIRCUIT COURT OF
APPEALS  ...  FOR THE ENFORCEMENT OF SUCH ORDER AND FOR APPROPRIATE
TEMPORARY RELIEF OR RESTRAINING ORDER, AND SHALL CERTIFY AND FILE IN
THE COURT A TRANSCRIPT OF THE ENTIRE RECORD IN THE PROCEEDING,
INCLUDING THE PLEADINGS AND TESTIMONY UPON WHICH SUCH ORDER WAS ENTERED
AND THE FINDINGS AND ORDER OF THE BOARD.  UPON SUCH FILING, THE COURT
SHALL CAUSE NOTICE THEREOF TO BE SERVED UPON SUCH PERSON, AND THEREUPON
SHALL HAVE JURISDICTION OF THE PROCEEDING AND OF THE QUESTION
DETERMINED THEREIN,  ... 

"(F)  ANY PERSON AGGRIEVED BY A FINAL ORDER OF THE BOARD GRANTING OR
DENYING IN WHOLE OR IN PART THE RELIEF SOUGHT MAY OBTAIN A REVIEW OF
SUCH ORDER IN ANY CIRCUIT COURT OF APPEALS  ...  BY FILING IN SUCH
COURT A WRITTEN PETITION PRAYING THAT THE ORDER OF THE BOARD BE
MODIFIED OR SET ASIDE.  A COPY OF SUCH PETITION SHALL BE FORTHWITH
SERVED UPON THE BOARD, AND THEREUPON THE AGGRIEVED PARTY SHALL FILE IN
THE COURT A TRANSCRIPT OF THE ENTIRE RECORD IN THE PROCEEDING,
CERTIFIED BY THE BOARD, INCLUDING THE PLEADING AND TESTIMONY UPON WHICH
THE ORDER COMPLAINED OF WAS ENTERED AND THE FINDINGS AND ORDER OF THE
BOARD.  UPON SUCH FILING, THE COURT SHALL PROCEED IN THE SAME MANNER AS
IN THE CASE OF AN APPLICATION BY THE BOARD UNDER SUBSECTION (E).  ...
" 

FN3  COMPARE VIRGINIA V. RIVES, 100 U.S. 313, 329; IN RE RICE, 155
U.S. 396, 402; IN RE NEW YORK & PORTO RICO S.S. CO., 155 U.S. 523; IN
RE ATLANTIC CITY RAILROAD, 164 U.S. 633; IN RE WINN, 213 U.S. 458, 466
468; EX PARTE HARDING, 219 U.S. 363, 377; EX PARTE OKLAHOMA, 220 U.S.
191, 208; EX PARTE CHICAGO, R.I. & P. RY., 255 U.S. 273, 275. 

MR. JUSTICE STONE AND MR. JUSTICE CARDOZO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BUTLER, DISSENTING. 

THE CASE IS NOT HERE AS IF ON WRIT OF CERTIORARI OR APPEAL FOR REVIEW
OF ERROR ALLEGED TO HAVE BEEN COMMITTED BY THE LOWER COURT.  THIS IS AN
APPLICATION FOR THE WRITS OF MANDAMUS AND PROHIBITION TO COMMAND AND
RESTRAIN ACTION BY THE JUDGES NAMED.  THESE MAY NOT BE GRANTED UNLESS
THE LOWER COURT WAS PLAINLY WITHOUT JURISDICTION TO HEAR AND DETERMINE
THE CASE OR THE PARTICULAR ISSUE.  IN RE NEW YORK & P.R.S.S. CO., 155
U.S. 523, 531.  EX PARTE OKLAHOMA, 220 U.S. 191, 208.  EX PARTE
CHICAGO, R.I. & P. RY., 255 U.S. 273, 275.  PRECISELY, THE QUESTION IS
WHETHER, ON THE FACTS HERE DISCLOSED, THE COURT WAS WITHOUT POWER TO
CONSIDER AND DECIDE UPON THE CORPORATION'S APPLICATION FOR AN ORDER
DIRECTING THE BOARD TO CERTIFY AND FILE A TRANSCRIPT OF THE RECORD AND
RESTRAINING IN THE MEANTIME ANY OTHER ACTION BY IT.  THE DECISION JUST
ANNOUNCED ANSWERS AFFIRMATIVELY, AND THAT IS THE BASIS ON WHICH THE
COURT COMMANDS VACATION OF THE ORDER OF THE LOWER COURT AND PROHIBITS
IT FROM REVIEWING THE ORDER OF THE BOARD WITHOUT FIRST GIVING IT A
REASONABLE OPPORTUNITY TO VACATE ITS ORDER; THAT IS, WITHOUT GIVING THE
BOARD MORE TIME TO PROCEED UNDER SEC. 10(D).  OBVIOUSLY JURISDICTION OF
THE CIRCUIT COURT OF APPEALS ATTACHED UPON THE FILING OF THE
CORPORATION'S PETITION FOR REVIEW AND SERVICE OF A COPY ON THE BOARD. 
ANY OTHER CONSTRUCTION OF SEC. 10(F) WOULD LET THE BOARD, BY REFUSING
TO CERTIFY A TRANSCRIPT OF PROCEEDINGS BEFORE IT, PREVENT JUDICIAL
REVIEW OF ITS ORDERS.  CONGRESS DID NOT SO INTEND.  WHILE THE STATUTE
EXPRESSLY REQUIRES THE PERSON AGGRIEVED TO FILE A CERTIFIED TRANSCRIPT,
IT IMPLIEDLY, BUT NOT LESS PLAINLY, COMMANDS THE BOARD TO CERTIFY THE
RECORD.  THIS COURT'S DECISION RESTS ON THE STATEMENT THAT, AS THE TERM
IS TO BE APPLIED IN THIS INSTANCE, JURISDICTION IS THE POWER TO HEAR
AND DETERMINE THE CONTROVERSY PRESENTED IN A GIVEN SET OF
CIRCUMSTANCES.  IF THE LOWER COURT HAD JURISDICTION TO ENTERTAIN AND
DECIDE THE CORPORATION'S MOTION, WRITS OF MANDAMUS AND PROHIBITION MAY
NOT BE GRANTED, FOR THEY ARE NOT AVAILABLE FOR CORRECTION OF MERE ERROR
OR EVEN ABUSE OF DISCRETION.  INTERSTATE COMMERCE COMM'N V. NEW YORK,
N.H. & H.R. CO., 287 U.S. 178, 203-204.  EX PARTE WHITNEY, 13 PET. 404,
408.  EX PARTE TAYLOR, 14 HOW.  3, 13.  EX PARTE RAILWAY CO., 101 U.S.
711, 720.  IN RE HAWKINS, PETITIONER, 147 U.S. 486, 490.  IN RE
ATLANTIC CITY RAILROAD, 164 U.S. 633, 635.  IN RE JAMES POLLITZ, 206
U.S. 323, 331.  CF. EX PARTE SIMONS, 247 U.S. 231, 240. 

STRIPPED OF UNNECESSARY DETAILS AND LANGUAGE, THE CIRCUMSTANCES UNDER
WHICH THE LOWER COURT MADE THE CHALLENGED ORDER MAY BE STATED BRIEFLY. 

UPON CHARGES MADE BY THE STEEL WORKERS' ORGANIZING COMMITTEE, THE
BOARD, JULY 15, 1937, ISSUED COMPLAINT ALLEGING THAT THE CORPORATION
WAS ENGAGING IN UNFAIR LABOR PRACTICES.  THE CORPORATION JOINED ISSUE. 
BEFORE IT FILED ANSWER, HEARINGS WERE HELD BY THE BOARD, FROM JULY 21
TO JULY 24.  AFTER ANSWER, THERE WERE HEARINGS BEFORE AN EXAMINER AT
VARIOUS TIMES AND PLACES BETWEEN AUGUST 9 AND SEPTEMBER 27.  APRIL 8,
1938, THE BOARD MADE ITS DECISION AND ORDER.  IT FOUND THE CORPORATION
GUILTY OF PRACTICES DENOUNCED BY THE ACT.  IT ORDERED IT TO CEASE AND
DESIST, TO REINSTATE CERTAIN PERSONS, TO PAY SUFFICIENT TO EQUALIZE
WHAT CERTAIN PERSONS WOULD HAVE EARNED IF EMPLOYED BY THE CORPORATION
DURING SPECIFIED PERIODS, LESS THE AMOUNT THEY EARNED AT OTHER WORK
DURING THOSE PERIODS. 

APRIL 18, THE CORPORATION FILED IN THE CIRCUIT COURT OF APPEALS ITS
PETITION TO HAVE THE BOARD'S ORDER ADJUDGED INVALID.  THE PETITION
CHARGES THAT, IN VIOLATION OF THE CORPORATION'S RIGHTS UNDER THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT, THE BOARD ORDERED THE
CORPORATION TO REINSTATE PERSONS NOT ALLEGED IN THE COMPLAINT TO HAVE
BEEN UNLAWFULLY DISCHARGED OR DISCRIMINATED AGAINST BY THE CORPORATION;
AND SO DIRECTED NOTWITHSTANDING THE CORPORATION HAD NEVER BEEN ACCORDED
OR OFFERED A HEARING OR OPPORTUNITY OF MAKING DEFENSE AS TO THE
ASSERTED RIGHTS OF THOSE PERSONS; THAT THE BOARD MADE THE ORDER WITHOUT
AFFORDING THE CORPORATION OPPORTUNITY TO PRESENT ITS CASE BY ARGUMENT,
ORALLY OR UPON BRIEF.  IT ALLEGES THAT, UNDER THE TERMS OF THE ORDER,
ABOUT FIVE THOUSAND PERSONS MAY CLAIM REINSTATEMENT, PETITIONER IS
REQUIRED TO REINSTATE OR PAY THEM AS SPECIFIED, THE AVERAGE WAGE IS
$6.50 PER DAY.  AND IT ASSERTS THAT TO DEFER REINSTATEMENT, PENDING
DECISION BY THE COURT AS TO VALIDITY OF THE ORDER, WOULD INVOLVE A RISK
OF SUCH MAGNITUDE AS IMMINENTLY TO THREATEN ITS RIGHT TO HAVE REVIEW IN
COURT.  AND THE PETITION AVERS THAT UNLESS THE ORDER BE STAYED,
IRREPARABLE INJURY AND LOSS WILL RESULT TO THE CORPORATION AND THAT IT
WILL BE DENIED REVIEW OF A SUBSTANTIAL PART OF THE ORDER.  IT PRAYS
SERVICE OF A COPY ON THE BOARD, CERTIFICATION BY THE BOARD OF THE
TRANSCRIPT AS REQUIRED BY LAW, INVALIDATION OF THE ORDER, DIRECTION TO
THE BOARD TO DISMISS ITS COMPLAINT, AND A STAY OF THE ORDER AND OF
PROCEEDINGS BY THE BOARD TO ENFORCE IT, EXCEPTING SUCH AS MAY BE TAKEN
IN COURT. 

APRIL 18, THE DAY ON WHICH THE CORPORATION FILED PETITION FOR REVIEW,
THE BOARD, CONSISTENTLY WITH THE CORPORATION'S CLAIM AS TO ITS DUTY
UNDER THE ACT, AGREED PROMPTLY TO CERTIFY THE TRANSCRIPT AND TO FILE IT
IN COURT.  APRIL 22, THE CORPORATION FILED AN APPLICATION FOR STAY AND
TEMPORARY RELIEF.  ITS APPLICATION CITED SEC. 10(G), WHICH DECLARES
THAT COMMENCEMENT OF PROCEEDINGS UNDER SEC. 10(F) SHALL NOT, UNLESS
SPECIFICALLY ORDERED BY THE COURT, OPERATE AS A STAY OF THE BOARD'S
ORDER.  IT STATED:  THE PURPOSE OF THE APPLICATION WAS TO PREVENT
IRREPARABLE LOSS AND DENIAL OF REVIEW.  IF, PENDING FINAL DETERMINATION
OF THE CASE, PETITIONER SHOULD FAIL TO MAKE REINSTATEMENTS IN
ACCORDANCE WITH THE ORDER, ITS POTENTIAL WEEKLY LIABILITY WOULD EXCEED
$95,000.  ON THAT BASIS THE CORPORATION SOUGHT SUSPENSION OF THE
PORTION OF THE ORDER THAT RELATES TO REINSTATEMENT OR PAYMENT OF WAGES,
SO THAT, IF IT SHOULD BE UPHELD, THE CORPORATION'S LIABILITY TO
REINSTATE OR TO PAY WOULD COMMENCE TEN DAYS AFTER THE FINAL DECREE OF
THE COURT.  IN A BRIEF SUBMITTED IN SUPPORT OF ITS MOTION, THE
CORPORATION MAINTAINED THAT THE ORDER IS INVALID BECAUSE THE
CORPORATION WAS NOT AFFORDED A FAIR AND FULL HEARING AND BECAUSE THE
ORDER IS ONE FOR REEMPLOYMENT AND NOT FOR REINSTATEMENT; AND THAT
UNLESS THE STAY BE GRANTED, THE CORPORATION WILL SUFFER IRREPARABLE
FINANCIAL LOSSES. 

APRIL 30 THE CORPORATION'S MOTION CAME ON FOR HEARING.  THE BOARD
APPEARED AND ARGUED AGAINST IT.  THE COURT NEITHER GRANTED NOR DENIED
THE APPLICATION.  THE RULE TO SHOW CAUSE, ISSUED MAY 3, RECITES THAT AT
THE HEARING, APRIL 30, THE BOARD STATED THAT IT "WAS SERIOUSLY
CONSIDERING WITHDRAWING, MODIFYING OR CHANGING ITS ORDER IN THE CASE
AND REOPENING SAME."  THE BOARD'S APPLICATION FOR VACATION OF THAT
ORDER STATES THAT AT THE HEARING ON APRIL 30 THE BOARD ADVISED THE
COURT THAT IT WAS CONTEMPLATING VACATING ITS ORDER, AND WOULD ADVISE
THE COURT OF ITS FINAL POSITION NOT LATER THAN MAY 4, 1938; THAT, ON
MAY 3, IT NOTIFIED THE CORPORATION THAT IT HAD DEFINITELY DECIDED TO
VACATE THE ORDER; BUT THAT, BEFORE ANY STEPS TO DO SO COULD BE TAKEN,
THE COURT HAD ISSUED THE RESTRAINING ORDER.  THE BOARD MAINTAINED THAT
AS THE TRANSCRIPT HAD NOT BEEN FILED, SEC. 10(D) WAS APPLICABLE AND
THAT THE BOARD THEN HAD THE RIGHT TO WITHDRAW OR VACATE THE ORDER. 

IN ITS ANSWER TO THE RULE TO SHOW CAUSE, THE BOARD SAYS THAT IT WAS
NOT GUILTY OF REFUSAL TO CERTIFY OR OF DILATORY TACTICS, AND THAT ON
APRIL 18 ITS COUNSEL INFORMED THE CORPORATION'S COUNSEL THAT THE BOARD
WOULD AS PROMPTLY AS POSSIBLE PREPARE THE RECORD FOR CERTIFICATION. 
"THIS TASK OF CONSIDERABLE MAGNITUDE WAS FORTHWITH COMMENCED AND WAS
INCOMPLETE A WEEK LATER WHEN THE SUPERVENING DECISION OF THE SUPREME
COURT IN MORGAN V. UNITED STATES, 304 U.S. 1, WAS RENDERED.  ...  THERE
IS NO QUESTION IN THIS CASE, THEREFORE, WHETHER THE COURT HAD
JURISDICTION TO REQUIRE THE BOARD TO FILE A RECORD WHEN SUCH FILING HAS
BEEN LONG DELAYED OR REFUSED BY THE BOARD.  THE BOARD HAS WITH ALL
PROMPTNESS ELECTED TO EXERCISE ITS POWER TO VACATE ITS ORDER UNDER SEC.
10(D), AND THERE IS NO MERIT IN PETITIONER'S CLAIM THAT THAT SECTION IS
INAPPLICABLE BECAUSE THE BOARD HAS EVADED ITS OBLIGATIONS UNDER THE
ACT."    IN THESE CIRCUMSTANCES THE COURT DID NOT LACK JURISDICTION TO
HEAR AND DETERMINE THE CONTROVERSY PRESENTED BY THE CORPORATION'S
APPLICATION FOR AN ORDER DIRECTING THE BOARD TO CERTIFY THE RECORD FOR
FILING IN COURT.  THE ACT CONTEMPLATES PROMPT ACTION.  SECTION 10(I)
DECLARES THAT PETITIONS FILED UNDER IT SHALL BE HEARD EXPEDITIOUSLY
"AND IF POSSIBLE WITHIN TEN DAYS AFTER THEY HAVE BEEN DOCKETED."  POWER
UNDER SEC. 10(D) TO CHANGE OR VACATE ITS ORDER DOES NOT ENABLE THE
BOARD TO DELAY FILING THE RECORD.  AT THE BAR COUNSEL EXPRESSED THE
OPINION THAT THE BOARD MAY VACATE AN ORDER WITHOUT NOTICE, SEC. 10(D). 
IT HAD FIFTEEN DAYS, APRIL 18 TO MAY 3, TO DECIDE WHETHER TO VACATE THE
ORDER OR JOIN ISSUE.  THAT PERIOD INCLUDED A WEEK BEFORE AND A WEEK
AFTER OUR DECISION IN MORGAN V. UNITED STATES, SUPRA.  THE BOARD DOES
NOT CLAIM THAT IT NEEDED UNTIL MAY 3 TO CERTIFY THE TRANSCRIPT.  SO THE
ISSUE BEFORE THE LOWER COURT WAS THE VERY NARROW ONE, WHETHER FOR AN
UNREASONABLE LENGTH OF TIME THE BOARD WITHHELD THE RECORD.  AND THAT
QUESTION INVOLVES CONSIDERATION OF SUBSIDIARY ONES:  TO WHAT EXTENT, IF
AT ALL, A CERTIFICATION MAY BE DELAYED BY THE CHOICE OF THE BOARD TO
ENABLE IT TO CONSIDER MODIFICATION OR REPEAL OF ITS ORDER.  WHETHER
AFTER DECISION IN MORGAN V. UNITED STATES MORE THAN A REASONABLE TIME
HAD ELAPSED.  WHILE THERE IS ROOM FOR DIFFERENCE OF OPINION ON THESE
QUESTIONS, IT IS VERY HARD TO PERCEIVE ON WHAT GROUND IT MAY BE HELD
THAT THE COURT WAS WITHOUT JURISDICTION TO DECIDE THEM, OR EVEN TO
CONCLUDE THAT THE ORDER WAS AN ARBITRARY EXERTION OF POWER, OR THAT
RESTRAINT AGAINST FURTHER DELAY BY THE BOARD INVOLVED AN ABUSE OF
DISCRETION. 

I AM OF OPINION THAT THE LOWER COURT HAD JURISDICTION OF THE CASE AND
OF THE ISSUES DECIDED BY THE CHALLENGED ORDER, AND THAT THEREFORE THE
BOARD'S APPLICATION FOR WRITS OF MANDAMUS AND PROHIBITION SHOULD BE
DENIED. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 
..END :















WRIGHT V. UNION CENTRAL INS. CO., 304 U.S. 502 


NOS. 715 AND 716.  ARGUED APRIL 6, 1938.  - DECIDED MAY 31, 1938.  - 91
F.2D 894, AFFIRMED IN PART, REVERSED IN PART. 


1.  THE FILING BY A FARMER DEBTOR OF A PETITION FOR COMPOSITION AND
EXTENSION, AND AN AMENDED PETITION TO BE ADJUDGED BANKRUPT, UNDER SEC.
75 OF THE BANKRUPTCY ACT BEFORE ITS AMENDMENT BY THE ACT OF AUGUST 28,
1935, DID NOT BRING WITHIN THE CONTROL OF THE BANKRUPTCY COURT
MORTGAGED LAND LISTED IN THE SCHEDULES AS HIS PROPERTY AND OF WHICH HE
ACQUIRED THE EQUITY DURING THE PROCEEDING, BUT IN WHICH HE HELD NO
INTEREST WHEN THE PETITIONS WERE FILED.  P. 507. 

2.  LAND IN WHICH A FARMER DEBTOR HAD AN EQUITY OF REDEMPTION, BUT
WHICH WAS NOT SUBJECT TO ADMINISTRATION IN A PENDING PROCEEDING UNDER
SEC. 75 OF THE BANKRUPTCY ACT BECAUSE HIS INTEREST IN IT WAS ACQUIRED
AFTER THE FILING OF HIS PETITION, WAS NOT BROUGHT WITHIN THE
JURISDICTION BY THE ENACTMENT OF THE AMENDATORY ACT OF AUGUST 28, 1935,
AND THE FILING OF AN AMENDED PETITION UNDER SUBSECTION (S) AS AMENDED,
WHERE THOSE EVENTS OCCURRED AFTER HIS INTEREST HAD BEEN EXTINGUISHED BY
A FORECLOSURE OF THE MORTGAGE IN A STATE COURT FOLLOWED BY A JUDICIAL
SALE OF THE LAND AND EXPIRATION OF THE PERIOD FOR REDEMPTION ALLOWED BY
THE STATE LAW.  P. 508. 

3.  LAND SUBJECT TO MORTGAGE WAS SCHEDULED BY A FARMER DEBTOR AS HIS
PROPERTY, IN A PROCEEDING FOR COMPOSITION AND EXTENSION BROUGHT UNDER
SEC. 75 OF THE BANKRUPTCY ACT.  HE HAD NO INTEREST IN THE LAND WHEN THE
PETITION WAS FILED, BUT LATER RECEIVED A CONVEYANCE OF IT FROM OWNERS
OF THE EQUITY OF REDEMPTION.  THE MORTGAGE WAS FORECLOSED AND THE
MORTGAGEE BOUGHT IN THE LAND AT A JUDICIAL SALE, BUT THE PERIOD FOR
REDEMPTION ALLOWED BY THE STATE LAW HAD NOT EXPIRED BEFORE SEC. 75 WAS
AMENDED BY THE ACT OF AUGUST 28, 1935, AND THE DEBTOR FILED HIS
PETITION TO BE ADJUDGED BANKRUPT, UNDER SUBSECTION (S), AS SO AMENDED. 
HELD, APPLYING AMENDED SUBSECTION (N), THAT UPON THE FILING OF THE
AMENDED PETITION THE PROPERTY WAS BROUGHT WITHIN THE CONTROL OF THE
BANKRUPTCY COURT AND THE TIME FOR REDEMPTION WAS EXTENDED.  P. 509. 

4.  THE PROVISION OF SEC. 75(N) OF THE BANKRUPTCY ACT, AS AMENDED,
FOR EXTENSION OF PERIOD FOR REDEMPTION, HELD CONSTITUTIONAL AS APPLIED
AGAINST A MORTGAGE CREDITOR WHO FORECLOSED BY SUIT IN AN INDIANA COURT
AND BOUGHT IN THE LAND AT A JUDICIAL SALE, BUT AS TO WHOM THE RIGHT OF
THE DEBTOR TO REDEEM, UNDER THE INDIANA LAW, HAD NOT EXPIRED WHEN HIS
PETITION TO BE ADJUDGED BANKRUPT WAS FILED UNDER SEC. 75, AS AMENDED. 
P. 513. 

THE PROVISION IS WITHIN THE BANKRUPTCY POWER AND NOT INCONSISTENT
WITH THE RIGHTS OF THE CREDITOR-PURCHASER UNDER THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT.  IT IS NOT AN INVASION OF POWER RESERVED TO THE
STATE BY THE TENTH AMENDMENT.  P. 515. 

WRIGHT V. UNION CENTRAL LIFE INSURANCE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 303 U.S. 630, TO REVIEW THE AFFIRMANCE OF TWO ORDERS OF
THE DISTRICT COURT IN BANKRUPTCY, THE ONE STRIKING CERTAIN DESCRIBED
REAL ESTATE FROM THE DEBTOR'S SCHEDULES, THE OTHER REFUSING TO PERMIT
AN AMENDMENT OF THE SCHEDULES. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITION FOR WRITS OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT
OF APPEALS FOR THE SEVENTH CIRCUIT WAS GRANTED BY THIS COURT TO REVIEW
THE JUDGMENTS IN TWO APPEALS BROUGHT TO THE LOWER COURT BY PETITIONER
HERE.  WRIGHT V. UNION CENTRAL LIFE INS. CO., 91 F.2D 894.  THE
JUDGMENTS AFFIRMED TWO ORDERS OF THE DISTRICT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF INDIANA, ENTERED THERE IN
PROCEEDINGS UNDER SEC. 75 OF THE BANKRUPTCY ACT INSTITUTED BY WRIGHT. 

THE EARLIER ORDER APPROVED THE RECOMMENDATION OF THE CONCILIATION
COMMISSIONER TO STRIKE CERTAIN DESCRIBED REAL ESTATE FROM THE DEBTOR'S
SCHEDULES, AND THE LATER ORDER REFUSED TO PERMIT THE DEBTOR TO AMEND
THE SCHEDULES BY SHOWING THE CIRCUMSTANCES UNDER WHICH THE DEBTOR
CLAIMED AN INTEREST IN THE SAME REAL ESTATE COVERED BY THE EARLIER
MOTION.  THE CORRECTNESS OF THE ORDERS DEPENDS LARGELY UPON THE
CONSTITUTIONAL VALIDITY OF CERTAIN PROVISIONS OF SEC. 75(N) OF THE
BANKRUPTCY ACT, AS AMENDED BY SEC. 4 OF THE ACT OF AUGUST 28, 1935.  49
STAT. 942.  THESE PROVISIONS, HELD UNCONSTITUTIONAL BY THE LOWER COURT,
OPERATE TO EXTEND THE PERIOD OF REDEMPTION FROM A FORECLOSURE SALE
ALLOWED THE MORTGAGOR UNDER STATE LAW.  TO DECIDE THIS IMPORTANT
CONSTITUTIONAL QUESTION, OUR WRITS OF CERTIORARI WERE ISSUED.  IN VIEW
OF SEC. 1 OF THE ACT OF AUGUST 24, 1937, C. 754, 28 U.S.C. SEC. 401,
FN1  ENACTED SUBSEQUENT TO THE DECISION OF THE CASE BELOW, THE COURT
CERTIFIED TO THE ATTORNEY GENERAL THE FACT THAT THE CONSTITUTIONALITY
OF AN ACT OF CONGRESS AFFECTING THE PUBLIC INTEREST WAS DRAWN IN
QUESTION IN THIS CAUSE.  THE ATTORNEY GENERAL DISCLAIMED INTENTION TO
INTERVENE. 

THE CONTROVERSY AS TO WHETHER OR NOT THE LAND IN QUESTION WAS SUBJECT
TO THE ADMINISTRATION OF THE COURT OF BANKRUPTCY HAD ITS ORIGIN IN THIS
PLEXUS OF FACTS.  PETITIONER JAMES M. WRIGHT ON OCTOBER 1, 1925,
TOGETHER WITH HIS WIFE, EXECUTED A MORTGAGE TO RESPONDENT COMPANY ON A
TRACT OF LAND IN INDIANA, CONTAINING 80.31 ACRES, TO SECURE A NOTE OF
$3,000.  AT THE SAME TIME, THE SAME PARTIES EXECUTED ANOTHER MORTGAGE
TO THE RESPONDENT ON A DIFFERENT TRACT OF LAND CONTAINING 200 ACRES,
ALSO IN INDIANA, TO SECURE A NOTE OF $9,000.  IN 1931, THE FIRST TRACT
WAS DEEDED TO PETITIONER'S SON, AND THREE SEPARATE FORTY-ACRE PARCELS
FROM THE SECOND TRACT WERE DEEDED TO HIS WIFE, DAUGHTER AND SON-IN-LAW
RESPECTIVELY.  THE PROPERTY WAS CONVEYED SUBJECT TO DEFINITE PORTIONS
OF THE INDEBTEDNESS BUT WITHOUT AN ASSUMPTION OF ANY OF THE OBLIGATION
BY THE GRANTEES. 

ON JANUARY 3, 1934, RESPONDENT BROUGHT SUIT TO FORECLOSE THE SMALLER
MORTGAGE, JOINING AS DEFENDANTS PETITIONER AND HIS SON.  JUDGMENT OF
FORECLOSURE WAS ENTERED, JUNE 9, 1934, AND ON JULY 12, 1934, THE 80.31
ACRE TRACT WAS SOLD, ON THE FORECLOSURE SALE, TO RESPONDENT. 
RESPONDENT RECEIVED A DULY EXECUTED SHERIFF'S CERTIFICATE OF SALE. 
DELIVERY OF FINAL DEED WAS DELAYED IN VIEW OF THE ONE-YEAR PERIOD OF
REDEMPTION ALLOWED TO MORTGAGORS BY INDIANA STATUTE.  IND. ANN. STAT.
(BURNS, 1933) SECS. 2-3909, 2-4001. 

WRIGHT FILED A PETITION UNDER SEC. 75 OF THE BANKRUPTCY ACT, OCTOBER
29, 1934.  IN LISTING HIS PROPERTY ON HIS SCHEDULES, HE SET FORTH ALL
280.31 ACRES, DESPITE HIS PREVIOUS CONVEYANCES OF 200.31 ACRES.  ON
DECEMBER 19, 1934, STATING THAT NO AGREEMENT OF CREDITORS COULD BE HAD,
HE AMENDED HIS PETITION UNDER SEC. 75(S), ASKING TO BE ADJUDGED A
BANKRUPT.  FN2  ON APRIL 13, 1935, PETITIONER'S SON AND DAUGHTER AND
THEIR SPOUSES DELIVERED TO HIM A QUITCLAIM DEED FOR ALL THE PROPERTY,
200.31 ACRES, HE HAD PREVIOUSLY DEEDED TO THEM AND HIS WIFE.  FN3 

ON MAY 27, 1935, RESPONDENT OBTAINED A PERSONAL JUDGMENT AGAINST
PETITIONER ON THE $9,000 NOTE, AND A DECREE OF FORECLOSURE OF THE 200
ACRE TRACT, WHICH RESPONDENT PURCHASED AT THE SHERIFF'S SALE ON JULY
20, 1935, RECEIVING A CERTIFICATE OF SALE.  ON AUGUST 2, 1935,
PETITIONER'S ONE-YEAR PERIOD FOR REDEEMING FROM SALE THE 80.31-ACRE
TRACT HAVING EXPIRED JULY 12, 1935, RESPONDENT SURRENDERED ITS
CERTIFICATE OF SALE AND RECEIVED A SHERIFF'S DEED TO THIS LAND. 

ON OCTOBER 11, 1935, PETITIONER AMENDED HIS PETITION AS AUTHORIZED BY
SEC. 75(S) OF THE BANKRUPTCY ACT, AS AMENDED AUGUST 28, 1935, FOLLOWING
THE INVALIDATION BY THE DECISION IN LOUISVILLE BANK V. RADFORD, 295
U.S. 555, OF SEC. 75(S) AS ORIGINALLY DRAFTED, AND AGAIN ASKED TO BE
ADJUDGED A BANKRUPT. 

ON JULY 20, 1936, THE ONE-YEAR REDEMPTION PERIOD HAVING EXPIRED,
RESPONDENT RECEIVED FROM THE SHERIFF A FINAL DEED FOR THE 200-ACRE
TRACT.  ON JULY 29, 1936, RESPONDENT FILED A MOTION IN THE DISTRICT
COURT FOR NORTHERN INDIANA, WHERE THE PROCEEDINGS UNDER SEC. 75(S) WERE
PENDING, TO STRIKE FROM PETITIONER'S SCHEDULES, WHICH HAD BEEN FILED
OCTOBER 29, 1934, THESE 280.31 ACRES OF LAND. 

ON DECEMBER 14, 1936, THE DISTRICT COURT GRANTED THIS MOTION, AND
ENTERED AN APPROPRIATE ORDER.  APPARENTLY THE ORDER STRUCK FROM THE
SCHEDULES EIGHTY ACRES STILL OWNED BY WRIGHT IN OCTOBER, 1934, AND
PROPERLY SCHEDULED AT THAT TIME.  LATER IN DECEMBER, 1936, PETITIONER
ASKED LEAVE TO AMEND HIS SCHEDULES TO SET FORTH THE RECONVEYANCES BY
HIS CHILDREN ON APRIL 13, 1935.  ON DECEMBER 31, 1936, THE DISTRICT
COURT DENIED THE APPLICATION TO AMEND THE SCHEDULES.  PETITIONER
APPEALED FROM BOTH ORDERS OF THE DISTRICT COURT, STRIKING THE LAND FROM
THE SCHEDULES AND DENYING LEAVE TO AMEND.  THE APPEALS WERE
CONSOLIDATED IN THE CIRCUIT COURT OF APPEALS.  AS STATED IN THE OPENING
PARAGRAPH OF THIS OPINION, THAT COURT AFFIRMED BOTH ORDERS OF THE
DISTRICT COURT.  THESE JUDGMENTS ARE UNDER REVIEW HERE. 

A FURTHER ASPECT OF THE CONTROVERSY BETWEEN PETITIONER AND RESPONDENT
MAY BE NOTED.  ON SEPTEMBER 13, 1935, PRIOR TO THE DEBTOR'S FILING OF
AN AMENDED PETITION UNDER SEC. 75(S) AS AMENDED, RESPONDENT INSTITUTED
AN ACTION IN THE STATE COURT FOR POSSESSION OF THE 80.31 ACRES.  A
JUDGMENT OVERRULING A DEFENSE GROUNDED ON THE BANKRUPTCY PROCEEDINGS,
AND AWARDING POSSESSION AND DAMAGES TO RESPONDENT, WAS AFFIRMED BY THE
SUPREME COURT OF INDIANA ON APRIL 2, 1937.  WRIGHT V. UNION CENTRAL
LIFE INS. CO., 212 IND. 214.  A SIMILAR JUDGMENT WITH RESPECT TO THE
REST OF THE LAND WAS AFFIRMED OCTOBER 26, 1937, WRIGHT V. UNION CENTRAL
LIFE INS. CO., 212 IND. 563.  BY TEMPORARY RESTRAINING ORDER OF THE
CIRCUIT COURT OF APPEALS, AND SUBSEQUENT STAY OF MANDATE, RESPONDENT
HAS BEEN RESTRAINED FROM TAKING POSSESSION OF THE LAND. 

FIRST.  (A).  BY OCTOBER 30, 1934, WHEN PETITIONER SOUGHT ADJUSTMENT
AND EXTENSION OF DEBTS UNDER SEC. 75, THE 80.31-ACRE TRACT HAD BEEN
DEEDED AWAY TO PETITIONER'S SON.  ACCORDINGLY, ALTHOUGH THIS TRACT WAS
LISTED ON PETITIONER'S SCHEDULES, IT DID NOT AT THAT TIME PASS INTO THE
HANDS OF THE BANKRUPTCY COURT FOR ADMINISTRATION.  NOR WAS THE AMENDED
PETITION UNDER SEC. 75(S), FILED ON DECEMBER 19, 1934, ANY MORE
EFFECTIVE IN BRINGING THE TRACT WITHIN THE PURVIEW OF THE BANKRUPTCY
COURT.  ON APRIL 13, 1935, THE MEMBERS OF WRIGHT'S FAMILY RELINQUISHED
ALL THEIR RIGHT AND INTEREST IN HIS LANDS, INCLUDING THIS 80.31-ACRE
TRACT, SO THAT PETITIONER THEN ACQUIRED AN INTEREST IN THE LAND.  BUT
WRIGHT'S RECEIPT OF THIS GIFT OF LAND WAS NOT EFFECTIVE IN AND OF
ITSELF TO BRING THE LAND WITHIN THE CONTROL OF THE BANKRUPTCY COURT. 
THIS IS THE RULE APPLICABLE TO PROPERTY RECEIVED BY A BANKRUPT
SUBSEQUENT TO THE FILING OF AN ORDINARY PETITION IN BANKRUPTCY, FN4
AND WE SEE NO REASON WHY THE SAME RULE SHOULD NOT APPLY TO DEBTOR
PROCEEDINGS UNDER SEC. 75.  FN5 

THERE IS NO SUBSTANCE IN ANY CONTENTION THAT THIS 80.31-ACRE TRACT
WAS BROUGHT WITHIN THE PURVIEW OF THE BANKRUPTCY COURT BY THE ACT OF
AUGUST 28, 1935, AMENDING SEC. 75(S), OR THE FILING OF AN AMENDED
PETITION UNDER THIS SECTION ON OCTOBER 11, 1935.  PRIOR THERETO,
JUDGMENT OF FORECLOSURE HAD BEEN ENTERED IN THE STATE COURT AND A
JUDICIAL SALE (AT WHICH RESPONDENT BOUGHT IN THE 80.31-ACRE TRACT) HELD
ON JULY 12, 1934.  CONVEYANCE AND DELIVERY OF POSSESSION TO THE
PURCHASER WAS DEFERRED FOR ONE YEAR, THE PERIOD OF REDEMPTION UNDER THE
STATUTES OF INDIANA.  THIS PERIOD EXPIRED ON JULY 12, 1935, AND THE
SHERIFF'S DEED WAS EXECUTED ON AUGUST 2, 1935.  WITH THE DELIVERY OF
THE DEED, PRIOR TO ANY EFFECTIVE EXTENSION OF THE PERIOD OF REDEMPTION,
THE PURCHASER'S RIGHTS, FLOWING FROM THE JUDICIAL SALE, WERE NO LONGER
AFFECTED BY THE COURT'S JURISDICTION OF PETITIONER AND PETITIONER'S
ESTATE UNDER THE BANKRUPTCY ACT.  FN6  NOTHING IN SEC. 75 AS IT NOW
STANDS INDICATES ANY INTENTION THAT THE BANKRUPTCY COURTS ASSUME
CONTROL OVER LAND NOT PREVIOUSLY WITHIN THE JURISDICTION OF A
BANKRUPTCY COURT, AND ALREADY COMPLETELY DIVORCED FROM ANY TITLE OF THE
DEBTOR. 

(B).  ON OCTOBER 29, 1934, WHEN WRIGHT FILED HIS ORIGINAL PETITION
UNDER SEC. 75, HE WAS UNDOUBTEDLY THE OWNER OF 80 ACRES OUT OF THE 200
ACRE TRACT.  HE HAD NEVER CONVEYED AWAY THESE 80 ACRES; NO PROCEEDINGS
TO FORECLOSE THEM HAD BEEN BEGUN.  THESE 80 ACRES WERE CLEARLY WITHIN
THE JURISDICTION OF THE BANKRUPTCY COURT, BUT WE SHALL NOT GIVE THEM
SEPARATE DISCUSSION, FOR THEY ARE CONTROLLED A FORTIORI BY OUR RULING
WITH RESPECT TO THE OTHER 120 ACRES OUT OF THE 200-ACRE TRACT. 

(C).  THE STATUS OF THESE 120 ACRES, DEEDED IN FORTY-ACRE PARCELS, TO
THREE MEMBERS OF THE FAMILY, IS GOVERNED BY OTHER FACTS.  THESE PARCELS
PASSED TO THE OTHER MEMBERS OF THE FAMILY PRIOR TO THE FILING OF THE
PETITION FOR COMPOSITION ON OCTOBER 29, 1934.  PETITIONER, HOWEVER,
INCLUDED THEM IN HIS SCHEDULES.  THE GRANTEES HAD TITLE ON DECEMBER 19,
1934, WHEN PETITIONER FILED HIS FIRST AMENDMENT TO THE PETITION FOR
COMPOSITION.  ON APRIL 13, 1935, THESE PARCELS WERE RECONVEYED TO
PETITIONER; ON MAY 27 JUDGMENT FOR FORECLOSURE WAS ENTERED AND ON JULY
20, 1935, A SALE WAS HAD.  RESPONDENT BECAME THE PURCHASER.  THE RIGHT
OF REDEMPTION EXPIRED JULY 20, 1936.  BETWEEN THE SALE AND THE
EXPIRATION OF THE PERIOD OF REDEMPTION, TWO EVENTS OCCURRED.  THE
CONGRESS ENACTED THE ACT OF AUGUST 28, 1935, WHICH ADDED TO THE
BANKRUPTCY ACT, SEC. 75, A NEW SUBSECTION (S) TO TAKE THE PLACE OF THE
SUBSECTION (S) HELD INVALID IN LOUISVILLE BANK V. RADFORD, 295 U.S.
555.  THIS NEW SUBSECTION (S) WAS SUSTAINED IN WRIGHT V. VINTON BRANCH,
300 U.S. 440.  SECONDLY, THE PETITIONER, ON OCTOBER 11, 1935, FILED A
SECOND AMENDMENT TO HIS PETITION FOR COMPOSITION AND WAS "DULY ADJUDGED
A BANKRUPT."  BOTH OF THESE EVENTS ARE SIGNIFICANT IN REASONING OUT THE
STATUS OF THE 120 ACRES. 

IF THE RULE OF THE GENERAL BANKRUPTCY ACT IS FOLLOWED, PROPERTY
ACQUIRED AFTER THE FILING OF A PETITION FOR COMPOSITION UNDER THE
PROVISIONS OF SEC. 75 WOULD NOT BE SUBJECT TO BANKRUPTCY
ADMINISTRATION.  SECTION 75(N) IN EFFECT AT THE TIME OF THE FILING OF
THE PETITION LEADS TO THE CONCLUSION THAT, AT THAT TIME, A SIMILAR
RULE, AS TO PROPERTY SUBSEQUENTLY ACQUIRED, WOULD APPLY.  FN7  AT THE
TIME PETITIONER FILED HIS FIRST AMENDMENT, SEEKING TO BE ADJUDGED A
BANKRUPT, SUBSECTION (N) CONTINUED IN THE SAME FORM.  IT WAS CHANGED BY
THE ACT OF AUGUST 28, 1935, TO THE LANGUAGE SHOWN BELOW.  FN8  BY THE
TERMS OF THE SECOND AND THIRD PARAGRAPHS OF SEC. 4 OF THAT ACT, ALL
RIGHTS OF REDEMPTION OF PETITIONER WHICH HAD NOT EXPIRED IN LAND WITHIN
THE JURISDICTION OF THE COURT OF BANKRUPTCY WERE EXTENDED.  BY THE
EARLIER SUBSECTION (N) THE LINE OF CLEAVAGE, BETWEEN PROPERTY SUBJECT
TO THE BANKRUPTCY JURISDICTION AND PROPERTY FREE FROM IT, CAME AT THE
DATE WHEN THE "FARMER'S PETITION OR ANSWER WAS FILED."  WHEN THIS
LANGUAGE WAS ADOPTED THERE WAS NO PROVISION FOR A PETITION IN
BANKRUPTCY UNDER SEC. 75.  THERE WAS PROVISION ONLY FOR A PETITION FOR
COMPOSITION OR EXTENSION.  FN9  BY SEC. 4 OF THE ACT OF AUGUST 28,
1935, SUBSECTION (N) WAS CHANGED TO COMPORT WITH SUBSECTION 75(S),
PERMITTING A PETITIONER TO AMEND AND ASK "TO BE ADJUDGED A BANKRUPT." 
WE ARE OF THE OPINION THAT IT IS THE DATE OF FILING THIS REQUEST FOR
ADJUDICATION AS BANKRUPT WHICH FIXES "THE LINE OF CLEAVAGE" AS TO THE
PROPERTY.  THIS CONCLUSION IS REALLY IN CONFORMITY WITH THE REASONING
GOVERNING THE RULE IN THE GENERAL BANKRUPTCY ACT.  THERE THE FIRST
PETITION SEEKS AN ADJUDICATION IN BANKRUPTCY.  UNDER SEC. 75, IT IS
ONLY THE LATER AMENDMENT WHICH DOES.  FN10  AS THE 120 ACRES HAD BEEN
RECONVEYED TO THE PETITIONER PRIOR TO HIS FILING OF THE PETITION OF
OCTOBER 11, 1935, SEEKING ADJUDICATION AS A BANKRUPT, HIS INTEREST IN
THE 120 ACRES WAS SUBJECT TO BANKRUPTCY JURISDICTION.  AS THE LAND WAS
RECONVEYED TO THE PETITIONER PRIOR TO THE DECREE OF FORECLOSURE,
PETITIONER WAS AN OWNER ENTITLED TO REDEEM AFTER THE SALE.  IND. STAT.
ANN. (BURNS, 1933) C. 40.  THE AMENDMENT OF OCTOBER 11, 1935, WAS THE
FIRST OPPORTUNITY TO BRING THE 120 ACRES INTO THE JURISDICTION OF THE
BANKRUPTCY COURT, AND WE THINK IT HAD THAT EFFECT.    SECOND.  THE
CONCLUSION THAT ALL THE LANDS IN CONTROVERSY, EXCEPT THE 80.31-ACRE
TRACT, ARE WITHIN THE JURISDICTION OF THE BANKRUPTCY COURT UNDER THE
PETITIONER'S AMENDMENT ASKING TO BE ADJUDGED A BANKRUPT AND ARE LANDS
SUBJECT TO PETITIONER'S RIGHT OF REDEMPTION, AS EXTENDED BY SUBSECTION
(N) OF SEC. 75, REQUIRES THE REVERSAL OF THE JUDGMENTS BELOW, AS TO
THESE LANDS, UNLESS THE PROVISIONS OF SEC. 75(N), EXTENDING THE PERIOD
OF REDEMPTION, ARE UNCONSTITUTIONAL.  RESPONDENT INSISTS THAT THESE
PROVISIONS ARE A DIRECT INVASION OF THE STATE'S RIGHTS UNDER THE TENTH
AMENDMENT AND VIOLATIVE OF THE RESPONDENT'S OWN RIGHTS, BY VIRTUE OF
ITS TITLE ACQUIRED BY PURCHASE AT THE JUDICIAL SALE, IN CONTRAVENTION
OF THE FIFTH AMENDMENT.    THE RIGHT OF THE CONGRESS TO LEGISLATE ON
THE SUBJECT OF BANKRUPTCIES IS GRANTED BY THE CONSTITUTION IN GENERAL
TERMS.  "THE CONGRESS SHALL HAVE POWER  ...  TO ESTABLISH  ...  UNIFORM
LAWS ON THE SUBJECT OF BANKRUPTCIES THROUGHOUT THE UNITED STATES,"
ARTICLE I, SEC. 8, CLAUSE 4.  TO THIS SPECIFIC GRANT, THERE MUST BE
ADDED THE POWERS OF THE GENERAL GRANT OF CLAUSE EIGHTEEN.  "TO MAKE ALL
LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION
THE FOREGOING POWERS  ...  "  THE SUBJECT OF BANKRUPTCIES IS INCAPABLE
OF FINAL DEFINITION.  THE CONCEPT CHANGES.  IT HAS BEEN RECOGNIZED THAT
IT IS NOT LIMITED TO THE CONNOTATION OF THE PHRASE IN ENGLAND OR THE
STATES, AT THE TIME OF THE FORMULATION OF THE CONSTITUTION.  FN11  AN
ADJUDICATION IN BANKRUPTCY IS NOT ESSENTIAL TO THE JURISDICTION.  THE
SUBJECT OF BANKRUPTCIES IS NOTHING LESS THAN "THE SUBJECT OF THE
RELATIONS BETWEEN AN INSOLVENT OR NONPAYING OR FRAUDULENT DEBTOR AND
HIS CREDITORS, EXTENDING TO HIS AND THEIR RELIEF."  FN12  THIS
DEFINITION OF JUDGE BLATCHFORD, AFTERWARDS A MEMBER OF THIS COURT, HAS
BEEN CITED WITH APPROVAL HERE.  FN13 

THE DEVELOPMENT OF BANKRUPTCY LEGISLATION HAS BEEN TOWARDS RELIEVING
THE HONEST DEBTOR FROM OPPRESSIVE INDEBTEDNESS AND PERMITTING HIM TO
START AFRESH.  FN14  BY THE ACT OF MARCH 3, 1933, THE CONGRESS
DELIBERATELY UNDERTOOK THE REHABILITATION OF THE DEBTOR AS WELL AS HIS
DISCHARGE FROM INDEBTEDNESS.  FN15  THIS LEGISLATION FOR REHABILITATION
HAS BEEN UPHELD AS WITHIN THE SUBJECT OF BANKRUPTCIES.  FN16  BUT
RESPONDENT URGES THAT UNDER THE BANKRUPTCY CLAUSE CONGRESS IS CONFINED
TO LEGISLATION FOR THE ADJUSTMENT OF THE DEBTOR-CREDITOR RELATIONSHIP,
AND INSISTS THAT THE PURCHASER AT AN INDIANA JUDICIAL SALE IS NOT A
CREDITOR BUT A GRANTEE WITH RIGHTS ACQUIRED BY THE PURCHASE, SEPARATE
AND DISTINCT FROM THE RIGHTS AND OBLIGATIONS ARISING FROM THE CREATION
OF THE DEBT.  WHILE THERE MAY BE NO RELATION OF DEBTOR AND CREDITOR
BETWEEN THE BANKRUPT AND THE PURCHASER OF HIS PROPERTY AT JUDICIAL
SALE, WE THINK THE PURCHASER AT A JUDICIAL SALE DOES ENTER INTO THE
RADIUS OF THE BANKRUPTCY POWER OVER DEBTS.  HIS PURCHASE IS IN THE
LIQUIDATION OF THE INDEBTEDNESS.  THE DEBTOR HAS A RIGHT OF REDEMPTION
OF WHICH THE PURCHASER IS ADVISED, AND UNTIL THAT RIGHT OF REDEMPTION
EXPIRES THE RIGHTS OF THE PURCHASER ARE SUBJECT TO THE POWER OF THE
CONGRESS OVER THE RELATIONSHIP OF DEBTOR AND CREDITOR AND ITS POWER TO
LEGISLATE FOR THE REHABILITATION OF THE DEBTOR.  THE PERSON WHOSE LAND
HAS BEEN SOLD AT FORECLOSURE SALE AND NOW HOLDS A RIGHT OF REDEMPTION
IS, FOR ALL PRACTICAL PURPOSES, IN THE SAME DEBT SITUATION AS AN
ORDINARY MORTGAGOR IN DEFAULT:  BOTH ARE FACED WITH THE SAME ULTIMATE
PROSPECT, EITHER OF PAYING A CERTAIN SUM OF MONEY, OR OF BEING
COMPLETELY DIVESTED OF THEIR LAND.  WE THINK THE PROVISION FOR THE
EXTENSION OF THE PERIOD OF REDEMPTION COMES CLEARLY WITHIN THE POWER OF
THE CONGRESS UNDER THE BANKRUPTCY CLAUSE.  BUT RESPONDENT PRESSES A
FURTHER ARGUMENT THAT THE FIFTH AND TENTH AMENDMENTS ARE VIOLATED. 

(A)  THE FIFTH AMENDMENT IS SAID TO BE VIOLATED AND THE PROPERTY OF
RESPONDENT, THE PURCHASER AT THE JUDICIAL SALE, TAKEN WITHOUT DUE
PROCESS,  FN17  BY THE PROVISION FOR EXTENSION OF THE TIME OF
REDEMPTION.  SECTION 75(N) PROVIDES THAT "THE PERIOD OF REDEMPTION
SHALL BE EXTENDED  ...  FOR THE PERIOD NECESSARY FOR THE PURPOSE OF
CARRYING OUT THE PROVISIONS OF THIS SECTION."  THE STAY MAY BE APPROVED
FOR THE PERIOD DURING WHICH THE DEBTOR SEEKS TO EFFECT A COMPOSITION,
FN18  AND, AS CONTEMPLATED BY SEC. 75(S), FOR A MORATORIUM PERIOD NOT
EXCEEDING THREE YEARS, DURING WHICH THE COURT'S EQUITABLE SUPERVISION
OVER THE LAND CONTINUES, AND A REASONABLE RENTAL IS REQUIRED.  FN19
THAT SUCH AN EXTENSION IS CONSONANT WITH THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT IS INDICATED BY OUR DECISION IN HOME BLDG. & LOAN ASSN.
V. BLAISDELL, 290 U.S. 398, WHERE WE HELD THAT NEITHER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT NOR THE CONTRACTS CLAUSE WAS
VIOLATED BY AN EMERGENCY STATE STATUTE AUTHORIZING EXTENSION OF THE
PERIOD OF REDEMPTION FROM FORECLOSURE SALES, FOR A JUST AND EQUITABLE
PERIOD NOT EXCEEDING TWO YEARS, CONDITIONED ON PAYMENT BY THE MORTGAGOR
OF A REASONABLE RENTAL, AS DIRECTED BY THE COURT. 

THE MORTGAGE CONTRACT WAS MADE SUBJECT TO CONSTITUTIONAL POWER IN THE
CONGRESS TO LEGISLATE ON THE SUBJECT OF BANKRUPTCIES.  IMPLIEDLY, THIS
WAS WRITTEN INTO THE CONTRACT BETWEEN PETITIONER AND RESPONDENT.  "NOT
ONLY ARE EXISTING LAWS READ INTO CONTRACTS IN ORDER TO FIX OBLIGATIONS
AS BETWEEN PARTIES, BUT THE RESERVATION OF ESSENTIAL ATTRIBUTES OF
SOVEREIGN POWER IS ALSO READ INTO CONTRACTS AS A POSTULATE OF THE LEGAL
ORDER."  FN20  AND THE FACT THAT IN THIS CASE THE PURCHASER AT THE
FORECLOSURE SALE WAS ALSO THE MORTGAGEE IS NOT A DETERMINING FACTOR. 
ANY PURCHASER AT A JUDICIAL SALE MUST PURCHASE SUBJECT TO THE
POSSIBILITY OF THE EXERCISE OF THE BANKRUPTCY POWER IN A MANNER
CONSONANT WITH THE FIFTH AMENDMENT. 

WE HAVE HELD THAT SEC. 75(S) DOES NOT UNCONSTITUTIONALLY AFFECT THE
RIGHTS OF THE MORTGAGEE.  FN21  WE DO NOT THINK THE PROVISION FOR
EXTENSION OF THE PERIOD OF REDEMPTION IN SEC. 75(N) IS INVALID.  THE
RIGHTS OF THE PURCHASER ARE PRESERVED, THE POSSIBILITY OF ENJOYMENT IS
MERELY DELAYED.  THE RIGHTS OF A PURCHASER, WHO UNDER THE STATE LAW IS
ENTITLED TO THE REDEMPTION MONEY OR POSSESSION WITHIN A YEAR, ARE NOT
SUBSTANTIALLY DIFFERENT FROM THOSE OF A MORTGAGEE ENTITLED, ON THE
MATURITY OF THE OBLIGATION, TO PAYMENT OR SALE OF THE PROPERTY. 

(B)  IN VIEW OF OUR DECISION THAT THE LAW IS WITHIN THE BANKRUPTCY
POWER, SCANT RELIANCE CAN BE PLACED ON THE TENTH AMENDMENT.  RESPONDENT
ARGUES THAT TO SUBJECT PROPERTY BOUGHT IN AT A FORECLOSURE SALE TO THE
EXTENDED REDEMPTION PERIOD AND OTHER PROVISIONS OF SEC. 75(S) "WOULD BE
A DIRECT INVASION OF THE POWERS RESERVED TO THE STATE BY THE
CONSTITUTION, AND A VIOLATION OF (RESPONDENT'S) PROPERTY RIGHTS
THERETOFORE DETERMINED BY THE COURTS OF THE STATE OF INDIANA IN
ACCORDANCE WITH THE LAW OF THAT STATE." 

IF THE ARGUMENT IS THAT CONGRESS HAS NO POWER TO ALTER PROPERTY
RIGHTS, BECAUSE THE REGULATION OF RIGHTS IN PROPERTY IS A MATTER
RESERVED TO THE STATES, IT IS FUTILE.  BANKRUPTCY PROCEEDINGS
CONSTANTLY MODIFY AND AFFECT THE PROPERTY RIGHTS ESTABLISHED BY STATE
LAW.  A FAMILIAR INSTANCE IS THE INVALIDATION OF TRANSFERS WORKING A
PREFERENCE, THOUGH VALID UNDER STATE LAW WHEN MADE.  RECENT DECISIONS
ILLUSTRATE OTHER INSTANCES: 

"A COURT OF BANKRUPTCY MAY AFFECT THE INTERESTS OF LIEN HOLDERS IN
MANY WAYS.  TO CARRY OUT THE PURPOSES OF THE BANKRUPTCY ACT, IT MAY
DIRECT THAT ALL LIENS UPON PROPERTY FORMING A PART OF THE BANKRUPT'S
ESTATE BE MARSHALLED; OR THAT THE PROPERTY BE SOLD FREE OF ENCUMBRANCES
AND THE RIGHTS OF ALL LIEN HOLDERS BE TRANSFERRED TO THE PROCEEDS OF
THE SALE.  VAN HUFFEL V. HARKELRODE, 284 U.S. 225, 227.  DESPITE THE
PEREMPTORY TERMS OF A PLEDGE, IT MAY ENJOIN SALE OF THE COLLATERAL, IF
IT FINDS THAT THE SALE WOULD HINDER OR DELAY PREPARATION OR
CONSUMMATION OF A PLAN OF REORGANIZATION.  CONTINENTAL ILLINOIS NAT.
BANK & TRUST CO. V. CHICAGO, R.I. & P. RY. CO., 294 U.S. 648, 680-681. 
IT MAY ENJOIN LIKE ACTION BY A MORTGAGEE WHICH WOULD DEFEAT THE PURPOSE
OF (SEC. 75) SUBSECTION (S) TO EFFECT REHABILITATION OF THE FARMER
MORTGAGOR."  WRIGHT V. VINTON BRANCH, 300 U.S. AT 470.  FN22 

SUCH ACTION DOES NOT INDICATE A DISREGARD OF THE PROPERTY RIGHTS
CREATED BY STATE LAW.  THE STATE LAW STILL ESTABLISHES THE NORM TO
WHICH CONGRESS MUST SUBSTANTIALLY ADHERE; A SERIOUS DEPARTURE FROM THIS
NORM, I.E., FROM THE QUALITY OF THE PROPERTY RIGHTS CREATED BY THE
STATE LAW, HAS LED TO CONDEMNATION OF THE FEDERAL ACTION AS
CONSTITUTING A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS.  FN23 

PROPERTY RIGHTS DO NOT GAIN ANY ABSOLUTE INVIOLABILITY IN THE
BANKRUPTCY COURT BECAUSE CREATED AND PROTECTED BY STATE LAW.  MOST
PROPERTY RIGHTS ARE SO CREATED AND PROTECTED.  BUT IF CONGRESS IS
ACTING WITHIN ITS BANKRUPTCY POWER, IT MAY AUTHORIZE THE BANKRUPTCY
COURT TO AFFECT THESE PROPERTY RIGHTS, PROVIDED THE LIMITATIONS OF THE
DUE PROCESS CLAUSE ARE OBSERVED. 

IN SO FAR AS THE JUDGMENTS BELOW STRUCK FROM THE SCHEDULES THE 80.31
ACRE TRACT AND REFUSED TO PERMIT AMENDMENT TO SHOW THE CHARACTER OF
APPELLANT'S INTEREST, THEY ARE AFFIRMED.  AS TO THE REST OF THE LAND IN
QUESTION, THEY ARE REVERSED.  AFFIRMED IN PART; REVERSED IN PART. 

FN1  "WHENEVER THE CONSTITUTIONALITY OF ANY ACT OF CONGRESS AFFECTING
THE PUBLIC INTEREST IS DRAWN IN QUESTION IN ANY COURT OF THE UNITED
STATES IN ANY SUIT OR PROCEEDING TO WHICH THE UNITED STATES, OR ANY
AGENCY THEREOF, OR ANY OFFICER OR EMPLOYEE THEREOF, AS SUCH OFFICER OR
EMPLOYEE, IS NOT A PARTY, THE COURT HAVING JURISDICTION OF THE SUIT OR
PROCEEDING SHALL CERTIFY SUCH FACT TO THE ATTORNEY GENERAL.  IN ANY
SUCH CASE THE COURT SHALL PERMIT THE UNITED STATES TO INTERVENE AND
BECOME A PARTY FOR PRESENTATION OF EVIDENCE (IF EVIDENCE IS OTHERWISE
RECEIVABLE IN SUCH SUIT OR PROCEEDING) AND ARGUMENT UPON THE QUESTION
OF THE CONSTITUTIONALITY OF SUCH ACT.  IN ANY SUCH SUIT OR PROCEEDING
THE UNITED STATES SHALL, SUBJECT TO THE APPLICABLE PROVISIONS OF LAW,
HAVE ALL THE RIGHTS OF A PARTY AND THE LIABILITIES OF A PARTY AS TO
COURT COSTS TO THE EXTENT NECESSARY FOR A PROPER PRESENTATION OF THE
FACTS AND LAW RELATING TO THE CONSTITUTIONALITY OF SUCH ACT. 

FN2  THIS FACT IS STATED IN RESPONDENT'S BRIEF.  PETITIONER'S ANSWER
TO RESPONDENT'S MOTION TO STRIKE OUT FROM THE SCHEDULES THE REAL ESTATE
IN CONTROVERSY ALLEGES "THAT ALL THE STEPS UNDER SAID SECTION 75 WERE
TAKEN; THAT LATER PETITIONER (WRIGHT) AMENDED HIS PETITION UNDER
SUBSECTION (S) OF SECTION 75, AS AMENDED AUGUST 28, 1935."  BY
STIPULATION THE ALLEGATIONS OF THE ANSWER WERE ADMITTED AS EVIDENCE. 
THERE IS APPARENTLY NO ISSUE AS TO THE FACT OF THE FILING OF A PETITION
IN BANKRUPTCY ON DECEMBER 19, 1934. 

FN3  APPARENTLY HIS WIFE HAD DIED IN THE MEANWHILE.  THE RECORD
INDICATES THAT SHE DIED PRIOR TO MAY 27, 1935. 

FN4  EVERETT V. JUDSON, 228 U.S. 474, 478; LOCAL LOAN CO. V. HUNT,
292 U.S. 234, 244; 4 REMINGTON, BANKRUPTCY, SECS. 1377, 1395, 1400; 1
COLLIER, BANKRUPTCY, P. 1641. 

FN5  IN CONSIDERING THIS 80.31-ACRE TRACT WE ARE NOT CONCERNED WITH
SUCH PROPERTY ACQUIRED SUBSEQUENT TO THE FILING UNDER SEC. 75 AS WOULD
BE CONTROLLED BY SEC. 75(N) AS AMENDED BY THE ACT OF AUGUST 28, 1935. 
"IN PROCEEDINGS UNDER THIS SECTION, EXCEPT AS OTHERWISE PROVIDED
HEREIN, THE JURISDICTION AND POWERS OF THE COURTS, THE TITLE, POWERS,
AND DUTIES OF ITS OFFICERS, THE DUTIES OF THE FARMER, AND THE RIGHTS
AND LIABILITIES OF CREDITORS, AND OF ALL PERSONS WITH RESPECT TO THE
PROPERTY OF THE FARMER AND THE JURISDICTION OF THE APPELLATE COURTS,
SHALL BE THE SAME AS IF A VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN
FILED AND A DECREE OF ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE
FARMER'S PETITION, ASKING TO BE ADJUDGED A BANKRUPT, WAS FILED WITH THE
CLERK OF COURT OR LEFT WITH THE CONCILIATION COMMISSIONER FOR THE
PURPOSE OF FORWARDING SAME TO THE CLERK OF COURT." 

FN6  "A SHERIFF'S CERTIFICATE, HOWEVER, AFTER THE EXPIRATION OF THE
YEAR FOR REDEMPTION, INVESTS THE HOLDER WITH AN EQUITABLE ESTATE IN THE
LAND, OF SUCH HIGH CHARACTER THAT IT ONLY REQUIRES HIS DEMAND FOR A
DEED, TO RIPEN IT INTO AN ABSOLUTE LEGAL TITLE."  HUBBLE V. BERRY, 180
IND. 513, 519. 

FN7  "(N)  THE FILING OF A PETITION PLEADING FOR RELIEF UNDER THIS
THE EXCLUSIVE JURISDICTION OF THE COURT.  IN PROCEEDINGS UNDER THIS
POWERS OF THE COURT, THE TITLE, POWERS, AND DUTIES OF ITS OFFICERS, THE
DUTIES OF THE FARMER, AND THE RIGHTS AND LIABILITIES OF CREDITORS, AND
OF ALL PERSONS WITH RESPECT TO THE PROPERTY OF THE FARMER AND THE
JURISDICTION OF THE APPELLATE COURTS, SHALL BE THE SAME AS IF A
VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN FILED AND A DECREE OF
ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE FARMER'S PETITION OR
ANSWER WAS FILED." 

FN8  "(N)  THE FILING OF A PETITION OR ANSWER WITH THE CLERK OF
COURT, OR LEAVING IT WITH THE CONCILIATION COMMISSIONER FOR THE PURPOSE
OF FORWARDING SAME TO THE CLERK OF COURT, PRAYING FOR RELIEF UNDER
FARMER AND ALL HIS PROPERTY, WHEREVER LOCATED, FOR ALL THE PURPOSES OF
THIS SECTION, TO THE EXCLUSIVE JURISDICTION OF THE COURT, INCLUDING ALL
REAL OR PERSONAL PROPERTY, OR ANY EQUITY OR RIGHT IN ANY SUCH PROPERTY,
INCLUDING, AMONG OTHERS, CONTRACTS FOR PURCHASE, CONTRACTS FOR DEED, OR
CONDITIONAL SALES CONTRACTS, THE RIGHT OR THE EQUITY OF REDEMPTION
WHERE THE PERIOD OF REDEMPTION HAS NOT OR HAD NOT EXPIRED, OR WHERE A
DEED OF TRUST HAS BEEN GIVEN AS SECURITY, OR WHERE THE SALE HAS NOT OR
HAD NOT BEEN CONFIRMED, OR WHERE DEED HAD NOT BEEN DELIVERED, AT THE
TIME OF FILING THE PETITION. 

"IN ALL CASES WHERE, AT THE TIME OF FILING THE PETITION, THE PERIOD
OF REDEMPTION HAS NOT OR HAD NOT EXPIRED, OR WHERE THE RIGHT UNDER A
DEED OF TRUST HAS NOT OR HAD NOT BECOME ABSOLUTE, OR WHERE THE SALE HAS
NOT OR HAD NOT BEEN CONFIRMED, OR WHERE DEED HAD NOT BEEN DELIVERED,
THE PERIOD OF REDEMPTION SHALL BE EXTENDED OR THE CONFIRMATION OF SALE
WITHHELD FOR THE PERIOD NECESSARY FOR THE PURPOSE OF CARRYING OUT THE
PROVISIONS OF THIS SECTION.  THE WORDS 'PERIOD OF REDEMPTION' WHEREVER
THEY OCCUR IN THIS SECTION SHALL INCLUDE ANY STATE MORATORIUM, WHETHER
ESTABLISHED BY LEGISLATIVE ENACTMENT OR EXECUTIVE PROCLAMATION, OR
WHERE THE PERIOD OF REDEMPTION HAS BEEN EXTENDED BY A JUDICIAL DECREE. 
IN PROCEEDINGS UNDER THIS SECTION, EXCEPT AS OTHERWISE PROVIDED HEREIN,
THE JURISDICTION AND POWERS OF THE COURTS, THE TITLE, POWERS, AND
DUTIES OF ITS OFFICERS, THE DUTIES OF THE FARMER, AND THE RIGHTS AND
LIABILITIES OF CREDITORS, AND OF ALL PERSONS WITH RESPECT TO THE
PROPERTY OF THE FARMER AND THE JURISDICTION OF THE APPELLATE COURTS,
SHALL BE THE SAME AS IF A VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN
FILED AND A DECREE OF ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE
FARMER'S PETITION, ASKING TO BE ADJUDGED A BANKRUPT, WAS FILED WITH THE
CLERK OF COURT OR LEFT WITH THE CONCILIATION COMMISSIONER FOR THE
PURPOSE OF FORWARDING SAME TO THE CLERK OF COURT." 

FN9  ACT OF MARCH 3, 1933, SEC. 75(C): 

"(C)  AT ANY TIME WITHIN FIVE YEARS AFTER THIS SECTION TAKES EFFECT,
A PETITION MAY BE FILED BY ANY FARMER, STATING THAT THE FARMER IS
INSOLVENT OR UNABLE TO MEET HIS DEBTS AS THEY MATURE, AND THAT IT IS
DESIRABLE TO EFFECT A COMPOSITION OR AN EXTENSION OF TIME TO PAY HIS
DEBTS.  THE PETITION OR ANSWER OF THE FARMER SHALL BE ACCOMPANIED BY
HIS SCHEDULES.  THE PETITION AND ANSWER SHALL BE FILED WITH THE COURT,
BUT SHALL, ON REQUEST OF THE FARMER OR CREDITOR, BE RECEIVED BY THE
CONCILIATION COMMISSIONER FOR THE COUNTY IN WHICH THE FARMER RESIDES
AND PROMPTLY TRANSMITTED BY HIM TO THE CLERK OF THE COURT FOR FILING. 
IF ANY SUCH PETITION IS FILED, AN ORDER OF ADJUDICATION SHALL NOT BE
ENTERED EXCEPT AS PROVIDED HEREINAFTER IN THIS SECTION." 

FN10  SECTION 75 AS ORIGINALLY ENACTED WAS A PART OF CHAPTER VIII OF
THE BANKRUPTCY ACT, APPROVED MARCH 3, 1933, AND DID NOT CONTEMPLATE AN
ADJUDICATION IN BANKRUPTCY.  SECTION 73 OF THAT CHAPTER READS AS
FOLLOWS: 

"SEC. 73.  ADDITIONAL JURISDICTION.  - IN ADDITION TO THE
JURISDICTION EXERCISED IN VOLUNTARY AND INVOLUNTARY PROCEEDINGS TO
ADJUDGE PERSONS BANKRUPT, COURTS OF BANKRUPTCY SHALL EXERCISE ORIGINAL
JURISDICTION IN PROCEEDINGS FOR THE RELIEF OF DEBTORS, AS PROVIDED IN

THE AMENDMENTS OF BANKRUPTCY RULES, ORDER OF JUNE 1, 1936, 298 U.S.
695, ARE BASED UPON PETITIONS FOR COMPOSITION RATHER THAN BANKRUPTCY. 
SEE PARTICULARLY GENERAL ORDER L, P. 701. 

FN11  ADAIR V. BANK OF AMERICA ASSN., 303 U.S. 350, 354; CONTINENTAL
BANK V. CHICAGO, R.I. & P. RY. CO., 294 U.S. 648, 668. 

FN12  IN RE REIMAN, 20 FED. CAS. 490. 

FN13  CONTINENTAL BANK V. CHICAGO, R.I. & P. RY. CO., SUPRA, 672;
UNITED STATES V. BEKINS, ANTE, PP. 27, 47; HANOVER NATIONAL BANK V.
MOYSES, 186 U.S. 181, 187. 

FN14  WILLIAMS V. U.S. FIDELITY & G. CO., 236 U.S. 549, 554, 555;
LOUISVILLE BANK V. RADFORD, 295 U.S. 555, 582. 

FN15  ADAIR V. BANK OF AMERICA ASSN., SUPRA, PP. 354, 355, NOTES 2
AND 3. 

FN16  WRIGHT V. VINTON BRANCH, 300 U.S. 440, 456. 

FN17 COMPARE LOUISVILLE BANK V. RADFORD, 295 U.S. 555, 601. 

FN18  CF. ADAIR V. BANK OF AMERICA ASSN., 303 U.S. 350. 

FN19  SEE WRIGHT V. VINTON BRANCH, 300 U.S. 440, 460 ET SEQ. 

FN20  HOME BLDG. & LOAN ASSN. V. BLAISDELL, SUPRA, AT PAGE 435. 

FN21  WRIGHT V. VINTON BRANCH, SUPRA. 

FN22  SEE ALSO ADAIR V. BANK OF AMERICA ASSN., SUPRA, RESTRICTING THE
ENFORCEMENT OF A MORTGAGE UPON THE GROSS PROCEEDS OF A CROP. 

FN23  LOUISVILLE BANK V. RADFORD, 295 U.S. 555. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






COLLINS V. YOSEMITE PARK CO., 304 U.S. 518 


NO. 870.  ARGUED APRIL 27, 28, 1938.  - DECIDED MAY 31, 1938.  - 20
F.SUPP.  1009, REVERSED. 


1.  THE UNITED STATES, OWNING LAND SET ASIDE AS A NATIONAL PARK WITHIN
THE BOUNDARIES OF A STATE, MAY CONSTITUTIONALLY ACCEPT FROM THE STATE A
CESSION OF JURISDICTION OVER IT.  THE JURISDICTION CEDED NEED NOT BE
EXCLUSIVE BUT MAY BE LIMITED BY RESERVATIONS OF POWERS IN THE STATE,
SUCH AS THE POWER TO TAX PERSONS AND THEIR PROPERTY ON THE LAND
INCLUDED.  PP. 527, 530. 

IT IS NOT ESSENTIAL TO VALID ACQUISITION OF JURISDICTION BY CESSION
FROM A STATE THAT THE LAND INVOLVED SHALL BE ACQUIRED BY THE UNITED
STATES FOR ONE OF THE PURPOSES SPECIFIED IN CLAUSE 17, SEC. 8, ART. I,
OF THE CONSTITUTION.  P. 528. 

2.  THE TERRITORY EMBRACED IN THE YOSEMITE NATIONAL PARK IN
CALIFORNIA WAS ACQUIRED BY THE UNITED STATES UNDER THE TREATY OF
GUADALUPE HIDALGO.  PART OF IT, KNOWN AS YOSEMITE VALLEY, WAS GRANTED
TO THE STATE, IN 1864, FOR PARK AND RECREATIONAL PURPOSES, AND WAS
REGRANTED TO THE UNITED STATES BY ACT OF THE STATE LEGISLATURE IN 1905,
AT A TIME WHEN ANOTHER STATUTE (CAL. STAT. 1891, C. 181) PURPORTED TO
CEDE TO THE UNITED STATES, OVER LAND GRANTED TO IT, JURISDICTION FOR
ALL PURPOSES EXCEPT THE ADMINISTRATION OF THE CRIMINAL LAWS OF THE
STATE AND THE SERVICE OF CIVIL PROCESS.  THE OTHER LANDS COMPOSING THE
PARK HAVE REMAINED IN THE PROPRIETORSHIP OF THE UNITED STATES SINCE THE
TIME OF THE TREATY.  BY ACT OF APRIL 15, 1919, CALIFORNIA GRANTED
EXCLUSIVE JURISDICTION OVER THE PARK AS A WHOLE, SAVING CERTAIN RIGHTS,
INCLUDING THE RIGHT "TO TAX PERSONS AND CORPORATIONS, THEIR FRANCHISES
AND PROPERTY" ON THE LANDS INCLUDED; AND THIS WAS ACCEPTED BY THE ACT
OF CONGRESS OF JUNE 2, 1920.  HELD: 

(1)  THAT WHATEVER THE STATUS OF JURISDICTION EXISTING AT THE TIME OF
THEIR ENACTMENT, THESE ACTS OF CESSION AND ACCEPTANCE, OF 1919 AND
1920, ARE TO BE TAKEN AS DECLARATIONS OF THE AGREEMENTS, REACHED BY THE
RESPECTIVE SOVEREIGNTIES, STATE AND NATION, AS TO THE FUTURE
JURISDICTION AND RIGHTS OF EACH IN THE ENTIRE AREA OF YOSEMITE NATIONAL
PARK.  P. 528. 

(2)  DISTINGUISHED FROM THE RIGHT TO TAX, THE POWER TO REGULATE THE
SALE AND USE OF ALCOHOLIC BEVERAGES WAS NOT RESERVED BY THE STATE, AND
SUCH REGULATIONS ARE NOT ENFORCEABLE IN THE PARK.  P. 530. 

(3)  THE RESERVATION OF THE RIGHT TO TAX IS TO BE CONSTRUED WITHOUT
EMPLOYING THE RULE OF STRICT CONSTRUCTION APPLIED TO GRANTS LIMITING A
STATE'S TAXING POWER.  P. 432. 

(4)  THIS RESERVATION DOES NOT AUTHORIZE THE STATE TO EXACT, FOR THE
SALE OR IMPORTATION OF ALCOHOLIC BEVERAGES IN THE PARK, THE FEES FOR
LICENSES WHICH ARE PROVIDED BY SEC. 5 OF THE CALIFORNIA ALCOHOLIC
BEVERAGE CONTROL ACT, THOSE PROVISIONS BEING REGULATORY IN CHARACTER. 
P. 533. 

THIS IS NOT A CASE WHERE PROVISIONS REQUIRING A LICENSE MAY BE
TREATED AS SEPARABLE FROM REGULATIONS APPLICABLE TO THOSE LICENSED. 
HERE THE REGULATORY PROVISIONS APPEAR IN THE FORM OF CONDITIONS TO BE
SATISFIED BEFORE A LICENSE MAY BE GRANTED. 

(5)  THE RESERVATION, HOWEVER, DOES AUTHORIZE THE STATE TO TAX SALES
IN THE PARK, UNDER SECS. 23 AND 24 OF THE ACT CITED.  P. 534. 

3.  A CORPORATION OPERATING HOTELS, CAMPS AND STORES IN THE YOSEMITE
NATIONAL PARK, UNDER A CONTRACT WITH THE SECRETARY OF THE INTERIOR
OBLIGING IT TO PAY OVER TO HIM A PORTION OF ITS EXCESS PROFITS,
IMPORTED BEER, WINE AND SPIRITS FROM PLACES OUTSIDE OF CALIFORNIA AND
RETAILED THEM TO CUSTOMERS IN THE PARK AT PRICES APPROVED BY THE
SECRETARY.  THE CALIFORNIA ALCOHOLIC BEVERAGE CONTROL ACT IMPOSES A TAX
PER UNIT SOLD UPON BEER AND WINE SOLD "IN THIS STATE" BY AN IMPORTER,
AND UPON DISTILLED SPIRITS SOLD "IN THIS STATE" BY A RECTIFIER OR
WHOLESALER THEREOF.  IT DEFINES THE TERM "IN THIS STATE" AS EMBRACING
ALL TERRITORY WITHIN THE GEOGRAPHICAL LIMITS OF THE STATE.  HELD: 

(1)  THAT THE COMPANY IS TAXABLE ON ITS SALES.  P. 534. 

THESE TAX PROVISIONS ARE SEPARABLE FROM THE LICENSING AND REGULATORY
PROVISIONS OF THE ACT. 

ALTHOUGH THE COMPANY DOES NOT IMPORT BEVERAGES INTO CALIFORNIA WITHIN
THE MEANING OF THE TWENTY-FIRST AMENDMENT, FOR THE PURPOSES OF THE ACT
IT IS AN IMPORTER MAKING SALES "WITHIN THIS STATE." 

THERE IS NOTHING IN THE ACT RESTRICTING THESE TAXING PROVISIONS TO
SALES MADE BY OR TO PERSONS LICENSED UNDER THE ACT. 

ALTHOUGH THE COMPANY IS NEITHER A MANUFACTURER NOR A RECTIFIER, THE
TAX ON ITS SALES OF DISTILLED SPIRITS IS SUSTAINABLE UNDER A PROVISION
(SEC. 33) THAT "IN EXCEPTIONAL INSTANCES" THE STATE ENFORCING AGENCY
MAY SELL STAMPS, EVIDENCING PAYMENT OF TAX, "TO ON-AND OFF-SALE
DISTILLED SPIRITS LICENSEES AND OTHER PERSONS." 

(2)  OBJECTION THAT COLLECTION OF THE TAXES MAY INTERFERE WITH AN
AGENCY OF THE UNITED STATES AND MAY BE TAKEN IN PART FROM THE UNITED
STATES, BECAUSE OF ITS INTEREST IN THE PROFITS FROM THE CONTRACT, IS
ANSWERED BY THE FACT THAT THE UNITED STATES, BY ITS ACCEPTANCE OF
QUALIFIED JURISDICTION OVER THE PARK, HAS CONSENTED TO SUCH TAXATION. 
P. 536. 

4.  THE TWENTY-FIRST AMENDMENT DID NOT CONFER UPON A STATE THE POWER
TO REGULATE THE IMPORTATION OF INTOXICATING LIQUORS INTO TERRITORY OVER
WHICH IT HAS CEDED TO THE UNITED STATES EXCLUSIVE JURISDICTION.  P.
536. 

COLLINS ET AL. V. YOSEMITE PARK & CURRY CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, WHICH
PERMANENTLY ENJOINED THE APPELLANTS, MEMBERS OF THE BOARD OF
EQUALIZATION OF CALIFORNIA AND THE STATE ATTORNEY GENERAL, FROM
ENFORCING THE CALIFORNIA BEVERAGE CONTROL ACT AGAINST THE APPELLEE,
WITH RESPECT TO SALES OF INTOXICATING LIQUORS IN THE YOSEMITE NATIONAL
PARK. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

APPELLEE, THE YOSEMITE PARK AND CURRY CO., BROUGHT THIS SUIT TO
ENJOIN THE STATE BOARD OF EQUALIZATION AND THE STATE ATTORNEY GENERAL
FROM ENFORCING THE "ALCOHOLIC BEVERAGE CONTROL ACT" OF THE STATE OF
CALIFORNIA,  FN1  WITHIN THE LIMITS OF YOSEMITE NATIONAL PARK. 
APPELLEE IS ENGAGED IN OPERATING, WITHIN THE PARK, HOTELS, CAMPS, AND
STORES, UNDER A CONTRACT WITH THE SECRETARY OF THE INTERIOR, LEASING
PORTIONS OF THE PARK TO APPELLEE FOR A 20-YEAR TERM.  THE CONTRACT,
EXPRESSLY INTENDED TO IMPLEMENT THE CONGRESSIONAL DESIRE TO MAKE THE
PARK A RESORT AND PLAYGROUND FOR THE BENEFIT OF THE PUBLIC, PLACES UPON
APPELLEE THE DUTY OF FURNISHING VISITORS WITH SUNDRY FACILITIES AND
ACCOMMODATIONS.  IF IT PAYS DIVIDENDS IN EXCESS OF 6% ON ITS INVESTMENT
IT MUST PAY TO THE SECRETARY OF THE INTERIOR A SUM EQUAL TO 25% OF THE
EXCESS DURING THE FIRST TEN YEARS, AND 22 1/2% OF ANY EXCESS OVER 6%
EARNED DURING THE SECOND TEN YEARS.  APPELLEE SELLS LIQUORS, BEER AND
WINE TO PARK VISITORS FOR PRICES APPROVED BY THE SECRETARY OF THE
INTERIOR.  IN THE ORDINARY COURSE OF BUSINESS, IT IMPORTS FROM PLACES
OUTSIDE OF CALIFORNIA BEER, WINE, AND DISTILLED SPIRITS, WHICH IT
STORES AND SELLS WITHIN THE PARK. 

ACCORDING TO THE ALLEGATIONS OF APPELLEE'S BILL, APPELLANTS
(DEFENDANTS BELOW) ASSERT THAT THE ALCOHOLIC BEVERAGE CONTROL ACT
APPLIES WITHIN THE PARK AND THAT APPELLEE IS OBLIGATED TO APPLY FOR
PERMITS FOR IMPORTATION AND SALE; THAT APPELLEE IS SUBJECT TO
PROVISIONS OF THE ACT PROHIBITING THE ISSUANCE OF IMPORTER'S LICENSES
TO PERSONS HOLDING ON-SALE RETAIL LICENSES, AND VICE VERSA; THAT
APPELLEE MUST PAY FEES AND TAXES IMPOSED BY THE ACT OR BE SUBJECT TO
PENALTIES.  ALLEGATION WAS MADE THAT APPELLANTS THREATEN TO SEIZE
BEVERAGES ON OR BEING TRANSPORTED TO APPELLEE'S PREMISES, DEMAND
RENDITION OF REPORTS AND KEEPING OF ACCOUNTS, AND THREATEN TO INSTITUTE
CIVIL AND CRIMINAL PROCEEDINGS AGAINST APPELLEE FOR VIOLATION OF THE
ACT.  ON THE OTHER HAND, APPELLEE'S ALLEGATIONS CONTINUE, THE SECRETARY
OF THE INTERIOR, UNDER THE CONTRACT OF LEASE, HAS APPROVED PRICES
MAKING NO ALLOWANCE FOR TAXES, AND HAS INSTRUCTED APPELLEE TO APPLY FOR
NO LICENSE AND TO PAY NO TAX UNDER THE CALIFORNIA ACT, AND THAT PAYMENT
OF SUCH LICENSE FEES OR TAXES WILL NOT BE ALLOWED AS AN OPERATING
EXPENSE UNDER THE CONTRACT. 

APPELLEE BROUGHT THIS SUIT TO RESTRAIN ENFORCEMENT OF THE ALCOHOLIC
BEVERAGE CONTROL ACT WITHIN YOSEMITE PARK, ON THE THEORY THAT THE PARK
IS WITHIN THE EXCLUSIVE JURISDICTION OF THE UNITED STATES.  THE SUIT
BEING ONE TO RESTRAIN THE ENFORCEMENT OF A STATE STATUTE AS APPLIED TO
A SPECIFIC SITUATION, A THREE-JUDGE COURT WAS CONVENED UNDER SEC. 266
OF THE JUDICIAL CODE, 28 U.S.C. SEC. 380.  THE CASE WAS HEARD BELOW
UPON MOTION TO DISMISS THE COMPLAINT.  THE DISTRICT COURT DENIED THIS
MOTION.  IT GRANTED A TEMPORARY INJUNCTION, 20 F.SUPP.  1009, AND LATER
GRANTED THE FINAL INJUNCTION PRAYED FOR BY THE COMPLAINT, RESTRAINING
APPELLANTS (A) FROM ENTERING UPON APPELLEE'S PREMISES, EXAMINING ITS
RECORDS, SEIZING ITS BEVERAGES, OR INTERFERING WITH ITS IMPORTATION AND
SALES OF BEVERAGE WITHIN THE PARK; (B) FROM INTERFERING WITH SHIPMENTS
TO APPELLEE FROM OUTSIDE THE STATE; (C) FROM INSTITUTING ANY ACTIONS
BASED ON ALLEGED VIOLATIONS OF THE ACT WITH RESPECT TO THE IMPORTATION,
POSSESSION, OR SALE OF LIQUORS; (D) FROM REQUIRING REPORTS THEREON; (E)
FROM ENFORCING THE ACT AS TO TRANSACTIONS WITHIN THE PARK. 

THE DISTRICT COURT, AFTER NOTING THAT YOSEMITE NATIONAL PARK CONSISTS
OF YOSEMITE VALLEY AND CONSIDERABLE SURROUNDING TERRITORY, FIRST
DISCUSSED WHAT IT CONCEIVED TO BE THE SITUATION IN THE VALLEY.  FN2  IT
REVIEWED THE HISTORY OF THE LAND:  THE UNITED STATES ACQUIRED IT IN
1848 UNDER THE TREATY OF GUADALUPE HIDALGO,  FN3  RESERVED PROPRIETARY
RIGHTS WHEN CALIFORNIA BECAME A STATE IN 1850,  FN4  AND ON JUNE 30,
1864, GAVE THE VALLEY TO CALIFORNIA IN TRUST FOR PUBLIC PARK AND
RECREATIONAL PURPOSES.  FN5 

THE DISTRICT COURT HELD THAT EXCLUSIVE JURISDICTION OVER THE LAND WAS
ACQUIRED AGAIN BY THE UNITED STATES BY VIRTUE OF THE JOINT OPERATION OF
THREE STATUTES:  AN 1891 CALIFORNIA LAW CEDING TO THE UNITED STATES
EXCLUSIVE JURISDICTION OVER SUCH LAND AS MIGHT BE CEDED TO IT; FN6  A
1905 CALIFORNIA STATUTE RE-CEDING THE VALLEY TO THE UNITED STATES; FN7
AND THE ACT OF JUNE 11, 1906, WHEREBY CONGRESS ACCEPTED THE REGRANT AND
CONSTITUTED THE VALLEY A PART OF THE YOSEMITE NATIONAL PARK.  FN8  IT
FURTHER HELD, OVER APPELLANTS' OBJECTION, THAT THERE WAS NO
CONSTITUTIONAL OBSTACLE TO THE ACQUISITION BY THE UNITED STATES OF
EXCLUSIVE JURISDICTION OVER LAND CEDED TO IT FOR NATIONAL PARK
PURPOSES.  JURISDICTION OVER THE REST OF THE PARK, IT CONCLUDED, WAS IN
THE STATE UNTIL APRIL 15, 1919, WHEN IT WAS OFFERED TO THE NATIONAL
GOVERNMENT (WHICH HAD ALWAYS RETAINED THE PROPRIETARY INTEREST) IN A
STATUTE SAVING TO THE STATE, INTER ALIA, "THE RIGHT TO TAX PERSONS AND
CORPORATIONS, THEIR FRANCHISES AND PROPERTY ON THE LANDS INCLUDED IN
SAID PARKS."  FN9 JURISDICTION OF THE PARK WAS ASSUMED BY THE UNITED
STATES BY ACT OF JUNE 2, 1920, WHICH REFERRED TO THE STATE ACT,
INCLUDING ITS RESERVATION OF A POWER TO TAX.  FN10  THE DISTRICT COURT
HELD THIS RESERVATION INAPPLICABLE, ON THE GROUND THAT THE ALCOHOLIC
BEVERAGE ACT IS CHIEFLY REGULATORY IN NATURE RATHER THAN A REVENUE
MEASURE.  CONCLUDING THAT THE UNITED STATES HAD EXCLUSIVE JURISDICTION
OVER THE LAND IN QUESTION, THE DISTRICT COURT ENJOINED THE ENFORCEMENT
OF THE STATE ACT. 

FROM THIS FINAL DECREE OF INJUNCTION, A DIRECT APPEAL TO THIS COURT
WAS TAKEN UNDER SECS. 238 AND 266 OF THE JUDICIAL CODE.  SEVERAL
QUESTIONS WERE ARGUED ON THE APPEAL.  AT THIS POINT, REFERENCE MAY BE
CONFINED TO APPELLANTS' CONTENTION THAT THE UNITED STATES HAS NO POWER
UNDER THE CONSTITUTION TO EXERCISE EXCLUSIVE JURISDICTION OVER LAND
CEDED TO IT BY A STATE FOR NATIONAL PARK PURPOSES.  PURSUANT TO THE ACT
OF AUGUST 24, 1937, THE COURT CERTIFIED TO THE ATTORNEY GENERAL THAT IN
THIS CAUSE WAS DRAWN IN QUESTION THE CONSTITUTIONALITY OF THE ACTS OF
JUNE 11, 1906, 34 STAT. 831, AND JUNE 2, 1920, 41 STAT. 731, ACCEPTING
EXCLUSIVE JURISDICTION OVER THE AREAS WHICH EMBRACE THE YOSEMITE
NATIONAL PARK.  THE UNITED STATES, REGARDING APPELLEE'S ARGUMENT AS
ADEQUATE, DETERMINED THAT IT WAS NOT NECESSARY TO INTERVENE. 

EXCLUSIVE JURISDICTION.  BY THE ACT OF MARCH 3, 1905, SEE NOTE 7,
CALIFORNIA CEDED AND GRANTED THE UNITED STATES TITLE TO THE "CLEFT" OR
"GORGE," KNOWN AS YOSEMITE VALLEY AND THE MARIPOSA BIG TREE GROVE.  AS
THE ACT OF MARCH 31, 1891, WAS THEN IN FORCE, SEE NOTE 6, EXCLUSIVE
JURISDICTION, WITH THE EXCEPTION OF RIGHT TO ADMINISTER CRIMINAL LAWS
AND SERVE CIVIL PROCESS, PASSED TO THE UNITED STATES, ON ITS
ACCEPTANCE, UNLESS THE UNITED STATES WAS WITHOUT CONSTITUTIONAL POWER
TO EXERCISE IT.  BY THE ACT OF JUNE 11, 1906, SEE NOTE 8, THE CONGRESS
ACCEPTED THE CESSION AND MADE THE LANDS CONVEYED A PART OF THE YOSEMITE
NATIONAL PARK.  THE OTHER LANDS COMPOSING THE PARK HAD BEEN IN THE
PROPRIETORSHIP OF THE NATIONAL GOVERNMENT SINCE CESSION BY MEXICO. 
EXCLUSIVE JURISDICTION OF THEM PASSED FROM THE UNITED STATES TO
CALIFORNIA BY THE ADMITTANCE OF THAT STATE TO THE UNION.  EXCEPT FOR
CERTAIN RIGHTS EXPRESSLY RESERVED, EXCLUSIVE JURISDICTION OF THESE
LANDS WAS GRANTED TO THE UNITED STATES BY THE ACT OF APRIL 15, 1919,
SEE NOTE 9, AND ACCEPTED BY THE CONGRESS ON JUNE 2, 1920, SEE NOTE 10. 
AS THIS ACT GRANTED EXCLUSIVE JURISDICTION OVER ALL "TERRITORY WHICH IS
NOW OR MAY HEREAFTER BE  ...  INCLUDED IN  ...  YOSEMITE NATIONAL
PARK," THE LANGUAGE OF THE CESSION AND ACCEPTANCE IS APT TO DETERMINE
EXCLUSIVE JURISDICTION, WITH THE EXPLICIT RESERVATIONS, OF THE GORGE
ALSO. 

WHATEVER THE EXISTING STATUS OF JURISDICTION AT THE TIME OF THEIR
ENACTMENT, THE ACTS OF CESSION AND ACCEPTANCE OF 1919 AND 1920 ARE TO
BE TAKEN AS DECLARATIONS OF THE AGREEMENTS, REACHED BY THE RESPECTIVE
SOVEREIGNTIES, STATE AND NATION, AS TO THE FUTURE JURISDICTION AND
RIGHTS OF EACH IN THE ENTIRE AREA OF YOSEMITE NATIONAL PARK.  AS
JURISDICTION OVER THE GORGE WAS CREATED BY ONE SET OF STATUTES AND THAT
OVER THE REST OF THE PARK BY DIFFERENT LEGISLATION, THIS ADJUSTMENT WAS
DESIRABLE.  THE STATES OF THE UNION AND THE NATIONAL GOVERNMENT MAY
MAKE MUTUALLY SATISFACTORY ARRANGEMENTS AS TO JURISDICTION OF TERRITORY
WITHIN THEIR BORDERS AND THUS IN A MOST EFFECTIVE WAY, COOPERATIVELY
ADJUST PROBLEMS FLOWING FROM OUR DUAL SYSTEM OF GOVERNMENT.  FN11
JURISDICTION OBTAINED BY CONSENT OR CESSION MAY BE QUALIFIED BY
AGREEMENT OR THROUGH OFFER AND ACCEPTANCE OR RATIFICATION.  FN12  IT IS
A MATTER OF ARRANGEMENT.  THESE ARRANGEMENTS THE COURTS WILL RECOGNIZE
AND RESPECT. 

THE STATE URGES THE CONSTITUTIONAL INABILITY OF THE NATIONAL
GOVERNMENT TO ACCEPT EXCLUSIVE JURISDICTION OF ANY LAND FOR PURPOSES
OTHER THAN THOSE SPECIFIED IN CLAUSE 17, SEC. 8, ARTICLE I OF THE
CONSTITUTION.  FN13  THIS CLAUSE HAS NOT BEEN STRICTLY CONSTRUED.  THIS
COURT AT THIS TERM HAS GIVEN FULL CONSIDERATION TO THE CONSTITUTIONAL
POWER OF THE UNITED STATES TO ACQUIRE LAND UNDER CLAUSE 17 WITHOUT
TAKING EXCLUSIVE JURISDICTION.  FN14  IN THAT CASE, IT WAS SAID:
"CLAUSE 17 CONTAINS NO EXPRESS STIPULATION THAT THE CONSENT OF THE
STATE MUST BE WITHOUT RESERVATIONS.  WE THINK THAT SUCH A STIPULATION
SHOULD NOT BE IMPLIED.  WE ARE UNABLE TO RECONCILE SUCH AN IMPLICATION
WITH THE FREEDOM OF THE STATE AND ITS ADMITTED AUTHORITY TO REFUSE OR
QUALIFY CESSIONS OF JURISDICTION WHEN PURCHASES HAVE BEEN MADE WITHOUT
CONSENT OR PROPERTY HAS BEEN ACQUIRED BY CONDEMNATION."  THE CLAUSE IS
NOT THE SOLE AUTHORITY FOR THE ACQUISITION OF JURISDICTION.  THERE IS
NO QUESTION ABOUT THE POWER OF THE UNITED STATES TO EXERCISE
JURISDICTION SECURED BY CESSION, THOUGH THIS IS NOT PROVIDED FOR BY
CLAUSE 17.  FN15  AND IT HAS BEEN HELD THAT SUCH A CESSION MAY BE
QUALIFIED.  FN16  IT HAS NEVER BEEN NECESSARY, HERETOFORE, FOR THIS
COURT TO DETERMINE WHETHER OR NOT THE UNITED STATES HAS THE
CONSTITUTIONAL RIGHT TO EXERCISE JURISDICTION OVER TERRITORY, WITHIN
THE GEOGRAPHICAL LIMITS OF A STATE, ACQUIRED FOR PURPOSES OTHER THAN
THOSE SPECIFIED IN CLAUSE 17.  IT WAS RAISED BUT NOT DECIDED IN
ARLINGTON HOTEL V. FANT, 278 U.S. 439, 454.  IT WAS ASSUMED WITHOUT
DISCUSSION IN YELLOWSTONE PARK TRANSPORTATION CO. V. GALLATIN COUNTY,
31 F.2D 644.  FN17 

ON ACCOUNT OF THE REGULATORY PHASES OF THE ALCOHOLIC BEVERAGE CONTROL
ACT OF CALIFORNIA, IT IS NECESSARY TO DETERMINE THAT QUESTION HERE. 
THE UNITED STATES HAS LARGE BODIES OF PUBLIC LANDS.  THESE PROPERTIES
ARE USED FOR FORESTS, PARKS, RANGES, WILD LIFE SANCTUARIES, FLOOD
CONTROL, AND OTHER PURPOSES WHICH ARE NOT COVERED BY CLAUSE 17.  IN
SILAS MASON CO. V. TAX COMMISSION OF WASHINGTON, 302 U.S. 186, WE
UPHELD IN ACCORDANCE WITH THE ARRANGEMENTS OF THE STATE AND NATIONAL
GOVERNMENTS THE RIGHT OF THE UNITED STATES TO ACQUIRE PRIVATE PROPERTY
FOR USE IN "THE RECLAMATION OF ARID AND SEMIARID LANDS" AND TO HOLD ITS
PURCHASES SUBJECT TO STATE JURISDICTION.  IN OTHER INSTANCES, IT MAY BE
DEEMED IMPORTANT OR DESIRABLE BY THE NATIONAL GOVERNMENT AND THE STATE
GOVERNMENT IN WHICH THE PARTICULAR PROPERTY IS LOCATED THAT EXCLUSIVE
JURISDICTION BE VESTED IN THE UNITED STATES BY CESSION OR CONSENT.  NO
QUESTION IS RAISED AS TO THE AUTHORITY TO ACQUIRE LAND OR PROVIDE FOR
NATIONAL PARKS.  AS THE NATIONAL GOVERNMENT MAY, "BY VIRTUE OF ITS
SOVEREIGNTY" ACQUIRE LANDS WITHIN THE BORDERS OF STATES BY EMINENT
DOMAIN AND WITHOUT THEIR CONSENT,  FN18  THE RESPECTIVE SOVEREIGNTIES
SHOULD BE IN A POSITION TO ADJUST THEIR JURISDICTIONS.  THERE IS NO
CONSTITUTIONAL OBJECTION TO SUCH AN ADJUSTMENT OF RIGHTS.  IT FOLLOWS
THAT JURISDICTION LESS THAN EXCLUSIVE MAY BE GRANTED THE UNITED
STATES.  THE JURISDICTION OVER THE YOSEMITE NATIONAL PARK IS
EXCLUSIVELY IN THE UNITED STATES EXCEPT AS RESERVED TO CALIFORNIA, E.
G., RIGHT TO TAX, BY THE ACT OF APRIL 15, 1919.  AS THERE IS NO
RESERVATION OF THE RIGHT TO CONTROL THE SALE OR USE OF ALCOHOLIC
BEVERAGES, SUCH REGULATORY PROVISIONS AS ARE FOUND IN THE ACT UNDER
CONSIDERATION ARE UNENFORCEABLE IN THE PARK. 

INTERPRETATION OF RESERVATIONS.  THE LOWER COURT, IN INTERPRETING THE
LANGUAGE OF THE ACTS OF GRANT AND ACCEPTANCE WAS OF THE OPINION THAT
THE SAVING OF "THE RIGHT TO TAX PERSONS AND CORPORATIONS, THEIR
FRANCHISES AND PROPERTY" WAS NOT SUFFICIENTLY BROAD TO JUSTIFY THE
COLLECTION OF FEES FOR LICENSES UNDER SEC. 5 AND SALES UNDER SECS. 23
AND 24 OF THE ALCOHOLIC BEVERAGE CONTROL ACT.  FN19  THE RETENTION OF
THE RIGHT TO CHARGE LICENSE FEES FOR FISHING WAS CONSIDERED AN
INDICATION OF ABANDONMENT OF THE RIGHT TO ENFORCE ANY OTHER LICENSE
FEES; AND FINALLY, THE REGULATORY CHARACTER OF THE CALIFORNIA ENACTMENT
WAS DEEMED TO MARK IT AS NON-ENFORCEABLE UNDER THE RESERVATION OF THE
RIGHT TO TAX.    AS THE RESPECTIVE ACTS OF STATE AND NATION WERE IN THE
NATURE OF A MUTUAL DECLARATION OF RIGHTS, THIS IS NOT AN OCCASION FOR
STRICT CONSTRUCTION OF A GRANT BY A STATE LIMITING ITS TAXING POWER. 
WITHOUT EMPLOYING THAT RULE, WE ARE OF THE OPINION THAT THIS LANGUAGE
IS SUFFICIENTLY BROAD TO COVER EXCISES ON SALES,  FN20  BUT NOT THE
LICENSE FEES PROVIDED FOR BY THIS ACT.  THE FACT THAT THE "RIGHT TO FIX
AND COLLECT LICENSE FEES FOR FISHING IN SAID PARKS" WAS RESERVED, IS
NOT DECISIVE.  IT MAY WELL BE THAT THE NEGOTIATORS OF THE AGREEMENT
CONSIDERED SUCH LICENSES REGULATORY IN NATURE AND THEREFORE REQUIRING
EXPRESS EXCEPTION FROM THE AGREEMENT FOR EXCLUSIVE JURISDICTION, IN
ADDITION TO THE TAX EXCEPTION. 

(A)  LICENSES.  AS THE STATE OF CALIFORNIA HAS IN THE AREA OF THE
YOSEMITE NATIONAL PARK ONLY THE JURISDICTION SAVED UNDER THE CESSION
AND ACCEPTANCE ACTS OF 1919 AND 1920, IT DOES NOT HAVE THE POWER TO
REGULATE THE LIQUOR TRAFFIC IN THE PARK.  EXCEPT AS TO THIS RESERVED
JURISDICTION, CALIFORNIA "PUT THAT AREA BEYOND THE FIELD OF OPERATION
OF HER LAWS."  FN21  WHILE THE STATE HAS, UNDER ITS RESERVATION, THE
RIGHT TO USE MEANS TO FORCE COLLECTION OF THE TAXES SAVED,  FN22  IT
SEEMS CLEAR THAT THE LICENSES REQUIRED BY SEC. 5 GO BEYOND AIDS TO THE
COLLECTION OF TAXES AND ARE TRULY REGULATORY IN CHARACTER.  THIS IS NOT
A CASE WHERE PROVISIONS REQUIRING A LICENSE MAY BE TREATED AS SEPARABLE
FROM REGULATIONS APPLICABLE TO THOSE LICENSED.  FN23  HERE THE
REGULATORY PROVISIONS APPEAR IN THE FORM OF CONDITIONS TO BE SATISFIED
BEFORE A LICENSE MAY BE GRANTED.  FN24 THE PROVISIONS REQUIRING
LICENSES FOR THE IMPORTATION OR SALE OF ALCOHOLIC BEVERAGES IN THE PARK
ARE INVALID. 

(B)  EXCISE TAXES.  A DIFFERENT CONCLUSION OBTAINS, HOWEVER, WITH
RESPECT TO THE EXCISE TAX PROVISIONS OF THE ALCOHOLIC BEVERAGE CONTROL
ACT, LAYING A TAX, AT A SPECIFIED RATE PER UNIT SOLD, ON BEER, WINE,
AND DISTILLED SPIRITS SOLD "IN THIS STATE."  THE PARK COMPANY, SEEKING
TO BRING THE EXCISE PROVISIONS OF THE ACT WITHIN THE PRINCIPLE STATED
ABOVE WITH RESPECT TO THE LICENSE FEE PROVISIONS, CONTENDS THAT,
NOTWITHSTANDING THE SEPARABILITY CLAUSE,  FN25  THE TAXING FEATURES
CANNOT BE SEPARATED FROM THE REGULATORY FEATURES, AND THAT "THE ACT
DOES NOT EVEN PURPORT TO TAX PERSONS NOT SUBJECT TO LICENSING
REQUIREMENTS."  THUS THE ARGUMENT IS MADE THAT SEC. 23 IMPOSES AN
EXCISE TAX ON BEER AND WINE SOLD BY AN IMPORTER, AND APPLIES NOT TO THE
COMPANY, WHICH SELLS BEVERAGES DIRECT TO CONSUMERS, BUT ONLY TO
IMPORTERS LICENSED UNDER THE ACT, AND RESTRICTED BY THEIR LICENSE TO
SALES TO RETAIL LICENSEES. 

NEITHER PARTY CITES ANY PERTINENT STATE COURT DECISION.  THERE IS
NOTHING IN THE STATUTE ITSELF COMPELLING THE CONCLUSION THAT THE EXCISE
TAX AND REGULATORY PROVISIONS ARE INSEPARABLE, OR REQUIRING THE COURT
TO OVERTURN THE PRESUMPTIVELY CORRECT DETERMINATION OF THE
ADMINISTRATIVE OFFICERS THAT THE SALES WITHIN THE PARK ARE SUBJECT TO
THE EXCISE TAX.  SECTION 23 PROVIDES THAT AN EXCISE TAX IS IMPOSED UPON
BEER AND WINE SOLD "IN THIS STATE BY (AN)  ...  IMPORTER."  REFERENCE
TO PROVISIONS OF THE ACT DEFINING THE TERMS USED IN THIS SECTION  FN26
MAKES IT PLAIN THAT ALTHOUGH APPELLEE COMPANY DOES NOT IMPORT BEVERAGES
INTO CALIFORNIA WITHIN THE MEANING OF THE TWENTY-FIRST AMENDMENT, IT IS
AN IMPORTER FOR PURPOSES OF THE ACT, AND, AS SUCH, IS SUBJECT TO THE
TAX.  THE ACT IS RESTRICTED TO SALES "IN THIS STATE," BUT THAT TERM
EMBRACES ALL TERRITORY WITHIN THE GEOGRAPHICAL LIMITS OF THE STATE. 
FN27  THERE IS NOTHING IN THE ACT RESTRICTING THIS TAXING PROVISION TO
SALES MADE BY OR TO PERSONS LICENSED UNDER THE ACT.  SEC. 23 CLEARLY
APPLIES TO BEER AND WINE SOLD BY APPELLEE COMPANY IN THE PARK, AND IT
APPLIES TO SUCH SALES REGARDLESS OF THE APPLICABILITY VEL NON OF THE
REGULATORY OR LICENSING PROVISIONS OF THE ACT. 

THIS STATE BY RECTIFIERS OR WHOLESALERS."  APPELLEE COMPANY DOES NOT
COME WITHIN THE STATUTORY DEFINITION OF EITHER OF THESE GROUPS,  FN28
BUT SEC. 24 MUST BE READ IN CONJUNCTION WITH SEC. 33.  SEC. 33 PROVIDES
THAT THE "TAX IMPOSED BY SEC. 24 OF THIS ACT UPON THE SALE OF DISTILLED
SPIRITS SHALL BE COLLECTED FROM RECTIFIERS AND WHOLESALERS OF DISTILLED
SPIRITS AND PAYMENT OF THE TAX SHALL BE EVIDENCED BY STAMPS ISSUED BY
THE BOARD TO SUCH RECTIFIERS AND WHOLESALERS," AND CONTINUES WITH THE
PROVISION THAT "IN EXCEPTIONAL INSTANCES THE BOARD MAY SELL SUCH STAMPS
TO ON- AND OFF-SALE DISTILLED SPIRITS LICENSEES AND OTHER PERSONS."  IN
VIEW OF THE ATYPICAL CIRCUMSTANCES OF THE PRESENT CASE, WE CANNOT
CONSIDER ERRONEOUS AN INTERPRETATION BY THE BOARD THAT STAMPS, TO BE
AFFIXED TO THE LIQUOR CONTAINERS, MIGHT BE ISSUED AND SOLD TO APPELLEE
COMPANY.  THESE PROVISIONS, LIKE SEC. 23, ARE INDEPENDENT OF ANY
LICENSING OR REGULATORY PROVISIONS OF THE ACT, AND MAY BE ENFORCED
INDEPENDENTLY, AS A PURELY TAX OR REVENUE MEASURE. 

THE OBJECTION THAT COLLECTION OF THE TAXES MAY NOT ONLY INTERFERE
WITH AN AGENCY OF THE UNITED STATES BUT MAY BE ACTUALLY PARTLY
COLLECTED FROM THE NATIONAL GOVERNMENT BECAUSE OF ITS INTEREST IN THE
PROFITS UNDER THE CONTRACT IS FULLY ANSWERED BY THE FACT THAT THE
UNITED STATES, BY ITS ACCEPTANCE OF QUALIFIED JURISDICTION, HAS
CONSENTED TO SUCH A TAX.  FN29 

XXI AMENDMENT.  THE STATE MAKES THE POINT THAT SEC. 2 OF THE XXI
AMENDMENT  FN30  GIVES IT THE RIGHT TO REGULATE THE IMPORTATION OF
INTOXICATING LIQUORS.  RELIANCE FOR ENFORCEMENT IS PLACED UPON SECS. 49
AND 49.2 OF THE ALCOHOLIC BEVERAGE CONTROL ACT.  FN31  THE ARGUMENT FOR
THIS CLAIM IS BOTTOMED UPON OUR DECISION IN STATE BOARD OF EQUALIZATION
V. YOUNG'S MARKET CO., 299 U.S. 59, WHERE WE HELD THAT A STATUTE
IMPOSING A $500 LICENSE FEE FOR IMPORTING AND A $750 LICENSE FEE FOR
BREWING BEER DID NOT VIOLATE THE COMMERCE CLAUSE OR THE EQUAL
PROTECTION CLAUSE, BECAUSE THE WORDS OF THE XXI AMENDMENT "ARE APT TO
CONFER UPON THE STATE THE POWER TO FORBID ALL IMPORTATIONS" AND "THE
STATE MAY ADOPT A LESSER DEGREE OF REGULATION THAN TOTAL PROHIBITION"
(PP. 62, 63).  FN32 THE LOWER COURT WAS OF THE OPINION THAT THOUGH THE
AMENDMENT MAY HAVE INCREASED "THE STATE'S POWER TO DEAL WITH THE
PROBLEM  ...  , IT DID NOT INCREASE ITS JURISDICTION."  WITH THIS
CONCLUSION, WE AGREE.  AS TERRITORIAL JURISDICTION OVER THE PARK WAS IN
THE UNITED STATES, THE STATE COULD NOT LEGISLATE FOR THE AREA MERELY ON
ACCOUNT OF THE XXI AMENDMENT N33.  THERE WAS NO TRANSPORTATION INTO
CALIFORNIA "FOR DELIVERY OR USE THEREIN."  THE DELIVERY AND USE IS IN
THE PARK, AND UNDER A DISTINCT SOVEREIGNTY.  WHERE EXCLUSIVE
JURISDICTION IS IN THE UNITED STATES, WITHOUT POWER IN THE STATE TO
REGULATE ALCOHOLIC BEVERAGES, THE XXI AMENDMENT IS NOT APPLICABLE. 
FN34 

CONCLUSION.  THE BILL OF COMPLAINT STATES THAT THE DEFENDANTS, THE
STATE OFFICIALS, "ASSERT THAT SAID ALCOHOLIC BEVERAGE CONTROL ACT OF
THE STATE OF CALIFORNIA APPLIES TO COMPLAINANT'S OPERATIONS WITHIN SAID
YOSEMITE NATIONAL PARK; ...  THAT IT IS OBLIGATED TO PAY THE FEES AND
TAXES IMPOSED BY SAID ACT AND IS SUBJECT TO THE PENALTIES THEREOF FOR
THE POSSESSION AND SALE OF SAID BEVERAGES WITHOUT COMPLIANCE WITH THE
PROVISIONS OF SAID ACT."  IN THE PRAYER OF THE BILL, THE COMPLAINANT
PRAYS FOR AN INJUNCTION RESTRAINING THE DEFENDANTS "FROM ENFORCING IN
ANY MANNER WITHIN THE LIMITS OF YOSEMITE NATIONAL PARK, OR IN RESPECT
OF TRANSACTIONS WITHIN SAID PARK, THE ALCOHOLIC BEVERAGE CONTROL ACT OF
THE STATE OF CALIFORNIA."  THE FINAL DECREE FORBIDS ENTERING UPON THE
PREMISES OF COMPLAINANT; SEIZING, IMPEDING OR INTERFERING WITH ANY
SHIPMENTS TO COMPLAINANT IN YOSEMITE NATIONAL PARK; FROM INSTITUTING
ANY ACTIONS OR PROCEEDINGS IN ANY COURT OF LAW OR EQUITY FOR VIOLATIONS
OR ALLEGED VIOLATIONS OF SAID ALCOHOLIC BEVERAGE CONTROL ACT IN RESPECT
OF THE IMPORTATION, POSSESSION OR SALE IN THE PARK; FROM REQUIRING OR
DEMANDING REPORTS ON THE IMPORTATION, POSSESSION OR SALE OF SAID
BEVERAGES; FROM ENFORCING IN ANY MANNER WITHIN THE LIMITS OF YOSEMITE
NATIONAL PARK, OR IN RESPECT OF TRANSACTIONS WITHIN SAID PARK, THE
ALCOHOLIC BEVERAGE CONTROL ACT OF THE STATE OF CALIFORNIA. 

FROM THE PLEADINGS AND DECREE IT IS CLEAR THAT UNTIL NOW THE
CONTROVERSY HAS TURNED NOT UPON SPECIAL PROVISIONS OF THE ACT IN
QUESTION BUT UPON ITS APPLICABILITY AS A WHOLE.  AS IN OUR JUDGMENT, AS
HERETOFORE POINTED OUT, THE TAX PROVISIONS ARE ENFORCEABLE AND THE
REGULATORY PROVISIONS UNENFORCEABLE, IT IS NECESSARY TO REVERSE THE
DECREE AND REMAND THE CAUSE TO THE DISTRICT COURT FOR A DETERMINATION
BY THE COURT IN ACCORDANCE WITH THIS OPINION OF THE APPLICABILITY OF
SUCH SECTIONS OF THE ACT AS THE STATE MAY THREATEN TO ENFORCE. 
REVERSED. 

FN1  CAL. STAT. 1935, C. 330, AS AMENDED, CAL. STAT. 1937, C. 681,
758. 

FN2  THE DISCUSSION APPLIES EQUALLY TO THE MARIPOSA BIG TREE GROVE. 

FN3  9 STAT. 922. 

FN4  9 STAT. 452. 

FN5  13 STAT. 325. 

FN6  "SECTION 1.  THE STATE OF CALIFORNIA HEREBY CEDES TO THE UNITED
STATES OF AMERICA EXCLUSIVE JURISDICTION OVER SUCH PIECE OR PARCEL OF
LAND AS MAY HAVE BEEN OR MAY BE HEREAFTER CEDED OR CONVEYED TO THE
UNITED STATES, DURING THE TIME THE UNITED STATES SHALL BE OR REMAIN THE
OWNER THEREOF, FOR ALL PURPOSES EXCEPT THE ADMINISTRATION OF THE
CRIMINAL LAWS OF THIS STATE AND THE SERVICE OF CIVIL PROCESS THEREIN." 
CAL. STAT. 1891, C. 181. 

FN7  "AN ACT TO RECEDE AND REGRANT UNTO THE UNITED STATES OF AMERICA,
THE 'YOSEMITE VALLEY,' AND THE LAND EMBRACING THE 'MARIPOSA BIG TREE
GROVE.' 

     .         .         .         .         . 

"SECTION 1.  THE STATE OF CALIFORNIA DOES HEREBY RECEDE AND REGRANT
UNTO THE UNITED STATES OF AMERICA, THE 'CLEFT' OR 'GORGE' IN THE
GRANITE PEAK OF THE SIERRA NEVADA MOUNTAINS, SITUATED IN THE COUNTY OF
MARIPOSA, STATE OF CALIFORNIA, AND THE HEADWATERS OF THE MERCED RIVER,
AND KNOWN AS THE YOSEMITE VALLEY, WITH ITS BRANCHES OR SPURS, GRANTED
UNTO THE STATE OF CALIFORNIA IN TRUST FOR PUBLIC USE, RESORT AND
RECREATION BY THE ACT OF CONGRESS ENTITLED 'AN ACT AUTHORIZING A GRANT
TO THE STATE OF CALIFORNIA OF THE YOSEMITE VALLEY AND OF THE LAND
EMBRACING THE 'MARIPOSA BIG TREE GROVE,' APPROVED JUNE 30TH, 1864; AND
THE STATE OF CALIFORNIA DOES HEREBY RELINQUISH UNTO THE UNITED STATES
OF AMERICA AND RESIGN THE TRUSTS CREATED AND GRANTED BY THE SAID ACT OF
CONGRESS. 

     .        .         .         .         . 

"SEC. 3.  THIS ACT SHALL TAKE EFFECT FROM AND AFTER ACCEPTANCE BY THE
UNITED STATES OF AMERICA OF THE RECESSIONS AND REGRANTS HEREIN MADE,
THEREBY FOREVER RELEASING THE STATE OF CALIFORNIA FROM FURTHER COST OF
MAINTAINING THE SAID PREMISES, THE SAME TO BE HELD FOR ALL TIME BY THE
UNITED STATES OF AMERICA FOR PUBLIC USE, RESORT AND RECREATION, AND
IMPOSING ON THE UNITED STATES OF AMERICA THE COST OF MAINTAINING THE
SAME AS A NATIONAL PARK.  PROVIDED, HOWEVER, THAT THE RECESSION AND
REGRANT HEREBY MADE SHALL NOT AFFECT VESTED RIGHTS AND INTERESTS OF
THIRD PERSONS."  CAL. STAT. 1905, C. 60. 

FN8  "RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE RECESSION AND
REGRANTING UNTO THE UNITED STATES BY THE STATE OF CALIFORNIA OF THE
CLEFT OR GORGE IN THE GRANITE PEAK OF THE SIERRA NEVADA MOUNTAINS,
SITUATED IN THE COUNTY OF MARIPOSA, STATE OF CALIFORNIA, AND THE
HEADWATERS OF THE MERCED RIVER, AND KNOWN AS THE YOSEMITE VALLEY, WITH
ITS BRANCHES OR SPURS, GRANTED UNTO THE STATE OF CALIFORNIA IN TRUST
FOR PUBLIC USE, RESORT, AND RECREATION BY THE ACT OF CONGRESS ENTITLED
'AN ACT AUTHORIZING A GRANT TO THE STATE OF CALIFORNIA OF THE YOSEMITE
VALLEY AND OF THE LAND EMBRACING THE MARIPOSA BIG TREE GROVE,' APPROVED
JUNE THIRTIETH, EIGHTEEN HUNDRED AND SIXTY-FOUR (THIRTEENTH STATUTES,
PAGE THREE HUNDRED AND TWENTY-FIVE), AS WELL AS THE TRACTS EMBRACING
WHAT IS KNOWN AS THE 'MARIPOSA BIG TREE GROVE,' LIKEWISE GRANTED UNTO
THE STATE OF CALIFORNIA BY THE AFORESAID ACT OF CONGRESS, IS HEREBY
RATIFIED AND ACCEPTED, AND THE TRACTS OF LANDS EMBRACING THE YOSEMITE
VALLEY AND THE MARIPOSA BIG TREE GROVE, AS DESCRIBED IN THE ACT OF
CONGRESS APPROVED JUNE THIRTIETH, EIGHTEEN HUNDRED AND SIXTY-FOUR,
TOGETHER WITH THAT PART OF FRACTIONAL SECTIONS FIVE AND SIX, TOWNSHIP
FIVE SOUTH, RANGE TWENTY-TWO EAST, MOUNT DIABLO MERIDIAN, CALIFORNIA,
LYING SOUTH OF THE SOUTH FORK OF MERCED RIVER AND ALMOST WHOLLY BETWEEN
THE MARIPOSA BIG TREE GROVE AND THE PRESENT SOUTH BOUNDARY OF THE
YOSEMITE NATIONAL PARK, BE, AND THE SAME ARE HEREBY, RESERVED AND
WITHDRAWN FROM SETTLEMENT, OCCUPANCY, OR SALE UNDER THE LAWS OF THE
UNITED STATES AND SET APART AS RESERVED FOREST LANDS, SUBJECT TO ALL
THE LIMITATIONS, CONDITIONS, AND PROVISIONS OF THE ACT OF CONGRESS
APPROVED OCTOBER FIRST, EIGHTEEN HUNDRED AND NINETY, ENTITLED 'AN ACT
TO SET APART CERTAIN TRACTS OF LAND IN THE STATE OF CALIFORNIA AS
FOREST RESERVATIONS,' AS WELL AS THE LIMITATIONS, CONDITIONS, AND
PROVISIONS OF THE ACT OF CONGRESS APPROVED FEBRUARY SEVENTH, NINETEEN
HUNDRED AND FIVE, ENTITLED 'AN ACT TO EXCLUDE FROM THE YOSEMITE
NATIONAL PARK, CALIFORNIA, CERTAIN LANDS THEREIN DESCRIBED, AND TO
ATTACH AND INCLUDE THE SAID LANDS IN THE SIERRA FOREST RESERVE,' AND
SHALL HEREAFTER FORM A PART OF THE YOSEMITE NATIONAL PARK."  34 STAT.
831. 

FN9  "AN ACT TO CEDE TO THE UNITED STATES EXCLUSIVE JURISDICTION OVER
YOSEMITE NATIONAL PARK, SEQUOIA NATIONAL PARK, AND GENERAL GRANT
NATIONAL PARK IN THE STATE OF CALIFORNIA. 

     .         .         .         .         . 

"SECTION 1.  EXCLUSIVE JURISDICTION SHALL BE AND THE SAME IS HEREBY
CEDED TO THE UNITED STATES OVER AND WITHIN ALL OF THE TERRITORY WHICH
IS NOW OR MAY HEREAFTER BE INCLUDED IN THOSE SEVERAL TRACTS OF LAND IN
THE STATE OF CALIFORNIA SET ASIDE AND DEDICATED FOR PARK PURPOSES BY
THE UNITED STATES AS 'YOSEMITE NATIONAL PARK,' 'SEQUOIA NATIONAL PARK,'
AND 'GENERAL GRANT NATIONAL PARK' RESPECTIVELY; SAVING, HOWEVER, TO THE
STATE OF CALIFORNIA THE RIGHT TO SERVE CIVIL OR CRIMINAL PROCESS WITHIN
THE LIMITS OF THE AFORESAID PARKS IN SUITS OR PROSECUTIONS FOR OR ON
ACCOUNT OF RIGHTS ACQUIRED, OBLIGATIONS INCURRED OR CRIMES COMMITTED IN
SAID STATE OUTSIDE OF SAID PARKS; AND SAVING FURTHER, TO THE SAID STATE
THE RIGHT TO TAX PERSONS AND CORPORATIONS, THEIR FRANCHISES AND
PROPERTY ON THE LANDS INCLUDED IN SAID PARKS, AND THE RIGHT TO FIX AND
COLLECT LICENSE FEES FOR FISHING IN SAID PARKS; AND SAVING ALSO TO THE
PERSONS RESIDING IN ANY OF SAID PARKS NOW OR HEREAFTER THE RIGHT TO
VOTE AT ALL ELECTIONS HELD WITHIN THE COUNTY OR COUNTIES IN WHICH SAID
PARKS ARE SITUATE; PROVIDED, HOWEVER, THAT JURISDICTION SHALL NOT VEST
UNTIL THE UNITED STATES THROUGH THE PROPER OFFICER NOTIFIES THE STATE
OF CALIFORNIA THAT THEY ASSUME POLICE JURISDICTION OVER SAID PARKS." 
CAL. STAT. 1919, C. 51. 

FN10  41 STAT. 731, 16 U.S.C. SEC. 57. 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE PROVISIONS OF
THE ACT OF THE LEGISLATURE OF THE STATE OF CALIFORNIA (APPROVED APRIL
15, 1919), CEDING TO THE UNITED STATES EXCLUSIVE JURISDICTION OVER THE
TERRITORY EMBRACED AND INCLUDED WITHIN THE YOSEMITE NATIONAL PARK,
SEQUOIA NATIONAL PARK, AND GENERAL GRANT NATIONAL PARK, RESPECTIVELY,
ARE HEREBY ACCEPTED AND SOLE AND EXCLUSIVE JURISDICTION IS HEREBY
ASSUMED BY THE UNITED STATES OVER SUCH TERRITORY, SAVING, HOWEVER, TO
THE SAID STATE OF CALIFORNIA THE RIGHT TO SERVE CIVIL OR CRIMINAL
PROCESS WITHIN THE LIMITS OF THE AFORESAID PARKS OR EITHER OF THEM IN
SUITS OR PROSECUTIONS FOR OR ON ACCOUNT OF RIGHTS ACQUIRED, OBLIGATIONS
INCURRED, OR CRIMES COMMITTED IN SAID STATE OUTSIDE OF SAID PARKS; AND
SAVING FURTHER TO THE SAID STATE THE RIGHT TO TAX PERSONS AND
CORPORATIONS, THEIR FRANCHISES AND PROPERTY ON THE LANDS INCLUDED IN
SAID PARKS, AND THE RIGHT TO FIX AND COLLECT LICENSE FEES FOR FISHING
IN SAID PARKS; AND SAVING ALSO TO THE PERSONS RESIDING IN ANY OF SAID
PARKS NOW OR HEREAFTER THE RIGHT TO VOTE AT ALL ELECTIONS HELD WITHIN
THE COUNTY OR COUNTIES IN WHICH SAID PARKS ARE SITUATED.  ALL THE LAWS
APPLICABLE TO PLACES UNDER SOLE AND EXCLUSIVE JURISDICTION OF THE
UNITED STATES SHALL HAVE FORCE AND EFFECT IN SAID PARKS OR EITHER OF
THEM.  ALL FUGITIVES FROM JUSTICE TAKING REFUGE IN SAID PARKS, OR
EITHER OF THEM, SHALL BE SUBJECT TO THE SAME LAWS AS REFUGEES FROM
JUSTICE FOUND IN THE STATE OF CALIFORNIA." 

FN11  CF. FORT LEAVENWORTH R. CO. V. LOWE, 114 U.S. 525, 541;
HINDERLIDER V. LAPLATA RIVER & CHERRY CREEK DITCH CO., ANTE, PP. 92,
104. 

FN12  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 146; SILAS MASON
CO. V. TAX COMMISSION, 302 U.S. 186, 203; FORT LEAVENWORTH R. CO. V.
LOWE, SUPRA; SURPLUS TRADING CO. V. COOK, 281 U.S. 647, 651. 

FN13  "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, AND TO EXERCISE LIKE AUTHORITY
OVER ALL PLACES PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE
STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES,
ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL BUILDINGS; ... " 

FN14  JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, 148. 

FN15  FORT LEAVENWORTH R. CO. V. LOWE, SUPRA; CHICAGO, R.I. & P. RY.
CO. V. MCGLINN, 114 U.S. 542; BENSON V. UNITED STATES, 146 U.S. 325;
ARLINGTON HOTEL CO. V. FANT, 278 U.S. 439; UNITED STATES V. UNZEUTA,
281 U.S. 138; SURPLUS TRADING CO. V. COOK, 281 U.S. 647; STANDARD OIL
CO. V. CALIFORNIA, 291 U.S. 242; YELLOWSTONE PARK TRANSPORTATION CO. V.
GALLATIN COUNTY, 31 F.2D 644. 

FN16  FORT LEAVENWORTH R. CO. V. LOWE, SUPRA. 

FN17  CF. RAINIER NAT. PARK CO. V. MARTIN, 18 F.SUPP.  481. 

FN18  JAMES V. DRAVO CONTRACTING CO., SUPRA, 147; KOHL V. UNITED
STATES, 91 U.S. 367, 371, 372. 

FN19  "SEC.  5.  THE FOLLOWING ARE THE TYPES OF LICENSES TO BE ISSUED
UNDER THIS ACT AND THE ANNUAL FEES TO BE CHARGED THEREFOR. 

(CHART OMITTED) 

"SEC. 23.  AN EXCISE TAX IS HEREBY IMPOSED UPON ALL BEER AND WINE
SOLD IN THIS STATE BY A MANUFACTURER OR IMPORTER, EXCEPT AS OTHERWISE
IN THIS ACT PROVIDED, AT THE FOLLOWING RATES: 

"(A)  ON ALL BEER, SIXTY-TWO CENTS FOR EVERY BARREL CONTAINING THIRTY
ONE GALLONS, AND AT A PROPORTIONATE RATE FOR ANY OTHER QUANTITY; 

"(B)  ON ALL NATURAL DRY WINES ONE CENT PER WINE GALLON AND AT A
PROPORTIONATE RATE FOR ANY OTHER QUANTITY; (C) ON ALL OTHER STILL WINES
TWO CENTS PER WINE GALLON AND AT A PROPORTIONATE RATE FOR ANY OTHER
QUANTITY; (D) ON CHAMPAGNE, SPARKLING WINE, EXCEPT SPARKLING HARD
CIDER, WHETHER NATURALLY OR ARTIFICIALLY CARBONATED ONE AND ONE-HALF
CENTS PER HALF PINT OR FRACTION THEREOF, THREE CENTS PER PINT OR
FRACTION THEREOF GREATER THAN ONE-HALF PINT, SIX CENTS PER QUART OR
FRACTION THEREOF GREATER THAN ONE PINT; (E) ON SPARKLING HARD CIDER TWO
CENTS PER WINE GALLON AND AT A PROPORTIONATE RATE FOR ANY OTHER
QUANTITY."  STATUTES 1937, CH. 758; OPERATIVE JULY 1, 1937. 

"SEC. 24.  AN EXCISE TAX IS HEREBY IMPOSED UPON ALL DISTILLED SPIRITS
SOLD IN THIS STATE BY RECTIFIERS OR WHOLESALERS THEREOF, AT THE
FOLLOWING RATES: 

"ON ALL DISTILLED SPIRITS OF PROOF STRENGTH OR LESS, TWO CENTS ON
EACH BOTTLE CONTAINING TWO OUNCES OR FRACTION THEREOF; FIVE CENTS ON
EACH BOTTLE CONTAINING EIGHT OUNCES OR FRACTION THEREOF GREATER THAN
TWO OUNCES; TEN CENTS ON EACH BOTTLE CONTAINING ONE PINT OR FRACTION
THEREOF GREATER THAN A HALF-PINT; SIXTEEN CENTS ON EACH BOTTLE
CONTAINING ONE-FIFTH GALLON OR FRACTION THEREOF GREATER THAN ONE PINT;
TWENTY CENTS ON EACH BOTTLE CONTAINING ONE QUART OR FRACTION THEREOF
GREATER THAN ONE-FIFTH GALLON; FORTY CENTS ON EACH BOTTLE CONTAINING
ONE-HALF GALLON OR FRACTION THEREOF, GREATER THAN ONE QUART; EIGHTY
CENTS ON EACH BOTTLE CONTAINING ONE GALLON OR FRACTION THEREOF GREATER
THAN ONE-HALF GALLON, AND AT A PROPORTIONATE RATE FOR ANY QUANTITY. 

"ALL DISTILLED SPIRITS IN EXCESS OF PROOF STRENGTH SHALL BE TAXED AT
DOUBLE THE ABOVE RATE."  STATUTES 1937, CH. 758; OPERATIVE JULY 1,
1937. 

FN20  MID-NORTHERN OIL CO. V. WALKER, 268 U.S. 45, 49; RAINIER NAT.
PARK CO. V. MARTIN, 18 F.SUPP.  481, 486, AFFIRMED, 302 U.S. 661, ON
THE AUTHORITY OF THE WALKER CASE. 

IN THIS VIEW WE NEED NOT CONSIDER APPELLANTS' ARGUMENT THAT THE
CONSTITUTION OF CALIFORNIA FORBIDS THE RELEASE OF THE TAXING POWER. 

FN21  STANDARD OIL CO. V. CALIFORNIA, 291 U.S. 242. 

FN22  RAINIER NATIONAL PARK V. MARTIN, 18 F.SUPP.  481, 488. 

FN23  CF. ELECTRIC BOND & SHARE CO. V. SECURITIES & EXCHANGE COMM'N,
303 U.S. 419. 

FN24  ART. XX, SEC. 22, OF THE CALIFORNIA CONSTITUTION PROVIDES THAT
THE STATE BOARD OF EQUALIZATION "SHALL HAVE THE POWER, IN ITS
DISCRETION, TO DENY OR REVOKE ANY SPECIFIC LIQUOR LICENSE IF IT SHALL
DETERMINE FOR GOOD CAUSE THAT THE GRANTING OR CONTINUANCE OF SUCH
LICENSE WOULD BE CONTRARY TO PUBLIC WELFARE OR MORALS." 

THE ALCOHOLIC BEVERAGE CONTROL ACT, CAL. STAT. 1935, C. 330, AS
AMENDED STAT. 1937, C. 681, C. 758, CONTAINS, INTER ALIA, PROVISIONS
THAT NO PERSON MAY PERFORM ACTS AUTHORIZED BY A LICENSE, UNLESS
LICENSED (SEC. 3); THAT AN IMPORTER'S LICENSE MAY BE ISSUED ONLY TO THE
HOLDER OF A MANUFACTURER'S, RECTIFIER'S, OR WHOLESALER'S LICENSE, SEC.
6(D); THAT APPLICATION OF A REQUIRED TYPE BE FILED FOR A LICENSE (SEC.
10); THAT NO ON-SALE DISTILLED SPIRITS LICENSE SHALL BE ISSUED TO ANY
APPLICANT WHO IS NOT A CITIZEN OF THE UNITED STATES (SEC. 12); THAT NO
DISTILLED SPIRITS LICENSE MAY BE ISSUED TO ANY PERSON OR AGENT OF ANY
PERSON WHO MANUFACTURES DISTILLED SPIRITS WITHIN OR WITHOUT THE STATE
(SEC. 20 1/2); THAT RETAIL LICENSES MAY NOT BE GRANTED FOR PREMISES IN
CERTAIN LOCATIONS (SECS. 13-17); THAT NO RETAIL ON-SALE OR OFF-SALE
LICENSEE SHALL PURCHASE ALCOHOLIC BEVERAGES FOR RESALE FROM ANY PERSON
EXCEPT A PERSON HOLDING A BEER, OR WINE, MANUFACTURER'S, A RECTIFIER'S
OR A WHOLESALER'S LICENSE ISSUED UNDER THIS ACT (SEC. 6.6). 

FN25  "SEC.  70.  IF ANY SECTION, SUBSECTION, CLAUSE, SENTENCE OR
PHRASE OF THIS ACT WHICH IS REASONABLY SEPARABLE FROM THE REMAINING
PORTION OF THIS ACT IS FOR ANY REASON HELD TO BE UNCONSTITUTIONAL, SUCH
DECISION SHALL NOT AFFECT THE REMAINING PORTIONS OF THIS ACT.  THE
LEGISLATURE HEREBY DECLARES THAT IT WOULD HAVE PASSED THE REMAINING
PORTIONS OF THIS ACT IRRESPECTIVE OF THE FACT THAT ANY SUCH SECTION,
SUBSECTION, CLAUSE, SENTENCE OR PHRASE OF THIS ACT BE DECLARED
UNCONSTITUTIONAL." 

FN26  SEC. 2(K):  "'IMPORTER' MEANS ANY CONSIGNEE OF ALCOHOLIC
BEVERAGES BROUGHT INTO THIS STATE FROM WITHOUT THIS STATE WHEN SUCH
ALCOHOLIC BEVERAGES ARE FOR DELIVERY OR USE WITHIN THIS STATE, ...  "
SEC. 2(W):  "'WITHIN THIS STATE' MEANS ALL TERRITORY WITHIN THE
BOUNDARIES OF THIS STATE."  SEC. 2(WL):  "'WITHOUT THE STATE' MEANS ALL
TERRITORY WITHOUT THE BOUNDARIES OF THE STATE." 

FN27  SEE SUPRA, NOTE 26.  SEE BOUNDARY OF STATE OF CALIFORNIA AS
DEFINED IN CAL. CONST., ART. XXI, SEC. 1. 

COMPARE RAINIER NAT. PARK CO. V. MARTIN, 18 F.SUPP.  481, 486(W.D.
WASH.), AFFIRMED 302 U.S. 661. 

FN28  SEC. 2(J)  "'RECTIFIER' MEANS EVERY PERSON WHO COLORS, FLAVORS,
OR OTHERWISE PROCESSES DISTILLED SPIRITS BY DISTILLATION, BLENDING,
PERCOLATING OR OTHER PROCESSES." 

(S)  "'WHOLESALER' MEANS AND INCLUDES EVERY PERSON OTHER THAN A
MANUFACTURER OR RECTIFIER WHO IS ENGAGED IN BUSINESS AS A JOBBER OR
WHOLESALE MERCHANT, DEALING IN ALCOHOLIC BEVERAGES." 

FN29  RAINIER NAT. PARK CO. V. MARTIN, 302 U.S. 661; CF. BALTIMORE
NAT. BANK V. STATE TAX COMM'N, 297 U.S. 209. 

FN30  "SEC.  2.  THE TRANSPORTATION OR IMPORTATION INTO ANY STATE,
TERRITORY, OR POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE
THEREIN OF INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS
HEREBY PROHIBITED." 

FN31  "SEC.  49.  ALCOHOLIC BEVERAGES SHALL BE BROUGHT INTO THIS
STATE FROM WITHOUT THIS STATE FOR DELIVERY OR USE WITHIN THE STATE ONLY
WHEN SUCH ALCOHOLIC BEVERAGES ARE CONSIGNED TO A LICENSED IMPORTER AND
ONLY WHEN CONSIGNED TO THE PREMISES OF SUCH LICENSED IMPORTER OR TO THE
PREMISES OF A PUBLIC WAREHOUSE LICENSED UNDER THIS ACT.  ALCOHOLIC
BEVERAGES WHICH ARE CONSIGNED TO A DESTINATION WITHIN THIS STATE SHALL
BE PRESUMED TO BE FOR DELIVERY OR USE WITHIN THIS STATE.  ALCOHOLIC
BEVERAGES IMPORTED INTO THIS STATE CONTRARY TO THE PROVISIONS HEREOF
SHALL BE SEIZED BY THE BOARD.  EVERY PERSON VIOLATING THE PROVISIONS OF
THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR."  STATUTES 1937, CH.
758; OPERATIVE JULY 1, 1937. 

"SEC. 49.2.  COMMON OR PRIVATE CARRIERS TRANSPORTING ALCOHOLIC
BEVERAGES INTO THIS STATE FROM WITHOUT THE STATE FOR DELIVERY OR USE
WITHIN THIS STATE MUST OBTAIN THE RECEIPT OF THE LICENSED IMPORTER,
DISTILLED SPIRITS MANUFACTURER OR DISTILLED SPIRITS MANUFACTURER'S
AGENT FOR THE ALCOHOLIC BEVERAGES SO TRANSPORTED AND DELIVERED AND, IF
THE CONSIGNEE REFUSES TO GIVE SUCH RECEIPT AND SHOW HIS LICENSE TO THE
CARRIER, THE CARRIER SHALL BE RELIEVED OF ALL RESPONSIBILITY FOR
DELIVERING SAID ALCOHOLIC BEVERAGES.  WHERE THE CONSIGNEE IS NOT A
LICENSED IMPORTER, DISTILLED SPIRITS MANUFACTURER OR DISTILLED SPIRITS
MANUFACTURER'S AGENT OR WHERE THE CONSIGNEE REFUSES TO GIVE HIS RECEIPT
AND SHOW HIS LICENSE THE CARRIER SHALL IMMEDIATELY NOTIFY THE BOARD AT
SACRAMENTO GIVING FULL DETAILS AS TO THE CHARACTER OF SHIPMENT, POINT
OF ORIGIN, DESTINATION AND ADDRESS OF THE CONSIGNOR AND CONSIGNEE, AND
WITHIN TEN DAYS SUCH ALCOHOLIC BEVERAGES SHALL BE DELIVERED TO THE
BOARD AND SHALL BE FORFEITED TO THE STATE OF CALIFORNIA.  IF ANY
ALCOHOLIC BEVERAGES SEIZED UNDER THE PRECEDING SECTION OR FORFEITED
UNDER THIS SECTION ARE SOLD BY OR UNDER THE DIRECTION OF THE BOARD THE
COMMON CARRIER'S UNPAID FREIGHT AND STORAGE CHARGES ACCRUING ON THE
SHIPMENTS OF SUCH ALCOHOLIC BEVERAGES SHALL BE SATISFIED OUT OF THE
PROCEEDS OF ANY SALE MADE BY THE STATE AFTER DEDUCTING THE COST OF SUCH
SALE AND ANY EXCISE TAXES ACCRUING THEREON.  EVERY PERSON VIOLATING THE
PROVISIONS OF THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR."  STATUTES
1937, CH. 758; OPERATIVE JULY 1, 1937. 

FN32  THE CONCLUSIONS HAVE BEEN REITERATED IN MAHONEY V. JOSEPH
TRINER CORP., ANTE, P. 401. 

FN33  STANDARD OIL CO. V. CALIFORNIA, 291 U.S. 242. 

FN34  COMPARE WESTERN UNION TELEGRAPH CO. V. CHILES, 214 U.S. 274;
YELLOWSTONE PARK TRANSPORTATION CO. V. GALLATIN COUNTY, 31 F.2D 644. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE DECREE BELOW SHOULD BE
REVERSED BECAUSE AS STATED BY COUNSEL FOR APPELLANTS, "THE ACTS OF
CESSION AND ACCEPTANCE RESERVED TO THE STATE THE RIGHT TO LEVY UPON AND
COLLECT FROM THE APPELLEE COMPANY THE TYPE OF TAX IMPOSED BY THE
ALCOHOLIC BEVERAGE CONTROL ACT."  ALSO, THAT DISCUSSION SHOULD BE
CONFINED TO THAT POINT. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
























FED. POWER COMM'N V. EDISON CO., 304 U.S. 375 


NO. 915.  ARGUED MAY 2, 1938.  - DECIDED MAY 23, 1938.  - 94 F.2D 943,
945, REVERSED. 


1.  AN ORDER OF THE FEDERAL POWER COMMISSION IS NOT REVIEWABLE IN THE
CIRCUIT COURT OF APPEALS UNDER SEC. 313 OF THE FEDERAL POWER ACT, AS
AMENDED, UNLESS THERE HAS BEEN AN APPLICATION TO THE COMMISSION FOR A
REHEARING.  REVIEW DOES NOT EXTEND TO AN ORDER GRANTING A REHEARING. 
P. 381. 

2.  SECTION 313(A)(B) OF THE FEDERAL POWER ACT DOES NOT EMPOWER THE
CIRCUIT COURT OF APPEALS TO REVIEW ORDERS OF THE POWER COMMISSION WHICH
ARE PRELIMINARY OR PROCEDURAL, BUT RELATES TO ORDERS OF A DEFINITIVE
CHARACTER DEALING WITH THE MERITS OF A PROCEEDING BEFORE THE COMMISSION
AND RESULTING FROM A HEARING UPON EVIDENCE AND SUPPORTED BY FINDINGS
APPROPRIATE TO THE CASE.  P. 383. 

3.  WHERE THE ONLY ORDERS MADE BY THE FEDERAL POWER COMMISSION WERE,
FIRST, AN ORDER FIXING A HEARING AND REQUIRING THE RESPONDENT
CORPORATIONS TO APPEAR AND PRODUCE CERTAIN INFORMATION AND DOCUMENTS,
AND, SECOND, AN ORDER PURPORTING TO GRANT A REHEARING OF THE FIRST, THE
CIRCUIT COURT OF APPEALS HAD NO APPELLATE JURISDICTION TO RESTRAIN
PROCEEDINGS UNDER THE ORIGINAL ORDER UNTIL THE QUESTIONS RAISED BY THE
PETITION FOR REHEARING WERE DETERMINED OR TO DEFINE THE SCOPE OF THE
REHEARING AND OF EVIDENCE TO BE THERE CONSIDERED.  PP. 385, 387. 

4.  JUDICIAL CODE SEC. 262, WHICH PROVIDES THAT THE FEDERAL COURTS
SHALL HAVE POWER "TO ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED FOR BY
STATUTE, WHICH MAY BE NECESSARY FOR THE EXERCISE OF THEIR RESPECTIVE
JURISDICTIONS, AND AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW," HELD
INAPPLICABLE.  PP. 383, 387. 

5.  THE FEDERAL POWER ACT CONFERS NO AUTHORITY UPON THE COMMISSION TO
ENFORCE ITS DIRECTIONS TO APPEAR, TESTIFY OR PRODUCE BOOKS AND PAPERS
SAVE BY APPLICATION TO A FEDERAL COURT UNDER SEC. 307(C), AND
PUNISHMENT FOR CONTEMPT IS CONFINED TO FAILURE TO OBEY THE ORDER OF THE
COURT.  P. 386. 

6.  UPON SUCH APPLICATION BY THE COMMISSION, RESPONDENTS HAVE FULL
OPPORTUNITY TO CONTEST THE VALIDITY OF THE ORDER SOUGHT TO BE
ENFORCED.  ID. 

7.  ONE WHO REFUSES TO ATTEND AND TESTIFY, OR PRODUCE BOOKS AND
PAPERS, IN OBEDIENCE TO A SUBPOENA OF THE COMMISSION IS NOT PUNISHABLE
UNDER SEC. 307(C) OF THE ACT, IF THE REFUSAL IS NOT WILFUL BUT MADE IN
GOOD FAITH AND UPON GROUNDS WHICH ENTITLE HIM TO THE JUDGMENT OF THE
COURT BEFORE OBEDIENCE IS COMPELLED.  P. 387. 

FEDERAL POWER COMMISSION V. METROPOLITAN EDISON CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 553, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS RESTRAINING THE FEDERAL POWER COMMISSION FROM PROCEEDING
WITH AN INQUIRY AND INVESTIGATION UNTIL QUESTIONS RAISED BY A PETITION
FOR REHEARING HAD BEEN DETERMINED BY IT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

ON JANUARY 6, 1936, THE FEDERAL POWER COMMISSION INSTITUTED AN
INVESTIGATION TO DETERMINE THE "CONDITIONS, PRACTICES, AND MATTERS
REGARDING THE OWNERSHIP, OPERATION, MANAGEMENT, AND CONTROL" OF THE
RESPONDENT CORPORATIONS.  THE ORDER DIRECTED RESPONDENTS TO FILE WITH
THE COMMISSION COPIES OF CONTRACTS AND STATEMENTS OF WORKING
ARRANGEMENTS BETWEEN RESPONDENTS AND PERSONS CONTROLLING THEM, AND
STATEMENTS OF CHARGES ON RESPONDENTS' BOOKS FOR 1934 AND 1935
REPRESENTING PAYMENTS MADE AND OBLIGATIONS INCURRED TO SUCH PERSONS. 
RESPONDENTS WERE ALSO DIRECTED TO MAKE THEIR BOOKS, RECORDS, ETC.,
AVAILABLE FOR EXAMINATION BY THE COMMISSION'S REPRESENTATIVES.  THE
INVESTIGATION WAS INSTITUTED ON REPRESENTATIONS OF THE GOVERNOR AND
PUBLIC SERVICE COMMISSION OF PENNSYLVANIA. 

RESPONDENTS CHALLENGED THE JURISDICTION OF THE COMMISSION TO MAKE THE
ORDER, AND, RESERVING THEIR RIGHT TO QUESTION ITS LEGALITY, THEY
FURNISHED VARIOUS DATA AND INFORMATION.  FOLLOWING AN EXAMINATION OF
THE BOOKS AND RECORDS OF RESPONDENTS, THE COMMISSION'S EXAMINERS
SUBMITTED A REPORT ON DECEMBER 10, 1936. 

THEREUPON THE COMMISSION, ON JANUARY 26, 1937, MADE AN ORDER
PROVIDING THAT A HEARING SHOULD BE HELD ON MARCH 3, 1937.  THE ORDER
RECITED THAT THE RESPONDENTS HAD REPORTED CHARGES APPEARING UPON THEIR
BOOKS WHICH REPRESENTED PAYMENTS MADE AND OBLIGATIONS INCURRED TO NAMED
PERSONS AS (A) "CONCEDED AFFILIATES" AND (B) "NOT CONCEDED AFFILIATES,"
RESPECTIVELY; THAT THE EXAMINATION OF THE BOOKS AND RECORDS OF
RESPONDENTS AND OF ADMITTED AFFILIATES DISCLOSED TRANSACTIONS BETWEEN
RESPONDENTS AND ADDITIONAL NAMED PERSONS, AND THAT THE ACCOUNTING
REPRESENTATIVES OF THE COMMISSION HAD SUBMITTED A REPORT INDICATING
THAT CERTAIN NAMED PERSONS "CONTROL RESPONDENTS, OR ARE CONTROLLED BY
THE SAME PERSONS WHICH CONTROL RESPONDENTS."  THE ORDER THEN DIRECTED
RESPONDENTS TO APPEAR AT THE HEARING, AS STATED, AND TO PRESENT
INFORMATION BEARING UPON THE QUESTION OF CONTROL AND SPECIFICALLY
SHOWING (1) THEIR FORM OF ORGANIZATION, RESPECTIVELY, (2) THEIR
ARTICLES OF INCORPORATION, PARTNERSHIP AGREEMENTS OR OTHER DOCUMENTS OF
ORGANIZATION, (3) THE NAMES AND ADDRESSES OF PARTNERS, DIRECTORS,
OFFICERS, TRUSTEES AND AGENTS, (4) THE OWNERSHIP HELD BY SUCH PERSONS
"IN OR OVER ANY OTHER PERSON NAMED ABOVE," AS WELL AS THE MANNER BY
WHICH SUCH OWNERSHIP WAS MAINTAINED, AND (5) SUCH OTHER DATA AS MIGHT
FROM TIME TO TIME BE REQUIRED BY THE COMMISSION.  THE ORDER FURTHER
DIRECTED THAT A COPY OF THE REPORT PREPARED BY THE ACCOUNTING
REPRESENTATIVES OF THE COMMISSION SHOULD BE SERVED ON EACH PERSON
NAMED, AND THE COMMISSION GAVE NOTICE THAT THE HEARING WOULD BE HAD BY
THE COMMISSION SITTING JOINTLY WITH THE PUBLIC SERVICE COMMISSION OF
PENNSYLVANIA.  SEE FEDERAL POWER ACT, SEC. 209(B), 49 STAT. 853. 

RESPONDENTS THEN FILED WITH THE COMMISSION A PETITION FOR REHEARING
AS TO THE ORDER OF JANUARY 26, 1937, ASKING FOR THE VACATING OF THAT
ORDER AND THE TERMINATION OF THE PROCEEDING INITIATED BY THE ORDER OF
JANUARY 6, 1936.  RESPONDENTS CONTENDED THAT THE COMMISSION LACKED
JURISDICTION TO CONDUCT AN INVESTIGATION CONCERNING THE PROPRIETY OF
CONTRACTS AND WORKING ARRANGEMENTS BETWEEN RESPONDENTS AND THIRD
PERSONS, AND, IN PARTICULAR, (1) THAT THE COMMISSION WAS WITHOUT POWER
TO INVESTIGATE FOR THE PURPOSE OF SUPPLYING INFORMATION TO A STATE
COMMISSION FOR USE IN LOCAL PROCEEDINGS FOR VIOLATIONS OF LOCAL LAW,
AND, (2) THAT AS TO THREE OF THE RESPONDENTS THE COMMISSION WAS WITHOUT
JURISDICTION OF THEIR PERSONS BECAUSE THEY WERE NOT "PUBLIC UTILITIES"
AS DEFINED IN THE FEDERAL POWER ACT. 

THE COMMISSION THEREUPON ADJOURNED WITHOUT DAY THE HEARING DIRECTED
BY THE ORDER OF JANUARY 26, 1937.  LATER, THE COMMISSION GRANTED THE
PETITION FOR REHEARING AND ASSIGNED "THE MATTERS INVOLVED" FOR HEARING
ON APRIL 14, 1937.  RESPONDENTS THEN APPEARED AND INTRODUCED EVIDENCE
TENDING TO SUPPORT THEIR OBJECTIONS TO THE COMMISSION'S JURISDICTION. 
THE COMMISSION'S COUNSEL THEN INTRODUCED EVIDENCE ON ITS BEHALF. 
RESPONDENTS OBJECTED TO ITS ADMISSIBILITY UPON THE GROUND THAT IT WAS
IMMATERIAL TO THE ISSUES PRESENTED BY THE PETITION FOR REHEARING. 
THEIR OBJECTION WAS OVERRULED AND RESPONDENTS THEN ASKED THE EXAMINER
TO CERTIFY TO THE COMMISSION THE REQUEST TO DEFINE THE ISSUES TO BE
DETERMINED ON THE PETITION FOR REHEARING AND TO INSTRUCT ITS
REPRESENTATIVES THAT NO EVIDENCE IN FURTHERANCE OF THE ORDERS OF
JANUARY 6, 1936, AND JANUARY 26, 1937, BE INTRODUCED.  THE EXAMINER
REFUSED AND RESPONDENTS THEN PRESENTED A LIKE REQUEST TO THE
COMMISSION, WHICH WAS DENIED ON APRIL 20, 1937, FOR THE REASON THAT ITS
RULES OF PRACTICE DID NOT PROVIDE FOR THAT METHOD "OF INTERIM REVIEW OF
THE EXAMINER'S RULINGS."  UPON REMAND TO THE EXAMINER, HE AGAIN RULED
AGAINST RESPONDENTS, STATING THAT THEIR RIGHTS COULD "BE AMPLY
PROTECTED BY THE USUAL METHOD OF EXCEPTIONS" AND ARGUMENT THEREON. 

RESPONDENTS THEN PRESENTED, ON APRIL 21, 1937, TO THE CIRCUIT COURT
OF APPEALS A PETITION ASKING FOR A RULE TO SHOW CAUSE WHY THE
COMMISSION SHOULD NOT BE RESTRAINED FROM TAKING ANY STEPS IN
FURTHERANCE OF THE INQUIRY UNDER THE ORDERS OF JANUARY 6, 1936, OR OF
JANUARY 26, 1937, UNTIL THE PETITION FOR REHEARING HAD BEEN DISPOSED
OF, AND FROM INTRODUCING ANY EVIDENCE EXCEPT THAT WHICH WAS RELEVANT TO
THE QUESTIONS RAISED BY THE PETITION FOR REHEARING.  THE CIRCUIT COURT
OF APPEALS, ON JULY 6, 1937, ISSUED THE RULE TO SHOW CAUSE, AS PRAYED,
RETURNABLE ON OCTOBER 4, 1937, AND ON SEPTEMBER 7, 1937, GRANTED A
TEMPORARY STAY.  THE COMMISSION MADE ITS RETURN TO THE RULE AND ASKED
FOR A DISMISSAL OF THE PETITION.  THE CIRCUIT COURT OF APPEALS RENDERED
ITS DECISION ON JANUARY 27, 1938.  ITS DECREE REMANDED THE CASE TO THE
COMMISSION "FOR DETERMINATION IN ACCORDANCE WITH THE OPINION" OF THE
COURT, AND RESTRAINED THE COMMISSION "FROM PROCEEDING WITH ITS PROPOSED
INQUIRY AND INVESTIGATION IN ACCORDANCE WITH ITS TWO ORDERS OF JANUARY
6, 1936, AND JANUARY 26, 1937, UNTIL THE QUESTIONS RAISED IN THE
PETITION FOR REHEARING ARE DETERMINED BY IT." 

IN ITS OPINION THE COURT STATED THAT THE ONLY ISSUES OF FACT RAISED
BY THE PETITION FOR REHEARING AND THE EVIDENCE OF THE RESPONDENTS WERE
THAT THREE OF THE RESPONDENTS WERE NOT "PUBLIC UTILITIES" AS DEFINED BY
THE FEDERAL POWER ACT AND THAT THE PURPOSE OF THE INVESTIGATION WAS TO
SUPPLY INFORMATION TO THE PENNSYLVANIA COMMISSION FOR USE IN LOCAL
PROCEEDINGS DESIGNED TO IMPOSE PENALTIES UNDER THE STATE LAW.  94 F.2D
943, 945.  THE COURT SAID (ID., P. 946): 

"COMING TO THE MERITS OF THE CASE, WHEN THE PETITION WAS FILED AND
GRANTED IT WAS THE PLAIN DUTY OF THE FEDERAL COMMISSION TO DETERMINE
THE ISSUES RAISED IN THE PETITION.  WE ARE GOING TO REMAND THE CASE FOR
SUCH DETERMINATION.  IN DOING SO THE EVIDENCE ADMITTED SHOULD BE
STRICTLY CONFINED TO THE TWO ISSUES RAISED IN THE PETITION AND NOT
EXTENDED TO THE SCOPE OF THE INVESTIGATION PROPOSED IN THE ORDERS OF
JANUARY 6, 1936, AND JANUARY 26, 1937.  THE RELATION OF THE EVIDENCE TO
THE TWO QUESTIONS INVOLVED SHOULD BE APPARENT AND LOGICAL AND NOT FAR
FETCHED AND REMOTELY INFERENTIAL.  SOME OF THE EVIDENCE ADMITTED WHEN
THE CASE WAS BEFORE THE FEDERAL COMMISSION ON REHEARING WAS NOT
RELEVANT AND MATERIAL.  IF BOTH SIDES WILL SEEK TO PRODUCE ONLY SUCH
EVIDENCE AS IS CLEARLY ADMISSIBLE, WE VENTURE TO HOPE THAT THE
DETERMINATION OF THE ISSUES WILL BE SPEEDY, FINAL AND SATISFACTORY. 

"IN REMANDING THE CASE WE EXPRESS NO OPINION ON THE MERITS OF THE
QUESTIONS TO BE DECIDED.  THE DETERMINATION OF THEM IS FOR THE FEDERAL
COMMISSION UNDER RELEVANT AND COMPETENT EVIDENCE.  THE ACT HAS PROVIDED
A REVIEW BY THIS COURT OF THE ORDERS OF THE FEDERAL COMMISSION AND NO
ORDER ON THE MERITS IS NOW BEFORE US.  THESE PROCEEDINGS WERE TAKEN SO
THAT THE QUESTIONS WOULD NOT BE MOOT IF AND WHEN THEY COME HERE." 

THIS COURT GRANTED CERTIORARI AND THE CAUSE HAS BEEN ARGUED.  WE ARE
OF THE OPINION THAT THE CIRCUIT COURT OF APPEALS HAD NO JURISDICTION TO
ENTER THE DECREE. 

FIRST.  THERE WAS NO ORDER OF THE COMMISSION BEFORE THE CIRCUIT COURT
OF APPEALS FOR REVIEW.  APART FROM THE QUESTION WHETHER THE ORDER OF
JANUARY 6, 1936, OR THAT OF JANUARY 26, 1937, CAN BE REGARDED AS
REVIEWABLE, NO APPLICATION FOR SUCH A REVIEW HAD BEEN MADE. 

THE PROVISION CONFERRING APPELLATE JURISDICTION ON THE CIRCUIT COURT
OF APPEALS IN RELATION TO ORDERS OF THE FEDERAL POWER COMMISSION IS
FOUND IN SEC. 313 OF THE FEDERAL POWER ACT, AS AMENDED BY THE ACT OF
AUGUST 26, 1935, C. 687, 49 STAT. 860, 861.  FN1  SECTION 313(A)
PROVIDES THAT ANY PERSON AGGRIEVED BY AN ORDER OF THE COMMISSION MAY
APPLY FOR A REHEARING WITHIN THIRTY DAYS AFTER ITS ISSUANCE AND THAT NO
PROCEEDING TO REVIEW ANY ORDER OF THE COMMISSION SHALL BE BROUGHT
UNLESS THERE HAS BEEN AN APPLICATION FOR A REHEARING THEREON. 

RESPONDENTS SAY THAT UNDER THIS PROVISION THEY COULD NOT ASK REVIEW
OF THE ORDER OF JANUARY 26, 1937, UNTIL THEY HAD SOUGHT A REHEARING. 
THEY DID SEEK A REHEARING AND IT WAS GRANTED.  NO APPEAL FROM THE ORDER
GRANTING IT WOULD LIE AND NONE WAS ATTEMPTED.  RESPONDENTS DO NOT
CONTEND THAT THERE WAS ANY APPEAL FROM AN ORDER, OR ANY APPLICATION FOR
A REVIEW OF AN ORDER, PENDING BEFORE THE CIRCUIT COURT OF APPEALS.  ON
THE CONTRARY, RESPONDENTS SAY THAT THE COMMISSION "HAS NEVER PASSED
UPON THE OBJECTIONS RAISED IN RESPONDENTS' PETITION FOR REHEARING WITH
RESPECT TO THE ORDER OF JANUARY 26, 1937"; THAT "CONCEDEDLY, THE MINUTE
OF THE COMMISSION GRANTING A REHEARING DID NOT PURPORT TO DECIDE THE
OBJECTIONS RAISED IN THE PETITION FOR REHEARING"; AND THAT "UNTIL THE
COMMISSION HAS MADE AN ORDER DETERMINING THOSE OBJECTIONS, RESPONDENTS
WILL NOT BE IN A POSITION TO PERFECT AN APPEAL TO THE CIRCUIT COURT OF
APPEALS SHOULD THE COMMISSION'S DETERMINATION MAKE THAT NECESSARY." 

SECOND.  RESPONDENTS SEEK TO SUSTAIN THE ACTION OF THE CIRCUIT COURT
OF APPEALS BY VIRTUE OF THE AUTHORITY CONFERRED BY SEC. 262 OF THE
JUDICIAL CODE WHICH PROVIDES THAT THE FEDERAL COURTS SHALL HAVE POWER
"TO ISSUE ALL WRITS NOT SPECIFICALLY PROVIDED FOR BY STATUTE, WHICH MAY
BE NECESSARY FOR THE EXERCISE OF THEIR RESPECTIVE JURISDICTIONS, AND
AGREEABLE TO THE USAGES AND PRINCIPLES OF LAW."  THE ARGUMENT IS THAT
THE CIRCUIT COURT OF APPEALS COULD INTERVENE TO PROTECT ITS PROSPECTIVE
APPELLATE JURISDICTION.  WE ARE OF THE OPINION THAT THIS CONTENTION IS
UNSOUND AND THAT THE CIRCUIT COURT OF APPEALS IN THE CIRCUMSTANCES
DISCLOSED HAD NO APPELLATE JURISDICTION TO PROTECT. 

THE ARGUMENT PROCEEDS ON THE VIEW THAT THE ORDER OF JANUARY 26, 1937,
DESPITE ITS PRELIMINARY CHARACTER, WAS A REVIEWABLE ORDER SUBJECT ONLY
TO THE REQUIREMENT THAT AN APPLICATION FOR REHEARING SHOULD FIRST BE
MADE.  RELIANCE IS PLACED ON SEC. 313(B) OF THE FEDERAL POWER ACT THAT
"ANY PARTY TO A PROCEEDING UNDER THIS ACT AGGRIEVED BY AN ORDER ISSUED
BY THE COMMISSION IN SUCH PROCEEDING MAY OBTAIN A REVIEW OF SUCH ORDER
IN THE CIRCUIT COURT OF APPEALS."  BUT NEITHER THIS LANGUAGE, NOR THAT
OF SEC. 313(A), SHOULD BE CONSTRUED AS AUTHORIZING A REVIEW OF EVERY
ORDER THAT THE COMMISSION MAY MAKE, ALBEIT OF A MERELY PROCEDURAL
CHARACTER.  SUCH A CONSTRUCTION, AFFORDING OPPORTUNITY FOR CONSTANT
DELAYS IN THE COURSE OF THE ADMINISTRATIVE PROCEEDING FOR THE PURPOSE
OF REVIEWING MERE PROCEDURAL REQUIREMENTS OR INTERLOCUTORY DIRECTIONS,
WOULD DO VIOLENCE TO THE MANIFEST PURPOSE OF THE PROVISION. 

THE CONTEXT IN SEC. 313(B) INDICATES THE NATURE OF THE ORDERS WHICH
ARE SUBJECT TO REVIEW.  UPON SERVICE OF THE PETITION FOR REVIEW, THE
COMMISSION IS TO CERTIFY AND FILE WITH THE APPELLATE COURT "A
TRANSCRIPT OF THE RECORD UPON WHICH THE ORDER COMPLAINED OF WAS
ENTERED."  THE STATUTE CONTEMPLATES A CASE IN WHICH THE COMMISSION HAS
TAKEN EVIDENCE AND MADE FINDINGS.  ITS FINDINGS, IF SUPPORTED BY
EVIDENCE, ARE TO BE CONCLUSIVE.  THE APPELLATE COURT MAY ORDER
ADDITIONAL EVIDENCE TO BE TAKEN BY THE COMMISSION AND THE COMMISSION
MAY THEREUPON MAKE MODIFIED OR NEW FINDINGS.  THE PROVISION FOR REVIEW
THUS RELATES TO ORDERS OF A DEFINITIVE CHARACTER DEALING WITH THE
MERITS OF A PROCEEDING BEFORE THE COMMISSION AND RESULTING FROM A
HEARING UPON EVIDENCE AND SUPPORTED BY FINDINGS APPROPRIATE TO THE
CASE. 

THERE ARE PERSUASIVE ANALOGIES IN THE CONSTRUCTION OF PROVISIONS FOR
THE REVIEW OF THE ORDERS OF OTHER ADMINISTRATIVE BODIES.  THE URGENT
DEFICIENCIES ACT OF OCTOBER 22, 1913, FN2  PROVIDES FOR CASES BROUGHT
TO ENJOIN, SET ASIDE, OR SUSPEND "ANY ORDER" OF THE INTERSTATE COMMERCE
COMMISSION.  BUT THIS COURT HAS HELD THAT "THERE ARE MANY ORDERS OF THE
COMMISSION WHICH ARE NOT JUDICIALLY REVIEWABLE UNDER THIS PROVISION." 
SEE UNITED STATES V. LOS ANGELES & SALT LAKE R. CO., 273 U.S. 299, 309,
AND CASES CITED.  IN UNITED STATES V. ILLINOIS CENTRAL R. CO., 244 U.S.
82, THE INTERSTATE COMMERCE COMMISSION HAD MADE AN ORDER FOR A HEARING
UPON AN ISSUE OF REPARATION.  THE RAILROAD COMPANY CONTENDED THAT THE
COMMISSION HAD NO JURISDICTION TO AWARD DAMAGES IN THE CASE PRESENTED. 
A DECREE OF THE DISTRICT COURT, ENJOINING THE COMMISSION FROM
PROCEEDING WITH THE HEARING WAS REVERSED BY THIS COURT WITH DIRECTIONS
TO DISMISS THE PETITION.  THE "ORDER" WAS NOT OF THE SORT WHICH BROUGHT
IT WITHIN THE PURVIEW OF THE STATUTE.  IT WAS A MERE STEP IN
PROCEDURE.  SEE, ALSO, NEW YORK, O. & W. RY. CO. V. UNITED STATES, 14
F.2D 850, AFFIRMED 273 U.S. 652.  NEGATIVE ORDERS OF THE COMMISSION ARE
NOT REVIEWABLE.  PROCTER & GAMBLE CO. V. UNITED STATES, 225 U.S. 282;
LEHIGH VALLEY R. CO. V. UNITED STATES, 243 U.S. 412, 414.  A FINAL
REPORT BY THE COMMISSION ON VALUE UNDER SEC. 19A OF THE INTERSTATE
COMMERCE ACT, THOUGH CALLED AN ORDER, IS NOT REVIEWABLE.  UNITED STATES
V. LOS ANGELES & SALT LAKE R. CO., SUPRA.  COMPARE UNITED STATES V.
ATLANTA, B. & C.R. CO., 282 U.S. 522, 527; GREAT NORTHERN RY. CO. V.
UNITED STATES, 277 U.S. 172, 181, 182; UNITED STATES V. GRIFFIN, 303
U.S. 226; SHANNAHAN V. UNITED STATES, 303 U.S. 596.  WITH RESPECT TO
OTHER REGULATORY BODIES, IT HAS BEEN HELD THAT MERE PRELIMINARY OR
PROCEDURAL ORDERS ARE NOT WITHIN THE STATUTES PROVIDING FOR REVIEW BY
THE CIRCUIT COURT OF APPEALS.  CHAMBER OF COMMERCE V. FEDERAL TRADE
COMM'N, 280 F. 45, 48; AMES BALDWIN WYOMING CO. V. NATIONAL LABOR
RELATIONS BOARD, 73 F.2D 489, 490; JONES V. SECURITIES & EXCHANGE
COMM'N, 79 F.2D 617, 619; 298 U.S. 1, 14.  SO, ATTEMPTS TO ENJOIN
ADMINISTRATIVE HEARINGS BECAUSE OF A SUPPOSED OR THREATENED INJURY, AND
THUS OBTAIN JUDICIAL RELIEF BEFORE THE PRESCRIBED ADMINISTRATIVE REMEDY
HAS BEEN EXHAUSTED, HAVE BEEN HELD TO BE AT WAR WITH THE LONG-SETTLED
RULE OF JUDICIAL ADMINISTRATION.  MYERS V. BETHLEHEM SHIPBUILDING
CORP., 303 U.S. 41.  SEE, ALSO, SECURITIES & EXCHANGE COMM'N V.
ANDREWS, 88 F.2D 441. 

THE COMMISSION'S ORDER OF JANUARY 26, 1937, (A) FIXED A DATE FOR
HEARING, (B) REQUIRED RESPONDENTS TO APPEAR, AND (C) REQUIRED THEM TO
PRODUCE THE INFORMATION AND DOCUMENTS DESCRIBED.  IN FIXING A DATE FOR
HEARING, THE ORDER WAS NOTHING MORE THAN A NOTICE.  UNITED STATES V.
ILLINOIS CENTRAL R. CO., SUPRA, P. 89.  THE STATUTE CONFERS NO
AUTHORITY UPON THE COMMISSION TO ENFORCE ITS DIRECTIONS TO APPEAR,
TESTIFY OR PRODUCE BOOKS AND PAPERS SAVE BY APPLICATION TO A FEDERAL
COURT UNDER SEC. 307(C).  FN3  UPON SUCH AN APPLICATION, THE COURT MAY
REQUIRE ATTENDANCE, TESTIMONY AND THE PRODUCTION OF BOOKS AND PAPERS
TOUCHING THE MATTER UNDER INVESTIGATION AND FAILURE TO OBEY SUCH AN
ORDER OF THE COURT MAY BE PUNISHED BY IT AS A CONTEMPT.  WE THINK THAT
THIS PROVISION EMBRACES ALL CASES OF ALLEGED "CONTUMACY" ON THE PART OF
ANY PERSON WHO IS REQUIRED TO ATTEND, GIVE TESTIMONY, OR PRODUCE
DOCUMENTS.  UPON SUCH AN APPLICATION BY THE COMMISSION FOR THE
ENFORCEMENT OF ITS ORDER, RESPONDENTS WOULD HAVE FULL OPPORTUNITY TO
CONTEST ITS VALIDITY.  SEE JONES V. SECURITIES & EXCHANGE COMM'N,
SUPRA.  IN THE INSTANT CASE NO SUCH APPLICATION BY THE COMMISSION HAS
BEEN MADE.  SECTION 307(C) ALSO PROVIDES THAT ANY PERSON WHO WILLFULLY
FAILS OR REFUSES TO ATTEND AND TESTIFY, OR PRODUCE BOOKS AND PAPERS, IN
OBEDIENCE TO THE SUBPOENA OF THE COMMISSION, SHALL BE GUILTY OF A
MISDEMEANOR AND BE SUBJECT TO FINE AND IMPRISONMENT.  THE QUALIFICATION
THAT THE REFUSAL MUST BE "WILLFUL" FULLY PROTECTS ONE WHOSE REFUSAL IS
MADE IN GOOD FAITH AND UPON GROUNDS WHICH ENTITLE HIM TO THE JUDGMENT
OF THE COURT BEFORE OBEDIENCE IS COMPELLED. 

THE COMMISSION'S ORDER OF JANUARY 26, 1937, LAY OUTSIDE ANY APPELLATE
JURISDICTION CONFERRED BY THE STATUTE UPON THE CIRCUIT COURT OF
APPEALS.  IN THAT VIEW, SEC. 262 OF THE JUDICIAL CODE GIVES NO SUPPORT
TO THE DECREE UNDER REVIEW AND ITS INJUNCTION AND INSTRUCTIONS TO THE
COMMISSION MUST BE REGARDED AS UNAUTHORIZED. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE CAUSE
IS REMANDED WITH DIRECTIONS TO DISMISS THE RESPONDENTS' PETITION. 
REVERSED. 

FN1  "SEC.  313.  (A)  ANY PERSON, STATE, MUNICIPALITY, OR STATE
COMMISSION AGGRIEVED BY AN ORDER ISSUED BY THE COMMISSION IN A
PROCEEDING UNDER THIS ACT TO WHICH SUCH PERSON, STATE, MUNICIPALITY, OR
STATE COMMISSION IS A PARTY MAY APPLY FOR A REHEARING WITHIN THIRTY
DAYS AFTER THE ISSUANCE OF SUCH ORDER.  THE APPLICATION FOR REHEARING
SHALL SET FORTH SPECIFICALLY THE GROUND OR GROUNDS UPON WHICH SUCH
APPLICATION IS BASED.  UPON SUCH APPLICATION THE COMMISSION SHALL HAVE
POWER TO GRANT OR DENY REHEARING OR TO ABROGATE OR MODIFY ITS ORDER
WITHOUT FURTHER HEARING.  UNLESS THE COMMISSION ACTS UPON THE
APPLICATION FOR REHEARING WITHIN THIRTY DAYS AFTER IT IS FILED, SUCH
APPLICATION MAY BE DEEMED TO HAVE BEEN DENIED.  NO PROCEEDING TO REVIEW
ANY ORDER OF THE COMMISSION SHALL BE BROUGHT BY ANY PERSON UNLESS SUCH
PERSON SHALL HAVE MADE APPLICATION TO THE COMMISSION FOR A REHEARING
THEREON. 

"(B)  ANY PARTY TO A PROCEEDING UNDER THIS ACT AGGRIEVED BY AN ORDER
ISSUED BY THE COMMISSION IN SUCH PROCEEDING MAY OBTAIN A REVIEW OF SUCH
ORDER IN THE CIRCUIT COURT OF APPEALS OF THE UNITED STATES FOR ANY
CIRCUIT WHEREIN THE LICENSEE OR PUBLIC UTILITY TO WHICH THE ORDER
RELATES IS LOCATED OR HAS ITS PRINCIPAL PLACE OF BUSINESS, OR IN THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, BY FILING
IN SUCH COURT, WITHIN SIXTY DAYS AFTER THE ORDER OF THE COMMISSION UPON
THE APPLICATION FOR REHEARING, A WRITTEN PETITION PRAYING THAT THE
ORDER OF THE COMMISSION BE MODIFIED OR SET ASIDE IN WHOLE OR IN PART. 
A COPY OF SUCH PETITION SHALL FORTHWITH BE SERVED UPON ANY MEMBER OF
THE COMMISSION AND THEREUPON THE COMMISSION SHALL CERTIFY AND FILE WITH
THE COURT A TRANSCRIPT OF THE RECORD UPON WHICH THE ORDER COMPLAINED OF
WAS ENTERED.  UPON THE FILING OF SUCH TRANSCRIPT SUCH COURT SHALL HAVE
EXCLUSIVE JURISDICTION TO AFFIRM, MODIFY, OR SET ASIDE SUCH ORDER IN
WHOLE OR IN PART.  NO OBJECTION TO THE ORDER OF THE COMMISSION SHALL BE
CONSIDERED BY THE COURT UNLESS SUCH OBJECTION SHALL HAVE BEEN URGED
BEFORE THE COMMISSION IN THE APPLICATION FOR REHEARING UNLESS THERE IS
REASONABLE GROUND FOR FAILURE SO TO DO.  THE FINDING OF THE COMMISSION
AS TO THE FACTS, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE
CONCLUSIVE.  IF ANY PARTY SHALL APPLY TO THE COURT FOR LEAVE TO ADDUCE
ADDITIONAL EVIDENCE, AND SHALL SHOW TO THE SATISFACTION OF THE COURT
THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR FAILURE TO ADDUCE SUCH EVIDENCE IN THE
PROCEEDINGS BEFORE THE COMMISSION, THE COURT MAY ORDER SUCH ADDITIONAL
EVIDENCE TO BE TAKEN BEFORE THE COMMISSION AND TO BE ADDUCED UPON THE
HEARING IN SUCH MANNER AND UPON SUCH TERMS AND CONDITIONS AS TO THE
COURT MAY SEEM PROPER.  THE COMMISSION MAY MODIFY ITS FINDINGS AS TO
THE FACTS BY REASON OF THE ADDITIONAL EVIDENCE SO TAKEN, AND IT SHALL
FILE WITH THE COURT SUCH MODIFIED OR NEW FINDINGS WHICH, IF SUPPORTED
BY SUBSTANTIAL EVIDENCE, SHALL BE CONCLUSIVE, AND ITS RECOMMENDATION,
IF ANY, FOR THE MODIFICATION OR SETTING ASIDE OF THE ORIGINAL ORDER. 
THE JUDGMENT AND DECREE OF THE COURT, AFFIRMING, MODIFYING, OR SETTING
ASIDE, IN WHOLE OR IN PART, ANY SUCH ORDER OF THE COMMISSION, SHALL BE
FINAL, SUBJECT TO REVIEW BY THE SUPREME COURT OF THE UNITED STATES UPON
CERTIORARI OR CERTIFICATION AS PROVIDED IN SECTIONS 239 AND 240 OF THE
JUDICIAL CODE, AS AMENDED (U.S.C., TITLE 28, SECS. 346 AND 347)." 

FN2  28 U.S.C. 47. 

FN3  SUBDIVISION (C) OF SEC. 307 OF THE FEDERAL POWER ACT IS AS
FOLLOWS: 

"(C)  IN CASE OF CONTUMACY BY, OR REFUSAL TO OBEY A SUBPENA ISSUED
TO, ANY PERSON, THE COMMISSION MAY INVOKE THE AID OF ANY COURT OF THE
UNITED STATES WITHIN THE JURISDICTION OF WHICH SUCH INVESTIGATION OR
PROCEEDING IS CARRIED ON, OR WHERE SUCH PERSON RESIDES OR CARRIES ON
BUSINESS, IN REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES AND
THE PRODUCTION OF BOOKS, PAPERS, CORRESPONDENCE, MEMORANDA, CONTRACTS,
AGREEMENTS, AND OTHER RECORDS.  SUCH COURT MAY ISSUE AN ORDER REQUIRING
SUCH PERSON TO APPEAR BEFORE THE COMMISSION OR MEMBER OR OFFICER
DESIGNATED BY THE COMMISSION, THERE TO PRODUCE RECORDS, IF SO ORDERED,
OR TO GIVE TESTIMONY TOUCHING THE MATTER UNDER INVESTIGATION OR IN
QUESTION; AND ANY FAILURE TO OBEY SUCH ORDER OF THE COURT MAY BE
PUNISHED BY SUCH COURT AS A CONTEMPT THEREOF.  ALL PROCESS IN ANY SUCH
CASE MAY BE SERVED IN THE JUDICIAL DISTRICT WHEREOF SUCH PERSON IS AN
INHABITANT OR WHEREVER HE MAY BE FOUND OR MAY BE DOING BUSINESS.  ANY
PERSON WHO WILLFULLY SHALL FAIL OR REFUSE TO ATTEND AND TESTIFY OR TO
ANSWER ANY LAWFUL INQUIRY OR TO PRODUCE BOOKS, PAPERS, CORRESPONDENCE,
MEMORANDA, CONTRACTS, AGREEMENTS, OR OTHER RECORDS, IF IN HIS OR ITS
POWER SO TO DO, IN OBEDIENCE TO THE SUBPENA OF THE COMMISSION, SHALL BE
GUILTY OF A MISDEMEANOR AND, UPON CONVICTION, SHALL BE SUBJECT TO A
FINE OF NOT MORE THAN $1,000 OR TO IMPRISONMENT FOR A TERM OF NOT MORE
THAN ONE YEAR, OR BOTH." 

MR. JUSTICE ROBERTS AND MR. JUSTICE CARDOZO TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE. 
..END :














OKLAHOMA V. COOK, 304 U.S. 387 


NO. - , ORIGINAL.  - DECIDED MAY 23, 1938.  - LEAVE TO FILE DENIED. 


THIS COURT CAN NOT TAKE ORIGINAL JURISDICTION OF A SUIT BY A STATE TO
ENFORCE THE STATUTORY LIABILITY OF A STOCKHOLDER OF A STATE BANK, IN
PROCESS OF LIQUIDATION THROUGH A STATE OFFICER, WHERE THE STATE,
ALTHOUGH VESTED BY ITS LAWS WITH LEGAL TITLE TO THE BANK'S ASSETS AND
TO THE CAUSE OF ACTION SUED ON, IS ACTING MERELY FOR THE BENEFIT OF THE
BANK'S CREDITORS AND DEPOSITORS.  PP. 392-396. 

OKLAHOMA EX REL. JOHNSON, BANK COMMISSIONER, V. COOK. 

UPON APPLICATION OF THE STATE FOR LEAVE TO BRING AN ORIGINAL ACTION,
AND RESPONSE OF THE PROPOSED DEFENDANT TO A RULE TO SHOW CAUSE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE STATE OF OKLAHOMA, UPON THE RELATION OF ITS BANK COMMISSIONER,
ASKS LEAVE TO BRING SUIT IN THIS COURT TO ENFORCE THE STATUTORY
LIABILITY OF A SHAREHOLDER OF A STATE BANK WHICH IS IN COURSE OF
LIQUIDATION. 

THE STATUTES OF OKLAHOMA PROVIDE THAT THE SHAREHOLDERS OF EVERY BANK
ORGANIZED UNDER THE STATE LAW "SHALL BE ADDITIONALLY LIABLE FOR THE
AMOUNT OF STOCK OWNED."  OKLA. STAT. 1931, SEC. 9130.  THE BANK
COMMISSIONER, WHEN SATISFIED OF THE INSOLVENCY OF A BANK, MAY TAKE
POSSESSION OF ITS ASSETS AND "PROCEED TO WIND UP ITS AFFAIRS AND
ENFORCE THE PERSONAL LIABILITY OF THE STOCKHOLDERS."  ID., SEC. 9172. 
THAT LIABILITY BECOMES DUE WHEN THE BANK COMMISSIONER TAKES POSSESSION
OF THE BANK AND HIS ORDER FINDING THE BANK TO BE INSOLVENT IS
CONCLUSIVE EVIDENCE OF THAT FACT.  ID., SEC. 9174.  THE BANK
COMMISSIONER IS AUTHORIZED TO "PROSECUTE ALL SUITS NECESSARY FOR THE
LIQUIDATION OF THE ASSETS OF THE INSOLVENT CORPORATIONS TAKEN OVER BY
HIM" AND SUCH SUITS ARE TO BROUGHT "IN THE NAME OF THE STATE OF
OKLAHOMA, ON THE RELATION OF THE BANK COMMISSIONER."  IF, AFTER
LIQUIDATION AND PAYMENT IN FULL OF DEPOSITORS AND CREDITORS, ANY ASSETS
REMAIN IN THE HANDS OF THE BANK COMMISSIONER, THEY REVERT TO THE
STOCKHOLDERS.  ID., SEC. 9173. 

THE STATUTES FURTHER PROVIDE THAT "THE STATE OF OKLAHOMA, ON THE
RELATION OF THE BANK COMMISSIONER, SHALL BE DEEMED TO BE THE OWNER OF
ALL OF THE ASSETS OF FAILED BANKS IN HIS HANDS FOR THE USE AND BENEFIT
OF THE DEPOSITORS AND CREDITORS OF SAID BANK."  ID., SEC. 9179.  NO
COSTS ARE REQUIRED TO BE PAID BY THE STATE IN ANY SUIT IN WHICH THE
STATE OF OKLAHOMA, ON THE RELATION OF THE BANK COMMISSIONER, IS A
PARTY, AND PREFERENCE IS DIRECTED TO BE GIVEN IN THE COURTS OF THE
STATE TO ALL MATTERS PENDING IN SUCH SUITS.  ID. 

THE PROPOSED COMPLAINT ALLEGES THAT IN MAY, 1931, THE BANK
COMMISSIONER TOOK POSSESSION OF THE OSAGE BANK OF FAIRFAX, OSAGE
COUNTY, FINDING IT TO BE INSOLVENT, AND PROCEEDED TO WIND UP ITS
AFFAIRS AND ENFORCE THE PERSONAL LIABILITY OF ITS STOCKHOLDERS; THAT
THE DEFENDANT, R.M. COOK, WAS THE OWNER OF SIXTY-NINE SHARES OF THE
CAPITAL STOCK OF THE BANK OF THE PAR VALUE OF $100, AND BECAME LIABLE
TO THE STATE OF OKLAHOMA, UPON THE RELATION OF ITS BANK COMMISSIONER,
IN THE SUM OF $6900, WITH INTEREST; THAT THE DEFENDANT HAS PAID THE SUM
OF $2300 IN PART SATISFACTION AND THAT THE BALANCE IS DUE; THAT THE
BANK COMMISSIONER HAS LIQUIDATED ALL THE ASSETS OF THE BANK EXCEPT THE
CLAIM HERE PRESENTED AND CERTAIN OTHER CLAIMS AGAINST OTHER
STOCKHOLDERS; THAT DIVIDENDS HAVE BEEN PAID TO DEPOSITORS AND CREDITORS
AMOUNTING TO NINETY-ONE PER CENT.  OF THEIR CLAIMS AND THAT THE
ENFORCEMENT OF THE STATUTORY LIABILITY OF THE DEFENDANT IS NECESSARY TO
DISCHARGE THE LIABILITIES OF THE BANK. 

IN ANSWER TO THE RULE TO SHOW CAUSE WHY LEAVE TO BRING THIS SUIT
SHOULD NOT BE GRANTED, THE PROPOSED DEFENDANT CONTENDS THAT THE CAUSE
OF ACTION IS NOT WITHIN ARTICLE III, SEC. 2, CLAUSE 2, OF THE
CONSTITUTION PROVIDING FOR THE ORIGINAL JURISDICTION OF THIS COURT. 

THE PURPOSE IN CREATING THE STOCKHOLDER'S LIABILITY, THE AUTHORITY
CONFERRED UPON THE BANK COMMISSIONER TO ENFORCE IT, AND THE RELATION OF
THE STATE TO ITS ENFORCEMENT, ARE CLEARLY SET FORTH IN THE DECISIONS OF
THE SUPREME COURT OF OKLAHOMA.  IN STATE EX REL. MOTHERSEAD V. KELLY,
141 OKLA. 36; 284 P. 65, THE COURT SAID: 

"WHAT IS THIS STOCKHOLDER'S LIABILITY AND FOR WHOSE BENEFIT IS IT
CREATED? 

"IT WAS DESIGNED SOLELY FOR THE BENEFIT OF CREDITORS AND CONSTITUTES
A FUND AVAILABLE ONLY WHEN THE BANK IS INSOLVENT AND THUS RENDERED
UNABLE TO MEET ITS LIABILITIES IN FULL.  THE CORPORATION ITSELF HAS NO
AUTHORITY OVER THE FUND AND CANNOT EITHER COMPEL ITS PAYMENT OR BY ANY
ACT ON ITS PART RELEASE THE STOCKHOLDER THEREFROM.  IT AMOUNTS, FOR ALL
PRACTICAL PURPOSES, TO A RESERVE OR TRUST FUND, TO BE RESORTED TO ONLY
IN PROCEEDINGS IN LIQUIDATION, WHEN NECESSARY TO MEET THE PAYMENT OF
OBLIGATIONS OF THE CORPORATION.  IT IS LIMITED TO AN AMOUNT EQUAL TO
THE PAR VALUE OF THE STOCK HELD AND OWNED BY EACH STOCKHOLDER AND
EXISTS IN FAVOR OF THE CREDITORS COLLECTIVELY, NOT SEPARATELY, AND IN
PROPORTION TO THE AMOUNT OF THEIR RESPECTIVE CLAIMS AGAINST THE
CORPORATION.  ...  "  (ID., PP. 37, 38; 284 P. 66.) 

THE COURT ADDED THAT "THE BANK COMMISSIONER ALONE IS EMPOWERED BY LAW
TO PROSECUTE AN ACTION TO ENFORCE THE STOCKHOLDERS' LIABILITY."  ID.,
P. 41; 284 P. 69.  SEE ALSO AMERICAN EXCHANGE BANK V. ROWSEY, 144 OKLA.
172, 173; 289 P. 726; GRIFFIN V. BREWER, 167 OKLA. 654, 655; 31 P.2D
619. 

IN STATE EX REL. MURRAY V. PURE OIL CO., 169 OKLA. 507; 37 P.2D 608,
REFERRING TO THE PROVISION OF THE STATUTE AUTHORIZING THE BANK
COMMISSIONER TO INSTITUTE ALL SUITS NECESSARY FOR THE LIQUIDATION OF
THE ASSETS OF THE INSOLVENT CORPORATIONS TAKEN OVER BY HIM AND
PROVIDING THAT SUCH SUITS SHALL BE BROUGHT IN THE NAME OF THE STATE, ON
THE RELATION OF THE BANK COMMISSIONER, THE COURT SAID: 

"SINCE THE STATE IS THE PROPER PARTY PLAINTIFF BY VIRTUE OF THE ABOVE
STATUTE, IT MAY MAINTAIN THE ACTION REGARDLESS OF WHETHER IT IS THE
REAL PARTY IN INTEREST OR MERELY A NOMINAL PLAINTIFF FOR THE USE AND
BENEFIT OF DEPOSITORS AND CREDITORS.  AN ACTION MAY BE MAINTAINED BY
ONE EXPRESSLY AUTHORIZED BY STATUTE EVEN THOUGH THAT PERSON IS NOT IN
FACT THE REAL PARTY IN INTEREST.  SECTION 144, O.S. 1931.  ... 

"THE PROTECTION OF DEPOSITORS OF INSOLVENT STATE BANKS IS A DISTINCT
ECONOMIC POLICY OF THE STATE.  ...  IN SO FAR AS THE OBJECT OF THIS
ACTION IS TO FURTHER THE ESTABLISHED ECONOMIC POLICY OF THE STATE, THE
STATE MAY BE SAID TO HAVE A REAL INTEREST CREATED BY ITS GOVERNMENTAL
POLICY, AS DISTINGUISHED FROM A MERE NOMINAL INTEREST, EVEN THOUGH THE
PECUNIARY BENEFITS OF THE LITIGATION, IF ULTIMATELY SUCCESSFUL, GO TO
THE DEPOSITORS AND CREDITORS OF THE INSOLVENT BANK. 

"THE STATUTE (SECTION 9173, SUPRA) WHICH AUTHORIZES THE STATE TO BE A
PARTY PLAINTIFF NAMES THE BANK COMMISSIONER AS THE PROPER OFFICER TO
INSTITUTE LEGAL ACTIONS AND CARRY OUT THIS ECONOMIC POLICY.  ... 

"THE NATURE OF THE POWERS VESTED BY LAW IN THE BANK COMMISSIONER HAVE
BEEN MANY TIMES CONSIDERED BY THIS COURT AND THEIR EXCLUSIVE CHARACTER
RECOGNIZED.  ... 

"IT WAS THE LEGISLATIVE INTENT THAT LITIGATION OF THIS CHARACTER
SHOULD BE INSTITUTED AND CONDUCTED UNDER THE DIRECT SUPERVISION OF THE
BANK COMMISSIONER THROUGH THE STAFF OF LEGAL ASSISTANTS PROVIDED BY LAW
FOR THAT PURPOSE, AND NOT BY THE GOVERNOR, NOR THROUGH INDEPENDENT
ACTION."  ID., PP. 509-512; 37 P.2D 610. 

AGAIN, IN RICHISON V. STATE EX REL. BARNETT, 176 OKLA. 537, 539; 56
P.2D 840, 843, THE COURT OBSERVED: 

"UNDER THE PROVISIONS OF ARTICLE 6, CHAPTER 40, O.S. 1931(SEC.  9168
ET SEQ.) THE STATE HAS ASSUMED EXCLUSIVE JURISDICTION AND CONTROL OF
THE AFFAIRS OF INSOLVENT BANKING INSTITUTIONS.  BY OPERATION OF LAW THE
BANK COMMISSIONER IS THE OFFICER THROUGH WHICH THE STATE LIQUIDATES THE
ASSETS AND WINDS UP THE AFFAIRS OF SUCH INSTITUTIONS.  WHILE ENGAGED IN
THE PERFORMANCE OF SUCH STATUTORY DUTIES AND FUNCTIONS THE BANK
COMMISSIONER IS PERFORMING DUTIES FOR THE BENEFIT OF CERTAIN MEMBERS OF
THE PUBLIC WHO WERE DEPOSITORS IN SUCH INSTITUTION." 

THE STATE COURT HAS ALSO HELD THAT THE STATUTE OF LIMITATIONS DOES NOT
RUN AGAINST THE STATE IN AN ACTION TO ENFORCE THE STATUTORY LIABILITY
OF THE STOCKHOLDERS.  STATE EX REL. SHULL V. MCLAUGHLIN, 159 OKLA. 4;
12 P.2D 1106.  AND THE SAME RULE APPLIES TO ACTIONS ON PROMISSORY NOTES
AND OTHER CLAIMS TAKEN OVER BY THE BANK COMMISSIONER AS ASSETS OF AN
INSOLVENT BANK.  WHITE V. STATE, 94 OKLA. 7; 220 P. 624; LEVER V. STATE
EX REL. SHULL, 157 OKLA. 162; 111 P.2D 498; RICHISON V. STATE EX REL.
BARNETT, SUPRA. 

MAY THE STATE THROUGH ITS BANK COMMISSIONER INVOKE OUR ORIGINAL
JURISDICTION TO PROSECUTE CLAIMS OF THIS CHARACTER FOR THE BENEFIT OF
CREDITORS? 

TO BRING A CASE WITHIN THAT JURISDICTION, IT IS NOT ENOUGH THAT A
STATE IS PLAINTIFF.  FLORIDA V. MELLON, 273 U.S. 12, 17.  NOR IS IT
ENOUGH THAT A STATE HAS ACQUIRED THE LEGAL TITLE TO A CAUSE OF ACTION
AGAINST THE DEFENDANT, WHERE THE RECOVERY IS SOUGHT FOR THE BENEFIT OF
ANOTHER WHO IS THE REAL PARTY IN INTEREST.  NEW HAMPSHIRE V. LOUISIANA,
NEW YORK V. LOUISIANA, 108 U.S. 76.  IN THOSE CASES, PROVISION WAS MADE
BY STATUTES OF NEW HAMPSHIRE AND NEW YORK FOR THE ASSIGNMENT TO THE
STATE OF THE OBLIGATIONS OF ANOTHER STATE.  THEREUPON IT BECAME THE
DUTY OF THE ATTORNEY GENERAL OF THE STATE, IF IN HIS OPINION THE CLAIM
WAS A VALID ONE, TO BRING SUIT IN THE NAME OF THE STATE IN THIS COURT
IN ORDER TO ENFORCE COLLECTION.  THE MONEY COLLECTED WAS TO BE HELD IN
TRUST, AS STATED, AND TO BE PAID OVER TO THE ASSIGNOR OF THE CLAIM. 
ID., PP. 77, 79.  THE STATES, RESPECTIVELY, ACQUIRED TITLE TO BONDS OF
THE STATE OF LOUISIANA AND FILED IN THIS COURT BILLS IN EQUITY IN THE
NAME OF THE STATE TO ENFORCE RECOVERY.  THE BILLS WERE DISMISSED.  THE
FACT THAT THE EFFORT WAS MADE TO USE THE NAME OF THE COMPLAINANT STATES
IN ORDER TO EVADE THE APPLICATION OF THE ELEVENTH AMENDMENT WAS
UNDOUBTEDLY A CONTROLLING CONSIDERATION, BUT THAT CONSIDERATION DERIVED
ITS FORCE FROM THE FACT THAT THE STATE WAS NOT SEEKING A RECOVERY IN
ITS OWN INTEREST, AS DISTINGUISHED FROM THE RIGHTS AND INTERESTS OF THE
INDIVIDUALS WHO WERE THE REAL BENEFICIARIES. 

THE UNDERLYING POINT OF THE DECISION WAS THAT IN DETERMINING THE
SCOPE OF OUR ORIGINAL JURISDICTION UNDER CLAUSE 2 OF SEC. 2 OF ARTICLE
III OF THE CONSTITUTION, WE MUST LOOK BEYOND THE MERE LEGAL TITLE OF
THE COMPLAINING STATE TO THE CAUSE OF ACTION ASSERTED AND TO THE NATURE
OF THE STATE'S INTEREST.  SO, WHEN IT APPEARED IN A LATER CASE THAT A
STATE, INVOKING THE ORIGINAL JURISDICTION OF THIS COURT TO ENFORCE THE
BONDS OF ANOTHER STATE, WAS THE ABSOLUTE OWNER OF THE BONDS AND WAS
PROSECUTING THE CLAIM UPON ITS OWN BEHALF, THIS COURT TOOK
JURISDICTION.  SOUTH DAKOTA V. NORTH CAROLINA, 192 U.S. 286.  THERE THE
COURT FOUND THAT, WHILE THE STATE OF SOUTH DAKOTA ACQUIRED BY GIFT THE
BONDS OF NORTH CAROLINA, THERE COULD NOT BE "ANY QUESTION RESPECTING
THE TITLE OF SOUTH DAKOTA."  THEY WERE NOT HELD, THE COURT SAID, BY THE
STATE AS REPRESENTATIVE OF INDVIDUAL OWNERS AS IN THE CASE OF NEW
HAMPSHIRE V. LOUISIANA, 108 U.S. 76, AND THE MOTIVE WHICH INDUCED THE
TRANSACTION WAS NOT DEEMED TO "AFFECT ITS VALIDITY OR THE QUESTION OF
JURISDICTION."  THE CASE WAS THUS ONE "DIRECTLY AFFECTING THE PROPERTY
RIGHTS AND INTERESTS OF A STATE."  ID., PP. 314, 318. 

IN DETERMINING WHETHER THE STATE IS ENTITLED TO AVAIL ITSELF OF THE
ORIGINAL JURISDICTION OF THIS COURT IN A MATTER THAT IS JUSTICIABLE
(SEE MASSACHUSETTS V. MELLON, 262 U.S. 447, 485), THE INTERESTS OF THE
STATE ARE NOT DEEMED TO BE CONFINED TO THOSE OF A STRICTLY PROPRIETARY
CHARACTER BUT EMBRACE ITS "QUASI-SOVEREIGN" INTERESTS WHICH ARE
"INDEPENDENT OF AND BEHIND THE TITLES OF ITS CITIZENS, IN ALL THE EARTH
AND AIR WITHIN ITS DOMAIN."  GEORGIA V. TENNESSEE COPPER CO., 206 U.S.
230, 237.  THUS, WE HAVE HELD THAT A STATE MAY SUE TO RESTRAIN THE
DIVERSION OF WATER FROM AN INTERSTATE STREAM, KANSAS V. COLORADO, 206
U.S. 46, 95, 96, OR AN INTERFERENCE WITH THE FLOW OF NATURAL GAS IN
INTERSTATE COMMERCE, PENNSLYVANIA V. WEST VIRGINIA, 262 U.S. 553, 592;
OR TO PREVENT INJURIES THROUGH THE POLLUTION OF STREAMS OR THE
POISONING OF THE AIR BY THE GENERATION OF NOXIOUS GASES DESTRUCTIVE OF
CROPS AND FORESTS, WHETHER THE INJURY BE DUE TO THE ACTION OF ANOTHER
STATE OR OF INDIVIDUALS, MISSOURI V. ILLINOIS, 180 U.S. 208, 200 U.S.
496; GEORGIA V. TENNESSEE COPPER CO., SUPRA; NORTH DAKOTA V. MINNESOTA,
263 U.S. 365, 373, 374; WISCONSIN V. ILLINOIS, 278 U.S. 367, 281 U.S.
179. 

BUT THIS PRINCIPLE DOES NOT GO SO FAR AS TO PERMIT RESORT TO OUR
ORIGINAL JURISDICTION IN THE NAME OF THE STATE BUT IN REALITY FOR THE
BENEFIT OF PARTICULAR INDIVIDUALS, ALBEIT THE STATE ASSERTS AN ECONOMIC
INTEREST IN THE CLAIMS AND DECLARES THEIR ENFORCEMENT TO BE A MATTER OF
STATE POLICY.  IN KANSAS V. UNITED STATES, 204 U.S. 331, THE STATE
ASKED LEAVE TO FILE A BILL OF COMPLAINT AGAINST THE UNITED STATES AND
OTHERS, SEEKING A DECREE ADJUDGING THE STATE TO BE THE OWNER, AS
TRUSTEE FOR A RAILWAY COMPANY, OF CERTAIN SECTIONS OF LAND TO THE
EXTENT OF A GRANT ALONG THE LINE OF THE RAILROAD THROUGH THE CREEK
NATION IN THE INDIAN TERRITORY.  THE COURT SAID THAT IT APPEARED UPON
THE FACE OF THE BILL THAT THE STATE WAS ONLY NOMINALLY A PARTY, THAT
THE REAL PARTY IN INTEREST WAS THE RAILROAD COMPANY, AND THAT OUR
ORIGINAL JURISDICTION "COULD NOT BE MAINTAINED."  ID., PP. 340, 341. 
THE COURT ALSO HELD THAT THE UNITED STATES WAS THE REAL PARTY IN
INTEREST AS DEFENDANT AND COULD NOT BE SUED WITHOUT ITS CONSENT, BUT
THE OTHER QUESTION WAS PRESENTED AND PASSED UPON. 

IN OKLAHOMA V. ATCHISON, T. & S.F. RY. CO., 220 U.S. 277, THE STATE
SOUGHT TO MAINTAIN AN ACTION IN THIS COURT AGAINST THE CARRIER TO
RESTRAIN IT FROM CHARGING UNREASONABLE RATES WITHIN OKLAHOMA.  SETTING
FORTH THE CONGRESSIONAL GRANT UNDER WHICH THE RAILWAY IN QUESTION WAS
OPERATED AND INSISTING THAT THE COMPANY WAS NOT ENTITLED TO CHARGE THE
INHABITANTS OF OKLAHOMA A GREATER FREIGHT RATE FOR THE TRANSPORTATION
OF CERTAIN COMMODITIES THAN THAT AUTHORIZED FOR SIMILAR SERVICE IN
KANSAS, THE STATE ALLEGED ITS INTEREST IN THE DEVELOPMENT OF ITS
COMMUNITIES AND IN THE SUCCESS OF ITS INDUSTRIES, AND THE MENACE TO THE
FUTURE OF THE STATE THROUGH WHAT WAS DEEMED TO BE A VIOLATION OF THE
CONDITIONS OF THE GRANT.  BUT THE COURT POINTED OUT THAT THE STATE WAS
NOT SEEKING TO PROTECT A DIRECT INTEREST OF ITS OWN IN THE
TRANSPORTATION OF THE COMMODITIES IN QUESTION, BUT WAS ENDEAVORING TO
COMPEL THE RAILWAY COMPANY TO RESPECT THE RIGHTS OF THE SHIPPERS OF
THESE COMMODITIES.  ID., PP. 286, 287.  THE BILL WAS DISMISSED.  THE
COURT SUMMARIZED ITS CONCLUSION IN THESE WORDS: 

"WE ARE OF THE OPINION THAT THE WORDS, IN THE CONSTITUTION,
CONFERRING ORIGINAL JURISDICTION ON THIS COURT, IN A SUIT 'IN WHICH A
STATE SHALL BE A PARTY' ARE NOT TO BE INTERPRETED AS CONFERRING SUCH
JURISDICTION IN EVERY CAUSE IN WHICH THE STATE ELECTS TO MAKE ITSELF
STRICTLY A PARTY PLAINTIFF OF RECORD AND SEEKS NOT TO PROTECT ITS OWN
PROPERTY, BUT ONLY TO VINDICATE THE WRONGS OF SOME OF ITS PEOPLE OR TO
ENFORCE ITS OWN LAWS OR PUBLIC POLICY AGAINST WRONGDOERS, GENERALLY." 
ID., P. 289. 

SEE, ALSO, LOUISIANA V. TEXAS, 176 U.S. 1. 

IN THE INSTANT CASE, THE STATE HAS TAKEN THE LEGAL TITLE TO THE
ASSETS OF THE INSOLVENT BANK WHICH IS BEING LIQUIDATED AND TO THE
CLAIMS AGAINST STOCKHOLDERS BY REASON OF THEIR STATUTORY LIABILITY. 
BUT RECOVERY IS SOUGHT SOLELY FOR THE BENEFIT OF THE DEPOSITORS AND
CREDITORS OF THE BANK.  STATE EX REL. MOTHERSEAD V. KELLY, SUPRA; STATE
EX REL. MURRAY V. PURE OIL CO., SUPRA; RICHISON V. STATE EX REL.
BARNETT, SUPRA.  CONSTITUTING THE STATE A VIRTUAL TRUSTEE FOR THE
BENEFIT OF THE CREDITORS OF THE BANK DID NOT ALTER THE ESSENTIAL
QUALITY OF THE RIGHTS ASSERTED OR AVAIL TO CONFER JURISDICTION UPON
THIS COURT TO ENTERTAIN A SUIT FOR THEIR ENFORCEMENT.  NEW HAMPSHIRE V.
LOUISIANA, NEW YORK V. LOUISIANA, SUPRA; KANSAS V. UNITED STATES,
SUPRA; OKLAHOMA V. ATCHISON, T. & S.F. RY. CO., SUPRA.  THE TAKING OF
THE LEGAL TITLE BY THE STATE IS A MERE EXPEDIENT FOR THE PURPOSE OF
COLLECTION. 

IT WILL BE NOTED THAT THE STATE NOT ONLY UNDERTAKES TO ENFORCE THE
STATUTORY LIABILITY OF STOCKHOLDERS BUT, AS THE STATE TAKES TITLE TO
ALL THE ASSETS OF THE INSOLVENT BANK, SUITS UPON PROMISSORY NOTES AND
VARIOUS CLAIMS OF THE BANK IN THE COURSE OF THE LIQUIDATION ARE TO BE
BROUGHT IN THE NAME OF THE STATE ACTING THROUGH ITS BANK COMMISSIONER. 
THE DECLARED POLICY AND ASSERTED ECONOMIC INTEREST OF THE STATE ATTACH
AS WELL TO THE PROSECUTION OF ALL SUCH SUITS.  IF THE CONTENTION OF THE
STATE WERE ACCEPTED, IT WOULD FOLLOW THAT SUITS UPON CLAIMS OF THE BANK
AGAINST CITIZENS OF OTHER STATES COULD BE BROUGHT IN THIS COURT.  MANY
STATES HAVE STATUTORY PROVISIONS FOR THE LIQUIDATION THROUGH STATE
OFFICERS OF INSOLVENT BANKS, TRUST COMPANIES, INSURANCE COMPANIES,
ETC., AND IF, BY THE SIMPLE EXPEDIENT OF PROVIDING THAT THE TITLE TO
THE ASSETS OF SUCH INSTITUTIONS SHOULD VEST IN THE STATE AND THAT SUITS
IN THE COURSE OF LIQUIDATION SHOULD BE PROSECUTED IN THE NAME OF THE
STATE, RESORT TO OUR ORIGINAL JURISDICTION WERE PERMITTED, THE ENORMOUS
BURDEN WHICH WOULD THEREBY BE IMPOSED UPON THIS COURT CAN READILY BE
IMAGINED,  - A BURDEN FOREIGN TO THE PURPOSE OF THE CONSTITUTIONAL
PROVISION.  THESE CONSIDERATIONS EMPHASIZE THE IMPORTANCE OF STRICT
ADHERENCE TO THE GOVERNING PRINCIPLE THAT THE STATE MUST SHOW A DIRECT
INTEREST OF ITS OWN AND NOT MERELY SEEK RECOVERY FOR THE BENEFIT OF
INDIVIDUALS WHO ARE THE REAL PARTIES IN INTEREST. 

THE MOTION FOR LEAVE TO FILE COMPLAINT IS DENIED.  MOTION DENIED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :











HUDSON V. MOONIER, 304 U.S. 397 


NO. 938.  - DECIDED MAY 23, 1938.  - CERTIORARI GRANTED - 94 F.2D 193,
REVERSED. 


THE LIABILITY OF THE LESSOR OF A TRUCK FOR PERSONAL INJURIES TO A
THIRD PARTY, IN ITS OPERATION, DUE TO LESSOR'S BREACH OF A DUTY TO
MAINTAIN IT IN SAFE CONDITION, DEPENDS UPON THE LEX LOCI DELICTI.  ERIE
RAILROAD V. TOMPKINS, ANTE, P. 64. 

HUDSON ET AL. V. MOONIER. 

PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE EIGHTH CIRCUIT. 

PETITION FOR CERTIORARI TO REVIEW A JUDGMENT AFFIRMING A RECOVERY IN
AN ACTION FOR PERSONAL INJURIES, WHICH HAD BEEN REMOVED FROM A STATE
COURT. 

PER CURIAM. 

RESPONDENT BROUGHT THIS SUIT TO RECOVER DAMAGES FOR PERSONAL INJURIES
ALLEGED TO BE DUE TO THE DEFENDANTS' NEGLIGENCE.  HE WAS STRUCK BY A
TRUCK WHICH WAS OPERATED WITHOUT PROPER EQUIPMENT, IN THAT IT HAD NO
HORN OR OTHER SIGNALING DEVICE.  HE SUED THE DRIVER AND ALSO THE PERSON
WHO HAD LEASED THE TRUCK TO THE DRIVER'S EMPLOYER UPON THE GROUND THAT
THE LESSOR WAS CHARGED WITH THE DUTY OF MAINTAINING THE TRUCK IN A
REASONABLY SAFE CONDITION. 

JUDGMENT AGAINST BOTH DEFENDANTS WAS AFFIRMED BY THE CIRCUIT COURT OF
APPEALS.  THE COURT TREATED THE QUESTION OF THE LIABILITY OF THE LESSOR
AS ONE OF GENERAL LAW.  THE COURT SHOULD HAVE APPLIED THE LAW OF
MISSOURI WHERE THE INJURY OCCURRED.  ERIE R. CO. V. TOMPKINS, ANTE, P.
64. 

CERTIORARI IS GRANTED, THE JUDGMENT IS REVERSED, AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :










LACLEDE GAS CO. V. COMM'N, 304 U.S. 398 


NO. 947.  - DECIDED MAY 23, 1938.  - APPEAL FROM 341 MO. 920 - 110
S.W.2D 749, DISMISSED. 


IN A CASE INVOLVING THE ADEQUACY OF RATES FIXED FOR A PUBLIC UTILITY,
A JUDGMENT OF A STATE COURT REMANDING THE MATTER TO THE RATE-FIXING
COMMISSION FOR A REEXAMINATION WHICH MAY RESULT IN A NEW BASIS OF FAIR
VALUE AND A NEW SCHEDULE OF RATES, IS NOT FINAL FOR PURPOSES OF REVIEW
HERE. 

LACLEDE GAS LIGHT CO. V. PUBLIC SERVICE COMMISSION ET AL. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

PER CURIAM. 

APPELLEE, THE PUBLIC SERVICE COMMISSION OF MISSOURI, MOVES TO DISMISS
THE APPEAL UPON THE GROUND THAT THERE IS NO FINAL JUDGMENT. 

THE SUPREME COURT OF MISSOURI HAD BEFORE IT AN APPEAL FROM A JUDGMENT
OF THE CIRCUIT COURT WHICH HAD AFFIRMED AN ORDER OF THE PUBLIC SERVICE
COMMISSION FIXING THE VALUE FOR RATE MAKING PURPOSES OF THE PROPERTY OF
THE LACLEDE GAS LIGHT COMPANY AND ORDERING A REDUCTION IN RATES.  THE
COMPANY CONTENDED THAT THE COMMISSION'S ORDER WAS CONFISCATORY, IN
VIOLATION OF THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION.  THE
SUPREME COURT REVIEWED AT LENGTH THE FINDINGS OF THE COMMISSION AND
CONCLUDED THAT THERE SHOULD BE A REEXAMINATION BY THE COMMISSION OF
CERTAIN QUESTIONS OF FACT AS TO ELEMENTS OF VALUE.  AFTER STATING THESE
QUESTIONS, THE OPINION OF THE SUPREME COURT CONCLUDED AS FOLLOWS: 

"SUBJECT TO THE FOREGOING, THE JUDGMENT IS AFFIRMED AND THE CAUSE
REMANDED, WITH DIRECTIONS TO THE CIRCUIT COURT TO REMAND TO THE
COMMISSION THAT IT MAY REHEAR AND DETERMINE THE FACTS ON THE FOUR
POINTS ABOVE MENTIONED IN ACCORDANCE WITH THE VIEWS IN THIS OPINION." 
110 S.W.(2D) 749, 780. 

THE PUBLIC SERVICE COMMISSION CONTENDS THAT UNDER THE STATUTES OF
MISSOURI (R.S. MO. 1929, SEC. 5234) THE SUPREME COURT OF MISSOURI
REVIEWS THE ORDER OF THE COMMISSION JUDICIALLY, LUSK V. ATKINSON, 268
MO. 109, 118; 186 S.W. 703; STATE EX REL. DETROIT-CHICAGO MOTOR BUS CO.
V. PUBLIC SERVICE COMM'N, 324 MO. 270, 275; 23 S.W.2D 115; STATE EX
REL. ST. LOUIS V. PUBLIC SERVICE COMM'N, 329 MO. 918, 927; 47 S.W.2D
102; STATE EX REL. KANSAS CITY P. & L. CO. V. PUBLIC SERVICE COMM'N,
335 MO. 1248, 1265; 76 S.W.2D 343; THAT THE COMMISSION ACTS
LEGISLATIVELY (ID.); THAT, ON THE REMAND IN THIS CASE, EACH OF THE
MATTERS MENTIONED BY THE SUPREME COURT WILL BE BEFORE THE COMMISSION
AND THAT IT MAY PROCEED ANEW IN THE EXERCISE OF ITS DISCRETION IN THEIR
DETERMINATION.  THE COMMISSION ADDS: 

"THE COMMISSION MAY, THEREFORE, MAKE A NEW FINDING OF 'FAIR VALUE'
SUBSTANTIALLY DIFFERENT FROM THE ONE FOUND, AS OF THE DATE OF THE
FORMER HEARING.  MOREOVER, SUCH A NEW FINDING OF 'FAIR VALUE' TOGETHER
WITH NEW FINDINGS CONCERNING THE ALLOWANCE FOR ANNUAL DEPRECIATION AND
AMORTIZATION OF COST OF CHANGE-OVER EXPENSE WOULD NECESSITATE THE
FIXING OF A NEW RATE SCHEDULE. 

"FROM THE VERY NATURE OF THE VARIOUS ITEMS REMANDED FOR REHEARING, IT
IS CONCEIVABLE THAT THE COMMISSION MAY REACH CONCLUSIONS WHICH WOULD
CONSTITUTE THE BASIS OF ANOTHER APPEAL. 

"FOR THE REASONS STATED APPELLEE CONTENDS THAT THERE IS NOT YET A
FINAL JUDGMENT FROM WHICH AN APPEAL CAN BE TAKEN." 

WE THINK THAT THE CONTENTION OF THE COMMISSION IS WELL TAKEN. 

APPELLANT URGES THAT, UNDER THE MANDATE OF THE SUPREME COURT, IT
WOULD BE THE DUTY OF THE CIRCUIT COURT TO PROCEED AT ONCE TO EXECUTE
ITS JUDGMENT AFFIRMING THE RATE REDUCTION ORDER, BY DISTRIBUTING TO THE
CUSTOMERS OF APPELLANT THE AMOUNTS WHICH HAVE BEEN HELD BY A DESIGNATED
DEPOSITARY, UNDER ORDER OF THE COURT, PENDING THE FINAL DETERMINATION
OF THE VALIDITY OF THE RATE ORDER.  NO RULING OF THE STATE COURT FOR
SUCH A DISTRIBUTION IS BEFORE US.  THE JUDGMENT OF THE SUPREME COURT
DOES NOT DIRECT THE PAYMENT OVER OF THE AMOUNTS ON DEPOSIT, AND THE
DIRECTION OF THE COURT FOR REMAND TO THE COMMISSION FOR FURTHER
EXAMINATION OF THE QUESTIONS STATED APPARENTLY LEAVES IN ABEYANCE THE
FINAL DETERMINATION OF THE VALIDITY OF THE RATE ORDER AND MAY RESULT,
AS THE COMMISSION STATES, IN ACTION WHICH MAY CONSTITUTE THE BASIS OF
ANOTHER APPEAL.  THE SUPREME COURT EXPRESSLY STATES THAT THE AFFIRMANCE
OF THE JUDGMENT OF THE CIRCUIT COURT IS SUBJECT TO THE REQUIREMENT OF
REEXAMINATION BY THE COMMISSION AS DIRECTED. 

AS WE ARE UNABLE TO CONCLUDE UPON THE RECORD BEFORE US THAT THE STATE
COURT HAS FINALLY DISPOSED OF THE CONTROVERSY THE MOTION TO DISMISS THE
APPEAL MUST BE GRANTED.  DISMISSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :







MAHONEY V. TRINER CORP., 304 U.S. 401 


NO. 761.  ARGUED APRIL 25, 1938.  - DECIDED MAY 23, 1938.  - 20 F.SUPP. 
1019, REVERSED. 


1.  SINCE THE ADOPTION OF THE TWENTY-FIRST AMENDMENT, THE EQUAL
PROTECTION CLAUSE IS INAPPLICABLE TO IMPORTED INTOXICATING LIQUOR.  P.
403. 

2.  A MINNESOTA STATUTE PROVIDES THAT NO LICENSED MANUFACTURER OR
WHOLESALER SHALL IMPORT ANY BRAND OF INTOXICATING LIQUORS CONTAINING
MORE THAN 25% OF ALCOHOL BY VOLUME, READY FOR SALE WITHOUT FURTHER
PROCESSING, UNLESS SUCH BRAND IS REGISTERED IN THE PATENT OFFICE OF THE
UNITED STATES.  HELD VALID UNDER THE TWENTY-FIRST AMENDMENT AS APPLIED
TO A FOREIGN CORPORATION, LICENSED IN MINNESOTA AND ENGAGED THERE IN
WHOLESALING LIQUOR IMPORTED, READY FOR SALE, FROM ANOTHER STATE, UNDER
BRANDS NOT REGISTERED,  - NOTWITHSTANDING THE DISCRIMINATION ARISING IN
FAVOR OF LIQUOR PROCESSED WITHIN THE STATE AND IN FAVOR OF IMPORTED
BRANDS THAT ARE REGISTERED.  P. 404. 

3.  INDEPENDENTLY OF THE TWENTY-FIRST AMENDMENT, A STATE HAS POWER TO
TERMINATE LICENSES TO SELL INTOXICATING LIQUORS.  P. 404. 

MAHONEY, LIQUOR CONTROL COMMISSIONER, ET AL. V. JOSEPH TRINER CORP. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MINNESOTA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES ENJOINING
THE ENFORCEMENT OF A LIQUOR REGULATION.  SEE ALSO 11 F.SUPP.  145. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

PROVIDES: 

"THE TRANSPORTATION OR IMPORTATION INTO ANY STATE, TERRITORY, OR
POSSESSION OF THE UNITED STATES FOR DELIVERY OR USE THEREIN OF
INTOXICATING LIQUORS, IN VIOLATION OF THE LAWS THEREOF, IS HEREBY
PROHIBITED." 

THE ADOPTION OF THE AMENDMENT WAS PROCLAIMED DECEMBER 5, 1933.  IN
FEBRUARY, 1934, JOSEPH TRINER CORPORATION, AN ILLINOIS CORPORATION
ENGAGED THERE IN THE MANUFACTURE OF INTOXICATING LIQUORS, COMPLIED WITH
THE MINNESOTA FOREIGN CORPORATIONS LAW; SECURED FROM THE LIQUOR CONTROL
COMMISSIONER A LICENSE TO SELL SUCH LIQUORS WITHIN MINNESOTA AT
WHOLESALE; AND THEREAFTER CARRIED ON IN THAT STATE THE BUSINESS OF
SELLING TO RETAILERS LIQUORS MANUFACTURED BY IT IN ILLINOIS.  THE
LEGISLATURE OF MINNESOTA ENACTED CHAPTER 390, APPROVED APRIL 29, 1935,
WHICH PROVIDES: 

"NO LICENSED MANUFACTURER OR WHOLESALER SHALL IMPORT ANY BRAND OR
BRANDS OF INTOXICATING LIQUORS CONTAINING MORE THAN 25 PER CENT. OF
ALCOHOL BY VOLUME READY FOR SALE WITHOUT FURTHER PROCESSING UNLESS SUCH
BRAND OR BRANDS SHALL BE DULY REGISTERED IN THE PATENT OFFICE OF THE
UNITED STATES." 

THE BUSINESS OF JOSEPH TRINER CORPORATION IN MINNESOTA INCLUDED
SELLING MANY BRANDS OF LIQUORS CONTAINING MORE THAN 25 PER CENT. OF
ALCOHOL WHICH HAD NOT BEEN REGISTERED IN THE PATENT OFFICE; AND AT THE
TIME OF THE ENACTMENT OF THE STATUTE IT HAD THERE A STOCK OF SUCH
LIQUORS.  TO ENJOIN THE LIQUOR CONTROL COMMISSIONER OF MINNESOTA FROM
INTERFERING WITH THE BUSINESS, IT BROUGHT THIS SUIT IN THE FEDERAL
COURT FOR THAT STATE; ALLEGED THAT THE STATUTE OF 1935 VIOLATED THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION; ALLEGED DANGER OF IRREPARABLE INJURY; AND SOUGHT BOTH A
PRELIMINARY AND A PERMANENT INJUNCTION.  THE SEVERAL STATE OFFICIALS
CHARGED WITH THE DUTY OF ENFORCING THE STATUTE WERE JOINED AS
DEFENDANTS. 

THE CASE WAS HEARD BY THREE JUDGES UNDER SEC. 266 OF THE JUDICIAL
CODE.  THE COURT, HOLDING THAT IT HAD BOTH FEDERAL AND EQUITY
JURISDICTION, GRANTED A PRELIMINARY INJUNCTION, 11 F.SUPP.  145; AND
LATER A PERMANENT INJUNCTION, 20 F.SUPP.  1019.  THE STATE OFFICIALS
APPEALED TO THIS COURT.  THE SOLE CONTENTION OF JOSEPH TRINER
CORPORATION IS THAT THE STATUTE VIOLATED THE EQUAL PROTECTION CLAUSE. 
THE STATE OFFICIALS INSIST THAT THE PROVISION OF THE STATUTE IS A
REASONABLE REGULATION OF THE LIQUOR TRAFFIC; AND ALSO, THAT SINCE THE
ADOPTION OF THE TWENTY-FIRST MAENDMENT, THE EQUAL PROTECTION CLAUSE IS
NOT APPLICABLE TO IMPORTED INTOXICATING LIQUOR.  AS WE ARE OF OPINION
THAT THE LATTER CONTENTION IS SOUND, WE SHALL NOT DISCUSS WHETHER THE
STATUTORY PROVISION IS A REASONABLE REGULATION OF THE LIQUOR TRAFFIC. 

FIRST.  THE STATUTE CLEARLY DISCRIMINATES IN FAVOR OF LIQUOR
PROCESSED WITHIN THE STATE AS AGAINST LIQUOR COMPLETELY PROCESSED
ELSEWHERE.  FOR ONLY THAT LOCALLY PROCESSED MAY BE SOLD REGARDLESS OF
WHETHER THE BRAND HAS BEEN REGISTERED.  THAT, UNDER THE AMENDMENT,
DISCRIMINATION AGAINST IMPORTED LIQUOR IS PERMISSIBLE ALTHOUGH IT IS
NOT AN INCIDENT OF REASONABLE REGULATION OF THE LIQUOR TRAFFIC, WAS
SETTLED BY STATE BOARD OF EQUALIZATION V. YOUNG'S MARKET CO., 299 U.S.
59, 62, 63.  THERE, IT WAS CONTENDED THAT, BY REASON OF THE
DISCRIMINATION INVOLVED, A STATUTE IMPOSING A $500 LICENSE FEE FOR
IMPORTING BEER VIOLATED BOTH THE COMMERCE CLAUSE AND THE EQUAL
PROTECTION CLAUSE.  IN SUSTAINING ITS VALIDITY WE SAID: 

"THE WORDS USED (IN THE AMENDMENT) ARE APT TO CONFER UPON THE STATE
THE POWER TO FORBID ALL IMPORTATIONS WHICH DO NOT COMPLY WITH THE
CONDITIONS WHICH IT (THE STATE) PRESCRIBES.  ... 

"THE PLAINTIFFS ARGUE THAT LIMITATION OF THE BROAD LANGUAGE OF THE
TWENTY-FIRST AMENDMENT IS SANCTIONED BY ITS HISTORY; AND BY THE
DECISIONS OF THIS COURT ON THE WILSON ACT, THE WEBB-KENYON ACT AND THE
REED AMENDMENT.  AS WE THINK THE LANGUAGE OF THE AMENDMENT IS CLEAR, WE
DO NOT DISCUSS THESE MATTERS.  ... 

"THE CLAIM THAT THE STATUTORY PROVISIONS AND THE REGULATIONS ARE VOID
UNDER THE EQUAL PROTECTION CLAUSE MAY BE BRIEFLY DISPOSED OF.  A
CLASSIFICATION RECOGNIZED BY THE TWENTY-FIRST AMENDMENT CANNOT BE
DEEMED FORBIDDEN BY THE FOURTEENTH." 

SECOND.  JOSEPH TRINER CORPORATION INSISTS THAT THE STATUTE IS
UNCONSTITUTIONAL BECAUSE IT PERMITS UNREASONABLE DISCRIMINATION BETWEEN
IMPORTED BRANDS.  THAT IS, THE REGISTERED BRANDS OF OTHER FOREIGN
MANUFACTURERS MAY BE IMPORTED WHILE ITS UNREGISTERED BRANDS MAY NOT BE,
ALTHOUGH "IDENTICAL IN KIND, INGREDIENT AND QUALITY."  WE ARE ASKED TO
LIMIT THE POWER CONFERRED BY THE AMENDMENT SO THAT ONLY THOSE
IMPORTATIONS MAY BE FORBIDDEN WHICH, IN THE OPINION OF THE COURT,
VIOLATE A REASONABLE REGULATION OF THE LIQUOR TRAFFIC.  TO DO SO WOULD,
AS STATED IN THE YOUNG'S MARKET CASE, P. 62, "INVOLVE NOT A
CONSTRUCTION OF THE AMENDMENT, BUT A REWRITING OF IT." 

THIRD.  THE FACT THAT JOSEPH TRINER CORPORATION HAD, WHEN THE STATUTE
WAS PASSED, A VALID LICENSE AND A STOCK OF LIQUORS IN MINNESOTA
IMPORTED UNDER IT, IS IMMATERIAL.  INDEPENDENTLY OF THE TWENTY-FIRST
AMENDMENT, THE STATE HAD POWER TO TERMINATE THE LICENSE.  MUGLER V.
KANSAS, 123 U.S. 623; PREMIER-PABST SALES CO. V. GROSSCUP, 298 U.S.
226, 228.  REVERSED. 

MR. JUSTICE REED CONCURS IN THE RESULT. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







HELVERING V. GERHARDT, 304 U.S. 405 


NO. 779.  ARGUED APRIL 7, 8, 1938.  - DECIDED MAY 23, 1938.  - 92 F.2D
999, REVERSED. 


1.  THE IMMUNITY FROM FEDERAL TAXATION IMPLIED FOR THE PROTECTION OF
THE STATES IS TO BE NARROWLY LIMITED, 

FIRST, BECAUSE THE METHOD OF EXERCISE OF THE FEDERAL TAXING POWER,
BY, AND UPON, ALL THE PEOPLE THROUGH THEIR REPRESENTATIVES IN CONGRESS
AFFORDS A SAFEGUARD AGAINST ITS ABUSE AT THE EXPENSE OF STATE
SOVEREIGNTY; AND, 

SECONDLY, BECAUSE THE IMMUNITY IS AT THE EXPENSE OF THE NATIONAL
SOVEREIGN POWER TO TAX AND IF ENLARGED BEYOND THE NECESSITY OF
PROTECTING THE STATES, ITS BURDEN IS THROWN UPON THE NATIONAL
GOVERNMENT WITH BENEFIT ONLY TO A PRIVILEGED CLASS OF TAXPAYERS.  P.
416. 

2.  THE IMMUNITY FROM FEDERAL TAXATION OF INCOME RECEIVED BY
INDIVIDUALS AS COMPENSATION FOR SERVICES RENDERED TO A STATE, DOES NOT
EXTEND TO CASES WHERE THE BURDEN OF THE TAX TO A STATE FUNCTION IS NOT
SHOWN TO BE ACTUAL AND SUBSTANTIAL, AND NOT CONJECTURAL.  P. 421. 

THIS PRINCIPLE APPLIES EVEN THOUGH THE FUNCTION BE THOUGHT IMPORTANT
ENOUGH TO DEMAND IMMUNITY FROM A TAX UPON THE STATE ITSELF.  P. 420. 

3.  THE PORT OF NEW YORK AUTHORITY IS A BI-STATE CORPORATION CREATED
BY COMPACT BETWEEN THE STATES OF NEW YORK AND NEW JERSEY APPROVED BY
CONGRESS.  PURSUANT TO THE COMPACT AND LEGISLATION OF THE TWO STATES,
IT HAS ACQUIRED AND OPERATES TERMINAL AND TRANSFER FACILITIES WITHIN A
DISTRICT EMBRACING THE PORT OF NEW YORK AND LYING PARTLY IN EACH OF THE
STATES.  IT HAS CONSTRUCTED INTERSTATE BRIDGES AND TUNNELS FOR
VEHICLES, USING FUNDS ADVANCED BY THE TWO STATES OR DERIVED FROM SALE
OF ITS BONDS.  IT OPERATES AN INTERSTATE BUS LINE OVER ONE OF THE
BRIDGES AND A TERMINAL FOR INTERCHANGE OF FREIGHT BETWEEN TRUCKS AND
RAILROADS.  IT COLLECTS TOLLS FOR USE OF THE BRIDGES AND TUNNELS, AND
DERIVES INCOME FROM OPERATION OF THE BUS LINE AND TERMINAL BUILDING BUT
HAS NO STOCK OR STOCKHOLDERS AND IS OWNED BY NO PRIVATE PERSONS OR
CORPORATIONS.  ITS PROJECTS ARE SAID TO BE OPERATED IN BEHALF OF THE
TWO STATES AND IN THE INTERESTS OF THE PUBLIC, AND NONE OF ITS PROFITS
ENURE TO THE BENEFIT OF PRIVATE PERSONS.  ITS PROPERTY AND THE BONDS
AND OTHER SECURITIES ISSUED BY IT ARE EXEMPT BY STATUTE FROM STATE
TAXATION.  A RESOLUTION OF CONGRESS CONSENTING TO THE AUTHORITY'S
COMPREHENSIVE PLAN OF PORT IMPROVEMENT DECLARES THAT ITS ACTIVITIES
WILL PROMOTE AND FACILITATE INTERSTATE AND FOREIGN COMMERCE, PROVIDE
BETTER AND CHEAPER TRANSPORTATION, AND AID IN PROVIDING BETTER POSTAL,
MILITARY, AND OTHER SERVICES OF VALUE TO THE NATION.  STATUTES OF THE
TWO STATES DECLARE THAT IN THE CONSTRUCTION, MAINTENANCE AND OPERATION
OF THE BRIDGES AND TUNNELS IT SHALL BE REGARDED AS PERFORMING A
GOVERNMENTAL FUNCTION AND SHALL BE REQUIRED TO PAY NO TAXES OR
ASSESSMENTS UPON ANY OF THE PROPERTY THEREIN ACQUIRED BY IT.  HELD: 

(1)  THE SALARIES OF A CONSTRUCTION ENGINEER AND TWO ASSISTANT
GENERAL MANAGERS, EMPLOYEES OF THE PORT AUTHORITY, ARE TAXABLE BY THE
FEDERAL GOVERNMENT.  PP. 408, 424. 

THESE EMPLOYEES EACH TOOK AN OATH OF OFFICE.  NEITHER THE COMPACT NOR
ANY STATE STATUTE APPEARS TO HAVE CREATED AN OFFICE OR PRESCRIBED AN
OATH OR DEFINED THE FUNCTION OF SUCH EMPLOYEES.  THEIR OCCUPATIONS ARE
NOT SHOWN TO BE DIFFERENT IN METHODS OR DUTIES FROM SIMILAR EMPLOYMENTS
IN PRIVATE INDUSTRY.  A NON-DISCRIMINATORY TAX LAID ON THEIR NET
INCOME, IN COMMON WITH THAT OF ALL OTHER MEMBERS OF THE COMMUNITY,
COULD BY NO REASONABLE PROBABILITY BE CONSIDERED TO PRECLUDE THE
PERFORMANCE OF THE FUNCTION WHICH NEW YORK AND NEW JERSEY HAVE
UNDERTAKEN, OR TO OBSTRUCT IT MORE THAN LIKE PRIVATE ENTERPRISES ARE
OBSTRUCTED BY TAXATION.  EVEN THOUGH, TO SOME UNASCERTAINABLE EXTENT,
THE TAX DEPRIVES THE STATES OF THE ADVANTAGE OF PAYING LESS THAN THE
STANDARD RATE FOR THE SERVICES WHICH THEY ENGAGE, IT DOES NOT CURTAIL
ANY OF THOSE FUNCTIONS WHICH HAVE BEEN THOUGHT HITHERTO TO BE ESSENTIAL
TO THEIR CONTINUED EXISTENCE AS STATES.  THE EFFECT OF THE IMMUNITY IF
ALLOWED, WOULD BE TO RELIEVE THE TAXPAYERS OF THEIR DUTY OF FINANCIAL
SUPPORT TO THE NATIONAL GOVERNMENT, IN ORDER TO SECURE TO THE STATE A
THEORETICAL ADVANTAGE SO SPECULATIVE IN ITS CHARACTER AND MEASUREMENT
AS TO BE UNSUBSTANTIAL.  PP. 410 ET SEQ. 

(2)  THE COURT EXPRESSES NO OPINION AS TO WHETHER A FEDERAL TAX MAY
BE IMPOSED UPON THE PORT AUTHORITY ITSELF WITH RESPECT TO ITS RECEIPT
OF INCOME OR ITS OTHER ACTIVITIES.  P. 424. 

4.  BRUSH V. COMMISSIONER, 300 U.S. 352, IS LIMITED TO THE DECISION
THAT THE FUNCTION OF THE STATE IN CONNECTION WITH WHICH THE TAXPAYER
RECEIVED THE SALARY TAXED WAS ESSENTIALLY GOVERNMENTAL IN CHARACTER;
THE QUESTION WHETHER THE BURDEN RESULTING TO THE STATE FROM THE TAX ON
HIS SALARY WAS SO INDIRECT OR CONJECTURAL AS TO BE BUT AN INCIDENT OF
THE COEXISTENCE OF THE TWO GOVERNMENTS, AND THEREFORE NOT WITHIN THE
CONSTITUTIONAL IMMUNITY, WAS NOT CONSIDERED.  PP. 422-423. 

5.  THE APPLICABLE PROVISIONS OF SEC. 116 OF THE REVENUE ACT OF 1932
DO NOT AUTHORIZE EXCLUSION FROM GROSS INCOME OF THE SALARIES OF
EMPLOYEES OF A STATE OR STATE-OWNED CORPORATION.  P. 423. 

6.  EMPLOYEES OF THE PORT AUTHORITY OF NEW YORK ARE NOT EMPLOYEES OF
THE STATE OR OF A POLITICAL SUBDIVISION OF IT WITHIN THE MEANING OF
TREASURY REGULATIONS 77, ART. 643, UNDER THE REVENUE ACT OF 1932.  P.
423. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. GERHARDT.* 

*TOGETHER WITH NO. 780, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. WILSON; AND NO. 781, SAME V. MULCAHY, ALSO ON WRITS OF CERTIORARI TO
THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 303 U.S. 630, TO REVIEW JUDGMENTS OF THE CIRCUIT COURT OF
APPEALS SUSTAINING DECISIONS OF THE BOARD OF TAX APPEALS HOLDING THE
SALARIES OF THE PRESENT RESPONDENTS IMMUNE FROM FEDERAL TAXATION. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE IMPOSITION OF A FEDERAL
INCOME TAX FOR THE CALENDAR YEARS 1932 AND 1933 ON SALARIES RECEIVED BY
RESPONDENTS, AS EMPLOYEES OF THE PORT OF NEW YORK AUTHORITY, PLACES AN
UNCONSTITUTIONAL BURDEN ON THE STATES OF NEW YORK AND NEW JERSEY. 

THE PORT AUTHORITY IS A BI-STATE CORPORATION, CREATED BY COMPACT
BETWEEN NEW YORK AND NEW JERSEY, LAWS OF N.Y., 1921, C. 154; LAWS OF
N.J., 1921, C. 151, APPROVED BY THE CONGRESS OF THE UNITED STATES BY
JOINT RESOLUTION OF AUGUST 23, 1921, C. 77, 42 STAT. 174.  THE COMPACT
AUTHORIZED THE AUTHORITY TO ACQUIRE AND OPERATE "ANY TERMINAL OR
TRANSPORTATION FACILITY" WITHIN A SPECIFIED DISTRICT EMBRACING THE PORT
OF NEW YORK AND LYING PARTIALLY WITHIN EACH STATE.  IT DIRECTED THE
AUTHORITY TO RECOMMEND A COMPREHENSIVE PLAN FOR IMPROVING THE PORT AND
FACILITATING ITS USE, BY THE CONSTRUCTION AND OPERATION OF BRIDGES,
TUNNELS, TERMINALS AND OTHER FACILITIES.  THE AUTHORITY MADE SUCH A
RECOMMENDATION IN ITS REPORT OF DECEMBER, 1921, ADOPTED BY THE TWO
STATES IN 1922.  LAWS OF N.Y., 1922, C. 43; LAWS OF N.J., 1922, C. 9. 

IN CONFORMITY TO THE PLAN, AND PURSUANT TO FURTHER LEGISLATION OF THE
TWO STATES, THE AUTHORITY HAS CONSTRUCTED THE OUTERBRIDGE CROSSING
BRIDGE, THE GOETHALS BRIDGE, THE BAYONNE BRIDGE, AND THE GEORGE
WASHINGTON BRIDGE, INTERSTATE VEHICULAR BRIDGES ALL PASSING OVER WATERS
OF THE HARBOR OR ADJACENT TO IT.  IT HAS ALSO CONSTRUCTED THE HOLLAND
TUNNEL AND THE LINCOLN TUNNEL, INTERSTATE VEHICULAR TUNNELS PASSING
UNDER THE HUDSON RIVER.  THESE ENTERPRISES WERE FINANCED IN LARGE PART
BY FUNDS ADVANCED BY THE TWO STATES AND BY THE PORT AUTHORITY'S ISSUE
AND SALE OF ITS BONDS.  IN ADDITION, THE AUTHORITY OPERATES AN
INTERSTATE BUS LINE OVER THE GOETHALS BRIDGE.  IT HAS ERECTED AND
OPERATES THE PORT AUTHORITY COMMERCE BUILDING IN NEW YORK CITY, WHICH
HOUSES INLAND TERMINAL NO. 1, DEVOTED TO USE AS A FREIGHT TERMINAL IN
CONNECTION WITH A PLAN TO COORDINATE TRANSPORTATION FACILITIES AND
REDUCE CONGESTION.  THE TERMINAL HAS NO PHYSICAL CONNECTION WITH ANY
RAILROAD FACILITIES, DOCK OR PIER, BUT IS USED AS A TRANSFER TERMINAL
FOR INTERCHANGE OF FREIGHT BROUGHT BY TRUCK FROM AND TO THE TERMINAL
AND TO AND FROM EIGHT RAILROAD TERMINALS. 

THE PORT AUTHORITY COLLECTS TOLLS FOR THE USE OF THE BRIDGES AND
TUNNELS, AND DERIVES INCOME FROM THE OPERATION OF THE BUS LINE AND
TERMINAL BUILDING, BUT IT HAS NO STOCK AND NO STOCKHOLDERS, AND IS
OWNED BY NO PRIVATE PERSONS OR CORPORATIONS.  ITS PROJECTS ARE ALL SAID
TO BE OPERATED IN BEHALF OF THE TWO STATES AND IN THE INTERESTS OF THE
PUBLIC, AND NONE OF ITS PROFITS ENURE TO THE BENEFIT OF PRIVATE
PERSONS.  ITS PROPERTY AND THE BONDS AND OTHER SECURITIES ISSUED BY IT
ARE EXEMPT BY STATUTE FROM STATE TAXATION.  THE JOINT RESOLUTION OF
CONGRESS CONSENTING TO THE COMPREHENSIVE PLAN OF PORT IMPROVEMENT, PUB.
RES. NO. 66, 67TH CONG., H. J. RESOLUTION NO. 337, JULY 1, 1922,
DECLARES THAT THE ACTIVITIES OF THE PORT AUTHORITY UNDER THE PLAN "WILL
THE BETTER PROMOTE AND FACILITATE COMMERCE BETWEEN THE STATES AND
BETWEEN THE STATES AND FOREIGN NATIONS AND PROVIDE BETTER AND CHEAPER
TRANSPORTATION OF PROPERTY AND AID IN PROVIDING BETTER POSTAL,
MILITARY, AND OTHER SERVICES OF VALUE TO THE NATION."  STATUTES OF NEW
YORK AND NEW JERSEY RELATING TO THE VARIOUS PROJECTS OF THE PORT
AUTHORITY DECLARE THAT THEY ARE "IN ALL RESPECTS FOR THE BENEFIT OF THE
PEOPLE OF THE TWO STATES, FOR THE INCREASE OF THEIR COMMERCE AND
PROSPERITY, AND FOR THE IMPROVEMENT OF THEIR HEALTH AND LIVING
CONDITIONS, AND THE PORT AUTHORITY SHALL BE REGARDED AS PERFORMING A
GOVERNMENTAL FUNCTION IN UNDERTAKING THE SAID CONSTRUCTION, MAINTENANCE
AND OPERATION AND IN CARRYING OUT THE PROVISIONS OF LAW RELATING TO THE
SAID (BRIDGES AND TUNNELS) AND SHALL BE REQUIRED TO PAY NO TAXES OR
ASSESSMENTS UPON ANY OF THE PROPERTY ACQUIRED BY IT FOR THE
CONSTRUCTION, OPERATION AND MAINTENANCE OF SUCH" BRIDGES AND TUNNELS. 
LAWS OF N.J., 1925, C. 37, SEC. 7; LAWS OF N.Y., 1925, C. 210, SEC. 7;
LAWS OF N.J., 1926, C. 6, SEC. 7; LAWS OF N.Y., 1926, C. 761, SEC. 7;
LAWS OF N.J., 1927, C. 3, SEC. 7; LAWS OF N.Y., 1927, C. 300, SEC. 7;
LAWS OF N.J., 1931, C. 4, SEC. 14; LAWS OF N.Y., 1931, C. 47, SEC. 14. 

THE RESPONDENTS, DURING THE TAXABLE YEARS IN QUESTION, WERE
RESPECTIVELY A CONSTRUCTION ENGINEER AND TWO ASSISTANT GENERAL
MANAGERS, EMPLOYED BY THE AUTHORITY AT ANNUAL SALARIES RANGING BETWEEN
$8,000 AND $15,000.  ALL TOOK OATHS OF OFFICE, ALTHOUGH NEITHER THE
COMPACT NOR THE RELATED STATUTES APPEAR TO HAVE CREATED ANY OFFICE TO
WHICH ANY OF THE RESPONDENTS WERE APPOINTED, OR DEFINED THEIR DUTIES OR
PRESCRIBED THAT THEY SHOULD TAKE AN OATH.  THE SEVERAL RESPONDENTS
HAVING FAILED TO RETURN THEIR RESPECTIVE SALARIES AS INCOME FOR THE
TAXABLE YEARS IN QUESTION, THE COMMISSIONER DETERMINED DEFICIENCIES
AGAINST THEM.  THE BOARD OF TAX APPEALS FOUND THAT THE PORT AUTHORITY
WAS ENGAGED IN THE PERFORMANCE OF A PUBLIC FUNCTION FOR THE STATES OF
NEW YORK AND NEW JERSEY, AND RULED THAT THE COMPENSATION RECEIVED BY
THE AUTHORITY'S EMPLOYEES WAS EXEMPT FROM FEDERAL INCOME TAX.  THE
COURT OF APPEALS FOR THE SECOND CIRCUIT, 92 F.2D 999, AFFIRMED WITHOUT
OPINION ON THE AUTHORITY OF BRUSH V. COMMISSIONER, 85 F.2D 32, REV'D,
300 U.S. 352; COMMISSIONER V. TEN EYCK, 76 F.2D 515, AND NEW YORK EX
REL. ROGERS V. GRAVES, 299 U.S. 401.  WE GRANTED CERTIORARI BECAUSE OF
THE PUBLIC IMPORTANCE OF THE QUESTION PRESENTED. 

THE CONSTITUTION CONTAINS NO EXPRESS LIMITATION ON THE POWER OF
EITHER A STATE OR THE NATIONAL GOVERNMENT TO TAX THE OTHER, OR ITS
INSTRUMENTALITIES.  THE DOCTRINE THAT THERE IS AN IMPLIED LIMITATION
STEMS FROM MCCULLOCH V. MARYLAND, 4 WHEAT.  316, IN WHICH IT WAS HELD
THAT A STATE TAX LAID SPECIFICALLY UPON THE PRIVILEGE OF ISSUING BANK
NOTES, AND IN FACT APPLICABLE ALONE TO THE NOTES OF NATIONAL BANKS, WAS
INVALID SINCE IT IMPEDED THE NATIONAL GOVERNMENT IN THE EXERCISE OF ITS
POWER TO ESTABLISH AND MAINTAIN A BANK, IMPLIED AS AN INCIDENT TO THE
BORROWING, TAXING, WAR AND OTHER POWERS SPECIFICALLY GRANTED TO THE
NATIONAL GOVERNMENT BY ARTICLE I, SEC. 8 OF THE CONSTITUTION.  IT WAS
HELD THAT CONGRESS, HAVING POWER TO ESTABLISH A BANK BY LAWS WHICH,
WHEN ENACTED UNDER THE CONSTITUTION, ARE SUPREME, ALSO HAD POWER TO
PROTECT THE BANK BY STRIKING DOWN STATE ACTION IMPEDING ITS OPERATIONS;
AND IT WAS THOUGHT THAT THE STATE TAX IN QUESTION WAS SO INCONSISTENT
WITH CONGRESS'S CONSTITUTIONAL ACTION IN ESTABLISHING THE BANK AS TO
COMPEL THE CONCLUSION THAT CONGRESS INTENDED TO FORBID APPLICATION OF
THE TAX TO THE FEDERAL BANK NOTES.  FN1 CF. OSBORN V. BANK OF UNITED
STATES, 9 WHEAT.  738, 865-868. 

IN SUSTAINING THE IMMUNITY FROM STATE TAXATION, THE OPINION OF THE
COURT, BY CHIEF JUSTICE MARSHALL, RECOGNIZED A CLEAR DISTINCTION
BETWEEN THE EXTENT OF THE POWER OF A STATE TO TAX NATIONAL BANKS AND
THAT OF THE NATIONAL GOVERNMENT TO TAX STATE INSTRUMENTALITIES.  HE WAS
CAREFUL TO POINT OUT NOT ONLY THAT THE TAXING POWER OF THE NATIONAL
GOVERNMENT IS SUPREME, BY REASON OF THE CONSTITUTIONAL GRANT, BUT THAT
IN LAYING A FEDERAL TAX ON STATE INSTRUMENTALITIES THE PEOPLE OF THE
STATES, ACTING THROUGH THEIR REPRESENTATIVES, ARE LAYING A TAX ON THEIR
OWN INSTITUTIONS AND CONSEQUENTLY ARE SUBJECT TO POLITICAL RESTRAINTS
WHICH CAN BE COUNTED ON TO PREVENT ABUSE.  STATE TAXATION OF NATIONAL
INSTRUMENTALITIES IS SUBJECT TO NO SUCH RESTRAINT, FOR THE PEOPLE
OUTSIDE THE STATE HAVE NO REPRESENTATIVES WHO PARTICIPATE IN THE
LEGISLATION; AND IN A REAL SENSE, AS TO THEM, THE TAXATION IS WITHOUT
REPRESENTATION.  THE EXERCISE OF THE NATIONAL TAXING POWER IS THUS
SUBJECT TO A SAFEGUARD WHICH DOES NOT OPERATE WHEN A STATE UNDERTAKES
TO TAX A NATIONAL INSTRUMENTALITY.  FN2 

IT WAS PERHAPS ENOUGH TO HAVE SUPPORTED THE CONCLUSION THAT THE TAX
WAS INVALID, THAT IT WAS AIMED SPECIFICALLY AT NATIONAL BANKS AND THUS
OPERATED TO DISCRIMINATE AGAINST THE EXERCISE BY THE CONGRESS OF A
NATIONAL POWER.  SUCH DISCRIMINATION WAS LATER RECOGNIZED TO BE IN
ITSELF A SUFFICIENT GROUND FOR HOLDING INVALID ANY FORM OF STATE
TAXATION ADVERSELY AFFECTING THE USE OR ENJOYMENT OF FEDERAL
INSTRUMENTALITIES.  MILLER V. MILWAUKEE, 272 U.S. 713; CF. PACIFIC CO.,
LTD. V. JOHNSON, 285 U.S. 480, 493.  BUT LATER CASES HAVE DECLARED THAT
FEDERAL INSTRUMENTALITIES ARE SIMILARLY IMMUNE FROM NON-DISCRIMINATORY
STATE TAXATION - FROM THE TAXATION OF OBLIGATIONS OF THE UNITED STATES
AS AN INTERFERENCE WITH THE BORROWING POWER, WESTON V. CHARLESTON, 2
PET. 449; AND FROM A TAX ON "OFFICES" LEVIED UPON THE OFFICE OF A
CAPTAIN OF A REVENUE CUTTER.  DOBBINS V. ERIE COUNTY, 16 PET. 435. 
FN3 

THAT THE TAXING POWER OF THE FEDERAL GOVERNMENT IS NEVERTHELESS
SUBJECT TO AN IMPLIED RESTRICTION WHEN APPLIED TO STATE
INSTRUMENTALITIES WAS FIRST DECIDED IN COLLECTOR V. DAY, 11 WALL.  113,
WHERE THE SALARY OF A STATE OFFICER, A PROBATE JUDGE, WAS HELD TO BE
IMMUNE FROM FEDERAL INCOME TAX.  THE QUESTION THERE PRESENTED TO THE
COURT WAS NOT ONE OF INTERFERENCE WITH A GRANTED POWER IN A FIELD IN
WHICH THE FEDERAL GOVERNMENT IS SUPREME, BUT A LIMITATION BY
IMPLICATION UPON THE GRANTED FEDERAL POWER TO TAX.  IN RECOGNIZING THAT
IMPLICATION FOR THE FIRST TIME, THE COURT WAS CONCERNED WITH THE
CONTINUED EXISTENCE OF THE STATES AS GOVERNMENTAL ENTITIES, AND THEIR
PRESERVATION FROM DESTRUCTION BY THE NATIONAL TAXING POWER.  THE
IMMUNITY WHICH IT IMPLIED WAS SUSTAINED ONLY BECAUSE IT WAS ONE DEEMED
NECESSARY TO PROTECT THE STATES FROM DESTRUCTION BY THE FEDERAL
TAXATION OF THOSE GOVERNMENTAL FUNCTIONS WHICH THEY WERE EXERCISING
WHEN THE CONSTITUTION WAS ADOPTED AND WHICH WERE ESSENTIAL TO THEIR
CONTINUED EXISTENCE. 

THE COURT POINTED OUT THAT THE STATES WERE IN EXISTENCE AS SUCH
ENTITIES WHEN THE CONSTITUTION WAS ADOPTED; THAT THE CONSTITUTION
GUARANTEED TO THEM A REPUBLICAN FORM OF GOVERNMENT AND UNDERTOOK TO
PROTECT THEM FROM INVASION AND DOMESTIC VIOLENCE; THAT IT PRESUPPOSES
THE CONTINUED EXISTENCE OF THE STATES  FN4  AND THEIR CONTINUED
PERFORMANCE, FREE OF INHIBITION BY THE NATIONAL TAXING POWER, OF "THE
HIGH AND RESPONSIBLE DUTIES ASSIGNED TO THEM IN THE CONSTITUTION  ...
AND, MORE ESPECIALLY, THOSE MEANS AND INSTRUMENTALITIES WHICH ARE THE
CREATION OF THEIR SOVEREIGN AND RESERVED RIGHTS, ONE OF WHICH IS THE
ESTABLISHMENT OF THE JUDICIAL DEPARTMENT, AND THE APPOINTMENT OF
OFFICERS TO ADMINISTER THEIR LAWS.  WITHOUT THIS POWER, AND THE
EXERCISE OF IT," THE COURT DECLARED, "WE RISK NOTHING IN SAYING THAT NO
ONE OF THE STATES UNDER THE FORM OF GOVERNMENT GUARANTEED BY THE
CONSTITUTION COULD LONG PRESERVE ITS EXISTENCE.  A DESPOTIC GOVERNMENT
MIGHT.  WE HAVE SAID THAT ONE OF THE RESERVED POWERS WAS THAT TO
ESTABLISH A JUDICIAL DEPARTMENT  ...  ALL OF THE THIRTEEN STATES WERE
IN THE POSSESSION OF THIS POWER, AND HAD EXERCISED IT AT THE ADOPTION
OF THE CONSTITUTION; AND IT IS NOT PRETENDED THAT ANY GRANT OF IT TO
THE GENERAL GOVERNMENT IS FOUND IN THAT INSTRUMENT."  11 WALL.  125,
126. 

WE NEED NOT STOP TO INQUIRE HOW FAR, AS INDICATED IN MCCULLOCH V.
MARYLAND, SUPRA, THE IMMUNITY OF FEDERAL INSTRUMENTALITIES FROM STATE
TAXATION RESTS ON A DIFFERENT BASIS FROM THAT OF STATE
INSTRUMENTALITIES; OR WHETHER OR TO WHAT DEGREE IT IS MORE EXTENSIVE. 
AS TO THOSE QUESTIONS, OTHER CONSIDERATIONS MAY BE CONTROLLING WHICH
ARE NOT PERTINENT HERE.  IT IS ENOUGH FOR PRESENT PURPOSES THAT THE
STATE IMMUNITY FROM THE NATIONAL TAXING POWER, WHEN RECOGNIZED IN
COLLECTOR V. DAY, SUPRA, WAS NARROWLY LIMITED TO A STATE JUDICIAL
OFFICER ENGAGED IN THE PERFORMANCE OF A FUNCTION WHICH PERTAINED TO
STATE GOVERNMENTS AT THE TIME THE CONSTITUTION WAS ADOPTED, WITHOUT
WHICH NO STATE "COULD LONG PRESERVE ITS EXISTENCE." 

THERE ARE COGENT REASONS WHY ANY CONSTITUTIONAL RESTRICTION UPON THE
TAXING POWER GRANTED TO CONGRESS, SO FAR AS IT CAN BE PROPERLY RAISED
BY IMPLICATION, SHOULD BE NARROWLY LIMITED.  ONE, AS WAS POINTED OUT BY
CHIEF JUSTICE MARSHALL IN MCCULLOCH V. MARYLAND, SUPRA, 435-436, AND
WESTON V. CHARLESTON, SUPRA, 465-466, IS THAT THE PEOPLE OF ALL THE
STATES HAVE CREATED THE NATIONAL GOVERNMENT AND ARE REPRESENTED IN
CONGRESS.  THROUGH THAT REPRESENTATION THEY EXERCISE THE NATIONAL
TAXING POWER.  THE VERY FACT THAT WHEN THEY ARE EXERCISING IT THEY ARE
TAXING THEMSELVES, SERVES TO GUARD AGAINST ITS ABUSE THROUGH THE
POSSIBILITY OF RESORT TO THE USUAL PROCESSES OF POLITICAL ACTION WHICH
PROVIDES A READIER AND MORE ADAPTABLE MEANS THAN ANY WHICH COURTS CAN
AFFORD, FOR SECURING ACCOMMODATION OF THE COMPETING DEMANDS FOR
NATIONAL REVENUE, ON THE ONE HAND, AND FOR REASONABLE SCOPE FOR THE
INDEPENDENCE OF STATE ACTION, ON THE OTHER.    ANOTHER REASON RESTS
UPON THE FACT THAT ANY ALLOWANCE OF A TAX IMMUNITY FOR THE PROTECTION
OF STATE SOVEREIGNTY IS AT THE EXPENSE OF THE SOVEREIGN POWER OF THE
NATION TO TAX.  ENLARGEMENT OF THE ONE INVOLVES DIMINUTION OF THE
OTHER.  WHEN ENLARGEMENT PROCEEDS BEYOND THE NECESSITY OF PROTECTING
THE STATE, THE BURDEN OF THE IMMUNITY IS THROWN UPON THE NATIONAL
GOVERNMENT WITH BENEFIT ONLY TO A PRIVILEGED CLASS OF TAXPAYERS.  SEE
METCALF & EDDY V. MITCHELL, 269 U.S. 514; CF. THOMSON V. PACIFIC
RAILROAD, 9 WALL.  579, 588, 590.  WITH THE STEADY EXPANSION OF THE
ACTIVITY OF STATE GOVERNMENTS INTO NEW FIELDS THEY HAVE UNDERTAKEN THE
PERFORMANCE OF FUNCTIONS NOT KNOWN TO THE STATES WHEN THE CONSTITUTION
WAS ADOPTED, AND HAVE TAKEN OVER THE MANAGEMENT OF BUSINESS ENTERPRISES
ONCE CONDUCTED EXCLUSIVELY BY PRIVATE INDIVIDUALS SUBJECT TO THE
NATIONAL TAXING POWER.  IN A COMPLEX ECONOMIC SOCIETY TAX BURDENS LAID
UPON THOSE WHO DIRECTLY OR INDIRECTLY HAVE DEALINGS WITH THE STATES,
TEND, TO SOME EXTENT NOT CAPABLE OF PRECISE MEASUREMENT, TO BE PASSED
ON ECONOMICALLY AND THUS TO BURDEN THE STATE GOVERNMENT ITSELF.  BUT IF
EVERY FEDERAL TAX WHICH IS LAID ON SOME NEW FORM OF STATE ACTIVITY, OR
WHOSE ECONOMIC BURDEN REACHES IN SOME MEASURE THE STATE OR THOSE WHO
SERVE IT, WERE TO BE SET ASIDE AS AN INFRINGEMENT OF STATE SOVEREIGNTY,
IT IS EVIDENT THAT A RESTRICTION UPON NATIONAL POWER, DEVISED ONLY AS A
SHIELD TO PROTECT THE STATES FROM CURTAILMENT OF THE ESSENTIAL
OPERATIONS OF GOVERNMENT WHICH THEY HAVE EXERCISED FROM THE BEGINNING,
WOULD BECOME A READY MEANS FOR STRIKING DOWN THE TAXING POWER OF THE
NATION.  SEE SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437, 454-455. 
ONCE IMPAIRED BY THE RECOGNITION OF A STATE IMMUNITY FOUND TO BE
EXCESSIVE, RESTORATION OF THAT POWER IS NOT LIKELY TO BE SECURED
THROUGH THE ACTION OF STATE LEGISLATURES; FOR THEY ARE WITHOUT THE
INDUCEMENTS TO ACT WHICH HAVE OFTEN PERSUADED CONGRESS TO WAIVE
IMMUNITIES THOUGHT TO BE EXCESSIVE.  FN5 

IN TACIT RECOGNITION OF THE LIMITATION WHICH THE VERY NATURE OF OUR
FEDERAL SYSTEM IMPOSES ON STATE IMMUNITY FROM TAXATION IN ORDER TO
AVOID AN EVER EXPANDING ENCROACHMENT UPON THE FEDERAL TAXING POWER,
THIS COURT HAS REFUSED TO ENLARGE THE IMMUNITY SUBSTANTIALLY BEYOND
THOSE LIMITS MARKED OUT IN COLLECTOR V. DAY, SUPRA.  IT HAS BEEN
SUSTAINED WHERE, AS IN COLLECTOR V. DAY, THE FUNCTION INVOLVED WAS ONE
THOUGHT TO BE ESSENTIAL TO THE MAINTENANCE OF A STATE GOVERNMENT:  AS
WHERE THE ATTEMPT WAS TO TAX INCOME RECEIVED FROM THE INVESTMENTS OF A
MUNICIPAL SUBDIVISION OF A STATE, UNITED STATES V. RAILROAD CO., 17
WALL.  322; TO TAX INCOME RECEIVED BY A PRIVATE INVESTOR FROM STATE
BONDS, AND THUS THREATEN IMPAIRMENT OF THE BORROWING POWER OF THE
STATE, POLLOCK V. FARMERS LOAN & TRUST CO., 157 U.S. 429; CF. WESTON V.
CHARLESTON, SUPRA, 465-466; OR TO TAX THE MANUFACTURE AND SALE TO A
MUNICIPAL CORPORATION OF EQUIPMENT FOR ITS POLICE FORCE, INDIAN
MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570. 

BUT THE COURT HAS REFUSED TO EXTEND THE IMMUNITY TO A STATE CONDUCTED
LIQUOR BUSINESS, SOUTH CAROLINA V. UNITED STATES, SUPRA; OHIO V.
HELVERING, 292 U.S. 360, OR TO A STREET RAILWAY BUSINESS TAKEN OVER AND
OPERATED BY STATE OFFICERS AS A MEANS OF EFFECTING A LOCAL PUBLIC
POLICY.  HELVERING V. POWERS, 293 U.S. 214.  IT HAS SUSTAINED THE
IMPOSITION OF A FEDERAL EXCISE TAX LAID ON THE PRIVILEGE OF EXERCISING
CORPORATE FRANCHISES GRANTED BY A STATE TO PUBLIC SERVICE COMPANIES. 
FLINT V. STONE TRACY CO., 220 U.S. 107, 157.  IN EACH OF THESE CASES IT
WAS POINTED OUT THAT THE STATE FUNCTION AFFECTED WAS ONE WHICH COULD BE
CARRIED ON BY PRIVATE ENTERPRISE, AND THAT THEREFORE IT WAS NOT ONE
WITHOUT WHICH A STATE COULD NOT CONTINUE TO EXIST AS A GOVERNMENTAL
ENTITY.  THE IMMUNITY HAS BEEN STILL MORE NARROWLY RESTRICTED IN THOSE
CASES WHERE SOME PART OF THE BURDEN OF A TAX COLLECTED NOT FROM A STATE
TREASURY BUT FROM INDIVIDUAL TAXPAYERS, IS SAID TO BE PASSED ON TO THE
STATE.  IN THESE CASES THE FUNCTION HAS BEEN EITHER HELD OR ASSUMED TO
BE OF SUCH A CHARACTER THAT ITS PERFORMANCE BY THE STATE IS IMMUNE FROM
DIRECT FEDERAL INTERFERENCE; YET THE INDIVIDUALS WHO PERSONALLY DERIVED
PROFIT OR COMPENSATION FROM THEIR EMPLOYMENT IN CARRYING OUT THE
FUNCTION WERE DEEMED TO BE SUBJECT TO FEDERAL INCOME TAX.  FN6 

IN A PERIOD MARKED BY A CONSTANT EXPANSION OF GOVERNMENT ACTIVITIES
AND THE STEADY MULTIPLICATION OF THE COMPLEXITIES OF TAXING SYSTEMS, IT
IS PERHAPS TOO MUCH TO EXPECT THAT THE JUDICIAL PRONOUNCEMENTS MARKING
THE BOUNDARIES OF STATE IMMUNITY SHOULD PRESENT A COMPLETELY LOGICAL
PATTERN.  BUT THEY DISCLOSE NO PURPOSEFUL DEPARTURE FROM, AND INDEED
DEFINITELY ESTABLISH, TWO GUIDING PRINCIPLES OF LIMITATION FOR HOLDING
THE TAX IMMUNITY OF STATE INSTRUMENTALITIES TO ITS PROPER FUNCTION. 
THE ONE, DEPENDENT UPON THE NATURE OF THE FUNCTION BEING PERFORMED BY
THE STATE OR IN ITS BEHALF, EXCLUDES FROM THE IMMUNITY ACTIVITIES
THOUGHT NOT TO BE ESSENTIAL TO THE PRESERVATION OF STATE GOVERNMENTS
EVEN THOUGH THE TAX BE COLLECTED FROM THE STATE TREASURY.  THE STATE
ITSELF WAS TAXED FOR THE PRIVILEGE OF CARRYING ON THE LIQUOR BUSINESS
IN SOUTH CAROLINA V. UNITED STATES, SUPRA, AND IN OHIO V. HELVERING,
SUPRA; AND A TAX ON THE INCOME OF A STATE OFFICER ENGAGED IN THE
MANAGEMENT OF A STATE-OWNED CORPORATION OPERATING A STREET RAILROAD WAS
SUSTAINED IN HELVERING V. POWERS, SUPRA, BECAUSE IT WAS THOUGHT THAT
THE FUNCTIONS DISCOURAGED BY THESE TAXES WERE NOT INDISPENSABLE TO THE
MAINTENANCE OF A STATE GOVERNMENT.  THE OTHER PRINCIPLE, EXEMPLIFIED BY
THOSE CASES WHERE THE TAX LAID UPON INDIVIDUALS AFFECTS THE STATE ONLY
AS THE BURDEN IS PASSED ON TO IT BY THE TAXPAYER, FORBIDS RECOGNITION
OF THE IMMUNITY WHEN THE BURDEN ON THE STATE IS SO SPECULATIVE AND
UNCERTAIN THAT IF ALLOWED IT WOULD RESTRICT THE FEDERAL TAXING POWER
WITHOUT AFFORDING ANY CORRESPONDING TANGIBLE PROTECTION TO THE STATE
GOVERNMENT; EVEN THOUGH THE FUNCTION BE THOUGHT IMPORTANT ENOUGH TO
DEMAND IMMUNITY FROM A TAX UPON THE STATE ITSELF, IT IS NOT NECESSARILY
PROTECTED FROM A TAX WHICH WELL MAY BE SUBSTANTIALLY OR ENTIRELY
ABSORBED BY PRIVATE PERSONS.  METCALF & EDDY V. MITCHELL, SUPRA;
WILLCUTS V. BUNN, 282 U.S. 216. 

WITH THESE CONTROLLING PRINCIPLES IN MIND WE TURN TO THEIR
APPLICATION IN THE CIRCUMSTANCES OF THE PRESENT CASE.  THE CHALLENGED
TAXES LAID UNDER SEC. 22, REVENUE ACT OF 1932, C. 209, 47 STAT. 169,
178, ARE UPON THE NET INCOME OF RESPONDENTS, DERIVED FROM THEIR
EMPLOYMENT IN COMMON OCCUPATIONS NOT SHOWN TO BE DIFFERENT IN THEIR
METHODS OR DUTIES FROM THOSE OF SIMILAR EMPLOYEES IN PRIVATE INDUSTRY. 
THE TAXPAYERS ENJOY THE BENEFITS AND PROTECTION OF THE LAWS OF THE
UNITED STATES.  THEY ARE UNDER A DUTY TO SUPPORT ITS GOVERNMENT AND ARE
NOT BEYOND THE REACH OF ITS TAXING POWER.  A NON-DISCRIMINATORY TAX
LAID ON THEIR NET INCOME, IN COMMON WITH THAT OF ALL OTHER MEMBERS OF
THE COMMUNITY, COULD BY NO REASONABLE PROBABILITY BE CONSIDERED TO
PRECLUDE THE PERFORMANCE OF THE FUNCTION WHICH NEW YORK AND NEW JERSEY
HAVE UNDERTAKEN, OR TO OBSTRUCT IT MORE THAN LIKE PRIVATE ENTERPRISES
ARE OBSTRUCTED BY OUR TAXING SYSTEM.  EVEN THOUGH, TO SOME
UNASCERTAINABLE EXTENT, THE TAX DEPRIVES THE STATES OF THE ADVANTAGE OF
PAYING LESS THAN THE STANDARD RATE FOR THE SERVICES WHICH THEY ENGAGE,
IT DOES NOT CURTAIL ANY OF THOSE FUNCTIONS WHICH HAVE BEEN THOUGHT
HITHERTO TO BE ESSENTIAL TO THEIR CONTINUED EXISTENCE AS STATES.  AT
MOST IT MAY BE SAID TO INCREASE SOMEWHAT THE COST OF THE STATE
GOVERNMENTS BECAUSE, IN AN INTERDEPENDENT ECONOMIC SOCIETY, THE
TAXATION OF INCOME TENDS TO RAISE (TO SOME EXTENT WHICH ECONOMISTS ARE
NOT ABLE TO MEASURE, SEE INDIAN MOTOCYCLE CO. V. UNITED STATES, SUPRA,
P. 581, FOOTNOTE 1) THE PRICE OF LABOR AND MATERIALS.  THE EFFECT OF
THE IMMUNITY IF ALLOWED WOULD BE TO RELIEVE RESPONDENTS OF THEIR DUTY
OF FINANCIAL SUPPORT TO THE NATIONAL GOVERNMENT, IN ORDER TO SECURE TO
THE STATE A THEORETICAL ADVANTAGE SO SPECULATIVE IN ITS CHARACTER AND
MEASUREMENT AS TO BE UNSUBSTANTIAL.  A TAX IMMUNITY DEVISED FOR
PROTECTION OF THE STATES AS GOVERNMENTAL ENTITIES CANNOT BE PRESSED SO
FAR. 

THE FACT THAT THE EXPENSES OF THE STATE GOVERNMENT MIGHT BE LESSENED
IF ALL THOSE WHO DEAL WITH IT WERE TAX EXEMPT WAS NOT THOUGHT TO BE AN
ADEQUATE BASIS FOR TAX IMMUNITY IN METCALF & EDDY V. MITCHELL, SUPRA,
IN GROUP NO. 1 OIL CORP. V. BASS, 283 U.S. 279, IN BURNET V. JERGINS
TRUST, 288 U.S. 508; OR IN HELVERING V. MOUNTAIN PRODUCERS CORP., 303
U.S. 376.  FN7  WHEN IMMUNITY IS CLAIMED FROM A TAX LAID ON PRIVATE
PERSONS, IT MUST CLEARLY APPEAR THAT THE BURDEN UPON THE STATE FUNCTION
IS ACTUAL AND SUBSTANTIAL, NOT CONJECTURAL.  WILLCUTS V. BUNN, SUPRA,
231.  THE EXTENT TO WHICH SALARIES IN BUSINESS OR PROFESSIONS WHOSE
STANDARDS OF COMPENSATION ARE OTHERWISE FIXED BY COMPETITIVE CONDITIONS
MAY BE AFFECTED BY THE IMMUNITY OF STATE EMPLOYEES FROM INCOME TAX IS
TO A HIGH DEGREE CONJECTURAL. 

THE BASIS UPON WHICH CONSTITUTIONAL TAX IMMUNITY OF A STATE HAS BEEN
SUPPORTED IS THE PROTECTION WHICH IT AFFORDS TO THE CONTINUED EXISTENCE
OF THE STATE.  TO ATTAIN THAT END IT IS NOT ORDINARILY NECESSARY TO
CONFER ON THE STATE A COMPETITIVE ADVANTAGE OVER PRIVATE PERSONS IN
CARRYING ON THE OPERATIONS OF ITS GOVERNMENT.  THERE IS NO SUCH
NECESSITY HERE, AND THE RESULTING IMPAIRMENT OF THE FEDERAL POWER TO
TAX ARGUES AGAINST THE ADVANTAGE.  THE STATE AND NATIONAL GOVERNMENTS
MUST CO-EXIST.  EACH MUST BE SUPPORTED BY TAXATION OF THOSE WHO ARE
CITIZENS OF BOTH.  THE MERE FACT THAT THE ECONOMIC BURDEN OF SUCH TAXES
MAY BE PASSED ON TO A STATE GOVERNMENT AND THUS INCREASE TO SOME
EXTENT, HERE WHOLLY CONJECTURAL, THE EXPENSE OF ITS OPERATION,
INFRINGES NO CONSTITUTIONAL IMMUNITY.  SUCH BURDENS ARE BUT NORMAL
INCIDENTS OF THE ORGANIZATION WITHIN THE SAME TERRITORY OF TWO
GOVERNMENTS, EACH POSSESSED OF THE TAXING POWER. 

DURING THE PRESENT TERM WE HAVE HELD THAT THE COMPENSATION OF A STATE
EMPLOYEE PAID FROM THE STATE TREASURY FOR HIS SERVICE IN LIQUIDATING AN
INSOLVENT CORPORATION, WHERE THE STATE WAS REIMBURSED FROM THE
CORPORATE ASSETS, WAS SUBJECT TO INCOME TAX.  MCLOUGHLIN V.
COMMISSIONER, 303 U.S. 218.  BUT THE COURT HAS NEVER RULED EXPRESSLY ON
THE PRECISE QUESTION WHETHER THE CONSTITUTION GRANTS IMMUNITY FROM
FEDERAL INCOME TAX TO THE SALARIES OF STATE EMPLOYEES PERFORMING, AT
THE EXPENSE OF THE STATE, SERVICES OF THE CHARACTER ORDINARILY CARRIED
ON BY PRIVATE CITIZENS.  THE REVENUE ACT OF 1917, CONSIDERED IN METCALF
& EDDY V. MITCHELL, SUPRA, EXEMPTED THE SALARIES OF ALL STATE EMPLOYEES
FROM INCOME TAX.  BUT IT WAS HELD IN THAT CASE THAT NEITHER THE
CONSTITUTIONAL IMMUNITY NOR THE STATUTORY EXEMPTION EXTENDED TO
INDEPENDENT CONTRACTORS.  IN BRUSH V. COMMISSIONER, SUPRA, THE
APPLICABLE TREASURY REGULATION UPON WHICH THE GOVERNMENT RELIED
EXEMPTED FROM INCOME TAX THE COMPENSATION OF "STATE OFFICERS AND
EMPLOYEES" FOR "SERVICES RENDERED IN CONNECTION WITH THE EXERCISE OF AN
ESSENTIAL GOVERNMENTAL FUNCTION OF THE STATE."  THE SOLE CONTENTION OF
THE GOVERNMENT WAS THAT THE MAINTENANCE OF THE NEW YORK CITY WATER
SUPPLY SYSTEM WAS NOT AN ESSENTIAL GOVERNMENTAL FUNCTION OF THE STATE. 
THE GOVERNMENT DID NOT ATTACK THE REGULATION.  NO CONTENTION WAS MADE
BY IT OR CONSIDERED OR DECIDED BY THE COURT THAT THE BURDEN OF THE TAX
ON THE STATE WAS SO INDIRECT OR CONJECTURAL AS TO BE BUT AN INCIDENT OF
THE COEXISTENCE OF THE TWO GOVERNMENTS, AND THEREFORE NOT WITHIN THE
CONSTITUTIONAL IMMUNITY.  IF DETERMINATION OF THAT POINT WAS IMPLICIT
IN THE DECISION IT MUST BE LIMITED BY WHAT IS NOW DECIDED. 

THE PERTINENT PROVISIONS OF THE REGULATION APPLICABLE IN THE BRUSH
CASE WERE CONTINUED IN REGULATIONS 77, ARTICLE 643, UNDER THE 1932
REVENUE ACT, UNTIL JANUARY 7, 1938, WHEN THEY WERE AMENDED TO PROVIDE
THAT "COMPENSATION RECEIVED FOR SERVICES RENDERED TO A STATE IS TO BE
INCLUDED IN GROSS INCOME UNLESS THE PERSON RECEIVES SUCH COMPENSATION
FROM THE STATE AS AN OFFICER OR EMPLOYEE THEREOF AND SUCH COMPENSATION
IS IMMUNE FROM TAXATION UNDER THE CONSTITUTION OF THE UNITED STATES." 
THE APPLICABLE PROVISIONS OF SEC. 116 OF THE 1932 ACT DO NOT AUTHORIZE
THE EXCLUSION FROM GROSS INCOME OF THE SALARIES OF EMPLOYEES OF A STATE
OR A STATE-OWNED CORPORATION.  IF THE REGULATION BE DEEMED TO EMBRACE
THE EMPLOYEES OF A STATEOWNED CORPORATION SUCH AS THE PORT AUTHORITY,
IT WAS UNAUTHORIZED BY THE STATUTE.  BUT WE THINK IT PLAIN THAT
EMPLOYEES OF THE PORT AUTHORITY ARE NOT EMPLOYEES OF THE STATE OR A
POLITICAL SUBDIVISION OF IT WITHIN THE MEANING OF THE REGULATION AS
ORIGINALLY PROMULGATED - AN ADDITIONAL REASON WHY THE REGULATION, EVEN
BEFORE THE 1938 AMENDMENT, WAS INEFFECTUAL TO EXEMPT THE SALARIES HERE
INVOLVED. 

THE REASONING UPON WHICH THE DECISION IN INDIAN MOTOCYCLE CO. V.
UNITED STATES, SUPRA, WAS RESTED IS NOT CONTROLLING HERE.  TAXATION OF
THE SALE TO A STATE, WHICH WAS THOUGHT SUFFICIENT TO SUPPORT THE
IMMUNITY THERE, IS NOT NOW INVOLVED.  WHETHER THE ACTUAL EFFECT UPON
THE PERFORMANCE OF THE STATE FUNCTION DIFFERED FROM THAT OF THE PRESENT
TAX WE DO NOT NOW INQUIRE.  COMPARE WHEELER LUMBER BRIDGE & SUPPLY CO.
V. UNITED STATES, 281 U.S. 572. 

AS WAS POINTED OUT IN METCALF & EDDY V. MITCHELL, SUPRA, 524, THERE
MAY BE STATE AGENCIES OF SUCH A CHARACTER AND SO INTIMATELY ASSOCIATED
WITH THE PERFORMANCE OF AN INDISPENSABLE FUNCTION OF STATE GOVERNMENT
THAT ANY TAXATION OF THEM WOULD THREATEN SUCH INTERFERENCE WITH THE
FUNCTIONS OF GOVERNMENT ITSELF AS TO BE CONSIDERED BEYOND THE REACH OF
THE FEDERAL TAXING POWER.  IF THE TAX CONSIDERED IN COLLECTOR V. DAY,
SUPRA, UPON THE SALARY OF AN OFFICER ENGAGED IN THE PERFORMANCE OF AN
INDISPENSABLE FUNCTION OF THE STATE WHICH CANNOT BE DELEGATED TO
PRIVATE INDIVIDUALS, MAY BE REGARDED AS SUCH AN INSTANCE, THAT IS NOT
THE CASE PRESENTED HERE.   EXPRESSING NO OPINION WHETHER A FEDERAL TAX
MAY BE IMPOSED UPON THE PORT AUTHORITY ITSELF WITH RESPECT TO ITS
RECEIPT OF INCOME OR ITS OTHER ACTIVITIES, WE DECIDE ONLY THAT THE
PRESENT TAX NEITHER PRECLUDES NOR THREATENS UNREASONABLY TO OBSTRUCT
ANY FUNCTION ESSENTIAL TO THE CONTINUED EXISTENCE OF THE STATE
GOVERNMENT.  SO MUCH OF THE BURDEN OF THE TAX LAID UPON RESPONDENTS'
INCOME AS MAY REACH THE STATE IS BUT A NECESSARY INCIDENT TO THE CO
EXISTENCE WITHIN THE SAME ORGANIZED GOVERNMENT OF THE TWO TAXING
SOVEREIGNS, AND HENCE IS A BURDEN THE EXISTENCE OF WHICH THE
CONSTITUTION PRESUPPOSES.  THE IMMUNITY, IF ALLOWED, WOULD IMPOSE TO AN
INADMISSIBLE EXTENT A RESTRICTION UPON THE TAXING POWER WHICH THE
CONSTITUTION HAS GRANTED TO THE FEDERAL GOVERNMENT.  REVERSED. 

FN1  IT FOLLOWS THAT IN CONSIDERING THE IMMUNITY OF FEDERAL
INSTRUMENTALITIES FROM STATE TAXATION TWO FACTORS MAY BE OF IMPORTANCE
WHICH ARE LACKING IN THE CASE OF A CLAIMED IMMUNITY OF STATE
INSTRUMENTALITIES FROM FEDERAL TAXATION.  SINCE THE ACTS OF CONGRESS
WITHIN ITS CONSTITUTIONAL POWER ARE SUPREME, THE VALIDITY OF STATE
TAXATION OF FEDERAL INSTRUMENTALITIES MUST DEPEND (A) ON THE POWER OF
CONGRESS TO CREATE THE INSTRUMENTALITY AND (B) ITS INTENT TO PROTECT IT
FROM STATE TAXATION.  CONGRESS MAY CURTAIL AN IMMUNITY WHICH MIGHT
OTHERWISE BE IMPLIED, VAN ALLEN V. THE ASSESSORS, 3 WALL.  573, OR
ENLARGE IT BEYOND THE POINT WHERE, CONGRESS BEING SILENT, THE COURT
WOULD SET ITS LIMITS.  BANK V. SUPERVISORS, 7 WALL.  26, 30, 31; SEE
THOMSON V. PACIFIC RAILROAD, 9 WALL.  579, 588, 590; SHAW V. GIBSON
ZAHNISER OIL CORP., 276 U.S. 575, 581, AND CASES CITED; JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, 161. 

THE ANALYSIS IS COMPARABLE WHERE THE QUESTION IS WHETHER FEDERAL
CORPORATE INSTRUMENTALITIES ARE IMMUNE FROM STATE JUDICIAL PROCESS. 
FEDERAL LAND BANK V. PRIDDY, 295 U.S. 229, 234-235. 

FN2  "THE PEOPLE OF ALL THE STATES HAVE CREATED THE GENERAL
GOVERNMENT, AND HAVE CONFERRED UPON IT THE GENERAL POWER OF TAXATION. 
THE PEOPLE OF ALL THE STATES, AND THE STATES THEMSELVES, ARE
REPRESENTED IN CONGRESS, AND, BY THEIR REPRESENTATIVES, EXERCISE THIS
POWER.  WHEN THEY TAX THE CHARTERED INSTITUTIONS OF THE STATES, THEY
TAX THEIR CONSTITUENTS; AND THESE TAXES MUST BE UNIFORM.  BUT, WHEN A
STATE TAXES THE OPERATIONS OF THE GOVERNMENT OF THE UNITED STATES, IT
ACTS UPON INSTITUTIONS CREATED, NOT BY THEIR OWN CONSTITUENTS, BUT BY
PEOPLE OVER WHOM THEY CLAIM NO CONTROL.  IT ACTS UPON THE MEASURES OF A
GOVERNMENT CREATED BY OTHERS AS WELL AS THEMSELVES, FOR THE BENEFIT OF
OTHERS IN COMMON WITH THEMSELVES.  THE DIFFERENCE IS THAT WHICH ALWAYS
EXISTS, AND ALWAYS MUST EXIST, BETWEEN THE ACTION OF THE WHOLE ON A
PART, AND THE ACTION OF A PART ON THE WHOLE - BETWEEN THE LAWS OF A
GOVERNMENT DECLARED TO BE SUPREME, AND THOSE OF A GOVERNMENT WHICH,
WHEN IN OPPOSITION TO THOSE LAWS, IS NOT SUPREME."  CHIEF JUSTICE
MARSHALL IN MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 435-436. 

FN3  IN THESE CASES, AND PARTICULARLY IN WESTON V. CHARLESTON, 2 PET.
449, AS IN MCCULLOCH V. MARYLAND, EMPHASIS WAS LAID ON THE FACT THAT BY
STATE ACTION AN IMPEDIMENT WAS LAID UPON THE EXERCISE OF A POWER WITH
RESPECT TO WHICH THE NATIONAL GOVERNMENT WAS SUPREME.  IN WESTON V.
CHARLESTON, SUPRA, CHIEF JUSTICE MARSHALL SAID (PP. 465, 466): 

"CAN ANYTHING BE MORE DANGEROUS, OR MORE INJURIOUS, THAN THE
ADMISSION OF A PRINCIPLE WHICH AUTHORIZES EVERY STATE AND EVERY
CORPORATION IN THE UNION WHICH POSSESSES THE RIGHT OF TAXATION, TO
BURTHEN THE EXERCISE OF THIS POWER (THE BORROWING POWER) AT THEIR
DISCRETION? 

"IF THE RIGHT TO IMPOSE THE TAX EXISTS, IT IS A RIGHT WHICH IN ITS
NATURE ACKNOWLEDGES NO LIMITS.  IT MAY BE CARRIED TO ANY EXTENT WITHIN
THE JURISDICTION OF THE STATE OR CORPORATION WHICH IMPOSES IT, WHICH
THE WILL OF EACH STATE AND CORPORATION MAY PRESCRIBE.  A POWER WHICH IS
GIVEN BY THE WHOLE AMERICAN PEOPLE FOR THEIR COMMON GOOD, WHICH IS TO
BE EXERCISED AT THE MOST CRITICAL PERIODS FOR THE MOST IMPORTANT
PURPOSES, ON THE FREE EXERCISE OF WHICH THE INTERESTS CERTAINLY,
PERHAPS THE LIBERTY OF THE WHOLE MAY DEPEND; MAY BE BURTHENED, IMPEDED,
IF NOT ARRESTED, BY ANY OF THE ORGANIZED PARTS OF THE CONFEDERACY." 
COMPARE HOLMES, J., IN PANHANDLE OIL CO. V. KNOX, 277 U.S. 218, 223. 

FN4  IN 1871, WHEN COLLECTOR V. DAY WAS DECIDED, THE COURT HAD NOT
YET BEEN CALLED ON TO DETERMINE HOW FAR THE CIVIL WAR AMENDMENTS HAD
BROADENED THE FEDERAL POWER AT THE EXPENSE OF THE STATES.  THE
SLAUGHTERHOUSE CASES, 16 WALL.  36, HAD NOT YET BEEN DECIDED, ALTHOUGH
THEY HAD ALREADY BEEN ONCE BEFORE THE COURT ON MOTION FOR SUPERSEDEAS,
10 WALL.  141.  THE FACT THAT THE TAXING POWER HAD RECENTLY BEEN USED
WITH DESTRUCTIVE EFFECT UPON A STATE INSTRUMENTALITY, VEAZIE BANK V.
FENNO, 8 WALL.  533, HAD SUGGESTED THE POSSIBILITY OF SIMILAR ATTACKS
UPON THE EXISTENCE OF STATES THEMSELVES.  COMPARE LANE COUNTY V.
OREGON, 7 WALL.  71, 76-77; SLAUGHTERHOUSE CASES, 16 WALL.  36, 82. 

FN5  COMPARE NOTES 1 AND 2, SUPRA. 

FN6  THE FOLLOWING CLASSES OF TAXPAYERS HAVE BEEN HELD SUBJECT TO
FEDERAL INCOME TAX NOTWITHSTANDING ITS POSSIBLE ECONOMIC BURDEN ON THE
STATE:  THOSE WHO DERIVE INCOME OR PROFITS FROM THEIR PERFORMANCE OF
STATE FUNCTIONS AS INDEPENDENT ENGINEERING CONTRACTORS, METCALF & EDDY
V. MITCHELL, 269 U.S. 514, OR FROM THE RESALE OF STATE BONDS, WILLCUTS
V. BUNN, 282 U.S. 216; THOSE ENGAGED AS LESSEES OF THE STATE IN
PRODUCING OIL FROM STATE LANDS, THE ROYALTIES FROM WHICH, PAYABLE TO
THE STATE, ARE DEVOTED TO PUBLIC PURPOSES, GROUP NO. 1 OIL CORP. V.
BASS, 283 U.S. 279; BURNET V. JERGINS TRUST, 288 U.S. 508; BANKLINE OIL
CO. V. COMMISSIONER, 303 U.S. 362, HELVERING V. MOUNTAIN PRODUCERS
CORP., 303 U.S. 376, OVERRULING BURNET V. CORONADO OIL & GAS CO., 285
U.S. 393.  SIMILARLY FEDERAL TAXATION OF PROPERTY TRANSFERRED AT DEATH
TO A STATE OR ONE OF ITS MUNICIPALITIES WAS UPHELD IN SNYDER V.
BETTMAN, 190 U.S. 249, CF. GREINER V. LEWELLYN, 258 U.S. 384; AND A
FEDERAL TAX ON THE TRANSPORTATION OF MERCHANDISE IN PERFORMANCE OF A
CONTRACT TO SELL AND DELIVER IT TO A COUNTY WAS SUSTAINED IN WHEELER
LUMBER BRIDGE & SUPPLY CO. V. UNITED STATES, 281 U.S. 572; CF. INDIAN
MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570.  A FEDERAL EXCISE TAX ON
CORPORATIONS, MEASURED BY INCOME, INCLUDING INTEREST RECEIVED FROM
STATE BONDS, WAS UPHELD IN FLINT V. STONE TRACY CO., 220 U.S. 107, 162,
ET SEQ.; SEE NATIONAL LIFE INS. CO. V. UNITED STATES, 277 U.S. 508,
527; COMPARE THE DISCUSSION IN EDUCATIONAL FILMS CORP. V. WARD, 282
U.S. 379, 389, AND IN PACIFIC CO., LTD. V. JOHNSON, 285 U.S. 480, 490. 

FN7  UPON FULL CONSIDERATION, THE SAME PRINCIPLE WAS RECENTLY APPLIED
IN JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134, ALTHOUGH THE
LIMITATION THERE WAS UPON THE IMMUNITY OF THE FEDERAL GOVERNMENT. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

I AGREE THAT THIS CAUSE SHOULD BE REVERSED FOR THE REASONS EXPRESSED
IN THAT PART OF THE OPINION JUST READ POINTING OUT THAT:  RESPONDENTS,
THOUGH EMPLOYEES OF THE NEW YORK PORT AUTHORITY, ARE CITIZENS OF THE
UNITED STATES; THE TAX LEVIED UPON THEIR INCOMES FROM THE AUTHORITY IS
THE SAME AS THAT PAID BY OTHER CITIZENS RECEIVING EQUAL NET INCOMES;
AND PAYMENT OF THIS NON-DISCRIMINATORY INCOME TAX BY RESPONDENTS CANNOT
IMPAIR OR DEFEAT IN WHOLE OR IN PART THE GOVERNMENTAL OPERATIONS OF THE
STATE OF NEW YORK.  A CITIZEN WHO RECEIVES HIS INCOME FROM A STATE,
OWES THE SAME OBLIGATION TO THE UNITED STATES AS OTHER CITIZENS WHO
DRAW THEIR SALARIES FROM PRIVATE SOURCES OR THE UNITED STATES AND PAY
FEDERAL INCOME TAXES. 

WHILE I BELIEVE THESE REASONS, WITHOUT MORE, ARE ADEQUATE TO SUPPORT
THE TAX, I FIND IT DIFFICULT TO RECONCILE THIS RESULT WITH THE
PRINCIPLE ANNOUNCED IN COLLECTOR V. DAY, 11 WALL.  113, AND LATER
DECISIONS APPLYING THAT PRINCIPLE.  THIS LEADS ME TO THE CONCLUSION
THAT WE SHOULD REVIEW AND REEXAMINE THE RULE BASED UPON COLLECTOR V.
DAY.  THAT COURSE WOULD LOGICALLY REQUIRE THE ENTIRE SUBJECT OF
INTERGOVERNMENTAL TAX IMMUNITY TO BE REVIEWED IN THE LIGHT OF THE
EFFECT OF THE SIXTEENTH AMENDMENT AUTHORIZING CONGRESS TO LEVY A TAX ON
INCOMES "FROM WHATEVER SOURCE DERIVED"; AND, IN THAT EVENT, THE
DECISIONS INTERPRETING THE AMENDMENT WOULD ALSO BE REEXAMINED.  FN1 

FROM TIME TO TIME, THIS COURT HAS RELIED UPON A DOCTRINE EVOLVED FROM
COLLECTOR V. DAY, UNDER WHICH INCOMES RECEIVED FROM STATE ACTIVITIES
THOUGHT BY THE COURT TO BE NON-ESSENTIAL ARE HELD TAXABLE, WHILE
INCOMES FROM ACTIVITIES THOUGHT TO BE ESSENTIAL ARE HELD NON-TAXABLE. 
THE OPINION OF THE COURT IN THIS CASE REFERS TO THAT DOCTRINE. 
APPLICATION OF THIS TEST HAS CREATED "A ZONE OF DEBATABLE GROUND WITHIN
WHICH THE CASES MUST BE PUT UPON ONE SIDE OR THE OTHER OF THE LINE BY
WHAT THIS COURT HAS CALLED THE GRADUAL PROCESS OF HISTORICAL AND
JUDICIAL 'INCLUSION AND EXCLUSION.'"  BRUSH V. COMMISSIONER, 300 U.S.
352, 365.  UNDER THIS RULE THE TAX STATUS OF EVERY STATE EMPLOYEE
REMAINS UNCERTAIN UNTIL THIS COURT PASSES UPON THE CLASSIFICATION OF
HIS PARTICULAR EMPLOYMENT.  THE RESULT IS A CONFUSION IN THE FIELD OF
INTERGOVERNMENTAL TAX IMMUNITY WHICH I BELIEVE COULD BE CLARIFIED BY
COMPLETE REVIEW OF THE SUBJECT.  TESTING TAXABILITY BY JUDICIAL
DETERMINATION THAT STATE GOVERNMENTAL FUNCTIONS ARE ESSENTIAL OR NON
ESSENTIAL, CONTRIBUTES MUCH TO THE EXISTING CONFUSION.  I BELIEVE THE
PRESENT CASE AFFORDS OCCASION FOR APPROPRIATE AND NECESSARY ABANDONMENT
OF SUCH A TEST, PARTICULARLY SINCE RECENT DECISIONS  FN2  HAVE ALREADY
SUBSTANTIALLY ADVANCED TOWARD A REEXAMINATION OF THE DOCTRINE OF
INTERGOVERNMENTAL IMMUNITY. 

THE PRESENT CONTROVERSY ILLUSTRATES THE NECESSITY FOR FURTHER
REEXAMINATION.  NEW YORK CREATED THE PORT AUTHORITY WITH POWER TO
ENGAGE IN ACTIVITIES WHICH THAT STATE BELIEVED TO BE ESSENTIAL.  YET,
UNDER THIS TEST, NEW YORK'S DETERMINATION IS NOT FINAL UNTIL REVIEWED
IN A TAX LITIGATION BETWEEN THE GOVERNMENT AND A SINGLE CITIZEN. 

CONCEPTIONS OF "ESSENTIAL GOVERNMENTAL FUNCTIONS" VARY WITH INDIVIDUAL
PHILOSOPHIES.  SOME BELIEVE THAT "ESSENTIAL GOVERNMENTAL FUNCTIONS"
INCLUDE OWNERSHIP AND OPERATION OF WATER PLANTS, POWER AND
TRANSPORTATION SYSTEMS, ETC.  OTHERS DENY THAT SUCH OWNERSHIP AND
OPERATION COULD EVER BE "ESSENTIAL GOVERNMENTAL FUNCTIONS" ON THE
GROUND THAT SUCH FUNCTIONS "COULD BE CARRIED ON BY PRIVATE
ENTERPRISE."  A FEDERAL INCOME TAX LEVIED AGAINST THE MANAGER OF THE
STATE-OPERATED ELEVATED RAILWAY COMPANY OF BOSTON WAS SUSTAINED EVEN
THOUGH THIS MANAGER WAS A PUBLIC OFFICER APPOINTED BY THE GOVERNOR OF
MASSACHUSETTS "WITH THE ADVICE AND CONSENT OF THE COUNCIL."  FN3  ON
THE OTHER HAND, THE FEDERAL GOVERNMENT WAS DENIED - ALTHOUGH WITH
STRONG DISSENT - THE RIGHT TO COLLECT AN INCOME TAX FROM THE CHIEF
ENGINEER IN CHARGE OF NEW YORK CITY'S MUNICIPALLY OWNED WATER SUPPLY. 
FN4  AN IMPLIED CONSTITUTIONAL DISTINCTION WHICH TAXES INCOME OF AN
OFFICER OF A STATE-OPERATED TRANSPORTATION SYSTEM AND EXEMPTS INCOME OF
THE MANAGER OF A MUNICIPAL WATER WORKS SYSTEM MANIFESTS THE UNCERTAINTY
CREATED BY THE "ESSENTIAL" AND "NON-ESSENTIAL" TEST. 

THERE IS NOT, AND THERE CANNOT BE, ANY UNCHANGING LINE OF DEMARCATION
BETWEEN ESSENTIAL AND NON-ESSENTIAL GOVERNMENTAL FUNCTIONS.  MANY
GOVERNMENTAL FUNCTIONS OF TODAY HAVE AT SOME TIME IN THE PAST BEEN NON
GOVERNMENTAL.  THE GENIUS OF OUR GOVERNMENT PROVIDES THAT, WITHIN THE
SPHERE OF CONSTITUTIONAL ACTION, THE PEOPLE - ACTING NOT THROUGH THE
COURTS BUT THROUGH THEIR ELECTED LEGISLATIVE REPRESENTATIVES - HAVE THE
POWER TO DETERMINE AS CONDITIONS DEMAND, WHAT SERVICES AND FUNCTIONS
THE PUBLIC WELFARE REQUIRES. 

SURELY, THE CONSTITUTION CONTAINS NO IMPERATIVE MANDATE THAT PUBLIC
EMPLOYEES - OR OTHERS - DRAWING EQUAL SALARIES (INCOME) SHOULD BE
DIVIDED INTO TAXPAYING AND NON-TAXPAYING GROUPS.  ORDINARILY SUCH A
RESULT IS DISCRIMINATION.  UNIFORM TAXATION UPON THOSE EQUALLY ABLE TO
BEAR THEIR FAIR SHARES OF THE BURDENS OF GOVERNMENT IS THE OBJECTIVE OF
EVERY JUST GOVERNMENT.  THE LANGUAGE OF THE SIXTEENTH AMENDMENT
EMPOWERING CONGRESS TO "COLLECT TAXES ON INCOMES, FROM WHATEVER SOURCE
DERIVED" - GIVEN ITS MOST OBVIOUS MEANING - IS BROAD ENOUGH TO
ACCOMPLISH THIS PURPOSE. 

FN1  SEE, BRUSHABER V. UNION PACIFIC R. CO., 240 U.S. 1; PECK & CO.
V. LOWE, 247 U.S. 165, 172; EISNER V. MACOMBER, 252 U.S. 189; EVANS V.
GORE, 253 U.S. 245. 

FN2  SEE, JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134; HELVERING V.
BANKLINE OIL CO., 303 U.S. 362; HELVERING V. MOUNTAIN PRODUCERS CORP.,
303 U.S. 376(OVERRULING GILLESPIE V. OKLAHOMA, 257 U.S. 501 AND BURNET
V. CORONADO OIL & GAS CO., 285 U.S. 393). 

FN3  HELVERING V. POWERS, 293 U.S. 214, 222, 223. 

FN4  BRUSH V. COMMISSIONER, 300 U.S. 352; CF., METCALF & EDDY V.
MITCHELL, 269 U.S. 514. 

MR. JUSTICE BUTLER, DISSENTING. 

SO FAR AS CONCERNS LIABILITY FOR FEDERAL INCOME TAX, THE SALARIES
PAID BY THE PORT AUTHORITY TO ITS OFFICERS AND EMPLOYEES ARE NOT
DISTINGUISHABLE FROM SALARIES PAID BY STATES TO THEIR OFFICERS AND
EMPLOYEES.  THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS SHOULD
THEREFORE BE AFFIRMED ON THE PRINCIPLE APPLIED IN MCCULLOCH V. MARYLAND
(1819) 4 WHEAT.  316, THAT UNDER THE CONSTITUTION STATES ARE WITHOUT
POWER TO TAX INSTRUMENTALITIES OF THE UNITED STATES AND IN COLLECTOR V.
DAY (1871) 11 WALL.  113, THAT THE UNITED STATES IS WITHOUT POWER TO
TAX THE SALARY OF A STATE OFFICER.  THAT PRINCIPLE HAS BEEN FOLLOWED IN
A LONG LINE OF DECISIONS.  IN INDIAN MOTOCYCLE CO. V. UNITED STATES
(1931) 283 U.S. 570, WE HELD THE UNITED STATES WITHOUT POWER TO TAX THE
SALE OF A MOTORCYCLE TO A MUNICIPAL CORPORATION FOR USE IN ITS POLICE
SERVICE.  THE COURT, SPEAKING THROUGH MR. JUSTICE VAN DEVANTER, SAID
(P. 575): 

"IT IS AN ESTABLISHED PRINCIPLE OF OUR CONSTITUTIONAL SYSTEM OF DUAL
GOVERNMENT THAT THE INSTRUMENTALITIES, MEANS AND OPERATIONS WHEREBY THE
UNITED STATES EXERCISES ITS GOVERNMENTAL POWERS ARE EXEMPT FROM
TAXATION BY THE STATES, AND THAT THE INSTRUMENTALITIES, MEANS AND
OPERATIONS WHEREBY THE STATES EXERT THE GOVERNMENTAL POWERS BELONGING
TO THEM ARE EQUALLY EXEMPT FROM TAXATION BY THE UNITED STATES.  THIS
PRINCIPLE IS IMPLIED FROM THE INDEPENDENCE OF THE NATIONAL AND STATE
GOVERNMENTS WITHIN THEIR RESPECTIVE SPHERES AND FROM THE PROVISIONS OF
THE CONSTITUTION WHICH LOOK TO THE MAINTENANCE OF THE DUAL SYSTEM. 
COLLECTOR V. DAY, 11 WALL.  113, 125, 127; WILLCUTS V. BUNN, 282 U.S.
216, 224-225.  WHERE THE PRINCIPLE APPLIES IT IS NOT AFFECTED BY THE
AMOUNT OF THE PARTICULAR TAX OR THE EXTENT OF THE RESULTING
INTERFERENCE, BUT IS ABSOLUTE.  MCCULLOCH V. MARYLAND, 4 WHEAT.  316,
430; UNITED STATES V. BALTIMORE & OHIO R. CO., 17 WALL.  322, 327;
JOHNSON V. MARYLAND, 254 U.S. 51, 55-56; GILLESPIE V. OKLAHOMA, 257
U.S. 501, 505; CRANDALL V. NEVADA, 6 WALL.  35, 44-46." 

FOLLOWING THAT CASE, WE RECENTLY APPLIED THE PRINCIPLE IN N.Y. EX
REL. ROGERS V. GRAVES (JANUARY 4, 1937) 299 U.S. 401, TO PREVENT THE
STATE OF NEW YORK FROM TAXING THE SALARY OF COUNSEL OF THE PANAMA
RAILWAY COMPANY, A FEDERAL INSTRUMENTALITY, AND IN BRUSH V.
COMMISSIONER (MARCH 15, 1937) 300 U.S. 352, TO PREVENT THE UNITED
STATES FROM TAXING THE SALARY OF THE CHIEF ENGINEER OF THE BUREAU OF
WATER SUPPLY FOR THE CITY OF NEW YORK.  IN HELVERING V. THERRELL
(FEBRUARY 28, 1938) 303 U.S. 218, HOLDING THAT THE FEDERAL GOVERNMENT
HAS POWER TO TAX COMPENSATION PAID TO ATTORNEYS AND OTHERS OUT OF
CORPORATE ASSETS FOR NECESSARY SERVICES RENDERED ABOUT THE LIQUIDATION
OF INSOLVENT CORPORATIONS BY STATE OFFICERS PROCEEDING UNDER HER
STATUTES, WE SAID (P. 223): 

"AMONG THE INFERENCES WHICH DERIVE NECESSARILY FROM THE CONSTITUTION
ARE THESE:  NO STATE MAY TAX APPROPRIATE MEANS WHICH THE UNITED STATES
MAY EMPLOY FOR EXERCISING THEIR DELEGATED POWERS; THE UNITED STATES MAY
NOT TAX INSTRUMENTALITIES WHICH A STATE MAY EMPLOY IN THE DISCHARGE OF
HER ESSENTIAL GOVERNMENTAL DUTIES - THAT IS THOSE DUTIES WHICH THE
FRAMERS INTENDED EACH MEMBER OF THE UNION WOULD ASSUME IN ORDER
ADEQUATELY TO FUNCTION UNDER THE FORM OF GOVERNMENT GUARANTEED BY THE
CONSTITUTION." 

THE COURT SEEMINGLY ADMITTING THAT IT WOULD BE FUTILE TO ATTEMPT TO
DISTINGUISH THE CASES NOW BEFORE US FROM THE BRUSH CASE, OVERRULES IT
BY DECLARING THAT IT MUST BE LIMITED BY WHAT IS NOW DECIDED.  THE
SOLICITOR GENERAL DID NOT IN ANY MANNER RAISE THE POINT ON WHICH THE
COURT PUTS THIS DECISION.  HE SOUGHT REVERSAL ON THE GROUNDS THAT THE
PORT AUTHORITY'S ACTIVITIES ARE PROPRIETARY IN NATURE; THAT IT IS NOT
AN AGENCY CREATED BY THE STATES ALONE; THAT IT OPERATES IN INTERSTATE
COMMERCE SUBJECT TO THE PARAMOUNT POWER OF CONGRESS.  INDEED, HE
EXPRESSLY DISCLAIMED INTENTION TO ASK RE-EXAMINATION OF THE DOCTRINE OF
IMMUNITY ON WHICH THE BRUSH CASE RESTS.  IN SUBSTANCE, AS WELL AS IN
THE LANGUAGE USED, THE DECISION JUST ANNOUNCED SUBSTITUTES FOR THAT
DOCTRINE THE PROPOSITION THAT, ALTHOUGH THE FEDERAL TAX MAY INCREASE
COST OF STATE GOVERNMENTS, IT MAY BE IMPOSED IF IT DOES NOT CURTAIL
FUNCTIONS ESSENTIAL TO THEIR EXISTENCE.  EXPRESSLY OR SUB SILENTIO, IT
OVERRULES A CENTURY OF PRECEDENTS.  CF. JAMES V. DRAVO CONTRACTING CO.
(DECEMBER 6, 1937) 302 U.S. 134, 152, 161; HELVERING V. MOUNTAIN
PRODUCERS CORPORATION (MARCH 7, 1938) 303 U.S. 376.  AS THEY STOOD WHEN
THE CASES NOW BEFORE US WERE IN THE CIRCUIT COURT OF APPEALS, OUR
DECISIONS REQUIRED IT TO HOLD THAT THE SALARIES PAID BY THE PORT
AUTHORITY TO RESPONDENTS ARE NOT SUBJECT TO FEDERAL TAXATION.  I WOULD
AFFIRM ITS JUDGMENTS. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 
..END :




















AETNA INS. CO. V. UNITED FRUIT CO., 304 U.S. 430 


NO. 773.  ARGUED APRIL 25, 26, 1938.  - DECIDED MAY 23, 1938.  - 92 F.2D
576, AFFIRMED. 


1.  THE PURPOSE OF A STIPULATION FIXING THE VALUE OF THE VESSEL IN A
MARINE HULL INSURANCE POLICY UNDERTAKING TO INDEMNIFY INSURED
IRRESPECTIVE OF THE ACTUAL VALUE IS TO DISPENSE WITH PROOF OF VALUE IN
ESTABLISHING THE EXTENT OF LIABILITY ASSUMED ON THE POLICY.  P. 434. 

2.  SUCH A VALUATION CLAUSE, BEYOND ITS CONTROLLING EFFECT IN
DETERMINING THE INSURANCE LIABILITY, DOES NOT OPERATE, EITHER AS AN
ESTOPPEL OR BY AGREEMENT, TO EXCLUDE PROOF OF ACTUAL VALUE, WHEN
RELEVANT.  P. 435. 

3.  THE VALUED POLICY, LIKE AN OPEN POLICY, IS A CONTRACT OF
INDEMNITY; IN EITHER CASE THE INDEMNITOR IS ENTITLED TO SHARE IN THE
INSURED'S RECOVERY OF DAMAGES FOR LOSS OF THE SHIP ONLY BY WAY OF
SUBROGATION, THE SOLE OBJECT OF WHICH IS TO MAKE INDEMNITY TO THE
INSURED UP TO THE AMOUNT OF THE POLICY THE MEASURE OF THE LIABILITY OF
THE INSURER.  P. 436. 

4.  THERE IS NO ANALOGY BETWEEN THE INSURER'S RIGHT TO BE SUBROGATED
TO THE FRUITS OF THE INSURED'S RECOVERY FROM A WRONGDOER AND THE
INSURER'S RIGHT TO A WRECK WHICH IS HIS BY ABANDONMENT.  P. 437. 

5.  UNDERWRITERS INSURED THE HULL OF A VESSEL BY POLICIES IN WHICH
THE VALUE OF THE HULL WAS AGREED UPON AT AN AMOUNT STATED, AND EACH OF
WHICH PROVIDED FOR A STIPULATED INDEMNITY TO THE OWNER IRRESPECTIVE OF
THE ACTUAL VALUE OF THE VESSEL.  THE AGREED VALUE WAS LESS THAN THE
ACTUAL VALUE OF THE HULL, SO THAT THE OWNER WAS UNINSURED FOR THE
DIFFERENCE.  AS PROTECTION AGAINST THE RISK, THE OWNER PROCURED FROM
ENGLISH UNDERWRITERS ADDITIONAL P.P.I. (POLICY PROOF OF INTEREST)
POLICIES, WHICH WAIVED ALL RIGHT OF SUBROGATION AND WERE "HONOR"
POLICIES PAYABLE ONLY AT THE OPTION OF THE INSURERS BECAUSE
UNENFORCEABLE UNDER THE APPLICABLE ACT OF PARLIAMENT.  UPON A TOTAL
LOSS OF THE VESSEL BY COLLISION WITH A VESSEL OF THE UNITED STATES, ALL
THE POLICIES WERE PAID IN FULL.  THEREAFTER THE OWNER AND THE
UNDERWRITERS UPON THE VALUED POLICIES JOINED IN PRESSING THEIR CLAIMS
AGAINST THE UNITED STATES, AND, IN A SUIT UNDER A SPECIAL ACT OF
CONGRESS NOT ALLOWING RECOVERY OF INTEREST, THERE WAS RECOVERY OF THE
VALUE OF THE VESSEL, MUCH EXCEEDING THE TOTAL INSURANCE.  HELD THAT IN
THE ADJUSTMENT, THE INSURERS UPON THE VALUED POLICIES WERE ENTITLED BY
WAY OF SUBROGATION TO NO MORE THAN THE AMOUNTS THEY HAD PAID ON THEIR
POLICIES, WITHOUT INTEREST, LESS THEIR RESPECTIVE SHARES OF THE
EXPENSES ATTENDING THE RECOVERY.  NORTH OF ENGLAND IRON S.S. INS. ASSN.
V. ARMSTRONG, (1870) L.R. 5 Q.B. 244, DISAPPROVED.  P. 438. 

THE INSURERS SUBMITTED NO INTEREST COMPUTATIONS AND MADE NO EFFORT TO
SUSTAIN THE BURDEN OF PROVING THAT THE OWNER HAD RECEIVED MORE THAN
INDEMNITY FOR THE DELAY IN PAYMENT OF SO MUCH OF THE LOSS AS WAS NOT
COVERED BY INSURANCE. 

AETNA INSURANCE CO. V. UNITED FRUIT CO.* 

*TOGETHER WITH NO. 774, UNION MARINE & GENERAL INS. CO. V. UNITED
FRUIT CO., AND NO. 775, BOSTON INSURANCE CO. V. SAME, ALSO ON WRITS OF
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 303 U.S. 631, TO REVIEW AFFIRMANCES, WITH MODIFICATIONS,
OF JUDGMENTS FOR INTEREST AND EXPENSES RECOVERED BY THREE MARINE
INSURANCE COMPANIES IN ACTIONS AT LAW AGAINST THE OWNER OF A LOST
VESSEL.  BY AGREEMENT, THE ACTIONS WERE TRIED TOGETHER TO THE COURT AND
ONE JUROR.  THE TRIAL COURT DIRECTED VERDICTS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS HOW FAR HULL INSURERS UPON A VALUED
MARINE INSURANCE POLICY ARE ENTITLED, IN CASE OF TOTAL LOSS, TO
PARTICIPATE BY WAY OF SUBROGATION IN A RECOVERY BY THE INSURED AGAINST
A TORTFEASOR RESPONSIBLE FOR THE LOSS. 

IN 1918 PETITIONERS, WITH SEVERAL OTHER UNDERWRITERS, INSURED THE
HULL OF RESPONDENT'S VESSEL, THE "ALMIRANTE," BY POLICIES IN WHICH IT
WAS AGREED THAT THE VALUE OF THE HULL WAS $632,610, MATERIALLY LESS
THAN ITS TRUE VALUE.  THE POLICIES PROVIDED FOR A STIPULATED INDEMNITY
TO THE OWNER "IRRESPECTIVE OF THE VALUE OF THE VESSEL," AND THAT THE
OWNER WAS FREE TO EFFECT OTHER INSURANCE TO ANY AMOUNT AND WITHOUT
DISCLOSURE OF THE AMOUNTS SO INSURED.  AS THE TOTAL OF THE VALUED
POLICIES WAS $582,002.25, RESPONDENT WAS CO-INSURER FOR ABOUT $50,000;
AND SO FAR AS THE VALUED HULL POLICIES WERE CONCERNED IT WAS UNINSURED,
TO THE EXTENT OF ANY LOSS, IN EXCESS OF THE STIPULATED VALUE.  AS
PROTECTION AGAINST THESE RISKS, RESPONDENT PROCURED FROM ENGLISH
UNDERWRITERS ADDITIONAL P.P.I. (POLICY PROOF OF INTEREST) INSURANCE,
AGGREGATING $*65,105, PARTLY UPON HULL AND PARTLY AGAINST OTHER LOSSES
INCIDENTAL TO TOTAL LOSS OF THE VESSEL.  THE P.P.I. POLICIES WAIVED ALL
RIGHTS OF SUBROGATION AND WERE "HONOR" POLICIES, CONCEDEDLY PAYABLE
ONLY AT THE OPTION OF THE INSURERS BECAUSE UNENFORCEABLE UNDER THE ACT
OF PARLIAMENT OF DECEMBER 31, 1906, SEC. 4.  EDWARDS & CO. V. MOTOR
UNION INS. CO., (1922) 2 K.B.D. 249. 

IN 1918 THE "ALMIRANTE" BECAME A TOTAL LOSS AS THE RESULT OF A
COLLISION WITH THE S.S. "HISKO," A VESSEL BELONGING TO THE UNITED
STATES GOVERNMENT.  THE UNDERWRITERS OF BOTH THE VALUED POLICIES AND
THE P.P.I. POLICIES PAID THEM IN FULL.  THE FORMER JOINED WITH
RESPONDENT IN RETAINING ATTORNEYS TO PRESS THE CLAIMS FOR COLLISION
DAMAGES AGAINST THE UNITED STATES.  SUIT BROUGHT AGAINST THE UNITED
STATES UNDER A SPECIAL ACT OF CONGRESS, RESULTED IN A RECOVERY WHICH
INCLUDED $1,750,000 AS THE VALUE OF THE VESSEL, BUT WITHOUT INTEREST
SINCE THE ACT DID NOT AUTHORIZE ALLOWANCE OF INTEREST.  COMPARE BOSTON
SAND & GRAVEL CO. V. UNITED STATES, 278 U.S. 41, 47.  DISTRIBUTION OF
THE PROCEEDS OF THE SUIT WAS MADE IN ACCORDANCE WITH A COMPUTATION BY
INSURANCE ADJUSTERS WHO APPORTIONED THE EXPENSES OF THE SUIT AMONG
RESPONDENT AND THE UNDERWRITERS, AND ALLOTTED TO THE LATTER THE AMOUNTS
THEY HAD PAID ON THEIR POLICIES WITHOUT INTEREST, LESS THEIR RESPECTIVE
SHARES OF THE EXPENSES. 

PETITIONERS, WHO ARE UNDERWRITERS ON SOME OF THE VALUED HULL
POLICIES, BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT FOR SOUTHERN
NEW YORK TO PARTICIPATE IN RESPONDENT'S RECOVERY AGAINST THE UNITED
STATES.  RELYING ON THE VALUATION CLAUSE OF THEIR POLICIES AS
CONCLUSIVELY FIXING THE VALUE OF THE VESSEL FOR ALL PURPOSES OF THE
ADJUSTMENT, THEY CONTEST THE ALLOTMENT, INSISTING THAT THEY SHOULD BEAR
NO PART OF THE EXPENSES, AND THAT THEY ARE ENTITLED TO INTEREST ON THE
AMOUNTS OF THEIR POLICIES FROM THE SEVERAL DATES ON WHICH THEY WERE
PAID.  THEY ALSO MAKE, BUT DO NOT STRESS HERE, THE POINT THAT THE HULL
INSURERS ARE ENTITLED TO THE WHOLE RECOVERY.  THE DISTRICT COURT GAVE
JUDGMENT FOR THE FULL AMOUNT WHICH PETITIONERS HAD PAID ON THEIR
POLICIES WITHOUT DEDUCTION FOR EXPENSES, BUT WITHOUT ADDITION OF
INTEREST.  18 F.SUPP.  441.  ON APPEAL BY BOTH PARTIES, THE COURT OF
APPEALS HELD THAT PETITIONERS WERE ENTITLED TO NEITHER INTEREST NOR
EXPENSES, AND MODIFIED THE JUDGMENT ACCORDINGLY.  92 F.2D 576.  WE
GRANTED CERTIORARI, 303 U.S. 631, BECAUSE OF THE ADMITTED CONFLICT OF
THE DECISION BELOW WITH THAT OF THE COURT OF QUEEN'S BENCH IN NORTH OF
ENGLAND IRON S.S. INS. ASSN. V. ARMSTRONG (1870) L.R. 5 Q.B. 244.  SEE
QUEEN INSURANCE CO. V. GLOBE & RUTGERS FIRE INS. CO., 263 U.S. 487,
493; GULF REFINING CO. V. ATLANTIC MUTUAL INS. CO., 279 U.S. 708, 715. 

PETITIONERS' ARGUMENT TURNS UPON THEIR CONTENTION THAT THE VALUATION
CLAUSE, EITHER BY ESTOPPEL OR BY CONTRACT, IS CONCLUSIVE BETWEEN THE
PARTIES FOR ALL PURPOSES AND THAT AS RESPONDENT HAS RECOVERED FROM THE
GOVERNMENT MORE THAN THE STIPULATED VALUE OF THE VESSEL, PETITIONERS
ARE ENTITLED TO THE BENEFIT OF THE RECOVERY, AT LEAST TO THE FULL
EXTENT OF THE PAYMENTS ON THEIR POLICIES WITH INTEREST.  WE THINK THAT
THE VALUATION CLAUSE IN ITS USUAL FORM DOES NOT OPERATE AS AN ESTOPPEL
OR BY AGREEMENT TO FORECLOSE PROOF THAT ACTUAL VALUE EXCEEDS AGREED
VALUE WHEN THE QUESTION IS OF THE INSURER'S RIGHT TO SUBROGATION.  THE
APPLICATION OF THE AGREED VALUE TO THE INSURANCE ADJUSTMENT DOES NOT
DEPEND UPON ESTOPPEL, GULF REFINING CO. V. ATLANTIC MUTUAL INS. CO.,
SUPRA, 712; BRITISH & FOREIGN MARINE INS. CO. V. MALDONADO & CO., 182
F. 744, AND THERE CAN BE NO BASIS FOR AN ESTOPPEL AT LEAST WHERE, AS
HERE, THE POLICY PROVISIONS UNDERTAKE TO INDEMNIFY THE INSURED
IRRESPECTIVE OF THE VALUE OF THE VESSEL AND CONTEMPLATE THAT THE
INSURED MAY EFFECT OTHER INSURANCE.  THE VALUATION STIPULATION FIXES IN
ADVANCE OF LOSS THE VALUE OF THE VESSEL, SO AS TO AVOID THE NECESSITY
OF PROOF OF VALUE IN ORDER TO ESTABLISH THE EXTENT OF THE LIABILITY
ASSUMED ON THE POLICY.  THE AGREED VALUE, HONESTLY ARRIVED AT, THUS
STANDS IN THE PLACE OF PRIME VALUE UNDER AN OPEN MARINE POLICY, GULF
REFINING CO. V. ATLANTIC MUTUAL INS. CO., SUPRA, 711; ST. PAUL FIRE &
MARINE INS. CO. V. PURE OIL CO., 63 F.2D 771, AND RESEMBLES, IN ITS
PRACTICAL OPERATION, A STIPULATION FOR LIQUIDATED DAMAGES. 

BUT BEYOND ITS CONTROLLING EFFECT IN DETERMINING THE INSURANCE
LIABILITY, THE CLAUSE DOES NOT OPERATE TO EXCLUDE PROOF OF ACTUAL VALUE
WHEN RELEVANT.  EVEN IN AN ACTION ON THE POLICY THE ACTUAL RATHER THAN
THE AGREED VALUE HAS BEEN HELD TO BE CONTROLLING FOR THE PURPOSE OF
DETERMINING WHETHER THERE IS A CONSTRUCTIVE TOTAL LOSS.  BRADLIE V.
MARYLAND INS. CO., 12 PET. 378, 399; IRVING V. MANNING, 6 C.B. 391(H.
OF L.).  IN THE CASE OF PARTIAL INSURANCE OF CARGO UNDER A VALUED
POLICY THE INSURED IS TREATED AS A CO-INSURER AND IS ALLOWED TO RECOVER
ON THE POLICY ONLY SUCH PROPORTION OF THE LOSS AS THE INSURED VALUE
BEARS TO THE ACTUAL VALUE, A COMPUTATION WHICH NECESSARILY REQUIRES
PROOF OF THE ACTUAL VALUE IN ORDER TO ESTABLISH THE CO-INSURANCE
RELATIONSHIP.  GULF REFINING CO. V. ATLANTIC MUTUAL INS. CO., SUPRA,
710-711; SEE INTERNATIONAL NAVIGATION CO. V. ATLANTIC MUTUAL INS. CO.,
100 F. 304, 318, AFF'D PER CURIAM 108 F. 987; ARNOULD ON MARINE
INSURANCE, 11TH EDITION, SEC. 340; ELDRIDGE ON MARINE POLICIES, 2ND
EDITION, P. 90.  IT IS TRUE, AS WAS POINTED OUT IN GULF REFINING CO. V.
ATLANTIC MUTUAL INS. CO., SUPRA, THAT IN CASE OF VALUED HULL POLICIES
LOSSES RESULTING IN REPAIRS ARE CUSTOMARILY PAID IN FULL, NOT BECAUSE
OF AGREEMENT OR ESTOPPEL BUT BECAUSE PARTIAL LOSSES TO HULL USUALLY
RESULT IN REPAIRS WITHOUT ANY VALUATION OF THE HULL AND THE RULE THAT
THE RECOVERY SHALL BE MEASURED BY REPAIRS HAS BEEN FOUND MORE
CONVENIENT IN PRACTICE THAN ONE REQUIRING DETERMINATION OF THE SOUND
VALUE OF THE SHIP.  SEE LOHRE V. AITCHISON, L.R. 2 Q.B.D. 501, 507. 
THE SAME RULE AS IN THE CASE OF CARGO INSURANCE HAS BEEN APPLIED WHEN
REPAIRS WERE NOT MADE, AND VALUE WAS ESTABLISHED BY THE SALE OF THE
VESSEL, PITMAN V. UNIVERSAL MARINE INS. CO., L.R. 9 Q.B.D. 192, AND IN
THE CASE OF GENERAL AVERAGE CONTRIBUTION BY THE HULL.  S.S. "BALMORAL"
CO. V. MARTEN, (1902) APP. CAS. 511, 514, 515.  THE PECULIAR RULE OF
THE INSURER'S LIABILITY FOR PARTIAL LOSS TO HULL WHEN REPAIRS ARE MADE
DOES NOT DEPEND ON THE VALUATION CLAUSE AND AFFORDS NO BASIS FOR
TREATING IT AS EXCLUDING THE INSURED AS CO-INSURER WHEN THERE IS A
TOTAL LOSS. 

THESE VARIATIONS IN THE EFFECT OF THE VALUATION CLAUSE, IN FIXING THE
LIABILITY OF THE INSURER, DO NOT ALTER THE CHARACTER OF THE VALUED
POLICY AS A CONTRACT OF INDEMNITY, OR AFFORD ANY BASIS FOR ALTERATION
OF HIS RIGHTS AS AN INDEMNITOR.  WHETHER UPON A VALUED OR AN OPEN
POLICY, HE IS ENTITLED TO SHARE IN THE INSURED'S RECOVERY OF DAMAGES
ONLY BY WAY OF SUBROGATION, WHOSE SOLE OBJECT AND JUSTIFICATION IS TO
MAKE INDEMNITY TO THE INSURED UP TO THE AMOUNT OF THE POLICY, THE
MEASURE OF THE LIABILITY OF THE INSURER.  STANDARD MARINE INS. CO. V.
SCOTTISH METROPOLITAN ASSURANCE CO., 283 U.S. 284, 288; AETNA CASUALTY
& SURETY CO. V. PHOENIX NATIONAL BANK & TRUST CO., 285 U.S. 209, 214;
CHAPMAN V. HOAGE, 296 U.S. 526, 531.  THE DOCTRINE NOW CONTENDED FOR,
WOULD REQUIRE A RADICAL DEPARTURE FROM THE PRINCIPLE ON WHICH
SUBROGATION IS FOUNDED.  CONSISTENTLY APPLIED, IT WOULD IN SOME CASES
DEPRIVE THE INSURED OF INDEMNITY, AND INDEED MIGHT ENABLE THE INSURER
TO MAKE A PROFIT BY RECOVERING MORE FROM THE INSURED THAN THE AMOUNTS
PAID ON THE POLICY.  WE ARE UNABLE TO SANCTION A DOCTRINE INVOLVING
SUCH CONSEQUENCES. 

NO QUESTION IS RAISED BY THE PETITION FOR CERTIORARI OR APPEARS TO
HAVE BEEN RAISED BELOW AS TO THE CORRECTNESS OF THE ADJUSTMENT
STATEMENT, IF THE VALUATION CLAUSE DOES NOT FORECLOSE PROOF OF ACTUAL
VALUE AND IF RESPONDENT IS THEREFORE TO BE REGARDED AS A CO-INSURER OF
THE HULL IN EVENT OF TOTAL LOSS.  PETITIONERS MAKE NO CONTENTION THAT
RESPONDENT, IF SO REGARDED, HAS RECEIVED MORE THAN APPROPRIATE
INDEMNITY AFTER THE DISTRIBUTION OF THE PROCEEDS OF THE COLLISION
SUIT.  THE TOTAL INSURANCE RECEIVED BY RESPONDENT FROM THE INSURERS IN
1918 AND 1919, AGGREGATING $886,068, WAS APPROXIMATELY $863,932 LESS
THAN THE PRIME VALUE OF THE VESSEL, WHICH SOME THIRTEEN YEARS LATER IT
RECOVERED IN THE COLLISION SUIT, WITHOUT ALLOWANCE OF INTEREST AND
AFTER THE EXPENDITURE OF MORE THAN $300,000 AS COSTS OF THE
LITIGATION.  PETITIONERS SUBMIT NO INTEREST COMPUTATIONS AND HAVE
OTHERWISE MADE NO EFFORT TO SUSTAIN THE BURDEN OF PROVING THAT
RESPONDENT HAS RECEIVED MORE THAN INDEMNITY FOR THE DELAY IN PAYMENT OF
AS MUCH OF THE LOSS AS WAS NOT COVERED BY INSURANCE. 

SINCE THE EXPENSES HAVE BEEN APPORTIONED BY CHARGING THE INSURED WITH
A PROPORTION GREATER THAN ITS SHARE OF THE RISK, AND THE APPORTIONMENT
IS NOT ASSAILED EXCEPT AS IT MAY BE WHOLLY PRECLUDED BY THE VALUATION
CLAUSE, IT IS UNNECESSARY TO CONSIDER WHETHER THE DISTRIBUTION OF
EXPENSE SHOULD BE UPON PRINCIPLES OF CO-INSURANCE OR WHETHER THE
INSURED SHOULD BE FULLY INDEMNIFIED FOR IT BEFORE THE INSURER IS
ENTITLED TO SUBROGATION. 

PETITIONERS POINT TO NO PRACTICE OF UNDERWRITERS WITH RESPECT TO THE
VALUED POLICY OR ITS RATE OF PREMIUM AS COMPARED WITH THAT FOR THE OPEN
POLICY, WHICH SUPPORTS THE RULE FOR WHICH THEY CONTEND.  BUT THEY
INSIST THAT IT HAS BEEN ADOPTED IN ENGLAND AND HAS BECOME SO WELL
SETTLED IN NEW YORK WHERE THE INSURANCE WAS EFFECTED, THAT IT MUST BE
TAKEN TO BE AN IMPLIED TERM OF THE POLICIES.  IT IS TRUE THAT NORTH OF
ENGLAND IRON S.S. INS. ASSN. V. ARMSTRONG, SUPRA, LENDS SUPPORT TO
PETITIONERS' ARGUMENT.  THERE, UPON A TOTAL LOSS, THE INSURED HAD
RECOVERED AS COLLISION DAMAGES AN AMOUNT LESS THAN THE AGREED VALUATION
AND IT WAS HELD THAT THE INSURER, WHO HAD PAID THE POLICY IN FULL, WAS
ENTITLED TO HAVE THE BENEFIT OF THE ENTIRE RECOVERY.  THE COURT THOUGHT
THAT THE CASE WAS ANALOGOUS TO THAT OF ABANDONMENT IN CASE OF A
CONSTRUCTIVE TOTAL LOSS WHERE THE UNDERWRITER, BY VIRTUE OF THE
ABANDONMENT, IS ENTITLED TO THE WRECK AND TO SUCH PROFIT FROM IT AS HE
CAN MAKE.  PURSUING THE LOGIC OF ITS REASONING, THE COURT DECLARED THAT
THE INSURER WOULD HAVE BEEN ENTITLED TO THE INSURED'S FULL RECOVERY
EVEN IF IT EXCEEDED THE AGREED VALUE.  BUT IT SEEMS PLAIN THAT THERE IS
NO ANALOGY BETWEEN THE INSURER'S RIGHT TO BE SUBROGATED TO THE FRUITS
OF THE INSURED'S RECOVERY FROM A WRONGDOER AND THE INSURER'S RIGHT TO A
WRECK WHICH IS HIS BY ABANDONMENT.  THE POTOMAC, 105 U.S. 630, 634; THE
ST. JOHNS, 101 F. 469, 472(S.D.N.Y.); ARNOULD ON MARINE INSURANCE, 11TH
EDITION, SECS. 1228-1230. 

NORTH OF ENGLAND IRON S.S. INS. ASSN. V. ARMSTRONG, SUPRA, WAS CITED
IN THE POTOMAC, SUPRA, 635, AND IN MOBILE & MONTGOMERY RY. CO. V.
JUREY, 111 U.S. 584, 594, 595, NEITHER OF WHICH INVOLVED THE QUESTION
NOW PRESENTED.  IT WAS FOLLOWED IN THE ST. JOHNS, BUT NOT TO THE EXTENT
OF ALLOWING A PROFIT TO THE INSURER.  IN THE LIVINGSTONE, 130 F.
746(C.C.A. 2), THE CLAIM OF A VALUED HULL INSURER TO THE WHOLE
COLLISION RECOVERY, WHICH EXCEEDED THE AGREED VALUE, WAS DENIED UPON
REASONING WHICH REJECTED THAT OF NORTH OF ENGLAND IRON S.S. INS. ASSN.
V. ARMSTRONG, SUPRA, AND THE ST. JOHNS, SUPRA, AND CALLS FOR AFFIRMANCE
OF THE JUDGMENT HERE.  INTEREST WAS ALLOWED TO THE INSURER, APPARENTLY
BECAUSE INTEREST ON THE FULL VALUE OF THE VESSEL HAD BEEN RECOVERED IN
THE DAMAGE SUIT.  WITHOUT DISCUSSING THE POINT THE COURT BY ITS MANDATE
DIRECTED PAYMENT TO THE UNDERWRITERS OF THE FULL AMOUNT OF THEIR
POLICIES WITHOUT DEDUCTION FOR EXPENSES.  BUT AS IT CONSIDERED THAT THE
INSURER'S RIGHT OF RECOVERY RESTED UPON SUBROGATION UNAFFECTED BY THE
VALUATION CLAUSE, WE CANNOT REGARD THE CASE AS AN INTENTIONAL DEPARTURE
FROM THE RULE THAT THE INSURER IS ENTITLED TO SUBROGATION ONLY AFTER
THE INSURED IS APPROPRIATELY INDEMNIFIED, OR AS ESTABLISHING ANY RULE
THAT THE VALUATION CLAUSE FORECLOSES PROOF OF ACTUAL VALUE AS A STEP IN
MEASURING THE INSURER'S RECOVERY BY WAY OF SUBROGATION.    WE RECOGNIZE
THAT ESTABLISHED DOCTRINES OF ENGLISH MARITIME LAW ARE TO BE ACCORDED
RESPECT HERE, QUEEN INS. CO. V. GLOBE & RUTGERS FIRE INS. CO., SUPRA,
493; GULF REFINING CO. V. ATLANTIC MUTUAL INS. CO., SUPRA, 715, BUT THE
PRONOUNCEMENT IN NORTH OF ENGLAND IRON S.S. INS. ASSN. V. ARMSTRONG,
SUPRA, HAS NEVER BEEN ADOPTED BY AN ENGLISH APPELLATE COURT.  IT WAS
DOUBTED BY EMINENT JUDGES IN BURNAND V. RODOCANACHI SONS & CO., (1882)
L.R. 7 APP. CAS. 333, 342, AND IN THAMES & MERSEY MARINE INS. CO. V.
BRITISH & CHILEAN S.S. CO., (1915) L.R. 2 K.B. 214, 221.  ITS
REASONING, CONFLICTING AS IT DOES WITH ESTABLISHED PRINCIPLES OF
MARITIME INSURANCE LAW, AND FOUND TO BE INCAPABLE OF CONSISTENT
APPLICATION BOTH IN THE ST. JOHNS, SUPRA, 474-475, AND IN THE
LIVINGSTONE, SUPRA, 750, SHOULD BE REJECTED HERE.  AFFIRMED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





ALLEN V. REGENTS, 304 U.S. 439 


NO. 882.  ARGUED APRIL 28, 29, 1938.  - DECIDED MAY 23, 1938.  - 93 F.2D
887, REVERSED. 


1.  SUBSTITUTION OF THE OFFICIAL SUCCESSOR TO A COLLECTOR OF INTERNAL
REVENUE WHO RESIGNED AND DIED PENDING A SUIT TO RESTRAIN COLLECTION OF
A TAX ASSESSMENT, HELD PROPER UNDER SEC. 11, ACT OF FEBRUARY 13, 1925. 
P. 444. 

2.  R.S. SEC. 3224, PROVIDING THAT "NO SUIT FOR THE PURPOSE OF
RESTRAINING THE COLLECTION OR ASSESSMENT OF ANY TAX SHALL BE MAINTAINED
IN ANY COURT," IS INAPPLICABLE IN EXCEPTIONAL CASES WHERE THERE IS NO
PLAIN, ADEQUATE AND COMPLETE REMEDY AT LAW.  P. 445. 

3.  A CORPORATION, CREATED BY A STATE AS AN INSTRUMENTALITY OF THE
STATE, AND HAVING CONTROL AND MANAGEMENT OF STATE EDUCATIONAL
INSTITUTIONS, SOUGHT TO RESTRAIN COLLECTION BY DISTRAINT OF SUMS
ASSESSED BY THE COMMISSIONER OF INTERNAL REVENUE IN CONSEQUENCE OF
NEGLECT TO COLLECT AND PAY OVER THE FEDERAL TAX, REVENUE ACT OF 1926,
SEC. 500(A)(1), AS AMENDED, ON ADMISSIONS TO INTERCOLLEGIATE FOOTBALL
GAMES PLAYED AT THOSE INSTITUTIONS.  THE CORPORATION CONTENDED THAT THE
EXACTION WOULD UNCONSTITUTIONALLY BURDEN A GOVERNMENTAL ACTIVITY OF THE
STATE.  THE TICKETS OF ADMISSION TO THE GAMES IN QUESTION BORE PRINTED
NOTICES TO THE EFFECT THAT THE CORPORATION WAS NOT LIABLE FOR ANY
ADMISSION TAX, BUT THAT AN AMOUNT EQUIVALENT THERETO WAS BEING
COLLECTED AS PART OF THE PRICE OF ADMISSION AND WOULD BE RETAINED AS
SUCH, UNLESS IT SHOULD LATER BE DETERMINED THAT THE CORPORATION WAS
LIABLE FOR THE TAX.  HELD, THE SUIT WAS WITHIN THE EQUITY JURISDICTION
OF THE FEDERAL COURT.  PP. 445, 448. 

THE STATE WAS ENTITLED TO A DETERMINATION OF THE QUESTION WHETHER THE
STATUTE AS CONSTRUED AND APPLIED IMPOSED AN UNCONSTITUTIONAL BURDEN,
AND THE ISSUE COULD NOT ADEQUATELY BE RAISED BY ANY OTHER PROCEEDING. 

4.  A CORPORATION CREATED BY THE STATE AS AN INSTRUMENTALITY OF THE
STATE AND HAVING CONTROL AND MANAGEMENT OF STATE EDUCATIONAL
INSTITUTIONS, AT WHICH ATHLETIC EXHIBITIONS ARE HELD AND THE PUBLIC ARE
CHARGED FOR ADMISSION, MAY CONSTITUTIONALLY BE REQUIRED TO COLLECT,
MAKE RETURN OF, AND PAY TO THE UNITED STATES THE ADMISSIONS TAX IMPOSED
BY REVENUE ACT OF 1926, SEC. 500(A)(1), AS AMENDED BY REVENUE ACT OF
1932, SEC. 711.  P. 449. 

5.  THE TAX IMMUNITY IMPLIED FROM THE DUAL SOVEREIGNTY RECOGNIZED BY
THE CONSTITUTION DOES NOT EXTEND TO BUSINESS ENTERPRISES CONDUCTED BY
THE STATES FOR GAIN.  P. 453. 

ALLEN, COLLECTOR OF INTERNAL REVENUE, V. REGENTS OF THE UNIVERSITY
SYSTEM OF GEORGIA. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 303 U.S. 634, TO REVIEW THE AFFIRMANCE OF A DECREE
ENJOINING A UNITED STATES COLLECTOR OF INTERNAL REVENUE FROM
DISTRAINING BANK DEPOSITS REPRESENTING MONEYS CLAIMS BY THE REGENTS OF
THE UNIVERSITY SYSTEM OF GEORGIA, A STATE INSTRUMENTALITY, RESPONDENT
IN THIS CASE.  SEE ALSO 10 F.SUPP.  901; 18 ID. 62; 81 F.2D 577. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION ON THE MERITS IS WHETHER THE EXACTION OF THE FEDERAL
ADMISSIONS TAX, IN RESPECT OF ATHLETIC CONTESTS IN WHICH TEAMS
REPRESENTING COLLEGES CONDUCTED BY THE RESPONDENT PARTICIPATE,
UNCONSTITUTIONALLY BURDENS A GOVERNMENTAL FUNCTION OF THE STATE OF
GEORGIA.  THE PETITION ALSO CHALLENGES THE RESPONDENT'S ABILITY TO
MAINTAIN A SUIT TO ENJOIN THE COLLECTION OF THE TAX AND TO SUBSTITUTE
AS DEFENDANT THE SUCCESSOR IN OFFICE OF THE COLLECTOR ORIGINALLY
IMPLEADED.  THE COURT BELOW DECIDED ALL THE QUESTIONS INVOLVED AGAINST
THE PETITIONER.  FN1  BECAUSE OF THEIR IMPORTANCE WE GRANTED
CERTIORARI. 

SEC. 711 OF THE REVENUE ACT OF 1932  FN3  IMPOSES "A TAX OF 1 CENT FOR
EACH 10 CENTS OR FRACTION THEREOF OF THE AMOUNT PAID FOR ADMISSION TO
ANY PLACE  ...  TO BE PAID BY THE PERSON PAYING FOR SUCH ADMISSION;
..."  FN4 SUBSECTION (D) COMMANDS THAT THE PRICE (EXCLUSIVE OF THE TAX
TO BE PAID BY THE PERSON PAYING FOR ADMISSION) AT WHICH EVERY ADMISSION
TICKET IS SOLD SHALL BE CONSPICUOUSLY PRINTED, STAMPED, OR WRITTEN ON
THE FACE OR BACK OF THAT PORTION OF THE TICKET WHICH IS TO BE TAKEN UP
BY THE MANAGEMENT AND IMPOSES A PENALTY FOR FAILURE TO COMPLY WITH ITS
TERMS.  SECTION 502 REQUIRES THE PERSON RECEIVING PAYMENTS FOR
ADMISSIONS TO COLLECT THE TAX AND MAKE RETURN IN SUCH FORM AS THE
COMMISSIONER OF INTERNAL REVENUE MAY PRESCRIBE BY REGULATION.  SECTION
1102(A)  FN5  IMPOSES THE DUTY ON PERSONS WHO COLLECT THE TAX TO KEEP
RECORDS AND RENDER STATEMENTS, UNDER OATH, AND TO MAKE RETURNS AS
REQUIRED BY THE SECRETARY OF THE TREASURY.  SECTION 1114  FN6  (B) AND
(D) FIXES PENALTIES FOR FAILURE TO COLLECT OR PAY OVER AND SUBSECTION
(E) PROVIDES FOR THE PERSONAL LIABILITY OF ONE COLLECTING THE ADMISSION
CHARGE AND FOR DISTRAINT BY THE COLLECTOR OF INTERNAL REVENUE FOR TAXES
AND PENALTIES.  SECTION 607 OF THE REVENUE ACT OF 1934  FN7  REQUIRES
THE PERSON CHARGED WITH THE COLLECTION OF THE TAX TO HOLD THE AMOUNT
COLLECTED AS A SPECIAL FUND IN TRUST FOR THE UNITED STATES, CONFERS THE
RIGHT TO ASSESS HIM WITH THE AMOUNT SO COLLECTED AND WITHHELD,
INCLUDING PENALTIES, AND, IN CONNECTION WITH R.S. 3187,  FN8
AUTHORIZES THE COLLECTOR OF INTERNAL REVENUE TO DISTRAIN THEREFOR. 

THE RESPONDENT IS A PUBLIC CORPORATION, CREATED BY GEORGIA AS AN
INSTRUMENTALITY OF THE STATE, HAVING CONTROL AND MANAGEMENT OF THE
UNIVERSITY OF GEORGIA AND THE GEORGIA SCHOOL OF TECHNOLOGY.  ATHLETICS
AT THESE INSTITUTIONS ARE CONDUCTED UNDER THE RESPONDENT'S AUTHORITY BY
TWO CORPORATIONS, THE UNIVERSITY OF GEORGIA ATHLETIC ASSOCIATION AND
THE GEORGIA TECH.  ATHLETIC ASSOCIATION.  THE EXPENSE OF PHYSICAL
EDUCATION AND ATHLETIC PROGRAMS AT EACH SCHOOL IS DEFRAYED ALMOST
ENTIRELY FROM THE ADMISSION CHARGES TO ATHLETIC CONTESTS AND STUDENTS'
ATHLETIC FEES COLLECTED FOR THE PURPOSE.  DURING SEPTEMBER AND OCTOBER
1934 FOOTBALL GAMES WERE PLAYED AT THE INSTITUTIONS, FOR WHICH
ADMISSIONS WERE CHARGED AND COLLECTED BY THE ASSOCIATIONS.  EACH TICKET
SHOWED ON ITS FACE THE ADMISSION PRICE, THE AMOUNT OF THE TAX, AND THE
TOTAL OF THE TWO, AND ALSO CARRIED THE FOLLOWING PRINTED NOTICE: 

"THE UNIVERSITY OF GEORGIA (OR GEORGIA SCHOOL OF TECHNOLOGY) BEING AN
INSTRUMENTALITY OF THE GOVERNMENT OF THE STATE OF GEORGIA, CONTENDS
THAT IT IS NOT LIABLE FOR ANY ADMISSION TAX.  THE AMOUNT STATED AS A
TAX IS SO STATED BECAUSE THE UNIVERSITY IS REQUIRED TO DO SO BY
TREASURY REGULATIONS PENDING A DECISION AS TO ITS LIABILITY IN THIS
RESPECT.  THIS AMOUNT IS COLLECTED BY THE UNIVERSITY AS A PART OF THE
ADMISSION AND WILL BE RETAINED AS SUCH UNLESS IT IS FINALLY DETERMINED
THAT THE UNIVERSITY IS ITSELF LIABLE FOR THE TAX." 

EACH ASSOCIATION DEPOSITED THE TOTAL COLLECTED AS THE DISPUTED TAX IN
A SEPARATE BANK ACCOUNT, APART FROM ITS OTHER FUNDS, BUT MADE NO RETURN
THEREOF.  THE COLLECTOR PREPARED RETURNS FOR THE AMOUNTS.  IN
CONSEQUENCE OF THE ASSOCIATIONS' NEGLECT TO PAY THE AMOUNTS SO
RETURNED, THE COMMISSIONER ASSESSED EACH ASSOCIATION IN THE AMOUNT
SHOWN BY RETURN MADE FOR IT AND CERTIFIED THE ASSESSMENTS TO THE
COLLECTOR, WHO MADE DEMANDS FOR PAYMENT.  THESE WERE IGNORED AND THE
COLLECTOR FILED LIENS, ISSUED WARRANTS, AND LEVIED UPON THE DEPOSIT
ACCOUNTS.  THE RESPONDENT THEN BROUGHT SUIT IN WHICH IT PRAYED A DECREE
THAT, AS AN AGENCY OF THE STATE PERFORMING AN ESSENTIAL GOVERNMENTAL
FUNCTION IN THE CONDUCT OF THE GAMES, IT WAS IMMUNE FROM THE TAX, AND
SOUGHT INJUNCTIONS, TEMPORARY AND PERMANENT, TO RESTRAIN THE COLLECTOR
FROM PROCEEDING FURTHER TO COLLECT THE SUMS DEMANDED.  FROM A DECREE
AWARDING A FINAL INJUNCTION THE COLLECTOR APPEALED; BUT, PENDING
APPEAL, HE RESIGNED AND, BEFORE THE HEARING, DIED.  OVER OBJECTION THE
CIRCUIT COURT OF APPEALS ORDERED THE PETITIONER SUBSTITUTED AS
APPELLANT AND AFFIRMED THE DECREE.  WE ARE OF OPINION THAT THE COURT
BELOW RIGHTLY DECIDED THE PROCEDURAL QUESTIONS BUT ERRED AS TO THE
MERITS. 

FIRST.  IF THE SUIT WAS MAINTAINABLE AGAINST HIS PREDECESSOR IN
OFFICE THE SUBSTITUTION OF PETITIONER WAS LAWFUL.  WE ARE NOT UNMINDFUL
OF THE PRINCIPLE THAT SUITS AGAINST OFFICERS TO RESTRAIN ACTION IN
EXCESS OF THEIR AUTHORITY OR IN VIOLATION OF STATUTORY OR
CONSTITUTIONAL PROVISIONS ARE IN THEIR NATURE PERSONAL AND THAT A
SUCCESSOR IN OFFICE IS NOT PRIVY TO HIS PREDECESSOR IN RESPECT OF THE
ALLEGED WRONGFUL CONDUCT.  FN9  AS A RESULT OF THE INCONVENIENCE
RESULTING FROM THE LACK OF POWER TO SUBSTITUTE ONE WHO SUCCEEDED TO THE
OFFICE OF AN ALLEGED OFFENDING OFFICIAL, TO WHICH THIS COURT HAS CALLED
ATTENTION,  FN10  CONGRESS ADOPTED THE ACT OF FEBRUARY 13, 1925,  FN11
WHICH PROVIDES: 

"...  WHERE, DURING THE PENDENCY OF AN ACTION, SUIT, OR OTHER
PROCEEDING BROUGHT BY OR AGAINST AN OFFICER OF THE UNITED STATES  ...
AND RELATING TO THE PRESENT OR FUTURE DISCHARGE OF HIS OFFICIAL DUTIES,
SUCH OFFICER DIES, RESIGNS, OR OTHERWISE CEASES TO HOLD SUCH OFFICE, IT
SHALL BE COMPETENT FOR THE COURT WHEREIN THE ACTION, SUIT, OR
PROCEEDING IS PENDING, WHETHER THE COURT BE ONE OF FIRST INSTANCE OR AN
APPELLATE TRIBUNAL, TO PERMIT THE CAUSE TO BE CONTINUED AND MAINTAINED
BY OR AGAINST THE SUCCESSOR IN OFFICE OF SUCH OFFICER,  ..." 

THE MOTION TO SUBSTITUTE THE PETITIONER ASSERTED THAT, UNLESS
RESTRAINED, HE WOULD CONTINUE IN THE COURSE PURSUED BY HIS
PREDECESSOR.  THE ANSWER DID NOT DENY THIS ALLEGATION BUT RELIED UPON
THE CLAIM THAT THE PRESENT COLLECTOR IS NOT PRIVY TO THE ACTS OF THE
FORMER ONE.  IN EX PARTE LA PRADE, 289 U.S. 444, THIS COURT RESERVED
THE QUESTION WHETHER IN SUCH A SITUATION THE SUCCESSOR MIGHT BE
SUBSTITUTED.  AS THE PRESENT CASE IS WITHIN THE LETTER OF THE ACT AND
WITHIN THE INCONVENIENCE INTENDED TO BE OBVIATED BY ITS ADOPTION, THE
SUBSTITUTION WAS PROPERLY PERMITTED. 

SECOND.  IF THE TAX, THE COLLECTION OF WHICH WAS THREATENED,
CONSTITUTED AN INADMISSIBLE BURDEN UPON A GOVERNMENTAL ACTIVITY OF THE
STATE, THE CIRCUMSTANCES DISCLOSED RENDER THE CAUSE ONE OF EQUITABLE
COGNIZANCE AND TAKE IT OUT OF THE PROHIBITION OF R.S. 3224.  FN12  THE
RESPONDENT HAS LONG BEEN OF OPINION THAT EXACTION OF THE TAX IN RESPECT
OF GAMES PLAYED UNDER THE AUSPICES OF THE UNIVERSITY OF GEORGIA AND THE
GEORGIA SCHOOL OF TECHNOLOGY CONSTITUTES AN UNCONSTITUTIONAL BURDEN
UPON AN ESSENTIAL GOVERNMENTAL ACTIVITY OF GEORGIA.  AT FIRST THE
RESPONDENT COLLECTED THE TAX AS REQUIRED BY THE ACT, PAID IT OVER TO
THE TREASURY, AND MADE CLAIM FOR REFUND.  THE CLAIM WAS REJECTED ON THE
GROUND THAT THE TAX WAS PAID BY THE PATRON OF THE GAME, AND THAT THE
ATHLETIC ASSOCIATIONS AND THE RESPONDENT WERE MERE COLLECTING AGENTS
HAVING NO INTEREST IN THE FUND WHICH WOULD JUSTIFY REPAYMENT TO THEM IF
IT HAD BEEN ILLEGALLY COLLECTED.  BELIEVING THE BASIS OF THE
COMMISSIONER'S REFUSAL TO REFUND WAS SOUND,  FN13  THE RESPONDENT THEN
RESORTED TO THE EXPEDIENT OF COLLECTING THE AMOUNT OF THE TAX UNDER THE
RESERVATION PRINTED UPON THE TICKETS. 

THE BILL, AFTER RECITING THE FACTS AS ABOVE SUMMARIZED, ALLEGES THAT
THE STATUTE IMPOSES A TAX UPON THE INDIVIDUALS WHO PURCHASE TICKETS,
BUT, PROPERLY CONSTRUED, IS INAPPLICABLE TO THOSE PURCHASING TICKETS TO
THE FOOTBALL GAMES IN QUESTION.  IT FURTHER ASSERTS THAT, IN RESPECT OF
THOSE GAMES, NEITHER THE RESPONDENT NOR THE ATHLETIC ASSOCIATIONS
COLLECTED ANY TAX FROM PURCHASERS OF ADMISSIONS; THAT IF THE STATUTE BE
CONSTRUED TO JUSTIFY THE COLLECTOR IN SEEKING TO FORCE RESPONDENT TO
PAY SUMS REPRESENTING ALLEGED TAXES DUE FROM NUMEROUS INDIVIDUALS IT IS
UNCONSTITUTIONAL AS AN ATTEMPT TO INTERFERE WITH AND CONTROL AND TO
BURDEN THE STATE'S EDUCATIONAL ACTIVITIES AND UNLAWFULLY TO IMPOSE ON
THE STATE GOVERNMENT THE DUTY OF COLLECTING TAXES FOR THE FEDERAL
GOVERNMENT; THAT THE ACTION OF THE PETITIONER IN ISSUING WARRANTS OF
DISTRAINT IS EITHER AN ATTEMPT TO COLLECT FROM RESPONDENT TAXES ALLEGED
TO BE DUE FROM VARIOUS INDIVIDUALS, OR TO IMPOSE UPON THE RESPONDENT
PENALTIES, CRIMINAL AND PUNITIVE IN NATURE. 

THE PETITIONER INSISTS THE BILL SHOWS THE TAX WAS IN FACT COLLECTED
FROM THE PATRONS OF THE GAMES, AND THE ALLEGATION THAT NO TAX WAS
COLLECTED IS A MERE CONCLUSION OF LAW WHICH THE COURT SHOULD IGNORE;
THAT THE TRIAL COURT WAS WITHOUT JURISDICTION TO DETERMINE IN THIS SUIT
FOR INJUNCTION WHETHER OR NOT TAXES HAD BEEN COLLECTED BY RESPONDENT;
THAT THE REVENUE ACT IMPOSES NO LIABILITY FOR THE TAX UPON THE VENDOR
OF THE TICKETS WHO FAILS TO COLLECT, ALTHOUGH IT DOES IMPOSE A PENALTY
FOR WILFUL FAILURE TO COLLECT THE TAX AND OTHER PENALTIES; THAT, AS THE
RESPONDENT COLLECTED THE TAX, IT HAS NO STANDING IN ITS CAPACITY AS A
COLLECTING AGENT TO DENY THE VALIDITY OF THE EXACTION, AND, AS A
COLLECTING AGENT, COULD NOT CREATE A RIGHT TO RESIST COLLECTION BY THE
GOVERNMENT BY FORCING A STIPULATION UPON PURCHASERS OF TICKETS THAT THE
AMOUNT COLLECTED SHOULD BELONG TO THE AGENT IF IT WERE ABLE TO DEFEAT
THE GOVERNMENT; THAT, AS SUCH AGENT, RESPONDENT HAS NO INTEREST ADVERSE
TO THE UNITED STATES; THAT THE STIPULATION IN QUESTION DID NOT AMOUNT
TO AN ASSIGNMENT OF A TICKET PURCHASER'S CLAIM FOR REFUND OR, IF IT
DID, THE PURCHASER HAS THEREBY LOST HIS RIGHT TO RECOVER THE TAX BY
REASON OF THE PROHIBITION OF ASSIGNMENT OF CLAIMS AGAINST THE UNITED
STATES EMBODIED IN R.S. 3477; FN14  THAT RESPONDENT OR THE ATHLETIC
ASSOCIATIONS WOULD HAVE HAD AN ADEQUATE REMEDY AT LAW FOR RECOVERY OF
THE AMOUNTS ASSESSED AGAINST THEM HAD THEY PAID THE ASSESSMENTS; AND
FINALLY THAT R.S. 3224  FN15  PROHIBITS THE ISSUE OF AN INJUNCTION
AGAINST COLLECTION. 

TO THESE CONTENTIONS RESPONDENT REPLIES THAT WHILE IT PLACED THE
REQUIRED INFORMATION ON THE TICKET AND SEGREGATED THE EQUIVALENT OF THE
TAX FROM THE PROCEEDS OF TICKETS SOLD TO AVOID THE IMPOSITION OF
PENALTIES ON ITS PERSONNEL, THE NOTATION ON THE TICKETS SHOWS THAT IT
DID NOT UNDERTAKE TO COLLECT AND DID NOT IN FACT COLLECT THE TAX; THAT,
BY REFUSAL TO COLLECT, IT TOOK ITSELF OUT OF THE CATEGORY OF AN AGENT
WHO VOLUNTARILY ACTED ON BEHALF OF THE GOVERNMENT; THAT, WHILE THE
STATUTE PLACES NO LIABILITY UPON RESPONDENT FOR THE TAX AS SUCH, IT
IMPOSES UPON THE RESPONDENT CIVIL AND CRIMINAL PENALTIES FOR REFUSAL TO
COLLECT IT; THAT RESPONDENT IS NOT AN ASSIGNEE OF THE CLAIMS OF ITS
PATRONS, BUT, IF THE TAX IS INVALID, IS OWNER IN ITS OWN RIGHT OF THE
ENTIRE AMOUNT PAID BY EACH PURCHASER; THAT RESPONDENT HAS NO REMEDY AT
LAW BECAUSE IF IT HAD PAID THE TAX OUT OF ITS OWN FUNDS IT COULD NOT
HAVE CLAIMED REFUND OF PAYMENT THUS VOLUNTARILY MADE FOR ITS PATRONS'
ACCOUNTS; THAT STATE OFFICIALS MAY NOT BE REQUIRED TO COLLECT AN
ILLEGAL TAX AS A CONDITION PRECEDENT TO CONTESTING ITS VALIDITY; THAT
SEC. 3224 HAS NO APPLICATION TO THIS SUIT. 

THE DISPUTE AS TO THE PROPRIETY OF A SUIT IN EQUITY MUST BE RESOLVED
IN THE LIGHT OF THE NATURE OF THE CONTROVERSY.  THE RESPONDENT IN GOOD
FAITH BELIEVES THAT AN UNCONSTITUTIONAL BURDEN IS LAID DIRECTLY UPON
ITS TRANSACTIONS IN THE SALE OF LICENSES TO WITNESS ATHLETIC
EXHIBITIONS CONDUCTED UNDER AUTHORITY OF THE STATE AND FOR AN ESSENTIAL
GOVERNMENTAL PURPOSE.  THE STATE IS ENTITLED TO HAVE A DETERMINATION OF
THE QUESTION WHETHER SUCH BURDEN IS IMPOSED BY THE STATUTE AS CONSTRUED
AND APPLIED.  IT IS NOT BOUND TO SUBJECT ITS PUBLIC OFFICERS AND THEIR
SUBORDINATES TO PAINS AND PENALTIES CRIMINAL AND CIVIL IN ORDER TO HAVE
THIS QUESTION SETTLED, IF NO PART OF THE SUM COLLECTED WAS A TAX, AND
IF THE ASSESSMENT WAS IN TRUTH THE IMPOSITION OF A PENALTY FOR FAILURE
TO EXACT A TAX ON BEHALF OF THE UNITED STATES.  AND IF THE RESPONDENT
IS RIGHT THAT THE STATUTE IS INVALID AS APPLIED TO ITS EXHIBITIONS, IT
OUGHT NOT TO HAVE TO INCUR THE EXPENSE AND BURDEN OF COLLECTION,
RETURN, AND PROSECUTION OF CLAIM FOR REFUND OF A TAX UPON OTHERS WHICH
THE STATE MAY NOT LAWFULLY BE REQUIRED TO COLLECT.  THESE EXTRAORDINARY
CIRCUMSTANCES WE THINK JUSTIFY RESORT TO EQUITY.    WHAT WE HAVE SAID
INDICATES THAT R.S. 3224, SUPRA, DOES NOT OUST THE JURISDICTION.  THE
STATUTE IS INAPPLICABLE IN EXCEPTIONAL CASES WHERE THERE IS NO PLAIN,
ADEQUATE, AND COMPLETE REMEDY AT LAW.  FN16  THIS IS SUCH A CASE, FOR
HERE THE ASSESSMENT IS NOT OF A TAX PAYABLE BY RESPONDENT BUT OF A
PENALTY FOR FAILURE TO COLLECT IT FROM ANOTHER.  THE ARGUMENT THAT NO
REMEDY NEED BE AFFORDED THE RESPONDENT IS BOTTOMED ON THE ASSUMPTION
THAT IT IS A MERE COLLECTING AGENT WHICH CANNOT BE HURT BY COLLECTING
AND PAYING OVER THE TAX; BUT THIS ARGUMENT ASSUMES FIRST, THAT
RESPONDENT DID IN TRUTH COLLECT A TAX AND, SECOND, THAT THE IMPOSITION
OF THE TAX ON THE PURCHASE OF ADMISSIONS CANNOT BURDEN A STATE
ACTIVITY.  THIS IS ARGUING IN A CIRCLE, FOR THESE ARE THE SUBSTANTIAL
MATTERS IN CONTROVERSY.  WE HOLD THAT THE BILL STATES A CASE IN EQUITY
AS, UPON THE SHOWING MADE, THE RESPONDENT WAS UNABLE BY ANY OTHER
PROCEEDING ADEQUATELY TO RAISE THE ISSUE OF THE UNCONSTITUTIONALITY OF
THE GOVERNMENT'S EFFORT TO ENFORCE PAYMENT. 

THIRD.  WE COME THEN TO THE MERITS.  FOR PRESENT PURPOSES WE ASSUME
THE TRUTH OF THE FOLLOWING PROPOSITIONS PUT FORWARD BY THE RESPONDENT:
THAT IT IS A PUBLIC INSTRUMENTALITY OF THE STATE GOVERNMENT CARRYING
OUT A PART OF THE STATE'S PROGRAM OF PUBLIC EDUCATION; THAT PUBLIC
EDUCATION IS A GOVERNMENTAL FUNCTION; THAT THE HOLDING OF ATHLETIC
CONTESTS IS AN INTEGRAL PART OF THE PROGRAM OF PUBLIC EDUCATION
CONDUCTED BY GEORGIA; THAT THE MEANS BY WHICH THE STATE CARRIES OUT
THAT PROGRAM ARE FOR DETERMINATION BY THE STATE AUTHORITIES, AND THEIR
DETERMINATION IS NOT SUBJECT TO REVIEW BY ANY BRANCH OF THE FEDERAL
GOVERNMENT; THAT A STATE ACTIVITY DOES NOT CEASE TO BE GOVERNMENTAL
BECAUSE IT PRODUCES SOME INCOME; THAT THE TAX IS IMPOSED DIRECTLY ON
THE STATE ACTIVITY AND DIRECTLY BURDENS THAT ACTIVITY; THAT THE BURDEN
OF COLLECTING THE TAX IS PLACED IMMEDIATELY ON A STATE AGENCY.  THE
PETITIONER STOUTLY COMBATS MANY OF THESE PROPOSITIONS.  WE HAVE NO
OCCASION TO PASS UPON THEIR VALIDITY SINCE, EVEN IF ALL ARE ACCEPTED,
WE THINK THE TAX WAS LAWFULLY IMPOSED AND THE RESPONDENT WAS OBLIGATED
TO COLLECT, RETURN AND PAY IT TO THE UNITED STATES. 

THE RECORD DISCLOSES THESE UNDISPUTED FACTS:  THE STADIUM OF THE
UNIVERSITY OF GEORGIA HAS A SEATING CAPACITY OF 30,000, COST $180,000,
AND WAS PAID FOR BY BORROWED MONEY WHICH IS BEING REPAID BY THE
ATHLETIC ASSOCIATION, WHOSE CHIEF SOURCE OF REVENUE IS ADMISSIONS TO
THE CONTESTS IN THE STADIUM.  $158,000 OF THE AMOUNT BORROWED HAS BEEN
REPAID SINCE THE STADIUM WAS COMPLETED IN 1929.  THE STUDENT ENROLLMENT
IS ABOUT 2,400.  EACH STUDENT PAYS AN ANNUAL ATHLETIC FEE OF $10.00
WHICH CONFERS THE PRIVILEGE OF FREE ADMISSION TO ALL THE SCHOOL'S
ATHLETIC EVENTS.  ALL ADMISSIONS COLLECTED, AND THE TAX PAID ON THEM,
ARE PAID BY THE GENERAL PUBLIC, NONE BY THE STUDENTS.  FN17 THE TOTAL
RECEIPTS OF THE ATHLETIC ASSOCIATION FROM ALL SOURCES FOR THE YEAR
ENDING AUGUST 31, 1935, WERE $91,620.25 OF WHICH $71,323.27 CAME FROM
ADMISSIONS TO FOOTBALL GAMES. 

THE STADIUM OF THE GEORGIA SCHOOL OF TECHNOLOGY HAS A SEATING
CAPACITY OF 29,000.  IT COST $275,000 AND WAS PAID FOR BY A GIFT OF
$50,000 AND FROM ADMISSIONS CHARGED AND STUDENT FEES.  THE ENROLLMENT
IS ABOUT 2,000 STUDENTS, EACH OF WHOM PAYS AN ANNUAL ATHLETIC FEE OF
$7.50 WHICH GIVES THE PRIVILEGE OF FREE ADMISSION TO ALL GAMES.  ALL
ADMISSIONS COLLECTED, AND THE TAX PAID ON THEM, ARE PAID BY THE GENERAL
PUBLIC, NONE BY THE STUDENTS.  FN17  THE TOTAL RECEIPTS OF THE ATHLETIC
ASSOCIATION FOR THE SIX MONTHS ENDED DECEMBER 31, 1934, WERE
$119,436.75 OF WHICH $74,168.51 CAME FROM ADMISSIONS TO FOOTBALL
GAMES. 

IT IS EVIDENT THAT THESE EXHIBITION ENTERPRISES ARE COMPARATIVELY
LARGE AND ARE THE MEANS OF PROCURING SUBSTANTIAL AID FOR THE SCHOOLS'
PROGRAMS OF ATHLETICS AND PHYSICAL EDUCATION.  IN FINAL ANALYSIS THE
QUESTION WE MUST DECIDE IS WHETHER, BY ELECTING TO SUPPORT A
GOVERNMENTAL ACTIVITY THROUGH THE CONDUCT OF A BUSINESS COMPARABLE IN
ALL ESSENTIALS TO THOSE USUALLY CONDUCTED BY PRIVATE OWNERS, A STATE
MAY WITHDRAW THE BUSINESS FROM THE FIELD OF FEDERAL TAXATION. 

WHEN A STATE EMBARKS IN A BUSINESS WHICH WOULD NORMALLY BE TAXABLE,
THE FACT THAT IN SO DOING IT IS EXERCISING A GOVERNMENTAL POWER DOES
NOT RENDER THE ACTIVITY IMMUNE FROM FEDERAL TAXATION.  IN SOUTH
CAROLINA V. UNITED STATES, 199 U.S. 437, IT APPEARED THAT SOUTH
CAROLINA HAD ESTABLISHED DISPENSARIES FOR THE SALE OF LIQUOR AND
PROHIBITED SALE BY OTHER THAN OFFICIAL DISPENSERS.  IT WAS HELD THAT
THE UNITED STATES COULD REQUIRE THE DISPENSERS TO TAKE LICENSES AND TO
PAY LICENSE TAXES UNDER THE INTERNAL REVENUE LAWS APPLICABLE TO DEALERS
IN INTOXICATING LIQUORS, AND THIS NOTWITHSTANDING THE STATE HAD
ESTABLISHED THE DISPENSARY SYSTEM IN THE VALID EXERCISE OF HER POLICE
POWER.  IN OHIO V. HELVERING, 292 U.S. 360, IT WAS SHOWN THAT OHIO, IN
THE EXERCISE OF THE SAME POWER, HAD CREATED A MONOPOLY OF THE
DISTRIBUTION AND SALE OF INTOXICATING LIQUORS THROUGH STORES OWNED,
MANAGED, AND CONTROLLED EXCLUSIVELY BY THE STATE.  IT WAS SOUGHT TO
ENJOIN THE COMMISSIONER OF INTERNAL REVENUE AND HIS SUBORDINATES FROM
ENFORCING AGAINST THE STATE, HER OFFICERS, AGENTS, AND EMPLOYES,
PENALTIES FOR THE NONPAYMENT OF FEDERAL EXCISES ON THE SALE OF LIQUOR. 
RELIEF WAS DENIED AND THE VIEWS EXPRESSED IN THE SOUTH CAROLINA CASE
WERE REAFFIRMED.  IN HELVERING V. POWERS, 293 U.S. 214, THE COURT FOUND
THAT MASSACHUSETTS, IN THE EXERCISE OF THE POLICE POWER, HAD APPOINTED
A BOARD OF TRUSTEES TO OPERATE A STREET RAILWAY COMPANY'S PROPERTIES
FOR A LIMITED TIME.  IT WAS HELD THAT THOUGH THE TRUSTEES WERE STATE
OFFICERS, THEIR SALARIES WERE SUBJECT TO FEDERAL INCOME TAX BECAUSE THE
STATE COULD NOT WITHDRAW SOURCES OF REVENUE FROM THE FEDERAL TAXING
POWER BY ENGAGING IN A BUSINESS WHICH WENT BEYOND USUAL GOVERNMENTAL
FUNCTIONS AND TO WHICH, BY REASON OF ITS NATURE, THE FEDERAL TAXING
POWER WOULD NORMALLY EXTEND. 

THE LEGISLATION CONSIDERED IN SOUTH CAROLINA V. UNITED STATES, SUPRA,
PROVIDED FOR A DIVISION OF THE PROFITS OF THE DISPENSARY SYSTEM BETWEEN
THE STATE TREASURY AND CITIES AND COUNTIES.  THUS THE ENTERPRISE
CONTRIBUTED DIRECTLY TO THE SUSTENANCE OF EVERY GOVERNMENTAL ACTIVITY
OF THE STATE.  IN THE PRESENT INSTANCE, INSTEAD OF COVERING THE
PROCEEDS OR PROFITS OF THE EXHIBITIONS INTO THE STATE TREASURY, THE
PLAN IN ACTUAL OPERATION APPROPRIATES THESE MONIES IN EASE OF WHAT THE
STATE DEEMS ITS GOVERNMENTAL OBLIGATION TO SUPPORT A SYSTEM OF PUBLIC
EDUCATION.  THE DIFFERENCE IN METHOD IS NOT SIGNIFICANT.  THE IMPORTANT
FACT IS THAT THE STATE, IN ORDER TO RAISE FUNDS FOR PUBLIC PURPOSES,
HAS EMBARKED IN A BUSINESS HAVING THE INCIDENTS OF SIMILAR ENTERPRISES
USUALLY PROSECUTED FOR PRIVATE GAIN.  IF IT BE CONCEDED THAT THE
EDUCATION OF ITS PROSPECTIVE CITIZENS IS AN ESSENTIAL GOVERNMENTAL
FUNCTION OF GEORGIA, AS NECESSARY TO THE PRESERVATION OF THE STATE AS
IS THE MAINTENANCE OF ITS EXECUTIVE, LEGISLATIVE, AND JUDICIAL
BRANCHES, IT DOES NOT FOLLOW THAT IF THE STATE ELECTS TO PROVIDE THE
FUNDS FOR ANY OF THESE PURPOSES BY CONDUCTING A BUSINESS, THE
APPLICATION OF THE AVAILS IN AID OF NECESSARY GOVERNMENTAL FUNCTIONS
WITHDRAWS THE BUSINESS FROM THE FIELD OF FEDERAL TAXATION. 

UNDER THE TEST LAID DOWN IN HELVERING V. GERHARDT, ANTE, P. 405,
HOWEVER ESSENTIAL A SYSTEM OF PUBLIC EDUCATION TO THE EXISTENCE OF THE
STATE, THE CONDUCT OF EXHIBITIONS FOR ADMISSIONS PAID BY THE PUBLIC IS
NOT SUCH A FUNCTION OF STATE GOVERNMENT AS TO BE FREE FROM THE BURDEN
OF A NON-DISCRIMINATORY TAX LAID ON ALL ADMISSIONS TO PUBLIC
EXHIBITIONS FOR WHICH AN ADMISSION FEE IS CHARGED. 

THE OPINION IN SOUTH CAROLINA V. UNITED STATES, SUPRA, AT PAGES 454
457, POINTS OUT THE DESTRUCTION OF THE FEDERAL POWER TO TAX WHICH MIGHT
RESULT FROM A CONTRARY DECISION.  FN18 

MOREOVER, THE IMMUNITY IMPLIED FROM THE DUAL SOVEREIGNTY RECOGNIZED
BY THE CONSTITUTION DOES NOT EXTEND TO BUSINESS ENTERPRISES CONDUCTED
BY THE STATES FOR GAIN.  AS WAS SAID IN SOUTH CAROLINA V. UNITED
STATES, SUPRA, AT P. 457:  "LOOKING, THEREFORE, AT THE CONSTITUTION IN
THE LIGHT OF THE CONDITIONS SURROUNDING AT THE TIME OF ITS ADOPTION, IT
IS OBVIOUS THAT THE FRAMERS IN GRANTING FULL POWER OVER LICENSE TAXES
TO THE NATIONAL GOVERNMENT MEANT THAT THAT POWER SHOULD BE COMPLETE,
AND NEVER THOUGHT THAT THE STATES BY EXTENDING THEIR FUNCTIONS COULD
PRACTICALLY DESTROY IT."  COMPARE HELVERING V. THERRELL, 303 U.S. 218. 
THE DECREE IS REVERSED. 

FN1  THE DEFENDANT IN THE DISTRICT COURT WAS W. E. PAGE, THE
PETITIONER'S PREDECESSOR IN OFFICE.  THAT COURT DISMISSED THE BILL.  10
F.SUPP.  901.  THE CIRCUIT COURT OF APPEALS REVERSED.  81 F.2D 577. 
AFTER ANSWER AND A HEARING ON THE MERITS THE DISTRICT COURT AWARDED AN
INJUNCTION.  18 F.SUPP.  62.  THE CIRCUIT COURT OF APPEALS PERMITTED
THE SUBSTITUTION OF THE PETITIONER FOR PAGE AND AFFIRMED THE DECREE BY
A DIVIDED COURT.  93 F.2D 887. 

FN2  C. 27, 44 STAT. 9, 91; U.S.C. TIT. 26, SECS. 940-944. 

FN3  C. 209, 47 STAT. 169, 271; U.S.C. TIT. 26, SEC. 940(A)(2). 

FN4  EXEMPTIONS TOUCHING ADMISSIONS OF CERTAIN PERSONS AND ALL
ADMISSIONS TO SPECIFIED TYPES OF ENTERTAINMENT OR EXHIBITIONS ARE NOT
INVOLVED.  SUBSECTION (E), 47 STAT. 271. 

FN5  44 STAT. 112; U.S.C. TIT. 26, SEC. 960. 

FN6  44 STAT. 116; U.S.C. TIT. 26, SECS. 494, 856, 921. 

FN7  C. 277, 48 STAT. 680, 768; U.S.C. TIT. 26, SEC. 1551. 

FN8  U.S.C. TIT. 26, SEC. 1580. 

FN9  PENNOYER V. MCCONNAUGHY, 140 U.S. 1, 10; UNITED STATES EX REL.
BERNARDIN V. BUTTERWORTH, 169 U.S. 600, 603-604; PHILADELPHIA COMPANY
V. STIMSON, 223 U.S. 605, 620-621; IRWIN V. WRIGHT, 258 U.S. 219, 222. 

FN10  SEE EX PARTE LA PRADE, 289 U.S. 444, 456-459. 

FN11 C. 229, 43 STAT. 936, U.S.C. TIT. 28, SEC. 780. 

FN12  U.S.C. TIT. 26, SEC. 1543. 

FN13  COMPARE SHANNOPIN COUNTRY CLUB V. HEINER, 2 F.2D 393; LAFAYETTE
WORSTED CO. V. PAGE, 6 F.2D 399; UNION PACIFIC RY. CO. V. BOWERS, 33
F.2D 102; WOURDACK V. BECKER, 55 F.2D 840; BUT SEE BUILDERS' CLUB V.
UNITED STATES, 14 F.SUPP.  1020. 

FN14  U.S.C. TIT. 31, SEC. 203. 

FN15  "NO SUIT FOR THE PURPOSE OF RESTRAINING THE ASSESSMENT OR
COLLECTION OF ANY TAX SHALL BE MAINTAINED IN ANY COURT."  U.S.C. TIT.
26, SEC. 1543. 

FN16  MILLER V. STANDARD NUT MARGARINE CO., 284 U.S. 498, 509. 

FN17  STUDENT ATHLETIC FEES ARE NOT TREATED AS ADMISSIONS SUBJECT TO
THE TAX.  SEE CUMULATIVE BULLETIN XI-2(JULY-DECEMBER 1932), P. 522. 

FN18  "MINGLING THE THOUGHT OF PROFIT WITH THE NECESSITY OF
REGULATION MAY INDUCE THE STATE TO TAKE POSSESSION, IN LIKE MANNER, OF
TOBACCO, OLEOMARGARINE, AND ALL OTHER OBJECTS OF INTERNAL REVENUE TAX. 
IF ONE STATE FINDS IT THUS PROFITABLE OTHER STATES MAY FOLLOW, AND THE
WHOLE BODY OF INTERNAL REVENUE TAX BE THUS STRICKEN DOWN."  (P. 454.) 

"THE SAME ARGUMENT WHICH WOULD EXEMPT THE SALE BY A STATE OF LIQUOR,
TOBACCO, ETC., FROM A LICENSE TAX WOULD EXEMPT THE IMPORTATION OF
MERCHANDISE BY A STATE FROM IMPORT DUTY."  (P. 455.)  (COMPARE BOARD OF
TRUSTEES V. UNITED STATES, 289 U.S. 48, 59.) 

"OBVIOUSLY, IF THE POWER OF THE STATE IS CARRIED TO THE EXTENT
SUGGESTED, AND WITH IT IS RELIEF FROM ALL FEDERAL TAXATION, THE
NATIONAL GOVERNMENT WOULD BE LARGELY CRIPPLED IN ITS REVENUES.  INDEED,
IF ALL THE STATES SHOULD CONCUR IN EXERCISING THEIR POWERS TO THE FULL
EXTENT, IT WOULD BE ALMOST IMPOSSIBLE FOR THE NATION TO COLLECT ANY
REVENUES.  IN OTHER WORDS, IN THIS INDIRECT WAY IT WOULD BE WITHIN THE
COMPETENCY OF THE STATES TO PRACTICALLY DESTROY THE EFFICIENCY OF THE
NATIONAL GOVERNMENT."  (P. 455.) 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 

MR. JUSTICE STONE, CONCURRING IN THE RESULT. 

CONGRESS, BY R.S. SEC. 3224, HAS DECLARED THAT "NO SUIT FOR THE
PURPOSE OF RESTRAINING THE ASSESSMENT OR COLLECTION OF ANY TAX SHALL BE
MAINTAINED IN ANY COURT."  WHILE I AGREE WITH THE DECISION OF THE COURT
ON THE MERITS, I AM NOT PERSUADED THAT THIS STATUTE DOES NOT MEAN WHAT
IT SAYS, OR THAT THE SUIT IS NOT ONE TO RESTRAIN COLLECTION OF THE
TAX.  I CAN ONLY CONCLUDE, AS I DID IN MILLER V. STANDARD NUT MARGARINE
CO., 284 U.S. 498, 511, THAT THE STATUTE DEPRIVED THE DISTRICT COURT OF
JURISDICTION TO ENTERTAIN RESPONDENT'S SUIT, AND THAT THE JUDGMENT
SHOULD BE REVERSED WITH DIRECTION THAT THE CAUSE BE DISMISSED. 

MR. JUSTICE REED CONCURRING IN THE RESULT. 

EXCEPT FOR THE HOLDING THAT INJUNCTION IS A PROPER REMEDY TO TEST THE
POSITION OF THE REGENTS, I AGREE WITH THE OPINION OF THE COURT.  AS
EVEN A SMALL BREACH IN THE GENERAL SCHEME OF TAXATION GIVES AN OPENING
FOR THE DISORGANIZATION OF THE WHOLE PLAN, IT SEEMS DESIRABLE TO
EXPRESS DISSENT FROM THE CONCLUSION THAT THE REGENTS MAY UTILIZE THE
SUMMARY REMEDY OF INJUNCTION, OVER THE OBJECTION OF THE GOVERNMENT, AS
A MEANS OF TESTING THE APPLICABILITY OF A TAX LAW TO THEM. 

THE FACTS SET OUT IN THE OPINION OF THE CIRCUMSTANCES AND AGREEMENT
UNDER WHICH THE MONEY THREATENED TO BE DISTRAINED WAS COLLECTED MAKE IT
QUITE CLEAR, IT SEEMS TO ME, THAT THE REGENTS COLLECTED TAX MONEYS FROM
THE SPECTATORS.  ANY ALLEGATION IN THE PETITION TO THE CONTRARY IS AN
ERRONEOUS CONCLUSION OF LAW.  THE COLLECTOR SOUGHT TO COVER THIS MONEY
INTO THE TREASURY.  SECTION 502(A) OF THE REVENUE ACT OF 1926; FN1
SEC. 607 OF THE REVENUE ACT OF 1934  FN2  AND SEC. 3224 OF THE REVISED
STATUTES  FN3  MAKE IT CLEAR THAT NO INJUNCTION WILL LIE TO RESTRAIN
SUCH ACTION.  FN4 

BY THE COURTS WITHOUT DEVIATION.  EXCEPTIONS WERE MADE TO PROTECT
TAXPAYERS AGAINST COLLECTION OF PENALTIES.  FN5  IN AN EXCEPTIONAL CASE
OF "SPECIAL AND EXTRAORDINARY" CIRCUMSTANCES,  FN6  WHERE A "VALID  ...
TAX COULD BY NO LEGAL POSSIBILITY HAVE BEEN ASSESSED AGAINST
RESPONDENT  ..."  THIS COURT PERMITTED AN INJUNCTION.  "SPECIAL AND
EXTRAORDINARY" CIRCUMSTANCES HAVE MULTIPLIED.  HERE THE LOWER COURT
FOUND THEM "DEMONSTRATED BY THE FACT THAT THE REGENTS HAD ACTUALLY PAID
THE TAX IN FORMER YEARS, AND FILED A CLAIM FOR REFUND WHICH WAS DENIED
ON THE GROUND THAT THEY HAD NOT BORNE THE BURDEN OF ANY PART THEREOF." 
IT MAY BE ASSUMED, AND PETITIONER ADMITS, THAT RESPONDENTS MAY NOT PAY
THE MONEYS AND THEN SUE TO RECOVER THEM.  THE FALLACY UNDERLYING THE
OPINION OF THE COURT IS THE ASSUMPTION THAT SOME REMEDY IS NECESSARY. 
RESPONDENTS, BEING MERELY COLLECTORS OF TAX MONEYS, ARE NOT ENTITLED
EITHER TO ENJOIN COLLECTION OF THESE MONEYS OR TO PAY AND SUE TO
RECOVER THEM. 

THERE IS NO REASON WHY THE STATE OF GEORGIA SHOULD RISK OR ASK ITS
AGENTS TO RISK PENALTIES TO DETERMINE WHETHER THIS TAX IS COLLECTIBLE. 
RESPONDENTS WOULD LOSE NOTHING BY COLLECTING THE TAX AND TURNING IT
OVER TO THE UNITED STATES.  IF THEY DESIRE TO STAND UPON THEIR OWN
CONCEPTION OF THE LAW AND REFUSE TO COLLECT THE TAX, THEY MUST TAKE THE
RISKS OF SUCH ACTION.  EVERY OTHER TAXPAYER OR COLLECTOR OF ADMISSION
TAXES MUST MAKE THE SAME CHOICE. 

THE PROMPT COLLECTION OF REVENUE IS ESSENTIAL TO GOOD GOVERNMENT. 
SUMMARY PROCEEDINGS ARE A MATTER OF RIGHT.  FN7  THE GOVERNMENT HAS
BEEN SEDULOUS TO MAINTAIN A SYSTEM OF CORRECTIVE JUSTICE.  FN8  ANY
DEPARTURE FROM THE PRINCIPLE OF "PAY FIRST AND LITIGATE LATER"
THREATENS AN ESSENTIAL SAFEGUARD TO THE ORDERLY FUNCTIONING OF
GOVERNMENT.  HERE AN INJUNCTION IS APPROVED WHEN THE PETITIONER BELOW
HAD LITTLE MORE LEGITIMATE INTEREST IN THE COLLECTION OF THE TAX THAN A
CURIOSITY TO KNOW WHETHER THE CUSTOMERS OF ITS ATHLETIC SPECTACLES, THE
REAL TAXPAYERS, WERE CONSTITUTIONALLY SUBJECT TO SUCH AN EXACTION. 

I AM AUTHORIZED TO SAY THAT MR. JUSTICE STONE CONCURS IN THIS
OPINION.  MR. JUSTICE BLACK CONCURS IN THIS OPINION EXCEPT IN SO FAR AS
IT APPROVES THE REASONING OF THE COURT ON THE QUESTION OF STATE
IMMUNITY FROM INTERFERENCE BY FEDERAL TAXATION. 

FN1  SEC. 502(A).  EVERY PERSON RECEIVING ANY PAYMENTS FOR SUCH
ADMISSION, DUES, OR FEES SHALL COLLECT THE AMOUNT OF THE TAX IMPOSED BY
ORGANIZATION HAVING LIFE MEMBERS SHALL COLLECT FROM SUCH MEMBERS THE
AMOUNT OF THE TAX IMPOSED BY SECTION 501.  SUCH PERSONS SHALL MAKE
MONTHLY RETURNS UNDER OATH, IN DUPLICATE, AND PAY THE TAXES SO
COLLECTED TO THE COLLECTOR OF THE DISTRICT IN WHICH THE PRINCIPAL
OFFICE OR PLACE OF BUSINESS IS LOCATED.  (U.S.C., TITLE 26, SECS. 955,
956.) 

FN2  SEC. 607.  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 THE 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.  (U.S.C., TITLE 26, SEC. 1551.) 

FN3  SEC. 3224.  NO SUIT FOR THE PURPOSE OF RESTRAINING THE
ASSESSMENT OR COLLECTION OF ANY TAX SHALL BE MAINTAINED IN ANY COURT. 
(U.S.C., TITLE 26, SEC. 1543.) 

FN4  GOUGE V. HART, 250 F. 802(W.D. VA.), APPEAL DISMISSED, 251 U.S.
542; RALSTON V. HEINER, 24 F.2D 416(C.C.A. 3D); CALKINS V. SMIETANKA,
240 F. 138(N.D. ILL.); SEAMAN V. GUARANTY TRUST CO., 1 F.2D
391(S.D.N.Y.). 

FN5  LIPKE V. LEDERER, 259 U.S. 557; REGAL DRUG CORP. V. WARDELL, 260
U.S. 386. 

FN6  MILLER V. NUT MARGARINE CO., 284 U.S. 498. 

FN7  CHEATHAM V. UNITED STATES, 92 U.S. 85, 88, 89. 

FN8  COMPARE ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337. 

MR. JUSTICE BUTLER, DISSENTING. 

I AM OF OPINION THAT THE DISTRICT COURT HAD JURISDICTION. 

SO FAR AS CONCERNS THE VALIDITY OF THE TAX, THE UNIVERSITY IS THE
STATE.  IT IS AN INSTRUMENTALITY CARRYING ON THE STATE'S PROGRAM OF
PUBLIC EDUCATION.  THE HOLDING OF THE ATHLETIC CONTESTS IN QUESTION IS
AN INTEGRAL PART OF THAT PROGRAM AND DOES NOT CEASE TO BE SUCH BECAUSE
IT PRODUCES INCOME.  THE TAX IS IMPOSED DIRECTLY ON AND BURDENS THAT
ACTIVITY OF THE STATE.  THE COURT ASSUMES THE FACTS ABOVE STATED AND
DECIDES THE CASE ON THAT BASIS.  THE TAX IS LAID ON THE CHARGE PAID FOR
ADMISSION, IS TO BE BORNE BY THE PERSON PAYING FOR ADMISSION, AND IS TO
BE COLLECTED BY THE STATE AND HANDED OVER TO THE UNITED STATES.  IT IS
HARD TO UNDERSTAND HOW THE COLLECTION BY THE STATE OF FEES FOR THE
PRIVILEGE OF ATTENDANCE BRINGS, EVEN FOR THE PURPOSE OF FEDERAL
TAXATION, ITS WORK OF EDUCATION TO THE LEVEL OF SELLING INTOXICATING
LIQUOR, SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437; OHIO V.
HELVERING, 292 U.S. 360, OPERATING A RAILWAY, HELVERING V. POWERS, 293
U.S. 214, OR CONDUCTING ANY OTHER COMMERCIAL ACTIVITY.  THE TAX SEEMS
PLAINLY WITHIN THE RULE OF STATE IMMUNITY FROM FEDERAL TAXATION AS
HITHERTO UNDERSTOOD AND APPLIED.  I WOULD AFFIRM THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 
..END :














JOHNSON V. ZERBST, 304 U.S. 458 


NO. 699.  ARGUED APRIL 4, 1938.  - DECIDED MAY 23, 1938.  - 92 F.2D 748,
REVERSED. 


1.  A PERSON CHARGED WITH CRIME IN A FEDERAL COURT IS ENTITLED BY THE
SIXTH AMENDMENT TO THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE.  P. 462. 

2.  THIS RIGHT MAY BE WAIVED; BUT THE WAIVER MUST BE AN INTELLIGENT
ONE; AND WHETHER THERE WAS SUCH MUST DEPEND UPON THE PARTICULAR FACTS
AND CIRCUMSTANCES, INCLUDING BACKGROUND, EXPERIENCE, AND CONDUCT OF
ACCUSED.  P. 464. 

3.  IT IS A DUTY OF A FEDERAL COURT IN THE TRIAL OF A CRIMINAL CASE
TO PROTECT THE RIGHT OF THE ACCUSED TO COUNSEL, AND, IF HE HAS NO
COUNSEL, TO DETERMINE WHETHER HE HAS INTELLIGENTLY AND COMPETENTLY
WAIVED THE RIGHT.  IT WOULD BE FITTING THAT SUCH DETERMINATION BE MADE
A MATTER OF RECORD.  P. 465. 

4.  IF THE ACCUSED IS NOT REPRESENTED BY COUNSEL AND HAS NOT
COMPETENTLY AND INTELLIGENTLY WAIVED HIS CONSTITUTIONAL RIGHT, THE
SIXTH AMENDMENT STANDS AS A JURISDICTIONAL BAR TO A VALID CONVICTION
AND SENTENCE DEPRIVING HIM OF HIS LIFE OR HIS LIBERTY.  P. 468. 

5.  THE QUESTION WHETHER THE ASSISTANCE OF COUNSEL WAS INTELLIGENTLY
AND COMPETENTLY WAIVED BY THE PRISONER AT HIS TRIAL MAY BE DETERMINED
IN HABEAS CORPUS PROCEEDINGS ON PROOFS ALIUNDE.  P. 467. 

JOHNSON V. ZERBST, WARDEN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 303 U.S. 629, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT DISCHARGING A WRIT OF HABEAS CORPUS.  SEE 13
F.SUPP.  253. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER, WHILE IMPRISONED IN A FEDERAL PENITENTIARY, WAS DENIED
HABEAS CORPUS BY THE DISTRICT COURT.  FN1  LATER, THAT COURT GRANTED
PETITIONER A SECOND HEARING, PROMPTED BY "THE PECULIAR CIRCUMSTANCES
SURROUNDING THE CASE AND THE DESIRE OF THE COURT TO AFFORD OPPORTUNITY
TO PRESENT ANY ADDITIONAL FACTS AND VIEWS WHICH PETITIONER DESIRED TO
PRESENT."  UPON CONSIDERATION OF THE SECOND PETITION, THE COURT FOUND
THAT IT DID "NOT SUBSTANTIALLY DIFFER FROM THE" FIRST, "AND FOR THE
REASONS STATED IN THE DECISION IN THAT CASE" THE SECOND PETITION WAS
ALSO DENIED. 

PETITIONER IS SERVING SENTENCE UNDER A CONVICTION IN A UNITED STATES
DISTRICT COURT FOR POSSESSING AND UTTERING COUNTERFEIT MONEY.  IT
APPEARS FROM THE OPINION OF THE DISTRICT JUDGE DENYING HABEAS CORPUS
THAT HE BELIEVED PETITIONER WAS DEPRIVED, IN THE TRIAL COURT, OF HIS
CONSTITUTIONAL RIGHT UNDER THE PROVISION OF THE SIXTH AMENDMENT THAT
"IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT  ...
TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE."  FN2  HOWEVER, HE
HELD THAT PROCEEDINGS DEPRIVING PETITIONER OF HIS CONSTITUTIONAL RIGHT
TO ASSISTANCE OF COUNSEL WERE NOT SUFFICIENT "TO MAKE THE TRIAL VOID
AND JUSTIFY ITS ANNULMENT IN A HABEAS CORPUS PROCEEDING, BUT THAT THEY
CONSTITUTED TRIAL ERRORS OR IRREGULARITIES WHICH COULD ONLY BE
CORRECTED ON APPEAL." 

THE COURT OF APPEALS AFFIRMED  FN3  AND WE GRANTED CERTIORARI DUE TO
THE IMPORTANCE OF THE QUESTIONS INVOLVED.  FN4 

THE RECORD DISCLOSES THAT: 

PETITIONER AND ONE BRIDWELL WERE ARRESTED IN CHARLESTON, SOUTH
CAROLINA, NOVEMBER 21, 1934, CHARGED WITH FELONIOUSLY UTTERING AND
PASSING FOUR COUNTERFEIT TWENTY-DOLLAR FEDERAL RESERVE NOTES AND
POSSESSING TWENTY-ONE SUCH NOTES.  BOTH WERE THEN ENLISTED MEN IN THE
UNITED STATES MARINE CORPS, ON LEAVE.  THEY WERE BOUND OVER TO AWAIT
ACTION OF THE UNITED STATES GRAND JURY, BUT WERE KEPT IN JAIL DUE TO
INABILITY TO GIVE BAIL.  JANUARY 21, 1935, THEY WERE INDICTED; JANUARY
23, 1935, THEY WERE TAKEN TO COURT AND THERE FIRST GIVEN NOTICE OF THE
INDICTMENT; IMMEDIATELY WERE ARRAIGNED, TRIED, CONVICTED AND SENTENCED
THAT DAY TO FOUR AND ONE-HALF YEARS IN THE PENITENTIARY; AND JANUARY
25, WERE TRANSPORTED TO THE FEDERAL PENITENTIARY IN ATLANTA.  WHILE
COUNSEL HAD REPRESENTED THEM IN THE PRELIMINARY HEARINGS BEFORE THE
COMMISSIONER IN WHICH THEY - SOME TWO MONTHS BEFORE THEIR TRIAL - WERE
BOUND OVER TO THE GRAND JURY, THE ACCUSED WERE UNABLE TO EMPLOY COUNSEL
FOR THEIR TRIAL.  UPON ARRAIGNMENT, BOTH PLEADED NOT GUILTY, SAID THAT
THEY HAD NO LAWYER, AND - IN RESPONSE TO AN INQUIRY OF THE COURT -
STATED THAT THEY WERE READY FOR TRIAL.  THEY WERE THEN TRIED, CONVICTED
AND SENTENCED, WITHOUT ASSISTANCE OF COUNSEL. 

"BOTH PETITIONERS LIVED IN DISTANT CITIES OF OTHER STATES AND NEITHER
HAD RELATIVES, FRIENDS, OR ACQUAINTANCES IN CHARLESTON.  BOTH HAD
LITTLE EDUCATION AND WERE WITHOUT FUNDS.  THEY TESTIFIED THAT THEY HAD
NEVER BEEN GUILTY OF NOR CHARGED WITH ANY OFFENSE BEFORE, AND THERE WAS
NO EVIDENCE IN REBUTTAL OF THESE STATEMENTS."  FN5  IN THE HABEAS
CORPUS HEARING, PETITIONER'S EVIDENCE DEVELOPED THAT NO REQUEST WAS
DIRECTED TO THE TRIAL JUDGE TO APPOINT COUNSEL, BUT THAT SUCH REQUEST
WAS MADE TO THE DISTRICT ATTORNEY, WHO REPLIED THAT IN THE STATE OF
TRIAL (SOUTH CAROLINA) THE COURT DID NOT APPOINT COUNSEL UNLESS THE
DEFENDANT WAS CHARGED WITH A CAPITAL CRIME.  THE DISTRICT ATTORNEY
DENIED THAT PETITIONER MADE REQUEST TO HIM FOR COUNSEL OR THAT HE HAD
INDICATED PETITIONER HAD NO RIGHT TO COUNSEL.  THE ASSISTANT DISTRICT
ATTORNEY TESTIFIED THAT BRIDWELL "CROSS-EXAMINED THE WITNESSES"; AND,
IN HIS OPINION, DISPLAYED MORE KNOWLEDGE OF PROCEDURE THAN THE NORMAL
LAYMAN WOULD POSSESS.  HE DID NOT RECALL WHETHER BRIDWELL ADDRESSED THE
JURY OR NOT, BUT THE CLERK OF THE TRIAL COURT TESTIFIED "THAT MR.
JOHNSON (BRIDWELL?)  CONDUCTED HIS DEFENCE ABOUT AS WELL AS THE AVERAGE
LAYMAN USUALLY DOES IN CASES OF A SIMILAR NATURE."  CONCERNING WHAT HE
SAID TO THE JURY AND HIS CROSS-EXAMINATION OF WITNESSES, BRIDWELL
TESTIFIED "I TRIED TO SPEAK TO THE JURY AFTER THE EVIDENCE WAS IN
DURING MY TRIAL OVER IN THE EASTERN DISTRICT OF SOUTH CAROLINA.  I TOLD
THE JURY, 'I DON'T CONSIDER MYSELF A HOODLUM AS THE DISTRICT ATTORNEY
HAS MADE ME OUT SEVERAL TIMES.'  I TOLD THE JURY THAT I WAS NOT A
NATIVE OF NEW YORK AS THE DISTRICT ATTORNEY STATED, BUT WAS FROM
MISSISSIPPI AND ONLY STATIONED FOR GOVERNMENT SERVICE IN NEW YORK.  I
ONLY SAID FIFTEEN OR TWENTY WORDS.  I SAID I DIDN'T THINK I WAS A
HOODLUM AND COULD NOT HAVE BEEN ONE OF VERY LONG STANDING BECAUSE THEY
DIDN'T KEEP THEM IN THE MARINE CORPS. 

"I OBJECTED TO ONE WITNESS' TESTIMONY.  I DIDN'T ASK HIM ANY
QUESTIONS, I ONLY OBJECTED TO HIS WHOLE TESTIMONY.  AFTER THE
PROSECUTING ATTORNEY WAS FINISHED WITH THE WITNESS, HE SAID, 'YOUR
WITNESS,' AND I GOT UP AND OBJECTED TO THE TESTIMONY ON THE GROUNDS
THAT IT WAS ALL FALSE, AND THE TRIAL JUDGE SAID ANY OBJECTION I HAD I
WOULD HAVE TO BRING PROOF OR DISPROOF." 

REVIEWING THE EVIDENCE ON THE PETITION FOR HABEAS CORPUS, THE
DISTRICT COURT SAID  FN6  THAT, AFTER TRIAL, PETITIONER AND JOHNSON "
...  WERE REMANDED TO JAIL, WHERE THEY ASKED THE JAILER TO CALL A
LAWYER FOR THEM, BUT WERE NOT PERMITTED TO CONTACT ONE.  THEY DID NOT,
HOWEVER, UNDERTAKE TO GET ANY MESSAGE TO THE JUDGE. 

"  ...  JANUARY 25TH, THEY WERE TRANSPORTED BY AUTOMOBILE TO THE
FEDERAL PENITENTIARY IN ATLANTA, GA., ARRIVING  ...  THE SAME DAY. 

"THERE, AS IS THE CUSTOM, THEY WERE PLACED IN ISOLATION AND SO KEPT
FOR SIXTEEN DAYS WITHOUT BEING PERMITTED TO COMMUNICATE WITH ANY ONE
EXCEPT THE OFFICERS OF THE INSTITUTION, BUT THEY DID SEE THE OFFICERS
DAILY.  THEY MADE NO REQUEST OF THE OFFICERS TO BE PERMITTED TO SEE A
LAWYER, NOR DID THEY ASK THE OFFICERS TO PRESENT TO THE TRIAL JUDGE A
MOTION FOR NEW TRIAL OR APPLICATION FOR APPEAL OR NOTICE THAT THEY
DESIRED TO MOVE FOR A NEW TRIAL OR TO TAKE AN APPEAL. 

"ON MAY 15, 1935, PETITIONERS FILED APPLICATIONS FOR APPEAL WHICH
WERE DENIED BECAUSE FILED TOO LATE." 

THE "  ...  TIME FOR FILING A MOTION FOR NEW TRIAL AND FOR TAKING AN
APPEAL HAS BEEN LIMITED TO THREE AND FIVE DAYS."  FN7 

ONE.  THE SIXTH AMENDMENT GUARANTEES THAT "IN ALL CRIMINAL
PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT  ...  TO HAVE THE
ASSISTANCE OF COUNSEL FOR HIS DEFENCE."  THIS IS ONE OF THE SAFEGUARDS
OF THE SIXTH AMENDMENT DEEMED NECESSARY TO INSURE FUNDAMENTAL HUMAN
RIGHTS OF LIFE AND LIBERTY.  OMITTED FROM THE CONSTITUTION AS
ORIGINALLY ADOPTED, PROVISIONS OF THIS AND OTHER AMENDMENTS WERE
SUBMITTED BY THE FIRST CONGRESS CONVENED UNDER THAT CONSTITUTION AS
ESSENTIAL BARRIERS AGAINST ARBITRARY OR UNJUST DEPRIVATION OF HUMAN
RIGHTS.  THE SIXTH AMENDMENT STANDS AS A CONSTANT ADMONITION THAT IF
THE CONSTITUTIONAL SAFEGUARDS IT PROVIDES BE LOST, JUSTICE WILL NOT
"STILL BE DONE."  FN8  IT EMBODIES A REALISTIC RECOGNITION OF THE
OBVIOUS TRUTH THAT THE AVERAGE DEFENDANT DOES NOT HAVE THE PROFESSIONAL
LEGAL SKILL TO PROTECT HIMSELF WHEN BROUGHT BEFORE A TRIBUNAL WITH
POWER TO TAKE HIS LIFE OR LIBERTY, WHEREIN THE PROSECUTION IS PRESENTED
BY EXPERIENCED AND LEARNED COUNSEL.  THAT WHICH IS SIMPLE, ORDERLY AND
NECESSARY TO THE LAWYER, TO THE UNTRAINED LAYMAN MAY APPEAR INTRICATE,
COMPLEX AND MYSTERIOUS.  CONSISTENTLY WITH THE WISE POLICY OF THE SIXTH
AMENDMENT AND OTHER PARTS OF OUR FUNDAMENTAL CHARTER, THIS COURT HAS
POINTED TO "  ...  THE HUMANE POLICY OF THE MODERN CRIMINAL LAW  ...  "
WHICH NOW PROVIDES THAT A DEFENDANT "  ...  IF HE BE POOR,  ...  MAY
HAVE COUNSEL FURNISHED HIM BY THE STATE  ...  NOT INFREQUENTLY  ...
MORE ABLE THAN THE ATTORNEY FOR THE STATE."  FN9 

THE "  ...  RIGHT TO BE HEARD WOULD BE, IN MANY CASES, OF LITTLE
AVAIL IF IT DID NOT COMPREHEND THE RIGHT TO BE HEARD BY COUNSEL.  EVEN
THE INTELLIGENT AND EDUCATED LAYMAN HAS SMALL AND SOMETIMES NO SKILL IN
THE SCIENCE OF LAW.  IF CHARGED WITH CRIME, HE IS INCAPABLE, GENERALLY,
OF DETERMINING FOR HIMSELF WHETHER THE INDICTMENT IS GOOD OR BAD.  HE
IS UNFAMILIAR WITH THE RULES OF EVIDENCE.  LEFT WITHOUT THE AID OF
COUNSEL HE MAY BE PUT ON TRIAL WITHOUT A PROPER CHARGE, AND CONVICTED
UPON INCOMPETENT EVIDENCE, OR EVIDENCE IRRELEVANT TO THE ISSUE OR
OTHERWISE INADMISSIBLE.  HE LACKS BOTH THE SKILL AND KNOWLEDGE
ADEQUATELY TO PREPARE HIS DEFENCE, EVEN THOUGH HE HAVE A PERFECT ONE. 
HE REQUIRES THE GUIDING HAND OF COUNSEL AT EVERY STEP IN THE
PROCEEDINGS AGAINST HIM."  FN10  THE SIXTH AMENDMENT WITHHOLDS FROM
FEDERAL COURTS,  FN11  IN ALL CRIMINAL PROCEEDINGS, THE POWER AND
AUTHORITY TO DEPRIVE AN ACCUSED OF HIS LIFE OR LIBERTY UNLESS HE HAS OR
WAIVES THE ASSISTANCE OF COUNSEL. 

TWO.  THERE IS INSISTENCE HERE THAT PETITIONER WAIVED THIS
CONSTITUTIONAL RIGHT.  THE DISTRICT COURT DID NOT SO FIND.  IT HAS BEEN
POINTED OUT THAT "COURTS INDULGE EVERY REASONABLE PRESUMPTION AGAINST
WAIVER" OF FUNDAMENTAL CONSTITUTIONAL RIGHTS  FN12  AND THAT WE "DO NOT
PRESUME ACQUIESCENCE IN THE LOSS OF FUNDAMENTAL RIGHTS."  FN13  A
WAIVER IS ORDINARILY AN INTENTIONAL RELINQUISHMENT OR ABANDONMENT OF A
KNOWN RIGHT OR PRIVILEGE.  THE DETERMINATION OF WHETHER THERE HAS BEEN
AN INTELLIGENT WAIVER OF THE RIGHT TO COUNSEL MUST DEPEND, IN EACH
CASE, UPON THE PARTICULAR FACTS AND CIRCUMSTANCES SURROUNDING THAT
CASE, INCLUDING THE BACKGROUND, EXPERIENCE, AND CONDUCT OF THE
ACCUSED. 

PATTON V. UNITED STATES, 281 U.S. 276, DECIDED THAT AN ACCUSED MAY,
UNDER CERTAIN CIRCUMSTANCES, CONSENT TO A JURY OF ELEVEN AND WAIVE THE
RIGHT TO TRIAL AND VERDICT BY A CONSTITUTIONAL JURY OF TWELVE MEN.  THE
QUESTION OF WAIVER WAS THERE CONSIDERED ON DIRECT APPEAL FROM THE
CONVICTION, AND NOT BY COLLATERAL ATTACK ON HABEAS CORPUS.  HOWEVER,
THAT DECISION MAY BE HELPFUL IN INDICATING HOW, AND IN WHAT MANNER, AN
ACCUSED MAY - BEFORE HIS TRIAL RESULTS IN FINAL JUDGMENT AND CONVICTION
- WAIVE THE RIGHT TO ASSISTANCE OF COUNSEL.  THE PATTON CASE NOTED
APPROVINGLY A STATE COURT DECISION  FN14  POINTING OUT THAT THE HUMANE
POLICY OF MODERN CRIMINAL LAW HAD ALTERED CONDITIONS WHICH HAD EXISTED
IN THE "DAYS WHEN THE ACCUSED COULD NOT TESTIFY IN HIS OWN BEHALF,
(AND) WAS NOT FURNISHED COUNSEL," AND WHICH HAD MADE IT POSSIBLE TO
CONVICT A MAN WHEN HE WAS "WITHOUT MONEY, WITHOUT COUNSEL, WITHOUT
ABILITY TO SUMMON WITNESSES AND NOT PERMITTED TO TELL HIS OWN STORY,
...  " 

THE CONSTITUTIONAL RIGHT OF AN ACCUSED TO BE REPRESENTED BY COUNSEL
INVOKES, OF ITSELF, THE PROTECTION OF A TRIAL COURT, IN WHICH THE
ACCUSED - WHOSE LIFE OR LIBERTY IS AT STAKE - IS WITHOUT COUNSEL.  THIS
PROTECTING DUTY IMPOSES THE SERIOUS AND WEIGHTY RESPONSIBILITY UPON THE
TRIAL JUDGE OF DETERMINING WHETHER THERE IS AN INTELLIGENT AND
COMPETENT WAIVER BY THE ACCUSED.  WHILE AN ACCUSED MAY WAIVE THE RIGHT
TO COUNSEL, WHETHER THERE IS A PROPER WAIVER SHOULD BE CLEARLY
DETERMINED BY THE TRIAL COURT, AND IT WOULD BE FITTING AND APPROPRIATE
FOR THAT DETERMINATION TO APPEAR UPON THE RECORD. 

THREE.  THE DISTRICT COURT, HOLDING PETITIONER COULD NOT OBTAIN
RELIEF BY HABEAS CORPUS, SAID: 

"IT IS UNFORTUNATE, IF PETITIONERS LOST THEIR RIGHT TO A NEW TRIAL
THROUGH IGNORANCE OR NEGLIGENCE, BUT SUCH MISFORTUNE CANNOT GIVE THIS
COURT JURISDICTION IN A HABEAS CORPUS CASE TO REVIEW AND CORRECT THE
ERRORS COMPLAINED OF." 

THE PURPOSE OF THE CONSTITUTIONAL GUARANTY OF A RIGHT TO COUNSEL IS
TO PROTECT AN ACCUSED FROM CONVICTION RESULTING FROM HIS OWN IGNORANCE
OF HIS LEGAL AND CONSTITUTIONAL RIGHTS, AND THE GUARANTY WOULD BE
NULLIFIED BY A DETERMINATION THAT AN ACCUSED'S IGNORANT FAILURE TO
CLAIM HIS RIGHTS REMOVES THE PROTECTION OF THE CONSTITUTION.  TRUE,
HABEAS CORPUS CANNOT BE USED AS A MEANS OF REVIEWING ERRORS OF LAW AND
IRREGULARITIES - NOT INVOLVING THE QUESTION OF JURISDICTION - OCCURRING
DURING THE COURSE OF TRIAL; FN15  AND THE "WRIT OF HABEAS CORPUS CANNOT
BE USED AS A WRIT OF ERROR."  FN16  THESE PRINCIPLES, HOWEVER, MUST BE
CONSTRUED AND APPLIED SO AS TO PRESERVE - NOT DESTROY - CONSTITUTIONAL
SAFEGUARDS OF HUMAN LIFE AND LIBERTY.  THE SCOPE OF INQUIRY IN HABEAS
CORPUS PROCEEDINGS HAS BEEN BROADENED - NOT NARROWED - SINCE THE
ADOPTION OF THE SIXTH AMENDMENT.  IN SUCH A PROCEEDING, "IT WOULD BE
CLEARLY ERRONEOUS TO CONFINE THE INQUIRY TO THE PROCEEDINGS AND
JUDGMENT OF THE TRIAL COURT"  FN17  AND THE PETITIONED COURT HAS "POWER
TO INQUIRE WITH REGARD TO THE JURISDICTION OF THE INFERIOR COURT,
EITHER IN RESPECT TO THE SUBJECT MATTER OR TO THE PERSON, EVEN IF SUCH
INQUIRY  ...  (INVOLVES) AN EXAMINATION OF FACTS OUTSIDE OF, BUT NOT
INCONSISTENT WITH, THE RECORD."  FN18  CONGRESS HAS EXPANDED THE RIGHTS
OF A PETITIONER FOR HABEAS CORPUS  FN19  AND THE "  ...  EFFECT IS TO
SUBSTITUTE FOR THE BARE LEGAL REVIEW THAT SEEMS TO HAVE BEEN THE LIMIT
OF JUDICIAL AUTHORITY UNDER THE COMMON-LAW PRACTICE, AND UNDER THE ACT
OF 31 CAR.  II, C. 2, A MORE SEARCHING INVESTIGATION, IN WHICH THE
APPLICANT IS PUT UPON HIS OATH TO SET FORTH THE TRUTH OF THE MATTER
RESPECTING THE CAUSES OF HIS DETENTION, AND THE COURT, UPON DETERMINING
THE ACTUAL FACTS, IS TO 'DISPOSE OF THE PARTY AS LAW AND JUSTICE
REQUIRE.'    "THERE BEING NO DOUBT OF THE AUTHORITY OF THE CONGRESS TO
THUS LIBERALIZE THE COMMON LAW PROCEDURE ON HABEAS CORPUS IN ORDER TO
SAFEGUARD THE LIBERTY OF ALL PERSONS WITHIN THE JURISDICTION OF THE
UNITED STATES AGAINST INFRINGEMENT THROUGH ANY VIOLATION OF THE
CONSTITUTION OR A LAW OR TREATY ESTABLISHED THEREUNDER, IT RESULTS THAT
UNDER THE SECTIONS CITED A PRISONER IN CUSTODY PURSUANT TO THE FINAL
JUDGMENT OF A STATE COURT OF CRIMINAL JURISDICTION MAY HAVE A JUDICIAL
INQUIRY IN A COURT OF THE UNITED STATES INTO THE VERY TRUTH AND
SUBSTANCE OF THE CAUSES OF HIS DETENTION, ALTHOUGH IT MAY BECOME
NECESSARY TO LOOK BEHIND AND BEYOND THE RECORD OF HIS CONVICTION TO A
SUFFICIENT EXTENT TO TEST THE JURISDICTION OF THE STATE COURT TO
PROCEED TO A JUDGMENT AGAINST HIM.  ... 

"  ...  IT IS OPEN TO THE COURTS OF THE UNITED STATES UPON AN
APPLICATION FOR A WRIT OF HABEAS CORPUS TO LOOK BEYOND FORMS AND
INQUIRE INTO THE VERY SUBSTANCE OF THE MATTER,  ...  "  FN20 

PETITIONER, CONVICTED AND SENTENCED WITHOUT THE ASSISTANCE OF
COUNSEL, CONTENDS THAT HE WAS IGNORANT OF HIS RIGHT TO COUNSEL, AND
INCAPABLE OF PRESERVING HIS LEGAL AND CONSTITUTIONAL RIGHTS DURING
TRIAL.  URGING THAT - AFTER CONVICTION - HE WAS UNABLE TO OBTAIN A
LAWYER; WAS IGNORANT OF THE PROCEEDINGS TO OBTAIN NEW TRIAL OR APPEAL
AND THE TIME LIMITS GOVERNING BOTH; AND THAT HE DID NOT POSSESS THE
REQUISITE SKILL OR KNOWLEDGE PROPERLY TO CONDUCT AN APPEAL, HE SAYS
THAT IT WAS - AS A PRACTICAL MATTER - IMPOSSIBLE FOR HIM TO OBTAIN
RELIEF BY APPEAL.  IF THESE CONTENTIONS BE TRUE IN FACT, IT NECESSARILY
FOLLOWS THAT NO LEGAL PROCEDURAL REMEDY IS AVAILABLE TO GRANT RELIEF
FOR A VIOLATION OF CONSTITUTIONAL RIGHTS, UNLESS THE COURTS PROTECT
PETITIONER'S RIGHTS BY HABEAS CORPUS.  OF THE CONTENTION THAT THE LAW
PROVIDES NO EFFECTIVE REMEDY FOR SUCH A DEPRIVATION OF RIGHTS AFFECTING
LIFE AND LIBERTY, IT MAY WELL BE SAID - AS IN MOONEY V. HOLOHAN, 294
U.S. 103, 113 - THAT IT "FALLS WITH THE PREMISE."  TO DEPRIVE A CITIZEN
OF HIS ONLY EFFECTIVE REMEDY WOULD NOT ONLY BE CONTRARY TO THE
"RUDIMENTARY DEMANDS OF JUSTICE"  FN21  BUT DESTRUCTIVE OF A
CONSTITUTIONAL GUARANTY SPECIFICALLY DESIGNED TO PREVENT INJUSTICE. 

SINCE THE SIXTH AMENDMENT CONSTITUTIONALLY ENTITLES ONE CHARGED WITH
CRIME TO THE ASSISTANCE OF COUNSEL, COMPLIANCE WITH THIS CONSTITUTIONAL
MANDATE IS AN ESSENTIAL JURISDICTIONAL PREREQUISITE TO A FEDERAL
COURT'S AUTHORITY TO DEPRIVE AN ACCUSED OF HIS LIFE OR LIBERTY.  WHEN
THIS RIGHT IS PROPERLY WAIVED, THE ASSISTANCE OF COUNSEL IS NO LONGER A
NECESSARY ELEMENT OF THE COURT'S JURISDICTION TO PROCEED TO CONVICTION
AND SENTENCE.  IF THE ACCUSED, HOWEVER, IS NOT REPRESENTED BY COUNSEL
AND HAS NOT COMPETENTLY AND INTELLIGENTLY WAIVED HIS CONSTITUTIONAL
RIGHT, THE SIXTH AMENDMENT STANDS AS A JURISDICTIONAL BAR TO A VALID
CONVICTION AND SENTENCE DEPRIVING HIM OF HIS LIFE OR HIS LIBERTY.  A
COURT'S JURISDICTION AT THE BEGINNING OF TRIAL MAY BE LOST "IN THE
COURSE OF THE PROCEEDINGS" DUE TO FAILURE TO COMPLETE THE COURT - AS
THE SIXTH AMENDMENT REQUIRES - BY PROVIDING COUNSEL FOR AN ACCUSED WHO
IS UNABLE TO OBTAIN COUNSEL, WHO HAS NOT INTELLIGENTLY WAIVED THIS
CONSTITUTIONAL GUARANTY, AND WHOSE LIFE OR LIBERTY IS AT STAKE.  FN22
IF THIS REQUIREMENT OF THE SIXTH AMENDMENT IS NOT COMPLIED WITH, THE
COURT NO LONGER HAS JURISDICTION TO PROCEED.  THE JUDGMENT OF
CONVICTION PRONOUNCED BY A COURT WITHOUT JURISDICTION IS VOID, AND ONE
IMPRISONED THEREUNDER MAY OBTAIN RELEASE BY HABEAS CORPUS.  FN23  A
JUDGE OF THE UNITED STATES - TO WHOM A PETITION FOR HABEAS CORPUS IS
ADDRESSED - SHOULD BE ALERT TO EXAMINE "THE FACTS FOR HIMSELF WHEN IF
TRUE AS ALLEGED THEY MAKE THE TRIAL ABSOLUTELY VOID."  FN24 

IT MUST BE REMEMBERED, HOWEVER, THAT A JUDGMENT CAN NOT BE LIGHTLY
SET ASIDE BY COLLATERAL ATTACK, EVEN ON HABEAS CORPUS.  WHEN
COLLATERALLY ATTACKED, THE JUDGMENT OF A COURT CARRIES WITH IT A
PRESUMPTION OF REGULARITY.  FN25  WHERE A DEFENDANT, WITHOUT COUNSEL,
ACQUIESCES IN A TRIAL RESULTING IN HIS CONVICTION AND LATER SEEKS
RELEASE BY THE EXTRAORDINARY REMEDY OF HABEAS CORPUS, THE BURDEN OF
PROOF RESTS UPON HIM TO ESTABLISH THAT HE DID NOT COMPETENTLY AND
INTELLIGENTLY WAIVE HIS CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL. 
IF IN A HABEAS CORPUS HEARING, HE DOES MEET THIS BURDEN AND CONVINCES
THE COURT BY A PREPONDERANCE OF EVIDENCE THAT HE NEITHER HAD COUNSEL
NOR PROPERLY WAIVED HIS CONSTITUTIONAL RIGHT TO COUNSEL, IT IS THE DUTY
OF THE COURT TO GRANT THE WRIT. 

IN THIS CASE, PETITIONER WAS CONVICTED WITHOUT ENJOYING THE
ASSISTANCE OF COUNSEL.  BELIEVING HABEAS CORPUS WAS NOT AN AVAILABLE
REMEDY, THE DISTRICT COURT BELOW MADE NO FINDINGS AS TO WAIVER BY
PETITIONER.  IN THIS STATE OF THE RECORD WE DEEM IT NECESSARY TO REMAND
THE CAUSE.  IF - ON REMAND - THE DISTRICT COURT FINDS FROM ALL OF THE
EVIDENCE THAT PETITIONER HAS SUSTAINED THE BURDEN OF PROOF RESTING UPON
HIM AND THAT HE DID NOT COMPETENTLY AND INTELLIGENTLY WAIVE HIS RIGHT
TO COUNSEL, IT WILL FOLLOW THAT THE TRIAL COURT DID NOT HAVE
JURISDICTION TO PROCEED TO JUDGMENT AND CONVICTION OF PETITIONER, AND
HE WILL THEREFORE BE ENTITLED TO HAVE HIS PETITION GRANTED.  IF
PETITIONER FAILS TO SUSTAIN THIS BURDEN, HE IS NOT ENTITLED TO THE
WRIT. 

THE CAUSE IS REVERSED AND REMANDED TO THE DISTRICT COURT FOR ACTION
IN HARMONY WITH THIS OPINION.  REVERSED. 

FN1  13 F.SUPP.  253. 

FN2  THE SIXTH AMENDMENT OF THE CONSTITUTION PROVIDES THAT "IN ALL
CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY
AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE
BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

FN3  92 F.2D 748. 

FN4  303 U.S. 629. 

FN5  OPINION OF THE DISTRICT JUDGE, 13 F.SUPP.  253, 254. 

FN6  13 F.SUPP.  253, 254. 

FN7  13 F.SUPP.  AT 256; SEE, RULES OF PRACTICE AND PROCEDURE
(CRIMINAL APPEALS RULES), ADOPTED MAY 7, 1934, II, III. 

FN8  CF., PALKO V. CONNECTICUT, 302 U.S. 319, 325. 

FN9  PATTON V. UNITED STATES, 281 U.S. 276, 308. 

FN10  POWELL V. ALABAMA, 287 U.S. 45, 68, 69. 

FN11  CF., BARRON V. THE MAYOR, 7 PET. 243, 247; EDWARDS V. ELLIOTT,
21 WALL.  532, 557. 

FN12  AETNA INS. CO. V. KENNEDY, 301 U.S. 389, 393; HODGES V. EASTON,
106 U.S. 408, 412. 

FN13  OHIO BELL TELEPHONE CO. V. PUBLIC UTILITIES COMM'N, 301 U.S.
292, 307. 

FN14  HACK V. STATE, 141 WIS. 346, 351; 124 N.W. 492. 

FN15  CF., EX PARTE WATKINS, 3 PET. 193; KNEWAL V. EGAN, 268 U.S.
442; HARLAN V. MCGOURIN, 218 U.S. 442. 

FN16  WOOLSEY V. BEST, 299 U.S. 1, 2. 

FN17  FRANK V. MANGUM, 237 U.S. 309, 327. 

FN18  IN RE MAYFIELD, 141 U.S. 107, 116; CUDDY, PETITIONER, 131 U.S.
280. 

FN19  28 U.S.C., CH. 14, SEC. 451, ET SEQ. 

FN20  FRANK V. MANGUM, SUPRA, 330, 331; CF., MOORE V. DEMPSEY, 261
U.S. 86; MOONEY V. HOLOHAN, 294 U.S. 103; HANS NIELSEN, PETITIONER, 131
U.S. 176. 

FN21  CF., MOONEY V. HOLOHAN, SUPRA, 112. 

FN22  CF., FRANK V. MANGUM, SUPRA, 327. 

FN23  HANS NIELSEN, PETITIONER, SUPRA. 

FN24  CF., MOORE V. DEMPSEY, 261 U.S. 86, 92; PATTON V. UNITED
STATES, 281 U.S. 276, 312, 313. 

FN25  CUDDY, PETITIONER, SUPRA 

MR. JUSTICE REED CONCURS IN THE REVERSAL. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE JUDGMENT OF THE COURT
BELOW SHOULD BE AFFIRMED. 

MR. JUSTICE BUTLER IS OF THE OPINION THAT THE RECORD SHOWS THAT
PETITIONER WAIVED THE RIGHT TO HAVE COUNSEL, THAT THE TRIAL COURT HAD
JURISDICTION, AND THAT THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
SHOULD BE AFFIRMED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




LONE STAR GAS CO. V. TEXAS, 304 U.S. 224 


NO. 313.  ARGUED MARCH 28, 1938.  - DECIDED MAY 16, 1938.  - 86 S.W.2D
484, 506, REVERSED. 


1.  A SPECIAL ISSUE SUBMITTED TO A JURY AS TO WHETHER A GAS RATE FIXED
BY A TEXAS COMMISSION WAS "UNREASONABLE AND UNJUST" TO THE DEFENDANT
GAS COMPANY,  - HELD TANTAMOUNT TO THE ISSUE OF CONFISCATION, IN VIEW
OF INSTRUCTIONS GIVEN THE JURY ON THE MEANING OF "FAIR RETURN" AND
"UNREASONABLE AND UNJUST."  CF. UNITED GAS PUBLIC SERVICE CO. V. TEXAS,
303 U.S. 123, 141.  P. 231. 

2.  UNDER THE TEXAS LAW, THE COURT OF CIVIL APPEALS IS WITHOUT
AUTHORITY TO SUBSTITUTE FINDINGS MADE BY ITSELF FOR THE DETERMINATIONS
OF A JURY IN A RATE CASE.  P. 231. 

3.  A TEXAS CORPORATION PRODUCED AND PURCHASED GAS IN TEXAS AND
OKLAHOMA WHICH IT PIPED AND DISPOSED OF TO DISTRIBUTING COMPANIES,
CLOSELY AFFILIATED WITH ITSELF THROUGH STOCK OWNERSHIP.  THE
DISTRIBUTORS SOLD IT TO CONSUMERS IN TEXAS CITIES.  MOST OF IT WAS
PROCURED AND TRANSPORTED ENTIRELY IN TEXAS; BUT SOME, MOVING FROM
TEXAS, WAS PIPED FOR A DISTANCE IN OKLAHOMA AND BACK INTO TEXAS, WHILE
A LESSER PROPORTION WAS PROCURED IN OKLAHOMA AND PIPED INTO TEXAS. 
THIS LAST PORTION, AFTER REACHING TEXAS, WAS RUN THROUGH EXTRACTION
PLANTS, LEAVING THE RESIDUE OF IT CHANGED IN COMPOSITION AND THERMIC
VALUE; MUCH OF IT WAS STORED THERE; AND, IN PASSING THROUGH THE
PIPELINE SYSTEM, IT WAS COMMINGLED WITH THE TEXAS GAS AND DIVIDED AND
REDIVIDED UNTIL TRACING OR IDENTIFICATION BY VOLUME AT ANY "CITY GATE"
DELIVERY WAS MADE IMPOSSIBLE; AT VARIOUS POINTS BEFORE DELIVERY ITS
PRESSURE WAS REDUCED AND THE GAS EXPANDED.  THE COMPANY ALSO SOLD GAS
IN OKLAHOMA.  A TEXAS COMMISSION HAVING BEFORE IT PROCEEDINGS INVOLVING
THE REASONABLENESS OF THE RATES CHARGED BY THE DISTRIBUTORS TO TEXAS
CONSUMERS, FOUND IT NECESSARY TO DETERMINE WHAT WOULD BE A REASONABLE
CHARGE FOR THE GAS DELIVERED TO THE DISTRIBUTORS BY THE PIPELINE
COMPANY AT THE "CITY GATES," AND IN SO DOING MADE AN ORDER FIXING THE
CHARGE BASED ON ALL OF THE PROPERTY AND OPERATIONS OF THE PIPELINE
COMPANY CONSIDERED AS AN INTEGRATED WHOLE.  HELD: 

(1)  THAT THE ORDER WAS NOT INVALID UNDER THE COMMERCE CLAUSE. 

(A)  IT DID NOT ATTEMPT TO REGULATE THE INTERSTATE TRANSPORTATION. 
P. 236. 

(B)  IT COULD NOT BE REGARDED IN THE CIRCUMSTANCES AS REGULATING
SALES AND DELIVERIES IN INTERSTATE COMMERCE.  ID. 

(C)  THE DISTRIBUTORS AND THE PIPELINE COMPANY WERE BUT ARMS OF THE
SAME ORGANIZATION DOING AN INTRASTATE BUSINESS IN TEXAS, AND THE
COMMISSION WAS ENTITLED TO ASCERTAIN AND DETERMINE WHAT WAS A
REASONABLE CHARGE FOR THE GAS SUPPLIED THROUGH THIS ORGANIZATION TO
CONSUMERS WITHIN THE STATE.  P. 237. 

(D)  THE FACT THAT ONE OF THE PIPE LINES CUT ACROSS A CORNER OF
ANOTHER STATE DID NOT MAKE IT ANY THE LESS A PART OF A SYSTEM SERVING
TEXAS GAS TO COMMUNITIES IN TEXAS; AND THE COMMISSION, IN TAKING
ACCOUNT OF THIS LINE AS PART OF THE PROPERTY ON WHICH THE INTRASTATE
PIPELINE RATE SHOULD BE BASED, WAS NOT REGULATING, OR IMPOSING ANY
BURDEN UPON, INTERSTATE COMMERCE OR CONFLICTING WITH ANY FEDERAL
REGULATION.  P. 238. 

(E)  THE MANNER IN WHICH THE GAS PURCHASED IN AND PIPED FROM OKLAHOMA
WAS TREATED AND HANDLED IN TEXAS MADE IT AN INTEGRAL PART OF THE GAS
SUPPLIED TO THE TEXAS COMMUNITIES IN THE PIPELINE COMPANY'S INTRASTATE
BUSINESS, AND THE COMMISSION WAS ENTITLED TO CONSIDER IT IN FIXING THE
RATE.  P. 238. 

(2)  THIS WAS NOT A CASE WHERE THE SEGREGATION OF INTRASTATE AND
INTERSTATE PROPERTIES AND BUSINESSES WAS ESSENTIAL IN ORDER TO CONFINE
THE EXERCISE OF STATE POWER TO ITS OWN PROVINCE.  CF. SMITH V. ILLINOIS
BELL TELEPHONE CO., 282 U.S. 133, 148, 149.  P. 241. 

(3)  THE COMMISSION HAVING CONSIDERED ALL THE PIPELINE COMPANY'S
PROPERTIES AND OPERATIONS AS AN INTEGRATED SYSTEM IN FIXING THE TEXAS
RATE, THE COMPANY WAS ENTITLED TO INTRODUCE EVIDENCE TO OVERCOME THE
COMMISSION'S FINDINGS, ON THE SAME BASIS, IN AN EFFORT TO PROVE THE
RATE CONFISCATORY; AND THE COMPANY HAVING SUCCEEDED IN THIS AND WON A
JUDGMENT HOLDING THE RATE CONFISCATORY, IT WAS ERROR FOR THE APPELLATE
COURT TO REVERSE THE JUDGMENT AND UPHOLD THE RATE BECAUSE THE COMPANY
HAD FAILED TO MAKE A PROPER SEGREGATION OF INTERSTATE AND INTRASTATE
PROPERTIES AND BUSINESS.  P. 240. 

LONE STAR GAS CO. V. TEXAS ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS FOR THE THIRD SUPREME JUDICIAL
DISTRICT OF TEXAS. 

APPEAL FROM A JUDGMENT OF THE COURT OF CIVIL APPEALS OF TEXAS WHICH
SUSTAINED A RATE ON GAS, FIXED BY THE RAILROAD COMMISSION, THEREIN
REVERSING A JUDGMENT TO THE CONTRARY, ADJUDGING THE RATE CONFISCATORY,
IN AN ACTION BROUGHT BY THE COMMISSION TO ENFORCE IT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE RAILROAD COMMISSION OF TEXAS BROUGHT THIS ACTION, UNDER ARTICLE
6059 OF THE REVISED CIVIL STATUTES OF TEXAS, TO ENFORCE THE
COMMISSION'S ORDER OF SEPTEMBER 13, 1933, PRESCRIBING THE RATE FOR
DOMESTIC GAS SUPPLIED BY APPELLANT, LONE STAR GAS COMPANY, TO
DISTRIBUTING COMPANIES IN TEXAS.  THE RATE WAS FIXED AT NOT TO EXCEED
32 CENTS PER THOUSAND CUBIC FEET INSTEAD OF THE EXISTING CHARGE OF 40
CENTS.  THE DISTRICT COURT OF TRAVIS COUNTY, UPON THE VERDICT OF A JURY
FINDING THE PRESCRIBED RATE TO BE UNREASONABLE, DENIED RELIEF AND
ENJOINED THE COMMISSION AND THE STATE OFFICIALS FROM ENFORCING THE
COMMISSION'S ORDER.  THE COURT OF CIVIL APPEALS REVERSED THE JUDGMENT
AND HELD THE ORDER TO BE VALID.  86 S.W.(2D) 484.  REHEARING WAS
DENIED.  86 S.W.(2D) 506.  THE SUPREME COURT OF THE STATE REFUSED WRIT
OF ERROR AND THE CASE COMES HERE ON APPEAL. 

APPELLANT, A TEXAS CORPORATION, OPERATES ABOUT 4,000 MILES OF PIPE
LINES LOCATED IN TEXAS AND OKLAHOMA THROUGH WHICH IT TRANSPORTS NATURAL
GAS TO THE "CITY GATES" OF ABOUT 300 CITIES AND TOWNS IN THOSE STATES
AND SELLS AND DELIVERS THE GAS IN WHOLESALE QUANTITIES TO DISTRIBUTING
COMPANIES.  THE LATTER COMPANIES, WITH TWO EXCEPTIONS, ARE AFFILIATED
WITH APPELLANT, BEING SUBSIDIARIES OF THE SAME PARENT CORPORATION.  ONE
OF APPELLANT'S PIPE LINES EXTENDS FROM A GAS FIELD IN WHEELER COUNTY,
TEXAS, A PART OF THE TEXAS PANHANDLE FIELD, CROSSES THE SOUTHWESTERN
CORNER OF OKLAHOMA, IS TAPPED FOR GAS DELIVERED AT HOLLIS, OKLAHOMA,
AND RETURNING INTO TEXAS RUNS GENERALLY IN A SOUTHEASTERLY DIRECTION TO
VARIOUS TEXAS POINTS.  AT OKLAUNION, TEXAS, THE LINE IS TAPPED BY A
BRANCH LINE WHICH EXTENDS NORTHWARD INTO OKLAHOMA AND SUPPLIES CERTAIN
CITIES IN THAT STATE.  AT PETROLIA, TEXAS, THE LINE IS JOINED BY LINES
COMING FROM OKLAHOMA. 

THE COMMISSION DEALT SOLELY WITH THE RATE FOR THE GAS DELIVERED IN
TEXAS.  THIS CONSISTED (1) OF GAS PRODUCED OR PURCHASED IN TEXAS AND
TRANSPORTED AND DELIVERED ENTIRELY WITHIN THAT STATE, BEING UPWARDS OF
70 PER CENT. OF THE TOTAL; (2) THAT PRODUCED OR PURCHASED IN OKLAHOMA
AND TRANSPORTED THROUGH APPELLANT'S LINES INTO TEXAS WHICH, ON
APPELLANT'S CALCULATION, AMOUNTED AT THE AVERAGE OF THE FIVE-YEAR
PERIOD 1929-1933 TO ABOUT 11 PER CENT. OF THE TOTAL; AND (3) THAT
PRODUCED OR PURCHASED IN THE PANHANDLE FIELD IN WHEELER COUNTY, TEXAS,
AMOUNTING ON THE SAME COMPUTATION TO ABOUT 17 PER CENT. OF THE TOTAL. 

THE COMMISSION GAVE A FULL HEARING IN WHICH APPELLANT PARTICIPATED. 
THE COMMISSION TREATED APPELLANT'S PROPERTIES AS AN INTEGRATED SYSTEM,
AND IN THAT WAY "CONSIDERED THE OKLAHOMA PROPERTIES AND OPERATIONS AND
THE EFFECT THEREOF ON THE REVENUES AND EXPENDITURES WITHIN TEXAS,"
FIXING THE RATE "FOR APPLICATION WITHIN THE JURISDICTION OF TEXAS." 
APPELLANT MADE NO OBJECTION TO THAT COURSE.  THE COMMISSION DETERMINED
THE RATE BASE AS OF DECEMBER 31, 1931, AT $46,246,617.53, BEING
$4,674,285.91 FOR PRODUCTION PROPERTIES AND $41,572,331.62 FOR
TRANSMISSION PROPERTIES.  THE COMMISSION CONSIDERED APPELLANT'S
REVENUES AND EXPENSES FOR A SIX-YEAR PERIOD, 1927 TO 1932, AND MADE THE
RATE ON THE BASIS OF SIX PER CENT. AS A MINIMUM FAIR RATE OF RETURN. 

APPELLANT BROUGHT SUIT IN THE FEDERAL COURT, ATTACKING THE RATE ON
CONSTITUTIONAL GROUNDS, BUT THAT COURT STAYED ITS PROCEEDINGS WHEN THE
PRESENT ACTION WAS BROUGHT BY THE COMMISSION.  IN THIS ACTION APPELLANT
FIRST SUBMITTED PLEAS TO THE JURISDICTION OF THE STATE COURT, AND PLEAS
IN ABATEMENT, WHICH WERE OVERRULED.  IN ITS ANSWER APPELLANT ATTACKED
THE RATE ORDER UPON THE GROUNDS (1) THAT TRANSPORTATION AND SALES TO
LOCAL DISTRIBUTING COMPANIES THROUGH HIGH PRESSURE LINES "OF GAS
PRODUCED IN WHEELER COUNTY, TEXAS, AND TRANSPORTED INTO AND THROUGH
OKLAHOMA AND BACK INTO TEXAS WITHOUT INTERRUPTION" CONSTITUTED
INTERSTATE COMMERCE, AND THAT THE ORDER VIOLATED THE COMMERCE CLAUSE OF
THE FEDERAL CONSTITUTION; AND THAT THE SAME WAS TRUE OF THE GAS
PRODUCED OR PURCHASED BY APPELLANT IN OKLAHOMA AND TRANSPORTED IN HIGH
PRESSURE LINES TO TEXAS FOR SALE AND DELIVERY THERE; AND (2) THAT THE
PRESCRIBED RATE WAS CONFISCATORY AND REPUGNANT TO THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT. 

THE TRIAL ON THE MERITS, BEFORE A JURY, WAS BEGUN ON JUNE 11, 1934,
AND WAS ENTIRELY DE NOVO.  THE STATE INTRODUCED IN EVIDENCE THE
COMMISSION'S ORDER (TO WHICH APPELLANT UNSUCCESSFULLY OBJECTED AS BEING
VOID IN ITS ENTIRETY BECAUSE APPLICABLE TO ITS INTERSTATE BUSINESS),
THE STAY ORDER GRANTED BY THE FEDERAL COURT, AND A STIPULATION THAT THE
PRESCRIBED RATE HAD NOT BEEN PUT INTO EFFECT.  THE RECORD OF EVIDENCE
BEFORE THE COMMISSION WAS OFFERED BUT WAS NOT RECEIVED.  ON THIS FORMAL
PROOF THE STATE RESTED.  APPELLANT MOVED FOR A DIRECTED VERDICT WHICH
WAS DENIED AND APPELLANT THEN WENT FORWARD WITH ITS EVIDENCE.  THE
REPORT AND FINDINGS OF THE COMMISSION UPON WHICH THE ORDER WAS BASED
WERE INTRODUCED.  IN REBUTTAL OF THE COMMISSION'S FINDINGS, APPELLANT
SUBMITTED AN APPRAISAL OF ITS PROPERTIES AS AN INTEGRATED OPERATING
SYSTEM AS OF JANUARY 1, 1933.  THAT APPRAISAL WAS VOLUMINOUS, SHOWING
$73,983,405.57 AS THE COST OF REPRODUCTION NEW.  EVIDENCE WAS OFFERED
AS TO THE AMOUNT TO BE DEDUCTED FOR ACCRUED DEPRECIATION AND ON THAT
BASIS THE FAIR VALUE WAS CLAIMED TO BE $69,738,021.16.  THE APPRAISAL
WAS LATER BROUGHT DOWN TO MAY 1, 1934, SHOWING AN INCREASE IN MATERIAL
AND CONSTRUCTION COSTS BETWEEN JANUARY 1, 1933, AND MAY 1, 1934, OF
$1,579,381.72.  THE BOOK COSTS OF THE PROPERTIES WERE ALSO INTRODUCED,
RANGING FROM $47,776,749.63, ON DECEMBER 31, 1931, TO $49,858,751.23 AS
OF APRIL 30, 1934.  APPELLANT CLAIMED THAT THE BOOKS UNDERSTATED THE
ACTUAL COSTS.  THERE WAS EVIDENCE WITH RESPECT TO THE ANNUAL ACCRUALS
TO PROVIDE FOR DEPRECIATION, DEPLETION AND AMORTIZATION.  THE OPERATING
EXPENSES AND REVENUES WERE SHOWN FOR THE YEARS 1931, 1932 AND 1933, AND
FOR THE TWELVE MONTHS ENDING APRIL 30, 1934.  IN THIS EVIDENCE THERE
WAS NO SEGREGATION OF APPELLANT'S PROPERTIES OR OPERATIONS AS BETWEEN
TEXAS AND OKLAHOMA OR BETWEEN INTRASTATE AND INTERSTATE BUSINESS,
APPELLANT INSISTING THAT IT WAS ENTITLED TO ATTACK THE COMMISSION'S
ORDER UPON THE SAME INCLUSIVE BASIS WHICH THE COMMISSION HAD USED. 

THE STATE INSISTED THAT IF APPELLANT WISHED TO MAINTAIN AS A DEFENSE
THAT THE ORDER WAS INVALID BECAUSE IT SOUGHT TO REGULATE OPERATIONS
WHICH WERE EXEMPT FROM STATE CONTROL, APPELLANT SHOULD MAKE A
SEGREGATION, FIRST AS BETWEEN ITS ADMITTEDLY INTRASTATE OPERATIONS AND
THOSE CLAIMED TO BE INTERSTATE, AND SECOND, AS BETWEEN TEXAS AND
OKLAHOMA PROPERTIES AND OPERATIONS.  AFTER THE VOLUMINOUS EVIDENCE
ABOVE MENTIONED HAD BEEN TAKEN, APPELLANT, STILL CONTENDING THAT SUCH
AN ISSUE WAS NOT PROPERLY RAISED AS THE ACTION UNDER THE TEXAS STATUTE
WAS IN THE NATURE OF AN APPEAL FROM THE COMMISSION'S ORDER WHICH WAS
INDIVISIBLE, PRESENTED EVIDENCE BASED UPON "A SEGREGATION OF ITS
'INTEGRATED OPERATING SYSTEM' AS BETWEEN INTERSTATE AND INTRASTATE
COMMERCE."  APPELLANT STATES THAT THIS SEGREGATION WAS BASED "UPON THE
ACTUAL USE OF ITS PROPERTIES IN THE TWO CLASSES OF COMMERCE."  THE FAIR
VALUE OF ITS INTRASTATE PROPERTY WAS THUS CLAIMED TO BE $38,350,882.32
AND THE NET AMOUNT AVAILABLE AT THE COMMISSION'S RATE FOR RETURN ON
INTRASTATE DELIVERIES OF GAS AS LESS THAN FOUR PER CENT.  IN THIS
SEGREGATION APPELLANT'S LINE USED IN TRANSPORTING GAS FROM WHEELER
COUNTY, TEXAS, IN THE PANHANDLE FIELD, THROUGH OKLAHOMA AND THENCE INTO
TEXAS, WAS ALLOCATED TO INTERSTATE OPERATIONS. 

IN REBUTTAL, THE STATE OFFERED EVIDENCE BASED UPON A DIFFERENT METHOD
OF SEGREGATING APPELLANT'S PROPERTIES AND OPERATIONS.  THIS METHOD
PROCEEDED UPON THE BASIS OF GEOGRAPHICAL LOCATION, THAT IS, THERE WERE
ALLOCATED TO OKLAHOMA AND TEXAS RESPECTIVELY THE PROPERTIES PHYSICALLY
LOCATED IN EACH STATE AND THE REVENUES AND EXPENSES WERE DIVIDED ON THE
SAME GEOGRAPHICAL BASIS.  IN THAT WAY THE PROPERTIES ALLOCATED TO TEXAS
WERE VALUED AT $40,256,862.39, AND THE NET REVENUE WHICH WOULD BE
AVAILABLE AT THE COMMISSION'S RATE WAS ESTIMATED TO BE, FOR THE LAST
TWO YEARS OF THE ACCOUNTING PERIOD, NEARLY SEVEN PER CENT.  APPELLANT
COMPLAINS OF THIS APPRAISAL UPON THE GROUND THAT IT EXCLUDED THE
PRODUCTION PROPERTIES LOCATED IN TEXAS WHICH APPELLANT CLAIMED HAD AN
ACTUAL COST OF $5,191,539.42 AS OF MARCH 31, 1934, AND THAT THE STATE
SUBSTITUTED THEREFOR AN ARBITRARY AND INADEQUATE ANNUAL ALLOWANCE ON
THE BASIS OF THE FIELD PRICE FOR THE VOLUME OF GAS PRODUCED. 

WHEN THE EVIDENCE WAS CLOSED, EACH PARTY MOVED THAT A VERDICT BE
DIRECTED IN ITS FAVOR AND BOTH MOTIONS WERE DENIED.  THE COURT GAVE TO
THE JURY A SERIES OF INSTRUCTIONS EMBRACING DEFINITIONS OF THE TERMS OF
"FAIR RETURN," "FAIR VALUE," "USED AND USEFUL" - AS APPLYING TO THE
PROPERTY ACTUALLY USED BY APPELLANT IN THE PRODUCTION, TRANSPORTATION,
SALE AND DELIVERY OF NATURAL GAS TO ITS CUSTOMERS AND ALSO TO THE
PROPERTY ACQUIRED IN GOOD FAITH AND HELD BY APPELLANT FOR USE IN THE
REASONABLY NEAR FUTURE IN ORDER TO ENABLE IT TO FURNISH ADEQUATE AND
UNINTERRUPTED SERVICE - "OPERATING EXPENSES," "ANNUAL DEPRECIATION,"
"REPRODUCTION COST NEW," AND "GOING VALUE."  THE JURY WERE INSTRUCTED
THAT THE BURDEN OF PROOF WAS UPON THE DEFENDANT (APPELLANT) "TO SHOW BY
CLEAR AND SATISFACTORY EVIDENCE" THAT THE RATE FIXED BY THE
COMMISSION'S ORDER WAS "UNREASONABLE AND UNJUST AS TO IT," AND THE
COURT EXPLAINED THAT BY THAT PHRASE WAS MEANT THAT THE RATE PRESCRIBED
IN THE COMMISSION'S ORDER "WAS SO LOW AS TO HAVE NOT PROVIDED FOR A
FAIR RETURN UPON THE FAIR VALUE OF DEFENDANT'S PROPERTY USED AND USEFUL
IN SUPPLYING THE SERVICE FURNISHED BY SAID DEFENDANT."  WITH THESE
INSTRUCTIONS THE COURT SUBMITTED TO THE JURY A SINGLE SPECIAL ISSUE AS
FOLLOWS: 

"DO YOU FIND FROM THE EVIDENCE IN THIS CASE THAT, AS APPLIED TO
POINTS IN TEXAS, THE ORDER OF THE RAILROAD COMMISSION OF TEXAS, BEARING
DATE OF SEPTEMBER 13, 1933, PROVIDING FOR A RATE OF NOT EXCEEDING 32
CENTS PER THOUSAND CUBIC FEET OF GAS SOLD TO THE DISTRIBUTING COMPANIES
AT THE GATES OF POINTS SERVED, IS UNREASONABLE AND UNJUST AS TO THE
DEFENDANT, LONE STAR GAS COMPANY?  ANSWER THIS QUESTION 'YES' OR
'NO'". 

THE JURY ANSWERED THE QUESTION "YES."  JUDGMENT WAS ENTERED
ACCORDINGLY ENJOINING THE ENFORCEMENT OF THE COMMISSION'S RATE. 

IN VIEW OF THE DEFINITION OF "FAIR RETURN" AND "UNREASONABLE AND
UNJUST" IN THE COURT'S INSTRUCTIONS, WE ARE OF THE OPINION THAT THE
ISSUE FOR THE JURY TO DETERMINE WAS IN SUBSTANCE WHETHER THE RATE WAS
CONFISCATORY.  WE SO REGARDED A LIKE SUBMISSION IN THE CASE OF UNITED
GAS PUBLIC SERVICE CO. V. TEXAS, 303 U.S. 123.  THERE THE JURY'S
VERDICT SUSTAINED THE RATE BUT THAT FACT DOES NOT ALTER THE NATURE OF
THE ISSUE SUBMITTED. 

UNDER THE STATE PRACTICE THE ISSUES OF FACT WERE DETERMINED IN THE
TRIAL COURT AND ON THE APPEAL THE COURT OF CIVIL APPEALS HAD NO
AUTHORITY TO MAKE FINDINGS OF FACT.  "WHERE THE EVIDENCE IS WITHOUT
CONFLICT, IT MAY RENDER JUDGMENT.  BUT WHERE THERE IS ANY CONFLICT IN
THE EVIDENCE ON A MATERIAL ISSUE, IT HAS NO AUTHORITY TO SUBSTITUTE ITS
FINDINGS OF FACT FOR THOSE OF THE TRIAL COURT."  POST V. STATE, 106
TEX. 500, 501; 171 S.W. 707; UNITED GAS PUBLIC SERVICE CO. V. TEXAS,
SUPRA. 

THE COURT OF CIVIL APPEALS HELD THAT THE BURDEN WAS HEAVILY UPON THE
COMPANY (APPELLANT HERE) TO SHOW BY CLEAR AND SATISFACTORY EVIDENCE
THAT THE 32-CENT RATE WOULD NOT AFFORD A REASONABLE RATE OF RETURN ON
THE PROPERTY USED IN THE TEXAS PUBLIC SERVICE, THAT THE COMPANY DID NOT
MEET "THIS BURDEN AND QUANTUM OF PROOF," AND THAT THE TRIAL COURT ERRED
IN OVERRULING THE STATE'S MOTIONS FOR AN INSTRUCTED VERDICT.  THE COURT
VIEWED THE APPEAL AS PRESENTING TWO MAIN DIVISIONS, (1) CERTAIN
CONSTITUTIONAL OBJECTIONS TO THE RATE ORDER, AND (2) THE LEGAL
SUFFICIENCY OF THE EVIDENCE TO SHOW THAT THE ORDER WAS CONFISCATORY OR
UNREASONABLE AND UNJUST.  UNDER THE FIRST DIVISION, THE COURT
CONSIDERED THAT THERE WERE THREE CONSTITUTIONAL OBJECTIONS, (A)
INTERFERENCE WITH INTERSTATE COMMERCE, (B) INTERFERENCE WITH THE RIGHT
TO CONTRACT, AND (C) CONFISCATION OF PROPERTY.  THE COURT SUSTAINED THE
JURISDICTION OF THE COMMISSION TO DEAL WITH THE OPERATIONS OF APPELLANT
AND ITS CORPORATE AFFILIATES IN TEXAS AS "A SINGLE AND INTEGRATED
BUSINESS ENTERPRISE."  ON THE FIRST TWO ISSUES ABOVE-MENTIONED THE
COURT RULED IN FAVOR OF THE STATE, AND ON THE CONFISCATION ISSUE THE
COURT CONSIDERED THAT THE QUESTION WHETHER THE PRESCRIBED RATE WOULD
YIELD A FAIR RETURN WAS ONE OF FACT AND PASSED TO THE CONSIDERATION OF
THE LEGAL SUFFICIENCY OF THE EVIDENCE. 

HOLDING THAT THE RATE FIXED BY THE COMMISSION WAS PRESUMED TO BE
VALID, AND REFERRING TO THE AUTHORITIES AS TO THE SCOPE OF JUDICIAL
REVIEW, THE COURT SET FORTH THE FIVE PRIMARY FACTORS ESSENTIAL TO THE
CORRECT DETERMINATION OF THE ISSUE, VIZ., THE PRESENT FAIR VALUE OF THE
PROPERTY OF THE COMPANY USED IN THE PUBLIC SERVICE, THE REASONABLE
ANNUAL ALLOWANCE FOR DEPRECIATION, THE REASONABLY NECESSARY OPERATING
EXPENSES, THE REASONABLE OPERATING REVENUES, AND THE REASONABLE RATE OF
RETURN.    BUT IN DEALING WITH THE EVIDENCE UPON THESE QUESTIONS, THE
COURT APPLIED A DIFFERENT CRITERION FROM THAT ADOPTED BY THE
COMMISSION.  THE COURT HELD THAT IT WAS NECESSARY TO SEGREGATE THE
PROPERTY USED IN TEXAS, AS WELL AS THAT USED CONJOINTLY IN TEXAS AND
OKLAHOMA.  THE COURT SPOKE DEFINITELY UPON THIS POINT, SAYING - 
"SINCE APPELLEE (APPELLANT HERE) WAS ENGAGED IN THE INTEGRATED BUSINESS
OF PRODUCING, PURCHASING, TRANSPORTING AND SELLING NATURAL GAS TO THE
DISTRIBUTING COMPANIES AT THE CITY GATES OF SOME 300 CITIES AND TOWNS
IN TEXAS AND OKLAHOMA, IT BECAME NECESSARY TO ALLOCATE OR SEGREGATE THE
PROPERTY USED IN TEXAS AS WELL AS THAT USED CONJOINTLY IN BOTH STATES,
IN ORDER TO DETERMINE THE FAIR VALUE OF THE PROPERTY USED IN THE TEXAS
PUBLIC SERVICE, THE ANNUAL DEPRECIATION THEREOF AND THE TEXAS OPERATING
EXPENSES AND REVENUE." 

THE COURT THEN SET FORTH THE DIFFERENT METHODS OF SEGREGATION WHICH
THE PARTIES HAD ADOPTED.  THE COURT SAID THAT THE STATE'S METHOD
ALLOCATED "TO TEXAS OPERATIONS, OR TO INTRASTATE COMMERCE THE VALUE OF
ALL PROPERTY LOCATED WITHIN THE PHYSICAL BOUNDARY OF TEXAS."  THE
"SHORT SECTION" OF PIPE LINE "FROM TEXAS PANHANDLE FIELD ACROSS THE
CORNER OF OKLAHOMA AND BACK INTO TEXAS WAS ALSO ALLOCATED TO TEXAS
OPERATIONS."  "GAS SALES ADJUSTMENT" WAS MADE BY WHICH "TEXAS OR
INTRASTATE OPERATIONS" WERE CHARGED WITH THE NET AMOUNT OF OKLAHOMA
PRODUCED GAS FOR THE SIX-YEAR PERIOD 1929 TO 1934.  THE COURT OBSERVED
THAT "NO CHARGE AGAINST OKLAHOMA OR INTERSTATE OPERATIONS WAS MADE FOR
THE USE OF THE TRANSMISSION LINES AND FOR EQUIPMENT WITHIN TEXAS; THE
EFFECT OF WHICH WAS TO GIVE FREE TRANSPORTATION IN TEXAS OF ALL
OKLAHOMA PRODUCED GAS."  TEXAS AND OKLAHOMA EXPENSES AND REVENUES "WERE
ALLOCATED IN GENERAL ACCORD WITH THE SEGREGATION OF THE PHYSICAL
PROPERTIES."  THE COURT STATED THAT UNDER THAT METHOD THE FAIR VALUE
"OF THE PROPERTY UNDEPRECIATED USED IN TEXAS PUBLIC SERVICE WAS
$40,256,862.39" ACCORDING TO THE CALCULATIONS OF THE STATE'S EXPERTS;
AND THAT AFTER DEDUCTING OPERATING EXPENSES AND ANNUAL DEPRECIATION
"THERE REMAINED FOR THE LAST TWO YEARS OF THE ACCOUNTING PERIOD, BEING
THE TWO LOWEST REVENUE YEARS," TEXAS NET REVENUE "WHICH WOULD YIELD A
RETURN OF 6.74% AND 6.76% RESPECTIVELY." 

THE COURT THEN REFERRED TO THE METHOD OF SEGREGATION USED BY THE
COMPANY BY WHICH ALL THE GAS PRODUCED OR PURCHASED IN THE TEXAS
PANHANDLE FIELD AND TRANSPORTED INTO TEXAS, AND ALL OKLAHOMA PRODUCED
GAS, WERE ALLOCATED TO INTERSTATE COMMERCE; THAT THE ALLOCATION WAS
MADE BY A DETERMINATION OF THE SPECIFIC GRAVITY OF THE OKLAHOMA AND
TEXAS PANHANDLE GAS ON THE ONE HAND AND THE WEST TEXAS GAS WITH WHICH
IT WAS COMMINGLED IN PIPE LINES ON THE OTHER; THAT THE COMPANY HAD
ALLOCATED OPERATING EXPENSES AND REVENUE BETWEEN THE TWO STATES UPON
SUBSTANTIALLY THE SAME BASIS; AND THAT IN THIS MANNER THE FAIR VALUE OF
THE PROPERTY USED IN THE TEXAS PUBLIC SERVICE ON THE BASIS OF
REPRODUCTION COST NEW, LESS DEPRECIATION, WAS SAID TO BE
$38,350,882.32.  THE COURT HELD THAT GAS FROM THE TEXAS PANHANDLE FIELD
DID NOT MOVE IN INTERSTATE COMMERCE AND HENCE THAT THE TESTIMONY OF THE
COMPANY'S EXPERTS WAS BASED UPON AN ERRONEOUS ASSUMPTION AND "PROVED
NOTHING MATERIAL TO THIS CASE"; THAT THE COMPANY HAD OFFERED NO OTHER
PROOF UPON A CORRECT SEGREGATION OR ALLOCATION OF THE PROPERTY, AND
THAT THE TRIAL COURT HAD ERRED IN REFUSING THE STATE'S MOTION FOR AN
INSTRUCTED VERDICT AND FOR A JUDGMENT DECLARING THE RATE ORDER "TO BE
VALID IN EVERY RESPECT." 

THE COURT'S SPECIFIC RULING UPON THIS POINT IS SHOWN BY THE FOLLOWING
STATEMENT OF ITS CONCLUSION: 

"THE BURDEN WAS UPON APPELLEE TO SHOW BY CLEAR AND SATISFACTORY
EVIDENCE A PROPER SEGREGATION OF INTERSTATE AND INTRASTATE PROPERTIES
AND BUSINESS, AND TO SHOW THE VALUE OF THE PROPERTY EMPLOYED IN
INTRASTATE BUSINESS OR COMMERCE AND THE COMPENSATION IT WOULD RECEIVE
UNDER THE RATE COMPLAINED OF UPON SUCH VALUATION.  HAVING FAILED TO
MAKE A PROPER SEGREGATION OF INTERSTATE AND INTRASTATE PROPERTIES,
APPELLEE DID NOT ADDUCE THE QUANTUM AND CHARACTER OF PROOF NECESSARY TO
ESTABLISH THE INVALIDITY OF THE RATE AS BEING CONFISCATORY, OR
UNREASONABLE AND UNJUST." 

THE COURT ADVERTED TO THE EFFECT OF THE DIFFERENCE IN THEORY IN THE
TWO METHODS OF SEGREGATION "WITH RESPECT TO THE FAIR VALUE OF THE
PROPERTY USED IN TEXAS PUBLIC SERVICE, THE ANNUAL DEPRECIATION THEREOF,
AND PARTICULARLY AS TO THE OPERATING EXPENSES AND REVENUES."  THE COURT
CHARACTERIZED THE ANNUAL DEPRECIATION ALLOWANCES AS SPECULATIVE AND
PLAINLY EXCESSIVE.  THE COURT SAID THAT WITH RESPECT TO OPERATING
EXPENSES, EXCEPT AS TO A FEW CONTROVERTED ITEMS, AND WITH RESPECT TO
REVENUES, THERE WAS NO SUBSTANTIAL DIFFERENCE IN THE TESTIMONY "AS TO
TOTALS OF BOTH TEXAS AND OKLAHOMA FOR THE YEARS OF THE ACCOUNTING
PERIOD" BUT THAT THE SAME CONTROVERSY AROSE "AS TO A PROPER SEGREGATION
OF SUCH EXPENSES AND REVENUES TO EACH STATE"; AND SINCE, AS ALREADY
POINTED OUT, THE COMPANY HAD "FAILED TO MAKE PROPER SEGREGATION OF THE
EXPENSES AND REVENUES, IT FAILED TO PROVE ITS CASE." 

THE COURT THEN CRITICISED CERTAIN ITEMS OF OPERATING EXPENSES AS
CONTRARY TO THE ACTUAL EXPERIENCES OF THE COMPANY OR SO LARGE AS TO BE
EXCESSIVE UPON THEIR FACE, REFERRING IN PARTICULAR TO THE ITEMS OF
"FEDERAL TAXES," MANAGEMENT FEES CHARGED BY THE HOLDING CORPORATION,
NEW BUSINESS EXPENSES, CANCELED AND SURRENDERED LEASES, REGULATORY
COMMISSION AND GENERAL EXPENSES, AND GOING VALUE.  THE COURT ALSO TOOK
THE VIEW THAT NO REASON EXISTED WHY A SIX PER CENT. RATE OF RETURN
SHOULD BE DECLARED CONFISCATORY. 

THAT THE JUDGMENT OF REVERSAL WAS RESTED UPON THE PROPOSITION THAT
THERE WAS A FAILURE OF PROOF ON THE ISSUE OF CONFISCATION BY REASON OF
THE FACT THAT THE COMPANY HAD FAILED TO MAKE A PROPER SEGREGATION OF
ITS INTERSTATE AND INTRASTATE PROPERTIES AND OPERATIONS IS FULLY
CONFIRMED BY THE FURTHER OPINION OF THE COURT IN DENYING THE COMPANY'S
MOTION FOR A REHEARING, WHEN THE COURT SAID: 

"WE HELD THAT AS A MATTER OF LAW APPELLEE FAILED TO ESTABLISH BY
CLEAR AND SATISFACTORY EVIDENCE THE ULTIMATE FACT ISSUE, TO WIT:
WHETHER THE RATE FIXED BY THE COMMISSION WAS SO LOW AS NOT TO AFFORD A
REASONABLE RETURN ON THE FAIR VALUE OF THE PROPERTY USED IN THE TEXAS
PUBLIC SERVICE.  APPELLEE WAS AFFORDED A SEVEN MONTHS HEARING BEFORE
THE COMMISSION AND A THREE MONTHS TRIAL ON APPEAL TO THE COURT.  IT
MADE NO SEGREGATION AS BETWEEN ITS TEXAS AND OKLAHOMA PROPERTIES AND
OPERATIONS; AND DID NOT PROVE THE FAIR VALUE OF THE PROPERTY USED IN
THE TEXAS PUBLIC SERVICE.  THE QUESTION OF THE VALUE OF SUCH PROPERTY
DETERMINES THE REASONABLENESS OF THE RATE AND PROBABLY, IN THE ULTIMATE
ANALYSIS, ADEQUACY OF SERVICE AND PRINCIPLES OF FINANCING." 

THE COURT ADDED THAT THE VALUATION OF SUCH PUBLIC SERVICE PROPERTY
WAS IN THE MAIN A MATTER OF ESTIMATE OR OPINION; THAT A SCIENTIFIC
STANDARD OF ABSOLUTE VALUE WAS UNATTAINABLE; AND THAT BECAUSE OF THIS
UNCERTAINTY, EXCEPT WHERE THE EVIDENCE CLEARLY SHOWS GROSS OVER OR
UNDER VALUATION, OR "MISTAKE, INEQUALITY OR FRAUD" IN THE APPRAISAL,
THE FINDING OF VALUE BY AN ADMINISTRATIVE COMMISSION IS GENERALLY GIVEN
FINALITY AND THAT THIS ESPECIALLY WAS THE RULE IN THE ABSENCE OF AN
ACTUAL TEST UNDER THE NEW RATE. 

FIRST.  WE AGREE WITH THE STATE COURT THAT THE COMMISSION'S ORDER DID
NOT VIOLATE THE CONSTITUTIONAL RIGHTS OF APPELLANT UNDER THE COMMERCE
CLAUSE. 

THE COMMISSION DID NOT ATTEMPT TO REGULATE THE INTERSTATE
TRANSPORTATION OF GAS.  COMPARE HANLEY V. KANSAS CITY SOUTHERN RY. CO.,
187 U.S. 617; WESTERN UNION TELEGRAPH CO. V. SPEIGHT, 254 U.S. 17;
MISSOURI PACIFIC R. CO. V. STROUD, 267 U.S. 404.  NOR, IN VIEW OF THE
CIRCUMSTANCES IN THE INSTANT CASE, CAN IT BE SAID THAT THE COMMISSION
WAS UNDERTAKING TO REGULATE SALES AND DELIVERIES OF GAS IN INTERSTATE
COMMERCE.  COMPARE MISSOURI V. KANSAS NATURAL GAS CO., 265 U.S. 298;
PEOPLES NATURAL GAS CO. V. PUBLIC SERVICE COMMISSION, 270 U.S. 550;
EAST OHIO GAS CO. V. TAX COMMISSION, 283 U.S. 465; STATE TAX COMMISSION
V. INTERSTATE NATURAL GAS CO., 284 U.S. 41; STATE CORPORATION
COMMISSION V. WICHITA GAS CO., 290 U.S. 561.  THE DISTRIBUTING
COMPANIES IN TEXAS, WITH THE EXCEPTION OF THOSE AT WAXAHACHIE AND
GAINESVILLE (THE AMOUNT OF DELIVERIES THERE BEING NEGLIGIBLE IN
COMPARISON WITH APPELLANT'S TOTAL GAS BUSINESS), ARE APPELLANT'S
AFFILIATES.  THE LONE STAR GAS CORPORATION, ORGANIZED IN DELAWARE,
HOLDS MORE THAN 99 PER CENT. OF THE CAPITAL STOCK OF APPELLANT AND OWNS
OR CONTROLS A LIKE PROPORTION OF THE CAPITAL STOCK OF THE DISTRIBUTING
COMPANIES.  THUS, THE LATTER COMPANIES AND APPELLANT ARE BUT ARMS OF
THE SAME ORGANIZATION DOING AN INTRASTATE BUSINESS IN TEXAS AND THE
COMMISSION WAS ENTITLED TO ASCERTAIN AND DETERMINE WHAT WAS A
REASONABLE CHARGE FOR THE GAS SUPPLIED THROUGH THIS ORGANIZATION TO
CONSUMERS WITHIN THE STATE.  WESTERN DISTRIBUTING CO. V. PUBLIC SERVICE
COMMISSION, 285 U.S. 119, 124; DAYTON POWER & LIGHT CO. V. PUBLIC
UTILITIES COMMISSION, 292 U.S. 290, 295; AMERICAN TELEPHONE & TELEGRAPH
CO. V. UNITED STATES, 299 U.S. 232, 239.  IT APPEARS THAT THERE WERE
PENDING BEFORE THE COMMISSION PROCEEDINGS INVOLVING THE REASONABLENESS
OF THE RATES CHARGED BY THE DISTRIBUTING COMPANIES TO CONSUMERS IN MANY
COMMUNITIES IN TEXAS, AND IN RELATION TO THOSE PROCEEDINGS THE
COMMISSION FOUND IT NECESSARY TO DETERMINE WHAT WOULD BE A REASONABLE
CHARGE FOR THE GAS DELIVERED BY APPELLANT TO THE DISTRIBUTING COMPANIES
AT THE "CITY GATES."  IT WAS OBVIOUSLY TO THE CONVENIENCE OF BOTH THE
COMMISSION AND APPELLANT THAT THIS ESSENTIAL FACTOR SHOULD BE
ASCERTAINED IN A SINGLE PROCEEDING AND THE COMMISSION'S INVESTIGATION,
WHICH LED TO THE ORDER NOW IN QUESTION, WAS UNDERTAKEN TO THAT END.  WE
THINK THAT APPELLANT'S SALES AND DELIVERIES OF GAS IN TEXAS TO THE
DISTRIBUTING COMPANIES MUST BE REGARDED AS AN ESSENTIAL PART OF THE
INTRASTATE BUSINESS IN THE CONDUCT OF WHICH THE APPELLANT AND THE
DISTRIBUTING COMPANIES WERE VIRTUAL DEPARTMENTS OF THE SAME
ENTERPRISE. 

APPELLANT'S PIPE LINE FROM THE TEXAS PANHANDLE FIELD IN WHEELER
COUNTY LED FROM PRODUCTION PROPERTIES IN TEXAS TO DISTRIBUTING POINTS
IN THE SAME STATE.  THE FACT THAT THE LINE CUT ACROSS A CORNER OF
OKLAHOMA DID NOT MAKE IT ANY THE LESS A PART OF THE SYSTEM SERVING
TEXAS GAS TO COMMUNITIES IN TEXAS.  IN ASCERTAINING WHAT WOULD BE A
REASONABLE RATE OF CHARGE FOR THIS TEXAS GAS SUPPLIED TO TEXAS
CONSUMERS, IT WAS NOT ONLY FAIR BUT MANIFESTLY NECESSARY TO TAKE INTO
ACCOUNT THE VALUE OF THE PRODUCTION PROPERTIES IN TEXAS FROM WHICH THE
GAS WAS TAKEN AND ALSO THE VALUE OF THE TRANSMISSION LINE BY WHICH THE
GAS WAS BROUGHT TO THE CITY GATES OF THE TEXAS COMMUNITIES.  IT IS
FUTILE TO CONTEND THAT IN MAKING ITS CALCULATIONS ON THAT BASIS, THE
COMMISSION WAS REGULATING INTERSTATE TRANSPORTATION OR IMPOSING ANY
BURDEN UPON INTERSTATE COMMERCE.  THE HANLEY, SPEIGHT AND STROUD CASES,
SUPRA, UPON WHICH APPELLANT RELIES, ARE NOT IN POINT.  IN SEEKING TO
ASSURE A JUST DETERMINATION OF A REASONABLE CHARGE FOR THE SALES AND
DELIVERIES IN THE INTRASTATE BUSINESS IN TEXAS, THE STATE WAS
PROTECTING ITS LOCAL INTERESTS AND ITS ACTION WAS NOT IN CONFLICT WITH
ANY FEDERAL REGULATION.  MINNESOTA RATE CASES, 230 U.S. 352, 402. 

WE THINK THAT THE VALUE OF THE PIPE LINE FROM THE TEXAS PANHANDLE
FIELD WAS PROPERLY INCLUDED BY THE COMMISSION IN THE RATE BASE. 

WITH RESPECT TO THE GAS PRODUCED OR PURCHASED BY APPELLANT IN
OKLAHOMA AND TRANSPORTED BY ITS PIPE LINES TO TEXAS, THE STATE COURT
OBSERVED THAT THE OKLAHOMA GAS WAS RUN THROUGH EXTRACTION PLANTS IN
TEXAS, LEAVING THE RESIDUE GAS CHANGED IN ITS COMPOSITION AND WITH ITS
HEATING VALUE LOWERED; THAT LARGE AMOUNTS OF THE OKLAHOMA GAS WERE RUN
THROUGH AND STORED IN WELLS IN TEXAS; THAT, PASSING INTO APPELLANT'S
PIPE LINE SYSTEM, THAT GAS WAS COMMINGLED WITH TEXAS GAS AND DIVIDED
AND REDIVIDED UNTIL IT WAS IMPOSSIBLE TO TRACE OR IDENTIFY IT BY VOLUME
AT ANY CITY GATE OF DELIVERY; THAT AT VARIOUS POINTS BEFORE DELIVERY
ITS PRESSURE WAS REDUCED AND THE GAS ALLOWED TO EXPAND; AND THAT THE
AMOUNT OF OKLAHOMA GAS AS A WHOLE WAS NEGLIGIBLE IN COMPARISON WITH THE
AMOUNT OF THE TEXAS GAS WITH WHICH IT WAS MIXED.  APPELLANT REFERS TO
THE TESTIMONY OF ITS WITNESS THAT THE COMPOSITION OF THE GAS, AFTER
CERTAIN HEAVY HYDRO-CARBONS WERE REMOVED AT THE GASOLINE PLANTS,
REMAINED PRACTICALLY THE SAME, THAT ITS FORWARD MOVEMENT WAS NOT
STOPPED, AND THAT NOT ALL OF THE GAS COMING FROM OKLAHOMA WAS STORED IN
TEXAS.  APPELLANT ALSO CONTENDS THAT THE STATE COURT ERRED IN SAYING
THAT ONLY ABOUT FOUR PER CENT. OF ITS TOTAL GAS CAME FROM OKLAHOMA,
INSISTING THAT THE CORRECT FIGURE WAS ABOUT ELEVEN PER CENT.  THE
DISCREPANCY IS APPARENTLY EXPLAINED BY THE FACT THAT THE STATE COURT'S
FIGURE WAS TAKEN FROM THE RESULTS OF THE YEAR 1933 WHILE THAT OF THE
APPELLANT IS FOR THE FIVE YEARS OF ITS ACCOUNTING PERIOD.  IT WOULD
SEEM, HOWEVER, THAT THE AMOUNT OF THE GAS TRANSPORTED FROM OKLAHOMA
INTO TEXAS WAS AT A DIMINISHING RATE.  ASIDE FROM THAT, WE THINK THAT
THE PROVED MANNER IN WHICH THE GAS FROM OKLAHOMA WAS TREATED AND
HANDLED IN TEXAS MADE IT AN INTEGRAL PART OF THE GAS SUPPLIED TO THE
TEXAS COMMUNITIES IN APPELLANT'S INTRASTATE BUSINESS AND THAT THE
COMMISSION WAS ENTITLED SO TO CONSIDER IT IN FIXING ITS RATE. 

IT IS IN THIS LIGHT THAT THE INCLUSION BY THE COMMISSION IN ITS
CALCULATIONS OF APPELLANT'S PRODUCING PROPERTIES IN OKLAHOMA AND ITS
TRANSMISSION LINES TO TEXAS MUST BE CONSIDERED.  THE PURPOSE OF THESE
CALCULATIONS WAS TO GIVE PROPER CREDIT TO APPELLANT FOR ITS INVESTMENT
AND OPERATING EXPENSES IN DETERMINING A RATE FOR THE GAS SOLD AND
DELIVERED IN TEXAS.  THE COMMISSION DID NOT ATTEMPT TO FIX A RATE FOR
GAS SUPPLIED TO OKLAHOMA COMMUNITIES AND DID NOT IMPINGE UPON THE
JURISDICTION OF OKLAHOMA.  THERE IS NO GROUND FOR CONCLUDING THAT THE
COMMISSION'S METHOD OF CALCULATION EITHER CREATED ANY BURDEN UPON
INTERSTATE COMMERCE OR OPERATED TO APPELLANT'S INJURY IN RELATION TO
ITS INTRASTATE BUSINESS IN TEXAS.  NOT ONLY IS THE CONTRARY A FAIR
INFERENCE FROM THE FACT THAT APPELLANT RAISED NO OBJECTION TO THIS
METHOD BEFORE THE COMMISSION, BUT THE STATE POINTS TO THE EVIDENCE
WHICH APPEARS TO SHOW THAT THE OKLAHOMA OPERATIONS WERE MORE EXPENSIVE
THAN THOSE IN TEXAS AND THAT THE COMMISSION'S CALCULATIONS ACTUALLY
PRODUCED A RESULT MORE FAVORABLE TO APPELLANT THAN ONE WHICH WOULD HAVE
FOLLOWED ANY SEGREGATION.  APPELLANT DOES NOT SUCCESSFULLY MEET THIS
CONTENTION. 

SECOND.  CONCLUDING THAT APPELLANT HAD NO TENABLE OBJECTION TO THE
METHOD ADOPTED BY THE COMMISSION IN TREATING APPELLANT'S PROPERTY AS AN
INTEGRATED OPERATING SYSTEM, AND MAKING ITS FINDINGS AS TO VALUE,
EXPENSES, AND REVENUES ACCORDINGLY, FOR THE PURPOSE OF DETERMINING THE
FAIR RATE FOR THE GAS SOLD AND DELIVERED IN TEXAS, WE COME TO THE ISSUE
OF CONFISCATION. 

THE COMMISSION'S ORDER WAS PRESUMPTIVELY VALID, AS THE STATE COURT
HELD, BUT IT WAS OPEN TO ATTACK IN THIS ACTION UNDER THE STATE
STATUTE.  APPELLANT WAS ENTITLED TO PRESENT EVIDENCE TO REBUT THE
COMMISSION'S FINDINGS OF VALUE, OPERATING EXPENSES, REVENUES AND
RETURN, UPON WHICH THE ORDER RESTED.  APPELLANT PRESENTED MUCH
TESTIMONY AND ELABORATE STATISTICAL DATA FOR THAT PURPOSE, TREATING ITS
PROPERTY AND BUSINESS AS THE COMMISSION HAD TREATED THEM.  APPELLANT
CLAIMED THAT THIS EVIDENCE SHOWED A FAR HIGHER VALUE FOR ITS PROPERTIES
THAN THE COMMISSION HAD ALLOWED AND THAT THE RATE IMPOSED WAS
CONFISCATORY.  THE TRIAL COURT SUBMITTED THAT EVIDENCE TO THE JURY,
UNDER A PROPER INSTRUCTION AS TO THE BURDEN OF PROOF RESTING UPON
APPELLANT, AND THE JURY FOUND IN APPELLANT'S FAVOR. 

THE COURT OF CIVIL APPEALS REVERSED THE JUDGMENT UPON A DISTINCT
GROUND.  THAT WAS THAT APPELLANT HAD NOT SUSTAINED ITS BURDEN OF PROOF
BECAUSE IT HAD FAILED TO MAKE "A PROPER SEGREGATION OF INTERSTATE AND
INTRASTATE PROPERTIES AND BUSINESS."  THUS, THE NECESSITY FOR THAT
SEGREGATION WAS MADE THE CRITERION.  THAT IS CLEARLY SHOWN BOTH FROM
THE COURT'S MAIN OPINION AND ITS OPINION UPON REHEARING FROM WHICH WE
HAVE QUOTED.  "HAVING FAILED TO MAKE A PROPER SEGREGATION OF INTERSTATE
AND INTRASTATE PROPERTIES," SAID THE COURT, "APPELLEE (APPELLANT HERE)
DID NOT ADDUCE THE QUANTUM AND CHARACTER OF PROOF NECESSARY TO
ESTABLISH THE INVALIDITY OF THE RATE AS BEING CONFISCATORY, OR
UNREASONABLE AND UNJUST." 

WE THINK THAT THIS RULING AS TO THE NECESSITY OF SEGREGATION, AND
THAT THE SUFFICIENCY OF APPELLANT'S EVIDENCE SHOULD BE DETERMINED BY
THAT CRITERION, WAS ERRONEOUS.  THIS WAS NOT A CASE WHERE THE
SEGREGATION OF PROPERTIES AND BUSINESS WAS ESSENTIAL IN ORDER TO
CONFINE THE EXERCISE OF STATE POWER TO ITS OWN PROPER PROVINCE. 
COMPARE SMITH V. ILLINOIS BELL TELEPHONE CO., 282 U.S. 133, 148, 149. 
HERE, AS WE HAVE SEEN, THE COMMISSION IN ITS METHOD OF DEALING WITH THE
PROPERTY AND BUSINESS OF APPELLANT AS AN INTEGRATED OPERATING SYSTEM
DID NOT TRANSCEND THE LIMITS OF THE STATE'S JURISDICTION OR APPLY AN
IMPROPER CRITERION IN ITS DETERMINATIONS.  BUT IF IN THE CIRCUMSTANCES
SHOWN THE COMMISSION WAS ENTITLED TO MAKE ITS FINDINGS WITH RESPECT TO
APPELLANT'S PROPERTY AND BUSINESS UPON THE BASIS IT ADOPTED IN ORDER TO
FIX A FAIR RATE FOR THE SALES AND DELIVERIES IN TEXAS, APPELLANT WAS
ENTITLED TO ASSAIL THOSE FINDINGS UPON THE SAME BASIS.  IF THE FINDINGS
OF THE COMMISSION AS TO VALUE AND OTHER BASIC ELEMENTS WERE TO BE TAKEN
AS PRESUMPTIVELY CORRECT AND APPELLANT COULD NOT SUCCEED SAVE BY
OVERCOMING THOSE DETERMINATIONS BY CLEAR AND CONVINCING PROOF,
APPELLANT COULD NOT BE DENIED THE RIGHT TO INTRODUCE EVIDENCE AS TO ITS
PROPERTY AND BUSINESS AS AN INTEGRATED SYSTEM AND TO HAVE THE
SUFFICIENCY OF ITS EVIDENCE ASCERTAINED BY THE CRITERION WHICH THE
COMMISSION HAD PROPERLY USED IN THE SAME MANNER IN REACHING ITS
CONCLUSION AS TO THE TEXAS RATE.  NEITHER THE FACT THAT APPELLANT,
BECAUSE OF THE INSISTENCE OF THE STATE THAT THE PROPERTY AND BUSINESS
SHOULD BE SEGREGATED, FINALLY INTRODUCED EVIDENCE FOR THAT PURPOSE, NOR
THE INADEQUACY OF ITS METHOD OF SEGREGATION, COULD DETRACT FROM THE
FORCE OF THE PROOF IT HAD ALREADY SUBMITTED IN DIRECT REBUTTAL OF THE
COMMISSION'S FINDINGS.  THE EFFORT AT SEGREGATION CAME AFTER VOLUMINOUS
TESTIMONY HAD BEEN TAKEN WHICH FULLY PRESENTED APPELLANT'S CASE WITH
RESPECT TO THE VALUE OF ITS PROPERTY AND THE RESULT OF ITS OPERATIONS
AS AN INTEGRATED SYSTEM AND THE BEARING OF THIS EVIDENCE UPON THE
CONTESTED RATE.  THIS PROOF COULD NOT BE IGNORED BECAUSE OF A FUTILE
ATTEMPT, IN RESPONSE TO THE STATE'S PRESSURE, TO FIND AN ALTERNATIVE
GROUND TO SUPPORT THE ATTACK UPON THE COMMISSION'S ORDER.  THE FIRST
AND PRIMARY GROUND REMAINED AND THE DETERMINATION OF THE COURT OF FIRST
INSTANCE AS THE TRIER OF THE FACTS THAT THE COMMISSION'S RATE WAS
CONFISCATORY COULD NOT PROPERLY BE SET ASIDE BY THE APPLICATION OF AN
UNTENABLE STANDARD OF PROOF AND IN DISREGARD OF THE EVIDENCE WHICH HAD
BEEN APPROPRIATELY ADDRESSED TO THE COMMISSION'S FINDINGS AND HAD BEEN
PROPERLY SUBMITTED TO THE JURY. 

THE JUDGMENT OF THE COURT OF CIVIL APPEALS IS REVERSED AND THE CAUSE
IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :








GARMENT WORKERS V. DONNELLY CO., 304 U.S. 243 


NO. 801.  ARGUED APRIL 27, 1938.  - DECIDED MAY 16, 1938.  - DECREE IN
21 F.SUPP.  807 VACATED. 


1.  A SUIT BY AN EMPLOYER AND A UNION OF HIS EMPLOYEES TO ENJOIN
ANOTHER LABOR ORGANIZATION FROM PICKETING, BOYCOTTING AND OTHER
INTERFERENCES WITH HIS BUSINESS, UPON THE GROUND THAT THE ACTS
COMPLAINED OF ARE IN FURTHERANCE OF A CONSPIRACY IN VIOLATION OF THE
SHERMAN ANTI-TRUST AND CLAYTON ACTS, IS TRIABLE BEFORE A SINGLE
DISTRICT JUDGE, AND A DECREE OF INTERLOCUTORY INJUNCTION GRANTED
THEREIN IS APPEALABLE TO THE CIRCUIT COURT OF APPEALS AND NOT DIRECTLY
TO THIS COURT.  P. 247. 

2.  THE PROVISION OF SEC. 3 OF THE ACT OF AUG. 24, 1937, FOR A
DETERMINATION BY THREE JUDGES AND DIRECT APPEAL TO THIS COURT, DOES NOT
APPLY WHERE AN ACT OF CONGRESS IS MERELY "DRAWN IN QUESTION"; BUT ONLY
WHERE THERE IS AN APPLICATION TO RESTRAIN ENFORCEMENT OF AN ACT OF
CONGRESS.  P. 248. 

IN THE PRESENT CASE, THE CONTENTION OF PLAINTIFFS THAT THE NORRIS
LAGUARDIA ACT (LIMITING JURISDICTION TO ISSUE INJUNCTIONS IN LABOR
DISPUTES) WAS NOT APPLICABLE TO THE CONDUCT OF DEFENDANTS AND WOULD BE
INVALID IF OTHERWISE INTERPRETED, WAS BUT AN ANTICIPATION OF A DEFENSE
AND DID NOT CONSTITUTE AN APPLICATION FOR INJUNCTION IN ANY PROPER
SENSE OF THE TERM AS USED IN SEC. 3. 

3.  THIS COURT IN CASES OF DECREES PURPORTING TO HAVE BEEN ENTERED
UNDER SEC. 3 OF THE ACT OF AUG. 24, 1937, HAS JURISDICTION TO DETERMINE
WHETHER THE COURT BELOW HAS ACTED WITHIN THE AUTHORITY CONFERRED BY THE
STATUTE AND TO MAKE SUCH CORRECTIVE ORDER AS MAY BE APPROPRIATE TO THE
ENFORCEMENT OF THE LIMITATIONS WHICH THE STATUTE IMPOSES.  WHERE APPEAL
HAS ERRONEOUSLY BEEN TAKEN TO THIS COURT AND THE TIME FOR APPEAL TO THE
CIRCUIT COURT OF APPEALS HAS EXPIRED, THE DECREE WILL BE VACATED AND
THE CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS TO BE
TAKEN INDEPENDENTLY OF THAT SECTION.  P. 251. 

INTERNATIONAL LADIES' GARMENT WORKERS' UNION ET AL. V. DONNELLY
GARMENT CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MISSOURI. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, THREE JUDGES SITTING,
DENYING A MOTION TO DISMISS, AND GRANTING AN INTERLOCUTORY INJUNCTION. 
THE SUIT, BROUGHT BY THE DONNELLY GARMENT COMPANY, IN WHICH THE
DONNELLY GARMENT WORKERS' UNION JOINED AS PLAINTIFF, WAS TO ENJOIN THE
INTERNATIONAL UNION FROM PERPETRATING ALLEGED VIOLATIONS OF THE SHERMAN
AND CLAYTON ACTS.  FOR OPINIONS BELOW, SEE 21 F.SUPP.  807, 814, 817;
20 ID. 767. 

PER CURIAM. 

THIS IS A DIRECT APPEAL TO THIS COURT FROM A DECREE OF THE DISTRICT
COURT, THREE JUDGES SITTING, DENYING A MOTION TO DISMISS THE COMPLAINT
AND GRANTING AN INTERLOCUTORY INJUNCTION.  THE QUESTION ARISES WHETHER
SUCH AN APPEAL LIES. 

APPELLANTS RELY UPON THE ACT OF AUGUST 24, 1937, C. 754, 50 STAT.
751.  SECTION 3 OF THAT ACT, THE FULL TEXT OF WHICH IS QUOTED IN THE
MARGIN,  FN1  PROVIDES THAT "NO INTERLOCUTORY OR PERMANENT INJUNCTION
SUSPENDING OR RESTRAINING THE ENFORCEMENT, OPERATION, OR EXECUTION OF,
OR SETTING ASIDE, IN WHOLE OR IN PART ANY ACT OF CONGRESS UPON THE
GROUND THAT SUCH ACT OR ANY PART THEREOF IS REPUGNANT TO THE
CONSTITUTION OF THE UNITED STATES" SHALL BE GRANTED BY A DISTRICT COURT
"UNLESS THE APPLICATION FOR THE SAME" SHALL BE HEARD AND DETERMINED BY
THREE JUDGES.  WHEN THERE IS AN APPLICATION FOR SUCH AN INJUNCTION,
THREE JUDGES ARE TO BE CONVENED AND THE HEARING OF THE APPLICATION IS
TO BE EXPEDITED.  AN APPEAL MAY BE TAKEN DIRECTLY TO THIS COURT FROM A
DECREE "GRANTING OR DENYING, AFTER NOTICE AND HEARING, AN INTERLOCUTORY
OR PERMANENT INJUNCTION IN SUCH CASE." 

WE ARE OF THE OPINION THAT THE INSTANT CASE DOES NOT FALL WITHIN
THESE PROVISIONS.  THIS IS NOT A SUIT TO RESTRAIN THE ENFORCEMENT OF AN
ACT OF CONGRESS AND NO APPLICATION WAS MADE FOR SUCH AN INJUNCTION. 

THIS SUIT WAS BROUGHT ON JULY 5, 1937, BY THE APPELLEES, DONNELLY
GARMENT COMPANY AND DONNELLY GARMENT SALES COMPANY, TO OBTAIN AN
INJUNCTION RESTRAINING THE APPELLANTS, INTERNATIONAL LADIES' GARMENT
WORKERS' UNION, ITS OFFICERS AND AGENTS, FROM COMMITTING CERTAIN ACTS
ALLEGED TO BE IN FURTHERANCE OF A CONSPIRACY IN VIOLATION OF THE
SHERMAN ANTI-TRUST ACT AND THE CLAYTON ACT (15 U.S.C., C. 1).  THE
CONDUCT SOUGHT TO BE RESTRAINED CONSISTED OF PICKETING, BOYCOTTING AND
CERTAIN INTERFERENCES WITH PLAINTIFFS' BUSINESS, THEIR EMPLOYEES AND
CUSTOMERS.  APPELLEE, DONNELLY GARMENT WORKERS' UNION AND ITS
REPRESENTATIVES WERE PERMITTED TO INTERVENE AND SOUGHT SIMILAR RELIEF. 
THEIR PETITION IN INTERVENTION ALLEGED THAT THE DEFENDANTS (APPELLANTS)
HAD NOT BEEN AND WERE NOT ENGAGED IN A LABOR DISPUTE WITHIN THE MEANING
OF THE ACT OF CONGRESS OF MARCH 23, 1932, C. 90, 47 STAT. 70, KNOWN AS
THE NORRIS-LAGUARDIA ACT, NOR WITHIN THE MEANING OF THE ACT OF CONGRESS
OF JULY 5, 1935, C. 372, 49 STAT. 449, KNOWN AS THE NATIONAL LABOR
RELATIONS ACT, AND THAT NO LABOR DISPUTE WAS INVOLVED IN THIS
LITIGATION.  THEY FURTHER STATED THAT "IF THE ACTIONS AND COURSE OF
CONDUCT OF THE DEFENDANTS" WERE CONSTRUED TO BE A "LABOR DISPUTE"
WITHIN THE MEANING OF THOSE STATUTES, THE LATTER WOULD BE
UNCONSTITUTIONAL, AS SO INTERPRETED, BECAUSE IN CONTRAVENTION OF THE
FIFTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES AND OF ARTICLE
II, SEC. 30, OF THE CONSTITUTION OF THE STATE OF MISSOURI.  BY THEIR
AMENDED BILL OF COMPLAINT, APPELLEES, THE ORIGINAL PLAINTIFFS, MADE
SIMILAR ALLEGATIONS AS TO THE INAPPLICABILITY OF THE NORRIS-LAGUARDIA
ACT AND ITS INVALIDITY IF HELD APPLICABLE. 

ON THE PRESENTATION OF THE BILL, THE DISTRICT JUDGE GRANTED A
TEMPORARY RESTRAINING ORDER ENJOINING THE DEFENDANTS' CONDUCT OF WHICH
COMPLAINT WAS MADE.  A MOTION TO DISSOLVE THE RESTRAINING ORDER AND TO
DISMISS THE COMPLAINT WAS DENIED ON AUGUST 13, 1937.  20 F.SUPP.  767. 
AFTER THE PASSAGE OF THE ACT OF AUGUST 24, 1937, THE DISTRICT JUDGE
CERTIFIED TO THE ATTORNEY GENERAL THAT THE CONSTITUTIONALITY OF THE
NORRIS-LAGUARDIA ACT AND OF THE NATIONAL LABOR RELATIONS ACT HAD BEEN
"DRAWN IN QUESTION."  ON THE REQUEST OF THE DISTRICT JUDGE, A COURT OF
THREE JUDGES WAS CONSTITUTED.  THE MOTION OF THE DEFENDANTS TO DISMISS
THE BILL AND TO VACATE THE TEMPORARY RESTRAINING ORDER AND THE MOTION
OF THE PLAINTIFFS FOR AN INTERLOCUTORY INJUNCTION RESTRAINING THE
DEFENDANTS FROM COMMITTING THE ALLEGED UNLAWFUL ACTS IN PURSUANCE OF A
CONSPIRACY IN VIOLATION OF THE ANTI-TRUST ACTS, WERE THEN HEARD.  THE
MOTION TO DISMISS WAS DENIED AND THE INTERLOCUTORY INJUNCTION WAS
GRANTED AS PRAYED.  21 F.SUPP.  807. 

THERE WAS NO APPLICATION BEFORE THE DISTRICT COURT FOR AN INJUNCTION
RESTRAINING THE ENFORCEMENT OF ANY ACT OF CONGRESS.  IN CONSIDERING THE
APPLICATION FOR AN INJUNCTION RESTRAINING DEFENDANTS FROM PICKETING,
BOYCOTTING, ETC., THE DISTRICT COURT FOUND THAT THE GROUND OF DEFENSE
WAS THE DEFENDANTS' CONTENTION THAT THE NORRIS-LAGUARDIA ACT DEPRIVED
THE DISTRICT COURT OF JURISDICTION.  THE COURT HELD THAT THAT ACT HAD
NO APPLICATION TO THE CONTROVERSY AND THAT IT WAS UNNECESSARY TO
RESOLVE THE CONSTITUTIONAL QUESTION PRESENTED AS TO ITS VALIDITY.  ID.,
PP. 811, 814. 

THE ACT OF AUGUST 24, 1937, CAREFULLY DISTINGUISHES BETWEEN THE
DIFFERENT SITUATIONS TO WHICH ITS PROVISIONS ARE ADDRESSED.  SECTION 1
APPLIES "WHENEVER THE CONSTITUTIONALITY OF ANY ACT OF CONGRESS
AFFECTING THE PUBLIC INTEREST IS DRAWN IN QUESTION" IN ANY COURT OF THE
UNITED STATES IN ANY SUIT OR PROCEEDING TO WHICH THE UNITED STATES, OR
ITS AGENCY, OFFICER OR EMPLOYEE AS SUCH, IS NOT A PARTY.  THE FACT THAT
SUCH A QUESTION IS INVOLVED MUST BE CERTIFIED TO THE ATTORNEY GENERAL
AND THE UNITED STATES MUST BE PERMITTED TO INTERVENE WITH ALL THE
RIGHTS OF A PARTY.  TO MAKE THAT PROVISION APPLICABLE IT IS ENOUGH THAT
A QUESTION AS TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS IS
INVOLVED, HOWEVER IT MAY ARISE.  THE QUESTION MAY BE RAISED BY ANY
PARTY AND THE SECTION IS NOT LIMITED TO CASES WHERE AN INJUNCTION IS
SOUGHT TO RESTRAIN THE ENFORCEMENT OF THE ACT.  APART FROM PROVIDING
FOR INTERVENTION, AND THE RIGHT OF THE UNITED STATES TO PRESENT
EVIDENCE AND ARGUMENT, SEC. 1 DOES NOT REQUIRE ANY CHANGE IN PROCEDURE
IN THE HEARING OF THE CAUSE OR IN RELATION TO APPEAL. 

OR ITS AGENCY, OFFICER OR EMPLOYEE AS SUCH, IS A PARTY OR IN WHICH THE
UNITED STATES HAS INTERVENED AND IN WHICH "THE DECISION IS AGAINST THE
CONSTITUTIONALITY OF ANY ACT OF CONGRESS."  IN THAT EVENT, AN APPEAL
MAY BE TAKEN DIRECTLY TO THIS COURT.  THAT SECTION APPLIES, HOWEVER THE
QUESTION OF CONSTITUTIONALITY MAY ARISE, PROVIDED THE UNITED STATES IS
OR HAS BECOME A PARTY AND THE DECISION IS AGAINST THE VALIDITY OF THE
ACT.  THAT SECTION DOES NOT REQUIRE A COURT OF THREE JUDGES, AND NO
PROVISION IS MADE FOR A DIRECT APPEAL TO THIS COURT IF THE DECISION IS
IN FAVOR OF THE CONSTITUTIONALITY OF THE ACT. 

THE PROVISION IN SEC. 3 FOR A DETERMINATION BY THREE JUDGES AND FOR A
DIRECT APPEAL TO THIS COURT IS LIMITED TO THE PARTICULAR CLASS OF CASES
THERE DESCRIBED.  SECTION 3 DOES NOT PROVIDE FOR A CASE WHERE THE
VALIDITY OF AN ACT OF CONGRESS IS MERELY DRAWN IN QUESTION, ALBEIT THAT
QUESTION BE DECIDED, BUT ONLY FOR A CASE WHERE THERE IS AN APPLICATION
FOR AN INTERLOCUTORY OR PERMANENT INJUNCTION TO RESTRAIN THE
ENFORCEMENT OF AN ACT OF CONGRESS.  THE CAREFUL CHOICE OF LANGUAGE IN
THE DIFFERENT SECTIONS OF THE ACT POINTS CLEARLY TO A DISTINCTION IN
CATEGORIES.  HAD CONGRESS INTENDED THE PROVISION IN SEC. 3, FOR THREE
JUDGES AND DIRECT APPEAL, TO APPLY WHENEVER A QUESTION OF THE VALIDITY
OF AN ACT OF CONGRESS BECAME INVOLVED, CONGRESS WOULD NATURALLY HAVE
USED THE FAMILIAR PHRASE "DRAWN IN QUESTION," AS IN THE FIRST SECTION
OF THE ACT.  WHILE THERE ARE SOME VARIATIONS IN TEXT, THE PROVISION IN
SEC. 3 HAS A MANIFEST ANALOGY TO THAT OF SEC. 266 OF THE JUDICIAL CODE
(28 U.S.C. 380) PROVIDING FOR THREE JUDGES AND A DIRECT APPEAL TO THIS
COURT IN CASE OF AN APPLICATION FOR AN INJUNCTION RESTRAINING THE
ENFORCEMENT OF A STATE STATUTE BY RESTRAINING THE ACTION OF STATE
OFFICERS.  THAT PROVISION IS HINGED ON AN APPLICATION FOR INJUNCTION,
AND NOT ON THE MERE DRAWING IN QUESTION OF THE CONSTITUTIONALITY OF A
STATE ENACTMENT.  COMPARE SMITH V. WILSON, 273 U.S. 388, 391; STRATTON
V. ST. LOUIS SOUTHWESTERN RY. CO., 282 U.S. 10, 15. 

THE ENTIRE PROCEDURE PRESCRIBED IN SEC. 3 TURNS ON THE PRESENTATION
OF AN APPLICATION FOR AN INJUNCTION TO RESTRAIN THE ENFORCEMENT OF A
FEDERAL STATUTE.  IT IS WHEN "SUCH APPLICATION" IS PRESENTED TO A JUDGE
THAT THE PARTICIPATION OF TWO OTHER JUDGES IS TO BE REQUESTED.  IT IS
"SUCH APPLICATION" WHICH IS NOT TO BE HEARD OR DETERMINED BEFORE AT
LEAST FIVE DAYS' NOTICE TO THE ATTORNEY GENERAL.  THE JUDGE TO WHOM
"THE APPLICATION IS MADE" MAY GRANT A TEMPORARY RESTRAINING ORDER, AND
THE COURT "AT THE TIME OF HEARING SUCH APPLICATION" MAY CONTINUE THE
TEMPORARY STAY.  AND IT IS THE HEARING "UPON ANY SUCH APPLICATION FOR
AN INTERLOCUTORY OR PERMANENT INJUNCTION" THAT IS TO BE GIVEN
PRECEDENCE AND EXPEDITED.  APPEAL IS TO BE TAKEN DIRECTLY TO THIS COURT
WHERE THE DECREE GRANTS OR DENIES "AN INTERLOCUTORY OR PERMANENT
INJUNCTION IN SUCH CASE." 

THE CONTENTION OF PLAINTIFFS THAT THE NORRIS-LAGUARDIA ACT WAS NOT
APPLICABLE TO THE CONDUCT OF DEFENDANTS AND WOULD BE INVALID IF
OTHERWISE INTERPRETED WAS BUT AN ANTICIPATION OF A DEFENSE AND DID NOT
CONSTITUTE AN APPLICATION FOR INJUNCTION IN ANY PROPER SENSE OF THE
TERM AS USED IN SEC. 3.  THE ONLY APPLICATION FOR AN INJUNCTION WAS ONE
TO RESTRAIN THE DEFENDANTS FROM COMMITTING ACTS IN PURSUANCE OF THE
ALLEGED CONSPIRACY IN VIOLATION OF THE ANTI-TRUST ACTS.  THE STATUTE
DID NOT REQUIRE A DECISION BY THREE JUDGES UPON THAT APPLICATION OR
AUTHORIZE A DIRECT APPEAL TO THIS COURT. 

BUT ALTHOUGH THE MERITS CANNOT BE REVIEWED HERE, THIS COURT, BY
VIRTUE OF ITS APPELLATE JURISDICTION IN CASES OF DECREES PURPORTING TO
BE ENTERED UNDER THE ACT OF AUGUST 24, 1937, AS IN CASES OF DECREES
PURPORTING TO BE ENTERED UNDER SEC. 266 OF THE JUDICIAL CODE,
NECESSARILY HAS JURISDICTION TO DETERMINE WHETHER THE COURT BELOW HAS
ACTED WITHIN THE AUTHORITY CONFERRED BY THE STATUTE AND TO MAKE SUCH
CORRECTIVE ORDER AS MAY BE APPROPRIATE TO THE ENFORCEMENT OF THE
LIMITATIONS WHICH THE STATUTE IMPOSES.  WE HAVE SAID THAT SUCH A CASE
IS ANALOGOUS TO THOSE IN WHICH THIS COURT, FINDING THAT THE COURT BELOW
HAS ACTED WITHOUT JURISDICTION, EXERCISES ITS APPELLATE JURISDICTION TO
CORRECT THE IMPROPER ACTION.  GULLY V. INTERSTATE NATURAL GAS CO., 292
U.S. 16, 18; OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO., 292
U.S. 386, 392; WALL V. MCNEE, 296 U.S. 547; UNITED STATES V. CORRICK,
298 U.S. 435, 440.  AS APPELLANTS BY MISTAKENLY APPEALING DIRECTLY TO
THIS COURT HAVE LOST THEIR OPPORTUNITY TO HAVE THE DECREE REVIEWED ON
ITS MERITS, AS THE TIME FOR APPEAL TO THE CIRCUIT COURT OF APPEALS HAS
EXPIRED, OUR APPROPRIATE ACTION, WITHOUT PASSING UPON THE MERITS, IS TO
VACATE THE DECREE BELOW AND TO REMAND THE CAUSE TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS TO BE TAKEN INDEPENDENTLY OF SEC. 3 OF THE ACT
OF AUGUST 24, 1937.  GULLY V. INTERSTATE NATURAL GAS CO., SUPRA;
OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO., SUPRA.  JUDGMENT
VACATED. 

FN1  THE FIRST THREE SECTIONS OF THE ACT OF AUGUST 24, 1937, ARE AS
FOLLOWS: 

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT WHENEVER THE
CONSTITUTIONALITY OF ANY ACT OF CONGRESS AFFECTING THE PUBLIC INTEREST
IS DRAWN IN QUESTION IN ANY COURT OF THE UNITED STATES IN ANY SUIT OR
PROCEEDING TO WHICH THE UNITED STATES, OR ANY AGENCY THEREOF, OR ANY
OFFICER OR EMPLOYEE THEREOF, AS SUCH OFFICER OR EMPLOYEE, IS NOT A
PARTY, THE COURT HAVING JURISDICTION OF THE SUIT OR PROCEEDING SHALL
CERTIFY SUCH FACT TO THE ATTORNEY GENERAL.  IN ANY SUCH CASE THE COURT
SHALL PERMIT THE UNITED STATES TO INTERVENE AND BECOME A PARTY FOR
PRESENTATION OF EVIDENCE (IF EVIDENCE IS OTHERWISE RECEIVABLE IN SUCH
SUIT OR PROCEEDING) AND ARGUMENT UPON THE QUESTION OF THE
CONSTITUTIONALITY OF SUCH ACT.  IN ANY SUCH SUIT OR PROCEEDING THE
UNITED STATES SHALL, SUBJECT TO THE APPLICABLE PROVISIONS OF LAW, HAVE
ALL THE RIGHTS OF A PARTY AND THE LIABILITIES OF A PARTY AS TO COURT
COSTS TO THE EXTENT NECESSARY FOR A PROPER PRESENTATION OF THE FACTS
AND LAW RELATING TO THE CONSTITUTIONALITY OF SUCH ACT. 

"SEC. 2.  IN ANY SUIT OR PROCEEDING IN ANY COURT OF THE UNITED STATES
TO WHICH THE UNITED STATES, OR ANY AGENCY THEREOF, OR ANY OFFICER OR
EMPLOYEE THEREOF, AS SUCH OFFICER OR EMPLOYEE, IS A PARTY, OR IN WHICH
THE UNITED STATES HAS INTERVENED AND BECOME A PARTY, AND IN WHICH THE
DECISION IS AGAINST THE CONSTITUTIONALITY OF ANY ACT OF CONGRESS, AN
APPEAL MAY BE TAKEN DIRECTLY TO THE SUPREME COURT OF THE UNITED STATES
BY THE UNITED STATES OR ANY OTHER PARTY TO SUCH SUIT OR PROCEEDING UPON
APPLICATION THEREFOR OR NOTICE THEREOF WITHIN THIRTY DAYS AFTER THE
ENTRY OF A FINAL OR INTERLOCUTORY JUDGMENT, DECREE, OR ORDER; AND IN
THE EVENT THAT ANY SUCH APPEAL IS TAKEN, ANY APPEAL OR CROSS-APPEAL BY
ANY PARTY TO THE SUIT OR PROCEEDING TAKEN PREVIOUSLY, OR TAKEN WITHIN
SIXTY DAYS AFTER NOTICE OF AN APPEAL UNDER THIS SECTION, SHALL ALSO BE
OR BE TREATED AS TAKEN DIRECTLY TO THE SUPREME COURT OF THE UNITED
STATES.  IN THE EVENT THAT AN APPEAL IS TAKEN UNDER THIS SECTION, THE
RECORD SHALL BE MADE UP AND THE CASE DOCKETED IN THE SUPREME COURT OF
THE UNITED STATES WITHIN SIXTY DAYS FROM THE TIME SUCH APPEAL IS
ALLOWED, UNDER SUCH RULES AS MAY BE PRESCRIBED BY THE PROPER COURTS. 
APPEALS UNDER THIS SECTION SHALL BE HEARD BY THE SUPREME COURT OF THE
UNITED STATES AT THE EARLIEST POSSIBLE TIME AND SHALL TAKE PRECEDENCE
OVER ALL OTHER MATTERS NOT OF A LIKE CHARACTER.  THIS SECTION SHALL NOT
BE CONSTRUED TO BE IN DEROGATION OF ANY RIGHT OF DIRECT APPEAL TO THE
SUPREME COURT OF THE UNITED STATES UNDER EXISTING PROVISIONS OF LAW. 

"SEC. 3.  NO INTERLOCUTORY OR PERMANENT INJUNCTION SUSPENDING OR
RESTRAINING THE ENFORCEMENT, OPERATION OR EXECUTION OF, OR SETTING
ASIDE, IN WHOLE OR IN PART, ANY ACT OF CONGRESS UPON THE GROUND THAT
SUCH ACT OR ANY PART THEREOF IS REPUGNANT TO THE CONSTITUTION OF THE
UNITED STATES SHALL BE ISSUED OR GRANTED BY ANY DISTRICT COURT OF THE
UNITED STATES, OR BY ANY JUDGE THEREOF, OR BY ANY CIRCUIT JUDGE ACTING
AS DISTRICT JUDGE, UNLESS THE APPLICATION FOR THE SAME SHALL BE
PRESENTED TO A CIRCUIT OR DISTRICT JUDGE, AND SHALL BE HEARD AND
DETERMINED BY THREE JUDGES, OF WHOM AT LEAST ONE SHALL BE A CIRCUIT
JUDGE.  WHEN ANY SUCH APPLICATION IS PRESENTED TO A JUDGE, HE SHALL
IMMEDIATELY REQUEST THE SENIOR CIRCUIT JUDGE (OR IN HIS ABSENCE, THE
PRESIDING CIRCUIT JUDGE) OF THE CIRCUIT IN WHICH SUCH DISTRICT COURT IS
LOCATED TO DESIGNATE TWO OTHER JUDGES TO PARTICIPATE IN HEARING AND
DETERMINING SUCH APPLICATION.  IT SHALL BE THE DUTY OF THE SENIOR
CIRCUIT JUDGE OR THE PRESIDING CIRCUIT JUDGE, AS THE CASE MAY BE, TO
DESIGNATE IMMEDIATELY TWO OTHER JUDGES FROM SUCH CIRCUIT FOR SUCH
PURPOSE, AND IT SHALL BE THE DUTY OF THE JUDGES SO DESIGNATED TO
PARTICIPATE IN SUCH HEARING AND DETERMINATION.  SUCH APPLICATION SHALL
NOT BE HEARD OR DETERMINED BEFORE AT LEAST FIVE DAYS' NOTICE OF THE
HEARING HAS BEEN GIVEN TO THE ATTORNEY GENERAL AND TO SUCH OTHER
PERSONS AS MAY BE DEFENDANTS IN THE SUIT:  PROVIDED, THAT IF OF OPINION
THAT IRREPARABLE LOSS OR DAMAGE WOULD RESULT TO THE PETITIONER UNLESS A
TEMPORARY RESTRAINING ORDER IS GRANTED, THE JUDGE TO WHOM THE
APPLICATION IS MADE MAY GRANT SUCH TEMPORARY RESTRAINING ORDER AT ANY
TIME BEFORE THE HEARING AND DETERMINATION OF THE APPLICATION, BUT SUCH
TEMPORARY RESTRAINING ORDER SHALL REMAIN IN FORCE ONLY UNTIL SUCH
HEARING AND DETERMINATION UPON NOTICE AS AFORESAID, AND SUCH TEMPORARY
RESTRAINING ORDER SHALL CONTAIN A SPECIFIC FINDING, BASED UPON EVIDENCE
SUBMITTED TO THE COURT MAKING THE ORDER AND IDENTIFIED BY REFERENCE
THERETO, THAT SUCH IRREPARABLE LOSS OR DAMAGE WOULD RESULT TO THE
PETITIONER AND SPECIFYING THE NATURE OF THE LOSS OR DAMAGE.  THE SAID
COURT MAY, AT THE TIME OF HEARING SUCH APPLICATION, UPON A LIKE
FINDING, CONTINUE THE TEMPORARY STAY OR SUSPENSION, IN WHOLE OR IN
PART, UNTIL DECISION UPON THE APPLICATION.  THE HEARING UPON ANY SUCH
APPLICATION FOR AN INTERLOCUTORY OR PERMANENT INJUNCTION SHALL BE GIVEN
PRECEDENCE AND SHALL BE IN EVERY WAY EXPEDITED AND BE ASSIGNED FOR A
HEARING AT THE EARLIEST PRACTICABLE DAY.  AN APPEAL MAY BE TAKEN
DIRECTLY TO THE SUPREME COURT OF THE UNITED STATES UPON APPLICATION
THEREFOR OR NOTICE THEREOF WITHIN THIRTY DAYS AFTER THE ENTRY OF THE
ORDER, DECREE, OR JUDGMENT GRANTING OR DENYING, AFTER NOTICE AND
HEARING, AN INTERLOCUTORY OR PERMANENT INJUNCTION IN SUCH CASE.  IN THE
EVENT THAT AN APPEAL IS TAKEN UNDER THIS SECTION, THE RECORD SHALL BE
MADE UP AND THE CASE DOCKETED IN THE SUPREME COURT OF THE UNITED STATES
WITHIN SIXTY DAYS FROM THE TIME SUCH APPEAL IS ALLOWED, UNDER SUCH
RULES AS MAY BE PRESCRIBED BY THE PROPER COURTS.  APPEALS UNDER THIS
EARLIEST POSSIBLE TIME AND SHALL TAKE PRECEDENCE OVER ALL OTHER MATTERS
NOT OF A LIKE CHARACTER.  THIS SECTION SHALL NOT BE CONSTRUED TO BE IN
DEROGATION OF ANY RIGHT OF DIRECT APPEAL TO THE SUPREME COURT OF THE
UNITED STATES UNDER EXISTING PROVISIONS OF LAW." 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :
















WATER SERVICE CO. V. REDDING, 304 U.S. 252 


NO. 976.  MOTION TO DISMISS.  - DECIDED MAY 16, 1938.  - 22 F.SUPP. 
641, AFFIRMED. 


1.  A SUIT BEFORE A DISTRICT COURT OF THREE JUDGES, CONVENED UNDER
SEC. 3, ACT OF AUG. 24, 1937, TO ENJOIN ENFORCEMENT OF FEDERAL STATUTES
ON THE GROUND OF UNCONSTITUTIONALITY, IS WITHOUT JURISDICTION, IF NO
SUBSTANTIAL FEDERAL QUESTION IS PRESENTED; AND IN THE ABSENCE OF SUCH
QUESTION THE COURT CAN NOT PROCEED TO THE DETERMINATION OF LOCAL
QUESTIONS BUT MUST DISMISS THE BILL.  P. 254. 

2.  LACK OF A SUBSTANTIAL FEDERAL QUESTION WHICH THUS DEFEATS THE
JURISDICTION OF THE DISTRICT COURT MAY APPEAR FROM A DECISION OF THIS
COURT IN ANOTHER CASE RENDERED AFTER THE FILING OF THE BILL IN THE
DISTRICT COURT AND AFTER PRESENTATION OF A MOTION FOR PRELIMINARY
INJUNCTION.  P. 255. 

3. A WATER SERVICE COMPANY SUED TO ENJOIN A CITY FROM RECEIVING A
GRANT OF FEDERAL FUNDS UNDER TITLE II OF THE NATIONAL INDUSTRIAL
RECOVERY ACT, AND FROM USING PROCEEDS OF CITY BONDS, FOR THE PURPOSE OF
CONSTRUCTING A MUNICIPAL WATER PLANT, CLAIMING THAT THE GRANT WAS IN
VIOLATION OF THE FEDERAL CONSTITUTION AND FEDERAL STATUTES, AND THE
BOND ISSUE IN VIOLATION OF THE CONSTITUTION AND STATUTES OF
CALIFORNIA.  HELD, THAT IN VIEW OF THIS COURT'S LATER DECISION IN
ALABAMA POWER CO. V. ICKES, 302 U.S. 464, THERE WAS NO SUBSTANTIAL
FEDERAL QUESTION; AND THAT THE QUESTION OF THE BOND ISSUE WAS DISTINCT
AND LOCAL.  P. 255. 

CALIFORNIA WATER SERVICE CO. ET AL. V. CITY OF REDDING ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES,
DISMISSING A BILL FOR AN INJUNCTION. 

PER CURIAM. 

THIS SUIT WAS BROUGHT BY APPELLANTS, CALIFORNIA WATER SERVICE COMPANY
AND CARLO VEGLIA, TO ENJOIN THE CITY OF REDDING, CALIFORNIA, FROM
RECEIVING A GRANT OF $162,000, ALLOTTED BY THE FEDERAL ADMINISTRATOR OF
PUBLIC WORKS UNDER TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT AND
SUPPLEMENTAL LEGISLATION,  FN1  TO AID THE CITY IN THE CONSTRUCTION OF
A MUNICIPAL WATER WORKS SYSTEM; AND ALSO TO ENJOIN THE CITY FROM
EXPENDING THE PROCEEDS OF THE SALE OF $200,000 OF THE CITY'S BONDS FOR
THE PURPOSE OF CONSTRUCTING SUCH A PLANT.  THE BILL OF COMPLAINT
ALLEGED THAT THE GRANT OF FEDERAL FUNDS AND THE LEGISLATION SAID TO
AUTHORIZE IT WERE INVALID UNDER THE FEDERAL CONSTITUTION (ARTICLE I,
SECS. 1, 8 AND 9; ARTICLE II, SECS. 1 AND 3; AND THE TENTH AMENDMENT),
AND ALSO THAT THE GRANT WAS IN VIOLATION OF THE FEDERAL STATUTES
CITED.  THE SUIT WAS BROUGHT PRIOR TO THE DECISION OF THIS COURT IN THE
CASE OF ALABAMA POWER CO. V. ICKES, 302 U.S. 464.  THE BOND ISSUE OF
THE CITY WAS ALLEGED TO BE INVALID UNDER THE CONSTITUTION AND STATUTES
OF CALIFORNIA. 

TEMPORARY AND PERMANENT INJUNCTIONS WERE SOUGHT AND THE DISTRICT
COURT, COMPOSED OF THREE JUDGES, CONVENED UNDER SEC. 3 OF THE ACT OF
AUGUST 24, 1937(50 STAT. 751, 752), DECIDED THAT THE BILL OF COMPLAINT
STATED NO CAUSE OF ACTION WITHIN THE COGNIZANCE OF THE COURT.  THE
TEMPORARY RESTRAINING ORDER WAS DISSOLVED AND THE COMPLAINT WAS
DISMISSED.  THE CASE COMES HERE ON APPEAL.  APPELLEES MOVE TO DISMISS
OR AFFIRM. 

THE DISTRICT COURT HELD THAT THE FEDERAL QUESTION SOUGHT TO BE RAISED
WAS IDENTICAL WITH THAT PRESENTED IN ALABAMA POWER CO. V. ICKES, SUPRA;
THAT THE ASSERTED DISTINCTION THAT THE PROPOSED ACTION OF DEFENDANTS,
THE FEDERAL ADMINISTRATOR NOT BEING A PARTY, WAS MOTIVATED BY A DESIRE
OR PURPOSE TO INJURE OR COERCE THE PLAINTIFF COMPANY, WAS OF NO AVAIL,
AS THE CITY WAS FREE TO BARGAIN WITH THE PLAINTIFF AND TO CONSTRUCT A
RIVAL SYSTEM IF THE PLAINTIFF CHOSE NOT TO SELL ITS PLANT AND THE
MOTIVE ACTUATING THE CITY IN THE EXERCISE OF ITS RIGHTS WAS
IMMATERIAL.  SEE ISBRANDTSEN-MOLLER CO. V. UNITED STATES, 300 U.S. 139,
145.  IN THE ABSENCE OF A SUBSTANTIAL FEDERAL QUESTION, THE COURT RULED
THAT THE CHARGE THAT THE BONDS OF THE CITY WERE INVALID UNDER THE STATE
LAW PRESENTED A PURELY LOCAL ISSUE WHICH THE COURT WAS NOT REQUIRED TO
CONSIDER. 

WE ARE OF THE OPINION THAT THESE RULINGS WERE CORRECT.  WE HAVE HELD
THAT SEC. 266 OF THE JUDICIAL CODE DOES NOT APPLY UNLESS THERE IS A
SUBSTANTIAL CLAIM OF THE UNCONSTITUTIONALITY OF A STATE STATUTE OR
ADMINISTRATIVE ORDER AS THERE DESCRIBED.  IT IS THEREFORE THE DUTY OF A
DISTRICT JUDGE, TO WHOM AN APPLICATION FOR AN INJUNCTION RESTRAINING
THE ENFORCEMENT OF A STATE STATUTE OR ORDER IS MADE, TO SCRUTINIZE THE
BILL OF COMPLAINT TO ASCERTAIN WHETHER A SUBSTANTIAL FEDERAL QUESTION
IS PRESENTED, AS OTHERWISE THE PROVISION FOR THE CONVENING OF A COURT
OF THREE JUDGES IS NOT APPLICABLE.  EX PARTE BUDER, 271 U.S. 461, 467;
EX PARTE PORESKY, 290 U.S. 30.  WE THINK THAT A SIMILAR RULE GOVERNS
PROCEEDINGS UNDER SEC. 3 OF THE ACT OF AUGUST 24, 1937, AS TO THE
PARTICIPATION OF THREE JUDGES IN PASSING UPON APPLICATIONS FOR
INJUNCTIONS RESTRAINING THE ENFORCEMENT OF FEDERAL STATUTES UPON THE
GROUND OF CONSTITUTIONAL INVALIDITY.  HAD THE DECISIONS IN THE CASES OF
ALABAMA POWER CO. V. ICKES, SUPRA, AND OF DUKE POWER CO. V. GREENWOOD
COUNTY, 302 U.S. 485, BEEN RENDERED PRIOR TO THE FILING OF THE BILL OF
COMPLAINT IN THE INSTANT CASE, NO SUBSTANTIAL FEDERAL QUESTION WOULD
HAVE BEEN PRESENTED.  THE LACK OF SUBSTANTIALITY IN A FEDERAL QUESTION
MAY APPEAR EITHER BECAUSE IT IS OBVIOUSLY WITHOUT MERIT OR BECAUSE ITS
UNSOUNDNESS SO CLEARLY RESULTS FROM THE PREVIOUS DECISIONS OF THIS
COURT AS TO FORECLOSE THE SUBJECT.  LEVERING & GARRIGUES CO. V. MORRIN,
289 U.S. 103, 105, 106.  AND, HERE, ALTHOUGH THE BILL OF COMPLAINT HAD
BEEN PREVIOUSLY FILED, AND A MOTION FOR AN INTERLOCUTORY INJUNCTION
PRESENTED, IT WAS APPARENT AFTER OUR DECISIONS IN THE CASES CITED THAT
THE FEDERAL QUESTION WAS WITHOUT SUBSTANCE AND IT BECAME THE DUTY OF
THE DISTRICT COURT TO DISMISS THE BILL OF COMPLAINT UPON THAT GROUND. 

IN OKLAHOMA GAS & ELECTRIC CO. V. OKLAHOMA PACKING CO., 292 U.S. 386,
391, WE HAD OCCASION TO OBSERVE THAT "THE THREE JUDGE PROCEDURE IS AN
EXTRAORDINARY ONE, IMPOSING A HEAVY BURDEN ON FEDERAL COURTS, WITH
ATTENDANT EXPENSE AND DELAY"; THAT "THAT PROCEDURE, DESIGNED FOR A
SPECIFIC CLASS OF CASES, SHARPLY DEFINED, SHOULD NOT BE LIGHTLY
EXTENDED"; AND THAT RESTRICTIONS PLACED UPON APPELLATE REVIEW IN THIS
COURT "WOULD LIKEWISE BE MEASURABLY IMPAIRED WERE GROUNDLESS
ALLEGATIONS THUS TO SUFFICE."  WE CONCLUDED THAT "WHEN IT BECOMES
APPARENT THAT THE PLAINTIFF HAS NO CASE FOR THREE JUDGES, THOUGH THEY
MAY HAVE BEEN PROPERLY CONVENED, THEIR ACTION IS NO LONGER
PRESCRIBED." 

IT IS ALSO CLEAR THAT THE PRESENTATION OF A LOCAL QUESTION IN THE
INSTANT CASE AS TO THE INVALIDITY OF THE CITY'S BONDS UNDER THE STATE
LAW DID NOT SUFFICE TO SAVE JURISDICTION.  WHILE, IF THE COURT HAD
JURISDICTION BY REASON OF THE PRESENCE OF A SUBSTANTIAL FEDERAL
QUESTION, IT COULD PROCEED TO PASS UPON THE LOCAL ISSUE (LOUISVILLE &
NASHVILLE R. CO. V. GARRETT, 231 U.S. 298, 303; DAVIS V. WALLACE, 257
U.S. 478, 482; STERLING V. CONSTANTIN, 287 U.S. 378, 393, 394; RAILROAD
COMMISSION V. PACIFIC GAS & ELECTRIC CO., 302 U.S. 388, 391), IT WAS
THE PRESENCE OF THE FEDERAL QUESTION WHICH GAVE THE COURT THAT
AUTHORITY, AND IN ITS ABSENCE, THROUGH LACK OF SUBSTANCE, THE COURT WAS
NOT ENTITLED TO GO FURTHER.  IN NORUMBEGA CO. V. BENNETT, 290 U.S. 598,
THE DISTRICT COURT OF THREE JUDGES, CONSIDERING THAT A FEDERAL
CONSTITUTIONAL QUESTION WAS INVOLVED, PASSED UPON THE QUESTION OF THE
CONSTRUCTION OF THE STATE STATUTE AND, DENYING A MOTION TO DISMISS FOR
LACK OF JURISDICTION, DISMISSED THE BILL OF COMPLAINT FOR WANT OF
EQUITY.  3 F.SUPP.  500, 502.  THIS COURT REVERSED THE DECREE AND
REMANDED THE CAUSE WITH DIRECTIONS TO DISMISS THE BILL OF COMPLAINT FOR
THE WANT OF JURISDICTION BECAUSE OF THE ABSENCE OF A SUBSTANTIAL
FEDERAL QUESTION. 

WE THINK THAT THE ACT OF AUGUST 24, 1937, DID NOT CONTEMPLATE THAT A
COURT OF THREE JUDGES SHOULD BE CONVENED, OR, IF CONVENED, SHOULD
CONTINUE TO ACT, MERELY FOR THE DECISION OF A LOCAL QUESTION WHERE NO
SUBSTANTIAL FEDERAL QUESTION IS INVOLVED.  WE AGREE WITH THE DISTRICT
COURT THAT THE ATTEMPT TO BLEND THE CONTENTION AS TO THE VALIDITY OF
THE BOND ISSUE UNDER STATE LAW WITH THE QUESTION AS TO THE AUTHORITY TO
MAKE THE FEDERAL GRANT UNDER THE FEDERAL STATUTES, SO AS TO GIVE THE
FORMER THE ASPECT OF A FEDERAL QUESTION, IS UNAVAILING.  THE LOCAL
QUESTION AND THE FEDERAL QUESTION ARE DISTINCT.  SEE HURN V. OURSLER,
289 U.S. 238, 245, 246. 

THE COURT BELOW RIGHTLY DISMISSED THE BILL OF COMPLAINT AND THE
MOTION TO AFFIRM ITS DECREE IS GRANTED.  AFFIRMED. 

FN1  ACTS OF JUNE 6, 1933, C. 90, 48 STAT. 200-210; APRIL 8, 1935, C.
48, 49 STAT. 115, 119; JUNE 29, 1937, C. 401, SECS. 201-207, 50 STAT.
352. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




TRADE COMM'N V. GOODYEAR CO., 304 U.S. 257 


NO. 756.  ARGUED APRIL 25, 1938.  - DECIDED MAY 16, 1938.  - 92 F.2D
677, 679, REVERSED. 


1.  THE AMENDMENT, JUNE 16, 1936, OF SEC. 2 OF THE CLAYTON ACT, WITH
RESPECT TO PERMISSIBILITY OF PRICE DISCRIMINATIONS BASED ON QUANTITIES
SOLD, WAS NOT INTENDED TO AFFECT ORDERS OF THE FEDERAL TRADE COMMISSION
ISSUED BEFORE THE EFFECTIVE DATE OF THE AMENDMENT.  P. 258. 

2.  ABANDONMENT OF A PRICE ARRANGEMENT FOUND ILLEGAL AND ORDERED
DISCONTINUED BY THE FEDERAL TRADE COMMISSION, DOES NOT DEPRIVE
RESPONDENT OF THE RIGHT TO HAVE THE LEGALITY OF THE PRACTICE AND THE
VALIDITY OF THE ORDER DETERMINED ON REVIEW BY THE CIRCUIT COURT OF
APPEALS.  THE CONTROVERSY DOES NOT BECOME MOOT.  P. 260. 

FEDERAL TRADE COMMISSION V. GOODYEAR TIRE & RUBBER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 303 U.S. 631, TO REVIEW A JUDGMENT SETTING ASIDE AN ORDER
OF THE FEDERAL TRADE COMMISSION. 

PER CURIAM. 

IN SEPTEMBER, 1933, THE FEDERAL TRADE COMMISSION CHARGED RESPONDENT,
THE GOODYEAR TIRE & RUBBER COMPANY, WITH THE VIOLATION OF SEC. 2 OF THE
CLAYTON ACT (15 U.S.C. 13) IN SELLING TIRES, TUBES, ETC. TO SEARS,
ROEBUCK & COMPANY AT DISCRIMINATORY PRICES.  RESPONDENT, INVOKING THE
FIRST PROVISO IN SEC. 2,  FN1  CONTENDED THAT ITS CONTRACTS WITH SEARS,
ROEBUCK & COMPANY FOR SALES INVOLVING LOWER NET PRICES THAN THOSE
CHARGED TO INDEPENDENT DEALERS WERE MADE BECAUSE OF THE GREAT
DIFFERENCE IN THE QUANTITIES SOLD.  AFTER HEARING, THE COMMISSION RULED
THAT IT DID NOT CONSIDER A DIFFERENCE IN PRICE TO BE ON ACCOUNT OF
QUANTITY UNLESS IT WAS BASED ON A DIFFERENCE IN COST AND WAS REASONABLY
RELATED TO AND APPROXIMATELY NO MORE THAN THAT DIFFERENCE.  IN MARCH,
1936, THE COMMISSION ISSUED AN ORDER REQUIRING RESPONDENT TO DESIST
FROM DISCRIMINATIONS IN PRICES AS DESCRIBED. 

PENDING THE HEARING IN THE CIRCUIT COURT OF APPEALS OF RESPONDENT'S
PETITION FOR REVIEW, THE CONGRESS AMENDED SEC. 2 OF THE CLAYTON ACT. 
ACT OF JUNE 19, 1936, C. 592, 49 STAT. 1526.  THE FIRST PROVISO WAS
AMENDED TO READ AS FOLLOWS: 

"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:  ...  " 

THEREUPON, RESPONDENT INFORMED THE CIRCUIT COURT OF APPEALS THAT IN
VIEW OF THIS PROVISION RESPONDENT HAD CEASED TO MANUFACTURE TIRES FOR
SEARS, ROEBUCK & COMPANY UNDER THE TERMS OF ITS EXISTING CONTRACT;
THAT, TO DISPOSE OF THE STOCK ON HAND, THE PARTIES HAD MADE A NEW PRICE
ARRANGEMENT DESIGNED TO CONFORM TO THE NEW LAW; AND THAT WITHIN THE
YEAR ALL TRANSACTIONS BETWEEN RESPONDENT AND SEARS, ROEBUCK & COMPANY
CEASED AND OBLIGATIONS WERE TERMINATED BY MUTUAL RELEASES.  92 F.2D
677, 679. 

CONSIDERING THAT THERE WAS NO CONTROVERSY BETWEEN THE PARTIES AS TO
THE ILLEGAL CHARACTER OF RESPONDENT'S PRACTICES UNDER THE AMENDED ACT,
THE CIRCUIT COURT OF APPEALS CONCLUDED THAT THE CASE HAD BECOME MOOT. 
IN THAT VIEW THE COURT SET ASIDE THE ORDER OF THE COMMISSION AND
REMANDED THE CASE "BUT WITHOUT DIRECTION TO THE COMMISSION TO DISMISS
THE COMPLAINT AND WITHOUT PREJUDICE TO ITS FILING A SUPPLEMENTAL
COMPLAINT IN THE ORIGINAL PROCEEDING IF UNDER SEC. 2 OF THE AMENDATORY
ACT THIS MAY NOW BE DONE" AS TO WHICH THE COURT EXPRESSED NO OPINION. 
ID., P. 681. 

BOTH THE COMMISSION AND THE RESPONDENT CONTENDED BELOW, AND CONTEND
HERE, THAT THE CASE HAS NOT BECOME MOOT.  WHILE THEY DISAGREE IN THEIR
REASONING, THEY COME TO THE SAME CONCLUSION UPON THIS POINT, AND BOTH
ASK THAT THE CASE BE REMANDED TO THE CIRCUIT COURT OF APPEALS WITH
DIRECTIONS TO DETERMINE IT UPON THE MERITS.  WE THINK THAT THEIR
CONCLUSION IS CORRECT AND THAT THE REMAND SHOULD BE MADE. 

THE COMMISSION HAS REASON TO BELIEVE THAT ANY PERSON IS VIOLATING OR
HAS VIOLATED THE PROVISIONS OF THE ACT, AND UPON HEARING SO FINDS, THE
COMMISSION SHALL ISSUE AN ORDER REQUIRING SUCH PERSON TO CEASE AND
DESIST FROM SUCH VIOLATIONS.  IN CASE OF FAILURE TO OBEY ITS ORDER, THE
COMMISSION MAY APPLY TO THE CIRCUIT COURT OF APPEALS FOR ENFORCEMENT. 
AND ANYONE REQUIRED TO CEASE AND DESIST FROM A VIOLATION CHARGED MAY
SEEK REVIEW IN THE CIRCUIT COURT OF APPEALS, PRAYING THAT THE ORDER BE
SET ASIDE.  THE PROVISIONS OF THE ACT OF JUNE 19, 1936, SHOW CLEARLY
THAT THE ORDERS OF THE COMMISSION ENTERED BEFORE ITS PASSAGE ARE TO
REMAIN IN EFFECT.  SECTION 2 OF THAT ACT PROVIDES THAT NOTHING THEREIN
CONTAINED SHALL "AFFECT RIGHTS OF ACTION ARISING, OR LITIGATION
PENDING, OR ORDERS OF THE FEDERAL TRADE COMMISSION ISSUED AND IN EFFECT
OR PENDING ON REVIEW, BASED ON SECTION 2 OF SAID ACT OF OCTOBER 15,
1914, PRIOR TO THE EFFECTIVE DATE OF THIS AMENDATORY ACT." 

DISCONTINUANCE OF THE PRACTICE WHICH THE COMMISSION FOUND TO
CONSTITUTE A VIOLATION OF THE ACT DID NOT RENDER THE CONTROVERSY MOOT. 
UNITED STATES V. TRANS-MISSOURI FREIGHT ASSN., 166 U.S. 290, 309, 310;
SOUTHERN PACIFIC CO. V. INTERSTATE COMMERCE COMMISSION, 219 U.S. 433,
452; SOUTHERN PACIFIC TERMINAL CO. V. INTERSTATE COMMERCE COMMISSION,
219 U.S. 498, 514-516; NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA
GREYHOUND LINES, 303 U.S. 261; GUARANTEE VETERINARY CO. V. FEDERAL
TRADE COMMISSION, 285 F. 853, 859, 860; CHAMBER OF COMMERCE V. FEDERAL
TRADE COMMISSION, 13 F.2D 673, 686, 687.  THE COMMISSION, RECITING ITS
FINDINGS AND THE CONCLUSION THAT RESPONDENT HAD VIOLATED THE ACT,
REQUIRED RESPONDENT TO CEASE AND DESIST FROM THE PARTICULAR
DISCRIMINATIONS WHICH THE ORDER DESCRIBED.  THAT IS A CONTINUING
ORDER.  ITS EFFICACY, IF VALID, WAS NOT AFFECTED BY THE SUBSEQUENT
PASSAGE OR THE PROVISIONS OF THE AMENDATORY ACT.  AS A CONTINUING
ORDER, THE COMMISSION MAY TAKE PROCEEDINGS FOR ITS ENFORCEMENT IF IT IS
DISOBEYED.  BUT UNDER THE STATUTE RESPONDENT WAS ENTITLED TO SEEK
REVIEW OF THE ORDER AND TO HAVE IT SET ASIDE IF FOUND TO BE INVALID. 
THE QUESTION WHICH BOTH PARTIES SOUGHT TO HAVE THE CIRCUIT COURT OF
APPEALS DECIDE WAS WHETHER RESPONDENT'S CONDUCT WAS A VIOLATION OF THE
ORIGINAL STATUTE.  UPON THE CONCLUSION THAT IT WAS SUCH A VIOLATION,
THE COMMISSION BASED ITS ORDER.  NEITHER THE TRANSACTIONS SUBSEQUENT TO
THAT ORDER NOR THE PASSAGE OF THE AMENDATORY ACT DEPRIVED THE
RESPONDENT OF ITS RIGHT TO CHALLENGE THE ORDER AND TO HAVE ITS VALIDITY
DETERMINED, OR THE COMMISSION OF ITS RIGHT TO HAVE ITS ORDER MAINTAINED
IF VALIDLY MADE. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE CAUSE
IS REMANDED TO THAT COURT FOR A DETERMINATION OF THE MERITS. 
REVERSED. 

FN1  THAT PROVISO, IN THE ORIGINAL ACT, WAS AS FOLLOWS: 

"PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL PREVENT DISCRIMINATION
IN PRICE BETWEEN PURCHASERS OF COMMODITIES ON ACCOUNT OF DIFFERENCES IN
THE GRADE, QUALITY, OR QUANTITY OF THE COMMODITIES SOLD, OR THAT MAKES
ONLY DUE ALLOWANCE FOR DIFFERENCE IN THE COST OF SELLING OR
TRANSPORTATION, OR DISCRIMINATION IN PRICE IN THE SAME OR DIFFERENT
COMMUNITIES MADE IN GOOD FAITH TO MEET COMPETITION; ...  " 

MR. JUSTICE STONE, MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO
PART IN THE CONSIDERATION AND DECISION OF THIS CASE. 
..END :






N.Y. LIFE INS. CO. V. JACKSON, 304 U.S. 261 


NO. 869.  DECIDED MAY 16, 1938.  - CERTIORARI GRANTED - 94 F.2D 288,
VACATED. 


QUESTIONS OF THE CONSTRUCTION OF AN INSURANCE POLICY ARE TO BE DECIDED
BY THE FEDERAL COURTS IN ACCORDANCE WITH THE APPLICABLE PRINCIPLES OF
STATE LAW.  ERIE RAILROAD CO. V. TOMPKINS, ANTE, P. 64. 

NEW YORK LIFE INSURANCE CO. V. JACKSON ET AL. 

PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE SEVENTH CIRCUIT. 

PETITION FOR CERTIORARI TO REVIEW A JUDGMENT ENFORCING AN INSURANCE
POLICY, ON A CROSS BILL, IN A SUIT TO SET IT ASIDE. 

PER CURIAM. 

THIS SUIT WAS BROUGHT BY PETITIONER, NEW YORK LIFE INSURANCE COMPANY,
TO CANCEL THE REINSTATEMENT OF AN INSURANCE POLICY UPON THE GROUND THAT
IT WAS OBTAINED BY FRAUD.  THE DEFENDANTS, THE INSURED AND THE
BENEFICIARY, DENIED THE RESPONSIBILITY OF THE INSURED FOR ANY
MISREPRESENTATIONS BY REASON OF HIS MENTAL INCAPACITY AT THE TIME. 
THEY ALSO FILED A CROSS BILL SEEKING THE PAYMENT OF THE MONTHLY
DISABILITY BENEFITS FOR WHICH THE POLICY PROVIDED.  DECREE WAS RENDERED
IN FAVOR OF DEFENDANTS ON THEIR CROSS BILL.  THE DECREE DECLARED VOID
THE REINSTATEMENT OF THE POLICY BUT HELD IT TO BE IN FULL FORCE FROM
THE DATE OF ITS ISSUE.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  94 F.2D
288. 

THE STIPULATION OF FACTS STATED THAT THE INSURED AT THE TIME OF THE
ISSUE OF THE POLICY IN 1927 WAS A RESIDENT OF MISSOURI AND THAT THE
POLICY WAS DELIVERED TO THE INSURED IN THAT STATE.  FINDINGS OF THE
DISTRICT COURT FOLLOWED THE STIPULATION. 

THE CIRCUIT COURT OF APPEALS CONSIDERED THE QUESTION WHETHER UNDER
THE PROVISIONS OF THE POLICY THE INSURER WAS LIABLE FOR DISABILITY
BENEFITS TO THE INSURED WHO BECAME TOTALLY AND PERMANENTLY DISABLED
DURING THE PERIOD OF GRACE FOLLOWING THE DATE ON WHICH A SEMI-ANNUAL
PREMIUM PAYMENT FELL DUE WHERE THE PREMIUM WAS NOT PAID UNTIL AFTER THE
EXPIRATION OF THE PERIOD OF GRACE.  THE COURT CONSIDERED THE QUESTION
AS ONE OF GENERAL LAW.  ITS DECISION SHOULD HAVE BEEN MADE ACCORDING TO
THE APPLICABLE PRINCIPLES OF THE STATE LAW WHICH GOVERNED THE
INTERPRETATION OF THE POLICY.  ERIE R. CO. V. TOMPKINS, ANTE, P. 64;
RUHLIN V. NEW YORK LIFE INSURANCE CO., ANTE, P. 202. 

CERTIORARI IS GRANTED, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
IS VACATED, AND THE CAUSE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  JUDGMENT VACATED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :




















ROSENTHAL V. N.Y. LIFE INS. CO., 304 U.S. 263 


NO. 924.  DECIDED MAY 16, 1938.  - CERTIORARI GRANTED - 94 F.2D 675,
VACATED. 


QUESTIONS CONCERNING REINSTATEMENT, LAPSE, CONTESTABILITY AND
EXTENSION OF INSURANCE POLICIES ARE TO BE DECIDED BY THE FEDERAL COURTS
IN ACCORDANCE WITH THE APPLICABLE STATE LAW.  ERIE RAILROAD V.
TOMPKINS, ANTE, P. 64. 

ROSENTHAL V. NEW YORK LIFE INSURANCE CO. 

PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE EIGHTH CIRCUIT. 

PETITION FOR CERTIORARI TO REVIEW AFFIRMANCE OF A DECREE CANCELING
INSURANCE REINSTATEMENTS FOR FRAUD AND DISMISSING COUNTERCLAIMS. 

PER CURIAM. 

RESPONDENT, NEW YORK LIFE INSURANCE COMPANY, BROUGHT THIS SUIT TO
CANCEL TWO REINSTATEMENTS OF AN INSURANCE POLICY UPON THE GROUND THAT
THEY WERE FRAUDULENTLY PROCURED.  THE CIRCUIT COURT OF APPEALS,
AFFIRMING WITH MODIFICATION A DECREE OF THE DISTRICT COURT, HELD THAT
THE AGREEMENT BY WHICH A LAPSED POLICY IS REINSTATED IS A NEW
AGREEMENT, AS REGARDS THE EFFECT OF THE INCONTESTABLE CLAUSE IN THE
POLICY, AND THAT CLAUSE RUNS FROM THE DATE OF THE REINSTATEMENT WHERE
THE DEFENSE IS FRAUD IN ITS PROCUREMENT; AND, FURTHER, THAT THE
EXTENDED INSURANCE UNDER THE POLICY IN QUESTION WAS TO BE CALCULATED
FROM THE ANNIVERSARY DATE OF THE ISSUE OF THE POLICY AND NOT FROM THE
ANNIVERSARY DATE OF THE PAYMENT OF THE FIRST PREMIUM.  94 F.2D 675. 

THE DISTRICT COURT FOUND THAT THE POLICY WAS ISSUED UPON THE JOINT
LIVES OF RESIDENTS OF MISSOURI AND WAS APPLIED FOR AND DELIVERED TO THE
INSURED IN THAT STATE.  THE CIRCUIT COURT OF APPEALS DECIDED THE
QUESTIONS, AS ABOVE STATED, AS MATTERS OF GENERAL LAW ACCORDING TO THE
VIEW OF THE COURT AS TO THE WEIGHT OF AUTHORITY.  PETITIONER SOUGHT A
REHEARING UPON THE GROUND, AMONG OTHERS, THAT THE INTERPRETATION OF THE
POLICY WAS GOVERNED BY THE LAW OF MISSOURI.  REHEARING WAS DENIED. 

WHILE RESPONDENT CONTENDS THAT THE DECISION BELOW IS NOT IN CONFLICT
WITH THE LOCAL LAW, IT IS NOT NECESSARY FOR US TO DETERMINE THAT
QUESTION.  IT IS ENOUGH TO SAY THAT THE QUESTIONS TO BE DECIDED ARE
THOSE OF STATE LAW AND SHOULD HAVE BEEN DETERMINED ACCORDING TO THE
DECISIONS OF THE STATE COURT.  ERIE R. CO. V. TOMPKINS, ANTE, P. 64;
RUHLIN V. NEW YORK LIFE INSURANCE CO., ANTE, P. 202. 

CERTIORARI IS GRANTED, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
IS VACATED, AND THE CAUSE IS REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  JUDGMENT VACATED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :




















LANG V. COMMISSIONER, 304 U.S. 264 


NO. 919.  ARGUED APRIL 28, 1938.  - DECIDED MAY 16, 1938. 


1.  UNDER SEC. 301(G) REVENUE ACT, 1926, AND T.R. 70, ARTS. 25 AND 28,
PROMULGATED THEREUNDER, ONLY ONE-HALF OF THE INSURANCE (IN EXCESS OF
THE $40,000 EXEMPTION) COLLECTED ON POLICIES ISSUED ON THE LIFE OF A
DECEDENT AFTER HIS MARRIAGE AND PAYABLE TO HIS WIFE, IS TO BE RECKONED
AS PART OF HIS GROSS ESTATE, WHERE THE MARRIAGE WAS GOVERNED BY THE
COMMUNITY LAW OF THE STATE OF WASHINGTON AND ALL OF THE PREMIUMS WERE
PAID FROM THE COMMUNITY PROPERTY.  P. 267. 

2.  THE RULING IS THE SAME, WHERE THE FACTS ARE AS ABOVE STATED
EXCEPT THAT THE BENEFICIARIES OF THE POLICIES WERE THE CHILDREN OF THE
MARRIAGE.  ID. 

3.  BUT WHERE THE POLICY WAS ISSUED BEFORE THE MARRIAGE, AND THE
PREMIUMS WERE PAID IN PART FROM THE HUSBAND'S FUNDS AND IN PART FROM
COMMUNITY FUNDS, THE WIFE BEING THE BENEFICIARY NAMED IN THE POLICY,
THE AMOUNT TO BE RECKONED AS PART OF THE HUSBAND'S GROSS ESTATE, IS THE
AMOUNT COLLECTED DIMINISHED BY ONE-HALF OF THAT PROPORTION OF IT WHICH
THE PREMIUMS SATISFIED WITH COMMUNITY FUNDS BEAR TO ALL PREMIUMS PAID. 
ID. 

4.  THE DEFINITION IN T.R. 70, ARTS. 25 AND 28, OF THE EXPRESSION
"POLICIES TAKEN OUT BY THE DECEDENT UPON HIS OWN LIFE," FOUND IN THE
REVENUE ACT OF 1926, HAVING BEEN CONTAINED IN EARLIER REGULATIONS UNDER
EARLIER REVENUE ACTS USING THE SAME EXPRESSION, MUST BE TREATED
(NOTHING ELSE APPEARING) AS APPROVED BY CONGRESS.  P. 268. 

LANG, EXECUTOR, ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

RESPONSE TO QUESTIONS CERTIFIED IN RELATION TO AN ESTATE TAX
ASSESSMENT UPHELD BY THE BOARD OF TAX APPEALS, 34 B.T.A. 337, AND ON
REVIEW BY THE COURT BELOW. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS HAS CERTIFIED PROPOSITIONS OF LAW
CONCERNING WHICH INSTRUCTIONS ARE DESIRED FOR DECISION OF A PENDING
CAUSE.  U.S.C., TITLE 28, SEC. 346. 

IN 1905 JULIUS C. LANG MARRIED IN THE STATE OF WASHINGTON, WHERE
COMMUNITY PROPERTY LAWS HAVE LONG OBTAINED, AND BOTH PARTIES CONTINUED
TO BE DOMICILED THERE UNTIL HE DIED IN 1929.  AT HIS DEATH SEVENTEEN
POLICIES OF INSURANCE UPON HIS LIFE - TOTALING ABOVE $200,000.00 - WERE
IN FORCE.  EACH POLICY REQUIRED ADVANCED PAYMENT OF ONE PREMIUM. 
FOURTEEN SPECIFIED THE WIFE AS SOLE BENEFICIARY; CHILDREN WERE THE
BENEFICIARIES IN THREE.  THREE OF THOSE PAYABLE TO THE WIFE WERE
OBTAINED BY THE ASSURED PRIOR TO MARRIAGE AND EARLY PREMIUM PAYMENTS
UPON THEM CAME FROM HIS SEPARATE PROPERTY; LATER ONES FROM COMMUNITY
FUNDS.  APPLICATION FOR FOURTEEN POLICIES FOLLOWED THE MARRIAGE AND ALL
PREMIUMS THEREON WERE PAID FROM COMMUNITY FUNDS. 

THE COMMISSIONER OF INTERNAL REVENUE RULED THAT UNDER SEC. 302(G),
REVENUE ACT 1926, C. 27, 44 STAT. 9, THE ENTIRE PROCEEDS FROM ALL
POLICIES SHOULD BE RECKONED AS PART OF THE ASSURED'S GROSS ESTATE
SUBJECT TO THE PERMITTED EXEMPTION OF $40,000, AND MADE AN ASSESSMENT
ACCORDINGLY.  THE BOARD OF TAX APPEALS AFFIRMED. 

THE EXEMPTION IS NOT CONTROVERTED AND BY ADMISSION EACH POLICY
PERMITTED THE ASSURED TO CHANGE THE BENEFICIARY.  THE POINT FOR
CONSIDERATION IS WHETHER ALL OR ANY PORTION OF THE PROCEEDS OF A
POLICY, PREMIUMS ON WHICH WERE PAID OUT OF COMMUNITY FUNDS, MUST BE
TREATED AS PART OF THE DECEDENT'S GROSS ESTATE. 

THE COURT BELOW CONCLUDED THAT THE LAWS OF WASHINGTON ESTABLISH A
COMMUNITY BETWEEN SPOUSES WHICH IS A SEPARATE ENTITY, "JUST AS A
CORPORATION OR AN ASSOCIATION," AND THAT LIFE INSURANCE PURCHASED WITH
ITS FUNDS IS COMMUNITY PROPERTY WHOSE CHARACTER THE HUSBAND CANNOT
DEFEAT THROUGH CHANGE OF BENEFICIARY. 

ACCEPTING AS CORRECT, FOR PRESENT PURPOSES, THIS CONSTRUCTION OF THE
LOCAL LAW, ALSO TREATING THE FACTS DISCLOSED BY THE CERTIFICATE AS THE
ESSENTIAL ONES, WE COME TO CONSIDER THE QUESTIONS SUBMITTED FOR
INSTRUCTIONS WHICH ARE RESTATED IN ORDER MORE DEFINITELY TO INDICATE
OUR UNDERSTANDING OF THEIR SIGNIFICANCE. 

THE CONSTRUCTION OF THE LOCAL LAW APPROVED BELOW IS CERTAINLY A
TENABLE ONE AND FINDS SUPPORT IN GRAHAM V. COMMISSIONER, 95 F.2D 174;
OCCIDENTAL LIFE CO. V. POWERS, 192 WASH. 475; POE V. SEABORN, 282 U.S.
101, 113. 

OCCASION FOR THE CERTIFICATE DID NOT ARISE FROM DOUBTS RELATING TO
THE MEANING OF THE COMMUNITY PROPERTY LAWS OF WASHINGTON, BUT FROM
UNCERTAINTY CONCERNING THE APPLICATION OF THE 1926 REVENUE ACT TO AN
ESTATE UNDER ADMINISTRATION IN THAT STATE.  THE COURT WAS PERPLEXED BY
BANK OF AMERICA V. COMMISSIONER OF INTERNAL REVENUE, 90 F.2D 981, 983,
WHICH AFFIRMED THAT THE OPERATION OF THAT ACT IS NOT DEPENDENT UPON
LOCAL LAW AND "THEREFORE WHATEVER THE LOCAL LAW MAY BE WE BELIEVE IT TO
BE IMMATERIAL."  THIS STATEMENT IS NOT ACCURATE AND CONFLICTS WITH WHAT
WE HAVE SAID.  POE V. SEABORN, 282 U.S. 101, 111, 112; BLAIR V.
COMMISSIONER, 300 U.S. 5, 9, 10. 

1.  MUST THE TOTAL OR ONLY ONE-HALF OF THE PROCEEDS COLLECTED UNDER
THE INSURANCE POLICIES ISSUED AFTER MARRIAGE ON THE DECEASED HUSBAND'S
LIFE BE RECKONED AS PART OF HIS GROSS ESTATE, THE WIFE BEING SOLE
BENEFICIARY AND ALL PREMIUMS HAVING BEEN PAID FROM COMMUNITY FUNDS?  TO
THIS WE ANSWER, ONLY ONE-HALF. 

2.  MUST THE TOTAL PROCEEDS OF THE POLICY UPON A DECEDENT'S LIFE,
TAKEN OUT AFTER MARRIAGE, CHILDREN BEING THE SOLE BENEFICIARIES, AND
ALL PREMIUMS HAVING BEEN PAID FROM COMMUNITY FUNDS, BE RECKONED AS PART
OF HIS GROSS ESTATE; OR, IN THE CIRCUMSTANCES, IS ONLY ONE-HALF TO BE
INCLUDED?  TO THIS WE REPLY, ONLY ONE-HALF SHOULD BE INCLUDED. 

3.  MUST ALL PROCEEDS OF THE POLICIES ISSUED BEFORE MARRIAGE UPON THE
DECEASED HUSBAND'S LIFE BE RECKONED AS PART OF HIS GROSS ESTATE, THE
WIFE BEING SOLE BENEFICIARY, THE FIRST PREMIUM HAVING BEEN PAID FROM
HIS SEPARATE FUNDS, AND ALL SUBSEQUENT ONES FROM COMMUNITY FUNDS; OR,
IN THE CIRCUMSTANCES, IS THE TOTAL RECEIVED UNDER THE POLICY REDUCED BY
ONE-HALF OF THAT PROPORTION OF SUCH TOTAL WHICH PREMIUMS SATISFIED WITH
COMMUNITY FUNDS BEAR TO ALL PREMIUMS PAID, THE AMOUNT TO BE REGARDED AS
BELONGING TO THE GROSS ESTATE?  TO THIS WE REPLY, ONLY THE TOTAL
PROCEEDS LESS ONE-HALF OF THE INDICATED PROPORTION BECOMES PART OF THE
GROSS ESTATE. 

OF THE NET ESTATE OF EVERY DECEDENT, ETC.  AND SEC. 302 PROVIDES - 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR
PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED - 

     .         .         .         .         . 

"(G)  TO THE EXTENT OF THE AMOUNT RECEIVABLE BY THE EXECUTOR AS
INSURANCE UNDER POLICIES TAKEN OUT BY THE DECEDENT UPON HIS OWN LIFE;
AND TO THE EXTENT OF THE EXCESS OVER $40,000 OF THE AMOUNT RECEIVABLE
BY ALL OTHER BENEFICIARIES AS INSURANCE UNDER POLICIES TAKEN OUT BY THE
DECEDENT UPON HIS OWN LIFE." 

THE REVENUE ACTS OF 1918, 1921 AND 1924 CONTAIN SIMILAR PROVISIONS
RELATIVE TO "POLICIES TAKEN OUT BY THE DECEDENT UPON HIS OWN LIFE." 

TREASURY REGULATIONS 37 PROMULGATED UNDER THE REVENUE ACT OF 1918
PROVIDE - 

"ART. 32.  ...  THE TERM 'INSURANCE' REFERS TO LIFE INSURANCE OF
EVERY DESCRIPTION  ... INSURANCE IS DEEMED TO BE TAKEN OUT BY THE
DECEDENT IN ALL CASES WHERE HE PAYS THE PREMIUMS, EITHER DIRECTLY OR
INDIRECTLY, WHETHER OR NOT HE MAKES THE APPLICATION.  ON THE OTHER
HAND, THE INSURANCE SHOULD NOT BE INCLUDED IN THE GROSS ESTATE, EVEN
THOUGH THE APPLICATION IS MADE BY THE DECEDENT, WHERE THE PREMIUMS ARE
ACTUALLY PAID BY SOME OTHER PERSON OR CORPORATION, AND NOT OUT OF FUNDS
BELONGING TO, OR ADVANCED BY, THE DECEDENT.  ..."  AND THERE ARE
SIMILAR PROVISIONS IN TREASURY REGULATIONS 63, ART. 27, PROMULGATED
UNDER 1921 REVENUE ACT. 

TREASURY REGULATIONS 68 PROMULGATED UNDER THE REVENUE ACT 1924 - 

"ART. 25.  ... 

"THE TERM 'INSURANCE' REFERS TO LIFE INSURANCE OF EVERY DESCRIPTION
...  INSURANCE IS DEEMED TO BE TAKEN OUT BY THE DECEDENT IN ALL CASES
WHERE HE PAYS ALL THE PREMIUMS, EITHER DIRECTLY OR INDIRECTLY, WHETHER
OR NOT BE MAKES THE APPLICATION.  ON THE OTHER HAND, THE INSURANCE IS
NOT DEEMED TO BE TAKEN OUT BY THE DECEDENT, EVEN THOUGH THE APPLICATION
IS MADE BY HIM, WHERE ALL THE PREMIUMS ARE ACTUALLY PAID BY THE
BENEFICIARY.  WHERE A PORTION OF THE PREMIUMS WERE PAID BY THE
BENEFICIARY AND THE REMAINING PORTION BY THE DECEDENT THE INSURANCE
WILL BE DEEMED TO HAVE BEEN TAKEN OUT BY THE LATTER IN THE PROPORTION
THAT THE PREMIUMS PAID BY HIM BEAR TO THE TOTAL OF PREMIUMS PAID." 

"ART. 28.  THE AMOUNT TO BE RETURNED WHERE THE POLICY IS PAYABLE TO
OR FOR THE BENEFIT OF THE ESTATE IS THE AMOUNT RECEIVABLE.  WHERE THE
PROCEEDS OF A POLICY ARE PAYABLE TO A BENEFICIARY OTHER THAN TO OR FOR
THE BENEFIT OF THE ESTATE, AND ALL THE PREMIUMS WERE PAID BY THE
DECEDENT, THE AMOUNT TO BE LISTED ON SCHEDULE C OF THE RETURN IS THE
FULL AMOUNT RECEIVABLE, BUT WHERE THE PROCEEDS ARE SO PAYABLE AND ONLY
A PORTION OF THE PREMIUMS WERE PAID BY THE DECEDENT, THE AMOUNT TO BE
LISTED ON SUCH SCHEDULE IS THAT PROPORTION OF THE INSURANCE RECEIVABLE
WHICH THE PREMIUMS PAID BY THE DECEDENT BEARS TO THE TOTAL PREMIUMS
PAID.  ..."  ARTS. 25 AND 28, TREASURY REGULATIONS 70, PROMULGATED
UNDER REVENUE ACT 1926, CONTAIN PROVISIONS IDENTICAL WITH THOSE JUST
QUOTED. 

TREASURY REGULATIONS 70 WERE IN FORCE WHEN LANG DIED AND ARE
APPLICABLE TO HIS ESTATE.  IT IS UNNECESSARY FOR US TO CONSIDER THE
MEANING, VALIDITY OR EFFECT OF THE CHANGES INTRODUCED BY REGULATIONS
80. 

ARTICLES 25 AND 28 OF REGULATIONS 70 DEFINE THE WORDS "POLICIES TAKEN
OUT BY THE DECEDENT UPON HIS OWN LIFE."  EARLIER REGULATIONS GAVE THE
SAME DEFINITION.  NOTHING ELSE APPEARING, IT MUST BE TREATED AS
APPROVED BY CONGRESS.  HELVERING V. BLISS, 293 U.S. 144, 151.  COUNSEL
FOR THE COMMISSIONER SUGGEST THAT IT IS AT VARIANCE WITH THE STATUTE,
UNREASONABLE AND WITHOUT EFFECT; BUT WE THINK THIS OBJECTION IS CLEARLY
UNTENABLE. 

UNDER THE COMMUNITY PROPERTY STATUTES OF WASHINGTON, AS INTERPRETED
BELOW, ONE-HALF OF THE AMOUNTS OF COMMUNITY FUNDS APPLIED TO PAYMENT OF
PREMIUMS WAS PROPERTY OF THE WIFE.  TO THAT EXTENT SHE PAID THESE
PREMIUMS.  WHERE SHE IS THE BENEFICIARY, UNDER THE WORDS OF THE
REGULATIONS SHE BECAME ENTITLED TO THE PROCEEDS OF THE POLICY IN
PROPORTION TO THE AMOUNT SO PAID. 

WHERE CHILDREN WERE NAMED BENEFICIARIES AND PREMIUMS WERE PAID FROM
COMMUNITY FUNDS THE SITUATION IS NOT WITHIN THE PRECISE WORDS OF THE
REGULATIONS; BUT THE RATHER OBVIOUS REASON UNDERLYING THE DEFINITION OF
WHAT CONSTITUTES A POLICY "TAKEN OUT BY THE ASSURED" SHOULD BE
RESPECTED.  IN THE ABSENCE OF A CLEAR DECLARATION IT CANNOT BE ASSUMED
THAT CONGRESS INTENDED INSURANCE BOUGHT AND PAID FOR WITH THE FUNDS OF
ANOTHER THAN THE INSURED AND NOT PAYABLE TO THE LATTER'S ESTATE, SHOULD
BE RECKONED AS PART OF SUCH ESTATE FOR PURPOSES OF TAXATION.  SEE
IGLEHART V. COMMISSIONER, 77 F.2D 704, 711. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















HEINER V. MELLON, 304 U.S. 271 


NOS. 144 AND 145.  ARGUED MARCH 8, 1938.  - DECIDED MAY 16, 1938.  - 89
F.2D 141, REVERSED. 


THE STOCK AND BUSINESS OF TWO CORPORATIONS WERE TAKEN OVER BY TWO
PARTNERSHIPS, FORMED BY THE THREE STOCKHOLDERS, FOR THE PURPOSE OF
LIQUIDATION.  ONE OF THE PARTNERS DIED IN 1919, BUT THE LIQUIDATION WAS
CARRIED ON BY THE SURVIVORS AS THERETOFORE.  HELD: 

1.  THAT NET PROFITS MADE IN 1920 IN DISPOSING OF PARTNERSHIP ASSETS
WERE TAXABLE, UNDER REVENUE ACT, 1918, SEC. 218(A), TO THE SURVIVING
PARTNERS TO THE EXTENT OF THEIR DISTRIBUTIVE SHARES.  P. 274. 

THE INCOME TAX SYSTEM IS BASED ON ANNUAL ACCOUNTING.  THE FACT THAT
IT COULD NOT BE KNOWN UNTIL A LATER YEAR, WHEN THE LIQUIDATION WAS
COMPLETE, WHETHER THE ENTERPRISE HAD BEEN PROFITABLE, IS OF NO LEGAL
SIGNIFICANCE. 

2.  THE FACT THAT THE PARTNERSHIP HAD BEEN DISSOLVED BY THE DEATH DID
NOT AFFECT THIS TAX LIABILITY OF THE SURVIVING PARTNERS.  P. 277. 

UNDER THE PENNSYLVANIA UNIFORM PARTNERSHIP ACT, WHICH WAS APPLICABLE,
ON DISSOLUTION THE PARTNERSHIP IS NOT TERMINATED, BUT CONTINUES UNTIL
THE WINDING UP OF THE PARTNERSHIP AFFAIRS IS COMPLETED. 

3.  ART. 1570, T.R. 45, DOES NOT PROVIDE THAT DISSOLUTION CAPITALIZES
ALL INTEREST OF THE PARTNER IN FUTURE PARTNERSHIP PROFITS; IT DEALS
ONLY WITH THE DETERMINATION OF A PARTNER'S GAIN OR LOSS ON HIS
INVESTMENT WHEN HE COMPLETELY SEVERS HIS CONNECTION WITH THE
PARTNERSHIP AND ITS ASSETS.  P. 277. 

4.  THE DISSOLUTION DID NOT MAKE THE SURVIVING PARTNERS TRUSTEES
TAXABLE ONLY AS FIDUCIARIES UNDER REVENUE ACT, 1918, SEC. 219.  P.
278. 

THE FACT THAT THEY MAY BE SO DENOMINATED BY THE LAW OF PENNSYLVANIA
IS NOT CONCLUSIVE.  IN THE INTERPRETATION OF THE WORDS USED IN A
FEDERAL REVENUE ACT, LOCAL LAW IS NOT CONTROLLING. 

5.  IN SEC. 218(A) OF THE REVENUE ACT OF 1918 THE TERM "DISTRIBUTIVE
SHARE" DOES NOT MEAN THE SHARE CURRENTLY DISTRIBUTABLE UNDER THE STATE
LAW, BUT MEANS THE PROPORTIONATE SHARE OF THE PARTNER IN THE NET INCOME
OF THE PARTNERSHIP.  P. 280. 

HEINER, FORMER COLLECTOR OF INTERNAL REVENUE, V. MELLON ET AL.,
EXECUTORS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 302 U.S. 672, TO REVIEW THE AFFIRMANCE OF RECOVERIES IN
TWO ACTIONS AGAINST A FORMER COLLECTOR OF INTERNAL REVENUE BY TAXPAYERS
WHO HAD PAID DEFICIENCY INCOME TAX ASSESSMENTS UNDER PROTEST. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THESE CASES, TRIED BELOW IN THE FEDERAL COURT FOR WESTERN
PENNSYLVANIA AND ARGUED TOGETHER HERE, ARISE FROM THE SAME FACTS AND
PRESENT THE SAME QUESTIONS OF LAW.  EACH ACTION WAS BROUGHT AGAINST D.
B. HEINER, AS FORMER COLLECTOR OF INTERNAL REVENUE AND INDIVIDUALLY, TO
RECOVER AN AMOUNT PAID UNDER PROTEST BY THE TAXPAYER IN 1927 UPON A
DEFICIENCY ASSESSMENT OF HIS 1920 INCOME TAX.  THE AMOUNTS TAXED AS
ADDITIONAL INCOME WERE THE DISTRIBUTIVE SHARES OF CERTAIN PROFITS
ALLEGED TO HAVE BEEN EARNED BY EACH IN 1920 AS A PARTNER IN TWO FIRMS. 
DUE DEMAND FOR A REFUND WAS MADE.  IN NO. 144 THE TAXPAYER WAS A. W.
MELLON; IN NO. 145, R. B. MELLON.  BOTH HAVING DIED, THE SUITS ARE BY
THEIR EXECUTORS.  IN NO. 144, THE DISTRICT COURT ENTERED JUDGMENT FOR
$202,502.22 WITH INTEREST (14 F.SUPP.  424); IN NO. 145 FOR $187,787.17
WITH INTEREST.  THESE JUDGMENTS WERE AFFIRMED BY THE COURT OF APPEALS. 
89 F.2D 141.  CERTIORARI WAS GRANTED BECAUSE OF ALLEGED CONFLICT AS TO
APPLICABLE RULES OF LAW IMPORTANT IN THE ADMINISTRATION OF THE REVENUE
LAWS. 

THERE IS NO DISPUTE AS TO THE RELEVANT FACTS.  PRIOR TO DECEMBER 12,
1918, A. W. MELLON, R. B. MELLON AND H. C. FRICK EACH OWNED ONE-THIRD
OF THE ENTIRE CAPITAL STOCK OF TWO DISTILLING CORPORATIONS - A.
OVERHOLT & COMPANY AND WEST OVERTON DISTILLING COMPANY.  ON THAT DATE
THOSE THREE INDIVIDUALS FORMED TWO PARTNERSHIPS IN WHICH EACH PARTNER
WAS TO HAVE A ONE-THIRD INTEREST.  IN JANUARY 1919 THEY CAUSED TO BE
TRANSFERRED TO THE PARTNERSHIP CALLED A. OVERHOLT & COMPANY ALL THE
ASSETS OF THE CORPORATION OF THAT NAME; AND TO THE PARTNERSHIP CALLED
WEST OVERTON DISTILLING COMPANY, ALL THE ASSETS OF THAT CORPORATION. 
THESE ASSETS INCLUDED LARGE WHISKEY INVENTORIES IN BONDED WAREHOUSES. 
NEITHER CORPORATION HAD DISTILLED ANY WHISKEY AFTER 1916.  LIQUIDATION
OF THE BUSINESSES OF EACH HAD BEEN STARTED BY THE TWO CORPORATIONS IN
1918; AND THE PARTNERSHIPS HAD BEEN ORGANIZED FOR THE PURPOSE OF
LIQUIDATING THEM.  THE BUSINESS OF EACH PARTNERSHIP IN 1920, HAD, LIKE
ITS BUSINESS IN 1919, CONSISTED IN THE SALE OF WHISKEY CERTIFICATES AND
THE STORAGE, BOTTLING, CASING AND SALE OF THE STOCK OF WHISKEY.  IT WAS
NOT UNTIL 1925 THAT THE ASSETS OF THE PARTNERSHIPS THEN REMAINING WERE
SOLD IN BULK, AND THE PROCEEDS DISTRIBUTED AMONG THOSE ENTITLED
THERETO. 

FRICK DIED DECEMBER 2, 1919; BUT THROUGHOUT 1920 THE BUSINESSES OF A.
OVERHOLT & COMPANY AND OF WEST OVERTON DISTILLING COMPANY WERE
CONDUCTED, AND THEIR BOOKS WERE KEPT, IN THE SAME MANNER AS THE
BUSINESSES HAD BEEN CONDUCTED AND BOOKS HAD BEEN KEPT BY THE
PARTNERSHIPS IN 1919, AND BY THE CORPORATIONS IN 1918.  FOR 1920 THE
PARTNERSHIP RETURNS OF THE TWO CONCERNS DISCLOSED FACTS FROM WHICH IT
APPEARED THAT SUBSTANTIAL GAINS HAD BEEN MADE FROM THE SALE OF
WHISKEY.  BUT THE AMOUNTS WERE NOT REPORTED AS INCOME OF THE
PARTNERSHIPS; AND NEITHER A. W. MELLON NOR R. B. MELLON INCLUDED IN
THEIR INCOME TAX RETURNS FOR 1920 ANY AMOUNT ON ACCOUNT OF THEM.  THE
COMMISSIONER OF INTERNAL REVENUE DETERMINED THAT THESE SUMS WERE
DISTRIBUTIVE PROFITS; THAT THE RETURNS OF TAXABLE INCOME OF A. W.
MELLON AND OF R. B. MELLON FOR THE YEAR 1920 SHOULD HAVE INCLUDED ONE
THIRD OF THE PROFITS IN THAT YEAR OF EACH FIRM FROM THE SALE OF
WHISKEY; AND MADE A DEFICIENCY ASSESSMENT ON A. W. MELLON OF
$190,419.70 AND ON R. B. MELLON OF $175,259.70. 

THE REVENUE ACT OF 1918  FN1  GOVERNS TAXATION OF 1920 INCOME. 
BUSINESS IN PARTNERSHIP SHALL BE LIABLE IN THEIR INDIVIDUAL CAPACITIES
FOR THE INCOME TAX ON PROFITS EARNED THEREIN, AND THAT IN COMPUTING THE
NET INCOME OF EACH PARTNER THERE SHALL BE INCLUDED HIS DISTRIBUTIVE
SHARE, WHETHER DISTRIBUTED OR NOT, OF THE NET INCOME OF THE PARTNERSHIP
FOR THE TAXABLE YEAR.  SECTION 224 PROVIDES THAT THE PARTNERSHIP SHALL
FILE AN INFORMATIONAL RETURN SETTING FORTH THE ITEMS OF ITS GROSS
INCOME, THE DEDUCTIONS ALLOWED AND THE DISTRIBUTIVE SHARE OF NET INCOME
TO WHICH EACH PARTNER IS ENTITLED. 

THE TWO MELLONS FILED THEIR INDIVIDUAL RETURNS FOR 1920, AND ALSO THE
INFORMATIONAL PARTNERSHIP RETURNS FOR THAT YEAR.  WHILE THE MELLONS
CLAIMED THAT THEY WERE NOT TAXABLE ON THEIR SHARES OF THE PROFITS FROM
WHISKEY SOLD IN 1920, THEY RECOGNIZED THAT THEY WERE TAXABLE FOR THEIR
SHARES OF THESE OTHER PROFITS OF THE CONCERNS EARNED IN 1920.  THE
PARTNERSHIP RETURNS IN THE CASE OF EACH CONCERN SHOWED A GAIN ARISING
FROM STORAGE, BOTTLING AND CASING OPERATIONS, SALES OF BARRELS,
INTEREST AND RENTALS.  ONE-THIRD OF EACH OF THESE PROFITS WAS ENTERED
BY EACH OF THE MELLONS IN HIS INDIVIDUAL RETURN AS HIS DISTRIBUTIVE
SHARE OF THE PROFITS OF THE TWO PARTNERSHIPS. 

FIRST.  THE PRIMARY QUESTION FOR DECISION IS WHETHER THE NET PROFITS
MADE BY THE TWO PARTNERSHIPS IN 1920 FROM THE SALES OF WHISKEY WERE IN
THEIR NATURE TAXABLE INCOME.  THROUGHOUT 1920, A. OVERHOLT & COMPANY
AND THE WEST OVERTON DISTILLING COMPANY WERE ENGAGED IN BUSINESS.  THE
MERE FACT THAT THE PURPOSE OF THE PARTNERSHIPS WAS TO LIQUIDATE THE
ASSETS TAKEN OVER FROM THE CORPORATIONS IS NOT OF LEGAL SIGNIFICANCE. 
PROFITS MADE IN THE BUSINESS OF LIQUIDATION ARE TAXABLE IN THE SAME WAY
AND TO THE SAME EXTENT AS IF MADE IN AN EXPANDING BUSINESS.  NOR IS IT
OF LEGAL SIGNIFICANCE THAT THE LIQUIDATION WAS NOT COMPLETED UNTIL 1925
AND THAT UNTIL COMPLETION OF THE LIQUIDATION IT COULD NOT BE KNOWN
WHETHER THE BUSINESS VENTURE, TAKEN AS A WHOLE, HAD BEEN PROFITABLE. 
THE FEDERAL INCOME TAX SYSTEM IS BASED ON AN ANNUAL ACCOUNTING.  FN2
UNDER THAT LAW THE QUESTION WHETHER TAXABLE PROFITS HAVE BEEN MADE IS
DETERMINED ANNUALLY BY THE RESULT OF THE OPERATIONS OF THE YEAR. 

PURCHASING REAL ESTATE, SUBDIVIDING AND SELLING IT IN PARCELS IS, IN
ESSENCE, A LIQUIDATING BUSINESS.  THE CLAIM HAS BEEN REPEATEDLY MADE
THAT NO INCOME WAS REALIZED UNTIL THE INVESTMENT WAS RECOUPED; BUT THE
BOARD OF TAX APPEALS HAS UNIFORMLY HELD IN ACCORD WITH ARTICLE 43 OF
REGULATIONS 45(AND LATER REGULATIONS) THAT THE COST OF THE REAL ESTATE
MUST BE APPORTIONED AMONG ALL THE LOTS, AND INCOME RETURNED UPON THE
SALES IN EACH YEAR, REGARDLESS OF THE NUMBER OF LOTS REMAINING
UNDISPOSED OF AT THE CLOSE OF THE TAX YEAR.  FN3  A LIKE RULE HAS BEEN
APPLIED WHERE THE TAXPAYER HAD PURCHASED PERSONAL PROPERTY IN A BLOCK
AND WAS ENGAGED IN SELLING IT IN PARCELS.  THE CLAIM THAT THERE WAS NO
TAXABLE INCOME UNTIL THE CAPITAL HAD BEEN RETURNED WAS REJECTED.  FN4 

THE FACT THAT IT MIGHT PROVE THAT WHEN THE BUSINESS WAS FULLY
LIQUIDATED THE PROFITS OF 1920 WERE OFFSET BY HEAVY LOSS OF LATER YEARS
IS IMMATERIAL.  LOSSES SUFFERED BY A TAXPAYER IN A LATER YEAR MAY BE
DEDUCTED FROM PROFITS, IF ANY, EARNED BY HIM IN THAT LATER YEAR; BUT
THE TAX ON A YEAR'S INCOME MAY NOT BE WITHHELD BECAUSE LOSSES MAY
THEREAFTER OCCUR.  IF A. OVERHOLT & COMPANY AND WEST OVERTON DISTILLING
COMPANY HAD REMAINED CORPORATIONS THEY WOULD HAVE BEEN OBLIGED TO MAKE
EACH YEAR RETURN OF THE PROFITS MADE THEREIN AND PAY TAXES ANNUALLY
THROUGHOUT THE PERIOD OF LIQUIDATION ALTHOUGH IT MIGHT ULTIMATELY PROVE
THAT THE LOSSES OF THE LATER YEARS EXCEEDED THE PROFITS OF THE EARLIER
ONES.  FN5  LIKEWISE, IF THE CONCERNS HAD EACH BEEN OWNED BY A SINGLE
INDIVIDUAL, THE FACT THAT HIS SOLE BUSINESS WAS LIQUIDATING THE CONCERN
WOULD NOT HAVE RELIEVED HIM FROM PAYING ANNUALLY TAXES ON THE NET
PROFITS.  NO GOOD REASON IS SUGGESTED WHY A DIFFERENT RULE SHOULD APPLY
TO PARTNERSHIPS. 

WE CONCLUDE THAT GAINS FROM THE SALE OF WHISKEY IN 1920 WERE INCOME
OF THAT YEAR.  THE AMOUNT OF THE INCOME WAS DETERMINABLE FROM THE
PARTNERSHIP BOOKS.  SECTION 212(B) OF THE REVENUE ACT OF 1918 PROVIDES
THAT THE NET INCOME SHALL BE COMPUTED "IN ACCORDANCE WITH THE METHOD OF
ACCOUNTING REGULARLY EMPLOYED IN KEEPING THE BOOKS OF" THE TAXPAYER,
AND IT IS NOT SHOWN THAT THE METHOD EMPLOYED CLEARLY FAILED TO REFLECT
NET INCOME. 

SECOND.  THE FACT THAT THE PARTNERSHIPS HAD BEEN DISSOLVED BY FRICK'S
DEATH BEFORE 1920 DOES NOT AFFECT THE LIABILITY OF THE MELLONS AS
SURVIVING PARTNERS FOR INCOME TAXES ON THEIR DISTRIBUTIVE SHARES OF THE
NET PROFITS MADE IN THAT YEAR.  COMPARE ROSSMOORE V. ANDERSON, 1
F.SUPP.  35(S.D.N.Y.), AFFIRMED, 67 F.2D 1009(C.C.A. 2); ROSSMOORE V.
COMMISSIONER, 76 F.2D 520(C.C.A. 2).  THE BUSINESS OF A. OVERHOLT &
COMPANY DID NOT TERMINATE ON FRICK'S DEATH.  ALTHOUGH DISSOLVED, THE
PARTNERSHIPS AND THE BUSINESS CONTINUED, SINCE, AS STATED IN THE
PENNSYLVANIA UNIFORM PARTNERSHIP ACT:  "ON DISSOLUTION THE PARTNERSHIP
IS NOT TERMINATED, BUT CONTINUES UNTIL THE WINDING UP OF THE
PARTNERSHIP AFFAIRS IS COMPLETED."  FN6  THROUGHOUT THE YEAR 1920, THE
BUSINESS OF SELLING STOCK ON HAND AND DERIVING INCOME THEREFROM WAS
CARRIED ON PRECISELY AS IT HAD BEEN THERETOFORE, AND FOR THE SAME
PURPOSE.  ARTICLE 424 OF REGULATIONS 45 RECOGNIZES THAT EVEN IN THE
HANDS OF A RECEIVER A PARTNERSHIP MUST FILE A RETURN. 

THIRD.  THE MELLONS CONTEND, AND THE COURT BELOW HELD, THAT THE
PARTNERS' INTERESTS IN THE PARTNERSHIPS WERE CAPITALIZED UPON
DISSOLUTION, SO THAT UNTIL THE LIQUIDATION RETURNED TO THEM THE COST OF
THEIR INTERESTS, NO TAXABLE INCOME WAS RECEIVED; THAT ARTICLE 1570 OF
REGULATIONS 45 SO PROVIDES; AND THAT THIS DID NOT TAKE PLACE BEFORE
1925.  BUT, AS ALREADY POINTED OUT, TECHNICAL DISSOLUTION DOES NOT
AFFECT THE LIABILITY OF A PARTNER UNDER SEC. 218 FOR TAXES ON HIS
DISTRIBUTIVE SHARE OF THE PARTNERSHIP'S INCOME; AND ARTICLE 1570 DOES
NOT ESTABLISH ANY RULE THAT DISSOLUTION CAPITALIZES THE INTEREST OF A
PARTNER IN FUTURE PARTNERSHIP PROFITS.  THE ARTICLE PROVIDES: 

"WHEN A PARTNER RETIRES FROM A PARTNERSHIP, OR IT IS DISSOLVED, HE
REALIZES A GAIN OR LOSS MEASURED BY THE DIFFERENCE BETWEEN THE PRICE
RECEIVED FOR HIS INTEREST AND THE COST TO HIM OR (IF ACQUIRED PRIOR
THERETO) THE FAIR MARKET VALUE AS OF MARCH 1, 1913, OF HIS INTEREST IN
THE PARTNERSHIP, INCLUDING IN SUCH COST OR VALUE THE AMOUNT OF HIS
SHARE IN ANY UNDISTRIBUTED PARTNERSHIP NET INCOME EARNED SINCE FEBRUARY
28, 1913, ON WHICH INCOME TAX HAS BEEN PAID.  ..." 

THIS ARTICLE IS IN NO WAY INCONSISTENT WITH THE TAXATION OF A PARTNER
ON HIS SHARE OF THE INCOME OF THE PARTNERSHIP EARNED IN A SINGLE YEAR
AFTER DISSOLUTION BUT BEFORE COMPLETION OF LIQUIDATION AND
DISTRIBUTION.  IT DEALS ONLY WITH THE DETERMINATION OF A PARTNER'S GAIN
OR LOSS ON HIS INVESTMENT WHEN HE COMPLETELY SEVERS HIS CONNECTION WITH
THE PARTNERSHIP AND ITS ASSETS.  THE GAIN OR LOSS IS DETERMINED
SUBSTANTIALLY LIKE THAT ON ANY OTHER BUSINESS VENTURE OF THE
INDIVIDUAL, TREATED AS A WHOLE.  ON THE OTHER HAND, THE PROFITS FROM
THE SALE OF WHISKEY IN 1920 WERE CURRENT INCOME OF THE PARTNERSHIP FOR
THAT YEAR, NOT DIFFERENT IN THEIR NATURE FROM THE PROFITS FROM STORAGE,
BOTTLING, CASING, AND SIMILAR OPERATIONS WHICH THE MELLONS RETURNED AS
INCOME.  ARTICLE 1570 DOES NOT DEAL WITH THIS SITUATION. 

FOURTH.  THE MELLONS CONTEND THAT BECAUSE THE PARTNERSHIPS WERE
DISSOLVED BY THE DEATH OF FRICK IN 1919, A. W. MELLON AND R. B. MELLON,
BEING SURVIVING PARTNERS, BECAME BY OPERATION OF LAW LIQUIDATING
TRUSTEES; THAT ANY INCOME EARNED IN 1920 FROM OPERATIONS OF THE
DISSOLVED PARTNERSHIPS WAS INCOME TO THE MELLONS ONLY IN THEIR
FIDUCIARY CAPACITY AS SUCH TRUSTEES; THAT UNDER SEC. 219 OF THE REVENUE
ACT OF 1918 THE TRUST ESTATE WAS A SEPARATE TAXABLE ENTITY; THAT IF ANY
INCOME TAX WAS DUE, IT WAS THEREFORE DUE FROM THE TRUST, AND THAT ITS
ASSESSMENT IS NOW BARRED BY THE STATUTE OF LIMITATIONS. 

WE DO NOT FIND IT NECESSARY TO DETERMINE WHETHER ASSESSMENT OF THE
TAX ON THIS THEORY IS NOW OUTLAWED, OR WHETHER, AS THE COLLECTOR URGES,
RECOVERY IS PRECLUDED IN ANY EVENT UNDER THE DOCTRINE OF STONE V.
WHITE, 301 U.S. 532; FOR WE ARE OF THE OPINION THAT THE MELLONS ARE NOT
TRUSTEES WITHIN THE MEANING OF SEC. 219.  THE FACT THAT THEY MAY BE SO
DENOMINATED BY THE LAW OF PENNSYLVANIA IS NOT CONCLUSIVE.  IT IS WELL
SETTLED THAT IN THE INTERPRETATION OF THE WORDS USED IN A FEDERAL
REVENUE ACT, LOCAL LAW IS NOT CONTROLLING UNLESS THE FEDERAL STATUTE
"BY EXPRESS LANGUAGE OR NECESSARY IMPLICATION, MAKES ITS OWN OPERATION
DEPENDENT UPON STATE LAW."  "THE STATE LAW CREATES LEGAL INTERESTS, BUT
THE FEDERAL STATUTE DETERMINES WHEN AND HOW THEY SHALL BE TAXED." 
BURNET V. HARMEL, 287 U.S. 103, 110.  FN7  WE THINK IT IS CLEAR THAT
UNDER THE CIRCUMSTANCES SET FORTH, THE INCOME EARNED IN 1920 WAS INCOME
OF A PARTNERSHIP "CARRYING ON BUSINESS" WITHIN THE MEANING OF SEC. 218
RATHER THAN OF A TRUST UNDER SEC. 219. 

THE OBLIGATION OF THE MELLONS TO PAY, UNDER THE FEDERAL LAW, TAXES ON
THE PROFITS MADE IN 1920 FROM SALES OF WHISKEY IS IN NO WAY AFFECTED BY
THEIR FIDUCIARY OBLIGATION UNDER THE LAW OF THE STATE TO ACCOUNT TO THE
FRICK ESTATE FOR ITS INTEREST IN THE TWO PARTNERSHIPS BEING
LIQUIDATED.  THE SURVIVING PARTNERS CONTINUED DURING 1920 TO CONDUCT
THE BUSINESS FROM WHICH THEY EARNED PROFITS.  ON SUCH INCOME THE
FEDERAL LAW REQUIRED THAT TAXES BE PAID.  IT DID NOT REQUIRE THAT THE
PAYMENTS BE MADE FROM THE PARTNERSHIP ASSETS.  HOW THE ASSETS SHALL BE
DISPOSED OF, AND WHAT SHALL BE DONE WITH THE PROCEEDS WHEN REALIZED,
ARE MATTERS WHICH MAY BE DETERMINED BY THE LAW OF THE STATE OR BY
AGREEMENT OF THE PARTNERS.  BUT HOWEVER THE ASSETS ARE REQUIRED BY THE
LAW OF THE STATE TO BE DISPOSED OF, OR THE PROCEEDS APPLIED, THE
FEDERAL LAW REQUIRES THAT TAXES BE PAID IF, IN DISPOSING OF THEM WITHIN
THE YEAR THE BUSINESS IS CONDUCTED AND PROFITS ARE MADE.    FIFTH.  THE
MELLONS CONTEND THAT UNDER THE LAW OF PENNSYLVANIA NO DISTRIBUTION OF
PROFITS COULD LAWFULLY HAVE BEEN MADE BY THE SURVIVING PARTNERS AS
LIQUIDATING TRUSTEES UNTIL ALL DEBTS AND LIABILITIES, CONTINGENT OR
OTHERWISE, HAD BEEN PAID OR SATISFIED, AND THE PARTNERS' CAPITAL
RETURNED; AND THAT ALTHOUGH THE BUSINESS OF THE PARTNERSHIPS HAD BEEN
CARRIED ON AFTER DISSOLUTION PRECISELY AS BEFORE, AND THE PARTNERSHIP
ACCOUNTS FOR THE YEAR 1920 SHOWED LARGE PROFITS EARNED, THEIR
RESPECTIVE SHARES OF THEM WERE NOT DISTRIBUTABLE AND COULD NOT BE
DEEMED TAXABLE INCOME OF THE PARTNERS. 

BE INCLUDED IN COMPUTING THE NET INCOME OF EACH PARTNER HIS
DISTRIBUTIVE SHARE, WHETHER DISTRIBUTED OR NOT, OF THE NET INCOME OF
THE PARTNERSHIP FOR THE TAXABLE YEAR.  ..."  IF "DISTRIBUTIVE" MEANT
"CURRENTLY DISTRIBUTABLE UNDER STATE LAW," THE CONTENTIONS MADE BY THE
MELLONS MIGHT HAVE SOME FORCE.  BUT IT DOES NOT.  ARTICLE 322 OF
REGULATIONS 45(AND CORRESPONDING ARTICLES OF SUBSEQUENT REGULATIONS)
DEFINES "DISTRIBUTIVE" AS MEANING "PROPORTIONATE."  COMPARE EARLE V.
COMMISSIONER, 38 F.2D 965, 967-68(C.C.A. 1).  AND SEC. 220 OF THE
REVENUE ACT OF 1918, TAXING TO THE SHAREHOLDERS THE INCOME OF A
CORPORATION IMPROPERLY ACCUMULATING ITS GAINS AND PROFITS FOR THE
PURPOSE OF AVOIDING SURTAX, ASSUMES THAT THE TWO WORDS ARE SYNONYMOUS. 
THE TAX IS THUS IMPOSED UPON THE PARTNER'S PROPORTIONATE SHARE OF THE
NET INCOME OF THE PARTNERSHIP, AND THE FACT THAT IT MAY NOT BE
CURRENTLY DISTRIBUTABLE, WHETHER BY AGREEMENT OF THE PARTIES OR BY
OPERATION OF LAW, IS NOT MATERIAL.  FN8  NO CLAIM IS MADE THAT THE
PROPORTIONATE INTERESTS OF THE SURVIVING PARTNERS WAS IMPROPERLY
DETERMINED BY THE COMMISSIONER. 

SIXTH.  FINALLY, THE MELLONS CONTEND THAT IN 1928 AND 1929 THE
COMMISSIONER DETERMINED THAT NO PROFIT WAS REALIZED UNTIL FINAL
LIQUIDATION OF THE PARTNERSHIPS IN 1925, AND THAT INCOME TAXES FOR THAT
YEAR HAVE BEEN COLLECTED ON THIS THEORY AND NOT YET REFUNDED.  THE
COMMISSIONER'S ALLEGED CHANGE OF POSITION IS NOT HERE IMPORTANT.  IT IS
NOT SHOWN THAT REFUND OF THESE TAXES IS NOW BARRED.  NOR IS IT
NECESSARY FOR US TO CONSIDER THE COST TO THE MELLONS OF THEIR INTEREST
IN THESE PARTNERSHIPS, OR WHETHER THE MELLONS' 1925 INCOME TAXES WERE
ERRONEOUSLY ASSESSED AND COLLECTED, OR WHETHER THE COMMISSIONER
CORRECTLY SETTLED THE TAX LIABILITY OF THE FRICK ESTATE.  NONE OF THESE
QUESTIONS HAS ANY BEARING UPON THE DETERMINATION OF THE CASE BEFORE US.
REVERSED. 

FN1  ACT OF FEBRUARY 24, 1919, C. 18, 40 STAT. 1057. 

FN2  BURNET V. SANFORD & BROOKS CO., 282 U.S. 359, 365; BURNET V.
THOMPSON OIL & GAS CO., 283 U.S. 301, 306; WOOLFORD REALTY CO. V. ROSE,
286 U.S. 319, 326; BROWN V. HELVERING, 291 U.S. 193, 198-99; HELVERING
V. MORGAN'S INC., 293 U.S. 121, 126-127; GUARANTY TRUST CO. V.
COMMISSIONER, 303 U.S. 493, 497-498. 

FN3  J. S. CULLINAN, 5 B.T.A. 996, 19 B.T.A. 930; THOMAS J. AVERY, 11
B.T.A. 958; BRODIE C. NALLE, 19 B.T.A. 427; FREDERIKA SKINNER, 20
B.T.A. 491.  SEE ALSO B. S. ROBERTS, 7 B.T.A. 1162; HANNIBAL MISSOURI
LAND CO., 9 B.T.A. 1072; D. C. CLARKE, 22 B.T.A. 314, 325; BISCAYNE BAY
ISLANDS CO., 23 B.T.A. 731; SEARLES REAL ESTATE TRUST, 25 B.T.A. 1115. 
COMPARE PERKINS V. THOMAS, 86 F.2D 954, 956(C.C.A. 5), AFFIRMED ON
OTHER GROUNDS, 301 U.S. 655; SEE ALSO ELMHURST CEMETERY CO. V.
COMMISSIONER, 300 U.S. 37. 

FN4  SANTA MARIA GAS CO., 10 B.T.A. 1412; AMERICAN INDUSTRIAL CORP.,
20 B.T.A. 188; BANCITALY CORP., 34 B.T.A. 494.  COMPARE WESER BROS.,
INC., 12 B.T.A. 1394; C. H. SWIFT & SONS, INC., 13 B.T.A. 138; DEER
ISLAND LOGGING CO., 14 B.T.A. 1027; O. H. HIMELICK, 32 B.T.A. 792. 

FN5  SEE REGULATIONS 45, ART. 547; TAZEWELL ELECTRIC LIGHT & POWER
CO. V. STROTHER, 84 F.2D 327(C.C.A. 4); NORTHWEST UTILITIES SECURITIES
CORP. V. HELVERING, 67 F.2D 619(C.C.A. 8); FIRST NAT. BANK OF GREELEY
V. UNITED STATES, 86 F.2D 938(C.C.A. 10).  COMPARE BURNET V. LEXINGTON
ICE & COLD STORAGE CO., 62 F.2D 906(C.C.A. 4); TAYLOR OIL & GAS CO. V.
COMMISSIONER, 47 F.2D 108(C.C.A. 5); HELLEBUSH V. COMMISSIONER, 65 F.2D
902(C.C.A. 6); WHITNEY REALTY CO. V. COMMISSIONER, 80 F.2D 429(C.C.A.
6). 

FN6  PA. LAWS 1915, NO. 15, SEC. 30, PA. STAT. ANN. (PURDON, 1930)
TIT. 59, SEC. 92. 

FN7  SEE ALSO BURK-WAGGONER OIL ASSN. V. HOPKINS, 269 U.S. 110, 113,
114; PALMER V. BENDER, 287 U.S. 551, 555-56; THOMAS V. PERKINS, 301
U.S. 655, 659; BIDDLE V. COMMISSIONER, 302 U.S. 573, 582.  COMPARE
CHICAGO BOARD OF TRADE V. JOHNSON, 264 U.S. 1, 8-11; UNITED STATES V.
ROBBINS, 269 U.S. 315, 327-28; CORLISS V. BOWERS, 281 U.S. 376, 378;
TYLER V. UNITED STATES, 281 U.S. 497, 503.  SEE ALSO HART V.
COMMISSIONER, 54 F.2D 848, 851(C.C.A. 1); FIDELITY-PHILADELPHIA TRUST
CO. V. COMMISSIONER, 47 F.2D 36, 38(C.C.A. 3); ROSENBERGER V. MCCAUGHN,
25 F.2D 699(C.C.A. 3); EAGAN V. COMMISSIONER, 43 F.2D 881, 883(C.C.A.
5); FRITZ V. COMMISSIONER, 76 F.2D 460, 461-62(C.C.A. 5). 

FN8  COMPARE EARLE V. COMMISSIONER, 38 F.2D 965(C.C.A. 1); HILL V.
COMMISSIONER, 38 F.2D 165, 168(C.C.A. 1); POPE V. COMMISSIONER, 39 F.2D
420(C.C.A. 1); RUPRECHT V. COMMISSIONER, 39 F.2D 458(C.C.A. 5);
BENEDICT V. PRICE, 38 F.2D 309(E.D.N.Y.); W. FRANK CARTER, 36 B.T.A.
60.  SEE ALSO O.D. 187, 1 C.B. 174. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :















HELVERING V. NATIONAL GROCERY CO., 304 U.S. 282 


NO. 723.  ARGUED APRIL 8, 11, 1938.  - DECIDED MAY 16, 1938.  - 92 F.2D
931, REVERSED. 


CORPORATION, HOWEVER CREATED OR ORGANIZED, IS FORMED OR AVAILED OF FOR
THE PURPOSE OF PREVENTING THE IMPOSITION OF THE SURTAX UPON ITS
SHAREHOLDERS THROUGH THE MEDIUM OF PERMITTING ITS GAINS AND PROFITS TO
ACCUMULATE INSTEAD OF BEING DIVIDED OR DISTRIBUTED, THERE SHALL BE
LEVIED, COLLECTED AND PAID FOR EACH TAXABLE YEAR UPON THE NET INCOME OF
SUCH CORPORATION AN ADDITIONAL TAX EQUAL TO 50 PER CENTUM OF THE AMOUNT
OF SUCH INCOME, AND THAT THE FACT THAT THE GAINS OR PROFITS ARE
PERMITTED TO ACCUMULATE BEYOND THE REASONABLE NEEDS OF THE BUSINESS,
SHALL BE PRIMA FACIE EVIDENCE OF A PURPOSE TO ESCAPE THE SURTAX.  FROM
THE EVIDENCE BEFORE IT, THE BOARD OF TAX APPEALS FOUND THAT THE
RESPONDENT'S ACCUMULATIONS IN A TAXABLE YEAR WERE BEYOND SUCH NEEDS;
THAT THE EVIDENCE DID NOT OVERCOME THE PRESUMPTION, AND THAT THE
CORPORATION WAS AVAILED OF FOR THE INTERDICTED PURPOSE.  THE
CORPORATION HAD BUT ONE STOCKHOLDER, SO THAT RIGHTS OF MINORITY
STOCKHOLDERS WERE NOT INVOLVED.  HELD: 

(1)  THE ACT DOES NOT VIOLATE THE TENTH AMENDMENT BY INTERFERING WITH
THE RIGHT OF THE CORPORATION TO DECLARE OR WITHHOLD DIVIDENDS.  IT
MERELY LAYS THE TAX UPON CORPORATIONS THAT USE THEIR POWERS TO PREVENT
IMPOSITION UPON THEIR STOCKHOLDERS OF THE FEDERAL SURTAXES.  P. 286. 

(2)  THE ACT IS NOT UNCONSTITUTIONAL AS IMPOSING, NOT A TAX UPON
INCOME, BUT A PENALTY TO FORCE DISTRIBUTION OF CORPORATE EARNINGS IN
ORDER TO CREATE A BASIS FOR TAXATION AGAINST STOCKHOLDERS.  P. 288. 

CONGRESS MAY IMPOSE PENALTIES IN PROTECTION OF THE REVENUE. 
HELVERING V. MITCHELL, 303 U.S. 391. 

(3)  THE TAX IS NOT OBJECTIONABLE AS A DIRECT TAX ON A MERE PURPOSE -
A STATE OF MIND.  P. 289. 

IT IS A TAX ON THE INCOME OF THE CORPORATION.  THE EXISTENCE OF THE
DEFINED PURPOSE MERELY DETERMINES THE INCIDENCE OF THE TAX. 

(4)  THE STANDARD PRESCRIBED TO GUIDE THE COMMISSIONER IN ASSESSING,
OR THE CORPORATE DIRECTORS IN AVOIDING, THE ADDITIONAL TAX, IS NOT TOO
VAGUE.  P. 289. 

(5)  THE RETROACTIVE ASSESSMENT IS NOT CONSTITUTIONALLY
OBJECTIONABLE.  P. 290. 

(6)  THE STATUTE DOES NOT DELEGATE LEGISLATIVE POWER TO THE
COMMISSIONER.  P. 290. 

(7)  DEPRECIATION IN ANY OF THE ASSETS IS EVIDENCE TO BE CONSIDERED
BY THE COMMISSIONER AND THE BOARD OF TAX APPEALS IN DETERMINING THE
ISSUE OF FACT WHETHER THE ACCUMULATION OF PROFITS WAS IN EXCESS OF THE
REASONABLE NEEDS OF THE BUSINESS.  BUT DEPRECIATION IN THE MARKET VALUE
OF SECURITIES WHICH THE CORPORATION CONTINUES TO HOLD DOES NOT, AS
MATTER OF LAW, PRECLUDE A FINDING THAT THE ACCUMULATION OF THE YEAR'S
PROFITS WAS IN EXCESS OF THE REASONABLE NEEDS OF THE BUSINESS.  P.
291. 

(8)  THE EVIDENCE IN THIS CASE SUPPORTS THE FINDINGS OF THE BOARD OF
TAX APPEALS THAT THE ACCUMULATION OF A HUGE SURPLUS BY THE TAXPAYER - A
CHAIN GROCERY COMPANY - WAS NOT WITH A PURPOSE OF PROVIDING FOR THE
EXPANSION OF THE BUSINESS, BUT TO ENABLE THE SOLE STOCKHOLDER TO ESCAPE
SURTAXES.  P. 291. 

(9)  TO WEIGH THE EVIDENCE, DRAW INFERENCES FROM IT AND DECLARE THE
RESULT IS A FUNCTION OF THE BOARD OF TAX APPEALS NOT SUBJECT TO REVIEW
BY THE CIRCUIT COURT OF APPEALS.  P. 294. 

HELVERING V. NATIONAL GROCERY CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 303 U.S. 630, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS WHICH OVERRULED A DECISION OF THE BOARD OF TAX APPEALS, 35
B.T.A. 163, SUSTAINING A DEFICIENCY INCOME TAX ASSESSMENT. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

NATIONAL GROCERY COMPANY IS A NEW JERSEY CORPORATION, WHICH OPERATES
CHAIN STORES.  SINCE 1911 IT HAS HAD $200,000 CAPITAL STOCK, ALL OWNED
BENEFICIALLY BY HENRY KOHL.  IN THE YEAR ENDING JANUARY 31, 1931, THE
CORPORATION'S BOOKS SHOWED A NET PROFIT OF $682,850.38, AFTER PAYING
$104,000 TO KOHL AS SALARY AND THE REGULAR FEDERAL CORPORATION INCOME
TAX OF 12 PER CENT.  ITS SURPLUS, AS SHOWN BY ITS BOOKS, INCREASED
DURING THE YEAR FROM $7,245,824.26 TO $7,938,965.54; THAT IS
$693,141.28.  IT PAID NO DIVIDEND. 

PROVIDES: 

"(A)  IF ANY CORPORATION, HOWEVER CREATED OR ORGANIZED, IS FORMED OR
AVAILED OF FOR THE PURPOSE OF PREVENTING THE IMPOSITION OF THE SURTAX
UPON ITS SHAREHOLDERS THROUGH THE MEDIUM OF PERMITTING ITS GAINS AND
PROFITS TO ACCUMULATE INSTEAD OF BEING DIVIDED OR DISTRIBUTED, THERE
SHALL BE LEVIED, COLLECTED AND PAID FOR EACH TAXABLE YEAR UPON THE NET
INCOME OF SUCH CORPORATION A TAX EQUAL TO 50 PER CENTUM OF THE AMOUNT
THEREOF, WHICH SHALL BE IN ADDITION TO THE TAX IMPOSED BY SECTION 13. 
... 

"(B)  THE FACT  ...  THAT THE GAINS OR PROFITS ARE PERMITTED TO
ACCUMULATE BEYOND THE REASONABLE NEEDS OF THE BUSINESS, SHALL BE PRIMA
FACIE EVIDENCE OF A PURPOSE TO ESCAPE THE SURTAX." 

THE COMMISSIONER OF INTERNAL REVENUE, HAVING FOUND THAT THE
CORPORATION HAD BEEN AVAILED OF FOR THE PURPOSE OF PREVENTING THE
IMPOSITION OF THE SURTAX UPON KOHL BY PERMITTING THE GAINS AND PROFITS
TO ACCUMULATE, ASSESSED UPON IT, UNDER SEC. 104, A DEFICIENCY TAX OF
$477,322.81 FOR THE TAX YEAR, IN ADDITION TO THE REGULAR CORPORATION
INCOME TAX, WHICH HAD BEEN PAID.  THIS AMOUNT, TOGETHER WITH $37.87
ADMITTEDLY DUE, CONSTITUTES THE TOTAL DEFICIENCY ASSESSMENT OF
$477,360.68. 

THE CORPORATION PETITIONED FOR A REDETERMINATION BY THE BOARD OF TAX
APPEALS.  BEFORE THE BOARD A LARGE VOLUME OF EVIDENCE WAS INTRODUCED
WHICH HAD NOT BEEN SUBMITTED TO THE COMMISSIONER.  IT DETAILED, AMONG
OTHER THINGS, THE FINANCIAL HISTORY OF THE BUSINESS FROM ITS
INCEPTION.  THERE WERE 35 ELABORATE EXHIBITS, MANY OF THEM PREPARED
FROM THE BOOKS WITH THE CO-OPERATION OF THE COUNSEL FOR THE CORPORATION
AND FOR THE COMMISSIONER.  TWENTY-FOUR OF THE EXHIBITS WERE INTRODUCED
BY THE TAXPAYER; ELEVEN BY THE COMMISSIONER.  THE TAXPAYER ALSO
PRESENTED AS WITNESSES KOHL AND THE TREASURER OF THE CORPORATION, WHO
TESTIFIED ORALLY TO THE HISTORY OF THE BUSINESS, ITS PRACTICES AND
AIMS; LOCAL BANK OFFICIALS WHO TESTIFIED AS EXPERTS TO THE WISDOM OF
ACCUMULATING THE PROFITS; AND OTHER EXPERTS WHO TESTIFIED TO THE
DEPRECIATION IN 1930 OF THE MARKET VALUE OF THE SECURITIES HELD BY THE
CORPORATION AND OF ITS REAL ESTATE.  THE BOARD, BY A BARE MAJORITY, FN1
SUSTAINED THE COMMISSIONER'S DETERMINATION.  IN STATING ITS
CONCLUSIONS, IT FOUND AS FOLLOWS: 

"WE FIND AS A FACT THAT THE PETITIONER'S ACCUMULATION OF EARNINGS WAS
FAR IN EXCESS OF THE 'REASONABLE NEEDS' OF THE CORPORATE BUSINESS. 

"WE ARE ALSO OF OPINION THAT THE EVIDENCE OF RECORD DOES NOT REBUT
THE PRIMA FACIE PRESUMPTION CREATED BY THE STATUTE THAT THE
ACCUMULATION OF EARNINGS BEYOND THE 'REASONABLE NEEDS OF THE BUSINESS'
WAS FOR THE PURPOSE OF PREVENTING THE IMPOSITION OF THE SURTAX UPON ITS
SOLE STOCKHOLDER.  ... 

"UPON THE EVIDENCE BEFORE US WE HAVE MADE THE FINDING THAT THE
PETITIONER WAS 'AVAILED OF' DURING THE FISCAL YEAR ENDED JANUARY 31,
1931, FOR THE PURPOSE OF PREVENTING THE IMPOSITION OF THE SURTAX UPON
ITS SOLE STOCKHOLDER 'THROUGH THE MEDIUM OF PERMITTING ITS GAINS AND
PROFITS TO ACCUMULATE INSTEAD OF BEING DIVIDED OR DISTRIBUTED.'" 

THE CORPORATION THEN PETITIONED FOR A REVIEW BY THE CIRCUIT COURT OF
APPEALS.  IT REVERSED THE ORDER OF THE BOARD; AND DID SO ON THE GROUND
THAT THERE WAS BEFORE THE BOARD "NO PROOF, SUBSTANTIAL OR OTHERWISE, TO
SUPPORT ITS IMPOSITION OF" THE TAX.  CERTIORARI WAS SOUGHT BY THE
COMMISSIONER, WHO URGED THAT IN SO DECIDING THE COURT HAD DEPARTED FROM
THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS.  WE GRANTED
CERTIORARI BECAUSE OF THE IMPORTANCE IN THE ADMINISTRATION OF THE
REVENUE LAWS OF THE MATTER PRESENTED. 

THE CORPORATION MAKES HERE TWO CONTENTIONS IN SUPPORT OF THE JUDGMENT
WHICH WERE NOT DISCUSSED BY THE COURT OF APPEALS.  IT CHALLENGES THE
CONSTITUTIONALITY OF THE STATUTE AND ALSO URGES THAT IN HOLDING THAT
THERE WERE "GAINS AND PROFITS" THE COMMISSIONER AND THE BOARD OF TAX
APPEALS MISCONSTRUED THE STATUTE.  THESE CONTENTIONS WILL BE CONSIDERED
BEFORE EXAMINING THE ALLEGED LACK OF EVIDENCE TO SUPPORT THE FINDINGS
OF THE BOARD. 

FIRST.  THE NATIONAL GROCERY COMPANY CONCEDES THAT SEC. 104 IS
CONSTITUTIONAL AS APPLIED TO A CORPORATION ORGANIZED FOR THE PURPOSE OF
PREVENTING THE IMPOSITION OF SURTAXES UPON ITS SHAREHOLDERS; FN2  BUT
URGES FIVE REASONS WHY IT SHOULD BE HELD VOID AS APPLIED TO A
LEGITIMATE BUSINESS CORPORATION WHICH IS "AVAILED OF" FOR THE FORBIDDEN
PURPOSE.  NONE OF THESE REASONS IS SOUND. 

1.  IT IS SAID THAT THE STATUTE VIOLATES THE TENTH AMENDMENT BECAUSE
IT INTERFERES WITH THE POWER TO DECLARE OR TO WITHHOLD DIVIDENDS - A
POWER WHICH THE STATE CONFERRED UPON THE CORPORATION.  THE STATUTE IN
NO WAY LIMITS THE POWERS OF THE CORPORATION.  IT MERELY LAYS THE TAX
UPON CORPORATIONS WHICH USE THEIR POWERS TO PREVENT IMPOSITION UPON
THEIR STOCKHOLDERS OF THE FEDERAL SURTAXES.  "CONGRESS IN RAISING
REVENUE HAS INCIDENTAL POWER TO DEFEAT OBSTRUCTIONS TO THAT INCIDENCE
OF TAXES WHICH IT CHOOSES TO IMPOSE."  UNITED BUSINESS CORP. V.
COMMISSIONER, 62 F.2D 754, 756. 

KOHL'S PERSONAL INCOME TAX FOR THE CALENDAR YEAR 1931 WAS
$32,034.74.  IF HE HAD INCLUDED IN HIS PERSONAL RETURN OF TAXABLE
INCOME THE CORPORATION'S ENTIRE NET INCOME FOR THE FISCAL YEAR 1930
1931, AN ADDITIONAL TAX UPON HIM OF OVER $115,000 WOULD HAVE BEEN DUE;
FN3  AND NO TAX WOULD HAVE BEEN ASSESSABLE AGAINST THE CORPORATION
UNDER SEC. 104.  FOR THE STATUTE EXPRESSLY PROVIDES, IN PARAGRAPH (D),
THAT THE CORPORATION SHALL NOT BE SO TAXED, IF THE STOCKHOLDERS MAKE
THE RETURN REQUIRED TO ENSURE THE SURTAX: 

"(D)  THE TAX IMPOSED BY THIS SECTION SHALL NOT APPLY IF ALL THE
SHAREHOLDERS OF THE CORPORATION INCLUDE (AT THE TIME OF FILING THEIR
RETURNS) IN THEIR GROSS INCOME THEIR ENTIRE DISTRIBUTIVE SHARES,
WHETHER DISTRIBUTED OR NOT, OF THE NET INCOME OF THE CORPORATION FOR
SUCH YEAR.  ANY AMOUNT SO INCLUDED IN THE GROSS INCOME OF A SHAREHOLDER
SHALL BE TREATED AS A DIVIDEND RECEIVED.  ANY SUBSEQUENT DISTRIBUTION
MADE BY THE CORPORATION OUT OF THE EARNINGS OR PROFITS FOR SUCH TAXABLE
YEAR SHALL, IF DISTRIBUTED TO ANY SHAREHOLDER WHO HAS SO INCLUDED IN
HIS GROSS INCOME HIS DISTRIBUTIVE SHARE, BE EXEMPT FROM TAX IN THE
AMOUNT OF THE SHARE SO INCLUDED." 

2.  IT IS SAID THAT THE STATUTE IS UNCONSTITUTIONAL BECAUSE THE
LIABILITY IMPOSED IS NOT A TAX UPON INCOME, BUT A PENALTY DESIGNED TO
FORCE CORPORATIONS TO DISTRIBUTE EARNINGS IN ORDER TO CREATE A BASIS
FOR TAXATION AGAINST THE STOCKHOLDERS.  IF THE BUSINESS HAD BEEN
CARRIED ON BY KOHL INDIVIDUALLY ALL THE YEAR'S PROFITS WOULD HAVE BEEN
TAXABLE TO HIM.  IF, HAVING A PARTNER, THE BUSINESS HAD BEEN CARRIED ON
AS A PARTNERSHIP, ALL THE YEAR'S PROFITS WOULD HAVE BEEN TAXABLE TO THE
PARTNERS INDIVIDUALLY, ALTHOUGH THESE HAD BEEN RETAINED BY THE
PARTNERSHIP UNDISTRIBUTED.  SEE HEINER V. MELLON, ANTE, P. 271.  KOHL,
THE SOLE OWNER OF THE BUSINESS, COULD NOT BY CONDUCTING IT AS A
CORPORATION, PREVENT CONGRESS, IF IT CHOSE TO DO SO, FROM LAYING ON HIM
INDIVIDUALLY THE TAX ON THE YEAR'S PROFITS.  FN4  IF IT PREFERRED,
CONGRESS COULD LAY THE TAX UPON THE CORPORATION, AS WAS DONE BY SEC.
104.  THE PENAL NATURE OF THE IMPOSITION DOES NOT PREVENT ITS BEING
VALID, AS THE TAX WAS OTHERWISE PERMISSIBLE UNDER THE CONSTITUTION. 
COMPARE HELVERING V. MITCHELL, 303 U.S. 391. 

3.  IT IS SAID THAT SEC. 104 IS UNCONSTITUTIONAL BECAUSE THE
LIABILITY IS LAID UPON THE MERE PURPOSE TO PREVENT IMPOSITION OF THE
SURTAXES, NOT UPON THE ACCOMPLISHMENT OF THAT PURPOSE; AND THAT, THUS,
IT IS A DIRECT TAX ON THE STATE OF MIND.  BUT THIS IS NOT SO.  THE TAX
IS LAID "UPON THE NET INCOME OF SUCH CORPORATION."  THE EXISTENCE OF
THE DEFINED PURPOSE IS A CONDITION PRECEDENT TO THE IMPOSITION OF THE
TAX LIABILITY, BUT THIS DOES NOT PREVENT IT FROM BEING A TRUE INCOME
TAX WITHIN THE MEANING OF THE SIXTEENTH AMENDMENT.  THE INSTANCES ARE
MANY IN WHICH PURPOSE OR STATE OF MIND DETERMINES THE INCIDENCE OF AN
INCOME TAX.  FN5 

4.  IT IS SAID THAT SEC. 104 AS APPLIED DEPRIVED THE CORPORATION OF
ITS PROPERTY WITHOUT DUE PROCESS OF LAW; THAT IT IS UNREASONABLE,
ARBITRARY AND CAPRICIOUS IN THAT NO STANDARD OR FORMULA IS SPECIFIED TO
GUIDE THE COMMISSIONER IN ASSESSING, OR THE CORPORATE DIRECTORS IN
AVOIDING, THE ADDITIONAL TAX; THAT IT IS ASSESSED RETROACTIVELY; AND
THAT IT IS UNFAIR TO NON-ASSENTING MINORITY STOCKHOLDERS.  THE
PRESCRIBED STANDARD IS NOT TOO VAGUE.  AS JUDGE LEARNED HAND SAID IN
UNITED BUSINESS CORP. V. COMMISSIONER, 62 F.2D 754, 756: 

"STANDARDS OF CONDUCT, FIXED NO MORE DEFINITELY, ARE COMMON IN THE
LAW; THE WHOLE LAW OF TORTS IS PERVADED BY THEM; MUCH OF ITS COMMANDS
ARE THAT A MAN MUST ACT AS THE OCCASION DEMANDS, THE STANDARD BEING
AVAILABLE TO ALL.  THE VICE OF FIXING MAXIMUM PRICES IS THAT IT
REQUIRES RECOURSE TO STANDARDS BEYOND ASCERTAINMENT BY SELLERS, BY
WHICH THEREFORE THEY CANNOT IN PRACTICE REGULATE THEIR DEALINGS.  THAT
IS NOT TRUE OF THE REASONABLE NEEDS OF A BUSINESS, WHICH IS IMMEDIATELY
WITHIN THE KEN OF THE MANAGERS, THE SUPPOSITITIOUS STANDARD, THOUGH
INDEED OBJECTIVE, BEING AS ACCESSIBLE AS THOSE FOR EXAMPLE OF THE
PRUDENT DRIVING OF A MOTOR CAR, OR OF THE DILIGENCE REQUIRED IN MAKING
A SHIP SEAWORTHY, OR OF THE EXTENT OF PROPER INQUIRY INTO THE SOLVENCY
OF A DEBTOR." 

CLEARLY, RETROACTIVE ASSESSMENT IS NO MORE OBJECTIONABLE HERE THAN IN
THE CASE OF PENALTIES FOR FRAUD OR NEGLIGENCE.  HELVERING V. MITCHELL,
SUPRA.  AND SINCE NO MINORITY STOCKHOLDERS ARE HERE INVOLVED, THE LAST
OBJECTION NEED NOT BE CONSIDERED.  CASTILLO V. MCCONNICO, 168 U.S. 674,
680; ATLANTIC REFINING CO. V. VIRGINIA, 302 U.S. 22, 27. 

5.  IT IS SAID THAT SEC. 104 IS VOID BECAUSE IT DELEGATES TO THE
COMMISSIONER LEGISLATIVE POWER.  THE STATUTE PROVIDES THAT IF THE
CORPORATION IS AVAILED OF FOR THE FORBIDDEN PURPOSE, THE TAX "SHALL BE
LEVIED, COLLECTED, AND PAID"; AND CERTAIN FACTS ARE MADE PRIMA FACIE
EVIDENCE OF THE EXISTENCE OF THIS PURPOSE.  NO POWER IS DELEGATED TO
THE COMMISSIONER SAVE THAT OF FINDING FACTS UPON EVIDENCE. 

SECOND.  THE CORPORATION CONTENDS, AS A MATTER OF STATUTORY
CONSTRUCTION, THAT SEC. 104 WAS NOT APPLICABLE BECAUSE THERE WERE NO
"GAINS AND PROFITS" WITHIN THE TAX YEAR.  CONCEDING THAT NET INCOME OF
$863,787.22 WAS EARNED,  FN6  IT ASSERTS THAT THERE WERE "NO GAINS AND
PROFITS" BECAUSE THE DEPRECIATION IN THE SECURITIES OWNED, NONE OF
WHICH WERE SOLD, EXCEEDED $2,000,000.  THE ARGUMENT IS THAT THE WORD
"GAINS" WAS NOT USED AS SYNONYMOUS WITH "PROFITS," BUT TO EXPRESS
CONTEMPLATED UNREALIZED INCREASES OR ACCESSION IN NET WORTH OF THE
ASSETS; AND THAT ASSESSABILITY UNDER SEC. 104 DEPENDS NOT UPON GAINS OR
PROFITS - BUT UPON THE AGGREGATE OF GAINS (OR LOSSES) AND PROFITS,
SINCE PRUDENT DIRECTORS WOULD TAKE THESE INTO CONSIDERATION IN
DETERMINING WHETHER A DIVIDEND SHOULD BE DECLARED.  DEPRECIATION IN ANY
OF THE ASSETS IS EVIDENCE TO BE CONSIDERED BY THE COMMISSIONER AND THE
BOARD IN DETERMINING THE ISSUE OF FACT WHETHER THE ACCUMULATION OF
PROFITS WAS IN EXCESS OF THE REASONABLE NEEDS OF THE BUSINESS.  BUT
OBVIOUSLY DEPRECIATION IN THE MARKET VALUE OF SECURITIES WHICH THE
CORPORATION CONTINUES TO HOLD DOES NOT, AS MATTER OF LAW, PRECLUDE A
FINDING THAT THE ACCUMULATION OF THE YEAR'S PROFITS WAS IN EXCESS OF
THE REASONABLE NEEDS OF THE BUSINESS. 

THIRD.  THERE WAS AMPLE EVIDENCE TO SUPPORT THE FINDINGS OF THE BOARD
OF TAX APPEALS.  THE CORPORATION HELD ON JANUARY 31, 1930, BONDS AND
STOCKS VALUED AT $2,779,718.07; ON JANUARY 31, 1931 IT HELD
$2,989,452.74 - AN INCREASE OF $209,734.67.  THE LIST OF THESE BONDS
AND STOCKS SHOWED THAT THEY WERE IN NO WAY RELATED TO A GROCERY
BUSINESS.  FN7  THAT THERE WAS NO NEED OF ACCUMULATING ANY PART OF THE
YEAR'S EARNINGS FOR THE PURPOSE OF FINANCING THE BUSINESS WAS SHOWN BY
THE BALANCE SHEET.  COMPARING THE CASH ON HAND WITH THE OUTSTANDING
INDEBTEDNESS, IT APPEARS THAT THE $1,332,332.28 CASH ON HAND JANUARY
31, 1930 EXCEEDED THE $1,161,121.96 ACCOUNTS PAYABLE, NOTES AND
MORTGAGE, BY $171,210.32.  ON JANUARY 31, 1931, THE EXCESS OF CASH OVER
ACCOUNTS PAYABLE WAS $1,136,820.55.  THESE WERE THEN ONLY $269,140.49;
AND THE CASH ON HAND WAS $1,405,961.04.  THE NOTES PAYABLE AND THE
MORTGAGE HAD BEEN DISCHARGED. 

THAT THE PURPOSE OF ACCUMULATING THIS HUGE SURPLUS WAS TO ESCAPE THE
IMPOSITION UPON KOHL OF SURTAXES, WAS INDICATED BY THE FOLLOWING
FACTS.  THE $4,395,413.78 AGGREGATE OF BONDS, STOCKS, AND EXCESS CASH
JANUARY 31, 1931, REPRESENTS ABOUT FOUR-FIFTHS OF THE TOTAL
ACCUMULATION OF THE SURPLUS PROFITS DURING THE LAST TEN YEARS, WHICH
AMOUNTED TO $5,742,455.35.  FN8  IF THE SURPLUS PROFITS OF THE FISCAL
YEAR 1930-1931 HAD BEEN DISTRIBUTED AS DIVIDENDS, THE ADDITIONAL
SURTAXES PAYABLE THEREON BY KOHL IN THE YEAR 1931 WOULD HAVE BEEN AT
LEAST $90,744.56, AND FOR THE PRECEDING NINE YEARS WOULD HAVE
AGGREGATED $1,240,852.30.  FN9    FURTHER EVIDENCE TO SUPPORT THE
BOARD'S FINDINGS THAT IN THE TAX YEAR DIVIDENDS WERE OMITTED AND THE
SURPLUS ACCUMULATED IN ORDER TO ENABLE KOHL TO ESCAPE THESE SURTAXES IS
FURNISHED BY THE FOLLOWING FACTS:  KOHL DREW HIS SALARY OF $104,000 A
YEAR; AND THAT SUM, AS AN EXPENSE OF THE BUSINESS, WAS DEDUCTED BEFORE
CALCULATING THE CORPORATION'S PROFIT ON WHICH IT PAID TAXES UNDER SEC.
13.  HE NEEDED PERSONALLY FURTHER SUMS AND TOOK THESE IN THE FORM OF
LOANS.  IN THE TAX YEAR KOHL BORROWED FROM THE CORPORATION $140,000. 
HIS AGGREGATE INDEBTEDNESS ON JANUARY 31, 1931 FOR BORROWINGS DURING
SEVEN YEARS, WAS $610,000.  AS WAS STATED IN UNITED BUSINESS CORP. V.
COMMISSIONER, SUPRA, P. 755:  "THESE LOANS ARE INCOMPATIBLE WITH A
PURPOSE TO STRENGTHEN THE FINANCIAL POSITION OF THE PETITIONER, BUT
ENTIRELY ACCORD WITH A DESIRE TO GET THE EQUIVALENT OF HIS DIVIDENDS
UNDER ANOTHER GUISE."  FN10 

SINCE KOHL WAS THE SOLE OWNER OF THE CORPORATION, THE BUSINESS WOULD
HAVE BEEN AS WELL PROTECTED AGAINST UNEXPECTED DEMANDS FOR CAPITAL, AND
ASSURED OF CAPITAL FOR THE PURPOSE OF ANY POSSIBLE EXPANSION, BY HIS
PERSONAL OWNERSHIP OF THE SECURITIES AS BY THE CORPORATION'S OWNING
THEM.  MOREOVER, NO CONCEIVABLE EXPANSION COULD HAVE UTILIZED SO LARGE
A SURPLUS.  FN11  THE HIGH TAXES WERE FIRST IMPOSED IN 1919.  FN12
AFTER THAT TIME NO DIVIDEND WAS PAID UNTIL AFTER THE CLOSE OF THE
TAXABLE YEAR HERE INVOLVED. 

THUS, INDEPENDENTLY OF THE PRESUMPTION PRESCRIBED IN SEC. 104(B)
THERE WAS AMPLE EVIDENCE TO SUPPORT THE BOARD'S FINDINGS. 

FOURTH.  THE COURT OF APPEALS, INSTEAD OF LIMITING ITS REVIEW TO
ASCERTAINING WHETHER THERE WAS EVIDENCE TO SUPPORT THE BOARD'S FINDINGS
AND DECISION, MADE ON ALL THE EVIDENCE, AS UPON A TRIAL DE NOVO, IN
EFFECT, AN INDEPENDENT DETERMINATION OF THE MATTERS WHICH HAD BEEN IN
ISSUE BEFORE THE BOARD.  THE COURT WAS WITHOUT POWER TO DO SO.
HELVERING V. RANKIN, 295 U.S. 123, 131-32.  TO DRAW INFERENCES, TO
WEIGH THE EVIDENCE AND TO DECLARE THE RESULT WAS THE FUNCTION OF THE
BOARD.  HULBURD V. COMMISSIONER, 296 U.S. 300, 306; ELMHURST CEMETERY
CO. V. COMMISSIONER, 300 U.S. 37, 40. 

FIFTH.  THE COURT EXPRESSED THE OPINION THAT THE BOARD FAILED TO
CONSIDER RELEVANT AND CONTROLLING FACTS, THAT IT RELIED UPON IMPROPER
EVIDENCE IN REACHING ITS CONCLUSION, AND THAT IT FAILED TO MAKE THE
FINDINGS REQUIRED BY THE STATUTE.  THERE IS NOTHING IN THE RECORD TO
JUSTIFY THAT VIEW.  THE FINDINGS QUOTED ABOVE ARE SPECIFIC.  THE BOARD
WAS NOT OBLIGED TO ACCEPT AS TRUE KOHL'S STATEMENT OF HIS INTENTION AND
PURPOSES; OR TO ACCEPT AS SOUND THE OPINION OF HIS EXPERTS.  IT WAS
ERROR TO REVERSE THE DECISION OF THE BOARD.  THERE IS NO OCCASION TO
REMAND THE CASE TO IT FOR FURTHER CONSIDERATION.  REVERSED. 

FN1  MR. MELLOTT, WHO STATED THE VIEWS OF THE MINORITY, SAID:  "THIS
BEING A 'FACT CASE', IT IS WITH SOME RELUCTANCE THAT I REACH A
CONCLUSION AT VARIANCE WITH THAT OF THE MEMBER WHO HEARD THE TESTIMONY
OF THE WITNESSES AND HAD THE ADVANTAGE OF OBSERVING THEIR MANNER AND
DEMEANOR WHILE TESTIFYING.  ..." 

FN2  CITING UNITED BUSINESS CORP. V. COMMISSIONER, 62 F.2D 754(C.C.A.
2); A.D. SAENGER, INC. V. COMMISSIONER, 84 F.2D 23(C.C.A. 5); ALMOURS
SECURITIES, INC. V. COMMISSIONER, 91 F.2D 427(C.C.A. 5); WILLIAMS INV.
CO. V. UNITED STATES, 3 F.SUPP.  225(CT. CL.).  SEE ALSO UNITED STATES
V. R.C. TWAY COAL CO., 75 F.2D 336(C.C.A. 6); KECK INV. CO. V.
COMMISSIONER, 77 F.2D 244(C.C.A. 9). 

FN3  IT IS NOT POSSIBLE TO CALCULATE WHAT KOHL'S EXACT ADDITIONAL
SURTAX LIABILITY WOULD HAVE BEEN HAD HE INCLUDED THE CORPORATION'S
INCOME FOR 1930-1931 IN HIS PERSONAL RETURN FOR 1931, SINCE THAT RETURN
IS NOT IN EVIDENCE.  A MINIMUM FIGURE, HOWEVER, MAY BE OBTAINED.  THE
CORPORATION'S "NET INCOME," AS DEFINED IN SEC. 104, WAS $954,645.62. 
THERE MUST BE DEDUCTED FROM THIS $103,654.47 FOR CORPORATION INCOME
TAX; AND $100,000 WAS DISTRIBUTED AS A DIVIDEND IN 1931 AND INCLUDED IN
COMPUTING THE TAX PAID BY KOHL IN THAT YEAR.  EVEN ASSUMING THAT THE
REMAINING $750,991.15 WOULD HAVE CONSTITUTED HIS ENTIRE NET INCOME FOR
1931, AND THAT THE MAXIMUM DEDUCTION OF 15% OF THIS AMOUNT FOR
CHARITABLE CONTRIBUTIONS COULD HAVE BEEN TAKEN, A SURTAX OF $119,328.50
WOULD HAVE BEEN DUE. 

FN4  THE FIRST STATUTE WHICH PROVIDED FOR TAXATION WHERE CORPORATE
PROFITS ARE ACCUMULATED FOR THE PURPOSE OF PREVENTING THE IMPOSITION OF
SURTAXES UPON STOCKHOLDERS WAS THE TARIFF ACT OF 1913, SEC. 2A,
SUBDIV.  1, 38 STAT. 166.  IN THAT ACT, IN THE REVENUE ACT OF 1916,
SEC. 3, 39 STAT. 758, AND IN THE REVENUE ACT OF 1918, SEC. 220, 40
STAT. 1072, THE TAX WAS LAID UPON THE SHAREHOLDER.  IN ALL LATER
REVENUE ACTS, THE TAX IS LAID UPON THE CORPORATION.  1921 ACT, SEC.
220, 42 STAT. 247; 1924 ACT, SEC. 220, 43 STAT. 277; 1926 ACT, SEC.
220, 44 STAT. 34; 1928 ACT, SEC. 104, 45 STAT. 814; 1932 ACT, SEC. 104,
47 STAT. 195; 1934 ACT, SEC. 102, 48 STAT. 702; 1936 ACT, SEC. 102, 49
STAT. 1676. 

THE REVENUE ACTS OF 1918 AND 1921, SECS. 218(E) AND 218(D),
RESPECTIVELY, ALSO TAXED THE SHAREHOLDERS OF "PERSONAL SERVICE
CORPORATIONS" LIKE PARTNERS.  SECTION 112(K) OF THE REVENUE ACT OF 1932
AND SEC. 112(I) OF THE ACTS OF 1934 AND 1936 PROVIDE FOR THE DISREGARD
OF THE CORPORATE ENTITY IN CERTAIN CASES WHERE FOREIGN CORPORATIONS ARE
USED FOR THE PURPOSE OF AVOIDING FEDERAL TAXES.  AND SEC. 201 OF THE
REVENUE ACT OF 1937, 50 STAT. 818, PROVIDES THAT THE ADJUSTED
UNDISTRIBUTED NET INCOME OF FOREIGN PERSONAL HOLDING COMPANIES MUST BE
INCLUDED IN THE GROSS INCOME OF THEIR UNITED STATES SHAREHOLDERS. 
COMPARE ALSO SOUTHERN PAC. CO. V. LOWE, 247 U.S. 330, 336; GULF OIL
CORP. V. LEWELLYN, 248 U.S. 71; GREGORY V. HELVERING, 293 U.S. 465. 

FN5  FOR EXAMPLE, SEC. 293(B) OF THE REVENUE ACT OF 1928 PROVIDES
THAT IF ANY PART OF A DEFICIENCY IS DUE TO "FRAUD WITH INTENT TO EVADE
TAX," THERE SHALL BE AN "ADDITION TO THE TAX" OF 50% OF THE
DEFICIENCY.  HELVERING V. MITCHELL, 303 U.S. 391.  WHETHER A PAYMENT
RECEIVED IS COMPENSATION WITHIN SEC. 22(A) OR IS A GIFT WITHIN SEC.
22(B)(3) IS LARGELY A MATTER OF INTENTION.  COMPARE BOGARDUS V.
COMMISSIONER, 302 U.S. 34, 45.  SIMILARLY, THE DEDUCTIBILITY OF LOSSES
UNDER SEC. 23(E) MAY DEPEND UPON WHETHER THE TAXPAYER'S MOTIVE IN
ENTERING INTO THE TRANSACTION WAS PRIMARILY PROFIT.  COMPARE HEINER V.
TINDLE, 276 U.S. 582; STUART V. COMMISSIONER, 84 F.2D 368(C.C.A. 1);
GOLDSBOROUGH V. BURNET, 46 F.2D 432(C.C.A. 4); BEAUMONT V. HELVERING,
63 APP. D.C. 387; 73 F.2D 110, 113; DRESSER V. UNITED STATES, 55 F.2D
499(CT. CL.).  AND SEC. 112(K) OF THE REVENUE ACT OF 1932(AND SEC.
112(I) OF THE ACTS OF 1934 AND 1936) PROVIDES THAT A FOREIGN
CORPORATION SHALL NOT BE CONSIDERED AS A CORPORATION FOR PURPOSES OF
CERTAIN OF THE NON-RECOGNITION PROVISIONS OF THAT SECTION UNLESS "IT
HAS BEEN ESTABLISHED TO THE SATISFACTION OF THE COMMISSIONER THAT SUCH
EXCHANGE OR DISTRIBUTION IS NOT IN PURSUANCE OF A PLAN HAVING AS ONE OF
ITS PRINCIPAL PURPOSES THE AVOIDANCE OF FEDERAL INCOME TAXES." 

FN6  THE CORPORATION REPORTED IN ITS RETURN AN INCOME OF
$863,471.67.  THIS WAS INCREASED BY THE COMMISSIONER TO $863,787.22,
AND IS NOT NOW DISPUTED. 

FN7  THE STOCK HELD JANUARY 31, 1931, OF THE AGGREGATE COST OF
$2,676,061.47, CONSISTED OF ISSUES OF 147 DIFFERENT CORPORATIONS.  OF
INDUSTRIALS THERE WERE 61.  OF PUBLIC UTILITIES, 27.  OF INSURANCE
COMPANIES, 18.  OF INVESTMENT TRUSTS, 13.  OF BANKS AND TRUST
COMPANIES, 28.  THERE WERE, BESIDES, GOVERNMENT, MUNICIPAL, RAILROAD,
PUBLIC UTILITY, INDUSTRIAL AND MISCELLANEOUS BONDS WHICH COST
$313,391.27. 

FN8  THE PROFITS FOR THESE YEARS (AFTER DEDUCTING FEDERAL CORPORATION
INCOME TAXES PAID) ARE LISTED IN NOTE 9, INFRA. 

FN9  KOHL'S INDIVIDUAL RETURNS WERE MADE ON A CALENDAR YEAR CASH
BASIS.  FOR THE FISCAL YEAR HERE IN QUESTION, JANUARY 31, 1930 TO
JANUARY 31, 1931, THE CORPORATION'S BOOKS SHOWED A PROFIT OF
$682,850.38 AFTER DEDUCTING KOHL'S SALARY AND THE 12% CORPORATION
INCOME TAX PAID.  A DIVIDEND OF $100,000 WAS PAID IN 1931.  HAD THE
REMAINING $582,850.38 BEEN ENTIRELY DISTRIBUTED IN THAT YEAR, KOHL
WOULD HAVE INCURRED AN ADDITIONAL SURTAX LIABILITY OF $90,744.56, EVEN
IF IT BE ASSUMED THAT THE ADDITIONAL DISTRIBUTION WOULD HAVE
CONSTITUTED HIS ENTIRE NET INCOME FOR THAT YEAR AND THAT THE 15%
MAXIMUM CHARITABLE CONTRIBUTIONS DEDUCTION COULD HAVE BEEN TAKEN.  (IT
IS IMPOSSIBLE TO CALCULATE WHAT HIS EXACT SURTAX LIABILITY FOR 1931
WOULD HAVE BEEN, INASMUCH AS HIS PERSONAL RETURN FOR THAT YEAR IS NOT
IN EVIDENCE.)  COMPARE NOTE 3, SUPRA. 

IF THE CORPORATION HAD DISTRIBUTED ITS PROFITS FOR EACH FISCAL YEAR
IMMEDIATELY AFTER ITS CLOSE ON JANUARY 31, KOHL'S ADDITIONAL SURTAX
LIABILITY FOR THE NINE PRECEDING YEARS WOULD HAVE BEEN AS FOLLOWS: 

(CHART OMITTED) 

FN10  COMPARE A.D. SAENGER, INC. V. COMMISSIONER, 84 F.2D 23(C.C.A.
5); UNITED STATES V. R.C. TWAY COAL CO., 75 F.2D 336, 340(C.C.A. 6). 

FN11  IN THE TEN YEARS THE NUMBER OF STORES IN THE CHAIN HAD BEEN
INCREASED FROM 358 TO 815.  EVEN ON KOHL'S OWN ESTIMATE THAT "INCLUDING
EVERYTHING YOU HAVE TO HAVE ABOUT $5000 PER STORE," THIS EXPANSION
COULD ACCOUNT FOR ONLY $2,285,000 OF THE $5,742,455.35 OF PROFITS
ACCUMULATED OVER THAT PERIOD. 

FN12  THE REVENUE ACT OF 1918, 40 STAT. 1057, WHICH WAS NOT ENACTED
UNTIL FEBRUARY 24, 1919, IMPOSED A SURTAX OF AS MUCH AS 65% ON INCOME
IN EXCESS OF $1,000,000.  THE MAXIMUM RATE UNDER THE REVENUE ACT OF
1916, 39 STAT. 756, WAS ONLY 13% ON INCOME IN EXCESS OF $2,000,000. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER ARE OF OPINION THAT THE
JUDGMENT BELOW SHOULD BE AFFIRMED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :














ST. LOUIS ETC. RY. V. BROWNSVILLE DIST., 304 U.S. 295 


NO. 300.  ARGUED MARCH 2, 1938.  - DECIDED MAY 16, 1938.  - 91 F.2D 502,
REVERSED. 


1.  THOUGH NOT BOUND TO FURNISH CARS FOR TRANSPORTATION IN MEXICO,
CARRIERS MAY NOT DISCRIMINATE UNREASONABLY BETWEEN SHIPPERS, PLACES, OR
CLASSES OF TRAFFIC WITHIN THE UNITED STATES IN THE FURNISHING OF
EQUIPMENT FOR TRANSPORTATION BEYOND THE BOUNDARY.  P. 300. 

2.  THE RAIL CONNECTION OF THE PORT OF BROWNSVILLE, TEXAS, WITH
MATAMOROS, MEXICO, WAS OVER LINE OF CARRIER A TO LINE OF CONNECTING
CARRIER B; OVER B TO A BRIDGE, AND ACROSS THE RIO GRANDE TO LINES IN
MEXICO.  A OWNED NO CARS BUT CONFINED ITSELF TO SWITCHING SERVICE; B
WAS ENGAGED IN TRAFFIC BETWEEN OTHER TEXAS PORTS AND MEXICO, BUT
PARTICIPATION IN TRAFFIC BETWEEN PORT OF BROWNSVILLE AND MEXICO WAS
CONFINED TO INTERMEDIATE SWITCHING SERVICE, THE CHARGE FOR WHICH WAS
SPECIFIED IN ITS TARIFF.  THERE WAS NO JOINT RATE APPLICABLE OVER THE
TRACKS OF A AND B, THE BRIDGE AND ANY RAILWAY IN MEXICO, NOR DID THE
TARIFFS OF A AND B CONTAIN ANY PROVISION RELATING TO THE FURNISHING OF
CARS FOR SUCH TRANSPORTATION.  B FURNISHED CARS FOR LINE HAULS FROM THE
OTHER PORTS BUT REFUSED TO PERMIT CARS DELIVERED BY IT TO A TO BE
RELOADED FOR SHIPMENT INTO MEXICO, OR TO DELIVER CARS TO A FOR LOADING
AT THE PORT OF BROWNSVILLE, OR, IF LOADED THERE, TO SWITCH THEM EN
ROUTE TO MEXICO.  IN AN ACTION OF MANDAMUS BY THE PORT OF BROWNSVILLE,
AND SHIPPERS, HELD: 

(1)  THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION TO REQUIRE
EITHER A OR B TO FURNISH CARS FOR TRANSPORTATION BETWEEN THAT PORT AND
MEXICO.  PP. 299-300. 

(2)  THE QUESTION OF DISCRIMINATION BY B BETWEEN THAT AND OTHER
PORTS, WAS AN ADMINISTRATIVE QUESTION FOR THE INTERSTATE COMMERCE
COMMISSION.  ID. 

ST. LOUIS, BROWNSVILLE & MEXICO RY. CO. ET AL. V. BROWNSVILLE
NAVIGATION DISTRICT ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 302 U.S. 669, TO REVIEW A JUDGMENT WHICH REVERSED A
JUDGMENT OF THE DISTRICT COURT DISMISSING A PETITION FOR MANDAMUS, FOR
WANT OF JURISDICTION. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS APPLIED TO THE UNITED STATES COURT FOR THE SOUTHERN
DISTRICT OF TEXAS TO OBTAIN A WRIT OF MANDAMUS  FN1  COMMANDING
PETITIONERS TO TRANSPORT CERTAIN TRAFFIC AND TO FURNISH AND CONTINUE
FOR ALL TIME TO FURNISH CARS FOR TRANSPORTATION OF FREIGHT BETWEEN THE
PORT OF BROWNSVILLE, TEXAS, AND MATAMOROS, MEXICO.  PETITIONERS BY
PLEAS TO THE JURISDICTION ASSERTED THAT THE QUESTIONS RAISED WERE
ESSENTIALLY ADMINISTRATIVE AND THAT THEREFORE RESORT MUST FIRST BE HAD
TO THE INTERSTATE COMMERCE COMMISSION.  THE DISTRICT COURT HEARD
EVIDENCE ON THE ISSUES TENDERED BY THE PLEAS, SUSTAINED THE
PETITIONERS' CONTENTION AND DISMISSED THE CASE.  THE CIRCUIT COURT OF
APPEALS REVERSED.  91 F.2D 502.  THIS COURT GRANTED A WRIT OF
CERTIORARI. 

THE CITY OF BROWNSVILLE IS ON THE NORTH SIDE OF THE RIO GRANDE
OPPOSITE MATAMOROS.  THE RESPONDENT NAVIGATION DISTRICT, CALLED THE
"PORT OF BROWNSVILLE," WAS INCORPORATED UNDER TEXAS LAW; FN2 IT
INCLUDES A CHANNEL EXTENDING FROM THE GULF OF MEXICO ABOUT 17 MILES TO
A TURNING BASIN WHICH IS LOCATED OUTSIDE, AND ABOUT FIVE MILES FROM THE
CENTER OF, BROWNSVILLE.  THE PORT HAS NO LOCOMOTIVE OR CARS; IT HAS
FACILITIES AT THE BASIN TO LOAD AND UNLOAD VESSELS, AND A RAILROAD
TRACK EXTENDING FROM THE BASIN ABOUT A MILE, TO JUNCTION, AT THE
BOUNDARY OF THE DISTRICT, WITH A SHORT BRANCH OR SPUR OF PETITIONER,
THE PORT ISABEL & RIO GRANDE VALLEY RAILWAY COMPANY.  EACH OF THE OTHER
TWO RESPONDENTS IS ENGAGED IN BUSINESS AT THE PORT AS STEVEDORE,
FREIGHT BROKER, AND FORWARDING AGENT.  ALL THE RESPONDENTS ARE DIRECTLY
INTERESTED IN THE TRANSPORTATION OF FREIGHT BETWEEN THE PORT OF
BROWNSVILLE AND POINTS IN MEXICO VIA MATAMOROS. 

PETITIONER THOMPSON, AS TRUSTEE IN PROCEEDINGS UNDER SEC. 77 OF THE
BANKRUPTCY ACT, OPERATES THE ST. LOUIS, BROWNSVILLE & MEXICO RAILWAY
AND OTHER LINES OF THE MISSOURI PACIFIC SYSTEM FOR TRANSPORTATION
BETWEEN GULF PORTS IN TEXAS AND RIO GRANDE CROSSINGS INTO MEXICO.  THE
PORT ISABEL, IN ALL ABOUT 26 MILES LONG, EXTENDS FROM THE GULF TO
TRACKS OPERATED BY THE TRUSTEE IN THE CITY OF BROWNSVILLE.  THE
BROWNSVILLE & MATAMOROS BRIDGE COMPANY HAS A BRIDGE AND RAILROAD TRACKS
CONNECTING THE TRUSTEE'S TRACKS IN BROWNSVILLE WITH THE NATIONAL
RAILWAYS OF MEXICO IN MATAMOROS.  SHIPMENTS BETWEEN THE PORT OF
BROWNSVILLE AND MATAMOROS MUST MOVE ABOUT A MILE OVER THE TRACKS OF THE
NAVIGATION DISTRICT, 7.4 MILES OVER THE PORT ISABEL, 2.49 MILES OVER
THE TRUSTEE'S TRACKS AND 1.24 MILES OVER THE BRIDGE COMPANY'S RAILS. 

THERE IS NO JOINT RATE APPLICABLE TO TRANSPORTATION BETWEEN THE PORT
AND MATAMOROS OR ANY OTHER POINT IN MEXICO OVER THE TRACKS OF
PETITIONERS, THE BRIDGE COMPANY AND ANY RAILWAY IN MEXICO.  THE SERVICE
PERFORMED BY EACH PETITIONER IS COVERED BY A SWITCHING CHARGE SPECIFIED
IN ITS TARIFF FILED WITH THE INTERSTATE COMMERCE COMMISSION.  NEITHER
THE TARIFF OF THE PORT ISABEL NOR THAT OF THE TRUSTEE CONTAINS ANY
RULE, REGULATION OR PROVISION RELATING TO THE FURNISHING OF CARS FOR
THE TRANSPORTATION IN QUESTION.  THE PORT ISABEL PERFORMS THE INITIAL
MOVEMENT OF TRAFFIC FROM THE PORT; IT HAS NO CARS OR MEANS TO ACQUIRE
ANY.  THE MEXICAN NATIONAL RAILWAYS ARE THE INITIAL CARRIERS OF TRAFFIC
IN THE OTHER DIRECTION; THEY REFUSE TO PERMIT THEIR CARS TO LEAVE
MEXICO. 

THE TRUSTEE FURNISHES CARS FOR TRANSPORTATION FROM THE PORTS OF
CORPUS CHRISTI AND HOUSTON TO GATEWAYS AT RIO GRANDE CROSSINGS,
INCLUDING LAREDO AND BROWNSVILLE; IN ALL THAT TRANSPORTATION HE HAS
SUBSTANTIAL LINE HAULS.  BUT HE REFUSES TO PERMIT CARS DELIVERED BY HIM
TO THE PORT ISABEL AND TAKEN BY THE LATTER TO THE BASIN FOR UNLOADING
TO BE RELOADED FOR SHIPMENT INTO MEXICO, AND REFUSES TO DELIVER TO THE
PORT ISABEL CARS UNDER HIS CONTROL TO BE LOADED AT THE PORT; AND IF
LOADED THERE FOR TRANSPORTATION INTO MEXICO HE REFUSES TO SWITCH THEM
EN ROUTE.  WITHOUT REGARD TO OWNERSHIP, CONTROL OR DISTRIBUTION, THE
PORT ISABEL IS WILLING TO SWITCH CARS BETWEEN THE PORT AND ITS JUNCTION
WITH THE TRUSTEE'S TRACKS. 

AFTER THE DISTRICT COURT DISMISSED THIS CASE, RESPONDENTS FILED WITH
THE COMMISSION A COMPLAINT ALLEGING THAT PETITIONERS, PRINCIPALLY BY
THEIR FAILURE TO FURNISH EQUIPMENT, REFUSED TO PERMIT TRAFFIC TO MOVE
BETWEEN THE PORT AND MATAMOROS, IN VIOLATION OF SECS. 1 AND 6 OF THE
INTERSTATE COMMERCE ACT, AND THAT THE TRUSTEE'S REFUSAL TO PERMIT SUCH
USE OF HIS EQUIPMENT, WHILE PERMITTING IT BETWEEN OTHER PORTS AND
MEXICO, VIOLATES SEC. 3 OF THE ACT.  THEY PRAYED AN ORDER REQUIRING
PETITIONERS TO FURNISH EQUIPMENT AND TO REMOVE THE PREJUDICE AND
PREFERENCE ALLEGED.  AFTER HEARING BY THE COMMISSION BUT BEFORE ITS
REPORT, THE CIRCUIT COURT OF APPEALS ANNOUNCED ITS DECISION, IN WHICH
IT HELD THAT THE DISTRICT COURT HAS JURISDICTION TO GRANT MANDAMUS,
NOTWITHSTANDING THE PETITION FOR THE WRIT ALLEGED UNREASONABLE AND
PREJUDICIAL DISCRIMINATION AGAINST THE PORT OF BROWNSVILLE.  AFTER THIS
COURT GRANTED THE WRIT OF CERTIORARI, RESPONDENTS FILED A PETITION WITH
THE COMMISSION ASKING IT TO DEFER ACTING UPON THEIR ALLEGATIONS OF
VIOLATION OF SECS. 1 AND 6.  AND THE COMMISSION DID LIMIT ITS DECISION
TO ALLEGED VIOLATIONS OF SEC. 3.  IT HELD THAT THE REFUSAL OF THE
TRUSTEE TO FURNISH CARS WAS NOT UNDULY PREJUDICIAL OR PREFERENTIAL. 

THE RESPONDENTS DO NOT COMPLAIN THAT PETITIONERS REFUSE TO SWITCH
CARS FURNISHED BY OTHER CARRIERS OR BY THE PORT ITSELF.  THEIR
GRIEVANCE IS NOT THAT PETITIONERS REFUSE TO DO THE SWITCHING COVERED BY
THEIR TARIFFS AT THE SPECIFIED RATES; IT IS THAT IN APPLYING THEIR
TARIFFS, THEY DISCRIMINATE AGAINST THE PORT OF BROWNSVILLE IN ORDER TO
DIVERT TRAFFIC TO OTHER PORTS AND GATEWAYS SO THAT THE TRUSTEE MAY
OBTAIN SUBSTANTIAL LINE HAULS.  THE ACT EXTENDS TO TRANSPORTATION ONLY
SO FAR AS IT TAKES PLACE IN THIS COUNTRY.  PETITIONERS ARE NOT BOUND BY
ANY LAW, REGULATION, OR TARIFF TO FURNISH CARS FOR TRANSPORTATION IN
MEXICO.  BUT THAT FREEDOM FROM OBLIGATION DOES NOT IMPLY THAT, IN
FURNISHING EQUIPMENT FOR TRANSPORTATION BEYOND THE BOUNDARY,
PETITIONERS MAY UNREASONABLY DISCRIMINATE BETWEEN SHIPPERS, PLACES, OR
CLASSES OF TRAFFIC WITHIN THE UNITED STATES.  CF. LEWIS-SIMAS-JONES CO.
V. SOUTHERN PAC. CO., 283 U.S. 654. 

AS THE PORT ISABEL DOES NOT OWN OR CONTROL ANY FREIGHT CARS,
RESPONDENTS MAY NOT HAVE RELIEF ON THE GROUND THAT THE FAILURE OF THAT
CARRIER TO FURNISH THEM IS UNREASONABLE DISCRIMINATION.  AS THE TRUSTEE
PARTICIPATES IN TRAFFIC BETWEEN THE BASIN AND POINTS IN MEXICO ONLY TO
THE EXTENT OF AN INTERMEDIATE SWITCHING MOVEMENT, HE IS NOT, AS A
MATTER OF LAW, BOUND TO FURNISH CARS EVEN FOR THE PART OF THE
TRANSPORTATION THAT IS PERFORMED WITHIN THE UNITED STATES.  THE
QUESTION, WHETHER THE DISCRIMINATION IN THE APPLICATION OF HIS TARIFF
COVERING THE SWITCHING MOVEMENT IS UNREASONABLE, IS AN ADMINISTRATIVE
ONE.  APPROPRIATE CONSIDERATION OF IT MAY EXTEND TO MANY FACTS AND
CIRCUMSTANCES, INCLUDING THE INFLUENCE, IF ANY, OF THE DISCRIMINATION
UPON THE TRUSTEE'S LINE HAULS BETWEEN OTHER TEXAS PORTS AND POINTS IN
MEXICO, AND TO THE BROAD FIELD OF COMPETITION LEGITIMATELY AVAILABLE TO
CARRIERS, SHIPPERS AND COMMODITIES SEEKING TRANSPORTATION BETWEEN THE
UNITED STATES AND MEXICO.  AND THE ASCERTAINMENT OF APPROPRIATE REMEDY
FOR DISCRIMINATION CONDEMNED CALLS FOR ANOTHER ADMINISTRATIVE
DETERMINATION INVOLVING, IT MAY BE, INVESTIGATION OF NUMEROUS
CONDITIONS AFFECTING TRANSPORTATION BETWEEN THE TWO COUNTRIES.  AND AS
DETERMINATION OF REASONABLENESS OF PETITIONERS' REFUSAL TO FURNISH CARS
FOR THE TRANSPORTATION IN QUESTION AND THE PRESCRIBING OF CHANGE IN THE
SERVICE, IF ANY IS TO BE ORDERED, ARE PRIMARILY WITHIN THE REGULATORY
POWERS OF THE COMMISSION, THE DISTRICT COURT RIGHTLY HELD THAT IT WAS
WITHOUT JURISDICTION AND DISMISSED THE CAUSE.  TEXAS & PAC. RY. CO. V.
ABILENE COTTON OIL CO., 204 U.S. 426.  BALTIMORE & OHIO R. CO. V. U.S.
EX REL. PITCAIRN COAL CO., 215 U.S. 481, 493.  MORRISDALE COAL CO. V.
PENNSYLVANIA R. CO., 230 U.S. 304, 313.  TEXAS & PAC. RY. CO. V.
AMERICAN TIE CO., 234 U.S. 138, 146.  GREAT NORTHERN RY. CO. V.
MERCHANTS ELEVATOR CO., 259 U.S. 285, 291.  CF. PENNSYLVANIA R. CO. V.
CLARK COAL CO., 238 U.S. 456, 468.  THE DECREE OF THE CIRCUIT COURT OF
APPEALS MUST BE REVERSED. 

FN1  AS DEFINING JURISDICTION, RESPONDENTS RELY ON JUDICIAL CODE,
SEC. 24(8), 28 U.S.C. SEC. 41: "THE DISTRICT COURTS SHALL HAVE ORIGINAL
JURISDICTION  ...  (8) OF ALL SUITS AND PROCEEDINGS ARISING UNDER ANY
LAW REGULATING COMMERCE"; AND ON 49 U.S.C. SEC. 49: "THE DISTRICT
COURTS  ... SHALL HAVE JURISDICTION UPON THE RELATION OF ANY PERSON OR
...  CORPORATION, ALLEGING SUCH VIOLATION BY A COMMON CARRIER, OF ANY
OF THE PROVISIONS OF CHAPTER 1 OF THIS TITLE (INTERSTATE COMMERCE ACT),
AS PREVENTS THE RELATOR FROM HAVING INTERSTATE TRAFFIC MOVED BY SAID
COMMON CARRIER AT THE SAME RATES AS ARE CHARGED, OR UPON TERMS OR
CONDITIONS AS FAVORABLE AS THOSE GIVEN BY SAID COMMON CARRIER FOR LIKE
TRAFFIC UNDER SIMILAR CONDITIONS TO ANY OTHER SHIPPER, TO ISSUE A WRIT
...  OF MANDAMUS AGAINST SAID COMMON CARRIER, COMMANDING SUCH COMMON
CARRIER TO MOVE AND TRANSPORT THE TRAFFIC, OR TO FURNISH CARS OR OTHER
FACILITIES FOR TRANSPORTATION FOR THE PARTY APPLYING FOR THE WRIT  ...
" 

AS IMPOSING DUTIES FOR THE ENFORCEMENT OF WHICH THE PROCEEDINGS WERE
INSTITUTED, RESPONDENTS RELY ON THE INTERSTATE COMMERCE ACT, 49 U.S.C.
SEC. 1(3): 

"  ...  THE TERM 'TRANSPORTATION' AS USED IN THIS ACT SHALL INCLUDE
LOCOMOTIVES, CARS, AND OTHER VEHICLES  ...  IRRESPECTIVE OF OWNERSHIP
OR OF ANY CONTRACT, EXPRESS OR IMPLIED, FOR THE USE THEREOF, AND ALL
SERVICES IN CONNECTION WITH THE  ...  HANDLING OF PROPERTY
TRANSPORTED." 

SEC. 1(4)  "IT SHALL BE THE DUTY OF EVERY COMMON CARRIER  ...
ENGAGED IN THE TRANSPORTATION OF ...  PROPERTY TO PROVIDE AND FURNISH
SUCH TRANSPORTATION UPON REASONABLE REQUEST THEREFOR,  ... AND TO
PROVIDE REASONABLE FACILITIES FOR OPERATING THROUGH ROUTES  ...  " 

SEC. 1(11)  "IT SHALL BE THE DUTY OF EVERY CARRIER  ...  TO FURNISH
SAFE AND ADEQUATE CAR SERVICE AND TO ESTABLISH, OBSERVE, AND ENFORCE
JUST AND REASONABLE RULES, REGULATIONS, AND PRACTICES WITH RESPECT TO
CAR SERVICE; AND EVERY UNJUST AND UNREASONABLE RULE, REGULATION, AND
PRACTICE WITH RESPECT TO CAR SERVICE IS PROHIBITED AND DECLARED TO BE
UNLAWFUL." 

SEC. 6(1)  "EVERY COMMON CARRIER ...  SHALL FILE WITH THE COMMISSION
...  SCHEDULES SHOWING ALL THE RATES, FARES, AND CHARGES FOR
TRANSPORTATION BETWEEN DIFFERENT POINTS ON ITS OWN ROUTE AND BETWEEN
POINTS ON ITS OWN ROUTE AND POINTS ON THE ROUTE OF ANY OTHER CARRIER. 
...  IF NO JOINT RATE OVER THE THROUGH ROUTE HAS BEEN ESTABLISHED, THE
SEVERAL CARRIERS IN SUCH THROUGH ROUTE SHALL FILE  ...  THE SEPARATELY
ESTABLISHED RATES, FARES, AND CHARGES APPLIED TO THE THROUGH
TRANSPORTATION  ...  " 

FN2  CH. 192, HOUSE BILL 724, 41ST LEGISLATURE, REGULAR SESSION. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















LOWE BROS. CO. V. U.S., 304 U.S. 302 


NO. 864.  ARGUED APRIL 29, 1938.  - DECIDED MAY 16, 1938.  - 92 F.2D
905, AFFIRMED. 


1.  UNDER JUD.  CODE SEC. 24(20), AS AMENDED, A SUIT AGAINST THE
UNITED STATES TO RECOVER INTERNAL REVENUE TAXES WRONGFULLY COLLECTED,
IN EXCESS OF $10,000, WILL NOT LIE IN THE DISTRICT COURT UNLESS THE
OVERPAYMENT WAS COLLECTED BY A COLLECTOR WHO COULD HAVE BEEN SUED
PERSONALLY BUT WHO, WHEN THE PROCEEDING BEGAN, WAS DEAD OR OUT OF
OFFICE.  P. 304. 

2.  WHERE THE CLAIM AGAINST THE UNITED STATES WAS FOR AN OVERPAYMENT
FOR 1917, MORE THAN $10,000, ALLEGED TO HAVE RESULTED FROM THE ACTION
OF THE COMMISSIONER IN CREDITING AGAINST A BARRED DEFICIENCY OF THAT
YEAR AN OVERPAYMENT FOR 1918 - HELD THAT THE SUIT WOULD NOT LIE IN THE
DISTRICT COURT UNDER JUD.  CODE SEC. 24(20) AS AMENDED, SINCE THE
ACTION OF THE COMMISSIONER, IF A COLLECTION, WAS NOT THE ACTION OF THE
COLLECTOR AND OCCURRED IN A LATER YEAR IN WHICH NO OVERPAYMENT WAS
MADE.  P. 306. 

3.  APPLICATION OF AN OVERPAYMENT TO AN EARLIER DEFICIENCY IS
EFFECTED THROUGH THE COMMISSIONER'S APPROVAL OF THE SCHEDULE OF
OVERPAYMENTS.  THE CERTIFICATION OF THE OVERPAYMENT BY THE COLLECTOR TO
THE COMMISSIONER, A MERE MINISTERIAL ACT, COULD SUBJECT THE COLLECTOR
TO NO PERSONAL LIABILITY.  ID. 

LOWE BROTHERS CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 303 U.S. 633, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A SUIT TO RECOVER AN ALLEGED OVERPAYMENT OF TAXES FROM THE
UNITED STATES. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE DISTRICT COURTS OF THE
UNITED STATES HAVE JURISDICTION, UNDER SEC. 24(20) OF THE JUDICIAL
CODE, OF A SUIT BROUGHT AGAINST THE UNITED STATES TO RECOVER INCOME AND
EXCESS PROFITS TAXES IN AN AMOUNT IN EXCESS OF $10,000 WHEN THE
RECOVERY SOUGHT IS OF AN OVERPAYMENT OF TAXES FOR ONE YEAR, EFFECTED BY
CREDITING AGAINST A BARRED DEFICIENCY FOR THAT YEAR AN OVERPAYMENT FOR
ANOTHER YEAR. 

PETITIONER  FN1  OVERPAID INCOME AND EXCESS PROFITS TAXES FOR 1918. 
THE COMMISSIONER, ON MAY 15, 1924, SIGNED A SCHEDULE OF OVERPAYMENTS BY
WHICH HE APPROVED A CREDIT AS OF APRIL 24, 1924 OF A PART OF THE 1918
OVERPAYMENT, IN AN AMOUNT EXCEEDING $10,000, AGAINST A TAX DEFICIENCY
OF PETITIONER FOR 1917, THE COLLECTION OF WHICH WAS THEN BARRED BY THE
STATUTE OF LIMITATIONS.  THE COLLECTOR IN OFFICE IN 1924, WHEN THE
CREDIT WAS ALLOWED, HAVING RETIRED, PETITIONER BROUGHT THE PRESENT SUIT
AGAINST THE UNITED STATES, IN THE DISTRICT COURT OF SOUTHERN OHIO, TO
RECOVER THE AMOUNT OF THE CREDIT.  THE PETITION ALLEGES OVERPAYMENT OF
THE 1917 TAX BY REASON OF THE CREDIT, AND DEMANDS ITS RECOVERY. 
PETITIONER HAS NEITHER ALLEGED NOR PROVED ANY CLAIM FOR REFUND OF THE
1918 OVERPAYMENT, RECOVERY OF WHICH, WITHOUT SUCH CLAIM, WAS BARRED BY
LIMITATION. 

THE TRIAL COURT, CONSTRUING THE SUIT AS ONE TO RECOVER AN OVERPAYMENT
OF 1917 TAXES, AS PETITIONER CONCEDED IN OPEN COURT, GAVE JUDGMENT
DISMISSING THE PETITION ON THE GROUND THAT THE CREDIT OF THE 1918
OVERPAYMENT UPON THE BARRED DEFICIENCY FOR 1917 WAS NOT A PAYMENT OF
THE 1917 TAX SINCE THE CREDIT IS "VOID" UNDER THE APPLICABLE SECTIONS,
607 AND 609, OF THE REVENUE ACT OF 1928.  THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT AFFIRMED ON A DIFFERENT GROUND, HOLDING THAT THE DISTRICT
COURT WAS WITHOUT JURISDICTION, UNDER THE PROVISIONS OF SEC. 24(20) OF
THE JUDICIAL CODE, 28 U.S.C. SEC. 41(20), WHICH CONFERS JURISDICTION ON
THE DISTRICT COURT OF SUITS AGAINST THE UNITED STATES TO RECOVER TAXES
ERRONEOUSLY ASSESSED OR COLLECTED IN EXCESS OF $10,000, ONLY IF THE
COLLECTOR BY WHOM THE TAX WAS COLLECTED IS DEAD OR IS NOT IN OFFICE
WHEN THE SUIT IS BROUGHT.  92 F.2D 905.  WE GRANTED CERTIORARI, UPON A
PETITION PRESENTING THE SINGLE QUESTION OF THE JURISDICTION OF THE
DISTRICT COURT, IN ORDER TO RESOLVE AN ASSERTED CONFLICT BETWEEN THE
DECISION BELOW AND THAT OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT
IN UNITED STATES V. PIEDMONT MFG. CO., 89 F.2D 296. 

THE COURT OF APPEALS, FOLLOWING UNITED STATES V. PIEDMONT MFG. CO.,
SUPRA, AND ITS OWN DECISION IN UNITED STATES V. JOHN GALLAGHER CO., 83
F.2D 368, THOUGHT THAT THE CREDIT OF THE 1918 OVERPAYMENT OF THE 1917
TAX WAS NOT VOID, BUT VOIDABLE ONLY AT THE ELECTION OF THE TAXPAYER AND
WAS CONSEQUENTLY AN OVERPAYMENT OF 1917 TAXES FOR WHICH RECOVERY MIGHT
BE HAD IN A COURT HAVING JURISDICTION.  BUT FOLLOWING ITS OWN DECISION
IN UNITED STATES V. REEVES BROS. CO., 83 F.2D 121, AND THAT OF THE
COURT OF APPEALS FOR THE SECOND CIRCUIT IN MOSES V. UNITED STATES, 61
F.2D 791, IT HELD THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION
BECAUSE THE COLLECTION OF THE 1917 TAX, EFFECTED BY THE ALLOWANCE OF
THE CREDIT, WAS NOT MADE BY A COLLECTOR AND THUS DID NOT SATISFY THE
JURISDICTIONAL REQUIREMENT. 

THE COURT OF CLAIMS HAS JURISDICTION OF SUITS AGAINST THE UNITED
STATES BROUGHT TO RECOVER INTERNAL REVENUE TAXES ERRONEOUSLY COLLECTED
WITHOUT REGARD TO THE AMOUNT INVOLVED.  SEC. 145 J.C., 28 U.S.C., SEC.
250.  BEFORE THE AMENDMENT OF 1921, C. 136, 42 STAT. 311(CONTINUED BY
REVENUE ACT OF 1924, 43 STAT. 348, AND, SO FAR AS NOW MATERIAL, IN THE
REVENUE ACT OF 1926, 44 STAT. 121), SEC. 24(20) OF THE JUDICIAL CODE
GAVE JURISDICTION TO THE DISTRICT COURTS, CONCURRENT WITH THE COURT OF
CLAIMS, OF SUITS AGAINST THE UNITED STATES TO RECOVER "CLAIMS NOT
EXCEEDING TEN THOUSAND DOLLARS FOUNDED UPON  ...  ANY LAW OF CONGRESS
...  OR UPON ANY CONTRACT, EXPRESS OR IMPLIED, WITH THE GOVERNMENT OF
THE UNITED STATES  ..."  C. 231, 36 STAT. 1093.  BOTH BEFORE AND AFTER
THE AMENDMENT, DISTRICT COURTS ALSO HAD JURISDICTION OF SUITS AGAINST A
COLLECTOR OF INTERNAL REVENUE BROUGHT TO RECOVER, IN ANY AMOUNT,
INTERNAL REVENUE TAXES WHICH HE HAD ERRONEOUSLY COLLECTED.  SEC. 24(5)
J.C., 28 U.S.C. SEC. 41(5).  SUCH SUITS BROUGHT AGAINST THE COLLECTOR
SURVIVE HIS RETIREMENT FROM OFFICE AND DO NOT ABATE UPON HIS DEATH. 
PATTON V. BRADY, 184 U.S. 608; SMIETANKA V. INDIANA STEEL CO., 257 U.S.
1; UNION TRUST CO. V. WARDELL, 258 U.S. 537. 

BY THE AMENDMENT OF SEC. 24(20) THE JURISDICTION OF DISTRICT COURTS
WAS EXTENDED SO AS TO EMBRACE SUITS AGAINST THE UNITED STATES TO
RECOVER TAXES "EVEN IF THE CLAIM EXCEEDS $10,000, IF THE COLLECTOR OF
INTERNAL REVENUE BY WHOM SUCH TAX  ...  WAS COLLECTED IS DEAD OR IS NOT
IN OFFICE AS COLLECTOR OF INTERNAL REVENUE AT THE TIME SUCH SUIT OR
PROCEEDING IS COMMENCED."  SINCE THE SUIT ALLOWED AGAINST THE COLLECTOR
BEFORE THE AMENDMENT WAS BASED ON HIS PERSONAL LIABILITY, SAGE V.
UNITED STATES, 250 U.S. 33; SMIETANKA V. INDIANA STEEL CO., SUPRA, NO
SUCH SUIT WILL LIE UNLESS HE HAS COLLECTED THE TAX.  THE OBVIOUS
PURPOSE OF THE AMENDMENT WAS TO PERMIT A SUBSTITUTION OF A SUIT AGAINST
THE UNITED STATES FOR THE SUIT PREVIOUSLY ALLOWED AGAINST THE COLLECTOR
WHENEVER THE AMOUNT CLAIMED EXCEEDS $10,000 AND THE COLLECTOR IS OUT OF
OFFICE.  THIS IS MADE EVIDENT BY THE WORDS OF THE AMENDMENT WHICH
AUTHORIZE THE SUBSTITUTION ONLY WHEN THE COLLECTION IS MADE BY THE
COLLECTOR WHEN IN OFFICE. 

AS WE THINK IT PLAIN THAT NO SUIT COULD HAVE BEEN MAINTAINED AGAINST
THE COLLECTOR TO RECOVER THE ALLEGED OVERPAYMENT, IT FOLLOWS THAT THE
DISTRICT COURT WAS WITHOUT JURISDICTION TO ENTERTAIN THE PRESENT SUIT. 
IF THE 1917 TAX CAN BE SAID TO HAVE BEEN COLLECTED AT ALL, AS TO WHICH
WE EXPRESS NO OPINION, IT WAS COLLECTED BY THE ACTION OF THE
COMMISSIONER IN CREDITING AGAINST THE 1917 DEFICIENCY THE 1918
OVERPAYMENT.  IN 1924, THE YEAR OF THE CLAIMED OVERPAYMENT, THE
COLLECTOR RECEIVED NO OVERPAYMENT OF PETITIONER'S TAX FOR ANY YEAR.  IF
THE 1917 TAXES WERE THEN COLLECTED IT WAS BY VIRTUE OF THE APPLICATION
TO THE 1917 DEFICIENCY OF MONEYS ALREADY IN THE TREASURY.  THE
COLLECTOR WAS WITHOUT AUTHORITY TO MAKE SUCH APPLICATION.  IT WAS THE
COMMISSIONER'S APPROVAL OF THE SCHEDULE OF OVERPAYMENTS WHICH WAS
EFFECTIVE FOR THAT PURPOSE.  GIRARD TRUST CO. V. UNITED STATES, 270
U.S. 163, 170, 171; UNITED STATES V. SWIFT & CO., 282 U.S. 468.  THE
CERTIFICATION OF THE OVERPAYMENT BY THE COLLECTOR TO THE COMMISSIONER,
A MERE MINISTERIAL ACT, COULD SUBJECT THE COLLECTOR TO NO PERSONAL
LIABILITY. 

IT IS TRUE THAT UNDER THE STATUTES OF THE UNITED STATES THE COLLECTOR
IS RELIEVED FROM PERSONAL LIABILITY EXCEPT IN THE CASE WHERE THE
DISTRICT COURT IS OF OPINION THAT HE ACTED WITHOUT PROBABLE CAUSE, SAGE
V. UNITED STATES, SUPRA, 37, AND THAT SUCH SUITS AGAINST THE COLLECTOR
ARE COMMONLY BUT A MEANS OF COLLECTING THE OVERPAYMENT FROM THE UNITED
STATES.  MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373, 382.  BUT NO
STATUTE HAS ENLARGED THE COLLECTOR'S COMMON LAW LIABILITY TO SUIT, AND
WE CANNOT IGNORE THE WORDS OF THE AMENDMENT OF SEC. 24(20) WHICH, IN
PROVIDING FOR A SUIT AGAINST THE UNITED STATES IN LIEU OF ONE AGAINST
THE COLLECTOR, MAKE COLLECTION BY HIM THE SINE QUA NON OF
JURISDICTION. 

GRAHAM & FOSTER V. GOODCELL, 282 U.S. 409, DID NOT DEAL WITH THE
POINT HERE CONSIDERED.  THE ONLY ONE OF THE SEVERAL CASES DECIDED THERE
INVOLVING A CREDIT OF AN OVERPAYMENT FOR ONE YEAR AGAINST A DEFICIENCY
FOR ANOTHER, BOSTON PRESSED METAL CO. V. UNITED STATES, WAS A SUIT
BROUGHT IN THE COURT OF CLAIMS FOR LESS THAN $10,000.  AFFIRMED. 

FN1  AS PETITIONER STANDS IN THE PLACE OF ITS CORPORATE PREDECESSOR
BY VIRTUE OF A MERGER, AND AS THEIR RIGHTS AND INTERESTS IN THE PRESENT
SUIT MAY BE TREATED AS IDENTICAL, BOTH WILL BE REFERRED TO AS
"PETITIONER." 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :















ADAMS MFG. CO. V. STOREN, 304 U.S. 307 


NO. 641.  ARGUED MARCH 30, 31, 1938.  - DECIDED MAY 16, 1938.  - 212
IND. 343 - 7 N.E.2D 941, AFFIRMED IN PART - REVERSED IN PART. 


1.  INDIANA GROSS INCOME TAX ACT OF 1933 IMPOSES A TAX UPON GROSS
RECEIPTS FROM COMMERCE.  P. 309. 

2.  IT CAN NOT CONSTITUTIONALLY BE APPLIED TO THE GROSS RECEIPTS
DERIVED BY AN INDIANA CORPORATION FROM SALES IN OTHER STATES OF GOODS
MANUFACTURED BY IT IN INDIANA.  P. 311. 

3.  THE INDIANA ACT OF MAR. 9, 1903, WHICH DECLARED "THAT ALL BONDS,
NOTES AND OTHER EVIDENCES OF INDEBTEDNESS HEREAFTER ISSUED BY THE STATE
OF INDIANA OR BY MUNICIPAL CORPORATIONS WITHIN THE STATE UPON WHICH THE
SAID STATE OR THE SAID MUNICIPAL CORPORATIONS PAY INTEREST SHALL BE
EXEMPT FROM TAXATION," IS CONSIDERED IN CONNECTION WITH OTHER
PROVISIONS WITH WHICH IT IS ASSOCIATED IN THE CODIFICATION OF MARCH 11,
1919, AND WITH REGARD TO THE FACT THAT THE STATE HAD NO INCOME TAX
LAW.  SO CONSIDERING IT, THE CONSTRUCTION ADOPTED BY THE SUPREME COURT
OF INDIANA CONFINING THE EXEMPTION TO TAXATION AD VALOREM IS NOT
PLAINLY WRONG; CONSEQUENTLY, THE CLAIM THAT TO INCLUDE THE INTEREST
FROM SUCH OBLIGATIONS IN A TAX ON GROSS RECEIPTS WOULD IMPAIR THE
CONTRACT RIGHTS OF THOSE WHO BOUGHT IN RELIANCE ON THE EXEMPTION, MUST
FAIL.  P. 314. 

J. D. ADAMS MANUFACTURING CO. V. STOREN, CHIEF ADMINISTRATIVE OFFICER,
ET AL. 

APPEAL FROM THE SUPREME COURT OF INDIANA. 

APPEAL FROM THE REVERSAL OF A DECLARATORY JUDGMENT DECLARING A TAXING
ACT UNCONSTITUTIONAL IN CERTAIN PARTS, AS APPLIED TO THE APPELLANT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CALLED UPON TO DETERMINE WHETHER THE INDIANA
GROSS INCOME TAX ACT OF 1933 FN1  AS CONSTRUED AND APPLIED BURDENS
INTERSTATE COMMERCE AND IMPAIRS THE OBLIGATION OF CONTRACT IN
CONTRAVENTION OF ARTICLE I, SECS. 8 AND 10 OF THE CONSTITUTION OF THE
UNITED STATES. 

MEANS, INTER ALIA, GROSS RECEIPTS DERIVED FROM TRADES, BUSINESSES, OR
COMMERCE, AND RECEIPTS FROM INVESTMENT OF CAPITAL, INCLUDING INTEREST. 
RATES TO THE GROSS INCOME OF EVERY RESIDENT OF THE STATE AND THE GROSS
INCOME OF EVERY NON-RESIDENT DERIVED FROM SOURCES WITHIN THE STATE. 
BUSINESS CONDUCTED IN COMMERCE BETWEEN THIS STATE AND OTHER STATES OF
THE UNITED STATES, OR BETWEEN THIS STATE AND FOREIGN COUNTRIES, TO THE
EXTENT TO WHICH THE STATE OF INDIANA IS PROHIBITED FROM TAXING UNDER
THE CONSTITUTION OF THE UNITED STATES OF AMERICA." 

THE APPELLANT, AN INDIANA CORPORATION, MANUFACTURES ROAD MACHINERY
AND EQUIPMENT AND MAINTAINS ITS HOME OFFICE, PRINCIPAL PLACE OF
BUSINESS, AND FACTORY IN THE STATE.  IT SELLS EIGHTY PER CENT. OF ITS
PRODUCTS TO CUSTOMERS IN OTHER STATES AND FOREIGN COUNTRIES UPON ORDERS
TAKEN SUBJECT TO APPROVAL AT THE HOME OFFICE.  SHIPMENTS ARE MADE FROM
THE FACTORY AND PAYMENTS ARE REMITTED TO THE HOME OFFICE.  PURSUANT TO
A PRACTICE OF INVESTING SURPLUS FUNDS NOT IMMEDIATELY REQUIRED IN ITS
BUSINESS, THE APPELLANT OWNS AND RECEIVES INTEREST UPON BONDS AND NOTES
OF INDIANA MUNICIPAL CORPORATIONS WHICH, AT THE TIME THEY WERE ISSUED,
WERE DECLARED BY STATUTE TO BE EXEMPT FROM TAXATION. 

UPON THE ADOPTION OF THE ACT, THE APPELLANT FILED A PETITION IN A
STATE CIRCUIT COURT IN WHICH, AFTER RECITING THESE FACTS, IT ALLEGED
THAT THE APPELLEES WERE DEMANDING THAT IT REPORT AND PAY TAXES UPON
INCOME RECEIVED IN INTERSTATE AND FOREIGN COMMERCE AND INCOME RECEIVED
AS INTEREST UPON SECURITIES EXEMPTED FROM TAXATION BY THE STATE LAW AND
THAT THESE DEMANDS, TOGETHER WITH PENALTIES SPECIFIED IN THE STATUTE
FOR FAILURE TO MAKE RETURN AND PAY THE TAX, WOULD BE ENFORCED UNLESS
PREVENTED BY THE JUDGMENT OF THE COURT.  THE PRAYER WAS FOR A
DECLARATORY JUDGMENT THAT THE ACT, AS CONSTRUED AND APPLIED BY THE
APPELLEES, IS UNCONSTITUTIONAL.  AFTER ISSUE JOINED THE FACTS WERE
STIPULATED AND THE COURT MADE FINDINGS AND ENTERED A JUDGMENT IN FAVOR
OF THE APPELLANT.  THE SUPREME COURT OF INDIANA REVERSED THE JUDGMENT,
HOLDING THAT THE TAX DEMANDED DOES NOT UNCONSTITUTIONALLY BURDEN THE
INTERSTATE COMMERCE IN WHICH APPELLANT IS ENGAGED AND DOES NOT IMPAIR
THE OBLIGATION OF ANY CONTRACT OF THE STATE EXEMPTING MUNICIPAL
SECURITIES FROM TAXATION.  FN2 

1.  WILL THE THREATENED IMPOSITION OF THE TAX ON THE GROSS INCOME
FROM THE APPELLANT'S SALES IN INTERSTATE COMMERCE CONTRAVENE ARTICLE I,
SEC. 8 OF THE CONSTITUTION, WHICH REPOSES IN CONGRESS POWER TO REGULATE
INTERSTATE AND FOREIGN COMMERCE? 

THE TITLE OF THE ACT DECLARES THAT IT IS A REVENUE MEASURE IMPOSING A
TAX UPON "THE RECEIPT OF GROSS INCOME."  THE STATUTE DEFINES GROSS
INCOME AS MEANING THE GROSS RECEIPTS DERIVED FROM TRADES, BUSINESSES,
OR COMMERCE.  THE SUPREME COURT OF INDIANA IN ITS OPINION STATES:  "THE
STATUTE HERE UNDER CONSIDERATION LEVIES A TAX UPON ALL WHO ARE
DOMICILED WITHIN THE STATE, BASED UPON THE PRIVILEGE OF DOMICILE, AND
TRANSACTING BUSINESS, AND RECEIVING GROSS INCOME, WITHIN THE STATE, AND
MEASURED BY THE AMOUNT OF GROSS INCOME."  FN3 

THE TAX IS NOT AN EXCISE FOR THE PRIVILEGE OF DOMICILE ALONE, SINCE
IT IS LEVIED UPON THE GROSS INCOME OF NONRESIDENTS FROM SOURCES WITHIN
THE STATE.  NOR IS IT FOR THE TRANSACTION OF BUSINESS, SINCE IN MANY
INSTANCES IT HITS THE RECEIPT OF INCOME BY ONE WHO CONDUCTS NO
BUSINESS.  IT IS NOT A CHARTER FEE OR A FRANCHISE FEE MEASURED BY THE
VALUE OF GOODS MANUFACTURED OR THE AMOUNT OF SALES, SUCH AS THE STATE
WOULD BE COMPETENT TO DEMAND FROM DOMESTIC OR FOREIGN CORPORATIONS FOR
THE PRIVILEGE CONFERRED.  FN4  IT IS NOT AN EXCISE UPON THE PRIVILEGE
OF PRODUCING OR MANUFACTURING WITHIN THE STATE, MEASURED BY VOLUME OF
PRODUCTION OR THE AMOUNT OF SALES.  FN5  IT IS NOT A TAX IN LIEU OF AD
VALOREM TAXES UPON PROPERTY, WHICH WOULD BE INOFFENSIVE TO THE COMMERCE
CLAUSE,  FN6  SINCE THE APPELLANT PAYS LOCAL AND STATE TAXES UPON ITS
PROPERTY WITHIN THE STATE AND IT APPEARS THAT THESE, AS RESPECTS
APPELLANT AND OTHERS SIMILARLY SITUATED, HAVE NOT BEEN REDUCED.  THE
ACT, MOREOVER, IS SILENT AS TO THE TAX BEING IN LIEU OF PROPERTY
TAXES.  THE OPINION OF THE SUPREME COURT SUGGESTS THAT THE STATUTE WAS
ADOPTED AS PART OF A SCHEME FOR THE REDUCTION OF LOCAL PROPERTY TAXES
AND THE SUBSTITUTION OF A GROSS INCOME TAX, BUT, AS APPELLANT POINTS
OUT, PROVISION FOR REDUCTION OF PROPERTY TAXES WAS MADE BY LEGISLATION
PASSED IN 1932.  FN7 

THE REGULATIONS ISSUED BY THE DEPARTMENT OF THE TREASURY, PURSUANT TO
AUTHORITY GRANTED BY THE ACT, TREAT THE EXACTION AS A GROSS RECEIPTS
TAX; FN8  AND THE ATTORNEY GENERAL SAYS IN HIS BRIEF THAT IT IS A
PRIVILEGE TAX UPON THE RECEIPT OF GROSS INCOME.  WE THINK THIS A
CORRECT DESCRIPTION. 

WE CONCLUDE THAT THE TAX IS WHAT IT PURPORTS TO BE, - A TAX UPON
GROSS RECEIPTS FROM COMMERCE.  APPELLANT'S SALES TO CUSTOMERS IN OTHER
STATES AND ABROAD ARE INTERSTATE AND FOREIGN COMMERCE.  THE ACT, AS
CONSTRUED, IMPOSES A TAX OF ONE PER CENT. ON EVERY DOLLAR RECEIVED FROM
THESE SALES. 

THE VICE OF THE STATUTE AS APPLIED TO RECEIPTS FROM INTERSTATE SALES
IS THAT THE TAX INCLUDES IN ITS MEASURE, WITHOUT APPORTIONMENT,
RECEIPTS DERIVED FROM ACTIVITIES IN INTERSTATE COMMERCE; AND THAT THE
EXACTION IS OF SUCH A CHARACTER THAT IF LAWFUL IT MAY IN SUBSTANCE BE
LAID TO THE FULLEST EXTENT BY STATES IN WHICH THE GOODS ARE SOLD AS
WELL AS THOSE IN WHICH THEY ARE MANUFACTURED.  INTERSTATE COMMERCE
WOULD THUS BE SUBJECTED TO THE RISK OF A DOUBLE TAX BURDEN TO WHICH
INTRASTATE COMMERCE IS NOT EXPOSED, AND WHICH THE COMMERCE CLAUSE
FORBIDS.  FN9  WE HAVE REPEATEDLY HELD THAT SUCH A TAX IS A REGULATION
OF, AND A BURDEN UPON, INTERSTATE COMMERCE PROHIBITED BY ARTICLE I,
SEC. 8 OF THE CONSTITUTION.  FN10  THE OPINION OF THE STATE SUPREME
COURT STRESSES THE GENERALITY AND NONDISCRIMINATORY CHARACTER OF THE
EXACTION, BUT IT IS SETTLED THAT THIS WILL NOT SAVE THE TAX IF IT
DIRECTLY BURDENS INTERSTATE COMMERCE.  FN11 

THE STATE COURT AND THE APPELLEES RELY STRONGLY UPON AMERICAN MFG.
CO. V. ST. LOUIS, 250 U.S. 459, AS SUPPORTING THE TAX ON APPELLANT'S
TOTAL GROSS RECEIPTS DERIVED FROM COMMERCE WITH CITIZENS OF THE STATE
AND THOSE OF OTHER STATES OR FOREIGN COUNTRIES.  BUT THAT CASE DEALT
WITH A MUNICIPAL LICENSE FEE FOR PURSUING THE OCCUPATION OF A
MANUFACTURER IN ST. LOUIS.  THE EXACTION WAS NOT AN EXCISE LAID UPON
THE TAXPAYER'S SALES OR UPON THE INCOME DERIVED FROM SALES.  THE TAX ON
THE PRIVILEGE FOR THE ENSUING YEAR WAS MEASURED BY A PERCENTAGE OF THE
PAST YEAR'S SALES.  FN12 THE TAXPAYER HAD DURING THE PRECEDING YEAR
REMOVED SOME OF THE GOODS MANUFACTURED TO A WAREHOUSE IN ANOTHER STATE
AND, UPON SALE, DELIVERED THEM FROM THE WAREHOUSE.  IT CONTENDED THAT
THE CITY WAS WITHOUT POWER TO INCLUDE THESE SALES IN THE MEASURE OF THE
TAX FOR THE COMING YEAR.  THE COURT HELD, HOWEVER, THAT THE TAX WAS
UPON THE PRIVILEGE OF MANUFACTURING WITHIN THE STATE AND IT WAS
PERMISSIBLE TO MEASURE THE TAX BY THE SALES PRICE OF THE GOODS PRODUCED
RATHER THAN BY THEIR VALUE AT THE DATE OF MANUFACTURE.  IF THE TAX
THERE UNDER CONSIDERATION HAD BEEN A SALES TAX THE CITY COULD NOT HAVE
MEASURED IT BY SALES CONSUMMATED IN ANOTHER STATE.  THAT THE TAX IN THE
PRESENT CASE IS NOT A TAX ON THE MANUFACTURE BUT A TAX ON GROSS SALES,
IS EVIDENT FROM THE REGULATIONS PROMULGATED PURSUANT TO THE ACT AND
CONFIRMED BY AN AMENDMENT OF THE STATUTE ADOPTED IN 1937 UNDER WHICH,
IF THE APPELLANT HAD SHIPPED ITS PRODUCTS TO ANOTHER STATE AND THENCE
SOLD THEM (AS DID THE AMERICAN MANUFACTURING COMPANY), THE RECEIPTS
FROM THE SALES WOULD BE EXEMPT FROM THE GROSS INCOME REACHED BY THE
ACT.  FN13 

SO FAR AS THE SALE PRICE OF THE GOODS SOLD IN INTERSTATE COMMERCE
INCLUDES COMPENSATION FOR A PURELY INTRASTATE ACTIVITY, THE MANUFACTURE
OF THE GOODS SOLD, IT MAY BE REACHED FOR LOCAL TAXATION BY A TAX ON THE
PRIVILEGE OF MANUFACTURING, MEASURED BY THE VALUE OF THE GOODS
MANUFACTURED N14, OR BY OTHER PERMISSIBLE FORMS OF LEVY UPON THE
INTRASTATE TRANSACTION.  FN15  IT IS BECAUSE THE TAX, FORBIDDEN AS TO
INTERSTATE COMMERCE, REACHES INDISCRIMINATELY AND WITHOUT
APPORTIONMENT, THE GROSS COMPENSATION FOR BOTH INTERSTATE COMMERCE AND
INTRASTATE ACTIVITIES THAT IT MUST FAIL IN ITS ENTIRETY SO FAR AS
APPLIED TO RECEIPTS FROM SALES INTERSTATE. 

WE HOLD THAT, AS RESPECTS THE APPELLANT'S SALES OF ITS MANUFACTURED
PRODUCT IN INTERSTATE AND FOREIGN COMMERCE, THE STATUTE CANNOT
CONSTITUTIONALLY BE ENFORCED. 

2.  WILL THE IMPOSITION OF THE TAX IN RESPECT OF INTEREST ON THE
BONDS OF INDIANA MUNICIPALITIES VIOLATE ARTICLE I, SEC. 10 OF THE
CONSTITUTION OF THE UNITED STATES? 

BY AN ACT OF MARCH 9, 1903, ENTITLED "AN ACT TO EXEMPT FROM TAXATION
ALL BONDS, NOTES AND OTHER EVIDENCES OF INTEREST-BEARING DEBT ISSUED BY
THE STATE OR BY MUNICIPAL CORPORATIONS," IT WAS PROVIDED "THAT ALL
BONDS, NOTES AND OTHER EVIDENCES OF INDEBTEDNESS HEREAFTER ISSUED BY
THE STATE OF INDIANA OR BY MUNICIPAL CORPORATIONS WITHIN THE STATE UPON
WHICH THE SAID STATE OR THE SAID MUNICIPAL CORPORATIONS PAY INTEREST
SHALL BE EXEMPT FROM TAXATION."  N16  BY AN ACT OF MARCH 11, 1919, TAX
LAWS OF THE STATE WERE CODIFIED AND THE ACT OF 1903 WAS INCORPORATED
WITHOUT CHANGE AS CLAUSE TWENTIETH OF SEC. 5 OF THE CODIFICATION N17. 
THE SECTION HAS SINCE BEEN AMENDED BUT THE TWENTIETH CLAUSE REMAINED
UNCHANGED AT THE DATE OF THE PASSAGE OF THE GROSS INCOME TAX ACT OF
1933. 

THE APPELLANT INSISTS THAT THE EXEMPTION GRANTED IN THE ACTS OF 1903
AND 1919, CONSTITUTES A CONTRACT WITH PURCHASERS OF MUNICIPAL
SECURITIES THE OBLIGATION OF WHICH IS UNCONSTITUTIONALLY IMPAIRED BY
THE ATTEMPT TO TAX THE INTEREST THEY YIELD.  THE STATE REPLIES THAT THE
ACTS WERE NOT INTENDED TO CREATE A CONTRACT AND DID NOT IN FACT DO SO,
BUT THAT IF THEY DID, THE COVENANT DID NOT EMBRACE INTEREST PAYABLE ON
MUNICIPAL OBLIGATIONS BUT ONLY AD VALOREM TAXATION UPON THEM. 

WHEN THE EXEMPTION LAWS WERE ADOPTED THE STATE HAD NO INCOME TAX
LAW.  WHATEVER MAY HAVE BEEN THE BACKGROUND AGAINST WHICH THE ACT OF
1903 IS TO BE CONSTRUED, ITS SETTING, AS A PORTION OF THE TAX
CODIFICATION OF 1919, IS SIGNIFICANT.  THE LATTER DEALS WITH TWO FORMS
OF TAXATION,  - POLL TAXES AND PROPERTY TAXES.  IT EMBODIES A
COMPREHENSIVE SCHEME OF ANNUAL ASSESSMENT OF REAL AND PERSONAL PROPERTY
OF INDIVIDUALS, PARTNERSHIPS, AND CORPORATIONS, INCLUDING PUBLIC
UTILITIES; MAKES PROVISION FOR A RETURN BY TAXPAYERS OF COMPLETE
INVENTORIES OF PROPERTY AND, IN THE CASE OF CORPORATIONS, OF THE EXCESS
VALUE OF CAPITAL STOCK AND SURPLUS AND OF THE VALUE OF FRANCHISES OR
PRIVILEGES ENJOYED; AND PROVIDES FOR ASSESSMENT BY PUBLIC OFFICIALS FOR
THE PURPOSE OF THE APPLICATION OF A RATE AD VALOREM BY VARIOUS PUBLIC
BODIES.  THE STATUTE HAS NOTHING TO SAY WITH RESPECT TO LICENSE,
OCCUPATION, PRIVILEGE OR OTHER EXCISE TAXES.  IN SEC. 25 IT PROVIDES
THAT "WHERE BONDS OR STOCKS ARE NOW OR MAY HEREAFTER BE EXEMPTED FROM
TAXATION, THE ACCRUED INTEREST ON SUCH BONDS OR DIVIDENDS ON SUCH STOCK
SHALL BE LISTED AND ASSESSED, UNLESS OTHERWISE EXEMPTED, WITHOUT REGARD
TO THE TIME WHEN THE SAME IS TO BE PAID."  THUS THE LEGISLATURE
DISTINGUISHED BETWEEN THE BONDS THEMSELVES AND THE INTEREST ACCRUED
UPON THEM AS SEPARATE SUBJECTS OF ASSESSMENT AND AD VALOREM TAXATION. 
THE SUPREME COURT OF INDIANA HAS CONSISTENTLY HELD THAT EXEMPTIONS FROM
TAXATION ARE NOT FAVORED BUT ARE TO BE STRICTLY CONSTRUED.  FN18 

IN THE LIGHT OF THE FOREGOING FACTS WE ARE OF OPINION THAT THE CASE
IS CONTROLLED BY HALE V. IOWA STATE BOARD, 302 U.S. 95.  WE ARE UNABLE,
THEREFORE, TO HOLD THAT THE DECISION OF THE SUPREME COURT IS PLAINLY
WRONG, EVEN UPON THE ASSUMPTION THAT IN ADOPTING THE STATUTORY
EXEMPTION THE LEGISLATURE INTENDED TO, AND IN FACT DID, CONTRACT WITH
PURCHASERS OF MUNICIPAL BONDS. 

AS RESPECTS THE TAX DEMANDED ON APPELLANT'S GROSS INCOME FROM ITS
BUSINESS IN INTERSTATE COMMERCE, THE JUDGMENT IS REVERSED AND, AS
RESPECTS THE TAX ON INTEREST RECEIVED FROM OBLIGATIONS ISSUED BY
MUNICIPALITIES OF THE STATE, THE JUDGMENT IS AFFIRMED.  THE CAUSE WILL
BE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED IN PART; AFFIRMED IN PART. 

FN1  INDIANA ACTS 1933, C. 50; IND. STAT. ANN. (BURNS) SEC. 64-2601
FF. 

FN2  212 IND. 343; 7 N.E.(2D) 941.    FN3  COMPARE MILES V.
DEPARTMENT OF TREASURY, 209 IND. 172, 188; 199 N.E. 372, 379. 

FN4  COMPARE MATSON NAVIGATION CO. V. STATE BOARD, 297 U.S. 441,
444. 

FN5  COMPARE AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459; OLIVER
IRON CO. V. LORD, 262 U.S. 172; HOPE NATURAL GAS CO. V. HALL, 274 U.S.
284; UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165. 

FN6  COMPARE POSTAL TELEGRAPH CABLE CO. V. ADAMS, 155 U.S. 688;
UNITED STATES EXPRESS CO. V. MINNESOTA, 223 U.S. 335:  PULLMAN CO. V.
RICHARDSON, 261 U.S. 330. 

FN7  INDIANA ACTS OF 1932, C. 10, P. 17.    FN8  ARTICLE 2 OF THE
REGULATIONS STATES "THE GROSS INCOME TAX OF 1933 IS PRIMARILY AND IN
EFFECT A GROSS RECEIPTS TAX  ...  " ARTICLE 16 STATES THAT THE "TAX
SHALL APPLY TO AND BE LEVIED AND COLLECTED UPON ALL GROSS INCOME
RECEIVED  ...  " 

FN9  SEE WESTERN LIVESTOCK V. BUREAU OF REVENUE, 303 U.S. 250. 

FN10  COOK V. PENNSYLVANIA, 97 U.S. 566; FARGO V. MICHIGAN, 121 U.S.
230; PHILADELPHIA & SOUTHERN S.S. CO. V. PENNSYLVANIA, 122 U.S. 326;
GALVESTON, H. & S.A. RY. CO. V. TEXAS, 210 U.S. 217; MEYER V. WELLS,
FARGO & CO., 223 U.S. 298; MINNESOTA RATE CASES, 230 U.S. 352, 400;
CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292; UNITED STATES GLUE CO.
V. OAK CREEK, 247 U.S. 321, 328; NEW JERSEY TELEPHONE CO. V. TAX BOARD,
280 U.S. 338, 349; FISHER'S BLEND STATION V. STATE TAX COMMISSION, 297
U.S. 650, 655; PUGET SOUND STEVEDORING CO. V. TAX COMMISSION, 302 U.S.
90; WESTERN LIVESTOCK V. BUREAU OF REVENUE, 303 U.S. 250. 

FN11  CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292; SPALDING & BROS.
V. EDWARDS, 262 U.S. 66, 69; COONEY V. MOUNTAIN STATES TEL. CO., 294
U.S. 384, 393. 

FN12  COMPARE BASS, RATCLIFF & GRETTON V. STATE TAX COMM'N, 266 U.S.
271, 280; EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, 387-8. 

FN13  REGULATIONS 193(4) "PERSONS RESIDENT AND/OR DOMICILED IN
INDIANA WHO ARE ENGAGED IN BUSINESS, THE LEGAL SITUS AND LOCATION OF
WHICH IS IN STATES OTHER THAN INDIANA, AND THE ACTIVITIES OF SUCH
BUSINESS ARE CARRIED ON IN STATES OTHER THAN INDIANA, WILL NOT BE
REQUIRED TO PAY TAX UPON THE GROSS RECEIPTS THEREFROM." 

ACTS OF INDIANA, 1937, C. 117, P. 609:  "THAT WITH RESPECT TO
INDIVIDUALS RESIDENT IN INDIANA AND CORPORATIONS INCORPORATED UNDER THE
LAWS OF INDIANA AUTHORIZED TO DO AND DOING BUSINESS IN ANY OTHER STATE
AND/OR FOREIGN COUNTRY, THE TERM 'GROSS INCOME' SHALL NOT INCLUDE GROSS
RECEIPTS RECEIVED FROM SOURCES OUTSIDE THE STATE OF INDIANA IN CASES
WHERE SUCH GROSS RECEIPTS ARE RECEIVED FROM A TRADE OR BUSINESS
SITUATED AND REGULARLY CARRIED ON AT A LEGAL SITUS OUTSIDE THE STATE OF
INDIANA, OR FROM ACTIVITIES INCIDENT THERETO ...  " 

FN14  OLIVER IRON MINING CO. V. LORD, 262 U.S. 172; HOPE NATURAL GAS
CO. V. HALL, 274 U.S. 284; AMERICAN MFG. CO. V. ST. LOUIS, SUPRA. 

FN15  UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165; FEDERAL COMPRESS
CO. V. MCLEAN, 291 U.S. 17; CHASSANIOL V. GREENWOOD, 291 U.S. 584. 

FN16  ACTS OF INDIANA, 1903, C. CLXXIX, P. 322. 

FN17  ACTS OF INDIANA, 1919, C. 59, SEC. 5(TWENTIETH) P. 203. 

FN18  SOUTH BEND V. UNIVERSITY, 69 IND. 344, 348; READ V. YEAGER, 104
IND. 195, 199; 3 N.E. 856. 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE CHALLENGED JUDGMENT
SHOULD BE REVERSED IN TOTO. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING IN PART. 

THE INDIANA STATUTE OF 1933 HERE INVALIDATED IMPOSES "A TAX, MEASURED
BY THE AMOUNT OR VOLUME OF GROSS INCOME,  ...  UPON ALL RESIDENTS OF
THE STATE OF INDIANA, AND UPON THE GROSS INCOME DERIVED FROM SOURCES
WITHIN THE STATE OF INDIANA, OF ALL PERSONS AND  ...  COMPANIES,  ...
WHO ARE NOT RESIDENTS OF  ...  INDIANA, BUT ARE ENGAGED IN BUSINESS IN
INDIANA."  THE TAX IS GENERAL IN EFFECT THROUGHOUT THE ENTIRE STATE,
APPLYING TO ALL WHO DO BUSINESS AND WHO RECEIVE ANNUAL INCOMES IN THE
STATE ABOVE $1,000.00(WITH MINOR EXCEPTIONS).  IT FALLS UNIFORMLY UPON
ALL SUCH GROSS INCOMES WHETHER DERIVED FROM INTERSTATE OR INTRASTATE
BUSINESS OR FROM INVESTMENTS, INTEREST OR SERVICES.  FN1  THERE IS NO
CONTENTION THAT THE STATUTE WAS INSPIRED BY ANY SPIRIT OF ANTAGONISM OR
HOSTILITY TO INTERSTATE COMMERCE OR THAT IT DISCRIMINATES AGAINST
INTERSTATE COMMERCE IN AMOUNT OR METHOD OF APPLICATION. 

CONCURRENTLY WITH THE PASSAGE OF THIS REVENUE ACT, THE INDIANA
LEGISLATURE LIMITED THE TAX THAT COULD BE IMPOSED UPON OTHER FORMS OF
PROPERTY BY THE STATE OR ANY "TAXING UNITS WITHIN THE STATE."  FN2  THE
SUPREME COURT OF INDIANA IN THE OPINION BELOW  FN3  SAID: 

"LEGISLATIVE HISTORY INDICATES THAT ONE OF THE PURPOSES OF THE GROSS
INCOME TAX LAW WAS TO REDISTRIBUTE GOVERNMENTAL BURDENS AND RELIEVE
PROPERTY OF A TAX BURDEN WHICH WAS THOUGHT TO BE TOO GREAT."  INDIANA
PASSED THIS GROSS INCOME TAX LAW AT A TIME WHEN DEPRESSED ECONOMIC
CONDITIONS WERE CAUSING THE FISCAL POLICIES OF MANY STATES TO TURN
TOWARD SIMILAR LEGISLATION.  FN4  SERIOUS FINANCIAL DIFFICULTIES OF THE
STATES STIMULATED EFFORTS TO FIND NEW SOURCES OF TAXATION, AND THE
WIDESPREAD BELIEF THAT PROPERTY WAS BEARING AN UNFAIR BURDEN OF TAXES
ALSO SUBSTANTIALLY CONTRIBUTED TO THE LEVYING OF THESE NEW TAXES.  FN5 

APPELLANT IS AN INDIANA CORPORATION ENGAGED IN THE BUSINESS OF
MANUFACTURING AND SELLING ROAD MACHINERY.  ALL OF THE MACHINERY IS
MANUFACTURED IN INDIANA.  ITS OFFICE, ONLY PLANT AND ALL ITS PROPERTIES
ARE LOCATED IN INDIANA.  ITS PRODUCTS ARE SOLD TO ULTIMATE PURCHASERS
IN INDIANA AND OTHER STATES BY INDEPENDENT DISTRIBUTORS OR THROUGH
SALES AGENTS OF APPELLANT.  ALL SALES MUST BE APPROVED BY, AND ALL
PAYMENTS MADE TO APPELLANT'S OFFICE IN INDIANA.  WHILE APPELLANT IS
THUS ENGAGED IN INTERSTATE COMMERCE, OBVIOUSLY, A MAJOR PORTION OF ITS
ACTIVITIES TAKES PLACE IN INDIANA. 

THE PREVAILING JUDGMENT HERE IS THAT INDIANA CANNOT CONSTITUTIONALLY
IMPOSE THIS TAX MEASURED BY THE GROSS INCOME RECEIVED BY APPELLANT IN
INDIANA FROM THAT SUBSTANTIAL PART OF ITS PRODUCTS (MANUFACTURED IN
INDIANA) SOLD TO PURCHASERS IN OTHER STATES.  IT IS HELD THAT THE TAX,
THUS APPLIED, IS PROHIBITED BY SEC. 8, ARTICLE 1 OF THE FEDERAL
CONSTITUTION WHICH PROVIDES THAT 

"THE CONGRESS SHALL HAVE POWER  ...  TO REGULATE COMMERCE AMONG THE
SEVERAL STATES,  ...  " 

THE INDIANA TAX IS NOT INVALIDATED ON THE GROUND THAT IT VIOLATES ANY
LAW PASSED BY CONGRESS UNDER THIS CONSTITUTIONAL POWER TO REGULATE
INTERSTATE COMMERCE. 

THIS POWER TO REGULATE COMMERCE AMONG THE STATES "LIKE ALL OTHERS
VESTED IN CONGRESS, IS COMPLETE IN ITSELF, MAY BE EXERCISED TO ITS
UTMOST EXTENT, AND ACKNOWLEDGES NO LIMITATIONS, OTHER THAN ARE
PRESCRIBED IN THE CONSTITUTION."  FN6 

THE QUESTION, THEREFORE, IS WHETHER - IN THE ABSENCE OF REGULATORY
LEGISLATION BY CONGRESS CONDEMNING STATE TAXES ON GROSS RECEIPTS FROM
INTERSTATE COMMERCE - THE COMMERCE CLAUSE, OF ITSELF, PROHIBITS ALL
SUCH STATE TAXES, AS "REGULATIONS" OF INTERSTATE COMMERCE, EVEN THOUGH
GENERAL, UNIFORM AND NON-DISCRIMINATORY. 

ALL STATE TAXES ON GROSS RECEIPTS FROM INTERSTATE COMMERCE DO NOT
DISCRIMINATE AGAINST, OR IMPOSE EXTRAORDINARY BURDENS UPON, THAT
COMMERCE.  THOSE THAT DO NOT, DO NO MORE THAN IMPOSE A NORMAL BURDEN OF
GOVERNMENT UPON THAT COMMERCE.  ON THE OTHER HAND, SOME STATE GROSS
INCOME TAXES MAY BE DESIGNED OR APPLIED SO AS SERIOUSLY TO IMPEDE THE
FREEDOM OF INTERSTATE COMMERCE.  IF INTERSTATE COMMERCE SHOULD BE SO
IMPEDED, CONGRESS MIGHT - UNDER ITS COMMERCE POWER - FIND IT "NECESSARY
AND PROPER" TO CONDEMN ALL STATE TAXES ON GROSS RECEIPTS, IN ORDER TO
"CARRY INTO EXECUTION" ITS GRANTED POWER TO REGULATE AND PROTECT
INTERSTATE COMMERCE.  FN7  WE ARE NOT HERE CONFRONTED WITH SUCH A
CONGRESSIONAL ENACTMENT.  SHOULD THE INDIANA LAW, AND ALL STATE TAXES
ON GROSS RECEIPTS FROM INTERSTATE COMMERCE, AS SUCH - IN THE ABSENCE OF
SUCH ENACTMENT - BE CONDEMNED AS A REGULATION OF INTERSTATE COMMERCE IN
THE CONSTITUTIONAL SENSE? 

"TAXATION" AND "REGULATION" ARE NOT SYNONYMOUS; ALL STATE, COUNTY OR
CITY TAXES THAT AFFECT INTERSTATE COMMERCE DO NOT "REGULATE" IT IN THE
CONSTITUTIONAL SENSE; UNQUESTIONABLY, TAXES CAN BE LEVIED FOR REVENUE
ONLY.  AS POINTED OUT BY MR. JUSTICE HOLMES IN GALVESTON, H. & S.A. CO.
V. TEXAS, 210 U.S. 217, 225, INVOLVING A STATE TAX WHICH WAS NOT
GENERAL BUT WAS LEVIED ONLY ON GROSS RECEIPTS LAID ON RAILROADS: 

"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."  THE
MAJORITY THERE FOUND THAT THE TAX ON INTERSTATE TRANSPORTATION VIOLATED
THE COMMERCE CLAUSE.  THE DISSENT, APPLYING THE SIMILAR PRINCIPLE THAT
EVERY GROSS RECEIPTS TAX IS NOT NECESSARILY A REGULATION, INSISTED THAT
THE PARTICULAR GROSS RECEIPTS TAX INVOLVED DID NOT "ATTEMPT TO REGULATE
COMMERCE AMONG THE STATES" AND SHOULD NOT "BE TAKEN AS A TAX ON
INTERSTATE COMMERCE IN THE SENSE OF THE CONSTITUTION; FOR ITS OPERATION
ON INTERSTATE COMMERCE IS ONLY INCIDENTAL, NOT DIRECT."  BOTH OPINIONS
RECOGNIZED A DISTINCTION BETWEEN TAXES FOR REVENUE, WHICH INCIDENTALLY
AFFECT INTERSTATE COMMERCE, AND OTHER TAXES WHICH DIRECTLY REGULATE
COMMERCE.  MORE RECENTLY, THIS COURT HAS SAID IN WESTERN LIVE STOCK V.
BUREAU OF REVENUE, 303 U.S. 250, 259: 

"RECOGNIZING THAT NOT EVERY LOCAL LAW THAT AFFECTS COMMERCE IS A
REGULATION OF IT IN A CONSTITUTIONAL SENSE, THIS COURT HAS HELD THAT
LOCAL TAXES MAY BE LAID ON PROPERTY USED IN THE COMMERCE; THAT ITS
VALUE FOR TAXATION MAY INCLUDE THE AUGMENTATION ATTRIBUTABLE TO THE
COMMERCE IN WHICH IT IS EMPLOYED; AND, FINALLY, THAT THE EQUIVALENT OF
THAT VALUE MAY BE COMPUTED BY A MEASURE RELATED TO GROSS RECEIPTS WHEN
A TAX OF THE LATTER IS SUBSTITUTED FOR A TAX OF THE FORMER."  FN8 

MANY CASES RELIED ON TO SUPPORT THE PREVAILING JUDGMENT HERE HOLD
THAT STATE GROSS RECEIPTS TAXES IMPOSED ON INTERSTATE "TRANSPORTATION"
VIOLATE THE COMMERCE CLAUSE.  WHILE THIS CONSTRUCTION OF THE COMMERCE
CLAUSE HAD BEEN PREVIOUSLY CONSIDERED, IT WAS FULLY CLARIFIED AND
DELIMITED IN PHILADELPHIA & SOU.  S.S. CO. V. PENNSYLVANIA, 122 U.S.
326, 341, 342, 344, 345, AND THAT DECISION HAS SERVED AS THE
AUTHORITATIVE BASIS FOR SUBSEQUENT DECISIONS: 

"THE TAX IN THE PRESENT CASE IS LAID UPON THE GROSS RECEIPTS FOR
TRANSPORTATION AS SUCH.  THOSE RECEIPTS ARE FOLLOWED AND CAUSED TO BE
ACCOUNTED FOR BY THE COMPANY, DOLLAR FOR DOLLAR.  IT IS THOSE SPECIFIC
RECEIPTS, OR THE AMOUNT THEREOF, (WHICH IS THE SAME THING,) FOR WHICH
THE COMPANY IS CALLED UPON TO PAY THE TAX.  THEY ARE TAXED, NOT ONLY
BECAUSE THEY ARE MONEY, OR ITS VALUE, BUT BECAUSE THEY WERE RECEIVED
FOR TRANSPORTATION.  NO DOUBT A SHIPOWNER, LIKE ANY OTHER CITIZEN, MAY
BE PERSONALLY TAXED FOR THE AMOUNT OF HIS PROPERTY OR ESTATE, WITHOUT
REGARD TO THE SOURCE FROM WHICH IT WAS DERIVED, WHETHER FROM COMMERCE,
OR BANKING, OR ANY OTHER EMPLOYMENT.  BUT THAT IS AN ENTIRELY DIFFERENT
THING FROM LAYING A SPECIAL TAX UPON HIS RECEIPTS IN A PARTICULAR
EMPLOYMENT.  ... 

"IT (THE TAX UNDER CONSIDERATION) IS NOT A GENERAL TAX ON THE INCOME
OF ALL THE INHABITANTS OF THE STATE; BUT A SPECIAL TAX ON
TRANSPORTATION COMPANIES.  CONCEDING, HOWEVER, THAT AN INCOME TAX MAY
BE IMPOSED ON CERTAIN CLASSES OF THE COMMUNITY, DISTINGUISHED BY THE
CHARACTER OF THEIR OCCUPATIONS; THIS IS NOT AN INCOME TAX ON THE CLASS
TO WHICH IT REFERS, BUT A TAX ON THEIR RECEIPTS FOR TRANSPORTATION  ...
IT IS CLEARLY NOT SUCH, BUT A TAX ON TRANSPORTATION ONLY." 

PREVIOUS DECISIONS HAD HELD THAT THE COMMERCE CLAUSE DID NOT PROHIBIT
STATE TAXES ON GROSS RECEIPTS FROM INTERSTATE COMMERCE.  FN9  THE
EFFECT OF THESE PRIOR DECISIONS WAS MODIFIED BY THE PHILADELPHIA
STEAMSHIP CO. CASE.  THE LATTER CASE DECIDED (CONTRARY TO THE PREVIOUS
DECISIONS) THAT A STATE TAX ON GROSS RECEIPTS RECEIVED FOR ACTUAL
INTERSTATE TRANSPORTATION IS PROHIBITED BY THE COMMERCE CLAUSE.  IN
THAT CASE THE TAX INVALIDATED WAS A SELECTIVE TAX APPLIED TO THE
PARTICULAR BUSINESS OF TRANSPORTATION.  CONSEQUENTLY, THE COURT DID NOT
DECIDE WHETHER A STATE COULD CONSTITUTIONALLY IMPOSE A GENERAL GROSS
INCOME TAX (SUCH AS INDIANA'S) TO AN INTERSTATE BUSINESS (SUCH AS
APPELLANT'S) NOT INVOLVING TRANSPORTATION.  CREW LEVICK CO. V.
PENNSYLVANIA, 245 U.S. 292, DECEMBER, 1917, AND UNITED STATES GLUE CO.
V. OAK CREEK, 247 U.S. 321, JUNE, 1918, MARKED THE ALL-INCLUSIVE
CONDEMNATION OF STATE TAXES ON GROSS RECEIPTS FROM INTERSTATE COMMERCE,
AS A CLASS - WITHOUT REGARD TO DISCRIMINATION OR GENERALITY. 

HOWEVER, AS POINTED OUT IN THE OPINION, THE "BARE QUESTION" IN THE
CREW LEVICK CASE WAS "WHETHER A STATE TAX IMPOSED UPON THE BUSINESS OF
SELLING GOODS IN FOREIGN COMMERCE, INSOFAR AS IT IS MEASURED BY THE
GROSS RECEIPTS FROM MERCHANDISE SHIPPED TO FOREIGN COUNTRIES, IS IN
EFFECT A REGULATION OF FOREIGN COMMERCE OR AN IMPOST UPON EXPORTS,
WITHIN THE MEANING OF THE PERTINENT CLAUSES OF THE FEDERAL
CONSTITUTION."  THE TAX THERE INVOLVED WAS NOT A GENERAL INCOME TAX
BEARING UNIFORMLY UPON ALL BUSINESS WITHIN THE STATE.  WHEN THE OPINION
IN THE UNITED STATES GLUE CO. CASE - WHERE A GROSS INCOME TAX WAS NOT
IN ISSUE - INDICATED APPROVAL OF AN EXTENSION OF THE PREVIOUS
CONSTITUTIONAL RULE SO AS TO CONDEMN - AS A CLASS - ALL STATE TAXES ON
GROSS RECEIPTS FROM INTERSTATE COMMERCE, THE COURT CLEARLY SET OUT ITS
REASONS FOR THE EXTENSION.  THE COURT SAID THAT THE DISTINCTION: 

"  ...  BETWEEN A TAX MEASURED BY GROSS RECEIPTS AND ONE MEASURED BY
NET INCOME, RECOGNIZED BY OUR DECISIONS, IS MANIFEST AND SUBSTANTIAL,
AND IT AFFORDS A CONVENIENT AND WORKABLE BASIS OF DISTINCTION BETWEEN A
DIRECT AND IMMEDIATE BURDEN UPON THE BUSINESS AFFECTED AND A CHARGE
THAT IS ONLY INDIRECT AND INCIDENTAL.  A TAX UPON GROSS RECEIPTS
AFFECTS EACH TRANSACTION IN PROPORTION TO ITS MAGNITUDE AND
IRRESPECTIVE OF WHETHER IT IS PROFITABLE OR OTHERWISE.  CONCEIVABLY IT
MAY BE SUFFICIENT TO MAKE THE DIFFERENCE BETWEEN PROFIT AND LOSS, OR TO
SO DIMINISH THE PROFIT AS TO IMPEDE OR DISCOURAGE THE CONDUCT OF THE
COMMERCE.  A TAX UPON THE NET PROFIT HAS NOT THE SAME DETERRENT EFFECT,
SINCE IT DOES NOT ARISE AT ALL UNLESS A GAIN IS SHOWN OVER AND ABOVE
EXPENSES AND LOSSES, AND THE TAX CANNOT BE HEAVY UNLESS THE PROFITS ARE
LARGE.  SUCH A TAX, WHEN IMPOSED UPON NET INCOMES FROM WHATEVER SOURCE
ARISING, IS BUT A METHOD OF DISTRIBUTING THE COST OF GOVERNMENT, LIKE A
TAX UPON PROPERTY, OR UPON FRANCHISES TREATED AS PROPERTY; AND IF THERE
BE NO DISCRIMINATION AGAINST INTERSTATE COMMERCE, EITHER IN THE
ADMEASUREMENT OF THE TAX OR IN THE MEANS ADOPTED FOR ENFORCING IT, IT
CONSTITUTES ONE OF THE ORDINARY AND GENERAL BURDENS OF GOVERNMENT, FROM
WHICH PERSONS AND CORPORATIONS OTHERWISE SUBJECT TO THE JURISDICTION OF
THE STATES ARE NOT EXEMPTED BY THE FEDERAL CONSTITUTION BECAUSE THEY
HAPPEN TO BE ENGAGED IN COMMERCE AMONG THE STATES."  PP. 328-329. 

A TAX UPON PROPERTY USED IN INTERSTATE COMMERCE, EVEN WITH AN
AUGMENTED VALUE DUE TO SUCH USE, IS NOT A REGULATION OF COMMERCE, IS
VALID AND IS WITHIN THE POWERS OF THE STATE.  FN10  YET, THE
CONSTITUTIONAL VALIDITY OF A TAX ON PROPERTY DOES NOT TURN UPON WHETHER
THE PROPERTY IS PROFITABLE TO ITS OWNER.  GROSS RECEIPTS FROM
INTERSTATE COMMERCE - AS FROM ALL SOURCES - VARY AND WILL PROBABLY RISE
AND FALL WITH PROPERTY VALUES.  THEREFORE, THE TOTAL AMOUNT EXACTED
FROM INTERSTATE COMMERCE UNDER A GROSS RECEIPTS TAX CAN FLUCTUATE JUST
AS THE TOTAL PAID UNDER A PROPERTY TAX.  SINCE PROPERTY AND CORPORATE
FRANCHISES USED IN INTERSTATE COMMERCE CAN BE CONSTITUTIONALLY TAXED BY
STATES, WHETHER PROFITABLE OR UNPROFITABLE, IT SEEMS DIFFICULT TO
JUSTIFY A CONSTITUTIONAL TEST FOR STATE INCOME TAXES BASED UPON
EXISTENCE OR ABSENCE OF PROFIT. 

THE APPLICATION OF SUCH A CONSTITUTIONAL TEST WILL - AS A PRACTICAL
MATTER - INEVITABLY RESULT IN EXEMPTING ALL ENTERPRISES ENGAGED IN
INTERSTATE COMMERCE FROM ALL STATE GROSS INCOME TAXES ON INTERSTATE
COMMERCE RECEIPTS, WHETHER PROFITABLE OR NOT.  AT THE SAME TIME, LOCAL
INTRASTATE ENTERPRISES, DOING BUSINESS IN THE SAME COMMUNITIES, MUST
PAY STATE GROSS RECEIPTS TAXES WHETHER PROFITABLE OR UNPROFITABLE. 
SUCH A CONSTRUCTION OF THE COMMERCE CLAUSE - DESIGNED TO PREVENT A
STATE FROM IMPOSING UNFAIR TAX BURDENS UPON THOSE ENGAGED IN INTERSTATE
COMMERCE - ACTUALLY SERVES TO IMPOSE AN UNFAIR AND DISCRIMINATORY
BURDEN UPON LOCAL INTRASTATE BUSINESS.  FAILURE OF AN INTERSTATE
BUSINESS TO MAKE A PROFIT DOES NOT RELIEVE THE STATE OF ITS BURDEN IN
AFFORDING PROTECTION FOR THAT BUSINESS.  WHILE THE FEDERAL GOVERNMENT
IS CHARGED WITH THE CONSTITUTIONAL DUTY OF PROTECTING AND FOSTERING
INTERSTATE COMMERCE BY PROPER REGULATION  FN11  IT HAS NOT ATTEMPTED TO
PROVIDE LOCAL GOVERNMENTAL PROTECTION FOR THOSE ENGAGED IN SUCH
COMMERCE.  HOWEVER DESIRABLE IT MAY BE, AS A TAX POLICY, TO TAX IN
ACCORDANCE WITH ABILITY TO PAY, THE FAILURE TO MAKE A PROFIT SHOULD NOT
OF ITSELF CREATE A CONSTITUTIONAL EXEMPTION FROM A TAX WHICH THE STATE
MIGHT OTHERWISE IMPOSE.  FN12  AND, AS A PRACTICAL MATTER, STATE TAXING
AUTHORITIES MAY BE MOVED BY THE CONSIDERATION THAT PROFITS ARE NOT
ALWAYS CAPABLE OF ASCERTAINMENT WITH COMPLETE ACCURACY AND CERTAINTY. 
FN13 

IT HAS BEEN SUGGESTED, HOWEVER, THAT INDIANA MIGHT BY LAW APPORTION
TO ITSELF THAT PART OF A TAX ON GROSS RECEIPTS FROM INTERSTATE COMMERCE
TO WHICH IT IS ENTITLED.  SUCH AN APPORTIONMENT BY INDIANA WOULD, IN
EFFECT, FIX THE PORTION OF SUCH A TAX FOR THE OTHER FORTY-SEVEN STATES
WHICH APPELLANT'S INTERSTATE BUSINESS MIGHT TOUCH.  INDIANA HAS NO
AUTHORITY TO DETERMINE WHAT, HOW, WHEN OR TO WHAT EXTENT OTHER STATES
MAY TAX WITHIN THEIR RESPECTIVE BOUNDARIES.  IF SUCH POWER OF
APPORTIONMENT OR ALLOCATION EXISTS AT ALL, IT MUST BE TRUE THAT THE
ONLY REPOSITORY OF A POWER TOUCHING COMPLEX AND NATIONAL ASPECTS OF
INTERSTATE COMMERCE IS NOT INDIANA, NOT THE JUDICIARY - BUT THE
NATIONAL CONGRESS. 

INTERSTATE COMMERCE CONSTITUTES A LARGE PART OF THE BUSINESS OF THE
NATION.  UNTIL CONGRESS, IN THE EXERCISE OF ITS PLENARY POWER OVER
INTERSTATE COMMERCE, FIXES A DIFFERENT POLICY, IT WOULD APPEAR
DESIRABLE THAT THE STATES SHOULD REMAIN FREE TO ADOPT TAX SYSTEMS
IMPOSING UNIFORM AND NON-DISCRIMINATORY TAXES UPON INTERSTATE AND
INTRASTATE BUSINESS ALIKE. 

IT IS ALSO URGED THAT A GROSS RECEIPTS TAX UNDER THE COMMERCE CLAUSE
IS INVALID BECAUSE IT MIGHT RESULT IN MULTIPLE BURDENS ON INTERSTATE
COMMERCE.  FN14  THE POSSIBILITY IS SUGGESTED THAT THE STATES MAY USE
GROSS INCOME TAXES TO CREATE DIRECT, EXTRAORDINARY, AND UNJUST BURDENS
UPON INTERSTATE COMMERCE AND THAT THIS POSSIBILITY REQUIRES THAT ALL
STATE TAXES ON GROSS INTERSTATE COMMERCE RECEIPTS BE CONDEMNED AS
WITHIN THE PROHIBITION OF THE COMMERCE CLAUSE.  CONGRESS WAS
UNDOUBTEDLY GIVEN THE EXCLUSIVE POWER TO REGULATE COMMERCE IN ORDER
THAT UNDUE, UNJUST AND UNFAIR BURDENS MIGHT NOT BE IMPOSED UPON SUCH
COMMERCE.  FN15  IT WAS NOT INTENDED, HOWEVER, THAT INTERSTATE COMMERCE
SHOULD ENJOY A PREFERRED STATUS OVER INTRASTATE BUSINESS OR TO REMOVE
THOSE ENGAGED IN INTERSTATE COMMERCE FROM THE ORDINARY AND USUAL
BURDENS OF THE GOVERNMENT WHICH AFFORDS SUCH COMMERCE PROTECTION.  FN16
A COURT MAY ACT TO PROTECT A LITIGANT FROM UNFAIR AND UNJUST BURDENS
UPON THE LITIGANT'S INTERSTATE BUSINESS.  YET, IT WOULD SEEM THAT ONLY
CONGRESS HAS THE POWER TO FORMULATE RULES, REGULATIONS AND LAWS TO
PROTECT INTERSTATE COMMERCE FROM MERELY POSSIBLE FUTURE UNFAIR
BURDENS.  HERE THE RECORD DOES NOT INDICATE ANY CHARGE OR PROOF OF AN
EXISTING EXTRAORDINARY, UNFAIR OR MULTIPLE TAX BURDEN ON APPELLANT. 
THE TAX BURDEN FROM WHICH APPELLANT IS HERE EXEMPTED IS ONE WHICH THE
LOCAL TAXPAYERS OF INDIANA MUST BEAR.  AS A RESULT, AN UNJUST AND
UNFAIR BURDEN IS ACTUALLY IMPOSED UPON INTRASTATE BUSINESS, BECAUSE OF
AN APPREHENSION OF A POSSIBLE FUTURE INJURY TO INTERSTATE COMMERCE. 
THE CONTROL OF FUTURE CONDUCT, THE PREVENTION OF FUTURE INJURIES AND
THE FORMULATION OF REGULATORY RULES IN THE FIELDS OF COMMERCE AND
TAXATION, ALL PRESENT LEGISLATIVE PROBLEMS. 

THIS COURT HAS SUSTAINED, AND THE MAJORITY OPINION REFERS APPROVINGLY
TO A MUNICIPAL LICENSE TAX IN MISSOURI, IMPOSED IN ADDITION TO AN AD
VALOREM PROPERTY TAX, IN WHICH THE AMOUNT OF THE LICENSE WAS MEASURED
BY THE AMOUNT RECEIVED FOR THE INTERSTATE SALE OF GOODS MANUFACTURED
WITHIN THE MUNICIPALITY.  FN17  IT IS TRUE THAT THE AMOUNT OF THE
LICENSE FOR A SUCCEEDING YEAR WAS THERE MEASURED BY A PERCENTAGE OF THE
AMOUNT OF SALES FOR THE PRECEDING YEAR, WHILE THE INDIANA TAX IS PAID
QUARTERLY DURING THE YEAR OF SALE.  HOWEVER, IF WE LOOK TO SUBSTANCE
AND EFFECT, DISREGARD THE NOMINAL DESIGNATION OF EACH TAX, AND CONSIDER
THE REALITIES OF THE TWO TAXES, THE TAX BURDENS ARE IDENTICAL UNDER THE
APPROVED MISSOURI TAX AND THE DISAPPROVED INDIANA TAX.  FN18  NUMEROUS
OTHER DECISIONS HAVE RECOGNIZED THE PRINCIPLE OF INCLUDING RECEIPTS
FROM INTERSTATE COMMERCE IN THE FIGURE (NOT WHOLLY DERIVED FROM SUCH
COMMERCE) USED IN MEASURING THE AMOUNT OF A STATE EXCISE TAX.  FN19 

IT HAS BEEN OFTEN SAID THAT NO FORMULA CAN BE DEVISED FOR DETERMINING
IN ALL CASES WHETHER OR NOT A STATE TAX IS PROHIBITED BY THE COMMERCE
CLAUSE, AND THAT "THE QUESTION IS INHERENTLY A PRACTICAL ONE, DEPENDING
FOR ITS DECISION ON THE SPECIAL FACTS OF EACH CASE,  ...  "  FN20  A
FORMULA WHICH ARBITRARILY STAMPS EVERY STATE GROSS RECEIPTS TAX AS A
VIOLATION OF THE COMMERCE CLAUSE, ON THE GROUND THAT IT CAN BE USED FOR
CUMULATIVE TAX PURPOSES, LEAVES UNANSWERED THE POSSIBILITY THAT OTHER
TAXES, PREVIOUSLY HELD VALID, MAY BE USED WITH LIKE EFFECTS ON
INTERSTATE COMMERCE; DISREGARDS THE FACT THAT IN MANY CASES, AS HERE,
SUCH A TAX CAN BE FAIRLY AND UNIFORMLY APPLIED TO BOTH INTERSTATE AND
INTRASTATE COMMERCE; AND IN EFFECT ACTUALLY DENIES A STATE THE
PRIVILEGE OF USING SUCH A TAX UNLESS WILLING TO IMPOSE UNJUST AND
UNEQUAL BURDENS UPON ITS OWN CITIZENS ENGAGED IN INTRASTATE COMMERCE. 

THE RECEIPT OF INCOME IS A TAXABLE EVENT AND NEED NOT NECESSARILY
ENJOY THE IMMUNITY OF THE INCOME'S SOURCE.  FN21  APPELLANT'S RECEIPT
OF GROSS INCOME COULD BE TAXES IN ONE STATE ONLY, BECAUSE APPELLANT
RECEIVED INCOME ONLY IN INDIANA.  A SALES TAX MIGHT POSSIBLY BE IMPOSED
UPON INDEPENDENT DISTRIBUTORS OF APPELLANT'S PRODUCTS WHO DO BUSINESS
IN OTHER STATES.  SUCH TAX WOULD BE CONSTITUTIONAL ONLY IF IT DID NOT
DISCRIMINATE AGAINST APPELLANT'S PRODUCTS.  FN22 DISTRIBUTORS IN STATES
OTHER THAN INDIANA DO BUSINESS UNDER THE PROTECTION OF THEIR RESPECTIVE
STATES.  UNDER THESE CIRCUMSTANCES, NON-DISCRIMINATORY SALES TAXES IN
THOSE STATES UPON THE DISTRIBUTORS CREATE NO UNFAIR MULTIPLICATION OF
TAXES AND WOULD NOT BE UNCONSTITUTIONAL N23.  THE MANUFACTURER WHO
RECEIVES PROTECTION UNDER THE LAWS OF INDIANA AND THE DISTRIBUTORS WHO
RECEIVE PROTECTION UNDER THE LAWS OF THE STATES IN WHICH PRODUCTS ARE
SOLD, SHOULD BE SUBJECT TO UNIFORM, NON-DISCRIMINATORY TAXES IMPOSED BY
THE SOVEREIGN POWER OF THE STATES IN WHICH BOTH DO BUSINESS UNDER STATE
PROTECTION. 

JUDICIAL INTERPRETATION OF THE COMMERCE CLAUSE GRADUALLY EVOLVED THE
PRINCIPLE THAT NON-ACTION BY CONGRESS IS TANTAMOUNT TO A CONGRESSIONAL
DECLARATION THAT THE FLOW OF COMMERCE FROM STATE TO STATE MUST BE FREE
FROM UNFAIR AND DISCRIMINATORY BURDENS.  FN24  THROUGHOUT THE DECISIONS
UPON THE QUESTION HAS RUN RECOGNITION OF THE SUPREME POWER OF CONGRESS
TO REGULATE INTERSTATE COMMERCE, AND THE COURTS HAVE STRICKEN DOWN
STATE TAXES WHEN FOUND TO RAISE BARRIERS IMPEDING THE FREE FLOW OF
COMMERCE BETWEEN THE STATES, BUT NOT OBSTRUCTING COMMERCE BETWEEN
CITIZENS WITHIN A SINGLE STATE.  COURTS - IN THE ABSENCE OF
CONGRESSIONAL REGULATION OF INTERSTATE COMMERCE - HAVE ACTED BECAUSE
THERE "  ...  WOULD OTHERWISE BE NO SECURITY AGAINST CONFLICTING
REGULATIONS OF DIFFERENT STATES, EACH DISCRIMINATING IN FAVOR OF ITS
OWN PRODUCTS AND CITIZENS, AND AGAINST THE PRODUCTS AND CITIZENS OF
OTHER STATES.  ...  IT IS A MATTER OF PUBLIC HISTORY THAT THE OBJECT OF
VESTING IN CONGRESS THE RIGHT TO REGULATE COMMERCE WITH FOREIGN NATIONS
AND AMONG THE STATES WAS TO INSURE UNIFORMITY OF REGULATION AGAINST
CONFLICTING AND DISCRIMINATING STATE LEGISLATION."  FN25  WITH
REFERENCE TO BORDERLINE LAWS, IT HAS BEEN SIGNIFICANTLY POINTED OUT
THAT THERE "  ...  IS ALSO, IN ADDITION TO THE RESTRAINT WHICH THOSE
PROVISIONS (THE COMMERCE CLAUSE) IMPOSE BY THEIR OWN FORCE ON THE
STATES THE UNQUESTIONED POWER OF CONGRESS, UNDER THE AUTHORITY TO
REGULATE COMMERCE AMONG THE STATES, TO INTERPOSE, BY THE EXERCISE OF
THIS POWER, IN SUCH A MANNER AS TO PREVENT THE STATES FROM ANY
OPPRESSIVE INTERFERENCE WITH THE FREE INTERCHANGE OF COMMODITIES BY THE
CITIZENS OF ONE STATE WITH THOSE OF ANOTHER."  FN26 

IF IT BE TRUE, AS URGED, THAT SOME STATE GROSS RECEIPTS TAXES MAY
POSSIBLY IN THE FUTURE BE MULTIPLIED SO AS TO BURDEN INTERSTATE
COMMERCE UNFAIRLY, IT IS EQUALLY TRUE THAT OTHER STATE GROSS RECEIPTS
TAXES (AS THE INDIANA TAX) MAY NOT, IN THE ABSENCE OF SUCH
MULTIPLICATION, RESULT IN SUCH BURDENS.  SINCE THE PRESENT LITIGATION
HAS DEVELOPED THAT NO SUCH UNFAIR BURDENS HAVE BEEN IMPOSED UPON
APPELLANT'S INTERSTATE BUSINESS, APPELLANT CAN ONLY BE EXEMPTED FROM
PAYMENT OF THIS TAX BY APPLICATION OF A REGULATORY RULE OR LAW WHICH
CONDEMNS ALL SUCH STATE TAXES - WHETHER FAIR OR UNFAIR.  IF SUCH A
GENERAL RULE OR LAW IS TO BE PROMULGATED IT WOULD SEEM THAT UNDER OUR
CONSTITUTIONAL DIVISION OF GOVERNMENTAL POWERS SUCH A REGULATORY POLICY
SHOULD BE CONSIDERED AND DETERMINED BY CONGRESS UNDER ITS EXCLUSIVE
GRANT.  IT WILL BE TIME ENOUGH FOR JUDICIAL PROTECTION WHEN A LITIGANT
ACTUALLY PROVES, IN A PARTICULAR CASE, THAT STATE GROSS RECEIPTS TAXES
LEVIED AGAINST THE LITIGANT HAVE RESULTED IN UNFAIR AND UNJUST
DISCRIMINATION AGAINST THE LITIGANT BECAUSE OF ENGAGEMENT IN INTERSTATE
COMMERCE.  MANY ARGUMENTS - WHICH WE MIGHT BELIEVE TO BE SOUND - CAN BE
ADVANCED AGAINST THE LEGISLATIVE POLICY OF A GROSS RECEIPTS TAX.  THESE
OBJECTIONS, HOWEVER, ARE NOT THE CRITERION OF ITS CONSTITUTIONALITY. 
WITH THE WISDOM OF SUCH FISCAL POLICY OF A STATE WE ARE NOT CONCERNED. 
FN27  THE INTERESTS OF INTERSTATE COMMERCE WILL BEST BE FOSTERED,
PRESERVED AND PROTECTED - IN THE ABSENCE OF DIRECT REGULATION BY THE
CONGRESS - BY LEAVING THOSE ENGAGED IN IT IN THE VARIOUS STATES SUBJECT
TO THE ORDINARY AND NON-DISCRIMINATORY TAXES OF THE STATES FROM WHICH
THEY RECEIVE GOVERNMENTAL PROTECTION.  FOR THESE REASONS I BELIEVE THAT
THE ENTIRE JUDGMENT OF THE COURT BELOW SHOULD BE AFFIRMED. 

FN1  THE GENERALITY OF THIS TAX IS MADE CLEAR IN ITS DEFINITION OF
GROSS INCOME AS INCLUDING, WITH MINOR EXCEPTIONS, "THE GROSS RECEIPTS
OF THE TAXPAYER RECEIVED AS COMPENSATION FOR PERSONAL SERVICES, AND THE
GROSS RECEIPTS OF THE TAXPAYER DERIVED FROM TRADES, BUSINESSES OR
COMMERCE, AND THE GROSS RECEIPTS PROCEEDING OR ACCRUING FROM THE SALE
OF PROPERTY, TANGIBLE OR INTANGIBLE, REAL OR PERSONAL, OR SERVICE, OR
ANY OR ALL OF THE FOREGOING, AND ALL RECEIPTS BY REASON OF THE
INVESTMENT OF CAPITAL, INCLUDING INTEREST, DISCOUNT, RENTALS,
ROYALTIES, FEES, COMMISSIONS OR OTHER EMOLUMENTS, HOWEVER DESIGNATED,
...  "  SECTION (F), C. 50, INDIANA ACTS 1933. 

FN2  ACTS OF INDIANA, 1933, P. 1085(ACT APPROVED MARCH 9, 1933).  THE
GROSS INCOME TAX LAW WAS APPROVED FEBRUARY 27, 1933, ACTS 1933,
INDIANA, C. 50, 78TH SESSION, P. 388. 

FN3  7 N.E.(2D) 941, 945. 

FN4  "THE OBTAINING OF FUNDS TO REPLENISH IMPOVERISHED TREASURIES WAS
THE PRINCIPAL GOAL OF THE STATE LEGISLATURES IN 1933.  RELIEF TO
PROPERTY ALSO WAS A MUCH SOUGHT AFTER END.  PROPERTY RELIEF WAS
ACCORDED THROUGH REDUCED APPROPRIATIONS, LOWERED TAX LIMITS, AND
COLLECTION LENIENCY.  THE DRIVE FOR NEW REVENUE RESULTED IN THE
ADOPTION OF GROSS INCOME OR GROSS SALES TAXES IN FIFTEEN STATES.  ... 
"THE DEVELOPMENT OF THE GROSS INCOME OR GROSS SALES TAXES IS PROBABLY
THE OUTSTANDING TAX NEWS OF THE YEAR."  THE TAX MAGAZINE, VOL. 12,
FEBRUARY, 1934, P. 63, "STATE TAX LEGISLATION, 1933," RAYMOND E.
MANNING.  ID., SEE P. 365, "CHART OF STATE SALES, GROSS INCOME, AND
LICENSE TAXES." 

FN5  "INDIANA'S FISCAL STRAIN WAS NOT TO BE FOUND IN THE STATE
GOVERNMENT UNTIL THE $1.50 PROPERTY TAX LIMITATION ADOPTED BY THE
LEGISLATURE IN 1932 CUT ALMOST IN HALF THE STATE RATE ON PROPERTY,
WHICH HAD BEEN FURNISHING NOT FAR FROM ONE-FOURTH OF TOTAL STATE
REVENUES (INCLUDING MOTOR VEHICLE TAXES).  COUPLED WITH A DRASTIC
SHRINKAGE IN ASSESSED VALUATIONS AND A DEMAND FOR INCREASED STATE AID
TO LOCALITIES, THIS MADE IT IMPERATIVE FOR THE STATE GOVERNMENT TO SEEK
NEW REVENUE SOURCES EVEN THOUGH THE OTHER TAX YIELDS HAD BEEN HOLDING
UP FAIRLY WELL THROUGH 1931-32.  ... 

"IT IS EVIDENT THAT THE LOCAL TAX SITUATION WAS THE CHIEF FACTOR
BRINGING ABOUT THE SWEEPING CHANGE IN THE STATE'S OWN SYSTEM.  FOR ONE
NOT INTIMATELY ACQUAINTED WITH CONDITIONS IN INDIANA IT IS NOT EASY TO
LOCATE FROM THE AVAILABLE DATA THE PRECISE SOURCES OF TROUBLE, BUT
WHATEVER THEY MAY HAVE BEEN, THE TAX LIMITATION LAW CRYSTALLIZED THEM,
AND THE RESULT IS A THREATENED BREAKDOWN OF GOVERNMENTAL FINANCE IN
MANY LOCALITIES, UNLESS THE STATE SUCCEEDS IN CARRYING OUT ITS GREATLY
INCREASED PROGRAM OF AID TO LOCALITIES THROUGH HIGHWAY AND SCHOOL
MONEYS.  ... 

"THE CAMPAIGN IN SUPPORT OF THE (GROSS RECEIPTS) TAX  ...  WAS LED BY
THE INDIANA FARM BUREAU, WHICH SECURED THE SIGNATURES OF A LARGE NUMBER
OF FARMERS ON A PETITION URGING THE PASSAGE OF A SALES TAX.  ON
FEBRUARY 12 A MEETING OF FARMERS AND OTHER PROPERTY OWNERS WAS HELD,
AND SEVERAL THOUSAND MARCHED TO THE CAPITOL.  FOR SEVERAL YEARS THE
BUREAU HAD BEEN URGING THE REDUCTION OF PROPERTY TAXES, AND PARTLY AS A
RESULT OF ITS EFFORTS THE $1.50 LAW WAS PASSED IN THE SPECIAL SESSION
OF 1932, LIMITING THE STATE LEVY TO 15 CENTS AND ALL LOCAL LEVIES TO
$1.35 PER $100 OF ASSESSED VALUE.  ... 

"THE INDIANAPOLIS REAL ESTATE BOARD, IN ADDITION TO COOPERATING WITH
THE INDIANA FARM BUREAU, WORKED WITH THE INDIANA REAL ESTATE
ASSOCIATION AND THE FEDERATION OF COMMUNITY CIVIC CLUBS.  A MEETING OF
ALL THESE ORGANIZATIONS, HELD ON FEBRUARY 10, 1933, PASSED RESOLUTIONS
FAVORING THE SALES TAX." 

"THE SALES TAX IN THE AMERICAN STATES," HAIG AND SHOUP, (1934,
COLUMBIA UNIVERSITY PRESS), 238, 241, 242. 

FN6  CF. GIBBONS V. OGDEN, 9 WHEAT.  1, 196, 197.  SINCE CONGRESS HAS
NOT ACTED UPON THIS SUBJECT, THE PRESENT CASE DOES NOT INVOLVE A
MANIFESTATION BY CONGRESS OF ITS PARAMOUNT AND EXCLUSIVE AUTHORITY TO
REGULATE AN ASPECT OF INTERSTATE COMMERCE WITH WHICH THE STATES MAY
DEAL (BECAUSE OF ITS LOCAL NATURE) UNTIL CONGRESS ACTS.  CF. NEW YORK
CENTRAL & H.R.R. CO. V. COUNTY OF HUDSON, 227 U.S. 248. 

FN7  CF. HOUSTON, E. & W.T. RY. CO. V. UNITED STATES (THE SHREVEPORT
CASE), 234 U.S. 342, 350 ET SEQ. 

FN8 "  ...  THE BARE FACT THAT ONE IS CARRYING ON INTERSTATE COMMERCE
DOES NOT RELIEVE HIM FROM MANY FORMS OF STATE TAXATION WHICH ADD TO THE
COST OF HIS BUSINESS.  HE IS SUBJECT TO A PROPERTY TAX ON THE
INSTRUMENTS EMPLOYED IN THE COMMERCE,  ...  AND IF THE PROPERTY DEVOTED
TO INTERSTATE TRANSPORTATION IS USED BOTH WITHIN AND WITHOUT THE STATE
A TAX FAIRLY APPORTIONED TO ITS USE WITHIN THE STATE WILL BE
SUSTAINED.  ...  NET EARNINGS FROM INTERSTATE COMMERCE ARE SUBJECT TO
INCOME TAX,  ...  AND IF THE COMMERCE IS CARRIED ON BY A CORPORATION A
FRANCHISE TAX MAY BE IMPOSED, MEASURED BY THE NET INCOME FROM BUSINESS
DONE WITHIN THE STATE, INCLUDING SUCH PORTION OF THE INCOME DERIVED
FROM INTERSTATE COMMERCE AS MAY BE JUSTLY ATTRIBUTABLE TO BUSINESS DONE
WITHIN THE STATE BY FAIR METHOD OF APPORTIONMENT.  ...  ALL OF THESE
TAXES IN ONE WAY OR ANOTHER ADD TO THE EXPENSE OF CARRYING ON
INTERSTATE COMMERCE, AND IN THAT SENSE BURDEN IT; BUT THEY ARE NOT FOR
THAT REASON PROHIBITED."  WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303
U.S. 250, 255. 

FN9  "  ...  IT IS NOT EVERYTHING THAT AFFECTS COMMERCE THAT AMOUNTS
TO A REGULATION OF IT, WITHIN THE MEANING OF THE CONSTITUTION.  ... 

"  ... WE THINK IT MAY SAFELY BE LAID DOWN THAT THE GROSS RECEIPTS OF
RAILROAD OR CANAL COMPANIES, AFTER THEY HAVE REACHED THE TREASURY OF
THE CARRIERS, THOUGH THEY MAY HAVE BEEN DERIVED IN PART FROM
TRANSPORTATION OF FREIGHT BETWEEN STATES, HAVE BECOME SUBJECT TO
LEGITIMATE TAXATION.  IT IS NOT DENIED THAT NET EARNINGS OF SUCH
CORPORATIONS ARE TAXABLE BY STATE AUTHORITY WITHOUT ANY INQUIRY AFTER
THEIR SOURCES, AND IT IS DIFFICULT TO STATE ANY WELL-FOUNDED
DISTINCTION BETWEEN THE LAWFULNESS OF A TAX UPON THEM AND THAT OF A TAX
UPON GROSS RECEIPTS, OR BETWEEN THE EFFECTS THEY WORK UPON COMMERCE,
EXCEPT PERHAPS IN DEGREE."  STATE TAX ON RAILWAY GROSS RECEIPTS, 15
WALL.  284, 293, 296. 

"THE TAX (15 WALL.  284) ON GROSS RECEIPTS WAS HELD NOT TO BE
REPUGNANT TO THE CONSTITUTION, BECAUSE IMPOSED ON THE RAILROAD
COMPANIES IN THE NATURE OF A GENERAL INCOME TAX, AND INCAPABLE OF BEING
TRANSFERRED AS A BURDEN UPON THE PROPERTY CARRIED FROM ONE STATE TO
ANOTHER.  ... 

"  ...  IT IS AS IMPORTANT TO LEAVE THE RIGHTFUL POWERS OF THE STATE
IN RESPECT TO TAXATION UNIMPAIRED AS TO MAINTAIN THE POWERS OF THE
FEDERAL GOVERNMENT IN THEIR INTEGRITY. 

"IN THE SECOND OF THE CASES RECENTLY DECIDED, THE WHOLE COURT AGREED
THAT A TAX ON BUSINESS CARRIED ON WITHIN THE STATE AND WITHOUT
DISCRIMINATION BETWEEN ITS CITIZENS AND THE CITIZENS OF OTHER STATES,
MIGHT BE CONSTITUTIONALLY IMPOSED AND COLLECTED.  ... 

"IT IS TO BE OBSERVED THAT CONGRESS HAS NEVER UNDERTAKEN TO EXERCISE
THIS POWER IN ANY MANNER INCONSISTENT WITH THE MUNICIPAL ORDINANCE
UNDER CONSIDERATION, AND THERE ARE SEVERAL CASES IN WHICH THE COURT HAS
ASSERTED THE RIGHT OF THE STATE TO LEGISLATE, IN THE ABSENCE OF
LEGISLATION BY CONGRESS, UPON SUBJECTS OVER WHICH THE CONSTITUTION HAS
CLOTHED THAT BODY WITH LEGISLATIVE AUTHORITY."  OSBORNE V. MOBILE, 16
WALL.  479, 481, 482. 

FN10  CF. CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450, 453, 454;
UNITED STATES EXPRESS CO. V. MINNESOTA, 223 U.S. 335, 345, 347. 

FN11  DAYTON-GOOSE CREEK RY. CO. V. UNITED STATES, 263 U.S. 456,
478. 

FN12  STATE RAILROAD TAX CASES, 92 U.S. 575, 606; CF., OHIO TAX
CASES, 232 U.S. 576, 590. 

FN13  CF., WITH REFERENCE TO A STATE TAX LAW ASSAILED AS VIOLATIVE OF
THE FOURTEENTH AMENDMENT, DISSENT OF MR. JUSTICE CARDOZO:  "BUT PROFITS
THEMSELVES ARE NOT SUSCEPTIBLE OF ASCERTAINMENT WITH CERTAINTY AND
PRECISION EXCEPT AS THE RESULT OF INQUIRIES TOO MINUTE TO BE
PRACTICABLE.  THE RETURNS OF THE TAXPAYER CALL FOR AN EXERCISE OF
JUDGMENT AS WELL AS FOR A TRANSCRIPT OF THE FIGURES ON HIS BOOKS.  THEY
ARE SUBJECT TO POSSIBLE INACCURACIES, ALMOST WITHOUT NUMBER.  SALARIES
OF SUPERINTENDENCE, FIGURING AS EXPENSES, MAY HAVE BEEN SWOLLEN
INORDINATELY; APPRAISALS OF PLANT, OF MERCHANDISE, OF PATENTS, OF WHAT
NOT, MAY BE ERRONEOUS OR EVEN FRAUDULENT.  IN THE WORDS OF A STUDENT OF
THE PROBLEM, 'STATEMENTS OF PROFITS ARE AFFECTED BOTH BY ACCOUNTING
METHODS AND BY THE OPTIMISTIC OR PESSIMISTIC LIGHT IN WHICH THE FUTURE
IS VIEWED AT THE TIME WHEN THE ACCOUNTS ARE MADE UP.'  ...  THESE
DIFFICULTIES AND DANGERS BEAR WITNESS TO THE MISFORTUNE OF FORCING
METHODS OF TAXATION WITHIN A PROCRUSTEAN FORMULA.  IF THE STATE
DISCERNS IN BUSINESS OPERATIONS UNIFORMITIES AND AVERAGES THAT SEEM TO
POINT THE WAY TO A SYSTEM EASIER TO ADMINISTER THAN ONE BASED UPON A
REPORT OF PROFITS, AND YET LIKELY IN THE LONG RUN TO WORK OUT
APPROXIMATE EQUALITY, IT OUGHT NOT TO BE DENIED THE POWER TO FRAME ITS
LAWS ACCORDINGLY."  STEWART DRY GOODS CO. V. LEWIS, 294 U.S. 550, 576
577. 

FN14  SEE WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250. 

FN15  PHILADELPHIA & SOU.  S.S. CO. V. PENNSYLVANIA, 122 U.S. 326,
346. 

FN16  SEE WOODRUFF V. PARHAM, 8 WALL.  123, 137. 

FN17  AMERICAN MFG. CO. V. ST. LOUIS, 250 U.S. 459. 

FN18  APPARENTLY, IF THE INDIANA TAX HAD BEEN "ON THE PRIVILEGE OF
MANUFACTURING, MEASURED BY THE TOTAL GROSS RECEIPTS FROM SALES OF THE
MANUFACTURED GOODS, BOTH INTRASTATE AND INTERSTATE" INSTEAD OF
DESIGNATED AS "A TAX, MEASURED BY THE AMOUNT OR VOLUME OF GROSS INCOME"
RECEIVED FROM MANUFACTURING AND SALES INTERSTATE AND INTRASTATE, THE
TAX WOULD BE HELD VALID.  SEE, WESTERN LIVE STOCK V. BUREAU OF REVENUE,
303 U.S. 250. 

FN19  HUMP HAIRPIN CO. V. EMMERSON, 258 U.S. 290, 294; MAINE V. GRAND
TRUNK RAILWAY CO., 142 U.S. 217; WISCONSIN & MICHIGAN RY. CO. V.
POWERS, 191 U.S. 379; UNITED STATES EXPRESS CO. V. MINNESOTA, 223 U.S.
335, 343. 

FN20  HUMP HAIRPIN CO. V. EMMERSON, SUPRA, AT 295. 

FN21  IN SUSTAINING AN INCOME TAX LAW OF THE STATE OF NEW YORK
AGAINST A CHALLENGE THAT IT VIOLATED THE FOURTEENTH AMENDMENT, IT WAS
SAID:  "THAT THE RECEIPT OF INCOME BY A RESIDENT OF THE TERRITORY OF A
TAXING SOVEREIGNTY IS A TAXABLE EVENT IS UNIVERSALLY RECOGNIZED. 
DOMICIL ITSELF AFFORDS A BASIS FOR SUCH TAXATION.  ENJOYMENT OF THE
PRIVILEGES OF RESIDENCE IN THE STATE AND THE ATTENDANT RIGHT TO INVOKE
THE PROTECTION OF ITS LAWS ARE INSEPARABLE FROM RESPONSIBILITY FOR
SHARING THE COSTS OF GOVERNMENT.  "TAXES ARE WHAT WE PAY FOR CIVILIZED
SOCIETY.'  ...  NEITHER THE PRIVILEGE NOR THE BURDEN IS AFFECTED BY THE
CHARACTER OF THE SOURCE FROM WHICH THE INCOME IS DERIVED.  FOR THAT
REASON INCOME IS NOT NECESSARILY CLOTHED WITH THE TAX IMMUNITY ENJOYED
BY ITS SOURCE.  ...  IT MAY TAX NET INCOME FROM OPERATIONS IN
INTERSTATE COMMERCE ALTHOUGH A TAX ON THE COMMERCE IS FORBIDDEN, UNITED
STATES GLUE CO. V. OAK CREEK, 247 U.S. 321; SHAFFER V. CARTER,  ...
(252 U.S. 37, 50)."  NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308,
312, 313.  THE DISSENT CALLED ATTENTION TO THE FACT THAT NOT ONLY WAS
THE NEW YORK TAXPAYER SUBJECT TO AN INCOME TAX IN THAT STATE BY THE
DECISION, BUT THAT "NEW JERSEY, IN ADDITION TO TAX ON THE LAND MEASURED
BY ITS VALUE, MAY LAY A TAX UPON THE INCOME RECEIVED BY THE OWNER FOR
ITS USE."  ID., P. 318. 

FN22  "'A STATE TAX UPON MERCHANDISE BROUGHT IN FROM ANOTHER STATE,
OR UPON ITS SALES, WHETHER IN ORIGINAL PACKAGES OR NOT, AFTER IT HAS
REACHED ITS DESTINATION AND IS IN A STATE OF REST, IS LAWFUL ONLY WHEN
THE TAX IS NOT DISCRIMINATING IN ITS INCIDENCE AGAINST THE MERCHANDISE
BECAUSE OF ITS ORIGIN IN ANOTHER STATE.'  SONNEBORN BROS. V. CURETON,
(262 U.S. 506) AT P. 516.  ...  NEITHER THE POWER TO TAX NOR THE POLICE
POWER MAY BE USED BY THE STATE OF DESTINATION WITH THE AIM AND EFFECT
OF ESTABLISHING AN ECONOMIC BARRIER AGAINST COMPETITION WITH THE
PRODUCTS OF ANOTHER STATE OR THE LABOR OF ITS RESIDENTS.  ...  THEY ARE
THUS HOSTILE IN CONCEPTION AS WELL AS BURDENSOME IN RESULT.  THE FORM
OF THE PACKAGES IN SUCH CIRCUMSTANCES IS IMMATERIAL, WHETHER THEY ARE
ORIGINAL OR BROKEN."  BALDWIN V. G.A.F. SEELIG, 294 U.S. 511, 526,
527. 

FN23  SONNEBORN BROS. V. CURETON, 262 U.S. 506. 

FN24  SEE PHILADELPHIA & SOU.  S.S. CO. V. PENNSYLVANIA, SUPRA. 

FN25  COUNTY OF MOBILE V. KIMBALL, 102 U.S. 691, 697. 

FN26  WOODRUFF V. PARHAM, 8 WALL.  123, 140. 

FN27  CF. PURITY EXTRACT CO. V. LYNCH, 226 U.S. 192. 
..END :
























LABOR BOARD V. MACKAY CO., 304 U.S. 333 


NO. 706.  ARGUED APRIL 5, 6, 1938.  - DECIDED MAY 16, 1938.  - 87 F.2D
611 - 92 ID. 761, REVERSED. 


1.  THE CIRCUIT COURT OF APPEALS HAS JURISDICTION TO ENTERTAIN A
PETITION FOR REHEARING, FILED AT THE SAME TERM AND IN TIME UNDER ITS
RULES, OF A JUDGMENT DENYING AN APPLICATION OF THE NATIONAL LABOR
RELATIONS BOARD FOR ENFORCEMENT OF AN ORDER; AND THE THREE MONTHS
WITHIN WHICH A PETITIONER MUST APPLY TO THIS COURT FOR CERTIORARI TO
REVIEW THE DECISION IN SUCH CASE RUNS FROM THE DATE OF THE ORDER
ENTERED UPON THE PETITION FOR REHEARING.  P. 343. 

2.  FOLLOWING THE FAILURE OF NEGOTIATIONS LOOKING TO AN AGREEMENT IN
RESPECT OF TERMS AND CONDITIONS OF EMPLOYMENT, EMPLOYEES OF A COMPANY
ENGAGED IN THE TRANSMISSION AND RECEIPT OF RADIO, TELEGRAPH AND CABLE
MESSAGES, INTERSTATE AND FOREIGN, WENT ON A STRIKE.  THE COMPANY
BROUGHT EMPLOYEES FROM ITS OFFICES IN OTHER CITIES TO TAKE THE PLACES
OF THE STRIKERS.  SUBSEQUENTLY, ALL BUT FIVE OF THOSE WHO HAD BEEN ON
STRIKE WERE TAKEN BACK INTO THE EMPLOY OF THE COMPANY.  A PROCEEDING
WAS HAD BEFORE THE NATIONAL LABOR RELATIONS BOARD UPON A COMPLAINT
AGAINST THE COMPANY CHARGING THAT ITS NON-EMPLOYMENT OF THE FIVE WAS A
DISCRIMINATION AGAINST THEM ON ACCOUNT OF UNION ACTIVITIES AND THAT IT
WAS GUILTY OF UNFAIR LABOR PRACTICES.  AFTER A HEARING, AND UPON
FINDINGS OF FACT AND CONCLUSIONS OF LAW, THE BOARD ORDERED THE COMPANY
TO CEASE AND DESIST FROM DISCHARGING OR THREATENING TO DISCHARGE, ANY
OF ITS EMPLOYEES BECAUSE OF THEIR MEMBERSHIP IN THE UNION OR ON ACCOUNT
OF UNION ACTIVITIES; TO REFRAIN FROM INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN RESPECT OF SELF-ORGANIZATION AND COLLECTIVE
BARGAINING; AND REQUIRED THE COMPANY TO REINSTATE TO THEIR FORMER
POSITIONS, WITH BACK PAY, THE FIVE MEN WHO HAD NOT BEEN REEMPLOYED, AND
TO POST NOTICES TO THE EFFECT THAT MEMBERS OF THE UNION WOULD NOT BE
DISCRIMINATED AGAINST.  HELD: 

(1)  UNDER THE FINDINGS, THE STRIKE WAS A CONSEQUENCE OF, OR IN
CONNECTION WITH, A "LABOR DISPUTE" AS DEFINED IN SEC. 2(9) OF THE
NATIONAL LABOR RELATIONS ACT.  IT WAS NOT NECESSARY FOR THE BOARD TO
FIND WHAT THE STATE OF THE NEGOTIATIONS WAS WHEN THE STRIKE WAS CALLED;
NOR, IN SO MANY WORDS, THAT A "LABOR DISPUTE" EXISTED.  P. 344. 

(2)  THEIR WORK HAVING CEASED AS A CONSEQUENCE OF, OR IN CONNECTION
WITH, A CURRENT LABOR DISPUTE, SEC. 2(3), THE STRIKERS REMAINED
"EMPLOYEES" OF THE COMPANY FOR THE PURPOSES OF THE ACT, AND WERE
PROTECTED AGAINST THE UNFAIR LABOR PRACTICES DENOUNCED BY IT.  P. 345. 

(3)  DISCRIMINATION IN REINSTATING EMPLOYEES WHO HAD BEEN ON STRIKE
BY EXCLUDING CERTAIN OF THEM FOR THE SOLE REASON THAT THEY HAD BEEN
ACTIVE IN THE UNION, WAS AN UNFAIR LABOR PRACTICE, PROHIBITED BY SEC. 8
OF THE ACT.  P. 346. 

HOWEVER, IT WAS NOT AN UNFAIR LABOR PRACTICE FOR THE COMPANY TO
REPLACE ITS STRIKING EMPLOYEES WITH OTHERS IN AN EFFORT TO CARRY ON THE
BUSINESS; NOR WAS THE COMPANY BOUND LATER TO DISCHARGE SUCH OTHERS IN
ORDER TO REINSTATE THE STRIKERS.  P. 345. 

(4)  THE BOARD'S FINDING THAT, IN REINSTATING EMPLOYEES WHO HAD BEEN
ON STRIKE, THE COMPANY DISCRIMINATED AGAINST THOSE WHO HAD BEEN MOST
ACTIVE IN THE UNION, WAS SUPPORTED BY EVIDENCE.  P. 346. 

(5)  THE PROVISION OF THE ACT CONTINUING THE RELATIONSHIP OF EMPLOYER
AND EMPLOYEE IN THE CASE OF A STRIKE AS A CONSEQUENCE OF, OR IN
CONNECTION WITH, A CURRENT LABOR DISPUTE, DOES NOT VIOLATE THE FIFTH
AMENDMENT.  P. 347. 

IN THE EXERCISE OF THE COMMERCE POWER, CONGRESS MAY IMPOSE UPON
CONTRACTUAL RELATIONSHIPS REASONABLE REGULATIONS CALCULATED TO PROTECT
COMMERCE AGAINST THREATENED INDUSTRIAL STRIFE. 

(6)  THE AFFIRMATIVE RELIEF ORDERED BY THE BOARD WAS WITHIN ITS
POWERS AND ITS ORDER WAS NOT ARBITRARY OR CAPRICIOUS.  P. 348. 

(A)  COMPLETE RELIEF IN RESPECT OF THE FIVE MEN DISCRIMINATED AGAINST
JUSTIFIED THEIR BEING GIVEN THEIR FORMER POSITIONS AND REIMBURSEMENT
FOR LOSS RESULTING FROM THE DISCRIMINATION.  P. 348. 

(B)  IN RESPECT OF BACK PAY FOR THOSE ORDERED TO BE REINSTATED,
DEDUCTIONS ARE TO BE ALLOWED FOR ALL SUMS EARNED TO THE DATE OF
REINSTATEMENT.  P. 348. 

(C)  THE CLAUSE OF THE ORDER IN RESPECT OF THE POSTING OF NOTICES TO
BE READ IN CONNECTION WITH OTHER PARTS FORBIDDING DISCHARGE ON ACCOUNT
OF UNION ACTIVITY AND NOT AS REQUIRING NOTICE THAT REINSTATED EMPLOYEES
WOULD NOT BE DISCHARGED FOR ANY REASON WHATEVER.  P. 348. 

(7)  A CLAIM THAT THE COMPANY WAS DENIED A HEARING WITH RESPECT TO
THE OFFENSE FOUND BY THE BOARD, BECAUSE OF VARIANCE BETWEEN THE
FINDINGS AND THE CHARGES ON WHICH THE COMPLAINT WAS BASED, EXAMINED AND
REJECTED.  P. 349. 

3.  AT THE CONCLUSION OF THE TESTIMONY, AND PRIOR TO ORAL ARGUMENT
BEFORE THE TRIAL EXAMINER, THE BOARD BROUGHT THE PROCEEDING BEFORE IT,
HEARD ORAL ARGUMENT AND RECEIVED BRIEFS, AFTER WHICH IT MADE ITS
FINDINGS OF FACT AND CONCLUSIONS OF LAW.  THE ISSUES AND CONTENTIONS OF
THE PARTIES WERE CLEARLY DEFINED.  HELD, THE SUBMISSION OF A TENTATIVE
REPORT BY THE TRIAL EXAMINER AND A HEARING ON EXCEPTIONS TO THAT REPORT
WERE NOT ESSENTIAL.  P. 350. 

4.  THE FIFTH AMENDMENT GUARANTEES NO PARTICULAR FORM OF PROCEDURE;
IT PROTECTS SUBSTANTIAL RIGHTS.  P. 351. 

NATIONAL LABOR RELATIONS BOARD V. MACKAY RADIO & TELEGRAPH CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 303 U.S. 630, TO REVIEW A JUDGMENT DENYING AN APPLICATION
OF THE NATIONAL LABOR RELATIONS BOARD FOR THE ENFORCEMENT OF AN ORDER. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS REFUSED  FN1  TO DECREE ENFORCEMENT OF
AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.  FN2  WE GRANTED
CERTIORARI BECAUSE OF AN ASSERTED CONFLICT OF DECISION.  FN3 

THE RESPONDENT, A CALIFORNIA CORPORATION, IS ENGAGED IN THE
TRANSMISSION AND RECEIPT OF TELEGRAPH, RADIO, CABLE, AND OTHER MESSAGES
BETWEEN POINTS IN CALIFORNIA AND POINTS IN OTHER STATES AND FOREIGN
COUNTRIES.  IT MAINTAINS AN OFFICE IN SAN FRANCISCO FOR THE TRANSACTION
OF ITS BUSINESS WHEREIN IT EMPLOYS UPWARDS OF SIXTY SUPERVISORS,
OPERATORS AND CLERKS, MANY OF WHOM ARE MEMBERS OF LOCAL NO. 3 OF THE
AMERICAN RADIO TELEGRAPHISTS ASSOCIATION, A NATIONAL LABOR
ORGANIZATION; THE MEMBERSHIP OF THE LOCAL COMPRISING "POINT-TO-POINT"
OR LAND OPERATORS EMPLOYED BY RESPONDENT AT SAN FRANCISCO.  AFFILIATED
WITH THE NATIONAL ORGANIZATION ALSO WERE LOCALS WHOSE MEMBERS ARE
EXCLUSIVELY MARINE OPERATORS WHO WORK UPON OCEANGOING VESSELS.  THE
RESPONDENT, AT ITS SAN FRANCISCO OFFICE, DEALT WITH COMMITTEES OF LOCAL
NO. 3; AND ITS PARENT COMPANY, WHOSE HEADQUARTERS WERE IN NEW YORK,
DEALT WITH REPRESENTATIVES OF THE NATIONAL ORGANIZATION.  DEMAND WAS
MADE BY THE LATTER FOR THE EXECUTION OF AGREEMENTS RESPECTING TERMS AND
CONDITIONS OF EMPLOYMENT OF MARINE AND POINT-TO-POINT OPERATORS.  ON
SEVERAL OCCASIONS WHEN REPRESENTATIVES OF THE UNION CONFERRED WITH
OFFICERS OF THE RESPONDENT AND ITS PARENT COMPANY THE LATTER REQUESTED
POSTPONEMENT OF DISCUSSION OF THE PROPOSED AGREEMENTS AND THE UNION
ACCEDED TO THE REQUESTS.  IN SEPTEMBER 1935 THE UNION PRESSED FOR
IMMEDIATE EXECUTION OF AGREEMENTS AND TOOK THE POSITION THAT NO
CONTRACT WOULD BE CONCLUDED BY THE ONE CLASS OF OPERATORS UNLESS AN
AGREEMENT WERE SIMULTANEOUSLY MADE WITH THE OTHER.  LOCAL NO. 3 SENT A
REPRESENTATIVE TO NEW YORK TO BE IN TOUCH WITH THE NEGOTIATIONS AND HE
KEPT ITS OFFICERS ADVISED AS TO WHAT THERE OCCURRED.  THE LOCAL ADOPTED
A RESOLUTION TO THE EFFECT THAT IF SATISFACTORY TERMS WERE NOT OBTAINED
BY SEPTEMBER 23 A STRIKE OF THE SAN FRANCISCO POINT-TO-POINT OPERATORS
SHOULD BE CALLED.  THE NATIONAL OFFICERS DETERMINED ON A GENERAL STRIKE
IN VIEW OF THE UNSATISFACTORY STATE OF THE NEGOTIATIONS.  THIS FACT WAS
COMMUNICATED TO LOCAL NO. 3 BY ITS REPRESENTATIVE IN NEW YORK AND THE
LOCAL OFFICERS CALLED OUT THE EMPLOYES OF THE SAN FRANCISCO OFFICE.  AT
MIDNIGHT FRIDAY, OCTOBER 4, 1935, ALL THE MEN THERE EMPLOYED WENT ON
STRIKE.  THE RESPONDENT, IN ORDER TO MAINTAIN SERVICE, BROUGHT EMPLOYES
FROM ITS LOS ANGELES OFFICE AND OTHERS FROM THE NEW YORK AND CHICAGO
OFFICES OF THE PARENT COMPANY TO FILL THE STRIKERS' PLACES. 

ALTHOUGH NONE OF THE SAN FRANCISCO STRIKERS RETURNED TO WORK
SATURDAY, SUNDAY, OR MONDAY, THE STRIKE PROVED UNSUCCESSFUL IN OTHER
PARTS OF THE COUNTRY AND, BY MONDAY EVENING, OCTOBER 7TH, A NUMBER OF
THE MEN BECAME CONVINCED THAT IT WOULD FAIL AND THAT THEY HAD BETTER
RETURN TO WORK BEFORE THEIR PLACES WERE FILLED WITH NEW EMPLOYES.  ONE
OF THEM TELEPHONED THE RESPONDENT'S TRAFFIC SUPERVISOR MONDAY EVENING
TO INQUIRE WHETHER THE MEN MIGHT RETURN.  HE WAS TOLD THAT THE
RESPONDENT WOULD TAKE THEM BACK AND IT WAS ARRANGED THAT THE OFFICIAL
SHOULD MEET THE EMPLOYES AT A DOWNTOWN HOTEL AND MAKE A STATEMENT TO
THEM.  BEFORE LEAVING THE COMPANY'S OFFICE FOR THIS PURPOSE, THE
SUPERVISOR CONSULTED WITH HIS SUPERIOR, WHO TOLD HIM THAT THE MEN MIGHT
RETURN TO WORK IN THEIR FORMER POSITIONS BUT THAT, AS THE COMPANY HAD
PROMISED ELEVEN MEN BROUGHT TO SAN FRANCISCO THEY MIGHT REMAIN IF THEY
SO DESIRED, THE SUPERVISOR WOULD HAVE TO HANDLE THE RETURN OF THE
STRIKING EMPLOYES IN SUCH FASHION AS NOT TO DISPLACE ANY OF THE NEW MEN
WHO DESIRED TO CONTINUE IN SAN FRANCISCO.  A LITTLE LATER THE
SUPERVISOR MET TWO OF THE STRIKING EMPLOYES AND GAVE THEM A LIST OF ALL
THE STRIKERS, TOGETHER WITH THEIR ADDRESSES, AND THE TELEPHONE NUMBERS
OF THOSE WHO HAD TELEPHONES, AND IT WAS ARRANGED THAT THESE TWO
EMPLOYES SHOULD TELEPHONE THE STRIKERS TO COME TO A MEETING AT THE
HOTEL BELLEVUE IN THE EARLY HOURS OF TUESDAY, OCTOBER 8TH.  IN
FURNISHING THIS LIST THE SUPERVISOR STATED THAT THE MEN COULD RETURN TO
WORK IN A BODY BUT HE CHECKED OFF THE NAMES OF ELEVEN STRIKERS WHO HE
SAID WOULD HAVE TO FILE APPLICATIONS FOR REINSTATEMENT, WHICH
APPLICATIONS WOULD BE SUBJECT TO THE APPROVAL OF AN EXECUTIVE OF THE
COMPANY IN NEW YORK.  BECAUSE OF THIS STATEMENT THE TWO EMPLOYES, IN
NOTIFYING THE STRIKERS OF THE PROPOSED MEETING, WITH THE KNOWLEDGE OF
THE SUPERVISOR, OMITTED TO COMMUNICATE WITH THE ELEVEN MEN WHOSE NAMES
HAD BEEN CHECKED OFF.  THIRTY-SIX MEN ATTENDED THE MEETING.  SOME OF
THE ELEVEN IN QUESTION HEARD OF IT AND ATTENDED.  THE SUPERVISOR
APPEARED AT THE MEETING AND REITERATED HIS STATEMENT THAT THE MEN COULD
GO BACK TO WORK AT ONCE, BUT READ FROM A LIST THE NAMES OF THE ELEVEN
WHO WOULD BE REQUIRED TO FILE APPLICATIONS FOR REINSTATEMENT TO BE
PASSED UPON IN NEW YORK.  THOSE PRESENT AT THE MEETING VOTED ON THE
QUESTION OF IMMEDIATELY RETURNING TO WORK, AND THE PROPOSITION WAS
CARRIED.  MOST OF THE MEN LEFT THE MEETING AND WENT TO THE RESPONDENT'S
OFFICE TUESDAY MORNING, OCTOBER 8TH, WHERE ON THAT DAY THEY RESUMED
THEIR USUAL DUTIES.  THEN OR SHORTLY THEREAFTER, SIX OF THE ELEVEN IN
QUESTION TOOK THEIR PLACES AND RESUMED THEIR WORK WITHOUT CHALLENGE. 
IT TURNED OUT THAT ONLY FIVE OF THE NEW MEN BROUGHT TO SAN FRANCISCO
DESIRED TO STAY. 

FIVE STRIKERS WHO WERE PROMINENT IN THE ACTIVITIES OF THE UNION AND
IN CONNECTION WITH THE STRIKE, WHOSE NAMES APPEARED UPON THE LIST OF
ELEVEN, REPORTED AT THE OFFICE AT VARIOUS TIMES BETWEEN TUESDAY AND
THURSDAY.  EACH OF THEM WAS TOLD THAT HE WOULD HAVE TO FILL OUT AN
APPLICATION FOR EMPLOYMENT; THAT THE ROLL OF EMPLOYES WAS COMPLETE, AND
THAT HIS APPLICATION WOULD BE CONSIDERED IN CONNECTION WITH ANY VACANCY
THAT MIGHT THEREAFTER OCCUR.  THESE MEN NOT HAVING BEEN REINSTATED IN
THE COURSE OF THREE WEEKS, THE SECRETARY OF LOCAL NO. 3 PRESENTED A
CHARGE TO THE NATIONAL LABOR RELATIONS BOARD THAT THE RESPONDENT HAD
VIOLATED SEC. 8(1) AND (3) OF THE NATIONAL LABOR RELATIONS ACT.  FN4
THEREUPON THE BOARD FILED A COMPLAINT CHARGING THAT THE RESPONDENT HAD
DISCHARGED, AND WAS REFUSING TO EMPLOY, THE FIVE MEN WHO HAD NOT BEEN
REINSTATED TO THEIR POSITIONS, FOR THE REASON THAT THEY HAD JOINED AND
ASSISTED THE LABOR ORGANIZATION KNOWN AS LOCAL NO. 3 AND HAD ENGAGED IN
CONCERTED ACTIVITIES WITH OTHER EMPLOYES OF THE RESPONDENT, FOR THE
PURPOSE OF COLLECTIVE BARGAINING AND OTHER MUTUAL AID AND PROTECTION;
THAT BY SUCH DISCHARGE RESPONDENT HAD INTERFERED WITH, RESTRAINED, AND
COERCED THE EMPLOYES IN THE EXERCISE OF THEIR RIGHTS GUARANTEED BY SEC.
7  FN5  OF THE NATIONAL LABOR RELATIONS ACT AND SO HAD BEEN GUILTY OF
AN UNFAIR LABOR PRACTICE WITHIN THE MEANING OF SEC. 8(1) OF THE ACT. 
THE COMPLAINT FURTHER ALLEGED THAT THE DISCHARGE OF THESE MEN WAS A
DISCRIMINATION IN RESPECT OF THEIR HIRE AND TENURE OF EMPLOYMENT AND A
DISCOURAGEMENT OF MEMBERSHIP IN LOCAL NO. 3, AND THUS AN UNFAIR LABOR
PRACTICE WITHIN THE MEANING OF SEC. 8(3) OF THE ACT. 

THE RESPONDENT FILED AN ANSWER DENYING THE ALLEGATIONS OF THE
COMPLAINT, AND MOVED TO DISMISS THE PROCEEDING ON THE GROUND THAT THE
ACT IS UNCONSTITUTIONAL.  THE MOTION WAS TAKEN UNDER ADVISEMENT BY THE
BOARD'S EXAMINER AND THE CASE PROCEEDED TO HEARING.  AFTER THE
COMPLETION OF ITS TESTIMONY, THE BOARD FILED AN AMENDED COMPLAINT TO
COMPORT WITH THE EVIDENCE, IN WHICH IT CHARGED THAT THE RESPONDENT HAD
REFUSED TO RE-EMPLOY THE FIVE OPERATORS FOR THE REASON THAT THEY HAD
JOINED AND ASSISTED THE LABOR ORGANIZATION KNOWN AS LOCAL NO. 3 AND
ENGAGED WITH OTHER EMPLOYES IN CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING AND OTHER MUTUAL AID AND PROTECTION; THAT THE
REFUSAL TO RE-EMPLOY THEM RESTRAINED AND COERCED THE EMPLOYES IN THE
EXERCISE OF RIGHTS GUARANTEED BY SEC. 7 AND SO CONSTITUTED AN UNFAIR
LABOR PRACTICE WITHIN SEC. 8(1) OF THE ACT.  THE AMENDED COMPLAINT
FURTHER ASSERTED THAT THE REFUSAL TO RE-EMPLOY THE MEN DISCRIMINATED IN
REGARD TO THEIR HIRE AND TENURE OF EMPLOYMENT AND DISCOURAGED
MEMBERSHIP IN LOCAL NO. 3 AND THUS AMOUNTED TO AN UNFAIR LABOR PRACTICE
UNDER SEC. 8(3) OF THE ACT.  THE RESPONDENT ENTERED A GENERAL DENIAL TO
THE AMENDED COMPLAINT AND PRESENTED ITS EVIDENCE.  AT THE CONCLUSION OF
THE TESTIMONY, THE BOARD TRANSFERRED THE CAUSE FOR FURTHER HEARING
BEFORE THE MEMBERS OF THE BOARD AT WASHINGTON, AND AFTER ORAL ARGUMENT
AND THE FILING OF A BRIEF, MADE ITS FINDINGS OF FACT. 

THE SUBSIDIARY OR EVIDENTIARY FACTS WERE FOUND IN GREAT DETAIL AND,
UPON THE FOOTING OF THEM, THE BOARD REACHED CONCLUSIONS OF FACT TO THE
EFFECT THAT LOCAL NO. 3 IS A LABOR ORGANIZATION WITHIN THE MEANING OF
THE ACT; THAT "BY REFUSING TO REINSTATE TO EMPLOYMENT" THE FIVE MEN IN
QUESTION, "THEREBY DISCHARGING SAID EMPLOYES," THE RESPONDENT BY "EACH
OF SAID DISCHARGES," DISCRIMINATED IN REGARD TO TENURE OF EMPLOYMENT
AND THEREBY DISCOURAGED MEMBERSHIP IN THE LABOR ORGANIZATION KNOWN AS
LOCAL NO. 3, AND, BY THE DESCRIBED ACTS "HAS INTERFERED WITH,
RESTRAINED, AND COERCED ITS EMPLOYES IN THE EXERCISE OF THE RIGHTS
GUARANTEED BY SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT."  AS
CONCLUSIONS OF LAW THE BOARD FOUND THAT THE RESPONDENT HAD ENGAGED IN
UNFAIR LABOR PRACTICES AFFECTING COMMERCE WITHIN THE MEANING OF SEC. 8,
SUBSECTIONS (1) AND (3), AND SEC. 2, SUBSECTIONS (6) AND (7)  FN6 OF
THE ACT.  IT ENTERED AN ORDER THAT RESPONDENT CEASE AND DESIST FROM
DISCHARGING, OR THREATENING TO DISCHARGE, ANY OF ITS EMPLOYES FOR THE
REASON THAT THEY HAD JOINED OR ASSISTED LOCAL NO. 3 OR OTHERWISE
ENGAGED IN UNION ACTIVITIES; FROM INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYES IN THE EXERCISE OF THE RIGHTS GUARANTEED BY SEC.
7 OF THE ACT; OFFER THE FIVE MEN IMMEDIATE AND FULL REINSTATEMENT TO
THEIR FORMER POSITIONS, WITHOUT PREJUDICE TO RIGHTS AND PRIVILEGES
PREVIOUSLY ENJOYED, AND MAKE EACH OF THEM WHOLE FOR ANY LOSS OF WAGES
DUE TO THEIR DISCHARGE; POST NOTICES THAT THE RESPONDENT WOULD NOT
DISCHARGE OR DISCRIMINATE AGAINST MEMBERS OF, OR THOSE DESIRING TO
BECOME MEMBERS OF, THE UNION, AND KEEP THE NOTICES POSTED FOR THIRTY
DAYS. 

AS PERMITTED BY THE ACT, THE BOARD FILED IN THE CIRCUIT COURT OF
APPEALS A TRANSCRIPT OF THE RECORD OF ITS PROCEEDING, AND A PETITION
FOR ENFORCEMENT OF ITS ORDER.  IN ITS ANSWER THE RESPONDENT DENIED THE
JURISDICTION OF THE COURT ON THE GROUND THAT THE ACT VIOLATED ARTICLE
III, AND THE FIFTH, SEVENTH, AND TENTH AMENDMENTS, OF THE CONSTITUTION;
THAT THE ORDER AMOUNTED TO AN ABUSE OF DISCRETION BECAUSE ARBITRARY AND
CAPRICIOUS, AND WAS NOT SUPPORTED BY THE EVIDENCE; THAT THE TRIAL
EXAMINER ERRED IN HIS RULINGS ON EVIDENCE; THAT THE BOARD ERRED IN
OVERRULING EXCEPTIONS TO HIS RULINGS, AND THAT THE BOARD'S FINDINGS OF
FACT AND CONCLUSIONS OF LAW WERE ERRONEOUS. 

UPON THE HEARING BEFORE THE CIRCUIT COURT OF APPEALS, ONE JUDGE HELD
THAT THE ACTION OF THE BOARD WAS WITHIN THE POWER SOUGHT TO BE
CONFERRED UPON IT BY THE STATUTE BUT THAT THE GRANT OF POWER VIOLATED
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, AND THE AWARD OF BACK
PAY TO THE EMPLOYES, WITHOUT A JURY TRIAL, VIOLATED THE SEVENTH
AMENDMENT.  ANOTHER JUDGE HELD THAT AS THE STATUTE DEFINED EMPLOYES TO
INCLUDE A PERSON WHOSE WORK HAD CEASED "AS A CONSEQUENCE OF, OR IN
CONNECTION WITH, ANY CURRENT LABOR DISPUTE," AND SINCE THERE WAS NO
ALLEGATION, EVIDENCE, OR FINDING AS TO SUCH A DISPUTE, THE STRIKERS HAD
CEASED TO BE EMPLOYES WITHIN THE MEANING OF THE ACT AND THE
RESPONDENT'S TREATMENT OF THEM COULD NOT VIOLATE THE ACT.  ONE JUDGE
DISSENTED, HOLDING THAT THE BOARD'S ORDER WAS WITHIN ITS STATUTORY
AUTHORITY AND DID NOT VIOLATE THE CONSTITUTION.  A PETITION AND
SUPPLEMENTAL PETITION FOR REHEARING WERE GRANTED AND, AFTER ARGUMENT,
THE COURT REAFFIRMED ITS FORMER DECISION.  THE JUDGE WHO HAD PREVIOUSLY
DECLARED THE BOARD'S ACTION WITHIN THE TERMS OF THE STATUTE, BUT
UNCONSTITUTIONAL, CONSTRUED THE ACT AS NOT INTENDED TO WORK THE
UNCONSTITUTIONAL RESULT OF COMPELLING AN EMPLOYER TO ENTER INTO A
CONTRACT OF EMPLOYMENT AGAINST HIS WILL AND, HENCE, AS REQUIRING ONLY
THAT THE STRIKERS BE REINSTATED TO THE POSITION OF APPLICANTS FOR
EMPLOYMENT RATHER THAN EMPLOYES.  THE OTHER JUDGES ADHERED TO THE VIEWS
THEY HAD PREVIOUSLY EXPRESSED. 

THE PETITIONER CONTENDS THE COURT ERRED IN HOLDING THAT MEN WHO
STRUCK BECAUSE OF A FAILURE OF NEGOTIATIONS CONCERNING WAGES AND TERMS
OF EMPLOYMENT CEASED TO BE EMPLOYES WITHIN THE MEANING OF THE STATUTE;
ERRED IN NOT HOLDING IT AN UNFAIR LABOR PRACTICE, FORBIDDEN BY THE
STATUTE, FOR AN EMPLOYER TO DISCRIMINATE BECAUSE OF UNION ACTIVITIES IN
THE REINSTATEMENT OF MEN WHO HAVE GONE ON STRIKE BECAUSE OF A FAILURE
OF NEGOTIATIONS CONCERNING WAGES AND TERMS OF EMPLOYMENT; ERRED IN
FAILING TO HOLD THAT THE ACT AUTHORIZES THE BOARD TO ORDER
REINSTATEMENT OF PERSONS THUS DISCRIMINATED AGAINST; AND ONE OF THE
JUDGES ERRED IN HOLDING THAT THE ACT, IF CONSTRUED TO AUTHORIZE THE
BOARD TO REQUIRE SUCH REINSTATEMENT, VIOLATES THE FIFTH AMENDMENT. 
ON THE OTHER HAND, THE RESPONDENT INSISTS THAT IT WAS NOT ACCORDED DUE
PROCESS OF LAW, BECAUSE THE UNFAIR LABOR PRACTICE CHARGED IN THE
ORIGINAL COMPLAINT WAS ABANDONED AND THE ACTION OF THE BOARD WAS BASED
UPON A CONCLUSION OF FACT NOT WITHIN THE ISSUES PRESENTED; THAT THERE
IS NO BASIS FOR THE BOARD'S ORDER, BECAUSE THERE IS NO FINDING THAT THE
STRIKERS CEASED WORK AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY
LABOR DISPUTE, AS DEFINED IN THE STATUTE; THAT THE ACT DOES NOT EMPOWER
THE BOARD TO COMPEL AN EMPLOYER TO RE-EMPLOY OR REINSTATE THOSE WHO
HAVE ABANDONED NEGOTIATIONS AND GONE ON STRIKE PRIOR TO ANY UNFAIR
LABOR PRACTICE, WHERE THE EMPLOYER, AFTER THE STRIKE IS EFFECTIVE, AND
BEFORE COMMITTING ANY UNFAIR LABOR PRACTICE, HAS PERMANENTLY EMPLOYED
OTHERS IN PLACE OF THE STRIKERS; THAT, IF THE ACT BE HELD TO AUTHORIZE
THE BOARD'S ORDER, IT VIOLATES THE FIFTH AMENDMENT; THAT ARTICLE III OF
THE CONSTITUTION REQUIRES THAT THE COURT RENDER ITS INDEPENDENT
JUDGMENT UPON THE QUASI-JURISDICTIONAL FACTS UPON WHICH THE BOARD'S
ORDER WAS BASED; THAT THE BOARD'S ORDER WAS, IN THE LIGHT OF THE FACTS,
SO ARBITRARY AND CAPRICIOUS AS TO WARRANT THE COURT'S REFUSAL TO
ENFORCE IT; AND THAT THE CASE IS NOT PROPERLY BEFORE US BECAUSE
CERTIORARI WAS NOT SOUGHT WITHIN THE TIME FIXED BY LAW. 

WE HOLD THAT WE HAVE JURISDICTION; THAT THE BOARD'S ORDER IS WITHIN
ITS COMPETENCE AND DOES NOT CONTRAVENE ANY PROVISION OF THE
CONSTITUTION. 

FIRST.  WITHIN THE THIRTY DAYS PRESCRIBED BY THE RULES OF THE CIRCUIT
COURT OF APPEALS THE PETITIONER MOVED FOR A REHEARING AND FOR LEAVE, IF
DEEMED APPROPRIATE, TO TAKE FURTHER EVIDENCE AND ADD THE SAME TO THE
RECORD BEFORE THE BOARD.  WHILE THIS APPLICATION WAS PENDING A
SUPPLEMENTAL PETITION FOR REHEARING WAS PRESENTED.  DURING THE TERM THE
COURT ENTERTAINED BOTH PETITIONS AND GRANTED A REHEARING AND, AFTER
ORAL ARGUMENT AND SUBMISSION OF BRIEFS, WROTE FURTHER OPINIONS BASED
UPON THE PETITIONS FOR REHEARING.  WE THINK THE COURT HAD NOT LOST
JURISDICTION OF THE CAUSE; THAT ITS FINAL JUDGMENT WAS THE ORDER
ENTERED UPON THE PETITIONS FOR REHEARING; AND THAT THE THREE MONTHS
WITHIN WHICH THE PETITIONER MUST APPLY FOR CERTIORARI RAN FROM THE DATE
OF THE ORDER DISMISSING THE PETITION FOR REHEARING AND CONFIRMING THE
ORIGINAL ORDER. 

SECOND.  UNDER THE FINDINGS THE STRIKE WAS A CONSEQUENCE OF, OR IN
CONNECTION WITH, A CURRENT LABOR DISPUTE AS DEFINED IN SEC. 2(9) OF THE
ACT.  THAT THERE WERE PENDING NEGOTIATIONS FOR THE EXECUTION OF A
CONTRACT TOUCHING WAGES AND TERMS AND CONDITIONS OF EMPLOYMENT OF POINT
TO-POINT OPERATORS CANNOT BE DENIED.  BUT IT IS SAID THE RECORD FAILS
TO DISCLOSE WHAT CAUSED THESE NEGOTIATIONS TO FAIL OR TO SHOW THAT THE
RESPONDENT WAS IN ANY WISE IN FAULT IN FAILING TO COMPLY WITH THE
UNION'S DEMANDS; AND, THEREFORE, FOR ALL THAT APPEARS, THE STRIKE WAS
NOT CALLED BY REASON OF FAULT OF THE RESPONDENT.  THE ARGUMENT CONFUSES
A CURRENT LABOR DISPUTE WITH AN UNFAIR LABOR PRACTICE DEFINED IN SEC. 8
OF THE ACT.  TRUE THERE IS NO EVIDENCE THAT RESPONDENT HAD BEEN GUILTY
OF ANY UNFAIR LABOR PRACTICE PRIOR TO THE STRIKE, BUT WITHIN THE INTENT
OF THE ACT THERE WAS AN EXISTING LABOR DISPUTE IN CONNECTION WITH WHICH
THE STRIKE WAS CALLED.  THE FINDING IS THAT THE STRIKE WAS DEEMED
"ADVISABLE IN VIEW OF THE UNSATISFACTORY STATE OF THE NEGOTIATIONS" IN
NEW YORK.  IT WAS UNNECESSARY FOR THE BOARD TO FIND WHAT WAS IN FACT
THE STATE OF THE NEGOTIATIONS IN NEW YORK WHEN THE STRIKE WAS CALLED,
OR IN SO MANY WORDS THAT A LABOR DISPUTE AS DEFINED BY THE ACT
EXISTED.  THE WISDOM OR UNWISDOM OF THE MEN, THEIR JUSTIFICATION OR
LACK OF IT, IN ATTRIBUTING TO RESPONDENT AN UNREASONABLE OR ARBITRARY
ATTITUDE IN CONNECTION WITH THE NEGOTIATIONS, CANNOT DETERMINE WHETHER,
WHEN THEY STRUCK, THEY DID SO AS A CONSEQUENCE OF OR IN CONNECTION WITH
A CURRENT LABOR DISPUTE. 

THIRD.  THE STRIKERS REMAINED EMPLOYES UNDER SEC. 2(3) OF THE ACT
WHICH PROVIDES:  "THE TERM 'EMPLOYEE' SHALL INCLUDE  ...  ANY
INDIVIDUAL WHOSE WORK HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION
WITH, ANY CURRENT LABOR DISPUTE OR BECAUSE OF ANY UNFAIR LABOR
PRACTICE, AND WHO HAS NOT OBTAINED ANY OTHER REGULAR AND SUBSTANTIALLY
EQUIVALENT EMPLOYMENT,  ...  "  WITHIN THIS DEFINITION THE STRIKERS
REMAINED EMPLOYES FOR THE PURPOSE OF THE ACT AND WERE PROTECTED AGAINST
THE UNFAIR LABOR PRACTICES DENOUNCED BY IT. 

FOURTH.  IT IS CONTENDED THAT THE BOARD LACKED JURISDICTION BECAUSE
RESPONDENT WAS AT NO TIME GUILTY OF ANY UNFAIR LABOR PRACTICE.  SECTION
8 OF THE ACT DENOMINATES AS SUCH PRACTICE ACTION BY AN EMPLOYER TO
INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYES IN THE EXERCISE OF THEIR
RIGHTS TO ORGANIZE, TO FORM, JOIN OR ASSIST LABOR ORGANIZATIONS, AND TO
ENGAGE IN CONCERTED ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING
OR OTHER MUTUAL AID OR PROTECTION, OR "BY DISCRIMINATION IN REGARD TO
...  TENURE OF EMPLOYMENT OR ANY TERM OR CONDITION OF EMPLOYMENT TO
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION:  ...  "
THERE IS NO EVIDENCE AND NO FINDING THAT THE RESPONDENT WAS GUILTY OF
ANY UNFAIR LABOR PRACTICE IN CONNECTION WITH THE NEGOTIATIONS IN NEW
YORK.  ON THE CONTRARY, IT AFFIRMATIVELY APPEARS THAT THE RESPONDENT
WAS NEGOTIATING WITH THE AUTHORIZED REPRESENTATIVES OF THE UNION.  NOR
WAS IT AN UNFAIR LABOR PRACTICE TO REPLACE THE STRIKING EMPLOYES WITH
OTHERS IN AN EFFORT TO CARRY ON THE BUSINESS.  ALTHOUGH SEC. 13
PROVIDES, "NOTHING IN THIS ACT SHALL BE CONSTRUED SO AS TO INTERFERE
WITH OR IMPEDE OR DIMINISH IN ANY WAY THE RIGHT TO STRIKE," IT DOES NOT
FOLLOW THAT AN EMPLOYER, GUILTY OF NO ACT DENOUNCED BY THE STATUTE, HAS
LOST THE RIGHT TO PROTECT AND CONTINUE HIS BUSINESS BY SUPPLYING PLACES
LEFT VACANT BY STRIKERS.  AND HE IS NOT BOUND TO DISCHARGE THOSE HIRED
TO FILL THE PLACES OF STRIKERS, UPON THE ELECTION OF THE LATTER TO
RESUME THEIR EMPLOYMENT, IN ORDER TO CREATE PLACES FOR THEM.  FN7 THE
ASSURANCE BY RESPONDENT TO THOSE WHO ACCEPTED EMPLOYMENT DURING THE
STRIKE THAT IF THEY SO DESIRED THEIR PLACES MIGHT BE PERMANENT WAS NOT
AN UNFAIR LABOR PRACTICE NOR WAS IT SUCH TO REINSTATE ONLY SO MANY OF
THE STRIKERS AS THERE WERE VACANT PLACES TO BE FILLED.  BUT THE CLAIM
PUT FORWARD IS THAT THE UNFAIR LABOR PRACTICE INDULGED BY THE
RESPONDENT WAS DISCRIMINATION IN REINSTATING STRIKING EMPLOYES BY
KEEPING OUT CERTAIN OF THEM FOR THE SOLE REASON THAT THEY HAD BEEN
ACTIVE IN THE UNION.  AS WE HAVE SAID, THE STRIKERS RETAINED, UNDER THE
ACT, THE STATUS OF EMPLOYES.  ANY SUCH DISCRIMINATION IN PUTTING THEM
BACK TO WORK IS, THEREFORE, PROHIBITED BY SEC. 8. 

FIFTH.  THE BOARD'S FINDINGS AS TO DISCRIMINATION ARE SUPPORTED BY
EVIDENCE.  WE SHALL NOT ATTEMPT A DISCUSSION OF THE CONFLICTING CLAIMS
AS TO THE PROPER CONCLUSIONS TO BE DRAWN FROM THE TESTIMONY.  THERE WAS
EVIDENCE, WHICH THE BOARD CREDITED, THAT SEVERAL OF THE FIVE MEN IN
QUESTION WERE TOLD THAT THEIR UNION ACTIVITIES MADE THEM UNDESIRABLE TO
THEIR EMPLOYER; AND THAT SOME OF THEM DID NOT RETURN TO WORK WITH THE
GREAT BODY OF THE MEN AT 6 O'CLOCK ON TUESDAY MORNING BECAUSE THEY
UNDERSTOOD THEY WOULD NOT BE ALLOWED TO GO TO WORK UNTIL THE SUPERIOR
OFFICIALS HAD PASSED UPON THEIR APPLICATIONS.  WHEN THEY DID APPLY AT
TIMES BETWEEN TUESDAY MORNING AND THURSDAY THEY WERE EACH TOLD THAT THE
QUOTA WAS FULL AND THAT THEIR APPLICATIONS COULD NOT BE GRANTED IN ANY
EVENT UNTIL A VACANCY OCCURRED.  THIS WAS ON THE GROUND THAT FIVE OF
THE ELEVEN NEW MEN REMAINED AT WORK IN SAN FRANCISCO.  ON THE OTHER
HAND, SIX OF THE ELEVEN STRIKERS LISTED FOR SEPARATE TREATMENT WHO
REPORTED FOR WORK EARLY TUESDAY MORNING, OR WITHIN THE NEXT DAY OR SO,
WERE PERMITTED TO GO BACK TO WORK AND WERE NOT COMPELLED TO AWAIT THE
APPROVAL OF THEIR APPLICATIONS.  IT APPEARS THAT ALL OF THE MEN WHO HAD
BEEN ON STRIKE SIGNED APPLICATIONS FOR REEMPLOYMENT SHORTLY AFTER THEIR
RESUMPTION OF WORK.  THE BOARD FOUND, AND WE CANNOT SAY THAT ITS
FINDING IS UNSUPPORTED, THAT, IN TAKING BACK SIX OF THE ELEVEN MEN AND
EXCLUDING FIVE WHO WERE ACTIVE UNION MEN, THE RESPONDENT'S OFFICIALS
DISCRIMINATED AGAINST THE LATTER ON ACCOUNT OF THEIR UNION ACTIVITIES
AND THAT THE EXCUSE GIVEN THAT THEY DID NOT APPLY UNTIL AFTER THE QUOTA
WAS FULL WAS AN AFTERTHOUGHT AND NOT THE TRUE REASON FOR THE
DISCRIMINATION AGAINST THEM. 

AS WE HAVE SAID, THE RESPONDENT WAS NOT BOUND TO DISPLACE MEN HIRED
TO TAKE THE STRIKERS' PLACES IN ORDER TO PROVIDE POSITIONS FOR THEM. 
IT MIGHT HAVE REFUSED REINSTATEMENT ON THE GROUND OF SKILL OR ABILITY,
BUT THE BOARD FOUND THAT IT DID NOT DO SO.  IT MIGHT HAVE RESORTED TO
ANY ONE OF A NUMBER OF METHODS OF DETERMINING WHICH OF ITS STRIKING
EMPLOYES WOULD HAVE TO WAIT BECAUSE FIVE MEN HAD TAKEN PERMANENT
POSITIONS DURING THE STRIKE, BUT IT IS FOUND THAT THE PREPARATION AND
USE OF THE LIST, AND THE ACTION TAKEN BY RESPONDENT, WERE WITH THE
PURPOSE TO DISCRIMINATE AGAINST THOSE MOST ACTIVE IN THE UNION.  THERE
IS EVIDENCE TO SUPPORT THESE FINDINGS. 

SIXTH.  THE BOARD'S ORDER DOES NOT VIOLATE THE FIFTH AMENDMENT.  THE
RESPONDENT INSISTS THAT THE RELATION OF EMPLOYER AND EMPLOYE CEASED AT
THE INCEPTION OF THE STRIKE.  THE PLAIN MEANING OF THE ACT IS THAT IF
MEN STRIKE IN CONNECTION WITH A CURRENT LABOR DISPUTE THEIR ACTION IS
NOT TO BE CONSTRUED AS A RENUNCIATION OF THE EMPLOYMENT RELATION AND
THEY REMAIN EMPLOYES FOR THE REMEDIAL PURPOSES SPECIFIED IN THE ACT. 
WE HAVE HELD THAT, IN THE EXERCISE OF THE COMMERCE POWER, CONGRESS MAY
IMPOSE UPON CONTRACTUAL RELATIONSHIPS REASONABLE REGULATIONS CALCULATED
TO PROTECT COMMERCE AGAINST THREATENED INDUSTRIAL STRIFE.  NATIONAL
LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 48. 
THE BOARD'S ORDER THERE SUSTAINED REQUIRED THE REINSTATEMENT OF
DISCHARGED EMPLOYES.  THE REQUIREMENT INTERFERED WITH FREEDOM OF
CONTRACT WHICH THE EMPLOYER WOULD HAVE ENJOYED EXCEPT FOR THE MANDATE
OF THE STATUTE.  THE PROVISION OF THE ACT CONTINUING THE RELATIONSHIP
OF EMPLOYER AND EMPLOYE IN THE CASE OF A STRIKE AS A CONSEQUENCE OF, OR
IN CONNECTION WITH, A CURRENT LABOR DISPUTE IS A REGULATION OF THE SAME
SORT AND WITHIN THE PRINCIPLE OF OUR DECISION. 

SEVENTH.  THE AFFIRMATIVE RELIEF ORDERED BY THE BOARD WAS WITHIN ITS
POWERS AND ITS ORDER WAS NOT ARBITRARY OR CAPRICIOUS. 

AS WE HAVE HELD IN NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA
GREYHOUND LINES, 303 U.S. 261, THE RELIEF WHICH THE STATUTE EMPOWERS
THE BOARD TO GRANT IS TO BE ADAPTED TO THE SITUATION WHICH CALLS FOR
REDRESS.  ON THE BASIS OF THE FINDINGS, FIVE MEN WHO TOOK PART IN THE
STRIKE WERE DISCRIMINATED AGAINST IN CONNECTION WITH A BLANKET OFFER TO
REINSTATE STRIKING EMPLOYES.  THE BOARD ENJOINED FURTHER DISCRIMINATION
AGAINST EMPLOYES BY REASON OF UNION AFFILIATION, BUT IT COULD NOT GRANT
COMPLETE RELIEF IN RESPECT OF THE FIVE MEN SHORT OF ORDERING THAT THE
DISCRIMINATION BE NEUTRALIZED BY THEIR BEING GIVEN THEIR FORMER
POSITIONS AND REIMBURSED FOR THE LOSS DUE TO THEIR LACK OF EMPLOYMENT
CONSEQUENT UPON THE RESPONDENT'S DISCRIMINATION.  THE ORDER IS
CRITICIZED AS ARBITRARY IN THAT IT IS SAID TO AWARD BACK PAY TO DATE OF
REINSTATEMENT WITH DEDUCTIONS ONLY FOR WHAT WAS EARNED TO THE DATE OF
THE ORDER.  WE DO NOT SO READ IT, AND THE BOARD ADMITS THAT CREDIT MUST
BE GIVEN FOR ALL SUMS EARNED TO DATE OF REINSTATEMENT, AND SO CONSTRUES
THE ORDER.  IT IS FURTHER SAID THAT THE ORDER ARBITRARILY AND
UNREASONABLY REQUIRES THE NOTICES TO BE POSTED TO STATE THAT RESPONDENT
WILL NOT DISCHARGE ITS REINSTATED EMPLOYES FOR ANY REASON WHATEVER. 
THIS CLAUSE OF THE ORDER IS INARTIFICIALLY DRAWN, AND COUNSEL FOR THE
BOARD ADMIT THAT IT SHOULD BE READ IN CONNECTION WITH THE REMAINDER OF
THE ORDER FORBIDDING DISCHARGE ON THE GROUND OF UNION ACTIVITY. 

EIGHTH.  THE RESPONDENT WAS NOT DENIED A HEARING WITH RESPECT TO THE
OFFENSE FOUND BY THE BOARD.  THE RESPONDENT SAYS THAT IT WAS SUMMONED
TO ANSWER A COMPLAINT THAT IT DISCRIMINATED BY DISCHARGING THE FIVE MEN
AND THAT, AFTER ALL THE EVIDENCE WAS IN, THIS COMPLAINT WAS WITHDRAWN
AND A NEW ONE PRESENTED ASSERTING THAT ITS REFUSAL TO RE-EMPLOY THE
FIVE MEN WAS THE HEAD AND FRONT OF ITS OFFENDING.  THEN IT IS SAID THAT
WHEN THE BOARD CAME TO MAKE ITS FINDING IT REVERTED TO THE POSITION
THAT WHAT THE RESPONDENT DID HAD NOT BEEN A FAILURE TO EMPLOY BUT A
WRONGFUL DISCHARGE.  THUS THE RESPONDENT CLAIMS THAT IT IS FOUND GUILTY
OF AN UNFAIR LABOR PRACTICE WHICH WAS NOT WITHIN THE ISSUES UPON WHICH
THE CASE WAS TRIED.  THE POSITION IS HIGHLY TECHNICAL.  ALL PARTIES TO
THE PROCEEDING KNEW FROM THE OUTSET THAT THE THING COMPLAINED OF WAS
DISCRIMINATION AGAINST CERTAIN MEN BY REASON OF THEIR ALLEGED UNION
ACTIVITIES.  IF THERE WAS A CURRENT LABOR DISPUTE THE MEN WERE STILL
EMPLOYES BY VIRTUE OF SEC. 2(3), AND THE REFUSAL TO LET THEM WORK WAS A
DISCHARGE.  THE RESPONDENT SAYS THAT AS THE BOARD FAILED TO FIND, IN SO
MANY WORDS, THAT THERE WAS A CURRENT LABOR DISPUTE, ITS CONCLUSION OF
FACT THAT THE MEN WERE DISCHARGED HAS NO BASIS.  BUT THE BOARD FOUND
THAT THE STRIKE WAS CALLED BECAUSE THE STRIKERS WERE INFORMED THAT THE
NEGOTIATIONS FOR A WORKING AGREEMENT IN NEW YORK WERE NOT PROCEEDING
SATISFACTORILY.  WE THINK ITS ACTION CANNOT BE OVERTURNED FOR THE MERE
REASON THAT IT FAILED TO CHARACTERIZE THE SITUATION AS A CURRENT LABOR
DISPUTE.  THE RESPONDENT FURTHER URGES THAT, WHEN THE AMENDED COMPLAINT
WAS FILED AND THE ORIGINAL ONE WITHDRAWN, THE CHARGE IT HAD TO MEET WAS
A REFUSAL TO RE-EMPLOY; THAT THE PHRASE "RE-EMPLOY" MEANS "EMPLOY
ANEW"; THAT IF THE BOARD HAD FOUND A FAILURE TO EMPLOY THE FIVE MEN
BECAUSE OF DISCRIMINATION FORBIDDEN BY THE ACT, THE FINDINGS WOULD HAVE
FOLLOWED THE COMPLAINT, WHEREAS THE BOARD, IN ITS CONCLUSIONS OF FACT,
REFERRED TO RESPONDENT'S ACTION AS "REFUSAL TO REINSTATE TO EMPLOYMENT"
AND AS A DISCHARGE; AND THE ARGUMENT IS THAT THE FINDINGS DO NOT FOLLOW
THE PLEADINGS.    A REVIEW OF THE RECORD SHOWS THAT AT NO TIME DURING
THE HEARINGS WAS THERE ANY MISUNDERSTANDING AS TO WHAT WAS THE BASIS OF
THE BOARD'S COMPLAINT.  THE ENTIRE EVIDENCE, PRO AND CON, WAS DIRECTED
TO THE QUESTION WHETHER, WHEN THE STRIKE FAILED AND THE MEN DESIRED TO
COME BACK AND WERE TOLD THAT THE STRIKE WOULD BE FORGOTTEN AND THAT
THEY MIGHT COME BACK IN A BODY SAVE FOR ELEVEN MEN WHO WERE SINGLED OUT
FOR DIFFERENT TREATMENT, SIX OF WHOM, HOWEVER, WERE TREATED LIKE
EVERYONE ELSE, THE RESPONDENT DID IN FACT DISCRIMINATE AGAINST THE
REMAINING FIVE BECAUSE OF UNION ACTIVITY.  WHILE THE RESPONDENT WAS
ENTITLED TO KNOW THE BASIS OF THE COMPLAINT AGAINST IT, AND TO EXPLAIN
ITS CONDUCT, IN AN EFFORT TO MEET THAT COMPLAINT, WE FIND FROM THE
RECORD THAT IT UNDERSTOOD THE ISSUE AND WAS AFFORDED FULL OPPORTUNITY
TO JUSTIFY THE ACTION OF ITS OFFICERS AS INNOCENT RATHER THAN
DISCRIMINATORY. 

AT THE CONCLUSION OF THE TESTIMONY, AND PRIOR TO ORAL ARGUMENT BEFORE
THE EXAMINER, THE BOARD TRANSFERRED THE PROCEEDING TO WASHINGTON TO BE
FURTHER HEARD BEFORE THE BOARD.  IT DENIED RESPONDENT'S MOTION TO
RESUBMIT THE CAUSE TO THE TRIAL EXAMINER WITH DIRECTIONS TO PREPARE AND
FILE AN INTERMEDIATE REPORT.  IN THE CIRCUIT COURT OF APPEALS THE
RESPONDENT ASSIGNED ERROR TO THIS RULING.  IT APPEARS THAT ORAL
ARGUMENT WAS HAD AND A BRIEF WAS FILED WITH THE BOARD AFTER WHICH IT
MADE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW.  THE RESPONDENT NOW
ASSERTS THAT THE FAILURE OF THE BOARD TO FOLLOW ITS USUAL PRACTICE OF
THE SUBMISSION OF A TENTATIVE REPORT BY THE TRIAL EXAMINER AND A
HEARING ON EXCEPTIONS TO THAT REPORT DEPRIVED THE RESPONDENT OF
OPPORTUNITY TO CALL TO THE BOARD'S ATTENTION THE ALLEGED FATAL VARIANCE
BETWEEN THE ALLEGATIONS OF THE COMPLAINT AND THE BOARD'S FINDINGS. 
WHAT WE HAVE SAID SUFFICIENTLY INDICATES THAT THE ISSUES AND
CONTENTIONS OF THE PARTIES WERE CLEARLY DEFINED AND AS NO OTHER
DETRIMENT OR DISADVANTAGE IS CLAIMED TO HAVE ENSUED FROM THE BOARD'S
PROCEDURE THE MATTER IS NOT ONE CALLING FOR A REVERSAL OF THE ORDER. 
THE FIFTH AMENDMENT GUARANTEES NO PARTICULAR FORM OF PROCEDURE; IT
PROTECTS SUBSTANTIAL RIGHTS.  COMPARE MORGAN V. UNITED STATES, 298 U.S.
468, 478.  THE CONTENTION THAT THE RESPONDENT WAS DENIED A FULL AND
ADEQUATE HEARING MUST BE REJECTED. 

NINTH.  THE OTHER CONTENTIONS OF THE RESPONDENT ARE OVERRULED BECAUSE
FORECLOSED BY EARLIER DECISIONS OF THIS COURT. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  REVERSED. 

FN1  87 F.2D 611; 92 F.2D 761. 

FN2  1 N.L.R.B. 201. 

FN3  SEE JEFFERY-DEWITT INSULATOR CO. V. NATIONAL LABOR RELATIONS
BOARD, 91 F.2D 134; NATIONAL LABOR RELATIONS BOARD V. BELL OIL & GAS
CO., 91 F.2D 509; NATIONAL LABOR RELATIONS BOARD V. CARLISLE LUMBER
CO., 94 F.2D 138; BLACK DIAMOND S.S. CORP. V. NATIONAL LABOR RELATIONS
BOARD, 94 F.2D 875. 

FN4  U.S.C. SUPP. II, TIT. 29, SEC. 158(1) AND (3). 

FN5  U.S.C. SUPP. II, TIT. 29, SEC. 157. 

FN6  U.S.C. SUPP. II, TIT. 29, SEC. 152(6)(7). 

FN7  COMPARE NATIONAL LABOR RELATIONS BOARD V. BELL OIL & GAS CO., 91
F.2D 509. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :













TAFT V. COMMISSIONER, 304 U.S. 351 


NO. 746.  ARGUED APRIL 25, 1938.  - DECIDED MAY 16, 1938.  - 92 F.2D
667, AFFIRMED. 


1.  A DECEDENT IN HER LIFETIME PROMISED EDUCATIONAL INSTITUTIONS TO
ESTABLISH AN ENDOWMENT FUND AND TO PAY SALARIES OF ORCHESTRAL MUSICIANS
AND A DIRECTOR OF ART. THE PROMISES WERE ACCEPTED AND ACTED UPON, AND
UNDER THE STATE LAW WERE BINDING UPON HER ESTATE.  HELD THAT IN VALUING
THE ESTATE FOR TAXATION UNDER THE REVENUE ACT OF 1926, THE EXECUTOR WAS
NOT ENTITLED TO DEDUCT THE AMOUNTS PAYABLE UNDER THE PROMISES, AS BEING
CLAIMS CONTRACTED "FOR AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR
MONEY'S WORTH," SEC. 303(A)(1), OR AS "TRANSFERS," TO OR FOR THE USE OF
THE PROMISEE CORPORATIONS, ID. SEC. 303(A)(3).  PP. 355, 357. 

2.  THE LEGISLATIVE AND ADMINISTRATIVE HISTORY OF SEC. 303(A)(1) OF
THE REVENUE ACT OF 1926, SHOWS THAT A PROMISE BY A DECEDENT TO PAY
MONEY TO A CHARITABLE OR EDUCATIONAL INSTITUTION, WHERE THE ONLY
CONSIDERATION WAS A STIPULATED APPLICATION OF THE AMOUNT RECEIVED, DOES
NOT CONSTITUTE A CLAIM AGAINST THE ESTATE CONTRACTED FOR AN ADEQUATE
AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH, NOTWITHSTANDING THE
FACT THAT UNDER LOCAL LAW THE PROMISE IS ENFORCEABLE.  P. 355. 

3.  A BINDING PROMISE BY A DECEDENT TO PAY MONEY TO A CHARITABLE OR
EDUCATIONAL INSTITUTION, NOT ATTENDED BY ANY ALLOCATION OF FUNDS IN
DECEDENT'S LIFETIME, IS NOT A "TRANSFER" WITHIN THE MEANING OF SEC.
303(A)(3), REVENUE ACT OF 1926; AND PAYMENT BY THE EXECUTOR DOES NOT
MAKE IT SUCH BY RELATION.  P. 357. 

4.  ONLY SUCH TRANSFERS INTER VIVOS AS ARE TESTAMENTARY IN CHARACTER
ARE DEDUCTIBLE UNDER SUBSECTION (3), SUPRA.  P. 358. 

TAFT, EXECUTOR, V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 303 U.S. 631, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS WHICH AFFIRMED A DECISION OF THE BOARD OF TAX APPEALS, 33
B.T.A. 671, SUSTAINING THE DISALLOWANCE OF CERTAIN DEDUCTIONS IN THE
VALUATION OF AN ESTATE FOR TAXATION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER THE PETITIONER, AS EXECUTOR, MAY
DEDUCT FROM THE GROSS ESTATE AMOUNTS PAYABLE PURSUANT TO THE DECEDENT'S
BINDING PROMISES AS CLAIMS AGAINST THE ESTATE INCURRED BONA FIDE AND
FOR AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH WITHIN
THE MEANING OF SEC. 303(A)(1), OR AS TRANSFERS TO CHARITABLE OR
EDUCATIONAL INSTITUTIONS UNDER SEC. 303(A)(3), OF THE REVENUE ACT OF
1926.  FN1  THE DEDUCTIONS WERE OF AMOUNTS OWING AT THE DECEDENT'S
DEATH UPON THE FOLLOWING CONTRACTUAL OBLIGATIONS. 

BY LETTER THE DECEDENT AGREED WITH THE UNIVERSITY OF CINCINNATI TO
ESTABLISH A FUND AS A MEMORIAL TO HER HUSBAND, STATING THAT SHE WOULD
MAKE AVAILABLE TO THE TRUSTEES OF THE FUND, WHOM SHE NAMED, DURING THE
ENSUING YEAR, $50,000, DURING THE FOLLOWING YEAR $75,000, AND, IN EACH
SUCCEEDING YEAR, $100,000 OR SUCH OTHER INCOME AS MIGHT BE DERIVED FROM
A FUND OF $2,000,000 WHICH SHE WOULD ULTIMATELY TRANSFER TO THE
TRUSTEES.  THE LETTER OUTLINED THE TERMS OF THE TRUST TO WHICH THE
INCOME WAS TO BE DEVOTED.  THE OFFER WAS FORMALLY ACCEPTED BY THE BOARD
OF DIRECTORS OF THE UNIVERSITY AND, PURSUANT TO THE AGREEMENT, THE
DECEDENT MADE PAYMENTS TO THE TRUSTEES AND HER EXECUTOR CONTINUED TO
PAY SUMS ON ACCOUNT OF INTEREST AND PRINCIPAL.  THE UNIVERSITY IS AN
EDUCATIONAL INSTITUTION AND NO PROFIT ENURES TO ANYONE FROM ITS
OPERATION. 

BEING DEEPLY INTERESTED IN THE CINCINNATI INSTITUTE OF FINE ARTS AND
ITS WORK, AND HAVING JOINTLY WITH HER HUSBAND AND AS AN INDIVIDUAL
CONTRIBUTED LARGE SUMS TO THIS WORK, THE DECEDENT, TO OBVIATE THE
NECESSITY OF REDUCING THE PERSONNEL OF THE ORCHESTRA THE INSTITUTE
CONDUCTS, AGREED WITH THE INSTITUTE THAT IF IT WOULD RETAIN TWO
MUSICIANS SHE WOULD PAY THEIR SALARIES UNDER CONTRACTS COVERING TWO
YEARS.  IN RELIANCE UPON HER PROMISE THE INSTITUTE RE-ENGAGED THE TWO
MEN.  THE DECEDENT PAID THE AMOUNT OF THEIR SALARIES PRIOR TO HER DEATH
AND PETITIONER, AS EXECUTOR, PAID THEM TO THE END OF THE CONTRACT
TERM.  THE INSTITUTE WOULD NOT HAVE RE-EMPLOYED THESE MEN EXCEPT FOR
THE AGREEMENT.  IT IS A CHARITABLE CORPORATION ORGANIZED FOR THE
MAINTENANCE OF A SYMPHONY ORCHESTRA AND OTHER ACTIVITIES, AND NO PROFIT
ENURES TO ANYONE FROM ITS OPERATIONS. 

THE DECEDENT AGREED BY LETTER ADDRESSED TO THE CINCINNATI INSTITUTE
OF FINE ARTS THAT IF IT WOULD EMPLOY A DIRECTOR OF ART SHE WOULD
CONTRIBUTE $10,000 TOWARDS HIS SALARY.  IN RELIANCE UPON THIS
UNDERTAKING THE INSTITUTION ENGAGED SUCH A DIRECTOR AT A SALARY OF
$10,000 PER ANNUM.  SHE PAID THE STIPULATED AMOUNT FOR ONE AND ONE-HALF
YEARS PRIOR TO HER DEATH AND THE PETITIONER, AS EXECUTOR, PAID FOR ONE
YEAR SUBSEQUENT TO HER DEATH.  THERE WERE NO AVAILABLE FUNDS FOR THE
EMPLOYMENT OF A DIRECTOR EXCEPT THOSE RECEIVED FROM THE DECEDENT AND
THE INSTITUTE WOULD NOT HAVE EMPLOYED ONE EXCEPT FOR HER AGREEMENT.  IT
IS AN EDUCATIONAL INSTITUTION AND DOES NOT OPERATE FOR PROFIT. 

IN 1930 THE DECEDENT AGREED WITH THE UNIVERSITY OF CINCINNATI THAT IF
IT WOULD ENGAGE A NAMED PERSON AS PROFESSOR TO GIVE A SPECIFIED COURSE
OF INSTRUCTION SHE WOULD PAY THE UNIVERSITY THE AMOUNT OF HIS SALARY. 
SHE HAD MADE SIMILAR ARRANGEMENTS FOR PRIOR YEARS.  THE UNIVERSITY
EMPLOYED THE PROFESSOR AND WOULD NOT HAVE DONE SO EXCEPT FOR HER
AGREEMENT.  AT THE TIME OF HER DEATH A SUM REMAINED DUE ACCORDING TO
HER PROMISE WHICH THE PETITIONER PAID. 

THE TOTAL CLAIMED AS DEDUCTIBLE ON ACCOUNT OF THESE OBLIGATIONS WAS
$2,015,420.  UNDER THE LAW OF OHIO, THE DECEDENT'S PROMISES WERE AND
ARE LEGALLY BINDING AND ENFORCEABLE AGAINST HER ESTATE.  THE
COMMISSIONER RULED, AND THE BOARD  FN2  AND THE COURT BELOW  FN3  HAVE
HELD, THAT THE ESTATE'S OBLIGATIONS IN QUESTION, THOUGH CONTRACTED BONA
FIDE, WERE NOT INCURRED FOR AN ADEQUATE AND FULL CONSIDERATION IN MONEY
OR MONEY'S WORTH AS REQUIRED BY CLAUSE (1), AND PAYMENTS OF THE SUMS
PROMISED ARE NOT TRANSFERS TO OR FOR THE USE OF ANY CORPORATION
ORGANIZED AND OPERATING EXCLUSIVELY FOR CHARITABLE OR EDUCATIONAL
PURPOSES WITHIN THE MEANING OF CLAUSE (3), OF SEC. 303(A) OF THE ACT. 
WE GRANTED CERTIORARI BECAUSE OF AN ALLEGED CONFLICT OF DECISION.  FN4 

1.  THE CLAIMS AGAINST THE ESTATE WERE NOT INCURRED OR CONTRACTED FOR
AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH WITHIN THE
MEANING OF THE STATUTE.  THE TERMS USED, THE LEGISLATIVE HISTORY OF THE
THE CONDITIONS IMPOSED BY THE DECEDENT AS TO THE EXPENDITURE OF THE
MONEY PROMISED AND THE STIPULATION ON THE PART OF THE PAYEE TO EXPEND
IT IN THAT FASHION, OR ITS COMPLIANCE WITH THE CONDITIONS, DO NOT
CONSTITUTE AN ADEQUATE OR A FULL CONSIDERATION IN MONEY OR MONEY'S
WORTH WITHIN THE MEANING OF THE ACT.  IF THERE WERE DOUBT ABOUT THE
MATTER THE LEGISLATIVE HISTORY OF THE STATUTE AND THE TREASURY
REGULATIONS WOULD REQUIRE US SO TO HOLD.  THE REVENUE ACT OF 1916
PERMITTED THE DEDUCTION OF THE AMOUNT OF CLAIMS AGAINST THE ESTATE
"ALLOWED BY THE LAWS OF THE JURISDICTION  ...  UNDER WHICH THE ESTATE
IS BEING ADMINISTERED."  FN5  THE ACTS OF 1918 AND 1921 CONTAIN LIKE
PROVISIONS.  FN6  UNDER THESE ACTS THE CLAIMS IN QUESTION WOULD HAVE
BEEN DEDUCTIBLE AS ENFORCEABLE BY STATE LAW IRRESPECTIVE OF THE NATURE
OF THE CONSIDERATION.  FN7  THE ACT OF 1924 ALTERED EXISTING LAW AND
AUTHORIZED THE DEDUCTION OF CLAIMS AGAINST AN ESTATE ONLY TO THE EXTENT
THAT THEY WERE "INCURRED OR CONTRACTED BONA FIDE AND FOR A FAIR
CONSIDERATION IN MONEY OR MONEY'S WORTH."  FN8  CONGRESS HAD REASON TO
THINK THAT THE PHRASE "FAIR CONSIDERATION" WOULD BE HELD TO COMPREHEND
AN INSTANCE OF A PROMISE WHICH WAS HONEST, REASONABLE, AND FREE FROM
SUSPICION WHETHER OR NOT THE CONSIDERATION FOR IT WAS, STRICTLY
SPEAKING, ADEQUATE.  FN9  THE WORDS "ADEQUATE AND FULL CONSIDERATION"
WERE SUBSTITUTED BY SEC. 303(A)(1) OF THE ACT OF 1926.  THERE MUST HAVE
BEEN SOME REASON FOR THESE SUCCESSIVE CHANGES.  IT SEEMS EVIDENT THAT
THE PURPOSE WAS TO NARROW THE CLASS OF DEDUCTIBLE CLAIMS, AND WE ARE
NOT AT LIBERTY TO IGNORE THIS PURPOSE. 

THE REGULATIONS OF THE TREASURY PROMULGATED UNDER THE ACT OF 1924 AND
THE FIRST EDITION APPLICABLE TO THAT OF 1926, PARAPHRASED THE STATUTORY
LANGUAGE.  FN10  THE 1929 EDITION OF REGULATION 70, ART. 36, PROVIDES
IN PART:  "A PLEDGE OR A SUBSCRIPTION EVIDENCED BY A PROMISSORY NOTE OR
OTHERWISE, EVEN THOUGH ENFORCEABLE AGAINST THE ESTATE, IS DEDUCTIBLE
ONLY TO THE EXTENT SUCH PLEDGE OR SUBSCRIPTION WAS MADE FOR AN ADEQUATE
AND FULL CONSIDERATION IN CASH OR ITS EQUIVALENT RECEIVED THEREFOR BY
THE DECEDENT."  FN11  SINCE 1929 THE REGULATIONS HAVE EXCLUDED
DEDUCTIONS SUCH AS THOSE IN ISSUE HERE.  MEANTIME THE ESTATE TAX
PROVISIONS HAVE BEEN AMENDED FOUR TIMES AND THE SECTION UNDER WHICH THE
REGULATIONS WERE PROMULGATED HAS BEEN AMENDED TWICE.  WE MUST ASSUME
THAT CONGRESS WAS FAMILIAR WITH THE CONSTRUCTION PUT UPON THE SECTION
BY THE TREASURY AND WAS SATISFIED WITH IT.  THE BOARD OF TAX APPEALS
FN12  AND THE COURTS,  FN13  WITH THE EXCEPTION OF THE CIRCUIT COURT OF
APPEALS FOR THE THIRD CIRCUIT,  FN14  HAVE HELD THAT A PROMISE TO PAY
MONEY TO A CHARITABLE OR EDUCATIONAL INSTITUTION, WHERE THE ONLY
CONSIDERATION WAS A STIPULATED APPLICATION OF THE AMOUNT RECEIVED, DOES
NOT CONSTITUTE A CLAIM AGAINST THE ESTATE CONTRACTED FOR AN ADEQUATE
AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH NOTWITHSTANDING THE
FACT THAT UNDER LOCAL LAW THE PROMISE IS ENFORCEABLE.  IN THIS VIEW WE
AGREE. 

2.  PAYMENTS PURSUANT TO THE PROMISES ARE NOT TRANSFERS WITHIN THE
MEANING OF SEC. 303(A)(3).  THE COURT BELOW EXCLUDED THE PAYMENTS FROM
THE OPERATION OF THAT SECTION UPON TWO GROUNDS.  BOTH, AS WE THINK, ARE
VALID.  THE PETITIONER'S PAYMENT, AFTER THE DECEDENT'S DEATH, OF A SUM
PROMISED DURING HER LIFE, IS NOT APPROPRIATELY DESIGNATED A TRANSFER. 
TRUE THE DECEDENT HAS PROMISED TO MAKE A TRANSFER BUT FULFILLMENT OF
THE PROMISE BY THE EXECUTOR DOES NOT RELATE BACK TO THE TIME THE
PROMISE WAS MADE SO AS TO CONVERT HER PROMISE INTO A TRANSFER BY HER. 
HERE THE SUBJECT OF THE TRANSFER WAS NOT IDENTIFIED BY ANY ALLOCATION
OF DECEDENT'S FUNDS DURING HER LIFE.  THIS FACT ADDS POINT TO THE VIEW
THAT SHE MADE NO TRANSFER. 

SUBSECTION (3) APPLIES ONLY TO TESTAMENTARY DISPOSITIONS.  THE PHRASE
IS "THE AMOUNT OF ALL BEQUESTS, LEGACIES, DEVISES, OR TRANSFERS" TO
CERTAIN SPECIFIED RELIGIOUS, CHARITABLE, SCIENTIFIC, LITERARY OR
EDUCATIONAL USES.  THE RIGHT TO THE DEDUCTION IS QUALIFIED BY THE
PROVISION "THE AMOUNT OF THE DEDUCTION UNDER THIS PARAGRAPH FOR ANY
TRANSFER SHALL NOT EXCEED THE VALUE OF THE TRANSFERRED PROPERTY
REQUIRED TO BE INCLUDED IN THE GROSS ESTATE."  THE ONLY TRANSFERS
REQUIRED TO BE INCLUDED IN THE GROSS ESTATE ARE THOSE MADE IN
CONTEMPLATION OF DEATH OR TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT
OR AFTER DEATH.  FN15  IN OTHER WORDS, ONLY SUCH TRANSFERS AS ARE
TESTAMENTARY IN CHARACTER ARE TO BE INCLUDED IN THE GROSS ESTATE, AND
IT FOLLOWS THAT ONLY THOSE OF THAT CHARACTER ARE DEDUCTIBLE UNDER
SUBSECTION (3).  THOSE HERE IN QUESTION WERE CLEARLY NOT SUCH.  THERE
IS NO CLAIM THAT THE AGREEMENTS WERE MADE IN CONTEMPLATION OF DEATH OR
TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER DEATH. 

3.  THE PETITIONER URGES THAT ALL OF THE REVENUE ACTS HAVE GRANTED
LIBERAL DEDUCTIONS IN RESPECT OF INCOME TAX AND ESTATE TAX FOR
CONTRIBUTIONS TO CHARITABLE AND EDUCATIONAL PURPOSES.  HE SAYS THAT IF
THE BENEFACTIONS IN QUESTION HAD BEEN MADE IN THE FORM OF BEQUESTS OR
GIFTS TO TAKE EFFECT AT DEATH THERE WOULD BE NO QUESTION OF THE RIGHT
TO THE CLAIMED DEDUCTIONS.  HE URGES, THEREFORE, THAT WE SHOULD ADOPT A
LIBERAL CONSTRUCTION OF THE ACT TO EFFECTUATE THE INTENT OF CONGRESS
EVEN THOUGH THE PAYMENTS IN QUESTION DO NOT FALL WITHIN THE STRICT
MEANING OF THE WORDS USED.  BUT WE ARE NOT PERMITTED TO SPECULATE AS TO
THE REASONS WHY THE POLICY EVIDENCED WITH RESPECT TO OTHER FORMS OF
GIFT WAS NOT EXTENDED TO CLAIMS UPON PROMISES ENFORCEABLE BY STATE
LAW.  WE ARE BOUND TO OBSERVE THE ALTERATIONS MADE IN THE SUCCESSIVE
ACTS WHICH, IN THE PLAIN MEANING OF THE LANGUAGE EMPLOYED, EXCLUDE
DEDUCTION OF ENFORCEABLE CLAIMS OF THE SORT HERE INVOLVED, EVEN THOUGH
THE CASE BE A HARD ONE.  THE TESTATRIX WAS BOUND TO BRING HER
TRANSACTIONS WITHIN THE LETTER OF THE STATUTORY PROVISIONS AND THE
REGULATIONS AT THE RISK THAT NON-COMPLIANCE MIGHT DEPRIVE HER ESTATE OF
TAX IMMUNITY AS RESPECTS THE PLEDGES. 

THE JUDGMENT IS AFFIRMED. 

FN1  "SEC.  303.  FOR THE PURPOSE OF THE TAX THE VALUE OF THE NET
ESTATE SHALL BE DETERMINED - 

"(A)  IN THE CASE OF A RESIDENT, BY DEDUCTING FROM THE VALUE OF THE
GROSS ESTATE - 

"(1)  SUCH AMOUNTS FOR FUNERAL EXPENSES, ADMINISTRATION EXPENSES,
CLAIMS AGAINST THE ESTATE, UNPAID MORTGAGES UPON, OR ANY INDEBTEDNESS
IN RESPECT TO, PROPERTY  ...  TO THE EXTENT THAT SUCH CLAIMS,
MORTGAGES, OR INDEBTEDNESS WERE INCURRED OR CONTRACTED BONA FIDE AND
FOR AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH,  ... 

"(3)  THE AMOUNT OF ALL BEQUESTS, LEGACIES, DEVISES, OR TRANSFERS, TO
OR FOR THE USE OF THE UNITED STATES, ANY STATE, TERRITORY, ANY
POLITICAL SUBDIVISION THEREOF, OR THE DISTRICT OF COLUMBIA, FOR
EXCLUSIVELY PUBLIC PURPOSES, OR TO OR FOR THE USE OF ANY CORPORATION
ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE,
SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES, INCLUDING THE
ENCOURAGEMENT OF ART AND THE PREVENTION OF CRUELTY TO CHILDREN OR
ANIMALS, NO PART OF THE NET EARNINGS OF WHICH INURES TO THE BENEFIT OF
ANY PRIVATE STOCKHOLDER OR INDIVIDUAL,  ..." 

FN2  33 B.T.A. 671. 

FN3  92 F.2D 667. 

FN4  SEE TURNER V. COMMISSIONER, 85 F.2D 919; COMMISSIONER V. BRYN
MAWR TRUST CO., 87 F.2D 607; PORTER V. COMMISSIONER, 60 F.2D 673;
BRETZFELDER V. COMMISSIONER, 86 F.2D 713; LOCKWOOD V. MCGOWAN, 86 F.2D
1005. 

FN5  REVENUE ACT OF 1916, SEC. 203(A)(1), 39 STAT. 756, 778. 

FN6  REVENUE ACT OF 1918, SEC. 403(A)(1), 40 STAT. 1057, 1098;
REVENUE ACT OF 1921, SEC. 403(A)(1), 42 STAT. 227, 279. 

FN7  ATKINS V. COMMISSIONER, 30 F.2D 761. 

FN8  REVENUE ACT OF 1924, SEC. 303(A)(1), 43 STAT. 253, 305. 

FN9  SEE FERGUSON V. DICKSON, 300 F. 961, 964. 

FN10  REGULATIONS 68, ARTS. 29, 36; REGULATIONS 70(1926 ED.)  ARTS. 
29, 36. 

FN11  SEE ALSO REGULATIONS 80, 1934 ED., ART. 36; REGULATIONS 80,
1937 ED., ART. 36. 

FN12  PORTER V. COMMISSIONER, 23 B.T.A. 1016, 1025; TURNER V.
COMMISSIONER, 31 B.T.A. 446; SAFE DEPOSIT & TRUST CO. V. COMMISSIONER,
35 B.T.A. 259, 265. 

FN13  PORTER V. COMMISSIONER, 60 F.2D 673; BRETZFELDER V.
COMMISSIONER, 86 F.2D 713; GLASER V. COMMISSIONER, 69 F.2D 254; CARNEY
V. BENZ, 90 F.2D 747, 749; LOCKWOOD V. MCGOWAN, 13 F.SUPP.  966,
AFFIRMED 86 F.2D 1005.    FN14  TURNER V. COMMISSIONER, 85 F.2D 919;
COMMISSIONER V. BRYN MAWR TRUST CO., 87 F.2D 607, 609. 

FN15  SEE SEC. 302(C), 44 STAT. 70.  "THE VALUE OF THE GROSS ESTATE
OF THE DECEDENT SHALL BE DETERMINED BY INCLUDING THE VALUE AT THE TIME
OF HIS DEATH OF ALL PROPERTY,  ...  (C) TO THE EXTENT OF ANY INTEREST
THEREIN OF WHICH THE DECEDENT HAS AT ANY TIME MADE A TRANSFER,  ...  IN
CONTEMPLATION OF OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT
AT OR AFTER HIS DEATH, EXCEPT IN CASE OF A BONA FIDE SALE FOR AN
ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH.  ..."  SEE
ALSO SUBSECTION (D), 44 STAT. 71.    MR. JUSTICE CARDOZO TOOK NO PART
IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :















ZERBST V. KIDWELL, 304 U.S. 359 


NO. 782.  ARGUED APRIL 27, 1938.  - DECIDED MAY 16, 1938.  - 92 F.2D
756, REVERSED. 


A PRISONER SENTENCED TO A FEDERAL PENAL INSTITUTION FOR AN OFFENSE
COMMITTED WHILE HE WAS ON PAROLE FROM SUCH AN INSTITUTION MAY BE
REQUIRED BY THE PAROLE BOARD TO SERVE THE UNEXPIRED PORTION OF HIS
FIRST SENTENCE AFTER THE EXPIRATION OF HIS SECOND SENTENCE.  P. 363. 

ZERBST, WARDEN, V. KIDWELL* . 

*TOGETHER WITH NO. 783, ZERBST, WARDEN, V. SMITH; NO. 784, SAME V.
COLLINS; NO. 785, SAME V. OWENS; NO. 786, SAME V. PEEL; NO. 787, SAME
V. JONES; NO. 788, SAME V. STONE; AND NO. 789, SAME V. SULLIVAN, ALSO
ON WRITS OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 303 U.S. 632, TO REVIEW JUDGMENTS AFFIRMING ORDERS OF THE
DISTRICT COURT DISCHARGING PRISONERS FROM CUSTODY, IN HABEAS CORPUS
PROCEEDINGS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS WERE PAROLED BEFORE COMPLETING SENTENCES IN FEDERAL
PRISONS.  FN1  BEFORE EXPIRATION OF THEIR SENTENCES AND WHILE ON
PAROLE, THEY COMMITTED SECOND FEDERAL OFFENSES, FOR WHICH THEY WERE
CONVICTED, SENTENCED, AND THEREAFTER COMPLETELY SERVED SENTENCES IN THE
ATLANTA PENITENTIARY.  RESPONDENTS CONTEND THAT, FROM THE MOMENT OF
THEIR IMPRISONMENT IN THE PENITENTIARY UNDER THE SECOND SENTENCES, THEY
ALSO BEGAN SERVICE OF THE UNEXPIRED PART OF THEIR ORIGINAL SENTENCES. 
IF THIS CONTENTION IS CORRECT RESPONDENTS HAVE ALSO COMPLETELY SERVED
THE UNEXPIRED PARTS OF THE FIRST SENTENCES. 

PETITIONER CONTENDS, HOWEVER, THAT WHEN RESPONDENTS VIOLATED THEIR
PAROLES BY COMMITTING THE SECOND FEDERAL CRIMES, THEY WERE NO LONGER IN
CUSTODY UNDER THE FIRST SENTENCES; SERVICE OF THE FIRST SENTENCES WAS
INTERRUPTED AND SUSPENDED AND WAS NOT RESUMED BEFORE COMPLETION OF
SERVICE OF THE SECOND SENTENCES; AND THAT AFTER COMPLETION OF THE
SECOND SENTENCES, THE BOARD OF PAROLE HAS AUTHORITY TO REQUIRE
COMPLETION OF THE FIRST SENTENCES, SERVICE OF WHICH CEASED DUE TO THE
INTERRUPTION BY PAROLE VIOLATIONS. 

AFTER COMPLETION OF SERVICE OF THE SECOND SENTENCES, RESPONDENTS WERE
HELD IN CUSTODY BY THE WARDEN OF THE PENITENTIARY UNDER WARRANTS OF A
MEMBER OF THE BOARD OF PAROLE ALLEGING VIOLATIONS OF PAROLE.  THE
DISTRICT COURT, BELIEVING THE FIRST SENTENCES "BEGAN TO RUN AGAIN THE
MOMENT  ... (RESPONDENTS WERE) RECEIVED AT THE PENITENTIARY,"
DISCHARGED RESPONDENTS FROM CUSTODY ON HABEAS CORPUS PROCEEDINGS.  FN2
THE COURT OF APPEALS AFFIRMED.  FN3  DUE TO THE IMPORTANCE OF THE
QUESTION INVOLVED, WE GRANTED CERTIORARI.  FN4 

WHEN RESPONDENT COMMITTED A FEDERAL CRIME WHILE ON PAROLE, FOR WHICH
HE WAS ARRESTED, CONVICTED, SENTENCED AND IMPRISONED, NOT ONLY WAS HIS
PAROLE VIOLATED, BUT SERVICE OF HIS ORIGINAL SENTENCE WAS INTERRUPTED
AND SUSPENDED.  THEREAFTER, HIS IMPRISONMENT WAS ATTRIBUTABLE TO HIS
SECOND SENTENCE ONLY, AND HIS RIGHTS AND STATUS AS TO HIS FIRST
SENTENCE WERE "ANALOGOUS TO THOSE OF AN ESCAPED CONVICT."  FN5  NOT
ONLY HAD HE - BY HIS OWN CONDUCT - FORFEITED THE PRIVILEGES GRANTED HIM
BY PAROLE, BUT SINCE HE WAS NO LONGER IN EITHER ACTUAL OR CONSTRUCTIVE
CUSTODY UNDER HIS FIRST SENTENCE, SERVICE UNDER THE SECOND SENTENCE CAN
NOT BE CREDITED TO THE FIRST WITHOUT DOING VIOLENCE TO THE PLAIN INTENT
AND PURPOSE OF THE STATUTES PROVIDING FOR A PAROLE SYSTEM. 

THE PAROLE BOARD AND ITS MEMBERS HAVE BEEN GRANTED SOLE AUTHORITY TO
ISSUE A WARRANT FOR THE ARREST AND RETURN TO CUSTODY OF A PRISONER WHO
VIOLATES HIS PAROLE.  FN6  A MEMBER OF THE BOARD ORDERED THAT
RESPONDENT BE TAKEN INTO CUSTODY AFTER COMPLETION OF THE SECOND
SENTENCE.  UNTIL COMPLETION OF THE SECOND SENTENCE - AND BEFORE THE
WARRANT WAS SERVED - RESPONDENT WAS IMPRISONED ONLY BY VIRTUE OF THE
SECOND SENTENCE.  THERE IS, THEREFORE, NO QUESTION AS TO CONCURRENT
SERVICE OF SENTENCES, UNLESS - AS RESPONDENT CONTENDS - SEC. 723(C)
FN6  REQUIRED THAT THE UNEXPIRED PART OF RESPONDENT'S FIRST SENTENCE
BEGIN WHEN HE WAS IMPRISONED UNDER THE SECOND SENTENCE.  THAT SECTION
PROVIDES: 

"  ...  THE BOARD OF PAROLE  ...  OR ANY MEMBER THEREOF, SHALL HAVE
THE EXCLUSIVE AUTHORITY TO ISSUE WARRANTS FOR THE RETAKING OF ANY
UNITED STATES PRISONER WHO HAS VIOLATED HIS PAROLE.  THE UNEXPIRED TERM
OF IMPRISONMENT OF ANY SUCH PRISONER SHALL BEGIN TO RUN FROM THE DATE
HE IS RETURNED TO THE INSTITUTION, AND THE TIME THE PRISONER WAS ON
PAROLE SHALL NOT DIMINISH THE TIME HE WAS ORIGINALLY SENTENCED TO
SERVE." 

OBVIOUSLY, THIS PROVISION DOES NOT REQUIRE THAT A PAROLE VIOLATOR'S
ORIGINAL, UNEXPIRED SENTENCE SHALL BEGIN TO RUN FROM THE DATE HE IS
IMPRISONED FOR A NEW AND SEPARATE OFFENSE.  IT CAN ONLY REFER TO
REIMPRISONMENT ON THE ORIGINAL SENTENCE UNDER ORDER OF THE PAROLE
BOARD. 

SINCE SERVICE OF THE ORIGINAL SENTENCE WAS INTERRUPTED BY PAROLE
VIOLATION, THE FULL TERM OF THAT SENTENCE HAS NOT BEEN COMPLETED.  JUST
AS RESPONDENT'S OWN MISCONDUCT (PAROLE VIOLATION) HAS PREVENTED
COMPLETION OF THE ORIGINAL SENTENCE, SO HAS IT CONTINUED THE AUTHORITY
OF THE BOARD OVER RESPONDENT UNTIL THAT SENTENCE IS COMPLETED AND
EXPIRES.  DISCRETIONARY AUTHORITY IN THE BOARD TO REVOKE A PAROLE AT
ANY TIME BEFORE EXPIRATION OF A PAROLEE'S SENTENCE WAS PROVIDED - AND
IS NECESSARY - AS A MEANS OF INSURING THE PUBLIC THAT PAROLE VIOLATORS
WOULD BE PUNISHED.  FN7  THE PROPER WORKING OF THE PAROLE SYSTEM
REQUIRES THAT THE BOARD HAVE AUTHORITY TO DISCIPLINE, GUIDE AND CONTROL
PAROLE VIOLATORS WHOSE SENTENCES HAVE NOT BEEN COMPLETED.  IT IS NOT
REASONABLE TO ASSUME THAT CONGRESS INTENDED THAT A PAROLEE WHOSE
CONDUCT MEASURES UP TO PAROLE STANDARDS SHOULD REMAIN UNDER CONTROL OF
THE BOARD UNTIL EXPIRATION OF THE TERM OF HIS SENTENCE, BUT THAT
MISCONDUCT OF A PAROLE VIOLATOR COULD RESULT IN REDUCING THE TIME
DURING WHICH THE BOARD HAS CONTROL OVER HIM TO A PERIOD LESS THAN HIS
ORIGINAL SENTENCE. 

PAROLE IS INTENDED TO BE A MEANS OF RESTORING OFFENDERS WHO ARE GOOD
SOCIAL RISKS TO SOCIETY; TO AFFORD THE UNFORTUNATE ANOTHER OPPORTUNITY
BY CLEMENCY - UNDER GUIDANCE AND CONTROL OF THE BOARD.  FN8  UNLESS A
PAROLE VIOLATOR CAN BE REQUIRED TO SERVE SOME TIME IN PRISON IN
ADDITION TO THAT IMPOSED FOR AN OFFENCE COMMITTED WHILE ON PAROLE, HE
NOT ONLY ESCAPES PUNISHMENT FOR THE UNEXPIRED PORTION OF HIS ORIGINAL
SENTENCE, BUT THE DISCIPLINARY POWER OF THE BOARD WILL BE PRACTICALLY
NULLIFIED.  IF THE PAROLE LAWS SHOULD BE CONSTRUED AS RESPONDENT
CONTENDS, PAROLE MIGHT BE MORE RELUCTANTLY GRANTED, CONTRARY TO THE
BROAD HUMANE PURPOSE OF CONGRESS TO GRANT RELIEF FROM IMPRISONMENT TO
DESERVING PRISONERS.  FN9 

RESPONDENTS HAVE NOT COMPLETED SERVICE OF THEIR ORIGINAL SENTENCES
AND WERE NOT ENTITLED TO RELEASE.  THE CAUSES ARE REVERSED AND REMANDED
TO THE DISTRICT COURT FOR PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  SOME WERE RELEASED WITH CREDIT FOR GOOD CONDUCT BUT ARE TREATED
AS ON PAROLE UNTIL THEIR MAXIMUM TERMS HAVE EXPIRED.  18 U.S.C., C. 22,
SEC. 716(B). 

FN2  19 F.SUPP.  475.  RESPONDENTS FILED SEPARATE PETITIONS FOR HABEAS
CORPUS RAISING SUBSTANTIALLY IDENTICAL ISSUES, WHICH WILL BE TREATED
TOGETHER HERE, AND THE RESPONDENTS WILL BE DEALT WITH AS ONE. 

FN3  92 F.2D 756. 

FN4  303 U.S. 632. 

FN5  ANDERSON V. CORALL, 263 U.S. 193, 196, 197. 

FN6  18 U.S.C., C. 22, SEC. 723(C). 

FN7  THE PAROLE SYSTEM WAS INTENDED TO MAKE PAROLE DISCRETIONARY "AND
REVOCABLE AT ANY TIME ... (THE PAROLE AUTHORITY) MAY ELECT TO REVOKE
IT," CONG. REC., VOL. 45, P. 6374.  "  ...  THE PRISONER IS UNDER THE
ABSOLUTE CONTROL OF THAT BOARD, AND HE MAY BE APPREHENDED AND RETURNED
AT ANY TIME ON VIOLATION OF HIS PAROLE.  THOSE ARE THE SAFEGUARDS FOR
THE BENEFIT OF SOCIETY."  ID., P. 6377. 

THE GOVERNING ACT EXPRESSLY PROVIDES THAT:  "  ...  IF SAID (RETAKEN)
PRISONER SHALL HAVE BEEN RETURNED TO SAID PRISON, HE SHALL BE GIVEN AN
OPPORTUNITY TO APPEAR BEFORE THE BOARD OF PAROLE, AND THE BOARD MAY
THEN, OR AT ANY TIME IN ITS DISCRETION, REVOKE THE ORDER AND TERMINATE
SUCH PAROLE OR MODIFY THE TERMS AND CONDITIONS THEREOF.  ...  "  18
U.S.C., C. 22, SEC. 719. 

FN8  SEE CONG. RECORD, VOL. 45, P. 6374; UNITED STATES V. MURRAY, 275
U.S. 347, 357. 

FN9  CF., UNITED STATES V. FARRELL, 87 F.2D 957, 961. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 
..END :



















GEN. ELECTRIC CO. V. WABASH CO., 304 U.S. 364 


NO. 453.  ARGUED MARCH 4, 7, 1938.  - DECIDED MAY 16, 1938.  - 91 F.2D
904, AFFIRMED. 


1.  PRODUCT CLAIMS 25-27, OF PATENT NO. 1,410,499, TO PACZ, FOR A
FILAMENT FOR ELECTRIC INCANDESCENT LAMPS OR OTHER DEVICES, COMPOSED
SUBSTANTIALLY OF TUNGSTEN AND MADE UP MAINLY OF A NUMBER OF
COMPARATIVELY LARGE GRAINS OF SUCH SIZE AND CONTOUR AS TO PREVENT
SUBSTANTIAL SAGGING AND OFFSETTING DURING A NORMAL OR COMMERCIALLY
USEFUL LIFE FOR SUCH A LAMP OR OTHER DEVICE, HELD VOID FOR WANT OF A
SUFFICIENTLY DEFINITE DISCLOSURE.  R.S. SEC. 4888; 35 U.S.C. SEC. 33. 
P. 368. 

2.  CLAIMED INVENTIONS, IMPROVEMENTS AND DISCOVERIES, TURNING ON
POINTS SO REFINED AS THE GRANULAR STRUCTURE OF PRODUCTS, REQUIRE
PRECISE DESCRIPTIONS OF THE NEW CHARACTERISTIC FOR WHICH PROTECTION IS
SOUGHT.  IN A LIMITED FIELD THE VARIANT MUST BE CLEARLY DEFINED.  P.
369. 

3.  A PATENTEE MAY NOT BROADEN HIS PRODUCT CLAIMS BY DESCRIBING THE
PRODUCT IN TERMS OF FUNCTION.  P. 370. 

4.  A LIMITED USE OF TERMS OF EFFECT OR RESULT, WHICH ACCURATELY
DEFINE THE ESSENTIAL QUALITIES OF A PRODUCT TO ONE SKILLED IN THE ART,
MAY IN SOME INSTANCES BE PERMISSIBLE AND EVEN DESIRABLE, BUT A
CHARACTERISTIC ESSENTIAL TO NOVELTY MAY NOT BE DISTINGUISHED FROM THE
OLD ART SOLELY BY ITS TENDENCY TO REMEDY THE PROBLEMS IN THE ART MET BY
THE PATENT.  P. 371. 

5.  THE DIFFICULTY OF MAKING ADEQUATE DESCRIPTION MAY HAVE SOME
BEARING ON THE SUFFICIENCY OF THE DESCRIPTION ATTEMPTED, BUT IT CAN NOT
JUSTIFY A CLAIM DESCRIBING NOTHING NEW EXCEPT PERHAPS IN FUNCTIONAL
TERMS.  P. 372. 

6.  A PATENTEE WHO DOES NOT DISTINGUISH HIS PRODUCT FROM WHAT IS OLD
EXCEPT BY REFERENCE, EXPRESS OR CONSTRUCTIVE, TO THE PROCESS BY WHICH
HE PRODUCED IT, CAN NOT SECURE A MONOPOLY ON THE PRODUCT BY WHATEVER
MEANS PRODUCED.  P. 373. 

7.  THE PRODUCT CLAIMS IN QUESTION, WHICH SEEK TO MONOPOLIZE THE
PRODUCT HOWEVER CREATED, MAY NOT BE SAVED BY A LIMITATION TO PRODUCTS
MADE IN ACCORDANCE WITH THE PROCESSES SET OUT IN THE SPECIFICATION.  P.
374. 

GENERAL ELECTRIC CO. V. WABASH APPLIANCE CORP. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 676, TO REVIEW THE REVERSAL OF A DECREE FOR
INJUNCTION AND ACCOUNTING IN A PATENT INFRINGEMENT SUIT. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

PETITIONER, GENERAL ELECTRIC COMPANY, BROUGHT THIS PATENT
INFRINGEMENT SUIT BASED ON PACZ PATENT NO. 1,410,499, RELATING TO A
TUNGSTEN FILAMENT FOR INCANDESCENT LAMPS.  THE PATENT, ISSUED MARCH 21,
1922, ON AN APPLICATION FILED FEBRUARY 20, 1917, CONTAINS PROCESS AND
PRODUCT CLAIMS; ONLY THE LATTER ARE HERE INVOLVED.  THE DISTRICT COURT
FOR EASTERN NEW YORK HELD CLAIMS 25, 26 AND 27 VALID AND INFRINGED, AND
GAVE PETITIONER A DECREE FOR AN INJUNCTION AND ACCOUNTING.  17 F.SUPP. 
901.  THE COURT OF APPEALS FOR THE SECOND CIRCUIT HELD THAT
PETITIONER'S PRODUCT WAS ANTICIPATED BY FILAMENTS PRODUCED UNDER THE
TEACHINGS OF THE COOLIDGE PATENT NO. 1,082,933, AND REVERSED WITH
DIRECTIONS TO DISMISS THE BILL OF COMPLAINT.  91 F.2D 904.  THIS
DECISION CONFLICTED WITH THAT HANDED DOWN BY THE COURT OF APPEALS FOR
THE NINTH CIRCUIT, ANRAKU V. GENERAL ELECTRIC CO., 80 F.2D 958, WHICH
HELD THE SAME CLAIMS VALID AND INFRINGED.  TO RESOLVE THE CONFLICT,
THIS COURT GRANTED CERTIORARI. 

IN INCANDESCENT LAMPS, THE TUNGSTEN FILAMENT, THROUGH WHICH THE
ELECTRIC CURRENT PASSES, GROWS MORE LUMINOUS THAN THE CARBON FILAMENT
OF THE EARLY DAYS OF THE ART. THERE WERE FAULTS OF "OFFSETTING" AND
"SAGGING," HOWEVER, AFFECTING THE EFFICIENCY OF THE FIRST TUNGSTEN
FILAMENTS.  "OFFSETTING" OCCURS WHEN, DURING HEATING IN THE USE OF THE
LAMP, THE FILAMENT FORMS CRYSTALS WHICH EXTEND THEIR BOUNDARIES ACROSS
THE ENTIRE DIAMETER OF THE FILAMENT, SUBSTANTIALLY PERPENDICULAR TO ITS
AXIS.  THE CRYSTALS IN THE FILAMENT THUS COME TO HAVE AN APPEARANCE,
SOMEWHAT ANALOGOUS TO THE JOINTS IN A BAMBOO ROD.  LATERAL SLIPPING OF
THE CRYSTALS REDUCES THE CROSS-SECTIONAL AREA AT THE POINT OF CONTACT
OF THE CRYSTALS WITH THE RESULT THAT THE TEMPERATURE AT THAT POINT IS
INCREASED, THUS HASTENING THE BURNOUT, AND THE FILAMENT IS WEAKENED. 
"SAGGING" IS A CHANGE OF POSITION BY THE FILAMENT DURING
INCANDESCENCE.  IT ELONGATES AND THUS IS FORCED OUT OF THE PLANE IT
OCCUPIED BETWEEN FIXED SUPPORTS.  SAGGING HAS MANY OBJECTIONS.  THE
SAGGING FILAMENT MAY TOUCH THE GLASS AND END THE LIFE OF THE LAMP.  IN
GAS-FILLED LAMPS, WHEN SAGGING CAUSES THE COILS TO SPREAD APART, THE
GAS FLOWS IN BETWEEN THE COILS AND UNDULY COOLS THE FILAMENT. 
COMBATTING SAGGING BY ADDITIONAL SUPPORTS IS ALSO SAID TO COOL THE
FILAMENT, AND REDUCE ELECTRICAL EFFICIENCY. 

PACZ UNDERTOOK TO REMEDY THESE FAULTS.  HE CARRIED OUT MANY
EXPERIMENTS, AND HIS 218TH EFFORT, MADE WHILE HE WAS IN THE EMPLOY OF
PETITIONER COMPANY, YIELDED THE DISCOVERY DISCLOSED BY THE PATENT IN
SUIT.  THE SPECIFICATION ASSERTS THAT BY MEANS OF HIS INVENTION "THE
SAGGING IS SUBSTANTIALLY ELIMINATED AND 'OFFSETTING' OF THE FILAMENT IS
SUBSTANTIALLY PREVENTED, DURING A NORMAL OR COMMERCIALLY USEFUL LIFE OF
THE LAMP."  HE BRINGS "INTO INTIMATE ASSOCIATION WITH TUNGSTEN A
MATERIAL (AN ALKALINE SILICATE) WHICH WILL HAVE THE DESIRED INFLUENCE
UPON THE GRAIN GROWTH OF THE METAL."  THE SPECIFICATION CONTINUES AS
FOLLOWS: 

"WHEN THE METAL REACHES THE TEMPERATURE AT WHICH EXTENSIVE GRAIN
GROWTH WOULD ORDINARILY TAKE PLACE, THE PRESENCE OF THIS MATERIAL
INTIMATELY ASSOCIATED WITH THE TUNGSTEN PARTICLES HAS A MARKED EFFECT
ON THE SHAPE AND SIZE OF THE TUNGSTEN GRAINS.  THE INGOT OF TUNGSTEN
THUS PRODUCED, WHETHER IT BE DUE TO THE FACT THAT THE GRAINS HAVE NOT
REACHED THE EQUILIBRIUM GRAIN SIZE OR TO OTHER CAUSES, IS PARTICULARLY
SUSCEPTIBLE TO GRAIN GROWTH DURING SUBSEQUENT HEAT TREATMENTS. 

"THE PROBABLE REASON WHY FILAMENTS MADE ACCORDING TO MY INVENTION DO
NOT SAG, IS THAT THE STRUCTURE IS COMPARATIVELY COARSE GRAINED.  THE
COARSE GRAINED FILAMENT PRODUCED BY MEANS OF MY INVENTION DOES NOT
'OFFSET' SO AS TO CUT SHORT THE LIFE OF THE LAMP APPRECIABLY." 

THE DISTRICT COURT FOUND THAT PACZ'S PATENT EXHIBITED NOVELTY AND
INVENTION; THAT PACZ PRODUCED LARGE CRYSTALS EARLY IN THE LIFE OF THE
LAMP; THAT ALTHOUGH COARSE-GRAINED AND THUS NON-SAGGING, FILAMENTS
MEANT "OFFSETTING" TO THE ART, WHERE IT WAS "COMMON KNOWLEDGE" THAT
GRAINS LARGE ENOUGH TO EXTEND ACROSS THE FILAMENT INDUCED SLIPPAGE,
PACZ PROCURED A PARTICULAR KIND OF COARSE-GRAINED FILAMENT WHICH DID
NOT "OFFSET" BECAUSE OF THE NATURE OF THE BOUNDARIES OF THE GRAINS,
THEIR CONTOUR BEING "A VERY IMPORTANT ELEMENT." 

THE CIRCUIT COURT OF APPEALS HELD THAT THE PACZ PRODUCT WAS
ANTICIPATED BY PATENT NO. 1,082,933, ISSUED DECEMBER 30, 1913, TO
WILLIAM D. COOLIDGE FOR A PROCESS OF PRODUCING DUCTILE TUNGSTEN FOR
INCANDESCENT ELECTRIC LAMP FILAMENTS AND FOR THE PRODUCT ITSELF. 

THE QUESTION BEFORE THIS COURT IS THE VALIDITY OF THE CLAIMS IN
SUIT.  CLAIM 25, WHICH IS TYPICAL, FN1  READS AS FOLLOWS: 

"25.  A FILAMENT FOR ELECTRIC INCANDESCENT LAMPS OR OTHER DEVICES,
COMPOSED SUBSTANTIALLY OF TUNGSTEN AND MADE UP MAINLY OF A NUMBER OF
COMPARATIVELY LARGE GRAINS OF SUCH SIZE AND CONTOUR AS TO PREVENT
SUBSTANTIAL SAGGING AND OFFSETTING DURING A NORMAL OR COMMERCIALLY
USEFUL LIFE FOR SUCH A LAMP OR OTHER DEVICE." 

WE NEED NOT INQUIRE WHETHER PACZ EXHIBITED INVENTION, OR WHETHER HIS
PRODUCT WAS ANTICIPATED.  THE CLAIM IS INVALID ON ITS FACE.  IT FAILS
TO MAKE A DISCLOSURE SUFFICIENTLY DEFINITE TO SATISFY THE REQUIREMENTS
OF R.S. SEC. 4888, 35 U.S.C. SEC. 33.  THAT SECTION REQUIRES THAT AN
APPLICANT FOR A PATENT FILE A WRITTEN DESCRIPTION OF HIS DISCOVERY OR
INVENTION "IN SUCH FULL, CLEAR, CONCISE, AND EXACT TERMS AS TO ENABLE
ANY PERSON SKILLED IN THE ART OR SCIENCE TO WHICH IT APPERTAINS  ...
TO MAKE, CONSTRUCT, COMPOUND AND USE THE SAME; ...  AND HE SHALL
PARTICULARLY POINT OUT AND DISTINCTLY CLAIM THE PART, IMPROVEMENT, OR
COMBINATION WHICH HE CLAIMS AS HIS INVENTION OR DISCOVERY."  WE MAY
ASSUME THAT PACZ HAS SUFFICIENTLY INFORMED THOSE SKILLED IN THE ART HOW
TO MAKE AND USE HIS FILAMENT.  THE STATUTE HAS ANOTHER COMMAND. 
RECOGNIZING THAT MOST INVENTIONS REPRESENT IMPROVEMENTS ON SOME
EXISTING ARTICLE, PROCESS OR MACHINE, AND THAT A DESCRIPTION OF THE
INVENTION MUST IN LARGE PART SET OUT WHAT IS OLD IN ORDER TO FACILITATE
THE UNDERSTANDING OF WHAT IS NEW, CONGRESS REQUIRES OF THE APPLICANT "A
DISTINCT AND SPECIFIC STATEMENT OF WHAT HE CLAIMS TO BE NEW, AND TO BE
HIS INVENTION."  FN2  PATENTS, WHETHER BASIC OR FOR IMPROVEMENTS, MUST
COMPLY ACCURATELY AND PRECISELY WITH THE STATUTORY REQUIREMENTS AS TO
CLAIMS OF INVENTION OR DISCOVERY.  THE LIMITS OF A PATENT MUST BE KNOWN
FOR THE PROTECTION OF THE PATENTEE, THE ENCOURAGEMENT OF THE INVENTIVE
GENIUS OF OTHERS AND THE ASSURANCE THAT THE SUBJECT OF THE PATENT WILL
BE DEDICATED ULTIMATELY TO THE PUBLIC.  FN3  THE STATUTE SEEKS TO GUARD
AGAINST UNREASONABLE ADVANTAGES TO THE PATENTEE AND DISADVANTAGES TO
OTHERS ARISING FROM UNCERTAINTY AS TO THEIR RIGHTS.  FN4  THE INVENTOR
MUST "INFORM THE PUBLIC DURING THE LIFE OF THE PATENT OF THE LIMITS OF
THE MONOPOLY ASSERTED, SO THAT IT MAY BE KNOWN WHICH FEATURES MAY BE
SAFELY USED OR MANUFACTURED WITHOUT A LICENSE AND WHICH MAY NOT."  FN5
THE CLAIMS "MEASURE THE INVENTION."  FN6 PATENTEES MAY REASONABLY
ANTICIPATE THAT CLAIMED INVENTIONS, IMPROVEMENTS AND DISCOVERIES,
TURNING ON POINTS SO REFINED AS THE GRANULAR STRUCTURE OF PRODUCTS,
REQUIRE PRECISE DESCRIPTIONS OF THE NEW CHARACTERISTIC FOR WHICH
PROTECTION IS SOUGHT.  IN A LIMITED FIELD THE VARIANT MUST BE CLEARLY
DEFINED.  THIS WAS ONE IN A SERIES OF PATENTS.  UNITED STATES V.
GENERAL ELECTRIC CO., 272 U.S. 476, 480. 

PACZ DID NOT ADEQUATELY SET OUT "WHAT HE CLAIMS TO BE NEW."  THE
TUNGSTEN FILAMENT "MADE UP MAINLY OF A NUMBER OF COMPARATIVELY LARGE
GRAINS," DIFFERENTIATES THE CLAIMED INVENTION FROM TUNGSTEN DRAWN INTO
A SINGLE CRYSTAL (SCHALLER NO. 1,256,930), AND FROM COOLIDGE'S FINE
GRAINED THORIATED FILAMENT, BUT SERVES APTLY TO DESCRIBE THE PRODUCT OF
EARLIER MANUFACTURE, WITH ITS LARGE REGULAR GRAINS SUBJECT TO
OFFSETTING.  ACCORDING TO THE DISTRICT COURT, THE EARLIEST, SO-CALLED
"SQUIRTED," TUNGSTEN FILAMENTS, ALSO "CONSISTED OF COMPARATIVELY LARGE
CRYSTALS, MANY OF WHICH WERE LARGE ENOUGH TO EXTEND CLEAR ACROSS THE
FILAMENT, BUT THEY SHIFTED."  17 F.SUPP.  AT 902.  THE FAILURE OF THE
PATENTEE TO MAKE CLAIM TO A DISTINCT IMPROVEMENT IS MADE CLEAR BY
COMPARISON OF THE LANGUAGE OF THE CLAIMS UNDER CONSIDERATION WITH
DESCRIPTIONS OF OFFSET DIFFICULTIES RECOGNIZED BY OTHER INVENTORS. 
FN7 

THE CLAIM FURTHER STATES THAT THE GRAINS MUST BE "OF SUCH SIZE AND
CONTOUR AS TO PREVENT SUBSTANTIAL SAGGING AND OFFSETTING" DURING A
COMMERCIALLY USEFUL LIFE FOR THE LAMP.  THE CLAUSE IS INADEQUATE AS A
DESCRIPTION OF THE STRUCTURAL CHARACTERISTICS OF THE GRAINS.  APART
FROM THE STATEMENT WITH RESPECT TO THEIR FUNCTION, NOTHING SAID ABOUT
THEIR SIZE DISTINGUISHES THE EARLIEST FILAMENTS, AND NOTHING WHATEVER
IS SAID WHICH IS DESCRIPTIVE OF THEIR CONTOUR (TERMED BY THE DISTRICT
COURT A "VERY IMPORTANT ELEMENT"), NOT EVEN THAT THEY ARE IRREGULAR. 

THE CLAIM USES INDETERMINATE ADJECTIVES WHICH DESCRIBE THE FUNCTION
OF THE GRAINS TO THE EXCLUSION OF ANY STRUCTURAL DEFINITION, AND THUS
FALLS WITHIN THE CONDEMNATION OF THE DOCTRINE THAT A PATENTEE MAY NOT
BROADEN HIS PRODUCT CLAIMS BY DESCRIBING THE PRODUCT IN TERMS OF
FUNCTION.  FN8  CLAIM 25 VIVIDLY ILLUSTRATES THE VICE OF A DESCRIPTION
IN TERMS OF FUNCTION.  "AS A DESCRIPTION OF THE INVENTION IT IS
INSUFFICIENT AND IF ALLOWED WOULD EXTEND THE MONOPOLY BEYOND THE
INVENTION."  FN9  THE COURT OF APPEALS FOR THE NINTH CIRCUIT RELIED ON
THE FACT THAT THE DESCRIPTION IN THE CLAIMS IS NOT "WHOLLY"
FUNCTIONAL.  FN10  80 F.2D 958, 963.  BUT THE VICE OF A FUNCTIONAL
CLAIM EXISTS NOT ONLY WHEN A CLAIM IS "WHOLLY" FUNCTIONAL, IF THAT IS
EVER TRUE, BUT ALSO WHEN THE INVENTOR IS PAINSTAKING WHEN HE RECITES
WHAT HAS ALREADY BEEN SEEN, AND THEN USES CONVENIENTLY FUNCTIONAL
LANGUAGE AT THE EXACT POINT OF NOVELTY.  FN11 

A LIMITED USE OF TERMS OF EFFECT OR RESULT, WHICH ACCURATELY DEFINE
THE ESSENTIAL QUALITIES OF A PRODUCT TO ONE SKILLED IN THE ART, MAY IN
SOME INSTANCES BE PERMISSIBLE AND EVEN DESIRABLE, BUT A CHARACTERISTIC
ESSENTIAL TO NOVELTY MAY NOT BE DISTINGUISHED FROM THE OLD ART SOLELY
BY ITS TENDENCY TO REMEDY THE PROBLEMS IN THE ART MET BY THE PATENT. 
AND WE MAY DOUBT WHETHER THE LANGUAGE USED IN CLAIM 25, TAKEN BY
ITSELF, CONVEYED DEFINITE MEANING TO THOSE SKILLED IN THE ART OF
INCANDESCENT LIGHTING.  FN12 

THE CIRCUIT COURT OF APPEALS BELOW SUGGESTED THAT "IN VIEW OF THE
DIFFICULTY, IF NOT IMPOSSIBILITY, OF DESCRIBING ADEQUATELY A NUMBER OF
MICROSCOPIC AND HETEROGENEOUS SHAPES OF CRYSTALS, IT MAY BE THAT PACZ
MADE THE BEST DISCLOSURE POSSIBLE,  ...  "  BUT CONGRESS REQUIRES, FOR
THE PROTECTION OF THE PUBLIC, THAT THE INVENTOR SET OUT A DEFINITE
LIMITATION OF HIS PATENT; THAT CONDITION MUST BE SATISFIED BEFORE THE
MONOPOLY IS GRANTED.  FN13  THE DIFFICULTY OF MAKING ADEQUATE
DESCRIPTION MAY HAVE SOME BEARING ON THE SUFFICIENCY OF THE DESCRIPTION
ATTEMPTED, BUT IT CANNOT JUSTIFY A CLAIM DESCRIBING NOTHING NEW EXCEPT
PERHAPS IN FUNCTIONAL TERMS.  IT MAY BE DOUBTED WHETHER ONE WHO
DISCOVERS OR INVENTS A PRODUCT HE KNOWS TO BE NEW WILL EVER FIND IT
IMPOSSIBLE TO DESCRIBE SOME ASPECT OF ITS NOVELTY. 

THE PRODUCT CLAIMS HERE INVOLVED CANNOT BE VALIDATED BY REFERENCE TO
THE SPECIFICATION.  ASSUMING THAT IN A PROPER CASE A CLAIM MAY BE
UPHELD BY REFERENCE TO THE DESCRIPTIVE PART OF THE SPECIFICATION IN
ORDER TO GIVE DEFINITE CONTENT TO ELEMENTS STATED IN THE CLAIM IN BROAD
OR FUNCTIONAL TERMS,  FN14  THE SPECIFICATION OF THE PACZ PATENT DOES
NOT ATTEMPT IN ANY WAY TO DESCRIBE THE FILAMENT, EXCEPT BY MENTION OF
ITS COARSE-GRAINED QUALITY.  EVEN ASSUMING THAT DEFINITENESS MAY BE
IMPARTED TO THE PRODUCT CLAIM BY THAT PART OF THE SPECIFICATION WHICH
PURPORTEDLY DETAILS ONLY A METHOD OF MAKING THE PRODUCT,  FN15  THE
DESCRIPTION OF THE PACZ PROCESS IS LIKEWISE SILENT AS TO THE NATURE OF
THE FILAMENT PRODUCT.  ALTHOUGH IN SOME INSTANCES A CLAIM MAY VALIDLY
DESCRIBE A NEW PRODUCT WITH SOME REFERENCE TO THE METHOD OF PRODUCTION,
FN16  A PATENTEE WHO DOES NOT DISTINGUISH HIS PRODUCT FROM WHAT IS OLD
EXCEPT BY REFERENCE, EXPRESS OR CONSTRUCTIVE, TO THE PROCESS BY WHICH
HE PRODUCED IT, CANNOT SECURE A MONOPOLY ON THE PRODUCT BY WHATEVER
MEANS PRODUCED.  "EVERY PATENT FOR A PRODUCT OR COMPOSITION OF MATTER
MUST IDENTIFY IT SO THAT IT CAN BE RECOGNIZED ASIDE FROM THE
DESCRIPTION OF THE PROCESS FOR MAKING IT, OR ELSE NOTHING CAN BE HELD
TO INFRINGE THE PATENT WHICH IS NOT MADE BY THAT PROCESS."  FN17 

FINALLY, THE PRODUCT CLAIMS MAY NOT BE SAVED BY A LIMITATION TO
PRODUCTS PRODUCED IN ACCORDANCE WITH THE PROCESS SET OUT IN THE
SPECIFICATION.  THIS CONSTRUCTION, THOUGH POSSIBLY OF NO AVAIL AGAINST
RESPONDENT, MIGHT ADD TO THE PROTECTION AFFORDED PETITIONER BY THE
PROCESS CLAIMS, IF THEY ARE VALID, IN VIEW OF ITS APPLICATION TO
FILAMENTS PRODUCED ABROAD.  BUT PUTTING ASIDE QUESTIONS AS TO THE
GENERAL PROPRIETY OF SUCH A CONSTRUCTION,  FN18  UNLESS THE CLAIM USES
LANGUAGE EXPLICITLY REFERRING TO THE METHOD OF PREPARATION, OR
DESCRIBING THE PRODUCT IN PHRASES SUGGESTIVE OF THAT PROCESS,  FN19  TO
SAVE THE PRODUCT CLAIM IN THIS FASHION WOULD CONSTITUTE AN IMPROPER
IMPORTATION INTO THE CLAIM OF A FACTOR NOWHERE DESCRIBED THERE.  FN20
THE CLAIMS IN SUIT SEEK TO MONOPOLIZE THE PRODUCT HOWEVER CREATED, AND
MAY NOT BE REWORDED, IN AN EFFORT TO ESTABLISH THEIR VALIDITY, TO COVER
ONLY THE PRODUCTS OF THE PROCESS DESCRIBED IN THE SPECIFICATION, OR ITS
EQUIVALENT.    FOR REASONS SET OUT, CLAIMS 25, 26, 27 ARE INVALID.  THE
JUDGMENT IS AFFIRMED. 

FN1  "26.  A DRAWN FILAMENT FOR ELECTRIC INCANDESCENT LAMPS OR OTHER
DEVICES, COMPOSED SUBSTANTIALLY OF TUNGSTEN AND MADE UP MAINLY OF A
NUMBER OF COMPARATIVELY LARGE GRAINS OF SUCH SIZE AND CONTOUR AS TO
PREVENT SUBSTANTIAL SAGGING AND OFF-SETTING DURING A NORMAL OR
COMMERCIALLY USEFUL LIFE FOR SUCH A LAMP OR OTHER DEVICE. 

"27.  A FILAMENT FOR ELECTRIC INCANDESCENT LAMPS OR OTHER DEVICES,
COMPOSED OF TUNGSTEN CONTAINING LESS THAN THREE-FOURTHS OF ONE PERCENT
OF NON-METALLIC MATERIAL AND MADE UP MAINLY OF COMPARATIVELY LARGE
GRAINS OF SUCH SIZE AND CONTOUR AS TO PREVENT SUBSTANTIAL SAGGING OR
OFFSETTING DURING A NORMAL OR COMMERCIALLY USEFUL LIFE FOR SUCH A LAMP
OR OTHER DEVICE." 

FN2  MERRILL V. YEOMANS, 94 U.S. 568, 570. 

FN3  CF. THE INCANDESCENT LAMP PATENT, 159 U.S. 465, 474 FF. 

FN4  SEE BROOKS V. FISKE, 15 HOW.  212, 215. 

FN5  PERMUTIT CO. V. GRAVER CORP., 284 U.S. 52, 60; GRANT V. RAYMOND,
6 PET. 218, 247. 

FN6  CONTINENTAL PAPER BAG CO. V. EASTERN PAPER BAG CO., 210 U.S.
405, 419. 

FN7  "WHEN THIS CRYSTALLIZATION BECOMES EXCESSIVE THE CRYSTALS MAY,
IN THE CASE OF A FILAMENT, BECOME SO LARGE AS TO EXTEND ACROSS THE
ENTIRE SECTION OF THE FILAMENT AND THEREUPON THE SECTIONS MAY MOVE
LATERALLY UPON EACH OTHER AND PRODUCE THE CONDITION KNOWN AS
'OFFSETTING.'  I SHALL HEREINAFTER DESCRIBE MORE IN DETAIL THE SPECIAL
METHOD WHICH I EMPLOY FOR MINIMIZING THE LOSS IN DUCTILITY AND FOR
PREVENTING THIS OFFSETTING EFFECT."  COOLIDGE PATENT, NO. 1,082,933. 

"SUCH CRYSTALS SEEM TO INCREASE IN SIZE IN MUCH THE SAME MANNER AS
CRYSTALS FORMED IN LIQUID SOLUTIONS, AND, IF THE CRYSTALS BECOME LARGE
ENOUGH TO EXTEND ALMOST OR ENTIRELY ACROSS THE FILAMENT, ADJACENT
CRYSTALS TEND TO SLIP ALONG THEIR CLEAVAGE PLANES THEREBY GIVING THE
FILAMENT THE OFFSET OR FAULTED APPEARANCE ABOVE REFERRED TO."  MYERS
AND HALL PATENT, NO. 1,363,162. 

FN8  HOLLAND FURNITURE CO. V. PERKINS GLUE CO., 277 U.S. 245, 256
258, AND CASES CITED. 

FN9  277 U.S. AT 258. 

FN10  PRESUMABLY THAT COURT WOULD HAVE ASSENTED TO THE CONDEMNATION
OF OTHER PRODUCT CLAIMS OF THE PATENT IN SUIT, CONTAINING EVEN LESS
DESCRIPTION THAN THE ONES UNDER DISCUSSION: 

"28.  A COILED FILAMENT COMPOSED SUBSTANTIALLY OF TUNGSTEN AND CAPABLE
OF USE IN AN ELECTRIC INCANDESCENT LAMP WITHOUT EITHER SUBSTANTIAL
SAGGING OR OFFSETTING DURING A NORMAL OR COMMERCIALLY USEFUL LIFE. 

"29.  A COILED FILAMENT COMPOSED MAINLY OF DRAWN TUNGSTEN AND CAPABLE
OF USE IN AN ELECTRIC INCANDESCENT LAMP WITHOUT SUBSTANTIAL SAGGING AND
WITHOUT SUBSTANTIAL OFFSETTING DURING A NORMAL OR COMMERCIALLY USEFUL
LIFE." 

FN11  SEE GYNEX CORP. V. DILEX INSTITUTE, 85 F.2D 103, 105; DAVIS CO.
V. NEW DEPARTURE CO., 217 F. 775, AT 782. 

FN12  THERE IS NO SHOWING WHETHER, UNDER ESTABLISHED PRINCIPLES IN
THE SCIENCE, THE LANGUAGE INDICATED GRAINS EXTENDING ACROSS THE WIDTH
OF FILAMENT, AND IF SO WHETHER THE BOUNDARIES WERE IRREGULAR, OR
REGULAR BUT NOT PERPENDICULAR TO THE AXIS OF THE FILAMENT; OR WHETHER
THE LANGUAGE INDICATED GRAINS LARGER THAN THE FINE GRAINS OF COOLIDGE'S
THORIATED FILAMENT BUT NOT LARGE ENOUGH TO EXTEND ACROSS THE ENTIRE

INDEED, THOSE MERELY SKILLED MIGHT HAVE SUSPECTED THE ABSENCE OF
CRYSTALS LARGE ENOUGH TO EXTEND ACROSS THE ENTIRE SECTION OF THE
FILAMENT, IN VIEW OF THE EFFORTS OF OTHER PATENTEES TO AVOID SUCH
CRYSTALS, (COOLIDGE, NO. 1,082,933, P. 2, 1.  13; MYERS AND HALL, NO.
1,363,162, P. 1, 1.  56), AND IN VIEW OF THE "COMMON KNOWLEDGE IN THE
ART THAT WHERE GRAIN BOUNDARIES, LARGE ENOUGH TO EXTEND ACROSS THE
FILAMENT, WERE PRODUCED, THERE WOULD BE BOUND TO BE SLIPPAGE" (17
F.SUPP.  901, AT 903); YET THOSE ARE THE CRYSTALS FOUND IN RESPONDENT'S
LAMPS. 

FN13  DIFFERENT CONSIDERATIONS MAY APPLY UNDER THE ACT OF MAY 23,
1930, C. 312, SEC. 2, 46 STAT. 376, 35 U.S.C. SEC. 33, PROVIDING THAT
NO "PLANT PATENT SHALL BE DECLARED INVALID ON THE GROUND OF NON
COMPLIANCE WITH THIS SECTION IF THE DESCRIPTION IS MADE AS COMPLETE AS
IS REASONABLY POSSIBLE." 

FN14  COMPARE MITCHELL V. TILGHMAN, 19 WALL.  287, 391; WESTINGHOUSE
V. BOYDEN POWER BRAKE CO., 170 U.S. 537, 557-558. 

FN15  COMPARE HOLLAND FURNITURE CO. V. PERKINS GLUE CO., 277 U.S. AT
255, WITH UNITED STATES REPAIR & GUARANTEE CO. V. ASSYRIAN ASPHALT CO.,
183 U.S. 591, AT 600-601. 

FN16  CF. DUNN WIRE-CUT LUG BRICK CO. V. TORONTO FIRE CLAY CO., 259
F. 258, 261; TRUSSELL MFG. CO. V. WILSON-JONES CO., 50 F.2D 1027,
1029. 

FN17  COCHRANE V. BADISCHE ANILIN & SODA FABRIK, 111 U.S. 293, 310. 
SEE ALSO HIDE-ITE LEATHER CO. V. FIBER PRODUCTS CO., 226 F. 34, 36; CF.
MAURER V. DICKERSON, 113 F. 870, 874. 

SEE ALSO NATIONAL CARBON CO. V. WESTERN SHADE CLOTH CO., 93 F.2D 94,
97: 

"IT HAS BEEN SAID THAT A CLAIM FOR A PRODUCT PRODUCED BY ANY PROCESS
WHICH WILL PRODUCE A LIKE RESULT COVERS THE PRODUCT ONLY WHEN MADE BY
EQUIVALENT PROCESSES.  PICKHARDT V. PACKARD (C.C.), 22 F. 530." 

FN18  STEINFUR PATENTS CORP. V. WILLIAM BEYER, INC., 62 F.2D 238,
241; BUONO V. YANKEE MAID DRESS CORP., 77 F.2D 274, 279; DUNN WIRE-CUT
LUG BRICK CO. V. TORONTO FIRE CLAY CO., 259 F. 258, 261-262. 

FN19  SMITH V. GOODYEAR DENTAL VULCANITE CO., 93 U.S. 486; COCHRANE
V. BADISCHE ANILIN & SODA FABRIK, 111 U.S. 293, 310; PLUMMER V.
SARGENT, 120 U.S. 442, 448; DOWNES V. TETER-HEANY DEVELOPMENT CO., 150
F. 122; HIDE-ITE LEATHER CO. V. FIBER PRODUCTS CO., 226 F. 34. 

FN20  COMPARE MCCARTY V. LEHIGH VALLEY R. CO., 160 U.S. 110, 116;
ALTOONA PUBLIX THEATRES V. AMERICAN TRI-ERGON CORP., 294 U.S. 477,
487. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









CROWN CORK CO. V. GUTMANN CO., 304 U.S. 159 


NO. 72.  ARGUED DECEMBER 13, 1937.  - DECIDED MAY 2, 1938.  - 86 F.2D
698, REVERSED. 


1.  REVIEW ON CERTIORARI IS CONFINED TO THE QUESTIONS PRESENTED BY THE
PETITION FOR THE WRIT.  P. 161. 

2.  ABANDONMENT, AS A DEFENSE IN A SUIT FOR PATENT INFRINGEMENT, MUST
BE PLEADED OR NOTICED, UNDER R.S. SEC. 4920.  P. 165. 

AN APPLICANT FOR PATENT DOES NOT ABANDON AN INVENTION BY WITHDRAWING
THE DISCLOSURE OF IT, AND A CORRESPONDING CLAIM, FROM AN EARLIER
APPLICATION, WHEN THE SAME DISCLOSURE IS KEPT CONTINUOUSLY BEFORE THE
PATENT OFFICE THROUGH HIS SUCCESSIVE DIVISIONAL APPLICATIONS. 

THE CONTINUITY SO MAINTAINED SHOWS AN INTENTION TO RETAIN, NOT TO
ABANDON, THE INVENTION. 

3.  W APPLIED FOR AND OBTAINED PATENT FOR A METHOD OF APPLYING
"CENTER SPOTS" TO THE CORK CUSHIONS OF CROWN CAPS USED TO SEAL BOTTLES
CONTAINING BEVERAGES UNDER PRESSURE, THE CENTER SPOTS SERVING TO
PREVENT CONTACT OF THE LIQUID WITH THE CORK.  THE PATENTED METHOD
REQUIRED SIMULTANEOUS APPLICATION OF PRESSURE AND HEAT TO THE CENTER
SPOT TO MAKE IT STICK TO THE CORK CUSHION IN THE CAP AT THE TIME OF
ASSEMBLY.  A DISCLOSURE OF THE MEANS OF APPLYING THE HEAT BY PREHEATING
THE CROWN CAPS WAS ELIMINATED FROM THE APPLICATION BEFORE THE PATENT
ISSUED, BUT WAS PRESERVED IN DIVISIONAL APPLICATIONS.  BEFORE THE
PATENT ISSUED, J FILED APPLICATION CLAIMING THIS MEANS OF PREHEATING
AND LATER OBTAINED PATENT.  A YEAR THEREAFTER, BUT MORE THAN TWO YEARS
AFTER THE DATE OF HIS OWN PATENT, W COPIED J'S CLAIMS IN A DIVISIONAL
APPLICATION, UPON WHICH, AFTER INTERFERENCE PROCEEDINGS, HE WAS AWARDED
A PATENT.  HELD: THAT, IN THE ABSENCE OF INTERVENING RIGHTS, THE DELAY
OF MORE THAN TWO YEARS NEEDED NO SPECIAL EXCUSE AND DID NOT INVALIDATE
THE DIVISIONAL PATENT.  WEBSTER CO. V. SPLITDORF CO., 264 U.S. 463,
DISTINGUISHED.  P. 165. 

4.  IN THE ABSENCE OF ABANDONMENT OR INTERVENTION OF ADVERSE RIGHTS,
MERE DELAY OF NOT MORE THAN TWO YEARS IN FILING DIVISIONAL APPLICATION
AFTER AN INTERVENING PATENT OR PUBLICATION, DOES NOT OPERATE TO ENLARGE
THE PATENT MONOPOLY BEYOND THAT CONTEMPLATED BY THE PATENT LAW.  R.S.
SEC. 4886.  P. 167. 

CROWN CORK & SEAL CO. V. FERDINAND GUTMANN CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 664, TO REVIEW THE REVERSAL OF A DECREE, 14
F.SUPP.  255, SUSTAINING TWO PATENTS AND ENJOINING INFRINGEMENT. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

PETITIONER SUED RESPONDENT IN THE DISTRICT COURT FOR EASTERN NEW YORK
TO ENJOIN INFRINGEMENTS OF PATENTS, TWO OF WHICH ARE HERE INVOLVED. 
ONE IS WARTH REISSUE PATENT, NO. 19,117, DATED MARCH 20, 1934.  THE
OTHER IS WARTH PATENT, NO. 1,967,195, DATED JULY 17, 1934, A DIVISIONAL
PATENT.  BOTH RELATE TO METHODS FOR APPLYING SMALL DISKS OF PAPER OR
FOIL, KNOWN AS CENTER SPOTS, TO CORK CUSHIONS OF CROWN CAPS.  THESE
CAPS ARE USED TO SEAL BOTTLES CONTAINING PRESSURE BEVERAGES.  THE
CENTER SPOT PREVENTS CONTACT OF THE LIQUID WITH THE CORK.  THE DISTRICT
COURT ADJUDGED BOTH PATENTS VALID AND INFRINGED.  14 F.SUPP.  255.  THE
CIRCUIT COURT OF APPEALS REVERSED, HOLDING THE REISSUE PATENT NOT
INFRINGED AND THE DIVISIONAL ONE INVALID BECAUSE OF LACHES IN FILING
THE APPLICATION ON WHICH IT WAS GRANTED.  86 F.(2D) 698. 

THE QUESTIONS PRESENTED BY THE PETITION FOR THE WRIT, GRANTED 302
U.S. 664, ARE THESE: 

1.  "DOES THIS COURT'S DECISION IN WEBSTER CO. V. SPLITDORF CO. (264
U.S. 463) MEAN THAT, EVEN IN THE ABSENCE OF INTERVENING ADVERSE RIGHTS,
AN EXCUSE MUST BE SHOWN FOR A LAPSE OF MORE THAN TWO YEARS IN
PRESENTING CLAIMS IN A DIVISIONAL APPLICATION REGULARLY FILED AND
PROSECUTED IN ACCORDANCE WITH PATENT OFFICE RULES?" 

2.  "WHERE THERE HAS BEEN MORE THAN TWO YEARS DELAY IN ASSERTING
SPECIFIC CLAIMS IN A DIVISIONAL APPLICATION, IS IT AN EXCUSE FOR THE
DELAY THAT THERE WERE CLAIMS IN THE PARENT PATENT WHICH, ON THEIR FACE,
COVERED AND WERE REASONABLY BELIEVED TO COVER, THE SUBJECT-MATTER OF
THE DIVISIONAL CLAIMS, EVEN IF A COURT LATER INTERPRETED THE PARENT
PATENT CLAIMS NOT TO COVER SUCH SUBJECT-MATTER?" 

OUR CONSIDERATION OF THE CASE WILL BE LIMITED TO THESE QUESTIONS. 
WASHINGTON COACH CO. V. LABOR BOARD, 301 U.S. 142, 146.  MOREHEAD V.
N.Y. EX REL. TIPALDO, 298 U.S. 587, 604, 605.  CLARK V. WILLIARD, 294
U.S. 211, 216.  ALICE STATE BANK V. HOUSTON PASTURE CO., 247 U.S. 240,
242.  THE FIRST CALLS FOR DECISION UPON A SINGLE POINT.  IT
SPECIFICALLY ASSUMES THE ABSENCE OF INTERVENING RIGHTS AND THAT THE
APPLICATION WAS APPROPRIATELY MADE.  THERE IS NO QUESTION AS TO THE
VALIDITY OF EITHER THE ORIGINAL OR REISSUE PATENTS. 

WARTH FILED HIS FIRST APPLICATION JANUARY 7, 1927, AND HIS SECOND
NOVEMBER 7, 1930.  FN1  FROM THESE CAME THE ORIGINAL PATENT, JANUARY 6,
1931.  IT WAS TO CORRECT AN ERROR IN THE SPECIFICATION THAT THE REISSUE
PATENT WAS GRANTED.  BEFORE ISSUE OF THE ORIGINAL PATENT JOHNSON,
NOVEMBER 26, 1929, FILED APPLICATION ON WHICH A PATENT ISSUED APRIL 5,
1932.  APRIL 4, 1933, TWO YEARS AND THREE MONTHS AFTER THE ORIGINAL
PATENT WAS GRANTED WARTH, HE CARVED FROM HIS SECOND APPLICATION A
DIVISIONAL ONE IN WHICH HE COPIED THE CLAIMS OF THE JOHNSON PATENT.  IN
THE INTERFERENCE DECLARED UPON THE CONFLICT, THE PATENT OFFICE HELD
WARTH'S DIVISIONAL APPLICATION ENTITLED TO THE FILING DATE OF HIS FIRST
ONE, AND AWARDED THE CLAIMS OF THE JOHNSON PATENT TO HIM AS PRIOR
INVENTOR.  THESE ARE THE CLAIMS HELD TOO LATE BY THE CIRCUIT COURT OF
APPEALS. 

THE CLAIMS OF THE REISSUE PATENT INVOLVED ARE SHOWN IN THE MARGIN. 
FN2  THE IMPORTANT FEATURE IS SIMULTANEOUS APPLICATION OF PRESSURE AND
HEAT TO THE CENTER SPOT TO MAKE IT STICK TO THE CORK CUSHION IN THE
CAP.  NEITHER THESE NOR ANY OTHER CLAIMS OF THE PATENT SPECIFY MEANS TO
BE EMPLOYED TO FURNISH THE HEAT.  THE CLAIMS IN SUIT OF THE DIVISIONAL
PATENT  FN3  COVER MEANS TO SUPPLY HEAT TO BE APPLIED TO THE CENTER
SPOTS WHEN SUBJECTED TO PRESSURE.  THE IMPORTANT FEATURE IS "HEATING
THE PADS (CORK CUSHIONS) IN THE CAPS" BEFORE PLACING THE SPOTS UPON
THEM. 

THE FIRST APPLICATION, JANUARY 7, 1927, STATED:  "IT MAY BE DESIRABLE
TO SECURE THE METAL FOIL SPOT IN POSITION, PRIOR TO THE HEAT AND
PRESSURE STEPS, SUFFICIENTLY TO PREVENT DISLODGEMENT OF THE SPOT DURING
ANY INTERVAL BETWEEN ASSEMBLING AND FINAL STICKING.  THIS MAY BE
ACCOMPLISHED, FOR EXAMPLE, BY PREHEATING THE ASSEMBLED CROWN, TO SOFTEN
THE COATING AS SOON AS THE METAL FOIL SPOT IS DEPOSITED."  THAT
APPLICATION CONTAINED CLAIMS, CONSTRUED BY THE CIRCUIT COURT OF APPEALS
TO BE BROAD ENOUGH TO COVER THAT DISCLOSURE.  THE PATENT OFFICE CALLED
FOR DRAWINGS TO ILLUSTRATE MEANS FOR CARRYING OUT THE METHOD CLAIMED. 
ACCORDINGLY, WARTH SHOWED, BY WAY OF ILLUSTRATION, THAT HEAT MIGHT BE
FURNISHED BY THE PUNCH USED TO CUT THE SPOTS FROM THE ADHESIVE MATERIAL
AND PLACE THEM UPON THE CORK IN THE CAP, WHERE BY THE SAME STROKE OF
THE PLUNGER, THEY MIGHT BE SUBJECTED TO PRESSURE.  WHEN HE FILED THE
DRAWINGS, DECEMBER 3, 1930, HE CANCELED FROM THE FIRST APPLICATION THE
STATEMENT JUST QUOTED AND CANCELED THE CLAIMS ORIGINALLY FILED.  THE
SECOND APPLICATION HAD ALREADY BEEN FILED.  BOTH CONTAINED ANOTHER
STATEMENT:  "IN CARRYING OUT THE INVENTION ACCORDING TO WHAT IS NOW
CONSIDERED THE BEST PRACTICE, THE COATING WILL BE SOFTENED BY HEAT
AFTER THE CROWN IS ASSEMBLED.  THIS MAY BE ACCOMPLISHED IN ANY SUITABLE
MANNER, AS BY A HEATED PLUNGER OR A PLUNGER AND HEATED TABLE.  THE HEAT
SOFTENS THE COATING AND RENDERS IT ADHESIVE.  ...  "  SO FAR AS
CONCERNS THE QUESTION UNDER CONSIDERATION, IT IS BROAD ENOUGH TO
INCLUDE MEANS FOR SUPPLYING HEAT BY THE PUNCH AS SHOWN BY THE DRAWINGS,
AND THE PREHEATING METHOD CLAIMED IN THE DIVISIONAL APPLICATION. 

THE DISTRICT COURT FOUND NO ADVERSE USE OF THE PREHEATING METHOD
PRIOR TO THE FILING DATE OF THE APPLICATION FOR THE REISSUE PATENT. 
THE CIRCUIT COURT OF APPEALS DID NOT DISTURB THAT FINDING.  IT FOUND
THAT WARTH'S DISCLOSURE OF THE PREHEATING METHOD WAS CONTINUOUSLY
BEFORE THE PATENT OFFICE FROM THE DATE OF HIS FIRST APPLICATION, BUT
THAT THERE WAS NO CLAIM FOR THE PREHEATING METHOD ON FILE FROM DECEMBER
3, 1930, UNTIL APRIL 4, 1933, WHEN HE FILED APPLICATION FOR THE
DIVISIONAL PATENT.  IT HELD, CITING WEBSTER CO. V. SPLITDORF CO.,
SUPRA, THAT PRIMA FACIE THE TWO YEAR LIMIT APPLIES TO DIVISIONAL
APPLICATIONS, AND THAT AN APPLICANT WHO WAITS LONGER BEFORE CLAIMING AN
INVENTION DISCLOSED IN HIS PATENT MUST JUSTIFY HIS DELAY BY PROOF OF
SOME EXCUSE.  IT SAID, 86 F.(2D) 702, "NO SUCH EXCUSE APPEARS HERE. 
HAD WARTH CHOSEN TO RETAIN IN HIS PARENT APPLICATION BROAD GENERIC
CLAIMS WHICH MIGHT COVER THE PREHEATING METHOD, THEN INDEED THE
SPLITDORF RULE MIGHT NOT BE APPLICABLE  ...  BUT  ...  FOR A PERIOD OF
MORE THAN TWO YEARS WARTH APPARENTLY DID NOT WISH TO CLAIM THE
PREHEATING METHOD, HAVING DELIBERATELY CANCELED THE PREHEATING
SPECIFICATION FROM HIS ORIGINAL APPLICATION AND SHAPED HIS CLAIMS SO AS
TO EXCLUDE IT AND HIS PATENT HAVING BEEN GRANTED JANUARY 6, 1931.  HE
MADE NO CLAIM FOR PREHEATING UNTIL MORE THAN TWO YEARS THEREAFTER,
NAMELY, APRIL 4, 1933.  IN THE MEANTIME A PATENT CONTAINING CLAIMS FOR
THE PREHEATING METHOD HAD BEEN GRANTED TO JOHNSON ON APRIL 5, 1932, AND
IT WAS WARTH'S DISCOVERY OF THIS FACT WHICH STIRRED HIM TO ACTION.  AS
IN THE SPLITDORF CASE, HAD IT NOT BEEN FOR THIS COMPETITOR, WARTH MIGHT
NEVER HAVE CONSIDERED THE SUBJECT WORTH CLAIMING AS AN INVENTION."  THE
COURT MEANT THAT WARTH HAD REALLY ABANDONED HIS INVENTION.  SEE WESTERN
ELECTRIC CO. V. GENERAL TALKING PICTURES CO., 91 F.(2D) 922, 927. 

BUT, AS ABANDONMENT WAS NOT PLEADED AS A DEFENSE, R.S. SEC. 4920, AND
AS WARTH'S DISCLOSURE WAS CONTINUOUSLY BEFORE THE PATENT OFFICE,
CLEARLY WITHOUT ANY SIGNIFICANCE ADVERSE TO THE PETITIONER IS THE FACT
THAT WARTH FORMALLY CANCELED ONE DISCLOSURE FROM HIS FIRST APPLICATION
AND WITH IT CLAIMS THOUGHT BY THE CIRCUIT COURT OF APPEALS BROAD ENOUGH
TO COVER THE DISCLOSURE.  THE CONTINUITY SO MAINTAINED SHOWS THAT WARTH
INTENDED TO RETAIN, NOT TO ABANDON, THE DISCLOSED INVENTION.  SEE
GODFREY V. EAMES, 1 WALL.  317, 325-326.  CLARK BLADE & RAZOR CO. V.
GILLETTE SAFETY RAZOR CO., 194 FED. 421, 422. 

THIS CASE IS NOT LIKE WEBSTER CO. V. SPLITDORF CO., SUPRA.  IN THAT
CASE, THERE CAME HERE THE QUESTION OF THE VALIDITY OF CLAIMS OF A
PATENT ISSUED TO KANE IN 1918.  IN 1910 KANE HAD FILED HIS FIRST
APPLICATION, ON WHICH PATENT ISSUED IN 1916.  IN 1913 A PATENT COVERING
THE SAME SUBJECT-MATTER ISSUED TO THE PODLESAKS, TO WHOM A REISSUE
PATENT WAS GRANTED IN 1915.  LATER IN 1915, KANE FILED A DIVISIONAL
APPLICATION WHICH COPIED THE CLAIMS OF THE PODLESAK PATENT.  THEY WERE
DECIDED IN FAVOR OF THE PODLESAKS.  THEREAFTER, JUNE 17, 1918, KANE
AMENDED HIS DIVISIONAL APPLICATION BY ADDING CLAIMS WHICH WERE ALLOWED,
AND SEPTEMBER 24, 1918, PATENT ISSUED TO WEBSTER ELECTRIC COMPANY,
KANE'S ASSIGNEE.  IN 1915, IT HAD BROUGHT THE SUIT AGAINST THE
SPLITDORF COMPANY.  OCTOBER 25, 1918, IT FILED A SUPPLEMENTAL BILL
BRINGING IN CLAIMS OF THE PATENT ISSUED SEPTEMBER 24, 1918. 

THIS COURT POINTED OUT (P. 465) THAT THE CLAIMS IN QUESTION "WERE FOR
THE FIRST TIME PRESENTED TO THE PATENT OFFICE, BY AN AMENDMENT TO A
DIVISIONAL APPLICATION EIGHT YEARS AND FOUR MONTHS AFTER THE FILING OF
THE ORIGINAL APPLICATION, FIVE YEARS AFTER THE DATE OF THE ORIGINAL
PODLESAK PATENT, DISCLOSING THE SUBJECT MATTER, AND THREE YEARS AFTER
THE COMMENCEMENT OF THE PRESENT SUIT."  WE SUGGESTED THAT IT WAS
DOUBTFUL WHETHER THE CLAIMS WERE NOT SO ENLARGED AS TO PRECLUDE
ALLOWANCE UNDER THE ORIGINAL APPLICATION; WE FOUND THAT KANE, DEEMING
THEIR SUBJECT-MATTER NOT INVENTION, DID NOT INTEND TO ASSERT THEM, AND,
PRIOR TO 1918, DID NOT ENTERTAIN AN INTENTION TO HAVE THEM COVERED BY
PATENT.  DURING ALL OF THIS TIME THEIR SUBJECT MATTER WAS DISCLOSED AND
IN GENERAL USE; KANE AND HIS ASSIGNEE SIMPLY STOOD BY AND AWAITED
DEVELOPMENTS.  IT WAS UPON THE REASONS SO STATED THAT THIS COURT
DECLARED (P. 466) "WE HAVE NO HESITATION IN SAYING THAT THE DELAY WAS
UNREASONABLE, AND, UNDER THE CIRCUMSTANCES SHOWN BY THE RECORD,
CONSTITUTES LACHES, BY WHICH THE PETITIONER LOST WHATEVER RIGHTS IT
MIGHT OTHERWISE HAVE BEEN ENTITLED TO." 

UPON A REVIEW OF EARLIER CASES WE CONDEMNED THE LOWER COURT'S
STATEMENT (283 FED. 83, 93) THAT CHAPMAN V. WINTROATH, 252 U.S. 126,
FIXED THE TIME WITHIN WHICH APPLICATION FOR A DIVISIONAL PATENT MIGHT
BE MADE AT TWO YEARS FROM DATE OF THE ISSUE OF THE PARENT PATENT.  WE
SHOWED THAT THE CHAPMAN CASE HELD THAT AN INVENTOR, WHOSE APPLICATION
DISCLOSED BUT DID NOT CLAIM AN INVENTION LATER PATENTED TO ANOTHER, WAS
NOT REQUIRED WITHIN ONE YEAR AFTER ISSUE OF THE OTHER PATENT, TO FILE
DIVISIONAL APPLICATION CLAIMING THE INVENTION AND SO TO RAISE ISSUE OF
INTERFERENCE, BUT THAT, BY ANALOGY, THE TWO-YEAR PERIOD UNDER R.S. SEC.
4886  FN4  APPLIED RATHER THAN THE ONE-YEAR PERIOD OF R.S. SEC. 4894,
FN5  AND THAT THE OPINION DID NOT FIX A HARD AND FAST RULE TO BE
APPLIED IN EVERY CASE OF A DIVISIONAL APPLICATION.  THEN WE SAID (P.
471):  "OUR CONCLUSION, THEREFORE, IS THAT, IN CASES INVOLVING LACHES,
EQUITABLE ESTOPPEL, OR INTERVENING PRIVATE OR PUBLIC RIGHTS, THE TWO
YEAR TIME LIMIT PRIMA FACIE APPLIES TO DIVISIONAL APPLICATIONS, AND CAN
ONLY BE AVOIDED BY PROOF OF SPECIAL CIRCUMSTANCES JUSTIFYING A LONGER
DELAY.  IN OTHER WORDS, WE FOLLOW IN THAT RESPECT THE ANALOGY FURNISHED
BY THE PATENT REISSUE CASES."  THAT STATEMENT IS NOT DIRECTLY
APPLICABLE TO THE PRECISE QUESTION OF LACHES UPON WHICH THE CASE
TURNED, BUT WAS MADE IN REFERENCE TO THE QUESTION ARISING UPON THE
LOWER COURT'S ERRONEOUS INTERPRETATION OF CHAPMAN V. WINTROATH.  SEE
WAGENHORST V. HYDRAULIC STEEL CO., 27 F.(2D) 27, 29-30.  WIREBOUNDS
PATENTS CO. V. SARANAC CORP., 37 F.(2D) 830, 840-841.  UTAH RADIO
PRODUCTS CO. V. BOUDETTE, 78 F.(2D) 793, 799.  IT IS CLEAR THAT, IN THE
ABSENCE OF INTERVENING ADVERSE RIGHTS, THE DECISION IN WEBSTER CO. V.
SPLITDORF CO. DOES NOT MEAN THAT AN EXCUSE MUST BE SHOWN FOR A LAPSE OF
MORE THAN TWO YEARS IN PRESENTING THE DIVISIONAL APPLICATION.  WHERE
THERE IS NO ABANDONMENT, MERE DELAY IN FILING A DIVISIONAL APPLICATION
FOR NOT MORE THAN TWO YEARS AFTER AN INTERVENING PATENT OR PUBLICATION,
DOES NOT OPERATE TO ENLARGE THE PATENT MONOPOLY BEYOND THAT
CONTEMPLATED BY THE STATUTE.  BY R.S. SEC. 4886, DELAY IN FILING AN
APPLICATION FOR NOT MORE THAN TWO YEARS AFTER AN INTERVENING PATENT OR
PUBLICATION DOES NOT BAR A PATENT UNLESS THE INVENTION "IS PROVED TO
HAVE BEEN ABANDONED."  SEE WIREBOUNDS PATENTS CO. V. SARANAC CORP., 37
F.(2D) 830, 840, 841; 65 F.(2D) 904, 905, 906.  AND, AS NONE NEED BE
SHOWN, THERE IS NO OCCASION TO DECIDE WHETHER THE FACTS STATED IN THE
SECOND QUESTION ARE SUFFICIENT TO CONSTITUTE AN EXCUSE FOR THE DELAY
REFERRED TO. 

AS OUR DECISION IS LIMITED TO THE FIRST QUESTION PRESENTED, THE
JUDGMENT OF THE CIRCUIT COURT OF APPEALS WILL BE REVERSED AND THE CASE
WILL BE REMANDED TO THAT COURT FOR DECISION OF THE OTHER ISSUES IN THE
CASE IN ACCORDANCE WITH THIS OPINION.  REVERSED. 

FN1  THE FIRST APPLICATION EXTENDED TO MATERIALS TO BE USED IN MAKING
CENTER SPOTS AS WELL AS TO METHODS FOR APPLYING THEM.  THE SECOND
APPLICATION, BECAUSE OF A REQUIREMENT OF THE PATENT OFFICE, OMITTED
DISCLOSURES AS TO MATERIALS BUT INCLUDED THOSE AS TO METHODS THAT THE
FIRST CONTAINED.    FN2  CLAIM 1.  "THE IMPROVED METHOD OF
MANUFACTURING CAPS OF THE TYPE HAVING AN INTERIOR DISC OF CUSHION
MATERIAL PROVIDED ON ITS EXPOSED FACE WITH A CENTER SPOT, WHICH
COMPRISES PROVIDING SPOT MATERIAL IN STRIP FORM HAVING ONE SURFACE
FORMED OF AN EXPOSED CONTINUOUS COATING OF WATER RESISTANT ADHESIVE
WHICH IS NORMALLY HARD AT ROOM TEMPERATURE BUT BECOMES TACKY UPON THE
APPLICATION OF HEAT AND HAVING ANOTHER SURFACE TO BE EXPOSED TO THE
CONTENTS OF A CAPPED CONTAINER, CUTTING FROM SAID STRIP A FACING SPOT
HAVING ONE SURFACE COMPLETELY COATED WITH SAID ADHESIVE WITH A CAP
DISPOSED BENEATH THE PORTION OF THE STRIP FROM WHICH THE SPOT IS CUT,
WHEREBY THE CUTTING OPERATION POSITIONS THE SPOT UPON THE CUSHION
MATERIAL WITH THE COATING BETWEEN THE SPOT AND THE CUSHION MATERIAL,
AND UPON ASSEMBLY APPLYING SIMULTANEOUSLY TO THE SPOT PRESSURE AND
SUFFICIENT HEAT TO RENDER THE ADHESIVE TACKY, THEREBY CAUSING THE SPOT
TO ADHERE TO THE CUSHION MATERIAL, AND THEREAFTER PERMITTING THE
ADHESIVE TO COOL AND HARDEN." 

CLAIM 3 REPEATS THE WORDS OF CLAIM 1 AND ADDS THESE WORDS, "WHILE
SUBJECTING THE ASSEMBLED UNIT TO PRESSURE." 

FN3  THESE CLAIMS ARE FULLY INDICATED IMMEDIATELY BELOW.  THE
INSERTIONS IN BRACKETS GIVE EQUIVALENT TERMS USED IN THE CLAIMS OF THE
REISSUE PATENT. 

CLAIM 1.  "THE METHOD OF ASSEMBLING LININGS (CENTER SPOTS) FOR
SEALING PADS (CUSHION MATERIAL) IN RECEPTACLE CLOSURE CAPS, CONSISTING
IN PROVIDING CAPS WITH SEALING PADS THEREIN AND A WEB OF LINING
MATERIAL ARRANGED WITH AN ADHESIVE SURFACE NON-VISCOUS AT NORMAL
TEMPERATURE, HEATING THE PADS IN THE CAPS, SEVERING LININGS FROM THE
WEB OF LINING MATERIAL AND ASSEMBLING THE LININGS AS THEY ARE SEVERED
FROM THE WEB IN THE CAPS WITH THE ADHESIVE SURFACE IN CONTACT WITH THE
HEATED PADS TO RENDER THE ADHESIVE VISCOUS AND EFFECT ADHESION OF THE
LININGS TO THE PADS." 

CLAIM 2 REPEATS THE WORDS OF CLAIM 1 AND ADDS THESE WORDS, "AND THEN
PLACING THE LININGS IN THE CAPS UNDER HEAT AND PRESSURE TO EFFECT AN
INTIMATE ADHESION BETWEEN THE LININGS AND PADS." 

CLAIM 3 REPEATS THE WORDS OF CLAIM 1 AND THE ADDITION OF CLAIM 2 AND
ADDS THESE WORDS, "AND THEN PLACING THE LININGS ASSEMBLED IN THE CAPS
UNDER PRESSURE DURING THE COOLING THEREOF." 

FN4  R.S. SEC. 4886, AS AMENDED MARCH 3, 1897(29 STAT. 692):  "ANY
PERSON WHO HAS INVENTED OR DISCOVERED ANY NEW AND USEFUL ART, MACHINE,
MANUFACTURE, OR COMPOSITION OF MATTER, OR ANY NEW AND USEFUL
IMPROVEMENTS THEREOF, NOT KNOWN OR USED BY OTHERS IN THIS COUNTRY,
BEFORE HIS INVENTION OR DISCOVERY THEREOF, AND NOT PATENTED OR
DESCRIBED IN ANY PRINTED PUBLICATION IN THIS OR ANY FOREIGN COUNTRY,
BEFORE HIS INVENTION OR DISCOVERY THEREOF, OR MORE THAN TWO YEARS PRIOR
TO HIS APPLICATION, AND NOT IN PUBLIC USE OR ON SALE IN THIS COUNTRY
FOR MORE THAN TWO YEARS PRIOR TO HIS APPLICATION, UNLESS THE SAME IS
PROVED TO HAVE BEEN ABANDONED, MAY, UPON PAYMENT OF THE FEES REQUIRED
BY LAW, AND OTHER DUE PROCEEDING HAD, OBTAIN A PATENT THEREFOR."  (THE
STATUTE HAS SINCE BEEN AMENDED, BUT NOT TO CHANGE THE TWO-YEAR PERIOD. 
SEE 35 U.S.C. SEC. 31.) 

CF. R.S. SEC. 4887(35 U.S.C. SEC. 32), RELATING TO INVENTIONS
PATENTED ABROAD; R.S. SEC. 4897(35 U.S.C. SEC. 38), RELATING TO RENEWAL
APPLICATION AFTER FAILURE TO COMPLY WITH REQUIREMENT AS TO PAYMENT OF
FINAL FEE; R.S. SEC. 4920(35 U.S.C. SEC. 69), RELATING TO DEFENSE OF
PRIOR INVENTION. 

FN5  R.S. SEC. 4894, AS AMENDED MARCH 3, 1897(29 STAT. 693).  "ALL
APPLICATIONS FOR PATENTS SHALL BE COMPLETED AND PREPARED FOR
EXAMINATION WITHIN ONE YEAR AFTER THE FILING OF THE APPLICATION, AND IN
DEFAULT THEREOF, OR UPON FAILURE OF THE APPLICANT TO PROSECUTE THE SAME
WITHIN ONE YEAR AFTER ANY ACTION THEREIN, OF WHICH NOTICE SHALL HAVE
BEEN GIVEN TO THE APPLICANT, THEY SHALL BE REGARDED AS ABANDONED BY THE
PARTIES THERETO, UNLESS IT BE SHOWN TO THE SATISFACTION OF THE
COMMISSIONER OF PATENTS THAT SUCH DELAY WAS UNAVOIDABLE."  (THE STATUTE
HAS SINCE BEEN AMENDED TO REDUCE THE PERIOD TO SIX MONTHS.  SEE 35
U.S.C. SEC. 37.) 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

THIS COURT DECLARED IN WEBSTER CO. V. SPLITDORF CO., 264 U.S. 463,
466, 471: 

"IN SUITS TO ENFORCE REISSUE PATENTS, THE SETTLED RULE OF THIS COURT
IS THAT A DELAY FOR TWO YEARS OR MORE WILL 'INVALIDATE THE REISSUE,
UNLESS THE DELAY IS ACCOUNTED FOR AND EXCUSED BY SPECIAL CIRCUMSTANCES,
WHICH SHOW IT TO HAVE BEEN NOT UNREASONABLE.'  ... 

"OUR CONCLUSION, THEREFORE, IS THAT IN CASES INVOLVING LACHES,
EQUITABLE ESTOPPEL OR INTERVENING PRIVATE OR PUBLIC RIGHTS, THE TWO
YEAR LIMIT PRIMA FACIE APPLIES TO DIVISIONAL APPLICATIONS AND CAN ONLY
BE AVOIDED BY PROOF OF SPECIAL CIRCUMSTANCES JUSTIFYING A LONGER
DELAY.  IN OTHER WORDS, WE FOLLOW IN THAT RESPECT THE ANALOGY FURNISHED
BY THE PATENT REISSUE CASES."  THE RULE ANNOUNCED IN THE SPLITDORF CASE
WAS BASED UPON A LONG LINE OF DECISIONS OF THIS COURT EXTENDING FROM
MILLER V. BRASS CO., 104 U.S. 350, DECIDED IN 1882. 

THE MAJORITY OPINION ABANDONS THE PRINCIPLE OF THE SPLITDORF CASE
THAT EITHER LACHES OR EQUITABLE ESTOPPEL OR INTERVENING PRIVATE RIGHTS
OR INTERVENING PUBLIC RIGHTS - IN THE ABSENCE OF PROVED SPECIAL
CIRCUMSTANCES - BARS A DIVISIONAL PATENT AFTER A LAPSE OF AN
UNREASONABLE LENGTH OF TIME - PRIMA FACIE TWO YEARS.  IT IS NOW HELD
THAT NEITHER LACHES NOR EQUITABLE ESTOPPEL MAY ALONE INVALIDATE A
PATENT WITHOUT PROOF OF "INTERVENING ADVERSE RIGHTS."  THE AUTHORITIES
RELIED ON IN THE SPLITDORF CASE EMPHASIZED THE RIGHT OF THE PUBLIC -
APART FROM PROVABLE ADVERSE USE BY INDIVIDUALS - TO REQUIRE AN
APPLICANT TO PURSUE HIS RIGHT TO A PATENT DILIGENTLY AND WITHOUT
ENLARGEMENT OF CLAIMS AFTER FILING AN ORIGINAL APPLICATION.  FN1  "ANY
PRACTICE BY THE INVENTOR AND APPLICANT FOR A PATENT THROUGH WHICH HE
DELIBERATELY AND WITHOUT EXCUSE POSTPONES BEYOND THE DATE OF THE ACTUAL
INVENTION, THE BEGINNING OF THE TERM OF MONOPOLY, AND THUS PUTS OFF THE
FREE PUBLIC ENJOYMENT OF THE USEFUL INVENTION, IS AN EVASION OF THE
STATUTE AND DEFEATS ITS BENEVOLENT AIM."  FN2 

THERE IS A FURTHER DEPARTURE FROM THE SPLITDORF CASE IN THE HOLDING
THAT TWO YEARS DELAY IN FILING A DIVISIONAL APPLICATION AFTER AN
INTERVENING PATENT DOES NOT - IN THE ABSENCE OF ACTUAL ABANDONMENT OF
THE INVENTION - BAR THE RIGHT TO A "DIVISIONAL" PATENT.  ABANDONMENT IS
BUT ONE OF MANY GROUNDS FOR INVALIDATING A PATENT.  EQUITABLE ESTOPPEL,
INTERVENING PUBLIC RIGHTS, OR UNJUSTIFIED AND UNEXPLAINED LACHES WERE
CONSIDERED IN THE SPLITDORF CASE AND CASES THERE RELIED ON TO BE
INDIVIDUALLY SUFFICIENT BARS, WITHOUT PROOF OF ABANDONMENT. 
UNJUSTIFIED DELAY AND ABANDONMENT ARE SEPARATE DEFENSES.  IF PROOF OF
ABANDONMENT IS TO BE A PREREQUISITE, LACHES AS A SEPARATE DEFENSE IS
DESTROYED, ALTHOUGH IT HAS BEEN RECOGNIZED FOR MORE THAN FIFTY YEARS. 
UNREASONABLE DELAY WHICH SERVES TO POSTPONE THE BEGINNING OF THE
SEVENTEEN YEAR MONOPOLY LIMITATION, NOT ONLY IS POSSIBLE WITHOUT
ABANDONMENT OF THE INVENTION, BUT IS HIGHLY PROBABLE.  WITH THE
DESTRUCTION OF THE DEFENSE OF LACHES THE PUBLIC LOSES THE BENEFIT OF
THE PRINCIPLE THAT "AN INVENTOR CANNOT WITHOUT CAUSE HOLD HIS
APPLICATION PENDING DURING A LONG PERIOD OF YEARS, LEAVING THE PUBLIC
UNCERTAIN, WHETHER HE INTENDS EVER TO PROSECUTE IT, AND KEEPING THE
FIELD OF HIS INVENTION CLOSED AGAINST OTHER INVENTIONS."  FN3 

THE COURT OF APPEALS FOLLOWING THIS SETTLED PRINCIPLE - NOW ABANDONED
- SAID:  FN4  "WE THINK THEY (CLAIMS IN THE PATENT) ARE INVALID FOR
LACHES IN FILING THE APPLICATION FOR THEM.  (CITING WEBSTER CO. V.
SPLITDORF CO.).  ...  THESE CIRCUMSTANCES (FACTS OF THIS CASE) INVITE
OPERATION OF THE TWO-YEAR LIMITATION DESIGNED TO PROTECT THE PUBLIC
AGAINST OBTAINING IN EFFECT AN EXTENSION OF A PATENTEE'S MONOPOLY BY
APATHY AND UNEXCUSED DELAY IN BRINGING FORWARD BY DIVISIONAL OR REISSUE
APPLICATIONS CLAIMS BROADER THAN THOSE ORIGINALLY SOUGHT." 

WHILE "DIVISIONAL" APPLICATIONS HAVE NEVER BEEN EXPRESSLY AUTHORIZED
BY STATUTE THE COURTS HAVE LONG RECOGNIZED THEIR USE AS A PART OF
PATENT OFFICE PROCEDURE.  PETITIONER'S PATENT WHICH THE COURT OF
APPEALS FOUND BARRED BY LACHES WAS GRANTED ON A "DIVISIONAL"
APPLICATION.  PATENT OFFICE REGULATIONS WHICH HAVE LIMITED EACH
APPLICATION FOR A PATENT TO A SINGLE INVENTION AND HAVE REQUIRED A
"DIVISION" OF AN APPLICATION CONTAINING CLAIMS FOR TWO SEPARATE AND
DISTINCT INVENTIONS, APPARENTLY GAVE RISE TO THE PROCEDURAL DEVICE OF
"DIVISIONAL APPLICATIONS."  THE COURT OF APPEALS OF THE DISTRICT OF
COLUMBIA ACTING IN A SPECIAL APPELLATE CAPACITY  FN5  AND THE PATENT
OFFICE, HAVE TREATED A "DIVISIONAL," PROPERLY USED, IN SOME RESPECTS,
AS A SUBSTITUTE FOR AN AMENDMENT.  IN ACCORDANCE WITH THIS CONCEPTION
"DIVISIONALS" HAVE BEEN FOR CERTAIN PURPOSES, TREATED AS
"CONTINUATIONS" OF ORIGINAL APPLICATIONS AND GIVEN THE PRIORITY OF
ORIGINAL APPLICATIONS.  THE LOGICAL CONCLUSION WAS REACHED THAT AFTER
AN ORIGINAL APPLICATION MERGED IN A PATENT, A "DIVISIONAL" APPLICATION
COULD NOT BE ATTACHED TO, OR CONSIDERED AS A "CONTINUATION" OF IT,
BECAUSE "THERE WAS NOTHING TO BE CONTINUED."  FN6  AFTER A PATENT IS
GRANTED IT PASSES "BEYOND THE CONTROL AND JURISDICTION" OF THE PATENT
OFFICE; THE PROCEEDINGS ARE CLOSED AND THE APPLICATION CAN NEITHER BE
AMENDED NOR SERVE AS THE BASIS FOR A NEW "DIVISIONAL" OR "CONTINUING"
APPLICATION.  FN7 

HERE AN APPLICATION FOR A PROCESS PATENT WAS FILED IN 1927. 
NOVEMBER, 1930, IN RESPONSE TO PATENT OFFICE REQUIREMENT, A
"DIVISIONAL" APPLICATION WAS FILED FOR A PRODUCT PATENT.  JANUARY,
1931, A PROCESS PATENT WAS GRANTED ON THE ORIGINAL APPLICATION.  MORE
THAN TWO YEARS AFTER THE ORIGINAL APPLICATION HAD MERGED INTO A PROCESS
PATENT ANOTHER APPLICATION DESIGNATED AS A "DIVISIONAL" WAS FILED
(APRIL 4, 1933), FOR A SECOND PROCESS PATENT - HERE INVOLVED.  THE
COURT OF APPEALS FOUND THIS DELAY OF SIX YEARS TO BE WITHOUT
JUSTIFICATION OR EXCUSE.  DISREGARDING THE PREVIOUSLY RECOGNIZED
REQUIREMENT THAT JUSTIFICATION AND EXCUSE MUST BE PROVEN FOR SUCH
DELAY, THE MAJORITY NOW HOLD THAT AN APPLICANT CAN, FOR SIX YEARS,
DELAY HIS CLAIM FOR AN ALLEGED DISCOVERY WITHOUT EXCUSE, JUSTIFICATION,
OR REASON FOR THE DELAY.  THIS IS PERMITTED DESPITE THE FACT THAT
UNCLAIMED DISCLOSURE OF THE ALLEGED INVENTION HAD BEEN MADE IN THE 1927
PROCESS APPLICATION AND IN THE 1930 PRODUCT APPLICATION. 

CONGRESS - GIVEN THE POWER BY THE CONSTITUTION - HAS FIXED THE
STATUTORY LIMIT OF A PATENT MONOPOLY AT SEVENTEEN YEARS.  FN8  BY THE
PROCEDURAL DEVICE OF A "DIVISIONAL" APPLICATION, DESIGNED TO PROTECT
RIGHTS GRANTED AN INVENTOR BY STATUTE, PETITIONER HAS CARVED FOR ITSELF
PRIORITY MONOPOLY RIGHTS, BEGINNING IN 1927 AND LASTING UNTIL 1951 -
TWENTY-FOUR YEARS, OR SEVEN YEARS MORE THAN CONGRESS HAS AUTHORIZED. 

IN THE REMEDY OF REISSUE PROVIDED BY STATUTE FOR APPLICANTS WHOSE
CLAIMS FAIL TO PROTECT THEIR ENTIRE DISCOVERIES,  FN9  CONGRESS HAS
BEEN ALERT TO PROTECT THE PUBLIC FROM SUCH AN EXTENSION OF MONOPOLY.  A
REISSUE PATENT MUST BE BASED ON OATH THAT AN APPLICANT'S ORIGINAL
PATENT FAILED TO COVER ITS ACTUAL INVENTION AS A RESULT OF ACCIDENT,
INADVERTENCE OR MISTAKE, AND RUNS ONLY FOR THE UNEXPIRED PORTION OF A
SEVENTEEN YEAR PATENT GRANT.  THE USE OF "DIVISIONALS" OR
"CONTINUATIONS," NO LONGER SUBJECT TO THE DEFENSE OF LACHES OR
UNREASONABLE DELAY, WILL PERMIT AN APPLICANT TO OBTAIN, BY A
NONSTATUTORY PROCEDURAL DEVICE, MONOPOLY PRIVILEGES DENIED BY THE
REISSUE STATUTE. 

THE ESSENTIAL ADDITIONAL CLAIM IN PETITIONER'S 1934 "DIVISIONAL"
PATENT WAS ONLY MENTIONED IN THE 1927 ORIGINAL APPLICATION AND THE 1930
"DIVISIONAL" APPLICATION BY WAY OF CASUAL SUGGESTION AND INCIDENTAL
ILLUSTRATION.  FN10  EVEN THIS CASUAL SUGGESTION WAS STRICKEN FROM THE
1927 APPLICATION IN DECEMBER, 1930.  THESE SUGGESTIVE ILLUSTRATIONS DID
NOT CONSTITUTE PARTS OF THE INVENTIONS WHICH THE 1927 AND 1930
APPLICATIONS SOUGHT TO COVER OR SECURE.  FN11  THE SPECULATIVE
SUGGESTIONS - FROM SEPARATE APPLICATIONS FOR DIFFERENT INVENTIONS - ARE
PIECED TOGETHER AND HELD SUFFICIENT TO "CONTINUE" THE 1927 APPLICATION
(AFTER ITS MERGER IN A PATENT) AND THE 1930 APPLICATION, AS SUPPORT FOR
THE RETROACTIVE OPERATION OF A CLAIM MADE FOR THE FIRST TIME IN 1933. 
AS A RESULT OF THE DESTRUCTION OF THE DEFENSE OF LACHES IN APPLYING FOR
"DIVISIONAL" APPLICATIONS, THOSE FAMILIAR WITH A GIVEN FIELD OF
INDUSTRY MAY NOW INSERT SPECULATIVE CONJECTURES AS DISCLOSURES IN
VARIOUS APPLICATIONS AND PERMIT THEM TO LIE DORMANT UNTIL A COMPETITOR
REDUCES SPECULATION TO PRACTICALITY.  THEN, BY THE DEVICE OF A
"DIVISIONAL," OR IF NEED BE, AS HERE, BY "DIVISIONAL" ON "DIVISIONAL,"
SUCH A COMPETITOR CAN BE PURSUED WITH INFRINGEMENT SUITS AND HARASSED
INTO SURRENDERING HIS BUSINESS TO AN INGENIOUSLY DILATORY APPLICANT. 
FN12  THUS, SWEEPING, INDEFINITE AND UNCLAIMED DISCLOSURES, AND ADROIT
USE OF "DIVISIONALS" - WHICH LACHES AND UNREASONABLE DELAY ARE NO
LONGER SUFFICIENT TO BAR - ARE PERMITTED TO EXTEND A PATENT'S STATUTORY
LIFE AND TO INCREASE A PATENTEE'S REWARD BEYOND THAT GRANTED BY
CONGRESS. 

"'THE PATENT LAWS ARE FOUNDED IN A LARGE PUBLIC POLICY TO PROMOTE THE
PROGRESS OF SCIENCE AND THE USEFUL ARTS.  THE PUBLIC, THEREFORE, IS A
MOST MATERIAL PARTY TO, AND SHOULD BE DULY CONSIDERED IN, EVERY
APPLICATION FOR A PATENT.  ...  BUT THE ARTS AND SCIENCES WILL
CERTAINLY NOT BE PROMOTED BY GIVING ENCOURAGEMENT TO INVENTORS TO
WITHHOLD AND CONCEAL THEIR INVENTIONS FOR AN INDEFINITE TIME, OR TO A
TIME WHEN THEY MAY USE AND APPLY THEIR INVENTIONS TO THEIR OWN
EXCLUSIVE ADVANTAGE, IRRESPECTIVE OF THE PUBLIC BENEFIT, AND CERTAINLY
NOT IF THE INVENTOR IS ALLOWED TO CONCEAL HIS INVENTION TO BE BROUGHT
FORWARD IN SOME AFTER TIME TO THWART AND DEFEAT A MORE DILIGENT AND
ACTIVE INVENTOR, WHO HAS PLACED THE BENEFIT OF HIS INVENTION WITHIN THE
REACH AND KNOWLEDGE OF THE PUBLIC.'"  FN13    FN1  SEE, MILLER V. BRASS
CO., 104 U.S. 350, 355; JAMES V. CAMPBELL, 104 U.S. 356, 371; MAHN V.
HARWOOD, 112 U.S. 354, 360; IVES V. SARGENT, 119 U.S. 652, 662; TOPLIFF
V. TOPLIFF, 145 U.S. 156, 170, 171; WOLLENSAK V. SARGENT & CO., 151
U.S. 221, 228. 

FN2  WOODBRIDGE V. UNITED STATES, 263 U.S. 50, 56. 

FN3  PLANING-MACHINE CO. V. KEITH, 101 U.S. 479, 485. 

FN4  86 F.(2D) 698, 702. 

FN5  FRASCH V. MOORE, 211 U.S. 1, 9, 10; BUTTERWORTH V. HOE, 112 U.S.
50, 60. 

FN6  IN RE SPITTELER, 31 APP. D.C. 271, 274, 275.  "  ...  'IT IS
WELL ESTABLISHED THAT FOR ONE APPLICATION TO BE A DIVISION, WITHIN THE
MEANING OF THE LAW, OF ANOTHER, THE TWO MUST AT SOME TIME BE CO
PENDING,' ...  SARFERT V. MEYER, 1902 C.D. 30; IN RE SPITTELER, 31 APP.
D.C. 271, 1908 C.D. 374; ...  WAINWRIGHT V. PARKER, 32 APP. D.C. 431,
1909 C.D. 379.  ... 

"  ...  AN APPLICATION CANNOT BE CONSIDERED AS A CONTINUANCE OF A
PATENT GRANTED PRIOR TO THE FILING THEREOF, SINCE AFTER THE APPLICATION
HAS EVENTUATED INTO A PATENT THERE IS NOTHING LEFT PENDING BEFORE THE
PATENT OFFICE UPON WHICH IT COULD ACT OR TO WHICH THE LATER APPLICATION
COULD ATTACH.  IN RE SPITTELER, 31 APP. D.C. 271, 134 O.G. 1301;
WAINWRIGHT V. PARKER, 32 APP. D.C. 431, 142 O.G. 1115, 1909 C.D. 379." 
FESSENDEN V. WILSON, 48 F.(2D) 422, 424. 

FN7  SEE, MCCORMICK MACHINE CO. V. AULTMAN, 169 U.S. 606, 608, 609. 

FN8  35 U.S.C., C. 2, SEC. 40. 

FN9  35 U.S.C., C. 2, SEC. 64. 

FN10  THE ESSENTIAL ADDITIONAL CLAIM OF THE 1934 DIVISIONAL PROCESS
PATENT WAS FOR "PREHEATING" CORK USED IN MAKING BOTTLE CAPS.  THE
INCIDENTAL REFERENCE TO PREHEATING IN THE 1927 APPLICATION WAS AS
FOLLOWS: 

"IT MAY BE DESIRABLE TO SECURE THE METAL FOIL SPOT IN POSITION, PRIOR
TO THE HEAT AND PRESSURE STEPS, SUFFICIENTLY TO PREVENT DISLODGMENT OF
THE SPOT DURING ANY INTERVAL BETWEEN ASSEMBLING AND FINAL STICKING. 
THIS MAY BE ACCOMPLISHED, FOR EXAMPLE, BY PREHEATING THE ASSEMBLED
CROWN, TO SOFTEN THE COATING AS SOON AS THE METAL FOIL SPOT IS
DEPOSITED.  OR THE COATING MAY BE SOFTENED BY MOISTENING SLIGHTLY WITH
A SOLVENT, SUCH AS BENZOL.  IN EITHER CASE THE COATING BECOMES TACKY
ENOUGH TO HOLD THE METAL FOIL FROM GETTING OUT OF POSITION DURING
ORDINARY PASSAGE THROUGH ASSEMBLING APPARATUS." 

THE 1930 DIVISIONAL APPLICATION FOR A PRODUCT PATENT MERELY SUGGESTED
THAT "IT MAY BE DESIRABLE TO SECURE THE SPOT IN POSITION, PRIOR TO THE
HEAT AND PRESSURE STEPS, SUFFICIENTLY TO PREVENT DISLODGEMENT OF THE
SPOT DURING ANY INTERVAL BETWEEN ASSEMBLING AND FINAL STICKING.  THIS
MAY BE ACCOMPLISHED, FOR EXAMPLE, BY PREHEATING THE ASSEMBLED CROWN, TO
SOFTEN THE COATING, AS SOON AS THE METAL FOIL IS DEPOSITED." 

FN11  CF., CORBIN CABINET LOCK CO. V. EAGLE LOCK CO., 150 U.S. 38,
42, 43. 

FN12  CF., ATLANTIC WORKS V. BRADY, 107 U.S. 192, 200. 

FN13  WOODBRIDGE V. UNITED STATES, SUPRA, 61. 
..END :























GENERAL PICTURES CO. V. ELECTRIC CO., 304 U.S. 175 


NO. 357.  ARGUED DECEMBER 13, 14, 1937.  - DECIDED MAY 2, 1938.  - 91
F.2D 922, AFFIRMED. 


1.  REVIEW BY CERTIORARI IS CONFINED TO QUESTIONS SPECIFICALLY BROUGHT
FORWARD BY THE PETITION FOR THE WRIT.  P. 177. 

THE SUPPORTING BRIEF IS NOT A PART OF THE PETITION FOR THIS PURPOSE;
SPECIFICATIONS OF ERROR IN THAT BRIEF DO NOT EXPAND OR ADD TO THE
QUESTIONS STATED IN THE PETITION; THEY SERVE MERELY TO IDENTIFY AND
CHALLENGE RULINGS UPON WHICH IS GROUNDED ULTIMATE DECISION OF THE
MATTER INVOLVED.  P. 178. 

2.  A WRIT OF CERTIORARI WILL NOT BE GRANTED IN A PATENT CASE TO
BRING UP QUESTIONS OF ACQUIESCENCE AND ESTOPPEL DEPENDENT ON QUESTIONS
OF FACT, AS TO WHICH THERE WERE CONCURRENT FINDINGS BELOW; NOR TO
REVIEW QUESTIONS OF ANTICIPATION AND INVENTION AS TO WHICH THERE IS NO
CONFLICT BETWEEN DECISIONS OF THE CIRCUIT COURTS OF APPEALS.  P. 178. 

3.  THE OWNER OF PATENTS IN VACUUM TUBE AMPLIFIERS USED THE
INVENTIONS COMMERCIALLY, THROUGH ITS EXCLUSIVELY LICENSED SUBSIDIARIES,
IN THE BUSINESS OF MAKING TALKING-PICTURE EQUIPMENT EMBODYING THE
INVENTIONS AND SUPPLYING THE EQUIPMENT TO THEATERS.  IT ALSO GRANTED
NON-EXCLUSIVE LICENSES TO OTHERS EXPRESSLY LIMITED TO THE MAKING AND
SELLING OF THE PATENTED AMPLIFIERS FOR PRIVATE USES, NAMELY, FOR RADIO
BROADCAST RECEPTION, RADIO AMATEUR RECEPTION, AND RADIO EXPERIMENTAL
RECEPTION.  ONE OF THE NON-EXCLUSIVE LICENSEES MADE THE PATENTED
AMPLIFIERS AND SOLD THEM TO A TALKING PICTURES CORPORATION, KNOWING
THAT THE PURCHASER WOULD INCLUDE THEM IN TALKING-PICTURE EQUIPMENT TO
BE LEASED TO THEATERS.  BOTH PARTIES KNEW THE RESTRICTIONS OF THE
VENDOR'S LICENSE AND INTENTIONALLY DISREGARDED NOTICES STATING THOSE
RESTRICTIONS, WHICH WERE AFFIXED TO THE ARTICLES.  HELD, THAT THE
RESTRICTIONS OF THE VENDOR'S LICENSE WERE VALID UNDER THE PATENT LAW;
THAT THE PURCHASER WAS NOT "A PURCHASER IN THE ORDINARY CHANNELS OF
TRADE"; THAT THE SALES WERE NOT SALES UNDER THE PATENT, BUT WERE
WITHOUT AUTHORITY FROM THE PATENT-OWNER; AND THAT BOTH VENDOR AND
PURCHASER WERE GUILTY OF INFRINGEMENT.  P. 179. 

THE EFFECT OF THE LICENSE NOTICE IS NOT CONSIDERED. 

4.  THE CONCURRENT FINDINGS OF THE TWO COURTS BELOW, AS TO TWO OF THE
PATENTS INVOLVED IN THIS LITIGATION, THAT THERE WAS NO PUBLIC USE OF
THE INVENTIONS PRIOR TO THE DATES OF DIVISIONAL APPLICATIONS ON WHICH
THE PATENTS ISSUED, ARE SUPPORTED BY EVIDENCE AND ACCEPTED BY THIS
COURT.  P. 182. 

5.  INVENTIONS, DISCLOSED BUT NOT CLAIMED IN APPLICATIONS FOR PATENT,
WERE SUBSEQUENTLY CLAIMED AND PATENTED THROUGH CONTINUATION
APPLICATIONS VOLUNTARILY FILED BY THE APPLICANT.  THE PATENTEE'S USE,
WHICH WAS THE ONLY "PUBLIC USE," WAS FOR LESS THAN TWO YEARS PRIOR TO
THE ORIGINAL APPLICATIONS BUT FOR MORE THAN TWO YEARS PRIOR TO THE
CONTINUATION APPLICATIONS.  HELD THAT THE CONTINUATION APPLICATIONS
WERE IN TIME, NO ADVERSE RIGHTS HAVING INTERVENED MORE THAN TWO YEARS
BEFORE THEY WERE FILED, AND THE EFFECTIVE DATES OF THE CLAIMS THEREIN
WERE THE DATES OF THE ORIGINAL APPLICATIONS.  R.S. SEC. 4886.  CROWN
CORK & SEAL CO. V. GUTMANN CO., ANTE, P. 159.  P. 182. 

GENERAL TALKING PICTURES CORP. V. WESTERN ELECTRIC CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 674, TO REVIEW THE AFFIRMANCE OF DECREES
SUSTAINING PATENTS, ENJOINING INFRINGEMENT, AND ORDERING ACCOUNTINGS,
IN THREE SUITS THAT WERE HEARD TOGETHER.  ON MAY 31, A REHEARING WAS
ORDERED UPON THE FIRST TWO OF THE QUESTIONS STATED ON P. 177 OF THIS
OPINION. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THREE SUITS WERE BROUGHT BY RESPONDENTS AGAINST PETITIONER IN THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK TO RESTRAIN
INFRINGEMENTS, BASED ON DIFFERENT PATENTS FOR INVENTIONS IN VACUUM TUBE
AMPLIFIERS WHICH HAVE BEEN USED IN WIRE AND RADIO TELEPHONY, TALKING
MOTION PICTURES, AND OTHER FIELDS.  IN ALL THERE WERE IN SUIT SEVEN
PATENTS.  THE CASES WERE TRIED TOGETHER AND ARE TREATED AS ONE.  THE
LOWER COURTS HELD ONE OF THE PATENTS INVALID, AND THAT RULING IS NOT
CHALLENGED HERE.  THEY CONCURRED IN HOLDING SIX OF THE PATENTS VALID
AND INFRINGED BY PETITIONER.  16 F.SUPP.  293; 91 F.(2D) 922.  THIS
COURT GRANTED A WRIT OF CERTIORARI. 

UNDER THE CAPTION "QUESTIONS PRESENTED" THE PETITION FOR WRIT OF
CERTIORARI SUBMITS THE FOLLOWING: 

"1.  CAN THE OWNER OF A PATENT, BY MEANS THEREOF, RESTRICT THE USE
MADE OF A DEVICE MANUFACTURED UNDER THE PATENT, AFTER THE DEVICE HAS
PASSED INTO THE HANDS OF A PURCHASER IN THE ORDINARY CHANNELS OF TRADE,
AND FULL CONSIDERATION PAID THEREFOR? 

"2.  CAN A PATENT OWNER, MERELY BY A 'LICENSE NOTICE' ATTACHED TO A
DEVICE MADE UNDER THE PATENT, AND SOLD IN THE ORDINARY CHANNELS OF
TRADE, PLACE AN ENFORCEABLE RESTRICTION ON THE PURCHASER THEREOF AS TO
THE USE TO WHICH THE PURCHASER MAY PUT THE DEVICE? 

"3.  CAN AN INVENTOR WHO HAS FILED AN APPLICATION FOR PATENT, SHOWING
AND DESCRIBING BUT NOT CLAIMING CERTAIN INVENTIONS, OBTAIN A VALID
PATENT FOR SAID INVENTIONS BY VOLUNTARILY FILING A 'DIVISIONAL' OR
'CONTINUATION' APPLICATION FOR SAID UNCLAIMED INVENTIONS MORE THAN TWO
YEARS SUBSEQUENT TO PUBLIC USE OF THE SAID UNCLAIMED INVENTIONS BY HIM
OR HIS ASSIGNEE OR LICENSEE?" 

THE BRIEF SUPPORTING THE PETITION CONTAINS SPECIFICATIONS OF ERROR
RELATING TO DECISION OF TWO OTHER QUESTIONS.  ONE IS WHETHER, BY
ACCEPTANCE AND RETENTION OF ROYALTIES PAID BY THE LICENSED
MANUFACTURER, RESPONDENTS ACQUIESCED IN THE INFRINGEMENT AND ARE
ESTOPPED FROM MAINTAINING THE SUIT.  THE OTHER IS WHETHER THE PATENTS
UPHELD ARE INVALID BECAUSE OF ANTICIPATION BY, OR WANT OF INVENTION
OVER, THE PRIOR PATENTED ART. THAT BRIEF IS CONFINED TO THE THREE
QUESTIONS DEFINITELY STATED IN THE PETITION.  BUT PETITIONER'S BRIEF ON
THE MERITS EXTENDS TO THE ADDITIONAL QUESTIONS REFLECTED BY THE
SPECIFICATION OF ERRORS. 

1.  OUR CONSIDERATION OF THE CASE WILL BE LIMITED TO THE QUESTIONS
SPECIFICALLY BROUGHT FORWARD BY THE PETITION.  RULE 38, PARAGRAPH 2,
CONTAINS THE FOLLOWING.  "THE PETITION SHALL CONTAIN ONLY A SUMMARY AND
SHORT STATEMENT OF THE MATTER INVOLVED AND THE REASONS RELIED ON FOR
THE ALLOWANCE OF THE WRIT.  A SUPPORTING BRIEF MAY BE INCLUDED IN THE
PETITION, BUT, WHETHER SO INCLUDED OR PRESENTED SEPARATELY, IT MUST BE
DIRECT, CONCISE AND IN CONFORMITY WITH RULES 26 AND 27.  A FAILURE TO
COMPLY WITH THESE REQUIREMENTS WILL BE A SUFFICIENT REASON FOR DENYING
THE PETITION.  ...  "  EVIDENTLY PETITIONER, BY THE "QUESTIONS
PRESENTED" INTENDED TO STATE THE ISSUES IT DEEMED TO ARISE ON ITS
"STATEMENT OF THE MATTER INVOLVED," FOR NEITHER THE PETITION NOR
SUPPORTING BRIEF PURPORT TO APPLY FOR REVIEW OF ANY OTHER QUESTION. 
WHETHER INCLUDED IN THE PETITION, OR SEPARATELY PRESENTED, THE
SUPPORTING BRIEF IS NOT A PART OF THE PETITION, AT LEAST FOR THE
PURPOSE OF STATING THE QUESTIONS ON WHICH REVIEW IS SOUGHT.  THE
SPECIFICATIONS OF ERROR IN THAT BRIEF DO NOT EXPAND OR ADD TO THE
QUESTIONS STATED IN THE PETITION; THEY SERVE MERELY TO IDENTIFY AND
CHALLENGE RULINGS UPON WHICH IS GROUNDED ULTIMATE DECISION OF THE
MATTER INVOLVED. 

THERE IS NOTHING IN THE LOWER COURTS' DECISION ON EITHER OF THE ADDED
QUESTIONS TO WARRANT REVIEW HERE.  WHETHER RESPONDENTS ACQUIESCED IN
THE INFRINGEMENT AND ARE ESTOPPED DEPENDS UPON THE FACTS.  GRANTING OF
THE WRIT WOULD NOT BE WARRANTED MERELY TO REVIEW THE EVIDENCE OR
INFERENCES DRAWN FROM IT.  SOUTHERN POWER CO. V. N.C. PUBLIC SERVICE
CO., 263 U.S. 508.  UNITED STATES V. JOHNSTON, 268 U.S. 220, 227. 
MOREOVER, THE DECISION ON THAT POINT RESTS ON CONCURRENT FINDINGS. 
THEY ARE NOT TO BE DISTURBED UNLESS PLAINLY WITHOUT SUPPORT.  UNITED
STATES V. CHEMICAL FOUNDATION, 272 U.S. 1, 14.  UNITED STATES V.
MCGOWAN, 290 U.S. 592.  ALABAMA POWER CO. V. ICKES, 302 U.S. 464. 
THERE IS EVIDENCE TO SUPPORT THEM.  NOR WOULD THE WRIT BE GRANTED TO
REVIEW THE QUESTIONS OF ANTICIPATION AND INVENTION THAT PETITIONER
ARGUES, FOR AS TO THEM THERE IS NO CONFLICT BETWEEN DECISIONS OF
CIRCUIT COURTS OF APPEALS.  LAYNE & BOWLER CORP. V. WESTERN WELL WORKS,
261 U.S. 387, 393.  KELLER V. ADAMS-CAMPBELL CO., 264 U.S. 314, 319
320.  CF. STILZ V. UNITED STATES, 269 U.S. 144, 147-148.  THE WRIT DID
NOT ISSUE TO BRING UP EITHER OF THESE QUESTIONS.  CROWELL V. BENSON,
285 U.S. 22, 65. 

ONE HAVING OBTAINED A WRIT OF CERTIORARI TO REVIEW SPECIFIED
QUESTIONS IS NOT ENTITLED HERE TO OBTAIN DECISION ON ANY OTHER ISSUE. 
CROWN CORK & SEAL CO. V. GUTMANN CO., ANTE, P. 159.  PETITIONER IS NOT
HERE ENTITLED TO DECISION ON ANY QUESTION OTHER THAN THOSE FORMALLY
PRESENTED BY ITS PETITION FOR THE WRIT. 

2.  THE RESPONDENT AMERICAN TELEPHONE & TELEGRAPH CO. OWNS THE
PATENTS.  AMPLIFIERS HAVING THESE INVENTIONS ARE USED IN DIFFERENT
FIELDS.  ONE, KNOWN AS THE COMMERCIAL FIELD, INCLUDES TALKING PICTURE
EQUIPMENT FOR THEATERS.  ANOTHER, CALLED THE PRIVATE FIELD, EMBRACES
RADIO BROADCAST RECEPTION, RADIO AMATEUR RECEPTION, AND RADIO
EXPERIMENTAL RECEPTION.  THE OTHER RESPONDENTS ARE SUBSIDIARIES OF THE
TELEPHONE COMPANY AND EXCLUSIVE LICENSEES IN THE COMMERCIAL FIELD OF
RECORDING AND REPRODUCING SOUND; DURING THE TIME OF THE INFRINGEMENT
ALLEGED, THEY WERE ENGAGED IN MAKING AND SUPPLYING TO THEATERS TALKING
PICTURE EQUIPMENT INCLUDING AMPLIFIERS EMBODYING THE INVENTIONS COVERED
BY THE PATENTS IN SUIT.  THE PETITIONER ALSO FURNISHED TO THEATERS
TALKING PICTURE EQUIPMENT INCLUDING AMPLIFIERS WHICH EMBODY THE
INVENTION COVERED BY THE PATENTS IN SUIT.  RESPONDENTS' CHARGE IS THAT
BY SO DOING PETITIONER INFRINGES THEM. 

THE AMERICAN TRANSFORMER COMPANY WAS ONE OF A NUMBER OF MANUFACTURERS
HOLDING NON-EXCLUSIVE LICENSES LIMITED TO THE MANUFACTURE AND SALE OF
THE AMPLIFIERS FOR PRIVATE USE, AS DISTINGUISHED FROM COMMERCIAL USE. 
THESE LICENSES WERE GRANTED BY THE RADIO CORPORATION, ACTING FOR ITSELF
AND THE RESPONDENT TELEPHONE COMPANY, AND WERE ASSENTED TO BY THE
LATTER.  THE TRANSFORMER COMPANY'S LICENSE WAS EXPRESSLY CONFINED TO
THE RIGHT TO MANUFACTURE AND SELL THE PATENTED AMPLIFIERS FOR RADIO
AMATEUR RECEPTION, RADIO EXPERIMENAL RECEPTION, AND HOME BROADCAST
RECEPTION.  IT HAD NO RIGHT TO SELL THE AMPLIFIERS FOR USE IN THEATERS
AS A PART OF TALKING PICTURE EQUIPMENT. 

NEVERTHELESS, IT KNOWINGLY DID SELL THE AMPLIFIERS IN CONTROVERSY TO
PETITIONER FOR THAT USE.  PETITIONER ADMITS THAT THE TRANSFORMER
COMPANY KNEW THAT THE AMPLIFIERS IT SOLD TO PETITIONER WERE TO BE USED
IN THE MOTION PICTURE INDUSTRY.  THE PETITIONER, WHEN PURCHASING FROM
THE TRANSFORMER COMPANY FOR THAT USE, HAD ACTUAL KNOWLEDGE THAT THE
LATTER HAD NO LICENSE TO MAKE SUCH A SALE.  IN COMPLIANCE WITH A
REQUIREMENT OF THE LICENSE, THE TRANSFORMER COMPANY AFFIXED TO
AMPLIFIERS SOLD BY IT UNDER THE LICENSE A NOTICE STATING IN SUBSTANCE
THAT THE APPARATUS WAS LICENSED ONLY FOR RADIO AMATEUR, EXPERIMENTAL
AND BROADCAST RECEPTION UNDER THE PATENTS IN QUESTION.  TO THE
AMPLIFIERS SOLD TO PETITIONER OUTSIDE THE SCOPE OF THE LICENSE, IT ALSO
AFFIXED NOTICES IN THE FORM DESCRIBED, BUT THEY WERE INTENDED BY BOTH
PARTIES TO BE DISREGARDED. 

PETITIONER PUTS ITS FIRST QUESTION IN AFFIRMATIVE FORM:  "THE OWNER
OF A PATENT CANNOT, BY MEANS OF THE PATENT, RESTRICT THE USE MADE OF A
DEVICE MANUFACTURED UNDER THE PATENT AFTER THE DEVICE HAS PASSED INTO
THE HANDS OF A PURCHASER IN THE ORDINARY CHANNELS OF TRADE AND FULL
CONSIDERATION PAID THEREFOR."  BUT THAT PROPOSITION IGNORES CONTROLLING
FACTS.  THE PATENT OWNER DID NOT SELL TO PETITIONER THE AMPLIFIERS IN
QUESTION OR AUTHORIZE THE TRANSFORMER COMPANY TO SELL THEM OR ANY
AMPLIFIERS FOR USE IN THEATERS OR ANY OTHER COMMERCIAL USE.  THE SALES
MADE BY THE TRANSFORMER COMPANY TO PETITIONER WERE OUTSIDE THE SCOPE OF
ITS LICENSE AND NOT UNDER THE PATENT.  BOTH PARTIES KNEW THAT FACT AT
THE TIME OF THE TRANSACTIONS.  THERE IS NO GROUND FOR THE ASSUMPTION
THAT PETITIONER WAS "A PURCHASER IN THE ORDINARY CHANNELS OF TRADE." 

THE TRANSFORMER COMPANY WAS NOT AN ASSIGNEE; IT DID NOT OWN THE
PATENTS OR ANY INTEREST IN THEM; IT WAS A MERE LICENSEE UNDER A NON
EXCLUSIVE LICENSE, AMOUNTING TO NO MORE THAN "A MERE WAIVER OF THE
RIGHT TO SUE."  DE FOREST CO. V. UNITED STATES, 273 U.S. 236, 242. 
PERTINENT WORDS OF THE LICENSE ARE THESE:  "TO MANUFACTURE  ...  AND TO
SELL ONLY FOR RADIO AMATEUR RECEPTION, RADIO EXPERIMENTAL RECEPTION AND
RADIO BROADCAST RECEPTION.  ...  "  PATENT OWNERS MAY GRANT LICENSES
EXTENDING TO ALL USES OR LIMITED TO USE IN A DEFINED FIELD.  RUBBER
COMPANY V. GOODYEAR, 9 WALL.  788, 799-800.  GAMEWELL FIRE-ALARM
TELEGRAPH CO. V. BROOKLYN, 14 FED. 255.  DORSEY RAKE CO. V. BRADLEY
CO., FED. CAS. NO. 4,015, 7 FED. CAS. 946, 947.  ROBINSON ON PATENTS,
SECS. 808, 824.  UNQUESTIONABLY, THE OWNER OF A PATENT MAY GRANT
LICENSES TO MANUFACTURE, USE OR SELL UPON CONDITIONS NOT INCONSISTENT
WITH THE SCOPE OF THE MONOPOLY.  BEMENT V. NATIONAL HARROW CO., 186
U.S. 70, 93.  UNITED STATES V. GENERAL ELECTRIC CO., 272 U.S. 476,
489.  THERE IS HERE NO ATTEMPT ON THE PART OF THE PATENT OWNER TO
EXTEND THE SCOPE OF THE MONOPOLY BEYOND THAT CONTEMPLATED BY THE PATENT
STATUTE.  CF. CARBICE CORP. V. AMERICAN PATENTS CORP., 283 U.S. 27,
33.  LEITCH MFG. CO. V. BARBER CO., 302 U.S. 458.  THERE IS NO WARRANT
FOR TREATING THE SALES OF AMPLIFIERS TO PETITIONER AS IF MADE UNDER THE
PATENTS OR THE AUTHORITY OF THEIR OWNER.  R.S. SECS. 4884 AND 4898(35
U.S.C. SECS. 40 AND 47).  MOORE V. MARSH, 7 WALL.  515, 521.  WATERMAN
V. MACKENZIE, 138 U.S. 252, 256.  GAYLER V. WILDER, 10 HOW.  477, 494. 
UNITED STATES V. GENERAL ELECTRIC CO., SUPRA.  ROBINSON ON PATENTS,
SECS. 762, 763, 792, 806 ET SEQ. 

THE TRANSFORMER COMPANY COULD NOT CONVEY TO PETITIONER WHAT BOTH KNEW
IT WAS NOT AUTHORIZED TO SELL.  MITCHELL V. HAWLEY, 16 WALL.  544,
550.  BY KNOWINGLY MAKING THE SALES TO PETITIONER OUTSIDE THE SCOPE OF
ITS LICENSE, THE TRANSFORMER COMPANY INFRINGED THE PATENTS EMBODIED IN
THE AMPLIFIERS.  RUBBER CO. V. GOODYEAR, SUPRA.  BEMENT V. NATIONAL
HARROW CO., SUPRA.  UNITED STATES V. GENERAL ELECTRIC CO., SUPRA.
VULCAN MFG. CO. V. MAYTAG CO., 73 F.(2D) 136, 139.  L.E. WATERMAN CO.
V. KLINE, 234 FED. 891, 893.  PORTER NEEDLE CO. V. NAT. NEEDLE CO., 17
FED. 536.  PETITIONER, HAVING WITH KNOWLEDGE OF THE FACTS BOUGHT AT
SALES CONSTITUTING INFRINGEMENT, DID ITSELF INFRINGE THE PATENTS
EMBODIED IN THE AMPLIFIERS WHEN IT LEASED THEM FOR USE AS TALKING
PICTURE EQUIPMENT IN THEATERS.  MITCHELL V. HAWLEY, UBI SUPRA.
AMERICAN COTTON-TIE SUPPLY CO. V. BULLARD, FED. CAS. NO. 294, 1 FED.
CAS. 625, 629, 630.  SEE ROBINSON ON PATENTS, SEC. 824.  SEE HOLIDAY V.
MATTHESON, 24 FED. 185, 186.  GENERAL ELECTRIC CO. V. CONTINENTAL LAMP
WORKS, 280 FED. 846, 851.  AS PETITIONER AT THE TIME IT BOUGHT THE
AMPLIFIERS KNEW THAT THE SALES CONSTITUTED INFRINGEMENT OF THE PATENTS
EMBODIED IN THEM, PETITIONER'S SECOND QUESTION, AS TO EFFECT OF THE
LICENSE NOTICE, NEED NOT BE CONSIDERED. 

3.  PETITIONER'S AFFIRMATIVE STATEMENT OF ITS THIRD QUESTION IS:  "AN
INVENTOR WHO HAS FILED AN APPLICATION FOR PATENT SHOWING AND
DESCRIBING, BUT NOT CLAIMING, CERTAIN INVENTIONS CANNOT OBTAIN A VALID
PATENT FOR SAID INVENTIONS BY VOLUNTARILY FILING A 'DIVISIONAL' OR
'CONTINUATION' APPLICATION FOR SAID UNCLAIMED INVENTIONS MORE THAN TWO
YEARS SUBSEQUENT TO PUBLIC USE OF THE SAID UNCLAIMED INVENTIONS BY HIM
OR HIS ASSIGNEE OR LICENSEE."  IT MAKES THAT CONTENTION AS TO FOUR
PATENTS:  ARNOLD PATENT NO. 1,403,475, DATED JANUARY 17, 1922; ARNOLD
PATENT NO. 1,465,332, DATED APRIL 21, 1923; ARNOLD PATENT NO.
1,329,283, DATED JANUARY 27, 1920; AND ARNOLD PATENT NO. 1,448,550,
DATED MARCH 13, 1923. 

THE DISTRICT COURT AND CIRCUIT COURT OF APPEALS FOUND THAT THERE WAS
NO PUBLIC USE OF EITHER OF THE INVENTIONS OF THE FIRST TWO PATENTS
PRIOR TO THE FILING DATES OF THE DIVISIONAL APPLICATIONS UPON WHICH
THEY ISSUED.  THESE FINDINGS WERE MADE UPON ADEQUATE EVIDENCE AND
PETITIONER'S CONTENTIONS AS TO THEM WILL NOT BE CONSIDERED HERE. 

THE SUBJECTS MATTER OF THE CLAIMS OF THE OTHER TWO PATENTS WERE
DISCLOSED IN THE ORIGINAL APPLICATIONS AND WERE CLAIMED IN THE
CONTINUATION APPLICATIONS UPON WHICH THEY ISSUED.  THE PATENTEE'S USE
WAS THE ONLY "PUBLIC USE" OF THE INVENTIONS COVERED BY THEM.  AND THAT
DID NOT PRECEDE BY AS MUCH AS TWO YEARS THE FILING OF THE ORIGINAL
APPLICATIONS.  THE EFFECTIVE DATES OF THE CLAIMS OF THE CONTINUATION
APPLICATIONS ARE THOSE OF THE ORIGINAL APPLICATIONS.  IN THE ABSENCE OF
INTERVENING ADVERSE RIGHTS FOR MORE THAN TWO YEARS PRIOR TO THE
CONTINUATION APPLICATIONS, THEY WERE IN TIME* .  R.S. SEC. 4886(35
U.S.C. SEC. 31).  CROWN CORK & SEAL CO. V. GUTMANN CO., ANTE, P. 159. 
*THIS SENTENCE OF THE OPINION IS REPORTED AS AMENDED BY ORDER OF MAY
16, 1938, POST, P. 546.  AFFIRMED. 

MR. JUSTICE ROBERTS, MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE.    MR. JUSTICE
BLACK, DISSENTING. 

THE DECISIONS IN THIS CASE AND CROWN CORK & SEAL CO. V. GUTMANN CO.,
ANTE, P. 159, WILL INEVITABLY RESULT IN A SWEEPING EXPANSION OF THE
STATUTORY BOUNDARIES CONSTITUTIONALLY FIXED BY CONGRESS TO LIMIT THE
SCOPE AND DURATION OF PATENT MONOPOLIES. 

THE AREA OF THE PATENT MONOPOLY IS EXPANDED BY THE HOLDING THAT THE
EXCLUSIVE RIGHT GRANTED AN INVENTOR TO "MAKE, USE AND VEND" HIS
PATENTED COMMERCIAL DEVICE, PERMITS THE INVENTOR'S CORPORATE ASSIGNEE
(AND OTHER "PATENT POOL" PARTICIPANTS) TO CONTROL HOW, AND WHERE THE
DEVICE CAN BE USED BY A PURCHASER WHO BOUGHT IT IN THE OPEN MARKET. 
FN1 

PETITIONER BOUGHT AMPLIFYING TUBES FROM THE AMERICAN TRANSFORMER
COMPANY, A LICENSEE AUTHORIZED TO "MANUFACTURE  ...  AND SELL ONLY FOR
RADIO AMATEUR RECEPTION, RADIO EXPERIMENTAL RECEPTION AND RADIO
BROADCAST RECEPTION."  THE DEVICES ARE OF A STANDARD AND UNIFORM TYPE
GENERALLY USEFUL IN MANY "FIELDS." 

WE ARE NOT HERE CONCERNED WITH THE RIGHT OF RESPONDENTS UNDER THE
CONTRACT WITH THE LICENSEE, AMERICAN TRANSFORMER COMPANY.  RESPONDENTS
DO NOT - IN FACT, COULD NOT - RELY ON THE CONTRACT MADE WITH THE
TRANSFORMER COMPANY, IN THIS SUIT AGAINST PETITIONER WHICH IN NO WAY
WAS A PARTY TO THAT CONTRACT.  IF THE TRANSFORMER COMPANY VIOLATED ITS
CONTRACT RESPONDENTS' REMEDY WAS BY SUIT AGAINST THE TRANSFORMER
COMPANY FOR THE BREACH.  NO QUESTION OF MALICIOUS INTERFERENCE WITH
CONTRACTUAL INTERESTS IS PRESENTED.  RESPONDENTS INSIST ONLY THAT UNDER
THEIR PATENTS, THEY HAVE THE RIGHT TO CONTROL THE USE OF THESE WIDELY
USED TUBES IN THE HANDS OF PURCHASERS FROM ONE AUTHORIZED BY
RESPONDENTS TO MANUFACTURE AND SELL THEM. 

THE MERE FACT THAT THE PURCHASER OF A STANDARD AND UNIFORM PIECE OF
ELECTRICAL EQUIPMENT HAS KNOWLEDGE THAT HIS VENDOR HAS CONTRACTED WITH
AN OWNER OF A PATENT ON THE EQUIPMENT NOT TO SELL THE EQUIPMENT FOR
CERTAIN AGREED PURPOSES DOES NOT ENLARGE THE SCOPE OR EFFECT OF THE
PATENT MONOPOLY.  THE PATENT STATUTE ONLY GIVES THE PATENTEE THE
EXCLUSIVE RIGHT TO MAKE, USE AND VEND HIS PATENTED ARTICLE. 

WHERE A LICENSEE - AUTHORIZED TO MANUFACTURE AND SELL - CONTRACTS
WITH THE PATENTEE TO ATTACH A NOTICE TO EACH PATENTED ARTICLE (A
MACHINE) OF "THE CONDITIONS OF ITS USE AND THE SUPPLIES WHICH MUST BE
USED IN THE OPERATION OF IT, UNDER PAIN OF INFRINGEMENT OF THE PATENT,"
THIS COURT HAS SAID:  "THE STATUTES RELATING TO PATENTS DO NOT PROVIDE
FOR ANY SUCH NOTICE AND  ...  (THE PATENTEE) CAN DERIVE NO AID FROM
THEM  ...  (IN A SUIT AGAINST A PURCHASER FROM THE LICENSEE).  ... 

"THE EXTENT TO WHICH THE USE OF THE PATENTED MACHINE MAY VALIDLY BE
RESTRICTED TO SPECIFIC SUPPLIES OR OTHERWISE BY SPECIAL CONTRACT
BETWEEN THE OWNER OF A PATENT AND THE PURCHASER OR LICENSEE IS A
QUESTION OUTSIDE THE PATENT LAW AND WITH IT WE ARE NOT HERE
CONCERNED."  FN2 

A PATENTEE HAS NO RIGHT UNDER THE PATENT LAWS TO FIX THE RESALE PRICE
OF HIS PATENTED ARTICLE FN3  OR TO REQUIRE THAT SPECIFIED UNPATENTED
MATERIALS BE USED IN CONJUNCTION WITH IT.  FN4  THE EXCLUSIVE RIGHT TO
VEND DOES NOT - ANY MORE THAN THE EXCLUSIVE RIGHT TO USE - EMPOWER A
PATENTEE TO EXTEND HIS MONOPOLY INTO THE COUNTRY'S CHANNELS OF TRADE
AFTER MANUFACTURE AND SALE WHICH PASSES TITLE.  IT IS NOT CONTENDED
THAT PETITIONER DID NOT OBTAIN TITLE TO THE TUBES. 

THE PATENT STATUTE WHICH PERMITS A PATENTEE TO "MAKE, USE AND VEND"
CONFERS NO POWER TO FIX AND RESTRICT THE USES TO WHICH A MERCHANTABLE
COMMODITY CAN BE PUT AFTER IT HAS BEEN BOUGHT IN THE OPEN MARKET FROM
ONE WHO WAS GRANTED AUTHORITY TO MANUFACTURE AND SELL IT.  NEITHER THE
RIGHT TO MAKE, NOR THE RIGHT TO USE, NOR THE RIGHT TO SELL A CHATTEL,
INCLUDES THE RIGHT - DERIVED FROM PATENT MONOPOLY APART FROM CONTRACT -
TO CONTROL THE USE OF THE SAME CHATTEL BY ANOTHER WHO HAS PURCHASED IT.
A LICENSE TO SELL A WIDELY USED MERCHANTABLE CHATTEL MUST BE AS TO
PROSPECTIVE PURCHASERS - IF ANYTHING - A TRANSFER OF THE PATENTEE'S
ENTIRE RIGHT TO SELL; IT CANNOT - AS TO NON-CONTRACTING PARTIES -
RESTRICT THE USE OF ORDINARY ARTICLES OF PURCHASE BOUGHT IN THE OPEN
MARKET.  "THE WORDS USED IN THE STATUTE ARE FEW, SIMPLE AND FAMILIAR,
...  AND THEIR MEANING WOULD SEEM NOT TO BE DOUBTFUL IF WE CAN AVOID
READING INTO THEM THAT WHICH THEY REALLY DO NOT CONTAIN."  FN5
PETITIONER IS HELD LIABLE FOR USING AN ORDINARY VACUUM AMPLIFYING TUBE
BOUGHT FROM ONE WHO HAD TITLE AND THE RIGHT TO SELL.  NOTICE TO
PETITIONER THAT THE VENDOR WAS VIOLATING ITS (THE VENDOR'S) CONTRACT
WITH RESPONDENTS GAVE THE LATTER NO RIGHT UNDER THE PATENT AND IMPOSED
NO RESPONSIBILITY UNDER THE PATENT.  PETITIONER BECAME THE OWNER OF THE
TUBES. 

AT THIS TIME A GREAT PORTION OF THE COMMON ARTICLES OF COMMERCE AND
TRADE IS PATENTED.  A LARGE PART OF THE MACHINERY AND EQUIPMENT USED IN
PRODUCING GOODS THROUGHOUT THE COUNTRY IS PATENTED.  MANY SMALL PARTS
ESSENTIAL TO THE OPERATION OF MACHINERY ARE PATENTED.  PATENTED
ARTICLES ARE EVERYWHERE.  THOSE WHO ACQUIRE CONTROL OF NUMEROUS
PATENTS, COVERING WIDE FIELDS OF INDUSTRY AND BUSINESS, CAN - BY VIRTUE
OF THEIR PATENTS - WIELD TREMENDOUS INFLUENCE ON THE COMMERCIAL LIFE OF
THE NATION.  IF THE EXCLUSIVE PATENT PRIVILEGE TO "MAKE, USE AND VEND"
INCLUDES THE FURTHER PRIVILEGE AFTER SALE, TO CONTROL - APART FROM
CONTRACT - THE USE OF ALL PATENTED MERCHANTABLE COMMODITIES, A STILL
MORE SWEEPING POWER CAN BE EXERCISED BY PATENT OWNERS.  THIS RECORD
INDICATES THE POSSIBLE EXTENT OF A POWER TO DIRECT AND CENSOR THE
ULTIMATE USE OF THE MULTITUDINOUS PATENTED ARTICLES WITH WHICH THE
NATION'S DAILY LIFE IS CONCERNED. 

THIS RECORD SHOWS THAT THE GENERAL ELECTRIC COMPANY SYSTEM, THE RADIO
CORPORATION SYSTEM, AND THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY
SYSTEM ARE PARTICIPANTS IN A "PATENT POOL."  THIS "PATENT POOL"
CONTROLS RESPONDENTS' PATENTS.  THE RECORD DISCLOSES THAT THIS "PATENT
POOL" OPERATES UNDER CROSS LICENSING AGREEMENTS, IN THE UNITED STATES
AND IN FOREIGN COUNTRIES.  IT APPEARS THAT THE GENERAL ELECTRIC COMPANY
AND THE RADIO CORPORATION HAVE "AGREED THAT THE RADIO CORPORATION SHALL
NOT RESELL PATENTED ARTICLES EXCEPT AS A PART OF THE RADIO SYSTEM," AND
THAT THE RADIO CORPORATION "AGREES TO USE CARE NOT TO ENTER WITH ANY
PATENT DEVICE, PROCESS OR SYSTEM INTO THE FIELD OF THE GENERAL ELECTRIC
COMPANY OR TO ENCOURAGE OR AID OTHERS TO DO SO."  THROUGHOUT THE ENTIRE
AGREEMENT APPEARS THE MANIFEST PURPOSE OF THE "PATENT POOL"
PARTICIPANTS TO PROTECT FOR EACH OTHER CERTAIN ALLOCATED "FIELDS" IN
THE PRODUCTION, SALE AND DISTRIBUTION OF MODERN ELECTRICAL NECESSITIES
USED IN EVERYTHING INVOLVING MODERN COMMUNICATIONS.  ALTHOUGH THE
PATENT LAWS CONTEMPLATE AND AUTHORIZE BUT ONE PATENT MONOPOLY FOR ONE
INVENTION, MANY SEPARATE PATENTS AUTHORIZING SINGLE PATENT MONOPOLIES
ARE MERGED IN THIS "PATENT POOL."  THUS, ALL THESE SEPARATE PATENT
MONOPOLIES ARE COMBINED AND IN MANY RESPECTS ARE MADE TO FUNCTION AS
ONE.  THE RECORD SHOWS THAT FROM THIS LARGER COMBINATION - COMPLETELY
OUTSIDE THE CONCEPTION IN THE PATENT STATUTES OF SINGLE AND SEPARATE
MONOPOLIES - ALLOTMENTS OF SUB-MONOPOLIES ARE MADE IN THE RESPECTIVE
"FIELDS," FROM WHICH EMANATE IN TURN OTHER SUB-MONOPOLIES.  THIS COURT
HAS PREVIOUSLY DIRECTED ATTENTION TO THE TENDENCY OF SUCH COMBINATIONS
TO STIMULATE PATENT LAW ABUSES, IN THE FOLLOWING LANGUAGE:  "IT WAS NOT
UNTIL THE TIME CAME IN WHICH THE FULL POSSIBILITIES SEEM FIRST TO HAVE
BEEN APPRECIATED OF UNITING, IN ONE, MANY BRANCHES OF BUSINESS THROUGH
CORPORATE ORGANIZATION AND OF GATHERING GREAT PROFITS IN SMALL
PAYMENTS, WHICH ARE NOT REALIZED OR RESENTED, FROM MANY, RATHER THAN
SMALLER OR EVEN EQUAL PROFITS IN LARGER PAYMENTS, WHICH ARE FELT AND
MAY BE REFUSED, FROM A FEW, THAT IT CAME TO BE THOUGHT THAT THE 'RIGHT
TO USE  ...  THE INVENTION' OF A PATENT GAVE TO THE PATENTEE OR HIS
ASSIGNS THE RIGHT TO RESTRICT THE USE OF IT TO MATERIALS OR SUPPLIES
NOT DESCRIBED IN THE PATENT AND NOT BY ITS TERMS MADE A PART OF THE
THING PATENTED."  FN6 

ARTICLES MANUFACTURED UNDER THE PATENTS THUS CONTROLLED ARE WIDELY
USED IN THE MODERN ELECTRICAL FIELD.  THE EXCLUSIVE PRIVILEGE TO
EXERCISE THE UNRESTRAINED POWER TO DETERMINE THE ULTIMATE USES OF ALL
THESE IMPORTANT MERCHANTABLE ARTICLES SOLD IN THE OPEN MARKET, IS A
POWER I DO NOT BELIEVE CONGRESS HAS CONFERRED.  A POWER SO FAR REACHING
- APART FROM CONTRACT - HAS NOT BEEN EXPRESSLY GRANTED IN ANY STATUTE,
AND SHOULD NOT BE READ INTO THE LAW BY IMPLICATION. 

SECOND.  THE NUMEROUS PATENTS ACQUIRED BY RESPONDENTS ALL RELATE TO
CLAIMED INVENTIONS MADE BETWEEN 1912 AND 1916; YET, SOME OF THESE
PATENTS DO NOT EXPIRE UNTIL 1940.  PATENT NO. 1448550 ILLUSTRATES MOST
OF THE PATENTS INVOLVED.  IT IS DESIGNATED AS THE "CONTINUATION" OF TWO
EARLIER APPLICATIONS FILED SEPTEMBER 3, 1915 AND NOVEMBER 2, 1915. 
FEBRUARY 3, 1919 - MORE THAN FOUR YEARS AFTER RESPONDENTS' COMMERCIAL
USE - THE "CONTINUATION" APPLICATION WAS FILED AND MARCH 13, 1923, THE
PATENT WAS GRANTED.  BY THIS PROCESS OF "DIVISIONALS" OR
"CONTINUATIONS" A SEVENTEEN YEAR PATENT MONOPOLY IS PERMITTED TO BEGIN
IN 1923, THEORETICALLY BASED ON ORIGINAL APPLICATIONS WHICH WERE FILED
IN 1915. 

CONGRESS HAS PROVIDED THAT TWO YEARS' PUBLIC USE OF AN INVENTION
PRIOR TO APPLICATION BARS THE RIGHT TO PATENT  FN7  AND NO PATENT
RIGHTS ARE AWARDED FOR DISCLOSURES IN AN APPLICATION WHICH ARE NOT
CLAIMED.  FN8  HERE, HOWEVER, APPROVAL IS GIVEN PATENTS FOR INVENTIONS
AS THE DISTRICT COURT FOUND AND THE RECORD SHOWS - PUBLICLY USED FOR
MORE THAN TWO YEARS BEFORE APPLICATIONS ACTUALLY CLAIMING THE INVENTION
WERE FILED.  THIS APPROVAL IS BASED ON THE FACT THAT DISCLOSURES
(UNCLAIMED) WERE MADE IN PRIOR AND SEPARATE APPLICATIONS WHICH HAD NOT
BEEN PRECEDED BY TWO YEARS' PUBLIC USE.  "DIVISIONAL" OR "CONTINUATION"
APPLICATIONS - UNAUTHORIZED BY ANY STATUTE - ARE PERMITTED TO GIVE
PRIORITY FROM THE DATE OF ORIGINAL APPLICATIONS, IN EFFECT BARRING ALL
OTHER INVENTIONS FROM THAT DATE AND NULLIFYING THE STATUTE OF TWO
YEARS' PUBLIC USE.  THUS FOR YEARS RESPONDENTS OBTAINED NO PATENT ON
THEIR INVENTIONS FOR LACK OF CLAIM.  NO ONE ELSE COULD SAFELY OBTAIN A
PATENT BECAUSE OF THE CERTAINTY THAT RESPONDENTS WOULD LATER CLAIM
UNDER A "DIVISIONAL" OR "CONTINUATION." 

THE STATUTE PROVIDES NO EXCEPTION OF PUBLIC USE BY THE INVENTOR AND,
IF HE USES HIS COMPLETED INVENTION IN THE ORDINARY CONDUCT OF HIS
BUSINESS - FOR MORE THAN TWO YEARS PRIOR TO HIS APPLICATION - THE
DISCOVERY IS ABANDONED TO THE PUBLIC AND HE CANNOT THEREAFTER OBTAIN A
PATENT.  FN9  SUCH AN EXCEPTION - GRAFTED ONTO THE STATUTE - WOULD BE
DIRECTLY CONTRARY TO ITS AIM AND PURPOSE, AND WOULD ENABLE INVENTORS TO
OBTAIN ALL THE BENEFITS OF MONOPOLY BY SIMPLY MAKING UNCLAIMED
DISCLOSURES, BLANKETING THE FIELD, AND WAITING UNTIL SOMEONE ELSE
ATTEMPTED TO CLAIM A PATENT ON THE SAME INVENTION.  THEN, BY MEANS OF
"DIVISIONAL" OR "CONTINUATION" APPLICATIONS, PATENT COULD BE OBTAINED. 
NO SUCH EXPANSION OF THE PATENT STATUTES IS JUSTIFIED.  FN10  I BELIEVE
THE JUDGMENT OF THE COURT OF APPEALS SHOULD BE REVERSED. 

FN1  THE PATENTED DEVICE HERE IS AN AMPLIFYING TUBE, AND THE OPINION
OF THE DISTRICT JUDGE STATED:  "THE AMPLIFYING DEVICES REQUIRED TUBES
WHICH THE DEFENDANT PROCURED IN THE OPEN MARKET BY PURCHASE FROM
AUTHORIZED DISTRIBUTORS; EACH TUBE CARTON BORE A LICENSE NOTICE READING
AS FOLLOWS:

                       'LICENSE NOTICE. 

"IN CONNECTION WITH DEVICES IT SELLS, RADIO CORPORATION OF AMERICA
HAS RIGHTS UNDER PATENTS HAVING CLAIMS (A) ON THE DEVICES THEMSELVES
AND (B) ON COMBINATION OF THE DEVICES WITH OTHER DEVICES OR ELEMENTS,
AS FOR EXAMPLE IN VARIOUS CIRCUITS AND HOOKUPS.'" 

FN2  MOTION PICTURE CO. V. UNIVERSAL FILM CO., 243 U.S. 502, 509; SEE
KEELER V. STANDARD FOLDING BED CO., 157 U.S. 659. 

FN3  BAUER & CIE V. O'DONNELL, 229 U.S. 1; STRAUS V. VICTOR TALKING
MACH. CO., 243 U.S. 490; BOSTON STORE V. AMERICAN GRAPHOPHONE CO., 246
U.S. 8; CF. BOBBS-MERRILL CO. V. STRAUS, 210 U.S. 339. 

FN4  MOTION PICTURE CO. V. UNIVERSAL FILM CO., SUPRA; CARBICE CORP.
V. AMERICAN PATENTS CORP., 283 U.S. 27; LEITCH MFG. CO. V. BARBER CO.,
302 U.S. 458. 

FN5  MOTION PICTURE CO. V. UNIVERSAL FILM CO., SUPRA, AT 510. 

FN6  MOTION PICTURE CO. V. UNIVERSAL FILM CO. SUPRA, 513-514. 

IN THE AGREEMENT BETWEEN THE GENERAL ELECTRIC COMPANY AND THE
AMERICAN TELEPHONE AND TELEGRAPH COMPANY, THIS APPEARS:

                            "ARTICLE VIII. 

                    "ACQUISITION OF PATENT RIGHTS. 

"NEITHER PARTY SHALL ACQUIRE FROM OTHERS RIGHTS TO DO UNDER UNITED
STATES PATENTS OR INVENTIONS, OR RIGHTS TO USE SECRET PROCESSES,
APPLICABLE TO THE FIELDS OF THE OTHER PARTY, OF SUCH LIMITED CHARACTER
THAT THE OTHER PARTY DOES NOT, BY THE OPERATION OF THIS AGREEMENT,
RECEIVE LICENSES THEREUNDER OF THE SCOPE AND WITHIN THE RESPECTIVE
FIELDS HEREIN SET FORTH, UNLESS THE PARTY PROPOSING TO ACQUIRE SUCH
RIGHTS SHALL FIRST HAVE GIVEN THE OTHER PARTY AN OPPORTUNITY TO BE
REPRESENTED IN THE NEGOTIATIONS AND THEREBY TO ACQUIRE RIGHTS FOR ITS
FIELD." 

FN7  35 U.S.C., C. 2, SEC. 31. 

FN8  CF., THE CORN-PLANTER PATENT, 23 WALL.  181, 224; MILLER V.
BRASS CO., 104 U.S. 350, 352; MCCLAIN V. ORTMAYER, 141 U.S. 419, 423,
424; BUFFINGTON'S IRON BUILDING CO. V. EUSTIS, 65 FED. 804, 807; ELY
NORRIS SAFE CO. V. MOSLER SAFE CO., 62 F.(2D) 524, 526.    FN9  "A
SINGLE SALE TO ANOTHER OF SUCH A MACHINE AS THAT SHOWN TO HAVE BEEN IN
USE BY THE COMPLAINANT MORE THAN TWO YEARS PRIOR TO THE DATE OF HIS
APPLICATION WOULD CERTAINLY HAVE DEFEATED HIS RIGHT TO A PATENT; AND
YET, DURING THAT PERIOD IN WHICH ITS USE BY ANOTHER WOULD HAVE DEFEATED
ITS RIGHT, HE HIMSELF USED IT, FOR THE SAME PURPOSE FOR WHICH IT WOULD
HAVE BEEN USED BY A PURCHASER.  WHY SHOULD THE SIMILAR USE BY HIMSELF
NOT BE COUNTED AS STRONGLY AGAINST HIS RIGHTS AS THE USE BY ANOTHER TO
WHOM HE HAD SOLD IT, UNLESS HIS USE WAS SUBSTANTIALLY WITH THE MOTIVE
AND FOR THE PURPOSE, BY FURTHER EXPERIMENT, OF COMPLETING THE
SUCCESSFUL OPERATION OF HIS INVENTION?"  SMITH & GRIGGS MFG. CO. V.
SPRAGUE, 123 U.S. 249, 257; INTERNATIONAL TOOTH CROWN CO. V. GAYLORD,
140 U.S. 55; SEE A. SCHRADER'S SONS, INC. V. WEIN SALES CORP., 9 F.(2D)
306, 208. 

FN10  CF., "THE PATENT LAW WAS DESIGNED FOR THE PUBLIC BENEFIT, AS
WELL AS FOR THE BENEFIT OF INVENTORS.  ... 

"  ...  A TERM OF FOURTEEN (NOW SEVENTEEN) YEARS WAS DEEMED
SUFFICIENT FOR THE ENJOYMENT OF AN EXCLUSIVE RIGHT OF AN INVENTION BY
THE INVENTOR; BUT IF HE MAY DELAY AN APPLICATION FOR HIS PATENT, AT
PLEASURE, ALTHOUGH HIS INVENTION BE CARRIED INTO PUBLIC USE, HE MAY
EXTEND THE PERIOD BEYOND WHAT THE LAW INTENDED TO GIVE HIM."  SHAW V.
COOPER, 7 PET. 292, 320, 322. 
..END :











PACIFIC NATIONAL CO. V. WELCH, 304 U.S. 191 


NO. 528.  ARGUED MARCH 3, 1938.  - DECIDED MAY 2, 1938.  - 91 F.2D 590,
AFFIRMED. 


A TAXPAYER WHO, IN HIS INCOME TAX RETURN FOR 1928, REPORTED INCOME
FROM SALES OF PROPERTY ACCORDING TO THE DEFERRED PAYMENT METHOD,
ALTHOUGH HE MIGHT HAVE USED THE INSTALLMENT METHOD, IS NOT ENTITLED,
UPON A CLAIM FOR REFUND, AFTER THE TIME FOR FILING THE RETURN HAS
EXPIRED, TO HAVE THE INCOME COMPUTED ACCORDING TO THE INSTALLMENT
METHOD, AT LEAST WHERE IT IS NOT SHOWN THAT THE DEFERRED PAYMENT
METHOD, RIGHTLY APPLIED, DOES NOT CLEARLY REFLECT HIS INCOME.  P. 192. 

PACIFIC NATIONAL CO. V. WELCH, FORMER COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 679, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
REJECTING A CLAIM FOR REFUND OF INCOME TAXES. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

MARCH 14, 1929, PETITIONER FILED ITS INCOME TAX RETURN FOR 1928.  THE
RETURN REPORTED $137,007.17 AS PROFIT RESULTING FROM SALES OF LOTS IN
THAT YEAR.  THAT FIGURE WAS ARRIVED AT BY ADDING TO THE CASH PAID IN
1928, ON ACCOUNT OF THE SALES, THE AMOUNTS LATER TO BE PAID, AND BY
DEDUCTING FROM THE TOTAL THE COST OF LOTS AND IMPROVEMENTS AND EXPENSES
OF THE SALES. 

IN 1931 PETITIONER FILED A CLAIM FOR REFUND OF THE ENTIRE TAX ON THE
GROUND THAT THE SALES HAD BEEN MADE ON THE INSTALLMENT BASIS, BUT THE
PROFITS HAD BEEN REPORTED AS IF THE SALES WERE FOR CASH, AND THAT THIS
WAS ERRONEOUS.  THE CLAIM WAS REJECTED.  PETITIONER SUED; TRIAL BY JURY
HAVING BEEN WAIVED, THE DISTRICT COURT MADE FINDINGS OF FACT AND HELD
THAT PETITIONER REPORTED INCOME AS AUTHORIZED BY THE REVENUE ACT OF
1928 AND APPLICABLE REGULATIONS, AND THEREBY MADE AN ELECTION WHICH
BECAME BINDING ON THE EXPIRATION OF THE TIME ALLOWED FOR FILING THE
RETURN.  ACCORDINGLY IT GAVE JUDGMENT FOR RESPONDENT.  UPON THE SAME
GROUND THE CIRCUIT COURT OF APPEALS AFFIRMED.  91 F.(2D) 590.  THE
DECISION BELOW BEING IN CONFLICT WITH THAT OF THE COURT OF CLAIMS IN
KAPLAN V. UNITED STATES, 18 F.SUPP.  965, WE GRANTED A WRIT OF
CERTIORARI. 

UNDER THE APPLICABLE STATUTES AND REGULATIONS, PETITIONER COULD HAVE
CHOSEN EITHER OF TWO METHODS FOR THE ASCERTAINMENT AND REPORT OF GAIN
OR LOSS ON THE SALES.  THE REVENUE ACT OF 1928, 45 STAT. 791,
ESTABLISHES BOTH.  DEFINING ONE, THE "DEFERRED PAYMENT METHOD," IT
DECLARES THAT GROSS INCOME INCLUDES PROFITS FROM SALES, SEC. 22(A);
REGULATES THE COMPUTATION OF GAIN OR LOSS, SEC. 22(E); DEFINES GAIN TO
BE THE EXCESS OF THE AMOUNT REALIZED OVER THE BASIS, SECS. 111(A), 113;
AND PROVIDES THAT THE "AMOUNT REALIZED" SHALL BE THE SUM OF ANY MONEY
RECEIVED PLUS THE FAIR MARKET VALUE OF PROPERTY (OTHER THAN MONEY)
RECEIVED, SEC. 111(C).  REGULATIONS 74, ART. 352.  DEFINING THE OTHER,
THE "INSTALLMENT METHOD," IT PROVIDES THAT, IN THE CASE OF A CASUAL
SALE OR OTHER CASUAL DISPOSITION OF PERSONAL PROPERTY FOR A PRICE
EXCEEDING $1000 OR IN THE CASE OF SALE OR OTHER DISPOSITION OF REAL
PROPERTY, IF PAYMENTS RECEIVED DURING THE TAXABLE YEAR IN WHICH THE
SALE WAS MADE DO NOT EXCEED 40 PER CENT. OF THE SELLING PRICE, THE
INCOME MAY, UNDER REGULATIONS PRESCRIBED, BE RETURNED ON THE
INSTALLMENT METHOD (SEC. 44(B)); I.E., THE TAXPAYER MAY RETURN IN ANY
TAXABLE YEAR THAT PROPORTION OF THE INSTALLMENT PAYMENTS ACTUALLY
RECEIVED IN THAT YEAR WHICH THE GROSS PROFIT REALIZED OR TO BE REALIZED
WHEN PAYMENT IS COMPLETED BEARS TO TOTAL CONTRACT PRICE.  SEE SEC.
44(A). 

REGULATIONS 74 PERMIT THE VENDOR TO RETURN INCOME FROM INSTALLMENT
SALES ON THE STRAIGHT ACCRUAL OR CASH RECEIPTS BASIS; WHEN SO REPORTED
THE SALES ARE TREATED AS DEFERRED PAYMENT SALES NOT ON THE INSTALLMENT
PLAN.  ART. 353.  IN ASCERTAINING THE AMOUNT OF PROFIT OR LOSS FROM
THAT CLASS OF SALES, THE OBLIGATIONS OF THE PURCHASER TO THE VENDOR ARE
TAKEN AT THEIR FAIR MARKET VALUE; IF THEY HAVE NONE, THE PAYMENTS IN
CASH OR OTHER PROPERTY HAVING A FAIR MARKET VALUE SHALL BE APPLIED
AGAINST AND REDUCE THE BASIS OF THE PROPERTY SOLD, AND IF IN EXCESS OF
SUCH BASIS, SHALL BE TAXABLE TO THE EXTENT OF THE EXCESS.  GAIN OR LOSS
IS REALIZED WHEN THE OBLIGATIONS ARE DISPOSED OF OR SATISFIED, THE
AMOUNT BEING THE DIFFERENCE BETWEEN THE REDUCED BASIS AND THE AMOUNT
REALIZED THEREFOR.  ART. 354. 

THE QUESTION IS WHETHER, HAVING FILED A RETURN ACCORDING TO THE
DEFERRED PAYMENT METHOD, THE TAXPAYER BY FILING CLAIM FOR REFUND IS
ENTITLED TO HAVE THE PROFIT FROM THE SALES COMPUTED ON THE INSTALLMENT
METHOD. 

PETITIONER CONTENDS THAT THE INSTALLMENT METHOD ALONE DISCLOSES ITS
INCOME FROM THE SALES OF LOTS AND THAT THE DEFERRED PAYMENT METHOD
FAILED CLEARLY TO REFLECT INCOME. 

CONCEDING THAT ITS RETURN MIGHT HAVE BEEN MADE IN ACCORDANCE WITH
EITHER METHOD, PETITIONER SAYS THAT, BEING IGNORANT OF BOTH, IT TREATED
THE SALES AS IF MADE FOR CASH AT FIGURES MENTIONED IN THE CONTRACTS. 
ITS ARGUMENT, THEREFORE, RESTS UPON THE ASSERTION, WHICH WE ASSUME TO
BE TRUE, THAT THE PROMISES OF PURCHASERS TO PAY INSTALLMENTS WERE WORTH
LESS THAN FACE VALUE.  BUT THAT FACT HAS NO BEARING UPON THE QUESTION
WHETHER PROPER APPLICATION OF THE DEFERRED PAYMENT METHOD WOULD CLEARLY
REFLECT INCOME, FOR THAT METHOD PERMITS INSTALLMENTS TO BE TAKEN AT
MARKET VALUE AND, IF THEY HAVE NO MARKET VALUE, ALLOWS POSTPONEMENT OF
ASCERTAINMENT OF GAIN OR LOSS UNTIL REALIZED.  WHILE PETITIONER'S
RETURN MAY HAVE BEEN AN INEPT APPLICATION OF THE DEFERRED PAYMENT
METHOD, THERE IS NOTHING IN IT OR THE STATEMENT OF CLAIM FOR REFUND
THAT GIVES ANY SUPPORT TO THE IDEA THAT, IF RIGHTLY APPLIED, THAT
METHOD WOULD NOT CLEARLY REFLECT INCOME. 

THE PARTIES AGREE THAT, IF ALLOWED TO CHANGE TO THE INSTALLMENT
METHOD, PETITIONER WOULD BE ENTITLED TO A REFUND IN SOME AMOUNT.  BUT
THAT FACT HAS NO TENDENCY TO DISCREDIT THE DEFERRED PAYMENT METHOD AS
INAPPLICABLE.  THE AMOUNT OF THE TAX FOR THE YEAR IN QUESTION IS ONLY
ONE OF MANY CONSIDERATIONS THAT MAY BE TAKEN INTO ACCOUNT BY THE
TAXPAYER WHEN DECIDING WHICH METHOD TO EMPLOY.  THE ONE THAT WILL
PRODUCE A HIGHER TAX MAY BE PREFERABLE BECAUSE OF PROBABLE EFFECT ON
AMOUNT OF TAXES IN LATER YEARS.  IN CASE OF OVERSTATEMENT AND
OVERPAYMENT, THE TAXPAYER MAY OBTAIN REFUND CALCULATED ACCORDING TO THE
METHOD ON WHICH THE RETURN WAS MADE.  CHANGE FROM ONE METHOD TO THE
OTHER, AS PETITIONER SEEKS, WOULD REQUIRE RECOMPUTATION AND
READJUSTMENT OF TAX LIABILITY FOR SUBSEQUENT YEARS AND IMPOSE
BURDENSOME UNCERTAINTIES UPON THE ADMINISTRATION OF THE REVENUE LAWS. 
IT WOULD OPERATE TO ENLARGE THE STATUTORY PERIOD FOR FILING RETURNS
(SEC. 53(A)) TO INCLUDE THE PERIOD ALLOWED FOR RECOVERING OVERPAYMENTS
(SEC. 322(B)).  THERE IS NOTHING TO SUGGEST THAT CONGRESS INTENDED TO
PERMIT A TAXPAYER, AFTER EXPIRATION OF THE TIME WITHIN WHICH RETURN IS
TO BE MADE, TO HAVE HIS TAX LIABILITY COMPUTED AND SETTLED ACCORDING TO
THE OTHER METHOD.  BY REPORTING INCOME FROM THE SALES IN QUESTION
ACCORDING TO THE DEFERRED PAYMENT METHOD, PETITIONER MADE AN ELECTION
THAT IS BINDING UPON IT AND THE COMMISSIONER.*  AFFIRMED. 

*COMMISSIONER V. MOORE, 48 F.(2D) 526, 528, CERTIORARI DENIED 284
U.S. 620.  MARKS V. UNITED STATES, 18 F.SUPP.  911, 913.  SYLVIA S.
STRAUSS, 33 B.T.A. 855, AFFIRMED 87 F.(2D) 1018.  MAX VIAULT, 36 B.T.A.
430, 431.  SARAH BRIARLY, 29 B.T.A. 256, 258.  LOUIS WERNER SAW MILL
CO., 26 B.T.A. 141, 144-145.  LIBERTY REALTY CORP., 26 B.T.A. 1119. 
MORGAN RUNDEL, 21 B.T.A. 1019.  JOHNSON REALTY TRUST, 21 B.T.A. 1333. 
CF. UNITED STATES V. PETTIGREW, 81 F.(2D) 666; ROSE V. GRANT, 39 F.(2D)
340; ALAMEDA INV. CO. V. MCLAUGHLIN, 33 F.(2D) 120; BUTTOLPH V.
COMMISSIONER, 29 F.(2D) 695; SAFETY ELECTRIC PRODUCTS CO. V. HELVERING,
70 F.(2D) 439; DR. PEPPER BOTTLING CO. V. COMMISSIONER, 69 F.(2D) 768;
RADIANT GLASS CO. V. BURNET, 60 APP. D.C. 351; 54 F.(2D) 718. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :























UNITED STATES V. KAPLAN, 304 U.S. 195 


NO. 667.  ARGUED MARCH 3, 4, 1938.  - DECIDED MAY 2, 1938.  - 18
F.SUPP.  965, REVERSED. 


DECIDED UPON THE AUTHORITY OF PACIFIC NATIONAL CO. V. WELCH, ANTE, P.
191. 

UNITED STATES V. KAPLAN. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 303 U.S. 629, TO REVIEW A JUDGMENT IN FAVOR OF THE
TAXPAYER IN A SUIT FOR REFUND OF INCOME TAXES. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

RESPONDENT AND HIS WIFE IN A JOINT RETURN OF INCOME TAX FOR 1929
REPORTED A PROFIT OF $194,000 FROM THE SALE OF 25 SHARES OF THE STOCK
OF "NO. 1100 PARK AVENUE," AND DISCLOSED TAX OF $2,084.20, WHICH WAS
PAID.  THE TAXABLE INCOME WAS LESS THAN THE PROFIT IN QUESTION.  IT
RESULTED FROM THE SALE BY HIM, APRIL 11, 1929, FOR A NET PRICE OF
$240,000 OF STOCK BOUGHT IN 1928 FOR $46,000.  THE BUYER AGREED TO PAY
$25,000 CASH AND THE BALANCE IN INSTALLMENTS OF $1,875 A MONTH.  FOR
1930, RESPONDENT AND HIS WIFE FILED A RETURN SHOWING NO TAXABLE
INCOME.  FOR 1931 AND 1932, RESPONDENT FILED NO RETURNS.  IN 1932 HE
FILED A CLAIM FOR REFUND OF THE ENTIRE 1929 INCOME TAX.  THE GROUND FOR
THE CLAIM WAS THAT HE WAS ENTITLED TO REPORT THE SALE ON THE
INSTALLMENT BASIS.  THE FINDINGS INDICATE THAT THE DEFERRED PAYMENTS
WERE WORTH LESS THAN FACE VALUE; AFTER RESPONDENT AND HIS WIFE (TO WHOM
HE ASSIGNED THE CONTRACT) HAD RECEIVED $55,000, THEY AGREED TO ACCEPT
$75,000 MORE AS FULL PAYMENT.  THE COMMISSIONER REJECTED THE CLAIM AND
THIS SUIT FOLLOWED.  THE COURT OF CLAIMS GAVE RESPONDENT JUDGMENT.  18
F.SUPP.  965.  THIS COURT GRANTED A WRIT OF CERTIORARI BECAUSE OF
CONFLICT BETWEEN THE DECISION AND THAT OF THE CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT IN PACIFIC NATIONAL CO. V. WELCH, 91 F.(2D) 590,
THIS DAY AFFIRMED, ANTE, P. 191.  THE QUESTION HERE PRESENTED IS THE
SAME AS THE ONE DECIDED IN THAT CASE.  THE JUDGMENT OF THE COURT BELOW
MUST BE REVERSED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :









ARKANSAS OIL CO. V. LOUISIANA, 304 U.S. 197 


NO. 760.  ARGUED APRIL 7, 1938.  - DECIDED MAY 2, 1938.  - 176 SO. 686,
AFFIRMED. 


1.  A STATUTE OF LOUISIANA PROVIDES THAT A PERSON WHO HAS PRODUCED OIL
UNDER A LEASE GRANTED BY THE LAST RECORD OWNER HOLDING UNDER A DEED
SUFFICIENT IN TERMS TO TRANSFER TITLE, SHALL, IN THE ABSENCE OF A SUIT
TO TEST TITLE, BE PRESUMED TO BE THE TRUE OWNER OF THE OIL; THAT IT
SHALL BE UNLAWFUL FOR A PURCHASER OF OIL FROM SUCH A PERSON TO WITHHOLD
PAYMENT THEREFOR; AND THAT A PURCHASER MAKING PAYMENT TO SUCH A PERSON
SHALL BE FULLY PROTECTED AGAINST ALL OTHER CLAIMANTS.  HELD THAT, UPON
THE FACTS OF THIS CASE, A PURCHASER THUS REQUIRED TO MAKE PAYMENT WAS
NOT DEPRIVED OF ANY RIGHTS UNDER THE CONSTITUTION OF THE UNITED
STATES.  P. 198. 

THOUGH THE PURCHASER HERE CLAIMED THAT IT WOULD BE LEFT LIABLE TO THE
"TRUE OWNER," IT APPEARED THAT THERE HAD ELAPSED NEARLY ELEVEN YEARS
SINCE THE DEED WAS MADE TO THE LAST RECORD OWNER, AND FOUR YEARS SINCE
THE OIL WAS PURCHASED AND DELIVERED; IT DID NOT APPEAR THAT THERE WAS
ANY OTHER CLAIMANT, NOR THAT THE PURCHASER HAD TENDERED PAYMENT INTO
COURT FOR THE BENEFIT OF THE "TRUE OWNER," AS IT MIGHT HAVE DONE UNDER
THE STATE LAW. 

2.  A CONSTITUTIONAL QUESTION WILL NOT BE DECIDED UNLESS ITS DECISION
BE NECESSARY ON THE RECORD BEFORE THE COURT.  P. 202. 

ARKANSAS FUEL OIL CO. V. LOUISIANA EX REL. MUSLOW. 

APPEAL FROM THE COURT OF APPEAL, SECOND CIRCUIT, OF LOUISIANA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT SUSTAINING A JUDGMENT IN
FAVOR OF THE RELATOR IN AN ACTION TO RECOVER THE VALUE OF OIL SOLD AND
DELIVERED. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

APPELLANT (DEFENDANT BELOW) CHALLENGES ACT 64 OF 1934 OF LOUISIANA ON
THE GROUND THAT THE ACT "IF ENFORCED  ...  , IN THE MANNER RELIED UPON
...  , WOULD REQUIRE  ...  (APPELLANT) TO PAY TO ...  (APPELLEE) THE
VALUE OF PROPERTY WHICH DID NOT BELONG AND NEVER HAS BELONGED TO  ...
(APPELLEE), THEREBY LEAVING (APPELLANT) RESPONSIBLE AND LIABLE TO THE
TRUE OWNER OF SUCH PROPERTY FOR THE VALUE THEREOF, AND IN THAT MANNER
DEPRIVING  ...  (APPELLANT) OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW,
AND DENYING TO IT THE EQUAL PROTECTION OF THE LAWS CONTRARY TO THE
PROVISIONS AND REQUIREMENTS IN THE CONSTITUTIONS OF THE UNITED STATES
AND OF THE STATE OF LOUISIANA." 

THE ACT (THE PERTINENT PART OF WHICH IS SET OUT BELOW)  FN1  PROVIDES
THAT A PURCHASER OF OIL CAN EXTINGUISH THE INDEBTEDNESS FOR THE OIL (AS
AGAINST ALL OTHER PARTIES) BY PAYING THE PERSON WHO DRILLED AND SOLD IT
UNDER A LEASE FROM THE LAST "RECORD OWNER," IF THE RECORDED INSTRUMENT
OF CONVEYANCE IS SUFFICIENT TO PASS TITLE IN LOUISIANA, AND IN THE
ABSENCE OF ANY SUIT FILED TO TEST THE TITLE OF THE LAND OR OIL OR DUE
NOTICE BY REGISTERED MAIL OF THE FILING OF SUCH SUIT.  SECTION 3
AUTHORIZED PURCHASERS TO DELAY PAYMENT FOR PURCHASES PREVIOUSLY MADE
UNTIL A LAPSE OF SIXTY DAYS AFTER EFFECTIVE DATE OF THE ACT (AUGUST 1,
1934), AND DENIED PROTECTION TO PURCHASERS WHO PAID THE "LAST RECORD"
OWNER BEFORE THE EXPIRATION OF THAT PERIOD.  THE LOUISIANA COURT OF
APPEAL DECIDED THIS SIXTY-DAY PERIOD WAS IN EFFECT A SHORT STATUTE OF
LIMITATIONS AS AGAINST ANY POSSIBLE OWNERS NOT SHOWN OF RECORD. 

THE DISTRICT COURT OF CADDO PARISH RENDERED JUDGMENT FOR APPELLEE. 
THE LOUISIANA COURT OF APPEAL, SECOND CIRCUIT, SUSTAINED  FN2  AND THE
SUPREME COURT OF LOUISIANA DENIED CERTIORARI.  THE PRESIDING JUDGE OF
THE LOUISIANA COURT OF APPEAL GRANTED AN APPEAL TO THIS COURT UNDER
AUTHORITY OF 28 U.S.C. SEC. 344(A). 

THE RECORD DISCLOSES THAT: 

MAY 24, 1927, ACKERMAN OIL COMPANY, A CORPORATION, BY ITS PRESIDENT
AND SECRETARY, EXECUTED A DEED TO A.C. BEST AND SHERMAN G. SPURR FOR
THE LAND IN QUESTION, WHICH WAS DULY RECORDED AS PROVIDED BY LOUISIANA
LAW.  APRIL 18, 1933, BEST AND SPURR EXECUTED AN OIL LEASE TO HYMAN
MUSLOW (APPELLEE) UNDER WHICH THE OWNERS WOULD RECEIVE 1/8 OF THE OIL
PRODUCED AND MUSLOW 7/8.  THEREAFTER, MUSLOW ENTERED UPON THE LEASED
LAND; EQUIPPED A WELL; CONTRACTED TO SELL OIL TO THE LOUISIANA OIL
REFINING CORPORATION; FN3  LAID A MILE AND A HALF PIPE-LINE TO
APPELLANT'S LINE AND, BETWEEN JULY, 1933, AND SEPTEMBER, 1934,
DELIVERED OIL TO APPELLANT UNDER THE CONTRACT OF SALE.  MAY 20, 1935,
MUSLOW FILED SUIT UNDER THE 1934 ACT FOR MANDAMUS TO REQUIRE PAYMENT
FOR THE OIL.  AN ALTERNATIVE WRIT OF MANDAMUS WAS ISSUED RETURNABLE MAY
28, 1935, ON WHICH DATE THE COMPANY FILED PETITION IN BANKRUPTCY UNDER
SEC. 77-B OF THE NATIONAL BANKRUPTCY ACT.  APPELLANT LATER ANSWERED AND
DID NOT QUESTION THAT IT OWED SOMEONE $445.00 FOR THE OIL, BUT ASSERTED
THAT THE CONVEYANCE TO BEST AND SPURR WAS NOT TRANSLATIVE OF TITLE TO
THE OIL DUE TO INADEQUATE CONSIDERATION AND LACK OF AUTHORITY ON THE
PART OF THE CORPORATE OFFICERS WHO SIGNED THE DEED.  DENIAL WAS MADE
THAT BEST AND SPURR WERE THE TRUE OWNERS OF THE LAND, ON THE SAME
GROUNDS.  THE COURTS OF LOUISIANA DECIDED THESE QUESTIONS AGAINST
APPELLANT.  APPELLANT ALSO ALLEGED THAT " ...  THE SAID LANDS, HAVING
BEEN FORFEITED TO THE STATE OF LOUISIANA FOR NON-PAYMENT OF TAXES ON
JULY 31, 1915, AS APPEARS FROM THE FORFEITURE  ...  ARE THE PROPERTY OF
THE STATE OF LOUISIANA."  CONCERNING THE STATUTE UNDER ATTACK, THE
COURT OF APPEAL OF LOUISIANA HAS SAID:  FN4 

"WE EXPERIENCE LITTLE DIFFICULTY IN DETERMINING THE LEGISLATIVE
INTENT IN ADOPTING THIS ACT.  IT SUPPLIED A LONG-FELT NEED, AND IN ITS
OPERATIVE EFFECT WILL SERVE TO PREVENT IMPOSITION UPON AND UNJUST
DISCRIMINATION AGAINST THOSE WHOM IT WAS INTENDED TO PROTECT.  THE ACT
ESTABLISHES A RULE OF CONDUCT FOR THE PROTECTION OF LESSORS, THEIR
ASSIGNEES UNDER OIL AND GAS LEASES, AND ALSO A RULE OF SECURITY AND
SAFETY FOR LESSEES AND THOSE HOLDING UNDER OR PURCHASING FROM THEM. 
...  THE ACT WAS DESIGNED ALSO TO PROTECT THOSE PERSONS WHOSE RIGHTS
AROSE FROM OR ARE BASED UPON CONTRACTS WITH THE LAST RECORD OWNER OF
THE LAND COVERED THEREBY, AND TO THOSE WHO DEAL WITH OR ACQUIRE FROM
SUCH PERSONS." 

APPELLANT CONTENDS THAT THIS LAW AS APPLIED WOULD ENABLE MUSLOW TO
RECOVER THE VALUE OF THE OIL DELIVERED TO APPELLANT "WHICH  ...
(MUSLOW) DID NOT OWN" AND THAT APPELLANT WOULD ALSO BE LEFT RESPONSIBLE
TO THE TRUE OWNER OF THE OIL.  THE COURT BELOW SAID THAT "OVER EIGHT
YEARS HAD ELAPSED WHEN THIS SUIT WAS FILED AND THE COMPANY, (TRANSFEROR
IN THE DEED OF RECORD) THE ONLY PERSON TO COMPLAIN, HAD NOT RAISED ITS
VOICE IN PROTEST OF ITS OFFICERS' ACTIONS."  ALTHOUGH NEARLY ELEVEN
YEARS HAVE ELAPSED SINCE DEED WAS MADE TO BEST AND SPURR AND ALMOST
FOUR YEARS SINCE APPELLANT PURCHASED, RECEIVED AND DID NOT PAY FOR THE
OIL, THE RECORD DOES NOT DISCLOSE THAT THERE HAS BEEN ANY OTHER
CLAIMANT OR PURPORTED OWNER OF THE LAND NOR DOES IT SHOW ANY EFFORT BY
APPELLANT TO PAY THE MONEY INTO COURT FOR THE BENEFIT OF A "TRUE
OWNER," AS IT MIGHT UNDER LOUISIANA LAW.  FN5  THE ONLY SUGGESTION
APPELLANT HAS MADE AS TO ANY OWNER NOT OF "RECORD" WAS THAT THE
PROPERTY BELONGED TO THE STATE OF LOUISIANA.  THAT STATE - ALLEGED BY
APPELLANT TO BE THE TRUE OWNER OF THE LAND FROM WHICH THE OIL WAS
OBTAINED - PASSED THE 1934 ACT AND ITS COURTS HAVE HELD THAT PAYMENT TO
MUSLOW WILL RELIEVE APPELLANT OF THE INDEBTEDNESS.  APPELLANT SEEKS TO
ESCAPE PAYMENT TO MUSLOW FOR THE OIL WHICH IT PURCHASED IN 1934 ON THE
GROUND THAT SUCH PAYMENT WOULD NOT DISCHARGE THE INDEBTEDNESS TO A
"TRUE OWNER" - ALLEGED TO BE THE STATE OF LOUISIANA.  THE LOUISIANA
COURT OF APPEAL SPEAKING IN THIS CASE HAS DECLARED THAT THE STATUTE
"PROTECTS THE PURCHASER IN PAYING THE PRICE TO THE ONE FROM WHOM THE
OIL HAS BEEN PURCHASED; AND, UNDER THE EXPRESS DECLARATIONS OF THE ACT,
NO RECOURSE MAY THEREAFTER BE HAD BY ANY THIRD PERSON OR ADVERSE
CLAIMANT AGAINST SUCH BUYER."  SINCE NO ADVERSE CLAIMANT TO THE LAND
HAS APPEARED IN ELEVEN YEARS, IT IS CLEAR UNDER ALL THE CIRCUMSTANCES
OF THIS CASE THAT PAYMENT FOR THE OIL BOUGHT FROM MUSLOW IN 1933 AND
1934 WILL NOT DEPRIVE APPELLANT OF ANY RIGHTS UNDER THE FEDERAL
CONSTITUTION. 

"IT IS A MATTER OF COMMON OCCURRENCE - INDEED, IT IS ALMOST THE
UNDEVIATING RULE OF THE COURTS, BOTH STATE AND FEDERAL - NOT TO DECIDE
CONSTITUTIONAL QUESTIONS (OF THE VALIDITY OF A STATE ACT) UNTIL THE
NECESSITY FOR SUCH DECISION ARISES IN THE RECORD BEFORE THE COURT." 
BAKER V. GRICE, 169 U.S. 284, 292.  WE SEE NO SUCH NECESSITY HERE.  THE
JUDGMENT APPEALED FROM IS AFFIRMED. 

FN1  "  ...  ANY PERSON, FIRM OR CORPORATION THAT HAS ACTUALLY
DRILLED OR OPENED ON ANY LAND IN THIS STATE, UNDER A MINERAL LEASE
GRANTED BY THE LAST RECORD OWNER, AS AFORESAID, OF SUCH LAND OR OF THE
MINERALS THEREIN OR THEREUNDER IF THE MINERAL RIGHTS IN AND TO SAID
LAND HAVE BEEN ALIENATED, WHO HOLDS UNDER AN INSTRUMENT SUFFICIENT IN
TERMS TO TRANSFER THE TITLE TO SUCH REAL PROPERTY, ANY WELL OR MINE
PRODUCING OIL, GAS OR OTHER MINERALS SHALL BE PRESUMED TO BE HOLDING
UNDER LEASE FROM THE TRUE OWNER OF SUCH LAND OR MINERAL RIGHTS AND THE
LESSOR, ROYALTY OWNER, LESSEE OR PRODUCER, OR PERSONS HOLDING FROM THEM
SHALL BE ENTITLED TO ALL OIL, GAS OR OTHER MINERALS SO PRODUCED, OR TO
THE REVENUES OR PROCEEDS DERIVED THEREFROM, UNLESS AND UNTIL A SUIT
TESTING THE TITLE OF THE LAND OR MINERAL RIGHTS EMBRACED IN SAID LEASE
IS FILED IN THE DISTRICT COURT OF THE PARISH WHEREIN IS LOCATED SAID
REAL PROPERTY.  A DULY RECORDED MINERAL LEASE FROM SUCH LAST RECORD
OWNER SHALL BE FULL AND SUFFICIENT AUTHORITY FOR ANY PURCHASER OF OIL,
GAS OR OTHER MINERALS PRODUCED BY THE WELL OR MINE AFORESAID TO MAKE
PAYMENT OF THE PRICE OF SAID PRODUCTS TO ANY PARTY IN INTEREST UNDER
SAID MINERAL LEASE, IN THE ABSENCE OF THE AFOREMENTIONED SUIT TO TEST
TITLE OR OF RECEIPT, BY SUCH PURCHASER, OF DUE NOTIFICATION BY
REGISTERED MAIL OF ITS FILING, AND ANY PAYMENT SO MADE SHALL FULLY
PROTECT THE PURCHASER MAKING THE SAME; AND SO FAR AS SAID PURCHASER IS
CONCERNED AS AGAINST ALL OTHER PARTIES THE PRODUCER OF SUCH OIL, GAS OR
OTHER MINERALS SHALL BE CONCLUSIVELY PRESUMED TO BE THE TRUE AND LAWFUL
OWNER THEREOF." 

FN2  STATE V. LOUISIANA OIL RFG.  CO., 176 SO. 686. 

FN3  THE LOUISIANA OIL REFINING CORPORATION WENT THROUGH
REORGANIZATION PROCEEDINGS UNDER SEC. 77-B OF THE BANKRUPTCY ACT AFTER
SUIT WAS ORIGINALLY FILED AGAINST IT BY MUSLOW.  THE ARKANSAS FUEL OIL
CO. SUCCEEDED TO ITS ASSETS AND LIABILITIES AND WAS SUBSTITUTED AS
DEFENDANT. 

FN4  STATE V. HOPE PRODUCING CO., 167 SO. 506, 510. 

FN5  ACTS OF LA., NO. 123, 1922; LA. GEN. STAT. (DART) SEC. 1556-63;
CF. SHELL PETROLEUM CORP. V. CARTER, 187 LA. 382; 175 SO. 1; SEE
CASSARD V. WOOLWORTH, 165 LA. 571, 575; 115 SO. 755. 

MR. JUSTICE STONE CONCURS IN THE RESULT. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















RUHLIN V. N.Y. LIFE INS. CO., 304 U.S. 202 


NO. 596.  ARGUED MARCH 10, 1938.  - DECIDED MAY 2, 1938.  - 93 F.2D 416,
REVERSED. 


1.  WHERE AN INSURANCE POLICY BY ITS TERMS IS INCONTESTABLE AFTER A
TIME LIMITED EXCEPT FOR NONPAYMENT OF PREMIUM AND "EXCEPT AS TO
PROVISIONS AND CONDITIONS RELATING TO DISABILITY AND DOUBLE INDEMNITY
BENEFITS," THE QUESTION WHETHER THE LATTER EXCEPTION EMBRACES, AND
EXCLUDES FROM THE LIMITATION, THE RIGHT OF THE INSURER TO RESCIND THE
AGREEMENT TO PAY DISABILITY AND DOUBLE INDEMNITY BENEFITS BECAUSE OF
FRAUD IN THE APPLICATION, IS NOT A QUESTION OF "GENERAL LAW" WHICH A
FEDERAL COURT MAY DETERMINE INDEPENDENTLY, BUT A QUESTION OF STATE LAW
WHICH THE FEDERAL COURT MUST DETERMINE IN ACCORDANCE WITH THE DECISIONS
OF THE APPROPRIATE STATE COURT.  ERIE RAILROAD CO. V. TOMPKINS, ANTE,
P. 64.  P. 204. 

2.  THE DOCTRINE OF ERIE RAILROAD CO. V. TOMPKINS IS APPLICABLE TO A
QUESTION OF CONSTRUCTION OF A CONTRACT ARISING IN A SUIT IN EQUITY.  P.
205. 

3.  CONFLICT AMONG THE CIRCUIT COURTS OF APPEALS ON QUESTIONS OF
STATE LAW IS NOT OF ITSELF A REASON FOR GRANTING A WRIT OF CERTIORARI. 
P. 206. 

4.  THE PETITION IN THIS CASE DID NOT SHOW, AS A BASIS FOR
CERTIORARI, THAT THE IMPORTANT QUESTION OF LOCAL LAW INVOLVED WAS
DECIDED BELOW "IN A WAY PROBABLY IN CONFLICT WITH APPLICABLE LOCAL
DECISIONS," OR THAT THE DECISION WAS "PROBABLY UNTENABLE" AND THEREFORE
PROBABLY IN CONFLICT WITH THE STATE LAW AS YET UNDECLARED BY THE
HIGHEST COURT OF THE STATE.  RULE 38(5)(B). 

5.  WHERE A SUIT DEPENDENT ON THE CONSTRUCTION OF AN INSURANCE POLICY
WAS PRESENTED AND DECIDED BELOW ON THE MISTAKEN ASSUMPTION THAT THE
CONSTRUCTION WAS A QUESTION OF "GENERAL" OR "FEDERAL" LAW, THIS COURT,
ON CERTIORARI, DECLINED TO DECIDE UPON THE RULE OF STATE LAW
APPLICABLE, BUT VACATED THE JUDGMENT AND REMANDED THE CAUSE TO THE
DISTRICT COURT, FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THE OPINION
AND WITH DIRECTIONS TO PERMIT SUCH AMENDMENTS OF THE PLEADINGS AS MIGHT
BE NECESSARY FOR THAT PURPOSE.  P. 206. 

RUHLIN ET AL. V. NEW YORK LIFE INSURANCE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 302 U.S. 681, TO REVIEW THE AFFIRMANCE OF AN
INTERLOCUTORY DECREE ENJOINING THE INSTITUTION OF ACTIONS ON CERTAIN
INSURANCE POLICIES, INCLUDING AN ACTION IN A STATE COURT, PENDING THE
DETERMINATION OF A SUIT TO CANCEL THE POLICIES IN PART, FOR FRAUD. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

ON FEBRUARY 14, 1935, THE NEW YORK LIFE INSURANCE COMPANY, RESPONDENT
HERE, FILED ITS BILL OF COMPLAINT IN THE DISTRICT COURT FOR WESTERN
PENNSYLVANIA TO RESCIND, BECAUSE OF CERTAIN MISREPRESENTATIONS, THE
DISABILITY AND DOUBLE INDEMNITY PROVISIONS IN FIVE POLICIES ISSUED ON
THE LIFE OF DEFENDANT JOHN G. RUHLIN, AND MADE IN FAVOR OF THE OTHER
DEFENDANTS AS BENEFICIARIES. 

THE BILL ALLEGED THAT THE PLAINTIFF IS A MUTUAL LIFE INSURANCE
COMPANY INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK AND
LAWFULLY ENGAGED IN BUSINESS IN PITTSBURGH, PA.; THAT THE DEFENDANTS
ARE TEMPORARILY LIVING IN PENNSYLVANIA, THOUGH PLAINTIFF DOES NOT KNOW
WHERE THEIR LEGAL RESIDENCE IS; THAT ON DECEMBER 1, 1928, PLAINTIFF
WROTE TWO POLICIES OF LIFE INSURANCE ON THE LIFE OF JOHN G. RUHLIN, IN
THE FACE AMOUNTS OF $10,000 AND $5,000; THAT ON JULY 7, 1930, IT WROTE
THREE ADDITIONAL, SIMILAR POLICIES IN THE FACE AMOUNT OF $4,000 EACH;
THAT CERTAIN QUESTIONS IN THE APPLICATIONS WERE ANSWERED FALSELY AND
FRAUDULENTLY BY THE INSURED; THAT ON NOVEMBER 1, 1934, JOHN G. RUHLIN
PRESENTED A CLAIM FOR TOTAL AND PERMANENT DISABILITY BENEFITS UNDER
EACH OF THE FIVE POLICIES.  THE COMPANY TENDERED INTO COURT THE SUM OF
$1,045.42, THE AGGREGATE AMOUNT OF PREMIUMS PAID FOR DISABILITY AND
DOUBLE INDEMNITY BENEFITS, AND PRAYED THAT THE DISABILITY AND DOUBLE
INDEMNITY PROVISIONS BE RESCINDED, AND FOR OTHER RELIEF NOT MATERIAL
HERE. 

THE DEFENDANTS FILED A MOTION TO DISMISS THE COMPLAINT ON THE GROUND
THAT THE POLICIES HAD BECOME INCONTESTABLE, SINCE THE SUIT WAS BROUGHT
MORE THAN TWO YEARS AFTER THE DATE OF EACH POLICY INVOLVED.  THE
"INCONTESTABILITY CLAUSE" OF EACH OF THE POLICIES READS AS FOLLOWS: 

"INCONTESTABILITY. - THIS POLICY SHALL BE INCONTESTABLE AFTER TWO
YEARS FROM ITS DATE OF ISSUE EXCEPT FOR NONPAYMENT OF PREMIUM AND
EXCEPT AS TO PROVISIONS AND CONDITIONS RELATING TO DISABILITY AND
DOUBLE INDEMNITY BENEFITS." 

THE DISTRICT COURT OVERRULED THE MOTION TO DISMISS.  THE CIRCUIT
COURT OF APPEALS AFFIRMED THE ORDER, HOLDING THAT, IN VIEW OF THEIR
EXPRESS TERMS, THE INCONTESTABILITY CLAUSES HAD NO APPLICATION TO
LIABILITY FOR DISABILITY AND DOUBLE INDEMNITY BENEFITS.  IT RECOGNIZED
THAT ITS DECISION WAS CONTRARY TO THAT REACHED BY THE CIRCUIT COURT OF
APPEALS FOR THE NINTH CIRCUIT, NEW YORK LIFE INS. CO. V. KAUFMAN, 78
F.(2D) 398, AND BY THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT,
NEW YORK LIFE INS. CO. V. TRUESDALE, 79 F.(2D) 481, WHICH HAD HELD THAT
THE EXCEPTION IN THE INCONTESTABILITY CLAUSE RELATED ONLY TO PROVISIONS
AND CONDITIONS ACTUALLY SET FORTH IN THE POLICY ITSELF, COMPARE
STROEHMANN V. MUTUAL LIFE INS. CO., 300 U.S. 435, AND THAT FRAUD WAS
NOT MENTIONED IN ANY OF THOSE PROVISIONS.  RUHLIN PETITIONED FOR
CERTIORARI, ASSERTING THE CONFLICT OF CIRCUITS.  THE COMPANY FILED A
MEMORANDUM ADMITTING THE CONFLICT, AND RAISING NO OBJECTION TO THE
GRANTING OF THE WRIT.  BECAUSE OF THE CONFLICT OF CIRCUITS, THE COURT
GRANTED CERTIORARI. 

IT WAS STATED IN CARPENTER V. PROVIDENCE WASHINGTON INS. CO., 16 PET.
495, 511, THAT QUESTIONS CONCERNING THE PROPER CONSTRUCTION OF
CONTRACTS OF INSURANCE ARE "QUESTIONS OF GENERAL COMMERCIAL LAW," AND
THAT STATE DECISIONS ON THE SUBJECT, THOUGH ENTITLED TO GREAT RESPECT,
"CANNOT CONCLUDE THE JUDGMENT OF THIS COURT."  A LIMITATION WAS PUT ON
THIS DOCTRINE IN MUTUAL LIFE INS. CO. V. JOHNSON, 293 U.S. 335, 340. 
PUTTING ASIDE ALL QUESTIONS OF POWER, THE COURT INTERPRETED A SPECIFIC
PROVISION OF AN INSURANCE CONTRACT IN ACCORDANCE WITH THE DECISION OF
THE HIGHEST COURT OF THE STATE OF VIRGINIA, WHERE DELIVERY WAS MADE. 
"ALL THAT IS HERE FOR OUR DECISION IS THE MEANING, THE TACIT
IMPLICATIONS, OF A PARTICULAR SET OF WORDS, WHICH, AS EXPERIENCE HAS
SHOWN, MAY YIELD A DIFFERENT ANSWER TO THIS READER AND TO THAT ONE. 
WITH CHOICE SO 'BALANCED WITH DOUBT,' WE ACCEPT AS OUR GUIDE THE LAW
DECLARED BY THE STATE WHERE THE CONTRACT HAD ITS BEING."  THE DECISION
IN ERIE R. CO. V. TOMPKINS, ANTE, P. 64, GOES FURTHER, AND SETTLES THE
QUESTION OF POWER.  THE SUBJECT IS NOW TO BE GOVERNED, EVEN IN THE
ABSENCE OF STATE STATUTE, BY THE DECISIONS OF THE APPROPRIATE STATE
COURT.  THE DOCTRINE APPLIES THOUGH THE QUESTION OF CONSTRUCTION ARISES
NOT IN AN ACTION AT LAW, BUT IN A SUIT IN EQUITY.  COMPARE MASON V.
UNITED STATES, 260 U.S. 545, 557, 558. 

HAD ERIE R. CO. V. TOMPKINS BEEN ANNOUNCED AT SOME PRIOR DATE THE
COURSE OF THIS CASE MIGHT HAVE BEEN DIFFERENT.  THIS COURT MIGHT NOT
HAVE ISSUED A WRIT OF CERTIORARI.  RULE 38(5) OF THE SUPREME COURT
RULES INDICATES THAT THIS COURT WILL CONSIDER, AS A REASON FOR GRANTING
A WRIT OF CERTIORARI, THE FACT THAT "A CIRCUIT COURT OF APPEALS HAS
RENDERED A DECISION IN CONFLICT WITH THE DECISION OF ANOTHER CIRCUIT
COURT OF APPEALS ON THE SAME MATTER."  SINCE JURISDICTION TO BRING UP
CASES BY CERTIORARI FROM THE CIRCUIT COURTS OF APPEALS WAS GIVEN TO
THIS COURT IN ORDER "TO SECURE UNIFORMITY OF DECISION," MAGNUM IMPORT
CO. V. COTY, 262 U.S. 159, 163, A SHOWING OF A CONFLICT OF CIRCUITS ON
A MATTER CONCERNING WHICH THE FEDERAL COURTS HAD NEVER DENIED THEIR
RIGHT TO INDEPENDENT JUDGMENT PROMPTED THIS COURT TO GRANT THE WRIT. 
E.G., ASCHENBRENNER V. U.S. FIDELITY & G. CO., 292 U.S. 80, 82;
STROEHMANN V. MUTUAL LIFE INS. CO., 300 U.S. 435, 440.  AS TO QUESTIONS
CONTROLLED BY STATE LAW, HOWEVER, CONFLICT AMONG CIRCUITS IS NOT OF
ITSELF A REASON FOR GRANTING A WRIT OF CERTIORARI.  THE CONFLICT MAY BE
MERELY COROLLARY TO A PERMISSIBLE DIFFERENCE OF OPINION IN THE STATE
COURTS.  THE RULES INDICATE THAT THE COURT WILL BE PERSUADED TO GRANT
CERTIORARI WHERE A CIRCUIT COURT OF APPEALS "HAS DECIDED AN IMPORTANT
QUESTION OF LOCAL LAW IN A WAY PROBABLY IN CONFLICT WITH APPLICABLE
LOCAL DECISIONS."  NO SUCH SHOWING WAS ATTEMPTED BY THE PETITION.  NOR
WAS IT CONTENDED THAT THE DECISION BELOW WAS "PROBABLY UNTENABLE" AND
THEREFORE PROBABLY IN CONFLICT WITH THE STATE LAW AS YET UNANNOUNCED BY
THE HIGHEST COURT OF THE STATE. 

NO DECISION AT THE PRESENT TIME COULD RECONCILE ANY "CONFLICT OF
CIRCUITS," OR DO MORE THAN ENUNCIATE A TENTATIVE RULE TO GUIDE
PARTICULAR FEDERAL COURTS.  THEREFORE, EVEN ASSUMING THAT IT IS
ADEQUATELY PRESENTED ON THE RECORD, WE DECLINE TO DECIDE THE ISSUE OF
STATE LAW.  HOWEVER, WE SHALL NOT DISMISS THE WRIT OF CERTIORARI AS
IMPROVIDENTLY GRANTED.  IN VIEW OF THE FACT THAT THE QUESTION IN THE
CASE WAS REGARDED BELOW, BOTH BY THE COURTS AND BY COUNSEL, AS ONE OF
"GENERAL" OR "FEDERAL" LAW, THE INTEREST OF JUSTICE REQUIRES THAT THE
JUDGMENT BE VACATED AND THE CAUSE REMANDED FOR THE ENFORCEMENT OF THE
APPLICABLE PRINCIPLES OF STATE LAW.  SEE VILLA V. VAN SCHAICK, 299 U.S.
152, 155-156; DUKE POWER CO. V. GREENWOOD COUNTY, 299 U.S. 259, 267
268; WATTS, WATTS & CO. V. UNIONE AUSTRIACA, 248 U.S. 9, 21. 

IT IS TRUE THAT THE CIRCUIT COURT OF APPEALS, IN RENDERING JUDGMENT
ON REARGUMENT, SAID (SEE 93 F.(2D) 416, 417): 

"FURTHERMORE, BOTH THE COURT OF APPEALS OF NEW YORK AND THE SUPREME
COURT OF PENNSYLVANIA HAVE HELD THAT THE INCONTESTABILITY CLAUSE HERE
INVOLVED CLEARLY EXCEPTS THE DOUBLE INDEMNITY AND DISABILITY PROVISIONS
FROM ITS OPERATION.  STEINBERG V. NEW YORK LIFE INS. CO., 263 N.Y. 45,
188 N.E. 152; MANHATTAN LIFE INSURANCE CO. V. SCHWARTZ, 274 N.Y. 374, 9
N.E.2D 16; GUISE V. NEW YORK LIFE INS. CO., (127 PA. SUPER.  127,) 191
ATL. 626.  WE HAVE READ THE RECENT OPINION OF THE SUPREME COURT OF
CALIFORNIA IN THE CASE OF COODLEY V. NEW YORK LIFE INSURANCE CO., 7
CAL.2D 269, (70 P.2D 602) AND THE OPINION OF JUDGE COUGHLIN IN THE CASE
OF NEW YORK LIFE INSURANCE CO. V. THOMAS, 27 D. & C. 215, BUT ARE NOT
PERSUADED THAT THE LEARNED DISTRICT JUDGE ERRED.  SINCE THE COMPANY IS
DOMICILED IN NEW YORK AND THE INSURED LIVES IN PENNSYLVANIA AND 'ALL
THAT IS HERE FOR OUR CONSIDERATION IS THE MEANING, THE TACIT
IMPLICATIONS, OF A PARTICULAR SET OF WORDS,' 'FOR THE SAKE OF HARMONY
AND TO AVOID CONFUSION' WE SHALL FOLLOW THE DECISION OF THOSE COURTS
AND HOLD THAT THE INSURANCE COMPANY IS NOT BARRED BY THE
INCONTESTABILITY CLAUSE FROM RESCINDING THE DOUBLE INDEMNITY AND
DISABILITY PROVISIONS.  MUTUAL LIFE INS. CO. V. JOHNSON, 293 U.S. 340;
TRAINOR V. AETNA CASUALTY COMPANY, 290 U.S. 47, 54." 

IT IS NOT NECESSARY HERE TO CONSIDER WHETHER, IN THE DETERMINATION OF
THE SUBSTANTIVE PENNSYLVANIA RULE, THE CIRCUIT COURT OF APPEALS WAS
CORRECT IN DECLINING TO FOLLOW THE NISI PRIUS THOMAS CASE, DIRECTLY IN
POINT, AND IN APPLYING THE GUISE CASE, WHICH WAS DECIDED BY AN
INTERMEDIATE APPELLATE COURT (127 PA. SUPER.  127; 191 A. 626), AND NOT
THE SUPREME COURT OF THE STATE AS THE COURT BELOW STATED, AND WHICH
INVOLVED A DEFENSE OF COVERAGE, AVAILABLE EVEN UNDER AN ORDINARY
INCONTESTABILITY CLAUSE AS THE OPINION IN THE GUISE CASE CLEARLY STATES
(127 PA. SUPER.  AT 133; 191 A. 626).  FN1 

A DIFFERENT CASE MIGHT HAVE BEEN PRESENTED, AND THE FACTS AND
AUTHORITIES DEVELOPED IN ANOTHER FASHION, IF THE PARTIES HAD HAD IN
MIND FROM THE FIRST THE RULE THE PENNSYLVANIA COURT WOULD HAVE
APPLIED.  THE PLEADINGS MIGHT HAVE SHOWN IN WHAT PLACE THE POLICY WAS
DELIVERED,  FN2  AND PERHAPS OTHER FACTS ATTENDING THE MAKING OF THE
INSURANCE CONTRACT.  IT MAY BE NOTED THAT PETITIONER'S BRIEF ASSERTS,
WITHOUT RECORD REFERENCE, THAT THE APPLICATIONS FOR THE FIRST TWO
POLICIES WERE MADE IN PENNSYLVANIA, AND THE APPLICATIONS FOR THE
REMAINING THREE POLICIES WERE MADE IN OHIO.  BUT AS THE RECORD STANDS,
WE KNOW ONLY THAT AT THE TIME OF BRINGING SUIT THE RESPONDENT COMPANY
WAS INCORPORATED IN NEW YORK, AND LAWFULLY ENGAGED IN BUSINESS IN
PITTSBURGH, AND THAT THE DEFENDANTS WERE THEN TEMPORARILY LIVING IN
PENNSYLVANIA. 

APPLICATION OF THE "STATE LAW" TO THE PRESENT CASE, OR ANY OTHER
CONTROVERSY CONTROLLED BY ERIE R. CO. V. TOMPKINS, DOES NOT PRESENT THE
DISPUTANTS WITH DUTIES DIFFICULT OR STRANGE.  THE PARTIES AND THE
FEDERAL COURTS MUST NOW SEARCH FOR AND APPLY THE ENTIRE BODY OF
SUBSTANTIVE LAW GOVERNING AN IDENTICAL ACTION IN THE STATE COURTS. 
HITHERTO, EVEN IN WHAT WERE TERMED MATTERS OF "GENERAL" LAW, COUNSEL
HAD TO INVESTIGATE THE ENACTMENTS OF THE STATE LEGISLATURE.  NOW THEY
MUST MERELY BROADEN THEIR INQUIRY TO INCLUDE THE DECISIONS OF THE STATE
COURTS, JUST AS THEY WOULD IN A CASE TRIED IN THE STATE COURT, AND JUST
AS THEY HAVE ALWAYS DONE IN ACTIONS BROUGHT IN THE FEDERAL COURTS
INVOLVING WHAT WERE KNOWN AS MATTERS OF "LOCAL" LAW. 

THE JUDGMENT IS VACATED AND THE CAUSE REMANDED TO THE DISTRICT COURT,
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION, WITH
DIRECTIONS TO PERMIT SUCH AMENDMENTS OF THE PLEADINGS AS MAY BE
NECESSARY FOR THAT PURPOSE.  JUDGMENT VACATED. 

FN1  THE SUPERIOR COURT SAID (127 PA. SUPER.  AT 133; 191 A. 626): 

"AN EXAMINATION OF THE CLAUSES DISCLOSES THAT THE DISABILITY
PROVISIONS OF THE POLICIES ARE EXPRESSLY EXCLUDED FROM THEIR
OPERATION.  EVEN IF THAT EXEMPTION HAD NOT BEEN INSERTED, THE CLAUSES
WOULD NOT HAVE PREVENTED THE INTERPOSITION OF THE DEFENSE HERE SET UP.
MAYER V. PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA, 121 PA. SUPERIOR
CT. 475, 184 A. 267." 

FN2  UNDER THE GENERAL DOCTRINE THE INTERPRETATION OF AN INSURANCE
CONTRACT DEPENDS ON THE LAW OF THE PLACE WHERE THE POLICY IS
DELIVERED.  MUTUAL LIFE INS. CO. V. JOHNSON, 293 U.S. AT 339.  WE DO
NOT NOW DETERMINE WHICH PRINCIPLE MUST BE ENFORCED IF THE PENNSYLVANIA
COURTS FOLLOW A DIFFERENT CONFLICT OF LAWS RULE. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






PETROLEUM CO. V. COMM'N, 304 U.S. 209 


NO. 705.  ARGUED APRIL 4, 5, 1938.  - DECIDED MAY 2, 1938.  - 12
F.SUPP.  254, AFFIRMED. 


1.  THE ACT OF MAY 14, 1934, RESTRICTING THE JURISDICTION OF THE
FEDERAL COURTS TO ENJOIN ENFORCEMENT OF ORDERS OF STATE COMMISSIONS
AFFECTING PUBLIC UTILITY RATES, IS INAPPLICABLE TO AN ORDER OF A
COMMISSION COMMANDING A CORPORATION TO PRODUCE EVIDENCE ON A CERTAIN
DATE, MADE WITHOUT NOTICE OR HEARING.  P. 214. 

2.  IN A SUIT TO ENJOIN AS UNCONSTITUTIONAL A PROJECTED INQUIRY BY A
STATE AGENCY INTO THE REASONABLENESS OF THE RATES OF A GAS COMPANY, THE
EXPENSE TO THE COMPANY OF COMPLYING WITH THE ORDER BY SHOWING THE
ORIGINAL AND HISTORICAL COSTS OF ITS PROPERTIES, COST OF REPRODUCTION
AS A GOING CONCERN, AND OTHER ELEMENTS OF VALUE RECOGNIZED BY LAW IN
FIXING RATES, IS PART OF THE AMOUNT OR VALUE IN CONTROVERSY.  P. 215. 

3.  THE OBJECTION THAT A SUIT IS NOT WITHIN EQUITY JURISDICTION
BECAUSE OF THE EXISTENCE OF A PLAIN, ADEQUATE AND COMPLETE REMEDY AT
LAW (JUD.  CODE SEC. 267) MAY BE TAKEN BY TRIAL OR APPELLATE COURT SUA
SPONTE.  P. 216. 

4.  THE ADEQUATE LEGAL REMEDY WHICH WILL DEFEAT EQUITY JURISDICTION
MUST BE A REMEDY AVAILABLE IN THE FEDERAL COURT.  P. 217. 

5.  A GAS CORPORATION OWNING VERY VALUABLE PROPERTY AND DOING A LARGE
BUSINESS SOUGHT IN A FEDERAL COURT TO ENJOIN A STATE COMMISSION FROM
CARRYING ON PROCEEDINGS TO FIX THE COMPANY'S RATES, IN ALLEGED EXCESS
OF THE COMMISSION'S JURISDICTION AND IN VIOLATION OF THE COMPANY'S
CONSTITUTIONAL RIGHTS.  HELD, THAT A LOSS OF $25,000, IN PREPARING AND
PRESENTING THE COMPANY'S CASE BEFORE THE COMMISSION, WOULD NOT
CONSTITUTE IRREPARABLE INJURY JUSTIFYING EQUITABLE INTERVENTION.  MYERS
V. BETHLEHEM SHIPBUILDING CORP., 303 U.S. 41.  P. 218. 

WHEN THE ONLY GROUND FOR INTERFERING WITH THE STATE PROCEDURE IS THE
REASONABLE COST OF PREPARING FOR A HEARING, THERE IS NO OCCASION FOR
EQUITABLE INTERVENTION.  P. 221. 

PETROLEUM EXPLORATION, INC. V. PUBLIC SERVICE COMMISSION ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF KENTUCKY. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES WHICH
DISMISSED A BILL FOR AN INJUNCTION. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A FINAL DECREE DISMISSING APPELLANT'S BILL OF
COMPLAINT FOR WANT OF JURISDICTION IN EQUITY.  IT WAS ENTERED BY THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
SITTING WITH THREE JUDGES UNDER JUDICIAL CODE, SEC. 266.  21 F.SUPP. 
254.  THE APPELLANT SOUGHT TO ENJOIN THE PUBLIC SERVICE COMMISSION OF
KENTUCKY FROM PROSECUTING AN INVESTIGATION OF WHOLESALE RATES FOR GAS
MARKETED BY CONTRACT IN KENTUCKY BY APPELLANT, ON THE GROUND THAT ANY
REGULATION OF THE RATES CHARGED BY APPELLANT TO ITS CUSTOMERS WOULD BE
BEYOND THE STATUTORY POWER OF THE COMMISSION, SINCE THE APPELLANT WAS
NOT A PUBLIC UTILITY, AND WOULD RESULT IN A DEPRIVATION OF PROPERTY
WITHOUT DUE PROCESS, A DENIAL OF EQUAL PROTECTION OF THE LAWS, AND A
VIOLATION OF THE CONTRACTS CLAUSE OF THE FEDERAL AND STATE
CONSTITUTIONS, AFFECTING CONTRACTS ENTERED INTO PRIOR TO THE PASSAGE OF
THE REGULATORY ACT  FN1  OF THE GENERAL ASSEMBLY OF KENTUCKY.  AS
GROUNDS FOR EQUITABLE RELIEF, IT WAS ALLEGED THAT THERE WAS NO ADEQUATE
REMEDY AND THAT IRREPARABLE INJURY WOULD BE INFLICTED UPON APPELLANT BY
THE LARGE EXPENSE ENTAILED IN PREPARATION FOR THE INVESTIGATION. 

APPELLANT IS A CORPORATION SOLELY OF THE STATE OF MAINE, ENGAGED IN
THE PRODUCTION AND PURCHASE OF NATURAL GAS AT VARIOUS FIELDS IN
KENTUCKY AND THE TRANSMISSION OF THAT GAS THROUGH WHOLLY INTRASTATE
PIPE LINES TO DISTRIBUTING AGENCIES AT THE "CITY GATES" OF VARIOUS
MUNICIPALITIES OF THAT COMMONWEALTH.  APPELLANT SELLS TO THREE
DISTRIBUTING AGENCIES:  A PARTNERSHIP, A CORPORATION ENTIRELY FREE OF
CONNECTION WITH APPELLANT, AND A CORPORATION IN WHICH APPELLANT OWNS A
DOMINANT INTEREST.  IT OFFERS TO SELL AND SELLS ITS COMMODITY BY
SEPARATE CONTRACTS ONLY TO THE DISTRIBUTING AGENCIES NAMED IN THE
BILL.  ALL OF THESE AGENCIES, WITH ONE IMMATERIAL EXCEPTION, ARE THE
OWNERS OF UNEXPIRED FRANCHISES PURCHASED FROM THE RESPECTIVE
MUNICIPALITIES WHICH THEY SERVE.  EITHER BY THESE FRANCHISES OR BY
SUPPLEMENTARY CONTRACT, THE RATES ARE FIXED FOR RETAIL SALES OF GAS. 
ACTING PURSUANT TO STATUTORY PROVISIONS AUTHORIZING INVESTIGATIONS OF
THE RATES OF DEFINED UTILITIES, THE PUBLIC SERVICE COMMISSION OF
KENTUCKY ISSUED ON MAY 29, 1937, AN ORDER, PERTINENT PROVISIONS OF
WHICH ARE SET FORTH IN THE MARGIN,  FN2  RECITING THAT APPELLANT IS AN
OPERATING UTILITY SUBJECT TO THE COMMISSION'S JURISDICTION, SETTING A
DATE FOR A PUBLIC HEARING, AND ORDERING APPELLANT TO APPEAR AT SUCH
HEARING AND PRESENT EVIDENCE OF THE REASONABLENESS OF ITS RATES AND
CHARGES, AND ALSO TO MAKE ITS RECORDS AVAILABLE FOR EXAMINATION. 

APPELLANT FILED A PLEA TO THE COMMISSION'S JURISDICTION, IN SUBSTANCE
SETTING UP THE OBJECTIONS SUBSEQUENTLY URGED IN THE BILL UNDER
CONSIDERATION.  THE COMMISSION OVERRULED THIS PLEA AND RESET THE
INVESTIGATION FOR HEARING ON THE MERITS.  THE APPELLANT FILED AN
APPLICATION FOR A REHEARING OF THIS ORDER.  THOUGH THE COMMISSION HAS
NOT FORMALLY PASSED UPON THIS APPLICATION IT ADMITS THAT IT INTENDED
AND THREATENED TO PROCEED WITH THE INVESTIGATION, DETERMINE AND FIX A
FAIR RATE FOR APPELLANT'S GAS, AND THAT IT WOULD HAVE SO PROCEEDED BUT
FOR THE TEMPORARY RESTRAINING ORDER OBTAINED BY APPELLANT UPON THE
FILING OF THE BILL IN QUESTION. 

APPELLANT'S BILL ALLEGED THAT IT WAS THE OBVIOUS PURPOSE OF THE
COMMISSION TO LOWER APPELLANT'S RATES, THAT THESE RATES WERE NOT
SUBJECT TO THE REGULATORY JURISDICTION OF THE COMMISSION, THAT ANY
REDUCTION WOULD VIOLATE THE FOURTEENTH AMENDMENT, AND IMPAIR THE
OBLIGATIONS OF ITS CONTRACTS, IN CONTRAVENTION OF THE CONTRACTS CLAUSES
OF THE STATE AND FEDERAL CONSTITUTIONS.  IT WAS FURTHER ALLEGED THAT
THE INVESTIGATION, AND THE ORDERS ENTERED THEREIN, ARE UNLAWFUL AND
UNREASONABLE, AND, IF FURTHER PROSECUTED, WOULD PUT APPELLANT TO
CONSIDERABLE UNLAWFUL AND NEEDLESS EXPENSE.  THE COMMISSION FILED AN
ANSWER ASSERTING THAT APPELLANT WAS SUBJECT TO ITS REGULATORY
JURISDICTION.  IT DENIED ANY PURPOSE ON ITS PART TO ATTEMPT TO LOWER
THE CONTRACT PRICE WHICH APPELLANT CHARGED THE DISTRIBUTING AGENCIES
BUT AVERRED THAT IT WOULD INSTITUTE AND CONDUCT A SPECIAL INVESTIGATION
AND PROCEEDING TO DETERMINE A FAIR AND REASONABLE PRICE OR RATE TO BE
CHARGED BY APPELLANT AND TO FIX SAID PRICE OR RATE. 

THE MAJORITY OPINION OF THE DISTRICT COURT HELD THAT AS THE ORDER
CHALLENGED COULD BE ENFORCED ONLY BY JUDICIAL PROCEEDINGS, THERE
EXISTED NO IMMEDIATELY THREATENED IRREPARABLE INJURY OR DAMAGE TO THE
APPELLANT WITHIN THE EQUITY JURISDICTION OF THE DISTRICT COURT. 
WITHOUT ANY CONSIDERATION OF THE MERITS, THE BILL WAS DISMISSED.  THE
ASSIGNMENTS OF ERROR ATTACK THIS CONCLUSION.  WE AFFIRM THE DECREE OF
THE DISTRICT COURT. 

FIRST.  THE POINT IS MADE BY APPELLEES THAT INJUNCTION IS PROHIBITED
BY THE JOHNSON ACT OF MAY 14, 1934, C. 283, SEC. 1, 48 STAT. 775, 28
U.S.C. SEC. 41(1).  THIS ACT WITHDRAWS FROM THE DISTRICT COURTS
JURISDICTION OF ANY SUIT TO ENJOIN THE ENFORCEMENT OF ANY ORDER OF A
STATE ADMINISTRATIVE COMMISSION WHERE SUCH ORDER "(1) AFFECTS RATES
CHARGEABLE BY A PUBLIC UTILITY, (2) DOES NOT INTERFERE WITH INTERSTATE
COMMERCE, AND (3) HAS BEEN MADE AFTER REASONABLE NOTICE AND HEARING,
AND WHERE A PLAIN, SPEEDY, AND EFFICIENT REMEDY MAY BE HAD AT LAW OR IN
EQUITY IN THE COURTS OF SUCH STATE."  THE JOHNSON ACT DOES NOT APPLY
HERE BECAUSE THE ORDER COMPLAINED OF, I.E., THAT OF MAY 29, 1937, WAS
ENTERED WITHOUT NOTICE OR HEARING.  THOUGH IT IS ENTITLED A "NOTICE OF
INVESTIGATION AND ORDER TO SHOW CAUSE," WHICH WOULD BE AN APPROPRIATE
METHOD OF INITIATING AN INVESTIGATION, IN FACT THE ORDER COMMANDS
APPELLANT TO PRODUCE CERTAIN EVIDENCE ON A DESIGNATED DATE, AND NOT
MERELY TO SHOW CAUSE ON THAT DATE WHY EVIDENCE SHOULD NOT BE PRODUCED. 
THE ORDER OF JUNE 29, 1937, OVERRULING THE PLEA TO THE JURISDICTION, IS
NOT FINAL BUT IS PENDING ON AN APPLICATION FOR REHEARING. 

SECOND.  THIS PROCEEDING WAS BEGUN UNDER THE PROVISIONS OF SEC. 24(1)
OF THE JUDICIAL CODE, 28 U.S.C. SEC. 41(1).  JURISDICTION WAS
CHALLENGED BY THE COMMISSION ON THE GROUND THAT THE VALUE OF THE MATTER
IN CONTROVERSY WAS NOT IN EXCESS OF $3,000.  TO SHOW THE REQUISITE
AMOUNT, APPELLANT ALLEGED THAT IT WOULD BE NECESSARY TO EXPEND $25,000
TO PRESENT THE EVIDENCE REQUIRED BY THE ORDER.  IT WAS FOUND BY THE
DISTRICT COURT FROM THE TESTIMONY AT THE TRIAL THAT "THE EXPENSE TO
PLAINTIFF OF COMPLYING WITH SAID ORDERS WOULD BE MORE THAN $3,000.00 IN
EMPLOYING APPRAISERS, GEOLOGISTS, ENGINEERS, ACCOUNTANTS, ETC., TO SHOW
THE ORIGINAL AND HISTORICAL COST OF ITS PROPERTIES, COST OF
REPRODUCTION AS A GOING CONCERN, AND OTHER ELEMENTS OF VALUE RECOGNIZED
BY THE LAW OF THE LAND FOR RATE MAKING PURPOSES." 

THE PURPOSE OF THIS PROCEEDING IS TO STOP THE INVESTIGATION OF THE
RATES UNDER THE ORDER ISSUED.  SINCE THE NECESSARY EXPENSE OF PRODUCING
THE INFORMATION DEMANDED BY THE ORDER EXCEEDS THE JURISDICTIONAL
AMOUNT, THE VALUE OF THE MATTER IN CONTROVERSY IS AT LEAST THIS SUM. 
THIS PURPOSE OR OBJECT IS ANALOGOUS TO THOSE SOUGHT IN INJUNCTIONS TO
RESTRAIN A CONTINUING TRESPASS, WHERE THE VALUE OF THE MATTER IN
CONTROVERSY INCLUDES THE COST OF REMEDYING THE CONDITION AS PART OF THE
VALUE OF THE MATTER IN CONTROVERSY, NAMELY, THE PREVENTION OF
INTERFERENCE WITH PLAINTIFF'S RIGHTS.  FN3  OTHER EXAMPLES ARE FOUND IN
A SUIT TO ENJOIN THE ENFORCEMENT OF A TAX STATUTE, WHERE THE AMOUNT OF
THE TAX IS THE VALUE OF THE MATTER IN CONTROVERSY,  FN4  AND IN A SUIT
TO ENJOIN ENFORCEMENT OF AN ORDER TO INSTALL AND MAINTAIN A TRACK,
WHERE THE VALUE OF THE MATTER IN CONTROVERSY IS THE COST OF
COMPLIANCE.  FN5  WHERE "EXPENSES INCIDENT TO COMPLIANCE" WITH A
REGULATORY STATUTE EXCEED $3,000, THE JURISDICTION IS CLEAR.  FN6
THERE IS NO CONTENTION HERE EITHER THAT THE COMMISSION'S ORDER LEFT
APPELLANT WITH ANY LESS EXPENSIVE ALTERNATIVE, OR THAT THE WORTH OF
APPELLANT'S ENTIRE BUSINESS IS LESS THAN $3,000.  IN UNDERTAKING TO
ENJOIN THIS INVESTIGATION, THE COST INCIDENT TO MAKING A SHOWING
REQUIRED BY THE COMMISSION IS NOT COLLATERAL OR INCIDENTAL TO THE
PURPOSE OF THE INJUNCTION, BUT A THREATENED EXPENSE FROM WHICH RELIEF
IS SOUGHT.  WHETHER SUCH IRRECOVERABLE COST IS AN IRREPARABLE INJURY
AGAINST WHICH EQUITY WILL PROTECT IS CONSIDERED LATER IN THIS OPINION. 
THE DISTRICT COURT HAD JURISDICTION OF THE CAUSE, AS A FEDERAL COURT. 

THIRD.  WE NEXT CONSIDER WHETHER THE SUIT MUST BE DISMISSED PURSUANT
TO SEC. 267 OF THE JUDICIAL CODE, 28 U.S.C. SEC. 384, WHICH DECLARES
THAT NO SUIT IN EQUITY SHALL BE SUSTAINED "WHERE A PLAIN, ADEQUATE, AND
COMPLETE REMEDY MAY BE HAD AT LAW."  THOUGH THIS CONTENTION WAS NOT
RAISED BELOW BY THE COMMISSION, "EITHER THE TRIAL COURT OR THE
APPELLATE MAY, OF ITS OWN MOTION, TAKE THE OBJECTION."  FN7  FOR
DETERMINATION OF THE ADEQUACY OF THIS REMEDY WE MUST HERE ASSUME THE
ALLEGATIONS OF APPELLANT THAT, UNLESS AN INJUNCTION IS GRANTED,
IRREPARABLE INJURY WILL FLOW FROM ITS COMPLIANCE WITH THE ORDER OF MAY
29. 

IT IS SETTLED THAT NO ADEQUATE REMEDY AT LAW EXISTS, SO AS TO DEPRIVE
FEDERAL COURTS OF EQUITY JURISDICTION, UNLESS IT IS AVAILABLE IN THE
FEDERAL COURTS.  FN8 IF APPELLANT IGNORES THE COMMISSION'S ORDER,
ACTION FOR RECOVERY OF PENALTIES FOR THE VIOLATION OF THE ORDER MAY BE
INSTITUTED BY THE COMMONWEALTH OF KENTUCKY.  KY. STAT. ANN. (CARROLL'S
8TH ED., BALDWIN'S 1936 REVISION) SECS. 3952-13 AND -61.  BUT THIS
PROCEEDING COULD NEITHER BE BEGUN NOR REMOVED TO THE FEDERAL COURT. 
APART FROM THE DIFFICULTY OF MAINTAINING SUCH AN ACTION IN THE FEDERAL
COURTS, IN VIEW OF ITS PENAL NATURE, THE STATE WOULD BE PROCEEDING AS
PLAINTIFF TO ENFORCE ITS LAWS; ITS COMPLAINT WOULD NOT BE GROUNDED ON
THE CONSTITUTION OR LAWS OF THE UNITED STATES, AND THERE WOULD NOT BE
DIVERSITY OF CITIZENSHIP, THE STATES NOT BEING "CITIZENS" WITHIN THE
JUDICIAL CODE.  FN9 THERE IS EQUITABLE JURISDICTION TO ENJOIN THE
PROPOSED INVESTIGATION OF APPELLANT'S RATES, IF THE ORDER OF MAY 29,
QUOTED ABOVE, CARRIES A THREAT OF IMMINENT, IRREPARABLE INJURY. 

FOURTH.  THE BILL ASKS INJUNCTIVE RELIEF TO RESTRAIN THE COMMISSION
FROM FURTHER PROSECUTING THE "INVESTIGATION" INTO THE PRICE OF GAS SOLD
UNDER APPELLANTS CONTRACTS TO THE DISTRIBUTING AGENCIES.  TWO DECISIONS
DEALING WITH ORDERS FOR FURNISHING INFORMATION HAVE RECENTLY BEEN
HANDED DOWN BY THIS COURT.  FN10  IN BOTH CASES THIS COURT DEALT WITH
THE MERITS OF THE RESPECTIVE ORDERS, DETERMINING THAT THERE WAS NO
CONSTITUTIONAL BASIS FOR SAYING THAT "ANY PERSON IS IMMUNE FROM GIVING
INFORMATION APPROPRIATE TO A LEGISLATIVE OR JUDICIAL INQUIRY."  HERE
THERE IS NO NEED TO CONSIDER THE VALIDITY OF THE CHALLENGED ORDER.  TO
JUSTIFY THE USE OF THE EXTRAORDINARY POWER OF A COURT OF EQUITY
SOMETHING MORE MUST BE INVOLVED THAN AN APPLICATION OF A STATUTE IN AN
UNCONSTITUTIONAL MANNER AGAINST COMPLAINANT.  THERE MUST BE AN
ALLEGATION AND PROOF OF THREATENED INJURY UNDER SOME OF THE RECOGNIZED
SOURCES OF EQUITABLE JURISDICTION.  FN11  THE ONE MOST FREQUENTLY
RELIED UPON IN CONSTITUTIONAL CASES, AND PLEADED HERE, IS IRREPARABLE
INJURY.  FN12  TO FURNISH THE INFORMATION REQUIRED BY THE ORDER WILL
COST $25,000, ARISING FROM THE NECESSITY OF PREPARING FOR THE HEARING
ON RATES.  IS THIS IRRECOVERABLE EXPENSE A THREATENED IRREPARABLE
INJURY WHICH A COURT OF EQUITY WILL GUARD AGAINST BY INJUNCTION? 
WHETHER OR NOT EQUITABLE RELIEF WILL BE GRANTED RESTS IN THE SOUND
DISCRETION OF THE COURT.  FN13 

IT IS TRUE THAT THE INJURY WHICH FLOWS FROM THE THREAT OF ENFORCEMENT
OF AN ALLEGEDLY UNCONSTITUTIONAL, REGULATORY STATE STATUTE WITH
PENALTIES SO HEAVY AS TO FORBID THE RISK OF CHALLENGE IN PROCEEDINGS TO
ENFORCE IT, HAS BEEN GENERALLY RECOGNIZED AS IRREPARABLE AND SUFFICIENT
TO JUSTIFY AN INJUNCTION.  FN14  THE COMMISSION URGES THAT SINCE THERE
IS AMPLE OPPORTUNITY FOR THE APPELLANT TO CONTEST IN A STATE COURT ANY
EFFORT TO REGULATE OR PUNISH FOR DISOBEDIENCE OF ORDERS, WITH ULTIMATE
REVIEW BY THIS COURT, THERE IS NO IRREPARABLE INJURY, AND THAT THE
DANGERS OF LOWERED RATES AND THREATENED PUNISHMENTS CAN BE OVERCOME BY
OPPOSITION WHEN AN EFFORT IS MADE TO ENFORCE THEM.  THE CASE OF FEDERAL
TRADE COMMISSION V. CLAIRE FURNACE CO., 274 U.S. 160, WHERE AN EFFORT
WAS MADE TO SECURE AN INJUNCTION AGAINST ENFORCEMENT OF A FEDERAL TRADE
COMMISSION ORDER TO PRODUCE INFORMATION, HAS BEEN CITED AS A
PRECEDENT.  THERE WERE HEAVY PENALTIES FOR VIOLATION OF THAT ORDER
FN15  BUT THE OPINION DISCUSSED THE ISSUES FROM THE STANDPOINT OF
FAILURE TO EXHAUST ADMINISTRATIVE REMEDY.  FN16  APPELLANT HERE INSISTS
THAT IT IS COMPELLED TO CHOOSE BETWEEN COMPLIANCE, AT A HEAVY COST, OR
NON-COMPLIANCE WITH OBVIOUS RISKS OF SEVERE, THOUGH NON-RECURRING AND
NON-CUMULATIVE, PENALTIES; FN17  AND THAT TO STAND BY SUBJECTS
APPELLANT TO THE FURTHER RISK THAT THE COMMISSION WILL FIX ITS RATES ON
THE COMMISSION'S EVIDENCE ALONE.  FN18  WE MAY ASSUME, WITHOUT
DECIDING, THAT THE RISK OF THESE PENALTIES WOULD BE SUFFICIENTLY GREAT
TO REQUIRE THE INTERPOSITION OF A COURT OF EQUITY TO PROTECT APPELLANT
AGAINST A REGULATORY ORDER.    COMPLIANCE WITH THIS ORDER, HOWEVER,
SUBJECTS APPELLANT ONLY TO AN EXPENSE IN PREPARING FOR AND CARRYING OUT
AN INVESTIGATION.  IT IS NOT SUGGESTED THAT THE EXPENSE IS
DISPROPORTIONATE TO THE BUSINESS OF APPELLANT, VALUED BY THE DISTRICT
COURT AS IN EXCESS OF $1,500,000, AND INVOLVING SALES OF ABOUT ONE
BILLION CUBIC FEET PER ANNUM, AT A PRICE OF $350,000.  NO ORDER HAS
BEEN ENTERED FIXING RATES OR REGULATING CONDUCT.  THE NECESSITY TO
EXPEND FOR THE INVESTIGATION OR TO TAKE THE RISK FOR NON-COMPLIANCE
DOES NOT JUSTIFY THE INJUNCTION.  IT IS NOT THE SORT OF IRREPARABLE
INJURY AGAINST WHICH EQUITY PROTECTS.  FN19 

THE WEIGHT TO BE GIVEN COMPLAINTS OF IRRECOVERABLE AND IRREPARABLE
COST AND DAMAGE IN PROCEEDINGS TO ENJOIN HEARINGS, INITIATED BY A
FEDERAL GOVERNMENTAL AGENCY IN A MATTER ALLEGED BY COMPLAINANTS TO BE
BEYOND THE AGENCY'S POWERS, WAS CONSIDERED IN MYERS V. BETHLEHEM
SHIPBUILDING CORP., 303 U.S. 41.  IN AN EFFORT TO ENJOIN HEARINGS BY
THE NATIONAL LABOR RELATIONS BOARD, THE CORPORATION ALLEGED (SEE 303
U.S. AT 47): 

"THAT HEARINGS WOULD, AT BEST, BE FUTILE; AND THAT THE HOLDING OF
THEM WOULD RESULT IN IRREPARABLE DAMAGE TO THE CORPORATION, NOT ONLY BY
REASON OF THEIR DIRECT COST AND THE LOSS OF TIME OF ITS OFFICIALS AND
EMPLOYEES, BUT ALSO BECAUSE THE HEARINGS WOULD CAUSE SERIOUS IMPAIRMENT
OF THE GOOD WILL AND HARMONIOUS RELATIONS EXISTING BETWEEN THE
CORPORATION AND ITS EMPLOYEES, AND THUS SERIOUSLY IMPAIR THE EFFICIENCY
OF ITS OPERATIONS." 

FURTHER ALLEGATIONS POINTED OUT SIMILAR SUBSTANTIAL DAMAGES IN
PRECEDING INVESTIGATIONS.  SEE NOTE 4 IDEM.  WHILE OTHER GROUNDS WERE
FACTORS IN OUR CONCLUSION TO REVERSE THE DECREE FOR AN INJUNCTION, WE
SAID (P. 51): 

"LAWSUITS ALSO OFTEN PROVE TO HAVE BEEN GROUNDLESS; BUT NO WAY HAS
BEEN DISCOVERED OF RELIEVING A DEFENDANT FROM THE NECESSITY OF A TRIAL
TO ESTABLISH THE FACT." 

IT MAY BE SUGGESTED THAT IN THE BETHLEHEM SHIPBUILDING CASE THE
EMPLOYER HAD NOT PRESENTED TO THE BOARD ITS CONTENTION OF
CONSTITUTIONAL IMMUNITY, AND THAT PROOF OF THAT IMMUNITY WOULD HAVE
CONSTITUTED NO GREATER INJURY IF PRESENTED TO THE BOARD THAN THE
COURTS, WHEREAS HERE THE APPELLANT HAS ALREADY BEEN OVERRULED BY THE
COMMISSION ON THE QUESTION OF APPELLANT'S CONSTITUTIONAL IMMUNITY, AND
SO WOULD BE SUBJECT TO GREATER EXPENSE BY PRESENTING FURTHER EVIDENCE
ON ANOTHER MATTER BEFORE THE COMMISSION THAN BY PROCEEDING IN AN EQUITY
COURT AND THERE CONTESTING THE COMMISSION'S JURISDICTION.  THIS WAS THE
ARGUMENT PRESENTED TO THE COURT, BUT NOT DISCUSSED, IN UNITED STATES V.
ILLINOIS CENTRAL R. CO., 244 U.S. 82, 85-86.  THE SITUATION IS STILL
CONTROLLED BY THE ABIDING AND FUNDAMENTAL PRINCIPLE OF THIS ASPECT OF
THE BETHLEHEM SHIPBUILDING CASE, THAT THE EXPENSE AND ANNOYANCE OF
LITIGATION IS "PART OF THE SOCIAL BURDEN OF LIVING UNDER GOVERNMENT." 
FN20  THE AUTHORITY IN OTHER COURTS IS IN ACCORD.  FN21 

FIFTH.  OUR CONCLUSION THAT THIS IS NOT A THREATENED INJURY
JUSTIFYING INTERVENTION IS STRENGTHENED BY A BALANCING OF
CONVENIENCES.  BY THE PROCESS OF INJUNCTION THE FEDERAL COURTS ARE
ASKED TO STOP AT THE THRESHOLD, THE EFFORT OF THE PUBLIC SERVICE
COMMISSION OF KENTUCKY TO INVESTIGATE MATTERS ENTRUSTED TO ITS CARE BY
A STATUTE OF THAT COMMONWEALTH OBVIOUSLY WITHIN THE BOUNDS OF STATE
AUTHORITY IN MANY OF ITS PROVISIONS.  THE PRESERVATION OF THE AUTONOMY
OF THE STATES IS FUNDAMENTAL IN OUR CONSTITUTIONAL SYSTEM.  THE
EXTRAORDINARY POWERS OF INJUNCTION SHOULD BE EMPLOYED TO INTERFERE WITH
THE ACTION OF THE STATE OR THE DEPOSITARIES OF ITS DELEGATED POWERS,
ONLY WHEN IT CLEARLY APPEARS THAT THE WEIGHT OF CONVENIENCE IS UPON THE
SIDE OF THE PROTESTANT.  FN22  "ONLY A CASE OF MANIFEST OPPRESSION WILL
JUSTIFY A FEDERAL COURT IN LAYING SUCH A CHECK UPON ADMINISTRATIVE
OFFICERS ACTING COLORE OFFICII IN A CONSCIENTIOUS ENDEAVOR TO FULFILL
THEIR DUTY TO THE STATE."  FN23  THE KENTUCKY STATUTE IN QUESTION
CONTAINS DETAILED PROVISIONS FOR HEARINGS AND JUDICIAL REVIEW.  FN24
THESE INCLUDE NOTICE, PROCEDURAL RULES BEFORE THE COMMISSION, RIGHT TO
COUNSEL, PRODUCTION OF EVIDENCE, SERVICE OF ORDERS, REHEARING, PROCESS
FOR PARTIES AND WITNESSES, DEPOSITIONS, RECORD OF PROCEEDINGS, REVIEW
OF ORDERS BY COURT AND APPEAL TO THE STATE COURT OF LAST RESORT.  THE
COMPULSORY AND PUNITIVE POWERS OF THE COMMISSION ARE EXERCISED THROUGH
JUDICIAL PROCESS.  WHEN THE ONLY GROUND FOR INTERFERING WITH THE STATE
PROCEDURE IS THE COST OF PREPARING FOR A HEARING, THERE IS NO OCCASION
FOR EQUITABLE INTERVENTION.  AFFIRMED. 

FN1  ACTS OF 1934, C. 145, AS AMENDED BY ACTS OF 1936, C. 92. 

FN2  "NOTICE OF INVESTIGATION AND ORDER TO SHOW CAUSE. 

"WHEREAS, AN EXAMINATION OF THE REPORTS OF SEVERAL WHOLESALE AND
RETAIL GAS UTILITIES SERVING IN THIS STATE, SHOW THAT THEY PURCHASE GAS
AT WHOLESALE RATES FROM THE PETROLEUM EXPLORATION, INC., LEXINGTON,
KENTUCKY; AND 

"WHEREAS, THE COMMISSION HAS FOUND UNDER SECTIONS 3952-1-12-13, AND
14 THAT THE PETROLEUM EXPLORATION, INC., IS AN OPERATING UTILITY IN THE
STATE OF KENTUCKY, AND SUBJECT TO THE JURISDICTION OF THIS COMMISSION;
AND 

"WHEREAS, IT IS APPARENT FROM A COMPARISON OF THESE RATES WITH THOSE
OF OTHER COMPANIES RENDERING A SIMILAR CLASS OF SERVICE IN KENTUCKY
THAT THESE RATES MAY BE EXCESSIVE; AND 

"WHEREAS, THESE WHOLESALE RATES BEAR A DEFINITE RELATIONSHIP TO THE
COST OF GAS TO CONSUMERS IN THE FOLLOWING TOWNS AND COMMUNITIES,
NAMELY, CORBIN, SOMERSET, BARBOURVILLE, MANCHESTER, BURNING SPRINGS,
RICHMOND, IRVINE-RAVENNA, LONDON, WINCHESTER, MT. STERLING, CYNTHIANA,
GEORGETOWN, LEXINGTON, PARIS, FRANKFORT, VERSAILLES, MIDWAY, AND NORTH
MIDDLETOWN; AND 

"WHEREAS, AUTHORITY TO INITIATE THIS INVESTIGATION IS VESTED IN THE
COMMISSION BY SECTIONS 3952-12-13, AND 14 OF THE KENTUCKY STATUTES, 

"NOW, THEREFORE, NOTICE IS HEREBY GIVEN, THAT THE COMMISSION HAS
ENTERED UPON AN INVESTIGATION OF THE ABOVE MATTERS AND THAT A PUBLIC
HEARING WILL BE HELD RELATIVE TO SAID MATTERS AT THE OFFICE OF THE
COMMISSION ON JUNE 29, 1937, AT WHICH TIME AND PLACE ANY PERSON
INTERESTED MAY APPEAR AND PRESENT SUCH EVIDENCE AS MAY BE PROPER IN THE
PREMISES; AND 

"WHEREAS, UNDER SUCH CIRCUMSTANCES THE COMMISSION FINDS THE BURDEN OF
PROOF UPON THE UTILITY TO SHOW THAT RATES AND CHARGES ARE FAIR AND
REASONABLE, AND NOT ARBITRARY, 

"NOW, THEREFORE, IT IS ORDERED: 

"1.  THAT OFFICIAL REPRESENTATIVES OF THE PETROLEUM EXPLORATION,
INC., APPEAR AT SUCH HEARING AND PRESENT EVIDENCE, IF ANY IT CAN, AS
WILL SHOW CONCLUSIVELY THE FAIRNESS AND REASONABLENESS OF ITS PRESENT
RATES AND CHARGES FOR GAS WHICH IT IS SELLING TO COMPANIES THAT ARE IN
TURN SELLING THE SAME GAS AT WHOLESALE OR RETAIL IN THIS STATE, OR
SUBMIT FOR THE APPROVAL OF THE COMMISSION SUCH CHANGES AND REVISIONS AS
WILL MAKE SUCH RATES OR CHARGES FAIR AND REASONABLE." 

(SECTIONS 2 AND 3 OMITTED HERE RELATE TO A REQUIREMENT FOR THE
SUBMISSION OF INFORMATION ON CONTRACTS BETWEEN APPELLANT AND OTHER
PARTIES.  EXISTENCE OF SUCH CONTRACTS WAS DENIED BY APPELLANT, AND NO
EVIDENCE TO ESTABLISH THEM WAS OFFERED.) 

"4.  THAT ALL BOOKS, ACCOUNTS, RECORDS, CORRESPONDENCE AND MEMORANDA
OF THE PETROLEUM EXPLORATION, INC., BE MADE AVAILABLE FOR EXAMINATION
BY THE COMMISSION'S REPRESENTATIVES. 

"NOTICE IS HEREBY GIVEN TO THE PETROLEUM EXPLORATION, INC., OF THE
ABOVE ORDER OF THE COMMISSION. 

"DATED AT FRANKFORT, KENTUCKY, THIS 29TH DAY OF MAY, 1937." 

FN3  GLENWOOD LIGHT CO. V. MUTUAL LIGHT CO., 239 U.S. 121, 125.  THE
PLEADINGS AND PROOF IN THE PRESENT CASE DO NOT IN TERMS RAISE THE
QUESTION OF THE VALUE OF THE RIGHT TO CONDUCT BUSINESS FREE OF
INTERFERENCE BY THE COMMISSION.  SCOTT V. DONALD, 165 U.S. 107; CF.
GLENWOOD LIGHT CO. V. MUTUAL LIGHT CO., SUPRA, 124. 

FN4  HEALY V. RATTA, 292 U.S. 263. 

FN5  WESTERN & ATLANTIC R. CO. V. RAILROAD COMMISSION, 261 U.S. 264. 

FN6  PACKARD V. BANTON, 264 U.S. 140, 142, 143. 

FN7  SEE TWIST V. PRAIRIE OIL & GAS CO., 274 U.S. 684, 690.  ALTHOUGH
THE OBJECTION DOES NOT GO TO THE JURISDICTION OF THE COURT AS A FEDERAL
COURT AND MAY BE WAIVED AND NOT CONSIDERED IF NOT TIMELY RAISED (REYNES
V. DUMONT, 130 U.S. 354, 395), IF IT BE OBVIOUS THAT THERE IS AN
ADEQUATE REMEDY AT LAW, THE COURT ACTS SUA SPONTE TO PRESERVE THE
COURTS OF EQUITY AS A FORUM FOR EXTRAORDINARY RELIEF, IN ACCORDANCE
WITH THE LEGISLATIVE DIRECTION OF SEC. 267 OF THE JUDICIAL CODE. 
PARKER V. WINNIPISEOGEE LAKE COTTON & WOOLEN CO., 2 BLACK 545, 550;
WRIGHT V. ELLISON, 1 WALL.  16, 22; OELRICHS V. SPAIN, 15 WALL.  211,
228; SINGER SEWING MACHINE CO. V. BENEDICT, 229 U.S. 481, 486;
HENRIETTA MILLS V. RUTHERFORD COUNTY, 281 U.S. 121, 123, 128.  CF.
FEDERAL TRADE COMMISSION V. CLAIRE FURNACE CO., 274 U.S. 160.  IT IS A
QUESTION OF "WHETHER THE CASE IS ONE FOR THE PECULIAR TYPE OF RELIEF"
GRANTED BY COURTS OF EQUITY.  DI GIOVANNI V. CAMDEN INS. ASSN., 296
U.S. 64, 69. 

FN8  DI GIOVANNI V. CAMDEN INS. ASSN., 296 U.S. 64, 69, AND CASES
CITED; CHICAGO, B. & Q.R. CO. V. OSBORNE, 265 U.S. 14, 16. 

FN9  POSTAL TEL. CABLE CO. V. ALABAMA, 155 U.S. 482, 487; MINNESOTA
V. NORTHERN SECURITIES CO., 194 U.S. 48, 63; ARKANSAS V. KANSAS & TEXAS
COAL CO., 183 U.S. 185, 188; CITY BANK CO. V. SCHNADER, 291 U.S. 24,
29. 

FN10  NATURAL GAS CO. V. SLATTERY, 302 U.S. 300, 306; ARKANSAS
LOUISIANA GAS CO. V. DEPARTMENT OF PUBLIC UTILITIES, ANTE, P. 61. 

FN11  DOWS V. CHICAGO, 11 WALL.  108; CRUICKSHANK V. BIDWELL, 176
U.S. 73, 81; MCCHORD V. LOUISVILLE & NASHVILLE R. CO., 183 U.S. 483,
495; SHELTON V. PLATT, 139 U.S. 591, 596; BOISE ARTESIAN WATER CO. V.
BOISE CITY, 213 U.S. 276, 281. 

FN12  SEE IRREPARABLE INJURY IN CONSTITUTIONAL CASES, 46 YALE LAW
JOURNAL 255(1936). 

FN13  DI GIOVANNI V. CAMDEN INS. ASSN., 296 U.S. 64, 70. 

FN14  EX PARTE YOUNG, 209 U.S. 123, 165; TERRACE V. THOMPSON, 263
U.S. 197, 215, 216; PACKARD V. BANTON, 264 U.S. 140, 143. 

FN15  SECS. 9 AND 10 OF THE ACT OF SEPTEMBER 26, 1914, C. 311, 38
STAT. 722, 15 U.S.C. SECS. 49, 50. 

FN16  CF. DALTON ADDING MACHINE CO. V. STATE CORPORATION COMM'N, 236
U.S. 699. 

FN17  KY. STAT. ANN. SEC. 3952-61 PROVIDES:  "PENALTIES.  - EVERY
OFFICER, AGENT OR EMPLOYEE OF ANY UTILITY AS ENUMERATED IN SECTION 1
HEREOF, OR OTHER PERSON WHO SHALL WILLFULLY VIOLATE ANY PROVISIONS OF
THIS ACT, OR WHO PROCURES, AIDS OR ABETS ANY VIOLATION OF THIS ACT BY
ANY SUCH UTILITY SHALL BE GUILTY OF A MISDEMEANOR AND UPON CONVICTION
THEREOF SHALL BE FINED NOT MORE THAN ONE THOUSAND ($1,000.00) DOLLARS,
OR BE CONFINED IN JAIL NOT MORE THAN SIX (6) MONTHS, OR BOTH; AND IF
ANY SUCH UTILITY SHALL BE A PRIVATE CORPORATION AND SHALL VIOLATE ANY
OF THE PROVISIONS OF THIS ACT, OR SHALL DO ANY ACT HEREIN PROHIBITED,
OR SHALL FAIL AND REFUSE TO PERFORM ANY DUTY IMPOSED UPON IT UNDER THIS
ACT FOR WHICH NO PENALTY HAS BEEN PROVIDED BY LAW, OR WHO SHALL FAIL,
NEGLECT OR REFUSE TO OBEY ANY LAWFUL REQUIREMENT OR ORDER MADE BY THE
COMMISSION, FOR EVERY SUCH VIOLATION, FAILURE OR REFUSAL SUCH UTILITY
SHALL FORFEIT AND PAY INTO THE TREASURY A SUM NOT LESS THAN TWENTY-FIVE
($25.00) DOLLARS, NOR MORE THAN ONE THOUSAND ($1,000.00) DOLLARS, FOR
EACH SUCH OFFENSE, SAID SUM OR SUMS TO BE PAID TO THE TREASURER AND
CREDITED TO THE GENERAL FUND.  IN CONSTRUING AND ENFORCING THE
PROVISIONS OF THIS SECTION THE ACT, OMISSION OR FAILURE OF ANY OFFICER,
AGENT OR OTHER PERSON ACTING FOR OR EMPLOYED BY ANY UTILITY ACTING
WITHIN THE SCOPE OF HIS EMPLOYMENT SHALL IN EVERY CASE BE DEEMED TO BE
THE ACT, OMISSION OR FAILURE OF SUCH UTILITY."  THERE IS ALSO PROVISION
FOR PROCEEDINGS BY MANDAMUS OR INJUNCTION TO COMPEL OBEDIENCE TO THE
ORDERS OF THE COMMISSION.  KY. STAT. ANN. SEC. 3952-13. 

THE MINORITY OPINION BELOW CONSTRUED THIS AS FOLLOWS:  "WHEN THE
VIOLATOR IS AN INDIVIDUAL, THE PENALTIES FOR FAILURE TO COMPLY WITH THE
ORDERS OF THE PUBLIC SERVICE COMMISSION ARE NOT MORE THAN $1,000, OR
CONFINEMENT IN JAIL FOR NOT MORE THAN SIX MONTHS, OR BOTH, AND IF A
CORPORATION, NOT LESS THAN $25 OR MORE THAN $1,000 FOR EACH VIOLATION,
THE ENFORCEMENT THEREOF TO BE BY THE FRANKLIN CIRCUIT COURT OF THE
COMMONWEALTH OF KENTUCKY."  21 F.SUPP.  254, AT 259. 

THE APPELLANT ARGUES IN THIS COURT THAT FAILURE TO PRODUCE THE
EVIDENCE MAY SUBJECT IT TO A FINE AND ITS OFFICERS AND AGENTS TO
CRIMINAL PENALTIES.  NEITHER THE MAJORITY BELOW NOR THE COMMISSION IN
THIS COURT EXPRESSES A CONTRARY VIEW. 

FN18  KY. STAT. ANN. SEC. 3952-14. 

FN19  CF. LAWRENCE V. ST. LOUIS-S.F. RY. CO., 274 U.S. 588, 592. 

FN20  BRADLEY LUMBER CO. V. LABOR BOARD, 84 F.(2D) 97, 100(C.C.A.
5). 

WHETHER EXPENSE, IN THIS INSTANCE, MAY BE AVOIDED BY A CHALLENGE OF
THE INTERLOCUTORY ORDERS OF THE COMMISSION ON THE PLEA OF APPELLANT TO
THE JURISDICTION (SEE KY. STAT. ANN. SEC. 3952-44), IS NOT WITHIN OUR
PROVINCE TO DECIDE. 

FN21  THE SUGGESTION THAT AN ADMINISTRATIVE AGENCY BE ENJOINED FROM
FURTHER, AND EXPENSIVE, PROCEEDINGS AFTER ITS ALLEGEDLY ERRONEOUS
DETERMINATION OF JURISDICTION WAS CONSIDERED AND REJECTED IN CHAMBER OF
COMMERCE V. FEDERAL TRADE COMMISSION, 280 FED. 45, 48-49(C.C.A. 8);
PITTSBURGH & W. VA. RY. CO. V. INTERSTATE COMMERCE COMM'N, 52 APP. D.C.
40; 280 FED. 1014, 1015-6; PARAMINO LUMBER CO. V. MARSHALL, 18 F.SUPP. 
645, 647(D. WASH.).  COMPARE STATE EX REL. CARRAU V. SUPERIOR COURT, 30
WASH. 700; 71 P. 648; EDWARD HINES YELLOW PINE TRUSTEES V. KNOX, 144
MISS.  560, 572-573; 108 SO. 907. 

FN22  GILCHRIST V. INTERBOROUGH CO., 279 U.S. 159, 207; PENNSYLVANIA
V. WILLIAMS, 294 U.S. 176, 185; MATTHEWS V. RODGERS, 284 U.S. 521, 525;
CF. HARRISONVILLE V. DICKEY CLAY CO., 289 U.S. 334, 338. 

FN23  HAWKS V. HAMILL, 288 U.S. 52, 61.    FN24  KY. STAT. ANN. SECS.
3952-33 TO -51 INCLUSIVE. 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 

MR. JUSTICE STONE CONCURS, EXCEPT THAT HE EXPRESSES NO OPINION ON THE
APPLICABILITY OF THE JOHNSON ACT. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












MORGAN V. UNITED STATES, 304 U.S. 1 


NO. 581.  ARGUED MARCH 10, 11, 1938.  - DECIDED APRIL 25, 1938.  -
PETITION FOR REHEARING DENIED MAY 31, 1938.  - 23 F.SUPP.  380,
REVERSED. 


1.  AN ORDER OF THE SECRETARY OF AGRICULTURE FIXING THE MAXIMUM RATES
TO BE CHARGED BY MARKET AGENCIES (COMMISSION MEN) AT STOCKYARDS HELD
VOID FOR FAILURE TO ALLOW THE "FULL HEARING" BEFORE THE SECRETARY
REQUIRED BY THE PACKERS AND STOCKYARDS ACT.  MORGAN V. UNITED STATES,
298 U.S. 468.  P. 13. 

2.  IN ADMINISTRATIVE PROCEEDINGS OF A QUASI-JUDICIAL CHARACTER, THE
LIBERTY AND PROPERTY OF THE CITIZEN MUST BE PROTECTED BY THE
RUDIMENTARY REQUIREMENTS OF FAIR PLAY.  THESE DEMAND A FAIR AND OPEN
HEARING.  P. 14. 

3.  IN REQUIRING A "FULL HEARING," THE PACKERS AND STOCKYARDS ACT HAS
REGARD TO JUDICIAL STANDARDS, - NOT IN ANY TECHNICAL SENSE, BUT WITH
RESPECT TO THOSE FUNDAMENTAL REQUIREMENTS OF FAIRNESS WHICH ARE OF THE
ESSENCE OF DUE PROCESS IN A PROCEEDING OF A JUDICIAL NATURE.  THOSE
REQUIREMENTS RELATE NOT ONLY TO THE TAKING AND CONSIDERATION OF
EVIDENCE BUT ALSO TO THE CONCLUDING, AS WELL AS TO THE BEGINNING AND
INTERMEDIATE, STEPS IN THE PROCEDURE.  P. 19. 

4.  THE PROCEEDING WAS BEGUN BY A GENERAL NOTICE OF INQUIRY INTO THE
REASONABLENESS OF THE RATES OF MARKET AGENCIES AT THE KANSAS CITY
STOCKYARDS.  THOUSANDS OF PAGES OF TESTIMONY WERE TAKEN BY AN EXAMINER
AND NUMEROUS COMPLICATED EXHIBITS WERE INTRODUCED, BEARING UPON ALL
PHASES OF THE BROAD SUBJECT OF THE BUSINESSES IN QUESTION.  APPELLANTS'
REQUEST THAT THE EXAMINER PREPARE A TENTATIVE REPORT, TO BE SUBMITTED
AS A BASIS FOR EXCEPTIONS AND ARGUMENT, WAS REFUSED.  ORAL ARGUMENT,
BEFORE AN ASSISTANT SECRETARY, WAS GENERAL AND SKETCHY AND DID NOT
REVEAL IN ANY APPROPRIATE MANNER THE GOVERNMENT'S CLAIMS.  THE
GOVERNMENT SUBMITTED NO BRIEF AND FURNISHED NO STATEMENT OF ITS
CONTENTIONS.  NUMEROUS AND ELABORATE FINDINGS WERE PREPARED BY
SUBORDINATES WHO HAD CONDUCTED THE PROCEEDINGS FOR THE GOVERNMENT, AND
WERE SUBMITTED TO THE SECRETARY, WHO ACCEPTED THEM, WITH CERTAIN RATE
ALTERATIONS.  NO OPPORTUNITY WAS AFFORDED THE APPELLANTS TO EXAMINE THE
FINDINGS UNTIL THEY WERE SERVED WITH THE ORDER FIXING RATES WHICH THEY
CLAIM TO BE CONFISCATORY.  A REHEARING WAS REFUSED BY THE SECRETARY. 
THE SECRETARY DID NOT READ THE TESTIMONY, BUT EXAMINED IT SOMEWHAT TO
GET ITS DRIFT; HE DID NOT HEAR THE ORAL ARGUMENT BUT READ A TRANSCRIPT
OF IT AND THE APPELLANTS' BRIEFS, AND CONFERRED EX PARTE CONCERNING THE
FINDINGS WITH THE SUBORDINATES WHO PREPARED THEM.  HELD: 

(1)  THE RIGHT TO A "FULL HEARING" EMBRACES NOT ONLY THE RIGHT TO
PRESENT EVIDENCE BUT ALSO A REASONABLE OPPORTUNITY TO KNOW THE CLAIMS
OF THE OPPOSING PARTY AND TO MEET THEM.  THE RIGHT TO SUBMIT ARGUMENT
IMPLIES THAT OPPORTUNITY; OTHERWISE THE RIGHT MAY BE BUT A BARREN ONE. 
THOSE WHO ARE BROUGHT INTO CONTEST WITH THE GOVERNMENT IN A QUASI
JUDICIAL PROCEEDING AIMED AT THE CONTROL OF THEIR ACTIVITIES ARE
ENTITLED TO BE FAIRLY ADVISED OF WHAT THE GOVERNMENT PROPOSES AND TO BE
HEARD UPON ITS PROPOSALS BEFORE IT ISSUES ITS FINAL COMMAND.  P. 18. 

(2)  NO SUCH REASONABLE OPPORTUNITY WAS ACCORDED IN THIS CASE.  P.
19. 

(3)  IN ALL SUBSTANTIAL ASPECTS, THE PROCEEDING WAS AN ADVERSARY ONE
A PROSECUTION BY THE GOVERNMENT OF THE OWNERS OF THE MARKET AGENCIES
THREATENING THE EXISTENCE OF THE AGENCIES AND THE OWNERS' MEANS OF
LIVELIHOOD.  P. 20. 

(4)  AN EARLIER ORDER CONTAINING FINDINGS OF FACTS AND FIXING A
SCHEDULE OF RATES, WHICH WAS SET ASIDE BECAUSE OF CHANGES IN ECONOMIC
CONDITIONS, COULD NOT AVAIL TO REMEDY THE DEFECTS IN THE CONDUCT OF THE
LATTER PROCEEDING HERE IN QUESTION.  P. 21. 

(5)  THE ACTION OF THE SECRETARY IN ACCEPTING AND MAKING AS HIS OWN
THE FINDINGS WHICH HAD BEEN PREPARED BY THE ACTIVE PROSECUTORS FOR THE
GOVERNMENT, AFTER AN EX PARTE DISCUSSION WITH THEM AND WITHOUT
ACCORDING ANY REASONABLE OPPORTUNITY TO THE RESPONDENTS IN THE
PROCEEDING TO KNOW THE CLAIMS THUS PRESENTED AND TO CONTEST THEM, WAS
MORE THAN AN IRREGULARITY IN PROCEDURE; IT WAS A VITAL DEFECT.  P. 21. 

5.  A PETITION FOR REHEARING BASED UPON THE GROUNDS OF INCONSISTENCY
OF THE DECISION ON THIS APPEAL WITH RULINGS ON THE EARLIER APPEAL, 298
U.S. 468, AND UPON THE GROUND OF SURPRISE - IS DENIED.  P. 23. 

6.  QUESTIONS AS TO THE DISPOSITION OF MONEYS IMPOUNDED IN THE
DISTRICT COURT REPRESENTING CHARGES FOR MARKET-AGENCY SERVICES PAID IN
EXCESS OF THE RATES FIXED BY THE VOID ORDER, ARE FOR THAT COURT TO
DECIDE.  P. 26. 

MORGAN ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MISSOURI. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, CONSTITUTED OF THREE
JUDGES, WHICH DISMISSED THE BILLS IN FIFTY SUITS, CONSOLIDATED FOR
HEARING, CHALLENGING THE VALIDITY OF MAXIMUM RATES FIXED BY THE
SECRETARY OF AGRICULTURE FOR MARKET AGENCIES AT THE KANSAS CITY STOCK
YARDS.  A FORMER APPEAL IS REPORTED IN 298 U.S. 468.  THE PRESENT
REPORT INCLUDES AN OPINION DELIVERED MAY 31, 1938, DENYING A
REHEARING.  SUMMARIES OF THE ARGUMENTS ON THE PROCEDURAL QUESTIONS ARE
EXTRACTED FROM THE MAIN BRIEFS USED ON THE HEARING. 

IT IS NOT NECESSARY, IN ORDER TO MEET THE REQUIREMENTS OF A "FULL
HEARING," THAT THE SECRETARY, IN PERSON, SHOULD HEAR ALL OF THE
EVIDENCE OR THAT HE SHOULD READ IT ALL.  ON THE OTHER HAND, THE
REQUIREMENTS OF A "FULL HEARING" ARE NOT MET IF, AS TESTIFIED TO BY THE
SECRETARY IN THIS CASE, THE ORDER MERELY REPRESENTS HIS "INDEPENDENT
CONCLUSION AS BASED UPON THE FINDINGS" OF HIS SUBORDINATES, OR HIS "OWN
INDEPENDENT REACTIONS TO THE FINDINGS OF" SUCH SUBORDINATES.  IT IS NOT
ENOUGH THAT HE HAS EXERCISED AN INDEPENDENT JUDGMENT OF HIS OWN
PREDICATED UPON FINDINGS OF FACT MADE BY OTHERS.  NOR THAT HE HAS
SATISFIED HIMSELF, AS AN EXECUTIVE MIGHT, AFTER MAKING SOME INQUIRIES
OF HIS SUBORDINATES, THAT HE IS WILLING TO ADOPT THEIR FINDINGS.  HE
IS, AS STATED BY THIS COURT, "THE TRIER OF THE FACTS" AND AS SUCH
REQUIRED TO WEIGH THE EVIDENCE UPON WHICH THE FINDINGS DEPEND, AND UPON
WHICH, IN TURN, HIS CONCLUSIONS AND ULTIMATE DETERMINATIONS ARE BASED. 
THIS DUTY MAY NOT BE DELEGATED TO OR PERFORMED BY OTHERS. 

IT IS TRUE THAT THE "EVIDENCE  ...  TAKEN MAY BE SIFTED AND ANALYZED
BY COMPETENT SUBORDINATES," 298 U.S. 481, BUT THIS CLEARLY MEANS THAT
THE SIFTING AND ANALYSIS MUST BE OF THE EVIDENCE AS A WHOLE UPON ANY
CONTROVERTED ISSUE OF FACT OR IN RESPECT OF WHICH ANY ULTIMATE FINDINGS
OF FACT MUST BE BASED.  IT MAY NOT BE A ONE-SIDED ANALYSIS.  IF VARIANT
OR CONTRARY INFERENCES MAY BE DRAWN FROM THE EVIDENCE, THE SUBORDINATES
MAY NOT CHOOSE BETWEEN THEM BUT MUST FAIRLY PRESENT BOTH SIDES OF THE
EVIDENCE, SO THAT THE AUTHORIZED TRIBUNAL MAY MAKE HIS CHOICE.  IF AN
ULTIMATE OR EVIDENTIARY FINDING OF FACT, CONTROVERSIAL IN CHARACTER,
REQUIRES FOR ITS DETERMINATION CONSIDERATION OF EVIDENCE RELATING TO
DIFFERENT BUT RELATED SUBJECTS, WITHOUT THE WEIGHING OF ALL OF WHICH NO
ULTIMATE OR EVIDENTIARY FINDING MAY BE MADE, THEN SUCH ANALYSIS MUST
FAIRLY SET FORTH THESE SEVERAL DESCRIPTIONS OF EVIDENCE AND THEIR
RELATION TO THE POSSIBLE ULTIMATE OR EVIDENTIARY INFERENCES PRESENTED. 
TO WHAT EXTENT THE SECRETARY MAY RELY UPON SUCH ANALYSES WITHOUT
EXAMINATION OF THE RECORD HIMSELF IN RESPECT OF CONTROVERTED QUESTIONS,
IT IS UNNECESSARY TO DISCUSS.  THIS IS SO BECAUSE IT PLAINLY APPEARS
FROM THE RECORD AS A WHOLE THAT NO SUCH ANALYSIS OF THE EVIDENCE WAS
MADE AND SUBMITTED TO HIM BY ANY SUBORDINATE. 

THE LAW IS NOT CONCERNED WITH THE MECHANICS EMPLOYED.  WHAT IT DOES
REQUIRE IS THAT THE FINDINGS OF FACT SHALL BE THOSE OF THE SECRETARY
HIMSELF, MADE ONLY AFTER A WEIGHING AND APPRAISAL OF THE EVIDENCE,
HOWEVER THAT EVIDENCE MAY BE SUBMITTED TO HIM FOR CONSIDERATION. 

IN LEAVING THE FINDINGS OF FACT TO HIS SUBORDINATES, THE SECRETARY
PROCEEDED UPON THE ERRONEOUS ASSUMPTION THAT THE DELEGATION OF THE
LEGISLATIVE POWER TO FIX RATES WAS TO THE DEPARTMENT OF AGRICULTURE
RATHER THAN TO THE SECRETARY IN PERSON. 

THE EVIDENCE AS TO THE MANNER IN WHICH THE FINDINGS, SUBMITTED TO THE
SECRETARY AND ACCEPTED BY HIM, WERE PREPARED, DISCLOSES THE ABSENCE OF
ANY QUASI-JUDICIAL WEIGHING OR APPRAISAL OF THE EVIDENCE BY THOSE WHO
PREPARED THEM.  THE RECORD DISCLOSES THAT NEITHER THE EVIDENCE NOR THE
ARGUMENT WAS THEREAFTER WEIGHED OR APPRAISED BY THE SECRETARY. 

THE FINDINGS PREPARED BY THE SECRETARY'S SUBORDINATES DO NOT
CONSTITUTE SUCH A "SIFTING AND ANALYZING" OF THE EVIDENCE AS TO ABSOLVE
THE SECRETARY FROM WEIGHING AND APPRAISING THE EVIDENCE ITSELF. 

THE SECRETARY DID NOT WEIGH AND APPRAISE THE EVIDENCE CONCERNING
SALESMANSHIP PERFORMANCE, THE FINDINGS CONCERNING WHICH ARE BASED ON
THE FLIMSIEST KIND OF EVIDENCE AND ARE THE MOST IMPORTANT OF ALL. 

THE SECRETARY ACCEPTED WITHOUT CHANGE FINDINGS MADE BY HIS
SUBORDINATES IN RESPECT OF SALES PERFORMANCE, APPARENTLY UNDER THE
MISAPPREHENSION THAT THEY WERE SUPPORTED BY ACTUAL PERFORMANCE, WITHOUT
ANY EXAMINATION OF THE EVIDENCE IN RESPECT THEREOF, WHICH, IF MADE,
WOULD HAVE DISCLOSED THE CONTRARY. 

THE SECRETARY DID NOT WEIGH AND APPRAISE THE EVIDENCE UPON WHICH THE
ORDER'S SO-CALLED REASONABLE COST ASSIGNED TO BUSINESS-GETTING AND
MAINTAINING WAS PREDICATED. 

THE SECRETARY DID NOT WEIGH AND APPRAISE THE EVIDENCE BEARING UPON
THE REASONABLE COST OF YARDING OR OFFICE SALARIES, BUT ACCEPTED THE
FINDINGS SUBMITTED UPON A MISUNDERSTANDING OF THEIR IMPORT. 

NEITHER THE FRAGMENTARY ORAL STATEMENTS OF HIS SUBORDINATES AS TO
WHAT SOME OF THE EVIDENCE WAS NOR THE SECRETARY'S HIT OR MISS
"INVESTIGATION INTO" THE RECORD IS AN ACCEPTABLE SUBSTITUTE FOR HIS
WEIGHING AND APPRAISING THE EVIDENCE AS A WHOLE. 

THE ALTERING BY THE SECRETARY OF A FEW RATES IN THE TENTATIVE ORDER
IN NO WAY TENDS TO PROVE HE WEIGHED AND APPRAISED THE EVIDENCE.  HAD HE
FILLED IN A WHOLLY BLANK SCHEDULE HE WOULD BE NO BETTER OFF. 

THE INEXORABLE REQUIREMENT OF A FAIR TRIAL BEFORE AN IMPARTIAL
TRIBUNAL, WHICH SHALL RENDER JUDGMENT UPON THE EVIDENCE, IS NOT MET
WHERE, WITHOUT ANY ALLEGATION THAT ANY RATES ARE UNREASONABLE, AND
WITHOUT ANY DISCLOSURE OF THEIR CONTENTIONS AS TO THE ULTIMATE FACTS
PROVED OR THE PRINCIPLES INTENDED TO BE APPLIED TO THEM, THE FINDINGS
AND ORDER TO BE MADE ARE PREPARED BY OPPOSING COUNSEL AND, WITHOUT THE
KNOWLEDGE OF THE APPELLANTS OR THEIR COUNSEL, SUBMITTED TO THE TRIER OF
THE FACTS WHO, AFTER PRIVATE UNRECORDED CONFERENCES WITH OPPOSING
COUNSEL, ISSUES AN ORDER IN ACCORDANCE THEREWITH, WITHOUT HIMSELF
WEIGHING OR APPRAISING THE EVIDENCE UPON CONTROVERTED ISSUES. 

THERE WAS NO ALLEGATION OR SUGGESTION IN THE ORIGINAL ORDER OF
INQUIRY THAT ANY OF APPELLANTS' RATES WERE UNJUST, OR UNREASONABLE OR
DISCRIMINATORY.  THE "ORDER GRANTING REHEARING" WAS NOT MORE EXPLICIT
IN THESE RESPECTS. 

COUNSEL FOR THE GOVERNMENT, IN HIS ARGUMENT, PRESENTED NO ISSUES OF
FACT.  WHERE HE DID REFER TO INDIVIDUAL AGENCIES HE PAID THEM THE
HIGHEST POSSIBLE COMPLIMENT AS TO EFFICIENCY OF OPERATION.  HE STATED
THAT IN HIS OPINION THE RATES UNDER INVESTIGATION WERE NOT
DISCRIMINATORY AND THAT NONE OF THE APPELLANTS WERE MAKING TOO MUCH
MONEY UNDER THE EXISTING RATES. 

NOTHING OCCURRED IN THE COURSE OF THE ORAL ARGUMENT TO FORECAST THE
FACT THAT THE ASSISTANT SECRETARY WAS NOT TO PASS UPON THE ISSUES BUT
WAS TO RETIRE FROM FURTHER CONSIDERATION OF THE CASE.  NO STATEMENT
INDICATED THAT A TENTATIVE REPORT WAS TO BE PREPARED BY THE ATTORNEYS
FOR THE GOVERNMENT AND A GOVERNMENT ECONOMIST, AN IMPORTANT WITNESS FOR
THE GOVERNMENT.  IT WAS NOT SUGGESTED THAT THE PROPOSED FINDINGS AND
ORDER, WITHOUT HAVING BEEN FIRST SERVED UPON COUNSEL FOR APPELLANTS,
WOULD BE PRESENTED TO THE SECRETARY PERSONALLY AND DISCUSSED WITH HIM
BY THE ATTORNEYS FOR THE GOVERNMENT IN UNRECORDED CONFERENCES, OUT OF
THE PRESENCE OF APPELLANTS' COUNSEL.  APPELLANTS' COUNSEL, WITHOUT THE
BENEFIT OF A COMPLAINT CONTAINING SPECIFIC ALLEGATIONS AS TO THE
UNREASONABLENESS OF ANY RATES, HAVING BEFORE HIM IN THE EVIDENCE A COST
STUDY PREPARED AFTER EXTENSIVE AUDITS BY GOVERNMENT ACCOUNTANTS SHOWING
EXPERIENCED COSTS TO BE IN EXCESS OF RECEIPTS UNDER EXISTING RATES, AND
WITHOUT ANY KNOWLEDGE OF THE CONTENTS OF THE TENTATIVE REPORT, PREPARED
A BRIEF WHICH WAS FILED WITH THE ASSISTANT SECRETARY.  NO BRIEFS WERE
FILED OR SERVED BY THE GOVERNMENT. 

THE PROPOSED FINDINGS AND ORDER SO PREPARED BY THE ATTORNEYS FOR THE
GOVERNMENT, TOGETHER WITH CERTAIN MEMORANDA PREPARED IN PART BY THE
ECONOMIST WHO WAS A GOVERNMENT WITNESS IN THE CASE, WAS PRESENTED TO
THE SECRETARY.  THE SECRETARY, ACCORDING TO HIS TESTIMONY, AFTER
EXAMINING THE RECORD CASUALLY, TOOK THE ORDER, THE BRIEFS, AND
TRANSCRIPT OF ORAL ARGUMENT HOME WITH HIM.  HE STATES THAT HE READ THE
TENTATIVE ORDER AND PART, AT LEAST, OF THE BRIEFS.  AFTER DISCUSSING
THE MATTER WITH COUNSEL FOR THE GOVERNMENT IN PRIVATE UNRECORDED
CONFERENCES, HE CHANGED, TO AN UNIMPORTANT EXTENT, A FEW FIGURES
EXPRESSING INDIVIDUAL RATES, AND SIGNED THE ORDER AS PROPOSED,
OTHERWISE UNCHANGED, ON JUNE 14, 1933. 

THIS HE DID WITHOUT WEIGHING OR APPRAISING THE EVIDENCE ON
CONTROVERTED ISSUES OF FACT AND WITHOUT FAMILIARIZING HIMSELF WITH ANY
PART THEREOF EXCEPT AS COMMUNICATED TO HIM IN EX PARTE ORAL
CONVERSATIONS WITH HIS SUBORDINATES INCLUDING THE ATTORNEY PROSECUTING
THE CASE.  NO RECORD WAS KEPT OF THESE CONVERSATIONS, BUT IT APPEARS
THEY WERE FRAGMENTARY AND UNACCOMPANIED BY ANY WEIGHING AND APPRAISING
OF THE EVIDENCE BY THE SECRETARY.  AND THIS ALTHOUGH THE FINDINGS
ACCEPTED ARE DIRECTLY CONTRARY TO STATEMENTS IN APPELLANTS'
ADMINISTRATIVE BRIEFS.  SUCH A COURSE OF ADMINISTRATIVE PROCEDURE
CONSTITUTES NEITHER A FULL HEARING NOR DUE PROCESS OF LAW. 

THE MORE EXTENSIVE THE EMPLOYMENT OF THE IMPLEMENT OF THE
ADMINISTRATIVE TRIBUNAL BECOMES - AND ITS USE IS DAILY BECOMING MORE
WIDESPREAD - AND THE MORE CREDIT WHICH IS GIVEN TO ITS DECISIONS, THE
MORE IMPORTANT IS IT THAT STRICT REGULARITY BE OBSERVED IN THE CONDUCT
OF ITS HEARINGS AND THAT ALL THE ELEMENTS OF A FULL AND FAIR HEARING
AND OF DUE PROCESS OF LAW BE ACCORDED.  SEE LORD CHIEF JUSTICE HEWART,
"THE NEW DESPOTISM," PP. 50-51. 

IT IS NOT CONTENDED BY APPELLANTS THAT IN CASES WHERE A FAIR AND
PROPER METHOD HAS BEEN ADOPTED FOR LIMITING THE ISSUES, WHETHER IT BE A
TENTATIVE REPORT OF THE EXAMINER OR OTHERWISE, THE TRIBUNAL PASSING
JUDGMENT MUST REVIEW OR APPRAISE ALL OF THE EVIDENCE RELATING TO
NONCONTROVERSIAL AS WELL AS CONTROVERSIAL ISSUES.  NOR IS IT CONTENDED
THAT IN ORDER THAT THERE BE A FULL HEARING, ORAL ARGUMENT OR ORAL
PRESENTATION IS ESSENTIAL IN EVERY INSTANCE - FOR BY OTHER METHODS THE
TRIER OF THE FACTS MAY BECOME SO ADEQUATELY INFORMED AS TO ENABLE
HIMSELF TO PROPERLY APPRAISE THE EVIDENCE.  NOR IS IT CONTENDED THAT
THE ORDER IS VOID SOLELY BY REASON OF THE FACT THAT THE ATTORNEYS FOR
THE PROSECUTION, ASSISTED BY A WITNESS FOR THE PROSECUTION, PREPARED
IT,  - FOR HAD SUCH AN ORDER, SO PREPARED, BEEN FOLLOWED BY
PRESENTATION OF IT TO COUNSEL FOR APPELLANTS WITH FULL OPPORTUNITY TO
REFUTE THE CONCLUSIONS EXPRESSED THEREIN BEFORE HIM WHOSE DUTY IT WAS
TO RESOLVE THE EVIDENCE INTO FINDINGS, THE REQUIREMENT OF A FAIR TRIAL
COULD BE MET IF THE SECRETARY WEIGHED AND APPRAISED ALL OF THE EVIDENCE
UPON THE FINDINGS QUESTIONED BY APPELLANTS' COUNSEL.  A COURT OR
ADMINISTRATIVE TRIBUNAL MAY FOR ITS CONVENIENCE REQUIRE SUBMISSION OF
ISSUES UPON WRITTEN STATEMENT - IF SUCH WRITTEN STATEMENTS ARE, UNDER
CONDITIONS FAIRLY PERMITTING REPLY, MADE KNOWN TO OPPOSING PARTIES. 
EVIDENCE MAY FOR THE ASSISTANCE OF THE ONE CHARGED WITH THE
RESPONSIBILITY OF DECISION BE FAIRLY ANALYZED BY IMPARTIAL AND
COMPETENT ASSISTANTS, UNBIASED BY PREVIOUS PARTISAN CONNECTION WITH THE
PROCEEDING.  WHERE, HOWEVER, ISSUES ARE NOT DEFINED AND LIMITED BY
MEANS AND METHODS FAIR TO ALL PERSONS AFFECTED OR TO BE AFFECTED, FAIR
ANALYSES OR SYNOPSES OF THE EVIDENCE ARE NOT PREPARED BY IMPARTIAL OR
COMPETENT ASSISTANTS, AND THE ONE DECIDING THE ISSUES DOES NOT
PERSONALLY REVIEW AND WEIGH AND APPRAISE THE EVIDENCE, A FULL HEARING
IS NOT HAD IN ACCORDANCE WITH STATUTORY AND CONSTITUTIONAL
REQUIREMENTS. 

ASSUMING THAT, AS CLAIMED, THE SECRETARY READ ORAL AND WRITTEN
ARGUMENT, NEVERTHELESS IT IS CLEAR THAT HE DID NOT JUDICIALLY WEIGH AND
APPRAISE THE SAME, SINCE HE ADMITTEDLY ADOPTED THE VITALLY IMPORTANT
INFERENCES DRAWN BY HIS SUBORDINATES FROM THE EVIDENCE, AND REJECTED
THE WIDELY DIFFERING INFERENCES ASSERTED BY APPELLANTS IN THEIR BRIEFS,
WITHOUT WEIGHING OR APPRAISING THE EVIDENCE UPON WHICH EITHER SET OF
INFERENCES WAS BASED. 

THE ORDER SHOULD BE SET ASIDE BECAUSE UNSUPPORTED BY ESSENTIAL
FINDINGS OF BASIC FACTS, BECAUSE THE FUNDAMENTAL FINDINGS OF FACT
THEREIN ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, BECAUSE BASED UPON
AN ERRONEOUS CONCEPTION OF THE LAW AND OF THE POWERS OF THE SECRETARY,
BECAUSE BASED UPON A DEPARTURE FROM RECOGNIZED AND ACCEPTED STANDARDS,
BOTH OF REASONABLENESS AND OF ADMINISTRATIVE PROCEDURE, AND BECAUSE
ARBITRARILY MADE. 

THE CONTENTION THAT THE DECISION OF A QUASI-JUDICIAL OFFICER, MADE
UPON A PROPER RECORD AFTER FULL HEARING OF ARGUMENT, MAY BE DECLARED TO
BE VOID ON THE GROUND THAT IT WAS INSUFFICIENTLY CONSIDERED IS WITHOUT
PRECEDENT.  IN ITS PRIOR DECISION, THIS COURT HELD THAT WHERE IT WAS
ALLEGED THAT THE SECRETARY HEARD NEITHER EVIDENCE NOR ARGUMENT A CASE
WAS MADE FOR JUDICIAL INVESTIGATION.  IT DID NOT HOLD THAT WHERE HE HAD
HEARD ARGUMENT, JUDICIAL INVESTIGATION MAY TEST THE ADEQUACY OF HIS
FURTHER CONSIDERATION OF THE CASE.  THE DETAILED FACTS OF THE
SECRETARY'S PHYSICAL EXAMINATION OF ARGUMENTS AND EVIDENCE AND THE
DETAILED MENTAL PROCESSES WHICH HE EMPLOYED IN REACHING HIS
DETERMINATION ARE NOT A PROPER SUBJECT FOR JUDICIAL INQUIRY. 
APPELLANTS' CONTENTION IS, IN ESSENCE, AN ENDEAVOR TO AVOID, BY A NOVEL
DOCTRINE OF JUDICIAL REVIEW, THE ESTABLISHED RULE THAT THE FINDINGS OF
A QUASI-JUDICIAL OFFICER, MADE AFTER HEARING OR READING FULL ARGUMENT
ON A PROPER RECORD SUBMITTED TO HIM, CAN BE ATTACKED ONLY BY SHOWING
THAT THE FINDINGS ARE IN FACT UNSUPPORTED BY THE EVIDENCE.    THE
QUESTION OF THE SCOPE OF THE ISSUE IS NOT OF CONTROLLING IMPORTANCE IN
THE PRESENT CASE.  SHOULD THIS COURT DECIDE THAT IT IS FREE TO LOOK
BEHIND THE FACT THAT THE SECRETARY READ AND CONSIDERED APPELLANTS'
ARGUMENTS, IT WILL FIND THAT THE EVIDENCE SHOWS THAT THE SECRETARY
FULLY COMPLIED WITH ANY PROCEDURAL STANDARD THAT MAY REASONABLY BE
IMPOSED. 

THE SECRETARY MADE HIS DECISION ON THE BASIS OF HIS OWN PERSONAL
CONSIDERATION AND APPRAISAL OF THE EVIDENCE AND ARGUMENT.  THE
TRANSCRIPT OF RECORD WAS IN HIS POSSESSION AND, WHILE HE DID NOT READ
IT CONSECUTIVELY OR IN FULL, HE CONSULTED IT WHEREVER IN HIS JUDGMENT
SUCH CONSULTATION WAS NECESSARY.  AS A GUIDE TO HIS EXAMINATION OF THE
RECORD HE STUDIED THE ARGUMENTS OF APPELLANTS DIRECTED TO THE EVIDENCE
AND COMPARED THEM WITH THE VOLUMINOUS FINDINGS OF FACT, WHICH
CONSTITUTED A SUMMARY AND ANALYSIS OF THE EVIDENCE.  HAVING READ AND
CONSIDERED THE TENTATIVE FINDINGS OF FACT AND THE ARGUMENTS OF
APPELLANTS, HE MADE AN INVESTIGATION INTO THE RECORD - ASSISTED BY
CONSULTATION WITH MEMBERS OF THE DEPARTMENT - FOR THE PURPOSE OF
CONSIDERING AND APPRAISING THE EVIDENCE UPON WHICH THE FINDINGS WERE
MADE.  UNCONTRADICTED TESTIMONY ESTABLISHES THAT THE SECRETARY, IN THE
EXERCISE OF HIS INDEPENDENT JUDGMENT, ALTERED THREE OF THE MOST
IMPORTANT ITEMS IN THE TENTATIVE SCHEDULE OF RATES.  WITH RESPECT TO
ALL THE NUMEROUS QUESTIONS RAISED BY APPELLANTS, PERSUASIVE EVIDENCE
EXISTS TO SHOW INDEPENDENT INQUIRY AND THE EXERCISE OF INDEPENDENT
JUDGMENT BY THE SECRETARY.  BY ASSERTING THAT THE SECRETARY DID NOT
GIVE THEM A FAIR HEARING, APPELLANTS HAVE ASSUMED THE BURDEN OF PROVING
BY CLEAR AND CONVINCING EVIDENCE THAT THE SECRETARY DID NOT CONSIDER
THEIR ARGUMENTS OR THE EVIDENCE TO WHICH THOSE ARGUMENTS RELATED. 

APPELLANTS RENEW THEIR OBJECTION THAT THEY WERE NOT GIVEN AN
OPPORTUNITY TO FILE EXCEPTIONS TO AN EXAMINER'S REPORT OR TO TENTATIVE
FINDINGS OF FACT, AND TO PRESENT ARGUMENT IN SUPPORT OF THOSE
EXCEPTIONS.  THIS COURT HAS ALREADY PASSED ON THIS ARGUMENT.  (CITING
MORGAN V. UNITED STATES, 298 U.S. 468, 478.)  THE PRACTICE WHICH THE
COURT DESCRIBED AS DESIRABLE HAS NOW BEEN ESTABLISHED IN PROCEEDINGS
UNDER SEC. 307 OF THE ACT.  SEE ORDER OF SEPTEMBER 16, 1936, 1 FEDERAL
REGISTER 1362.  IT REMAINS TRUE, HOWEVER, THAT THE FAILURE TO FOLLOW IT
IS NOT FATAL TO THE VALIDITY OF THE HEARING. 

APPELLANTS ALSO COMPLAIN THAT IN HIS ORAL ARGUMENT COUNSEL FOR THE
DEPARTMENT DID NOT APPRISE THEM OF THE ISSUES WHICH THEY MIGHT BE
EXPECTED TO MEET, AND THEY REFER TO STATEMENTS HE MADE WHICH WERE IN
AGREEMENT WITH THEIR CONTENTIONS.  IT IS NOT TO BE SUPPOSED THAT THE
APPELLANTS WERE PREJUDICED BY SUCH FRIENDLY STATEMENTS IN ORAL ARGUMENT
OR THAT APPELLANTS' COUNSEL NEEDED THE ASSISTANCE OF GOVERNMENT
COUNSEL, OR OF AN EXAMINER'S REPORT, OR OF TENTATIVE FINDINGS OF FACT,
TO DETERMINE WHAT THE IMPORTANT ISSUES IN THE PROCEEDING WERE.  IT IS
COMMON KNOWLEDGE THAT OFTEN IN ORDINARY LITIGATION THE ARGUMENT
ADDRESSED BY COUNSEL TO THE COURT IS MADE BEFORE THE SUBMISSION OF
PROPOSED FINDINGS OF FACT OR CONCLUSIONS OF LAW, AND THAT THE ARGUMENT
OF OPPOSING COUNSEL DOES NOT IN EVERY CASE DISCLOSE WITH CLARITY THE
ISSUES ON WHICH THE CASE IS TO BE DECIDED.  SUCH CIRCUMSTANCES WHEN
THEY EXIST CAN HARDLY BE SAID TO AMOUNT TO A DENIAL OF A FULL HEARING. 

FURTHERMORE, IT SHOULD BE NOTED THAT, AT THE TIME OF THE ORAL ARGUMENT
AND WHEN PETITIONERS FILED THEIR SUPPLEMENTAL BRIEF WITH THE SECRETARY,
THEY HAD BEFORE THEM AN ORDER, WHICH HAD BEEN SIGNED ON MAY 18, 1932,
BY THE SECRETARY OF AGRICULTURE, CONTAINING FINDINGS OF FACT AND FIXING
A SCHEDULE OF RATES.  AT THE TIME THE REHEARING WAS GRANTED, THE
SECRETARY HAD SET THIS ORDER ASIDE.  THE RECORD UPON WHICH THAT ORDER
HAD BEEN MADE WAS A PART OF THE RECORD BEFORE THE SECRETARY AT THE TIME
OF THE REHEARING, AND THE ORDER SERVED TO INFORM THE APPELLANTS OF THE
NATURE OF THE ISSUES INVOLVED.  THAT IT DID SO INFORM THEM IS SHOWN BY
THE FACT THAT MUCH OF APPELLANTS' SUPPLEMENTAL BRIEF WAS DEVOTED TO A
DISCUSSION OF THIS ORDER, AND THAT IN THE COURSE OF THAT DISCUSSION
THEY ADVANCED MOST OF THE CONTENTIONS WHICH THEY MAKE WITH RESPECT TO
THE ORDER NOW UNDER ATTACK. 

APPELLANTS ATTEMPT TO DISTINGUISH THIS PRESENT SITUATION FROM ONE IN
WHICH A COURT ADOPTS FINDINGS PREPARED BY COUNSEL ON THE GROUND THAT A
COURT AFFORDS OPPOSING COUNSEL AN OPPORTUNITY TO SUBMIT FINDINGS OF HIS
OWN OR TO EXCEPT TO THE FINDINGS WHICH ARE ADOPTED.  THERE IS NO FORCE
IN THIS DISTINCTION.  ALTHOUGH THE APPELLANTS WERE NOT GIVEN AN
OPPORTUNITY TO EXCEPT TO THE TENTATIVE FINDINGS OF FACT, THEY HAD AN
UNRESTRICTED OPPORTUNITY TO SUBMIT FINDINGS OF THEIR OWN TO THE
SECRETARY OF AGRICULTURE WHICH HE COULD HAVE CONSIDERED.  THEY DID NOT
TAKE ADVANTAGE OF THAT OPPORTUNITY; BUT THAT IS NOT A CIRCUMSTANCE
WHICH CAN BE HELD AGAINST THE SECRETARY OF AGRICULTURE.  THERE IS NO
LOGIC IN APPELLANTS' SUGGESTION THAT THE ADOPTION OF FINDINGS IS DONE
INDEPENDENTLY IF OPPOSING COUNSEL HAS A CHANCE TO CRITICIZE THOSE
FINDINGS, BUT MUST BE PRESUMED NOT TO HAVE BEEN DONE INDEPENDENTLY IF
THE OPPORTUNITY TO CRITICIZE IS NOT AFFORDED. 

THE ORDER OF THE SECRETARY IS BASED UPON CORRECT PRINCIPLES OF LAW
AND IS SUPPORTED BY SUBSTANTIAL EVIDENCE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE VALIDITY OF AN ORDER OF THE
SECRETARY OF AGRICULTURE FIXING MAXIMUM RATES TO BE CHARGED BY MARKET
AGENCIES AT THE KANSAS CITY STOCK YARDS.  PACKERS AND STOCKYARDS ACT,
1921, 42 STAT. 159; 7 U.S.C. 181-229.  THE DISTRICT COURT OF THREE
JUDGES DISMISSED THE BILLS OF COMPLAINT IN FIFTY SUITS (CONSOLIDATED
FOR HEARING) CHALLENGING THE VALIDITY OF THE RATES, AND THE PLAINTIFFS
BRING THIS DIRECT APPEAL.  7 U.S.C. 217; 28 U.S.C. 47. 

THE CASE COMES HERE FOR THE SECOND TIME.  ON THE FORMER APPEAL WE
MET, AT THE THRESHOLD OF THE CONTROVERSY, THE CONTENTION THAT THE
PLAINTIFFS HAD NOT BEEN ACCORDED THE HEARING WHICH THE STATUTE MADE A
PREREQUISITE TO A VALID ORDER.  THE DISTRICT COURT HAD STRUCK FROM
PLAINTIFFS' BILLS THE ALLEGATIONS THAT THE SECRETARY HAD MADE THE ORDER
WITHOUT HAVING HEARD OR READ THE EVIDENCE AND WITHOUT HAVING HEARD OR
CONSIDERED THE ARGUMENTS SUBMITTED, AND THAT HIS SOLE INFORMATION WITH
RESPECT TO THE PROCEEDING WAS DERIVED FROM CONSULTATION WITH EMPLOYEES
IN THE DEPARTMENT OF AGRICULTURE.  WE HELD THAT IT WAS ERROR TO STRIKE
THESE ALLEGATIONS, THAT THE DEFENDANT SHOULD BE REQUIRED TO ANSWER
THEM, AND THAT THE QUESTION WHETHER PLAINTIFFS HAD A PROPER HEARING
SHOULD BE DETERMINED.  MORGAN V. UNITED STATES, 298 U.S. 468. 

AFTER THE REMAND, THE BILLS WERE AMENDED AND INTERROGATORIES WERE
DIRECTED TO THE SECRETARY WHICH HE ANSWERED.  THE COURT RECEIVED THE
EVIDENCE WHICH HAD BEEN INTRODUCED AT ITS PREVIOUS HEARING, TOGETHER
WITH ADDITIONAL TESTIMONY BEARING UPON THE NATURE OF THE HEARING
ACCORDED BY THE SECRETARY.  THIS EVIDENCE EMBRACED THE TESTIMONY OF THE
SECRETARY AND OF SEVERAL OF HIS ASSISTANTS.  THE DISTRICT COURT
RENDERED AN OPINION, WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW,
HOLDING THAT THE HEARING BEFORE THE SECRETARY WAS ADEQUATE AND, ON THE
MERITS, THAT HIS ORDER WAS LAWFUL.  ON THIS APPEAL, PLAINTIFFS AGAIN
CONTEND (1) THAT THE SECRETARY'S ORDER WAS MADE WITHOUT THE HEARING
REQUIRED BY THE STATUTE AND (2) THAT THE ORDER WAS ARBITRARY AND
UNSUPPORTED BY SUBSTANTIAL EVIDENCE. 

THE FIRST QUESTION GOES TO THE VERY FOUNDATION OF THE ACTION OF
ADMINISTRATIVE AGENCIES ENTRUSTED BY THE CONGRESS WITH BROAD CONTROL
OVER ACTIVITIES WHICH IN THEIR DETAIL CANNOT BE DEALT WITH DIRECTLY BY
THE LEGISLATURE.  THE VAST EXPANSION OF THIS FIELD OF ADMINISTRATIVE
REGULATION IN RESPONSE TO THE PRESSURE OF SOCIAL NEEDS IS MADE POSSIBLE
UNDER OUR SYSTEM BY ADHERENCE TO THE BASIC PRINCIPLES THAT THE
LEGISLATURE SHALL APPROPRIATELY DETERMINE THE STANDARDS OF
ADMINISTRATIVE ACTION AND THAT IN ADMINISTRATIVE PROCEEDINGS OF A QUASI
JUDICIAL CHARACTER THE LIBERTY AND PROPERTY OF THE CITIZEN SHALL BE
PROTECTED BY THE RUDIMENTARY REQUIREMENTS OF FAIR PLAY.  THESE DEMAND
"A FAIR AND OPEN HEARING,"  - ESSENTIAL ALIKE TO THE LEGAL VALIDITY OF
THE ADMINISTRATIVE REGULATION AND TO THE MAINTENANCE OF PUBLIC
CONFIDENCE IN THE VALUE AND SOUNDNESS OF THIS IMPORTANT GOVERNMENTAL
PROCESS.  SUCH A HEARING HAS BEEN DESCRIBED AS AN "INEXORABLE
SAFEGUARD."  ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38,
73; OHIO BELL TELEPHONE CO. V. PUBLIC UTILITIES COMMISSION, 301 U.S.
292, 304, 305; RAILROAD COMMISSION OF CALIFORNIA V. PACIFIC GAS &
ELECTRIC CO., 302 U.S. 388, 393; MORGAN V. UNITED STATES, SUPRA.  AND
IN EQUIPPING THE SECRETARY OF AGRICULTURE WITH EXTRAORDINARY POWERS
UNDER THE PACKERS AND STOCKYARDS ACT, THE CONGRESS EXPLICITLY
RECOGNIZED AND EMPHASIZED THIS REQUIREMENT BY MAKING HIS ACTION DEPEND
UPON A "FULL HEARING."  SEC. 310.  FN1 

IN THE RECORD NOW BEFORE US THE CONTROLLING FACTS STAND OUT CLEARLY. 
THE ORIGINAL ADMINISTRATIVE PROCEEDING WAS BEGUN ON APRIL 7, 1930, WHEN
THE SECRETARY OF AGRICULTURE ISSUED AN ORDER OF INQUIRY AND NOTICE OF
HEARING WITH RESPECT TO THE REASONABLENESS OF THE CHARGES OF APPELLANTS
FOR STOCKYARDS SERVICES AT KANSAS CITY.  THE TAKING OF EVIDENCE BEFORE
AN EXAMINER OF THE DEPARTMENT WAS BEGUN ON DECEMBER 3, 1930, AND
CONTINUED UNTIL FEBRUARY 10, 1931.  THE GOVERNMENT AND APPELLANTS WERE
REPRESENTED BY COUNSEL AND VOLUMINOUS TESTIMONY AND EXHIBITS WERE
INTRODUCED.  IN MARCH, 1931, ORAL ARGUMENT WAS HAD BEFORE THE ACTING
SECRETARY OF AGRICULTURE AND APPELLANTS SUBMITTED A BRIEF.  ON MAY 18,
1932, THE SECRETARY ISSUED HIS FINDINGS AND AN ORDER PRESCRIBING
MAXIMUM RATES.  IN VIEW OF CHANGED ECONOMIC CONDITIONS, THE SECRETARY
VACATED THAT ORDER AND GRANTED A REHEARING.  THAT WAS BEGUN ON OCTOBER
6, 1932, AND THE TAKING OF EVIDENCE WAS CONCLUDED ON NOVEMBER 16,
1932.  THE EVIDENCE RECEIVED AT THE FIRST HEARING WAS RE-SUBMITTED AND
THIS WAS SUPPLEMENTED BY ADDITIONAL TESTIMONY AND EXHIBITS.  ON MARCH
24, 1933, ORAL ARGUMENT WAS HAD BEFORE REXFORD G. TUGWELL AS ACTING
SECRETARY. 

IT APPEARS THAT THERE WERE ABOUT 10,000 PAGES OF TRANSCRIPT OF ORAL
EVIDENCE AND OVER 1,000 PAGES OF STATISTICAL EXHIBITS.  THE ORAL
ARGUMENT WAS GENERAL AND SKETCHY.  APPELLANTS SUBMITTED THE BRIEF WHICH
THEY HAD PRESENTED AFTER THE FIRST ADMINISTRATIVE HEARING AND A
SUPPLEMENTAL BRIEF DEALING WITH THE EVIDENCE INTRODUCED UPON THE
REHEARING.  NO BRIEF WAS AT ANY TIME SUPPLIED BY THE GOVERNMENT.  APART
FROM WHAT WAS SAID ON ITS BEHALF IN THE ORAL ARGUMENT, THE GOVERNMENT
FORMULATED NO ISSUES AND FURNISHED APPELLANTS NO STATEMENT OR SUMMARY
OF ITS CONTENTIONS AND NO PROPOSED FINDINGS.  APPELLANTS' REQUEST THAT
THE EXAMINER PREPARE A TENTATIVE REPORT, TO BE SUBMITTED AS A BASIS FOR
EXCEPTIONS AND ARGUMENT, WAS REFUSED. 

FINDINGS WERE PREPARED IN THE BUREAU OF ANIMAL INDUSTRY, DEPARTMENT
OF AGRICULTURE, WHOSE REPRESENTATIVES HAD CONDUCTED THE PROCEEDINGS FOR
THE GOVERNMENT, AND WERE SUBMITTED TO THE SECRETARY, WHO SIGNED THEM,
WITH A FEW CHANGES IN THE RATES, WHEN HIS ORDER WAS MADE ON JUNE 14,
1933.  THESE FINDINGS, 180 IN NUMBER, WERE ELABORATE.  THEY DEALT WITH
THE PRACTICES AND FACILITIES AT THE KANSAS CITY LIVESTOCK MARKET, THE
CHARACTER OF APPELLANTS' BUSINESS AND SERVICES, THEIR RATES AND THE
VOLUME OF THEIR TRANSACTIONS, THEIR GROSS REVENUES, THEIR METHODS IN
GETTING AND MAINTAINING BUSINESS, THEIR JOINT ACTIVITIES, THE ECONOMIC
CHANGES SINCE THE YEAR 1929, THE PRINCIPLES WHICH GOVERNED THE
DETERMINATION OF REASONABLE COMMISSION RATES, THE CLASSIFICATION OF
COST ITEMS, THE REASONABLE UNIT COSTS PLUS A REASONABLE AMOUNT OF
PROFITS TO BE COVERED INTO REASONABLE COMMISSION RATES, THE REASONABLE
AMOUNTS TO BE INCLUDED FOR SALESMANSHIP, YARDING SALARIES AND EXPENSES,
OFFICE SALARIES AND EXPENSES, BUSINESS GETTING AND MAINTAINING
EXPENSES, ADMINISTRATIVE AND GENERAL EXPENSES, INSURANCE, INTEREST ON
CAPITAL, AND PROFITS, TOGETHER WITH SUMMARY AND THE ESTABLISHMENT OF
THE RATE STRUCTURE.  UPON THE BASIS OF THE REASONABLE COSTS AS THUS
DETERMINED, THE SECRETARY FOUND THAT APPELLANTS' SCHEDULES OF RATES
WERE UNREASONABLE AND UNJUSTLY DISCRIMINATORY AND FIXED THE MAXIMUM
SCHEDULES OF THE JUST AND REASONABLE RATES THEREAFTER TO BE CHARGED. 

NO OPPORTUNITY WAS AFFORDED TO APPELLANTS FOR THE EXAMINATION OF THE
FINDINGS THUS PREPARED IN THE BUREAU OF ANIMAL INDUSTRY UNTIL THEY WERE
SERVED WITH THE ORDER.  APPELLANTS SOUGHT A REHEARING BY THE SECRETARY
BUT THEIR APPLICATION WAS DENIED ON JULY 6, 1933, AND THESE SUITS
FOLLOWED. 

THE PART TAKEN BY THE SECRETARY HIMSELF IN THE DEPARTMENTAL
PROCEEDINGS IS SHOWN BY HIS FULL AND CANDID TESTIMONY.  THE EVIDENCE
HAD BEEN RECEIVED BEFORE HE TOOK OFFICE.  HE DID NOT HEAR THE ORAL
ARGUMENT.  THE BULKY RECORD WAS PLACED UPON HIS DESK AND HE DIPPED INTO
IT FROM TIME TO TIME TO GET ITS DRIFT.  HE DECIDED THAT PROBABLY THE
ESSENCE OF THE EVIDENCE WAS CONTAINED IN APPELLANTS' BRIEFS.  THESE,
TOGETHER WITH THE TRANSCRIPT OF THE ORAL ARGUMENT, HE TOOK HOME WITH
HIM AND READ.  HE HAD SEVERAL CONFERENCES WITH THE SOLICITOR OF THE
DEPARTMENT AND WITH THE OFFICIALS IN THE BUREAU OF ANIMAL INDUSTRY AND
DISCUSSED THE PROPOSED FINDINGS.  HE TESTIFIED THAT HE CONSIDERED THE
EVIDENCE BEFORE SIGNING THE ORDER.  THE SUBSTANCE OF HIS ACTION IS
STATED IN HIS ANSWER TO THE QUESTION WHETHER THE ORDER REPRESENTED HIS
INDEPENDENT CONCLUSION, AS FOLLOWS:    "MY ANSWER TO THE QUESTION WOULD
BE THAT THAT VERY DEFINITELY WAS MY INDEPENDENT CONCLUSION AS BASED ON
THE FINDINGS OF THE MEN IN THE BUREAU OF ANIMAL INDUSTRY.  I WOULD SAY,
I WILL TRY TO PUT IT AS ACCURATELY AS POSSIBLE, THAT IT REPRESENTED MY
OWN INDEPENDENT REACTIONS TO THE FINDINGS OF THE MEN IN THE BUREAU OF
ANIMAL INDUSTRY." 

SAVE FOR CERTAIN RATE ALTERATIONS, HE "ACCEPTED THE FINDINGS." 

IN THE LIGHT OF THIS TESTIMONY THERE IS NO OCCASION TO DISCUSS THE
EXTENT TO WHICH THE SECRETARY EXAMINED THE EVIDENCE, AND WE AGREE WITH
THE GOVERNMENT'S CONTENTION THAT IT WAS NOT THE FUNCTION OF THE COURT
TO PROBE THE MENTAL PROCESSES OF THE SECRETARY IN REACHING HIS
CONCLUSIONS IF HE GAVE THE HEARING WHICH THE LAW REQUIRED.  THE
SECRETARY READ THE SUMMARY PRESENTED BY APPELLANTS' BRIEFS AND HE
CONFERRED WITH HIS SUBORDINATES WHO HAD SIFTED AND ANALYZED THE
EVIDENCE.  WE ASSUME THAT THE SECRETARY SUFFICIENTLY UNDERSTOOD ITS
PURPORT.  BUT A "FULL HEARING" - A FAIR AND OPEN HEARING - REQUIRES
MORE THAN THAT.  THE RIGHT TO A HEARING EMBRACES NOT ONLY THE RIGHT TO
PRESENT EVIDENCE BUT ALSO A REASONABLE OPPORTUNITY TO KNOW THE CLAIMS
OF THE OPPOSING PARTY AND TO MEET THEM.  THE RIGHT TO SUBMIT ARGUMENT
IMPLIES THAT OPPORTUNITY; OTHERWISE THE RIGHT MAY BE BUT A BARREN ONE. 
THOSE WHO ARE BROUGHT INTO CONTEST WITH THE GOVERNMENT IN A QUASI
JUDICIAL PROCEEDING AIMED AT THE CONTROL OF THEIR ACTIVITIES ARE
ENTITLED TO BE FAIRLY ADVISED OF WHAT THE GOVERNMENT PROPOSES AND TO BE
HEARD UPON ITS PROPOSALS BEFORE IT ISSUES ITS FINAL COMMAND. 

NO SUCH REASONABLE OPPORTUNITY WAS ACCORDED APPELLANTS.  THE
ADMINISTRATIVE PROCEEDING WAS INITIATED BY A NOTICE OF INQUIRY INTO THE
REASONABLENESS OF APPELLANTS' RATES.  NO SPECIFIC COMPLAINT WAS
FORMULATED AND, IN A PROCEEDING THUS BEGUN BY THE SECRETARY ON HIS OWN
INITIATIVE, NONE WAS REQUIRED.  THUS, IN THE ABSENCE OF ANY DEFINITE
COMPLAINT, AND IN A SWEEPING INVESTIGATION, THOUSANDS OF PAGES OF
TESTIMONY WERE TAKEN BY THE EXAMINER AND NUMEROUS COMPLICATED EXHIBITS
WERE INTRODUCED BEARING UPON ALL PHASES OF THE BROAD SUBJECT OF THE
CONDUCT OF THE MARKET AGENCIES.  IN THE ABSENCE OF ANY REPORT BY THE
EXAMINER OR ANY FINDINGS PROPOSED BY THE GOVERNMENT, AND THUS WITHOUT
ANY CONCRETE STATEMENT OF THE GOVERNMENT'S CLAIMS, THE PARTIES
APPROACHED THE ORAL ARGUMENT. 

NOR DID THE ORAL ARGUMENT REVEAL THESE CLAIMS IN ANY APPROPRIATE
MANNER.  THE DISCUSSION BY COUNSEL FOR THE GOVERNMENT WAS "VERY
GENERAL," AS HE SAID, IN ORDER NOT TO TAKE UP "TOO MUCH TIME."  IT
DEALT WITH GENERALITIES BOTH AS TO PRINCIPLES AND PROCEDURE.  COUNSEL
FOR APPELLANTS THEN DISCUSSED THE EVIDENCE FROM HIS STANDPOINT.  THE
GOVERNMENT'S COUNSEL CLOSED BRIEFLY, WITH A FEW ADDITIONAL AND GENERAL
OBSERVATIONS.  THE ORAL ARGUMENT WAS OF THE SORT WHICH MIGHT SERVE AS A
PREFACE TO A DISCUSSION OF DEFINITE POINTS IN A BRIEF, BUT THE
GOVERNMENT DID NOT SUBMIT A BRIEF.  AND THE APPELLANTS HAD NO FURTHER
INFORMATION OF THE GOVERNMENT'S CONCRETE CLAIMS UNTIL THEY WERE SERVED
WITH THE SECRETARY'S ORDER. 

CONGRESS, IN REQUIRING A "FULL HEARING," HAD REGARD TO JUDICIAL
STANDARDS,  - NOT IN ANY TECHNICAL SENSE BUT WITH RESPECT TO THOSE
FUNDAMENTAL REQUIREMENTS OF FAIRNESS WHICH ARE OF THE ESSENCE OF DUE
PROCESS IN A PROCEEDING OF A JUDICIAL NATURE.  IF IN AN EQUITY CAUSE, A
SPECIAL MASTER OR THE TRIAL JUDGE PERMITTED THE PLAINTIFF'S ATTORNEY TO
FORMULATE THE FINDINGS UPON THE EVIDENCE, CONFERRED EX PARTE WITH THE
PLAINTIFF'S ATTORNEY REGARDING THEM, AND THEN ADOPTED HIS PROPOSALS
WITHOUT AFFORDING AN OPPORTUNITY TO HIS OPPONENT TO KNOW THEIR CONTENTS
AND PRESENT OBJECTIONS, THERE WOULD BE NO HESITATION IN SETTING ASIDE
THE REPORT OR DECREE AS HAVING BEEN MADE WITHOUT A FAIR HEARING.  THE
REQUIREMENTS OF FAIRNESS ARE NOT EXHAUSTED IN THE TAKING OR
CONSIDERATION OF EVIDENCE BUT EXTEND TO THE CONCLUDING PARTS OF THE
PROCEDURE AS WELL AS TO THE BEGINNING AND INTERMEDIATE STEPS. 

THE ANSWER THAT THE PROCEEDING BEFORE THE SECRETARY WAS NOT OF AN
ADVERSARY CHARACTER, AS IT WAS NOT UPON COMPLAINT BUT WAS INITIATED AS
A GENERAL INQUIRY, IS FUTILE.  IT HAS REGARD TO THE MERE FORM OF THE
PROCEEDING AND IGNORES REALITIES.  IN ALL SUBSTANTIAL RESPECTS, THE
GOVERNMENT ACTING THROUGH THE BUREAU OF ANIMAL INDUSTRY OF THE
DEPARTMENT WAS PROSECUTING THE PROCEEDING AGAINST THE OWNERS OF THE
MARKET AGENCIES.  THE PROCEEDING HAD ALL THE ESSENTIAL ELEMENTS OF
CONTESTED LITIGATION, WITH THE GOVERNMENT AND ITS COUNSEL ON THE ONE
SIDE AND THE APPELLANTS AND THEIR COUNSEL ON THE OTHER.  IT IS IDLE TO
SAY THAT THIS WAS NOT A PROCEEDING IN REALITY AGAINST THE APPELLANTS
WHEN THE VERY EXISTENCE OF THEIR AGENCIES WAS PUT IN JEOPARDY.  UPON
THE RATES FOR THEIR SERVICES THE OWNERS DEPENDED FOR THEIR LIVELIHOOD,
AND THE PROCEEDING ATTACKED THEM AT A VITAL SPOT.  THIS IS WELL SHOWN
BY THE FACT THAT, ON THE MERITS, APPELLANTS ARE HERE CONTENDING THAT
UNDER THE SECRETARY'S ORDER MANY OF THESE AGENCIES, ALTHOUGH NOT FOUND
TO BE INEFFICIENT OR WASTEFUL, WILL BE LEFT WITH DEFICITS INSTEAD OF
REASONABLE COMPENSATION FOR THEIR SERVICES AND WILL BE COMPELLED TO GO
OUT OF BUSINESS.  AND TO THIS THE GOVERNMENT RESPONDS THAT IF AS A
RESULT OF THE PRESCRIBED RATES SOME AGENCIES MAY BE UNABLE TO CONTINUE,
BECAUSE THROUGH EXISTING COMPETITION THERE ARE TOO MANY, THAT FACT WILL
NOT INVALIDATE THE ORDER.  WHILE WE ARE NOT NOW DEALING WITH THE
MERITS, THE BREADTH OF THE SECRETARY'S DISCRETION UNDER OUR RULINGS
APPLICABLE TO SUCH A PROCEEDING (TAGG BROS. & MOORHEAD V. UNITED
STATES, 280 U.S. 420; ACKER V. UNITED STATES, 298 U.S. 426) PLACES IN A
STRONG LIGHT THE NECESSITY OF MAINTAINING THE ESSENTIALS OF A FULL AND
FAIR HEARING, WITH THE RIGHT OF THE APPELLANTS TO HAVE A REASONABLE
OPPORTUNITY TO KNOW THE CLAIMS ADVANCED AGAINST THEM AS SHOWN BY THE
FINDINGS PROPOSED BY THE BUREAU OF ANIMAL INDUSTRY. 

EQUALLY UNAVAILING IS THE CONTENTION THAT THE FORMER SECRETARY OF
AGRICULTURE HAD MADE AN ORDER IN MAY, 1932, CONTAINING FINDINGS OF FACT
AND FIXING A SCHEDULE OF RATES, OF WHICH APPELLANTS WERE APPRISED. 
BECAUSE OF CHANGES IN ECONOMIC CONDITIONS, THE SECRETARY HIMSELF HAD
SET ASIDE THAT ORDER AND DIRECTED A REHEARING.  THIS NECESSARILY
INVOLVED, AS THE SECRETARY FOUND, A CONSIDERATION "OF CHANGES BOTH
GENERAL AND PARTICULAR" WHICH HAD "OCCURRED SINCE THE YEAR 1929" AND
BROUGHT UP ALL THE QUESTIONS PERTINENT TO THE NEW SITUATION TO WHICH
THE ADDITIONAL EVIDENCE UPON THE REHEARING WAS DIRECTED.  THE FORMER
FINDINGS AND ORDER WERE NO LONGER IN EFFECT AND IT IS WITH THE CONDUCT
OF THE LATER PROCEEDING THAT WE ARE CONCERNED. 

THE GOVERNMENT ADVERTS TO AN OBSERVATION IN OUR FORMER OPINION THAT,
WHILE IT WAS GOOD PRACTICE - WHICH WE APPROVED - TO HAVE THE EXAMINER,
RECEIVING THE EVIDENCE IN SUCH A CASE, PREPARE A REPORT AS A BASIS FOR
EXCEPTIONS AND ARGUMENT, WE COULD NOT SAY THAT THAT PARTICULAR TYPE OF
PROCEDURE WAS ESSENTIAL TO THE VALIDITY OF THE PROCEEDING.  THAT IS
TRUE, FOR, AS WE SAID, WHAT THE STATUTE REQUIRES "RELATES TO SUBSTANCE
AND NOT FORM."  CONCEIVABLY, THE SECRETARY, IN A CASE THE NARROW LIMITS
OF WHICH MADE SUCH A PROCEDURE PRACTICABLE, MIGHT HIMSELF HEAR THE
EVIDENCE AND THE CONTENTIONS OF BOTH PARTIES AND MAKE HIS FINDINGS UPON
THE SPOT.  AGAIN, THE EVIDENCE BEING IN, THE SECRETARY MIGHT RECEIVE
THE PROPOSED FINDINGS OF BOTH PARTIES, EACH BEING NOTIFIED OF THE
PROPOSALS OF THE OTHER, HEAR ARGUMENT THEREON AND MAKE HIS OWN
FINDINGS.  BUT WHAT WOULD NOT BE ESSENTIAL TO THE ADEQUACY OF THE
HEARING IF THE SECRETARY HIMSELF MAKES THE FINDINGS IS NOT A CRITERION
FOR A CASE IN WHICH THE SECRETARY ACCEPTS AND MAKES AS HIS OWN THE
FINDINGS WHICH HAVE BEEN PREPARED BY THE ACTIVE PROSECUTORS FOR THE
GOVERNMENT, AFTER AN EX PARTE DISCUSSION WITH THEM AND WITHOUT
ACCORDING ANY REASONABLE OPPORTUNITY TO THE RESPONDENTS IN THE
PROCEEDING TO KNOW THE CLAIMS THUS PRESENTED AND TO CONTEST THEM.  THAT
IS MORE THAN AN IRREGULARITY IN PRACTICE; IT IS A VITAL DEFECT. 

THE MAINTENANCE OF PROPER STANDARDS ON THE PART OF ADMINISTRATIVE
AGENCIES IN THE PERFORMANCE OF THEIR QUASI-JUDICIAL FUNCTIONS IS OF THE
HIGHEST IMPORTANCE AND IN NO WAY CRIPPLES OR EMBARRASSES THE EXERCISE
OF THEIR APPROPRIATE AUTHORITY.  ON THE CONTRARY, IT IS IN THEIR
MANIFEST INTEREST.  FOR, AS WE SAID AT THE OUTSET, IF THESE MULTIPLYING
AGENCIES DEEMED TO BE NECESSARY IN OUR COMPLEX SOCIETY ARE TO SERVE THE
PURPOSES FOR WHICH THEY ARE CREATED AND ENDOWED WITH VAST POWERS, THEY
MUST ACCREDIT THEMSELVES BY ACTING IN ACCORDANCE WITH THE CHERISHED
JUDICIAL TRADITION EMBODYING THE BASIC CONCEPTS OF FAIR PLAY. 

AS THE HEARING WAS FATALLY DEFECTIVE, THE ORDER OF THE SECRETARY WAS
INVALID.  IN THIS VIEW, WE EXPRESS NO OPINION UPON THE MERITS.  THE
DECREE OF THE DISTRICT COURT IS REVERSED. 

FN1  SECTION 310 OF THE PACKERS AND STOCKYARDS ACT (42 STAT. 159,
166; 7 U.S.C. 211) PROVIDES: 

"SEC. 310.  WHENEVER AFTER FULL HEARING UPON A COMPLAINT MADE AS
PROVIDED IN SECTION 309, OR AFTER FULL HEARING UNDER AN ORDER FOR
INVESTIGATION AND HEARING MADE BY THE SECRETARY ON HIS OWN INITIATIVE,
EITHER IN EXTENSION OF ANY PENDING COMPLAINT OR WITHOUT ANY COMPLAINT
WHATEVER, THE SECRETARY IS OF THE OPINION THAT ANY RATE, CHARGE,
REGULATION, OR PRACTICE OF A STOCKYARD OWNER OR MARKET AGENCY, FOR OR
IN CONNECTION WITH THE FURNISHING OF STOCKYARD SERVICES, IS OR WILL BE
UNJUST, UNREASONABLE, OR DISCRIMINATORY, THE SECRETARY - 

"(A)  MAY DETERMINE AND PRESCRIBE WHAT WILL BE THE JUST AND
REASONABLE RATE OR CHARGE, OR RATES OR CHARGES, TO BE THEREAFTER
OBSERVED IN SUCH CASE, OR THE MAXIMUM OR MINIMUM, OR MAXIMUM AND
MINIMUM, TO BE CHARGED, AND WHAT REGULATION OR PRACTICE IS OR WILL BE
JUST, REASONABLE, AND NONDISCRIMINATORY TO BE THEREAFTER FOLLOWED;
..." 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE. 

A PETITION FOR REHEARING, FILED ON MAY 20, 1938, WAS DENIED ON MAY
31, 1938. 

PER CURIAM. 

THE SOLICITOR GENERAL MOVES FOR A REHEARING OF THIS CASE UPON TWO
GROUNDS: 

FIRST.  THE FIRST GROUND IS THAT THE COURT HAS REVERSED ITSELF; THAT
THE PRESENT DECISION IS "DIRECTLY CONTRARY TO THE LAW OF THE CASE" AS
ESTABLISHED BY THE COURT'S DECISION ON THE FORMER APPEAL, MORGAN V.
UNITED STATES, 298 U.S. 468; AND THAT "A PROCEDURAL OMISSION"
PREVIOUSLY HELD "TO BE OF NO SIGNIFICANCE" IS NOW REGARDED AS "FATALLY
DEFECTIVE." 

THESE ASSERTIONS ARE UNWARRANTED.  NOT ONLY ARE THE TWO DECISIONS
CONSISTENT, BUT THE RULE ANNOUNCED IN OUR FORMER OPINION WAS APPLIED
AND WAS DECISIVE OF THE PRESENT APPEAL.  AND THE GOVERNMENT IS IN NO
POSITION TO CLAIM SURPRISE.  THE QUESTION WHETHER THERE HAD BEEN A FAIR
HEARING IN THE PRESENT CASE, IN THE LIGHT OF THE SITUATION DISCLOSED BY
THE SECRETARY'S TESTIMONY AND THE OTHER EVIDENCE, WAS FULLY ARGUED AT
THE BAR.  APPELLANTS PRESENTED, BOTH ORALLY AND IN AN ELABORATE BRIEF,
WITH COPIOUS REFERENCES TO THE RECORD, THE CONTENTION WHICH WE
SUSTAINED. 

THE FIRST APPEAL WAS BROUGHT TO THIS COURT BECAUSE THE PLAINTIFFS HAD
BEEN DENIED AN OPPORTUNITY TO PROVE THAT THE SECRETARY OF AGRICULTURE
HAD FAILED TO GIVE THEM THE FULL HEARING WHICH THE STATUTE REQUIRED. 
THEIR ALLEGATIONS TO THAT EFFECT HAD BEEN STRUCK OUT BY THE DISTRICT
COURT.  8 F.SUPP.  766.  WE HELD ITS RULING TO BE ERRONEOUS AND THAT
THE QUESTION WHETHER THE PLAINTIFFS HAD A PROPER HEARING SHOULD BE
DETERMINED, SAYING: 

"BUT THERE MUST BE A HEARING IN A SUBSTANTIAL SENSE.  AND TO GIVE THE
SUBSTANCE OF A HEARING, WHICH IS FOR THE PURPOSE OF MAKING
DETERMINATIONS UPON EVIDENCE, THE OFFICER WHO MAKES THE DETERMINATIONS
MUST CONSIDER AND APPRAISE THE EVIDENCE WHICH JUSTIFIES THEM." 

THE CASE WAS THEN TRIED BY THE DISTRICT COURT UPON THAT ISSUE.  FROM
THE SECRETARY'S FRANK DISCLOSURE IT APPEARED THAT FINDINGS OF FACT
NECESSARY TO SUSTAIN THE ORDER HAD NOT BEEN MADE BY HIM UPON HIS OWN
CONSIDERATION OF THE EVIDENCE BUT AS STATED BELOW.  BECAUSE SUCH ACTION
FAILS TO SATISFY THE REQUIREMENT OF A FULL HEARING STATED IN OUR FIRST
OPINION AND QUOTED ABOVE, WE REVERSED THE JUDGMENT OF THE DISTRICT
COURT WHICH SUSTAINED THE ORDER. 

TESTIMONY OF THE SECRETARY AND HIS ASSOCIATES, DISCLOSED WHAT HAD
ACTUALLY OCCURRED.  IT APPEARED THAT THE ORAL ARGUMENT BEFORE THE
ASSISTANT SECRETARY HAD BEEN GENERAL AND SKETCHY; THAT, ASIDE FROM THE
ORAL ARGUMENT, WHICH DID NOT REVEAL THE CLAIMS OF THE GOVERNMENT IN ANY
APPROPRIATE MANNER, THE GOVERNMENT HAD SUBMITTED NO BRIEF AND NO
STATEMENT OF ITS CONTENTIONS HAD BEEN FURNISHED; THAT IN THIS SITUATION
FINDINGS HAD BEEN PREPARED IN THE BUREAU OF ANIMAL INDUSTRY, DEPARTMENT
OF AGRICULTURE, WHOSE REPRESENTATIVES HAD CONDUCTED THE PROCEEDINGS FOR
THE GOVERNMENT; THAT THESE FINDINGS, 180 IN NUMBER, WERE ELABORATE,
DEALING WITH ALL PHASES OF THE PRACTICES AND FACILITIES AT THE KANSAS
CITY LIVE-STOCK MARKET, THE SERVICES AND METHODS OF THE PLAINTIFFS, AND
THE COSTS AND PROFITS WHICH SHOULD BE ALLOWED THEM AS REASONABLE. 
THESE FINDINGS, PREPARED NOT BY THE SECRETARY BUT BY THOSE WHO HAD
PROSECUTED THE CASE FOR THE GOVERNMENT, WERE ADOPTED BY THE SECRETARY
WITH CERTAIN RATE ALTERATIONS.  NO OPPORTUNITY WAS AFFORDED TO THE
PLAINTIFFS FOR THE EXAMINATION OF THE FINDINGS THUS PREPARED UNTIL THEY
WERE SERVED WITH THE SECRETARY'S ORDER AND THEIR REQUEST FOR A
REHEARING WAS DENIED. 

THE STATEMENT MADE IN THE PETITION FOR REHEARING THAT THE PRESENT
DECISION IS CONTRARY TO THE LAW OF THE CASE AS DECLARED IN OUR FIRST
OPINION IS WHOLLY UNFOUNDED.  OUR DECISION WAS NOT RESTED UPON THE
ABSENCE OF AN EXAMINER'S REPORT.  SO FAR FROM DEPARTING FROM OUR FORMER
OPINION, OR FROM THE STATEMENT THAT THE MERE MATTER OF THE PRESENCE OR
ABSENCE OF AN EXAMINER'S REPORT WAS NOT ITSELF DETERMINATIVE, WE
REITERATED BOTH THAT STATEMENT AND THE PRINCIPLE UNDERLYING IT IN OUR
OPINION ON THE PRESENT APPEAL.  WE SAID:    "THOSE WHO ARE BROUGHT INTO
CONTEST WITH THE GOVERNMENT IN A QUASI-JUDICIAL PROCEEDING AIMED AT THE
CONTROL OF THEIR ACTIVITIES ARE ENTITLED TO BE FAIRLY ADVISED OF WHAT
THE GOVERNMENT PROPOSES AND TO BE HEARD UPON ITS PROPOSALS BEFORE IT
ISSUES ITS FINAL COMMAND. 

"NO SUCH REASONABLE OPPORTUNITY WAS ACCORDED APPELLANTS.  ... 

     .         .         .         .       . 

"THE GOVERNMENT ADVERTS TO AN OBSERVATION IN OUR FORMER OPINION THAT,
WHILE IT WAS GOOD PRACTICE - WHICH WE APPROVED - TO HAVE THE EXAMINER,
RECEIVING THE EVIDENCE IN SUCH A CASE, PREPARE A REPORT AS A BASIS FOR
EXCEPTIONS AND ARGUMENT, WE COULD NOT SAY THAT THAT PARTICULAR TYPE OF
PROCEDURE WAS ESSENTIAL TO THE VALIDITY OF THE PROCEEDING.  THAT IS
TRUE, FOR, AS WE SAID, WHAT THE STATUTE REQUIRES 'RELATES TO SUBSTANCE
AND NOT FORM.'  CONCEIVABLY THE SECRETARY, IN A CASE THE NARROW LIMITS
OF WHICH MADE SUCH A PROCEDURE PRACTICABLE, MIGHT HIMSELF HEAR THE
EVIDENCE AND THE CONTENTIONS OF BOTH PARTIES AND MAKE HIS FINDINGS UPON
THE SPOT.  AGAIN, THE EVIDENCE BEING IN, THE SECRETARY MIGHT RECEIVE
THE PROPOSED FINDINGS OF BOTH PARTIES, EACH BEING NOTIFIED OF THE
PROPOSALS OF THE OTHER, HEAR ARGUMENT THEREON AND MAKE HIS OWN
FINDINGS." 

AND, THEN, POINTING OUT THE DISTINCTION AND THE SERIOUS DEFECT IN THE
PROCEDURE IN THE INSTANT CASE, WE ADDED: 

"BUT WHAT WOULD NOT BE ESSENTIAL TO THE ADEQUACY OF THE HEARING IF
THE SECRETARY HIMSELF MAKES THE FINDINGS IS NOT A CRITERION FOR A CASE
IN WHICH THE SECRETARY ACCEPTS AND MAKES AS HIS OWN THE FINDINGS WHICH
HAVE BEEN PREPARED BY THE ACTIVE PROSECUTORS FOR THE GOVERNMENT, AFTER
AN EX PARTE DISCUSSION WITH THEM AND WITHOUT ACCORDING ANY REASONABLE
OPPORTUNITY TO THE RESPONDENTS IN THE PROCEEDING TO KNOW THE CLAIMS
THUS PRESENTED AND TO CONTEST THEM.  THAT IS MORE THAN AN IRREGULARITY
IN PRACTICE; IT IS A VITAL DEFECT." 

THE DISTINCTION WAS AGAIN BROUGHT OUT IN OUR RECENT DECISION IN THE
CASE OF NATIONAL LABOR RELATIONS BOARD V. MACKAY RADIO & TELEGRAPH CO.,
POST, P. 333, WHERE THE MERE ABSENCE OF AN EXAMINER'S REPORT WAS FOUND
NOT TO BE CONTROLLING, AS THE RECORD SHOWED THAT IN THAT CASE THE
CONTENTIONS OF THE PARTIES HAD BEEN CLEARLY DEFINED AND THAT THERE HAD
BEEN IN THE SUBSTANTIAL SENSE A FULL AND ADEQUATE HEARING. 

THE EFFORT TO ESTABLISH A CASE FOR REHEARING, EITHER BECAUSE OF AN
ASSERTED INCONSISTENCY IN OUR RULINGS OR BECAUSE OF LACK OF OPPORTUNITY
FOR FULL ARGUMENT, IS FUTILE. 

SECOND.  THE SECOND GROUND UPON WHICH A REHEARING IS SOUGHT IS THAT
THERE IS IMPOUNDED IN THE DISTRICT COURT A LARGE SUM REPRESENTING
CHARGES PAID IN EXCESS OF THE RATES FIXED BY THE SECRETARY.  THE
SOLICITOR GENERAL RAISES QUESTIONS BOTH OF SUBSTANCE AND PROCEDURE AS
TO THE DISPOSITION OF THESE MONEYS.  THESE QUESTIONS ARE APPROPRIATELY
FOR THE DISTRICT COURT AND THEY ARE NOT PROPERLY BEFORE US UPON THE
PRESENT RECORD.  WE HAVE RULED THAT THE ORDER OF THE SECRETARY IS
INVALID BECAUSE THE REQUIRED HEARING WAS NOT GIVEN.  WE REMAND THE CASE
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH OUR
OPINION.  WHAT FURTHER PROCEEDINGS THE SECRETARY MAY SEE FIT TO TAKE IN
THE LIGHT OF OUR DECISION, OR WHAT DETERMINATIONS MAY BE MADE BY THE
DISTRICT COURT IN RELATION TO ANY SUCH PROCEEDINGS, ARE NOT MATTERS
WHICH WE SHOULD ATTEMPT TO FORECAST OR HYPOTHETICALLY TO DECIDE. 

THE PETITION FOR REHEARING IS DENIED. 

MR. JUSTICE BLACK DISSENTS. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OF THIS PETITION. 
..END :






UNITED STATES V. BEKINS, 304 U.S. 27 


NOS. 757 AND 772.  ARGUED APRIL 7, 1938.  - DECIDED APRIL 25, 1938.  -
21 F.SUPP.  129, REVERSED. 


1.  PROCEEDINGS FOR VOLUNTARY COMPOSITION OF DEBTS WITHOUT
ADJUDICATION OF BANKRUPTCY ARE WITHIN THE SCOPE OF THE BANKRUPTCY
POWER.  P. 47. 

2.  CALIFORNIA LAW, 1934, EXTRA SESS., GAVE THE STATE'S CONSENT TO
THE APPLICATION TO STATE "TAXING DISTRICTS," OF THE BANKRUPTCY ACT AND
AMENDMENTS, INCLUDING CHAPTER X, ADDED TO THAT ACT AUG. 16, 1937.  P.
47. 

3.  THE OMISSION FROM C. X OF THE BANKRUPTCY ACT OF A PROVISION
SPECIFICALLY REQUIRING THAT THE PETITION OF A STATE TAXING DISTRICT
UNDER THAT CHAPTER BE APPROVED BY A GOVERNMENTAL AGENCY OF THE STATE,
HELD UNIMPORTANT IN DETERMINING THE VALIDITY OF THE LEGISLATION WHERE
THE STATE HAS ACTUALLY CONSENTED.  P. 49. 

4.  IN CONDITIONING THE CONFIRMATION OF A PLAN OF COMPOSITION UPON
PROOF THAT THE PETITIONING TAXING DISTRICT IS "AUTHORIZED BY LAW" TO
TAKE ALL ACTION NECESSARY TO CARRY OUT THE PLAN, C. X OF THE BANKRUPTCY
ACT REFERS TO THE LAW OF THE STATE.  P. 49. 

5.  CHAPTER X OF THE BANKRUPTCY ACT, ADOPTED AUG. 16, 1937, EMPOWERS
THE COURTS OF BANKRUPTCY TO ENTERTAIN AND PASS UPON PETITIONS BY STATE
TAXING AGENCIES OR INSTRUMENTALITIES, INCLUDING IRRIGATION DISTRICTS,
FOR THE COMPOSITION OF THEIR INDEBTEDNESS PAYABLE OUT OF ASSESSMENTS OR
TAXES LEVIED AGAINST AND CONSTITUTING LIENS UPON PROPERTY IN THEIR
DISTRICTS OR OUT OF INCOME DERIVED THEREFROM OR FROM SALE OF WATER,
ETC.  THE PLAN OF COMPOSITION MUST BE APPROVED BY CREDITORS OWNING NOT
LESS THAN 51% OF THE SECURITIES AFFECTED BY THE PLAN AND CAN NOT BE
CONFIRMED UNLESS ACCEPTED BY CREDITORS HOLDING 66 2/3% OF THE AGGREGATE
INDEBTEDNESS OF THE DISTRICT.  THERE MUST BE CONSENT BY THE STATE; AND
THE JUDGE MUST BE SATISFIED THAT THE DISTRICT IS AUTHORIZED BY LOCAL
LAW TO CARRY OUT THE PLAN.  THE STATUTE AIMS TO RELIEVE SERIOUS
DISTRESS EXISTING IN MANY SUCH IMPROVEMENT DISTRICTS WHERE, BECAUSE OF
ECONOMIC CONDITIONS, PROPERTY OWNERS CAN NOT PAY ASSESSMENTS, AND
TAXATION IS USELESS, SO THAT THE DISTRICTS CAN NOT MEET THEIR
OBLIGATIONS AND CREDITORS ARE HELPLESS.  A REMEDY THROUGH COMPOSITION
OF THE DEBTS OF THE DISTRICT COULD NOT BE AFFORDED BY STATE LAW
UNAIDED, BECAUSE OF THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION. 
HELD THAT THE STATUTE IS A VALID EXERCISE OF THE BANKRUPTCY POWER. 
ASHTON V. CAMERON COUNTY DISTRICT, 298 U.S. 513, DISTINGUISHED.  P.
49. 

6.  THE ABILITY TO CONTRACT AND TO GIVE CONSENTS BEARING UPON THE
EXERTION OF GOVERNMENTAL POWER IS OF THE ESSENCE OF SOVEREIGNTY.  P.
51. 

7.  THE RESERVATION TO THE STATES BY THE TENTH AMENDMENT, DID NOT
DESTROY, BUT PROTECTED, THEIR RIGHT TO MAKE CONTRACTS AND GIVE CONSENTS
WHERE THAT ACTION WOULD NOT CONTRAVENE THE PROVISIONS OF THE FEDERAL
CONSTITUTION.  P. 52. 

8.  COOPERATION BETWEEN NATION AND STATE THROUGH THE EXERCISE OF THE
POWERS OF EACH, TO THE ADVANTAGE OF THE PEOPLE WHO ARE CITIZENS OF
BOTH, IS CONSISTENT WITH AN INDESTRUCTIBLE UNION OF INDESTRUCTIBLE
STATES.  P. 53. 

9.  CHAPTER X OF THE BANKRUPTCY ACT, HELD NOT VIOLATIVE OF THE FIFTH
AMENDMENT, AS APPLIED TO CREDITORS OF A STATE IRRIGATION DISTRICT,
WHICH SOUGHT A COMPOSITION OF ITS DEBTS UNDER THAT CHAPTER.  P. 54. 

UNITED STATES V. BEKINS ET AL., TRUSTEES, ET AL. 

LINDSAY-STRATHMORE IRRIGATION DISTRICT V. BEKINS ET AL., TRUSTEES, ET
AL. 

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

APPEALS FROM A DECREE OF THE DISTRICT COURT DISMISSING A PETITION FOR
CONFIRMATION OF A PLAN OF COMPOSITION PRESENTED BY THE ABOVE-NAMED
IRRIGATION DISTRICT UNDER C. X OF THE BANKRUPTCY ACT.  THE DISTRICT AND
THE UNITED STATES, WHICH HAD BEEN NOTIFIED AND HAD INTERVENED, TOOK
SEPARATE APPEALS.  THE FOLLOWING ARGUMENTS ARE EXTRACTED FROM A
STENOGRAPHIC REPORT OF THE HEARING. 

AS WE UNDERSTAND THE ISSUES HERE PRESENTED, THERE IS NO QUESTION
INVOLVING THE RIGHTS OF INDIVIDUALS, AND THERE IS NO QUESTION WITH
REGARD TO THE MECHANICS OF THE LAW.  THE SOLE QUESTION IS WHETHER OR
NOT LEGISLATION EMBODIED IN SECS. 81, 82 AND 83 OF THE BANKRUPTCY ACT,
AS AMENDED, WHICH SECTIONS WE KNOW AS THE MUNICIPAL BANKRUPTCY ACT,
IMPINGES UPON THE SOVEREIGNTY OF THE STATE. 

IN THIS PARTICULAR LITIGATION THE QUESTION ARISES WITH REFERENCE TO
AN IRRIGATION DISTRICT. 

BRIEFLY VISUALIZING THE TRANSACTIONS WITH REFERENCE TO THAT DISTRICT
AND THE CHARACTER OF THE DISTRICT, WE OBSERVE THAT A GROUP OF FARMERS
OWNING CONTIGUOUS LANDS, DESIRING TO CULTIVATE THOSE LANDS UNDER
IRRIGATION, AVAILED THEMSELVES OF THE FACILITIES PROVIDED BY THE STATE
OF CALIFORNIA FOR PUTTING A BLANKET MORTGAGE ON THOSE LANDS FOR THE
PURPOSE OF BRINGING WATER TO THOSE LANDS TO AID THEM IN THE BUSINESS OF
FARMING. 

THAT DISTRICT EXERCISED, UNDER DELEGATION FROM THE STATE, POWER OF
EMINENT DOMAIN AND POWER OF TAXATION.  IT DID NOT RELIEVE THE STATE OF
CALIFORNIA OF ANY GOVERNMENTAL RESPONSIBILITY THERETOFORE EXERCISED BY
IT. 

IT SEEMS TO US THAT IN SO FAR AS DRAINAGE AND IRRIGATION DISTRICTS
ARE CONCERNED, THEY HAVE MORE THE CHARACTERISTICS OF A RAILROAD
CORPORATION THAN THEY DO OF AN ORDINARY MUNICIPALITY.  A RAILROAD
CORPORATION, BY DELEGATION, EXERCISES THE RIGHT OF EMINENT DOMAIN -
PROBABLY AS HIGH A RIGHT AND POWER AS GOVERNMENT HAS - YET IT DOES NOT
THEREBY BECOME A PART OF THE STATE. 

BUT I DO NOT DESIRE TO TAKE THE TIME OF THE COURT IN DISCUSSING THE
DIFFERENCES, WHATEVER THEY MAY BE, BETWEEN AN IRRIGATION DISTRICT AND
AN ORDINARY MUNICIPALITY, BECAUSE THE PROVISIONS OF THIS ACT COVER THEM
ALL. 

WHEN WE COME TO EXAMINE WHAT HAPPENED AS THE RESULT OF THIS
LEGISLATION WITH REFERENCE TO THE SOVEREIGNTY AND DIGNITY OF THE
MUNICIPALITY, OR OF THE STATE, HOWEVER IT MAY BE CONSIDERED, WE
DISCOVER THAT EVERY DEBT WHICH COULD BE COMPOSED UNDER THIS ACT IS A
DEBT WHICH, UNDER THE THEN EXISTING LAW, WOULD CONSTITUTE A BASIS OF
LITIGATION IN AN ORDINARY SUIT AGAINST THE MUNICIPALITY. 

THE MUNICIPALITY, THEREFORE, BEFORE THIS LAW WAS ENACTED, COULD BE
BROUGHT INTO COURT FOR THESE SAME DEBTS BY THE PROCESS OF THE COURT,
AGAINST THE WILL OF THE MUNICIPALITY, THE ISSUES TRIED AS THOUGH THE
MUNICIPALITY WERE AN ORDINARY DEFAULTER, JUDGMENT HAD IN THE ORDINARY
WAY; AND IF THE JUDGMENT OF THE COURT WERE NOT COMPLIED WITH, THE
MUNICIPALITY COULD BE BROUGHT INTO COURT AGAIN AND SUBJECTED TO THE
COERCION OF THE COURT, EVEN TO THE EXTENT OF THE INCARCERATION OF ITS
OFFICERS.  ... 

IN A SIMILAR SITUATION THIS SAME MUNICIPALITY, WHICH THERETOFORE
COULD BE BROUGHT INTO COURT BY THE MIGHT OF THE COURT AND WITHOUT
REGARD TO ITS CONSENT, UNDER THIS ACT COMES INTO THAT COURT AS A
SOVEREIGN WOULD COME, A COMPLETE SOVEREIGN.  IT COMES IN UNDER ITS OWN
WILL.  NOBODY IS COMPELLING IT TO COME.  NOBODY CAN COMPEL IT TO COME
UNDER THIS ACT.  IN THE EXERCISE OF ITS SOVEREIGN RIGHT TO ARRANGE ITS
INDEBTEDNESS - IT HAD BEEN SITTING AROUND A TABLE WITH ITS CREDITORS,
AND THEY HAD AGREED.  IN THE INSTANT CASE 87 PER CENT. AGREED THAT 59
CENTS ON THE DOLLAR WAS THE BEST THING FOR EVERYBODY CONCERNED. 

SO THIS MUNICIPALITY, BY AUTHORITY OF THIS ACT, GOES INTO THAT SAME
COURTHOUSE, BEFORE THE SAME JUDGE, LEADING A PROCESSION OF ITS
CONSENTING CREDITORS, AND SAYS TO THE JUDGE, "WE HAVE ENTERED INTO THIS
AGREEMENT, 87 PER CENT.  THERE ARE 13 PER CENT. WHO DO NOT CONSENT. 
WILL YOU BE GOOD ENOUGH TO EXAMINE TO DETERMINE WHETHER OR NOT THIS
AGREEMENT IS FAIR TO THE 13 PER CENT. AND THAT IT DOES NOT DO SOME
OTHER THINGS PROVIDED AGAINST IN THE LAW."  IT TELLS THE COURT ALSO, "I
AM HERE BECAUSE, FIRST, I WAS CREATED BY A SOVEREIGN STATE IN THE
EXERCISE OF ITS SOVEREIGN POWERS.  THAT SOVEREIGN GAVE ME AUTHORITY TO
COME HERE.  THERE IS NOWHERE ELSE MYSELF AND MY CREDITORS CAN GO, AND
WON'T YOU PLEASE WRITE OUR AGREEMENT INTO THE BOOK OF JUDGMENTS." 

EVEN IF IT WERE AN ORDINARY LAWSUIT, AS WE UNDERSTAND IT, THERE IS NO
HIGHER ACT OF SOVEREIGNTY THAN FOR THE SOVEREIGN VOLUNTARILY TO SUBMIT
ITSELF TO THE JUDGMENT OF A COURT.  THE FEDERAL GOVERNMENT DOES IT ALL
THE TIME, THE STATES DO IT; AND WE HAVE NEVER UNDERSTOOD THAT, WHEN A
SOVEREIGN VOLUNTARILY SUBMITS ITSELF TO TRIAL AND JUDGMENT, BY THAT
SUBMISSION IT IMPAIRS ITS SOVEREIGNTY OR THEREBY MAKES IT POSSIBLE TO
BE SUED WITHOUT ITS WILL. 

MAY I RESPECTFULLY SUBMIT TO THE COURT THAT, INSTEAD OF IMPINGING
UPON THE SOVEREIGNTY OF THE STATE, THIS ACT CLEARLY IS IN LINE WITH THE
NATURE AND PHILOSOPHY OF SOVEREIGNTY OF THE STATE, AND THAT TO DECLARE
THIS ACT UNCONSTITUTIONAL WOULD IMPINGE UPON THE SOVEREIGNTY OF THE
STATE.  SUCH A DETERMINATION WOULD DENY TO THE STATE OF CALIFORNIA, IN
THIS MATTER, THE RIGHT TO HAVE A SOVEREIGN WILL WITH REFERENCE TO WHAT
IT WILL PERMIT ITS CREATURES TO DO. 

ALL THE WAY DOWN THE LINE THERE HAS BEEN CONSENT.  FIRST, THE CONSENT
OF THE CREATOR, CALIFORNIA; CONSENT OF THE CONGRESS, THE POLICY-FIXING
AGENCY OF THE FEDERAL GOVERNMENT; CONSENT OF THE MUNICIPALITY ITSELF,
AND CONSENT OF THE CREDITORS.  NOW, IF WE ARE TO DENY THESE AGENCIES,
WHICH SPEAK THE VOICE OF SOVEREIGNTY AND THE JUDGMENT AND WILL OF THE
PRIVATE CITIZEN, THE RIGHT THUS TO SPEAK, WHAT BECOMES OF THEIR
SOVEREIGNTY? 

IF THE CREDITORS CONSENT, AND THE MUNICIPALITY CONSENTS, AND THE
STATE CONSENTS, AND THE POLICY-FIXING AGENCY OF THE FEDERAL GOVERNMENT
CONSENTS, WITH ALL RESPECT, WHOSE ELSE BUSINESS IS IT, IF THEY ARE
SOVEREIGN? 

WE RESPECTFULLY SUBMIT THAT TO DENY TO A SOVEREIGN THE RIGHT TO HAVE
A SOVEREIGN WILL AND TO MAKE THAT WILL EFFECTIVE, DENIES TO IT THE VERY
ESSENCE OF SOVEREIGNTY. 

I AM PRIVILEGED TO TAKE A LONGER TIME OF THE COURT, BUT I COULD NOT
ADD TO THE SUBSTANCE OF WHAT I HAVE SAID.  WE APPRECIATE VERY MUCH THE
COURT PERMITTING ME TO APPEAR. 

THE DISTRICT IS UTTERLY UNABLE TO MEET ITS OBLIGATIONS IN DUE COURSE,
AND IT IS AUTHORIZED BY LAW TO CARRY OUT A PLAN OF COMPOSITION. 

IT ASKS THE BANKRUPTCY COURT TO SERVE THE NOTICE REQUIRED BY STATUTE
TO BRING IN THE DISSENTING CREDITORS, TO GRANT HEARINGS, TO HOLD
INQUIRY AS TO THE REASONABLENESS AND FAIRNESS OF THE PLAN, TO STAY ALL
SUITS THAT MIGHT BE BROUGHT TO INTERFERE WITH THE DISTRICT OR ITS
PROPERTY MEANWHILE, AND THAT THE COURT, IF IT FINALLY APPROVES THE
PLAN, ENTER AN ORDER AS PROVIDED FOR IN THE ACT, DISCHARGING THE
DISTRICT FROM ALL FURTHER OBLIGATIONS UNDER THESE OUTSTANDING BONDS
WHICH WOULD BE COMPOSED BY A PAYMENT OF 59 CENTS ON THE DOLLAR. 

THE MEASURE RECEIVED CAREFUL CONSIDERATION BEFORE THE COMMITTEES OF
THE HOUSE AND SENATE, AMENDMENTS WERE MADE WITH A VIEW TO INSURING
CONSTITUTIONALITY, AND THE CONGRESS CONCLUDED AFTER FULL DISCUSSION
THAT THE BILL AS ENACTED WAS FREE FROM THE OBJECTIONABLE FEATURES WHICH
HAD BEEN HELD FATAL TO THE ORIGINAL ACT.  (C. IX.  SEE ASHTON V.
CAMERON COUNTY DIST., 298 U.S. 513.) 

THE ONLY JURISDICTION THAT IS CONFERRED, IS THE JURISDICTION TO
COMPOSE 

"  ...  INDEBTEDNESS OF OR AUTHORIZED BY ANY TAXING AGENCIES OR
INSTRUMENTALITIES HEREINAFTER NAMED, WHICH ARE PAYABLE OUT OF
ASSESSMENTS OR TAXES OR BOTH, OR OUT OF PROPERTY ACQUIRED BY
FORECLOSURE BY THE DISTRICT, OR OUT OF INCOME BY SUCH TAXING
DISTRICTS." 

THESE DISTRICTS ARE THEN ENUMERATED IN SEPARATE SUBDIVISIONS. 

THE PURPOSE OF THE SUBDIVISIONS AND OF THE SEPARABILITY CLAUSE WAS
CLEARLY STATED ON THE HOUSE FLOOR BY JUDGE SUMNERS. 

MR. SUMNERS FRANKLY STATED THAT THE SIXTH CLASSIFICATION, THE
POLITICAL SUBDIVISIONS, IMPLIED PROCEEDINGS THAT WOULD BE
UNCONSTITUTIONAL UNDER THE ASHTON CASE.  HE FELT, HOWEVER, IT WAS NOT
ONLY THE RIGHT, BUT THE DUTY OF CONGRESS TO PRESENT THE QUESTION ONCE
MORE TO THIS COURT, SINCE THE DECISION, IF ALLOWED TO STAND, THREATENED
GRAVE IMPAIRMENT TO THE POWERS OF THE STATES, IN THAT IT FORBADE THEM
TO AUTHORIZE THEIR POLITICAL SUBDIVISIONS TO ENTER INTO BANKRUPTCY
PROCEEDINGS. 

THE CASE BEFORE THIS COURT DOES NOT INVOLVE THE SIXTH SUBDIVISION,
BUT INVOLVES SUBDIVISION 1, SO THAT IF IT BE HELD THAT THE LAW IS
CONSTITUTIONAL IN ITS APPLICATION TO THIS PARTICULAR DISTRICT, EVEN
THOUGH IT COULD BE HELD UNCONSTITUTIONAL AS APPLIED TO DISTRICTS
COVERED BY SUBDIVISION 6, WE ARE ENTITLED TO PREVAIL. 

THE POWER TO LEGISLATE ON THE SUBJECT OF BANKRUPTCIES FREQUENTLY HAS
BEEN PASSED UPON BY THIS COURT.  AND THE CONSTITUTIONAL DEVELOPMENT OF
THIS CLAUSE AT THE HANDS OF THIS COURT IN OVER A CENTURY HAS FOLLOWED
OUT THE GENERAL CONCEPTION OF THE BREADTH AND SWEEP OF THAT POWER AS IT
SEEMS TO HAVE BEEN ENTERTAINED AT THE TIME THE POWER WAS GIVEN. 

THE WHOLE METHOD AND PURPOSE OF BANKRUPTCY HAS CHANGED WITH THAT
CENTURY OF INTERPRETATION.  BANKRUPTCY AS IT EXISTED AT THE TIME, AND
AS IT EXISTED IN THE FIRST BANKRUPTCY ACT PASSED BY THE FEDERAL
GOVERNMENT IN 1800, WAS A REMEDY OF THE CREDITOR, A FURTHER REMEDY,
AGAINST THE DEBTOR. 

IT IS NOW A NEW OPPORTUNITY IN LIFE, AND A CLEAR FIELD FOR FURTHER
EFFORTS TO THE BANKRUPT, UNHAMPERED BY THE PRESSURE AND DISCOURAGEMENT
OF PREEXISTING DEBTS.  CERTAINLY IF THAT IS THE PURPOSE OF THIS ACT, NO
REASON APPEARS WHY IT SHOULD BE EXTENDED TO PRIVATE DEBTORS AND NOT TO
PUBLIC DEBTORS.  MANY SUBDIVISIONS OF THE BODIES WHICH COMPOSED THE
UNITED STATES AT THE TIME OF THE CONSTITUTIONAL CONVENTION WERE
THEMSELVES AT THAT TIME IN DEFAULT, AND IN NEED, BUT THERE WAS NO
SUGGESTION THAT PUBLIC DEBTORS SHOULD BE EXCLUDED FROM THE BENEFITS OF
THE BANKRUPTCY POWER, ALTHOUGH, WE MUST GRANT, AT THAT TIME THE
BANKRUPTCY POWER WAS CONCEIVED TO BE A NARROWER POWER THAN IT HAS SINCE
BECOME. 

THERE IS EQUAL URGENCY FOR APPLYING THIS ACT TO PUBLIC DEBTORS - AN
URGENCY EQUAL TO ANY THAT HAS EVER EXISTED FOR EXTENDING IT TO PRIVATE
DEBTORS. 

THE STATISTICS ARE IN THE BRIEF, AND I WILL NOT DWELL UPON THEM AT
LENGTH, BUT OVER 2,000 IMPROVEMENT DISTRICTS WERE IN DEFAULT IN 1934. 
CITIES AS LARGE AS DETROIT AND MIAMI AND ASHEVILLE WERE IN DEFAULT.  41
OF THE 48 STATES HAD DEFAULTS WITHIN THEIR BORDERS.  THE DEFAULTED
BONDS WERE BETWEEN ONE BILLION AND TWO BILLION EIGHT HUNDRED MILLION,
AND IN 1938, WHEN THE CONGRESS WAS RECONSIDERING THIS MATTER, OVER
3,000 UNITS OF GOVERNMENT WERE FOUND TO BE IN DEFAULT. 

THE CREDITORS IN THOSE CASES STOOD WITHOUT A PRACTICABLE REMEDY. 
THERE IS USUALLY NO PROPERTY OF A DISTRICT SUBJECT TO EXECUTION. 
TAXPAYERS ARE NOT PERSONALLY LIABLE.  MANDAMUS TO LAY TAXES IS FUTILE,
BECAUSE IT RESULTS ONLY IN ASSESSMENTS THAT ARE DEFAULTED.  TAX SALES
DRIVE DOWN THE VALUE OF PROPERTY, AND ADD FURTHER TAX DELINQUENCIES. 
THE EXPERIENCE OF THOSE CREDITORS - WHO WERE THEMSELVES LARGELY
INSTRUMENTAL IN THE PRESSURE WHICH BROUGHT ABOUT THE ENACTMENT OF THESE
ACTS - THE EXPERIENCE OF THOSE CREDITORS WAS THAT THEY WERE WITHOUT
PRACTICABLE REMEDIES.  THIS WAS BECAUSE, THOUGH THE ONLY POSSIBLE
REMEDY WAS A REMEDY BY AGREEMENT, IT WAS ALMOST ALWAYS SUBJECT TO
DEFEAT.  EVEN THOUGH A GREAT MAJORITY OF THE CREDITORS AGREED WITH THE
DISTRICT ON A PRACTICAL COURSE TO RESTORE SOME VALUE TO THE DEFAULTED
BONDS AND TO REHABILITATE THE DISTRICT SO THAT IT COULD GO ON AND
EXERCISE ITS PUBLIC FUNCTIONS, ANY CREDITOR WHO HAD A HIGH ESTIMATE OF
THE NUISANCE VALUE OF HIS PARTICULAR SECURITY WAS IN A POSITION TO
BLOCK THE SETTLEMENT, WHICH REQUIRED UNANIMOUS ACTION. 

THEREFORE THE ONLY REMEDY AVAILABLE TO DISTRICTS, OR AVAILABLE TO
CREDITORS, IS THE PRACTICABLE PLAN OF COMPOSITION, IN WHICH NUISANCE
VALUES SHALL BE RULED OUT, AND IN WHICH EQUALITY OF TREATMENT OF THESE
CREDITORS WILL PREVAIL. 

AND IT IS CLEAR THAT THAT POWER, AS ATTEMPTED TO BE EXERCISED BY THIS
STATUTE, IS WITHIN THE GENERAL BANKRUPTCY POWER OF THE CONGRESS.  IT IS
EQUALLY CLEAR IT IS NOT WITHIN THE POWER OF THE STATE.  THE STATES
GRANTED THEIR POWER OVER BANKRUPTCIES TO THE FEDERAL GOVERNMENT.  THEY
WERE EXPRESSLY FORBIDDEN TO PASS LAWS IMPAIRING THE OBLIGATION OF
CONTRACTS.  IT SEEMS IMPOSSIBLE TO SAY THAT A STATUTE OF CONGRESS WHICH
EXERCISES A POWER TWICE DENIED TO THE STATES - DENIED ONCE BY
DELEGATION TO THE FEDERAL GOVERNMENT, AND DENIED ONCE BY EXPRESS
PROHIBITION - CAN BE AN INVASION OF STATES' RIGHTS. 

THERE IS ONE THING THE STATES CAN DO.  THE STATE CAN CONNIVE AT
REPUDIATION.  IT CAN REFUSE TO EXTEND REMEDIES.  IT CAN FALL BACK ON
ITS POWER TO NULLIFY A CONTRACT AND REFUSE TO APPROVE.  THAT, NEITHER
IN POINT OF GOOD FINANCE, NOR OF GOOD MORALS, IS A DESIRABLE
SITUATION.  IN ORDER THAT THE SITUATION MAY BE FRANKLY FACED, AND THAT
SOUNDER REMEDIES MAY BE PRACTICABLY APPLIED, THERE MUST BE AN ESCAPE
FROM THE LIMITATION IMPOSED UPON THE STATE, AND THAT ESCAPE MUST BE
FOUND IN THE POWER OF THE FEDERAL GOVERNMENT.   THIS POWER NOT ONLY WAS
DELEGATED TO THE UNITED STATES, BUT IT WAS DENIED TO THE STATES, AND IT
IS CLEAR THE TENTH AMENDMENT UNDER SUCH CIRCUMSTANCES HAS NO FUNCTION
WHATEVER TO PERFORM IN THIS CASE.  ONCE A DELEGATED POWER IS FOUND
THERE IS THEN NO ROOM FOR THE OPERATION OF THE TENTH AMENDMENT. 

THERE IS THEN NO QUESTION OF STATE SOVEREIGNTY INVOLVED, SINCE WE
HAVE A GRANTED POWER. 

THEN THERE IS THE ARGUMENT ADVANCED HERE THAT FROM THE NECESSITIES OF
OUR FORM OF GOVERNMENT, BECAUSE OF THE DUAL NATURE OF OUR SYSTEM, THERE
IS A NECESSITY TO PRESERVE THE INDEPENDENCE OF THE STATE AND TO PROTECT
ITS SOVEREIGNTY, AND THAT THEREFORE THIS POWER, EVEN THOUGH IT BE A
DELEGATED POWER, CANNOT BE EXERCISED IF IT IMPINGES UPON WHAT WOULD BE
CALLED SOVEREIGN POWERS OR INDEPENDENT POWERS OF THE STATE.  I SUBMIT
THAT THE TENTH AMENDMENT ITSELF DENIES THAT ARGUMENT. 

IF THE FEDERAL GOVERNMENT MUST POINT OUT THE DELEGATION OF ITS
POWERS, THE TENTH AMENDMENT EQUALLY HOLDS THE ADVOCATES OF THE RIGHTS
OF SOVEREIGNTY OF THE STATES TO THE WORDING OF THE INSTRUMENT.  IT
CLEARLY PROHIBITS USING THE THEORY OF NECESSITY, THE THEORY OF THE
NATURE OF GOVERNMENT, OR OTHER PHILOSOPHICAL REASONS, FOR CUTTING DOWN
GRANTED POWERS. 

NOW, THERE IS AN EFFORT IN THE BRIEF OF OUR ADVERSARY TO COMPARE THIS
POWER WITH THE TAXING POWER, AND TO HOLD THAT BECAUSE THERE ARE CERTAIN
IMMUNITIES TO THE STATE AND TO STATE AGENCIES UNDER THE TAXING POWER, A
SIMILAR IMMUNITY MUST BE WRITTEN INTO THE BANKRUPTCY POWER.  THAT
ARGUMENT STARTS BY ASSERTING THE THEORY THAT THE BANKRUPTCY POWER IS
FOUND IN THE SAME SUBSECTION OF THE CONSTITUTION AS THE GRANT OF THE
TAXING POWER.  SO ARE THE POWERS TO REGULATE INTERSTATE COMMERCE, AND
TO PUNISH COUNTERFEITERS.  THE TAXING AND BANKRUPTCY POWERS ARE NOT
PARALLEL POWERS; AND NO ARGUMENT BASED ON THE ONE CAN BE APPLIED TO THE
OTHER.  THE POWER OF THE FEDERAL GOVERNMENT TO TAX IS SUBJECT TO
QUALIFICATION, AND THE BANKRUPTCY POWER IS NOT.  THE POWER TO TAX IS TO
PROVIDE FOR THE COMMON DEFENSE AND THE GENERAL WELFARE, AND HENCE IT
MAY VERY WELL BE THAT WHERE YOU HAVE A PLAN OF WHICH THE TAX IS A PART,
SUCH AS THIS COURT HELD THE AGRICULTURAL ADJUSTMENT ACT TO BE, OR THE
CHILD LABOR ACT, THEN YOU ARE LED TO AN INQUIRY AS TO WHETHER THE
TAXING PLAN ITSELF IS LOCAL OR IS GENERAL, IS NATIONAL OR IS WITHIN
POWERS RESERVED TO LOCALITIES.  THE VERY NATURE OF THE TAXING POWER, AS
IT EXISTS IN THE FEDERAL GOVERNMENT, MAY DEMAND THAT INQUIRY; BUT THERE
IS NO SUCH QUALIFICATION IN THE BANKRUPTCY CLAUSE.  THAT REQUIRES ONLY
UNIFORMITY. 

WHEN WE CONSIDER IMMUNITY AS IT EXISTS IN THE STATES FROM FEDERAL
TAXES, AND AS IT EXISTS IN THE GOVERNMENT FROM STATE TAXATION, WE ARE
DEALING WITH A TOTALLY DIFFERENT THING.  THE POWER OF TAXATION DERIVES
FROM THE RELATIONSHIP OF SOVEREIGN AND SUBJECT.  THAT RELATIONSHIP
DERIVED ORIGINALLY FROM THE DUTY OF A SOVEREIGN TO PROTECT, AND FROM
THE DUTY OF THE SUBJECT TO ASSIST THE SOVEREIGN IN MAINTAINING THAT
PROTECTION.  WE FIND NO STATE HAS ASSUMED SUCH A DUTY TOWARD THE
FEDERAL GOVERNMENT; WE FIND NO STATE HAS ASSUMED A RELATIONSHIP TOWARD
THE FEDERAL GOVERNMENT WHICH IN THE NATURE OF THE TAXING POWER MAKES IT
APPLICABLE, ONE TO THE OTHER. 

THE VERY NATURE OF THE TAXING POWER IMPLIES THAT IT IS EXERTED BY THE
SOVEREIGN AGAINST THE CITIZEN, AND NOT AGAINST ANOTHER GOVERNMENTAL
BODY, REGARDLESS OF WHETHER THE RELATIONSHIP IS THAT OF AN EQUAL
SOVEREIGN, OR THAT OF A SUBSIDIARY GOVERNMENTAL GROUP. 

TAX BURDENS, OF COURSE, ARE INVOLUNTARY BURDENS AND, AS THIS COURT
HAS SAID, MAY BE DESTRUCTIVE.  THE POWER TO TAX MAY BE THE POWER TO
DESTROY, AND IT MAY BE LAID UPON A STATE AS A STATE ONLY WHEN IT HAS
ASSUMED THAT OBLIGATION, OR IF THE LIABILITY TO TAXATION IS TO BE
IMPLIED FROM THE NATURE OF THE ACTIVITIES OF THE TAXPAYER. 

BANKRUPTCY IS AN ENTIRELY DIFFERENT KIND OF POWER.  IT IS MERELY THE
OPENING, IN THIS CASE, OF A FORUM TO WHICH THIS STATE MAY RESORT, AS WE
MAY OPEN A FORUM TO WHICH FOREIGN CREDITORS OR FOREIGN DEBTORS MAY
RESORT. 

NO COMPULSION UPON ANY STATE OR STATE AGENCY IS HERE INVOLVED.  THIS
IS A VOLUNTARY ACT, AND IT RAISES NO QUESTIONS UNDER THE ELEVENTH
AMENDMENT. 

THIS COURT HAS HELD THAT, WITHOUT ANY CONSENT OF A SOVEREIGN STATE,
ITS TAXING AGENCIES MAY BE SUED.  MANDAMUS MAY LIE AGAINST A TAXING
DISTRICT.  AND IT HAS BEEN HELD IN ONE CASE THAT, WHERE A STATE LAW
PROVIDES A SIMILAR REMEDY, A RECEIVER MAY BE APPOINTED TO GO INTO SUCH
A DISTRICT AND TAKE OVER ITS AFFAIRS AND OPERATIONS. 

EVEN THE TAXING IMMUNITY CAN BE WAIVED.  THIS COURT HAS HELD THAT A
STATE MAY WAIVE THE TAX IMMUNITY OF ITS AGENCIES, AND THAT THE FEDERAL
GOVERNMENT MAY WAIVE THE TAX IMMUNITY OF THE AGENCIES WHICH IT
CREATES.  IN THIS CASE THIS BANKRUPTCY ACT CAN NEVER APPLY TO ANY
DISTRICT UNLESS THERE IS A FINDING THAT THE LAW OF THE STATE AUTHORIZES
IT TO SEEK THAT REMEDY AND AUTHORIZES IT TO CARRY THAT REMEDY TO
COMPLETION. 

IT IS TRUE WE HAVE A DUAL SYSTEM OF STATE AND FEDERAL GOVERNMENTS,
BUT THAT DOES NOT MEAN THAT THEY CAN NOT COOPERATE FOR THE COMMON
NEED.  THAT QUESTION WAS SETTLED BY THIS COURT IN THE SOCIAL SECURITY
CASES.  (301 U.S. 548, 619.) 

NOW, WE FIND THE STATE AND THE NATION CONFRONTED WITH THIS DIFFICULTY
ARISING OUT OF THE LIMITATION OF THE POWER OF THE STATE TO DEAL WITH
ITS OWN TAXING AGENCIES AND THEIR DEBTS.  WE FIND THESE DEFAULTED BONDS
IN THE CHANNELS OF TRADE.  WE FIND TAXING DISTRICTS IMPAIRED IN THEIR
CAPACITY TO CARRY ON AND PERFORM THE VERY FUNCTIONS FOR WHICH THEY WERE
CREATED, AND WE SAY THAT THERE IS NO DIFFICULTY IN THE TWO UNITS, THE
STATE AND THE NATION, WITHOUT EITHER ONE OF THEM IN THE LEAST RECEDING
FROM ITS SOVEREIGNTY, SETTING UP TOGETHER A COMMON REMEDY. 

MR. KNUPP FOR THE IRRIGATION DISTRICT EXPLAINED THE CHARACTER OF THE
DISTRICT, THE HISTORY AND EXTENT OF ITS INDEBTEDNESS AND THE
HOPELESSNESS OF ITS FINANCIAL SITUATION.  THE COURT BELOW HAD
MISCONCEIVED THE ASHTON CASE AND THE NATURE AND PURPOSE OF THE NEW
LEGISLATION.  THE PRESENT ACT AIMS TO AVOID INTERFERENCE WITH
GOVERNMENTAL FUNCTIONS, PUBLIC AGENCIES, AND THEIR FISCAL AFFAIRS.  IT
DEALS WITH VOLUNTARY COMPOSITION.  CHAPTER IX GAVE POWER TO THE COURT
TO CHANGE THE PROPOSED PLAN OF COMPOSITION.  NOT SO CHAPTER X. CHAPTER
IX GAVE POWER TO INTERFERE WITH FISCAL POWERS AND POLICIES OF THE
PUBLIC DEBTOR.  WRIGHT V. VINTON BRANCH, 300 U.S. 440, IS APPLICABLE. 

MR. COOK ON BEHALF OF APPELLEES EXPLAINED THE PECULIAR IMPORTANCE OF
IRRIGATION IN CALIFORNIA.  THE CONTROL OF WATER IS A PUBLIC TRUST,
EMBEDDED IN THE STATE CONSTITUTION AND EXECUTED THROUGH ITS LAWS.  THE
WORK OF THE IRRIGATION DISTRICT IS WORK THAT THE STATE MIGHT ITSELF
DIRECTLY PERFORM, WITHOUT GIVING THE LAND OWNERS WITHIN THE DISTRICT
ANY VOICE IN THE SELECTION OF MANAGERS AND TRUSTEES.  BUT CALIFORNIA,
IN ORDER THAT IT MIGHT CARRY OUT WHAT IT CONCEIVED TO BE A STATE
FUNCTION, HAS PERMITTED THE ORGANIZATION OF SOMETHING LIKE 100
IRRIGATION DISTRICTS IN THE STATE AND HAS CONFERRED UPON THOSE
DISTRICTS SOVEREIGN POWERS, THE POWER OF TAXATION, THE POWER TO BORROW
MONEY. 

THE LEGISLATURE ITSELF COULD PERFORM THOSE FUNCTIONS DIRECTLY BY SOME
DEPARTMENT OF THE STATE.  INSTEAD OF THAT, IT CHOSE TO GIVE THE PEOPLE
GREATER CONTROL, BECAUSE THEY WERE VITALLY INTERESTED.  IT COULD HAVE
RAISED REVENUES BY DIRECT TAXATION UPON THE ENTIRE STATE, BECAUSE THE
PURPOSE WOULD HAVE BEEN PUBLIC.  BUT REALIZING THAT GREATER JUSTICE
WOULD BE DONE, IT ALLOCATED THE INDEBTEDNESS TO THE DISTRICTS MORE
DIRECTLY AFFECTED, AND THEREBY PERMITTED THE PEOPLE IN THOSE DISTRICTS
TO HAVE A VOICE IN THOSE AFFAIRS. 

ONE OF THE GREATEST POWERS IS THAT OF BORROWING MONEY.  THERE IS A
MISUNDERSTANDING HERE AS TO WHAT FISCAL POWER IS AFFECTED BY THIS ACT. 
IT IS TRUE THAT IN THE ACT EVERYTHING HAS BEEN DONE WHICH COULD
POSSIBLY HAVE BEEN THOUGHT OF IN ORDER TO RELIEVE THE COURT FROM THE
NECESSITY OF MAKING A DIRECT ORDER ON THE DISTRICT, BUT THE EFFECT UPON
THE FISCAL POWERS GOES BACK TO THE TIME OF THE BORROWING OF THE MONEY. 

EACH HOLDER OF A BOND AND COUPON IS ENTITLED TO PAYMENT OUT OF THE
BOND VALUES OF THE DISTRICT IN THE ORDER IN WHICH HIS BOND OR COUPON
HAS BEEN PRESENTED.  THAT MAKES EACH BOND AND COUPON A SEPARATE CLASS,
AND THE ONE PRESENTED TODAY IS ENTITLED TO PAYMENT BEFORE THE ONE
PRESENTED TOMORROW. 

THIS ACT WOULD HAVE THE SAME EFFECT AS RESPECTS THE FISCAL POWERS OF
THE DISTRICT AND STATE AS WOULD AN EXERCISE OF POWERS TO TAX INCOME
FROM THE BONDS - IT WOULD TEND MUCH MORE TO DESTROY, BECAUSE UNDER THIS
ACT YOU TAKE THE PRINCIPAL, WHEREAS UNDER THE INCOME ACT, YOU CAN TAKE
ONLY A PORTION OF THE INTEREST. 

IF THIS POWER UNDER THIS ACT IS SUSTAINED, OUR GREAT CITIES,  - ALL
THE TAXING DISTRICTS, SEWER DISTRICTS, ROAD DISTRICTS, RECLAMATION
DISTRICTS OF CALIFORNIA - COULD BE FORCED INTO BANKRUPTCY. 

I BELIEVE IT IS TRUE THAT A SOVEREIGN STATE AS WELL AS A SOVEREIGN
NATION DOES NOT HAVE THE RIGHT TO ABDICATE ANY SOVEREIGN FUNCTION WHICH
IS ESSENTIAL TO ITS SOVEREIGNTY.  PERRY V. UNITED STATES, 294 U.S.
330. 

THE ELEVENTH AMENDMENT GIVES US NO HELP.  THE STATE MAY WAIVE ITS
RIGHT NOT TO BE SUED.  THE FACT THAT THESE DISTRICTS CAN BE BROUGHT
INTO COURT UNDER CERTAIN CONDITIONS IN NO MANNER DETRACTS FROM ANY
ESSENTIAL OF SOVEREIGNTY, BECAUSE THE PLAINTIFF IN SUCH CASE BROUGHT
AGAINST THE STATE IS MERELY PERMITTED TO OBTAIN AN ADJUDICATION OF
WHATEVER RIGHTS HE MAY HAVE.  HE IS NOT BY WAIVER OF THE IMMUNITY
AGAINST SUIT GIVEN THE RIGHT TO ASSERT OTHER OR DIFFERENT RIGHTS. 

THE INTERSTATE COMMERCE CLAUSE DOES NOT SEEM TO US TO BE ANALOGOUS. 

I KNOW OF NO PRINCIPLE PERMITTING STATE OR FEDERAL GOVERNMENTS TO
WAIVE THEIR POWER TO TAX,  - A POWER ESSENTIAL TO SOVEREIGNTY. 

THE BANKRUPTCY POWER IS NOT A POWER ESSENTIAL TO THE NATIONAL
GOVERNMENT.  IT WAS GIVEN TO THE NATIONAL GOVERNMENT FOR CONVENIENCE,
FOR UNIFORMITY.  IT IS A SORT OF REGULATORY OR POLICE POWER GRANTED TO
THE NATIONAL GOVERNMENT, AND THEREFORE IF IT COMES IN CONFLICT WITH THE
POWER OF THE STATE, WHICH IS ESSENTIAL TO THE MAINTENANCE OF THE
SOVEREIGNTY OF THE STATE, IT MUST GIVE WAY COMPLETELY. 

THIS IS A BANKRUPTCY ACT, WHETHER IT BE CALLED READJUSTMENT, OR
WHETHER IT BE CALLED COMPOSITION.  THE EFFECT OF IT IS TO COMPEL
CERTAIN PERSONS TO ACCEPT SOMETHING WHICH THEY HAVE NOT CONTRACTED TO
ACCEPT.  THE DIFFERENCE IN NOMENCLATURE BETWEEN CALLING THIS DISTRICT A
TAXING AGENCY OR A POLITICAL SUBDIVISION, IT SEEMS QUITE OBVIOUS COULD
HAVE NO EFFECT UPON THE INHERENT POWERS WHICH CONGRESS MAY HAVE. 

MR. COOK COMPARED CHAPTER X WITH CHAPTER IX.  ONE ESSENTIAL
DIFFERENCE IS THAT C. X DOES NOT REQUIRE THE CONSENT OF THE STATE. 

THE CALIFORNIA ENABLING ACT AUTHORIZED THE FILING OF A PETITION UNDER
C. IX. 

MR. CHILDERS, ON BEHALF OF APPELLEES, MAINTAINED THAT CHAPTERS IX AND
X WERE ALIKE OBJECTIONABLE.  THE SAME CLASSES OF AGENCIES ARE DEALT
WITH - ARMS OF THE SOVEREIGN POWER OF THE STATE.  THE ASHTON CASE
DECIDES THAT THE POWER OF CONGRESS DOES NOT EXTEND OVER THE SOVEREIGN
FUNCTION OF A STATE. 

IF THE POWER OF BANKRUPTCY EXTENDS OVER THESE STATE MANDATORIES IN A
LITTLE WAY, THAT IS, IN A VOLUNTARY PROCEEDING, IT MUST FOLLOW THAT IT
MAY BE EXERCISED AGAINST THESE MANDATORIES WITHOUT THEIR CONSENT OR
WITHOUT THE CONSENT OF THE STATE.  THE NEXT LOGICAL STEP IS TO MAKE
THAT SAME POWER APPLY TO THE STATE ITSELF.  CONGRESS MUST HAVE ALL THE
POWER OR NONE; AND THAT IS THE PRINCIPLE THAT WAS ANNOUNCED IN THE
ASHTON CASE.  WE FIND NOTHING IN THIS STATUTE THAT WOULD SEEM
MATERIALLY TO DIFFERENTIATE IT FROM THE ASHTON CASE. 

TO THE GREAT POWERS ASSIGNED TO THE UNITED STATES BY THE
CONSTITUTION, THE STATES ARE POWERLESS TO ADD.  THOSE POWERS ARE QUITE
SUFFICIENT IN THEMSELVES.  THE POWERS NOT DELEGATED HAVE BEEN RESERVED
TO THE STATES AND TO THE PEOPLE, AND AS THIS COURT SAID IN UNITED
STATES V. BUTLER, THE TENTH AMENDMENT WAS TO MAKE DOUBLY SURE. 

IT IS THE PEOPLE WHO ULTIMATELY HAVE THE SOVEREIGN POWER; AND THE
STATE IS NOT IN POSITION TO SURRENDER THOSE NECESSARY ELEMENTS OF
SOVEREIGNTY BY WHICH IT MUST EXIST. 

A STATE, THROUGH ITS LEGISLATURE, MAY CONSENT TO BE SUED, MAY
SURRENDER ITS SOVEREIGNTY IN A SUIT, BECAUSE THAT IS ONE OF THE POWERS
NOT PROHIBITED, AND THE LEGISLATURE HAS THE RIGHT TO SPEAK FOR THE
PEOPLE TO THAT EXTENT.  BUT IT IS PROHIBITED FROM PASSING ANY LAW
IMPAIRING THE OBLIGATIONS OF CONTRACT.  BANKRUPTCY IS NECESSARILY AN
IMPAIRMENT OF CONTRACT OBLIGATIONS.  THE TAXING POWER IS ONE OF THE
HIGHEST ATTRIBUTES OF SOVEREIGNTY.  IF THE UNITED STATES CAN APPLY THE
BANKRUPTCY POWER TO A STATE, THEN IT CAN CONTROL IN THE FISCAL AFFAIRS
OF THE STATE. 

THOUGH THE CONSTITUTION DOES NOT EXPRESSLY PROHIBIT, STATE OR FEDERAL
GOVERNMENTS MAY NOT TAX EACH OTHER'S INSTRUMENTALITIES, BECAUSE THAT
WOULD BE TO AFFECT THEIR SOVEREIGN FUNCTIONS.  IT IS NOT A QUESTION OF
THE SIZE OF THE TAX. 

THIS MUST BE TRUE OF BANKRUPTCY.  AS SOON AS IT TOUCHES THE STATE IN
THE REMOTEST DEGREE, IT WOULD SEEM THAT THE POWER COULD NOT EXIST. 

THERE SURELY CANNOT BE A LITTLE BANKRUPTCY.  SURELY CONGRESS MUST
HAVE THE WHOLE POWER OR NONE. 

THE POWER IN BANKRUPTCY WOULD SEEM TO BE MUCH MORE SINISTER THAN THE
POWER TO TAX, BECAUSE THE POWER TO TAX OPERATES ORDINARILY IN AN EVEN,
LIKE MANNER. 

THE STATE, OF COURSE, IS PROHIBITED BY THE CONTRACT CLAUSE FROM
IMPAIRING THE OBLIGATIONS OF A CONTRACT.  NOW, IT WOULD SEEM THAT
REGARDLESS OF WHAT SORT OF STATUTE A STATE MIGHT PASS, IT CAN NOT ADD
TO OR TAKE AWAY FROM THE POWER OF CONGRESS IN THAT REGARD.  IF A
CONSENT IS NEEDED TO MAKE AN ACT OF CONGRESS EFFECTIVE, THEN IT MUST BE
THAT THE POWER DOES NOT EXIST.  IF CONGRESS MUST LOOK TO ANOTHER
SOVEREIGN FOR ITS POWER, IT CAN NOT HAVE THE POWER.    IRRIGATION
DISTRICTS IN CALIFORNIA EXERCISE GOVERNMENTAL FUNCTIONS.  THE
LEGISLATURE HAS PLENARY POWER OVER THEM.  THEY ARE STATE AGENCIES. 

THE LEGISLATURE CAN DESTROY THEM BY SIMPLY REPEALING THE ACT UNDER
WHICH THEY EXIST, AND THE STATE CAN GO OUT AND DO THE WORK ITSELF, BY
ITS OWN AGENTS DIRECTLY.  THE BETTER CONSIDERED CASES HOLD THAT THE
BENEFICIAL INTEREST IN THE PROPERTY ACQUIRED BY ONE OF THESE DISTRICTS
IS IN THE STATE ITSELF.  IT DOES NOT MAKE MUCH DIFFERENCE IN THIS
CONNECTION WHETHER IT IS IN THE STATE OR THE LAND OWNER.  THE DISTRICT,
AS A LEGAL ENTITY, IS NOT THE BENEFICIAL OWNER.  IF THE BENEFICIAL
INTEREST IS IN THE LAND OWNER, HE MUST BE BROUGHT INTO COURT. 

HOW COULD THERE WELL BE A BANKRUPTCY OF ONE OF THESE PUBLIC AGENCIES
THAT CAN NOT RESPOND TO A JUDGMENT?  IT HAS NO PROPERTY THAT IS SUBJECT
TO EXECUTION. 

IN ANSWER TO QUESTIONS FROM THE CHIEF JUSTICE, MR. CHILDERS CONCEDED
THAT, UNDER CHAPTER X, NO PLAN OF COMPOSITION CAN GO THROUGH UNLESS
APPROVED BY THE DISTRICT; AND THAT THE CALIFORNIA ACT OF 1934 GAVE
CONSENT TO THE SUBMISSION OF SUCH A PLAN UNDER CHAPTER IX, IF NOT UNDER
CHAPTER X; BUT HE MAINTAINED THAT, EVEN SO, THE FEDERAL BANKRUPTCY
POWER CAN NOT BE APPLIED. 

ALL THE POWER OF GOVERNMENT, WHETHER POSSESSED BY THE NATION OR A
STATE, CAN NOT BE ASSERTED TO EFFECT THE COMPOSITION OF AN INDEBTEDNESS
OF SUCH A DISTRICT. 

THE CHIEF JUSTICE.  SO THAT THE STATE WOULD BE PROHIBITED TO EFFECT A
COMPOSITION OF 60 PER CENT., NO MATTER HOW FAIR IT IS, AND THE FEDERAL
GOVERNMENT WOULD BE PROHIBITED, ALTHOUGH THIS DISTRICT HAS AN ECONOMIC
PLIGHT WHICH NEEDS RELIEF FOR THE BENEFIT OF THE PEOPLE OF THE
DISTRICT, AND INCIDENTALLY THE PEOPLE OF THE STATE.  THERE IS NO POWER
IN THE GOVERNMENT AGAINST A CREDITOR TO PROVIDE FOR THAT RELIEF? 

MR. CHILDERS.  THAT IS RIGHT.  AND THE REMEDY WOULD BE MUCH WORSE, I
BELIEVE, THAN THE DISEASE. 

THE CHIEF JUSTICE.  REMEDIES OFTEN ARE. 

MR. JUSTICE MCREYNOLDS.  WHAT POWER IS THERE IN A STATE GOVERNMENT OR
FEDERAL GOVERNMENT OR ANY OTHER GOVERNMENT TO REPUDIATE DEBTS? 

MR. CHILDERS.  I THINK THAT IS ANSWERED.  I DON'T THINK THERE IS ANY
POWER, AND I DON'T THINK THE POWER OUGHT TO BE THERE.  AS A MATTER OF
ECONOMICS, I BELIEVE IT WOULD DO MUCH MORE HARM TO THESE DISTRICTS THAN
IT COULD POSSIBLY DO GOOD.  AND IF THE POWER EXISTED, THE POWER MIGHT
BE EXERCISED ALL THE WAY. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THESE ARE DIRECT APPEALS FROM THE JUDGMENT OF THE DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF CALIFORNIA UNDER THE ACT OF AUGUST 24, 1937,
C. 754, 50 STAT. 751.  THEY PRESENT THE QUESTION OF THE CONSTITUTIONAL
VALIDITY OF THE ACT OF AUGUST 16, 1937, 50 STAT. 653, AMENDING THE
BANKRUPTCY ACT BY ADDING CHAPTER X PROVIDING FOR THE COMPOSITION OF
INDEBTEDNESS OF THE TAXING AGENCIES OR INSTRUMENTALITIES THEREIN
DESCRIBED.  A CERTIFICATE WAS ISSUED TO THE ATTORNEY GENERAL AND THE
UNITED STATES INTERVENED.  THE DISTRICT COURT HELD THE STATUTE INVALID
AS APPLIED TO THE APPELLANT AND DISMISSED ITS PETITION FOR
COMPOSITION.  THE COURT CONSIDERED ITSELF BOUND BY THE DECISION IN
ASHTON V. CAMERON COUNTY DISTRICT, 298 U.S. 513. 

APPELLANT, THE LINDSAY-STRATHMORE IRRIGATION DISTRICT, WAS ORGANIZED
IN THE YEAR 1915 UNDER THE CALIFORNIA IRRIGATION DISTRICT ACT OF MARCH
31, 1897(CAL.  STAT.  1897, P. 254).  IT COMPRISES ABOUT 15,260 ACRES
IN TULARE COUNTY.  IT IS AN IRRIGATION DISTRICT AND TAXING AGENCY
CREATED FOR THE PURPOSE OF CONSTRUCTING AND OPERATING IRRIGATION
PROJECTS AND WORKS DEVOTED TO THE IMPROVEMENT OF LANDS FOR AGRICULTURAL
PURPOSES.  ON SEPTEMBER 21, 1937, IT PRESENTED ITS PETITION FOR THE
CONFIRMATION OF A PLAN OF COMPOSITION.  THE PETITION ALLEGED
INSOLVENCY; THAT ITS INDEBTEDNESS CONSISTED OF OUTSTANDING BONDS
AGGREGATING $1,427,000 IN PRINCIPAL, WITH UNPAID INTEREST OF
$439,085.15; THAT NO INTEREST OR PRINCIPAL FALLING DUE SINCE JULY 1,
1933, HAD BEEN PAID; THAT THE LOW PRICE OF AGRICULTURAL PRODUCTS HAD
PREVENTED THE OWNERS OF LAND WITHIN THE IRRIGATION DISTRICT FROM
MEETING THEIR ASSESSMENTS; THAT UPON THE ASSESSMENT LEVIED BY THE
DISTRICT IN THE YEAR 1932 THERE WAS A DELINQUENCY OF 47 PER CENT. AND
THAT SINCE THAT YEAR THERE HAD BEEN LEVIED ONLY AN ASSESSMENT OF
SUFFICIENT AMOUNT TO MAINTAIN AND OPERATE ITS WORKS; THAT THE
DISTRICT'S PLAN FOR THE COMPOSITION OF ITS DEBTS PROVIDED FOR THE
PAYMENT IN CASH OF A SUM EQUAL TO 59.978 CENTS FOR EACH DOLLAR OF THE
PRINCIPAL AMOUNT OF ITS OUTSTANDING BONDS IN SATISFACTION OF ALL
AMOUNTS DUE; THAT CREDITORS OWNING ABOUT 87 PER CENT. IN THE PRINCIPAL
AMOUNT OF THE BONDS HAD ACCEPTED THE PLAN AND CONSENTED TO THE FILING
OF THE PETITION; AND THAT PAYMENT OF THE AMOUNT REQUIRED WAS TO BE MADE
FROM THE PROCEEDS OF A LOAN WHICH THE RECONSTRUCTION FINANCE
CORPORATION HAD AGREED TO MAKE UPON NEW REFUNDING SERIAL BONDS EQUAL TO
THE AMOUNT BORROWED AND BEARING INTEREST AT FOUR PER CENT. 

THE DISTRICT COURT APPROVED THE PETITION AS FILED IN GOOD FAITH AND
DIRECTED THE CREDITORS TO SHOW CAUSE WHY AN INJUNCTION SHOULD NOT ISSUE
STAYING THE COMMENCEMENT OF SUITS UPON THE SECURITIES AFFECTED BY THE
PLAN.  THE APPELLEES AS BONDHOLDERS APPEARED AND MOVED TO DISMISS THE
PETITION UPON THE GROUND THAT CHAPTER X OF THE BANKRUPTCY ACT VIOLATED
THE FIFTH AND TENTH AMENDMENTS OF THE FEDERAL CONSTITUTION.  IT
APPEARED FROM THE RETURN TO THE ORDER TO SHOW CAUSE THAT THESE
CREDITORS HAD OBTAINED AN ALTERNATIVE WRIT OF MANDATE FROM THE STATE
COURT DIRECTING THE COUNTY BOARD OF SUPERVISORS TO LEVY AN ASSESSMENT
UPON THE LANDS WITHIN THE DISTRICT SUFFICIENT TO PAY THE AMOUNTS DUE
THE COMPLAINING CREDITORS, AND THAT THE PROCEEDINGS IN THAT COURT HAD
BEEN SUSPENDED PENDING THE PROCEEDING IN THE BANKRUPTCY COURT. 

FIRST.  CHAPTER X OF THE BANKRUPTCY ACT IS LIMITED TO VOLUNTARY
PROCEEDINGS FOR THE COMPOSITION OF DEBTS.  ASIDE FROM THE QUESTION AS
TO THE POWER OF THE CONGRESS TO PROVIDE THIS METHOD OF RELIEF FOR THE
DESCRIBED TAXING AGENCIES, IT IS WELL SETTLED THAT A PROCEEDING FOR
COMPOSITION IS IN ITS NATURE WITHIN THE FEDERAL BANKRUPTCY POWER. 
COMPOSITIONS WERE AUTHORIZED BY THE BANKRUPTCY ACT OF 1867, AS AMENDED
BY THE ACT OF 1874, C. 390, SEC. 17, 18 STAT. 182.  IT IS UNNECESSARY
TO THE VALIDITY OF SUCH A PROCEEDING THAT IT SHOULD RESULT IN AN
ADJUDICATION OF BANKRUPTCY.  IN RE REIMAN, 20 FED. CAS. 490, 496, 497;
CONTINENTAL NATIONAL BANK V. CHICAGO, R.I. & P. RY. CO., 294 U.S. 648,
672, 673.  IN THE CONTINENTAL BANK CASE, IN THE COURSE OF A FULL
CONSIDERATION OF THE SCOPE OF THE FEDERAL BANKRUPTCY POWER AND OF THE
EVOLUTION OF ITS EXERCISE, WE SAID: 

"THE CONSTITUTIONALITY OF THE OLD PROVISION FOR A COMPOSITION IS NOT
OPEN TO DOUBT.  IN RE REIMAN, 20 FED. CAS. 490, 496-497, CITED WITH
APPROVAL IN HANOVER NATIONAL BANK V. MOYSES, SUPRA. (186 U.S. AT P.
187.)  THAT PROVISION WAS THERE SUSTAINED UPON THE BROAD GROUND THAT
THE 'SUBJECT OF BANKRUPTCIES' WAS NOTHING LESS THAN 'THE SUBJECT OF THE
RELATIONS BETWEEN AN INSOLVENT OR NONPAYING OR FRAUDULENT DEBTOR, AND
HIS CREDITORS, EXTENDING TO HIS AND THEIR RELIEF.'  THAT IT WAS NOT
NECESSARY FOR THE PROCEEDINGS TO BE CARRIED THROUGH IN BANKRUPTCY WAS
HELD NOT TO WARRANT THE OBJECTION THAT THE PROVISION DID NOT CONSTITUTE
A LAW ON THE SUBJECT OF BANKRUPTCIES." 

SECOND.  IT IS UNNECESSARY TO CONSIDER THE QUESTION WHETHER CHAPTER X
WOULD BE VALID AS APPLIED TO THE IRRIGATION DISTRICT IN THE ABSENCE OF
THE CONSENT OF THE STATE WHICH CREATED IT, FOR THE STATE HAS GIVEN ITS
CONSENT.  WE THINK THAT THIS SUFFICIENTLY APPEARS FROM THE STATUTE OF
CALIFORNIA ENACTED IN 1934.  LAWS OF 1934, EX. SESS., CH. 4.  THIS
STATUTE (SEC. 1) ADOPTS THE DEFINITION OF "TAXING DISTRICTS" AS
DESCRIBED IN AN AMENDMENT OF THE BANKRUPTCY ACT, TO WIT CHAPTER IX
APPROVED MAY 24, 1934, AND FURTHER PROVIDES THAT THE BANKRUPTCY ACT AND
"ACTS AMENDATORY AND SUPPLEMENTARY THERETO, AS THE SAME MAY BE AMENDED
FROM TIME TO TIME, ARE HEREIN REFERRED TO AS THE 'FEDERAL BANKRUPTCY
STATUTE'."  CHAPTER X OF THE BANKRUPTCY ACT IS AN AMENDMENT AND APPEARS
TO BE EMBRACED WITHIN THE STATE'S DEFINITION.  WE HAVE NOT BEEN
REFERRED TO ANY DECISION TO THE CONTRARY.  SECTION 3 OF THE STATE ACT
THEN PROVIDES THAT ANY TAXING DISTRICT IN THE STATE IS AUTHORIZED TO
FILE THE PETITION MENTIONED IN THE "FEDERAL BANKRUPTCY STATUTE." 
SUBSEQUENT SECTIONS EMPOWER THE TAXING DISTRICT UPON THE CONDITIONS
STATED TO CONSUMMATE A PLAN OF READJUSTMENT IN THE EVENT OF ITS
CONFIRMATION BY THE FEDERAL COURT.  THE STATUTE CONCLUDES WITH A
STATEMENT OF THE REASONS FOR ITS PASSAGE, AS FOLLOWS: 

"THERE EXIST THROUGHOUT THE STATE OF CALIFORNIA ECONOMIC CONDITIONS
WHICH MAKE IT IMPOSSIBLE FOR PROPERTY OWNERS TO PAY THEIR TAXES AND
SPECIAL ASSESSMENTS LEVIED UPON REAL OR TAXABLE PROPERTY.  THE BURDEN
OF SUCH TAXES AND SPECIAL ASSESSMENTS IS SO ONEROUS IN AMOUNT THAT
GREAT DELINQUENCIES HAVE OCCURRED IN THE COLLECTION THEREOF AND
SERIOUSLY AFFECT THE ABILITY OF TAXING DISTRICTS TO OBTAIN THE REVENUE
NECESSARY TO CONDUCT GOVERNMENTAL FUNCTIONS AND TO PAY OBLIGATIONS
REPRESENTED BY BONDS.  IT IS ESSENTIAL THAT FINANCIAL RELIEF, AS SET
FORTH IN THIS ACT, BE IMMEDIATELY AFFORDED TO SUCH TAXING DISTRICTS IN
ORDER TO AVOID SERIOUS IMPAIRMENT OF THEIR TAXING SYSTEMS, WITH
CONSEQUENT CRIPPLING OF THE LOCAL GOVERNMENTAL FUNCTIONS OF THE STATE. 
THIS ACT WILL AID IN ACCOMPLISHING THIS NECESSARY RESULT AND SHOULD
THEREFORE GO INTO EFFECT IMMEDIATELY." 

WHILE THE FACTS THUS STATED RELATED TO CONDITIONS IN CALIFORNIA,
SIMILAR CONDITIONS EXISTED IN OTHER PARTS OF THE COUNTRY AND IT WAS
THIS SERIOUS SITUATION WHICH LED THE CONGRESS TO ENACT CHAPTER IX AND
LATER CHAPTER X. FN1 

OUR ATTENTION HAS BEEN CALLED TO THE DIFFERENCE BETWEEN SEC. 80(K) OF
CHAPTER IX AND SEC. 83(I) OF CHAPTER X OF THE BANKRUPTCY ACT IN THE
OMISSION FROM THE LATTER OF THE PROVISION REQUIRING THE APPROVAL OF THE
PETITION BY A GOVERNMENTAL AGENCY OF THE STATE WHENEVER SUCH APPROVAL
IS NECESSARY BY VIRTUE OF THE LOCAL LAW.  WE ATTACH NO IMPORTANCE TO
THIS OMISSION.  IT IS IMMATERIAL, IF THE CONSENT OF THE STATE IS NOT
REQUIRED TO MAKE THE FEDERAL PLAN EFFECTIVE, AND IT IS EQUALLY
IMMATERIAL IF THE CONSENT OF THE STATE HAS BEEN GIVEN, AS WE THINK IT
HAS IN THIS CASE.  IT SHOULD ALSO BE OBSERVED THAT CHAPTER X, SEC.
83(E) PROVIDES AS A CONDITION OF CONFIRMATION OF A PLAN OF COMPOSITION
THAT IT MUST APPEAR THAT THE PETITIONER "IS AUTHORIZED BY LAW TO TAKE
ALL ACTION NECESSARY TO BE TAKEN BY IT TO CARRY OUT THE PLAN," AND, IF
THE JUDGE IS NOT SATISFIED ON THAT POINT AS WELL AS ON THE OTHERS
MENTIONED, HE MUST ENTER AN ORDER DISMISSING THE PROCEEDING.  THE
PHRASE "AUTHORIZED BY LAW" MANIFESTLY REFERS TO THE LAW OF THE STATE. 

THIRD.  WE ARE THUS BROUGHT TO THE INQUIRY WHETHER THE EXERCISE OF
THE FEDERAL BANKRUPTCY POWER IN DEALING WITH A COMPOSITION OF THE DEBTS
OF THE IRRIGATION DISTRICT, UPON ITS VOLUNTARY APPLICATION AND WITH THE
STATE'S CONSENT, MUST BE DEEMED TO BE AN UNCONSTITUTIONAL INTERFERENCE
WITH THE ESSENTIAL INDEPENDENCE OF THE STATE AS PRESERVED BY THE
CONSTITUTION. 

IN ASHTON V. CAMERON COUNTY DISTRICT, SUPRA, THE COURT CONSIDERED
THAT THE PROVISIONS OF CHAPTER IX AUTHORIZING THE BANKRUPTCY COURT TO
ENTERTAIN PROCEEDINGS FOR THE "READJUSTMENT OF THE DEBTS" OF "POLITICAL
SUBDIVISIONS" OF A STATE "MIGHT MATERIALLY RESTRICT ITS CONTROL OVER
ITS FISCAL AFFAIRS," AND WAS THEREFORE INVALID; THAT IF OBLIGATIONS OF
STATES OR THEIR POLITICAL SUBDIVISIONS MIGHT BE SUBJECTED TO THE
INTERFERENCE CONTEMPLATED BY CHAPTER IX, THEY WOULD NO LONGER BE "FREE
TO MANAGE THEIR OWN AFFAIRS." 

IN ENACTING CHAPTER X THE CONGRESS WAS ESPECIALLY SOLICITOUS TO
AFFORD NO GROUND FOR THIS OBJECTION.  IN THE REPORT OF THE COMMITTEE ON
THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES,  FN2 WHICH WAS ADOPTED
BY THE SENATE COMMITTEE ON THE JUDICIARY,  FN3  IN DEALING WITH THE
BILL PROPOSING TO ENACT CHAPTER X, THE SUBJECT WAS CAREFULLY
CONSIDERED.  THE COMMITTEE SAID: 

"COMPOSITIONS ARE APPROVABLE ONLY WHEN THE DISTRICTS OR AGENCIES FILE
VOLUNTARY PROCEEDINGS IN COURTS OF BANKRUPTCY, ACCOMPANIED BY PLANS
APPROVED BY 51 PER CENT OF ALL THE CREDITORS OF THE DISTRICT OR AGENCY,
AND BY EVIDENCE OF GOOD FAITH.  EACH PROCEEDING IS SUBJECT TO AMPLE
NOTICE TO CREDITORS, THOROUGH HEARINGS, COMPLETE INVESTIGATIONS, AND
APPEALS FROM INTERLOCUTORY AND FINAL DECREES.  THE PLAN OF COMPOSITION
CANNOT BE CONFIRMED UNLESS ACCEPTED IN WRITING BY CREDITORS HOLDING AT
LEAST 66 2/3 PERCENT OF THE AGGREGATE AMOUNT OF THE INDEBTEDNESS OF THE
PETITIONING DISTRICT OR TAXING AGENCY, AND UNLESS THE JUDGE IS
SATISFIED THAT THE TAXING DISTRICT IS AUTHORIZED BY LAW TO CARRY OUT
THE PLAN, AND UNTIL A SPECIFIC FINDING BY THE COURT THAT THE PLAN OF
COMPOSITION IS FAIR, EQUITABLE, AND FOR THE BEST INTERESTS OF THE
CREDITORS.  ... 

"THE COMMITTEE ON THE JUDICIARY IS NOT UNMINDFUL OF THE SWEEPING
CHARACTER OF THE HOLDING OF THE SUPREME COURT ABOVE REFERRED TO (IN THE
ASHTON CASE), AND BELIEVES THAT H.R. 5969 IS NOT INVALID OR CONTRARY TO
THE REASONING OF THE MAJORITY OPINION.  ... 

"THE BILL HERE RECOMMENDED FOR PASSAGE EXPRESSLY AVOIDS ANY
RESTRICTION ON THE POWERS OF THE STATES OR THEIR ARMS OF GOVERNMENT IN
THE EXERCISE OF THEIR SOVEREIGN RIGHTS AND DUTIES.  NO INTERFERENCE
WITH THE FISCAL OR GOVERNMENTAL AFFAIRS OF A POLITICAL SUBDIVISION IS
PERMITTED.  THE TAXING AGENCY ITSELF IS THE ONLY INSTRUMENTALITY WHICH
CAN SEEK THE BENEFITS OF THE PROPOSED LEGISLATION.  NO INVOLUNTARY
PROCEEDINGS ARE ALLOWABLE, AND NO CONTROL OR JURISDICTION OVER THAT
PROPERTY AND THOSE REVENUES OF THE PETITIONING AGENCY NECESSARY FOR
ESSENTIAL GOVERNMENTAL PURPOSES IS CONFERRED BY THE BILL.  ... 
"THERE IS NO HOPE FOR RELIEF THROUGH STATUTES ENACTED BY THE STATES,
BECAUSE THE CONSTITUTION FORBIDS THE PASSING OF STATE LAWS IMPAIRING
THE OBLIGATIONS OF EXISTING CONTRACTS.  THEREFORE, RELIEF MUST COME
FROM CONGRESS, IF AT ALL.  THE COMMITTEE ARE NOT PREPARED TO ADMIT THAT
THE SITUATION PRESENTS A LEGISLATIVE NO-MAN'S LAND.  ...  IT IS THE
OPINION OF THE COMMITTEE THAT THE PRESENT BILL REMOVES THE OBJECTIONS
TO THE UNCONSTITUTIONAL STATUTE, AND GIVES A FORUM TO ENABLE THOSE
DISTRESSED TAXING AGENCIES WHICH DESIRE TO ADJUST THEIR OBLIGATIONS AND
WHICH ARE CAPABLE OF REORGANIZATION, TO MEET THEIR CREDITORS UNDER
NECESSARY JUDICIAL CONTROL AND GUIDANCE AND FREE FROM COERCION, AND TO
AFFECT SUCH ADJUSTMENT ON A PLAN DETERMINED TO BE MUTUALLY
ADVANTAGEOUS." 

WE ARE OF THE OPINION THAT THE COMMITTEE'S POINTS ARE WELL TAKEN AND
THAT CHAPTER X IS A VALID ENACTMENT.  THE STATUTE IS CAREFULLY DRAWN SO
AS NOT TO IMPINGE UPON THE SOVEREIGNTY OF THE STATE.  THE STATE RETAINS
CONTROL OF ITS FISCAL AFFAIRS.  THE BANKRUPTCY POWER IS EXERCISED IN
RELATION TO A MATTER NORMALLY WITHIN ITS PROVINCE AND ONLY IN A CASE
WHERE THE ACTION OF THE TAXING AGENCY IN CARRYING OUT A PLAN OF
COMPOSITION APPROVED BY THE BANKRUPTCY COURT IS AUTHORIZED BY STATE
LAW.  IT IS OF THE ESSENCE OF SOVEREIGNTY TO BE ABLE TO MAKE CONTRACTS
AND GIVE CONSENTS BEARING UPON THE EXERTION OF GOVERNMENTAL POWER. 
THIS IS CONSTANTLY ILLUSTRATED IN TREATIES AND CONVENTIONS IN THE
INTERNATIONAL FIELD BY WHICH GOVERNMENTS YIELD THEIR FREEDOM OF ACTION
IN PARTICULAR MATTERS IN ORDER TO GAIN THE BENEFITS WHICH ACCRUE FROM
INTERNATIONAL ACCORD.  OPPENHEIM, INTERNATIONAL LAW, 4TH ED., VOL. 1,
SECS. 493, 494; HYDE, INTERNATIONAL LAW, VOL. 2, SEC. 489; PERRY V.
UNITED STATES, 294 U.S. 330, 353; STEWARD MACHINE CO. V. DAVIS, 301
U.S. 548, 597.  THE RESERVATION TO THE STATES BY THE TENTH AMENDMENT
PROTECTED, AND DID NOT DESTROY, THEIR RIGHT TO MAKE CONTRACTS AND GIVE
CONSENTS WHERE THAT ACTION WOULD NOT CONTRAVENE THE PROVISIONS OF THE
FEDERAL CONSTITUTION.  THE STATES WITH THE CONSENT OF CONGRESS MAY
ENTER INTO COMPACTS WITH EACH OTHER AND THE PROVISIONS OF SUCH COMPACTS
MAY LIMIT THE AGREEING STATES IN THE EXERCISE OF THEIR RESPECTIVE
POWERS.  CONST., ART. I, SEC. 10, SUBD. 3.  POOLE V. FLEEGER, 11 PET.
185, 209; RHODE ISLAND V. MASSACHUSETTS, 12 PET. 657, 725; HINDERLIDER
V. LA PLATA RIVER CO., POST, P. 92.  THE STATE IS FREE TO MAKE
CONTRACTS WITH INDIVIDUALS AND GIVE CONSENTS UPON WHICH THE OTHER
CONTRACTING PARTY MAY RELY WITH RESPECT TO A PARTICULAR USE OF
GOVERNMENTAL AUTHORITY.  SEE FLETCHER V. PECK, 6 CRANCH 87, 137; NEW
JERSEY V. WILSON, 7 CRANCH 164; DARTMOUTH COLLEGE V. WOODWARD, 4
WHEAT.  518, 643, 644; CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11 PET.
420, 549; JEFFERSON BRANCH BANK V. SKELLY, 1 BLACK 436, 446.  WHILE THE
INSTRUMENTALITIES OF THE NATIONAL GOVERNMENT ARE IMMUNE FROM TAXATION
BY A STATE, THE STATE MAY TAX THEM IF THE NATIONAL GOVERNMENT CONSENTS
(BALTIMORE NATIONAL BANK V. STATE TAX COMM'N, 297 U.S. 209, 211, 212)
AND BY A PARITY OF REASONING THE CONSENT OF THE STATE COULD REMOVE THE
OBSTACLE TO THE TAXATION BY THE FEDERAL GOVERNMENT OF STATE AGENCIES TO
WHICH THE CONSENT APPLIED. 

NOR DID THE FORMATION OF AN INDESTRUCTIBLE UNION OF INDESTRUCTIBLE
STATES MAKE IMPOSSIBLE COOPERATION BETWEEN THE NATION AND THE STATES
THROUGH THE EXERCISE OF THE POWER OF EACH TO THE ADVANTAGE OF THE
PEOPLE WHO ARE CITIZENS OF BOTH.  WE HAD RECENT OCCASION TO CONSIDER
THAT QUESTION IN THE CASE OF STEWARD MACHINE CO. V. DAVIS, SUPRA, IN
RELATION TO THE OPERATION OF THE SOCIAL SECURITY ACT OF AUGUST 14,
1935.  49 STAT. 620.  THE QUESTION WAS RAISED WITH SPECIAL EMPHASIS IN
RELATION TO SEC. 904 OF THE STATUTE AND THE PARTS OF SEC. 903,
COMPLEMENTARY THERETO, BY WHICH THE SECRETARY OF THE TREASURY IS
AUTHORIZED TO RECEIVE AND HOLD IN THE UNEMPLOYMENT TRUST FUND ALL
MONEYS DEPOSITED THEREIN BY A STATE AGENCY FOR A STATE UNEMPLOYMENT
FUND AND TO INVEST IN OBLIGATIONS OF THE UNITED STATES SUCH PORTION OF
THE FUND AS IS NOT IN HIS JUDGMENT REQUIRED TO MEET CURRENT
WITHDRAWALS.  THE CONTENTION WAS THAT ALABAMA IN CONSENTING TO THAT
DEPOSIT HAD "RENOUNCED THE PLENITUDE OF POWER INHERENT IN HER
STATEHOOD."  301 U.S. AT PP. 595, 596.  WE FOUND THE CONTENTION TO BE
UNSOUND.  AS THE STATES WERE AT LIBERTY UPON OBTAINING THE CONSENT OF
CONGRESS TO MAKE AGREEMENTS WITH ONE ANOTHER, WE SAW NO ROOM FOR DOUBT
THAT THEY MAY DO THE LIKE WITH CONGRESS IF THE ESSENCE OF THEIR
STATEHOOD IS MAINTAINED WITHOUT IMPAIRMENT.  AND WE ADDED THAT "NOWHERE
IN OUR SCHEME OF GOVERNMENT - IN THE LIMITATIONS EXPRESS OR IMPLIED OF
OUR FEDERAL CONSTITUTION - DO WE FIND THAT SHE (THE STATE) IS
PROHIBITED FROM ASSENTING TO CONDITIONS THAT WILL ASSURE A FAIR AND
JUST REQUITAL FOR BENEFITS RECEIVED." 

IN THE INSTANT CASE WE HAVE COOPERATION TO PROVIDE A REMEDY FOR A
SERIOUS CONDITION IN WHICH THE STATES ALONE WERE UNABLE TO AFFORD
RELIEF.  IMPROVEMENT DISTRICTS, SUCH AS THE PETITIONER, WERE IN
DISTRESS.  ECONOMIC DISASTER HAD MADE IT IMPOSSIBLE FOR THEM TO MEET
THEIR OBLIGATIONS.  AS THE OWNERS OF PROPERTY WITHIN THE BOUNDARIES OF
THE DISTRICT COULD NOT PAY ADEQUATE ASSESSMENTS, THE POWER OF TAXATION
WAS USELESS.  THE CREDITORS OF THE DISTRICT WERE HELPLESS.  THE NATURAL
AND REASONABLE REMEDY THROUGH COMPOSITION OF THE DEBTS OF THE DISTRICT
WAS NOT AVAILABLE UNDER STATE LAW BY REASON OF THE RESTRICTION IMPOSED
BY THE FEDERAL CONSTITUTION UPON THE IMPAIRMENT OF CONTRACTS BY STATE
LEGISLATION.  THE BANKRUPTCY POWER IS COMPETENT TO GIVE RELIEF TO
DEBTORS IN SUCH A PLIGHT AND, IF THERE IS ANY OBSTACLE TO ITS EXERCISE
IN THE CASE OF THE DISTRICTS ORGANIZED UNDER STATE LAW IT LIES IN THE
RIGHT OF THE STATE TO OPPOSE FEDERAL INTERFERENCE.  THE STATE STEPS IN
TO REMOVE THAT OBSTACLE.  THE STATE ACTS IN AID, AND NOT IN DEROGATION,
OF ITS SOVEREIGN POWERS.  IT INVITES THE INTERVENTION OF THE BANKRUPTCY
POWER TO SAVE ITS AGENCY WHICH THE STATE ITSELF IS POWERLESS TO
RESCUE.  THROUGH ITS COOPERATION WITH THE NATIONAL GOVERNMENT THE
NEEDED RELIEF IS GIVEN.  WE SEE NO GROUND FOR THE CONCLUSION THAT THE
FEDERAL CONSTITUTION, IN THE INTEREST OF STATE SOVEREIGNTY, HAS REDUCED
BOTH SOVEREIGNS TO HELPLESSNESS IN SUCH A CASE. 

FOURTH.  AS THE BANKRUPTCY POWER MAY BE EXERTED TO GIVE EFFECT TO A
PLAN FOR THE COMPOSITION OF THE DEBTS OF AN INSOLVENT DEBTOR, WE FIND
NO MERIT IN APPELLANT'S OBJECTIONS UNDER THE FIFTH AMENDMENT.  IN RE
REIMAN, SUPRA; CONTINENTAL NATIONAL BANK V. CHICAGO, R.I. & P. RY. CO.,
SUPRA. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE COMMITTEE ON
THE JUDICIARY ON S. 1868 AND H.R. 5950, 1934, 73RD CONG., 2ND SESS.;
HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 1670,
ETC., 1933, 73RD CONG., 1ST SESS.; ASHTON V. CAMERON COUNTY DISTRICT,
298 U.S. 513, 533, 534. 

FN2  H. REP. NO. 517, 75TH CONG., 1ST SESS. 

FN3  SEN. REP. NO. 911, 75TH CONG., 1ST SESS. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER ARE OF THE OPINION THAT
THE PRINCIPLE APPROVED IN ASHTON V. CAMERON COUNTY DISTRICT, 298 U.S.
513, IS CONTROLLING HERE AND REQUIRES AFFIRMATION OF THE QUESTIONED
DECREE. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :







INTERSTATE CIRCUIT V. U.S., 304 U.S. 55 


NO. 709.  ARGUED APRIL 5, 1938.  - DECIDED APRIL 25, 1938.  - DECREE IN
20 F.SUPP.  868, SET ASIDE AND CAUSE REMANDED FOR STATEMENT OF FINDINGS
OF FACT AND CONCLUSIONS OF LAW. 


1.  UNDER EQUITY RULE 70 1/2 IT IS THE DUTY OF THE DISTRICT COURT TO
MAKE SPECIAL, FORMAL FINDINGS OF FACT, AND STATE SEPARATELY ITS
CONCLUSIONS OF LAW THEREON, DETERMINING ALL THE ISSUES IN THE CASE. 
THE OPINION OF THAT COURT IN THIS CASE WAS NOT A SUBSTITUTE. 

2.  COMPLIANCE WITH THIS RULE IS PARTICULARLY IMPORTANT IN AN
ANTITRUST CASE WHICH COMES TO THIS COURT BY DIRECT APPEAL FROM THE
TRIAL COURT.  P. 56. 

INTERSTATE CIRCUIT, INC., ET AL. V. UNITED STATES* . 

*TOGETHER WITH NO. 710, PARAMOUNT PICTURES DISTRIBUTING CO. ET AL. V.
UNITED STATES, ALSO ON APPEAL FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF TEXAS. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF TEXAS. 

PER CURIAM. 

THE GOVERNMENT BROUGHT THIS SUIT FOR AN INJUNCTION AGAINST THE
CARRYING OUT OF AN ALLEGED CONSPIRACY, IN RESTRAINT OF INTERSTATE
COMMERCE, BETWEEN DISTRIBUTORS AND EXHIBITORS OF MOTION PICTURE FILMS. 
THE RESTRAINT WAS ALLEGED TO CONSIST IN PROVISIONS IN LICENSE
AGREEMENTS WHICH PREVENTED ANY "FEATURE PICTURE" OF THE DISTRIBUTORS,
WHICH HAD BEEN SHOWN "FIRST-RUN" IN A THEATER OF THE DEFENDANT
EXHIBITOR AT AN ADMISSION PRICE OF 40 CENTS OR MORE, FROM THEREAFTER
BEING EXHIBITED IN THE SAME LOCALITY AT AN ADMISSION PRICE OF LESS THAN
25 CENTS OR ON THE SAME PROGRAM WITH ANOTHER FEATURE PICTURE. 

THE EVIDENCE WAS PRESENTED BY AN AGREED STATEMENT OF CERTAIN FACTS
AND BY ORAL TESTIMONY ON BEHALF OF EACH PARTY.  THE DISTRICT COURT
ENTERED A FINAL DECREE ADJUDGING THAT IN MAKING THE RESTRICTIVE
AGREEMENTS THE DISTRIBUTORS HAD ENGAGED IN A CONSPIRACY WITH THE
EXHIBITOR, INTERSTATE CIRCUIT, INC. AND ITS OFFICERS, IN VIOLATION OF
THE ANTI-TRUST ACT AND GRANTING A PERMANENT INJUNCTION AGAINST THE
ENFORCEMENT OF THE RESTRICTIONS.  20 F.SUPP.  868.  THE CASE COMES HERE
ON DIRECT APPEAL.  ACTS OF FEB. 11, 1903, C. 544, 32 STAT. 823;
FEBRUARY 13, 1925, C. 229.  28 U.S.C. 345. 

EQUITY RULE 70 1/2 PROVIDES: 

"IN DECIDING SUITS IN EQUITY, INCLUDING THOSE REQUIRED TO BE HEARD
BEFORE THREE JUDGES, THE COURT OF FIRST INSTANCE SHALL FIND THE FACTS
SPECIALLY AND STATE SEPARATELY ITS CONCLUSIONS OF LAW THEREON; ... 

"SUCH FINDINGS AND CONCLUSIONS SHALL BE ENTERED OF RECORD AND, IF AN
APPEAL IS TAKEN FROM THE DECREE, SHALL BE INCLUDED BY THE CLERK IN THE
RECORD WHICH IS CERTIFIED TO THE APPELLATE COURT UNDER RULES 75 AND
76." 

THE DISTRICT COURT DID NOT COMPLY WITH THIS RULE.  THE COURT MADE NO
FORMAL FINDINGS.  THE COURT DID NOT FIND THE FACTS SPECIALLY AND STATE
SEPARATELY ITS CONCLUSIONS OF LAW AS THE RULE REQUIRED.  THE STATEMENTS
IN THE DECREE THAT IN MAKING THE RESTRICTIVE AGREEMENTS THE PARTIES HAD
ENGAGED IN AN ILLEGAL CONSPIRACY WERE BUT ULTIMATE CONCLUSIONS AND DID
NOT DISPENSE WITH THE NECESSITY OF PROPERLY FORMULATING THE UNDERLYING
FINDINGS OF FACT. 

THE OPINION OF THE COURT WAS NOT A SUBSTITUTE FOR THE REQUIRED
FINDINGS.  A DISCUSSION OF PORTIONS OF THE EVIDENCE AND THE COURT'S
REASONING IN ITS OPINION DO NOT CONSTITUTE THE SPECIAL AND FORMAL
FINDINGS BY WHICH IT IS THE DUTY OF THE COURT APPROPRIATELY AND
SPECIFICALLY TO DETERMINE ALL THE ISSUES WHICH THE CASE PRESENTS.  THIS
IS AN ESSENTIAL AID TO THE APPELLATE COURT IN REVIEWING AN EQUITY CASE
(RAILROAD COMMISSION V. MAXCY, 281 U.S. 82, AND CASES CITED) AND
COMPLIANCE WITH THE RULE IS PARTICULARLY IMPORTANT IN AN ANTI-TRUST
CASE WHICH COMES TO THIS COURT BY DIRECT APPEAL FROM THE TRIAL COURT. 

THE GOVERNMENT CONTENDS THAT THE DISTRIBUTORS WERE PARTIES TO A
COMMON PLAN CONSTITUTING A CONSPIRACY IN RESTRAINT OF COMMERCE; THAT
EACH DISTRIBUTOR WOULD BENEFIT BY UNANIMOUS ACTION, WHEREAS OTHERWISE
THE RESTRICTIONS WOULD PROBABLY INJURE THE DISTRIBUTORS WHO IMPOSED
THEM, AND THAT PRUDENCE DICTATED THAT "NO DISTRIBUTOR AGREE TO IMPOSE
THE RESTRICTIONS IN THE ABSENCE OF AGREEMENT OR UNDERSTANDING THAT HIS
FELLOWS WOULD DO LIKEWISE"; THAT THE RESTRAINTS WERE UNREASONABLE AND
THAT THEY HAD THE PURPOSE AND EFFECT OF RAISING AND MAINTAINING THE
LEVEL OF ADMISSION PRICES; THAT EVEN IF THE DISTRIBUTORS ACTED
INDEPENDENTLY AND NOT AS PARTICIPANTS IN A JOINT UNDERTAKING, STILL THE
RESTRAINTS WERE UNREASONABLE IN THEIR EFFECT UPON THE EXHIBITOR'S
COMPETITORS. 

APPELLANTS, ASSERTING COPYRIGHT PRIVILEGES, CONTEND THAT THE
RESTRICTIONS WERE REASONABLE; THAT THEY WERE INTENDED SIMPLY TO PROTECT
THE LICENSEE FROM WHAT WOULD OTHERWISE BE AN UNREASONABLE INTERFERENCE
BY THE DISTRIBUTORS WITH THE ENJOYMENT OF THE GRANTED RIGHT OF
EXHIBITION; THAT THERE WAS NO COMBINATION OR CONSPIRACY AMONG THE
DISTRIBUTORS; THAT IT WAS TO THE INDEPENDENT ADVANTAGE OF EACH
DISTRIBUTOR TO IMPOSE THE RESTRICTIONS IN ITS OWN AGREEMENT AND THAT
THE CONTENTION THAT LESS THAN SUBSTANTIALLY UNANIMOUS ACTION WOULD HAVE
INJURED THE DISTRIBUTORS IN MAKING SUCH AGREEMENTS WAS CONTRARY TO THE
EVIDENCE; AND THAT THE RESTRICTIONS DID NOT HAVE AN INJURIOUS EFFECT. 

WE INTIMATE NO OPINION UPON ANY OF THE QUESTIONS RAISED BY THESE
RIVAL CONTENTIONS, BUT THEY POINT THE IMPORTANCE OF SPECIAL AND
ADEQUATE FINDINGS IN ACCORDANCE WITH THE PRESCRIBED EQUITY PRACTICE. 

THE DECREE OF THE DISTRICT COURT IS SET ASIDE AND THE CAUSE IS
REMANDED WITH DIRECTIONS TO THE COURT TO STATE ITS FINDINGS OF FACT AND
CONCLUSIONS OF LAW AS REQUIRED BY EQUITY RULE 70 1/2.  IT IS SO
ORDERED. 

MR. JUSTICE STONE AND MR. JUSTICE BLACK THINK THAT THE FINDINGS IN
THE OPINION AND DECREE BELOW, WHILE INFORMAL, ARE SUFFICIENT FOR
PURPOSES OF DECISION, AND THAT THE CASE SHOULD THEREFORE BE DECIDED NOW
WITHOUT FURTHER PROCEEDINGS BELOW; THE MORE SO BECAUSE OF THE PUBLIC
INTEREST INVOLVED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :























B. & O.R. CO. V. U.S., 304 U.S. 58 


NO. 638.  ARGUED MARCH 30, 1938.  - DECIDED APRIL 25, 1938.  -
AFFIRMED. 


IN A SUIT TO SET ASIDE ORDERS OF THE INTERSTATE COMMERCE COMMISSION
AFFECTING RATES ON COKE, HELD: 

1.  UNNECESSARY TO PASS UPON THE VALIDITY OF AN ORDER CANCELING
CERTAIN SCHEDULES AND FIXING FUTURE MAXIMUM RATES, WHICH ORDER HAD
LATER BEEN SUPPLEMENTED BY ANOTHER OF THE ORDERS ATTACKED.  P. 59. 

2.  A CONSTRUCTION OF AN ORDER, ADOPTED BY THE COMMISSION, AND
RENDERING IT VALID, IS TO BE ACCEPTED RATHER THAN ANOTHER CONSTRUCTION
WHICH EXTENDS IT BEYOND THE COMMISSION'S JURISDICTION.  P. 60. 

3.  OBJECTIONS TO AN ORDER, THAT IT IS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE, DISREGARDS ORDINARY STANDARDS FOR DETERMINING REASONABLENESS
OF RATES, IS NOT SUPPORTED BY NECESSARY FINDINGS, AND REPRESENTS A MERE
ATTEMPT TO EQUALIZE GEOGRAPHICAL AND TRANSPORTATION DISADVANTAGES,
FORTUNE AND OPPORTUNITIES, ARE ANSWERED IN THIS CASE BY FINDINGS OF THE
COURT BELOW, ADEQUATELY SUPPORTED.  P. 60. 

BALTIMORE & OHIO RAILROAD CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE DISMISSING A BILL TO SET ASIDE ORDERS OF THE
INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

APPELLANTS, NINETEEN RAILROADS OPERATING WITHIN WHAT IS KNOWN AS
CENTRAL TERRITORY - OHIO, INDIANA, ILLINOIS AND MICHIGAN - BY THEIR
BILL FILED IN THE DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS, JULY
22, 1936, CHALLENGED THE VALIDITY OF TWO INTERSTATE COMMERCE COMMISSION
ORDERS AFFECTING THE RATE STRUCTURE ON COKE MOVING INTO THAT TERRITORY
FROM SOUTHERN POINTS.  QUESTIONS IN RESPECT OF THESE RATES HAVE OFTEN
BEEN BEFORE THE COMMISSION.  THE COURT MADE FINDINGS OF FACT UPON THE
EVIDENCE AND DISMISSED THE BILL WITHOUT OPINION. 

THE FIRST CHALLENGED ORDER, DATED MARCH 11, 1935, FOLLOWED AN EARLIER
SUSPENSION OF CERTAIN PROPOSED SCHEDULES AND AN INVESTIGATION.  IT
CANCELLED THESE SCHEDULES AND DETERMINED WHAT THEREAFTER WOULD BE
MAXIMUM REASONABLE RATES UPON A MILEAGE BASIS.  SUBSEQUENTLY, THE
PROCEEDINGS HAVING BEEN REOPENED, THIS ORDER WAS MODIFIED AND
REAFFIRMED.  IN THE CIRCUMSTANCES, WE THINK THE COURT BELOW PROPERLY
DECLINED TO PASS UPON ITS VALIDITY. 

THE SECOND CHALLENGED ORDER, APRIL 30, 1936, FOLLOWED ONE ENTERED
APRIL 15, 1936, WHICH UPON PETITION AND REPLIES REOPENED THE
PROCEEDINGS FOR RECONSIDERATION ON THE RECORD AS IT THEN STOOD.  THE
LATER ORDER AFFIRMED FORMER FINDINGS THAT THE SCHEDULES SUSPENDED BY
THE ONE OF MARCH 11, 1935, HAD NOT BEEN JUSTIFIED, AND PRESCRIBED
FUTURE MAXIMUM RATES UPON A MILEAGE BASIS.  THESE WERE LOWER (SOME TEN
PER CENT.) THAN THOSE AUTHORIZED PRIOR TO 1935. 

HERE, COUNSEL SPECIALLY INSIST THIS SECOND ORDER EXCEEDED THE
JURISDICTION OF THE COMMISSION SINCE IT UNDERTOOK TO DETERMINE RATES
CONCERNING WHICH THERE HAD BEEN NO PROPER NOTICE OR OPPORTUNITY FOR
HEARING.  BUT THIS CONTENTION RESTS UPON AN ASSUMED CONSTRUCTION OF THE
ORDER NOT OBVIOUSLY CORRECT.  THE COMMISSION HAS NOT SO CONSTRUED IT,
NOR HAS THAT BODY BEEN ASKED SO TO DO, OR FOR ANY FURTHER ACTION IN
RESPECT OF IT.  ANOTHER CONSTRUCTION BRINGS THE ORDER CLEARLY WITHIN
THE JURISDICTION ASSUMED BY THE COMMISSION.  IN THE CIRCUMSTANCES
APPELLANTS CANNOT PREVAIL ON THIS POINT. 

APPELLANTS FURTHER URGE THAT THE ORDER IS CONTRARY TO THE WEIGHT OF
THE EVIDENCE, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DISREGARDS
ORDINARY STANDARDS FOR DETERMINING REASONABLENESS OF RATES, IS NOT
SUPPORTED BY NECESSARY FINDINGS, AND REPRESENTS A MERE ATTEMPT TO
EQUALIZE GEOGRAPHICAL AND TRANSPORTATION DISADVANTAGES, FORTUNE AND
OPPORTUNITIES.  THE FINDINGS BY THE COURT BELOW WE THINK ARE ADEQUATELY
SUPPORTED BY THE RECORD.  THEY NEGATIVE THESE CLAIMS AND LEAVE NO
SUFFICIENT BASIS FOR OUR INTERFERENCE WITH THE ACTION THERE TAKEN. 

THE CHALLENGED JUDGMENT MUST BE AFFIRMED. 

MR. JUSTICE BLACK AND MR. JUSTICE CARDOZO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CAUSE. 
..END :














ARKANSAS GAS CO. V. DEP'T, 304 U.S. 61 


NO. 645.  ARGUED MARCH 31, 1938.  - DECIDED APRIL 25, 1938.  - 194 ARK.
354 - 108 S.W.2D 586, AFFIRMED. 


1.  A CORPORATION ACQUIRED NATURAL GAS IN LOUISIANA, PIPED IT INTO
ARKANSAS, AND THERE DISPOSED OF IT, PARTLY BY SELLING IT AS A PUBLIC
UTILITY TO CONSUMERS IN CITIES - AN ACTIVITY CARRIED ON THROUGH A
SPECIAL DEPARTMENT OF THE CORPORATE BUSINESS - AND PARTLY BY SALES TO
SELECTED INDUSTRIAL AND OTHER CUSTOMERS, UNDER SPECIAL CONTRACTS MADE
IN LOUISIANA, DELIVERY OF GAS BEING MADE TO THEM DIRECTLY FROM THE MAIN
PIPELINE, OR THROUGH CONNECTING SPURS.  HELD, THAT A GENERAL ORDER OF
AN ARKANSAS STATE AGENCY REQUIRING ALL PUBLIC UTILITIES TO FILE
SCHEDULES OF THEIR RATES IS NOT UNCONSTITUTIONAL WHEN APPLIED TO THE
SALES UNDER THE SPECIAL CONTRACTS EVEN THOUGH THEY BE SALES IN
INTERSTATE COMMERCE.  P. 62. 

IN THE CIRCUMSTANCES IT MAY BE HIGHLY IMPORTANT FOR THE STATE, WHICH
REGULATES LOCAL RATES, TO HAVE INFORMATION OF ALL THE OPERATIONS. 
MERELY REQUIRING COMPREHENSIVE REPORTS OF SUCH OPERATIONS WOULD NOT
MATERIALLY BURDEN OR UNDULY INTERFERE WITH INTERSTATE COMMERCE. 

2.  THE COURT IS NOT CALLED UPON TO DECIDE WHETHER THE SALES UNDER
THE SPECIAL CONTRACTS ARE SUBJECT TO RATE REGULATION BY ARKANSAS.  P.
63. 

ARKANSAS LOUISIANA GAS CO. V. DEPARTMENT OF PUBLIC UTILITIES ET AL. 

APPEAL FROM THE SUPREME COURT OF ARKANSAS. 

APPEAL FROM A JUDGMENT WHICH REVERSED THAT OF A COURT OF FIRST
INSTANCE HOLDING INVALID AN ORDER OF THE STATE DEPARTMENT OF PUBLIC
UTILITIES.  THE CASE GOT INTO THE LATTER COURT BY PETITION FOR A REVIEW
OF THE ORDER. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

APPELLANT, A DELAWARE CORPORATION, LAWFULLY PURCHASES AND PRODUCES
NATURAL GAS IN TEXAS AND LOUISIANA AND THEREAFTER TRANSPORTS AND
DELIVERS IT THROUGH PIPE LINES TO SELECTED INDUSTRIES AND PUBLIC
UTILITY DISTRIBUTING CORPORATIONS - SO-CALLED "PIPE LINE CUSTOMERS" -
AT POINTS IN ARKANSAS.  THESE DELIVERIES ARE MADE UNDER CONTRACTS
ENTERED INTO AT SHREVEPORT, LOUISIANA, AND ARE EFFECTED BY TAPPING A
MAIN PIPE LINE OR THROUGH CONNECTING SPURS.  THEY AMOUNT ANNUALLY TO
SOME EIGHT BILLION CUBIC FEET. 

APPELLANT, BY ADMISSION, ALSO MAINTAINS A DISTRIBUTION DEPARTMENT,
THROUGH WHICH IT ACTS AS A PUBLIC UTILITY, FOR THE LOCAL SALE AND
DISTRIBUTION OF GAS IN MANY ARKANSAS TOWNS; BUT THIS ORGANIZATION IS
DISTINCT FROM THE ONE WHICH SUPPLIES PIPE LINE CUSTOMERS. 

THE ARKANSAS DEPARTMENT OF PUBLIC UTILITIES, PROCEEDING UNDER A LOCAL
STATUTE, IN APRIL 1935 ISSUED A GENERAL ORDER (NO. 13) REQUIRING PUBLIC
UTILITIES TO FILE, UPON SPECIFIED FORMS, SCHEDULES OF RATES, CHARGES,
ETC.  APPELLANT PRESENTED SUCH SCHEDULES FOR LOCAL UTILITY SERVICE IN
THE STATE, BUT DECLINED TO FILE COPIES OF CONTRACTS, AGREEMENTS, ETC.,
FOR SALES AND DELIVERIES TO PIPE LINE CUSTOMERS. 

THEREUPON THE DEPARTMENT ISSUED AN ORDER TO SHOW CAUSE FOR THIS
FAILURE.  IN RESPONSE APPELLANT "SET FORTH THAT THE SALE AND DELIVERY
OF GAS FROM ITS TEXAS AND LOUISIANA FIELDS TO ITS PIPE LINE AND
INDUSTRIAL CUSTOMERS IN ARKANSAS CONSTITUTE INTERSTATE COMMERCE, AND
THAT IN MAKING SUCH SALES AND DELIVERIES IT WAS AND IS NOT ACTING AS A
PUBLIC UTILITY, AND THAT ACCORDINGLY THE SALE AND DELIVERY OF SAID GAS
AND THE RATES, SCHEDULES AND CHARGES UPON WHICH THE SAME IS DELIVERED
AND SOLD WERE AND ARE NOT SUBJECT TO THE JURISDICTION OF THE DEPARTMENT
AND ARE BEYOND ITS POWER TO REGULATE, AND THAT ORDER NO. 13 IS NOT
LEGALLY APPLICABLE TO SAID BUSINESS." 

AFTER A HEARING UPON THE CITATION AND RESPONSE AND MUCH EVIDENCE,
APRIL 30, 1936, THE DEPARTMENT ORDERED COMPLIANCE WITH THE GENERAL
ORDER.  THE MATTER THEN WENT FOR REVIEW TO THE CIRCUIT COURT, PULASKI
COUNTY, AND IT HELD THE CHALLENGED ORDER INVALID.  UPON APPEAL, THE
SUPREME COURT RULED THAT THE SALES AND DELIVERIES IN QUESTION WERE NOT
FREE FROM STATE REGULATION BECAUSE PARTS OF INTERSTATE COMMERCE, AND
DIRECTED COMPLIANCE WITH THE DEPARTMENT'S GENERAL ORDER. 

THE QUESTION FOR PRESENT DETERMINATION IS WHETHER THIS GENERAL ORDER,
VALID UNDER THE LAWS OF THE STATE, WHICH ONLY COMPELS APPELLANT TO FILE
CERTAIN DESIGNATED INFORMATION, AMOUNTS TO AN INFRINGEMENT OF ANY RIGHT
OR PRIVILEGE GUARANTEED TO IT BY THE FEDERAL CONSTITUTION.  AND TO THIS
A NEGATIVE ANSWER MUST BE GIVEN. 

IF, AS CLAIMED, CERTAIN OF APPELLANT'S ACTIVITIES IN ARKANSAS ARE
PARTS OF INTERSTATE COMMERCE, THAT ALONE (AND NO OTHER DEFENSE IS
RELIED UPON) WOULD NOT SUFFICE TO JUSTIFY REFUSAL TO FURNISH THE
INFORMATION PRESENTLY DEMANDED BY THE STATE. 

APPELLANT OPERATES LOCALLY AT MANY PLACES IN ARKANSAS, ALSO DELIVERS
WITHIN THE STATE GREAT QUANTITIES OF GAS SAID TO MOVE WITHOUT
INTERRUPTION FROM ANOTHER STATE.  IN SUCH CIRCUMSTANCES IT MAY BE
HIGHLY IMPORTANT FOR THE STATE AUTHORITIES TO HAVE INFORMATION
CONCERNING ALL ITS OPERATIONS.  WE ARE UNABLE TO SEE THAT MERELY TO
REQUIRE COMPREHENSIVE REPORTS COVERING ALL OF THEM WOULD MATERIALLY
BURDEN OR UNDULY INTERFERE WITH THE FREE FLOW OF COMMERCE BETWEEN THE
STATES. 

IN CASE THE DEPARTMENT UNDERTAKES BY SOME FUTURE ACTION TO IMPOSE
WHAT MAY BE DEEMED UNREASONABLE RESTRAINT OR BURDEN UPON APPELLANT'S
INTERSTATE BUSINESS, THROUGH RATE REGULATION OR OTHERWISE, THAT MAY BE
CONTESTED.  THE RULE HERE OFTEN ANNOUNCED IS THAT NO CONSTITUTIONAL
QUESTION WILL BE PASSED UPON UNLESS NECESSARY FOR DISPOSITION OF THE
PENDING CAUSE. 

THE JUDGMENT OF THE SUPREME COURT MUST BE AFFIRMED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CAUSE. 
..END :









ERIE R. CO. V. TOMPKINS, 304 U.S. 64 


NO. 367.  ARGUED JANUARY 31, 1938.  - DECIDED APRIL 25, 1938.  - 90 F.2D
603, REVERSED. 


1.  THE LIABILITY OF A RAILROAD COMPANY FOR INJURY CAUSED BY NEGLIGENT
OPERATION OF ITS TRAIN TO A PEDESTRIAN ON A MUCH-USED, BEATEN PATH ON
ITS RIGHT-OF-WAY ALONG AND NEAR THE RAILS, DEPENDS, IN THE ABSENCE OF A
FEDERAL OR STATE STATUTE, UPON THE UNWRITTEN LAW OF THE STATE WHERE THE
ACCIDENT OCCURRED.  PP. 71 ET SEQ. 

2.  A FEDERAL COURT EXERCISING JURISDICTION OVER SUCH A CASE ON THE
GROUND OF DIVERSITY OF CITIZENSHIP, IS NOT FREE TO TREAT THIS QUESTION
AS ONE OF SO-CALLED "GENERAL LAW," BUT MUST APPLY THE STATE LAW AS
DECLARED BY THE HIGHEST STATE COURT.  SWIFT V. TYSON, 16 PET. 1,
OVERRULED.  ID. 

3.  THERE IS NO FEDERAL GENERAL COMMON LAW.  CONGRESS HAS NO POWER TO
DECLARE SUBSTANTIVE RULES OF COMMON LAW APPLICABLE IN A STATE WHETHER
THEY BE LOCAL IN THEIR NATURE OR "GENERAL," WHETHER THEY BE COMMERCIAL
LAW OR A PART OF THE LAW OF TORTS.  AND NO CLAUSE IN THE CONSTITUTION
PURPORTS TO CONFER SUCH A POWER UPON THE FEDERAL COURTS.  EXCEPT IN
MATTERS GOVERNED BY THE FEDERAL CONSTITUTION OR BY ACTS OF CONGRESS,
THE LAW TO BE APPLIED IN ANY CASE IS THE LAW OF THE STATE.  AND WHETHER
THE LAW OF THE STATE SHALL BE DECLARED BY ITS LEGISLATURE IN A STATUTE
OR BY ITS HIGHEST COURT IN A DECISION IS NOT A MATTER OF FEDERAL
CONCERN.  P. 78. 

4.  IN DISAPPROVING THE DOCTRINE OF SWIFT V. TYSON, THE COURT DOES
NOT HOLD UNCONSTITUTIONAL SEC. 34 OF THE FEDERAL JUDICIARY ACT OF 1789
OR ANY OTHER ACT OF CONGRESS.  IT MERELY DECLARES THAT BY APPLYING THE
DOCTRINE OF THAT CASE RIGHTS WHICH ARE RESERVED BY THE CONSTITUTION TO
THE SEVERAL STATES HAVE BEEN INVADED.  P. 79. 

ERIE RAILROAD CO. V. TOMPKINS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 671, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED AGAINST THE RAILROAD COMPANY IN AN ACTION FOR PERSONAL
INJURIES.  THE ACCIDENT WAS IN PENNSYLVANIA.  THE ACTION WAS IN NEW
YORK, JURISDICTION BEING BASED ON DIVERSITY OF CITIZENSHIP. 

THE PENNSYLVANIA DECISIONS DENYING PERMISSIVE RIGHTS ON LONGITUDINAL
PATHWAYS AS DISTINGUISHED FROM CROSSINGS SHOULD HAVE RECEIVED DUE
CONSIDERATION IN RECOGNITION OF THE ELEMENTARY PRINCIPLE THAT THE LAW
TO BE APPLIED IS THE LEX LOCI DELICTI.  RESTATEMENT, CONFLICT OF LAWS,
SEC. 380, P. 462. 

WHATEVER DIFFICULTIES THERE MAY BE IN ASCERTAINING THE PERTINENT
PENNSYLVANIA LAW OR IN FIXING THE EXTENT TO WHICH THE FEDERAL COURTS
ARE BOUND TO RECOGNIZE THE PERTINENT DECISIONS OF THE PENNSYLVANIA
COURTS, IT IS SETTLED BEYOND QUESTION THAT IT IS THE PENNSYLVANIA LAW
WHICH THE FEDERAL COURTS, QUITE AS TRULY AS THE STATE COURTS, ARE BOUND
TO ASCERTAIN AND APPLY.  THERE IS NO SUCH THING AS A FEDERAL COMMON LAW
APPLICABLE IN SUCH CASES.  BUCHER V. CHESHIRE RAILROAD CO., 125 U.S.
555, 583-584; SMITH V. ALABAMA, 124 U.S. 465, 478-479.  SEE ALSO
CARROLL COUNTY V. SMITH, 111 U.S. 556, 563; MCGUIRE V. SHERWIN-WILLIAMS
CO., 87 F.2D 112; BOSTON & MAINE R. V. BRESLIN, 80 F.2D 749, (CERT.
DENIED, 297 U.S. 715); MOORE V. BACKUS, 78 F.2D 571, (CERT. DENIED, 296
U.S. 640); REED & BARTON CORP. V. MAAS, 73 F.2D 359; PUBLIC SERVICE RY.
CO. V. WURSTHORN, 278 F. 408, (CERT. DENIED, 259 U.S. 585); KEYSTONE
WOOD CO. V. SUSQUEHANNA BOOM CO., 240 F. 296, (CERT. DENIED, 243 U.S.
655); SNARE & TRIEST CO. V. FRIEDMAN, 169 F. 1, 11, (CERT. DENIED, 214
U.S. 518). 

ALTHOUGH EACH STATE UNQUESTIONABLY HAS THE POWER TO DETERMINE THE
PARTICULAR CONCEPTION OF THE COMMON LAW ADOPTED BY IT, AND ALTHOUGH THE
COMMON LAW IS ACCLAIMED AS BEING ADAPTABLE TO CHANGING CONDITIONS, THE
OPINION OF THE COURT BELOW IS AN UNQUALIFIED PRONOUNCEMENT THAT IT IS
BEYOND THE POWER OF THE PENNSYLVANIA COURTS TO DETERMINE OR EVOLVE THE
LAW OF PENNSYLVANIA AS TO PERMISSIVE RIGHTS ON RAILROAD RIGHTS-OF-WAY
IN PENNSYLVANIA.  IT WOULD SEEM CLEAR THAT THIS IS A SWEEPING
REPUDIATION OF THE PRINCIPLE THAT THE LAW TO BE APPLIED IS THAT OF THE
STATE. 

THE PENNSYLVANIA DECISIONS SHOULD HAVE BEEN RECOGNIZED AS CONTROLLING
BECAUSE THEY HAD ESTABLISHED THE RULE OF LAW WITH SUFFICIENT
DEFINITENESS AND FINALITY TO CONSTITUTE IT A LOCAL RULE OF PROPERTY,
ACTION OR CONDUCT, EVEN THOUGH THE QUESTION MIGHT OTHERWISE HAVE BEEN
REGARDED AS MAINLY ONE OF GENERAL LAW. 

WE DO NOT QUESTION THE FINALITY OF THE HOLDING OF THIS COURT IN SWIFT
V. TYSON, 16 PET. 1, THAT THE "LAWS OF THE SEVERAL STATES" REFERRED TO
IN THE RULES OF DECISION ACT DO NOT INCLUDE STATE COURT DECISIONS AS
SUCH.  BUT WHETHER BY VIRTUE OF THE ACT OR OF COMITY, IT IS WELL
SETTLED THAT SUCH DECISIONS ARE PERTINENT AND, UNDER CERTAIN
CIRCUMSTANCES, CONTROLLING IN ASCERTAINING OR DETERMINING THE LAW OF
THE STATE. 

IT WOULD BE IDLE TO DENY THAT THIS COURT, IN MATTERS OF A GENERAL
NATURE, HAS EXHIBITED A MARKED RELUCTANCE TO RECOGNIZE NONCONFORMIST
STATE RULES AS SETTLING THE QUESTION OF STATE LAW.  BUT EVEN IN CASES
WHERE AN ASSERTED RULE OF THE STATE COURTS HAS BEEN REJECTED, IT HAS
BEEN STATED OR IMPLIED THAT THE ASSERTED RULE WOULD GOVERN IF
SUFFICIENTLY ESTABLISHED.  EXPRESSIONS TO THIS EFFECT OCCUR WITH SUCH
FREQUENCY AND CONSISTENCY THAT THEY MUST BE RECOGNIZED AS FORMING A
PART OF THE GENERAL DOCTRINE ON THE SUBJECT. 

AS A MATTER OF COMITY AT LEAST AND BY VIRTUE OF THE RULES OF DECISION
ACT AS WELL, THE FEDERAL COURTS ARE BOUND TO RECOGNIZE AN ASSERTED RULE
OF STATE LAW WHERE THE EVIDENCE IN THE FORM OF STATE DECISIONS IS
SUFFICIENTLY CONCLUSIVE, IN OTHER WORDS, WHEN THE ASSERTED RULE IS
ESTABLISHED WITH SUFFICIENT DEFINITENESS AND FINALITY. 

THE IMPLICATION FROM THE SWIFT CASE WOULD SEEM TO BE THAT THE FEDERAL
COURTS WOULD FOLLOW THE STATE RULE IF ESTABLISHED WITH SUCH
DEFINITENESS AND FINALITY THAT THE STATE COURTS WOULD NO LONGER RESORT
TO THE GENERAL SOURCES OF THE COMMON LAW OR TO GENERAL REASONING AND
LEGAL ANALOGIES, BUT WOULD REGARD THE QUESTION AS FORECLOSED IN THE
STATE. 

THIS COURT HAS SO INDICATED IN MANY CASES WHERE THE CONCLUSION WAS
THAT THERE WAS NO STATE RULE SO FIRMLY ESTABLISHED AS TO EXCLUDE RESORT
TO GENERAL PRINCIPLES.  CARPENTER V. PROVIDENCE WASHINGTON INS. CO., 16
PET. 495; LANE V. VICK, 3 HOW.  464; CHICAGO V. ROBBINS, 2 BLACK 418;
YATES V. MILWAUKEE, 10 WALL.  497; NEW YORK CENTRAL R. CO. V. LOCKWOOD,
17 WALL.  357; BURGESS V. SELIGMAN, 107 U.S. 20; BALTIMORE & OHIO R.
CO. V. BAUGH, 149 U.S. 368; BARBER V. PITTSBURGH, F.W. & C. RY. CO.,
166 U.S. 83; KUHN V. FAIRMONT COAL CO., 215 U.S. 349; BLACK & WHITE
TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., 276 U.S. 518. 

OBVIOUSLY, A CASE IS NOT REGARDED AS DEPENDING "UPON THE DOCTRINES OF
COMMERCIAL LAW AND GENERAL JURISPRUDENCE" WHEN THE APPLICABLE STATE
RULE IS ESTABLISHED BY STATE STATUTE, EVEN THOUGH THE STATUTE DEALS
WITH A MATTER WHICH BUT FOR THE STATUTE WOULD UNQUESTIONABLY COME
WITHIN THE SCOPE OF COMMERCIAL LAW AND GENERAL JURISPRUDENCE.  BURNS
MORTGAGE CO. V. FRIED, 292 U.S. 487; MARINE BANK V. KALT-ZIMMERS CO.,
293 U.S. 357.  IT WOULD SEEM EQUALLY OBVIOUS THAT A CASE IS NOT TO BE
REGARDED AS DEPENDING "UPON THE DOCTRINES OF COMMERCIAL AND GENERAL
JURISPRUDENCE" WHEN THERE IS AN APPLICABLE STATE RULE OF PROPERTY,
ACTION OR CONDUCT, DEFINITELY AND FINALLY ESTABLISHED AS SUCH BY
DECISIONS OF THE HIGHEST STATE COURT, EVEN THOUGH THE DECISIONS DEAL
WITH A MATTER WHICH BUT FOR SUCH ESTABLISHED RULE WOULD UNQUESTIONABLY
COME WITHIN THE SCOPE OF COMMERCIAL LAW AND GENERAL JURISPRUDENCE. 
SNARE & TRIEST CO. V. FRIEDMAN, 169 F. 1, 12; 214 U.S. 518; BUCHER V.
CHESHIRE RAILROAD CO., 125 U.S. 555; BYRNE V. KANSAS CITY, FT. S. &
M.R. CO., 61 F. 605. 

THE PENNSYLVANIA DECISIONS DENYING PERMISSIVE RIGHTS ON LONGITUDINAL
PATHWAYS, AS DISTINGUISHED FROM CROSSINGS, DECLARE A PENNSYLVANIA RULE
SUFFICIENTLY LOCAL IN NATURE TO BE CONTROLLING, EVEN THOUGH MORE
DEFINITENESS AND FINALITY MIGHT BE REQUIRED IN A RULE OF A MORE GENERAL
NATURE.  IT RESTS EXPRESSLY ON A LOCAL POLICY RELATING TO THE EFFICIENT
OPERATION OF RAILROADS, A POLICY WHICH PRESUMABLY WAS DICTATED BY LOCAL
CONDITIONS. 

IN CASES INVOLVING QUESTIONS OF GENERAL LAW, FEDERAL COURTS WILL
EXERCISE THEIR INDEPENDENT JUDGMENT. 

THIS DOCTRINE, WHICH IS NOW ELEMENTARY, FOUND ITS INCEPTION IN SWIFT
V. TYSON, 16 PET. 1; HAS CONSTANTLY BEEN REAFFIRMED BY THIS COURT AND
WAS MOST RECENTLY APPLIED IN THE CASE OF BLACK & WHITE TAXICAB CO. V.
BROWN & YELLOW TAXICAB CO., 276 U.S. 518. 

DECISIONS OF THIS COURT, AS WELL AS LOGIC AND REASON, HAVE
ESTABLISHED THAT QUESTIONS OF THE TYPE HERE PRESENTED, INVOLVING
RAILROAD ACCIDENTS, ARE QUESTIONS OF GENERAL LAW, UPON WHICH
INDEPENDENT JUDGMENT MAY BE EXERCISED BY FEDERAL COURTS.  (CITING
BALTIMORE & OHIO R. CO. V. BAUGH, 149 U.S. 368, AND MANY OTHER CASES.) 

THERE IS NO DOCTRINE THAT WHERE A RULE IS WELL ESTABLISHED IN A
STATE, THE QUESTION IS ONE OF LOCAL LAW AND FEDERAL COURTS MUST FOLLOW
THE RULE EVEN THOUGH THE RULE MIGHT OTHERWISE BE REGARDED AS ONE OF
GENERAL LAW. 

EVEN IF A QUESTION OF LOCAL LAW WERE HERE INVOLVED, THE SAME RESULT
MUST BE REACHED, SINCE PETITIONER RELIES UPON A SOLITARY PENNSYLVANIA
DECISION, CLEARLY CONTRARY TO THE WEIGHT OF PENNSYLVANIA DECISIONS, AND
OF DOUBTFUL APPLICABILITY TO THE FACTS OF THE CASE AT BAR. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE OFT-CHALLENGED DOCTRINE OF
SWIFT V. TYSON  FN1  SHALL NOW BE DISAPPROVED. 

TOMPKINS, A CITIZEN OF PENNSYLVANIA, WAS INJURED ON A DARK NIGHT BY A
PASSING FREIGHT TRAIN OF THE ERIE RAILROAD COMPANY WHILE WALKING ALONG
ITS RIGHT OF WAY AT HUGHESTOWN IN THAT STATE.  HE CLAIMED THAT THE
ACCIDENT OCCURRED THROUGH NEGLIGENCE IN THE OPERATION, OR MAINTENANCE,
OF THE TRAIN; THAT HE WAS RIGHTFULLY ON THE PREMISES AS LICENSEE
BECAUSE ON A COMMONLY USED BEATEN FOOTPATH WHICH RAN FOR A SHORT
DISTANCE ALONGSIDE THE TRACKS; AND THAT HE WAS STRUCK BY SOMETHING
WHICH LOOKED LIKE A DOOR PROJECTING FROM ONE OF THE MOVING CARS.  TO
ENFORCE THAT CLAIM HE BROUGHT AN ACTION IN THE FEDERAL COURT FOR
SOUTHERN NEW YORK, WHICH HAD JURISDICTION BECAUSE THE COMPANY IS A
CORPORATION OF THAT STATE.  IT DENIED LIABILITY; AND THE CASE WAS TRIED
BY A JURY. 

THE ERIE INSISTED THAT ITS DUTY TO TOMPKINS WAS NO GREATER THAN THAT
OWED TO A TRESPASSER.  IT CONTENDED, AMONG OTHER THINGS, THAT ITS DUTY
TO TOMPKINS, AND HENCE ITS LIABILITY, SHOULD BE DETERMINED IN
ACCORDANCE WITH THE PENNSYLVANIA LAW; THAT UNDER THE LAW OF
PENNSYLVANIA, AS DECLARED BY ITS HIGHEST COURT, PERSONS WHO USE
PATHWAYS ALONG THE RAILROAD RIGHT OF WAY - THAT IS A LONGITUDINAL
PATHWAY AS DISTINGUISHED FROM A CROSSING - ARE TO BE DEEMED
TRESPASSERS; AND THAT THE RAILROAD IS NOT LIABLE FOR INJURIES TO
UNDISCOVERED TRESPASSERS RESULTING FROM ITS NEGLIGENCE, UNLESS IT BE
WANTON OR WILFUL.  TOMPKINS DENIED THAT ANY SUCH RULE HAD BEEN
ESTABLISHED BY THE DECISIONS OF THE PENNSYLVANIA COURTS; AND CONTENDED
THAT, SINCE THERE WAS NO STATUTE OF THE STATE ON THE SUBJECT, THE
RAILROAD'S DUTY AND LIABILITY IS TO BE DETERMINED IN FEDERAL COURTS AS
A MATTER OF GENERAL LAW. 

THE TRIAL JUDGE REFUSED TO RULE THAT THE APPLICABLE LAW PRECLUDED
RECOVERY.  THE JURY BROUGHT IN A VERDICT OF $30,000; AND THE JUDGMENT
ENTERED THEREON WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS, WHICH
HELD, 90 F.2D 603, 604, THAT IT WAS UNNECESSARY TO CONSIDER WHETHER THE
LAW OF PENNSYLVANIA WAS AS CONTENDED, BECAUSE THE QUESTION WAS ONE NOT
OF LOCAL, BUT OF GENERAL, LAW AND THAT "UPON QUESTIONS OF GENERAL LAW
THE FEDERAL COURTS ARE FREE, IN THE ABSENCE OF A LOCAL STATUTE, TO
EXERCISE THEIR INDEPENDENT JUDGMENT AS TO WHAT THE LAW IS; AND IT IS
WELL SETTLED THAT THE QUESTION OF THE RESPONSIBILITY OF A RAILROAD FOR
INJURIES CAUSED BY ITS SERVANTS IS ONE OF GENERAL LAW.  ...  WHERE THE
PUBLIC HAS MADE OPEN AND NOTORIOUS USE OF A RAILROAD RIGHT OF WAY FOR A
LONG PERIOD OF TIME AND WITHOUT OBJECTION, THE COMPANY OWES TO PERSONS
ON SUCH PERMISSIVE PATHWAY A DUTY OF CARE IN THE OPERATION OF ITS
TRAINS.  ...  IT IS LIKEWISE GENERALLY RECOGNIZED LAW THAT A JURY MAY
FIND THAT NEGLIGENCE EXISTS TOWARD A PEDESTRIAN USING A PERMISSIVE PATH
ON THE RAILROAD RIGHT OF WAY IF HE IS HIT BY SOME OBJECT PROJECTING
FROM THE SIDE OF THE TRAIN." 

THE ERIE HAD CONTENDED THAT APPLICATION OF THE PENNSYLVANIA RULE WAS
REQUIRED, AMONG OTHER THINGS, BY SEC. 34 OF THE FEDERAL JUDICIARY ACT
OF SEPTEMBER 24, 1789, C. 20, 28 U.S.C. SEC. 725, WHICH PROVIDES: 

"THE LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE CONSTITUTION,
TREATIES, OR STATUTES OF THE UNITED STATES OTHERWISE REQUIRE OR
PROVIDE, SHALL BE REGARDED AS RULES OF DECISION IN TRIALS AT COMMON
LAW, IN THE COURTS OF THE UNITED STATES, IN CASES WHERE THEY APPLY." 

BECAUSE OF THE IMPORTANCE OF THE QUESTION WHETHER THE FEDERAL COURT
WAS FREE TO DISREGARD THE ALLEGED RULE OF THE PENNSYLVANIA COMMON LAW,
WE GRANTED CERTIORARI. 

FIRST.  SWIFT V. TYSON, 16 PET. 1, 18, HELD THAT FEDERAL COURTS
EXERCISING JURISDICTION ON THE GROUND OF DIVERSITY OF CITIZENSHIP NEED
NOT, IN MATTERS OF GENERAL JURISPRUDENCE, APPLY THE UNWRITTEN LAW OF
THE STATE AS DECLARED BY ITS HIGHEST COURT; THAT THEY ARE FREE TO
EXERCISE AN INDEPENDENT JUDGMENT AS TO WHAT THE COMMON LAW OF THE STATE
IS - OR SHOULD BE; AND THAT, AS THERE STATED BY MR. JUSTICE STORY: 

"THE TRUE INTERPRETATION OF THE THIRTY-FOURTH SECTION LIMITED ITS
APPLICATION TO STATE LAWS STRICTLY LOCAL, THAT IS TO SAY, TO THE
POSITIVE STATUTES OF THE STATE, AND THE CONSTRUCTION THEREOF ADOPTED BY
THE LOCAL TRIBUNALS, AND TO RIGHTS AND TITLES TO THINGS HAVING A
PERMANENT LOCALITY, SUCH AS THE RIGHTS AND TITLES TO REAL ESTATE, AND
OTHER MATTERS IMMOVABLE AND INTRATERRITORIAL IN THEIR NATURE AND
CHARACTER.  IT NEVER HAS BEEN SUPPOSED BY US, THAT THE SECTION DID
APPLY, OR WAS INTENDED TO APPLY, TO QUESTIONS OF A MORE GENERAL NATURE,
NOT AT ALL DEPENDENT UPON LOCAL STATUTES OR LOCAL USAGES OF A FIXED AND
PERMANENT OPERATION, AS, FOR EXAMPLE, TO THE CONSTRUCTION OF ORDINARY
CONTRACTS OR OTHER WRITTEN INSTRUMENTS, AND ESPECIALLY TO QUESTIONS OF
GENERAL COMMERCIAL LAW, WHERE THE STATE TRIBUNALS ARE CALLED UPON TO
PERFORM THE LIKE FUNCTIONS AS OURSELVES, THAT IS, TO ASCERTAIN UPON
GENERAL REASONING AND LEGAL ANALOGIES, WHAT IS THE TRUE EXPOSITION OF
THE CONTRACT OR INSTRUMENT, OR WHAT IS THE JUST RULE FURNISHED BY THE
PRINCIPLES OF COMMERCIAL LAW TO GOVERN THE CASE." 

THE COURT IN APPLYING THE RULE OF SEC. 34 TO EQUITY CASES, IN MASON
V. UNITED STATES, 260 U.S. 545, 559, SAID:  "THE STATUTE, HOWEVER, IS
MERELY DECLARATIVE OF THE RULE WHICH WOULD EXIST IN THE ABSENCE OF THE
STATUTE."  FN2  THE FEDERAL COURTS ASSUMED, IN THE BROAD FIELD OF
"GENERAL LAW," THE POWER TO DECLARE RULES OF DECISION WHICH CONGRESS
WAS CONFESSEDLY WITHOUT POWER TO ENACT AS STATUTES.  DOUBT WAS
REPEATEDLY EXPRESSED AS TO THE CORRECTNESS OF THE CONSTRUCTION GIVEN
SEC. 34,  FN3  AND AS TO THE SOUNDNESS OF THE RULE WHICH IT
INTRODUCED.  FN4  BUT IT WAS THE MORE RECENT RESEARCH OF A COMPETENT
SCHOLAR, WHO EXAMINED THE ORIGINAL DOCUMENT, WHICH ESTABLISHED THAT THE
CONSTRUCTION GIVEN TO IT BY THE COURT WAS ERRONEOUS; AND THAT THE
PURPOSE OF THE SECTION WAS MERELY TO MAKE CERTAIN THAT, IN ALL MATTERS
EXCEPT THOSE IN WHICH SOME FEDERAL LAW IS CONTROLLING, THE FEDERAL
COURTS EXERCISING JURISDICTION IN DIVERSITY OF CITIZENSHIP CASES WOULD
APPLY AS THEIR RULES OF DECISION THE LAW OF THE STATE, UNWRITTEN AS
WELL AS WRITTEN.  FN5    CRITICISM OF THE DOCTRINE BECAME WIDESPREAD
AFTER THE DECISION OF BLACK & WHITE TAXICAB CO. V. BROWN & YELLOW
TAXICAB CO., 276 U.S. 518.  FN6  THERE, BROWN AND YELLOW, A KENTUCKY
CORPORATION OWNED BY KENTUCKIANS, AND THE LOUISVILLE AND NASHVILLE
RAILROAD, ALSO A KENTUCKY CORPORATION, WISHED THAT THE FORMER SHOULD
HAVE THE EXCLUSIVE PRIVILEGE OF SOLICITING PASSENGER AND BAGGAGE
TRANSPORTATION AT THE BOWLING GREEN, KENTUCKY, RAILROAD STATION; AND
THAT THE BLACK AND WHITE, A COMPETING KENTUCKY CORPORATION, SHOULD BE
PREVENTED FROM INTERFERING WITH THAT PRIVILEGE.  KNOWING THAT SUCH A
CONTRACT WOULD BE VOID UNDER THE COMMON LAW OF KENTUCKY, IT WAS
ARRANGED THAT THE BROWN AND YELLOW REINCORPORATE UNDER THE LAW OF
TENNESSEE, AND THAT THE CONTRACT WITH THE RAILROAD SHOULD BE EXECUTED
THERE.  THE SUIT WAS THEN BROUGHT BY THE TENNESSEE CORPORATION IN THE
FEDERAL COURT FOR WESTERN KENTUCKY TO ENJOIN COMPETITION BY THE BLACK
AND WHITE; AN INJUNCTION ISSUED BY THE DISTRICT COURT WAS SUSTAINED BY
THE COURT OF APPEALS; AND THIS COURT, CITING MANY DECISIONS IN WHICH
THE DOCTRINE OF SWIFT V. TYSON HAD BEEN APPLIED, AFFIRMED THE DECREE. 

SECOND.  EXPERIENCE IN APPLYING THE DOCTRINE OF SWIFT V. TYSON, HAD
REVEALED ITS DEFECTS, POLITICAL AND SOCIAL; AND THE BENEFITS EXPECTED
TO FLOW FROM THE RULE DID NOT ACCRUE.  PERSISTENCE OF STATE COURTS IN
THEIR OWN OPINIONS ON QUESTIONS OF COMMON LAW PREVENTED UNIFORMITY; FN7
AND THE IMPOSSIBILITY OF DISCOVERING A SATISFACTORY LINE OF
DEMARCATION BETWEEN THE PROVINCE OF GENERAL LAW AND THAT OF LOCAL LAW
DEVELOPED A NEW WELL OF UNCERTAINTIES.  FN8 

ON THE OTHER HAND, THE MISCHIEVOUS RESULTS OF THE DOCTRINE HAD BECOME
APPARENT.  DIVERSITY OF CITIZENSHIP JURISDICTION WAS CONFERRED IN ORDER
TO PREVENT APPREHENDED DISCRIMINATION IN STATE COURTS AGAINST THOSE NOT
CITIZENS OF THE STATE.  SWIFT V. TYSON INTRODUCED GRAVE DISCRIMINATION
BY NON-CITIZENS AGAINST CITIZENS.  IT MADE RIGHTS ENJOYED UNDER THE
UNWRITTEN "GENERAL LAW" VARY ACCORDING TO WHETHER ENFORCEMENT WAS
SOUGHT IN THE STATE OR IN THE FEDERAL COURT; AND THE PRIVILEGE OF
SELECTING THE COURT IN WHICH THE RIGHT SHOULD BE DETERMINED WAS
CONFERRED UPON THE NON-CITIZEN.  FN9  THUS, THE DOCTRINE RENDERED
IMPOSSIBLE EQUAL PROTECTION OF THE LAW.  IN ATTEMPTING TO PROMOTE
UNIFORMITY OF LAW THROUGHOUT THE UNITED STATES, THE DOCTRINE HAD
PREVENTED UNIFORMITY IN THE ADMINISTRATION OF THE LAW OF THE STATE. 

THE DISCRIMINATION RESULTING BECAME IN PRACTICE FARREACHING.  THIS
RESULTED IN PART FROM THE BROAD PROVINCE ACCORDED TO THE SO-CALLED
"GENERAL LAW" AS TO WHICH FEDERAL COURTS EXERCISED AN INDEPENDENT
JUDGMENT.  FN10  IN ADDITION TO QUESTIONS OF PURELY COMMERCIAL LAW,
"GENERAL LAW" WAS HELD TO INCLUDE THE OBLIGATIONS UNDER CONTRACTS
ENTERED INTO AND TO BE PERFORMED WITHIN THE STATE, FN11  THE EXTENT TO
WHICH A CARRIER OPERATING WITHIN A STATE MAY STIPULATE FOR EXEMPTION
FROM LIABILITY FOR HIS OWN NEGLIGENCE OR THAT OF HIS EMPLOYEE; FN12
THE LIABILITY FOR TORTS COMMITTED WITHIN THE STATE UPON PERSONS
RESIDENT OR PROPERTY LOCATED THERE, EVEN WHERE THE QUESTION OF
LIABILITY DEPENDED UPON THE SCOPE OF A PROPERTY RIGHT CONFERRED BY THE
STATE; FN13  AND THE RIGHT TO EXEMPLARY OR PUNITIVE DAMAGES.  FN14
FURTHERMORE, STATE DECISIONS CONSTRUING LOCAL DEEDS, FN15  MINERAL
CONVEYANCES,  FN16  AND EVEN DEVISES OF REAL ESTATE  FN17  WERE
DISREGARDED.  FN18 

IN PART THE DISCRIMINATION RESULTED FROM THE WIDE RANGE OF PERSONS
HELD ENTITLED TO AVAIL THEMSELVES OF THE FEDERAL RULE BY RESORT TO THE
DIVERSITY OF CITIZENSHIP JURISDICTION.  THROUGH THIS JURISDICTION
INDIVIDUAL CITIZENS WILLING TO REMOVE FROM THEIR OWN STATE AND BECOME
CITIZENS OF ANOTHER MIGHT AVAIL THEMSELVES OF THE FEDERAL RULE.  FN19
AND, WITHOUT EVEN CHANGE OF RESIDENCE, A CORPORATE CITIZEN OF THE STATE
COULD AVAIL ITSELF OF THE FEDERAL RULE BY RE-INCORPORATING UNDER THE
LAWS OF ANOTHER STATE, AS WAS DONE IN THE TAXICAB CASE. 

THE INJUSTICE AND CONFUSION INCIDENT TO THE DOCTRINE OF SWIFT V.
TYSON HAVE BEEN REPEATEDLY URGED AS REASONS FOR ABOLISHING OR LIMITING
DIVERSITY OF CITIZENSHIP JURISDICTION.  FN20  OTHER LEGISLATIVE RELIEF
HAS BEEN PROPOSED.  FN21  IF ONLY A QUESTION OF STATUTORY CONSTRUCTION
WERE INVOLVED, WE SHOULD NOT BE PREPARED TO ABANDON A DOCTRINE SO
WIDELY APPLIED THROUGHOUT NEARLY A CENTURY.  FN22  BUT THE
UNCONSTITUTIONALITY OF THE COURSE PURSUED HAS NOW BEEN MADE CLEAR AND
COMPELS US TO DO SO. 

THIRD.  EXCEPT IN MATTERS GOVERNED BY THE FEDERAL CONSTITUTION OR BY
ACTS OF CONGRESS, THE LAW TO BE APPLIED IN ANY CASE IS THE LAW OF THE
STATE.  AND WHETHER THE LAW OF THE STATE SHALL BE DECLARED BY ITS
LEGISLATURE IN A STATUTE OR BY ITS HIGHEST COURT IN A DECISION IS NOT A
MATTER OF FEDERAL CONCERN.  THERE IS NO FEDERAL GENERAL COMMON LAW. 
CONGRESS HAS NO POWER TO DECLARE SUBSTANTIVE RULES OF COMMON LAW
APPLICABLE IN A STATE WHETHER THEY BE LOCAL IN THEIR NATURE OR
"GENERAL," BE THEY COMMERCIAL LAW OR A PART OF THE LAW OF TORTS.  AND
NO CLAUSE IN THE CONSTITUTION PURPORTS TO CONFER SUCH A POWER UPON THE
FEDERAL COURTS.  AS STATED BY MR. JUSTICE FIELD WHEN PROTESTING IN
BALTIMORE & OHIO R. CO. V. BAUGH, 149 U.S. 368, 401, AGAINST IGNORING
THE OHIO COMMON LAW OF FELLOW SERVANT LIABILITY: 

"I AM AWARE THAT WHAT HAS BEEN TERMED THE GENERAL LAW OF THE COUNTRY
WHICH IS OFTEN LITTLE LESS THAN WHAT THE JUDGE ADVANCING THE DOCTRINE
THINKS AT THE TIME SHOULD BE THE GENERAL LAW ON A PARTICULAR SUBJECT -
HAS BEEN OFTEN ADVANCED IN JUDICIAL OPINIONS OF THIS COURT TO CONTROL A
CONFLICTING LAW OF A STATE.  I ADMIT THAT LEARNED JUDGES HAVE FALLEN
INTO THE HABIT OF REPEATING THIS DOCTRINE AS A CONVENIENT MODE OF
BRUSHING ASIDE THE LAW OF A STATE IN CONFLICT WITH THEIR VIEWS.  AND I
CONFESS THAT, MOVED AND GOVERNED BY THE AUTHORITY OF THE GREAT NAMES OF
THOSE JUDGES, I HAVE, MYSELF, IN MANY INSTANCES, UNHESITATINGLY AND
CONFIDENTLY, BUT I THINK NOW ERRONEOUSLY, REPEATED THE SAME DOCTRINE. 
BUT, NOTWITHSTANDING THE GREAT NAMES WHICH MAY BE CITED IN FAVOR OF THE
DOCTRINE, AND NOTWITHSTANDING THE FREQUENCY WITH WHICH THE DOCTRINE HAS
BEEN REITERATED, THERE STANDS, AS A PERPETUAL PROTEST AGAINST ITS
REPETITION, THE CONSTITUTION OF THE UNITED STATES, WHICH RECOGNIZES AND
PRESERVES THE AUTONOMY AND INDEPENDENCE OF THE STATES - INDEPENDENCE IN
THEIR LEGISLATIVE AND INDEPENDENCE IN THEIR JUDICIAL DEPARTMENTS. 
SUPERVISION OVER EITHER THE LEGISLATIVE OR THE JUDICIAL ACTION OF THE
STATES IS IN NO CASE PERMISSIBLE EXCEPT AS TO MATTERS BY THE
CONSTITUTION SPECIFICALLY AUTHORIZED OR DELEGATED TO THE UNITED
STATES.  ANY INTERFERENCE WITH EITHER, EXCEPT AS THUS PERMITTED, IS AN
INVASION OF THE AUTHORITY OF THE STATE AND, TO THAT EXTENT, A DENIAL OF
ITS INDEPENDENCE." 

THE FALLACY UNDERLYING THE RULE DECLARED IN SWIFT V. TYSON IS MADE
CLEAR BY MR. JUSTICE HOLMES.  FN23  THE DOCTRINE RESTS UPON THE
ASSUMPTION THAT THERE IS "A TRANSCENDENTAL BODY OF LAW OUTSIDE OF ANY
PARTICULAR STATE BUT OBLIGATORY WITHIN IT UNLESS AND UNTIL CHANGED BY
STATUTE," THAT FEDERAL COURTS HAVE THE POWER TO USE THEIR JUDGMENT AS
TO WHAT THE RULES OF COMMON LAW ARE; AND THAT IN THE FEDERAL COURTS
"THE PARTIES ARE ENTITLED TO AN INDEPENDENT JUDGMENT ON MATTERS OF
GENERAL LAW":  "BUT LAW IN THE SENSE IN WHICH COURTS SPEAK OF IT TODAY
DOES NOT EXIST WITHOUT SOME DEFINITE AUTHORITY BEHIND IT.  THE COMMON
LAW SO FAR AS IT IS ENFORCED IN A STATE, WHETHER CALLED COMMON LAW OR
NOT, IS NOT THE COMMON LAW GENERALLY BUT THE LAW OF THAT STATE EXISTING
BY THE AUTHORITY OF THAT STATE WITHOUT REGARD TO WHAT IT MAY HAVE BEEN
IN ENGLAND OR ANYWHERE ELSE.  ... "THE AUTHORITY AND ONLY AUTHORITY IS
THE STATE, AND IF THAT BE SO, THE VOICE ADOPTED BY THE STATE AS ITS OWN
(WHETHER IT BE OF ITS LEGISLATURE OR OF ITS SUPREME COURT) SHOULD UTTER
THE LAST WORD." 

THUS THE DOCTRINE OF SWIFT V. TYSON IS, AS MR. JUSTICE HOLMES SAID,
"AN UNCONSTITUTIONAL ASSUMPTION OF POWERS BY COURTS OF THE UNITED
STATES WHICH NO LAPSE OF TIME OR RESPECTABLE ARRAY OF OPINION SHOULD
MAKE US HESITATE TO CORRECT."  IN DISAPPROVING THAT DOCTRINE WE DO NOT
HOLD UNCONSTITUTIONAL SEC. 34 OF THE FEDERAL JUDICIARY ACT OF 1789 OR
ANY OTHER ACT OF CONGRESS.  WE MERELY DECLARE THAT IN APPLYING THE
DOCTRINE THIS COURT AND THE LOWER COURTS HAVE INVADED RIGHTS WHICH IN
OUR OPINION ARE RESERVED BY THE CONSTITUTION TO THE SEVERAL STATES. 

FOURTH.  THE DEFENDANT CONTENDED THAT BY THE COMMON LAW OF
PENNSYLVANIA AS DECLARED BY ITS HIGHEST COURT IN FALCHETTI V.
PENNSYLVANIA R. CO., 307 PA. 203; 160 A. 859, THE ONLY DUTY OWED TO THE
PLAINTIFF WAS TO REFRAIN FROM WILFUL OR WANTON INJURY.  THE PLAINTIFF
DENIED THAT SUCH IS THE PENNSYLVANIA LAW.  FN24  IN SUPPORT OF THEIR
RESPECTIVE CONTENTIONS THE PARTIES DISCUSSED AND CITED MANY DECISIONS
OF THE SUPREME COURT OF THE STATE.  THE CIRCUIT COURT OF APPEALS RULED
THAT THE QUESTION OF LIABILITY IS ONE OF GENERAL LAW; AND ON THAT
GROUND DECLINED TO DECIDE THE ISSUE OF STATE LAW.  AS WE HOLD THIS WAS
ERROR, THE JUDGMENT IS REVERSED AND THE CASE REMANDED TO IT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH OUR OPINION.  REVERSED. 

FN1  16 PET. 1(1842).  LEADING CASES APPLYING THE DOCTRINE ARE
COLLECTED IN BLACK & WHITE TAXICAB CO. V. BROWN & YELLOW TAXICAB CO.,
276 U.S. 518, 530, 531.  DISSENT FROM ITS APPLICATION OR EXTENSION WAS
EXPRESSED AS EARLY AS 1845 BY MR. JUSTICE MCKINLEY (AND MR. CHIEF
JUSTICE TANEY) IN LANE V. VICK, 3 HOW.  464, 477.  DISSENTING OPINIONS
WERE ALSO WRITTEN BY MR. JUSTICE DANIEL IN ROWAN V. RUNNELS, 5 HOW. 
134, 140; BY MR. JUSTICE NELSON IN WILLIAMSON V. BERRY, 8 HOW.  495,
550, 558; BY MR. JUSTICE CAMPBELL IN PEASE V. PECK, 18 HOW.  595, 599,
600; AND BY MR. JUSTICE MILLER IN GELPCKE V. CITY OF DUBUQUE, 1 WALL. 
175, 207, AND BUTZ V. CITY OF MUSCATINE, 8 WALL.  575, 585.  VIGOROUS
ATTACK UPON THE ENTIRE DOCTRINE WAS MADE BY MR. JUSTICE FIELD IN
BALTIMORE & OHIO R. CO. V. BAUGH, 149 U.S. 368, 390, AND BY MR. JUSTICE
HOLMES IN KUHN V. FAIRMONT COAL CO., 215 U.S. 349, 370, AND IN THE
TAXICAB CASE, 276 U.S. AT 532. 

FN2  IN HAWKINS V. BARNEY'S LESSEE, 5 PET. 457, 464, IT WAS STATED
THAT SEC. 34 "HAS BEEN UNIFORMLY HELD TO BE NO MORE THAN A DECLARATION
OF WHAT THE LAW WOULD HAVE BEEN WITHOUT IT:  TO WIT, THAT THE LEX LOCI
MUST BE THE GOVERNING RULE OF PRIVATE RIGHT, UNDER WHATEVER
JURISDICTION PRIVATE RIGHT COMES TO BE EXAMINED."  SEE ALSO BANK OF
HAMILTON V. DUDLEY'S LESSEE, 2 PET. 492, 525.  COMPARE JACKSON V. CHEW,
12 WHEAT.  153, 162, 168; LIVINGSTON V. MOORE, 7 PET. 469, 542. 

FN3  PEPPER, THE BORDER LAND OF FEDERAL AND STATE DECISIONS (1889)
57; GRAY, THE NATURE AND SOURCES OF LAW (1909 ED.)  SECS.  533-34;
TRICKETT, NON-FEDERAL LAW ADMINISTERED IN FEDERAL COURTS (1906) 40 AM.
L. REV. 819, 821-24. 

FN4  STREET, IS THERE A GENERAL COMMERCIAL LAW OF THE UNITED STATES
(1873) 21 AM. L. REG. 473; HORNBLOWER, CONFLICT BETWEEN STATE AND
FEDERAL DECISIONS (1880) 14 AM. L. REV. 211; MEIGS, DECISIONS OF THE
FEDERAL COURTS ON QUESTIONS OF STATE LAW (1882) 8 SO. L. REV. (N. S.) 
452, (1911) 45 AM. L. REV. 47; HEISKELL, CONFLICT BETWEEN FEDERAL AND
STATE DECISIONS (1882) 16 AM. L. REV. 743; RAND, SWIFT V. TYSON VERSUS
GELPCKE V. DUBUQUE (1895) 8 HARV. L. REV. 328, 341-43; MILLS, SHOULD
FEDERAL COURTS IGNORE STATE LAWS (1900) 34 AM. L. REV. 51; CARPENTER,
COURT DECISIONS AND THE COMMON LAW (1917) 17 COL. L. REV. 593, 602-03. 

FN5  CHARLES WARREN, NEW LIGHT ON THE HISTORY OF THE FEDERAL
JUDICIARY ACT OF 1789(1923) 37 HARV. L. REV. 49, 51-52, 81-88, 108. 

FN6  SHELTON, CONCURRENT JURISDICTION - ITS NECESSITY AND ITS DANGERS
(1928) 15 VA. L. REV. 137; FRANKFURTER, DISTRIBUTION OF JUDICIAL POWER
BETWEEN FEDERAL AND STATE COURTS (1928) 13 CORN.  L.Q. 499, 524-30;
JOHNSON, STATE LAW AND THE FEDERAL COURTS (1929) 17 KY. L.J. 355;
FORDHAM, THE FEDERAL COURTS AND THE CONSTRUCTION OF UNIFORM STATE LAWS
(1929) 7 N.C.L. REV. 423; DOBIE, SEVEN IMPLICATIONS OF SWIFT V. TYSON
(1930) 16 VA. L. REV. 225; DAWSON, CONFLICT OF DECISIONS BETWEEN STATE
AND FEDERAL COURTS IN KENTUCKY, AND THE REMEDY (1931) 20 KY. L.J. 1;
CAMPBELL, IS SWIFT V. TYSON AN ARGUMENT FOR OR AGAINST ABOLISHING
DIVERSITY OF CITIZENSHIP JURISDICTION (1932) 18 A.B.A.J. 809; BALL,
REVISION OF FEDERAL DIVERSITY JURISDICTION (1933) 28 ILL. L. REV. 356,
362-64; FORDHAM, SWIFT V. TYSON AND THE CONSTRUCTION OF STATE STATUTES
(1935) 41 W. VA. L.Q. 131. 

FN7  COMPARE MR. JUSTICE MILLER IN GELPCKE V. CITY OF DUBUQUE, 1
WALL.  175, 209.  THE CONFLICTS LISTED IN HOLT, THE CONCURRENT
JURISDICTION OF THE FEDERAL AND STATE COURTS (1888) 160 ET SEQ. COVER
TWENTY-EIGHT PAGES.  SEE ALSO FRANKFURTER, SUPRA NOTE 6, AT 524-30;
DAWSON, SUPRA NOTE 6; NOTE, AFTERMATH OF THE SUPREME COURT'S STOP, LOOK
AND LISTEN RULE (1930) 43 HARV. L. REV. 926; CF. YNTEMA AND JAFFIN,
PRELIMINARY ANALYSIS OF CONCURRENT JURISDICTION (1931) 79 U. OF PA. L.
REV. 869, 881-86.  MOREOVER, AS POINTED OUT BY JUDGE AUGUSTUS N. HAND
IN COLE V. PENNSYLVANIA R. CO., 43 F.2D 953, 956-57, DECISIONS OF THIS
COURT ON COMMON LAW QUESTIONS ARE LESS LIKELY THAN FORMERLY TO PROMOTE
UNIFORMITY. 

FN8  COMPARE 2 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY
(REV. ED. 1935) 89:  "PROBABLY NO DECISION OF THE COURT HAS EVER GIVEN
RISE TO MORE UNCERTAINTY AS TO LEGAL RIGHTS; AND THOUGH DOUBTLESS
INTENDED TO PROMOTE UNIFORMITY IN THE OPERATION OF BUSINESS
TRANSACTIONS, ITS CHIEF EFFECT HAS BEEN TO RENDER IT DIFFICULT FOR
BUSINESS MEN TO KNOW IN ADVANCE TO WHAT PARTICULAR TOPIC THE COURT
WOULD APPLY THE DOCTRINE.  ...  "  THE FEDERAL DIGEST, THROUGH THE 1937
VOLUME, LISTS NEARLY 1000 DECISIONS INVOLVING THE DISTINCTION BETWEEN
QUESTIONS OF GENERAL AND OF LOCAL LAW.    FN9  IT WAS EVEN POSSIBLE FOR
A NON-RESIDENT PLAINTIFF DEFEATED ON A POINT OF LAW IN THE HIGHEST
COURT OF A STATE NEVERTHELESS TO WIN OUT BY TAKING A NONSUIT AND
RENEWING THE CONTROVERSY IN THE FEDERAL COURT.  COMPARE GARDNER V.
MICHIGAN CENT. R. CO., 150 U.S. 349; HARRISON V. FOLEY, 206 FED.
57(C.C.A. 8); INTERSTATE REALTY & INV. CO. V. BIBB COUNTY, 293 FED.
721(C.C.A. 5); SEE MILLS, SUPRA NOTE 4, AT 52. 

FN10  FOR A RECENT SURVEY OF THE SCOPE OF THE DOCTRINE, SEE SHARP &
BRENNAN, THE APPLICATION OF THE DOCTRINE OF SWIFT V. TYSON SINCE
1900(1929) 4 IND. L.J. 367. 

FN11  BLACK & WHITE TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., 276
U.S. 518; ROWAN V. RUNNELS, 5 HOW.  134, 139; BOYCE V. TABB, 18 WALL. 
546, 548; JOHNSON V. CHAS. D. NORTON CO., 159 FED. 361(C.C.A. 6); KEENE
FIVE CENT SAV. BANK V. REID, 123 FED. 221(C.C.A. 8). 

FN12  RAILROAD CO. V. LOCKWOOD, 17 WALL.  357, 367-68; LIVERPOOL &
G.W. STEAM CO. V. PHENIX INS. CO., 129 U.S. 397, 443; EELS V. ST.
LOUIS, K. & N.W. RY. CO., 52 FED. 903(C.C.S.D. IOWA); FOWLER V.
PENNSYLVANIA R. CO., 229 FED. 373(C.C.A. 2). 

FN13  CHICAGO V. ROBBINS, 2 BLACK 418, 428.  COMPARE YATES V.
MILWAUKEE, 10 WALL.  497, 506-07; YEATES V. ILLINOIS CENT. R. CO., 137
FED. 943(C.C.N.D. ILL.); CURTIS V. CLEVELAND, C.C. & ST. L. RY. CO.,
140 FED. 777(C.C.E.D. ILL.).  SEE ALSO HOUGH V. RAILWAY CO., 100 U.S.
213, 226; BALTIMORE & OHIO R. CO. V. BAUTH, 149 U.S. 368; GARDNER V.
MICHIGAN CENT. R. CO., 150 U.S. 349, 358; BEUTLER V. GRAND TRUNK
JUNCTION RY. CO., 224 U.S. 85; BALTIMORE & OHIO R. CO. V. GOODMAN, 275
U.S. 66; POKORA V. WABASH RY. CO., 292 U.S. 98; COLE V. PENNSYLVANIA R.
CO., 43 F.(2D) 953(C.C.A. 2). 

FN14  LAKE SHORE & M.S. RY. CO. V. PRENTICE, 147 U.S. 101, 106;
NORFOLK & P. TRACTION CO. V. MILLER, 174 FED. 607(C.C.A. 4); GREENE V.
KEITHLEY, 86 F.(2D) 239(C.C.A. 8). 

FN15  FOXCROFT V. MALLET, 4 HOW.  353, 379; MIDLAND VALLEY R. CO. V.
SUTTER, 28 F.(2D) 163(C.C.A. 8); MIDLAND VALLEY R. CO. V. JARVIS, 29
F.(2D) 539(C.C.A. 8). 

FN16  KUHN V. FAIRMONT COAL CO., 215 U.S. 349; MID-CONTINENT
PETROLEUM CORP. V. SAUDER, 67 F.(2D) 9, 12(C.C.A. 10), REVERSED ON
OTHER GROUNDS, 292 U.S. 272. 

FN17  LANE V. VICK, 3 HOW.  464, 476; BARBER V. PITTSBURGH, F.W. &
C.R. CO., 166 U.S. 83, 99-100; MESSINGER V. ANDERSON, 171 FED. 785, 791
792(C.C.A. 6), REVERSED ON OTHER GROUNDS, 225 U.S. 436; KNOX & LEWIS V.
ALWOOD, 228 FED. 753(S.D. GA.). 

FN18  COMPARE, ALSO, WILLIAMSON V. BERRY, 8 HOW.  495; WATSON V.
TARPLEY, 18 HOW.  517; GELPCKE V. CITY OF DUBUQUE, 1 WALL.  175. 

FN19  SEE CHEEVER V. WILSON, 9 WALL.  108, 123; ROBERTSON V. CARSON,
19 WALL.  94, 106-07; MORRIS V. GILMER, 129 U.S. 315, 328; DICKERMAN V.
NORTHERN TRUST CO., 176 U.S. 181, 192; WILLIAMSON V. OSENTON, 232 U.S.
619, 625. 

FN20  SEE, E.G., HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE
COMMITTEE ON THE JUDICIARY ON S. 937, S. 939, AND S. 3243, 72D CONG.,
1ST SESS. (1932) 6-8; HEARING BEFORE THE HOUSE COMMITTEE ON THE
JUDICIARY ON H.R. 10594, H.R. 4526, AND H.R. 11508, 72D CONG., 1ST
SESS., SER.  12(1932) 97-104; SEN. REP. NO. 530, 72D CONG., 1ST SESS.
(1932) 4-6; COLLIER, A PLEA AGAINST JURISDICTION BECAUSE OF DIVERSITY
(1913) 76 CENT. L.J. 263, 264, 266; FRANKFURTER, SUPRA NOTE 6; BALL,
SUPRA NOTE 6; WARREN, CORPORATIONS AND DIVERSITY OF CITIZENSHIP (1933)
19 VA. L. REV. 661, 686. 

FN21  THUS, BILLS WHICH WOULD ABROGATE THE DOCTRINE OF SWIFT V. TYSON
HAVE BEEN INTRODUCED.  S. 4333, 70TH CONG., 1ST SESS.; S. 96, 71ST
CONG., 1ST SESS.; H.R. 8094, 72D CONG., 1ST SESS.  SEE ALSO MILLS,
SUPRA NOTE 4, AT 68-69; DOBIE, SUPRA NOTE 6, AT 241; FRANKFURTER, SUPRA
NOTE 6, AT 530; CAMPBELL, SUPRA NOTE 6, AT 811.  STATE STATUTES ON
CONFLICTING QUESTIONS OF "GENERAL LAW" HAVE ALSO BEEN SUGGESTED.  SEE
HEISKELL, SUPRA NOTE 4, AT 760; DAWSON, SUPRA NOTE 6; DOBIE, SUPRA NOTE
6, AT 241. 

FN22  THE DOCTRINE HAS NOT BEEN WITHOUT DEFENDERS.  SEE ELIOT, THE
COMMON LAW OF THE FEDERAL COURTS (1902) 36 AM. L. REV. 498, 523-25;
A.B. PARKER, THE COMMON LAW JURISDICTION OF THE UNITED STATES COURTS
(1907) 17 YALE L.J. 1; SCHOFIELD, SWIFT V. TYSON:  UNIFORMITY OF JUDGE
MADE STATE LAW IN STATE AND FEDERAL COURTS (1910) 4 ILL. L. REV. 533;
BROWN, THE JURISDICTION OF THE FEDERAL COURTS BASED ON DIVERSITY OF
CITIZENSHIP (1929) 78 U. OF PA. L. REV. 179, 189-91; J.J. PARKER, THE
FEDERAL JURISDICTION AND RECENT ATTACKS UPON IT (1932) 18 A.B.A.J. 433,
438; YNTEMA, THE JURISDICTION OF THE FEDERAL COURTS IN CONTROVERSIES
BETWEEN CITIZENS OF DIFFERENT STATES (1933) 19 A.B.A.J. 71, 74-75;
BEUTEL, COMMON LAW JUDICIAL TECHNIQUE AND THE LAW OF NEGOTIABLE
INSTRUMENTS - TWO UNFORTUNATE DECISIONS (1934) 9 TULANE L. REV. 64. 

FN23  KUHN V. FAIRMONT COAL CO., 215 U.S. 349, 370-372; BLACK & WHITE
TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., 276 U.S. 518, 532-36. 

FN24  TOMPKINS ALSO CONTENDED THAT THE ALLEGED RULE OF THE FALCHETTI
CASE IS NOT IN ANY EVENT APPLICABLE HERE BECAUSE HE WAS STRUCK AT THE
INTERSECTION OF THE LONGITUDINAL PATHWAY AND A TRANSVERSE CROSSING. 
THE COURT BELOW FOUND IT UNNECESSARY TO CONSIDER THIS CONTENTION, AND
WE LEAVE THE QUESTION OPEN. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BUTLER. 

THE CASE PRESENTED BY THE EVIDENCE IS A SIMPLE ONE.  PLAINTIFF WAS
SEVERELY INJURED IN PENNSYLVANIA.  WHILE WALKING ON DEFENDANT'S RIGHT
OF WAY ALONG A MUCH-USED PATH AT THE END OF THE CROSS TIES OF ITS MAIN
TRACK, HE CAME INTO COLLISION WITH AN OPEN DOOR SWINGING FROM THE SIDE
OF A CAR IN A TRAIN GOING IN THE OPPOSITE DIRECTION.  HAVING BEEN
WARNED BY WHISTLE AND HEADLIGHT, HE SAW THE LOCOMOTIVE APPROACHING AND
HAD TIME AND SPACE ENOUGH TO STEP ASIDE AND SO AVOID DANGER.  TO
JUSTIFY HIS FAILURE TO GET OUT OF THE WAY, HE SAYS THAT UPON MANY OTHER
OCCASIONS HE HAD SAFELY WALKED THERE WHILE TRAINS PASSED. 

INVOKING JURISDICTION ON THE GROUND OF DIVERSITY OF CITIZENSHIP,
PLAINTIFF, A CITIZEN AND RESIDENT OF PENNSYLVANIA, BROUGHT THIS SUIT TO
RECOVER DAMAGES AGAINST DEFENDANT, A NEW YORK CORPORATION, IN THE
FEDERAL COURT FOR THE SOUTHERN DISTRICT OF THAT STATE.  THE ISSUES WERE
WHETHER NEGLIGENCE OF DEFENDANT WAS A PROXIMATE CAUSE OF HIS INJURIES
AND WHETHER NEGLIGENCE OF PLAINTIFF CONTRIBUTED.  HE CLAIMED THAT, BY
HAULING THE CAR WITH THE OPEN DOOR, DEFENDANT VIOLATED A DUTY TO HIM. 
THE DEFENDANT INSISTED THAT IT VIOLATED NO DUTY AND THAT PLAINTIFF'S
INJURIES WERE CAUSED BY HIS OWN NEGLIGENCE.  THE JURY GAVE HIM A
VERDICT ON WHICH THE TRIAL COURT ENTERED JUDGMENT; THE CIRCUIT COURT OF
APPEALS AFFIRMED.  90 F.(2D) 603. 

DEFENDANT MAINTAINED, CITING FALCHETTI V. PENNSYLVANIA R. CO., 307
PA. 203; 160 A. 859, AND KOONTZ V. B. & O.R. CO., 309 PA. 122; 163 A.
212, THAT THE ONLY DUTY OWED PLAINTIFF WAS TO REFRAIN FROM WILLFULLY OR
WANTONLY INJURING HIM; IT ARGUED THAT THE COURTS OF PENNSYLVANIA HAD SO
RULED WITH RESPECT TO PERSONS USING A CUSTOMARY LONGITUDINAL PATH, AS
DISTINGUISHED FROM ONE CROSSING THE TRACK.  THE PLAINTIFF INSISTED THAT
THE PENNSYLVANIA DECISIONS DID NOT ESTABLISH THE RULE FOR WHICH THE
DEFENDANT CONTENDED.  UPON THAT ISSUE THE CIRCUIT COURT OF APPEALS SAID
(P. 604):  "WE NEED NOT GO INTO THIS MATTER SINCE THE DEFENDANT
CONCEDES THAT THE GREAT WEIGHT OF AUTHORITY IN OTHER STATES IS TO THE
CONTRARY.  THIS CONCESSION IS FATAL TO ITS CONTENTION, FOR UPON
QUESTIONS OF GENERAL LAW THE FEDERAL COURTS ARE FREE, IN ABSENCE OF A
LOCAL STATUTE, TO EXERCISE THEIR INDEPENDENT JUDGMENT AS TO WHAT THE
LAW IS; AND IT IS WELL SETTLED THAT THE QUESTION OF THE RESPONSIBILITY
OF A RAILROAD FOR INJURIES CAUSED BY ITS SERVANTS IS ONE OF GENERAL
LAW."  UPON THAT BASIS THE COURT HELD THE EVIDENCE SUFFICIENT TO
SUSTAIN A FINDING THAT PLAINTIFF'S INJURIES WERE CAUSED BY THE
NEGLIGENCE OF DEFENDANT.  IT ALSO HELD THE QUESTION OF CONTRIBUTORY
NEGLIGENCE ONE FOR THE JURY. 

DEFENDANT'S PETITION FOR WRIT OF CERTIORARI PRESENTED TWO QUESTIONS:
WHETHER ITS DUTY TOWARD PLAINTIFF SHOULD HAVE BEEN DETERMINED IN
ACCORDANCE WITH THE LAW AS FOUND BY THE HIGHEST COURT OF PENNSYLVANIA,
AND WHETHER THE EVIDENCE CONCLUSIVELY SHOWED PLAINTIFF GUILTY OF
CONTRIBUTORY NEGLIGENCE.  PLAINTIFF CONTENDS THAT, AS ALWAYS HERETOFORE
HELD BY THIS COURT, THE ISSUES OF NEGLIGENCE AND CONTRIBUTORY
NEGLIGENCE ARE TO BE DETERMINED BY GENERAL LAW AGAINST WHICH LOCAL
DECISIONS MAY NOT BE HELD CONCLUSIVE; THAT DEFENDANT RELIES ON A
SOLITARY PENNSYLVANIA CASE OF DOUBTFUL APPLICABILITY AND THAT, EVEN IF
THE DECISIONS OF THE COURTS OF THAT STATE WERE DEEMED CONTROLLING, THE
SAME RESULT WOULD HAVE TO BE REACHED. 

NO CONSTITUTIONAL QUESTION WAS SUGGESTED OR ARGUED BELOW OR HERE. 
AND AS A GENERAL RULE, THIS COURT WILL NOT CONSIDER ANY QUESTION NOT
RAISED BELOW AND PRESENTED BY THE PETITION.  OLSON V. UNITED STATES,
292 U.S. 246, 262.  JOHNSON V. MANHATTAN RY. CO., 289 U.S. 479, 494. 
GUNNING V. COOLEY, 281 U.S. 90, 98.  HERE IT DOES NOT DECIDE EITHER OF
THE QUESTIONS PRESENTED BUT, CHANGING THE RULE OF DECISION IN FORCE
SINCE THE FOUNDATION OF THE GOVERNMENT, REMANDS THE CASE TO BE ADJUDGED
ACCORDING TO A STANDARD NEVER BEFORE DEEMED PERMISSIBLE. 

THE OPINION JUST ANNOUNCED STATES THAT "THE QUESTION FOR DECISION IS
WHETHER THE OFT-CHALLENGED DOCTRINE OF SWIFT V. TYSON (1842, 16 PET. 1)
SHALL NOW BE DISAPPROVED." 

THAT CASE INVOLVED THE CONSTRUCTION OF THE JUDICIARY ACT OF 1789,
SEC. 34:  "THE LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE
CONSTITUTION, TREATIES, OR STATUTES OF THE UNITED STATES OTHERWISE
REQUIRE OR PROVIDE, SHALL BE REGARDED AS RULES OF DECISION IN TRIALS AT
COMMON LAW IN THE COURTS OF THE UNITED STATES IN CASES WHERE THEY
APPLY."  EXPRESSING THE VIEW OF ALL THE MEMBERS OF THE COURT, MR.
JUSTICE STORY SAID (P. 18):  "IN THE ORDINARY USE OF LANGUAGE IT WILL
HARDLY BE CONTENDED THAT THE DECISIONS OF COURTS CONSTITUTE LAWS.  THEY
ARE, AT MOST, ONLY EVIDENCE OF WHAT THE LAWS ARE, AND NOT OF THEMSELVES
LAWS.  THEY ARE OFTEN RE-EXAMINED, REVERSED, AND QUALIFIED BY THE
COURTS THEMSELVES, WHENEVER THEY ARE FOUND TO BE EITHER DEFECTIVE, OR
ILL-FOUNDED, OR OTHERWISE INCORRECT.  THE LAWS OF A STATE ARE MORE
USUALLY UNDERSTOOD TO MEAN THE RULES AND ENACTMENTS PROMULGATED BY THE
LEGISLATIVE AUTHORITY THEREOF, OR LONG ESTABLISHED LOCAL CUSTOMS HAVING
THE FORCE OF LAWS.  IN ALL THE VARIOUS CASES, WHICH HAVE HITHERTO COME
BEFORE US FOR DECISION, THIS COURT HAVE UNIFORMLY SUPPOSED, THAT THE
TRUE INTERPRETATION OF THE THIRTY-FOURTH SECTION LIMITED ITS
APPLICATION TO STATE LAWS STRICTLY LOCAL, THAT IS TO SAY, TO THE
POSITIVE STATUTES OF THE STATE, AND THE CONSTRUCTION THEREOF ADOPTED BY
THE LOCAL TRIBUNALS, AND TO RIGHTS AND TITLES TO THINGS HAVING A
PERMANENT LOCALITY, SUCH AS THE RIGHTS AND TITLES TO REAL ESTATE, AND
OTHER MATTERS IMMOVABLE AND INTRATERRITORIAL IN THEIR NATURE AND
CHARACTER.  IT NEVER HAS BEEN SUPPOSED BY US, THAT THE SECTION DID
APPLY, OR WAS DESIGNED TO APPLY, TO QUESTIONS OF A MORE GENERAL NATURE,
NOT AT ALL DEPENDENT UPON LOCAL STATUTES OR LOCAL USAGES OF A FIXED AND
PERMANENT OPERATION, AS, FOR EXAMPLE, TO THE CONSTRUCTION OF ORDINARY
CONTRACTS OR OTHER WRITTEN INSTRUMENTS, AND ESPECIALLY TO QUESTIONS OF
GENERAL COMMERCIAL LAW, WHERE THE STATE TRIBUNALS ARE CALLED UPON TO
PERFORM THE LIKE FUNCTIONS AS OURSELVES, THAT IS, TO ASCERTAIN UPON
GENERAL REASONING AND LEGAL ANALOGIES, WHAT IS THE TRUE EXPOSITION OF
THE CONTRACT OR INSTRUMENT, OR WHAT IS THE JUST RULE FURNISHED BY THE
PRINCIPLES OF COMMERCIAL LAW TO GOVERN THE CASE.  AND WE HAVE NOT NOW
THE SLIGHTEST DIFFICULTY IN HOLDING, THAT THIS SECTION, UPON ITS TRUE
INTENDMENT AND CONSTRUCTION, IS STRICTLY LIMITED TO LOCAL STATUTES AND
LOCAL USAGES OF THE CHARACTER BEFORE STATED, AND DOES NOT EXTEND TO
CONTRACTS AND OTHER INSTRUMENTS OF A COMMERCIAL NATURE, THE TRUE
INTERPRETATION AND EFFECT WHEREOF ARE TO BE SOUGHT, NOT IN THE
DECISIONS OF THE LOCAL TRIBUNALS, BUT IN THE GENERAL PRINCIPLES AND
DOCTRINES OF COMMERCIAL JURISPRUDENCE.  UNDOUBTEDLY, THE DECISIONS OF
THE LOCAL TRIBUNALS UPON SUCH SUBJECTS ARE ENTITLED TO, AND WILL
RECEIVE, THE MOST DELIBERATE ATTENTION AND RESPECT OF THIS COURT; BUT
THEY CANNOT FURNISH POSITIVE RULES, OR CONCLUSIVE AUTHORITY, BY WHICH
OUR OWN JUDGMENTS ARE TO BE BOUND UP AND GOVERNED." 

THE DOCTRINE OF THAT CASE HAS BEEN FOLLOWED BY THIS COURT IN AN
UNBROKEN LINE OF DECISIONS.  SO FAR AS APPEARS, IT WAS NOT QUESTIONED
UNTIL MORE THAN 50 YEARS LATER, AND THEN BY A SINGLE JUDGE.  FN1
BALTIMORE & OHIO R. CO. V. BAUGH, 149 U.S. 368, 390.  IN THAT CASE, MR.
JUSTICE BREWER, SPEAKING FOR THE COURT, TRULY SAID (P. 373):  "WHATEVER
DIFFERENCES OF OPINION MAY HAVE BEEN EXPRESSED, HAVE NOT BEEN ON THE
QUESTION WHETHER A MATTER OF GENERAL LAW SHOULD BE SETTLED BY THE
INDEPENDENT JUDGMENT OF THIS COURT, RATHER THAN THROUGH AN ADHERENCE TO
THE DECISIONS OF THE STATE COURTS, BUT UPON THE OTHER QUESTION, WHETHER
A GIVEN MATTER IS ONE OF LOCAL OR OF GENERAL LAW." 

AND SINCE THAT DECISION, THE DIVISION OF OPINION IN THIS COURT HAS
BEEN ONE OF THE SAME CHARACTER AS IT WAS BEFORE.  IN 1910, MR. JUSTICE
HOLMES, SPEAKING FOR HIMSELF AND TWO OTHER JUSTICES, DISSENTED FROM THE
HOLDING THAT A COURT OF THE UNITED STATES WAS BOUND TO EXERCISE ITS OWN
INDEPENDENT JUDGMENT IN THE CONSTRUCTION OF A CONVEYANCE MADE BEFORE
THE STATE COURTS HAD RENDERED AN AUTHORITATIVE DECISION AS TO ITS
MEANING AND EFFECT.  KUHN V. FAIRMONT COAL CO., 215 U.S. 349.  BUT THAT
DISSENT ACCEPTED (P. 371) AS "SETTLED" THE DOCTRINE OF SWIFT V. TYSON,
AND INSISTED (P. 372) MERELY THAT THE CASE UNDER CONSIDERATION WAS BY
NATURE AND NECESSITY PECULIARLY LOCAL.    THEREAFTER, AS BEFORE, THE
DOCTRINE WAS CONSTANTLY APPLIED N2.  IN BLACK & WHITE TAXICAB CO. V.
BROWN & YELLOW TAXICAB CO., 276 U.S. 518, THREE JUDGES DISSENTED.  THE
WRITER OF THE DISSENT, MR. JUSTICE HOLMES, SAID, HOWEVER (P. 535):  "I
SHOULD LEAVE SWIFT V. TYSON UNDISTURBED, AS I INDICATED IN KUHN V.
FAIRMONT COAL CO., BUT I WOULD NOT ALLOW IT TO SPREAD THE ASSUMED
DOMINION INTO NEW FIELDS." 

NO MORE UNQUALIFIED APPLICATION OF THE DOCTRINE CAN BE FOUND THAN IN
DECISIONS OF THIS COURT SPEAKING THROUGH MR. JUSTICE HOLMES.  UNITED
ZINC CO. V. BRITT, 258 U.S. 268.  BALTIMORE & OHIO R. CO. V. GOODMAN,
275 U.S. 66, 70.  WITHOUT IN THE SLIGHTEST DEPARTING FROM THAT
DOCTRINE, BUT IMPLICITLY APPLYING IT, THE STRICTNESS OF THE RULE LAID
DOWN IN THE GOODMAN CASE WAS SOMEWHAT AMELIORATED BY POKORA V. WABASH
RY. CO., 292 U.S. 98. 

WHENEVER POSSIBLE, CONSISTENTLY WITH STANDARDS SUSTAINED BY REASON
AND AUTHORITY CONSTITUTING THE GENERAL LAW, THIS COURT HAS FOLLOWED
APPLICABLE DECISIONS OF STATE COURTS.  MUTUAL LIFE INS. CO. V. JOHNSON,
293 U.S. 335, 339.  SEE BURGESS V. SELIGMAN, 107 U.S. 20, 34.  BLACK &
WHITE TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., SUPRA, 530. 
UNQUESTIONABLY THE ISSUES OF NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE
UPON WHICH DECISION OF THIS CASE DEPENDS ARE QUESTIONS OF GENERAL LAW. 
HOUGH V. RAILWAY CO., 100 U.S. 213, 226.  LAKE SHORE & M.S. RY. CO. V.
PRENTICE, 147 U.S. 101.  BALTIMORE & OHIO R. CO. V. BAUGH, SUPRA.
GARDNER V. MICHIGAN CENTRAL R. CO., 150 U.S. 349, 358.  CENTRAL VERMONT
RY. CO. V. WHITE, 238 U.S. 507, 512.  BALTIMORE & OHIO R. CO. V.
GOODMAN, SUPRA.  POKORA V. WABASH RY. CO., SUPRA. 

WHILE AMENDMENTS TO SEC. 34 HAVE FROM TIME TO TIME BEEN SUGGESTED,
THE SECTION STANDS AS ORIGINALLY ENACTED.  EVIDENTLY CONGRESS HAS
INTENDED THROUGHOUT THE YEARS THAT THE RULE OF DECISION AS CONSTRUED
SHOULD CONTINUE TO GOVERN FEDERAL COURTS IN TRIALS AT COMMON LAW.  THE
OPINION JUST ANNOUNCED SUGGESTS THAT MR. WARREN'S RESEARCH HAS
ESTABLISHED THAT FROM THE BEGINNING THIS COURT HAS ERRONEOUSLY
CONSTRUED SEC. 34.  BUT THAT AUTHOR'S "NEW LIGHT ON THE HISTORY OF THE
FEDERAL JUDICIARY ACT OF 1789" DOES NOT PURPORT TO BE AUTHORITATIVE AND
WAS INTENDED TO BE NO MORE THAN SUGGESTIVE.  THE WEIGHT TO BE GIVEN TO
HIS DISCOVERY HAS NEVER BEEN DISCUSSED AT THIS BAR.  NOR DOES THE
OPINION INDICATE THE GROUND DISCLOSED BY THE RESEARCH.  IN HIS
DISSENTING OPINION IN THE TAXICAB CASE, MR. JUSTICE HOLMES REFERRED TO
MR. WARREN'S WORK BUT FAILED TO PERSUADE THE COURT THAT "LAWS" AS USED
IN SEC. 34 INCLUDED VARYING AND POSSIBLY ILL-CONSIDERED RULINGS BY THE
COURTS OF A STATE ON QUESTIONS OF COMMON LAW.  SEE, E.G., SWIFT V.
TYSON, SUPRA, 16-17.  IT WELL MAY BE THAT, IF THE COURT SHOULD NOW CALL
FOR ARGUMENT OF COUNSEL ON THE BASIS OF MR. WARREN'S RESEARCH, IT WOULD
ADHERE TO THE CONSTRUCTION IT HAS ALWAYS PUT UPON SEC. 34.  INDEED, THE
OPINION IN THIS CASE SO INDICATES.  FOR IT DECLARES:  "IF ONLY A
QUESTION OF STATUTORY CONSTRUCTION WERE INVOLVED, WE SHOULD NOT BE
PREPARED TO ABANDON A DOCTRINE SO WIDELY APPLIED THROUGHOUT A CENTURY. 
BUT THE UNCONSTITUTIONALITY OF THE COURSE PURSUED HAS NOW BEEN MADE
CLEAR AND COMPELS US TO DO SO."  THIS MEANS THAT, SO FAR AS CONCERNS
THE RULE OF DECISION NOW CONDEMNED, THE JUDICIARY ACT OF 1789, PASSED
TO ESTABLISH JUDICIAL COURTS TO EXERT THE JUDICIAL POWER OF THE UNITED
STATES, AND ESPECIALLY SEC. 34 OF THAT ACT AS CONSTRUED, IS
UNCONSTITUTIONAL; THAT FEDERAL COURTS ARE NOW BOUND TO FOLLOW DECISIONS
OF THE COURTS OF THE STATE IN WHICH THE CONTROVERSIES ARISE; AND THAT
CONGRESS IS POWERLESS OTHERWISE TO ORDAIN.  IT IS HARD TO FORESEE THE
CONSEQUENCES OF THE RADICAL CHANGE SO MADE.  OUR OPINION IN THE TAXICAB
CASE CITES NUMEROUS DECISIONS OF THIS COURT WHICH SERVE IN PART TO
INDICATE THE FIELD FROM WHICH IT IS NOW INTENDED FOREVER TO BAR THE
FEDERAL COURTS.  IT EXTENDS TO ALL MATTERS OF CONTRACTS AND TORTS NOT
POSITIVELY GOVERNED BY STATE ENACTMENTS.  COUNSEL SEARCHING FOR
PRECEDENT AND REASONING TO DISCLOSE COMMON-LAW PRINCIPLES ON WHICH TO
GUIDE CLIENTS AND CONDUCT LITIGATION ARE BY THIS DECISION TOLD THAT AS
TO ALL OF THESE QUESTIONS THE DECISIONS OF THIS COURT AND OTHER FEDERAL
COURTS ARE NO LONGER ANYWHERE AUTHORITATIVE. 

THIS COURT HAS OFTEN EMPHASIZED ITS RELUCTANCE TO CONSIDER
CONSTITUTIONAL QUESTIONS, AND THAT LEGISLATION WILL NOT BE HELD INVALID
AS REPUGNANT TO THE FUNDAMENTAL LAW IF THE CASE MAY BE DECIDED UPON ANY
OTHER GROUND.  IN VIEW OF GRAVE CONSEQUENCES LIABLE TO RESULT FROM
ERRONEOUS EXERTION OF ITS POWER TO SET ASIDE LEGISLATION, THE COURT
SHOULD MOVE CAUTIOUSLY, SEEK ASSISTANCE OF COUNSEL, ACT ONLY AFTER
AMPLE DELIBERATION, SHOW THAT THE QUESTION IS BEFORE THE COURT, THAT
ITS DECISION CANNOT BE AVOIDED BY CONSTRUCTION OF THE STATUTE ASSAILED
OR OTHERWISE, INDICATE PRECISELY THE PRINCIPLE OR PROVISION OF THE
CONSTITUTION HELD TO HAVE BEEN TRANSGRESSED, AND FULLY DISCLOSE THE
REASONS AND AUTHORITIES FOUND TO WARRANT THE CONCLUSION OF INVALIDITY. 
THESE SAFEGUARDS AGAINST THE IMPROVIDENT USE OF THE GREAT POWER TO
INVALIDATE LEGISLATION ARE SO WELL-GROUNDED AND FAMILIAR THAT STATEMENT
OF REASONS OR CITATION OF AUTHORITY TO SUPPORT THEM IS NO LONGER
NECESSARY.  BUT SEE E.G.:  CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11
PET. 420, 553; TOWNSHIP OF PINE GROVE V. TALCOTT, 19 WALL.  666, 673;
CHICAGO & G.T. RY. CO. V. WELLMAN, 143 U.S. 339, 345; BAKER V. GRICE,
169 U.S. 284, 292; MARTIN V. DISTRICT OF COLUMBIA, 205 U.S. 135, 140. 

SO FAR AS APPEARS, NO LITIGANT HAS EVER CHALLENGED THE POWER OF
CONGRESS TO ESTABLISH THE RULE AS CONSTRUED.  IT HAS SO LONG ENDURED
THAT ITS DESTRUCTION NOW WITHOUT APPROPRIATE DELIBERATION CANNOT BE
JUSTIFIED.  THERE IS NOTHING IN THE OPINION TO SUGGEST THAT
CONSIDERATION OF ANY CONSTITUTIONAL QUESTION IS NECESSARY TO A DECISION
OF THE CASE.  BY WAY OF REASONING, IT CONTAINS NOTHING THAT REQUIRES
THE CONCLUSION REACHED.  ADMITTEDLY, THERE IS NO AUTHORITY TO SUPPORT
THAT CONCLUSION.  AGAINST THE PROTEST OF THOSE JOINING IN THIS OPINION,
THE COURT DECLINES TO ASSIGN THE CASE FOR REARGUMENT.  IT MAY NOT
JUSTLY BE ASSUMED THAT THE LABOR AND ARGUMENT OF COUNSEL FOR THE
PARTIES WOULD NOT DISCLOSE THE RIGHT CONCLUSION AND AID THE COURT IN
THE STATEMENT OF REASONS TO SUPPORT IT.  INDEED, IT WOULD HAVE BEEN
APPROPRIATE TO GIVE CONGRESS OPPORTUNITY TO BE HEARD BEFORE DEVESTING
IT OF POWER TO PRESCRIBE RULES OF DECISION TO BE FOLLOWED IN THE COURTS
OF THE UNITED STATES.  SEE MYERS V. UNITED STATES, 272 U.S. 52, 176. 

THE COURSE PURSUED BY THE COURT IN THIS CASE IS REPUGNANT TO THE ACT
OF CONGRESS OF AUGUST 24, 1937, 50 STAT. 751.  IT DECLARES:  "THAT
WHENEVER THE CONSTITUTIONALITY OF ANY ACT OF CONGRESS AFFECTING THE
PUBLIC INTEREST IS DRAWN IN QUESTION IN ANY COURT OF THE UNITED STATES
IN ANY SUIT OR PROCEEDING TO WHICH THE UNITED STATES, OR ANY AGENCY
THEREOF, OR ANY OFFICER OR EMPLOYEE THEREOF, AS SUCH OFFICER OR
EMPLOYEE, IS NOT A PARTY, THE COURT HAVING JURISDICTION OF THE SUIT OR
PROCEEDING SHALL CERTIFY SUCH FACT TO THE ATTORNEY GENERAL.  IN ANY
SUCH CASE THE COURT SHALL PERMIT THE UNITED STATES TO INTERVENE AND
BECOME A PARTY FOR PRESENTATION OF EVIDENCE (IF EVIDENCE IS OTHERWISE
RECEIVABLE IN SUCH SUIT OR PROCEEDING) AND ARGUMENT UPON THE QUESTION
OF THE CONSTITUTIONALITY OF SUCH ACT.  IN ANY SUCH SUIT OR PROCEEDING
THE UNITED STATES SHALL, SUBJECT TO THE APPLICABLE PROVISIONS OF LAW,
HAVE ALL THE RIGHTS OF A PARTY AND THE LIABILITIES OF A PARTY AS TO
COURT COSTS TO THE EXTENT NECESSARY FOR A PROPER PRESENTATION OF THE
FACTS AND LAW RELATING TO THE CONSTITUTIONALITY OF SUCH ACT."  THAT
PROVISION EXTENDS TO THIS COURT.  SEC. 5.  IF DEFENDANT HAD APPLIED FOR
AND OBTAINED THE WRIT OF CERTIORARI UPON THE CLAIM THAT, AS NOW HELD,
CONGRESS HAS NO POWER TO PRESCRIBE THE RULE OF DECISION, SEC. 34 AS
CONSTRUED, IT WOULD HAVE BEEN THE DUTY OF THIS COURT TO ISSUE THE
PRESCRIBED CERTIFICATE TO THE ATTORNEY GENERAL IN ORDER THAT THE UNITED
STATES MIGHT INTERVENE AND BE HEARD ON THE CONSTITUTIONAL QUESTION. 
WITHIN THE PURPOSE OF THE STATUTE AND ITS TRUE INTENT AND MEANING, THE
CONSTITUTIONALITY OF THAT MEASURE HAS BEEN "DRAWN IN QUESTION." 
CONGRESS INTENDED TO GIVE THE UNITED STATES THE RIGHT TO BE HEARD IN
EVERY CASE INVOLVING CONSTITUTIONALITY OF AN ACT AFFECTING THE PUBLIC
INTEREST.  IN VIEW OF THE RULE THAT, IN THE ABSENCE OF CHALLENGE OF
CONSTITUTIONALITY, STATUTES WILL NOT HERE BE INVALIDATED ON THAT
GROUND, THE ACT OF AUGUST 24, 1937 EXTENDS TO CASES WHERE
CONSTITUTIONALITY IS FIRST "DRAWN IN QUESTION" BY THE COURT.  NO
EXTRAORDINARY OR UNUSUAL ACTION BY THE COURT AFTER SUBMISSION OF THE
CAUSE SHOULD BE PERMITTED TO FRUSTRATE THE WHOLESOME PURPOSE OF THAT
ACT.  THE DUTY IT IMPOSES OUGHT HERE TO BE WILLINGLY ASSUMED.  IF IT
WERE DOUBTFUL WHETHER THIS CASE IS WITHIN THE SCOPE OF THE ACT, THE
COURT SHOULD GIVE THE UNITED STATES OPPORTUNITY TO INTERVENE AND, IF SO
ADVISED, TO PRESENT ARGUMENT ON THE CONSTITUTIONAL QUESTION, FOR
UNDOUBTEDLY IT IS ONE OF GREAT PUBLIC IMPORTANCE.  THAT WOULD BE TO
CONSTRUE THE ACT ACCORDING TO ITS MEANING. 

THE COURT'S OPINION IN ITS FIRST SENTENCE DEFINES THE QUESTION TO BE
WHETHER THE DOCTRINE OF SWIFT V. TYSON SHALL NOW BE DISAPPROVED; IT
RECITES (P. 72) THAT CONGRESS IS WITHOUT POWER TO PRESCRIBE RULES OF
DECISION THAT HAVE BEEN FOLLOWED BY FEDERAL COURTS AS A RESULT OF THE
CONSTRUCTION OF SEC. 34 IN SWIFT V. TYSON AND SINCE; AFTER DISCUSSION,
IT DECLARES (PP. 77-78) THAT "THE UNCONSTITUTIONALITY OF THE COURSE
PURSUED (MEANING THE RULE OF DECISION RESULTING FROM THAT CONSTRUCTION)
COMPELS" ABANDONMENT OF THE DOCTRINE SO LONG APPLIED; AND THEN NEAR THE
END OF THE LAST PAGE THE COURT STATES THAT IT DOES NOT HOLD SEC. 34
UNCONSTITUTIONAL, BUT MERELY THAT, IN APPLYING THE DOCTRINE OF SWIFT V.
TYSON CONSTRUING IT, THIS COURT AND THE LOWER COURTS HAVE INVADED
RIGHTS WHICH ARE RESERVED BY THE CONSTITUTION TO THE SEVERAL STATES. 
BUT, PLAINLY THROUGH THE FORM OF WORDS EMPLOYED, THE SUBSTANCE OF THE
DECISION APPEARS; IT STRIKES DOWN AS UNCONSTITUTIONAL SEC. 34 AS
CONSTRUED BY OUR DECISIONS; IT DIVESTS THE CONGRESS OF POWER TO
PRESCRIBE RULES TO BE FOLLOWED BY FEDERAL COURTS WHEN DECIDING
QUESTIONS OF GENERAL LAW.  IN THAT BROAD FIELD IT COMPELS THIS AND THE
LOWER FEDERAL COURTS TO FOLLOW DECISIONS OF THE COURTS OF A PARTICULAR
STATE. 

I AM OF OPINION THAT THE CONSTITUTIONAL VALIDITY OF THE RULE NEED NOT
BE CONSIDERED, BECAUSE UNDER THE LAW, AS FOUND BY THE COURTS OF
PENNSYLVANIA AND GENERALLY THROUGHOUT THE COUNTRY, IT IS PLAIN THAT THE
EVIDENCE REQUIRED A FINDING THAT PLAINTIFF WAS GUILTY OF NEGLIGENCE
THAT CONTRIBUTED TO CAUSE HIS INJURIES AND THAT THE JUDGMENT BELOW
SHOULD BE REVERSED UPON THAT GROUND. 

FN1  MR. JUSTICE FIELD FILED A DISSENTING OPINION, SEVERAL SENTENCES
OF WHICH ARE QUOTED IN THE DECISION JUST ANNOUNCED.  THE DISSENT FAILED
TO IMPRESS ANY OF HIS ASSOCIATES.  IT ASSUMES THAT ADHERENCE TO SEC. 34
AS CONSTRUED INVOLVES A SUPERVISION OVER LEGISLATIVE OR JUDICIAL ACTION
OF THE STATES.  THERE IS NO FOUNDATION FOR THAT SUGGESTION.  CLEARLY
THE DISSENT OF THE LEARNED JUSTICE RESTS UPON MISAPPREHENSION OF THE
RULE.  HE JOINED IN APPLYING THE DOCTRINE FOR MORE THAN A QUARTER OF A
CENTURY BEFORE HIS DISSENT.  THE REPORTS DO NOT DISCLOSE THAT HE
OBJECTED TO IT IN ANY LATER CASE.  CF. OAKES V. MASE, 165 U.S. 363. 

FN2  IN SALEM TRUST CO. V. MANUFACTURERS' FINANCE CO., 264 U.S. 182,
MR. JUSTICE HOLMES AND MR. JUSTICE BRANDEIS CONCURRED (P. 200) IN THE
JUDGMENT OF THE COURT UPON A QUESTION OF GENERAL LAW ON THE GROUND THAT
THE RIGHTS OF THE PARTIES WERE GOVERNED BY STATE LAW. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 

MR. JUSTICE REED. 

I CONCUR IN THE CONCLUSION REACHED IN THIS CASE, IN THE DISAPPROVAL
OF THE DOCTRINE OF SWIFT V. TYSON, AND IN THE REASONING OF THE MAJORITY
OPINION EXCEPT IN SO FAR AS IT RELIES UPON THE UNCONSTITUTIONALITY OF
THE "COURSE PURSUED" BY THE FEDERAL COURTS. 

THE "DOCTRINE OF SWIFT V. TYSON," AS I UNDERSTAND IT, IS THAT THE
WORDS "THE LAWS," AS USED IN SEC. 34, LINE ONE, OF THE FEDERAL
JUDICIARY ACT OF SEPTEMBER 24, 1789, DO NOT INCLUDE IN THEIR MEANING
"THE DECISIONS OF THE LOCAL TRIBUNALS."  MR. JUSTICE STORY, IN DECIDING
THAT POINT, SAID (16 PET. 19):  "UNDOUBTEDLY, THE DECISIONS OF THE
LOCAL TRIBUNALS UPON SUCH SUBJECTS ARE ENTITLED TO, AND WILL RECEIVE,
THE MOST DELIBERATE ATTENTION AND RESPECT OF THIS COURT; BUT THEY
CANNOT FURNISH POSITIVE RULES, OR CONCLUSIVE AUTHORITY, BY WHICH OUR
OWN JUDGMENTS ARE TO BE BOUND UP AND GOVERNED." 

TO DECIDE THE CASE NOW BEFORE US AND TO "DISAPPROVE" THE DOCTRINE OF
SWIFT V. TYSON REQUIRES ONLY THAT WE SAY THAT THE WORDS "THE LAWS"
INCLUDE IN THEIR MEANING THE DECISIONS OF THE LOCAL TRIBUNALS.  AS THE
MAJORITY OPINION SHOWS, BY ITS REFERENCE TO MR. WARREN'S RESEARCHES AND
THE FIRST QUOTATION FROM MR. JUSTICE HOLMES, THAT THIS COURT IS NOW OF
THE VIEW THAT "LAWS" INCLUDES "DECISIONS," IT IS UNNECESSARY TO GO
FURTHER AND DECLARE THAT THE "COURSE PURSUED" WAS "UNCONSTITUTIONAL,"
INSTEAD OF MERELY ERRONEOUS. 

THE "UNCONSTITUTIONAL" COURSE REFERRED TO IN THE MAJORITY OPINION IS
APPARENTLY THE RULING IN SWIFT V. TYSON THAT THE SUPPOSED OMISSION OF
CONGRESS TO LEGISLATE AS TO THE EFFECT OF DECISIONS LEAVES FEDERAL
COURTS FREE TO INTERPRET GENERAL LAW FOR THEMSELVES.  I AM NOT AT ALL
SURE WHETHER, IN THE ABSENCE OF FEDERAL STATUTORY DIRECTION, FEDERAL
COURTS WOULD BE COMPELLED TO FOLLOW STATE DECISIONS.  THERE WAS
SUFFICIENT DOUBT ABOUT THE MATTER IN 1789 TO INDUCE THE FIRST CONGRESS
TO LEGISLATE.  NO FORMER OPINIONS OF THIS COURT HAVE PASSED UPON IT.
MR. JUSTICE HOLMES EVIDENTLY SAW NOTHING "UNCONSTITUTIONAL" WHICH
REQUIRED THE OVERRULING OF SWIFT V. TYSON, FOR HE SAID IN THE VERY
OPINION QUOTED BY THE MAJORITY, "I SHOULD LEAVE SWIFT V. TYSON
UNDISTURBED, AS I INDICATED IN KUHN V. FAIRMONT COAL CO., BUT I WOULD
NOT ALLOW IT TO SPREAD THE ASSUMED DOMINION INTO NEW FIELDS."  BLACK &
WHITE TAXICAB CO. V. BROWN & YELLOW TAXICAB CO., 276 U.S. 518, 535.  IF
THE OPINION COMMITS THIS COURT TO THE POSITION THAT THE CONGRESS IS
WITHOUT POWER TO DECLARE WHAT RULES OF SUBSTANTIVE LAW SHALL GOVERN THE
FEDERAL COURTS, THAT CONCLUSION ALSO SEEMS QUESTIONABLE.  THE LINE
BETWEEN PROCEDURAL AND SUBSTANTIVE LAW IS HAZY BUT NO ONE DOUBTS
FEDERAL POWER OVER PROCEDURE.  WAYMAN V. SOUTHARD, 10 WHEAT.  1.  THE
JUDICIARY ARTICLE AND THE "NECESSARY AND PROPER" CLAUSE OF ARTICLE ONE
MAY FULLY AUTHORIZE LEGISLATION, SUCH AS THIS SECTION OF THE JUDICIARY
ACT. 

IN THIS COURT, STARE DECISIS, IN STATUTORY CONSTRUCTION, IS A USEFUL
RULE, NOT AN INEXORABLE COMMAND.  BURNET V. CORONADO OIL & GAS CO., 285
U.S. 393, DISSENT, P. 406, NOTE 1.  COMPARE READ V. BISHOP OF LINCOLN,
(1892) A.C. 644, 655; LONDON STREET TRAMWAYS CO. V. LONDON COUNTY
COUNCIL, (1898) A.C. 375, 379.  IT SEEMS PREFERABLE TO OVERTURN AN
ESTABLISHED CONSTRUCTION OF AN ACT OF CONGRESS, RATHER THAN, IN THE
CIRCUMSTANCES OF THIS CASE, TO INTERPRET THE CONSTITUTION.  CF. UNITED
STATES V. DELAWARE & HUDSON CO., 213 U.S. 366. 

THERE IS NO OCCASION TO DISCUSS FURTHER THE RANGE OR SOUNDNESS OF
THESE FEW PHRASES OF THE OPINION.  IT IS SUFFICIENT NOW TO CALL
ATTENTION TO THEM AND EXPRESS MY OWN NON-ACQUIESCENCE. 
..END :




















HINDERLIDER V. LA PLATA CO., 304 U.S. 92 


NO. 437.  ARGUED FEBRUARY 10, 11, 1938.  - DECIDED APRIL 25, 1938.  -
101 COLO. 73 - 70 P.2D 849, REVERSED. 


1.  THE WATER OF AN INTERSTATE STREAM, USED BENEFICIALLY IN EACH OF
THE TWO STATES THROUGH WHICH IT FLOWS, MUST BE EQUITABLY APPORTIONED
BETWEEN THE TWO.  P. 101. 

THE CLAIM THAT ON INTERSTATE STREAMS THE UPPER STATE HAS SUCH
OWNERSHIP OR CONTROL OF THE WHOLE STREAM AS ENTITLES IT TO DIVERT ALL
THE WATER, REGARDLESS OF ANY INJURY OR PREJUDICE TO THE LOWER STATE,
HAS BEEN CONSISTENTLY DENIED BY THIS COURT.  P. 102. 

2.  A DECREE OF A STATE COURT CAN NOT CONFER A RIGHT IN THE WATER OF
AN INTERSTATE STREAM IN EXCESS OF THE STATE'S EQUITABLE PORTION OF SUCH
WATER.  P. 102. 

3.  A DECREE OF A STATE COURT ADJUDICATING TO A LOCAL USER A RIGHT IN
THE WATER OF AN INTERSTATE STREAM IN EXCESS OF THE STATE'S EQUITABLE
PORTION THEREOF IS NOT RES JUDICATA AS TO ANOTHER STATE AND ITS
CITIZENS WHO CLAIM THE RIGHT TO DIVERT WATER FROM THE STREAM IN SUCH
OTHER STATE, AND WHO WERE NOT PARTIES TO THE PROCEEDINGS.  P. 103. 

4.  IT IS NOT ESSENTIAL TO THE VALIDITY OF A COMPACT BETWEEN STATES
FOR THE APPORTIONMENT OF THE WATER OF AN INTERSTATE STREAM THAT THERE
BE JUDICIAL OR QUASI-JUDICIAL DECISION IN RESPECT OF EXISTING RIGHTS. 
P. 104. 

5.  WHETHER THE APPORTIONMENT OF THE WATER OF AN INTERSTATE STREAM BE
MADE BY COMPACT BETWEEN THE UPPER AND LOWER STATES WITH THE CONSENT OF
CONGRESS OR BY A DECREE OF THIS COURT, THE APPORTIONMENT IS BINDING
UPON THE CITIZENS OF EACH STATE AND ALL WATER CLAIMANTS, INCLUDING
GRANTEES WHOSE RIGHTS ANTEDATE THE COMPACT OR DECREE.  P. 106. 

6.  A COMPACT BETWEEN TWO STATES FOR APPORTIONMENT OF THE WATER OF AN
INTERSTATE STREAM MAY PROVIDE FOR DIVISION OF THE WATER AT TIMES, AND
AT OTHER TIMES FOR THE USE OF THE ENTIRE FLOW BY ONE STATE OR THE OTHER
IN ALTERNATING PERIODS; AND AUTHORITY MAY VALIDLY BE DELEGATED TO THE
STATES' ENGINEERS TO DETERMINE WHEN THE USE SHOULD BE ROTATED.  P.
108. 

SO HELD WHERE THE EVIDENCE CONCLUSIVELY ESTABLISHED THAT, AT THE
TIMES WHEN ROTATION WAS DETERMINED UPON, THE STREAM COULD IN THAT WAY
BE MORE EFFICIENTLY USED. 

7.  NO VITIATING INFIRMITY BEING HERE SHOWN IN THE PROCEEDINGS
PRELIMINARY TO THE LA PLATA RIVER COMPACT OR IN ITS APPLICATION, THE
APPORTIONMENT MADE BY IT BETWEEN COLORADO AND NEW MEXICO OF THE WATER
OF THE LA PLATA RIVER COULD NOT BE HELD TO DEPRIVE A COLORADO
APPROPRIATOR OF ANY VESTED RIGHT, EVEN THOUGH A RIGHT HAD PREVIOUSLY
BEEN ADJUDICATED TO HIM IN A WATER PROCEEDING IN A COURT OF THAT
STATE.  P. 108. 

8.  THE ASSENT OF CONGRESS TO THE LA PLATA RIVER COMPACT BETWEEN
COLORADO AND NEW MEXICO DOES NOT MAKE THE COMPACT A "TREATY OR STATUTE
OF THE UNITED STATES" WITHIN THE MEANING OF SEC. 237(A) OF THE JUDICIAL
CODE, AND A DECISION OF THE STATE COURT AGAINST ITS VALIDITY IS NOT
APPEALABLE TO THIS COURT.  P. 109. 

9.  A CLAIM BASED ON THE EQUITABLE INTERSTATE APPORTIONMENT OF WATER,
LIKE ONE BASED ON THE PROPER LOCATION OF A STATE BOUNDARY, IS NOT
WITHIN THE PROVISIONS OF SEC. 237(A) OF THE JUDICIAL CODE.  P. 109. 

10.  THE DECISION OF THE SUPREME COURT OF COLORADO IN THIS CASE,
RESTRAINING THE STATE ENGINEER FROM TAKING ACTION REQUIRED BY THE LA
PLATA RIVER COMPACT, DENIED AN IMPORTANT CLAIM UNDER THE CONSTITUTION
AND IS REVIEWABLE BY THIS COURT ON CERTIORARI UNDER SEC. 237(B) OF THE
JUDICIAL CODE.  P. 110. 

11.  WHETHER THE WATER OF A STREAM MUST BE APPORTIONED BETWEEN THE
TWO STATES THROUGH WHICH IT FLOWS IS A FEDERAL QUESTION, UPON WHICH
NEITHER THE STATUTES NOR DECISIONS OF EITHER STATE CAN BE CONCLUSIVE. 
P. 110. 

12.  THAT THE STATES WHICH ARE PARTIES TO A COMPACT ARE NOT PARTIES
TO THE SUIT AND CAN NOT BE MADE SO, DOES NOT DEPRIVE THIS COURT OF
JURISDICTION TO DETERMINE THE VALIDITY AND EFFECT OF THE COMPACT.  P.
110. 

HINDERLIDER, STATE ENGINEER, ET AL. V. LA PLATA RIVER & CHERRY CREEK
DITCH CO. 

APPEAL FROM THE SUPREME COURT OF COLORADO. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT REQUIRING WATER OFFICIALS OF
COLORADO TO PERMIT DIVERSION OF WATER FROM THE LA PLATA RIVER BY THE
RESPONDENT DITCH COMPANY, NOTWITHSTANDING CONTRARY PROVISIONS OF THE LA
PLATA RIVER COMPACT.  APPEAL DISMISSED; CERTIORARI GRANTED. 

ATTORNEY GENERAL CUMMINGS FILED A MEMORANDUM BY WHICH HE SOUGHT TO
MAINTAIN THAT, WITHIN THE MEANING OF THE ACT OF AUG. 24, 1937, C. 754,
50 STAT. 751, THIS COURT IS "A COURT OF THE UNITED STATES" AND THE
STATE COMPACT HERE IN QUESTION, APPROVED BY CONGRESS, IS AN "ACT OF
CONGRESS AFFECTING THE PUBLIC INTEREST," THE CONSTITUTIONALITY OF WHICH
IS DRAWN IN QUESTION ON THE APPEAL.  THE ATTORNEY GENERAL AND ACTING
SOLICITOR GENERAL BELL ALSO FILED A MEMORANDUM SUGGESTING THE INTEREST
OF THE UNITED STATES IN INTERSTATE WATER COMPACTS AND INTERSTATE
COMPACTS GENERALLY. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE LA PLATA RIVER AND CHERRY CREEK DITCH COMPANY, A COLORADO
CORPORATION, OWNS A DITCH BY WHICH IT DIVERTS FROM THAT RIVER IN
COLORADO WATER FOR IRRIGATION.  ON JULY 5, 1928, IT BROUGHT IN THE
DISTRICT COURT FOR LA PLATA COUNTY A SUIT WHICH CHARGED THAT SINCE JUNE
24, 1928, THE DEFENDANTS, HINDERLIDER, STATE ENGINEER OF COLORADO, AND
HIS SUBORDINATES HAVE SO ADMINISTERED THE WATER OF THE RIVER AS TO
DEPRIVE THE PLAINTIFF OF WATER WHICH IT CLAIMS THE RIGHT TO DIVERT.  A
MANDATORY INJUNCTION WAS SOUGHT. 

THE DEFENDANTS ADMIT THAT IN ADMINISTERING THE WATER OF THE STREAM
DURING THE PERIOD NAMED THEY SHUT THE HEADGATE OF THE DITCH COMPANY SO
AS TO DEPRIVE IT OF WATER FOR PURPOSES OF IRRIGATION; BUT ASSERT THAT
THEY DID SO PURSUANT TO THE REQUIREMENTS OF THE LA PLATA RIVER COMPACT
ENTERED INTO BY THE STATES OF COLORADO AND NEW MEXICO WITH THE CONSENT
OF THE CONGRESS OF THE UNITED STATES.  THE COMPACT PROVIDES THAT EACH
STATE SHALL RECEIVE A DEFINITE SHARE OF WATER UNDER THE VARYING
CONDITIONS WHICH OBTAIN DURING THE YEAR, AND, AMONG OTHER THINGS:  FN1 

"1.  AT ALL TIMES BETWEEN THE 1ST DAY OF DECEMBER AND THE 15TH DAY OF
THE SUCCEEDING FEBRUARY EACH STATE SHALL HAVE THE UNRESTRICTED RIGHT TO
THE USE OF ALL WATER WHICH MAY FLOW WITHIN ITS BOUNDARIES. 

"2.  BY REASON OF THE USUAL ANNUAL RISE AND FALL, THE FLOW OF SAID
RIVER BETWEEN THE 15TH DAY OF FEBRUARY AND THE 1ST DAY OF DECEMBER OF
EACH YEAR SHALL BE APPORTIONED BETWEEN THE STATES IN THE FOLLOWING
MANNER: 

"(A)  EACH STATE SHALL HAVE THE UNRESTRICTED RIGHT TO USE ALL THE
WATERS WITHIN ITS BOUNDARIES IN EACH DAY WHEN THE MEAN DAILY FLOW AT
THE INTERSTATE STATION IS ONE HUNDRED CUBIC FEET PER SECOND, OR MORE. 

"(B)  ON ALL OTHER DAYS, THE STATE OF COLORADO SHALL DELIVER AT THE
INTERSTATE STATION A QUANTITY OF WATER EQUIVALENT TO ONE-HALF OF THE
MEAN FLOW AT THE HESPERUS STATION FOR THE PRECEDING DAY, BUT NOT TO
EXCEED ONE HUNDRED CUBIC FEET PER SECOND. 

"3.  WHENEVER THE FLOW OF THE RIVER IS SO LOW THAT IN THE JUDGMENT OF
THE STATE ENGINEERS OF THE STATES THE GREATEST BENEFICIAL USE OF ITS
WATERS MAY BE SECURED BY DISTRIBUTING ALL OF ITS WATER SUCCESSIVELY TO
THE LANDS IN EACH STATE IN ALTERNATING PERIODS, IN LIEU OF DELIVERY OF
WATER AS PROVIDED IN THE SECOND PARAGRAPH OF THIS ARTICLE, THE USE OF
THE WATERS MAY BE SO ROTATED BETWEEN THE TWO STATES IN SUCH MANNER, FOR
SUCH PERIODS, AND TO CONTINUE FOR SUCH TIME AS THE STATE ENGINEERS MAY
JOINTLY DETERMINE." 

FOR THE ADMINISTRATION OF WATER RIGHTS, COLORADO AND NEW MEXICO EACH
SET UP AN ADMINISTRATIVE SYSTEM WITH THE STATE ENGINEERS AT ITS HEAD. 
THE STATE ENGINEERS AGREED THAT, IN ORDER TO PUT THE WATER TO ITS MOST
EFFICIENT USE IN THE HOT SUMMER MONTHS OF 1928, WHEN THE RIVER WAS VERY
LOW, THE WHOLE OF THE AVAILABLE SUPPLY SHOULD BE ROTATED BETWEEN THE
TWO STATES.  IN OTHER WORDS, THAT EACH STATE SHOULD BE PERMITTED TO
ENJOY THE ENTIRE FLOW OF THE RIVER DURING ALTERNATING TEN-DAY PERIODS. 
DURING THE TEN DAYS COMMENCING JUNE 24, 1928, ALL THE WATER OF THE
RIVER (EXCEPT SMALL AMOUNTS DIVERTED IN COLORADO FOR DOMESTIC AND STOCK
REQUIREMENTS) WAS THUS ALLOWED TO PASS TO NEW MEXICO; AND DURING THE
SUCCEEDING TEN-DAY PERIOD ALL THE WATER IN THE STREAM WAS SIMILARLY
ALLOWED TO BE DIVERTED IN COLORADO.  THE DEFENDANT WATER OFFICIALS
CONTEND THAT IN SO ROTATING THE WATER OF THE STREAM THEY ADMINISTERED
IT AS REQUIRED BY THE COMPACT AND WISELY. 

THE LA PLATA RIVER RISES IN THE MOUNTAINS OF COLORADO, FLOWS IN A
SOUTHERLY DIRECTION UNTIL IT REACHES THE BOUNDARY OF NEW MEXICO AND IN
THE LATTER STATE UNTIL IT EMPTIES INTO THE SAN JUAN RIVER.  THE STREAM
IS NON-NAVIGABLE; HAS A NARROW WATERSHED; AND A LARGE RUN-OFF IN THE
EARLY SPRING.  THEN THE QUANTITY FLOWING BEGINS TO FALL RAPIDLY; AND
DURING THE SUMMER MONTHS LITTLE WATER IS AVAILABLE FOR IRRIGATION.  IN
EACH STATE THE WATER OF THE STREAM HAS LONG BEEN USED FOR IRRIGATION;
AND EACH ADOPTED THE SO-CALLED APPROPRIATION DOCTRINE OF WATER USE. 
FN2  UNDER THAT DOCTRINE THE FIRST PERSON WHO ACTS TOWARD THE DIVERSION
OF WATER FROM A NATURAL STREAM AND THE APPLICATION OF SUCH WATER TO A
BENEFICIAL USE HAS THE FIRST RIGHT, PROVIDED HE DILIGENTLY CONTINUES
HIS ENTERPRISE TO COMPLETION AND BENEFICIALLY APPLIES THE WATER.  THE
RIGHTS OF SUBSEQUENT APPROPRIATIONS ARE SUBJECT TO RIGHTS ALREADY HELD
IN THE STREAM. 

THE RELATIVE RIGHTS OF ALL CLAIMANTS TO DIVERT IN COLORADO WATER FROM
THE LA PLATA RIVER WERE ADJUDICATED IN A PROCEEDING UNDER THE COLORADO
STATUTES.  BY DECREE THEREIN OF JANUARY 12, 1898(AND LATER AMENDED) THE
DITCH COMPANY WAS DECLARED ENTITLED TO DIVERT 39 1/4 CUBIC FEET OF
WATER PER SECOND, SUBJECT TO FIVE SENIOR PRIORITIES AGGREGATING 19
SECOND FEET.  ON JUNE 24, 1928, THERE WAS IN THE STREAM, AT THE
RECOGNIZED COLORADO GAUGING STATION, 57 SECOND FEET OF WATER.  THE
DITCH COMPANY CLAIMED THAT BY REASON OF THE 1898 DECREE IT WAS ENTITLED
TO ALL THE WATER IN THE STREAM EXCEPT THAT REQUIRED TO SATISFY THE
COLORADO PRIORITIES.  IF IT HAD BEEN PERMITTED TO DRAW ALL THAT WATER,
NONE WOULD HAVE BEEN AVAILABLE TO THE NEW MEXICO WATER CLAIMANTS, WHO,
UNDER SIMILAR LAWS, HAD MADE APPROPRIATIONS.  SOME OF THEM WERE EARLIER
IN DATE THAN THE DITCH COMPANY'S. 

THE CASE WAS FIRST HEARD IN THE DISTRICT COURT ON EVIDENCE IN 1930. 
THE DITCH COMPANY OBJECTED AT THE TRIAL TO THE ADMISSION OR
CONSIDERATION OF THE COMPACT.  IT INSISTED THAT THE COMPACT ATTEMPTED
TO SURRENDER TO NEW MEXICO, AND THUS DESTROY, VESTED PROPERTY RIGHTS OF
COLORADO CITIZENS; THAT THIS IS A VIOLATION OF THE OBLIGATIONS OF ITS
CONTRACT; AND THAT THE COMPACT IN SO FAR AS IT "APPLIES OR IS INTENDED
TO APPLY TO PRIVATE RIGHTS OF THE INDIVIDUALS OR CITIZENS OF COLORADO,
OR TO BE USED AS A DEFENSE OF OR JUSTIFICATION FOR THE ACTS OF THE
STATE ENGINEER OR HIS SUBORDINATES IN INTERFERING WITH OR VIOLATING THE
PRIVATE RIGHTS OF CITIZENS OF COLORADO, OR IN ATTEMPTING TO DISREGARD,
IGNORE OR SET ASIDE THE DECREES OF THIS (DISTRICT) COURT FOR THE
DISTRIBUTION OF WATER IN ACCORDANCE WITH THE DECREES, IS
UNCONSTITUTIONAL AND VOID" IN VIOLATION OF THE DUE PROCESS CLAUSES OF
THE FIFTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION AND OF
SEC. 25 OF THE CONSTITUTION OF COLORADO. 

THE DISTRICT COURT OVERRULED THE OBJECTION; FOUND IN SUBSTANCE THE
FACTS STATED ABOVE; HELD THAT THE COMPACT JUSTIFIED THE ACTION OF
DEFENDANTS; AND ENTERED A DECREE THAT THE BILL BE DISMISSED, EACH PARTY
TO BEAR ITS OWN COSTS.  THAT JUDGMENT WAS REVERSED BY THE SUPREME COURT
OF THE STATE (ONE JUDGE DISSENTING), LA PLATA RIVER & CHERRY CREEK
DITCH CO. V. HINDERLIDER, 93 COLO. 128; 25 P.2D 187.  THE OPINION
DECLARED: 

"THERE IS NOT THE SLIGHTEST PRETENSE, EITHER IN THIS COMPACT ITSELF
OR IN THE PROCEEDINGS LEADING UP TO IT, TO A DECISION OF THE QUESTION
OF WHAT WATER COLORADO OWNS, OR WHAT WATER NEW MEXICO OWNS, OR WHAT
THEIR RESPECTIVE CITIZENS OWN.  IT IS A MERE COMPROMISE OF PRESUMABLY
CONFLICTING CLAIMS, A TRADING THEREIN, IN WHICH THE PROPERTY OF
CITIZENS IS BARTERED, WITHOUT NOTICE OR HEARING AND WITH NO REGARD TO
VESTED RIGHTS." 

AN APPEAL TO THIS COURT WAS DISMISSED FOR WANT OF FINAL JUDGMENT
BELOW.  HINDERLIDER V. LA PLATA RIVER & CHERRY CREEK DITCH CO., 291
U.S. 650.  THE CASE WAS THEN RETRIED BY THE DISTRICT COURT ON THE SAME
PLEADINGS AND EVIDENCE; AND, PURSUANT TO THE OPINION OF THE SUPREME
COURT OF COLORADO, A DECREE WAS ENTERED WHICH, AFTER RECITING IN
SUBSTANCE THE FACTS ABOVE STATED, DECLARED: 

"6.  THAT THE SAID LA PLATA RIVER COMPACT, ENTERED INTO BETWEEN THE
STATES OF COLORADO AND NEW MEXICO WITH THE CONSENT OF THE CONGRESS OF
THE UNITED STATES OF AMERICA, DOES NOT CONSTITUTE A DEFENSE TO THE
ACTIONS OF SAID DEFENDANT WATER OFFICIALS COMPLAINED OF BY PLAINTIFF,
AND IS NOT AVAILABLE TO SAID DEFENDANT WATER OFFICIALS, AS A LEGAL
DEFENSE OR JUSTIFICATION, FOR THEIR ACTS IN CLOSING AND SHUTTING DOWN
THE HEADGATE OF PLAINTIFF AND IN DEPRIVING THE SAID PLAINTIFF, THEREBY,
OF ITS RIGHT TO THE USE OF THE WATERS FROM SAID LA PLATA RIVER FOR
IRRIGATION PURPOSES, AS PROVIDED BY THE TERMS AND PROVISIONS OF SAID
DECREE OF ADJUDICATION OF JANUARY 12, 1898." 

THE DECREE SPECIFICALLY: 

"(3)  ENJOINED AND COMMANDED (THE DEFENDANTS) TO PERMIT THE DIVERSION
THROUGH THE PLAINTIFF'S HEADGATE (OF) WATER FOR PLAINTIFF'S DITCH IN
ACCORDANCE WITH THE TERMS OF SAID DECREE AT ANY AND ALL TIMES WHEN
THERE IS WATER IN SAID STREAM TO WHICH SAID DECREE, UNDER ITS TERMS AND
CONDITIONS WOULD APPLY; ...  " 

THIS SECOND JUDGMENT OF THE TRIAL COURT WAS AFFIRMED BY THE SUPREME
COURT OF THE STATE; AN ADDITIONAL OPINION BEING DELIVERED BY THE COURT,
AND A DISSENT BY A DIFFERENT JUSTICE.  101 COLO. 73; 70 P.2D 849.  AN
APPEAL TO THIS COURT WAS ALLOWED BY THE ACTING CHIEF JUSTICE OF THE
STATE.  FN3  PURSUANT TO THE ACT OF CONGRESS, AUGUST 24, 1937, C. 754,
50 STAT. 751, THE ATTENTION OF THE ATTORNEY GENERAL OF THE UNITED
STATES WAS DIRECTED TO THE CONTENTION THAT THE VALIDITY OF A FEDERAL
STATUTE IS INVOLVED, 302 U.S. 646.  HE FILED MEMORANDA IN WHICH HE
CONTENDED THAT: 

"(1)  THIS COURT IS INCLUDED IN THE COURTS TO WHICH SECTION 1 OF THE
ACT OF AUGUST 24, 1937, IS APPLICABLE; (2) THE CONSTITUTIONALITY OF THE
COMPACT IS DRAWN IN QUESTION WHETHER OR NOT A DECISION ON THIS POINT IS
NECESSARY; (3) A COMPACT IS AN ACT OF CONGRESS; AND (4) IT IS AN ACT
'AFFECTING THE PUBLIC INTEREST.'" 

OPPOSING SOME OF THE VIEWS EXPRESSED BY THE ATTORNEY GENERAL, A BRIEF
WAS FILED ON BEHALF OF DELAWARE, MARYLAND, NEW JERSEY, NEW YORK,
VIRGINIA, THE PORT OF NEW YORK AUTHORITY AND THE DELAWARE RIVER JOINT
COMMISSION. 

THE DITCH COMPANY MOVED TO DISMISS THE APPEAL, CONTENDING, AMONG
OTHER THINGS, THAT THE MERE FACT THAT THE COMPACT WAS APPROVED BY
CONGRESS DOES NOT MAKE IT A FEDERAL STATUTE WITHIN THE MEANING OF THE
JURISDICTIONAL ACT AUTHORIZING APPEALS.  DECISION ON THE MOTION TO
DISMISS WAS POSTPONED TO THE HEARING ON THE MERITS.  FOR REASONS TO BE
STATED, WE ARE OF OPINION THAT THE CASE IS NOT REVIEWABLE ON APPEAL;
THAT IT PRESENTS A FEDERAL QUESTION REVIEWABLE ON CERTIORARI; THAT
BECAUSE OF ITS IMPORTANCE CERTIORARI SHOULD BE GRANTED; AND THAT THE
JUDGMENT MUST BE REVERSED. 

FIRST.  AS THE LA PLATA RIVER FLOWS FROM COLORADO INTO NEW MEXICO AND
IN EACH STATE THE WATER IS USED BENEFICIALLY, IT MUST BE EQUITABLY
APPORTIONED BETWEEN THE TWO.  THE DECISION BELOW IN EFFECT IGNORES THAT
RULE.  IT HOLDS IMMATERIAL THE FACT THAT THE ACTS COMPLAINED OF WERE
BEING DONE IN COMPLIANCE WITH THE COMPACT, AND DOES SO ON THE GROUND
THAT THE COMPACT IN AUTHORIZING DIVERSION AND ROTATION VIOLATED RIGHTS
AWARDED BY THE JANUARY 12, 1898 DECREE IN THE COLORADO WATER
PROCEEDING; HOLDS THAT THE DECREE AWARDED TO THE DITCH COMPANY THE
RIGHT TO DIVERT FROM THE RIVER 39 1/4 CUBIC FEET PER SECOND (SUBJECT
ONLY TO THE SENIOR COLORADO PRIORITIES OF 19 SECOND FEET), EVEN IF BY
SO DOING IT EXHAUSTS THE WHOLE FLOW OF THE STREAM AND LEAVES NOTHING
FOR THE NEW MEXICO CLAIMANTS; AND HOLDS THAT THE RIGHT SO AWARDED IS A
VESTED PROPERTY RIGHT WHICH THE TWO STATES, ALTHOUGH ACTING WITH THE
CONSENT OF THE UNITED STATES, LACKED POWER TO DIMINISH OR MODIFY EXCEPT
BY A CONDEMNATION PROCEEDING AND PAYMENT OF COMPENSATION.  NO SUCH
PROCEEDING WAS PROVIDED FOR IN THE COMPACT AND NONE WAS HAD OTHERWISE. 

IT MAY BE ASSUMED THAT THE RIGHT ADJUDICATED BY THE DECREE OF JANUARY
12, 1898 TO THE DITCH COMPANY IS A PROPERTY RIGHT, INDEFEASIBLE SO FAR
AS CONCERNS THE STATE OF COLORADO, ITS CITIZENS, AND ANY OTHER PERSON
CLAIMING WATER RIGHTS THERE.  BUT THE COLORADO DECREE COULD NOT CONFER
UPON THE DITCH COMPANY RIGHTS IN EXCESS OF COLORADO'S SHARE OF THE
WATER OF THE STREAM; AND ITS SHARE WAS ONLY AN EQUITABLE PORTION
THEREOF. 

THE CLAIM THAT ON INTERSTATE STREAMS THE UPPER STATE HAS SUCH
OWNERSHIP OR CONTROL OF THE WHOLE STREAM AS ENTITLES IT TO DIVERT ALL
THE WATER, REGARDLESS OF ANY INJURY OR PREJUDICE TO THE LOWER STATE,
HAS BEEN MADE BY COLORADO IN LITIGATION CONCERNING OTHER INTERSTATE
STREAMS, BUT HAS BEEN CONSISTENTLY DENIED BY THIS COURT.  THE RULE OF
EQUITABLE APPORTIONMENT WAS SETTLED BY KANSAS V. COLORADO, 206 U.S. 46,
97.  IT WAS DISCUSSED AGAIN IN WYOMING V. COLORADO, 259 U.S. 419, 466,
WHERE THE COURT SAID:    "THE CONTENTION OF COLORADO THAT SHE AS A
STATE RIGHTFULLY MAY DIVERT AND USE, AS SHE MAY CHOOSE, THE WATERS
FLOWING WITHIN HER BOUNDARIES IN THIS INTERSTATE STREAM, REGARDLESS OF
ANY PREJUDICE THAT THIS MAY WORK TO OTHERS HAVING RIGHTS IN THE STREAM
BELOW HER BOUNDARY, CAN NOT BE MAINTAINED.  THE RIVER THROUGHOUT ITS
COURSE IN BOTH STATES IS BUT A SINGLE STREAM WHEREIN EACH STATE HAS AN
INTEREST WHICH SHOULD BE RESPECTED BY THE OTHER.  A LIKE CONTENTION WAS
SET UP BY COLORADO IN HER ANSWER IN KANSAS V. COLORADO AND WAS ADJUDGED
UNTENABLE.  FURTHER CONSIDERATION SATISFIES US THAT THE RULING WAS
RIGHT." 

AND IN NEW JERSEY V. NEW YORK, 283 U.S. 336, 342-43, THE COURT SAID
OF AN INTERSTATE STREAM: 

"IT OFFERS A NECESSITY OF LIFE THAT MUST BE RATIONED AMONG THOSE WHO
HAVE POWER OVER IT.  NEW YORK HAS THE PHYSICAL POWER TO CUT OFF ALL THE
WATER WITHIN ITS JURISDICTION.  BUT CLEARLY THE EXERCISE OF SUCH A
POWER TO THE DESTRUCTION OF THE INTEREST OF LOWER STATES COULD NOT BE
TOLERATED.  AND ON THE OTHER HAND EQUALLY LITTLE COULD NEW JERSEY BE
PERMITTED TO REQUIRE NEW YORK TO GIVE UP ITS POWER ALTOGETHER IN ORDER
THAT THE RIVER MIGHT COME DOWN TO IT UNDIMINISHED.  BOTH STATES HAVE
REAL AND SUBSTANTIAL INTERESTS IN THE RIVER THAT MUST BE RECONCILED AS
BEST THEY MAY BE." 

THE DECREE OBVIOUSLY IS NOT RES JUDICATA SO FAR AS CONCERNS THE STATE
OF NEW MEXICO AND ITS CITIZENS WHO CLAIM THE RIGHT TO DIVERT WATER FROM
THE STREAM IN NEW MEXICO.  AS THEY WERE NOT PARTIES TO THE COLORADO
PROCEEDINGS, THEY REMAIN FREE TO CHALLENGE THE CLAIM OF THE DITCH
COMPANY THAT IT IS ENTITLED TO TAKE IN COLORADO ALL THE WATER OF THE
STREAM AND LEAVE NOTHING FOR THEM.  FN4 

SECOND.  THE DECLARED PURPOSE OF THE COMPACT WAS, AS THE PREAMBLE
RECITES, EQUITABLE APPORTIONMENT: 

"THE STATE OF COLORADO AND THE STATE OF NEW MEXICO, DESIRING TO
PROVIDE FOR THE EQUITABLE DISTRIBUTION OF THE WATERS OF THE LA PLATA
RIVER AND TO REMOVE ALL CAUSES OF PRESENT AND FUTURE CONTROVERSY
BETWEEN THEM WITH RESPECT THERETO, AND BEING MOVED BY CONSIDERATIONS OF
INTERSTATE COMITY, PURSUANT TO ACTS OF THEIR RESPECTIVE LEGISLATURES,
HAVE RESOLVED TO CONCLUDE A COMPACT FOR THESE PURPOSES AND HAVE NAMED
AS THEIR COMMISSIONERS:  DELPH E. CARPENTER, FOR THE STATE OF COLORADO,
AND STEPHEN B. DAVIS, JR., FOR THE STATE OF NEW MEXICO, WHO HAVE AGREED
UPON THE FOLLOWING ARTICLES." 

THE SUPREME COURT OF COLORADO HELD THE COMPACT UNCONSTITUTIONAL
BECAUSE, FOR AUGHT THAT APPEARS, IT EMBODIES NOT A JUDICIAL, OR QUASI
JUDICIAL, DECISION OF CONTROVERTED RIGHTS, BUT A TRADING COMPROMISE OF
CONFLICTING CLAIMS.  THE ASSUMPTION THAT A JUDICIAL OR QUASI-JUDICIAL
DECISION OF THE CONTROVERTED CLAIMS IS ESSENTIAL TO THE VALIDITY OF A
COMPACT ADJUSTING THEM, RESTS UPON MISCONCEPTION.  IT IGNORES THE
HISTORY AND ORDER OF DEVELOPMENT OF THE TWO MEANS PROVIDED BY THE
CONSTITUTION FOR ADJUSTING INTERSTATE CONTROVERSIES.  THE COMPACT - THE
LEGISLATIVE MEANS - ADAPTS TO OUR UNION OF SOVEREIGN STATES THE AGE-OLD
TREATY-MAKING POWER OF INDEPENDENT SOVEREIGN NATIONS.  ADJUSTMENT BY
COMPACT WITHOUT A JUDICIAL OR QUASI-JUDICIAL DETERMINATION OF EXISTING
RIGHTS HAD BEEN PRACTICED IN THE COLONIES,  FN5  WAS PRACTICED BY THE
STATES BEFORE THE ADOPTION OF THE CONSTITUTION,  FN6  AND HAD BEEN
EXTENSIVELY PRACTICED IN THE UNITED STATES FOR NEARLY HALF A CENTURY
BEFORE THIS COURT FIRST APPLIED THE JUDICIAL MEANS IN SETTLING THE
BOUNDARY DISPUTE IN RHODE ISLAND V. MASSACHUSETTS, 12 PET. 657, 723
25.  FN7 

THE EXTENT OF THE EXISTING EQUITABLE RIGHTS OF COLORADO AND OF NEW
MEXICO IN THE LA PLATA RIVER COULD OBVIOUSLY HAVE BEEN DETERMINED BY A
SUIT IN THIS COURT, AS WAS DONE IN KANSAS V. COLORADO, SUPRA, IN
RESPECT TO RIGHTS IN THE ARKANSAS RIVER AND IN WYOMING V. COLORADO,
SUPRA, IN RESPECT TO THE LARAMIE.  FN8  BUT RESORT TO THE JUDICIAL
REMEDY IS NEVER ESSENTIAL TO THE ADJUSTMENT OF INTERSTATE
CONTROVERSIES, UNLESS THE STATES ARE UNABLE TO AGREE UPON THE TERMS OF
A COMPACT, OR CONGRESS REFUSES ITS CONSENT.  THE DIFFICULTIES INCIDENT
TO LITIGATION HAVE LED STATES TO RESORT, WITH FREQUENCY, TO ADJUSTMENT
OF THEIR CONTROVERSIES BY COMPACT, EVEN WHERE THE MATTER IN DISPUTE WAS
THE RELATIVELY SIMPLE ONE OF A BOUNDARY.  IN TWO SUCH CASES THIS COURT
SUGGESTED "THAT THE PARTIES ENDEAVOR WITH THE CONSENT OF CONGRESS TO
ADJUST THEIR BOUNDARIES."  WASHINGTON V. OREGON, 214 U.S. 205, 217,
218; MINNESOTA V. WISCONSIN, 252 U.S. 273, 283.  FN9  IN NEW YORK V.
NEW JERSEY, 256 U.S. 296, 313, WHICH INVOLVED A MORE INTRICATE PROBLEM
OF RIGHTS IN INTERSTATE WATERS, THE RECOMMENDATION THAT TREATY-MAKING
BE RESORTED TO WAS MORE SPECIFIC; FN10  AND COMPACTS FOR THE
APPORTIONMENT OF THE WATER OF INTERSTATE STREAMS HAVE BEEN COMMON. 
FN11 

THIRD.  WHETHER THE APPORTIONMENT OF THE WATER OF AN INTERSTATE
STREAM BE MADE BY COMPACT BETWEEN THE UPPER AND LOWER STATES WITH THE
CONSENT OF CONGRESS OR BY A DECREE OF THIS COURT, THE APPORTIONMENT IS
BINDING UPON THE CITIZENS OF EACH STATE AND ALL WATER CLAIMANTS, EVEN
WHERE THE STATE HAD GRANTED THE WATER RIGHTS BEFORE IT ENTERED INTO THE
COMPACT.  THAT THE PRIVATE RIGHTS OF GRANTEES OF A STATE ARE DETERMINED
BY THE ADJUSTMENT BY COMPACT OF A DISPUTED BOUNDARY WAS SETTLED A
CENTURY AGO IN POOLE V. FLEEGER, 11 PET. 185, 209, WHERE THE COURT
SAID: 

"IT CANNOT BE DOUBTED, THAT IT IS A PART OF THE GENERAL RIGHT OF
SOVEREIGNTY, BELONGING TO INDEPENDENT NATIONS, TO ESTABLISH AND FIX THE
DISPUTED BOUNDARIES BETWEEN THEIR RESPECTIVE TERRITORIES; AND THE
BOUNDARIES SO ESTABLISHED AND FIXED BY COMPACT BETWEEN NATIONS, BECOME
CONCLUSIVE UPON ALL THE SUBJECTS AND CITIZENS THEREOF, AND BIND THEIR
RIGHTS; AND ARE TO BE TREATED, TO ALL INTENTS AND PURPOSES, AS THE TRUE
AND REAL BOUNDARIES.  THIS IS A DOCTRINE UNIVERSALLY RECOGNIZED IN THE
LAW AND PRACTICE OF NATIONS.  IT IS A RIGHT EQUALLY BELONGING TO THE
STATES OF THIS UNION; UNLESS IT HAS BEEN SURRENDERED UNDER THE
CONSTITUTION OF THE UNITED STATES.  SO FAR FROM THERE BEING ANY
PRETENSE OF SUCH A GENERAL SURRENDER OF THE RIGHT, IT IS EXPRESSLY
RECOGNIZED BY THE CONSTITUTION AND GUARDED IN ITS EXERCISE BY A SINGLE
LIMITATION OR RESTRICTION, REQUIRING THE CONSENT OF CONGRESS." 

IN RHODE ISLAND V. MASSACHUSETTS, 12 PET. 657, 725, THE COURT,
DISCUSSING THE ORIGIN AND SCOPE OF THE COMPACT CLAUSE, SAID: 

"IF CONGRESS CONSENTED, THEN THE STATES WERE IN THIS RESPECT RESTORED
TO THEIR ORIGINAL INHERENT SOVEREIGNTY; SUCH CONSENT BEING THE SOLE
LIMITATION IMPOSED BY THE CONSTITUTION, WHEN GIVEN, LEFT THE STATES AS
THEY WERE BEFORE, AS HELD BY THIS COURT IN POOLE V. FLEEGER, 11 PET.
209; WHEREBY THEIR COMPACTS BECAME OF BINDING FORCE, AND FINALLY
SETTLED THE BOUNDARY BETWEEN THEM; OPERATING WITH THE SAME EFFECT AS A
TREATY BETWEEN SOVEREIGN POWERS.  THAT IS, THAT THE BOUNDARIES SO
ESTABLISHED AND FIXED BY COMPACT BETWEEN NATIONS, BECOME CONCLUSIVE
UPON ALL SUBJECTS AND CITIZENS THEREOF, AND BIND THEIR RIGHTS; AND ARE
TO BE TREATED TO ALL INTENTS AND PURPOSES, AS THE TRUE REAL
BOUNDARIES." 

SEE ALSO GARCIA V. LEE, 12 PET. 511, 521; COFFEE V. GROOVER, 123 U.S.
1, 29, 30, 31; VIRGINIA V. TENNESSEE, 148 U.S. 503, 525. 

THE RULE AS APPLIED TO THE APPORTIONMENT BY JUDICIAL DECREE OF THE
WATER OF AN INTERSTATE STREAM WAS STATED IN WYOMING V. COLORADO, 286
U.S. 494, 508: 

"BUT IT IS SAID THAT WATER CLAIMS OTHER THAN THE TUNNEL APPROPRIATION
COULD NOT BE, AND WERE NOT, AFFECTED BY THE DECREE, BECAUSE THE
CLAIMANTS WERE NOT PARTIES TO THE SUIT OR REPRESENTED THEREIN.  IN THIS
THE NATURE OF THE SUIT IS MISCONCEIVED.  IT WAS BETWEEN STATES, EACH
ACTING AS A QUASI-SOVEREIGN AND REPRESENTATIVE OF THE INTERESTS AND
RIGHTS OF HER PEOPLE IN A CONTROVERSY WITH THE OTHER.  COUNSEL FOR
COLORADO INSISTED IN THEIR BRIEF IN THAT SUIT THAT THE CONTROVERSY WAS
'NOT BETWEEN PRIVATE PARTIES' BUT 'BETWEEN THE TWO SOVEREIGNTIES OF
WYOMING AND COLORADO'; AND THIS COURT IN ITS OPINION ASSENTED TO THAT
VIEW, BUT OBSERVED THAT THE CONTROVERSY WAS ONE OF IMMEDIATE AND DEEP
CONCERN TO BOTH STATES AND THAT THE INTERESTS OF EACH WERE INDISSOLUBLY
LINKED WITH THOSE OF HER APPROPRIATORS.  259 U.S. 468.  DECISIONS IN
OTHER CASES ALSO WARRANT THE CONCLUSION THAT THE WATER CLAIMANTS IN
COLORADO, AND THOSE IN WYOMING, WERE REPRESENTED BY THEIR RESPECTIVE
STATES AND ARE BOUND BY THE DECREE." 

FOURTH.  AS THE STATES HAD POWER TO BIND BY COMPACT THEIR RESPECTIVE
APPROPRIATORS BY DIVISION OF THE FLOW OF THE STREAM, THEY HAD POWER TO
REACH THAT END EITHER BY PROVIDING FOR A CONTINUOUS EQUAL DIVISION OF
THE WATER FROM TIME TO TIME IN THE STREAM, OR BY PROVIDING FOR
ALTERNATE PERIODS OF FLOW TO THE ONE STATE AND TO THE OTHER OF ALL THE
WATER IN THE STREAM.  TO SECURE "THE GREATEST BENEFICIAL USE OF" THE
WATER IN THE STREAM, THE COMPACT PROVIDED THAT THE WATER MAY BE
"ROTATED BETWEEN THE TWO STATES, IN SUCH MANNER FOR SUCH PERIODS, AND
TO CONTINUE FOR SUCH TIME AS THE STATE ENGINEERS MAY JOINTLY
DETERMINE."  THAT SUCH ALTERNATE ROTATING FLOW WAS THEN A MORE
EFFICIENT USE OF THE STREAM THAN IF THE FLOW HAD BEEN STEADILY DIVIDED
EQUALLY BETWEEN THE COLORADO AND THE NEW MEXICO APPROPRIATORS WAS
CONCLUSIVELY ESTABLISHED BY THE EVIDENCE.  THAT IS, THE ROTATING SUPPLY
WHICH THE COMPACT AUTHORIZED, AND THE TWO STATE ENGINEERS AGREED UPON,
WAS CLEARLY MORE BENEFICIAL TO THE DITCH COMPANY THAN TO HAVE GIVEN TO
IT AND OTHER COLORADO APPROPRIATORS STEADILY ONE-HALF OF THE WATER IN
THE RIVER.  THE DELEGATION TO THE STATE ENGINEERS OF THE AUTHORITY TO
DETERMINE WHEN THE WATERS SHOULD BE SO ROTATED WAS A MATTER OF DETAIL
CLEARLY WITHIN THE CONSTITUTIONAL POWER.  THERE IS NO CLAIM THAT THE
AUTHORITY CONFERRED WAS ABUSED. 

FIFTH.  AS COLORADO POSSESSED THE RIGHT ONLY TO AN EQUITABLE SHARE OF
THE WATER IN THE STREAM, THE DECREE OF JANUARY 12, 1898, IN THE
COLORADO WATER PROCEEDING DID NOT AWARD TO THE DITCH COMPANY ANY RIGHT
GREATER THAN THE EQUITABLE SHARE.  HENCE THE APPORTIONMENT MADE BY THE
COMPACT CAN NOT HAVE TAKEN FROM THE DITCH COMPANY ANY VESTED RIGHT,
UNLESS THERE WAS IN THE PROCEEDINGS LEADING UP TO THE COMPACT OR IN ITS
APPLICATION, SOME VITIATING INFIRMITY.  NO SUCH INFIRMITY OR ILLEGALITY
HAS BEEN SHOWN.  THERE IS NO ALLEGATION IN THE PLEADINGS, NO EVIDENCE
IN THE RECORD, NO SUGGESTION IN BRIEF OR ARGUMENT, THAT THE
APPORTIONMENT AGREED UPON BY THE COMMISSIONERS WAS ENTERED INTO WITHOUT
DUE ENQUIRY; OR THAT IT WAS NOT AN HONEST EXERCISE OF JUDGMENT; OR EVEN
THAT IT WAS, OR IS, INEQUITABLE.  THE FACT THAT THE APPOINTMENT OF THE
JOINT COMMISSIONERS WAS AUTHORIZED IN 1921, THAT THEIR AGREEMENT WAS
NOT ADOPTED BY THE STATES UNTIL 1923, AND THAT IT WAS NOT APPROVED BY
CONGRESS UNTIL 1925 SHOWS THAT THERE WAS AMPLE TIME FOR CONSIDERATION
BY ALL CONCERNED.  THERE IS NO SUGGESTION THAT THE DITCH COMPANY, OR
INDEED ANYONE ELSE, WAS DENIED BY THE COMMISSIONERS OPPORTUNITY TO BE
HEARD; OR EVEN THAT ANY WATER CLAIMANT OBJECTED TO THE TERMS OF THE
COMPACT.  IT APPEARS THAT ALTHOUGH THE STATE OF COLORADO WAS NOT
PERMITTED TO INTERVENE IN THIS LITIGATION, COLORADO V. LA PLATA RIVER &
C.C. DITCH CO., 101 COLO. 368; 73 P.2D 997, ITS ATTORNEY GENERAL
REPRESENTED THE STATE'S WATER OFFICIALS.  MOREOVER, THE COMPACT
PROVIDES IN ARTICLE VI THAT IT "MAY BE MODIFIED OR TERMINATED AT ANY
TIME BY MUTUAL CONSENT"; AND THERE IS NOT EVEN A SUGGESTION THAT EITHER
STATE, OR THE DITCH COMPANY, HAS EXPRESSED A DESIRE TO MODIFY OR
TERMINATE IT. 

SIXTH.  THE WATER OFFICIALS RELY FOR THEIR DEFENSE UPON THE RULE
REQUIRING EQUITABLE APPORTIONMENT OF THE WATER OF AN INTERSTATE STREAM
AND THE ACTION OF CONGRESS IN APPROVING THE ADJUSTMENT OF THE EQUITABLE
APPORTIONMENT WHICH THE STATES MADE BY THEIR COMPACTS.  THE ASSENT OF
CONGRESS TO THE COMPACT BETWEEN COLORADO AND NEW MEXICO DOES NOT MAKE
IT A "TREATY OR STATUTE OF THE UNITED STATES" WITHIN THE MEANING OF
SEC. 237(A) OF THE JUDICIAL CODE, AND NO QUESTION AS TO THE VALIDITY OF
THE CONSENT IS PRESENTED.  PEOPLE V. CENTRAL RAILROAD, 12 WALL.  455. 
A CLAIM BASED ON THE EQUITABLE INTERSTATE APPORTIONMENT OF WATER, LIKE
ONE BASED ON THE PROPER LOCATION OF A STATE BOUNDARY, IS NOT WITHIN THE
PROVISIONS OF SEC. 237(A).  RUST LAND & LUMBER CO. V. JACKSON, 250 U.S.
71.  THE APPEAL MUST THEREFORE BE DISMISSED.  BUT IN HOLDING THAT THE
STATE ENGINEER AND HIS SUBORDINATES SHOULD BE ENJOINED FROM TAKING
ACTION REQUIRED BY THE COMPACT THE STATE COURT DENIED AN IMPORTANT
CLAIM UNDER THE CONSTITUTION WHICH MAY BE REVIEWED ON CERTIORARI BY
THIS COURT UNDER SEC. 237(B).  FOR THE DECISION BELOW NECESSARILY RESTS
UPON THE PREMISE THAT AT THE TIME THE COMPACT WAS MADE COLORADO WAS
ABSOLUTELY ENTITLED TO AT LEAST 58 1/4 CUBIC FEET OF WATER PER SECOND
REGARDLESS OF THE AMOUNT LEFT FOR NEW MEXICO.  THE JUDGMENT CANNOT
STAND IF THIS DETERMINATION IS ERRONEOUS.  FOR WHETHER THE WATER OF AN
INTERSTATE STREAM MUST BE APPORTIONED BETWEEN THE TWO STATES IS A
QUESTION OF "FEDERAL COMMON LAW" UPON WHICH NEITHER THE STATUTES NOR
THE DECISIONS OF EITHER STATE CAN BE CONCLUSIVE.  KANSAS V. COLORADO,
206 U.S. 46, 95, 97-98; CONNECTICUT V. MASSACHUSETTS, 282 U.S. 660, 669
71; NEW JERSEY V. NEW YORK, 283 U.S. 336, 342-43; WASHINGTON V. OREGON,
297 U.S. 517, 528.  JURISDICTION OVER CONTROVERSIES CONCERNING RIGHTS
IN INTERSTATE STREAMS IS NOT DIFFERENT FROM THOSE CONCERNING
BOUNDARIES.  THESE HAVE BEEN RECOGNIZED AS PRESENTING FEDERAL
QUESTIONS.  FN12 

IT HAS BEEN SUGGESTED THAT THIS COURT LACKS JURISDICTION TO DETERMINE
THE VALIDITY AND EFFECT OF THE COMPACT BECAUSE COLORADO AND NEW MEXICO,
THE PARTIES TO IT, ARE NOT PARTIES TO THIS SUIT AND CANNOT BE MADE SO.
THE CONTENTION IS UNSOUND.  THE CASES ARE MANY WHERE TITLE TO LAND
DEPENDENT UPON THE BOUNDARY BETWEEN STATES HAS BEEN PASSED UPON BY THIS
COURT UPON REVIEW OF JUDGMENTS OF FEDERAL AND OF STATE COURTS IN SUITS
BETWEEN PRIVATE LITIGANTS.  FN13  REVERSED.    FN1  THE COMPACT HAD ITS
INCEPTION IN 1921 WHEN THE LEGISLATURE OF EACH STATE AUTHORIZED THE
APPOINTMENT OF A COMMISSIONER WHO SHALL REPRESENT THE STATE "UPON A
JOINT COMMISSION  ...  TO BE CONSTITUTED BY SAID STATES FOR THE PURPOSE
OF NEGOTIATING AND ENTERING INTO A COMPACT OR AGREEMENT BETWEEN SAID
STATES, WITH THE CONSENT OF CONGRESS, RESPECTING THE FUTURE UTILIZATION
AND DISPOSITION OF THE WATERS OF THE LA PLATA RIVER, AND ALL STREAMS
TRIBUTARY THERETO, AND FIXING AND DETERMINING THE RIGHTS OF EACH OF
SAID STATES TO THE USE, BENEFIT AND DISPOSITION OF THE WATERS OF SAID
STREAM, PROVIDED, HOWEVER, THAT ANY COMPACT OR AGREEMENT SO ENTERED
INTO ON BEHALF OF SAID STATES SHALL NOT BE BINDING OR OBLIGATORY UPON
EITHER OF SAID STATES OR THE CITIZENS THEREOF, UNLESS AND UNTIL THE
SAME SHALL HAVE BEEN RATIFIED AND APPROVED BY THE LEGISLATURES OF BOTH
STATES, AND BY THE CONGRESS OF THE UNITED STATES."  COLO. SESSION LAWS,
1921, P. 803; SESSION LAWS OF NEW MEXICO, 1921, P. 322. 

THE COMPACT DRAFTED BY THE COMMISSIONERS WAS RATIFIED BY THE GENERAL
ASSEMBLY OF NEW MEXICO ON FEBRUARY 7, 1923(SESSION LAWS OF NEW MEXICO,
1923, P. 13) AND BY THE GENERAL ASSEMBLY OF COLORADO ON APRIL 13,
1923(COLORADO SESSION LAWS, 1923, P. 696.) 

THE CONSENT OF CONGRESS WAS GRANTED BY ACT OF JANUARY 29, 1925, 43
STAT. 796. 

FN2  COLORADO CONSTITUTION, ART. XVI, SEC. 5, PROVIDES:  "THE WATER
OF EVERY NATURAL STREAM, NOT HERETOFORE APPROPRIATED, WITHIN THE STATE
OF COLORADO, IS HEREBY DECLARED TO BE THE PROPERTY OF THE PUBLIC, AND
THE SAME IS DEDICATED TO THE USE OF THE PEOPLE OF THE STATE, SUBJECT TO
APPROPRIATION AS HEREINAFTER PROVIDED."  ARTICLE XVI, SEC. 6, PROVIDES
IN PART:  "THE RIGHT TO DIVERT UNAPPROPRIATED WATERS OF ANY NATURAL
STREAM TO BENEFICIAL USES SHALL NEVER BE DENIED.  PRIORITY OF
APPROPRIATION SHALL GIVE THE BETTER RIGHT AS BETWEEN THOSE USING THE
WATER FOR THE SAME PURPOSE."  FOR THE LAW OF NEW MEXICO, SEE ITS
CONSTITUTION, ART. XVI, SECS. 2 AND 3. 

FN3  THE FIRST JUDGMENT IN THE TRIAL COURT WAS ENTERED JUNE 16, 1930;
THE FIRST JUDGMENT OF THE SUPREME COURT OF COLORADO ON JULY 3, 1933;
THE DISMISSAL BY THIS COURT OF THE FIRST APPEAL ON MARCH 12, 1934; THE
SECOND JUDGMENT IN THE TRIAL COURT ON MAY 12, 1936; THE SECOND JUDGMENT
OF THE SUPREME COURT OF COLORADO ON JULY 6, 1937. 

FN4  WASHINGTON V. OREGON, 297 U.S. 517, 528.  COMPARE FOWLER V.
LINDSEY, 3 DALL.  411, 412; ARKANSAS V. TENNESSEE, 246 U.S. 158, 176. 

FN5  NINE COLONIAL BOUNDARY AGREEMENTS ARE LISTED BY FRANKFURTER AND
LANDIS, THE COMPACT CLAUSE OF THE CONSTITUTION - A STUDY IN INTERSTATE
ADJUSTMENTS (1925) 34 YALE L.J. 685, 730-32. 

FN6  FIVE AGREEMENTS MADE UNDER THE ARTICLES OF CONFEDERATION HAVE
BEEN FOUND.  SEE FRANKFURTER AND LANDIS, SUPRA NOTE 5, AT 732-34. 

FN7  NINE COMPACTS WERE APPARENTLY EXECUTED IN THIS PERIOD (ALTHOUGH
FIVE OF THESE WERE WITHOUT EXPRESS CONGRESSIONAL CONSENT).  SEE
FRANKFURTER AND LANDIS, SUPRA NOTE 5, AT 735-37, 749-52.  SEE ALSO ELY,
OIL CONSERVATION THROUGH INTERSTATE AGREEMENT (1933) 371-72, 389-91;
(JUNE 1936) 9 STATE GOVERNMENT 118; DODD, INTERSTATE COMPACTS (1936) 70
U.S.L. REV. 557, 574.  THE AGREEMENT BETWEEN NEW JERSEY AND NEW YORK IN
1833 PUT AN END TO THE BOUNDARY SUIT BEGUN IN 1829.  NEW JERSEY V. NEW
YORK, 3 PET. 461, 5 PET. 284, 6 PET. 323. 

FN8  SEE ALSO CONNECTICUT V. MASSACHUSETTS, 282 U.S. 660, 283 U.S.
789(CONNECTICUT RIVER); NEW JERSEY V. NEW YORK, 283 U.S. 336,
805(DELAWARE RIVER); WYOMING V. COLORADO, 286 U.S. 494, 298 U.S.
573(LARAMIE RIVER); WASHINGTON V. OREGON, 297 U.S. 517(WALLA WALLA
RIVER).  THREE OTHER WATER APPORTIONMENT SUITS ARE PENDING IN THIS
COURT.  COLORADO V. KANSAS, ORIGINAL NO. 6(ARKANSAS RIVER); NEBRASKA V.
WYOMING, 295 U.S. 40, ORIGINAL NO. 9(NORTH PLATTE RIVER); TEXAS V. NEW
MEXICO, ORIGINAL NO. 11(RIO GRANDE). 

FN9  THE LONG DRAWN OUT IRRITATING BOUNDARY LITIGATION, RHODE ISLAND
V. MASSACHUSETTS, 7 PET. 651; 11 PET. 226; 12 PET. 657, 755; 13 PET.
23; 14 PET. 210; 15 PET. 233; 4 HOW.  591; WAS FINALLY SETTLED BY A
COMPACT.  SEE FRANKFURTER AND LANDIS, SUPRA NOTE 5, AT 696, 737-38. 

FN10  "WE CANNOT WITHHOLD THE SUGGESTION, INSPIRED BY THE
CONSIDERATION OF THIS CASE, THAT THE GRAVE PROBLEM OF SEWAGE DISPOSAL
PRESENTED BY THE LARGE AND GROWING POPULATIONS LIVING ON THE SHORES OF
NEW YORK BAY IS ONE MORE LIKELY TO BE WISELY SOLVED BY COOPERATIVE
STUDY AND BY CONFERENCE AND MUTUAL CONCESSION ON THE PART OF
REPRESENTATIVES OF THE STATES SO VITALLY INTERESTED IN IT THAN BY
PROCEEDINGS IN ANY COURT HOWEVER CONSTITUTED."  (P. 313.) 

FN11  CONGRESS HAS CONSENTED TO 15 SUCH COMPACTS, OF WHICH 5 HAVE
BEEN RATIFIED BY TWO OR MORE OF THE CONTRACTING STATES.  SEE STATE
GOVERNMENT, SUPRA NOTE 7, AT 120-21.  SEE ALSO ELY, SUPRA NOTE 7, AT
381-88; DODD, SUPRA NOTE 7, AT 574-78. 

FN12  CISSNA V. TENNESSEE, 246 U.S. 289, 295; COMPARE RUST LAND &
LUMBER CO. V. JACKSON, 250 U.S. 71, 76.  IN HOWARD V. INGERSOLL, 13
HOW.  381, THIS COURT REVERSED THE SUPREME COURT OF ALABAMA'S DECISION
LOCATING THE ALABAMA-GEORGIA BOUNDARY, WHICH DEPENDED UPON THE
CONSTRUCTION OF A CESSION OF TERRITORY BY GEORGIA TO THE UNITED STATES
IN 1802.  COMPARE COFFEE V. GROOVER, 123 U.S. 1.  THE DECISIONS ARE NOT
UNIFORM AS TO WHETHER THE INTERPRETATION OF AN INTERSTATE COMPACT
PRESENTS A FEDERAL QUESTION.  COMPARE PEOPLE V. CENTRAL RAILROAD, 12
WALL.  455, WITH WEDDING V. MEYLER, 192 U.S. 573, AND WHARTON V. WISE,
153 U.S. 155. 

FN13  COMPARE HANDLY'S LESSEE V. ANTHONY, 5 WHEAT.  374; HOWARD V.
INGERSOLL, 13 HOW.  381; POOLE V. FLEEGER, 11 PET. 185; COFFEE V.
GROOVER, 123 U.S. 1; ST. LOUIS V. RUTZ, 138 U.S. 226; MOORE V. MCGUIRE,
205 U.S. 214; CISSNA V. TENNESSEE, 246 U.S. 289; MARINE RY. & COAL CO.
V. UNITED STATES, 257 U.S. 47; SMOOT SAND & GRAVEL CORP. V. WASHINGTON
AIRPORT, 283 U.S. 348. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















U.S. V. SHOSHONE TRIBE, 304 U.S. 111 


NO. 668.  ARGUED MARCH 31, APRIL 1, 1938.  - DECIDED APRIL 25, 1938.  -
85 CT. CLS. 331, AFFIRMED. 


1.  THE OPINION OF THE COURT OF CLAIMS MAY NOT BE REFERRED TO FOR THE
PURPOSE OF ALTERING OR MODIFYING THE SCOPE OF UNAMBIGUOUS FINDINGS.  P.
115. 

2.  THE RIGHT OF THE SHOSHONE TRIBE IN THE LANDS SET APART FOR IT,
UNDER THE TREATY OF JULY 3, 1868, WITH THE UNITED STATES, INCLUDED THE
MINERAL AND TIMBER RESOURCES OF THE RESERVATION; AND THE VALUE OF THESE
WAS PROPERLY INCLUDED IN FIXING THE AMOUNT OF COMPENSATION DUE FOR SO
MUCH OF THE LANDS AS WAS TAKEN BY THE UNITED STATES.  P. 118. 

3.  THE PHRASE "ABSOLUTE AND UNDISTURBED USE AND OCCUPATION" IN THE
TREATY IS TO BE READ, WITH OTHER PARTS OF THE TREATY, IN THE LIGHT OF
THE PURPOSE OF THE ARRANGEMENT MADE, THE RELATION BETWEEN THE PARTIES,
AND THE SETTLED POLICY OF THE GOVERNMENT TO DEAL FAIRLY WITH THE INDIAN
TRIBES.  P. 116. 

4.  TREATIES MADE BY THE UNITED STATES WITH INDIAN TRIBES ARE NOT TO
BE CONSTRUED NARROWLY, BUT RATHER IN THE SENSE IN WHICH NATURALLY THE
INDIANS WOULD UNDERSTAND THEM.  P. 116. 

UNITED STATES V. SHOSHONE TRIBE OF INDIANS. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 303 U.S. 629, TO REVIEW A JUDGMENT AGAINST THE UNITED
STATES IN A SUIT BROUGHT BY THE INDIAN TRIBE UNDER THE SPECIAL
JURISDICTIONAL ACT OF MARCH 3, 1927.  FOR AN EARLIER PHASE OF THE CASE,
SEE 299 U.S. 476. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THE SHOSHONE TRIBE BROUGHT THIS SUIT TO RECOVER THE VALUE OF PART OF
ITS RESERVATION TAKEN BY THE UNITED STATES BY PUTTING UPON IT, WITHOUT
THE TRIBE'S CONSENT, A BAND OF ARAPAHOE INDIANS.  THE COURT OF CLAIMS
FOUND THE TAKING TO HAVE BEEN IN AUGUST, 1891, ASCERTAINED VALUE AS OF
THAT DATE, ON THAT BASIS FIXED THE AMOUNT OF COMPENSATION, AND GAVE
JUDGMENT ACCORDINGLY.  WE HELD, 299 U.S. 476, THAT THE COURT ERRED AS
TO THE DATE OF THE TAKING, DECLARED IT TO HAVE BEEN MARCH 19, 1878,
REVERSED THE JUDGMENT AND REMANDED THE CASE FOR FURTHER PROCEEDINGS. 
THEN THE LOWER COURT PROCEEDED TO DETERMINE THE VALUE OF THE TRIBE'S
RIGHT AT THE TIME OF THE TAKING, AND THE AMOUNT TO BE ADDED TO PRODUCE
THE PRESENT WORTH OF THE MONEY EQUIVALENT OF THE PROPERTY, PAID
CONTEMPORANEOUSLY WITH THE TAKING.  IT HEARD EVIDENCE, MADE ADDITIONAL
FINDINGS, AND GAVE PLAINTIFF JUDGMENT FOR $4,408,444.23, WITH INTEREST
FROM ITS DATE UNTIL PAID.  THIS COURT GRANTED WRIT OF CERTIORARI. 

THE SOLE QUESTION FOR DECISION IS WHETHER, AS THE UNITED STATES
CONTENDS, THE COURT OF CLAIMS ERRED IN HOLDING THAT THE RIGHT OF THE
TRIBE INCLUDED THE TIMBER AND MINERAL RESOURCES WITHIN THE
RESERVATION. 

THE FINDINGS SHOW:  THE UNITED STATES, BY THE TREATY OF JULY 2, 1863,
SET APART FOR THE SHOSHONE TRIBE A RESERVATION OF 44,672,000 ACRES
LOCATED IN COLORADO, UTAH, IDAHO AND WYOMING.  BY THE TREATY OF JULY 3,
1868, THE TRIBE CEDED THAT RESERVATION TO THE UNITED STATES.  AND BY IT
THE UNITED STATES AGREED THAT THE "DISTRICT OF COUNTRY" 3,054,182 ACRES
DEFINITELY DESCRIBED "SHALL BE AND THE SAME IS SET APART FOR THE
ABSOLUTE AND UNDISTURBED USE AND OCCUPATION OF THE SHOSHONE INDIANS
...  , AND THE UNITED STATES NOW SOLEMNLY AGREES THAT NO PERSONS," WITH
EXCEPTIONS NOT IMPORTANT HERE, "SHALL EVER BE PERMITTED TO PASS OVER,
SETTLE UPON, OR RESIDE IN" THAT TERRITORY.  THE INDIANS AGREED THAT
THEY WOULD MAKE THE RESERVATION THEIR PERMANENT HOME.  THE TREATY
PROVIDED THAT ANY INDIVIDUAL MEMBER OF THE TRIBE HAVING SPECIFIED
QUALIFICATIONS, MIGHT SELECT A TRACT WITHIN THE RESERVATION WHICH
SHOULD THEN CEASE TO BE HELD IN COMMON, AND BE OCCUPIED AND HELD IN THE
EXCLUSIVE POSSESSION OF THE PERSON SELECTING IT, AND OF HIS FAMILY,
WHILE HE OR THEY CONTINUED TO CULTIVATE IT.  IT DECLARED:  "  ...
CONGRESS SHALL PROVIDE FOR PROTECTING THE RIGHTS OF THE INDIAN SETTLERS
...  AND MAY FIX THE CHARACTER OF THE TITLE HELD BY EACH.  THE UNITED
STATES MAY PASS SUCH LAWS ON THE SUBJECT OF ALIENATION AND DESCENT OF
PROPERTY AS BETWEEN INDIANS, AND ON ALL SUBJECTS CONNECTED WITH THE
GOVERNMENT OF THE INDIANS ON SAID RESERVATION, AND THE INTERNAL POLICE
THEREOF, AS MAY BE THOUGHT PROPER." 

THE TREATY EMPHASIZED THE IMPORTANCE OF EDUCATION; THE UNITED STATES
AGREED TO PROVIDE A SCHOOLHOUSE AND TEACHER FOR EVERY THIRTY CHILDREN,
AND THE TRIBE PROMISED TO SEND THE CHILDREN TO SCHOOL.  THE UNITED
STATES ALSO AGREED TO PROVIDE INSTRUCTION BY A FARMER FOR MEMBERS
CULTIVATING THE SOIL, CLOTHING FOR MEMBERS OF THE TRIBE, AND A
PHYSICIAN, CARPENTER, MILLER, ENGINEER AND BLACKSMITH.  IT STIPULATED
THAT NO TREATY FOR THE CESSION OF ANY PORTION OF THE RESERVATION HELD
IN COMMON SHOULD BE VALID AS AGAINST THE INDIANS, UNLESS SIGNED BY AT
LEAST A MAJORITY OF ALL INTERESTED MALE ADULTS; AND THAT NO CESSION BY
THE TRIBE SHOULD BE CONSTRUED TO DEPRIVE ANY MEMBER OF HIS RIGHT TO ANY
TRACT OF LAND SELECTED BY HIM. 

WHEN THE TREATY OF 1868 WAS MADE, THE TRIBE CONSISTED OF FULL BLOOD
BLANKET INDIANS, UNABLE TO READ, WRITE, OR SPEAK ENGLISH.  UPON
CONSUMMATION OF THE TREATY, THE TRIBE WENT, AND HAS SINCE REMAINED,
UPON THE RESERVATION.  IT WAS KNOWN TO CONTAIN VALUABLE MINERAL
DEPOSITS - GOLD, OIL, COAL AND GYPSUM.  IT INCLUDED MORE THAN 400,000
ACRES OF TIMBER, EXTENSIVE WELL-GRASSED BENCH LANDS AND FERTILE RIVER
VALLEYS CONVENIENTLY IRRIGABLE.  IT WAS WELL PROTECTED BY MOUNTAIN
RANGES AND A DIVIDE, AND WAS THE CHOICEST AND BEST-WATERED PORTION OF
WYOMING. 

IN 1904 THE SHOSHONES AND ARAPAHOES CEDED TO THE UNITED STATES
1,480,000 ACRES TO BE HELD BY IT IN TRUST FOR THE SALE OF SUCH TIMBER
LANDS, TIMBER AND OTHER PRODUCTS, AND FOR THE MAKING OF LEASES FOR
VARIOUS PURPOSES.  THE NET PROCEEDS WERE TO BE CREDITED TO THE
INDIANS.  FROM 1907 TO 1919 THERE WERE ALLOTTED TO MEMBERS OF THE
TRIBES 245,058 ACRES. 

THE COURT'S FINDING OF THE ULTIMATE FACT IS:  "THE FAIR AND
REASONABLE VALUE OF A ONE-HALF UNDIVIDED INTEREST OF THE SHOSHONE OR
WIND RIVER RESERVATION OF A TOTAL OF 2,343,540 ACRES, WHICH WAS TAKEN
BY THE UNITED STATES ON MARCH 19, 1878, FROM THE SHOSHONE TRIBE OF
INDIANS FOR THE NORTHERN ARAPAHOE TRIBE, WAS, ON MARCH 19, 1878,
$1,581,889.50."  THAT IS $1.35 PER ACRE FOR 1,171,770 ACRES, ONE-HALF
OF THE RESERVATION IN 1878, AT THE TIME OF TAKING.  THE UNITED STATES
DOES NOT CHALLENGE THE PRINCIPLE OR BASIS UPON WHICH THE COURT
DETERMINED THE AMOUNT TO BE ADDED TO CONSTITUTE JUST COMPENSATION. 

THE SUBSTANCE OF THE GOVERNMENT'S POINT IS THAT IN FIXING THE VALUE
OF THE TRIBE'S RIGHT, THE LOWER COURT INCLUDED AS BELONGING TO THE
TRIBE SUBSTANTIAL ELEMENTS OF VALUE, ASCRIBABLE TO MINERAL AND TIMBER
RESOURCES, WHICH IN FACT BELONGED TO THE UNITED STATES. 

IT CONTENDS THAT THE SHOSHONES' RIGHT TO USE AND OCCUPY THE LANDS OF
THE RESERVATION DID NOT INCLUDE THE OWNERSHIP OF THE TIMBER AND
MINERALS AND THAT THE OPINION OF THE COURT BELOW DEPARTS FROM THE
GENERAL PRINCIPLES OF LAW REGARDING INDIAN LAND TENURE AND THE UNIFORM
POLICY OF THE GOVERNMENT IN DEALING WITH INDIAN TRIBES.  IT ASKS FOR
REVERSAL WITH "DIRECTIONS TO DETERMINE THE VALUE OF THE INDIANS' RIGHT
OF USE AND OCCUPANCY BUT TO EXCLUDE THEREFROM 'THE NET VALUE OF THE
LANDS' AND 'THE NET VALUE OF ANY TIMBER OR MINERALS.'" 

THE FINDINGS ARE UNAMBIGUOUS; THERE IS NO ROOM FOR CONSTRUCTION.  THE
OPINION OF THE COURT OF CLAIMS MAY NOT BE REFERRED TO FOR THE PURPOSE
OF EKING OUT, CONTROLLING, OR MODIFYING THE SCOPE OF THE FINDINGS. 
STONE V. UNITED STATES, 164 U.S. 380, 383.  LUCKENBACH S.S. CO. V.
UNITED STATES, 272 U.S. 533, 539-540.  CF. AMERICAN PROPELLER CO. V.
UNITED STATES, 300 U.S. 475, 479-480. 

IN THIS CASE WE HAVE HELD, 299 U.S. 476, 484, THAT THE TRIBE HAD THE
RIGHT OF OCCUPANCY WITH ALL ITS BENEFICIAL INCIDENTS; THAT, THE RIGHT
OF OCCUPANCY BEING THE PRIMARY ONE AND AS SACRED AS THE FEE, DIVISION
BY THE UNITED STATES OF THE SHOSHONES' RIGHT WITH THE ARAPAHOES WAS AN
APPROPRIATION OF THE LAND PRO TANTO; THAT ALTHOUGH THE UNITED STATES
ALWAYS HAD LEGAL TITLE TO THE LAND AND POWER TO CONTROL AND MANAGE THE
AFFAIRS OF THE INDIANS, IT DID NOT HAVE POWER TO GIVE TO OTHERS OR TO
APPROPRIATE TO ITS OWN USE ANY PART OF THE LAND WITHOUT RENDERING, OR
ASSUMING THE OBLIGATION TO PAY, JUST COMPENSATION TO THE TRIBE, FOR
THAT WOULD BE, NOT THE EXERCISE OF GUARDIANSHIP OR MANAGEMENT, BUT
CONFISCATION. 

IT WAS NOT THEN NECESSARY TO CONSIDER, BUT WE ARE NOW CALLED UPON TO
DECIDE, WHETHER, BY THE TREATY, THE TRIBE ACQUIRED BENEFICIAL OWNERSHIP
OF THE MINERALS AND TIMBER ON THE RESERVATION.  THE PHRASE "ABSOLUTE
AND UNDISTURBED USE AND OCCUPATION" IS TO BE READ, WITH OTHER PARTS OF
THE DOCUMENT, HAVING REGARD TO THE PURPOSE OF THE ARRANGEMENT MADE, THE
RELATION BETWEEN THE PARTIES, AND THE SETTLED POLICY OF THE UNITED
STATES FAIRLY TO DEAL WITH INDIAN TRIBES.  IN TREATIES MADE WITH THEM
THE UNITED STATES SEEKS NO ADVANTAGE FOR ITSELF; FRIENDLY AND DEPENDENT
INDIANS ARE LIKELY TO ACCEPT WITHOUT DISCRIMINATING SCRUTINY THE TERMS
PROPOSED.  THEY ARE NOT TO BE INTERPRETED NARROWLY, AS SOMETIMES MAY BE
WRITINGS EXPRESSED IN WORDS OF ART EMPLOYED BY CONVEYANCERS, BUT ARE TO
BE CONSTRUED IN THE SENSE IN WHICH NATURALLY THE INDIANS WOULD
UNDERSTAND THEM.  WORCESTER V. GEORGIA, 6 PET. 515, 582.  JONES V.
MEEHAN, 175 U.S. 1, 11.  STARR V. LONG JIM, 227 U.S. 613, 622-623. 

THE PRINCIPAL PURPOSE OF THE TREATY WAS THAT THE SHOSHONES SHOULD
HAVE, AND PERMANENTLY DWELL IN, THE DEFINED DISTRICT OF COUNTRY.  TO
THAT END THE UNITED STATES GRANTED AND ASSURED TO THE TRIBE PEACEABLE
AND UNQUALIFIED POSSESSION OF THE LAND IN PERPETUITY.  MINERALS AND
STANDING TIMBER ARE CONSTITUENT ELEMENTS OF THE LAND ITSELF.  UNITED
STATES V. COOK, 19 WALL.  591.  BRITISH-AMERICAN OIL CO. V. BOARD, 299
U.S. 159, 164-165.  FOR ALL PRACTICAL PURPOSES, THE TRIBE OWNED THE
LAND.  GRANTS OF LAND SUBJECT TO THE INDIAN TITLE BY THE UNITED STATES,
WHICH HAD ONLY THE NAKED FEE, WOULD TRANSFER NO BENEFICIAL INTEREST. 
LEAVENWORTH, L. & G.R. CO. V. UNITED STATES, 92 U.S. 733, 742-743. 
BEECHER V. WETHERBY, 95 U.S. 517, 525.  THE RIGHT OF PERPETUAL AND
EXCLUSIVE OCCUPANCY OF THE LAND IS NOT LESS VALUABLE THAN FULL TITLE IN
FEE.  SEE HOLDEN V. JOY, 17 WALL.  211, 244.  WESTERN UNION TEL. CO. V.
PENNSYLVANIA R. CO., 195 U.S. 540, 557. 

THE TREATY, THOUGH MADE WITH KNOWLEDGE THAT THERE WERE MINERAL
DEPOSITS AND STANDING TIMBER IN THE RESERVATION, CONTAINS NOTHING TO
SUGGEST THAT THE UNITED STATES INTENDED TO RETAIN FOR ITSELF ANY
BENEFICIAL INTEREST IN THEM.  THE WORDS OF THE GRANT, COUPLED WITH THE
GOVERNMENT'S AGREEMENT TO EXCLUDE STRANGERS, NEGATIVE THE IDEA THAT THE
UNITED STATES RETAINED BENEFICIAL OWNERSHIP.  THE GRANT OF RIGHT TO
MEMBERS OF THE TRIBE SEVERALLY TO SELECT AND HOLD TRACTS ON WHICH TO
ESTABLISH HOMES FOR THEMSELVES AND FAMILIES, AND THE RESTRAINT UPON
CESSION OF LAND HELD IN COMMON OR INDIVIDUALLY, SUGGEST BENEFICIAL
OWNERSHIP IN THE TRIBE.  AS TRANSACTIONS BETWEEN A GUARDIAN AND HIS
WARDS ARE TO BE CONSTRUED FAVORABLY TO THE LATTER, DOUBTS, IF THERE
WERE ANY, AS TO OWNERSHIP OF LANDS, MINERALS OR TIMBER WOULD BE
RESOLVED IN FAVOR OF THE TRIBE.  THE CESSION IN 1904 BY THE TRIBE TO
THE UNITED STATES IN TRUST REFLECTS A CONSTRUCTION BY THE PARTIES THAT
SUPPORTS THE TRIBE'S CLAIM, FOR IF IT DID NOT OWN, CREATION OF A TRUST
TO SELL OR LEASE FOR ITS BENEFIT WOULD HAVE BEEN UNNECESSARY AND
INCONSISTENT WITH THE RIGHTS OF THE PARTIES. 

ALTHOUGH THE UNITED STATES RETAINED THE FEE, AND THE TRIBE'S RIGHT OF
OCCUPANCY WAS INCAPABLE OF ALIENATION OR OF BEING HELD OTHERWISE THAN
IN COMMON, THAT RIGHT IS AS SACRED AND AS SECURELY SAFEGUARDED AS IS
FEE SIMPLE ABSOLUTE TITLE.  CHEROKEE NATION V. GEORGIA, 5 PET. 1, 48. 
WORCESTER V. GEORGIA, SUPRA, 580.  SUBJECT TO THE CONDITIONS IMPOSED BY
THE TREATY, THE SHOSHONE TRIBE HAD THE RIGHT THAT HAS ALWAYS BEEN
UNDERSTOOD TO BELONG TO INDIANS, UNDISTURBED POSSESSORS OF THE SOIL
FROM TIME IMMEMORIAL.  PROVISIONS IN AID OF TEACHING CHILDREN AND OF
ADULT EDUCATION IN FARMING, AND TO SECURE FOR THE TRIBE MEDICAL AND
MECHANICAL SERVICE, TO SAFEGUARD TRIBAL AND INDIVIDUAL TITLES, WHEN
TAKEN WITH OTHER PARTS OF THE TREATY, PLAINLY EVIDENCE PURPOSE ON THE
PART OF THE UNITED STATES TO HELP TO CREATE AN INDEPENDENT PERMANENT
FARMING COMMUNITY UPON THE RESERVATION.  OWNERSHIP OF THE LAND WOULD
FURTHER THAT PURPOSE.  IN THE ABSENCE OF DEFINITE EXPRESSION OF
INTENTION SO TO DO, THE UNITED STATES WILL NOT BE HELD TO HAVE KEPT IT
FROM THEM.  THE AUTHORITY OF THE UNITED STATES TO PRESCRIBE TITLE BY
WHICH INDIVIDUAL INDIANS MAY HOLD TRACTS SELECTED BY THEM WITHIN THE
RESERVATION, TO PASS LAWS REGULATING ALIENATION AND DESCENT AND FOR THE
GOVERNMENT OF THE TRIBE AND ITS PEOPLE UPON THE RESERVATION DETRACTS
NOTHING FROM THE TRIBE'S OWNERSHIP, BUT WAS RESERVED FOR THE MORE
CONVENIENT DISCHARGE OF THE DUTIES OF THE UNITED STATES AS GUARDIAN AND
SOVEREIGN. 

UNITED STATES V. COOK, SUPRA, GIVES NO SUPPORT TO THE CONTENTION THAT
IN ASCERTAINING JUST COMPENSATION FOR THE INDIAN RIGHT TAKEN, THE VALUE
OF MINERAL AND TIMBER RESOURCES IN THE RESERVATION SHOULD BE EXCLUDED. 
THAT CASE DID NOT INVOLVE ADJUDICATION OF THE SCOPE OF INDIAN TITLE TO
LAND, MINERALS OR STANDING TIMBER, BUT ONLY THE RIGHT OF THE UNITED
STATES TO REPLEVIN LOGS CUT AND SOLD BY A FEW UNAUTHORIZED MEMBERS OF
THE TRIBE.  WE HELD THAT, AS AGAINST THE PURCHASER FROM THE WRONGDOERS,
THE UNITED STATES WAS ENTITLED TO POSSESSION.  IT WAS NOT THERE DECIDED
THAT THE TRIBE'S RIGHT OF OCCUPANCY IN PERPETUITY DID NOT INCLUDE
OWNERSHIP OF THE LAND OR MINERAL DEPOSITS OR STANDING TIMBER UPON THE
RESERVATION, OR THAT THE TRIBE'S RIGHT WAS THE MERE EQUIVALENT OF, OR
LIKE, THE TITLE OF A LIFE TENANT. 

THE LOWER COURT DID NOT ERR IN HOLDING THAT THE RIGHT OF THE SHOSHONE
TRIBE INCLUDED THE TIMBER AND MINERALS WITHIN THE RESERVATION. 
AFFIRMED. 

MR. JUSTICE STONE AND MR. JUSTICE CARDOZO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE REED DISSENTS. 
..END :






U.S. V. KLAMATH INDIANS, 304 U.S. 119 


NO. 707.  ARGUED APRIL 1, 4, 1938.  - DECIDED APRIL 25, 1938.  - 85 CT.
CLS. 451, AFFIRMED. 


1.  IN A TREATY BY WHICH THE KLAMATH AND OTHER TRIBES OF INDIANS CEDED
LAND WHICH THEY HAD HELD IN IMMEMORIAL POSSESSION, PART WAS RETAINED,
"UNTIL OTHERWISE DIRECTED BY THE PRESIDENT," TO BE SET APART AS A
RESIDENCE FOR THE INDIANS AND "HELD AND REGARDED AS AN INDIAN
RESERVATION."  PART OF THE RESERVED LAND WAS SUBSEQUENTLY APPROPRIATED
BY THE UNITED STATES.  HELD: 

(1)  THAT THE WORDS QUOTED DID NOT DETRACT FROM THE TRIBES' RIGHT OF
OCCUPANCY.  P. 122. 

(2)  IN ASCERTAINING JUST COMPENSATION FOR THE LAND APPROPRIATED, THE
VALUE OF THE STANDING TIMBER SHOULD BE INCLUDED.  ID. 

(3)  WHILE THE UNITED STATES HAS POWER TO CONTROL AND MANAGE THE
AFFAIRS OF ITS INDIAN WARDS IN GOOD FAITH FOR THEIR WELFARE, THAT POWER
IS SUBJECT TO CONSTITUTIONAL LIMITATIONS, AND DOES NOT ENABLE THE
UNITED STATES WITHOUT PAYING JUST COMPENSATION THEREFOR TO APPROPRIATE
LANDS OF AN INDIAN TRIBE TO ITS OWN USE OR TO HAND THEM OVER TO
OTHERS.  P. 123. 

(4)  THE TAKING OF PROPERTY BY THE UNITED STATES IN THE EXERTION OF
ITS POWER OF EMINENT DOMAIN IMPLIES A PROMISE TO PAY JUST COMPENSATION,
I.E., VALUE AT THE TIME OF THE TAKING PLUS AN AMOUNT SUFFICIENT TO
PRODUCE THE FULL EQUIVALENT OF THAT VALUE PAID CONTEMPORANEOUSLY WITH
THE TAKING.  ID. 

2.  PART OF THE UNALLOTTED PORTION OF AN INDIAN RESERVATION WAS
CONVEYED TO A ROAD COMPANY BY THE SECRETARY OF THE INTERIOR UNDER
AUTHORITY OF CONGRESS IN EXCHANGE FOR A RECONVEYANCE OF ALLOTTED LAND
WHICH HAD PREVIOUSLY BEEN CONVEYED BY MISTAKE.  HELD A VALID EXERTION
OF THE POWER OF EMINENT DOMAIN, IMPLYING A PROMISE BY THE GOVERNMENT TO
PAY JUST COMPENSATION TO THE INDIANS.  P. - . 

IT WAS NOT A CASE OF LANDS "WRONGFULLY APPROPRIATED," AS TO WHICH THE
ACT OF MAY 26, 1920, WHICH FIRST CONFERRED JURISDICTION IN THIS CASE,
CONFINED THE DAMAGES TO VALUE OF THE LANDS AT TIME OF APPROPRIATION. 
P. 124. 

CONGRESS, BY THE ACT OF MAY 15, 1936, CONFERRING ADDITIONAL
JURISDICTION IN THIS CASE UPON THE COURT OF CLAIMS, INTENDED TO GRANT
TO THE INDIANS THE RIGHT TO HAVE THEIR CLAIM FOR JUST COMPENSATION,
UNDER THE CONSTITUTION, FOR THE LAND TAKEN, JUDICIALLY DETERMINED
WITHOUT REGARD TO AN EARLIER SETTLEMENT AND IRRESPECTIVE OF THE
RELEASE.  P. 125. 

UNITED STATES V. KLAMATH AND MOADOC TRIBES OF INDIANS ET AL. 

APPEAL FROM THE COURT OF CLAIMS. 

APPEAL, UNDER THE SPECIAL JURISDICTIONAL ACT OF MAY 15, 1936, FROM A
JUDGMENT SUSTAINING THE INDIANS' CLAIM TO COMPENSATION FOR LAND TAKEN
BY THE UNITED STATES.  FOR AN EARLIER PHASE, SEE 296 U.S. 244. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

CONGRESS, BY ACT OF MAY 26, 1920,  FN1  GAVE TO THE LOWER COURT
JURISDICTION OF CLAIMS OF RESPONDENTS AGAINST THE UNITED STATES.  THEY
SUED TO RECOVER THE VALUE OF 87,000 ACRES OF LAND ALLEGED TO HAVE BEEN
TAKEN FROM THEM BY THE UNITED STATES AUGUST 22, 1906.  THE COURT OF
CLAIMS MADE SPECIAL FINDINGS OF FACT, STATED ITS CONCLUSION OF LAW AND
DISMISSED THE CASE.  WE AFFIRMED ON THE GROUND THAT THE ACT DID NOT
CONFER JURISDICTION OF RELEASED CLAIMS AND THAT THIS CLAIM HAD BEEN
RELEASED.  296 U.S. 244.  THEN, BY ACT OF MAY 15, 1936,  FN2  THE
CONGRESS ENACTED "THAT IN THE SUIT NUMBERED E-346(THIS SUIT) HERETOFORE
INSTITUTED IN THE COURT OF CLAIMS BY THE KLAMATH AND MODOC TRIBES AND
YAHOOSKIN BAND OF SNAKE INDIANS UNDER AN ACT  ...  APPROVED MAY 26,
1920, JURISDICTION IS HEREBY CONFERRED UPON SAID COURT, AND IT IS
HEREBY AUTHORIZED AND DIRECTED, IRRESPECTIVE OF ANY RELEASE OR
SETTLEMENT, TO REINSTATE AND RETRY SAID CASE AND TO HEAR AND DETERMINE
THE CLAIMS OF THE PLAINTIFFS ON THE MERITS, AND TO ENTER JUDGMENT
THEREON UPON THE PRESENT PLEADINGS, EVIDENCE, AND FINDINGS OF FACT,
WITH THE RIGHT OF APPEAL, RATHER THAN BY CERTIORARI, TO THE SUPREME
COURT OF THE UNITED STATES BY EITHER PARTY:  PROVIDED, THAT ANY PAYMENT
HERETOFORE MADE TO THE SAID INDIANS BY THE UNITED STATES IN CONNECTION
WITH ANY RELEASE OR SETTLEMENT SHALL BE CHARGED AS AN OFFSET, BUT SHALL
NOT BE TREATED AS AN ESTOPPEL." 

THE FINDINGS SHOW:  IN 1864 PLAINTIFFS HELD BY IMMEMORIAL POSSESSION
MORE THAN 20,000,000 ACRES LOCATED WITHIN WHAT NOW CONSTITUTES OREGON
AND CALIFORNIA.  BY AN ACT  FN3  OF MARCH 25 OF THAT YEAR THE PRESIDENT
WAS AUTHORIZED TO CONCLUDE WITH THEM A TREATY FOR THE PURCHASE OF THE
COUNTRY THEY OCCUPIED.  THE TREATY WAS MADE OCTOBER 14 FOLLOWING.  FN4
A PROVISO SETS APART A TRACT RETAINED OUT OF THE COUNTRY A PART OF
WHICH WAS CEDED, TO BE HELD UNTIL OTHERWISE DIRECTED BY THE PRESIDENT,
AS A RESIDENCE FOR PLAINTIFFS, WITH SPECIFIED PRIVILEGES.  RIGHTS OF
WAY FOR PUBLIC ROADS WERE RESERVED.  FN5  SHORTLY BEFORE THE TREATY WAS
MADE CONGRESS GRANTED OREGON, TO AID IN THE CONSTRUCTION OF A MILITARY
ROAD, THE ODD-NUMBERED SECTIONS FOR THREE IN WIDTH ON EACH SIDE OF THE
PROPOSED ROAD.  FN6  OREGON ACCEPTED THE GRANT AND ASSIGNED IT TO THE
ROAD COMPANY WHICH UNDERTOOK TO CONSTRUCT THE ROAD.  CONGRESS
RECOGNIZED THE ASSIGNMENT.  FN7  PATENTS WERE ISSUED TO THE STATE AND
TO THE ROAD COMPANY FOR IN ALL 420,240.67 ACRES, TITLE TO WHICH WAS
LATER ACQUIRED BY A LAND COMPANY.  EXCLUSIVE OF RIGHT OF WAY, 111,385
ACRES SO ACQUIRED BY THAT COMPANY WERE WITHIN THE BOUNDARIES OF THE
RESERVATION AND HAD BEEN ALLOTTED IN SEVERALTY TO MEMBERS OF THE
TRIBE.  THE UNITED STATES BROUGHT SUIT BUT FAILED TO RECOVER THAT
AREA.  FN8  CONGRESS BY ACT OF JUNE 21, 1906,  FN9  AUTHORIZED THE
SECRETARY OF THE INTERIOR TO EXCHANGE UNALLOTTED LANDS IN THE
RESERVATION FOR THE ALLOTTED LANDS BY MISTAKE EARLIER CONVEYED.  HE
MADE AN AGREEMENT WITH THE LAND COMPANY PURSUANT TO WHICH, ON AUGUST
22, 1906, IT CONVEYED THE ALLOTTED LANDS BACK TO THE UNITED STATES AND
IN RETURN THE LATTER CONVEYED TO THE COMPANY 87,000 ACRES OF UNALLOTTED
LANDS.  THAT TRANSFER WAS MADE WITHOUT THE KNOWLEDGE OR CONSENT OF
PLAINTIFFS AND WITHOUT GIVING THEM ANY COMPENSATION FOR THE LANDS SO
TAKEN FROM THEIR RESERVATION.  LATER, HOWEVER, THE UNITED STATES PAID
THEM $108,750 FOR WHICH THEY RELEASED THEIR CLAIM.  FN10  THERE WAS
THEN UPON THE LAND 1,713,000,000 BOARD FEET OF MERCHANTABLE TIMBER OF
THE VALUE OF $1.50 PER THOUSAND; THE VALUE OF THE LANDS INCLUDING
TIMBER WAS $2,980,000.  FROM THAT AMOUNT THE COURT SUBTRACTED THE
$108,750 AND TO THE REMAINDER ADDED 5 PER CENT. PER ANNUM TO DATE OF
JUDGMENT; FROM THE TOTAL TOOK THE AMOUNT IT FOUND THE UNITED STATES
ENTITLED TO SET OFF AGAINST PLAINTIFF'S CLAIM (ACT OF MAY 26, 1920, 41
STAT. 623, SEC. 2), AND AS OF JUNE 7, 1937, GAVE JUDGMENT FOR THE
BALANCE $5,313,347.32, WITH INTEREST ON A PART OF THAT AMOUNT UNTIL
PAID. 

1.  THE UNITED STATES CONTENDS THAT THE LOWER COURT ERRED IN
INCLUDING THE VALUE OF THE TIMBER.  THE TRACT TAKEN WAS A PART OF THE
RESERVATION RETAINED BY PLAINTIFFS OUT OF THE COUNTRY HELD BY THEM IN
IMMEMORIAL POSSESSION, FROM WHICH WAS MADE THE CESSION BY THE TREATY OF
OCTOBER 14, 1864.  THE CLAUSE DECLARING THAT THE DISTRICT RETAINED
SHOULD, UNTIL OTHERWISE DIRECTED BY THE PRESIDENT, BE SET APART AS A
RESIDENCE FOR THE INDIANS AND "HELD AND REGARDED AS AN INDIAN
RESERVATION" CLEARLY DID NOT DETRACT FROM THE TRIBES' RIGHT OF
OCCUPANCY.  THE WORTH ATTRIBUTABLE TO THE TIMBER WAS A PART OF THE
VALUE OF THE LAND UPON WHICH IT WAS STANDING.  PLAINTIFFS WERE ENTITLED
TO HAVE THAT ELEMENT OF VALUE INCLUDED AS A PART OF THE COMPENSATION
FOR THE LANDS TAKEN.  UNITED STATES V. SHOSHONE TRIBE, ANTE, P. 111. 

2.  THE UNITED STATES ALSO CONTENDS THAT THE LOWER COURT ERRED IN
ALLOWING INTEREST AGAINST THE UNITED STATES ON THE UNPAID VALUE OF THE
87,000 ACRES FROM THE TIME OF THE EXCHANGE TO THE DATE OF THE JUDGMENT,
AND TO SUPPORT THAT CONTENTION ARGUES THAT THERE WAS NO EXERCISE OF THE
POWER OF EMINENT DOMAIN AND THAT THE JURISDICTIONAL ACT OF 1920 LIMITED
RECOVERY TO THE VALUE OF THE LAND ON THE DATE OF THE TAKING, WITHOUT
INTEREST. 

IT IS APPROPRIATE FIRST TO OBSERVE THAT WHILE THE UNITED STATES HAS
POWER TO CONTROL AND MANAGE THE AFFAIRS OF ITS INDIAN WARDS IN GOOD
FAITH FOR THEIR WELFARE, THAT POWER IS SUBJECT TO CONSTITUTIONAL
LIMITATIONS, AND DOES NOT ENABLE THE UNITED STATES WITHOUT PAYING JUST
COMPENSATION THEREFOR TO APPROPRIATE LANDS OF AN INDIAN TRIBE TO ITS
OWN USE OR TO HAND THEM OVER TO OTHERS.  CHIPPEWA INDIANS V. UNITED
STATES, 301 U.S. 358, 375, AND CASES CITED.  NOR IS IT QUITE ACCURATE
TO SAY THAT INTEREST AS SUCH IS ADDED TO VALUE AT THE TIME OF THE
TAKING IN ORDER TO ARRIVE AT JUST COMPENSATION SUBSEQUENTLY ASCERTAINED
AND PAID.  THE ESTABLISHED RULE IS THAT THE TAKING OF PROPERTY BY THE
UNITED STATES IN THE EXERTION OF ITS POWER OF EMINENT DOMAIN IMPLIES A
PROMISE TO PAY JUST COMPENSATION, I.E., VALUE AT THE TIME OF THE TAKING
PLUS AN AMOUNT SUFFICIENT TO PRODUCE THE FULL EQUIVALENT OF THAT VALUE
PAID CONTEMPORANEOUSLY WITH THE TAKING.  JACOBS V. UNITED STATES, 290
U.S. 13, 16-17, AND CASES CITED.  THE LANDS HERE IN QUESTION ARE NOT
THE ALLOTTED AREAS MAKING UP THE 111,385 ACRES THAT THE UNITED STATES
CONVEYED BY MISTAKE AND THROUGH ERROR IN THE CONDUCT OF LITIGATION, AS
ITS COUNSEL HERE SAYS, FAILED TO RECOVER.  FN11  PLAINTIFFS SEEK
COMPENSATION FOR THE 87,000 ACRES GIVEN TO THE LAND COMPANY IN EXCHANGE
FOR THE ALLOTTED AREAS WHICH THE LATTER THEN OWNED. 

HAVING BEEN INFORMED OF THE FAILURE OF THE UNITED STATES TO RECOVER
THE ALLOTTED LANDS, CONGRESS, BY THE ACT OF MARCH 3, 1905, DIRECTED THE
SECRETARY OF THE INTERIOR TO ASCERTAIN "ON WHAT TERMS THE SAID COMPANY
WILL EXCHANGE SUCH LANDS (THE 111,385 ACRES OF ALLOTTED LANDS) FOR
OTHER LANDS, NOT ALLOTTED TO INDIANS, WITHIN THE ORIGINAL BOUNDARIES OF
SAID RESERVATION."  FN12 THE SECRETARY HAVING REPORTED, THE CONGRESS BY
THE ACT OF JUNE 21, 1906 AUTHORIZED HIM TO EXCHANGE 87,000 ACRES OF THE
TRIBES' LANDS FOR LANDS THERETOFORE ERRONEOUSLY CONVEYED.  THE EXCHANGE
HAVING BEEN CONSUMMATED, CONGRESS BY ACT OF APRIL 30, 1908  FN13
APPROPRIATED $108,750 AS COMPENSATION.  THAT AMOUNT WAS PAID PLAINTIFFS
IN ACCORDANCE WITH THE ACT; THEY GAVE THE RELEASE HERE HELD VALID, 296
U.S. 244.  THE ACT OF MAY 15, 1936 FOLLOWED. 

THE UNITED STATES ARGUES THAT THE RULE OF JUST COMPENSATION DOES NOT
APPLY BECAUSE "THE TRACT WAS LOST BY MISTAKE RATHER THAN TAKEN BY THE
POWER OF EMINENT DOMAIN."  BUT AS TO THE 87,000 ACRES HERE INVOLVED
THERE IS NO FOUNDATION FOR THAT ASSERTION.  UNQUESTIONABLY CONGRESS HAD
POWER TO DIRECT THE EXCHANGE AND FOR THAT PURPOSE TO AUTHORIZE
EXPROPRIATION OF PLAINTIFFS' LANDS.  THE VALIDITY OF ITS ENACTMENTS IS
NOT QUESTIONED.  THE TAKING WAS TO ENABLE THE GOVERNMENT TO DISCHARGE
ITS OBLIGATION, WHETHER LEGAL OR MERELY MORAL IS IMMATERIAL, TO MAKE
RESTITUTION OF THE ALLOTTED LANDS.  THE TAKING WAS IN INVITUM,
SPECIFICALLY AUTHORIZED BY LAW, A VALID EXERTION OF THE SOVEREIGN POWER
OF EMINENT DOMAIN.  IT THEREFORE IMPLIED A PROMISE ON THE PART OF THE
GOVERNMENT TO PAY PLAINTIFFS JUST COMPENSATION.  JACOBS V. UNITED
STATES, SUPRA. 

THE PROVISION OF THE ACT OF 1920 INVOKED BY THE UNITED STATES IS:
"THAT IF IT BE DETERMINED BY THE COURT OF CLAIMS IN THE SAID SUIT
HEREIN AUTHORIZED THAT THE UNITED STATES GOVERNMENT HAS WRONGFULLY
APPROPRIATED ANY LANDS BELONGING TO THE SAID INDIANS, DAMAGES THEREFOR
SHALL BE CONFINED TO THE VALUE OF THE SAID LAND AT THE TIME OF SAID
APPROPRIATION.  ...  "  AS SHOWN ABOVE, THE 87,000 ACRES WERE TAKEN BY
VALID EXERTION OF THE POWER OF EMINENT DOMAIN.  THE TAKING WAS
CONSUMMATED PURSUANT TO THE ACT OF 1906; IT WAS RATIFIED BY
APPROPRIATION AND PAYMENT UNDER THE ACT OF 1908.  IT IMPLIED A PROMISE
TO PAY JUST COMPENSATION.  CLEARLY THE LANDS IN QUESTION WERE NOT
"WRONGFULLY APPROPRIATED." 

MOREOVER THE CONGRESS BY THE ACT OF MAY 15, 1936 INTENDED TO GRANT TO
THE PLAINTIFFS THE RIGHT TO HAVE THEIR CLAIM FOR JUST COMPENSATION
UNDER THE CONSTITUTION FOR THE 87,000 ACRES JUDICIALLY DETERMINED
WITHOUT REGARD TO THE SETTLEMENT AND IRRESPECTIVE OF THE RELEASE.  FN14
IT SPECIFICALLY DIRECTED THE LOWER COURT TO DETERMINE THE CLAIM OF
PLAINTIFFS ON THE MERITS AND TO ENTER JUDGMENT THEREON "UPON THE
PRESENT PLEADINGS, EVIDENCE AND FINDINGS OF FACT."  UNQUESTIONABLY THE
FINDINGS OF FACT ARE SUFFICIENT TO SUSTAIN THE JUDGMENT.  AFFIRMED. 

FN1  41 STAT. 623. 

FN2  49 STAT. 1276. 

FN3  13 STAT. 37. 

FN4  RATIFIED JULY 2, 1866; PROCLAIMED FEBRUARY 17, 1870.  16 STAT.
707. 

FN5  16 STAT. 708. 

FN6  ACT OF JULY 2, 1864, 13 STAT. 355. 

FN7  ACT OF JUNE 18, 1874, 18 STAT. 80. 

FN8  UNITED STATES V. DALLAS ROAD CO., 140 U.S. 599.  UNITED STATES
V. CALIFORNIA & OREGON LAND CO., 148 U.S. 31.  UNITED STATES V.
CALIFORNIA & OREGON LAND CO., 192 U.S. 355. 

FN9  34 STAT. 325. 

FN10  THE RELEASE WAS HELD VALID IN KLAMATH INDIANS V. UNITED STATES,
296 U.S. 244. 

FN11  SEE FOOTNOTE 8, SUPRA. 

FN12  33 STAT. 1033. 

FN13  35 STAT. 70. 

FN14  A LETTER OF THE SECRETARY OF THE INTERIOR TO THE COMMITTEE ON
INDIAN AFFAIRS ON THE PROPOSED ACT OF 1936 SAID IN PART:  "THE BILL NOW
HERE SEEKS TO AUTHORIZE 'EFFECTIVE JUDICIAL DETERMINATION' OF THE CLAIM
OF THESE INDIANS FOR THE LAND TAKEN FROM THEIR RESERVATION AND GIVEN TO
THE CALIFORNIA & OREGON LAND CO., WHICH THE COURTS HAVE PLAINLY
INDICATED TO HAVE BEEN FOR AN INADEQUATE CONSIDERATION."  H. REP. NO.
2354, 74TH CONG., 2D SESS. 

THE REPORT OF THE HOUSE COMMITTEE ON INDIAN AFFAIRS STATED:  "THE
PENDING BILL TO AMEND THE JURISDICTIONAL ACT IS LIMITED SOLELY TO THE
OBJECT OF GIVING EFFECT TO THIS SUGGESTION OF THE SUPREME COURT BY
GRANTING THE KLAMATH TRIBES THE RIGHT TO HAVE THEIR CLAIM FOR JUST
COMPENSATION UNDER THE CONSTITUTION FOR THE TAKING OF THE 87,000 ACRES
OF THEIR LANDS JUDICIALLY DETERMINED ON ITS MERITS WITHOUT REGARD TO
THE GROSSLY INEQUITABLE SETTLEMENT HERETOFORE MADE."  H. REP. NO. 2354,
74TH CONG., 2ND SESS. 

THE REPORT OF THE SENATE COMMITTEE ON INDIAN AFFAIRS STATED:  "THE
PURPOSE OF THE BILL IS TO ENABLE THESE INDIAN TRIBES TO OBTAIN JUST
COMPENSATION FOR THE TAKING OF A PART OF THEIR RESERVATION IN THE STATE
OF OREGON BY THE SECRETARY OF THE INTERIOR UNDER AUTHORITY OF AN ACT OF
CONGRESS APPROVED JUNE 21, 1906."  S. REP. NO. 1749, 74TH CONG., 2ND
SESS. 

MR. JUSTICE STONE, MR. JUSTICE CARDOZO, AND MR. JUSTICE REED TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :
























GUARANTY TRUST CO. V. U.S., 304 U.S. 126 


NO. 566.  ARGUED MARCH 28, 29, 1938.  - DECIDED APRIL 25, 1938.  - 91
F.2D 898, REVERSED. 


1.  THE RULE WHICH EXEMPTS THE UNITED STATES AND THE STATES FROM THE
OPERATION OF STATUTES OF LIMITATIONS RESTS NOT UPON ANY INHERITED
NOTION OF ROYAL PREROGATIVE BUT UPON THE PUBLIC POLICY OF PROTECTING
THE PUBLIC RIGHTS, AND THEREBY THE CITIZEN, FROM INJURY THROUGH
NEGLIGENCE OF PUBLIC OFFICERS.  P. 132. 

2.  THE BENEFIT OF THIS RULE DOES NOT EXTEND TO A FOREIGN SOVEREIGN
SUING IN A STATE OR FEDERAL COURT.  P. 133. 

IN SUCH CASES, THE REASON FOR THE RULE - THE CONSIDERATIONS OF PUBLIC
POLICY ABOVE MENTIONED - ARE ABSENT. 

3.  THE RIGHTS OF A SOVEREIGN STATE ARE VESTED IN THE STATE RATHER
THAN IN ANY PARTICULAR GOVERNMENT WHICH MAY PURPORT TO REPRESENT IT,
AND SUIT IN ITS BEHALF MAY BE MAINTAINED IN OUR COURTS ONLY BY THAT
GOVERNMENT WHICH HAS BEEN RECOGNIZED BY THE POLITICAL DEPARTMENT OF OUR
OWN GOVERNMENT AS THE AUTHORIZED GOVERNMENT OF THE FOREIGN STATE.  P.
136. 

4.  WHAT GOVERNMENT IS TO BE REGARDED HERE AS REPRESENTATIVE OF A
FOREIGN SOVEREIGN STATE IS A POLITICAL RATHER THAN A JUDICIAL QUESTION,
AND IS TO BE DETERMINED BY THE POLITICAL DEPARTMENT OF OUR GOVERNMENT. 
THE ACTION OF THAT DEPARTMENT IN RECOGNIZING A FOREIGN GOVERNMENT AND
IN RECEIVING ITS DIPLOMATIC REPRESENTATIVES IS CONCLUSIVE ON ALL
DOMESTIC COURTS, WHICH ARE BOUND TO ACCEPT THAT DETERMINATION, ALTHOUGH
THEY ARE FREE TO DECIDE FOR THEMSELVES ITS LEGAL CONSEQUENCES IN
LITIGATIONS PENDING BEFORE THEM.  P. 137. 

5.  AFTER THE OVERTHROW OF THE IMPERIAL RUSSIAN GOVERNMENT, THE
UNITED STATES RECOGNIZED, MARCH 22, 1917, THE PROVISIONAL GOVERNMENT OF
RUSSIA; AND THEREAFTER THE UNITED STATES CONTINUED TO RECOGNIZE THE
PROVISIONAL GOVERNMENT AND TO RECOGNIZE, AS ITS REPRESENTATIVES IN THIS
COUNTRY, ITS AMBASSADOR AND THE FINANCIAL ATTACHE OF ITS EMBASSY,  -
UNTIL NOVEMBER 16, 1933, WHEN THE SOVIET GOVERNMENT, WHICH ON NOVEMBER
7, 1917, HAD OVERTHROWN THE PROVISIONAL GOVERNMENT, WAS FOR THE FIRST
TIME RECOGNIZED BY THE UNITED STATES.  AT THAT SAME TIME THE UNITED
STATES, THROUGH AN AGREEMENT BETWEEN THE PRESIDENT AND A REPRESENTATIVE
OF THE SOVIET GOVERNMENT, TOOK FROM THAT GOVERNMENT AN ASSIGNMENT OF
ALL "AMOUNTS ADMITTED TO BE DUE OR THAT MAY BE FOUND TO BE DUE IT, AS
THE SUCCESSOR OF PRIOR GOVERNMENTS OF RUSSIA, OR OTHERWISE, FROM
AMERICAN NATIONALS, INCLUDING CORPORATIONS  ...  "  THE UNITED STATES,
AS SUCH ASSIGNEE, THEN SUED IN A FEDERAL COURT IN NEW YORK TO RECOVER
FROM A NEW YORK BANK THE AMOUNT OF A DEPOSIT WHICH HAD STOOD TO THE
CREDIT OF THE PROVISIONAL GOVERNMENT.  THE BANK SET UP THE NEW YORK
STATUTE OF LIMITATIONS, CLAIMING THAT IN FEBRUARY, 1918, IT HAD OFF-SET
THE DEPOSIT AGAINST INDEBTEDNESS DUE IT BY THE RUSSIAN GOVERNMENT, AND
THAT ON THAT DATE IT HAD REPUDIATED ALL LIABILITY ON THE DEPOSIT
ACCOUNT, AND THAT, PRIOR TO JUNE 30, 1922, IT HAD GIVEN DUE NOTICE OF
SUCH REPUDIATION TO BOTH THE FINANCIAL ATTACHE AND THE AMBASSADOR OF
THE PROVISIONAL GOVERNMENT, THUS STARTING THE RUNNING OF THE LIMITATION
PERIOD.  HELD: 

(1)  THAT SUCH NOTICE OF REPUDIATION, GIVEN TO THE THEN DULY
RECOGNIZED DIPLOMATIC REPRESENTATIVES, WAS NOTICE TO THE RUSSIAN
STATE.  P. 139. 

(2)  THAT THE LATER RECOGNITION OF THE SOVIET GOVERNMENT LEFT
UNAFFECTED THOSE LEGAL CONSEQUENCES OF THE PREVIOUS RECOGNITION OF THE
PROVISIONAL GOVERNMENT AND ITS REPRESENTATIVES, WHICH ATTACHED TO
ACTION TAKEN HERE PRIOR TO THE LATER RECOGNITION.  P. 140. 

(3)  THAT IF THE STATUTORY PERIOD HAS RUN AGAINST THE CLAIM OF THE
RUSSIAN GOVERNMENT, THE CLAIM OF THE UNITED STATES, AS ASSIGNEE, IS
LIKEWISE BARRED SINCE: 

(A)  PROOF THAT THE STATUTORY PERIOD HAD RUN BEFORE THE ASSIGNMENT
OFFENDS AGAINST NO POLICY OF PROTECTING THE DOMESTIC SOVEREIGN.  IT
DEPRIVES THE UNITED STATES OF NO RIGHT, FOR THE PROOF DEMONSTRATES THAT
THE UNITED STATES NEVER ACQUIRED A RIGHT FREE OF A PREEXISTING
INFIRMITY, THE RUNNING OF LIMITATIONS AGAINST ITS ASSIGNOR, WHICH
PUBLIC POLICY DOES NOT FORBID.  P. 141. 

(B)  ASSUMING THAT THE RESPECTIVE RIGHTS OF THE BANK AND THE SOVIET
GOVERNMENT COULD HAVE BEEN ALTERED, AND THE BANK'S RIGHT TO PLEAD THE
STATUTE OF LIMITATIONS CURTAILED, BY FORCE OF AN EXECUTIVE AGREEMENT
BETWEEN THE PRESIDENT AND THE SOVIET GOVERNMENT, THERE IS NOTHING IN
THE AGREEMENT AND ASSIGNMENT OF NOVEMBER 16, 1933, PURPORTING TO
ENLARGE THE ASSIGNED RIGHTS IN THE HANDS OF THE UNITED STATES, OR TO
FREE IT FROM THE CONSEQUENCES OF THE FAILURE OF THE RUSSIAN GOVERNMENT
TO PROSECUTE ITS CLAIM WITHIN THE STATUTORY PERIOD.  P. 142. 

(4)  EVEN THE LANGUAGE OF A TREATY WILL BE CONSTRUED, WHEREVER
REASONABLY POSSIBLE, SO AS NOT TO OVERRIDE STATE LAWS OR TO IMPAIR
RIGHTS ARISING UNDER THEM.  P. 143. 

GUARANTY TRUST CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 681, TO REVIEW THE REVERSAL OF A JUDGMENT
DISMISSING THE COMPLAINT IN AN ACTION BY THE UNITED STATES TO RECOVER
FROM THE PRESENT PETITIONER THE AMOUNT OF A BANK DEPOSIT WHICH THE
UNITED STATES CLAIMED AS ASSIGNEE OF THE RUSSIAN GOVERNMENT.  THE
MOTION WAS BASED ON THE NEW YORK STATUTE OF LIMITATIONS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE PRINCIPAL QUESTIONS FOR DECISION ARE WHETHER, IN A SUIT AT LAW
BROUGHT IN A FEDERAL DISTRICT COURT TO RECOVER THE DEPOSIT OF A FOREIGN
GOVERNMENT WITH A NEW YORK BANK, SUCH GOVERNMENT IS SUBJECT TO THE
LOCAL STATUTE OF LIMITATIONS AS ARE PRIVATE LITIGANTS; AND, IF SO,
WHETHER THE ASSIGNMENT OF NOVEMBER 16, 1933, BY THE RUSSIAN SOVIET
GOVERNMENT TO THE UNITED STATES OF THE RIGHT OF THE FORMER TO THE BANK
ACCOUNT RESTRICTS OR OVERRIDES THE OPERATION OF THE STATUTE OF
LIMITATIONS.  A SUBSIDIARY QUESTION IS WHETHER IN THE CIRCUMSTANCES OF
THE CASE THE RUNNING OF THE STATUTE OF LIMITATIONS, IF OTHERWISE
APPLICABLE, WAS AFFECTED BY OUR NONRECOGNITION OF THE SOVIET GOVERNMENT
DURING THE INTERVAL OF APPROXIMATELY SIXTEEN YEARS BETWEEN RECOGNITION
OF THE PROVISIONAL GOVERNMENT OF RUSSIA AND RECOGNITION OF ITS
SUCCESSOR. 

ON JULY 15, 1916, THE IMPERIAL RUSSIAN GOVERNMENT OPENED A BANK
ACCOUNT WITH PETITIONER, THE GUARANTY TRUST COMPANY, A NEW YORK BANKING
CORPORATION.  ON MARCH 16, 1917, THE IMPERIAL GOVERNMENT WAS OVERTHROWN
AND WAS SUCCEEDED BY THE PROVISIONAL GOVERNMENT OF RUSSIA WHICH WAS
RECOGNIZED BY THE UNITED STATES ON MARCH 22, 1917.  ON JULY 5, 1917,
MR. BORIS BAKHMETEFF WAS OFFICIALLY RECOGNIZED BY THE PRESIDENT AS THE
AMBASSADOR OF RUSSIA.  ON JULY 12, 1917, THE ACCOUNT BEING OVERDRAWN,
$5,000,000 WAS DEPOSITED IN THE ACCOUNT BY MR. SERGE UGHET, FINANCIAL
ATTACHE OF THE RUSSIAN EMBASSY IN THE UNITED STATES.  ON NOVEMBER 7,
1917, THE PROVISIONAL GOVERNMENT WAS OVERTHROWN AND WAS SUCCEEDED BY
THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST REPUBLICS, WHICH WILL
BE REFERRED TO AS THE SOVIET GOVERNMENT.  AT THAT TIME THERE REMAINED
ON DEPOSIT IN THE ACCOUNT THE SUM OF APPROXIMATELY $5,000,000.  ON
NOVEMBER 28, 1917, THE SOVIET GOVERNMENT DISMISSED BAKHMETEFF AS
AMBASSADOR AND UGHET AS FINANCIAL ATTACHE.  BUT THE UNITED STATES
CONTINUED TO RECOGNIZE BAKHMETEFF AS AMBASSADOR UNTIL ON JUNE 30, 1922,
HE WITHDREW FROM HIS REPRESENTATION OF THE RUSSIAN GOVERNMENT. 
THEREAFTER, UNTIL NOVEMBER 16, 1933, IT CONTINUED TO RECOGNIZE THE
FINANCIAL ATTACHE, AND AFTER THE RETIREMENT OF BAKHMETEFF AS AMBASSADOR
IT RECOGNIZED THE FORMER AS CUSTODIAN OF RUSSIAN PROPERTY IN THE UNITED
STATES. 

ON NOVEMBER 16, 1933, THE UNITED STATES RECOGNIZED THE SOVIET
GOVERNMENT, AND ON THAT DATE TOOK FROM IT AN ASSIGNMENT OF ALL "AMOUNTS
ADMITTED TO BE DUE THAT MAY BE FOUND TO BE DUE IT, AS THE SUCCESSOR OF
PRIOR GOVERNMENTS OF RUSSIA, OR OTHERWISE, FROM AMERICAN NATIONALS,
INCLUDING CORPORATIONS  ...  "  AFTER MAKING DEMAND UPON THE PETITIONER
FOR PAYMENT OF THE BALANCE OF THE ACCOUNT THE UNITED STATES, ON
SETEMBER 21, 1934, BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT FOR
SOUTHERN NEW YORK TO RECOVER THE DEPOSIT.  PETITIONER THEN MOVED UNDER
THE CONFORMITY ACT, 28 U.S.C. SEC. 724; NEW YORK CIVIL PRACTICE ACT,
SEC. 307; AND RULES 107 AND 120 OF THE NEW YORK RULES OF CIVIL
PRACTICE, TO DISMISS THE COMPLAINT ON THE GROUND THAT THE RECOVERY WAS
BARRED BY THE NEW YORK SIX YEAR STATUTE OF LIMITATIONS. 

IN SUPPORT OF THE MOTION PETITIONER SUBMITTED NUMEROUS AFFIDAVITS,
TWO DEPOSITIONS, AND OTHER DOCUMENTARY PROOF TENDING TO SHOW THAT ON
FEBRUARY 25, 1918, IT HAD APPLIED THE BALANCE OF THE ACCOUNT AS A
CREDIT AGAINST INDEBTEDNESS ALLEGED TO BE DUE TO IT BY THE RUSSIAN
GOVERNMENT BY REASON OF THE LATTER'S SEIZURE OF CERTAIN RUBLE DEPOSIT
ACCOUNTS OF PETITIONER IN RUSSIAN PRIVATE BANKS; THAT ON THAT DATE IT
HAD REPUDIATED ALL LIABILITY ON THE DEPOSIT ACCOUNT; AND THAT IT HAD
THEN GIVEN NOTICE OF SUCH REPUDIATION TO THE FINANCIAL ATTACHE OF THE
RUSSIAN EMBASSY AND LATER BOTH TO THE FINANCIAL ATTACHE AND TO
BAKHMETEFF AS AMBASSADOR.  THE UNITED STATES SUBMITTED AFFIDAVITS AND
EXHIBITS IN OPPOSITION.  THE DISTRICT COURT FOUND THAT PETITIONER HAD
REPUDIATED LIABILITY ON THE ACCOUNT ON FEBRUARY 25, 1918; THAT IT HAD
GIVEN DUE NOTICE OF REPUDIATION PRIOR TO JUNE 30, 1922 TO BOTH THE
FINANCIAL ATTACHE AND AMBASSADOR BAKHMETEFF; AND THAT RECOVERY WAS
BARRED BY THE APPLICABLE SIX YEAR STATUTE OF LIMITATIONS OF NEW YORK. 
NEW YORK CIVIL PRACTICE ACT, SEC. 48.  THE COURT OF APPEALS FOR THE
SECOND CIRCUIT REVERSED THE JUDGMENT FOR PETITIONER, HOLDING THAT THE
NEW YORK STATUTE OF LIMITATIONS DOES NOT RUN AGAINST A FOREIGN
SOVEREIGN.  91 F.(2D) 898.  MOVED BY THE IMPORTANCE OF THE QUESTIONS
INVOLVED, WE GRANTED CERTIORARI. 

RESPONDENT ARGUES THAT THE SOVIET GOVERNMENT, IN A SUIT BROUGHT IN
THE FEDERAL COURTS, IS NOT SUBJECT TO THE LOCAL STATUTE OF LIMITATIONS,
BOTH BECAUSE A FOREIGN, LIKE A DOMESTIC, SOVEREIGN IS NOT SUBJECT TO
STATUTES OF LIMITATIONS, AND ITS IMMUNITY AS IN THE CASE OF A DOMESTIC
SOVEREIGN CONSTITUTES AN IMPLIED EXCEPTION TO THAT STATUTE AND TO THE
CONFORMITY ACT; AND BECAUSE IN ANY CASE, SINCE NO SUIT TO RECOVER THE
DEPOSIT COULD HAVE BEEN MAINTAINED IN NEW YORK BY THE SOVIET GOVERNMENT
PRIOR TO ITS RECOGNITION BY THE UNITED STATES, AND SINCE ACCORDING TO
NEW YORK LAW THE STATUTE DOES NOT RUN DURING THE PERIOD WHEN SUIT
CANNOT BE BROUGHT, THE PRESENT SUIT IS NOT BARRED.  IT IS INSISTED
FURTHER THAT EVEN THOUGH THE SOVIET GOVERNMENT IS BOUND BY THE LOCAL
STATUTE OF LIMITATIONS THE UNITED STATES IS NOT SO BOUND, BOTH BECAUSE
THE NEW YORK STATUTE WHICH BARS THE REMEDY BUT DOES NOT EXTINGUISH THE
RIGHT IS NOT APPLICABLE TO THE UNITED STATES, AND BECAUSE THE STATUTE
IS INOPERATIVE AND INEFFECTIVE SINCE IT CONFLICTS WITH AND IMPEDES THE
EXECUTION OF THE EXECUTIVE AGREEMENT BETWEEN THE SOVIET GOVERNMENT AND
THE UNITED STATES BY WHICH THE ASSIGNMENT WAS EFFECTED.  FINALLY, THE
GOVERNMENT ASSAILS THE FINDING OF FACT OF THE DISTRICT COURT THAT
PETITIONER REPUDIATED THE LIABILITY UPON THE DEPOSIT ACCOUNT, AND
CONTENDS THAT NOTICE OF THE REPUDIATION GIVEN BY PETITIONER TO
REPRESENTATIVES OF THE PROVISIONAL GOVERNMENT WAS INEFFECTIVE TO SET
THE STATUTE RUNNING AGAINST THE SOVIET GOVERNMENT AND IN FAVOR OF
PETITIONER. 

FIRST.  THE RULE QUOD NULLUM TEMPUS OCCURRIT REGI - THAT THE
SOVEREIGN IS EXEMPT FROM THE CONSEQUENCES OF ITS LACHES, AND FROM THE
OPERATION OF STATUTES OF LIMITATIONS - APPEARS TO BE A VESTIGIAL
SURVIVAL OF THE PREROGATIVE OF THE CROWN.  SEE MAGDALEN COLLEGE CASE,
11 CO. REP. 66B, 74B; HOBART, L.C.J. IN SIR EDWARD COKE'S CASE, GODB. 
289, 295; BRACTON, DE LEGIBUS, LIB.  II, C. 5, SEC. 7.  BUT WHETHER OR
NOT THAT ALONE ACCOUNTS FOR ITS ORIGIN, THE SOURCE OF ITS CONTINUING
VITALITY WHERE THE ROYAL PRIVILEGE NO LONGER EXISTS IS TO BE FOUND IN
THE PUBLIC POLICY NOW UNDERLYING THE RULE EVEN THOUGH IT MAY IN THE
BEGINNING HAVE HAD A DIFFERENT POLICY BASIS.  COMPARE MAINE, ANCIENT
LAW (10TH ED., 1930) 32 ET SEQ. "THE TRUE REASON  ...  IS TO BE FOUND
IN THE GREAT PUBLIC POLICY OF PRESERVING THE PUBLIC RIGHTS, REVENUES,
AND PROPERTY FROM INJURY AND LOSS, BY THE NEGLIGENCE OF PUBLIC
OFFICERS.  AND THOUGH THIS IS SOMETIMES CALLED A PREROGATIVE RIGHT, IT
IS IN FACT NOTHING MORE THAN A RESERVATION, OR EXCEPTION, INTRODUCED
FOR THE PUBLIC BENEFIT, AND EQUALLY APPLICABLE TO ALL GOVERNMENTS." 
STORY, J., IN UNITED STATES V. HOAR, FED. CAS. NO. 15,373, P. 330. 
REGARDLESS OF THE FORM OF GOVERNMENT AND INDEPENDENTLY OF THE ROYAL
PREROGATIVE ONCE THOUGHT SUFFICIENT TO JUSTIFY IT, THE RULE IS
SUPPORTABLE NOW BECAUSE ITS BENEFIT AND ADVANTAGE EXTEND TO EVERY
CITIZEN, INCLUDING THE DEFENDANT, WHOSE PLEA OF LACHES OR LIMITATION IT
PRECLUDES; AND ITS UNIFORM SURVIVAL IN THE UNITED STATES HAS BEEN
GENERALLY ACCOUNTED FOR AND JUSTIFIED ON GROUNDS OF POLICY RATHER THAN
UPON ANY INHERITED NOTIONS OF THE PERSONAL PRIVILEGE OF THE KING. 
UNITED STATES V. KIRKPATRICK, 9 WHEAT.  720, 735; UNITED STATES V.
KNIGHT, 14 PET. 301, 315; UNITED STATES V. THOMPSON, 98 U.S. 486, 489;
FINK V. O'NEIL, 106 U.S. 272, 281; UNITED STATES V. NASHVILLE, C. & ST.
L. R. CO., 118 U.S. 120, 125.  SO COMPLETE HAS BEEN ITS ACCEPTANCE THAT
THE IMPLIED IMMUNITY OF THE DOMESTIC "SOVEREIGN," STATE OR NATIONAL,
HAS BEEN UNIVERSALLY DEEMED TO BE AN EXCEPTION TO LOCAL STATUTES OF
LIMITATIONS WHERE THE GOVERNMENT, STATE OR NATIONAL, IS NOT EXPRESSLY
INCLUDED; AND TO THE CONFORMITY ACT.  SEE UNITED STATES V. THOMPSON,
SUPRA. 

WHETHER THE BENEFIT OF THE RULE SHOULD BE EXTENDED TO A FOREIGN
SOVEREIGN SUING IN A STATE OR FEDERAL COURT IS A QUESTION TO WHICH NO
CONCLUSIVE ANSWER IS TO BE FOUND IN THE AUTHORITIES.  DILIGENT SEARCH
OF COUNSEL HAS REVEALED NO JUDICIAL DECISION SUPPORTING SUCH AN
APPLICATION OF THE RULE IN THIS OR ANY OTHER COUNTRY.  THE ALLEGED
IMMUNITY WAS DOUBTED IN FRENCH REPUBLIC V. SARATOGA VICHY SPRING CO.,
191 U.S. 427, 437, AND IN COMMISSIONERS OF THE SINKING FUND V. BUCKNER,
48 FED. 533.  IT WAS REJECTED IN WESTERN LUNATIC ASYLUM V. MILLER, 29
W. VA. 326, 329; 1 S.E. 740, AND WAS DISREGARDED IN ROYAL ITALIAN
GOVERNMENT V. INTERNATIONAL COMMITTEE OF Y.M.C.A., 273 N.Y. 468; 6
N.E.2D 407, WHERE NEITHER APPELLATE COURT DELIVERED AN OPINION. 

THE ONLY SUPPORT FOUND BY THE COURT BELOW FOR A DIFFERENT CONCLUSION
IS A REMARK IN THE OPINION OF THE COURT IN UNITED STATES V. NASHVILLE,
C. & ST. L.R. CO., SUPRA, WHERE ITS HOLDING THAT THE UNITED STATES,
SUING IN A FEDERAL COURT, IS NOT SUBJECT TO THE LOCAL STATUTE OF
LIMITATIONS, WAS SAID TO REST UPON A GREAT PRINCIPLE OF PUBLIC POLICY
"APPLICABLE TO ALL GOVERNMENTS ALIKE."  THE STATEMENT IS BUT A
PARAPHRASE, WHICH HAS FREQUENTLY APPEARED IN JUDICIAL OPINION,  FN1  OF
MR. JUSTICE STORY'S STATEMENT IN UNITED STATES V. HOAR, SUPRA, ALREADY
QUOTED.  HIS REFERENCE TO THE PUBLIC POLICY SUPPORTING THE RULE THAT
LIMITATION DOES NOT RUN AGAINST A DOMESTIC SOVEREIGN AS "EQUALLY
APPLICABLE TO ALL GOVERNMENTS" WAS OBVIOUSLY DESIGNED TO POINT OUT THAT
THE POLICY IS AS APPLICABLE TO OUR OWN AS TO A MONARCHICAL FORM OF
GOVERNMENT, AND IS THEREFORE NOT TO BE DISCARDED BECAUSE OF ITS FORMER
IDENTITY WITH THE ROYAL PREROGATIVE.  WE CAN FIND IN THAT PRONOUNCEMENT
AND IN ITS LATER VERSIONS NO INTIMATION THAT THE POLICY UNDERLYING
EXEMPTION OF THE DOMESTIC SOVEREIGN SUPPORTS ITS EXTENSION TO A FOREIGN
SOVEREIGN SUING IN OUR COURTS. 

IT IS TRUE THAT UPON THE PRINCIPLE OF COMITY FOREIGN SOVEREIGNS AND
THEIR PUBLIC PROPERTY ARE HELD NOT TO BE AMENABLE TO SUIT IN OUR COURTS
WITHOUT THEIR CONSENT.  SEE THE EXCHANGE, 7 CRANCH 116; BERIZZI BROS.
CO. V. S.S. PESARO, 271 U.S. 562, COMPANIA ESPANOLA V. THE NAVEMAR, 303
U.S. 68.  BUT VERY DIFFERENT CONSIDERATIONS APPLY WHERE THE FOREIGN
SOVEREIGN AVAILS ITSELF OF THE PRIVILEGE, LIKEWISE EXTENDED BY COMITY,
OF SUING IN OUR COURTS.  SEE THE SAPPHIRE, 11 WALL.  164, 167; RUSSIAN
S. F.S. REPUBLIC V. CIBRARIO, 235 N.Y. 255; 139 N.E. 259.  BY
VOLUNTARILY APPEARING IN THE ROLE OF SUITOR IT ABANDONS ITS IMMUNITY
FROM SUIT AND SUBJECTS ITSELF TO THE PROCEDURE AND RULES OF DECISION
GOVERNING THE FORUM WHICH IT HAS SOUGHT.  EVEN THE DOMESTIC SOVEREIGN
BY JOINING IN SUIT ACCEPTS WHATEVER LIABILITIES THE COURT MAY DECIDE TO
BE A REASONABLE INCIDENT OF THAT ACT.  UNITED STATES V. THE THEKLA, 266
U.S. 328, 340, 341; UNITED STATES V. STINSON, 197 U.S. 200, 205; THE
DAVIS, 10 WALL.  15; THE SIREN, 7 WALL.  152, 159.  FN2  AS IN THE CASE
OF THE DOMESTIC SOVEREIGN IN LIKE SITUATION, THOSE RULES, WHICH MUST BE
ASSUMED TO BE FOUNDED ON PRINCIPLES OF JUSTICE APPLICABLE TO
INDIVIDUALS, ARE TO BE RELAXED ONLY IN RESPONSE TO SOME PERSUASIVE
DEMAND OF PUBLIC POLICY GENERATED BY THE NATURE OF THE SUITOR OR OF THE
CLAIM WHICH IT ASSERTS.  THAT THIS IS THE GUIDING PRINCIPLE
SUFFICIENTLY APPEARS IN THE MANY INSTANCES IN WHICH COURTS HAVE
NARROWLY RESTRICTED THE APPLICATION OF THE RULE NULLUM TEMPUS IN THE
CASE OF THE DOMESTIC SOVEREIGN.  FN3 IT LIKEWISE APPEARS FROM THOSE
CASES WHICH JUSTIFY THE RULE AS APPLIED TO THE UNITED STATES SUING IN A
STATE COURT, ON THE GROUND THAT IT IS SOVEREIGN WITHIN THE STATE AND
THAT INVOCATION OF THE RULE NULLUM TEMPUS PROTECTS THE PUBLIC INTEREST
THERE AS WELL AS IN EVERY OTHER STATE.  UNITED STATES V. BEEBE, 127
U.S. 338; SWEARINGEN V. UNITED STATES, 11 GILL.  & J. 373; MCNAMEE V.
UNITED STATES, 11 ARK. 148; CF. UNITED STATES V. CALIFORNIA, 297 U.S.
175, 186. 

WE ARE UNABLE TO DISCERN IN THE CASE WHERE A FOREIGN SOVEREIGN, BY
SUIT, SEEKS JUSTICE ACCORDING TO THE LAW OF THE FORUM, ANY OF THE
CONSIDERATIONS OF PUBLIC POLICY WHICH SUPPORT THE APPLICATION OF THE
RULE NULLUM TEMPUS TO A DOMESTIC SOVEREIGN.  THE STATUTE OF LIMITATIONS
IS A STATUTE OF REPOSE, DESIGNED TO PROTECT THE CITIZENS FROM STALE AND
VEXATIOUS CLAIMS, AND TO MAKE AN END TO THE POSSIBILITY OF LITIGATION
AFTER THE LAPSE OF A REASONABLE TIME.  IT HAS LONG BEEN REGARDED BY
THIS COURT AND BY THE COURTS OF NEW YORK AS A MERITORIOUS DEFENSE, IN
ITSELF SERVING A PUBLIC INTEREST.  BELL V. MORRISON, 1 PET. 351, 360;
M'CLUNY V. SILLIMAN, 3 PET. 270, 278; CAMPBELL V. HAVERHILL, 155 U.S.
610, 617; UNITED STATES V. OREGON LUMBER CO., 260 U.S. 290; BROOKLYN
BANK V. BARNABY, 197 N.Y. 210, 227; 90 N.E. 834; SCHMIDT V. MERCHANTS
DESPATCH TRANSPORTATION CO., 270 N.Y. 287, 302; 200 N.E. 824.  DENIAL
OF ITS PROTECTION AGAINST THE DEMAND OF THE DOMESTIC SOVEREIGN IN THE
INTEREST OF THE DOMESTIC COMMUNITY OF WHICH THE DEBTOR IS A PART COULD
HARDLY BE THOUGHT TO ARGUE FOR A LIKE SURRENDER OF THE LOCAL INTEREST
IN FAVOR OF A FOREIGN SOVEREIGN AND THE COMMUNITY WHICH IT REPRESENTS. 
WE CANNOT SAY THAT THE PUBLIC INTEREST OF THE FORUM GOES SO FAR.    WE
LAY ASIDE QUESTIONS NOT PRESENTED HERE WHICH MIGHT ARISE IF THE
NATIONAL GOVERNMENT, IN THE CONDUCT OF ITS FOREIGN AFFAIRS, BY TREATY
OR OTHER APPROPRIATE ACTION, SHOULD UNDERTAKE TO RESTRICT THE
APPLICATION OF LOCAL STATUTES OF LIMITATIONS AGAINST FOREIGN
GOVERNMENTS, OR IF THE STATES IN ENACTING THEM SHOULD DISCRIMINATE
AGAINST SUITS BROUGHT BY A FOREIGN GOVERNMENT.  WE DECIDE ONLY THAT IN
THE ABSENCE OF SUCH ACTION THE LIMITATION STATUTES OF THE FORUM RUN
AGAINST A FOREIGN GOVERNMENT SEEKING A REMEDY AFFORDED BY THE FORUM, AS
THEY RUN AGAINST PRIVATE LITIGANTS. 

SECOND.  RESPONDENT, RELYING ON THE NEW YORK RULES THAT THE STATUTE
OF LIMITATIONS DOES NOT RUN AGAINST A SUIT TO RECOVER A BANK ACCOUNT
UNTIL LIABILITY UPON IT IS REPUDIATED, TILLMAN V. GUARANTY TRUST CO.,
253 N.Y. 295; 171 N.E. 61, AND THAT THE STATUTE OF LIMITATIONS DOES NOT
RUN AGAINST A PLAINTIFF WHO HAS NO FORUM IN WHICH TO ASSERT HIS RIGHTS,
OSWEGO & SYRACUSE R. CO. V. STATE, 226 N.Y. 351, 359, 362; 124 N.E. 8;
CAYUGA COUNTY V. STATE, 153 N.Y. 279, 291; 47 N.E. 288; PARMENTER V.
STATE, 135 N.Y. 154, 163; 31 N.E. 1035, ARGUES THAT UNTIL RECOGNITION
OF THE SOVIET GOVERNMENT THERE WAS NO PERSON TO WHOM NOTICE OF
PETITIONER'S REPUDIATION COULD BE GIVEN AND NO COURT IN WHICH SUIT
COULD BE MAINTAINED TO RECOVER THE DEPOSIT. 

IT IS NOT DENIED THAT, IN CONFORMITY TO GENERALLY ACCEPTED
PRINCIPLES, THE SOVIET GOVERNMENT COULD NOT MAINTAIN A SUIT IN OUR
COURTS BEFORE ITS RECOGNITION BY THE POLITICAL DEPARTMENT OF THE
GOVERNMENT.  FOR THIS REASON ACCESS TO THE FEDERAL AND STATE COURTS WAS
DENIED TO THE SOVIET GOVERNMENT BEFORE RECOGNITION.  THE PENZA, 277
FED. 91; THE ROGDAI, 278 FED. 294; RUSSIAN S.F.S. REPUBLIC V. CIBRARIO,
235 N.Y. 255; PREOBAZHENSKI V. CIBRARIO, 192 N.Y. SUPP. 275.  BUT THE
ARGUMENT IGNORES THE PRINCIPLE CONTROLLING HERE AND RECOGNIZED BY THE
COURTS OF NEW YORK THAT THE RIGHTS OF A SOVEREIGN STATE ARE VESTED IN
THE STATE RATHER THAN IN ANY PARTICULAR GOVERNMENT WHICH MAY PURPORT TO
REPRESENT IT, THE SAPPHIRE, SUPRA, 168, AND THAT SUIT IN ITS BEHALF MAY
BE MAINTAINED IN OUR COURTS ONLY BY THAT GOVERNMENT WHICH HAS BEEN
RECOGNIZED BY THE POLITICAL DEPARTMENT OF OUR OWN GOVERNMENT AS THE
AUTHORIZED GOVERNMENT OF THE FOREIGN STATE.  JONES V. UNITED STATES,
137 U.S. 202, 212; RUSSIAN GOVERNMENT V. LEHIGH VALLEY R. CO., 293 FED.
133, 135, AFF'D SUB NOM. LEHIGH VALLEY R. CO. V. STATE OF RUSSIA, 21
F.(2D) 396, 409; MATTER OF LEHIGH VALLEY R. CO., 265 U.S. 573; RUSSIAN
S.F.S. REPUBLIC V. CIBRARIO, SUPRA; MOORE, INTERNATIONAL LAW DIGEST,
SECS. 75, 78. 

WHAT GOVERNMENT IS TO BE REGARDED HERE AS REPRESENTATIVE OF A FOREIGN
SOVEREIGN STATE IS A POLITICAL RATHER THAN A JUDICIAL QUESTION, AND IS
TO BE DETERMINED BY THE POLITICAL DEPARTMENT OF THE GOVERNMENT. 
OBJECTIONS TO ITS DETERMINATION AS WELL AS TO THE UNDERLYING POLICY ARE
TO BE ADDRESSED TO IT AND NOT TO THE COURTS.  ITS ACTION IN RECOGNIZING
A FOREIGN GOVERNMENT AND IN RECEIVING ITS DIPLOMATIC REPRESENTATIVES IS
CONCLUSIVE ON ALL DOMESTIC COURTS, WHICH ARE BOUND TO ACCEPT THAT
DETERMINATION, ALTHOUGH THEY ARE FREE TO DRAW FOR THEMSELVES ITS LEGAL
CONSEQUENCES IN LITIGATIONS PENDING BEFORE THEM.  JONES V. UNITED
STATES, SUPRA, 212; AGENCY OF CANADIAN CAR & F. CO. V. AMERICAN CAN
CO., 258 FED. 363; LEHIGH VALLEY R. CO. V. STATE OF RUSSIA, SUPRA. 

WE ACCEPT AS CONCLUSIVE HERE THE DETERMINATION OF OUR OWN STATE
DEPARTMENT THAT THE RUSSIAN STATE WAS REPRESENTED BY THE PROVISIONAL
GOVERNMENT THROUGH ITS DULY RECOGNIZED REPRESENTATIVES FROM MARCH 16,
1917 TO NOVEMBER 16, 1933, WHEN THE SOVIET GOVERNMENT WAS RECOGNIZED. 
FN4  THERE WAS AT ALL TIMES DURING THAT PERIOD A RECOGNIZED DIPLOMATIC
REPRESENTATIVE OF THE RUSSIAN STATE TO WHOM NOTICE CONCERNING ITS
INTERESTS WITHIN THE UNITED STATES COULD BE COMMUNICATED, AND TO WHOM
OUR COURTS WERE OPEN FOR THE PURPOSE OF PROSECUTING SUITS IN BEHALF OF
THE RUSSIAN STATE.  IN FACT, DURING THAT PERIOD SUITS WERE BROUGHT IN
ITS BEHALF IN BOTH THE FEDERAL AND STATE COURTS, WHICH CONSISTENTLY
RULED THAT THE RECOGNIZED AMBASSADOR AND FINANCIAL ATTACHE WERE
AUTHORIZED TO MAINTAIN THEM.  FN5 

WE DO NOT STOP TO INQUIRE WHAT THE "ACTUAL" AUTHORITY OF THOSE
DIPLOMATIC REPRESENTATIVES MAY HAVE BEEN.  WHEN THE QUESTION IS OF THE
RUNNING OF THE STATUTE OF LIMITATIONS, IT IS ENOUGH THAT OUR COURTS
HAVE BEEN OPEN TO SUIT ON BEHALF OF THE RUSSIAN STATE IN WHOM THE RIGHT
TO SUE UPON THE PETITIONER'S PRESENT CLAIM WAS VESTED, AND THAT THE
POLITICAL DEPARTMENT OF THE GOVERNMENT HAS ACCORDED RECOGNITION TO A
GOVERNMENT OF THAT STATE, RECEIVED ITS DIPLOMATIC REPRESENTATIVES, AND
EXTENDED TO THEM THE PRIVILEGE OF MAINTAINING SUIT IN OUR COURTS IN
BEHALF OF THEIR STATE.  THE RIGHT AND OPPORTUNITY TO SUE UPON THE CLAIM
AGAINST PETITIONER WAS NOT SUSPENDED; AND NOTICE OF REPUDIATION OF THE
LIABILITY GIVEN TO THE DULY RECOGNIZED DIPLOMATIC REPRESENTATIVES MUST,
SO FAR AS OUR OWN COURTS ARE CONCERNED, BE TAKEN AS NOTICE TO THE STATE
WHICH THEY REPRESENTED. 

THE GOVERNMENT ARGUES THAT RECOGNITION OF THE SOVIET GOVERNMENT, AN
ACTION WHICH FOR MANY PURPOSES VALIDATED HERE THAT GOVERNMENT'S
PREVIOUS ACTS WITHIN ITS OWN TERRITORY, SEE UNDERHILL V. HERNANDEZ, 168
U.S. 250; OETJEN V. CENTRAL LEATHER CO., 246 U.S. 297; RICAUD V.
AMERICAN METAL CO., 246 U.S. 304; UNITED STATES V. BELMONT, 301 U.S.
324; DOUGHERTY V. EQUITABLE LIFE ASSURANCE SOCIETY, 266 N.Y. 71, 84,
85; 193 N.E. 897; LUTHER V. SAGOR & CO., (1921) 3 K.B.D. 532, OPERATES
TO SET AT NAUGHT ALL THE LEGAL CONSEQUENCES OF THE PRIOR RECOGNITION BY
THE UNITED STATES OF THE PROVISIONAL GOVERNMENT AND ITS
REPRESENTATIVES, AS THOUGH SUCH RECOGNITION HAD NEVER BEEN ACCORDED. 
THIS IS TANTAMOUNT TO SAYING THAT THE JUDGMENTS IN SUITS MAINTAINED
HERE BY THE DIPLOMATIC REPRESENTATIVES OF THE PROVISIONAL GOVERNMENT,
VALID WHEN RENDERED, BECAME INVALID UPON RECOGNITION OF THE SOVIET
GOVERNMENT.  THE ARGUMENT THUS IGNORES THE DISTINCTION BETWEEN THE
EFFECT OF OUR RECOGNITION OF A FOREIGN GOVERNMENT WITH RESPECT TO ITS
ACTS WITHIN ITS OWN TERRITORY PRIOR TO RECOGNITION, AND THE EFFECT UPON
PREVIOUS TRANSACTIONS CONSUMMATED HERE BETWEEN ITS PREDECESSOR AND OUR
OWN NATIONALS.  THE ONE OPERATES ONLY TO VALIDATE TO A LIMITED EXTENT
ACTS OF A DE FACTO GOVERNMENT WHICH BY VIRTUE OF THE RECOGNITION, HAS
BECOME A GOVERNMENT DE JURE.  BUT IT DOES NOT FOLLOW THAT RECOGNITION
RENDERS OF NO EFFECT TRANSACTIONS HERE WITH A PRIOR RECOGNIZED
GOVERNMENT IN CONFORMITY TO THE DECLARED POLICY OF OUR OWN GOVERNMENT. 
THE VERY PURPOSE OF THE RECOGNITION BY OUR GOVERNMENT IS THAT OUR
NATIONALS MAY BE CONCLUSIVELY ADVISED WITH WHAT GOVERNMENT THEY MAY
SAFELY CARRY ON BUSINESS TRANSACTIONS AND WHO ITS REPRESENTATIVES ARE. 
IF THOSE TRANSACTIONS, VALID WHEN ENTERED INTO, WERE TO BE DISREGARDED
AFTER THE LATER RECOGNITION OF A SUCCESSOR GOVERNMENT, RECOGNITION
WOULD BE BUT AN IDLE CEREMONY, YIELDING NONE OF THE ADVANTAGES OF
ESTABLISHED DIPLOMATIC RELATIONS IN ENABLING BUSINESS TRANSACTIONS TO
PROCEED, AND AFFORDING NO PROTECTION TO OUR OWN NATIONALS IN CARRYING
THEM ON. 

SO FAR AS WE ARE ADVISED NO COURT HAS SANCTIONED SUCH A DOCTRINE. 
THE NOTION THAT THE JUDGMENT IN SUITS MAINTAINED BY THE REPRESENTATIVE
OF THE PROVISIONAL GOVERNMENT WOULD NOT BE CONCLUSIVE UPON ALL
SUCCESSOR GOVERNMENTS, WAS CONSIDERED AND REJECTED IN RUSSIAN
GOVERNMENT V. LEHIGH VALLEY R. CO., SUPRA.  AN APPLICATION FOR WRIT OF
PROHIBITION WAS DENIED BY THIS COURT.  265 U.S. 573.  WE CONCLUDE THAT
THE RECOGNITION OF THE SOVIET GOVERNMENT LEFT UNAFFECTED THOSE LEGAL
CONSEQUENCES OF THE PREVIOUS RECOGNITION OF THE PROVISIONAL GOVERNMENT
AND ITS REPRESENTATIVES, WHICH ATTACHED TO ACTION TAKEN HERE PRIOR TO
THE LATER RECOGNITION. 

THIRD.  IF THE CLAIM OF THE RUSSIAN GOVERNMENT WAS BARRED BY
LIMITATION THE UNITED STATES AS ITS ASSIGNEE CAN BE IN NO BETTER
POSITION EITHER BECAUSE OF THE RULE NULLUM TEMPUS OR BY VIRTUE OF THE
TERMS OF THE ASSIGNMENT.  WE NEED WASTE NO TIME ON REFINEMENTS UPON THE
SUGGESTED DISTINCTION BETWEEN RIGHTS AND REMEDIES, FOR WE MAY ASSUME
FOR PRESENT PURPOSES THAT THE UNITED STATES ACQUIRED BY THE ASSIGNMENT
WHATEVER RIGHTS THEN SURVIVED THE RUNNING OF THE STATUTE AGAINST THE
RUSSIAN GOVERNMENT, AND THAT IT MAY ASSERT THOSE RIGHTS SUBJECT TO SUCH
PLEA OF LIMITATIONS AS MAY BE MADE BY PETITIONER. 

AS HAS ALREADY BEEN NOTED, THE RULE NULLUM TEMPUS RESTS ON THE PUBLIC
POLICY OF PROTECTING THE DOMESTIC SOVEREIGN FROM OMISSIONS OF ITS OWN
OFFICERS AND AGENTS WHOSE NEGLECT, THROUGH LAPSE OF TIME, WOULD
OTHERWISE DEPRIVE IT OF RIGHTS.  BUT THE CIRCUMSTANCES OF THE PRESENT
CASE ADMIT OF NO APPEAL TO SUCH A POLICY.  THERE HAS BEEN NO NEGLECT OR
DELAY BY THE UNITED STATES OR ITS AGENTS, AND IT HAS LOST NO RIGHTS BY
ANY LAPSE OF TIME AFTER THE ASSIGNMENT.  THE QUESTION IS WHETHER THE
EXEMPTION OF THE UNITED STATES FROM THE CONSEQUENCES OF THE NEGLECT OF
ITS OWN AGENTS IS ENOUGH TO RELIEVE IT FROM THE CONSEQUENCES OF THE
RUSSIAN GOVERNMENT'S FAILURE TO PROSECUTE THE CLAIM.  PROOF, UNDER A
PLEA OF LIMITATION, THAT THE SIX-YEAR STATUTORY PERIOD HAD RUN BEFORE
THE ASSIGNMENT OFFENDS AGAINST NO POLICY OF PROTECTING THE DOMESTIC
SOVEREIGN.  IT DEPRIVES THE UNITED STATES OF NO RIGHT, FOR THE PROOF
DEMONSTRATES THAT THE UNITED STATES NEVER ACQUIRED A RIGHT FREE OF A
PREEXISTING INFIRMITY, THE RUNNING OF LIMITATIONS AGAINST ITS ASSIGNOR,
WHICH PUBLIC POLICY DOES NOT FORBID.  UNITED STATES V. BUFORD, 3 PET.
12, 30; KING V. MORRALL, 6 PRICE 24, 28, 30. 

ASSUMING THAT THE RESPECTIVE RIGHTS OF PETITIONER AND THE SOVIET
GOVERNMENT COULD HAVE BEEN ALTERED AND THAT PETITIONER'S RIGHT TO PLEAD
THE STATUTE OF LIMITATIONS CURTAILED BY FORCE OF AN EXECUTIVE AGREEMENT
BETWEEN THE PRESIDENT AND THE SOVIET GOVERNMENT, WE CAN FIND NOTHING IN
THE AGREEMENT AND ASSIGNMENT OF NOVEMBER 16, 1933, WHICH PURPORTS TO
ENLARGE THE ASSIGNED RIGHTS IN THE HANDS OF THE UNITED STATES, OR TO
FREE IT FROM THE CONSEQUENCES OF THE FAILURE OF THE RUSSIAN GOVERNMENT
TO PROSECUTE ITS CLAIM WITHIN THE STATUTORY PERIOD. 

THE AGREEMENT AND ASSIGNMENT ARE EMBODIED IN A LETTER OF MR.
LITVINOV, PEOPLE'S COMMISSAR OF FOREIGN AFFAIRS OF THE SOVIET
GOVERNMENT, TO THE PRESIDENT AND THE PRESIDENT'S LETTER OF THE SAME
DATE IN REPLY.  SO FAR AS NOW RELEVANT THE DOCUMENT SIGNED IN BEHALF OF
THE SOVIET GOVERNMENT MAKES MENTION OF "AMOUNTS ADMITTED TO BE DUE OR
THAT MAY BE FOUND TO BE DUE IT AS THE SUCCESSOR OF PRIOR GOVERNMENTS OR
OTHERWISE FROM AMERICAN NATIONALS, INCLUDING CORPORATIONS, COMPANIES,
PARTNERSHIPS OR ASSOCIATIONS."  IT PURPORTS TO "RELEASE AND ASSIGN ALL
SUCH AMOUNTS TO THE GOVERNMENT OF THE UNITED STATES" AND THE SOVIET
GOVERNMENT AGREES, PREPARATORY TO FINAL SETTLEMENT OF CLAIMS BETWEEN IT
AND THE UNITED STATES AND THE CLAIMS OF THEIR NATIONALS, "NOT TO MAKE
ANY CLAIMS WITH RESPECT TO  ...  (B) ACTS DONE OR SETTLEMENTS MADE BY
OR WITH THE GOVERNMENT OF THE UNITED STATES, OR PUBLIC OFFICIALS OF THE
UNITED STATES, OR ITS NATIONALS, RELATING TO PROPERTY, CREDITS, OR
OBLIGATIONS OF ANY GOVERNMENT OF RUSSIA OR NATIONALS THEREOF."  THE
RELEVANT PORTION OF THE DOCUMENT SIGNED BY THE PRESIDENT IS EXPRESSED
IN THE FOLLOWING PARAGRAPH: 

"I AM GLAD TO HAVE THESE UNDERTAKINGS BY YOUR GOVERNMENT AND I SHALL
BE PLEASED TO NOTIFY YOUR GOVERNMENT IN EACH CASE OF ANY AMOUNT
REALIZED BY THE GOVERNMENT OF THE UNITED STATES FROM THE RELEASE AND
ASSIGNMENT TO IT OF THE AMOUNTS ADMITTED TO BE DUE, OR THAT MAY BE
FOUND TO BE DUE." 

THERE IS NOTHING IN EITHER DOCUMENT TO SUGGEST THAT THE UNITED STATES
WAS TO ACQUIRE OR EXERT ANY GREATER RIGHTS THAN ITS TRANSFEROR OR THAT
THE PRESIDENT BY MERE EXECUTIVE ACTION PURPORTED OR INTENDED TO ALTER
OR DIMINISH THE RIGHTS OF THE DEBTOR WITH RESPECT TO ANY ASSIGNED
CLAIMS, OR THAT THE UNITED STATES, AS ASSIGNEE, IS TO DO MORE THAN THE
SOVIET GOVERNMENT COULD HAVE DONE AFTER DIPLOMATIC RECOGNITION - THAT
IS, COLLECT THE CLAIMS IN CONFORMITY TO LOCAL LAW.  EVEN THE LANGUAGE
OF A TREATY WHEREVER REASONABLY POSSIBLE WILL BE CONSTRUED SO AS NOT TO
OVERRIDE STATE LAWS OR TO IMPAIR RIGHTS ARISING UNDER THEM.  UNITED
STATES V. ARREDONDO, 6 PET. 691, 748; HAVER V. YAKER, 9 WALL.  32, 34;
DOOLEY V. UNITED STATES, 182 U.S. 222, 230; NIELSEN V. JOHNSON, 279
U.S. 47, 52; TODOK V. UNION STATE BANK, 281 U.S. 449, 454.  THE
ASSIGNMENT LEFT UNAFFECTED THE RIGHT OF PETITIONER TO SET UP AGAINST
THE UNITED STATES THE PREVIOUS RUNNING OF THE STATUTE OF LIMITATIONS. 

FOURTH.  RESPONDENT ASSAILS THE FINDING OF THE DISTRICT COURT THAT
THERE WAS AN UNQUALIFIED REPUDIATION BY PETITIONER OF ITS LIABILITY ON
THE ACCOUNT, AND IN SUPPORT OF ITS CONTENTION PRESENTS AN ELABORATE
REVIEW OF THE EVIDENCE.  THE EVIDENCE IS SAID TO ESTABLISH THAT
PETITIONER'S ALLEGED REPUDIATION WAS TENTATIVE AND CONDITIONAL, TO
AWAIT NEGOTIATIONS WITH A STABLE RUSSIAN GOVERNMENT UPON ITS
RECOGNITION BY THE UNITED STATES.  IF THIS CONTENTION BE REJECTED,
RESPONDENT INSISTS THAT AT LEAST THERE IS A CONFLICT IN THE EVIDENCE
AND IN THE INFERENCES WHICH MAY BE DRAWN FROM IT WHICH, UNDER THE LOCAL
PRACTICE, SHOULD HAVE BEEN RESOLVED BY A FULL TRIAL RATHER THAN
SUMMARILY ON MOTION.  AS THESE QUESTIONS WERE NOT PASSED ON BY THE
COURT OF APPEALS, THE CASE WILL BE REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED.    FN1  UNITED
STATES V. KNIGHT, 14 PET. 301, 315; GIBSON V. CHOUTEAU, 13 WALL.  92,
99; UNITED STATES V. THOMPSON, 98 U.S. 486, 490; FINK V. O'NEIL, 106
U.S. 272, 281. 

FN2  A FOREIGN SOVEREIGN AS SUITOR IS SUBJECT TO THE LOCAL RULES OF
THE DOMESTIC FORUM AS TO COSTS, REPUBLIC OF HONDURAS V. SOTO, 112 N.Y.
310; 19 N.E. 845; EMPEROR OF BRAZIL V. ROBINSON, 5 DOWL.  PR. 522;
OTHO, KING OF GREECE, V. WRIGHT, 6 DOWL.  PR. 12; THE BEATRICE, 36 L.J.
REP. ADM. (N.S.)  10; QUEEN OF HOLLAND V. DRUKKER, (1928) CH. 877, 884,
ALTHOUGH THE LOCAL SOVERIGN DOES NOT PAY COSTS.  UNITED STATES V.
VERDIER, 164 U.S. 213, 219.  THE FOREIGN SOVEREIGN SUING AS A PLAINTIFF
MUST GIVE DISCOVERY.  ROTHSCHILD V. QUEEN OF PORTUGAL, 3 Y. & C. EX.
594, 596; UNITED STATES V. WAGNER, L.R. 2 CH. APP. 582, 592, 595;
PRIOLEAU V. UNITED STATES, L.R. 2 EQ. 659.  A FOREIGN SOVEREIGN
PLAINTIFF "SHOULD SO FAR AS THE THING CAN BE DONE BE PUT IN THE SAME
POSITION AS A BODY CORPORATE."  REPUBLIC OF COSTA RICA V. ERLANGER,
L.R. 1 CH. D. 171, 174; REPUBLIC OF PERU V. WEGUELIN, L.R. 20 EQ. 140,
141; CF. KING OF SPAIN V. HULLETT, 7 BLIGH N.S. 359, 392. 

FN3 THE PRESUMPTION OF A GRANT BY LAPSE OF TIME WILL BE INDULGED
AGAINST THE DOMESTIC SOVEREIGN.  UNITED STATES V. CHAVES, 159 U.S. 452,
464.  THE RULE NULLUM TEMPUS HAS NEVER BEEN EXTENDED TO AGENCIES OR
GRANTEES OF THE LOCAL SOVEREIGN SUCH AS MUNICIPALITIES, COUNTY BOARDS,
SCHOOL DISTRICTS AND THE LIKE.  METROPOLITAN R. CO. V. DISTRICT OF
COLUMBIA, 132 U.S. 1; BOONE COUNTY V. BURLINGTON & MISSOURI RIVER R.
CO., 139 U.S. 684, 693.  IT HAS BEEN HELD NOT TO RELIEVE THE SOVEREIGN
FROM GIVING THE NOTICE REQUIRED BY LOCAL LAW TO CHARGE ENDORSERS OF
NEGOTIABLE PAPER, UNITED STATES V. BARKER, 12 WHEAT.  559; CF. COOKE V.
UNITED STATES, 91 U.S. 389, 398; WILBER NATIONAL BANK V. UNITED STATES,
294 U.S. 120, 124, AND IN TAX CASES HAS BEEN NARROWLY CONSTRUED AGAINST
THE DOMESTIC SOVEREIGN.  BOWERS V. NEW YORK & ALBANY LIGHTERAGE CO. 273
U.S. 346, 350.  COMPARE UNITED STATES V. KNIGHT, 14 PET. 301; FINK V.
O'NEIL, 106 U.S. 272. 

FN4  THE UNITED STATES ACCORDED RECOGNITION TO THE PROVISIONAL
GOVERNMENT MARCH 16, 1917 AND CONTINUED TO RECOGNIZE IT UNTIL NOVEMBER
16, 1933, WHEN THE SOVIET GOVERNMENT WAS RECOGNIZED.  DURING THAT
PERIOD THE UNITED STATES DECLINED TO RECOGNIZE THE SOVIET GOVERNMENT OR
TO RECEIVE ITS ACCREDITED REPRESENTATIVE, AND SO CERTIFIED IN
LITIGATIONS PENDING IN THE FEDERAL COURTS.  THE PENZA, SUPRA; THE
ROGDAI, SUPRA.  IT RECOGNIZED MR. BAKHMETEFF AS RUSSIAN AMBASSADOR FROM
JULY 5, 1917 UNTIL JUNE 30, 1922, WHEN HE RETIRED, HAVING DESIGNATED
MR. UGHET AS CUSTODIAN OF RUSSIAN PROPERTY IN THE UNITED STATES.  MR.
UGHET, AFTER HIS APPOINTMENT AS FINANCIAL ATTACHE APRIL 7, 1917,
CONTINUED TO BE RECOGNIZED AS SUCH BY THE UNITED STATES UNTIL NOVEMBER
16, 1933.  HE WAS RECOGNIZED BY THE UNITED STATES AS CHARGE D'AFFAIRES
AD INTERIM, DURING THE ABSENCE OF THE AMBASSADOR FROM DECEMBER 3, 1918
TO JULY 31, 1919.  THEIR DIPLOMATIC STATUS AS STATED WAS CERTIFIED IN
THE PRESENT SUIT BY THE SECRETARY OF STATE, WHO STATED THAT HE
CONSIDERED MR. UGHET'S STATUS UNAFFECTED BY THE TERMINATION OF THE
AMBASSADOR'S DUTIES. 

THEIR STATUS WAS CERTIFIED TO BY THE DEPARTMENT ON OCTOBER 31, 1918
AND JULY 2, 1919, RESPECTIVELY, IN RUSSIAN GOVERNMENT V. LEHIGH VALLEY
R. CO., 293 FED. 133.  MR. BAKHMETEFF'S STATUS AS AMBASSADOR WAS
CERTIFIED MAY 18, 1919 IN AGENCY OF CANADIAN CAR & FOUNDRY CO. V.
AMERICAN CAN CO., 258 FED. 363, 368; ON APRIL 6, 1920 IN THE ROGDAI,
278 FED. 294, 295; ON JUNE 24, 1919 IN THE PENZA, 277 FED. 91, 93. 
CERTIFICATE WITH RESPECT TO BOTH MR. BAKHMETEFF AND MR. UGHET WAS GIVEN
FEBRUARY 19, 1923 AND WITH RESPECT TO MR. UGHET DECEMBER 22, 1927.  ON
THE FAITH OF THE TWO LAST MENTIONED CERTIFICATES THE COURT, IN THE
LEHIGH VALLEY RAILROAD CASE, SUPRA, AS STATED BY THE GOVERNMENT'S BRIEF
IN THE PRESENT CASE, ORDERED TO BE PAID TO MR. UGHET APPROXIMATELY
$1,000,000, OF WHICH MORE THAN $700,000 WAS PAID TO THE UNITED STATES
TREASURER "ON ACCOUNT OF INTEREST DUE ON OBLIGATIONS OF THE PROVISIONAL
GOVERNMENT OF RUSSIA BY THE TREASURER." 

FN5  RUSSIAN GOVERNMENT V. LEHIGH VALLEY R. CO., 293 FED. 133; 293
FED. 135, AFF'D 21 F.(2D) 396; STATE OF RUSSIA V. BANKERS' TRUST CO., 4
F.SUPP.  417, 419, AFF'D 83 F.(2D) 236.  SEE ALSO AGENCY OF CANADIAN
CAR & FOUNDRY CO. V. AMERICAN CAN CO., 258 FED. 363. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :





U.S. V. CAROLENE PRODUCTS CO., 304 U.S. 144 


NO. 640.  ARGUED APRIL 6, 1938.  - DECIDED APRIL 25, 1938.  - 7 F.SUPP. 
500, REVERSED. 


THE FILLED MILK ACT OF CONGRESS OF MAR. 4, 1923, DEFINES THE TERM
FILLED MILK AS MEANING ANY MILK, CREAM, OR SKIMMED MILK, WHETHER OR NOT
CONDENSED OR DRIED, ETC., TO WHICH HAS BEEN ADDED, OR WHICH HAS BEEN
BLENDED OR COMPOUNDED WITH, ANY FAT OR OIL OTHER THAN MILK FAT, SO THAT
THE RESULTING PRODUCT IS IN IMITATION OR SEMBLANCE OF MILK, CREAM, OR
SKIMMED MILK, WHETHER OR NOT CONDENSED, DRIED, ETC.; IT DECLARES THAT
FILLED MILK, AS SO DEFINED, "IS AN ADULTERATED ARTICLE OF FOOD,
INJURIOUS TO THE PUBLIC HEALTH, AND ITS SALE CONSTITUTES A FRAUD UPON
THE PUBLIC"; AND IT FORBIDS AND PENALIZES THE SHIPMENT OF SUCH FILLED
MILK IN INTERSTATE COMMERCE.  DEFENDANT WAS INDICTED FOR SHIPPING
INTERSTATE CERTAIN PACKAGES OF AN ARTICLE DESCRIBED IN THE INDICTMENT
AS A COMPOUND OF CONDENSED SKIMMED MILK AND COCONUT OIL MADE IN THE
IMITATION OR SEMBLANCE OF CONDENSED MILK OR CREAM, AND FURTHER
CHARACTERIZED BY THE INDICTMENT, IN THE WORDS OF THE STATUTE, AS "AN
ADULTERATED ARTICLE OF FOOD, INJURIOUS TO THE PUBLIC HEALTH."  HELD: 

1.  THAT UPON ITS FACE, AND AS SUPPORTED BY JUDICIAL KNOWLEDGE,
INCLUDING FACTS FOUND IN THE REPORTS OF THE CONGRESSIONAL COMMITTEES,
THE ACT IS PRESUMPTIVELY WITHIN THE SCOPE OF THE POWER TO REGULATE
INTERSTATE COMMERCE AND CONSISTENT WITH DUE PROCESS.  DEMURRER TO THE
INDICTMENT SHOULD HAVE BEEN OVERRULED.  HEBE CO. V. SHAW, 248 U.S.
297.  P. 147. 

2.  IT IS NO VALID OBJECTION THAT THE PROHIBITION OF THE ACT DOES NOT
EXTEND TO OLEOMARGARINE OR OTHER BUTTER SUBSTITUTES IN WHICH VEGETABLE
FATS OR OILS REPLACE BUTTER.  P. 151. 

3.  THE STATUTORY CHARACTERIZATION OF FILLED MILK AS INJURIOUS TO
HEALTH AND AS A FRAUD UPON THE PUBLIC MAY, FOR THE PURPOSES OF THIS
CASE, BE CONSIDERED AS A DECLARATION OF LEGISLATIVE FINDINGS DEEMED TO
SUPPORT THE ACT AS A CONSTITUTIONAL EXERTION OF THE LEGISLATIVE POWER,
AIDING INFORMED JUDICIAL REVIEW BY REVEALING THE RATIONALE OF THE
LEGISLATION, AS DO THE REPORTS OF LEGISLATIVE COMMITTEES.  P. 152. 

UNITED STATES V. CAROLENE PRODUCTS CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF ILLINOIS. 

APPEAL UNDER THE CRIMINAL APPEALS ACT FROM A JUDGMENT SUSTAINING A
DEMURRER TO AN INDICTMENT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE "FILLED MILK ACT" OF
CONGRESS OF MARCH 4, 1923(C. 262, 42 STAT. 1486, 21 U.S.C. SECS. 61
63),  FN1  WHICH PROHIBITS THE SHIPMENT IN INTERSTATE COMMERCE OF
SKIMMED MILK COMPOUNDED WITH ANY FAT OR OIL OTHER THAN MILK FAT, SO AS
TO RESEMBLE MILK OR CREAM, TRANSCENDS THE POWER OF CONGRESS TO REGULATE
INTERSTATE COMMERCE OR INFRINGES THE FIFTH AMENDMENT. 

APPELLEE WAS INDICTED IN THE DISTRICT COURT FOR SOUTHERN ILLINOIS FOR
VIOLATION OF THE ACT BY THE SHIPMENT IN INTERSTATE COMMERCE OF CERTAIN
PACKAGES OF "MILNUT," A COMPOUND OF CONDENSED SKIMMED MILK AND COCONUT
OIL MADE IN IMITATION OR SEMBLANCE OF CONDENSED MILK OR CREAM.  THE
INDICTMENT STATES, IN THE WORDS OF THE STATUTE, THAT MILNUT "IS AN
ADULTERATED ARTICLE OF FOOD, INJURIOUS TO THE PUBLIC HEALTH," AND THAT
IT IS NOT A PREPARED FOOD PRODUCT OF THE TYPE EXCEPTED FROM THE
PROHIBITION OF THE ACT.  THE TRIAL COURT SUSTAINED A DEMURRER TO THE
INDICTMENT ON THE AUTHORITY OF AN EARLIER CASE IN THE SAME COURT,
UNITED STATES V. CAROLENE PRODUCTS CO., 7 F.SUPP.  500.  THE CASE WAS
BROUGHT HERE ON APPEAL UNDER THE CRIMINAL APPEALS ACT OF MARCH 2, 1907,
34 STAT. 1246, 18 U.S. C. SEC. 682.  THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT HAS MEANWHILE, IN ANOTHER CASE, UPHELD THE FILLED MILK
ACT AS AN APPROPRIATE EXERCISE OF THE COMMERCE POWER IN CAROLENE
PRODUCTS CO. V. EVAPORATED MILK ASSN., 93 F.(2D) 202. 

APPELLEE ASSAILS THE STATUTE AS BEYOND THE POWER OF CONGRESS OVER
INTERSTATE COMMERCE, AND HENCE AN INVASION OF A FIELD OF ACTION SAID TO
BE RESERVED TO THE STATES BY THE TENTH AMENDMENT.  APPELLEE ALSO
COMPLAINS THAT THE STATUTE DENIES TO IT EQUAL PROTECTION OF THE LAWS
AND, IN VIOLATION OF THE FIFTH AMENDMENT, DEPRIVES IT OF ITS PROPERTY
WITHOUT DUE PROCESS OF LAW, PARTICULARLY IN THAT THE STATUTE PURPORTS
TO MAKE BINDING AND CONCLUSIVE UPON APPELLEE THE LEGISLATIVE
DECLARATION THAT APPELLEE'S PRODUCT "IS AN ADULTERATED ARTICLE OF FOOD
INJURIOUS TO THE PUBLIC HEALTH AND ITS SALE CONSTITUTES A FRAUD ON THE
PUBLIC." 

FIRST.  THE POWER TO REGULATE COMMERCE IS THE POWER "TO PRESCRIBE THE
RULE BY WHICH COMMERCE IS TO BE GOVERNED," GIBBONS V. OGDEN, 9 WHEAT. 
1, 196, AND EXTENDS TO THE PROHIBITION OF SHIPMENTS IN SUCH COMMERCE. 
REID V. COLORADO, 187 U.S. 137; LOTTERY CASE, 188 U.S. 321; UNITED
STATES V. DELAWARE & HUDSON CO., 213 U.S. 366; HOPE V. UNITED STATES,
227 U.S. 308; CLARK DISTILLING CO. V. WESTERN MARYLAND R. CO., 242 U.S.
311; UNITED STATES V. HILL, 248 U.S. 420; MCCORMICK & CO. V. BROWN, 286
U.S. 131.  THE POWER "IS COMPLETE IN ITSELF, MAY BE EXERCISED TO ITS
UTMOST EXTENT AND ACKNOWLEDGES NO LIMITATIONS OTHER THAN ARE PRESCRIBED
BY THE CONSTITUTION."  GIBBONS V. OGDEN, SUPRA, 196.  HENCE CONGRESS IS
FREE TO EXCLUDE FROM INTERSTATE COMMERCE ARTICLES WHOSE USE IN THE
STATES FOR WHICH THEY ARE DESTINED IT MAY REASONABLY CONCEIVE TO BE
INJURIOUS TO THE PUBLIC HEALTH, MORALS OR WELFARE, REID V. COLORADO,
SUPRA; LOTTERY CASE, SUPRA; HIPOLITE EGG CO. V. UNITED STATES, 220 U.S.
45; HOPE V. UNITED STATES, SUPRA, OR WHICH CONTRAVENE THE POLICY OF THE
STATE OF THEIR DESTINATION.  KENTUCKY WHIP & COLLAR CO. V. ILLINOIS
CENTRAL R. CO., 299 U.S. 334.  SUCH REGULATION IS NOT A FORBIDDEN
INVASION OF STATE POWER EITHER BECAUSE ITS MOTIVE OR ITS CONSEQUENCE IS
TO RESTRICT THE USE OF ARTICLES OF COMMERCE WITHIN THE STATES OF
DESTINATION, AND IS NOT PROHIBITED UNLESS BY THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT.  AND IT IS NO OBJECTION TO THE EXERTION OF THE
POWER TO REGULATE INTERSTATE COMMERCE THAT ITS EXERCISE IS ATTENDED BY
THE SAME INCIDENTS WHICH ATTEND THE EXERCISE OF THE POLICE POWER OF THE
STATES.  SEVEN CASES V. UNITED STATES, 239 U.S. 510, 514; HAMILTON V.
KENTUCKY DISTILLERIES & WAREHOUSE CO., 251 U.S. 146, 156.  THE
PROHIBITION OF THE SHIPMENT OF FILLED MILK IN INTERSTATE COMMERCE IS A
PERMISSIBLE REGULATION OF COMMERCE, SUBJECT ONLY TO THE RESTRICTIONS OF
THE FIFTH AMENDMENT. 

SECOND.  THE PROHIBITION OF SHIPMENT OF APPELLEE'S PRODUCT IN
INTERSTATE COMMERCE DOES NOT INFRINGE THE FIFTH AMENDMENT.  TWENTY
YEARS AGO THIS COURT, IN HEBE CO. V. SHAW, 248 U.S. 297, HELD THAT A
STATE LAW WHICH FORBIDS THE MANUFACTURE AND SALE OF A PRODUCT ASSUMED
TO BE WHOLESOME AND NUTRITIVE, MADE OF CONDENSED SKIMMED MILK,
COMPOUNDED WITH COCONUT OIL, IS NOT FORBIDDEN BY THE FOURTEENTH
AMENDMENT.  THE POWER OF THE LEGISLATURE TO SECURE A MINIMUM OF
PARTICULAR NUTRITIVE ELEMENTS IN A WIDELY USED ARTICLE OF FOOD AND TO
PROTECT THE PUBLIC FROM FRAUDULENT SUBSTITUTIONS, WAS NOT DOUBTED; AND
THE COURT THOUGHT THAT THERE WAS AMPLE SCOPE FOR THE LEGISLATIVE
JUDGMENT THAT PROHIBITION OF THE OFFENDING ARTICLE WAS AN APPROPRIATE
MEANS OF PREVENTING INJURY TO THE PUBLIC. 

WE SEE NO PERSUASIVE REASON FOR DEPARTING FROM THAT RULING HERE,
WHERE THE FIFTH AMENDMENT IS CONCERNED; AND SINCE NONE IS SUGGESTED, WE
MIGHT REST DECISION WHOLLY ON THE PRESUMPTION OF CONSTITUTIONALITY. 
BUT AFFIRMATIVE EVIDENCE ALSO SUSTAINS THE STATUTE.  IN TWENTY YEARS
EVIDENCE HAS STEADILY ACCUMULATED OF THE DANGER TO THE PUBLIC HEALTH
FROM THE GENERAL CONSUMPTION OF FOODS WHICH HAVE BEEN STRIPPED OF
ELEMENTS ESSENTIAL TO THE MAINTENANCE OF HEALTH.  THE FILLED MILK ACT
WAS ADOPTED BY CONGRESS AFTER COMMITTEE HEARINGS, IN THE COURSE OF
WHICH EMINENT SCIENTISTS AND HEALTH EXPERTS TESTIFIED.  AN EXTENSIVE
INVESTIGATION WAS MADE OF THE COMMERCE IN MILK COMPOUNDS IN WHICH
VEGETABLE OILS HAVE BEEN SUBSTITUTED FOR NATURAL MILK FAT, AND OF THE
EFFECT UPON THE PUBLIC HEALTH OF THE USE OF SUCH COMPOUNDS AS A FOOD
SUBSTITUTE FOR MILK.  THE CONCLUSIONS DRAWN FROM EVIDENCE PRESENTED AT
THE HEARINGS WERE EMBODIED IN REPORTS OF THE HOUSE COMMITTEE ON
AGRICULTURE, H.R. NO. 365, 67TH CONG., 1ST SESS., AND THE SENATE
COMMITTEE ON AGRICULTURE AND FORESTRY, SEN. REP. NO. 987, 67TH CONG.,
4TH SESS.  BOTH COMMITTEES CONCLUDED, AS THE STATUTE ITSELF DECLARES,
THAT THE USE OF FILLED MILK AS A SUBSTITUTE FOR PURE MILK IS GENERALLY
INJURIOUS TO HEALTH AND FACILITATES FRAUD ON THE PUBLIC.  FN2 

THERE IS NOTHING IN THE CONSTITUTION WHICH COMPELS A LEGISLATURE,
EITHER NATIONAL OR STATE, TO IGNORE SUCH EVIDENCE, NOR NEED IT
DISREGARD THE OTHER EVIDENCE WHICH AMPLY SUPPORTS THE CONCLUSIONS OF
THE CONGRESSIONAL COMMITTEES THAT THE DANGER IS GREATLY ENHANCED WHERE
AN INFERIOR PRODUCT, LIKE APPELLEE'S, IS INDISTINGUISHABLE FROM A
VALUABLE FOOD OF ALMOST UNIVERSAL USE, THUS MAKING FRAUDULENT
DISTRIBUTION EASY AND PROTECTION OF THE CONSUMER DIFFICULT.  FN3 

HERE THE PROHIBITION OF THE STATUTE IS INOPERATIVE UNLESS THE PRODUCT
IS "IN IMITATION OR SEMBLANCE OF MILK, CREAM, OR SKIMMED MILK, WHETHER
OR NOT CONDENSED."  WHETHER IN SUCH CIRCUMSTANCES THE PUBLIC WOULD BE
ADEQUATELY PROTECTED BY THE PROHIBITION OF FALSE LABELS AND FALSE
BRANDING IMPOSED BY THE PURE FOOD AND DRUGS ACT, OR WHETHER IT WAS
NECESSARY TO GO FARTHER AND PROHIBIT A SUBSTITUTE FOOD PRODUCT THOUGHT
TO BE INJURIOUS TO HEALTH IF USED AS A SUBSTITUTE WHEN THE TWO ARE NOT
DISTINGUISHABLE, WAS A MATTER FOR THE LEGISLATIVE JUDGMENT AND NOT THAT
OF COURTS.  HEBE CO. V. SHAW, SUPRA; SOUTH CAROLINA V. BARNWELL BROS.
INC., 303 U.S. 177.  IT WAS UPON THIS GROUND THAT THE PROHIBITION OF
THE SALE OF OLEOMARGARINE MADE IN IMITATION OF BUTTER WAS HELD NOT TO
INFRINGE THE FOURTEENTH AMENDMENT IN POWELL V. PENNSYLVANIA, 127 U.S.
678; CAPITAL CITY DAIRY CO. V. OHIO, 183 U.S. 238.  COMPARE MCCRAY V.
UNITED STATES, 195 U.S. 27, 63; PURITY EXTRACT & TONIC CO. V. LYNCH,
226 U.S. 192. 

APPELLEE RAISES NO VALID OBJECTION TO THE PRESENT STATUTE BY ARGUING
THAT ITS PROHIBITION HAS NOT BEEN EXTENDED TO OLEOMARGARINE OR OTHER
BUTTER SUBSTITUTES IN WHICH VEGETABLE FATS OR OILS ARE SUBSTITUTED FOR
BUTTER FAT.  THE FIFTH AMENDMENT HAS NO EQUAL PROTECTION CLAUSE, AND
EVEN THAT OF THE FOURTEENTH, APPLICABLE ONLY TO THE STATES, DOES NOT
COMPEL THEIR LEGISLATURES TO PROHIBIT ALL LIKE EVILS, OR NONE.  A
LEGISLATURE MAY HIT AT AN ABUSE WHICH IT HAS FOUND, EVEN THOUGH IT HAS
FAILED TO STRIKE AT ANOTHER.  CENTRAL LUMBER CO. V. SOUTH DAKOTA, 226
U.S. 157, 160; MILLER V. WILSON, 236 U.S. 373, 384; HALL V. GEIGER
JONES CO., 242 U.S. 539, 556; FARMERS & MERCHANTS BANK V. FEDERAL
RESERVE BANK, 262 U.S. 649, 661. 

THIRD.  WE MAY ASSUME FOR PRESENT PURPOSES THAT NO PRONOUNCEMENT OF A
LEGISLATURE CAN FORESTALL ATTACK UPON THE CONSTITUTIONALITY OF THE
PROHIBITION WHICH IT ENACTS BY APPLYING OPPROBRIOUS EPITHETS TO THE
PROHIBITED ACT, AND THAT A STATUTE WOULD DENY DUE PROCESS WHICH
PRECLUDED THE DISPROOF IN JUDICIAL PROCEEDINGS OF ALL FACTS WHICH WOULD
SHOW OR TEND TO SHOW THAT A STATUTE DEPRIVING THE SUITOR OF LIFE,
LIBERTY OR PROPERTY HAD A RATIONAL BASIS. 

BUT SUCH WE THINK IS NOT THE PURPOSE OR CONSTRUCTION OF THE STATUTORY
CHARACTERIZATION OF FILLED MILK AS INJURIOUS TO HEALTH AND AS A FRAUD
UPON THE PUBLIC.  THERE IS NO NEED TO CONSIDER IT HERE AS MORE THAN A
DECLARATION OF THE LEGISLATIVE FINDINGS DEEMED TO SUPPORT AND JUSTIFY
THE ACTION TAKEN AS A CONSTITUTIONAL EXERTION OF THE LEGISLATIVE POWER,
AIDING INFORMED JUDICIAL REVIEW, AS DO THE REPORTS OF LEGISLATIVE
COMMITTEES, BY REVEALING THE RATIONALE OF THE LEGISLATION.  EVEN IN THE
ABSENCE OF SUCH AIDS THE EXISTENCE OF FACTS SUPPORTING THE LEGISLATIVE
JUDGMENT IS TO BE PRESUMED, FOR REGULATORY LEGISLATION AFFECTING
ORDINARY COMMERCIAL TRANSACTIONS IS NOT TO BE PRONOUNCED
UNCONSTITUTIONAL UNLESS IN THE LIGHT OF THE FACTS MADE KNOWN OR
GENERALLY ASSUMED IT IS OF SUCH A CHARACTER AS TO PRECLUDE THE
ASSUMPTION THAT IT RESTS UPON SOME RATIONAL BASIS WITHIN THE KNOWLEDGE
AND EXPERIENCE OF THE LEGISLATORS.  FN4  SEE METROPOLITAN CASUALTY INS.
CO. V. BROWNELL, 294 U.S. 580, 584, AND CASES CITED.  THE PRESENT
STATUTORY FINDINGS AFFECT APPELLEE NO MORE THAN THE REPORTS OF THE
CONGRESSIONAL COMMITTEES; AND SINCE IN THE ABSENCE OF THE STATUTORY
FINDINGS THEY WOULD BE PRESUMED, THEIR INCORPORATION IN THE STATUTE IS
NO MORE PREJUDICIAL THAN SURPLUSAGE. 

WHERE THE EXISTENCE OF A RATIONAL BASIS FOR LEGISLATION WHOSE
CONSTITUTIONALITY IS ATTACKED DEPENDS UPON FACTS BEYOND THE SPHERE OF
JUDICIAL NOTICE, SUCH FACTS MAY PROPERLY BE MADE THE SUBJECT OF
JUDICIAL INQUIRY, BORDEN'S FARM PRODUCTS CO. V. BALDWIN, 293 U.S. 194,
AND THE CONSTITUTIONALITY OF A STATUTE PREDICATED UPON THE EXISTENCE OF
A PARTICULAR STATE OF FACTS MAY BE CHALLENGED BY SHOWING TO THE COURT
THAT THOSE FACTS HAVE CEASED TO EXIST.  CHASTLETON CORPORATION V.
SINCLAIR, 264 U.S. 543.  SIMILARLY WE RECOGNIZE THAT THE
CONSTITUTIONALITY OF A STATUTE, VALID ON ITS FACE, MAY BE ASSAILED BY
PROOF OF FACTS TENDING TO SHOW THAT THE STATUTE AS APPLIED TO A
PARTICULAR ARTICLE IS WITHOUT SUPPORT IN REASON BECAUSE THE ARTICLE,
ALTHOUGH WITHIN THE PROHIBITED CLASS, IS SO DIFFERENT FROM OTHERS OF
THE CLASS AS TO BE WITHOUT THE REASON FOR THE PROHIBITION, RAILROAD
RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330, 349, 351, 352; SEE
WHITNEY V. CALIFORNIA, 274 U.S. 357, 379; CF. MORF V. BINGAMAN, 298
U.S. 407, 413, THOUGH THE EFFECT OF SUCH PROOF DEPENDS ON THE RELEVANT
CIRCUMSTANCES OF EACH CASE, AS FOR EXAMPLE THE ADMINISTRATIVE
DIFFICULTY OF EXCLUDING THE ARTICLE FROM THE REGULATED CLASS. 
CARMICHAEL V. SOUTHERN COAL & COKE CO., 301 U.S. 495, 511-512; SOUTH
CAROLINA V. BARNWELL BROS., 303 U.S. 177, 192-193.  BUT BY THEIR VERY
NATURE SUCH INQUIRIES, WHERE THE LEGISLATIVE JUDGMENT IS DRAWN IN
QUESTION, MUST BE RESTRICTED TO THE ISSUE WHETHER ANY STATE OF FACTS
EITHER KNOWN OR WHICH COULD REASONABLY BE ASSUMED AFFORDS SUPPORT FOR
IT.  HERE THE DEMURRER CHALLENGES THE VALIDITY OF THE STATUTE ON ITS
FACE AND IT IS EVIDENT FROM ALL THE CONSIDERATIONS PRESENTED TO
CONGRESS, AND THOSE OF WHICH WE MAY TAKE JUDICIAL NOTICE, THAT THE
QUESTION IS AT LEAST DEBATABLE WHETHER COMMERCE IN FILLED MILK SHOULD
BE LEFT UNREGULATED, OR IN SOME MEASURE RESTRICTED, OR WHOLLY
PROHIBITED.  AS THAT DECISION WAS FOR CONGRESS, NEITHER THE FINDING OF
A COURT ARRIVED AT BY WEIGHING THE EVIDENCE, NOR THE VERDICT OF A JURY
CAN BE SUBSTITUTED FOR IT.  PRICE V. ILLINOIS, 238 U.S. 446, 452; HEBE
CO. V. SHAW, SUPRA, 303; STANDARD OIL CO. V. MARYSVILLE, 279 U.S. 582,
584; SOUTH CAROLINA V. BARNWELL BROS., INC., SUPRA, 191, CITING
WORCESTER COUNTY TRUST CO. V. RILEY, 302 U.S. 292, 299. 

THE PROHIBITION OF SHIPMENT IN INTERSTATE COMMERCE OF APPELLEE'S
PRODUCT, AS DESCRIBED IN THE INDICTMENT, IS A CONSTITUTIONAL EXERCISE
OF THE POWER TO REGULATE INTERSTATE COMMERCE.  AS THE STATUTE IS NOT
UNCONSTITUTIONAL ON ITS FACE THE DEMURRER SHOULD HAVE BEEN OVERRULED
AND THE JUDGMENT WILL BE REVERSED. 

FN1  THE RELEVANT PORTIONS OF THE STATUTE ARE AS FOLLOWS: 

"SECTION 61.  ...  (C) THE TERM 'FILLED MILK' MEANS ANY MILK, CREAM,
OR SKIMMED MILK, WHETHER OR NOT CONDENSED, EVAPORATED, CONCENTRATED,
POWDERED, DRIED, OR DESICCATED, TO WHICH HAS BEEN ADDED, OR WHICH HAS
BEEN BLENDED OR COMPOUNDED WITH, ANY FAT OR OIL OTHER THAN MILK FAT, SO
THAT THE RESULTING PRODUCT IS IN IMITATION OR SEMBLANCE OF MILK, CREAM,
OR SKIMMED MILK, WHETHER OR NOT CONDENSED, EVAPORATED, CONCENTRATED,
POWDERED, DRIED, OR DESICCATED.  ...    "SECTION 62.  ...  IT IS HEREBY
DECLARED THAT FILLED MILK, AS HEREIN DEFINED, IS AN ADULTERATED ARTICLE
OF FOOD, INJURIOUS TO THE PUBLIC HEALTH, AND ITS SALE CONSTITUTES A
FRAUD UPON THE PUBLIC.  IT SHALL BE UNLAWFUL FOR ANY PERSON TO  ...
SHIP OR DELIVER FOR SHIPMENT IN INTERSTATE OR FOREIGN COMMERCE, ANY
FILLED MILK." 

THAN $1,000 OR IMPRISONMENT OF NOT MORE THAN ONE YEAR, OR BOTH  ...  " 
FN2  THE REPORTS MAY BE SUMMARIZED AS FOLLOWS:  THERE IS AN EXTENSIVE
COMMERCE IN MILK COMPOUNDS MADE OF CONDENSED MILK FROM WHICH THE BUTTER
FAT HAS BEEN EXTRACTED AND AN EQUIVALENT AMOUNT OF VEGETABLE OIL,
USUALLY COCONUT OIL, SUBSTITUTED.  THESE COMPOUNDS RESEMBLE MILK IN
TASTE AND APPEARANCE AND ARE DISTRIBUTED IN PACKAGES RESEMBLING THOSE
IN WHICH PURE CONDENSED MILK IS DISTRIBUTED.  BY REASON OF THE
EXTRACTION OF THE NATURAL MILK FAT THE COMPOUNDED PRODUCT CAN BE
MANUFACTURED AND SOLD AT A LOWER COST THAN PURE MILK.  BUTTER FAT,
WHICH CONSTITUTES AN IMPORTANT PART OF THE FOOD VALUE OF PURE MILK, IS
RICH IN VITAMINS, FOOD ELEMENTS WHICH ARE ESSENTIAL TO PROPER NUTRITION
AND ARE WANTING IN VEGETABLE OILS.  THE USE OF FILLED MILK AS A DIETARY
SUBSTITUTE FOR PURE MILK RESULTS, ESPECIALLY IN THE CASE OF CHILDREN,
IN UNDERNOURISHMENT, AND INDUCES DISEASES WHICH ATTEND MALNUTRITION. 
DESPITE COMPLIANCE WITH THE BRANDING AND LABELING REQUIREMENTS OF THE
PURE FOOD AND DRUGS ACT, THERE IS WIDESPREAD USE OF FILLED MILK AS A
FOOD SUBSTITUTE FOR PURE MILK.  THIS IS AIDED BY THEIR IDENTICAL TASTE
AND APPEARANCE, BY THE SIMILARITY OF THE CONTAINERS IN WHICH THEY ARE
SOLD, BY THE PRACTICE OF DEALERS IN OFFERING THE INFERIOR PRODUCT TO
CUSTOMERS AS BEING AS GOOD AS OR BETTER THAN PURE CONDENSED MILK SOLD
AT A HIGHER PRICE, BY CUSTOMERS' IGNORANCE OF THE RESPECTIVE FOOD
VALUES OF THE TWO PRODUCTS, AND IN MANY SECTIONS OF THE COUNTRY BY
THEIR INABILITY TO READ THE LABELS PLACED ON THE CONTAINERS.  LARGE
AMOUNTS OF FILLED MILK, MUCH OF IT SHIPPED AND SOLD IN BULK, ARE
PURCHASED BY HOTELS AND BOARDING HOUSES, AND BY MANUFACTURERS OF FOOD
PRODUCTS, SUCH AS ICE CREAM, TO WHOSE CUSTOMERS LABELING RESTRICTIONS
AFFORD NO PROTECTION. 

FN3  THERE IS NOW AN EXTENSIVE LITERATURE INDICATING WIDE RECOGNITION
BY SCIENTISTS AND DIETITIANS OF THE GREAT IMPORTANCE TO THE PUBLIC
HEALTH OF BUTTER FAT AND WHOLE MILK AS THE PRIME SOURCE OF VITAMINS,
WHICH ARE ESSENTIAL GROWTH PRODUCING AND DISEASE PREVENTING ELEMENTS IN
THE DIET.  SEE DR. HENRY C. SHERMAN, THE MEANING OF VITAMIN A, IN
SCIENCE, DEC. 21, 1928, P. 619; DR. E. V. MCCOLLUM ET AL., THE NEWER
KNOWLEDGE OF NUTRITION (1929 ED.), PP. 134, 170, 176, 177; DR. A. S.
ROOT, FOOD VITAMINS (N. CAR.  STATE BOARD OF HEALTH, MAY 1931), P. 2;
DR. HENRY C. SHERMAN, CHEMISTRY OF FOOD AND NUTRITION (1932), P. 367;
DR. MARY S. ROSE, THE FOUNDATIONS OF NUTRITION (1933), P. 237. 

WHEN THE FILLED MILK ACT WAS PASSED, ELEVEN STATES HAD RIGIDLY
CONTROLLED THE EXPLOITATION OF FILLED MILK, OR FORBIDDEN IT
ALTOGETHER.  H.R. 365, 67TH CONG., 1ST SESS.  SOME THIRTY-FIVE STATES
HAVE NOW ADOPTED LAWS WHICH IN TERMS, OR BY THEIR OPERATION, PROHIBIT
THE SALE OF FILLED MILK.  ALA. AGRI.  CODE, 1927, SEC. 51, ART. 8;
ARIZ. REV. CODE, 1936 SUPP., SEC. 943Y; POPE'S ARK. DIG.  1937, SEC.
3103; DEERING'S CAL. CODE, 1933 SUPP., TIT. 149, ACT 1943, P. 1302;
CONN. GEN. STAT., 1930, SEC. 2487, C. 135; DEL. REV. CODE, 1935, SEC.
649; FLA. COMP. GEN. LAWS, 1927, SECS. 3216, 7676; GA. CODE, 1933, SEC.
42-511; IDAHO CODE, 1932, TIT. 36, SECS. 502-504; JONES ILL. STAT.
ANN., 1937 SUPP., SEC. 53.020(1), (2), (3); BURNS IND. STAT., 1933,
SEC. 35-1203; IOWA CODE, 1935, SEC. 3062; KAN. GEN. STAT., 1935, C. 65,
SEC. 707; MD. ANN. CODE, ART. 27, SEC. 281; MASS. ANN. LAWS, 1933, SEC.
17-A, C. 94; MICH. COMP. LAWS, 1929, SEC. 5358; MASON'S MINN. STAT.,
1927, SEC. 3926; MO. REV. STAT., 1929, SECS. 12408-12413; MONT. REV.
CODE, ANDERSON AND MCFARLAND, 1935, C. 240, SEC. 2620.39; NEB. COMP.
STAT., 1929, SEC. 81-1022; N.H. PUB. L. 1926, V. 1, C. 163, SEC. 37, P.
619; N.J. COMP. STAT., 1911-1924, SEC. 81-8J, P. 1400; CAHILL'S N.Y.
CONS.  LAWS, 1930, SEC. 60, C. 1; N.D. COMP. LAWS, 1913-1925, POL. 
CODE, C. 38, SEC. 2855(A) 1; PAGE'S OHIO GEN. CODE, SEC. 12725;
PURDON'S PENNA.  STAT., 1936, TIT. 31, SECS. 553, 582; S.D. COMP. LAWS,
1929, C. 192, SEC. 7926-0, P. 2493; WILLIAMS TENN. CODE, 1934, C. 15,
SECS. 6549, 6551; VERNON'S TEX. PEN.  CODE, TIT. 12, C. 2, ART. 713A;
UTAH REV. STAT., 1933, SECS. 3-10-59, 3-10-60; VT. PUB. L., 1933, TIT.
34, C. 303, SEC. 7724, P. 1288; VA. 1936 CODE, SEC. 1197C; W. VA. 1932
CODE, SEC. 2036; WIS. STAT., 11TH ED. 1931, C. 98, SEC. 98.07, P. 1156;
CF. N. MEX.  ANN.  STAT., 1929, SECS. 25-104, 25-108.  THREE OTHERS
HAVE SUBJECTED ITS SALE TO RIGID REGULATIONS.  COLO. L. 1921, C. 30,
SEC. 1007, P. 440; ORE.  1930 CODE, V. 2, C. XII, SECS. 41-1208 TO 41
1210; REMINGTON'S WASH. REV. STAT., V. 7, TIT. 40, C. 13, SECS. 6206,
6207, 6713, 6714, P. 360, ET SEQ. 

FN4  THERE MAY BE NARROWER SCOPE FOR OPERATION OF THE PRESUMPTION OF
CONSTITUTIONALITY WHEN LEGISLATION APPEARS ON ITS FACE TO BE WITHIN A
SPECIFIC PROHIBITION OF THE CONSTITUTION, SUCH AS THOSE OF THE FIRST
TEN AMENDMENTS, WHICH ARE DEEMED EQUALLY SPECIFIC WHEN HELD TO BE
EMBRACED WITHIN THE FOURTEENTH.  SEE STROMBERG V. CALIFORNIA, 283 U.S.
359, 369-370; LOVELL V. GRIFFIN, 303 U.S. 444, 452. 

IT IS UNNECESSARY TO CONSIDER NOW WHETHER LEGISLATION WHICH RESTRICTS
THOSE POLITICAL PROCESSES WHICH CAN ORDINARILY BE EXPECTED TO BRING
ABOUT REPEAL OF UNDESIRABLE LEGISLATION, IS TO BE SUBJECTED TO MORE
EXACTING JUDICIAL SCRUTINY UNDER THE GENERAL PROHIBITIONS OF THE
FOURTEENTH AMENDMENT THAN ARE MOST OTHER TYPES OF LEGISLATION.  ON
RESTRICTIONS UPON THE RIGHT TO VOTE, SEE NIXON V. HERNDON, 273 U.S.
536; NIXON V. CONDON, 286 U.S. 73; ON RESTRAINTS UPON THE DISSEMINATION
OF INFORMATION, SEE NEAR V. MINNESOTA EX REL. OLSON, 283 U.S. 697, 713
714, 718-720, 722; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; LOVELL
V. GRIFFIN, SUPRA; ON INTERFERENCES WITH POLITICAL ORGANIZATIONS, SEE
STROMBERG V. CALIFORNIA, SUPRA, 369; FISKE V. KANSAS, 274 U.S. 380;
WHITNEY V. CALIFORNIA, 274 U.S. 357, 373-378; HERNDON V. LOWRY, 301
U.S. 242; AND SEE HOLMES, J., IN GITLOW V. NEW YORK, 268 U.S. 652, 673;
AS TO PROHIBITION OF PEACEABLE ASSEMBLY, SEE DE JONGE V. OREGON, 299
U.S. 353, 365. 

NOR NEED WE ENQUIRE WHETHER SIMILAR CONSIDERATIONS ENTER INTO THE
REVIEW OF STATUTES DIRECTED AT PARTICULAR RELIGIOUS, PIERCE V. SOCIETY
OF SISTERS, 268 U.S. 510, OR NATIONAL, MEYER V. NEBRASKA, 262 U.S. 390;
BARTELS V. IOWA, 262 U.S. 404; FARRINGTON V. TOKUSHIGE, 273 U.S. 484,
OR RACIAL MINORITIES, NIXON V. HERNDON, SUPRA; NIXON V. CONDON, SUPRA:
WHETHER PREJUDICE AGAINST DISCRETE AND INSULAR MINORITIES MAY BE A
SPECIAL CONDITION, WHICH TENDS SERIOUSLY TO CURTAIL THE OPERATION OF
THOSE POLITICAL PROCESSES ORDINARILY TO BE RELIED UPON TO PROTECT
MINORITIES, AND WHICH MAY CALL FOR A CORRESPONDINGLY MORE SEARCHING
JUDICIAL INQUIRY.  COMPARE MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 428;
SOUTH CAROLINA V. BARNWELL BROS., 303 U.S. 177, 184, N. 2, AND CASES
CITED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT AND IN ALL OF THE OPINION
EXCEPT THE PART MARKED "THIRD." 

MR. JUSTICE MCREYNOLDS THINKS THAT THE JUDGMENT SHOULD BE AFFIRMED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BUTLER. 

I CONCUR IN THE RESULT.  PRIMA FACIE THE FACTS ALLEGED IN THE
INDICTMENT ARE SUFFICIENT TO CONSTITUTE A VIOLATION OF THE STATUTE. 
BUT THEY ARE NOT SUFFICIENT CONCLUSIVELY TO ESTABLISH GUILT OF THE
ACCUSED.  AT THE TRIAL IT MAY INTRODUCE EVIDENCE TO SHOW THAT THE
DECLARATION OF THE ACT THAT THE DESCRIBED PRODUCT IS INJURIOUS TO
PUBLIC HEALTH AND THAT THE SALE OF IT IS A FRAUD UPON THE PUBLIC ARE
WITHOUT ANY SUBSTANTIAL FOUNDATION.  MOBILE, J. & K.C.R. CO. V.
TURNIPSEED, 219 U.S. 35, 43.  MANLEY V. GEORGIA, 279 U.S. 1, 6.  THE
PROVISIONS ON WHICH THE INDICTMENT RESTS SHOULD IF POSSIBLE BE
CONSTRUED TO AVOID THE SERIOUS QUESTION OF CONSTITUTIONALITY.  FEDERAL
TRADE COMM'N V. AMERICAN TOBACCO CO., 264 U.S. 298, 307.  PANAMA R. CO.
V. JOHNSON, 264 U.S. 375, 390.  MISSOURI PACIFIC R. CO. V. BOONE, 270
U.S. 466, 472.  RICHMOND CO. V. UNITED STATES, 275 U.S. 331, 346.  IF
CONSTRUED TO EXCLUDE FROM INTERSTATE COMMERCE WHOLESOME FOOD PRODUCTS
THAT DEMONSTRABLY ARE NEITHER INJURIOUS TO HEALTH NOR CALCULATED TO
DECEIVE, THEY ARE REPUGNANT TO THE FIFTH AMENDMENT.  WEAVER V. PALMER
BROS. CO., 270 U.S. 402, 412-13.  SEE PEOPLE V. CAROLENE PRODUCTS CO.,
345 ILL. 166.  CAROLENE PRODUCTS CO. V. MCLAUGHLIN, 365 ILL. 62; 5
N.E.2D 447.  CAROLENE PRODUCTS CO. V. THOMSON, 276 MICH. 172; 267 N.W.
608.  CAROLENE PRODUCTS CO. V. BANNING, 131 NEB. 429; 268 N.W. 313. 
THE ALLEGATION OF THE INDICTMENT THAT MILNUT "IS AN ADULTERATED ARTICLE
OF FOOD, INJURIOUS TO THE PUBLIC HEALTH," TENDERS AN ISSUE OF FACT TO
BE DETERMINED UPON EVIDENCE. 
..END :



















U.S. V. PAN AMERICAN CORP., 304 U.S. 156 


NO. 514.  ARGUED MARCH 29, 30, 1938.  - DECIDED APRIL 25, 1938.  - 18
F.SUPP.  624, REVERSED. 


1.  THE INTERSTATE COMMERCE COMMISSION DID NOT EXCEED THE POWERS
CONFERRED UPON IT BY THE INTERSTATE COMMERCE ACT, IN ORDERING CARRIERS
SERVING CERTAIN INDUSTRIAL PLANTS TO DISCONTINUE THE PRACTICE OF MAKING
ALLOWANCES ON THE LINE-HAUL RATES TO THE OWNERS OF THE PLANTS FOR
MOVING, WITH PLANT FACILITIES, CARS BETWEEN INTERCHANGE TRACKS AND
POINTS WITHIN THE PLANTS, THE COMMISSION HAVING FOUND, IN RESPECT OF
EACH OF THE PLANTS INVOLVED, THAT THE CARRIER'S OBLIGATION OF DELIVERY
WAS FULFILLED BY PLACING OR RECEIVING CARS ON THE INTERCHANGE TRACKS
AND THAT THE MOVING AND SPOTTING OF CARS IN THE PLANTS FORMED NO PART
OF THE SERVICE COVERED BY THE LINE-HAUL RATE.  UNITED STATES V.
AMERICAN SHEET & TIN PLATE CO., 301 U.S. 402.  P. 158. 

2.  EXAMINATION OF THE RECORD DISCLOSES THAT THE COMMISSION'S
FINDINGS AND ORDERS IN EACH OF THE CASES HERE INVOLVED WERE SUPPORTED
BY SUBSTANTIAL EVIDENCE.  ID. 

3.  THE VALUE AND WEIGHT OF THE EVIDENCE ON QUESTIONS OF FACT, AND
THE INFERENCES TO BE DRAWN THEREFROM, ARE FOR THE COMMISSION, AND ITS
DETERMINATION THEREOF IS CONCLUSIVE.  ID. 

UNITED STATES ET AL. V. PAN AMERICAN PETROLEUM CORP. ET AL.* 

*TOGETHER WITH NO. 530, UNITED STATES ET AL. V. HUMBLE OIL & REFINING
CO. ET AL., ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF TEXAS. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF LOUISIANA. 

APPEALS FROM DECREES OF SPECIALLY CONSTITUTED DISTRICT COURTS,
SETTING ASIDE AND ENJOINING THE ENFORCEMENT OF ORDERS OF THE INTERSTATE
COMMERCE COMMISSION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE APPEALS ARE FROM DECREES OF SPECIALLY CONSTITUTED DISTRICT
COURTS, SETTING ASIDE AND ENJOINING THE ENFORCEMENT OF ORDERS OF THE
INTERSTATE COMMERCE COMMISSION IN NINE CASES WHICH WERE CONSOLIDATED
FOR HEARING AND DECIDED IN A SINGLE OPINION.  FN1  THE ORDERS OF THE
COMMISSION WHICH WERE THE SUBJECT OF ATTACK COMMANDED THE RAILROAD OR
RAILROADS SERVING INDUSTRIAL PLANTS OF THE APPELLEES TO CEASE AND
DESIST FROM THE PAYMENT OF ALLOWANCES FOR SWITCHING SERVICES PERFORMED
BY PLANT FACILITIES.  THEY RESULTED FROM A GENERAL REPORT IN WHICH THE
COMMISSION AFTER INVESTIGATION ANNOUNCED GENERAL CONCLUSIONS RESPECTING
SWITCHING SERVICES BY CARRIERS IN INDUSTRIAL PLANTS, AND PAYMENT OF
ALLOWANCES OUT OF THE LINE-HAUL RATE TO AN INDUSTRY PERFORMING THE
SERVICE,  FN2  AND SUBSEQUENT SUPPLEMENTAL REPORTS WITH RESPECT TO
SPECIFIC PLANTS.  FN3  THE COMMISSION HELD THAT, IN THE CIRCUMSTANCES
DISCLOSED AT EACH OF THE PLANTS UNDER CONSIDERATION, THE CARRIERS'
OBLIGATION OF DELIVERY WAS FULFILLED BY PLACING OR RECEIVING CARS ON
INTERCHANGE TRACKS AND THAT THE MOVING AND SPOTTING OF CARS IN THE
INDUSTRIES' PLANTS FORMED NO PART OF THE SERVICE COVERED BY THE LINE
HAUL RATE.  IT CONCLUDED THAT THE PRACTICE OF MAKING AN ALLOWANCE OUT
OF THE RATE TO THE OWNER OF THE PLANT FOR THE PERFORMANCE OF THE
SPOTTING SERVICE WAS UNLAWFUL AND SHOULD BE DISCONTINUED. 

THE APPELLEES, IN THEIR COMPLAINTS, ASSERTED THAT IN MAKING ITS
ORDERS THE COMMISSION EXCEEDED THE POWERS CONFERRED UPON IT BY THE
INTERSTATE COMMERCE ACT.  THESE CONTENTIONS ARE THE SAME AS THOSE
CONSIDERED IN UNITED STATES V. AMERICAN SHEET & TIN PLATE CO., 301 U.S.
402, AND ARE FORECLOSED BY THE DECISION THEREIN. 

THE APPELLEES CHARGED THAT THE COMMISSION'S FINDINGS AND ORDERS WERE
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.  THE DISTRICT COURT HELD WITH
THEM UPON THIS POINT.  WE HAVE EXAMINED THE RECORD AND ARE OF OPINION
THAT IN EACH CASE THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE
COMMISSION'S FINDINGS.  NO USEFUL PURPOSE WILL BE SERVED BY A DETAILED
RECITAL OF THE EVIDENCE AND IT MUST SUFFICE TO SAY THAT, WHILE THE
CONDITIONS IN THE VARIOUS PLANTS DIFFERED, IN ALL OF THE CASES THE
COMMISSION HAD BEFORE IT MAPS EXHIBITING THE CHARACTER AND EXTENT OF
THE PLANT TRACKAGE, ITS RELATION AND ACCESSIBILITY TO THE MAIN LINE
TRACKS OF THE CARRIERS CONCERNED, AND PROOFS AS TO THE VOLUME AND
NATURE OF INTRA-PLANT CAR MOVEMENTS, THE AMOUNT OF ENGINE SERVICE
REQUIRED AND OTHER RELEVANT FACTS.  THE VALUE AND WEIGHT OF THE
EVIDENCE GIVEN BY RAILROAD AND PLANT EXECUTIVES, AND THE INFERENCES TO
BE DRAWN FROM IT, WERE FOR THE COMMISSION.  IN SOME INSTANCES THE
INCONVENIENCE AND DELAY TO THE CARRIERS IN PERFORMING PLANT SERVICES
WERE MORE OBVIOUS THAN IN OTHERS BUT WE ARE UNABLE TO SAY THAT IN ANY
CASE THE COMMISSION'S ORDERS WERE NOT BASED UPON SUBSTANTIAL EVIDENCE. 
THE ORDERS SHOULD NOT HAVE BEEN SET ASIDE, AND THE DECREES MUST BE
REVERSED. 

FN1  18 F.SUPP.  624.  A CIRCUIT JUDGE AND TWO DISTRICT JUDGES SAT AS
A DISTRICT COURT FOR EACH OF THE DISTRICTS TO HEAR THE CASES. 

FN2  EX PARTE NO. 104, PRACTICES OF CARRIERS AFFECTING OPERATING
REVENUES OR EXPENSES, PART II, TERMINAL SERVICES, 209 I.C.C. 11. 

FN3  MEXICAN PETROLEUM CORPORATION OF LA. INC. TERMINAL ALLOWANCE,
209 I.C.C. 394; CELOTEX COMPANY TERMINAL ALLOWANCE, 209 I.C.C. 764;
GREAT SOUTHERN LUMBER COMPANY-BOGALUSA PAPER COMPANY TERMINAL
ALLOWANCE, 209 I.C.C. 793; STANDARD OIL COMPANY OF LOUISIANA TERMINAL
ALLOWANCE, 209 I.C.C. 68; HUMBLE OIL & REFINING CO. TERMINAL ALLOWANCE,
209 I.C.C. 727; MAGNOLIA PETROLEUM COMPANY TERMINAL ALLOWANCE, 209
I.C.C. 93; TEXAS COMPANY TERMINAL ALLOWANCE AT HOUSTON, TEX., 209
I.C.C. 767; GULF REFINING COMPANY TERMINAL ALLOWANCE, 209 I.C.C. 756;
TEXAS COMPANY TERMINAL ALLOWANCES AT PORT ARTHUR, TEXAS, 213 I.C.C.
583. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :











HALE V. KENTUCKY, 303 U.S. 613 


NO. 680.  ARGUED MARCH 29, 1938.  - DECIDED APRIL 11, 1938.  - 269 KY.
743 -  108 S.W.2D 716, REVERSED. 


PROOFS HELD SUFFICIENT TO SHOW A SYSTEMATIC AND ARBITRARY EXCLUSION OF
NEGROES FROM JURY LISTS BECAUSE OF THEIR RACE OR COLOR, CONSTITUTING A
DENIAL OF THE EQUAL PROTECTION OF THE LAWS, AND ENTITLING THE
PETITIONER, A NEGRO CONVICTED OF MURDER, TO A NEW TRIAL.  P. 616. 

HALE V. KENTUCKY. 

CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY. 

CERTIORARI, POST, P. 629, TO REVIEW A JUDGMENT AFFIRMING A SENTENCE
FOR MURDER. 

PER CURIAM. 

PETITIONER, A NEGRO, WAS INDICTED IN 1936 FOR MURDER IN MCCRACKEN
COUNTY, KENTUCKY.  HE MOVED TO SET ASIDE THE INDICTMENT UPON THE GROUND
THAT THE JURY COMMISSIONERS HAD EXCLUDED FROM THE LIST FROM WHICH THE
GRAND JURY WAS DRAWN ALL PERSONS OF AFRICAN DESCENT BECAUSE OF THEIR
RACE AND COLOR AND THUS DENIED TO HIM THE EQUAL PROTECTION OF THE LAWS
IN VIOLATION OF THE CONSTITUTION OF THE UNITED STATES.  IN SUPPORT OF
HIS MOTION, HE PRESENTED AN AFFIDAVIT SHOWING THAT THE POPULATION OF
MCCRACKEN COUNTY WAS APPROXIMATELY 48,000 OF WHICH 8,000 WERE NEGROES;
THAT THE ASSESSOR'S BOOKS FOR THE COUNTY CONTAINED THE NAMES OF
APPROXIMATELY 6,000 WHITE PERSONS AND 700 NEGROES WHO WERE QUALIFIED
FOR JURY SERVICE IN ACCORDANCE WITH THE KENTUCKY STATUTES, SEC. 2241;
THAT THE JURY COMMISSIONERS FILLED THE WHEEL FOR JURY SERVICE FOR 1936
WITH BETWEEN 500 AND 600 NAMES EXCLUSIVELY OF WHITE CITIZENS AND THAT
NO NEGRO WAS EXCLUDED "BECAUSE HE WAS NOT AN INTELLIGENT, SOBER,
DISCREET AND IMPARTIAL CITIZEN, RESIDENT HOUSEKEEPER" OF THE COUNTY OR
NOT OF THE REQUISITE AGE; THAT THE FAILURE TO DRAW ANY NEGRO FOR
SERVICE WAS NOT DUE TO ANY OF THE DISQUALIFICATIONS MENTIONED IN THE
KENTUCKY STATUTES, SEC. 2248.  THE AFFIDAVIT FURTHER STATED THAT
PETITIONER COULD PROVE BY SHERIFFS OF MCCRACKEN COUNTY, SERVING
RESPECTIVELY FROM 1906 TO 1936, THAT DURING THEIR TERMS NO NEGROES HAD
BEEN SUMMONED FOR SERVICE ON ANY GRAND OR PETIT JURY IN THE COUNTY NOR
WAS THE NAME OF ANY NEGRO PLACED IN THE HANDS OF THE SHERIFF TO BE SO
SUMMONED; ALSO THAT PETITIONER COULD PROVE BY FEDERAL OFFICIALS THAT
FOR MANY YEARS PRIOR TO 1936 NEGRO CITIZENS OF THE COUNTY HAD SERVED ON
JURIES IN THE FEDERAL COURT AT PADUCAH; ALSO THAT PETITIONER COULD
PROVE BY MANY NAMED CITIZENS OF STANDING IN THE COMMUNITY THAT FOR A
LONG PERIOD OF YEARS THERE WERE NEGROES WHO WERE CITIZENS OF THE COUNTY
AND QUALIFIED FOR SERVICE ON JURIES IN THE STATE COURT.  PETITIONER
ALLEGED THAT THE PROOF WOULD SHOW "A LONG CONTINUED, UNVARYING AND
WHOLESALE EXCLUSION OF NEGROES FROM JURY SERVICE IN THIS COUNTY ON
ACCOUNT OF THEIR RACE AND COLOR," AND THAT THIS PRACTICE HAD BEEN
"SYSTEMATIC AND ARBITRARY" ON THE PART OF THE OFFICERS AND
COMMISSIONERS SELECTING NAMES FOR JURY SERVICE FOR A PERIOD OF FIFTY
YEARS OR LONGER. 

PETITIONER FILED A SUPPLEMENTAL AFFIDAVIT STATING THAT HE HAD LEARNED
THAT IN ONE CASE IN THE STATE COURT IN 1921 THE TRIAL JUDGE HAD
DIRECTED A NEGRO JURY TO BE SUMMONED FROM BYSTANDERS, BUT THAT THOSE
NEGRO JURORS WERE NOT ON THE JURY PANEL. 

THE ATTORNEY FOR THE STATE STIPULATED THAT THE ORIGINAL AND
SUPPLEMENTAL AFFIDAVITS SHOULD BE CONSIDERED AS EVIDENCE AND THAT THE
WITNESSES NAMED WOULD TESTIFY AS THEREIN SET FORTH.  NO EVIDENCE TO THE
CONTRARY WAS INTRODUCED BY THE STATE.  THE MOTION TO SET ASIDE THE
INDICTMENT WAS OVERRULED.  PETITIONER THEN MOVED TO DISCHARGE THE
ENTIRE PANEL OF THE JURY FOR CAUSE, UPON THE SAME FACTS, AND THE MOTION
WAS DENIED. 

PETITIONER, HAVING RESERVED HIS EXCEPTIONS, PLEADED NOT GUILTY AND
THE TRIAL PROCEEDED.  HE WAS CONVICTED AND SENTENCED TO DEATH.  THE
JUDGMENT WAS AFFIRMED BY THE COURT OF APPEALS OF THE STATE.  269 KY.
743; 108 S.W.2D 716.  IT APPEARS FROM AN AFFIDAVIT OF THE CLERK OF THE
CIRCUIT COURT OF MCCRACKEN COUNTY THAT BY INADVERTENCE A COPY OF THE
MOTION TO SET ASIDE THE INDICTMENT WAS OMITTED FROM THE RECORD BEFORE
THE COURT OF APPEALS.  THAT COURT, AFTER A SUMMARY OF THE FACTS SHOWN
BY THE RECORD SAID THAT THE CASE WAS ONE "WHERE THE PROOF MIGHT BE
REGARDED AS SUFFICIENT TO SUSTAIN THE GROUND UPON WHICH THE MOTION WAS
EVIDENTLY MADE, BUT THERE IS WANTING IN THE RECORD A SUFFICIENT
STATEMENT OF THOSE GROUNDS TO PERMIT THE INTRODUCTION OF THAT PROOF. 
THE FAILURE SO POINTED OUT IS ANALOGOUS," THE COURT SAID, "TO A CASE
WHERE THERE IS PROOF WITHOUT PLEADING, AND THE RULE IS THAT 'PLEADING
WITHOUT PROOF OR PROOF WITHOUT PLEADING' ARE EACH UNAVAILABLE." 

ON PETITION FOR REHEARING, THE MOTION WHICH HAD BEEN OMITTED FROM THE
RECORD WAS BROUGHT TO THE ATTENTION OF THE COURT OF APPEALS.  REHEARING
WAS DENIED.  ON PETITION TO THIS COURT FOR CERTIORARI THE PARTIES
STIPULATED THAT THE MOTION TO SET ASIDE THE INDICTMENT AS FILED BY
PETITIONER IN THE TRIAL COURT MIGHT BE READ AND CONSIDERED AS A PROPER
PART OF THE RECORD.  CERTIORARI WAS GRANTED. 

ON ARGUMENT AT THIS BAR, THE ATTORNEY GENERAL OF THE STATE EXPRESSLY
DISCLAIMED RELIANCE UPON THE OMISSION FROM THE ORIGINAL RECORD ON
APPEAL OF THE MOTION TO SET ASIDE THE INDICTMENT, AS THE FACT OF THE
MOTION HAD BEEN BROUGHT TO THE ATTENTION OF THE COURT OF APPEALS UPON
THE APPLICATION FOR REHEARING, AND CONCEDED THAT IF THE FACTS SET FORTH
IN THE AFFIDAVITS SUBMITTED UPON THAT MOTION WERE SUFFICIENT TO SHOW A
DENIAL OF CONSTITUTIONAL RIGHT, THE JUDGMENT SHOULD BE REVERSED. 

WE ARE OF THE OPINION THAT THE AFFIDAVITS, WHICH BY THE STIPULATION
OF THE STATE WERE TO BE TAKEN AS PROOF, AND WERE UNCONTROVERTED,
SUFFICED TO SHOW A SYSTEMATIC AND ARBITRARY EXCLUSION OF NEGROES FROM
THE JURY LISTS SOLELY BECAUSE OF THEIR RACE OR COLOR, CONSTITUTING A
DENIAL OF THE EQUAL PROTECTION OF THE LAWS GUARANTEED TO PETITIONER BY
THE FOURTEENTH AMENDMENT.  NEAL V. DELAWARE, 103 U.S. 370, 397; CARTER
V. TEXAS, 177 U.S. 442, 447; NORRIS V. ALABAMA, 294 U.S. 587. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :







SHANNAHAN V. UNITED STATES, 303 U.S. 596 


NO. 502.  ARGUED FEBRUARY 28, MARCH 1, 1938.  - DECIDED APRIL 4, 1938. 
20 F.SUPP.  1002, AFFIRMED. 


THE RAILWAY LABOR ACT CONFERS UPON THE NATIONAL MEDIATION BOARD
CERTAIN DUTIES RESPECTING MEDIATION OR ARBITRATION OF LABOR
CONTROVERSIES ON RAILROAD CARRIERS SUBJECT TO THE INTERSTATE COMMERCE
ACT, WITH THE PROVISO THAT THE TERM "CARRIER" SHALL NOT INCLUDE ANY
STREET, INTERURBAN, OR SUBURBAN ELECTRIC RAILWAY NOT OPERATING AS A
PART OF A GENERAL STEAM-RAILROAD SYSTEM OF TRANSPORTATION, ETC., AND
DIRECTS THE INTERSTATE COMMERCE COMMISSION UPON REQUEST OF THE
MEDIATION BOARD OR UPON COMPLAINT OF ANY PARTY INTERESTED TO DETERMINE
AFTER HEARING WHETHER ANY LINE OPERATED BY ELECTRIC POWER FALLS WITHIN
THE PROVISO.  HELD: 

1.  THAT A DECISION OF THE COMMISSION FINDING A RAILWAY NOT TO BE A
STREET, INTERURBAN, OR SUBURBAN ELECTRIC RAILWAY WITHIN THE MEANING OF
THE PROVISO WAS NOT AN "ORDER," EITHER IN FORM OR IN SUBSTANCE, BUT A
DETERMINATION OF FACT, NEGATIVE IN CHARACTER, AND NOT ENFORCEABLE BY
THE COMMISSION OR BY THE BOARD.  THEREFORE IT WAS NOT REVIEWABLE UNDER
THE URGENT DEFICIENCIES ACT OF 1913.  P. 599. 

2.  THE ARGUMENT THAT THE DECISION IS REVIEWABLE AS AN "ORDER" UNDER
THE URGENT DEFICIENCIES ACT, BECAUSE IT FIXES THE STATUS OF THE CARRIER
AS SUBJECT TO OBLIGATIONS OF THE RAILWAY LABOR ACT WILFUL FAILURE TO
COMPLY WITH WHICH IS MADE A MISDEMEANOR,  - IS CONSIDERED AND
REJECTED.  P. 601. 

SHANNAHAN ET AL., TRUSTEES, V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF INDIANA. 

APPEAL FROM A DECREE OF A THREE-JUDGE DISTRICT COURT DISMISSING FOR
WANT OF JURISDICTION A BILL TO SET ASIDE AN ALLEGED ORDER OF THE
INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION FOR DECISION IS WHETHER THE DISTRICT COURT HAD
JURISDICTION OF THIS CONTROVERSY UNDER THE URGENT DEFICIENCIES ACT OF
OCTOBER 22, 1913.  FN1 

THE CHICAGO SOUTH SHORE AND SOUTH BEND RAILROAD IS AN INTERSTATE
ELECTRIC RAILWAY SUBJECT TO THE INTERSTATE COMMERCE ACT.  ON AUGUST 9,
1934, THE NATIONAL MEDIATION BOARD REQUESTED THE COMMISSION TO
DETERMINE WHETHER THAT CARRIER FELL WITHIN THE EXEMPTION FROM THE SCOPE
OF THE RAILWAY LABOR ACT.  AS AMENDED JUNE 21, 1934, 48 STAT. 1185, C.
691(45 U.S.C. SEC. 151).  THAT ACT CONFERS UPON THE NATIONAL MEDIATION
BOARD CERTAIN DUTIES IN RESPECT TO CARRIERS BY RAILROAD SUBJECT TO THE
INTERSTATE COMMERCE ACT, WITH THE FOLLOWING EXCEPTION: 

"PROVIDED, HOWEVER, THAT THE TERM 'CARRIER' SHALL NOT INCLUDE ANY
STREET, INTERURBAN, OR SUBURBAN ELECTRIC RAILWAY, UNLESS SUCH RAILWAY
IS OPERATING AS A PART OF A GENERAL STEAM-RAILROAD SYSTEM OF
TRANSPORTATION, BUT SHALL NOT EXCLUDE ANY PART OF THE GENERAL STEAM
RAILROAD SYSTEM OF TRANSPORTATION NOW OR HEREAFTER OPERATED BY ANY
OTHER MOTIVE POWER.  THE INTERSTATE COMMERCE COMMISSION IS HEREBY
AUTHORIZED AND DIRECTED UPON REQUEST OF THE MEDIATION BOARD OR UPON
COMPLAINT OF ANY PARTY INTERESTED TO DETERMINE AFTER HEARING WHETHER
ANY LINE OPERATED BY ELECTRIC POWER FALLS WITHIN THE TERMS OF THIS
PROVISO." 

AFTER DUE HEARING HAD, AT WHICH THE SOUTH SHORE INTRODUCED EVIDENCE
AND FILED ITS BRIEF, THE MATTER WAS ARGUED ORALLY BEFORE THE
COMMISSION, WHICH, ON FEBRUARY 14, 1936, MADE ITS REPORT AND THE
FOLLOWING DETERMINATION (214 I.C.C. 167, 173): 

"WE FIND THAT THE LINE OF THE CHICAGO, SOUTH SHORE AND SOUTH BEND
RAILROAD IS NOT A STREET, INTERURBAN, OR SUBURBAN ELECTRIC RAILWAY
WITHIN THE MEANING OF THE EXEMPTION PROVISO IN THE FIRST PARAGRAPH OF
THEREFORE SUBJECT TO THE PROVISIONS OF THAT ACT." 

NO ORDER WAS ENTERED THEREON BY THE COMMISSION. 

SHANNAHAN AND JACKSON, WHO HAD BEEN APPOINTED TRUSTEES OF THE SOUTH
SHORE BY THE FEDERAL COURT FOR NORTHERN INDIANA, AND HAD FILED THEIR
APPEARANCE IN THE PROCEEDING, APPLIED FOR A REHEARING.  AN ORDER WAS
ENTERED DENYING THE SAME.  THEREUPON, THE TRUSTEES FILED THIS SUIT
AGAINST THE UNITED STATES, INVOKING THE JURISDICTION OF THE COURT UNDER
THE URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, TO SET ASIDE THE
ALLEGED ORDER.  THEY DO NOT DENY THAT THE SOUTH SHORE IS AN INTERSTATE
CARRIER SUBJECT TO THE JURISDICTION OF THE COMMISSION; AND THAT THE ACT
IS CONSTITUTIONAL.  THEIR CONTENTION IS THAT: 

"A CORRECT APPLICATION OF THE LAW TO THE UNDISPUTED FACTS LEADS TO
THE CONCLUSION THAT THE LINES OF THE RAILROAD OF APPELLANTS ARE AN
ELECTRIC INTERURBAN RAILWAY UNDER THE EXEMPTION PROVISO OF THE FIRST
DIVISION OF SECTION 1 OF THE RAILWAY LABOR ACT AND THAT THERE IS NO
SUBSTANTIAL EVIDENCE TO SUPPORT THE CONCLUSION AND DETERMINATION OF THE
COMMISSION." 

THE COMMISSION INTERVENED.  ITS ANSWER, AND THAT OF THE UNITED
STATES, CHALLENGED THE JURISDICTION OF THE COURT ON THE GROUND THAT THE
DETERMINATION OF THE COMMISSION WAS NOT AN "ORDER" WITHIN THE MEANING
OF THE URGENT DEFICIENCIES ACT.  THE CASE WAS HEARD BEFORE THREE JUDGES
ON THE PLEADINGS AND EVIDENCE; AND A DECREE WAS ENTERED DISMISSING THE
BILL FOR WANT OF JURISDICTION, ONE JUDGE DISSENTING.  20 F.SUPP. 
1002.  THE TRUSTEES APPEALED. 

FIRST.  THE FUNCTION OF THE COMMISSION IS LIMITED TO THE
DETERMINATION OF A FACT.  ITS DECISION IS NOT EVEN IN FORM AN ORDER. 
IT "HAD NO CHARACTERISTIC OF AN ORDER, AFFIRMATIVE OR NEGATIVE." 
UNITED STATES V. ILLINOIS CENT. R. CO., 244 U.S. 82, 89; UNITED STATES
V. ATLANTA, B. & C.R. CO., 282 U.S. 522, 527-28.  COMPARE LEHIGH VALLEY
R. CO. V. UNITED STATES, 243 U.S. 412, 414.  BUT EVEN IF THIS
DIFFICULTY IS OVERLOOKED, OTHERS ARE INSUPERABLE.  THE DECISION NEITHER
COMMANDS NOR DIRECTS ANYTHING TO BE DONE.  "IT WAS MERELY PREPARATION
FOR POSSIBLE ACTION IN SOME PROCEEDING WHICH MAY BE INSTITUTED IN THE
FUTURE."  UNITED STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299,
310.  THE DETERMINATION IS THUS NOT ENFORCEABLE BY THE COMMISSION; THE
ONLY ACTION WHICH COULD EVER BE TAKEN ON IT WOULD BE BY SOME OTHER
BODY.  IT IS AS CLEARLY "NEGATIVE" AS ORDERS BY WHICH THE COMMISSION
REFUSES TO TAKE REQUESTED ACTION.  UNITED STATES V. GRIFFIN, ANTE, P.
226.  FN2  AS SUCH, IT IS NOT REVIEWABLE UNDER THE URGENT DEFICIENCIES
ACT. 

SECOND.  MOREOVER, THE DETERMINATION OF THE COMMISSION IS NOT EVEN A
DECISION WHICH THE MEDIATION BOARD, BY WHOM IT WAS SOUGHT, IS EMPOWERED
TO ENFORCE.  THE ACT CONFERS UPON THE BOARD NO POWER OVER ANY CARRIER. 
IT MERELY IMPOSES UPON THE BOARD POSSIBLE DUTIES IN RESPECT TO
INTERSTATE CARRIERS BY RAILROAD NOT EXEMPTED BY THE PROVISO.  THE
BOARD'S DUTIES, IN CASE OF DISPUTE BETWEEN CARRIER AND EMPLOYEES,
REQUIRE IT: 

(1)  TO "PROMPTLY PUT ITSELF IN COMMUNICATION WITH THE PARTIES TO
(THE) CONTROVERSY, AND  ... USE ITS BEST EFFORTS, BY MEDIATION, TO
BRING THEM TO AGREEMENT."  WHEN A DISPUTE IS SETTLED THROUGH THESE
EFFORTS A MEDIATION AGREEMENT IS SIGNED, AND SHOULD ANY QUESTION ARISE
SUBSEQUENTLY REGARDING THE MEANING OR APPLICATION OF SUCH AN AGREEMENT,
THE BOARD IS REQUIRED UPON REQUEST OF EITHER PARTY "AND AFTER A HEARING
OF BOTH SIDES (TO) GIVE ITS INTERPRETATION WITHIN THIRTY DAYS." 

(2)  IF THE MEDIATING EFFORTS PROVE UNSUCCESSFUL, IT IS THE BOARD'S
DUTY TO "AT ONCE ENDEAVOR AS ITS FINAL REQUIRED ACTION  ...  TO INDUCE
THE PARTIES TO SUBMIT THEIR CONTROVERSY TO ARBITRATION, IN ACCORDANCE
WITH THE PROVISIONS OF" THE ACT.  IF ARBITRATION IS AGREED UPON IT MAY
BECOME THE BOARD'S DUTY TO NAME A THIRD ARBITRATOR IF THE TWO NAMED BY
THE PARTIES FAIL TO SELECT HIM. 

(3)  IF ARBITRATION IS REFUSED AND THE DISPUTE THREATENS
"SUBSTANTIALLY TO INTERRUPT COMMERCE TO A DEGREE SUCH AS TO DEPRIVE ANY
BOARD IS REQUIRED TO NOTIFY THE PRESIDENT. 

(4)  IF, IN SELECTING REPRESENTATIVES TO DEAL WITH THE CARRIERS,
DISPUTES ARISE AMONG EMPLOYEES AS TO WHAT ORGANIZATION THEY DESIRE TO
REPRESENT THEM, IT IS THE DUTY OF THE BOARD, ON REQUEST OF EITHER
PARTY, TO INVESTIGATE AND TO CERTIFY IN WRITING TO THE PARTIES AND TO
THE CARRIER THE NAMES OF THE INDIVIDUALS OR ORGANIZATIONS THAT HAVE
BEEN DESIGNATED AND AUTHORIZED TO REPRESENT THE EMPLOYEES. 

(5)  IF THE NATIONAL RAILROAD ADJUSTMENT BOARD UNDERTAKES
ARBITRATION, AND IT FAILS TO SELECT A REFEREE, THE MEDIATION BOARD HAS
THE DUTY OF DOING SO. 

IN ORDER NOT TO FAIL IN THE PERFORMANCE OF THESE DUTIES THE MEDIATION
BOARD HAD TO SATISFY ITSELF WHETHER THE SOUTH SHORE WAS A RAILROAD
WITHIN THE EXEMPTION PROVISO.  TO THAT END, IT APPLIED TO THE
COMMISSION FOR ITS DETERMINATION.  IF IT HAD OMITTED TO DO SO, THE
APPLICATION MIGHT HAVE BEEN MADE "UPON COMPLAINT OF ANY PARTY
INTERESTED."  THE DETERMINATION, WHETHER APPLIED FOR BY THE BOARD, BY A
CARRIER, OR BY EMPLOYEES, IS CLEARLY NOT AN ORDER ENFORCEABLE WITHIN
THE MEANING OF THE CASES CONSTRUING AND APPLYING THE URGENT
DEFICIENCIES ACT.  IT IS A DECISION ON A CONTROVERTED MATTER,
COMPARABLE TO THOSE CONSIDERED IN UNITED STATES V. LOS ANGELES & SALT
LAKE R. CO, 273 U.S. 299, IN GREAT NORTHERN RY. CO. V. UNITED STATES,
277 U.S. 172, IN UNITED STATES V. ATLANTA, B & C.R. CO., 282 U.S. 522,
AND IN UNITED STATES V. GRIFFIN, ANTE, P. 226, WHICH WERE HELD NOT TO
BE SUBJECT TO REVIEW UNDER THE URGENT DEFICIENCIES ACT. 

THIRD. THE TRUSTEES ARGUE THAT THE DETERMINATION OF THE COMMISSION IS
AN AFFIRMATIVE "ORDER, BECAUSE IT FIXED FOR THE FIRST TIME, BY THE ONLY
BODY AUTHORIZED BY LAW TO DO SO, THE STATUS OF THE CARRIER"; THAT BY
FIXING THE STATUS, THE OBLIGATIONS OF THE RAILWAY LABOR ACT ARE FIXED
UPON THE CARRIER; AND THAT WILFUL FAILURE OR REFUSAL OF ANY CARRIER TO
COMPLY WITH CERTAIN OF THE OBLIGATIONS IS MADE A MISDEMEANOR.  FN3 

LEHIGH VALLEY R. CO. V. UNITED STATES, SUPRA, SHOWS THAT THE
DETERMINATION OF A STATUS OR SIMILAR MATTER IS NOT ACTION SUBJECT TO
REVIEW UNDER THE URGENT DEFICIENCIES ACT EVEN IF DISREGARD OF THE
DETERMINATION MAY SUBJECT THE CARRIER TO CRIMINAL PROSECUTION.  FN4
THE PANAMA CANAL ACT, 37 STAT. 560, PROHIBITED, AFTER JULY 1, 1914, ANY
OWNERSHIP BY A RAILROAD IN ANY COMMON CARRIER BY WATER WHERE THE
RAILROAD MIGHT COMPETE WITH THE WATER CARRIER; PRESCRIBED A HEAVY
PENALTY FOR ANY VIOLATION OF THE PROHIBITION; AND CONFERRED UPON THE
COMMISSION JURISDICTION: 

"TO DETERMINE QUESTIONS OF FACT AS TO THE COMPETITION OR POSSIBILITY
OF COMPETITION, AFTER FULL HEARING, ON THE APPLICATION OF ANY RAILROAD
COMPANY OR OTHER CARRIER.  SUCH APPLICATION MAY BE FILED FOR THE
PURPOSE OF DETERMINING WHETHER ANY EXISTING SERVICE IS IN VIOLATION OF
THIS SECTION AND PRAY FOR AN ORDER PERMITTING THE CONTINUANCE OF ANY
VESSEL OR VESSELS ALREADY IN OPERATION ..." 

THEREUPON IN JANUARY, 1914, THE LEHIGH VALLEY FILED WITH THE
COMMISSION A PETITION FOR A HEARING ON THE QUESTION WHETHER THE
SERVICES OF A STEAMBOAT LINE OWNED BY IT WOULD BE IN VIOLATION OF THE
ABOVE SECTION AND FOR AN EXTENSION OF TIME.  THE COMMISSION HELD THAT,
BY VIRTUE OF THE ARRANGEMENTS FOUND TO EXIST, THE RAILROAD DID OR MIGHT
COMPETE WITH ITS BOAT LINE; AND DISMISSED THE PETITION.  THIS COURT
HELD THAT THE RISK TO WHICH THE RAILROAD WAS LEFT SUBJECT DID NOT COME
FROM THE ORDER, BUT FROM THE STATUTE WHICH CONTAINED THE PROHIBITION
AND PROVIDED A PENALTY; THAT, THEREFORE, IT WAS NOT AN AFFIRMATIVE
ORDER; AND THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION UNDER THE
URGENT DEFICIENCIES ACT.  COMPARE ALSO PIEDMONT & NORTHERN RY. CO. V.
UNITED STATES, 280 U.S. 469, 476-77. 

FOURTH.  WHETHER THE DETERMINATION OF THE COMMISSION IS REVIEWABLE IN
A DISTRICT COURT BY SOME JUDICIAL PROCEDURE OTHER THAN THAT OF THE
URGENT DEFICIENCIES ACT WE HAVE NO OCCASION TO CONSIDER.  COMPARE
UNITED STATES V. GRIFFIN, SUPRA, AND LEHIGH VALLEY RY. CO. V. UNITED
STATES, SUPRA. FN5  AFFIRMED. 

FN1  C. 32, 38 STAT. 208, 219, 220, 28 U.S.C. SECS. 41(28), 46, 47. 

FN2  SEE ALSO PROCTER & GAMBLE CO. V. UNITED STATES, 225 U.S. 282;
HOOKER V. KNAPP, 225 U.S. 302; LEHIGH VALLEY R. CO. V. UNITED STATES,
243 U.S. 412, 414; MANUFACTURERS RY. CO. V. UNITED STATES, 246 U.S.
457, 482-83; ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 279 U.S.
768, 781; PIEDMONT & NORTHERN RY. CO. V. UNITED STATES, 280 U.S. 469,
475-77; STANDARD OIL CO. V. UNITED STATES, 283 U.S. 235, 238; UNITED
STATES V. CORRICK, 298 U.S. 435, 438. 

FN3  45 U.S.C. SEC. 152(10).  THAT DECLARES:  "THE WILLFUL FAILURE OR
REFUSAL OF ANY CARRIER, ITS OFFICERS OR AGENTS, TO COMPLY WITH THE
TERMS OF THE THIRD, FOURTH, FIFTH, SEVENTH OR EIGHTH PARAGRAPH OF THIS
INTERFERENCE, INFLUENCE OR COERCION IN THE DESIGNATION OF
REPRESENTATIVES.  THE FOURTH ASSURES THE RIGHT OF EMPLOYEES TO BARGAIN
COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, AND FORBIDS
CARRIERS TO MAINTAIN OR FINANCIALLY ASSIST ANY LABOR ORGANIZATION.  THE
FIFTH PROHIBITS CARRIERS FROM REQUIRING ANY PERSON SEEKING EMPLOYMENT
TO SIGN ANY CONTRACT TO JOIN OR NOT TO JOIN A LABOR UNION.  THE SEVENTH
PROHIBITS CARRIERS FROM CHANGING RATES OF PAY, RULES OR WORKING
CONDITIONS OF EMPLOYEES AS A CLASS EXCEPT AS PRESCRIBED IN SEC. 156. 
THE EIGHTH REQUIRES CARRIERS TO NOTIFY ITS EMPLOYEES BY PRINTED NOTICES
IN SUCH FORM AS SHALL BE SPECIFIED BY THE MEDIATION BOARD THAT ALL
DISPUTES WILL BE HANDLED IN ACCORDANCE WITH THE REQUIREMENTS OF THE
ACT. 

FN4  FOR DETAILS, SEE OPINION OF THE DISTRICT COURT FOR EASTERN
PENNSYLVANIA, 234 FED. 682. 

FN5  IN UTAH-IDAHO CENT. RY. V. SHIELDS (UNREPORTED), D. UTAH, OCT.
15, 1936, AND IN HUDSON & MANHATTAN RY. V. HARDY, S.D.N.Y., FEB. 21,
1938, 22 F.SUPP.  105(WHERE JURISDICTION UNDER THE URGENT DEFICIENCIES
ACT WAS SPECIFICALLY DENIED), THE ELECTRIC RAILWAYS INVOLVED WERE
DECLARED IN PROCEEDINGS BEFORE SINGLE JUDGES TO BE WITHIN THE PROVISO
EXCLUDING THEM FROM THE APPLICATION OF THE ACT, AND FINAL INJUNCTIONS
AGAINST PROSECUTION FOR PENALTIES WERE GRANTED, ALTHOUGH THE INTERSTATE
COMMERCE COMMISSION, IN 214 I.C.C. 707 AND 216 I.C.C. 745,
RESPECTIVELY, HAD REACHED THE OPPOSITE CONCLUSION.  IN TEXAS ELECTRIC
RY. V. EASTUS (UNREPORTED), N.D. TEX., JUNE 4, 1936, A PRELIMINARY
INJUNCTION WAS LIKEWISE GRANTED IN SPITE OF THE COMMISSION'S DECISION
IN 208 I.C.C. 193.  FROM INFORMAL SOURCES IT HAS BEEN LEARNED THAT
SIMILAR PROCEEDINGS HAVE BEEN INSTITUTED IN OTHER CASES.  CHICAGO
WAREHOUSE & TERM.  CO. V. IGOE, N.D. ILL., AND CHICAGO TUNNEL CO. V.
IGOE, N.D. ILL., TO REVIEW 214 I.C.C. 81; HUDSON & MANHATTAN RY. V.
QUINN, D.N.J., TO REVIEW 216 I.C.C. 745; NEW YORK, W. & B.R. CO. V.
HARDY, S.D.N.Y., TO REVIEW 218 I.C.C. 253. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





COVERDALE V. PIPE LINE CO., 303 U.S. 604 


NO. 458.  ARGUED FEBRUARY 28, 1938.  - DECIDED APRIL 4, 1938.  - 20
F.SUPP.  676, REVERSED. 


A CORPORATION PRODUCED AND PURCHASED NATURAL GAS IN LOUISIANA, PIPED
IT FROM THE WELLS TO THE LOUISIANA TERMINUS OF ITS INTERSTATE PIPELINE,
AND INTRODUCED IT INTO THAT LINE UNDER INCREASED PRESSURE INDUCED BY
THE POWER OF GAS ENGINES OPERATING GAS COMPRESSORS.  NEARLY ALL OF THE
GAS WAS TRANSPORTED AND DISPOSED OF IN INTERSTATE COMMERCE, AND THE
INCREASE OF PRESSURE WAS ESSENTIAL TO ITS MOVEMENT THROUGH THE
PIPELINE.  AS A COMPLEMENT TO TAXATION OF THE GENERATION AND SALE OF
ELECTRICITY, LOUISIANA LAID A PRIVILEGE TAX ON OPERATION OF MACHINES
FOR PRODUCTION OF MECHANICAL POWER USED BY THE OPERATOR IN HIS BUSINESS
WITHIN THE STATE, THE TAX BEING MEASURED ON THE HORSEPOWER CAPACITY OF
SUCH MACHINES.  HELD: 

1.  THAT, APPLIED TO THE OPERATION OF THE CORPORATION'S GAS ENGINES,
THE TAX WAS NOT INVALID AS A BURDEN ON THE INTERSTATE COMMERCE.  P.
609. 

2.  TAXATION BY THE STATES OF THE BUSINESS OF INTERSTATE COMMERCE IS
FORBIDDEN ONLY BECAUSE IT IS DEEMED AN INTERFERENCE WITH THAT COMMERCE,
THE UNIFORM REGULATION OF WHICH IS NECESSARILY RESERVED TO THE
CONGRESS.  P. 610. 

3.  EXEMPTION OF THOSE ENGAGED IN INTERSTATE COMMERCE FROM THE
TAXATION OTHERS BEAR SHOULD NOT BE EXTENDED BEYOND THE NECESSITY OF
KEEPING THAT COMMERCE FREE FROM INTERFERENCE.  P. 610. 

4.  PRIVILEGES CLOSELY CONNECTED WITH INTERSTATE COMMERCE MAY BE
REGARDED AS DISTINCT FOR PURPOSES OF TAXATION.  P. 610. 

5.  WHILE THE ENGINE AND COMPRESSOR UNITS ARE CONNECTED DIRECTLY, ON
A COMMON BED PLATE, THEIR FUNCTIONS ARE AS COMPLETELY SEPARATE AS IF
THEY OPERATED THROUGH BELTING.  WHILE THE USE OF THE ENGINE FOR THE
PRODUCTION OF POWER SYNCHRONIZES WITH THE TRANSMISSION OF THAT POWER TO
THE COMPRESSOR, PRODUCTION OCCURS PRIOR TO TRANSMISSION.  CF. UTAH
POWER & LIGHT CO. V. PFOST, 286 U.S. 165.  P. 611. 

6.  THE TAX IS WITHOUT DISCRIMINATION IN FORM OR APPLICATION AS
BETWEEN INTERSTATE AND INTRASTATE COMMERCE AND IS NOT SUCH AS CAN BE
IMPOSED BY MORE THAN ONE STATE.  IT OBVIOUSLY ADDS TO THE COST OF THE
INTERSTATE COMMERCE.  BUT INCREASED COST ALONE IS NOT SUFFICIENT TO
INVALIDATE THE TAX AS AN INTERFERENCE WITH THAT COMMERCE.  CF. WESTERN
LIVE STOCK V. BUREAU OF REVENUE, ANTE, P. 250.  P. 612. 

COVERDALE, SHERIFF AND EX-OFFICIO TAX COLLECTOR, V. ARKANSAS-LOUISIANA
PIPE LINE CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF LOUISIANA. 

APPEAL FROM A DECREE OF THE THREE-JUDGE DISTRICT COURT WHICH
PERMANENTLY ENJOINED THE SHERIFF FROM ENFORCING A STATE TAX FOUND TO BE
UNCONSTITUTIONAL.  SEE ALSO 17 F.SUPP.  34, 36. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER A STATE STATUTE IMPOSING A PRIVILEGE TAX ON
THE PRODUCTION OF MECHANICAL POWER CONTRAVENES THE INTERSTATE COMMERCE
CLAUSE IN SO FAR AS IT IS APPLIED TO AN ENGINE USED TO SUPPLY
MECHANICAL POWER TO A COMPRESSOR WHICH INCREASES THE PRESSURE OF
NATURAL GAS AND THUS PERMITS IT TO BE TRANSPORTED TO PURCHASERS IN
OTHER STATES. 

ACT NO. 6 OF THE REGULAR SESSION OF 1932 OF THE LOUISIANA
LEGISLATURE, WITH CERTAIN QUALIFICATIONS AND EXCEPTIONS NOT MATERIAL
HERE, PROVIDES FOR A LICENSE TAX TO BE PAID BY EVERYONE ENGAGED WITHIN
THE STATE IN THE BUSINESS OF MANUFACTURING OR GENERATING ELECTRICITY
FOR HEAT, LIGHT OR POWER, SEC. 1, OR OF SELLING ELECTRICITY NOT
MANUFACTURED OR GENERATED BY HIM OR IT, SEC. 2.  SECTION 3 PROVIDES
THAT EVERY PERSON, FIRM, CORPORATION, OR ASSOCIATION, ENGAGED WITHIN
THE STATE IN ANY BUSINESS, WHICH USES IN THE CONDUCT OF THAT BUSINESS
ELECTRICAL OR MECHANICAL POWER OF MORE THAN TEN HORSEPOWER AND DOES NOT
PROCURE ALL THE POWER FROM A TAXPAYER SUBJECT TO SEC. 1 OR SEC. 2,
"SHALL BE SUBJECT TO THE PAYMENT OF AN EXCISE, LICENSE, OR PRIVILEGE
TAX OF ONE DOLLAR ($1.00) PER ANNUM FOR EACH HORSEPOWER OF CAPACITY OF
THE MACHINERY OR APPARATUS, KNOWN AS THE 'PRIME MOVER' OR 'PRIME
MOVERS,' OPERATED BY SUCH PERSON, FIRM, CORPORATION OR ASSOCIATION OF
PERSONS, FOR THE PURPOSE OF PRODUCING POWER FOR USE IN THE CONDUCT OF
SUCH BUSINESS OR OCCUPATION;..." 

APPELLEE IS ENGAGED WITHIN LOUISIANA, ARKANSAS, AND TEXAS, IN THE
BUSINESS OF PRODUCING AND BUYING, TRANSPORTING AND SELLING NATURAL
GAS.  THE GAS IS OBTAINED FROM THE MONROE AND RICHLAND FIELDS IN
LOUISIANA, AND TRANSPORTED THROUGH APPELLEE'S 20-INCH PIPE LINE, ONE OF
THE LARGEST IN THE SOUTHWEST, WHICH EXTENDS FROM STERLINGTON,
LOUISIANA, TO BLANCHARD, LOUISIANA, WHERE ONE BRANCH GOES WEST INTO
TEXAS, AND THE OTHER NORTH INTO TEXAS AND ARKANSAS UP TO LITTLE ROCK. 
NINETY-SIX AND 6/10 PER CENT. (96.6%) OF THE GAS TRANSPORTED THROUGH
THIS LINE DURING THE FISCAL YEAR ENDED JULY 31, 1933, WAS DELIVERED
OUTSIDE THE STATE OF LOUISIANA. 

THE NATURAL GAS CANNOT BE TRANSMITTED THROUGH THIS PIPE LINE FOR
THESE DISTANCES IN AMOUNTS SUFFICIENT TO MEET THE NEEDS OF APPELLEE'S
CUSTOMERS, UNLESS IT IS DELIVERED INTO THE PIPE LINE AT A PRESSURE
HIGHER THAN THAT AT WHICH IT COMES FROM THE WELLS.  ACCORDINGLY,
APPELLEE MAINTAINS IN LOUISIANA, AT THE POINT OF INTAKE INTO THE LINE,
ITS "MUNCE COMPRESSOR STATION" WHERE ARE LOCATED TEN PUMPS, OR NATURAL
GAS COMPRESSORS, WHICH OPERATE TO INCREASE THE PRESSURE OF THE GAS TO
THE REQUIRED EXTENT.  THESE COMPRESSORS ARE DIRECTLY CONNECTED TO TEN
FOUR-CYLINDER 1,000 HORSEPOWER COOPER BESSEMER INTERNAL COMBUSTION GAS
BURNING ENGINES.  THERE ARE ALSO TWO 250 HORSEPOWER GAS BURNING ENGINES
FOR GENERAL POWER SERVICE AT THE STATION.  THE TAX IS LAID ON THE
PRIVILEGE OF OPERATING THESE TWELVE GAS ENGINES, KNOWN AS "PRIME
MOVERS,"  FN1  AND IS IMPOSED AT THE RATE OF $1 PER HORSEPOWER CAPACITY
OF THE ENGINE - I.E., A TOTAL TAX OF $10,500. 

APPELLEE'S COMPLAINT, SETTING FORTH THESE FACTS, WAS FILED IN THE
DISTRICT COURT FOR WESTERN LOUISIANA.  IT PRAYED THAT THE TAX BE
DECLARED INVALID AND THAT THE APPELLANT, SHERIFF, BE ENJOINED FROM
SELLING APPELLEE'S PROPERTY TO ENFORCE PAYMENT OF $7,316, PLUS CERTAIN
PENALTIES AND ATTORNEY FEES, AS THE BALANCE OF THE "PRIME MOVER TAX"
DUE FOR THE YEAR ENDING JULY 31, 1933.  FN2 AN EX PARTE TEMPORARY
RESTRAINING ORDER WAS ISSUED.  A STATUTORY THREE-JUDGE COURT WAS
CONVENED, AND A PRELIMINARY INJUNCTION GRANTED, 17 F.SUPP.  34.  THE
STATUTE WAS HELD INVALID FOR THE REASON, AMONG OTHERS, THAT AS APPLIED
TO THIS CASE IT IMPOSED AN UNCONSTITUTIONAL BURDEN ON INTERSTATE
COMMERCE.  ON A REHEARING, THE COURT, WITH ONE DISSENT, DETERMINED
AGAIN THAT IT WAS INVALID, WITH THE VIOLATION OF THE COMMERCE CLAUSE AS
THE SOLE BASIS OF DECISION, 17 F.SUPP.  36.  FN3  AFTER ANSWER AND
SUBMISSION OF AFFIDAVITS BY BOTH PARTIES, THE COURT GRANTED A PERMANENT
INJUNCTION, 20 F.SUPP.  676.  THE CASE WAS BROUGHT HERE ON DIRECT
APPEAL.  JUDICIAL CODE, SECS. 238(3), 266, 28 U.S.C. SECS. 345(3) 380. 

FIRST.  THE CHARACTER OF THE TAX ACT UNDER CONSIDERATION IS CLEAR. 
IT IS A REVENUE MEASURE OBTAINING FUNDS BY LEVYING A PRIVILEGE TAX ON
THOSE GENERATING OR SELLING ELECTRICITY IN LOUISIANA.  SECS. 1 AND 2. 
PRESUMABLY TO PROTECT THIS SOURCE OF REVENUE AGAINST TAX-FREE
COMPETITION, SEC. 3,  FN4  WITH BROAD EXEMPTIONS NOT ASSAILED HERE,
SUBJECTS THE USERS OF ELECTRICAL OR MECHANICAL POWER, NOT PROCURED FROM
THOSE SUBJECT TO SEC. 1 OR SEC. 2, TO A TAX OF ONE DOLLAR PER ANNUM FOR
EACH HORSEPOWER OF CAPACITY OF THE MACHINERY OPERATED BY THE TAXPAYER
FOR THE PURPOSE OF PRODUCING THIS POWER.  THE STATE COURT HAS HELD THAT
THE MACHINES BUT ON THOSE WHO USE THEM IN THE CONDUCT OF THEIR
BUSINESS, STATE V. H.L. HUNT, INC., 182 LA. 1075, 1079-1080; 162 SO.
777, A DECISION ACCEPTED, SO FAR AS THE INCIDENCE OF THE TAX IS
CONCERNED, AS A MATTER OF LOCAL LAW CONCLUSIVE ON US.  ST. LOUIS &
S.W.R. CO. V. ARKANSAS, 235 U.S. 350, 362; STORAASLI V. MINNESOTA, 283
U.S. 57, 62.  WE REGARD THE TAX AS ONE UPON THE PRIVILEGE OF PRODUCING
THE POWER. 

SECOND.  THE LANGUAGE OF THE STATE STATUTE MAKES IT QUITE CERTAIN
THAT THIS PRIVILEGE TAX FALLS ALIKE ON THOSE ENGAGED IN INTERSTATE OR
IN INTRASTATE COMMERCE, OR IN BOTH.  WHILE A PRIVILEGE TAX BY A STATE
FOR ENGAGING IN INTERSTATE BUSINESS HAS FREQUENTLY MET THE CONDEMNATION
OF THIS COURT AS A REGULATION OF COMMERCE,  FN5  PRIVILEGE TAXES FOR
"CARRYING ON A LOCAL BUSINESS," EVEN THOUGH MEASURED BY INTERSTATE
BUSINESS, HAVE BEEN SUSTAINED.  AMERICAN MFG. CO. V. ST. LOUIS, 250
U.S. 459; FICKLEN V. SHELBY COUNTY TAXING DISTRICT, 145 U.S. 1; FN6
CF. WESTERN LIVE STOCK V. BUREAU OF REVENUE, ANTE, P. 250.  THE PRESENT
CASE FALLS WELL WITHIN THE LINE OF STATE TAX AUTHORITY. 

TAXATION BY THE STATES OF THE BUSINESS OF INTERSTATE COMMERCE IS
FORBIDDEN ONLY BECAUSE IT IS DEEMED AN INTERFERENCE WITH THAT COMMERCE,
THE UNIFORM REGULATION OF WHICH IS NECESSARILY RESERVED TO THE
CONGRESS.  MINNESOTA RATE CASES, 230 U.S. 352, 400.  AS THIS SOURCE OF
REVENUE, EVEN IF TREATED IN A NON-DISCRIMINATORY MANNER, IS WITHDRAWN
FROM LOCAL REACH BY INFERENCE FROM THE DELEGATED GRANT, THE EXEMPTION
OF THOSE ENGAGED IN INTERSTATE COMMERCE FROM THE TAXATION OTHERS BEAR
SHOULD NOT BE EXTENDED BEYOND THE NECESSITY OF KEEPING THAT COMMERCE
FREE FROM INTERFERENCE.  CONSEQUENTLY, PROPERTY TAXES ON THE
INSTRUMENTALITIES OR NET INCOME TAXES ON THE PROCEEDS OF INTERSTATE
COMMERCE ARE UPHELD.  CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450;
UNITED STATES GLUE CO. V. OAK CREEK, 247 U.S. 321. 

PRIVILEGES CLOSELY CONNECTED WITH THE COMMERCE MAY BE REGARDED AS
DISTINCT FOR PURPOSES OF TAXATION.  SO, LOCAL PRIVILEGE TAXES ON
STORAGE IN TRANSIT, COMPRESSING OR DEALING IN COTTON, ALREADY MOVING IN
ITS INTERSTATE JOURNEY FROM PLANTATION TO MILL, ARE VALIDATED AS
IMPOSED UPON OPERATIONS IN CONNECTION WITH A COMMODITY WITHDRAWN FROM
THE TRANSPORTATION MOVEMENT.  FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S.
17, 21; CHASSANIOL V. GREENWOOD, 291 U.S. 584; CF. MINNESOTA V.
BLASIUS, 290 U.S. 1.  AND SIMILAR TAXES ARE UPHELD FOR THE PRIVILEGE OF
MINING ORES OR PRODUCING GAS, NOTWITHSTANDING THE "PRACTICAL
CONTINUITY" OF THE TAXED PRODUCTIVE OPERATION AND THE INTERSTATE
MOVEMENT.  OLIVER IRON MIN. CO. V. LORD, 262 U.S. 172; HOPE NATURAL GAS
CO. V. HALL, 274 U.S. 284.  IN UTAH POWER & LIGHT CO. V. PFOST, 286
U.S. 165, AN IDAHO STATUTE TAXING THE GENERATION OF ELECTRICITY AT SO
MUCH A KILOWATT HOUR WAS UPHELD BECAUSE A DIFFERENCE WAS PERCEIVED
BETWEEN THE CONVERSION OF THE MECHANICAL ENERGY OF FALLING WATER INTO
ELECTRICAL ENERGY AND THE TRANSPORTATION OF THE LATTER.  THE TAX HERE
IMPOSED ON THE OPERATION OF THE MACHINERY IS OF THE SAME TYPE. 

THE POWER USED BY THE APPELLEE IS OBTAINED FROM INTERNAL COMBUSTION
ENGINES WHICH TRANSFORM THE POTENTIAL ENERGY OF NATURAL GAS INTO
MECHANICAL POWER, TRANSMITTED BY PISTON AND PISTON-ROD FROM THE
COMBUSTION CHAMBER OF THE ENGINE TO THE COMPRESSION CHAMBER OF THE
COMPRESSOR.  WHILE THE ENGINE AND COMPRESSOR UNITS ARE ASSEMBLED ON A
COMMON BED PLATE, THEIR FUNCTIONS ARE THUS SEEN TO BE AS COMPLETELY
SEPARATE AS IF THEY OPERATED THROUGH BELTING.  THE ENGINE IS THE "PRIME
MOVER" OF THE TAX ACT, PRODUCING POWER TO DRIVE THE COMPRESSOR.  WHILE
THE USE OF THE ENGINE FOR THE PRODUCTION OF POWER SYNCHRONIZES WITH THE
TRANSMISSION OF THAT POWER TO THE COMPRESSOR, PRODUCTION OCCURS PRIOR
TO TRANSMISSION.  IT IS JUST AS MUCH LOCAL AS THE GENERATION OF
ELECTRICAL POWER. 

HELSON V. KENTUCKY, 279 U.S. 245, STATE TAX COMMISSION V. INTERSTATE
NATURAL GAS CO., 284 U.S. 41, AND COONEY V. MOUNTAIN STATES TEL. CO.,
294 U.S. 384, ARE PRESSED UPON US AS CONTROLLING AUTHORITIES FOR THE
INVALIDATION OF THE TAX.  WE THINK THEY BELONG TO THE CATEGORY OF CASES
WHICH CONSTRUE THE STATE TAX ACTS INVOLVED AS TAXES ON INTERSTATE
COMMERCE AND ITS INSTRUMENTALITIES RATHER THAN ON OPERATIONS CLOSELY
CONNECTED WITH BUT DISTINCT FROM THAT COMMERCE.  IN THE INTERSTATE CASE
AND THE COONEY CASE TAXES LEVIED ON THE BUSINESS OF ENGAGING IN
INTERSTATE COMMERCE WERE HELD INVALID.  LIKEWISE, IN THE HELSON CASE,
THIS COURT CONCLUDED THAT THE TAX ON GASOLINE BROUGHT INTO THE STATE
AND USED ON AN INTERSTATE FERRY WAS ANALOGOUS TO A TAX ON THE USE OF
THE FERRY ITSELF IN TRANSIT AND THEREFORE WITHIN THE RULE PROHIBITING
STATE TAXES ON COMMERCE.  A NARROW DISTINCTION IN FACT EXISTS BETWEEN
THE TAX HELD INVALID IN THE HELSON CASE AND THE VALID TAX CONSIDERED IN
NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S. 249, WHERE A TAX ON
GASOLINE BROUGHT INTO THE STATE, STORED AND THEN USED TO DRIVE ENGINES
IN INTERSTATE TRANSPORTATION, WAS HELD VALID.  THE STORAGE AND
WITHDRAWAL WAS AN INTRASTATE, TAXABLE EVENT.  SEE ALSO EDELMAN V.
BOEING AIR TRANSPORT, 289 U.S. 249, 252; GREGG DYEING CO. V. QUERY, 286
U.S. 472, 479. 

THIRD.  TO DETERMINE WHETHER THIS CHALLENGED STATE TAX ENACTMENT IS
INVALID AS AN INTERFERENCE WITH INTERSTATE COMMERCE UNDER THE DECISIONS
OF THIS COURT, THE CONNECTION OF THE PRIVILEGE TAXED WITH INTERSTATE
COMMERCE HAS BEEN CONSIDERED.  OTHER FACTORS ALSO SHOW THAT THE TAX
HERE DOES NOT INTERFERE WITH INTERSTATE COMMERCE.  THE TAX IS WITHOUT
DISCRIMINATION IN FORM OR APPLICATION AS BETWEEN INTER- AND INTRA-STATE
COMMERCE AND IT CANNOT BE IMPOSED BY MORE THAN ONE STATE.  THE COURSE
OF INTERSTATE COMMERCE IS CLOGGED BY TAXES DESIGNED OR APPLIED SO AS TO
HAMPER ITS FREE FLOW.  SECTION THREE, HOWEVER, BEARING EQUALLY ON ALL
USE, IS ONLY COMPLEMENTARY TO THE TAXES OF SECTIONS ONE AND TWO. 
HENNEFORD V. SILAS MASON CO., 300 U.S. 577, 584.  IT BEARS GENERALLY ON
ALL USE OF POWER AND IS NOT DISCRIMINATORY.  IT OBVIOUSLY ADDS TO THE
COST OF THE INTERSTATE COMMERCE.  BUT INCREASED COST ALONE IS NOT
SUFFICIENT TO INVALIDATE THE TAX AS AN INTERFERENCE WITH THAT
COMMERCE.  WESTERN LIVE STOCK V. BUREAU OF REVENUE, ANTE, P. 254. 

IT WAS HELD BY THE DISTRICT COURT THAT THIS IS A TAX WHICH MAY BE
LEVIED BY OTHER STATES AND SO IS INVALID, AND THAT A STATE'S DESIRE TO
SAVE GAS FOR ITS CITIZENS MAY INDUCE IT TO RAISE THE PRIVILEGE TAX TO
PROHIBITORY RATES.  IT IS TRUE THAT EACH STATE THROUGH WHICH A PIPE
LINE PASSES COULD LAY A TAX ON THE USE OF ENGINES FOR THE PRODUCTION OF
POWER, BUT THAT WOULD NOT BE MULTIPLE TAXATION "MERELY BECAUSE
INTERSTATE COMMERCE IS BEING DONE," AS DISCUSSED IN WESTERN LIVE STOCK
V. BUREAU OF REVENUE, ANTE, P. 255, AND THE AUTHORITIES THERE CITED. 
IT WOULD NOT BE A TAX ON THE SAME ACTIVITY, EITHER IN FORM OR IN
SUBSTANCE.  LIKE A PROPERTY TAX ON THE PIPES OR EQUIPMENT IN DIFFERENT
STATES, IT WOULD BE A DIFFERENT TAX, ON A DIFFERENT AND WHOLLY SEPARATE
SUBJECT MATTER, WITH NO CUMULATIVE EFFECT CAUSED BY THE INTERSTATE
CHARACTER OF THE BUSINESS.  IT WOULD NOT BE MULTIPLE TAXATION FOR EACH
STATE TO TAX THE "BOOSTER STATION" AD VALOREM AS PROPERTY.  NEITHER IS
IT PROHIBITED MULTIPLE TAXATION TO HAVE THE POSSIBILITY OF OTHER
PRIVILEGE TAXES ON THE PRODUCTION OF POWER.  IT IS LENGTH OF LINE, NOT
INTERSTATE COMMERCE, WHICH MAKES ANOTHER TAX POSSIBLE. 

THE DECREE OF THE DISTRICT COURT IS REVERSED. 

FN1  THIS TERM, USED IN SEC. 3, SUPRA, IS NOT DEFINED ELSEWHERE IN
THE STATUTE.  WEBSTER'S NEW INTERNATIONAL DICTIONARY (2D ED.
UNABRIDGED, 1936) P. 1964, CONTAINS THE FOLLOWING:  "PRIME MOVER. 
MECH....  B AN INITIAL SOURCE OF MOTIVE POWER, AS AN ENGINE, OR
MACHINE, THE OBJECT OF WHICH IS TO RECEIVE AND MODIFY FORCE AND MOTION
AS SUPPLIED BY SOME NATURAL SOURCE, AND APPLY THEM TO DRIVE OTHER
MACHINERY, AS A WATER WHEEL, A WATER-PRESSURE ENGINE, A WIND-MILL, A
TURBINE, A TIDAL MOTOR, A STEAM ENGINE OR OTHER HEAT ENGINE, ETC."  AS
EXPLANED BY EXPERT WITNESSES FOR THE APPELLANT, THE INTERNAL COMBUSTION
GAS ENGINE IS A PRIME MOVER WHICH CONVERTS HEAT ENERGY, CONTAINED IN
THE NATURAL GAS AS FUEL, INTO MECHANICAL ENERGY, THEN SUPPLIED TO AND
USED BY THE COMPRESSOR UNIT.    FN2  APPELLEE ALLEGED THAT IT HAD PAID
PART OF THE TAX IMPOSED BY THE STATUTE IN ORDER TO AVOID A FORCED
SALE. 

FN3  THE FIRST OPINION ALSO HELD THE STATUTE INVALID IN ITS ENTIRETY
(ON THE AUTHORITY OF UNION SULPHUR CO. V. REID, 17 F.SUPP.  27), AS A
PROPERTY TAX LAID AT A RATE PROHIBITED BY THE STATE CONSTITUTION, AND
AS A DENIAL OF DUE PROCESS IN PROVIDING FOR COLLECTION WITHOUT ANY
REVIEW OF THE ACTION OF THE STATE SUPERVISOR OF PUBLIC ACCOUNTS.  AFTER
THE DECISION IN STATE V. H.L. HUNT, INC., 182 LA. 1073; 162 SO. 177,
HOLDING THE TAX A LICENSE RATHER THAN A PROPERTY TAX, CONSONANT WITH
BOTH THE STATE CONSTITUTION AND FOURTEENTH AMENDMENT, THE DISTRICT
COURT GRANTED A REHEARING.  THE SECOND OPINION CONCEDED THE GENERAL
VALIDITY OF THE ACT, BUT HELD IT AN UNDUE BURDEN ON INTERSTATE COMMERCE
AS APPLIED TO APPELLEE. 

FN4  "SECTION 3.  IN ADDITION TO ALL OTHER TAXES OF EVERY KIND
IMPOSED BY LAW, EVERY PERSON, FIRM, CORPORATION OR ASSOCIATION OF
PERSONS ENGAGED IN THE STATE OF LOUISIANA IN ANY BUSINESS OR
OCCUPATION, WHICH PERSON, FIRM, CORPORATION OR ASSOCIATION OF PERSONS
USES IN THE CONDUCT OF SUCH BUSINESS OR OCCUPATION, AT ANY TIME,
ELECTRICAL OR MECHANICAL POWER OF MORE THAN TEN HORSEPOWER AND DOES NOT
PROCURE ALL THE POWER REQUIRED IN THE CONDUCT OF SUCH BUSINESS OR
OCCUPATION FROM A PERSON, FIRM, CORPORATION OR ASSOCIATION OF PERSONS
SUBJECT TO THE TAX IMPOSED BY SECTION 1 OR SECTION 2 OF THIS ACT, SHALL
BE SUBJECT TO THE PAYMENT OF AN EXCISE, LICENSE OR PRIVILEGE TAX OF ONE
DOLLAR ($1.00) PER ANNUM FOR EACH HORSEPOWER OF CAPACITY OF THE
MACHINERY OR APPARATUS, KNOWN AS THE 'PRIME MOVER' OR 'PRIME MOVERS',
OPERATED BY SUCH PERSON, FIRM, CORPORATION OR ASSOCIATION OF PERSONS,
FOR THE PURPOSE OF PRODUCING POWER FOR USE IN THE CONDUCT OF SUCH
BUSINESS OR OCCUPATION; PROVIDED THAT ANY USER OF POWER SECURING ALL OR
ANY PART OF THE POWER REQUIRED IN THE CONDUCT OF THE BUSINESS OR
OCCUPATION OF SUCH USER FROM A PERSON, FIRM, CORPORATION OR ASSOCIATION
OF PERSONS SUBJECT TO THE TAX IMPOSED BY SECTION 1 OR SECTION 2 OF THIS
ACT, SHALL NOT BE LIABLE FOR THE TAX IMPOSED BY THIS SECTION 3, OR FOR
A GREATER TAX UNDER THIS SECTION 3, AS THE CASE MAY BE, BECAUSE OF THE
EMPLOYMENT OF STAND-BY POWER FACILITIES BY SUCH USER DURING PERIODS OF
FAILURE OF THE SUPPLY OF PURCHASED POWER; AND PROVIDED FURTHER THAT ANY
PERSON, FIRM, CORPORATION OR ASSOCIATION OF PERSONS THE PRINCIPAL USE
OF WHOSE ELECTRIC FACILITIES IS THE GENERATION OF ELECTRICITY FOR SALE,
SHALL NOT BE SUBJECT TO AN ADDITIONAL TAX UNDER THIS SECTION 3 ON THE
HORSEPOWER CAPACITY OF ANY MACHINERY OR APPARATUS USED IN THE
GENERATION OF ELECTRICITY; AND PROVIDED FURTHER THAT IN COMPUTING THE
TAX IMPOSED BY THIS SECTION 3, THERE SHALL BE EXCLUDED FROM THE
HORSEPOWER CAPACITY OF ALL MACHINERY AND APPARATUS OPERATED, THAT PART
OF SUCH CAPACITY USED IN A MECHANICAL, AGRICULTURAL OR HORTICULTURAL
PURSUIT, OR ANY OTHER OCCUPATION EXEMPT FROM A LICENSE TAX UNDER
OPERATING A SAWMILL OR A MILL FOR GRINDING SUGARCANE OR PRODUCING RAW
SUGAR, OR IN CONDUCTING ANY BUSINESS OF SELLING ELECTRICITY OR ANY
BUSINESS CONDUCTED UNDER ANY FRANCHISE OR PERMIT GRANTED BY THE STATE
OF LOUISIANA OR ANY SUBDIVISION THEREOF, OR IN PROPELLING OR MOTIVATING
ANY AUTOMOBILE, TRUCK, TUG, VESSEL, OR OTHER SELF-PROPELLED VEHICLE, ON
LAND, WATER OR AIR." 

FN5  COONEY V. MOUNTAIN STATES TEL. CO., 294 U.S. 384, 392, AND CASES
CITED IN NOTE FOUR; PUGET SOUND STEVEDORING CO. V. STATE TAX COMM'N,
302 U.S. 90; FISHER'S BLEND STATION V. STATE TAX CMM'N, 297 U.S. 650;
SPROUT V. SOUTH BEND, 277 U.S. 163, 170, 175. 

FN6  BUT SEE CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292, 296. 

MR. JUSTICE MCREYNOLDS IS OF THE OPINION THE DECREE SHOULD BE
AFFIRMED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR
DETERMINATION OF THIS CASE. 
..END :



ELECTRIC BOND CO. V. COMM'N., 303 U.S. 419 


NO. 636.  ARGUED FEBRUARY 7, 8, 9, 1938.  - DECIDED MARCH 28, 1938.  -
92 F.2D 580, AFFIRMED. 


1.  A SYSTEM OF HOLDING COMPANIES CONTROLLED, THROUGH STOCK OWNERSHIP,
THE OPERATIONS OF SUBSIDIARY COMPANIES WHICH SERVED GAS AND ELECTRICITY
TO THE PUBLIC IN MANY STATES, PARTLY IN INTERSTATE COMMERCE.  SOME OF
THE HOLDING COMPANIES WERE THEMSELVES PARTLY ENGAGED IN SELLING,
PURCHASING OR TRANSMITTING ELECTRICITY ACROSS STATE LINES.  THE SYSTEM
FURNISHED EXPERT SERVICE, AND PERFORMED CONSTRUCTION WORK, FOR THE
SUBSIDIARY UTILITIES, AND IN SO DOING MADE CONTINUOUS AND EXTENSIVE USE
OF THE MAILS AND THE INSTRUMENTALITIES OF INTERSTATE COMMERCE.  AND
SUCH INSTRUMENTALITIES WERE FROM TIME TO TIME USED IN OTHER
TRANSACTIONS, SUCH AS THE DISTRIBUTION OF SECURITIES.  HELD THAT THE
HOLDING COMPANIES WERE ENGAGED IN ACTIVITIES WITHIN THE REACH OF
CONGRESSIONAL REGULATION.  P. 431. 

2.  SECTION 5 OF TITLE I OF THE PUBLIC UTILITY ACT OF AUG. 26, 1935,
REQUIRES HOLDING COMPANIES, AS DEFINED, TO REGISTER WITH THE SECURITIES
AND EXCHANGE COMMISSION AND TO FILE A REGISTRATION STATEMENT GIVING
INFORMATION WITH RESPECT TO THE ORGANIZATION, FINANCIAL STRUCTURE AND
NATURE OF THE BUSINESS OF THE REGISTRANTS TOGETHER WITH VARIOUS DETAILS
OF OPERATIONS.  SECTION 4(A) PROHIBITS THE USE OF THE MAILS AND THE
FACILITIES OF INTERSTATE COMMERCE TO THOSE COMPANIES WHICH FAIL TO
REGISTER.  SECTION 32 PROVIDES THAT IF ANY PROVISION OF THE TITLE
SHOULD BE HELD INVALID THE OTHERS SHALL NOT BE AFFECTED.  HELD: 

(1)  THE SEPARABILITY CLAUSE REVERSES THE PRESUMPTION OF
INSEPARABILITY.  P. 433. 

(2)  SECTIONS 4(A) AND 5 ARE NOT SO WOVEN INTO THE TITLE THAT THERE
IS ANY INHERENT OR PRACTICAL DIFFICULTY IN ENFORCING THEM SEPARATELY
WHILE RESERVING ALL QUESTIONS AS TO THE VALIDITY OF THE OTHER
PROVISIONS OF THE TITLE.  P. 434. 

(3)  ALTHOUGH REGISTRATION UNDERLIES AND PRECEDES THE APPLICATION OF
THE OTHER REGULATORY PROVISIONS, SECS. 4(A) AND 5 WERE INTENDED TO BE
INDEPENDENTLY OPERATIVE AND ENFORCEABLE AS REGULATIONS REQUIRING
HOLDING COMPANIES TO FURNISH THE INFORMATION CALLED FOR BY SEC. 5(B) IN
REGISTRATION STATEMENTS.  P. 435. 

(4)  THE LEGISLATIVE HISTORY OF THE ACT IS CONSISTENT WITH THIS
VIEW.  P. 438. 

3.  CORPORATIONS ENGAGED IN INTERSTATE COMMERCE CAN NOT ESCAPE
REGULATION BY ACTING THROUGH SUBSIDIARIES.  P. 440. 

4.  IN VIEW OF THE RELATION OF THE HOLDING COMPANIES IN THIS CASE TO
INTERSTATE COMMERCE, AND TO THE NATIONAL ECONOMY, CONGRESS HAD POWER TO
EXACT OF THEM THE INFORMATION REQUIRED BY SEC. 5 OF TITLE I OF THE
PUBLIC UTILITY ACT, AND TO VISIT THEIR FAILURE WITH THE PENALTIES
PRESCRIBED BY SEC. 4(A), RESTRAINING THEIR USE OF INTERSTATE COMMERCE
AND POSTAL FACILITIES WHILE THEY REMAIN HOLDING COMPANIES AND REFUSE TO
REGISTER.  P. 439. 

5.  IN A SUIT BY THE SECURITIES AND EXCHANGE COMMISSION UNDER SEC.
18(F), TITLE I, PUBLIC UTILITY ACT, BROUGHT TO ENFORCE ONLY COMPLIANCE
WITH SECS. 4(A) AND 5, THE REQUIREMENTS AND VALIDITY OF THE OTHER
PROVISIONS OF THE TITLE NOT BEING INVOLVED IN THE ACTUAL CONTROVERSY,
HELD THAT A COUNTERCLAIM AND CROSS-BILL BY WHICH THE DEFENDANTS
INVOKED THE FEDERAL DECLARATORY JUDGMENT ACT, AND SOUGHT TO HAVE THE
OTHER PROVISIONS DECLARED UNCONSTITUTIONAL, WAS PROPERLY DISMISSED.  P.
443. 

ELECTRIC BOND & SHARE CO. ET AL. V. SECURITIES AND EXCHANGE COMM'N ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 681, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
DISTRICT COURT WHICH GRANTED AN INJUNCTION AND DISMISSED A COUNTERCLAIM
AND CROSS-BILL IN A SUIT AGAINST NUMEROUS CORPORATIONS, BROUGHT BY THE
SECURITIES AND EXCHANGE COMMISSION UNDER SEC. 18(F) OF TITLE I OF THE
PUBLIC UTILITY ACT OF 1935.  OTHER CORPORATIONS HAD INTERVENED IN THE
DISTRICT COURT AS DEFENDANTS.  THE INJUNCTION FORBADE THE HOLDING
COMPANY DEFENDANTS, AS LONG AS THEY CONTINUED TO BE HOLDING COMPANIES
AND FAILED TO REGISTER, FROM USING THE MAILS OR THE FACILITIES OF
INTERSTATE COMMERCE AS BANNED BY SEC. 4(A) OF THE ACT.  THE
COUNTERCLAIM AND CROSS-BILL PRAYED FOR A DECLARATORY JUDGMENT DECLARING
THE WHOLE TITLE VOID, AND THAT THE COMMISSION AND ITS MEMBERS, THE
ATTORNEY GENERAL AND THE POSTMASTER GENERAL BE ENJOINED FROM ENFORCING
ANY OF ITS PROVISIONS.  SEE THE OPINION OF MACK, CIRCUIT JUDGE, IN 18
F.SUPP.  131. 

THE ACT IS WHOLLY INVALID BECAUSE OF ITS SCOPE AND ALLINCLUSIVE
PROVISIONS.  IT INSEPARABLY COMMINGLES INTRASTATE AND INTERSTATE
COMPANIES AND ACTIVITIES BY COMMON DEFINITIONS AND PROVISIONS AND
CANNOT BE CONFINED BY JUDICIAL LIMITATION TO COMPANIES OR ACTIVITIES
WITHIN THE POWER OF CONGRESS. 

IT MUST BE REGARDED AS A WHOLE AND READ IN ITS ENTIRETY TO DETERMINE
THE SEPARABILITY OF ANY SECTION OR SECTIONS.  PARTICULAR SECTIONS
CANNOT BE ISOLATED AND CONSIDERED IN A VACUUM WITHOUT REGARD TO THEIR
SETTING AND CONTEXT AND THEIR FUNCTIONAL RELATIONSHIP TO THE ACT AS A
WHOLE. 

THUS READING SECS. 4(A) AND 5(SEPARATED BY THE DECISION OF THE COURTS
BELOW FROM THE REGULATORY OR CONTROL PROVISIONS OF THE ACT) IT IS CLEAR
THAT THEY ARE NOT A SUBSTANTIVE REGULATION BY THEMSELVES BUT ARE PURELY
AUXILIARY TO SUCH REGULATORY OR CONTROL PROVISIONS, SPECIFICALLY SECS.
6 TO 13. 

THEIR INSEPARABILITY IS DEMONSTRATED BY THE DECLARED SCOPE AND
PURPOSE OF THE ACT (SEC. 1) WHICH MAKES MANIFEST THAT IT WAS THE
INTENTION OF CONGRESS BY ITS ENACTMENT TO CONTROL PUBLIC UTILITY
HOLDING COMPANIES, EVEN TO THE POINT OF THEIR DESTRUCTION. 

IN THIS LIGHT, SECS. 6 TO 13(THE CONTROL SECTIONS) ARE THE BONE AND
SINEW OF THE ACT.  THEY ARE THE SECTIONS WHICH CONGRESS RELIED UPON TO
ACCOMPLISH ITS DECLARED PURPOSE OF "ELIMINATING" THE EVILS IN PUBLIC
UTILITY HOLDING COMPANY SYSTEMS. 

IMPLEMENT THIS SYSTEM OF CONTROLS.  4(A) COERCES HOLDING COMPANIES TO
REGISTER AND THEREBY TO SUBMIT TO SUCH CONTROLS.  5(A) PROVIDES THE
MECHANICS FOR REGISTRATION, AND 5(B) PROVIDES FOR FURNISHING THE BASIC
INFORMATION CONCERNING THE COMPANIES UPON WHICH THE CONTROLS SPECIFIED
BY 6 TO 13 ARE TO OPERATE. 

REGULATION BY PUBLICITY.  NOT ONLY WAS NO SUCH INDEPENDENT FUNCTION
INTENDED, BUT, AS DEMONSTRATED BY THEIR RELATIONSHIP TO THE ACT, THEY
CANNOT PERFORM ANY SUCH FUNCTION.  THE CONTENTS OF THE REGISTRATION
STATEMENT PRESCRIBED BY SEC. 5(B) DO NOT RELATE TO, AND THUS CANNOT
REGULATE, THE ACTIVITIES DESCRIBED BY 4(A), BUT DO RELATE TO, AND
FURNISH THE BASIC INFORMATION FOR, THE APPLICATION OF THE CONTROL
SYSTEM.  THE CONTENTS OF THE REGISTRATION STATEMENT MAY NOT BE
DISCLOSED EXCEPT IN THE DISCRETION OF THE COMMISSION (22). 
CONSEQUENTLY, REGULATION BY PUBLICITY IS NOT ITS FUNCTION. 

IF SECS. 4(A) AND 5 BE REGARDED AS A SEPARABLE STATUTORY ENACTMENT,
THEY ARE NOT A CONSTITUTIONAL, VALID AND REASONABLE REGULATION OF
INTERSTATE COMMERCE AND THE MAILS.  SECTION 5(A) IS NOT A REGULATION OF
COMMERCE OR THE MAILS, NOR IS IT CLAIMED TO BE.  AS PREVIOUSLY SHOWN,
5(B) RELIED UPON ALONE TO SUPPORT THE PENALTIES OF 4(A) IS NOT
REGULATORY OF THE TRANSACTIONS THEREBY PROHIBITED NOR OF ANY BUSINESS
IN INTERSTATE COMMERCE. 

CONSIDERED ALONE, SEC. 5(B) IS A NAKED GRANT OF INQUISITORIAL OR
VISITATORIAL POWER AND IS INVALID BECAUSE NOT AN EXERCISE OF ANY
CONSTITUTIONAL POWER.  UNLESS THE COMMISSION HAS SOME FUNCTION TO
PERFORM WITH RESPECT TO THE INFORMATION FURNISHED, IT BECOMES AN
UNLAWFUL DELEGATION OF LEGISLATIVE POWER TO THE COMMISSION, SINCE THE
FORM AND CONTENT ARE TO BE PRESCRIBED ENTIRELY BY RULES AND REGULATIONS
OF THE COMMISSION IN ITS CONCEPT OF THE PUBLIC INTEREST AND THE
INTEREST OF INVESTORS AND CONSUMERS. 

PENALTY, CANNOT VALIDATE REGULATIONS WITH WHICH IT COERCES COMPLIANCE. 

ASSUMING POWER TO EXCLUDE HOLDING COMPANIES FROM INTERSTATE BUSINESS
AND NORMAL USE OF THE MAILS AND INSTRUMENTALITIES OF INTERSTATE
COMMERCE, SUCH POWER CANNOT BE USED TO COERCE COMPLIANCE WITH
UNCONSTITUTIONAL REGULATION.  STANDING BY ITSELF AS A NAKED PENALTY,
SEC. 4(A) CONTRAVENES THE FIFTH, SIXTH AND EIGHTH AMENDMENTS TO THE
CONSTITUTION. 

IF, THEREFORE, THE DECREE CANNOT BE SUPPORTED ON THE FOUNDATION OF
SECS. 4(A) AND 5 STANDING ALONE, IT IS NECESSARY TO FIND SUCH SUPPORT
IN THE SUBSTANTIVE REGULATORY SYSTEM OF THE ACT, I.E., THE CONTROLS OF
SECS. 6 TO 13. 

THESE SECTIONS DO NOT REGULATE INTERSTATE COMMERCE OR THE USE OF THE
MAILS.  THE COMPANIES WHICH COMPRISE THE ELECTRIC AND GAS UTILITY
INDUSTRY ARE NOT, AS SUCH, INSTRUMENTALITIES OR AGENTS OF INTERSTATE
COMMERCE, NOR IS THEIR BUSINESS, AS SUCH, INTERSTATE COMMERCE.  SOME OF
THE COMPANIES DO ENGAGE IN PARTICULAR BUSINESS OR TRANSACTIONS WHICH
CONSTITUTE INTERSTATE COMMERCE AND WHICH MAY BE REGULATED, BUT OTHER
COMPANIES DO NO SUCH BUSINESS.  THIS ACT PREDICATES THE REGULATION OF
ALL ALIKE MERELY ON THE HOLDING COMPANY RELATIONSHIP AND NOT UPON
ENGAGEMENT IN ANY BUSINESS OR ACTIVITIES WHICH CONSTITUTE OR AFFECT
INTERSTATE COMMERCE. 

NOR ARE THE CONTROL SECTIONS PREDICATED UPON OR CONFINED TO THE
REGULATION OF ACTIVITIES CONSTITUTING OR DIRECTLY AFFECTING INTERSTATE
COMMERCE OR THE USE OF THE MAILS.  THEY RELATE TO THE ISSUE AND SALE OF
SECURITIES (SECS. 6-7); TO THE ACQUISITION OF ASSETS OR SECURITIES
(SECS. 8-10); TO SUNDRY CORPORATE AND FINANCIAL TRANSACTIONS (SEC. 12);
TO THE REORGANIZATION OR DISSOLUTION OF HOLDING COMPANY SYSTEMS (SEC.
11); AND TO THE PERFORMANCE OF SERVICE, SALES AND CONSTRUCTION
CONTRACTS (SEC. 13).  IN NONE OF THESE SECTIONS IS INTERSTATE COMMERCE
OR THE USE OF THE MAILS A CONDITION OF THE REGULATION OF A PARTICULAR
TRANSACTION, NOR NEED THE COMPANY WHOSE TRANSACTIONS ARE SO REGULATED
BE ENGAGED IN INTERSTATE COMMERCE OR ACTIVITIES DIRECTLY AFFECTING SUCH
COMMERCE. 

CONVERSELY, THE ACT INVADES THE RESERVED POWERS OF THE STATES, IN
VIOLATION OF THE TENTH AMENDMENT, IN ITS INTERFERENCE WITH PURELY
INTRASTATE TRANSACTIONS, AND IN ITS CONTROL OF PURELY INTRASTATE
CORPORATIONS IN THE EXERCISE OF CHARTER POWERS GIVEN THEM BY THE STATES
OF THEIR INCORPORATION. 

THE ABSENCE OF ANY STANDARD FOR THE COMMISSION'S ACTION IN THE
VARIOUS MATTERS ENTRUSTED TO ITS CONTROL, EXCEPT ITS UNTRAMMELLED
CONCEPTION OF THE PUBLIC INTEREST AND THE INTEREST OF INVESTORS AND
CONSUMERS, MAKES THE ACT AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE
POWERS TO THE COMMISSION, IN VIOLATION OF ARTICLE I, SEC. 1 OF THE
CONSTITUTION. 

THE ACT IS LACKING IN DUE PROCESS AND OFFENDS AGAINST THE FIFTH
AMENDMENT.  FUNDAMENTALLY, ITS ESSENTIAL CONCEPT IS NOT REGULATION BY
PRESCRIBED STANDARDS OF LAW, BUT THE TRANSFER OF CONTROL OF
CORPORATIONS FROM THEIR DIRECTORS AND STOCKHOLDERS TO THE COMMISSION,
IN TERMS SO BROAD THAT MANAGEMENT IS TRANSFERRED FROM THE OWNERS OF THE
PROPERTY TO THE PUBLIC.  THIS POWER EXTENDS TO THE CONTROL OF THEIR
ESSENTIAL ACTIVITIES, AND EVEN TO THE DISPOSAL OF THEIR PROPERTY AND
ASSETS, AND THE REORGANIZATION OF THE COMPANIES THEMSELVES. 

IF THE DECREE OF THE COURT BELOW IS CORRECT IN REQUIRING DEFENDANTS
TO REGISTER, ON THE THEORY OF THE SEPARABILITY OF SECS. 4(A) AND 5
UNSUPPORTED BY THE CONTROL PROVISIONS, THE DEFENDANTS, BEING UNDER A
DUTY TO REGISTER, AND BEING THREATENED WITH IRREPARABLE INJURY BY THE
CONTROLS OF THE ACT, HAVE A RIGHT TO RELIEF UNDER THEIR CROSSBILL
EITHER BY WAY OF INJUNCTION OR DECLARATORY JUDGMENT, AGAINST THOSE
CONTROL SECTIONS WHICH BECOME APPLICABLE TO THEM IMMEDIATELY UPON
REGISTRATION. 

IF THE HOLDING COMPANIES THEMSELVES HAVE NOT THE RIGHT TO QUESTION
THESE CONTROLS BY THEIR CROSS-BILL, THE INTERVENING SUBSIDIARY
DEFENDANTS, IMMEDIATELY AFFECTED IN ALL RESPECTS EQUALLY WITH THEIR
PARENT HOLDING COMPANIES BY THE REGISTRATION OF THE LATTER, HAVE THE
RIGHT BY THEIR INTERVENTION AND CROSS-BILLS TO OBTAIN AN ADJUDICATION
AS TO WHETHER OR NOT THE CONTROLS OF THE ACT TO WHICH THEY ARE THEREBY
SUBJECTED ARE CONSTITUTIONAL AS TO THEM. 

THE BILL AND ANSWER INVOLVE SOLELY THE VALIDITY OF THE REGISTRATION
PROVISIONS. 

THE REGISTRATION PROVISIONS ARE NOT INHERENTLY INSEPARABLE FROM THE
OTHER PROVISIONS OF THE ACT.  COMPLIANCE WITH THEM DOES NOT PREJUDICE
THE RIGHT OF A REGISTRANT TO CONTEST OTHER PROVISIONS.  THEY ARE
CAPABLE OF SEPARATE OPERATION AND ENFORCEMENT. 

THE LEGISLATIVE HISTORY OF THE ACT CORROBORATES THE PRESUMPTION OF
SEPARABILITY. 

THE REGISTRATION PROVISIONS ARE A SUBSTANTIAL REGULATORY MEASURE IN
THEMSELVES AND WOULD NOT BE TOO FRAGMENTARY TO STAND ALONE. 

DEFENDANTS CAN NOT ATTACK PROVISIONS OF THE ACT NOT OTHERWISE IN
CONTROVERSY MERELY TO SHOW THAT THE REGISTRATION PROVISIONS WOULD BE
TOO FRAGMENTARY TO STAND IF SUCH OTHER PROVISIONS WERE INVALID. 

THE REGISTRATION PROVISIONS ARE A VALID EXERCISE OF THE FEDERAL POWER
OVER INTERSTATE COMMERCE AND THE MAILS. 

THE ACTIVITIES ENUMERATED IN SEC. 4(A) ARE SUBJECT TO FEDERAL
REGULATION BY THE INFORMATORY PROCESS. 

CONGRESS HAS THE POWER TO PREVENT THE USE OF THE CHANNELS OF
INTERSTATE COMMERCE AND THE POSTAL FACILITIES FOR A PURPOSE OR IN A
MANNER DEEMED CONTRARY TO SOUND PUBLIC POLICY. 

THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE IS NOT LIMITED TO
FORBIDDING THE TRANSPORTATION OF ARTICLES INTRINSICALLY HARMFUL. 

THE QUESTION OF THE POWER OF CONGRESS TO MEET EVILS WHICH ARE NOT
SPREAD OR PERPETUATED BY THE USE OF THE CHANNELS OF INTERSTATE COMMERCE
IS NOT HERE INVOLVED. 

THE POWER OF CONGRESS TO REGULATE THE USE OF THE CHANNELS OF
INTERSTATE COMMERCE OR THE MAILS IS NOT ABRIDGED BY THE FACT THAT THE
USE OF SUCH CHANNELS OF INTERCOURSE IS INCIDENTAL OR SPORADIC OR IS NOT
THE MAJOR ACTIVITY OF THE USER. 

THE REGISTRATION PROVISIONS DO NOT VIOLATE ANY RIGHTS GUARANTEED TO
THE DEFENDANTS UNDER THE FIFTH AMENDMENT. 

THEY INVOLVE NO UNCONSTITUTIONAL DELEGATION OF POWER. 

THE CROSS-BILL PRESENTED NO CASE OR CONTROVERSY BUT SOUGHT ONLY AN
ADVISORY OPINION ON HYPOTHETICAL FACTS. 

AS A SUIT FOR AN INJUNCTION, THE CROSS-BILL, IN THE ABSENCE OF
THREATS OF ENFORCEMENT BY THE CROSS-DEFENDANTS, PRESENTS NO CONTROVERSY
WITH THEM. 

AS A SUIT FOR A DECLARATORY JUDGMENT, THE CROSS-BILL, IN THE ABSENCE
OF THREATS OF ENFORCEMENT BY THE CROSS-DEFENDANTS, PRESENTS NO "ACTUAL
CONTROVERSY" WITH THEM. 

EVEN IF THE CROSS-BILL HAD PRESENTED A CONTROVERSY WITH THE CROSS
DEFENDANTS, THE DISTRICT COURT COULD NOT PROPERLY HAVE GRANTED
DEFENDANTS AN INJUNCTION OR DECLARATORY JUDGMENT BECAUSE THEY HAVE
PROVED NO DAMAGE, IRREPARABLE OR OTHERWISE. 

DEFENDANTS DO NOT SEEK EQUITY WITH CLEAN HANDS IN BRINGING, BEFORE
THEY HAVE REGISTERED, A CROSS-BILL WHICH PRESUPPOSES THAT THEIR FAILURE
TO REGISTER IS UNLAWFUL. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE SECURITIES AND EXCHANGE COMMISSION BROUGHT THIS SUIT TO ENFORCE
THE PROVISIONS OF SECS. 4(A) AND 5 OF THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935.  49 STAT. 803, 812, 813.  THESE SECTIONS PROVIDE
FOR REGISTRATION WITH THE COMMISSION OF HOLDING COMPANIES, AS DEFINED,
SEC. 5(A), AND PROHIBIT THE USE OF THE MAILS AND THE INSTRUMENTALITIES
OF INTERSTATE COMMERCE TO THOSE COMPANIES WHICH FAIL TO REGISTER.  SEC.
4(A).  SECTION 5(B) PROVIDES FOR THE FILING OF A REGISTRATION STATEMENT
GIVING INFORMATION WITH RESPECT TO THE ORGANIZATION, FINANCIAL
STRUCTURE AND NATURE OF THE BUSINESS OF THE REGISTRANT, TOGETHER WITH
VARIOUS DETAILS OF OPERATIONS. 

DEFENDANTS, INCLUDING INTERVENORS, CONTESTED THE VALIDITY OF THESE
PROVISIONS AND SOUGHT BY CROSS BILL A DECLARATORY JUDGMENT THAT THE ACT
WAS INVALID IN ITS ENTIRETY, AS BEING IN EXCESS OF THE POWERS GRANTED
TO CONGRESS BY SEC. 8 OF ARTICLE I, AND IN VIOLATION OF SEC. 1 OF
ARTICLE I AND OF THE FIFTH AND TENTH AMENDMENTS, OF THE CONSTITUTION OF
THE UNITED STATES.  THE DISTRICT COURT SUSTAINED THE VALIDITY OF SECS.
4(A) AND 5, AND GRANTED AN INJUNCTION ACCORDINGLY.  THE CROSS BILL WAS
DISMISSED FOR WANT OF EQUITY AND FOR LACK OF ANY ACTUAL CONTROVERSY
WITHIN THE MEANING OF THE FEDERAL DECLARATORY JUDGMENT ACT OF 1934.  18
F.SUPP.  131.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE DECREE.  92
F.(2D) 580.  CERTIORARI WAS GRANTED. 

THE SUIT WAS BROUGHT AGAINST THE ELECTRIC BOND AND SHARE COMPANY AND
FOURTEEN ASSOCIATED PUBLIC UTILITY COMPANIES.  OF THESE, IT APPEARS
THAT SEVEN HAVE CEASED TO BE HOLDING COMPANIES WITHIN THE MEANING OF
THE ACT, TWO  FN1  BEFORE THE CAUSE WAS HEARD BY THE DISTRICT COURT AND
FIVE  FN2 SINCE THE DECREE.  THE REMAINING COMPANIES AGAINST WHOM THE
DECREE OF INJUNCTION RUNS ARE ELECTRIC BOND AND SHARE COMPANY, AMERICAN
GAS AND ELECTRIC COMPANY, AMERICAN POWER & LIGHT COMPANY, NATIONAL
POWER & LIGHT COMPANY, ELECTRIC POWER & LIGHT CORPORATION, LEHIGH POWER
SECURITIES CORPORATION, UTAH POWER & LIGHT COMPANY, AND PACIFIC POWER &
LIGHT COMPANY.    THE DECREE PROVIDES IN SUBSTANCE, AS TO EACH OF THESE
DEFENDANTS, THAT AFTER A DAY SPECIFIED AND UNTIL SUCH DEFENDANT SHALL
CEASE TO BE A HOLDING COMPANY AS DEFINED IN THE ACT, OR SHALL REGISTER
WITH THE SECURITIES AND EXCHANGE COMMISSION AS PROVIDED IN SEC. 5(A),
IT SHALL NOT CARRY ON ANY OF THE ACTIVITIES IN INTERSTATE COMMERCE OR
THROUGH THE MAILS WHICH ARE FORBIDDEN TO NON-REGISTERED HOLDING
COMPANIES BY PARAGRAPHS (1), (2), (3), (4) AND (6) OF SEC. 4(A).  THE
PROVISIONS OF SECS. 4(A) AND 5 ARE SET FORTH IN THE MARGIN.  FN3 

THE DECREE FURTHER PROVIDES THAT THE INJUNCTION AND THE DISMISSAL OF
THE CROSS BILL SHALL BE WITHOUT PREJUDICE "TO ANY RIGHTS OR REMEDIES IN
LAW OR IN EQUITY" WHICH DEFENDANTS MAY HAVE AFTER REGISTRATION, AND
LEAVES DEFENDANTS FREE TO CHALLENGE THE VALIDITY OF ANY OF THE
PROVISIONS OF THE ACT OTHER THAN SECS. 4(A) AND 5.  THE DISMISSAL OF
THE CROSS BILL IS ALSO DECLARED TO BE WITHOUT PREJUDICE "TO ANY RIGHTS
OR REMEDIES IN LAW OR IN EQUITY" WHICH THE INTERVENING DEFENDANTS "MAY
HAVE OR BE ENTITLED TO UPON THE ACT BEING MADE APPLICABLE TO THEM BY
THE REGISTRATION OF ANY HOLDING COMPANY OF WHICH THEY ARE SUBSIDIARY
COMPANIES."  ALL RIGHTS OF DEFENDANTS, INCLUDING INTERVENORS, ARE THUS
FULLY RESERVED WITH RESPECT TO THE APPLICATION TO THEM OF ANY PROVISION
OF THE ACT OUTSIDE OF THOSE CONTAINED IN THE PARTICULAR SECTIONS WHICH
ARE ENFORCED BY THE DECREE. 

PETITIONERS INSIST THAT THE ACT IS INVALID AS A WHOLE; THAT THE
PROVISIONS OF SECS. 4(A) AND 5 ARE NOT SEPARABLE FROM THE REMAINDER;
THAT THESE PROVISIONS, IF SEPARATELY CONSIDERED, DO NOT CONSTITUTE A
VALID REGULATION OF INTERSTATE COMMERCE AND THE MAILS; AND THAT THE
CROSS BILL PRESENTED A CONTROVERSY UPON THE MERITS OF WHICH THE
DEFENDANTS, INCLUDING INTERVENORS, WERE ENTITLED TO THE JUDGMENT OF THE
COURT. 

FIRST.  THE INITIAL QUESTION IS WHETHER THE DEFENDANT COMPANIES,
AGAINST WHICH THE DECREE FOR INJUNCTION RUNS, ARE ENGAGED IN ACTIVITIES
WHICH BRING THEM WITHIN THE AMBIT OF CONGRESSIONAL AUTHORITY.  UPON
THIS POINT THERE SEEMS TO BE NO SERIOUS CONTROVERSY, AND FOR THE
PURPOSE OF THE PRESENT DECISION WE DO NOT FIND IT NECESSARY TO MAKE A
COMPREHENSIVE STATEMENT OF THE CORPORATE SETUP AND OPERATIONS OF THE
RESPECTIVE DEFENDANTS.  THE FACTS WERE FULLY SET FORTH IN AN ELABORATE
STIPULATION WHICH UNDERLAY THE FINDINGS OF FACT OF THE TRIAL COURT.  A
BRIEF STATEMENT ADDRESSED TO THE POINT NOW UNDER CONSIDERATION WILL
SUFFICE. 

ELECTRIC BOND AND SHARE COMPANY IS STYLED IN THE FINDINGS AS "THE TOP
HOLDING COMPANY" IN "A HOLDING-COMPANY SYSTEM" IN WHICH ALL THE OTHER
DEFENDANTS AND INTERVENING DEFENDANTS TOGETHER WITH NUMEROUS OTHER
COMPANIES ARE SUBSIDIARIES.  ELECTRIC BOND AND SHARE COMPANY OWNS
SUBSTANTIAL MINORITIES OF THE VOTING STOCKS OF THE DEFENDANTS AMERICAN
GAS AND ELECTRIC COMPANY, AMERICAN POWER & LIGHT COMPANY, NATIONAL
POWER & LIGHT COMPANY, AND ELECTRIC POWER & LIGHT CORPORATION.  THESE
COMPANIES IN TURN OWN DIRECTLY OR THROUGH SUBHOLDING COMPANIES
SUBSTANTIAL MAJORITIES, IN SOME CASES APPROXIMATING COMPLETE OWNERSHIP
AND IN ALL CASES SUFFICIENT TO INSURE VOTING CONTROL, OF THE COMMON
STOCKS OF OPERATING GAS AND ELECTRIC UTILITIES.  THE "ELECTRIC
OPERATIONS" OF SUBSIDIARIES IN THE BOND AND SHARE SYSTEM ARE CONDUCTED
IN THIRTY-TWO STATES.  SOME OPERATE ONLY WITHIN A SINGLE STATE, SOME IN
TWO OR MORE STATES, TRANSMITTING ENERGY ACROSS STATE LINES FOR THEIR
OWN ACCOUNT, AND SOME SELL ENERGY AT WHOLESALE IN INTERSTATE COMMERCE. 

UNTIL SHORTLY PRIOR TO THE INSTITUTION OF THIS SUIT ELECTRIC BOND AND
SHARE COMPANY RENDERED SERVICES TO BOTH HOLDING AND OPERATING COMPANIES
UNDER SERVICE CONTRACTS.  AFTER THE APPROVAL OF THE ACT, IT FORMED A
WHOLLY-OWNED SUBSIDIARY, EBASCO SERVICES INCORPORATED, TO TAKE OVER THE
SERVICING OF THE OPERATING COMPANIES, AND THE SERVICING OF THE HOLDING
COMPANIES WAS DISCONTINUED.  THE PERFORMANCE OF SERVICE CONTRACTS BY
EBASCO, OPERATING AS A SUBSIDIARY AND ON BEHALF OF ELECTRIC BOND AND
SHARE COMPANY, CONSTITUTES AN EXTENSIVE BUSINESS IN RENDERING
CONTINUOUS EXPERT, SPECIALIZED, AND TECHNICAL SERVICE, ADVICE, AND
ASSISTANCE TO THE SERVICED COMPANIES UPON EVERY PHASE OF THE UTILITY
ENTERPRISE.  PHOENIX ENGINEERING CORPORATION, A WHOLLY-OWNED SUBSIDIARY
OF EBASCO, PERFORMS CONSTRUCTION WORK FOR SUBSIDIARY PUBLIC-UTILITY
COMPANIES IN THE BOND AND SHARE SYSTEM.  THE AMERICAN GAS AND ELECTRIC
COMPANY ALSO PERFORMS SERVICES FOR SUBSIDIARY OPERATING COMPANIES. 

WE NEED NOT GO FURTHER IN THE DESCRIPTION OF THE OPERATIONS OF THESE
COMPANIES, AS PETITIONERS CONCEDE THAT THE CARRYING OUT OF THESE
SERVICE CONTRACTS, AS FOUND BY THE TRIAL COURT, INVOLVES CONTINUOUS AND
EXTENSIVE USE OF THE MAILS AND INSTRUMENTALITIES OF INTERSTATE
COMMERCE, ALTHOUGH PETITIONERS ARE CAREFUL TO QUALIFY THE CONCESSION BY
SAYING THAT THEY AGREE WITH THE TRIAL COURT THAT "THIS IS NOT TO SAY
THAT THE ENTIRE BUSINESS OF EBASCO OR AMERICAN GAS CONSTITUTES
INTERSTATE COMMERCE AND IS THEREFORE SUBJECT TO UNLIMITED FEDERAL
REGULATION." 

PETITIONERS ALSO STATE WITH RESPECT TO AMERICAN POWER & LIGHT
COMPANY, NATIONAL POWER & LIGHT COMPANY, AND ELECTRIC POWER & LIGHT
CORPORATION, THAT WHILE IT IS INSISTED THAT THESE ARE SIMPLY INVESTMENT
HOLDING COMPANIES AND THAT THEIR BUSINESS AS SUCH IS NOT INTERSTATE
COMMERCE, THEY MAY "FROM TIME TO TIME ENGAGE IN TRANSACTIONS IN
INTERSTATE COMMERCE OR MAY USE THE INSTRUMENTALITIES OF INTERSTATE
COMMERCE IN PARTICULAR TRANSACTIONS, SUCH AS THE DISTRIBUTION OF
SECURITIES, IN SUCH MANNER THAT THOSE PARTICULAR ACTIVITIES BECOME THE
SUBJECT OF FEDERAL REGULATION." 

THE TRIAL COURT FOUND THAT ONE OR MORE SUBSIDIARY ELECTRIC-UTILITY
COMPANIES OF LEHIGH POWER SECURITIES CORPORATION "ARE REGULARLY ENGAGED
IN SELLING, PURCHASING, OR TRANSMITTING SOME ELECTRIC ENERGY ACROSS
STATE LINES"; AND THAT UTAH POWER & LIGHT COMPANY AND PACIFIC POWER &
LIGHT COMPANY ARE BOTH HOLDING COMPANIES AND ELECTRIC-UTILITY COMPANIES
AND THAT THE TRANSMISSION OF ELECTRIC ENERGY ACROSS STATE LINES IS PART
OF THE ENTERPRISE OF EACH. 

IN THE LIGHT OF THE FINDINGS SUPPORTED BY THE STIPULATION, WE
PERCEIVE NO GROUND FOR A CONCLUSION THAT THE DEFENDANT COMPANIES WHICH
ARE ENJOINED ARE NOT ENGAGED IN ACTIVITIES WITHIN THE REACH OF THE
CONGRESSIONAL POWER. 

SECOND.  CHALLENGING THE VALIDITY OF THE ACT IN ITS ENTIRETY,
PETITIONERS CONTEND THAT SECS. 4(A) AND 5 CANNOT BE SEPARATED FROM THE
OTHER PROVISIONS OF THE ACT AND THUS BE SEPARATELY SUSTAINED AND
ENFORCED.  THEY URGE THAT THESE SECTIONS ARE PURELY AUXILIARY TO THE
SUBSEQUENT OR "CONTROL PROVISIONS" OF THE ACT (SECS. 6 TO 13); THAT THE
OBJECT OF THIS SUIT IS TO COMPEL SUBMISSION TO AN INTEGRATED SYSTEM OF
CONTROL AND THAT THE SOLE QUESTION IS WHETHER THE ACT AS A WHOLE, "OR
ENOUGH TO ACCOMPLISH ITS GENERAL PLAN," IS CONSTITUTIONAL.  THEY INSIST
THAT THIS QUESTION MUST BE DETERMINED BEFORE THEY MAY BE COMPELLED TO
REGISTER. 

(1)  IN THIS BRANCH OF THE CASE, PETITIONERS ADDRESS THEIR ARGUMENT
TO THE INTENT OF CONGRESS, RATHER THAN TO ITS POWER.  BUT CONGRESS HAS
DEFINED ITS INTENT AS TO SEPARABILITY.  SECTION 32 OF THE ACT
PROVIDES: 

"IF ANY PROVISION OF THIS TITLE  FN4  OR THE APPLICATION OF SUCH
PROVISION TO ANY PERSON OR CIRCUMSTANCES SHALL BE HELD INVALID, THE
REMAINDER OF THE TITLE AND THE APPLICATION OF SUCH PROVISION TO PERSONS
OR CIRCUMSTANCES OTHER THAN THOSE AS TO WHICH IT IS HELD INVALID SHALL
NOT BE AFFECTED THEREBY." 

THIS PROVISION REVERSES THE PRESUMPTION OF INSEPARABILITY - THAT THE
LEGISLATURE INTENDED THE ACT TO BE EFFECTIVE AS AN ENTIRETY OR NOT AT
ALL.  CONGRESS HAS ESTABLISHED THE OPPOSITE PRESUMPTION OF
DIVISIBILITY.  WILLIAMS V. STANDARD OIL CO., 278 U.S. 235, 242; UTAH
POWER & LIGHT CO. V. PFOST, 286 U.S. 165, 184; CHAMPLIN REFINING CO. V.
CORPORATION COMMISSION, 286 U.S. 210, 235.  CONGRESS HAS THUS SAID THAT
THE STATUTE IS NOT AN INTEGRATED WHOLE, WHICH AS SUCH MUST BE SUSTAINED
OR HELD INVALID.  ON THE CONTRARY, WHEN VALIDITY IS IN QUESTION,
DIVISIBILITY AND NOT INTEGRATION IS THE GUIDING PRINCIPLE.  INVALID
PARTS ARE TO BE EXCISED AND THE REMAINDER ENFORCED.  WHEN WE ARE
SEEKING TO ASCERTAIN THE CONGRESSIONAL PURPOSE, WE MUST GIVE HEED TO
THIS EXPLICIT DECLARATION. 

(2)  IT IS EVIDENT THAT THE PROVISIONS OF SECS. 4(A) AND 5 ARE NOT SO
INTERWOVEN WITH THE OTHER PROVISIONS OF THE ACT THAT THERE IS ANY
INHERENT OR PRACTICAL DIFFICULTY IN THE SEPARATION AND INDEPENDENT
ENFORCEMENT OF THE FORMER WHILE RESERVING ALL QUESTIONS AS TO THE
VALIDITY OF THE LATTER.  THE ADMINISTRATIVE CONSTRUCTION OF THE STATUTE
WAS FORMULATED IN THAT VIEW.  RULE 4 OF THE COMMISSION PROVIDED THAT
ANY PERSON, IN FILING ANY STATEMENT UNDER THE ACT, MIGHT INCLUDE AN
EXPRESS RESERVATION OF CONSTITUTIONAL AND LEGAL RIGHTS.  IT WAS ON THE
BASIS OF THAT CONSTRUCTION THAT THIS SUIT WAS PROSECUTED AND WAS
LIMITED TO THE ENFORCEMENT OF SECS. 4(A) AND 5.  ALL RIGHTS AND
REMEDIES AS TO ALL OTHER PROVISIONS OF THE ACT ARE, AS WE HAVE SEEN,
EXPRESSLY RESERVED TO THE DEFENDANTS BY THE DECREE.  NOR CAN IT BE SAID
THAT THIS RESERVATION IS ILLUSORY.  IF THIS DECREE IS AFFIRMED, IT WILL
CONSTITUTE A SPECIFIC ADJUDICATION THAT REGISTRATION WILL BE WITHOUT
PREJUDICE TO FUTURE CHALLENGE OF THE VALIDITY OF ANY PROVISION OF THE
ACT, OR REQUIREMENT OF THE COMMISSION, OUTSIDE OF SECS. 4(A) AND 5.  IT
IS IDLE TO CONTEND THAT REGISTRATION PURSUANT TO THE DECREE WILL
SUBJECT THE DEFENDANTS TO THE ACT AS AN INTEGRATED WHOLE OR BRING INTO
OPERATION AGAINST THEM WHAT THE DECREE EXPRESSLY EXCLUDES. 

(3)  ALTHOUGH THERE IS NO PRACTICAL OBSTACLE TO THE SEPARATE
ENFORCEMENT OF THE PROVISIONS OF SECS. 4(A) AND 5, THE ARGUMENT IS
PRESSED THAT IN REASON AND DESIGN THERE IS AN ESSENTIAL UNITY OF THESE
PROVISIONS AND THE SO-CALLED "CONTROL PROVISIONS" WHICH FORBIDS SUCH
ENFORCEMENT.  PETITIONERS URGE THAT SECS. 4(A) AND 5 "MERELY IMPLEMENT
THE SYSTEM OF CONTROLS"; THAT THE POLICY OF THE ACT AS DECLARED IN SEC.
1(C) IS TO COMPEL "THE SIMPLIFICATION AND THE ELIMININATION OF HOLDING
COMPANY SYSTEMS"; AND THAT THE OBJECTIVE CANNOT BE ATTAINED BY
INFORMATORY PROCESSES BUT ONLY BY SUCH REGULATION OR CONTROL AS WILL
"ELIMINATE" THE EVILS. 

THE GOVERNMENT REPLIES THAT WHILE THE OTHER PROVISIONS ARE APPLICABLE
ONLY TO REGISTERED COMPANIES AND THEIR SUBSIDIARIES, SECS. 4(A) AND 5
ARE DRAFTED SO AS TO BE OPERATIVE INDEPENDENTLY AND THAT THE
REGISTRATION PROVISIONS THEMSELVES CONSTITUTE "AN EFFECTIVE INSTRUMENT
OF INFORMATORY REGULATION."  "IF, FOR EXAMPLE," ARGUES THE GOVERNMENT,
"SECTION 11 DEALING WITH CORPORATE REORGANIZATIONS WERE ADJUDGED
INVALID, THERE IS NO INHERENT REASON WHY THE OTHER REGULATORY
PROVISIONS COULD NOT BE ENFORCED AS THE CONGRESS PROVIDED.  AND IF
IS NO INHERENT REASON WHY THE REGISTRATION PROVISIONS, OR SECTIONS 6
AND 7 REGULATING SECURITY ISSUES, OR SECTIONS 8, 9 AND 10 DEALING WITH
UTILITY ACQUISITIONS, COULD NOT BE ADMINISTERED IN ACCORDANCE WITH
THEIR TERMS."  "LIKEWISE," IT IS SAID, "THE PURPOSE AND EFFECT OF THE
REGISTRATION PROVISION - REGULATION BY THE INFORMATORY PROCESS - ARE
THE SAME WHETHER REGISTRATION IS CONSIDERED AS A SEPARATE STATUTE
REGULATING UTILITY HOLDING COMPANIES, OR AS BUT ONE PART OF A
COMPREHENSIVE STATUTE CONTAINING MANY DIFFERENT REGULATIONS OF UTILITY
HOLDING COMPANIES."  MOREOVER, AS OBSERVED BY THE DISTRICT COURT, SEC.
1(C) IN ITS ENTIRETY NEGATIVES ANY CONCLUSION THAT THE SIMPLIFICATION
AND ELIMINATION OF HOLDING COMPANIES "IS THE SOLE POLICY OR THE WHOLE
END AND OBJECT OF THE ACT, WHICH, AS STATED, IS 'TO MEET THE PROBLEMS
AND ELIMINATE THE EVILS, AS ENUMERATED IN THIS SECTION, CONNECTED WITH
PUBLIC UTILITY HOLDING COMPANIES,'" AND THUS "SIMPLIFICATION AND
ELIMINATION" ARE BUT A MEANS AND NOT "THE EXCLUSIVE MEANS" DEEMED TO BE
ESSENTIAL FOR THE PURPOSE OF EFFECTUATING SUCH POLICY "IN WHOLE OR
INSOFAR AS MAY BE CONSTITUTIONALLY POSSIBLE." 

WE THINK THAT THE MANNER IN WHICH THE ACT IS FRAMED AND THE VARIETY
OF PROVISIONS IT CONTAINS, WHEN VIEWED IN THE LIGHT OF THE PRESUMPTION
OF DIVISIBILITY, JUSTIFY THAT CONCLUSION.  THE FACT THAT REGISTRATION
UNDERLIES THE APPLICATION OF SUBSEQUENT REQUIREMENTS OF THE STATUTE
DOES NOT PREVENT THE PROVISIONS OF SECS. 4(A) AND 5 FROM HAVING A
PURPOSE AND A VALUE OF THEIR OWN.  SECTION 5 NOT ONLY PROVIDES IN
PARAGRAPH (A) FOR THE FILING OF A "NOTIFICATION OF REGISTRATION" BUT
ALSO REQUIRES BY PARAGRAPH (B) EVERY REGISTERED HOLDING COMPANY TO
SUBMIT, WITHIN A REASONABLE TIME AFTER REGISTRATION, A "REGISTRATION
STATEMENT" CONTAINING A VARIETY OF DETAILED INFORMATION AS TO CORPORATE
STRUCTURE AND ACTIVITIES.  THUS SEC. 5(B) IS ITSELF A "CONTROL"
PROVISION, WHICH IS IMMEDIATELY OPERATIVE.  THE DUTY TO SUPPLY THE
DESCRIBED INFORMATION IS SEPARATELY AND DEFINITELY PRESCRIBED. 

IT CANNOT BE DENIED THAT A REQUIREMENT OF THIS SORT IS A REGULATION
WHICH CONGRESS COULD HAVE REGARDED AS IMPORTANT IN ITSELF AND COULD
HAVE MADE THE SUBJECT OF A SEPARATE STATUTE.  THE FACT THAT IT IS FOUND
IN A STATUTE IMPOSING OTHER REGULATIONS, OR THAT IT PRECEDES THE
APPLICATION OF THE OTHERS, DOES NOT DEPRIVE IT OF ITS ESSENTIAL
CHARACTER AND ITS CAPACITY TO STAND ALONE.  REGULATION REQUIRING THE
SUBMISSION OF INFORMATION IS A FAMILIAR CATEGORY.  INFORMATION BEARING
UPON ACTIVITIES WHICH ARE WITHIN THE RANGE OF CONGRESSIONAL POWER MAY
BE SOUGHT NOT ONLY BY CONGRESSIONAL INVESTIGATION AS AN AID TO
APPROPRIATE LEGISLATION, BUT THROUGH THE CONTINUOUS SUPERVISION OF AN
ADMINISTRATIVE BODY.  SEE INTERSTATE COMMERCE COMMISSION V. BRIMSON,
154 U.S. 447, 474; INTERSTATE COMMERCE COMMISSION V. GOODRICH TRANSIT
CO., 224 U.S. 194, 211; AMERICAN TELEPHONE & TELEGRAPH CO. V. UNITED
STATES, 299 U.S. 232, 235, 237.  CONGRESS MAY USE THIS METHOD IN
CONNECTION WITH A COMPREHENSIVE SCHEME OF REGULATION, AS, FOR EXAMPLE,
IN THE CASE OF THE INTERSTATE COMMERCE COMMISSION AND THE FEDERAL
COMMUNICATIONS COMMISSION; OR CONGRESS MAY EMPLOY THIS INFORMATORY
PROCESS INDEPENDENTLY.  AN ILLUSTRATION OF THE LATTER IS FOUND IN THE
STATUTE RELATING TO NEWSPAPERS AND PERIODICALS, ENJOYING THE PRIVILEGES
ACCORDED TO SECOND CLASS MAIL, WHICH REQUIRES AN ANNUAL STATEMENT
SETTING FORTH THE NAMES AND ADDRESSES OF THE EDITOR, PUBLISHER,
BUSINESS MANAGER, OWNER, AND, IN CASE OF OWNERSHIP BY A CORPORATION,
THE STOCKHOLDERS, AND ALSO THE NAMES OF KNOWN BONDHOLDERS OR OTHER
SECURITY HOLDERS, TOGETHER WITH A STATEMENT AS TO CIRCULATION.  39
U.S.C. 233.  SEE LEWIS PUBLISHING CO. V. MORGAN, 229 U.S. 288. 

PETITIONERS REFER TO THE LIMITATIONS UPON PUBLICITY CONTAINED IN SEC.
22 AND CONTRAST THIS PROVISION WITH THAT OF THE SECURITIES ACT OF 1933,
SEC. 6(D), 48 STAT. 74, 78.  BUT SEC. 22 PROVIDES THAT THE INFORMATION
SHALL BE AVAILABLE TO THE PUBLIC WHEN IN THE JUDGMENT OF THE COMMISSION
ITS DISCLOSURE WOULD BE IN THE PUBLIC INTEREST OR THE INTEREST OF
INVESTORS OR CONSUMERS.  THE LIMITATIONS ARE PLAINLY INTENDED TO
SAFEGUARD PARTICULAR INFORMATION WHICH MAY BE REGARDED AS OF A PRIVATE
OR CONFIDENTIAL CHARACTER AND AS NOT DIRECTLY CONCERNING THE PUBLIC
INTEREST.  THEY DO NOT DETRACT FROM THE VALUE WHICH MAY BE DEEMED TO
ATTACH TO THE REQUIREMENT THAT THE DESCRIBED INFORMATION SHOULD BE
FURNISHED, WHETHER AS AN AID TO LEGISLATION OR AS FACILITATING
ADMINISTRATIVE SUPERVISION OR AS SECURING A DESIRABLE PUBLICITY. 

BOTH PARTIES INVOKE THE LEGISLATIVE HISTORY OF THE ACT.  PETITIONERS
CONTEND THAT THIS SHOWS THAT CONTROL, NOT PUBLICITY, WAS INTENDED.  THE
GOVERNMENT INSISTS THAT THE LEGISLATIVE HISTORY SUPPORTS THE
PRESUMPTION OF SEPARABILITY.  IT IS UNNECESSARY TO REVIEW THE DETAILS
OF THE ARGUMENTS OR THE CITED STATEMENTS FROM THE LEGISLATIVE HALLS. 
THE ACT SPEAKS FOR ITSELF WITH SUFFICIENT CLARITY.  THE GOVERNMENT
POINTS TO SIX GROUPS OF REGULATORY PROVISIONS CONTAINED IN THE ACT,
VIZ., REGISTRATION (SECS. 4 AND 5); ISSUANCE OF SECURITIES (SECS. 6 AND
7); ACQUISITION OF SECURITIES AND UTILITY ASSETS (SECS. 8, 9 AND 10);
CORPORATE SIMPLIFICATION AND REORGANIZATION (SEC. 11); SERVICE
CONTRACTS AND OTHER INTER-COMPANY TRANSACTIONS (SECS. 12 AND 13); AND
REPORTS AND ACCOUNTS (SECS. 14 AND 15).  WE SEE NOTHING IN THE
LEGISLATIVE HISTORY OF THE ACT WHICH REQUIRES THE CONCLUSION THAT ALL
THESE GROUPS WERE INTENDED TO CONSTITUTE A UNITARY SYSTEM, NO PART OF
WHICH CAN FAIL WITHOUT DESTROYING THE REST.  ON THE CONTRARY, WE THINK
THAT THE INTENT OF CONGRESS IS THAT THESE VARIOUS GROUPS OF
REGULATIONS, AS WELL AS PARTICULAR PROVISIONS OF EACH GROUP, SHOULD BE
REGARDED AS SEPARABLE SO THAT, IF ANY SUCH GROUP OR PROVISION SHOULD BE
FOUND TO BE INVALID, THAT INVALIDITY SHOULD NOT EXTEND TO THE REMAINING
PARTS IF BY REASON OF THEIR NATURE AND AS A PRACTICAL MATTER THEY COULD
BE SEPARATELY SUSTAINED AND ENFORCED. 

CONGRESS PROVIDED IN SEC. 18(F) THAT THE COMMISSION MIGHT BRING AN
ACTION TO ENFORCE COMPLIANCE WITH THE ACT OR ANY RULE, REGULATION OR
ORDER THEREUNDER, AND THAT UPON A PROPER SHOWING A PERMANENT OR
TEMPORARY INJUNCTION OR DECREE SHOULD BE GRANTED.  IN PURSUANCE OF THAT
AUTHORITY, THE PRESENT ACTION WAS BROUGHT SOLELY TO ENFORCE THE
PROVISIONS OF SECS. 4(A) AND 5.  WE FIND NO BASIS FOR HOLDING THAT
THESE PROVISIONS CANNOT BE SEPARATELY ENFORCED IF THEY ARE VALID AND WE
TURN TO THAT QUESTION.  IN VIEW OF THIS CONCLUSION AS TO SEPARABILITY,
IT IS UNNECESSARY TO GO THROUGH THE STATUTE IN ORDER TO DETERMINE
WHETHER OTHER PROVISIONS ARE VALID OR INVALID, AND WE DO NOT INTIMATE
THAT THERE WOULD NOT BE FOUND IN ANY EVENT A WORKABLE SYSTEM IN
ADDITION TO THE REGISTRATION SECTIONS. 

THIRD. PETITIONERS CONTEND THAT, STANDING BY THEMSELVES, SECS. 4(A)
AND 5 TRANSGRESS CONSTITUTIONAL RESTRICTIONS.  THESE SECTIONS HAVE
THREE PARTS.  SECTION 5(A) PROVIDES FOR THE FILING OF A NOTIFICATION OF
REGISTRATION.  SECTION 5(B) MAKES IT THE DUTY OF EVERY REGISTERED
HOLDING COMPANY TO FILE A REGISTRATION STATEMENT, WITH DOCUMENTS AND
CERTAIN DETAILED INFORMATION, WITHIN A REASONABLE TIME AFTER
REGISTRATION.  SECTION 4(A) PRESCRIBES THE PENALTY FOR FAILURE TO
REGISTER UNDER SEC. 5.  AS THE REQUIREMENT OF INFORMATION IS IN ITSELF
A PERMISSIBLE AND USEFUL TYPE OF REGULATION (INTERSTATE COMMERCE
COMMISSION V. BRIMSON, SUPRA; INTERSTATE COMMERCE COMMISSION V.
GOODRICH TRANSIT CO., SUPRA; AMERICAN TELEPHONE & TELEGRAPH CO. V.
UNITED STATES, SUPRA), THE QUESTION IS WHETHER THE PARTICULAR DEMAND,
HERE ASSAILED, CAN BE VALIDLY ADDRESSED TO THE DEFENDANTS ENJOINED BY
THE DECREE, AND, IF SO, WHETHER IT EXCEEDS CONSTITUTIONAL LIMITS
BECAUSE OF THE CHARACTER AND EXTENT OF THE INFORMATION SOUGHT. 

THE FINDINGS OF THE DISTRICT COURT BASED UPON THE STIPULATION OF
FACTS LEAVE NO ROOM FOR DOUBT THAT THESE DEFENDANTS ARE ENGAGED IN
TRANSACTIONS IN INTERSTATE COMMERCE.  THAT THEY CONDUCT SUCH
TRANSACTIONS THROUGH THE INSTRUMENTALITY OF SUBSIDIARIES CANNOT AVAIL
TO REMOVE THEM FROM THE REACH OF THE FEDERAL POWER.  IT IS THE
SUBSTANCE OF WHAT THEY DO, AND NOT THE FORM IN WHICH THEY CLOTHE THEIR
TRANSACTIONS, WHICH MUST AFFORD THE TEST.  THE CONSTITUTIONAL AUTHORITY
CONFIDED TO CONGRESS COULD NOT BE MAINTAINED IF IT WERE DEEMED TO
DEPEND UPON THE MERE MODAL ARRANGEMENTS OF THOSE SEEKING TO ESCAPE ITS
EXERCISE.  COMPARE NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S.
197.  WE NEED NOT NOW DETERMINE TO WHAT PRECISE EXTENT THESE DEFENDANTS
ARE ACTUALLY ENGAGED IN INTERSTATE COMMERCE.  IT IS ENOUGH THAT THEY DO
HAVE CONTINUOUS AND EXTENSIVE OPERATIONS IN THAT COMMERCE, AND CONGRESS
CANNOT BE DENIED THE POWER TO DEMAND THE INFORMATION WHICH WOULD
FURNISH A GUIDE TO THE REGULATION NECESSARY OR APPROPRIATE IN THE
NATIONAL INTEREST.  REGULATION IS ADDRESSED TO PRACTICES WHICH APPEAR
TO NEED SUPERVISION, CORRECTION OR CONTROL.  AND TO DETERMINE WHAT
REGULATION IS ESSENTIAL OR SUITABLE, CONGRESS IS ENTITLED TO CONSIDER
AND TO ESTIMATE WHATEVER EVILS EXIST. 

CONGRESS HAS SET FORTH IN THE ACT WHAT IT CONSIDERS TO BE THE FACTUAL
SITUATION AND THE NEED OF FEDERAL SUPERVISION.  THE FOLLOWING STATEMENT
IS FOUND IN PARAGRAPH (A) OF SEC. 1: 

"PUBLIC-UTILITY HOLDING COMPANIES AND THEIR SUBSIDIARY COMPANIES ARE
AFFECTED WITH A NATIONAL PUBLIC INTEREST IN THAT, AMONG OTHER THINGS,
(1) THEIR SECURITIES ARE WIDELY MARKETED AND DISTRIBUTED BY MEANS OF
THE MAILS AND INSTRUMENTALITIES OF INTERSTATE COMMERCE AND ARE SOLD TO
A LARGE NUMBER OF INVESTORS IN DIFFERENT STATES; (2) THEIR SERVICE,
SALES, CONSTRUCTION, AND OTHER CONTRACTS AND ARRANGEMENTS ARE OFTEN
MADE AND PERFORMED BY MEANS OF THE MAILS AND INSTRUMENTALITIES OF
INTERSTATE COMMERCE; (3) THEIR SUBSIDIARY PUBLIC-UTILITY COMPANIES
OFTEN SELL AND TRANSPORT GAS AND ELECTRIC ENERGY BY THE USE OF MEANS
AND INSTRUMENTALITIES OF INTERSTATE COMMERCE; (4) THEIR PRACTICES IN
RESPECT OF AND CONTROL OVER SUBSIDIARY COMPANIES OFTEN MATERIALLY
AFFECT THE INTERSTATE COMMERCE IN WHICH THOSE COMPANIES ENGAGE; (5)
THEIR ACTIVITIES EXTENDING OVER MANY STATES ARE NOT SUSCEPTIBLE OF
EFFECTIVE CONTROL BY ANY STATE AND MAKE DIFFICULT, IF NOT IMPOSSIBLE,
EFFECTIVE STATE REGULATION OF PUBLIC-UTILITY COMPANIES." 

CONGRESS HAS FURTHER DECLARED IN PARAGRAPH (B) OF THAT SECTION, UPON
THE BASIS OF FACTS DISCLOSED BY THE REPORTS OF THE FEDERAL TRADE
COMMISSION AND OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE OF
THE HOUSE OF REPRESENTATIVES, AND OTHERWISE ASCERTAINED, THE
CIRCUMSTANCES IN WHICH THE NATIONAL INTEREST AND THE INTEREST OF
INVESTORS AND CONSUMERS MAY BE ADVERSELY AFFECTED BY THE OPERATION OF
PUBLIC UTILITY HOLDING COMPANIES.  AND AFTER THIS CATALOGUE OF THE
ABUSES WHICH MAY EXIST IN THE CIRCUMSTANCES DESCRIBED, CONGRESS
DECLARES IT TO BE ITS POLICY "TO MEET THE PROBLEMS AND ELIMINATE THE
EVILS AS ENUMERATED IN THIS SECTION, CONNECTED WITH PUBLIC-UTILITY
HOLDING COMPANIES WHICH ARE ENGAGED IN INTERSTATE COMMERCE OR IN
ACTIVITIES WHICH DIRECTLY AFFECT OR BURDEN INTERSTATE COMMERCE." 
WITHOUT ATTEMPTING TO STATE THE LIMITS OF PERMISSIBLE REGULATION IN THE
EXECUTION OF THIS DECLARED POLICY, WE HAVE NO REASON TO DOUBT THAT FROM
THESE DEFENDANTS, WITH THEIR HIGHLY IMPORTANT RELATION TO INTERSTATE
COMMERCE AND THE NATIONAL ECONOMY, CONGRESS WAS ENTITLED TO DEMAND THE
FULLEST INFORMATION AS TO ORGANIZATION, FINANCIAL STRUCTURE AND ALL THE
ACTIVITIES WHICH COULD HAVE ANY BEARING UPON THE EXERCISE OF
CONGRESSIONAL AUTHORITY.  THE REGULATION FOUND IN SEC. 5(B) GOES NO
FURTHER THAN TO REQUIRE THIS INFORMATION AND WE ARE OF THE OPINION THAT
ITS VALIDITY MUST BE SUSTAINED. 

SEC. 5, AND THAT SECTION AS AN INCIDENT TO REGISTRATION IMPOSES THE
DUTY TO FILE THE DESCRIBED REGISTRATION STATEMENT.  TREATING THE
REQUIREMENTS OF SECS. 4(A) AND 5 AS A SEPARABLE PART OF THE ACT, THE
QUESTION IS WHETHER THAT PENALTY MAY BE VALIDLY IMPOSED. 

IN THE IMPOSITION OF PENALTIES FOR THE VIOLATION OF ITS RULES,
CONGRESS HAS A WIDE DISCRETION.  SANCTIONS MAY BE OF VARIOUS TYPES. 
SEE HELVERING V. MITCHELL, ANTE, P. 391.  THEY MAY INVOLVE THE LOSS OF
A PRIVILEGE WHICH WOULD OTHERWISE BE ENJOYED.  ID. NOTE 2.  WHEN
CONGRESS LAYS DOWN A VALID RULE TO GOVERN THOSE ENGAGED IN TRANSACTIONS
IN INTERSTATE COMMERCE, CONGRESS MAY DENY TO THOSE WHO VIOLATE THE RULE
THE RIGHT TO ENGAGE IN SUCH TRANSACTIONS.  CHAMPION V. AMES, 188 U.S.
321; UNITED STATES V. DELAWARE & HUDSON CO., 213 U.S. 366, 415; BROOKS
V. UNITED STATES, 267 U.S. 432, 436, 437; GOOCH V. UNITED STATES, 297
U.S. 124; KENTUCKY WHIP & COLLAR CO. V. ILLINOIS CENTRAL R. CO., 299
U.S. 334, 346, 347.  AND WHILE CONGRESS MAY NOT EXERCISE ITS CONTROL
OVER THE MAILS TO ENFORCE A REQUIREMENT WHICH LIES OUTSIDE ITS
CONSTITUTIONAL PROVINCE, WHEN CONGRESS LAYS DOWN A VALID REGULATION
PERTINENT TO THE USE OF THE MAILS, IT MAY WITHDRAW THE PRIVILEGE OF
THAT USE FROM THOSE WHO DISOBEY.  CHAMPION V. AMES, SUPRA; LEWIS
PUBLISHING CO. V. MORGAN, 229 U.S. 288. 

IN THE INSTANT CASE, THE PENALTY ATTACHES TO THE USE OF THE
INSTRUMENTALITIES OF COMMERCE AND OF THE MAILS BY THOSE WHO, ENGAGED IN
THAT USE, REFUSE TO SUBMIT TO SEC. 5 AND THUS THROUGH REGISTRATION AND
THE STATEMENT WHICH IS INCIDENT TO REGISTRATION TO SUPPLY THE
INFORMATION WHICH CONGRESS IS ENTITLED TO DEMAND, AND HAS DEMANDED,
WITH RESPECT TO THEIR ORGANIZATION AND PRACTICES.  EACH ONE OF THE
PARAGRAPHS OF SEC. 4(A), AS RELATED TO THE REQUIREMENTS OF SEC. 5, IS
ADDRESSED TO THOSE IN THAT CLASS.  WE THINK THAT THE IMPOSITION OF SUCH
A PENALTY DOES NOT TRANSGRESS ANY CONSTITUTIONAL PROVISION. 

THE DECREE ENFORCES THIS PENALTY BY INJUNCTION AS THE ACT ITSELF
AUTHORIZES.  SEC. 18(F).  THE TERMS OF THE INJUNCTION FOLLOW CLOSELY
THE PROVISIONS OF SEC. 4(A) AND DO NOT EXTEND BEYOND THEM.  TO ESCAPE
THE PENALTY AND THE ENFORCING PROVISIONS OF THE DECREE, ALL THAT THE
DEFENDANTS HAVE TO DO IS TO REGISTER WITH THE COMMISSION AND ASSUME,
UNDER SEC. 5, THE OBLIGATION TO FILE THE DESCRIBED REGISTRATION
STATEMENT.  ALL THEIR RIGHTS AND REMEDIES WITH RESPECT TO OTHER
PROVISIONS OF THE STATUTE REMAIN WITHOUT PREJUDICE.  THEIR OBJECTIONS
TO THE AFFIRMATIVE PROVISIONS OF THE DECREE ARE UNTENABLE. 

FOURTH.  THE DISTRICT COURT DID NOT ERR IN DISMISSING THE CROSS
BILL.  DEFENDANTS ARE NOT ENTITLED TO INVOKE THE FEDERAL DECLARATORY
JUDGMENT ACT IN ORDER TO OBTAIN AN ADVISORY DECREE UPON A HYPOTHETICAL
STATE OF FACTS.  SEE NEW JERSEY V. SARGENT, 269 U.S. 328; UNITED STATES
V. WEST VIRGINIA, 295 U.S. 463; ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288, 324; ANNISTON MANUFACTURING CO. V. DAVIS, 301
U.S. 337, 355.  BY THE CROSS BILL, DEFENDANTS SEEK A JUDGMENT THAT EACH
AND EVERY PROVISION OF THE ACT IS UNCONSTITUTIONAL.  IT PRESENTS A
VARIETY OF HYPOTHETICAL CONTROVERSIES WHICH MAY NEVER BECOME REAL.  WE
ARE INVITED TO ENTER INTO A SPECULATIVE INQUIRY FOR THE PURPOSE OF
CONDEMNING STATUTORY PROVISIONS THE EFFECT OF WHICH IN CONCRETE
SITUATIONS, NOT YET DEVELOPED, CANNOT NOW BE DEFINITELY PERCEIVED.  WE
MUST DECLINE THAT INVITATION.  ANNISTON MANUFACTURING CO. V. DAVIS,
SUPRA. 

THE DECREE IS AFFIRMED. 

FN1  IDAHO POWER COMPANY AND THE MONTANA POWER COMPANY. 

FN2  UNITED GAS CORPORATION, UNITED GAS PUBLIC SERVICE COMPANY,
HOUSTON GULF GAS COMPANY, NEBRASKA POWER COMPANY, AND POWER SECURITIES
COMPANY. 

FN3  "SEC.  4.  (A).  AFTER DECEMBER 1, 1935, UNLESS A HOLDING
COMPANY IS REGISTERED UNDER SECTION 5, IT SHALL BE UNLAWFUL FOR SUCH
HOLDING COMPANY, DIRECTLY OR INDIRECTLY - 

"(1)  TO SELL, TRANSPORT, TRANSMIT, OR DISTRIBUTE, OR OWN OR OPERATE
ANY UTILITY ASSETS FOR THE TRANSPORTATION, TRANSMISSION, OR
DISTRIBUTION OF, NATURAL OR MANUFACTURED GAS OR ELECTRIC ENERGY IN
INTERSTATE COMMERCE; 

"(2)  BY USE OF THE MAILS OR ANY MEANS OR INSTRUMENTALITY OF
INTERSTATE COMMERCE, TO NEGOTIATE, ENTER INTO, OR TAKE ANY STEP IN THE
PERFORMANCE OF, ANY SERVICE, SALES, OR CONSTRUCTION CONTRACT
UNDERTAKING TO PERFORM SERVICES OR CONSTRUCTION WORK FOR, OR SELL GOODS
TO, ANY PUBLIC-UTILITY COMPANY OR HOLDING COMPANY; 

"(3)  TO DISTRIBUTE OR MAKE ANY PUBLIC OFFERING FOR SALE OR EXCHANGE
OF ANY SECURITY OF SUCH HOLDING COMPANY, ANY SUBSIDIARY COMPANY OR
AFFILIATE OF SUCH HOLDING COMPANY, ANY PUBLIC-UTILITY COMPANY, OR ANY
HOLDING COMPANY, BY USE OF THE MAILS OR ANY MEANS OR INSTRUMENTALITY OF
INTERSTATE COMMERCE, OR TO SELL ANY SUCH SECURITY HAVING REASON TO
BELIEVE THAT SUCH SECURITY, BY USE OF THE MAILS OR ANY MEANS OR
INSTRUMENTALITY OF INTERSTATE COMMERCE, WILL BE DISTRIBUTED OR MADE THE
SUBJECT OF A PUBLIC OFFERING;    "(4)  BY USE OF THE MAILS OR ANY MEANS
OR INSTRUMENTALITY OF INTERSTATE COMMERCE, TO ACQUIRE OR NEGOTIATE FOR
THE ACQUISITION OF ANY SECURITY OR UTILITY ASSETS OF ANY SUBSIDIARY
COMPANY OR AFFILIATE OF SUCH HOLDING COMPANY, ANY PUBLIC-UTILITY
COMPANY, OR ANY HOLDING COMPANY; 

"(5)  TO ENGAGE IN ANY BUSINESS IN INTERSTATE COMMERCE; OR 

"(6)  TO OWN, CONTROL, OR HOLD WITH POWER TO VOTE, ANY SECURITY OF
ANY SUBSIDIARY COMPANY THEREOF THAT DOES ANY OF THE ACTS ENUMERATED IN
PARAGRAPHS (1) TO (5), INCLUSIVE, OF THIS SUBSECTION. 

     .         .  .         .         .    "SEC. 5.  (A)  ON OR AT
ANY TIME AFTER OCTOBER 1, 1935, ANY HOLDING COMPANY OR ANY PERSON
PURPOSING TO BECOME A HOLDING COMPANY MAY REGISTER BY FILING WITH THE
COMMISSION A NOTIFICATION OF REGISTRATION, IN SUCH FORM AS THE
COMMISSION MAY BY RULES AND REGULATIONS PRESCRIBE AS NECESSARY OR
APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF INVESTORS
OR CONSUMERS.  A PERSON SHALL BE DEEMED TO BE REGISTERED UPON RECEIPT
BY THE COMMISSION OF SUCH NOTIFICATION OF REGISTRATION. 

"(B)  IT SHALL BE THE DUTY OF EVERY REGISTERED HOLDING COMPANY TO
FILE WITH THE COMMISSION, WITHIN SUCH REASONABLE TIME AFTER
REGISTRATION AS THE COMMISSION SHALL FIX BY RULES AND REGULATIONS OR
ORDER, A REGISTRATION STATEMENT IN SUCH FORM AS THE COMMISSION SHALL BY
RULES AND REGULATIONS OR ORDER PRESCRIBE AS NECESSARY OR APPROPRIATE IN
THE PUBLIC INTEREST OR FOR THE PROTECTION OF INVESTORS OR CONSUMERS. 
SUCH REGISTRATION STATEMENT SHALL INCLUDE - 

"(1)  SUCH COPIES OF THE CHARTER OR ARTICLES OF INCORPORATION,
PARTNERSHIP, OR AGREEMENT, WITH ALL AMENDMENTS THERETO, AND THE BYLAWS,
TRUST INDENTURES, MORTGAGES, UNDERWRITING ARRANGEMENTS, VOTING-TRUST
AGREEMENTS, AND SIMILAR DOCUMENTS, BY WHATEVER NAME KNOWN, OF OR
RELATING TO THE REGISTRANT OR ANY OF ITS ASSOCIATE COMPANIES AS THE
COMMISSION MAY BY RULES AND REGULATIONS OR ORDER PRESCRIBE AS NECESSARY
OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF
INVESTORS OR CONSUMERS; 

"(2)  SUCH INFORMATION IN SUCH FORM AND IN SUCH DETAIL RELATING TO,
AND COPIES OF SUCH DOCUMENTS OF OR RELATING TO, THE REGISTRANT AND ITS
ASSOCIATE COMPANIES AS THE COMMISSION MAY BY RULES AND REGULATIONS OR
ORDER PRESCRIBE AS NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR
FOR THE PROTECTION OF INVESTORS OR CONSUMERS IN RESPECT OF - 

"(A)  THE ORGANIZATION AND FINANCIAL STRUCTURE OF SUCH COMPANIES AND
THE NATURE OF THEIR BUSINESS; 

"(B)  THE TERMS, POSITION, RIGHTS, AND PRIVILEGES OF THE DIFFERENT
CLASSES OF THEIR SECURITIES OUTSTANDING; 

"(C)  THE TERMS AND UNDERWRITING ARRANGEMENTS UNDER WHICH THEIR
SECURITIES, DURING NOT MORE THAN THE FIVE PRECEDING YEARS, HAVE BEEN
OFFERED TO THE PUBLIC OR OTHERWISE DISPOSED OF AND THE RELATIONS OF
UNDERWRITERS TO, AND THEIR INTEREST IN, SUCH COMPANIES; 

"(D)  THE DIRECTORS AND OFFICERS OF SUCH COMPANIES, THEIR
REMUNERATION, THEIR INTEREST IN THE SECURITIES OF, THEIR MATERIAL
CONTRACTS WITH, AND THEIR BORROWINGS FROM, ANY OF SUCH COMPANIES; 

"(E)  BONUS AND PROFIT-SHARING ARRANGEMENTS; 

"(F)  MATERIAL CONTRACTS, NOT MADE IN THE ORDINARY COURSE OF
BUSINESS, AND SERVICE, SALES, AND CONSTRUCTION CONTRACTS; 

"(G)  OPTIONS IN RESPECT OF SECURITIES; 

"(H)  BALANCE SHEETS FOR NOT MORE THAN THE FIVE PRECEDING FISCAL
YEARS, CERTIFIED, IF REQUIRED BY THE RULES AND REGULATIONS OF THE
COMMISSION, BY AN INDEPENDENT PUBLIC ACCOUNTANT; 

"(I)  PROFIT AND LOSS STATEMENTS FOR NOT MORE THAN THE FIVE PRECEDING
FISCAL YEARS, CERTIFIED, IF REQUIRED BY THE RULES AND REGULATIONS OF
THE COMMISSION, BY AN INDEPENDENT PUBLIC ACCOUNTANT; 

"(3)  SUCH FURTHER INFORMATION OR DOCUMENTS REGARDING THE REGISTRANT
OR ITS ASSOCIATE COMPANIES OR THE RELATIONS BETWEEN THEM AS THE
COMMISSION MAY BY RULES AND REGULATIONS OR ORDER PRESCRIBE AS NECESSARY
OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE PROTECTION OF
INVESTORS OR CONSUMERS. 

"(C)  THE COMMISSION BY SUCH RULES AND REGULATIONS OR ORDER AS IT
DEEMS NECESSARY OR APPROPRIATE IN THE PUBLIC INTEREST OR FOR THE
PROTECTION OF INVESTORS OR CONSUMERS, MAY PERMIT A REGISTRANT TO FILE A
PRELIMINARY REGISTRATION STATEMENT WITHOUT COMPLYING WITH THE
PROVISIONS OF SUBSECTION (B); BUT EVERY REGISTRANT SHALL FILE A
COMPLETE REGISTRATION STATEMENT WITH THE COMMISSION WITHIN SUCH
REASONABLE PERIOD OF TIME AS THE COMMISSION SHALL FIX BY RULES AND
REGULATIONS OR ORDER, BUT NOT LATER THAN ONE YEAR AFTER THE DATE OF
REGISTRATION. 

"(D)  WHENEVER THE COMMISSION, UPON APPLICATION, FINDS THAT A
REGISTERED HOLDING COMPANY HAS CEASED TO BE A HOLDING COMPANY, IT SHALL
SO DECLARE BY ORDER AND UPON THE TAKING EFFECT OF SUCH ORDER THE
REGISTRATION OF SUCH COMPANY SHALL, UPON SUCH TERMS AND CONDITIONS AS
THE COMMISSION FINDS AND IN SUCH ORDER PRESCRIBES AS NECESSARY FOR THE
PROTECTION OF INVESTORS, CEASE TO BE IN EFFECT.  THE DENIAL OF ANY SUCH
APPLICATION BY THE COMMISSION SHALL BE BY ORDER." 

FN4  THE "TITLE" IS "TITLE I - CONTROL OF PUBLIC-UTILITY HOLDING
COMPANIES." 

MR. JUSTICE MCREYNOLDS DISSENTS. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE. 
..END :




LOVELL V. GRIFFIN, 303 U.S. 444 


NO. 391.  ARGUED FEBRUARY 4, 1938.  - DECIDED MARCH 28, 1938.  - 55 GA.
APP. 609 -  191 S.E. 152, REVERSED. 


1.  WHETHER A FEDERAL QUESTION WAS PROPERLY PRESENTED TO AND DECIDED
BY A STATE COURT IS ITSELF A FEDERAL QUESTION, TO BE DECIDED BY THIS
COURT UPON APPEAL.  P. 450. 

2.  FREEDOM OF SPEECH AND FREEDOM OF THE PRESS, WHICH ARE PROTECTED
BY THE FIRST AMENDMENT FROM INFRINGEMENT BY CONGRESS, ARE AMONG THE
FUNDAMENTAL PERSONAL RIGHTS AND LIBERTIES WHICH ARE PROTECTED BY THE
FOURTEENTH AMENDMENT FROM INVASION BY STATE ACTION.  P. 450. 

3.  MUNICIPAL ORDINANCES ADOPTED UNDER STATE AUTHORITY CONSTITUTE
STATE ACTION WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT.  P. 450. 

4.  A CITY ORDINANCE FORBIDDING AS A NUISANCE THE DISTRIBUTION, BY
HAND OR OTHERWISE, OF LITERATURE OF ANY KIND WITHOUT FIRST OBTAINING
WRITTEN PERMISSION FROM THE CITY MANAGER, VIOLATES THE FOURTEENTH
AMENDMENT; STRIKES AT THE VERY FOUNDATION OF THE FREEDOM OF THE PRESS
BY SUBJECTING IT TO LICENSE AND CENSORSHIP.  P. 450. 

SO HELD AS APPLIED TO DISTRIBUTION OF PAMPHLETS AND MAGAZINES IN THE
NATURE OF RELIGIOUS TRACTS. 

5.  THE LIBERTY OF THE PRESS IS NOT CONFINED TO NEWSPAPERS AND
PERIODICALS.  IT EMBRACES PAMPHLETS AND LEAFLETS.  P. 452. 

6.  ONE WHO IS PROSECUTED FOR DISOBEYING A LICENSE ORDINANCE WHICH IS
VOID ON ITS FACE MAY CONTEST ITS VALIDITY WITHOUT HAVING SOUGHT A
PERMIT UNDER IT.  P. 452. 

LOVELL V. CITY OF GRIFFIN. 

APPEAL FROM THE COURT OF APPEALS OF GEORGIA. 

APPEAL FROM A JUDGMENT AFFIRMING A SENTENCE IMPOSED FOR VIOLATION OF
A CITY ORDINANCE.  THE SUPREME COURT OF THE STATE DENIED A REVIEW. 

THIS ORDINANCE IS A POLICE MEASURE WHICH DEALS WITH THE PRACTICE OF
DISTRIBUTING CIRCULARS, HANDBOOKS, ADVERTISING AND OTHER LITERATURE
WITHIN THE CITY LIMITS.  IF IT BE KEPT IN MIND THAT EVERY MUNICIPALITY
IS FACED WITH A SANITARY PROBLEM IN REMOVING FROM ITS STREETS PAPERS,
CIRCULARS AND OTHER LIKE MATERIALS, THE REASONS FOR THE ADOPTION OF
SUCH AN ORDINANCE BECOME APPARENT.  CLEARLY THERE IS A PERMISSIBLE
FIELD FOR SUCH A REGULATION WITHIN CONSTITUTIONAL LIMITATIONS.  NOTHING
IN THE ORDINANCE IS AIMED AT OR RELATES TO THE RIGHT TO WORSHIP AS ONE
MAY PREFER, OR THE RIGHT TO SPEAK OR WRITE WITH COMPLETE FREEDOM.  THE
FACT THE APPELLANT MAY HAVE IN HER OWN MIND ASSOCIATED HER FORBIDDEN
ACTIVITIES WITH HER RELIGIOUS CONVICTIONS DOES NOT ESTABLISH ANY LEGAL
OR CONSTITUTIONAL CONNECTION BETWEEN THEM.  COMMONWEALTH V. PLAISTED,
148 MASS. 375; SMITH V. PEOPLE, 51 COLO. 271; STATE V. MARBLE, 72 OHIO
ST. 21; STREITCH V. BOARD OF EDUCATION, 34 S.D. 169; STATE V. BIG
SHEEP, 75 MONT. 219; MCMASTERS V. STATE, 21 OKLA. CRIM. 318; REYNOLDS
V. UNITED STATES, 98 U.S. 145; STATE V. NEITZEL, 69 WASH. 567;
COMMONWEALTH V. HERR, 229 PA. ST. 132. 

APPELLANT IS NOT A MEMBER OF THE PRESS.  THE RECORD IN THIS CASE DOES
NOT PLACE HER IN THE CLASS OF PERSONS WHO ARE ENTITLED TO INVOKE THE
CONSTITUTIONAL PROVISIONS TOUCHING THE FREEDOM OF THE PRESS.  MOREOVER,
SHE WAS NOT CONVICTED FOR ANYTHING SHE WAS SPEAKING OR WRITING. 
NEITHER DOES THE ORDINANCE PROHIBIT HER FROM SPEAKING OR WRITING AS HER
JUDGMENT MAY DICTATE.  THE REQUIREMENT OF THE ORDINANCE THAT SHE IS NOT
TO DISTRIBUTE PRINTED MATTER WHICH OTHERS HAVE PUBLISHED, WITHOUT A
PERMIT, INVOLVES IN NO WAY THE CONSTITUTIONAL RIGHT OF FREE SPEECH. 
IROQUOIS TRANSPORTATION CO. V. DELANEY CO., 205 U.S. 354; LEE V. NEW
JERSEY, 207 U.S. 67; FIDELITY & CASUALTY CO. V. FREEMAN, 109 F. 847;
MISSOURI, K. & T.R. CO. V. CADE, 233 U.S. 642. 

THE ORDINANCE DOES RESTRICT THE RIGHT TO DISTRIBUTE CIRCULARS,
ADVERTISING MATTER AND OTHER LITERATURE IN THE CITY, IN THE ABSENCE OF
A PERMIT FROM THE CITY MANAGER.  IT IS URGED THAT THIS RESTRAINT
INVOLVES A DENIAL OF DUE PROCESS AND THE EQUAL PROTECTION OF THE LAW,
IN THAT THE CITY MANAGER IS CLOTHED WITH UNQUALIFIED DISCRETION IN
GRANTING OR DENYING THE PERMIT.  THIS IS SCARCELY A DENIAL OF THE EQUAL
PROTECTION OF THE LAW, SINCE IT APPLIES IN LIKE MANNER TO ALL PERSONS. 
A SUBSTANTIAL QUESTION AS TO DUE PROCESS MIGHT HAVE BEEN INVOLVED IN
THE CASE EXCEPT FOR THE FOLLOWING ESSENTIAL FACTS, TO-WIT: 

(A)  APPELLANT FAILED TO RAISE IN ANY PROPER MANNER THE ISSUE OF DUE
PROCESS IN THE TRIAL COURT.  THE COURT OF APPEALS SO RULED, AND
RIGHTLY.  COLEMAN V. GRIFFIN, 55 GA. APP. 123; CURTIS V. HELEN, 171 GA.
256; JORDAN V. STATE, 172 GA. 857; PALMER V. PHINIZY, 151 GA. 589;
LOUISVILLE & N.RY. CO. V. WOODFORD, 234 U.S. 46. 

(B)  APPELLANT DID NOT APPLY TO THE CITY MANAGER FOR A PERMIT.  SHE
IS NOT IN A POSITION OF HAVING SUFFERED FROM THE EXERCISE OF THE
ARBITRARY AND UNLIMITED POWER OF WHICH SHE COMPLAINS.  HAD SHE MADE
APPLICATION FOR A PERMIT AND HAD SHE BEEN DENIED ONE WITHOUT ADEQUATE
REASON, HER CONSTITUTIONAL RIGHTS WOULD HAVE BEEN INFRINGED.  SHE SEEKS
TO CLAIM THE BENEFIT OF THE PRESUMPTION THAT AN APPLICATION BY HER FOR
A PERMIT WOULD HAVE BEEN DENIED.  NOTHING IN THE RECORD JUSTIFIES SUCH
AN ASSUMPTION.  THE FACT THAT THE CITY MANAGER IS CLOTHED WITH
ARBITRARY POWER, IF IT BE A FACT, AFFORDS THE APPELLANT NO GROUND OF
COMPLAINT UNLESS AND UNTIL SHE HAS SUFFERED FROM THE EXERCISE OF THIS
POWER.  IT IS SUBMITTED THAT IT IS PROPER FOR THE CITY TO PROVIDE BY
ORDINANCE THAT ALL PERSONS DISTRIBUTING MATERIALS DESCRIBED BY THE
ORDINANCE BE REQUIRED TO APPLY FOR A PERMIT.  IF SO, NO PERSON DESIRING
TO ENGAGE IN THIS ACTIVITY CAN SUFFER ANY LEGAL WRONG BY REASON OF THE
ORDINANCE UNTIL THE APPLICATION FOR A PERMIT HAS BEEN DENIED.  UNTIL
THE CONTRARY APPEARS FROM EXPERIENCE, IT WILL BE PRESUMED THAT ALL
PERSONS LEGALLY ENTITLED TO A PERMIT WILL BE GRANTED ONE.  HAD THE
APPELLANT APPLIED FOR ONE AND BEEN DENIED WITHOUT SUBSTANTIAL CAUSE, A
QUESTION OF DUE PROCESS WOULD HAVE ARISEN.  EVEN THEN, IT WOULD BE
NECESSARY, IN ORDER TO GET A HEARING IN THIS COURT, FOR THE APPELLANT
TO RAISE THIS QUESTION IN THE MANNER REQUIRED BY THE ACCEPTED RULES OF
PRACTICE, AND THIS SHE HAS NOT DONE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

APPELLANT, ALMA LOVELL, WAS CONVICTED IN THE RECORDER'S COURT OF THE
CITY OF GRIFFIN, GEORGIA, OF THE VIOLATION OF A CITY ORDINANCE AND WAS
SENTENCED TO IMPRISONMENT FOR FIFTY DAYS IN DEFAULT OF THE PAYMENT OF A
FINE OF FIFTY DOLLARS.  THE SUPERIOR COURT OF THE COUNTY REFUSED
SANCTION OF A PETITION FOR REVIEW; THE COURT OF APPEALS AFFIRMED THE
JUDGMENT OF THE SUPERIOR COURT (55 GA. APP. 609; 191 S.E. 152); AND THE
SUPREME COURT OF THE STATE DENIED AN APPLICATION FOR CERTIORARI.  THE
CASE COMES HERE ON APPEAL. 

THE ORDINANCE IN QUESTION IS AS FOLLOWS: 

"SECTION 1.  THAT THE PRACTICE OF DISTRIBUTING, EITHER BY HAND OR
OTHERWISE, CIRCULARS, HANDBOOKS, ADVERTISING, OR LITERATURE OF ANY
KIND, WHETHER SAID ARTICLES ARE BEING DELIVERED FREE, OR WHETHER SAME
ARE BEING SOLD, WITHIN THE LIMITS OF THE CITY OF GRIFFIN, WITHOUT FIRST
OBTAINING WRITTEN PERMISSION FROM THE CITY MANAGER OF THE CITY OF
GRIFFIN, SUCH PRACTICE SHALL BE DEEMED A NUISANCE, AND PUNISHABLE AS AN
OFFENSE AGAINST THE CITY OF GRIFFIN. 

"SECTION 2.  THE CHIEF OF POLICE OF THE CITY OF GRIFFIN AND THE
POLICE FORCE OF THE CITY OF GRIFFIN ARE HEREBY REQUIRED AND DIRECTED TO
SUPPRESS THE SAME AND TO ABATE ANY NUISANCE AS IS DESCRIBED IN THE
FIRST SECTION OF THIS ORDINANCE." 

THE VIOLATION, WHICH IS NOT DENIED, CONSISTED OF THE DISTRIBUTION
WITHOUT THE REQUIRED PERMISSION OF A PAMPHLET AND MAGAZINE IN THE
NATURE OF RELIGIOUS TRACTS, SETTING FORTH THE GOSPEL OF THE "KINGDOM OF
JEHOVAH."  APPELLANT DID NOT APPLY FOR A PERMIT, AS SHE REGARDED
HERSELF AS SENT "BY JEHOVAH TO DO HIS WORK" AND THAT SUCH AN
APPLICATION WOULD HAVE BEEN "AN ACT OF DISOBEDIENCE TO HIS
COMMANDMENT." 

UPON THE TRIAL, WITH PERMISSION OF THE COURT, APPELLANT DEMURRED TO
THE CHARGE AND MOVED TO DISMISS IT UPON A NUMBER OF GROUNDS, AMONG
WHICH WAS THE CONTENTION THAT THE ORDINANCE VIOLATED THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES IN ABRIDGING "THE
FREEDOM OF THE PRESS" AND PROHIBITING "THE FREE EXERCISE OF
PETITIONER'S RELIGION."  THIS CONTENTION WAS THUS EXPRESSED: 

"BECAUSE SAID ORDINANCE IS CONTRARY TO AND IN VIOLATION OF THE FIRST
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, WHICH READS: 

'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.' 

"SAID ORDINANCE IS ALSO CONTRARY TO AND IN VIOLATION OF THE
FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, WHICH
HAD THE EFFECT OF MAKING THE SAID FIRST AMENDMENT APPLICABLE TO THE
STATES, AND WHICH READS: 

'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.' 

"SAID ORDINANCE ABSOLUTELY PROHIBITS THE DISTRIBUTION OF ANY
LITERATURE OF ANY KIND WITHIN THE LIMITS OF THE CITY OF GRIFFIN WITHOUT
THE PERMISSION OF THE CITY MANAGER AND THUS ABRIDGES THE FREEDOM OF THE
PRESS, CONTRARY TO THE PROVISIONS OF SAID QUOTED AMENDMENTS. 

"SAID ORDINANCE ALSO PROHIBITS THE FREE EXERCISE OF PETITIONER'S
RELIGION AND THE PRACTICE THEREOF BY PROHIBITING THE DISTRIBUTION OF
LITERATURE ABOUT PETITIONER'S RELIGION IN VIOLATION OF THE TERMS OF
SAID QUOTED AMENDMENTS." 

THE COURT OF APPEALS, OVERRULING THESE OBJECTIONS, SUSTAINED THE
CONSTITUTIONAL VALIDITY OF THE ORDINANCE, SAYING - 

"THE ORDINANCE IS NOT UNCONSTITUTIONAL BECAUSE IT ABRIDGES THE
FREEDOM OF THE PRESS OR PROHIBITS THE DISTRIBUTION OF LITERATURE ABOUT
THE PETITIONER'S RELIGION, IN VIOLATION OF THE FOURTEENTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES." 

WHILE IN A SEPARATE PARAGRAPH OF ITS OPINION THE COURT SAID THAT THE
CHARGE THAT THE ORDINANCE WAS VOID BECAUSE IT VIOLATED A DESIGNATED
PROVISION OF THE STATE OR FEDERAL CONSTITUTION WITHOUT STATING WHEREIN
THERE WAS SUCH A VIOLATION, WAS TOO INDEFINITE TO PRESENT A
CONSTITUTIONAL QUESTION, WE THINK THAT THIS STATEMENT MUST HAVE
REFERRED TO OTHER GROUNDS OF DEMURRER AND NOT TO THE OBJECTION ABOVE
QUOTED WHICH WAS SUFFICIENTLY SPECIFIC AND WAS DEFINITELY RULED UPON. 
THE CONTENTION AS TO RESTRAINT "UPON THE FREE EXERCISE OF RELIGION,"
WITH RESPECT TO THE SAME ORDINANCE, WAS PRESENTED IN THE CASE OF
COLEMAN V. CITY OF GRIFFIN, 55 GA. APP. 123, AND THE APPEAL WAS
DISMISSED FOR WANT OF A SUBSTANTIAL FEDERAL QUESTION, 302 U.S. 636. 
REYNOLDS V. UNITED STATES, 98 U.S. 145, 166, 167; DAVIS V. BEASON, 133
U.S. 333, 342, 343.  BUT, IN THE COLEMAN CASE, THE COURT DID NOT DEAL
WITH THE QUESTION OF FREEDOM OF SPEECH AND OF THE PRESS, AS IT HAD NOT
BEEN PROPERLY PRESENTED.  WE THINK THAT THIS QUESTION WAS ADEQUATELY
PRESENTED AND WAS DECIDED IN THE INSTANT CASE.  WHETHER IT WAS SO
PRESENTED AND WAS DECIDED IS ITSELF A FEDERAL QUESTION.  CARTER V.
TEXAS, 177 U.S. 442, 447; WARD V. LOVE COUNTY, 253 U.S. 17, 22; FIRST
NATIONAL BANK V. ANDERSON, 269 U.S. 341, 346; SCHUYLKILL TRUST CO. V.
PENNSYLVANIA, 296 U.S. 113, 121.  THIS COURT HAS JURISDICTION. 

FREEDOM OF SPEECH AND FREEDOM OF THE PRESS, WHICH ARE PROTECTED BY THE
FIRST AMENDMENT FROM INFRINGEMENT BY CONGRESS, ARE AMONG THE
FUNDAMENTAL PERSONAL RIGHTS AND LIBERTIES WHICH ARE PROTECTED BY THE
FOURTEENTH AMENDMENT FROM INVASION BY STATE ACTION.  GITLOW V. NEW
YORK, 268 U.S. 652, 666; STROMBERG V. CALIFORNIA, 283 U.S. 359, 368;
NEAR V. MINNESOTA, 283 U.S. 697, 707; GROSJEAN V. AMERICAN PRESS CO.,
297 U.S. 233, 244; DE JONGE V. OREGON, 299 U.S. 353, 364.  SEE, ALSO,
PALKO V. CONNECTICUT, 302 U.S. 319.  IT IS ALSO WELL SETTLED THAT
MUNICIPAL ORDINANCES ADOPTED UNDER STATE AUTHORITY CONSTITUTE STATE
ACTION AND ARE WITHIN THE PROHIBITION OF THE AMENDMENT.  RAYMOND V.
CHICAGO UNION TRACTION CO., 207 U.S. 20; HOME TELEPHONE & TELEGRAPH CO.
V. LOS ANGELES, 227 U.S. 278; CUYAHOGA RIVER POWER CO. V. AKRON, 240
U.S. 462. 

THE ORDINANCE IN ITS BROAD SWEEP PROHIBITS THE DISTRIBUTION OF
"CIRCULARS, HANDBOOKS, ADVERTISING, OR LITERATURE OF ANY KIND."  IT
MANIFESTLY APPLIES TO PAMPHLETS, MAGAZINES AND PERIODICALS.  THE
EVIDENCE AGAINST APPELLANT WAS THAT SHE DISTRIBUTED A CERTAIN PAMPHLET
AND A MAGAZINE CALLED THE "GOLDEN AGE."  WHETHER IN ACTUAL
ADMINISTRATION THE ORDINANCE IS APPLIED, AS APPARENTLY IT COULD BE, TO
NEWSPAPERS DOES NOT APPEAR.  THE CITY MANAGER TESTIFIED THAT "EVERY ONE
APPLIES TO ME FOR A LICENSE TO DISTRIBUTE LITERATURE IN THIS CITY. 
NONE OF THESE PEOPLE (INCLUDING DEFENDANT) SECURED A PERMIT FROM ME TO
DISTRIBUTE LITERATURE IN THE CITY OF GRIFFIN."  THE ORDINANCE IS NOT
LIMITED TO "LITERATURE" THAT IS OBSCENE OR OFFENSIVE TO PUBLIC MORALS
OR THAT ADVOCATES UNLAWFUL CONDUCT.  THERE IS NO SUGGESTION THAT THE
PAMPHLET AND MAGAZINE DISTRIBUTED IN THE INSTANT CASE WERE OF THAT
CHARACTER.  THE ORDINANCE EMBRACES "LITERATURE" IN THE WIDEST SENSE. 

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. 

WE THINK THAT THE ORDINANCE IS INVALID ON ITS FACE.  WHATEVER THE
MOTIVE WHICH INDUCED ITS ADOPTION, ITS CHARACTER IS SUCH THAT IT
STRIKES AT THE VERY FOUNDATION OF THE FREEDOM OF THE PRESS BY
SUBJECTING IT TO LICENSE AND CENSORSHIP.  THE STRUGGLE FOR THE FREEDOM
OF THE PRESS WAS PRIMARILY DIRECTED AGAINST THE POWER OF THE LICENSOR. 
IT WAS AGAINST THAT POWER THAT JOHN MILTON DIRECTED HIS ASSAULT BY HIS
"APPEAL FOR THE LIBERTY OF UNLICENSED PRINTING."  AND THE LIBERTY OF
THE PRESS BECAME INITIALLY A RIGHT TO PUBLISH "WITHOUT A LICENSE WHAT
FORMERLY COULD BE PUBLISHED ONLY WITH ONE."  FN1  WHILE THIS FREEDOM
FROM PREVIOUS RESTRAINT UPON PUBLICATION CANNOT BE REGARDED AS
EXHAUSTING THE GUARANTY OF LIBERTY, THE PREVENTION OF THAT RESTRAINT
WAS A LEADING PURPOSE IN THE ADOPTION OF THE CONSTITUTIONAL PROVISION. 
SEE PATTERSON V. COLORADO, 205 U.S. 454, 462; NEAR V. MINNESOTA, 283
U.S. 697, 713-716; GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 245,
246.  LEGISLATION OF THE TYPE OF THE ORDINANCE IN QUESTION WOULD
RESTORE THE SYSTEM OF LICENSE AND CENSORSHIP IN ITS BALDEST FORM. 
THE LIBERTY OF THE PRESS IS NOT CONFINED TO NEWSPAPERS AND
PERIODICALS.  IT NECESSARILY EMBRACES PAMPHLETS AND LEAFLETS.  THESE
INDEED HAVE BEEN HISTORIC WEAPONS IN THE DEFENSE OF LIBERTY, AS THE
PAMPHLETS OF THOMAS PAINE AND OTHERS IN OUR OWN HISTORY ABUNDANTLY
ATTEST.  THE PRESS IN ITS HISTORIC CONNOTATION COMPREHENDS EVERY SORT
OF PUBLICATION WHICH AFFORDS A VEHICLE OF INFORMATION AND OPINION. 
WHAT WE HAVE HAD RECENT OCCASION TO SAY WITH RESPECT TO THE VITAL
IMPORTANCE OF PROTECTING THIS ESSENTIAL LIBERTY FROM EVERY SORT OF
INFRINGEMENT NEED NOT BE REPEATED.  NEAR V. MINNESOTA, SUPRA; GROSJEAN
V. AMERICAN PRESS CO., SUPRA; DE JONGE V. OREGON, SUPRA.  FN2 

THE ORDINANCE CANNOT BE SAVED BECAUSE IT RELATES TO DISTRIBUTION AND
NOT TO PUBLICATION.  "LIBERTY OF CIRCULATING IS AS ESSENTIAL TO THAT
FREEDOM AS LIBERTY OF PUBLISHING; INDEED, WITHOUT THE CIRCULATION, THE
PUBLICATION WOULD BE OF LITTLE VALUE."  EX PARTE JACKSON, 96 U.S. 727,
733.  THE LICENSE TAX IN GROSJEAN V. AMERICAN PRESS CO., SUPRA, WAS
HELD INVALID BECAUSE OF ITS DIRECT TENDENCY TO RESTRICT CIRCULATION. 

AS THE ORDINANCE IS VOID ON ITS FACE, IT WAS NOT NECESSARY FOR
APPELLANT TO SEEK A PERMIT UNDER IT.  SHE WAS ENTITLED TO CONTEST ITS
VALIDITY IN ANSWER TO THE CHARGE AGAINST HER.  SMITH V. CAHOON, 283
U.S. 553, 562. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  SEE WICKWAR, "THE STRUGGLE FOR THE FREEDOM OF THE PRESS," P.
15. 

FN2  SEE ALSO, STARR COMPANY V. BRUSH, 185 APP. DIV. (N.Y.)  261; 172
N.Y.S. 851; DEARBORN PUBLISHING CO. V. FITZGERALD, 271 FED. 479; IN RE
CAMPBELL, 64 CAL. APP. 300; 221 PAC. 952; COUGHLIN V. SULLIVAN, 100
N.J.L. 42; 126 ATL. 177.  COMPARE PEOPLE V. ARMSTRONG, 73 MICH. 288; 41
N.W. 275; CHICAGO V. SCHULTZ, 341 ILL. 208; 173 N.E. 276; PEOPLE V.
ARMENTROUT, 118 CAL. APP. SUPP. 761; 1 P.2D 556. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :












SANTA CRUZ CO. V. LABOR BOARD, 303 U.S. 453 


NO. 536.  ARGUED MARCH 7, 1938.  - DECIDED MARCH 28, 1938.  - 91 F.2D
790, AFFIRMED. 


1.  A CORPORATION WAS ENGAGED, IN CALIFORNIA, IN THE BUSINESS OF
CANNING FRUITS AND VEGETABLES, RAISED IN THE STATE, AND IN DISPOSING OF
ITS LARGE OUTPUT LOCALLY AND IN INTERSTATE AND FOREIGN COMMERCE, 37%
GOING TO DESTINATIONS BEYOND THE STATE, PARTLY ON F.O.B. SHIPMENT AND
MUCH OF IT BY WATER.  THE GOODS SHIPPED BY BOAT WERE CARRIED TO THE
WHARVES ON TRUCKS LOADED AT THE PLANT BY WAREHOUSEMEN EMPLOYED THERE. 
MANY OF THESE, UPON BEING LOCKED OUT BY THE COMPANY FOR HAVING JOINED A
LABOR UNION, FORMED A PICKET LINE, AND THIS WAS SO MAINTAINED THAT
EVENTUALLY THE MOVEMENT OF TRUCKS FROM WAREHOUSE TO WHARVES CEASED
ENTIRELY.  THE TEAMSTERS REFUSED TO HAUL, THE WAREHOUSEMEN AT THE DOCK
WAREHOUSES DECLINED TO HANDLE, AND THE STEVEDORES BETWEEN DOCK AND SHIP
REFUSED TO LOAD, THE COMPANY'S GOODS.  THE NATIONAL LABOR RELATIONS
BOARD FOUND THAT THE DISCHARGE OF THE EMPLOYEES AND THE REFUSAL TO
REINSTATE THEM CONSTITUTED AN UNLAWFUL DISCRIMINATION UNDER THE
NATIONAL LABOR RELATIONS ACT AND THAT THE ACTS OF THE COMPANY TENDED TO
LEAD, AND HAD LED, TO LABOR DISPUTES BURDENING AND OBSTRUCTING
INTERSTATE COMMERCE.  IT ORDERED THE COMPANY TO DESIST FROM SUCH
PRACTICES, TO REINSTATE, WITH BACK PAY, THE DISCHARGED EMPLOYEES, AND
TO POST NOTICES, ETC.  HELD THAT THE CASE WAS WITHIN THE JURISDICTION
OF THE BOARD AND THAT THE ORDER WAS PROPERLY SUSTAINED BY THE CIRCUIT
COURT OF APPEALS.  PP. 463 ET SEQ. 

2.  SALES TO PURCHASERS IN ANOTHER STATE ARE NOT WITHDRAWN FROM
FEDERAL CONTROL BECAUSE THE GOODS ARE DELIVERED F.O.B. AT STATED POINTS
WITHIN THE STATE OF ORIGIN FOR TRANSPORTATION.  P. 463. 

3.  THE FEDERAL POWER TO PROTECT INTERSTATE COMMERCE IN COMMODITIES
DOES NOT DEPEND UPON THEIR KIND AND HAS BEEN APPLIED TO THE PRACTICES
OF MANUFACTURERS, PROCESSORS AND LABOR UNIONS.  CARTER V. CARTER COAL
CO., 298 U.S. 238, DID NOT ESTABLISH A DIFFERENT PRINCIPLE OR OVERRULE
THE EARLIER DECISIONS.  P. 466. 

4.  THE POWER OF CONGRESS TO PROTECT INTERSTATE COMMERCE IN
MANUFACTURED ARTICLES FROM BURDENS AND OBSTRUCTIONS SPRINGING FROM
LABOR DISPUTES IN THE FACTORY IS NOT DEPENDENT UPON AN ORIGIN OUTSIDE
OF THE STATE OF THE RAW MATERIALS USED IN THE MANUFACTURING PROCESS;
NOR IS THE PLACE WHERE THE MANUFACTURER MAKES HIS SALES A CONTROLLING
ELEMENT, IF THE SALES IN FACT ARE IN INTERSTATE COMMERCE.  NATIONAL
LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1.  P.
464. 

5.  CASES RESPECTING THE STATE POWER TO TAX GOODS WHICH HAVE NOT
BEGUN TO MOVE IN INTERSTATE COMMERCE, OR HAVE COME TO REST WITHIN THE
STATE, OR TO ADOPT LOCAL POLICE MEASURES AFFECTING THEM, DO NOT DEAL
WITH THE EXTENT OF THE POWER OF CONGRESS OVER INTERSTATE COMMERCE BUT
ARE CONCERNED WITH THE QUESTION WHETHER A PARTICULAR EXERCISE OF STATE
POWER, IN VIEW OF ITS NATURE AND OPERATION, MUST BE DEEMED TO BE IN
CONFLICT WITH THAT PARAMOUNT AUTHORITY.  P. 466. 

6.  WHERE FEDERAL CONTROL IS SOUGHT TO BE EXERCISED OVER ACTIVITIES
WHICH SEPARATELY CONSIDERED ARE INTRASTATE, IT MUST APPEAR THAT THERE
IS A CLOSE AND SUBSTANTIAL RELATION TO INTERSTATE COMMERCE IN ORDER TO
JUSTIFY THE FEDERAL INTERVENTION FOR ITS PROTECTION.  P. 466. 

7.  THIS PRINCIPLE IS ESSENTIAL TO THE MAINTENANCE OF OUR
CONSTITUTIONAL SYSTEM.  ID. 

8.  IN MAINTAINING THE BALANCE OF THE CONSTITUTIONAL GRANTS AND
LIMITATIONS, IT IS INEVITABLE THAT WE SHOULD DEFINE THEIR APPLICATIONS
IN THE GRADUAL PROCESS OF INCLUSION AND EXCLUSION.  AND WHAT IS
REASONABLY CLEAR IN A PARTICULAR APPLICATION IS NOT TO BE OVERBORNE BY
THE SIMPLE AND FAMILIAR DIALECTIC OF SUGGESTING DOUBTFUL AND EXTREME
CASES.  P. 467. 

9.  THE QUESTION WHETHER THE LABOR PRACTICES OF AN EMPLOYER ARE
PRACTICES "AFFECTING COMMERCE," AS DEFINED BY SEC. 2(6) OF THE NATIONAL
LABOR RELATIONS ACT, CAN NOT BE ANSWERED BY MERE REFERENCE TO THE
PERCENTAGE OF THE PRODUCT SOLD IN INTERSTATE AND FOREIGN COMMERCE.  THE
QUESTION THAT MUST BE FACED UNDER THE ACT UPON PARTICULAR FACTS IS
WHETHER THE UNFAIR LABOR PRACTICES INVOLVED HAVE SUCH A CLOSE AND
SUBSTANTIAL RELATION TO THE FREEDOM OF INTERSTATE COMMERCE FROM
INJURIOUS RESTRAINT THAT THESE PRACTICES MAY CONSTITUTIONALLY BE MADE
THE SUBJECT OF FEDERAL COGNIZANCE THROUGH PROVISIONS LOOKING TO THE
PEACEABLE ADJUSTMENT OF LABOR DISPUTES.  P. 467. 

SANTA CRUZ FRUIT PACKING CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 680, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AFFIRMING IN PART AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. 

WHERE THERE HAS BEEN NO ANTECEDENT MOVEMENT OF THE RAW PRODUCTS IN
COMMERCE, THE BUSINESS OF CANNING, LABELING, PACKING, STORING AND
LOADING OF FRUIT AND VEGETABLES PRODUCED WHOLLY IN CALIFORNIA IS NOT
"IN COMMERCE."  A LABOR DISPUTE THEREIN CANNOT BURDEN OR OBSTRUCT A
COMMERCE WHICH HAS NOT BEGUN.  THEREFORE THE NATIONAL LABOR RELATIONS
ACT DOES NOT APPLY AND THE BOARD HAD NO JURISDICTION.  CARTER V. CARTER
COAL CO., 298 U.S. 238; SCHECHTER POULTRY CORP. V. UNITED STATES, 295
U.S. 495; VEAZIE V. MOOR, 14 HOW.  568; COE V. ERROL, 116 U.S. 517;
KIDD V. PEARSON, 128 U.S. 1; CHASSANIOL V. GREENWOOD, 291 U.S. 584;
HEISLER V. THOMAS COLLIERY CO., 260 U.S. 245; OLIVER MINING CO. V.
LORD, 262 U.S. 172; UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165;
LEHIGH VALLEY R. CO. V. PENNSYLVANIA, 145 U.S. 192. 

WHERE SMALL QUANTITIES OF A RAW PRODUCT ARE SHIPPED INTO THE STATE
FOR CANNING AND SALE TO LOCAL TRADE IN CALIFORNIA, THE NATIONAL LABOR
RELATIONS ACT DOES NOT APPLY FOR THE REASON THAT COMMERCE IN SUCH
PRODUCT HAS ENDED, AND THE CANNING AND SUBSEQUENT HANDLING ARE LOCAL
AFFAIRS; AND LABOR DISPUTES IN SUCH AFFAIRS DO NOT DIRECTLY BURDEN OR
OBSTRUCT COMMERCE.  SCHECHTER POULTRY CORP. V. UNITED STATES, SUPRA;
EAST OHIO GAS CO. V. TAX COMMISSION, 283 U.S. 465; PUBLIC UTILITIES
COMM'N V. LANDON, 249 U.S. 236; ATLANTIC COAST LINE V. STANDARD OIL
CO., 275 U.S. 257; INDUSTRIAL ASSN. OF SAN FRANCISCO V. UNITED STATES,
268 U.S. 64. 

UNLESS THIS COURT IS WILLING TO GO SO FAR AS TO SAY THAT THE POWER OF
CONGRESS EXTENDS OVER ALL LABOR DISPUTES INVOLVING PRODUCTION
INDUSTRIES, THE BOARD DID NOT HAVE JURISDICTION IN THIS CASE, FOR THE
REASON THAT THE CONSTITUTIONAL POWER OF CONGRESS CANNOT BE MADE TO
DEPEND ON THE INTENTION OF THE PRODUCER TO SELL ITS PRODUCT IN
INTERSTATE OR FOREIGN COMMERCE, OR THE FORTUITOUS CIRCUMSTANCE THAT HE
MAY ULTIMATELY SELL A PART OF SUCH PRODUCT OUTSIDE THE STATE WHEREIN IT
IS PRODUCED.  KIDD V. PEARSON, 128 U.S. 1; CHAMPLIN REFINING CO. V.
CORPORATION COMMISSION, 286 U.S. 210; FEDERAL COMPRESS & W. CO. V.
MCLEAN, 291 U.S. 17; OLIVER MINING CO. V. LORD, SUPRA; CHASSANIOL V.
GREENWOOD, SUPRA; HEISLER V. THOMAS COLLIERY CO., SUPRA; ARKADELPHIA
MILLING CO. V. ST. LOUIS S.W.R. CO., 249 U.S. 134; CARTER V. CARTER
COAL CO., SUPRA. 

THE DESIGNATION OF PETITIONER'S PRODUCE AS "HOT CARGO" BY THE
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION AND THE REFUSAL OF SUCH
ASSOCIATION TO HANDLE SUCH PRODUCT WAS AN UNLAWFUL CONSPIRACY IN
VIOLATION OF THE FEDERAL ANTI-TRUST ACT AND A VIOLATION OF THE SLOSS
ARBITRATION AWARD; AND ANY BURDEN OR OBSTRUCTION TO COMMERCE RESULTING
THEREFROM IS INDIRECT AND REMOTE AND DOES NOT EXTEND THE POWER OF
CONGRESS OR THE JURISDICTION OF THE BOARD OVER PETITIONER'S PRODUCTION
BUSINESS.  BEDFORD CUT STONE CO. V. JOURNEYMEN S.C. ASSN., 274 U.S. 37;
DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443; CORONADO COAL CO.
V. UNITED MINE WORKERS, 268 U.S. 295; LOWE V. LAWLOR, 208 U.S. 274;
ANDERSON V. SHIP OWNERS ASSN., 272 U.S. 359; LOCAL 167 I.B.T. V. UNITED
STATES, 291 U.S. 293. 

THE INSTANT CASE IS NOT IN ANY RESPECT COMPARABLE TO THE CASES
WHEREIN THIS COURT HAD HELD THAT BY REASON OF THE EFFECTS OR BURDENS ON
INTERSTATE COMMERCE THE POWER OF CONGRESS EXTENDS TO THE REGULATION OF
INTRASTATE AFFAIRS. 

RATE CASES:  HOUSTON E. & W.T.R. CO. V. UNITED STATES, 234 U.S. 342;
FLORIDA V. UNITED STATES, 282 U.S. 194; RAILROAD COMMISSION V. CHICAGO,
B. & Q.R. CO., 257 U.S. 563. 

BOARD OF TRADE AND STOCKYARDS CASES:  BOARD OF TRADE V. OLSEN, 262
U.S. 1; HILL V. WALLACE, 259 U.S. 44; SWIFT & CO. V. UNITED STATES, 196
U.S. 375; STAFFORD V. WALLACE, 258 U.S. 495; TAGG BROS. & MOORHEAD V.
UNITED STATES, 280 U.S. 420. 

RAILWAY APPLIANCE, EMPLOYERS' LIABILITY, AND RAILWAY LABOR CASES:
SOUTHERN R. CO. V. UNITED STATES, 222 U.S. 20; BALTIMORE & O.R. CO. V.
INTERSTATE COMMERCE COMM'N, 221 U.S. 612; MONDOU V. NEW YORK, N.H. &
H.R. CO., (SECOND EMPLOYERS' LIABILITY CASES), 223 U.S. 1; TEXAS &
N.O.R. CO. V. BROTHERHOOD OF R. & S.S. CLERKS, 281 U.S. 548; VIRGINIAN
R. CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515. 

ANTI-TRUST CASES:  STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1;
UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106; ADDYSTON PIPE &
STEEL CO. V. UNITED STATES, 175 U.S. 211. 

PETITIONER IS ENGAGED IN CANNING, PACKING, AND SHIPPING FRUIT AND
VEGETABLES IN OAKLAND, CALIFORNIA.  IT IS THE FOURTH OR FIFTH IN SIZE
OF SUCH CANNERIES IN THAT STATE, WHICH IS THE CENTER OF THE CANNING
INDUSTRY IN THE UNITED STATES; AND ANNUALLY SHIPS LARGE QUANTITIES OF
ITS PRODUCTS IN INTERSTATE AND FOREIGN COMMERCE.  STOPPAGE OF
OPERATIONS AS A RESULT OF INDUSTRIAL STRIFE IN PETITIONER'S PLANT WOULD
DIRECTLY OBSTRUCT THE MOVEMENT OF THOSE COMMODITIES IN INTERSTATE AND
FOREIGN COMMERCE.  THERE THUS EXISTS A "CLOSE AND INTIMATE" RELATION
BETWEEN PETITIONER'S OPERATIONS AND THE FLOW OF COMMERCE; AND THE
NATIONAL LABOR RELATIONS ACT ACCORDINGLY MAY VALIDLY BE APPLIED TO
PETITIONER'S PLANT.  NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN
STEEL CORP., 301 U.S. 1, 41. 

1.  THIS CONCLUSION IS NOT AFFECTED BY THE FACT THAT THE PRODUCTS
PROCESSED BY PETITIONER ARE GROWN IN CALIFORNIA.  IN THE JONES &
LAUGHLIN CASE THE COURT EXPRESSLY STATED THAT ITS DECISION DID NOT TURN
ON THE CONCEPTION THAT THE MANUFACTURING PROCESS WAS CARRIED ON IN A
"STREAM" OR "FLOW" OF COMMERCE, WHEREIN THE RAW MATERIALS ARRIVING FROM
WITHOUT THE STATE CAME TO REST TEMPORARILY AT THE PLANT AND LATER WENT
FORWARD AGAIN IN INTERSTATE COMMERCE (301 U.S. AT 36).  THE CONTENTION
THAT THE STREAM OF COMMERCE HAD BEEN BROKEN, THE COURT HELD WAS NOT
RELEVANT TO THE ISSUE INVOLVED (301 U.S. AT 41).  THE DETERMINATIVE
FACTOR WAS THE OBSTRUCTING EFFECT OF INDUSTRIAL STRIFE UPON THE
INTERSTATE MOVEMENT OF GOODS. 

CARTER V. CARTER COAL CO., 298 U.S. 238, DOES NOT SUPPORT
PETITIONER'S CONTENTION.  THE CARTER DECISION DID NOT PURPORT TO REST
ON THE DIFFERENCE BETWEEN MINING OPERATIONS AND MANUFACTURING
ENTERPRISES WHICH UTILIZE RAW MATERIALS OBTAINED THROUGH THE CHANNELS
OF INTERSTATE COMMERCE.  NOR DID THIS COURT IN THE JONES & LAUGHLIN
CASE, IN HOLDING THAT THE CARTER CASE WAS NOT CONTROLLING, SUGGEST THAT
IT WAS TO BE DISTINGUISHED UPON SUCH A GROUND.  THE DANGER OF AN
OBSTRUCTION TO INTERSTATE COMMERCE, AND THE APPROPRIATENESS OF THE
MEANS ADOPTED BY THE CONGRESS TO REMOVE IT, WERE THE DECISIVE FACTORS
IN EACH DECISION. 

THE JONES & LAUGHLIN DECISION ESTABLISHES THAT THE CONGRESS HAS POWER
TO PREVENT THE OBSTRUCTION TO INTERSTATE COMMERCE CAUSED BY THE UNFAIR
LABOR PRACTICES CONDEMNED IN THE PRESENT ACT.  NEITHER THE FACT NOR THE
DEGREE OF OBSTRUCTION TO COMMERCE IN MANUFACTURED PRODUCTS CAN IN
REASON DEPEND UPON THE PLACE OF ORIGIN OF THE RAW MATERIALS.  AS THIS
COURT STATED IN THE JONES & LAUGHLIN CASE, CONGRESSIONAL AUTHORITY OVER
INTERSTATE COMMERCE EXTENDS TO THE PROTECTION OF SUCH COMMERCE "NO
MATTER WHAT THE SOURCE OF THE DANGERS WHICH THREATEN IT" (301 U.S. AT
36-37).  NO DISTINCTION CAN PROPERLY BE DRAWN BETWEEN ACTIVITIES WHICH
OBSTRUCT INTERSTATE COMMERCE IN RAW MATERIALS, IN MANUFACTURED
PRODUCTS, OR BOTH. 

THE GEOGRAPHIC FACT OF CONCENTRATION OF NATURAL RESOURCES IN
PARTICULAR REGIONS, FAR FROM LESSENING NATIONAL CONCERN IN THE
INDUSTRIES IMMEDIATELY DEPENDENT UPON THOSE RESOURCES, HEIGHTENS IT.
IT DOES SO NONE THE LESS BECAUSE OF THE NATURAL, IF NOT NECESSARY,
CIRCUMSTANCE OF THE LOCATION OF SUCH INDUSTRIES AT THE POINT OF
CONCENTRATION OF THE RESOURCES.  THE VIEW WHICH PETITIONER URGES WOULD
FRUSTRATE ONE OF THE GREAT PURPOSES OF THE COMMERCE POWER AS REALIZED
IN THIS STATUTE, BY REMOVING FROM THE REACH OF CONGRESSIONAL PROTECTION
INDUSTRIES WHOSE OPERATIONS IN INTERSTATE AND FOREIGN COMMERCE ARE OF
VITAL IMPORTANCE TO THE NATIONAL WELFARE AND WHOSE INTERRUPTION OR
CESSATION BY INDUSTRIAL STRIFE WOULD CREATE PROBLEMS OF THE DEEPEST
NATIONAL CONCERN. 

2.  APPROXIMATELY 37 PER CENT. OF THE PRODUCT OF PETITIONER'S PLANT
IS SHIPPED IN INTERSTATE OR FOREIGN COMMERCE.  THE SAME EMPLOYEES
PREPARE AND SHIP BOTH THE GOODS WHICH GO TO POINTS OUTSIDE CALIFORNIA
AND THOSE WHICH DO NOT.  NO SEPARATION OF THE EMPLOYEES INTO THOSE
WORKING ON GOODS DESTINED FOR INTERSTATE SHIPMENT AND THOSE WORKING ON
GOODS TO BE CONSUMED IN CALIFORNIA IS POSSIBLE.  CONGRESS HAS POWER TO
REGULATE BOTH INTERSTATE AND INTRASTATE ACTIVITIES WHEN THEY ARE
INSEPARABLY INTERMINGLED IN THIS WAY.  SHREVEPORT CASE, 234 U.S. 342. 
THE SUGGESTION THAT THE POWER OF CONGRESS OVER SUCH INTERMINGLED
TRANSACTIONS DISAPPEARS IF MORE THAN 50 PER CENT. OF THE TRANSACTIONS
ARE INTRASTATE WOULD ESTABLISH AN ARBITRARY AND IMPRACTICAL RULE OF
THUMB IN VIOLATION OF THE FUNDAMENTAL PRINCIPLE OF THE SUPREMACY OF
FEDERAL POWER.  A REVIEW OF THE DECISIONS IN WHICH THIS COURT HAS
SUSTAINED FEDERAL REGULATION OF INTRASTATE ACTIVITIES BECAUSE OF THEIR
DELETERIOUS EFFECTS UPON COMMERCE DEMONSTRATES THAT THE VALIDITY OF
SUCH LEGISLATION HAS NEVER TURNED UPON WHETHER THE INTERSTATE COMMERCE
AFFECTED WAS GREATER IN QUANTITY THAN THE INTRASTATE TRANSACTIONS WHICH
WERE NECESSARILY SUBJECTED ALSO TO THE REGULATION IMPOSED.  CLEARLY,
PROTECTION TO INTERSTATE COMMERCE NEED NOT BE WITHHELD BECAUSE IN
AFFORDING THAT PROTECTION INTRASTATE COMMERCE IS ALSO SAFEGUARDED. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD ON APRIL 2, 1936, AFTER HEARING,
FOUND THAT PETITIONER, SANTA CRUZ FRUIT PACKING COMPANY, A CALIFORNIA
CORPORATION, HAD BEEN ENGAGED IN UNFAIR LABOR PRACTICES AFFECTING
COMMERCE WITHIN THE MEANING OF SEC. 8, SUBDIVISIONS (1) AND (3) AND
SEC. 2, SUBDIVISIONS (6) AND (7) OF THE NATIONAL LABOR RELATIONS ACT,
AND ORDERED PETITIONER TO DESIST FROM SUCH PRACTICES, TO REINSTATE WITH
BACK PAY CERTAIN EMPLOYEES WHO HAD BEEN DISCHARGED, AND TO POST
APPROPRIATE NOTICES.  1 N.L.R.B. 454.  UPON PETITION OF THE BOARD, THE
CIRCUIT COURT OF APPEALS AFFIRMED THE ORDER SO FAR AS IT RELATED TO
PETITIONER'S EMPLOYEES AT ITS OAKLAND PLANT.  91 F.(2D) 790.  IN VIEW
OF THE IMPORTANCE OF THE QUESTION WITH RESPECT TO THE APPLICATION OF
THE NATIONAL LABOR RELATIONS ACT, THIS COURT GRANTED CERTIORARI. 

THERE IS NO DISPUTE AS TO THE PERTINENT FACTS.  THE FINDINGS OF THE
BOARD, SUPPORTED BY EVIDENCE, SHOW THE FOLLOWING: 

PETITIONER IS ENGAGED AT ITS PLANT AT OAKLAND IN CANNING, PACKING AND
SHIPPING FRUIT AND VEGETABLES, THE BULK OF WHICH ARE GROWN IN THAT
STATE.  DURING THE "PEAK" SEASON, PETITIONER EMPLOYS FROM 1200 TO 1500
PERSONS OF WHOM ABOUT 30 ARE WAREHOUSEMEN.  THE TOTAL "PACK" IN THE
YEAR 1935 AMOUNTED TO ABOUT 1,699,270 CASES.  OF THIS AMOUNT ABOUT 37
PER CENT. WERE SHIPPED IN INTERSTATE OR FOREIGN COMMERCE, 9.02 PER
CENT. BEING SENT TO FOREIGN COUNTRIES AND APPROXIMATELY 473,620 CASES,
OR ABOUT 27.89 PER CENT. TO VARIOUS POINTS IN THE UNITED STATES OUTSIDE
CALIFORNIA.  THE SALES TO PURCHASERS OUTSIDE THE STATE WERE UNDER
EITHER F.O.B. OR C.I.F. SAN FRANCISCO BAY POINT CONTRACTS. 

THE METHODS OF TRANSPORTATION ARE BY WATER, RAIL AND TRUCK.  EXPORT
SHIPMENTS GO BY WATER AND THIS IS ALSO THE CHIEF SORT OF CARRIAGE TO
POINTS WITHIN THE UNITED STATES OUTSIDE CALIFORNIA, ABOUT 20 PER CENT.
BEING SHIPPED BY RAIL AND AN UNDETERMINED AMOUNT BY TRUCK DIRECTLY TO
THE POINT OF DESTINATION.  "THERE IS A CONSTANT STREAM OF LOADING AND
SHIPPING OF PRODUCTS" OUT OF PETITIONER'S PLANTS THROUGHOUT THE ENTIRE
YEAR.  FROM 3,000 TO 4,000 CASES ARE LOADED DAILY IN THE VARIOUS
VEHICLES OF CONVEYANCE.  THAT LOADING IS A SUBSTANTIAL AND REGULAR PART
OF THE WORK OF THE WAREHOUSEMEN IN PETITIONER'S EMPLOY.  WHEN THE
SHIPMENTS ARE BY RAIL OR OVERLAND TRUCKS, THESE EMPLOYEES LOAD DIRECTLY
INTO THE EQUIPMENT OF THE PRINCIPAL CARRIERS.  WHEN SHIPMENTS ARE BY
BOAT, THE WAREHOUSEMEN LOAD THE CASES INTO THE TRUCKS WHICH CARRY THE
GOODS TO THE DOCKS. 

WEIGHERS, WAREHOUSEMEN AND CEREAL WORKERS LOCAL 38-44, INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION, IS A LABOR ORGANIZATION AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR.  ITS EFFORTS TO ORGANIZE THE OAKLAND
PLANT WERE BEGUN IN JULY, 1935, AND MANY OF THE PERMANENT WAREHOUSEMEN
MADE APPLICATION FOR MEMBERSHIP.  WHEN THIS CAME TO THE ATTENTION OF
PETITIONER EARLY IN AUGUST, THE GENERAL MANAGER ANNOUNCED THAT HE WOULD
NOT PERMIT A UNION IN THE PLANT BECAUSE OF COMPETITIVE CONDITIONS.  ON
THEIR RETURN FROM A UNION MEETING AT WHICH THE MEN WERE TO BE
INITIATED, MEMBERS OF THE NIGHT SHIFT WERE PREVENTED FROM ENTERING THE
PLANT AND THE NEXT MORNING THE MEMBERS OF THE DAY CREW WERE SIMILARLY
EXCLUDED.  A PICKET LINE THEN FORMED, ON THE MORNING OF AUGUST 8TH, WAS
MAINTAINED UNTIL SEPTEMBER 27TH WITH SUCH EFFECTIVENESS THAT EVENTUALLY
THE MOVEMENT OF TRUCKS FROM WAREHOUSES TO WHARVES CEASED ENTIRELY.  THE
BOARD FOUND:  "THE TEAMSTERS REFUSED TO HAUL SANTA CRUZ MERCHANDISE;
THE WAREHOUSEMEN AT THE DOCK WAREHOUSES WHO ORDINARILY UNLOAD THE
CANNED GOODS FROM THE CARS PRIOR TO THEIR RELOADING INTO THE SHIPS,
SINCE THEY WERE MEMBERS OF THE SAME UNION AS THE SANTA CRUZ
WAREHOUSEMEN, ALSO DECLINED TO HANDLE SANTA CRUZ CARGO.  AS MEMBERS OF
THE SISTER UNION, I.L.A. 38-79, THE STEVEDORES WHO MOVE THE GOODS FROM
DOCK TO SHIP ALSO REFUSED TO MOVE SANTA CRUZ CARGO BOTH AT THE EAST BAY
AND SAN FRANCISCO DOCKS DURING THE ENTIRE PERIOD THAT THE PICKET LINE
WAS MAINTAINED.  OTHER UNIONS WHOSE MEMBERS REFUSED TO MOVE 'HOT' SANTA
CRUZ CARGO WERE THOSE MEMBERS OF THE SAILORS WHO COMPRISED THE CREWS OF
STEAM SCHOONERS AND WHOSE DUTIES INCLUDE THE HANDLING OF CARGO." 
PETITIONER POINTS OUT THAT THE REFUSAL OF THE OTHER UNIONS TO HANDLE
PETITIONER'S GOODS WAS A VIOLATION OF AN ARBITRATION AWARD MADE IN
OCTOBER, 1934, FOLLOWING THE SAN FRANCISCO MARITIME STRIKE OF THAT
YEAR. 

THE BOARD FOUND THAT INTERFERENCE WITH THE ACTIVITIES OF EMPLOYEES IN
FORMING OR JOINING LABOR ORGANIZATIONS RESULTS IN STRIKES AND
INDUSTRIAL UNREST WHICH HABITUALLY HAVE HAD THE EFFECT IN THE CANNING
INDUSTRY OF IMPEDING THE MOVEMENT OF CANNED PRODUCTS IN INTERSTATE AND
FOREIGN COMMERCE.  REFERENCE WAS MADE TO OFFICIAL STATISTICS OF THE
UNITED STATES DEPARTMENT OF LABOR IN RELATION TO THE CANNING AND
PRESERVING INDUSTRIES FROM WHICH IT APPEARED THAT OF THE FIFTEEN
STRIKES AND LOCKOUTS IN 1934, AND THE FIRST SIX MONTHS OF 1935, EIGHT
WERE THE OUTCOME OF DIFFICULTIES IN REGARD TO UNION RECOGNITION AND
DISCRIMINATION FOR UNION ACTIVITIES, 7,484 WORKERS BEING INVOLVED IN
THOSE STOPPAGES. 

THE BOARD CONCLUDED THAT THE DISCHARGE OF THE EMPLOYEES NAMED AND THE
REFUSAL TO REINSTATE THEM CONSTITUTED AN UNLAWFUL DISCRIMINATION UNDER
THE NATIONAL LABOR RELATIONS ACT AND THAT THE ACTS OF PETITIONER HAD
LED AND TENDED TO LEAD TO LABOR DISPUTES BURDENING AND OBSTRUCTING
COMMERCE. 

PETITIONER CONTENDS THAT THE MANUFACTURING AND PROCESSING IN WHICH
PETITIONER IS ENGAGED ARE LOCAL ACTIVITIES AND THAT THE BOARD WAS
WITHOUT JURISDICTION OVER THE LABOR DISPUTE INVOLVED IN THIS CASE. 

FIRST.  THERE IS NO QUESTION THAT PETITIONER WAS DIRECTLY AND LARGELY
ENGAGED IN INTERSTATE AND FOREIGN COMMERCE.  WE HAVE OFTEN DECIDED THAT
SALES TO PURCHASERS IN ANOTHER STATE ARE NOT WITHDRAWN FROM FEDERAL
CONTROL BECAUSE THE GOODS ARE DELIVERED F.O.B. AT STATED POINTS WITHIN
THE STATE OF ORIGIN FOR TRANSPORTATION.  SEE SAVAGE V. JONES, 225 U.S.
501, 520; TEXAS & N.O.R. CO. V. SABINE TRAM CO., 227 U.S. 111, 114,
122; PENNSYLVANIA R. CO. V. CLARK BROS. COAL MINING CO., 238 U.S. 456,
465-468.  A LARGE PART OF THE INTERSTATE COMMERCE OF THE COUNTRY IS
CONDUCTED UPON THAT BASIS AND THE ARRANGEMENTS THAT ARE MADE BETWEEN
SELLER AND PURCHASER WITH RESPECT TO THE PLACE OF TAKING TITLE TO THE
COMMODITY, OR AS TO THE PAYMENT OF FREIGHT, WHERE THE ACTUAL MOVEMENT
IS INTERSTATE, DO NOT AFFECT EITHER THE POWER OF CONGRESS OR THE
JURISDICTION OF THE AGENCIES WHICH CONGRESS HAS ESTABLISHED. 
PENNSYLVANIA R. CO. V. CLARK BROS. COAL MINING CO., SUPRA. 

SECOND.  THE POWER OF CONGRESS EXTENDS NOT ONLY TO THE MAKING OF
RULES GOVERNING SALES OF PETITIONER'S PRODUCTS IN INTERSTATE COMMERCE,
AS, FOR EXAMPLE, WITH RESPECT TO MISBRANDING UNDER THE FEDERAL FOOD AND
DRUGS ACT (21 U.S.C., SECS. 1 TO 26), OR WITH RESPECT TO FORBIDDEN
DISCRIMINATIONS IN PRICES UNDER THE CLAYTON ACT (15 U.S.C. 13), BUT
ALSO TO THE PROTECTION OF THAT INTERSTATE COMMERCE FROM BURDENS,
OBSTRUCTIONS AND INTERRUPTIONS, WHATEVER MAY BE THEIR SOURCE.  SECOND
EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 51.  THE CLOSE AND INTIMATE
EFFECT WHICH BRINGS THE SUBJECT WITHIN THE REACH OF FEDERAL POWER MAY
BE DUE TO ACTIVITIES IN RELATION TO PRODUCTIVE INDUSTRY, ALTHOUGH THAT
INDUSTRY WHEN SEPARATELY VIEWED IS LOCAL.  IT IS UPON THIS WELL
ESTABLISHED PRINCIPLE THAT THE CONSTITUTIONAL VALIDITY OF THE NATIONAL
LABOR RELATIONS ACT HAS BEEN SUSTAINED.  NATIONAL LABOR RELATIONS BOARD
V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 38. 

PETITIONER URGES THAT THE PRINCIPLE IS INAPPLICABLE HERE AS THE
FRUITS AND VEGETABLES WHICH PETITIONER PREPARES FOR SHIPMENT ARE GROWN
IN CALIFORNIA AND PETITIONER'S OPERATIONS ARE CONFINED TO THAT STATE. 
IT IS NOT A CASE WHERE THE RAW MATERIALS OF PRODUCTION ARE BROUGHT INTO
THE STATE OF MANUFACTURE AND THE MANUFACTURED PRODUCT IS HANDLED BY THE
MANUFACTURER IN OTHER STATES.  IN VIEW OF THE INTERSTATE COMMERCE
ACTUALLY CARRIED ON BY PETITIONER, THE CONCLUSION SOUGHT TO BE DRAWN
FROM THIS DISTINCTION IS WITHOUT MERIT.  THE EXISTENCE OF A CONTINUOUS
FLOW OF INTERSTATE COMMERCE THROUGH THE STATE MAY INDEED READILY SHOW
THE INTIMATE RELATION OF PARTICULAR TRANSACTIONS TO THAT COMMERCE. 
STAFFORD V. WALLACE, 258 U.S. 495, 516; CHICAGO BOARD OF TRADE V.
OLSEN, 262 U.S. 1, 33.  BUT, AS WE SAID IN THE JONES & LAUGHLIN CASE,
THE INSTANCES IN WHICH THE METAPHOR OF A "STREAM OF COMMERCE" HAS BEEN
USED ARE BUT PARTICULAR, AND NOT EXCLUSIVE, ILLUSTRATIONS OF THE
PROTECTIVE POWER WHICH CONGRESS MAY EXERCISE.  "THE CONGRESSIONAL
AUTHORITY TO PROTECT INTERSTATE COMMERCE FROM BURDENS AND OBSTRUCTIONS
IS NOT LIMITED TO TRANSACTIONS WHICH CAN BE DEEMED TO BE AN ESSENTIAL
PART OF A 'FLOW' OF INTERSTATE OR FOREIGN COMMERCE.  BURDENS AND
OBSTRUCTIONS MAY BE DUE TO INJURIOUS ACTIONS SPRINGING FROM OTHER
SOURCES."  ID., P. 36. 

SUCH INJURIOUS ACTION BURDENING AND OBSTRUCTING INTERSTATE TRADE IN
MANUFACTURED ARTICLES MAY SPRING FROM LABOR DISPUTES IRRESPECTIVE OF
THE ORIGIN OF THE MATERIALS USED IN THE MANUFACTURING PROCESS.  AND THE
PLACE WHERE THE MANUFACTURER MAKES HIS SALES IS NOT CONTROLLING IF THE
SALES IN FACT ARE IN INTERSTATE COMMERCE.  A FEW ILLUSTRATIONS, FROM
OUR MANY DECISIONS, WILL SUFFICE.  IN LOEWE V. LAWLOR (1908), 208 U.S.
274, 302, THE CONSPIRACY OF THE "UNITED HATTERS," TO COMPEL THE
PLAINTIFFS TO UNIONIZE THEIR FACTORY, WAS HELD TO FALL WITHIN THE
FEDERAL ANTI-TRUST ACT BECAUSE IT WAS AIMED AT THE DESTRUCTION OF THE
INTERSTATE TRADE IN THE MANUFACTURED HATS.  IN UNITED MINE WORKERS V.
CORONADO CO. (1922), 259 U.S. 344, 407, 408, THE COURT SAID THAT "COAL
MINING IS NOT INTERSTATE COMMERCE AND THE POWER OF CONGRESS DOES NOT
EXTEND TO ITS REGULATION AS SUCH," BUT THAT "IF CONGRESS DEEMS CERTAIN
RECURRING PRACTICES, THOUGH NOT REALLY PART OF INTERSTATE COMMERCE,
LIKELY TO OBSTRUCT, RESTRAIN OR BURDEN IT, IT HAS THE POWER TO SUBJECT
THEM TO NATIONAL SUPERVISION AND RESTRAINT."  AND IN THE SECOND
CORONADO CASE (1925), 268 U.S. 295, 310, THE COURT HELD THAT THE
EVIDENCE WAS ADEQUATE TO SHOW THAT THE PURPOSE WAS TO STOP THE
PRODUCTION OF NON-UNION COAL AND PREVENT ITS SHIPMENT TO MARKETS OF
OTHER STATES, AND THAT A COMBINATION TO THAT END WOULD CONSTITUTE A
DIRECT VIOLATION OF THE ANTI-TRUST ACT.  ANOTHER ILLUSTRATION IS FOUND
IN BEDFORD CUT STONE CO. V. JOURNEYMEN STONE CUTTERS' ASSN. (1927), 274
U.S. 37, 48, WHERE A CONSPIRACY OF STONE CUTTERS WAS HELD TO HAVE "THE
IMMEDIATE PURPOSE AND NECESSARY EFFECT OF RESTRAINING FUTURE SALES AND
SHIPMENTS IN INTERSTATE COMMERCE" OF THE BUILDING STONE WHICH WAS
QUARRIED AT PETITIONER'S PLANTS. 

WITH RESPECT TO THE FEDERAL POWER TO PROTECT INTERSTATE COMMERCE IN
THE COMMODITIES PRODUCED, THERE IS OBVIOUSLY NO DIFFERENCE BETWEEN COAL
MINED, OR STONE QUARRIED, AND FRUIT AND VEGETABLES GROWN.  THE SAME
PRINCIPLE MUST APPLY, AND HAS BEEN APPLIED, TO INJURIOUS RESTRAINTS OF
INTERSTATE TRADE WHICH ARE CAUSED BY THE PRACTICES OF MANUFACTURERS AND
PROCESSORS.  STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; UNITED
STATES V. AMERICAN TOBACCO CO., 221 U.S. 106.  THE CASE OF CARTER V.
CARTER COAL CO., 298 U.S. 238, DID NOT ESTABLISH A DIFFERENT PRINCIPLE
OR OVERRULE THE DECISIONS WHICH WE HAVE CITED.  SEE NATIONAL LABOR
RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., SUPRA, P. 41.  NOR ARE
THE CASES IN POINT WHICH ARE CITED BY PETITIONER WITH RESPECT TO THE
EXERCISE OF THE POWER OF THE STATE TO TAX GOODS, WHICH HAVE NOT BEGUN
TO MOVE IN INTERSTATE COMMERCE OR HAVE COME TO REST WITHIN THE STATE,
OR TO ADOPT POLICE MEASURES AS TO LOCAL MATTERS.  IN THAT CLASS OF
CASES THE QUESTION IS NOT WITH RESPECT TO THE EXTENT OF THE POWER OF
CONGRESS TO PROTECT INTERSTATE COMMERCE, BUT WHETHER A PARTICULAR
EXERCISE OF STATE POWER IN VIEW OF ITS NATURE AND OPERATION MUST BE
DEEMED TO BE IN CONFLICT WITH THAT PARAMOUNT AUTHORITY.  BACON V.
ILLINOIS, 227 U.S. 504, 516; STAFFORD V. WALLACE, SUPRA, P. 526;
MINNESOTA V. BLASIUS, 290 U.S. 1, 8. 

THIRD.  IT IS ALSO CLEAR THAT WHERE FEDERAL CONTROL IS SOUGHT TO BE
EXERCISED OVER ACTIVITIES WHICH SEPARATELY CONSIDERED ARE INTRASTATE,
IT MUST APPEAR THAT THERE IS A CLOSE AND SUBSTANTIAL RELATION TO
INTERSTATE COMMERCE IN ORDER TO JUSTIFY THE FEDERAL INTERVENTION FOR
ITS PROTECTION.  HOWEVER DIFFICULT IN APPLICATION, THIS PRINCIPLE IS
ESSENTIAL TO THE MAINTENANCE OF OUR CONSTITUTIONAL SYSTEM.  THE SUBJECT
OF FEDERAL POWER IS STILL "COMMERCE," AND NOT ALL COMMERCE BUT COMMERCE
WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES.  THE EXPANSION OF
ENTERPRISE HAS VASTLY INCREASED THE INTERESTS OF INTERSTATE COMMERCE
BUT THE CONSTITUTIONAL DIFFERENTIATION STILL OBTAINS.  SCHECHTER
CORPORATION V. UNITED STATES, 295 U.S. 495, 546.  "ACTIVITIES LOCAL IN
THEIR IMMEDIACY DO NOT BECOME INTERSTATE AND NATIONAL BECAUSE OF
DISTANT REPERCUSSIONS."  ID., P. 554. 

TO EXPRESS THIS ESSENTIAL DISTINCTION, "DIRECT" HAS BEEN CONTRASTED
WITH "INDIRECT," AND WHAT IS "REMOTE" OR "DISTANT" WITH WHAT IS "CLOSE
AND SUBSTANTIAL."  WHATEVER TERMINOLOGY IS USED, THE CRITERION IS
NECESSARILY ONE OF DEGREE AND MUST BE SO DEFINED.  THIS DOES NOT
SATISFY THOSE WHO SEEK FOR MATHEMATICAL OR RIGID FORMULAS.  BUT SUCH
FORMULAS ARE NOT PROVIDED BY THE GREAT CONCEPTS OF THE CONSTITUTION
SUCH AS "INTERSTATE COMMERCE," "DUE PROCESS," "EQUAL PROTECTION."  IN
MAINTAINING THE BALANCE OF THE CONSTITUTIONAL GRANTS AND LIMITATIONS,
IT IS INEVITABLE THAT WE SHOULD DEFINE THEIR APPLICATIONS IN THE
GRADUAL PROCESS OF INCLUSION AND EXCLUSION. 

THERE IS THUS NO POINT IN THE INSTANT CASE IN A DEMAND FOR THE
DRAWING OF A MATHEMATICAL LINE.  AND WHAT IS REASONABLY CLEAR IN A
PARTICULAR APPLICATION IS NOT TO BE OVERBORNE BY THE SIMPLE AND
FAMILIAR DIALECTIC OF SUGGESTING DOUBTFUL AND EXTREME CASES.  THE
CRITICAL WORDS OF THE PROVISION OF THE NATIONAL LABOR RELATIONS ACT IN
DEALING WITH THE DESCRIBED LABOR PRACTICES ARE "AFFECTING COMMERCE," AS
DEFINED.  SEC. 2(6).  IT IS PLAIN THAT THE PROVISION CANNOT BE APPLIED
BY A MERE REFERENCE TO PERCENTAGES AND THE FACT THAT PETITIONER'S SALES
IN INTERSTATE AND FOREIGN COMMERCE AMOUNTED TO 37 PER CENT., AND NOT TO
MORE THAN 50 PER CENT., OF ITS PRODUCTION CANNOT BE DEEMED
CONTROLLING.  THE QUESTION THAT MUST BE FACED UNDER THE ACT UPON
PARTICULAR FACTS IS WHETHER THE UNFAIR LABOR PRACTICES INVOLVED HAVE
SUCH A CLOSE AND SUBSTANTIAL RELATION TO THE FREEDOM OF INTERSTATE
COMMERCE FROM INJURIOUS RESTRAINT THAT THESE PRACTICES MAY
CONSTITUTIONALLY BE MADE THE SUBJECT OF FEDERAL COGNIZANCE THROUGH
PROVISIONS LOOKING TO THE PEACEABLE ADJUSTMENT OF LABOR DISPUTES. 

THE QUESTION OF DEGREE IS CONSTANTLY MET IN OTHER RELATIONS.  IT IS
MET WHENEVER THE INTERSTATE COMMERCE COMMISSION IS REQUIRED TO FIND
WHETHER AN INTRASTATE RATE OR PRACTICE OF AN INTERSTATE CARRIER CAUSES
AN UNDUE AND UNREASONABLE DISCRIMINATION AGAINST INTERSTATE OR FOREIGN
COMMERCE.  49 U.S.C. SEC. 13(4).  THE SHREVEPORT CASE, 234 U.S. 342,
351.  IT IS MET UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT, WHERE THE
QUESTION IS WHETHER THE EMPLOYEE'S OCCUPATION AT THE TIME OF HIS INJURY
IS "IN INTERSTATE TRANSPORTATION OR WORK SO CLOSELY RELATED TO SUCH
TRANSPORTATION AS TO BE PRACTICALLY A PART OF IT."  CHICAGO & N.W. RY.
CO. V. BOLLE, 284 U.S. 74, 78, 79; NEW YORK, N.H. & H.R. CO. V. BEZUE,
284 U.S. 415, 420.  IT IS MET IN THE ENFORCEMENT OF THE CLAYTON ACT IN
DETERMINING WHETHER THE EFFECT OF THE DESCRIBED PROVISIONS IN CONTRACTS
FOR THE SALE OF COMMODITIES IS "TO SUBSTANTIALLY LESSEN COMPETITION." 
15 U.S.C., 13, 14.  STANDARD FASHION CO. V. MAGRANE-HOUSTON CO., 258
U.S. 346, 356, 357; FEDERAL TRADE COMM'N V. RALADAM CO., 283 U.S. 643,
647, 648. 

SUCH QUESTIONS CANNOT BE ESCAPED BY THE ADOPTION OF ANY ARTIFICIAL
RULE. 

FOURTH.  THE DIRECT RELATION OF THE LABOR PRACTICES AND THE RESULTING
LABOR DISPUTE IN THE INSTANT CASE TO INTERSTATE COMMERCE AND THE
INJURIOUS EFFECT UPON THAT COMMERCE ARE FULLY ESTABLISHED.  THE
WAREHOUSEMEN IN QUESTION WERE EMPLOYED BY PETITIONER IN LOADING ITS
GOODS EITHER INTO THE CARS OF CARRIERS OR INTO THE TRUCKS WHICH
TRANSPORTED THE GOODS TO THE DOCKS FOR SHIPMENT ABROAD OR TO OTHER
STATES.  THE IMMEDIACY OF THE EFFECT OF THE FORBIDDEN DISCRIMINATION
AGAINST THESE WAREHOUSEMEN IS STRIKINGLY SHOWN BY THE FINDINGS OF THE
BOARD.  WHEN THE MEN FOUND THEMSELVES LOCKED OUT BECAUSE OF THEIR
JOINING THE UNION, THEY AT ONCE FORMED A PICKET LINE AND THIS WAS
MAINTAINED WITH SUCH EFFECTIVENESS THAT EVENTUALLY "THE MOVEMENT OF
TRUCKS FROM WAREHOUSE TO WHARVES CEASED ENTIRELY."  THE TEAMSTERS
REFUSED TO HAUL, THE WAREHOUSEMEN AT THE DOCK WAREHOUSES DECLINED TO
HANDLE, AND THE STEVEDORES BETWEEN DOCK AND SHIP REFUSED TO LOAD,
PETITIONER'S GOODS.  THESE BECAME, IN THE PARLANCE OF THE MEN, "HOT"
CARGO.  PETITIONER SAYS THAT THIS WAS AN UNLAWFUL CONSPIRACY OF THOSE
SYMPATHIZING WITH ITS DISCHARGED WAREHOUSEMEN, BUT IT WAS THE
DISCRIMINATION AGAINST THEM WHICH LED DIRECTLY TO THE INTERFERENCE WITH
THE MOVEMENT FROM THE PLANT AND ELICITED THE SUPPORT SO EFFECTIVELY
GIVEN. 

IT WOULD BE DIFFICULT TO FIND A CASE IN WHICH UNFAIR LABOR PRACTICES
HAD A MORE DIRECT EFFECT UPON INTERSTATE AND FOREIGN COMMERCE. 

THE RELIEF AFFORDED BY THE BOARD, IN REQUIRING PETITIONER TO DESIST
FROM THE UNFAIR LABOR PRACTICES CONDEMNED BY THE ACT AND TO REINSTATE
THE DISCHARGED EMPLOYEES WITH BACK PAY, WAS PROPERLY SUSTAINED BY THE
CIRCUIT COURT OF APPEALS, AND ITS ORDER IS AFFIRMED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE.    MR. JUSTICE BUTLER,
DISSENTING. 

CARTER V. CARTER COAL CO., 298 U.S. 238, DECIDED THAT CONGRESS LACKS
POWER TO REGULATE TERMS AND CONDITIONS OF EMPLOYMENT OF THOSE ENGAGED
IN LOCAL PRODUCTION OF COMMODITIES SOLD AND ABOUT TO BE SHIPPED IN
INTERSTATE COMMERCE.  THE CIRCUIT COURT OF APPEALS FOUND TWO QUESTIONS
FOR SOLUTION.  ONE WAS WHETHER UPON THAT POINT THE CARTER CASE, IN
1936, HAS BEEN OVERRULED BY OUR DECISION IN 1937 IN LABOR BOARD V.
JONES & LAUGHLIN, 301 U.S. 1.  THE SECOND WAS WHETHER THE POWER EXTENDS
TO CASES WHERE ONLY 39% OF GOODS LOCALLY PRODUCED ARE SHIPPED IN
INTERSTATE COMMERCE.  THE COURT, ONE JUDGE DISSENTING, UPHELD THE
ORDER.  EACH OF THE JUDGES WROTE AN OPINION; TWO HELD THIS COURT HAS
OVERRULED THE CARTER CASE. 

IF THE DECISION OF THE CARTER CASE UPON THE POINT STATED STANDS, THE
BOARD'S ORDER CANNOT BE UPHELD.  THE LOWER COURT MADE ITS DECISION
DEPEND UPON THAT QUESTION.  SAVE AUTHORITATIVELY TO DECIDE IT HERE,
THERE WAS NO REASON FOR GRANTING THE WRIT.  BUT THE OPINION JUST
ANNOUNCED DOES NOT REFER TO THE QUESTION. 

IN THE JONES & LAUGHLIN AND COMPANION CASES, FOUR DISSENTING JUSTICES
THOUGHT THE COURT THEN DEPARTED FROM WELL-ESTABLISHED PRINCIPLES
FOLLOWED IN THE CARTER CASE AND QUOTED (P. 96) A PASSAGE FROM IT
EXPOUNDING WHAT IT MEANT BY "DIRECT" EFFECT ON INTERSTATE COMMERCE AS
DISTINGUISHED FROM WHAT IS "INDIRECT."  AND THE DISSENTING OPINION
INSISTED (P. 97) THAT, UNDER THE CARTER DECISION, THE FACTS IN THOSE
CASES DID NOT DISCLOSE ANY DIRECT EFFECT UPON INTERSTATE COMMERCE, AND
SAID: "A MORE REMOTE AND INDIRECT INTERFERENCE WITH INTERSTATE COMMERCE
OR A MORE DEFINITE INVASION OF THE POWERS RESERVED TO THE STATES IS
DIFFICULT, IF NOT IMPOSSIBLE, TO IMAGINE." 

BUT THE DISSENT FAILED TO ELICIT FROM THE COURT ANY STATEMENT AS TO
WHETHER IT MEANT TO OVERRULE THE CARTER CASE.  THE OPINION DOES NOT
DISCUSS THAT CASE.  IT DOES, HOWEVER, CONTAIN THE FOLLOWING (P. 41):
"IN THE CARTER CASE  ...  THE COURT WAS OF THE OPINION THAT THE
PROVISIONS OF THE STATUTE RELATING TO PRODUCTION WERE INVALID UPON
SEVERAL GROUNDS,  - THAT THERE WAS IMPROPER DELEGATION OF LEGISLATIVE
POWER, AND THAT THE REQUIREMENTS NOT ONLY WENT BEYOND ANY SUSTAINABLE
MEASURE OF PROTECTION OF INTERSTATE COMMERCE BUT WERE ALSO INCONSISTENT
WITH DUE PROCESS.  THESE (MEANING THE SCHECHTER AND CARTER) CASES ARE
NOT CONTROLLING HERE."  THE LATER DECISIONS OF THIS COURT INVOLVING THE
POWER OF CONGRESS TO DEAL WITH LABOR RELATIONS IN LOCAL PRODUCTION DO
NOT REFER TO THE CARTER CASE.  AT LEAST UNTIL THIS COURT DEFINITELY
OVERRULES THAT DECISION, IT SHOULD BE FOLLOWED. 

UPON THE AUTHORITY OF THAT CASE, I WOULD REVERSE THE ORDER OF THE
CIRCUIT COURT OF APPEALS ON THE GROUND THAT, AS APPLIED HERE, THE ACT
IS UNCONSTITUTIONAL. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 
..END :




















DEITRICK V. STANDARD SURETY CO., 303 U.S. 471 


NO. 455.  ARGUED MARCH 7, 8, 1938.  - DECIDED MARCH 28, 1938.  - 90 F.2D
862, 866, AFFIRMED. 


1.  A DEFENSE OF FRAUD, GOOD AGAINST A NATIONAL BANK IN AN ACTION TO
ENFORCE A CONTRACT, IS GOOD AGAINST THE BANK'S RECEIVER IN SUCH AN
ACTION.  P. 479. 

2.  THE RECEIVER OF A NATIONAL BANK SOUGHT TO ENFORCE AGAINST A
SURETY COMPANY, AS CONTRACTS MADE TO THE BANK, BONDS PURPORTING TO HAVE
BEEN EXECUTED BY THE COMPANY THROUGH A GENERAL AGENT AND PURPORTING TO
GUARANTEE PAYMENT OF CERTAIN NOTES HELD BY THE BANK.  THE SURETY
ALLEGED AND THE PROOFS SHOWED THAT THE BONDS WERE OBTAINED BY THE BANK
THROUGH THE FRAUD OF THE BANK'S PRESIDENT IN COLLUSION WITH THE
SURETY'S AGENT.  THERE WAS EVIDENCE THAT THE AGENT KNEW THE BONDS WOULD
BE SHOWN TO THE BANK DIRECTORS AND TO ANY OTHERS ENTITLED TO INQUIRE
CONCERNING THE NOTES, FOR THE PURPOSES OF DECEPTION.  HELD THAT THE
PLEADINGS AFFORDED NO BASIS FOR A RECOVERY BY THE RECEIVER UPON THE
THEORY THAT BECAUSE THE COMPTROLLER AND NATIONAL BANK EXAMINERS WERE
DECEIVED BY THE BONDS TO THE INJURY OF CREDITORS, THEREFORE THE SURETY
WAS ESTOPPED TO DENY THEIR VALIDITY AS AGAINST THE RECEIVER,
REPRESENTATIVE OF SUCH CREDITORS.  P. 479. 

DEITRICK, RECEIVER, ET AL. V. STANDARD SURETY & CASUALTY CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 302 U.S. 676, TO REVIEW THE AFFIRMANCE OF JUDGMENTS AND
DECREES OF THE DISTRICT COURT IN ACTIONS AT LAW BROUGHT BY THE
PREDECESSOR OF THE ABOVE-NAMED PETITIONER, RECEIVER OF A NATIONAL BANK,
TO RECOVER FROM THE SURETY COMPANY ON BONDS HELD BY THE BANK, AND IN
SUITS IN EQUITY BROUGHT BY THE SURETY COMPANY IN A STATE COURT AND
SUBSEQUENTLY REMOVED, IN WHICH THE SURETY SOUGHT TO HAVE THE BONDS
CANCELED FOR FRAUD.  THE CASES WERE HEARD IN CONJUNCTION BY THE
DISTRICT COURT, AND EVIDENCE WAS TAKEN AND FINDINGS WERE MADE BY AN
AUDITOR AND MASTER.  THAT COURT DISMISSED THE ACTIONS AND DECREED IN
THE SURETY'S FAVOR. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE BOSTON-CONTINENTAL NATIONAL BANK, ESTABLISHED IN DECEMBER 1930
THROUGH CONSOLIDATION OF BOSTON NATIONAL BANK AND CONTINENTAL NATIONAL
BANK, BECAME INSOLVENT.  DECEMBER 17, 1931, A RECEIVER APPOINTED BY THE
COMPTROLLER OF THE CURRENCY TOOK CHARGE OF ITS AFFAIRS.  PETITIONER IS
HIS SUCCESSOR.  AMONG THE BANK'S EFFECTS WERE FOUR "NOTE-GUARANTY"
BONDS - $40,000, $52,000, $20,000 AND $20,000 - ALIKE IN FORM, DATED IN
AUGUST AND DECEMBER 1930 AND JUNE AND JULY 1931, WITH CERTAIN
"ENDORSEMENTS" SHOWING EXTENSIONS.  EACH PURPORTED TO BE EXECUTED BY
THE MAKER OF A DESCRIBED NOTE AS PRINCIPAL WITH RESPONDENT AS SURETY,
AND WAS CONDITIONED TO PAY TO THE BANK THE AMOUNT OF THE NOTE UPON
DEFAULT, &C. 

IN JUNE AND SEPTEMBER 1932 THE RECEIVER BROUGHT SEPARATE ACTIONS AT
LAW UPON THREE OF THESE BONDS.  IN EACH HE ALLEGED THAT THE COMPANY WAS
INDEBTED TO HIM FOR THE SPECIFIED PENALTY WITH INTEREST; AND FOR THIS
HE ASKED JUDGMENT.  THE THREE DECLARATIONS ARE ALIKE IN FORM AND
ALLEGATIONS.  ONE, TYPICAL OF ALL, IS COPIED BELOW.  FN1  THERE ALSO IS
ONE OF THE NOTE-GUARANTY BONDS, TYPICAL OF ALL.  FN2  EACH DECLARATION
EXHIBITED A BOND, ALLEGED THAT THEREBY THE COMPANY BOUND ITSELF TO PAY
THE BANK A SPECIFIED SUM IN THE EVENT OF DEFAULT, WHICH HAD OCCURRED,
&C., THAT DAMAGES HAD BEEN SUSTAINED WHEREBY THE SURETY HAD BECOME
INDEBTED "IN THE PENAL SUM OF SAID BOND, WITH INTEREST." 

ANSWERING, THE COMPANY DENIED LIABILITY AND ALLEGED THAT, AS THE BANK
WELL KNEW, THE BOND WAS EXECUTED WITHOUT AUTHORITY, HAD BEEN
FRAUDULENTLY OBTAINED, WAS INVALID. 

BEFORE THE THREE LAW ACTIONS WERE FILED THE SURETY COMPANY INSTITUTED
FOUR SEPARATE EQUITABLE PROCEEDINGS IN THE SUPREME COURT, SUFFOLK
COUNTY, MASSACHUSETTS, AGAINST THE BANK AND MAKERS OF GUARANTEED
NOTES.  EACH COMPLAINT ALLEGED THAT THE BANK HAD FRAUDULENTLY OBTAINED
THE BOND AND ASKED THAT IT BE DECLARED NULL AND VOID.  LATER THE
RECEIVER BECAME PARTY IN THESE CAUSES AND ALL WERE REMOVED TO THE
FEDERAL COURT.  THERE, HE FILED SEPARATE ANSWERS, SUBSTANTIALLY ALIKE,
AVERRING THAT THE BOND HAD BEEN DULY EXECUTED, THAT DEFAULT HAD TAKEN
PLACE AND THAT DAMAGES AMOUNTING TO THE FULL AMOUNT OF THE SPECIFIED
PENALTY HAD BEEN SUSTAINED.  EACH ANSWER CONCLUDED - "WHEREFORE THESE
DEFENDANTS PRAY:  1.  THAT THE COURT DETERMINE THE AMOUNT DUE FROM THE
PLAINTIFF TO BOSTON-CONTINENTAL BANK AND JOHN B. CUNNINGHAM, ITS
RECEIVER, AND ORDER THE PLAINTIFF TO PAY THE SAME WITH INTEREST.  2. 
FOR SUCH FURTHER RELIEF AS THE COURT FINDS MEET AND JUST." 

COPIES OF ONE COMPLAINT  FN3  AND ANSWER  FN4  THERETO, TYPICAL OF
ALL, ARE IN THE MARGIN. 

A JURY WAS WAIVED IN THE LAW ACTIONS AND THE SEVEN CAUSES WENT TO AN
AUDITOR AND MASTER WITH INSTRUCTIONS TO REPORT FINDINGS OF FACT AND
CONCLUSIONS OF LAW, THE FORMER TO BE FINAL.  AFTER TAKING MUCH EVIDENCE
HE REPORTED WITH A FINDING OF FACTS SHOWING CLEARLY THAT THE BANK
OBTAINED THE BONDS THROUGH THE FRAUD OF ITS PRESIDENT, RAGAN, AND
CLIFF, GENERAL AGENT OF THE COMPANY.  AMONG OTHER THINGS HE SAID:  "I
RULE THAT THE BONDS AND 'ENDORSEMENTS' IN SUIT WERE NOT BINDING
OBLIGATIONS IN THE HANDS OF THE BANK AS A GOING CONCERN, FOR THE REASON
THAT RAGAN'S KNOWLEDGE OF THEIR INFIRMITIES IS IMPUTED TO THE BANK; AND
THAT THE BONDS AND 'ENDORSEMENTS' WOULD NOT BE BINDING OBLIGATIONS IN
THE HANDS OF THE RECEIVER, IF HIS RIGHTS WERE DERIVED SOLELY FROM THE
BANK AS DISTINGUISHED FROM ITS CREDITORS."  HE FURTHER RULED THAT AS
CLIFF, GENERAL AGENT OF THE SURETY COMPANY, KNEW THE BONDS WOULD BE
SHOWN TO THE BANK DIRECTORS AND TO ANY OTHERS ENTITLED TO INQUIRE
CONCERNING THE NOTES DESCRIBED THEREIN FOR THE PURPOSE OF DECEPTION,
THEREFORE "THE BONDS AND 'ENDORSEMENTS' IN SUIT ARE BINDING OBLIGATIONS
IN THE HANDS OF THE RECEIVER DUE TO THE FACT THAT HE REPRESENTS THE
BANK'S CREDITORS." 

THE DISTRICT COURT HEARD THE CAUSES ON REPORT AND EXCEPTIONS.  IT
HELD THE BONDS VOID AND FURTHER "ADJUDGED AND DECREED THAT THE
COUNTERCLAIM OF THE DEFENDANT RECEIVER, SET FORTH IN HIS ANSWER, BE AND
THE SAME IS HEREBY DISMISSED." 

BY STIPULATION THE CAUSES WERE JOINED FOR APPEAL UPON A SINGLE
RECORD.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE DISTRICT COURT AND
SAID:  "THE MASTER AND AUDITOR HELD THAT THE RECEIVER IN BRINGING THESE
ACTIONS DID NOT DERIVE HIS RIGHT OF RECOVERY THROUGH THE BANK, BUT
BECAUSE ONE OR MORE CREDITORS OF THE BANK WERE DECEIVED, AND AS HE
REPRESENTS CREDITORS HE DERIVED HIS RIGHT OF ACTION THROUGH THEM.  THE
RECEIVER, HOWEVER, MAKES NO SUCH ALLEGATIONS IN HIS DECLARATION."  "IT
IS CLEAR FROM THE PLEADINGS THAT THE RECEIVER SEEKS TO RECOVER ON THESE
BONDS AS ASSETS OF THE BANK.  IN SUCH AN ACTION HE STANDS NO BETTER
THAN THE BANK ITSELF.  ALL DEFENSES OPEN AGAINST THE BANK IN SUCH A
CASE ARE OPEN AGAINST THE RECEIVER, AND HE IS CHARGEABLE WITH KNOWLEDGE
OF ALL FACTS KNOWN TO THE BANK AFFECTING THE CHARACTER OF THE CLAIM." 
"IF THEREFORE, THE CONTRACT WITH THE SURETY COMPANY WAS ILLEGAL AS TO
THE BANK, BECAUSE, AS THE MASTER AND AUDITOR FOUND, THE BANK WAS
CHARGED WITH THE KNOWLEDGE OF ITS PRESIDENT, A RECOVERY BASED ON THE
CONTRACT OF SURETY CANNOT BE HAD BY THE RECEIVER, SINCE A RECOVERY MUST
BE BASED ON THE PLEADINGS, AND THE ALLEGATIONS OF LIABILITY IN THE
PLAINTIFF'S DECLARATIONS ARE BASED SOLELY ON THE CONTRACT OF SURETY." 
IN RESPECT OF THE RECEIVER'S COUNTERCLAIM SET UP IN THE EQUITY SUITS IT
SAID:  "THE PLAINTIFF'S COUNTERCLAIM DISTINCTLY RAISES THE QUESTION OF
THE VALIDITY OF THE BONDS.  THE ISSUE OF TRUST FOR THE BENEFIT OF
CREDITORS IS NOT RAISED OR SUGGESTED."  "THE OBLIGATIONS OF THE SURETY
COMPANY BASED ON THE DEPOSITORS OF THE BANK BEING INJURED BY THE GIVING
OF THE BONDS, AND THE RECEIVER'S CLAIM AGAINST THE SURETY COMPANY BASED
ON A TRUST RELATIONSHIP ARE NOT MENTIONED, AND, WE THINK, ARE NOT
RAISED BY THE PLAINTIFF'S COUNTERCLAIM IN THE EQUITY SUITS." 

WE AGREE WITH THE CONCLUSION REACHED BY THE CIRCUIT COURT OF
APPEALS.  ITS JUDGMENT MUST BE AFFIRMED. 

COUNSEL FOR THE PETITIONER HERE SUBMIT - "THE RECEIVER'S POSITION
RESTS PRIMARILY UPON THE PROPOSITION THAT THE CIRCUMSTANCES SURROUNDING
THE GIVING OF THE NOTE-GUARANTY BONDS BY CLIFF TO THE BANK ACCOMPANIED
BY THE SUPPORTING POWERS OF ATTORNEY,  ...  AND THE CONSEQUENCES WHICH
FOLLOWED THE CREDENCE GIVEN TO SAID BONDS AND POWERS OF ATTORNEY BY THE
NATIONAL BANK EXAMINERS AND THE COMPTROLLER, ACTING AS THE
REPRESENTATIVES OF THE DEPOSITORS AND OTHER CREDITORS, GIVE RISE, IN A
SUIT BY THE RECEIVER TO ENFORCE THE BONDS, TO AN ESTOPPEL WHICH
PRECLUDES THE SURETY COMPANY FROM DENYING THE VALIDITY OF THE BONDS AND
FROM ASSERTING AS A DEFENSE THAT ITS AGENT ACTED FRAUDULENTLY AND
WITHOUT AUTHORITY IN EXECUTING THE BONDS AND THAT A FRAUDULENT OFFICIAL
OF THE BANK KNEW OF THE AGENT'S MISCONDUCT." 

AN EXAMINATION OF THE PLEADINGS MAKES IT QUITE CLEAR THAT THE
RECEIVER UNDERTOOK TO SET UP RIGHTS ACQUIRED BY THE INSOLVENT BANK
THROUGH DULY EXECUTED CONTRACTS BETWEEN IT AND THE SURETY COMPANY.  HE
MAKES NO SUGGESTION OF A PURPOSE ATTRIBUTABLE TO THE COMPANY TO MISLEAD
CREDITORS OR OTHERS; MAKES NO ALLEGATIONS OF DAMAGE EXCEPT THAT
SUSTAINED BY THE BANK.  HE SETS UP NO FACTS WHICH WOULD RENDER
UNCONSCIONABLE A DENIAL OF LIABILITY UPON THE BOND BECAUSE OF THE
AGENT'S FRAUD OBVIOUSLY INDUCED BY THE PRESIDENT OF THE BANK.  IN THIS
STATE OF THE PLEADINGS THE RECEIVER MAY NOT HAVE JUDGMENT; HE CANNOT
RELY ON SOMETHING NOT COMPLAINED OF, NOR CAN HE HAVE DAMAGES BECAUSE OF
SUPPOSED DECEPTIONS WHICH THE PLEADINGS FAIL TO SUGGEST. 

IN RANKIN V. CITY NATIONAL BANK, 208 U.S. 541, 545, 546, A SUIT BY
THE RECEIVER OF THE CAPITOL NATIONAL BANK OF GUTHRIE TO RECOVER THE
AMOUNT OF AN ALLEGED DEPOSIT WHERE IT APPEARED "THAT THE WHOLE
BUSINESS, FROM BEGINNING TO END, WAS AND WAS INTENDED TO BE A MERE
JUGGLE WITH BOOKS AND PAPERS TO DECEIVE THE BANK EXAMINER," THIS COURT
DENIED THE RECEIVER'S CLAIM AND SAID:  "IF THE GUTHRIE BANK HAD SUED
WHILE IT WAS A GOING CONCERN IT COULD NOT HAVE RECOVERED, AND THE
RECEIVER STANDS NO BETTER THAN THE BANK."  WE ADHERE TO THE DOCTRINE
THERE APPROVED AND REGARD IT AS DECISIVE OF THE PRESENT CAUSE. 
AFFIRMED. 

FN1  DECLARATION - 

NOW COMES THE PLAINTIFF IN THE ABOVE-ENTITLED ACTION AND SAYS THAT ON
DECEMBER 22, 1931, HE WAS APPOINTED RECEIVER OF BOSTON-CONTINENTAL
NATIONAL BANK BY THE COMPTROLLER OF THE CURRENCY OF THE UNITED STATES,
THAT HE DULY QUALIFIED AND IS NOW ACTING AS SUCH RECEIVER. 

AND THE PLAINTIFF SAYS THAT THE DEFENDANT DULY ENTERED INTO, EXECUTED
UNDER SEAL AND DELIVERED TO THE CONTINENTAL NATIONAL BANK OF BOSTON,
NOW KNOWN AS BOSTON-CONTINENTAL NATIONAL BANK, A WRITTEN INSTRUMENT OR
BOND, COPY WHEREOF IS HERETO ANNEXED MARKED "A" AND HEREBY MADE A PART
HEREOF; THAT BY THE TERMS OF SAID BOND THE DEFENDANT BOUND ITSELF TO
PAY SAID CONTINENTAL NATIONAL BANK OF BOSTON THE SUM OF FORTY THOUSAND
DOLLARS ($40,000) IN THE EVENT THAT FOUR NOTES OF TEN THOUSAND DOLLARS
($10,000) EACH SIGNED BY WESTCHESTER DISCOUNT CORPORATION WERE NOT PAID
UPON THE DUE DATES AS SET FORTH IN SAID BOND, THE LAST DUE DATE BEING
APRIL 20, 1931; THAT SOME TIME PRIOR TO APRIL 20, 1931, SAID BOND WAS
EXTENDED TO JUNE 20, 1931, BY A WRITTEN INSTRUMENT CALLED ENDORSEMENT,
COPY WHEREOF IS HERETO ANNEXED MARKED "B"; THAT SOME TIME PRIOR TO JUNE
20, 1931 SAID BOND WAS EXTENDED TO DECEMBER 20, 1931 BY A WRITTEN
INSTRUMENT CALLED ENDORSEMENT, COPY WHEREOF IS HERETO ANNEXED MARKED
"C"; THAT THE CONDITION OF SAID BOND AS EXTENDED AS AFORESAID HAS BEEN
BROKEN IN THAT WESTCHESTER DISCOUNT CORPORATION, THE PRINCIPAL NAMED
THEREIN, HAS NOT PAID THE NOTES DESCRIBED IN SAID BOND ACCORDING TO
THEIR TERMS, BUT ON THE CONTRARY HAS FAILED, REFUSED AND DECLINED TO
PAY SAID NOTES AND STILL CONTINUES SO TO REFUSE, NOTWITHSTANDING THE
FACT THAT ALL TIMES HAVE ELAPSED AND ALL CONDITIONS HAVE BEEN FULFILLED
NECESSARY TO ENTITLE THE PLAINTIFF TO PAYMENT IN FULL OF SAID NOTES;
THAT THE DEFENDANT WAS DULY NOTIFIED OF THE DEFAULT IN ACCORDANCE WITH
THE PROVISIONS OF THE BOND; THAT THE DAMAGES SUSTAINED BY THE PLAINTIFF
ON ACCOUNT OF THE DEFAULT OF SAID WESTCHESTER DISCOUNT CORPORATION ARE
IN EXCESS OF FORTY THOUSAND DOLLARS ($40,000). 

WHEREFORE, THE DEFENDANT IS INDEBTED TO THE PLAINTIFF IN THE PENAL
SUM OF SAID BOND WITH INTEREST FROM DECEMBER 20, 1931. 

AND THE PLAINTIFF SAYS THAT THIS IS AN ACTION AT LAW ARISING UNDER
THE CONSTITUTION AND LAWS OF THE UNITED STATES AND IS A CASE FOR
WINDING UP THE AFFAIRS OF SAID BOSTON-CONTINENTAL NATIONAL BANK; AND
THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF
MASSACHUSETTS HAS ORIGINAL JURISDICTION UNDER SECTION 24 OF THE
JUDICIAL CODE OF THE UNITED STATES. 

         (SIGNED)  BY HIS ATTORNEYS, ------ ------,

                                        ------ ------. 

FN2  COPY OF BOND - 

NO.                $40,000.00 

KNOW ALL MEN BY THESE PRESENTS, THAT WE, WESTCHESTER DISCOUNT
CORPORATION OF MOUNT VERNON, NEW YORK, AS PRINCIPAL, AND THE STANDARD
SURETY & CASUALTY COMPANY OF NEW YORK, A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF NEW YORK AND HAVING AN USUAL
PLACE OF BUSINESS IN BOSTON, AS SURETY, ARE HELD AND FIRMLY BOUND AND
OBLIGED UNTO THE CONTINENTAL NATIONAL BANK OF BOSTON, A BANKING
CORPORATION DULY ORGANIZED UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS AND HAVING AN USUAL PLACE OF BUSINESS IN BOSTON IN THE
COUNTY OF SUFFOLK, IN THE FULL AND JUST SUM OF FORTY THOUSAND DOLLARS
($40,000.), TO BE PAID TO SAID CONTINENTAL NATIONAL BANK OF BOSTON AS
HEREINAFTER PROVIDED TO WHICH PAYMENT WE BIND OURSELVES, OUR HEIRS,
EXECUTORS, ADMINISTRATORS FIRMLY BY THESE PRESENTS. 

THE CONDITION OF THIS OBLIGATION IS SUCH THAT IF THE SAID WESTCHESTER
DISCOUNT CORPORATION SHALL UPON THE DUE DATES AS HEREINAFTER INDICATED
MAKE TO THE CONTINENTAL NATIONAL BANK OF BOSTON FULL AND TRUE PAYMENT
OF A SCHEDULE OF FOUR NOTES AS LISTED BELOW THEN THIS OBLIGATION SHALL
BE VOID, OTHERWISE SHALL REMAIN IN FULL FORCE AND EFFECT. 

                   SCHEDULE OF NOTES. 

           DATE                  AMOUNT        MATURITY 

DEC. 20, 1930.................. $10,000.00     JANUARY 20, 1931 

DEC. 20, 1930..................  10,000.00     FEBRUARY 20, 1931 
DEC. 20, 1930..................  10,000.00     MARCH 20, 1931 

DEC. 20, 1930..................  10,000.00     APRIL 20, 1931 

IN THE EVENT OF DEFAULT ON THE PART OF THE PRINCIPAL ON ANY NOTE, THE
OBLIGEE SHALL NOTIFY THE HOME OFFICE OF THE SURETY COMPANY AT 80 JOHN
STREET, NEW YORK CITY, NEW YORK, WITHIN TEN (10) DAYS BY REGISTERED
MAIL, OF SUCH DEFAULT, AND THE SURETY COMPANY SHALL PAY ANY LIABILITY
HEREUNDER, NOT EXCEEDING THE AMOUNT STILL UNPAID ON ANY OR ALL OF THE
AFORESAID NOTES AND IN NO EVENT EXCEEDING FORTY THOUSAND DOLLARS
($40,000.), SAID PAYMENT TO BE MADE BY THE SURETY WITHIN THIRTY DAYS
AFTER MATURITY OF THE FINAL NOTE.    WITNESS OUR HANDS AND SEALS, AND
DATED THIS 20TH DAY OF DECEMBER, A.D. 1930. 

WESTCHESTER DISCOUNT CORPORATION (SEAL), 

BY JOSEPH STONE, TREAS. 

STANDARD SURETY & CASUALTY COMPANY OF NEW YORK, 

BY PERCY G. CLIFF, ATTORNEY-IN-FACT. 

FN3  BILL OF COMPLAINT - 

1.  THE PLAINTIFF IS A CORPORATION LEGALLY ESTABLISHED AND EXISTING
UNDER THE LAWS OF THE STATE OF NEW YORK, HAVING A USUAL PLACE OF
BUSINESS IN BOSTON IN THE COUNTY OF SUFFOLK IN THIS COMMONWEALTH. 

2.  THE DEFENDANT BOSTON-CONTINENTAL NATIONAL BANK FORMERLY CALLED
CONTINENTAL NATIONAL BANK OF BOSTON, IS A NATIONAL BANKING ASSOCIATION,
LEGALLY ESTABLISHED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, HAVING ITS USUAL PLACE OF BUSINESS IN SAID BOSTON.  THE
DEFENDANT WESTCHESTER DISCOUNT CORPORATION IS A CORPORATION ESTABLISHED
AND EXISTING UNDER THE LAWS OF THE STATE OF NEW YORK HAVING ITS USUAL
PLACE OF BUSINESS IN MOUNT VERNON IN THE COUNTY OF WESTCHESTER AND
STATE OF NEW YORK. 

3.  THE PLAINTIFF IS INFORMED AND BELIEVES AND THEREFORE AVERS THAT
ON OR ABOUT DECEMBER 20TH, A.D. 1930 THE DEFENDANT WESTCHESTER DISCOUNT
CORPORATION AND ONE PERCY G. CLIFF EXECUTED AN INSTRUMENT A COPY OF
WHICH IS HERETO ANNEXED MARKED A AND MADE A PART HEREOF, AND AT THE
SAME TIME THE DEFENDANT BANK EXECUTED AND DELIVERED TO SAID CLIFF AN
INSTRUMENT ENTITLED "RELEASE" A COPY OF WHICH IS HERETO ANNEXED MARKED
B AND MADE A PART HEREOF. 

THEREAFTER, SO THE PLAINTIFF IS INFORMED AND BELIEVES AND THEREFORE
AVERS, THE SAID CLIFF EXECUTED THE INSTRUMENTS ENTITLED "ENDORSEMENTS"
COPIES OF WHICH MARKED RESPECTIVELY C. AND D. ARE HERETO ANNEXED AND
MADE PARTS HEREOF. 

4.  THE PLAINTIFF IS INFORMED AND BELIEVES AND THEREFORE AVERS THAT
ALL OF THE INSTRUMENTS AFORESAID MARKED A.C. AND D. WERE EXECUTED BY
SAID CLIFF AT THE REQUEST AND SOLICITATION OF THE DEFENDANTS WITHOUT
ANY CONSIDERATION OR SECURITY, WITHOUT PREMIUM CHARGED OR PAID OR
INTENDED TO BE CHARGED OR PAID THEREFOR, UPON THE UNDERSTANDING BETWEEN
THE DEFENDANTS AND SAID CLIFF THAT SAID INSTRUMENTS WERE NOT BINDING
OBLIGATIONS OF THE PLAINTIFF, AND UPON THE ASSURANCE AND PROMISE GIVEN
BY THE DEFENDANTS TO SAID CLIFF AND UPON THE UNDERSTANDING THAT SAID
INSTRUMENTS WOULD NOT BE USED OR ENFORCED BY SAID BANK AGAINST THE
PLAINTIFF, THAT THE PLAINTIFF SHOULD NEVER BE INFORMED OF THE EXISTENCE
THEREOF, AND THAT AFTER REMAINING IN THE CUSTODY OF THE DEFENDANT BANK
FOR A SHORT TIME THEY SHOULD BE RETURNED TO SAID CLIFF. 

5.  ALL OF THE INSTRUMENTS ABOVE DESCRIBED COPIES OF WHICH ARE HERETO
ANNEXED MARKED A.C. AND D. WERE EXECUTED BY THE SAID CLIFF WITHOUT
AUTHORITY FROM THE PLAINTIFF AND WITHOUT ITS KNOWLEDGE OR CONSENT, AS
BOTH DEFENDANTS WELL KNEW.  THE PLAINTIFF HAS ONLY RECENTLY LEARNED OF
THE EXISTENCE OF SAID INSTRUMENTS WHICH ARE NOW IN THE POSSESSION OF
THE DEFENDANT BANK. 

WHEREFORE THE PLAINTIFF PRAYS: 

1.  THAT THE DEFENDANTS BE ENJOINED FROM ENFORCING OR ATTEMPTING TO
ENFORCE THE SAID INSTRUMENTS MARKED A.C. AND D. OR ANY OF THEM BY SUIT
OR OTHERWISE. 

2.  THAT THE SAID INSTRUMENTS MARKED A.C. AND D. BE DECLARED NULL AND
VOID AND THAT THE DEFENDANT BANK BE ORDERED TO DELIVER THEM UP TO BE
CANCELLED. 

3.  FOR SUCH OTHER AND FURTHER RELIEF AS MAY BE NECESSARY AND
PROPER. 

                  (SIGNED)  BY ITS ATTORNEYS, ------ ------,

          ------ ------. 

FN4  ANSWER OF BOSTON-CONTINENTAL NATIONAL BANK AND JOHN B.
CUNNINGHAM, RECEIVER OF BOSTON-CONTINENTAL NATIONAL BANK. 

NOW COME BOSTON CONTINENTAL NATIONAL BANK AND JOHN B. CUNNINGHAM,
RECEIVER OF BOSTON-CONTINENTAL NATIONAL BANK, AND FOR ANSWER TO THE
PLAINTIFF'S BILL OF COMPLAINT SAY AS FOLLOWS: 

1.  THEY ADMIT THE ALLEGATIONS CONTAINED IN THE FIRST PARAGRAPH OF
THE BILL OF COMPLAINT. 

2.  THEY ADMIT THE ALLEGATIONS CONTAINED IN THE SECOND PARAGRAPH OF
THE BILL OF COMPLAINT. 

3.  AS TO THE ALLEGATIONS CONTAINED IN THE THIRD PARAGRAPH OF THE
BILL OF COMPLAINT, THEY SAY THAT THE INSTRUMENT, A COPY WHEREOF IS
ATTACHED TO THE BILL OF COMPLAINT MARKED "A", WAS DULY EXECUTED BY
WESTCHESTER DISCOUNT CORPORATION BY JOSEPH STONE, ITS TREASURER, AND
WAS DULY EXECUTED BY THE PLAINTIFF, BY PERCY G. CLIFF, ITS ATTORNEY-IN
FACT, AND THAT AN ATTESTED COPY OF SAID CLIFF'S GENERAL POWER OF
ATTORNEY WAS ATTACHED TO THE ORIGINAL INSTRUMENT; THAT THEREAFTER THE
PLAINTIFF DULY EXECUTED THE INSTRUMENTS ENTITLED "ENDORSEMENTS" BY SAID
CLIFF, ITS ATTORNEY-IN-FACT, COPIES OF WHICH ENDORSEMENTS ARE ATTACHED
TO THE BILL OF COMPLAINT MARKED "C" AND "D"; THAT IF A PURPORTED
RELEASE WAS DELIVERED TO SAID CLIFF BY CONTINENTAL NATIONAL BANK BY
TERRELL M. RAGAN IN THE FORM ATTACHED TO THE BILL OF COMPLAINT MARKED
"B", SUCH PURPORTED RELEASE WAS DELIVERED WITHOUT AUTHORITY OF THE
BOARD OF DIRECTORS OF SAID CONTINENTAL NATIONAL BANK, WAS EXECUTED
WITHOUT CONSIDERATION AND IS VOIDABLE AND VOID.  EXCEPT AS AFORESAID,
THEY DENY THE ALLEGATIONS CONTAINED IN SAID PARAGRAPH 3 OF THE BILL OF
COMPLAINT. 

4.  THEY DENY THE ALLEGATIONS CONTAINED IN THE FOURTH PARAGRAPH OF THE
BILL OF COMPLAINT. 

5.  THEY DENY THE ALLEGATIONS CONTAINED IN THE FIFTH PARAGRAPH OF THE
BILL OF COMPLAINT. 

6.  FURTHER ANSWERING THEY SAY THAT THE CONDITION OF SAID INSTRUMENT,
COPY OF WHICH IS ATTACHED TO THE BILL OF COMPLAINT MARKED "A" AS
EXTENDED BY INSTRUMENTS, COPIES OF WHICH ARE ATTACHED TO THE BILL OF
COMPLAINT MARKED "C" AND "D", HAS BEEN BROKEN IN THAT WESTCHESTER
DISCOUNT CORPORATION, THE PRINCIPAL NAMED IN SAID INSTRUMENT, HAS NOT
PAID THE NOTES DESCRIBED THEREIN ACCORDING TO THEIR TERMS, BUT ON THE
CONTRARY HAS FAILED, REFUSED AND DECLINED TO PAY SAID NOTES AND STILL
CONTINUES SO TO REFUSE, NOTWITHSTANDING THE FACT THAT ALL TIMES HAVE
ELAPSED AND ALL CONDITIONS HAVE BEEN FULFILLED NECESSARY TO ENTITLE
BOSTON-CONTINENTAL NATIONAL BANK AND JOHN B. CUNNINGHAM, RECEIVER OF
SAID BANK, THE SUCCESSORS TO THE OBLIGEE DESCRIBED THEREIN, TO PAYMENT
IN FULL OF SAID NOTES; THAT THE PLAINTIFF WAS DULY NOTIFIED OF THE
DEFAULT IN ACCORDANCE WITH THE PROVISIONS OF THE SAID INSTRUMENT; THAT
THE DAMAGES SUSTAINED BY THESE DEFENDANTS ON ACCOUNT OF THE DEFAULT OF
SAID WESTCHESTER DISCOUNT CORPORATION ARE IN EXCESS OF $40,000. 

WHEREFORE THESE DEFENDANTS PRAY: 

1.  THAT THE COURT DETERMINE THE AMOUNT DUE FROM THE PLAINTIFF TO
BOSTON-CONTINENTAL NATIONAL BANK AND JOHN B. CUNNINGHAM, ITS RECEIVER,
AND ORDER THE PLAINTIFF TO PAY THE SAME WITH INTEREST. 

2.  FOR SUCH FURTHER RELIEF AS THE COURT FINDS MEET AND JUST. 

                  (SIGNED)  BY THEIR ATTORNEYS, ------ ------,

                                              ------ ------. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

WHEN TWO OR MORE PERSONS HAVE JOINTLY PERPETRATED A FRAUD WITH INTENT
TO INJURE OTHERS, JUSTICE AND LAW COMBINE TO ENTITLE INJURED PARTIES TO
RECOVER FROM ANY OR ALL OF THE CONSPIRATORS.  CORPORATIONS CAN ACT ONLY
THROUGH AGENTS.  WHEN, AS HERE, TWO CORPORATIONS, ACTING THROUGH
AUTHORIZED AGENTS, HAVE JOINTLY PERPETRATED A FRAUD WHICH WAS INTENDED
TO - AND DID - INJURE OTHERS, A JUST RULE OF LAW SHOULD LIKEWISE HOLD
BOTH CORPORATIONS JOINTLY AND SEVERALLY RESPONSIBLE FOR THE DAMAGES
INFLICTED BY THEM UPON INNOCENT PARTIES. 

IN THIS CASE INNOCENT DEPOSITORS AND OTHER CREDITORS OF A NOW
INSOLVENT NATIONAL BANK SUFFERED DAMAGES AS A DIRECT RESULT OF FRAUD
WILFULLY PERPETRATED ON THEM BY JOINT ACTION OF THE BANK AND THE
RESPONDENT SURETY CORPORATION, ACTING THROUGH THEIR AGENTS.  BECAUSE OF
THE GUILTY PARTICIPATION OF THE BANK PRESIDENT IN THIS FRAUD, THE
OPINION JUST READ DENIES THE RECEIVER OF THE INSOLVENT BANK A RECOVERY
WHICH WOULD INURE TO THE BENEFIT OF THE INNOCENT DEPOSITORS.  AT THE
SAME TIME, HOWEVER, THE RESPONDENT SURETY CORPORATION IS FREED FROM ANY
RESPONSIBILITY TO THESE INNOCENT PARTIES, IN SPITE OF THE ADMITTED
GUILTY PARTICIPATION OF ITS AGENT.  THAT THE AGENT OF THE RESPONDENT
SURETY CORPORATION WAS AUTHORIZED TO WRITE THE INDEMNITY BONDS USED IN
THE FRAUD IS DISCLOSED BY THE FINDINGS OF THE MASTER AND AUDITOR -
ACTING "UNDER A STIPULATION THAT FINDINGS OF FACT SHALL BE FINAL." 
THESE FINDINGS SHOW THAT: 

THE DULY LICENSED AGENT OF THE SURETY COMPANY (RESPONDENT) CONSPIRED
WITH THE PRESIDENT OF THE BANK TO SUPPLY INDEMNITY BONDS GUARANTEEING
THE PAYMENT OF CERTAIN NOTES HELD BY THE BANK, WHICH BONDS WERE TO BE
PLACED AMONG THE ASSETS OF THE BANK FOR THE PURPOSE OF DECEIVING
FEDERAL BANK EXAMINERS, THE BANK'S DIRECTORS AND ALL OTHERS ENTITLED TO
INQUIRE AS TO THE SOUNDNESS OF THE NOTES; THE SURETY COMPANY'S AGENT
ALSO PERSONALLY ASSURED THE EXAMINERS THAT THE BONDS WERE ALL RIGHT; NO
PREMIUM WAS PAID THE SURETY COMPANY AND THE BONDS WERE INTENDED BY THE
RESPONDENT'S DULY AUTHORIZED AGENT AND THE PRESIDENT OF THE BANK TO BE
VALUELESS AND USED AS "WINDOW DRESSINGS" TO ACCOMPLISH DECEPTIONS;
RESPONDENT'S DULY LICENSED AGENT HAD A POWER OF ATTORNEY "TO MAKE,
EXECUTE AND DELIVER  ...  FOR AND ON ITS BEHALF AS SURETY, ANY AND ALL
BONDS  ...  UNDERTAKINGS, OR ANYTHING IN THE NATURE OF ANY OF THEM,
...  TO ALL INTENTS AND PURPOSES AS IF SAME HAD BEEN DULY EXECUTED AND
ACKNOWLEDGED BY THE REGULARLY ELECTED OFFICERS OF THE COMPANY  ..."; A
COPY OF THE POWER OF ATTORNEY WAS ATTACHED TO THE BONDS AND THE
EXAMINERS INSPECTED PUBLIC RECORDS AND VERIFIED THE AUTHENTICITY OF
THIS POWER OF ATTORNEY; THESE BONDS WERE EXECUTED AFTER THE EXAMINERS
HAD NOTIFIED THE BANK TO MAKE GOOD AN IMPAIRMENT OF CAPITAL AND THE
EXECUTION OF THESE BONDS CAUSED THE COMPTROLLER TO WITHDRAW HIS ORDER
TO MAKE GOOD THE IMPAIRMENT AND AS A RESULT THE BANK CONTINUED TO
REMAIN OPEN, ASSUMED ADDITIONAL OBLIGATIONS, AND ACCEPTED FURTHER
DEPOSITS IN LARGE AMOUNTS. 

SINCE THE RECEIVER REPRESENTS THE CREDITORS AS WELL AS THE BANK  FN1
HE CAN SUE IN HIS OWN NAME TO RECOVER ASSETS ON BEHALF OF THE BANK OR
ITS CREDITORS.  FN2  "IT IS THE DUTY OF THE RECEIVER OF AN INSOLVENT
CORPORATION TO TAKE STEPS TO SET ASIDE TRANSACTIONS WHICH FRAUDULENTLY
OR ILLEGALLY REDUCE THE ASSETS AVAILABLE FOR THE GENERAL CREDITORS,
EVEN THOUGH THE CORPORATION ITSELF WAS NOT IN A POSITION TO DO SO." 
TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245, 261.  THERE IS NO
OCCASION TO CONSIDER WHETHER THE BANK COULD RECOVER AGAINST THE
INSURANCE COMPANY ON THE INDEMNITY BONDS.  "ENOUGH THAT THE RECEIVER
HAS THE REQUISITE CAPACITY."  MCCANDLESS V. FURLAUD, 296 U.S. 140,
160.  IN THE MCCANDLESS CASE (PAGE 171), THE MINORITY VIEW WAS THAT
"THE RECEIVER'S RIGHTS COULD RISE NO HIGHER" THAN THE CORPORATION'S
RIGHTS.  THE MAJORITY REJECTED THIS VIEWPOINT (PAGE 159), HOLDING THAT
WHERE CORPORATE OFFICERS AND SHAREHOLDERS COMBINED WITH OTHERS TO
DESPOIL A CORPORATION, RECOVERY COULD BE HAD "EITHER BY THE CREDITORS
DIRECTLY OR IN THEIR BEHALF BY A RECEIVER." 

THE RECEIVER DOES NOT MERELY REPRESENT THE CORPORATION - THE BANK. 
THE OBJECT OF THE APPOINTMENT OF A RECEIVER IS TO COLLECT AND PROTECT
ALL OF THE INSOLVENT'S ASSETS IN THE INTEREST OF THE CREDITORS FIRST,
THEN FOR THE BENEFIT OF THE STOCKHOLDERS.  IT HAS LONG BEEN RECOGNIZED
THAT EVEN IN THE CASE OF A GOING BANK THE RIGHTS OF DEPOSITORS AND THE
PUBLIC WOULD BE JEOPARDIZED UNLESS GIVEN PROTECTION IN ADDITION TO THAT
AFFORDED BY THE BANK'S OFFICERS ELECTED BY THE STOCKHOLDERS.  FOR THAT
REASON, AMONG OTHERS, THE GOVERNMENT HAS PROVIDED A SYSTEM OF
EXAMINATION FOR ALL NATIONAL BANKS.  FN3  STATUTES REQUIRE BANKS TO
MAKE REPORTS TO THE COMPTROLLER OF THE CURRENCY AND TO PERMIT
EXAMINATIONS BY FEDERAL BANK EXAMINERS.  THESE EXAMINATIONS ARE
DESIGNED TO PREVENT SUCH FRAUDS AS WERE PERPETRATED IN THIS CASE.  THIS
OBJECTIVE WILL BE FRUSTRATED IF SURETY COMPANIES - WITH COMPLETE
IMMUNITY - CAN, THROUGH THEIR AUTHORIZED AGENTS, CONSPIRE WITH BANK
OFFICIALS TO DECEIVE AND TRICK BANK EXAMINERS.  THE CONVENIENT FICTION
THAT KNOWLEDGE OF AN OFFICER OF THE BANK IS IMPUTED TO THE BANK ITSELF
IS NOT SUFFICIENT TO RELIEVE RESPONDENT SURETY COMPANY FROM THE
CONSEQUENCES OF THE WRONG COMMITTED BY ITS AUTHORIZED AGENT.  THERE IS
NOT EVEN A FICTION UNDER WHICH KNOWLEDGE CAN BE IMPUTED TO INNOCENT
DEPOSITORS.  STRANGE, INDEED, IT IS IF THE ELABORATE SYSTEM OF
PRECAUTIONS PROVIDED BY THE GOVERNMENT TO PROTECT THE INTERESTS OF
CREDITORS OF NATIONAL BANKS BY EXAMINATION AND VISITATION OF FEDERAL
OFFICIALS MUST BE HELD FOR NAUGHT BY APPLICATION OF THE FICTION THAT
THE BANK - NOT THE INJURED DEPOSITORS - KNEW EVERYTHING ITS PRESIDENT
KNEW.  THE INTERESTS OF THE BANK AND THE INTERESTS OF THE DEPOSITORS
AND CREDITORS ARE NOT ALWAYS IDENTICAL.  THAT THEIR INTERESTS ARE
RECOGNIZED AS SEPARATE AND DISTINGUISHABLE IS AMPLY SHOWN BY LAWS
PASSED TO PROTECT DEPOSITORS AND CREDITORS OF NATIONAL BANKS.  PUBLIC
SOLICITUDE FOR PROTECTION OF DEPOSITORS IS EXEMPLIFIED BY THE RECENT
PASSAGE OF THE LAW INSURING PUBLIC DEPOSITS.  FN4 

THE RECEIVER FILED SUITS AT LAW SIDE TO RECOVER ON THE SEVERAL
INDEMNITY BONDS.  THE SURETY COMPANY PROCEEDED IN EQUITY PRAYING
CANCELLATION OF THE BONDS.  ALL ACTIONS WERE TRIED ON EVIDENCE BEFORE A
MASTER AND AUDITOR "UNDER A STIPULATION THAT FINDINGS OF FACT SHALL BE
FINAL."  THESE FINDINGS SET FORTH ALL OF THE RIGHTS OF THE RECEIVER AS
THE REPRESENTATIVE OF THE CREDITORS, THE STOCKHOLDERS AND THE BANK. 
IN THIS CASE, THE PRINCIPLES INVOLVED ARE OF GREAT IMPORTANCE.  THE
DECREE BELOW ADJUDGED THE INDEMNITY BONDS TO BE VOID AND
UNENFORCEABLE.  SINCE I BELIEVE THE RECEIVER WAS ENTITLED UNDER THESE
ACTIONS TO ENFORCE THE BONDS AND TO PROTECT THE INNOCENT VICTIMS OF
FRAUD, I WOULD REVERSE THE DECREE BELOW. 

MR. JUSTICE REED CONCURS IN THIS OPINION. 

FN1  CASE V. TERRELL, 11 WALL.  199, 202; HIGH, "ON RECEIVERS," 4TH
ED., SECS. 314, 320; IN RE PLEASANT HILL LUMBER CO., 126 LA. 743, 757;
52 SO. 1010; DUKE V. STAYTON CO., 132 WASH. 69, 77; 231 PAC. 171;
ATLANTIC TRUST CO. V. DANA, 128 FED. 209, 221; DE STAFANO V. ALMOND
CO., 107 N.J. EQ. 156, 159; 152 ATL. 2; INDUSTRIAL MUT. DEP. CO.'S
RECEIVER V. TAYLOR, 118 KY. 851, 854; 82 S.W. 574; IGLEHART V. TODD,
203 IND. 427, 440; 178 N.E. 685. 

FN2  SEE, KENNEDY V. GIBSON, 8 WALL.  498, 506. 

FN3  SEE, EASTON V. IOWA, 188 U.S. 220, 238. 

FN4  12 U.S.C. SEC. 264 ET SEQ.
..END :
























STATE FARM INS. CO. V. COUGHRAN, 303 U.S. 485 


NO. 519.  ARGUED MARCH 4, 1938.  - DECIDED MARCH 28, 1938.  - 92 F.2D
239, REVERSED. 


1.  UPON APPEAL IN A LAW CASE TRIED WITHOUT A JURY, THE CIRCUIT COURT
OF APPEALS DETERMINES WHETHER THE FINDINGS SUPPORT THE JUDGMENT, BUT
CAN NOT REVIEW THE EVIDENCE.  P. 487. 

2.  AN AUTOMOBILE INSURANCE POLICY PROVIDED THAT THE INSURANCE
COMPANY SHOULD NOT BE LIABLE UNLESS THE CAR AT THE TIME OF ACCIDENT WAS
BEING "OPERATED" BY THE INSURED, HIS PAID DRIVER, MEMBERS OF HIS
IMMEDIATE FAMILY, OR PERSONS ACTING UNDER HIS DIRECTION, NOR IF IT WAS
BEING "DRIVEN OR OPERATED" BY ANY PERSON VIOLATING ANY LAW AS TO AGE OR
DRIVING LICENSE.  THERE WAS A FINDING THAT THE ACCIDENT IN QUESTION
OCCURRED WHILE THE CAR WAS BEING OPERATED, WITH THE PERMISSION OF
ASSURED, BY HIS WIFE, AND WAS CAUSED BY HER NEGLIGENCE.  THERE WAS
ANOTHER FINDING THAT IT OCCURRED WHILE IT WAS BEING JOINTLY OPERATED BY
THE WIFE AND, WITH HER PERMISSION BUT CONTRARY TO THE ORDERS OF THE
HUSBAND, BY A 13 YEAR OLD GIRL, UNLICENSED AND UNLICENSABLE UNDER THE
LAW OF CALIFORNIA, WHO AT THE TIME OF THE ACCIDENT WAS PHYSICALLY
ACTUATING INSTRUMENTALITIES OF THE AUTOMOBILE OTHER THAN THE MEANS OF
DIRECTION; AND THAT THE PROXIMATE CAUSE OF THE COLLISION WAS THE ACT OF
THE WIFE IN SEIZING THE STEERING WHEEL AT AND IMMEDIATELY PRECEDING THE
MOMENT OF IMPACT.  HELD: 

(1)  THAT THE FINDINGS ARE NOT IN CONFLICT; THE FIRST REFERS TO THE
CONDUCT OF THE WIFE AS THE ONE IN AUTHORITY; THE SECOND DETAILS WHAT
REALLY TOOK PLACE AT MOMENT OF COLLISION.  P. 491. 

ONE MAY "OPERATE" AN AUTOMOBILE SINGLY OR JOINTLY WITH ANOTHER. 

(2)  THE RISK WAS NOT WITHIN THE POLICY.  P. 487. 

3.  A PERSON INJURED BY AN AUTOMOBILE IN CHARGE OF THE ASSURED'S
WIFE, RECOVERED JUDGMENT AGAINST BOTH OF THEM IN AN ACTION DEFENDED BY
THE HUSBAND'S INSURER UNDER A NON-WAIVER AGREEMENT; AND, FAILING TO
COLLECT IT, SUED THE INSURER.  HELD THAT PROOF THAT THE MACHINE, AT THE
TIME OF THE ACCIDENT, WAS BEING OPERATED BY THE WIFE AND A CHILD,
JOINTLY, CONTRARY TO THE HUSBAND'S ORDERS AND CONTRARY TO LAW, WAS
AVAILABLE AS A DEFENSE UNDER THE POLICY, NOTWITHSTANDING THE INSURER'S
FAILURE TO DISCLOSE IT AT THE OTHER TRIAL.  P. 492. 

STATE FARM MUTUAL AUTOMOBILE INS. CO. V. COUGHRAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 679, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED IN AN ACTION ON A POLICY OF INSURANCE. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

PETITIONER'S POLICY INSURED ONE R. O. ANTHONY, THE OWNER, AGAINST
LIABILITY FOR INJURIES CAUSED BY A DESIGNATED AUTOMOBILE.  AS THE
RESULT OF ALLEGED NEGLIGENT AND UNLAWFUL ACTION BY THE ASSURED'S WIFE
THE CAR COLLIDED WITH A TRUCK JUNE 16, 1934.  RESPONDENT COUGHRAN
SUFFERED INJURIES FOR WHICH HE RECOVERED JUDGMENT AGAINST ANTHONY, ALSO
AGAINST HIS WIFE.  BOTH WERE INSOLVENT; A WRIT OF EXECUTION AGAINST
THEM WAS RETURNED UNSATISFIED. 

THEREUPON RESPONDENT COMMENCED THIS SUIT TO RECOVER OF PETITIONER THE
AMOUNT OF HIS UNPAID JUDGMENT.  HE CLAIMED THIS RIGHT UNDER THE POLICY
AND STATUTE.  ANSWERING, THE COMPANY EXHIBITED THE POLICY AND DENIED
LIABILITY.  AS A FIRST SEPARATE DEFENSE IT ALLEGED THAT ANTHONY AND HIS
WIFE HAD NOT COMPLIED WITH CERTAIN TERMS OF THE CONTRACT.  AS A SECOND
 

"THAT SAID ACCIDENT WAS AN ACCIDENT FOR WHICH THE DEFENDANT UNDER THE
TERMS AND CONDITIONS OF SAID POLICY IS NOT LIABLE IN THAT:  AT THE TIME
AND PLACE OF THE ACCIDENT THE AUTOMOBILE OF THE INSURED WAS BEING
DRIVEN AND OPERATED BY A PERSON WHO WAS NOT THE PAID DRIVER OF THE
INSURED, NOR A MEMBER OF HIS IMMEDIATE FAMILY, NOR A PERSON ACTING
UNDER THE DIRECTION OF THE ASSURED.  THIS DEFENDANT ALLEGES THAT THE
SAID AUTOMOBILE AT THE TIME OF THE ACCIDENT WAS BEING DRIVEN AND
OPERATED BY A PERSON IN VIOLATION OF THE LAWS OF THE STATE OF
CALIFORNIA AS TO AGE AND AS TO DRIVER'S LICENSE AND FURTHER ALLEGES
THAT THE DRIVER OF SAID CAR WAS A MINOR, BEING A FEMALE OF THE AGE OF
APPROXIMATELY 13 YEARS." 

THERE WERE OTHER SEPARATE DEFENSES. 

A JURY HAVING BEEN WAIVED, THE CAUSE WENT TO THE COURT ON THE
PLEADINGS AND EVIDENCE.  IT MADE FINDINGS OF FACT WITH CONCLUSION OF
LAW AND ENTERED JUDGMENT FOR COUGHRAN.  NEITHER SIDE REQUESTED OTHER OR
DIFFERENT FINDINGS. 

THE CIRCUIT COURT OF APPEALS THOUGHT FINDINGS III AND XII WERE
INCONSISTENT "AND TO ELUCIDATE THE TRUTH, A REVIEW OF THE TESTIMONY IS
REQUIRED."  AFTER SUCH REVIEW IT RULED THAT THE FINDINGS SO ELUCIDATED
WERE ADEQUATE AND REQUIRED AFFIRMATION OF THE CHALLENGED JUDGMENT.  ONE
JUDGE THOUGHT OTHERWISE AND PRESENTED A SEPARATE OPINION. 

UNDER APPLICABLE STATUTES AND REPEATED RULINGS HERE, THE MATTER OPEN
FOR CONSIDERATION UPON THE APPEAL WAS WHETHER THE FINDINGS OF THE TRIAL
COURT SUPPORTED ITS JUDGMENT.  TO REVIEW THE EVIDENCE WAS BEYOND THE
COMPETENCY OF THE COURT.  U.S.C. TITLE 28, SECS. 773, 875; WALNUT V.
WADE, 103 U.S. 683, 688; STANLEY V. SUPERVISORS OF ALBANY, 121 U.S.
535, 547; LAW V. UNITED STATES, 266 U.S. 494, 496. 

TWO PERSONS WERE IN THE INSURED AUTOMOBILE WHEN THE ACCIDENT
OCCURRED.  NANCY LEIDENDEKER, A GIRL OF 13 WITHOUT LICENSE TO DRIVE,
OCCUPIED THE DRIVER'S SEAT.  BY HER SIDE SAT HELEN B. ANTHONY, WIFE OF
THE ASSURED, AN ADULT HOLDING A DRIVER'S LICENSE. 

THE PRINCIPAL POINT UPON WHICH THE PETITIONER NOW RELIES IS THAT AS
THE ACCIDENT OCCURRED WHEN THE CAR WAS BEING DRIVEN AND OPERATED BY THE
YOUNG GIRL CONTRARY TO THE OWNER'S COMMANDS AND IN VIOLATION OF
CALIFORNIA STATUTES, THE POLICY DID NOT COVER HIS LIABILITY. 

THE POLICY (INCORPORATED IN THE FINDINGS) UNDER THE HEADING "TERMS
AND CONDITIONS FORMING A PART OF THIS POLICY," PROVIDES - 

"(1)  RISKS NOT ASSUMED BY THIS COMPANY.  THE COMPANY SHALL NOT BE
LIABLE AND NO LIABILITY OR OBLIGATION OF ANY KIND SHALL ATTACH TO THE
COMPANY FOR LOSSES OR DAMAGE:...(A)  ...  (D) UNLESS THE SAID
AUTOMOBILE IS BEING OPERATED BY THE ASSURED, HIS PAID DRIVER, MEMBERS
OF HIS IMMEDIATE FAMILY, OR PERSONS ACTING UNDER THE DIRECTION OF THE
ASSURED; (E) CAUSED WHILE THE SAID AUTOMOBILE IS BEING DRIVEN OR
OPERATED BY ANY PERSON WHATSOEVER EITHER UNDER THE INFLUENCE OF LIQUOR
OR DRUGS OR VIOLATING ANY LAW OR ORDINANCE AS TO AGE OR DRIVING
LICENSE; (F)  ..." 

APPLICABLE SECTIONS OF THE CALIFORNIA VEHICLE ACT,  - STATS. 1923,
PP. 518, 519, 536; STATS. 1927, P. 1427; STATS. 1931, P. 2108 -
FOLLOW: 

"SECTION 1.  THE FOLLOWING WORDS AND PHRASES USED IN THIS ACT SHALL
HAVE THE MEANINGS HERE ASCRIBED TO THEM." 

     .         .         .         .         . 

"SEC. 18.  'OPERATOR.'  EVERY PERSON WHO DRIVES, OPERATES OR IS IN
ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE UPON A PUBLIC HIGHWAY." 

"SEC. 76.  UNLAWFUL TO EMPLOY UNLICENSED CHAUFFEUR.  NO PERSON SHALL
EMPLOY FOR HIRE AS A CHAUFFEUR OF A MOTOR VEHICLE, ANY PERSON NOT
LICENSED AS IN THIS ACT PROVIDED.  NO PERSON SHALL AUTHORIZE OR
KNOWINGLY PERMIT A MOTOR VEHICLE OWNED BY HIM OR UNDER HIS CONTROL, TO
BE DRIVEN BY ANY PERSON WHO HAS NO LEGAL RIGHT TO DO SO OR IN VIOLATION
OF THE PROVISIONS OF THIS ACT." 

"SEC. 58.  OPERATORS AND CHAUFFEURS MUST BE LICENSED. 

"(A)  IT SHALL BE UNLAWFUL FOR ANY PERSON TO DRIVE A MOTOR VEHICLE
UPON ANY PUBLIC HIGHWAY IN THIS STATE, WHETHER AS AN OPERATOR OR A
CHAUFFEUR, UNLESS SUCH PERSON HAS BEEN LICENSED AS AN OPERATOR OR
CHAUFFEUR; EXCEPT SUCH PERSONS AS ARE EXPRESSLY EXEMPTED UNDER THIS
ACT." 

"SEC. 64.  WHAT PERSONS SHALL NOT BE LICENSED AS OPERATORS OR
CHAUFFEURS. 

"(A)  AN OPERATOR'S LICENSE SHALL NOT BE ISSUED TO ANY PERSON UNDER
THE AGE OF SIXTEEN YEARS AND NO CHAUFFEUR'S LICENSE SHALL BE ISSUED TO
ANY PERSON UNDER THE AGE OF EIGHTEEN YEARS, PROVIDED THAT AN OPERATOR'S
LICENSE MAY BE ISSUED TO ANY MINOR OVER THE AGE OF FOURTEEN YEARS AND
LESS THAN SIXTEEN YEARS OF AGE UPON SPECIAL APPLICATION AND STATEMENT
OF REASONS BY THE PARENT OR GUARDIAN OF SUCH MINOR." 

ESPECIALLY PERTINENT FINDINGS BY THE TRIAL COURT FOLLOW: 

"III.  THE COURT FINDS THAT ON OR ABOUT THE 16TH DAY OF JUNE, 1934,
AND WHILE SAID POLICY WAS IN FULL FORCE AND EFFECT, ONE HELEN B.
ANTHONY OPERATED THE CHEVROLET AUTOMOBILE REFERRED TO IN AND COVERED BY
THE SAID POLICY OF INSURANCE WITH THE PERMISSION AND CONSENT OF THE
ASSURED, R. O. ANTHONY, AND OPERATED THE SAME NEGLIGENTLY SO AS
PROXIMATELY TO CAUSE AN ACCIDENT AND INJURY TO THE PERSON AND PROPERTY
OF THE PLAINTIFF TO HIS DAMAGE IN THE REASONABLE SUM OF FIVE THOUSAND
NINETY-TWO AND 55/100 DOLLARS ($5092.55)." 

"IX.  THE COURT FINDS THAT IT IS TRUE THAT THE DEFENDANT, PRIOR TO
THE TRIAL OF THE ACTION IN THE STATE COURT ENTERED INTO THE NON-WAIVER
AGREEMENT RECEIVED IN EVIDENCE IN THIS ACTION WITH THE ASSURED, R. O.
ANTHONY, AND WITH HELEN B. ANTHONY.  THAT THE SAID NON-WAIVER AGREEMENT
WAS EXECUTED JUST PRIOR TO THE COMMENCEMENT OF THE TRIAL OF THE STATE
COURT ACTION.  THAT THE PLAINTIFF WAS NOT A PARTY TO THAT AGREEMENT AND
HAD NO KNOWLEDGE OF ANY FACTS REFERRED TO THEREIN AND WAS NOT IN
PRIVITY WITH ANY OF THE DEFENDANTS IN THE STATE COURT ACTION AND THAT
SO FAR AS THE CONDUCT OF THE DEFENDANT AFFECTS THE PLAINTIFF IN THIS
ACTION, THE DEFENDANT MANAGED AND CONDUCTED THE DEFENSE IN THE STATE
COURT." 

"XII.  WITH REGARD TO THE SECOND SEPARATE DEFENSE OF DEFENDANT, THE
COURT FINDS THAT THE SAID AUTOMOBILE AT THE TIME OF THE IMPACT THAT
RESULTED IN THE INJURY TO THE PLAINTIFF WAS BEING JOINTLY OPERATED BY
HELEN B. ANTHONY AND NANCY LEIDENDEKER; THAT SAID HELEN B. ANTHONY WAS
A MEMBER OF THE ASSURED'S IMMEDIATE FAMILY AND WAS AN ADULT PERSON OVER
THE AGE OF TWENTY-ONE (21) YEARS WHO WAS LICENSED BY THE STATE OF
CALIFORNIA TO DRIVE AN AUTOMOBILE; AND THAT SAID NANCY LEIDENDEKER WAS
A MINOR AND NOT PERMITTED UNDER THE APPLICABLE LAWS TO OPERATE A MOTOR
VEHICLE IN THE STATE OF CALIFORNIA; THAT THE ASSURED HAD FORBIDDEN SAID
MINOR NANCY LEIDENDEKER TO DRIVE ANY MOTOR VEHICLE OR AUTOMOBILE OF
WHICH HE WAS THE OWNER OR WHICH HE CONTROLLED; AND THAT THE ACTION OF
SAID NANCY LEIDENDEKER ON THE DAY OF THE ACCIDENT AND AT THE TIME OF
THE IMPACT INVOLVED IN THIS ACTION WERE IN DISOBEDIENCE OF AND CONTRARY
TO THE COMMANDS, ORDERS AND INSTRUCTIONS OF THE ASSURED, R. O. ANTHONY;
THAT AT THE TIME OF THE ACCIDENT, INSOFAR AS THE PROPULSION OF THE
VEHICLE WAS CONCERNED, OTHER THAN THE MEANS OF DIRECTION, ALL
INSTRUMENTALITIES OF SAID AUTOMOBILE WERE BEING PHYSICALLY ACTUATED BY
SAID MINOR NANCY LEIDENDEKER, WITH THE ACQUIESCENCE AND KNOWLEDGE OF
HELEN B. ANTHONY AND WITHOUT ANY KNOWLEDGE, ACQUIESCENCE OR CONSENT ON
THE PART OF THE ASSURED, R. O. ANTHONY; THAT THE PROXIMATE AND DIRECT
CAUSE OF THE COLLISION BETWEEN THE INSURED AUTOMOBILE AND A TRUCK OWNED
BY SAN PEDRO COMMERCIAL COMPANY WAS THE ACT OF HELEN B. ANTHONY IN
SEIZING THE STEERING WHEEL OF THE AUTOMOBILE AT AND IMMEDIATELY
PRECEDING THE MOMENT OF IMPACT AND COLLISION." 

"XVI.  THAT PRIOR TO THE COMMENCEMENT OF THE TRIAL OF THE SAID STATE
COURT ACTION THE DEFENDANT HAD FULL KNOWLEDGE OF ALL THE FACTS AND
CIRCUMSTANCES CONCERNING THE PRESENCE OF THE SAID NANCY LEIDENDEKER IN
THE DRIVER'S SEAT OR IN A PART OF SAID SEAT, AND ALL OTHER FACTS RELIED
ON BY THE DEFENDANT AS CONSTITUTING A CONCEALMENT AND A DEFENSE OF THE
CASE AT BAR, BUT THAT THE DEFENDANT DID NOT REVEAL SAID FACTS TO THE
PLAINTIFF OR HIS COUNSEL, AND THAT PLAINTIFF AND HIS COUNSEL HAD NO
KNOWLEDGE THAT THE SAID NANCY LEIDENDEKER OCCUPIED ANY PART OF THE
DRIVER'S SEAT UNTIL SAID TRIAL WAS COMPLETED." 

"XVII.  THE COURT FINDS THAT PRIOR TO THE COLLISION BETWEEN THE
INSURED AUTOMOBILE AND A TRUCK OWNED BY THE SAN PEDRO COMMERCIAL
COMPANY, HELEN B. ANTHONY SEIZED THE STEERING WHEEL OF THE INSURED
AUTOMOBILE AND STEERED THE SAME TO THE RIGHT, PROXIMATELY CAUSING THE
SAME TO COME INTO COLLISION WITH THE SAID TRUCK AND PROXIMATELY CAUSING
THE SAME TO TURN TO ITS RIGHT, PROXIMATELY CAUSING THE COLLISION OF
PLAINTIFF'S CAR AND THE INJURIES AND DAMAGES SUFFERED BY HIM." 

WHEN READ TOGETHER NO MATERIAL CONFLICT EXISTS BETWEEN FINDINGS III
AND XII; THERE IS NO REAL DIFFICULTY IN UNDERSTANDING THE CIRCUMSTANCES
TO WHICH THEY ARE ADDRESSED.  THE FIRST CONTAINS STATEMENTS CONCERNING
THE CONDUCT OF ONE IN AUTHORITY; THE SECOND DESCRIBES IN DETAIL WHAT
REALLY TOOK PLACE AT THE MOMENT OF COLLISION.  THE WORD "OPERATE" HAS
VARYING MEANINGS ACCORDING TO THE CONTEXT.  WEBSTER'S NEW INTERNATIONAL
DICTIONARY.  ONE MAY OPERATE SINGLY WITH HIS OWN HANDS, OR JOINTLY WITH
ANOTHER, OR THROUGH ONE OR MORE AGENTS. 

FROM THE FINDINGS IT APPEARS THAT WHEN THE ACCIDENT OCCURRED THE
AUTOMOBILE WAS NOT BEING OPERATED BY THE ASSURED, HIS PAID DRIVER, A
MEMBER OF HIS IMMEDIATE FAMILY OR A PERSON ACTING UNDER HIS DIRECTION,
WITHIN FAIR INTENDMENT OF THE POLICY.  CONTRARY TO THE OWNER'S COMMANDS
"INSOFAR AS THE PROPULSION OF THE VEHICLE WAS CONCERNED, OTHER THAN THE
MEANS OF DIRECTION, ALL INSTRUMENTALITIES OF SAID AUTOMOBILE WERE BEING
PHYSICALLY ACTUATED BY SAID MINOR" WHO WAS INHIBITED BY THE STATUTES
FROM DRIVING OR OPERATING A MOTOR VEHICLE WITHIN THE STATE. 

JUST BEFORE THE ACCIDENT, MRS. ANTHONY SEIZED THE STEERING WHEEL AND
BY NEGLIGENT MANIPULATION OF THIS CAUSED THE COLLISION. 

IF, AS FOUND, THE AUTOMOBILE WAS BEING JOINTLY OPERATED BY THE WIFE
AND THE GIRL THE RISK WAS NOT WITHIN THE POLICY.  THE LATTER WAS
FORBIDDEN BY LAW TO OPERATE OR DRIVE JOINTLY OR SINGLY.  IF THE WIFE
WAS IN CONTROL THE STATUTE FORBADE HER TO PERMIT DRIVING BY THE GIRL. 
IN ANY VIEW, WHEN THE COLLISION OCCURRED THE CAR WAS BEING DRIVEN OR
OPERATED IN VIOLATION OF THE STATUTES. 

IN SUPPORT OF HIS POSITION RESPONDENT RELIES HEAVILY UPON O'CONNELL
V. N.J. FIDELITY INS. CO., 201 APP. DIV. (N.Y.)  117; 193 N.Y.S. 911;
AND WILLIAMS V. NELSON, 228 MASS. 191; 117 N.E. 189.  THESE CAUSES, WE
THINK, ARE NOT IN POINT.  THEY WERE DECIDED UPON FACTS AND
CIRCUMSTANCES MATERIALLY DIFFERENT FROM THOSE HERE DISCLOSED. 

RESPONDENT FURTHER SUBMITS THAT PETITIONER IS PRECLUDED FROM ANY
INQUIRY CONCERNING WHO ACTUALLY WAS DRIVING THE CAR WHEN THE ACCIDENT
OCCURRED.  HE SAYS THE ENTIRE SEQUENCE OF EVENTS SURROUNDING NANCY
LEIDENDEKER WAS HIGHLY MATERIAL AND SHOULD HAVE BEEN LITIGATED IN THE
ORIGINAL TORT ACTION BROUGHT BY COUGHRAN AGAINST THE ANTHONYS, AND
BASED SOLELY UPON PERMISSIVE USE.  ALSO, IF THE FACTS THEN KNOWN BY
PETITIONER HAD BEEN THERE REVEALED, IT WOULD HAVE BECOME APPARENT THAT
THE GIRL LACKED PERMISSION TO DRIVE AND THAT THE WIFE EXCEEDED THE
TERMS OF HER AUTHORIZATION; AND THAT BY SUPPRESSING THESE FACTS
PETITIONER EXPOSED THE ASSURED TO A LIABILITY WHICH OTHERWISE MIGHT NOT
HAVE BEEN IMPOSED. 

THE JUDGMENT ROLL OF THE TORT ACTION IS NOT BEFORE US; WE ARE LIMITED
TO THE FINDINGS.  THAT ACTION WAS DEFENDED BY THE PETITIONER UNDER A
NON-WAIVER AGREEMENT; THE COMPLAINT ALLEGED DAMAGES FROM NEGLIGENCE OF
THE WIFE AS DRIVER AND OPERATOR IMPUTED TO THE HUSBAND.  DEFENSES NOW
PRESENTED BY THE INSURANCE COMPANY AGAINST LIABILITY UNDER THE POLICY
WERE NOT INVOLVED.  JOINT DRIVING BY MRS. ANTHONY AND THE GIRL WAS NOT
SUBJECT TO INQUIRY. 

MOREOVER, IN THE CIRCUMSTANCES WE MAY NOT CONCLUDE THAT RESPONDENT
SHOULD PREVAIL BECAUSE PETITIONER FAILED TO PRESENT FACTS IN THE TORT
ACTION WHICH HE SAYS IF THEN PRESENTED MIGHT HAVE DEFEATED THE VERY
JUDGMENT UPON WHICH HE NOW RELIES TO SUPPORT HIS CLAIM. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED.  THE
CAUSE WILL BE REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO ENTER
JUDGMENT FOR THE INSURANCE COMPANY, PETITIONER HERE.  REVERSED.    MR.
JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS
CASE. 
..END :




GUARANTY TRUST CO. V. COMM'R, 303 U.S. 493 


NO. 301.  ARGUED JANUARY 12, 13, 1938.  - DECIDED MARCH 28, 1938.  - 89
F.2D 692, AFFIRMED. 


A PARTNERSHIP WHOSE FISCAL YEAR EXPIRED JULY 31, 1933, WAS DISSOLVED
BY THE DEATH OF A MEMBER IN DECEMBER, 1933.  DECEDENT HAD KEPT HIS
BOOKS ON THE CASH RECEIPTS AND DISBURSEMENTS BASIS AND FILED HIS
RETURNS FOR INCOME TAX FOR EACH CALENDAR YEAR ON THAT BASIS.  THE
PARTNERSHIP KEPT ITS BOOKS ON A LIKE BASIS, BUT MADE ITS RETURNS FOR A
FISCAL YEAR ENDING JULY 31.  UPON A PARTNERSHIP ACCOUNTING, HIS SHARE
OF THE PROFITS FROM AUGUST 1 TO DATE OF HIS DEATH WAS ASCERTAINED, AND
IN THE FOLLOWING JANUARY AND FEBRUARY WAS PAID TO THE EXECUTOR.  HELD,
THAT THE DECEDENT'S TAXABLE INCOME FOR THE CALENDAR YEAR 1933 INCLUDES
HIS SHARE OF PARTNERSHIP PROFITS FROM THE BEGINNING OF THE PARTNERSHIP
FISCAL YEAR ON AUG. 1, 1933, TO THE DATE OF HIS DEATH IN THE SAME YEAR,
IN ADDITION TO HIS SHARE OF THE PARTNERSHIP PROFITS FOR ITS FISCAL YEAR
ENDING JULY 31.  REV. ACT 1932, SEC. 182(A).  P. 495. 

GUARANTY TRUST CO., EXECUTOR, V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 670, TO REVIEW A JUDGMENT OF THE COURT BELOW
REVERSING AN ORDER OF THE BOARD OF TAX APPEALS.  THE BOARD'S ORDER, 34
B.T.A. 384, SET ASIDE A DEFICIENCY ASSESSMENT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

WHETHER A DECEASED PARTNER'S TAXABLE INCOME FOR THE CALENDAR YEAR
1933 INCLUDES HIS SHARE OF PARTNERSHIP PROFITS FROM THE BEGINNING OF
THE PARTNERSHIP FISCAL YEAR ON AUGUST 1, 1933, TO THE DATE OF HIS DEATH
IN THE SAME YEAR, IN ADDITION TO HIS SHARE OF THE PARTNERSHIP PROFITS
FOR ITS FISCAL YEAR ENDING JULY 31, IS THE QUESTION FOR DECISION. 

PETITIONER'S TESTATOR, WHO DIED DECEMBER 16, 1933, WAS A MEMBER OF A
NEW YORK PARTNERSHIP WHOSE FISCAL YEAR EXPIRED ON JULY 31, 1933.  THE
PARTNERSHIP, WITH THE ADDITION OF A NEW PARTNER, WAS RENEWED, BY
AGREEMENT, FOR ONE YEAR FROM AUGUST 1.  AFTER HIS DEATH THE SURVIVING
PARTNERS, BY A FURTHER AGREEMENT, CONTINUED THE PARTNERSHIP BUSINESS
FROM THAT DATE UNTIL JULY 31 OF THE NEXT YEAR, AS OF WHICH DATE PROFITS
WERE TO BE DETERMINED, AND THEREAFTER FROM YEAR TO YEAR.  DECEDENT KEPT
HIS BOOKS ON THE CASH RECEIPTS AND DISBURSEMENTS BASIS AND FILED HIS
RETURNS FOR INCOME TAX FOR EACH CALENDAR YEAR ON THAT BASIS.  THE
PARTNERSHIP KEPT ITS BOOKS ON A LIKE BASIS, BUT MADE ITS RETURNS FOR A
FISCAL YEAR ENDING JULY 31. 

UPON A PARTNERSHIP ACCOUNTING AS OF THE DATE OF DECEDENT'S DEATH, HIS
SHARE OF THE PROFITS FROM AUGUST 1 TO THAT DATE WAS ASCERTAINED AND IN
THE FOLLOWING JANUARY AND FEBRUARY WAS PAID TO PETITIONER, AS
EXECUTOR.  IN MAKING RETURN FOR TAXATION OF DECEDENT'S INCOME FOR 1933,
PETITIONER INCLUDED DECEDENT'S SHARE OF THE FIRM PROFITS ACCRUING FOR
THE YEAR ENDING JULY 31, BUT OMITTED TO RETURN HIS SHARE OF THE FIRM
PROFITS EARNED BETWEEN THAT TIME AND HIS DEATH. 

THE COMMISSIONER'S DETERMINATION OF A DEFICIENCY BASED ON THE OMITTED
INCOME, WAS SET ASIDE BY THE BOARD OF TAX APPEALS.  34 B.T.A. 384.  THE
BOARD'S ORDER WAS REVERSED BY THE COURT OF APPEALS FOR THE SECOND
CIRCUIT, WHICH HELD THAT DECEDENT'S SHARE OF THE PARTNERSHIP PROFITS
FOR THE YEAR ENDING JULY 31 AND FOR THE ENSUING PERIOD ENDING DECEMBER
16, 1933, WAS INCOME OF DECEDENT IN 1933 AND TAXABLE AS SUCH FOR THAT
YEAR.  89 F.(2D) 692.  WE GRANTED CERTIORARI, THE QUESTION BEING OF
IMPORTANCE IN THE ADMINISTRATION OF THE REVENUE LAWS, AND THE DECISION
BEING CHALLENGED BY PETITIONER AS NOT IN HARMONY WITH BURNET V. SANFORD
& BROOKS CO., 282 U.S. 359. 

BOTH BY THE PRACTICAL CONSTRUCTION GIVEN TO THE PARTNERSHIP AGREEMENT
BY PETITIONER AND THE SURVIVING PARTNERS, AND BY THE APPLICABLE
PROVISIONS OF THE NEW YORK PARTNERSHIP ACT,  FN1 DECEDENT'S DEATH
DISSOLVED THE PARTNERSHIP, TERMINATED HIS RIGHT TO SHARE IN THE
PROFITS, AND FIXED THE DATE AS OF WHICH THE SURVIVING PARTNERS WERE
BOUND TO ACCOUNT FOR THE PROFITS.  DARCY V. COMMISSIONER, 66 F.(2D)
581.  DECEDENT'S ESTATE IN FACT RECEIVED THE PROFITS ACCRUED ON THE
DATE OF HIS DEATH, AND PARTNERSHIP PROFITS THUS ACCRUED AND
DISTRIBUTABLE BY REASON OF THE DEATH OF A PARTNER ARE HIS INCOME,
TAXABLE AS SUCH.  BULL V. UNITED STATES, 295 U.S. 247.  BUT PETITIONER
INSISTS THAT HERE THEY CANNOT BE INCLUDED IN DECEDENT'S 1933 INCOME FOR
PURPOSES OF TAXATION, SINCE IN THAT CASE HIS PARTNERSHIP PROFITS BOTH
FOR THE FULL YEAR ENDING JULY 31, 1933 AND FOR THE ENSUING FOUR AND ONE
HALF MONTHS' PERIOD ENDING WITH HIS DEATH IN DECEMBER, WOULD BE TAXED
AS HIS PROFITS FOR A SINGLE YEAR.  THIS IT IS SAID OFFENDS AGAINST THE
POLICY OF THE REVENUE ACTS TO ASSESS INCOME TAXES ANNUALLY ON THE BASIS
OF TWELVE MONTH PERIODS AND, SO OFFENDING, CONFLICTS WITH THE
APPROPRIATE CONSTRUCTION OF THE APPLICABLE PROVISIONS OF SECS. 181, 182
OF THE REVENUE ACT OF 1932, 47 STAT. 169, RELATING TO THE TAXATION OF
PARTNERSHIP PROFITS. 

UNDER THE ACT OF 1932, AS WITH EARLIER REVENUE ACTS, PARTNERSHIPS ARE
NOT TAXED UPON THEIR INCOME.  BY SEC. 189 THEY ARE REQUIRED TO FILE
INFORMATION RETURNS SHOWING THE PARTNERSHIP PROFITS AND THE RESPECTIVE
SHARES OF THE PARTNERS IN THE PROFITS.  BUT SEC. 181 PROVIDES THAT THE
PARTNERS SHALL BE "LIABLE FOR INCOME TAX ONLY IN THEIR INDIVIDUAL
CAPACITY," AND SEC. 182(A) READS: 

"GENERAL RULE.  - THERE SHALL BE INCLUDED IN COMPUTING THE NET INCOME
OF EACH PARTNER HIS DISTRIBUTIVE SHARE, WHETHER DISTRIBUTED OR NOT, OF
THE NET INCOME OF THE PARTNERSHIP FOR THE TAXABLE YEAR.  IF THE TAXABLE
YEAR OF A PARTNER IS DIFFERENT FROM THAT OF THE PARTNERSHIP, THE AMOUNT
SO INCLUDED SHALL BE BASED UPON THE INCOME OF THE PARTNERSHIP FOR ANY
TAXABLE YEAR OF THE PARTNERSHIP ENDING WITHIN HIS TAXABLE YEAR." 

SINCE THE PARTNERSHIP IS NOT A TAXPAYER, IT HAS NO TAXABLE YEAR IN A
LITERAL SENSE.  BUT AS USED IN THIS SECTION "TAXABLE YEAR OF THE
PARTNERSHIP" MEANS ITS FISCAL YEAR, FOR "TAXABLE YEAR" IS DEFINED BY
SEC. 48 AS INCLUDING IN ITS MEANING "A FISCAL YEAR  ...  UPON THE BASIS
OF WHICH THE NET INCOME IS COMPUTED" AND "FISCAL YEAR" IS DEFINED AS
"AN ACCOUNTING PERIOD OF TWELVE MONTHS ENDING ON THE LAST DAY OF ANY
MONTH OTHER THAN DECEMBER."  A "TAXABLE YEAR," IT IS DECLARED, INCLUDES
THE PERIOD FOR WHICH A RETURN IS MADE WHEN, UNDER THE PROVISIONS OF THE
ACT OR REGULATIONS, A RETURN FOR A FRACTIONAL PART OF A YEAR IS
REQUIRED.  AS A PARTNER'S PROFITS ARE ASCERTAINABLE ONLY ON AN
ACCOUNTING FOR SUCH PERIODS AS MAY BE FIXED BY LAW OR BY THE
PARTNERSHIP ITSELF, AND AS THE FISCAL YEAR OR ACCOUNTING PERIOD OF THE
PARTNERSHIP MAY DIFFER FROM THAT OF THE TAXABLE YEAR OF THE PARTNER,
SEC. 182(A), AS A MATTER OF CONVENIENCE TO TAXPAYERS, AUTHORIZES AND
PROVIDES FOR THIS DIFFERENCE BY REQUIRING IN THAT CASE THAT THE
PARTNER'S DISTRIBUTIVE SHARE OF THE PROFITS ASCERTAINED AT THE END OF
THE PARTNERSHIP FISCAL YEAR SHALL BE INCLUDED IN HIS TAXABLE INCOME FOR
THE YEAR IN WHICH THE FISCAL YEAR OF THE PARTNERSHIP ENDS. 

PETITIONER DOES NOT COMPLAIN OF THE TAXATION OF DECEDENT'S SHARE OF
THE PARTNERSHIP PROFITS FOR THE YEAR ENDING JULY 31 AS 1933 INCOME. 
BUT IT CONTENDS THAT THE REFERENCE IN SEC. 182(A) TO THE "TAXABLE YEAR
OF THE PARTNERSHIP," AND THE REQUIREMENT THAT THE AMOUNT OF THE
PARTNER'S TAXABLE INCOME "SHALL BE BASED UPON THE INCOME OF THE
PARTNERSHIP FOR ANY TAXABLE YEAR OF THE PARTNERSHIP ENDING WITHIN HIS
TAXABLE YEAR," READ IN THEIR CONTEXT AND IN THE LIGHT OF THE PRACTICE
LONG ESTABLISHED BY THE REVENUE ACTS, OF TAXING INCOME FOR TWELVE MONTH
PERIODS, CONTEMPLATE THAT A PARTNER RETURNING INCOME FOR A CALENDAR
YEAR SHALL BE TAXABLE IN THAT YEAR ONLY UPON HIS INCOME FROM HIS FIRM
FOR A SINGLE PARTNERSHIP YEAR.  THIS IS SAID TO BE THE CASE EVEN THOUGH
THE INCOME DERIVED BY A PARTNER FROM THE FIRM BUSINESS BETWEEN THE END
OF THE PARTNERSHIP FISCAL YEAR AND THE DATE OF HIS DEATH IN THE SAME
YEAR CANNOT BE TAXED IN ANY OTHER. 

THIS ARGUMENT IS, WE THINK, BASED UPON A MISCONCEPTION OF THE POLICY
OF THE ACT AND A MISTAKEN CONSTRUCTION OF SEC. 182(A).  IT IS TRUE THAT
THE ACTS OF CONGRESS TAXING INCOME HAVE CONSISTENTLY LAID THE TAX UPON
THE NET INCOME RECEIVED BY OR ACCRUED TO THE TAXPAYER IN A "TAXABLE
YEAR," WHICH IS EITHER THE CALENDAR YEAR OR A DIFFERENT FISCAL YEAR, AS
THE TAXPAYER MAY ELECT.  BUT THEY HAVE NEVER UNDERTAKEN TO LIMIT THE
INCOME TAXABLE IN ANY ONE YEAR TO THAT DERIVED FROM THE TAXPAYER'S
ACTIVITIES OCCURRING IN THAT OR ANY OTHER SINGLE YEAR.  THE ITEMS OF
GROSS INCOME AND OF ALLOWED DEDUCTIONS TO BE INCLUDED IN THE INCOME
RETURN, ARE THOSE OF THE TAXPAYER FOR HIS TAXABLE YEAR, EVEN THOUGH
THEY MAY HAVE RESULTED FROM OR BE AFFECTED BY HIS BUSINESS TRANSACTIONS
OF OTHER YEARS.  BURNET V. SANFORD & BROOKS CO., SUPRA, 364, 365. 
CIRCUMSTANCES WHOLLY FORTUITOUS MAY DETERMINE THE YEAR IN WHICH INCOME,
WHENEVER EARNED, IS TAXABLE, AND MAY THUS AFFECT THE AMOUNT OF TAX. 
RECEIPT OF INCOME OR ACCRUAL OF THE RIGHT TO RECEIVE IT WITHIN THE TAX
YEAR IS THE TEST OF TAXABILITY, NOT THE TIME IT HAS TAKEN THE TAXPAYER
TO EARN IT NOR THE DURATION OF HIS INVESTMENTS WHICH HAVE FINALLY
RESULTED IN PROFIT.  LUCAS V. ALEXANDER, 279 U.S. 573. 

THE REVENUE ACTS HAVE CONSISTENTLY ADHERED TO THAT POLICY IN TAXING
THE INCOME OF A PARTNER.  SINCE THE PARTNER IS ENTITLED TO PROFITS ONLY
UPON A PARTNERSHIP ACCOUNTING AT THE END OF AN ACCOUNTING PERIOD, HIS
PROFITS BECOME SUBJECT TO INCOME TAX WHEN AND AS THEY ARE THUS
ASCERTAINED.  AS IN THE CASE OF ALL OTHER TAXPAYERS, THE PARTNER'S NET
INCOME IS REQUIRED BY THE GENERAL PROVISIONS OF SEC. 41 TO BE COMPUTED
"ON THE BASIS OF THE TAXPAYER'S ANNUAL ACCOUNTING PERIOD," HERE THE
CALENDAR YEAR, SO AS CLEARLY TO REFLECT THE INCOME.  AND SEC. 182(A)
COMMANDS THAT THE DISTRIBUTIVE SHARE OF EACH PARTNER IN THE PARTNERSHIP
PROFITS SHALL BE INCLUDED IN COMPUTING HIS TAX, WHETHER DISTRIBUTED OR
NOT. 

BY THESE PROVISIONS THE TAXABLE INCOME OF A PARTNER IS LIMITED TO
THAT SHARE OF THE PARTNERSHIP EARNINGS TO WHICH HE BECOMES ENTITLED
WITHIN HIS TAXABLE YEAR, BUT IT INCLUDES ALL THE DISTRIBUTIVE SHARE OF
THE PARTNERSHIP INCOME WHICH ACCRUES TO HIM IN THAT YEAR EVEN THOUGH
EARNED IN AN ACCOUNTING PERIOD NOT WHOLLY WITHIN THE YEAR, AND THOUGH
HIS RETURN, AS IN THE CASE OF DECEDENT, IS ON THE CASH RECEIPTS AND
DISBURSEMENTS BASIS.  IF THE PROVISIONS STOOD ALONE IT WOULD SEEM PLAIN
THAT THE PROFITS ACCRUING TO DECEDENT FROM THE TWO PARTNERSHIP
ACCOUNTINGS WITHIN HIS TAXABLE YEAR WOULD BE TAXABLE IN THAT YEAR, EVEN
THOUGH THE ACCOUNTING PERIODS AGGREGATED MORE THAN TWELVE MONTHS.  WE
THINK THE CONCLUDING SENTENCE OF SEC. 182(A), WHICH PROVIDES FOR THE
CASE WHERE THE PARTNER'S TAXABLE YEAR DIFFERS FROM THAT OF THE
PARTNERSHIP, DOES NOT CALL FOR ANY DIFFERENT RESULT. 

WE NEED NOT INQUIRE TOO METICULOUSLY WHETHER THE PARTNERSHIP "TAXABLE
YEAR," WITHIN THE MEANING OF SEC. 182(A), INCLUDES IN THE SPECIAL
CIRCUMSTANCES OF THIS CASE AN ACCOUNTING PERIOD OF LESS THAN TWELVE
MONTHS, HERE FROM JULY 31 TO THE DEATH OF DECEDENT.  PETITIONER MAKES
NO CONTENTION THAT IT DOES NOT, NOR COULD WELL DO SO, FOR IF NOT SO
INCLUDED IT IS NOT WITHIN THE PHRASE "ANY TAXABLE YEAR OF THE
PARTNERSHIP," OCCURRING IN THE SECOND SENTENCE OF SEC. 182(A), ON WHICH
PETITIONER RELIES TO EXCLUDE THE INCOME FOR THAT PERIOD FROM TAXATION
OTHERWISE IMPOSED BY THE GENERAL PROVISIONS OF SEC. 41 AND THE FIRST
SENTENCE OF SEC. 182(A).  THE ARGUMENT IS THAT THE YEAR ENDING JULY 31,
1933, WAS ONE PARTNERSHIP FISCAL YEAR OR ACCOUNTING PERIOD, AND THAT
THE ENSUING PERIOD UNTIL THE DEATH OF DECEDENT WAS ANOTHER, AND THAT
THE INCLUSION OF THE INCOME FOR BOTH PERIODS IN DECEDENT'S TAXABLE
INCOME IS PRECLUDED BY THE USE OF THE PHRASE "ANY TAXABLE YEAR" IN SEC.
182(A), WHICH IT IS SAID MUST BE TAKEN TO MEAN ANY ONE ACCOUNTING
PERIOD OF THE PARTNERSHIP. 

BUT WE THINK THE SENTENCE MUST BE READ AS SUPPLEMENTING THE PRECEDING
ONE AND SEC. 41, AND NOT AS LIMITING THEM.  WE CAN DISCERN ELSEWHERE IN
THE ACT NO INDICATION OF ANY CONGRESSIONAL PURPOSE TO RELIEVE BUSINESS
INCOME FROM TAXATION IN THE YEAR WHEN, UNDER THE APPLICABLE PROVISIONS
OF THE STATUTE, IT IS DISTRIBUTABLE TO A PARTNER.  SECTIONS 11 AND 12
DECLARE IN ALL-INCLUSIVE TERMS THAT INCOME TAXES "SHALL BE LEVIED,
COLLECTED, AND PAID FOR EACH TAXABLE YEAR UPON THE NET INCOME OF EVERY
INDIVIDUAL."  IT WOULD REQUIRE MORE PRECISE WORDS THAN THOSE OF SEC.
182(A) DIRECTING THAT THE TAXABLE INCOME OF A PARTNER SHALL BE BASED ON
PARTNERSHIP INCOME FOR "ANY" ACCOUNTING PERIOD OF THE PARTNERSHIP
ENDING WITHIN ITS TAXABLE YEAR, TO RESTRICT THE BROAD SWEEP OF SECS.
11, 12 AND 41.  CF. HEINER V. COLONIAL TRUST CO., 275 U.S. 232, 234,
235; HELVERING V. STOCKHOLMS ENSKILDA BANK, 293 U.S. 84, 89; UNITED
STATES V. SAFETY CAR HEATING & LIGHTING CO., 297 U.S. 88, 93; HELVERING
V. GOWRAN, 302 U.S. 238, 243, 244. 

THE PURPOSE OF SEC. 182(A) WHEN READ, AS IT MUST BE, WITH THESE OTHER
PART OF THE DISTRIBUTIVE SHARE OF THE PARTNERSHIP INCOME DURING THE
YEAR IN WHICH IT IS DISTRIBUTABLE.  THE OBJECT IS RATHER TO MAKE
CERTAIN THAT "THE AMOUNT SO INCLUDED" IN A PARTNER'S TAXABLE INCOME
"SHALL BE BASED UPON THE INCOME OF THE PARTNERSHIP" DISTRIBUTABLE
DURING THE PARTNER'S TAXABLE YEAR, EVEN THOUGH AN ACCOUNTING PERIOD OF
THE PARTNERSHIP ENDING IN THAT YEAR MAY NOT BE WHOLLY WITHIN IT. 

THIS CONCLUSION IS SUPPORTED BY THE LEGISLATIVE HISTORY OF THE SECOND
SENTENCE OF SEC. 182(A).  THE PROVISION FIRST APPEARED IN SEC. 218(A)
OF THE REVENUE ACT OF 1918.  AS ORIGINALLY INTRODUCED, THAT SECTION OF
THE HOUSE BILL WHICH BECAME THE REVENUE ACT OF 1918 PROVIDED FOR THE
TAXATION OF THE PARTNER'S DISTRIBUTIVE SHARE OF THE NET INCOME OF THE
PARTNERSHIP FOR "THE LAST ANNUAL ACCOUNTING PERIOD OF THE PARTNERSHIP,"
ENDING WITHIN HIS TAXABLE YEAR.  BY AMENDMENT THE QUOTED PHRASE WAS
STRICKEN FROM THE BILL AND THE WORDS "ANY ACCOUNTING PERIOD OF THE
PARTNERSHIP" SUBSTITUTED.  SEE H.R. 12863, 65TH CONG., 3RD SESS.
(COMMITTEE PRINT - AS AGREED TO IN CONFERENCE).  THE AMENDMENT WAS
OBVIOUSLY INCONSISTENT WITH ANY PURPOSE TO LIMIT THE AMOUNT OF THE
TAXABLE INCOME TO THAT OF ANY SINGLE OR PARTICULAR ACCOUNTING PERIOD OF
THE PARTNERSHIP ENDING WITHIN THE PARTNER'S TAXABLE YEAR.  THE PHRASE
WAS CHANGED BY SEC. 182(A) OF THE REVENUE ACT OF 1928 TO ITS PRESENT
FORM, "ANY TAXABLE YEAR OF THE PARTNERSHIP."  THE CONTINUED USE OF THE
WORD "ANY" AS QUALIFYING THE PHRASE "TAXABLE YEAR" IN THE 1928 AND 1932
ACTS, DOES NOT PRECLUDE THE PRESENT TAX IF "TAXABLE YEAR" BE TAKEN TO
MEAN A PARTNERSHIP ACCOUNTING PERIOD OF LESS THAN TWELVE MONTHS. 
REASONS HAVE ALREADY BEEN GIVEN WHY, IF IT MEANS AN ACCOUNTING PERIOD
OF A FULL YEAR, THE PRESENT TAX IS NEVERTHELESS DUE UNDER SEC. 41 AND
THE FIRST SENTENCE OF SEC. 182(A).  AFFIRMED.    FN1  NEW YORK
PARTNERSHIP ACT, LAWS OF 1919, C. 408: 

"SEC. 60.  DISSOLUTION DEFINED.  - THE DISSOLUTION OF A PARTNERSHIP
IS THE CHANGE IN THE RELATION OF THE PARTNERS CAUSED BY ANY PARTNER
CEASING TO BE ASSOCIATED IN THE CARRYING ON AS DISTINGUISHED FROM THE
WINDING UP OF THE BUSINESS. 

"SEC. 61.  PARTNERSHIP NOT TERMINATED BY DISSOLUTION.  - ON
DISSOLUTION THE PARTNERSHIP IS NOT TERMINATED, BUT CONTINUES UNTIL THE
WINDING UP OF PARTNERSHIP AFFAIRS IS COMPLETED. 

"SEC. 62.  CAUSES OF DISSOLUTION.  - DISSOLUTION IS CAUSED: 

     .         .     .         .         . 

"4.  BY THE DEATH OF ANY PARTNER; 

     .         .         .         .         . 

"SEC. 74.  ACCRUAL OF ACTIONS.  - THE RIGHT TO AN ACCOUNT OF HIS
INTEREST SHALL ACCRUE TO ANY PARTNER, OR HIS LEGAL REPRESENTATIVE, AS
AGAINST THE WINDING UP PARTNERS OR THE SURVIVING PARTNERS OR THE PERSON
OR PARTNERSHIP CONTINUING THE BUSINESS, AT THE DATE OF DISSOLUTION, IN
THE ABSENCE OF AGREEMENT TO THE CONTRARY." 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE ROBERTS ARE OF OPINION THAT
THE JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :




















UNITED STATES V. O'DONNELL, 303 U.S. 501 


NO. 487.  ARGUED MARCH 1, 2, 1938.  - DECIDED MARCH 28, 1938.  - 91 F.2D
14, REVERSED. 


IN A SUIT TO QUIET ITS TITLE TO A PART OF MARE ISLAND IN SAN FRANCISCO
BAY, WITHIN THE TERRITORY ACQUIRED FROM MEXICO BY THE TREATY OF
GUADALUPE HIDALGO, THE UNITED STATES CLAIMED UNDER A DEED TO IT IN 1853
BY BISSELL AND ASPINWALL, WHO DERIVED THEIR TITLE THROUGH A GRANT IN
1841 BY ALVARADO, MEXICAN GOVERNOR OF CALIFORNIA, TO CASTRO. 
RESPONDENTS CLAIMED UNDER A PATENT ISSUED BY CALIFORNIA TO DARLINGTON
IN 1857, PURPORTING TO CONVEY THE LAND IN QUESTION AS A PART OF THE
SWAMP OR OVERFLOWED LANDS GRANTED TO THE STATE BY THE SWAMP LANDS ACT
OF 1850.  THE BOARD OF LAND COMMISSIONERS, CREATED BY THE MEXICAN
CLAIMS ACT OF 1851, HAD CONFIRMED THE TITLE OF BISSELL AND ASPINWALL IN
1855.  ON APPEAL, THE DISTRICT COURT HAD AFFIRMED IN 1857, ALTHOUGH ITS
DECREE WAS UNSIGNED UNTIL 1930 WHEN A NUNC PRO TUNC DECREE WAS
ENTERED.  WHILE THE PROCEEDINGS BEFORE THE BOARD WERE PENDING BISSELL
AND ASPINWALL HAD CONVEYED BY DEED TO THE UNITED STATES.  HELD: 

1.  THIS COURT ACCEPTS A CONCURRENT FINDING BY THE DISTRICT COURT AND
THE CIRCUIT COURT OF APPEALS THAT THE LANDS IN QUESTION WERE WITHIN THE
DESCRIPTION OF THE DEED TO CASTRO.  P. 508. 

2.  AN ADJUDICATION IN A MANDAMUS PROCEEDING BROUGHT BY THE
RESPONDENTS, THAT IT WAS THE DUTY OF THE SECRETARY OF THE INTERIOR,
UNDER THE SWAMP LANDS ACT AND THE ACT OF JULY 23, 1866, TO ISSUE A
PATENT OF THE LANDS HERE INVOLVED TO CALIFORNIA, AND THE ISSUANCE OF
IT, ARE NOT DECISIVE OF ANY ISSUE IN THIS SUIT, AND IT IS OPEN TO THE
UNITED STATES TO SHOW THAT THE LANDS DID NOT PASS UNDER THE SWAMP LANDS
ACT.  P. 508. 

3.  THE EFFECT OF THE SWAMP LANDS ACT WAS TO INVEST THE STATE IN
PRAESENTI WITH AN INCHOATE TITLE TO THOSE LANDS FALLING WITHIN THE
DESCRIPTION OF THE ACT, TO BE PERFECTED AS OF THE DATE OF THE ACT WHEN
THE LAND SHOULD BE IDENTIFIED AND THE PATENT ISSUED.  IT DID NOT
INCLUDE LANDS WHICH THE GOVERNMENT HAD NOT ACQUIRED, NOR DID IT FREE
ANY OF THEM OF OBLIGATIONS TO WHICH THEY WERE SUBJECT WHEN IT WAS
PASSED.  P. 509. 

4.  SWAMP LANDS IN CALIFORNIA, BEING A PART OF THE TERRITORY ANNEXED
BY THE TREATY OF GUADALUPE HIDALGO, WERE SUBJECT TO ALL OBLIGATIONS
IMPOSED UPON THE UNITED STATES WITH RESPECT TO THEM UNDER THE
PRINCIPLES OF INTERNATIONAL LAW BY REASON OF THE ANNEXATION, AND BY
TREATY OBLIGATIONS.  P. 510. 

5.  THE OBLIGATIONS ASSUMED BY THE UNITED STATES IN RESPECT OF THE
TERRITORY ANNEXED BY THE TREATY OF GUADALUPE HIDALGO ANTEDATED AND WERE
SUPERIOR TO ANY RIGHTS DERIVED FROM THE UNITED STATES UNDER THE SWAMP
LANDS ACT.  P. 511. 

6.  CLAIMANTS UNDER THE UNITED STATES BY VIRTUE OF STATUTES DISPOSING
OF ITS PUBLIC LANDS IN CALIFORNIA, ARE NOT "THIRD PERSONS" WITHIN THE
MEANING OF THE MEXICAN CLAIMS ACT; AND CONFIRMATION UNDER THAT ACT OF
CLAIMS UNDER MEXICAN GRANTS IS CONCLUSIVE UPON ALL CLAIMING UNDER THE
UNITED STATES.  P. 512. 

7.  CONFIRMATION OF TITLES UNDER THE MEXICAN CLAIMS ACT IS AS
EFFECTIVE AND CONCLUSIVE UPON PATENTS UNDER THE SWAMP LANDS ACT AS IF
MADE AT THE DATE OF THE TREATY.  P. 513. 

8.  THE DECREE OF THE BOARD OF LAND COMMISSIONERS CONFIRMING THE
TITLE OF BISSELL AND ASPINWALL BECAME FINAL AND CONCLUSIVE WITHIN THE
PROVISIONS OF THE MEXICAN CLAIMS ACT, IRRESPECTIVE OF THE VALIDITY OF
THE DISTRICT COURT'S DECREE OF AFFIRMANCE.  P. 513. 

9.  PROCEEDINGS UNDER THE MEXICAN CLAIMS ACT WERE NOT REQUIRED TO BE
ADVERSARY, AND THAT THEY WERE NOT DOES NOT AFFECT THE VALIDITY OF A
DETERMINATION BY THE BOARD.  P. 524. 

10.  THE ACQUISITION BY THE UNITED STATES OF THE TITLE OF BISSELL AND
ASPINWALL, WHILE THEIR CLAIM WAS PENDING BEFORE THE BOARD OF LAND
COMMISSIONERS, DID NOT INVOLVE, BY REASON OF THE STATE'S INTEREST UNDER
THE SWAMP LANDS ACT, ANY BREACH OF EQUITABLE DUTY TO CALIFORNIA.  PP.
514 ET SEQ. 

11.  THERE IS NO BASIS IN THE RECORD FOR THE CONCLUSION THAT
CONFIRMATION OF THE BISSELL AND ASPINWALL CLAIM BY THE BOARD OF LAND
COMMISSIONERS WAS PROCURED OR ALLOWED TO STAND THROUGH ANY FRAUD,
CONCEALMENT, BAD FAITH, OR BREACH OF DUTY TO CALIFORNIA BY THE
GOVERNMENT OR ITS OFFICERS.  P. 523. 

12.  THE DECREE OF THE BOARD OF LAND COMMISSIONERS STANDS AS A VALID
ADMINISTRATIVE DETERMINATION OF THE VALIDITY OF THE CASTRO GRANT,
UNDISTURBED BY ANY SUBSEQUENT JUDICIAL PROCEEDINGS, AND IS CONCLUSIVE
UPON CALIFORNIA AND THOSE CLAIMING UNDER HER.  P. 524. 

UNITED STATES V. O'DONNELL ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 677, TO REVIEW A DECREE REVERSING A DECREE OF
THE DISTRICT COURT, WHICH HAD HELD IN FAVOR OF THE UNITED STATES IN A
SUIT BROUGHT BY IT TO QUIET TITLE. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE VALIDITY OF THE TITLE OF THE UNITED STATES TO
A PART OF MARE ISLAND IN SAN FRANCISCO BAY, WHICH WAS RESERVED FOR
PUBLIC PURPOSES BY PRESIDENTIAL PROCLAMATION IN 1850, WAS SELECTED BY
THE SECRETARY AS A NAVY YARD PURSUANT TO ACT OF CONGRESS, WAS RESERVED
FOR THAT PURPOSE BY PRESIDENTIAL ORDER IN 1853, AND SINCE 1854 HAS BEEN
SO USED. 

THE LANDS IN QUESTION ARE IN THE AREA ACQUIRED AS A RESULT OF THE
MEXICAN WAR BY THE TREATY OF GUADALUPE HIDALGO, JULY 4, 1848, 9 STAT.
922, WHICH GUARANTEED THE PROPERTY RIGHTS OF MEXICANS IN THE ANNEXED
TERRITORY.  THE UNITED STATES CLAIMS UNDER DEED TO IT IN 1853 BY
BISSELL AND ASPINWALL AND ANOTHER, WHO DERIVED THEIR TITLE UNDER GRANT
OF MAY 20, 1841, BY ALVARADO, MEXICAN GOVERNOR OF CALIFORNIA, TO
CASTRO, A MEXICAN CITIZEN, OF THE ISLAND LA YEGUA (MARE ISLAND) "IN ALL
ITS EXTENT."  RESPONDENTS CLAIM UNDER A PATENT ISSUED BY CALIFORNIA TO
DARLINGTON IN 1857, PURPORTING TO CONVEY THE LAND IN QUESTION AS A PART
OF THE SWAMP OR OVERFLOWED LANDS GRANTED TO THE STATE BY THE SWAMP
LANDS ACT OF CONGRESS, SEPT. 28, 1850, C. 84, 9 STAT. 519. 

UPON THE MILITARY OCCUPATION OF CALIFORNIA DURING THE MEXICAN WAR THE
UNITED STATES MILITARY COMMANDER HAD PROCLAIMED OFFICIALLY THAT MEXICAN
LAND TITLES WOULD RECEIVE DUE RECOGNITION BY THE UNITED STATES,  FN1
AND ART. 8 OF THE TREATY OF 1848 WITH MEXICO DECLARED THAT THE PROPERTY
RIGHTS OF MEXICANS IN THE ANNEXED TERRITORY SHOULD BE "INVIOLABLY
RESPECTED."  AFTER THE ADMISSION OF CALIFORNIA TO STATEHOOD, SEPTEMBER
9, 1850, CONGRESS ADOPTED THE MEXICAN CLAIMS ACT OF MARCH 3, 1851, 9
STAT. 631, WHICH ESTABLISHED A BOARD OF LAND COMMISSIONERS WITH
AUTHORITY, UPON PETITION OF THOSE CLAIMING UNDER MEXICAN OR SPANISH
GRANTS OF LAND IN THE ANNEXED TERRITORY, TO PASS UPON THE VALIDITY OF
THE GRANTS.  RIGHT TO A REVIEW OF THE BOARD'S DETERMINATION BY THE
DISTRICT COURT, AND THE SUPREME COURT OF THE UNITED STATES, WAS ALLOWED
THE CLAIMANTS AND THE GOVERNMENT.  BY SEC. 12 OF THE ACT OF AUGUST 31,
1852, 10 STAT. 76, 99, THE ATTORNEY GENERAL WAS GIVEN AUTHORITY OVER
APPEALS FROM DECISIONS OF THE BOARD ADVERSE TO THE INTERESTS OF THE
UNITED STATES. 

BISSELL AND ASPINWALL, THE GRANTORS OF THE UNITED STATES, FILED THEIR
PETITION BEFORE THE BOARD, SEEKING CONFIRMATION OF THEIR TITLE UNDER
THE CASTRO GRANT OF MAY 20, 1841.  AFTER HEARING EVIDENCE THE BOARD
CONFIRMED THEIR TITLE BY DECREE OF MAY 8, 1855.  UPON APPEAL BY THE
UNITED STATES TO THE DISTRICT COURT FOR NORTHERN CALIFORNIA, THE DECREE
OF THE BOARD WAS AFFIRMED.  APPEAL BY THE GOVERNMENT TO THE SUPREME
COURT OF THE UNITED STATES, ALLOWED BY THE DISTRICT COURT APRIL 1,
1857, WAS DISMISSED BY THE GOVERNMENT IN THE SAME YEAR.  THE DECREE OF
THE DISTRICT COURT WAS NOT SIGNED OR ENTERED UNTIL A DECREE NUNC PRO
TUNC AS OF MARCH 2, 1857, WAS SIGNED, FILED AND ENTERED ON APRIL 15,
1930. 

WHILE THE PROCEEDINGS WERE STILL PENDING BEFORE THE BOARD, THE
CLAIMANTS, BISSELL AND ASPINWALL, ON DECEMBER 15, 1852, EXECUTED A
CONTRACT TO SELL MARE ISLAND TO THE UNITED STATES, AND ON JANUARY 4,
1853, FOR A CONSIDERATION OF $83,491, THEY JOINED IN A DEED TO THE
UNITED STATES, WITHOUT COVENANTS EXCEPT FOR FURTHER ASSURANCE.  THE
DEED PURPORTED TO CONVEY MARE ISLAND, "INCLUDING ALL THE TULE OR LOW
LAND AND MARSH BELONGING TO THE SAME OR WHICH HAS EVER BEEN REPUTED OR
CLAIMED TO BELONG TO THE SAME  ..."  ON FEBRUARY 28, 1853, THEY
EXECUTED A BOND IN FAVOR OF THE UNITED STATES IN THE SUM OF $200,000,
CONDITIONED UPON THE VALIDITY OF THEIR CONTRACT AND THE CONVEYANCE OF
"THE ENTIRE AND ABSOLUTE FEE SIMPLE ESTATE IN THE SAID TRACT OF LAND
KNOWN AS MARE ISLAND."  THE BOND RECITED THAT THEY "SHALL AT ALL TIMES
HEREAFTER INDEMNIFY AND SAVE HARMLESS THE UNITED STATES AGAINST ANY
CLAIM OR TITLE TO THE SAID TRACT CALLED MARE ISLAND AND ITS
APPURTENANCES WHICH MAY BE SET UP BY OR THROUGH ANY PERSON OR PERSONS
CLAIMING UNDER VICTOR CASTRO AND HIS ASSIGNS" AND THAT THEY SHOULD
"ALSO INDEMNIFY AND SAVE HARMLESS THE UNITED STATES AGAINST ANY ADVERSE
CLAIM OR TITLE IN ANY OTHER PERSON OR PERSONS OR BODY POLITIC WHICH MAY
WITHIN TWO YEARS FROM THE DATE HEREOF, BE MADE AND THEREAFTER BE
SUCCESSFULLY ESTABLISHED." 

THE 1857 CALIFORNIA PATENT TO DARLINGTON WAS NOT RECORDED UNTIL JUNE
6, 1879, WHEN ONE SAWYER APPEARS TO HAVE ACQUIRED THE DARLINGTON
CLAIM.  SEE SAWYER V. OSTERHAUS, 212 FED. 765, 767.  THE SECRETARY OF
THE INTERIOR HAVING FOUND THAT THE LANDS IN QUESTION WERE SWAMP LANDS
WITHIN THE SWAMP LANDS ACT OF 1850, THE RESPONDENTS IN 1928 BY MANDAMUS
COMPELLED THE SECRETARY TO CERTIFY THE LANDS FOR PATENT TO THE STATE OF
CALIFORNIA.  THE COURT, IN AWARDING THE RELIEF SOUGHT, AT THE SAME TIME
DECLARED WITH REFERENCE TO THE CONTENTIONS MADE HERE, "THE MERE
ISSUANCE OF PATENT TO CALIFORNIA DETERMINES NO LEGAL OR EQUITABLE RIGHT
OF THE UNITED STATES IN THE PREMISES."  WORK V. UNITED STATES EX REL.
O'DONNELL, 23 F.(2D) 136, 138. 

THE PRESENT SUIT WAS BROUGHT BY THE UNITED STATES IN THE DISTRICT
COURT FOR NORTHERN CALIFORNIA TO QUIET ITS TITLE.  RESPONDENTS, BY
THEIR ANSWER, PUT IN ISSUE THE GOVERNMENT'S OWNERSHIP OF THE LANDS IN
QUESTION AND ASSERTED THEIR TITLE AS TENANTS IN COMMON UNDER THE
DARLINGTON GRANT.  THEY SPECIFICALLY CHALLENGED THE EXISTENCE AND
VALIDITY OF THE CASTRO GRANT, THE VALIDITY OF THE DECREES OF
CONFIRMATION OF THE TITLE OF BISSELL AND ASPINWALL, AND ANY
PRESCRIPTIVE TITLE OF THE UNITED STATES.  THEY PRAYED, AS AFFIRMATIVE
RELIEF, THAT THEIR TITLE BE QUIETED, AND IN SUPPORT OF THEIR PRAYER
ALLEGED THAT THE LANDS IN QUESTION WERE NOT EMBRACED IN THE CASTRO
GRANT AND ALSO WERE SWAMP LANDS WHICH HAD PASSED TO CALIFORNIA UNDER
THE SWAMP LANDS ACT. 

THE TRIAL COURT MADE FINDINGS OF FACT AND REACHED CONCLUSIONS OF LAW
IN FAVOR OF THE UNITED STATES ON ALL THESE ISSUES.  UPON APPEAL, THE
COURT OF APPEALS FOR THE NINTH CIRCUIT REVERSED AND DECREED "THAT THE
UNITED STATES HAS NO TITLE TO THE PATENTED LANDS IN SUIT, AND THAT THE
TITLE IS IN AND QUIETED IN" RESPONDENTS.  91 F.(2D) 14.  THE COURT OF
APPEALS FOUND THAT ALVARADO, THE MEXICAN GOVERNOR OF CALIFORNIA, HAD
EXECUTED THE PURPORTED GRANT OF MARE ISLAND TO CASTRO, INCLUDING THE
LAND IN QUESTION, BUT MADE NO FINDING WITH RESPECT TO THE ADVERSE
POSSESSION OF THE UNITED STATES FOUND BY THE DISTRICT COURT.  IT HELD
THAT THE PAPER SIGNED BY ALVARADO WAS INCOMPETENT EVIDENCE OF THE GRANT
TO CASTRO BECAUSE OF THE LACK OF FILING OR RECORDATION OF THE GRANT IN
THE MEXICAN ARCHIVES, SEE BERREYESA V. UNITED STATES, 154 U.S. 623, AND
THAT THE DECREES OF THE BOARD OF LAND COMMISSIONERS AND OF THE DISTRICT
COURT ON APPEAL FROM THE BOARD, CONFIRMING THE CASTRO TITLE, WERE NULL
AND VOID AND WORTHLESS AS EVIDENCE BECAUSE THE UNITED STATES HAD
PURCHASED THE INTEREST OF THE CLAIMANTS BISSELL AND ASPINWALL WHILE THE
PROCEEDINGS WERE PENDING BEFORE THE BOARD.  IT CHARACTERIZED THE
PROCEEDING AS COLLUSIVE AND THE ACTION OF THE UNITED STATES IN
ACQUIRING TITLE DURING ITS PENDENCY AS BREACH OF A TRUST DUTY ASSUMED
UNDER THE SWAMP LANDS ACT TO CONVEY SWAMP LANDS TO CALIFORNIA, AND AS
IN EFFECT A FRAUD UPON THE STATE.  IT REJECTED THE CONTENTION OF THE
UNITED STATES THAT THE PENDING BOARD PROCEEDING FOR CONFIRMATION OF THE
CASTRO GRANT WITHDREW THE LAND IN QUESTION FROM THE OPERATION OF THE
SWAMP LANDS ACT, WHICH IS THE SOURCE OF CALIFORNIA'S AND RESPONDENTS'
ALLEGED TITLE TO THE LAND, AND HELD THAT THE RESERVATIONS OF THE LAND
MADE BY PRESIDENTIAL PROCLAMATIONS FOR MILITARY AND NAVAL PURPOSES WERE
INEFFECTIVE, BECAUSE CALIFORNIA HAD PREVIOUSLY ACQUIRED AN INCHOATE
TITLE UNDER THE SWAMP LANDS ACT. 

RESPONDENTS RENEW HERE THE CONTENTION MADE BELOW, BASED ON AN
ELABORATE REVIEW OF THE EVIDENCE, THAT THE SWAMP OR OVERFLOWED LANDS IN
QUESTION WERE BELOW HIGH TIDE AND WERE NOT WITHIN THE EXTERIOR
BOUNDARIES OF MARE ISLAND AS IT WAS KNOWN AT THE TIME OF THE CASTRO
GRANT, AND SO WERE NOT INTENDED BY THE GRANTOR TO BE, AND WERE NOT IN
FACT, INCLUDED IN THE DESCRIPTION OF THE GRANT.  RESOLUTION OF THIS
ISSUE TURNS UPON APPRAISAL OF THE EVIDENCE AND THE INFERENCES TO BE
DRAWN FROM IT.  AS BOTH COURTS BELOW HAVE FOUND AGAINST RESPONDENTS ON
THIS ISSUE WE SHALL NOT REEXAMINE THE EVIDENCE HERE.  WE ACCEPT THE
CONCURRENT FINDINGS AS ESTABLISHING THE FACT THAT THE LANDS IN QUESTION
WERE WITHIN THE DESCRIPTION OF THE DEED TO CASTRO.  UNITED STATES V.
STATE INVESTMENT CO., 264 U.S. 206, 211; SHAPPIRIO V. GOLDBERG, 192
U.S. 232; CF. PAGE V. ROGERS, 211 U.S. 575; WASHINGTON SECURITIES CO.
V. UNITED STATES, 234 U.S. 76; NATIONAL BANK V. SHACKLEFORD, 239 U.S.
81; RISTY V. CHICAGO, R.I. & P. RY. CO., 270 U.S. 378. 

NOR IS THE FACT THAT A PATENT HAS ISSUED TO CALIFORNIA, IN OBEDIENCE
TO THE JUDGMENT IN THE MANDAMUS PROCEEDING BROUGHT BY RESPONDENTS IN
WORK V. UNITED STATES EX REL. O'DONNELL, SUPRA, DECISIVE OF ANY ISSUE
PRESENTED HERE.  UPON THE SECRETARY'S APPROVAL OF THE SURVEY OF THE
LAND IN QUESTION BY THE UNITED STATES SURVEYOR GENERAL FOR THE STATE OF
CALIFORNIA, SHOWING THE LANDS TO BE SWAMP AND OVERFLOWED AT THE DATE OF
THE SWAMP LANDS ACT, AND THE DETERMINATION BY THE SECRETARY THAT THE
LANDS IN QUESTION WERE THEN SWAMP AND OVERFLOWED, IT BECAME HIS DUTY
UNDER THE SWAMP LANDS ACT, AND UNDER THE ACT OF CONGRESS OF JULY 23,
1866, 14 STAT. 218, TO CERTIFY THE LANDS FOR PATENT TO THE STATE.  SEE
TUBBS V. WILHOIT, 138 U.S. 134.  BUT THE ADJUDICATION IN MANDAMUS THAT
IT WAS THE DUTY OF THE SECRETARY TO ISSUE THE PATENT UNDER THESE ACTS,
AND THE ISSUANCE OF IT, DETERMINED NO LEGAL OR EQUITABLE RIGHT OF THE
UNITED STATES IN THE PREMISES.  IT REMAINS OPEN TO THE UNITED STATES IN
THIS OR ANY OTHER APPROPRIATE PROCEEDING, TO SHOW THAT THE LANDS DID
NOT PASS UNDER THE SWAMP LANDS ACT.  UNITED STATES V. SCHURZ, 102 U.S.
378, 404; SMELTING CO. V. KEMP, 104 U.S. 636, 641, 646; UNITED STATES
V. CONWAY, 175 U.S. 60, 68, AND CASES CITED; SEE WORK V. UNITED STATES
EX REL. O'DONNELL, SUPRA, 137, 138. 

WE ACCORDINGLY DIRECT OUR ATTENTION TO THE QUESTION, DEEMED PIVOTAL
BELOW, WHETHER, AS THE COURT OF APPEALS HELD, THE CONFIRMATION OF THE
TITLE OF BISSELL AND ASPINWALL UNDER THE CASTRO GRANT BY THE BOARD OF
LAND COMMISSIONERS WAS INVALID, SO THAT THE UNITED STATES NEITHER
RESERVED NOR ACQUIRED A TITLE VALID AS AGAINST THE STATE OF CALIFORNIA
AND RESPONDENTS WHO CLAIM UNDER HER.  IN ANSWERING, IT WILL BE AN AID
TO ADEQUATE UNDERSTANDING OF THE POINTS IN ISSUE TO CONSIDER FIRST THE
EFFECT OF THE CONFIRMATION BY THE BOARD, WITHOUT REFERENCE TO THE
ALLEGED COLLUSION AND FRAUDULENT ACTION OF THE UNITED STATES OR ANY OF
ITS OFFICERS. 

THE SWAMP LANDS ACT OF 1850 WAS EFFECTIVE TO TRANSFER AN INTEREST IN
THE LANDS DESCRIBED IN THE ACT, ONLY SO FAR AS THEY WERE PART OF THE
PUBLIC DOMAIN OF THE UNITED STATES AND THUS SUBJECT TO THE DISPOSAL OF
CONGRESS.  THE ACT IN TERMS PURPORTED TO GRANT TO THE SEVERAL STATES
ALL SWAMP AND OVERFLOWED LANDS LOCATED WITHIN THEIR RESPECTIVE
BOUNDARIES "WHICH SHALL REMAIN UNSOLD AT THE PASSAGE OF THIS ACT." 
ACCURATE LIST AND PLATS" OF THE LANDS DESCRIBED BY THE ACT AND TO
"CAUSE A PATENT TO BE ISSUED TO THE STATE THEREFOR."  THE EFFECT OF
THESE PROVISIONS WAS TO INVEST THE STATE IN PRAESENTI WITH AN INCHOATE
TITLE TO THOSE LANDS FALLING WITHIN THE DESCRIPTION OF THE ACT, TO BE
PERFECTED AS OF THE DATE OF THE ACT WHEN THE LAND SHOULD BE IDENTIFIED
AND THE PATENT ISSUED AS PROVIDED BY SEC. 2.  WRIGHT V. ROSEBERRY, 121
U.S. 488; UNITED STATES V. MINNESOTA, 270 U.S. 181, 202-203.  BY ITS
TERMS THE SWAMP LANDS ACT DID NOT INCLUDE SWAMP LANDS WHICH THE
GOVERNMENT HAD SOLD, AND IT COULD NOT INCLUDE LANDS WHICH THE
GOVERNMENT HAD NOT ACQUIRED OR FREE ANY OF THEM OF OBLIGATIONS TO WHICH
THEY WERE SUBJECT WHEN THE ACT WAS PASSED.  UNITED STATES V. MINNESOTA,
SUPRA, 206. 

IT IS A FAMILIAR PRINCIPLE OF PUBLIC LAND LAW THAT STATUTES PROVIDING
GENERALLY FOR DISPOSAL OF THE PUBLIC DOMAIN ARE INAPPLICABLE TO LANDS
WHICH ARE NOT UNQUALIFIEDLY SUBJECT TO SALE AND DISPOSITION BECAUSE
THEY HAVE BEEN APPROPRIATED TO SOME OTHER PURPOSE.  WILCOX V. JACKSON,
13 PET. 498, 513; MISSOURI, K. & T. RY. CO. V. ROBERTS, 152 U.S. 114,
119; SCOTT V. CAREW, 196 U.S. 100.  THIS HAS BEEN HELD TO BE THE CASE
EVEN THOUGH THE APPROPRIATION BE AFTERWARDS SET ASIDE.  LEAVENWORTH, L.
& G.R. CO. V. UNITED STATES, 92 U.S. 733, 741, 745; NEWHALL V. SANGER,
92 U.S. 761.  THE GENERAL WORDS OF THE GRANTING ACT ARE TO BE READ AS
SUBJECT TO SUCH EXCEPTION.  SCOTT V. CAREW, SUPRA, 111, 112; LOUISIANA
V. GARFIELD, 211 U.S. 70, 77; UNITED STATES V. MINNESOTA, SUPRA, 206. 

SWAMP LANDS IN CALIFORNIA, BEING A PART OF THE TERRITORY ANNEXED BY
THE TREATY OF GUADALUPE HIDALGO, WERE SUBJECT TO ALL OBLIGATIONS
IMPOSED UPON THE UNITED STATES WITH RESPECT TO THEM UNDER THE
PRINCIPLES OF INTERNATIONAL LAW BY REASON OF THE ANNEXATION, AND BY ITS
TREATY OBLIGATIONS.  FN2  ARTICLE 8 OF THE TREATY STIPULATED THAT
MEXICANS THEN ESTABLISHED IN THE ANNEXED TERRITORY SHOULD RETAIN THEIR
PROPERTY WITHIN THAT AREA, AND THAT PROPERTY BELONGING TO MEXICANS NOT
ESTABLISHED THERE SHOULD BE RESPECTED.  THE PROTOCOL OF MAY 26, 1848,
INTERPRETATIVE OF THE TREATY, WHICH PRECEDED THE EXCHANGE OF
RATIFICATIONS ON MAY 30, 1848, DECLARED THAT THE GRANTS OF LAND MADE BY
MEXICO IN THE CEDED TERRITORY "PRESERVE THE LEGAL VALUE WHICH THEY MAY
POSSESS, AND THE GRANTEES MAY CAUSE THEIR LEGITIMATE (TITLES) TO BE
ACKNOWLEDGED BEFORE THE AMERICAN TRIBUNALS," AND THAT "CONFORMABLY TO
THE LAW OF THE UNITED STATES, LEGITIMATE TITLES TO EVERY DESCRIPTION OF
PROPERTY, PERSONAL AND REAL, EXISTING IN THE CEDED TERRITORIES ARE
THOSE WHICH WERE LEGITIMATE TITLES UNDER THE MEXICAN LAW IN CALIFORNIA
...  UP TO THE 13TH OF MAY, 1846  ..."  61ST CONG., 1ST SESS., SEN.
DOC. NO. 357, PP. 1119-1120. 

THE OBLIGATIONS THUS ASSUMED BY THE UNITED STATES ANTEDATED THE SWAMP
LANDS ACT AND WERE SUPERIOR TO ANY RIGHTS DERIVED FROM THE UNITED
STATES UNDER THAT ACT.  THE OBLIGATIONS WERE POLITICAL IN CHARACTER, TO
BE DISCHARGED IN SUCH MANNER AND UPON SUCH TERMS AS THE UNITED STATES
MIGHT DEEM EXPEDIENT IN CONFORMITY TO ITS TREATY OBLIGATIONS.  BEARD V.
FEDERY, 3 WALL.  478; GRISAR V. MCDOWELL, 6 WALL.  363, 379; SAN
FRANCISCO V. LEROY, 138 U.S. 656; KNIGHT V. UNITED STATES LAND ASSN.,
142 U.S. 161, 183, 184.  WHILE THE TREATY PROVIDED THAT THE CLAIMANTS
UNDER MEXICAN GRANTS MIGHT CAUSE THEIR TITLES TO BE ACKNOWLEDGED BEFORE
AMERICAN TRIBUNALS, IT WAS SILENT AS TO THE MODE OF SELECTION OR
CREATION OF SUCH TRIBUNALS.  THE UNITED STATES WAS LEFT FREE TO PROVIDE
FOR THEM IN ITS OWN WAY.  CF. UNITED STATES V. FERREIRA, 13 HOW.  40,
45.  IT COULD RELEGATE ALL THE MULTITUDE OF CLAIMS UNDER THE MEXICAN
GRANTS TO THE ORDINARY PROCEDURE OF COURTS WITH THE INEVITABLE DELAYS
AND CONFUSION AFFECTING LAND TITLES IN THE VAST ANNEXED AREA.  SEE
BEARD V. FEDERY, SUPRA, 493.  IT COULD SET UP AN ADMINISTRATIVE
TRIBUNAL ACTING BY A MORE SUMMARY PROCEDURE  FN3  DESIGNED TO ESTABLISH
WITH FINALITY THE STATUS OF ALL THE MEXICAN GRANTS AS OF THE DATE OF
ANNEXATION.  IT CHOSE THE LATTER COURSE BY THE CREATION OF THE BOARD OF
LAND COMMISSIONERS, BY THE ACT OF MARCH 3, 1851. 

UNDER THAT ACT THE GENERAL LAND OFFICE WAS REQUIRED TO ISSUE A PATENT
FOR ALL CLAIMS FINALLY CONFIRMED "BY THE SAID COMMISSIONERS, OR BY THE
SAID DISTRICT OR SUPREME COURT."  THE ACT DECLARED THAT FINAL DECISION
OF THE BOARD, OR THE DISTRICT OR THE SUPREME COURT SHOULD "BE
CONCLUSIVE BETWEEN THE UNITED STATES AND THE SAID CLAIMANTS ONLY, AND
SHALL NOT AFFECT THE INTERESTS OF THIRD PERSONS."  LANDS, THE CLAIM FOR
WHICH SHOULD BE FINALLY REJECTED, AND LANDS, CLAIMS TO WHICH SHOULD NOT
BE PRESENTED TO THE BOARD WITHIN TWO YEARS OF THE DATE OF THE ACT WERE
TO BE "DEEMED, HELD, AND CONSIDERED AS PART OF THE PUBLIC DOMAIN." 

THE PRIMARY PURPOSE OF THE MEXICAN CLAIMS ACT WAS THE PERFORMANCE BY
THE UNITED STATES OF ITS TREATY OBLIGATIONS TO QUIET THE TITLES OF THE
CLAIMANTS UNDER SPANISH AND MEXICAN GRANTS.  BUT A NECESSARY
CONSEQUENCE OF PROCEEDING BEFORE THE COMMISSION, AND ONE INCIDENTAL TO
THE DETERMINATION OF THE VALIDITY OF THE TITLES OF SUCH CLAIMANTS, WAS
A DETERMINATION WHETHER, BY THE CESSION, THE LANDS IN QUESTION HAD
BECOME A PART OF THE PUBLIC DOMAIN OF THE UNITED STATES.  IT IS EVIDENT
THAT THE TREATY OBLIGATIONS TO QUIET THE TITLE OF CLAIMANTS UNDER
MEXICAN GRANTS WOULD BE DEFEATED AND THE MEXICAN CLAIMS ACT WOULD FAIL
OF ITS PURPOSE IF THE FINALITY OF THE BOARD'S CONFIRMATION OF CLAIMS
UNDER MEXICAN GRANTS COULD BE CHALLENGED BY PERSONS CLAIMING UNDER
GRANTS OF PUBLIC LANDS BY THE UNITED STATES.  FOR THAT REASON IT HAS
BEEN CONSISTENTLY HELD THAT CLAIMANTS UNDER THE UNITED STATES, BY
VIRTUE OF STATUTES DISPOSING OF ITS PUBLIC LANDS IN CALIFORNIA, ARE NOT
"THIRD PERSONS" WITHIN THE MEANING OF THE MEXICAN CLAIMS ACT, AND THAT
CONFIRMATION UNDER THAT ACT OF CLAIMS UNDER MEXICAN GRANTS IS
CONCLUSIVE UPON ALL THOSE CLAIMING UNDER THE UNITED STATES.  BEARD V.
FEDERY, SUPRA, 493; MORE V. STEINBACH, 127 U.S. 70; SAN FRANCISCO V.
LEROY, SUPRA; KNIGHT V. UNITED STATES LAND ASSN., SUPRA, 184; WARD V.
MULFORD, 32 CAL. 365, 370; PEOPLE V. SAN FRANCISCO, 75 CAL. 388, 400;
17 PAC. 522; CF. UNITED STATES V. CORONADO BEACH CO., 255 U.S. 472,
488.  SUCH IS THE EFFECT OF CONFIRMATION BY THE BOARD OF TITLES SET UP
UNDER MEXICAN GRANTS, UPON CLAIMANTS UNDER THE SWAMP LANDS ACT TO LANDS
IN THE ANNEXED TERRITORY.  THAT THE SWAMP LANDS ACT ANTEDATED THE
MEXICAN CLAIMS ACT AND THE CONFIRMATION OF TITLES UNDER IT, IS
IMMATERIAL; FOR THOSE CLAIMING UNDER THE SWAMP LANDS ACT TOOK CUM ONERE
- SUBJECT TO THE TREATY OBLIGATIONS OF THE UNITED STATES AND WHATEVER
PROCEDURE THE UNITED STATES MIGHT ADOPT IN PERFORMANCE OF THOSE
OBLIGATIONS FOR THE QUIETING OF TITLES UNDER MEXICAN GRANTS. 
CONFIRMATION WHEN MADE WAS AS EFFECTIVE AND CONCLUSIVE UPON ALL PATENTS
UNDER THE SWAMP LANDS ACT AS IF MADE AT THE DATE OF THE TREATY.  SAN
FRANCISCO V. LEROY, SUPRA, 670; KNIGHT V. UNITED STATES LAND ASSN.,
SUPRA, 185; WARD V. MULFORD, SUPRA, 370. 

WE DO NOT STOP TO DISCUSS THE POINT, MUCH ARGUED AT THE BAR AND IN
THE BRIEFS, WHETHER THE DECREE OF THE DISTRICT COURT AFFIRMING THE
BOARD'S DECREE OF CONFIRMATION WAS VOID OR OTHERWISE DEFECTIVE BECAUSE
NOT SIGNED AT OR ABOUT THE TIME IT WAS RENDERED.  SEE MITCHELL V.
OVERMAN, 103 U.S. 62, 64-65; IN RE WIGHT, 134 U.S. 136; UNITED STATES
V. STOLLAR, 180 FED. 910, 912, 913; INTERNATIONAL HARVESTER CO. V.
CARLSON, 217 FED. 736, 738.  IF IT BE TAKEN THAT THE GOVERNMENT HAS
FAILED TO PROSECUTE ITS APPEAL TO FINAL DECREE IN THE DISTRICT COURT,
IT IS ENOUGH THAT THE DECREE OF THE BOARD HAS NEVER BEEN SET ASIDE OR
OTHERWISE DISTURBED.  IF THE APPEAL WAS NOT STILL PENDING WHEN THE
DECREE OF THE DISTRICT COURT WAS ENTERED NUNC PRO TUNC IN 1930, THE
DECREE OF THE BOARD REMAINS AS EFFECTIVE AS IF NO APPEAL HAD BEEN
TAKEN, AND HAS BECOME FINAL AND CONCLUSIVE WITHIN THE PROVISIONS OF THE
ACT.  BEARD V. FEDERY, SUPRA; UNITED STATES V. RITCHIE, 17 HOW.  525. 

APART FROM THE CONSIDERATIONS GROWING OUT OF THE PURCHASE BY THE
GOVERNMENT OF THE BISSELL AND ASPINWALL TITLE, NOW TO BE DISCUSSED, THE
DECREE OF THE BOARD, IF NOT THAT OF THE DISTRICT COURT, MUST BE TAKEN
AS CONCLUSIVE ON RESPONDENTS, AND AS TO THEM IT IS NOT OPEN TO THIS OR
ANY OTHER COURT TO REEXAMINE THE EXISTENCE OR VALIDITY OF THE CASTRO
GRANT. 

THE HOLDING OF THE COURT BELOW THAT THE ACQUISITION BY THE UNITED
STATES OF THE TITLE OF BISSELL AND ASPINWALL, WHILE THEIR CLAIM WAS
PENDING BEFORE THE BOARD OF LAND COMMISSIONERS, INVOLVED A BREACH OF
EQUITABLE DUTY TO CALIFORNIA OF SUCH CHARACTER AS TO PRECLUDE THE
GOVERNMENT FROM TAKING ANY ADVANTAGE OF THE BOARD'S CONFIRMATION OF THE
CASTRO GRANT, IS PREDICATED UPON THE ASSUMPTION THAT BY VIRTUE OF THE
SWAMP LANDS ACT THE UNITED STATES BECAME IN EFFECT THE TRUSTEE OF THE
LANDS IN QUESTION FOR THE BENEFIT OF THE STATE AND ITS SUCCESSORS IN
INTEREST.  IT IS TRUE THAT IN A LOOSE AND GENERAL SENSE THE UNITED
STATES, PENDING ISSUANCE OF A PATENT UNDER OTHER LAND GRANT ACTS, HAS
BEEN REFERRED TO AS A TRUSTEE OF LANDS TO BE PATENTED, CORNELIUS V.
KESSEL, 128 U.S. 456, 460-1; BENSON MINING & SMELTING CO. V. ALTA
MINING & SMELTING CO., 145 U.S. 428, 432; ORCHARD V. ALEXANDER, 157
U.S. 372, 383; UNITED STATES V. ANDERSON, 194 U.S. 394; KNAPP V.
ALEXANDER-EDGAR LUMBER CO., 237 U.S. 162; PAYNE V. NEW MEXICO, 255 U.S.
367, AND THE RIGHT OF THE STATE, BEFORE PATENT, TO LANDS WITHIN THE
PURVIEW OF THE SWAMP LANDS ACT HAS BEEN REFERRED TO AS "EQUITABLE." 
MICHIGAN LAND & LUMBER CO. V. RUST, 168 U.S. 589, 591; BROWN V.
HITCHCOCK, 173 U.S. 473, 476. 

EVEN WHERE THE RIGHT OF THE STATE UNDER THE SWAMP LANDS ACT IS
UNQUALIFIED, IT WOULD PERHAPS BE MORE ACCURATE TO SAY THAT THE UNITED
STATES IS NO MORE THAN A DONOR GRANTING WITHOUT WARRANTY THOSE LANDS
FALLING WITHIN THE DESCRIPTION AND THE PURVIEW OF THE STATUTE, SUBJECT
TO A DUTY IMPOSED BY THE STATUTE, TO PERFECT BY SURVEY AND PATENT SUCH
INCHOATE TITLE AS IT HAD CONVEYED TO THE STATE.  BEYOND THIS THE UNITED
STATES, BY THE ENACTMENT OF THE SWAMP LANDS ACT, ASSUMED NO DUTY.  IT
GAVE NO WARRANTY OF TITLE.  IT ASSUMED NO OBLIGATIONS TO THE GRANTEE
SUBJECTING ITSELF TO OTHER CLAIMS OF EQUITABLE DUTY.  SALE OF THE LANDS
TO OTHERS DOES NOT MAKE IT ACCOUNTABLE AS A TRUSTEE OF THE PROCEEDS. 
UNITED STATES V. LOUISIANA, 127 U.S. 182, 191.  IN ANY CASE, THE DUTY
ASSUMED BY THE UNITED STATES UNDER THE TREATY AND THE CONCOMITANT POWER
THUS RESERVED TO IT, WAS INCONSISTENT WITH THE ASSUMPTION OF TRUST
DUTIES TOWARD THE STATE BY REASON OF THE SWAMP LANDS ACT.  IN THE
EXECUTION OF THAT DUTY IT WAS FREE TO ADOPT ANY MODE OF PROCEDURE IT
SAW FIT FOR ADJUDICATION OF THE TITLES OF CLAIMANTS UNDER MEXICAN
GRANTS.  EVEN AFTER THE SUBMISSION OF THEIR CLAIMS TO THE BOARD OF LAND
COMMISSIONERS IT COULD WITHDRAW THEM FROM DECISION OF THE BOARD AND
COURTS AND ADJUDICATE THEM BY CONGRESSIONAL ACTION.  GRISAR V.
MCDOWELL, SUPRA, 379.  THE TENTATIVE RECOGNITION BY THE TREATY OF THE
RIGHTS OF THE MEXICAN GRANTEES AND THE FULL LATITUDE WHICH THE
GOVERNMENT HAD RESERVED TO ITSELF IN THE CHOICE OF MODES OF DISPOSITION
OF THOSE CLAIMS, WERE INCOMPATIBLE WITH THE ASSUMPTION OF TRUST DUTIES
BY THE GOVERNMENT WITH RESPECT TO THEM PENDING THEIR FINAL
DISPOSITION.  THERE IS THUS A COMPLETE ABSENCE OF SUPPORT FOR THE
SUPPOSED ANALOGY BETWEEN A SOVEREIGN GOVERNMENT, IN SUCH CIRCUMSTANCES,
AND A PRIVATE GRANTOR WHO HAS CONVEYED WITH WARRANTY OF TITLE OR WHO
HAS UNDERTAKEN BY EXECUTORY CONTRACT TO CONVEY TITLE WHICH HE POSSESSES
OR SUBSEQUENTLY ACQUIRES AND WHO, BECAUSE HE HAS THUS ASSUMED EQUITABLE
DUTIES, IS SOMETIMES SPOKEN OF AS A TRUSTEE. 

THE MEXICAN CLAIMS ACT ITSELF NEITHER IMPOSED NOR RECOGNIZED SUCH
DUTIES.  IN AUTHORIZING THE BOARD TO PASS ON CLAIMS PRESENTED TO IT
UPON THE EVIDENCE ADDUCED BY THE CLAIMANT AND THE UNITED STATES, IT
REQUIRED NO NOTICE TO BE GIVEN TO ANY THIRD PARTY.  IT GAVE TO THE
GOVERNMENT THE RIGHT TO REPRESENTATION BY AN AGENT AND MADE IT HIS DUTY
TO COLLECT TESTIMONY "IN BEHALF OF THE UNITED STATES," AND TO ATTEND
MEETINGS OF THE BOARD.  BUT THE ROLE OF THE GOVERNMENT WAS NOT THAT OF
A LITIGANT.  IT WAS RATHER, AS THE ACT ITSELF DECLARED, SUPERVISORY:
"TO SUPERINTEND THE INTERESTS OF THE UNITED STATES" IN THE PERFORMANCE,
THROUGH AN ADMINISTRATIVE AGENCY, OF ITS TREATY OBLIGATION TO ASCERTAIN
FOR THE MEXICAN CLAIMANTS, AND FOR ITSELF, WHAT LANDS HAD BEEN
WITHDRAWN FROM THE PUBLIC DOMAIN BY THE MEXICAN GRANTS.  "THE UNITED
STATES DID NOT APPEAR IN THE COURTS AS A CONTENTIOUS LITIGANT; BUT AS A
GREAT NATION, ACKNOWLEDGING THEIR OBLIGATION TO RECOGNISE AS VALID
EVERY AUTHENTIC TITLE, AND SOLICITING EXACT INFORMATION TO DIRECT THEIR
EXECUTIVE GOVERNMENT TO COMPLY WITH THAT OBLIGATION."  UNITED STATES V.
FOSSATT, 21 HOW.  445, 450, 451. 

AT NO STAGE OF THE GOVERNMENT'S DEALING WITH THE TITLES UNDER MEXICAN
GRANTS, EITHER UNDER THE SWAMP LANDS ACT OR UNDER THE MEXICAN CLAIMS
ACT, CAN WE FIND THE ASSUMPTION ON THE PART OF THE GOVERNMENT OF ANY
DUTY TOWARD THE STATE WITH RESPECT TO THE SWAMP AND OVERFLOWED LANDS
OTHER THAN THAT SPECIFIED IN THE SWAMP LANDS ACT ITSELF, AND THAT DUTY
WAS FULLY PERFORMED WHEN IT ISSUED TO THE STATE ITS PATENT TO THE LANDS
IN QUESTION IN RESPONSE TO THE MANDATE IN WORK V. UNITED STATES EX REL.
O'DONNELL, SUPRA. 

WE TURN NOW TO THE CONSIDERATION OF THE CIRCUMSTANCES RELIED ON TO
ESTABLISH THE PROPOSITION THAT THE TITLE NOW ASSERTED BY THE UNITED
STATES WAS ACQUIRED AS THE RESULT OF A PURPOSEFUL OR CONSCIOUS SCHEME
TO DEPRIVE THE STATE OF POSSIBLE BENEFITS UNDER THE SWAMP LANDS ACT BY
MEANS OF COLLUSIVE PROCEEDINGS BEFORE THE BOARD OF LAND COMMISSIONERS
AND THE DISTRICT COURT.  AT THE OUTSET IT IS TO BE NOTED THAT THIS
CONTENTION FIRST EMERGES IN THIS CASE IN THE OPINION OF THE COURT OF
APPEALS BELOW.  THERE HAD PREVIOUSLY BEEN NO SUGGESTION OF SUCH A
CONTENTION IN ANY PLEADING OR ASSIGNMENT OF ERROR, NOR HAD THE
GOVERNMENT OR ITS OFFICERS BEEN CHARGED WITH ANY FRAUD, COLLUSION,
CONCEALMENT, OR BAD FAITH.  THE RESPONDENTS, IN SEEKING AFFIRMATIVE
RELIEF, MADE NO ASSERTION OF THAT CHARACTER.  IN SUCH A STATE OF THE
RECORD, DERELICTION OF OFFICERS OF THE UNITED STATES IN THE PERFORMANCE
OF OFFICIAL DUTY IS NOT LIGHTLY TO BE INFERRED SEVENTY-FIVE YEARS AFTER
THE EVENT, AND A COURT SHOULD BE SLOW TO FIND WHAT WOULD BE IN EFFECT A
FRAUDULENT CONSPIRACY ON THEIR PART TO DEPRIVE THE STATE OF THE
BENEFITS OF THE SWAMP LANDS ACT. 

UPON THE SELECTION OF MARE ISLAND AS A NAVY YARD BY THE SECRETARY OF
THE NAVY, MR. CRITTENDEN, THEN ATTORNEY GENERAL, HAD GIVEN AN OPINION
TO THE EFFECT THAT MARE ISLAND WAS A PART OF THE PUBLIC DOMAIN SUBJECT
ONLY TO THE CASTRO GRANT, THE CLAIM UNDER WHICH WAS THEN PENDING BEFORE
THE BOARD OF LAND COMMISSIONERS.  HE CONCLUDED THAT THERE WAS
SUFFICIENT BASIS FOR THE CLAIM TO JUSTIFY PURCHASE OF THE CLAIMANT'S
TITLE, WHICH HE RECOMMENDED AS A PROTECTION OF THE INTERESTS OF THE
GOVERNMENT.  SEE OPINION OF ATTORNEY GENERAL CUSHING GIVEN TO THE
SECRETARY OF THE NAVY, APRIL 9, 1853.  8 OP. ATTY. GEN. 422.  THEN
FOLLOWED THE PURCHASE FROM BISSELL AND ASPINWALL, IN THE CIRCUMSTANCES
ALREADY DETAILED.  THOSE CIRCUMSTANCES JUSTIFY NO INFERENCE THAT THE
DEFENSE OF THEIR CLAIM WAS DISHONEST.  THE GOVERNMENT HAD FAR MORE TO
GAIN THAN TO LOSE BY DEFEATING THE CASTRO GRANT.  AS THE GRANT COVERED
THE ISLAND "IN ALL ITS EXTENT," BOTH UPLAND AND SWAMP, REJECTION OF THE
CLAIM WOULD NOT ONLY HAVE GIVEN TO THE GOVERNMENT A RETURN OF THE
PURCHASE PRICE AND EXPENSES AS GUARANTEED BY ITS BOND FOR TITLE, BUT
WOULD HAVE ESTABLISHED ITS RIGHT TO THE ENTIRE ISLAND AS A PART OF THE
PUBLIC DOMAIN, EXCEPT PERHAPS THE SWAMP LAND.  CF. NEWHALL V. SANGER,
SUPRA.  THE VALIDITY OF THE CASTRO GRANT WAS THE ONLY MATTER WITH
RESPECT TO WHICH THE BOARD COULD RENDER A DECREE WHICH, UNDER THE
PROCEDURE OF THE MEXICAN CLAIMS ACT, COULD BECOME FINAL AND CONCLUSIVE
AS TO THE CLAIMANT AND THE GOVERNMENT.  SO FAR AS APPEARS, EACH WAS AS
MUCH CONCERNED WITH THE DETERMINATION OF THAT QUESTION AFTER AS BEFORE
THE BISSELL AND ASPINWALL DEED AND BOND, FOR ACCORDINGLY AS IT WAS
DECIDED ONE WAY OR THE OTHER, THE ONE OR THE OTHER STOOD TO GAIN AN
AMOUNT EQUAL TO THE PURCHASE PRICE OF THE PROPERTY.  THE REASONABLENESS
OF THE PURCHASE PRICE IS NOT CHALLENGED.  THE ONLY EFFECT OF THE DEED
AND BOND WAS TO PROTECT THE GOVERNMENT AGAINST LOSS OF THE OPPORTUNITY
TO ACQUIRE THE LAND FOR A NAVY YARD IN CASE THE PROPERTY SHOULD BE
DISPOSED OF TO SOME THIRD PERSON PENDING THE BOARD'S DECISION, AND THE
CASTRO GRANT SHOULD BE UPHELD. 

UPON THE OPINION OF ATTORNEY GENERAL CUSHING, ALREADY MENTIONED, THE
COURT OF APPEALS PLACED ITS CHIEF, INDEED ITS ONLY RELIANCE FOR THE
CONCLUSION THAT THERE WAS CONSCIOUS DERELICTION ON THE PART OF THE
GOVERNMENT.  IN THIS OPINION THE ATTORNEY GENERAL SPOKE OF THE
GOVERNMENT'S PURCHASE OF THE BISSELL AND ASPINWALL TITLE AS AN
ACCOMPLISHED FACT, BUT NEVERTHELESS RECOMMENDED THAT THE CLAIM BE
VIGOROUSLY CONTESTED.  THIS IS SAID TO BE SO INCONSISTENT WITH THE
GOVERNMENT'S DISMISSAL OF ITS APPEAL FOUR YEARS LATER AS TO INDICATE A
"PURPOSEFUL SHIFT OF POSITION" TO THE DETRIMENT OF THE STATE, FROM
WHICH BAD FAITH IS TO BE INFERRED.  BUT AN ATTENTIVE READING OF THE
OPINION IN THE LIGHT OF SUBSEQUENT EVENTS REVEALS NO SUCH
INCONSISTENCY.  IN REPUDIATING ANY THOUGHT THAT THE CLAIM SHOULD NOT BE
CONTESTED, HE DECLARED:  "BUT I, AS ATTORNEY GENERAL, IN VIEW OF THE
SPECIAL DUTIES IMPOSED ON ME BY THE ACTS FOR SETTLEMENT OF PRIVATE LAND
CLAIMS IN CALIFORNIA, AND OF MY GENERAL OBLIGATION TO LOOK AFTER THE
RIGHTS OF THE UNITED STATES IN THE PREMISES, CANNOT PURSUE THIS
COURSE.  I MUST NOT ADMIT THAT THE PURCHASE OF THE CASTRO CLAIM BY THE
UNITED STATES OPERATES IN ANY WAY, EITHER BY IMPLICATION OR OTHERWISE,
AS A WAIVER OF THE GENERAL RIGHTS OF THE UNITED STATES IN THE PREMISES,
OR AS AN ASSENT, EITHER EXPRESS OR IMPLIED, TO THE PRETENDED VALIDITY
OF THE GRANT TO CASTRO."  HE POINTED OUT THAT THE CLAIM "INVOLVES
DIFFICULT AND IMPORTANT QUESTIONS OF LAW, WHICH THE COMMISSIONERS, TO
BE SURE, HAVE DECIDED IN FAVOR OF THE CLAIMANTS,  FN4  BUT WHICH THE
SUPREME COURT MAY DECIDE OTHERWISE," AND THAT HE FELT BOUND TO PROTECT
THE INTERESTS OF THE UNITED STATES BY AN APPEAL BECAUSE AS A PRECEDENT
THE CASE WOULD AFFECT "MANY MILLIONS WORTH OF LAND IN CALIFORNIA, WHICH
IS OTHERWISE PUBLIC DOMAIN." 

AFTER POINTING OUT THAT THE STATE OF CALIFORNIA RETAINED TITLE TO
TIDE LAND BELOW HIGH WATER MARK, AND THAT THE UNITED STATES COULD NOT
ENJOY THE USE OF MARE ISLAND AS A NAVAL DEPOT WHILE ITS SHORES BELONGED
TO THE STATE, HE CONCLUDED WITH THE RECOMMENDATION THAT "CALIFORNIA BE
INVITED TO RELINQUISH TO THE UNITED STATES WHATEVER CLAIM, IF ANY, SHE
MAY HAVE TO THE SHORES OR THE OVERFLOWED LAND OF MARE ISLAND."  THE
OPINION DISCLOSES THAT HE HAD NO THOUGHT OF DEPRIVING THE STATE OF ANY
RIGHTS WHICH IT MIGHT HAVE UNDER THE SWAMP LANDS ACT FOR IT
AFFIRMATIVELY SHOWS THAT HE WAS OF OPINION (ERRONEOUSLY AS WAS LATER
DECIDED IN BEARD V. FEDERY, SUPRA, AND CASES FOLLOWING IT), THAT NO
RIGHTS OF CALIFORNIA UNDER THE SWAMP LANDS ACT WOULD BE AFFECTED BY THE
DECISIONS OF THE BOARD. 

WITH BUT LITTLE RESEARCH IT BECOMES APPARENT THAT THE IMPORTANT
QUESTIONS OF LAW AFFECTING "MANY MILLIONS WORTH OF LAND IN CALIFORNIA,"
WHICH WERE INVOLVED IN THE BISSELL AND ASPINWALL CLAIM AND WHICH THE
COMMISSIONER HAD ALREADY DECIDED IN OTHER CASES, WERE UNRELATED TO ANY
RIGHTS OF THE STATE UNDER THE SWAMP LANDS ACT, AND WERE IN FACT DECIDED
AGAINST THE GOVERNMENT BY THIS COURT AFTER THE ATTORNEY GENERAL HAD
RENDERED HIS OPINION AND BEFORE THE DISMISSAL OF THE GOVERNMENT'S
APPEAL FROM THE DECREE OF THE DISTRICT COURT IN THE BISSELL AND
ASPINWALL CASE.  FN5  THE OPINION EVIDENCES THE STRONGEST MOTIVES ON
THE GOVERNMENT'S PART TO CONTEST THE BISSELL AND ASPINWALL CLAIM, AND
THE FIRM DETERMINATION TO PROSECUTE THE CONTEST WITH VIGOR.  THE RECORD
OF THE PROCEEDINGS BEFORE THE BOARD PLAINLY SHOWS ADHERENCE TO THIS
PURPOSE.  WITNESSES WERE PRODUCED BY THE GOVERNMENT TO DISCREDIT THE
CASTRO GRANT; THOSE PRODUCED BY THE CLAIMANTS, INCLUDING ALVARADO WHO
TESTIFIED TO HIS EXECUTION OF THE GRANT, WERE SO VIGOROUSLY CROSS
EXAMINED AS TO EXCITE THE BOARD'S "STRONG SUSPICION" AS TO THE
AUTHENTICITY OF THE CASTRO GRANT, WHICH IT NEVERTHELESS SUSTAINED IN
THE LIGHT OF ALL THE EVIDENCE.  ONLY AFTER THE "IMPORTANT QUESTIONS OF
LAW" HAD BEEN DECIDED BY THIS COURT AGAINST THE GOVERNMENT DID IT RELAX
ITS EFFORTS.  ITS CHANGE OF POSITION THEN, THOUGH PURPOSEFUL, CAN
HARDLY BE SAID TO BE EVIDENCE OF BAD PURPOSE. 

THE DEED OF BISSELL AND ASPINWALL TO THE GOVERNMENT WAS RECORDED IN
SOLANO COUNTY, CALIFORNIA, APRIL 18, 1853.  THE OPINION OF ATTORNEY
GENERAL CUSHING WAS IN OCTOBER 3, 1853 TRANSMITTED BY THE SECRETARY OF
THE NAVY TO THE GOVERNOR OF CALIFORNIA WHO SUBMITTED IT TO THE
CALIFORNIA LEGISLATURE JANUARY 4, 1854.  CALIFORNIA SENATE JOURNAL,
1854, 37; APPENDIX, DOC. NO. 4.  BEING THEN FULLY ADVISED BY THAT
OPINION OF THE GOVERNMENT'S PURCHASE OF THE BISSELL AND ASPINWALL CLAIM
AND OF ITS PURPOSE TO PRESS FOR A DETERMINATION OF THE VALIDITY OF THE
CASTRO GRANT BY THE BOARD OF LAND COMMISSIONERS, THE CALIFORNIA
LEGISLATURE BY ACT OF MAY 11, 1854, CAL. STAT. 1854, C. 43, PP. 48-49,
CONSENTED TO THE PURCHASE OF MARE ISLAND FOR THE PURPOSE OF
ESTABLISHING THERE A NAVY YARD AND PROCLAIMED THAT ALL THE LANDS WITHIN
ITS LIMITS WERE TO BE PERPETUALLY FREE OF STATE TAXATION.  IT CEDED TO
THE GOVERNMENT LANDS ON THE ISLAND WHICH ARE NOT HERE INVOLVED, WITH
THE PROVISO THAT THE CONSENT TO THE PURCHASE AND THE CESSION TO THE
GOVERNMENT SHOULD NOT "BE CONSTRUED IN AID OR SUPPORT, DIRECTLY OR
IMPLIEDLY, OF ANY CONVEYANCE OR BOND FOR TITLE TO THE UNITED STATES OF
THE SAME LANDS HERETOFORE MADE, OR WHICH MAY HEREAFTER BE MADE  ...  OR
AS A RECOGNITION ON THE PART OF THE STATE OF CALIFORNIA OF ANY CLAIM,
TITLE OR GRANT HERETOFORE ASSERTED OR SET UP, OR WHICH MAY HEREAFTER BE
ASSERTED OR SET UP BY ANY PERSON OR PERSONS  ..."  THE ONLY BOND FOR
TITLE THEN RELATING TO MARE ISLAND WHICH IS DISCLOSED BY THE RECORD WAS
THAT OF BISSELL AND ASPINWALL, AND THE APPARENT PURPOSE OF THE PROVISO
WAS THAT THE STATE'S CONSENT TO THE PURCHASE SHOULD NOT ENURE TO THE
BENEFIT OF BISSELL AND ASPINWALL OR ANY OTHERS IN LIKE SITUATION, SO AS
TO RELIEVE THEM FROM THE OBLIGATION ON THEIR BOND IN THE EVENT THAT THE
CASTRO GRANT SHOULD BE HELD INVALID BY THE BOARD OF LAND
COMMISSIONERS.  OCCUPATION OF THE ISLAND BY THE UNITED STATES AS A
NAVAL STATION FOLLOWED IN SEPTEMBER, 1854.  THE BOARD RENDERED ITS
DECREE OF CONFIRMATION OF THE CASTRO GRANT MAY 8, 1855.  THE FOLLOWING
MEMORANDUM APPEARS AMONG THE PAPERS IN THE CASE IN THE DISTRICT COURT:
"THE UNITED STATES BEING NOW THE OWNER OF THE TITLES OF APPELLEES, A
CONFIRMATION OF THIS CLAIM ENURES TO THE BENEFIT OF THE GOVERNMENT AND
NO OBJECTION IS THEREFORE MADE TO A DECREE IN FAVOR OF THE VALIDITY OF
THE CLAIM." 

THUS, INSTEAD OF ACTION COVERTLY TAKEN BY THE GOVERNMENT WITH THE
PURPOSE OF DEPRIVING THE STATE OF ANY OF ITS RIGHTS IN THE PREMISES, WE
FIND HIGH OFFICERS OF THE GOVERNMENT PROCLAIMING IN DOCUMENTS SUBMITTED
TO THE GOVERNOR AND LEGISLATURE OF CALIFORNIA THE FACT OF THE
GOVERNMENT'S ACQUISITION OF A CONDITIONAL INTEREST IN THE BISSELL AND
ASPINWALL CLAIM, AND ITS PURPOSE TO SECURE A DETERMINATION OF THE
VALIDITY OF THE GRANT BY THE BOARD OF LAND COMMISSIONERS.  WE SEE THAT,
AFTER THIS FULL DISCLOSURE, THE STATE EXPRESSED CONSENT TO THE PURCHASE
IN SUCH A WAY AS TO SAVE TO THE GOVERNMENT UNIMPAIRED ITS RIGHTS UNDER
THE BISSELL AND ASPINWALL BOND.  ONLY AFTER THE CONFIRMATION OF THE
CASTRO GRANT BY THE BOARD OF LAND COMMISSIONERS, AND ONLY AFTER THE
IMPORTANT QUESTIONS OF LAW ON WHICH THE GOVERNMENT RELIED TO DEFEAT THE
GRANT HAD BEEN DECIDED AGAINST IT BY THIS COURT IN OTHER CASES, DID THE
GOVERNMENT RELINQUISH ITS PURPOSE TO CONTEST THE BISSELL AND ASPINWALL
CLAIM.  WE CAN FIND IN THIS RECORD NO BASIS FOR SAYING THAT THE
CONFIRMATION BY THE BOARD WAS PROCURED OR ALLOWED TO STAND THROUGH ANY
FRAUD, CONCEALMENT, BAD FAITH, OR BREACH OF DUTY TO CALIFORNIA BY THE
GOVERNMENT OR ITS OFFICERS. 

THE CONTENTION THAT THE DECREE OF THE BOARD IS OPEN TO COLLATERAL
ATTACK AS A NULLITY IS THUS REDUCED TO THE ASSERTION THAT, BY REASON OF
THE CONDITIONAL INTEREST OF THE GOVERNMENT UNDER THE BISSELL AND
ASPINWALL DEED AND BOND, THE CONTEST BEFORE THE BOARD MAY HAVE BEEN IN
SOME DEGREE LESS VIGOROUS THAN IT OTHERWISE WOULD HAVE BEEN.  TO THIS
THE ANSWER IS THAT, AS ALREADY SHOWN, THE GOVERNMENT OWED NO DUTY TO
THE STATE TO CONTEST THE CLAIM AND THAT IN ANY CASE THE PROCEEDING
BEFORE THE BOARD WAS NOT ADVERSARY. 

THE BOARD WAS AN ADMINISTRATIVE BODY, CREATED AS THE ACT DECLARES "TO
ASCERTAIN AND SETTLE THE PRIVATE LAND CLAIMS IN THE STATE OF
CALIFORNIA," BY PROCEEDINGS WHICH WERE NOT REQUIRED TO BE
CONTROVERSIAL.  IT WAS BEGUN WITHOUT NOTICE TO ANY OTHER PARTY.  WHILE
THE ATTENDANCE BY THE "AGENT" OF THE UNIED STATES WAS REQUIRED IN ORDER
THAT HE MIGHT "SUPERINTEND THE INTERESTS OF THE UNITED STATES," IT DID
NOT APPEAR IN THE ROLE OF LITIGANT.  UNITED STATES V. FOSSATT, SUPRA.
THE BOARD WAS AN ADMINISTRATIVE BODY, NOT A COURT.  UNITED STATES V.
RITCHIE, SUPRA; UNITED STATES V. FOSSATT, SUPRA.  REVIEW OF ITS
PROCEEDINGS BY DIRECT APPEAL WAS NOT WITHIN THE JUDICIAL POWER, AND
REEXAMINATION OF ITS DETERMINATIONS BY THE DISTRICT COURT AND THE
UNITED STATES SUPREME COURT WAS SUSTAINED ONLY ON THE THEORY THAT THE
APPEAL TO THE DISTRICT COURT WAS THE INITIATION OF A SUIT TO SET ASIDE
THE DETERMINATION OF THE BOARD, IN THE COURSE OF WHICH SUIT FURTHER
EVIDENCE MIGHT BE TAKEN.  UNITED STATES V. RITCHIE, SUPRA, 533, 534;
GRISAR V. MCDOWELL, SUPRA, 375.  SINCE THE STATUTE UNDER WHICH THE
BOARD WAS CREATED DID NOT REQUIRE ADVERSARY PROCEEDINGS, THE VALIDITY
OF ITS ADMINISTRATIVE DETERMINATION WAS UNAFFECTED BY THEIR ABSENCE. 
THE DECREE OF THE BOARD, WHICH STANDS UNDISTURBED BY ANY SUBSEQUENT
PROCEEDINGS IN THE COURTS, CANNOT BE DISREGARDED AS A NULLITY. 

WE CONCLUDE THAT THE ACQUISITION OF THE INTEREST IN THE BISSELL AND
ASPINWALL TITLE BY THE UNITED STATES DID NOT UNDERMINE THAT
DETERMINATION; THAT THE PROCEEDINGS IN CONNECTION WITH THEIR CLAIM
BEFORE THE BOARD OF LAND COMMISSIONERS WERE FREE FROM FRAUD, BAD FAITH,
CONCEALMENT OR OVERREACHING, AND OF ANY BREACH OF DUTY TO CALIFORNIA ON
THE PART OF THE UNITED STATES OR ITS OFFICERS; AND THAT THE DECREE OF
THE BOARD STANDS UNDISTURBED AS A VALID ADMINISTRATIVE DETERMINATION OF
THE VALIDITY OF THE CASTRO GRANT AND, AS SUCH, IS CONCLUSIVE UPON THE
STATE OF CALIFORNIA AND ON RESPONDENTS WHO CLAIM UNDER HER.  THE DECREE
BELOW MUST ACCORDINGLY BE REVERSED. 

FN1 PROCLAMATION TO THE INHABITANTS OF CALIFORNIA, JULY 7, 1846, AT
MONTEREY, BY COMMODORE JOHN D. SLOAT, 29TH CONG., 2D SESS., HOUSE DOC.
NO. 4, PP. 644-645; PROCLAMATION, AUGUST 17, 1846, AT CIUDAD DE LOS
ANGELES, BY COMMODORE AND GOVERNOR R. F. STOCKTON, ID., PP. 669-670. 

FN2  THE OBLIGATION IMPOSED BY THE PRINCIPLES OF INTERNATIONAL LAW TO
RESPECT PROPERTY RIGHTS WITHIN ANNEXED TERRITORY IS SUBSTANTIALLY THAT
RECOGNIZED BY THE TREATY, SOULARD V. UNITED STATES, 4 PET. 511; UNITED
STATES V. PERCHEMAN, 7 PET. 51, 87; STROTHER V. LUCAS, 12 PET. 410,
436; UNITED STATES V. REPENTIGNY, 5 WALL.  211, 260; KNIGHT V. UNITED
STATES LAND ASSN., 142 U.S. 161, 184, AND COMPREHENDS NOT ONLY FORMAL
GRANTS "BUT ALSO ANY CONCESSION, WARRANT, ORDER OR PERMISSION TO
SURVEY, POSSESS OR SETTLE, WHETHER EVIDENCED BY WRITING OR PAROL, OR
PRESUMED FROM POSSESSION."  STROTHER V. LUCAS, SUPRA, 436; SEE SOULARD
V. UNITED STATES, SUPRA. 

FN3  AS TO THE NUMBER OF THE CLAIMS AND THE CELERITY WITH WHICH THEY
WERE DISPOSED OF, SEE 8 OP. ATTY. GEN. 515. 

FN4  THE REFERENCE IS OBVIOUSLY TO CLAIMANTS OTHER THAN BISSELL AND
ASPINWALL, FOR AT THAT TIME THERE HAD BEEN NO HEARINGS BY THE BOARD ON
THE CLAIM OF THE LATTER AND THE BOARD HAD RENDERED NO DECISION WITH
RESPECT TO IT. 

FN5  OF THE "DIFFICULT AND IMPORTANT QUESTIONS OF LAW" WHICH WERE
SAID IN ATTORNEY GENERAL CUSHING'S OPINION TO THE SECRETARY OF THE NAVY
TO BE INVOLVED IN THE CLAIM OF BISSELL AND ASPINWALL, ONE, MENTIONED IN
THE LETTER ITSELF, WAS WHETHER A GRANT BY A MEXICAN GOVERNOR WAS VALID
IN THE ABSENCE OF APPROVAL BY THE "DEPARTMENTAL DEPUTATION."  THIS
QUESTION WAS ANSWERED IN THE AFFIRMATIVE BY THE BOARD, DECEMBER 27,
1852, IN PASSING ON THE FREMONT CLAIM; JANUARY 5, 1853, IN THE LARKIN
CASE; AND IN PRELIMINARY OPINIONS IN THE CERVANTES AND READING CASES,
RENDERED AUGUST 3, 1852, AND AUGUST 9, 1852, RESPECTIVELY.  THIS COURT
AGREED WITH THE BOARD ON THE GENERAL PROPOSITION, IN FREMONT V. UNITED
STATES, 17 HOW.  542, 563(MARCH 10, 1855); UNITED STATES V. READING, 18
HOW.  1, 7-8(JANUARY 11, 1856); UNITED STATES V. LARKIN 18 HOW.  557,
563(MAY 12, 1856).  A SPECIAL RULE TO THE CONTRARY WAS LATER PRONOUNCED
AS TO ISLAND GRANTS IN UNITED STATES V. OSIO, 23 HOW.  273, DECIDED
MARCH 12, 1860, BUT IT CANNOT BE SAID FROM THE PRESENT RECORD WHETHER
THAT RULE WAS APPLICABLE TO THE CASTRO GRANT. 

ALSO INVOLVED IN THE CLAIM OF BISSELL AND ASPINWALL WERE FIVE OTHER
QUESTIONS, EACH OF WHICH HAD BEEN DECIDED BY THE BOARD BEFORE THE
ATTORNEY GENERAL'S OPINION OF APRIL 9, 1853, AND BEFORE THE BOARD'S
LATER CONFIRMATION OF THE BISSELL AND ASPINWALL CLAIM.  EACH WAS
DECIDED BY THIS COURT AGAINST THE GOVERNMENT BEFORE ITS DISMISSAL OF
THE APPEAL WHICH IT HAD TAKEN APRIL 1, 1857, FROM THE DISTRICT COURT'S
AFFIRMANCE OF THAT CONFIRMATION.  THE QUESTIONS WERE:    (A)  WHETHER
THE MEXICAN PROVINCIAL GOVERNORS HAD POWER TO GRANT LANDS.  IT WAS
DECIDED IN THE AFFIRMATIVE IN THE PRELIMINARY OPINION ON THE CERVANTES
CLAIM, RENDERED BY THE BOARD AUGUST 3, 1852, AND IN A NUMBER OF
SUBSEQUENT DECISIONS, AND WAS SETTLED BY THIS COURT MARCH 5, 1857, IN
UNITED STATES V. PERALTA, 19 HOW.  343. 

(B)  WHETHER THE MEXICAN GOVERNORS HAD POWER TO GRANT ANY LANDS
WITHIN TEN LEAGUES OF THE SEACOAST - THE SO-CALLED LITTORAL LEAGUE
QUESTION.  IT WAS DECIDED ADVERSELY TO THE GOVERNMENT IN A PRELIMINARY
OPINION IN THE CERVANTES CASE, RENDERED BY THE BOARD AUGUST 3, 1852,
AND WAS SETTLED BY THIS COURT MAY 12, 1856, IN ARGUELLO V. UNITED
STATES, 18 HOW.  539, AND UNITED STATES V. CERVANTES, 18 HOW.  553. 

(C)  WHETHER THE GRANTEE'S FAILURE TO FURNISH A MAP (DISENO) WITH HIS
PETITION FOR A GRANT, CONSTITUTES A FATAL DEFECT IN TITLE.  IT WAS
DECIDED BY THE BOARD ADVERSELY TO THE GOVERNMENT IN THE FREMONT CASE,
DECEMBER 27, 1852, AND WAS SETTLED BY THIS COURT MARCH 10, 1855, IN
FREMONT V. UNITED STATES, SUPRA. 

(D)  WHETHER A GRANT IS VOID FOR WANT OF A CONDITION REQUIRING THE
GRANTEE TO TAKE POSSESSION OF AND CULTIVATE THE LAND WITHIN A CERTAIN
TIME.  IT WAS DECIDED BY THE BOARD IN THE NEGATIVE IN THE LARKIN CASE,
JANUARY 3, 1853, AND WAS SETTLED BY THIS COURT MAY 12, 1856, IN UNITED
STATES V. LARKIN, SUPRA. 

(E)  WHETHER A GRANT IS VOID FOR WANT OF A CLAUSE INFORMING THE
GRANTEE THAT IT WOULD BECOME INDEFEASIBLE ONLY AFTER APPROVAL BY THE
DEPARTMENTAL DEPUTATION.  IT WAS INVOLVED IN THE LARKIN CLAIM,
CONFIRMED BY THE BOARD JANUARY 3, 1853, AND WAS SETTLED BY THIS COURT
MAY 12, 1856, IN UNITED STATES V. LARKIN, SUPRA. 

CHRONOLOGICAL DATA HAVE BEEN SECURED FROM HOFFMAN'S LAND CASES,
APPENDIX, AND FROM THE RECORDS FILED IN THIS COURT IN THE CITED CASES. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :























CALMAR S.S. CORP. V. TAYLOR, 303 U.S. 525 


NO. 594.  ARGUED MARCH 9, 1938.  - DECIDED MARCH 28, 1938.  - 92 F.2D
84, REVERSED. 


1.  THE RIGHT OF A SEAMAN TO MAINTENANCE AND CURE FOR AN ILLNESS WHICH
BEFALLS HIM DURING HIS SERVICE MAY CONTINUE FOR A PERIOD BEYOND THE
DURATION OF THE VOYAGE, WHETHER HE BE AT HOME OR ABROAD, AND EVEN
THOUGH THE ILLNESS BE NOT CAUSED BY THE EMPLOYMENT.  P. 529. 

2.  IN THE CASE OF A SEAMAN SUFFERING FROM AN INCURABLE DISEASE,
WHICH MANIFESTED ITSELF DURING HIS EMPLOYMENT BUT WAS NOT CAUSED BY IT,
THE DUTY OF THE SHIP OWNER TO FURNISH MAINTENANCE AND CURE DOES NOT
EXTEND BEYOND A FAIR TIME AFTER THE VOYAGE IN WHICH TO EFFECT SUCH
IMPROVEMENT IN THE SEAMAN'S CONDITION AS REASONABLY MAY BE EXPECTED TO
RESULT FROM NURSING, CARE, AND MEDICAL TREATMENT.  P. 530. 

3.  IN A SUIT BROUGHT BY A SEAMAN SUFFERING FROM AN INCURABLE
DISEASE, WHICH MANIFESTED ITSELF DURING HIS EMPLOYMENT THOUGH NOT
CAUSED THEREBY, AN AWARD OF A LUMP SUM IN ANTICIPATION OF A CONTINUING
NEED OF MAINTENANCE AND CURE FOR LIFE (BASED ON HIS LIFE EXPECTANCY),
CAN NOT BE SUSTAINED.  P. 530. 

4.  THE SEAMAN'S RECOVERY IN EACH SUCH CASE MUST BE MEASURED BY THE
REASONABLE COST OF THAT MAINTENANCE AND CURE TO WHICH HE IS ENTITLED AT
THE TIME OF THE TRIAL, INCLUDING, IN THE DISCRETION OF THE COURT, SUCH
AMOUNTS AS MAY BE NEEDFUL IN THE IMMEDIATE FUTURE FOR THE MAINTENANCE
AND CURE OF A KIND AND FOR A PERIOD WHICH CAN BE DEFINITELY
ASCERTAINED.  P. 531. 

CALMAR STEAMSHIP CORP. V. TAYLOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 302 U.S. 681, TO REVIEW A DECREE AFFIRMING AN AWARD
AGAINST THE STEAMSHIP COMPANY IN A SUIT IN ADMIRALTY FOR MAINTENANCE
AND CURE. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE DUTY OF A SHIP OWNER TO
PROVIDE MAINTENANCE AND CURE FOR A SEAMAN FALLING ILL OF AN INCURABLE
DISEASE WHILE IN ITS EMPLOY EXTENDS TO THE PAYMENT OF A LUMP SUM AWARD
SUFFICIENT TO DEFRAY THE COST OF MAINTENANCE AND CURE FOR THE REMAINDER
OF HIS LIFE. 

RESPONDENT WAS A MEMBER OF THE CREW OF PETITIONER'S STEAMSHIP
"LOSMAR."  FOLLOWING AN INJURY TO HIS FOOT, ALLEGEDLY CAUSED BY
STUBBING HIS TOE AGAINST AN OBJECT LYING ON THE FLOOR OF THE BOILER
ROOM WHERE HE WAS EMPLOYED, RESPONDENT WAS FOUND TO BE AFFLICTED WITH
THROMBO ANGIITIS OBLITERANS, OTHERWISE KNOWN AS BUERGER'S DISEASE, AN
INCURABLE MALADY OF THE VEINS AND ARTERIES.  IT IS ATTENDED BY
INTERRUPTIONS OF THE BLOOD STREAM, WITH CONSEQUENT MALNUTRITION OF THE
AFFECTED PARTS, PRODUCING LESIONS, DETERIORATING CHANGES OF THE
TISSUES, AND GANGRENE.  MEDICAL TREATMENT AND AMPUTATION OF THE
AFFECTED PARTS MAY HALT THE ADVANCE OF THE DISEASE, BUT ITS
MANIFESTATIONS ARE LIKELY TO RECUR IN OTHER PARTS OF THE BODY, AND
MEDICAL OPINION IS THAT THE DISEASE TENDS TO BE PROGRESSIVE AND MAY
ULTIMATELY CAUSE DEATH.  CARE AND TREATMENT AT FREQUENT INTERVALS, WITH
PERIODIC MEDICAL OBSERVATION OF THE PATIENT, ARE OF AID IN ARRESTING
ITS PROGRESS. 

AFTER FEBRUARY 12, 1935, WHEN RESPONDENT WAS FIRST HOSPITALIZED, HE
WAS GIVEN TREATMENT AT VARIOUS MARINE HOSPITALS, IN THE COURSE OF WHICH
HE SUFFERED FOUR AMPUTATIONS UPON THE RIGHT FOOT AND LEG.  ON OCTOBER
3, 1935, AFTER HIS LEG HAD BEEN AMPUTATED BELOW THE KNEE, HE WAS
DISCHARGED TO THE "OUTPATIENT DEPARTMENT TO RETURN AT INTERVALS FOR
REEXAMINATION, AND LATER TO BE FITTED WITH AN ARTIFICIAL LIMB." 
PETITIONER, FROM TIME TO TIME, PAID RESPONDENT SMALL SUMS FOR
MAINTENANCE AND CURE, CONTINUING TO DO SO UNTIL MARCH 10, 1936, WHEN
THEY TOTALED $487.  AT ABOUT THIS TIME RESPONDENT BROUGHT THE PRESENT
SUIT IN ADMIRALTY TO RECOVER MAINTENANCE AND CURE, AND, IN ANOTHER
COUNT, FOR PETITIONER'S NEGLIGENCE IN CAUSING THE INJURY.  THE TRIAL
COURT FOUND THAT PETITIONER WAS NOT NEGLIGENT, BUT HELD THAT RESPONDENT
IS ENTITLED TO RECOVER THE COST OF MAINTENANCE AND MEDICAL TREATMENT SO
LONG AS SUCH TREATMENT IS NECESSARY, AND THAT AS HIS AFFLICTION IS
INCURABLE, THERE SHOULD BE A LUMP SUM AWARD BASED ON HIS LIFE
EXPECTANCY.  ITS DECREE AWARDING A RECOVERY OF $7000 WAS AFFIRMED BY
THE COURT OF APPEALS.  92 F.(2D) 84.  BECAUSE OF THE IMPORTANCE OF THIS
QUESTION, WE GRANTED CERTIORARI, 302 U.S. 681, BUT DENIED A CROSS
PETITION TO REVIEW THE COURT OF APPEALS' AFFIRMANCE OF THE DECREE FOR
THE SHIP OWNER ON THE NEGLIGENCE COUNT, POST, P. 643. 

THE ANCIENT DUTY OF A VESSEL AND HER OWNER TO PROVIDE MAINTENANCE AND
CURE FOR SEAMEN INJURED OR FALLING ILL WHILE IN SERVICE WAS RECOGNIZED
AND, TO SOME EXTENT, DEFINED BY THIS COURT IN THE OSCEOLA, 189 U.S.
158, 175.  SEE ALSO CHELENTIS V. LUCKENBACH S.S. CO., 247 U.S. 372;
PACIFIC S.S. CO. V. PETERSON, 278 U.S. 130.  THE DUTY, WHICH ARISES
FROM THE CONTRACT OF EMPLOYMENT, CORTES V. BALTIMORE INSULAR LINE, 287
U.S. 367, 371, DOES NOT REST UPON NEGLIGENCE OR CULPABILITY ON THE PART
OF THE OWNER OR MASTER, ID.; THE CITY OF ALEXANDRIA, 17 FED. 390(D.C.);
THE MARS, 149 FED. 729, 731(C.C.A.); SORENSEN V. ALASKA S.S. CO., 243
FED. 280(D.C.), AFF'D 247 FED. 294(C.C.A.); BROWN V. THE BRADISH
JOHNSON, FED. CAS. NO. 1992, 1 WOODS 301(C.C.), NOR IS IT RESTRICTED TO
THOSE CASES WHERE THE SEAMAN'S EMPLOYMENT IS THE CAUSE OF THE INJURY OR
ILLNESS.  THE WENSLEYDALE, 41 FED. 829(D.C.); THE BOUKER NO. 2, 241
FED. 831(C.C.A.).  IT IS NOT AN AWARD OF COMPENSATION FOR THE
DISABILITY SUFFERED, THE WANDERER, 20 FED. 140, 143(C.C.), ALTHOUGH
BREACH OF THE DUTY MAY RENDER THE OWNER LIABLE FOR THE CONSEQUENTIAL
DAMAGES SUFFERED BY THE SEAMAN.  CORTES V. BALTIMORE INSULAR LINE,
SUPRA, 371.  THE MAINTENANCE EXACTED IS COMPARABLE TO THAT TO WHICH THE
SEAMAN IS ENTITLED WHILE AT SEA, THE HENRY B. FISKE, 141 FED. 188,
192(D.C.); THE MARS, 145 FED. 446, 447, (D.C.), AFF'D 149 FED.
729(C.C.A.); THE BOUKER NO. 2, SUPRA, 836, AND "CURE" IS CARE,
INCLUDING NURSING AND MEDICAL ATTENTION DURING SUCH PERIOD AS THE DUTY
CONTINUES.  WHITNEY V. OLSEN, 108 FED. 292, 297(C.C.A.)  AND CASES
CITED; DAUGHERTY V. THOMPSON-LOCKHART CO., 211 FED. 224, 227(D.C.). 

IN THE OSCEOLA, SUPRA, THIS COURT RESERVED THE POINT WHETHER THE DUTY
OF MAINTENANCE AND CURE EXTENDS BEYOND THE DURATION OF THE VOYAGE, AND
THAT QUESTION, SO FAR AS THIS COURT IS CONCERNED, REMAINS AN OPEN ONE. 
THE REASONS UNDERLYING THE RULE, TO WHICH REFERENCE MUST BE MADE IN
DEFINING IT, ARE THOSE ENUMERATED IN THE CLASSIC PASSAGE BY MR. JUSTICE
STORY IN HARDEN V. GORDON, FED. CAS. NO. 6047(C.C.):  THE PROTECTION OF
SEAMEN, WHO, AS A CLASS, ARE POOR, FRIENDLESS AND IMPROVIDENT, FROM THE
HAZARDS OF ILLNESS AND ABANDONMENT WHILE ILL IN FOREIGN PORTS; THE
INDUCEMENT TO MASTERS AND OWNERS TO PROTECT THE SAFETY AND HEALTH OF
SEAMEN WHILE IN SERVICE; THE MAINTENANCE OF A MERCHANT MARINE FOR THE
COMMERCIAL SERVICE AND MARITIME DEFENSE OF THE NATION BY INDUCING MEN
TO ACCEPT EMPLOYMENT IN AN ARDUOUS AND PERILOUS SERVICE. 

IT IS PLAIN THAT IN MANY CASES THESE PURPOSES WILL NOT BE
ACCOMPLISHED IF THE OWNER'S DUTY TO FURNISH MAINTENANCE AND CURE ENDS
WITH THE VOYAGE.  IF THE INJURY OR ILLNESS OUTLASTS IT, THE SEAMAN MAY
STILL BE LEFT HELPLESS AND UNCARED FOR IN A FOREIGN PORT.  EVEN IF HE
IS RETURNED TO THE HOME PORT THE INDUCEMENT TO THE OWNER TO CARE FOR
THE HEALTH AND SAFETY OF SEAMEN DURING THE VOYAGE AND THE INDUCEMENT TO
SEAMEN TO TAKE THE NECESSARY RISKS OF A HAZARDOUS CALLING WILL BE
MATERIALLY LESSENED.  THE CHANCES OF THEIR PROMPT RESTORATION TO A
SERVICE WHOSE PRESERVATION IS IN THE PUBLIC INTEREST, WILL BE
DIMINISHED IF THE RIGHT TO MAINTENANCE AND CURE ENDS WITH THE VOYAGE. 

TACIT RECOGNITION IS ACCORDED THESE CONSIDERATIONS IN THE GREAT
NUMBER OF CASES IN THE LOWER FEDERAL COURTS SUSTAINING THE RIGHT TO
MAINTENANCE AND CURE FOR A REASONABLE TIME AFTER THE VOYAGE -
"REASONABLE TIME" BEING APPRAISED WITH REFERENCE TO THE SPECIAL
CIRCUMSTANCES OF EACH CASE.  THE BOUKER NO. 2, SUPRA, 835, AND CASES
CITED AT 834.  IT IS TRUE THAT IN MOST OF THESE CASES THE EFFICIENT
CAUSE OF THE INJURY OR ILLNESS WAS SOME PROVEN ACT OF THE SEAMAN IN THE
SERVICE OF THE SHIP, BUT THERE ARE OTHERS IN WHICH IT WAS DEEMED ENOUGH
THAT HE WAS INCAPACITATED WHEN SUBJECT TO THE CALL OF DUTY AS A SEAMAN,
AND THAT HIS INCAPACITY CONTINUED AFTER THE VOYAGE HAD ENDED.  THE
BOUKER NO. 2, SUPRA, 835; THE WENSLEYDALE, SUPRA. 

WE ACCEPT AS SUPPORTED BY EVIDENCE, THE FINDING OF THE DISTRICT COURT
THAT RESPONDENT'S DISEASE AND THE AMPUTATIONS WHICH HE SUFFERED WERE
NOT CAUSED BY THE INJURY TO HIS FOOT.  BUT WE THINK THAT EVEN IN SUCH A
CASE, WHETHER THE SEAMAN IS AT HOME OR ABROAD, HIS RIGHT TO MAINTENANCE
AND CURE MAY OUTLAST THE VOYAGE.  THE POLICY UNDERLYING THE OBLIGATION,
SO COGENTLY STATED BY JUSTICE STORY IN HARDEN V. GORDON, SUPRA, AND THE
LIBERALITY WITH WHICH ADMIRALTY COURTS HAVE TRADITIONALLY INTERPRETED
RULES DEVISED FOR THE BENEFIT AND PROTECTION OF SEAMEN WHO ARE ITS
WARDS, ROBERTSON V. BALDWIN, 165 U.S. 275, 287; CORTES V. BALTIMORE
INSULAR LINE, SUPRA, 377; THE ARIZONA V. ANELICH, 298 U.S. 110, 123,
CALL FOR SOME EXTENSION OF THE DUTY BEYOND THE TERM OF SERVICE.  THE
PRACTICAL INCONVENIENCE AND THE ATTENDANT DANGER TO SEAMEN IN THE
APPLICATION OF A RULE WHICH WOULD ENCOURAGE THE ATTEMPT BY MASTER OR
OWNER TO DETERMINE IN ADVANCE OF ANY MAINTENANCE AND CURE, WHETHER THE
ILLNESS WAS CAUSED BY THE EMPLOYMENT, ARE MANIFEST. 

THERE REMAIN THE QUESTIONS WHETHER IN THE CASE OF A CHRONIC ILLNESS
THE DUTY CONTINUES SO LONG AS MEDICAL ATTENDANCE AND CARE ARE
BENEFICIAL, UNTIL DEATH IF THE NEED LASTS SO LONG, AND WHETHER A LUMP
SUM MAY BE AWARDED TO DEFRAY THE COST OF MEETING THE ANTICIPATED NEED. 

IN ANSWERING THE FIRST WE LAY TO ONE SIDE THOSE CASES WHERE THE
INCAPACITY IS CAUSED BY THE EMPLOYMENT.  AS TO THEM CONSIDERATIONS NOT
PRESENT HERE MAY APPLY, WHICH MIGHT BE THOUGHT TO REQUIRE A MORE
LIBERAL APPLICATION OF THE RULE THAN WE THINK IS CALLED FOR IN THIS
CASE.  CF. REED V. CANFIELD, FED. CAS. NO. 11641(C.C.), WITH THE
COMMENTS OF JUDGE, LATER JUSTICE BROWN IN THE J. F. CARD, 43 FED.
92(D.C.), AND SEE THOSE OF JUDGE HOUGH IN THE BOUKER NO. 2, SUPRA,
834.  BUT WE FIND NO SUPPORT IN THE POLICIES WHICH HAVE GENERATED THE
DOCTRINE FOR HOLDING THAT IT IMPOSES ON THE SHIP OWNER AN INDEFINITELY
CONTINUING OBLIGATION TO FURNISH MEDICAL CARE TO A SEAMAN AFFLICTED
WITH AN INCURABLE DISEASE, WHICH MANIFESTS ITSELF DURING HIS
EMPLOYMENT, BUT IS NOT CAUSED BY IT.  SO FAR AS WE ARE ADVISED IT IS
WITHOUT SUPPORT IN THE AUTHORITIES.  WE CAN FIND NO BASIS FOR SAYING
THAT, IF THE DISEASE PROVES TO BE INCURABLE, THE DUTY EXTENDS BEYOND A
FAIR TIME AFTER THE VOYAGE IN WHICH TO EFFECT SUCH IMPROVEMENT IN THE
SEAMAN'S CONDITION AS REASONABLY MAY BE EXPECTED TO RESULT FROM
NURSING, CARE, AND MEDICAL TREATMENT.  THIS WOULD SATISFY SUCH DEMANDS
OF POLICY AS UNDERLIE THE IMPOSITION OF THE OBLIGATION.  BEYOND THIS WE
THINK THERE IS NO DUTY, AT LEAST WHERE THE ILLNESS IS NOT CAUSED BY THE
SEAMAN'S SERVICE. 

THE AWARD OF A LUMP SUM IN ANTICIPATION OF THE CONTINUING NEED OF
MAINTENANCE AND CURE FOR LIFE OR AN INDEFINITE PERIOD, IS WITHOUT
SUPPORT IN JUDICIAL DECISION.  AWARDS OF SMALL AMOUNTS TO COVER FUTURE
MAINTENANCE AND CURE OF A KIND AND FOR A PERIOD DEFINITELY ASCERTAINED
OR ASCERTAINABLE HAVE OCCASIONALLY BEEN MADE.  THE MARS, 149 FED. 729,
730(C.C.A.); WILSON V. MANHATTAN CANNING CO., 205 FED. 996, 997(D.C.). 
BUT THE AWARD HERE SEEMS TO US TO BE INCONSISTENT WITH THE MEASURE OF
THE DUTY AND THE PURPOSES TO BE EFFECTED BY ITS PERFORMANCE.  THE DUTY
DOES NOT EXTEND BEYOND THE SEAMAN'S NEED.  RAYMOND V. THE ELLA S.
THAYER, 40 FED. 902, 903(D.C.); THE J.F. CARD, SUPRA, 95; THE BOUKER
NO. 2, SUPRA, 835; THE SANTA BARBARA, 263 FED. 369, 371(C.C.A.);
STEWART V. UNITED STATES, 25 F.(2D) 869, 870(D.C.); MARSHALL V.
INTERNATIONAL MERCANTILE MARINE CO., 39 F.(2D) 551, 553(C.C.A.); CF.
HOLT V. CUMMINGS, 102 PA. 212; CONTRA, REED V. CANFIELD, SUPRA.  THE
AMOUNT AND CHARACTER OF MEDICAL CARE WHICH WILL BE REQUIRED IN THE CASE
OF AN AFFLICTION, AS WELL DEFINED EVEN AS BUERGER'S DISEASE, CANNOT BE
MEASURED BY REFERENCE TO MORTALITY TABLES.  MOREOVER, COURTS TAKE
COGNIZANCE OF THE MARINE HOSPITAL SERVICE WHERE SEAMEN MAY BE TREATED
AT MINIMUM EXPENSE, IN SOME CASES WITHOUT EXPENSE, AND THEY LIMIT
RECOVERY TO THE EXPENSE OF SUCH MAINTENANCE AND CURE AS IS NOT AT THE
DISPOSAL OF THE SEAMAN THROUGH RECOURSE TO THAT SERVICE.  THE BOUKER
NO. 2, SUPRA, 835; MARSHALL V. INTERNATIONAL MERCANTILE MARINE CO.,
SUPRA, 553, AND CASES CITED.  FURTHERMORE, A DUTY IMPOSED TO SAFEGUARD
THE SEAMAN FROM THE DANGER OF ILLNESS WITHOUT SUCCOR, AND TO SAFEGUARD
HIM, IN CASE OF ILLNESS, AGAINST THE CONSEQUENCES OF HIS IMPROVIDENCE,
WOULD HARDLY BE PERFORMED BY THE PAYMENT OF A LUMP SUM TO COVER THE
COST OF MEDICAL ATTENDANCE DURING LIFE. 

THE SEAMAN'S RECOVERY MUST THEREFORE BE MEASURED IN EACH CASE BY THE
REASONABLE COST OF THAT MAINTENANCE AND CURE TO WHICH HE IS ENTITLED AT
THE TIME OF TRIAL, INCLUDING, IN THE DISCRETION OF THE COURT, SUCH
AMOUNTS AS MAY BE NEEDFUL IN THE IMMEDIATE FUTURE FOR THE MAINTENANCE
AND CURE OF A KIND AND FOR A PERIOD WHICH CAN BE DEFINITELY
ASCERTAINED. 

THE COURTS BELOW HAVE MADE NO FINDINGS SUFFICIENT TO ENABLE US TO FIX
THE AMOUNT WHICH RESPONDENT IS ENTITLED TO RECOVER.  THE DECREE IS
ACCORDINGLY REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION, AND WITHOUT
PREJUDICE TO ANY LATER SUIT BY RESPONDENT TO RECOVER MAINTENANCE AND
CURE TO WHICH HE MAY THEN BE ENTITLED.  REVERSED. 

MR. JUSTICE BLACK IS OF OPINION THAT THE JUDGMENT SHOULD BE
AFFIRMED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
















ADAMS V. NAGLE, 303 U.S. 532 


NO. 123.  ARGUED DECEMBER 16, 17, 1937.  REARGUED MARCH 8, 9, 1938.  -
DECIDED MARCH 28, 1938.  - 88 F.2D 936, REVERSED. 


STOCKHOLDERS OF THE "P" AND "R" NATIONAL BANKS BROUGHT BILLS IN EQUITY
TO ENJOIN THE RECEIVER FROM ENFORCING ASSESSMENTS, ORDERED BY THE
COMPTROLLER OF THE CURRENCY PURSUANT TO THE STATUTE GOVERNING THE
ADDITIONAL LIABILITY OF SHAREHOLDERS, ON THE GROUNDS THAT THE ACTION OF
THE COMPTROLLER IN ORDERING THE ASSESSMENTS WAS IN EXCESS OF HIS
STATUTORY POWER, ARBITRARY, CAPRICIOUS, AND A DENIAL OF DUE PROCESS OF
LAW.  THE BILLS ALLEGED, INTER ALIA, THAT THE COMPTROLLER ERRONEOUSLY
DISREGARDED AGREEMENTS THERETOFORE ENTERED INTO BETWEEN THE "P" AND "R"
AND THE "F" BANKS, WHEREBY THE FIRST TWO CONVEYED ALL OF THEIR ASSETS
TO THE LAST, WHICH ASSUMED ALL OF THEIR LIABILITIES EXCEPT LIABILITIES
TO STOCKHOLDERS, AND OUT OF WHICH AGREEMENTS AROSE CLAIMS AGAINST THE
"F" BANK SUFFICIENT TO PAY THE DEBTS OF THE "P" AND "R" BANKS WITHOUT
THE NECESSITY OF ASSESSMENT OF STOCKHOLDERS.  UPON THE ALLEGATIONS OF
THE BILLS, HELD: 

1.  THE ASSESSMENTS WERE NOT SUBJECT TO ATTACK OR FRUSTRATION IN
THESE PROCEEDINGS UPON THE GROUNDS SET FORTH IN THE BILLS.  P. 538. 

2.  THE AGREEMENTS BETWEEN THE BANKS DID NOT EFFECT A CONSOLIDATION
IN CONFORMITY WITH THE NATIONAL BANKING ACT, AND THE COMPTROLLER WAS
BOUND TO DEAL WITH THEM, SO FAR AS THEIR ASSETS AND LIABILITIES WERE
CONCERNED AND IN RESPECT OF STOCKHOLDERS' LIABILITY, AS THREE SEPARATE
ENTITIES.  P. 538. 

3.  IT WAS NOT A CONDITION PRECEDENT TO THE VALIDITY OF THE
ASSESSMENTS THAT THE COMPTROLLER SHOULD HAVE EXHAUSTED THE ASSETS OF
THE "P" AND "R" BANKS.  P. 539. 

4.  THE COMPTROLLER'S DETERMINATION AS TO THE NECESSITY FOR THE
ASSESSMENTS WAS MADE IN THE EXERCISE OF THE DISCRETIONARY POWER VESTED
IN HIM AND WAS FINAL AND CONCLUSIVE.  P. 540. 

5.  COLLECTION OF THE ASSESSMENTS COULD NOT BE MADE TO AWAIT THE
OUTCOME OF LITIGATION CHALLENGING THE CORRECTNESS OF THE COMPTROLLER'S
DECISION AS TO THE EFFECT OF THE AGREEMENTS BETWEEN THE BANKS.  P.
544. 

ADAMS, RECEIVER, V. NAGLE ET AL.* 

*TOGETHER WITH NO. 124, ADAMS, RECEIVER, V. TOBIAS ET AL., ALSO ON
WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 302 U.S. 665, TO REVIEW A DECREE REVERSING ORDERS OF THE
DISTRICT COURT DISMISSING THE BILLS OF COMPLAINT IN TWO SUITS BROUGHT
BY STOCKHOLDERS OF TWO INSOLVENT NATIONAL BANKS TO ENJOIN THE RECEIVER
FROM ENFORCING ASSESSMENTS ORDERED BY THE COMPTROLLER OF THE CURRENCY. 
BY ORDER OF THE TRIAL COURT THE CASES WERE CONSOLIDATED FOR THE PURPOSE
OF APPEAL. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THESE ARE STOCKHOLDERS' SUITS TO ENJOIN THE RECEIVER OF TWO NATIONAL
BANKS FROM ENFORCING ASSESSMENTS ORDERED BY THE COMPTROLLER OF THE
CURRENCY PURSUANT TO THE STATUTE GOVERNING THE ADDITIONAL LIABILITY OF
SHAREHOLDERS.  FN1 

THE RESPONDENTS IN NO. 123 ARE STOCKHOLDERS OF THE PENN NATIONAL BANK
AND TRUST COMPANY OF READING, PENNSYLVANIA; THOSE IN NO. 124 ARE
STOCKHOLDERS OF THE READING NATIONAL BANK AND TRUST COMPANY OF THE SAME
CITY; AND THE PETITIONER IS RECEIVER OF BOTH BANKS.  THE CONTROVERSY
HAS ITS ORIGIN IN A TRANSACTION BETWEEN THE TWO BANKS AND THE FARMERS
NATIONAL BANK AND TRUST COMPANY OF READING.  THE CAUSES OF ACTION ARE
IDENTICAL AND IT WILL SUFFICE TO OUTLINE THE ALLEGATIONS OF THE BILL IN
NO. 123.  THESE ARE: 

ON FEBRUARY 17, 1933, PENN AND READING WERE SUBJECTED TO UNUSUAL
WITHDRAWALS WHICH DEPLETED THEIR RESERVES AND PLACED BOTH ON THE VERGE
OF INSOLVENCY.  DUE TO THIS CONDITION THE TWO BANKS ON THAT DATE
ENTERED INTO AN AGREEMENT WITH THE FARMERS CONTEMPLATING A
CONSOLIDATION OF THE THREE IN ACCORDANCE WITH TITLE 12 U.S.C. SECS. 33
AND 34.  THE AGREEMENT CALLED FOR A VALUATION OF THE ASSETS OF THE
THREE BANKS WITH ENSUING RECAPITALIZATION AND FOR THE COMPTROLLER'S
APPROVAL OF THE TERMS OF CONSOLIDATION AS REQUIRED BY LAW.  IT FURTHER
PROVIDED FOR TRANSFER BY PENN AND READING OF ALL THEIR ASSETS TO
FARMERS, WITH THE RIGHT TO HYPOTHECATE AND REHYPOTHECATE THEM, AND FOR
ASSUMPTION BY FARMERS OF THE LIABILITIES OF THE TRANSFERRING BANKS
EXCEPT THAT TO STOCKHOLDERS, THEY RESERVING THE RIGHT TO ENFORCE
AGAINST THEIR STOCKHOLDERS ANY STATUTORY EXCESS LIABILITY.  FARMERS WAS
TO OPERATE THEIR BANKING HOUSES AS ITS BRANCHES.  ON THE SAME DAY PENN
AND READING TURNED OVER THEIR ASSETS TO FARMERS, WHICH MINGLED THEM
WITH ITS OWN AND THEREAFTER DEALT WITH THEM AS ITS OWN.  THERE IS NO
ASSERTION THAT ON FEBRUARY 17 THE COMPTROLLER KNEW, OR APPROVED, OF THE
AGREEMENT AND TRANSFER.  IT IS ALLEGED, HOWEVER, THAT, BY HIS
DIRECTION, A SUPPLEMENTAL AGREEMENT WAS MADE FEBRUARY 20, 1933, BY
WHICH PENN AND READING GUARANTEED TO FARMERS THAT THE ASSETS OF EACH
WOULD EXCEED IN VALUE ITS LIABILITIES ASSUMED BY FARMERS UNDER THE
AGREEMENT OF FEBRUARY 17; AND THAT HE ACQUIESCED IN THE CONTINUED
ADMINISTRATION OF THE AFFAIRS OF PENN AND READING BY FARMERS.  ON
FEBRUARY 17 THE ASSETS OF PENN WHICH WERE TRANSFERRED TO FARMERS HAD A
REASONABLE MARKET NET VALUE OF $5,400,000 AS AGAINST TOTAL LIABILITIES
OF $5,100,000, AND THE ASSETS OF FARMERS WERE OF THE FAIR VALUE OF
$8,000,000(TO WHICH IS TO BE ADDED THE STOCKHOLDERS' LIABILITY FOR
ASSESSMENT IN THE AMOUNT OF $1,000,000), AS AGAINST LIABILITY TO
CREDITORS OF $9,000,000.  FN2  THE CLAIMS OF THE TWO BANKS AGAINST
FARMERS WERE, AT THE DATE OF TRANSFER, AND STILL ARE, MORE THAN
SUFFICIENT, IN THE ORDINARY COURSE OF LIQUIDATION, TO PAY ALL OF THEIR
LIABILITIES WITHOUT THE NECESSITY OF AN ASSESSMENT OF THE
STOCKHOLDERS. 

FARMERS CONTINUED TO DO BUSINESS WITH THE COMBINED AND COMMINGLED
ASSETS FROM FEBRUARY 17 TO MARCH 18, 1933.  THEN THE COMPTROLLER
APPOINTED A CONSERVATOR WHO TOOK POSSESSION OF ALL OF THE ASSETS. 
OCTOBER 10, 1933, THE COMPTROLLER, WITHOUT NOTICE TO PENN OR READING,
THEIR DEPOSITORS, CREDITORS, OR STOCKHOLDERS, AND WITHOUT A HEARING,
RULED THAT THE AGREEMENTS OF FEBRUARY 17 AND FEBRUARY 20 WERE WITHOUT
LEGAL EFFECT AND DIRECTED THAT THE TRANSFER AND DELIVERY OF THE ASSETS,
AND THE ASSUMPTION OF LIABILITIES THEREUNDER, SHOULD BE DISREGARDED;
AND HE ATTEMPTED TO ALLOCATE AMONG THE THREE BANKS THE ASSETS
THERETOFORE TRANSFERRED AND DELIVERED TO FARMERS.  HE APPOINTED THE
SAME PERSON HE HAD PREVIOUSLY NAMED CONSERVATOR FOR FARMERS TO BE
CONSERVATOR OF THE OTHER TWO BANKS.  OCTOBER 20, 1933, THE COMPTROLLER
PROPOSED A SO-CALLED PLAN OF REORGANIZATION OF THE THREE BANKS WHICH
PROVIDED FOR THE ORGANIZATION OF A NEW NATIONAL BANK, THE ISSUE BY IT
OF STOCK AND SECURITIES, THE PLEDGE OF SOME OF ITS ASSETS TO SECURE A
LOAN FROM RECONSTRUCTION FINANCE CORPORATION, A SALE OF THE ASSETS IN
THE POSSESSION OF THE CONSERVATOR OF FARMERS TO THE NEW NATIONAL BANK,
AND A DIVISION OF THE PROCEEDS ON THE BASIS OF THIRTY-FIVE PER CENT. TO
FARMERS, TWENTY-FIVE PER CENT. TO PENN, AND TWENTY-FIVE PER CENT. TO
READING.  IT IS CHARGED THAT THIS DIVISION WAS ARBITRARY AND WAS BASED
ON A CLASSIFICATION ADOPTED FROM THE REPORT OF NATIONAL BANK EXAMINERS
DATED APRIL 24, 1933, AND NOT ON THE FINANCIAL CONDITION OF THE BANKS
AS OF FEBRUARY 17, 1933, THE DATE OF THE EXECUTION OF THE AGREEMENT,
TRANSFER OF ASSETS, AND ASSUMPTION OF LIABILITIES.  THE CONSERVATOR OF
ALL THREE BANKS, IN FURTHERANCE OF THE PLAN, RECONSTRUCTED THE ASSETS
AND LIABILITIES OF EACH AS OF APRIL 24, 1933, MADE A DIVISION THEREOF
AMONGST THE BANKS, CONSUMMATED THE SALE TO THE NEW BANK, AND
APPORTIONED THE PROCEEDS ACCORDING TO THE PLAN.  IN SO DOING, IN
CONFORMITY WITH THE COMPTROLLER'S RULING, HE DISREGARDED ALL RIGHTS AND
OBLIGATIONS ARISING FROM THE AGREEMENT OF FEBRUARY 17, 1933, AND
DISREGARDED THE CLAIM OF PENN, IN THE AMOUNT OF $5,100,000, AND THE
CLAIM OF READING, IN THE AMOUNT OF $9,000,000, AGAINST FARMERS.  THE
BILLS CHARGE THAT THIS CONDUCT WAS ARBITRARY, AND THAT THE
COMPTROLLER'S RULING RESPECTING THE TWO AGREEMENTS WAS BEYOND THE
POWERS CONFERRED UPON HIM BY THE NATIONAL BANK ACT OR OTHER STATUTORY
LAW, WAS AN UNLAWFUL ASSUMPTION OF JUDICIAL POWERS NOT DELEGATED TO HIM
BY STATUTE, OR CAPABLE OF BEING SO DELEGATED, WAS IN VIOLATION OF THE
RIGHTS OF PENN AND READING, THEIR DEPOSITORS, OTHER CREDITORS, AND
STOCKHOLDERS, AND DEPRIVED THEM OF THEIR PROPERTY WITHOUT DUE PROCESS
OF LAW. 

AFTER CONSUMMATION OF THE PLAN OF REORGANIZATION THE COMPTROLLER
CERTIFIED THAT EACH OF THE THREE BANKS WAS INSOLVENT AND, IN OCTOBER
AND NOVEMBER 1934, APPOINTED A RECEIVER FOR EACH OF THEM.  JANUARY 15,
1935, HE CERTIFIED THAT, UPON A PROPER ACCOUNTING BY THE RECEIVERS OF
PENN AND READING, AND A VALUATION OF THE UNCOLLECTED ASSETS REMAINING
IN THEIR HANDS, IT APPEARED THAT A 100% ASSESSMENT WAS NECESSARY TO PAY
THEIR DEBTS AND HE ACCORDINGLY ORDERED SUCH AN ASSESSMENT.  THE BILLS
CHARACTERIZE HIS CONDUCT AS A FAILURE, NEGLECT, AND REFUSAL TO COLLECT
THE CLAIMS OF PENN AND READING AGAINST FARMERS AND A CONSEQUENT FAILURE
TO COMPLY WITH THE CONDITIONS AND PROVISIONS OF THE STATUTE AUTHORIZING
ASSESSMENTS OF STOCKHOLDERS, AND AS "IN FRAUD OF THE RIGHTS" OF PENN
AND READING, THEIR CREDITORS AND STOCKHOLDERS.  HIS IGNORING THE CLAIMS
IS CHARGED TO HAVE BEEN "A GRAVE ERROR OF LAW BASED UPON HIS
UNWARRANTED ASSUMPTION OF JUDICIAL POWER IN ABROGATING, CANCELLING, AND
WAIVING" THE CLAIMS OF PENN AND READING AGAINST FARMERS, AND
"ADJUDICATING THE PRIVATE RIGHTS AND OBLIGATIONS OF PARTIES NOT SUBJECT
TO HIS POWER AND CONTROL," WHICH INVALIDATED THE ASSESSMENTS. 

THE RECEIVER INTERPOSED MOTIONS TO DISMISS WHICH WERE SUSTAINED BY
THE DISTRICT COURT.  THE CIRCUIT COURT OF APPEALS REVERSED,  FN3
HOLDING THE BILLS SET FORTH A CAUSE OF ACTION SINCE, IF THEIR
ALLEGATIONS WERE TRUE, THE COMPTROLLER HAD EXCEEDED HIS STATUTORY POWER
AND ACTED ARBITRARILY IN ORDERING THE ASSESSMENTS.  THE IMPORTANCE OF
THE QUESTION INVOLVED AND ASSERTED CONFLICT OF DECISION MOVED US TO
GRANT CERTIORARI. 

THE PETITIONER'S POSITION IS THAT THE AGREEMENT AND TRANSFER OF
ASSETS TO THE FARMERS DID NOT EFFECT A STATUTORY CONSOLIDATION; THAT
THE COMPTROLLER WAS, THEREFORE, AT LIBERTY TO TREAT ALL THREE BANKS AS
SEPARATE ENTITIES FOR THE PURPOSE OF ASSESSING STOCKHOLDERS' LIABILITY
AND THAT STOCKHOLDERS MAY NOT, BY A PROCEEDING IN EQUITY, CHALLENGE HIS
OFFICIAL FINDINGS AS TO INSOLVENCY AND NECESSITY FOR AN ASSESSMENT. 
THE RESPONDENTS SAY THE COMPTROLLER'S POWER OF ASSESSMENT IS
CONDITIONED ON A BASIC OR QUASI-JURISDICTIONAL FACT, - THAT THE
ORDINARY RESOURCES OF A BANK HAVE BEEN EXHAUSTED, - AND, IF THEY HAVE
NOT BEEN, OR ARE DEFICIENT ONLY BECAUSE OF THE COMPTROLLER'S UNLAWFUL
ABROGATION OF AND REFUSAL TO REQUIRE COLLECTION OF A VALID CLAIM
SUFFICIENT TO PAY THE BANK'S DEBTS, THE ASSESSMENT IS SUBJECT TO DIRECT
ATTACK AS IN EXCESS OF THAT OFFICER'S STATUTORY POWER, AS ARBITRARY,
CAPRICIOUS, AND A DENIAL OF DUE PROCESS OF LAW.  WE ARE OF OPINION THAT
THE ASSESSMENTS WERE NOT SUBJECT TO ATTACK OR FRUSTRATION IN THESE
PROCEEDINGS UPON THE GROUNDS SET FORTH IN THE BILLS. 

1.  THE AGREEMENTS OF FEBRUARY 17 AND FEBRUARY 20 DID NOT EFFECT A
CONSOLIDATION IN CONFORMITY WITH THE NATIONAL BANKING ACT SO AS TO
CONSTITUTE THE EXISTING STOCKHOLDERS OF PENN AND READING, TOGETHER WITH
THE STOCKHOLDERS OF FARMERS, STOCKHOLDERS OF A CONSOLIDATED BANK.  THE
STEPS REQUISITE TO SUCH CONSOLIDATION WERE NEVER TAKEN.  FN4 

2.  WHEN THE COMPTROLLER TOOK CHARGE OF THE BANKS IN QUESTION HE WAS
BOUND TO DEAL WITH THEM, SO FAR AS THEIR ASSETS AND LIABILITIES WERE
CONCERNED AND IN RESPECT OF STOCKHOLDERS' LIABILITY, UPON THE BASIS
THAT THEY WERE THREE SEPARATE ASSOCIATIONS.  THIS CONCLUSION IS
UNAFFECTED BY THE LEGALITY AND EFFECTIVENESS OF THE AGREEMENT OF
FEBRUARY 17, 1933, UPON WHICH RESPONDENTS INSIST.  FN5 AT MOST THE
AGREEMENT SUBSTITUTED A NEW ASSET - THE PROMISE OF FARMERS - FOR THE
OLD ASSETS.  RESPONDENTS DO NOT CLAIM THAT THE CONTRACT AND THE
TRANSFER PURSUANT TO IT WORKED A NOVATION WHEREBY THE CREDITORS OF THE
TRANSFERRING BANKS BECAME CREDITORS OF THE TRANSFEREE.  SO FAR AS THE
COMPTROLLER WAS CONCERNED THESE CREDITORS WERE STILL THOSE OF THE
FORMER AND ENTITLED TO LOOK TO THEIR ASSETS FOR PAYMENT. 

3.  WHETHER THE COMPTROLLER TOOK THE VIEW THAT THE CONTRACTS AND WHAT
WAS DONE UNDER THEM WERE EFFECTIVE TO COMMUTE THE PHYSICAL ASSETS OF
PENN AND READING INTO A CHOSE IN ACTION AGAINST FARMERS, OR THAT THE
TRANSACTION DID NOT SO OPERATE BUT LEFT PENN AND READING OWNERS OF
THEIR ASSETS SO FAR AS THEY COULD BE IDENTIFIED AND SEGREGATED, IT WAS
NOT, AS RESPONDENTS SUGGEST, A CONDITION PRECEDENT TO THE VALIDITY OF
HIS ASSESSMENT THAT HE SHOULD HAVE EXHAUSTED THE ASSETS OF PENN AND
READING. 

AT THE ARGUMENT THE POSITION WAS TAKEN THAT THE COMPTROLLER WAS
WITHOUT POWER TO LAY AN ASSESSMENT UNTIL HE HAD GOTTEN IN THE AVAILS OF
ALL THE ORDINARY ASSETS OF THE BANKS AND THAT THE CLAIMS OF PENN AND
READING AGAINST FARMERS UNDER THE CONTRACT OF FEBRUARY 17 WERE SUCH
ORDINARY ASSETS.  THE CONCLUSION IS THAT UNTIL THE RECEIVER OF PENN AND
READING HAD RECOVERED UPON THE CONTRACT AND DISTRIBUTED THE PROCEEDS
THE COMPTROLLER WAS WITHOUT POWER TO ORDER AN ASSESSMENT.  NO DECISION
OF ANY COURT WAS CITED TO SUPPORT THIS POSITION, BUT IT WAS SOUGHT TO
MAINTAIN IT BY REFERENCE TO AN AMENDMENT OF THE NATIONAL BANK ACT OF
JUNE 3, 1864,  FN6  OFFERED AND ADOPTED IN THE SENATE.  THE PURPOSE OF
THIS AMENDMENT WAS STATED TO BE TO "ENABLE THE RECEIVER AT ANY TIME
WHENEVER IT BECOMES NECESSARY, TO ENFORCE THE INDIVIDUAL LIABILITY; AND
IN CASE IT IS NOT NECESSARY, IF THE OTHER ASSETS ARE SUFFICIENT, HE
WILL NOT ENFORCE THIS CONTINGENT LIABILITY, WHICH IS INTENDED AS AN
ULTIMATE SECURITY OF THE CREDITORS OF THE BANK."  WE THINK THE ADOPTION
OF THE AMENDMENT IN THE LIGHT OF THE EXPLANATION IS FAR FROM SUSTAINING
THE RESPONDENTS' CONTENTION.  IT HAS ALWAYS BEEN RECOGNIZED THAT IF THE
ASSETS OF A CLOSED NATIONAL BANK ARE SUFFICIENT TO ANSWER ITS
LIABILITIES THE COMPTROLLER IS NOT TO LEVY AN ASSESSMENT, BUT TO HIM IS
CONFIDED THE DETERMINATION OF THE SUFFICIENCY OF THE ASSETS AND, IF HE
CONCLUDES THEY ARE INSUFFICIENT, IT IS NOT ONLY HIS RIGHT BUT HIS DUTY
IMMEDIATELY TO INVOKE THE CONTINGENT LIABILITY OF THE STOCKHOLDERS. 
THIS HAS BEEN THE INVARIABLE ADMINISTRATIVE PRACTICE AND ANY OTHER
WOULD TEND TO DEPRECIATE THE AVAILABILITY AND THE VALUE OF
STOCKHOLDERS' LIABILITY. 

4.  THE QUESTION REMAINS WHETHER, IF THE COMPTROLLER'S ACTION AROSE
FROM MISTAKE OF FACT OR LAW, THE REMEDY HERE INVOKED IS APPROPRIATE. 
IN ESTABLISHING THE NATIONAL BANKING SYSTEM CONGRESS HAS INVESTED THE
COMPTROLLER, AN ADMINISTRATIVE OFFICER, WITH JURISDICTION TO APPOINT A
RECEIVER AFTER INVESTIGATION AND A FINDING THAT A BANK HAS BECOME
INSOLVENT, AND TO ORDER AN ASSESSMENT UP TO ONE HUNDRED PER CENT. OF
THE PAR VALUE OF THE STOCK AGAINST THE SHAREHOLDERS TO PAY CREDITORS'
CLAIMS IF, UPON AN INVESTIGATION, HE FINDS THAT THE ASSETS ARE
INSUFFICIENT TO PAY THE DEBTS.  PLAINLY THESE ARE QUESTIONS FOR THE
EXERCISE OF ADMINISTRATIVE DISCRETION.  THE NECESSITY FOR VESTING THIS
POWER IN AN ADMINISTRATIVE OFFICER SPRINGS FROM THE DESIRABILITY OF
PROMPT LIQUIDATION.  IT WOULD BE INTOLERABLE IF THE COMPTROLLER'S
DECISION COULD BE ATTACKED COLLATERALLY IN EVERY SUIT BY A RECEIVER
AGAINST THE SHAREHOLDERS TO COLLECT THE AMOUNT OF THE ASSESSMENT.  IT
IS SETTLED THIS CANNOT BE DONE.  FN7  IT WOULD BE EQUALLY INTOLERABLE
IF STOCKHOLDERS AS A CLASS COULD CALL UPON A COURT TO REVIEW THE
COMPTROLLER'S EXERCISE OF HIS DISCRETION.  FOR A COURT TO ENTERTAIN A
SUIT FOR THIS PURPOSE WOULD BE TO RENDER NUGATORY THE FUNCTIONS
CONGRESS HAS CONFIDED IN THE COMPTROLLER.  IT HAS OFTEN BEEN DECIDED
THIS MAY NOT BE DONE.  FN8    THE RESPONDENTS, HOWEVER, URGE, AND THE
BILL CHARGES, THAT THE COMPTROLLER, IN RULING THAT THE CONTRACT OF
FEBRUARY 17 SHOULD BE DISREGARDED, AND THE RECEIVER, IN FOLLOWING THIS
RULING, EXCEEDED THEIR STATUTORY POWERS AND ACTED ARBITRARILY AND MAY
BE ENJOINED FROM ENFORCING AN ASSESSMENT BASED ON THE RULING.  THE
CONTENTION RESTS UPON A STATEMENT IN UNITED STATES V. KNOX, 102 U.S.
425:  "ALTHOUGH ASSESSMENTS MADE BY THE COMPTROLLER, UNDER THE
CIRCUMSTANCES OF THE FIRST ASSESSMENT IN THIS CASE, AND ALL OTHER
ASSESSMENTS, SUCCESSIVE OR OTHERWISE, NOT EXCEEDING THE PAR VALUE OF
ALL THE STOCK OF THE BANK, ARE CONCLUSIVE UPON THE STOCKHOLDERS, YET IF
HE WERE TO ATTEMPT TO ENFORCE ONE MADE, CLEARLY AND PALPABLY, CONTRARY
TO THE VIEWS WE HAVE EXPRESSED, IT CANNOT BE DOUBTED THAT A COURT OF
EQUITY, IF ITS AID WERE INVOKED, WOULD PROMPTLY RESTRAIN HIM BY
INJUNCTION."  THIS WAS SAID IN A CASE WHERE A CREDITOR SOUGHT A
MANDAMUS TO COMPEL THE COMPTROLLER TO ORDER AN ASSESSMENT, HE HAVING
REFUSED SO TO DO ON THE GROUND THAT THE VERY TERMS OF THE STATUTE
FORBADE SUCH ACTION.  RELYING ON THIS EXPRESSION A NUMBER OF THE
FEDERAL COURTS HAVE SAID THAT, WHILE AN ASSESSMENT MAY NOT BE
COLLATERALLY ATTACKED, IT MAY BE AVOIDED BY DIRECT ATTACK FOR "CLEAR
ERROR OF LAW, FRAUD, OR MISTAKE."  FN9  RESPONDENTS ADMIT THIS
STATEMENT IS TOO BROAD.  OTHER COURTS HAVE SAID THAT THE ONLY GROUND OF
SUCCESSFUL ATTACK IS FRAUD ON THE PART OF THE COMPTROLLER.  FN10  THIS
CASE PRESENTS NO SUCH BASIS FOR RELIEF.  THE BILLS DO NOT CHARGE BAD
FAITH OR FRAUD ON THE PART OF THE COMPTROLLER.  THE AVERMENT THAT HIS
RULING WITH RESPECT TO THE CONTRACT OF FEBRUARY 17 AND THE CONSEQUENT
ACTION OF THE RECEIVER WERE "IN FRAUD" OF THE RIGHTS OF PENN AND
READING AND THEIR STOCKHOLDERS FALLS FAR SHORT OF ANY CHARGE OF ACTUAL
FRAUD.  INDEED NO SUGGESTION OF SUCH FRAUD WAS ADVANCED BY RESPONDENTS
EITHER IN BRIEF OR IN ARGUMENT. 

THE RESPONDENTS RELY UPON DECISIONS HOLDING THAT A BILL IN EQUITY OR
A WRIT OF MANDAMUS WILL LIE TO COMPEL AN EXECUTIVE OFFICER TO COMPLY
WITH THE PLAIN MANDATE OF A STATUTE.  THESE HAVE NO APPLICATION FOR
THEY DEAL WITH A SITUATION WHOLLY FOREIGN TO THAT HERE PRESENTED. 
WHERE A STATUTE VESTS NO DISCRETION IN AN EXECUTIVE OFFICER BUT TO ACT
UNDER A GIVEN SET OF CIRCUMSTANCES, OR FORBIDS HIS ACTING EXCEPT UPON
CERTAIN NAMED CONDITIONS, A COURT WILL COMPEL HIM TO ACT OR TO REFRAIN
FROM ACTING IF HE ESSAYS WHOLLY TO DISREGARD THE STATUTORY MANDATE; BUT
IF A DISCRETION IS VESTED IN HIM, AND HE IS TO ACT IN THE LIGHT OF THE
FACTS HE ASCERTAINS AND THE JUDGMENT HE FORMS, A COURT CANNOT RESTRAIN
HIM FROM ACTING ON THE GROUND THAT HE HAS EXCEEDED HIS JURISDICTION BY
REASON OF AN ERROR EITHER OF FACT OR LAW WHICH INDUCED HIS CONCLUSION. 
PLAINLY, THEREFORE, THE RESPONDENTS ARE WRONG IN ASSERTING THAT AS THE
FACTS SET FORTH IN THEIR BILL CHARGE THE COMPTROLLER WITH AN ERROR OF
LAW, HE EXCEEDED HIS AUTHORITY. 

THE RESPONDENTS FURTHER INSIST THAT THEIR ALLEGATION THAT THE
COMPTROLLER'S ACTION WAS "ARBITRARY," WHICH IS AMPLIFIED AND GIVEN
CONTENT BY THE FACTS ALLEGED AND ADMITTED BY THE MOTION TO DISMISS,
REQUIRES A DECREE AVOIDING THE ASSESSMENT.  THE EPITHET "ARBITRARY,"
USED IN THIS CONNECTION, CAN MEAN NO MORE THAN DO THE OTHER AVERMENTS
THAT THE COMPTROLLER, IN REACHING HIS CONCLUSION, "COMMITTED GRAVE
ERROR OF LAW" IN FAILING TO REGARD THE CONTRACT OF FEBRUARY 17 AS
EFFECTIVE.  IT WOULD BE ARBITRARY, IN THE PROPER SENSE OF THE TERM, FOR
AN OFFICIAL TO ACT IN THE TEETH OF A STATUTE OR STUBBORNLY TO REFUSE TO
ACT AT ALL WHERE A STATUTE COMMANDS ACTION, BUT WHERE HE ESSAYS TO
EXERCISE THE JURISDICTION CONFERRED UPON HIM, THOUGH HIS ERRORS MAY BE
SUBJECT TO SUBSEQUENT CORRECTION, THEY CANNOT BE ENJOINED AS AN
ARBITRARY EXERCISE OF HIS AUTHORITY.  TO HOLD OTHERWISE WOULD RENDER
ORDERLY ADMINISTRATIVE PROCEDURE IMPOSSIBLE. 

A REFERENCE TO THE SITUATION WITH WHICH THE COMPTROLLER WAS
CONFRONTED WHEN HIS RECEIVER TOOK CHARGE OF THE BANKS WILL SERVE TO
DEMONSTRATE THAT A CASE WAS PRESENTED CALLING FOR THE EXERCISE OF HIS
DISCRETION.  THE BILL ASSERTS THAT OVER A SUBSTANTIAL PERIOD SUBSEQUENT
TO THE TRANSFER OF PENN'S AND READING'S ASSETS TO FARMERS THESE WERE
INTERMINGLED WITH FARMERS' ASSETS.  IT AVERS THAT AN ATTEMPTED
SEGREGATION OF ASSETS WAS MADE UPON THE BASIS OF A REPORT OF BANK
EXAMINERS DATED APRIL 24, 1933, MORE THAN TWO MONTHS AFTER THE
TRANSFER; IT ALLEGES THAT, AT THE DATE OF TRANSFER, FARMERS OWED
$9,000,000 AGAINST WHICH IT HAD ASSETS OF $8,000,000 AND A POSSIBLE
RECOVERY BY WAY OF STOCKHOLDERS' LIABILITY OF AN ADDITIONAL MILLION
DOLLARS; IT FAILS TO STATE WHAT THE CONDITION OF FARMERS WAS WHEN A
CONSERVATOR WAS APPOINTED FOR IT; WHAT ITS CONDITION WAS WHEN A
RECEIVER WAS APPOINTED FOR IT; WHAT ITS FINANCIAL STATUS IS TODAY.  THE
PLEADER CONTENTS HIMSELF WITH THE STATEMENT OF A CONCLUSION THAT THE
"CLAIMS" OF PENN AND READING AGAINST FARMERS WERE, AT THE TIME OF
TRANSFER OF THEIR ASSETS, AND STILL ARE, SUFFICIENT IN AMOUNT TO PAY
ALL OF THOSE BANKS' CREDITORS.  BUT IF THE ALLEGATION IS TRUE, THE ONLY
CONCLUSION TO BE DRAWN FROM IT IS THAT IN ORDERING THE ASSESSMENT THE
COMPTROLLER ERRONEOUSLY ESTIMATED THE VALUE OF THE BANKS' ASSETS. 
WHATEVER MAY BE THOUGHT OF THE LEGALITY OF THE TRANSFER OF ASSETS
PURSUANT TO DIRECTORS' ACTION ON THE EVE OF INSOLVENCY, THE CREDITORS
OF PENN AND READING WERE NOT BOUND TO LOOK TO FARMERS AND MIGHT PREFER
TO LOOK TO THE ASSETS TRANSFERRED OR TO SO MUCH OF THEM AS COULD BE
TRACED.  AND THERE WELL MAY HAVE BEEN REASON FOR THE COMPTROLLER TO
DOUBT THE LEGAL EFFICACY OF THE TRANSFER IN THE FACE OF CREDITORS'
ATTACK.  THESE AND OTHER MATTERS WERE TO BE CONSIDERED BY HIM IN
ARRIVING AT AN INFORMED JUDGMENT AS TO THE AVAILABILITY AND VALUE OF
THE ASSETS OF PENN AND READING TO ANSWER THE CLAIMS OF THEIR
CREDITORS.  AS AN EXERCISE OF THE DISCRETIONARY POWER VESTED IN HIM,
THE COMPTROLLER'S ACTION MUST BE TREATED AS FINAL AND CONCLUSIVE AS TO
THE NECESSITY FOR AN ASSESSMENT. 

5.  IF THE COMPTROLLER'S DECISION WITH RESPECT TO THE CONTRACT OF
FEBRUARY 17 WAS ERRONEOUS AS MATTER OF LAW THE STOCKHOLDERS MAY OR MAY
NOT HAVE A REMEDY.  BUT THEIR REMEDY IS NOT TO ATTACK, OR SEEK TO EVADE
PAYMENT OF, THE ASSESSMENT.  THE COLLECTION OF THE ASSESSMENT CANNOT BE
MADE TO AWAIT THE OUTCOME OF LITIGATION OF THAT QUESTION.  MOREOVER,
IF, AS THEY ASSERT, THE COMPTROLLER'S JUDGMENT IS WRONG AND THE ASSETS
OF PENN AND READING, CONSISTING OF THEIR CLAIMS UNDER THE CONTRACT, ARE
SUFFICIENT TO PAY THEIR CREDITORS, THE AMOUNTS PAID PURSUANT TO THE
ASSESSMENTS WILL BE RETURNED TO STOCKHOLDERS IN FINAL LIQUIDATION. 
MEANTIME, HOWEVER, THE CREDITORS, THE PROTECTION OF WHOSE INTERESTS IS
THE PRIMARY OBJECT OF THE STATUTE, WILL HAVE BEEN PAID AND, AS IS
RIGHT, REIMBURSEMENT OF THE STOCKHOLDERS WILL AWAIT POSSIBLE
REALIZATION UPON ASSETS WHICH THE COMPTROLLER BELIEVES INSUFFICIENT TO
SATISFY THE CREDITORS. 

THE DECREES ARE REVERSED AND THE CAUSES REMANDED WITH INSTRUCTIONS TO
DISMISS THE BILLS.  REVERSED. 

FN1  R.S. SEC. 5151; ACT OF DEC. 23, 1913, C. 6, SEC. 23, 38 STAT.
273, U.S.C. TIT. 12, SECS. 63 AND 64. 

FN2  THE BILL IN NO. 124 ALLEGES THAT ON THE SAME DAY READING'S
ASSETS EXCEEDED IN VALUE ITS LIABILITIES OF APPROXIMATELY $9,000,000. 

FN3  88 F.(2D) 936. 

FN4  SEE U.S.C. TIT. 12, SEC. 33. 

FN5  COMPARE CITY NATIONAL BANK V. FULLER, 52 F.(2D) 870; WANNAMAKER
V. EDISTO NATIONAL BANK, 62 F.(2D) 696, 699; B.V. EMERY & CO. V.
WILKINSON, 72 F.(2D) 10, 12. 

FN6  C. 106, 13 STAT. 99. 

FN7  KENNEDY V. GIBSON, 8 WALL.  498, 505; CASEY V. GALLI, 94 U.S.
673, 681; BUSHNELL V. LELAND, 164 U.S. 684. 

FN8  LIBERTY NATIONAL BANK V. MCINTOSH, 16 F.(2D) 906; WANNAMAKER V.
EDISTO NATIONAL BANK, SUPRA; MEEKER V. BAXTER, 83 F.(2D) 183; DAVIS
TRUST CO. V. HARDEE, 85 F.(2D) 571; ACKER V. HAMILTON, 85 F.(2D) 574;
BARBOUR V. THOMAS, 86 F.(2D) 510; CHURCH V. HUBBARD, 91 F.(2D) 406. 

FN9  SEE, E.G., DEWEESE V. SMITH, 106 FED. 438, 445; B.V. EMERY & CO.
V. WILKINSON, 72 F.(2D) 10, 12; TRUSTEES V. PICHER, 90 F.(2D) 741, 743;
UNITED STATES NAT. BANK V. POLE, 2 F.SUPP.  153, 157; ANGENY V. KEUPER,
16 F.SUPP.  542, 543. 

FN10  O'CONNER V. WATSON, 81 F.(2D) 833, 836; MEEKER V. BAXTER, 83
F.(2D) 183, 186; DAVIS TRUST CO. V. HARDEE, 85 F.(2D) 571, 573; DUNN V.
O'CONNOR, 89 F.(2D) 820, 827. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :














LINCOLN CO. V. STEWART-WARNER CORP., 303 U.S. 545 


NO. 608.  ARGUED MARCH 10, 1938.  - DECIDED MARCH 28, 1938.  - 91 F.2D
757, REVERSED. 


1.  PATENT NO. 1,593,791, JULY 27, 1926, TO BUTLER, FOR THE
COMBINATION OF A HEADED NIPPLE, FOR RECEIVING LUBRICANT, A GREASE PUMP
AND A COUPLER HAVING A MULTI-JAWED CHUCK WHICH IS CLOSED OVER THE HEAD
OF THE NIPPLE BY THE PRESSURE OF THE GREASE ACTING ON A PISTON WITHIN
THE TUBE OF THE COUPLER, - HELD VOID AS CLAIMING MORE THAN THE
APPLICANT INVENTED.  P. 548. 

ASSUMING THAT THE COUPLER EMBRACED A PATENTABLE IMPROVEMENT IN THE
RESPECT THAT THE JAWS OF THE CHUCK ARE ACTUATED BY THE GREASE PRESSURE,
THE CHUCK FORM OF COUPLING AS WELL AS THE HEADED NIPPLE AND GREASE PUMP
ARE OLD IN THE ART AND PERFORM NO NEW FUNCTIONS IN THIS COMBINATION. 

2.  THE IMPROVEMENT OF ONE PART OF AN OLD COMBINATION GIVES NO RIGHT
TO CLAIM THAT IMPROVEMENT IN COMBINATION WITH OTHER OLD PARTS WHICH
PERFORM NO NEW FUNCTION IN THE COMBINATION.  ROGERS V. ALEMITE CORP.,
298 U.S. 415.  P. 549. 

LINCOLN ENGINEERING CO. V. STEWARTWARNER CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 302 U.S. 682, TO REVIEW THE AFFIRMANCE OF A DECREE, 15
F.SUPP.  571; 16 ID. 778, HOLDING THE PRESENT PETITIONER GUILTY OF
CONTRIBUTORY INFRINGEMENT IN SELLING HEADED FITTINGS OR NIPPLES FOR
LUBRICATION SUCH AS ARE DESCRIBED IN THE RESPONDENT'S PATENT AND WHICH
ARE USABLE, AND INTENDED TO BE USED, IN CONNECTION WITH THE GREASE GUN
AND COUPLER OF THE PATENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE DISTRICT COURT  FN1  AND THE CIRCUIT COURT OF APPEALS  FN2  HAVE
HELD THE PETITIONER GUILTY OF CONTRIBUTORY INFRINGEMENT OF THE BUTLER
PATENT NO. 1,593,791.  WE GRANTED CERTIORARI BECAUSE OF ALLEGED
CONFLICT WITH OUR DECISION IN ROGERS V. ALEMITE CORPORATION, REPORTED
WITH BASSICK MANUFACTURING CO. V. HOLLINGSHEAD CO., 298 U.S. 415.  LIKE
THAT IN THE ROGERS CASE, THE PATENT IN SUIT HAS TO DO WITH APPARATUS
FOR LUBRICATING BEARINGS, ESPECIALLY THOSE OF AUTOMOBILES, BY THE USE
OF A NIPPLE OR FITTING CONNECTED WITH THE BEARING, A GUN CONSISTING OF
A COMPRESSOR OR PUMP FOR PROPELLING THE LUBRICANT UNDER HIGH PRESSURE,
A HOSE OR CONDUIT TO CONNECT THE PUMP WITH THE FITTING, AND A MEANS OF
COUPLING THE CONDUIT TO THE FITTING TO MAKE A TIGHT JOINT DURING THE
OPERATION OF GREASING.  BOTH RESPONDENT AND PETITIONER MARKET APPARATUS
FOR PRESSURE LUBRICATION, INCLUDING FITTINGS AND GUNS.  THE CHARGE IS
THAT THE PETITIONER SELLS FITTINGS SUCH AS ARE DESCRIBED IN THE
RESPONDENT'S PATENT WHICH ARE USABLE, AND INTENDED TO BE USED, IN
CONNECTION WITH THE GUN AND COUPLER OF THE PATENT. 

WHAT WAS SAID IN OUR EARLIER DECISION IN RESPECT OF THE PRIOR ART
NEED NOT BE REPEATED.  BUTLER'S ALLEGED INVENTION IS IN THE SAME FIELD
AND DEALS WITH SIMILAR APPARATUS AS DID GULLBORG'S PATENT, CONSIDERED
IN THE ROGERS CASE.  AS THERE SHOWN, IT WAS OLD PRACTICE IN THE
LUBRICATION OF BEARINGS TO USE IN COMBINATION A FITTING CONNECTED WITH
THE BEARING THROUGH WHICH OIL OR GREASE WAS TO BE PROPELLED INTO THE
BEARING, AND A GUN, WHICH WAS JOINED TO THE FITTING BY A COUPLER.  IN
THE GREASING OPERATION THE COUPLER IS FASTENED TO THE HEAD OF THE
FITTING AND THE PUMP IS OPERATED TO DRIVE THE LUBRICANT THROUGH THE
FITTING TO THE BEARING.  NOT ONLY WAS THIS COMBINATION OLD BUT THE
ELEMENTS LONG USED IN THE ART VARIED IN DESIGN AND DIMENSION.  FITTINGS
WERE OF DIFFERENT SIZES AND SHAPES AND HAD DIVERSE ARRANGEMENTS FOR
THEIR CLOSURE WHEN NOT IN ACTUAL USE FOR THE INJECTION OF LUBRICANT. 
GUNS WERE OF MANY SIZES AND TYPES.  VARIOUS FORMS OF COUPLER HAD BEEN
USED FOR SEALING THE CONNECTION BETWEEN THE PUMP HOSE AND THE FITTING. 
IN THE ROGERS CASE IT APPEARED THAT FITTINGS WITH LUGS OR PINS TO BE
ENGAGED BY THE COUPLER WERE OLD BUT THAT GULLBORG HAD OBTAINED A PATENT
FOR A NEW FORM OF PIN FITTING THE NOVEL FEATURE OF WHICH WAS MEANS OF
AUTOMATIC CLOSURE AND OPENING FOR ADMITTANCE OF THE GREASE IN
CONNECTION WITH A PIN WHICH PASSED THROUGH THE BORE OF THE FITTING. 
THIS WAS NOT THE PATENT THERE IN SUIT.  GULLBORG ALSO OBTAINED A PATENT
IN WHICH THE NOVEL FEATURE OF CERTAIN CLAIMS WAS A BAYONET-SLOTTED
COUPLER SO DESIGNED AS TO COOPERATE WITH A PIN FITTING (INCLUDING ONE
OF THE TYPE COVERED BY HIS OTHER PATENT), TO PERMIT THE BUILDING UP OF
VERY HIGH PRESSURE AND, BY ITS OPERATION UPON DISENGAGEMENT, TO OBVIATE
EXUDATION OF GREASE ABOUT THE HEAD OF THE FITTING.  IN OTHER CLAIMS
GULLBORG CLAIMED A COMBINATION OF A PIN FITTING, OF THE TYPE COVERED BY
HIS FITTING PATENT, A PUMP, A DISCHARGE CONDUIT SECURED TO THE PUMP,
AND A HOLLOW COUPLING MEMBER OF ANY TYPE (WHETHER OLD AND UNPATENTED OR
OF THE IMPROVED CONSTRUCTION DISCLOSED IN THE PATENT) FOR RECEIVING THE
CLOSED END OF THE FITTING.  IN THE ROGERS CASE THE OWNER OF THE PATENT
ASSERTED THE SALE OF ANY GREASE GUN FOR USE WITH THE PATENTED PIN
FITTING OF GULLBORG, OR THE SALE OF ANY PIN FITTING, WHETHER OF THE
GULLBORG TYPE OR OF AN OLD TYPE, SUSCEPTIBLE OF USE WITH THE IMPROVED
GULLBORG COUPLER, CONSTITUTED CONTRIBUTORY INFRINGEMENT OF THE PATENT. 
WE HELD THAT AS THE COMBINATION OF PUMP, CONNECTING CONDUIT, COUPLER,
AND FITTING WAS OLD, GULLBORG COULD NOT, BY INVENTING A NEW AND
IMPROVED TYPE OF COUPLER OR FITTING CLAIM EITHER OF THESE IN
COMBINATION WITH THE OLD FORMS OF THE OTHER ELEMENTS SO AS TO EXCLUDE
THE PUBLIC FROM THE USE AND SALE OF THE OLD FORMS OF FITTINGS OR GREASE
GUNS EVEN THOUGH THESE MIGHT BE USED RESPECTIVELY WITH GULLBORG'S
IMPROVED COUPLER OR HIS IMPROVED PIN FITTINGS, BECAUSE, IN THE
COMBINATIONS CLAIMED, AN OLD-TYPE PIN FITTING, OR AN OLD-TYPE COUPLER
HAD NO NOVEL FUNCTION OVER THOSE OF THE PRIOR ART. WE SAID THAT IF
GULLBORG HAD INVENTED ANYTHING HE HAD INVENTED AN IMPROVED PIN FITTING
AND AN IMPROVED COUPLER AND THAT TO ALLOW HIM TO CLAIM EITHER IN
COMBINATION WITH OLD ELEMENTS WHICH PERFORMED NO NEW FUNCTION, WOULD BE
TO PERMIT HIM TO EXTEND THE MONOPOLY OF HIS INVENTION TO THOSE OLD AND
WELL KNOWN DEVICES. 

WITH THIS BACKGROUND WE TURN TO THE PATENT IN SUIT.  LIKE THAT OF
GULLBORG, THE CLAIM IS FOR A COMBINATION.  IT IS AS FOLLOWS: 

"2.  THE COMBINATION WITH A HEADED NIPPLE FOR RECEIVING LUBRICANT, OF
A LUBRICANT COMPRESSOR HAVING A COUPLING MEMBER FOR CONNECTING SAID
COMPRESSOR AND NIPPLE COMPRISING A CYLINDER, A PISTON MOVABLE WITHIN
THE CYLINDER, AND HAVING AN APERTURE FOR THE DISCHARGE OF LUBRICANT
THEREOF, AN APERTURED SEALING SEAT CARRIED BY SAID PISTON FOR
ENGAGEMENT WITH THE END OF THE NIPPLE, CONNECTING THE PISTON APERTURE
WITH A PASSAGE THROUGH THE NIPPLE, RADIALLY MOVABLE LOCKING ELEMENTS
CARRIED BY THE CYLINDER COACTING WITH THE NIPPLE AND ACTUATED BY SAID
PISTON FOR COMPRESSIVELY CLUTCHING THE ELEMENTS UPON THE NIPPLE WHEREBY
THE PRESSURE OF THE LUBRICANT ON SAID PISTON WILL MOVE THE PISTON TO
FORCIBLY COMPRESS SAID ELEMENTS WHILE THE LUBRICANT IS PASSING THROUGH
SAID CONNECTING PARTS." 

IN ITS PETITION FOR CERTIORARI, AND IN ARGUMENT UPON THE MERITS, THE
PETITIONER INSISTED THAT THE RESPONDENT'S COMMERCIAL FORM OF COUPLER
WAS NOT THAT OF THE BUTLER PATENT; THAT THE CIRCUIT COURT OF APPEALS
FOR THE EIGHTH CIRCUIT HAD SO HELD,  FN3  AND THAT THE COURTS BELOW
ERRED IN NOT REACHING A SIMILAR CONCLUSION.  IN VIEW OF THE GROUNDS OF
OUR DECISION WE FIND IT UNNECESSARY TO PASS UPON THIS QUESTION. 

THE PETITIONER'S PRINCIPAL CONTENTION IS THAT OUR DECISION IN THE
ROGERS CASE IS CONTROLLING.  FN4  WE SO HOLD.  AS HAS BEEN SAID, THE
COMBINATION OF ELEMENTS DISCLOSED IS OLD IN THE ART. AS THE CIRCUIT
COURT OF APPEALS HELD, A HEADED NIPPLE OR FITTING CONNECTED WITH THE
BEARING, AND TO BE COUPLED TO THE CONDUIT FROM THE GREASE GUN, IS OLD
AND UNPATENTABLE.  A COMPRESSOR OR PUMP FOR PROPELLING LUBRICANT IS OLD
AND UNPATENTABLE AS SUCH.  THE INVENTION, IF ANY, WHICH BUTLER MADE WAS
AN IMPROVEMENT IN WHAT HE STYLES IN HIS SPECIFICATIONS THE "CHUCK" AND
IN HIS CLAIM A "COUPLING MEMBER."  IT IS NOT DENIED THAT MULTI-JAWED
CHUCKS HAD BEEN USED IN INDUSTRY AND AS COUPLERS IN LUBRICATING
APPARATUS.  BUTLER MAY HAVE DEVISED A PATENTABLE IMPROVEMENT IN SUCH A
CHUCK IN THE RESPECT THAT THE MULTIPLE JAWS IN HIS DEVICE ARE CLOSED
OVER THE NIPPLE BY THE PRESSURE OF THE GREASE, BUT WE THINK HE DID NO
MORE THAN THIS.  AS WE SAID OF GULLBORG IN THE ROGERS CASE, HAVING HIT
UPON THIS IMPROVEMENT HE DID NOT PATENT IT AS SUCH BUT ATTEMPTED TO
CLAIM IT IN COMBINATION WITH OTHER OLD ELEMENTS WHICH PERFORMED NO NEW
FUNCTION IN HIS CLAIMED COMBINATION.  THE PATENT IS THEREFORE VOID AS
CLAIMING MORE THAN THE APPLICANT INVENTED.  THE MERE AGGREGATION OF A
NUMBER OF OLD PARTS OR ELEMENTS WHICH, IN THE AGGREGATION, PERFORM OR
PRODUCE NO NEW OR DIFFERENT FUNCTION OR OPERATION THAN THAT THERETOFORE
PERFORMED OR PRODUCED BY THEM, IS NOT PATENTABLE INVENTION.  FN5  AND
THE IMPROVEMENT OF ONE PART OF AN OLD COMBINATION GIVES NO RIGHT TO
CLAIM THAT IMPROVEMENT IN COMBINATION WITH OTHER OLD PARTS WHICH
PERFORM NO NEW FUNCTION IN THE COMBINATION.  FN6  THOUGH THE RESPONDENT
SO CONCEDES, IT URGES THAT, IN THE COMBINATION OF THE BUTLER PATENT,
THE HEADED NIPPLE PERFORMS A NEW AND DIFFERENT FUNCTION FROM THAT WHICH
IT HAS HERETOFORE PERFORMED, IN OTHER COMBINATIONS, IN THAT, WHEN THE
COUPLER IS WITHDRAWN FROM THE NIPPLE, AT THE END OF THE GREASING
OPERATION, THE ROUNDED HEAD OF THE NIPPLE "COCKS" THE JAWS OF THE
COUPLER FOR THE NEXT OPERATION.  THE SUGGESTION SEEMS TO BE AN
AFTERTHOUGHT.  NO SUCH FUNCTION OF THE NIPPLE IS HINTED AT IN THE
SPECIFICATIONS OF THE PATENT.  IF THIS WERE SO VITAL AN ELEMENT IN THE
FUNCTIONING OF THE APPARATUS IT IS STRANGE THAT ALL MENTION OF IT WAS
OMITTED.  FN7 MOREOVER, THE ARGUMENT IS UNSOUND SINCE THE OLD ART
INCLUDES INSTANCES WHERE THE HEAD OF A NIPPLE OR FITTING PERFORMS A
SIMILAR FUNCTION WHEN THE CHUCK IS DISENGAGED FROM IT.  THE SAME
ARGUMENT WAS UNAVAILING IN THE ROGERS CASE.  IT WAS THERE CONTENDED
THAT THE PIN FITTING OF THE GULLBORG PATENT PERFORMED A NEW FUNCTION IN
CAUSING THE BENEFICIAL OPERATION OF THE COUPLER AT THE MOMENT OF
DISENGAGEMENT.  WE COMMENTED UPON THE MATTER THUS:  "THE DESIGN OF THE
BAYONET SLOTS IS SUCH THAT, IN UNCOUPLING, THE COUPLING MEMBER OF THE
GUN WILL AT FIRST BE MOVED SLIGHTLY FORWARD ON THE PIN FITTING THUS
BACKING UP THE PERFORATED WASHER IN THE BORE OF THE COUPLER."  BUT
THERE, AS IN THE PRESENT CASE, IT WAS THE PECULIAR AND IMPROVED
MECHANISM OF THE COUPLER WHICH BROUGHT ABOUT THE RESULT AND NOT THE
FORM OF THE FITTING.  WE SUPPOSE THAT A HEADED NIPPLE HAS ALWAYS BEEN
SO HEADED IN ORDER THAT THE JAWS OF THE CHUCK MAY SLIP OVER THE HEAD IN
THE COUPLING AND UNCOUPLING OPERATION.  THE WEAKNESS OF THE
RESPONDENT'S POSITION IS WELL ILLUSTRATED BY WHAT DEVELOPED AT
ARGUMENT.  WHEN INTERROGATED AS TO HOW IN THE CLAIMED COMBINATION THE
FUNCTION OF THE NIPPLE COULD BE THOUGHT NOVEL IN ANY DIFFERENT SENSE
THAN THE FUNCTION OF THE PUMP, COUNSEL REPLIED THAT THE PUMP PERFORMED
A NOVEL FUNCTION BECAUSE THE PRESSURE IT GENERATED FORCED FORWARD THE
PISTON IN THE COUPLER AND CAUSED THE MOVABLE JAWS TO ENGAGE THE
FITTING.  IF THIS ARGUMENT IS SOUND, THE RESPONDENT MAY CONVICT EVERY
ONE WHO SELLS A GREASE PUMP OF CONTRIBUTORY INFRINGEMENT.  THE ANSWER
IS THE SAME AS IN THE CASE OF THE HEADED NIPPLE.  THE FUNCTION OF A
PUMP HAS ALWAYS BEEN TO FORCE A FLUID OR A GREASE THROUGH A CONDUIT. 
THE FACT THAT THIS FUNCTION OF THE PUMP IS UTILIZED IN BUTLER'S
IMPROVED FORM OF COUPLER NOT ONLY TO CONVEY THE LUBRICANT TO THE
BEARING BUT TO OPERATE THE JAWS OF THE CHUCK DOES NOT ALTER THE
FUNCTION OF THE PUMP.  THE INVENTION, IF ANY, LIES IN THE IMPROVEMENT
IN THE COUPLING DEVICE ALONE. 

THE COURTS BELOW AND THE RESPONDENT RELY UPON LEEDS & CATLIN CO. V.
VICTOR TALKING MACHINE CO., 213 U.S. 301, 325.  IN THE ROGERS CASE WE
HELD THAT AUTHORITY NOT CONTROLLING.  BERLINER DISCLOSED AN ENTIRELY
NOVEL PRINCIPLE; HE UTILIZED THE FLAT DISC HAVING A SMOOTH BOTTOMED
GROOVE WITH SPIRAL WAVES IN ITS SIDES NOT ONLY TO AGITATE THE NEEDLE
CONNECTED TO THE DIAPHRAGM, BUT, IN COMBINATION WITH A SWINGING ARM, TO
PROPEL THE NEEDLE LENGTHWISE THE GROOVE.  IN HIS COMBINATION, THE DISC
NOT ONLY PERFORMED A NEW FUNCTION BUT PERFORMED IT IN COMBINATION WITH
ANOTHER NEW ELEMENT,  - THE SWINGING ARM WHICH CARRIED THE NEEDLE. 

WE CONCLUDE THAT BUTLER'S EFFORT, BY THE USE OF A COMBINATION CLAIM,
TO EXTEND THE MONOPOLY OF HIS INVENTION OF AN IMPROVED FORM OF CHUCK OR
COUPLER TO OLD PARTS OR ELEMENTS HAVING NO NEW FUNCTION WHEN OPERATED
IN CONNECTION WITH THE COUPLER RENDERS THE CLAIM VOID.  DECREE
REVERSED. 

FN1  15 F.SUPP.  571; 16 F.SUPP.  778. 

FN2  91 F.(2D) 757. 

FN3  STEWART-WARNER CORP. V. JIFFY LUBRICATOR CO., 81 F.(2D) 786. 

FN4  THE DISTRICT COURT FOR WESTERN PENNSYLVANIA HAS SO HELD:
STEWART-WARNER CORP. V. ROGERS, 15 F.SUPP.  410; AND SEE JACQUES V.
UNIVERSAL LUBRICATING SYSTEMS, 22 F.SUPP.  458. 

FN5  PICKERING V. MCCULLOUGH, 104 U.S. 310; BURT V. EVORY, 133 U.S.
349; BRINKERHOFF V. ALOE, 146 U.S. 515; OFFICE SPECIALTY MFG. CO. V.
FENTON METALLIC MFG. CO., 174 U.S. 492. 

FN6  HEALD V. RICE, 104 U.S. 737, 754; UNDERWOOD V. GERBER, 149 U.S.
224, 227, 229; DEERING V. WINONA HARVESTER WORKS, 155 U.S. 286, 302;
PERRY V. CO-OPERATIVE FOUNDRY CO., 12 FED. 436, 438; YALE LOCK MFG. CO.
V. BERKSHIRE NAT. BANK, 17 FED. 531, 532, 535; TROY LAUNDRY MACHINERY
CO. V. BUNNELL, 27 FED. 810, 813; GATES IRON-WORKS V. FRASER, 42 FED.
49, AFFIRMED 153 U.S. 332; ABBOTT MACHINE CO. V. BONN, 51 FED. 223,
226; IN RE MCNEILL, 20 APP. D.C. 294; IN RE RATICAN, 36 APP. D.C. 95;
KURSHEEDT MFG. CO. V. NADAY, 103 FED. 948; LANGAN V. WARREN AXE & TOOL
CO., 184 FED. 720, 721; IN RE BLISS, 39 APP. D.C. 453; ROBINSON V.
TUBULAR WOVEN FABRIC CO., 248 FED. 526, 542; TROY WAGON WORKS CO. V.
OHIO TRAILER CO., 274 FED. 612, 621; GENERAL ELECTRIC CO. V. OHIO BRASS
CO., 277 FED. 917, 924; RADIO CORPORATION V. LORD, 28 F.(2D) 257, 260;
SCHILLER V. ROBERTSON, 28 F.(2D) 301, 305; FRUEHAUF TRAILER CO. V.
HIGHWAY TRAILER CO., 54 F.(2D) 691, 709; IN RE GERMANTOWN TRUST CO., 57
F.(2D) 365, 366; MCGRATH HOLDING CORP. V. ANZELL, 58 F.(2D) 205; KODEL
ELECTRIC CO. V. WARREN CLOCK CO., 62 F.(2D) 692, 695; ALEMITE CORP. V.
LUBRAIR CORP., 62 F.(2D) 898, 900; IN RE REED, 76 F.(2D) 907, 909. 
FN7  UNION EDGE SETTER CO. V. KEITH, 139 U.S. 530, 539; BALL & SOCKET
FASTENER CO. V. KRAETZER, 150 U.S. 111, 116; MACCOLL V. KNOWLES LOOM
WORKS, 95 FED. 982; KURSHEEDT MFG. CO. V. NADAY, 103 FED. 948, 950. 

MR. CHIEF JUSTICE HUGHES AND MR. JUSTICE CARDOZO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :







NEW NEGRO ALLIANCE V. GROCERY CO., 303 U.S. 552 


NO. 511.  ARGUED MARCH 2, 3, 1938.  - DECIDED MARCH 28, 1938.  - 92 F.2D
510, REVERSED. 


AN ASSOCIATION OF NEGROES, ORGANIZED FOR THE MUTUAL IMPROVEMENT OF ITS
MEMBERS AND THE PROMOTION OF CIVIC, EDUCATIONAL, BENEVOLENT, AND
CHARITABLE ENTERPRISES, REQUESTED A GROCERY COMPANY TO ADOPT A POLICY
OF EMPLOYING NEGRO CLERKS, IN THE COURSE OF PERSONNEL CHANGES, IN
CERTAIN STORES OF THE COMPANY PATRONIZED LARGELY BY COLORED PEOPLE BUT
IN WHICH NO COLORED CLERKS WERE EMPLOYED.  THE REQUEST WAS IGNORED;
WHEREUPON THE ORGANIZATION CAUSED A PICKET, BEARING A PLACARD READING
"DO YOUR PART.  BUY WHERE YOU CAN WORK.  NO NEGROES EMPLOYED HERE."  TO
PATROL IN FRONT OF ONE OF THE STORES, ON ONE DAY, AND CAUSED, OR
THREATENED TO CAUSE, A SIMILAR PATROL OF TWO OTHER STORES.  HELD: 

1.  THAT, WITHIN THE MEANING OF THE ACT OF MAR. 23, 1932, SEC. 13; 29
U.S.C., SEC. 113 - THE "NORRIS-LAGUARDIA ACT" - THERE WAS A "LABOR
DISPUTE" IN WHICH THE NEGRO ORGANIZATION AND ITS OFFICERS WERE "PERSONS
INTERESTED."  P. 559. 

THE FACT THAT THE DISPUTE WAS "RACIAL," IN THAT IT GREW FROM RACIAL
DISCRIMINATION, DOES NOT REMOVE THE CASE FROM THE SCOPE OF THE ACT. 

2.  UNDER SECS. 4 AND 7 OF THE ACT, THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO ISSUE AN INJUNCTION IN THE PREMISES, AGAINST THE NEGRO
ORGANIZATION AND ITS OFFICERS AT THE SUIT OF THE GROCERY COMPANY.  P.
561. 

NEW NEGRO ALLIANCE V. SANITARY GROCERY CO.* 

*THE OPINION HEREIN IS REPORTED AS AMENDED BY ORDER OF APRIL 25,
1938, SEE 304 U.S. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 302 U.S. 679, TO REVIEW THE AFFIRMANCE OF A DECREE
ENJOINING THE PRESENT PETITIONER FROM PICKETING, BOYCOTTING, ETC. THE
STORES OF THE RESPONDENT.  THE CASE WAS DECIDED BELOW ON BILL AND
ANSWER. 

THE COURT BELOW PROPERLY HELD THAT THE MATTER IN CONTROVERSY HEREIN
WAS NOT COMPREHENDED BY THE LABOR DISPUTES ACT OF MARCH 23, 1932, GREEN
V. SAMUELSON, 168 MD. 421; BECK-HAZARD SHOE CORP. V. JOHNSON, 274 N.Y.
SUPP. 946. 

THE RELATIONSHIP OF EMPLOYER AND EMPLOYEE MUST EXIST, OR A DISPUTE
MUST GROW OUT OF THAT RELATIONSHIP, BEFORE THE LABOR DISPUTES ACT HAS
APPLICATION.  UNITED ELECTRIC COAL COMPANIES V. RICE, 80 F.2D 1; KEITH
THEATRE V. VACHON, 187 A. 692. 

PETITIONERS, HAVING ADMITTED THE ACT OF PICKETING THE STORES OF THE
RESPONDENT, WERE PROPERLY ENJOINED BY THE TRIAL COURT.  JONAS GLASS CO.
V. GLASS BOTTLE BLOWER'S ASSN., 72 N.J. EQ. 653; PIERCE V. STABLEMEN'S
UNION, 165 CAL. 70; AMERICAN STEEL FOUNDRIES V. TRI-CITY CENTRAL TRADES
COUNCIL, 257 U.S. 184; ELKIND & SONS V. RETAIL CLERKS I. PROTECTIVE
ASSN., 169 A. 494; TRUAX V. CORRIGAN, 257 U.S. 312; BECK V. TEAMSTERS'
PROTECTIVE UNION, 118 MICH. 520. 

THE PROPOSITION IS WELL ESTABLISHED THAT A COMBINATION LOOKING
TOWARDS THE DOMINATION OR RUINATION OF THE BUSINESS OF ANOTHER BY
FRAUD, VIOLENCE OR COERCION IS FUNDAMENTALLY UNLAWFUL.  WAITRESSES
UNION V. BENISH RESTAURANT CO., 6 F.2D 568; KINLOCH TELEPHONE CO. V.
LOCAL UNION NO. 2, 275 F. 241; QUINLIVAN V. DAIL-OVERLAND CO., 274 F.
56. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE MATTER IN CONTROVERSY IS WHETHER THE CASE MADE BY THE PLEADINGS
INVOLVES OR GROWS OUT OF A LABOR DISPUTE WITHIN THE MEANING OF SEC. 13
OF THE NORRIS-LA GUARDIA ACT.  FN1 

THE RESPONDENT, BY BILL FILED IN THE DISTRICT COURT OF THE DISTRICT
OF COLUMBIA, SOUGHT AN INJUNCTION RESTRAINING THE PETITIONERS AND THEIR
AGENTS FROM PICKETING ITS STORES AND ENGAGING IN OTHER ACTIVITIES
INJURIOUS TO ITS BUSINESS.  THE PETITIONERS ANSWERED, THE CAUSE WAS
HEARD UPON BILL AND ANSWER, AND AN INJUNCTION WAS AWARDED.  THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA AFFIRMED THE
DECREE.  FN2  THE IMPORTANCE OF THE QUESTION PRESENTED AND ASSERTED
CONFLICT WITH THE DECISIONS OF THIS AND OTHER FEDERAL COURTS MOVED US
TO GRANT CERTIORARI. 

AS THE CASE WAS HEARD UPON THE BILL AND A VERIFIED ANSWER THE FACTS
UPON WHICH DECISION MUST REST ARE THOSE SET FORTH IN THE BILL AND
ADMITTED OR NOT DENIED BY THE ANSWER AND THOSE AFFIRMATIVELY SET UP IN
THE ANSWER. 

THE FOLLOWING FACTS ALLEGED IN THE BILL ARE ADMITTED BY THE ANSWER. 
RESPONDENT, A DELAWARE CORPORATION, OPERATES 255 RETAIL GROCERY, MEAT,
AND VEGETABLE STORES, A WAREHOUSE AND A BAKERY IN THE DISTRICT OF
COLUMBIA AND EMPLOYS BOTH WHITE AND COLORED PERSONS.  APRIL 3, 1936, IT
OPENED A NEW STORE AT 1936 ELEVENTH STREET, N.W., INSTALLING PERSONNEL
HAVING AN ACQUAINTANCE WITH THE TRADE IN THE VICINITY.  PETITIONER, THE
NEW NEGRO ALLIANCE, IS A CORPORATION COMPOSED OF COLORED PERSONS,
ORGANIZED FOR THE MUTUAL IMPROVEMENT OF ITS MEMBERS AND THE PROMOTION
OF CIVIC, EDUCATIONAL, BENEVOLENT, AND CHARITABLE ENTERPRISES.  THE
INDIVIDUAL PETITIONERS ARE OFFICERS OF THE CORPORATION.  THE RELATION
OF EMPLOYER AND EMPLOYES DOES NOT EXIST BETWEEN THE RESPONDENT AND THE
PETITIONERS OR ANY OF THEM.  THE PETITIONERS ARE NOT ENGAGED IN ANY
BUSINESS COMPETITIVE WITH THAT OF THE RESPONDENT, AND THE OFFICERS,
MEMBERS, OR REPRESENTATIVES OF THE ALLIANCE ARE NOT ENGAGED IN THE SAME
BUSINESS OR OCCUPATION AS THE RESPONDENT OR ITS EMPLOYES. 

AS TO OTHER MATTERS OF FACT, THE STATE OF THE PLEADINGS MAY BE
BRIEFLY SUMMARIZED.  THE BILL ASSERTS:  THE PETITIONERS HAVE MADE
ARBITRARY AND SUMMARY DEMANDS UPON THE RESPONDENT THAT IT ENGAGE AND
EMPLOY COLORED PERSONS IN MANAGERIAL AND SALES POSITIONS IN THE NEW
STORE AND IN VARIOUS OTHER STORES; IT IS ESSENTIAL TO THE CONDUCT OF
THE BUSINESS THAT RESPONDENT EMPLOY EXPERIENCED PERSONS IN ITS STORES
AND COMPLIANCE WITH THE ARBITRARY DEMANDS OF DEFENDANTS WOULD INVOLVE
THE DISCHARGE OF WHITE EMPLOYES AND THEIR REPLACEMENT WITH COLORED; IT
IS IMPERATIVE THAT RESPONDENT BE FREE IN THE SELECTION AND CONTROL OF
PERSONS EMPLOYED BY IT WITHOUT INTERFERENCE BY THE PETITIONERS OR
OTHERS; PETITIONERS HAVE WRITTEN RESPONDENT LETTERS THREATENING BOYCOTT
AND RUINATION OF ITS BUSINESS AND NOTICES THAT BY MEANS OF
ANNOUNCEMENTS, MEETINGS AND ADVERTISING THE PETITIONERS WILL CIRCULATE
STATEMENTS THAT RESPONDENT IS UNFAIR TO COLORED PEOPLE AND TO THE
COLORED RACE AND, CONTRARY TO FACT, THAT RESPONDENT DOES NOT EMPLOY
COLORED PERSONS; RESPONDENT HAS NOT ACCEDED TO THESE DEMANDS.  THE
ANSWER ADMITS THE RESPONDENT HAS NOT ACCEDED TO THE PETITIONERS'
DEMANDS, BUT DENIES THE OTHER ALLEGATIONS AND STATES THAT THE ALLIANCE
AND ITS AGENTS HAVE REQUESTED ONLY THAT RESPONDENT, IN THE REGULAR
COURSE OF PERSONNEL CHANGES IN ITS RETAIL STORES, GIVE EMPLOYMENT TO
NEGROES AS CLERKS, PARTICULARLY IN STORES PATRONIZED LARGELY BY COLORED
PEOPLE; THAT THE PETITIONERS HAVE NOT REQUESTED THE DISCHARGE OF WHITE
EMPLOYES NOR SOUGHT ACTION WHICH WOULD INVOLVE THEIR DISCHARGE.  IT
DENIES THE MAKING OF THE THREATS DESCRIBED AND ALLEGES THE ONLY
REPRESENTATIONS THREATENED BY THE ALLIANCE OR ITS AUTHORIZED AGENTS ARE
TRUE REPRESENTATIONS THAT NAMED STORES OF THE RESPONDENT DO NOT EMPLOY
NEGROES AS SALES PERSONS AND THAT THE PETITIONERS HAVE THREATENED NO
MORE THAN THE USE OF LAWFUL AND PEACEABLE PERSUASION OF MEMBERS OF THE
COMMUNITY TO WITHHOLD PATRONAGE FROM PARTICULAR STORES AFTER THE
RESPONDENT'S REFUSAL TO ACKNOWLEDGE PETITIONER'S REQUESTS THAT IT ADOPT
A POLICY OF EMPLOYING NEGRO CLERKS IN SUCH STORES IN THE REGULAR COURSE
OF PERSONNEL CHANGES. 

THE BILL FURTHER ALLEGES THAT THE PETITIONERS AND THEIR AUTHORIZED
REPRESENTATIVES "HAVE UNLAWFULLY CONSPIRED WITH EACH OTHER TO PICKET,
PATROL, BOYCOTT, AND RUIN THE PLAINTIFF'S BUSINESS IN SAID STORES, AND
PARTICULARLY IN THE STORE LOCATED AT 1936 ELEVENTH STREET, NORTHWEST"
AND, "IN AN EFFORT TO FULFILL THEIR THREATS OF COERCION AND
INTIMIDATION, ACTUALLY HAVE CAUSED THE SAID STORE TO BE PICKETED OR
PATROLLED DURING HOURS OF BUSINESS OF THE PLAINTIFF, BY THEIR MEMBERS,
REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES"; THE
PICKETS CARRYING LARGE PLACARDS CHARGING RESPONDENT WITH BEING UNFAIR
TO NEGROES AND READING:  "DO YOUR PART.  BUY WHERE YOU CAN WORK.  NO
NEGROES EMPLOYED HERE."  FOR THE PURPOSE OF INTIMIDATING AND COERCING
PROSPECTIVE CUSTOMERS FROM ENTERING THE RESPONDENT'S STORE UNTIL THE
RESPONDENT ACCEDES TO THE PETITIONERS' DEMANDS.  "SAID DEFENDANTS,
THEIR PICKETS OR PATROLS OR SOME OF THEM HAVE JOSTLED AND COLLIDED WITH
PERSONS IN FRONT OF THE SAID STORE AND HAVE PHYSICALLY HINDERED,
OBSTRUCTED, INTERFERED WITH, DELAYED, MOLESTED, AND HARASSED PERSONS
DESIRING TO ENTER THE PLACE OF BUSINESS OF THE PLAINTIFF CORPORATION;
SAID PICKETS, OR SOME OF THEM, HAVE ATTEMPTED TO DISSUADE AND PREVENT
PERSONS FROM ENTERING PLAINTIFF'S PLACE OF BUSINESS; SAID DEFENDANTS,
THEIR PICKETS OR PATROLS ARE DISORDERLY WHILE PICKETING OR PATROLLING,
AND ATTRACT CROWDS TO GATHER IN FRONT OF SAID STORE, AND ENCOURAGE THE
CROWDS OR MEMBERS THEREOF TO BECOME DISORDERLY, AND TO HARASS, AND
OTHERWISE ANNOY, INTERFERE WITH AND ATTEMPT TO DISSUADE, AND TO PREVENT
PERSONS FROM ENTERING THE PLACE OF BUSINESS OF THE PLAINTIFF, THE
DISORDER THEREBY PREVENTING THE PROPER CONDUCT OF AND OPERATION OF THE
PLAINTIFF'S BUSINESS.  DEFENDANTS HAVE THREATENED TO USE SIMILAR
TACTICS OF PICKETING AND PATROLLING AS AFORESAID IN FRONT OF THE
SEVERAL OTHER STORES OF THE PLAINTIFF."  FOUR PHOTOGRAPHS ALLEGED TO
PORTRAY THE PICKETING ARE ANNEXED AS EXHIBITS TO THE BILL.  ONE OF THEM
SHOWS A MAN CARRYING A SANDWICH PLACARD ON THE SIDEWALK AND NO ONE ELSE
WITHIN THE RANGE OF THE CAMERA.  IN ANOTHER, TWO CHILDREN ARE SEEN
BESIDE THE PICKET; IN ANOTHER, TWO ADULTS; IN THE FOURTH, ONE ADULT
ENTERING RESPONDENT'S STORE AT A DISTANCE FROM THE PICKET AND WITHOUT
APPARENT INTERFERENCE.  THE ANSWER DENIES ALL THESE ALLEGATIONS SAVE
THAT IT ADMITS THE PETITIONERS DID, DURING APRIL 4, 1936, AND AT NO
OTHER TIME, CAUSE THE STORE AT 1936 ELEVENTH STREET, N.W., TO BE
CONTINUOUSLY PICKETED BY A SINGLE PERSON CARRYING A PLACARD EXHIBITING
THE WORDS QUOTED BY THE BILL; AND THE PETITIONERS, PRIOR TO THE ACTS
COMPLAINED OF IN THE BILL, PICKETED, OR EXPRESSED THE INTENTION OF
PICKETING, TWO OTHER STORES.  IT ADMITS THAT THE PHOTOGRAPHS CORRECTLY
REPRESENT THE PICKETING OF APRIL 4, 1936.  THE ANSWER AVERS THE
INFORMATION CARRIED ON THE PLACARDS WAS TRUE, WAS NOT INTENDED TO, AND
DID NOT IN FACT, INTIMIDATE CUSTOMERS; THERE WAS NO PHYSICAL
OBSTRUCTION, INTERFERENCE OR HARASSMENT OF ANYONE DESIRING TO ENTER THE
STORE; THERE WAS NO DISORDERLY CONDUCT, AND THE PICKETING DID NOT CAUSE
OR ENCOURAGE CROWDS TO GATHER IN FRONT OF THE STORE. 

THE BILL STATES:  "AS EVIDENCE OF THE WIDESPREAD AND CONCERTED ACTION
PLANNED BY THE DEFENDANTS HEREIN, THEY HAVE CAUSED TO BE PLACED OR HAVE
PERMITTED TO APPEAR IN THE WASHINGTON TRIBUNE  ... THE FOLLOWING
STATEMENTS  ..."  THERE FOLLOW QUOTATIONS FROM ARTICLES APPEARING IN
THE NEWSPAPER PURPORTING TO REPORT MEETINGS OF THE ALLIANCE AND
SPEECHES MADE THEREAT.  THERE IS NO STATEMENT THAT THE FACTS REPORTED
IN THE ARTICLES ARE TRUE.  THE ANSWER DENIES THAT ANY OF THE
PETITIONERS IS CONNECTED WITH OR EXERCISES ANY CONTROL OVER THE
WASHINGTON TRIBUNE OR CAUSED OR PERMITTED THAT NEWSPAPER TO PUBLISH ANY
ARTICLE OR NEWS ITEM WHATSOEVER OR IN ANY WAY ACTED IN CONCERT WITH THE
NEWSPAPER IN THOSE PUBLICATIONS. 

THE BILL ASSERTS THAT PETITIONERS AND THEIR REPRESENTATIVES,
OFFICERS, AND AGENTS, UNLAWFULLY CONSPIRED TO PICKET, BOYCOTT, AND RUIN
THE RESPONDENT'S BUSINESS IN ITS STORES, PARTICULARLY THE STORE AT 1936
ELEVENTH STREET.  THIS IS DENIED BY THE ANSWER. 

THE BILL SAYS THAT THE DESCRIBED CONDUCT OF PETITIONERS WILL CONTINUE
UNTIL RESPONDENT COMPLIES WITH PETITIONERS' DEMANDS; IS AND WILL
CONTINUE TO BE DANGEROUS TO THE LIFE AND HEALTH OF PERSONS ON THE
HIGHWAY, TO PROPERTY THEREON, AND TO RESPONDENT'S EMPLOYES, ITS
PROPERTY, AND BUSINESS AND WILL CAUSE RESPONDENT IRREPARABLE INJURY;
THE PETITIONERS' ACTS ARE UNLAWFUL, CONSTITUTE A CONSPIRACY IN
RESTRAINT OF TRADE, AND, IF CONTINUED, WILL RUIN THE RESPONDENT'S
BUSINESS.  THE ANSWER DENIES THESE ALLEGATIONS SO FAR AS THEY
CONSTITUTE ASSERTIONS OF FACT. 

THE CASE, THEN, AS IT STOOD FOR JUDGMENT, WAS THIS:  THE PETITIONERS
REQUESTED THE RESPONDENT TO ADOPT A POLICY OF EMPLOYING NEGRO CLERKS IN
CERTAIN OF ITS STORES IN THE COURSE OF PERSONNEL CHANGES; THE
RESPONDENT IGNORED THE REQUEST AND THE PETITIONERS CAUSED ONE PERSON TO
PATROL IN FRONT OF ONE OF THE RESPONDENT'S STORES ON ONE DAY CARRYING A
PLACARD WHICH SAID:  "DO YOUR PART.  BUY WHERE YOU CAN WORK.  NO
NEGROES EMPLOYED HERE."  AND CAUSED OR THREATENED A SIMILAR PATROL OF
TWO OTHER STORES OF RESPONDENT.  THE INFORMATION BORNE BY THE PLACARD
WAS TRUE.  THE PATROLLING DID NOT COERCE OR INTIMIDATE RESPONDENT'S
CUSTOMERS; DID NOT PHYSICALLY OBSTRUCT, INTERFERE WITH, OR HARASS
PERSONS DESIRING TO ENTER THE STORE, THE PICKET ACTED IN AN ORDERLY
MANNER, AND HIS CONDUCT DID NOT CAUSE CROWDS TO GATHER IN FRONT OF THE
STORE. 

THE TRIAL JUDGE WAS OF THE VIEW THAT THE LAWS RELATING TO LABOR
DISPUTES HAD NO APPLICATION TO THE CASE.  HE ENTERED A DECREE ENJOINING
THE PETITIONERS AND THEIR AGENTS AND EMPLOYES FROM PICKETING OR
PATROLLING ANY OF THE RESPONDENT'S STORES, BOYCOTTING OR URGING OTHERS
TO BOYCOTT RESPONDENT; RESTRAINING THEM, WHETHER BY INDUCEMENTS,
THREATS, INTIMIDATION OR ACTUAL OR THREATENED PHYSICAL FORCE FROM
HINDERING ANY PERSON ENTERING RESPONDENT'S PLACES OF BUSINESS, FROM
DESTROYING OR DAMAGING OR THREATENING TO DESTROY OR DAMAGE RESPONDENT'S
PROPERTY AND FROM AIDING OR ABETTING OTHERS IN DOING ANY OF THE
PROHIBITED THINGS.  THE COURT OF APPEALS THOUGHT THAT THE DISPUTE WAS
NOT A LABOR DISPUTE WITHIN THE NORRIS-LAGUARDIA ACT BECAUSE IT DID NOT
INVOLVE TERMS AND CONDITIONS OF EMPLOYMENT SUCH AS WAGES, HOURS,
UNIONIZATION OR BETTERMENT OF WORKING CONDITIONS, AND THAT THE TRIAL
COURT, THEREFORE, HAD JURISDICTION TO ISSUE THE INJUNCTION.  WE THINK
THE CONCLUSION THAT THE DISPUTE WAS NOT A LABOR DISPUTE WITHIN THE
MEANING OF THE ACT, BECAUSE IT DID NOT INVOLVE TERMS AND CONDITIONS OF
EMPLOYMENT IN THE SENSE OF WAGES, HOURS, UNIONIZATION OR BETTERMENT OF
WORKING CONDITIONS IS ERRONEOUS. 

SUBSECTION (A) OF SEC. 13 PROVIDES:  "A CASE SHALL BE HELD TO INVOLVE
OR TO GROW OUT OF A LABOR DISPUTE WHEN THE CASE INVOLVES PERSONS WHO
ARE ENGAGED IN THE SAME INDUSTRY, TRADE, CRAFT, OR OCCUPATION; OR HAVE
DIRECT OR INDIRECT INTERESTS THEREIN;...  OR WHEN THE CASE INVOLVES ANY
CONFLICTING OR COMPETING INTERESTS IN A 'LABOR DISPUTE' (AS HEREINAFTER
DEFINED) OF 'PERSONS PARTICIPATING OR INTERESTED' THEREIN (AS
HEREINAFTER DEFINED)."  SUBSECTION (B) CHARACTERIZES A PERSON OR
ASSOCIATION AS PARTICIPATING OR INTERESTED IN A LABOR DISPUTE "IF
RELIEF IS SOUGHT AGAINST HIM OR IT AND IF HE OR IT  ...  HAS A DIRECT
OR INDIRECT INTEREST THEREIN,  ..."  SUBSECTION (C) DEFINES THE TERM
"LABOR DISPUTE" AS INCLUDING "ANY CONTROVERSY CONCERNING TERMS OR
CONDITIONS OF EMPLOYMENT,  ...  REGARDLESS OF WHETHER OR NOT THE
DISPUTANTS STAND IN THE PROXIMATE RELATION OF EMPLOYER AND EMPLOYEE." 
THESE DEFINITIONS PLAINLY EMBRACE THE CONTROVERSY WHICH GAVE RISE TO
THE INSTANT SUIT AND CLASSIFY IT AS ONE ARISING OUT OF A DISPUTE
DEFINED AS A LABOR DISPUTE.  THEY LEAVE NO DOUBT THAT THE NEW NEGRO
ALLIANCE AND THE INDIVIDUAL PETITIONERS ARE, IN CONTEMPLATION OF THE
ACT, PERSONS INTERESTED IN THE DISPUTE.  FN3    IN QUOTING THE CLAUSES
OF SEC. 13 WE HAVE OMITTED THOSE THAT DEAL WITH DISPUTES BETWEEN
EMPLOYERS AND EMPLOYES AND DISPUTES BETWEEN ASSOCIATIONS OF PERSONS
ENGAGED IN A PARTICULAR TRADE OR CRAFT, AND EMPLOYERS IN THE SAME
INDUSTRY.  IT IS TO BE NOTED, HOWEVER, THAT THE INCLUSION IN THE
DEFINITIONS OF SUCH DISPUTES, AND THE PERSONS INTERESTED IN THEM,
SERVES TO EMPHASIZE THE FACT THAT THE QUOTED PORTIONS WERE INTENDED TO
EMBRACE CONTROVERSIES OTHER THAN THOSE BETWEEN EMPLOYERS AND EMPLOYES;
BETWEEN LABOR UNIONS SEEKING TO REPRESENT EMPLOYES AND EMPLOYERS; AND
BETWEEN PERSONS SEEKING EMPLOYMENT AND EMPLOYERS. 

THE ACT DOES NOT CONCERN ITSELF WITH THE BACKGROUND OR THE MOTIVES OF
THE DISPUTE.  THE DESIRE FOR FAIR AND EQUITABLE CONDITIONS OF
EMPLOYMENT ON THE PART OF PERSONS OF ANY RACE, COLOR, OR PERSUASION,
AND THE REMOVAL OF DISCRIMINATIONS AGAINST THEM BY REASON OF THEIR RACE
OR RELIGIOUS BELIEFS IS QUITE AS IMPORTANT TO THOSE CONCERNED AS
FAIRNESS AND EQUITY IN TERMS AND CONDITIONS OF EMPLOYMENT CAN BE TO
TRADE OR CRAFT UNIONS OR ANY FORM OF LABOR ORGANIZATION OR
ASSOCIATION.  RACE DISCRIMINATION BY AN EMPLOYER MAY REASONABLY BE
DEEMED MORE UNFAIR AND LESS EXCUSABLE THAN DISCRIMINATION AGAINST
WORKERS ON THE GROUND OF UNION AFFILIATION.  THERE IS NO JUSTIFICATION
IN THE APPARENT PURPOSES OR THE EXPRESS TERMS OF THE ACT FOR LIMITING
ITS DEFINITION OF LABOR DISPUTES AND CASES ARISING THEREFROM BY
EXCLUDING THOSE WHICH ARISE WITH RESPECT TO DISCRIMINATION IN TERMS AND
CONDITIONS OF EMPLOYMENT BASED UPON DIFFERENCES OF RACE OR COLOR. 

THE PURPOSE AND POLICY OF THE ACT RESPECTING THE JURISDICTION OF THE
FEDERAL COURTS IS SET FORTH IN SECS. 4 AND 7.  THE FORMER DEPRIVES
THOSE COURTS OF JURISDICTION TO ISSUE AN INJUNCTION AGAINST, INTER
ALIA, GIVING PUBLICITY TO THE EXISTENCE OF, OR THE FACTS INVOLVED IN,
ANY LABOR DISPUTE, WHETHER BY ADVERTISING, SPEAKING, PATROLLING, OR BY
ANY OTHER METHOD NOT INVOLVING FRAUD OR VIOLENCE; AGAINST ASSEMBLING
PEACEABLY TO ACT OR TO ORGANIZE TO ACT IN PROMOTION OF INTERESTS IN A
LABOR DISPUTE; AGAINST ADVISING OR NOTIFYING ANY PERSON OF AN INTENTION
TO DO ANY OF THE ACTS SPECIFIED; AGAINST AGREEING WITH OTHER PERSONS TO
DO ANY OF THE ACTS SPECIFIED.  FN4  SECTION 7 DEPRIVES THE COURTS OF
JURISDICTION TO ISSUE AN INJUNCTION IN ANY CASE INVOLVING OR GROWING
OUT OF A LABOR DISPUTE, EXCEPT AFTER HEARING SWORN TESTIMONY IN OPEN
COURT IN SUPPORT OF THE ALLEGATIONS OF THE COMPLAINT, AND UPON FINDINGS
OF FACT TO THE EFFECT (A) THAT UNLAWFUL ACTS HAVE BEEN THREATENED AND
WILL BE COMMITTED UNLESS RESTRAINED, OR HAVE BEEN COMMITTED AND WILL BE
CONTINUED, UNLESS RESTRAINED, AND THEN ONLY AGAINST THE PERSON OR
PERSONS, ASSOCIATION OR ORGANIZATION MAKING THE THREAT OR PERMITTING
THE UNLAWFUL ACT OR AUTHORIZING OR RATIFYING IT; (B) THAT SUBSTANTIAL
AND IRREPARABLE INJURY TO COMPLAINANT'S PROPERTY WILL FOLLOW; (C) THAT,
AS TO EACH ITEM OF RELIEF GRANTED, GREATER INJURY WILL BE INFLICTED
UPON THE COMPLAINANT BY DENIAL OF THE RELIEF THAN WILL BE INFLICTED ON
THE DEFENDANT BY GRANTING IT; (D) THAT COMPLAINANT HAS NO ADEQUATE
REMEDY AT LAW, AND (E) THAT THE PUBLIC OFFICERS CHARGED WITH THE DUTY
TO PROTECT COMPLAINANT'S PROPERTY ARE UNABLE OR UNWILLING TO FURNISH
ADEQUATE PROTECTION.  FN5 

THE LEGISLATIVE HISTORY OF THE ACT DEMONSTRATES THAT IT WAS THE
PURPOSE OF THE CONGRESS FURTHER TO EXTEND THE PROHIBITIONS OF THE
CLAYTON ACT  FN6  RESPECTING THE EXERCISE OF JURISDICTION BY FEDERAL
COURTS AND TO OBVIATE THE RESULTS OF THE JUDICIAL CONSTRUCTION OF THAT
ACT.  FN7  IT WAS INTENDED THAT PEACEFUL AND ORDERLY DISSEMINATION OF
INFORMATION BY THOSE DEFINED AS PERSONS INTERESTED IN A LABOR DISPUTE
CONCERNING "TERMS AND CONDITIONS OF EMPLOYMENT" IN AN INDUSTRY OR A
PLANT OR A PLACE OF BUSINESS SHOULD BE LAWFUL; THAT, SHORT OF FRAUD,
BREACH OF THE PEACE, VIOLENCE, OR CONDUCT OTHERWISE UNLAWFUL, THOSE
HAVING A DIRECT OR INDIRECT INTEREST IN SUCH TERMS AND CONDITIONS OF
EMPLOYMENT SHOULD BE AT LIBERTY TO ADVERTISE AND DISSEMINATE FACTS AND
INFORMATION WITH RESPECT TO TERMS AND CONDITIONS OF EMPLOYMENT, AND
PEACEFULLY TO PERSUADE OTHERS TO CONCUR IN THEIR VIEWS RESPECTING AN
EMPLOYER'S PRACTICES.  FN8  THE DISTRICT COURT ERRED IN NOT COMPLYING
WITH THE PROVISIONS OF THE ACT. 

THE DECREE MUST BE REVERSED AND THE CAUSE REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  ACT OF MARCH 23, 1932, C. 90, 47 STAT. 70, 73, U.S.C. TIT. 29. 
SEC.  113. 

FN2  67 APP. D.C. 359; 92 F.(2D) 510. 

FN3  COMPARE SENN V. TILE LAYERS UNION, 301 U.S. 468; LAUF V. SHINNER
& CO., 302 U.S. 323. 

FN4  U.S.C. TIT. 29, SEC. 104. 

FN5  U.S.C. TIT. 29, SEC. 107. 

FN6  ACT OF OCT. 15, 1914, C. 323, SEC. 20, 38 STAT. 730, 738, U.S.C.
TIT.  29, SEC. 52. 

FN7  DUPLEX PRINTING PRESS CO. V. DEERING, 254 U.S. 443; AMERICAN
STEEL FOUNDRIES V. TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S. 184. 
COMPARE HOUSE REPORT NO. 669, 72ND CONG., 1ST SESS., AND SENATE REPORT
1060, 71ST CONG., 2ND SESS., AND SENATE REPORT 163, 72ND CONG., 1ST
SESS. 

FN8  COMPARE SENN V. TILE LAYERS UNION, 301 U.S. 468; LEVRING &
GARRIGUES CO. V. MORRIN, 71 F.(2D) 284; CINDERELLA THEATRE CO. V. SIGN
WRITERS' LOCAL, 6 F.SUPP.  164; MILLER FURNITURE CO. V. FURNITURE
WORKERS UNION, 8 F.SUPP.  209. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE MCREYNOLDS, DISSENTING. 

MR. JUSTICE BUTLER AND I CANNOT ACCEPT THE VIEW THAT A "LABOR
DISPUTE" EMERGES WHENEVER AN EMPLOYER FAILS TO RESPOND TO A
COMMUNICATION FROM A, B AND C - IRRESPECTIVE OF THEIR RACE, CHARACTER,
REPUTATION, FITNESS, PREVIOUS OR PRESENT EMPLOYMENT - SUGGESTING
DISPLEASURE BECAUSE OF HIS CHOICE OF EMPLOYES AND THEIR EXPECTATION
THAT IN THE FUTURE HE WILL NOT FAIL TO SELECT MEN OF THEIR COMPLEXION. 

IT SEEMS UNBELIEVABLE THAT, IN ALL SUCH CIRCUMSTANCES, CONGRESS
INTENDED TO INHIBIT COURTS FROM EXTENDING PROTECTION LONG GUARANTEED BY
LAW AND THUS, IN EFFECT, ENCOURAGE MOBBISH INTERFERENCE WITH THE
INDIVIDUAL'S LIBERTY OF ACTION.  UNDER THE TORTURED MEANING NOW
ATTRIBUTED TO THE WORDS "LABOR DISPUTE," NO EMPLOYER - MERCHANT,
MANUFACTURER, BUILDER, COBBLER, HOUSEKEEPER OR WHAT NOT - WHO PREFERS
HELPERS OF ONE COLOR OR CLASS CAN FIND ADEQUATE SAFEGUARD AGAINST
INTOLERABLE VIOLATIONS OF HIS FREEDOM IF MEMBERS OF SOME OTHER CLASS,
RELIGION, RACE OR COLOR DEMAND THAT HE GIVE THEM PRECEDENCE*. 

*SEE - DEFINITION OF DISPUTE, WEBSTER'S NEW INTERNATIONAL DICTIONARY;
29 U.S.C., SEC. 113(C); SENATE REPORT NO. 163, 72ND CONGRESS, 1ST
SESSION, PP. 7, 11, 25; HOUSE REPORT NO. 669, 72ND CONGRESS, 1ST
SESSION, PP. 3, 7, 8, 10, 11. 

DESIGN THUS TO PROMOTE STRIFE, ENCOURAGE TRESPASS AND STIMULATE
INTIMIDATION, OUGHT NOT TO BE ADMITTED WHERE, AS HERE, NOT PLAINLY
AVOWED.  THE ULTIMATE RESULT OF THE VIEW NOW APPROVED TO THE VERY
PEOPLE WHOM PRESENT PETITIONERS CLAIM TO REPRESENT, IT MAY BE, IS
PREFIGURED BY THE GRIEVOUS PLIGHT OF MINORITIES IN LANDS WHERE THE LAW
HAS BECOME A MERE POLITICAL INSTRUMENT. 
..END :











UNITED STATES V. HENDLER, 303 U.S. 564 


NO. 563.  ARGUED MARCH 9, 1938.  - DECIDED MARCH 28, 1938.  - 91 F.2D
680, REVERSED. 


A GAIN RESULTING TO A CORPORATION FROM THE ASSUMPTION AND PAYMENT OF
ITS BONDED INDEBTEDNESS BY ANOTHER CORPORATION, WITH WHICH IT MERGED,
HELD NOT EXEMPT FROM INCOME TAX UNDER REVENUE ACT OF 1928, SEC. 112. 
P. 567. 

UNITED STATES V. HENDLER, TRANSFEREE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 302 U.S. 680, TO REVIEW THE AFFIRMANCE OF A JUDGMENT IN
FAVOR OF THE TAXPAYER, 17 F.SUPP.  558, IN A SUIT TO RECOVER AN ALLEGED
OVERPAYMENT OF INCOME TAXES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE REVENUE ACT OF 1928  FN1  IMPOSED A TAX UPON THE ANNUAL "NET
INCOME" OF CORPORATIONS.  IT DEFINED "NET INCOME" AS "GROSS INCOME  ...
LESS THE DEDUCTIONS ALLOWED  ...," AND "GROSS INCOME" AS INCLUDING
"GAINS, PROFITS AND INCOME DERIVED FROM  ...  TRADES  ...  OR SALES, OR
DEALINGS IN PROPERTY,  ...  OR GAINS OR PROFITS AND INCOME  ...  FROM
ANY SOURCE WHATEVER."  FN2 

FROM A "REORGANIZATION" SIMILAR TO, OR IN THE NATURE OF, A CORPORATE
MERGER OR CONSOLIDATION.  UNDER THIS SECTION, SUCH GAINS ARE NOT TAXED
IF ONE CORPORATION, PURSUANT TO A "PLAN OF REORGANIZATION" EXCHANGES
ITS PROPERTY "SOLELY FOR STOCK OR SECURITIES, IN ANOTHER CORPORATION A
PARTY TO THE REORGANIZATION."  BUT, WHEN A CORPORATION NOT ONLY
RECEIVES "STOCK OR SECURITIES" IN EXCHANGE FOR ITS PROPERTY, BUT ALSO
RECEIVES "OTHER PROPERTY OR MONEY" IN CARRYING OUT A "PLAN OF
REORGANIZATION," 

"(1)  IF THE CORPORATION RECEIVING SUCH OTHER PROPERTY OR MONEY
DISTRIBUTES IT IN PURSUANCE OF THE PLAN OF REORGANIZATION, NO GAIN TO
THE CORPORATION SHALL BE RECOGNIZED FROM THE EXCHANGE, BUT 

"(2)  IF THE CORPORATION RECEIVING SUCH OTHER PROPERTY OR MONEY DOES
NOT DISTRIBUTE IT IN PURSUANCE OF THE PLAN OF REORGANIZATION, THE GAIN,
IF ANY, TO THE CORPORATION SHALL BE RECOGNIZED (TAXED)  ..." 

IN THIS CASE, THERE WAS A MERGER OR "REORGANIZATION" OF THE BORDEN
COMPANY AND THE HENDLER CREAMERY COMPANY, INC., RESULTING IN GAINS OF
MORE THAN SIX MILLION DOLLARS TO THE HENDLER COMPANY, INC., A
CORPORATION OF WHICH RESPONDENT IS TRANSFEREE.  THE COURT OF APPEALS,
BELIEVING THERE WAS AN EXEMPTION UNDER SEC. 112, AFFIRMED  FN4  THE
JUDGMENT OF THE DISTRICT COURT  FN5 HOLDING ALL HENDLER GAINS NON
TAXABLE. 

THIS CONTROVERSY BETWEEN THE GOVERNMENT AND RESPONDENT INVOLVES THE
ASSUMPTION AND PAYMENT - PURSUANT TO THE PLAN OF REORGANIZATION - BY
THE BORDEN COMPANY OF $534,297.40 BONDED INDEBTEDNESS OF THE HENDLER
CREAMERY CO., INC. WE ARE UNABLE TO AGREE WITH THE CONCLUSION REACHED
BY THE COURTS BELOW THAT THE GAIN TO THE HENDLER COMPANY, REALIZED BY
THE BORDEN COMPANY'S PAYMENT, WAS EXEMPT FROM TAXATION UNDER SEC. 112. 

IT WAS CONTENDED BELOW AND IT IS URGED HERE THAT SINCE THE HENDLER
COMPANY DID NOT ACTUALLY RECEIVE THE MONEY WITH WHICH THE BORDEN
COMPANY DISCHARGED THE FORMER'S INDEBTEDNESS, THE HENDLER COMPANY'S
GAIN OF $534,297.40 IS NOT TAXABLE.  THE TRANSACTION, HOWEVER, UNDER
WHICH THE BORDEN COMPANY ASSUMED AND PAID THE DEBT AND OBLIGATION OF
THE HENDLER COMPANY IS TO BE REGARDED IN SUBSTANCE AS THOUGH THE
$534,297.40 HAD BEEN PAID DIRECTLY TO THE HENDLER COMPANY.  THE HENDLER
COMPANY WAS THE BENEFICIARY OF THE DISCHARGE OF ITS INDEBTEDNESS.  ITS
GAIN WAS AS REAL AND SUBSTANTIAL AS IF THE MONEY HAD BEEN PAID IT AND
THEN PAID OVER BY IT TO ITS CREDITORS.  THE DISCHARGE OF LIABILITY BY
THE PAYMENT OF THE HENDLER COMPANY'S INDEBTEDNESS CONSTITUTED INCOME TO
THE HENDLER COMPANY AND IS TO BE TREATED AS SUCH.  FN6 

CORPORATE "REORGANIZATION" - NEITHER RECEIVED AS "STOCKS OR
SECURITIES," NOR RECEIVED AS "MONEY OR OTHER PROPERTY" AND DISTRIBUTED
TO STOCKHOLDERS UNDER THE PLAN OF REORGANIZATION.  IN MINNESOTA TEA CO.
V. HELVERING, 302 U.S. 609, IT WAS SAID THAT THIS EXEMPTION
"CONTEMPLATES A DISTRIBUTION TO STOCKHOLDERS, AND NOT PAYMENT TO
CREDITORS."  THE VERY STATUTE UPON WHICH THE TAXPAYER RELIES PROVIDES
THAT "IF THE CORPORATION RECEIVING SUCH OTHER PROPERTY OR MONEY DOES
NOT DISTRIBUTE IT IN PURSUANCE OF THE PLAN OF REORGANIZATION, THE GAIN,
IF ANY, TO THE CORPORATION SHALL BE RECOGNIZED (TAXED)  ..." 

SINCE THIS GAIN OR INCOME OF $534,297.40 OF THE HENDLER COMPANY WAS
NEITHER RECEIVED AS "STOCK OR SECURITIES" NOR DISTRIBUTED TO ITS
STOCKHOLDERS "IN PURSUANCE OF THE PLAN OF REORGANIZATION" IT WAS NOT
EXEMPT AND IS TAXABLE GAIN AS DEFINED IN THE 1928 ACT.  THIS
$534,297.40 GAIN TO THE TAXPAYER DOES NOT FALL WITHIN THE EXEMPTIONS OF
SEC. 112, AND THE JUDGMENT OF THE COURT BELOW IS REVERSED. 

FN1  REVENUE ACT OF 1928, C. 852, 45 STAT. 791, SEC. 13. 

FN2  ID., SECS. 21-22. 

FN3  ID., SEC. 112. 

FN4  91 F.(2D) 680. 

FN5  17 F.SUPP.  558. 

FN6  OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716, 729 DOUGLAS
V. WILLCUTS, 296 U.S. 1, 8, 9. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :











BATES MANUFACTURING CO. V. UNITED STATES, 303 U.S. 567 


NO. 647.  ARGUED MARCH 11, 1938.  - DECIDED MARCH 28, 1938.  - 93 F.2D
721, REVERSED. 


WHERE, IN A SUIT AGAINST THE UNITED STATES IN THE DISTRICT COURT UNDER
THE TUCKER ACT, FOR RECOVERY OF TAXES ALLEGED TO HAVE BEEN ILLEGALLY
COLLECTED, THE VERIFIED PETITION OF PLAINTIFF WAS FILED WITHIN TWO
YEARS AFTER THE DISALLOWANCE OF THE CLAIM FOR REFUND; AND WITHIN FOUR
DAYS AFTER THE FILING OF THE PETITION, THOUGH NOT WITHIN TWO YEARS
AFTER THE DISALLOWANCE OF THE CLAIM FOR REFUND, COPIES OF THE PETITION
WERE SERVED ON THE UNITED STATES ATTORNEY AND MAILED TO THE ATTORNEY
GENERAL,  - HELD THE SUIT WAS "BEGUN" IN TIME UNDER REVENUE ACT OF
1926, SEC. 1113.  P. 572. 

BATES MANUFACTURING CO. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, POST, P. 628, TO REVIEW A JUDGMENT AFFIRMING THE
DISMISSAL, 19 F.SUPP.  526, OF A SUIT TO RECOVER AN ALLEGED OVERPAYMENT
OF TAXES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE REVENUE ACT OF 1926  FN1  PROVIDES THAT "NO SUIT  ...  SHALL BE
MAINTAINED IN ANY COURT FOR THE RECOVERY OF ANY INTERNAL-REVENUE TAX
ALLEGED TO HAVE BEEN ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED,
...  UNLESS SUCH SUIT  ...  IS BEGUN WITHIN TWO YEARS AFTER TH
DISALLOWANCE OF  ... SUCH CLAIM  ..." 

THE TUCKER ACT OF MARCH 3, 1887  FN2  AS AMENDED, GIVES CONCURRENT
JURISDICTION TO THE DISTRICT COURTS AND THE COURT OF CLAIMS IN SUITS
AGAINST THE UNITED STATES INCLUDING THOSE FOR RECOVERY OF ERRONEOUS OR
ILLEGALLY COLLECTED TAXES.  FN3  SECTION 5 OF THE TUCKER ACT REQUIRES A
PLAINTIFF BRINGING SUIT AGAINST THE GOVERNMENT IN THE DISTRICT COURT TO
"FILE A PETITION, DULY VERIFIED WITH THE CLERK OF THE RESPECTIVE COURT
HAVING JURISDICTION OF THE CASE."  SECTION 6 REQUIRES "THAT THE
PLAINTIFF  ...  CAUSE A COPY OF HIS PETITION  ...  TO BE SERVED UPON
THE DISTRICT ATTORNEY  ..., AND  ...  MAIL A COPY  ...  TO THE ATTORNEY
GENERAL  ..., AND CAUSE TO BE FILED WITH THE CLERK OF THE COURT  ...
AFFIDAVIT OF SUCH SERVICE AND  ...  MAILING  ..." 

MARCH 22, 1927, THE PETITIONER'S CLAIM FOR TAX REFUND WAS DISALLOWED. 
MARCH 21, 1929, WITHIN TWO YEARS AFTER THE DISALLOWANCE, A DULY
VERIFIED PETITION WAS FILED IN THE DISTRICT COURT CLAIMING THE REFUND. 
MARCH 25, 1929, TWO YEARS AND FOUR DAYS AFTER THE DISALLOWANCE, THE
PETITION WAS SERVED ON THE UNITED STATES ATTORNEY AND MAILED TO THE
ATTORNEY GENERAL. 

THE DISTRICT COURT HELD SUIT WAS NOT "BEGUN" BY FILING THE VERIFIED
PETITION AND DISMISSED THE CAUSE OF ACTION.  FN4  THE COURT OF APPEALS
AFFIRMED.  FN5 

IT IS CONCEDED THAT SUIT IN THE COURT OF CLAIMS IS "BEGUN" WHEN THE
PETITION IS FILED.  YET, IT IS INSISTED THAT SUIT IS NOT "BEGUN" IN THE
DISTRICT COURT WHEN THE PETITION IS FILED ALTHOUGH THE COURT OF CLAIMS
AND THE DISTRICT COURTS ARE GIVEN CONCURRENT JURISDICTION BY THE TUCKER
ACT.  CONSIDERATION OF THE HISTORY AND LANGUAGE OF THE STATUTE LEADS US
TO A DIFFERENT CONCLUSION. 

CLAIM AGAINST THE UNITED STATES, COGNIZABLE BY THE COURT OF CLAIMS,
SHALL BE FOREVER BARRED UNLESS THE PETITION SETTING FORTH A STATEMENT
OF THE CLAIM BE FILED  ...  WITHIN SIX YEARS AFTER THE CLAIM FIRST
ACCRUES  ..." 

WHEN THE TUCKER ACT IN 1887 GREATLY EXPANDED THE JURISDICTION OF THE
COURT OF CLAIMS AND GAVE DISTRICT COURTS CONCURRENT JURISDICTION IN ALL
CASES INVOLVING CERTAIN AMOUNTS, ITS LIMITATION IN BOTH THE COURT OF
CLAIMS AND THE DISTRICT COURTS PROVIDED: 

"...  NO SUIT AGAINST THE GOVERNMENT OF THE UNITED STATES, SHALL BE
ALLOWED UNDER THIS ACT UNLESS THE SAME SHALL HAVE BEEN BROUGHT WITHIN
SIX YEARS AFTER THE RIGHT ACCRUED  ..." 

THE SUBSTANTIAL RIGHTS OF CLAIMANTS ARE TO BE GOVERNED ALIKE WHETHER
SUIT IS BROUGHT IN THE COURT OF CLAIMS OR THE DISTRICT COURT.  THE
AUTHOR OF THE TUCKER ACT IN DECLARING THE STATUTE OF LIMITATIONS
APPLICABLE ALIKE "TO ANY OR ALL" OF THE CASES ARISING UNDER THE ACT
DREW NO DISTINCTION BETWEEN SUITS BROUGHT IN THE DISTRICT COURT AND IN
THE COURT OF CLAIMS.  FN7 

THE PURPOSE OF GIVING THE DISTRICT COURTS CONCURRENT JURISDICTION
WITH THE COURT OF CLAIMS WAS TO PROVIDE ADDITIONAL OPPORTUNITY FOR THE
CONSIDERATION AND DETERMINATION OF CLAIMS THAT HAD "LONG PRESSED UPON
THE CONSIDERATION OF CONGRESS"  FN8  AND TO PERMIT SUIT TO "BE BROUGHT
IN THE DISTRICT WHERE THE PARTIES RESIDE."  FN9  AFTER DISCUSSING THE
BENEFITS OF PREVIOUS LEGISLATION CREATING AND EXTENDING THE
JURISDICTION OF THE COURT OF CLAIMS, THE COMMITTEE ON THE JUDICIARY
REPORTED TO THE HOUSE: 

"THE HISTORY OF THIS LEGISLATION AND ITS RESULTS HAVE BEEN GIVEN TO
SHOW HOW MUCH OF BENEFIT HAS BEEN DONE IN THE SATISFACTORY DECISIONS OF
CLAIMS AGAINST THE GOVERNMENT AND IN RELIEF OF THE CONGRESS.  BUT IT
HAS LONG BEEN FELT THAT THE BENEFITS COULD BE MADE MUCH GREATER BY
EXTENDING THE JURISDICTION OF THE COURT....  IT IS NEEDLESS TO SAY MORE
THAN HAS ALREADY BEEN INTIMATED AS TO THE GENERAL POLICY OF THIS
LEGISLATION.  THE LARGE MASS OF BUSINESS NOW BEFORE CONGRESS GROWING
OUT OF PRIVATE CLAIMS CONSUMES ITS TIME YEAR AFTER YEAR IN COMMITTEE
WORK, RENDERED USELESS BY THE LACK OF TIME TO CONSIDER AND PASS UPON
THEM.  JUST CLAIMS ARE PAINFULLY DEFERRED WITHOUT INTEREST, AND THE
CREDIT OF THE GOVERNMENT, SO STRICTLY UPHELD UPON ITS BONDED DEBT, IS
JUSTLY CENSURED IN RESPECT TO ITS HONEST PRIVATE CLAIMS."  FN10 

IN RESPONSE TO THE NEEDS DISCLOSED BY THIS REPORT CONGRESS PASSED THE
TUCKER ACT, MANIFESTLY INTENDING TO PROVIDE ADEQUATE OPPORTUNITY FOR
EXPEDITIOUS AND ORDERLY DETERMINATION OF CLAIMS AGAINST THE
GOVERNMENT.  THIS ACT NOT ONLY EXPANDED THE JURISDICTION OF THE COURT
OF CLAIMS, BUT, FOR THE FIRST TIME, GAVE DISTRICT COURTS GENERAL
AUTHORITY TO HEAR AND DETERMINE CLAIMS AGAINST THE GOVERNMENT.  RELIEF
OF EXISTING CLAIM CONGESTION AND PREVENTION OF FUTURE CONGESTION
OBVIOUSLY DEMANDED AN INTEGRATED JURISDICTIONAL PLAN BY WHICH THE COURT
OF CLAIMS AND DISTRICT COURTS COULD AFFORD EQUAL OPPORTUNITIES FOR
EXPEDITIOUS AND FAIR TRIALS OF LIKE CLAIMS WITHIN THE JURISDICTIONAL
AMOUNT OF THE DISTRICT COURTS.  THE ERECTION OF BARRIERS TO RECOVERY IN
THE DISTRICT COURTS WHICH DID NOT EXIST IN THE COURT OF CLAIMS WOULD
HAVE TENDED TO DEFEAT THE PRIME OBJECTIVES OF THE ACT.  UNIFORMITY AND
EQUALITY IN SUBSTANTIAL RIGHTS AND PRIVILEGES - FOR CLAIMANTS IN BOTH
FORUMS - WERE ESSENTIAL FEATURES IN THE SYSTEM.  DISTINCTIONS BETWEEN
THE OPPORTUNITIES FOR RECOVERY AFFORDED IN THE TWO FORUMS WOULD HAVE
TENDED TO MAR THE SYMMETRY OF THE PLAN AND TO IMPAIR ITS EFFECTIVE AND
SUCCESSFUL OPERATION.  AS TO SUBSTANTIAL RIGHTS, CONGRESS EVIDENTLY
MEANT TO GIVE CLAIMANTS AN IDENTICAL STATUS IN BOTH COURTS WHERE THE
AMOUNT IN CONTROVERSY WAS INCLUDED IN THE JURISDICTION OF BOTH.  WE
FIND NO SUPPORT IN THE BACKGROUND OR OBJECTIVE OF THE ACT FOR A
CONSTRUCTION UNDER WHICH A CLAIMANT'S RIGHTS WOULD BE PRESERVED BY
FILING A PETITION IN THE COURT OF CLAIMS, BUT WOULD BE LOST - WITHOUT
ADDITIONAL ACTION - IN THE DISTRICT COURT. 

AS SAID BY THIS COURT IN UNITED STATES V. GREATHOUSE, 166 U.S. 601,
606: 

"...  IT WAS NOT CONTEMPLATED THAT THE LIMITATION UPON SUITS AGAINST
THE GOVERNMENT IN THE DISTRICT  ...  COURTS OF THE UNITED STATES SHOULD
BE DIFFERENT FROM THAT APPLICABLE TO LIKE SUITS IN THE COURT OF
CLAIMS." 

AS USED IN THIS STATUTE THE WORD "BEGUN" SHOULD BE GIVEN ITS ORDINARY
AND ACCUSTOMED MEANING.  TO BEGIN IS TO START; TO INSTITUTE; TO
INITIATE; TO COMMENCE.  THIS SUIT WAS BEGUN - WITHIN TWO YEARS AFTER
THE REFUND CLAIM WAS DISALLOWED - WHEN THE PETITION WAS FILED IN COURT
IN GOOD FAITH.  NOTICE WAS MAILED THE ATTORNEY GENERAL AND THE DISTRICT
ATTORNEY WAS PROMPTLY SERVED - BOTH WITHIN FOUR DAYS AFTER THE VERIFIED
PETITION WAS FILED.  UNDER THESE CIRCUMSTANCES, WE DO NOT CONSIDER WHAT
WOULD BE THE EFFECT OF LACK OF DILIGENCE IN OBTAINING SERVICE.  FN11
THE JUDGMENT IN THE COURT BELOW WAS NOT IN HARMONY WITH THE VIEWS HERE
EXPRESSED AND IS REVERSED. 

FN1  C. 27, 44 STAT. 9, SEC. 1113. 

FN2  C. 359, 24 STAT. 505, 506. 

FN3  U.S.C. TITLE 28, SEC. 41(20), (JUDICIAL CODE SEC. 24(20) AS
AMENDED). 

FN4  19 F.SUPP.  526. 

FN5  93 F.(2D) 721. 

FN6  12 STAT. 765, 767. 

FN7  CONGRESSIONAL RECORD AND APPENDIX, 49TH CONG., 2ND SESS., MARCH
3, P. 2679. 

FN8 HOUSE REPORT NO. 1077, 49TH CONG., 1ST SESS., BY MR. TUCKER ON
THE TUCKER BILL. 

FN9  CONGRESSIONAL RECORD AND APPENDIX, 49TH CONG., 2ND SESS., MARCH
3, P. 2679. 

FN10  HOUSE REP. NO. 1077, SUPRA, PP. 3-4. 

FN11  COMPARE, LINN & LANE TIMBER CO. V. UNITED STATES, 236 U.S. 574,
578. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :





RAPID TRANSIT CORP. V. NEW YORK, 303 U.S. 573 


NO. 435.  ARGUED FEBRUARY 7, 1938.  - DECIDED MARCH 28, 1938.  - 275
N.Y. 258, 454 -  9 N.E.2D 858 - 11 ID. 293, AFFIRMED. 


1.  SINCE CARRIERS OR OTHER UTILITIES WITH THE RIGHT OF EMINENT
DOMAIN, THE USE OF PUBLIC PROPERTY, SPECIAL FRANCHISES OR PUBLIC
CONTRACTS, HAVE MANY POINTS OF DISTINCTION FROM OTHER BUSINESSES,
INCLUDING RELATIVE FREEDOM FROM COMPETITION, THEY MAY FOR PURPOSES OF
TAXATION BE CLASSED SEPARATELY.  P. 578. 

2.  UTILITIES SUBJECT TO SUPERVISION BY THE NEW YORK DEPARTMENT OF
PUBLIC SERVICE - INCLUDING THOSE ENGAGED IN TRANSPORTATION OF PERSONS
OR PROPERTY, AND THOSE FURNISHING GAS, ELECTRICITY, STEAM, WATER,
COMMUNICATION BY TELEGRAPH OR TELEPHONE - WERE SUBJECTED BY LOCAL LAWS
OF THE CITY OF NEW YORK TO PRIVILEGE TAXES OF 3% OF THEIR GROSS
INCOMES.  THE LAWS WERE ENACTED FOR SHORT PERIODS UNDER AUTHORITY FROM
THE STATE LEGISLATURE, AND THE PROCEEDS WERE EARMARKED FOR USE
EXCLUSIVELY IN RELIEVING THE UNEMPLOYED IN THE CITY.  TRANSIT COMPANIES
OPERATING IN THE CITY ASSAILED THE LEVIES UNDER THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT, AND THE CONTRACT
CLAUSE, OF THE FEDERAL CONSTITUTION.  HELD: 

(1)  IT IS NOT A VALID OBJECTION THAT THE TAXPAYERS ARE DEFINED BY
REFERENCE TO THE CLASSIFICATION PREVIOUSLY ESTABLISHED BY THE NEW YORK
PUBLIC SERVICE LAW RATHER THAN BY SPECIFIC REFERENCE IN THE TAXING LAW
ITSELF TO THE CHARACTER OF THEIR BUSINESSES.  P. 579. 

(2)  SEPARATE CLASSIFICATION OF THE UTILITIES TAXED IS JUSTIFIABLE,
UPON THE GROUNDS THAT THEY ENJOY A SPECIAL MEASURE OF STATUTORY
PROTECTION FROM COMPETITION; THAT THEY ARE REQUIRED TO MAKE FINANCIAL
REPORTS TO PUBLIC AUTHORITY WHICH ARE OF ADMINISTRATIVE CONVENIENCE IN
ASCERTAINING AND COLLECTING SUCH TAXES; AND THAT THE REVENUES OF SUCH
UTILITIES, FURNISHING INDISPENSABLE SERVICES, MAY BE SUBJECT TO
RELATIVELY LITTLE FLUCTUATION, EVEN IN TIMES OF DEPRESSION.  P. 580. 

(3)  THE FACTS THAT THE TRANSIT COMPANIES HAVE A LOW MARGIN OF NET
INCOME, AND THAT BECAUSE OF CONTRACTS WITH THE CITY THEY CAN NOT PASS
ON THE ADDED TAX BURDEN BY INCREASING THEIR CHARGES, ARE FORTUITOUS AND
DO NOT RENDER THE TAXES ARBITRARY AND UNREASONABLY DISCRIMINATORY
AGAINST THEM AS COMPARED WITH THE OTHER UTILITIES OR WITH BUSINESS IN
GENERAL.  P. 581. 

THE LEGISLATURE IS NOT REQUIRED TO MAKE METICULOUS ADJUSTMENTS IN AN
EFFORT TO AVOID INCIDENTAL HARDSHIPS. 

(4)  TAXES ON GROSS RECEIPTS, RATHER THAN ON NET INCOME, ARE JUSTIFIED
UPON THE GROUND OF CONVENIENCE IN ADMINISTRATION AND BECAUSE OF THE
CLOSE RELATION OF THE VOLUME OF TRANSACTIONS IN A BUSINESS TO COST OF
ITS SUPERVISION AND PROTECTION BY GOVERNMENT.  STEWART DRY GOODS CO. V.
LEWIS, 294 U.S. 550, DISTINGUISHED.  P. 582. 

(5)  THE FACT THAT THE TAX IS LEVIED FOR THE SPECIFIC PURPOSE OF
RELIEVING CONDITIONS (UNEMPLOYMENT) TO WHICH THE UTILITIES TAXED BEAR
NO SPECIAL RELATION, DOES NOT RENDER IT UNCONSTITUTIONAL.  P. 584. 

(6)  WITHIN THE MEANING OF THE RULE THAT CLASSIFICATION MUST REST
UPON SOME GROUND OF DIFFERENCE HAVING A FAIR AND SUBSTANTIAL RELATION
TO THE OBJECT OF THE LEGISLATION, THE 'OBJECT' IN THIS CASE IS THE
RAISING OF THE REVENUE.  THAT AN APPROPRIATION OF THE FUNDS FOR RELIEF
IS PART OF THE SAME LEGISLATION IS NOT SIGNIFICANT; IT IS NOT
CONSTITUTIONALLY NECESSARY THAT THE CLASSIFICATION FOR THE TAX BE
RELATED TO THE APPROPRIATION OF THE PROCEEDS.  P. 585. 

(7)  THE LAWS UNDER CONSIDERATION DO NOT VIOLATE THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 587. 

3.  TO SUSTAIN A CLAIM OF CONTRACTUAL TAX EXEMPTION THE LANGUAGE MUST
BE CLEAR AND EXPRESS.  P. 593. 

4.  IN DECIDING A CASE UNDER THE CONTRACT CLAUSE, THIS COURT
DETERMINES FOR ITSELF THE EXISTENCE AND MEANING OF THE CONTRACT; BUT,
IN SO DOING, IT LEANS TOWARD AGREEMENT WITH THE COURTS OF THE STATE AND
ACCEPTS THEIR JUDGMENT UNLESS MANIFESTLY WRONG.  P. 593. 

5.  IN A CONTRACT BETWEEN THE CITY OF NEW YORK AND A TRANSIT
CORPORATION, THE CITY AGREED TO CONSTRUCT CERTAIN RAILROADS AND THE
COMPANY TO CONTRIBUTE TO THEIR COST AND EQUIPMENT AND TO RECONSTRUCT
AND BUILD ADDITIONS TO ITS OWN RAILROADS.  THE CITY LEASED THE
RAILROADS IT AGREED TO CONSTRUCT TO THE COMPANY AND THE COMPANY AGREED
TO OPERATE THEM, IN CONJUNCTION WITH ITS OWN AS ONE SYSTEM, FOR A
DESIGNATED FARE.  THE GROSS RECEIPTS WERE TO BE POOLED; DEDUCTIONS WERE
TO BE MADE, IN THEIR ORDER, FIRST TO REIMBURSE THE COMPANY FOR
SPECIFIED EXPENSES AND OUTLAYS, INCLUDING TAXES, AND THEN TO REIMBURSE
THE CITY FOR CERTAIN INTEREST AND AMORTIZATION CHARGES; AND THE
REMAINDER WAS TO BE DIVIDED EQUALLY BETWEEN THE CITY AND THE COMPANY. 
THE TAX DEDUCTION INCLUDED "ALL TAXES  ...  OF EVERY DESCRIPTION
(WHETHER ON PHYSICAL PROPERTY, STOCK OR SECURITIES, CORPORATE OR OTHER
FRANCHISES, OR OTHERWISE) ASSESSED OR WHICH MAY HEREAFTER BE ASSESSED
AGAINST THE LESSEE IN CONNECTION WITH  ...  THE OPERATION OF THE  ...
RAILROADS."  AT THE TIME OF MAKING THE CONTRACT, THE TAXING POWER OF
THE CITY WAS CONFINED TO SPECIAL ASSESSMENTS FOR PUBLIC IMPROVEMENTS
AND AD VALOREM TAXES ON REAL ESTATE AND ON SPECIAL FRANCHISES GRANTED
BY THE CITY.  LATER, UNDER NEW POWER ACQUIRED FROM THE LEGISLATURE, THE
CITY LEVIED A PRIVILEGE TAX OF 3% OF THE GROSS RECEIPTS.  HELD: 

(1)  THAT THE COLLECTION OF SUCH TAX WAS NOT IN VIOLATION OF THE
CONTRACT BUT IN ACCORDANCE WITH ITS EXPRESS TERMS.  PP. 588, 591. 

(2)  THE CONTRACT MAY NOT BE CONSTRUED AS LIMITING THE TAXES
DEDUCTIBLE FROM GROSS RECEIPTS TO THOSE WHICH THE CITY WAS AUTHORIZED
TO IMPOSE WHEN THE CONTRACT WAS MADE.  P. 591. 

NEW YORK RAPID TRANSIT CORP. V. CITY OF NEW YORK*. 

*TOGETHER WITH NO. 436, BROOKLYN & QUEENS TRANSIT CORP. V. CITY OF
NEW YORK, ALSO ON APPEAL FROM THE SUPREME COURT OF NEW YORK. 

APPEAL FROM THE SUPREME COURT OF NEW YORK. 

APPEALS FROM JUDGMENTS OF THE SUPREME COURT OF NEW YORK, ENTERED ON
REMITTITUR FROM THE COURT OF APPEALS.  THESE WERE ACTIONS TO RECOVER
FROM THE CITY LARGE SUMS EXACTED AS TAXES.  THE SPECIAL TERM OF THE
SUPREME COURT HELD THE TAXES VOID; THE APPELLATE DIVISION AFFIRMED, 251
APP. DIV. 710; 296 N.Y.S. 1006, 1012; THE COURT OF APPEALS UPHELD THE
TAXES AND REVERSED THE JUDGMENTS. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS THE CONSTITUTIONAL VALIDITY OF LOCAL
LAWS OF THE CITY OF NEW YORK (LOCAL LAW NO. 21 OF 1934, AS AMENDED BY
LOCAL LAW NO. 2 OF 1935, AND EXTENDED BY LOCAL LAW NO. 30 OF 1935)
WHICH PROVIDE, SEC. 2, THAT "FOR THE PRIVILEGE OF EXERCISING ITS
FRANCHISE OR FRANCHISES, OR OF HOLDING PROPERTY, OR OF DOING BUSINESS
IN THE CITY OF NEW YORK" AN EXCISE TAX SHALL BE PAID BY EVERY "UTILITY"
DOING BUSINESS IN THE CITY OF NEW YORK DURING 1935 AND THE FIRST SIX
MONTHS OF 1936. 

"UTILITY" IS DEFINED, SEC. 1(E), TO INCLUDE "ANY PERSON SUBJECT TO
THE SUPERVISION OF EITHER DIVISION OF THE DEPARTMENT OF PUBLIC
SERVICE," AND EVERY PERSON, WHETHER OR NOT SUBJECT TO SUCH SUPERVISION,
ENGAGED "IN THE BUSINESS OF FURNISHING OR SELLING TO OTHER PERSONS,
GAS, ELECTRICITY, STEAM, WATER, REFRIGERATION, TELEPHONY AND/OR
TELEGRAPHY" OR SERVICE IN THESE COMMODITIES.  EACH UTILITY IS REQUIRED
TO PAY A TAX "EQUAL TO THREE PERCENTUM OF ITS GROSS INCOME" RECEIVED
DURING THE EFFECTIVE PERIOD OF THE LOCAL LAWS, WITH A MINOR VARIATION
NOT HERE ASSAILED FOR UTILITIES NOT SUBJECT TO THE SPECIFIED
SUPERVISION.  FN1  THE LOCAL LAWS SPECIFY THAT ALL REVENUES FROM THE
TAX "SHALL BE DEPOSITED IN A SEPARATE BANK ACCOUNT OR ACCOUNTS, AND
SHALL BE AVAILABLE AND USED SOLELY AND EXCLUSIVELY FOR THE PURPOSE OF
RELIEVING THE PEOPLE OF THE CITY OF NEW YORK FROM THE HARDSHIPS AND
SUFFERING CAUSED BY UNEMPLOYMENT" (SEC. 14).  THE LOCAL LAWS,
ADMITTEDLY PASSED UNDER AUTHORITY GRANTED BY THE STATE LEGISLATURE,
FN2  ARE ASSAILED UNDER THE UNITED STATES CONSTITUTION.  FOR
CONVENIENCE WE SHALL DISCUSS THE CONTENTIONS OF THE NEW YORK RAPID
TRANSIT CORPORATION ALONE, AS DETERMINATION OF THE OBJECTIONS RAISED BY
IT IS CONCLUSIVE OF THOSE ADVANCED BY THE BROOKLYN AND QUEENS TRANSIT
CORPORATION. 

THE NEW YORK RAPID TRANSIT CORPORATION OPERATES RAPID TRANSIT
RAILROADS IN THE CITY OF NEW YORK UNDER A CONTRACT KNOWN AS CONTRACT
NO. 4, DATED MARCH 19, 1913, MADE PURSUANT TO THE NEW YORK RAPID
TRANSIT ACT, LAWS 1891, C. 4, AS AMENDED, BETWEEN ITS PREDECESSOR (NEW
YORK MUNICIPAL RAILWAY CORPORATION) AND THE CITY.  AS A COMMON CARRIER
ENGAGED IN THE OPERATION OF RAPID TRANSIT RAILROADS, THE CORPORATION IS
UNDER THE SUPERVISION OF THE TRANSIT COMMISSION, THE HEAD OF THE
METROPOLITAN DIVISION OF THE STATE DEPARTMENT OF PUBLIC SERVICE. 
ACCORDINGLY, BUT UNDER PROTEST, IT PAID THE TAXES IMPOSED BY THE LOCAL
LAWS SET OUT ABOVE, FOR THE MONTHS JANUARY, 1935, TO JUNE, 1936,
INCLUSIVE.  IT BROUGHT THIS ACTION AGAINST THE CITY OF NEW YORK TO
RECOVER THE AMOUNTS PAID, $1,408,697, WITH INTEREST, ON THE GROUND THAT
THE LOCAL LAWS ARE UNCONSTITUTIONAL.  THE CASE ARISES ON THE CITY'S
MOTION TO DISMISS THE COMPLAINT. 

THE SUPREME COURT OF NEW YORK, SPECIAL TERM, DENIED THE MOTION TO
DISMISS THE COMPLAINT AND FOUND THAT THE LOCAL LAWS DENIED EQUAL
PROTECTION BECAUSE OF GROSS INEQUALITY OF BURDEN IN COMPARISON WITH
OTHER UTILITIES.  THIS ORDER WAS AFFIRMED BY THE APPELLATE DIVISION OF
THE SUPREME COURT, WITHOUT OPINION, ON A 3-2 VOTE (251 APP. DIV. 710;
296 N.Y.S. 1006).  THE COURT OF APPEALS REVERSED (275 N.Y. 258; 9
N.E.2D 858), UPHELD THE LOCAL LAWS AGAINST ALL ATTACKS, AND RULED THAT
THE COMPLAINT DID NOT STATE A CAUSE OF ACTION.  APPEAL WAS TAKEN TO
THIS COURT UNDER SEC. 237(A) OF THE JUDICIAL CODE, 28 U.S.C. SEC.
344(A). 

THE CORPORATION CHALLENGES THE LOCAL LAWS AS VIOLATIVE OF THE EQUAL
PROTECTION AND DUE PROCESS CLAUSES OF THE 14TH AMENDMENT AND THE
CONTRACTS CLAUSE OF ARTICLE I, SEC. 10, OF THE CONSTITUTION.  I.
CLASSIFICATION.  NO QUESTION IS OR COULD BE MADE BY THE CORPORATION AS
TO THE RIGHT OF A STATE, OR A MUNICIPALITY WITH PROPERLY DELEGATED
POWERS, TO ENACT LAWS OR ORDINANCES, BASED ON REASONABLE CLASSIFICATION
OF THE OBJECTS OF THE LEGISLATION OR OF THE PERSONS WHOM IT AFFECTS. 
"EQUAL PROTECTION" DOES NOT PROHIBIT THIS.  ALTHOUGH THE WIDE
DISCRETION AS TO CLASSIFICATION RETAINED BY A LEGISLATURE, OFTEN
RESULTS IN NARROW DISTINCTIONS, THESE DISTINCTIONS, IF REASONABLY
RELATED TO THE OBJECT OF THE LEGISLATION, ARE SUFFICIENT TO JUSTIFY THE
CLASSIFICATION.  GERMAN ALLIANCE INS. CO. V. LEWIS, 233 U.S. 389, 418;
ATCHISON, T. & S.F.R. CO. V. MATTHEWS, 174 U.S. 96, 105; GIOZZA V.
TIERNAN, 148 U.S. 657.  INDEED, IT HAS LONG BEEN THE LAW UNDER THE 14TH
AMENDMENT THAT "A DISTINCTION IN LEGISLATION IS NOT ARBITRARY, IF ANY
STATE OF FACTS REASONABLY CAN BE CONCEIVED THAT WOULD SUSTAIN IT,
..."  RAST V. VAN DEMAN & LEWIS CO., 240 U.S. 342, 357; BORDEN'S CO. V.
BALDWIN, 293 U.S. 194, 209; METROPOLITAN CASUALTY INS. CO. V. BROWNELL,
294 U.S. 580, 584.  "THE RULE OF EQUALITY PERMITS MANY PRACTICAL
INEQUALITIES."  MAGOUN V. ILLINOIS TRUST & SAVINGS BANK, 170 U.S. 283,
296; BREEDLOVE V. SUTTLES, 302 U.S. 277, 281; CARMICHAEL V. SOUTHERN
COAL & COKE CO., 301 U.S. 495, 509.  "WHAT SATISFIES THIS EQUALITY HAS
NOT BEEN AND PROBABLY NEVER CAN BE PRECISELY DEFINED."  MAGOUN V.
ILLINOIS TRUST & SAVINGS BANK, SUPRA, 293. 

THE POWER TO MAKE DISTINCTIONS EXISTS WITH FULL VIGOR IN THE FIELD OF
TAXATION, WHERE NO "IRON RULE" OF EQUALITY HAS EVER BEEN ENFORCED UPON
THE STATES.  BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 237;
GIOZZA V. TIERNAN, 148 U.S. 657, 662.  A STATE MAY EXERCISE A WIDE
DISCRETION IN SELECTING THE SUBJECTS OF TAXATION (MAGOUN V. ILLINOIS
TRUST & SAVINGS BANK, 170 U.S. 283, 294: QUONG WING V. KIRKENDALL, 223
U.S. 59, 62; HEISLER V. THOMAS COLLIERY CO., 260 U.S. 245, 255)
"PARTICULARLY AS RESPECTS OCCUPATION TAXES," OLIVER IRON MINING CO. V.
LORD, 262 U.S. 172, 179; BROWN-FORMAN CO. V. KENTUCKY, 217 U.S. 563,
573; SOUTHWESTERN OIL CO. V. TEXAS, 217 U.S. 114, 121, 126; SEE OHIO
OIL CO. V. CONWAY, 281 U.S. 146, 159. 

SINCE CARRIERS OR OTHER UTILITIES WITH THE RIGHT OF EMINENT DOMAIN,
THE USE OF PUBLIC PROPERTY, SPECIAL FRANCHISES OR PUBLIC CONTRACTS,
HAVE MANY POINTS OF DISTINCTION FROM OTHER BUSINESSES, INCLUDING
RELATIVE FREEDOM FROM COMPETITION, ESPECIALLY SIGNIFICANT WITH
INCREASING DENSITY OF POPULATION AND MUNICIPAL EXPANSION, THESE PUBLIC
SERVICE ORGANIZATIONS HAVE NO VALID GROUND BY VIRTUE OF THE EQUAL
PROTECTION CLAUSE TO OBJECT TO SEPARATE TREATMENT RELATED TO SUCH
DISTINCTIONS.  CARRIERS MAY BE TREATED AS A SEPARATE CLASS (COMPARE
SEABOARD AIR LINE V. SEEGERS, 207 U.S. 73) AND, AS SUCH, TAXED
DIFFERENTLY OR ADDITIONALLY.  SOUTHERN R. CO. V. WATTS, 260 U.S. 519,
530.  THIS COURT HAS APPROVED THE ADOPTION OF MODES AND METHODS OF
ASSESSMENT AND ADMINISTRATION PECULIAR TO RAILROADS (KENTUCKY RAILROAD
TAX CASES, 115 U.S. 321, 337), AND UPHELD TAX RATES FOR RAILROADS
DIFFERING FROM THOSE ON OTHER PROPERTY, AND AS BETWEEN RAILROAD
TAXPAYERS, MICHIGAN CENTRAL R. CO. V. POWERS, 201 U.S. 245, 300; OHIO
TAX CASES, 232 U.S. 576, 590; COLUMBUS & G. RY. CO. V. MILLER, 283 U.S.
96.  SIMILARLY, WE HAVE EXPLICITLY RECOGNIZED THAT A STATE MAY SUBJECT
PUBLIC SERVICE CORPORATIONS TO A SPECIAL OR HIGHER INCOME TAX THAN
INDIVIDUALS OR OTHER CORPORATIONS.  ATLANTIC COAST LINE R. CO. V.
DAUGHTON, 262 U.S. 413, 424.  THE CORPORATION CONCEDES THIS GENERAL
RIGHT TO SET APART THE UTILITIES IN NEW YORK FOR TAXATION. 

THE CORPORATION IS BROUGHT WITHIN THE PURVIEW OF THE LOCAL LAWS
BECAUSE "UTILITY" IS DEFINED TO INCLUDE THOSE "SUBJECT TO THE
SUPERVISION OF THE DEPARTMENT OF PUBLIC SERVICE."  SEC. 1(E).  IT
CONTENDS THAT CLASSIFICATION IN AN EXCISE TAX, HOWEVER, SHOULD BE MADE
BY SPECIFIC REFERENCE TO THE CHARACTER OF THE BUSINESS TO BE TAXED, AND
THAT IT IS ARBITRARY TO MAKE TAXABILITY DEPEND ON WHETHER A PERSON IS
SUBJECT TO THE SUPERVISION OF A COMMISSION.  VALID REASON FOR THE
DEFINITION UTILIZED APPEARS FROM THE FACT THAT THE LOCAL LAWS MERELY
ADOPTED THE CLASSIFICATION PREVIOUSLY ESTABLISHED IN THE NEW YORK
PUBLIC SERVICE LAW (N.Y. LAWS 1910, C. 480, AS AMENDED) WHICH HAD
SELECTED THOSE OFFERING SEVERAL KINDS OF PUBLIC SERVICES, INCLUDING THE
TRANSPORTATION OF PERSONS AND PROPERTY (SEC. 25),  FN3  AND MADE THEM
SUBJECT TO THE SUPERVISION OF THE DEPARTMENT OF PUBLIC SERVICE. 

SEVERAL REASONS MAY BE SUGGESTED FOR THE SELECTION FOR SPECIAL TAX
BURDENS OF THE UTILITIES EMBRACED BY THE LOCAL LAWS UNDER DISCUSSION. 
WE MENTION A FEW.  THOSE SUBJECT TO THE SUPERVISION OF THE DEPARTMENT
OF PUBLIC SERVICE ARE ASSURED BY STATUTE THAT NEW PRIVATE ENTERPRISES
MAY NOT ENTER INTO DIRECT COMPETITION WITHOUT A SHOWING OF CONVENIENCE
AND NECESSITY FOR THE PUBLIC SERVICE  FN4  (SEE NEW YORK STEAM CORP. V.
CITY OF NEW YORK, 268 N.Y. 137, 147; 197 N.E. 172).  THE CORPORATION
SUGGESTS THAT THE STATUTE DOES NOT CURB COMPETITION FROM THE CITY'S OWN
RAPID TRANSIT LINES AND FROM TAXICABS.  FREEDOM FROM UNLIMITED, DIRECT,
PRIVATE COMPETITION IS OF ITSELF A SUFFICIENT ADVANTAGE OVER ORDINARY
BUSINESSES TO WARRANT THE IMPOSITION OF A HEAVIER TAX BURDEN.  REPORTS
WHICH MUST BE FILED WITH THE DEPARTMENT OF PUBLIC SERVICE ON THE BASIS
OF APPROVED SYSTEMS OF ACCOUNTING SUGGEST AN ADMINISTRATIVE CONVENIENCE
IN THE COLLECTION AND VERIFICATION OF THE TAX  FN5  WHICH MIGHT
PROPERLY HAVE BEEN TAKEN INTO ACCOUNT BY THE CITY'S LEGISLATURE.  SEE
CARMICHAEL V. SOUTHERN COAL & COKE CO., 301 U.S. 495, 511, AND CASES
CITED.  THE LEGISLATURE MAY REASONABLY HAVE CONCEIVED THAT THE REVENUES
OF UTILITIES FURNISHING INDISPENSABLE SERVICES ARE SUBJECT TO
RELATIVELY LITTLE FLUCTUATION, EVEN IN DEPRESSION TIMES, AND REASONABLY
HAVE SHAPED ITS TAX SYSTEM ACCORDINGLY. 

II.  DISCRIMINATION.  THE CORPORATION URGES HERE, AS THE LOWER STATE
COURTS HELD, THAT THESE GENERAL PRINCIPLES OF CLASSIFICATION ARE NOT
EFFECTIVE TO VALIDATE LEGISLATION WHERE, AS IN THESE LOCAL LAWS,
ARBITRARY, UNREASONABLE AND HOSTILE DISCRIMINATION AGAINST CERTAIN
RAILROAD COMPANIES IS SHOWN.  THIS UNLAWFUL DISCRIMINATION APPEARS,
BECAUSE "THEY ARE," AS THE CORPORATION SEES IT, "IN A FAR POORER
POSITION TO BEAR THE BURDEN OF UNEMPLOYMENT RELIEF THAN IS BUSINESS IN
GENERAL."  BUSINESS MAY PASS ON TAXES.  OTHER UTILITIES MAY APPLY TO
THE COMMISSION AND PERHAPS TO THE COURTS FOR AN ADEQUATE RATE
INCREASE.  THIS CORPORATION CANNOT DO SO AS BY CONTRACT NO. 4 WITH THE
CITY IT IS BOUND TO FURNISH TRANSPORTATION FOR A FIVE-CENT FARE, WHICH
BY CITY CHARTER PROVISION CANNOT BE CHANGED WITHOUT THE APPROVAL OF THE
PROPOSAL BY A MAJORITY OF THE QUALIFIED VOTERS, ON REFERENDUM.  FN6  IT
IS ALLEGED IN THE COMPLAINT THAT RAPID TRANSIT CORPORATIONS ARE LESS
ABLE TO PAY A GROSS RECEIPTS TAX THAN OTHER UTILITIES, WHOSE GROSS
INCOME YIELDS A HIGHER PERCENTAGE OF PROFIT, THAT THE OPERATION AND
MAINTENANCE EXPENSES OF THESE CORPORATIONS ARE HIGHER IN RELATION TO
GROSS RECEIPTS THAN THOSE OF OTHER UTILITIES, THE RATIO OF NET INCOME
TO GROSS RECEIPTS, LOWER.  IT IS SAID TO BE HIGHLY DISCRIMINATORY TO
CLASSIFY THESE RAILROADS APART FROM OTHER BUSINESSES, OR IN THE SAME
GROUP AS OTHER UTILITIES.  THE DIFFERENCES FROM BUSINESS ARE NOT ENOUGH
AND FROM OTHER UTILITIES TOO GREAT TO JUSTIFY THIS ATTEMPTED
CLASSIFICATION, WHICH SETS THEM APART FROM BUSINESS AS A WHOLE, AND
YOKES THEM WITH OTHER UTILITIES. 

THE DISADVANTAGES COMPLAINED OF, AS TO FARE LIMITATIONS, ARE
APPLICABLE ONLY TO THE CORPORATION, A SINGLE MEMBER OF A CLASS OF
UTILITIES.  IT IS QUITE FORTUITOUS THAT THIS PARTICULAR CORPORATION
MUST SEEK ADJUSTMENTS IN FARE IN A PECULIAR WAY.  "THE LEGISLATURE IS
NOT REQUIRED TO MAKE METICULOUS ADJUSTMENTS IN AN EFFORT TO AVOID
INCIDENTAL HARDSHIPS," SEE GREAT ATLANTIC & PAC. TEA CO. V. GROSJEAN,
301 U.S. 412, 424.  "IF THE ACCIDENTS OF TRADE LEAD TO INEQUALITY OR
HARDSHIP, THE CONSEQUENCES MUST BE ACCEPTED AS INHERENT IN GOVERNMENT
BY LAW INSTEAD OF GOVERNMENT BY EDICT."  FOX V. STANDARD OIL CO., 294
U.S. 87, 102. 

IN COMPARING ITS BURDENS WITH THOSE OF OTHER UTILITIES, THE
CORPORATION, BY ITS ARGUMENT, SUGGESTS THAT A GROSS RECEIPTS TAX IS
INVALID WHILE A NET INCOME TAX IS VALID.  IN TAXING UTILITIES AS A
CLASS THE LEGISLATURE IS NOT REQUIRED TO MAKE "METICULOUS ADJUSTMENTS"
FOR A PARTICULAR SUB-CLASS OF UTILITY, SEE GREAT ATLANTIC & PAC. TEA
CO. V. GROSJEAN, 301 U.S. AT 424, SUPRA.  MOREOVER, WHILE TAXATION OF
NET INCOME IS APPORTIONED TO ABILITY TO PAY, AND IS THEREFORE "AN
EQUITABLE METHOD OF DISTRIBUTING THE BURDENS OF GOVERNMENT," SEE NEW
YORK EX REL. COHN V. GRAVES, 300 U.S. 308, 313, IT IS NOT A COMPULSORY
METHOD.  THERE ARE OTHER JUSTIFICATIONS FOR THE GROSS RECEIPTS TAX. 
UNCONCERNED WITH DISPUTES ABOUT PERMISSIBLE DEDUCTIONS, IT HAS GREATER
CERTITUDE AND FACILITY OF ADMINISTRATION THAN THE NET INCOME TAX, AN
IMPORTANT CONSIDERATION TO TAXPAYER AND TAX GATHERER ALIKE.  AND THE
VOLUME OF TRANSACTIONS INDICATED ON THE TAXPAYER'S BOOKS MAY BEAR A
CLOSER RELATION TO THE COST OF GOVERNMENTAL SUPERVISION AND PROTECTION
THAN THE ANNUAL PROFIT AND LOSS STATEMENT.  IN CLARK V. TITUSVILLE, 184
U.S. 329, WE REJECTED AN EQUAL PROTECTION OBJECTION TO A LICENSE TAX ON
MERCHANTS, WHICH WE SAID (P. 334) WAS "A TAX ON THE PRIVILEGE OF DOING
BUSINESS REGULATED BY THE AMOUNT OF SALES, AND  ...  NOT REPUGNANT TO
THE CONSTITUTION OF THE UNITED STATES."  AND WE HAVE HERETOFORE HAD
OCCASION TO REMARK THAT GROSS RECEIPTS FROM AN OCCUPATION CONSTITUTES
AN "APPROPRIATE MEASURE OF THE PRIVILEGE" OF ENGAGING IN THAT
OCCUPATION, WESTERN LIVE STOCK V. BUREAU OF REVENUE, 303 U.S. 250;
AMERICAN MANUFACTURING CO. V. ST. LOUIS, 250 U.S. 459, 463; MAINE V.
GRAND TRUNK RY. CO., 142 U.S. 217, 228. 

RELIANCE IS PLACED UPON CERTAIN LANGUAGE OF THE OPINION IN STEWART
DRY GOODS CO. V. LEWIS, 294 U.S. 550.  BUT THE TAX ON RETAILERS HELD
INVALID IN THAT CASE INCREASED IN RATE WITH INCREASING VOLUME.  THE
COURT SAID THAT THE EXCISE WAS LAID UPON THE MAKING OF A SALE, AND THAT
THE STATUTE "EXACTS FROM TWO PERSONS DIFFERENT AMOUNTS FOR THE
PRIVILEGE OF DOING EXACTLY SIMILAR ACTS BECAUSE THE ONE HAS PERFORMED
THE ACT OFTENER THAN THE OTHER" (P. 566).  FOR THAT REASON IT WAS
THOUGHT NECESSARY TO INQUIRE WHETHER THE TAX COULD BE JUSTIFIED AS
RELATED TO ABILITY TO PAY, AN INQUIRY WE NEED NOT HERE PURSUE.  THE
COURT DID NOT CONDEMN A FIXED-RATE GROSS RECEIPTS TAX, SUCH AS IS
INVOLVED IN THE PRESENT CASE.  INDEED IT SUGGESTED THAT THE "DESIRED
END" MIGHT HAVE BEEN SECURED BY THE WIDELY ADOPTED "FLAT TAX ON SALES"
(P. 563), AND INDICATED BY WAY OF CONTRAST THAT THOUGH SUCH A TAX
"WOULD IMPOSE A HEAVIER BURDEN ON THE TAXPAYER HAVING THE GREATER
VOLUME OF SALES" THE GRADUATED TAX UNDER CONSIDERATION EXACTED NOT ONLY
A LARGER GROSS AMOUNT BUT ONE "LARGER IN PROPORTION TO SALES" (P.
564). 

III.  RELATION TO OBJECT OF LEGISLATION.  AS A FURTHER GROUND FOR THE
INVALIDITY OF THE LOCAL LAWS THE CORPORATION URGES THAT "THE
CLASSIFICATION MUST REST UPON SOME GROUND OF DIFFERENCE, HAVING A FAIR
AND SUBSTANTIAL RELATION TO THE OBJECT OF THE LEGISLATION."  IT IS
ASSERTED, AND CORRECTLY SO, THAT THE LOCAL LAWS IN QUESTION, AS WELL AS
THE STATE ENABLING STATUTES, SHOW BY THEIR TITLES AND CONTENT THAT THE
PROCEEDS OF THE CHALLENGED TAXES WERE FOR THE RELIEF OF UNEMPLOYMENT. 
FN7  VIOLATION OF THE RULE INVOKED, IT IS ASSERTED, OCCURS FROM THE
DISCRIMINATION SHOWN BY THE LEGISLATION IN RAISING "A SPECIAL FUND FOR
THE PARTICULAR PURPOSE" FROM TAXPAYERS NO MORE RESPONSIBLE THAN OTHERS
FOR THE CONDITIONS.  THE CORPORATION SEEMS TO BE OF THE OPINION THAT NO
"STATE OR CITY CAN, WITHOUT CONFLICT WITH THE CONSTITUTION, ADOPT A TAX
STATUTE, WHICH STATES A SPECIFIC OBJECT SOUGHT TO BE ACCOMPLISHED
THEREBY AND WHICH AT THE SAME TIME PUTS THE ENTIRE BURDEN OF THE TAX
UPON ONE PARTICULAR CLASS OF BUSINESS, EVEN THOUGH THAT CLASS IS IN NO
DIFFERENT POSITION IN RELATION TO THE OBJECT SOUGHT TO BE ACCOMPLISHED
THAN BUSINESS IN GENERAL."  THE BRIEF STATES THE POINT TO BE "THAT
THERE IS A DISTINCTION BETWEEN THE ORDINARY EXCISE TAX WITH NO SPECIFIC
PURPOSE ATTACHED THERETO, AND A TAX WHICH IS A PART OF A PLAN FOR THE
ACCOMPLISHMENT OF A SPECIFIED OBJECT."  THE "OBJECT OF THE
LEGISLATION," TO THE TAXPAYER, IS APPARENTLY THE RELIEF OF
UNEMPLOYMENT. 

WHILE, OF COURSE, THE OBJECT OF THIS LEGISLATION IS IN A SENSE TO
RELIEVE UNEMPLOYMENT, THIS IS THE OBJECT OF THE APPROPRIATION OF THE
PROCEEDS OF THE TAX.  THE "OBJECT," AS USED IN THE RULE AND CASES
REFERRED TO BY THE CORPORATION, IS THE OBJECT OF THE TAXING PROVISIONS,
I. E., THE RAISING OF THE MONEY.  IF THE DESIGNATION OF UTILITIES AS
THE ONLY TAXPAYERS UNDER THE LEGISLATION IN QUESTION DOES NOT DENY TO
THEM THE EQUAL PROTECTION OF THE LAWS, THE FACT THAT AN APPROPRIATION
OF THE FUNDS FOR RELIEF IS A PART OF THE LEGISLATION IS NOT
SIGNIFICANT.  "A TAX IS NOT AN ASSESSMENT OF BENEFITS."  CARMICHAEL V.
SOUTHERN COAL & COKE CO., 301 U.S. 495, 522.  TAXES ARE REPEATEDLY
IMPOSED ON A GROUP OR CLASS WITHOUT REGARD TO RESPONSIBILITY FOR THE
CREATION OR RELIEF OF THE CONDITIONS TO BE REMEDIED.  IDEM, NOTE 14, P.
522.  THE CARMICHAEL CASE INVOLVED A STATE ACT WHICH LEVIED A TAX ON
EMPLOYERS OF EIGHT OR MORE TO PROVIDE UNEMPLOYMENT BENEFITS FOR WORKERS
EMPLOYED BY THIS CLASS OF EMPLOYERS.  IT WAS URGED THAT THE
CLASSIFICATION SHOULD HAVE BEEN BASED ON THE UNEMPLOYMENT RECORD OF THE
EMPLOYER, I. E., SHOULD HAVE BORNE A RELATION TO THE OBJECT OF
UNEMPLOYMENT RELIEF.  AGAINST THIS CONTENTION, THAT THERE WAS NO
RELATION BETWEEN THE CLASS OF TAXPAYERS AND THE PURPOSE FOR WHICH THE
FUND WAS RAISED, THIS COURT HELD THAT IT IS NOT NECESSARY THAT THERE BE
"SUCH A RELATIONSHIP BETWEEN THE SUBJECT OF THE TAX (THE EXERCISE OF
THE RIGHT TO EMPLOY) AND THE EVIL TO BE MET BY THE APPROPRIATION OF THE
PROCEEDS (UNEMPLOYMENT)" P. 522.  SEE ALSO CINCINNATI SOAP CO. V.
UNITED STATES, 301 U.S. 308, 313.  THE CORPORATION SUGGESTS THAT IN THE
CARMICHAEL CASE THERE WAS A SPECIAL RELATIONSHIP BETWEEN THE CLASS
TAXED AND THE PURPOSE FOR WHICH THE PROCEEDS WERE SPENT, BUT THE COURT
EXPRESSLY SAID THAT THIS WAS SOMETHING "THE CONSTITUTION DOES NOT
REQUIRE" (P. 523).  THERE NEED BE NO RELATION BETWEEN THE CLASS OF
TAXPAYERS AND THE PURPOSE OF THE APPROPRIATION. 

THE CASES CITED BY THE CORPORATION TO SUSTAIN ITS CONTENTION THAT
CLASSIFICATION MUST REST UPON SOME GROUND OF DIFFERENCE HAVING A FAIR
AND SUBSTANTIAL RELATION TO THE OBJECT OF THE LEGISLATION, DO NOT
SUPPORT THE CONCLUSION THAT THE "OBJECT" REFERRED TO IS THE PURPOSE FOR
WHICH THE PROCEEDS ARE TO BE SPENT.  THESE AUTHORITIES RATHER SUPPORT
THE VIEW THAT THE "OBJECT" IS THE REVENUE TO BE RAISED BY THE ACTS.  IN
COLGATE V. HARVEY, 296 U.S. 404, IT WAS RECOGNIZED THAT THE
CLASSIFICATION "MUST REST UPON SOME GROUND OF DIFFERENCE HAVING A FAIR
AND SUBSTANTIAL RELATION TO THE OBJECT OF THE LEGISLATION" (P. 423) BUT
IT WAS SAID (P. 424) THAT "THE OBJECT OF THE ACT  ...  SIMPLY IS TO
SECURE REVENUE."  IN STEBBINS V. RILEY, 268 U.S. 137, ROYSTER GUANO CO.
V. VIRGINIA, 253 U.S. 412, AND AIR WAY APPLIANCE CORP. V. DAY, 266 U.S.
71, THE RULE CONTENDED FOR BY THE CORPORATION WAS RECOGNIZED BUT WITH
NO INTIMATION THAT THE "OBJECT" WAS CONSIDERED TO BE THE PURPOSE FOR
WHICH THE PROCEEDS OF THE TAX WERE SPENT.  THE "OBJECT" OF THE LOCAL
LAWS UNDER CONSIDERATION, AS IN THE CASE WITH MOST TAX STATUTES, WAS
OBVIOUSLY TO SECURE REVENUE.  IN SOME CASES A CLASSIFICATION OF
TAXPAYERS MAY BE UPHELD AS HAVING A FAIR AND SUBSTANTIAL RELATION TO A
CONSTITUTIONAL NON-FISCAL OBJECT (ALASKA FISH CO. V. SMITH, 255 U.S.
44, 48; QUONG WING V. KIRKENDALL, 223 U.S. 59, 62, 63; AERO MAYFLOWER
TRANSIT CO. V. GEORGIA PUBLIC SERVICE COMM'N, 295 U.S. 285, 291), BUT
IT IS NOT CONSTITUTIONALLY NECESSARY THAT THE CLASSIFICATION BE RELATED
TO THE APPROPRIATION.  IN UNITED STATES V. BUTLER, 297 U.S. 1, ALSO
RELIED UPON BY THE CORPORATION, THE ATTACK ON THE FEDERAL STATUTE WAS
SUCCESSFUL BECAUSE THE TAX WAS SAID TO BE A PART OF AN UNCONSTITUTIONAL
SCHEME TO REGULATE PRODUCTION THROUGH EXPENDITURES.  IT WAS NOT HELD
INVALID BECAUSE THERE WAS NO RELATION BETWEEN THE TAXPAYER AND THE
APPROPRIATION.  SEE CINCINNATI SOAP CO. V. UNITED STATES, SUPRA.  WE
CONCLUDE, THEREFORE, THAT THE PROVISIONS OF THE LEGISLATION EARMARKING
THE FUNDS COLLECTED ARE NOT OF IMPORTANCE IN DETERMINING WHETHER OR NOT
THE CLASSIFICATION OF THE CHALLENGED ACTS IS DISCRIMINATORY. 

WHAT WE HAVE SAID IN SHOWING THAT THE LOCAL LAWS DO NOT DENY THE
EQUAL PROTECTION OF THE LAWS ALSO DISPOSES OF THE CORPORATION'S
CONTENTION THAT THE LOCAL LAWS CONSTITUTE A DEPRIVATION OF DUE PROCESS,
AS BEING MEASURED WITHOUT REGARD TO THE NET INCOME OF OR RUINOUS EFFECT
ON THE TAXPAYERS, AND AS LAYING ON A PARTICULAR CLASS A BURDEN WHICH
SHOULD BE BORNE BY ALL. 

IV.  CONTRACTS CLAUSE.  FN8  THE CORPORATION CONTENDS THAT, IN
CONTRAVENTION OF THE CONSTITUTION, ARTICLE 1, SEC. 10, THE LOCAL LAWS
IMPAIR THE OBLIGATION OF THE CONTRACT KNOWN AS CONTRACT NO. 4, ENTERED
INTO MARCH 19, 1913, BETWEEN ITS PREDECESSOR AND THE CITY, UNDER WHICH
IT OPERATES ITS OWNED AND LEASED PROPERTIES IN NEW YORK. 

BY THE TERMS OF THE CONTRACT, AS SUMMARIZED IN THE CORPORATION'S
COMPLAINT, THE CITY AGREED TO CONSTRUCT CERTAIN RAPID TRANSIT
RAILROADS, AND THE NEW YORK MUNICIPAL RAILWAY CORPORATION, APPELLANT'S
PREDECESSOR, AGREED TO CONTRIBUTE A PORTION OF THE COST OF CONSTRUCTION
AND TO EQUIP THE RAILROADS FOR OPERATION.  THE LATTER FURTHER AGREED TO
RECONSTRUCT AND BUILD ADDITIONS TO CERTAIN EXISTING RAILROADS, WHICH IT
THEN HAD THE RIGHT AND DUTY TO OPERATE, SO AS TO ADAPT THEM FOR
OPERATION IN CONJUNCTION WITH THE RAILROADS TO BE CONSTRUCTED BY THE
CITY.  UNDER THE TERMS OF CONTRACT NO. 4, THE CITY LEASED THE RAILROADS
WHICH IT AGREED TO CONSTRUCT, AND THEIR EQUIPMENT, WHICH WAS TO BE
FURNISHED BY THE LESSEE, TO THE NEW YORK MUNICIPAL RAILWAY CORPORATION,
ITS SUCCESSORS AND ASSIGNS, FOR A TERM OF FORTY-NINE YEARS COMMENCING
ON OR ABOUT THE FIRST DAY OF JANUARY, 1917, AND THE LESSEE AGREED TO
OPERATE SAID RAILROADS TO BE CONSTRUCTED BY THE CITY IN CONJUNCTION
WITH THE EXISTING RAILROADS AS ONE SYSTEM, AND FOR A SINGLE FARE NOT
EXCEEDING FIVE CENTS. 

THE GROSS RECEIPTS OF ALL THE RAILROADS COMBINED FROM WHATEVER SOURCE
DERIVED, DIRECTLY OR INDIRECTLY, WERE TO BE POOLED.  THE CITY AND ITS
LESSEE WERE TO SHARE THE RECEIPTS EQUALLY AFTER THE DEDUCTION OF
CERTAIN ITEMS PROVIDED IN ARTICLE XLIX OF CONTRACT NO. 4.  IT WILL
SUFFICE HERE IF WE SUMMARIZE THE PROVISIONS FOR DEDUCTIONS IN THE
LANGUAGE OF APPELLANT.  THE DEDUCTIONS WERE FOR THE FOLLOWING PURPOSES
AND IN THE FOLLOWING ORDER: 

"1.  RENTALS ACTUALLY PAID BY LESSEE UNDER LEASES APPROVED BY THE
COMMISSION; 

"2.  TAXES (THE FULL PROVISION AS TO 'TAXES' IS SET FORTH LATER); 

"3.  OPERATING EXPENSES EXCLUSIVE OF MAINTENANCE; 

"4.  CHARGES FOR MAINTENANCE OF BOTH THE RAILROAD AND THE EXISTING
RAILROADS (RAILROAD REFERS TO THE SYSTEM TO BE CONSTRUCTED BY THE CITY;
EXISTING RAILROADS REFERS TO THE COMPANY-OWNED LINES AS THEY EXISTED AT
THE TIME OF EXECUTION OF THE CONTRACT); 

"5.  CHARGES FOR DEPRECIATION OF THE RAILROAD, THE EQUIPMENT, AND THE
EXISTING RAILROADS; 

"6.  TO BE RETAINED BY THE LESSEE:  1/4TH OF $3,500,000, REPRESENTING
THE AVERAGE INCOME FROM OPERATION OF THE EXISTING RAILROADS; 

"7.  TO BE RETAINED BY THE LESSEE:  1/4TH OF 6% PER ANNUM ON (A) THE
LESSEE'S CONTRIBUTION TO COST OF CONSTRUCTION OF THE RAILROAD, (B) COST
OF EQUIPMENT FURNISHED BY THE LESSEE, (C) COST OF EXTENSIONS AND
ADDITIONAL TRACKS CONSTRUCTED BY THE LESSEE, AND (D) COST OF
RECONSTRUCTION OF EXISTING RAILROADS (OUT OF WHICH QUARTERLY PAYMENTS
THE LESSEE IS REQUIRED TO AMORTIZE SUCH COSTS); 

"8.  TO BE RETAINED BY THE LESSEE:  1/4TH OF THE ACTUAL ANNUAL
INTEREST PAYABLE BY LESSEE UPON THE COST OF ADDITIONAL EQUIPMENT, PLUS
AN AMORTIZATION CHARGE; 

"9.  TO BE PAID TO THE CITY:  1/4TH OF THE ANNUAL INTEREST PAYABLE BY
IT UPON ITS SHARE OF THE COST OF CONSTRUCTION OF THE RAILROAD PLUS AN
AMORTIZATION CHARGE; 

"10.  TO BE PAID TO THE CITY:  1/4TH OF THE ANNUAL INTEREST PAYABLE
BY THE CITY UPON COST OF CONSTRUCTION OF ADDITIONS TO THE RAILROAD PLUS
AN AMORTIZATION CHARGE; 

"11.  1% OF THE GROSS RECEIPTS, TO BE PAID INTO A CONTINGENT RESERVE
FUND. 

"IN CONNECTION WITH THE ABOVE ALLOCATION PROVISIONS, CONTRACT NO. 4
PROVIDED (ART. LI, P. 66) THAT IF IN ANY QUARTER THE GROSS RECEIPTS
SHOULD BE INSUFFICIENT TO MEET THE VARIOUS OBLIGATIONS AND DEDUCTIONS
ABOVE RECITED, THE DEFICITS SHOULD BE CUMULATIVE, AND PAYMENT THEREOF
SHOULD BE MADE IN THE ORDER OF PRIORITY ABOVE SET FORTH." 

THE CORPORATION DOES NOT CLAIM THAT CONTRACT NO. 4 EXEMPTS IT OR ITS
PROPERTY FROM TAXATION GENERALLY.  IT DOES ASSERT THAT THE CITY "MAY
NOT, IN THE EXERCISE OF ITS GOVERNMENTAL POWER, SUBJECT APPELLANT TO
THE PAYMENT OF A TAX ON OR MEASURED BY THE GROSS RECEIPTS OF THE
COMBINED SYSTEM OF RAILROADS," AND THAT "BY PROVIDING IN SPECIFIC TERMS
FOR THE DISPOSITION AND ALLOCATION OF THE ENTIRE GROSS RECEIPTS, THE
PARTIES NECESSARILY PRECLUDED ANY KIND OF TAX OR CHARGE BY THE CITY
WHICH WOULD DIRECTLY AND SPECIFICALLY ALTER SUCH DISPOSITION AND
ALLOCATION, TO APPELLANT'S PREJUDICE, EXCEPT IN SO FAR AS ANY SUCH TAX
OR CHARGE MAY CLEARLY BE SAID TO HAVE BEEN PROVIDED FOR IN THE CONTRACT
PROVISIONS AS TO THE DISPOSITION OF GROSS RECEIPTS." 

THE CORPORATION FURTHER COMPLAINS THAT THE TAX PAYMENTS DEPRIVE IT OF
"A SUBSTANTIAL PART OF THE INTEREST AND SINKING FUND ALLOWANCE TO WHICH
IT WAS ENTITLED" UNDER DEDUCTIONS NOS. 7 AND 8 SET OUT ABOVE.  THE LOSS
THUS SUFFERED WAS ALLEGED TO TOTAL MORE THAN $600,000. 

WE SEARCH IN VAIN FOR ANY PROVISION IN THE CONTRACT WHICH EXPRESSLY
EXEMPTS THE CORPORATION FROM PAYMENT OF THIS TAX, OR INDEED OF ANY
TAX.  YET THIS IS WHAT IS REQUIRED BEFORE SUPPORT CAN BE OBTAINED FROM
THE CONTRACTS CLAUSE.  MORE THAN A HUNDRED YEARS AGO IT WAS STATED BY
CHIEF JUSTICE MARSHALL, IN PROVIDENCE BANK V. BILLINGS, 4 PET. 514,
563, THAT THE TAXING POWER IS OF SUCH "VITAL IMPORTANCE" THAT "WE MUST
LOOK FOR THE EXEMPTION IN THE LANGUAGE OF THE INSTRUMENT; AND IF WE DO
NOT FIND IT THERE, IT WOULD BE GOING VERY FAR TO INSERT IT BY
CONSTRUCTION."  IN ERIE RY. CO. V. PENNSYLVANIA, 21 WALL.  492, 499,
THIS COURT SAID THAT "THE LANGUAGE IN WHICH THE SURRENDER IS MADE MUST
BE CLEAR AND UNMISTAKABLE."  AT THE PRESENT TERM, THE COURT HAS
REITERATED THAT CONTRACTS OF TAX EXEMPTION ARE "TO BE READ NARROWLY AND
STRICTLY," HALE V. STATE BOARD, 302 U.S. 95, 109.  SEE ALSO PACIFIC CO.
V. JOHNSON, 285 U.S. 480, 491; PUGET SOUND POWER & LIGHT CO. V.
SEATTLE, 291 U.S. 619, 627. 

NOT ONLY IS THE CORPORATION UNABLE TO POINT TO AN UNMISTAKABLE
EXEMPTION, BUT THE CONTRACT ITSELF CONTAINS AN EXPRESS PROVISION
PERMITTING THE DEDUCTION OF TAXES FROM THE GROSS RECEIPTS.  FN9  ITS
LANGUAGE IS BROAD.  IT REFERS TO "ALL TAXES  ...  OF EVERY DESCRIPTION
(WHETHER ON PHYSICAL PROPERTY, STOCK OR SECURITIES, CORPORATE OR OTHER
FRANCHISES, OR OTHERWISE) ASSESSED OR WHICH MAY HEREAFTER BE ASSESSED
AGAINST THE LESSEE IN CONNECTION WITH  ...  THE OPERATION OF THE ...
RAILROADS."  THE TAXES UNDER DISCUSSION CLEARLY COME WITHIN ITS TERMS. 
IT IS ALLEGED THAT AT THE TIME OF THE EXECUTION OF THE CONTRACTS, AND
PRIOR TO THE PASSAGE OF THE STATE ENABLING ACTS,  FN10  THE TAX POWER
OF THE CITY WAS CONFINED TO SPECIAL ASSESSMENTS FOR PUBLIC
IMPROVEMENTS, AND AD VALOREM TAXES ON REAL ESTATE AND SPECIAL
FRANCHISES ISSUED BY THE CITY.  THE CORPORATION INSISTS THAT IT WAS
CONTEMPLATED THAT NO OTHER TYPE OF TAX WOULD BE ASSESSED, AND THAT IT
WAS NOT NECESSARY TO MAKE PROVISION FOR EXEMPTION SINCE THE CORPORATION
WAS MERELY ACCEPTING THE TAX BURDEN COMMON TO ALL OWNERS OF PROPERTY. 
IT IS URGED THAT THE CONTRACT BE INTERPRETED FROM THIS POINT OF VIEW,
AND THE PROVISION LIMITED TO TAXES OF THE TYPE WHICH THE CITY COULD
HAVE IMPOSED IN 1913. 

THERE IS NO REASON TO LIMIT THE ORDINARY MEANING OF WORDS USED IN A
CONTRACT BY MEN PREPARED TO INVEST UNDER ITS TERMS.  "...  A BUSINESS
PROPOSITION INVOLVING THE OUTLAY OF VERY LARGE SUMS CANNOT BE AND IS
NOT TAKEN BY THE PARTIES CONCERNED ACCORDING TO OFFHAND IMPRESSIONS; IT
IS SCRUTINIZED PHRASE BY PHRASE AND WORD BY WORD."  NEW YORK V. SOHMER,
237 U.S. 276, 284; CF. OHIO INS. CO. V. DEBOLT, 16 HOW.  416, 435. 

WHERE THE INTENTION WAS TO PREVENT THE IMPOSITION OF NEW TAXES,
ADEQUATE LANGUAGE WAS AVAILABLE.  THE COURT BELOW ADVERTED TO ITS
OPINION IN BROOKLYN BUS CORP. V. CITY OF NEW YORK, 274 N.Y. 140; 8
N.E.2D 309, WHERE THE CONTRACT ENTITLED THE CORPORATION TO A BROADER
TAX EXEMPTION BECAUSE IT PROVIDED THAT "ANY NEW FORM OF TAX OR
ADDITIONAL CHARGE THAT MAY BE IMPOSED BY ANY ORDINANCE OF THE CITY OR
RESOLUTION OF THE BOARD UPON OR IN RESPECT OF THE FRANCHISE  ...  SHALL
BE DEDUCTED FROM THE COMPENSATION PAYABLE TO THE CITY HEREUNDER  ..." 

A SIMILAR SUGGESTION THAT THE CONTRACT BE LIMITED TO THE TAXES KNOWN
AT THE TIME OF ITS MAKING WAS URGED UPON US, AND DISCARDED, IN J. W.
PERRY CO. V. NORFOLK, 220 U.S. 472.  UNDER A LEASE MADE BY NORFOLK IN
1792, WHEN NORFOLK WAS A BOROUGH WITHOUT POWER TO TAX, THE LESSEE
AGREED TO PAY, IN ADDITION TO RENT, "THE PUBLIC TAXES WHICH SHALL
BECOME DUE ON SAID LAND."  THE LESSEE SOUGHT TO ENJOIN THE COLLECTION
OF TAXES IN 1906 BY THE CITY OF NORFOLK, ON THE GROUND THAT THE PARTIES
CONTEMPLATED ONLY TAXES IMPOSED BY VIRGINIA OR THE UNITED STATES.  THIS
COURT HELD THAT THE LANGUAGE WAS BROAD ENOUGH TO COVER THE CITY TAX,
SAYING (P. 480), THAT "THE PROVISION THAT THE LESSEE WAS TO 'PAY PUBLIC
TAXES' WAS SUFFICIENTLY COMPREHENSIVE TO EMBRACE MUNICIPAL TAXES
WHENEVER THEY COULD THEREAFTER BE LAWFULLY ASSESSED ON LAND OR THE
IMPROVEMENTS WHICH WERE A PART OF THE LAND.  WHERE ONE RELIES UPON AN
EXEMPTION FROM TAXATION, BOTH THE POWER TO EXEMPT AND THE CONTRACT OF
EXEMPTION MUST BE CLEAR.  ANY DOUBT OR AMBIGUITY MUST BE RESOLVED IN
FAVOR OF THE PUBLIC." 

ADMITTING THAT WITH RESPECT TO A FRANCHISE CONTRACT SILENT AS TO
TAXES THE CITY MAY VALIDLY IMPOSE A LICENSE TAX ON THE PRIVILEGE OF
DOING BUSINESS, SINCE "SURRENDER OF THE STATE'S POWER TO TAX THE
PRIVILEGE IS NOT TO BE IMPLIED FROM THE GRANT OF IT," PUGET SOUND POWER
& LIGHT CO. V. SEATTLE, 291 U.S. 619, 627, IT IS URGED BY THE
CORPORATION THAT HERE THE CITY IS VIOLATING THE AFFIRMATIVE COVENANTS
OF A CONTRACT, NAMELY, THE PROVISIONS FOR ALLOCATION OF REVENUE.  THE
CONTENTION IS MADE THAT THESE PROVISIONS PRECLUDE AN "ALTERATION" BY
VIRTUE OF A GROSS RECEIPTS TAX. 

THIS COURT, IN CONSTRUING A CONTRACT TO DETERMINE WHETHER OR NOT
LEGISLATION IS VIOLATIVE OF ITS PROVISIONS WITHIN THE MEANING OF THE
CONTRACT CLAUSE OF THE CONSTITUTION, WILL EXAMINE FOR ITSELF THE
EXISTENCE AND MEANING OF THE CONTRACT AS WELL AS THE RELATION OF THE
PARTIES AND THE CIRCUMSTANCES OF ITS EXECUTION.  APPLEBY V. CITY OF NEW
YORK, 271 U.S. 364, 379-380; FUNKHOUSER V. PRESTON CO., 290 U.S. 163,
167; VIOLET TRAPPING CO. V. GRACE, 297 U.S. 119, 120.  BUT OF COURSE IN
SO DOING WE "LEAN TOWARD AGREEMENT WITH THE COURTS OF THE STATE, AND
ACCEPT THEIR JUDGMENTS AS TO SUCH MATTERS UNLESS MANIFESTLY WRONG,"
HALE V. STATE BOARD, 302 U.S. 95, 101; TAMPA WATER WORKS CO. V. TAMPA,
199 U.S. 241, 243-244; SOUTHERN WISCONSIN RY. CO. V. MADISON, 240 U.S.
457, 461.  IN THIS CASE THE COURT OF APPEALS OF NEW YORK, 275 N.Y. 258,
268; 9 N.E.2D 858, HAS DETERMINED THAT "THE RIGHT TO TAX CANNOT BE LOST
BY SUCH TENUOUS IMPLICATION," I.E., ON THE THEORY THAT THE TAX ENABLES
THE CITY TO SECURE A PORTION OF THE GROSS INCOME IN CONTRAVENTION OF
THE CONTRACT.  WE SEE NO REASON FOR DISAGREEING WITH THE CONCLUSION OF
THE COURT OF APPEALS OF NEW YORK UPON THIS POINT. 

IN EFFECT, THE CORPORATION IS URGING THAT A CONSTRUCTIVE CONDITION
RESTRICTING THE CITY'S POWER OF TAXATION SHOULD BE INCORPORATED IN THE
CONTRACT, BY SPECULATION AS TO WHAT THE PARTIES MUST NECESSARILY HAVE
INTENDED, DESPITE THE LONG STANDING RULE THAT EXEMPTIONS MUST BE "CLEAR
AND UNMISTAKABLE."  ERIE RY. CO. V. PENNSYLVANIA, 21 WALL.  492, AND
OTHER CASES, ALL CITED SUPRA. 

THE CORPORATION PROFESSES TO DREAD AN INTERPRETATION OF THE CONTRACT
AND THE LEGISLATION, WHICH WILL PUT IT "WHOLLY AT THE MERCY" OF THE
CITY; UNDER WHICH THE CORPORATION'S GROSS RECEIPTS WOULD BE DISPOSED
OF, NOT AS CONTRACT NO. 4 PROVIDES, BUT AS THE CITY MAY FROM TIME TO
TIME IN ITS WISDOM DETERMINE."  THE CORPORATION IS NOT DEPRIVED OF ITS
RIGHT TO RESIST ON CONSTITUTIONAL OR LEGAL GROUNDS WHATEVER TAX OR
ASSESSMENT MAY BE IMPOSED UPON IT OR ITS PROPERTY.  THE CITY CAN NOT
LAY A GROSS RECEIPTS TAX ON THE CORPORATION UNLESS IT SELECTS A CLASS
OF TAXPAYERS WHICH MEETS THE REQUIREMENT OF THE EQUAL PROTECTION OF THE
LAWS.  THE PROVISIONS OF THE CONTRACT AS TO TAXES ARE CERTAINLY NOT
SUFFICIENTLY EXPLICIT TO JUSTIFY US IN DENYING TO THE CITY THE RIGHT TO
COLLECT SUCH TAXES AS THOSE INVOLVED IN THIS LITIGATION.  THE DANGER
WHICH THE CORPORATION SEES FROM WHAT IT CONSIDERS TO BE A VIOLATION BY
LEGISLATION OF ITS CONTRACT RIGHTS IS A DANGER WHICH EVERY UTILITY,
WITH A FRANCHISE WHICH DOES NOT PROTECT ITS PROPERTY FROM ADDITIONAL
TAXATION, MUST ENDURE. 

CONVINCING PRECEDENT FOR THE CONTENTION OF THE CITY IS FOUND IN NORTH
MISSOURI R. CO. V. MAGUIRE, 20 WALL.  46, WHERE THIS COURT CONSIDERED A
STATUTE OF MISSOURI WHICH PROVIDED THAT THE RAILROAD COULD ISSUE BONDS
HAVING PRIORITY OVER THE STATE'S MORTGAGE.  THE ACT MADE SPECIFIC
PROVISION FOR THE ALLOCATION OF THE EARNINGS OF THE RAILROAD COMPANY IN
MUCH THE SAME MANNER AS CONTRACT NO. 4 DOES IN THE PRESENT CASE.  THE
ACT ESTABLISHED A "FUND COMMISSIONER" AND PROVIDED THAT THE RAILROAD
COMPANY SHOULD PAY OVER TO THIS COMMISSIONER "ALL THE GROSS EARNINGS
AND DAILY RECEIPTS."  IT WAS PROVIDED THAT THE COMMISSIONER SHOULD
FIRST PAY AMOUNTS REQUIRED FOR "ACTUAL CURRENT EXPENDITURES"; SHOULD
THEN MAKE OTHER SPECIFIED DEDUCTIONS, AND LASTLY, SHOULD APPLY ANY
EXCESS TO CERTAIN FIRST MORTGAGE BONDS AND THEN AGAINST THE RAILROAD'S
DEBT TO THE STATE. 

SUBSEQUENTLY THE STATE CONSTITUTION WAS AMENDED TO PROVIDE THAT AN
ANNUAL TAX OF 10% OF THE GROSS RECEIPTS SHOULD BE LEVIED ON THE NORTH
MISSOURI RAILROAD COMPANY AND TWO OTHER NAMED CORPORATIONS.  THE STATE
COURT HELD THAT THE EARLIER STATUTE CONSTITUTED A CONTRACT BUT
CONSIDERED THE PAYMENT OF TAXES TO FALL WITHIN "CURRENT EXPENDITURES
FOR CARRYING ON THE ORDINARY BUSINESS."  IN THIS COURT, THE COMPANY
ARGUED THAT THE TAX CONSTITUTED A VIOLATION OF THIS CONTRACT, SINCE IT
OVERTURNED THE ALLOCATION OF RECEIPTS AND HAD THE EFFECT OF CONVERTING
THE STATE FROM A JUNIOR CREDITOR TO A FIRST MORTGAGEE. 

THIS COURT AGREED THAT "SERIOUS DIFFICULTY" WOULD ARISE IF "THE
ORDINANCE WAS A MERE CHANGE OF THE ORDER OF DISBURSING THE RECEIPTS AND
EARNINGS," INSTEAD OF "AN EXPRESSION OF THE SOVEREIGN WILL OF THE
PEOPLE OF THE STATE LEVYING TAXES TO PAY AND DISCHARGE THE INDEBTEDNESS
OF THE STATE," BUT CONCLUDED THAT THE TAX ACTUALLY IMPOSED WAS PROPER. 
OF THE PROVISIONS FOR ALLOCATION OF THE GROSS RECEIPTS, THE COURT SAID
(P. 63): 

"FURTHER EXAMINATION OF THOSE PROVISIONS IS CERTAINLY UNNECESSARY, AS
IT IS TOO PLAIN FOR ARGUMENT THAT THEY DO NOT AFFORD THE SLIGHTEST
SUPPORT TO THE VIEWS OF THE PLAINTIFFS.  ON THE CONTRARY, THEY ARE
ENTIRELY SILENT UPON THE SUBJECT OF TAXATION, AND FULLY JUSTIFY THE
REMARKS OF THE STATE COURT WHEN THEY SAY THAT THE SUBJECT OF TAXATION
FORMS NO PART OF THE CONTRACT CONTAINED IN THE ACT UNDER
CONSIDERATION. 

"NOTHING IS SAID ABOUT TAXATION, AND IT DOES NOT SEEM TO HAVE ENTERED
INTO THE CONTRACT BETWEEN THE PARTIES, BUT WAS OBVIOUSLY LEFT WHERE THE
LAW HAD PLACED IT BEFORE THE ACT WAS PASSED, NOR WAS ANY PROVISION MADE
FOR THE PAYMENT OF TAXES UNLESS IT MAY BE HELD THAT THE DISBURSEMENTS
FOR THAT PURPOSE MAY FAIRLY BE INCLUDED IN SUCH AS ARE REQUIRED TO PAY
THE CURRENT EXPENDITURES IN CARRYING ON THE ORDINARY BUSINESS OF THE
CORPORATION." 

IN OUR OPINION, AS THE CONTRACT DOES NOT PROHIBIT THIS TAX, THE
LEGISLATION DOES NOT VIOLATE THE CONTRACTS CLAUSE.  AFFIRMED. 

FN1  UTILITIES SUBJECT TO THE SUPERVISION OF THE DEPARTMENT OF PUBLIC
SERVICE PAY THREE PER CENT. OF THEIR "GROSS INCOME," AS DEFINED BY SEC.
1(C); THE OTHER UTILITIES PAY THREE PER CENT. OF THEIR "GROSS OPERATING
INCOME," AS DEFINED BY SEC. 1(D). 

FN2  N.Y. LAWS 1934, C. 873, AUTHORIZED ANY CITY OF A MILLION
INHABITANTS TO IMPOSE FOR PURPOSES OF UNEMPLOYMENT RELIEF ANY TAX
WITHIN THE POWERS OF THE STATE LEGISLATURE, INCLUDING A TAX ON GROSS
INCOME OR GROSS RECEIPTS OF THOSE DOING BUSINESS IN THE CITY.  THE ACT
SPECIFICALLY PROVIDED (SEC. 2) THAT THE REVENUES SHALL BE DEPOSITED IN
A SEPARATE BANK ACCOUNT AND USED SOLELY FOR THE RELIEF PURPOSES.  THE
AUTHORITY GRANTED BY THIS STATUTE EXPIRED DECEMBER 31, 1935, BUT WAS
EXTENDED, WITH CERTAIN RESTRICTIONS NOT MATERIAL HERE, UNTIL JULY 1,
1936, BY N.Y. LAWS 1935, C. 601. 

FN3  OTHERS ARE THE PRODUCTION AND/OR FURNISHING OF GAS, ELECTRICITY,
STEAM, AND WATER, COMMUNICATION BY TELEGRAPH OR TELEPHONE, OMNIBUS
TRANSPORTATION.  NEW YORK PUBLIC SERVICE LAW, SECS. 64, 78, 89-A, 90,
60. 

FN4  NEW YORK PUBLIC SERVICE LAW (LAWS 1910, C. 480), AS AMENDED:
SEC. 53(RAILROAD; STREET RAILROAD); SEC. 63-D (OMNIBUS); SEC. 68(GAS;
ELECTRICITY); SEC. 81(STEAM); SEC. 89-E (WATER); SEC. 99(1)(TELEPHONE
AND TELEGRAPH). 

FN5  OPERATING REVENUES ARE REPORTED BY RAILROADS.  SEE, E. G.,
TRANSIT COMMISSION, SUMMARY OF REPORTS OF RAPID TRANSIT, STREET SURFACE
RAILWAY AND BUS COMPANIES OPERATING IN THE CITY OF NEW YORK FOR THE
QUARTER APRIL-JUNE, 1935, AND FOR THE FISCAL YEAR ENDED JUNE 30, 1935;
ID., QUARTER, APRIL-JUNE, 1936, AND FOR THE FISCAL YEAR ENDED JUNE 30,
1936. 

FN6  CITY OF NEW YORK, LOCAL LAW NO. 16 OF 1925. 

THE ARGUMENT IS APPLICABLE IN NO. 436.  THERE THE LIMITATION ON FARE
EXISTS IN A FRANCHISE, ALLEGED IN THE COMPLAINT TO BE BEYOND THE
REGULATORY POWER OF THE TRANSIT COMMISSION. 

FN7  N.Y. LAWS 1934, C. 873(THE ENABLING ACT): 

"AN ACT TO ENABLE, TEMPORARILY, ANY CITY OF THE STATE HAVING A
POPULATION OF ONE MILLION INHABITANTS OR MORE TO ADOPT AND AMEND LOCAL
LAWS, IMPOSING IN ANY SUCH CITY ANY TAX AND/OR TAXES WHICH THE
LEGISLATURE HAS OR WOULD HAVE POWER AND AUTHORITY TO IMPOSE TO RELIEVE
THE PEOPLE OF ANY SUCH CITY FROM THE HARDSHIPS AND SUFFERING CAUSED BY
UNEMPLOYMENT AND TO LIMIT THE APPLICATION OF SUCH LOCAL LAWS.... 

"SEC. 2.  REVENUES RESULTING FROM THE IMPOSITION OF TAXES AUTHORIZED
BY THIS ACT SHALL BE PAID INTO THE TREASURY OF ANY SUCH CITY AND SHALL
NOT BE CREDITED OR DEPOSITED IN THE GENERAL FUND OF ANY SUCH CITY, BUT
SHALL BE DEPOSITED IN A SEPARATE BANK ACCOUNT OR ACCOUNTS AND SHALL BE
AVAILABLE AND USED SOLELY AND EXCLUSIVELY FOR PAYING THE PRINCIPAL
AMOUNT OF ANY INSTALLMENT OF PRINCIPAL AND OF INTEREST DUE DURING THE
AFORESAID PERIOD ON ACCOUNT OF THE TEN-YEAR SERIAL BONDS SOLD TO OBTAIN
MONEYS TO PAY FOR HOME RELIEF AND WORK RELIEF IN ANY SUCH CITY IN THE
MONTH OF NOVEMBER, NINETEEN HUNDRED THIRTY-THREE, AND FOR THE RELIEF
PURPOSES FOR WHICH THE SAID TAXES HAVE BEEN IMPOSED UNDER THE
PROVISIONS OF THIS ACT." 

LOCAL LAW NO. 21 OF 1934, AS AMENDED BY LOCAL LAW NO. 2 OF 1935: 

"A LOCAL LAW TO RELIEVE THE PEOPLE OF THE CITY OF NEW YORK FROM THE
HARDSHIPS AND SUFFERING CAUSED BY UNEMPLOYMENT AND THE EFFECTS THEREOF
ON THE PUBLIC HEALTH AND WELFARE, BY IMPOSING AN EXCISE TAX ON THE
GROSS INCOME OF EVERY PERSON DOING BUSINESS WITHIN SUCH CITY AND
SUBJECT TO SUPERVISION OF EITHER DIVISION OF THE DEPARTMENT OF PUBLIC
SERVICE, AND OF ANY AND ALL OTHER UTILITIES DOING BUSINESS WITHIN SUCH
CITY TO ENABLE SUCH CITY TO DEFRAY THE COST OF GRANTING UNEMPLOYMENT,
WORK AND HOME RELIEF. 

"SEC. 14.  DISPOSITION OF REVENUES.  - ALL REVENUES AND MONEYS
RESULTING FROM THE IMPOSITION OF THE TAXES IMPOSED BY THIS LOCAL LAW
SHALL BE PAID INTO THE TREASURY OF THE CITY OF NEW YORK AND SHALL NOT
BE CREDITED OR DEPOSITED IN THE GENERAL FUND OF THE CITY OF NEW YORK
BUT SHALL BE DEPOSITED IN A SEPARATE BANK ACCOUNT OR ACCOUNTS, AND
SHALL BE AVAILABLE AND USED SOLELY AND EXCLUSIVELY FOR THE PURPOSE OF
RELIEVING THE PEOPLE OF THE CITY OF NEW YORK FROM THE HARDSHIPS AND
SUFFERING CAUSED BY UNEMPLOYMENT, INCLUDING THE REPAYMENT OF MONEYS
BORROWED FOR SUCH PURPOSE." 

FN8  IN NO. 436, THE LEGISLATION IS NOT CHALLENGED AS AN IMPAIRMENT
OF AN OBLIGATION OF CONTRACT.  THE BROOKLYN AND QUEENS TRANSIT
CORPORATION "DOES NOT OPERATE UNDER CONTRACT 4, BUT UNDER STREET
RAILROAD FRANCHISE FROM THE CITY." 

FN9  THE CLAUSE READS AS FOLLOWS:  "TAXES, IF ANY, UPON PROPERTY
ACTUALLY AND NECESSARILY USED BY THE LESSEE IN THE OPERATION OF THE
RAILROAD AND THE EXISTING RAILROADS, TOGETHER WITH ALL TAXES OR OTHER
GOVERNMENTAL CHARGES OF EVERY DESCRIPTION (WHETHER ON PHYSICAL
PROPERTY, STOCK OR SECURITIES, CORPORATE OR OTHER FRANCHISES, OR
OTHERWISE) ASSESSED OR WHICH MAY HEREAFTER BE ASSESSED AGAINST THE
LESSEE IN CONNECTION WITH OR INCIDENT TO THE OPERATION OF THE RAILROAD
AND THE EXISTING RAILROADS.  ALSO SUCH ASSESSMENTS FOR BENEFITS AS ARE
NOT PROPERLY CHARGEABLE TO COST OF CONSTRUCTION OR COST OF EQUIPMENT." 
FN10  SEE SUPRA NOTE 2. 

MR. JUSTICE STONE AND MR. JUSTICE CARDOZO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :
















UNITED STATES V. WURTS, 303 U.S. 414 


NO. 499.  ARGUED FEBRUARY 28, 1938.  - DECIDED MARCH 14, 1938.  - 91
F.2D 547, REVERSED. 


UNDER SEC. 610 OF THE REVENUE ACT OF 1928, BARRING SUITS IN THE NAME
OF THE UNITED STATES TO RECOVER AMOUNTS ERRONEOUSLY REFUNDED, UNLESS
BROUGHT WITHIN TWO YEARS "AFTER THE MAKING OF SUCH REFUND," THE PERIOD
OF LIMITATION BEGINS TO RUN, NOT FROM THE TIME OF THE ALLOWANCE OF THE
REFUND (THE DATE WHEN THE COMMISSIONER APPROVES THE SCHEDULE OF
OVERASSESSMENTS), BUT FROM THE TIME OF ITS PAYMENT.  P. 416. 

UNITED STATES V. WURTS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 302 U.S. 678, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE TAXPAYER IN A SUIT BY THE UNITED STATES TO RECOVER AN ERRONEOUS
REFUND OF TAXES. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

UNDER THE REVENUE ACT OF 1928,  FN1  FORBIDDING SUIT BY THE UNITED
STATES TO RECOVER AN ERRONEOUS TAX REFUND UNLESS BROUGHT "WITHIN TWO
YEARS AFTER THE MAKING OF SUCH REFUND," DOES THE TWO YEAR LIMITATION
BEGIN WHEN THE REFUND IS ALLOWED OR WHEN IT IS PAID? 

THE COURT OF APPEALS AFFIRMED  FN2  THE DISTRICT COURT'S JUDGMENT
HOLDING THE GOVERNMENT BARRED BY THIS LIMITATION BECAUSE THE PRESENT
SUIT WAS NOT BROUGHT WITHIN TWO YEARS AFTER THE COMMISSIONER ALLOWED
THE REFUND BY SIGNING THE SCHEDULE OF OVER-ASSESSMENTS. 

THE FACTS SHOW THAT: 

MARCH 15, 1932, THE COMMISSIONER ERRONEOUSLY APPROVED A REFUND OF
TAXES PAID BY RESPONDENT FOR THE YEAR 1929.  APRIL 30, 1932, A CHECK
WAS MAILED TO THE TAXPAYER FOR THIS ERRONEOUS REFUND.  APRIL 26, 1934,
MORE THAN TWO YEARS AFTER THE ALLOWANCE OF THE REFUND, BUT LESS THAN
TWO YEARS AFTER ACTUAL PAYMENT, THE GOVERNMENT BROUGHT THIS SUIT TO
RECOVER THE ERRONEOUS REFUND. 

THE GOVERNMENT BY APPROPRIATE ACTION CAN RECOVER FUNDS WHICH ITS
AGENTS HAVE WRONGFULLY, ERRONEOUSLY, OR ILLEGALLY PAID.  FN3  "NO
STATUTE IS NECESSARY TO AUTHORIZE THE UNITED STATES TO SUE IN SUCH A
CASE.  THE RIGHT TO SUE IS INDEPENDENT OF STATUTE,  ..."  UNITED STATES
V. BANK OF THE METROPOLIS, 15 PET. 377, 401.  SECTION 610 OF THE 1928
ACT, RELIED UPON AS BARRING RECOVERY OF THIS ERRONEOUS AND UNWARRANTED
TAX REFUND, DOES NOT GRANT THE GOVERNMENT A NEW RIGHT, BUT IS A
LIMITATION OF THE GOVERNMENT'S LONG-ESTABLISHED RIGHT TO SUE FOR MONEY
WRONGFULLY OR ERRONEOUSLY PAID FROM THE PUBLIC TREASURY.  ORDINARILY,
RECOVERY OF GOVERNMENT FUNDS, PAID BY MISTAKE TO ONE HAVING NO JUST
RIGHT TO KEEP THE FUNDS, IS NOT BARRED BY THE PASSAGE OF TIME.  FN4
THERE IS NO CONTENTION HERE THAT RESPONDENT HAS ANY RIGHT TO RETAIN
THIS REFUND ERRONEOUSLY PAID BY THE GOVERNMENT.  HIS DEFENSE IS THAT
THE STATUTORY BAR PREVENTS RECOVERY.  THE GOVERNMENT'S RIGHT TO RECOVER
FUNDS, FROM A PERSON WHO RECEIVED THEM BY MISTAKE AND WITHOUT RIGHT, IS
NOT BARRED UNLESS CONGRESS HAS "CLEARLY MANIFESTED ITS INTENTION"  FN5
TO RAISE A STATUTORY BARRIER. 

THAT THE GOVERNMENT BRING SUIT "BEFORE THE EXPIRATION OF TWO YEARS
AFTER THE MAKING OF SUCH (ERRONEOUS) REFUND...."  RESPONDENT CONTENDS
THAT THE REVENUE ACT OF 1932  FN6  INDICATED CONGRESSIONAL INTENT TO
DESIGNATE THE DATE OF ALLOWANCE OF A REFUND (THE DATE THE COMMISSIONER
SIGNS THE SCHEDULE OF OVER-ASSESSMENTS) AS THE DATE OF REFUND FOR
COMPUTING THE PERIOD OF LIMITATIONS UNDER SEC. 610.  THE 1932 ACT
PROVIDES: 

"WHERE THE COMMISSIONER HAS (BEFORE OR AFTER JUNE 6, 1932) SIGNED A
SCHEDULE OF OVERASSESSMENTS IN RESPECT OF ANY INTERNAL REVENUE TAX
IMPOSED BY (THE REVENUE ACT OF 1932) OR ANY PRIOR REVENUE ACT, THE DATE
ON WHICH HE FIRST SIGNS SUCH SCHEDULE (IF AFTER MAY 28, 1928) SHALL BE
CONSIDERED AS THE DATE OF ALLOWANCE OF REFUND OR CREDIT IN RESPECT OF
SUCH TAX."  THIS ACT IN NO MANNER RELATES TO LIMITATIONS ON SUITS FOR
ERRONEOUS REFUNDS.  IT HAS NO PURPOSE IN COMMON WITH SEC. 610 OF THE
1928 ACT.  THE 1932 ACT THROWS NO LIGHT ON THE MEANING OF SEC. 610. 

IMPORT.  "CONGRESS MAY WELL BE SUPPOSED TO HAVE USED LANGUAGE IN
ACCORDANCE WITH THE COMMON UNDERSTANDING."  FN7 WEBSTER'S NEW
INTERNATIONAL DICTIONARY (2D ED., UNABRIDGED) DEFINES "REFUND" AS "THAT
WHICH IS REFUNDED" AND DEFINES THE TRANSITIVE VERB AS:  "TO RETURN
(MONEY) IN RESTITUTION, REPAYMENT  ..."  ONLY BY IGNORING THE COMMON
UNDERSTANDING OF WORDS COULD "MAKING  ...  (A) REFUND" BE CONSIDERED
SYNONYMOUS WITH "ALLOWING A REFUND." 

THAT CONGRESS HAD IN MIND THE SEPARATE AND DISTINCT MEANINGS OF THESE
TWO EXPRESSIONS IS CLEARLY DEMONSTRATED IN HOUSE REPORT NO. 2, 70TH
CONGRESS, 1ST SESSION, P. 34, 35, CONTAINING THE COMMITTEE REPORT ON
THE REVENUE ACT OF 1928: 

"THE SECTION (610) PROVIDES THAT ANY ERRONEOUS REFUND,  ...  MAY BE
RECOVERED BY SUIT BROUGHT IN THE NAME OF THE UNITED STATES IF SUCH SUIT
IS BEGUN WITHIN TWO YEARS AFTER THE MAKING OF THE REFUND." 

IMMEDIATELY FOLLOWING, IN REFERRING TO SEC. 614, THE REPORT STATED: 

"THE PRINCIPAL CHANGE MADE IN EXISTING LAW IS THAT IN THE CASE OF A
REFUND THE INTEREST PERIOD NOW TERMINATES WITH THE ALLOWANCE OF THE
REFUND, A DATE WHICH OFTEN PRECEDES THE ACTUAL MAKING OF THE REFUND
..." 

THE COMMISSIONER'S SIGNATURE ON A SCHEDULE OF OVERASSESSMENTS DOES
NOT FINALLY ESTABLISH A CLAIMANT'S RIGHT TO A REFUND AND DOES NOT
PRECLUDE FURTHER INVESTIGATION AND CONSIDERATION OF THE CLAIM.  THE
COMMISSIONER COULD LATER TAKE HIS SIGNATURE FROM THE SCHEDULE AND AS
POINTED OUT BY THIS COURT MIGHT - EVEN AFTER A CHECK WAS SIGNED AND
MAILED - CANCEL THE PAYMENT AND REVOKE THE AUTHORITY OF PAYMENT
ERRONEOUSLY MADE.  FN8 

IT WOULD REQUIRE LANGUAGE SO CLEAR AS TO LEAVE ROOM FOR NO OTHER
REASONABLE CONSTRUCTION IN ORDER TO INDUCE THE BELIEF THAT CONGRESS
INTENDED A STATUTE OF LIMITATIONS TO BEGIN TO RUN BEFORE THE RIGHT
BARRED BY IT HAS ACCRUED.  OBVIOUSLY, THE GOVERNMENT HAD NO RIGHT TO
SUE THIS TAXPAYER TO RECOVER MONEY BEFORE MONEY HAD BEEN PAID TO HIM. 
THE CONSTRUCTION URGED BY RESPONDENT WOULD ALLOW THE STATUTE OF
LIMITATIONS TO BEGIN TO RUN AGAINST RECOVERY ON AN ERRONEOUS PAYMENT
BEFORE ANY SUCH PAYMENT IS MADE.  AS SAID BY A HOUSE COMMITTEE IN
REPORTING ON A STATUTE OF LIMITATIONS CONTAINED IN A REVENUE ACT,  FN9
"LOGICALLY THE PERIOD OF LIMITATION SHOULD RUN FROM THE DATE OF
PAYMENT, SINCE IT IS AT THAT TIME THAT THE RIGHT ACCRUES." 

WE ARE OF OPINION THAT CONGRESS DID NOT INTEND THE LIMITATIONS OF
SEC. 610 TO RUN AGAINST THE GOVERNMENT UNTIL THE GOVERNMENT'S RIGHT
"HAS ACCRUED IN A SHAPE TO BE EFFECTUALLY ENFORCED."  FN10 

THIS STATUTE DOES NOT BEGIN TO RUN AGAINST THE GOVERNMENT WHEN A
CLAIM IS ERRONEOUSLY ALLOWED.  IT BEGINS TO RUN FROM THE DATE OF
PAYMENT.  THE JUDGMENT BELOW IS NOT IN ACCORD WITH THIS CONSTRUCTION OF
THE STATUTE AND IS REVERSED. 

FN1  REVENUE ACT OF 1928, C. 852, 45 STAT. 791, SEC. 610. 

FN2  91 F.(2D) 547. 

FN3  WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190, 212;
SEE UNITED STATES V. BURCHARD, 125 U.S. 176, 180, 181. 

FN4  GRAND TRUNK WESTERN RY. CO. V. UNITED STATES, 252 U.S. 112, 121. 

FN5  COMPARE, UNITED STATES V. NASHVILLE, C. & ST. L. RY. CO., 118
U.S. 120, 125. 

FN6  REVENUE ACT OF 1932, C. 209, 47 STAT. 169, SEC. 1104. 

FN7  UNION PACIFIC R. CO. V. HALL, 91 U.S. 343, 347. 

FN8  DAUBE V. UNITED STATES, 289 U.S. 367, 372. 

FN9  HOUSE REPORT NO. 179, 68TH CONGRESS, 1ST SESSION, P. 27. 

FN10  CF., BORER V. CHAPMAN, 119 U.S. 587, 602.  MR. JUSTICE CARDOZO
AND MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







HELVERING V. BANKLINE OIL CO., 303 U.S. 362 


NO. 387.  ARGUED FEBRUARY 9, 1938.  - DECIDED MARCH 7, 1938.  - 90 F.2D
899, REVERSED IN PART - AFFIRMED IN PART. 


1.  THE DEDUCTION FOR DEPLETION IN THE TAXATION OF PROFITS FROM OIL
AND GAS WELLS IS ALLOWED AS AN ACT OF GRACE, IN RECOGNITION OF THE FACT
THAT MINERAL DEPOSITS ARE WASTING ASSETS, AND IS INTENDED AS
COMPENSATION TO THE OWNER FOR THE PART USED UP IN PRODUCTION.  P. 366. 

2.  MAKING THE DEDUCTION ARBITRARY - A PER CENT. OF GROSS INCOME FROM
THE PROPERTY - WAS FOR CONVENIENCE AND DID NOT ALTER THE FUNDAMENTAL
THEORY OF THE DEPLETION ALLOWANCE.  P. 367. 

3.  THE ALLOWANCE OF A PER CENT. "OF THE GROSS INCOME FROM THE
PROPERTY," I.E. INCOME FROM OIL AND GAS, IS MADE TO THE RECIPIENTS OF
THE GROSS INCOME BY REASON OF THEIR CAPITAL INVESTMENT IN THE OIL AND
GAS IN PLACE.  ID. 

4.  A MERE PROCESSOR WHO DERIVES AN ECONOMIC ADVANTAGE THROUGH
CONTRACTS WITH PRODUCERS OF OIL OR GAS BUT WHO HAS NO CAPITAL
INVESTMENT IN THE MINERAL DEPOSIT, HAS NOT SUCH AN "ECONOMIC INTEREST"
IN THE OIL OR GAS IN PLACE THAT HE MAY HAVE AN ALLOWANCE FOR THEIR
DEPLETION.  ID. 

5.  THE REVENUE ACTS OF 1926 AND 1928 PROVIDE THAT IN COMPUTING NET
INCOME THERE SHALL, IN THE CASE OF OIL AND GAS WELLS, BE AN ALLOWANCE
FOR DEPLETION OF "27 1/2 PER CENTUM OF THE GROSS INCOME FROM THE
PROPERTY DURING THE TAXABLE YEAR."  THE TAXPAYER, A CORPORATION,
DERIVED INCOME FROM THE SALE OF GASOLINE WHICH IT EXTRACTED FROM "WET"
(NATURAL) GAS OBTAINED UNDER CONTRACTS WITH PRODUCERS.  THE CONTRACT IN
EACH CASE REQUIRED THE TAXPAYER TO LAY A PIPELINE FROM THE WELL TO ITS
PLANT, CONNECTING THE PIPE WITH THE CASING-HEAD OR GAS TRAP AT THE
MOUTH OF THE WELL; IT REQUIRED THE PRODUCER TO DELIVER INTO THE
PIPELINE, AT THE CASINGHEAD OR TRAP, THE GAS PRODUCED AT THE WELL; AND
REQUIRED THE TAXPAYER TO EXTRACT THE GASOLINE FROM THE GAS SO DELIVERED
AND TO PAY THE PRODUCER A SPECIFIED SHARE OF THE GROSS PROCEEDS OF ITS
SALE OR A SPECIFIED SHARE OF THE GASOLINE.  HELD, THAT THE TAXPAYER WAS
NOT ENTITLED TO AN ALLOWANCE FOR DEPLETION, SINCE IT HAD NO INTEREST IN
THE WELLS OR IN THE "WET" GAS IN PLACE, AND TOOK NO PART IN THE
PRODUCTION OF IT. PP. 364-367. 

THE TAXPAYER HAD THE RIGHT TO HAVE THE GAS DELIVERED, BUT DID NOT
PRODUCE IT AND COULD NOT COMPEL ITS PRODUCTION.  THE PIPELINES AND
EQUIPMENT, WHICH IT PROVIDED, FACILITATED THE DELIVERY OF THE GAS
PRODUCED, BUT THE AGREEMENT FOR THEIR INSTALLATION GRANTED NO INTEREST
IN THE GAS IN PLACE.  NOR WAS SUCH AN INTEREST CREATED BY THE PROVISION
FOR PAYMENT FOR THE GAS DELIVERED, WHETHER THE PAYMENT WAS MADE IN
MONEY OUT OF THE PROCEEDS OF THE GASOLINE EXTRACTED OR BY DELIVERY OF
THE AGREED PORTION OF THE GASOLINE.  WHETHER OR NOT THE "WET" GAS HAD A
MARKET VALUE AND, IF IT HAD, WHETHER THAT VALUE WAS GREATER THAN THE
AMOUNT PAID FOR IT, IS IN NO SENSE DETERMINATIVE.  THE TAXPAYER WAS
STILL A PROCESSOR, PAYING FOR WHAT IT RECEIVED AT THE WELL'S MOUTH. 

6.  WHERE A STATE LEASES ITS LAND TO A PRIVATE PARTY FOR EXTRACTION
OF OIL AND GAS, RESERVING A ROYALTY, A FEDERAL TAX ON THE LESSEE'S
PROFITS FROM THE OPERATIONS IS NOT INVALID AS AN UNCONSTITUTIONAL
BURDEN ON A STATE INSTRUMENTALITY.  BURNET V. JERGINS TRUST, 288 U.S.
508.  P. 369. 

SEE HELVERING V. MOUNTAIN PRODUCERS CORP., POST, P. 376. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. BANKLINE OIL CO.* 

*TOGETHER WITH NO. 388, BANKLINE OIL CO. V. COMMISSIONER OF INTERNAL
REVENUE, ALSO ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 675, ON TWO PETITIONS, DIRECTED TO DIFFERENT
RULINGS MADE IN THE COURT BELOW UPON REVIEW OF DECISIONS OF THE BOARD
OF TAX APPEALS, 33 B.T.A. 910. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

NO. 387.  - THIS CASE PRESENTS THE QUESTION WHETHER RESPONDENT, THE
BANKLINE OIL COMPANY, IS ENTITLED TO AN ALLOWANCE FOR DEPLETION WITH
RESPECT TO GAS PRODUCED FROM CERTAIN OIL AND GAS WELLS.  THE RULING OF
THE BOARD OF TAX APPEALS THAT THE TAXPAYER HAD NO DEPLETABLE INTEREST
(33 B.T.A. 910) WAS REVERSED BY THE CIRCUIT COURT OF APPEALS.  90
F.(2D) 899.  BECAUSE OF AN ASSERTED CONFLICT WITH THE PRINCIPLES
APPLICABLE UNDER THE DECISIONS OF THIS COURT, WE GRANTED CERTIORARI. 

RESPONDENT IN THE YEARS 1927 TO 1930 OPERATED A CASINGHEAD GASOLINE
PLANT IN THE SIGNAL HILL OIL FIELD, LOS ANGELES COUNTY, CALIFORNIA. 
RESPONDENT HAD ENTERED INTO CONTRACTS WITH OIL PRODUCERS FOR THE
TREATMENT OF WET GAS BY THE EXTRACTION OF GASOLINE.  THE BOARD OF TAX
APPEALS MADE THE FOLLOWING FINDINGS: 

NATURAL GAS, COMMONLY KNOWN AS "WET GAS" AS IT FLOWS FROM THE EARTH,
IS NOT A SALABLE COMMODITY.  IT IS ONLY THROUGH PROCESSING - BY
SEPARATION OF THE GASOLINE THEREFROM - RENDERING IT DRY, THAT IT MAY BE
SOLD FOR COMMERCIAL USES.  CONVERSELY, IT IS ONLY THROUGH THE
SEPARATION OF DRY GAS FROM WET GAS THAT THE GASOLINE IS SALABLE.  IT IS
THIS PROCESS THAT PRODUCES CASINGHEAD GASOLINE.  THE CONTENT OF
GASOLINE IN WET GAS VARIES FROM ONE-HALF GALLON TO SIX GALLONS A
THOUSAND CUBIC FEET OF GAS PRODUCED, DEPENDING UPON ITS RICHNESS. 
RESPONDENT'S CONTRACTS PROVIDED, GENERALLY, THAT IT SHOULD INSTALL AND
MAINTAIN THE NECESSARY PIPE LINES AND CONNECTIONS FROM CASINGHEADS OR
TRAPS AT THE MOUTH OF THE WELL TO ITS PLANT, THROUGH WHICH THE PRODUCER
AGREED TO DELIVER THE NATURAL GAS PRODUCED AT THE WELL, AND THAT
RESPONDENT SHOULD EXTRACT THE GASOLINE THEREFROM, RESPONDENT TO PAY THE
PRODUCER 33 1/3 PER CENT. OF THE TOTAL GROSS PROCEEDS DERIVED FROM THE
SALE OF GASOLINE EXTRACTED FROM WET GAS, OR, AT PRODUCER'S OPTION, TO
DELIVER TO THE PRODUCER 33 1/3 PER CENT. OF THE SALABLE GASOLINE SO
EXTRACTED.  A SLIGHTLY DIFFERENT TYPE OF CONTRACT PROVIDED FOR THE
OUTRIGHT "PURCHASE" FROM THE PRODUCER OF ALL NATURAL GAS PRODUCED AT A
GIVEN WELL, THE RESPONDENT PAYING 33 1/3 PER CENT. OF THE GROSS
PROCEEDS RECEIVED BY IT FROM THE SALE OF THE GASOLINE EXTRACTED FROM
SUCH GAS.  SOME OF THE DRY GAS REMAINING AFTER REMOVAL OF THE GASOLINE
WAS BLOWN TO THE AIR AND WASTED BECAUSE THERE WAS NO MARKET FOR IT,
WHILE SOME WAS SOLD TO PUBLIC UTILITIES, AND IN THAT CASE RESPONDENT
ACCOUNTED TO THE PRODUCER FOR A PROPORTION OF THE PROCEEDS PROVIDED FOR
UNDER THE CONTRACT, AND SOME WAS RETURNED TO THE WELLS TO BE USED FOR
PRESSURE PURPOSES. 

THE GOVERNMENT MAINTAINS THAT UNDER THE CONTRACTS RESPONDENT TOOK NO
PART IN THE PRODUCTION OF THE WET GAS, CONDUCTED NO DRILLING OPERATIONS
UPON ANY OF THE PRODUCING PREMISES, DID NOT PUMP OIL OR GAS FROM THE
WELLS, AND HAD NO INTEREST AS LESSOR OR LESSEE, OR AS SUB-LESSOR OR
SUBLESSEE, IN ANY OF THE PRODUCING WELLS. 

RESPONDENT STATES THAT IN ACCORDANCE WITH THE PROVISIONS OF THE
CONTRACTS IT ATTACHED PIPE LINES TO THE VARIOUS WELLS, CARRIED THE GAS
FROM THOSE WELLS TO ITS PLANT, WHERE THE GAS FROM THE WELLS OF THE
DIFFERENT PRODUCERS WAS COMMINGLED, AND REMOVED THE GASOLINE
THEREFROM.  THE GASOLINE WAS SOLD AND RESPONDENT ACCOUNTED TO EACH
PRODUCER "FOR ONE-THIRD OF THE PROCEEDS OF THE PRODUCER'S PRO RATA OF
THE GASOLINE MADE."  RESPONDENT CONTENDS THAT IT WAS ENTITLED TO DEDUCT
FOR DEPLETION 27 1/2 PER CENT. OF THE DIFFERENCE BETWEEN THE PRICE
WHICH IT PAID FOR THE WET GAS AND ITS FAIR MARKET VALUE AT THE MOUTHS
OF THE WELLS.  RESPONDENT TOOK THE "PREVAILING ROYALTY," WHICH IT
DEEMED TO BE ESTABLISHED BY THE EVIDENCE, AS THAT MARKET VALUE, AND
TREATED THE DIFFERENCE BETWEEN THE AMOUNT RESPONDENT PAID AND THE
GREATER PREVAILING ROYALTY AS RESPONDENT'S GROSS INCOME FOR THE PURPOSE
OF APPLYING THE STATUTE.  REVENUE ACTS OF 1926, SEC. 204(C)(2), SEC.
234(A)(8); 1928, SEC. 23(L)(M), SEC. 114(B)(3). 

THE CIRCUIT COURT OF APPEALS WAS OF THE OPINION THAT RESPONDENT HAD
ACQUIRED AN ECONOMIC INTEREST IN THE WET GAS IN PLACE AND WAS ENTITLED
TO AN ALLOWANCE FOR DEPLETION.  BUT AS NO FINDING HAD BEEN MADE OF THE
MARKET VALUE OF THE WET GAS, OR OF RESPONDENT'S NET INCOME FROM THE
PROPERTY, THE COURT REMANDED THE CASE TO THE BOARD OF TAX APPEALS TO
THE END THAT RESPONDENT MIGHT SUPPLEMENT ITS PROOF AND THAT AN
ALLOWANCE FOR DEPLETION SHOULD BE MADE IN ACCORDANCE WITH THE EVIDENCE
PRODUCED. 

IN ORDER TO DETERMINE WHETHER RESPONDENT IS ENTITLED TO DEPLETION
WITH RESPECT TO THE PRODUCTION IN QUESTION, WE MUST RECUR TO THE
FUNDAMENTAL PURPOSE OF THE STATUTORY ALLOWANCE.  THE DEDUCTION IS
PERMITTED AS AN ACT OF GRACE.  IT IS PERMITTED IN RECOGNITION OF THE
FACT THAT THE MINERAL DEPOSITS ARE WASTING ASSETS AND IS INTENDED AS
COMPENSATION TO THE OWNER FOR THE PART USED UP IN PRODUCTION.  UNITED
STATES V. LUDEY, 274 U.S. 295, 302.  THE GRANTING OF AN ARBITRARY
DEDUCTION, IN THE CASE OF OIL AND GAS WELLS, OF A PERCENTAGE OF GROSS
INCOME WAS IN THE INTEREST OF CONVENIENCE AND IN NO WAY ALTERED THE
FUNDAMENTAL THEORY OF THE ALLOWANCE.  UNITED STATES V. DAKOTA-MONTANA
OIL CO., 288 U.S. 459, 467.  THE PERCENTAGE IS "OF THE GROSS INCOME
FROM THE PROPERTY,"  - A PHRASE WHICH "POINTS ONLY TO THE GROSS INCOME
FROM OIL AND GAS."  HELVERING V. TWIN BELL SYNDICATE, 293 U.S. 312,
321.  THE ALLOWANCE IS TO THE RECIPIENTS OF THIS GROSS INCOME BY REASON
OF THEIR CAPITAL INVESTMENT IN THE OIL OR GAS IN PLACE.  PALMER V.
BENDER, 287 U.S. 551, 557. 

IT IS TRUE THAT THE RIGHT TO THE DEPLETION ALLOWANCE DOES NOT DEPEND
UPON ANY "PARTICULAR FORM OF LEGAL INTEREST IN THE MINERAL CONTENT OF
THE LAND."  WE HAVE SAID, WITH REFERENCE TO OIL WELLS, THAT IT IS
ENOUGH IF ONE "HAS AN ECONOMIC INTEREST IN THE OIL, IN PLACE, WHICH IS
DEPLETED BY PRODUCTION"; THAT "THE LANGUAGE OF THE STATUTE IS BROAD
ENOUGH TO PROVIDE, AT LEAST, FOR EVERY CASE IN WHICH THE TAXPAYER HAS
ACQUIRED, BY INVESTMENT, ANY INTEREST IN THE OIL IN PLACE, AND SECURES,
BY ANY FORM OF LEGAL RELATIONSHIP, INCOME DERIVED FROM THE EXTRACTION
OF THE OIL, TO WHICH HE MUST LOOK FOR A RETURN OF HIS CAPITAL."  PALMER
V. BENDER, SUPRA.  BUT THE PHRASE "ECONOMIC INTEREST" IS NOT TO BE
TAKEN AS EMBRACING A MERE ECONOMIC ADVANTAGE DERIVED FROM PRODUCTION,
THROUGH A CONTRACTUAL RELATION TO THE OWNER, BY ONE WHO HAS NO CAPITAL
INVESTMENT IN THE MINERAL DEPOSIT.  SEE THOMAS V. PERKINS, 301 U.S.
655, 661. 

IT IS PLAIN THAT, APART FROM ITS CONTRACTS WITH PRODUCERS, RESPONDENT
HAD NO INTEREST IN THE PRODUCING WELLS OR IN THE WET GAS IN PLACE. 
RESPONDENT IS A PROCESSOR.  IT WAS NOT ENGAGED IN PRODUCTION.  UNDER
ITS CONTRACTS WITH PRODUCERS, RESPONDENT WAS ENTITLED TO A DELIVERY OF
THE GAS PRODUCED AT THE WELLS, AND TO EXTRACT GASOLINE THEREFROM, AND
WAS BOUND TO PAY TO THE PRODUCERS THE STIPULATED AMOUNTS.  SOME OF THE
CONTRACTS, RECITING THAT THE PRODUCER WAS THE OWNER OF THE GAS
PRODUCED, PROVIDED FOR ITS TREATMENT BY RESPONDENT.  OTHER CONTRACTS
WERE COUCHED IN TERMS OF PURCHASE.  IN EITHER CASE THE GAS WAS TO BE
DELIVERED TO RESPONDENT AT THE CASINGHEADS OR GAS TRAPS INSTALLED BY
THE PRODUCER.  RESPONDENT HAD THE RIGHT TO HAVE THE GAS DELIVERED, BUT
DID NOT PRODUCE IT AND COULD NOT COMPEL ITS PRODUCTION.  THE PIPE LINES
AND EQUIPMENT, WHICH RESPONDENT PROVIDED, FACILITATED THE DELIVERY OF
THE GAS PRODUCED BUT THE AGREEMENT FOR THEIR INSTALLATION GRANTED NO
INTEREST IN THE GAS IN PLACE.  NOR WAS SUCH AN INTEREST CREATED BY THE
PROVISION FOR PAYMENT FOR THE GAS DELIVERED, WHETHER THE PAYMENT WAS
MADE IN MONEY OUT OF THE PROCEEDS OF THE GASOLINE EXTRACTED OR BY
DELIVERY OF THE AGREED PORTION OF THE GASOLINE.  WHETHER OR NOT THE WET
GAS HAD A MARKET VALUE AND, IF IT HAD, WHETHER THAT VALUE WAS GREATER
THAN THE AMOUNT RESPONDENT PAID, IS IN NO SENSE DETERMINATIVE. 
RESPONDENT WAS STILL A PROCESSOR, PAYING FOR WHAT IT RECEIVED AT THE
WELL'S MOUTH.  AS THE BOARD OF TAX APPEALS SAID:  "IT IS SAFE TO SAY,
WE BELIEVE, THAT THIS PETITIONER (RESPONDENT) HAD NO ENFORCEABLE RIGHTS
WHATSOEVER UNDER ITS CONTRACTS PRIOR TO THE TIME THE WET GAS WAS
ACTUALLY PLACED IN ITS PIPE LINE, I.E., AFTER IT HAD PASSED BEYOND THE
CASINGHEADS AND GAS TRAPS SUPPLIED BY THE PRODUCER INTO THE PIPE LINE,
EXCEPT THE RIGHT, PERHAPS, TO DEMAND THAT THE PRODUCER DELIVER WHATEVER
WAS PRODUCED THROUGH ITS PIPE LINES FOR TREATMENT DURING THE PERIOD OF
CONTRACTUAL RELATIONSHIP." 

UNDOUBTEDLY, RESPONDENT THROUGH ITS CONTRACTS OBTAINED AN ECONOMIC
ADVANTAGE FROM THE PRODUCTION OF THE GAS, BUT THAT IS NOT SUFFICIENT. 
THE CONTROLLING FACT IS THAT RESPONDENT HAD NO INTEREST IN THE GAS IN
PLACE.  RESPONDENT HAD NO CAPITAL INVESTMENT IN THE MINERAL DEPOSIT
WHICH SUFFERED DEPLETION AND IS NOT ENTITLED TO THE STATUTORY
ALLOWANCE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IN THIS RELATION IS
REVERSED AND THE DECISION OF THE BOARD OF TAX APPEALS IS AFFIRMED. 

NO. 388.  - IN 1929, THE STATE OF CALIFORNIA LEASED TO J. H. BARNESON
OIL AND GAS LANDS IN SANTA BARBARA COUNTY, RESERVING A ROYALTY.  WE
ASSUME, FOR THE PURPOSES OF THIS CASE, AS IT WAS ASSUMED BELOW, THAT
THE LEASE WAS OF TIDELANDS OWNED BY THE STATE.  BARNESON ACTED ON
BEHALF OF PETITIONER, THE BANKLINE OIL COMPANY, IN OBTAINING THE LEASE,
WHICH WAS DULY ASSIGNED TO PETITIONER AND APPROVED BY THE STATE. 
CLAIMING THAT THE INCOME RECEIVED FROM OPERATIONS UNDER THE LEASE WAS
EXEMPT FROM THE FEDERAL INCOME TAX, UPON THE GROUND THAT SUCH A TAX
WOULD CONSTITUTE AN UNCONSTITUTIONAL BURDEN UPON A STATE
INSTRUMENTALITY, PETITIONER SOUGHT TO RECOVER THE TAX PAID FOR THE YEAR
1930.  THE CIRCUIT COURT OF APPEALS, AFFIRMING THE DECISION OF THE
BOARD OF TAX APPEALS (33 B.T.A. 910), OVERRULED PETITIONER'S
CONTENTION.  90 F.(2D) 899.  IN VIEW OF THE IMPORTANCE OF THE QUESTION,
CERTIORARI WAS GRANTED. 

WE ARE OF OPINION THAT THE DECISION OF THE CIRCUIT COURT OF APPEALS
WAS RIGHT.  AS PETITIONER WAS ENGAGED IN ITS OWN BUSINESS IN PRODUCING
THE OIL, IT WAS BOUND TO PAY A FEDERAL INCOME TAX UPON ITS PROFITS EVEN
THOUGH ITS OPERATIONS WERE CONDUCTED ON STATE LANDS.  WE ARE UNABLE TO
FIND ANY SUBSTANTIAL DISTINCTION BETWEEN THE INSTANT CASE AND THAT OF
BURNET V. JERGINS TRUST, 288 U.S. 508, WHERE THE CITY OF LONG BEACH,
CALIFORNIA, MADE AN OIL AND GAS LEASE TO A PRIVATE PARTY COVERING PART
OF A TRACT OWNED BY THE CITY, THE PROCEEDS OF THE OIL AND GAS SALES
BEING DIVIDED BETWEEN THE CITY AND THE LESSEE.  THE CLAIM OF IMMUNITY
BY THE LESSEE AS AN INSTRUMENTALITY OF THE STATE, ACTING THROUGH THE
CITY, WAS HELD TO BE UNTENABLE. 

SO FAR AS THE CASE OF BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393,
WHICH WAS DISTINGUISHED IN BURNET V. JERGINS TRUST, SUPRA, MAY BE
REGARDED AS SUPPORTING A DIFFERENT VIEW, IT IS DISAPPROVED.  SEE
HELVERING V. MOUNTAIN PRODUCERS CORP., POST, P. 376. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS WITH RESPECT TO
PETITIONER'S INCOME FROM THE LEASE IS AFFIRMED.  JUDGMENT IN NO. 387
REVERSED; IN NO. 388 AFFIRMED. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER CONCUR IN THE RESULT. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE. 
..END :











HELVERING V. O'DONNELL, 303 U.S. 370 


NO. 406.  ARGUED FEBRUARY 9, 10, 1938.  - DECIDED MARCH 7, 1938.  - 90
F.2D 907, REVERSED. 


A SHAREHOLDER IN A CORPORATION OWNING OIL PROPERTIES HAS NO INTEREST
IN THE OIL AND GAS IN PLACE - NO CAPITAL INVESTMENT - WHICH WILL
ENTITLE HIM TO AN ALLOWANCE FOR DEPLETION UNDER REVENUE ACT OF 1926,
SECS. 204(C)(2), 214(A)(9); NOR, UPON SALE OF HIS SHARES TO ONE WHO
ACQUIRES THE WELLS FROM THE CORPORATION, DOES HE ACQUIRE SUCH
DEPLETABLE INTEREST THROUGH THE VENDEE'S COVENANT TO PAY HIM A PORTION
OF THE NET PROFITS FROM DEVELOPMENT AND OPERATION OF THE PROPERTIES. 
P. - . 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. O'DONNELL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 676, TO REVIEW THE AFFIRMANCE OF A DECISION OF
THE BOARD OF TAX APPEALS, 32 B.T.A. 1277, WHICH OVERRULED A DEFICIENCY
INCOME TAX ASSESSMENT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, THOMAS A. O'DONNELL, OWNED ONE-THIRD OF THE CAPITAL STOCK
OF THE SAN GABRIEL PETROLEUM COMPANY.  BY CONTRACT OF JANUARY 9, 1918,
HE SOLD THIS STOCK TO THE PETROLEUM MIDWAY COMPANY, LTD.  AS
CONSIDERATION, THE MIDWAY COMPANY AGREED TO PAY TO RESPONDENT ONE-THIRD
OF THE NET PROFITS FROM THE DEVELOPMENT AND OPERATION OF THE OIL AND
GAS PROPERTIES THEN OWNED BY THE SAN GABRIEL COMPANY AND WHICH THE
MIDWAY COMPANY AGREED TO ACQUIRE.  THAT ACQUISITION WAS MADE, THE
PROPERTIES THUS ACQUIRED WERE DEVELOPED AND OPERATED, AND ONE-THIRD OF
THE NET PROFITS THUS DERIVED WERE PAID TO RESPONDENT TO AUGUST 4,
1926.  WITH RESPECT TO SUCH PAYMENTS IN THE YEARS 1925 AND 1926,
RESPONDENT CLAIMED DEDUCTION FOR DEPLETION, WHICH THE BOARD OF TAX
APPEALS ALLOWED, OVERRULING THE COMMISSIONER OF INTERNAL REVENUE.  32
B.T.A. 1277.  THE CIRCUIT COURT OF APPEALS AFFIRMED THE DECISION OF THE
BOARD.  90 F.(2D) 907.  WE GRANTED CERTIORARI.  SEE HELVERING V.
BANKLINE OIL CO., ANTE, P. 362. 

THE QUESTION IS WHETHER RESPONDENT HAD AN INTEREST, THAT IS, A
CAPITAL INVESTMENT, IN THE OIL AND GAS IN PLACE.  REVENUE ACT OF 1926,
SEC. 204(C)(2); SEC. 214(A)(9).  PALMER V. BENDER, 287 U.S. 551, 557;
HELVERING V. TWIN BELL SYNDICATE, 293 U.S. 312, 321; THOMAS V. PERKINS,
301 U.S. 655, 661; HELVERING V. BANKLINE OIL CO., SUPRA.  AS A MERE
OWNER OF SHARES IN THE SAN GABRIEL COMPANY, RESPONDENT HAD NO SUCH
INTEREST.  TREASURY REGULATIONS NO. 69, ART. 201.  THE OWNERSHIP OF THE
OIL AND GAS PROPERTIES WAS IN THE CORPORATION.  WHEN THE MIDWAY COMPANY
ACQUIRED THESE PROPERTIES FROM THE SAN GABRIEL COMPANY AND OPERATED
THEM, THE MIDWAY COMPANY BECAME THE OWNER OF THE OIL AND GAS PRODUCED. 
IT WAS THE OWNER OF THE GROSS PROCEEDS OR INCOME UPON WHICH THE
STATUTORY ALLOWANCE FOR DEPLETION WAS TO BE COMPUTED.  HELVERING V.
TWIN BELL SYNDICATE, SUPRA. THE AGREEMENT TO PAY RESPONDENT ONE-THIRD
OF THE NET PROFITS DERIVED FROM THE DEVELOPMENT AND OPERATION OF THE
PROPERTIES WAS A PERSONAL COVENANT AND DID NOT PURPORT TO GRANT
RESPONDENT AN INTEREST IN THE PROPERTIES THEMSELVES.  IF THERE WERE NO
NET PROFITS, NOTHING WOULD BE PAYABLE TO HIM.  NO TRUST WAS DECLARED BY
WHICH RESPONDENT COULD CLAIM AN EQUITABLE INTEREST IN THE RES.  AS
CONSIDERATION FOR THE SALE OF HIS STOCK IN THE SAN GABRIEL COMPANY
RESPONDENT BARGAINED FOR AND OBTAINED AN ECONOMIC ADVANTAGE FROM THE
MIDWAY COMPANY'S OPERATIONS BUT THAT ADVANTAGE OR PROFIT DID NOT
CONSTITUTE A DEPLETABLE INTEREST IN THE OIL AND GAS IN PLACE.  PALMER
V. BENDER, SUPRA; HELVERING V. BANKLINE OIL CO., SUPRA. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE. 
..END :



HELVERING V. ELBE OIL LAND CO., 303 U.S. 372 


NO. 446.  ARGUED FEBRUARY 10, 1938.  - DECIDED MARCH 7, 1938.  - 91 F.2D
127, REVERSED. 


THE TAXPAYER SOLD ALL OF ITS INTEREST IN CERTAIN OIL AND GAS
PROPERTIES IN CONSIDERATION OF CASH DOWN AND DEFERRED PAYMENTS IN
SEVERAL STATED AMOUNTS, THE AGREEMENT FURTHER PROVIDING THAT, WHEN THE
VENDEE HAD BEEN REIMBURSED FOR EXPENDITURES IN ACQUISITION, DEVELOPMENT
AND OPERATION, THE TAXPAYER SHOULD RECEIVE ONE-THIRD OF THE NET PROFITS
OF PRODUCTION AND OPERATION OF THE PROPERTIES.  HELD: 

1.  THAT THERE WAS AN ABSOLUTE SALE DIVESTING THE TAXPAYER OF ALL
INTEREST OR INVESTMENT IN THE PROPERTIES, INCLUDING OIL AND GAS IN
PLACE.  P. 375. 

2.  THE PROVISION FOR PAYMENT FROM PROFITS WAS MERELY A PERSONAL
COVENANT OF THE VENDEE.  ID. 

3.  THE TAXPAYER IS NOT ENTITLED UNDER THE REVENUE ACT OF 1928, SEC.
114(B)(3) TO A DEDUCTION FOR DEPLETION COMPUTED ON THE CASH PAYMENTS. 
ID. 

NEITHER THE CASH PAYMENTS NOR THE AGREEMENT FOR A SHARE OF SUBSEQUENT
PROFITS CONSTITUTED AN ADVANCE ROYALTY, OR A "BONUS" IN THE NATURE OF
AN ADVANCE ROYALTY, WITHIN THE DECISIONS RECOGNIZING A RIGHT TO THE
DEPLETION ALLOWANCE WITH RESPECT TO PAYMENTS OF THAT SORT. 

4.  THE WORDS "GROSS INCOME FROM THE PROPERTY," AS USED IN THE
STATUTE GOVERNING THE ALLOWANCE FOR DEPLETION, MEAN GROSS INCOME
RECEIVED FROM THE OPERATION OF THE OIL AND GAS WELLS BY ONE WHO HAS A
CAPITAL INVESTMENT THEREIN,  - NOT INCOME FROM THE SALE OF THE OIL AND
GAS PROPERTIES THEMSELVES.  P. 375. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. ELBE OIL LAND
DEVELOPMENT CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 677, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 34 B.T.A. 333, SUSTAINING THE COMMISSIONER'S
DISALLOWANCE OF DEDUCTIONS FOR DEPLETION. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER CERTAIN PAYMENTS RECEIVED BY RESPONDENT IN
THE YEARS 1928 AND 1929 CONSTITUTED "GROSS INCOME FROM THE PROPERTY,"
WITHIN THE MEANING OF THAT PHRASE AS USED IN RELATION TO OIL AND GAS
WELLS IN SEC. 114(B)(3) OF THE REVENUE ACT OF 1928, SO AS TO ENTITLE
RESPONDENT TO THE PRESCRIBED DEPLETION ALLOWANCE.  THE CIRCUIT COURT OF
APPEALS, REVERSING THE DECISION OF THE BOARD OF TAX APPEALS (34 B.T.A.
333), SUSTAINED RESPONDENT'S CLAIM.  91 F.(2D) 127.  CERTIORARI WAS
GRANTED BECAUSE OF AN ASSERTED CONFLICT WITH THE DECISION OF THE
CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT IN COMMISSIONER V.
FLEMING, 82 F.(2D) 324. 

RESPONDENT IS A CALIFORNIA CORPORATION WHICH ACQUIRED CERTAIN
PROPERTIES CONSISTING OF OIL AND GAS PROSPECTING PERMITS, DRILLING
AGREEMENTS, LEASES AND EQUIPMENT.  DEVELOPMENT WORK RESULTED IN THE
DISCOVERY OF OIL.  ON OCTOBER 3, 1927, RESPONDENT CONVEYED ALL ITS
RIGHT, TITLE AND INTEREST IN THE DESCRIBED PROPERTIES TO THE HONOLULU
CONSOLIDATED OIL COMPANY.  THE LATTER AGREED TO PAY TO RESPONDENT
$350,000 UPON THE EXECUTION OF THE AGREEMENT AND, IF THE HONOLULU
COMPANY SHOULD NOT ELECT TO ABANDON THE PURCHASE (IN ACCORDANCE WITH
ONE OF THE STIPULATIONS), THE ADDITIONAL SUMS OF $400,000 IN EACH OF
THE YEARS 1928, 1929 AND 1930, AND THE FURTHER SUM OF $450,000 IN
1931.  AFTER THE TIME WHEN THE HONOLULU COMPANY HAD BEEN FULLY
REIMBURSED AS PROVIDED IN THE AGREEMENT FOR ALL ITS EXPENDITURES IN THE
ACQUISITION, DEVELOPMENT AND OPERATION OF THE PROPERTIES, RESPONDENT
WAS TO RECEIVE MONTHLY ONE-THIRD OF THE NET PROFITS RESULTING FROM THE
PRODUCTION AND OPERATION.  AFTER CAREFUL STIPULATIONS WITH RESPECT TO
SUCH REIMBURSEMENT AND THE COMPUTATION OF NET PROFITS, THE AGREEMENT
PROVIDED: 

"ANYTHING IN THIS AGREEMENT CONTAINED TO THE CONTRARY
NOTWITHSTANDING, IT IS THE INTENTION OF THE PARTIES TO THIS AGREEMENT
THAT THE FULL OWNERSHIP, POSSESSION AND CONTROL OF ALL THE PROPERTIES,
THE SUBJECT OF THIS AGREEMENT, AND OF ALL OF THE PERSONAL PROPERTY
ACQUIRED AND/OR USED ON AND IN CONNECTION WITH THE OPERATION AND
DEVELOPMENT OF THE PROPERTIES, THE SUBJECT OF THIS AGREEMENT, SHALL BE
VESTED IN HONOLULU, AND ELBE SHALL HAVE NO INTEREST IN OR TO SAID
PROPERTIES OR IN OR TO ANY PERSONAL PROPERTY USED ON OR IN CONNECTION
WITH THE OPERATION OR DEVELOPMENT OF THE SAID PROPERTIES OR IN OR TO
THE SALVAGE VALUE OF ANY THEREOF, EXCEPT AS PROVIDED BY PARAGRAPH 9"
(RELATING TO ABANDONMENT OF THE PURCHASE AND RECONVEYANCE). 

THE FIRST PAYMENT OF $350,000 WAS RECEIVED BY RESPONDENT IN 1927 AND
BEING GREATER THAN THE COST OF ALL THE PROPERTIES TRANSFERRED,
RESPONDENT REPORTED AS TAXABLE INCOME THE DIFFERENCE BETWEEN THAT COST
BASIS AND THE AMOUNT RECEIVED.  IN ITS INCOME TAX RETURNS FOR THE YEARS
1928 AND 1929, RESPONDENT REPORTED THE PAYMENTS OF $400,000 RECEIVED IN
EACH OF THE YEARS AND CLAIMED 27 1/2 PER CENT. THEREOF AS AN ALLOWANCE
FOR DEPLETION.  THIS IS THE CLAIM WHICH HAS BEEN SUSTAINED BELOW. 

WE AGREE WITH THE CONCLUSION OF THE BOARD OF TAX APPEALS THAT THE
CONTRACT BETWEEN THE RESPONDENT AND THE HONOLULU COMPANY PROVIDED FOR
AN ABSOLUTE SALE OF ALL THE PROPERTIES IN QUESTION, INCLUDING ALL THE
OIL AND GAS IN PLACE, AND THAT RESPONDENT DID NOT RETAIN ANY INTEREST
OR INVESTMENT THEREIN.  THE AGGREGATE SUM OF $2,000,000 WAS PAID AS AN
AGREED PURCHASE PRICE TO WHICH WAS TO BE ADDED THE ONE-THIRD OF THE NET
PROFITS PAYABLE ON THE CONDITIONS SPECIFIED.  WE ARE UNABLE TO CONCLUDE
THAT THE PROVISION FOR THIS ADDITIONAL PAYMENT QUALIFIED IN ANY WAY THE
EFFECT OF THE TRANSACTION AS AN ABSOLUTE SALE OR WAS OTHER THAN A
PERSONAL COVENANT OF THE HONOLULU COMPANY.  SEE HELVERING V. O'DONNELL,
ANTE, P. 370.  IN THIS VIEW, NEITHER THE CASH PAYMENTS NOR THE
AGREEMENT FOR A SHARE OF SUBSEQUENT PROFITS CONSTITUTED AN ADVANCE
ROYALTY, OR A "BONUS" IN THE NATURE OF AN ADVANCE ROYALTY, WITHIN THE
DECISIONS RECOGNIZING A RIGHT TO THE DEPLETION ALLOWANCE WITH RESPECT
TO PAYMENTS OF THAT SORT.  SUCH PAYMENTS ARE MADE TO THE RECIPIENT AS A
RETURN UPON HIS CAPITAL INVESTMENT IN THE OIL OR GAS IN PLACE.  SEE
BURNET V. HARMEL, 287 U.S. 103, 111, 112; MURPHY OIL CO. V. BURNET, 287
U.S. 299, 302.  PAYMENTS OF THE PURCHASE PRICE WHICH ARE RECEIVED UPON
A SALE OF OIL AND GAS PROPERTIES ARE IN A DIFFERENT CATEGORY.  THE
WORDS "GROSS INCOME FROM THE PROPERTY," AS USED IN THE STATUTE
GOVERNING THE ALLOWANCE FOR DEPLETION, MEAN GROSS INCOME RECEIVED FROM
THE OPERATION OF THE OIL AND GAS WELLS BY ONE WHO HAS A CAPITAL
INVESTMENT THEREIN,  - NOT INCOME FROM THE SALE OF THE OIL AND GAS
PROPERTIES THEMSELVES.  SEE DARBY-LYNDE CO. V. ALEXANDER, 51 F.(2D) 56,
59.  WE CONCLUDE THAT AS RESPONDENT DISPOSED OF THE PROPERTIES,
RETAINING NO INVESTMENT THEREIN, IT WAS NOT ENTITLED TO MAKE THE
DEDUCTION CLAIMED FOR DEPLETION.  PALMER V. BENDER, 287 U.S. 551, 557;
HELVERING V. TWIN BELL SYNDICATE, 293 U.S. 312, 321; THOMAS V. PERKINS,
301 U.S. 655, 661; HELVERING V. BANKLINE OIL CO., ANTE, P. 362;
HELVERING V. O'DONNELL, SUPRA. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE. 
..END :








HELVERING V. PRODUCERS CORP., 303 U.S. 376 


NO. 600.  ARGUED FEBRUARY 10, 1938.  - DECIDED MARCH 7, 1938.  - 92 F.2D
78, REVERSED. 


1.  THE ALLOWANCE FOR DEPLETION IN THE CASE OF OIL AND GAS WELLS IS
FIXED BY REV. ACT 1926, SEC. 204(2), ARBITRARILY AT A SPECIFIED PER
CENT. OF THE "GROSS INCOME FROM THE PROPERTY," FOR CONVENIENCE OF
ADMINISTRATION; THE ALLOWANCE IS AN ACT OF GRACE; THE RULE PRESCRIBED
CAN NOT BE VARIED TO SUIT PARTICULAR EQUITIES; THE TERM "GROSS INCOME
FROM THE PROPERTY," MEANS GROSS INCOME FROM THE OIL AND GAS, AND MUST
BE TAKEN IN ITS NATURAL SENSE,  - SUCH INCOME MAY BE MORE OR LESS THAN
MARKET VALUE ACCORDING TO THE BEARING OF PARTICULAR CONTRACTS.  P.
381. 

2.  THE REV. ACT OF 1926 PROVIDES THAT IN THE CASE OF OIL AND GAS
WELLS "THE ALLOWANCE FOR DEPLETION SHALL BE 27 1/2 PER CENTUM OF THE
GROSS INCOME FROM THE PROPERTY DURING THE TAXABLE YEAR."  THE TAXPAYER,
A CORPORATION OWNING OIL AND GAS PROPERTIES, MADE A CONTRACT WITH A
REFINING COMPANY PURSUANT TO WHICH, UNTIL A DAY SPECIFIED, ALL THE OIL
PRODUCED BY THE TAXPAYER WAS SOLD TO THE REFINER AT PRICES BASED ON THE
AVERAGE PRICE RECEIVED BY THE REFINER FOR GASOLINE AND KEROSENE, THE
REFINER TAKING DELIVERY FROM MEASURING TANKS NEAR THE WELLS.  AS PART
OF THE PRICE OF THE OIL PURCHASED, THE REFINER AGREED TO CONDUCT THE
PRODUCTION OPERATIONS.  HELD THAT THE TAXPAYER'S "GROSS INCOME FROM THE
PROPERTY" WAS THE SUM OF THE PAYMENTS RECEIVED FROM THE REFINER WITHOUT
ADDING THE COST OF PRODUCTION DEFRAYED BY THE REFINER UNDER THE
CONTRACT.  P. 378. 

3.  A SCHOOL SECTION, PART OF THE LAND GRANTED BY THE UNITED STATES
TO THE STATE OF WYOMING FOR EDUCATIONAL PURPOSES BY THE ENABLING ACT OF
JULY 10, 1890, 26 STAT. 222, 223, WAS LEASED BY THE STATE TO A PRIVATE
CORPORATION FOR PRODUCTION OF OIL AND GAS, THE STATE RESERVING A
ROYALTY.  THE ENABLING ACT PROVIDES THAT THE PROCEEDS OF THE LAND SHALL
CONSTITUTE A PERMANENT SCHOOL FUND, AND AUTHORIZES THE STATE TO LEASE
FOR NOT MORE THAN FIVE YEARS.  THE LESSEE EXECUTED A DECLARATION OF
TRUST, THAT IT HELD AN UNDIVIDED 50% OF THE LEASE AND ITS NET PROCEEDS
FOR THE BENEFIT OF THE TAXPAYER IN THIS CASE.  HELD: 

(1)  THAT, AS RESPECTS THE POWER OF THE FEDERAL GOVERNMENT TO TAX
INCOME FROM THE LEASE, NO DISTINCTION CAN BE MADE BETWEEN THE INCOME
RECEIVED BY THE LESSEE AND THE INCOME RECEIVED BY THE CESTUI QUE
TRUST.  PP. 382-383. 

(2)  A FEDERAL TAX ON SUCH INCOME IS NOT SUBJECT TO CONSTITUTIONAL
OBJECTION AS A TAX UPON AN INSTRUMENTALITY OF THE STATE AND AS
CONSTITUTING A DIRECT AND SUBSTANTIAL INTERFERENCE WITH THE EXECUTION
OF THE TRUST ASSUMED BY THE STATE UNDER THE ENABLING ACT.  PP. 383
387. 

BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393 AND GILLESPIE V.
OKLAHOMA, 257 U.S. 501, OVERRULED. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. MOUNTAIN PRODUCERS
CORPORATION. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 302 U.S. 681, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS, 34 B.T.A. 409, WHICH AFFIRMED, IN REDUCED AMOUNT,
A DEFICIENCY ASSESSMENT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, MOUNTAIN PRODUCERS CORPORATION, OWNED ALL THE CAPITAL
STOCK OF THE WYOMING ASSOCIATED OIL CORPORATION AND FILED A
CONSOLIDATED INCOME TAX RETURN FOR THE YEAR 1925.  TWO DISTINCT
QUESTIONS ARE INVOLVED WITH RESPECT TO THE TAXABLE INCOME OF THE ABOVE
MENTIONED AFFILIATE.  THESE ARE (1) AS TO THE AMOUNT OF THE GROSS
INCOME OF THE AFFILIATE FOR THE PURPOSE OF THE STATUTORY ALLOWANCE FOR
DEPLETION IN THE CASE OF OIL AND GAS WELLS (REVENUE ACT OF 1926, SEC.
204(C)(2), SEC. 234(A)(8)); AND (2) AS TO A CLAIM OF EXEMPTION FROM
TAXATION OF INCOME RECEIVED BY THE AFFILIATE UNDER A TRUST AGREEMENT
WITH THE OWNER OF AN OIL AND GAS LEASE FROM THE STATE OF WYOMING.  THE
BOARD OF TAX APPEALS DECIDED AGAINST RESPONDENT UPON BOTH POINTS (34
B.T.A. 409) AND ITS DECISION WAS REVERSED BY THE CIRCUIT COURT OF
APPEALS.  92 F.(2D) 78.  BECAUSE OF AN ASSERTED CONFLICT WITH A
DECISION OF THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT IN THE
CASE OF BANKLINE OIL CO. V. COMMISSIONER, 90 F.(2D) 899, (SEE HELVERING
V. BANKLINE OIL CO., ANTE, P. 362), WE GRANTED CERTIORARI. 

FIRST. - WYOMING ASSOCIATED, ORGANIZED IN 1919, HELD CERTAIN PLACER
MINING CLAIMS, LEASES AND OPERATING AGREEMENTS IN THE SALT CREEK OIL
FIELD IN NATRONA COUNTY, WYOMING.  PURSUANT TO THE OIL AND GAS LEASING
ACT OF CONGRESS OF FEBRUARY 25, 1920, THE COMPANY EXCHANGED ITS PLACER
CLAIMS FOR GOVERNMENT LEASES, AND LATER CERTAIN EXCHANGES WERE MADE
WITH THE MIDWEST OIL COMPANY AND THE WYOMING OIL FIELDS COMPANY.  IN
1923, WYOMING ASSOCIATED MADE A CONTRACT WITH THE MIDWEST REFINING
COMPANY BY WHICH THE FORMER AGREED TO SELL TO THE LATTER ALL THE OIL
PRODUCED BY IT IN THE SALT CREEK OIL FIELD AND THE REFINING COMPANY
AGREED TO PURCHASE SUCH OIL UNTIL JANUARY, 1934, UPON A SLIDING SCALE
OF PRICES BASED UPON THE AVERAGE PRICE RECEIVED BY THE REFINING COMPANY
FOR GASOLINE AND KEROSENE.  WYOMING ASSOCIATED AGREED TO GIVE THE
REFINING COMPANY FREE USE OF ALL STORAGE FACILITIES, PIPE LINES,
BUILDINGS AND EQUIPMENT, AND SO MUCH OF THE OIL AND GAS PRODUCED AS
MIGHT BE REASONABLY NECESSARY FOR PRODUCTION PURPOSES.  THE REFINING
COMPANY AGREED, AS PART OF THE PRICE OF THE OIL THUS PURCHASED, TO
DRILL, CASE AND MAINTAIN ALL WELLS, SUPPLY WATER, INSTALL AND OPERATE
PUMPS, AND CONDUCT ALL DEVELOPMENT AND PRODUCTION OPERATIONS.  THE
REFINING COMPANY AGREED TO TAKE DELIVERY OF THE PURCHASED OIL AT THE
OUTLET GATES OF THE MEASURING TANKS LOCATED AT OR NEAR THE WELLS. 

RESPONDENT CONTENDED THAT THE GROSS INCOME OF WYOMING ASSOCIATED FROM
ITS PROPERTIES DURING THE TAXABLE YEAR, FOR THE PURPOSE OF THE
STATUTORY ALLOWANCE FOR DEPLETION, CONSISTED OF THE TOTAL CASH PAYMENTS
RECEIVED BY WYOMING ASSOCIATED, PLUS THE COST OF PRODUCTION DEFRAYED BY
THE REFINING COMPANY UNDER ITS CONTRACT.  THE AMOUNT OF THAT COST WAS
SHOWN BY STIPULATION.  THE BOARD OF TAX APPEALS LIMITED THE GROSS
INCOME OF WYOMING ASSOCIATED TO THE CASH PAYMENTS RECEIVED.  THE
CIRCUIT COURT OF APPEALS WAS OF THE OPINION THAT THE COST OF PRODUCTION
INCURRED BY THE REFINING COMPANY SHOULD BE ADDED IN THE VIEW THAT, HAD
WYOMING ASSOCIATED PRODUCED THE OIL AT ITS OWN EXPENSE, ITS GROSS
INCOME WOULD HAVE BEEN THE AMOUNT WHICH IT RECEIVED FOR THE OIL SOLD
AND IT WOULD THUS HAVE OBTAINED IN CASH THE PROPORTIONATE AMOUNT WHICH
REPRESENTED THE COST OF THE PRODUCTION. 

LAYING EMPHASIS UPON THE PROVISION OF THE CONTRACT THAT THE REFINING
COMPANY SHOULD PERFORM ITS SERVICES AS A PART OF THE PURCHASE PRICE OF
THE OIL, RESPONDENT CONTENDS THAT IT IS IRRELEVANT THAT THE REFINING
COMPANY ACTED FOR ITS OWN BENEFIT; THAT THE PRODUCTION AND LIFTING
SERVICES WERE PERFORMED PRIOR TO DELIVERY OF THE OIL, AND THAT THE
REFINING COMPANY WAS ACTING AS THE AGENT FOR WYOMING ASSOCIATED DOWN TO
THE POINT OF DELIVERY AND NOT UNTIL THEN BECAME A VENDEE; THAT THUS
WYOMING ASSOCIATED DID NOT SELL OIL UNDER THE GROUND BUT OIL SEVERED
FROM THE GROUND AND TREATED FOR DELIVERY; THAT IT WAS NOT ESSENTIAL FOR
RESPONDENT TO SHOW THAT THE TOTAL PRICE UNDER THE CONTRACT MUST BE
EITHER ABOVE OR BELOW THE MARKET PRICE AT ANY SPECIFIED TIME, AND THAT
THE PRICE AS FIXED BY THE CONTRACT CONTROLLED THE DEALINGS AND THE
TAXES OF THE PARTIES.  RESPONDENT AGREES THAT AN INTEREST IN OIL OR GAS
OR SOME TYPE OF OWNERSHIP IS ESSENTIAL TO THE RIGHT OF DEDUCTION FOR
DEPLETION AND ASSUMES THAT NO ONE BUT WYOMING ASSOCIATED OWNED ANY
INTEREST IN THE OIL AND GAS IN PLACE. 

THE GOVERNMENT ARGUES THAT THE CASH PRICE RECEIVED FOR THE OIL IS THE
SELLER'S ENTIRE "GROSS INCOME FROM THE PROPERTY" WHERE, AS IN THIS
INSTANCE, THE OIL IS PURCHASED UNDER A CONTRACT BY WHICH A REFINER
AGREES TO DEFRAY THE EXPENSE OF THE DEVELOPMENT AND PRODUCTION
OPERATIONS AND TO PAY A CASH PRICE BASED ON THE PRICES IT OBTAINS FOR
THE PRODUCTS IT SELLS AT ITS REFINERY; THAT THE OIL PRODUCTION
OPERATIONS WERE CONDUCTED BY THE REFINING COMPANY FOR ITS OWN BENEFIT
IN ORDER TO OBTAIN THE OIL AT A PRICE IT DEEMED TO BE FAVORABLE; THAT
THE METHOD OF DETERMINING THE PURCHASE PRICE UNDER THE CONTRACT WAS NOT
RELATED TO THE FIELD MARKET PRICE OF OIL BUT WAS EXPRESSLY RELATED TO A
DIFFERENT BASIS, WHICH MIGHT BE GREATER, THAT IS, TO A BASIS CONSISTING
OF THE CURRENT PRICES OBTAINED BY THE REFINING COMPANY FOR ITS GASOLINE
AND KEROSENE; THAT IF THE DEVELOPMENT OPERATIONS HAD BEEN UNSUCCESSFUL
AND NO OIL HAD BEEN PRODUCED, THE SERVICES OF THE REFINING COMPANY
WOULD STILL HAVE BEEN PAID FOR BY THE OWNER'S PROMISE TO SELL AT A
FIXED PRICE WHATEVER OIL MIGHT BE PRODUCED, AND THAT THIS SHOULD BE
TAKEN TO BE THE MEANING OF THE PROVISION THAT THE REFINING COMPANY
SHOULD PERFORM ITS SERVICES AS PART OF THE PRICE FOR OIL PURCHASED;
THAT THE OWNER OF OIL IN PLACE, INSTEAD OF PREPARING IT FOR DELIVERY
AND SALE, MAY PREFER TO LESSEN HIS WORK, LOWER HIS PRICE AND THUS
DECREASE HIS GROSS INCOME FROM THE PROPERTY, AND IN SUCH CASE THE
SERVICES WHICH THE BUYER MAY PERFORM ARE NOT TO BE REGARDED AS PART OF
THAT INCOME. 

WE THINK THAT THE GOVERNMENT'S ARGUMENT IS SOUND.  THE EVIDENT
PURPOSE OF THE STATUTORY PROVISION CONTROLS.  IT IS A UNIQUE PROVISION
TO MEET A SPECIAL CASE.  ANALOGIES SOUGHT TO BE DRAWN FROM OTHER
APPLICATIONS OF THE REVENUE ACTS MAY BE DELUSIVE AND LEAD US FAR FROM
THE INTENT OF CONGRESS IN THIS INSTANCE.  CONGRESS HAS RECOGNIZED THAT
IN FAIRNESS THERE SHOULD BE COMPENSATION TO THE OWNER FOR THE
EXHAUSTION OF THE MINERAL DEPOSITS IN THE COURSE OF PRODUCTION.  UNITED
STATES V. LUDEY, 274 U.S. 295, 302.  BUT TO APPRAISE THE ACTUAL EXTENT
OF DEPLETION ON THE PARTICULAR FACTS IN RELATION TO EACH TAXPAYER WOULD
GIVE RISE TO PROBLEMS OF CONSIDERABLE PERPLEXITY AND WOULD CREATE
ADMINISTRATIVE DIFFICULTIES WHICH IT WAS INTENDED TO OVERCOME BY LAYING
DOWN A SIMPLE RULE WHICH COULD BE EASILY APPLIED.  TO THIS END, THE
TAXPAYER WAS PERMITTED TO DEDUCT A SPECIFIED PERCENTAGE OF HIS GROSS
INCOME FROM THE PROPERTY.  SEE UNITED STATES V. DAKOTA-MONTANA OIL CO.,
288 U.S. 459, 461.  CONGRESS WAS FREE TO GIVE SUCH AN ARBITRARY
ALLOWANCE AS THE DEDUCTION WAS AN ACT OF GRACE.  IN ANSWER TO THE
CONTENTION THAT THE PROVISION MAY PRODUCE "UNJUST AND UNEQUAL RESULTS,"
WE HAVE REMARKED THAT THIS IS LIKELY TO BE SO "WHEREVER A RULE OF THUMB
IS APPLIED WITHOUT A DETAILED EXAMINATION OF THE FACTS AFFECTING EACH
TAXPAYER."  HELVERING V. TWIN BELL SYNDICATE, 293 U.S. 312, 321. 

THE RULE BEING OF THIS SORT FOR OBVIOUS PURPOSES OF ADMINISTRATIVE
CONVENIENCE, WE MUST APPLY IT IN THE SIMPLE MANNER IT CONTEMPLATES. 
THE 27 1/2 PER CENT. ALLOWED IS A FIXED FACTOR, NOT TO BE INCREASED OR
LESSENED BY ASSERTED EQUITIES.  THE TERM "GROSS INCOME FROM THE
PROPERTY" MEANS GROSS INCOME FROM THE OIL AND GAS (HELVERING V. TWIN
BELL SYNDICATE, SUPRA) AND THE TERM SHOULD BE TAKEN IN ITS NATURAL
SENSE.  WITH THE MOTIVES WHICH LEAD THE TAXPAYER TO BE SATISFIED WITH
THE PROCEEDS HE RECEIVES WE ARE NOT CONCERNED.  IF, IN THIS INSTANCE,
THE DEVELOPMENT OPERATIONS HAD FAILED TO PRODUCE OIL, IT WOULD HARDLY
BE SAID THAT THE EXPENSE OF DRILLING, BORNE UNDER CONTRACT BY ANOTHER,
CONSTITUTED "GROSS INCOME" OF THE TAXPAYER WITHIN THE MEANING OF THE
STATUTE.  NOR, WHEN OIL OR GAS IS PRODUCED, DOES THE STATUTE BASE THE
PERCENTAGE ON MARKET VALUE.  THE GROSS INCOME FROM TIME TO TIME MAY BE
MORE OR LESS THAN MARKET VALUE ACCORDING TO THE BEARING OF PARTICULAR
CONTRACTS.  WE DO NOT THINK THAT WE ARE AT LIBERTY TO CONSTRUCT A
THEORETICAL GROSS INCOME BY RECOURSE TO THE EXPENSES OF PRODUCTION
OPERATIONS.  THE REFINING COMPANY FOR ITS OWN PURPOSES UNDERTOOK THE
EXPENSE OF THOSE OPERATIONS, AND WYOMING ASSOCIATED WAS CONTENT TO
RECEIVE AS ITS OWN RETURN THE CASH PAYMENTS FOR THE OIL PRODUCED,
LEAVING TO THE REFINING COMPANY THE RISKS OF PRODUCTION. 

WE ARE OF THE OPINION THAT THE CASH PAYMENTS MADE BY THE REFINING
COMPANY CONSTITUTED THE GROSS INCOME OF WYOMING ASSOCIATED AND WERE THE
BASIS FOR THE COMPUTATION OF THE DEPLETION ALLOWANCE. 

SECOND. - THE STATE OF WYOMING, IN 1919, MADE A LEASE FOR THE TERM OF
FIVE YEARS TO THE MIDWEST OIL COMPANY COVERING A SECTION OF "SCHOOL
LAND" (SECTION 36, TOWNSHIP 40 NORTH, RANGE 79 WEST) FOR THE PURPOSE OF
PRODUCING OIL AND GAS, RESERVING A ROYALTY TO THE STATE.  THE LEASE WAS
SUPERSEDED IN 1923 BY ANOTHER LEASE OF LIKE IMPORT, RUNNING FROM 1924,
THE ROYALTY TO THE STATE BEING FIXED AT 65 PER CENT. OF OIL AND GAS
PRODUCED.  IN 1923, THE MIDWEST OIL COMPANY EXECUTED A DECLARATION OF
TRUST, THAT IT HELD AN UNDIVIDED 50 PER CENT. INTEREST IN THE LEASE,
AND IN THE NET PROCEEDS TO BE REALIZED THEREFROM, AND ALL RENEWALS
THEREOF, FOR THE BENEFIT OF WYOMING ASSOCIATED.  IN 1925, THE STATE
RECEIVED THE AGREED ROYALTY OF THE OIL PRODUCED AND THE PROCEEDS OF THE
SALE OF THE REMAINING OIL WERE DIVIDED BETWEEN WYOMING ASSOCIATED AND
THE MIDWEST OIL COMPANY. 

THE QUESTION IS WHETHER WYOMING ASSOCIATED IS SUBJECT TO A FEDERAL
INCOME TAX WITH RESPECT TO THE AMOUNT IT THUS RECEIVED.  IMMUNITY IS
CLAIMED UPON THE GROUND THAT IN THIS RELATION WYOMING ASSOCIATED IS A
STATE INSTRUMENTALITY. 

BY THE ENABLING ACT, THE LAND IN QUESTION WAS GRANTED TO THE STATE OF
WYOMING FOR EDUCATIONAL PURPOSES, THE PROCEEDS TO CONSTITUTE A
PERMANENT SCHOOL FUND.  AUTHORITY WAS GIVEN TO LEASE SUCH LAND FOR NOT
MORE THAN FIVE YEARS.  ACT OF JULY 10, 1890, C. 664, SECS. 4, 5, 26
STAT. 222, 223.  APART FROM THE FACT THAT THE CLAIM IS MADE BY WYOMING
ASSOCIATED BY VIRTUE OF THE DECLARATION OF TRUST, AND NOT BY THE
LESSEE, THE CASE WOULD FALL DIRECTLY WITHIN THE DECISION IN BURNET V.
CORONADO OIL & GAS CO., 285 U.S. 393, RELATING TO A FEDERAL TAX UPON
NET INCOME DERIVED BY A LESSEE UNDER A LEASE OF "SCHOOL LANDS" BY THE
STATE OF OKLAHOMA.  IN BURNET V. JERGINS TRUST, 288 U.S. 508, WE
LIMITED THE APPLICATION OF THE CORONADO CASE, SAYING THAT THE DOCTRINE
INVOKED WAS TO BE APPLIED STRICTLY.  BUT A DISTINCTION SOLELY UPON THE
GROUND THAT THE INCOME IN THE INSTANT CASE WAS RECEIVED UNDER A
DECLARATION OF TRUST BY THE LESSEE, AND NOT BY THE LESSEE ITSELF, DOES
NOT APPEAR TO BE SUBSTANTIAL AND WE ARE OF THE OPINION THAT THE
CORONADO CASE AND THE DECISION UPON WHICH IT RESTED SHOULD BE
RECONSIDERED IN THE LIGHT OF OUR OTHER DECISIONS AS TO THE TAXING
POWER. 

THE CORONADO CASE WAS DECIDED AS A COROLLARY TO THE CASE OF GILLESPIE
V. OKLAHOMA, 257 U.S. 501.  THE COURT THERE DENIED TO OKLAHOMA THE
RIGHT TO ENFORCE ITS TAX UPON NET INCOME DERIVED BY A LESSEE FROM SALES
OF HIS SHARE OF OIL AND GAS RECEIVED UNDER LEASES OF RESTRICTED INDIAN
LANDS.  SEE CHOCTAW, O. & G.R. CO. V. HARRISON, 235 U.S. 292; INDIAN
TERRITORY ILLUMINATING OIL CO. V. OKLAHOMA, 240 U.S. 522.  AS OKLAHOMA
WAS THUS BARRED FROM ENFORCING ITS TAX UPON THE INCOME OF A FEDERAL
LESSEE OF INDIAN LANDS, THE COURT IN THE CORONADO CASE HELD THAT A
SIMILAR PRINCIPLE SHOULD BE APPLIED TO THE ENFORCEMENT OF A FEDERAL TAX
UPON THE INCOME OF THE STATE'S LESSEE OF SCHOOL LANDS.  IN SUCH A CASE,
AS THE STATE WAS EXECUTING A TRUST IMPOSED BY CONGRESS AS A CONDITION
OF THE STATE'S ENTERING THE UNION, THE CASES IN WHICH THE STATE HAD
ENGAGED IN BUSINESS ENTERPRISES, APART FROM WHAT SHOULD BE DEEMED TO BE
ITS ESSENTIAL GOVERNMENTAL FUNCTIONS, WERE THOUGHT TO BE INAPPLICABLE. 
285 U.S. P. 400. 

THE GROUND OF THE DECISION IN THE GILLESPIE CASE, AS STATED BY MR.
JUSTICE HOLMES IN SPEAKING FOR THE COURT, WAS THAT "A TAX UPON THE
LEASES" WAS "A TAX UPON THE POWER TO MAKE THEM, AND COULD BE USED TO
DESTROY THE POWER TO MAKE THEM" (240 U.S. P. 530) AND THAT A TAX "UPON
THE PROFITS OF THE LEASES" WAS "A DIRECT HAMPER UPON THE EFFORT OF THE
UNITED STATES TO MAKE THE BEST TERMS THAT IT CAN FOR ITS WARDS."  IN
THE LIGHT OF THE EXPANDING NEEDS OF STATE AND NATION, THE INQUIRY HAS
BEEN PRESSED WHETHER THIS CONCLUSION HAS ADEQUATE BASIS; WHETHER IN A
CASE WHERE THE TAX IS NOT LAID UPON THE LEASES AS SUCH, OR UPON THE
GOVERNMENT'S PROPERTY OR INTEREST, BUT IS IMPOSED UPON THE GAINS OF THE
LESSEE, LIKE THAT LAID UPON OTHERS ENGAGED IN SIMILAR BUSINESS
ENTERPRISES, THERE IS IN TRUTH SUCH A DIRECT AND SUBSTANTIAL
INTERFERENCE WITH THE PERFORMANCE OF THE GOVERNMENT'S OBLIGATION AS TO
REQUIRE IMMUNITY FOR THE LESSEE'S INCOME.  WE HAVE HELD THAT THE RULING
IN THE GILLESPIE CASE SHOULD BE LIMITED STRICTLY TO CASES CLOSELY
ANALOGOUS (BURNET V. CORONADO OIL & GAS CO., SUPRA), AND THE
DISTINCTIONS THUS MAINTAINED HAVE ATTENUATED ITS TEACHING AND RAISED
GRAVE DOUBT AS TO WHETHER IT SHOULD LONGER BE SUPPORTED.   IN NUMEROUS
DECISIONS WE HAVE HAD OCCASION TO DECLARE THE COMPETING PRINCIPLE,
BUTTRESSED BY THE MOST COGENT CONSIDERATIONS, THAT THE POWER TO TAX
SHOULD NOT BE CRIPPLED "BY EXTENDING THE CONSTITUTIONAL EXEMPTION FROM
TAXATION TO THOSE SUBJECTS WHICH FALL WITHIN THE GENERAL APPLICATION OF
NON-DISCRIMINATORY LAWS, AND WHERE NO DIRECT BURDEN IS LAID UPON THE
GOVERNMENTAL INSTRUMENTALITY AND THERE IS ONLY REMOTE, IF ANY,
INFLUENCE UPON THE EXERCISE OF THE FUNCTIONS OF GOVERNMENT."  WILLCUTS
V. BUNN, 282 U.S. 216, 225, AND ILLUSTRATIONS THERE CITED.  THUS WE
HAVE HELD THAT THE COMPENSATION PAID BY A STATE OR A MUNICIPALITY TO A
CONSULTING ENGINEER FOR WORK ON PUBLIC PROJECTS MAY BE SUBJECTED TO A
FEDERAL INCOME TAX (METCALF & EDDY V. MITCHELL, 269 U.S. 514, 524) AND
THAT THE INCOME OF INDEPENDENT CONTRACTORS ENGAGED IN CARRYING ON
GOVERNMENT ENTERPRISES MAY BE TAXED.  JAMES V. DRAVO CONTRACTING CO.,
302 U.S. 134.  WE HAVE ALWAYS RECOGNIZED THAT NO CONSTITUTIONAL
IMPLICATIONS PROHIBIT A NON-DISCRIMINATORY TAX UPON THE PROPERTY OF AN
AGENT OF GOVERNMENT MERELY BECAUSE IT IS THE PROPERTY OF SUCH AN AGENT
AND USED IN THE CONDUCT OF THE AGENT'S OPERATIONS AND NECESSARY FOR THE
AGENCY.  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 436; RAILROAD COMPANY V.
PENISTON, 18 WALL.  5, 33; ALWARD V. JOHNSON, 282 U.S. 509, 514.  THE
CONGRESS MAY TAX STATE BANKS UPON THE AVERAGE AMOUNT OF THEIR DEPOSITS,
ALTHOUGH DEPOSITS OF STATE FUNDS BY STATE OFFICERS ARE INCLUDED. 
MANHATTAN COMPANY V. BLAKE, 148 U.S. 412.  BOTH THE CONGRESS AND THE
STATES HAVE THE POWER TO TAX TRANSFERS OR SUCCESSIONS IN CASE OF DEATH,
AND THIS POWER EXTENDS TO THE TAXATION BY A STATE OF BEQUESTS TO THE
UNITED STATES AND TO THE TAXATION BY THE CONGRESS OF BEQUESTS TO STATES
OR THEIR MUNICIPALITIES.  UNITED STATES V. PERKINS, 163 U.S. 625;
SNYDER V. BETTMAN, 190 U.S. 249, 253, 254.  WHILE A TAX ON THE INTEREST
PAYABLE ON STATE AND MUNICIPAL BONDS HAS BEEN HELD TO BE INVALID AS A
TAX BEARING DIRECTLY UPON THE EXERCISE OF THE BORROWING POWER OF THE
GOVERNMENT (WESTON V. CHARLESTON, 2 PET. 449, 468, 469; POLLOCK V.
FARMERS' LOAN & TRUST CO., 157 U.S. 429, 586), THE SALE OF THE BONDS BY
THEIR OWNERS AFTER THEY HAVE BEEN ISSUED BY THE STATE OR MUNICIPALITY
IS REGARDED AS A TRANSACTION DISTINCT FROM THE CONTRACTS MADE BY THE
GOVERNMENT IN THE BONDS THEMSELVES, AND THE PROFITS OF SUCH SALES ARE
SUBJECT TO THE FEDERAL INCOME TAX.  WILLCUTS V. BUNN, SUPRA, P. 227. 
SEE, ALSO, BURNET V. JERGINS TRUST, SUPRA; HELVERING V. THERRELL, ANTE,
P. 218; AND HELVERING V. BANKLINE OIL CO., ANTE, P. 362. 

IN GROUP NO. 1 OIL CORPORATION V. BASS, 283 U.S. 279, PROFITS DERIVED
BY A LESSEE FROM THE SALE OF OIL AND GAS PRODUCED UNDER A LEASE FROM
THE STATE OF TEXAS WERE HELD NOT TO BE IMMUNE FROM FEDERAL TAXATION. 
THIS DECISION WAS DISTINGUISHED IN THE CORONADO CASE UPON THE NARROW
GROUND THAT UNDER THE LAW OF TEXAS THE LEASES EFFECTED A PRESENT SALE
TO THE LESSEE OF THE OIL AND GAS IN PLACE.  IN INDIAN TERRITORY OIL CO.
V. BOARD OF EQUALIZATION, 288 U.S. 325, THE COURT SUSTAINED A NON
DISCRIMINATORY AD VALOREM TAX IMPOSED BY THE STATE OF OKLAHOMA ON OIL
EXTRACTED FROM RESTRICTED INDIAN LANDS UNDER LEASES APPROVED BY THE
SECRETARY OF THE INTERIOR, WHERE THE OIL HAD BEEN REMOVED FROM THE
LANDS AND STORED IN THE OWNER'S TANKS AND THE INDIANS HAD NO FURTHER
INTEREST IN IT. 

THESE DECISIONS IN A VARIETY OF APPLICATIONS ENFORCE WHAT WE DEEM TO
BE THE CONTROLLING VIEW - THAT IMMUNITY FROM NON-DISCRIMINATORY
TAXATION SOUGHT BY A PRIVATE PERSON FOR HIS PROPERTY OR GAINS BECAUSE
HE IS ENGAGED IN OPERATIONS UNDER A GOVERNMENT CONTRACT OR LEASE CANNOT
BE SUPPORTED BY MERELY THEORETICAL CONCEPTIONS OF INTERFERENCE WITH THE
FUNCTIONS OF GOVERNMENT.  REGARD MUST BE HAD TO SUBSTANCE AND DIRECT
EFFECTS.  AND WHERE IT MERELY APPEARS THAT ONE OPERATING UNDER A
GOVERNMENT CONTRACT OR LEASE IS SUBJECTED TO A TAX WITH RESPECT TO HIS
PROFITS ON THE SAME BASIS AS OTHERS WHO ARE ENGAGED IN SIMILAR
BUSINESSES, THERE IS NO SUFFICIENT GROUND FOR HOLDING THAT THE EFFECT
UPON THE GOVERNMENT IS OTHER THAN INDIRECT AND REMOTE.  WE ARE
CONVINCED THAT THE RULINGS IN GILLESPIE V. OKLAHOMA, SUPRA, AND BURNET
V. CORONADO OIL & GAS CO., SUPRA, ARE OUT OF HARMONY WITH CORRECT
PRINCIPLE AND ACCORDINGLY THEY SHOULD BE, AND THEY NOW ARE, OVERRULED. 

IN THE INSTANT CASE, WE FIND NO GROUND FOR CONCLUDING THAT THE TAX
UPON THE PROFITS OF WYOMING ASSOCIATED DERIVED UNDER ITS LEASE FROM THE
STATE CONSTITUTED ANY DIRECT AND SUBSTANTIAL INTERFERENCE WITH THE
EXECUTION OF THE TRUST WHICH THE STATE HAS ASSUMED, AND THE DECISION OF
THE CIRCUIT COURT OF APPEALS TO THE CONTRARY MUST BE REVERSED. 
REVERSED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE. 

MR. JUSTICE BUTLER, DISSENTING. 

AT LEAST SINCE M'CULLOCH V. MARYLAND (1819), 4 WHEAT.  316, THE DUAL
FORM OF GOVERNMENT RESULTING FROM THE ADOPTION OF THE CONSTITUTION HAS
BEEN DEEMED NECESSARILY TO IMPLY THAT NO STATE MAY TAX THE OPERATIONS
OF THE FEDERAL GOVERNMENT IN THE EXERTION OF POWERS THAT THE PEOPLE
DELEGATED TO IT AND THAT, FOR THE SAME REASON, THE FEDERAL GOVERNMENT
MAY NOT TAX THE OPERATIONS OF ANY STATE IN THE EXERTION OF ANY OF ITS
ESSENTIAL FUNCTIONS OF GOVERNMENT.  AS TO THAT PRINCIPLE, THE URGENCY
OF GOVERNMENTAL DEMAND FOR MONEY DOES NOT JUSTIFY YIELDING HERE.  NO
ONE CAN FORESEE THE EXTENT TO WHICH THE DECISION JUST ANNOUNCED
SURRENDERS IT.  THE TRANSACTIONS OF A STATE FOR THE PURPOSE OF RAISING
MONEY TO PROVIDE FOR SCHOOLS ARE ADMITTEDLY WITHIN THE PRINCIPLE AS
HERETOFORE IT HAS BEEN UNDERSTOOD AND APPLIED.  NOW THIS COURT MAKES IT
LAWFUL FOR THE UNITED STATES TO LAY TRIBUTE UPON THEM. 

A FEW CITATIONS WILL BE SUFFICIENT TO SUGGEST THE CHARACTER OF THE
CHANGE SO WROUGHT. 

M'CULLOCH V. MARYLAND HELD THAT IMPLIEDLY THE FEDERAL CONSTITUTION
FORBADE IMPOSITION BY MARYLAND OF ANY TAX UPON THE OPERATIONS OF THE
BANK OF THE UNITED STATES WITHIN THAT STATE.  THERE CHIEF JUSTICE
MARSHALL, SPEAKING FOR A UNANIMOUS COURT, DEMONSTRATES (P. 426):
"1ST.  THAT A POWER TO CREATE IMPLIES A POWER TO PRESERVE.  2ND.  THAT
A POWER TO DESTROY, IF WIELDED BY A DIFFERENT HAND, IS HOSTILE TO, AND
INCOMPATIBLE WITH THESE POWERS TO CREATE AND TO PRESERVE.  3D.  THAT
WHERE THIS REPUGNANCY EXISTS, THAT AUTHORITY WHICH IS SUPREME MUST
CONTROL, NOT YIELD TO THAT OVER WHICH IT IS SUPREME." 

FARMERS & MECHANICS BANK V. MINNESOTA (1914), 232 U.S. 516, HELD THAT
A STATE CANNOT TAX BONDS ISSUED BY A TERRITORY OF THE UNITED STATES;
THAT A TAX UPON THE BONDS IS A TAX ON THE GOVERNMENT ISSUING THEM; THAT
SUCH A TAX, IF ALLOWED AT ALL, MAY BE CARRIED TO AN EXTENT THAT WILL
ENTIRELY ARREST GOVERNMENTAL OPERATIONS.  THE COURT RESTED THAT
DECISION UPON M'CULLOCH V. MARYLAND, SAYING (P. 521):  "THE PRINCIPLE
HAS NEVER SINCE BEEN DEPARTED FROM, AND HAS OFTEN BEEN REASSERTED AND
APPLIED."  FN1 

CHOCTAW, O. & G.R. CO. V. HARRISON (1914), 235 U.S. 292, HELD THAT,
WHERE BY AGREEMENT WITH AN INDIAN TRIBE THE UNITED STATES ASSUMED A
DUTY IN REGARD TO OPERATION OF COAL MINES, THE LESSEES OF THE MINES
WERE INSTRUMENTALITIES OF THE GOVERNMENT AND COULD NOT BE SUBJECTED TO
A STATE OCCUPATION OR PRIVILEGE TAX.  FN2 

INDIAN TERRITORY OIL CO. V. OKLAHOMA (1916), 240 U.S. 522, HELD THAT
OIL LEASES IN OKLAHOMA MADE BY THE OSAGE TRIBE WERE UNDER THE
PROTECTION OF THE FEDERAL GOVERNMENT; THAT THE CORPORATION OWNING THE
LEASES WAS A FEDERAL INSTRUMENTALITY AND THAT THEREFORE THE STATE COULD
NOT TAX ITS INTEREST IN THE LEASES, EITHER DIRECTLY OR BY TAXING THE
CAPITAL STOCK OF THE CORPORATION OWNING THEM.  FN3 

GILLESPIE V. OKLAHOMA (1922), 257 U.S. 501, HELD THAT NET INCOME
DERIVED FROM LEASES LIKE THOSE CONSIDERED IN CHOCTAW, O. & G.R. CO. V.
HARRISON, SUPRA, AND INDIAN TERRITORY OIL CO. V. OKLAHOMA, SUPRA, COULD
NOT BE TAXED BY THE STATE; FOR THE LESSEE WAS AN INSTRUMENTALITY USED
BY THE UNITED STATES IN FULFILLING ITS DUTIES TO THE INDIANS N4.  THE
COURT SAID (P. 506):  "THE SAME CONSIDERATIONS THAT INVALIDATE A TAX
UPON THE LEASES INVALIDATE A TAX UPON THE PROFITS OF THE LEASES, AND,
STOPPING SHORT OF THEORETICAL POSSIBILITIES, A TAX UPON SUCH PROFITS IS
A DIRECT HAMPER UPON THE EFFORT OF THE UNITED STATES TO MAKE THE BEST
TERMS THAT IT CAN FOR ITS WARDS." 

JAYBIRD MINING CO. V. WEIR (1926), 271 U.S. 609, HELD THAT WHERE
MINING LAND WAS LEASED BY INCOMPETENT INDIAN OWNERS WITH THE APPROVAL
OF THE SECRETARY OF THE INTERIOR, IN CONSIDERATION OF ROYALTY IN KIND,
A STATE AD VALOREM TAX ASSESSED TO LESSEE ON ORES IN BINS ON THE LAND,
BEFORE SALE OR SEGREGATION, WAS VOID AS AN ATTEMPT TO TAX AN AGENCY OF
THE FEDERAL GOVERNMENT.  FN5 

IN BURNET V. CORONADO OIL & GAS CO. (1932), 285 U.S. 393, IT APPEARED
THAT LANDS GRANTED BY THE UNITED STATES TO OKLAHOMA FOR THE SUPPORT OF
COMMON SCHOOLS WERE LEASED BY THE STATE TO A PRIVATE COMPANY FOR
EXTRACTION OF OIL AND GAS, THE STATE RESERVING A PART OF THE GROSS
PRODUCTION, THE PROCEEDS OF WHICH WERE PAID INTO THE SCHOOL FUND.  WE
HELD THAT THE LEASE WAS AN INSTRUMENTALITY OF THE STATE IN THE EXERCISE
OF A STRICTLY GOVERNMENTAL FUNCTION, AND THAT APPLICATION OF THE
FEDERAL INCOME TAX TO THE INCOME DERIVED FROM THE LEASE BY THE LESSEE
WAS THEREFORE UNCONSTITUTIONAL.  FN6 

TO REACH IN THIS CASE THE CONCLUSION THAT RESPONDENT'S AFFILIATE IS
SUBJECT TO FEDERAL INCOME TAX ON THE PROCEEDS OF ITS SHARE OF THE OIL
RECEIVED UNDER THE LEASE OF STATE SCHOOL LANDS, THIS COURT EXPRESSLY
OVERRULES GILLESPIE V. OKLAHOMA, SUPRA, AND BURNET V. CORONADO OIL &
GAS CO., SUPRA; AND WITH THEM NECESSARILY GOES A LONG LINE OF DECISIONS
OF THIS AND OTHER COURTS.  THE OPINION BRINGS FORWARD NO REAL REASON
FOR SO SWEEPING A CHANGE OF CONSTRUCTION OF THE CONSTITUTION.  IT IS TO
THE PLAIN DISADVANTAGE OF INDIAN WARDS OF THE NATIONAL GOVERNMENT AND
SCHOOL CHILDREN OF THE SEVERAL STATES; IT THREATENS MANY BUSINESS
ARRANGEMENTS THAT HAVE BEEN MADE FOR THEIR BENEFIT. 

I DISSENT. 

FN1  CITING OSBORN V. U.S. BANK, 9 WHEAT.  738, 859; HOME SAVINGS
BANK V. DES MOINES, 205 U.S. 503, 513; GRETHER V. WRIGHT, 75 FED. 742,
753. 

FN2  CITING M'CULLOCH V. MARYLAND, 4 WHEAT.  316; FARMERS & MECHANICS
BANK V. MINNESOTA, 232 U.S. 516. 

FN3  CITING CHOCTAW, O. & G.R. CO. V. HARRISON, 235 U.S. 292. 

FN4  CITING CHOCTAW, O. & G.R. CO. V. HARRISON, 235 U.S. 292; INDIAN
TERRITORY OIL CO. V. OKLAHOMA, 240 U.S. 522; HOWARD V. GIPSY OIL CO.,
247 U.S. 503; LARGE OIL CO. V. HOWARD, 248 U.S. 549. 

AS TO TAXABILITY OF GAINS FROM INTERSTATE COMMERCE, SEE U.S. GLUE CO.
V. OAK CREEK, 247 U.S. 321; SHAFFER V. CARTER, 252 U.S. 37, 57. 

IN BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393, 399, 400, IT IS
STATED THAT GILLESPIE V. OKLAHOMA HAS OFTEN BEEN REFERRED TO AS THE
EXPRESSION OF AN ACCEPTED PRINCIPLE, CITING METCALF & EDDY V. MITCHELL,
269 U.S. 514, 522; JAYBIRD MINING CO. V. WEIR, 271 U.S. 609, 613;
NORTHWESTERN MUTUAL INS. CO. V. WISCONSIN, 275 U.S. 136, 140; HEINER V.
COLONIAL TRUST CO., 275 U.S. 232, 234; SHAW V. GIBSON-ZAHNISER OIL
CORP., 276 U.S. 575, 579; PANHANDLE OIL CO. V. MISSISSIPPI EX REL.
KNOX, 277 U.S. 218, 221, 222; CARPENTER V. SHAW, 280 U.S. 363, 366;
WILLCUTS V. BUNN, 282 U.S. 216, 229; GROUP NO. 1 OIL CORP. V. BASS, 283
U.S. 279, 282, 283; INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S.
570, 576; CHOTEAU V. BURNET, 283 U.S. 691, 696. 

FN5  CITING FARMERS & MECHANICS BANK V. MINNESOTA, 232 U.S. 516;
CHOCTAW, O. & G.R. CO. V. HARRISON, 235 U.S. 292; INDIAN TERRITORY OIL
CO. V. OKLAHOMA, 240 U.S. 522; GILLESPIE V. OKLAHOMA, 257 U.S. 501;
HOWARD V. GIPSY OIL CO., 247 U.S. 503; LARGE OIL CO. V. HOWARD, 248
U.S. 549. 

FN6  FOLLOWING GILLESPIE V. OKLAHOMA, 257 U.S. 501.  CITING TEXAS V.
WHITE, 7 WALL.  700, 725; COLLECTOR V. DAY, 11 WALL.  113; POLLOCK V.
FARMERS LOAN & TRUST CO., 157 U.S. 429, 584; FARMERS & MECHANICS BANK
V. MINNESOTA, 232 U.S. 516, 527. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 
..END :








HELVERING V. MITCHELL, 303 U.S. 391 


NO. 324.  ARGUED JANUARY 14, 1938.  - DECIDED MARCH 7, 1938.  - 89 F.2D
873, REVERSED. 


ANY PART OF A DEFICIENCY IS DUE TO FRAUD WITH INTENT TO EVADE TAX, 50%
OF THE TOTAL AMOUNT OF THE DEFICIENCY (IN ADDITION TO SUCH DEFICIENCY)
SHALL BE ASSESSED, COLLECTED AND PAID.  SECTION 146(B) OF THE SAME
TITLE DECLARES THAT ANY PERSON WHO WILFULLY ATTEMPTS IN ANY MANNER TO
EVADE OR DEFEAT ANY TAX IMPOSED BY THE TITLE, SHALL, IN ADDITION TO
OTHER PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY AND UPON
CONVICTION BE SUBJECT TO FINE AND IMPRISONMENT. 

HELD:  THAT AN ACQUITTAL OF A CHARGE OF WILFUL ATTEMPT TO EVADE,
UNDER SEC. 146(B), DOES NOT BAR ASSESSMENT AND COLLECTION OF THE 50%
ADDITION PRESCRIBED BY SEC. 293(B).  P. 397 ET SEQ. 

THE DOCTRINE OF RES JUDICATA IS INAPPLICABLE BECAUSE OF THE
DIFFERENCE IN QUANTUM OF PROOF IN CIVIL AND CRIMINAL CASES; THE
ACQUITTAL WAS MERELY AN ADJUDICATION THAT THE PROOF WAS NOT SUFFICIENT
TO OVERCOME ALL REASONABLE DOUBT OF GUILT.  P. 397. 

THE DOCTRINE OF DOUBLE JEOPARDY IS INAPPLICABLE BECAUSE THE 50%
ADDITION TO TAX PROVIDED BY SEC. 293(B) IS NOT PRIMARILY PUNITIVE BUT
IS A REMEDIAL SANCTION IMPOSED AS A SAFEGUARD FOR PROTECTION OF THE
REVENUE AND TO REIMBURSE THE GOVERNMENT FOR EXPENSE AND LOSS RESULTING
FROM THE TAXPAYER'S FRAUD.  AS SUCH IT MAY BE ENFORCED BY A CIVIL
PROCEDURE TO WHICH THE ACCEPTED RULES AND CONSTITUTIONAL GUARANTIES
GOVERNING THE TRIAL OF CRIMINAL PROSECUTIONS DO NOT APPLY.  P. 398. 

COFFEE V. UNITED STATES, 116 U.S. 436, AND UNITED STATES V. LA
FRANCA, 282 U.S. 568, DISTINGUISHED. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. MITCHELL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 670, TO REVIEW A JUDGMENT REVERSING IN PART A
DECISION OF THE BOARD OF TAX APPEALS, 32 B.T.A. 1093, WHICH SUSTAINED A
DEFICIENCY INCOME TAX ASSESSMENT, WITH A 50% ADDITION FOR FRAUD. 

THE FIFTY PER CENTUM ADDITION TO THE TAX DEFICIENCY IS A PENALTY
INTENDED FOR PUNISHMENT. 

AS FRAUD PRESUPPOSES A PLAN CONCEIVED BEFORE ITS EXECUTION, IT MUST
OF NECESSITY BE WILFUL.  THERE CAN BE NO ACT OF FRAUDULENT EVASION
UNDER SEC. 293(B) THAT WOULD NOT ALSO BE A WILFUL EVASION UNDER SEC.
146(B).  THE PENALTY PRESCRIBED BY SEC. 293(B) IS IMPOSED ONLY BECAUSE
OF ACTS WHICH, WHEN COMMITTED, CONSTITUTE A CRIME. 

THE FACT THAT THE WORDS "TAX" OR "ADDITION TO THE DEFICIENCY" ARE
USED TO DESCRIBE THE IMPOSITION, OR THAT COLLECTION IS MADE THROUGH THE
BUREAU OF INTERNAL REVENUE OF THE TREASURY DEPARTMENT, IS OF NO
SIGNIFICANCE IF THE REAL PURPOSE OF THE IMPOSITION IS TO DEFINE AND
SUPPRESS A CRIME.  CHILD LABOR TAX CASE, 259 U.S. 20; HELWIG V. UNITED
STATES, 188 U.S. 605; DORSHEIMER V. UNITED STATES, 7 WALL.  166. 

EVEN THOUGH TERMED A TAX, THE ASSESSMENT IS UNDER SUSPICION OF NOT
BEING A TRUE TAX, WHEN LEVIED BECAUSE OF ILLEGAL ACTS.  UNITED STATES
V. LA FRANCA, 282 U.S. 568.  IF "EVIDENCE OF A CRIME IS ESSENTIAL TO
THE IMPOSITION OF A TAX, THE COURTS DO NOT HESITATE TO PRONOUNCE IT A
PENALTY, EVEN IF IT MAY INCIDENTALLY BRING IN REVENUE."  REGAL DRUG
CORP. V. WARDELL, 260 U.S. 386; LIPKE V. LEDERER, 269 U.S. 557.  NOR
DOES THE FACT THAT THE PENALTY MAY BE SUPERIMPOSED ON WHAT IS CLEARLY A
TAX LESSEN THE PENAL CHARACTER OF THE FORMER.  HELWIG V. UNITED STATES,
SUPRA, 614-616; 17 OPS.  ATTY.  GEN. 433; 23 OPS.  ATTY.  GEN. 398. 

A REVIEW OF THE DECISIONS OF THIS COURT COMPELS US TO THE CONCLUSION
THAT (1) IF A SO-CALLED TAX IS MEANT PRIMARILY TO SUPPRESS A CERTAIN
KIND OF CONDUCT, RATHER THAN TO SUPPLY REGULAR REVENUE FOR THE SUPPORT
OF THE GOVERNMENT, OR (2) IF THE ADDITION IS GREATLY OUT OF PROPORTION
TO THE ORDINARY TAX, OR (3) IF IT IS LEVIED UPON A PARTICULAR ACT
BECAUSE OF ITS FRAUD, THEN IT IS REGARDED AS A PENALTY AND PUNISHMENT
RATHER THAN A MERE TAX.  CASES SUPRA, AND PASSAVANT V. UNITED STATES,
148 U.S. 214; WRIGHT V. BLAKESLEE, 101 U.S. 174; BARTLETT V. KANE, 16
HOW.  263; MOORE SHIPBUILDING CO. V. UNITED STATES, 50 F.2D 288. 
TAYLOE V. SANDFORD, 7 WHEAT.  13, 17; AND STEARNS V. UNITED STATES, 22
FED. CAS. 1188, 1192, DISTINGUISHED. 

ALL OF THE CASES ABOVE CITED WHICH HELD THE ADDITION TO BE A PENALTY
OR PUNISHMENT WERE CIVIL IN THEIR NATURE.  IN ALL OF THEM THE RULES OF
EVIDENCE AND OF PROCEDURE APPLICABLE TO CIVIL ACTIONS WERE APPLIED,
EXCEPT THAT THE DEFENDANT COULD NOT BE COMPELLED TO BEAR WITNESS
AGAINST HIMSELF.  LEES V. UNITED STATES, 150 U.S. 476, 480; BOYD V.
UNITED STATES, 116 U.S. 616.  THIS APPLICATION OF RULES OF CIVIL
PROCEDURE INCLUDED ADMISSIBILITY OF EVIDENCE, UNITED STATES V. ZUCKER,
161 U.S. 475, ALSO QUANTUM OF PROOF, UNITED STATES V. REGAN, 232 U.S.
37, AND DIRECTION OF VERDICTS, HEPNER V. UNITED STATES, 213 U.S. 103. 
THE PENALTIES WERE EITHER ASSESSED BY ADMINISTRATIVE OFFICIALS OR SUED
FOR IN A CIVIL ACTION. 

DESPITE THE FACT THAT THE STATUTORY PROVISIONS SO ENFORCED WERE CIVIL
IN THEIR NATURE, OR AT MOST QUASI CRIMINAL - THIS TERM WAS APPLIED TO
THEM IN BOYD V. UNITED STATES, SUPRA, (P. 634) - THEY WERE UNIFORMLY
HELD TO BE PENALTIES, I.E., PUNISHMENT FOR WRONGFUL CONDUCT.  IN NONE
OF THE CASES DID THE FACT OF ADHERENCE TO THE CIVIL FORMS OF ACTION
MILITATE AGAINST A DETERMINATION THAT THE IMPOSITION WAS PENAL IN
CHARACTER.  OCEANIC NAVIGATION CO. V. STRANAHAN, 214 U.S. 320,
DISTINGUISHED. 

NEITHER THE METHOD OF COLLECTION NOR THE TAXPAYER'S INABILITY TO
INVOKE THE AID OF EQUITY TO ENJOIN COLLECTION ARE DETERMINATIVE OF THE
PUNITIVE CHARACTER OF SUCH ADDITIONS.  HELWIG V. UNITED STATES, SUPRA;
UNITED STATES V. CHOUTEAU, 102 U.S. 603, 611; DORSHEIMER V. UNITED
STATES, SUPRA. 

IN STOCKWELL V. UNITED STATES, 13 WALL.  531, NO QUESTION OF DOUBLE
JEOPARDY WAS PRESENTED NOR DID THE COURT BY USING THE WORD
"COMPENSATORY" MEAN TO DETRACT FROM THE ESSENTIALLY PUNITIVE CHARACTER
OF THE PENALTY. 

THE CONSTITUTIONAL PROVISIONS AGAINST DOUBLE JEOPARDY BAR ANY PRESENT
IMPOSITION OF THE FIFTY PER CENTUM ADDITION TO THE TAX.  BOYD V. UNITED
STATES, 116 U.S. 616; MURPHY V. UNITED STATES, 272 U.S. 630; UNITED
STATES V. WARNER BROTHERS PICTURES, INC., 13 F.SUPP.  614; UNITED
STATES V. DONALDSON-SHULTZ CO., 148 FED. 581; UNITED STATES V.
CHOUTEAU, 102 U.S. 603; COFFEY V. UNITED STATES, 116 U.S. 436; VARIOUS
ITEMS V. UNITED STATES, 282 U.S. 577; UNITED STATES V. GLIDDEN CO., 78
F.2D 639; 296 U.S. 652. 

ALL THE FACTS AND INTENTS REQUISITE TO THE IMPOSITION OF THE 50%
ADDITION TO THE DEFICIENCY WERE PUT IN ISSUE AND DETERMINED AGAINST THE
GOVERNMENT IN THE CRIMINAL TRIAL, AND THE JUDGMENT OF ACQUITTAL BARS
PETITIONER FROM OBTAINING A SECOND JUDGMENT BASED UPON THE SAME FACTS
AND INTENTS. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

REVENUE ACT OF 1928, C. 852, SEC. 293, 45 STAT. 791, PROVIDES, IN
DEALING WITH ASSESSMENT OF DEFICIENCIES IN INCOME TAX RETURNS: 

"(B)  FRAUD.  - IF ANY PART OF ANY DEFICIENCY IS DUE TO FRAUD WITH
INTENT TO EVADE TAX, THEN 50 PER CENTUM OF THE TOTAL AMOUNT OF THE
DEFICIENCY (IN ADDITION TO SUCH DEFICIENCY) SHALL BE SO ASSESSED,
COLLECTED AND PAID...." 

THE QUESTION FOR DECISION IS WHETHER ASSESSMENT OF THE ADDITION IS
BARRED BY THE ACQUITTAL OF THE DEFENDANT ON AN INDICTMENT UNDER SEC.
146(B) OF THE SAME ACT FOR A WILFULL ATTEMPT TO EVADE AND DEFEAT THE
TAX. 

THE COMMISSIONER OF INTERNAL REVENUE FOUND THAT CHARLES E. MITCHELL
OF NEW YORK HAD, IN HIS INCOME TAX RETURN FOR THE YEAR 1929,
FRAUDULENTLY DEDUCTED FROM ADMITTED GROSS INCOME AN ALLEGED LOSS OF
$2,872,305.50 FROM A PURPORTED SALE OF 18,300 SHARES OF NATIONAL CITY
BANK STOCK TO HIS WIFE; THAT HE HAD FRAUDULENTLY FAILED TO RETURN THE
SUM OF $666,666.67 RECEIVED BY HIM AS A DISTRIBUTION FROM THE
MANAGEMENT FUND OF THE NATIONAL CITY COMPANY, OF WHICH HE WAS CHAIRMAN;
AND THAT THESE FRAUDULENT ACTS WERE DONE WITH INTENT TO EVADE THE TAX. 
ON DECEMBER 8, 1933, THE COMMISSIONER NOTIFIED MITCHELL THAT THERE WAS
A DEFICIENCY IN HIS TAX RETURN OF $728,709.84 AND, ON ACCOUNT OF THE
FRAUD, A 50 PER CENT. ADDITION THERETO IN THE SUM OF $364,354.92. 

MITCHELL APPEALED TO THE BOARD OF TAX APPEALS, WHICH SUSTAINED THE
COMMISSIONER'S DETERMINATION.  32 B.T.A. 1093.  UPON A PETITION FOR
REVIEW, THE CIRCUIT COURT OF APPEALS CONCLUDED THAT THERE WAS AMPLE
EVIDENCE TO SUPPORT THE BOARD'S FINDINGS THAT MITCHELL HAD FRAUDULENTLY
MADE DEDUCTION OF THE LOSS AND THAT HE HAD FRAUDULENTLY FAILED TO
RETURN THE AMOUNT RECEIVED FROM THE MANAGEMENT FUND; AND THAT, DESPITE
THE FACTS HEREAFTER STATED, THE BOARD WAS FREE TO FIND THE FACTS
ACCORDING TO THE EVIDENCE.  IT ACCORDINGLY AFFIRMED THE ASSESSMENT OF
THE DEFICIENCY OF $728,709.84.  BUT IT REVERSED THE BOARD'S APPROVAL OF
THE ADDITIONAL ASSESSMENT OF $364,354.92, BECAUSE OF THE FOLLOWING
FACTS: 

BEFORE THE DEFICIENCY ASSESSMENT WAS MADE MITCHELL HAD BEEN INDICTED
IN THE FEDERAL COURT FOR SOUTHERN NEW YORK UNDER SEC. 146(B) OF THE
REVENUE ACT OF 1928, WHICH PROVIDES: 

"ANY PERSON  ...  WHO WILLFULLY ATTEMPTS IN ANY MANNER TO EVADE OR
DEFEAT ANY TAX IMPOSED BY THIS TITLE OR THE PAYMENT THEREOF, SHALL, IN
ADDITION TO OTHER PENALTIES PROVIDED BY LAW, BE GUILTY OF A FELONY AND,
UPON CONVICTION THEREOF, BE FINED NOT MORE THAN $10,000, OR IMPRISONED
FOR NOT MORE THAN 5 YEARS, OR BOTH, TOGETHER WITH THE COSTS OF
PROSECUTION." 

THE FIRST COUNT CHARGED THAT MITCHELL "UNLAWFULLY, WILFULLY,
KNOWINGLY, FELONIOUSLY, AND FRAUDULENTLY DID ATTEMPT TO DEFEAT AND
EVADE AN INCOME TAX OF, TO WIT, $728,709.84, UPON HIS NET INCOME FOR
1929."  HE WAS TRIED ON THE INDICTMENT AND ACQUITTED ON ALL THE
COUNTS.  THE ITEM OF $728,709.84 SET OUT IN THE FIRST COUNT IS THE SAME
ITEM AS THAT INVOLVED IN THE DEFICIENCY ASSESSED; AND BOTH AROSE FROM
THE SAME TRANSACTIONS OF MITCHELL.  BUT THE ADDITION OF $364,354.92 BY
REASON OF FRAUD WAS NOT INVOLVED IN THE INDICTMENT. 

THE CIRCUIT COURT OF APPEALS HELD THAT THE PRIOR JUDGMENT OF
ACQUITTAL WAS NOT A BAR UNDER THE DOCTRINE OF RES JUDICATA; AND HENCE
IT AFFIRMED THE ASSESSMENT OF THE $728,709.84.  BUT IT HELD THAT OUR
DECISIONS IN COFFEY V. UNITED STATES, 116 U.S. 436, AND UNITED STATES
V. LA FRANCA, 282 U.S. 568, REQUIRED IT "TO TREAT THE IMPOSITION OF THE
PENALTY OF 50 PER CENT. AS BARRED BY THE PRIOR ACQUITTAL OF MITCHELL IN
THE CRIMINAL ACTION."  89 F.(2D) 873.  MITCHELL'S PETITION FOR
CERTIORARI TO REVIEW SO MUCH OF THE JUDGMENT AS UPHELD THE ASSESSMENT
OF THE DEFICIENCY OF $728,709.84 WAS DENIED.  302 U.S. 723.  THE
COMMISSIONER'S PETITION TO REVIEW SO MUCH OF THE JUDGMENT AS DENIED THE
50 PER CENTUM IN ADDITION WAS GRANTED, BECAUSE OF THE IMPORTANCE IN THE
ADMINISTRATION OF THE REVENUE LAWS OF THE QUESTIONS PRESENTED AND
ALLEGED CONFLICT IN DECISIONS.  302 U.S. 670. 

FIRST.  MITCHELL CONTENDS THAT THE CLAIM FOR THE 50 PER CENT. IS
BARRED BY THE DOCTRINE OF RES JUDICATA.  HE ASSERTS THAT ALL THE FACTS
AND INTENTS REQUISITE TO THE IMPOSITION OF THE 50 PER CENTUM ADDITION
TO THE DEFICIENCY WERE PUT IN ISSUE AND DETERMINED AGAINST THE
GOVERNMENT IN THE CRIMINAL TRIAL, AND THAT HENCE, UNDER THE DOCTRINE OF
RES JUDICATA THE JUDGMENT OF ACQUITTAL BARS IT FROM OBTAINING A SECOND
JUDGMENT BASED UPON THE SAME FACTS AND INTENTS.  SINCE THIS PROCEEDING
TO DETERMINE WHETHER THE AMOUNT CLAIMED IS PAYABLE AS A TAX IS A
PROCEEDING DIFFERENT IN ITS NATURE FROM THE INDICTMENT FOR THE CRIME OF
WILFULLY ATTEMPTING TO EVADE THE TAX, THE CONTENTION THAT THE DOCTRINE
OF ESTOPPEL BY JUDGMENT APPLIES RESTS WHOLLY ON THE ASSERTION THAT THE
ISSUES HERE PRESENTED WERE LITIGATED AND DETERMINED IN THE CRIMINAL
PROCEEDING.  COMPARE TAIT V. WESTERN MARYLAND RY. CO., 289 U.S. 620,
623.  BUT THIS IS NOT TRUE. 

THE DIFFERENCE IN DEGREE OF THE BURDEN OF PROOF IN CRIMINAL AND CIVIL
CASES PRECLUDES APPLICATION OF THE DOCTRINE OF RES JUDICATA.  THE
ACQUITTAL WAS "MERELY  ...  AN ADJUDICATION THAT THE PROOF WAS NOT
SUFFICIENT TO OVERCOME ALL REASONABLE DOUBT OF THE GUILT OF THE
ACCUSED."  LEWIS V. FRICK, 233 U.S. 291, 302.  IT DID NOT DETERMINE
THAT MITCHELL HAD NOT WILFULLY ATTEMPTED TO EVADE THE TAX.  THAT
ACQUITTAL ON A CRIMINAL CHARGE IS NOT A BAR TO A CIVIL ACTION BY THE
GOVERNMENT, REMEDIAL IN ITS NATURE, ARISING OUT OF THE SAME FACTS ON
WHICH THE CRIMINAL PROCEEDING WAS BASED HAS LONG BEEN SETTLED.  STONE
V. UNITED STATES, 167 U.S. 178, 188; MURPHY V. UNITED STATES, 272 U.S.
630, 631, 632.  COMPARE CHANTANGCO V. ABAROA, 218 U.S. 476, 481, 482. 
FN1  WHERE THE OBJECTIVE OF THE SUBSEQUENT ACTION LIKEWISE IS
PUNISHMENT, THE ACQUITTAL IS A BAR, BECAUSE TO ENTERTAIN THE SECOND
PROCEEDING FOR PUNISHMENT WOULD SUBJECT THE DEFENDANT TO DOUBLE
JEOPARDY; AND DOUBLE JEOPARDY IS PRECLUDED BY THE FIFTH AMENDMENT
WHETHER THE VERDICT WAS AN ACQUITTAL OR A CONVICTION.  MURPHY V. UNITED
STATES, 272 U.S. 630, 632. 

THE GOVERNMENT URGES THAT APPLICATION OF THE DOCTRINE OF RES JUDICATA
IS PRECLUDED ALSO BY THE DIFFERENCE IN THE ISSUES PRESENTED IN THE TWO
CASES; THAT ALTHOUGH THE INDICTMENT AND THIS PROCEEDING ARISE OUT OF
THE SAME TRANSACTIONS AND FACTS, THE ISSUES IN THEM ARE NOT THE SAME;
THAT ON THE INDICTMENT THE ISSUE WAS WHETHER MITCHELL HAD "WILLFULLY"
ATTEMPTED TO "EVADE OR DEFEAT" THE TAX; THAT WHETHER HE HAD DONE SO
"FRAUDULENTLY" WAS NOT THERE AN ISSUE, UNITED STATES V. SCHARTON, 285
U.S. 518; COMPARE UNITED STATES V. MURDOCK, 290 U.S. 389, 397; AND THAT
IN THIS PROCEEDING THE ISSUE IS SPECIFICALLY WHETHER THE DEFICIENCY WAS
"DUE TO FRAUD."  COMPARE BURTON V. UNITED STATES, 202 U.S. 344, 380. 
SINCE THERE WAS NOT EVEN AN ADJUDICATION THAT MITCHELL DID NOT WILFULLY
ATTEMPT TO EVADE OR DEFEAT THE TAX, IT IS NOT NECESSARY TO DECIDE
WHETHER SUCH AN ADJUDICATION WOULD BE DECISIVE ALSO OF THIS ISSUE OF
FRAUD.  COMPARE HANBY V. COMMISSIONER, 67 F.(2D) 125, 129. 

SECOND.  MITCHELL CONTENDS THAT THIS PROCEEDING IS BARRED UNDER THE
DOCTRINE OF DOUBLE JEOPARDY BECAUSE THE 50 PER CENTUM ADDITION OF
$364,354.92 IS NOT A TAX, BUT A CRIMINAL PENALTY INTENDED AS PUNISHMENT
FOR ALLEGEDLY FRAUDULENT ACTS.  UNLESS THIS SANCTION WAS INTENDED AS
PUNISHMENT, SO THAT THE PROCEEDING IS ESSENTIALLY CRIMINAL, THE DOUBLE
JEOPARDY CLAUSE PROVIDED FOR THE DEFENDANT IN CRIMINAL PROSECUTIONS IS
NOT APPLICABLE. 

1.  IN ASSESSING INCOME TAXES THE GOVERNMENT RELIES PRIMARILY UPON
THE DISCLOSURE BY THE TAXPAYER OF THE RELEVANT FACTS.  THIS DISCLOSURE
IT REQUIRES HIM TO MAKE IN HIS ANNUAL RETURN.  TO ENSURE FULL AND
HONEST DISCLOSURE, TO DISCOURAGE FRAUDULENT ATTEMPTS TO EVADE THE TAX,
CONGRESS IMPOSES SANCTIONS.  SUCH SANCTIONS MAY CONFESSEDLY BE EITHER
CRIMINAL OR CIVIL.  AS STATED IN OCEANIC STEAM NAVIGATION CO. V.
STRANAHAN, 214 U.S. 320, 339: 

"IN ACCORD WITH THIS SETTLED JUDICIAL CONSTRUCTION, THE LEGISLATION
OF CONGRESS FROM THE BEGINNING, NOT ONLY AS TO TARIFF BUT AS TO
INTERNAL REVENUE, TAXATION AND OTHER SUBJECTS, HAS PROCEEDED ON THE
CONCEPTION THAT IT WAS WITHIN THE COMPETENCY OF CONGRESS, WHEN
LEGISLATING AS TO MATTERS EXCLUSIVELY WITHIN ITS CONTROL, TO IMPOSE
APPROPRIATE OBLIGATIONS AND SANCTION THEIR ENFORCEMENT BY REASONABLE
MONEY PENALTIES, GIVING TO EXECUTIVE OFFICERS THE POWER TO ENFORCE SUCH
PENALTIES WITHOUT THE NECESSITY OF INVOKING THE JUDICIAL POWER." 
CONGRESS MAY IMPOSE BOTH A CRIMINAL AND A CIVIL SANCTION IN RESPECT TO
THE SAME ACT OR OMISSION; FOR THE DOUBLE JEOPARDY CLAUSE PROHIBITS
MERELY PUNISHING TWICE, OR ATTEMPTING A SECOND TIME TO PUNISH
CRIMINALLY, FOR THE SAME OFFENSE.  THE QUESTION FOR DECISION IS THUS
WHETHER SEC. 293(B) IMPOSES A CRIMINAL SANCTION.  THAT QUESTION IS ONE
OF STATUTORY CONSTRUCTION.  COMPARE MURPHY V. UNITED STATES, 272 U.S.
630, 632. 

REMEDIAL SANCTIONS MAY BE OF VARYING TYPES.  ONE WHICH IS
CHARACTERISTICALLY FREE OF THE PUNITIVE CRIMINAL ELEMENT IS REVOCATION
OF A PRIVILEGE VOLUNTARILY GRANTED.  FN2 

FORFEITURE OF GOODS OR THEIR VALUE AND THE PAYMENT OF FIXED OR
VARIABLE SUMS OF MONEY ARE OTHER SANCTIONS WHICH HAVE BEEN RECOGNIZED
AS ENFORCIBLE BY CIVIL PROCEEDINGS SINCE THE ORIGINAL REVENUE LAW OF
1789.  ACT OF JULY 31, 1789, C. 5, SEC. 36, 1 STAT. 29, 47.  IN SPITE
OF THEIR COMPARATIVE SEVERITY, SUCH SANCTIONS HAVE BEEN UPHELD AGAINST
THE CONTENTION THAT THEY ARE ESSENTIALLY CRIMINAL AND SUBJECT TO THE
PROCEDURAL RULES GOVERNING CRIMINAL PROSECUTIONS.  PASSAVANT V. UNITED
STATES, 148 U.S. 214; UNITED STATES V. ZUCKER, 161 U.S. 475; HEPNER V.
UNITED STATES, 213 U.S. 103; OCEANIC STEAM NAVIGATION CO. V. STRANAHAN,
214 U.S. 320; CHICAGO, B. & Q. RY. CO. V. UNITED STATES, 220 U.S. 559,
578; UNITED STATES V. REGAN, 232 U.S. 37; GRANT BROS. CONSTRUCTION CO.
V. UNITED STATES, 232 U.S. 647, 660; MURPHY V. UNITED STATES, 272 U.S.
630; VARIOUS ITEMS V. UNITED STATES, 282 U.S. 577; LLOYD SABAUDO
SOCIETA V. ELTING, 287 U.S. 329, 334.  FN3 

2.  THE REMEDIAL CHARACTER OF SANCTIONS IMPOSING ADDITIONS TO A TAX
HAS BEEN MADE CLEAR BY THIS COURT IN PASSING UPON SIMILAR LEGISLATION. 
THEY ARE PROVIDED PRIMARILY AS A SAFEGUARD FOR THE PROTECTION OF THE
REVENUE AND TO REIMBURSE THE GOVERNMENT FOR THE HEAVY EXPENSE OF
INVESTIGATION AND THE LOSS RESULTING FROM THE TAXPAYER'S FRAUD.  FN4
IN STOCKWELL V. UNITED STATES, 13 WALL.  531, 547, 551, THE COURT SAID
OF A PROVISION WHICH ADDED DOUBLE THE VALUE OF THE GOODS: 

"IT MUST THEREFORE BE CONSIDERED AS REMEDIAL, AS PROVIDING INDEMNITY
FOR LOSS.  AND IT IS NOT THE LESS SO BECAUSE THE LIABILITY OF THE
WRONGDOER IS MEASURED BY DOUBLE THE VALUE OF THE GOODS RECEIVED,
CONCEALED, OR PURCHASED, INSTEAD OF THEIR SINGLE VALUE.  THE ACT OF
ABSTRACTING GOODS ILLEGALLY IMPORTED, RECEIVING, CONCEALING OR BUYING
THEM, INTERPOSES DIFFICULTIES IN THE WAY OF A GOVERNMENT SEIZURE, AND
IMPAIRS, THEREFORE, THE VALUE OF THE GOVERNMENT RIGHT.  IT IS, THEN,
HARDLY ACCURATE TO SAY THAT THE ONLY LOSS THE GOVERNMENT CAN SUSTAIN
FROM CONCEALING THE GOODS LIABLE TO SEIZURE IS THEIR SINGLE VALUE, OR
TO ASSERT THAT THE LIABILITY IMPOSED BY THE STATUTE OF DOUBLE THE VALUE
IS ARBITRARY AND WITHOUT REFERENCE TO INDEMNIFICATION.  DOUBLE THE
VALUE MAY NOT BE MORE THAN COMPLETE INDEMNITY.... 

"THE ACT OF 1823 WAS, AS WE HAVE SEEN, REMEDIAL IN ITS NATURE.  ITS
PURPOSE WAS TO SECURE FULL COMPENSATION FOR INTERFERENCE WITH THE
RIGHTS OF THE UNITED STATES...."  FN5 

3.  IN SECS. 276 AND 293 IT IS PROVIDED THAT COLLECTION OF THE 50 PER
CENTUM ADDITION, LIKE THAT OF THE PRIMARY TAX ITSELF, MAY BE MADE "BY
DISTRAINT" AS WELL AS "BY A PROCEEDING IN COURT."  IF THE SECTION
PROVIDED A CRIMINAL SANCTION, THE PROVISION FOR COLLECTION BY DISTRAINT
WOULD MAKE IT UNCONSTITUTIONAL.  FN6  COMPARE LIPKE V. LEDERER, 259
U.S. 557; REGAL DRUG CORP. V. WARDELL, 260 U.S. 386.  SEE ALSO UNITED
STATES V. CHOUTEAU, 102 U.S. 603, 611; BOYD V. UNITED STATES, 116 U.S.
616; LEES V. UNITED STATES, 150 U.S. 476; UNITED STATES V. LA FRANCA,
282 U.S. 568.  THAT CONGRESS PROVIDED A DISTINCTLY CIVIL PROCEDURE FOR
THE COLLECTION OF THE ADDITIONAL 50 PER CENTUM INDICATES CLEARLY THAT
IT INTENDED A CIVIL, NOT A CRIMINAL, SANCTION.  CIVIL PROCEDURE IS
INCOMPATIBLE WITH THE ACCEPTED RULES AND CONSTITUTIONAL GUARANTIES
GOVERNING THE TRIAL OF CRIMINAL PROSECUTIONS, AND WHERE CIVIL PROCEDURE
IS PRESCRIBED FOR THE ENFORCEMENT OF REMEDIAL SANCTIONS, THOSE RULES
AND GUARANTIES DO NOT APPLY.  THUS THE DETERMINATION OF THE FACTS UPON
WHICH LIABILITY IS BASED MAY BE BY AN ADMINISTRATIVE AGENCY INSTEAD OF
A JURY,  FN7  OR IF THE PRESCRIBED PROCEEDING IS IN THE FORM OF A CIVIL
SUIT, A VERDICT MAY BE DIRECTED AGAINST THE DEFENDANT; FN8 THERE IS NO
BURDEN UPON THE GOVERNMENT TO PROVE ITS CASE BEYOND A REASONABLE DOUBT,
FN9  AND IT MAY APPEAL FROM AN ADVERSE DECISION; FN10  FURTHERMORE,
THE DEFENDANT HAS NO CONSTITUTIONAL RIGHT TO BE CONFRONTED WITH THE
WITNESSES AGAINST HIM,  FN11  OR TO REFUSE TO TESTIFY; FN12  AND
FINALLY, IN THE CIVIL ENFORCEMENT OF A REMEDIAL SANCTION THERE CAN BE
NO DOUBLE JEOPARDY.  FN13 

4.  THE FACT THAT THE REVENUE ACT OF 1928 CONTAINS TWO SEPARATE AND
DISTINCT PROVISIONS IMPOSING SANCTIONS, AND THAT THESE APPEAR IN
DIFFERENT PARTS OF THE STATUTE, HELPS TO MAKE CLEAR THE CHARACTER OF
THAT HERE INVOKED.  FN14  THE SANCTION OF FINE AND IMPRISONMENT
PRESCRIBED BY SEC. 146(B) FOR WILFULL ATTEMPTS "IN ANY MANNER TO EVADE
OR DEFEAT ANY (INCOME) TAX," INTRODUCED INTO THE ACT UNDER THE HEADING
"PENALTIES," IS OBVIOUSLY A CRIMINAL ONE.  THE SANCTION OF 50 PER
CENTUM ADDITION "IF ANY PART OF ANY DEFICIENCY IS DUE TO FRAUD WITH
INTENT TO EVADE TAX," PRESCRIBED BY SEC. 293(B), INTRODUCED INTO THE
ACT UNDER THE HEADING "ADDITIONS TO THE TAX," WAS CLEARLY INTENDED AS A
CIVIL ONE.  THIS SANCTION, AND OTHER ADDITIONS TO THE TAX, ARE SET
FORTH IN SUPPLEMENT M, ENTITLED "INTEREST AND ADDITIONS TO THE TAX." 
THE SUPPLEMENT INCLUDES, BESIDES SEC. 293(B), SECS. 291, 292, 293(A)
AND 294.  SECTION 291 PRESCRIBES A 25 PER CENTUM ADDITION FOR FAILURE
TO MAKE AND FILE A RETURN; SEC. 292 PRESCRIBES INTEREST AT THE RATE OF
6 PER CENT. PER ANNUM UPON THE DEFICIENCY FROM THE DATE PRESCRIBED FOR
PAYMENT OF THE TAX; SEC. 293(A), AN ADDITION OF 5 PER CENTUM IF THE
DEFICIENCY "IS DUE TO NEGLIGENCE, OR INTENTIONAL DISREGARD OF RULES AND
REGULATIONS BUT WITHOUT INTENT TO DEFRAUD"; AND SEC. 294 PRESCRIBES AN
ADDITION TO THE TAX OF 1 PER CENTUM PER MONTH IN CASE OF NON-PAYMENT. 
OBVIOUSLY ALL OF THESE "ADDITIONS TO THE TAX" WERE INTENDED BY CONGRESS
AS CIVIL INCIDENTS OF THE ASSESSMENT AND COLLECTION OF THE INCOME TAX. 
FN15 

THIRD.  MITCHELL INSISTS THAT COFFEY V. UNITED STATES, 116 U.S. 436,
REQUIRES AFFIRMANCE OF THE JUDGMENT; THE GOVERNMENT ARGUES THAT THIS
CASE IS DISTINGUISHABLE, AND, IF NOT, THAT IT SHOULD BE DISAPPROVED. 
THE CIRCUIT COURT OF APPEALS, CITING STONE V. UNITED STATES, 167 U.S.
178, 186-189, AND LATER CASES, RECOGNIZED THAT THE RULE OF THE COFFEY
CASE "DID NOT APPLY TO A SITUATION WHERE THERE HAD BEEN AN ACQUITTAL ON
A CRIMINAL CHARGE FOLLOWED BY A CIVIL ACTION REQUIRING A DIFFERENT
DEGREE OF PROOF"; BUT CONSTRUING SEC. 293(B) AS IMPOSING A PENALTY
DESIGNED TO PUNISH FRAUDULENT TAX DODGERS "AND NOT AS A MERE PREVENTIVE
MEASURE," IT THOUGHT THAT THE COFFEY CASE AND UNITED STATES V. LA
FRANCA, 282 U.S. 568, REQUIRED IT "TO TREAT THE IMPOSITION OF THE
PENALTY OF 50 PER CENT. AS BARRED BY THE PRIOR ACQUITTAL OF MITCHELL IN
THE CRIMINAL ACTION."  SINCE WE CONSTRUE SEC. 293(B) AS IMPOSING A
CIVIL ADMINISTRATIVE SANCTION, NEITHER CASE PRESENTS AN OBSTACLE TO THE
RECOVERY OF THE $364,354.92, THE 50 PER CENTUM ADDITION HERE IN ISSUE. 
REVERSED. 

FN1  UNITED STATES V. WARNER BROS. PICTURES, INC., 13 F.SUPP. 
614(E.D. MO.), AFFIRMED ON OTHER GROUNDS, 298 U.S. 643; UNITED STATES
V. DONALDSON-SCHULTZ CO., 148 FED. 581(C.C.A. 4); UNITED STATES V.
SCHNEIDER, 35 FED. 107(C.C.D. ORE.); SANDEN V. MORGAN, 225 FED. 266,
268-69(S.D.N.Y.) 

FN2  TYPICAL OF THIS CLASS OF SANCTIONS IS THE DEPORTATION OF
ALIENS.  FONG YUE TING V. UNITED STATES, 149 U.S. 698; LOW WAH SUEY V.
BACKUS, 225 U.S. 460; ZAKONAITE V. WOLF, 226 U.S. 272; BUGAJEWITZ V.
ADAMS, 228 U.S. 585; NG FUNG HO V. WHITE, 259 U.S. 276; UNITED STATES
EX REL. BILOKUMSKY V. TOD, 263 U.S. 149.  DISBARMENT IS LIKEWISE A
SANCTION OF THIS TYPE.  EX PARTE WALL, 107 U.S. 265.  COMPARE ALSO
HAWKER V. NEW YORK, 170 U.S. 189, 196, 199-200; BOARD OF TRADE V.
WALLACE, 67 F.(2D) 402, 407(C.C.A. 7); FARMERS' LIVESTOCK COMMISSION
CO. V. UNITED STATES, 54 F.(2D) 375, 378(E.D. ILL.). 

FN3  SEE ALSO NOTES 7 TO 13, INFRA.  THE DISTINCTION HERE TAKEN
BETWEEN SANCTIONS THAT ARE REMEDIAL AND THOSE THAT ARE PUNITIVE HAS NOT
GENERALLY BEEN SPECIFICALLY ENUNCIATED.  IN DETERMINING WHETHER
PARTICULAR RULES OF CRIMINAL PROCEDURE ARE APPLICABLE TO CIVIL ACTIONS
TO ENFORCE SANCTIONS, THE CASES HAVE USUALLY ATTEMPTED TO DISTINGUISH
BETWEEN THE TYPE OF PROCEDURAL RULE INVOLVED RATHER THAN THE KIND OF
SANCTION BEING ENFORCED.  THUS HEPNER V. UNITED STATES, 213 U.S. 103,
111-112, HOLDING THAT A VERDICT MAY BE DIRECTED FOR THE GOVERNMENT, AND
UNITED STATES V. REGAN, 232 U.S. 37, 50, HOLDING THAT THE GOVERNMENT
NEED NOT PROVE ITS CASE BEYOND A REASONABLE DOUBT, DISTINGUISHED BOYD
V. UNITED STATES, 116 U.S. 616, AND LEES V. UNITED STATES, 150 U.S.
476, HOLDING THAT THE DEFENDANT COULD NOT BE REQUIRED TO BE A WITNESS
AGAINST HIMSELF ON THE GROUND THAT "THE GUARANTY IN THE FIFTH AMENDMENT
TO THE CONSTITUTION AGAINST COMPULSORY SELF-INCRIMINATION  ...  IS OF
BROADER SCOPE THAN ARE THE GUARANTIES IN ARTICLE III AND THE SIXTH
AMENDMENT GOVERNING TRIALS IN CRIMINAL PROSECUTIONS."  232 U.S. AT 50. 
COMPARE ALSO PIERCE V. UNITED STATES, 255 U.S. 398, 401. 

FN4  TAYLOR V. UNITED STATES, 3 HOW.  197, 210; BARTLETT V. KANE, 16
HOW.  263, 274; CLIQUOT'S CHAMPAGNE, 3 WALL.  114, 145; DORSHEIMER V.
UNITED STATES, 7 WALL.  166, 173; PASSAVANT V. UNITED STATES, 148 U.S.
214, 221.  COMPARE MCDOWELL V. HEINER, 9 F.(2D) 120(W.D. PA.), AFFIRMED
ON OPINION BELOW, 15 F.(2D) 1015(C.C.A. 3); DOLL V. EVANS, 7 FED. CAS.
NO. 3,969(C.C.E.D. PA.); STEARNS V. UNITED STATES, 22 FED. CAS. NO.
13,341(C.C.). 

FN5  COMPARE UNITED STATES V. CLAFLIN, 97 U.S. 546, 552-53. 

FN6  EVEN THOUGH CONGRESS MAY NOT PROVIDE CIVIL PROCEDURE FOR THE
ENFORCEMENT OF PUNITIVE SANCTIONS, NOTHING IN THE CONSTITUTION PREVENTS
THE ENFORCEMENT OF DISTINCTLY REMEDIAL SANCTIONS BY A CRIMINAL INSTEAD
OF A CIVIL FORM OF PROCEEDING.  COMPARE UNITED STATES V. STEVENSON, 215
U.S. 190, WITH UNITED STATES V. REGAN, 232 U.S. 37, BOTH ENFORCING THE
SANCTION PRESCRIBED IN 34 STAT. 898.  THE FACT THAT A CRIMINAL
PROCEDURE IS PRESCRIBED FOR THE ENFORCEMENT OF A SANCTION MAY BE AN
INDICATION THAT IT IS INTENDED TO BE PUNITIVE, BUT CANNOT BE DEEMED
CONCLUSIVE IF ALTERNATIVE ENFORCEMENT BY A CIVIL PROCEEDING IS
SUSTAINED. 

FN7  PASSAVANT V. UNITED STATES, 148 U.S. 214; OCEANIC STEAM
NAVIGATION CO. V. STRANAHAN, 214 U.S. 320; ELTING V. NORTH GERMAN
LLOYD, 287 U.S. 324, 327-28; LLOYD SABAUDO SOCIETA V. ELTING, 287 U.S.
329, 334; CF. HAMBURG-AMERICAN LINE V. UNITED STATES, 291 U.S. 420;
OSAKA SHOSEN KAISHA LINE V. UNITED STATES, 300 U.S. 98.  COMPARE ALSO
SAN SOUCI V. COMPAGNIE FRANCAISE DE NAVIGATION A VAPEUR, 71 F.(2D) 651,
653(C.C.A. 1); LLOYD ROYAL BELGE, S.A. V. ELTING, 61 F.(2D) 745,
747(C.C.A. 2); NAVIGAZIONE LIBERA TRIESTINA V. UNITED STATES, 36 F.(2D)
631, 633(C.C.A. 9); CLAY V. SWOPE, 38 FED. 396(C.C.D. KY.).  AND SEE
CASES CITED IN NOTE 2, SUPRA. 

ADMINISTRATIVE DETERMINATION OF SANCTIONS IMPOSED BY THE INCOME TAX
LAWS HAS LIKEWISE BEEN UPHELD.  BERLIN V. COMMISSIONER, 59 F.(2D) 996,
997(C.C.A. 2); MCDOWELL V. HEINER, 9 F.(2D) 120(W.D. PA.), AFF'D ON
OPINION BELOW, 15 F.(2D) 1015(C.C.A. 3); BOARD V. COMMISSIONER, 51
F.(2D) 73, 76(C.C.A. 6); WICKHAM V. COMMISSIONER, 65 F.(2D) 527, 531
32(C.C.A. 8); LITTLE V. HELVERING, 75 F.(2D) 436, 439(C.C.A. 8);
BOTHWELL V. COMMISSIONER, 77 F.(2D) 35, 38(C.C.A. 10); DOLL V. EVANS,
FED. CAS. NO. 3,969(C.C.E.D. PA.). 

FN8  HEPNER V. UNITED STATES, 213 U.S. 103; FOUR PACKAGES V. UNITED
STATES, 97 U.S. 404, 412; CHICAGO, B. & Q. RY. CO. V. UNITED STATES,
220 U.S. 559, 578.  COMPARE UNITED STATES V. THOMPSON, 41 FED.
28(C.C.S.D.N.Y.); UNITED STATES V. ATLANTIC COAST LINE, 182 FED.
284(S.D. GA.). 

FN9  LILIENTHAL'S TOBACCO V. UNITED STATES, 97 U.S. 237, 265-67, 271;
UNITED STATES V. REGAN, 232 U.S. 37; GRANT BROS. CONSTRUCTION CO. V.
UNITED STATES, 232 U.S. 647, 660.  COMPARE NEW YORK CENTRAL & H.R.R.
CO. V. UNITED STATES, 165 FED. 833, 839(C.C.A. 1); GRAIN DISTILLERY NO.
8 V. UNITED STATES, 204 FED. 429(C.C.A. 4); POCAHONTAS DISTILLING CO.
V. UNITED STATES, 218 FED. 782, 786(C.C.A. 4); UNITED STATES V.
LOUISVILLE & N. RY. CO., 162 FED. 185(S.D. ALA.), AFF'D, 174 FED.
1021(C.C.A. 5); ST. LOUIS-S.W. RY. CO. V. UNITED STATES, 183 FED. 770,
771(C.C.A. 5); UNITED STATES V. ILLINOIS CENTRAL R. CO., 170 FED. 542,
545-546(C.C.A. 6); ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 178
FED. 12, 14(C.C.A. 8); MISSOURI, K. & T. RY. CO. V. UNITED STATES, 178
FED. 15, 17-18(C.C.A. 8).  COMPARE ALSO ACT OF MARCH 2, 1799, C. 22,
SEC. 71, 1 STAT. 627, 678; LOCKE V. UNITED STATES, 7 CRANCH 339, 348;
CLIQUOT'S CHAMPAGNE, 3 WALL.  114, 143-44. 

FN10  COMPARE UNITED STATES V. CLAFLIN, 97 U.S. 546; UNITED STATES V.
ZUCKER, 161 U.S. 475; UNITED STATES V. REGAN, 232 U.S. 37.  SEE ALSO
UNITED STATES V. BALTIMORE & O.S.W.R. CO., 159 FED. 33, 38(C.C.A. 6),
MODIFIED, 220 U.S. 94; UNITED STATES V. LOUISVILLE & N.R. CO., 167 FED.
306, 307-308(C.C.A. 6); UNITED STATES V. ILLINOIS CENTRAL R. CO., 170
FED. 542, 545(C.C.A. 6).  COMPARE UNITED STATES V. SANGES, 144 U.S.
310. 

SIMILARLY, IF THE GOVERNMENT IS SUCCESSFUL IT MAY RECOVER COSTS AS IN
OTHER CIVIL SUITS.  GRANT BROS. CONSTRUCTION CO. V. UNITED STATES, 232
U.S. 647, 665.  SEE ALSO UNITED STATES V. SOUTHERN PACIFIC CO., 172
FED. 909, 911(C.C.D. ORE.); UNITED STATES V. MINNEAPOLIS, ST. P. &
S.S.M. RY. CO., 235 FED. 951, 952-953(D. MINN.).    FN11  UNITED STATES
V. ZUCKER, 161 U.S. 475; GRANT BROS. CONSTRUCTION CO. V. UNITED STATES,
232 U.S. 647, 660. 

FN12  COMPARE UNITED STATES EX REL. BILOKUMSKY V. TOD, 263 U.S. 149,
155.  WE DO NOT CONSTRUE BOYD V. UNITED STATES, 116 U.S. 616, OR LEES
V. UNITED STATES, 150 U.S. 476, AS HOLDING TO THE CONTRARY WHERE THE
SANCTION INVOLVED IS REMEDIAL, NOT PUNITIVE.  SEE NOTE 3, SUPRA. 

FN13  MURPHY V. UNITED STATES, 272 U.S. 630; VARIOUS ITEMS V. UNITED
STATES, 282 U.S. 577.  COMPARE EGNER V. UNITED STATES, 16 F.(2D)
597(C.C.A. 3); WOOD V. UNITED STATES, 204 FED. 55, 57(C.C.A. 4); UNITED
STATES V. ST. LOUIS-S.W. RY. CO., 184 FED. 28, 32(C.C.A. 5); SLICK V.
UNITED STATES, 1 F.(2D) 897, 898(C.C.A. 7).  SEE ALSO UNITED STATES V.
THREE COPPER STILLS, 47 FED. 495, 499(D. KY.); UNITED STATES V. OLSEN,
57 FED. 579, 582-586(N.D. CAL.); CASTLE V. UNITED STATES, 17 F.SUPP. 
515, 518-520(CT. CL.).  COMPARE HANBY V. COMMISSIONER, 67 F.(2D)
125(C.C.A. 4). 

FN14  THE BOARD OF TAX APPEALS SAID IN MITCHELL V. COMMISSIONER, 32
B.T.A. 1093, 1136:  "A CAREFUL STUDY OF THE TWO SECTIONS CONVINCES US
THAT THEY ARE BASICALLY DIFFERENT IN CHARACTER AND WERE ENACTED FOR
WHOLLY DIFFERENT PURPOSES.  THE LANGUAGE OF THE TWO SECTIONS DIFFERS
WIDELY AND CONTEMPLATES SITUATIONS WHICH MAY REQUIRE ENTIRELY
DISSIMILAR PROOF." 

FN15  SECTION 104 IMPOSES A SOMEWHAT SIMILAR ADDITIONAL TAX OF 50 PER
CENT. OF THE NET INCOME IN THE CASE OF CORPORATIONS FORMED OR AVAILED
OF FOR THE PURPOSE OF AVOIDING SURTAX ON THEIR SHAREHOLDERS THROUGH
IMPROPER ACCUMULATION OF SURPLUS.  COMPARE UNITED BUSINESS CORP. V.
COMMISSIONER, 62 F.(2D) 754(C.C.A. 2). 

MR. JUSTICE MCREYNOLDS IS OF OPINION THAT THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS SHOULD BE AFFIRMED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






















TICONIC BANK V. SPRAGUE, 303 U.S. 406 


NO. 374.  ARGUED FEBRUARY 2, 3, 1938.  - DECIDED MARCH 7, 1938.  - 90
F.2D 641, AFFIRMED. 


1.  AS AN INCIDENT TO THE RIGHT TO RECOVER THE AMOUNT OF A BANK
DEPOSIT, THE DEPOSITOR IS ENTITLED TO INTEREST AS DAMAGES FOR THE
FAILURE TO PAY UPON DEMAND.  P. 410. 

2.  THE OBLIGATION OF A NATIONAL BANK TO PAY INTEREST AS DAMAGES FOR
DETENTION OF A DEBT IS NOT CUT OFF BY SUSPENSION OF ITS BUSINESS AND
APPOINTMENT OF A RECEIVER.  P. 410. 

3.  THE RULE THAT IN PRO RATA DISTRIBUTION, TO CREDITORS OF AN
INSOLVENT NATIONAL BANK, INTEREST ON CLAIMS IS LIMITED TO INTEREST
ACCRUED PRIOR TO INSOLVENCY, DOES NOT APPLY TO THE CLAIM OF A SECURED
CREDITOR AGAINST THE ASSETS COVERED BY HIS LIEN.  THE SECURED CREDITOR
MAY ENFORCE HIS LIEN AGAINST HIS SECURITY TO SATISFY BOTH PRINCIPAL AND
INTEREST.  P. 411. 

TICONIC NATIONAL BANK ET AL. V. SPRAGUE ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 302 U.S. 675, TO REVIEW THE AFFIRMANCE OF A DECREE OF THE
DISTRICT COURT, 14 F.SUPP.  900, ORDERING THE RECEIVER OF A NATIONAL
BANK TO MAKE PAYMENT TO THE PRESENT RESPONDENTS OF A SUM CONSTITUTING A
TRUST FUND, WITH INTEREST. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER OR NOT A SECURED CREDITOR OF A
NATIONAL BANK, HOLDING A NON-INTEREST BEARING CLAIM, IS ENTITLED TO
INTEREST FOR ANY PERIOD SUBSEQUENT TO THE INSOLVENCY OF THE BANK, WHEN
THE ASSETS ON WHICH HE HAS A LIEN ARE SUFFICIENT TO PAY THE PRINCIPAL
AND INTEREST BUT THE TOTAL ASSETS OF THE BANK ARE NOT SUFFICIENT TO PAY
IN FULL ALL CREDITORS' CLAIMS AS OF THE DATE OF INSOLVENCY. 

ON MARCH 28, 1931, RESPONDENT LOTTIE F. SPRAGUE DELIVERED $5,022.18
TO THE TRUST DEPARTMENT OF THE TICONIC NATIONAL BANK OF WATERVILLE,
MAINE, IN TRUST, UNDER AN AGREEMENT WHICH AUTHORIZED THE TRUSTEE TO
INVEST IN BONDS OR SECURITIES AND TO DEPOSIT AT LEAST $1,000 IN ITS
SAVINGS DEPARTMENT AT USUAL RATES OF INTEREST; REQUIRED SPECIFIED
MONTHLY PAYMENTS, SUBJECT TO CERTAIN CONDITIONS, TO MARGARET SPRAGUE,
ALSO A RESPONDENT HERE; AND RESERVED TO THE GRANTOR THE RIGHT TO REVOKE
THE TRUST AND RESUME POSSESSION OF THE TRUST FUNDS. 

THE TICONIC BANK HAD BEEN AUTHORIZED BY THE FEDERAL RESERVE BOARD TO
ACT IN A TRUST CAPACITY, AS PROVIDED IN SEC. 11(K) OF THE FEDERAL
RESERVE ACT, AS AMENDED (12 U.S.C., SEC. 248(K)).  THAT ACT PROVIDES
THAT FUNDS HELD IN TRUST AWAITING INVESTMENT "SHALL NOT BE USED BY THE
BANK IN THE CONDUCT OF ITS BUSINESS UNLESS IT SHALL FIRST SET ASIDE IN
THE TRUST DEPARTMENT UNITED STATES BONDS OR OTHER SECURITIES" APPROVED
BY THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, AND FURTHER
PROVIDES THAT "IN THE EVENT OF THE FAILURE OF SUCH BANK THE OWNERS OF
THE FUNDS HELD IN TRUST FOR INVESTMENT SHALL HAVE A LIEN ON THE BONDS
OR OTHER SECURITIES SO SET APART IN ADDITION TO THEIR CLAIM AGAINST THE
ESTATE OF THE BANK." 

PENDING INVESTMENT OF FUNDS UNDER THE SPRAGUE TRUST, AND PURSUANT TO
ITS RESOLUTION IMPLEMENTING THE STATUTORY PROVISION JUST QUOTED, THE
TICONIC BANK PLACED THE FUNDS OF THIS TRUST, ALONG WITH OTHER TRUST
FUNDS AWAITING INVESTMENT OR DISTRIBUTION, AS A DEPOSIT IN ITS
COMMERCIAL CHECKING DEPARTMENT TO THE CREDIT OF ITS TRUST DEPARTMENT,
AND SECURED THE TOTAL AMOUNT OF SUCH FUNDS BY SETTING ASIDE IN THE
TRUST DEPARTMENT BONDS, INCLUDING $20,000 KINGDOM OF DENMARK 6'S, 1942,
AT LEAST EQUAL IN VALUE TO THE TOTAL AMOUNT OF SUCH DEPOSITS. 

ON JULY 29, 1935, RESPONDENTS, THE SETTLOR AND BENEFICIARY, BROUGHT
THIS SUIT IN THE DISTRICT COURT FOR MAINE TO HAVE THE BONDS HELD AS
SECURITY WITH RESPECT TO THE TRUST.  IT APPEARS THAT ON AUGUST 3, 1931,
TICONIC BANK SOLD ITS ASSETS (INCLUDING THE DENMARK BONDS) TO THE
PEOPLES NATIONAL BANK (LATER CALLED PEOPLES-TICONIC NATIONAL BANK) IN
CONSIDERATION OF ITS AGREEMENT TO "ASSUME OR PAY ALL THE INDEBTEDNESS
OF SAID TICONIC BANK TO ITS DEPOSITORS"; THAT TICONIC BANK THEN WENT
INTO VOLUNTARY LIQUIDATION; THAT ON MARCH 4, 1933, THE PEOPLES-TICONIC
BANK WAS CLOSED; THAT ARTHUR PICHER WAS APPOINTED RECEIVER FOR PEOPLES
TICONIC BANK ON NOVEMBER 6, 1933, AND SUBSEQUENTLY, ON JUNE 28, 1934,
FOR THE TICONIC BANK, WHICH HAD BEEN CONTINUING ITS VOLUNTARY
LIQUIDATION. 

THE LOWER COURTS TREATED THE SUIT, BROUGHT AGAINST BOTH BANKS AND
AGAINST PICHER AS RECEIVER, AS ONE TO ASSERT AND ENFORCE THE LIEN
PROTECTING THE UNINVESTED FUNDS.  THEY HELD THAT, IN VIEW OF SEC. 11(K)
OF THE FEDERAL RESERVE ACT, AS AMENDED, RESPONDENTS HAD ACQUIRED A LIEN
UPON THE BONDS SET APART BY THE TICONIC BANK TO SECURE THE DEPOSIT OF
THE TRUST DEPARTMENT; AND THAT THIS LIEN HAD NEVER BEEN DISCHARGED OR
DIVESTED AND SO EXTENDED TO THE PROCEEDS OF THE DENMARK BONDS, WHICH
HAD BEEN SOLD BY THE RECEIVER FOR $20,722.66.  WE DO NOT PAUSE TO STATE
THE CONCLUSIONS OF FACT AND OF LAW BY MEANS OF WHICH THE LOWER COURTS
ARRIVED AT THIS RESULT, FOR IN THE GRANT OF THE WRIT OF CERTIORARI THIS
COURT DECLINED TO REVIEW THE RULING THAT A STATUTORY LIEN FOR THE
PROTECTION OF THE OWNERS OF THE FUNDS HELD FOR INVESTMENT EXTENDED TO
THE PROCEEDS OF THE DENMARK BONDS, THE LOWER COURTS HAVING PREDICATED
THEIR DECISION IN LARGE PART ON THE FACTS OF THIS PARTICULAR CASE. 

THE DECREES BELOW DID NOT END WITH THE MATTERS JUST STATED.  THE
DISTRICT COURT, FINDING THAT THE PROCEEDS OF THE BONDS EXCEEDED THE
TRUST FUNDS ON DEPOSIT,  FN1  HELD THE RESPONDENTS ENTITLED TO PAYMENT
IN FULL OF $3,649.65, THE AMOUNT TO WHICH THE SPRAGUE TRUST ACCOUNT HAD
BEEN REDUCED, WITH INTEREST FROM THE DATE OF THE FILING OF THE BILL OF
COMPLAINT.  AT FIRST THE CIRCUIT COURT OF APPEALS REVERSED THAT PART OF
THE DECREE ALLOWING INTEREST, BUT ON REHEARING IT AFFIRMED THE DECREE
IN TOTO, APPROVING THE ALLOWANCE OF INTEREST OUT OF THE PROCEEDS OF THE
DENMARK BONDS, WHICH IT ASSUMED WERE SUFFICIENT TO MEET WITH INTEREST
THE AMOUNT OF ALL TRUST DEPOSITS.  IT RULED THAT ALTHOUGH THE
REQUIREMENT OF RATABLE DISTRIBUTION PRECLUDES THE RECOVERY OF INTEREST
AGAINST THE GENERAL FUNDS OF AN INSOLVENT NATIONAL BANK, THE GENERAL
CREDITORS HAVE NO RIGHTS IN THE TRUST FUNDS HERE INVOLVED UNTIL AFTER
THE SECURED CLAIMS ARE PAID. 

THE ATTENTION OF THIS COURT WAS CALLED TO THE FACT THAT THE RULING
CONFLICTED WITH DECISIONS IN OTHER CIRCUITS, WHERE SECURED CREDITORS
WERE HELD NOT ENTITLED TO ANY INTEREST AFTER THE SUSPENSION OF THE
NATIONAL BANK,  FN2  AND FOR THIS REASON CERTIORARI WAS GRANTED,
LIMITED TO THIS QUESTION OF INTEREST. 

AS AN INCIDENT TO THE RIGHT TO RECOVER AN UNEXPENDED BALANCE IN A
DEPOSIT, A DEPOSITOR IS ENTITLED TO INTEREST AS DAMAGES FOR THE FAILURE
TO PAY THAT BALANCE UPON DEMAND.  FN3  COMPARE STEWART V. BARNES, 153
U.S. 456, 462; UNITED STATES V. NORTH CAROLINA, 136 U.S. 211, 216. 

THE BANK'S OBLIGATION TO PAY INTEREST AS DAMAGES FOR THE DETENTION OF
THE DEBT IS NOT CUT OFF BY SUSPENSION OF ITS BUSINESS AND
RECEIVERSHIP.  THE PRINCIPLE HAS BEEN ESTABLISHED, AND CLAIMANTS HELD
ENTITLED TO SUCH INTEREST, IN CASES WHERE THE PRINCIPAL AMOUNT OF EACH
OF THE CLAIMS WAS PAID IN FULL FROM THE ASSETS OF THE BANK (NATIONAL
BANK V. MECHANICS' NATIONAL BANK, 94 U.S. 437), INCLUDING IF NECESSARY
THE DOUBLE LIABILITY OF THE SHAREHOLDERS (RICHMOND V. IRONS, 121 U.S.
27, 64). 

IT IS TRUE THAT IN THE LIQUIDATION OF NATIONAL BANKS, DIVIDENDS FROM
THE GENERAL FUNDS ON UNSECURED CLAIMS ARE MADE PRO RATA UPON THE AMOUNT
OF EACH CLAIM AS OF THE DATE OF THE INSOLVENCY, WHITE V. KNOX, 111 U.S.
784.  THIS METHOD OF DISTRIBUTION GIVES A PROPORTIONAL PART OF THE
AVAILABLE FUNDS TO EACH CREDITOR, IN ACCORDANCE WITH THE STATUTE
REQUIRING A "RATABLE DIVIDEND."  R.S. SEC. 5236.  WHETHER THE REASON
FOR THIS METHOD OF DETERMINING DIVIDENDS IS TO AVOID PREJUDICE FROM THE
INEVITABLE DELAY OF COURT PROCEEDINGS FOR LIQUIDATION ( IN RE HUMBER
IRONWORKS & SHIPBUILDING CO., IV CH. APP. CAS. 643, 646; AMERICAN IRON
& STEEL MFG. CO. V. SEABOARD AIR LINE RY., 233 U.S. 261, 266; CF.
PEOPLE V. AMERICAN LOAN & TRUST CO., 172 N.Y. 371, 379; 65 N.E. 200);
TO FACILITATE ADMINISTRATION (SEXTON V. DREYFUS, 219 U.S. 339, 344;
CHEMICAL NATIONAL BANK V. ARMSTRONG, 59 FED. 372, 378); OR BECAUSE ON
THAT DATE THE CREDITORS ACQUIRE A RIGHT IN REM AGAINST THE ASSETS IN
THE HANDS OF THE RECEIVER (CHEMICAL NATIONAL BANK V. ARMSTRONG, SUPRA,
379; MERRILL V. NATIONAL BANK OF JACKSONVILLE, 173 U.S. 131, 140;
SEXTON V. DREYFUS, SUPRA, 345) IS IMMATERIAL.  DIVIDENDS ARE PAID ON
THAT BASIS.  IT IS IN ORDER TO ASSURE EQUALITY AMONG CREDITORS AS OF
THE DATE OF INSOLVENCY THAT INTEREST ACCRUING THEREAFTER IS NOT
CONSIDERED.  BUT INTEREST IS PROPER WHERE THE IDEAL OF EQUALITY IS
SERVED, AND SO A CREDITOR WHOSE CLAIM HAS BEEN ERRONEOUSLY DISALLOWED
IS ENTITLED ON ITS ALLOWANCE TO INTEREST ON HIS DIVIDENDS FROM THE TIME
A RATABLE AMOUNT WAS PAID OTHER CREDITORS.  ARMSTRONG V. AMERICAN
EXCHANGE NATIONAL BANK, 133 U.S. 433, 470. 

THE RULE OF WHITE V. KNOX, SUPRA, DOES NOT REQUIRE THAT INTEREST BE
DENIED TO THE SECURED CREDITORS UNLESS THE PRINCIPLE OF EQUALITY OF
DISTRIBUTION IS TO BE APPLIED AS BETWEEN ALL CREDITORS.  SECURED
CREDITORS HAVE TWO SOURCES OF PAYMENT FOR THEIR CLAIMS - THE LIABILITY
OF THE DEBTOR AND THE LIABILITY OF THE PLEDGED OR MORTGAGED ASSETS. 
ONE IS PERSONAL, THE OTHER IN REM.  THE LIABILITY IN PERSONAM OF THE
BANK GIVES RISE TO A CLAIM IN REM AGAINST THE FREE ASSETS IN THE HANDS
OF THE RECEIVER; THE CLAIM IN REM AGAINST THE SECURITY CONTINUES AS A
CLAIM IN REM AGAINST THAT SAME SECURITY.  WITH RESPECT TO THE FORMER
THE SECURED CREDITORS HAVE MERELY THE SAME RIGHTS AS ANY GENERAL
CREDITOR, AND IN SO FAR AS DIVIDENDS ARE PAID TO SECURED CREDITORS FROM
FREE ASSETS, THEY SHARE RATABLY WITH THE UNSECURED CREDITORS, AND THEIR
CLAIMS BEAR INTEREST TO THE SAME DATE, THAT OF INSOLVENCY.  COMPARE
MERRILL V. NATIONAL BANK OF JACKSONVILLE, 173 U.S. AT 146; ALDRICH V.
CHEMICAL NATIONAL BANK, 176 U.S. 618, 638.  BUT TO THE EXTENT THAT ONE
DEBT IS SECURED AND ANOTHER IS NOT THERE IS MANIFESTLY AN INEQUALITY OF
RIGHTS BETWEEN THE SECURED AND UNSECURED CREDITORS, WHICH CANNOT BE
AFFECTED BY THE PRINCIPLE OF EQUALITY OF DISTRIBUTION (AMERICAN IRON &
STEEL MFG. CO. V. SEABOARD AIR LINE RY., SUPRA, AT 266; CHEMICAL
NATIONAL BANK V. ARMSTRONG, SUPRA, AT 376-377), AND INTEREST ACCRUING
AFTER INSOLVENCY MAY NOT BE WITHHELD ON ACCOUNT OF THAT PRINCIPLE. 

THE RULE AS TO THE DATE TO WHICH INTEREST IS TO BE ALLOWED ON SECURED
CLAIMS SHARING PRO RATA WITH UNSECURED CLAIMS, CANNOT APPLY TO THE
DISPOSITION OF PLEDGED OR MORTGAGED ASSETS SUBJECT TO THE LIEN OF
INDIVIDUAL CREDITORS, UNLESS WE ARE TO DISREGARD THE RIGHTS IN THESE
ASSETS PRIOR TO INSOLVENCY.  BUT "LIENS, EQUITIES OR RIGHTS ARISING
...  PRIOR TO INSOLVENCY AND NOT IN CONTEMPLATION THEREOF, ARE NOT
INVALIDATED."  SCOTT V. ARMSTRONG, 146 U.S. 499, 510; MERRILL V.
NATIONAL BANK OF JACKSONVILLE, 173 U.S. 131, 145.  BY CONTRACT OR, AS
IN THIS CASE, BY STATUTE, THE SECURED CREDITORS GAIN OR ARE GIVEN A
LIEN ON OR RIGHT IN PROPERTY "IN ADDITION TO THEIR CLAIM AGAINST THE
ESTATE OF THE BANK."  SECTION 11(K) OF THE FEDERAL RESERVE ACT AS
AMENDED.  THE STATUTORY LIEN PRIOR TO RECEIVERSHIP WITHDREW THE PLEDGED
SECURITY FROM THE ASSETS OF THE BANK AVAILABLE TO GENERAL CREDITORS, IN
SO FAR AS MIGHT BE NECESSARY TO SATISFY THE LIEN.  THOUGH TITLE TO THE
COLLATERAL WAS IN THE NAME OF THE BANK, IT WAS SUBJECT TO THIS LIEN,
AND TO THAT EXTENT THE PROPERTY PLEDGED COULD NOT PROPERLY BE SAID TO
BELONG TO THE BANK FOR PURPOSES OF DISTRIBUTION TO CREDITORS.  SCOTT V.
ARMSTRONG, SUPRA AT 510. 

AS THE OBLIGATION TO PAY INTEREST IS NOT DESTROYED BY THE INSOLVENCY
AND AS THE RIGHTS OF THE SECURED CREDITOR IN HIS COLLATERAL,
CONTRACTUAL OR STATUTORY, ARE LIKEWISE UNAFFECTED, WE ARE OF THE
OPINION THAT A SECURED CREDITOR OF A NATIONAL BANK IN RECEIVERSHIP MAY
ENFORCE HIS LIEN AGAINST HIS SECURITY, WHERE IT IS SUFFICIENT TO COVER
BOTH PRINCIPAL AND INTEREST, UNTIL HIS CLAIM FOR BOTH IS SATISFIED. 

WITH RESPECT TO ANALOGOUS LIQUIDATIONS THE RULE JUST ANNOUNCED HAS
LONG BEEN IN FORCE.  FN4 THIS COURT HAS ALREADY HELD THAT A LIENHOLDER
MAY LOOK TO HIS LIEN NOT ONLY FOR THE PRINCIPAL BUT ALSO FOR INTEREST
ACCRUING UP TO THE DATE OF PAYMENT, THOUGH HIS DEBTOR HAS GONE INTO
BANKRUPTCY (CODER V. ARTS, 213 U.S. 223, 245, AFFIRMING, 152 FED. 943,
950) OR INTO EQUITY RECEIVERSHIP (AMERICAN IRON & STEEL MFG. CO. V.
SEABOARD AIR LINE RY., 233 U.S. 261), AND THOUGH INTEREST WILL BE
DENIED THE UNSECURED CREDITORS IF THE ASSETS ARE INSUFFICIENT TO PAY
ALL CLAIMS IN FULL.  COMPARE IN RE HUMBER IRONWORKS & SHIPBUILDING CO.,
IV CH. APP. CAS. 643, WITH IN RE HUMBER IRONWORKS & SHIPBUILDING CO., V
CH. APP. CAS. 88.  THE SAME RULE WAS APPLIED TO STATE BANKS IN
WASHINGTON-ALASKA BANK V. DEXTER HORTON NATIONAL BANK, 263 FED. 304,
306. 

PETITIONERS SUGGEST THAT THE RULE JUST LAID DOWN MAY HAVE THE EFFECT
OF PENALIZING THE UNSECURED CREDITORS FOR THE PRECAUTION OF THE
RECEIVER IN LITIGATING DOUBTFUL CLAIMS ASSERTED AGAINST SEGREGATED
ASSETS.  THIS COULD BE TRUE ONLY WHERE THE INTEREST ACCRUING TO THE
SECURED CREDITORS DURING THE PENDENCY OF THE LITIGATION EXCEEDS THE
APPRECIATION IN VALUE OF, AND THE INCOME FROM, THE SECURITY.  AND SINCE
IN MANY CASES IF THE RECEIVER IS SUCCESSFUL HIS CONDUCT OF THE
LITIGATION WILL INURE TO THE ADVANTAGE OF THE GENERAL CREDITORS, THEY
MAY FAIRLY BE CHARGED WITH THE EXPENSES OF CONTESTING THE CLAIM,
INCLUDING INTEREST BY WAY OF DAMAGES.  CF. CHEMICAL NATIONAL BANK V.
ARMSTRONG, SUPRA, 59 FED. AT 384.  AFFIRMED. 

FN1  THE TOTAL UNINVESTED TRUST FUNDS ON DEPOSIT IN THE COMMERCIAL
DEPARTMENT OF THE TICONIC BANK AMOUNTED TO ABOUT $10,000 AT THE TIME OF
THE SALE OF ITS ASSETS, AND TO ABOUT $12,000 WHEN THE PEOPLES-TICONIC
BANK WAS CLOSED IN 1933. 

FN2  RICHMAN V. FIRST METHODIST EPISCOPAL CHURCH, 76 F.(2D) 344,
346(C.C.A. 3D), CERTIORARI DENIED, LONG V. FIRST METHODIST EPISCOPAL
CHURCH, 296 U.S. 593; DOUGLASS V. THURSTON COUNTY, 86 F.(2D) 899,
909(C.C.A.9TH); FASH V. FIRST NATIONAL BANK, 89 F.(2D) 110, 112(C.C.A.
10TH).    FN3  WE NEED NOT EXPLORE PETITIONER'S SUGGESTION, THAT IF
INTEREST IS GRANTED AT ALL IT SHOULD BE MEASURED FROM AN EARLIER DATE
THAN THAT OF THE JUDICIAL DEMAND CONTAINED IN THE BILL OF COMPLAINT,
SINCE RESPONDENT HAS FILED NO CROSS-PETITION FOR CERTIORARI COMPLAINING
OF THAT RESTRICTION (LANGNES V. GREEN, 282 U.S. 531, 536-538). 

FN4  COMPARE 7 VIN.  ABR.  110:  "A MORTGAGEE SHALL HAVE HIS INTEREST
RUN ON UPON A BANKRUPT'S ESTATE, BECAUSE HE HATH A RIGHT IN REM, BUT AS
TO OTHER INTEREST, IT CEASETH ON THE BANKRUPTCY.  PER LD. CHAN.  KING,
18 JULY 1729." 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



















MOOKINI V. UNITED STATES, 303 U.S. 201 


NO. 319.  ARGUED FEBRUARY 2, 1938.  - DECIDED FEBRUARY 28, 1938.  - 92
F.(2D) 126, REVERSED. 


1.  THE ACT OF MARCH 8, 1934, (28 U.S.C. 723A) EMPOWERING THIS COURT
TO PRESCRIBE RULES OF PRACTICE WITH RESPECT TO PROCEEDINGS AFTER
DETERMINATION OF GUILT IN CRIMINAL CASES IN "DISTRICT COURTS OF THE
UNITED STATES, INCLUDING THE DISTRICT COURTS OF ALASKA, HAWAII, PUERTO
RICO, CANAL ZONE AND VIRGIN ISLANDS," AND IN THE OTHER COURTS NAMED,
DOES NOT REQUIRE THAT RULES WHEN PRESCRIBED SHALL BE IDENTICAL FOR ALL
THE COURTS MENTIONED OR THAT RULES FOR ALL SHALL BE PRESCRIBED AT THE
SAME TIME.  P. 203. 

2.  IN THE RULES HERETOFORE PROMULGATED BY THIS COURT (MAY 7, 1934,
292 U.S. 661) LIMITED TO PROCEEDINGS IN CRIMINAL CASES IN "DISTRICT
COURTS OF THE UNITED STATES" AND IN THE SUPREME COURT OF THE DISTRICT
OF COLUMBIA AND SUBSEQUENT APPELLATE PROCEEDINGS, THE TERM "DISTRICT
COURTS OF THE UNITED STATES" MEANS CONSTITUTIONAL COURTS CREATED UNDER
ART. III OF THE CONSTITUTION; IT DOES NOT EMBRACE LEGISLATIVE COURTS
SUCH AS THE DISTRICT COURT FOR THE TERRITORY OF HAWAII.  P. 205. 

3.  AS THE CRIMINAL APPEALS RULES WERE NOT MADE APPLICABLE TO THE
DISTRICT COURT OF THE TERRITORY OF HAWAII, THEY DID NOT CHANGE THE TIME
FOR APPEALS FROM THAT COURT TO THE CIRCUIT COURT OF APPEALS AS ALLOWED
BY THE ACT OF FEBRUARY 13, 1925.  28 U.S.C. 225, 230.  P. 205. 

4.  THE PROVISION IN THE ORGANIC ACT OF HAWAII (48 U.S.C. 645) THAT
APPEALS FROM THE DISTRICT COURT OF THAT TERRITORY TO THE CIRCUIT COURT
OF APPEALS FOR THE NINTH CIRCUIT SHALL BE HAD "IN THE SAME MANNER AS
APPEALS ARE ALLOWED FROM DISTRICT COURTS TO CIRCUIT COURTS OF APPEAL AS
PROVIDED BY LAW," DOES NOT REQUIRE THAT THE CRIMINAL APPEALS RULES
PRESCRIBED BY THIS COURT FOR DISTRICT COURTS OF THE UNITED STATES SHALL
BE HELD APPLICABLE TO THE DISTRICT COURT OF HAWAII.  P. 205. 

MOOKINI ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 674, TO REVIEW A JUDGMENT DISMISSING AN APPEAL. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PETITIONERS WERE CONVICTED IN THE DISTRICT COURT OF THE TERRITORY OF
HAWAII OF VIOLATING SEC. 35 OF THE CRIMINAL CODE RELATING TO FRAUDULENT
CLAIMS.  18 U.S.C. 80.  THE VERDICT WAS RENDERED ON MAY 28, 1935;
MOTIONS FOR A NEW TRIAL WERE OVERRULED ON JUNE 19, 1935; AND
PETITIONERS WERE SENTENCED ON JUNE 29, 1935.  APPEAL WAS ALLOWED BY THE
DISTRICT COURT ON SEPTEMBER 27, 1935. 

THE CIRCUIT COURT OF APPEALS, FINDING THAT THE APPEAL WAS NOT TAKEN
IN THE MANNER OR WITHIN THE TIME PERMITTED BY THE CRIMINAL APPEALS
RULES PROMULGATED BY THIS COURT ON MAY 7, 1934(RULE III, 292 U.S. 662,
663), DISMISSED THE APPEAL.  92 F.(2D) 126.  IN VIEW OF THE IMPORTANCE
OF THE QUESTION AS TO THE APPLICATION OF THE CRIMINAL APPEALS RULES TO
THE DISTRICT COURT OF THE TERRITORY OF HAWAII, WE GRANTED CERTIORARI. 

IT IS NOT QUESTIONED THAT THE APPEAL TO THE CIRCUIT COURT OF APPEALS
WAS ALLOWED WITHIN THE THREE MONTHS' PERIOD SPECIFIED IN SEC. 8(C) OF
THE ACT OF FEBRUARY 13, 1925, C. 229, 43 STAT. 936, 940; 28 U.S.C. 225,
230; 48 U.S.C. 645. 

THE CRIMINAL APPEALS RULES WERE PROMULGATED PURSUANT TO THE ACT OF
MARCH 8, 1934, AMENDING THE ACT OF FEBRUARY 24, 1933.  28 U.S.C. 723A. 
THE ACT AUTHORIZED THIS COURT - 

"TO PRESCRIBE, FROM TIME TO TIME, RULES OF PRACTICE AND PROCEDURE
WITH RESPECT TO ANY AND ALL PROCEEDINGS AFTER VERDICT, OR FINDING OF
GUILT BY THE COURT IF A JURY HAS BEEN WAIVED, OR PLEA OF GUILTY, IN
CRIMINAL CASES IN DISTRICT COURTS OF THE UNITED STATES, INCLUDING THE
DISTRICT COURTS OF ALASKA, HAWAII, PUERTO RICO, CANAL ZONE, AND VIRGIN
ISLANDS, IN THE SUPREME COURTS OF THE DISTRICT OF COLUMBIA, HAWAII, AND
PUERTO RICO, IN THE UNITED STATES COURT FOR CHINA, IN THE UNITED STATES
CIRCUIT COURTS OF APPEALS, IN THE COURT OF APPEALS OF THE DISTRICT OF
COLUMBIA, AND IN THE SUPREME COURT OF THE UNITED STATES." 

IN ORDER TO AID THE COURT IN EXERCISING ITS AUTHORITY UNDER THE
STATUTE, THE ATTORNEY GENERAL OF THE UNITED STATES AT THE REQUEST OF
THE COURT SUBMITTED ON MAY 26, 1933, A DRAFT OF PROPOSED RULES.  THESE
WERE EXPRESSLY LIMITED TO PROCEEDINGS IN CASES BROUGHT IN THE DISTRICT
COURTS OF THE UNITED STATES AND IN THE SUPREME COURT OF THE DISTRICT OF
COLUMBIA.  THE REASON FOR THIS LIMITATION WAS THUS STATED BY THE
ATTORNEY GENERAL: 

"THE RULES ARE LIMITED IN THEIR APPLICATION TO PROCEEDINGS IN CASES
INSTITUTED IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE
SUPREME COURT OF THE DISTRICT OF COLUMBIA.  THERE IS NOT SUFFICIENT
DATA AT HAND UPON WHICH TO PREDICATE PROPOSALS AT THIS TIME RELATIVE TO
PRACTICE AND PROCEDURE IN CASES INSTITUTED IN THE DISTRICT COURTS OF
ALASKA, HAWAII, PUERTO RICO, CANAL ZONE, AND VIRGIN ISLANDS, OR IN THE
SUPREME COURTS OF HAWAII AND PUERTO RICO, OR IN THE UNITED STATES COURT
FOR CHINA.  IT IS THOUGHT THAT IT WOULD BE THE PART OF WISDOM TO
ESTABLISH THE RULES FOR PRACTICE AND PROCEDURE FOR CONTINENTAL UNITED
STATES BEFORE ATTEMPTING TO PROVIDE FOR THE TERRITORIES, INSULAR
POSSESSIONS AND CONSULAR COURTS, AS THESE SITUATIONS WILL UNDOUBTEDLY
REQUIRE SPECIAL TREATMENT BECAUSE OF LOCAL CONDITIONS AND THE DISTANCE
SEPARATING THE TRIAL COURT FROM THE APPELLATE COURT." 

IN CONSIDERING AND REVISING THE DRAFT THUS SUBMITTED, WE APPROVED
THIS SUGGESTION.  THE RULES WERE ACCORDINGLY LIMITED TO PROCEEDINGS - 

"IN CRIMINAL CASES IN DISTRICT COURTS OF THE UNITED STATES AND IN THE
SUPREME COURT OF THE DISTRICT OF COLUMBIA, AND IN ALL SUBSEQUENT
PROCEEDINGS IN SUCH CASES IN THE UNITED STATES CIRCUIT COURTS OF
APPEALS, IN THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA, AND IN
THE SUPREME COURT OF THE UNITED STATES."  ORDER OF MAY 7, 1934, 292
U.S. 661. 

NO PROVISION WAS MADE WITH RESPECT TO PROCEEDINGS IN CASES BROUGHT IN
THE DISTRICT COURTS OF ALASKA, HAWAII, PUERTO RICO, CANAL ZONE AND
VIRGIN ISLANDS, IN THE SUPREME COURTS OF HAWAII AND PUERTO RICO, OR IN
THE UNITED STATES COURT FOR CHINA.  WE ENTERTAIN NO DOUBT OF OUR
AUTHORITY TO LIMIT THE APPLICATION OF THE NEW RULES IN THIS WAY.  THE
STATUTE EMPOWERED THE COURT TO PRESCRIBE RULES "FROM TIME TO TIME" WITH
RESPECT "TO ANY OR ALL PROCEEDINGS," AFTER DETERMINATION OF GUILT, IN
CRIMINAL CASES IN THE COURTS WHICH WERE SEVERALLY DESCRIBED.  THE
STATUTE CONTAINS NO REQUIREMENT THAT THE COURT MUST PRESCRIBE IDENTICAL
RULES WITH RESPECT TO ALL THE COURTS MENTIONED REGARDLESS OF VARYING
CONDITIONS, OR THAT RULES FOR ALL THESE COURTS MUST BE PRESCRIBED AT
ONE AND THE SAME TIME.  ON THE CONTRARY, THE MANIFEST INTENTION OF THE
CONGRESS WAS TO PERMIT THE COURT TO EXERCISE ITS DISCRETION CONCERNING
THE APPLICATION OF THE RULES. 

THE TERM "DISTRICT COURTS OF THE UNITED STATES," AS USED IN THE
RULES, WITHOUT AN ADDITION EXPRESSING A WIDER CONNOTATION, HAS ITS
HISTORIC SIGNIFICANCE.  IT DESCRIBES THE CONSTITUTIONAL COURTS CREATED
UNDER ARTICLE III OF THE CONSTITUTION.  COURTS OF THE TERRITORIES ARE
LEGISLATIVE COURTS, PROPERLY SPEAKING, AND ARE NOT DISTRICT COURTS OF
THE UNITED STATES.  WE HAVE OFTEN HELD THAT VESTING A TERRITORIAL COURT
WITH JURISDICTION SIMILAR TO THAT VESTED IN THE DISTRICT COURTS OF THE
UNITED STATES DOES NOT MAKE IT A "DISTRICT COURT OF THE UNITED
STATES."  REYNOLDS V. UNITED STATES, 98 U.S. 145, 154, THE CITY OF
PANAMA, 101 U.S. 453, 460; IN RE MILLS, 135 U.S. 263, 268; MCALLISTER
V. UNITED STATES, 141 U.S. 174, 182, 183; STEPHENS V. CHEROKEE NATION,
174 U.S. 445, 476, 477; SUMMERS V. UNITED STATES, 231 U.S. 92, 101,
102; UNITED STATES V. BURROUGHS, 289 U.S. 159, 163.  NOT ONLY DID THE
PROMULGATING ORDER USE THE TERM DISTRICT COURTS OF THE UNITED STATES IN
ITS HISTORIC AND PROPER SENSE, BUT THE OMISSION OF PROVISION FOR THE
APPLICATION OF THE RULES TO THE TERRITORIAL COURTS AND OTHER COURTS
MENTIONED IN THE AUTHORIZING ACT CLEARLY SHOWS THE LIMITATION THAT WAS
INTENDED. 

AS THE CRIMINAL APPEALS RULES WERE NOT MADE APPLICABLE TO THE
DISTRICT COURT OF THE TERRITORY OF HAWAII, THEY DID NOT SUPERSEDE OR
ALTER THE PROVISIONS OF THE ACT OF FEBRUARY 13, 1925, AS TO APPEALS
FROM THAT COURT TO THE CIRCUIT COURT OF APPEALS.  28 U.S.C. 225, 230. 
THE PROVISION OF THE ORGANIC ACT OF HAWAII (48 U.S.C. 645) TO WHICH THE
COURT BELOW REFERS, THAT APPEALS FROM THE DISTRICT COURT OF THE
TERRITORY TO THE CIRCUIT COURT OF APPEALS SHOULD BE TAKEN IN THE SAME
MANNER AS APPEALS FROM DISTRICT COURTS, WAS ALWAYS SUBJECT TO
MODIFICATION IN THE DISCRETION OF THE CONGRESS WHICH IN ITS FUTURE
LEGISLATION COULD MAKE OR AUTHORIZE SUCH DISTINCTIONS IN APPELLATE
PROCEDURE AS APPEARED TO BE WISE.  THE ACT AUTHORIZING THIS COURT TO
PROMULGATE RULES FOR CRIMINAL APPEALS, WHICH SHOULD HAVE THE EFFECT OF
LEGISLATION NECESSARILY MODIFIED THE FORMER STATUTORY PROVISIONS SO AS
TO GIVE THE COURT FULL AUTHORITY TO PRESCRIBE THE TIME AND MANNER OF
TAKING APPEALS AND TO LEAVE THE COURT FREE TO DETERMINE TO WHAT COURTS,
WITHIN THE RANGE OF THE AUTHORIZATION, ITS RULES SHOULD APPLY. 
PURSUANT TO THIS AUTHORITY, THE COURT HAS LIMITED ITS RULES SO THAT
THEY DO NOT GOVERN APPEALS FROM THE DISTRICT COURT OF THE TERRITORY OF
HAWAII AND THERE IS NOTHING IN THE EARLIER LEGISLATION WHICH COMPELS
THE EXTENSION OF THE RULES BEYOND THEIR INTENDED AND EXPRESSED
APPLICATION. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  REVERSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :













S.W. V. OKLAHOMA, 303 U.S. 206 


NO. 560.  ARGUED FEBRUARY 7, 1938.  - DECIDED FEBRUARY 28, 1938.  -
APPEAL DISMISSED. 


UPON APPEAL FROM THE STATE CORPORATION COMMISSION, THE SUPREME COURT
OF OKLAHOMA AFFIRMED AN ORDER FIXING THE RATES OF A TELEPHONE COMPANY,
SUCH AFFIRMANCE BEING, UNDER THE STATE CONSTITUTION, A LEGISLATIVE ACT,
AND THEREFORE NOT REVIEWABLE BY APPEAL TO THIS COURT.  THE COMPANY THEN
FILED A PETITION FOR REHEARING ASKING FOR A JUDICIAL REVIEW, WHICH
PETITION WAS DENIED WITHOUT STATEMENT OF REASON.  UPON APPEAL TO THIS
COURT, THE COMPANY CONTENDED THAT THE DENIAL OF THE PETITION WAS A
JUDICIAL REVIEW, WHILE THE STATE'S ATTORNEY GENERAL INSISTED THAT THE
WHOLE PROCEEDING WAS LEGISLATIVE IN CHARACTER AND THAT ADEQUATE
JUDICIAL REVIEW COULD BE OBTAINED UNDER THE POWER OF THE STATE COURT TO
ISSUE WRITS OF MANDAMUS AND PROHIBITION TO THE COMMISSION.  HELD: 

1.  THAT, IN THE ABSENCE OF A DEFINITE DECISION TO THAT EFFECT BY THE
STATE COURT, THIS COURT CAN NOT CONCLUDE THAT THE STATE LAW PROVIDES NO
JUDICIAL REVIEW OF SUCH ORDER.  P. 212. 

2.  ASSUMING THAT THE STATE AFFORDS A JUDICIAL REMEDY, THERE IS NO
MEANS OF KNOWING WHETHER THE STATE COURT DENIED THE PETITION BECAUSE AN
APPLICATION FOR REHEARING, AFTER THE LEGISLATIVE DETERMINATION, WAS NOT
THE PROPER WAY UNDER THE STATE PRACTICE TO INVOKE THE JUDICIAL POWER,
OR WHETHER IT ENTERTAINED THE APPLICATION AND BY ITS RULING PASSED UPON
THE CONTROVERSY IN A JUDICIAL CAPACITY.  ID. 

3.  THIS COURT IS THEREFORE WITHOUT JURISDICTION TO REVIEW THE DENIAL
OF THE PETITION.  ID. 

SOUTHWESTERN BELL TELEPHONE CO. V. OKLAHOMA ET AL. 

APPEAL FROM THE SUPREME COURT OF OKLAHOMA. 

APPEAL FROM A JUDGMENT DENYING A PETITION FOR REHEARING IN THE NATURE
OF A JUDICIAL REVIEW AFTER A DECISION, 181 OKLA. 246, AFFIRMING AN
ORDER OF THE CORPORATION COMMISSION OF THE STATE FIXING RATES FOR
TELEPHONE SERVICE. 

PER CURIAM. 

MOTION TO DISMISS, FOR THE WANT OF JURISDICTION, AN APPEAL FROM A
DETERMINATION OF THE SUPREME COURT OF OKLAHOMA, MADE SEPTEMBER 14,
1937, DENYING A "PETITION FOR REHEARING IN THE NATURE OF JUDICIAL
REVIEW" AFTER A DECISION AFFIRMING AN ORDER OF THE CORPORATION
COMMISSION OF THE STATE FIXING RATES FOR TELEPHONE SERVICE.  THE MOTION
IS UPON THE GROUND THAT THE PROCEEDING IN THE STATE COURT WAS
LEGISLATIVE AND WAS NOT A SUIT WITHIN THE MEANING OF SEC. 237 OF THE
JUDICIAL CODE (28 U.S.C. 344) GOVERNING OUR APPELLATE JURISDICTION. 

THE CONSTITUTION OF OKLAHOMA AUTHORIZES THE CORPORATION COMMISSION TO
PRESCRIBE RATES "FOR TRANSPORTATION AND TRANSMISSION COMPANIES."  ART.
IX, SEC. 18.  APPELLANT, OPERATING TELEPHONE LINES, IS A "TRANSMISSION
COMPANY."  ART. IX, SEC. 34.  APPEALS FROM THE COMMISSION MAY BE TAKEN
ONLY TO THE SUPREME COURT OF THE STATE.  ART. IX, SEC. 20.  NO COURT OF
THE STATE, OTHER THAN THE SUPREME COURT BY WAY OF APPEAL, HAS
JURISDICTION "TO REVIEW, REVERSE, CORRECT, OR ANNUL" ANY ACTION OF THE
COMMISSION WITHIN THE SCOPE OF ITS AUTHORITY, SAVE THAT WRITS OF
MANDAMUS AND PROHIBITION WILL LIE FROM THE SUPREME COURT TO THE
COMMISSION "IN ALL CASES WHERE SUCH WRITS, RESPECTIVELY, WOULD LIE TO
ANY INFERIOR COURT OR OFFICER."  ID.  IN CASE OF APPEAL, NO NEW OR
ADDITIONAL EVIDENCE MAY BE INTRODUCED IN THE SUPREME COURT, BUT THE
SUPREME COURT HAS JURISDICTION TO CONSIDER AND DETERMINE "THE
REASONABLENESS AND JUSTNESS OF THE ACTION OF THE COMMISSION APPEALED
FROM, AS WELL AS ANY OTHER MATTER ARISING UNDER SUCH APPEAL."  THE
ACTION OF THE COMMISSION IS TO BE REGARDED "AS PRIMA FACIE JUST,
REASONABLE, AND CORRECT," BUT THE COURT MAY, WHEN IT DEEMS NECESSARY IN
THE INTERESTS OF JUSTICE, REMAND TO THE COMMISSION ANY CASE PENDING ON
APPEAL "AND REQUIRE THE SAME TO BE FURTHER INVESTIGATED BY THE
COMMISSION, AND REPORTED UPON TO THE COURT (TOGETHER WITH A CERTIFICATE
OF SUCH ADDITIONAL EVIDENCE AS MAY BE TENDERED BEFORE THE COMMISSION BY
ANY PARTY IN INTEREST), BEFORE THE APPEAL IS FINALLY DECIDED."  ART.
IX.  SEC. 22. 


"WHENEVER THE COURT, UPON APPEAL, SHALL REVERSE AN ORDER OF THE
COMMISSION AFFECTING THE RATES, CHARGES, OR THE CLASSIFICATIONS OF
TRAFFIC OF ANY TRANSPORTATION OR TRANSMISSION COMPANY, IT SHALL, AT THE
SAME TIME, SUBSTITUTE THEREFOR SUCH ORDERS AS, IN ITS OPINION, THE
COMMISSION SHOULD HAVE MADE AT THE TIME OF ENTERING THE ORDER APPEALED
FROM; OTHERWISE THE REVERSAL ORDER SHALL NOT BE VALID.  SUCH
SUBSTITUTED ORDER SHALL HAVE THE SAME FORCE AND EFFECT (AND NONE OTHER)
AS IF IT HAD BEEN ENTERED BY THE COMMISSION AT THE TIME THE ORIGINAL
ORDER APPEALED FROM WAS ENTERED." 

IN THE INSTANT CASE, THE CORPORATION COMMISSION ON MARCH 18, 1935,
AFTER HEARING, MADE ITS ORDER FIXING APPELLANT'S RATES (OKLA. CORP.
COM. REP., 1935, P. 558), AND ON APPEAL THE SUPREME COURT OF THE STATE,
ON JULY 13, 1937, AFFIRMED THE ORDER.  181 OKLA. 246; 71 P.2D 747. 

APPELLANT CONCEDES THAT THIS DECISION WAS LEGISLATIVE IN CHARACTER,
IN VIEW OF THE AUTHORITY CONFERRED BY THE ABOVE-QUOTED PROVISION OF
SEC. 23 OF ARTICLE IX AND ITS CONSTRUCTION BY THE STATE COURT.  SEE
PIONEER TELEPHONE & TELEGRAPH CO. V. STATE, 40 OKLA. 417, 425, 426; 138
PAC. 1033; SWAIN V. OKLAHOMA RAILWAY CO., 168 OKLA. 133, 134-136; 32
P.2D.  51; OKLAHOMA COTTON GINNERS' ASSN. V. STATE, 174 OKLA. 243, 248,
251; 51 P.2D 327.  COMPARE PRENTIS V. ATLANTIC COAST LINE CO., 211 U.S.
210, 226, 227; OKLAHOMA NATURAL GAS CO. V. RUSSELL, 261 U.S. 290, 291. 
BUT APPELLANT CONTENDS THAT THE SUPREME COURT OF THE STATE "COMPLETED
ITS LEGISLATIVE REVIEW AND FUNCTION BY THE FILING OF ITS OPINION OF
JULY 13, 1937," AND THAT APPELLANT WAS THEN FREE TO INVOKE THE
JURISDICTION OF THE COURT TO EXERCISE ITS JUDICIAL POWER AND FUNCTION
BY AN APPLICATION FOR "A JUDICIAL REVIEW."  THIS, APPELLANT STATES, WAS
THE PURPOSE OF ITS PETITION FOR REHEARING. 

IN SUPPORT OF THAT PETITION, APPELLANT URGED UPON THE SUPREME COURT
OF THE STATE THE CONSIDERATION OF THE PROVISIONS OF THE STATE
CONSTITUTION WITH RESPECT TO THE VESTING OF JUDICIAL POWER AND THE
APPELLATE JURISDICTION OF THE COURT (ART. VII, SECS. 1 AND 2); OF THE
BILL OF RIGHTS GUARANTEEING A JUDICIAL REMEDY FOR EVERY INJURY (ART.
II, SEC. 6); OF SEC. 22 OF ARTICLE IX PROVIDING THAT, ON APPEALS TO THE
SUPREME COURT FROM THE CORPORATION COMMISSION, THAT COURT SHOULD HAVE
JURISDICTION TO DETERMINE "THE REASONABLENESS AND JUSTNESS" OF THE
ACTION OF THE COMMISSION "AS WELL AS ANY OTHER MATTER" ARISING ON THE
APPEAL; AND OF SEC. 34 OF ARTICLE IX THAT THE PROVISIONS OF THAT
ARTICLE SHOULD "ALWAYS BE SO RESTRICTED IN THEIR APPLICATION AS NOT TO
CONFLICT WITH ANY OF THE PROVISIONS OF THE CONSTITUTION OF THE UNITED
STATES, AND AS IF THE NECESSARY LIMITATIONS UPON THEIR INTERPRETATION
HAD BEEN HEREIN EXPRESSED IN EACH CASE."  IN CONCLUDING THE SUBMISSION
OF ITS PETITION FOR REHEARING APPELLANT INSISTED THAT THE SUPREME COURT
OF THE STATE "NOT ONLY HAS THE POWER, RIGHT, JURISDICTION AND
AUTHORITY, NOW TO REVIEW THIS CASE JUDICIALLY, WHICH RIGHT, POWER,
JURISDICTION AND AUTHORITY IT HAS NOT HERETOFORE POSSESSED, BUT THAT IT
IS THE DUTY OF THIS COURT TO DO SO AT THIS STAGE OF THE PROCEEDING, IN
ORDER THAT APPELLANT MAY HAVE THE LEGISLATIVE ORDER OR ENACTMENT FIXING
ITS RATES FOR FUTURE APPLICATION AT TULSA REVIEWED BY AN APPROPRIATE
FEDERAL COURT WITH THE LEAST POSSIBLE DELAY AND COST, IF SUCH SHOULD
LATER BE FOUND NECESSARY, RESULTING FROM AN ADVERSE DECISION BY THIS
(THE STATE) COURT." 

THE RULING OF THE STATE COURT WAS EXPRESSED IN THE FOLLOWING JOURNAL
ENTRY: 

"NOW ON THIS 14TH DAY OF SEPTEMBER 1937, THE COURT HAVING CONSIDERED
APPELLANT'S PETITION FOR REHEARING IN THE NATURE OF JUDICIAL REVIEW,
DOTH OVERRULE AND DENY SAME, TO WHICH APPELLANT IS ALLOWED EXCEPTION." 

AT APPELLANT'S REQUEST, THE STATE COURT GRANTED SUPERSEDEAS AND
STAYED ITS MANDATE PENDING APPELLANT'S APPLICATION FOR THE ALLOWANCE OF
AN APPEAL TO THIS COURT AND THE DETERMINATION OF THE APPEAL IF TAKEN. 
AN APPEAL WAS THEN ALLOWED BY THE CHIEF JUSTICE OF THE STATE COURT AND
THE CASE IS THUS BROUGHT HERE. 

THE ATTORNEY GENERAL OF THE STATE, MOVING TO DISMISS THE APPEAL,
INSISTS THAT APPELLANT'S CONTENTION THAT THE ACTION OF THE STATE COURT
IN DENYING THE PETITION FOR REHEARING "WAS A JUDICIAL REVIEW, IS WHOLLY
ERRONEOUS"; THAT THE APPEAL IS "FROM A PURELY LEGISLATIVE CONSIDERATION
OF THE QUESTIONS INVOLVED."  THE SUBSTANCE OF THE ATTORNEY GENERAL'S
ARGUMENT IS SHOWN IN THE FOLLOWING STATEMENT: 

"THIS PETITION FOR REHEARING  ...  WAS NOT SUFFICIENT TO CONFER, UPON
THE SUPREME COURT OF OKLAHOMA, JURISDICTION AND POWER TO TREAT THE
RECORD THEN BEFORE IT AS A NEW CAUSE INVOLVING A JUDICIAL REVIEW, AND
NO RECORD WAS BEFORE SAID COURT WARRANTING SAID COURT TO TREAT SAME AS
A JUDICIAL APPEAL, NOR WAS THE SAID RECORD, NOR ITS CONTENTS, TREATED
AS SUCH BY APPELLANT, NOR THE COURT, AND NO JUDICIAL ISSUES WERE RAISED
IN SAID LEGISLATIVE REVIEW.  IT IS NOT THE RULE TO PERMIT THE CHARACTER
OF CONTROVERSIES TO BE COMPLETELY CHANGED, EITHER IN FORM OR SUBSTANCE,
AFTER THE OPINION OF A COURT HAS BEEN HANDED DOWN, AND THIS IS
ESPECIALLY TRUE WHEN THE SAME IS SOUGHT TO BE ACCOMPLISHED, FOR THE
FIRST TIME BY A SO-CALLED PETITION FOR REHEARING IN WHICH THE ONLY
SUBJECT MENTIONED WAS THE REQUEST FOR A JUDICIAL REVIEW FOR THE FIRST
TIME IN THE HISTORY OF THE CASE." 

THE ATTORNEY GENERAL, HOWEVER, DOES NOT CONCEDE THAT THE STATE OF
OKLAHOMA "DOES NOT FURNISH AN ADEQUATE JUDICIAL REVIEW OF QUESTIONS
SUCH AS ARE INVOLVED IN THIS PROPOSED APPEAL."  ON THE CONTRARY, "THE
STATE ASSERTS THAT APPELLANT HAS, AND HAS HAD, AN ADEQUATE METHOD OF
RELIEF."  WHEN PRESSED UPON THE ARGUMENT AT BAR TO STATE WHAT JUDICIAL
REMEDY WAS OPEN TO APPELLANT UNDER THE STATE CONSTITUTION, THE ATTORNEY
GENERAL REFERRED TO THE POWER CONFERRED UPON THE SUPREME COURT BY THE
PROVISO IN SEC. 20 OF ARTICLE IX TO ISSUE WRITS OF MANDAMUS AND
PROHIBITION TO THE COMMISSION.  NO DECISION OF THE STATE COURT AS TO
THE QUESTIONS WHICH WOULD BE OPEN UPON AN APPLICATION FOR SUCH A WRIT
HAS BEEN BROUGHT TO OUR ATTENTION. 

APPELLANT STATES THAT THE QUESTION NOW PRESENTED IS ONE OF FIRST
IMPRESSION; THAT THE ACTION OF THE STATE COURT IN THIS CASE
"CONSTITUTES THE FIRST CONSTRUING OF THIS (THE PRESENT) PROCEDURE WHICH
THAT COURT HAS EVER MADE.  THERE ARE NO SPECIFIC PRECEDENTS." 

THE NOVELTY OF THE PROCEDURE, AND THE LACK OF EXPOSITION IN THE BRIEF
RULING, LEAVE US IN DOUBT AS TO THE TRUE IMPORT OF THE DENIAL OF THE
PETITION FOR REHEARING.  IN VIEW OF THE SERIOUS QUESTIONS WHICH WOULD
BE RAISED IF IT WERE DETERMINED THAT THE STATE PROVIDES NO MEANS OF
OBTAINING A JUDICIAL REVIEW OF AN ORDER OF THE COMMISSION FIXING RATES,
ALLEGED TO BE CONFISCATORY, IN THE CASE OF A TRANSPORTATION OR
TRANSMISSION COMPANY, WE SHOULD NOT REACH SUCH A CONCLUSION IN THE
ABSENCE OF A DEFINITE DECISION BY THE STATE COURT TO THAT EFFECT. 
NEITHER PARTY BEFORE US ADVANCES A CONTENTION THAT THERE IS SUCH A LACK
OF JUDICIAL REMEDY.  APPELLANT SAYS THAT JUDICIAL REVIEW IS AVAILABLE
THROUGH THE PROCEDURE APPELLANT HAS CHOSEN AND THAT THE DENIAL OF ITS
PETITION FOR REHEARING WAS JUDICIAL ACTION.  THE ATTORNEY GENERAL
ASSERTS THE CONTRARY, CONTENDING THAT JUDICIAL REMEDY EXISTS BUT MUST
BE SOUGHT IN ANOTHER MANNER.  BUT - ASSUMING THAT THE STATE AFFORDS A
JUDICIAL REMEDY - WHETHER THE STATE COURT HAS DENIED APPELLANT'S
PETITION BECAUSE AN APPLICATION FOR REHEARING AFTER WHAT IS CONCEDED BY
BOTH PARTIES TO BE A LEGISLATIVE DETERMINATION WAS NOT THE PROPER WAY
UNDER THE STATE PRACTICE TO INVOKE THE JUDICIAL POWER, OR HAS
ENTERTAINED THE APPLICATION AND BY ITS RULING HAS PASSED UPON THE
CONTROVERSY IN A JUDICIAL CAPACITY, WE HAVE NO MEANS OF KNOWING. 

WE HAVE REPEATEDLY HELD THAT IT IS ESSENTIAL TO THE JURISDICTION OF
THIS COURT IN REVIEWING A DECISION OF A COURT OF A STATE THAT IT MUST
APPEAR AFFIRMATIVELY FROM THE RECORD, NOT ONLY THAT A FEDERAL QUESTION
WAS PRESENTED FOR DECISION TO THE HIGHEST COURT OF THE STATE HAVING
JURISDICTION BUT THAT ITS DECISION OF THE FEDERAL QUESTION WAS
NECESSARY TO THE DETERMINATION OF THE CAUSE; THAT THE FEDERAL QUESTION
WAS ACTUALLY DECIDED OR THAT THE JUDGMENT AS RENDERED COULD NOT HAVE
BEEN GIVEN WITHOUT DECIDING IT.  DE SAUSSURE V. GAILLARD, 127 U.S. 216,
234; JOHNSON V. RISK, 137 U.S. 300, 306, 307; WOOD MOWING & REAPING
MACHINE CO. V. SKINNER, 139 U.S. 293, 295, 297; WHITNEY V. CALIFORNIA,
274 U.S. 357, 360, 361; LYNCH V. NEW YORK, 293 U.S. 52, 54. 

APPLYING THIS RULE, THE MOTION TO DISMISS MUST BE GRANTED. 
DISMISSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :






CENTURY INDEMNITY CO. V. NELSON, 303 U.S. 213 


NO. 362.  ARGUED FEBRUARY 2, 1938.  - DECIDED FEBRUARY 28, 1938.  - 90
F.(2D) 644, REVERSED. 


AFTER THE SUBMISSION OF A LAW CASE TRIED WITHOUT A JURY, THE DISTRICT
COURT ORDERED "THAT JUDGMENT BE ENTERED FOR PLAINTIFF  ...  UPON
FINDINGS OF FACTS AND CONCLUSIONS OF LAW TO BE PRESENTED."  THEREAFTER,
IN ACCORDANCE WITH A RULE OF THE COURT, SPECIAL FINDINGS OF FACT AND
CONCLUSIONS OF LAW WERE PROPOSED BY EACH SIDE; THOSE OFFERED BY THE
PLAINTIFF WERE ADOPTED BY THE JUDGE AND FORMAL JUDGMENT WAS ORDERED AND
ENTERED.  HELD THAT THE FIRST ORDER WAS PRELIMINARY; THAT REJECTIONS OF
DEFENDANT'S PROPOSED FINDINGS WERE RULINGS MADE "IN THE PROGRESS OF THE
TRIAL," WITHIN THE MEANING OF 28 U.S.C. SEC. 875, AND REVIEWABLE BY THE
CIRCUIT COURT OF APPEALS.  P. 215. 

CENTURY INDEMNITY CO. V. NELSON. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 674, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT IN AN ACTION AT LAW TRIED WITHOUT A JURY. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THIS CAUSE WENT UP BY APPEAL FROM THE DISTRICT COURT, NORTHERN
DISTRICT, CALIFORNIA.  OF THE TWENTY-EIGHT ASSIGNMENTS OF ERROR,
ELEVEN, BASED UPON THE TRIAL COURT'S REFUSAL OF CERTAIN REQUESTED
SPECIAL FINDINGS, WERE REJECTED BY THE CIRCUIT COURT OF APPEALS.  IT
HELD THE REQUESTS "WERE MADE TOO LATE," THAT "THE FINDINGS WERE
PROPOSED AFTER THE TRIAL HAD BEEN COMPLETED AND AFTER THE COURT HAD
ANNOUNCED ITS DECISION AND HENCE DID NOT OCCUR DURING THE TRIAL."  TO
SUPPORT THIS VIEW IT CITED CONTINENTAL NATIONAL BANK V. NATIONAL CITY
BANK, (9TH CIR.) 69 F.(2D) 312, 317, WHICH AFFIRMS - "IT IS SETTLED
THAT THEY (REQUESTS FOR FINDINGS) CAME TOO LATE IF MADE AFTER JUDGMENT
EVEN THOUGH THE TRIAL JUDGE, AFTER JUDGMENT, GRANTED LEAVE TO MAKE THE
REQUEST." 

A JURY HAVING BEEN DULY WAIVED, THE TRIAL JUDGE HEARD EVIDENCE.  AT
THE CONCLUSION OF THIS COUNSEL FOR BOTH SIDES MADE MOTIONS FOR JUDGMENT
AND FINDINGS.  THE MINUTES OF MAY 31, 1934, SHOW - "THIS CASE HAVING
BEEN HERETOFORE HEARD AND SUBMITTED AND DUE CONSIDERATION HAVING BEEN
HAD, IT IS ORDERED THAT JUDGMENT BE ENTERED FOR PLAINTIFF, WITH
INTEREST AND COSTS, UPON FINDINGS OF FACTS AND CONCLUSIONS OF LAW TO BE
PRESENTED." 

THE BILL OF EXCEPTIONS RECITES - "THEREAFTER, (AFTER REQUESTS FOR
JUDGMENT AND FINDINGS) THE CASE WAS ORALLY ARGUED BEFORE THE COURT AND
WAS SUBMITTED UPON WRITTEN BRIEFS.  THEREAFTER AND ON JUNE 1, 1934,
(MAY 31 ?)  AND OUTSIDE THE PRESENCE OF THE PARTIES, THE COURT MADE AND
ENTERED ITS ORDER GRANTING JUDGMENT TO THE PLAINTIFF WITH FINDINGS TO
BE SUBMITTED.  THEREAFTER PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW WERE SERVED AND LODGED WITH THE COURT BY PLAINTIFF, AND WITHIN THE
TIME ALLOWED BY LAW THE DEFENDANT SERVED AND LODGED ITS PROPOSED
SPECIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW IN LIEU OF THOSE
PROPOSED BY THE PLAINTIFF. 

"THEREAFTER AND ON JUNE 16, 1934, THE COURT, WITHOUT THE PRESENCE OF
THE PARTIES, SIGNED THE PROPOSED SPECIAL FINDINGS OF FACT AND
CONCLUSIONS OF LAW OF THE PLAINTIFF AND FILED SAME ON SAID DATE AS THE
FINDINGS AND CONCLUSIONS OF THE COURT, AND JUDGMENT WAS ENTERED ON SAID
JUNE 16, 1934." 

JUNE 16, 1934, "SPECIAL FINDINGS AND CONCLUSIONS OF LAW" PRESENTED
FOR PLAINTIFF NELSON WERE SIGNED BY THE DISTRICT COURT AND WERE FILED. 
THE DOCUMENT CONCLUDED THUS - 

"FROM THE FOREGOING FINDINGS OF FACT THE COURT CONCLUDES THAT
JUDGMENT SHOULD BE ENTERED IN FAVOR OF THE PLAINTIFF AND AGAINST THE
DEFENDANT IN THE SUM OF SIX THOUSAND ($6000.00) DOLLARS TOGETHER WITH
INTEREST THEREON AT THE LEGAL RATE OF SEVEN PER CENT (7%) PER ANNUM
FROM THE DATE OF THE COMMENCEMENT OF THIS ACTION, TO-WIT:  SEPTEMBER
24, 1931, TOGETHER WITH PLAINTIFF'S COSTS OF SUIT INCURRED HEREIN, AND
THAT UPON SATISFACTION OF SAID JUDGMENT THE CLERK OF THIS COURT SHOULD
DELIVER TO THE DEFENDANT THE ASSIGNMENT BY PLAINTIFF AGAINST THE SAN
FRANCISCO IRON & METAL COMPANY, A CORPORATION IN BANKRUPTCY. 

"LET JUDGMENT BE ENTERED ACCORDINGLY." 

SEC. 875, TITLE 28, U.S.C.A., IS IN THE MARGIN; FN1  ALSO RULE 42,
DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA.  FN2 

WE ARE UNABLE TO ACCEPT THE CONCLUSION BELOW THAT WITHIN THE INTENT
OF THE STATUTE THE "PROGRESS OF THE TRIAL" ENDED ON JUNE 1, WHEN THE
COURT ORDERED "THAT JUDGMENT BE ENTERED FOR PLAINTIFF, WITH INTEREST
AND COSTS, UPON FINDINGS OF FACT AND CONCLUSIONS OF LAW TO BE
PRESENTED," AND THEREAFTER IT WAS TOO LATE ADEQUATELY TO PRESENT
SPECIAL FINDINGS OF FACT.  THE QUALIFYING WORDS IN THE ORDER "UPON
FINDINGS OF FACT AND CONCLUSIONS OF LAW TO BE PRESENTED" ARE
APPROPRIATE TO SUGGEST "MERELY A PRELIMINARY ORDER" AND RESERVATION OF
OPPORTUNITY FOR FURTHER ACTION.  CONSIDERING THEM ALONG WITH RULE 42
AND THE SUBSEQUENT ACTION BY COUNSEL FOR BOTH SIDES AND THE COURT - ALL
WITHOUT SUGGESTION OF OBJECTION - IT APPEARS PLAIN ENOUGH THAT ALL
PARTIES UNDERSTOOD THE CAUSE WAS "IN PROGRESS OF TRIAL" UNTIL ENTRY OF
THE FINAL JUDGMENT ON JUNE 16.  RULE 42 IS SUSCEPTIBLE OF THE
INTERPRETATION INSISTED UPON BY COUNSEL FOR PETITIONER AND APPARENTLY
THEY PROCEEDED IN GOOD FAITH ACCORDING TO THAT VIEW.  IN SO DOING, WE
THINK THEY WERE RIGHT.  SEE CLEMENT V. PHOENIX INS. CO., FED. CASES
2,882. 

CONTINENTAL NATIONAL BANK V. NATIONAL CITY BANK DOES NOT DISCUSS RULE
42 AND WENT UPON FACTS WHICH SEEM MATERIALLY DIFFERENT FROM THOSE
PRESENTED BY THIS RECORD. 

REFUSAL TO CONSIDER THE ELEVEN ASSIGNMENTS OF ERROR AROSE FROM WHAT
WE REGARD AS WRONGFUL INTERPRETATION AND APPLICATION OF SEC. 875 AND
RULE 42.  THEIR EVIDENT PURPOSE IS TO INSURE ORDERLY AND TIMELY
PRESENTATION TO THE JUDGE OF MATTERS DEEMED IMPORTANT IN ADVANCE OF ANY
DEFINITE ACTION BY HIM IN RESPECT OF THEM.  THEY SHOULD NOT BE SO
NARROWLY CONSTRUED AS TO DEFEAT THEIR REAL PURPOSE. 

IT IS NOT NECESSARY IN THE CIRCUMSTANCES TO TREAT THE FIRST ORDER FOR
JUDGMENT (JUNE 1) AS ENDING "THE PROGRESS OF THE TRIAL."  ALL COUNSEL
AND THE PRESIDING JUDGE SEEM, RIGHTLY WE THINK, TO HAVE ENTERTAINED A
WHOLLY DIFFERENT VIEW AND TO HAVE ACTED ACCORDINGLY. 

THE CHALLENGED JUDGMENT MUST BE REVERSED.  THE CAUSE WILL BE REMANDED
TO THE CIRCUIT COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.  REVERSED. 

FN1  SECTION 875, TITLE 28, U.S.C.A. 

REVIEW IN CASES TRIED WITHOUT JURY.  WHEN AN ISSUE OF FACT IN ANY
CIVIL CAUSE IN A DISTRICT COURT IS TRIED AND DETERMINED BY THE COURT
WITHOUT THE INTERVENTION OF A JURY, ACCORDING TO SECTION 773 OF THIS
TITLE, THE RULINGS OF THE COURT IN THE PROGRESS OF THE TRIAL OF THE
CAUSE, IF EXCEPTED TO AT THE TIME, AND DULY PRESENTED BY A BILL OF
EXCEPTIONS, MAY BE REVIEWED UPON A WRIT OF ERROR OR UPON APPEAL; AND
WHEN THE FINDING IS SPECIAL THE REVIEW MAY EXTEND TO THE DETERMINATION
OF THE SUFFICIENCY OF THE FACTS FOUND TO SUPPORT THE JUDGMENT. 

FN2  RULE 42, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF
CALIFORNIA. 

FINDINGS  ...  IN ACTIONS AT LAW, WHERE A REQUEST FOR SPECIAL
FINDINGS OF FACT IS MADE AND GRANTED, AND IN SUITS IN EQUITY, NO
JUDGMENT SHALL BE ENTERED UNTIL THE FINDINGS AND, IN AN EQUITY SUIT,
THE CONCLUSIONS OF LAW, SHALL HAVE BEEN SIGNED AND FILED OR WAIVED AS
HEREINAFTER PROVIDED; BUT THE RENDITION OF THE DECISION OR OPINION
SHALL BE DEEMED AND CONSIDERED, AND SHALL BE ENTERED BY THE CLERK, AS
MERELY A PRELIMINARY ORDER FOR JUDGMENT.  WITHIN FIVE DAYS AFTER
WRITTEN NOTICE OF THE DECISION, THE PREVAILING PARTY SHALL PREPARE A
DRAFT OF THE FINDINGS AND, IN AN EQUITY SUIT, OF THE CONCLUSIONS OF
LAW, AND DELIVER THE SAME TO THE CLERK FOR THE JUDGE AND SERVE A COPY
THEREOF UPON THE ADVERSE PARTY, WHO MAY, WITHIN FIVE DAYS THEREAFTER,
DELIVER TO THE CLERK AND SERVE UPON THE ADVERSE PARTY SUCH PROPOSED
AMENDMENTS OR ADDITIONS AS HE MAY DESIRE. 

IF THE PREVAILING PARTY FAILS TO PRESENT SUCH DRAFT AS ABOVE
PROVIDED, THE ADVERSE PARTY MAY PREPARE A DRAFT THEREOF AND DELIVER THE
SAME TO THE CLERK FOR THE JUDGE AND SERVE A COPY THEREOF ON THE
PREVAILING PARTY WITHIN FIVE DAYS THEREAFTER. 

THE FINDINGS OF FACT AND, WHERE REQUIRED, THE CONCLUSIONS OF LAW,
SHALL THEREAFTER BE SETTLED BY THE JUDGE, AND WHEN SO SETTLED SHALL BE
ENGROSSED WITHIN FIVE DAYS THEREAFTER, AND SHALL BE THEN SIGNED AND
FILED.  A FAILURE TO COMPLY WITH THE REQUIREMENTS OF THIS RULE MAY BE
DEEMED TO BE A WAIVER OF FINDINGS BY THE PARTY SO FAILING. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






















HELVERING V. THERRELL, 303 U.S. 218 


NO. 128.  ARGUED DECEMBER 17, 1937.  - DECIDED FEBRUARY 28, 1938.  - 88
F.(2D) 869, AND ID. 873, REVERSED.  - 89 ID. 699, AFFIRMED.  - 92 ID.
150, REVERSED. 


THE COMPENSATION RECEIVED (1) BY A LIQUIDATOR APPOINTED BY THE STATE
COMPTROLLER TO WIND UP INSOLVENT BANKS PURSUANT TO FLORIDA STATUTES;
(2) BY LEGAL COUNSEL EMPLOYED BY THE INSURANCE DEPARTMENT OF NEW YORK
FOR SERVICES IN LIQUIDATING INSOLVENT INSURANCE COMPANIES TAKEN OVER BY
THE STATE SUPERINTENDENT OF INSURANCE, PURSUANT TO NEW YORK STATUTES;
(3) BY AN ATTORNEY IN THE DEPARTMENT OF JUSTICE OF PENNSYLVANIA
ASSIGNED BY THE ATTORNEY GENERAL FOR LEGAL WORK RELATING TO WINDING UP
OF INSOLVENT BANKS TAKEN OVER BY THE STATE SECRETARY OF BANKING
PURSUANT TO PENNSYLVANIA STATUTES.  HELD (P. 222) SUBJECT TO INCOME
TAXATION BY THE FEDERAL GOVERNMENT, IT APPEARING: 

1.  THAT THE COMPENSATION IN EACH INSTANCE WAS PAID FROM THE ASSETS
OF THE LIQUIDATING CORPORATION, NOT FROM FUNDS BELONGING TO THE STATE; 

2.  THAT NO ONE OF THE TAXPAYERS WAS AN OFFICER OF THE STATE IN THE
STRICT SENSE OF THAT TERM; 

3.  THAT THE BUSINESSES ABOUT WHICH THEY WERE EMPLOYED WERE NOT
UTILIZED BY THE STATES IN THE DISCHARGE OF THEIR ESSENTIAL GOVERNMENTAL
DUTIES; 

4.  THAT THE CORPORATIONS WERE PRIVATE ENTERPRISES, AND THEIR FUNDS
PRIVATE PROPERTY. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. THERRELL.* 

*TOGETHER WITH NO. 129, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. TUNNICLIFFE, ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
FIFTH CIRCUIT; NO. 287, MCLOUGHLIN V. COMMISSIONER OF INTERNAL REVENUE,
ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT;
AND NO. 597, HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. FREEDMAN,
ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI TO REVIEW DECISIONS OF CIRCUIT COURTS OF APPEALS IN FOUR
CASES ON APPEALS FROM DECISIONS OF THE BOARD OF TAX APPEALS SUSTAINING
INCOME TAX ASSESSMENTS.  IN NOS. 128, 129 AND 597(34 B.T.A. 956) THE
BOARD'S RULING WAS REVERSED BY THE LOWER COURT; IN NO. 287, THE BOARD'S
RULING, 34 B.T.A. 963, WAS AFFIRMED. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

HAS THE FEDERAL GOVERNMENT POWER TO TAX COMPENSATION PAID TO
ATTORNEYS AND OTHERS OUT OF CORPORATE ASSETS FOR NECESSARY SERVICES
RENDERED ABOUT THE LIQUIDATION OF AN INSOLVENT CORPORATION BY A STATE
OFFICER PROCEEDING AS REQUIRED BY HER STATUTES? 

THE OPINIONS BELOW STATE THE ESSENTIAL FACTS - NOT IN DISPUTE; MAKE
ADEQUATE REFERENCES TO THE RELEVANT STATUTORY PROVISIONS; AND CITE
NUMEROUS AUTHORITIES. 

NO. 128. 

UNDER FLORIDA STATUTES WHEN A BANK BECOMES INSOLVENT "THE STATE
COMPTROLLER MAY APPOINT A LIQUIDATOR (SUBJECT TO DISMISSAL) TO TAKE
CHARGE OF THE ASSETS AND AFFAIRS OF SUCH BANK  ... (WHO,) UNDER THE
DIRECTION AND SUPERVISION OF THE COMPTROLLER, SHALL TAKE POSSESSION OF
THE BOOKS AND RECORDS AND ASSETS OF EVERY DESCRIPTION  ...  AND IN HIS
NAME SHALL SUE FOR AND COLLECT ALL DEBTS AND CLAIMS BELONGING TO IT,
AND UPON THE ORDER OF THE COURT OF COMPETENT JURISDICTION MAY SELL OR
COMPOUND ALL BAD OR DOUBTFUL DEBTS AND ON LIKE ORDER MAY SELL ALL REAL
AND PERSONAL PROPERTY  ...  AND SUE FOR AND ENFORCE THE INDIVIDUAL
LIABILITY OF THE STOCKHOLDERS."  HE SHALL "PAY ALL MONEY RECEIVED BY
HIM TO THE STATE TREASURER TO BE HELD AS A SPECIAL DEPOSIT  ...  SHALL
MAKE QUARTERLY REPORTS, OR WHEN CALLED UPON, TO THE COMPTROLLER."  THE
APPOINTMENT MUST FOLLOW NOTICE AND BE CONFIRMED BY THE CIRCUIT COURT. 
LIQUIDATION EXPENSES ARE PAYABLE OUT OF THE CORPORATE FUNDS HELD BY THE
TREASURER.  "THE COMPENSATION OF THE LIQUIDATOR SHALL BE FIXED BY THE
COMPTROLLER AND SHALL BE BASED UPON THE AMOUNT OF WORK ACTUALLY AND
NECESSARILY PERFORMED, AND SHALL IN NO CASE EXCEED FIVE PER CENT OF THE
CASH COLLECTED." 

RESPONDENT THERRELL, LIQUIDATOR FOR SEVERAL BANKS, DEVOTED
SUBSTANTIALLY ALL HIS TIME TO THE WORK.  HE HELD NO COMMISSION FROM THE
GOVERNOR, TOOK NO OATH OF OFFICE BUT WAS FORMALLY APPOINTED BY THE
COMPTROLLER AND GAVE BOND.  HIS COMPENSATION, FOR 1931 AND 1932, PAID
FROM CORPORATE ASSETS, WAS ASSESSED BY THE COMMISSIONER FOR FEDERAL
INCOME TAXES.  THE BOARD OF TAX APPEALS APPROVED; BUT THE CIRCUIT COURT
OF APPEALS FOUND IMMUNITY UNDER THE FEDERAL CONSTITUTION.  THERRELL V.
COMMISSIONER OF INTERNAL REVENUE, 88 F.(2D) 869. 

NO. 129. 

RESPONDENT TUNNICLIFFE, LIQUIDATOR OF INSOLVENT BANKS APPOINTED BY
THE COMPTROLLER OF FLORIDA, WAS ASSESSED FOR FEDERAL INCOME TAXES UPON
THE SUMS RECEIVED FOR SERVICES DURING 1931 AND 1932.  THE BOARD OF TAX
APPEALS APPROVED; THE CIRCUIT COURT OF APPEALS RULED OTHERWISE UPON ITS
OPINION IN NO. 128.  TUNNICLIFFE V. COMMISSIONER OF INTERNAL REVENUE,
88 F.(2D) 873.  BOTH CAUSES PRESENT THE SAME POINTS. 

NO. 287. 

PETITIONER MCLOUGHLIN WAS EMPLOYED BY THE INSURANCE DEPARTMENT OF NEW
YORK AS LEGAL COUNSEL IN THE LIQUIDATION BUREAU AND RECEIVED FOR
SERVICES DURING 1932, $5,125.00.  THIS BUREAU IS IN CHARGE OF A DEPUTY
SUPERINTENDENT OF INSURANCE A CIVIL SERVICE EMPLOYE WHOSE SALARY IS
PAID BY THE STATE.  IT EMPLOYS MANY PERSONS - SUPERINTENDENTS,
ATTORNEYS, BOOKKEEPERS, STENOGRAPHERS, ADJUSTERS, ACCOUNTANTS, ETC. 

UNDER THE STATUTES THE SUPERINTENDENT MAY APPLY TO THE COURT FOR AN
ORDER TO TAKE OVER THE ASSETS OF AN INSOLVENT INSURANCE COMPANY AND
LIQUIDATE ITS AFFAIRS.  WHEN THIS ISSUES THE CORPORATE CHARTER IS
DISSOLVED AND THE SUPERINTENDENT MUST PROCEED TO COLLECT ASSETS, ADJUST
CLAIMS, ETC.  HE DETERMINED PETITIONER'S COMPENSATION AND CAUSED IT TO
BE PAID FROM ASSETS OF THE SEVERAL COMPANIES IN LIQUIDATION ACCORDING
TO THE TIME DEVOTED TO EACH. 

THE COMMISSIONER ASSESSED THIS COMPENSATION FOR FEDERAL INCOME TAX;
THE BOARD OF TAX APPEALS APPROVED.  THE CIRCUIT COURT OF APPEALS
AFFIRMED, AND DEFINITELY HELD IT WAS NOT EXEMPTED BY THE FEDERAL
CONSTITUTION.  MCLOUGHLIN V. COMMISSIONER OF INTERNAL REVENUE, 89
F.(2D) 699. 

NO. 597. 

FREEDMAN, EMPLOYED AS AN ATTORNEY IN PENNSYLVANIA'S DEPARTMENT OF
JUSTICE, RECEIVED ANNUAL SALARY OF $3,000.00.  THE ATTORNEY GENERAL HAS
POWER TO APPOINT ATTORNEYS TO REPRESENT ANY DEPARTMENT, BOARD OR
COMMISSION OF THE STATE AND FIX THEIR COMPENSATION.  THE SECRETARY OF
BANKING HAS BROAD POWERS OVER BANKS.  WHEN ONE BECOMES UNSOUND HE MAY,
AFTER NOTICE AND HEARING AND WITH THE ATTORNEY GENERAL'S CONSENT, TAKE
POSSESSION AND WIND UP ITS AFFAIRS.  ALL NECESSARY EXPENSES, INCLUDING
COMPENSATION OF ATTORNEYS, SPECIAL DEPUTIES, ASSISTANTS AND OTHERS
EMPLOYED ABOUT THE PROCEEDINGS, ARE PAID FROM FUNDS OF THE
CORPORATION. 

DURING 1932 THE RESPONDENT WAS ASSIGNED FOR LEGAL WORK RELATING TO
CLOSED BANKS AND WAS PAID BY THE SECRETARY OF BANKING OUT OF THEIR
FUNDS.  THE COMMISSIONER ASSESSED THE SUM SO RECEIVED FOR FEDERAL
INCOME TAX.  THE BOARD OF TAX APPEALS APPROVED; THE CIRCUIT COURT OF
APPEALS DECLARED THE SALARY EXEMPT.  FREEDMAN V. COMMISSIONER OF
INTERNAL REVENUE, 92 F.(2D) 150. 

WHAT LIMITATIONS DOES THE FEDERAL CONSTITUTION IMPOSE UPON THE UNITED
STATES IN RESPECT OF TAXING INSTRUMENTALITIES AND AGENCIES EMPLOYED BY
A STATE AND, CONVERSELY, HOW FAR DOES IT INHIBIT THE STATES FROM TAXING
INSTRUMENTALITIES AND AGENCIES UTILIZED BY THE UNITED STATES, ARE
QUESTIONS OFTEN CONSIDERED HERE.  MCCULLOCH V. MARYLAND (1819), 4
WHEAT.  316; WESTON V. CHARLESTON (1829), 2 PET. 449; DOBBINS V.
COMMISSIONERS OF ERIE COUNTY, 16 PET. 435; LANE COUNTY V. OREGON, 7
WALL.  71; VEAZIE BANK V. FENNO, 8 WALL.  533, 556; SOUTH CAROLINA V.
UNITED STATES, 199 U.S. 437, 457; METCALF & EDDY V. MITCHELL, 269 U.S.
514; INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570; BURNET V.
JERGINS TRUST, 288 U.S. 508, 516; OHIO V. HELVERING, 292 U.S. 360, 368;
HELVERING V. POWERS, 293 U.S. 214; ROGERS V. GRAVES, 299 U.S. 401;
BRUSH V. COMMISSIONER, 300 U.S. 352. 

THE CONSTITUTION CONTEMPLATES A NATIONAL GOVERNMENT FREE TO USE ITS
DELEGATED POWERS; ALSO STATE GOVERNMENTS CAPABLE OF EXERCISING THEIR
ESSENTIAL RESERVED POWERS; BOTH OPERATE WITHIN THE SAME TERRITORIAL
LIMITS; CONSEQUENTLY THE CONSTITUTION ITSELF, EITHER BY WORD OR
NECESSARY INFERENCE, MAKES ADEQUATE PROVISION FOR PREVENTING CONFLICT
BETWEEN THEM. 

AMONG THE INFERENCES WHICH DERIVE NECESSARILY FROM THE CONSTITUTION
ARE THESE: NO STATE MAY TAX APPROPRIATE MEANS WHICH THE UNITED STATES
MAY EMPLOY FOR EXERCISING THEIR DELEGATED POWERS; THE UNITED STATES MAY
NOT TAX INSTRUMENTALITIES WHICH A STATE MAY EMPLOY IN THE DISCHARGE OF
HER ESSENTIAL GOVERNMENTAL DUTIES - THAT IS THOSE DUTIES WHICH THE
FRAMERS INTENDED EACH MEMBER OF THE UNION WOULD ASSUME IN ORDER
ADEQUATELY TO FUNCTION UNDER THE FORM OF GOVERNMENT GUARANTEED BY THE
CONSTITUTION. 

BY DEFINITION PRECISELY TO DELIMIT "DELEGATED POWERS" OR "ESSENTIAL
GOVERNMENTAL DUTIES" IS NOT POSSIBLE.  CONTROVERSIES INVOLVING THESE
TERMS MUST BE DECIDED AS THEY ARISE, UPON CONSIDERATION OF ALL THE
RELEVANT CIRCUMSTANCES.  NOTWITHSTANDING DISCORDANT VIEWS WHICH HAVE
SOMETIMES ARISEN BECAUSE OF VARYING EMPHASIS GIVEN TO ONE OR ANOTHER OF
SUCH CIRCUMSTANCES, IT IS NOW SETTLED DOCTRINE THAT THE INFERRED
EXEMPTION FROM FEDERAL TAXATION DOES NOT EXTEND TO EVERY
INSTRUMENTALITY WHICH A STATE MAY SEE FIT TO EMPLOY.  EXEMPTION DEPENDS
UPON THE NATURE OF THE UNDERTAKING; IT IS CABINED BY THE REASON WHICH
UNDERLIES THE INFERENCE. 

VEAZIE BANK V. FENNO, SUPRA, SUSTAINED A TAX LAID BY THE FEDERAL
GOVERNMENT UPON NOTES ISSUED BY STATE BANKS, NOTWITHSTANDING THE VIEW
ENTERTAINED BY TWO JUSTICES THAT IT AMOUNTED TO "TAXATION OF THE POWERS
AND FACULTIES OF THE STATE GOVERNMENTS, WHICH ARE ESSENTIAL TO THEIR
SOVEREIGNTY, AND TO THE EFFICIENT AND INDEPENDENT MANAGEMENT AND
ADMINISTRATION OF THEIR INTERNAL AFFAIRS." 

SOUTH CAROLINA V. UNITED STATES, SUPRA, GAVE OCCASION FOR MUCH
CONSIDERATION OF THE FEDERAL GOVERNMENT'S POWER TO TAX
INSTRUMENTALITIES UTILIZED BY A STATE.  IT RULED, AGAINST A STOUT
DISSENT, THAT ALTHOUGH SOUTH CAROLINA HAD THE RIGHT TO CONTROL THE SALE
OF LIQUORS THROUGH THE DISPENSARY SYSTEM, NEVERTHELESS CONGRESS COULD
TAX THE DISPENSERS WHO ACTED AS AGENTS OF THE STATE IN MAKING SALES. 
"LOOKING, THEREFORE, AT THE CONSTITUTION IN THE LIGHT OF THE CONDITIONS
SURROUNDING AT THE TIME OF ITS ADOPTION, IT IS OBVIOUS THAT THE FRAMERS
IN GRANTING FULL POWER OVER LICENSE TAXES TO THE NATIONAL GOVERNMENT
MEANT THAT THAT POWER SHOULD BE COMPLETE, AND NEVER THOUGHT THAT THE
STATES BY EXTENDING THEIR FUNCTIONS COULD PRACTICALLY DESTROY IT." 

BURNET V. JERGINS TRUST, SUPRA, UPHELD A FEDERAL TAX UPON THE
RECEIPTS BY THE LESSEE OF OIL LANDS WHICH BELONGED TO THE CITY OF LONG
BEACH, CALIFORNIA.  "THE SUBJECT OF THE TAX IS SO REMOTE FROM ANY
GOVERNMENTAL FUNCTION AS TO RENDER THE EFFECT OF THE EXACTION
INCONSIDERABLE AS RESPECTS THE ACTIVITIES OF THE CITY." 

IN OHIO V. HELVERING, SUPRA, WE HELD THAT THE AGENCIES AND OPERATIONS
OF THE STATE OF OHIO IN THE CONDUCT OF ITS DEPARTMENT OF LIQUOR CONTROL
WERE SUBJECT TO EXCISE TAXES PRESCRIBED BY CONGRESS.  "WHENEVER A STATE
ENGAGES IN A BUSINESS OF A PRIVATE NATURE IT EXERCISES NONGOVERNMENTAL
FUNCTIONS AND THE BUSINESS, THOUGH CONDUCTED BY THE STATE, IS NOT
IMMUNE FROM THE EXERCISE OF THE POWER OF TAXATION WHICH THE
CONSTITUTION VESTS IN THE CONGRESS." 

HELVERING V. POWERS, SUPRA, RULED THAT THE COMPENSATION OF MEMBERS OF
THE BOARD OF TRUSTEES OF THE BOSTON ELEVATED RAILWAY COMPANY WAS
SUBJECT TO THE FEDERAL INCOME TAX NOTWITHSTANDING THEY WERE APPOINTED
BY THE GOVERNOR OF THE STATE, CONFIRMED BY THE COUNCIL, AND ENDOWED
WITH LARGE POWERS TO REGULATE AND FIX FARES, ETC.  "THE FACT THAT THE
STATE HAS POWER TO UNDERTAKE SUCH ENTERPRISES, AND THAT THEY ARE
UNDERTAKEN FOR WHAT THE STATE CONCEIVES TO BE THE PUBLIC BENEFIT, DOES
NOT ESTABLISH IMMUNITY." 

THE CASES LAST REFERRED TO STRIKINGLY ILLUSTRATE THE OUTCOME OF
EFFORTS HERE TO APPLY THE RECOGNIZED DOCTRINE IN RESPECT OF TAXING
STATE AGENCIES.  ACCORDING TO THEM AND OTHERS OF LIKE NATURE DUE
WEIGHT, WE ARE UNABLE TO CONCLUDE THAT THE COMMISSIONER ERRED IN MAKING
ANY ONE OF THE ASSESSMENTS INVOLVED IN THE FOUR CASES PRESENTLY BEFORE
US.  HE GAVE PROPER APPLICATION TO THE RULE WHICH WE MUST RECOGNIZE AS
ESTABLISHED.  THE COMPENSATION OF THE TAXPAYERS WAS PAID FROM CORPORATE
ASSETS - NOT FROM FUNDS BELONGING TO THE STATE.  NO ONE OF THEM WAS AN
OFFICER OF THE STATE IN THE STRICT SENSE OF THAT TERM.  THE BUSINESS
ABOUT WHICH THEY WERE EMPLOYED WAS NOT ONE UTILIZED BY THE STATE IN THE
DISCHARGE OF HER ESSENTIAL GOVERNMENTAL DUTIES.  THE CORPORATIONS IN
LIQUIDATION WERE PRIVATE ENTERPRISES; THEIR FUNDS WERE THE PROPERTY OF
PRIVATE INDIVIDUALS. 

IT FOLLOWS THAT THE JUDGMENTS IN NOS. 128, 129 AND 597 MUST BE
REVERSED; THE JUDGMENT IN NO. 287 MUST BE AFFIRMED.  NOS. 128, 129, AND
597, REVERSED.  NO. 287 AFFIRMED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






UNITED STATES V. GRIFFIN, 303 U.S. 226 


NO. 63.  ARGUED NOVEMBER 19, 1937.  REARGUED JANUARY 3, 1938.  - DECIDED
FEBRUARY 28, 1938.  - REVERSED. 


1.  LACK OF JURISDICTION OF THE DISTRICT COURT OVER THE SUBJECT-MATTER
CAN NOT BE WAIVED BY THE PARTIES; WHEN DISCOVERED ON APPEAL, DISMISSAL
OF THE BILL MUST BE ORDERED.  P. 229. 

2.  THE JURISDICTION TO SET ASIDE ORDERS OF THE INTERSTATE COMMERCE
COMMISSION, CONFERRED UPON THE DISTRICT COURT OF THREE JUDGES BY THE
URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, DOES NOT APPLY TO NEGATIVE
ORDERS.  P. 232. 

3.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DECLINING, UPON RE
EXAMINATION, TO INCREASE THE COMPENSATION FOR CARRYING MAIL FIXED BY AN
EARLIER ORDER PURSUANT TO THE RAILWAY MAIL PAY ACT, IS A NEGATIVE
ORDER.  P. 234. 

4.  ORDERS OF THE INTERSTATE COMMERCE COMMISSION FIXING THE
COMPENSATION PAYABLE BY THE GOVERNMENT TO RAILROADS FOR CARRYING THE
MAILS, EVEN IF AFFIRMATIVE ORDERS, ARE NOT SUBJECT TO THE EXTRAORDINARY
REMEDY OF THE URGENT DEFICIENCIES ACT, SINCE THEY ARE NOT WITHIN THE
REASONS FOR IT, NAMELY, TO GUARD AGAINST ILL-CONSIDERED ACTION BY A
SINGLE JUDGE AND TO AVERT DELAYS ORDINARILY INCIDENT TO LITIGATION, IN
CASES OF WIDE PUBLIC INTEREST.  P. 234. 

DENIAL OF JURISDICTION UNDER THE URGENT DEFICIENCIES ACT, LEAVES OPEN
OTHER WAYS TO JUDICIAL REVIEW OF ORDERS RESPECTING RAILWAY MAIL PAY. 
P. 238. 

5.  A SUIT UNDER THE URGENT DEFICIENCIES ACT TO SET ASIDE AN ORDER
CONCERNING MAIL PAY IS NOT PRIMARILY AGAINST THE COMMISSION, BUT IS A
SUIT AGAINST THE UNITED STATES.  THE UNITED STATES CAN NOT BE SUED
WITHOUT AUTHORITY SPECIFICALLY CONFERRED.  THE RAILWAY MAIL PAY ACT
DOES NOT CONFER THAT AUTHORITY.  P. 238. 

UNITED STATES ET AL. V. GRIFFIN ET AL., RECEIVERS. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF GEORGIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES, WHICH SET
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION REFUSING AN
INCREASE OF RAILWAY MAIL PAY OVER WHAT HAD PREVIOUSLY BEEN ALLOWED, AND
WHICH DIRECTED THE COMMISSION TO TAKE "SUCH FURTHER ACTION IN THE
PREMISES AS THE LAW REQUIRES IN VIEW OF THE ANNULMENT AND SETTING ASIDE
OF" ITS ORDER. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION REQUIRING DECISION IS ONE OF STATUTORY
CONSTRUCTION:  THE RAILWAY MAIL PAY ACT OF JULY 28, 1916, C. 261, SEC.
5, 39 STAT. 412, 425, 429, 430, PROVIDES THAT THE INTERSTATE COMMERCE
COMMISSION "SHALL ESTABLISH BY ORDER A FAIR, REASONABLE RATE OR
COMPENSATION TO BE RECEIVED" BY RAILROADS FOR CARRYING THE MAIL; FN1
AND AUTHORIZES THE COMMISSION TO MODIFY THE ORDER UPON A "RE
EXAMINATION."  THE URGENT DEFICIENCIES ACT OF OCTOBER 22, 1913, C. 32,
38 STAT. 208, 219, 220(AMENDING ACT OF JUNE 18, 1910, C. 309, 36 STAT.
539) DECLARES THAT DISTRICT COURTS SHALL HAVE JURISDICTION "OF CASES
BROUGHT TO ENJOIN, SET ASIDE, ANNUL OR SUSPEND IN WHOLE OR IN PART ANY
ORDER OF THE INTERSTATE COMMERCE COMMISSION."  MAY SUIT BE BROUGHT
UNDER THE URGENT DEFICIENCIES ACT TO SET ASIDE AN ORDER REFUSING, UPON
"RE-EXAMINATION," TO INCREASE THE ALLOWANCE FOR RAILWAY MAIL
COMPENSATION THERETOFORE MADE TO THIS CARRIER? 

THE SUIT WAS BROUGHT, UNDER THE URGENT DEFICIENCIES ACT, IN THE
FEDERAL COURT FOR SOUTHERN GEORGIA, BY THE RECEIVERS OF THE GEORGIA &
FLORIDA RAILROAD AGAINST THE UNITED STATES AND THE INTERSTATE COMMERCE
COMMISSION, TO SET ASIDE AN ORDER MADE MAY 10, 1933, UNDER THE RAILWAY
MAIL PAY ACT, RAILWAY MAIL PAY, GEORGIA & FLORIDA R. CO., 192 I.C.C.
779; AND TO GRANT A PERMANENT INJUNCTION.  BY THAT ORDER THE COMMISSION
HAD DENIED UPON A "RE-EXAMINATION" AN APPLICATION FURTHER TO INCREASE
THE COMPENSATION ALLOWED BY THE ORDER OF JULY 10, 1928.  RAILWAY MAIL
PAY, 144 I.C.C. 675.  THE 1928 ORDER HAD, UPON A "RE-EXAMINATION,"
INCREASED THE COMPENSATION ORIGINALLY FIXED BY ORDER OF DECEMBER 23,
1919.  RAILWAY MAIL PAY, 56 I.C.C. 1.  AS GROUNDS FOR SETTING ASIDE THE
ORDER OF MAY 10, 1933, THE RECEIVERS ALLEGED, AMONG OTHER THINGS, THAT
THE ORDER WAS UNLAWFUL, BECAUSE THE FINDING THAT THE EXISTING RATES
WERE FAIR AND REASONABLE WAS WITHOUT EVIDENCE TO SUPPORT IT AND
CONTRARY TO THE EVIDENCE AND THAT THE ORDER WILL VIOLATE THE FIFTH
AMENDMENT BY TAKING PROPERTY WITHOUT JUST COMPENSATION. 

THE JURISDICTION OF THE COURT WAS NOT CHALLENGED; AND THE CASE WAS
HEARD BY THREE JUDGES ON THE MERITS.  A DECREE WAS RENDERED SETTING
ASIDE AS UNLAWFUL THE ORDER OF MAY 10, 1933, AND DIRECTING THE
COMMISSION TO TAKE FURTHER ACTION.  ADDITIONAL HEARINGS WERE THEN HAD
BY THE COMMISSION; AND ON FEBRUARY 4, 1936, IT AGAIN DECLINED TO ORDER
ANY INCREASE OVER THAT WHICH HAD BEEN ALLOWED JULY 10, 1928.  RAILWAY
MAIL PAY, GEORGIA & FLORIDA R. CO., 214 I.C.C. 66.  THE LAST ORDER OF
THE COMMISSION WAS ASSAILED BY A SUPPLEMENTAL BILL ON THE SAME GROUNDS
AS THAT ASSAILED IN THE ORIGINAL BILL.  THE JURISDICTION OF THE COURT
WAS NOT CHALLENGED; THE CASE WAS AGAIN HEARD ON THE MERITS BY THREE
JUDGES; AND A DECREE WAS ENTERED SETTING ASIDE THE ORDER OF FEBRUARY 4,
1936, AND DIRECTING THE COMMISSION TO TAKE "SUCH FURTHER ACTION IN THE
PREMISES AS THE LAW REQUIRES IN VIEW OF THE ANNULMENT AND SETTING ASIDE
OF" THE ORDER. 

FROM THAT DECREE THE UNITED STATES AND THE INTERSTATE COMMERCE
COMMISSION HAVE APPEALED TO THIS COURT.  HERE, ALTHOUGH ANSWERING TO
THE MERITS, THEY CHALLENGED THE JURISDICTION OF THE DISTRICT COURT. 
SINCE LACK OF JURISDICTION OF A FEDERAL COURT TOUCHING THE SUBJECT
MATTER OF THE LITIGATION CANNOT BE WAIVED BY THE PARTIES, WE MUST UPON
THIS APPEAL EXAMINE THE CONTENTION; AND, IF WE CONCLUDE THAT THE
DISTRICT COURT LACKED JURISDICTION OF THE CAUSE, DIRECT THAT THE BILL
BE DISMISSED.  UNITED STATES V. CORRICK, 298 U.S. 435, 440.  WE AT
FIRST THOUGHT THAT THE DISTRICT COURT HAD JURISDICTION, AND ORDERED A
REARGUMENT OF THE CASE ON THE MERITS.  BUT, UPON FURTHER CONSIDERATION
OF THE JURISDICTIONAL QUESTION, WE ARE OF OPINION THAT THE REMEDY
PROVIDED BY THE URGENT DEFICIENCIES ACT IS NOT APPLICABLE TO THIS
ORDER. 

FIRST.  THE RAILWAY MAIL PAY ACT TERMINATED THE SYSTEM THERETOFORE
PREVAILING OF SERVICE UNDER VOLUNTARY CONTRACTS.  FN2  AS EMBODIED IN
U.S.C.  TITLE 39, SECS. 523 TO 568, IT PROVIDES IN FORTY-SIX SECTIONS
COMPREHENSIVELY FOR THE CHARACTER, MEANS AND METHODS OF MAIL
TRANSPORTATION; DEFINES THE AUTHORITY OF THE POSTMASTER GENERAL; AND
DESCRIBES THE OBLIGATIONS OF THE RAILROADS AND THEIR RIGHT TO
COMPENSATION, WHICH IS TO BE FIXED BY THE COMMISSION. 

"THE INTERSTATE COMMERCE COMMISSION IS HEREBY EMPOWERED AND DIRECTED
TO FIX AND DETERMINE FROM TIME TO TIME THE FAIR AND REASONABLE RATES
AND COMPENSATION FOR THE TRANSPORTATION OF SUCH MAIL MATTER BY RAILWAY
COMMON CARRIERS AND THE SERVICES CONNECTED THEREWITH, PRESCRIBING THE
METHOD OR METHODS BY WEIGHT, OR SPACE, OR BOTH, OR OTHERWISE, FOR
ASCERTAINING SUCH RATE OR COMPENSATION, AND TO PUBLISH THE SAME, AND
ORDERS SO MADE AND PUBLISHED SHALL CONTINUE IN FORCE UNTIL CHANGED BY
THE COMMISSION AFTER DUE NOTICE AND HEARING."  39 U.S.C. SEC. 542. 

"FOR THE PURPOSE OF DETERMINING AND FIXING RATES OR COMPENSATION
HEREUNDER THE COMMISSION IS AUTHORIZED TO MAKE SUCH CLASSIFICATION OF
CARRIERS AS MAY BE JUST AND REASONABLE AND, WHERE JUST AND EQUITABLE,
FIX GENERAL RATES APPLICABLE TO ALL CARRIERS IN THE SAME
CLASSIFICATION."  39 U.S.C. SEC. 549. 

"AT THE CONCLUSION OF THE HEARING THE COMMISSION SHALL ESTABLISH BY
ORDER A FAIR, REASONABLE RATE OR COMPENSATION TO BE RECEIVED, AT SUCH
STATED TIMES AS MAY BE NAMED IN THE ORDER, FOR THE TRANSPORTATION OF
MAIL MATTER AND THE SERVICE CONNECTED THEREWITH, AND DURING THE
CONTINUANCE OF THE ORDER THE POSTMASTER GENERAL SHALL PAY THE CARRIER
FROM THE APPROPRIATION FOR INLAND TRANSPORTATION BY RAILROAD ROUTES
SUCH RATE OR COMPENSATION."  39 U.S.C. SEC. 551. 

ELEVEN SECTIONS OF THE ACT DEAL WITH THE PROCEDURE ON HEARINGS BEFORE
THE COMMISSION.  FN3  NO PROVISION IS MADE FOR A JUDICIAL REVIEW.  BUT
PROVISION IS MADE FOR ADMINISTRATIVE REVIEW BY "REEXAMINATION" OF AN
ORDER. 

"EITHER THE POSTMASTER GENERAL OR ANY SUCH CARRIER MAY AT ANY TIME
AFTER THE LAPSE OF SIX MONTHS FROM THE ENTRY OF THE ORDER ASSAILED
APPLY FOR A REEXAMINATION AND THEREUPON SUBSTANTIALLY SIMILAR
PROCEEDINGS SHALL BE HAD WITH RESPECT TO THE RATE OR RATES FOR SERVICE
COVERED BY SAID APPLICATION, PROVIDED SAID CARRIER OR CARRIERS HAVE AN
INTEREST THEREIN."  39 U.S.C. SEC. 553. 

THERE HAVE BEEN MANY ADMINISTRATIVE REVIEWS BY "REEXAMINATION."  N4
THE CASE AT BAR APPEARS TO BE THE ONLY INSTANCE IN WHICH AN ATTEMPT HAS
BEEN MADE TO SET ASIDE A MAIL ORDER BY SUIT UNDER THE URGENT
DEFICIENCIES ACT. 

SECOND.  THE URGENT DEFICIENCIES ACT PROVIDES A METHOD OF JUDICIAL
REVIEW OF ORDERS OF THE INTERSTATE COMMERCE COMMISSION POSSESSING THE
FOLLOWING EXTRAORDINARY FEATURES:  (1) THE ORIGINAL HEARING IN THE
DISTRICT COURT IS NOT BEFORE A SINGLE JUDGE, BUT BEFORE THREE, OF WHOM
ONE MUST BE A CIRCUIT JUDGE; (2) FROM THE DECREE OF THE DISTRICT COURT
AS SO CONSTITUTED A DIRECT APPEAL TO THE SUPREME COURT IS GRANTED AS OF
RIGHT, INSTEAD OF A REVIEW BY A CIRCUIT COURT OF APPEALS; (3) UPON BOTH
THE TRIAL COURT AND THE SUPREME COURT RESTS THE OBLIGATION TO GIVE THE
CASE PRECEDENCE OVER OTHERS.  THESE FEATURES WERE FIRST INTRODUCED BY
THE EXPEDITING ACT OF 1903, 32 STAT. 823, FOR SUITS BY THE UNITED
STATES TO ENFORCE THE ANTITRUST AND COMMERCE LAWS.  THEY WERE EXTENDED
BY THE HEPBURN ACT OF 1906, SEC. 5, 34 STAT. 584, 590, 592, TO SUITS TO
ENFORCE OR TO SET ASIDE ORDERS OF THE INTERSTATE COMMERCE COMMISSION. 
WHEN THAT JURISDICTION WAS VESTED IN THE COMMERCE COURT PROVISIONS WITH
LIKE EFFECT WERE PROVIDED FOR CASES COMING BEFORE IT.  36 STAT. 539. 
TO ITS JURISDICTION THE DISTRICT COURT SUCCEEDED, WITH THESE FEATURES,
UNDER THE URGENT DEFICIENCIES ACT. 

IN THE OPINION OF CONGRESS JURISDICTION WITH THE EXTRAORDINARY
FEATURES OF THE URGENT DEFICIENCIES ACT WAS JUSTIFIED BY THE CHARACTER
OF THE CASES TO WHICH IT APPLIED - CASES OF PUBLIC IMPORTANCE BECAUSE
OF THE WIDESPREAD EFFECT OF THE DECISIONS THEREOF.  IN SUCH CASES
CONGRESS SOUGHT TO GUARD AGAINST ILL-CONSIDERED ACTION BY A SINGLE
JUDGE AND TO AVERT THE DELAYS ORDINARILY INCIDENT TO LITIGATION.  IN
CONSTRUING THE ACT, THIS COURT CONCLUDED THAT DESPITE THE BROAD
LANGUAGE USED IN THE COMMERCE COURT ACT, CONGRESS COULD NOT HAVE
INTENDED TO INCLUDE IN THIS SPECIAL JURISDICTION SUITS TO SET ASIDE
EVERY KIND OF ORDER ISSUED BY THE COMMISSION.  FOR SUBSTANTIALLY EVERY
DECISION, AND EVERY OTHER KIND OF ACTION BY THE COMMISSION IS EXPRESSED
IN, OR IS FOLLOWED BY, AN ORDER; AND MANY OF THE ORDERS ARE OBVIOUSLY
NOT OF SUCH PUBLIC IMPORTANCE AND WIDESPREAD EFFECT AS TO JUSTIFY, IN
CASES AFFECTING THEM, THE EXTRAORDINARY FEATURES OF THE URGENT
DEFICIENCIES ACT. 

THE COMMERCE COURT HAD (36 STAT. 539) JURISDICTION "OVER ALL CASES OF
THE FOLLOWING KINDS": 

"FIRST.  ALL CASES FOR THE ENFORCEMENT, OTHERWISE THAN BY
ADJUDICATION AND COLLECTION OF A FORFEITURE OR PENALTY OR BY INFLICTION
OF CRIMINAL PUNISHMENT, OF ANY ORDER OF THE INTERSTATE COMMERCE
COMMISSION OTHER THAN FOR THE PAYMENT OF MONEY. 

"SECOND.  CASES BROUGHT TO ENJOIN, SET ASIDE, ANNUL, OR SUSPEND IN
WHOLE OR IN PART ANY ORDER OF THE INTERSTATE COMMERCE COMMISSION...." 

THIS COURT CONCLUDED THAT, AS THE INTENT OF CONGRESS WAS "TO RELIEVE
PARTIES IN WHOLE OR IN PART FROM THE DUTY OF OBEDIENCE TO ORDERS WHICH
ARE FOUND TO BE ILLEGAL," THERE WAS JURISDICTION TO SET ASIDE ONLY
THOSE KINDS OF ORDERS WHICH THERE WAS JURISDICTION TO ENFORCE; THAT A
DISTINCTION MUST BE DRAWN BETWEEN "AFFIRMATIVE" AND "NEGATIVE" ORDERS;
AND THAT JURISDICTION UNDER THE COMMERCE COURT ACT WAS APPLICABLE ONLY
TO "AFFIRMATIVE" ORDERS.  PROCTER & GAMBLE CO. V. UNITED STATES, 225
U.S. 282; HOOKER V. KNAPP, 225 U.S. 302.  SINCE THE ABOLITION OF THE
COMMERCE COURT, THAT RULE HAS BEEN CONSISTENTLY FOLLOWED IN CASES
BROUGHT UNDER THE URGENT DEFICIENCIES ACT.  LEHIGH VALLEY R. CO. V.
UNITED STATES, 243 U.S. 412; PIEDMONT & NORTHERN RY. CO. V. UNITED
STATES, 280 U.S. 469; STANDARD OIL CO. V. UNITED STATES, 283 U.S. 235;
UNITED STATES V. CORRICK, 298 U.S. 435.  COMPARE DELAWARE & HUDSON CO.
V. UNITED STATES, 266 U.S. 438; UNITED STATES V. LOS ANGELES & SALT
LAKE R. CO., 273 U.S. 299. 

THE ORDER OF FEBRUARY 4, 1936, HERE ASSAILED, DOES NOT COMMAND EITHER
THE GOVERNMENT OR THE RAILROAD TO DO ANYTHING.  IT IS SIMPLY A REFUSAL,
UPON A SECOND "RE-EXAMINATION" OF THE ORDER OF JULY 11, 1928, FURTHER
TO INCREASE THE COMPENSATION THEREBY AWARDED UPON A "RE-EXAMINATION" OF
THE COMPENSATION ORIGINALLY AWARDED BY THE ORDER MADE DECEMBER 23,
1919.  THE ORDER ASSAILED, BEING A REFUSAL TO CHANGE THE EXISTING
STATUS, WAS A "NEGATIVE" ORDER.  THE DISTRICT COURT LACKED JURISDICTION
TO SET IT ASIDE, AND SHOULD HAVE DISMISSED THE BILL. 

THIRD.  CONGRESS CANNOT BE ASSUMED TO HAVE MADE THE EXTRAORDINARY
REMEDY OF THE URGENT DEFICIENCIES ACT APPLICABLE FOR THE DETERMINATION
OF THE VALIDITY OF RAILWAY MAIL PAY ORDERS, EVEN IF "AFFIRMATIVE."  THE
ISSUE HERE IS WHETHER THE EXISTING MAIL REVENUE OF $35,728 SHOULD BE
INCREASED FOR THE YEAR BY $31,227.  THERE IS NO WIDE PUBLIC INTEREST IN
ITS SPEEDY DETERMINATION.  THERE IS NO DANGER OF TEMPORARILY
INTERRUPTING THE MAIL SERVICE THROUGH THE IMPROVIDENT ISSUE OF AN
INJUNCTION BY A SINGLE JUDGE.  ONLY THE METHOD OR AMOUNT OF PAYMENTS
CURRENTLY TO BE MADE WOULD BE AFFECTED.  SUCH ORDERS ARE IN CHARACTER
UNLIKE THOSE UNDER THE BOILER INSPECTION ACT, 36 STAT. 913, AS AMENDED,
38 STAT. 1192, 43 STAT. 659, AND THE INLAND WATERWAYS CORPORATION ACT,
43 STAT. 360, 361, AS AMENDED, 45 STAT. 978, 48 STAT. 968, OF WHICH
JURISDICTION WAS TAKEN ALTHOUGH THE STATUTES CONTAINED NO PROVISION FOR
JUDICIAL REVIEW.  FN5 

IN GREAT NORTHERN RY. CO. V. UNITED STATES, 277 U.S. 172, WE HELD
THAT THERE WAS NOT JURISDICTION UNDER THE URGENT DEFICIENCIES ACT OF A
SUIT TO SET ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION MADE
UNDER TITLE II OF THE TRANSPORTATION ACT OF 1920 DETERMINING THE AMOUNT
DUE A RAILROAD ON THE GOVERNMENT'S GUARANTY OF INCOME FOR THE PERIOD
FOLLOWING RELINQUISHMENT OF FEDERAL CONTROL.  AND IN UNITED STATES V.
LOS ANGELES & SALT LAKE R. CO., 273 U.S. 299, WE HELD THAT THERE WAS
NOT JURISDICTION UNDER THE URGENT DEFICIENCIES ACT OF A SUIT TO SET
ASIDE A FINAL ORDER UNDER THE VALUATION ACT, EVEN THOUGH THAT STATUTE
WAS ENACTED AS AN AMENDMENT TO THE INTERSTATE COMMERCE ACT ITSELF.  37
STAT. 701, AS AMENDED, 41 STAT. 456, 474, 493, 42 STAT. 624.  FN6 

IN RECENT YEARS THE FIELD OF ADMINISTRATIVE DETERMINATION HAS BEEN
WIDELY EXTENDED; AND THE DUTY OF MAKING MANY OF THESE DETERMINATIONS
HAS BEEN IMPOSED UPON THE INTERSTATE COMMERCE COMMISSION.  FN7  SOME OF
THE STATUTES CONTAIN SPECIFIC PROVISION MAKING APPLICABLE JURISDICTION
UNDER THE URGENT DEFICIENCIES ACT.  THIS IS TRUE OF THE EMERGENCY
RAILROAD TRANSPORTATION ACT OF 1933, 48 STAT. 211, 216, AS AMENDED, 49
STAT. 376, AND OF THE MOTOR CARRIER ACT OF 1935, 49 STAT. 543, 550. 
COMPARE TRANSPORTATION OF EXPLOSIVES ACT (CRIMINAL CODE, SEC. 233), 35
STAT. 554, 555, AS AMENDED, 35 STAT. 1088, 1135, 41 STAT. 1445.  IT IS
TRUE LIKEWISE OF SEVERAL STATUTES UNDER WHICH THE DETERMINATIONS ARE TO
BE MADE BY OTHER ADMINISTRATIVE TRIBUNALS.  SHIPPING ACT OF 1916, 39
STAT. 728, 738, SUPERSEDED BY 49 STAT. 1985(UNITED STATES SHIPPING
BOARD); PACKERS & STOCKYARDS ACT OF 1921, 42 STAT. 159, 168(SECRETARY
OF AGRICULTURE); PERISHABLE AGRICULTURAL COMMODITIES ACT OF 1930, 46
STAT. 531, 535(SECRETARY OF AGRICULTURE); EMERGENCY RAILROAD
TRANSPORTATION ACT OF 1933, SUPRA (FEDERAL COORDINATOR OF
TRANSPORTATION); COMMUNICATIONS ACT OF 1934, 48 STAT. 1064, 1093, AS
AMENDED, 50 STAT. 189(FEDERAL COMMUNICATIONS COMMISSION).  FN8  THE
ORDERS FOR WHICH REVIEW IS PROVIDED BY EACH OF THESE STATUTES ARE LIKE
THE ORDERS UNDER THE INTERSTATE COMMERCE ACT FIXING RATES PAYABLE BY
SHIPPERS.  IMPROPER INJUNCTIVE RELIEF OF SUCH ORDERS OR DELAY IN FINAL
DETERMINATION OF THEIR VALIDITY MAY SERIOUSLY AFFECT THE PUBLIC
INTEREST BY PREVENTING OR OBSTRUCTING ACTION UNDER THOSE STATUTES. 

WHILE THE COMPENSATION FIXED IN A RAILWAY MAIL PAY ORDER IS
ORDINARILY MEASURED BY A RATE, THE ULTIMATE QUESTION DETERMINED BY THE
COMMISSION IS, AS IN THE GREAT NORTHERN CASE, THE PROPER COMPENSATION
TO BE PAID BY THE GOVERNMENT TO THE RAILROAD FOR SERVICES AND THE USE
OF ITS PROPERTY - THE QUANTUM MERUIT FOR CARRYING THE MAIL.  THERE IS
NOTHING IN THE HISTORY OF THE RAILWAY MAIL PAY ACT WHICH REQUIRES THAT
THE URGENT DEFICIENCIES ACT BE MADE APPLICABLE TO THE DETERMINATION OF
THE VALIDITY OF SUCH ORDERS.  FN9 

FOURTH.  THE ABSENCE IN THE RAILWAY MAIL PAY ACT OF A PROVISION FOR
JUDICIAL REVIEW AND THE DENIAL OF JURISDICTION UNDER THE URGENT
DEFICIENCIES ACT DO NOT PRECLUDE EVERY CHARACTER OF JUDICIAL REVIEW. 
IF THE COMMISSION MAKES THE APPROPRIATE FINDING OF REASONABLE
COMPENSATION BUT FAILS, BECAUSE OF AN ALLEGED ERROR OF LAW, TO ORDER
PAYMENT OF THE FULL AMOUNT WHICH THE RAILROAD BELIEVES IS PAYABLE UNDER
THE FINDING, THE COURT OF CLAIMS HAS JURISDICTION OF AN ACTION FOR THE
BALANCE, AS THE CLAIM ASSERTED IS ONE FOUNDED UPON A LAW OF CONGRESS. 
MISSOURI PACIFIC R. CO. V. UNITED STATES, 271 U.S. 603.  COMPARE UNITED
STATES V. NEW YORK CENTRAL R. CO., 279 U.S. 73, AFFIRMING 65 CT. CL.
115, 121.  FN10  AND SINCE RAILWAY MAIL SERVICE IS COMPULSORY, THE
COURT OF CLAIMS WOULD, UNDER THE GENERAL PROVISIONS OF THE TUCKER ACT,
HAVE JURISDICTION ALSO OF AN ACTION FOR ADDITIONAL COMPENSATION IF AN
ORDER IS CONFISCATORY.  UNITED STATES V. GREAT FALLS MFG. CO., 112 U.S.
645; NORTH AMERICAN TRANSPORTATION & TRADING CO. V. UNITED STATES, 253
U.S. 330, 333; JACOBS V. UNITED STATES, 290 U.S. 13, 16.  MOREOVER, AS
DISTRICT COURTS HAVE JURISDICTION OF EVERY SUIT AT LAW OR IN EQUITY
"ARISING UNDER THE POSTAL LAWS," 28 U.S.C., SEC. 41(6), SUIT WOULD LIE
UNDER THEIR GENERAL JURISDICTION IF THE COMMISSION IS ALLEGED TO HAVE
ACTED IN EXCESS OF ITS AUTHORITY, OR OTHERWISE ILLEGALLY.  COMPARE
POWELL V. UNITED STATES, 300 U.S. 276, 288, 289.  BUT A SUIT UNDER THE
URGENT DEFICIENCIES ACT TO SET ASIDE AN ORDER CONCERNING MAIL PAY IS
NOT PRIMARILY ONE AGAINST THE COMMISSION.  PRIMARILY, IT IS A SUIT
AGAINST THE UNITED STATES.  FN11  AND THE UNITED STATES CAN BE SUED
ONLY WHEN AUTHORITY SO TO DO HAS BEEN SPECIFICALLY CONFERRED. 

THE RAILWAY MAIL PAY ACT DOES NOT CONFER THAT AUTHORITY. 

DECREE REVERSED - WITH DIRECTION TO THE DISTRICT COURT TO DISMISS THE
BILL WITHOUT COSTS TO EITHER PARTY.  REVERSED. 

FN1  "THE POSTMASTER GENERAL IS AUTHORIZED AND DIRECTED TO ADJUST THE
COMPENSATION TO BE PAID TO RAILROAD COMPANIES FOR THE TRANSPORTATION
AND HANDLING OF THE MAILS AND FURNISHING FACILITIES AND SERVICES IN
CONNECTION THEREWITH UPON THE CONDITIONS AND THE RATES HEREINAFTER
PROVIDED."  39 U.S.C. SEC. 524. 

"ALL RAILWAY COMMON CARRIERS ARE HEREBY REQUIRED TO TRANSPORT SUCH
MAIL MATTER AS MAY BE OFFERED FOR TRANSPORTATION BY THE UNITED STATES
IN THE MANNER, UNDER THE CONDITIONS, AND WITH THE SERVICE PRESCRIBED BY
THE POSTMASTER GENERAL AND SHALL BE ENTITLED TO RECEIVE FAIR AND
REASONABLE COMPENSATION FOR SUCH TRANSPORTATION AND FOR THE SERVICE
CONNECTED THEREWITH."  39 U.S.C. SEC. 541. 

FN2  PRIOR TO THE ACT OF 1916, THE CARRIAGE OF MAIL BY RAILROADS -
WITH THE EXCEPTION OF SOME AIDED BY LAND GRANT - WAS HELD TO BE NOT
COMPULSORY "AT ADEQUATE COMPENSATION TO BE JUDICIALLY DETERMINED,"
ATCHISON, T. & S.F. RY. V. UNITED STATES, 225 U.S. 640, 650, BUT UNDER
CONTRACTS VOLUNTARILY ENTERED INTO WITH THE POSTMASTER GENERAL.  NEW
YORK, N.H. & H.R. CO. V. UNITED STATES, 251 U.S. 123, 127.  FOR THE
LEGISLATION PRIOR TO 1916 CONCERNING COMPENSATION OF RAILROADS FOR
CARRYING THE MAIL, SEE RAILWAY MAIL PAY, 56 I.C.C. 1, 3-7.  FOR THE
SEVERAL PROPOSALS PRIOR TO 1916 TO MODIFY THE LAWS GOVERNING SUCH
TRANSPORTATION, SEE REPORT OF POSTMASTER GENERAL TO CONGRESS AUGUST 12,
1911, H.R. DOC. 105, 62D CONGRESS, 1ST SESSION; SENATE BILL 7371, HOUSE
BILL 23721, 62D CONGRESS, 2D SESSION; RAILWAY MAIL PAY, REPORT OF JOINT
COMMITTEE ON COMPENSATION FOR THE TRANSPORTATION OF THE MAIL, AUGUST
31, 1914, H.R. DOC. 1155, 63D CONGRESS, 2D SESSION; SENATE BILL 6405,
HOUSE BILL 17042, 63D CONGRESS, 2D SESSION; SENATE BILL 4175, HOUSE
BILL 10242, 64TH CONGRESS, 1ST SESSION. 

FN3  SECTION 544 PROVIDES:  "THE PROCEDURE FOR THE ASCERTAINMENT OF
THE RATES AND COMPENSATION SHALL BE AS PROVIDED IN SECTIONS 545 TO 554
OF THIS TITLE"; AND SEC. 554 PROVIDES:  "FOR THE PURPOSES OF SECTIONS
524 TO 568 OF THIS TITLE THE INTERSTATE COMMERCE COMMISSION IS HEREBY
VESTED WITH ALL THE POWERS WHICH IT IS AUTHORIZED BY LAW TO EXERCISE IN
THE INVESTIGATION AND ASCERTAINMENT OF THE JUSTNESS AND REASONABLENESS
OF FREIGHT, PASSENGER, AND EXPRESS RATES TO BE PAID BY PRIVATE
SHIPPERS." 

FN4  THE FIRST ORDER FIXING COMPENSATION FOR TRANSPORTATION OF MAIL
WAS MADE BY THE COMMISSION DECEMBER 23, 1919.  RAILWAY MAIL PAY, 56
I.C.C. 1.  BY IT RATES WERE FIXED ON THE GENERAL SYSTEM OF FLAT RATES
ON A SPACE BASIS, WITH HIGHER RATES FOR CERTAIN SHORT LINES LESS THAN
100 MILES IN LENGTH.  SINCE THEN THE COMMISSION HAS MADE ORDERS ON
APPLICATIONS FOR RE-EXAMINATION UNDER 39 U.S.C. SEC. 553, IN MANY
CASES.  RAILWAY MAIL PAY, NEW ENGLAND LINES, 85 I.C.C. 157, ON
REARGUMENT, 95 I.C.C. 204, 104 I.C.C. 521; RAILWAY MAIL PAY, CERTAIN
INTERMOUNTAIN AND PACIFIC COAST SHORT-LINE RAILROADS, 95 I.C.C. 493, ON
REARGUMENT, 104 I.C.C. 521; RAILWAY MAIL PAY, WOODSTOCK RY. CO. ET AL.,
96 I.C.C. 43, ON REARGUMENT, 104 I.C.C. 521; RAILWAY MAIL PAY, CANADIAN
NAT. RY. ET AL., 109 I.C.C. 13; RAILWAY MAIL PAY, ALABAMA, TENN. & NO.
RY., 112 I.C.C. 151; RAILWAY MAIL PAY, CERTAIN INTERMOUNTAIN AND
PACIFIC COAST SHORT LINE RAILROADS, 120 I.C.C. 439, ON RECONSIDERATION,
151 I.C.C. 734; RAILWAY MAIL PAY, WINSTON-SALEM SOUTHBOUND RY., 123
I.C.C. 33; RAILWAY MAIL PAY, 144 I.C.C. 675; RAILWAY MAIL PAY, 151
I.C.C. 734; RAILWAY MAIL PAY, GEORGIA & FLORIDA R., 192 I.C.C. 779, ON
REHEARING, 214 I.C.C. 66. 

A NUMBER OF OTHER DECISIONS RELATING TO RAILWAY MAIL PAY HAVE ALSO
BEEN MADE.  RAILWAY MAIL PAY, CERTAIN SHORT LINES, 165 I.C.C. 774;
RAILWAY MAIL PAY, JACKSONVILLE & H.R. ET AL., 174 I.C.C. 781; RAILWAY
MAIL PAY, ILLINOIS TERMINAL CO., 174 I.C.C. 796; RAILWAY MAIL PAY,
MACON, D. & S.R. ET AL., 185 I.C.C. 715; RAILWAY MAIL PAY, N.J. &
N.Y.R., 198 I.C.C. 504; RAILWAY MAIL PAY, PIEDMONT & NO. RY., 216
I.C.C. 467. 

SIMILAR ORDERS HAVE BEEN ENTERED UNDER THE ELECTRIC RAILWAY MAIL PAY
ACT, 40 STAT. 742, 748.  ELECTRIC RAILWAY MAIL PAY, 58 I.C.C. 455;
ELECTRIC RAILWAY MAIL PAY, 98 I.C.C. 737.  COMPARE TRANSMISSION OF MAIL
BY PNEUMATIC TUBES IN THE CITY OF NEW YORK, 85 I.C.C. 207. 

FN5  BALTIMORE & OHIO R. CO. V. UNITED STATES, 293 U.S. 454; UNITED
STATES V. ILLINOIS CENTRAL R. CO., 291 U.S. 457; COMPARE MISSISSIPPI
VALLEY BARGE LINE CO. V. UNITED STATES, 292 U.S. 282. 

FN6  COMPARE UNITED STATES V. ILLINOIS CENTRAL R. CO., 244 U.S. 82;
DELAWARE & HUDSON CO. V. UNITED STATES, 266 U.S. 438; UNITED STATES V.
ATLANTA, B. & C.R. CO., 282 U.S. 522. 

FN7  AMONG THE STATUTES DELEGATING TO THE COMMISSION ADMINISTRATIVE
DUTIES IN ADDITION TO THOSE WHICH IT PERFORMS UNDER THE INTERSTATE
COMMERCE ACT ARE:  POSTAL SERVICE:  RAILWAY MAIL PAY ACT, 39 STAT. 412,
425, 430; ELECTRIC RAILWAY MAIL PAY ACT, 40 STAT. 742, 748; NEW YORK
CITY PNEUMATIC TUBE MAIL PAY ACT, 42 STAT. 652, 661; FOURTH CLASS MAIL
REGULATIONS ACT, 43 STAT. 1053, 1067, AS AMENDED, 45 STAT. 940, 942;
AIR MAIL ACT, 48 STAT. 933, 935, AS AMENDED, 48 STAT. 1243, 49 STAT.
614.  RAILROAD OPERATION:  SAFETY APPLIANCE ACT, 27 STAT. 531, AS
AMENDED, 32 STAT. 943, 36 STAT. 298; BOILER INSPECTION ACT, 36 STAT.
913, 914, AS AMENDED, 38 STAT. 1192, 43 STAT. 659; LOCOMOTIVE ASH PAN
ACT, 35 STAT. 476; ACCIDENT INVESTIGATION ACT, 36 STAT. 350, 351; HOURS
OF SERVICE ACT, 34 STAT. 1415; RAILWAY LABOR ACT, 44 STAT. 577, AS
AMENDED, 48 STAT. 1185, 49 STAT. 1189; TRANSPORTATION ACT OF 1920,
TITLE II, 41 STAT. 456, 457, AS AMENDED, 44 STAT. 1450; EMERGENCY
RAILROAD TRANSPORTATION ACT OF 1933, 48 STAT. 211, 216, AS AMENDED, 49
STAT. 376.  RAILROAD FINANCE:  CLAYTON ANTITRUST ACT, 38 STAT. 730,
734, AS AMENDED, 43 STAT. 939, 48 STAT. 1102; RECONSTRUCTION FINANCE
CORPORATION ACT, 47 STAT. 711, AS AMENDED, 48 STAT. 20, 99, 120, 1109,
49 STAT. 1, 796, 50 STAT. 5, 357; BANKRUPTCY ACT, SEC. 77, 47 STAT.
1474, AS AMENDED, 49 STAT. 911, 1969.  MISCELLANEOUS:  TRANSPORTATION
OF EXPLOSIVES ACT (CRIMINAL CODE, SEC. 233), 35 STAT. 554, 555, AS
AMENDED, 35 STAT. 1088, 1135, 41 STAT. 1445; STANDARD TIME ZONE ACT, 40
STAT. 450; ST. LOUIS BRIDGE ACT, 43 STAT. 7, 8; INLAND WATERWAYS
CORPORATION ACT, 43 STAT. 360, AS AMENDED, 45 STAT. 978, 48 STAT. 968,
49 STAT. 958; RADIO ACT OF 1927, 44 STAT. 1162, 1173, SUPERSEDED BY 48
STAT. 1064; MOTOR CARRIER ACT OF 1935, 49 STAT. 543, 550. 

ALTHOUGH ENACTED AS PART II OF THE INTERSTATE COMMERCE ACT, THE MOTOR
CARRIER ACT OF 1935 IS INCLUDED IN THIS LIST BECAUSE IT SEEMS MORE
PROPERLY CLASSIFIED AS A COMPLETE AND INDEPENDENT STATUTE THAN AS
MERELY AN AMENDMENT TO THE ACT OF 1887. 

FN8  COMPARE MERCHANT MARINE ACT OF 1936, 49 STAT. 1985, 1987(UNITED
STATES MARITIME COMMISSION).  A SIMILAR PROCEDURE HAS ALSO BEEN
PROVIDED FOR CERTAIN SUITS TO ENJOIN THE ENFORCEMENT OR OPERATION OF
STATE AND FEDERAL STATUTES ON THE GROUND THAT THEY ARE
UNCONSTITUTIONAL.  JUDICIAL CODE, SEC. 266, 36 STAT. 557, 1162, AS
AMENDED, 37 STAT. 1013, 43 STAT. 938; JUDICIARY ACT OF 1937, 50 STAT.
751, 752. 

FN9  THE PROVISION CALLING FOR THE INTERSTATE COMMERCE COMMISSION TO
FIX THE RATES AT WHICH THE MAIL IS TO BE CARRIED WAS INTRODUCED IN THE
SENATE AS AN AMENDMENT TO THE BILL BY SENATOR CUMMINS OF IOWA.  IN
ANSWER TO QUESTIONS AS TO "WHETHER THE AMENDMENT PROVIDES FOR AN APPEAL
IN THIS CASE AS IN OTHER RATE-MAKING CASES BEFORE THE INTERSTATE
COMMERCE COMMISSION," HE STATED:  "I THINK IT WOULD PERMIT THE SAME
REVIEW....  THERE WOULD BE THE SAME REMEDY PRECISELY UNDER MY AMENDMENT
FOR THE RAILWAY COMPANIES THAT NOW EXISTS IN THE CASE OF THE
ESTABLISHMENT OF A RATE FOR A PRIVATE SHIPPER....  IT IS PROVIDED FOR
IN JUST THE SAME WAY THE PRESENT LAW DOES."  53 CONG. REC., 9694-95. 
NO FURTHER REFERENCE TO JUDICIAL REVIEW OCCURS IN THE DEBATES ON THIS
PROVISION IN EITHER HOUSE; AND NO REFERENCE TO JUDICIAL REVIEW WAS MADE
IN THE REPORT OF THE COMMITTEE OF EITHER HOUSE, NOR IN THAT OF THE
CONFERENCE COMMITTEE WHOSE RECOMMENDATIONS WERE ADOPTED.  SEE SEN. REP.
459, H.R. REP. 91, H.R. REP. 981, 64TH CONG., 1ST SESS. 

FN10  OTHER DECISIONS OF THE COURT OF CLAIMS UNDER THE RAILWAY MAIL
PAY ACT OF 1916 ARE: CHICAGO & E.I. RY. V. UNITED STATES, 63 CT. CL.
585; NEVADA COUNTY N.G.R. CO. V. UNITED STATES, 65 CT. CL. 327; CHICAGO
& E.I. RY. CO. V. UNITED STATES, 72 CT. CL. 407; MACON, D. & S.R. CO.
V. UNITED STATES, 78 CT. CL. 251; 79 CT. CL. 298.  COMPARE PERE
MARQUETTE RY. CO. V. UNITED STATES, 59 CT. CL. 538; NEW JERSEY & N.Y.R.
CO. V. UNITED STATES, 80 CT. CL. 243 

FN11  COMPARE JUDICIAL CODE SEC. 211, 36 STAT. 542, 1150, AS AMENDED,
38 STAT. 219, 28 U.S.C. SEC. 48; LAMBERT RUN COAL CO. V. BALTIMORE &
OHIO R. CO., 258 U.S. 377, 382. 

MR. JUSTICE BLACK AGREES WITH THE RESULT AND FULLY WITH ALL OF THE
OPINION EXCEPT PARAGRAPH FOURTH. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :


















U.S. V. ILLINOIS CENT. R. CO., 303 U.S. 239 


NO. 352.  ARGUED JANUARY 14, 17, 1938.  - DECIDED FEBRUARY 28, 1938.  -
90 F.(2D) 213, REVERSED. 


CATTLE IN A RAILWAY CAR WERE BROUGHT TO THE PLACE WHERE THEY WERE TO
BE UNLOADED FOR WATER, FEED AND REST, AS REQUIRED BY THE ACT OF JUNE
29, 1906, ARRIVING THERE BEFORE THE PERIOD ALLOWED BY THE ACT FOR THEIR
CONTINUOUS CONFINEMENT IN THE CAR HAD EXPIRED, BUT UNLOADING WAS
DELAYED BEYOND THAT PERIOD OWING TO THE FACT THAT THE CARRIER'S
YARDMASTER, AWARE OF THE SITUATION, NEGLIGENTLY FAILED TO NOTIFY
ANOTHER EMPLOYEE OF THE CARRIER WHOSE DUTY IT WAS TO UNLOAD THEM.  HELD
THAT THE CARRIER "KNOWINGLY AND WILLFULLY" FAILED TO COMPLY WITH THE
STATUTE AND WAS SUBJECT TO THE PENALTY THEREBY PRESCRIBED.  P. 242. 

IN STATUTES DENOUNCING OFFENSES INVOLVING TURPITUDE, "WILLFULLY" IS
GENERALLY USED TO MEAN WITH EVIL PURPOSE, CRIMINAL INTENT OR THE LIKE;
BUT IN THOSE DENOUNCING ACTS NOT IN THEMSELVES WRONG IT OFTEN DENOTES
CONDUCT WHICH IS INTENTIONAL, OR KNOWING, OR VOLUNTARY, AS
DISTINGUISHED FROM ACCIDENTAL, OR CONDUCT MARKED BY CARELESS DISREGARD
OF ITS RIGHTFULNESS. 

UNITED STATES V. ILLINOIS CENTRAL RAILROAD CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 302 U.S. 671, TO REVIEW THE AFFIRMANCE OF A JUDGMENT FOR
THE RAILROAD COMPANY IN AN ACTION BY THE UNITED STATES TO RECOVER A
PENALTY. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS SUIT IN THE FEDERAL COURT FOR EASTERN
LOUISIANA TO RECOVER FROM RESPONDENT A PENALTY FOR VIOLATION OF THE ACT
OF JUNE 29, 1906, 34 STAT. 607, 45 U.S.C. SECS. 71-74.  UPON AN AGREED
STATEMENT, THE COURT FOUND THE FACTS, STATED ITS CONCLUSIONS OF LAW AND
GAVE JUDGMENT FOR RESPONDENT.  THE CIRCUIT COURT OF APPEALS AFFIRMED. 
90 F.(2D) 213.  THIS COURT GRANTED A WRIT OF CERTIORARI.  302 U.S.
671. 

THE QUESTION FOR DECISION IS WHETHER, AS A MATTER OF LAW, THE FACTS
FOUND SHOW CONCLUSIVELY THAT RESPONDENT KNOWINGLY AND WILLFULLY FAILED
TO COMPLY WITH THE REQUIREMENTS OF THE FIRST SECTION OF THE ACT. 

IT DECLARES THAT NO CARRIER WHOSE ROAD FORMS A PART OF A LINE OVER
WHICH CATTLE SHALL BE CONVEYED FROM ONE STATE TO ANOTHER SHALL CONFINE
THE SAME IN CARS FOR LONGER THAN 28 CONSECUTIVE HOURS WITHOUT UNLOADING
THEM INTO PROPERLY EQUIPPED PENS FOR REST, WATER AND FEEDING UNLESS
PREVENTED BY STORM OR BY OTHER ACCIDENTAL AND UNAVOIDABLE CAUSES WHICH
CANNOT BE ANTICIPATED OR AVOIDED BY THE EXERCISE OF DUE DILIGENCE AND
FORESIGHT; UPON THE WRITTEN REQUEST OF THE OWNER THE TIME OF
CONFINEMENT MAY BE EXTENDED TO 36 HOURS.  SECTION 2 REQUIRES THAT
ANIMALS SO UNLOADED SHALL BE PROPERLY FED AND WATERED.  SECTION 3
PROVIDES:  "ANY RAILROAD  ...  WHO KNOWINGLY AND WILLFULLY FAILS TO
COMPLY WITH THE PROVISIONS OF THE TWO PRECEDING SECTIONS SHALL FOR
EVERY SUCH FAILURE BE LIABLE FOR AND FORFEIT AND PAY A PENALTY OF NOT
LESS THAN $100 NOR MORE THAN $500  ..."  RECOVERABLE BY CIVIL ACTION IN
THE NAME OF THE UNITED STATES.  SEC. 4. 

THE PETITION ALLEGED THAT RESPONDENT KNOWINGLY AND WILLFULLY CONFINED
CATTLE IN A CAR FOR 37 HOURS WITHOUT UNLOADING THEM.  THE ANSWER
ADMITTED THAT THE CATTLE WERE CONTINUOUSLY CONFINED IN THE CAR FROM
THREE O'CLOCK IN THE AFTERNOON OF OCTOBER 8, 1932, WHEN LOADED AT POINT
OF SHIPMENT, HERMANVILLE, MISSISSIPPI, UNTIL FOUR O'CLOCK OF THE
MORNING OF OCTOBER 10 WHEN UNLOADED AT DESTINATION, NEW ORLEANS,
LOUISIANA, BUT DIRECTLY PUT IN ISSUE THE ALLEGATION THAT RESPONDENT
KNOWINGLY AND WILLFULLY SO CONFINED THE CATTLE.  IT ALLEGED THAT THE
CAR ARRIVED AT NEW ORLEANS AT 11:35 IN THE EVENING OF OCTOBER 9; THAT
HAVING RECEIVED ADVANCE INFORMATION OF THE APPROXIMATE TIME OF ARRIVAL
AND OF THE TIME WHEN THE 36-HOUR PERIOD WOULD EXPIRE, RESPONDENT'S
YARDMASTER, IN ORDER PROMPTLY TO HANDLE THE SHIPMENT, PROCURED AN EXTRA
ENGINE AND CREW IMMEDIATELY UPON ARRIVAL OF THE CAR TO TAKE IT TO THE
STOCKYARDS AND, BEFORE THE EXPIRATION OF THE PERMISSIBLE TIME OF
CONFINEMENT, THERE PLACE IT FOR UNLOADING; THAT THE YARDMASTER
NEGLIGENTLY FAILED TO NOTIFY THE EMPLOYEE, WHOSE DUTY IT WAS TO UNLOAD;
AND BECAUSE OF HIS OVERSIGHT AND NEGLIGENCE THE CATTLE WERE
CONTINUOUSLY CONFINED IN THE CAR FOR 37 HOURS. 

A MOTION BY PETITIONER FOR JUDGMENT ON THE PLEADINGS HAVING BEEN
OVERRULED, THE PARTIES WAIVED TRIAL BY JURY AND STIPULATED EVIDENTIARY
FACTS IN SUBSTANCE AS ALLEGED IN THE ANSWER.  THEY LEFT OPEN THE
QUESTION WHETHER RESPONDENT KNOWINGLY AND WILLFULLY CONFINED THE CATTLE
FOR MORE THAN 36 HOURS.  THE CASE WAS SUBMITTED FOR DECISION ON THE
AGREED STATEMENT WITHOUT MORE.  THE COURT FOUND EVIDENTIARY FACTS IN
ACCORDANCE WITH THE STIPULATION, HELD FAILURE TO UNLOAD WITHIN THE TIME
WAS DUE TO THE NEGLIGENCE OF THE YARDMASTER, AND CONCLUDED THAT
RESPONDENT DID NOT KNOWINGLY AND WILLFULLY FAIL TO COMPLY WITH THE
STATUTE. 

THE CASE DEPENDS UPON THE MEANING OF THE PHRASE "KNOWINGLY AND
WILLFULLY," USED IN SEC. 3 TO CHARACTERIZE THE TRANSGRESSIONS FOR WHICH
PENALTIES ARE IMPOSED.  THE ACT IS TO BE CONSTRUED TO GIVE EFFECT TO
ITS HUMANITARIAN PROVISIONS, AND AS WELL TO THE EXCEPTIONS IN FAVOR OF
THE CARRIERS.  CHICAGO & N.W. RY. CO. V. UNITED STATES, 246 U.S. 512,
517-518.  THE PENALTY IS NOT IMPOSED FOR UNWITTING FAILURE TO COMPLY
WITH THE STATUTE.  UNITED STATES V. SIOUX CITY STOCK YARDS CO., 162
FED. 556, 562.  UNITED STATES V. STOCKYARDS TERMINAL RY. CO., 178 FED.
19, 23.  ST. JOSEPH STOCKYARDS CO. V. UNITED STATES, 187 FED. 104;
OREGON-WASHINGTON R. & NAV. CO. V. UNITED STATES, 205 FED. 341, 343. 
BUT IN THIS CASE, THE RESPONDENT KNEW WHEN THE PERMISSIBLE PERIOD OF
CONFINEMENT WOULD EXPIRE, BROUGHT THE CAR TO DESTINATION, AND, WITHIN
THE TIME ALLOWED, PLACED IT FOR UNLOADING.  BY ALLOWING THE 36 HOURS TO
EXPIRE, IT "KNOWINGLY" FAILED TO COMPLY WITH THE STATUTE. 

MERE OMISSION WITH KNOWLEDGE OF THE FACTS IS NOT ENOUGH.  THE PENALTY
MAY NOT BE RECOVERED UNLESS THE CARRIER IS ALSO SHOWN "WILLFULLY" TO
HAVE FAILED.  IN STATUTES DENOUNCING OFFENSES INVOLVING TURPITUDE,
"WILLFULLY" IS GENERALLY USED TO MEAN WITH EVIL PURPOSE, CRIMINAL
INTENT OR THE LIKE.  BUT IN THOSE DENOUNCING ACTS NOT IN THEMSELVES
WRONG, THE WORD IS OFTEN USED WITHOUT ANY SUCH IMPLICATION.  OUR
OPINION IN UNITED STATES V. MURDOCK, 290 U.S. 389, 394, SHOWS THAT IT
OFTEN DENOTES THAT WHICH IS "INTENTIONAL, OR KNOWING, OR VOLUNTARY, AS
DISTINGUISHED FROM ACCIDENTAL," AND THAT IT IS EMPLOYED TO CHARACTERIZE
"CONDUCT MARKED BY CARELESS DISREGARD WHETHER OR NOT ONE HAS THE RIGHT
SO TO ACT."  THE SIGNIFICANCE OF THE WORD "WILLFULLY" AS USED IN SEC. 3
NOW BEFORE US, WAS CAREFULLY CONSIDERED BY THE CIRCUIT COURT OF APPEALS
FOR THE EIGHTH CIRCUIT IN ST. LOUIS & S.F.R. CO. V. UNITED STATES, 169
FED. 69.  SPEAKING THROUGH CIRCUIT JUDGE VAN DEVANTER, NOW MR. JUSTICE
VAN DEVANTER, THE COURT SAID (P. 71):  "'WILLFULLY' MEANS SOMETHING NOT
EXPRESSED BY 'KNOWINGLY,' ELSE BOTH WOULD NOT BE USED CONJUNCTIVELY....
BUT IT DOES NOT MEAN WITH INTENT TO INJURE THE CATTLE OR TO INFLICT
LOSS UPON THEIR OWNER BECAUSE SUCH INTENT ON THE PART OF A CARRIER IS
HARDLY WITHIN THE PALE OF ACTUAL EXPERIENCE OR REASONABLE
SUPPOSITION....  SO, GIVING EFFECT TO THESE CONSIDERATIONS, WE ARE
PERSUADED THAT IT MEANS PURPOSELY OR OBSTINATELY AND IS DESIGNED TO
DESCRIBE THE ATTITUDE OF A CARRIER, WHO, HAVING A FREE WILL OR CHOICE,
EITHER INTENTIONALLY DISREGARDS THE STATUTE OR IS PLAINLY INDIFFERENT
TO ITS REQUIREMENTS."  THAT STATEMENT HAS BEEN FOUND A USEFUL GUIDE TO
THE MEANING OF THE WORD "WILLFULLY" AND TO ITS RIGHT APPLICATION IN
SUITS FOR PENALTIES UNDER SEC. 3.  UNITED STATES V. STOCKYARDS TERMINAL
RY. CO., SUPRA, 23.  ST. JOSEPH STOCKYARDS CO. V. UNITED STATES, SUPRA,
105.  OREGON-WASHINGTON R. & NAV. CO. V. UNITED STATES, 205 FED. 337,
339.  ST. LOUIS MERCHANTS' BRIDGE T. RY. CO. V. UNITED STATES, 209 FED.
600.  SEE ALSO CHICAGO, B. & Q.R. CO. V. UNITED STATES, 194 FED. 342,
346.  UNITED STATES V. KANSAS CITY SOUTHERN RY. CO., 202 FED. 828,
833. 

CONSIDERED AS UNAFFECTED BY THE YARDMASTER'S NEGLIGENCE, RESPONDENT'S
FAILURE TO TAKE THE CATTLE FROM THE CAR ALREADY PLACED AT THE YARD FOR
UNLOADING, UNQUESTIONABLY DISCLOSES DISREGARD OF THE STATUTE AND
INDIFFERENCE TO ITS REQUIREMENTS AND COMPELS THE CONCLUSION THAT,
WITHIN THE MEANING OF SEC. 3, RESPONDENT WILLFULLY VIOLATED ITS DUTY TO
UNLOAD AS REQUIRED BY SEC. 1.  IT IS IMMATERIAL WHETHER THE
YARDMASTER'S NEGLIGENCE OR OVERSIGHT WAS INTENTIONAL OR EXCUSABLE.  AS
BETWEEN THE GOVERNMENT AND RESPONDENT, THE LATTER'S BREACH IS PRECISELY
THE SAME IN KIND AND DEGREE AS IT WOULD HAVE BEEN IF ITS YARDMASTER'S
FAILURE HAD BEEN INTENTIONAL INSTEAD OF MERELY NEGLIGENT.  THE DUTY
VIOLATED DID NOT ARISE OUT OF THE RELATION OF EMPLOYER AND EMPLOYEE BUT
WAS ONE THAT, IN VIRTUE OF THE STATUTE, WAS OWED BY RESPONDENT TO THE
SHIPPERS AND THE PUBLIC.  AS RESPONDENT COULD ACT ONLY THROUGH
EMPLOYEES, IT IS RESPONSIBLE FOR THEIR FAILURE.  TO HOLD CARRIERS NOT
LIABLE FOR PENALTIES WHERE THE VIOLATIONS OF SECS. 1 AND 2 ARE DUE TO
MERE INDIFFERENCE, INADVERTENCE OR NEGLIGENCE OF EMPLOYEES WOULD DEFEAT
THE PURPOSE OF SEC. 3.  WHETHER RESPONDENT KNOWINGLY AND WILLFULLY
FAILED IS TO BE DETERMINED BY THE ACTS AND OMISSIONS WHICH CHARACTERIZE
ITS VIOLATION OF THE STATUTE AND NOT UPON ANY BREACH OF DUTY OWED TO IT
BY ITS EMPLOYEES.  RESPONDENT'S CONTENTION THAT IT IS NOT LIABLE
BECAUSE ITS FAILURE WAS DUE TO THE NEGLIGENCE OR OVERSIGHT OF THE
YARDMASTER CANNOT BE SUSTAINED.  MONTANA CENT. RY. CO. V. UNITED
STATES, 164 FED. 400, 403.  UNITED STATES V. ATLANTIC COAST LINE R.
CO., 173 FED. 764, 769.  CF. OREGON-WASHINGTON R. & NAV. CO. V. UNITED
STATES, 205 FED. 337, 340.  REVERSED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :


















MCCOLLUM V. HAMILTON NAT. BANK, 303 U.S. 245 


NO. 342.  ARGUED JANUARY 31, 1938.  - DECIDED FEBRUARY 28, 1938.  -
REVERSED. 


REV. STATS. SEC. 5197 GOVERNS THE RATES OF INTEREST CHARGEABLE BY
NATIONAL BANKS, AND SEC. 5198 PROVIDES THAT, IF A GREATER RATE HAS BEEN
PAID, THE PERSON PAYING IT, OR HIS LEGAL REPRESENTATIVE, MAY RECOVER
TWICE THE AMOUNT FROM THE BANK.  WHERE THE PERSON ENTITLED BECAME
BANKRUPT AND THE ACTION AGAINST THE BANK WAS BY HIS TRUSTEE IN
BANKRUPTCY, THE STATE COURT FIRST GRANTED JUDGMENT FOR DOUBLE THE
USURIOUS INTEREST, BUT SET OFF THE JUDGMENT AGAINST THE BANKRUPT'S
INDEBTEDNESS TO THE BANK.  HELD: 

1.  ALTHOUGH THE FORM OF ACTION PRESCRIBED IS DEBT, THE CAUSE OF
ACTION IS EX DELICTO AND THE RECOVERY PUNITIVE; NO SET-OFF IS
PERMISSIBLE IN THE PROCEEDING, EITHER BEFORE OR AFTER JUDGMENT.  P.
247. 

2.  PUNISHMENT FOR USURY DOES NOT DEPEND UPON PAYMENT OF THE
BORROWER'S DEBT.  P. 249. 

MCCOLLUM, TRUSTEE IN BANKRUPTCY, V. HAMILTON NATIONAL BANK. 

CERTIORARI TO THE SUPREME COURT OF TENNESSEE. 

CERTIORARI, 302 U.S. 670, TO REVIEW THE AFFIRMANCE OF A DECREE
GRANTING RECOVERY TO A TRUSTEE IN BANKRUPTCY IN A SUIT AGAINST THE BANK
UNDER REV. STATS. SEC. 5198, BUT SETTING OFF THE JUDGMENT AGAINST THE
BANKRUPT'S DEBTS TO THE BANK. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

TO BE TAKEN BY NATIONAL BANKING ASSOCIATIONS AND SEC. 5198  FN2
DECLARES THAT THE RECEIVING OF A RATE OF INTEREST GREATER THAN THAT
ALLOWED, WHEN KNOWINGLY DONE, SHALL BE DEEMED A FORFEITURE OF THE
ENTIRE INTEREST AND PROVIDES THAT, IN CASE A GREATER RATE HAS BEEN
PAID, THE PERSON PAYING IT MAY RECOVER BACK TWICE THE AMOUNT, IN A SUIT
IN THE NATURE OF AN ACTION OF DEBT.  PETITIONER IS TRUSTEE IN
BANKRUPTCY OF LOOKOUT PLANING MILLS, A CORPORATION.  HE BROUGHT THIS
SUIT UNDER SEC. 5198 IN THE CHANCERY COURT OF HAMILTON COUNTY,
TENNESSEE, TO RECOVER FROM RESPONDENT THE PENALTY IMPOSED BY THAT
ALLEGED THE BANKRUPT OWED IT $25,493.70 ON NOTES, AND PRAYED THAT IT BE
ALLOWED TO SET OFF ITS CLAIM AGAINST ANY JUDGMENT THAT PETITIONER MIGHT
OBTAIN.  PETITIONER'S ANSWER TO THE CROSS-BILL ASSERTED THAT RECOVERY
OF THE PENALTY DID NOT DEPEND ON PAYMENT OF THE DEBT. 

THE CHANCELLOR FOUND THAT THE BANKRUPT PAID AND RESPONDENT KNOWINGLY
RECEIVED $5,235.55 AS INTEREST BASED ON A RATE IN EXCESS OF THAT
PERMITTED AND GAVE HIM JUDGMENT FOR DOUBLE THAT AMOUNT.  HE RULED THAT
AFTER JUDGMENT PETITIONER'S CLAIM WAS SUBJECT TO SET-OFF AND ORDERED
THAT THE AMOUNT AWARDED HIM BE APPLIED AS A CREDIT UPON THE DEBT.  THE
STATE SUPREME COURT HELD THE SET-OFF PERMISSIBLE UNDER THE BANKRUPTCY
ACT, SEC. 68(A), AND EXPRESSLY AUTHORIZED BY SEC. 8769 OF THE TENNESSEE
CODE AND DECLARED THAT PETITIONER WOULD BE REQUIRED TO DO EQUITY BY
HAVING HIS CLAIM CREDITED ON THE LARGER ONE OWING TO THE RESPONDENT BY
THE BANKRUPT. 

THE QUESTION IS WHETHER RESPONDENT IS ENTITLED TO HAVE THE AMOUNT OF
THE JUDGMENT FOR PENALTY CREDITED ON ITS CLAIM AGAINST THE BANKRUPT
ESTATE. 

WHEN THE BANK KNOWINGLY RECEIVED ILLEGAL INTEREST, IT IMMEDIATELY
BECAME LIABLE FOR, AND THE BORROWER BECAME ENTITLED TO RECOVER FROM IT,
A PENALTY OF TWICE THE AMOUNT OF THE INTEREST THUS PAID.  FARMERS' &
MECHANICS' NATIONAL BANK V. DEARING, 91 U.S. 29.  LAKE BENTON FIRST
NATIONAL BANK V. WATT, 184 U.S. 151.  UPON PETITIONER'S APPOINTMENT AS
TRUSTEE IN BANKRUPTCY, THE BANKRUPT'S RIGHT TO RECOVER THE PENALTY
VESTED IN HIM.  BANKRUPTCY ACT, SEC. 70(A), 11 U.S.C. SEC. 110(A). 
FIRST NATIONAL BANK V. LASATER, 196 U.S. 115, 118.  REED V. AMERICAN
GERMAN NAT. BANK, 155 FED. 233.  THE PENALTY IS TO BE ENFORCED
ACCORDING TO THE TERMS OF THE STATUTE.  GUILT BEING ESTABLISHED, THE
LAW ITSELF FIXES THE PUNISHMENT AT PRECISELY TWICE THE USURIOUS
EXACTION PAID; IT MAY NOT BE ENHANCED OR MITIGATED BECAUSE OF
AGGRAVATING CIRCUMSTANCES OR EQUITABLE CONSIDERATIONS.  AS THE SUM
DEMANDED IS CERTAIN, RECOVERY IN AN ACTION OF DEBT IS AUTHORIZED,
THOUGH THE CLAIM ARISES NOT IN CONTRACT BUT IN TORT.  CHAFFEE & CO. V.
UNITED STATES, 18 WALL.  516, 538.  THE LIABILITY CAN ONLY BE ENFORCED
IN AN ACTION "BROUGHT SPECIALLY AND EXCLUSIVELY FOR THAT PURPOSE,  -
WHERE THE SOLE ISSUE IS THE GUILT OR INNOCENCE OF THE ACCUSED, WITHOUT
THE PRESENCE OF ANY EXTRANEOUS FACTS WHICH MIGHT CONFUSE THE CASE." 
BARNET V. NATIONAL BANK, 98 U.S. 555, 559.  ONE PAYING A NATIONAL BANK
USURIOUS INTEREST AND ENTITLED TO ENFORCE THE PENALTY MAY NOT RECOVER
IT BY WAY OF SET-OFF IN A SUIT BROUGHT UPON HIS NOTE TO THE BANK. 
HASELTINE V. CENTRAL BANK, 183 U.S. 132, 137.  BARNET V. NATIONAL BANK,
SUPRA.  DREISBACH V. NATIONAL BANK, 104 U.S. 52.  STEPHENS V.
MONONGAHELA BANK, 111 U.S. 197.  SEE SCHUYLER NATIONAL BANK V. GADSDEN,
191 U.S. 451, 456. 

REASONS, AT LEAST AS COGENT AS THOSE THAT UPHOLD THAT RULE, SUPPORT
THE CONTENTION THAT THE STATE COURT ERRED IN PERMITTING RESPONDENT TO
CREDIT THE AMOUNT OF PETITIONER'S JUDGMENT FOR PENALTY UPON THE NOTES
GIVEN IT BY THE BANKRUPT.  TO ALLOW RESPONDENT TO SATISFY THE JUDGMENT
FOR PENALTY BY MERE DEDUCTION FROM ITS CLAIM AGAINST THE BANKRUPT'S
ESTATE IS TO DETRACT FROM THE PUNISHMENT DEFINITELY PRESCRIBED.  THE
SENTENCE SPECIFICALLY REQUIRED BY THE LAW MAY NOT BE CUT DOWN BY
IMPLICATION, SET-OFF OR CONSTRUCTION; FOR THAT WOULD NARROW THE STATUTE
AND TEND TO DEFEAT ITS PURPOSE.  SEE UNITED STATES V. WILTBERGER, 5
WHEAT.  76, 95.  FASULO V. UNITED STATES, 272 U.S. 620, 628. 

THE RIGHT OF SET-OFF HERE INVOLVED DOES NOT AT ALL DEPEND UPON THE
TENNESSEE STATUTE UPON WHICH, AT LEAST IN PART, THE STATE SUPREME COURT
RESTED ITS RULING.  SECTIONS 5197 AND 5198, REVISED STATUTES, DEFINE
PETITIONER'S RIGHT TO RECOVER, AND RESPONDENT'S LIABILITY FOR, THE
PENALTY; THE BANKRUPTCY ACT GOVERNS LIQUIDATION AND DISTRIBUTION OF THE
BANKRUPT'S ESTATE.  IT RESULTS THAT THE VALIDITY OF THE CHALLENGED
PROVISION OF THE DECREE DEPENDS UPON THE RIGHT OF SET-OFF IN
BANKRUPTCY.  BANKRUPTCY ACT, SEC. 68(A), 11 U.S.C. SEC. 108(A).  CF.
YATES V. JONES NATIONAL BANK, 206 U.S. 158, 179.  FARMERS' & MECHANICS'
NATIONAL BANK V. DEARING, SUPRA.  MCDANIEL NATIONAL BANK V. BRIDWELL,
74 F.(2D) 331. 

CREDITS BETWEEN THE ESTATE OF A BANKRUPT AND A CREDITOR THE ACCOUNT
SHALL BE STATED AND ONE DEBT SHALL BE SET OFF AGAINST THE OTHER, AND
THE BALANCE ONLY SHALL BE ALLOWED AND PAID."  THE WORDS "DEBTS" AND
"CREDITS" AS THERE USED ARE CORRELATIVE.  WHAT IS A DEBT ON ONE SIDE IS
A CREDIT ON THE OTHER.  LIBBY V. HOPKINS, 104 U.S. 303, 309.  LIABILITY
FOR THE PENALTY DOES NOT ARISE IN CONTRACT BUT IS LAID IN INVITUM AS A
DISCIPLINARY MEASURE.  NOR DOES THE JUDGMENT DETERMINING THE EXTENT OF
GUILT AND DECLARING SENTENCE CHANGE THE LIABILITY FOR PENALTY TO ONE
FOR DEBT.  CHASE V. CURTIS, 113 U.S. 452, 463-464.  BOYNTON V. HALL,
121 U.S. 457, 465-466. 

AS THE PENALTY MAY BE ENFORCED ONLY IN A SUIT BROUGHT EXCLUSIVELY FOR
THAT PURPOSE SO THAT THE TRIAL OF GUILT OR INNOCENCE MAY NOT BE
EMBARRASSED BY ANY OTHER QUESTION, IT IS PLAIN THAT THE PAYMENT OF ANY
DEBT OWED BY THE PLAINTIFF TO THE BANK MAY NOT BE HELD A CONDITION
PRECEDENT TO THE DETERMINATION OF THAT ISSUE.  PUNISHMENT FOR USURY
DOES NOT DEPEND UPON PAYMENT OF THE BORROWER'S DEBT.  IT FOLLOWS THAT
RESPONDENT IS NOT ENTITLED TO SATISFY PETITIONER'S JUDGMENT BY
DEDUCTING THE AMOUNT OF IT FROM RESPONDENT'S CLAIM AGAINST THE
BANKRUPT'S ESTATE.  MEREDITH V. AMERICAN NATIONAL BANK, 127 TENN. 90,
94; 153 S.W. 479.  EXETER NATIONAL BANK V. ORCHARD, 43 NEB. 579, 582;
61 N.W. 833.  MOREHOUSE V. SECOND NATIONAL BANK, 30 HUN 628.  REASON,
WELL SUPPORTED BY AUTHORITY, REQUIRES THAT THE PENALTY FOR USURY SO
SPECIFICALLY PRESCRIBED SHALL BE PAID ACCORDING TO THE TERMS OF THE
STATUTE.  REVERSED. 

FN1  12 U.S.C., SEC. 85. 

FN2 12 U.S.C., SEC. 86:  "THE TAKING, RECEIVING, RESERVING, OR
CHARGING A RATE OF INTEREST GREATER THAN IS ALLOWED BY THE PRECEDING
ENTIRE INTEREST WHICH THE NOTE, BILL, OR OTHER EVIDENCE OF DEBT CARRIES
WITH IT, OR WHICH HAS BEEN AGREED TO BE PAID THEREON.  IN CASE THE
GREATER RATE OF INTEREST HAS BEEN PAID, THE PERSON BY WHOM IT HAS BEEN
PAID, OR HIS LEGAL REPRESENTATIVES, MAY RECOVER BACK, IN AN ACTION IN
THE NATURE OF AN ACTION OF DEBT, TWICE THE AMOUNT OF THE INTEREST THUS
PAID FROM THE ASSOCIATION TAKING OR RECEIVING THE SAME:  PROVIDED, THAT
SUCH ACTION IS COMMENCED WITHIN TWO YEARS FROM THE TIME THE USURIOUS
TRANSACTION OCCURRED." 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




WESTERN LIVE STOCK V. BUREAU, 303 U.S. 250 


NO. 322.  ARGUED JANUARY 31, 1938.  - DECIDED FEBRUARY 28, 1938.  - 41
N.M. 288 -  67 P.2D 505, AFFIRMED. 


1.  THE MERE FORMATION OF A CONTRACT BETWEEN PERSONS OF DIFFERENT
STATES IS NOT WITHIN THE PROTECTION OF THE COMMERCE CLAUSE, UNLESS THE
PERFORMANCE IS WITHIN ITS PROTECTION, AT LEAST IN THE ABSENCE OF
CONGRESSIONAL ACTION.  P. 253. 

2.  TAXATION OF A LOCAL BUSINESS OR OCCUPATION WHICH IS SEPARATE AND
DISTINCT FROM THE TRANSPORTATION AND INTERCOURSE WHICH ARE INTERSTATE
COMMERCE IS NOT FORBIDDEN MERELY BECAUSE, IN THE ORDINARY COURSE, SUCH
TRANSPORTATION OR INTERCOURSE IS INDUCED OR OCCASIONED BY THE
BUSINESS.  P. 253. 

3.  A STATUTE OF NEW MEXICO LEVIED ON ALL ENGAGED WITHIN THE STATE IN
THE BUSINESS OF PUBLISHING NEWSPAPERS OR MAGAZINES A PRIVILEGE TAX OF
2% ON THE GROSS RECEIPTS FROM THE SALE OF ADVERTISING.  APPELLANTS,
WHOSE ONLY OFFICE AND PLACE OF BUSINESS WAS WITHIN THE STATE, PREPARED,
EDITED AND PUBLISHED THERE A JOURNAL, THE CIRCULATION OF WHICH WAS
PARTLY INTERSTATE.  PART OF THEIR RECEIPTS FROM ADVERTISING WAS DERIVED
FROM CONTRACTS WITH ADVERTISERS OUT OF THE STATE.  SUCH CONTRACTS
INVOLVED INTERSTATE TRANSMISSION, FROM ADVERTISERS TO APPELLANTS, OF
CUTS, MATS, INFORMATION, COPY, ETC.; ALSO PAYMENT THROUGH INTERSTATE
FACILITIES.  HELD, THE TAX AS APPLIED TO APPELLANTS IN RESPECT OF THE
SUMS RECEIVED UNDER SUCH ADVERTISING CONTRACTS DID NOT INFRINGE THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  PP. 259-260. 

SO FAR AS THE ADVERTISING RATES REFLECTED A VALUE ATTRIBUTABLE TO THE
MAINTENANCE OF A CIRCULATION OF THE MAGAZINE INTERSTATE, THE BURDEN ON
THE INTERSTATE BUSINESS WAS TOO REMOTE AND TOO ATTENUATED TO CALL FOR A
RIGIDLY LOGICAL APPLICATION OF THE DOCTRINE THAT GROSS RECEIPTS FROM
INTERSTATE COMMERCE MAY NOT BE MADE THE MEASURE OF A TAX. 

4.  THE COMMERCE CLAUSE DOES NOT RELIEVE THOSE ENGAGED IN INTERSTATE
COMMERCE FROM THEIR JUST SHARE OF THE STATE TAX BURDEN, EVEN THOUGH THE
COST OF DOING THE BUSINESS BE THEREBY INCREASED.  P. 254. 

5.  THE VICE CHARACTERISTIC OF SUCH LOCAL TAXES, MEASURED BY GROSS
RECEIPTS FROM INTERSTATE COMMERCE, AS HAVE BEEN HELD INVALID, WAS THAT
THEY PLACED ON THE COMMERCE BURDENS OF SUCH A NATURE AS WERE CAPABLE,
IN POINT OF SUBSTANCE, OF BEING IMPOSED, OR ADDED TO, WITH EQUAL RIGHT
BY EVERY STATE WHICH THE COMMERCE TOUCHED, MERELY BECAUSE INTERSTATE
COMMERCE WAS BEING DONE, SO THAT WITHOUT THE PROTECTION OF THE COMMERCE
CLAUSE IT WOULD BEAR CUMULATIVE BURDENS NOT IMPOSED ON LOCAL COMMERCE. 
THE TAX HERE INVOLVED IS NOT SUBJECT TO THAT OBJECTION.  P. 255. 

6.  THE BUSINESS OF PREPARING, PRINTING AND PUBLISHING MAGAZINE
ADVERTISING IS PECULIARLY LOCAL AND DISTINCT FROM ITS CIRCULATION
WHETHER OR NOT THAT CIRCULATION BE INTERSTATE COMMERCE.  P. 258. 

7.  IN RECONCILING OPPOSING DEMANDS THAT INTERSTATE COMMERCE BEAR ITS
SHARE OF LOCAL TAXATION, AND, ON THE OTHER HAND, NOT BE SUBJECTED TO
MULTIPLE TAX BURDENS MERELY BECAUSE IT IS INTERSTATE COMMERCE,
PRACTICAL RATHER THAN LOGICAL DISTINCTIONS MUST BE SOUGHT.  P. 259. 

8.  FISHER'S BLEND STATION V. STATE TAX COMM'N, 297 U.S. 650, AND
CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292, DISTINGUISHED.  PP. 260
261. 

WESTERN LIVE STOCK ET AL. V. BUREAU OF REVENUE ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW MEXICO. 

APPEAL FROM A JUDGMENT AFFIRMING A JUDGMENT AGAINST THE APPELLANTS IN
A SUIT BROUGHT BY THEM TO RECOVER TAXES PAID UNDER PROTEST AND ALLEGED
TO HAVE BEEN UNLAWFULLY EXACTED. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

LEVIES A PRIVILEGE TAX UPON THE GROSS RECEIPTS OF THOSE ENGAGED IN
CERTAIN SPECIFIED BUSINESSES.  FN1  SUBDIVISION I IMPOSES A TAX OF 2%
OF AMOUNTS RECEIVED FROM THE SALE OF ADVERTISING SPACE BY ONE ENGAGED
IN THE BUSINESS OF PUBLISHING NEWSPAPERS OR MAGAZINES.  THE QUESTION
FOR DECISION IS WHETHER THE TAX LAID UNDER THIS STATUTE ON APPELLANTS,
WHO SELL WITHOUT THE STATE, TO ADVERTISERS THERE, SPACE IN A JOURNAL
WHICH THEY PUBLISH IN NEW MEXICO AND CIRCULATE TO SUBSCRIBERS WITHIN
AND WITHOUT THE STATE, IMPOSES AN UNCONSTITUTIONAL BURDEN ON INTERSTATE
COMMERCE. 

APPELLANTS BROUGHT THE PRESENT SUIT IN THE STATE DISTRICT COURT TO
RECOVER THE TAX, WHICH THEY HAD PAID UNDER PROTEST, AS EXACTED IN
VIOLATION OF THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.  THE
TRIAL COURT OVERRULED A DEMURRER TO THE COMPLAINT AND GAVE JUDGMENT FOR
APPELLANTS, WHICH THE SUPREME COURT REVERSED.  41 N.M. 141; 65 P.2D
863.  APPELLANTS REFUSING TO PLEAD FURTHER, THE DISTRICT COURT GAVE
JUDGMENT FOR THE APPELLEES, WHICH THE SUPREME COURT AFFIRMED.  41 N.M.
288; 67 P.2D 505.  THE CASE COMES HERE ON APPEAL FROM THE SECOND
JUDGMENT UNDER SEC. 237 OF THE JUDICIAL CODE. 

APPELLANTS PUBLISH A MONTHLY LIVESTOCK TRADE JOURNAL WHICH THEY
WHOLLY PREPARE, EDIT, AND PUBLISH WITHIN THE STATE OF NEW MEXICO, WHERE
THEIR ONLY OFFICE AND PLACE OF BUSINESS IS LOCATED.  THE JOURNAL HAS A
CIRCULATION IN NEW MEXICO AND OTHER STATES, BEING DISTRIBUTED TO PAID
SUBSCRIBERS THROUGH THE MAILS OR BY OTHER MEANS OF TRANSPORTATION.  IT
CARRIES ADVERTISEMENTS, SOME OF WHICH ARE OBTAINED FROM ADVERTISERS IN
OTHER STATES THROUGH APPELLANTS' SOLICITATION THERE.  WHERE SUCH
CONTRACTS ARE ENTERED INTO, PAYMENT IS MADE BY REMITTANCES TO
APPELLANTS SENT INTERSTATE; AND THE CONTRACTS CONTEMPLATE AND PROVIDE
FOR THE INTERSTATE SHIPMENT BY THE ADVERTISERS TO APPELLANTS OF
ADVERTISING CUTS, MATS, INFORMATION AND COPY.  PAYMENT IS DUE AFTER THE
PRINTING OF SUCH ADVERTISEMENTS IN THE JOURNAL AND ITS ULTIMATE
CIRCULATION AND DISTRIBUTION, WHICH IS ALLEGED TO BE IN NEW MEXICO AND
OTHER STATES. 

APPELLANTS INSIST HERE, AS THEY DID IN THE STATE COURTS, THAT THE
SUMS EARNED UNDER THE ADVERTISING CONTRACTS ARE IMMUNE FROM THE TAX
BECAUSE THE CONTRACTS ARE ENTERED INTO BY TRANSACTIONS ACROSS STATE
LINES AND RESULT IN THE LIKE TRANSMISSION OF ADVERTISING MATERIALS BY
ADVERTISERS TO APPELLANTS, AND ALSO BECAUSE PERFORMANCE INVOLVES THE
MAILING OR OTHER DISTRIBUTION OF APPELLANTS' MAGAZINES TO POINTS
WITHOUT THE STATE. 

THAT THE MERE FORMATION OF A CONTRACT BETWEEN PERSONS IN DIFFERENT
STATES IS NOT WITHIN THE PROTECTION OF THE COMMERCE CLAUSE, AT LEAST IN
THE ABSENCE OF CONGRESSIONAL ACTION, UNLESS THE PERFORMANCE IS WITHIN
ITS PROTECTION, IS A PROPOSITION NO LONGER OPEN TO QUESTION.  PAUL V.
VIRGINIA, 8 WALL.  168; HOOPER V. CALIFORNIA, 155 U.S. 648; NEW YORK
LIFE INS. CO. V. DEER LODGE COUNTY, 231 U.S. 495; CF. WARE & LELAND V.
MOBILE COUNTY, 209 U.S. 405; ENGEL V. O'MALLEY, 219 U.S. 128.  HENCE IT
IS UNNECESSARY TO CONSIDER THE IMPACT OF THE TAX UPON THE ADVERTISING
CONTRACTS EXCEPT AS IT AFFECTS THEIR PERFORMANCE, PRESENTLY TO BE
DISCUSSED.  NOR IS TAXATION OF A LOCAL BUSINESS OR OCCUPATION WHICH IS
SEPARATE AND DISTINCT FROM THE TRANSPORTATION AND INTERCOURSE WHICH IS
INTERSTATE COMMERCE FORBIDDEN MERELY BECAUSE IN THE ORDINARY COURSE
SUCH TRANSPORTATION OR INTERCOURSE IS INDUCED OR OCCASIONED BY THE
BUSINESS.  WILLIAMS V. FEARS, 179 U.S. 270; WARE & LELAND V. MOBILE
COUNTY, SUPRA; BROWNING V. WAYCROSS, 233 U.S. 16; GENERAL RAILWAY
SIGNAL CO. V. VIRGINIA, 246 U.S. 500, 510; UTAH POWER & LIGHT CO. V.
PFOST, 286 U.S. 165.  HERE THE TAX WHICH IS LAID ON THE COMPENSATION
RECEIVED UNDER THE CONTRACT IS NOT FORBIDDEN EITHER BECAUSE THE
CONTRACT, APART FROM ITS PERFORMANCE, IS WITHIN THE PROTECTION OF THE
COMMERCE CLAUSE, OR BECAUSE AS AN INCIDENT PRELIMINARY TO PRINTING AND
PUBLISHING THE ADVERTISEMENTS THE ADVERTISERS SEND CUTS, COPY AND THE
LIKE TO APPELLANTS. 

WE TURN TO THE OTHER AND MORE VEXED QUESTION, WHETHER THE TAX IS
INVALID BECAUSE THE PERFORMANCE OF THE CONTRACT, FOR WHICH THE
COMPENSATION IS PAID, INVOLVES TO SOME EXTENT THE DISTRIBUTION,
INTERSTATE, OF SOME COPIES OF THE MAGAZINE CONTAINING THE
ADVERTISEMENTS.  WE LAY TO ONE SIDE THE FACT THAT APPELLANTS DO NOT
ALLEGE SPECIFICALLY THAT THE CONTRACT STIPULATES THAT THE
ADVERTISEMENTS SHALL BE SENT TO SUBSCRIBERS OUT OF THE STATE, OR IS SO
FRAMED THAT THE COMPENSATION WOULD NOT BE EARNED IF SUBSCRIBERS OUTSIDE
THE STATE SHOULD CANCEL THEIR SUBSCRIPTIONS.  WE ASSUME THE POINT IN
APPELLANTS' FAVOR AND ADDRESS OURSELVES TO THEIR ARGUMENT THAT THE
PRESENT TAX INFRINGES THE COMMERCE CLAUSE BECAUSE IT IS MEASURED BY
GROSS RECEIPTS WHICH ARE TO SOME EXTENT AUGMENTED BY APPELLANTS'
MAINTENANCE OF AN INTERSTATE CIRCULATION OF THEIR MAGAZINE. 

IT WAS NOT THE PURPOSE OF THE COMMERCE CLAUSE TO RELIEVE THOSE
ENGAGED IN INTERSTATE COMMERCE FROM THEIR JUST SHARE OF STATE TAX
BURDEN EVEN THOUGH IT INCREASES THE COST OF DOING THE BUSINESS.  "EVEN
INTERSTATE BUSINESS MUST PAY ITS WAY," POSTAL TELEGRAPH-CABLE CO. V.
RICHMOND, 249 U.S. 252, 259; FICKLEN V. SHELBY COUNTY TAXING DIST., 145
U.S. 1, 24; POSTAL TELEGRAPH CABLE CO. V. ADAMS, 155 U.S. 688, 696;
GALVESTON, H. & S.A. RY. CO. V. TEXAS, 210 U.S. 217, 225, 227, AND THE
BARE FACT THAT ONE IS CARRYING ON INTERSTATE COMMERCE DOES NOT RELIEVE
HIM FROM MANY FORMS OF STATE TAXATION WHICH ADD TO THE COST OF HIS
BUSINESS.  HE IS SUBJECT TO A PROPERTY TAX ON THE INSTRUMENTS EMPLOYED
IN THE COMMERCE.  WESTERN UNION TELEG.  CO. V. ATTORNEY GENERAL, 125
U.S. 530; CLEVELAND, C., C. & ST. L. RY. CO. V. BACKUS, 154 U.S. 439;
ADAMS EXPRESS CO. V. OHIO STATE AUDITOR, 165 U.S. 194; ADAMS EXPRESS
CO. V. KENTUCKY, 166 U.S. 171; WESTERN UNION TEL. CO. V. MISSOURI EX
REL. GOTTLIEB, 190 U.S. 412; OLD DOMINION S.S. CO. V. VIRGINIA, 198
U.S. 299, AND IF THE PROPERTY DEVOTED TO INTERSTATE TRANSPORTATION IS
USED BOTH WITHIN AND WITHOUT THE STATE A TAX FAIRLY APPORTIONED TO ITS
USE WITHIN THE STATE WILL BE SUSTAINED.  PULLMAN'S PALACE CAR CO. V.
PENNSYLVANIA, 141 U.S. 18; CUDAHY PACKING CO. V. MINNESOTA, 246 U.S.
450.  NET EARNINGS FROM INTERSTATE COMMERCE ARE SUBJECT TO INCOME TAX,
UNITED STATES GLUE CO. V. OAK CREEK, 247 U.S. 321, AND IF THE COMMERCE
IS CARRIED ON BY A CORPORATION A FRANCHISE TAX MAY BE IMPOSED, MEASURED
BY THE NET INCOME FROM BUSINESS DONE WITHIN THE STATE, INCLUDING SUCH
PORTION OF THE INCOME DERIVED FROM INTERSTATE COMMERCE AS MAY BE JUSTLY
ATTRIBUTABLE TO BUSINESS DONE WITHIN THE STATE BY A FAIR METHOD OF
APPORTIONMENT.  UNDERWOOD TYPEWRITER CO. V. CHAMBERLAIN, 254 U.S. 113;
CF. BASS, RATCLIFF & GRETTON V. STATE TAX COMM'N, 266 U.S. 271. 

ALL OF THESE TAXES IN ONE WAY OR ANOTHER ADD TO THE EXPENSE OF
CARRYING ON INTERSTATE COMMERCE, AND IN THAT SENSE BURDEN IT; BUT THEY
ARE NOT FOR THAT REASON PROHIBITED.  ON THE OTHER HAND, LOCAL TAXES,
MEASURED BY GROSS RECEIPTS FROM INTERSTATE COMMERCE, HAVE OFTEN BEEN
PRONOUNCED UNCONSTITUTIONAL.  THE VICE CHARACTERISTIC OF THOSE WHICH
HAVE BEEN HELD INVALID IS THAT THEY HAVE PLACED ON THE COMMERCE BURDENS
OF SUCH A NATURE AS TO BE CAPABLE, IN POINT OF SUBSTANCE, OF BEING
IMPOSED (FARGO V. MICHIGAN, 121 U.S. 230; PHILADELPHIA & SOU.  S.S. CO.
V. PENNSYLVANIA, 122 U.S. 326; GALVESTON, H. & S.A.R. CO. V. TEXAS,
SUPRA; MEYER V. WELLS, FARGO & CO., 223 U.S. 298) OR ADDED TO (CREW
LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292; FISHER'S BLEND STATION V.
STATE TAX COMM'N, 297 U.S. 650) WITH EQUAL RIGHT BY EVERY STATE WHICH
THE COMMERCE TOUCHES, MERELY BECAUSE INTERSTATE COMMERCE IS BEING DONE,
SO THAT WITHOUT THE PROTECTION OF THE COMMERCE CLAUSE IT WOULD BEAR
CUMULATIVE BURDENS NOT IMPOSED ON LOCAL COMMERCE.  SEE PHILADELPHIA &
SOU.  S.S. CO. V. PENNSYLVANIA, SUPRA, 346; CASE OF STATE FREIGHT TAX,
15 WALL.  232, 280; BRADLEY, J., DISSENTING IN MAINE V. GRAND TRUNK RY.
CO., 142 U.S. 217, 235; CF. PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA,
SUPRA, 26.  THE MULTIPLICATION OF STATE TAXES MEASURED BY THE GROSS
RECEIPTS FROM INTERSTATE TRANSACTIONS WOULD SPELL THE DESTRUCTION OF
INTERSTATE COMMERCE AND RENEW THE BARRIERS TO INTERSTATE TRADE WHICH IT
WAS THE OBJECT OF THE COMMERCE CLAUSE TO REMOVE.  BALDWIN V. G.A.F.
SEELIG, INC., 294 U.S. 511, 523. 

IT IS FOR THESE REASONS THAT A STATE MAY NOT LAY A TAX MEASURED BY
THE AMOUNT OF MERCHANDISE CARRIED IN INTERSTATE COMMERCE, CASE OF STATE
FREIGHT TAX, SUPRA, OR UPON THE FREIGHT EARNED BY ITS CARRIAGE.  FARGO
V. MICHIGAN, SUPRA; PHILADELPHIA & SOU.  S.S. CO. V. PENNSYLVANIA,
SUPRA, RESTRICTING THE EFFECT OF STATE TAX ON RAILWAY GROSS RECEIPTS,
15 WALL.  284, WITH WHICH COMPARE MILLER, J., DISSENTING IN THAT CASE
AT P. 297.  TAXATION MEASURED BY GROSS RECEIPTS FROM INTERSTATE
COMMERCE HAS BEEN SUSTAINED WHEN FAIRLY APPORTIONED TO THE COMMERCE
CARRIED ON WITHIN THE TAXING STATE, WISCONSIN & M. RY. CO. V. POWERS,
191 U.S. 379; MAINE V. GRAND TRUNK RY. CO., SUPRA; CUDAHY PACKING CO.
V. MINNESOTA, SUPRA; UNITED STATES EXPRESS CO. V. MINNESOTA, 223 U.S.
335, AND IN OTHER CASES HAS BEEN REJECTED ONLY BECAUSE THE
APPORTIONMENT WAS FOUND TO BE INADEQUATE OR UNFAIR.  FARGO V. MICHIGAN,
SUPRA; GALVESTON, H. & S.A.R. CO. V. TEXAS, SUPRA; MEYER V. WELLS,
FARGO & CO., SUPRA, WITH WHICH COMPARE WISCONSIN & M. RY. CO. V.
POWERS, SUPRA.  WHETHER THE TAX WAS SUSTAINED AS A FAIR MEANS OF
MEASURING A LOCAL PRIVILEGE OR FRANCHISE, AS IN MAINE V. GRAND TRUNK
RY. CO., SUPRA; FICKLEN V. SHELBY COUNTY TAXING DIST., SUPRA; AMERICAN
MANUFACTURING CO. V. ST. LOUIS, 250 U.S. 459, OR AS A METHOD OF
ARRIVING AT THE FAIR MEASURE OF A TAX SUBSTITUTED FOR LOCAL PROPERTY
TAXES, CUDAHY PACKING CO. V. MINNESOTA, SUPRA; UNITED STATES EXPRESS
CO. V. MINNESOTA, SUPRA; CF. POSTAL TELEGRAPH CABLE CO. V. ADAMS,
SUPRA; SEE MCHENRY V. ALFORD, 168 U.S. 651, 670-671, IT IS A PRACTICAL
WAY OF LAYING UPON THE COMMERCE ITS SHARE OF THE LOCAL TAX BURDEN
WITHOUT SUBJECTING IT TO MULTIPLE TAXATION NOT BORNE BY LOCAL COMMERCE
AND TO WHICH IT WOULD BE SUBJECT IF GROSS RECEIPTS, UNAPPORTIONED,
COULD BE MADE THE MEASURE OF A TAX LAID IN EVERY STATE WHERE THE
COMMERCE IS CARRIED ON.  A TAX ON GROSS RECEIPTS FROM TOLLS FOR THE USE
BY INTERSTATE TRAINS OF TRACKS LYING WHOLLY WITHIN THE TAXING STATE IS
VALID, NEW YORK, L.E. & W.R. CO. V. PENNSYLVANIA, 158 U.S. 431; CF.
HENDERSON BRIDGE CO. V. KENTUCKY, 166 U.S. 150, ALTHOUGH A LIKE TAX ON
GROSS RECEIPTS FROM THE RENTAL OF RAILROAD CARS USED IN INTERSTATE
COMMERCE BOTH WITHIN AND WITHOUT THE TAXING STATE IS INVALID.  FARGO V.
MICHIGAN, SUPRA.  IN THE ONE CASE THE TAX REACHES ONLY THAT PART OF THE
COMMERCE CARRIED ON WITHIN THE TAXING STATE; IN THE OTHER IT EXTENDS TO
THE COMMERCE CARRIED ON WITHOUT THE STATE BOUNDARIES, AND, IF VALID,
COULD BE SIMILARLY LAID IN EVERY OTHER STATE IN WHICH THE BUSINESS IS
CONDUCTED. 

IN THE PRESENT CASE THE TAX IS, IN FORM AND SUBSTANCE, AN EXCISE
CONDITIONED ON THE CARRYING ON OF A LOCAL BUSINESS, THAT OF PROVIDING
AND SELLING ADVERTISING SPACE IN A PUBLISHED JOURNAL, WHICH IS SOLD TO
AND PAID FOR BY SUBSCRIBERS, SOME OF WHOM RECEIVE IT IN INTERSTATE
COMMERCE.  THE PRICE AT WHICH THE ADVERTISING IS SOLD IS MADE THE
MEASURE OF THE TAX.  THIS COURT HAS SUSTAINED A SIMILAR TAX SAID TO BE
ON THE PRIVILEGE OF MANUFACTURING, MEASURED BY THE TOTAL GROSS RECEIPTS
FROM SALES OF THE MANUFACTURED GOODS BOTH INTRASTATE AND INTERSTATE. 
AMERICAN MANUFACTURING CO. V. ST. LOUIS, SUPRA, 462.  THE ACTUAL SALES
PRICES WHICH MEASURED THE TAX WERE TAKEN TO BE NO MORE THAN THE MEASURE
OF THE VALUE OF THE GOODS MANUFACTURED, AND SO AN APPROPRIATE MEASURE
OF THE VALUE OF THE PRIVILEGE, THE TAXATION OF WHICH WAS DEFERRED UNTIL
THE GOODS WERE SOLD.  FICKLEN V. SHELBY COUNTY TAXING DIST., SUPRA,
SUSTAINED A LICENSE TAX MEASURED BY A PERCENTAGE OF THE GROSS ANNUAL
COMMISSIONS RECEIVED BY BROKERS ENGAGED IN NEGOTIATING SALES WITHIN FOR
SELLERS WITHOUT THE STATE. 

VIEWED ONLY AS AUTHORITY, AMERICAN MANUFACTURING CO. V. ST. LOUIS,
SUPRA, WOULD SEEM DECISIVE OF THE PRESENT CASE.  BUT WE THINK THE TAX
ASSAILED HERE FINDS SUPPORT IN REASON, AND IN THE PRACTICAL NEEDS OF A
TAXING SYSTEM WHICH, UNDER CONSTITUTIONAL LIMITATIONS, MUST ACCOMMODATE
ITSELF TO THE DOUBLE DEMAND THAT INTERSTATE BUSINESS SHALL PAY ITS WAY,
AND THAT AT THE SAME TIME IT SHALL NOT BE BURDENED WITH CUMULATIVE
EXACTIONS WHICH ARE NOT SIMILARLY LAID ON LOCAL BUSINESS. 

AS WE HAVE SAID, THE CARRYING ON OF A LOCAL BUSINESS MAY BE MADE THE
CONDITION OF STATE TAXATION, IF IT IS DISTINCT FROM INTERSTATE
COMMERCE, AND THE BUSINESS OF PREPARING, PRINTING AND PUBLISHING
MAGAZINE ADVERTISING IS PECULIARLY LOCAL AND DISTINCT FROM ITS
CIRCULATION WHETHER OR NOT THAT CIRCULATION BE INTERSTATE COMMERCE. 
CF. PUGET SOUND STEVEDORING CO. V. STATE TAX COMM'N, 302 U.S. 90, 94. 
NO ONE WOULD DOUBT THAT THE TAX ON THE PRIVILEGE WOULD BE VALID IF IT
WERE MEASURED BY THE AMOUNT OF ADVERTISING SPACE SOLD.  UTAH POWER &
LIGHT CO. V. PFOST, SUPRA; FEDERAL COMPRESS & W. CO. V. MCLEAN, 291
U.S. 17, OR BY ITS VALUE.  OLIVER IRON MINING CO. V. LORD, 262 U.S.
172; HOPE NATURAL GAS CO. V. HALL, 274 U.S. 284.  SELLING PRICE, TAKEN
AS A MEASURE OF VALUE WHOSE ACCURACY APPELLANTS DO NOT CHALLENGE, IS
FOR ALL PRACTICAL PURPOSES A CONVENIENT MEANS OF ARRIVING AT AN
EQUITABLE MEASURE OF THE BURDEN WHICH MAY BE IMPOSED ON AN ADMITTEDLY
TAXABLE SUBJECT MATTER.  UNLIKE THE MEASURE OF THE TAX SUSTAINED IN
AMERICAN MANUFACTURING CO. V. ST. LOUIS, SUPRA, IT DOES NOT EMBRACE THE
PURCHASE PRICE (HERE THE MAGAZINE SUBSCRIPTION PRICE) OF THE ARTICLES
SHIPPED IN INTERSTATE COMMERCE.  SO FAR AS THE ADVERTISING RATES
REFLECT A VALUE ATTRIBUTABLE TO THE MAINTENANCE OF A CIRCULATION OF THE
MAGAZINE INTERSTATE, WE THINK THE BURDEN ON THE INTERSTATE BUSINESS IS
TOO REMOTE AND TOO ATTENUATED TO CALL FOR A RIGIDLY LOGICAL APPLICATION
OF THE DOCTRINE THAT GROSS RECEIPTS FROM INTERSTATE COMMERCE MAY NOT BE
MADE THE MEASURE OF A TAX.  EXPERIENCE HAS TAUGHT THAT THE OPPOSING
DEMANDS THAT THE COMMERCE SHALL BEAR ITS SHARE OF LOCAL TAXATION, AND
THAT IT SHALL NOT, ON THE OTHER HAND, BE SUBJECTED TO MULTIPLE TAX
BURDENS MERELY BECAUSE IT IS INTERSTATE COMMERCE, ARE NOT CAPABLE OF
RECONCILIATION BY RESORT TO THE SYLLOGISM.  PRACTICAL RATHER THAN
LOGICAL DISTINCTIONS MUST BE SOUGHT.  SEE GALVESTON, H. & S.A.R. CO. V.
TEXAS, SUPRA, 227.  RECOGNIZING THAT NOT EVERY LOCAL LAW THAT AFFECTS
COMMERCE IS A REGULATION OF IT IN A CONSTITUTIONAL SENSE, THIS COURT
HAS HELD THAT LOCAL TAXES MAY BE LAID ON PROPERTY USED IN THE COMMERCE;
THAT ITS VALUE FOR TAXATION MAY INCLUDE THE AUGMENTATION ATTRIBUTABLE
TO THE COMMERCE IN WHICH IT IS EMPLOYED; AND, FINALLY, THAT THE
EQUIVALENT OF THAT VALUE MAY BE COMPUTED BY A MEASURE RELATED TO GROSS
RECEIPTS WHEN A TAX OF THE LATTER IS SUBSTITUTED FOR A TAX OF THE
FORMER.  SEE GALVESTON, H. & S.A.R. CO. V. TEXAS, SUPRA, 225. 

HERE IT IS PERHAPS ENOUGH THAT THE PRIVILEGE TAXED IS OF A TYPE WHICH
HAS BEEN REGARDED AS SO SEPARATE AND DISTINCT FROM INTERSTATE
TRANSPORTATION AS TO ADMIT OF DIFFERENT TREATMENT FOR PURPOSES OF
TAXATION, UTAH LIGHT & POWER CO V. PFOST, SUPRA; FEDERAL COMPRESS & W.
CO. V. MCLEAN, SUPRA; CHASSANIOL V. GREENWOOD, 291 U.S. 584, AND THAT
THE VALUE OF THE PRIVILEGE IS FAIRLY MEASURED BY THE RECEIPTS.  THE TAX
IS NOT INVALID BECAUSE THE VALUE IS ENHANCED BY APPELLANT'S CIRCULATION
OF THEIR JOURNAL INTERSTATE ANY MORE THAN PROPERTY TAXES ON RAILROADS
ARE INVALID BECAUSE PROPERTY VALUE IS INCREASED BY THE CIRCUMSTANCE
THAT THE RAILROADS DO AN INTERSTATE BUSINESS. 

BUT THERE IS AN ADDED REASON WHY WE THINK THE TAX IS NOT SUBJECT TO
THE OBJECTION WHICH HAS BEEN LEVELED AT TAXES LAID UPON GROSS RECEIPTS
DERIVED FROM INTERSTATE COMMUNICATION OR TRANSPORTATION OF GOODS.  SO
FAR AS THE VALUE CONTRIBUTED TO APPELLANTS' NEW MEXICO BUSINESS BY
CIRCULATION OF THE MAGAZINE INTERSTATE IS TAXED, IT CANNOT AGAIN BE
TAXED ELSEWHERE ANY MORE THAN THE VALUE OF RAILROAD PROPERTY TAXED
LOCALLY.  THE TAX IS NOT ONE WHICH IN FORM OR SUBSTANCE CAN BE REPEATED
BY OTHER STATES IN SUCH MANNER AS TO LAY AN ADDED BURDEN ON THE
INTERSTATE DISTRIBUTION OF THE MAGAZINE.  AS ALREADY NOTED, RECEIPTS
FROM SUBSCRIPTIONS ARE NOT INCLUDED IN THE MEASURE OF THE TAX.  IT IS
NOT MEASURED BY THE EXTENT OF THE CIRCULATION OF THE MAGAZINE
INTERSTATE.  ALL THE EVENTS UPON WHICH THE TAX IS CONDITIONED - THE
PREPARATION, PRINTING AND PUBLICATION OF THE ADVERTISING MATTER, AND
THE RECEIPT OF THE SUMS PAID FOR IT - OCCUR IN NEW MEXICO AND NOT
ELSEWHERE.  ALL ARE BEYOND ANY CONTROL AND TAXING POWER WHICH, WITHOUT
THE COMMERCE CLAUSE, THOSE STATES COULD EXERT THROUGH ITS DOMINION OVER
THE DISTRIBUTION OF THE MAGAZINE OR ITS SUBSCRIBERS.  THE DANGERS WHICH
MAY ENSUE FROM THE IMPOSITION OF A TAX MEASURED BY GROSS RECEIPTS
DERIVED DIRECTLY FROM INTERSTATE COMMERCE ARE ABSENT. 

IN THIS AND OTHER WAYS THE CASE DIFFERS FROM FISHER'S BLEND STATION
V. STATE TAX COMM'N, SUPRA, ON WHICH APPELLANTS RELY.  THERE THE
EXACTION WAS A PRIVILEGE TAX LAID UPON THE OCCUPATION OF BROADCASTING,
WHICH THE COURT HELD WAS ITSELF INTERSTATE COMMUNICATION, COMPARABLE TO
THAT CARRIED ON BY THE TELEGRAPH AND THE TELEPHONE, AND WAS MEASURED BY
THE GROSS RECEIPTS DERIVED FROM THAT COMMERCE.  IF BROADCASTING COULD
BE TAXED, SO ALSO COULD RECEPTION.  STATION WBT, INC. V. POULNOT, 46
F.(2D) 671.  FN2  IN THAT EVENT A CUMULATIVE TAX BURDEN WOULD BE
IMPOSED ON INTERSTATE COMMUNICATION SUCH AS MIGHT ENSUE IF GROSS
RECEIPTS FROM INTERSTATE TRANSPORTATION COULD BE TAXED.  THIS WAS THE
VICE OF THE TAX OF A PERCENTAGE OF THE GROSS RECEIPTS FROM GOODS SOLD
BY A WHOLESALER IN INTERSTATE COMMERCE, HELD INVALID IN CREW LEVICK CO.
V. PENNSYLVANIA, SUPRA.  IN FORM AND IN SUBSTANCE THE TAX WAS THOUGHT
NOT TO BE ONE FOR THE PRIVILEGE OF DOING A LOCAL BUSINESS SEPARABLE
FROM INTERSTATE COMMERCE.  CF. AMERICAN MANUFACTURING CO. V. ST. LOUIS,
SUPRA. IN NONE OF THESE RESPECTS IS THE PRESENT TAX OBJECTIONABLE. 
AFFIRMED. 

FN1 "SEC.  201.  THERE IS HEREBY LEVIED, AND SHALL BE COLLECTED BY
THE TAX COMMISSION, PRIVILEGE TAXES, MEASURED BY THE AMOUNT OR VOLUME
OF BUSINESS DONE, AGAINST THE PERSONS, ON ACCOUNT OF THEIR BUSINESS
ACTIVITIES, ENGAGING, OR CONTINUING, WITHIN THE STATE OF NEW MEXICO, IN
ANY BUSINESS AS HEREIN DEFINED, AND IN THE AMOUNTS DETERMINED BY THE
APPLICATION OF RATES AGAINST GROSS RECEIPTS, AS FOLLOWS: 

     .         .         .         .         . 

"I - AT AN AMOUNT EQUAL TO TWO PERCENT OF THE GROSS RECEIPTS OF ANY
PERSON ENGAGING OR CONTINUING IN ANY OF THE FOLLOWING BUSINESSES:...
PUBLICATION OF NEWSPAPERS AND MAGAZINES (BUT THE GROSS RECEIPTS OF THE
BUSINESS OF PUBLISHING NEWSPAPERS OR MAGAZINES SHALL INCLUDE ONLY THE
AMOUNTS RECEIVED FOR THE SALE OF ADVERTISING SPACE)  ..." 

FN2  GREAT BRITAIN LEVIES AN ANNUAL LICENSE TAX ON RADIO RECEIVING
APPARATUS.  SEE WIRELESS TELEGRAPHY ACT OF 1904, C. 24, 4 EDW.  7, AS
EXPLAINED BY C. 67, 15 & 16 GEO. 5, AND IMPLEMENTED BY REGULATION
PRINTED IN GREAT BRITAIN, POST OFFICE GUIDE, JULY, 1936. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER ARE OF OPINION THAT THE
JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
























LABOR BD. V. GREYHOUND LINES, 303 U.S. 261 


NO. 413.  ARGUED FEBRUARY 4, 1938.  - DECIDED FEBRUARY 28, 1938.  - 91
F.2D 178, REVERSED. 


1.  UPON A FINDING THAT AN EMPLOYER HAS CREATED AND FOSTERED A LABOR
ORGANIZATION OF EMPLOYEES AND DOMINATED ITS ADMINISTRATION IN VIOLATION
OF SEC. 8(1), (2) OF THE NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935,
THE NATIONAL LABOR RELATIONS BOARD HAS AUTHORITY, UNDER SEC. 10(C) OF
THE ACT, IN ADDITION TO ORDERING THE EMPLOYER TO CEASE THESE PRACTICES,
TO REQUIRE HIM TO WITHDRAW ALL RECOGNITION OF THE ORGANIZATION AS THE
REPRESENTATIVE OF HIS EMPLOYEES AND TO POST NOTICES INFORMING THEM OF
SUCH WITHDRAWAL.  PP. 263, 268. 

2.  WHETHER CONTINUED RECOGNITION BY THE EMPLOYER OF THE EMPLOYEES'
ASSOCIATION WOULD IN ITSELF BE A CONTINUING OBSTACLE TO THE EXERCISE OF
THE EMPLOYEES' RIGHT OF SELF-ORGANIZATION AND TO BARGAIN COLLECTIVELY
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, IS AN INFERENCE OF FACT
TO BE DRAWN BY THE BOARD FROM THE EVIDENCE REVIEWED IN ITS SUBSIDIARY
FINDINGS, AND WHEN SUPPORTED BY EVIDENCE THE BOARD'S FINDING OF THE
FACT IS CONCLUSIVE.  P. 270. 

3.  THE BOARD'S FINDINGS IN THIS CASE THAT THE EMPLOYER HAD ENGAGED
IN UNFAIR LABOR PRACTICES, AND THAT WITHDRAWAL OF RECOGNITION OF THE
EMPLOYEE ASSOCIATION BY THE EMPLOYER, ACCOMPANIED BY SUITABLE
PUBLICITY, WOULD APPROPRIATELY GIVE EFFECT TO THE POLICY OF THE ACT,
WERE AMPLY SUPPORTED BY THE EVIDENCE.  P. 271. 

4.  TO ENABLE THE BOARD TO DETERMINE WHETHER THE EMPLOYER HAD
VIOLATED THE STATUTE OR TO MAKE AN APPROPRIATE ORDER AGAINST HIM, THE
PRESENCE OF THE EMPLOYEES' ASSOCIATION WAS NOT ESSENTIAL AND IT WAS NOT
ENTITLED TO NOTICE AND HEARING.  P. 271. 

5.  AN ORDER OF THE BOARD SUCH AS THAT REQUIRING THE EMPLOYER TO
WITHDRAW RECOGNITION OF THE EMPLOYEES' ASSOCIATION, AND TO POST NOTICE
OF SUCH ACTION, LAWFUL WHEN MADE, DOES NOT BECOME MOOT BECAUSE IT IS
OBEYED OR BECAUSE CHANGING CIRCUMSTANCES MAY LESSEN THE NEED FOR IT. P.
271. 

NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, INC.,
ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 302 U.S. 676, TO REVIEW A JUDGMENT DENYING IN PART A
PETITION OF THE NATIONAL LABOR RELATIONS BOARD FOR ENFORCEMENT OF AN
ORDER. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE MAIN QUESTION FOR DECISION IS WHETHER, UPON A FINDING THAT AN
EMPLOYER HAS CREATED AND FOSTERED A LABOR ORGANIZATION OF EMPLOYEES AND
DOMINATED ITS ADMINISTRATION IN VIOLATION OF SEC. 8(1), (2) OF THE
NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935(C. 372, 49 STAT. 449, 29
U.S.C., SEC. 151, ET SEQ.), THE NATIONAL LABOR RELATIONS BOARD, IN
ADDITION TO ORDERING THE EMPLOYER TO CEASE THESE PRACTICES, CAN REQUIRE
HIM TO WITHDRAW ALL RECOGNITION OF THE ORGANIZATION AS THE
REPRESENTATIVE OF HIS EMPLOYEES AND TO POST NOTICES INFORMING THEM OF
SUCH WITHDRAWAL. 

RESPONDENT PENNSYLVANIA GREYHOUND LINES, INC., IS A CORPORATION
OPERATING A PASSENGER MOTOR BUS SYSTEM BETWEEN THE ATLANTIC COAST AND
CHICAGO AND ST. LOUIS.  RESPONDENT GREYHOUND MANAGEMENT COMPANY, AN
AFFILIATE OF THE PENNSYLVANIA COMPANY, PERFORMS VARIOUS SERVICES
RELATING TO EMPLOYEE PERSONNEL OF THE LATTER AND ITS AFFILIATED
CORPORATIONS.  TOGETHER, RESPONDENTS ACT AS EMPLOYERS OF THOSE
EMPLOYEES WORKING AT THE PITTSBURGH GARAGE OF THE PENNSYLVANIA COMPANY
AND TOGETHER ACTIVELY DEAL WITH LABOR RELATIONS OF THOSE EMPLOYEES. 

UPON CHARGES FILED BY LOCAL DIVISION NO. 1063, AMALGAMATED
ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF
AMERICA, A LABOR ORGANIZATION, THE BOARD ISSUED ITS COMPLAINT, AS
PERMITTED BY SEC. 10(B) OF THE ACT, CHARGING THAT RESPONDENTS HAD
ENGAGED IN SPECIFIED UNFAIR LABOR PRACTICES AFFECTING INTERSTATE
COMMERCE, IN VIOLATION OF SEC. 8.  AFTER NOTICE TO RESPONDENTS, AND
HEARING, THE BOARD FOUND THAT THEY HAD ENGAGED IN UNFAIR LABOR
PRACTICES BY INTERFERING WITH, RESTRAINING, AND COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS, GUARANTEED BY SEC. 7, IN THAT THEY HAD
DOMINATED AND INTERFERED WITH THE FORMATION AND ADMINISTRATION OF A
LABOR ORGANIZATION OF THEIR EMPLOYEES, EMPLOYEES ASSOCIATION OF THE
PENNSYLVANIA GREYHOUND LINES, INC., AND HAD CONTRIBUTED FINANCIAL AND
OTHER SUPPORT TO IT IN VIOLATION OF SEC. 8(1), (2). 

THE BOARD ORDERED THAT RESPONDENTS CEASE EACH OF THE SPECIFIED UNFAIR
LABOR PRACTICES.  IT FURTHER ORDERED THAT THEY WITHDRAW RECOGNITION
FROM THE EMPLOYEES ASSOCIATION AS EMPLOYEE REPRESENTATIVE AUTHORIZED TO
DEAL WITH RESPONDENTS CONCERNING GRIEVANCES, TERMS OF EMPLOYMENT, AND
LABOR DISPUTES, AND THAT THEY POST CONSPICUOUS NOTICES IN ALL THE
PLACES OF BUSINESS WHERE SUCH EMPLOYEES ARE ENGAGED, STATING THAT THE
"ASSOCIATION IS SO DISESTABLISHED AND THAT RESPONDENTS WILL REFRAIN
FROM ANY SUCH RECOGNITION THEREOF."  1 N.L.R.B. 1. 

UPON THE BOARD'S PETITION UNDER SEC. 10(E) TO ENFORCE THE ORDER,
HEARD APRIL 1, 1936, THE COURT OF APPEALS FOR THE THIRD CIRCUIT GAVE
JUDGMENT AFTER A DELAY OF ONE YEAR AND TWO MONTHS, DURING WHICH THERE
WERE THREE POSTPONEMENTS AND TWO REARGUMENTS.  IT STRUCK FROM THE ORDER
ALL PROVISIONS REQUIRING THE WITHDRAWAL BY RESPONDENTS OF RECOGNITION
OF THE EMPLOYEES ASSOCIATION AND PUBLICATION OF NOTICE OF WITHDRAWAL,
AND DIRECTED THAT IN OTHER RESPECTS THE BOARD'S ORDER BE ENFORCED.  91
F.(2D) 178.  THE COURT THOUGHT THAT THE BOARD WAS WITHOUT AUTHORITY TO
ORDER THE EMPLOYERS TO WITHHOLD RECOGNITION FROM THE ASSOCIATION,
WITHOUT NOTICE TO IT AND OPPORTUNITY FOR A HEARING, AND WITHOUT AN
ELECTION BY THE EMPLOYEES TO CHOOSE A LABOR ORGANIZATION TO REPRESENT
THEM.  WE GRANTED CERTIORARI, 302 U.S. 676, THE QUESTIONS INVOLVED
BEING OF IMPORTANCE IN THE ADMINISTRATION OF THE NATIONAL LABOR
RELATIONS ACT. 

RESPONDENTS DO NOT ASSAIL THE BOARD'S FINDINGS OF FACT AS WITHOUT
SUPPORT IN THE EVIDENCE, AND THE PRINCIPAL QUESTIONS FOR DECISION ARE
OF LAW, WHETHER IN THE CIRCUMSTANCES DISCLOSED BY THE FINDINGS THE
BOARD ACTED WITHIN THE AUTHORITY CONFERRED UPON IT BY SECS. 7, 8 AND 10
OF THE ACT.  SECTION 7 PROVIDES: 

"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 CONCERTED
ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL
AID OR PROTECTION." 


"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 7. 

"(2) TO DOMINATE OR INTERFERE WITH THE FORMATION OR ADMINISTRATION OF
ANY LABOR ORGANIZATION OR CONTRIBUTE FINANCIAL OR OTHER SUPPORT TO
IT:..." 

BY SEC. 10(B) THE BOARD IS GIVEN AUTHORITY TO HEAR COMPLAINTS OF
UNFAIR LABOR PRACTICES UPON EVIDENCE; AND SEC. 10(C)  FN1  DIRECTS THAT
WHEN THE BOARD FINDS THAT ANY PERSON HAS ENGAGED IN UNFAIR LABOR
PRACTICES IT "SHALL ISSUE AND CAUSE TO BE SERVED ON SUCH PERSON AN
ORDER REQUIRING SUCH PERSON TO CEASE AND DESIST FROM SUCH UNFAIR LABOR
PRACTICE, AND TO TAKE SUCH AFFIRMATIVE ACTION  ...  AS WILL EFFECTUATE
THE POLICIES OF THIS ACT...." 

NOTWITHSTANDING THE MANDATORY FORM OF SEC. 10(C), ITS PROVISIONS IN
SUBSTANCE LEAVE TO THE BOARD SOME SCOPE FOR THE EXERCISE OF JUDGMENT
AND DISCRETION IN DETERMINING, UPON THE BASIS OF THE FINDINGS, WHETHER
THE CASE IS ONE REQUIRING AN AFFIRMATIVE ORDER, AND IN CHOOSING THE
PARTICULAR AFFIRMATIVE RELIEF TO BE ORDERED.  HENCE, UPON THE CHALLENGE
OF THE AFFIRMATIVE PART OF AN ORDER OF THE BOARD, WE LOOK TO THE ACT
ITSELF, READ IN THE LIGHT OF ITS HISTORY, TO ASCERTAIN ITS POLICY, AND
TO THE FACTS WHICH THE BOARD HAS FOUND, TO SEE WHETHER THEY AFFORD A
BASIS FOR ITS JUDGMENT THAT THE ACTION ORDERED IS AN APPROPRIATE MEANS
OF CARRYING OUT THAT POLICY. 

THE HISTORY OF THE ACT AND ITS LANGUAGE SHOW THAT ITS RULING PURPOSE
WAS TO PROTECT INTERSTATE COMMERCE BY SECURING TO EMPLOYEES THE RIGHTS
ESTABLISHED BY SEC. 7 TO ORGANIZE, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN CONCERTED
ACTIVITIES FOR THAT AND OTHER PURPOSES.  NATIONAL LABOR RELATIONS BOARD
V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 23, 33.  THIS APPEARS BOTH
FROM THE FORMAL DECLARATION OF POLICY IN SEC. 1 OF THE ACT, NATIONAL
LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., SUPRA, 22-24,
AND FROM SEC. 7, IN ITSELF A DECLARATION OF THE POLICY WHICH, IN
CONJUNCTION WITH SEC. 10(C), IT ADOPTS AS THE CONTROLLING GUIDE TO
ADMINISTRATIVE ACTION. 

BEFORE ENACTMENT OF THE NATIONAL LABOR RELATIONS ACT THIS COURT HAD
RECOGNIZED THAT THE MAINTENANCE OF A "COMPANY UNION," DOMINATED BY THE
EMPLOYER, MAY BE A READY AND EFFECTIVE MEANS OF OBSTRUCTING SELF
ORGANIZATION OF EMPLOYEES AND THEIR CHOICE OF THEIR OWN REPRESENTATIVES
FOR THE PURPOSE OF COLLECTIVE BARGAINING.  SECTION 2(3) OF THE RAILWAY
LABOR ACT OF 1926, HAD PROVIDED THAT REPRESENTATIVES, FOR THE PURPOSES
OF THE ACT, SHOULD BE DESIGNATED BY EMPLOYER AND EMPLOYEES "WITHOUT
INTERFERENCE, INFLUENCE, OR COERCION EXERCISED BY EITHER PARTY OVER THE
SELF-ORGANIZATION OR DESIGNATION OF REPRESENTATIVES BY THE OTHER."  WE
HAD HELD THAT IN ENFORCING THIS PROVISION, EMPLOYER RECOGNITION OF A
COMPANY UNION MIGHT BE ENJOINED AND THE UNION "DISESTABLISHED," AS AN
APPROPRIATE MEANS OF PREVENTING INTERFERENCE WITH THE RIGHTS SECURED TO
EMPLOYEES BY THE STATUTE.  TEXAS & N.O.R. CO. V. BROTHERHOOD OF RAILWAY
& S.S. CLERKS, 281 U.S. 548, 560; SEE ALSO VIRGINIAN RY. CO. V. SYSTEM
FEDERATION NO. 40, 300 U.S. 515, 542 ET SEQ. 

CONGRESS, IN ENACTING THE NATIONAL LABOR RELATIONS ACT, HAD IN MIND
THE EXPERIENCE IN THE ADMINISTRATION OF THE RAILWAY LABOR ACT, AND
DECLARED THAT THE FORMER WAS "AN AMPLIFICATION AND FURTHER
CLARIFICATION OF THE PRINCIPLES" OF THE LATTER.  REPORT OF THE HOUSE
COMMITTEE ON LABOR, H.R. 1147, 74TH CONG., 1ST SESS., P. 3.  IT HAD
BEFORE IT THE RAILWAY CLERKS CASE WHICH HAD EMPHASIZED THE IMPORTANCE
OF UNION RECOGNITION IN SECURING COLLECTIVE BARGAINING, REPORT OF THE
SENATE COMMITTEE ON EDUCATION AND LABOR, S. REP. 573, 74TH CONG., 1ST
SESS., P. 17, AND THERE WERE THEN AVAILABLE DATA SHOWING THAT ONCE AN
EMPLOYER HAS CONFERRED RECOGNITION ON A PARTICULAR ORGANIZATION IT HAS
A MARKED ADVANTAGE OVER ANY OTHER IN SECURING THE ADHERENCE OF
EMPLOYEES, AND HENCE IN PREVENTING THE RECOGNITION OF ANY OTHER.  FN2
THE NATIONAL LABOR RELATIONS ACT CONTINUED AND AMPLIFIED THE POLICY OF
THE RAILWAY LABOR ACT BY ITS DECLARATION IN SEC. 7, AND BY PROVIDING
GENERALLY IN SEC. 8 THAT ANY INTERFERENCES IN THE EXERCISE OF THE
RIGHTS GUARANTEED BY SEC. 7 AND SPECIFICALLY THE DOMINATION OR
INTERFERENCE WITH THE FORMATION OR ADMINISTRATION OF ANY LABOR
ORGANIZATION WERE UNFAIR LABOR PRACTICES.  TO SECURE TO EMPLOYEES THE
BENEFITS OF SELF-ORGANIZATION AND COLLECTIVE BARGAINING THROUGH
REPRESENTATIVES OF THE EMPLOYEES' OWN CHOOSING, THE BOARD WAS
AUTHORIZED BY SEC. 10(C) TO ORDER THE ABANDONMENT OF UNFAIR LABOR
PRACTICES AND TO TAKE AFFIRMATIVE ACTION WHICH WOULD CARRY OUT THE
POLICY OF THE ACT. 

IN RECOMMENDING THE ADOPTION OF THIS LATTER PROVISION THE SENATE
COMMITTEE CALLED ATTENTION TO THE DECREE WHICH, IN THE RAILWAY CLERKS
CASE, HAD COMPELLED THE EMPLOYER TO "DISESTABLISH ITS COMPANY UNION AS
REPRESENTATIVE OF ITS EMPLOYEES."  REPORT OF THE SENATE COMMITTEE ON
EDUCATION AND LABOR, SUPRA.  THE REPORT OF THE HOUSE COMMITTEE ON LABOR
ON THIS FEATURE OF THE ACT, AFTER POINTING OUT THAT COLLECTIVE
BARGAINING IS "A SHAM WHEN THE EMPLOYER SITS ON BOTH SIDES OF THE TABLE
BY SUPPORTING A PARTICULAR ORGANIZATION WITH WHICH HE DEALS," DECLARED:
"THE ORDERS WILL OF COURSE BE ADAPTED TO THE NEED OF THE INDIVIDUAL
CASE; THEY MAY INCLUDE SUCH MATTERS AS REFRAINING FROM COLLECTIVE
BARGAINING WITH A MINORITY GROUP, RECOGNITION OF THE AGENCY CHOSEN BY
THE MAJORITY FOR THE PURPOSES OF COLLECTIVE BARGAINING, POSTING OF
APPROPRIATE BULLETINS, REFRAINING FROM BARGAINING WITH AN ORGANIZATION
CORRUPTED BY UNFAIR LABOR PRACTICES."  REPORT OF THE HOUSE COMMITTEE ON
LABOR, SUPRA, PP. 18, 24. 

IT IS PLAIN THAT THE CHALLENGED PROVISIONS OF THE PRESENT ORDER ARE
OF A KIND CONTEMPLATED BY CONGRESS IN THE ENACTMENT OF SEC. 10(C) AND
ARE WITHIN ITS TERMS.  THERE REMAINS THE QUESTION WHETHER THE FINDINGS
ADEQUATELY SUPPORT THEM. 

THE BOARD'S SUBSIDIARY FINDINGS OF FACT FULLY SUSTAIN ITS CONCLUSION
THAT RESPONDENTS HAD ENGAGED IN UNFAIR LABOR PRACTICES, BY ACTIVE
PARTICIPATION IN THE ORGANIZATION AND ADMINISTRATION OF THE EMPLOYEES
ASSOCIATION, WHICH THEY DOMINATED THROUGHOUT ITS HISTORY, AND TO WHOSE
FINANCIAL SUPPORT THEY HAD CONTRIBUTED; AND THAT THEY HAD INTERFERED
WITH, RESTRAINED AND COERCED THEIR EMPLOYEES IN THE EXERCISE OF THE
RIGHTS CONFIRMED BY SEC. 7 TO FORM FOR THEMSELVES A LABOR ORGANIZATION
AND TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING. 

IT IS UNNECESSARY TO REPEAT IN FULL DETAIL THE FACTS DISCLOSED BY THE
FINDINGS.  THEY SHOW THAT BEFORE THE ENACTMENT OF THE NATIONAL LABOR
RELATIONS ACT, RESPONDENTS, WHOSE EMPLOYEES WERE UNORGANIZED, INITIATED
A PROJECT FOR THEIR ORGANIZATION UNDER COMPANY DOMINATION.  IN THE
COURSE OF ITS EXECUTION OFFICERS OR OTHER REPRESENTATIVES OF RESPONDENT
WERE ACTIVE IN PROMOTING THE PLAN, IN URGING EMPLOYEES TO JOIN, IN THE
PREPARATION OF THE DETAILS OF ORGANIZATION, INCLUDING THE BY-LAWS, IN
PRESIDING OVER ORGANIZATION MEETINGS, AND IN SELECTING EMPLOYEE
REPRESENTATIVES OF THE ORGANIZATION. 

THE BY-LAWS AND REGULATIONS PROVIDED THAT ALL MOTORBUS OPERATORS,
MAINTENANCE MEN AND CLERICAL EMPLOYEES, AFTER THREE MONTHS SERVICE,
AUTOMATICALLY BECAME MEMBERS OF THE ASSOCIATION, AND THAT ONLY
EMPLOYEES WERE ELIGIBLE TO ACT AS EMPLOYEE REPRESENTATIVES.  NO
PROVISIONS WERE MADE FOR MEETINGS OF MEMBERS, NOR WAS A PROCEDURE
ESTABLISHED WHEREBY EMPLOYEES MIGHT INSTRUCT THEIR REPRESENTATIVES, OR
WHEREBY THOSE REPRESENTATIVES MIGHT DISSEMINATE INFORMATION OR
REPORTS.  GRIEVANCES WERE TO BE TAKEN UP WITH REGIONAL COMMITTEES WITH
FINAL REVIEW BY A JOINT REVIEWING COMMITTEE MADE UP OF AN EQUAL NUMBER
OF REGIONAL CHAIRMEN AND OF MANAGEMENT REPRESENTATIVES, BUT REVIEW IN
THOSE CASES COULD NOT BE SECURED UNLESS THERE WAS A JOINT SUBMISSION OF
THE CONTROVERSY BY EMPLOYEE AND MANAGEMENT REPRESENTATIVES. 

CHANGE OF THE BY-LAWS WITHOUT EMPLOYER CONSENT WAS PRECLUDED BY A
PROVISION THAT AMENDMENT SHOULD BE ONLY ON A TWO-THIRDS VOTE OF THE
JOINT REVIEWING COMMITTEE, COMPOSED OF EQUAL NUMBERS OF EMPLOYER AND
EMPLOYEE REPRESENTATIVES.  EMPLOYEES PAID NO DUES, ALL THE ASSOCIATION
EXPENSES BEING BORNE BY THE MANAGEMENT. 

ALTHOUGH THE ASSOCIATION WAS IN TERMS CREATED AS A BARGAINING AGENCY
FOR THE PURPOSE OF "PROVIDING ADEQUATE REPRESENTATION" FOR RESPONDENTS'
EMPLOYEES BY "SECURING FOR THEM SATISFACTORY ADJUSTMENT OF ALL
CONTROVERSIAL MATTERS," IT HAS FUNCTIONED ONLY TO SETTLE INDIVIDUAL
GRIEVANCES.  ON THE ONE RECORDED OCCASION WHEN THE EMPLOYEES SOUGHT A
WAGE INCREASE, THE COMPANY REPRESENTATIVES PREVENTED ITS CONSIDERATION
BY REFUSING TO JOIN IN THE SUBMISSION TO THE JOINT REVIEWING
COMMITTEE.    IN MAY, 1935, SHORTLY BEFORE THE PASSAGE OF THE ACT,
CERTAIN OF RESPONDENTS' PITTSBURGH EMPLOYEES ORGANIZED A LOCAL UNION,
LOCAL DIVISION NO. 1063 OF THE AMALGAMATED ASSOCIATION OF STREET,
ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFFILIATED WITH
THE AMERICAN FEDERATION OF LABOR, AND CONTINUED TO HOLD MEETINGS OF THE
ORGANIZATION AFTER THE PASSAGE OF THE ACT ON JULY 5, 1935.  BEFORE AND
AFTER THAT DATE, RESPONDENTS' OFFICERS WERE ACTIVE IN WARNING EMPLOYEES
AGAINST JOINING THE UNION AND IN THREATENING THEM WITH DISCHARGE IF
THEY SHOULD JOIN, AND IN KEEPING THE UNION MEETINGS UNDER
SURVEILLANCE. 

SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE."  WHETHER THE CONTINUED
RECOGNITION OF THE EMPLOYEES ASSOCIATION BY RESPONDENTS WOULD IN ITSELF
BE A CONTINUING OBSTACLE TO THE EXERCISE OF THE EMPLOYEES' RIGHT OF
SELF-ORGANIZATION AND TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES
OF THEIR OWN CHOOSING, IS AN INFERENCE OF FACT TO BE DRAWN BY THE BOARD
FROM THE EVIDENCE REVIEWED IN ITS SUBSIDIARY FINDINGS.  SEE SWAYNE &
HOYT V. UNITED STATES, 300 U.S. 297. 

WE MAY ASSUME THAT THERE ARE SITUATIONS IN WHICH THE BOARD WOULD NOT
BE WARRANTED IN CONCLUDING THAT THERE WAS ANY OCCASION FOR WITHDRAWAL
OF EMPLOYER RECOGNITION OF AN EXISTING UNION BEFORE AN ELECTION BY
EMPLOYEES UNDER SEC. 9(C), EVEN THOUGH IT HAD ORDERED THE EMPLOYER TO
CEASE UNFAIR LABOR PRACTICES.  BUT HERE RESPONDENTS, BY UNFAIR LABOR
PRACTICES, HAVE SUCCEEDED IN ESTABLISHING A COMPANY UNION SO ORGANIZED
THAT IT IS INCAPABLE OF FUNCTIONING AS A BARGAINING REPRESENTATIVE OF
EMPLOYEES.  WITH NO PROCEDURE FOR MEETINGS OF MEMBERS OR FOR
INSTRUCTING EMPLOYEE REPRESENTATIVES, AND WITH NO POWER TO BRING
GRIEVANCES BEFORE THE JOINT REVIEWING COMMITTEE WITHOUT EMPLOYER
CONSENT, THE ASSOCIATION COULD NOT WITHOUT AMENDMENT OF ITS BY-LAWS BE
USED AS A MEANS OF THE COLLECTIVE BARGAINING CONTEMPLATED BY SEC. 7;
AND AMENDMENT COULD NOT BE HAD WITHOUT THE EMPLOYER'S APPROVAL. 

IN VIEW OF ALL THE CIRCUMSTANCES THE BOARD COULD HAVE THOUGHT THAT
CONTINUED RECOGNITION OF THE ASSOCIATION WOULD SERVE AS A MEANS OF
THWARTING THE POLICY OF COLLECTIVE BARGAINING BY ENABLING THE EMPLOYER
TO INDUCE ADHERENCE OF EMPLOYEES TO THE ASSOCIATION IN THE MISTAKEN
BELIEF THAT IT WAS TRULY REPRESENTATIVE AND AFFORDED AN AGENCY FOR
COLLECTIVE BARGAINING, AND THUS TO PREVENT SELF-ORGANIZATION.  THE
INFERENCES TO BE DRAWN WERE FOR THE BOARD AND NOT THE COURTS.  SWAYNE &
HOYT V. UNITED STATES, SUPRA.  THERE WAS AMPLE BASIS FOR ITS CONCLUSION
THAT WITHDRAWAL OF RECOGNITION OF THE ASSOCIATION BY RESPONDENTS,
ACCOMPANIED BY SUITABLE PUBLICITY, WAS AN APPROPRIATE WAY TO GIVE
EFFECT TO THE POLICY OF THE ACT. 

AS THE ORDER DID NOT RUN AGAINST THE ASSOCIATION IT IS NOT ENTITLED
TO NOTICE AND HEARING.  ITS PRESENCE WAS NOT NECESSARY IN ORDER TO
ENABLE THE BOARD TO DETERMINE WHETHER RESPONDENTS HAD VIOLATED THE
STATUTE OR TO MAKE AN APPROPRIATE ORDER AGAINST THEM.  SEE GENERAL
INVESTMENT CO. V. LAKE SHORE & M.S. RY. CO., 260 U.S. 261, 285-286. 

RESPONDENTS SUGGEST THAT THE CASE HAS BECOME MOOT BY REASON OF THE
FACT THAT SINCE THE BOARD MADE ITS ORDER IT HAS CERTIFIED THE
BROTHERHOOD OF RAILROAD TRAINMEN AS REPRESENTATIVE OF THE MOTORBUS
DRIVERS OF THE PENNSYLVANIA COMPANY FOR PURPOSES OF COLLECTIVE
BARGAINING AND THAT IN A PENDING PROCEEDING UNDER SEC. 9(C) FOR THE
CERTIFICATION OF A REPRESENTATIVE OF THE OTHER PITTSBURGH EMPLOYEES, TO
WHICH THE EMPLOYEES' ASSOCIATION IS NOT A PARTY, THE PENNSYLVANIA
COMPANY AND LOCAL DIVISION NO. 1063, WHO ARE PARTIES, HAVE MADE NO
OBJECTION TO THE PROPOSED CERTIFICATION.  BUT AN ORDER OF THE CHARACTER
MADE BY THE BOARD, LAWFUL WHEN MADE, DOES NOT BECOME MOOT BECAUSE IT IS
OBEYED OR BECAUSE CHANGING CIRCUMSTANCES INDICATE THAT THE NEED FOR IT
MAY BE LESS THAN WHEN MADE. 

WE HAVE CONSIDERED BUT FIND IT UNNECESSARY TO COMMENT UPON OTHER
OBJECTIONS TO THE ORDER, OF LESS MOMENT.  REVERSED. 

FN1  "SEC.  10(C).  THE TESTIMONY TAKEN BY SUCH MEMBER, AGENT OR
AGENCY OR THE BOARD SHALL BE REDUCED TO WRITING AND FILED WITH THE
BOARD.  THEREAFTER, IN ITS DISCRETION, THE BOARD UPON NOTICE MAY TAKE
FURTHER TESTIMONY OR HEAR ARGUMENT.  IF UPON ALL THE TESTIMONY TAKEN
THE BOARD SHALL BE OF THE OPINION THAT ANY PERSON NAMED IN THE
COMPLAINT HAS ENGAGED IN OR IS ENGAGING IN ANY SUCH UNFAIR LABOR
PRACTICE, THEN THE BOARD SHALL STATE ITS FINDINGS OF FACT AND SHALL
ISSUE AND CAUSE TO BE SERVED ON SUCH PERSON AN ORDER REQUIRING SUCH
PERSON TO CEASE AND DESIST FROM SUCH UNFAIR LABOR PRACTICE, AND TO TAKE
SUCH AFFIRMATIVE ACTION, INCLUDING REINSTATEMENT OF EMPLOYEES WITH OR
WITHOUT BACK PAY, AS WILL EFFECTUATE THE POLICIES OF THIS ACT...." 

FN2  ON THE SIGNIFICANCE OF RECOGNITION IN COLLECTIVE BARGAINING SEE
COMMONS AND ANDREWS, PRINCIPLES OF LABOR LEGISLATION (HARPER & BROS.,
4TH ED., 1936), P. 372; CATLIN, THE LABOR PROBLEM (HARPER & BROS.,
1935), PP. 431, 522; RUFENER, PRINCIPLES OF ECONOMICS (HOUGHTON-MIFFLIN
CO., 1927), P. 399; TWENTIETH CENTURY FUND, INC., LABOR AND THE
GOVERNMENT (1935), P. 47; YODER, LABOR ECONOMICS AND LABOR PROBLEMS
(1933), P. 443; U.S. DEPARTMENT OF LABOR, BUREAU OF LABOR STATISTICS,
CHARACTERISTICS OF COMPANY UNIONS, BULLETIN NO. 634, CHS.  VII, XXII. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :






















LABOR BD. V. PACIFIC LINES, 303 U.S. 272 


NO. 504.  ARGUED FEBRUARY 4, 1938.  - DECIDED FEBRUARY 28, 1938.  - 91
F.2D 458, REVERSED. 


1.  NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES,
ANTE, P. 261, FOLLOWED. 

2.  THE EVIDENCE AND SUBSIDIARY FINDINGS IN THIS CASE SUPPORT THE
CONCLUSION OF THE NATIONAL LABOR RELATIONS BOARD THAT CONTINUED
RECOGNITION OF A COMPANY UNION BY AN EMPLOYER WOULD BE A CONTINUING
OBSTACLE TO THE EXERCISE OF THE EMPLOYEES' RIGHT OF SELF-ORGANIZATION
AND OF COLLECTIVELY BARGAINING THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING, AND JUSTIFIED ITS ORDER REQUIRING THE EMPLOYER TO WITHDRAW
ALL RECOGNITION OF SUCH UNION AND GIVE APPROPRIATE NOTICE OF THE
WITHDRAWAL TO EMPLOYEES.  P. 275. 

NATIONAL LABOR RELATIONS BOARD V. PACIFIC GREYHOUND LINES, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 679, TO REVIEW A JUDGMENT SETTING ASIDE, IN
PART, AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, UPON A PETITION
FOR ITS ENFORCEMENT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS CASE, WHICH COMES HERE ON CERTIORARI TO THE COURT OF APPEALS FOR
THE NINTH CIRCUIT, PRESENTS THE SAME ISSUES DISCUSSED IN NO. 413,
NATIONAL LABOR RELATIONS BOARD V. PENNSYLVANIA GREYHOUND LINES, ANTE,
P. 261, BUT ON A SOMEWHAT DIFFERENT STATE OF FACTS.  THE ONLY QUESTION
REQUIRING SEPARATE CONSIDERATION IS WHETHER, IN THE CASE IN WHICH THE
NATIONAL LABOR RELATIONS BOARD HAS ORDERED RESPONDENT TO CEASE CERTAIN
UNFAIR LABOR PRACTICES, INCLUDING THE DOMINATION AND FINANCIAL SUPPORT
OF A COMPANY UNION, THE FACTS JUSTIFY ITS FURTHER ORDER THAT RESPONDENT
WITHDRAW ALL RECOGNITION OF THE UNION AND GIVE APPROPRIATE NOTICE OF
THE WITHDRAWAL TO EMPLOYEES. 

THE COURT OF APPEALS FOR THE NINTH CIRCUIT SUSTAINED THE BOARD'S
FINDINGS AND ALL OF ITS ORDER EXCEPT THE AFFIRMATIVE PARTS RELATING TO
WITHDRAWAL OF RECOGNITION OF THE COMPANY UNION, WHICH IT SET ASIDE.  91
F.(2D) 458.  THE AUTHORITY CONFERRED ON THE BOARD BY SEC. 10(C) OF THE
NATIONAL LABOR RELATIONS ACT TO DIRECT WITHDRAWAL OF EMPLOYER
RECOGNITION WHEN SUCH AN ORDER WILL CARRY OUT THE POLICIES OF THE
NATIONAL LABOR RELATIONS ACT WAS CONSIDERED AND SUSTAINED IN THE
PENNSYLVANIA GREYHOUND LINES CASE, SUPRA.  THE QUESTION CALLING FOR
ATTENTION HERE IS WHETHER THE FACTS FOUND BY THE BOARD AFFORD A BASIS
FOR ITS CONCLUSION THAT THE POLICIES OF THE ACT WILL BE EFFECTUATED BY
THE PRESENT ORDER. 

THE FINDINGS SHOW THAT RESPONDENT, AN INTERSTATE CARRIER BY MOTOR
BUS, TOOK AN ACTIVE AND LEADING PART IN THE ORGANIZATION IN 1933 OF THE
DRIVERS' ASSOCIATION, A LABOR ORGANIZATION OF ITS EMPLOYEES; THAT
RESPONDENT HAD SINCE CONTINUOUSLY INTERFERED WITH AND DOMINATED THE
INTERNAL ADMINISTRATION OF THE ASSOCIATION, AND CONTRIBUTED TO ITS
SUPPORT; THAT THROUGH SUCH DOMINATION IT HAD OBTAINED A "WORKING
AGREEMENT" WITH THE ASSOCIATION IN WHICH IT WAS STIPULATED THAT
GRIEVANCES OF ANY EMPLOYEE SHOULD BE PRESENTED FIRST TO HIS SUPERIOR
OFFICER AND THEN TO RESPONDENT'S PRESIDENT, WHOSE DECISION SHOULD BE
FINAL. 

BEFORE THE ENACTMENT OF THE NATIONAL LABOR RELATIONS ACT, RESPONDENT
TWICE MADE SUCCESSFUL USE OF THE ASSOCIATION AS A MEANS TO FORESTALL
ATTEMPTS TO ORGANIZE ITS EMPLOYEES, ONE IN 1933 BY THE BROTHERHOOD OF
LOCOMOTIVE ENGINEERS AND FIREMEN, AND ANOTHER IN 1934 BY THE EMPLOYEES
THEMSELVES WHO SOUGHT TO ESTABLISH A BROTHERHOOD OF MOTOR COACH
OPERATORS.  RESPONDENT'S OFFICERS WERE ACTIVE IN PERSUADING,
THREATENING AND COERCING EMPLOYEES TO JOIN OR REMAIN MEMBERS OF THE
DRIVERS' ASSOCIATION, AND NOT TO JOIN THE RIVAL UNIONS.  IN 1935,
FOLLOWING THE PASSAGE OF THE NATIONAL LABOR RELATIONS ACT, THERE WAS A
RENEWED BUT UNSUCCESSFUL ATTEMPT BY RESPONDENT'S EMPLOYEES TO ESTABLISH
AN ORGANIZATION AFFILIATED WITH THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS
AND FIREMEN.  THE ATTEMPT WAS MET BY PERSUASIONS AND WARNINGS OF
RESPONDENT'S EMPLOYEES, BY ITS OFFICERS, NOT TO JOIN THE NEW UNION, AND
BY THREATS OF DISCHARGE IF THEY SHOULD JOIN.  THE BOARD FOUND THAT THE
RESPONDENT HAD ENGAGED IN UNFAIR LABOR PRACTICES IN VIOLATION OF SEC.
8(1), (2), AND ORDERED THE CESSATION OF THESE PRACTICES AND WITHDRAWAL
OF RESPONDENT'S RECOGNITION OF THE DRIVERS' ASSOCIATION. 

WHILE THE FORMAL PROVISIONS, IN CONSTITUTION AND BY-LAWS, FOR
INSURING EMPLOYER CONTROL OF THE COMPANY UNION IN THE PENNSYLVANIA CASE
ARE WANTING HERE, THE RECORD SHOWS, AS THE BOARD FOUND, THAT EMPLOYER
CONTROL OF THE DRIVERS' ASSOCIATION WAS NONE THE LESS EFFECTIVE. 
DURING A PERIOD OF THREE YEARS IT HAD BEEN SUCCESSFULLY USED BY
RESPONDENT AS AN INSTRUMENT FOR PREVENTING THREE SUCCESSIVE ATTEMPTS
FOR THE ORGANIZATION BY RESPONDENT'S EMPLOYEES OF A UNION FREE FROM
COMPANY DOMINATION.  IN ORDERING WITHDRAWAL OF RECOGNITION OF THE
DRIVERS' ASSOCIATION BY RESPONDENT, THE BOARD POINTED OUT THAT A MERE
ORDER TO CEASE THE UNFAIR LABOR PRACTICES "WOULD NOT SET FREE THE
EMPLOYEE'S IMPULSE TO SEEK THE ORGANIZATION WHICH WOULD MOST
EFFECTIVELY REPRESENT HIM"; THAT CONTINUED RECOGNITION OF THE DRIVERS'
ASSOCIATION WOULD PROVIDE RESPONDENT "WITH A DEVICE BY WHICH ITS POWER
MAY NOW BE MADE EFFECTIVE UNOBTRUSIVELY, ALMOST WITHOUT FURTHER ACTION
ON ITS PART.  EVEN THOUGH HE WOULD NOT HAVE FREELY CHOSEN" THE
ASSOCIATION "AS AN INITIAL PROPOSITION, THE EMPLOYEE, ONCE HAVING
CHOSEN, MAY BY FORCE OF A TIMOROUS HABIT, BE HELD FIRMLY TO HIS
CHOICE.  THE EMPLOYEE MUST BE RELEASED FROM THESE COMPULSIONS." 

WHETHER THE CONTINUED RECOGNITION OF THE DRIVERS' ASSOCIATION BY
RESPONDENT WOULD BE A CONTINUING OBSTACLE TO THE EXERCISE OF THE
EMPLOYEES' RIGHT OF SELF-ORGANIZATION AND TO BARGAIN COLLECTIVELY
THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, WAS AN INFERENCE OF FACT
WHICH THE BOARD COULD DRAW IF THERE WAS EVIDENCE TO SUPPORT IT.
CANNOT SAY THAT THE BOARD'S CONCLUSION WAS WITHOUT SUPPORT IN THE
EVIDENCE AND IN THE SUBSIDIARY FINDINGS WHICH RESPONDENT DOES NOT
CHALLENGE.  REVERSED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :







UNITED STATES V. KLEIN, 303 U.S. 276 


NO. 439.  ARGUED FEBRUARY 11, 1938.  - DECIDED FEBRUARY 28, 1938.  - 326
PA. 260 -  192 A. 256, AFFIRMED. 


1.  MONEYS DUE BY A DEFENDANT IN A SUIT IN THE FEDERAL DISTRICT COURT,
TO CERTAIN BONDHOLDERS WHOSE WHEREABOUTS WERE UNKNOWN, WERE BY
DIRECTION OF THE COURT PAID INTO ITS REGISTRY.  UNCLAIMED FOR MORE THAN
FIVE YEARS, THE FUND WAS DEPOSITED IN THE U.S. TREASURY, AS REQUIRED BY
R.S. SEC. 996.  UNDER THAT SECTION THE MONEY REMAINS SUBJECT TO THE
ORDER OF THE DISTRICT COURT TO BE PAID TO THE PERSONS ENTITLED TO IT
UPON FULL PROOF OF THEIR RIGHT.  IN THE EXERCISE OF A JURISDICTION
CONFERRED BY STATE STATUTE, A STATE COURT SUBSEQUENTLY DECREED ESCHEAT
OF THE FUND AND DIRECTED THE STATE ESCHEATOR TO APPLY TO THE DISTRICT
COURT FOR AN ORDER THAT THE MONEY BE PAID TO HIM.  THERE WAS NO
CONTENTION ON BEHALF OF THE UNITED STATES OF ACTUAL OR POSSIBLE ESCHEAT
TO THE UNITED STATES, OR THAT IT HAD ANY INTEREST IN THE MONEY ADVERSE
TO THE UNKNOWN BONDHOLDERS.  HELD, THAT THE DECREE OF THE STATE COURT
WAS NOT AN UNCONSTITUTIONAL INTERFERENCE WITH THE FEDERAL COURT NOR AN
INVASION OF THE SOVEREIGNTY OF THE UNITED STATES.  PP. 280, 282. 

2.  WHILE A FEDERAL COURT WHICH HAS TAKEN POSSESSION OF PROPERTY IN
THE EXERCISE OF THE JUDICIAL POWER CONFERRED BY THE CONSTITUTION AND
LAWS OF THE UNITED STATES IS SAID TO ACQUIRE EXCLUSIVE JURISDICTION,
THE JURISDICTION IS EXCLUSIVE ONLY IN SO FAR AS RESTRICTION OF THE
POWER OF OTHER COURTS IS NECESSARY FOR APPROPRIATE CONTROL AND
DISPOSITION OF THE PROPERTY BY THE FEDERAL COURT.  P. 281. 

UNITED STATES V. KLEIN, ESCHEATOR OF PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

APPEAL FROM A DECREE AFFIRMING A DECREE DECLARING AN ESCHEAT OF
CERTAIN MONEYS, THERETOFORE DEPOSITED IN THE FEDERAL TREASURY PURSUANT
TO R.S. SEC. 996, AND AUTHORIZING THE STATE ESCHEATOR TO PROSECUTE THE
STATE'S CLAIM TO THEM.  THE UNITED STATES APPEARED IN OPPOSITION TO THE
PROCEEDINGS BELOW, ASSERTING JURISDICTIONAL OBJECTIONS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER STATUTES OF THE COMMONWEALTH OF
PENNSYLVANIA, PURDON'S PENN.  STATUTES, TIT. 27, SECS. 41, 45, 282,
334, ARE UNCONSTITUTIONAL BECAUSE THEY AUTHORIZE INTERFERENCE WITH A
FEDERAL COURT AND AN INVASION OF THE SOVEREIGNTY OF THE UNITED STATES,
IN SO FAR AS THEY PURPORT TO CONFER JURISDICTION ON A STATE TRIBUNAL TO
DECLARE THE ESCHEAT OF MONEYS DEPOSITED IN THE REGISTRY OF THE FEDERAL
COURT AND LATER COVERED INTO THE TREASURY OF THE UNITED STATES. 

IN A SUIT BROUGHT BY SECURED BONDHOLDERS IN THE DISTRICT COURT FOR
EASTERN PENNSYLVANIA TO COMPEL PAYMENT OF THE BONDS BY A DEFENDANT ON
THE GROUND THAT IT HAD APPROPRIATED THE SECURITY TO ITSELF, A DECREE
WAS ENTERED IN FAVOR OF THE PLAINTIFFS AND OTHER BONDHOLDERS SIMILARLY
SITUATED, WITH PROVISION FOR NOTICE TO THE LATTER THAT THEY FILE THEIR
CLAIMS IN THE SUIT.  BROWN V. PENNSYLVANIA CANAL CO., 229 FED. 444;
PENNSYLVANIA CANAL CO. V. BROWN, 235 FED. 669; BROWN V. PENNSYLVANIA R.
CO., 250 FED. 513.  IT APPEARING THAT CERTAIN OF THE BONDHOLDERS HAD
NOT FILED THEIR CLAIMS AND COULD NOT BE FOUND, THE DEFENDANT WAS
DIRECTED BY THE COURT TO PAY INTO ITS REGISTRY THE MONEY DUE TO SUCH
BONDHOLDERS, WHICH WAS THEN PLACED IN A DESIGNATED DESPOSITARY OF THE
UNITED STATES, IN THE NAME AND TO THE CREDIT OF THE COURT, PURSUANT TO
R.S. SEC. 995, 28 U.S.C. SEC. 851.  ON JUNE 30, 1926, THE FUND WAS
DEPOSITED IN THE TREASURY OF THE UNITED STATES AS REQUIRED BY R.S. SEC.
996, 28 U.S.C., SEC. 852, IN THE CASE OF FUNDS PAID INTO COURT AND
UNCLAIMED FOR MORE THAN FIVE YEARS. 

IN 1934 THE PRESENT APPELLEE, AS ESCHEATOR OF THE COMMONWEALTH OF
PENNSYLVANIA, PROCEEDING UNDER THE PENNSYLVANIA STATUTES WHICH
AUTHORIZE THE ESCHEAT OF MONEYS PAID INTO COURT WHERE THE PERSONS
ENTITLED TO THEM HAVE REMAINED UNKNOWN FOR SEVEN YEARS, PETITIONED THE
DISTRICT COURT TO DECLARE AN ESCHEAT OF THE FUND.  THE COURT DISMISSED
THE PETITION, WITHOUT PREJUDICE, ON THE GROUNDS THAT APPELLEE HAD NOT
YET PROCURED A DECLARATION OF ESCHEAT, WHICH WAS DEEMED NECESSARY IN
ORDER TO PERFECT THE COMMONWEALTH'S TITLE, AND THAT THE COURT WAS
WITHOUT JURISDICTION TO MAKE SUCH A DECLARATION.  THEREUPON THE
PENNSYLVANIA ESCHEAT STATUTES WERE AMENDED, ACT OF JUNE 28, 1935, P.L.
475, TO CONFER UPON THE COURT OF COMMON PLEAS JURISDICTION TO DECREE AN
ESCHEAT OF MONEYS DEPOSITED IN THE CUSTODY OR UNDER THE CONTROL OF ANY
COURT OF THE UNITED STATES WITHIN THE COMMONWEALTH.  FN1 

THE PRESENT SUIT WAS BROUGHT BY APPELLEE IN THE COURT OF COMMON
PLEAS, NO. 5, OF PHILADELPHIA COUNTY, UPON A PETITION SETTING OUT THE
FACTS ALREADY DETAILED AND PRAYING A DECLARATION THAT THE FUND HAD
ESCHEATED TO THE COMMONWEALTH.  THE UNITED STATES APPEARED IN THE SUIT
AND MOVED TO DISMISS THE PETITION ON THE GROUND THAT THE STATE COURT
WAS WITHOUT JURISDICTION TO ESCHEAT MONEYS IN THE CUSTODY OF THE UNITED
STATES OR OF ITS COURTS.  THE ORDER OF THE COURT OF COMMON PLEAS
GRANTING THE MOTION WAS REVERSED BY THE SUPREME COURT OF PENNSYLVANIA,
WHICH HELD THAT THE STATUTES RELATING TO ESCHEAT OF FUNDS IN THE
CUSTODY OF FEDERAL COURTS, CONFERRED JURISDICTION ON THE COURT TO
DECLARE THE ESCHEAT AND WAS SUBJECT TO NO CONSTITUTIONAL INFIRMITY
SINCE EXERCISE OF THAT JURISDICTION INVOLVED NO INTERFERENCE WITH THE
FEDERAL COURT AND NO ATTEMPTED CONTROL OVER FUNDS IN ITS CUSTODY.  322
PA. 481; 192 ATL. 256. 

THE UNITED STATES THEN FILED AN ANSWER AND UPON A TRIAL OF THE ISSUES
THE COURT OF COMMON PLEAS GAVE ITS DECREE DECLARING THAT THE FUND HAD
ESCHEATED TO THE COMMONWEALTH AND THAT APPELLEE HAD AUTHORITY TO CLAIM
IT, AND DIRECTING HIM TO APPLY TO THE DISTRICT COURT FOR AN ORDER THAT
THE MONEYS BE PAID TO HIM AS ESCHEATOR.  THE STATE SUPREME COURT
AFFIRMED SO MUCH OF THE DECREE AS DECLARED THE ESCHEAT AND AUTHORIZED
APPELLEE TO PROSECUTE THE CLAIM OF THE COMMONWEALTH TO THE MONEYS.  326
PA. 260; 192 ATL. 256.  FROM ITS DECREE OF AFFIRMANCE THE CASE COMES
HERE ON APPEAL UNDER SEC. 237 OF THE JUDICIAL CODE. 

MONEYS PAID INTO FEDERAL COURTS HAS BEEN ADJUDICATED AND THEY ARE
UNCLAIMED FOR MORE THAN FIVE YEARS, THEY SHALL BE DEPOSITED IN THE
TREASURY OF THE UNITED STATES, IN THE NAME OF THE UNITED STATES.  IT
FURTHER PROVIDES:  "ANY PERSON OR PERSONS OR ANY CORPORATION OR COMPANY
ENTITLED TO ANY SUCH MONEY MAY, ON PETITION TO THE COURT FROM WHICH THE
MONEY WAS RECEIVED  ...  AND UPON NOTICE TO THE UNITED STATES ATTORNEY
AND FULL PROOF OF RIGHT THERETO, OBTAIN AN ORDER OF COURT DIRECTING THE
PAYMENT OF SUCH MONEY TO THE CLAIMANT, AND THE MONEY DEPOSITED AS
AFORESAID SHALL CONSTITUTE AND BE A PERMANENT APPROPRIATION FOR
PAYMENTS IN OBEDIENCE TO SUCH ORDERS."  FN2 

THE GOVERNMENT DOES NOT, IN PLEADING OR ARGUMENT, SET UP ANY RIGHT,
TITLE OR INTEREST IN THE PRESENT FUND ADVERSE TO THE UNKNOWN
BONDHOLDERS.  IT DOES NOT CONTEND THAT THE FUND HAS BEEN OR CAN BE
ESCHEATED TO THE UNITED STATES.  IT AGREES WITH THE CONTENTION OF
APPELLEE, WHICH WE ACCEPT AS CORRECTLY INTERPRETING THE APPLICABLE
FEDERAL STATUTES, THAT THE FUND REMAINS SUBJECT TO THE ORDER OF THE
DISTRICT COURT TO BE PAID TO THE PERSONS LAWFULLY ENTITLED TO IT UPON
PROOF OF THEIR OWNERSHIP.  BUT IT INSISTS HERE, AS IN THE STATE COURTS,
THAT THE DECREE DECLARING THE ESCHEAT IS AN UNCONSTITUTIONAL
INTERFERENCE WITH A COURT OF THE UNITED STATES, AN INVASION OF ITS
SOVEREIGNTY, AND IS AN ATTEMPT, VOID UNDER THE FOURTEENTH AMENDMENT, TO
EXERCISE JURISDICTION OVER THE ABSENT BONDHOLDERS AND THE MONEYS,
NEITHER OF WHICH ARE SHOWN TO BE WITHIN THE STATE. 

WHILE A FEDERAL COURT WHICH HAS TAKEN POSSESSION OF PROPERTY IN THE
EXERCISE OF THE JUDICIAL POWER CONFERRED UPON IT BY THE CONSTITUTION
AND LAWS OF THE UNITED STATES IS SAID TO ACQUIRE EXCLUSIVE
JURISDICTION, THE JURISDICTION IS EXCLUSIVE ONLY IN SO FAR AS
RESTRICTION OF THE POWER OF OTHER COURTS IS NECESSARY FOR THE FEDERAL
COURT'S APPROPRIATE CONTROL AND DISPOSITION OF THE PROPERTY.  PENN
GENERAL CASUALTY CO. V. PENNSYLVANIA EX REL. SCHNADER, 294 U.S. 189;
SEE LEADVILLE COAL CO. V. MCCREERY, 141 U.S. 475, 477.  OTHER COURTS
HAVING JURISDICTION TO ADJUDICATE RIGHTS IN THE PROPERTY DO NOT,
BECAUSE THE PROPERTY IS POSSESSED BY A FEDERAL COURT, LOSE POWER TO
RENDER ANY JUDGMENT NOT IN CONFLICT WITH THAT COURT'S AUTHORITY TO
DECIDE QUESTIONS WITHIN ITS JURISDICTION AND TO MAKE EFFECTIVE SUCH
DECISIONS BY ITS CONTROL OF THE PROPERTY.  PENN GENERAL CASUALTY CO. V.
PENNSYLVANIA EX REL. SCHNADER, SUPRA; SEE HEIDRITTER V. ELIZABETH OIL
CLOTH CO., 112 U.S. 294, 304; CF. BUCK V. COLBATH, 3 WALL.  334, 342;
RIEHLE V. MARGOLIES, 279 U.S. 218.  SIMILARLY A FEDERAL COURT MAY MAKE
A LIKE ADJUDICATION WITH RESPECT TO PROPERTY IN THE POSSESSION OF A
STATE COURT.  YONLEY V. LAVENDER, 21 WALL.  276; BYERS V. MCAULEY, 149
U.S. 608, 620; SECURITY TRUST CO. V. BLACK RIVER NATIONAL BANK, 187
U.S. 211, 227; WATERMAN V. CANAL-LOUISIANA BANK & T. CO., 215 U.S. 33,
43-46; COMMONWEALTH TRUST CO. V. BRADFORD, 297 U.S. 613, 619; GENERAL
BAKING CO. V. HARR, 300 U.S. 433. 

IN THIS CASE JURISDICTION WAS ACQUIRED BY THE DISTRICT COURT, BY
REASON OF DIVERSITY OF CITIZENSHIP, TO ADJUDICATE THE RIGHTS OF THE
PARTIES.  THAT FUNCTION PERFORMED, IT NOW RETAINS JURISDICTION FOR THE
SOLE PURPOSE OF MAKING DISPOSITION OF THE FUND UNDER ITS CONTROL, BY
ORDERING PAYMENT OF IT TO THE PERSONS ENTITLED AS DIRECTED BY THE
FEDERAL STATUTE.  BEYOND WHATEVER IS NEEDFUL AND APPROPRIATE TO THE
ACCOMPLISHMENT OF THAT END, THE JURISDICTION AND POSSESSION OF THE
FEDERAL DISTRICT COURT DOES NOT OPERATE TO CURTAIL THE POWER WHICH THE
STATE MAY CONSTITUTIONALLY EXERCISE OVER PERSONS AND PROPERTY WITHIN
ITS TERRITORY. 

THE PRESENT DECREE FOR ESCHEAT OF THE FUND IS NOT FOUNDED ON
POSSESSION AND DOES NOT DISTURB OR PURPORT TO AFFECT THE TREASURY'S
POSSESSION OF THE FUND OR THE DISTRICT COURT'S AUTHORITY OVER IT.  NOR
COULD IT DO SO.  PENN GENERAL CASUALTY CO. V. PENNSYLVANIA, SUPRA;
UNITED STATES V. BANK OF NEW YORK & T. CO., 296 U.S. 463, 478.  AT MOST
THE DECREE OF THE STATE COURT PURPORTS TO BE AN ADJUDICATION UPON THE
TITLE OF THE UNKNOWN CLAIMANTS IN THE FUND BY A PROCEEDING IN THE
NATURE OF AN INQUEST OF OFFICE AS IN THE CASE OF ESCHEATED LANDS,
COMPARE SECURITY SAVINGS BANK V. CALIFORNIA, 263 U.S. 282, 287, WITH
HAMILTON V. BROWN, 161 U.S. 256, 263, AND TO CONFIRM THE AUTHORITY OF
APPELLEE TO MAKE CLAIM TO THE MONEYS.  IT IS SUBORDINATE TO EVERY RIGHT
ASSERTED AND DECREED IN THE FEDERAL SUIT AND EFFECTIVE ONLY SO FAR AS
IT ESTABLISHES RIGHTS DERIVED FROM THEM.  NEITHER THE NATURE OF THE
SUIT IN THE DISTRICT COURT NOR THE FEDERAL STATUTES PRECLUDE TRANSFER
OF OR CHANGE IN THE INTEREST OF THE UNKNOWN CLAIMANTS, EITHER BY
JUDICIAL PROCEEDINGS IN THE STATE COURT OR OTHERWISE, PENDING FINAL
DISPOSITION OF THE FUND BY THE FEDERAL COURT.  SECTION 996 OF THE
REVISED STATUTES CONTEMPLATES THAT CHANGES IN OWNERSHIP OF THE FUND MAY
OCCUR, SINCE IT PROVIDES THAT AFTER THE RIGHT TO THE FUND HAS BEEN
FINALLY ADJUDICATED AND IT HAS BEEN COVERED INTO THE TREASURY IT SHALL
BE PAID OVER TO ANY PERSON ENTITLED, UPON FULL PROOF OF HIS RIGHT TO
RECEIVE IT. 

SINCE THE GOVERNMENT HAS NOT SET UP AND DOES NOT ASSERT ANY CLAIM OR
INTEREST IN THE FUND APART FROM THE POSSESSION ACQUIRED UNDER THE
DECREE OF THE DISTRICT COURT AND THE STATUTES OF THE UNITED STATES, IT
IS UNNECESSARY TO CONSIDER NOW THE EFFECT ON THE DECREE OF THE STATE
COURT OF THE FUND'S ABSENCE FROM THE STATE, AND THE ABSENCE OR
NONRESIDENCE OF THE UNKNOWN CLAIMANTS, IF SUCH IS THE CASE.  ALL SUCH
QUESTIONS WILL BE OPEN AND MAY BE RAISED AND DECIDED WHENEVER
APPLICATION IS MADE TO THE DISTRICT COURT FOR PAYMENT OVER OF THE
FUND.  AFFIRMED. 

FN1  AS AMENDED, THE STATUTES PROVIDE: 

"SEC. 41....  WHENEVER AN ESCHEAT HAS OCCURRED, OR SHALL OCCUR, OF
ANY MONEY OR PROPERTY DEPOSITED IN THE CUSTODY OF, OR UNDER THE CONTROL
OF, ANY COURT OF THE UNITED STATES IN AND FOR ANY DISTRICT WITHIN THIS
COMMONWEALTH, OR IN THE CUSTODY OF ANY DEPOSITORY, CLERK OR OTHER
OFFICER OF SUCH COURT, THE COURT OF COMMON PLEAS OF THE COUNTY IN WHICH
SUCH COURT OF THE UNITED STATES SITS, SHALL HAVE JURISDICTION TO
ASCERTAIN IF AN ESCHEAT HAS OCCURRED, AND TO ENTER A JUDGMENT OR DECREE
OF ESCHEAT IN FAVOR OF THE COMMONWEALTH. 

"SEC. 282....  AFTER THE OWNER, BENEFICIAL OWNER, OR PERSON ENTITLED
TO ANY OF THE FOLLOWING NAMED MONEYS OR PROPERTY, SHALL BE AND REMAIN
UNKNOWN, OR THE WHEREABOUTS THEREOF SHALL HAVE BEEN UNKNOWN, FOR THE
PERIOD OF SEVEN SUCCESSIVE YEARS, SUCH MONEYS OR PROPERTY SHALL BE
ESCHEATABLE TO THE COMMONWEALTH, AND SHALL BE ESCHEATED IN THE MANNER
HEREINAFTER PROVIDED, WITH INTEREST ACTUALLY ACCRUED THEREON TO THE
DATE OF THE DECREE FOR THE ESCHEAT OF THE SAME, NAMELY:... 

"(B)  ANY MONEYS, ESTATE, OR EFFECTS PAID INTO OR DEPOSITED IN ANY
COURT OF THIS COMMONWEALTH, OR IN ANY FEDERAL COURT IN AND FOR ANY
DISTRICT WITHIN THE COMMONWEALTH, OR IN THE CUSTODY OF ANY OFFICER OF
ANY SUCH COURT. 

"SEC. 334.  THAT WHENSOEVER ANY MONEY, ESTATE OR EFFECTS, SHALL HAVE
BEEN, OR SHALL HEREAFTER BE PAID INTO, OR DEPOSITED IN THE CUSTODY OR
BE UNDER THE CONTROL OF ANY COURT OF THIS COMMONWEALTH, OR OF ANY COURT
OF THE UNITED STATES IN AND FOR ANY DISTRICT WITHIN THIS COMMONWEALTH,
OR SHALL BE IN THE CUSTODY OF ANY DEPOSITORY, REGISTRY, OR OF ANY
RECEIVER, CLERK, OR OTHER OFFICER OF ANY OF SAID COURTS, AND THE
RIGHTFUL OWNER OR OWNERS THEREOF SHALL HAVE BEEN OR SHALL BE UNKNOWN
FOR THE SPACE OF SEVEN YEARS, THE SAME SHALL ESCHEAT TO THE
COMMONWEALTH, SUBJECT TO ALL LEGAL DEMANDS ON THE SAME." 

FN2  THE PERMANENT APPROPRIATION REPEAL ACT, JUNE 26, 1934, C. 756,
48 STAT. 1224, 1230, SEC. 17, DECLARES THAT APPROPRIATION ACCOUNTS
APPEARING ON THE BOOKS OF THE GOVERNMENT, INCLUDING "UNCLAIMED MONEYS
OF INDIVIDUALS WHOSE WHEREABOUTS ARE UNKNOWN (JUSTICE)," "ARE
ABOLISHED, AND ANY UNOBLIGATED BALANCES UNDER SUCH ACCOUNTS AS OF JUNE
30, 1935, SHALL BE COVERED INTO A TRUST FUND RECEIPT ACCOUNT IN THE
TREASURY TO BE DESIGNATED 'UNCLAIMED MONEYS OF INDIVIDUALS WHOSE
WHEREABOUTS ARE UNKNOWN.'  ...  THERE ARE AUTHORIZED TO BE
APPROPRIATED, ANNUALLY, FROM SUCH ACCOUNT SUCH SUMS AS MAY BE NECESSARY
TO MEET ANY EXPENDITURES OF THE CHARACTER NOW CHARGEABLE TO THE
APPROPRIATION ACCOUNTS ABOLISHED BY THIS SECTION...." 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :




SAINT PAUL MERCURY INDEMNITY CO. V. RED CAB CO., 303 U.S. 283 


NO. 274.  SUBMITTED JANUARY 10, 1938.  - DECIDED FEBRUARY 28, 1938.  -
90 F.2D 229, REVERSED. 


1.  THERE IS A STRONG PRESUMPTION THAT THE PLAINTIFF IN A STATE COURT
HAS NOT CLAIMED A LARGE AMOUNT IN ORDER TO CONFER JURISDICTION BY
REMOVAL ON A FEDERAL COURT, AND THAT THE PARTIES HAVE NOT COLLUDED TO
THAT END.  P. 290. 

2.  THE STATUS OF THE CASE AS DISCLOSED BY THE PLAINTIFF'S COMPLAINT
IS CONTROLLING IN THE CASE OF A REMOVAL, SINCE THE DEFENDANT MUST FILE
HIS PETITION BEFORE THE TIME FOR ANSWER OR FOREVER LOSE HIS RIGHT TO
REMOVE.  P. 291. 

3.  JURISDICTION OF THE DISTRICT COURT ACQUIRED THROUGH REMOVAL IS
NOT LOST BY PLAINTIFF'S SUBSEQUENT REDUCTION OF HIS CLAIM TO LESS THAN
THE JURISDICTIONAL AMOUNT.  P. 292. 

SAINT PAUL MERCURY INDEMNITY CO. V. RED CAB COMPANY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 302 U.S. 669, TO REVIEW A JUDGMENT DISMISSING AN APPEAL
FROM A JUDGMENT RECOVERED IN AN ACTION ON A CONTRACT OF INSURANCE.  THE
ACTION HAD BEEN REMOVED FROM A STATE COURT.  THE RESPONDENT HERE
CONCEDED THAT THE RULING BELOW WAS ERRONEOUS AND PRAYED THAT THE CAUSE
BE REMANDED FOR DECISION OF THE MERITS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE DECISION UNDER REVIEW IS THAT, ALTHOUGH, AT THE TIME OF REMOVAL
OF A CAUSE FROM A STATE COURT, THE COMPLAINT DISCLOSED AN AMOUNT IN
CONTROVERSY REQUISITE TO THE FEDERAL COURT'S JURISDICTION, A SUBSEQUENT
AMENDMENT, REDUCING THE SUM CLAIMED TO SUBSTANTIALLY LESS THAN THAT
AMOUNT, NECESSITATES REMAND TO THE STATE COURT.  WE GRANTED THE WRIT OF
CERTIORARI BECAUSE OF ALLEGED CONFLICT WITH OUR DECISIONS AND WITH
THOSE OF OTHER FEDERAL COURTS. 

THE RESPONDENT, A CORPORATION OF INDIANA, ISSUED A SUMMONS OUT OF THE
SUPERIOR COURT OF MARION COUNTY, INDIANA, AGAINST THE PETITIONER, A
MINNESOTA CORPORATION DOING BUSINESS IN INDIANA, AND ONE HARLAN AS ITS
AGENT.  THE COMPLAINT ALLEGED THAT THE RESPONDENT WAS SUBJECT TO THE
PROVISIONS OF THE INDIANA WORKMEN'S COMPENSATION ACT AND HAD ENTERED
INTO A CONTRACT OF INSURANCE WITH THE PETITIONER, EVIDENCED BY A
BINDER, WHEREBY THE PETITIONER INSURED THE RESPONDENT AGAINST LOSS OR
EXPENSE BY REASON OF CLAIMS FOR COMPENSATION FOR A PERIOD OF THIRTY
DAYS FROM DECEMBER 30, 1933, AND AGREED TO ACT FOR THE RESPONDENT IN
THE FILING OF REPORTS AND NOTICES UNDER THE ACT; THAT, DURING THE TERM
OF THE INSURANCE, EMPLOYES OF THE RESPONDENT HAD SUFFERED INJURY IN THE
COURSE OF EMPLOYMENT AND MADE CLAIMS THEREFOR; THAT THE PETITIONER HAD
BEEN NOTIFIED OF EACH INJURY AND INVESTIGATED IT IN CONNECTION WITH THE
CLAIM FOR COMPENSATION; THAT AFTER THE EXPIRATION OF THE CONTRACT THE
PETITIONER NOTIFIED THE RESPONDENT THAT IT WOULD NOT RECOGNIZE ANY OF
THE CLAIMS AND DENIED LIABILITY UNDER THE BINDER; THAT AS A CONSEQUENCE
RESPONDENT WAS COMPELLED TO EMPLOY ATTORNEYS, INVESTIGATORS, AND
MEDICAL ASSISTANTS TO INVESTIGATE AND SATISFY CLAIMS COVERED BY THE
CONTRACT AND TO PAY EMPLOYES WHO HAD SUFFERED INJURIES DURING THE
CONTRACT PERIOD, AND TO PAY, OR OBLIGATE ITSELF TO PAY, FOR MEDICAL,
HOSPITAL, OR DENTAL BILLS IN CONNECTION WITH SUCH INJURIES; TO THE
DAMAGE OF THE RESPONDENT IN THE SUM OF $4,000.  IT WAS ALLEGED THAT THE
PETITIONER HAD ACTED, IN MAKING THE CONTRACT, THROUGH HARLAN, ITS
AUTHORIZED AGENT AND REPRESENTATIVE, AND AN ORDER WAS PRAYED THAT
HARLAN RETAIN ALL MONEYS DUE BY HIM TO THE PETITIONER FOR THE PURPOSE
OF ANSWERING ANY JUDGMENT WHICH MIGHT BE RECOVERED.  THE COMPLAINT
CONCLUDED BY DEMANDING $4,000 AND OTHER APPROPRIATE RELIEF.  UPON THE
PETITIONER'S TIMELY APPLICATION THE CAUSE WAS REMOVED TO THE UNITED
STATES DISTRICT COURT FOR SOUTHERN INDIANA.  THE RESPONDENT THEREAFTER
FILED AN AMENDED COMPLAINT, THE SUBSTANCE OF WHICH IS NOT NOW MATERIAL,
AND LATER A "SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT AND FOR
DAMAGES," IN WHICH THE ALLEGATIONS OF THE ORIGINAL COMPLAINT WERE
REPEATED AND DAMAGES WERE CLAIMED IN THE SUM OF $4,000.  AN EXHIBIT WAS
ATTACHED WHICH GAVE THE NAMES OF THE EMPLOYES AND THE AMOUNTS EXPENDED
IN CONNECTION WITH THEIR ASSERTED INJURIES TOTALING $1,380.89.  THE
COURT DISMISSED HARLAN AS A DEFENDANT, TRANSFERRED THE CAUSE TO THE LAW
DOCKET, AND OVERRULED A DEMURRER TO THE COMPLAINT AS NOT STATING FACTS
SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION.  THE ANSWER DENIED THE
MAKING OF THE CONTRACT.  A JURY TRIAL WAS WAIVED AND THE COURT MADE
FINDINGS, STATED ITS CONCLUSIONS, AND ENTERED JUDGMENT FOR THE
RESPONDENT FOR $1,162.98.  THE PETITIONER APPEALED.  THE COURT OF
APPEALS REFUSED TO DECIDE THE MERITS ON THE GROUND THAT AS THE RECORD
SHOWED RESPONDENT'S CLAIM DID NOT EQUAL THE AMOUNT NECESSARY TO GIVE
THE DISTRICT COURT JURISDICTION, THE CASE SHOULD HAVE BEEN REMANDED TO
THE STATE COURT.  FN1 

THE QUESTION PRESENTED IS ONE OF STATUTORY CONSTRUCTION.  THE ACT
DEFINING THE JURISDICTION OF DISTRICT COURTS OF THE UNITED STATES IS
SEC. 24 OF THE JUDICIAL CODE.  FN2  SO FAR AS HERE MATERIAL, THE CODE
CONFERS JURISDICTION OF A SUIT OF A CIVIL NATURE, WHERE THE MATTER IN
CONTROVERSY EXCEEDS, EXCLUSIVE OF INTEREST AND COSTS, THE SUM OR VALUE
OF $3,000 AND IS BETWEEN CITIZENS OF DIFFERENT STATES. 

AUTHORITY FOR REMOVAL OF CERTAIN CAUSES FROM A STATE TO A FEDERAL
COURT WAS FIRST GIVEN BY SEC. 12 OF THE JUDICIARY ACT OF 1789  FN3
WHICH PERMITTED REMOVAL OF A CIVIL SUIT, INSTITUTED BY A CITIZEN OF THE
STATE IN WHICH THE SUIT WAS BROUGHT, AGAINST A CITIZEN OF ANOTHER
STATE, WHERE THE MATTER IN DISPUTE EXCEEDED THE SUM OR VALUE OF $500,
EXCLUSIVE OF COSTS.  SUCH REMOVAL COULD BE HAD ONLY AT THE INSTANCE OF
THE NONRESIDENT DEFENDANT.  THE ACT OF JULY 27, 1866,  FN4 ENLARGED THE
PRIVILEGE OF REMOVAL BY PROVIDING THAT IF, IN SUCH A CIVIL SUIT, IT WAS
SHOWN THAT A NONRESIDENT DEFENDANT WAS PARTY TO A SEPARABLE
CONTROVERSY, WHICH COULD BE DETERMINED WITHOUT THE PRESENCE OF OTHER
DEFENDANTS, THAT DEFENDANT MIGHT REMOVE THE CAUSE. 

THE JUDICIARY ACT OF 1875  FN5  ALTERED PREEXISTING LAW TO PERMIT
SUITS INVOLVING A CONTROVERSY BETWEEN CITIZENS OF DIFFERENT STATES TO
BE REMOVED BY EITHER PARTY.  THE JUDICIARY ACTS OF 1887-1888  FN6
INCREASED THE JURISDICTIONAL AMOUNT TO MORE THAN $2,000, EXCLUSIVE OF
INTEREST AND COSTS, AND CONFINED THE RIGHT OF REMOVAL TO A NONRESIDENT
DEFENDANT, AND THE JUDICIAL CODE INCREASED THE LIMIT TO OVER $3,000,
EXCLUSIVE OF INTEREST AND COSTS, AND ALSO RESTRICTED THE PRIVILEGE TO
NONRESIDENT DEFENDANTS.  FN7  THE STATUTE GOVERNING DISMISSAL OR REMAND
FOR WANT OF JURISDICTION IS SEC. 37 OF THE CODE.  FN8 

"IF IN ANY SUIT COMMENCED IN A DISTRICT COURT, OR REMOVED FROM A
STATE COURT TO A DISTRICT COURT OF THE UNITED STATES, IT SHALL APPEAR
TO THE SATISFACTION OF THE SAID DISTRICT COURT, AT ANY TIME AFTER SUCH
SUIT HAS BEEN BROUGHT OR REMOVED THERETO, THAT SUCH SUIT DOES NOT
REALLY AND SUBSTANTIALLY INVOLVE A DISPUTE OR CONTROVERSY PROPERLY
WITHIN THE JURISDICTION OF SAID DISTRICT COURT, OR THAT THE PARTIES TO
SAID SUIT HAVE BEEN IMPROPERLY OR COLLUSIVELY MADE OR JOINED, EITHER AS
PLAINTIFFS OR DEFENDANTS, FOR THE PURPOSE OF CREATING A CASE COGNIZABLE
OR REMOVABLE UNDER THIS CHAPTER, THE SAID DISTRICT COURT SHALL PROCEED
NO FURTHER THEREIN, BUT SHALL DISMISS THE SUIT OR REMAND IT TO THE
COURT FROM WHICH IT WAS REMOVED, AS JUSTICE MAY REQUIRE, AND SHALL MAKE
SUCH ORDER AS TO COSTS AS SHALL BE JUST. 

THIS PROVISION FIRST APPEARED AS SEC. 5  FN9  OF THE ACT OF MARCH 3,
1875(SUPRA), AND SAVE FOR THE ELISION OF A CONCLUDING CLAUSE, AND THE
SUBSTITUTION OF "DISTRICT COURT" FOR "CIRCUIT COURT," IS IDENTICAL WITH
THAT SECTION.  IT WAS INCLUDED IN THE JUDICIARY ACTS OF 1887-1888,
SUPRA, AND HAS BEEN CONTINUOUSLY IN FORCE SINCE 1875.  IT ALTERED THE
PRACTICE BY REQUIRING THE COURT TO DISMISS OR REMAND OF ITS OWN MOTION
IN A PROPER CASE ALTHOUGH WANT OF JURISDICTION WAS NOT RAISED BY
APPROPRIATE MOTION OR BY PLEA OR ANSWER,  FN10  BUT DID NOT CHANGE THE
SUBSTANTIAL BASIS FOR THE COURT'S ACTION.  THE PRINCIPLES GOVERNING
DISMISSAL OF A CAUSE INITIATED IN THE FEDERAL COURT OR THE REMAND OF
ONE BEGUN IN A STATE COURT HAVE REMAINED AS THEY WERE BEFORE THE

THE INTENT OF CONGRESS DRASTICALLY TO RESTRICT FEDERAL JURISDICTION
IN CONTROVERSIES BETWEEN CITIZENS OF DIFFERENT STATES HAS ALWAYS BEEN
RIGOROUSLY ENFORCED BY THE COURTS.  THE RULE GOVERNING DISMISSAL FOR
WANT OF JURISDICTION IN CASES BROUGHT IN THE FEDERAL COURT IS THAT,
UNLESS THE LAW GIVES A DIFFERENT RULE, THE SUM CLAIMED BY THE PLAINTIFF
CONTROLS  FN11  IF THE CLAIM IS APPARENTLY MADE IN GOOD FAITH.  FN12
IT MUST APPEAR TO A LEGAL CERTAINTY THAT THE CLAIM IS REALLY FOR LESS
THAN THE JURISDICTIONAL AMOUNT TO JUSTIFY DISMISSAL.  FN13  THE
INABILITY OF PLAINTIFF TO RECOVER AN AMOUNT ADEQUATE TO GIVE THE COURT
JURISDICTION DOES NOT SHOW HIS BAD FAITH OR OUST THE JURISDICTION. 
FN14  NOR DOES THE FACT THAT THE COMPLAINT DISCLOSES THE EXISTENCE OF A
VALID DEFENSE TO THE CLAIM.  FN15  BUT IF, FROM THE FACE OF THE
PLEADINGS, IT IS APPARENT, TO A LEGAL CERTAINTY, THAT THE PLAINTIFF
CANNOT RECOVER THE AMOUNT CLAIMED, OR IF, FROM THE PROOFS, THE COURT IS
SATISFIED TO A LIKE CERTAINTY THAT THE PLAINTIFF NEVER WAS ENTITLED TO
RECOVER THAT AMOUNT, AND THAT HIS CLAIM WAS THEREFORE COLORABLE FOR THE
PURPOSE OF CONFERRING JURISDICTION, THE SUIT WILL BE DISMISSED.  FN16
EVENTS OCCURRING SUBSEQUENT TO THE INSTITUTION OF SUIT WHICH REDUCE THE
AMOUNT RECOVERABLE BELOW THE STATUTORY LIMIT DO NOT OUST JURISDICTION. 
FN17 

WHAT ALREADY HAS BEEN SAID, AND CIRCUMSTANCES LATER TO BE DISCUSSED,
LEAD TO THE CONCLUSION THAT A DISMISSAL WOULD NOT HAVE BEEN JUSTIFIED
HAD THE SUIT BEEN BROUGHT IN THE FEDERAL COURT.  THE PRINCIPLES WHICH
GOVERN REMAND OF A REMOVED CAUSE, MORE URGENTLY REQUIRE THAT IT SHOULD
NOT HAVE BEEN REMANDED.  IN A CAUSE INSTITUTED IN THE FEDERAL COURT THE
PLAINTIFF CHOOSES HIS FORUM.  HE KNOWS OR SHOULD KNOW WHETHER HIS CLAIM
IS WITHIN THE STATUTORY REQUIREMENT AS TO AMOUNT.  HIS GOOD FAITH IN
CHOOSING THE FEDERAL FORUM IS OPEN TO CHALLENGE NOT ONLY BY RESORT TO
THE FACE OF HIS COMPLAINT, BUT BY THE FACTS DISCLOSED AT TRIAL, AND IF
FROM EITHER SOURCE IT IS CLEAR THAT HIS CLAIM NEVER COULD HAVE AMOUNTED
TO THE SUM NECESSARY TO GIVE JURISDICTION THERE IS NO INJUSTICE IN
DISMISSING THE SUIT.  INDEED, THIS IS THE COURT'S DUTY UNDER THE ACT OF
1875.  IN SUCH ORIGINAL ACTIONS IT MAY ALSO WELL BE THAT PLAINTIFF AND
DEFENDANT HAVE COLLUDED TO CONFER JURISDICTION BY THE METHOD OF THE ONE
CLAIMING A FICTITIOUS AMOUNT AND THE OTHER FAILING TO DENY THE VERACITY
OF THE AVERMENT OF AMOUNT IN CONTROVERSY.  UPON DISCLOSURE OF THAT
STATE OF FACTS THE COURT SHOULD DISMISS. 

A DIFFERENT SITUATION IS PRESENTED IN THE CASE OF A SUIT INSTITUTED
IN A STATE COURT AND THENCE REMOVED.  THERE IS A STRONG PRESUMPTION
THAT THE PLAINTIFF HAS NOT CLAIMED A LARGE AMOUNT IN ORDER TO CONFER
JURISDICTION ON A FEDERAL COURT OR THAT THE PARTIES HAVE COLLUDED TO
THAT END.  FN18 FOR IF SUCH WERE THE PURPOSE SUIT WOULD NOT HAVE BEEN
INSTITUTED IN THE FIRST INSTANCE IN THE STATE BUT IN THE FEDERAL
COURT.  IT IS HIGHLY UNLIKLY THAT THE PARTIES WOULD PURSUE THIS
ROUNDABOUT AND TROUBLESOME METHOD TO GET INTO THE FEDERAL COURT BY
REMOVAL WHEN BY THE SAME DEVICE THE SUIT COULD BE INSTITUTED IN THAT
COURT.  FN19  MOREOVER, THE STATUS OF THE CASE AS DISCLOSED BY THE
PLAINTIFF'S COMPLAINT IS CONTROLLING IN THE CASE OF A REMOVAL, SINCE
THE DEFENDANT MUST FILE HIS PETITION BEFORE THE TIME FOR ANSWER OR
FOREVER LOSE HIS RIGHT TO REMOVE.  FN20  OF COURSE, IF, UPON THE FACE
OF THE COMPLAINT, IT IS OBVIOUS THAT THE SUIT CANNOT INVOLVE THE
NECESSARY AMOUNT, REMOVAL WILL BE FUTILE AND REMAND WILL FOLLOW.  FN21
BUT THE FACT THAT IT APPEARS FROM THE FACE OF THE COMPLAINT THAT THE
DEFENDANT HAS A VALID DEFENSE, IF ASSERTED, TO ALL OR A PORTION OF THE
CLAIM, OR THE CIRCUMSTANCE THAT THE RULINGS OF THE DISTRICT COURT AFTER
REMOVAL REDUCE THE AMOUNT RECOVERABLE BELOW THE JURISDICTIONAL
REQUIREMENT,  FN22  WILL NOT JUSTIFY REMAND.  AND THOUGH, AS HERE, THE
PLAINTIFF AFTER REMOVAL, BY STIPULATION, BY AFFIDAVIT, OR BY AMENDMENT
OF HIS PLEADINGS, REDUCES THE CLAIM BELOW THE REQUISITE AMOUNT, THIS
DOES NOT DEPRIVE THE DISTRICT COURT OF JURISDICTION.  FN23 

THUS EVENTS OCCURRING SUBSEQUENT TO REMOVAL WHICH REDUCE THE AMOUNT
RECOVERABLE, WHETHER BEYOND THE PLAINTIFF'S CONTROL OR THE RESULT OF
HIS VOLITION, DO NOT OUST THE DISTRICT COURT'S JURISDICTION ONCE IT HAS
ATTACHED.  FN24  THIS IS WELL ILLUSTRATED BY KIRBY V. AMERICAN SODA
FOUNTAIN CO., 194 U.S. 141, 146, WHERE IN A SUIT BROUGHT BY KIRBY HE
ALLEGED THAT HE WAS INDUCED BY THE COMPANY'S FALSE REPRESENTATIONS TO
AGREE TO THE EXCHANGE OF HIS APPARATUS FOR ONE MADE BY THE DEFENDANT
AND TO PAY $2025 IN ADDITION.  HE PRAYED THE CANCELLATION OF HIS
OBLIGATION TO PAY THE BALANCE OF $2025, DAMAGES OF $2500, AND GENERAL
RELIEF.  THE CAUSE WAS REMOVED TO THE CIRCUIT COURT.  THE COMPANY
ANSWERED DENYING KIRBY'S CHARGES OF FRAUD, RELIED UPON A WRITTEN
AGREEMENT ALLEGED TO CONTAIN ALL THE TERMS OF THE CONTRACT, ASSERTED
FULL PERFORMANCE ON ITS PART, AND THAT HE HAD PAID BUT $325 ON HIS
OBLIGATION TO PAY $2025.  BY CROSS-COMPLAINT, THE COMPANY DEMANDED
$1700 AND INTEREST FROM KIRBY AND THE ESTABLISHMENT OF A LIEN ON THE
APPARATUS DELIVERED TO HIM.  KIRBY ANSWERED THAT HE HAD VOLUNTARILY
DISMISSED THE ORIGINAL SUIT BROUGHT BY HIM AND THAT THE CROSS-BILL WAS
NOT WITHIN THE JURISDICTION OF THE COURT BECAUSE IT DID NOT CLAIM IN
EXCESS OF $2,000, EXCLUSIVE OF INTEREST AND COSTS.  THE PLEA WAS
OVERRULED AND JUDGMENT RENDERED ON THE CROSS-COMPLAINT.  IN AFFIRMING,
THE COURT REFERRED TO THE AMOUNT DEMANDED IN KIRBY'S ORIGINAL COMPLAINT
AND SAID:  "THE MATTER IN DISPUTE HAVING THUS BEEN MADE TO EXCEED THE
SUM OR VALUE OF TWO THOUSAND DOLLARS, EXCLUSIVE OF INTEREST AND COSTS,
DEFENDANT PRESENTED HIS PETITION AND BOND FOR REMOVAL, AND THE CAUSE
WAS THEREUPON REMOVED.  THE JURISDICTION THUS ACQUIRED BY THE CIRCUIT
COURT WAS NOT DIVESTED BY PLAINTIFF'S SUBSEQUENT ACTION."    FIFTY
YEARS EARLIER IN KANOUSE V. MARTIN, 15 HOW.  198, THE COURT HAD HELD
THAT VOLUNTARY REDUCTION OF THE AMOUNT DEMANDED BELOW THE SUM NECESSARY
TO GIVE THE CIRCUIT COURT JURISDICTION COULD NOT DEFEAT THAT
JURISDICTION ONCE REMOVAL PROCEEDINGS HAD BEEN PERFECTED.  IN RELIANCE
UPON THESE PRECEDENTS MANY CASES, CITED IN NOTE 23, HAVE BEEN DECIDED. 

WE THINK THIS WELL ESTABLISHED RULE IS SUPPORTED BY AMPLE REASON.  IF
THE PLAINTIFF COULD, NO MATTER HOW BONA FIDE HIS ORIGINAL CLAIM IN THE
STATE COURT, REDUCE THE AMOUNT OF HIS DEMAND TO DEFEAT FEDERAL
JURISDICTION THE DEFENDANT'S SUPPOSED STATUTORY RIGHT OF REMOVAL WOULD
BE SUBJECT TO THE PLAINTIFF'S CAPRICE.  THE CLAIM, WHETHER WELL OR ILL
FOUNDED IN FACT, FIXES THE RIGHT OF THE DEFENDANT TO REMOVE, AND THE
PLAINTIFF OUGHT NOT TO BE ABLE TO DEFEAT THAT RIGHT AND BRING THE CAUSE
BACK TO THE STATE COURT AT HIS ELECTION.  IF HE DOES NOT DESIRE TO TRY
HIS CASE IN THE FEDERAL COURT HE MAY RESORT TO THE EXPEDIENT OF SUING
FOR LESS THAN THE JURISDICTIONAL AMOUNT, AND THOUGH HE WOULD BE JUSTLY
ENTITLED TO MORE, THE DEFENDANT CANNOT REMOVE.  FN25 

THIS VIEW IS FURTHER SUPPORTED BY THE AUTHORITIES AS TO CAUSES IN
WHICH JURISDICTION DEPENDS ON DIVERSITY OF CITIZENSHIP.  IT UNIFORMLY
HAS BEEN HELD THAT IN A SUIT PROPERLY BEGUN IN THE FEDERAL COURT THE
CHANGE OF CITIZENSHIP OF A PARTY DOES NOT OUST THE JURISDICTION.  FN26
THE SAME RULE GOVERNS A SUIT ORIGINALLY BROUGHT IN A STATE COURT AND
REMOVED TO A FEDERAL COURT.  FN27 

THE DECISIONS AS TO REMAND OF A CAUSE REMOVED BECAUSE IT INVOLVES A
SEPARABLE CONTROVERSY ARE NOT INCONSISTENT WITH THOSE CONCERNING REMAND
FOR LACK OF JURISDICTIONAL AMOUNT.  IN THE CASE OF A SEPARABLE
CONTROVERSY, IF, AFTER REMOVAL, THE PLAINTIFF DISCONTINUES OR DISMISSES
AS TO THE DEFENDANT WHO REMOVED, SO THAT THERE NO LONGER EXISTS ANY
SEPARABLE CONTROVERSY, THE CAUSE MUST BE REMANDED N28.  IF A CAUSE BE
REMOVED ON THIS GROUND THE WHOLE CASE, INCLUDING THE CONTROVERSY
BETWEEN CITIZENS OF THE SAME STATE, IS TAKEN OVER BY THE FEDERAL COURT
ONLY BECAUSE ONE OR MORE OF THE DEFENDANTS IS ENTITLED TO INVOKE ITS
JURISDICTION.  THE BASIS OF FEDERAL JURISDICTION FAILING, IT IS PROPER
THAT THE REMAINING PARTIES, WHO WERE INVOLUNTARILY TAKEN INTO THE
FEDERAL COURT, SHOULD, UPON THE CESSATION OF THE SEPARABLE CONTROVERSY
WHICH WAS THE CAUSE OF THEIR TRANSMISSION TO ANOTHER TRIBUNAL, HAVE
THEIR CASE RETURNED TO THE STATE COURT. 

THE PRESENT CASE WELL ILLUSTRATES THE PROPRIETY OF THE RULE THAT
SUBSEQUENT REDUCTION OF THE AMOUNT CLAIMED CANNOT OUST THE DISTRICT
COURT'S JURISDICTION.  SUIT WAS INSTITUTED IN THE STATE COURT JUNE 5,
1934.  THE LUMP SUM CLAIMED WAS LARGELY IN EXCESS OF $3,000, EXCLUSIVE
OF INTEREST AND COSTS.  THE ITEMS WHICH WENT TO MAKE UP THE
RESPONDENT'S DEMAND FOR INDEMNITY WERE NUMEROUS AND EACH, IN TURN, WAS
ITSELF THE TOTAL OF SEVERAL ITEMS OF EXPENDITURE OR LIABILITY.  THERE
IS NOTHING TO INDICATE THAT ALL OF THE SUMS FOR WHICH REIMBURSEMENT WAS
CLAIMED HAD ACTUALLY BEEN EXPENDED PRIOR TO THE BEGINNING OF SUIT OR
THAT THE SUMS THEREAFTER TO BE EXPENDED HAD BEEN ASCERTAINED.  NOT
UNTIL THE SECOND AMENDED COMPLAINT WAS FILED IN THE UNITED STATES
COURT, IN NOVEMBER 1934, DID THE RESPONDENT FURNISH A STATEMENT OF THE
PARTICULARS OF ITS CLAIM.  THAT STATEMENT IS NOT INCONSISTENT WITH THE
MAKING OF A CLAIM IN GOOD FAITH FOR OVER $3,000 WHEN THE SUIT WAS
INSTITUTED.  NOR IS THERE EVIDENCE THAT THE PETITIONER WHEN IT REMOVED
THE CAUSE KNEW, OR HAD REASON TO BELIEVE, THAT THE RESPONDENT'S CLAIM,
WHETHER WELL OR ILL FOUNDED IN LAW OR FACT, INVOLVED LESS THAN $3,000. 
ON THE FACE OF THE PLEADINGS PETITIONER WAS ENTITLED TO INVOKE THE
JURISDICTION OF THE FEDERAL COURT, AND A REDUCTION OF THE AMOUNT
CLAIMED, AFTER REMOVAL, DID NOT TAKE AWAY THAT PRIVILEGE. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT
COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS
OPINION.  REVERSED. 

FN1  90 F.(2D) 229. 

FN2  ACT OF MARCH 3, 1911, C. 231, SEC. 24, AS AMENDED, 36 STAT.
1091, U.S.C. TIT. 28, SEC. 41. 

FN3  ACT OF SEPT. 24, 1789, SEC. 12, 1 STAT. 73, 79. 

FN4  C. 288, 14 STAT. 306. 

FN5  ACT OF MARCH 3, 1875, 18 STAT. 470. 

FN6  ACT OF MARCH 3, 1887, SEC. 1, 24 STAT. 552; ACT OF AUG. 13,
1888, SEC. 1, 25 STAT. 433. 

FN7  ACT OF MARCH 3, 1911, C. 231, SECS. 24 AND 28, 36 STAT. 1087,
1091, 1094. 

FN8  ACT OF MARCH 3, 1911, C. 231, SEC. 37, 36 STAT. 1098, U.S.C.
TIT. 28, SEC. 80. 

FN9  18 STAT. 472. 

FN10  PRIOR TO 1875 THE COURTS DID NOT ACT OF THEIR OWN MOTION BUT
UPON A MOTION TO DISMISS OR A PLEA IN ABATEMENT.  SMITH V. KERNOCHEN, 7
HOW.  198; MCNUTT V. GENERAL MOTORS ACCEPTANCE CORP., 298 U.S. 178,
183.  SINCE THEN IT HAS BEEN THEIR DUTY NOT ONLY TO ACT UPON A MOTION
TO DISMISS, (STEIGLEDER V. MCQUESTEN, 198 U.S. 141) OR, IF THE STATE
PRACTICE PERMITS, UPON A DENIAL OF JURISDICTION IN THE ANSWER, (GILBERT
V. DAVID, 235 U.S. 561; NORTH PACIFIC S.S. CO. V. SOLEY, 257 U.S. 216)
BUT TO ACT SUA SPONTE (MCNUTT V. GENERAL MOTORS ACCEPTANCE CORP.,
SUPRA, 184) UPON ANY DISCLOSURE, WHETHER IN THE PLEADINGS OR THE
PROOFS, WHICH SATISFIES THE COURT, IN THE EXERCISE OF A SOUND JUDICIAL
DISCRETION, THAT THE PLAINTIFF DID NOT IN FACT HAVE A CLAIM FOR THE
JURISDICTIONAL AMOUNT OR VALUE, AND KNEW, OR REASONABLY OUGHT TO HAVE
KNOWN, THAT FACT.  WILLIAMS V. NOTTAWA, 104 U.S. 209, 211; MCNUTT V.
GENERAL MOTORS ACCEPTANCE CORP., SUPRA, 184.  IT IS PLAINTIFF'S BURDEN
BOTH TO ALLEGE WITH SUFFICIENT PARTICULARITY THE FACTS CREATING
JURISDICTION, IN VIEW OF THE NATURE OF THE RIGHT ASSERTED, AND, IF
APPROPRIATELY CHALLENGED, OR IF INQUIRY BE MADE BY THE COURT OF ITS OWN
MOTION, TO SUPPORT THE ALLEGATION.  MCNUTT V. GENERAL MOTORS ACCEPTANCE
CORP., SUPRA, PP. 182-189; KVOS V. ASSOCIATED PRESS, 299 U.S. 269. 
EVEN AN APPELLATE COURT MUST NOTICE THE ABSENCE OF THE ELEMENTS
REQUISITE TO ORIGINAL JURISDICTION OR TO A REMOVAL.  WILLIAMS V.
NOTTAWA, SUPRA; ROBINSON V. ANDERSON, 121 U.S. 522; MCNUTT V. GENERAL
MOTORS ACCEPTANCE CORP., SUPRA; AMERICAN BRIDGE CO. V. HUNT, 130 FED.
302; INTERNATIONAL & G.N.R. CO. V. HOYLE, 149 FED. 180. 

FN11  WILSON V. DANIEL, 3 DALL.  401, 407, 408; BARRY V. EDMUNDS, 116
U.S. 550; SHERMAN V. CLARK, 3 MCLEAN 91, FED. CAS. 12763; STUCKERT V.
ALEXANDER, 4 F.SUPP.  172. 

FN12  PEELER V. LATHROP, 48 FED. 780; UNG LUNG CHUNG V. HOLMES, 98
FED. 323; WASHINGTON COUNTY V. WILLIAMS, 111 FED. 801; GREENE COUNTY
BANK V. TEASDALE COMM'N CO., 112 FED. 801; AMERICAN SHEET & TIN PLATE
CO. V. WINZELER, 227 FED. 321; OWEN M. BRUNER CO. V. O.R. MANEFEE
LUMBER CO., 292 FED. 985; WALKER GRAIN CO. V. SOUTHWESTERN TEL. & TEL.
CO., 10 F.(2D) 272. 

FN13  BARRY V. EDMUNDS, SUPRA; WETMORE V. RYMER, 169 U.S. 115, 122;
PUT-IN-BAY WATERWORKS CO. V. RYAN, 181 U.S. 409, 432-433; HAMPTON STAVE
CO. V. GARDNER, 154 FED. 805. 

FN14  SMITHERS V. SMITH, 204 U.S. 632; HOLDEN V. UTAH & M.M. CO., 82
FED. 209; MAFFET V. QUINE, 95 FED. 199; KUNKEL V. BROWN, 99 FED. 593;
UNG LUNG CHUNG V. HOLMES, SUPRA; WASHINGTON COUNTY V. WILLIAMS, SUPRA;
DENVER CITY TRAMWAY CO. V. NORTON, 141 FED.  599; HAMPTON STAVE CO. V.
GARDNER, SUPRA; O.J. LEWIS MERCANTILE CO. V. KLEPNER, 176 FED. 343; ST.
TAMMANY BANK & T. CO. V. WINFIELD, 263 FED. 371; RAGSDALE V. RUDICH,
293 FED. 182; WALKER GRAIN CO. V. SOUTHWESTERN TEL. & TEL. CO., 10
F.(2D) 272; KIMEL V. MISSOURI STATE LIFE INS. CO., 71 F.(2D) 921;
SIMECEK V. UNITED STATES NATIONAL BANK, 91 F.(2D) 214. 

FN15  INTERSTATE BLDG. & L. ASSN. V. EDGEFIELD HOTEL CO., 109 FED.
692; ARMSTRONG V. WALTERS, 219 FED. 320; MULLINS LUMBER CO. V.
WILLIAMSON & BROWN LAND CO., 246 FED. 232. 

FN16  WILLIAMS V. NOTTAWA, SUPRA; BARRY V. EDMUNDS, SUPRA; VANCE V.
W.A. VANDERCOOK CO., 170 U.S. 468; LION BONDING & S. CO. V. KARATZ, 262
U.S. 77; FIRST NATIONAL BANK V. LOUISIANA HIGHWAY COMM'N, 264 U.S. 308;
SIMON V. HOUSE, 46 FED. 317; HORST V. MERKLEY, 59 FED. 502; CABOT V.
MCMASTER, 61 FED. 129; BANK OF ARAPAHOE V. DAVID BRADLEY & CO., 72 FED.
867; ARMSTRONG V. WALTERS, SUPRA; MAUREL V. SMITH, 220 FED. 195; LE ROY
V. HARTWICK, 229 FED. 857; SCLARENCO V. CHICAGO BONDING CO., 236 FED.
592; OPERATORS PIANO CO. V. FIRST WISCONSIN TRUST CO., 283 FED. 904;
WILDERMAN V. ROTH, 17 F.(2D) 486; CHICK V. NEW ENGLAND TEL. & TEL. CO.,
36 F.(2D) 832; NIXON V. TOWN TAXI, INC., 39 F.(2D) 618; COHN V. CITIES
SERVICE CO., 45 F.(2D) 687; MILLER-CRENSHAW CO. V. COLORADO MILL CO.,
84 F.(2D) 930. 

FN17  MUTUAL LIFE INS. CO. V. ROSE, 294 FED. 122; HOOD V. BELL, 84
F.(2D) 136. 

FN18  IN SMITH V. GREENHOW, 109 U.S. 669, 671, A CASE OF TRESPASS FOR
ENTERING PLAINTIFF'S PREMISES AND CARRYING AWAY GOODS OF THE VALUE OF
$100, INTERFERING WITH PLAINTIFF'S BUSINESS, ANNOYING AND DISTURBING
HIM, &C., THE DAMAGES WERE LAID AT $6,000.  THOUGH THERE WAS NOT
DIVERSITY OF CITIZENSHIP, AS THE PLEADINGS RAISED A FEDERAL QUESTION,
THE CAUSE WAS REMOVED.  IT WAS REMANDED AS THE CIRCUIT COURT THOUGHT
THERE WAS NO FEDERAL QUESTION INVOLVED.  THE DECISION WAS REVERSED. 
SPEAKING OF THE FACTS DISCLOSED THE COURT SAID:  "THERE IS A GROUND FOR
REMANDING THE CAUSE SUGGESTED BY THE RECORD, BUT NOT SUFFICIENTLY
APPARENT TO JUSTIFY US IN RESORTING TO IT TO SUPPORT THE ACTION OF THE
CIRCUIT COURT.  THE VALUE OF THE PROPERTY TAKEN IS STATED IN THE
DECLARATION TO BE BUT $100, ALTHOUGH THE DAMAGES FOR THE ALLEGED
TRESPASS ARE LAID AT $6,000.... WE CANNOT, OF COURSE, ASSUME AS A
MATTER OF LAW, THAT THE AMOUNT LAID, OR A LESS AMOUNT, GREATER THAN
$500, IS NOT RECOVERABLE UPON THE CASE STATED IN THE DECLARATION, AND
CANNOT THEREFORE JUSTIFY THE ORDER REMANDING THE CAUSE, ON THE GROUND
THAT THE MATTER IN DISPUTE DOES NOT EXCEED THE SUM OR VALUE OF $500. 
BUT IF THE CIRCUIT COURT HAD FOUND, AS MATTER OF FACT, THAT THE AMOUNT
OF DAMAGES STATED IN THE DECLARATION WAS COLORABLE, AND HAD BEEN LAID
BEYOND THE AMOUNT OF A REASONABLE EXPECTATION OF RECOVERY, FOR THE
PURPOSE OF CREATING A CASE REMOVABLE UNDER THE ACT OF CONGRESS, SO
THAT, IN THE WORDS OF THE 5TH SECTION OF THE ACT OF 1875, IT APPEARED
THAT THE SUIT 'DID NOT REALLY AND SUBSTANTIALLY INVOLVE A DISPUTE OR
CONTROVERSY PROPERLY WITHIN THE JURISDICTION OF SAID CIRCUIT COURT,'
THE ORDER REMANDING IT TO THE STATE COURT COULD HAVE BEEN SUSTAINED." 
THIS APPEARS TO BE THE ONLY REPORTED CASE OF A REMOVAL BY THE PLAINTIFF
AS AUTHORIZED BY THE ACT OF 1875, AND IS DISTINGUISHABLE ON THAT
GROUND, AS RESPECTS THE POSSIBILITY THAT PLAINTIFF'S CLAIM MAY HAVE
BEEN COLORABLE FOR THE PURPOSE OF REMOVING THE CASE. 

FN19  HAYWARD V. NORDBERG MFG. CO., 85 FED. 4, 9.  (PER TAFT, LURTON
AND CLARK, JJ.) 

FN20  GORDON V. LONGEST, 16 PET. 97; KANOUSE V. MARTIN, 15 HOW.  198;
CHESBROUGH V. NORTHERN TRUST CO., 252 U.S. 83, AFFIRMING CHESBROUGH V.
WOODWORTH, 251 FED. 881; MUNS V. DENEMOURS, 2 WASH. C.C. 463, FED. CAS.
9931; RIGGS V. CLARK, 71 FED. 560; HAYWARD V. NORDBERG MFG. CO., SUPRA;
JOHNSON V. COMPUTING SCALE CO., 139 FED. 339. 

FN21  NORTH AMERICAN T. & T. CO. V. MORRISON, 178 U.S. 262. 

FN22  LEVINSKI V. MIDDLESEX BANKING CO., 92 FED. 449; TENNENT
STRIBLING SHOE CO. V. ROPER, 94 FED. 739; MANNHEIMER V. NEDERLANDSCHE,
6 F.SUPP.  564.  CONTRA: JONES V. WESTERN UNION TEL. CO., 233 FED.
301. 

FN23  KANOUSE V. MARTIN, SUPRA; KIRBY V. AMERICAN SODA FOUNTAIN CO.,
194 U.S. 141; WRIGHT V. WELLS, PET. C.C. 220, FED. CAS. 18,101; ROBERTS
V. NELSON, 8 BLATCHF.  74, FED. CAS. 11,907; ZINKEISEN V. HUFSCHMIDT, 1
CENT. L.J. 144, FED. CAS. 18,214; WAITE V. PHOENIX INS. CO., 62 FED.
769; RIGGS V. CLARK, SUPRA; HAYWARD V. NORDBERG MFG. CO., SUPRA;
JOHNSON V. COMPUTING SCALE CO., SUPRA; COFFIN V. PHILADELPHIA, W. &
B.R. CO., 118 FED. 688; DONOVAN V. DIXIELAND AMUSEMENT CO., 152 FED.
661; BERNHEIM V. LOUISVILLE PROPERTY CO., 221 FED. 273; JELLISON V.
KRELL PIANO CO., 246 FED. 509; TWIN HILLS GASOLINE CO. V. BRADFORD OIL
CORP., 264 FED. 440; KANE V. RESERVE OIL CORP., 52 F.(2D) 972;
TRAVELERS' PROTECTIVE ASSN. V. SMITH, 71 F.(2D) 511; BEDDINGS V. GREAT
EASTERN STAGES, INC., 6 F.SUPP.  529.  CONTRA:  HUGHES & CO. V. PEPER
TOBACCO WAREHOUSE CO., 126 FED. 687.  IN TWO TORT CASES WHERE LARGE
DAMAGES WERE CLAIMED, BUT IT APPEARED AT TRIAL THAT PLAINTIFF'S
INJURIES AND LOSSES WERE SO SLIGHT THAT A VERDICT FOR MORE THAN A
FRACTION OF THE JURISDICTIONAL AMOUNT COULD NOT BE SUSTAINED THE COURTS
REMANDED.  THOUGH NOT PLACED UPON THAT GROUND, THEIR ACTION MAY HAVE
BEEN JUSTIFIED BY THE CONVICTION THAT THE DEFENDANT WHEN IT REMOVED
KNEW THAT THE AMOUNT INVOLVED WAS TOO LITTLE TO GIVE JURISDICTION:
TURMINE V. WEST JERSEY & S.R. CO., 44 F.(2D) 614; AMERICAN STORES CO.
V. GERLACH, 55 F.(2D) 658. 

FN24  THE SAME PRINCIPLE APPLIES IN CASES WHERE A FIXED AMOUNT IS
REQUISITE TO JURISDICTION ON APPEAL.  LEE V. WATSON, 1 WALL.  337;
COOKE V. UNITED STATES, 2 WALL.  218. 

FN25  WOODS V. MASSACHUSETTS PROTECTIVE ASSN., 34 F.(2D) 501.  AND AN
AMENDMENT IN THE STATE COURT REDUCING THE CLAIM BELOW THE
JURISDICTIONAL AMOUNT BEFORE REMOVAL IS PERFECTED IS EFFECTIVE TO
INVALIDATE REMOVAL AND REQUIRES A REMAND OF THE CAUSE:  MAINE V.
GILMAN, 11 FED. 214; WAITE V. PHOENIX INS. CO., SUPRA; HARLEY V.
FIREMEN'S FUND INS. CO., 245 FED. 471. 

FN26  MORGAN'S HEIRS V. MORGAN, 2 WHEAT.  290, 297; MULLAN V.
TORRANCE, 9 WHEAT.  537; DUNN V. CLARKE, 8 PET. 1; CLARKE V. MATHEWSON,
12 PET. 164; TUG RIVER COAL & SALT CO. V. BRIGEL, 86 FED. 818,
AFFIRMING 73 FED. 13. 

FN27  HARACOVIC V. STANDARD OIL CO., 105 FED. 785; LEBENSBERGER V.
SCOFIELD, 139 FED. 380.  CHANGE OF PARTIES BY SUBSTITUTION OR BY
INTERVENTION DOES NOT OUST THE JURISDICTION:  PHELPS V. OAKS, 117 U.S.
236; HARDENBERGH V. RAY, 151 U.S. 112; WICHITA R. & LIGHT CO. V. PUBLIC
UTILITIES COMM'N, 260 U.S. 48.    FN28  TEXAS TRANSPORTATION CO. V.
SEELIGSON, 122 U.S. 519; TORRENCE V. SHEDD, 144 U.S. 527; IOWA
HOMESTEAD CO. V. DES MOINES N. & R. CO., 8 FED. 97; BANE V. KEEFER, 66
FED. 610; YOUTSEY V. HOFFMAN, 108 FED. 699; CASSIDY V. ATLANTA & C.A.L.
RY. CO., 109 FED. 673; SKLARSKY V. GREAT ATLANTIC & P. TEA.  CO., 47
F.(2D) 662. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :








HELVERING V. BULLARD, 303 U.S. 297 


NO. 349.  ARGUED FEBRUARY 1, 1938.  - DECIDED FEBRUARY 28, 1938.  - 90
F.2D 144, REVERSED. 


1.  A DECREE IN ILLINOIS, ENTERED BY CONSENT IN COMPROMISE OF
LITIGATION, OPERATED TO ABROGATE A TRUST AS VIOLATIVE OF THE RULE
AGAINST PERPETUITIES AND TO ESTABLISH THE TRUSTOR'S ABSOLUTE OWNERSHIP
OF THE ASSETS.  HELD, THAT A NEW DEED OF TRUST MADE BY THE TRUSTOR
PURSUANT TO THE COMPROMISE AND CONVEYING TO SOME OF THE PARTIES THE
SAME BENEFICIAL INTERESTS THAT THEY WOULD HAVE RECEIVED UNDER THE
ORIGINAL CONVEYANCE IF VALID, CAN NOT BE RELATED BACK TO THE CREATION
OF THE ORIGINAL TRUST, BUT MUST STAND INDEPENDENTLY, FOR THE PURPOSE OF
DETERMINING THE APPLICATION OF A FEDERAL TAX PROVISION ENACTED BETWEEN
THE DATES OF THE TWO CONVEYANCES.  P. 300. 

2.  SEC. 302(C) OF THE REV. ACT OF 1926, AS AMENDED BY JOINT
RESOLUTION OF MARCH 3, 1931, REQUIRES THE INCLUSION IN A DECEDENT'S
GROSS TAXABLE ESTATE OF PROPERTY OF WHICH THE DECEDENT HAS AT ANY TIME
MADE A TRANSFER, BY TRUST OR OTHERWISE, UNDER WHICH THE TRANSFEROR
RETAINED FOR LIFE THE POSSESSION OR ENJOYMENT OF THE INCOME FROM THE
PROPERTY, EXCEPT IN CASE OF A BONA FIDE SALE FOR AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH.  HELD: 

(1)  THAT THE EXCEPTION DID NOT APPLY WHERE THE TRANSFEREE GAVE UP
NOTHING BUT AN INTEREST IN AN EARLIER TRANSFER, WHICH WAS ADJUDGED VOID
BY A CONSENT DECREE ENTERED IN PURSUANCE OF A COMPROMISE.  P. 300. 

(2)  THE JOINT RESOLUTION IS VALID AS TO FUTURE NON-TESTAMENTARY
TRANSFERS IN THE NATURE OF GIFTS, SINCE: 

(A)  CONGRESS MAY LAY AN EXCISE ON GIFTS AT DIFFERENT RATES FOR THOSE
WHICH ARE AND THOSE WHICH ARE NOT SUBJECT TO RESERVATION OF A LIFE
ESTATE; CALLING IT AN ESTATE TAX DOES NOT AFFECT ITS VALIDITY.  P.
301. 

(B)  CONGRESS MAY TREAT SUCH TRANSFERS AS TESTAMENTARY TO PREVENT
AVOIDANCE OF ESTATE TAXES.  P. 301. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. BULLARD, EXECUTOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 302 U.S. 671, TO REVIEW THE REVERSAL BY THE COURT BELOW
OF A DECISION OF THE BOARD OF TAX APPEALS, 34 B.T.A. 243, UPHOLDING AN
ESTATE TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER CHALLENGES A DECISION HOLDING UNCONSTITUTIONAL THE
PROVISION OF SEC. 302(C) OF THE REVENUE ACT OF 1926,  FN1  AS AMENDED
BY JOINT RESOLUTION OF CONGRESS OF MARCH 3, 1931,  FN2 WHICH REQUIRES
THE INCLUSION IN A DECEDENT'S GROSS TAXABLE ESTATE OF PROPERTY
TRANSFERRED BY IRREVOCABLE DEED WITH RESERVATION OF A LIFE ESTATE.  ON
ACCOUNT OF ALLEGED CONFLICT WITH OUR DECISIONS AND OF THE IMPORTANT
CONSTITUTIONAL QUESTION PRESENTED WE GRANTED THE WRIT OF CERTIORARI. 

CLARA R. SMITH, A RESIDENT OF ILLINOIS, DIED IN 1933.  IN 1927 SHE
TRANSFERRED SECURITIES, BY IRREVOCABLE DEED, TO HER SON EDWARD, IN
TRUST TO PAY THE INCOME TO HER FOR LIFE AND, UPON HER DEATH, TO DIVIDE
THE CORPUS INTO THREE EQUAL PARTS, THE INCOME FROM A PART TO BE PAID TO
EACH OF HER THREE CHILDREN, LORA, BESSIE, AND EDWARD, DURING THEIR
LIVES, WITH REMAINDERS OF THE DAUGHTERS' SHARES TO THEIR RESPECTIVE
CHILDREN; UPON EDWARD'S DEATH LEAVING NO ISSUE THE INCOME FROM HIS
SHARE TO BE PAID TO HIS WIDOW FOR LIFE AND, UPON HER DEATH, THE
REMAINDER TO BE ADDED, IN EQUAL SHARES, TO THE DAUGHTERS' TRUST FUNDS. 
EDWARD DIED IN 1928 LEAVING A WIDOW BUT NO ISSUE. 

IN 1931 DISSATISFACTION WITH THE ADMINISTRATION OF THE TRUST IMPELLED
THE DECEDENT TO SEEK ITS ABROGATION.  EXAMINATION OF THE INSTRUMENT
DISCLOSED VIOLATION OF THE RULE AGAINST PERPETUITIES.  A BILL WAS
ACCORDINGLY FILED IN AN ILLINOIS STATE COURT TO HAVE THE TRUST DECLARED
VOID.  THE SON'S WIDOW ANSWERED DENYING INVALIDITY.  A GUARDIAN AD
LITEM REPRESENTING THE INTERESTS OF INFANT BENEFICIARIES IN REMAINDER
ALSO OPPOSED THE PRAYER OF THE BILL.  SUBSEQUENTLY, TO AVOID FAMILY
DISCORD AND AMICABLY TO SETTLE THE PENDING LITIGATION, A COMPROMISE
AGREEMENT WAS MADE BY THE DECEDENT AND ALL THE ADULT BENEFICIARIES,
CONSENTING TO THE ENTRY OF A DECREE ON CONDITION THAT THE DECEDENT
WOULD DECLARE A NEW TRUST OF APPROXIMATELY ONE-THIRD OF THE SECURITIES
IN THE EXISTING TRUST WHEREBY EDWARD'S WIDOW SHOULD ENJOY A LIFE
INTEREST IDENTICAL TO THAT GIVEN HER BY THE 1927 TRUST AND, UPON HER
DEATH, THE REMAINDER SHOULD BE EQUALLY DIVIDED BETWEEN THE DECEDENT'S
DAUGHTERS.  THE AGREEMENT FURTHER REQUIRED THE MAKING OF TESTAMENTARY
PROVISION FOR THE DECEDENT'S DAUGHTERS AND GRANDCHILDREN, AND CERTAIN
OUTRIGHT GIFTS TO THE LATTER.  IN PURSUANCE OF THE AGREEMENT, THE
DECEDENT, ON FEBRUARY 17, 1932, EXECUTED A NEW IRREVOCABLE DEED OF
TRUST CONVEYING APPROXIMATELY ONE-THIRD OF THE CORPUS OF THE FORMER
TRUST AND RESERVING TO HERSELF A LIFE INTEREST IN THE INCOME, AND
EXECUTED A NEW WILL.  A CONSENT DECREE WAS THEN ENTERED IN THE EQUITY
SUIT, THE GUARDIAN AD LITEM REPRESENTING TO THE COURT THAT THE
SETTLEMENT WOULD BE ADVANTAGEOUS TO THE MINOR BENEFICIARIES. 

THE COMMISSIONER'S INCLUSION OF THE CORPUS OF THE TRUST OF FEBRUARY
17, 1932, IN THE GROSS ESTATE WAS SUSTAINED BY THE BOARD OF TAX
APPEALS.  FN3  THE CIRCUIT COURT OF APPEALS REVERSED THE BOARD'S
DECISION.  FN4  WE ARE OF OPINION THAT THE ACTION OF THE COMMISSIONER
AND THE BOARD SHOULD HAVE BEEN AFFIRMED. 

FIRST.  BOTH THE BOARD AND THE COURT HELD THAT THE DECREE OF THE
STATE COURT, NOTWITHSTANDING ITS ENTRY PURSUANT TO STIPULATION,
ADJUDICATED THE RIGHTS OF THE PARTIES, ABROGATED THE TRUST OF 1927, AND
ESTABLISHED THE DECEDENT'S ABSOLUTE OWNERSHIP OF THE ASSETS.  THIS
CONCLUSION IS FULLY SUPPORTED BY DECISIONS OF THE SUPREME COURT OF
ILLINOIS AND WE ACCEPT IT.  IT FOLLOWS THAT THE RESPONDENT'S CONTENTION
THAT THE TRANSFER OF 1932 HAS NO INDEPENDENT EXISTENCE AND THAT, IN
LEGAL EFFECT, THE TRUST FOR THE SON'S WIDOW STEMS FROM THE DEED OF
1927, MUST BE OVERRULED. 

SECOND.  THE TRUST OF 1932 WAS CREATED AFTER THE ADOPTION OF THE
JOINT RESOLUTION OF MARCH 3, 1931, WHICH REQUIRED INCLUSION IN THE
GROSS ESTATE OF THE VALUE AT THE DATE OF DEATH OF ALL PROPERTY TO THE
EXTENT OF ANY INTEREST THEREIN OF WHICH A DECEDENT HAS AT ANY TIME MADE
A TRANSFER BY TRUST OR OTHERWISE UNDER WHICH THE TRANSFEROR RETAINED
FOR LIFE THE POSSESSION OR ENJOYMENT OF THE INCOME FROM THE PROPERTY,
EXCEPT IN CASE OF A BONA FIDE SALE FOR AN ADEQUATE AND FULL
CONSIDERATION IN MONEY OR MONEY'S WORTH.  IT IS URGED THAT THE
SETTLEMENT OF THE DISPUTE AS TO THE INVALIDITY OF THE TRUST DEED OF
1927, CONDITIONED, AS IT WAS, UPON THE MAKING OF THE NEW TRUST,
CONSTITUTES SUCH A BONA FIDE SALE, FOR ADEQUATE CONSIDERATION, AS TO
BRING THE TRUST OF 1932 WITHIN THE EXCEPTION.  THE ARGUMENT IS THAT THE
DECREE SETTING ASIDE THE 1927 TRUST MERELY GAVE JUDICIAL SANCTION TO
THE COMPROMISE AGREEMENT AND THAT THE CONTRACT WAS FOR AN ADEQUATE AND
VALUABLE CONSIDERATION AND WOULD, THEREFORE, HAVE BEEN ENFORCED BY A
COURT OF EQUITY AT THE INSTANCE OF ANY OF THE PARTIES TO IT. 

WHILE RECOGNIZING THAT A DECREE THUS BEGOTTEN HAS THE SAME FORCE AND
EFFECT AS A DECREE IN INVITUM, THE RESPONDENT SEEKS TO GO BEHIND THE
DECREE AND SPELL OUT A SALE BY EDWARD'S WIDOW OF HER INTEREST UNDER THE
1927 TRUST FOR THE INTEREST CONFERRED UPON HER BY THE 1932 TRUST.  THE
COURT BELOW HAS HELD THE POSITION UNTENABLE AND WE AGREE.  THE DECREE
DECLARED THE 1927 TRUST VOID AND REVESTED THE TRUST ASSETS IN THE
DECEDENT.  IF THAT TRUST WAS, AS THE ILLINOIS COURT DECREED, VOID AND
INEFFECTIVE BECAUSE IT VIOLATED THE RULE AGAINST PERPETUITIES THE SON'S
WIDOW TOOK NO INTEREST UNDER IT AND GAVE NOTHING TO PROCURE THE 1932
TRANSFER. 

THIRD.  THE COMMISSIONER RELIES NOT ONLY UPON THE JOINT RESOLUTION OF
MARCH 3, 1931, BUT UPON SEC. 803(A) OF THE REVENUE ACT OF 1932.  FN5
WE NEED NOT CONSIDER THE LATTER SINCE THE JOINT RESOLUTION, IF LEGALLY
ENFORCIBLE, IN EXPRESS TERMS AUTHORIZED HIS INCLUSION OF THE TRUST FUND
IN THE DECEDENT'S GROSS ESTATE.  AS THE RESOLUTION WAS ADOPTED NEARLY A
YEAR PRIOR TO THE CREATION OF THE 1932 TRUST NO CLAIM IS OR CAN BE MADE
THAT, AS TO THAT TRANSACTION, IT IS RETROACTIVE.  THE CONTENTION IS
THAT THE TRANSFER WAS INTER VIVOS, WAS PRESENTLY EFFECTIVE, WAS
IRREVOCABLE, WAS NOT MADE IN CONTEMPLATION OF, OR EFFECTIVE AT, DEATH,
AND THAT CONGRESS WAS, THEREFORE, WITHOUT POWER TO MAKE IT THE SUBJECT
OF AN ESTATE OR INHERITANCE TAX; THAT, WHILE THE TRANSFER MIGHT, BY
APPROPRIATE LEGISLATION, HAVE BEEN TAXED AS A GIFT, TO TAX IT AS IN THE
NATURE OF A TESTAMENTARY DISPOSITION IS A DENIAL OF DUE PROCESS.  THE
CONTENTION IS UNSOUND FOR SEVERAL REASONS.  SINCE CONGRESS MAY LAY AN
EXCISE UPON GIFTS IT IS OF NO SIGNIFICANCE THAT THE EXACTION IS
DENOMINATED AN ESTATE TAX OR IS FOUND IN A STATUTE PURPORTING TO LEVY
AN ESTATE TAX.  MOREOVER, CONGRESS HAVING THE RIGHT TO CLASSIFY GIFTS
OF DIFFERENT SORTS MIGHT IMPOSE AN EXCISE AT ONE RATE UPON A GIFT
WITHOUT RESERVATION OF A LIFE ESTATE AND AT ANOTHER RATE UPON A GIFT
WITH SUCH RESERVATION.  SUCH A CLASSIFICATION WOULD NOT BE ARBITRARY OR
UNREASONABLE.  A FURTHER VINDICATION OF THE EXACTION IS THE AUTHORITY
OF CONGRESS TO TREAT AS TESTAMENTARY, TRANSFERS WITH RESERVATION OF A
POWER OR AN INTEREST IN THE DONOR.  THE LEGISLATIVE HISTORY OF THE
JOINT RESOLUTION, TO WHICH REFERENCE IS MADE IN HASSETT V. WELCH, POST,
P. 303, DEMONSTRATES THAT THE PURPOSE OF THE LEGISLATION WAS TO PREVENT
AVOIDANCE OF ESTATE TAXES.  AS HAS BEEN SAID BY THE COURT OF APPEALS OF
NEW YORK:  FN6 "IT IS TRUE THAT AN INGENIOUS MIND MAY DEVISE OTHER
MEANS OF AVOIDING AN INHERITANCE TAX, BUT THE ONE COMMONLY USED IS A
TRANSFER WITH RESERVATION OF A LIFE ESTATE." 

WE HAVE RECENTLY SUSTAINED THE PROSPECTIVE OPERATION OF A PROVISION
INCLUDING IN THE GROSS ESTATE PROPERTY WHICH A DECEDENT HAS TRANSFERRED
RETAINING POWER ALONE, OR IN CONJUNCTION WITH ANY OTHER PERSON, TO
ALTER, AMEND, OR REVOKE.  FN7  WE HELD THE PURPOSE OF THE CLAUSE WAS TO
PREVENT AVOIDANCE OF TAX AND THE MEASURE WAS REASONABLY CALCULATED TO
THAT END.  AS APPLIED TO A TRUST CREATED AFTER ITS ENACTMENT THE JOINT
RESOLUTION DOES NOT VIOLATE THE FIFTH AMENDMENT. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  C. 27, 44 STAT. 9, 70; U.S.C. TIT. 26, SEC. 411(C). 

FN2  C. 454, 46 STAT. 1516; U.S.C. TIT. 26, SEC. 411(C). 

FN3  34 B.T.A. 243. 

FN4  90 F.(2D) 144. 

FN5  C. 209, 47 STAT. 169, 279; U.S.C. TIT. 26, SEC. 411(C). 

FN6  IN THE MATTER OF KEENEY, 194 N.Y. 281, 287; 87 N.E. 428;
AFFIRMED 222 U.S. 525. 

FN7  HELVERING V. CITY BANK FARMERS T. CO., 296 U.S. 85, 90.  COMPARE
MILLIKEN V. UNITED STATES, 283 U.S. 15; TYLER V. UNITED STATES, 281
U.S. 497. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :









HASSETT V. WELCH, 303 U.S. 303 


NO. 375.  ARGUED FEBRUARY 1, 1938.  - DECIDED FEBRUARY 28, 1938.  - 90
F.2D 833 -  91 F.2D 1010, AFFIRMED. 


1.  SEC. 302(C) OF THE REV. ACT OF 1926, WHICH REQUIRED THAT THERE BE
INCLUDED IN A DECEDENT'S ESTATE, FOR ESTATE TAX PURPOSES, ANY PROPERTY
INTEREST OF WHICH THE DECEDENT HAS "AT ANY TIME" MADE A TRANSFER IN
CONTEMPLATION OF OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT
AT OR AFTER DEATH, WAS AMENDED BY THE JOINT RESOLUTION OF MARCH 3,
1931, TO INCLUDE "A TRANSFER UNDER WHICH THE TRANSFEROR HAS RETAINED
FOR HIS LIFE  ...  THE POSSESSION OR ENJOYMENT OF, OR THE INCOME FROM,
THE PROPERTY."  SECTION 803(A) OF THE REV. ACT OF JUNE 6, 1932,
SUBSTANTIALLY REENACTS THIS PROVISION.  HELD: 

(1)  THAT THE ADDED PROVISION DOES NOT APPLY TO TRANSFERS MADE
BEFORE, BY DECEDENTS WHO DIED AFTER, THE ENACTMENT OF THE JOINT
RESOLUTION.  P. 307. 

(2)  THIS CONSTRUCTION IS CONFIRMED (A) BY THE LEGISLATIVE HISTORY
AND ADMINISTRATIVE INTERPRETATION OF THE JOINT RESOLUTION; (B) BY ITS
REENACTMENT IN THE LIGHT OF THAT INTERPRETATION.  P. 309. 

2.  SECTION 302(H) OF THE REV. ACT OF 1926, PROVIDED "EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED THEREIN SUBDIVISIONS (B), (C), (D),
(E), (F), AND (G) OF THIS SECTION SHALL APPLY TO THE TRANSFERS, TRUSTS,
ESTATES, INTERESTS, RIGHTS, POWERS, AND RELINQUISHMENT OF POWERS, AS
SEVERALLY ENUMERATED AND DESCRIBED THEREIN, WHETHER MADE, CREATED,
ARISING, EXISTING, EXERCISED, OR RELINQUISHED BEFORE OR AFTER THE
ENACTMENT OF THIS ACT."  SUBDIVISION (C) DEALT WITH TRANSFERS IN
CONTEMPLATION OF, OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT
AT OR AFTER, DEATH.  THE JOINT RESOLUTION OF 1931, SUPRA, AMENDED SEC.
302(C) TO INCLUDE NON-TESTAMENTARY TRANSFERS WITH RESERVATION OF LIFE
ESTATE TO TRANSFEROR.  HELD THAT SEC. 302(H) DOES NOT MAKE THE
AMENDMENT APPLY RETROACTIVELY TO THE KIND OF TRANSFERS THEREBY ADDED. 
P. 313. 

3.  AN ADOPTION BY ONE SECTION OF A STATUTE OF THE PARTICULAR
PROVISIONS OF ANOTHER SECTION BY SPECIFIC AND DESCRIPTIVE REFERENCE
DOES NOT EMBRACE OTHER PARTICULARS ADDED LATER BY AMENDMENT TO THE

4.  IN THE ABSENCE OF CLEAR EXPRESSION TO THE CONTRARY, A LAW IS
PRESUMED TO OPERATE PROSPECTIVELY.  ID. 

5.  IF DOUBT EXISTS AS TO THE CONSTRUCTION OF A TAXING STATUTE, THE
DOUBT SHOULD BE RESOLVED IN FAVOR OF THE TAXPAYER.  ID. 

HASSETT, FORMER ACTING COLLECTOR, V. WELCH ET AL., EXECUTORS.* 

*TOGETHER WITH NO. 484, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. MARSHALL, ADMINISTRATOR.  ON WRIT OF CERTIORARI TO THE CIRCUIT COURT
OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 302 U.S. 674, 677, TO REVIEW TWO DECISIONS OF CIRCUIT
COURTS OF APPEALS AGAINST ESTATE TAX ASSESSMENTS.  IN NO. 375, THE
TAXPAYERS APPEALED FROM A JUDGMENT OF THE DISTRICT COURT FOR THE
COLLECTOR, 15 F.SUPP.  692.  IN NO. 484, THERE WAS AN APPEAL BY THE
COMMISSIONER FROM THE ADVERSE DECISION OF THE BOARD OF TAX APPEALS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONERS ASK US TO HOLD THAT SEC. 302(C) OF THE REVENUE ACT OF
1926  FN1  AS AMENDED BY THE JOINT RESOLUTION OF CONGRESS OF MARCH 3,
1931,  FN2  AND SEC. 803(A) OF THE REVENUE ACT OF 1932,  FN3  INCLUDES
IN THE GROSS ESTATE OF A DECEDENT, FOR ESTATE TAX, PROPERTY WHICH,
BEFORE THE ADOPTION OF THE AMENDMENTS, WAS IRREVOCABLY TRANSFERRED WITH
RESERVATION OF A LIFE ESTATE TO THE TRANSFEROR; AND THAT, SO APPLIED,
THE STATUTE DOES NOT OFFEND THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT OF THE CONSTITUTION.  THE NUMEROUS CASES PENDING IN THE
COURTS AND THE BOARD OF TAX APPEALS INVOLVING THESE QUESTIONS, AND THE
CLAIM THAT DECISIONS OF THIS COURT HAVE NOT SETTLED THE MATTER, MOVED
US TO GRANT CERTIORARI. 

THE RESPONDENTS IN NO. 375 ARE EXECUTORS UNDER THE WILL OF A DECEDENT
WHO DIED NOVEMBER 20, 1932.  ON FEBRUARY 13, 1924, VOLUNTARILY AND
WITHOUT VALUABLE CONSIDERATION, HE TRANSFERRED TO A TRUSTEE PROPERTY
WHICH HE EXPECTED TO RECEIVE UNDER THE WILL OF HIS BROTHER, RESERVING
TO HIMSELF THE INCOME FOR LIFE, DIRECTING DIVISION OF THE INCOME AFTER
HIS DEATH BETWEEN NEPHEWS AND NIECES AND DISTRIBUTION OF THE CORPUS,
UPON THE DEATH OF THE SURVIVOR OF THEM, AMONGST THEIR THEN LIVING
ISSUE.  AFTER HIS BROTHER'S DEATH, AND ON OCTOBER 22, 1926, HE DULY
RATIFIED AND CONFIRMED THE ORIGINAL TRUST INSTRUMENT.  THE COMMISSIONER
RULED THAT THE VALUE OF THE TRUST ASSETS SHOULD BE INCLUDED IN THE
DECEDENT'S GROSS ESTATE, IN THE VIEW THAT THE TRANSFER WAS
TESTAMENTARY, BECAUSE MADE IN CONTEMPLATION OF DEATH, OR INTENDED TO
TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER DEATH, WITHIN THE
MEANING OF SEC. 302(C) OF THE REVENUE ACT OF 1926.  THE RESPONDENTS
PAID THE RESULTING TAX AND SUED FOR REFUND IN THE DISTRICT COURT OF
MASSACHUSETTS.  JUDGMENT WENT FOR THE COLLECTOR.  FN4  THE CIRCUIT
COURT OF APPEALS HELD THAT THE DISTRICT COURT ERRED IN CONCLUDING THAT
THE TRANSFER WAS MADE IN CONTEMPLATION OF DEATH OR WAS INTENDED TO TAKE
EFFECT IN POSSESSION OR ENJOYMENT AFTER DEATH.  THE PETITIONER
NEVERTHELESS INSISTED UPON THE LEGALITY OF THE EXACTION AS THE DECEDENT
DIED AFTER THE 1931 AND 1932 AMENDMENTS OF SEC. 302(C), WHICH DECLARED
THE PROPERTY TRANSFERRED A PART OF THE GROSS ESTATE FOR COMPUTATION OF
ESTATE TAX, IN VIRTUE OF THE RESERVATION TO THE TRANSFEROR OF THE
INCOME FOR HIS LIFE.  THE COURT OVERRULED THE CONTENTION, HOLDING THAT,
IF SO RETROACTIVELY ENFORCED, THE LEGISLATION VIOLATED THE FIFTH
AMENDMENT OF THE CONSTITUTION, AND REVERSED THE JUDGMENT.  FN5  IN HIS
APPLICATION FOR CERTIORARI THE PETITIONER DID NOT ASSIGN ERROR TO THE
CIRCUIT COURT'S RULING AS TO THE NONTESTAMENTARY CHARACTER OF THE
TRANSFER BUT CONFINED HIS ATTACK TO THE DECISION THAT THE AMENDMENTS OF
SEC. 302(C) COULD NOT CONSTITUTIONALLY BE INVOKED TO SUSTAIN THE TAX. 

IN NO. 484 IT APPEARS THAT THE DECEDENT DIED INTESTATE JUNE 4, 1933. 
THE RESPONDENT, HER SON, IS HER ADMINISTRATOR.  NOVEMBER 15, 1920, SHE
TRANSFERRED TO HIM CERTAIN CASH AND SECURITIES.  ON THE SAME DAY THEY
ENTERED INTO AN AGREEMENT RECITING AN UNDERSTANDING THAT, IN CASE OF
HIS DEATH DURING HER LIFE, THE SECURITIES AND CASH SHOULD BE RECONVEYED
TO HER AND, IN THE MEANTIME, HE SHOULD PAY HER SUCH PORTIONS OF THE
INCOME THEREFROM AS SHE MIGHT FROM TIME TO TIME REQUEST IN WRITING;
THAT WHILE HE HELD THE SECURITIES HE MIGHT INVEST AND REINVEST; THAT HE
SHOULD BEQUEATH HER ALL THE ASSETS CONSTITUTING THE FUND, IN CASE SHE
SURVIVED HIM; THAT SHE WOULD REIMBURSE HIM FOR ANY INCREASED INCOME
TAXES PAYABLE BY HIM IN VIRTUE OF HIS OWNERSHIP OF THE FUND AND THAT,
IF SHE SHOULD SURVIVE HIM AND TAKE THE PROPERTY UNDER HIS WILL, SHE
WOULD REIMBURSE HIS ESTATE FOR STATE AND FEDERAL INHERITANCE TAXES DUE
BY REASON OF THE BEQUEST.  THE AGREEMENT CONTAINED OTHER PROVISIONS FOR
THE SAFEGUARDING AND SEPARATE CUSTODY OF THE FUND DURING THE MOTHER'S
LIFE.  THE RESPONDENT PAID THE DECEDENT PORTIONS OF THE INCOME UPON HER
REQUEST.  HE EXECUTED A WILL BEQUEATHING THE PROPERTY TO HER ON THE
TERMS MENTIONED IN THE AGREEMENT, BUT UPON HER DEATH, HE REVOKED THE
BEQUEST.  THE COMMISSIONER INCLUDED THE VALUE OF THE FUND IN THE
DECEDENT'S GROSS ESTATE, HOLDING THAT SHE HAD MADE A TRANSFER WITHIN
THE TERMS OF SEC. 302(C) OF THE REVENUE ACT OF 1926, AS AMENDED IN 1931
AND 1932.  THE BOARD OF TAX APPEALS REVERSED THE COMMISSIONER'S
DETERMINATION AND THE COURT OF APPEALS AFFIRMED ITS ACTION  FN6  UPON
THE AUTHORITY OF THE DECISION OF THE CIRCUIT COURT OF APPEALS OF THE
FIRST CIRCUIT IN NO. 375 AND THAT OF THE SEVENTH CIRCUIT IN HELVERING
V. BULLARD, ANTE, P. 297. 

COUNSEL FOR THE GOVERNMENT ARGUE THAT THE JOINT RESOLUTION OF 1931
AND SEC. 803(A) OF THE REVENUE ACT OF 1932 WERE INTENDED TO IMPOSE AN
ESTATE TAX MEASURED BY TRANSFERS OF THE SORT THEREIN DESCRIBED WHICH
HAD BEEN IRREVOCABLY MADE PRIOR TO THE PASSAGE OF THE LEGISLATION AND
THAT, SO CONSTRUED, THEY ARE NOT ARBITRARILY OR UNREASONABLY
RETROACTIVE AND DO NOT OFFEND THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  COUNSEL FOR RESPONDENTS ANSWER THAT THE ENACTMENTS WERE
INTENDED TO OPERATE ONLY UPON TRANSFERS SUBSEQUENTLY CONSUMMATED AND,
IF CONSTRUED TO REACH THE PAST TRANSFERS HERE INVOLVED, VIOLATE THE
AMENDMENT.  WE HOLD THAT THE STATUTES ARE PROSPECTIVE IN THEIR
OPERATION AND DO NOT IMPOSE A TAX IN RESPECT OF PAST IRREVOCABLE
TRANSFERS WITH RESERVATION OF A LIFE INTEREST. 

ASCERTAINMENT OF THE INTENDED APPLICATION OF THE JOINT RESOLUTION OF
MARCH 3, 1931, AND SEC. 803(A) OF THE REVENUE ACT OF 1932, INVOLVES A
READING OF THEM IN THE LIGHT OF CASES CONSTRUING SIMILAR PHRASEOLOGY OF
EARLIER ACTS, THEIR LEGISLATIVE HISTORY AND ADMINISTRATIVE
INTERPRETATION.  THERE IS AGREEMENT THAT SEC. 803(A) REENACTED THE
SUBSTANCE OF THE JOINT RESOLUTION WITH BUT SLIGHT VERBAL DIFFERENCES. 
IT WILL, THEREFORE, BE NECESSARY TO QUOTE ONLY THE RESOLUTION.  BY IT
SEC. 302(C) OF THE REVENUE ACT OF 1926, SUPRA, WAS AMENDED TO PROVIDE: 

"THE VALUE OF THE GROSS ESTATE OF THE DECEDENT SHALL BE DETERMINED BY
INCLUDING THE VALUE AT THE TIME OF HIS DEATH OF ALL PROPERTY, REAL OR
PERSONAL, TANGIBLE OR INTANGIBLE, WHEREVER SITUATED - 

     .         .         .         .         . 

"(C)  TO THE EXTENT OF ANY INTEREST THEREIN OF WHICH THE DECEDENT HAS
AT ANY TIME MADE A TRANSFER, BY TRUST OR OTHERWISE, IN CONTEMPLATION OF
OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH, INCLUDING A TRANSFER UNDER WHICH THE TRANSFEROR HAS RETAINED FOR
HIS LIFE OR ANY PERIOD NOT ENDING BEFORE HIS DEATH (1) THE POSSESSION
OR ENJOYMENT OF, OR THE INCOME FROM, THE PROPERTY OR (2) THE RIGHT TO
DESIGNATE THE PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE
INCOME THEREFROM; EXCEPT IN CASE OF A BONA FIDE SALE FOR AN ADEQUATE
AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH." 

THE MATTER IN ORDINARY TYPE IS SEC. 302(C) AS IT WAS PRIOR TO
AMENDMENT; THE ADDITIONS ARE IN ITALICS. 

THE GOVERNMENT RELIES ON THE WORDS "AT ANY TIME" AS DEMONSTRATING
THAT THE LEGISLATION WAS INTENDED TO APPLY TO TRANSFERS MADE BEFORE ITS
ADOPTION AND IS SO UNEQUIVOCAL AS TO LEAVE NO ROOM FOR CONSTRUCTION. 
THIS PHRASE, APPEARING IN AN EARLIER REVENUE ACT, HAD, HOWEVER, BEEN
HELD NOT TO RENDER THE STATUTE EFFECTIVE UPON TRANSFERS ANTEDATING THE
PASSAGE OF THE ACT  FN7  AND CONGRESS APPARENTLY REALIZED THAT THE
EXPRESSION DID NOT CARRY THE STATUTE BACK SO AS TO EMBRACE TRANSACTIONS
CONSUMMATED BEFORE ITS PASSAGE; FOR, IN SUBSECTION (H) OF SEC. 302 OF
THE ACT OF 1926,  FN8  IN REFERRING TO TRANSACTIONS AND INTERESTS
GIVING RISE TO A TAX BY VIRTUE OF PRECEDING SUBSECTIONS, IT DIRECTED
THAT THEY SHOULD BE TAXABLE "WHETHER MADE, CREATED, ARISING, EXISTING,
EXERCISED, OR RELINQUISHED BEFORE OR AFTER THE ENACTMENT OF THIS ACT." 
FN9  WE CONCLUDE THAT THE MEANING OF THE SECTION IS NOT SO FREE FROM
DOUBT AS TO PRECLUDE INQUIRY CONCERNING THE LEGISLATIVE PURPOSE. 

THE HISTORY OF THE RESOLUTION IS OF MATERIAL AID IN ITS
CONSTRUCTION.  SECTION 302(C) OF THE ACT OF 1926, LIKE EARLIER ACTS,
MEASURED THE TAX BY THE INCLUSION IN THE GROSS ESTATE OF PROPERTY OF
WHICH THE DECEDENT HAD MADE A VOLUNTARY TRANSFER IN CONTEMPLATION OF,
OR INTENDED TO TAKE EFFECT IN POSSESSION OR ENJOYMENT AT OR AFTER HIS
DEATH.  NOTWITHSTANDING THE TREASURY HAD RULED THAT A TRANSFER OF
ASSETS WITH A RESERVATION OF INCOME FOR THE DONOR'S LIFE CAME WITHIN
THE DEFINITION THIS COURT HELD OTHERWISE.  FN10  DISSATISFIED WITH THE
DECISION, THE GOVERNMENT SOUGHT A REVERSAL OF IT BUT, IN THREE
JUDGMENTS, ANNOUNCED ON MARCH 2, 1931, THE RULING WAS REAFFIRMED.  FN11
IN THE OPINIONS IN THESE CASES, WHICH LED TO THE PREPARATION AND
ADOPTION OF THE RESOLUTION, THE COURT SAID THERE WAS "NO QUESTION OF
THE CONSTITUTIONAL AUTHORITY OF THE CONGRESS TO IMPOSE PROSPECTIVELY A
TAX WITH RESPECT TO TRANSFERS OR TRUSTS OF THE SORT HERE INVOLVED
..."  THERE THEN REMAINED ONE DAY OF THE CURRENT SESSION OF CONGRESS. 
THE TREASURY DRAFTED AN AMENDMENT OF SEC. 302(C) TO BRING TRUSTS OF
THIS TYPE WITHIN ITS SWEEP, IN THE FORM OF THE JOINT RESOLUTION OF
MARCH 3, 1931, WHICH WAS SENT TO CONGRESS ON THE DAY OF OUR DECISIONS
AND WAS PASSED, UNDER A SUSPENSION OF THE RULES, ON THE NEXT DAY, THE
LAST OF THE SESSION.  FN12 

BECAUSE ITS PASSAGE WAS CONSIDERED EXIGENT THE RESOLUTION WAS ADOPTED
WITHOUT HAVING BEEN PRINTED AND IN RELIANCE ON STATEMENTS MADE FROM THE
FLOOR.  THE CONGRESSIONAL RECORD DISCLOSES THE UNDERSTANDING OF THE
CONGRESS WITH RESPECT TO ITS SCOPE.  MR. GARNER, OF THE HOUSE WAYS AND
MEANS COMMITTEE, STATED:  "THE COMMITTEE ON WAYS AND MEANS THIS
AFTERNOON HAD A MEETING AND UNANIMOUSLY REPORTED THE RESOLUTION JUST
PASSED.  WE DID NOT MAKE IT RETROACTIVE FOR THE REASON THAT WE WERE
AFRAID THAT THE SENATE WOULD NOT AGREE TO IT."  FN13 

MR. HAWLEY, OF THE SAME COMMITTEE, IN CHARGE OF THE RESOLUTION,
STATED, IN ANSWER TO A QUESTION: "IT PROVIDES THAT HEREAFTER NO SUCH
METHOD SHALL BE USED TO EVADE THE TAX" AND, REFERRING TO THE SITUATION
CREATED BY THE DECISIONS OF THIS COURT, HE SAID: 

"IT IS ENTIRELY APPARENT THAT IF THIS SITUATION IS PERMITTED TO
CONTINUE, THE FEDERAL ESTATE TAX WILL BE SERIOUSLY AFFECTED.  ENTIRELY
APART FROM THE REFUNDS THAT MAY BE EXPECTED TO RESULT, IT IS TO BE
ANTICIPATED THAT MANY PERSONS WILL PROCEED TO EXECUTE TRUSTS OR OTHER
VARIETIES OF TRANSFERS UNDER WHICH THEY WILL BE ENABLED TO ESCAPE THE
ESTATE TAX UPON THEIR PROPERTY.  IT IS OF THE GREATEST IMPORTANCE
THEREFORE THAT THIS SITUATION BE CORRECTED AND THAT THIS OBVIOUS
OPPORTUNITY FOR TAX AVOIDANCE BE REMOVED.  IT IS FOR THAT PURPOSE THAT
THE JOINT RESOLUTION IS PROPOSED." 

THIS LANGUAGE, WE THINK, SCARCELY BEARS THE INTERPRETATION PUT UPON
IT BY GOVERNMENT COUNSEL,  - THAT THE TAX WAS MEANT TO BE LAID ON
ESTATES OF ALL WHO DIED AFTER THE ADOPTION OF THE RESOLUTION. 

BEARING IN MIND THAT THE RESOLUTION WAS PREPARED AND ITS PASSAGE
RECOMMENDED BY THE TREASURY, THE ADMINISTRATIVE INTERPRETATION SUPPORTS
IN UNCOMMON MEASURE THE VIEW THAT IT WAS NOT INTENDED TO OPERATE UPON
TRANSFERS COMPLETED PRIOR TO ITS PASSAGE.  PROMPTLY UPON ITS PASSAGE
THE DEPARTMENT ISSUED T.D. 4314,  FN14  APPROVED BY THE SECRETARY OF
THE TREASURY MAY 22, 1931, WHICH WAS IN THE FORM OF A LETTER TO
COLLECTORS OF INTERNAL REVENUE AND OTHERS CONCERNED.  IT QUOTED THE
LANGUAGE OF THE RESOLUTION AND STATED: 

"IN VIEW OF THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES
IN NICHOLS V. COOLIDGE, (274 U.S., 531(T.D. 4072, C.B. VI-2, 351)), MAY
V. HEINER, (281 U.S., 238(CT. D. 186, C.B. IX-1, 382)), COOLIDGE V.
LONG, (282 U.S., 582), BURNET V. NORTHERN TRUST CO. (51 S. CT., 342),
EDGAR M. MORSMAN, JR., V. BURNET, (51 S. CT., 343) AND CYRUS H.
MCCORMICK V. BURNET (51 S. CT., 343), THE PORTION ADDED BY THE
AMENDMENT TO SECTION 302(C) OF THE REVENUE ACT OF 1926, AS SET FORTH
ABOVE IN ITALIC, WILL, NOTWITHSTANDING THE PROVISIONS OF SECTION 302(H)
OF THAT ACT, BE APPLIED PROSPECTIVELY ONLY; I.E., TO SUCH TRANSFERS
COMING WITHIN THE AMENDMENT AS WERE MADE AFTER 10.30 P.M., WASHINGTON,
D.C., TIME, MARCH 3, 1931. 

"REGULATIONS 70, 1929 EDITION, WILL BE AMENDED TO MAKE THE CHANGES
NECESSITATED BY THE AMENDMENT TO SECTION 302(C) OF THE REVENUE ACT OF
1926 AND THE ABOVE DECISIONS OF THE SUPREME COURT." 

APRIL 11, 1932, REGULATIONS 70 WERE AMENDED BY T.D. 4336 AND, IN
PART, READ: 

"ART. 18.  RETENTION OF POSSESSION, ENJOYMENT, OR INCOME.  - ANY
TRANSFER WHICH WAS MADE BY THE DECEDENT AFTER 10.30 P.M., WASHINGTON,
D.C., TIME, MARCH 3, 1931, AND UNDER WHICH HE RETAINED FOR HIS LIFE OR
ANY PERIOD NOT ENDING BEFORE HIS DEATH (1) THE POSSESSION OR ENJOYMENT
OF, OR THE INCOME FROM, THE PROPERTY OR (2) THE RIGHT TO DESIGNATE THE
PERSONS WHO SHALL POSSESS OR ENJOY THE PROPERTY OR THE INCOME
THEREFROM, IS TAXABLE, PROVIDED SUCH TRANSFER WAS NOT A BONA FIDE SALE
FOR AN ADEQUATE AND FULL CONSIDERATION IN MONEY OR MONEY'S WORTH." 
NOT ONLY IS THE LEGISLATIVE HISTORY OF SEC. 803(A) OF THE ACT OF 1932
BARE OF INDICATION OF ANY PURPOSE THAT IT SHOULD AFFECT PAST TRANSFERS,
BUT WHAT APPEARS TENDS TO DISPROVE ANY SUCH THOUGHT.  FN15  MOREOVER,
THE REENACTMENT OF THE RESOLUTION OF 1931 IN THE LIGHT OF THE
ADMINISTRATIVE RULINGS REQUIRES THE CONCLUSION THAT CONGRESS APPROVED
AND ADOPTED THE ADMINISTRATIVE CONSTRUCTION OF THE PROVISION IT
REENACTED.  FN16 

REGULATIONS 80, APPROVED NOVEMBER 7, 1934, AFTER PARAPHRASING SEC.
803(A), CONCLUDED:  "THE PROVISIONS OF THIS SUBDIVISION DO NOT APPLY
(1) IF THE TRANSFER WAS MADE PRIOR TO 10.30 P.M., EASTERN STANDARD
TIME, MARCH 3, 1931, AND (2) IF THE DECEDENT DIED PRIOR TO 5 P.M.
EASTERN STANDARD TIME, JUNE 6, 1932(THE DATE OF PASSAGE OF THE REVENUE
ACT OF 1932).  SEE SECTION 506 OF THE REVENUE ACT OF 1934."  THIS
REGULATION WAS RETAINED AS ARTICLE 18 IN THE 1937 EDITION OF
REGULATIONS 80 ISSUED OCTOBER 26, 1937.  THUS WHILE THE REGULATIONS
HAVE BEEN ALTERED TO TREAT SEC. 803(A) OF THE 1932 ACT AS RETROACTIVELY
AFFECTING TRANSFERS MADE AFTER MARCH 3, 1931, THE DEPARTMENT HAS
CONSISTENTLY RULED THAT THE RESOLUTION OF 1931 HAS NO APPLICATION TO
TRANSFERS MADE PRIOR TO ITS ADOPTION.  THE POSITION THUS RECENTLY TAKEN
IS INCONSISTENT IN ITS TREATMENT OF THE TWO LIKE ENACTMENTS AND IS
DIFFICULT TO UNDERSTAND IN VIEW OF THE CONSISTENT INTERPRETATION OF THE
JOINT RESOLUTION BUT IT FAILS TO WEAKEN THE FORCE OF THAT CONSISTENT
INTERPRETATION WITH KNOWLEDGE OF WHICH CONGRESS REENACTED THE SAME
PROVISION IN 1932. 

THE GOVERNMENT URGES THAT ALL OF THESE CIRCUMSTANCES WHICH ARE
PERSUASIVE THAT THE ENACTMENTS WERE INTENDED TO OPERATE FOR THE FUTURE
ARE OVERBORNE BY SEC. 302(H) OF THE REVENUE ACT OF 1926, WHICH IS: 

"EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN SUBDIVISIONS (B),
(C), (D), (E), (F), AND (G) OF THIS SECTION SHALL APPLY TO THE
TRANSFERS, TRUSTS, ESTATES, INTERESTS, RIGHTS, POWERS, AND
RELINQUISHMENT OF POWERS, AS SEVERALLY ENUMERATED AND DESCRIBED
THEREIN, WHETHER MADE, CREATED, ARISING, EXISTING, EXERCISED, OR
RELINQUISHED BEFORE OR AFTER THE ENACTMENT OF THIS ACT." 

IT WILL BE REMEMBERED THAT THE JOINT RESOLUTION OF 1931 AMENDED SEC.
302(C) OF THE ACT OF 1926 TO COVER TRANSFERS SUCH AS ARE HERE
INVOLVED.  IT MADE NO REFERENCE TO ANY OTHER PORTION OF THAT ACT. 
SINCE SEC. 302(C) IN ITS ORIGINAL FORM WAS, BY SEC. 302(H), MADE
APPLICABLE TO TRANSFERS WHETHER MADE BEFORE OR AFTER THE ACT OF 1926,
THE CONTENTION IS THAT IT HAS LIKE OPERATION AND EFFECT AS RESPECTS THE
PROVISION ADDED TO IT BY THE AMENDMENT.  AND THE SAME ARGUMENT IS
ADVANCED WITH RESPECT TO THE AMENDMENT OF SUBSECTION (C) BY THE ACT OF
1932. 

RESORT IS HAD TO CANONS OF CONSTRUCTIONS AS AN AID IN ASCERTAINING
THE INTENT OF THE LEGISLATURE.  IT MAY OCCUR THAT THE INTENT IS SO
CLEAR THAT NO SUCH RESORT SHOULD BE INDULGED, AND THE GOVERNMENT CLAIMS
THIS IS SUCH A CASE.  THE MATTER IS, WE THINK, INVOLVED IN SUFFICIENT
AMBIGUITY TO WARRANT OUR SEEKING SUCH AID.  A WELL-SETTLED CANON TENDS
TO SUPPORT THE POSITION OF RESPONDENTS:  "WHERE ONE STATUTE ADOPTS THE
PARTICULAR PROVISIONS OF ANOTHER BY A SPECIFIC AND DESCRIPTIVE
REFERENCE TO THE STATUTE OR PROVISIONS ADOPTED, THE EFFECT IS THE SAME
AS THOUGH THE STATUTE OR PROVISIONS ADOPTED HAD BEEN INCORPORATED
BODILY INTO THE ADOPTING STATUTE  ...  SUCH ADOPTION TAKES THE STATUTE
AS IT EXISTS AT THE TIME OF ADOPTION AND DOES NOT INCLUDE SUBSEQUENT
ADDITIONS OR MODIFICATIONS OF THE STATUTE SO TAKEN UNLESS IT DOES SO BY
EXPRESS INTENT."  FN17 THE WEIGHT OF AUTHORITY HOLDS THIS RULE
RESPECTING TWO SEPARATE ACTS APPLICABLE WHERE, AS HERE, ONE SECTION OF
A STATUTE REFERS TO ANOTHER SECTION WHICH ALONE IS AMENDED.  FN18 

IN VIEW OF OTHER SETTLED RULES OF STATUTORY CONSTRUCTION, WHICH TEACH
THAT A LAW IS PRESUMED, IN THE ABSENCE OF CLEAR EXPRESSION TO THE
CONTRARY, TO OPERATE PROSPECTIVELY N19; THAT, IF DOUBT EXISTS AS TO THE
CONSTRUCTION OF A TAXING STATUTE, THE DOUBT SHOULD BE RESOLVED IN FAVOR
OF THE TAXPAYER,  FN20  WE FEEL BOUND TO HOLD THAT THE JOINT RESOLUTION
OF 1931 AND SEC. 803(A) OF THE ACT OF 1932 APPLY ONLY TO TRANSFERS WITH
RESERVATION OF LIFE INCOME MADE SUBSEQUENT TO THE DATES OF THEIR
ADOPTION RESPECTIVELY. 

HOLDING THIS VIEW, WE NEED NOT CONSIDER THE CONTENTION THAT THE
STATUTES AS APPLIED TO THE TRANSFERS UNDER CONSIDERATION DEPRIVE THE
RESPONDENTS OF THEIR PROPERTY WITHOUT DUE PROCESS IN VIOLATION OF THE
FIFTH AMENDMENT. 

THE JUDGMENTS ARE AFFIRMED. 

FN1  C. 27, 44 STAT. 9, 70; U.S.C. TIT. 26, SEC. 411(C). 

FN2  C. 454, 46 STAT. 1516; U.S.C. TIT. 26, SEC. 411(C). 

FN3  C. 209, 47 STAT. 169, 279; U.S.C. TIT. 26, SEC. 411(C). 

FN4  15 F.SUPP.  692. 

FN5  90 F.(2D) 833. 

FN6  91 F.(2D) 1010. 

FN7  SHWAB V. DOYLE, 258 U.S. 529; UNION TRUST CO. V. WARDELL, 258
U.S. 537; CONSTRUING SEC. 202 OF THE ACT OF SEPT. 8, 1916, 39 STAT.
777. 

FN8  44 STAT. 71, U.S.C. TIT. 26, SEC. 411(H). 

FN9  COMPARE SHWAB V. DOYLE, SUPRA, AT P. 536; LEWELLYN V. FRICK, 268
U.S. 238, 252. 

FN10  MAY V. HEINER, 281 U.S. 238, CONSTRUING SEC. 402(C) OF THE
REVENUE ACT OF 1918, 40 STAT. 1057, 1097. 

FN11  BURNET V. NORTHERN TRUST CO., 283 U.S. 782; MORSMAN V. BURNET,
283 U.S. 783; MCCORMICK V. BURNET, 283 U.S. 784, CONSTRUING SEC. 402(C)
OF THE REVENUE ACT OF 1921 AND SEC. 302(C) OF THE REVENUE ACT OF 1924. 

FN12  CONG. REC., 71ST CONG., 3RD SESS., VOL. 74, PART 7, P. 7198. 

FN13  CONG. REC., 71ST CONG., 3RD SESS., VOL. 74, PART 7, PP. 7198
7199. 

FN14  C.B. X-1, 450. 

FN15  THE REPORTS OF THE COMMITTEES OF BOTH HOUSE AND SENATE CONTAIN
THIS STATEMENT:  "THE PURPOSE OF THIS AMENDMENT TO SECTION 302(C) OF
THE REVENUE ACT OF 1926 IS TO CLARIFY IN CERTAIN RESPECTS THE
AMENDMENTS MADE TO THAT SECTION BY THE JOINT RESOLUTION OF MARCH 3,
1931, WHICH WERE ADOPTED TO RENDER TAXABLE A TRANSFER UNDER WHICH THE
DECEDENT RESERVED THE INCOME FOR HIS LIFE.  THE JOINT RESOLUTION WAS
DESIGNED TO AVOID THE EFFECT OF DECISIONS OF THE SUPREME COURT HOLDING
SUCH A TRANSFER NOT TAXABLE IF IRREVOCABLE AND NOT MADE IN
CONTEMPLATION OF DEATH.  CERTAIN NEW MATTER HAS ALSO BEEN ADDED, WHICH
IS WITHOUT RETROACTIVE EFFECT" (HOUSE COMMITTEE REPORT NO. 708, 72ND
CONG., 1ST SESS.; SENATE COMMITTEE REPORT NO. 665, SAME SESSION). 

FN16  BREWSTER V. GAGE, 280 U.S. 327, 337; UNITED STATES V. DAKOTA
MONTANA OIL CO., 288 U.S. 459, 466; MCFEELY V. COMMISSIONER, 296 U.S.
102, 108; UNITED STATES V. SAFETY CAR HEATING & L. CO., 297 U.S. 88,
95. 

FN17  LEWIS' SUTHERLAND ON STATUTORY CONSTRUCTION, 2D ED., VOL. II,
PP. 787-8. 

FN18  CALUMET FOUNDRY & M. CO. V. MROZ, 79 IND. APP. 305; 137 N.E.
627; STATE V. BECKNER, 197 IOWA 1252; 198 N.W. 643; CROHN V. TELEPHONE
CO., 131 MO. APP. 313; 109 S.W. 1068; GUSTAFSON V. HAMMOND IRRIGATION
DIST., 87 MONT. 217; 287 PAC. 640; FLANDERS V. TOWN OF MERRIMACK, 48
WIS. 567; 4 N.W. 741; CONTRA, AMERICAN BANK V. GOSS, 236 N.Y. 488, 142
N.E. 156. 

FN19  UNITED STATES V. HETH, 3 CRANCH 399, 413; REYNOLDS V. M'ARTHUR,
2 PET. 417, 434; SHWAB V. DOYLE, 258 U.S. 529; UNITED STATES V.
MAGNOLIA PETROLEUM CO., 276 U.S. 160, 162. 

FN20  GOULD V. GOULD, 245 U.S. 151; SHWAB V. DOYLE, SUPRA; REINECKE V.
NORTHERN TRUST CO., 278 U.S. 339, 348; WHITE V. ARONSON, 302 U.S. 16. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THESE CASES. 
..END :






















ESCANABA & L.S.R. CO. V. U.S., 303 U.S. 315 


NO. 415.  ARGUED FEBRUARY 4, 7, 1938.  - DECIDED FEBRUARY 28, 1938.  -
21 F.SUPP.  151, AFFIRMED. 


1.  WHETHER THE INTERSTATE COMMERCE COMMISSION SHOULD APPROVE A
POOLING AGREEMENT BETWEEN COMPETING CARRIERS, UNDER SEC. 5(1) OF THE
INTERSTATE COMMERCE ACT, IS A QUESTION OF PUBLIC INTEREST AND WELFARE. 
OTHER CARRIERS, AS WELL AS SHIPPERS AND OTHER PERSONS, ARE ENTITLED TO
BE HEARD ON THIS QUESTION; BUT A CARRIER WHICH IS NOT A PARTY TO THE
AGREEMENT IS NOT A "CARRIER INVOLVED," WITHIN THE MEANING OF THE
AGREEMENT BY WITHHOLDING ITS ASSENT.  P. 319. 

2.  THE 'M' RAILROAD CARRIED IRON ORE FROM THE MINES TO A LAKE PORT,
PART OF THE WAY OVER ITS OWN LINE AND THENCE TO THE PORT OVER THE LINE
OF 'E' RAILROAD UNDER A TRACKAGE AGREEMENT.  THE 'N' RAILROAD CARRIED
SUCH ORE FROM THE MINES TO THE PORT OVER ITS OWN LINE.  BOTH 'N' AND
'M' INTERCHANGED OTHER FREIGHT WITH 'E' AT THEIR RESPECTIVE CONNECTIONS
WITH THAT LINE.  TO EFFECT ECONOMIES, 'M' AND 'N' APPLIED FOR AND
OBTAINED FROM THE INTERSTATE COMMERCE COMMISSION, UNDER SEC. 5(1) OF
THE INTERSTATE COMMERCE ACT, AN ORDER SANCTIONING AN AGREEMENT BETWEEN
THEM UNDER WHICH ORE CONSIGNED OVER EITHER WOULD BE ROUTED OVER 'N',
AND THE ORE BUSINESS BE POOLED BETWEEN THEM; AND UNDER WHICH 'M' AND
'N' WERE ALSO TO POOL THEIR RECEIPTS FROM OTHER TRAFFIC INTERCHANGED BY
EITHER OF THEM WITH 'E'.  HELD THAT 'E' WAS NOT A "CARRIER INVOLVED" IN
THE POOLING AGREEMENT, WITHIN THE MEANING OF THE SECTION ABOVE
MENTIONED, AND THAT ITS ASSENT WAS NOT NECESSARY TO THE COMMISSION'S
APPROVAL.  PP. 317-322. 

'E' WAS NOT A CARRIER OF THE ORE HAULED BY 'M' UNDER THE TRACKAGE
AGREEMENT; IT RECEIVED NO PART OF THE FREIGHT PAID; ISSUED NO BILLS-OF
LADING, AND MAINTAINED NO TARIFF FOR THAT TRANSPORTATION.  IT NEITHER
HELD ITSELF OUT TO SERVE IN THAT RESPECT NOR RENDERED ANY SERVICE TO
SHIPPERS OF ORE; AND, AS RESPECTS THE PROPOSED POOLING OF FREIGHTS ON
THE OTHER INTERCHANGED TRAFFIC, IT WAS NOT A CARRIER INVOLVED IN THE
SERVICE RENDERED UP TO THE EXCHANGE POINTS. 

ESCANABA & LAKE SUPERIOR RAILROAD CO. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF MICHIGAN. 

APPEAL FROM A DECREE DISMISSING A BILL TO SET ASIDE AN ORDER OF THE
INTERSTATE COMMERCE COMMISSION. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE JUDGMENT OF A SPECIALLY CONSTITUTED
DISTRICT COURT  FN1  DISMISSING THE APPELLANT'S BILL WHICH PRAYED
RELIEF AGAINST AN ORDER OF THE INTERSTATE COMMERCE COMMISSION APPROVING
AND AUTHORIZING A PROPOSED POOLING AGREEMENT BETWEEN TWO OTHER
RAILROADS.  FN2  THE SINGLE QUESTION PRESENTED IS WHETHER THE APPELLANT
IS A "CARRIER INVOLVED" WITHIN THE MEANING OF SEC. 5(1) OF THE
INTERSTATE COMMERCE ACT.  FN3 

THE APPELLANT, HEREINAFTER SOMETIMES CALLED "ESCANABA," IS A MICHIGAN
CORPORATION OPERATING A RAILROAD WHICH DOES BUSINESS IN INTRASTATE AND
INTERSTATE COMMERCE.  ITS LINE EXTENDS FROM ESCANABA, MICHIGAN, A PORT
ON LAKE MICHIGAN, NORTHWESTERLY SOME SIXTY-THREE MILES TO CHANNING,
WHICH IS ON THE NORTHERN BORDER OF THE MENOMINEE ORE DISTRICT.  THIS
DISTRICT WAS REACHED IN 1900, AND STILL IS SERVED, BY THE LINES OF THE
CHICAGO AND NORTHWESTERN RAILROAD COMPANY (HEREIN DENOMINATED
"NORTHWESTERN") EXTENDING FROM THE MINES IN A GENERAL SOUTHEASTERLY
DIRECTION TO THE NORTHWESTERN'S ORE DOCKS AT ESCANABA.  THE CHICAGO,
MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY (HEREIN CALLED
"MILWAUKEE") HAD IN AND PRIOR TO 1900 A LINE REACHING THE MENOMINEE
DISTRICT BUT THE ORE SHIPPED OVER THIS LINE WENT SOUTH TO A CONNECTION
WITH THE SOO LINE AND THENCE EASTWARD TO A DESTINATION OTHER THAN
ESCANABA.  MILWAUKEE AND ESCANABA ENTERED INTO AN AGREEMENT IN 1900
WHEREBY THE FORMER WAS TO HAVE TRACKAGE RIGHTS FOR ITS TRAINS OF IRON
ORE FROM CHANNING TO ESCANABA, WHERE THE MILWAUKEE CONSTRUCTED ITS OWN
ORE DOCKS FOR THE LADING OF ORE INTO LAKE STEAMERS, AND TRACKAGE RIGHTS
FOR THE RETURN OF ITS EMPTY CARS FROM ESCANABA TO CHANNING.  ON THE
FOOTING OF THIS CONTRACT ESCANABA MADE A LARGE INVESTMENT IN ROADWAY
SUITABLE FOR THE ACCOMMODATION OF MILWAUKEE'S TRAINS. 

THE DETAILS OF THE AGREEMENT ARE UNIMPORTANT.  IT WILL SUFFICE TO SAY
THAT MILWAUKEE HAD NO RIGHT TO CARRY PASSENGERS OR FREIGHT, INCLUDING
ORE, TO INTERMEDIATE POINTS ON THE LINE OF ESCANABA; HAD NO SCHEDULES
FOR ITS ORE TRAINS; OPERATED THEM BY ITS OWN PERSONNEL AND POWER,
SUBJECT, HOWEVER, TO THE CONTROL OF THE LINE BY ESCANABA'S DISPATCHERS
AND SIGNAL MEN.  MILWAUKEE WAS TO PAY FOR THE PRIVILEGE A CERTAIN
WHEELAGE CHARGE WHICH, IN NO EVENT, WAS TO BE LESS THAN $27,000 A YEAR
WHETHER THE TOTAL WHEELAGE AMOUNTED TO THAT SUM OR NOT; AND WAS TO PAY
CERTAIN OTHER AMOUNTS TOWARDS THE MAINTENANCE OF ESCANABA'S LINE.  A
RENEWAL OF THIS AGREEMENT IS NOW IN FORCE AND WILL SO REMAIN UNTIL
JANUARY 1, 1951. 

MILWAUKEE'S DOCKS AT ESCANABA HAVE FALLEN INTO DISREPAIR.  TO AVOID
THE LARGE EXPENDITURE REQUIRED TO RESTORE THEM, AND TO RETAIN A SHARE
OF THE ORE TRANSPORTATION, MILWAUKEE NEGOTIATED A POOLING AGREEMENT
WITH NORTHWESTERN UNDER THE TERMS OF WHICH ORE CONSIGNED OVER EITHER
LINE FROM THE MINES TO ESCANABA WILL BE ROUTED OVER NORTHWESTERN'S LINE
AND USE NORTHWESTERN'S DOCKS AT ESCANABA AND THE ORE BUSINESS OF BOTH
LINES WILL BE POOLED ON AN AGREED BASIS.  INASMUCH AS CERTAIN FREIGHT
OTHER THAN IRON ORE HAS BEEN INTERCHANGED BY MILWAUKEE WITH ESCANABA AT
CHANNING AND BY NORTHWESTERN WITH ESCANABA AT ESCANABA, AND, AS IT IS
BELIEVED THE ORE POOLING ARRANGEMENT AND DISCONTINUANCE OF MILWAUKEE'S
ORE HAULAGE OVER ESCANABA'S TRACKS MAY CAUSE ESCANABA TO ABANDON THE
WESTERN END OF ITS LINE, THUS PREVENTING THE INTERCHANGE OF MILWAUKEE
AND ESCANABA AT CHANNING, IT IS FURTHER AGREED THAT MILWAUKEE AND
NORTHWESTERN SHALL POOL THE RECEIPTS FROM INTERCHANGE TRAFFIC EXCHANGED
BY EITHER OF THEM WITH ESCANABA, TO RECOMPENSE MILWAUKEE FOR POSSIBLE
LOSS OF BUSINESS RESULTING FROM THE ORE TRAFFIC POOL.  THE TWO
RAILROADS, PARTIES TO THE POOLING AGREEMENT, SUBMITTED IT TO THE
INTERSTATE COMMERCE COMMISSION FOR APPROVAL.  FN4  THAT BODY HELD THAT
THE PROPOSED DISCONTINUANCE OF OPERATION BY MILWAUKEE OVER ESCANABA'S
LINE UNDER THE TRACKAGE AGREEMENT AMOUNTED TO AN ABANDONMENT AS DEFINED
BY SEC. 1(18) OF THE INTERSTATE COMMERCE ACT  FN5  AND, WITHOUT THE
COMMISSION'S APPROVAL OF THE ABANDONMENT, THE POOLING AGREEMENT COULD
NOT BECOME EFFECTIVE.  THE COMMISSION, THEREFORE, REFUSED TO PASS UPON
IT. THEREUPON THE PARTIES RESUBMITTED THE POOLING AGREEMENT TOGETHER
WITH A CONDITIONAL APPLICATION BY MILWAUKEE FOR ABANDONMENT OF ITS ORE
HAULAGE OVER ESCANABA.  ESCANABA INTERVENED IN THE PROCEEDING, AND
RESISTED THE ISSUE OF AN ORDER OF APPROVAL.  A HEARING WAS HAD AT WHICH
NOT ONLY ESCANABA BUT MANY SHIPPERS AND COMMUNITIES ON ITS LINE
PRESENTED EVIDENCE.  THE COMMISSION MADE THE FINDINGS REQUIRED BY SECS.
1(18) AND 5(1) OF THE ACT, PARTICULARLY THAT THE PROPOSED POOLING
ARRANGEMENT AND ABANDONMENT OF THE LINE BY MILWAUKEE WOULD PROMOTE THE
PUBLIC INTEREST AND CONVENIENCE AND ISSUED ORDERS AUTHORIZING THE
PROPOSED ARRANGEMENT.  ESCANABA HAS ABANDONED THE CONTENTION MADE IN
THE DISTRICT COURT, AND THERE OVERRULED, THAT THE COMMISSION'S FINDINGS
ARE NOT SUPPORTED BY ANY EVIDENCE, AND HERE ATTACKS ONLY THE ALLEGED
ERROR OF LAW OF THE COMMISSION AND THE COURT BELOW IN HOLDING THAT IT
IS NOT A "PARTY INVOLVED" IN THE POOLING AGREEMENT WITHIN THE MEANING
OF SEC. 5(1), WHOSE ASSENT IS NECESSARY TO THE APPROVAL OF THE
COMMISSION. 

TERMS FORBADE ALL POOLING OF FREIGHTS OF DIFFERENT AND COMPETING
RAILROADS AND ALL AGREEMENTS FOR DIVISION OF AGGREGATE OR NET PROCEEDS
OF THEIR EARNINGS OR ANY PORTION THEREOF.  THE TRANSPORTATION ACT,
1920, QUALIFIED THIS PROHIBITION BY EXCEPTING SUCH ARRANGEMENTS AS
SHOULD HAVE THE SPECIFIC APPROVAL OF THE COMMISSION, AND THAT APPROVAL
WAS THUS CONDITIONED: 

"THAT WHENEVER THE COMMISSION IS OF OPINION, AFTER HEARING UPON
APPLICATION OF ANY CARRIER OR CARRIERS ENGAGED IN THE TRANSPORTATION OF
PASSENGERS OR PROPERTY SUBJECT TO THIS ACT, OR UPON ITS OWN INITIATIVE,
THAT THE DIVISION OF THEIR TRAFFIC OR EARNINGS, TO THE EXTENT INDICATED
BY THE COMMISSION, WILL BE IN THE INTEREST OF BETTER SERVICE TO THE
PUBLIC, OR ECONOMY IN OPERATION, AND WILL NOT UNDULY RESTRAIN
COMPETITION, THE COMMISSION SHALL HAVE AUTHORITY BY ORDER TO APPROVE
AND AUTHORIZE, IF ASSENTED TO BY ALL THE CARRIERS INVOLVED, SUCH
DIVISION OF TRAFFIC OR EARNINGS, UNDER SUCH RULES AND REGULATIONS, AND
FOR SUCH CONSIDERATION AS BETWEEN SUCH CARRIERS AND UPON SUCH TERMS AND
CONDITIONS, AS SHALL BE FOUND BY THE COMMISSION TO BE JUST AND
REASONABLE IN THE PREMISES." 

THE CONTROVERSY REVOLVES AROUND THE MEANING OF THE PHRASE "IF
ASSENTED TO BY ALL THE CARRIERS INVOLVED."  ESCANABA INSISTS THAT IT IS
A CARRIER INVOLVED IN THE PROPOSED AGREEMENT, AND ITS ASSENT IS
NECESSARY TO AN AFFIRMATIVE ORDER OF THE COMMISSION.  THE APPELLEES
DENY THAT IT IS SUCH AND THE COMMISSION AND THE DISTRICT COURT HAVE
HELD WITH THEM.  WE ARE OF OPINION THAT THE DECREE OF THE DISTRICT
COURT WAS RIGHT AND MUST BE AFFIRMED. 

FIRST.  THE AMENDMENT OF SEC. 5(1) OF THE ORIGINAL STATUTE BY THE
TRANSPORTATION ACT, 1920, WAS ONE OF THE ALTERATIONS MADE IN THE ACT AS
A RESULT OF EXPERIENCE GAINED FROM UNIFIED OPERATION OF THE RAILROADS
UNDER FEDERAL CONTROL.  THE STRICT SANCTIONS OF THE ORIGINAL ACT,
INTENDED TO PRESERVE COMPETITION BETWEEN CARRIERS, WERE, IN A NUMBER OF
INSTANCES, RELAXED.  MERGERS AND CONSOLIDATIONS WERE AUTHORIZED,
POOLING ARRANGEMENTS WERE TO BE PERMITTED, EXTENSIONS AND ABANDONMENTS
WERE MADE LAWFUL AND DIVISIONS OF JOINT THROUGH RATES MIGHT BE
ADJUSTED, ALL FOR THE SAKE OF ECONOMY AND EFFICIENCY AND THE PREVENTION
OF DESTRUCTIVE COMPETITIVE PRACTICES, AND ALL SUBJECT TO THE
SUPERVISION AND CONTROL OF THE INTERSTATE COMMERCE COMMISSION, AND ITS
FINDING THAT THE ACTION PROPOSED OR ORDERED WOULD BE IN THE PUBLIC
INTEREST.  THESE AMENDMENTS ARE TO BE GIVEN LIBERAL CONSTRUCTION IN AID
OF THE PURPOSES CONGRESS HAD IN MIND.  UNDER THE NEW PROVISIONS,
MILWAUKEE AND NORTHWESTERN MIGHT HAVE MERGED OR CONSOLIDATED IF THE
COMMISSION FOUND SUCH A PROCEDURE WOULD BE IN THE PUBLIC INTEREST. 
SIMILAR CONSIDERATIONS WOULD JUSTIFY THEIR PROPOSED POOLING OF FREIGHT
TRANSPORTATION.  SHIPPERS OVER ESCANABA'S LINES, COMMUNITIES SERVED BY
IT, AND, INDEED, SHIPPERS IN COMMUNITIES ON DISTANT LINES AND PERSONS
HAVING NO OTHER INTEREST THAN THAT OF THE GENERAL PUBLIC WELFARE, WERE
ENTITLED TO BE HEARD BEFORE THE COMMISSION AND TO PRESENT WHATEVER
PROOFS MIGHT TEND TO SHOW THAT THE PROPOSED AGREEMENT WOULD OR WOULD
NOT BE FOR THE PUBLIC WELFARE.  THEY, HOWEVER, ARE NOT "CARRIERS
INVOLVED," MENTIONED IN SEC. 5(1).  ESCANABA HAD THE UNDOUBTED RIGHT
ACCORDED IT TO APPEAR AND TO BE HEARD ON THE QUESTION OF THE PUBLIC
INTEREST AND WELFARE AND INDEED SO HAD EVERY CARRIER HAVING CONNECTIONS
WITH MILWAUKEE AND NORTHWESTERN.  THE QUESTION INVOLVED IN THE
APPELLANT'S CONTENTION IS WHETHER IT OR ANY OTHER CARRIER, NOT ACTUALLY
A PARTY TO THE POOLING AGREEMENT, IS A "CARRIER INVOLVED" WITHIN THE
MEANING OF THE ACT, SO THAT IT MAY FRUSTRATE THE AGREEMENT BY
WITHHOLDING ITS ASSENT. 

SECOND.  ESCANABA IS NOT A CARRIER OF THE ORE WHICH IS HAULED BETWEEN
CHANNING AND ESCANABA UNDER THE TRACKAGE AGREEMENT.  IT RECEIVES NO
PART OF THE FREIGHT PAID, IT ISSUES NO BILLS OF LADING, IT MAINTAINS NO
TARIFFS COVERING THAT TRANSPORTATION.  IT NEITHER HOLDS ITSELF OUT TO
SERVE IN THAT RESPECT NOR RENDERS ANY SERVICE TO SHIPPERS OF ORE; AND,
AS RESPECTS THE PROPOSED POOLING OF FREIGHTS ON MILWAUKEE'S TRAFFIC,
EXCHANGED WITH IT AT CHANNING, AND NORTHWESTERN'S TRAFFIC, EXCHANGED
WITH IT AT ESCANABA, IS NOT A CARRIER INVOLVED IN THE SERVICE RENDERED
UP TO THE EXCHANGE POINTS, WHICH IS TO BE POOLED.  BUT IT IS SAID THAT
THE WORD "INVOLVED" CONNOTES SOMETHING MORE THAN A PARTY TO AN
AGREEMENT; THAT IT EMBRACES ANY RAILROAD AFFECTED BY THE ARRANGEMENT. 
AND, IT IS URGED, ESCANABA WILL BE SERIOUSLY INJURED BY THE PROPOSED
ARRANGEMENT, IN SPITE OF THE CONTINUING OBLIGATION OF MILWAUKEE TO PAY
IT A MINIMUM OF $27,000 PER ANNUM UNTIL 1951. 

IF A CARRIER NOT A PARTY, BUT ADVERSELY AFFECTED, IS "INVOLVED" IN
THE SENSE OF SEC. 5(1) ESCANABA'S ASSENT IS A CONDITION PRECEDENT TO
AUTHORIZATION BY THE COMMISSION.  WE MUST THEN DETERMINE THE MEANING OF
THE PHRASE AS USED IN THE STATUTE.  AID IS AFFORDED BY THE CONTEXT. 
THE SECTION GIVES THE COMMISSION AUTHORITY TO APPROVE AND AUTHORIZE,
"IF ASSENTED TO BY ALL THE CARRIERS INVOLVED,  ...  UNDER SUCH RULES
AND REGULATIONS, AND FOR SUCH CONSIDERATION AS BETWEEN SUCH CARRIERS
AND UPON SUCH TERMS AND CONDITIONS," AS THE COMMISSION SHALL FIND JUST
AND REASONABLE.  THIS REFERENCE TO THE MUTUAL CONSIDERATIONS TO BE
EXCHANGED BY "SUCH CARRIERS" SHOWS THAT CONGRESS MEANT BY THE PHRASE
"ALL THE CARRIERS INVOLVED," THOSE, AND THOSE ONLY, WHO ARE PARTIES TO
THE POOLING OF FREIGHTS AND THE DIVISION OF THE PROCEEDS.  ESCANABA,
HOWEVER, INSISTS THAT IF THE SECTION IS TO BE CONSTRUED TO REQUIRE THE
ASSENT OF NONE BUT THE PARTIES TO THE POOLING AGREEMENT IT IS MERE
SURPLUSAGE.  IT POINTS OUT THAT MILWAUKEE AND NORTHWESTERN HAVE
ASSENTED AND ARE NOW MERELY ASKING THE APPROVAL AND AUTHORIZATION OF
THE COMMISSION.  THE ARGUMENT, HOWEVER, OVERLOOKS THE FACT THAT THE
COMMISSION MAY AUTHORIZE POOLING ON THE APPLICATION OF A SINGLE CARRIER
OR UPON ITS OWN INITIATIVE.  IN THE FIRST CASE THE ASSENT OF ONE OR
MORE OTHER CARRIERS, AND IN THE SECOND THE ASSENT OF ALL THE CARRIERS
IS A PREREQUISITE TO ITS ACTION.  IT APPEARS, THEREFORE, THAT THOUGH
CONFINED TO THE PARTIES TO THE POOL, THE REQUIREMENT THAT ALL CARRIERS
INVOLVED SHALL ASSENT HAS A PROPER OFFICE IN THE STATUTORY SCHEME. 

THIRD.  IN VIEW OF ESCANABA'S RELATION TO THE TRAFFIC INVOLVED IN THE
PROPOSED POOL, THE DECISION THAT ITS ASSENT IS A PREREQUISITE TO THE
PLAN'S OPERATION WOULD INVOLVE THE GRAVEST INCONVENIENCE AND PERHAPS
RENDER THE PROVISION OF SEC. 5(1) NUGATORY.  IT IS DIFFICULT TO
CONCEIVE OF ANY POOLING ARRANGEMENT BETWEEN TWO CARRIERS WHICH WILL NOT
AFFECT, IN A GREATER OR LESS DEGREE, OTHER CARRIERS WHO INTERCHANGE
TRAFFIC WITH ONE OR THE OTHER OF THE POOLING ROADS, OR WITH THEIR
CONNECTIONS.  IF THE PRIVATE INTEREST OF ANY SUCH OUTSIDE CARRIER
SHOULD MOVE IT TO REFUSE ITS ASSENT TO THE ARRANGEMENT IT COULD, IN THE
VIEW URGED BY THE APPELLANT, VETO THE PROPOSAL ALTHOUGH, ON THE WHOLE
AND IN THE LONG VIEW, THE CONSUMMATION OF THE PLAN MIGHT GREATLY
ENHANCE THE ECONOMIES OF OPERATION OF LARGE AND IMPORTANT CARRIERS AND
SO PROMOTE THE PUBLIC INTEREST.  WE CANNOT BELIEVE THAT EVERY CARRIER,
IN SUCH SENSE AFFECTED BY A PROPOSED POOL TO WHICH IT IS NOT A PARTY,
WAS INTENDED TO HAVE A STATUS DIFFERENT FROM, AND PERHAPS AT WAR WITH,
THE INTEREST OF THE GENERAL PUBLIC IN THE EFFICIENT AND ECONOMICAL
OPERATION OF THE RAILROADS ENVISAGED BY THE TRANSPORTATION ACT. 

WE CONCLUDE THAT NOT ONLY THE WORDS OF THE STATUTE BUT THE OBVIOUS
POLICY AND INTENT UNDERLYING ITS PROVISIONS REQUIRE AN AFFIRMANCE OF
THE JUDGMENT OF THE DISTRICT COURT.  AFFIRMED.    FN1  21 F.SUPP. 
151. 

FN2  210 I.C.C. 599; 219 I.C.C. 285. 

FN3  ACT OF FEB. 4, 1887, C. 104, 24 STAT. 380, AS AMENDED BY
TRANSPORTATION ACT OF FEB. 28, 1920, C. 91, SEC. 407, 41 STAT. 480,
U.S.C. TIT. 49, SEC. 5(1). 

FN4  THEY WERE REPRESENTED BEFORE THE COMMISSION BY THEIR RESPECTIVE
TRUSTEES APPOINTED UNDER SEC. 77 OF THE BANKRUPTCY ACT. 

FN5  U.S.C. TIT. 49, SEC. 1(18). 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :






LAUF V. E.G. SHINNER & CO., 303 U.S. 323 


NO. 293.  ARGUED JANUARY 12, 1938.  - DECIDED FEBRUARY 28, 1938.  - 90
F.2D 250, REVERSED. 


1.  AN UNINCORPORATED LABOR UNION DEMANDED OF AN EMPLOYER THAT HE
REQUIRE ALL HIS EMPLOYEES, NONE OF WHOM BELONGED TO THE UNION, ON PAIN
OF DISMISSAL, TO JOIN IT AND MAKE IT THEIR BARGAINING AGENT.  THE
EMPLOYEES, THOUGH LEFT FREE IN THE MATTER BY THE EMPLOYER, REFUSED TO
JOIN, HAVING AN ORGANIZATION OF THEIR OWN.  THE EMPLOYER HAVING
REJECTED THE DEMAND, THE MEMBERS OF THE UNION, FOR THE PURPOSE OF
COERCING HIM AND IN A CONSPIRACY TO DESTROY HIS BUSINESS IF HE REFUSED
TO YIELD, CAUSED FALSE AND MISLEADING SIGNS TO BE PLACED BEFORE HIS
MARKETS; CAUSED PERSONS WHO WERE NOT HIS EMPLOYEES TO PARADE AND PICKET
BEFORE THE MARKETS; FALSELY ACCUSED HIM OF BEING UNFAIR TO ORGANIZED
LABOR IN DEALINGS WITH EMPLOYEES, AND, BY MOLESTATION, ANNOYANCE,
THREATS, AND INTIMIDATION, PREVENTED PATRONS AND PROSPECTIVE PATRONS OF
THE EMPLOYER FROM PATRONIZING THE MARKETS.  IRREPARABLE INJURY
RESULTED.  HELD: 

(1)  THAT THERE WAS A "LABOR DISPUTE" WITHIN THE MEANING OF WISCONSIN
LABOR CODE, SECS. 103.62, 103.53, AND OF THE NORRIS-LAGUARDIA ACT, 29
U.S.C. SEC. 113(C).  P. 327. 

(2)  IN A SUIT BROUGHT BY THE EMPLOYER AGAINST THE UNION FOR AN
INJUNCTION, THE SUBSTANTIVE RIGHTS OF THE PARTIES WERE GOVERNED BY THE
STATE LAW, AS CONSTRUED BY THE STATE SUPREME COURT.  ID. 

(3)  AN INJUNCTION WAS TOO BROAD WHICH INCLUDED PEACEFUL PICKETING,
ADVERTISING THE EMPLOYER AS UNFAIR TO ORGANIZED LABOR, SOLICITATION OF
CUSTOMERS NOT TO TRADE, ETC., THESE BEING ACTS WHICH ARE MADE LAWFUL BY
THE WISCONSIN LABOR CODE, SEC. 103.53, IF FRAUD, VIOLENCE OR THREAT
THEREOF ARE NOT INVOLVED.  P. 328. 

(4)  THE DISTRICT COURT WAS WITHOUT JURISDICTION TO GRANT AN
INJUNCTION IN THE ABSENCE OF FINDINGS OF FACT REQUIRED BY THE NORRIS
LAGUARDIA ACT, 29 U.S.C. SEC. 117.  P. 329. 

(5)  THE DECLARATIONS OF POLICY IN THE TWO ACTS MENTIONED, TO THE
EFFECT THAT EMPLOYEES SHALL HAVE FULL FREEDOM OF ASSOCIATION,
DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING, ETC., FREE FROM
COERCION OF THEIR EMPLOYERS, DID NOT PUT THE CASE BEYOND THE SCOPE OF
THOSE ACTS, SINCE THOSE DECLARATIONS DO NOT NARROW THE DEFINITION OF
"LABOR DISPUTE" IN THE ACTS; AND THE RIGHTS OF THE PARTIES AND THE
JURISDICTION OF THE FEDERAL COURTS ARE TO BE DETERMINED ACCORDING TO
THE EXPRESS PROVISIONS APPLICABLE TO LABOR DISPUTES AS SO DEFINED.  P.
330. 

2.  SINCE THE COURTS BELOW DID NOT PASS ON THE QUESTIONS OF THE
LEGALITY UNDER THE WISCONSIN LAW, OF THE ACTS CHARGED TO HAVE BEEN DONE
BY THE UNION, OR THE CONSTITUTIONALITY OF THAT LAW IN LEGALIZING ANY OF
SUCH ACTS, NO OPINION IS EXPRESSED ON THESE QUESTIONS, AND THE CASE IS
REMANDED.  P. 330. 

LAUF ET AL. V. E.G. SHINNER & CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 302 U.S. 669, TO REVIEW THE AFFIRMANCE OF A DECREE
PERMANENTLY ENJOINING ACTS ON THE PART OF A LABOR UNION,  - PICKETING,
PARADE OF MISLEADING SIGNS, SOLICITATION OF CUSTOMERS, ETC. - DIRECTED
AGAINST THE PLAINTIFF, A RETAIL DEALER IN MEATS.  SEE ALSO 82 F.2D 68. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT TO RESTRAIN THE PETITIONERS FROM PICKETING THE
RESPONDENT'S PLACE OF BUSINESS; FROM COERCING THE RESPONDENT TO
DISCHARGE ANY OF ITS EMPLOYEES WHO DO NOT BELONG TO THE PETITIONING
UNION, OR TO COMPEL THEM TO BECOME MEMBERS OF THE UNION AND TO ACCEPT
IT AS THEIR BARGAINING AGENT AND REPRESENTATIVE; AND FROM ADVERTISING
THAT THE RESPONDENT IS UNFAIR TO ORGANIZED LABOR, OR MOLESTING
CUSTOMERS OR PROSPECTIVE CUSTOMERS OR PERSUADING THEM TO CEASE
PATRONIZING IT.  AFTER A HEARING, AND UPON FINDINGS OF FACT AND
CONCLUSIONS OF LAW, THE DISTRICT COURT GRANTED A PRELIMINARY
INJUNCTION.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  FN1  UPON FINAL
HEARING THE PARTIES RELIED UPON THE RECORD AS MADE IN THE PRELIMINARY
HEARING AND SOME ADDITIONAL TESTIMONY. 

THE DISTRICT COURT FOUND THE FOLLOWING FACTS:  THE RESPONDENT IS A
DELAWARE CORPORATION MAINTAINING FIVE MEAT MARKETS IN MILWAUKEE,
WISCONSIN.  THE PETITIONERS ARE, RESPECTIVELY, AN UNINCORPORATED LABOR
UNION AND ITS BUSINESS MANAGER, CITIZENS AND RESIDENTS OF WISCONSIN. 
THE RESPONDENT'S EMPLOYEES NUMBER ABOUT THIRTY-FIVE, NONE OF THEM ARE
MEMBERS OF THE PETITIONING UNION.  THE PETITIONERS MADE DEMAND UPON THE
RESPONDENT TO REQUIRE ITS EMPLOYEES, AS A CONDITION OF THEIR CONTINUED
EMPLOYMENT, TO BECOME MEMBERS OF THE UNION.  THE RESPONDENT NOTIFIED
THE EMPLOYEES THAT THEY WERE FREE TO DO THIS AND THAT IT WAS WILLING TO
PERMIT THEM TO JOIN BUT THEY DECLINED AND REFUSED TO JOIN.  THE UNION
HAD NOT BEEN CHOSEN BY THE EMPLOYEES TO REPRESENT THEM IN ANY MATTER
CONNECTED WITH THE RESPONDENT.  FOR THE PURPOSE OF COERCING THE
RESPONDENT TO REQUIRE ITS EMPLOYEES TO JOIN THE UNION AND TO ACCEPT IT
AS THEIR BARGAINING AGENT AND REPRESENTATIVE, AS A CONDITION OF
CONTINUED EMPLOYMENT, AND FOR THE PURPOSE OF INJURING AND DESTROYING
THE BUSINESS IF THE RESPONDENT REFUSED TO YIELD TO SUCH COERCION, THE
PETITIONERS CONSPIRED TO DO THE FOLLOWING THINGS AND DID THEM:  THEY
CAUSED FALSE AND MISLEADING SIGNS TO BE PLACED BEFORE THE RESPONDENT'S
MARKETS; CAUSED PERSONS WHO WERE NOT RESPONDENT'S EMPLOYEES TO PARADE
AND PICKET BEFORE THE MARKETS; FALSELY ACCUSED RESPONDENT OF BEING
UNFAIR TO ORGANIZED LABOR IN ITS DEALINGS WITH EMPLOYEES, AND, BY
MOLESTATION, ANNOYANCE, THREATS, AND INTIMIDATION PREVENTED PATRONS AND
PROSPECTIVE PATRONS OF RESPONDENT FROM PATRONIZING ITS MARKETS;
RESPONDENT SUFFERED AND WILL SUFFER IRREPARABLE INJURY FROM THE
CONTINUANCE OF THE PRACTICE AND CUSTOMERS WILL BE INTIMIDATED AND
RESTRAINED FROM PATRONIZING THE STORES AS A CONSEQUENCE OF PETITIONERS'
ACTS.  THERE IS MORE THAN $3,000 INVOLVED IN THE CONTROVERSY. 

THE DISTRICT COURT HELD THAT NO LABOR DISPUTE, AS DEFINED BY FEDERAL
OR STATE LAW, EXISTS BETWEEN THE RESPONDENT AND THE PETITIONERS OR
EITHER OF THEM; THAT THE RESPONDENT IS BOUND TO PERMIT ITS EMPLOYEES
FREE AGENCY IN THE MATTER OF CHOICE OF UNION ORGANIZATION OR
REPRESENTATION; AND THAT THE RESPONDENT HAD NO ADEQUATE REMEDY AT LAW. 
IT ENTERED A FINAL DECREE ENJOINING THE PETITIONERS FROM SEEKING TO
COERCE THE RESPONDENT TO DISCHARGE ANY OF ITS EMPLOYEES FOR REFUSAL TO
JOIN THE UNION OR TO COERCE THE RESPONDENT TO COMPEL EMPLOYEES TO
BECOME MEMBERS OF THE ORGANIZATION, FROM ADVERTISING THAT THE
RESPONDENT IS UNFAIR TO ORGANIZED LABOR, AND FROM ANNOYING OR MOLESTING
PATRONS OR PERSUADING OR SOLICITING CUSTOMERS, PRESENT OR PROSPECTIVE,
NOT TO PATRONIZE THE RESPONDENT'S MARKETS. 

THE CIRCUIT COURT OF APPEALS AFFIRMED THE DECREE.  FN2  BY REASON OF
ALLEGED CONFLICT WITH A DECISION OF THE SUPREME COURT OF WISCONSIN,
(222 WIS. 383; 268 N.W. 270, 873) AND WITH OUR DECISION IN SENN V. TILE
LAYERS PROTECTIVE UNION, 301 U.S. 468, WE GRANTED THE WRIT OF
CERTIORARI. 

IN THE COURT OF APPEALS THE PETITIONERS ASSIGNED ERROR TO CERTAIN OF
THE DISTRICT COURT'S FINDINGS OF FACT AS WELL AS TO ITS CONCLUSIONS OF
LAW.  IN THIS COURT THE ONLY ERRORS ASSIGNED ARE TO THE HOLDINGS THAT,
ON THE FACTS FOUND, THERE WAS NO LABOR DISPUTE AND THAT THE NORRIS
LAGUARDIA ACT AND THE WISCONSIN LABOR CODE HAD NO BEARING ON THE CASE
AS MADE.  IN THESE CIRCUMSTANCES WE ACCEPT THE FINDINGS OF FACT AND
CONFINE OUR INQUIRY TO THE CORRECTNESS OF THE DISTRICT COURT'S
CONCLUSIONS BASED UPON THEM. 

THE INSTITUTION OF THE SUIT IN THE FEDERAL COURT IS JUSTIFIED BY THE
FINDINGS AS TO DIVERSITY OF CITIZENSHIP AND THE AMOUNT IN CONTROVERSY. 
AS THE ACTS COMPLAINED OF OCCURRED IN WISCONSIN THE LAW OF THAT STATE
GOVERNS THE SUBSTANTIVE RIGHTS OF THE PARTIES.  BUT THE POWER OF THE
COURT TO GRANT THE RELIEF PRAYED DEPENDS UPON THE JURISDICTION
CONFERRED UPON IT BY THE STATUTES OF THE UNITED STATES. 

FIRST.  THE DISTRICT COURT ERRED IN HOLDING THAT NO LABOR DISPUTE, AS
DEFINED BY THE LAW OF WISCONSIN, EXISTED BETWEEN THE PARTIES.  SECTION
103.62, PARAGRAPH (3) OF THE WISCONSIN LABOR CODE,  FN3  IS: 

"THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING THE
TERMS OR CONDITIONS OF EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR
REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING, MAINTAINING,
CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF EMPLOYMENT, OR
CONCERNING EMPLOYMENT RELATIONS, OR ANY OTHER CONTROVERSY ARISING OUT
OF THE RESPECTIVE INTERESTS OF EMPLOYER AND EMPLOYEE, REGARDLESS OF
WHETHER OR NOT THE DISPUTANTS STAND IN THE PROXIMATE RELATION OF
EMPLOYER AND EMPLOYEE." 

THE DISTRICT COURT WAS BOUND BY THE CONSTRUCTION OF THE SECTION BY
THE SUPREME COURT OF THE STATE,  FN4  WHICH HAS HELD A CONTROVERSY
INDISTINGUISHABLE FROM THAT HERE DISCLOSED TO BE A LABOR DISPUTE WITHIN
THE MEANING OF THE STATUTE.  FN5 

SECOND.  THE DISTRICT COURT ERRED IN NOT APPLYING THE PROVISIONS OF
SEC. 103.53  FN6  OF THE WISCONSIN LABOR CODE, WHICH DECLARES CERTAIN
CONDUCT LAWFUL IN LABOR DISPUTES; INTER ALIA "GIVING PUBLICITY TO  ...
THE EXISTENCE OF, OR THE FACTS INVOLVED IN, ANY DISPUTE  ...  BY  ...
PATROLLING ANY PUBLIC STREET  ...  WITHOUT INTIMIDATION OR COERCION, OR
BY ANY OTHER METHOD NOT INVOLVING FRAUD, VIOLENCE, BREACH OF THE PEACE,
OR THREAT THEREOF"; ADVISING, URGING, OR INDUCING, WITHOUT FRAUD,
VIOLENCE OR THREAT THEREOF, OTHERS TO CEASE TO PATRONIZE ANY PERSON;
PEACEFUL PICKETING OR PATROLLING, WHETHER SINGLY OR IN NUMBERS.  A
WISCONSIN COURT COULD NOT ENJOIN ACTS DECLARED BY THE STATUTE TO BE
LAWFUL; FN7  AND THE DISTRICT COURT HAS NO GREATER POWER TO DO SO. THE
ERROR INTO WHICH THE COURT FELL AS TO THE EXISTENCE OF A LABOR DISPUTE
LED IT INTO THE FURTHER ERROR OF ISSUING AN ORDER SO SWEEPING AS TO
ENJOIN ACTS MADE LAWFUL BY THE STATE STATUTE.  THE DECREE FORBADE ALL
PICKETING, ALL ADVERTISING THAT THE RESPONDENT WAS UNFAIR TO ORGANIZED
LABOR AND ALL PERSUASION AND SOLICITATION OF CUSTOMERS OR PROSPECTIVE
CUSTOMERS NOT TO TRADE WITH RESPONDENT. 

THIRD.  THE DISTRICT COURT ERRED IN GRANTING AN INJUNCTION IN THE
ABSENCE OF FINDINGS WHICH THE NORRIS-LAGUARDIA ACT  FN8  MAKES
PREREQUISITES TO THE EXERCISE OF JURISDICTION. 


"THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING TERMS
OR CONDITIONS OF EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR
REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING, MAINTAINING,
CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF EMPLOYMENT
REGARDLESS OF WHETHER OR NOT THE DISPUTANTS STAND IN THE PROXIMATE
RELATION OF EMPLOYER AND EMPLOYEE." 

THIS DEFINITION DOES NOT DIFFER MATERIALLY FROM THAT ABOVE QUOTED
FROM THE WISCONSIN LABOR CODE, AND THE FACTS OF THE INSTANT CASE BRING
IT WITHIN BOTH. 

HAVE JURISDICTION TO ISSUE A TEMPORARY OR PERMANENT INJUNCTION IN ANY
CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE, AS HEREIN DEFINED"
EXCEPT AFTER A HEARING OF A DESCRIBED CHARACTER, "AND EXCEPT AFTER
FINDINGS OF FACT BY THE COURT, TO THE EFFECT (A) THAT UNLAWFUL ACTS
HAVE BEEN THREATENED AND WILL BE COMMITTED UNLESS RESTRAINED OR HAVE
BEEN COMMITTED AND WILL BE CONTINUED UNLESS RESTRAINED" AND THAT NO
INJUNCTION "SHALL BE ISSUED ON ACCOUNT OF ANY THREAT OR UNLAWFUL ACT
EXCEPTING AGAINST THE PERSON OR PERSONS, ASSOCIATION, OR ORGANIZATION
MAKING THE THREAT OR COMMITTING THE UNLAWFUL ACT OR ACTUALLY
AUTHORIZING OR RATIFYING THE SAME  ..."  BY SUBSECTIONS (B) TO (E) IT
IS PROVIDED THAT RELIEF SHALL NOT BE GRANTED UNLESS THE COURT FINDS
THAT SUBSTANTIAL AND IRREPARABLE INJURY TO COMPLAINANTS' PROPERTY WILL
FOLLOW; THAT AS TO EACH ITEM OF RELIEF GRANTED GREATER INJURY WILL BE
INFLICTED UPON THE COMPLAINANT BY DENYING THE RELIEF THAN WILL BE
INFLICTED UPON DEFENDANTS BY GRANTING IT; THAT COMPLAINANT HAS NO
ADEQUATE REMEDY AT LAW; AND THAT THE PUBLIC OFFICERS CHARGED WITH THE
DUTY TO PROTECT COMPLAINANTS' PROPERTY ARE UNABLE OR UNWILLING TO
PROVIDE ADEQUATE PROTECTION.  THERE CAN BE NO QUESTION OF THE POWER OF
CONGRESS THUS TO DEFINE AND LIMIT THE JURISDICTION OF THE INFERIOR
COURTS OF THE UNITED STATES.  FN11  THE DISTRICT COURT MADE NONE OF THE
REQUIRED FINDINGS SAVE AS TO IRREPARABLE INJURY AND LACK OF REMEDY AT
LAW.  IT FOLLOWS THAT IN ISSUING THE INJUNCTION IT EXCEEDED ITS
JURISDICTION. 

FOURTH.  THE COURT OF APPEALS ERRED IN HOLDING THAT THE DECLARATIONS
OF POLICY IN THE NORRIS-LAGUARDIA ACT AND THE WISCONSIN LABOR CODE TO
THE EFFECT THAT EMPLOYEES ARE TO HAVE FULL FREEDOM OF ASSOCIATION, SELF
ORGANIZATION, AND DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING,
FREE FROM INTERFERENCE, RESTRAINT OR COERCION OF THEIR EMPLOYERS, PUTS
THIS CASE OUTSIDE THE SCOPE OF BOTH ACTS SINCE RESPONDENT CANNOT ACCEDE
TO THE PETITIONER'S DEMANDS UPON IT WITHOUT DISREGARDING THE POLICY
DECLARED BY THE STATUTES.  THIS VIEW WAS EXPRESSED IN THE COURT'S FIRST
OPINION ON THE APPEAL FROM THE ISSUE OF AN INTERLOCUTORY INJUNCTION,
FN12  AND THE OPINION ON THE APPEAL FROM THE FINAL ORDER ADOPTS WHAT
WAS SAID ON THE EARLIER APPEAL AS THE LAW OF THE CASE.  WE FIND NOTHING
IN THE DECLARATIONS OF POLICY WHICH NARROWS THE DEFINITION OF A LABOR
DISPUTE AS FOUND IN THE STATUTES.  THE RIGHTS OF THE PARTIES AND THE
JURISDICTION OF THE FEDERAL COURTS ARE TO BE DETERMINED ACCORDING TO
THE EXPRESS PROVISIONS APPLICABLE TO LABOR DISPUTES AS SO DEFINED. 

FIFTH.  SINCE THE COURTS BELOW WERE OF OPINION THAT A LABOR DISPUTE,
AS DEFINED BY STATE AND FEDERAL STATUTES, HAD NOT BEEN SHOWN, THEY DID
NOT PASS ON THE QUESTIONS OF THE LEGALITY, UNDER THE WISCONSIN LAW, OF
THE ACTS CHARGED TO HAVE BEEN DONE BY THE PETITIONERS OR THE
CONSTITUTIONALITY OF THAT LAW IN LEGALIZING ANY OF SUCH ACTS.  AS THE
CASE MUST GO BACK FOR FURTHER PROCEEDINGS, WE EXPRESS NO OPINION UPON
THESE QUESTIONS. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.   REVERSED. 

FN1  LAUF V. SHINNER & CO., 82 F.(2D) 68. 

FN2  90 F.(2D) 250. 

FN3  WISCONSIN STATUTES, 1937, C. 103, SEC. 103.62. 

FN4  SENN V. TILE LAYERS UNION, SUPRA, P. 477. 

FN5  AMERICAN FURNITURE CO. V. CHAUFFEURS, TEAMSTERS & HELPERS UNION,
222 WIS. 338, 268 N.W. 250.  SEE, ALSO, SENN V. TILE LAYERS UNION,
SUPRA. 

FN6  WISCONSIN STATUTES, 1937, C. 103, SEC. 103.53. 

FN7  SENN V. TILE LAYERS PROTECTIVE UNION, 222 WIS. 383, 400, 268
N.W. 270, 872; AMERICAN FURNITURE CO. V. CHAUFFEURS, TEAMSTERS &
HELPERS UNION, SUPRA. 

FN8  ACT OF MARCH 23, 1932, C. 90, 47 STAT. 70, U.S.C. TIT. 29, SEC.
101 ET SEQ. 

FN9  47 STAT. 73; U.S.C. TIT. 29, SEC. 113(C). 

FN10  47 STAT. 71; U.S.C. TIT. 29, SEC. 107. 

FN11  KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, 233-234. 

FN12  82 F.(2D) 68, 72-73. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BUTLER, DISSENTING. 

THE OPINION JUST ANNOUNCED REFLECTS FAITHFULLY THOUGH QUITE NAKEDLY
THE FINDINGS OF FACT.  THESE AND UNCONTRADICTED DETAILS DISCLOSE THE
CIRCUMSTANTIAL BASIS OF THE SUIT.  LOCAL NO. 73 IS AN UNINCORPORATED
LABOR UNION, NEVER IN ANY WAY RELATED TO RESPONDENT.  NONE OF ITS
EMPLOYEES IS A MEMBER OF THE UNION; ALL HAVE DEFINITELY REJECTED THE
SUGGESTION THAT THEY JOIN IT.  IN EVERY LEGAL SENSE, THE UNION IS A
STRANGER BOTH TO RESPONDENT AND ITS EMPLOYEES.  SHORTLY BEFORE
PETITIONERS CONSPIRED TO DESTROY RESPONDENT'S BUSINESS, ONE JOYCE, OF
THE AMERICAN FEDERATION OF LABOR, CALLED BY TELEPHONE RESPONDENT'S VICE
PRESIDENT, RUSSELL, AT HIS CHICAGO OFFICE.  THE LATTER'S UNCONTRADICTED
NARRATION OF THE CONVERSATION FOLLOWS:  "MR. JOYCE  ...  SAID 'WE ARE
IN MILWAUKEE AND WANT YOU FELLOWS TO JOIN OUR UNION UP THERE.  THEY
TELL ME UP THERE YOU ARE THE MAN I MUST SEE, TO GET A CONTRACT SIGNED
FOR SHINNER & COMPANY WITH THE BUTCHERS UNION UP THERE.'  I TOLD HIM I
COULD NOT SIGN ANY CONTRACT WITH HIM, THAT OUR MEN HAD THEIR OWN
ASSOCIATION AND WERE PERFECTLY WELL SATISFIED, AND DIDN'T WANT TO
BELONG TO ANY OTHER UNION.  HE SAID 'WELL, I AM GOING THERE TONIGHT AND
IF YOU DON'T JOIN, I WILL DECLARE WAR ON YOU.'  I SAID 'THERE IS
NOTHING I CAN DO ABOUT IT.'  HE SAID 'ALL RIGHT, THE WAR IS ON, AND MAY
THE BEST MAN WIN,' AND HE HUNG UP."    THEN FOLLOWED A DEMAND BY THE
UNION THAT RESPONDENT COMPEL ITS EMPLOYEES, ON PAIN OF DISMISSAL FROM
THEIR EMPLOYMENT, TO JOIN THE UNION AND CONSTITUTE IT THEIR BARGAINING
REPRESENTATIVE AND AGENT.  RESPONDENT RIGHTLY DECLINED TO UNDERTAKE ANY
SUCH INTERFERENCE WITH THE LIBERTY OF ITS EMPLOYEES, BUT INFORMED THEM
THAT THEY WERE FREE TO DO AS THEY SAW FIT.  IT LEFT THEM WHOLLY FREE TO
JOIN OR NOT TO JOIN THE UNION; THE UNION WAS LEFT FREE TO INVITE, URGE,
PERSUADE OR INDUCE THEM TO JOIN.  EVERY ONE WHO RESPECTS THE LAWFUL
EXERCISE OF INDIVIDUAL LIBERTY OF ACTION MUST REGARD THE ATTITUDE OF
THE RESPONDENT AS BEING ABOVE CRITICISM AND BEYOND REPROACH.  THE
OPINION OF THE COURT JUST ANNOUNCED DOES NOT SUGGEST A CONTRARY VIEW. 

UNDER THESE CIRCUMSTANCES, THE UNION, IN ORDER TO FORCE RESPONDENT TO
COERCE ITS EMPLOYEES, AND IN PURSUANCE OF A CONSPIRACY TO THAT END,
PUBLICLY AND FALSELY ACCUSED RESPONDENT OF BEING UNFAIR TO LABOR IN
DEALING WITH ITS EMPLOYEES; AND BY MEANS OF FALSE PLACARDS AND BANNERS
AND BY PICKETING, MOLESTATION, ANNOYANCE, THREATS AND INTIMIDATION IT
PREVENTED, AND WHEN THIS SUIT WAS BROUGHT WAS CONTINUING TO PREVENT,
PATRONS AND PROSPECTIVE PATRONS FROM DEALING WITH RESPONDENT - ALL TO
THE LATTER'S SERIOUS AND IRREPARABLE INJURY. 

1.  RESPONDENT'S BUSINESS CONSTITUTES A PROPERTY RIGHT; AND THE FREE
OPPORTUNITY OF RESPONDENT AND ITS CUSTOMERS TO DEAL WITH ONE ANOTHER IN
THAT BUSINESS IS AN INCIDENT INSEPARABLE THEREFROM.  IT IS HARD TO
IMAGINE A CASE WHICH MORE CLEARLY CALLS FOR EQUITABLE RELIEF; AND THE
COURT BELOW RIGHTLY GRANTED AN INJUNCTION.  TRUAX V. CORRIGAN, 257 U.S.
312, 327, AND CASES CITED. 

BUT HERE IT IS HELD THAT THE DECREE CONFLICTS WITH THE NORRIS
LAGUARDIA ACT.  THAT THE ACTION DEMANDED BY PETITIONERS OF RESPONDENT
WITH RESPECT TO ITS EMPLOYEES, IF TAKEN, WOULD HAVE BEEN MORALLY
INDEFENSIBLE IS PLAIN; THAT IT WOULD HAVE BEEN AGAINST THE DECLARED
POLICY OF THE ACT IS EQUALLY PLAIN.  THAT ACT, 29 U.S.C., SEC. 102,
FN1  DECLARES THAT UNDER PREVAILING CONDITIONS, THE INDIVIDUAL
UNORGANIZED WORKER, "THOUGH HE SHOULD BE FREE TO DECLINE TO ASSOCIATE
WITH HIS FELLOW WORKERS" SHOULD "HAVE FULL FREEDOM OF ASSOCIATION, SELF
ORGANIZATION, AND DESIGNATION OF REPRESENTATIVES OF HIS OWN CHOOSING,"
AND SHOULD "BE FREE FROM THE INTERFERENCE, RESTRAINT, OR COERCION OF
EMPLOYERS OF LABOR, OR THEIR AGENTS, IN THE DESIGNATION OF SUCH
REPRESENTATIVES," ETC.  THIS DECLARATION OF POLICY, AS THE INTRODUCTORY
CLAUSE PLAINLY RECITES, WAS INTENDED AS AN AID "IN THE INTERPRETATION"
OF THE ACT AND "IN DETERMINING THE JURISDICTION AND AUTHORITY OF THE
COURTS" UNDER THE ACT.  IF RESPONDENT HAD JOINED THE CONSPIRACY AND
YIELDED TO THE DEMAND OF THE UNION ITS ACTION AS AN EMPLOYER OF LABOR
UNQUESTIONABLY WOULD HAVE CONSTITUTED AN "INTERFERENCE, RESTRAINT, OR
COERCION" OF ITS EMPLOYEES IN THE DESIGNATION OF THEIR REPRESENTATIVES,
IN THE TEETH OF THE DECLARED POLICY OF THE ACT. 

THE OPINION OF THE COURT ASSERTS, HOWEVER, THAT THIS DEFINITE
DECLARATION OF POLICY IN NO WAY NARROWS THE DEFINITION OF THE PHRASE
"LABOR DISPUTE" FOUND IN SUBSTANTIVE PROVISIONS OF THE ACT.  BUT THAT
STATEMENT CANNOT BE INTENDED TO SUGGEST THAT THE DECLARATION OF POLICY
DOES NOT AFFECT THE MEANING AND APPLICATION OF THE WORDS USED, FOR THE
OPENING CLAUSE OF THAT DECLARATION IS PRECISELY TO THE CONTRARY. 
WHETHER A LABOR DISPUTE EXISTS IN A GIVEN CASE DEPENDS UPON THE FACTS;
AND IN EACH CASE THE PHRASE "LABOR DISPUTE" IS TO BE INTERPRETED IN
HARMONY WITH THE DECLARED POLICY OF THE ACT.  THAT IS THE CONGRESSIONAL
MANDATE AND COURTS ARE REQUIRED TO OBSERVE IT.  IN OZAWA V. UNITED
STATES, 260 U.S. 178, 194, WE SAID "IT IS THE DUTY OF THIS COURT TO
GIVE EFFECT TO THE INTENT OF CONGRESS.  PRIMARILY THIS INTENT IS
ASCERTAINED BY GIVING THE WORDS THEIR NATURAL SIGNIFICANCE, BUT IF THIS
LEADS TO AN UNREASONABLE RESULT PLAINLY AT VARIANCE WITH THE POLICY OF
THE LEGISLATION AS A WHOLE, WE MUST EXAMINE THE MATTER FURTHER.  WE MAY
THEN LOOK TO THE REASON OF THE ENACTMENT AND INQUIRE INTO ITS
ANTECEDENT HISTORY AND GIVE IT EFFECT IN ACCORDANCE WITH ITS DESIGN AND
PURPOSE, SACRIFICING, IF NECESSARY, THE LITERAL MEANING IN ORDER THAT
THE PURPOSE MAY NOT FAIL."  SEE ALSO TO THE SAME EFFECT, HEYDENFELDT V.
DANEY GOLD & S.M. CO., 93 U.S. 634, 638; HOLY TRINITY CHURCH V. UNITED
STATES, 143 U.S. 457, 459 ET SEQ.; FLEISCHMANN CONSTRUCTION CO. V.
UNITED STATES, 270 U.S. 349, 360; KARNUTH V. UNITED STATES, 279 U.S.
231, 243.  THE PRINCIPLE APPLIES HERE WITH PECULIAR FORCE; FOR IT IS AN
UNNATURAL ASSUMPTION TO SUPPOSE THAT CONGRESS INTENDED BY GENERAL
DEFINITION OF THE FLEXIBLE TERM "LABOR DISPUTE" TO ANNUL ITS OWN VERY
EXPLICIT DECLARATION IN RESPECT TO THE POLICY TO BE OBSERVED BY THE
COURTS IN THE ADMINISTRATION OF THE ACT. 

THE DECISION JUST ANNOUNCED IGNORES THE DECLARED POLICY OF CONGRESS
THAT THE WORKER SHOULD BE FREE TO DECLINE ASSOCIATION WITH HIS FELLOWS,
THAT HE SHOULD HAVE FULL FREEDOM IN THAT RESPECT AND IN THE DESIGNATION
OF REPRESENTATIVES, AND ESPECIALLY THAT HE SHOULD BE FREE FROM
INTERFERENCE, RESTRAINT, OR COERCION OF EMPLOYERS.  TO SAY THAT A
"LABOR DISPUTE" IS CREATED BY THE MERE REFUSAL OF RESPONDENT TO COMPLY
WITH THE DEMAND THAT IT COMPEL ITS EMPLOYEES TO DESIGNATE THE UNION AS
THEIR REPRESENTATIVE UNMISTAKABLY SUBVERTS THIS POLICY AND CONSEQUENTLY
PUTS A CONSTRUCTION UPON THE WORDS CONTRARY TO THE MANIFEST
CONGRESSIONAL INTENT. 

MOREOVER, THE IMMEDIATELY PRECEDING SECTION OF THE ACT, 29 U.S.C.,
SEC. 101,  FN2  PROVIDES THAT NO RESTRAINING ORDER OR INJUNCTION IN A
CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE SHALL ISSUE "CONTRARY
TO THE PUBLIC POLICY DECLARED IN THIS CHAPTER."  SECTIONS 101 AND 102
TAKEN TOGETHER CONSTITUTE NOTHING LESS THAN AN EXPRESSION OF THE
LEGISLATIVE WILL THAT THE COURT SHALL ENFORCE THE PUBLIC POLICY SET
FORTH IN SEC. 102 AND SHALL HAVE REGARD THERETO IN REACHING A
DETERMINATION AS TO WHETHER IT HAS JURISDICTION TO ISSUE AN INJUNCTION
IN ANY PARTICULAR CASE.  SINCE THE WHOLE AIM OF THE INJURY HERE
INFLICTED AND THREATENED TO BE INFLICTED BY THE UNION WAS TO COMPEL
RESPONDENT TO INFLUENCE AND COERCE ITS EMPLOYEES IN THE DESIGNATION OF
THEIR REPRESENTATIVES, THE ACTS OF THE UNION WERE IN PLAIN DEFIANCE OF
THE DECLARED POLICY OF CONGRESS, AND FIND NO SUPPORT IN ITS SUBSTANTIVE
PROVISIONS. 

2.  BUT PUTTING ASIDE THE CONGRESSIONAL DECLARATION OF POLICY AS AN
INDICATION OF MEANING, AND CONSIDERING THE PHRASE ENTIRELY APART, THE
FACTS OF THIS CASE PLAINLY DO NOT CONSTITUTE A "LABOR DISPUTE" AS
DEFINED BY THE ACT.  UNDOUBTEDLY "DISPUTE" IS USED IN ITS PRIMARY SENSE
AS MEANING A VERBAL CONTROVERSY INVOLVING AN EXPRESSION OF OPPOSING
VIEWS OR CLAIMS.  THE ACT ITSELF, 29 U.S.C., SEC. 113(C), SO REGARDS
IT:  "THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING
TERMS OR CONDITIONS OF EMPLOYMENT," ETC.  IN THIS CASE, THERE WAS NO
INTERCHANGE OR CONSIDERATION OF CONFLICTING VIEWS IN RESPECT OF THE
SETTLEMENT OF A CONTROVERSIAL PROBLEM.  THERE WAS SIMPLY AN OVERBEARING
DEMAND BY THE UNION THAT RESPONDENT SHOULD DO AN UNLAWFUL THING AND A
NATURAL REFUSAL ON ITS PART TO COMPLY.  IF A DEMAND BY A LABOR UNION
THAT AN EMPLOYER COMPEL ITS EMPLOYEES TO SUBMIT TO THE WILL OF THE
UNION, AND THE EMPLOYER'S REFUSAL, CONSTITUTE A LABOR CONTROVERSY, THE
HIGHWAYMAN'S DEMAND FOR THE MONEY OF HIS VICTIM AND THE LATTER'S
REFUSAL TO STAND AND DELIVER CONSTITUTE A FINANCIAL CONTROVERSY. 

THERE BEING AN UTTER LACK OF CONNECTION BETWEEN THE PETITIONERS AND
RESPONDENT OR ITS EMPLOYEES, THE UNION WAS AN INTRUDER INTO THE AFFAIRS
OF THE EMPLOYER AND ITS EMPLOYEES.  THE UNION HAD THE RIGHT TO TRY TO
PERSUADE THE EMPLOYEES TO JOIN ITS ORGANIZATION; BUT PERSUASIVE METHODS
FAILING, ITS RIGHT UNDER THE LAW IN ANY MANNER TO INTERMEDDLE CAME TO
AN END.  IT LAWFULLY COULD NOT COERCE THE EMPLOYEES TO ABANDON THEIR
OWN ORGANIZATION AND TO JOIN LOCAL NO. 73 ANY MORE THAN THE EMPLOYEES
COULD COERCE THE UNION TO DISBAND AND ITS MEMBERS TO JOIN THEIR
ORGANIZATION.  OTHERWISE, THE WORKER WOULD NOT "BE FREE," AS THE ACT
REQUIRES, "TO DECLINE TO ASSOCIATE WITH HIS FELLOWS"; NOR WOULD HE HAVE
"FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION AND DESIGNATION OF
REPRESENTATIVES OF HIS OWN CHOOSING."  CLEARLY THE UNION COULD NOT BE
AUTHORIZED BY STATUTE TO RESORT TO COERCIVE MEASURES DIRECTLY AGAINST
THE EMPLOYEES TO COMPEL SUBMISSION TO ITS WISHES, FOR THAT WOULD BE TO
GIVE ONE GROUP OF WORKMEN AUTOCRATIC POWER OF CONTROL IN RESPECT OF THE
LIBERTIES OF ANOTHER GROUP, IN CONTRAVENTION OF THE FIFTH AMENDMENT AS
WELL AS OF THE POLICY OF CONGRESS EXPRESSLY DECLARED IN THIS ACT.  AND
THAT BEING TRUE, THE ATTEMPT TO COERCE SUBMISSION THROUGH CONSTRAINED
INTERFERENCE OF THE EMPLOYER WAS EQUALLY UNLAWFUL. 

SO FAR AS CONCERNS THE QUESTION HERE INVOLVED, THE PHRASE "LABOR
DISPUTE" IS THE BASIC ELEMENT OF THE ACT.  FOR UNLESS THERE WAS SUCH A
DISPUTE - THAT IS TO SAY, A "CONTROVERSY" - THE ACT DOES NOT EVEN
PURPORT TO LIMIT THE DISTRICT COURT'S JURISDICTION IN EQUITY.  THE
PHRASE MUST RECEIVE A SENSIBLE CONSTRUCTION IN HARMONY WITH THE
CONGRESSIONAL INTENT AND POLICY.  THERE CAN BE NO DISPUTE WITHOUT
DISPUTANTS.  BETWEEN WHOM WAS THERE A DISPUTE HERE?  THERE WAS NONE
BETWEEN THE UNION AND RESPONDENT'S EMPLOYEES; FOR THE LATTER WERE
CONSIDERED BY THE UNION MERE PAWNS TO BE MOVED ACCORDING TO THE
ARBITRARY WILL OF THE UNION.  THERE WAS NONE BETWEEN RESPONDENT AND ITS
EMPLOYEES; FOR THEY WERE IN FULL ACCORD.  AND FINALLY THERE WAS NONE
BETWEEN THE UNION AND RESPONDENT; FOR IT WOULD BE UTTERLY UNREASONABLE
TO SUPPOSE CONGRESS INTENDED THAT THE REFUSAL OF A CONSCIENTIOUS
EMPLOYER TO TRANSGRESS THE EXPRESS POLICY OF THE LAW SHOULD CONSTITUTE
A "LABOR DISPUTE" HAVING THE EFFECT OF BRINGING TO NAUGHT NOT ONLY THE
POLICY OF THE LAW, BUT THE OBLIGATION OF A COURT OF EQUITY TO RESPECT
IT AND TO RESTRAIN A CONTINUING AND DESTRUCTIVE ASSAULT UPON THE
PROPERTY RIGHTS OF THE EMPLOYER, AS TO WHICH NO ADEQUATE REMEDY AT LAW
EXISTED. 

3.  AS TO WHAT CONSTITUTES A "LABOR DISPUTE" WITHIN THE MEANING OF
THE WISCONSIN STATUTE, THE INTERPRETATION PUT UPON IT BY THE HIGHEST
COURT OF THAT STATE IS BINDING HERE.  KNIGHTS OF PYTHIAS V. MEYER, 265
U.S. 30, 32.  MOREHEAD V. NEW YORK EX REL. TIPALDO, 298 U.S. 587, 609. 
BUT THIS COURT AUTHORITATIVELY DECLARES THE MEANING OF ACTS OF CONGRESS
AND IS REQUIRED TO DECIDE FOR ITSELF WHAT CONSTITUTES A "LABOR
DISPUTE," WHICH, WITHIN THE MEANING OF THE NORRIS-LAGUARDIA ACT, WILL
HAVE THE EFFECT OF ABRIDGING THE JURISDICTION OF A FEDERAL COURT. 

THE THINGS HERE FOUND TO HAVE BEEN DONE FOR THE PURPOSE OF COERCING
RESPONDENT TO COMPEL ITS EMPLOYEES TO JOIN THE UNION ARE NOT DECLARED
LAWFUL BY THE WISCONSIN STATUTE OR BY THE COURTS OF THAT STATE.  CF.
AMERICAN FURNITURE CO. V. CHAUFFEURS, T. & H. UNION, 222 WIS. 338; 268
N.W. 250; SENN V. TILE LAYERS PROTECTIVE UNION, 222 WIS. 383; 268 N.W.
270, 872.  WHILE THIS COURT REFRAINS FROM CONDEMNING THE MEANS EMPLOYED
BY PETITIONERS, THE OPINION CONTAINS NOTHING TO SUGGEST THAT THEIR
CONDUCT WAS NOT WRONGFUL AND UNLAWFUL.  THE PUBLICITY AND PEACEFUL
PICKETING DECLARED LEGAL BY WISCONSIN LAWS ARE UTTERLY UNLIKE THE
DISPLAY OF LIBELOUS SIGNS, PARADE OF PICKETS, FALSE ACCUSATIONS,
MOLESTATION, THREATS AND INTIMIDATION EMPLOYED BY THE UNION, NOT ON
BEHALF OF FORMER OR PRESENT EMPLOYEES OF RESPONDENT, BUT TO DESTROY THE
BUSINESS OF RESPONDENT.  HERE, BY MEANS EVERYWHERE HELD TO BE UNLAWFUL,
THE UNION CARRIED ON AND WAS CONTINUING TO CARRY ON A CAMPAIGN OF
DESTRUCTION IN ORDER TO COERCE RESPONDENT TO DEPRIVE ITS EMPLOYEES OF
THEIR RIGHT OF FREEDOM OF ASSOCIATION, SELF-ORGANIZATION AND
DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING.  THAT THE
WISCONSIN STATUTE DOES NOT ATTEMPT TO MAKE LAWFUL THE MEANS EMPLOYED BY
THE UNION TO IMPOSE ITS WILL UPON RESPONDENT AND ITS EMPLOYEES CLEARLY
APPEARS FROM THIS COURT'S PORTRAYAL OF THAT LAW IN SENN V. TILE LAYERS
UNION, 301 U.S. 468. 

THE OPINION IN THAT CASE STATES (P. 478):  "THE JUDGMENT OF THE
HIGHEST COURT OF THE STATE ESTABLISHES THAT BOTH THE MEANS EMPLOYED AND
THE END SOUGHT BY THE UNIONS ARE LEGAL UNDER ITS LAW ...  THE
LEGISLATURE OF WISCONSIN HAS DECLARED THAT 'PEACEFUL PICKETING AND
PATROLLING' ON THE PUBLIC STREETS AND PLACES SHALL BE PERMISSIBLE
'WHETHER ENGAGED IN SINGLY OR IN NUMBERS' PROVIDED THIS IS DONE
'WITHOUT INTIMIDATION OR COERCION' AND FREE FROM 'FRAUD, VIOLENCE,
BREACH OF THE PEACE OR THREAT THEREOF.'  THE STATUTE PROVIDES THAT THE
PICKETING MUST BE PEACEFUL; AND THAT TERM AS USED IMPLIES NOT ONLY
ABSENCE OF VIOLENCE BUT ABSENCE OF ANY UNLAWFUL ACT.  IT PRECLUDES THE
INTIMIDATION OF CUSTOMERS.  IT PRECLUDES ANY FORM OF PHYSICAL
OBSTRUCTION OR INTERFERENCE WITH THE PLAINTIFF'S BUSINESS.  IT
AUTHORIZES GIVING PUBLICITY TO THE EXISTENCE OF THE DISPUTE 'WHETHER BY
ADVERTISING, PATROLLING ANY PUBLIC STREETS OR PLACES WHERE ANY PERSON
OR PERSONS MAY LAWFULLY BE'; BUT PRECLUDES MISREPRESENTATION OF THE
FACTS OF THE CONTROVERSY.  AND IT DECLARES THAT 'NOTHING HEREIN SHALL
BE CONSTRUED TO LEGALIZE A SECONDARY BOYCOTT.'  ...  INHERENTLY, THE
MEANS AUTHORIZED ARE CLEARLY UNOBJECTIONABLE.  IN DECLARING SUCH
PICKETING PERMISSIBLE WISCONSIN HAS PUT THIS MEANS OF PUBLICITY ON A
PAR WITH ADVERTISEMENTS IN THE PRESS....  THE PICKETING WAS PEACEFUL. 
THE PUBLICITY DID NOT INVOLVE A MISREPRESENTATION OF FACT; NOR WAS ANY
CLAIM MADE BELOW THAT RELEVANT FACTS WERE SUPPRESSED." 

THE STATE STATUTE, DEFINING "LABOR DISPUTES" AND DECLARING THE MEANS
THAT LAWFULLY MAY BE USED AGAINST EMPLOYERS IN SUCH CONTROVERSIES, DOES
NOT PURPORT TO MAKE LAWFUL EITHER THE END HERE SOUGHT BY PETITIONERS OR
THE MEANS THEY EMPLOYED TO ATTAIN IT.  THEIR PURPOSE WAS NOT
UNIONIZATION OF RESPONDENT'S EMPLOYEES, FOR THEY ALREADY BELONGED TO A
LABOR ORGANIZATION OF THEIR OWN CHOOSING.  THE PURPOSE WAS TO COERCE
THE EMPLOYEES TO JOIN A PARTICULAR ORGANIZATION WHICH THEY HAD ALREADY
REPUDIATED.  THERE IS NOTHING IN THE STATE OR FEDERAL STATUTES THAT
PURPORTS TO GIVE LABOR UNIONS OR INDIVIDUALS SO CONTRIVING THE STATUS
OF PARTY TO A "LABOR DISPUTE."  COERCION OF EMPLOYEES TO SURRENDER
THEIR FREEDOM OF SELF-ORGANIZATION IS REPUGNANT TO BOTH STATUTES.  WIS.
STATS., 1937, SEC. 103.51.  29 U.S.C. SECS. 101, 102.  CF. AMERICAN
FURNITURE CO. V. CHAUFFEURS, T. & H. UNION, 222 WIS. 338; 268 N.W. 250;
SENN V. TILE LAYERS PROTECTIVE UNION, 222 WIS. 383; 268 N.W. 270, 872;
SENN V. TILE LAYERS UNION, 301 U.S. 468.  THERE IS NO GROUND UPON WHICH
PETITIONERS' PURPOSE IN THIS CASE OR THE MEANS EMPLOYED TO ACCOMPLISH
IT CAN BE SUPPORTED AS LAWFUL. 

4.  THE CASE IS A SIMPLE ONE.  RESPONDENT'S EMPLOYEES HAD NO
CONNECTION WITH THE UNION, AND WERE UNWILLING TO HAVE ANY.  THE UNION,
BEING UNABLE TO PERSUADE THE EMPLOYEES TO ASSENT TO ITS WISHES IN THAT
REGARD, UNDERTOOK TO SUBJUGATE THEM TO ITS WILL BY COERCING AN UNLAWFUL
INTERFERENCE WITH THEIR FREEDOM OF ACTION ON THE PART OF THE EMPLOYER. 
IF THAT IS A "LABOR DISPUTE," DESTRUCTIVE OF THE HISTORICAL POWER OF
EQUITY TO INTERVENE, THEN THE NORRIS-LAGUARDIA ACT ATTEMPTS TO LEGALIZE
AN ARBITRARY AND ALIEN STATE OF AFFAIRS WHOLLY AT VARIANCE WITH THOSE
PRINCIPLES OF CONSTITUTIONAL LIBERTY BY WHICH THE EXERCISE OF DESPOTIC
POWER HITHERTO HAS BEEN CURBED.  AND NOTHING IS PLAINER UNDER OUR
DECISIONS THAN THAT IF THE ACT DOES THAT, ITS EFFECT WILL BE TO DEPRIVE
THE RESPONDENT OF ITS PROPERTY AND BUSINESS WITHOUT DUE PROCESS OF LAW,
IN CONTRAVENTION OF THE FIFTH AMENDMENT.  TRUAX V. CORRIGAN, SUPRA, 327
328. 

I AM OF OPINION THAT THE CIRCUIT COURT OF APPEALS RIGHTLY HELD THAT
THIS CASE DISCLOSES NO "LABOR DISPUTE" WITHIN THE MEANING OF THE NORRIS
LAGUARDIA ACT; THAT THE UNION'S COERCIVE ATTACK UPON RESPONDENT WAS
UNLAWFUL UNDER STATE LAW AND IN VIOLATION OF THE POLICY DECLARED BY THE
FEDERAL STATUTE, AND WAS PROPERLY ENJOINED; AND THAT, THERE BEING NO
"LABOR DISPUTE" AS DEFINED BY THAT ACT, ITS PROVISIONS AS TO
ALLEGATIONS, PROOF, AND FINDINGS DO NOT APPLY.  I WOULD AFFIRM THE
JUDGMENT. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 

FN1  SECTION 2 OF THE ACT OF MARCH 23, 1932, 47 STAT. 70, 29 U.S.C.
SEC. 102: 

"PUBLIC POLICY IN LABOR MATTERS DECLARED.  IN THE INTERPRETATION OF
THIS CHAPTER AND IN DETERMINING THE JURISDICTION AND AUTHORITY OF THE
COURTS OF THE UNITED STATES, AS SUCH JURISDICTION AND AUTHORITY ARE
DEFINED AND LIMITED IN THIS CHAPTER, THE PUBLIC POLICY OF THE UNITED
STATES IS HEREBY DECLARED AS FOLLOWS: 

"WHEREAS UNDER PREVAILING ECONOMIC CONDITIONS, DEVELOPED WITH THE AID
OF GOVERNMENTAL AUTHORITY FOR OWNERS OF PROPERTY TO ORGANIZE IN THE
CORPORATE AND OTHER FORMS OF OWNERSHIP ASSOCIATION, THE INDIVIDUAL
UNORGANIZED WORKER IS COMMONLY HELPLESS TO EXERCISE ACTUAL LIBERTY OF
CONTRACT AND TO PROTECT HIS FREEDOM OF LABOR, AND THEREBY TO OBTAIN
ACCEPTABLE TERMS AND CONDITIONS OF EMPLOYMENT, WHEREFORE, THOUGH HE
SHOULD BE FREE TO DECLINE TO ASSOCIATE WITH HIS FELLOWS, IT IS
NECESSARY THAT HE HAVE FULL FREEDOM OF ASSOCIATION, SELF-ORGANIZATION,
AND DESIGNATION OF REPRESENTATIVES OF HIS OWN CHOOSING, TO NEGOTIATE
THE TERMS AND CONDITIONS OF HIS EMPLOYMENT, AND THAT HE SHALL BE FREE
FROM THE INTERFERENCE, RESTRAINT, OR COERCION OF EMPLOYERS OF LABOR, OR
THEIR AGENTS, IN THE DESIGNATION OF SUCH REPRESENTATIVES OR IN SELF
ORGANIZATION OR IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION; THEREFORE, THE
FOLLOWING DEFINITIONS OF AND LIMITATIONS UPON THE JURISDICTION AND
AUTHORITY OF THE COURTS OF THE UNITED STATES ARE HEREBY ENACTED." 

FN2  SECTION 1 OF THE ACT OF MARCH 23, 1932, 47 STAT. 70, 29 U.S.C.
SEC. 101: 

"ISSUANCE OF RESTRAINING ORDERS AND INJUNCTIONS; LIMITATION; PUBLIC
POLICY.  NO COURT OF THE UNITED STATES, AS DEFINED IN THIS CHAPTER,
SHALL HAVE JURISDICTION TO ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR
PERMANENT INJUNCTION IN A CASE INVOLVING OR GROWING OUT OF A LABOR
DISPUTE, EXCEPT IN A STRICT CONFORMITY WITH THE PROVISIONS OF THIS
CHAPTER; NOR SHALL ANY SUCH RESTRAINING ORDER OR TEMPORARY OR PERMANENT
INJUNCTION BE ISSUED CONTRARY TO THE PUBLIC POLICY DECLARED IN THIS
CHAPTER." 
..END :








UNITED STATES V. PATRYAS, 303 U.S. 341 


NO. 445.  ARGUED FEBRUARY 11, 1938.  - DECIDED FEBRUARY 28, 1938.  - 90
F.2D 715, AFFIRMED. 


UNDER SEC. 307 OF THE WORLD WAR VETERANS ACT, AS AMENDED JULY 3, 1930,
A CLAIM FOR TOTAL PERMANENT DISABILITY ON A REINSTATED AND CONVERTED
WAR RISK POLICY CAN NOT BE CONTESTED UPON THE BARE GROUND THAT THE
TOTAL AND PERMANENT DISABILITY EXISTED BEFORE THE INSURANCE WAS
REINSTATED.  P. 342. 

OR CONVERTED SHALL BE INCONTESTABLE FROM THE DATE OF ISSUANCE,
REINSTATEMENT, OR CONVERSION, EXCEPT FOR FRAUD, NONPAYMENT OF PREMIUMS,
OR ON THE GROUND THAT THE APPLICANT WAS NOT A MEMBER OF THE MILITARY OR
NAVAL FORCES OF THE UNITED STATES." 

THE CONVERTED POLICY SUED ON PROMISED TO PAY IN THE EVENT OF TOTAL,
PERMANENT DISABILITY, UPON DUE PROOF OF SUCH DISABILITY "WHILE THIS
POLICY IS IN FORCE."  UNLIKE ORIGINAL POLICIES ISSUED UNDER THE WAR
RISK ACT, IT CONTAINED NO CLAUSE EXPRESSLY EXCLUDING LIABILITY FOR
TOTAL, PERMANENT DISABILITY INCURRED BEFORE THE POLICY WAS APPLIED
FOR. 

UNITED STATES V. PATRYAS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 302 U.S. 676, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED AGAINST THE GOVERNMENT ON A VETERAN'S POLICY OF INSURANCE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

JANUARY 31, 1918, STANLEY J. PATRYAS (RESPONDENT), THEN A SOLDIER,
PURCHASED FROM THE GOVERNMENT A $10,000 YEARLY RENEWABLE WAR RISK
INSURANCE CONTRACT WHICH HE PERMITTED TO LAPSE AFTER HIS HONORABLE
DISCHARGE FROM THE ARMY, JULY 29, 1919.  JUNE 28, 1927, WHILE A PATIENT
AT A VETERANS' GOVERNMENT HOSPITAL, HE OBTAINED REINSTATEMENT OF HIS
WAR RISK POLICY AND IMMEDIATELY CONVERTED IT INTO A FIVE YEAR RENEWABLE
TERM POLICY UPON WHICH HE PAID PREMIUMS TO JUNE 1932.  CLAIMING TOTAL
PERMANENT DISABILITY, THE VETERAN OBTAINED, IN THE DISTRICT COURT, A
VERDICT AND JUDGMENT ON HIS REINSTATED POLICY.  FINDING THE ISSUES FOR
THE VETERAN, THE JURY FIXED THE DATE OF PERMANENT TOTAL DISABILITY AT
1924 - A DATE THREE YEARS BEFORE HIS POLICY WAS REINSTATED. 

THE COURT OF APPEALS AFFIRMED.  FN1 

THE GOVERNMENT'S RIGHT TO CONTEST THIS POLICY IS LIMITED BY THE
FOLLOWING STATUTORY PROVISION: FN2 

"...  POLICIES OF INSURANCE  ...  ISSUED, REINSTATED, OR CONVERTED
SHALL BE INCONTESTABLE FROM THE DATE OF ISSUANCE, REINSTATEMENT, OR
CONVERSION, EXCEPT FOR FRAUD, NONPAYMENT OF PREMIUMS, OR ON THE GROUND
THAT THE APPLICANT WAS NOT A MEMBER OF THE MILITARY OR NAVAL FORCES OF
THE UNITED STATES,  ..." 

THE QUESTION HERE IS: 

CAN THE GOVERNMENT, IN THE ABSENCE OF FRAUD OR BAD FAITH, "CONTEST"
AND DEFEAT PAYMENT OF TOTAL PERMANENT DISABILITY INSURANCE, SOLD TO A
WORLD WAR VETERAN, ON THE GROUND THAT THE VETERAN WAS TOTALLY AND
PERMANENTLY DISABLED BEFORE THE POLICY WAS REINSTATED AND CONVERTED? 

FIRST.  THE GOVERNMENT CONTENDS THAT "CONGRESS HAS NOT,  ...
AUTHORIZED  ...  INSURANCE BENEFITS FOR TOTAL, PERMANENT DISABILITY
EXISTING PRIOR TO ANY CONTRACT OF INSURANCE ON WHICH THE CLAIM IS
MADE." 

THE ORIGINAL WAR RISK INSURANCE ACT OF OCTOBER 6, 1917,  FN3
PROVIDED: 

"THAT IN ORDER TO GIVE EVERY COMMISSIONED OFFICER AND ENLISTED MAN
AND TO EVERY MEMBER OF THE ARMY NURSE CORPS (FEMALE) AND OF THE NAVY
NURSE CORPS (FEMALE) WHEN EMPLOYED IN ACTIVE SERVICE UNDER THE WAR
DEPARTMENT OR NAVY DEPARTMENT GREATER PROTECTION FOR THEMSELVES AND
THEIR DEPENDENTS ..., THE UNITED STATES, UPON APPLICATION TO THE BUREAU
AND WITHOUT MEDICAL EXAMINATION, SHALL GRANT INSURANCE AGAINST THE
DEATH OR TOTAL PERMANENT DISABILITY OF ANY SUCH PERSON  ..." 

THE WAR RISK INSURANCE ACT MUST BE CONSIDERED IN THE LIGHT OF ITS
PASSAGE DURING THE WAR, WHILE MEN AND WOMEN WERE BEING CALLED INTO WAR
SERVICE.  THIS REQUIRES RECOGNITION OF ITS GENEROUS AND LIBERAL PURPOSE
TO PROVIDE "GREATER PROTECTION FOR (SOLDIERS, SAILORS AND NURSES)  ...
AND THEIR DEPENDENTS."  FN4  ITS PASSAGE INDICATED CONGRESS
CONCLUSIVELY PRESUMED THAT EVERY PERSON, WHO HAD SUCCESSFULLY UNDERGONE
MENTAL AND PHYSICAL EXAMINATION FOR WAR SERVICE, WAS - WHEN INDUCTED
INTO SUCH SERVICE - INSURABLE AGAINST DEATH AND TOTAL PERMANENT
DISABILITY.  FN5  THE ACT COMMANDED THAT INSURANCE AGAINST DEATH AND
TOTAL PERMANENT DISABILITY BE GRANTED, WITHOUT MEDICAL EXAMINATION, TO
EVERY APPLICANT WHO HAD PREVIOUSLY BEEN EXAMINED AND ACCEPTED FOR WAR
SERVICE.  CONGRESS MANIFESTLY INTENDED BY THESE SWEEPING PROVISIONS
THAT POLICIES SHOULD BE GRANTED WITHOUT REGARD TO THE HEALTH OF
APPLICANTS AND SHOULD BE ENFORCEABLE OBLIGATIONS AGAINST THE
GOVERNMENT.  ANY OTHER CONSTRUCTION OF THIS BROAD, WAR TIME LEGISLATIVE
GRANT TO SOLDIERS, SAILORS AND NURSES WOULD TAKE AWAY THE BENEFITS
CONGRESS INTENDED THEM TO RECEIVE.  THE PROVISIONS OF THE WAR RISK
INSURANCE ACT ARE SUFFICIENTLY COMPREHENSIVE AND INCLUSIVE TO AUTHORIZE
ITS ADMINISTRATORS TO GRANT INSURANCE COVERING PAST OR FUTURE TOTAL
PERMANENT DISABILITY, IF SUCH ACTION IS FOUND NECESSARY TO CARRY OUT
ITS FAR REACHING NATIONAL PLAN AND PURPOSES. 

SECOND.  IT IS CONTENDED THAT THE GOVERNMENT CAN CONTEST LIABILITY ON
THE GROUND THAT THE VETERAN WAS TOTALLY AND PERMANENTLY DISABLED PRIOR
TO THE REINSTATEMENT, DESPITE THE PROVISION THAT SUCH POLICY "SHALL BE
INCONTESTABLE  ...  EXCEPT FOR FRAUD, NONPAYMENT OF PREMIUMS, OR ON THE
GROUND THAT THE APPLICANT WAS NOT A MEMBER OF THE MILITARY OR NAVAL
FORCES OF THE UNITED STATES, ..."  IT IS URGED THAT THIS PROVISION "HAS
NO APPLICATION WHERE, AS HERE, THE VALIDITY OF THE POLICY IS NOT
QUESTIONED AND LIABILITY UNDER IT IS DENIED SOLELY ON THE GROUND THAT A
LOSS HAS NOT OCCURRED DURING THE PERIOD OF INSURANCE PROTECTION." 
HOWEVER, IT IS ADMITTED THAT THIS POLICY DID NOT "EXPRESSLY EXCLUDE
TOTAL PERMANENT DISABILITY OCCURRING PRIOR TO INSURANCE PROTECTION, AS
DID THE LANGUAGE OF THE ORIGINAL TERM CONTRACT." 

THIS CONVERTED POLICY OF INSURANCE PROVIDED PROTECTION AGAINST LOSS
FROM TWO CAUSES:  NAMELY, DEATH AND TOTAL PERMANENT DISABILITY.  A
PROVISION MAKING A POLICY "INCONTESTABLE" EXCEPT FOR CERTAIN CLEARLY
DESIGNATED REASONS, IS WHOLLY MEANINGLESS AND INEFFECTIVE IF, AFTER
PROOF OF THE LOSS INSURED AGAINST, THE POLICY CAN BE CONTESTED UPON
GROUNDS WHOLLY DIFFERENT FROM THOSE SET OUT IN THE EXCEPTION.  THE
OBJECT OF THE PROVISION IS TO ASSURE THE INSURED THAT PAYMENT ON HIS
POLICY WILL NOT BE DELAYED BY CONTESTS AND LAWSUITS ON GROUNDS NOT
SAVED BY THE EXCEPTIONS.  FN6  HERE, IT HAS BEEN ESTABLISHED THAT THE
VETERAN IS TOTALLY AND PERMANENTLY DISABLED.  YET HIS POLICY IS
CONTESTED ON THE GROUND THAT IT DOES NOT INSURE AGAINST THIS DISABILITY
BECAUSE IT EXISTED BEFORE THE POLICY WAS ISSUED.  IF THIS DEFENSE CAN
BE INTERPOSED, HIS POLICY HAS NEVER ACTUALLY PROTECTED HIM AGAINST
TOTAL PERMANENT DISABILITY.  SINCE PERMANENT TOTAL DISABILITY IS ONE OF
THE TWO RISKS INSURED AGAINST IN THE POLICY, ANY CONTEST (NOT BASED ON
THE EXCEPTIONS) WHICH MAY PREVENT THE POLICYHOLDER'S RECOVERY FOR SUCH
ADMITTED TOTAL PERMANENT DISABILITY - EXISTING WHILE THE POLICY IS IN
FORCE - IS A "CONTEST" FORBIDDEN BY THE "INCONTESTABLE" PROVISION. 

NO LEGAL OBSTACLE PREVENTS PARTIES, IF THEY SO DESIRE, FROM ENTERING
INTO CONTRACTS OF INSURANCE TO PROTECT AGAINST LOSS THAT MAY POSSIBLY
HAVE ALREADY OCCURRED.  MARINE INSURANCE AND ANTE-DATED FIRE INSURANCE
POLICIES FREQUENTLY AFFORD PROTECTION AGAINST RISKS WHICH, UNKNOWN TO
THE PARTIES, HAVE ALREADY ATTACHED.  FN7 

EVEN WITH THE BENEFIT OF SCRUPULOUS GOOD FAITH, IT IS NOT ALWAYS EASY
TO DETERMINE WITH COMPLETE CERTAINTY WHETHER OR NOT TOTAL PERMANENT
DISABILITY EXISTS.  THIS UNCERTAINTY MAY LEAD AN INSURER, AFTER HIS OWN
INVESTIGATION, AND FOR ADEQUATE COMPENSATION, TO TREAT UNKNOWN PAST AND
UNCERTAIN PROSPECTIVE DISABILITY, UPON THE SAME BASIS.  THIS CASE IS AN
ILLUSTRATION.  HERE, THE GOVERNMENT HAS NEVER ADMITTED THAT THE VETERAN
IS TOTALLY AND PERMANENTLY DISABLED.  IT NOT ONLY ISSUED HIM A POLICY
AGAINST SUCH DISABILITY - WITH COMPLETE KNOWLEDGE OF HIS THEN CONDITION
- BUT IN THIS CONTINUED CONTEST HAS DENIED THAT THE POLICYHOLDER WAS
TOTALLY AND PERMANENTLY DISABLED AT ANY TIME - BEFORE, WHEN, OR AFTER
THE POLICY WAS ISSUED.  THERE WAS ALSO A SHARP CONFLICT OF EVIDENCE ON
THIS DISPUTED FACT. 

WHEN A POLICY OF DISABILITY INSURANCE IS ISSUED AFTER COMPLETE
EXAMINATION BY THE INSURER AND FULL AND FAIR DISCLOSURE BY BOTH
PARTIES, THERE IS NO LEGAL REASON WHY THE INSURER CANNOT CONTRACT TO
AFFORD FULL PROTECTION AGAINST LOSS RESULTING FROM PAST AS WELL AS
PROSPECTIVE DISABILITY.  THIS VETERAN'S POLICY DID NOT EXPRESSLY LIMIT
LIABILITY TO PROSPECTIVE TOTAL PERMANENT DISABILITY.  THE PROVISIONS OF
THE POLICY IN THIS REGARD CONTAIN A PROMISE TO PAY THE VETERAN "IN ...
EVENT OF THE TOTAL PERMANENT DISABILITY  ...  (AND) UPON DUE PROOF OF
THE TOTAL PERMANENT DISABILITY OF THE INSURED WHILE THIS POLICY IS IN
FORCE,  ..."  ORIGINAL POLICIES ISSUED UNDER THE WAR RISK ACT EXPRESSLY
EXCLUDED LIABILITY FOR TOTAL PERMANENT DISABILITY INCURRED BEFORE THE
POLICY "WAS APPLIED FOR."  THE DELIBERATE OMISSION, IN THE CONVERTED
POLICIES, OF THIS PREVIOUS EXCLUSION, THE LANGUAGE AND PURPORT OF THE
ORIGINAL ACT AND ITS AMENDMENTS, THE ADMINISTRATIVE INTERPRETATIONS AND
LEGISLATIVE HISTORY, ALL THROW A FLOOD OF LIGHT ON THE INTENTION TO
INCLUDE LIABILITY FOR DISABILITIES EXISTING PRIOR TO THE ISSUANCE OF
THE POLICIES. 

FOR MORE THAN A DECADE PRIOR TO 1934, (DURING WHICH PERIOD THIS
VETERAN'S POLICY WAS PURCHASED), THE BUREAU, UNVARYINGLY OBSERVING THE
STATUTORY MANDATE, ANNOUNCED AND APPLIED THE PRACTICE THAT "INSURANCE
WAS INCONTESTABLE EXCEPT FOR THE GROUNDS SPECIFICALLY ENUMERATED" IN
THE INCONTESTABLE PROVISION.  A "SUBSEQUENT RATING OF PERMANENT TOTAL
DISABILITY EFFECTIVE AS OF A DATE PRIOR TO THE DATE OF REINSTATEMENT,"
UNDER THIS CONSISTENT ADMINISTRATIVE INTERPRETATION AND PRACTICE, DID
"NOT AFFECT THE VALIDITY OF SUCH REINSTATEMENT."  BECAUSE OF COURT
DECISIONS AND RULINGS BY THE COMPTROLLER GENERAL TENDING TO NULLIFY AND
DEFEAT THIS ADMINISTRATIVE PRACTICE  FN8  THE VETERANS' ADMINISTRATION
URGED THE AMENDMENT OF JULY 3, 1930, TO CONFIRM ITS PRACTICE AND TO
STRENGTHEN AND CLARIFY THE INCONTESTABLE PROVISION.  FOR THIS PURPOSE,
THE ADMINISTRATOR OF VETERANS' AFFAIRS TESTIFIED BEFORE THE SENATE
COMMITTEE AS TO THE NECESSITY FOR THIS AMENDMENT:  FN9 

"THIS IS A VERY SWEEPING AMENDMENT AND WILL PLACE BEYOND CONTEST MANY
CONTRACTS AND POLICIES OF INSURANCE WHICH OTHERWISE WOULD BE
CONTESTABLE.  IT IS A WELL RECOGNIZED PRINCIPLE OF COMMERCIAL INSURANCE
COMPANIES, HOWEVER, AND IN REALITY IS ONLY A CLARIFICATION OF THE
EXISTING LAW WHICH WAS PRACTICALLY NULLIFIED BY A RECENT DECISION OF
THE COMPTROLLER GENERAL." 

THE SOLICITOR OF VETERANS' AFFAIRS ALSO TESTIFIED: 

"...  THE PRESENT WORLD WAR VETERANS ACT OF 1924, AS AMENDED,
CONTAINS A PROVISION TO THE EFFECT THAT WHERE A POLICY IS MAINTAINED IN
FORCE FOR A PERIOD OF SIX MONTHS, IT SHOULD BE INCONTESTABLE, EXCEPT
FOR FRAUD OR NONPAYMENT OF PREMIUMS.  WE HAVE FOLLOWED THAT, AND IN ALL
CASES WHERE THE POLICY HAS REMAINED IN FORCE FOR SIX MONTHS WE HAVE
PAID THE CLAIM, IRRESPECTIVE OF THE MERITS OF IT, UNLESS THERE WAS
FRAUD OR FAILURE TO PAY PREMIUMS....  HOWEVER, UNDER DATE OF JANUARY
16, 1930, NOTWITHSTANDING THE LONG PRACTICE OF THE BUREAU, THE
COMPTROLLER GENERAL, IN THE CASE OF MABRY W. WOODALL, HELD THAT IF A
MAN WAS PERMANENTLY AND TOTALLY DISABLED AT THE TIME HE APPLIED FOR A
REINSTATEMENT OF INSURANCE, OR CONVERSION OF INSURANCE,  ...  THE
POLICY WAS NOT INCONTESTABLE, THE STATUTE DID NOT PROTECT IT  ..." 

IN THE WOODALL CASE REFERRED TO, THE COMPTROLLER GENERAL HAD HELD: 

"...  IF THE INSURED WAS IN FACT DEAD OR PERMANENTLY AND TOTALLY
DISABLED, AT THE DATE OF APPLICATION, REINSTATEMENT OR CONVERSION,  ...
THE INSURANCE WAS SUBJECT TO SUBSEQUENT CONTEST. 

     .  .         .         .         . 

"ACCORDINGLY, THE RULE MAY BE STATED THAT WHERE THE VETERANS' BUREAU
HAS HERETOFORE ESTABLISHED OR MAY HEREAFTER ESTABLISH THE CONDITION OF
PERMANENT TOTAL DISABILITY AT OR PRIOR TO DATE OF ORIGINAL APPLICATION
FOR INSURANCE, OR APPLICATION FOR REINSTATEMENT AND/OR CONVERSION OF
INSURANCE,  ...  THE INSURANCE SHOULD BE CONSIDERED AS INVALID  ..." 

THE SENATE REPORT ON THIS AMENDMENT  FN10  STATED: 

"THE PURPOSE IS TO MAKE ALL CONTRACTS OR POLICIES OF INSURANCE
INCONTESTABLE FROM DATE OF ISSUANCE, REINSTATEMENT, OR CONVERSION, FOR
ALL REASONS EXCEPT FRAUD, NONPAYMENT OF PREMIUMS, OR THAT THE APPLICANT
WAS NOT A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES. 
THIS INCONTESTABILITY WOULD PROTECT CONTRACTS  ...  WHERE THE APPLICANT
WAS NOT IN THE REQUIRED STATE OF HEALTH, OR WAS PERMANENTLY AND TOTALLY
DISABLED PRIOR TO THE DATE OF APPLICATION,  ...  IT IS APPRECIATED THAT
THIS IS A BROAD PROVISION, BUT IT WAS FELT THAT IT WAS NECESSARY IN
ORDER TO DO JUSTICE TO THE VETERANS,  ...  AND TO OVERCOME DECISIONS OF
THE COMPTROLLER GENERAL WHICH PRACTICALLY NULLIFIED THE SECTION AS IT
NOW EXISTS." 

THE CONCLUSION IS INESCAPABLE THAT CONGRESS ENACTED THE 1930
AMENDMENT IN ORDER TO OVERCOME THE EFFECT OF THE ABOVE RULINGS OF THE
COURTS AND THE COMPTROLLER GENERAL, AND WITH THE INTENTION TO SUSTAIN
THE BUREAU'S PREVIOUS ADMINISTRATIVE INTERPRETATION AND PRACTICE UNDER
THE INCONTESTABLE PROVISION. 

TO RESIST PAYMENT OF THIS VETERAN'S INSURANCE POLICY ON THE GROUND
THAT HE WAS TOTALLY AND PERMANENTLY DISABLED PRIOR TO THE ISSUE OF THE
POLICY, IS TO "CONTEST" PAYMENT WITHIN THE GENERALLY ACCEPTED MEANING
OF THE WORD AND VIOLATES THE "INCONTESTABLE" PROVISION.  THE PURCHASER
OF A POLICY CONTRACT CONTAINING A PROVISION THAT THE INSURER WAIVES ITS
RIGHT TO CONTEST EXCEPT FOR FRAUD, NONPAYMENT OF PREMIUMS, AND LACK OF
MILITARY OR NAVAL SERVICE, IS ENTITLED TO RELY ON THE PLAIN TERMS AND
INDUCEMENTS OF THE PROVISION WHICH LIMITS THE GROUNDS FOR CONTEST OF
LIABILITY TO THOSE SPECIFICALLY RESERVED.  FN11  THE INCONTESTABLE
PROVISION HERE MEANS THAT A CLAIM OF A VETERAN WHOSE DEATH OR TOTAL
PERMANENT DISABILITY IS ESTABLISHED SHALL NOT BE CONTESTED EXCEPT FOR
FRAUD, NONPAYMENT OF PREMIUMS OR ON THE GROUND THAT THE INSURED HAD NOT
REALLY BEEN A MEMBER OF THE WAR FORCES OF THE NATION OR BECAUSE HE WAS
INCLUDED IN TITLE 38, U.S.C., SEC. 447.  FN12 CONGRESS EVIDENTLY
BELIEVED THESE EXCEPTIONS AFFORDED THE GOVERNMENT AMPLE PROTECTION
AGAINST IMPOSITIONS OR UNJUST CLAIMS AND INTENDED TO LIMIT THE RIGHT TO
CONTEST THESE POLICIES TO THE SPECIFIC GROUNDS RESERVED IN THE
EXCEPTIONS.  THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.    FN1
90 F.(2D) 715. 

FN2  SEC. 307, WORLD WAR VETERANS ACT, 1924, AS AMENDED JULY 3, 1930,
C. 849, SEC. 24, 46 STAT. 1001. 

FN3  SEC. 400, WAR RISK INSURANCE ACT OF OCT. 6, 1917, C. 105, 40
STAT. 409.    FN4  SEE, UNITED STATES V. ARZNER, 287 U.S. 470, 472. 

FN5  SEE, UNITED STATES V. DOMANGUE, 79 F.(2D) 647, 648. 

FN6  NORTHWESTERN MUTUAL LIFE INS. CO. V. JOHNSON, 254 U.S. 96, 101,
102. 

FN7  GENERAL INTEREST INS. CO. V. RUGGLES, 12 WHEAT.  408; SEE,
HOOPER V. ROBINSON, 98 U.S. 528, 537; PENDERGAST V. GLOBE & R. FIRE
INS. CO., 246 N.Y. 396; 159 N.E. 183; HALLOCK V. COMMERCIAL INS. CO.,
26 N.J.L. (2 DUTCH.)  268; SEE, SPRINGFIELD FIRE & M. INS. CO. V.
NATIONAL FIRE INS. CO., 51 F.(2D) 714, 718-719.  A VALID ALEATORY
CONTRACT MAY BE BASED ON AN UNKNOWN PAST EVENT.  3 WILLISTON, ON
CONTRACTS, (REV. ED.), SEC. 888. 

FN8  9 COMPT.  GEN.  291; JORDAN V. UNITED STATES, 36 F.(2D) 43;
GOLDEN V. UNITED STATES, 34 F.(2D) 367. 

FN9  H.R. 10381, 71ST CONG., 2D SESS., HEARINGS SENATE COMMITTEE ON
FINANCE, PAGES 90-91. 

FN10  SENATE REPORT NO. 1128, P. 10, 71ST CONG., 2D SESS., ON H.R.
13174. 

FN11  SEE, NORTHWESTERN MUTUAL LIFE INS. CO. V. JOHNSON, SUPRA, AT
102. 

FN12  38 U.S.C., SEC. 518, AND SEC. 447.  THIS REFERENCE TO SEC. 447
EXCLUDED FROM THE BENEFITS OF THIS INCONTESTABLE PROVISION ANY PERSON
WHO HAD BEEN DISCHARGED OR DISMISSED FROM THE SERVICE ON THE GROUND
THAT HE WAS "GUILTY OF MUTINY, TREASON, SPYING, OR ANY OFFENSE
INVOLVING MORAL TURPITUDE, OR WILLFUL AND PERSISTENT MISCONDUCT, OF
WHICH HE WAS FOUND GUILTY BY A COURT-MARTIAL, OR THAT HE WAS AN ALIEN,
CONSCIENTIOUS OBJECTOR WHO REFUSED TO PERFORM MILITARY DUTY OR REFUSED
TO WEAR THE UNIFORM, OR A DESERTER,  ..." 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :












ADAIR V. BANK OF AMERICA ASSN., 303 U.S. 350 


NO. 365.  ARGUED FEBRUARY 2, 1938.  - DECIDED FEBRUARY 28, 1938.  - 90
F.2D 750, REVERSED. 


1.  SUBDIVISIONS (E) AND (N) OF SEC. 75 OF THE BANKRUPTCY ACT, WHICH
PROVIDE FOR EXERCISE OF SUCH CONTROL OVER THE PROPERTY OF THE FARMER
DEBTOR AS THE COURT DEEMS IN HIS BEST INTEREST AND IN THAT OF HIS
CREDITORS, LOOK TO THE MAINTENANCE OF THE FARM AS A GOING CONCERN AND
AUTHORIZE, IN A PROPER CASE, THE CONTINUANCE OF THE FARM OPERATIONS
AFTER THE FILING OF THE PETITION.  P. 354. 

2.  A CONCILIATION COMMISSIONER, APPOINTED PURSUANT TO SEC. 75 OF THE
BANKRUPTCY ACT AND RULE L OF THE GENERAL ORDERS IN BANKRUPTCY,
EXERCISES JUDICIAL POWERS LIKE THOSE OF A REFEREE IN BANKRUPTCY; HIS
ACTS IN AUTHORIZING EXPENDITURE OF FUNDS IN HIS CHARGE, IF PERFORMED IN
GOOD FAITH AND NOT IN VIOLATION OF ANY RULE OR POSITIVE ENACTMENT, ARE
JUDICIAL ACTS FOR WHICH HE CAN NOT BE HELD PERSONALLY LIABLE.  P. 357. 

3.  IN A PROCEEDING UNDER SEC. 75 OF THE BANKRUPTCY ACT, PROCEEDS OF
THE SALE OF A CROP OF GRAPES WERE SPENT BY THE CONCILIATION
COMMISSIONER IN HARVESTING THE CROP AND IN WORK FOR THE PRESERVATION OF
THE VINEYARD AND CULTIVATION OF THE CROP FOR THE NEXT YEAR.  PART OF
THE DISBURSEMENTS WERE MADE BEFORE THE FARMER-DEBTOR WAS ADJUDGED A
BANKRUPT, AND PART THEREAFTER BY DIRECTION OF THE REFEREE.  A CREDITOR
CLAIMED THE GROSS PROCEEDS OF THE SALE UNDER A MORTGAGE OF THE CROP
SOLD AND FUTURE CROPS.  THE SAME CREDITOR HAD A MORTGAGE ON THE FARM. 
HELD: 

(1)  THAT, AS THE COMMISSIONER ACTED EITHER JUDICIALLY, AS
CONCILIATION COMMISSIONER, OR MINISTERIALLY, AS AN ARM OF THE COURT BY
AUTHORITY OF THE REFEREE, HE WAS NOT PERSONALLY LIABLE TO THE
CREDITOR.  P. 358. 

(2)  EXPENDITURES, REASONABLE IN AMOUNT, FOR GATHERING THE CROP SOLD,
AND ALSO THOSE IN PREPARATION FOR THE NEXT YEAR'S CROP AND FOR
MAINTENANCE OF THE PROPERTY, WERE PROPER CHARGES ON THE FUND, BEING FOR
ITS PROTECTION AND IN THE INTEREST OF THE MORTGAGEE.  P. 360. 

ADAIR V. BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 674, TO REVIEW A JUDGMENT WHICH REVERSED AN
ORDER OF THE DISTRICT COURT SETTLING THE FINAL ACCOUNT OF THE PRESENT
PETITIONER AS A CONCILIATION COMMISSIONER IN A BANKRUPTCY PROCEEDING. 

MR. JUSTICE REED DELIVERED THE OPINION OF THE COURT. 

THIS WRIT WAS ASKED TO REVIEW A DECREE OF THE CIRCUIT COURT OF
APPEALS FOR THE NINTH CIRCUIT, UPHOLDING THE OBJECTIONS AND EXCEPTIONS
OF THE RESPONDENT, A CREDITOR, TO THE FINAL ACCOUNT OF PETITIONER, A
CONCILIATION COMMISSIONER APPOINTED UNDER SEC. 75(A) OF THE BANKRUPTCY
ACT, AND REVERSING THE ORDER OF THE DISTRICT COURT WHICH HAD SETTLED
AND ALLOWED THE ACCOUNT.  THE CIRCUIT COURT OF APPEALS HELD THAT THE
PETITIONER SHOULD HAVE BEEN REQUIRED TO PAY TO RESPONDENT THE GROSS
PROCEEDS OF THE GRAPE CROP HARVESTED ON THE DEBTOR'S LAND AFTER THE
DEBTOR HAD FILED HIS PETITION UNDER SEC. 75 OF THE BANKRUPTCY ACT,
WITHOUT ANY DEDUCTION FOR MONEYS SPENT IN HARVESTING THAT CROP AND FOR
OTHER PURPOSES, BECAUSE OF THE FACT THAT THE CROP WAS SUBJECT TO A
CHATTEL MORTGAGE HELD BY RESPONDENT.  90 F.(2D) 750.  IN VIEW OF THE
IMPORTANCE OF THE QUESTION WITH RESPECT TO PROCEEDINGS INSTITUTED UNDER
SEC. 75 OF THE BANKRUPTCY ACT, THIS COURT GRANTED CERTIORARI. 

ON AUGUST 6, 1934, ANDREA CUCCIA, A FARMER, FILED AN ADEQUATE
PETITION UNDER SEC. 75(A) TO (R) OF THE BANKRUPTCY ACT, SHOWING BY THE
SCHEDULES SECURED CLAIMS TO RESPONDENT OF OVER $12,000 AND UNSECURED
CLAIMS OF A SLIGHTLY LARGER AMOUNT, AND EXPRESSING HIS DESIRE TO EFFECT
A COMPOSITION OR EXTENSION OF TIME TO PAY HIS DEBTS.  HIS PETITION WAS
REFERRED TO NOAH ADAIR, THE CONCILIATION COMMISSIONER FOR THE COUNTY OF
SAN BERNARDINO, CALIFORNIA.  ON JANUARY 7, 1935, AN AMENDED PETITION
WAS FILED BY THE DEBTOR, STATING THAT HE HAD FAILED TO OBTAIN THE
APPROVAL OF HIS CREDITORS TO A COMPOSITION OR EXTENSION PROPOSAL AND
PRAYING THAT HE MIGHT BE ADJUDGED A BANKRUPT UNDER THE PROVISIONS OF
SEC. 75, SUBSECTION (S) OF THE BANKRUPTCY ACT, AS ENACTED JUNE 28,
1934.  ADJUDICATION WAS ENTERED AND THE PROCEEDINGS REFERRED TO THE
REFEREE IN BANKRUPTCY.  ON OCTOBER 14, 1935, THE DISTRICT COURT, ON A
MOTION BY THE RESPONDENT, DISMISSED THE PETITION.  ON MARCH 16, 1936,
THE DEBTOR ATTEMPTED TO INVOKE THE BENEFITS OF THE AMENDED SEC. 75(S),
BUT WE ARE NOT HERE CONCERNED WITH THAT PETITION AND THE SUBSEQUENT
PROCEEDINGS (SET OUT IN BANK OF AMERICA NATIONAL TRUST & S. ASSN. V.
CUCCIA, 93 F.(2D) 754, DECIDED DECEMBER 30, 1937, ON REHEARING, BY THE
CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT). 

THE RESPONDENT, AT THE BEGINNING OF AND THROUGHOUT THE PROCEEDINGS,
HELD A MATURED NOTE OF THE DEBTOR AND HIS WIFE, SECURED BY A DEED OF
TRUST ON CERTAIN LANDS IN THE COUNTY OF SAN BERNARDINO, CALIFORNIA, AND
BY A MORTGAGE ON THE CROPS GROWING OR TO BE GROWN ON THE SAME LANDS,
DURING 1933 AND 1934, OR PRIOR TO THE PAYMENT IN FULL OF THE TOTAL
INDEBTEDNESS.  THE CROP MORTGAGE REQUIRED THE MORTGAGOR TO CULTIVATE,
HARVEST AND DELIVER THE CROP TO THE MORTGAGEE, WITHOUT COST TO THE
MORTGAGEE, FOR SALE AND APPLICATION OF THE PROCEEDS TO THE DEBT. 

THE PRESENT CONTROVERSY HAD ITS ORIGIN IN THE RESPONDENT'S PETITION
TO THE COURT, ON FEBRUARY 6, 1936, FOR AN ACCOUNTING BY THE
CONCILIATION COMMISSIONER OF FUNDS REALIZED FROM CROPS SOLD OFF THE
DEBTOR'S PREMISES IN 1934.  IN RESPONSE TO THE ORDER OF THE DISTRICT
COURT, THE CONCILIATION COMMISSIONER MADE AN ACCOUNTING AS APPEARS IN
THE FOOTNOTE.  FN1  THE BANK OBJECTED TO THE ACCOUNT ON THE GROUND THAT
THE MONEY WAS THE PROCEEDS OF THE SALE OF A CROP COVERED BY THE CHATTEL
MORTGAGE ABOVE REFERRED TO AND THAT THE DISBURSEMENTS FROM THE FUND
WERE MADE WITHOUT VALID ORDER BY THE DISTRICT COURT AND WITHOUT THE
BANK'S NOTICE OR KNOWLEDGE OF ANY COURT ORDER.  IT WAS FURTHER OBJECTED
THAT AFTER ADJUDICATION IN BANKRUPTCY UNDER SEC. 75(S) THE CONCILIATION
COMMISSIONER HAD NO JURISDICTION.  PETITIONER STATED IN HIS ANSWER AND
TESTIMONY THAT THE ITEMS APPEARING PRIOR TO THE ADJUDICATION IN
BANKRUPTCY OF JANUARY 7, 1935, WERE DISBURSED, ON HIS ORDERS AS
CONCILIATION COMMISSIONER, EITHER TO GATHER THE 1934 CROP OR TO PROVIDE
FOR CARE OF THE PROPERTY, AND THAT THE ITEMS APPEARING FROM JANUARY 22
THROUGH JUNE 1, 1935, WERE DISBURSED UNDER THE DIRECTION OF THE REFEREE
IN BANKRUPTCY.  THE DISTRICT COURT, FINDING THAT THE EXPENDITURES OF
THE CONCILIATION COMMISSIONER WERE MADE IN GOOD FAITH AND FOR THE
PURPOSE OF CONSERVING THE ESTATE, SETTLED AND ALLOWED THE ACCOUNT.  THE
CIRCUIT COURT OF APPEALS DIRECTED THE DISALLOWANCE OF THE ACCOUNT AND
THE PAYMENT BY THE CONCILIATION COMMISSIONER TO THE RESPONDENT OF THE
GROSS PROCEEDS OF THE MORTGAGED CROP. 

FIRST.  THE POWERS GRANTED BY THE BANKRUPTCY CLAUSE OF THE
CONSTITUTION, ARTICLE 1, SEC. 8, CL. 4, ARE NOT LIMITED TO THE
BANKRUPTCY LAW AND PRACTICE IN FORCE IN ENGLAND OR THE STATES AT THE
TIME OF ITS ADOPTION.  CONTINENTAL ILLINOIS NAT. BANK & T. CO. V.
CHICAGO, R.I. & P. RY. CO., 294 U.S. 648, 668.  THEN THE INTERESTS OF
THE CREDITOR ALONE WERE PROTECTED.  PROGRESSIVE LIBERALIZATION OF
BANKRUPTCY AND INSOLVENCY LAWS, IN AN EFFORT TO AVERT THE EVILS OF
LIQUIDATION, HAS FURNISHED OPPORTUNITY FOR COMPOSITION IN BANKRUPTCY
PROCEEDINGS AND LATER FOR COMPOSITION AND EXTENSION OF DEBTS IN RELIEF
PROCEEDINGS FOR INDIVIDUAL DEBTORS, FOR REORGANIZATION OF RAILROADS AND
OTHER CORPORATIONS, AND FOR PUBLIC DEBTOR PROCEEDINGS.  FN2 

FOR THE REHABILITATION OF FARMERS.  WRIGHT V. VINTON BRANCH BANK, 300
U.S. 440, 456.  IT IS SOUGHT TO ACCOMPLISH THIS REHABILITATION THROUGH
COMPOSITION OR EXTENSION OF DEBTS, SUBSECTIONS (E) TO (L).  ON FAILURE
OF COMPOSITION AND EXTENSION, FURTHER OPPORTUNITY FOR REHABILITATION IS
AFFORDED THE DEBTOR, THROUGH PROVISIONS ENABLING HIM TO RETAIN
POSSESSION OF HIS PROPERTY, UNDER CONDITIONS FAVORABLE TO ITS ULTIMATE
REDEMPTION BY HIM.  THESE STEPS ARE CARRIED OUT UNDER JUDICIAL
SUPERVISION, SUBSECTION (S).  FN4 

TO ACCOMPLISH ITS PURPOSE, SEC. 75 PROVIDES THAT THE FILING OF A
PETITION SHALL EFFECT A STAY.  FN5  SUCH A STAY UNDER JUDICIAL
DISCRETION AS TO ENFORCEMENT OF CLAIMS DOES NOT TAKE PROPERTY WITHOUT
DUE PROCESS AND IS CONSTITUTIONAL.  CONTINENTAL ILLINOIS NAT. BANK & T.
CO. V. CHICAGO, R.I. & P. RY. CO., SUPRA, AT PAGES 675 ET SEQ. AND 680
ET SEQ.; WRIGHT V. VINTON BRANCH, SUPRA, 460; HOME BLDG. & LOAN ASSN.
V. BLAISDELL, 290 U.S. 398.  IN ORDER TO OPERATE AND PROTECT THE
PROPERTY DURING THE STAY, AND PENDING CONFIRMATION OR OTHER DISPOSITION
OF THE COMPOSITION OR EXTENSION PROPOSAL, THE STATUTE PROVIDES IN
SUBSECTIONS (E) AND (N)  FN6  FOR THE EXERCISE BY THE COURT OF "SUCH
CONTROL OVER THE PROPERTY OF THE FARMER AS THE COURT DEEMS IN THE BEST
INTERESTS OF THE FARMER AND HIS CREDITORS."  THESE PROVISIONS LOOK
TOWARD THE MAINTENANCE OF THE FARM AS A GOING CONCERN, AND AFFORD CLEAR
AUTHORITY, IN A PROPER CASE, FOR THE CONTINUANCE OF THE OPERATIONS OF
THE FARM AFTER THE FILING OF A PETITION UNDER SEC. 75 OF THE BANKRUPTCY
ACT. 

SECOND.  IN HOLDING THE CONCILIATION COMMISSIONER PERSONALLY LIABLE,
WE THINK THE LOWER COURT MISCONCEIVED THE NATURE OF HIS OFFICE.  AT THE
TIME OF FILING THE ORIGINAL PETITION FOR COMPOSITION AND EXTENSION,
AUGUST 6, 1934, SEC. 75 OF THE BANKRUPTCY ACT WAS COMPRISED OF
SUBSECTIONS (A) TO (S) INCLUSIVE.  SUBSECTIONS (A) TO (R) MADE
PROVISION FOR CONCILIATION COMMISSIONERS, SET UP THE SAME
QUALIFICATIONS FOR ELIGIBILITY TO THIS OFFICE AS ARE REQUIRED FOR THE
OFFICE OF REFEREE, AUTHORIZED THE CONCILIATION COMMISSIONERS TO RECEIVE
AND TRANSMIT THE PETITIONS AND SCHEDULES, TO CALL THE FIRST MEETING OF
CREDITORS, WITH NOTICE OF TERMS OF COMPOSITION OR EXTENSION, TO HEAR
THE PARTIES IN INTEREST, TO PREPARE FINAL INVENTORY, TO SUPERVISE THE
FARMER'S AFFAIRS DURING AN EXTENSION PERIOD AND TO DISTRIBUTE THE
CONSIDERATION AFTER A COMPOSITION.  IN ACCORDANCE WITH SEC. 75,
SUBSECTION (B), THIS COURT, AS OF APRIL 24, 1933, ESTABLISHED RULE L,
GOVERNING PROCEEDINGS UNDER SEC. 75, (A) TO (R) INCLUSIVE, AS AN
ADDITION TO THE GENERAL ORDERS IN BANKRUPTCY, 288 U.S. AT 641.  RULE L
PROVIDED FOR REFERENCE TO THE CONCILIATION COMMISSIONER, AND HIS
CARRYING OUT OF THE DUTIES OUTLINED ABOVE.  THE COMMISSIONER WAS GIVEN,
IN SO FAR AS CONSISTENT WITH SEC. 75 AND RULE L, "ALL THE POWERS AND
DUTIES OF A REFEREE IN BANKRUPTCY," TO BE CARRIED OUT UNDER THE GENERAL
ORDERS IN BANKRUPTCY.  RULE L (11).  SECTIONS 38 AND 39 OF THE
BANKRUPTCY ACT AND SUBSECTIONS 3 AND 6 OF RULE L INDICATE THE WIDE
EXTENT OF THE AUTHORITY OF THE CONCILIATION COMMISSIONER.  UNDER SEC.
38, BANKRUPTCY ACT, CLAUSE FOUR, THE REFEREE IS EMPOWERED TO "PERFORM
SUCH PART OF THE DUTIES, EXCEPT AS TO QUESTIONS ARISING OUT OF THE
APPLICATIONS OF BANKRUPTS FOR COMPOSITIONS OR DISCHARGES, AS ARE BY
THIS ACT CONFERRED ON COURTS OF BANKRUPTCY  ..."  FN7 

IN VIEW OF THE FOREGOING THE CONCILIATION COMMISSIONER HAD THE
AUTHORITY, PRIOR TO THE ADJUDICATION OF BANKRUPTCY UNDER SEC. 75(S), TO
ACT AS THE "COURT," IN THE FIRST INSTANCE AND SUBJECT TO REVIEW, IN
CONTROLLING THE PROPERTY OF THE DEBTOR "IN THE BEST INTERESTS OF THE
FARMER AND HIS CREDITORS."  SEC. 75(E).  IN RE WIEDMER, 82 F.(2D) 566. 
UNDER THIS AUTHORITY THE CONCILIATION COMMISSIONER ACTED IN AUTHORIZING
THE EXPENDITURES SHOWN ON THE ACCOUNT FOR GATHERING THE CROP OF 1934,
PREPARING FOR THE CROP OF 1935, AND PAYING FEES AND EXPENSES.  IT IS
PLAIN THAT THE CONCILIATION COMMISSIONER, LIKE THE REFEREE (WHITE V.
SCHLOERB, 178 U.S. 542, 546; MUELLER V. NUGENT, 184 U.S. 1, 13)
EXERCISES SOME OF THE "JUDICIAL AUTHORITY" OF THE BANKRUPTCY COURT. 
THE ACTS JUST DETAILED WERE JUDICIAL ACTS.  ERROR WITHIN HIS
JURISDICTION DOES NOT SUBJECT HIM TO PERSONAL LIABILITY.  RANDALL V.
BRIGHAM, 7 WALL.  523, 535.  SEE ALSO BRADLEY V. FISHER, 13 WALL.  335;
ALZUA V. JOHNSON, 231 U.S. 106; YASELLI V. GOFF, 275 U.S. 503.  CF.
FIRST NATIONAL BANK V. BONNER, 74 F.(2D) 139, 142; UNITED STATES V.
WARD, 257 FED. 372, 377.  THIS DOCTRINE IS QUITE CLEAR WHEN, AS HERE,
NO RULE OR POSITIVE ENACTMENT WAS VIOLATED AND THE ACTS WERE BONA
FIDE. 

THE FACT THAT THE PROCEEDS OF THE CROP WERE BANKED TO THE JOINT
ACCOUNT OF THE DEBTOR AND THE CONCILIATION COMMISSIONER MAY HAVE
OBSCURED THE JUDICIAL CHARACTER OF THE LATTER.  BETTER PRACTICE WOULD
SUGGEST THAT THE ACCOUNT APPEAR IN THE NAME OF THE DEBTOR, WITH THE
COUNTER-SIGNATURE OF THE CONCILIATION COMMISSIONER REQUIRED FOR
WITHDRAWALS.  ALSO, AT AN EARLY, PREFERABLY THE FIRST, MEETING OF
CREDITORS, THE METHOD OF HANDLING THE BUSINESS OF THE DEBTOR PENDING
CONFIRMATION OR FURTHER ORDER SHOULD HAVE BEEN DEVELOPED AND PROPER
ORDERS ENTERED.  CF. SEC. 12(A), BANKRUPTCY ACT.  THIS DOES NOT APPEAR
TO HAVE BEEN DONE.  THESE IRREGULARITIES DO NOT SUFFICE TO WITHDRAW
FROM THE CONCILIATION COMMISSIONER HIS JUDICIAL PROTECTION.  ALZUA V.
JOHNSON, 231 U.S. 106. 

SOME DISBURSEMENTS WERE MADE AFTER THE ADJUDICATION IN BANKRUPTCY
UNDER SUBSECTION (S) AND THE REFERENCE OF THE PROCEEDINGS TO A REFEREE
IN BANKRUPTCY.  IT IS UNNECESSARY TO DECIDE WHETHER, UNDER SEC. 75(S)
AS ORIGINALLY ENACTED, THE CONCILIATION COMMISSIONER COULD HAVE
CONTINUED TO ACT AS REFEREE.  IN THIS CASE, THERE WAS NO FURTHER
REFERENCE OF THE PROCEEDINGS TO PETITIONER, AND HE CONTINUED TO ACT
SOLELY AT THE DIRECTION OF THE REFEREE IN BANKRUPTCY.  HIS
UNCONTRADICTED TESTIMONY WAS AS FOLLOWS: 

"WHEN THIS MATTER WAS REFERRED TO D. W. RICHARDS AS REFEREE I WANTED
HIM TO TAKE THE MONEY I HAD ON HAND AND BECOME THE CUSTODIAN OF IT.  HE
ASKED ME TO KEEP THE MONEY AND SAID HE WOULD TRUST ME IN THE
EXPENDITURE OF THE MONEY WHILE IT WAS UNDER HIM AND THAT HE WOULD O.K.
THE CHECKS, SO ALL THE CHECKS THAT WERE WRITTEN AFTER IT WENT TO D. W.
RICHARDS WERE O. K.'D BY HIM AND I WROTE THE CHECKS AT HIS REQUEST." 

WITHOUT DETERMINING THE EFFECT OF THE UNCONSTITUTIONALITY OF
SUBSECTION (S) UPON THE STEPS TAKEN UNDER ITS AUTHORITY, IT APPEARS
THAT THE PETITIONER ACTED EITHER JUDICIALLY, CONTINUING TO EXERCISE HIS
POWERS AS CONCILIATION COMMISSIONER, OR MINISTERIALLY, AS AN ARM OF THE
COURT, UNDER THE DIRECTION AND WITH THE APPROVAL OF THE REFEREE.  UNDER
THE FACTS OF THIS CASE WE DO NOT THINK PETITIONER IS PERSONALLY LIABLE
FOR THESE DISBURSEMENTS.  CF. FIRST NATIONAL BANK V. BONNER, 74 F.(2D)
139, 142. 

THIRD.  MOREOVER, THE EXPENDITURES ASSAILED BY RESPONDENT WERE
PROPER, AT LEAST WITH RESPECT TO THE PRINCIPAL ITEMS (WHICH ARE THE
ONLY ONES WE SHALL CONSIDER) - THE AMOUNTS SPENT IN HARVESTING THE 1934
CROP, WHICH WAS SOLD IN ORDER TO CREATE THE FUND, AND THE AMOUNTS SPENT
FOR PRESERVATION OF THE VINEYARD AND FOR THE CULTIVATION OF THE 1935
CROP.  THERE IS NO SHOWING THAT PETITIONER WAS IMPROVIDENT.  REFERENCE
IS MADE IN HIS ACCOUNT TO MONEY PAID TO THE FARMER AS "LIVING
EXPENSES," BUT THE RECORD DISCLOSES THAT THE AMOUNTS PAID THE DEBTOR
DID NOT EXCEED THE ORDINARY WAGES FOR THE WORK HE ACTUALLY AND
NECESSARILY PERFORMED IN THE MAINTENANCE OF THE VINEYARD.  COMPARE
WRIGHT V. VINTON BRANCH, SUPRA, 300 U.S. AT 466; IN RE BARROW, 98 FED.
582.    THE COURT BELOW RULED THAT UNDER THE CROP MORTGAGE THE FARMER
HAD THE OBLIGATION TO CULTIVATE AND HARVEST THE CROP AT HIS OWN
EXPENSE, AND THEREFORE THE GROSS PROCEEDS BELONGED TO RESPONDENT.  THIS
CONCLUSION DISREGARDS THE FACT THAT THE DEBTOR DID NOT HARVEST THE
GRAPES AS AN ORDINARY MORTGAGOR.  HE HAD COME INTO COURT SEEKING RELIEF
UNDER SEC. 75 OF THE BANKRUPTCY ACT.  THE FILING OF HIS PETITION PUT
THE PROPERTY IN THE CONTROL OF THE COURT AND THE HARVESTING OF THE CROP
AND THE PRESERVATION OF THE PROPERTY BECAME A MATTER FOR THE CONCERN
AND ACTION OF THE COURT. 

RESPONDENT CERTAINLY CANNOT COMPLAIN OF THE DEVOTION OF THE PROCEEDS
OF THE 1934 CROP TO THE COST OF HARVESTING THAT CROP.  THE CARE AND
HARVESTING OF THAT CROP REPRESENTED THE ONLY WAY TO PRESERVE ITS WORTH
(CF. UNION TRUST CO. V. ILLINOIS MIDLAND RY. CO., 117 U.S. 434, 455),
AND THE COST OF PROTECTING A FUND IN COURT IS EVERYWHERE RECOGNIZED AS
A DOMINANT CHARGE ON THAT FUND.  SEE BRONSON V. LA CROSSE R. CO., 1
WALL.  405, 410; SHEPHERD V. PEPPER, 133 U.S. 626, 652; THOMPSON V.
PHENIX INS. CO., 136 U.S. 287, 293; ATLANTIC TRUST CO. V. CHAPMAN, 208
U.S. 360, 376; WRIGHT V. VINTON BRANCH, SUPRA, 300 U.S. AT 468.  THE
RULE APPLIES EVEN IN ORDINARY BANKRUPTCY PROCEEDINGS  FN8  SINCE THE
SECURED CREDITOR BENEFITS FROM THE DISBURSEMENT.  FN9 

AND SINCE THE CREDITOR IN THIS CASE HAD A LIEN ON THE CROP FOR FUTURE
YEARS AND ON THE REAL ESTATE, WE CANNOT SAY THAT THE MONEY EXPENDED FOR
MAINTENANCE OF THE REAL ESTATE AND TOWARD PRODUCTION OF THE 1935 CROP
WAS NOT LIKEWISE FOR ITS BENEFIT.  COMPARE WRIGHT V. VINTON BRANCH,
SUPRA, 300 U.S. AT 468.  FN10  RESPONDENT ITSELF HAS SUGGESTED, IN
ANOTHER CONNECTION (SEE BANK OF AMERICA NATIONAL TRUST & S. ASSN. V.
CUCCIA, SUPRA), THAT THE GRAPE VINES REQUIRE "CULTIVATION, PRUNING AND
CARE," LEST THEY "DETERIORATE."  IT IS UNNECESSARY TO DETERMINE THE
EFFECT OF AN EXPENDITURE OF THE PROCEEDS OF A CROP WHERE THE MORTGAGEE
HAS NO LIEN ON THE PROPERTY PRESERVED AND PROTECTED BY THE
EXPENDITURES. 

THE DECREE IS REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS
IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  ACCOUNT - FILED FEBRUARY 17, 1936: 

SEPTEMBER 26, 1934 - AN ACCOUNT IN THE NAME OF ANDREA

CUCCIA AND NOAH ADAIR WAS OPENED WITH THE AMERICAN

NATIONAL BANK, SAN BERNARDINO, CALIFORNIA, AND A

DEPOSIT OF $1,437.37 WAS
MADE................................$1,437.37 

SEPTEMBER 26, 1934 - CASH, LABOR, FOR 20 MEN ON RANCH. 

COURT ORDER ISSUED*..........................................
340.00 

OCTOBER 1, 1934 - ANDREA CUCCIA................................
59.33 

OCTOBER 30, 1934 - ANDREA CUCCIA, 14 DAYS LABOR COURT

ORDER ISSUED.................................................
42.00 

NOVEMBER 27, 1934 - ANDREW CUCCIA, $15.  LIVING EXPENSE

$20, FILING FEE UNDER 75(S) AND $20, FEED FOR HORSE. 

COURT ORDER..................................................
55.00 

DECEMBER 20, 1934 - ANDREA CUCCIA, $10.  FEED FOR HORSE

AND $10.  LIVING EXPENSE......................................
20.00 

JANUARY 22, 1935 - ANDREA CUCCIA, $20.  AND LABOR ON

GROVE $144.00................................................
164.00 

(FOL. 18) JANUARY 22, 1935 - D. W. RICHARDS INDEMNITY

FEE UNDER SECTION 75(S)......................................
18.25 

FEBRUARY 1, 1935 - ANDREA CUCCIA, LABOR, 8 MEN, 11 DAYS

EACH.........................................................
264.00 

FEBRUARY 15, 1935 - ANDREA CUCCIA LABOR........................
90.00 

MARCH 15, 1935 - ANDREA CUCCIA, $45.  LABOR; $20.  HAY AND

$10.  LIVING EXPENSE..........................................
75.00 

APRIL 19, 1935 - JOS.  E. RICH, COURT REPORTER..................
22.50 

APRIL 19, 1935 - RALPH W. ECKHARDT, ATTORNEYS FEE..............
50.00 

APRIL 19, 1935 - ANDREA CUCCIA, 37 DAYS WORK OF HIRED MEN......
111.00 

MAY 11, 1935 - ANDREA CUCCIA, SULPHUR FOR GRAPES...............
60.00 

JUNE 1, 1935 - ANDREA CUCCIA, LABOR FOR TWO MEN WORKING

IN GRAPES....................................................
30.00 

TOTAL...................................................$1,401.08 

TAX, ETC.......................................................
.60

                                                 $1,401.68 

BALANCE IN BANK TO DATE, $35.69. 

*(THE "COURT ORDER" REFERS TO AN ORDER ENTERED BY PETITIONER
HIMSELF.  THE ONLY ORDER ENTERED BY THE DISTRICT COURT AS TO THESE
EXPENDITURES WAS ITS ORDER OF APPROVAL OF THE ACCOUNT FILED BY
PETITIONER.) 

FN2  BANKRUPTCY ACT OF 1867, AS AMENDED BY THE ACT OF 1874, C. 390,
SEC. 17, 18 STAT. 178, 182; ACT OF MARCH 3, 1933, C. 204, 47 STAT.
1467; ACT OF JUNE 7, 1934, C. 424, 48 STAT. 911; ACT OF JUNE 28, 1934,
C. 869, 48 STAT. 1289; ACT OF APRIL 10, 1936, C. 186, 49 STAT. 1198;
ACT OF APRIL 11, 1936, C. 210, 49 STAT. 1203, ACT OF AUGUST 16, 1937,
C. 657, 50 STAT. 653. 

FN3  SUBSECTIONS (A) TO (R) WERE ADDED BY THE ACT OF MARCH 3, 1933,
C. 204, SEC. 1, 47 STAT. 1470-1473, AND SUBSECTIONS (A) AND (B) AMENDED
BY THE ACT OF JUNE 7, 1934, C. 424, SECS. 8 AND 9, 48 STAT. 911, 925. 
SUBSECTION (S), THE FIRST FRAZIER-LEMKE ACT, WAS ADDED JUNE 28, 1934,
C. 869, 48 STAT. 1289.  SUBSEQUENT TO THE DECISION IN LOUISVILLE JOINT
STOCK LAND BANK V. RADFORD, 295 U.S. 555, VARIOUS SUBSECTIONS,
INCLUDING (S), WERE AMENDED BY THE NEW FRAZIER-LEMKE ACT, AUGUST 28,
1935, C. 792, 49 STAT. 942. 

FN4  SUBSECTION (S) IN EFFECT AT THE INSTITUTION OF THIS PROCEEDING
FOR THE RELIEF OF A DEBTOR WAS HELD UNCONSTITUTIONAL IN LOUISVILLE
JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555.  THE NEW SUBSECTION (S)
WAS APPROVED IN WRIGHT V. VINTON BRANCH, 300 U.S. 440. 

FN5  SUBSECTION (O) OF SEC. 75(WHICH HAS NEVER BEEN AMENDED)
PROVIDES: 

"(O) EXCEPT UPON PETITION MADE TO AND GRANTED BY THE JUDGE AFTER
HEARING AND REPORT BY THE CONCILIATION COMMISSIONER, THE FOLLOWING
PROCEEDINGS SHALL NOT BE INSTITUTED, OR IF INSTITUTED AT ANY TIME PRIOR
TO THE FILING OF A PETITION UNDER THIS SECTION, SHALL NOT BE
MAINTAINED, IN ANY COURT OR OTHERWISE, AGAINST THE FARMER OR HIS
PROPERTY, AT ANY TIME AFTER THE FILING OF THE PETITION UNDER THIS
COMPOSITION OR EXTENSION PROPOSAL BY THE COURT: 

"(1) PROCEEDINGS FOR ANY DEMAND, DEBT, OR ACCOUNT, INCLUDING ANY
MONEY DEMAND; 

"(2) PROCEEDINGS FOR FORECLOSURE OF A MORTGAGE ON LAND, OR FOR
CANCELLATION, RESCISSION, OR SPECIFIC PERFORMANCE OF AN AGREEMENT FOR
SALE OF LAND OR FOR RECOVERY OF POSSESSION OF LAND; 

"(3) PROCEEDINGS TO ACQUIRE TITLE TO LAND BY VIRTUE OF ANY TAX SALE; 

"(4) PROCEEDINGS BY WAY OF EXECUTION, OF ATTACHMENT, OR GARNISHMENT; 

"(5) PROCEEDINGS TO SELL LAND UNDER OR IN SATISFACTION OF ANY
JUDGMENT OR MECHANIC'S LIEN; AND 

"(6) SEIZURE, DISTRESS, SALE, OR OTHER PROCEEDINGS UNDER AN EXECUTION
OR UNDER ANY LEASE, LIEN, CHATTEL MORTGAGE, CONDITIONAL SALE AGREEMENT,
CROP PAYMENT AGREEMENT, OR MORTGAGE." 

FN6  THESE SUBSECTIONS, AS ORIGINALLY ENACTED, READ: 

"(E)  ...  AFTER THE FILING OF THE PETITION AND PRIOR TO THE
CONFIRMATION OR OTHER DISPOSITION OF THE COMPOSITION OR EXTENSION
PROPOSAL BY THE COURT, THE COURT SHALL EXERCISE SUCH CONTROL OVER THE
PROPERTY OF THE FARMER AS THE COURT DEEMS IN THE BEST INTERESTS OF THE
FARMER AND HIS CREDITORS." 

"(N) THE FILING OF A PETITION PLEADING FOR RELIEF UNDER THIS SECTION
SHALL SUBJECT THE FARMER AND HIS PROPERTY, WHEREVER LOCATED, TO THE
EXCLUSIVE JURISDICTION OF THE COURT.  IN PROCEEDINGS UNDER THIS
POWERS OF THE COURT, THE TITLE, POWERS, AND DUTIES OF ITS OFFICERS, THE
DUTIES OF THE FARMER, AND THE RIGHTS AND LIABILITIES OF CREDITORS, AND
OF ALL PERSONS WITH RESPECT TO THE PROPERTY OF THE FARMER AND THE
JURISDICTION OF THE APPELLATE COURTS, SHALL BE THE SAME AS IF A
VOLUNTARY PETITION FOR ADJUDICATION HAD BEEN FILED AND A DECREE OF
ADJUDICATION HAD BEEN ENTERED ON THE DAY WHEN THE FARMER'S PETITION OR
ANSWER WAS FILED." 

SUBSECTION (E) HAS NEVER BEEN AMENDED.  SUBSECTION (N) WAS AMENDED IN
RESPECTS NOT MATERIAL HERE, BY THE ACT OF AUGUST 28, 1935, C. 792, 49
STAT. 942. 

FN7  "APPLICATIONS OF BANKRUPTS FOR COMPOSITIONS," AS USED IN THIS
CLAUSE, DOES NOT REFER TO PROCEEDINGS OF DEBTOR FOR REHABILITATION
UNDER SEC. 75.  AND EVEN UNDER SEC. 12, THE REFEREE HAS AUTHORITY TO
PROCEED WITH STEPS PRELIMINARY TO THE APPLICATION FOR CONFIRMATION OF
THE COMPOSITION PROPOSAL.  CF. GENERAL ORDER XII, PARAGRAPH 3; IN RE
BLOODWORTH-STEMBRIDGE CO., 178 FED. 372. 

RULE 77 OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
READS AS FOLLOWS:  "RULE 77.  - JURISDICTION OF REFEREES.  IT IS
ORDERED THAT THE REFEREES IN BANKRUPTCY OF SAID COURT BE, AND THEY ARE
HEREBY VESTED WITH JURISDICTION IN ALL BANKRUPTCY CASES WITHIN THE
LIMITS OF THEIR RESPECTIVE COUNTIES, TO PERFORM ALL THE DUTIES
CONFERRED ON COURTS OF BANKRUPTCY, WHICH REFEREES MAY BE REQUIRED OR
AUTHORIZED TO PERFORM; EXCEPT AS OTHERWISE PROVIDED BY GENERAL ORDER IN
BANKRUPTCY NO. XII." 

FN8  THOUGH THE COURT ORDERS A SALE FREE OF LIENS WITHOUT THE CONSENT
OF THE LIENHOLDER, THE COST OF PRESERVING THE PROPERTY IS DEDUCTED
BEFORE THE PROCEEDS ARE TURNED OVER TO HIM.  C.B. NORTON JEWELRY CO. V.
HINDS, 245 FED. 341, 343; IN RE N.Y. & PHILA.  PACKAGE CO., 225 FED.
219, 224; IN RE HANSEN & BIRCH, 292 FED. 898, 899; IN RE WESTMORELAND,
4 F.(2D) 602, 603; IN RE PRINCE & WALKER, 131 FED. 546, 551; IN RE
DAVIS, 155 FED. 671, 673. 

FN9  SEE VIRGINIA SECURITIES CORP. V. PATRICK ORCHARDS, 20 F.(2D) 78,
81; C.B. NORTON JEWELRY CO. V. HINDS, 245 FED. 341, 343; IN RE PRINCE &
WALKER, 131 FED. 541, 546. 

FN10  THE COURT SAID: 

"(C) THE DISPOSITION OF THE RENTAL REQUIRED TO BE MADE IS SAID TO
INVOLVE DENIAL OF THE MORTGAGEE'S RIGHTS.  PARAGRAPH 2 PROVIDES: 

"'SUCH RENTAL SHALL BE PAID INTO COURT, TO BE USED, FIRST, FOR
PAYMENT OF TAXES AND UPKEEP OF THE PROPERTY, AND THE REMAINDER TO BE
DISTRIBUTED AMONG THE SECURED AND UNSECURED CREDITORS, AND APPLIED ON
THEIR CLAIMS, AS THEIR INTERESTS MAY APPEAR.' 

"IT IS SUGGESTED THAT PAYMENT OF TAXES AND KEEPING THE PROPERTY IN
REPAIR TAKES THE INCOME FROM THE MORTGAGEE, AND THAT THE MORTGAGOR
ALONE MAY BE BENEFITED THEREBY; THAT IF THE MORTGAGOR EXERCISES THE
OPTION TO PURCHASE THE PROPERTY AT ITS APPRAISED VALUE, HE WILL SECURE
THE PROPERTY FREE OF TAX LIENS WHICH OTHERWISE MIGHT HAVE ACCRUED
AGAINST IT.  BUT IT MUST BE ASSUMED THAT THE MORTGAGOR WILL NOT GET THE
PROPERTY FOR LESS THAN ITS ACTUAL VALUE.  THE ACT PROVIDES THAT UPON
THE CREDITOR'S REQUEST THE PROPERTY MUST BE REAPPRAISED, OR SOLD AT
PUBLIC AUCTION; AND THE MORTGAGEE MAY BY BIDDING AT SUCH SALE FULLY
PROTECT HIS INTEREST.  NON-PAYMENT OF TAXES MAY IMPERIL THE TITLE. 
PAYMENTS FOR UPKEEP ARE ESSENTIAL TO THE PRESERVATION OF THE PROPERTY. 
THESE PAYMENTS PRESCRIBED BY THE ACT ARE IN ACCORDANCE WITH THE COMMON
PRACTICE IN FORECLOSURE PROCEEDINGS WHERE THE PROPERTY IS IN THE HANDS
OF RECEIVERS." 

MR. JUSTICE MCREYNOLDS CONCURS IN THE RESULT. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :























UNITED GAS CO. V. TEXAS, 303 U.S. 123 


NO. 13.  ARGUED OCTOBER 15, 18, 1937.  REARGUED DECEMBER 14, 15, 1937. 
DECIDED FEBRUARY 14, 1938.  - 89 S.W.2D 1094, AFFIRMED. 


1.  PROCEDURE OF A STATE COMMISSION IN FIXING THE RATE OF A PUBLIC
UTILITY; OF A STATE COURT OF FIRST INSTANCE IN A REVIEW BY A TRIAL DE
NOVO; AND OF A STATE APPELLATE COURT IN REVIEWING THE JUDGMENT
SUSTAINING THE RATE,  - HELD CONSISTENT WITH DUE PROCESS UNDER THE
FOURTEENTH AMENDMENT.  PP. 128 ET SEQ., 138. 

2.  IT IS NOT THE FUNCTION OF THIS COURT, IN REVIEWING A JUDGMENT OF
A STATE COURT, TO DETERMINE WHETHER THE PROCEDURE IN THAT COURT WAS IN
ACCORDANCE WITH THE STATE LAW; THE FINAL JUDGMENT OF THE STATE COURT
DETERMINES THAT IT WAS.  P. 139. 

3.  THE POWER OF A STATE OVER THE PROCEDURE OF ITS COURTS INCLUDES
THE POWER TO REQUIRE THAT ISSUES OF FACT BE DECIDED BY JURY, EVEN IN A
COMPLICATED AND DIFFICULT CASE INVOLVING THE ADEQUACY OF A RATE FIXED
FOR A PUBLIC UTILITY.  P. 139. 

4.  ON A TRIAL OF A RATE CASE IN WHICH THE ISSUE OF CONFISCATION WAS
PUT BEFORE A JURY ON A GENERAL CHARGE WITH RESPECT TO THE ELEMENTS TO
BE CONSIDERED IN DETERMINING WHETHER THE RATE WOULD YIELD A FAIR RETURN
ON THE VALUE OF THE COMPANY'S PROPERTY USED AND USEFUL IN THE PUBLIC
SERVICE, - HELD THAT THE COMPANY WAS NOT ENTITLED UNDER THE FOURTEENTH
AMENDMENT TO HAVE SPECIAL ISSUES FRAMED AND SUBMITTED COVERING SOME BUT
NOT ALL OF THE ITEMS INVOLVED IN THE DETERMINATION.  P. 141. 

5.  THIS COURT WILL REVIEW THE FINDINGS OF FACT BY A STATE COURT (1)
WHERE A FEDERAL RIGHT HAS BEEN DENIED AS A RESULT OF A FINDING SHOWN BY
THE RECORD TO BE WITHOUT EVIDENCE TO SUPPORT IT, AND (2) WHERE A
CONCLUSION OF LAW AS TO A FEDERAL RIGHT AND FINDINGS OF FACT ARE SO
INTERMINGLED AS TO MAKE IT NECESSARY, IN ORDER TO PASS UPON THE FEDERAL
QUESTION, TO ANALYZE THE FACTS, SUCH ANALYSIS BEING MADE, NOT TO
DETERMINE ISSUES OF FACT ARISING ON CONFLICTING TESTIMONY OR INFERENCE,
BUT TO PERFORM THIS COURT'S PROPER FUNCTION IN DECIDING THE QUESTION OF
LAW ARISING UPON THE FINDINGS WHICH THE EVIDENCE PERMITS.  P. 142. 

6.  UPON A TRIAL OF THE ISSUE OF CONFISCATION, A PUBLIC UTILITY IS
NOT ENTITLED TO HAVE PROPERTY NOT USED OR USEFUL IN ITS BUSINESS
INCLUDED IN THE RATE BASE EVEN THOUGH IT WAS SO INCLUDED BY THE
COMMISSION THAT FIXED THE RATE.  P. 144. 

7.  IN FIXING A RATE FOR THE FUTURE, THE RATE-MAKING AUTHORITY, IN
ITS CONSIDERATION OF RETURNS FROM OPERATIONS, IS NOT LIMITED TO A
PARTICULAR YEAR - ESPECIALLY A YEAR OF ABNORMAL ECONOMIC CONDITIONS;
AND SIMILARLY, A TRIAL COURT MAY CONSIDER THE RESULTS OF THE UTILITY'S
OPERATIONS FOR A SERIES OF YEARS, INCLUDING THOSE INTERVENING BETWEEN
THE TIME OF PROMULGATION OF THE RATE, AND THE TIME OF TRIAL, AND
DETERMINE THE ISSUE OF CONFISCATION IN THE LIGHT OF THE AVERAGE RETURN
THUS SHOWN.  P. 145. 

8.  IN ESTIMATING WHAT WILL BE THE RETURNS FROM A RATE WHICH HAS NOT
BEEN PUT INTO EFFECT, A COURT IS ENTITLED TO A REASONABLE BASIS FOR
PREDICTION, ESPECIALLY IN VIEW OF A CONTEMPLATED EMERGENCE FROM A
PERIOD OF EXTREME ECONOMIC DEPRESSION.  P. 145. 

UNITED GAS PUBLIC SERVICE CO. V. TEXAS ET AL. 

APPEAL FROM THE COURT OF CIVIL APPEALS FOR THE THIRD SUPREME JUDICIAL
DISTRICT OF TEXAS. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT SUSTAINING AN ORDER OF THE
RAILROAD COMMISSION OF TEXAS FIXING A RATE FOR THE APPELLANT GAS
COMPANY IN THE CITY OF LAREDO.  THE SUPREME COURT OF TEXAS DECLINED TO
GRANT A WRIT OF ERROR.  WITH RESPECT TO THE VALIDITY OF A PROVISION OF
THE ORDER MAKING THE QUESTIONED RATE RETROACTIVE, THIS COURT IS EQUALLY
DIVIDED. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

APPELLANT, UNITED GAS PUBLIC SERVICE COMPANY, CHALLENGES THE VALIDITY
OF A RATE FIXED BY THE RAILROAD COMMISSION OF TEXAS FOR NATURAL GAS
SUPPLIED BY APPELLANT FOR DOMESTIC USES IN THE CITY OF LAREDO. 

THE CITY COUNCIL OF LAREDO, ON DECEMBER 15, 1931, ENACTED AN
ORDINANCE FIXING GAS RATES WHICH INCLUDED A RATE OF 40 CENTS PER 1000
CUBIC FEET FOR DOMESTIC CONSUMPTION, WITH A PROVISION FOR A DISCOUNT OF
10 PER CENT. ON PAYMENT OF BILLS WITHIN TEN DAYS, THE ORDINANCE TO
BECOME EFFECTIVE ON JANUARY 1, 1932.  THE RATE HAD PREVIOUSLY BEEN 75
CENTS PER M.C.F. WITH A 10 PER CENT. DISCOUNT FOR PAYMENT WITHIN TEN
DAYS.  THE TEXAS BORDER GAS COMPANY, WHICH WAS SUPPLYING NATURAL GAS TO
CONSUMERS IN LAREDO, FILED AN APPEAL WITH THE RAILROAD COMMISSION AND
POSTED THE REQUIRED SUPERSEDEAS BOND IN ACCORDANCE WITH THE PROVISIONS
OF ARTICLES 6058 AND 6059 OF THE REVISED CIVIL STATUTES OF TEXAS
(1925).  FN1  THE CONDITION OF THE BOND WAS THAT THE COMPANY SHOULD
REFUND TO THE CITY FOR THE BENEFIT OF CONSUMERS ANY EXCESS OF RATES
COLLECTED "OVER AND ABOVE THE RATES AND CHARGES THAT SHALL BE FINALLY
DETERMINED TO BE A FAIR AND REASONABLE RETURN UPON THE VALUE OF ITS
PROPERTY USED AND USEFUL IN SUPPLYING NATURAL GAS AND NATURAL GAS
SERVICE TO THE CITY OF LAREDO." 

PRIOR TO THE HEARING BEFORE THE COMMISSION, THE SOUTH TEXAS GAS
COMPANY, WHICH OWNED AND OPERATED THE TRANSMISSION PROPERTIES AND
TRANSPORTED THE GAS SOLD TO THE TEXAS BORDER GAS COMPANY AT THE LAREDO
CITY GATE, WAS MADE A PARTY TO THE PROCEEDING.  THE TEXAS BORDER GAS
COMPANY APPLIED TO THE CITY FOR AN INCREASE OF RATES AND, BECAUSE OF
THE CITY'S FAILURE TO ACT, TOOK AN APPEAL TO THE COMMISSION AS THE
STATUTE PROVIDED.  THE TWO APPEALS WERE CONSOLIDATED.  THE UNITED GAS
PUBLIC SERVICE COMPANY, A DELAWARE CORPORATION, ENTERED ITS APPEARANCE
ON BOTH APPEALS ALLEGING THAT IT HAD ACQUIRED THE PROPERTIES OF BOTH
COMPANIES.  THE COMMISSION, BY ORDER OF JUNE 13, 1933, FIXED A RATE OF
55 CENTS PER M.C.F. WITH A PENALTY OF 10 PER CENT. FOR NON-PAYMENT
WITHIN TEN DAYS, AND THE ORDER WAS MADE RETROACTIVE TO JANUARY 1,
1932.  2 P.U.R. (N.S.)  503. 

THE UNITED GAS PUBLIC SERVICE COMPANY THEN BROUGHT SUIT IN THE
DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF TEXAS
TO RESTRAIN THE ENFORCEMENT OF THE COMMISSION'S ORDER.  ON JULY 26,
1933, THE STATE OF TEXAS, THE MEMBERS OF THE COMMISSION AND THE CITY
INSTITUTED THE PRESENT SUIT IN THE DISTRICT COURT OF TRAVIS COUNTY IN
THE NATURE OF AN APPEAL UNDER ARTICLE 6059 FN2  FOR THE PURPOSE OF
PROTECTING THE JURISDICTION OF THE STATE COURT AND OF ENFORCING THE
COMMISSION'S ORDER IF DETERMINED TO BE VALID.  THE STATE COURT
THEREUPON STAYED ALL PROCEEDINGS BY THE COMMISSION, OR BY THE OFFICIALS
OF THE STATE AND CITY, TO ENFORCE THE COMMISSION'S ORDER UNTIL THE
DETERMINATION OF THE SUIT.  ON AUGUST 1, 1933, THE DISTRICT COURT OF
THE UNITED STATES COMPOSED OF THREE JUDGES, 28 U.S.C. 380, STAYED ALL
PROCEEDINGS IN THAT COURT PENDING THE FINAL DETERMINATION OF THE SUIT
IN THE STATE COURT.  SUBJECT TO THE ORDER OF THE STATE COURT, THE
COMPANY HAS CONTINUED TO CHARGE ITS 75 CENT RATE. 

THE TRIAL IN THE STATE COURT RESULTED IN A JUDGMENT ON APRIL 24,
1934, WHICH SUSTAINED THE COMMISSION'S ORDER OF JUNE 13, 1933, EXCEPT
SO FAR AS ITS RATE WAS MADE RETROACTIVE TO JANUARY 1, 1932, THAT PART
OF THE ORDER BEING HELD INVALID.  THE COMPANY THEN APPEALED TO THE
COURT OF CIVIL APPEALS, WHICH RENDERED ITS JUDGMENT ON OCTOBER 30,
1935, REFORMING THE JUDGMENT OF THE TRIAL COURT SO AS TO DECLARE THE
RETROACTIVE PORTION OF THE COMMISSION'S ORDER VALID AND ENFORCEABLE AND
AFFIRMING THE JUDGMENT AS THUS MODIFIED.  89 S.W.(2D) 1094.  THE
SUPREME COURT OF THE STATE REFUSED WRIT OF ERROR. 

A MOTION TO DISMISS THE APPEAL TAKEN TO THIS COURT FROM THE JUDGMENT
OF THE COURT OF CIVIL APPEALS WAS DENIED.  301 U.S. 667.  UPON HEARING,
THE COURT ORDERED REARGUMENT, NOTING THAT IT ESPECIALLY DESIRED TO HEAR
THE PARTIES ON THE STATE OF THE EVIDENCE AS TO THE EFFECT OF THE
APPLICATION OF THE COMMISSION'S RATE TO THE YEARS 1932 AND 1933, THAT
IS, AS TO THE REVENUES AND EXPENSES FOR THOSE YEARS ON THAT BASIS, AND
AS TO THE EFFECT UPON THE RIGHTS OF THE APPELLANT, WITH RESPECT TO
THOSE YEARS, OF THE BOND GIVEN ON ITS APPEAL TO THE COMMISSION.  302
U.S. 647.  REARGUMENT HAS BEEN HAD ACCORDINGLY. 

APPELLANT, INVOKING THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF
THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION, CONTENDS THAT IN
THE STATE PROCEEDINGS IT HAS BEEN DENIED PROCEDURAL DUE PROCESS AND
ALSO THAT THE PRESCRIBED RATE IS CONFISCATORY. 

THE PROCEEDINGS BEFORE THE COMMISSION AND ITS RULINGS.  THE
COMMISSION GAVE A FULL HEARING.  IT RECEIVED VOLUMINOUS EVIDENCE
OFFERED BY APPELLANT AND THE CITY AS TO EVERY PHASE OF THE CONTROVERSY
AND THEIR COUNSEL WERE FULLY HEARD IN ARGUMENT.  THE OPINION OF THE
COMMISSION REVIEWS THE HISTORY OF THE UTILITY FROM THE TIME THAT THE
TEXAS BORDER GAS COMPANY RECEIVED ITS FRANCHISE FROM THE CITY IN 1909. 
THE COMMISSION FOUND THE INTERRELATION OF THE COMPANIES CONCERNED AND
THAT THE PRESENT APPELLANT, WHICH HAD BECOME THE OWNER OF THE
PROPERTIES OF THE FORMER OPERATING COMPANIES, WAS ITSELF A UNIT OF THE
UNITED GAS SYSTEM.  IT WAS IN VIEW OF THE "INTERRELATED COMPANY
OPERATION AND OWNERSHIP," THAT THE GATHERING, TRANSMISSION AND
DISTRIBUTION PROPERTIES USED AND USEFUL IN SERVING THE CITY OF LAREDO
WERE VALUED AS A COMBINED PROPERTY.  AS CONSUMERS IN A NUMBER OF OTHER
COMMUNITIES WITHIN THE LAREDO AREA WERE ALSO SERVED, IT BECAME
NECESSARY TO ALLOCATE TO LAREDO ITS APPROPRIATE PROPORTION.  METHODS OF
ALLOCATION WERE SUBMITTED BY THE RESPECTIVE PARTIES AND THE COMMISSION
ADOPTED A WEIGHTED AVERAGE PER CENT., WHICH HAD BEEN TAKEN BY THE
CITY'S ENGINEER AS AN APPROXIMATE MEAN BETWEEN TWO PERCENTAGES USED BY
THE COMPANY'S ENGINEER, AS COMING THE CLOSEST TO A FAIR AND CORRECT
ALLOCATION.  EVIDENCE OF HISTORICAL COST AND OF REPRODUCTION COST NEW
LESS DEPRECIATION WAS SUBMITTED.  THE COMPANY'S APPRAISAL ON THE BASIS
OF REPRODUCTION COST NEW, LESS DEPRECIATION, WAS $1,231,601.  THE
APPRAISAL OF THE CITY'S ENGINEER ON THE SAME BASIS WAS $810,698.  THE
CITY ADDUCED EVIDENCE SHOWING THE DEPRECIATED HISTORICAL COST AS OF
JULY 31, 1932, TO BE $709,991.23. 

THE COMMISSION FOR THE PURPOSE OF ITS VALUATION DIVIDED THE
PROPERTIES INTO THREE GROUPS, (A) GATHERING SYSTEM, (B) TRANSMISSION
SYSTEM, AND (C) DISTRIBUTION SYSTEM.  THE COMMISSION STATED AND
CONSIDERED THE RESPECTIVE APPRAISALS OF EACH GROUP.  WHILE THE CITY
INCLUDED AN ALLOWANCE OF $124,668 AS THE DEPRECIATED COST OF THAT
PORTION OF THE TRANSMISSION LINES EXTENDING FROM PESCADITO JUNCTION TO
THE JENNINGS FIELD, A DISTANCE OF ABOUT 26 MILES, THE COMMISSION FOUND
"THAT THIS LINE WAS USED ONLY ONE DAY DURING THE TWELVE MONTHS' PERIOD
ENDING JULY 31, 1932, IN TRANSPORTING GAS TO LAREDO," AND FURTHER THAT
"THE CONDITION OF THIS LINE IS SUCH THAT IT COULD NEITHER SAFELY NOR
PROFITABLY TRANSPORT THE NECESSARY VOLUME OF GAS TO THE CITY."  THE
COMMISSION CONCLUDED THAT, IF THE COMPANY'S PROPERTIES WERE REPRODUCED,
THAT SECTION OF THE LINE WOULD NOT BE NECESSARY. 

THE COMMISSION THEN CONSIDERED THE QUESTIONS OF WORKING CAPITAL, OF
GOING CONCERN VALUE AND OF ACCRUED DEPRECIATION.  AFTER REFERRING TO
THE RESPECTIVE ESTIMATES, THE COMMISSION DECIDED THAT "THE OVER-ALL PER
CENT. CONDITION" OF THE PROPERTIES WAS 78 PER CENT. 

THE COMMISSION'S CONCLUSION WAS THAT THE TOTAL "PRESENT FAIR VALUE"
OF THE PROPERTIES WAS $885,000.  THE COMMISSION SAID: 

"IN ARRIVING AT A DECISION AND MAKING AN ORDER HEREIN THAT IS DEEMED
BY THE COMMISSION TO BE JUST AND REASONABLE, WE HAVE CAREFULLY AND
FULLY CONSIDERED ALL THE EVIDENCE PRESENTED AND ALL THE FACTS AND
CIRCUMSTANCES REFLECTED BY THE RECORD HEREIN; AND UPON GIVING DUE
CONSIDERATION TO ALL THE ELEMENTS OF VALUE INHERING IN THE PROPERTY
INVOLVED IN THIS PROCEEDING, HAVE VALUED THE COMPANY'S PROPERTIES AS AN
OPERATING CONCERN, WITH BUSINESS ATTACHED; HAVE MADE AMPLE ALLOWANCE
FOR MATERIALS AND SUPPLIES, WORKING CASH, AND GENERAL OVERHEADS; AND
HAVE INCLUDED IN SUCH VALUE THE PESCADITO-JENNINGS TRANSMISSION LINE
AND THE WEST JENNINGS GATHERING SYSTEM (ALTHOUGH THE RECORD CLEARLY
DISCLOSES THAT THESE LAST TWO NAMED PROPERTY ITEMS ARE NEITHER BEING
USED, NOR ARE THEY NECESSARY AS STANDBY EQUIPMENT), AND WE FIND THE
PRESENT FAIR VALUE OF THE PROPERTIES OF THE COMPANY USED, AND USEFUL IN
THE GATHERING, TRANSPORTING AND DISTRIBUTING OF NATURAL GAS WITHIN THE
CITY OF LAREDO, TEXAS, TO BE IN THE SUM OF $885,000." 

THE COMMISSION FIXED THE ANNUAL DEPRECIATION RATE WHICH SHOULD BE
ALLOWED AT 3 PER CENT.  THE COMMISSION ALSO FOUND THAT AN ANNUAL RATE
OF RETURN OF 7 PER CENT.  ON THE PRESENT VALUE OF THE PROPERTIES WAS
ADEQUATE. 

WITH RESPECT TO "AVAILABLE REVENUE," THE COMMISSION SAID THAT THE
COMPANY HAD PRESENTED A "SETUP" OF OPERATING REVENUES AND EXPENSES FOR
THE TWELVE MONTHS' PERIOD ENDING JULY 31, 1932, ONLY.  ON THE OTHER
HAND, THE CITY HAD PRESENTED A SIMILAR "SETUP" COVERING THE YEARS
ENDING JUNE 30, 1929, 1930 AND 1931, AND FOR THE YEAR ENDING JULY 31,
1932 - A PERIOD OF FOUR YEARS.  THE COMMISSION WAS OF THE OPINION THAT
THE ONE YEAR ENDING JULY 31, 1932, SHOULD NOT BE TAKEN AS A TEST
PERIOD.  IT WAS BELIEVED TO BE A MATTER OF COMMON KNOWLEDGE THAT "FROM
A GENERAL BUSINESS STANDPOINT THE YEAR 1932 WAS THE WORST YEAR SINCE
1929."  THE CITY'S EXHIBIT WAS DEEMED TO SHOW THAT THE FISCAL YEAR 1931
WAS ALSO SUBNORMAL, AND THE COMMISSION CONCLUDED THAT NEITHER THAT
YEAR, NOR AN AVERAGE OF THOSE TWO YEARS, SHOULD BE TAKEN AS AN ADEQUATE
TEST.  THE COMMISSION ALSO THOUGHT THAT IT WOULD BE UNFAIR TO THE
COMPANY TO TAKE THE YEAR 1930 OR AN AVERAGE OF THE THREE YEARS, 1930,
1931 AND 1932, AS IT APPEARED THAT THE YEAR 1930 WAS THE BEST YEAR IN
POINT OF GROSS REVENUES THAT THE COMPANY HAD EXPERIENCED SINCE 1928. 
ON THE WHOLE, THE COMMISSION THOUGHT THAT JUSTICE WOULD BE DONE IF AN
AVERAGE OF REVENUES AND EXPENSES FOR THE FOUR FISCAL YEARS, 1929, 1930,
1931 AND 1932, SHOULD BE TAKEN AS THE TEST PERIOD FOR THE COMPUTATION
UPON WHICH A FAIR RETURN SHOULD BE PREDICATED. 

IT HAD BEEN STIPULATED BY THE PARTIES AT THE OUTSET THAT A RATE OF
FIVE CENTS PER M.C.F. WAS A FAIR AND REASONABLE PRICE OF GAS AT THE
WELL.  WHILE THE COMMISSION DID NOT MAKE SPECIFIC FINDINGS WITH RESPECT
TO REVENUES AND EXPENSES FOR THE YEARS WHICH IT TOOK AS A BASIS, IT DID
REJECT CERTAIN ALLOWANCES FOR WHICH THE COMPANY CONTENDED.  AS TO AN
ALLOWANCE OF A GATHERING CHARGE IN RELATION TO GAS PURCHASED FROM THE
CAROLINA-TEXAS FIELD, THE GATHERING LINES IN WHICH WERE THE PROPERTY OF
AN AFFILIATE, THE COMMISSION ALLOWED A CHARGE OF ONE-HALF OF ONE PER
CENT. INSTEAD OF THE ONE PER CENT. WHICH THE COMPANY SOUGHT.  WITH
RESPECT TO ITEMS NOT PARTICULARIZED BY THE COMMISSION, WE THINK THAT IT
SUBSTANTIALLY APPEARS FROM ITS OPINION THAT THE COMMISSION, SAVE AS TO
THE ITEMS DISALLOWED, ACCEPTED THE CITY'S EXHIBIT WHICH COVERED THE
REVENUES AND EXPENSES FOR THE FOUR-YEAR PERIOD AND STATED SEPARATELY
THE ITEMS CONTAINED THEREIN WHICH WERE DEEMED TO BE QUESTIONABLE. 

THE COMMISSION FOUND THE RATE, FOR ALL DOMESTIC USES, OF 55 CENTS PER
M.C.F., THE MINIMUM BILL PER USER PER MONTH TO BE ONE DOLLAR AND THE
PENALTY FOR NON-PAYMENT WITHIN TEN DAYS TO BE 10 PER CENT., TO BE "JUST
AND REASONABLE."  THE COMMISSION FOUND THAT ITS APPLICATION WOULD
PRODUCE "A NET RETURN IN EXCESS OF SEVEN PER CENT (7%) PER ANNUM ON THE
PRESENT FAIR VALUE OF THE PROPERTIES, AFTER PROVISION FOR OPERATIONS
AND RESERVE FOR DEPRECIATION."  THE COMMISSION ORDERED THAT THE RATE
SHOULD BE EFFECTIVE FROM AND AFTER JANUARY 1, 1932, AND THAT THERE
SHOULD BE REFUNDED TO THE CITY OF LAREDO FOR THE BENEFIT OF DOMESTIC
GAS CONSUMERS THE DIFFERENCE BETWEEN THE AMOUNT COLLECTED UNDER THE
EXISTING RATE AND THE AMOUNT THAT WOULD HAVE BEEN DUE BY CONSUMERS
UNDER THE COMMISSION'S ORDER. 

THE PROCEEDINGS IN THE DISTRICT COURT OF TRAVIS COUNTY.  - THE TRIAL
WAS ESSENTIALLY DE NOVO.  IT WAS BEGUN IN MARCH, 1934, AND WAS HAD
BEFORE A JURY, A MOTION BY THE APPELLANTS TO HAVE THE JURY DISCHARGED
AND THE CAUSE DETERMINED BY THE COURT BEING OVERRULED.  THE ENTIRE
RECORD BEFORE THE COMMISSION WAS PLACED IN EVIDENCE AND ADDITIONAL
TESTIMONY WAS INTRODUCED AS TO PROPERTY VALUES, DEPRECIATION RESERVE
ACCRUAL, REVENUES, EXPENSES, RATES OF RETURN, ETC.  IT APPEARS THAT THE
EVIDENCE WAS BROUGHT AS NEAR AS POSSIBLE TO THE TIME OF TRIAL.  THE
EVIDENCE AS TO REVENUES AND EXPENSES WHICH APPELLANT ADDUCED AGAIN
RELATED TO THE YEAR ENDING JULY 31, 1932, AND THE YEARS 1932 AND 1933,
AND THE APPELLEES INTRODUCED EVIDENCE FOR THE FOUR-YEAR PERIOD, TO
WHICH THEY HAD ADDRESSED THEIR COMPUTATIONS BEFORE THE COMMISSION, AND
ALSO FOR THE YEAR 1933.    AT THE CLOSE OF THE EVIDENCE, APPELLANT
MOVED FOR A PEREMPTORY INSTRUCTION IN ITS FAVOR AND ALSO FOR THE
SUSPENSION OF THE COMMISSION'S ORDER FOR THE YEARS 1932 AND 1933. 
THESE MOTIONS WERE OVERRULED.  APPELLANT THEN MOVED TO HAVE THE CASE
SUBMITTED TO THE JURY ON "SPECIAL ISSUES" AND NOT UPON A "SPECIAL
CHARGE."  THE COURT STATED THAT IN ITS VIEW ITS CHARGE WAS ON "SPECIAL
ISSUE" AND HENCE COMPLIED WITH THE REQUEST.  THE APPELLANT THEN MOVED
TO SUBMIT TO THE JURY CERTAIN SPECIAL ISSUES WHICH WERE SEPARATELY
STATED; THAT IS, THAT THE JURY SHOULD MAKE SEPARATE FINDINGS AS TO THE
VALUES OF COMPONENT PARTS OF APPELLANT'S PROPERTY DURING THE YEARS 1932
AND 1933, RESPECTIVELY, ALSO AS TO THE AMOUNT OF THE NECESSARY
MATERIALS AND SUPPLIES AND CASH WORKING CAPITAL, AND THE AMOUNT WHICH
SHOULD BE ALLOWED FOR "GOING VALUE," AND AS TO THE AVERAGE COST OF GAS
AT THE WELL MOUTH AND THE PROPER ANNUAL ALLOWANCE FOR THE DEPRECIATION
RESERVE.  THESE REQUESTS WERE REFUSED. 

THE TRIAL COURT SUBMITTED TO THE JURY A SINGLE SPECIAL ISSUE AS
FOLLOWS: 

"DO YOU FIND THAT THE ORDER OF THE RAILROAD COMMISSION OF TEXAS
BEARING DATE JUNE 13, 1933, PROVIDING FOR A FIFTY-FIVE CENT GAS RATE TO
RESIDENTIAL CONSUMERS WITHIN THE CITY OF LAREDO, TEXAS, UNDER THE FACTS
INTRODUCED IN EVIDENCE BEFORE YOU, IS UNREASONABLE AND UNJUST AS TO
DEFENDANT, UNITED GAS PUBLIC SERVICE COMPANY.  ANSWER THIS QUESTION
'YES' OR 'NO'." 

THE COURT PREFACED THAT SUBMISSION WITH THE FOLLOWING DEFINITIONS AND
INSTRUCTIONS: 

THAT BY "FAIR RETURN" WAS MEANT THAT THE APPELLANT WAS ENTITLED TO
EARN A RATE "ON THE PRESENT FAIR VALUE OF ITS PROPERTY WHICH IT EMPLOYS
FOR THE CONVENIENCE OF THE PUBLIC EQUAL TO THAT GENERALLY BEING MADE AT
THE SAME TIME WITHIN THE SAME GENERAL PART OF THE COUNTRY UPON
INVESTMENTS IN OTHER BUSINESS UNDERTAKINGS WHICH ARE ATTENDED BY LIKE
RISKS AND UNCERTAINTIES."  THAT THE RATE OF RETURN SHOULD BE REASONABLY
SUFFICIENT "TO ASSURE CONFIDENCE IN THE FINANCIAL SOUNDNESS OF THE
UTILITY AND SHOULD BE ADEQUATE UNDER EFFICIENT AND ECONOMICAL
MANAGEMENT TO MAINTAIN AND SUPPORT ITS CREDIT AND ENABLE IT TO RAISE
MONEY NECESSARY FOR THE PROPER DISCHARGE OF ITS DUTIES." 

THAT BY "FAIR VALUE" WAS MEANT "THE REASONABLE WORTH OF THE PROPERTY
AT THIS TIME THAT IS BEING USED AND USEFUL IN THE PUBLIC SERVICE." 
THAT BY "USED AND USEFUL" WAS MEANT THAT IT EMBRACES ALL THE PROPERTY
"ACTUALLY BEING USED" IN THAT SERVICE AND ALSO SUCH PROPERTY AS WAS
REASONABLY NECESSARY TO PERMIT "CONTINUOUS AND EFFICIENT SERVICE." 

THAT BY "OPERATION EXPENSES" WAS MEANT SUCH EXPENSES AS WERE INCURRED
IN THE OPERATION OF APPELLANT'S PROPERTY IN FURNISHING GAS TO THE
PEOPLE OF LAREDO. 

THAT BY "ANNUAL DEPRECIATION" WAS MEANT THE AMOUNT PER ANNUM THAT WAS
REASONABLY NECESSARY TO COMPENSATE FOR THE WEARING OUT AND ANY
NECESSARY REPLACEMENTS AND RETIREMENTS OF APPELLANT'S PROPERTY. 

THAT BY "REPRODUCTION COST NEW" WAS MEANT "THE COST TO THE OWNER
UNDER THE CONDITIONS WHICH MAY REASONABLY BE EXPECTED TO EXIST IF THE
PROPERTY WERE TO BE REPRODUCED NEW." 

THAT BY "GOING VALUE" WAS MEANT THE ADDED VALUE OF APPELLANT'S
PROPERTY AS A WHOLE, USED AND USEFUL FOR SERVING THE CITY, OVER THE SUM
OF THE VALUES OF ITS COMPONENT PARTS, BY REASON OF THE FACT "THAT IT IS
AN OPERATING, ASSEMBLED AND ESTABLISHED PROPERTY, FUNCTIONING WITH A
TRAINED PERSONNEL, A CO-ORDINATED PLANT AND PROPERTY, WITH CUSTOMERS
ATTACHED, AND ITS BUSINESS ESTABLISHED." 

REFERRING TO THE FINDINGS OF THE COMMISSION, AND THE TRANSCRIPTS OF
EVIDENCE AND EXHIBITS, WHICH WERE BEFORE THE COMMISSION AND HAD BEEN
INTRODUCED IN EVIDENCE, THE COURT TOLD THE JURY THAT THE SAME MIGHT BE
CONSIDERED FOR THE PURPOSE OF ASSISTING THE JURY IN DETERMINING WHETHER
THE COMMISSION'S ORDER WAS UNREASONABLE AND UNJUST AND FOR NO OTHER
PURPOSE.  THE COURT CONCLUDED ITS CHARGE WITH THE FOLLOWING
INSTRUCTIONS: 

"YOU ARE INSTRUCTED THAT THE BURDEN OF PROOF IS UPON THE DEFENDANT,
UNITED GAS PUBLIC SERVICE COMPANY, TO SHOW BY CLEAR AND SATISFACTORY
EVIDENCE THAT THE RATE PROMULGATED BY THE RAILROAD COMMISSION IN ITS
SAID ORDER OF JUNE 13, 1933, IS UNREASONABLE AND UNJUST AS TO IT. 

"YOU ARE FURTHER INSTRUCTED THAT IN DETERMINING YOUR ANSWER TO SAID
ISSUE IN THE LIGHT OF ALL THE EVIDENCE INTRODUCED IN THIS CASE THE
DEFENDANT, UNITED GAS PUBLIC SERVICE COMPANY, IS ENTITLED TO RECEIVE A
FAIR RETURN AT THIS TIME ON THE PRESENT FAIR VALUE OF ITS PROPERTY THAT
IS USED AND USEFUL IN THE PUBLIC SERVICE AFTER FIRST DEDUCTING ALL
NECESSARY OPERATING EXPENSES AND A FAIR AND REASONABLE AMOUNT FOR THE
ANNUAL DEPRECIATION OF SAID PROPERTY, AND THAT IN CONSIDERING WHAT IS A
FAIR VALUE OF SAID PROPERTY YOU WILL TAKE INTO CONSIDERATION ALL
ELEMENTS OF VALUE THAT HAVE BEEN INTRODUCED IN EVIDENCE BEFORE YOU,
INCLUDING REPRODUCTION COST NEW OF SAID PROPERTY AND THE AMOUNT OF
GOING VALUE (IF ANY) THAT INHERES IN SAID PROPERTY. 

"BY 'UNREASONABLE AND UNJUST' IS MEANT THAT THE RATE PRESCRIBED AND
ADOPTED IN THE SAID ORDER OF THE RAILROAD COMMISSION WAS SO LOW AS TO
HAVE NOT PROVIDED FOR A FAIR RETURN UPON THE FAIR VALUE OF DEFENDANT'S
PROPERTY USED AND USEFUL IN SUPPLYING THE SERVICE FURNISHED BY THE
UNITED GAS PUBLIC SERVICE COMPANY TO THE INHABITANTS WITHIN THE CITY OF
LAREDO, TEXAS." 

APPELLANT TOOK EXCEPTIONS TO THE COURT'S CHARGE AND TO THE REFUSAL OF
ITS REQUESTS. 

THE JURY ANSWERED THE SPECIAL ISSUE IN THE NEGATIVE.  APPELLANT'S
MOTION FOR JUDGMENT NON OBSTANTE VEREDICTO WAS DENIED AND JUDGMENT WAS
ENTERED. 

THE COURT IN ITS JUDGMENT RULED THAT THE PROVISION IN THE
COMMISSION'S ORDER REQUIRING THE REFUND OF THE EXCESS COLLECTIONS OVER
THE COMMISSION'S RATE WAS A SEPARABLE PART, AND AS THE COURT WAS OF THE
OPINION THAT THE COMMISSION'S RETROACTIVE APPLICATION OF ITS RATE TO
JANUARY 1, 1932, AND THE PROVISION FOR A REFUND, WERE INVALID, THAT
PART OF THE COMMISSION'S ORDER WAS SET ASIDE WITHOUT PREJUDICE TO THE
RIGHT OF THE CITY TO RECOVER THE EXCESS COLLECTIONS, SHOULD THAT
PROVISION BE SUSTAINED ON APPEAL.  THE JUDGMENT THEN ENJOINED APPELLANT
FROM MAKING ANY CHARGE IN EXCESS OF THE COMMISSION'S RATE, WITH
DIRECTION FOR SUPERSEDEAS PENDING APPEAL UPON THE FILING OF A DESCRIBED
BOND.  A MOTION FOR A NEW TRIAL, IN WHICH APPELLANT AGAIN STATED ITS
OBJECTIONS TO THE COURT'S RULINGS, WAS DENIED. 

THE RULING OF THE COURT OF CIVIL APPEALS.  - THE APPELLATE COURT
REACHED THE CONCLUSION THAT APPELLANT HAD NOT ONLY FAILED TO ESTABLISH
ITS CLAIM FOR REVERSAL, AND FOR JUDGMENT IN ITS FAVOR, BUT THAT "WHEN
VIEWED IN THE LIGHT OF THE PRESUMPTION IN FAVOR OF THE VALIDITY OF THE
COMMISSION'S RATE ORDER, AND OF THE QUANTUM AND CHARACTER OF PROOF
REQUIRED TO OVERCOME SUCH PRESUMPTION, THE EVIDENCE ADDUCED WAS
INSUFFICIENT, AS A MATTER OF LAW, TO SHOW THAT THE 55[ RATE ORDER WAS
EITHER UNJUST AND UNREASONABLE OR CONFISCATORY."  IN THAT VIEW, THE
COURT ADDED, "ALL QUESTIONS OF PRACTICE," PRESENTED BY APPELLANT, "GO
OUT OF THE CASE." 

THE COURT NOTED THE FACT THAT THE COMMISSION HAD RELUCTANTLY INCLUDED
IN THE VALUATION OF THE PROPERTY THE ITEMS OF $124,688, REPRESENTING
THE PESCADITO-JENNINGS TRANSMISSION PIPE LINE, AND ALSO HAD "INCLUDED
THE WEST JENNINGS GATHERING SYSTEM AT A VALUE OF $10,342", ALTHOUGH THE
COMMISSION FOUND THAT THESE "TWO PROPERTY ITEMS ARE NEITHER USED NOR
ARE THEY NECESSARY AS STANDBY EQUIPMENT."  THE COURT ALSO SAID THAT
THERE WAS EVIDENCE BEFORE BOTH THE TRIAL COURT AND THE COMMISSION WHICH
TENDED TO SHOW "THE FAIR VALUE OF APPELLANT'S PROPERTY TO BE ABOUT
$700,000; AND THAT A 2% ANNUAL ACCRUAL FOR DEPRECIATION WOULD BE FAIR
AND REASONABLE."  REFERRING TO THE EVIDENCE AS TO OPERATING REVENUES
AND EXPENDITURES, THE COURT SET FORTH TABLES BASED ON THE COMPUTATIONS
OF AN EXPERT ACCOUNTANT OF THE APPELLEES SHOWING AVERAGE NET REVENUES
FOR THE FOUR-YEAR PERIOD AND THE YEAR 1933.  THESE CALCULATIONS WERE ON
THE BASIS OF APPELLANT'S EXISTING 75 CENT RATE.  THE COURT THUS STATED
THE CRITERION WHICH IT APPLIED IN OVERRULING APPELLANT'S CONTENTIONS: 

"THE RULE IS SETTLED THAT RATES ARE NOT BASED UPON THE RESULTS OF
BUSINESS OF ANY ONE YEAR ALONE, BUT UPON WHAT IS ESTIMATED AS BEING THE
AVERAGE BUSINESS OVER A PERIOD OF YEARS; THE FUTURE BEING GAUGED AS
NEARLY AS POSSIBLE BY THE PAST EXPERIENCE....  IT IS ALSO THE RULE THAT
ONLY ACTUAL EXPERIENCE UNDER THE RATE COMPLAINED OF CAN FURNISH ANY
REAL CRITERION OR GUIDE AS TO THE EFFECT OF THE RATE ON THE BUSINESS;
AND THAT THIS EXPERIENCE SHOULD BE OBTAINED BY A PRACTICAL TEST FOR
SUCH A PERIOD OF TIME AS WILL UNDER THE FACTS OF THE PARTICULAR
BUSINESS DETERMINE THE MATTERS WHICH ARE OF DOUBTFUL OR UNCERTAIN
INFLUENCE.  IN ABSENCE OF AN ACTUAL TEST OF THE RATE, THE COURT ON
APPEAL MUST RESOLVE ALL DOUBTS AGAINST THE COMPLAINING PARTY; PARE DOWN
VALUATIONS UNSPARINGLY; AND THE RATE MUST APPEAR TO BE CLEARLY
CONFISCATORY, OR UNJUST AND UNREASONABLE BEFORE THE COURT SHOULD BY
INJUNCTION RESTRAIN ITS ENFORCEMENT IN ADVANCE OF ACTUAL EXPERIENCE OF
THE PRACTICAL RESULTS OF THE RATE.  AND WHILE THE EQUAL PROTECTION, THE
DUE COURSE, AND THE DUE PROCESS CLAUSES OF THE FUNDAMENTAL LAWS OF BOTH
STATE AND NATION GUARD AGAINST THE TAKING OF, OR COMPELLING OF THE USE
OF PRIVATE PROPERTY FOR PUBLIC SERVICE WITHOUT JUST COMPENSATION, STILL
THEY DO NOT ASSURE THE PUBLIC UTILITY THE RIGHT UNDER ALL CONDITIONS
AND CIRCUMSTANCES TO HAVE A RETURN UPON THE VALUE OF THE PROPERTY SO
USED.  IF ACTUAL EXPERIENCE FOR A PROPER PERIOD OF TIME UNDER THE RATE
COMPLAINED OF SHOULD REVEAL SUFFICIENT REASONS, THE RATE ORDER MAY THEN
BE CHANGED THROUGH PROPER CHANNELS." 

PROCEEDING ON THIS PRINCIPLE, THE COURT SAID: 

"IN THE INSTANT CASE APPELLANT HAS CONTINUOUSLY CHARGED AND COLLECTED
THE 75[ RATE; HENCE NO ACTUAL TEST HAS BEEN MADE UNDER THE LOWER 55[
RATE.  AN ACTUAL TEST OF THE LOWER RATE MIGHT HAVE RESULTED IN A LARGER
RETURN BY BRINGING ABOUT AN INCREASE IN APPELLANT'S BUSINESS, AND
MANIFESTLY THIS COURT WOULD NOT BE WARRANTED IN HOLDING THAT THE LOWER
RATE WAS EITHER CONFISCATORY, OR UNJUST AND UNREASONABLE, AS A MATTER
OF LAW, IN ADVANCE OF AN ACTUAL TEST OF THE RATE;...  SO WHEN THE
PROPERTY VALUATION IS PARED DOWN TO THIS LOWEST VALUATION (ABOUT
$700,000), AND DOUBTFUL ITEMS OF EXPENSES ARE DEDUCTED, THE NET
REVENUES RECEIVED BY APPELLANT UNDER THE 75[ RATE FOR THE YEAR ENDING
DECEMBER 31, 1933, WOULD AFFORD MORE THAN A 11% RETURN.  AND
CALCULATIONS BASED ON THE $700,000 VALUATION AND THE ESTIMATED
DIFFERENCE IN REVENUES BETWEEN THE 55[ RATE AND THE 75[ RATE, SHOW A
RETURN OF MORE THAN 7% FOR THE YEAR 1933.  BUT EVEN IF THE LOWER RATE
DID NOT OR WOULD NOT YIELD A RETURN OF 7% FOR THE YEAR 1933, THIS COURT
WOULD NOT BE WARRANTED IN ENJOINING THE ENFORCEMENT OF THE RATE,
BECAUSE THE TEST PERIOD WAS TOO SHORT, NO ACTUAL TEST WAS MADE UNDER
THE LOWER RATE AND THE UNDISPUTED EVIDENCE SHOWED THE YEAR TO BE
ABNORMAL." 

IN CONCLUDING ITS OPINION, THE COURT HELD THAT THE TRIAL COURT ERRED
IN ITS RULING THAT THE RETROACTIVE PROVISION OF THE COMMISSION'S ORDER
WAS INVALID.  THE APPELLATE COURT SAID THAT ON THE APPEAL TO THE
COMMISSION TO REVIEW THE CITY'S ORDINANCE, THE COMMISSION WAS
AUTHORIZED TO SUSPEND THE RATE FIXED BY THE CITY AND TO REQUIRE THE
UTILITY TO GIVE A BOND "ON SUCH TERMS AND CONDITIONS AS THE COMMISSION
MAY DIRECT."  THE TRIAL COURT HAD REFUSED TO RECEIVE THE BOND IN
EVIDENCE BUT IT APPEARED IN THE RECORD.  THE APPELLATE COURT QUOTED ITS
CONDITION AND NOTED THAT THE SUPERSEDEAS BOND FILED ON APPEAL TO THAT
COURT WAS SIMILARLY CONDITIONED.  THE COURT HELD THAT THE COMMISSION
HAD THE POWER UPON DETERMINING THAT THE RATE FIXED BY THE CITY'S
ORDINANCE WAS UNREASONABLE TO "SUBSTITUTE ITS OWN JUST AND REASONABLE
RATE THEREFOR, AND TO MAKE IT EFFECTIVE AS OF DATE OF THE CITY
ORDINANCE RATE FOR WHICH IT WAS SUBSTITUTED." 

THE COURT OF CIVIL APPEALS THEN ENTERED JUDGMENT SUSTAINING THE
RETROSPECTIVE AND REFUND PROVISION OF THE COMMISSION'S ORDER AND
AFFIRMING THE JUDGMENT OF THE TRIAL COURT AS THUS MODIFIED. 

FIRST. - THE QUESTION OF PROCEDURAL DUE PROCESS.  - THERE IS NO
GROUND FOR HOLDING THAT APPELLANT DID NOT HAVE A FAIR HEARING BEFORE
THE COMMISSION.  APPELLANT'S EVIDENCE WAS RECEIVED AND WEIGHED; ITS
ARGUMENTS WERE HEARD AND CONSIDERED.  THE COMMISSION MADE FINDINGS AS
TO THE VALUE OF APPELLANT'S PROPERTY, THE PERMISSIBLE ALLOWANCE FOR
DEPRECIATION AND THE RATE OF RETURN.  THE AMOUNTS OF REVENUES AND
EXPENSES FOR THE FOUR YEARS WHICH THE COMMISSION TOOK AS A BASIS
SUFFICIENTLY APPEAR, AS ALREADY STATED, FROM THE CITY'S EXHIBIT TO
WHICH THE COMMISSION REFERRED IN ITS OPINION.  THE ESTIMATED AMOUNT OF
REVENUE AT THE COMMISSION'S RATE APPEARS FROM A SIMPLE CALCULATION,
APPLYING THE RATE OF RETURN TO THE RATE BASE AFTER THE ANNUAL ALLOWANCE
FOR DEPRECIATION.  IN THE COMMISSION'S PROCEDURE THERE WAS NO LACK OF
THE DUE PROCESS REQUIRED BY THE FEDERAL CONSTITUTION.  RAILROAD
COMMISSION OF CALIFORNIA V. PACIFIC GAS & ELECTRIC CO., 302 U.S. 388;
LOS ANGELES GAS CO. V. RAILROAD COMMISSION, 289 U.S. 287, 304, 305;
WEST OHIO GAS CO. V. PUBLIC UTILITIES COMM'N (NO. 1), 294 U.S. 63, 70. 

WITH RESPECT TO THE PROCEEDINGS IN THE STATE COURTS, APPELLANT URGES
THAT THE CASE WAS NOT TRIED AND DETERMINED AS REQUIRED BY STATE LAW,
AND WE ARE REFERRED TO THE STATE STATUTES AND THE DECISIONS OF THE
TEXAS COURTS AS TO THE PROPER PROCEDURE IN THE TRIAL COURT AND ON
APPEAL.  IT IS NOT OUR FUNCTION, IN REVIEWING A JUDGMENT OF THE STATE
COURT, TO DECIDE LOCAL QUESTIONS.  WE ARE CONCERNED SOLELY WITH
ASSERTED FEDERAL RIGHTS.  THE FINAL JUDGMENT OF THE STATE COURT IN THE
INSTANT CASE MUST BE TAKEN AS DETERMINING THAT THE PROCEDURE ACTUALLY
ADOPTED SATISFIED ALL STATE REQUIREMENTS.  JOHN V. PAULLIN, 231 U.S.
583, 585; LEE V. CENTRAL OF GEORGIA RY. CO., 252 U.S. 109, 110; CENTRAL
UNION CO. V. EDWARDSVILLE, 269 U.S. 190, 194, 195.    AS TO THE
REQUIREMENT OF DUE PROCESS UNDER THE FEDERAL CONSTITUTION, APPELLANT
CONTENDS THAT IT WAS DENIED THE INDEPENDENT JUDICIAL JUDGMENT UPON THE
FACTS AND LAW TO WHICH IT WAS ENTITLED.  SEE OHIO VALLEY WATER CO. V.
BEN AVON BOROUGH, 253 U.S. 287; BLUEFIELD WATER WORKS CO. V. PUBLIC
SERVICE COMM'N, 262 U.S. 679; STATE CORPORATION COMM'N V. WICHITA GAS
CO., 290 U.S. 561, 569; ST. JOSEPH STOCK YARDS CO. V. UNITED STATES,
298 U.S. 38, 49.  THE PROCEEDING IN THE STATE COURT UNDOUBTEDLY
PURPORTED TO AFFORD AN INDEPENDENT JUDICIAL REVIEW.  AS THE COURT OF
CIVIL APPEALS OF TEXAS SAID IN THE INSTANT CASE, THE TRIAL OF THE
ISSUES WHETHER THE RATE WAS UNREASONABLE OR CONFISCATORY WAS "DE
NOVO."  APPELLANT ITSELF RECOGNIZES THAT THE TRIAL "WAS ESSENTIALLY DE
NOVO, NEW AND FULL TESTIMONY BEING INTRODUCED AS TO PROPERTY VALUE,
DEPRECIATION RESERVE ACCRUAL, REVENUES, EXPENSES, RATES OF RETURN,
ETC."  APPELLANT'S EVIDENCE WAS RECEIVED BY THE TRIAL COURT AND
APPELLANT'S CONTENTIONS WERE HEARD.  THE QUESTION WHETHER DUE PROCESS
IN THE COURT'S PROCEDURE WAS ACCORDED THUS COMES TO THE MODE OF TRIAL;
THAT IS, (1) THE PROPRIETY OF A TRIAL BY JURY, AND (2) THE MANNER IN
WHICH THE ISSUES WERE SUBMITTED TO THE JURY. 

WE DO NOT FAIL TO APPRECIATE THE DIFFICULTY IN PRESENTING TO A JURY
THE COMPLICATED ISSUES IN A RATE CASE, ESPECIALLY WHERE, AS HERE, THE
EVIDENCE IS VOLUMINOUS, EMBRACING THE CONFLICTING VALUATIONS OF EXPERTS
AND A HOST OF DETAILS IN APPRAISALS AND IN ACCOUNTS OF OPERATIONS, WITH
ELABORATE TABULATIONS.  EVEN IN TRIALS OF SUCH CASES WITHOUT A JURY THE
SERVICE OF A SPECIAL MASTER FOR THE ANALYSIS OF THE DETAILS IN EVIDENCE
WITH RESPECT TO VALUES AND RETURN HAS BEEN FOUND ADVISABLE.  WE HAVE
HAD ABUNDANT OCCASION TO BECOME FAMILIAR WITH THE DIFFICULTY OF SUCH
DETERMINATIONS.  BUT WE ARE NOT DEALING WITH QUESTIONS OF POLICY AS TO
PROCEDURE.  THE STATE IS ENTITLED TO DETERMINE THE PROCEDURE OF ITS
COURTS, SO LONG AS IT PROVIDES THE REQUISITE DUE PROCESS.  AND ON THAT
QUESTION WE HAVE NEVER HELD THAT IT IS BEYOND THE POWER OF THE STATE TO
PROVIDE FOR THE TRIAL BY A JURY OF QUESTIONS OF FACT BECAUSE THEY ARE
COMPLICATED.  CASES AT LAW TRIABLE BY A JURY IN THE FEDERAL COURTS
OFTEN INVOLVE MOST DIFFICULT AND COMPLEX QUESTIONS, AS, FOR EXAMPLE, IN
PATENT CASES AT LAW PRESENTING ISSUES OF VALIDITY AND INFRINGEMENT. 
SEE TUCKER V. SPALDING, 13 WALL.  453, 455; KEYES V. GRANT, 118 U.S.
25, 36, 37; ROYER V. SCHULTZ BELTING CO., 135 U.S. 319, 325; COUPE V.
ROYER, 155 U.S. 565, 578, 579.  MOST DIFFICULT QUESTIONS OF FACT IN
PROTRACTED TRIALS, WITH MUCH CONFLICTING EXPERT TESTIMONY, ARE NOT
INFREQUENTLY PRESENTED IN CRIMINAL CASES TRIABLE BY JURY.  THE ISSUE OF
LIFE OR DEATH MAY BE DECIDED IN SUCH A CASE.  WE HAVE HELD THAT A STATE
MAY MODIFY A TRIAL BY JURY OR ABOLISH IT ALTOGETHER, WALKER V.
SAUVINET, 92 U.S. 90; MAXWELL V. DOW, 176 U.S. 581; FRANK V. MANGUM,
237 U.S. 309, BUT NEVER THAT THE TIME-HONORED METHOD OF RESOLVING
QUESTIONS OF FACT BY A JURY MUST BE ABANDONED BY A STATE UNDER
COMPULSION OF THE FEDERAL CONSTITUTION.  AND WE FIND NO WARRANT FOR
SUCH A RULING NOW. 

THE QUESTION REMAINS AS TO THE MANNER IN WHICH THE INSTANT CASE WAS
SUBMITTED TO THE JURY.  THE SPECIAL ISSUE WAS SUBMITTED WHETHER THE
COMMISSION'S RATE WAS "UNREASONABLE AND UNJUST AS TO DEFENDANT."  THIS
SUBMISSION, UNDER THE COURT'S INSTRUCTION IN RELATION TO THE IMPORT OF
THE PHRASE "UNREASONABLE AND UNJUST," COVERED, AS APPELLANT CONCEDED AT
THIS BAR, THE ISSUE WHETHER THE RATE WAS CONFISCATORY.  APPELLANT DID
NOT ASK TO HAVE THE ISSUE OF CONFISCATION SUBMITTED BY THE USE OF THAT
PRECISE TERM.  THE QUESTION THEN IS AS TO THE DENIAL OF THE SUBMISSION
OF THE PARTICULAR ISSUES WHICH APPELLANT REQUESTED AND AS TO THE
CHARACTER OF THE INSTRUCTIONS GIVEN BY THE TRIAL COURT. 

THE SPECIAL ISSUES WHICH APPELLANT REQUESTED WERE FOR FINDINGS AS TO
THE VALUE OF COMPONENT PARTS OF APPELLANT'S PROPERTY DURING THE YEARS
1932 AND 1933 AND AS TO THE AMOUNTS NECESSARY TO COVER MATERIAL AND
SUPPLIES, WORKING CAPITAL, GOING VALUE, AND CERTAIN OTHER ITEMS.  IT
WILL BE OBSERVED THAT THESE SPECIAL ISSUES DID NOT EMBRACE ALL THE
QUESTIONS WHICH THE JURY SHOULD CONSIDER, AS FOR EXAMPLE, THE QUESTIONS
OF OPERATING REVENUES, OPERATING EXPENSES AND RETURN FOR THE PERIOD TO
WHICH THE EVIDENCE BEFORE THE COURT APPROPRIATELY RELATED AND NOT
SIMPLY FOR THE YEARS 1932 AND 1933.  IF TRIAL BY JURY WAS PERMISSIBLE,
AS WE HOLD IT WAS, WE CANNOT SAY - PUTTING ASIDE QUESTIONS OF CORRECT
PRACTICE UNDER THE STATE LAW NOT REVIEWABLE HERE - THAT APPELLANT WAS
ENTITLED UNDER THE FEDERAL CONSTITUTION TO HAVE SPECIAL ISSUES FRAMED
AND SUBMITTED TO THE JURY, MUCH LESS THAT APPELLANT COULD DEMAND THAT
THE PARTICULAR ITEMS IT MENTIONED SHOULD BE SINGLED OUT AND SPECIALLY
PASSED UPON.  WE CONSIDER THAT QUESTION IN THE LIGHT OF THE TOTAL POWER
WHICH THE STATE POSSESSES TO PROVIDE FOR JURY TRIALS, AND FOR THE
MANNER OF CONDUCTING THEM, AND NOT WITH RESPECT TO ANY ALLEGED
LIMITATIONS IMPOSED BY STATE STATUTES.  SEE CASTILLO V. MCCONNICO, 168
U.S. 674, 683. 

WE HAVE STATED AT SOME LENGTH, AND NEED NOT REPEAT, THE GENERAL
INSTRUCTIONS GIVEN BY THE TRIAL COURT.  THE JURY WERE INSTRUCTED AS TO
THE RIGHT OF APPELLANT TO RECEIVE A FAIR RETURN ON THE FAIR VALUE OF
ITS PROPERTY THAT IS USED AND USEFUL IN THE PUBLIC SERVICE AND THAT THE
JURY SHOULD TAKE INTO CONSIDERATION ALL ELEMENTS OF VALUE THAT HAD BEEN
INTRODUCED IN EVIDENCE, INCLUDING THE REPRODUCTION COST NEW OF THE
PROPERTY AND THE AMOUNT OF GOING VALUE, IF ANY, THAT INHERED IN IT. THE
COURT DEFINED THE TERMS THAT IT USED, SUCH AS "FAIR RETURN," "FAIR
VALUE," "USED AND USEFUL," "OPERATION EXPENSES," "ANNUAL DEPRECIATION,"
"REPRODUCTION COST NEW" AND "GOING VALUE," AND THE COURT EXPLAINED WHAT
WOULD CONSTITUTE AN ADEQUATE RATE OF RETURN.  NO INSTRUCTIONS WERE
GIVEN WHICH COULD BE TAKEN IN ANY SENSE TO CONFLICT WITH APPELLANT'S
FEDERAL RIGHT; ON THE CONTRARY, THE JURY, IF IT DULY FOLLOWED THE
INSTRUCTIONS, COULD NOT BUT ENFORCE THAT RIGHT. 

APPELLANT, WHILE OBJECTING TO THE CHARGE UPON GROUNDS THAT ARE NOT
IMPRESSIVE, DID NOT SUBMIT AND REQUEST AMPLIFIED INSTRUCTIONS WHICH
MIGHT HAVE AIDED THE JURY'S CONSIDERATION.  APPELLANT WAS APPARENTLY
CONTENT TO OBJECT TO THE PERTINENT INSTRUCTIONS THAT WERE GIVEN, AND TO
A GENERAL CHARGE, AND TO STAND UPON ITS LIMITED REQUESTS AS TO SPECIAL
ISSUES. 

UPON SUCH A RECORD WE ARE UNABLE TO HOLD THAT THERE WAS A DENIAL OF
FEDERAL RIGHT SO FAR AS PROCEDURAL DUE PROCESS IS CONCERNED. 

SECOND. - THE QUESTION OF CONFISCATION.  - WE HAVE SAID THAT OUR
INQUIRY IN RATE CASES COMING HERE FROM A STATE COURT "IS WHETHER THE
ACTION OF THE STATE OFFICIALS IN THE TOTALITY OF ITS CONSEQUENCES IS
CONSISTENT WITH THE ENJOYMENT BY THE REGULATED UTILITY OF A REVENUE
SOMETHING HIGHER THAN THE LINE OF CONFISCATION."  WEST OHIO GAS CO. V.
PUBLIC UTILITIES COMM'N (NO. 1), SUPRA.  THIS COURT WILL REVIEW THE
FINDINGS OF FACT BY A STATE COURT (1) WHERE A FEDERAL RIGHT HAS BEEN
DENIED AS THE RESULT OF A FINDING SHOWN BY THE RECORD TO BE WITHOUT
EVIDENCE TO SUPPORT IT, AND (2) WHERE A CONCLUSION OF LAW AS TO A
FEDERAL RIGHT AND FINDINGS OF FACT ARE SO INTERMINGLED AS TO MAKE IT
NECESSARY, IN ORDER TO PASS UPON THE FEDERAL QUESTION, TO ANALYZE THE
FACTS.  KANSAS CITY SOUTHERN RY. CO. V. ALBERS COMMISSION CO., 223 U.S.
573, 591; NORTHERN PACIFIC RY. CO. V. NORTH DAKOTA, 236 U.S. 585, 593;
NORFOLK & WESTERN RY. CO. V. CONLEY, 236 U.S. 605, 609, 610; AETNA LIFE
INSURANCE CO. V. DUNKEN, 266 U.S. 389, 394.  WE MAKE THAT ANALYSIS, NOT
TO DETERMINE ISSUES OF FACT ARISING ON CONFLICTING TESTIMONY OR
INFERENCES, AND THUS TO USURP THE FUNCTION OF THE STATE COURT AS A
TRIER OF THE FACTS, BUT TO PERFORM OUR OWN PROPER FUNCTION IN DECIDING
THE QUESTION OF LAW ARISING UPON THE FINDINGS WHICH THE EVIDENCE
PERMITS.  KANSAS CITY SOUTHERN RY. CO. V. ALBERS COMMISSION CO.,
SUPRA. 

HERE, THE ISSUES OF FACT WERE DETERMINED IN THE TRIAL COURT.  COUNSEL
AGREE THAT UNDER THE STATE PRACTICE THE COURT OF CIVIL APPEALS HAD NO
AUTHORITY TO MAKE FINDINGS OF FACT.  "WHERE THE EVIDENCE IS WITHOUT
CONFLICT, IT MAY RENDER JUDGMENT.  BUT WHERE THERE IS ANY CONFLICT IN
THE EVIDENCE ON A MATERIAL ISSUE, IT HAS NO AUTHORITY TO SUBSTITUTE ITS
FINDINGS OF FACT FOR THOSE OF THE TRIAL COURT."  POST V. STATE, 106
TEX. 500, 501; 171 S.W. 707.  THE COURT OF CIVIL APPEALS HELD NOT ONLY
THAT APPELLANT HAD FAILED TO MAKE GOOD ITS CLAIM THAT IT WAS ENTITLED
TO JUDGMENT IN ITS FAVOR BUT THAT, HAVING REGARD TO THE PRESUMPTION IN
FAVOR OF THE COMMISSION'S RATE ORDER AND THE CLEAR AND SATISFACTORY
PROOF REQUIRED TO OVERCOME SUCH PRESUMPTION, APPELLANT'S EVIDENCE WAS
INSUFFICIENT AS MATTER OF LAW TO SHOW THAT THE COMMISSION'S RATE WAS
CONFISCATORY.  THE REASONING OF THE COURT OF CIVIL APPEALS WAS DIRECTED
TO THE DECISION OF THOSE LEGAL QUESTIONS.  UPON THE ISSUE OF
CONFISCATION, THE JUDGMENT OF THE TRIAL COURT WAS AFFIRMED AND THUS ITS
FINDING OF FACT WAS NOT DISTURBED. 

SEPARATE QUESTIONS ARE PRESENTED (1) AS TO THE VALUE OF APPELLANT'S
PROPERTY AND (2) AS TO ITS RETURN FROM OPERATIONS.  AS TO THE FIRST,
THE COMMISSION FOUND THE VALUE TO BE $885,000.  BUT THE COMMISSION
STATED THAT THIS VALUATION INCLUDED PROPERTY WHICH WAS NEITHER USED NOR
USEFUL.  IF IT BE ASSUMED THAT THE COMMISSION IN THE EXERCISE OF ITS
LEGISLATIVE DISCRETION MIGHT INCLUDE THAT PROPERTY IN FIXING A
"REASONABLE RATE," STILL APPELLANT WOULD NOT BE ENTITLED TO ITS
INCLUSION ON THE ISSUE OF CONFISCATION.  WHILE THE EVIDENCE AS TO VALUE
WAS CONFLICTING, WE ARE UNABLE TO CONCLUDE THAT THERE WAS NOT ADEQUATE
EVIDENCE TO SUSTAIN A FINDING THAT THE TOTAL PROPERTY USED AND USEFUL,
AFTER MAKING DEDUCTIONS FOR THE PORTIONS NOT OF THAT SORT, WAS WORTH
NOT MORE THAN $750,000. 

APPELLANT COMPLAINS THAT THE COURT OF CIVIL APPEALS BASED ITS
CONCLUSION UPON A VALUATION OF "$700,000" WHICH APPELLANT CONTENDS IS
INADMISSIBLE, AND THAT THE APPELLATE COURT MISAPPLIED THE RULE AS TO
THE BURDEN OF PROOF IN HOLDING THAT THE VALUE MUST BE "PARED DOWN
UNSPARINGLY" TO THAT AMOUNT.  BUT WE MUST DISTINGUISH "BETWEEN WHAT WAS
SAID AND WHAT WAS DONE," BETWEEN "DICTUM AND DECISION," BETWEEN
REASONING AND CONCLUSION.  DAYTON POWER & LIGHT CO. V. PUBLIC UTILITIES
COMM'N, 292 U.S. 290, 298, 302.  WHAT THE APPELLATE COURT DID WAS TO
AFFIRM THE JUDGMENT OF THE TRIAL COURT AND IF, AS WE THINK, A VALUATION
OF APPELLANT'S PROPERTY AT $750,000 WOULD HAVE ADEQUATE SUPPORT IN THE
EVIDENCE, WE NEED GO NO FURTHER IN RELATION TO THAT PART OF THE CASE. 

WITH RESPECT TO RETURN FROM OPERATIONS, THE CRUCIAL QUESTION IS
WHETHER APPELLANT WAS ENTITLED TO HAVE THE RATE FOR THE FUTURE FIXED
WITH SOLE REGARD TO THE RESULT OF OPERATIONS IN THE YEARS 1932 AND
1933, AS APPELLANT CONTENDS, OR IT WAS PERMISSIBLE TO FIX THE RATE UPON
A CONSIDERATION OF THE RETURNS FOR A NUMBER OF YEARS, THAT IS, FOR THE
FOUR YEARS PRIOR TO JULY 31, 1932, AS TAKEN BY THE COMMISSION, OR FOR
THAT PERIOD AND THE YEARS 1932 AND 1933, AS SHOWN BY THE EVIDENCE
BEFORE THE TRIAL COURT.  THE COMMISSION HELD ITS HEARING IN THE LATTER
PART OF 1932 AND MADE ITS ORDER IN JUNE, 1933.  APART FROM THE QUESTION
RAISED BY THE RETROSPECTIVE FEATURE OF ITS ORDER, WE THINK IT MANIFEST
THAT IN FIXING ITS RATE FOR THE FUTURE THE COMMISSION WAS NOT LIMITED
TO THE RESULTS OF OPERATIONS FOR THE YEAR ENDING JULY, 1932.  NOT ONLY
WAS THAT BUT A SINGLE YEAR, BUT THE COMMISSION REGARDED IT AS AN
ABNORMAL YEAR AND THE PROPRIETY OF ITS RULING IN THAT RESPECT IS
SUPPORTED BY COMMON KNOWLEDGE OF ECONOMIC CONDITIONS AT THAT TIME. 
SIMILARLY, THE TRIAL COURT, SITTING IN THE SPRING OF 1934, WAS NOT
BOUND TO LIMIT ITS VISION TO THE RESULTS OF 1932 AND 1933.  WHAT WOULD
HAPPEN IN THE FUTURE WAS NECESSARILY A MATTER OF PROPHECY.  THE
COMMISSION'S RATE HAD NOT BEEN PUT INTO EFFECT AND IN ESTIMATING WHAT
WOULD BE THE CONSEQUENCE OF THE REQUIREMENT THE COURT WAS ENTITLED TO A
REASONABLE BASIS FOR PREDICTION, ESPECIALLY IN VIEW OF A CONTEMPLATED
EMERGENCE FROM A PERIOD OF EXTREME DEPRESSION.  AS THE COURT OF CIVIL
APPEALS OBSERVED, THE WAY WAS OPEN TO THE APPELLANT TO SEEK A CHANGE IN
THE RATE ON PROOF OF ACTUAL EXPERIENCE.  OF COURSE, APPELLANT WAS
ENTITLED TO TAKE ITS CHANCES ON APPELLATE REVIEW OF THE TRIAL COURT'S
JUDGMENT, BUT IT CANNOT COMPLAIN OF THE DELAY INCIDENT TO THAT REVIEW
AND ITS CASE MUST BE JUDGED AS IT STOOD BEFORE THE TRIAL COURT.  WE
HOLD THAT THERE WAS NO ERROR IN TAKING INTO CONSIDERATION THE RESULTS
OF APPELLANT'S OPERATIONS FOR THE YEARS 1929 TO 1933, INCLUSIVE,
ACCORDING TO THE EVIDENCE PRODUCED IN THE TRIAL COURT, AND IN
DETERMINING THE ISSUE OF CONFISCATION IN THE LIGHT OF THE AVERAGE
RETURN THUS SHOWN. 

APPELLEES INTRODUCED EVIDENCE TENDING TO SHOW THAT APPELLANT'S
OPERATING REVENUES, CALCULATED ON THE BASIS OF THE 55 CENT RATE AND
AFTER DEDUCTING THE OPERATING EXPENSES DEEMED TO BE ALLOWABLE AND THE
ANNUAL ALLOWANCE FOR DEPRECIATION, FOR THE YEARS ENDING JUNE 30, 1929,
1930, AND 1931, AND JULY 31, 1932, YIELDED NET AMOUNTS OF $106,815.36,
$123,293.02, $91,554.04, AND $48,556.88, RESPECTIVELY, AND FOR THE YEAR
1933, $46,371.85.  APPELLANT CONTENDS THAT ON THE BASIS OF THE 55 CENT
RATE ITS NET OPERATING REVENUE FOR 1932 WOULD HAVE BEEN BUT $10,086.25,
AND FOR 1933, $18,408.39.  WE DO NOT THINK IT NECESSARY, SO FAR AS
CONCERNS THE VALIDITY OF THE COMMISSION'S RATE IN ITS PROSPECTIVE
APPLICATION, TO EXTEND THIS OPINION BY STATING IN DETAIL THE
CONTENTIONS PRO AND CON AS TO THESE ESTIMATES, QUESTIONS WHICH LARGELY
RELATE TO THE PERMISSIBLE ALLOWANCES FOR OPERATING EXPENSES.  WE ARE
SATISFIED THAT IF WE CONSIDER THE RESULTS OF APPELLANT'S OPERATIONS FOR
THE ENTIRE PERIOD, 1929 TO 1933, THE EVIDENCE WAS ADEQUATE TO SUPPORT
THE JUDGMENT OF THE TRIAL COURT.    THIRD. - WITH RESPECT TO THE
QUESTION OF THE VALIDITY OF THAT PART OF THE COMMISSION'S ORDER WHICH
MADE ITS RATE RETROACTIVE TO JANUARY 1, 1932, CONSIDERED IN THE LIGHT
OF THE EVIDENCE RELATING TO THE INTERVENING PERIOD AND OF THE BOND
GIVEN ON THE APPEAL TO THE COMMISSION FROM THE CITY'S ORDINANCE, THIS
COURT IS EQUALLY DIVIDED AND THE JUDGMENT OF THE COURT OF CIVIL APPEALS
IN THAT RELATION IS ACCORDINGLY AFFIRMED.  JUDGMENT AFFIRMED. 

FN1  "ART.  6058.  APPEAL FROM CITY CONTROL.  - WHEN A CITY
GOVERNMENT HAS ORDERED ANY EXISTING RATE REDUCED, THE GAS UTILITY
AFFECTED BY SUCH ORDER MAY APPEAL TO THE COMMISSION BY FILING WITH IT
ON SUCH TERMS AND CONDITIONS AS THE COMMISSION MAY DIRECT, A PETITION
AND BOND TO REVIEW THE DECISION, REGULATION, ORDINANCE, OR ORDER OF THE
CITY, TOWN OR MUNICIPALITY.  UPON SUCH APPEAL BEING TAKEN THE
COMMISSION SHALL SET A HEARING AND MAY MAKE SUCH ORDER OR DECISION IN
REGARD TO THE MATTER INVOLVED THEREIN AS IT MAY DEEM JUST AND
REASONABLE.  THE COMMISSION SHALL HEAR SUCH APPEAL DE NOVO.  WHENEVER
ANY LOCAL DISTRIBUTING COMPANY OR CONCERN, WHOSE RATES HAVE BEEN FIXED
BY ANY MUNICIPAL GOVERNMENT, DESIRES A CHANGE OF ANY OF ITS RATES,
RENTALS OR CHARGES, IT SHALL MAKE ITS APPLICATION TO THE MUNICIPAL
GOVERNMENT WHERE SUCH UTILITY IS LOCATED AND SUCH MUNICIPAL GOVERNMENT
SHALL DETERMINE SAID APPLICATION WITHIN SIXTY DAYS AFTER PRESENTATION
UNLESS THE DETERMINATION THEREOF MAY BE LONGER DEFERRED BY AGREEMENT. 
IF THE MUNICIPAL GOVERNMENT SHOULD REJECT SUCH APPLICATION OR FAIL OR
REFUSE TO ACT ON IT WITHIN SAID SIXTY DAYS, THEN THE UTILITY MAY APPEAL
TO THE COMMISSION AS HEREIN PROVIDED.  BUT SAID COMMISSION SHALL
DETERMINE THE MATTERS INVOLVED IN ANY SUCH APPEAL WITHIN SIXTY DAYS
AFTER THE FILING BY SUCH UTILITY OF SUCH APPEAL WITH SAID COMMISSION OR
SUCH FURTHER TIME AS SUCH UTILITY SHALL IN WRITING AGREE TO, BUT THE
RATES FIXED BY SUCH MUNICIPAL GOVERNMENT SHALL REMAIN IN FULL FORCE AND
EFFECT UNTIL ORDERED CHANGED BY THE COMMISSION. 

"ART. 6059.  APPEAL FROM ORDERS.  - IF ANY GAS UTILITY OR OTHER PARTY
AT INTEREST BE DISSATISFIED WITH THE DECISION OF ANY RATE,
CLASSIFICATION, RULE, CHARGE, ORDER, ACT OR REGULATION ADOPTED BY THE
COMMISSION, SUCH DISSATISFIED UTILITY OR PARTY MAY FILE A PETITION
SETTING FORTH THE PARTICULAR CAUSE OF OBJECTION THERETO IN A COURT OF
COMPETENT JURISDICTION IN TRAVIS COUNTY AGAINST THE COMMISSION AS
DEFENDANT.  SAID ACTION SHALL HAVE PRECEDENCE OVER ALL OTHER CAUSES ON
THE DOCKET OF A DIFFERENT NATURE AND SHALL BE TRIED AND DETERMINED AS
OTHER CIVIL CAUSES IN SAID COURT.  EITHER PARTY TO SAID ACTION MAY HAVE
THE RIGHT OF APPEAL; AND SAID APPEAL SHALL BE AT ONCE RETURNABLE TO THE
APPELLATE COURT, AND SAID ACTION SO APPEALED SHALL HAVE PRECEDENCE IN
SAID APPELLATE COURT OF ALL CAUSES OF A DIFFERENT CHARACTER THEREIN
PENDING.  IF THE COURT BE IN SESSION AT THE TIME SUCH RIGHT OF ACTION
ACCRUES, THE SUIT MAY BE FILED DURING SUCH TERM AND STAND READY FOR
TRIAL AFTER TEN DAYS NOTICE.  IN ALL TRIALS UNDER THIS ARTICLE THE
BURDEN OF PROOF SHALL REST UPON THE PLAINTIFF, WHO MUST SHOW BY CLEAR
AND SATISFACTORY EVIDENCE THAT THE RATES, REGULATIONS, ORDERS,
CLASSIFICATIONS, ACTS OR CHARGES COMPLAINED OF ARE UNREASONABLE AND
UNJUST TO IT OR THEM." 

FN2  SEE NOTE 1. 

MR. JUSTICE REED TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, CONCURRING. 

ALTHOUGH I CONCUR IN SUSTAINING THE JUDGMENT OF THE COURT BELOW, I DO
NOT AGREE THAT THE RIGHTS OF THIS DELAWARE CORPORATION DOING BUSINESS
IN TEXAS ARE DERIVED FROM THE FOURTEENTH AMENDMENT FN1  OR THAT THE
FOURTEENTH AMENDMENT DEPRIVES TEXAS OF ITS CONSTITUTIONAL POWER TO
DETERMINE THE REASONABLENESS OF INTRA-STATE UTILITY RATES IN THAT
STATE. 

EVEN APPLYING THE FOURTEENTH AMENDMENT UNDER THE PREVAILING DOCTRINE,
I DO NOT BELIEVE THAT THIS COURT (APART FROM PROCEDURAL QUESTIONS) IS
CALLED UPON TO DO MORE THAN DETERMINE THE SOLE QUESTION OF
CONFISCATION.  ANY INDICATION BY THIS COURT OF THE VALUE OF THE
COMPANY'S PROPERTY WILL UNJUSTIFIABLY AFFECT AND CONTROL SUBSEQUENT
VALUATIONS FOR RATE MAKING PURPOSES.  FN2 

THE RECORD DISCLOSES A STRIKING ABSENCE OF SATISFACTORY EVIDENCE OF
THE ACTUAL COST OF THE COMPANY'S PROPERTIES; ITS FUNDED INDEBTEDNESS;
THE ACTUAL INVESTMENTS OF STOCKHOLDERS IN THE COMPANY; PROFITS IN PAST
YEARS; AND THE PERCENTAGE OF PAST PROFITS TO ACTUAL INVESTMENT.  THESE
MATTERS HAVE IMPORTANT BEARING UPON THE ISSUE OF CONFISCATION.  THERE
IS EVIDENCE THAT ONLY A PART OF THE COMPANY'S DEPRECIATION RESERVE,
ACCUMULATED OVER AND ABOVE EXPENDITURES FOR REPAIRS AND PROPERTY
MAINTENANCE, REACHES APPROXIMATELY $500,000 - OR OVER 40% TO 70% OF THE
VARIOUS ESTIMATED VALUES OF ALL THE COMPANY'S ASSETS.  IN ADDITION
APPELLANT HAS NOT SHOWN BEYOND A REASONABLE DOUBT THAT THERE IS AN
ACTUAL INVESTMENT OF STOCKHOLDERS - OVER AND ABOVE THE AMOUNT OF
BORROWED CAPITAL - WHICH COULD BE CONFISCATED.  FN3  APPELLANT HAS
OBVIOUSLY FAILED TO ESTABLISH ALL THE ELEMENTS NECESSARY TO PROVE
BEYOND A REASONABLE DOUBT  FN4  THAT THE RATE FIXED BY THE STATE WILL
RESULT IN CONFISCATION OF ITS PROPERTY. 

OPERATING EXPENSES.  - THE RECORD SHOWS THAT APPELLANT IS ONE OF MANY
CORPORATE ASSOCIATES AND AFFILIATES CONNECTED WITH THE ELECTRIC BOND
AND SHARE COMPANY AND THE UNITED GAS SYSTEM.  PRACTICALLY ALL OPERATING
EXPENSES APPEARED AS INTER-COMPANY CHARGES AMONG THESE ASSOCIATES,
AFFILIATES, ETC.  UNDER THESE CIRCUMSTANCES CONFISCATION CANNOT BE
ESTABLISHED MERELY BY PROOF THAT THE BOOKS OF APPELLANT SHOW ALLEGED
EXPENDITURES PURPORTING TO HAVE BEEN MADE BY OR THROUGH ITS AFFILIATES,
ASSOCIATES, ETC.  THE STRONG PRESUMPTION OF THE VALIDITY OF THESE RATES
- FIXED BY A STATE - CAN BE OVERCOME ONLY BY PROOF THAT EACH
EXPENDITURE, ALLEGED TO HAVE BEEN MADE OR INCURRED BY OR THROUGH AN
ASSOCIATE OR AFFILIATE, WAS IN FACT SO MADE OR INCURRED AND WAS FAIR
AND REASONABLE.  SUCH PROOF WAS NOT MADE IN THIS CASE.  AS AN
ILLUSTRATION, A WITNESS TESTIFYING FOR THE CITY SAID THAT IT WAS
IMPOSSIBLE FOR HIM TO ASCERTAIN PROPER OPERATING EXPENSES FOR THE YEAR
1933, BECAUSE HIS EXAMINATION WAS CONFINED TO THE SOUTH TEXAS BORDER
GAS COMPANY AND THE SOUTH TEXAS GAS COMPANY "AND ALL I SAW IN SUPPORT
OF THESE ITEMS WAS INTER-COMPANY INVOICES, AND I WAS NOT ABLE OR HAD NO
WAY OF DETERMINING WHETHER ITEMS WERE PROPER OR NOT." 

SINCE THE MAJOR PART OF APPELLANT'S INCOME IS ABSORBED BY ASSOCIATED
COMPANIES IN THE NAME OF "OPERATING EXPENSES" AND BY INTERCORPORATE
TRANSACTIONS, THE OPERATIONS AND EXPENSES OF THESE ASSOCIATES,
AFFILIATES, ETC., ARE BROUGHT WITHIN THE FIELD OF INQUIRY.  REFERRING
TO INTERCORPORATE TRANSACTIONS OF HOLDING COMPANIES, SUBSIDIARIES,
ASSOCIATES, AFFILIATES, ETC., THIS COURT HAS SAID: 

"IT IS URGED THAT AS THESE AVERMENTS WERE UNCONTRADICTED THEY
CONSTITUTE, WHEN TAKEN WITH THE FACTS PREVIOUSLY STATED, A PRIMA FACIE
CASE FOR THE REASONABLENESS OF THE RATE CHARGED.  THIS MIGHT WELL BE
TRUE WERE IT NOT FOR THE FACT OF UNITY OF OWNERSHIP AND CONTROL OF THE
PIPE LINE AND THE DISTRIBUTION SYSTEM.  AN AVERMENT OF NEGOTIATION AND
EFFORT TO PROCURE A REDUCTION IN THE WHOLESALE RATE MEANS LITTLE IN THE
LIGHT OF THE FACT THAT THE NEGOTIATORS ARE BOTH ACTING IN THE SAME
INTEREST, - THAT OF THE HOLDING COMPANY WHICH CONTROLS BOTH.  ALL OF
THESE FACTS SO AVERRED IN THE PLEADINGS WOULD BE FAR MORE PERSUASIVE
WITH RESPECT TO THE PROPRIETY OF THE RATE IF THE PARTIES WERE
INDEPENDENT OF EACH OTHER AND DEALING AT ARM'S LENGTH.  WHERE, HOWEVER,
THEY CONSTITUTE BUT A SINGLE INTEREST AND INVOLVE THE EMBARKATION OF
THE TOTAL CAPITAL IN WHAT IS IN EFFECT ONE ENTERPRISE, THE ELEMENTS OF
DOUBLE PROFIT AND OF THE REASONABLENESS OF INTER-COMPANY CHARGES MUST
NECESSARILY BE THE SUBJECT OF INQUIRY AND SCRUTINY BEFORE THE QUESTION
AS TO THE LAWFULNESS OF THE RETAIL RATE BASED THEREON CAN BE
SATISFACTORILY ANSWERED. 

"...  THE ARGUMENT IS MADE THAT THE PROOFS DEMANDED BY THE COMMISSION
WILL INVOLVE AN EXTENSIVE AND UNNECESSARY VALUATION OF THE PIPE-LINE
COMPANY'S PROPERTY AND AN ANALYSIS OF ITS BUSINESS, AND THAT THIS
BURDEN SHOULD NOT BE THROWN UPON APPELLANT.  WHETHER THIS IS SO WE NEED
NOT NOW DECIDE.  IT IS ENOUGH TO SAY THAT IN VIEW OF THE RELATIONS OF
THE PARTIES, AND THE POWER IMPLICIT THEREIN ARBITRARILY TO FIX AND
MAINTAIN COSTS AS RESPECTS THE DISTRIBUTING COMPANY WHICH DO NOT
REPRESENT THE TRUE VALUE OF THE SERVICE RENDERED, THE STATE AUTHORITY
IS ENTITLED TO A FAIR SHOWING OF THE REASONABLENESS OF SUCH COSTS,
ALTHOUGH THIS MAY INVOLVE A PRESENTATION OF EVIDENCE WHICH WOULD NOT BE
REQUIRED IN THE CASE OF PARTIES DEALING AT ARM'S LENGTH AND IN THE
GENERAL AND OPEN MARKET, SUBJECT TO THE USUAL SAFEGUARDS OF BARGAINING
AND COMPETITION."  FN5 

NOT ONLY DID APPELLANT FAIL TO PROVE THE REASONABLENESS OF ITS
INTERCOMPANY DEALINGS, BUT IT DID NOT - AS REQUESTED IN OPEN COURT -
PRODUCE A FULL LIST OF SALARIES PAID BY ITS ASSOCIATES, AFFILIATES,
ETC.  IT IS TRUE THAT EVIDENCE DID SHOW THAT SOME OF THE OFFICERS OF
ASSOCIATES, AFFILIATES, ETC., RECEIVED FROM $65,000 TO $100,000 A YEAR
BUT THERE WAS NO PROOF OF THE REASONABLENESS OF SUCH SALARIES OR OF
THEIR EFFECT UPON APPELLANT'S LOCAL GAS DISTRIBUTION EXPENSES. 

THIS COURT HAS PREVIOUSLY DECLARED THE IMPORTANCE OF SALARIES IN
DETERMINING THE QUESTION OF CONFISCATION IN CHICAGO & G.T. RY. CO. V.
WELLMAN, 143 U.S. 339, 345.  THERE IT WAS SAID: 

"OF WHAT DO THESE OPERATING EXPENSES CONSIST?  ARE THEY MADE UP
PARTIALLY OF EXTRAVAGANT SALARIES; FIFTY TO ONE HUNDRED THOUSAND
DOLLARS TO THE PRESIDENT, AND IN LIKE PROPORTION TO SUBORDINATE
OFFICERS?  SURELY, BEFORE THE COURTS ARE CALLED UPON TO ADJUDGE AN ACT
OF THE LEGISLATURE FIXING  ...  MAXIMUM  ...  RATES FOR RAILROAD
COMPANIES TO BE UNCONSTITUTIONAL,  ... THEY SHOULD BE FULLY ADVISED AS
TO WHAT IS DONE WITH THE RECEIPTS AND EARNINGS OF THE COMPANY.... WHILE
THE PROTECTION OF VESTED RIGHTS OF PROPERTY IS A SUPREME DUTY OF THE
COURTS, IT HAS NOT COME TO THIS, THAT THE LEGISLATIVE POWER RESTS
SUBSERVIENT TO THE DISCRETION OF ANY RAILROAD CORPORATION WHICH MAY, BY
EXORBITANT AND UNREASONABLE SALARIES, OR IN SOME OTHER IMPROPER WAY,
TRANSFER ITS EARNINGS INTO WHAT IT IS PLEASED TO CALL 'OPERATING
EXPENSES.'" 

WHEN A PUBLIC UTILITY CHOOSES TO PAY OUT A LARGE PART OF ITS
"OPERATING EXPENSES" TO CORPORATE ASSOCIATES, AFFILIATES, ETC., THESE
PAYMENTS MIGHT CONCEIVABLY BE USED TO DRAIN THE OPERATING COMPANY'S
INCOME AND TO INFLATE THE "OPERATING EXPENSES."  INFLATED OPERATING
EXPENSES INEVITABLY LEAD TO INFLATED RATES.  SINCE AFFILIATES,
ASSOCIATES, ETC., DO NOT ORDINARILY DEAL AT "ARM'S LENGTH" APPELLANT
HAD THE BURDEN OF PROVING THE FAIRNESS AND REASONABLENESS OF ALL
EXPENDITURES MADE OR CHARGED AS INTER-COMPANY TRANSACTIONS. 

DUE PROCESS AND TRIAL BY JURY.  - APPELLANT CONTENDED IN THE COURT
BELOW THAT "THE SUBMISSION OF THIS CASE  ...  TO A JURY WILL DEPRIVE
THIS DEFENDANT OF THAT CHARACTER OF HEARING AND TRIAL CONTEMPLATED
UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES AND OF THE
CONSTITUTION AND LAWS OF THE STATE OF TEXAS."  APPELLANT HERE FURTHER
INSISTS THAT OVER APPELLANT'S PROTEST, THE COURT BELOW DID SUBMIT THE
CAUSE TO A JURY "DESPITE THE RECOGNIZED INABILITY OF SUCH A BODY TO
DEAL ADEQUATELY WITH PROOF OF THAT NATURE  ..., DESPITE APPELLANT'S
VIGOROUS PROTEST AND EFFORTS TO EXTRICATE ITSELF FROM THIS SITUATION
..." 

THE CONSTITUTION OF THE UNITED STATES DOES NOT PROHIBIT TRIAL BY
JURY, BUT THE SEVENTH AMENDMENT, JUDICIALLY CONSTRUED AS A LIMITATION
ON THE FEDERAL GOVERNMENT, FN6  PROVIDES: 

"IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED
TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED, AND NO
FACT TRIED BY A JURY SHALL BE OTHERWISE REEXAMINED IN ANY COURT OF THE
UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW." 

THIS COURT SAID IN 1855  FN7  THAT "THE WORDS, 'DUE PROCESS OF LAW,'
WERE UNDOUBTEDLY INTENDED TO CONVEY THE SAME MEANING AS THE WORDS, 'BY
THE LAW OF THE LAND' IN MAGNA CHARTA."  AGAIN THIS COURT SAID:  FN8 

"WHEN MAGNA CHARTA DECLARED THAT NO FREEMAN SHOULD BE DEPRIVED OF
LIFE, ETC., 'BUT BY THE JUDGMENT OF HIS PEERS OR BY THE LAW OF THE
LAND,' IT REFERRED TO A TRIAL BY TWELVE JURORS.  THOSE WHO EMIGRATED TO
THIS COUNTRY FROM ENGLAND BROUGHT WITH THEM THIS GREAT PRIVILEGE 'AS
THEIR BIRTHRIGHT AND INHERITANCE,  ...  '  ...  'THE TRIAL  ...  BY A
JURY OF ONE'S COUNTRY, IS JUSTLY ESTEEMED ONE OF THE PRINCIPAL
EXCELLENCIES OF OUR CONSTITUTION; FOR WHAT GREATER SECURITY CAN ANY
PERSON HAVE IN HIS LIFE, LIBERTY OR ESTATE, THAN TO BE SURE OF NOT
BEING DIVESTED OF, OR INJURED IN ANY OF THESE, WITHOUT THE SENSE AND
VERDICT OF TWELVE HONEST AND IMPARTIAL MEN OF HIS NEIGHBORHOOD?...  '" 

THERE IS NOTHING IN THE LETTER OR SPIRIT OF OUR CONSTITUTION OR ANY
CONSTITUTIONAL AMENDMENT, WHICH DEPRIVES A STATE OF THE RIGHT TO SUBMIT
ISSUES OF FACT TO A TRIAL BY JURY.  THAT CONSTITUTION INDICATES NO
PREFERENCE FOR DETERMINATION OF FACTS BY JUDGES OR MASTERS APPOINTED BY
JUDGES.  ON THE CONTRARY, OUR FEDERAL CONSTITUTION, THE STATE
CONSTITUTIONS, AND OUR NATIONAL TRADITION DEMONSTRATE A WELLESTABLISHED
PREFERENCE FOR TRIAL BY JURY. 

"ONE OF THE OBJECTIONS MADE TO THE ACCEPTANCE OF THE CONSTITUTION AS
IT CAME FROM THE HANDS OF THE CONVENTION OF 1787 WAS THAT IT DID NOT,
IN EXPRESS WORDS, PRESERVE THE RIGHT OF TRIAL BY JURY, AND THAT UNDER
IT, FACTS TRIED BY A JURY COULD BE REEXAMINED BY THE COURTS OF THE
UNITED STATES OTHERWISE THAN ACCORDING TO THE RULES OF THE COMMON LAW. 
THE SEVENTH AMENDMENT WAS INTENDED TO MEET THESE OBJECTIONS, AND TO
DEPRIVE THE COURTS OF THE UNITED STATES OF ANY SUCH AUTHORITY."  FN9 

FURTHER, "UPON THE REASONING IN THE CASE JUST REFERRED TO (THE
JUSTICES V. MURRAY, 9 WALL.  274, 278) IT WOULD SEEM TO BE CLEAR THAT
THE LAST CLAUSE OF THE SEVENTH AMENDMENT FORBIDS THE RETRIAL BY THIS
COURT OF THE FACTS TRIED BY THE JURY IN THE PRESENT CASE....    "...
EVEN IF WE WERE OF OPINION IN VIEW OF THE EVIDENCE THAT THE JURY ERRED
IN FINDING THAT NO PROPERTY RIGHT, OF SUBSTANTIAL VALUE IN MONEY, HAD
BEEN TAKEN FROM THE RAILROAD COMPANY, BY REASON OF THE OPENING OF A
STREET ACROSS ITS RIGHT OF WAY, WE CANNOT, ON THAT GROUND, REEXAMINE
THE FINAL JUDGMENT OF THE STATE COURT.  WE ARE PERMITTED ONLY TO
INQUIRE WHETHER THE TRIAL COURT PRESCRIBED ANY RULE OF LAW FOR THE
GUIDANCE OF THE JURY THAT WAS IN ABSOLUTE DISREGARD OF THE COMPANY'S
RIGHT TO JUST COMPENSATION."  FN10 

THIS CAUSE WAS TRIED IN THE COURTS OF TEXAS IN ACCORDANCE WITH
REGULAR COURT PROCEDURE APPLICABLE TO SUCH CASES.  THE FACTS WERE
SUBMITTED TO A JURY AS PROVIDED BY THE CONSTITUTION AND LAWS OF THAT
STATE, AND IN HARMONY WITH THE TRADITIONS OF THE PEOPLE OF THIS
NATION.  UNDER THESE CIRCUMSTANCES, NO PROPER INTERPRETATION OF THE
WORDS "DUE PROCESS OF LAW" CONTAINED IN THE FOURTEENTH AMENDMENT, CAN
JUSTIFY THE CONCLUSION THAT APPELLANT HAS BEEN DEPRIVED OF ITS PROPERTY
CONTRARY TO THAT "DUE PROCESS."  IN OCTOBER, 1877, THIS COURT IN
DAVIDSON V. NEW ORLEANS, 96 U.S. 97, 105 - IN DISCUSSING THE FOURTEENTH
AMENDMENT - SAID: 

"BUT HOWEVER THIS MAY BE, OR UNDER WHATEVER OTHER CLAUSE OF THE
FEDERAL CONSTITUTION WE MAY REVIEW THE CASE, IT IS NOT POSSIBLE TO HOLD
THAT A PARTY HAS, WITHOUT DUE PROCESS OF LAW, BEEN DEPRIVED OF HIS
PROPERTY, WHEN, AS REGARDS THE ISSUES AFFECTING IT, HE HAS, BY THE LAWS
OF THE STATE, A FAIR TRIAL IN A COURT OF JUSTICE, ACCORDING TO THE
MODES OF PROCEEDING APPLICABLE TO SUCH A CASE." 

I CONCUR IN THE AFFIRMANCE. 

FN1  SEE DISSENT FILED IN CONNECTICUT GENERAL LIFE INS. CO. V.
JOHNSON, ANTE, P. 83. 

FN2  SEE MCCARDLE V. INDIANAPOLIS WATER CO., 272 U.S. 400; MCCART V.
INDIANAPOLIS WATER CO., 302 U.S. 419; 13 F.SUPP.  110; 89 F.(2D) 522,
525, 526. 

FN3  CF. CHICAGO & G.T. RY. CO. V. WELLMAN, 143 U.S. 339; SEE DISSENT
IN MCCART CASE, SUPRA. 

FN4  CF. SAN DIEGO LAND CO. V. NATIONAL CITY, 174 U.S. 739, 754;
OGDEN V. SAUNDERS, 12 WHEAT.  213, 270. 

FN5  WESTERN DISTRIBUTING CO. V. PUBLIC SERVICE COMM'N, 285 U.S. 119,
126, 127. 

"PURCHASES ARE FREQUENTLY MADE BY A MEMBER OR MEMBERS OF A SYSTEM
FROM AFFILIATES OR SUBSIDIARIES, AND WITH COMPARATIVE INFREQUENCY FROM
STRANGERS.  AT TIMES OBSCURITY OR CONFUSION HAS BEEN BORN OF SUCH
RELATIONS.  THERE IS WIDESPREAD BELIEF THAT TRANSFERS BETWEEN
AFFILIATES OR SUBSIDIARIES COMPLICATE THE TASK OF RATE-MAKING FOR
REGULATORY COMMISSIONS AND IMPEDE THE SEARCH FOR TRUTH.  BUYER AND
SELLER IN SUCH CIRCUMSTANCES MAY NOT BE DEALING AT ARM'S LENGTH, AND
THE PRICE AGREED UPON BETWEEN THEM MAY BE A POOR CRITERION OF VALUE. 
DAYTON POWER & LIGHT CO. V. PUBLIC UTILITIES COMM'N OF OHIO, 292 U.S.
290, 295; WESTERN DISTRIBUTING CO. V. PUBLIC SERVICE COMM'N OF KANSAS,
285 U.S. 119; SMITH V. ILLINOIS BELL TELEPHONE CO., 282 U.S. 133." 
AMERICAN TELEPHONE & TELEGRAPH CO. V. UNITED STATES, 299 U.S. 232,
239. 

FN6  BARRON V. BALTIMORE, 7 PET. 243, 247; EDWARDS V. ELLIOTT, 21
WALL.  532, 557. 

FN7  MURRAY'S LESSEE V. HOBOKEN LAND & IMP.  CO., 18 HOW.  272, 276. 

FN8  THOMPSON V. UTAH, 170 U.S. 343, 349, 350. 

FN9  CHICAGO, B. & Q.R. CO. V. CHICAGO, 166 U.S. 226, 243. 

FN10  ID., 244, 246. 

SEPARATE OPINION OF MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER. 

MR. JUSTICE BUTLER AND I ARE OF OPINION THAT THE JUDGMENT UNDER
REVIEW SHOULD BE REVERSED.  WE ADHERE TO THE DOCTRINE ANNOUNCED IN OHIO
VALLEY CO. V. BEN AVON BOROUGH, 253 U.S. 287, AND OFTEN REAFFIRMED. 
WHEN RATES FIXED FOR A PUBLIC SERVICE CORPORATION BY AN ADMINISTRATIVE
BODY ARE ALLEGED TO BE CONFISCATORY THE FEDERAL CONSTITUTION REQUIRES
THAT FAIR OPPORTUNITY BE AFFORDED FOR SUBMITTING THE CONTROVERSY TO A
JUDICIAL TRIBUNAL FOR DETERMINATION UPON ITS OWN INDEPENDENT JUDGMENT
BOTH AS TO LAW AND FACTS.  HERE SUCH OPPORTUNITY HAS BEEN DENIED. 

JUNE 13, 1933, THE TEXAS RAILROAD COMMISSION DIRECTED APPELLANT TO
OBSERVE A NEW SCHEDULE OF RATES.  BY BILL PRESENTED TO THE UNITED
STATES DISTRICT COURT JUNE 29, 1933, APPELLANT CHALLENGED THIS ACTION
AS CONFISCATORY.  JULY 26, 1933, THE COMMISSION BEGAN THIS PROCEEDING
IN THE STATE COURT BY FILING AN ORIGINAL PETITION WHICH, AMONG OTHER
THINGS, ALLEGED - 

"NOTWITHSTANDING DEFENDANT'S REMEDIES ARE ADEQUATE AND COMPLETE IN
THE COURTS OF THIS STATE, AND NOTWITHSTANDING EVERY CONSTITUTIONAL AND
LEGAL RIGHT TO WHICH IT MAY BE ENTITLED IS AND WILL BE FULLY
SAFEGUARDED AND PROTECTED IN SAID COURT, THE DEFENDANT, NEVERTHELESS,
ELECTED TO AND DID, ON OR ABOUT THE 29TH DAY OF JUNE, 1933, FILE ITS
BILL OF COMPLAINT IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF TEXAS, LAREDO DIVISION, IN A CAUSE ENTITLED,
UNITED GAS PUBLIC SERVICE COMPANY, PLAINTIFF V. LON A. SMITH, ET AL.,
DEFENDANTS, NO. 32 IN EQUITY, AND BEING A CAUSE WHEREIN YOUR DEFENDANT
IS PLAINTIFF AND WHEREIN EACH AND ALL OF YOUR PLAINTIFFS ARE
DEFENDANTS, EXCEPT THE STATE OF TEXAS...." 

"IN SAID ACTION IN SAID UNITED STATES DISTRICT COURT, UNITED GAS
PUBLIC SERVICE COMPANY ALLEGES IN SUBSTANCE AND EFFECT THAT THE ORDER
ENTERED BY THE RAILROAD COMMISSION OF TEXAS FIXED AND PRESCRIBED A RATE
CONFISCATORY OF ITS PROPERTY USED AND USEFUL IN THE PUBLIC SERVICE, AND
ALLEGED THAT SAID ORDER IS UNCONSTITUTIONAL AND UPON SAID ALLEGATION
(OBTAINED) A TEMPORARY RESTRAINING ORDER OUT OF SAID COURT ENJOINING
AND RESTRAINING YOUR PLAINTIFFS AND EACH OF THEM (EXCEPT THE STATE OF
TEXAS) FROM COMPELLING OR ATTEMPTING TO COMPEL YOUR DEFENDANT TO
OBSERVE SAID ORDER OF SAID COMMISSION." 

"PLAINTIFFS ALLEGE THAT THE DEFENDANT IS ATTEMPTING TO EVADE THE LAWS
OF THIS STATE AND THE LAWFUL ORDER OF THE RAILROAD COMMISSION OF TEXAS
FIXING AND PRESCRIBING RATES AND CHARGES FOR THE DISTRIBUTION AND SALE
OF NATURAL GAS WITHIN THE LIMITS OF THE CITY OF LAREDO, AND THAT IN
CHARGING A RATE IN EXCESS OF THAT PRESCRIBED BY THE RAILROAD
COMMISSION, PLAINTIFFS HEREIN, AND EACH OF THEM, ARE SUFFERING
IRREPARABLE INJURY, AND THAT THERE IS NO ADEQUATE REMEDY PRESCRIBED BY
THE LAWS OF THIS STATE WHICH WILL PROTECT THE PUBLIC INTEREST INVOLVED
AND THE RIGHTS OF PLAINTIFFS HEREIN." 

"PLAINTIFFS ARE DESIROUS OF HAVING THE CONSTITUTIONAL QUESTIONS
INVOLVED IN THE ATTACK BEING MADE BY UNITED GAS PUBLIC SERVICE COMPANY
UPON THE COMMISSION'S ORDER HEARD AND DETERMINED IN THE COURTS OF THIS
STATE, AND TO THAT END DESIRE THIS COURT TO ENTER A STAY OF PROCEEDINGS
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 38(380*), TITLE 28, U.S.C.
TO THE END THAT ALL PROCEEDINGS IN THE DISTRICT COURTS OF THE UNITED
STATES WILL BE STAYED PENDING A FINAL DETERMINATION OF THIS CAUSE IN
THE COURTS OF THIS STATE." 

*SEC. 380, TITLE 28 U.S.C.  "...  IT IS FURTHER PROVIDED THAT IF
BEFORE THE FINAL HEARING OF SUCH APPLICATION (TO A FEDERAL COURT FOR
INJUNCTION) A SUIT SHALL HAVE BEEN BROUGHT IN A COURT OF THE STATE
HAVING JURISDICTION THEREOF UNDER THE LAWS OF SUCH STATE, TO ENFORCE
SUCH STATUTE OR ORDER, ACCOMPANIED BY A STAY IN SUCH STATE COURT OF
PROCEEDINGS UNDER SUCH STATUTE OR ORDER PENDING THE DETERMINATION OF
SUCH SUIT BY SUCH STATE COURT, ALL PROCEEDINGS IN ANY COURT OF THE
UNITED STATES TO RESTRAIN THE EXECUTION OF SUCH STATUTE OR ORDER SHALL
BE STAYED PENDING THE FINAL DETERMINATION OF SUCH SUIT IN THE COURTS OF
THE STATE.  SUCH STAY MAY BE VACATED UPON PROOF MADE AFTER HEARING, AND
NOTICE OF TEN DAYS SERVED UPON THE ATTORNEY GENERAL OF THE STATE, THAT
THE SUIT IN THE STATE COURTS IS NOT BEING PROSECUTED WITH DILIGENCE AND
GOOD FAITH...." 

"THIS ACTION IS FILED IN THIS COURT IN THE NATURE OF AN APPEAL UNDER
THE TERMS OF ARTICLE 6059, REVISED CIVIL STATUTES, BUT SUCH APPEAL IS
NOT TAKEN BECAUSE THE PLAINTIFFS HEREIN ARE DISSATISFIED WITH THE RATES
AND CHARGES PRESCRIBED IN THE COMMISSION'S SAID ORDER, BUT PRIMARILY
FOR THE PURPOSE OF PROTECTING THE JURISDICTION OF THIS COURT AND ITS
VENUE TO HEAR AND FINALLY DETERMINE THE MATTERS IN CONTROVERSY AND TO
ENFORCE THE SAID ORDER, IF IT SHOULD BE DETERMINED TO BE VALID UPON
FINAL HEARING." 

THE PETITION ASKED:  THAT THE DEFENDANT APPEAR AND ANSWER; THAT UPON
FINAL TRIAL THE PLAINTIFFS HAVE AN APPROPRIATE JUDGMENT; THAT DEFENDANT
BE ENJOINED FROM CHARGING ANY RATES OTHER THAN THOSE FIXED BY THE
COMMISSION; ALSO THAT AN ORDER ISSUE STAYING FURTHER PROCEEDINGS BY THE
COMMISSION PENDING THE TERMINATION OF THIS SUIT, &C. 

JULY, 26, 1933, THE STATE COURT ENTERED A STAY ORDER AS PRAYED. 
AUGUST 17, 1933, UPON THE COMMISSION'S APPLICATION, THE UNITED STATES
DISTRICT COURT ORDERED THAT ALL PROCEEDINGS IN THAT COURT BE STAYED,
PENDING FINAL ACTION BY THE STATE COURT. 

UNDER THE COMPULSION INDICATED, APPELLANT UNWILLINGLY APPEARED IN THE
STATE COURT AND FILED AN ANSWER SETTING UP ITS RIGHTS UNDER THE FEDERAL
CONSTITUTION.  THE MATTER WAS SUPPOSED TO STAND IN THAT COURT FOR
HEARING DE NOVO.  VOLUMINOUS EVIDENCE WAS PRESENTED BY BOTH SIDES. 

NOTWITHSTANDING APPELLANT'S DEFINITE OBJECTIONS AND ITS DULY
PRESENTED REQUESTS FOR ADEQUATE INSTRUCTIONS, A SINGLE ISSUE WAS
SUBMITTED TO THE JURY.  "DO YOU FIND THAT THE ORDER OF THE RAILROAD
COMMISSION OF TEXAS BEARING DATE JUNE 13, 1933, PROVIDING FOR A FIFTY
FIVE CENT GAS RATE TO RESIDENTIAL CONSUMERS WITHIN THE CITY OF LAREDO,
TEXAS, UNDER THE FACTS INTRODUCED IN EVIDENCE BEFORE YOU, IS
UNREASONABLE AND UNJUST AS TO DEFENDANT, UNITED GAS PUBLIC SERVICE
COMPANY?  ANSWER THIS QUESTION 'YES,' OR 'NO.'"  THE JURY ANSWERED
"NO," AND JUDGMENT AFFIRMING THE COMMISSION'S ORDER IN PART WAS
ENTERED. 

THE COURT OF CIVIL APPEALS TOOK THE CAUSE FOR REVIEW UPON THE RECORD
MADE IN THE DISTRICT COURT.  THE FOLLOWING EXCERPTS FROM ITS OPINION
SUFFICIENTLY INDICATE THE REASONS WHICH MOVED IT PARTLY TO SUSTAIN AND
PARTLY TO OVERRULE THE JUDGMENT OF THE TRIAL COURT AND FINALLY TO
APPROVE THE COMMISSION'S ACTION IN TOTO. 

"WE HAVE REACHED THE CONCLUSION THAT APPELLANT NOT ONLY FAILED TO
ESTABLISH ITS CLAIM FOR REVERSAL AND RENDITION OF JUDGMENT IN ITS
FAVOR, BUT THAT WHEN VIEWED IN THE LIGHT OF THE PRESUMPTION IN FAVOR OF
THE VALIDITY OF THE COMMISSION'S RATE ORDER, AND OF THE QUANTUM AND
CHARACTER OF PROOF REQUIRED TO OVERCOME SUCH PRESUMPTION, THE EVIDENCE
ADDUCED WAS INSUFFICIENT, AS A MATTER OF LAW, TO SHOW THAT THE 55[ RATE
ORDER WAS EITHER UNJUST AND UNREASONABLE OR CONFISCATORY.  IN VIEW OF
THIS CONCLUSION, ALL QUESTIONS OF PRACTICE PRESENTED IN 'PART II.'  OF
THE BRIEF GO OUT OF THE CASE." 

"IN ABSENCE OF AN ACTUAL TEST OF THE RATE, THE COURT ON APPEAL MUST
RESOLVE ALL DOUBTS AGAINST THE COMPLAINING PARTY; PARE DOWN VALUATIONS
UNSPARINGLY; AND THE RATE MUST APPEAR TO BE CLEARLY CONFISCATORY, OR
UNJUST AND UNREASONABLE BEFORE THE COURT SHOULD BY INJUNCTION RESTRAIN
ITS ENFORCEMENT IN ADVANCE OF ACTUAL EXPERIENCE OF THE PRACTICAL
RESULTS OF THE RATE." 

"THAT IN ADVANCE OF ANY ACTUAL TEST OF THE PRACTICAL RESULT OF THE
NEW RATE, THE COURT ON APPEAL WILL NOT DISTURB THE RATE WHERE IT IS
BASED UPON CONFLICTING EVIDENCE AS TO VALUATIONS OF PROPERTY, OR AS TO
ANY OTHER ITEM USED AS A BASIS FOR THE CALCULATION OF THE RATE; BECAUSE
TO DO SO WOULD MERELY SUBSTITUTE THE FINDINGS OF THE COURT OR JURY UPON
CONFLICTING EVIDENCE FOR THAT OF THE COMMISSION, AND WOULD THEREFORE
PERMIT THE COURT TO EXERCISE THE LEGISLATIVE FUNCTION OF RATE-MAKING. 
R.R. COMMISSION V. SHUPEE, 57 S.W.(2D), 295; AFFIRMED 73 S.W.(2D),
505.  AND THAT BY 'RESOLVING ALL DOUBTS AGAINST' THE APPELLANT, 'AND
USING VALUATIONS PARED DOWN UNSPARINGLY,' THERE COULD HAVE BEEN NO
REASONABLE DOUBT IN THE JUDICIAL MIND THAT THE 55[ RATE WAS NEITHER
CONFISCATORY NOR UNJUST AND UNREASONABLE.  NEWTON V. CONSOLIDATED GAS
CO., 258 U.S., 165." 

CONSIDERING THE RULES WHICH THE COURT OF CIVIL APPEALS DECLARED
APPLICABLE TO THE TRIAL, QUITE EVIDENTLY APPELLANT HAD NO ADEQUATE
OPPORTUNITY TO SUBMIT THE LAW AND FACTS RELEVANT TO THE CONTROVERSY TO
A FAIR JUDICIAL TRIBUNAL FOR DETERMINATION ACCORDING TO ITS OWN
INDEPENDENT JUDGMENT. 

A TRIBUNAL REQUIRED TO ACCEPT WEIGHTY PRESUMPTIONS AGAINST A
DEFENDANT, RESOLVE ALL DOUBTS AGAINST IT, PARE DOWN VALUATIONS TO THE
UTMOST AND REFUSE A JUDGMENT IN ITS FAVOR WHEN THE EVIDENCE IS
CONFLICTING AS TO VALUATIONS OR OTHER IMPORTANT ELEMENTS, COULD NOT
REACH AN INDEPENDENT JUDGMENT IN RESPECT OF THE LAW AND FACTS - COULD
NOT ARRIVE AT A FAIR JUDICIAL DETERMINATION.  TO US THE PROCEEDINGS IN
THE STATE COURTS SEEM AN EMPTY SHOW. 
..END :




















N.Y. EX REL. WATER CO. V. MALTBIE, 303 U.S. 158 


NO. 380.  ARGUED FEBRUARY 3, 4, 1938.  - DECIDED FEBRUARY 14, 1938.  -
APPEAL FROM 275 N.Y. 357 -  9 N.E.2D 961, DISMISSED. 


A PUBLIC UTILITY IN NEW YORK, COMPLAINING OF AN ORDER REDUCING ITS
RATES, SOUGHT A REVIEW BY CERTIORARI, WHICH UNDER THE STATE PRACTICE IS
LIMITED TO QUESTIONS OF LAW.  HELD: 

1.  THAT IT HAD NO STANDING TO SAY THAT THE LIMITATION DEPRIVED IT OF
DUE PROCESS OF LAW.  P. 160. 

2.  THAT OF THE QUESTIONS OF LAW PRESENTED, INCLUDING THE QUESTION
WHETHER THERE WAS EVIDENCE TO SUSTAIN THE FINDINGS OF FACT MADE BY THE
RATE-FIXING BODY, NONE WAS A SUBSTANTIAL FEDERAL QUESTION.  ID. 

NEW YORK EX REL. CONSOLIDATED WATER CO. V. MALTBIE ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW YORK. 

PER CURIAM. 

IN A PROCEEDING BEFORE THE PUBLIC SERVICE COMMISSION OF THE STATE OF
NEW YORK RELATING TO RATES FOR WATER SUPPLIED BY APPELLANT TO THE CITY
OF UTICA AND ADJACENT COMMUNITIES, THE COMMISSION, ON JUNE 28, 1933,
AFTER FULL HEARING AND UPON FINDINGS DETERMINING THE FAIR VALUE OF THE
PROPERTY OF APPELLANT USED AND USEFUL IN RENDERING SERVICE TO ITS
CUSTOMERS, THE AMOUNT OF ANNUAL OPERATING INCOME REQUIRED TO YIELD A
SIX PER CENT. RETURN UPON SUCH FAIR VALUE, AND THE AVERAGE OPERATING
INCOME OF THE COMPANY FOR THE YEARS 1930 AND 1931(AS ADJUSTED TO ALLOW
FOR ADDITIONAL EXPENSE), DIRECTED APPELLANT TO FILE A SCHEDULE OF RATES
WHICH SHOULD EFFECT A REDUCTION IN ITS ANNUAL OPERATING REVENUES OF AT
LEAST $120,000 PER ANNUM.  THE COMMISSION DENIED A REHEARING WITH
PERMISSION TO APPLY FOR AN INCREASE OF RATES IF, AFTER A REASONABLE
TIME, IT SHOULD APPEAR THAT A DEFINITE CHANGE IN PRICES HAD OCCURRED. 

IN CERTIORARI PROCEEDINGS, APPELLANT CHALLENGED THESE DETERMINATIONS
AND ORDERS AS UNLAWFUL AND CONFISCATORY, IN VIOLATION OF THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES.  THE APPELLATE DIVISION, THIRD
DEPARTMENT, OF THE SUPREME COURT OF THE STATE, SUSTAINED THE ACTION OF
THE COMMISSION, 245 APP. DIV. 866; 282 N.Y. 412, AND THE COURT OF
APPEALS AFFIRMED THE ORDER OF THE APPELLATE DIVISION.  275 N.Y. 357; 9
N.E.2D 961.  THE CASE COMES HERE ON APPEAL WHICH APPELLEES MOVE TO
DISMISS FOR THE WANT OF JURISDICTION UPON THE GROUND THAT NO
SUBSTANTIAL FEDERAL QUESTION IS INVOLVED. 

1.  APPELLANT CONTENDS THAT IT IS ENTITLED TO THE EXERCISE OF THE
INDEPENDENT JUDGMENT OF A COURT AS TO THE LAW AND THE FACTS WITH
RESPECT TO THE ISSUE OF CONFISCATION AND THAT SUCH A REVIEW HAS NOT
BEEN ACCORDED BECAUSE OF THE LIMITATIONS IMPOSED BY THE STATE PRACTICE
IN CERTIORARI PROCEEDINGS.  275 N.Y. AT P. 370; 9 N.E.2D 961. 
APPELLANT HAS NO STANDING TO RAISE THIS QUESTION AS APPELLANT ITSELF
SOUGHT REVIEW BY CERTIORARI AND HAS NOT INVOKED THE PLENARY
JURISDICTION OF A COURT OF EQUITY AND IT DOES NOT APPEAR THAT THIS
REMEDY IS NOT AVAILABLE UNDER THE STATE LAW.  MATTER OF PENNSYLVANIA
GAS CO. V. PUBLIC SERVICE COMM'N, 211 APP. DIV. 253, 256; 207 N.Y.S.
599; MATTER OF NEW ROCHELLE WATER CO. V. MALTBIE, 248 APP. DIV. 66, 70;
289 N.Y.S. 388. 

2.  UPON THE REVIEW OF THE COMMISSION'S ORDERS BY CERTIORARI, ONLY
QUESTIONS OF LAW WERE OPEN UNDER THE STATE PRACTICE, INCLUDING THE
QUESTION WHETHER THERE WAS EVIDENCE TO SUSTAIN THE FINDINGS OF THE
COMMISSION.  275 N.Y. AT P. 366; 9 N.E.2D 961.  IN THAT VIEW NO
SUBSTANTIAL FEDERAL QUESTION IS PRESENTED.  CEDAR RAPIDS GAS CO. V.
CEDAR RAPIDS, 223 U.S. 655, 668-670; INTERSTATE COMMERCE COMM'N V.
LOUISVILLE & NASHVILLE R. CO., 227 U.S. 88, 91, 92; NEW YORK EX REL.
NEW YORK & QUEENS GAS CO. V. MCCALL, 219 N.Y. 84, 88-90; 245 U.S. 345,
348, 349.  THE MOTION TO DISMISS IS GRANTED.  DISMISSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :























N.Y. LIFE INS. CO. V. GAMER, 303 U.S. 161 


NO. 323.  ARGUED JANUARY 13, 1938.  - DECIDED FEBRUARY 14, 1938.  - 90
F.(2D) 817, REVERSED. 


A LIFE INSURANCE COMPANY STIPULATED TO PAY DOUBLE INDEMNITY (TWICE THE
FACE OF THE POLICY) UPON RECEIPT OF DUE PROOF THAT DEATH OF THE INSURED
RESULTED, DIRECTLY AND INDEPENDENTLY OF ALL OTHER CAUSES, FROM BODILY
INJURY EFFECTED SOLELY THROUGH EXTERNAL, VIOLENT AND ACCIDENTAL MEANS,
BUT THAT DOUBLE INDEMNITY SHOULD NOT BE PAYABLE IF THE DEATH RESULTED
FROM SELF-DESTRUCTION.  THE INSURED DIED OF A RIFLE SHOT.  IN AN ACTION
ON THE POLICY IN WHICH ONLY THE RIGHT TO THE ADDITIONAL PAYMENT WAS IN
CONTROVERSY, THE ISSUE RAISED BY THE PLEADINGS WAS WHETHER THE DEATH
WAS ACCIDENTAL, THE COMPANY CLAIMING SUICIDE.  HELD: 

1.  THAT THE BURDEN WAS UPON THE PLAINTIFF TO PROVE BY A
PREPONDERANCE OF THE EVIDENCE THAT THE DEATH WAS ACCIDENTAL.  P. 171. 

2.  THE PRESUMPTION THAT THE DEATH WAS DUE TO ACCIDENT RATHER THAN
SUICIDE LOST ITS APPLICATION TO THE CASE WHEN EVIDENCE WAS INTRODUCED
SUFFICIENT TO SUSTAIN A FINDING THAT DEATH WAS NOT DUE TO ACCIDENT. 
ID. 

3.  THIS PRESUMPTION REQUIRING THE INFERENCE OF ACCIDENT RATHER THAN
SUICIDE IN A CASE OF VIOLENT DEATH IS A RULE OF LAW; IT IS NOT EVIDENCE
AND MAY NOT BE GIVEN THE WEIGHT OF EVIDENCE.  ID. 

TRAVELLERS' INSURANCE CO. V. MCCONKEY, 127 U.S. 661, DISTINGUISHED. 

NEW YORK LIFE INSURANCE CO. V. GAMER, EXECUTRIX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 670, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED BY THE PRESENT RESPONDENT IN AN ACTION ON A LIFE INSURANCE
POLICY.  SEE ALSO 76 F.(2D) 543. 

THE PHYSICAL FACTS SHOW SUICIDE.  IT IS UNNECESSARY TO SHOW MOTIVE. 
NEW YORK LIFE INS. CO. V. TRIMBLE, 69 F.(2D) 849, 851; AETNA LIFE INS.
CO. V. TOOLEY, 16 F.(2D) 243, 244; BURKETT V. NEW YORK LIFE INS. CO.,
56 F.(2D) 105, 107, 108; BUT IN THE RECORD THERE IS EVIDENCE OF
MOTIVE. 

SURMISE OR CONJECTURE OF ACCIDENT WILL NOT SUSTAIN THE JUDGMENT. 
PENNSYLVANIA RY. CO. V. CHAMBERLAIN, 288 U.S. 333; NEW YORK LIFE INS.
CO. V. ANDERSON, 66 F.(2D) 705, 709; FRANKEL V. NEW YORK LIFE INS. CO.,
51 F.(2D) 933, 935; AETNA LIFE INS. CO. V. TOOLEY, 16 F.(2D) 243, 245;
NEW YORK LIFE INS. CO. V. ALMAN, 22 F.(2D) 98, 101; BURKETT V. NEW YORK
LIFE INS. CO., 56 F.(2D) 105, 108; STEVENS V. WHITE CITY, 285 U.S.
195. 

THE DISTRICT COURT SHOULD HAVE SUSTAINED THE MOTION FOR A DIRECTED
VERDICT FOR THE DEFENDANT. 

THE COMPLAINT ALLEGES THAT THE DEATH OF THE INSURED "RESULTED
DIRECTLY AND INDEPENDENTLY OF ALL OTHER CAUSES FROM BODILY INJURY
EFFECTED SOLELY THROUGH EXTERNAL, VIOLENT AND ACCIDENTAL MEANS AND ...
THAT THE DEATH OF SAID INSURED DID NOT RESULT FROM SELF-DESTRUCTION
(BUT) RESULTED DIRECTLY FROM THE ACCIDENTAL DISCHARGE OF A FIREARM, TO
WIT:  A RIFLE...." 

THE ANSWER DENIES THAT THE DEATH OF INSURED RESULTED FROM THE
ACCIDENTAL DISCHARGE OF A RIFLE, AND ALLEGES THAT THE DEATH OF THE
INSURED RESULTED FROM SELF-DESTRUCTION. 

THIS IS NOT A SUIT FOR DEATH, BUT FOR DEATH BY ACCIDENT.  THE
DEFENDANT AT ALL TIMES OFFERED TO PAY THE DEATH CLAIM, AND TENDERED THE
MONEY IN EXCHANGE FOR A FULL RELEASE, WHICH WAS REFUSED. 

THE BURDEN IS UPON THE PLAINTIFF TO PROVE HER CAUSE OF ACTION, "DEATH
BY ACCIDENT," WHICH PROOF WOULD NEGATIVE DEATH BY INTENTION.  U.S.
FIDELITY & GUARANTY CO. V. BLUM, 270 FED. 946; TRAVELERS' INS. CO. V.
WILKES, 76 F.(2D) 701; (INTERNATIONAL LIFE INS. CO. V. CARROLL, 17
F.(2D) 42, 43, DISTINGUISHED); JEFFERSON STANDARD LIFE INS. CO. V.
CLEMMER, 79 F.(2D) 724; FEDERAL LIFE INS. CO. V. ZEBEC, 82 F.(2D) 961,
963; NEW AMSTERDAM CASUALTY CO. V. BRESCHINI, 64 F.(2D) 887, 890;
FIDELITY & CASUALTY CO. V. DRIVER, 79 F.(2D) 713, 714. 

IT SEEMS CLEAR THAT IF THE PLAINTIFF MUST SHOW DEATH BY ACCIDENT, IT
MUST NEGATIVE DEATH BY INTENTIONAL MEANS, SUCH AS SUICIDE; AND IF THE
DEFENDANT MUST PROVE DEATH BY SUICIDE, IT MUST LIKEWISE NEGATIVE DEATH
BY ACCIDENT.  TRAVELERS' INSURANCE CO. V. MCCONKEY, 127 U.S. 661,
DISTINGUISHED. 

THE CAUSE OF DEATH BEING UNEXPLAINED, A PRESUMPTION ARISES IN
ACCORDANCE WITH HUMAN EXPERIENCE THAT IT WAS NOT CAUSED BY SUICIDE, AND
THIS PRESUMPTION TEMPORARILY AIDED THE PLAINTIFF ON WHOM WAS THE BURDEN
OF PERSUASION.  THIS REQUIRED THE DEFENDANT TO GO FORWARD WITH ITS
EVIDENCE, OR THE ISSUE OF SUICIDE WOULD GO AGAINST IT, BUT DID NOT
PLACE THE BURDEN ON DEFENDANT OF PROVING SUICIDE, OR CHANGE THE BURDEN
OF PROOF RESTING ON THE PLAINTIFF.  MOBILE V. TURNIPSEED, 219 U.S. 35. 

THE PROPER CONSTRUCTION AND INTERPRETATION TO BE PLACED UPON THE
MCCONKEY CASE HAS GIVEN RISE TO MUCH CONTRARIETY OF OPINION.  SEE
JEFFERSON STANDARD LIFE INS. CO. V. CLEMMER, 79 F.(2D) 724, 731. 

THE CIRCUIT COURT OF APPEALS ERRED IN SUSTAINING THE INSTRUCTIONS TO
THE JURY THAT THE PRESUMPTION OF LAW IS THAT THE DEATH WAS NOT
VOLUNTARY; THAT THIS PRESUMPTION HAS THE WEIGHT AND EFFECT OF EVIDENCE,
AND IS BINDING ON THE JURY AND THEY MUST FIND ACCORDING TO THE
PRESUMPTION UNTIL IT IS OVERCOME BY EVIDENCE, AND THAT THE BURDEN OF
OVERCOMING SUCH PRESUMPTION IS ON THE DEFENDANT.  MOBILE V. TURNIPSEED,
219 U.S. 35; WESTERN & A.R. CO. V. HENDERSON, 279 U.S. 639; HEINER V.
DONNAN, 285 U.S. 312; ATLANTIC COAST LINE R. CO. V. FORD, 287 U.S. 502;
DEL VECCHIO V. BOWERS, 296 U.S. 280.  (CITING MANY CASES IN THE CIRCUIT
COURTS OF APPEALS, INCLUDING ARIASI V. ORIENT INSURANCE CO., 50 F.(2D)
548, FROM THE NINTH CIRCUIT.)  ALSO:  THAYER, PRELIMINARY TREATISE ON
EVIDENCE, PAGES 314, 336, 337, 339; 5 WIGMORE ON EVIDENCE, 2D ED.,
SECS. 2487-2498, AND CHAP. 88; JONES' COMMENTARIES ON EVIDENCE, 2D ED.
1926, SECS. 30, 256. 

IT IS OUR CONTENTION THAT UPON THE TRIAL PLAINTIFF WAS REQUIRED TO
PROVE THAT GAMER DIED ON THE MORNING OF APRIL 10TH AND THAT HE DIED AS
A RESULT OF EXTERNAL AND VIOLENT MEANS.  THIS PROOF WAS THEN AIDED BY
THE PRESUMPTION OF LAW THAT HIS DEATH WAS ACCIDENTAL, WHICH, IN THE
ABSENCE OF CONTRADICTORY PROOF, WAS SUFFICIENT TO TAKE THE CASE TO THE
JURY.  THE EVIDENCE IN THIS CASE WAS SUFFICIENT TO TAKE THE CASE TO THE
JURY, IF INDEED IT DID NOT JUSTIFY A DIRECTED VERDICT FOR PLAINTIFF. 
GUNNING V. COOLEY, 281 U.S. 90; SMALL COMPANY V. LAMBORN, 267 U.S. 248;
MURRAY CO. V. HARRILL, 51 F.(2D) 883, 884; PYTHIAN KNIGHTS V. BECK, 181
U.S. 49.  SEE ALSO, MISSOURI STATE LIFE INS. CO. V. WEST, 67 F.(2D)
468; FIDELITY & CASUALTY CO. V. PITTINGER, 63 F.(2D) 880; HOME BENEFIT
ASSN. V. SARGENT, 142 U.S. 691; GAMER V. NEW YORK LIFE INS. CO., 76
F.(2D) 543. 

IT IS GENERALLY HELD THAT THE DEFENSE THAT DEATH RESULTED FROM CAUSES
WHICH BY THE TERMS OF THE POLICY RELIEVE THE INSURER FROM LIABILITY, IS
AN AFFIRMATIVE DEFENSE, TO BE ALLEGED BY INSURER IN ITS ANSWER. 
SULLIVAN V. METROPOLITAN LIFE INS. CO., 96 MONT. 254, 266; 29 P.(2D)
1064; KINGSLAND V. METROPOLITAN LIFE INS. CO., 97 MONT. 558, 569; 37
P.(2D) 335; VICARS V. AETNA LIFE INS. CO., 158 KY. 1; 164 S.W. 106;
DENT V. NATIONAL LIFE & ACCIDENT INS. CO., 6 S.W.(2D) 195; AMERICAN
CENTRAL LIFE INS. CO. V. ALEXANDER, 39 S.W.(2D) 86. 

IT IS FOR THE JURY TO DECIDE WHETHER DEATH WAS ACCIDENTAL, AS NEITHER
SUICIDE NOR MURDER WILL BE PRESUMED FROM THE KILLING OF AN INDIVIDUAL. 
MCCLUR V. NEW YORK LIFE INS. CO., 50 F.(2D) 972; METROPOLITAN LIFE INS.
CO. V. BROYER, 20 F.(2D) 818, 820; WELLS FARGO CO. V. MUTUAL LIFE INS.
CO., 66 F.(2D) 890, 893; CONNECTICUT LIFE INS. CO. V. MAHER, 70 F.(2D)
441. 

THE DECISION UPON THE FIRST APPEAL IS NOW THE LAW OF THE CASE. 

TRAVELERS' INSURANCE CO. V. MCCONKEY, 127 U.S. 661, HAS NOT BEEN
DISAPPROVED BY THIS COURT. 

(COUNSEL INVITED ATTENTION TO CERTAIN STATUTES OF MONTANA DEFINING
PRESUMPTION, AND TO MONTANA DECISIONS; STATE V. DISTRICT COURT, 72
MONT. 213; 232 PAC. 201, 203(3); ARNOLD V. GENZBERGER, 31 P.(2D) 296,
305; RENLAND V. FIRST NATIONAL BANK, 90 MONT. 424; 4 P.(2D) 488;
MCMAHON V. COONEY, 95 MONT. 138; 25 P.(2D) 131; NICHOLS V. NEW YORK
LIFE INS. CO., 88 MONT. 132, 292 PAC. 253; MAKI V. MURRAY HOSPITAL, 91
MONT. 251; 7 P.(2D) 228, 232; STATE V. NIELSON, 57 MONT. 137; 187 PAC.
639; UNION BANK & TRUST CO. V. STATE BANK, 103 MONT. 260; 62 P.(2D)
677, 684; ALSO TO MANY CALIFORNIA CASES.) 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

APRIL 10, 1933, THE DECEASED DIED BY GUNSHOT.  PETITIONER HAD INSURED
HIS LIFE BY A POLICY IN WHICH IT AGREED TO PAY HIS EXECUTORS TEN
THOUSAND DOLLARS UPON PROOF OF DEATH WITHOUT REGARD TO ITS CAUSE, OR
TWENTY THOUSAND DOLLARS IN CASE OF DEATH RESULTING FROM ACCIDENT AS
DEFINED BY A PROVISION THE PERTINENT PARTS OF WHICH FOLLOW.  "THE
DOUBLE INDEMNITY  ...  SHALL BE PAYABLE UPON RECEIPT OF DUE PROOF THAT
THE DEATH OF THE INSURED RESULTED DIRECTLY AND INDEPENDENTLY OF ALL
OTHER CAUSES FROM BODILY INJURY EFFECTED SOLELY THROUGH EXTERNAL,
VIOLENT AND ACCIDENTAL MEANS ...  DOUBLE INDEMNITY SHALL NOT BE PAYABLE
IF THE INSURED'S DEATH RESULTED FROM SELF-DESTRUCTION, WHETHER SANE OR
INSANE." 

RESPONDENT SUED PETITIONER IN A STATE COURT FOR TWENTY THOUSAND
DOLLARS.  THERE BEING DIVERSITY OF CITIZENSHIP, DEFENDANT REMOVED THE
CASE TO THE FEDERAL COURT FOR THE DISTRICT OF MONTANA.  THE COMPLAINT
ALLEGES THAT THE DEATH OF THE INSURED RESULTED DIRECTLY AND
INDEPENDENTLY OF ALL OTHER CAUSES FROM BODILY INJURY EFFECTED SOLELY
THROUGH EXTERNAL, VIOLENT AND ACCIDENTAL MEANS AND DID NOT RESULT FROM
SELF-DESTRUCTION BUT DIRECTLY FROM THE ACCIDENTAL DISCHARGE OF A
RIFLE. 

DEFENDANT'S ANSWER CONCEDES THAT PLAINTIFF IS ENTITLED TO THE FACE OF
THE POLICY, AND ALLEGES A DEPOSIT OF THAT AMOUNT WITH INTEREST IN
COURT.  IT DENIES THAT DEATH RESULTED FROM BODILY INJURY EFFECTED
THROUGH ACCIDENTAL MEANS; AND SPECIFICALLY DENIES THAT IT RESULTED FROM
THE ACCIDENTAL DISCHARGE OF A RIFLE OR OTHER FIRE-ARM.  AND "AS AN
AFFIRMATIVE DEFENSE," IT ALLEGES THAT THE DEATH OF THE INSURED RESULTED
FROM SELF-DESTRUCTION BY INTENTIONALLY DISCHARGING A LOADED RIFLE INTO
HIS BODY WITH INTENT TO TAKE HIS LIFE. 

THE CASE CAME ON FOR TRIAL AND, AT THE CLOSE OF THE EVIDENCE, THE
JUDGE ON MOTION OF DEFENDANT DIRECTED THE JURY TO RETURN A VERDICT IN
ITS FAVOR.  PLAINTIFF APPEALED; THE CIRCUIT COURT OF APPEALS HELD THAT
THE QUESTION WHETHER THE DEATH WAS ACCIDENTAL SHOULD HAVE BEEN
SUBMITTED TO THE JURY, AND REVERSED THE JUDGMENT.  76 F.(2D) 543.  AT
THE SECOND TRIAL PLAINTIFF WENT FORWARD; AT THE CLOSE OF ALL THE
EVIDENCE DEFENDANT REQUESTED THE COURT TO DIRECT A VERDICT IN ITS
FAVOR, INSISTING THAT PLAINTIFF HAD FAILED TO PROVE ACCIDENTAL DEATH
AND THAT THE EVIDENCE SHOWED DEATH WAS CAUSED BY SELF-DESTRUCTION, AND
WAS NOT SUFFICIENT TO SUSTAIN A VERDICT FOR THE PLAINTIFF.  THE COURT
DENIED THE MOTION AND SUBMITTED THE CASE TO THE JURY. 

ITS CHARGE CONTAINED THE FOLLOWING: 

"IN THIS CASE THE DEFENDANT ALLEGES THAT THE DEATH OF E. WALTER GAMER
WAS CAUSED BY SUICIDE.  THE BURDEN OF PROVING THIS ALLEGATION BY A
PREPONDERANCE, OR GREATER WEIGHT OF THE EVIDENCE IS UPON THE
DEFENDANT.  THE PRESUMPTION OF LAW IS THAT THE DEATH WAS NOT VOLUNTARY
AND THE DEFENDANT ...  MUST OVERCOME THIS PRESUMPTION AND SATISFY THE
JURY BY A PREPONDERANCE OF THE EVIDENCE THAT HIS DEATH WAS VOLUNTARY. 

"ORDINARILY ...  IN THE ABSENCE OF A PLEA BY THE DEFENDANT OF SUICIDE
OR SELF-DESTRUCTION THE BURDEN WOULD BE UPON, AND IT STILL IS UPON THE
PLAINTIFF IN THIS CASE TO PROVE THAT WALTER GAMER DIED FROM EXTERNAL,
VIOLENT AND ACCIDENTAL MEANS, BUT BY ITS ANSWER  ...  THE  ...  COMPANY
HAS ADMITTED THAT  ...  (HE) DIED THROUGH EXTERNAL AND VIOLENT
MEANS....  THE QUESTION REMAINS AS TO WHETHER THE DEATH WAS
ACCIDENTALLY CAUSED, OR THE MEANS OF THE DEATH WAS ACCIDENTAL OR
WHETHER IT WAS SUICIDE.  BUT WHEN THE DEFENDANT TOOK THE POSITION THAT
IT TAKES HERE IT ASSUMED THE BURDEN OF PROVING TO YOU BY A
PREPONDERANCE OF THE EVIDENCE THAT WALTER GAMER KILLED HIMSELF
VOLUNTARILY.... 

"THE PRESUMPTION OF LAW IS THAT THE DEATH WAS NOT VOLUNTARY AND THE
DEFENDANT IN ORDER TO SUSTAIN THE ISSUE OF SUICIDE  ...  MUST OVERCOME
THIS PRESUMPTION AND SATISFY THE JURY, BY A PREPONDERANCE OF THE
EVIDENCE, THAT HIS DEATH WAS VOLUNTARY  ..." 

THE JURY GAVE PLAINTIFF A VERDICT FOR TWENTY THOUSAND DOLLARS WITH
INTEREST, AND THE COURT ENTERED JUDGMENT IN HER FAVOR FOR THAT AMOUNT. 
DEFENDANT APPEALED, ALLEGING THAT THE TRIAL JUDGE ERRED IN DENYING ITS
MOTION FOR A DIRECTED VERDICT AND IN GIVING EACH OF THE QUOTED
INSTRUCTIONS.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  90 F.(2D) 817. 
THIS COURT GRANTED A WRIT OF CERTIORARI. 

THERE ARE PRESENTED FOR DECISION, QUESTIONS WHETHER THE TRIAL COURT
ERRED IN REFUSING TO DIRECT A VERDICT FOR DEFENDANT OR IN GIVING ANY OF
THE INSTRUCTIONS QUOTED ABOVE. 

THE CIRCUIT COURT OF APPEALS HAS TWICE HELD THE EVIDENCE SUFFICIENT
TO SUSTAIN A VERDICT FOR PLAINTIFF.  IT FOUND THAT THE FACTS BROUGHT
FORWARD AT THE SECOND TRIAL ARE NOT SUBSTANTIALLY DIFFERENT FROM THOSE
PRESENTED ON THE FIRST APPEAL.  THERE IS NO SUBSTANTIAL CONTROVERSY AS
TO THE PRINCIPAL EVIDENTIARY CIRCUMSTANCES UPON WHICH DEPENDS DECISION
OF THE CONTROLLING ISSUE, WHETHER THE DEATH OF THE INSURED WAS
ACCIDENTAL.  AS WE ARE OF OPINION THAT THE TRIAL COURT ERRED IN GIVING
THE CHALLENGED INSTRUCTIONS, AND THE JUDGMENT IS TO BE REVERSED AND THE
CASE REMANDED TO THE DISTRICT COURT WHERE ANOTHER TRIAL MAY BE HAD, WE
REFRAIN FROM DISCUSSION OF THE EVIDENCE.  WE FIND IT SUFFICIENT TO
SUSTAIN A VERDICT FOR OR AGAINST EITHER PARTY.  DEFENDANT WAS NOT
ENTITLED TO A MANDATORY INSTRUCTION. 

THE FORM AND SUBSTANCE OF THE CHALLENGED INSTRUCTIONS SUGGEST THAT
THE TRIAL JUDGE FOLLOWED THOSE BROUGHT BEFORE THIS COURT IN TRAVELLERS'
INS. CO. V. MCCONKEY, 127 U.S. 661.  THE OPINION OF THE CIRCUIT COURT
OF APPEALS READS THAT CASE TO REQUIRE APPROVAL OF THE INSTRUCTIONS HERE
IN QUESTION.  AS IT HAS NOT BEEN UNIFORMLY INTERPRETED, WE SHALL
EXAMINE ITS PRINCIPAL FEATURES.  THERE THE ACCIDENT POLICY SUED ON
COVERED BODILY INJURIES EFFECTED THROUGH EXTERNAL, VIOLENT AND
ACCIDENTAL MEANS WHEN SUCH INJURIES ALONE OCCASIONED DEATH OR
DISABILITY.  A PROVISO DECLARED THAT NO CLAIM SHOULD BE MADE UNDER THE
POLICY WHEN THE DEATH OR INJURY HAD BEEN CAUSED BY SUICIDE, OR BY
INTENTIONAL INJURIES INFLICTED BY THE INSURED OR BY ANY OTHER PERSON. 
THE COMPLAINT ALLEGED THAT THE INSURED HAD BEEN ACCIDENTLY SHOT BY A
PERSON OR PERSONS UNKNOWN TO PLAINTIFF, BY REASON OF WHICH HE INSTANTLY
DIED.  THE ANSWER DENIED THAT DEATH WAS OCCASIONED BY BODILY INJURIES
EFFECTED THROUGH EXTERNAL, VIOLENT AND ACCIDENTAL MEANS, AND ALLEGED
THAT IT WAS CAUSED BY SUICIDE, OR BY INTENTIONAL INJURIES INFLICTED
EITHER BY THE INSURED OR BY SOME OTHER PERSON.    THE STATEMENT OF THE
CASE QUOTES THE FOLLOWING INSTRUCTIONS (PP. 663-664): 

"THE PLAINTIFF  ...  GIVES EVIDENCE OF THE FACT THAT THE INSURED WAS
FOUND DEAD  ...  FROM A PISTOL SHOT THROUGH THE HEART.  THIS EVIDENCE
SATISFIES THE TERMS OF THE POLICY WITH RESPECT TO THE FACT THAT THE
ASSURED CAME TO HIS DEATH BY 'EXTERNAL AND VIOLENT MEANS,' AND THE ONLY
QUESTION IS WHETHER THE MEANS BY WHICH HE CAME TO HIS DEATH WERE ALSO
'ACCIDENTAL.' 

"IT IS MANIFEST THAT SELF-DESTRUCTION CANNOT BE PRESUMED....  THE
PLAINTIFF IS THEREFORE ENTITLED TO RECOVER UNLESS THE DEFENDANT HAS BY
COMPETENT EVIDENCE OVERCOME THIS PRESUMPTION AND SATISFIED THE JURY BY
A PREPONDERANCE OF EVIDENCE THAT THE INJURIES WHICH CAUSED THE DEATH OF
THE INSURED WERE INTENTIONAL ON HIS PART. 

"NEITHER IS MURDER TO BE PRESUMED  ...; BUT IF THE JURY FIND  ...
THAT THE INSURED WAS IN FACT MURDERED, THE DEATH WAS AN ACCIDENT AS TO
HIM  ...  IF  ...  THE INJURIES OF THE INSURED  ... WERE NOT
INTENTIONAL ON HIS PART THE PLAINTIFF HAS A RIGHT TO RECOVER....  THE
INQUIRY  ...  IS RESOLVED INTO A QUESTION OF SUICIDE, BECAUSE IF THE
INSURED WAS MURDERED THE DESTRUCTION OF HIS LIFE WAS NOT INTENTIONAL ON
HIS PART. 

"THE DEFENDANT, IN ITS ANSWER, ALLEGES THAT THE DEATH OF THE INSURED
WAS CAUSED BY SUICIDE.  THE BURDEN OF PROVING THIS ALLEGATION BY A
PREPONDERANCE OF EVIDENCE RESTS ON THE DEFENDANT." 

THIS COURT HELD THAT THE TRIAL JUDGE ERRED IN CHARGING THAT IF THE
INSURED WAS MURDERED PLAINTIFF WAS ENTITLED TO RECOVER AND ON THAT
GROUND REVERSED THE JUDGMENT AND REMANDED THE CASE WITH DIRECTIONS TO
GRANT A NEW TRIAL. 

IT WAS NOT NECESSARY TO CONSIDER ANY OTHER QUESTION.  BUT, FOR
GUIDANCE OF THE TRIAL ORDERED, THE COURT DISCUSSED OTHER PARTS OF THE
CHARGE. 

AT THE OUTSET THE OPINION DECLARES THAT UNDER THE ISSUE PRESENTED BY
THE GENERAL DENIAL IT WAS INCUMBENT ON PLAINTIFF TO SHOW THAT THE DEATH
WAS THE RESULT NOT ONLY OF EXTERNAL AND VIOLENT, BUT ALSO OF ACCIDENTAL
MEANS.  IT STATES THAT THE TWO "PRINCIPAL FACTS TO BE ESTABLISHED WERE
EXTERNAL VIOLENCE AND ACCIDENTAL MEANS, PRODUCING DEATH.  THE FIRST WAS
ESTABLISHED WHEN IT APPEARED THAT DEATH ENSUED FROM A PISTOL SHOT
THROUGH THE HEART OF THE INSURED.  THE EVIDENCE ON THAT POINT WAS
DIRECT AND POSITIVE;...  WERE THE MEANS BY WHICH THE INSURED CAME TO
HIS DEATH ALSO ACCIDENTAL?  IF HE COMMITTED SUICIDE, THEN THE LAW WAS
FOR THE COMPANY, BECAUSE THE POLICY  ...  DID NOT EXTEND TO  ...  SELF
DESTRUCTION  ..." 

THE OPINION PROCEEDS (P. 667):  "DID THE COURT ERR IN SAYING TO THE
JURY THAT, UPON THE ISSUE AS TO SUICIDE, THE LAW WAS FOR THE PLAINTIFF,
UNLESS THAT PRESUMPTION WAS OVERCOME BY COMPETENT EVIDENCE?  THIS
QUESTION MUST BE ANSWERED IN THE NEGATIVE.  THE CONDITION THAT DIRECT
AND POSITIVE PROOF MUST BE MADE OF DEATH HAVING BEEN CAUSED BY
EXTERNAL, VIOLENT, AND ACCIDENTAL MEANS, DID NOT DEPRIVE THE PLAINTIFF,
WHEN MAKING SUCH PROOF, OF THE BENEFIT OF THE RULES OF LAW ESTABLISHED
FOR THE GUIDANCE OF COURTS AND JURIES IN THE INVESTIGATION AND
DETERMINATION OF FACTS." 

THE STATEMENT JUST QUOTED, LACKING SOMEWHAT OF THE PRECISION
GENERALLY FOUND IN OPINIONS OF THE COURT PREPARED BY ITS EMINENT
AUTHOR, HAS BEEN VARIOUSLY CONSTRUED.  THE QUESTION IT PROPOUNDS DOES
NOT FULLY REFLECT THE SUBSTANCE OF THE CHARGE WHICH PUT ON THE
DEFENDANT THE BURDEN OF PROVING SUICIDE BY PREPONDERANCE OF THE
EVIDENCE.  HOWEVER, THE OPINION SHOWS THAT THE BURDEN WAS ON PLAINTIFF
TO PROVE DEATH BY ACCIDENT AS DEFINED IN THE CONTRACT.  IT CONTAINS
NOTHING TO SUGGEST THAT THE COURT DEEMED THE ISSUE AS TO BURDEN OF
PROOF ARISING ON GENERAL DENIAL TO BE AFFECTED BY DEFENDANT'S
ALLEGATION OF SUICIDE.  IT HELD THAT IF THE INSURED COMMITTED SUICIDE,
PLAINTIFF HAD NO CLAIM; THAT, FROM THE FACT OF DEATH BY VIOLENCE,
ACCIDENT WOULD BE PRESUMED, AND THAT UNLESS THE PRESUMPTION WAS
OVERCOME BY EVIDENCE THE LAW WAS FOR PLAINTIFF.  THE OPINION DOES NOT
INDICATE THE QUANTUM OF PROOF REQUIRED TO PUT AN END TO THE
PRESUMPTION.  IT IS CONSISTENT WITH, IF INDEED IT DOES NOT SUPPORT, THE
RULE THAT THE PRESUMPTION IS NOT EVIDENCE AND CEASES UPON THE
INTRODUCTION OF SUBSTANTIAL PROOF TO THE CONTRARY.  THAYER, PRELIMINARY
TREATISE ON EVIDENCE, P. 346.  MOBILE, J. & K.C.R. CO. V. TURNIPSEED,
219 U.S. 35, 43.  WESTERN & ATLANTIC R. CO. V. HENDERSON, 279 U.S. 639,
642, 644.  HEINER V. DONNAN, 285 U.S. 312, 329.  ATLANTIC COAST LINE V.
FORD, 287 U.S. 502, 506.  DEL VECCHIO V. BOWERS, 296 U.S. 280, 286. 
NICHOLS V. NEW YORK LIFE INS. CO., 88 MONT. 132, 139 ET SEQ.; 292 P.
253.  THE OPINION DID NOT DEFINITELY SUSTAIN ANY OF THE CHARGES TO
WHICH IT REFERRED.  IT FALLS FAR SHORT OF SUSTAINING THE INSTRUCTIONS
CHALLENGED IN THE PRESENT CASE. 

UNDER THE CONTRACT IN THE CASE NOW BEFORE US, DOUBLE INDEMNITY IS
PAYABLE ONLY ON PROOF OF DEATH BY ACCIDENT AS THERE DEFINED.  THE
BURDEN WAS ON PLAINTIFF TO ALLEGE AND BY A PREPONDERANCE OF THE
EVIDENCE TO PROVE THAT FACT.  THE COMPLAINT ALLEGED ACCIDENT AND
NEGATIVED SELF-DESTRUCTION.  THE ANSWER DENIED ACCIDENT AND ALLEGED
SUICIDE.  PLAINTIFF'S NEGATION OF SELF-DESTRUCTION TAKEN WITH
DEFENDANT'S ALLEGATION OF SUICIDE SERVED TO NARROW THE POSSIBLE FIELD
OF CONTROVERSY.  ONLY THE ISSUE OF ACCIDENTAL DEATH VEL NON REMAINED. 
THE QUESTION OF FACT TO BE TRIED WAS PRECISELY THE SAME AS IF PLAINTIFF
MERELY ALLEGED ACCIDENTAL DEATH AND DEFENDANT INTERPOSED DENIAL WITHOUT
MORE.  TRAVELERS' INS. CO. V. WILKES, 76 F.(2D) 701, 705.  FIDELITY &
CASUALTY CO. V. DRIVER, 79 F.(2D) 713, 714.  CF. HOME BENEFIT ASSN. V.
SARGENT, 142 U.S. 691. 

UPON THE FACT OF VIOLENT DEATH WITHOUT MORE, THE PRESUMPTION, I.E.,
THE APPLICABLE RULE OF LAW, REQUIRED THE INFERENCE OF DEATH BY ACCIDENT
RATHER THAN BY SUICIDE.  AS THE CASE STOOD ON THE PLEADINGS, THE LAW
REQUIRED JUDGMENT FOR PLAINTIFF.  TRAVELLERS' INS. CO. V. MCCONKEY,
SUPRA, 665.  IT WAS NOT SUBMITTED ON PLEADINGS BUT ON PLEADINGS AND
PROOF.  IN HIS CHARGE THE JUDGE HAD TO APPLY THE LAW TO THE CASE AS IT
THEN WAS.  THE EVIDENCE BEING SUFFICIENT TO SUSTAIN A FINDING THAT THE
DEATH WAS NOT DUE TO ACCIDENT, THERE WAS NO FOUNDATION OF FACT FOR THE
APPLICATION OF THE PRESUMPTION; AND THE CASE STOOD FOR DECISION BY THE
JURY UPON THE EVIDENCE UNAFFECTED BY THE RULE THAT FROM THE FACT OF
VIOLENT DEATH, THERE BEING NOTHING TO SHOW THE CONTRARY, ACCIDENTAL
DEATH WILL BE PRESUMED.  THE PRESUMPTION IS NOT EVIDENCE AND MAY NOT BE
GIVEN WEIGHT AS EVIDENCE.  DESPIAU V. UNITED STATES CASUALTY CO., 89
F.(2D) 43, 44.  JEFFERSON STANDARD LIFE INS. CO. V. CLEMMER, 79 F.(2D)
724, 730.  TRAVELERS' INS. CO. V. WILKES, SUPRA, 705.  FIDELITY &
CASUALTY CO. V. DRIVER, SUPRA, 714.  FRANKEL V. NEW YORK LIFE INS. CO.,
51 F.(2D) 933, 935.  OCEAN ACCIDENT & GUARANTEE CORP. V. SCHACHNER, 70
F.(2D) 28, 31.  BUT SEE:  NEW YORK LIFE INS. CO. V. ROSS, 30 F.(2D)
80.  TSCHUDI V. METROPOLITAN LIFE INS. CO., 72 F.(2D) 306, 308, 310. 
NICHOLS V. NEW YORK LIFE INS. CO., SUPRA. 

IN DETERMINING WHETHER BY THE GREATER WEIGHT OF EVIDENCE IT HAS BEEN
ESTABLISHED THAT THE DEATH OF THE INSURED WAS ACCIDENTAL, THE JURY IS
REQUIRED TO CONSIDER ALL ADMITTED AND PROVED FACTS AND CIRCUMSTANCES
UPON WHICH THE DETERMINATION OF THAT ISSUE DEPENDS AND, IN REACHING ITS
DECISION, SHOULD TAKE INTO ACCOUNT THE PROBABILITIES FOUND FROM THE
EVIDENCE TO ATTEND THE CLAIMS OF THE RESPECTIVE PARTIES. 

THE CHALLENGED INSTRUCTIONS CANNOT BE SUSTAINED.  JUDGMENT REVERSED. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

THE JUDGMENT BELOW RESTS UPON AN INSURANCE POLICY CONTRACT MADE IN
BUTTE, MONTANA.  PLAINTIFF FILED SUIT FOR MORE THAN $3,000 IN A MONTANA
STATE COURT, AND THE INSURANCE COMPANY - BECAUSE IT WAS NOT A MONTANA
CORPORATION - WAS ABLE TO REMOVE THE SUIT TO THE FEDERAL DISTRICT
COURT.  PLAINTIFF'S JUDGMENT IN THE DISTRICT COURT WAS AFFIRMED BY THE
COURT OF APPEALS.  THIS COURT NOW REVERSES PLAINTIFF'S JUDGMENT BECAUSE
THE DISTRICT COURT INSTRUCTED THE JURY THAT - EVIDENCE HAVING
ESTABLISHED THE DEATH OF THE INSURED BY VIOLENT AND EXTERNAL MEANS -
THE LAW PRESUMED FROM THESE FACTS THAT THE DEATH "WAS NOT VOLUNTARY AND
...  THE DEFENDANT MUST OVERCOME THIS PRESUMPTION AND SATISFY THE JURY
BY A PREPONDERANCE OF THE EVIDENCE, THAT HIS DEATH WAS VOLUNTARY...." 
THE POLICY OF INSURANCE WAS A MONTANA CONTRACT AND EVEN THOUGH THE
COMPANY WAS ABLE TO REMOVE PLAINTIFF'S CASE TO A FEDERAL COURT, I
BELIEVE THE PLAINTIFF'S RIGHTS SHOULD BE DETERMINED BY MONTANA LAW. 
UNDER MONTANA LAW I BELIEVE THE ABOVE INSTRUCTIONS WERE PROPER. 

THE SUPREME COURT OF MONTANA HAS SAID:  FN1 

"WHERE, AS HERE, DEATH IS SHOWN AS THE RESULT OF EXTERNAL AND VIOLENT
MEANS AND THE ISSUE IS WHETHER IT WAS DUE TO ACCIDENT OR SUICIDE, THE
PRESUMPTION IS IN FAVOR OF ACCIDENT." 

THE MAJORITY AGREE WITH THE MONTANA LAW UP TO THIS POINT, SAYING: 

"UPON THE FACT OF VIOLENT DEATH WITHOUT MORE, THE PRESUMPTION, I.E.,
THE APPLICABLE RULE OF LAW, REQUIRED THE INFERENCE OF DEATH BY ACCIDENT
RATHER THAN BY SUICIDE."  AT THIS POINT, AGREEMENT ENDS BETWEEN THE
RULE HERE DECLARED BY THE MAJORITY AND THE LAW OF MONTANA. 

UNDER MONTANA LAW THE PRESUMPTION THAT VIOLENT DEATH WAS ACCIDENTAL
AND NOT SUICIDAL CONTINUES AND DOES NOT DISAPPEAR UNLESS THE EVIDENCE
"ALL POINTS TO SUICIDE  ...  WITH SUCH CERTAINTY AS TO PRECLUDE ANY
OTHER REASONABLE HYPOTHESIS"; AND THE PRESUMPTION CONTINUES FOR THE
JURY'S CONSIDERATION EXCEPT "...  WHEN THE EVIDENCE POINTS
OVERWHELMINGLY TO SUICIDE AS THE CAUSE OF DEATH."  FN2 

CONTRARY TO THIS CLEAR STATEMENT BY THE MONTANA SUPREME COURT IS THE
DIFFERENT RULE CLEARLY ANNOUNCED BY THE MAJORITY HERE IN HOLDING THAT
THE PRESUMPTION DISAPPEARS AFTER THE INSURANCE COMPANY INTRODUCED
EVIDENCE MERELY "SUFFICIENT TO SUSTAIN A FINDING THAT THE DEATH WAS NOT
DUE TO ACCIDENT." 

THIS COURT DOES NOT FIND THAT THE EVIDENCE IN THIS CASE EXCLUDES
EVERY OTHER REASONABLE HYPOTHESIS BUT SUICIDE OR THAT ALL OF THE
EVIDENCE POINTS "UNERRINGLY TO SUICIDE AS THE CAUSE OF DEATH."  FN3  ON
THE CONTRARY THE MAJORITY OPINION STATES: 

"WE FIND IT (THE EVIDENCE) SUFFICIENT TO SUSTAIN A VERDICT FOR OR
AGAINST EITHER PARTY.  DEFENDANT WAS NOT ENTITLED TO A MANDATORY
INSTRUCTION." 

IT IS OBVIOUS THAT THE MAJORITY HERE DECLARE A RULE BASED NEITHER ON
MONTANA LAW NOR FEDERAL STATUTE.  THIS FEDERAL JUDICIAL RULE MUST NONE
THE LESS BE FOLLOWED IN SUITS ON INSURANCE POLICIES TRIED IN FEDERAL
COURTS.  THE RESULT IS THAT SUITS ON POLICIES FOR LESS THAN $3,000
TRIED IN STATE COURTS WILL FREQUENTLY BE DECIDED BY RULES DIFFERENT
FROM THE RULE WHICH GOVERNS SIMILAR SUITS TRIED IN FEDERAL COURTS
BECAUSE THEY INVOLVE MORE THAN $3,000.  IN AN ORDERLY AND CONSISTENT
SYSTEM OF JURISPRUDENCE, IT IS IMPORTANT THAT THE SAME LAW SHOULD FIX
AND CONTROL THE RIGHT OF RECOVERY ON SUBSTANTIALLY IDENTICAL CONTRACTS
MADE IN THE SAME JURISDICTION AND UNDER THE SAME CIRCUMSTANCES. 
NEITHER THE COMPANY NOR THE POLICYHOLDER SHOULD OBTAIN AN ADVANTAGE BY
THE APPLICATION OF A DIFFERENT LAW GOVERNING THE CONTRACT MERELY
BECAUSE THE CASE CAN BE REMOVED TO A FEDERAL COURT. 

IT WAS TO AVOID SUCH RESULTS - AMONG OTHER REASONS - THAT SEC. 725,
U.S.C., TITLE 28, WAS PASSED.  IT PROVIDES: 

"THE LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE CONSTITUTION,
TREATIES, OR STATUTES OF THE UNITED STATES OTHERWISE REQUIRE OR
PROVIDE, SHALL BE REGARDED AS RULES OF DECISION IN TRIALS AT COMMON
LAW, IN THE COURTS OF THE UNITED STATES, IN CASES WHERE THEY APPLY." 

IN THIS CASE, THE LAW DETERMINING THE BURDEN OF PROOF AS TO SUICIDE
AFFECTS THE SUBSTANTIAL RIGHTS OF THE PARTIES.  FN4  SUBSTANTIAL RIGHTS
ARISING FROM AN INSURANCE CONTRACT ARE GOVERNED BY THE LAW OF THE STATE
WHERE THE CONTRACT IS MADE.  FN5  SINCE THE COURT BELOW INSTRUCTED THE
JURY IN ACCORDANCE WITH THE LAW OF MONTANA, I DO NOT BELIEVE THE CHARGE
CONSTITUTED REVERSIBLE ERROR. 

NOR CAN I AGREE THAT WE SHOULD APPROVE A GENERAL RULE GOVERNING
TRIALS IN FEDERAL COURTS WHICH IN MY JUDGMENT TRANSFERS JURY FUNCTIONS
TO JUDGES.  THE EFFECT OF THE DECISION HERE IS TO GIVE THE TRIAL JUDGE
THE RIGHT TO DECIDE WHEN SUFFICIENT EVIDENCE HAS BEEN INTRODUCED TO
TAKE FROM THE JURY THE RIGHT TO FIND ACCIDENTAL DEATH FROM PROOF OF
DEATH BY VIOLENT AND EXTERNAL MEANS.  THIS INEVITABLY FOLLOWS IF THE
PRESUMPTION, OR RIGHT OF THE JURY TO INFER DEATH BY ACCIDENT,
"DISAPPEARS" WHENEVER THE JUDGE BELIEVES SUFFICIENT EVIDENCE OF SUICIDE
HAS BEEN INTRODUCED. 

STRIPPED OF DISCUSSIONS OF LEGAL FORMULAS DESIGNATED AS
"PRESUMPTIONS" AND "BURDEN OF PROOF," THE NET RESULT OF THE RULE OF
"DISAPPEARING PRESUMPTIONS" IS THAT TRIAL JUDGES IN FEDERAL COURTS
(IRRESPECTIVE OF STATE RULES) HAVE THE POWER TO DETERMINE WHEN
SUFFICIENT "SUBSTANTIAL EVIDENCE" HAS BEEN PRODUCED TO JUSTIFY TAKING
FROM THE JURY THE RIGHT TO RENDER A VERDICT ON EVIDENCE WHICH - HAD THE
JUDGE NOT FOUND IT OVERCOME BY CONTRADICTORY EVIDENCE - WOULD HAVE
JUSTIFIED A VERDICT.  THE JUDGE EXERCISES THIS POWER AS A "TRIER OF
FACT" ALTHOUGH EVIDENCE, PREVIOUSLY INTRODUCED AND SUFFICIENT TO
SUPPORT A VERDICT, HAS NEITHER BEEN EXCLUDED NOR WITHDRAWN. 

PROOF OF DEATH BY EXTERNAL AND VIOLENT MEANS HAS UNIFORMLY BEEN HELD
TO ESTABLISH DEATH BY ACCIDENT.  THE EXTREME IMPROBABILITY OF SUICIDE
IS COMPLETE JUSTIFICATION FOR A FINDING OF DEATH FROM ACCIDENT UNDER
THESE CIRCUMSTANCES.  WHILE IT HAS BEEN SAID THAT THIS PROOF OF
ACCIDENTAL DEATH WAS BASED ON "PRESUMPTION," IN REALITY - WHATEVER
WORDS OR FORMULAS ARE USED - WHAT IS MEANT IS THAT A LITIGANT HAS
OFFERED ADEQUATE EVIDENCE TO ESTABLISH ACCIDENTAL DEATH.  TO ATTRIBUTE
THIS ADEQUACY OF PROOF TO A "PRESUMPTION" DOES NOT AUTHORIZE OR EMPOWER
THE JUDGE TO SAY THAT THIS "ADEQUATE PROOF" (IDENTICAL WITH LEGAL
"PRESUMPTION") HAS "DISAPPEARED."  IF THE EVIDENCE OFFERED BY PLAINTIFF
PROVIDES ADEQUATE PROOF OF ACCIDENTAL DEATH UPON WHICH A JURY'S VERDICT
CAN BE SUSTAINED, MERE CONTRADICTORY EVIDENCE CANNOT OVERCOME THE
ORIGINAL "ADEQUATE PROOF" UNLESS THE AUTHORITY HAVING THE
CONSTITUTIONAL POWER TO WEIGH THE EVIDENCE AND DECIDE THE FACTS
BELIEVES THE CONTRADICTORY EVIDENCE HAS OVERCOME THE ORIGINAL PROOF. 
THE JURY - NOT THE JUDGE - SHOULD DECIDE WHEN THERE HAS BEEN
"SUBSTANTIAL" EVIDENCE WHICH OVERCOMES THE PREVIOUS ADEQUATE PROOF. 
HERE, THIS COURT HOLDS THAT AT THE CONCLUSION OF PLAINTIFF'S EVIDENCE
THE JURY HAD ADEQUATE PROOF UPON WHICH TO FIND ACCIDENTAL DEATH, AND
WHICH WOULD AUTHORIZE A VERDICT THAT INSURED DIED AS A RESULT OF
ACCIDENT, BUT ALSO HOLDS THAT, AFTER SUBSEQUENT CONTRADICTORY EVIDENCE
OF DEFENDANT, THE JUDGE (NOT THE JURY) COULD DECIDE THAT PLAINTIFF'S
ADEQUATE PROOF (PRESUMPTION) HAD "DISAPPEARED" OR HAD BEEN OVERCOME BY
THIS SUBSEQUENT CONTRADICTORY TESTIMONY.  THIS TOOK FROM THE JURY THE
RIGHT TO DECIDE THE WEIGHT AND EFFECT OF THIS SUBSEQUENT CONTRADICTORY
EVIDENCE.  SUCH A RULE GIVES PARTIES A TRIAL BY JUDGE, BUT DOES NOT
PRESERVE, IN ITS ENTIRETY, THAT TRIAL BY JURY GUARANTEED BY THE SEVENTH
AMENDMENT TO THE CONSTITUTION.  I CANNOT AGREE TO A CONCLUSION WHICH, I
BELIEVE, TAKES AWAY ANY PART OF THE CONSTITUTIONAL RIGHT TO HAVE A JURY
PASS UPON THE WEIGHT OF ALL OF THE FACTS INTRODUCED IN EVIDENCE. 

I BELIEVE THE JUDGMENT OF THE COURT BELOW SHOULD BE AFFIRMED. 

FN1  NICHOLS V. NEW YORK LIFE INS. CO., 88 MONT. 132, 140; 292 P.
253, 255. 

FN2  NICHOLS V. NEW YORK LIFE INS. CO., SUPRA, AT 141.  IN A CASE
INVOLVING AN ACTION ON AN INSURANCE POLICY, IN WHICH THE MCCONKEY CASE,
SUPRA, WAS FOLLOWED, THE SUPREME COURT OF MONTANA SAID: 

"THE TESTIMONY AS TO THE INCIDENTS CONNECTED WITH THE DEATH OF THE
INSURED IS SLIGHT, BUT IS SUFFICIENT TO ESTABLISH THE DEATH OF INSURED
BY EXTERNAL AND VIOLENT MEANS.... 

"...  IF PLAINTIFF HAD 'SHOWN BY THE FAIR WEIGHT OF THE EVIDENCE THAT
THE ASSURED CAME TO HIS DEATH AS THE RESULT OF A PISTOL SHOT  ..., THEN
THE LAW WILL PRESUME THAT THE SHOT WAS ACCIDENTAL, AND THAT IT WAS NOT
INFLICTED WITH MURDEROUS OR SUICIDAL INTENT.  AND UNDER SUCH
CIRCUMSTANCES THE BURDEN WILL BE UPON THE DEFENDANT TO OVERCOME THIS
PRESUMPTION, AND TO SHOW THAT THE DEATH WAS NOT CAUSED BY ACCIDENTAL
MEANS.' 

"IT IS APPARENT, THEREFORE, THAT UNDER THE GREAT WEIGHT OF AUTHORITY
PLAINTIFF'S EVIDENCE MADE A PRIMA FACIE CASE.  AS SAID BY THIS COURT IN
NUMEROUS DECISIONS, WHEN A PRIMA FACIE CASE IS MADE BY PLAINTIFF, THE
DEFENDANT MUST REBUT THE CASE SO MADE, OR FAIL IN THE ACTION."  WITHERS
V. PACIFIC MUTUAL LIFE INS. CO., 58 MONT. 485, 491, 492, 493, 494; 193
P. 566, 568. 

"TESTIMONY CONSTITUTING A MERE CONTRADICTION OF THE FACTS ESTABLISHED
PRESUMPTIVELY BY THE PRIMA FACIE CASE DOES NOT NECESSARILY SUFFICE TO
OVERTHROW THE SAME....  THE PRIMA FACIE CASE MUST NOT ONLY BE
CONTRADICTED BUT OVERCOME AS WELL.  WHEN SUCH CASE IS MADE,
CONTRADICTORY TESTIMONY MERELY AMOUNTS TO A CONFLICT IN THE EVIDENCE,
WITH THE ULTIMATE FACTS TO BE DETERMINED BY THE COURT OR JURY, AS THE
CASE MAY BE."  STATE V. NIELSEN, 57 MONT. 137, 143; 187 P. 639, 640. 
CF. JOHNSON V. CHICAGO, M. & ST. P. RY. CO., 52 MONT. 73; 155 P. 971. 
SEE, RENLAND V. FIRST NATIONAL BANK, 90 MONT. 424, 437; 4 P.2D 488. 

FN3  CF. NICHOLS V. NEW YORK LIFE INS. CO., SUPRA, AT 144. 

FN4  CF. CENTRAL VERMONT RY. CO. V. WHITE, 238 U.S. 507, 511, 512;
NEW ORLEANS & N.E.R. CO. V. HARRIS, 247 U.S. 367, 371, 372. 

FN5  PRITCHARD V. NORTON, 106 U.S. 124, 130; NORTHWESTERN MUTUAL LIFE
INS. CO. V. MCCUE, 223 U.S. 234, 246, 247. 
..END :
























S.C. HWY. DEPT. V. BARNWELL BROS., 303 U.S. 177 


NO. 161.  ARGUED JANUARY 4, 1938.  - DECIDED FEBRUARY 14, 1938.  - 17
F.(2D) 803, REVERSED. 


1.  IN THE ABSENCE OF NATIONAL LEGISLATION COVERING THE SUBJECT IN ITS
RELATION TO INTERSTATE COMMERCE, A STATE, IN ORDER TO CONSERVE ITS
HIGHWAYS AND PROMOTE SAFETY THEREON, MAY ADOPT REGULATIONS LIMITING THE
WEIGHT AND WIDTH OF THE VEHICLES THAT USE THEM, APPLICABLE WITHOUT
DISCRIMINATION TO THOSE MOVING IN INTERSTATE COMMERCE AND TO THOSE
MOVING ONLY WITHIN THE STAE.  P. 184. 

2.  SUCH REGULATIONS BEING, IN GENERAL, WITHIN THE COMPETENCY OF THE
STATE, JUDICIAL INQUIRY INTO THEIR VALIDITY, UNDER THE COMMERCE CLAUSE
AS WELL AS UNDER THE FOURTEENTH AMENDMENT, IS LIMITED TO THE QUESTION
WHETHER THE RESTRICTIONS IMPOSED ARE REASONABLY ADAPTED TO THE END
SOUGHT.  P. 190. 

IN RESOLVING THIS QUESTION, THE COURT CAN NOT ACT AS CONGRESS DOES
WHEN, AFTER WEIGHING ALL THE CONFLICTING INTERESTS, STATE AND NATIONAL,
IT DETERMINES WHEN AND HOW MUCH THE STATE REGULATORY POWER SHALL YIELD
TO THE LARGER INTERESTS OF A NATIONAL COMMERCE; NOR IS IT CALLED UPON,
AS ARE STATE LEGISLATURES, TO DETERMINE WHAT, IN ITS JUDGMENT, IS THE
MOST SUITABLE RESTRICTION TO BE APPLIED OF THOSE THAT ARE POSSIBLE, OR
TO CHOOSE THAT ONE WHICH IN ITS OPINION IS BEST ADAPTED TO ALL THE
DIVERSE INTERESTS AFFECTED. 

3.  A SOUTH CAROLINA STATUTE PROHIBITS USE ON THE STATE HIGHWAYS OF
MOTOR TRUCKS AND "SEMI-TRAILER" MOTOR TRUCKS WIDER THAN 90 INCHES OR
HEAVIER, INCLUDING LOAD, THAN 20,000 LBS.  A FEDERAL COURT ENJOINED ITS
ENFORCEMENT ON SPECIFIED HIGHWAYS AS TO VEHICLES ENGAGED IN INTERSTATE
COMMERCE.  IT FOUND THAT MUCH OF THE INTERSTATE MOTOR-TRUCK TRAFFIC
NORMALLY PASSING OVER THESE HIGHWAYS WOULD BE BARRED FROM THE STATE IF
THE RESTRICTIONS WERE ENFORCED, AND CONCLUDED, THAT, IN THE LIGHT OF
THEIR EFFECT UPON INTERSTATE COMMERCE, THE RESTRICTIONS WERE
UNREASONABLE.  TO REACH THIS CONCLUSION, THE COURT WEIGHED CONFLICTING
EVIDENCE AND MADE ITS OWN DETERMINATIONS AS TO THE WEIGHT AND WIDTH OF
MOTOR TRUCKS COMMONLY USED IN INTERSTATE TRAFFIC AND THE CAPACITY OF
THE SPECIFIED HIGHWAYS TO ACCOMMODATE SUCH TRAFFIC WITHOUT INJURY TO
THEM OR DANGER TO THEIR USERS.  IT FOUND, AMONG OTHER THINGS, THAT
INTERSTATE CARRIAGE BY MOTOR TRUCK HAS BECOME A NATIONAL INDUSTRY; THAT
A VERY LARGE PROPORTION OF THE TRUCKS USED IN INTERSTATE TRANSPORTATION
ARE 96 INCHES WIDE AND OF GROSS WEIGHT, WHEN LOADED, OF MORE THAN 10
TONS; THAT THE SPECIFIED HIGHWAYS CONSTITUTE A CONNECTED SYSTEM,
IMPROVED WITH THE AID OF FEDERAL MONEY GRANTS, AS A PART OF A NATIONAL
SYSTEM; THAT NOT GROSS WEIGHT BUT WHEEL OR AXLE WEIGHT, IS THE FACTOR
TO BE CONSIDERED IN THE PRESERVATION OF CONCRETE HIGHWAYS; THAT THE
VEHICLES USED IN INTERSTATE COMMERCE ARE SO DESIGNED AND THE PRESSURE
OF THEIR WEIGHT IS SO DISTRIBUTED BY THEIR WHEELS AND AXLES THAT GROSS
LOADS OF MORE THAN 20,000 LBS. CAN BE CARRIED OVER CONCRETE ROADS
WITHOUT DAMAGE TO THE SURFACE; THAT THE HIGHWAYS IN QUESTION COULD
SUSTAIN WITHOUT INJURY A WHEEL LOAD OF FROM 8000 TO 9000 LBS, OR AN
AXLE LOAD OF DOUBLE THOSE WEIGHTS; THAT THE WEIGHT LIMITATION OF THE
STATUTE, ESPECIALLY AS APPLIED TO SEMI-TRAILER MOTOR TRUCKS, IS
UNREASONABLE AS A MEANS OF PRESERVING THE HIGHWAYS AND HAS NO
REASONABLE RELATION TO SAFETY OF THE PUBLIC USING THEM; AND THAT THE
WIDTH LIMITATION OF 90 INCHES IS UNREASONABLE WHEN APPLIED TO STANDARD
CONCRETE HIGHWAYS OF THE STATE, IN VIEW OF THE FACT THAT ALL OTHER
STATES PERMIT A WIDTH OF 96 INCHES, WHICH IS THE STANDARD WIDTH OF
TRUCKS ENGAGED IN INTERSTATE COMMERCE.  HELD: 

(1)  THAT SINCE THE ADOPTION OF ONE WEIGHT OR WIDTH REGULATION RATHER
THAN ANOTHER IS A LEGISLATIVE NOT A JUDICIAL CHOICE, CONSTITUTIONALITY
IS NOT TO BE DETERMINED BY WEIGHING IN THE JUDICIAL SCALES THE MERITS
OF THE LEGISLATIVE CHOICE AND REJECTING IT IF THE WEIGHT OF EVIDENCE
PRESENTED IN COURT APPEARS TO FAVOR A DIFFERENT STANDARD.  P. 191. 

(2)  THE LEGISLATIVE JUDGMENT IS PRESUMED TO BE SUPPORTED BY FACTS
KNOWN TO THE LEGISLATURE UNLESS FACTS JUDICIALLY KNOWN OR PROVED
PRECLUDE THAT POSSIBILITY.  ID. 

(3)  IN REVIEWING THE PRESENT DETERMINATION, THIS COURT MUST EXAMINE
THE RECORD, NOT TO SEE WHETHER THE FINDINGS OF THE COURT BELOW ARE
SUPPORTED BY EVIDENCE, BUT TO ASCERTAIN WHETHER IT IS POSSIBLE TO SAY
THAT THE LEGISLATIVE CHOICE IS WITHOUT RATIONAL BASIS.  ID. 

(4)  NOT ONLY DOES THE RECORD FAIL TO EXCLUDE THAT POSSIBILITY, BUT
IT SHOWS AFFIRMATIVELY THAT THERE IS ADEQUATE SUPPORT FOR THE
LEGISLATIVE JUDGMENT.  PP. 192 ET SEQ. 

SOUTH CAROLINA STATE HIGHWAY DEPARTMENT ET AL. V. BARNWELL BROTHERS,
INC., ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF SOUTH CAROLINA. 

APPEAL FROM A FINAL DECREE OF A DISTRICT COURT OF THREE JUDGES WHICH
ENJOINED THE SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, THE STATE PUBLIC
SERVICE COMMISSION AND NUMEROUS STATE OFFICERS, FROM ENFORCING, AS
AGAINST THE PLAINTIFFS WHILE ENGAGED IN INTERSTATE COMMERCE ON CERTAIN
SPECIFIED HIGHWAYS, A STATUTE LIMITING THE WEIGHT AND WIDTH OF MOTOR
TRUCKS AND "SEMI-TRAILER" TRUCKS.  THERE WAS A PROVISION IN THE DECREE
THAT THE INJUNCTION SHOULD NOT EXTEND TO BRIDGES NOT STRONG ENOUGH TO
SUPPORT HEAVY TRUCKS OR TOO NARROW TO ACCOMMODATE SUCH TRAFFIC SAFELY,
WITH A PROVISO THAT THE STATE HIGHWAY DEPARTMENT SHOULD POST CERTAIN
WARNING NOTICES AT SUCH BRIDGES, AND SHOULD ENFORCE THE LAW AGAINST
THEIR USE BY SUCH TRUCKS.  THE INTERSTATE COMMERCE COMMISSION AND TWO
PRIVATE CORPORATIONS WERE PERMITTED TO INTERVENE AS PLAINTIFFS, AND TWO
RAILROAD COMPANIES AND THE RECEIVER OF ANOTHER WERE PERMITTED TO
INTERVENE AS DEFENDANTS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

ACT NO. 259 OF THE GENERAL ASSEMBLY OF SOUTH CAROLINA, OF APRIL 28,
1933, 38 STAT. 340, PROHIBITS USE ON THE STATE HIGHWAYS OF MOTOR TRUCKS
AND "SEMI-TRAILER MOTOR TRUCKS" WHOSE WIDTH EXCEEDS 90 INCHES, AND
WHOSE WEIGHT INCLUDING LOAD EXCEEDS 20,000 POUNDS.  FOR PURPOSES OF THE
WEIGHT LIMITATION SEC. 2 OF THE STATUTE PROVIDES THAT A SEMITRAILER
MOTOR TRUCK, WHICH IS A MOTOR PROPELLED TRUCK WITH A TRAILER WHOSE
FRONT END IS DESIGNED TO BE ATTACHED TO AND SUPPORTED BY THE TRUCK,
SHALL BE CONSIDERED A SINGLE UNIT.  THE PRINCIPAL QUESTION FOR DECISION
IS WHETHER THESE PROHIBITIONS IMPOSE AN UNCONSTITUTIONAL BURDEN UPON
INTERSTATE COMMERCE. 

APPELLEES INCLUDE THE ORIGINAL PLAINTIFFS BELOW, WHO ARE TRUCKERS AND
INTERSTATE SHIPPERS; THE INTERSTATE COMMERCE COMMISSION; AND CERTAIN
OTHERS WHO WERE PERMITTED TO INTERVENE AS PARTIES PLAINTIFF.  THE SUIT
WAS BROUGHT IN THE DISTRICT COURT FOR EASTERN SOUTH CAROLINA AGAINST
VARIOUS STATE OFFICIALS, TO ENJOIN THEM FROM ENFORCING SECS. 4 AND 6 OF
THE ACT AMONG OTHERS,  FN1 ON THE GROUND THAT THEY HAVE BEEN SUPERSEDED
BY THE FEDERAL MOTOR CARRIER ACT OF 1935, C. 498, 49 STAT. 546; THAT
THEY INFRINGE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT; AND
THAT THEY IMPOSE AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE. 
CERTAIN RAILROADS INTERESTED IN RESTRICTING THE COMPETITION OF
INTERSTATE MOTOR CARRIERS WERE PERMITTED TO INTERVENE AS PARTIES
DEFENDANT. 

THE DISTRICT COURT OF THREE JUDGES, AFTER HEARING EVIDENCE, RULED
THAT THE CHALLENGED PROVISIONS OF THE STATUTE HAVE NOT BEEN SUPERSEDED
BY THE FEDERAL MOTOR CARRIER ACT, AND ADOPTED AS ITS OWN THE RULING OF
THE STATE SUPREME COURT IN STATE EX REL. DANIEL V. JOHN P. NUTT CO.,
180 S.C. 19; 185 S.E. 25, THAT THE CHALLENGED PROVISIONS, BEING AN
EXERCISE OF THE STATE'S POWER TO REGULATE THE USE OF ITS HIGHWAYS SO AS
TO PROTECT THEM FROM INJURY AND TO INSURE THEIR SAFE AND ECONOMICAL
USE, DO NOT VIOLATE THE FOURTEENTH AMENDMENT.  BUT IT HELD THAT THE
WEIGHT AND WIDTH PROHIBITIONS PLACE AN UNLAWFUL BURDEN ON INTERSTATE
MOTOR TRAFFIC PASSING OVER SPECIFIED HIGHWAYS OF THE STATE, WHICH FOR
THE MOST PART ARE OF CONCRETE OR A CONCRETE BASE SURFACED WITH
ASPHALT.  IT ACCORDINGLY ENJOINED THE ENFORCEMENT OF THE WEIGHT
PROVISION AGAINST INTERSTATE MOTOR CARRIERS ON THE SPECIFIED HIGHWAYS,
AND ALSO THE WIDTH LIMITATION OF 90 INCHES, EXCEPT IN THE CASE OF
VEHICLES EXCEEDING 96 INCHES IN WIDTH.  IT EXEMPTED FROM THE OPERATION
OF THE DECREE, BRIDGES ON THOSE HIGHWAYS "NOT CONSTRUCTED WITH
SUFFICIENT STRENGTH TO SUPPORT THE HEAVY TRUCKS OF MODERN TRAFFIC OR
TOO NARROW TO ACCOMMODATE SUCH TRAFFIC SAFELY," PROVIDED THE STATE
HIGHWAY DEPARTMENT SHOULD PLACE AT EACH END OF THE BRIDGE PROPER
NOTICES WARNING THAT THE USE OF THE BRIDGE IS FORBIDDEN BY TRUCKS
EXCEEDING THE WEIGHT OR WIDTH LIMITS AND PROVIDED THE PROPER
AUTHORITIES TAKE THE NECESSARY STEPS TO ENFORCE THE LAW AGAINST SUCH
USE OF THE BRIDGES.  THE CASE COMES HERE ON APPEAL UNDER SEC. 266 OF
THE JUDICIAL CODE. 

THE TRIAL COURT RESTED ITS DECISION THAT THE STATUTE UNREASONABLY
BURDENS INTERSTATE COMMERCE, UPON FINDINGS, NOT ASSAILED HERE, THAT
THERE IS A LARGE AMOUNT OF MOTOR TRUCK TRAFFIC PASSING INTERSTATE IN
THE SOUTHEASTERN PART OF THE UNITED STATES, WHICH WOULD NORMALLY PASS
OVER THE HIGHWAYS OF SOUTH CAROLINA, BUT WHICH WILL BE BARRED FROM THE
STATE BY THE CHALLENGED RESTRICTIONS IF ENFORCED, AND UPON ITS
CONCLUSION THAT, WHEN VIEWED IN THE LIGHT OF THEIR EFFECT UPON
INTERSTATE COMMERCE, THESE RESTRICTIONS ARE UNREASONABLE. 

TO REACH THIS CONCLUSION THE COURT WEIGHED CONFLICTING EVIDENCE AND
MADE ITS OWN DETERMINATIONS AS TO THE WEIGHT AND WIDTH OF MOTOR TRUCKS
COMMONLY USED IN INTERSTATE TRAFFIC AND THE CAPACITY OF THE SPECIFIED
HIGHWAYS OF THE STATE TO ACCOMMODATE SUCH TRAFFIC WITHOUT INJURY TO
THEM OR DANGER TO THEIR USERS.  IT FOUND THAT INTERSTATE CARRIAGE BY
MOTOR TRUCKS HAS BECOME A NATIONAL INDUSTRY; THAT FROM 85 TO 90% OF THE
MOTOR TRUCKS USED IN INTERSTATE TRANSPORTATION ARE 96 INCHES WIDE AND
OF A GROSS WEIGHT, WHEN LOADED, OF MORE THAN TEN TONS; THAT ONLY FOUR
OTHER STATES PRESCRIBE A GROSS LOAD WEIGHT AS LOW AS 20,000 POUNDS; AND
THAT THE AMERICAN ASSOCIATION OF STATE HIGHWAY OFFICIALS AND THE
NATIONAL CONFERENCE ON STREET AND HIGHWAY SAFETY IN THE DEPARTMENT OF
COMMERCE HAVE RECOMMENDED FOR ADOPTION WEIGHT AND WIDTH LIMITATIONS IN
WHICH WEIGHT IS LIMITED TO AXLE LOADS OF 16,000 TO 18,000 POUNDS AND
WIDTH IS LIMITED TO 96 INCHES. 

IT FOUND IN DETAIL THAT COMPLIANCE WITH THE WEIGHT AND WIDTH
LIMITATIONS DEMANDED BY THE SOUTH CAROLINA ACT WOULD SERIOUSLY IMPEDE
MOTOR TRUCK TRAFFIC PASSING TO AND THROUGH THE STATE AND INCREASE ITS
COST; THAT 2,417 MILES OF STATE HIGHWAYS, INCLUDING MOST OF THOSE
AFFECTED BY THE INJUNCTION, ARE OF THE STANDARD CONSTRUCTION OF
CONCRETE OR CONCRETE BASE WITH ASPHALT SURFACE, 7 1/2 OR 8 INCHES THICK
AT THE EDGES AND 6 OR 6 1/2 INCHES THICK AT THE CENTER; THAT THEY ARE
CAPABLE OF SUSTAINING WITHOUT INJURY A WHEEL LOAD OF 8,000 TO 9,000
POUNDS OR AN AXLE LOAD OF DOUBLE THOSE AMOUNTS, DEPENDING ON WHETHER
THE WHEELS ARE EQUIPPED WITH HIGH PRESSURE OR LOW PRESSURE PNEUMATIC
TIRES; THAT ALL BUT 100 MILES OF THE SPECIFIED HIGHWAYS ARE FROM 18 TO
20 FEET IN WIDTH; THAT THEY CONSTITUTE A CONNECTED SYSTEM OF HIGHWAYS
WHICH HAVE BEEN IMPROVED WITH THE AID OF FEDERAL MONEY GRANTS, AS A
PART OF A NATIONAL SYSTEM OF HIGHWAYS; AND THAT THEY CONSTITUTE ONE OF
THE BEST HIGHWAY SYSTEMS IN THE SOUTHEASTERN PART OF THE UNITED
STATES. 

IT ALSO FOUND THAT THE GROSS WEIGHT OF VEHICLES IS NOT A FACTOR TO BE
CONSIDERED IN THE PRESERVATION OF CONCRETE HIGHWAYS, BUT THAT THE
APPROPRIATE FACTOR TO BE CONSIDERED IS WHEEL OR AXLE WEIGHT; THE
VEHICLES ENGAGED IN INTERSTATE COMMERCE ARE SO DESIGNED AND THE
PRESSURE OF THEIR WEIGHT IS SO DISTRIBUTED BY THEIR WHEELS AND AXLES
THAT GROSS LOADS OF MORE THAN 20,000 POUNDS CAN BE CARRIED OVER
CONCRETE ROADS WITHOUT DAMAGE TO THE SURFACE; THAT A GROSS WEIGHT
LIMITATION OF THAT AMOUNT, ESPECIALLY AS APPLIED TO SEMI-TRAILER MOTOR
TRUCKS, IS UNREASONABLE AS A MEANS OF PRESERVING THE HIGHWAYS; THAT IT
HAS NO REASONABLE RELATION TO SAFETY OF THE PUBLIC USING THE HIGHWAYS;
AND THAT THE WIDTH LIMITATION OF 90 INCHES IS UNREASONABLE WHEN APPLIED
TO STANDARD CONCRETE HIGHWAYS OF THE STATE, IN VIEW OF THE FACT THAT
ALL OTHER STATES PERMIT A WIDTH OF 96 INCHES, WHICH IS THE STANDARD
WIDTH OF TRUCKS ENGAGED IN INTERSTATE COMMERCE. 

IN REACHING THESE CONCLUSIONS, AND AT THE SAME TIME HOLDING THAT THE
WEIGHT AND WIDTH LIMITATIONS DO NOT INFRINGE THE FOURTEENTH AMENDMENT,
THE COURT PROCEEDED UPON THE ASSUMPTION THAT THE COMMERCE CLAUSE
IMPOSES UPON STATE REGULATIONS TO SECURE THE SAFE AND ECONOMICAL USE OF
HIGHWAYS A STANDARD OF REASONABLENESS WHICH IS MORE EXACTING WHEN
APPLIED TO THE INTERSTATE TRAFFIC THAN THAT REQUIRED BY THE FOURTEENTH
AMENDMENT AS TO ALL TRAFFIC; THAT A STANDARD OF WEIGHT AND WIDTH OF
MOTOR VEHICLES WHICH IS AN APPROPRIATE STATE REGULATION WHEN APPLIED TO
INTRASTATE TRAFFIC MAY BE PROHIBITED BECAUSE OF ITS EFFECT ON
INTERSTATE COMMERCE, ALTHOUGH THE CONDITIONS ATTENDING THE TWO CLASSES
OF TRAFFIC WITH RESPECT TO SAFETY AND PROTECTION OF THE HIGHWAYS ARE
THE SAME. 

SOUTH CAROLINA HAS BUILT ITS HIGHWAYS AND OWNS AND MAINTAINS THEM. 
IT HAS RECEIVED FROM THE FEDERAL GOVERNMENT, IN AID OF ITS HIGHWAY
IMPROVEMENTS, MONEY GRANTS WHICH HAVE BEEN EXPENDED UPON THE HIGHWAYS
TO WHICH THE INJUNCTION APPLIES.  BUT APPELLEES DO NOT CHALLENGE HERE
THE RULING OF THE DISTRICT COURT THAT CONGRESS HAS NOT UNDERTAKEN TO
REGULATE THE WEIGHT AND SIZE OF MOTOR VEHICLES IN INTERSTATE MOTOR
TRAFFIC, AND HAS LEFT UNDISTURBED WHATEVER AUTHORITY IN THAT REGARD THE
STATES HAVE RETAINED UNDER THE CONSTITUTION. 

WHILE THE CONSTITUTIONAL GRANT TO CONGRESS OF POWER TO REGULATE
INTERSTATE COMMERCE HAS BEEN HELD TO OPERATE OF ITS OWN FORCE TO
CURTAIL STATE POWER IN SOME MEASURE,  FN2  IT DID NOT FORESTALL ALL
STATE ACTION AFFECTING INTERSTATE COMMERCE.  EVER SINCE WILLSON V.
BLACK BIRD CREEK MARSH CO., 2 PET. 245, AND COOLEY V. BOARD OF PORT
WARDENS, 12 HOW.  299, IT HAS BEEN RECOGNIZED THAT THERE ARE MATTERS OF
LOCAL CONCERN, THE REGULATION OF WHICH UNAVOIDABLY INVOLVES SOME
REGULATION OF INTERSTATE COMMERCE BUT WHICH, BECAUSE OF THEIR LOCAL
CHARACTER AND THEIR NUMBER AND DIVERSITY, MAY NEVER BE FULLY DEALT WITH
BY CONGRESS.  NOTHWITHSTANDING THE COMMERCE CLAUSE, SUCH REGULATION IN
THE ABSENCE OF CONGRESSIONAL ACTION HAS FOR THE MOST PART BEEN LEFT TO
THE STATES BY THE DECISIONS OF THIS COURT, SUBJECT TO THE OTHER
APPLICABLE CONSTITUTIONAL RESTRAINTS. 

THE COMMERCE CLAUSE, BY ITS OWN FORCE, PROHIBITS DISCRIMINATION
AGAINST INTERSTATE COMMERCE, WHATEVER ITS FORM OR METHOD, AND THE
DECISIONS OF THIS COURT HAVE RECOGNIZED THAT THERE IS SCOPE FOR ITS
LIKE OPERATION WHEN STATE LEGISLATION NOMINALLY OF LOCAL CONCERN IS IN
POINT OF FACT AIMED AT INTERSTATE COMMERCE, OR BY ITS NECESSARY
OPERATION IS A MEANS OF GAINING A LOCAL BENEFIT BY THROWING THE
ATTENDANT BURDENS ON THOSE WITHOUT THE STATE.  ROBBINS V. SHELBY COUNTY
TAXING DISTRICT, 120 U.S. 489, 498; CALDWELL V. NORTH CAROLINA, 187
U.S. 622, 626.  FN3  IT WAS TO END THESE PRACTICES THAT THE COMMERCE
CLAUSE WAS ADOPTED.  SEE GIBBONS V. OGDEN, 9 WHEAT.  1, 187; BROWN V.
MARYLAND, 12 WHEAT.  419, 438-439; COOLEY V. BOARD OF PORT WARDENS,
SUPRA; STATE FREIGHT TAX, 15 WALL.  232, 280; STATE TAX ON RAILWAY
GROSS RECEIPTS, 15 WALL.  284, 289, 297-298; COOK V. PENNSYLVANIA, 97
U.S. 566, 574; MAINE V. GRAND TRUNK R. CO., 142 U.S. 217; BALDWIN V.
SEELIG, 294 U.S. 511, 522; II FARRAND, RECORDS OF THE FEDERAL
CONVENTION, 308; III ID. 478, 574, 548; THE FEDERALIST, NO. XLII; 1
CURTIS, HISTORY OF THE CONSTITUTION, 502; STORY ON THE CONSTITUTION,
SEC. 259.  THE COMMERCE CLAUSE HAS ALSO BEEN THOUGHT TO SET ITS OWN
LIMITATION UPON STATE CONTROL OF INTERSTATE RAIL CARRIERS SO AS TO
PRECLUDE THE SUBORDINATION OF THE EFFICIENCY AND CONVENIENCE OF
INTERSTATE TRAFFIC TO LOCAL SERVICE REQUIREMENTS.  FN4 

BUT THE PRESENT CASE AFFORDS NO OCCASION FOR SAYING THAT THE BARE
POSSESSION OF POWER BY CONGRESS TO REGULATE THE INTERSTATE TRAFFIC
FORCES THE STATES TO CONFORM TO STANDARDS WHICH CONGRESS MIGHT, BUT HAS
NOT ADOPTED, OR CURTAILS THEIR POWER TO TAKE MEASURES TO INSURE THE
SAFETY AND CONSERVATION OF THEIR HIGHWAYS WHICH MAY BE APPLIED TO LIKE
TRAFFIC MOVING INTRASTATE.  FEW SUBJECTS OF STATE REGULATION ARE SO
PECULIARLY OF LOCAL CONCERN AS IS THE USE OF STATE HIGHWAYS.  THERE ARE
FEW, LOCAL REGULATION OF WHICH IS SO INSEPARABLE FROM A SUBSTANTIAL
EFFECT ON INTERSTATE COMMERCE.  UNLIKE THE RAILROADS, LOCAL HIGHWAYS
ARE BUILT, OWNED AND MAINTAINED BY THE STATE OR ITS MUNICIPAL
SUBDIVISIONS.  THE STATE HAS A PRIMARY AND IMMEDIATE CONCERN IN THEIR
SAFE AND ECONOMICAL ADMINISTRATION.  THE PRESENT REGULATIONS, OR ANY
OTHERS OF LIKE PURPOSE, IF THEY ARE TO ACCOMPLISH THEIR END, MUST BE
APPLIED ALIKE TO INTERSTATE AND INTRASTATE TRAFFIC BOTH MOVING IN LARGE
VOLUME OVER THE HIGHWAYS.  THE FACT THAT THEY AFFECT ALIKE SHIPPERS IN
INTERSTATE AND INTRASTATE COMMERCE IN LARGE NUMBER WITHIN AS WELL AS
WITHOUT THE STATE IS A SAFEGUARD AGAINST THEIR ABUSE. 

FROM THE BEGINNING IT HAS BEEN RECOGNIZED THAT A STATE CAN, IF IT
SEES FIT, BUILD AND MAINTAIN ITS OWN HIGHWAYS, CANALS AND RAILROADS AND
THAT IN THE ABSENCE OF CONGRESSIONAL ACTION THEIR REGULATION IS
PECULIARLY WITHIN ITS COMPETENCE, EVEN THOUGH INTERSTATE COMMERCE IS
MATERIALLY AFFECTED.  MINNESOTA RATE CASES, 230 U.S. 352, 416. 
CONGRESS NOT ACTING, STATE REGULATION OF INTRASTATE CARRIERS HAS BEEN
UPHELD REGARDLESS OF ITS EFFECT UPON INTERSTATE COMMERCE.  ID.  WITH
RESPECT TO THE EXTENT AND NATURE OF THE LOCAL INTERESTS TO BE PROTECTED
AND THE UNAVOIDABLE EFFECT UPON INTERSTATE AND INTRASTATE COMMERCE
ALIKE, REGULATIONS OF THE USE OF THE HIGHWAYS ARE AKIN TO LOCAL
REGULATION OF RIVERS, HARBORS, PIERS AND DOCKS, QUARANTINE REGULATIONS,
AND GAME LAWS, WHICH, CONGRESS NOT ACTING, HAVE BEEN SUSTAINED EVEN
THOUGH THEY MATERIALLY INTERFERE WITH INTERSTATE COMMERCE.  FN5    THE
NATURE OF THE AUTHORITY OF THE STATE OVER ITS OWN HIGHWAYS HAS OFTEN
BEEN POINTED OUT BY THIS COURT.  IT MAY NOT, UNDER THE GUISE OF
REGULATION, DISCRIMINATE AGAINST INTERSTATE COMMERCE.  BUT "IN THE
ABSENCE OF NATIONAL LEGISLATION ESPECIALLY COVERING THE SUBJECT OF
INTERSTATE COMMERCE, THE STATE MAY RIGHTLY PRESCRIBE UNIFORM
REGULATIONS ADAPTED TO PROMOTE SAFETY UPON ITS HIGHWAYS AND THE
CONSERVATION OF THEIR USE, APPLICABLE ALIKE TO VEHICLES MOVING IN
INTERSTATE COMMERCE AND THOSE OF ITS OWN CITIZENS."  MORRIS V. DUBY,
274 U.S. 135, 143.  THIS FORMULATION HAS BEEN REPEATEDLY AFFIRMED,
CLARK V. POOR, 274 U.S. 554, 557; SPROUT V. SOUTH BEND, 277 U.S. 163,
169; SPROLES V. BINFORD, 286 U.S. 374, 389, 390; CF. MORF V. BINGAMAN,
298 U.S. 407, AND NEVER DISAPPROVED.  THIS COURT HAS OFTEN SUSTAINED
THE EXERCISE OF THAT POWER ALTHOUGH IT HAS BURDENED OR IMPEDED
INTERSTATE COMMERCE.  IT HAS UPHELD WEIGHT LIMITATIONS LOWER THAN THOSE
PRESENTLY IMPOSED, APPLIED ALIKE TO MOTOR TRAFFIC MOVING INTERSTATE AND
INTRASTATE.  MORRIS V. DUBY, SUPRA; SPROLES V. BINFORD, SUPRA.
RESTRICTIONS FAVORING PASSENGER TRAFFIC OVER THE CARRIAGE OF INTERSTATE
MERCHANDISE BY TRUCK HAVE BEEN SIMILARLY SUSTAINED, SPROLES V. BINFORD,
SUPRA; BRADLEY V. PUBLIC UTILITIES COMM'N, 289 U.S. 92, AS HAS THE
EXACTION OF A REASONABLE FEE FOR THE USE OF THE HIGHWAYS.  HENDRICK V.
MARYLAND, 235 U.S. 610; KANE V. NEW JERSEY, 242 U.S. 160; INTERSTATE
BUSSES CORP. V. BLODGETT, 276 U.S. 245; MORF V. BINGAMAN, SUPRA; CF.
INGELS V. MORF, 300 U.S. 290. 

IN EACH OF THESE CASES REGULATION INVOLVES A BURDEN ON INTERSTATE
COMMERCE.  BUT SO LONG AS THE STATE ACTION DOES NOT DISCRIMINATE, THE
BURDEN IS ONE WHICH THE CONSTITUTION PERMITS BECAUSE IT IS AN
INSEPARABLE INCIDENT OF THE EXERCISE OF A LEGISLATIVE AUTHORITY, WHICH,
UNDER THE CONSTITUTION, HAS BEEN LEFT TO THE STATES. 

CONGRESS, IN THE EXERCISE OF ITS PLENARY POWER TO REGULATE INTERSTATE
COMMERCE, MAY DETERMINE WHETHER THE BURDENS IMPOSED ON IT BY STATE
REGULATION, OTHERWISE PERMISSIBLE, ARE TOO GREAT, AND MAY, BY
LEGISLATION DESIGNED TO SECURE UNIFORMITY OR IN OTHER RESPECTS TO
PROTECT THE NATIONAL INTEREST IN THE COMMERCE, CURTAIL TO SOME EXTENT
THE STATE'S REGULATORY POWER.  BUT THAT IS A LEGISLATIVE, NOT A
JUDICIAL FUNCTION, TO BE PERFORMED IN THE LIGHT OF THE CONGRESSIONAL
JUDGMENT OF WHAT IS APPROPRIATE REGULATION OF INTERSTATE COMMERCE, AND
THE EXTENT TO WHICH, IN THAT FIELD, STATE POWER AND LOCAL INTERESTS
SHOULD BE REQUIRED TO YIELD TO THE NATIONAL AUTHORITY AND INTEREST.  IN
THE ABSENCE OF SUCH LEGISLATION THE JUDICIAL FUNCTION, UNDER THE
COMMERCE CLAUSE AS WELL AS THE FOURTEENTH AMENDMENT, STOPS WITH THE
INQUIRY WHETHER THE STATE LEGISLATURE IN ADOPTING REGULATIONS SUCH AS
THE PRESENT HAS ACTED WITHIN ITS PROVINCE, AND WHETHER THE MEANS OF
REGULATION CHOSEN ARE REASONABLY ADAPTED TO THE END SOUGHT.  SPROLES V.
BINFORD, SUPRA; STEPHENSON V. BINFORD, 287 U.S. 251, 272. 

HERE THE FIRST INQUIRY HAS ALREADY BEEN RESOLVED BY OUR DECISIONS
THAT A STATE MAY IMPOSE NON-DISCRIMINATORY RESTRICTIONS WITH RESPECT TO
THE CHARACTER OF MOTOR VEHICLES MOVING IN INTERSTATE COMMERCE AS A
SAFETY MEASURE AND AS A MEANS OF SECURING THE ECONOMICAL USE OF ITS
HIGHWAYS.  IN RESOLVING THE SECOND, COURTS DO NOT SIT AS LEGISLATURES,
EITHER STATE OR NATIONAL.  THEY CANNOT ACT AS CONGRESS DOES WHEN, AFTER
WEIGHING ALL THE CONFLICTING INTERESTS, STATE AND NATIONAL, IT
DETERMINES WHEN AND HOW MUCH THE STATE REGULATORY POWER SHALL YIELD TO
THE LARGER INTERESTS OF A NATIONAL COMMERCE.  AND IN REVIEWING A STATE
HIGHWAY REGULATION WHERE CONGRESS HAS NOT ACTED, A COURT IS NOT CALLED
UPON, AS ARE STATE LEGISLATURES, TO DETERMINE WHAT, IN ITS JUDGMENT, IS
THE MOST SUITABLE RESTRICTION TO BE APPLIED OF THOSE THAT ARE POSSIBLE,
OR TO CHOOSE THAT ONE WHICH IN ITS OPINION IS BEST ADAPTED TO ALL THE
DIVERSE INTERESTS AFFECTED.  TRANSPORTATION CO. V. PARKERSBURG, 107
U.S. 691, 695.  WHEN THE ACTION OF A LEGISLATURE IS WITHIN THE SCOPE OF
ITS POWER, FAIRLY DEBATABLE QUESTIONS AS TO ITS REASONABLENESS, WISDOM
AND PROPRIETY ARE NOT FOR THE DETERMINATION OF COURTS, BUT FOR THE
LEGISLATIVE BODY, ON WHICH RESTS THE DUTY AND RESPONSIBILITY OF
DECISION.  JACOBSON V. MASSACHUSETTS, 197 U.S. 11, 30; LAUREL HILL
CEMETERY V. SAN FRANCISCO, 216 U.S. 358, 365; PRICE V. ILLINOIS, 238
U.S. 446, 451; HADACHECK V. SEBASTIAN, 239 U.S. 394, 408-414; THOMAS
CUSACK CO. V. CHICAGO, 242 U.S. 526, 530; EUCLID V. AMBLER REALTY CO.,
272 U.S. 365, 388; ZAHN V. BOARD OF PUBLIC WORKS, 274 U.S. 325, 328;
STANDARD OIL CO. V. MARYSVILLE, 279 U.S. 582, 584.  THIS IS EQUALLY THE
CASE WHEN THE LEGISLATIVE POWER IS ONE WHICH MAY LEGITIMATELY PLACE AN
INCIDENTAL BURDEN ON INTERSTATE COMMERCE.  IT IS NOT ANY THE LESS A
LEGISLATIVE POWER COMMITTED TO THE STATES BECAUSE IT AFFECTS INTERSTATE
COMMERCE, AND COURTS ARE NOT ANY THE MORE ENTITLED, BECAUSE INTERSTATE
COMMERCE IS AFFECTED, TO SUBSTITUTE THEIR OWN FOR THE LEGISLATIVE
JUDGMENT.  MORRIS V. DUBY, SUPRA, 143; SPROLES V. BINFORD, SUPRA, 389,
390; MINNESOTA RATE CASES, SUPRA, 399, 400; SMITH V. ST. LOUIS & S.W.R.
CO., 181 U.S. 248, 257; REID V. COLORADO, 187 U.S. 137, 152; NEW YORK
EX REL. SILZ V. HESTERBERG, 211 U.S. 31, 42, 43. 

SINCE THE ADOPTION OF ONE WEIGHT OR WIDTH REGULATION, RATHER THAN
ANOTHER, IS A LEGISLATIVE NOT A JUDICIAL CHOICE, ITS CONSTITUTIONALITY
IS NOT TO BE DETERMINED BY WEIGHING IN THE JUDICIAL SCALES THE MERITS
OF THE LEGISLATIVE CHOICE AND REJECTING IT IF THE WEIGHT OF EVIDENCE
PRESENTED IN COURT APPEARS TO FAVOR A DIFFERENT STANDARD.  CF.
WORCESTER COUNTY TRUST CO. V. RILEY, 302 U.S. 292, 299.  BEING A
LEGISLATIVE JUDGMENT IT IS PRESUMED TO BE SUPPORTED BY FACTS KNOWN TO
THE LEGISLATURE UNLESS FACTS JUDICIALLY KNOWN OR PROVED PRECLUDE THAT
POSSIBILITY.  HENCE, IN REVIEWING THE PRESENT DETERMINATION WE EXAMINE
THE RECORD, NOT TO SEE WHETHER THE FINDINGS OF THE COURT BELOW ARE
SUPPORTED BY EVIDENCE, BUT TO ASCERTAIN UPON THE WHOLE RECORD WHETHER
IT IS POSSIBLE TO SAY THAT THE LEGISLATIVE CHOICE IS WITHOUT RATIONAL
BASIS.  STANDARD OIL CO. V. MARYSVILLE, SUPRA; BORDEN'S FARM PRODUCTS
CO. V. TEN EYCK, 297 U.S. 251, 263; S.C. 11 F.SUPP.  599, 600.  NOT
ONLY DOES THE RECORD FAIL TO EXCLUDE THAT POSSIBILITY, BUT IT SHOWS
AFFIRMATIVELY THAT THERE IS ADEQUATE SUPPORT FOR THE LEGISLATIVE
JUDGMENT. 

AT THE OUTSET IT SHOULD BE NOTED THAT UNDERLYING MUCH OF THE
CONTROVERSY IS THE RELATIVE MERIT OF A GROSS WEIGHT LIMITATION AS
AGAINST AN AXLE OR WHEEL WEIGHT LIMITATION.  WHILE THERE IS EVIDENCE
THAT WEIGHT STRESSES ON CONCRETE ROADS ARE DETERMINED BY WHEEL RATHER
THAN GROSS LOAD WEIGHTS, OTHER ELEMENTS ENTER INTO CHOICE OF THE TYPE
OF WEIGHT LIMITATION.  THERE IS TESTIMONY TO SHOW THAT THE AXLE OR
WHEEL WEIGHT LIMITATION IS THE MORE EASILY ENFORCED THROUGH RESORT TO
WEIGHING DEVICES ADAPTED TO ASCERTAINING READILY THE AXLE OR WHEEL
WEIGHT.  BUT IT APPEARS THAT IN PRACTICE THE WEIGHT OF TRUCK LOADS IS
NOT EVENLY DISTRIBUTED OVER AXLES AND WHEELS; THAT COMMONLY THE LARGER
PART OF THE LOAD - SOMETIMES AS MUCH AS 70 TO 80% - RESTS ON THE REAR
AXLE AND THAT IT IS MUCH EASIER FOR THOSE WHO LOAD TRUCKS TO MAKE
CERTAIN THAT THEY HAVE COMPLIED WITH A GROSS LOAD WEIGHT LIMITATION
THAN WITH AN AXLE OR WHEEL WEIGHT LIMITATION.  WHILE THE REPORT OF THE
NATIONAL CONFERENCE ON STATE AND HIGHWAY SAFETY, ON WHICH THE COURT
BELOW RELIED, SUGGESTED A WHEEL WEIGHT LIMITATION OF 8,000 OR 9,000
POUNDS, IT ALSO SUGGESTED THAT A GROSS WEIGHT LIMITATION MIGHT BE
ADOPTED AND SHOULD BE SUBJECT TO THE RECOMMENDED WHEEL LIMITATION.  BUT
THE CONFERENCE DECLINED TO FIX THE AMOUNT OF GROSS WEIGHT LIMITATION,
SAYING:  "IN VIEW OF THE VARYING CONDITIONS OF TRAFFIC, AND LACK OF
UNIFORMITY IN HIGHWAY CONSTRUCTION IN THE SEVERAL STATES, NO UNIFORM
GROSS-WEIGHT LIMITATIONS ARE HERE RECOMMENDED FOR GENERAL ADOPTION
THROUGHOUT THE COUNTRY."  THE CHOICE OF A WEIGHT LIMITATION BASED ON
CONVENIENCE OF APPLICATION AND CONSEQUENT LACK OF NEED FOR RIGID
SUPERVISORY ENFORCEMENT IS FOR THE LEGISLATURE, AND WE CANNOT SAY THAT
ITS PREFERENCE FOR THE ONE OVER THE OTHER IS IN ANY SENSE ARBITRARY OR
UNREASONABLE.  THE CHOICE IS NOT TO BE CONDEMNED BECAUSE THE
LEGISLATURE PREFERS A WORKABLE STANDARD, LESS LIKELY TO BE VIOLATED
THAN ANOTHER UNDER WHICH THE VIOLATIONS WILL PROBABLY BE INCREASED BUT
MORE EASILY DETECTED.  IT IS FOR THE LEGISLATURE TO SAY WHETHER THE ONE
TEST OR THE OTHER WILL IN PRACTICAL OPERATION BETTER PROTECT THE
HIGHWAYS FROM THE RISK OF EXCESSIVE LOADS. 

IF GROSS LOAD WEIGHT IS ADOPTED AS THE TEST IT IS OBVIOUS THAT THE
PERMISSIBLE LOAD MUST BE SOMEWHAT LIGHTER THAN IF THE AXLE OR WHEEL
WEIGHT TEST WERE APPLIED.  WITH THE LATTER THE GROSS WEIGHT OF A LOADED
MOTOR TRUCK CAN NEVER EXCEED TWICE THE AXLE AND FOUR TIMES THE WHEEL
LIMIT.  BUT THE FACT THAT THE REAR AXLE MAY AND OFTEN DOES SUPPORT AS
MUCH AS 70 OR 80% OF THE GROSS LOAD, WITH WHEEL WEIGHT IN LIKE
PROPORTION, REQUIRES THAT A GROSS LOAD LIMIT BE FIXED AT CONSIDERABLY
LESS THAN FOUR TIMES THE PERMISSIBLE WHEEL LIMIT. 

THERE WAS TESTIMONY BEFORE THE COURT TO SUPPORT ITS CONCLUSION THAT
THE HIGHWAYS IN QUESTION ARE CAPABLE OF SUSTAINING WITHOUT INJURY A
WHEEL LOAD OF 8,000 OR 9,000 POUNDS, THE DIFFERENCE DEPENDING UPON THE
CHARACTER OF THE TIRE IN USE, AS AGAINST A WHEEL LOAD OF AS MUCH AS
8,000 POUNDS, WHICH WOULD BE POSSIBLE UNDER THE STATUTORY LOAD LIMIT OF
20,000 POUNDS AS APPLIED TO MOTOR TRUCKS, AND APPROXIMATES THE AXLE
LIMIT IN ADDITION TO THE GROSS LOAD LIMIT RECOMMENDED BY THE NATIONAL
CONFERENCE ON STREET AND HIGHWAY SAFETY.  MUCH OF THIS TESTIMONY
APPEARS TO HAVE BEEN BASED ON THEORETICAL STRENGTH OF CONCRETE HIGHWAYS
LAID UNDER IDEAL CONDITIONS, AND NONE OF IT WAS BASED ON AN ACTUAL
STUDY OF THE HIGHWAYS OF SOUTH CAROLINA OR OF THE SUBGRADE AND OTHER
ROAD BUILDING CONDITIONS WHICH PREVAIL THERE AND WHICH HAVE A MATERIAL
BEARING ON THE STRENGTH AND DURABILITY OF SUCH HIGHWAYS.  THERE IS
UNCONTRADICTED TESTIMONY THAT APPROXIMATELY 60% OF THE SOUTH CAROLINA
STANDARD PAVED HIGHWAYS IN QUESTION WERE BUILT WITHOUT A LONGITUDINAL
CENTER JOINT WHICH HAS SINCE BECOME STANDARD PRACTICE, THE PORTION OF
THE CONCRETE SURFACE ADJACENT TO THE JOINT BEING STRENGTHENED BY
REINFORCEMENT OR BY INCREASING ITS THICKNESS; AND THAT OWING TO THE
DISTRIBUTION OF THE STRESSES ON CONCRETE ROADS WHEN IN USE, THOSE
WITHOUT A CENTER JOINT HAVE A TENDENCY TO DEVELOP IRREGULAR
LONGITUDINAL CRACKS.  AS THE CONCRETE IN THE CENTER OF SUCH ROADS IS
THINNER THAN THAT AT THE EDGES, THE RESULT IS THAT THE HIGHWAY IS SPLIT
INTO TWO IRREGULAR SEGMENTS, EACH WITH A WEAK INNER EDGE WHICH,
ACCORDING TO THE EXPERT TESTIMONY, IS NOT CAPABLE OF SUPPORTING
INDEFINITELY WHEEL LOADS IN EXCESS OF 4,200 POUNDS. 

THERE IS LITTLE IN THE RECORD TO MARK ANY CONTROLLING DISTINCTION
BETWEEN THE APPLICATION OF THE GROSS LOAD WEIGHT LIMITATION TO THE
MOTOR TRUCK AND TO THE SEMITRAILER MOTOR TRUCK.  THERE IS TESTIMONY
WHICH IS APPLICABLE TO BOTH TYPES OF VEHICLE, THAT IN CASE OF ACCIDENT
THE DANGER FROM THE MOMENTUM OF A COLLIDING VEHICLE INCREASES WITH
GROSS LOAD WEIGHT.  THE RECORD IS WITHOUT CONVINCING EVIDENCE OF THE
ACTUAL DISTRIBUTION, IN PRACTICE, OF THE GROSS LOAD WEIGHT OVER THE
WHEELS AND AXLES OF THE PERMISSIBLE TYPES OF SEMI-TRAILER MOTOR TRUCKS,
BUT THIS DOES NOT ENABLE US TO SAY THAT THE LEGISLATURE WAS WITHOUT
SUBSTANTIAL GROUND FOR CONCLUDING THAT THE RELATIVE ADVANTAGES OF A
GROSS LOAD OVER A WHEEL WEIGHT LIMITATION ARE SUBSTANTIALLY THE SAME
FOR THE TWO TYPES, OR THAT IT COULD NOT HAVE CONCLUDED THAT THEY WERE
SO NEARLY ALIKE FOR REGULATORY PURPOSES AS TO JUSTIFY THE ADOPTION OF A
SINGLE STANDARD FOR BOTH, AS A MATTER OF PRACTICAL CONVENIENCE.  EVEN
IF THE LEGISLATURE WERE TO ACCEPT APPELLEES' ASSUMPTION THAT NET LOAD
WEIGHTS ARE, IN PRACTICE, EVENLY DISTRIBUTED OVER THE WHEELS SUPPORTING
THE LOAD OF A PERMISSIBLE SEMI-TRAILER SO THAT WITH THE STATUTORY GROSS
LOAD LIMIT THE LOAD ON THE REAR AXLE WOULD BE ABOUT 8,000 POUNDS IT
MIGHT, AS WE HAVE SEEN, ALSO CONCLUDE THAT THE DANGER POINT WOULD THEN
HAVE BEEN REACHED IN THE CASE OF SOME 1,200 MILES OF CONCRETE STATE
ROADS CONSTRUCTED WITHOUT A CENTER JOINT. 

THESE CONSIDERATIONS, WITH THE PRESUMPTION OF CONSTITUTIONALITY,
AFFORD ADEQUATE SUPPORT FOR THE WEIGHT LIMITATION WITHOUT REFERENCE TO
OTHER ITEMS OF THE TESTIMONY TENDING TO SUPPORT IT. FURTHERMORE, SOUTH
CAROLINA'S OWN EXPERIENCE IS NOT TO BE IGNORED.  BEFORE ADOPTION OF THE
LIMITATION SOUTH CAROLINA HAD HAD EXPERIENCE WITH HIGHER WEIGHT
LIMITS.  IN 1924 IT HAD ADOPTED A COMBINED GROSS WEIGHT LIMIT OF 20,000
POUNDS FOR VEHICLES OF FOUR WHEELS OR LESS, AND AN AXLE WEIGHT LIMIT OF
15,000 POUNDS.  IN 1930 IT HAD ADOPTED A COMBINED GROSS WEIGHT LIMIT OF
12 1/2 TONS WITH A FIVE TON AXLE WEIGHT LIMIT FOR VEHICLES HAVING MORE
THAN TWO AXLES.  ACT NO. 721, 33 STAT. 1182; ACT NO. 685, 36 STAT.
1192, 1193.  IN 1931 IT APPOINTED A COMMISSION TO INVESTIGATE MOTOR
TRANSPORTATION IN THE STATE, TO RECOMMEND LEGISLATION, AND TO REPORT IN
1932.  THE PRESENT WEIGHT LIMITATION WAS RECOMMENDED BY THE COMMISSION
AFTER A FULL CONSIDERATION OF RELEVANT DATA, INCLUDING A REPORT BY THE
STATE ENGINEER WHO HAD CONSTRUCTED THE CONCRETE HIGHWAYS OF THE STATE
AND WHO ADVISED A SOMEWHAT LOWER LIMITATION AS NECESSARY FOR THEIR
PRESERVATION.  THE FACT THAT MANY STATES HAVE ADOPTED A DIFFERENT
STANDARD IS NOT PERSUASIVE.  THE CONDITIONS UNDER WHICH HIGHWAYS MUST
BE BUILT IN THE SEVERAL STATES, THEIR CONSTRUCTION AND THE DEMANDS MADE
UPON THEM, ARE NOT UNIFORM.  THE ROAD BUILDING ART, AS THE RECORD
SHOWS, IS FAR FROM HAVING ATTAINED A SCIENTIFIC CERTAINTY AND
PRECISION, AND SCIENTIFIC PRECISION IS NOT THE CRITERION FOR THE
EXERCISE OF THE CONSTITUTIONAL REGULATORY POWER OF THE STATES.  SPROLES
V. BINFORD, SUPRA, 388.  THE LEGISLATURE, BEING FREE TO EXERCISE ITS
OWN JUDGMENT, IS NOT BOUND BY THAT OF OTHER LEGISLATURES.  IT WOULD
HARDLY BE CONTENDED THAT IF ALL THE STATES HAD ADOPTED A SINGLE
STANDARD NONE, IN THE LIGHT OF ITS OWN EXPERIENCE AND IN THE EXERCISE
OF ITS JUDGMENT UPON ALL THE COMPLEX ELEMENTS WHICH ENTER INTO THE
PROBLEM, COULD CHANGE IT.    ONLY A WORD NEED BE SAID AS TO THE WIDTH
LIMITATION.  WHILE A LARGE PART OF THE HIGHWAYS IN QUESTION ARE FROM 18
TO 20 FEET IN WIDTH, APPROXIMATELY 100 MILES ARE ONLY 16 FEET WIDE.  ON
ALL THE USE OF A 96 INCH TRUCK LEAVES BUT A NARROW MARGIN FOR PASSING. 
ON THE ROAD 16 FEET WIDE IT LEAVES NONE.  THE 90 INCH LIMITATION HAS
BEEN IN FORCE IN SOUTH CAROLINA SINCE 1920 AND THE CONCRETE HIGHWAYS
WHICH IT HAS BUILT APPEAR TO BE ADAPTED TO VEHICLES OF THAT WIDTH.  THE
RECORD SHOWS WITHOUT CONTRADICTION THAT THE USE OF HEAVY LOADED TRUCKS
ON THE HIGHWAYS TENDS TO FORCE OTHER TRAFFIC OFF THE CONCRETE SURFACE
ONTO THE SHOULDERS OF THE ROAD ADJOINING ITS EDGES AND TO INCREASE
REPAIR COSTS MATERIALLY.  IT APPEARS ALSO THAT AS THE WIDTH OF TRUCKS
IS INCREASED IT OBSTRUCTS THE VIEW OF THE HIGHWAY, CAUSING MUCH
INCONVENIENCE AND INCREASED HAZARD IN ITS USE.  IT PLAINLY CANNOT BE
SAID THAT THE WIDTH OF TRUCKS USED ON THE HIGHWAYS IN SOUTH CAROLINA IS
UNRELATED TO THEIR SAFETY AND COST OF MAINTENANCE, OR THAT A 90 INCH
WIDTH LIMITATION ADOPTED TO SAFEGUARD THE HIGHWAYS OF THE STATE, IS NOT
WITHIN THE RANGE OF THE PERMISSIBLE LEGISLATIVE CHOICE. 

THE REGULATORY MEASURES TAKEN BY SOUTH CAROLINA ARE WITHIN ITS
LEGISLATIVE POWER.  THEY DO NOT INFRINGE THE FOURTEENTH AMENDMENT, AND
THE RESULTING BURDEN ON INTERSTATE COMMERCE IS NOT FORBIDDEN. 
REVERSED. 

FN1  "SEC.  4.  WEIGHT.  - NO PERSON SHALL OPERATE ON ANY HIGHWAY ANY
MOTOR TRUCK OR SEMI-TRAILER TRUCK WHOSE GROSS WEIGHT, INCLUDING LOAD,
SHALL EXCEED 20,000 POUNDS. 

"SEC. 6.  WIDTH.  - NO PERSON SHALL OPERATE ON ANY HIGHWAY ANY MOTOR
TRUCK OR SEMI-TRAILER MOTOR TRUCK WHOSE TOTAL OUTSIDE WIDTH, INCLUDING
ANY PART OF BODY OR LOAD, SHALL EXCEED 90 INCHES." 

FN2  STATE REGULATIONS AFFECTING INTERSTATE COMMERCE, WHOSE PURPOSE
OR EFFECT IS TO GAIN FOR THOSE WITHIN THE STATE AN ADVANTAGE AT THE
EXPENSE OF THOSE WITHOUT, OR TO BURDEN THOSE OUT OF THE STATE WITHOUT
ANY CORRESPONDING ADVANTAGE TO THOSE WITHIN, HAVE BEEN THOUGHT TO
IMPINGE UPON THE CONSTITUTIONAL PROHIBITION EVEN THOUGH CONGRESS HAS
NOT ACTED.  HALL V. DECUIR, 95 U.S. 485, 497-498; WABASH, ST. L. & P.R.
CO. V. ILLINOIS, 118 U.S. 557, 575-578; BOWMAN V. CHICAGO & N.W.R. CO.,
125 U.S. 465, 498; WESTERN UNION TELEGRAPH CO. V. JAMES, 162 U.S. 650,
659, WITH WHICH COMPARE WESTERN UNION TELEGRAPH CO. V. PENDLETON, 122
U.S. 347, 358; FOSTER-FOUNTAIN PACKING CO. V. HAYDEL, 278 U.S. 1, WITH
WHICH COMPARE GEER V. CONNECTICUT, 161 U.S. 519, AND NEW YORK EX REL.
SILZ V. HESTERBERG, 211 U.S. 31; BALDWIN V. SEELIG, 294 U.S. 511, 524;
SEE WESTERN UNION TELEGRAPH CO. V. KANSAS, 216 U.S. 1, 27 ET SEQ. 

UNDERLYING THE STATED RULE HAS BEEN THE THOUGHT, OFTEN EXPRESSED IN
JUDICIAL OPINION, THAT WHEN THE REGULATION IS OF SUCH A CHARACTER THAT
ITS BURDEN FALLS PRINCIPALLY UPON THOSE WITHOUT THE STATE, LEGISLATIVE
ACTION IS NOT LIKELY TO BE SUBJECTED TO THOSE POLITICAL RESTRAINTS
WHICH ARE NORMALLY EXERTED ON LEGISLATION WHERE IT AFFECTS ADVERSELY
SOME INTERESTS WITHIN THE STATE.  SEE COOLEY V. BOARD OF PORT WARDENS,
12 HOW.  299, 315; GILMAN V. PHILADELPHIA, 3 WALL.  713, 731; ESCANABA
CO. V. CHICAGO, 107 U.S. 678, 683; LAKE SHORE & M.S.R. CO. V. OHIO EX
REL. LAWRENCE, 173 U.S. 285, 194; CF. POUND V. TURCK, 95 U.S. 459, 464;
GLOUCESTER FERRY CO. V. PENNSYLVANIA, 114 U.S. 196, 205; ROBBINS V.
SHELBY COUNTY TAXING DISTRICT, 120 U.S. 489, 499. 

FN3  FOOTNOTE 2, SUPRA. 

FN4  SEE ILLINOIS CENTRAL R. CO. V. ILLINOIS, 163 U.S. 142;
CLEVELAND, C.C. & ST. L.R. CO. V. ILLINOIS, 177 U.S. 514; MISSISSIPPI
RAILROAD COMM'N V. ILLINOIS CENTRAL R. CO., 203 U.S. 335; ATLANTIC
COAST LINE R. CO. V. WHARTON, 207 U.S. 328; HERNDON V. CHICAGO, R.I. &
P.R. CO., 218 U.S. 135; CHICAGO, B. & Q.R. CO. V. RAILROAD COMMISSION,
237 U.S. 220; ST. LOUIS & SAN FRANCISCO R. CO. V. PUBLIC SERVICE
COMM'N, 254 U.S. 535.  CF. GLADSON V. MINNESOTA, 166 U.S. 427; LAKE
SHORE & M.S.R. CO. V. OHIO EX REL. LAWRENCE, 173 U.S. 285; GULF, C. &
S.F.R. CO. V. TEXAS, 246 U.S. 58, WHERE STATUTES REQUIRING LOCAL
SERVICE NO GREATER THAN NECESSARY FOR FAIR ACCOMMODATION OF LOCAL NEEDS
WERE HELD CONSTITUTIONAL.  ALTHOUGH THE STATES HAVE USUALLY BEEN
ALLOWED TO IMPOSE BURDENS ON INTERSTATE RAILROADS IN THE INTEREST OF
LOCAL SAFETY, SMITH V. ALABAMA, 124 U.S. 465; NASHVILLE, C. & ST. L.R.
CO. V. ALABAMA, 128 U.S. 96; NEW YORK, N.H. & H.R. CO. V. NEW YORK, 165
U.S. 628; CHICAGO, R.I. & P.R. CO. V. ARKANSAS, 219 U.S. 453; ST.
LOUIS, I.M. & S.R. CO. V. ARKANSAS, 240 U.S. 518; CF. HENNINGTON V.
GEORGIA, 163 U.S. 299, AN UNNECESSARILY HARSH RESTRICTION, EVEN THOUGH
IT IS IN THE INTEREST OF SAFETY, HAS BEEN HELD TO BE UNCONSTITUTIONAL. 
SEABOARD AIR LINE RY. V. BLACKWELL, 244 U.S. 310. 

FN5  AMONG THE STATE REGULATIONS MATERIALLY AFFECTING INTERSTATE
COMMERCE WHICH THIS COURT HAS UPHELD, CONGRESS NOT ACTING, ARE THOSE
WHICH SANCTION OBSTRUCTIONS IN NAVIGABLE RIVERS, WILLSON V. BLACK-BIRD
CREEK MARSH CO., 2 PET. 245; EX PARTE MCNIEL, 13 WALL.  236; POUND V.
TURCK, 95 U.S. 459; WILSON V. MCNAMEE, 102 U.S. 572; HUSE V. GLOVER,
119 U.S. 543; CF. SANDS V. MANISTEE RIVER IMPROVEMENT CO., 123 U.S.
288; APPROVE THE ERECTION OF BRIDGES OVER NAVIGABLE STREAMS, GILMAN V.
PHILADELPHIA, 3 WALL.  713; ESCANABA CO. V. CHICAGO, 107 U.S. 678;
CARDWELL V. AMERICAN RIVER BRIDGE CO., 113 U.S. 205; WILLAMETTE IRON
BRIDGE CO. V. HATCH, 125 U.S. 1; LAKE SHORE & M.S.R. CO. V. OHIO, 165
U.S. 365; REQUIRE PAYMENT OF FEES AS AN INCIDENT TO USE OF HARBORS,
COOLEY V. BOARD OF PORT WARDENS, 12 HOW.  299; STEAMSHIP CO. V.
JOLIFFE, 2 WALL.  450; ANDERSON V. PACIFIC COAST S.S. CO., 225 U.S.
187; CLYDE MALLORY LINES V. ALABAMA EX REL. STATE DOCKS COMM'N, 296
U.S. 261; CF. MOBILE COUNTY V. KIMBALL, 102 U.S. 691; CONTROL THE
LOCATION OF DOCKS, CUMMINGS V. CHICAGO, 188 U.S. 410; IMPOSE WHARFAGE
CHARGES, PACKET CO. V. KEOKUK, 95 U.S. 80; PACKET CO. V. CATLETTSBURG,
105 U.S. 559; TRANSPORTATION CO. V. PARKERSBURG, 107 U.S. 691; OUACHITA
PACKET CO. V. AIKEN, 121 U.S. 444; ESTABLISH INSPECTION AND QUARANTINE
LAWS, TURNER V. MARYLAND, 107 U.S. 38; MORGAN'S S.S. CO. V. LOUISIANA
BOARD OF HEALTH, 118 U.S. 455; PATAPSCO GUANO CO. V. NORTH CAROLINA
BOARD OF AGRICULTURE, 171 U.S. 345; RASMUSSEN V. IDAHO, 181 U.S. 198;
SMITH V. ST. LOUIS & S.W.R. CO., 181 U.S. 248; REID V. COLORADO, 187
U.S. 137; NEW MEXICO EX REL. MCLEAN & CO. V. DENVER & R.G.R. CO., 203
U.S. 38; ASBELL V. KANSAS, 209 U.S. 251; RED "C" OIL MFG. CO. V. BOARD
OF AGRICULTURE, 222 U.S. 380; SAVAGE V. JONES, 225 U.S. 501; PURE OIL
CO. V. MINNESOTA, 248 U.S. 158; MINTZ V. BALDWIN, 289 U.S. 346; CF.
RAILROAD CO. V. HUSEN, 95 U.S. 465; MINNESOTA V. BARBER, 136 U.S. 313;
BRIMMER V. REBMAN, 138 U.S. 78; AND REGULATE THE TAKING OR EXPORTATION
OF DOMESTIC GAME, GEER V. CONNECTICUT, 161 U.S. 519; NEW YORK EX REL.
SILZ V. HESTERBERG, 211 U.S. 31; CF. FOSTER-FOUNTAIN PACKING CO. V.
HAYDEL, 278 U.S. 1, 13, HOLDING INVALID A LOCAL REGULATION OSTENSIBLY
DESIGNED TO CONSERVE A NATURAL RESOURCE BUT WHOSE PURPOSE AND EFFECT
WERE TO BENEFIT LOUISIANA ENTERPRISE AT THE EXPENSE OF BUSINESSES
OUTSIDE THE STATE. 

MR. JUSTICE CARDOZO AND MR. JUSTICE REED TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :














MATY V. GRASSELLI CO., 303 U.S. 197 


NO. 378.  ARGUED FEBRUARY 3, 1938.  - DECIDED FEBRUARY 14, 1938.  - 89
F.(2D) 456, REVERSED. 


IN AN ACTION FOR PERSONAL INJURIES, THE PLAINTIFF ALLEGED HIS
EMPLOYMENT AS A WORKER IN A SPECIFIED DEPARTMENT OF DEFENDANT'S PLANT
AND THAT WHILE SO EMPLOYED HE SUFFERED THE INJURIES THROUGH INHALING
GASES ETC. ATTRIBUTABLE TO DEFENDANT'S NEGLIGENCE.  AN AMENDMENT OF THE
COMPLAINT BROADENED THE DESCRIPTION OF THE PLACE OF EMPLOYMENT WHERE
THE INJURIES WERE SUSTAINED SO AS TO INCLUDE ANOTHER DEPARTMENT LOCATED
IN ANOTHER BUILDING OF THE SAME PLANT.  HELD THAT THE AMENDMENT DID NOT
INTRODUCE A NEW CAUSE OF ACTION WITHIN THE MEANING OF THE NEW JERSEY
STATUTE OF LIMITATIONS.  P. 199. 

MATY, ADMINISTRATRIX, V. GRASSELLI CHEMICAL CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 302 U.S. 663, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE DEFENDANT, THE PRESENT RESPONDENT, IN AN ACTION FOR PERSONAL
INJURIES BEGUN IN A NEW JERSEY STATE COURT AND REMOVED TO THE FEDERAL
DISTRICT COURT.  UPON THE DEATH OF THE PLAINTIFF, THE PRESENT
PETITIONER WAS SUBSTITUTED, AS ADMINISTRATRIX, BY THE COURT BELOW. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONER (PLAINTIFF) FILED A COMPLAINT ALLEGING THAT HE WAS INJURED
WHILE EMPLOYED IN THE SILICATE DEPARTMENT OF RESPONDENT'S (DEFENDANT'S)
CHEMICAL PLANT.  LATER, AND MORE THAN TWO YEARS AFTER THE DATE OF HIS
INJURIES, HE AMENDED HIS COMPLAINT.  THE ONLY EFFECT OF THE AMENDMENT
WAS TO BROADEN THE DESCRIPTION OF THE PLACE OF EMPLOYMENT WHERE THE
INJURIES WERE SUSTAINED SO AS TO INCLUDE THE PHOSPHATE DEPARTMENT
LOCATED IN THE SAME PLANT BUT IN A DIFFERENT BUILDING 500 FEET REMOVED
FROM THE SILICATE DEPARTMENT. 

THE SOLE QUESTION IS:  DID THE NEW JERSEY STATUTE OF LIMITATIONS OF
TWO YEARS BAR THE AMENDMENT BECAUSE IT SET OUT A NEW CAUSE OF ACTION? 

THE CAUSE, ORIGINALLY BROUGHT IN THE NEW JERSEY STATE COURT, WAS
REMOVED, BECAUSE OF DIVERSITY OF CITIZENSHIP, TO THE DISTRICT COURT FOR
NEW JERSEY, WHERE A VERDICT FOR PLAINTIFF WAS SET ASIDE AND JUDGMENT
ENTERED FOR DEFENDANT.  THE COURT OF APPEALS AFFIRMED, HOLDING THAT THE
AMENDMENT TO THE COMPLAINT SET OUT A NEW CAUSE OF ACTION AND WAS BARRED
BY THE NEW JERSEY STATUTE OF LIMITATIONS.  FN1 

THE PERTINENT PART OF THE NEW JERSEY STATUTE OF LIMITATIONS READS:
FN2 

"...  ALL ACTIONS HEREAFTER ACCRUING FOR INJURIES TO PERSONS CAUSED
BY THE WRONGFUL ACT, NEGLECT OR DEFAULT OF ANY  ...  CORPORATION OR
CORPORATIONS WITHIN THIS STATE, SHALL BE COMMENCED AND INSTITUTED
WITHIN TWO YEARS NEXT AFTER THE CAUSE OF SUCH ACTION SHALL HAVE ACCRUED
AND NOT AFTER." 

THE ORIGINAL COMPLAINT ALLEGED: 

"1.  THE PLAINTIFF WAS IN THE EMPLOY OF THE DEFENDANT IN THE MONTH OF
NOVEMBER, 1933, AND FOR SOME TIME PRIOR THERETO AT DEFENDANT'S PLANT IN
GRASSELLI, COUNTY OF UNION AND STATE OF NEW JERSEY. 

"2.  THE PLAINTIFF WAS EMPLOYED BY THE DEFENDANT AS FURNACE MAN,
OPERATOR AND GENERAL WORKER IN THE SILICATE DEPARTMENT OF DEFENDANT'S
PLANT." 

THE COMPLAINT FURTHER ALLEGED THAT PLAINTIFF WAS INJURED WHILE SO
EMPLOYED BY INHALING GASES OR INJURIOUS SUBSTANCES PROXIMATELY CAUSED
BY RESPONDENT'S FAILURE TO PROTECT PLAINTIFF FROM UNNECESSARY DANGERS
AND TO PROVIDE PLAINTIFF A REASONABLY SAFE PLACE IN WHICH TO WORK. 

THE AMENDMENT - ADDED MORE THAN TWO YEARS AFTER THE INJURIES WERE
SUSTAINED - CAUSED PARAGRAPH 2 OF THE COMPLAINT TO READ AS FOLLOWS: 

"2.  THE PLAINTIFF WAS EMPLOYED BY THE DEFENDANT AS FURNACE MAN,
OPERATOR AND GENERAL WORKER IN THE SILICATE DEPARTMENT OF DEFENDANT'S
PLANT AND WAS ALSO EMPLOYED IN OTHER DEPARTMENTS OF THE DEFENDANT'S
PLANT WHERE HE PERFORMED HIS DUTIES AS HE WAS DIRECTED TO DO DURING HIS
EMPLOYMENT IN THE PHOSPHATE DEPARTMENT AND DORR DEPARTMENT." 

THIS AMENDMENT DID NOT CHANGE PLAINTIFF'S CAUSE OF ACTION.  THE
ORIGINAL ACTION WAS BROUGHT FOR INJURIES SUSTAINED BY INHALING HARMFUL
SUBSTANCES WHILE THE PLAINTIFF WAS IN THE DEFENDANT'S EMPLOY PREVIOUS
TO AND INCLUDING NOVEMBER 1933.  THE ESSENTIALS OF THIS CAUSE OF ACTION
WERE EMPLOYMENT; INJURY BY OR FROM HARMFUL GASES OR SUBSTANCES WHILE
ENGAGED IN THE EMPLOYMENT; AND PROOF THAT THE INJURIES RESULTED FROM
THE NEGLIGENT FAILURE OF DEFENDANT TO PROTECT PLAINTIFF FROM
UNNECESSARY DANGERS AND TO PROVIDE PLAINTIFF WITH A REASONABLY SAFE
PLACE IN WHICH TO WORK.  THE RESPONSIBILITY OF RESPONDENT WAS THE SAME
WHETHER THE HARMFUL GASES OR SUBSTANCES WERE INHALED IN THE SILICATE
DEPARTMENT, THE PHOSPHATE DEPARTMENT, THE DORR DEPARTMENT OR ANY OTHER
DEPARTMENT WHERE PLAINTIFF WAS PERFORMING HIS DUTIES UNDER HIS
EMPLOYMENT.  IT IS NOT REASONABLY POSSIBLE TO SAY THAT PETITIONER'S
RIGHT OF RECOVERY UNDER THE ORIGINAL COMPLAINT AND UNDER THE AMENDED
COMPLAINT WERE TWO SEPARATE AND DISTINCT CAUSES OF ACTION.  PETITIONER
CAN HAVE ONLY ONE RECOVERY FOR THE ONE SINGLE INJURY ALLEGED AS A
RESULT OF A BREACH OF ONE CONTINUING DUTY UNDER ONE CONTINUOUS
EMPLOYMENT. 

THE NEW JERSEY COURT OF ERRORS AND APPEALS VERY CLEARLY DECLARED THAT
STATE'S RULE APPLYING TO THE OPERATION OF ITS STATUTE OF LIMITATIONS,
IN 1935, AS FOLLOWS: 

"...  AMENDMENTS IN CAUSES WHERE THE STATUTE OF LIMITATIONS HAS RUN,
...  'WILL NOT, AS A RULE, BE HELD TO STATE A NEW CAUSE OF ACTION IF
THE FACTS ALLEGED SHOW, SUBSTANTIALLY, THE SAME WRONG WITH RESPECT TO
THE SAME TRANSACTION, OR IF IT IS THE SAME MATTER MORE FULLY AND
DIFFERENTLY LAID, OR IF THE GIST OF THE ACTION, OR THE SUBJECT OF THE
CONTROVERSY REMAINS THE SAME; AND THIS IS TRUE ALTHOUGH  ...  THE
ALLEGED INCIDENTS OF THE TRANSACTION, MAY BE DIFFERENT.  TECHNICAL
RULES WILL NOT BE APPLIED IN DETERMINING WHETHER THE CAUSE OF ACTION
STATED IN THE ORIGINAL AND AMENDED PLEADINGS ARE IDENTICAL, SINCE, IN
THE STRICT SENSE, ALMOST ANY AMENDMENT MAY BE SAID TO CHANGE THE
ORIGINAL CAUSE OF ACTION.'"  FN3 

UNDER THIS RULE LAID DOWN BY THE NEW JERSEY COURT, AS TO NEW JERSEY'S
STATUTE OF LIMITATIONS, THE AMENDED COMPLAINT HERE SUBSTANTIALLY
ALLEGED THE SAME WRONG AS THE ORIGINAL COMPLAINT; RELIED UPON THE
IDENTICAL MATTER MORE FULLY AND DIFFERENTLY LAID; AND THE ESSENTIAL
ELEMENTS OF THE ACTION AND THE CONTROVERSY REMAINED THE SAME BETWEEN
THE PARTIES AFTER AS BEFORE THE AMENDMENT. 

PLEADINGS ARE INTENDED TO SERVE AS A MEANS OF ARRIVING AT FAIR AND
JUST SETTLEMENTS OF CONTROVERSIES BETWEEN LITIGANTS.  THEY SHOULD NOT
RAISE BARRIERS WHICH PREVENT THE ACHIEVEMENT OF THAT END.  THE ORIGINAL
COMPLAINT IN THIS CAUSE AND THE AMENDED COMPLAINT WERE NOT BASED UPON
DIFFERENT CAUSES OF ACTION.  THEY REFERRED TO THE SAME KIND OF
EMPLOYMENT, THE SAME GENERAL PLACE OF EMPLOYMENT, THE SAME INJURY AND
THE SAME NEGLIGENCE.  PROPER PLEADING IS IMPORTANT, BUT ITS IMPORTANCE
CONSISTS IN ITS EFFECTIVENESS AS A MEANS TO ACCOMPLISH THE END OF A
JUST JUDGMENT.  THE EFFECT OF THE AMENDMENT HERE WAS TO FACILITATE A
FAIR TRIAL OF THE EXISTING ISSUES BETWEEN PLAINTIFF AND DEFENDANT.  THE
NEW JERSEY STATUTE OF LIMITATIONS DID NOT BAR THE AMENDED CAUSE OF
ACTION.  THE COURT BELOW WAS IN ERROR.  SINCE THE JUDGMENT OF THE COURT
OF APPEALS WAS BASED ONLY ON A CONSIDERATION AND IMPROPER APPLICATION
OF THE STATUTE OF LIMITATIONS, THE CAUSE IS REVERSED AND REMANDED TO
THE COURT OF APPEALS FOR FURTHER PROCEEDINGS IN HARMONY WITH THESE
VIEWS.  REVERSED. 

FN1  89 F.(2D) 456.  WHILE THE CAUSE WAS PENDING IN THE COURT OF
APPEALS, THE PLAINTIFF DIED AND HIS WIFE, THE PRESENT PLAINTIFF, WAS
SUBSTITUTED AS ADMINISTRATRIX.  BOTH ARE REFERRED TO AS PETITIONER
(PLAINTIFF). 

FN2  3 N.J. COMP. ST. 1910, P. 3164, SEC. 3; P.L. 1896, P. 119. 

FN3  MAGLIARO V. MODERN HOMES, INC., 115 N.J.L. 151, 156-157; 178 A.
733, 736; O'SHAUGHNESSY V. BAYONNE NEWS CO., 154 A. 13; 9 N.J. MISC.
345, 347; AND SEE, NEW YORK CENTRAL & H.R.R. CO. V. KINNEY, 260 U.S.
340; AND UNITED STATES V. MEMPHIS COTTON OIL CO., 288 U.S. 62. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :









KAY V. UNITED STATES, 303 U.S. 1 


NO. 61.  ARGUED DECEMBER 10, 13, 1937.  - DECIDED JANUARY 31, 1938.  -
89 F.(2D) 19, JUDGMENT VACATED. 


1.  THE COURT DECLINES TO CONSIDER A POINT MADE BY THE GOVERNMENT, NOT
RAISED BELOW AND NOT ADEQUATELY BASED IN THE RECORD, TO THE EFFECT THAT
A DEFENDANT WHOSE PLEA OF GUILTY WAS WITHDRAWN ON MOTION MADE AFTER THE
TEN DAYS SET BY RULE II (4) OF THE CRIMINAL APPEALS RULES AND WHO WAS
TRIED AND CONVICTED, IS PRECLUDED FROM ATTACKING THE INDICTMENT AND THE
STATUTE ON WHICH IT WAS FOUNDED.  P. 4. 

2.  THE SECOND MORTGAGEE OF PROPERTY ON WHICH A LOAN IS BEING SOUGHT
OF THE HOME OWNERS' LOAN CORPORATION, WHO, IN A CONSENT TO ACCEPT BONDS
OF THE CORPORATION IN FULL SETTLEMENT OF HIS DEBT, KNOWINGLY AND
FALSELY, FOR THE PURPOSE OF INFLUENCING THE ACTION OF THE CORPORATION,
OVERSTATES THE AMOUNT OF HIS CLAIM, IS GUILTY OF A VIOLATION OF SEC.
8(A) OF THE HOME OWNERS' LOAN ACT.  P. 5. 

3.  EVEN IF THE OTHER PARTS OF THE ACT WERE UNCONSTITUTIONAL, SEC.
8(A), AIDED BY THE SEPARABILITY CLAUSE, IS VALID AS A PROTECTION OF THE
GOVERNMENT AGAINST FALSE AND MISLEADING REPRESENTATIONS WHILE THE ACT
IS BEING ADMINISTERED.  P. 6. 

WHEN ONE UNDERTAKES TO CHEAT THE GOVERNMENT OR TO MISLEAD THOSE
ACTING UNDER ITS AUTHORITY, BY FALSE STATEMENTS, HE HAS NO STANDING TO
ASSERT THAT THE OPERATIONS OF THE GOVERNMENT IN WHICH THE EFFORT TO
CHEAT OR MISLEAD IS MADE ARE WITHOUT CONSTITUTIONAL SANCTION. 

4.  SEC. 8(A) OF THE HOME OWNERS' LOAN ACT DEFINES THE CRIME
SUFFICIENTLY TO COMPLY WITH DUE PROCESS.  P. 7. 

5.  SEC. 8(E) OF THE HOME OWNERS' LOAN ACT, ORIGINALLY AND AS AMENDED
IN 1934, FORBIDS AND PENALIZES THE CHARGING OF APPLICANTS FOR LOANS
FROM THE HOME OWNERS' LOAN CORPORATION FOR SERVICES RENDERED "FOR
EXAMINATION AND PERFECTION OF TITLE, APPRAISAL, AND LIKE NECESSARY
SERVICES," EXCEPT THE "ORDINARY CHARGES" OR FEES AUTHORIZED AND
REQUIRED BY THE CORPORATION.  HELD VALID. 

(1)  SEC. 8(E) IS SEPARABLE FROM THE OTHER PROVISIONS OF THE
STATUTE.  P. 8. 

(2)  WITHOUT REGARD TO THE VALIDITY OF THE SCHEME OF THE ACT,
CONGRESS WAS AUTHORIZED TO PROTECT FROM EXPLOITATION THROUGH IMPROPER
OR EXCESSIVE CHARGES THOSE WHO SOUGHT LOANS UNDER IT.  ID. 

(3)  TAKEN IN CONNECTION WITH A RESOLUTION OF THE CORPORATION
DEFINING THE ORDINARY CHARGES THAT ARE "AUTHORIZED OR REQUIRED," AND
PROVIDING FOR "ANY OTHER NECESSARY CHARGE FOR LIKE NECESSARY SERVICES,
AS SPECIFICALLY APPROVED BY THE BOARD OF DIRECTORS," THE SECTION IS
SUFFICIENTLY DEFINITE TO SATISFY DUE PROCESS.  P. 8. 

(4)  THE PHRASE "LIKE NECESSARY SERVICES" MEANS SERVICES COGNATE TO
THOSE MENTIONED IN THE PRECEDING CLAUSE, "FOR EXAMINATION AND
PERFECTION OF TITLE" AND "APPRAISAL."  P. 9. 

(5)  CONGRESS DID NOT EXCEED ITS POWER IN DELEGATING TO THE
CORPORATION THE AUTHORITY TO MAKE SUCH REGULATIONS.  ID. 

6.  UNDER THE CRIMINAL APPEALS RULES, THE CIRCUIT COURT OF APPEALS
HAS POWER, IN THE EXERCISE OF SOUND DISCRETION, TO APPROVE A SETTLEMENT
AND FILING OF A BILL OF EXCEPTIONS WHICH WERE TOO LATE IN THE DISTRICT
COURT, AND TO PASS UPON THE RULINGS THERE DISCLOSED.  P. 9. 

KAY V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 301 U.S. 679, TO REVIEW A JUDGMENT SUSTAINING CONVICTIONS
AND CONCURRENT SENTENCES ON VARIOUS COUNTS CHARGING VIOLATION OF THE
HOME OWNERS' LOAN ACT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PETITIONER WAS CONVICTED OF VIOLATIONS OF SEC. 8(A)  FN1  AND (E)
FN2  OF THE HOME OWNERS' LOAN ACT OF 1933.  ACT OF JUNE 13, 1933, C.
64, 48 STAT. 128, 134, AMENDED BY ACT OF APRIL 27, 1934, C. 168, 48
STAT. 643, 647.  12 U.S.C., SEC. 1467(A) AND (E).  THE CIRCUIT COURT OF
APPEALS SUSTAINED THE CONVICTION, 89 F.(2D) 19, AND BECAUSE OF THE
IMPORTANCE OF THE QUESTIONS PRESENTED CERTIORARI WAS GRANTED.  301 U.S.
679. 

THE CONVICTION WAS UPON EIGHT COUNTS OF THE INDICTMENT, VIZ., COUNTS
5 AND 15 UNDER SEC. 8(A) AND COUNTS 8, 12, 14, 20, 24 AND 25 UNDER SEC.
8(E).  TO COUNT 12 PETITIONER HAD PLEADED GUILTY BUT LATER WAS
PERMITTED TO WITHDRAW THAT PLEA, PLEADED NOT GUILTY, AND WENT TO
TRIAL.  ON COUNT 8, IMPOSITION OF SENTENCE WAS SUSPENDED AND PETITIONER
WAS PLACED UPON PROBATION.  ON THE REMAINING SEVEN COUNTS, PETITIONER
WAS SENTENCED TO A YEAR AND A DAY IN PRISON, THE SENTENCES TO RUN
CONCURRENTLY. 

THE CIRCUIT COURT OF APPEALS REFUSED TO CONSIDER ERRORS ARISING ON
THE BILL OF EXCEPTIONS, AS IT HAD NOT BEEN SETTLED AND FILED WITHIN THE
TIME PERMITTED BY RULE IX OF THE CRIMINAL APPEALS RULES.  THE COURT
ACCORDINGLY LIMITED ITS CONSIDERATION TO THE SUFFICIENCY OF THE
INDICTMENT, ENTERTAINING AND DECIDING THE QUESTIONS OF THE
CONSTITUTIONAL VALIDITY OF THE HOME OWNERS' LOAN ACT AND OF THE
PROVISIONS OF SEC. 8(A) AND (E) IN PARTICULAR. 

THE GOVERNMENT CONTENDS THAT THE CONVICTIONS SHOULD BE SUSTAINED,
IRRESPECTIVE OF QUESTIONS OF THE VALIDITY OF ANY PART OF THE STATUTE,
UPON THE GROUND THAT, THE SENTENCES BEING CONCURRENT, THE JUDGMENT
SHOULD BE AFFIRMED IF GOOD UNDER ANY ONE OF THE COUNTS.  IN THAT VIEW,
THE GOVERNMENT SUBMITS THAT PETITIONER CONSENTED TO THE JUDGMENT ON
COUNT 12.  THE POINT IS THAT PETITIONER WAS PERMITTED TO WITHDRAW HER
PLEA OF GUILTY TO THAT COUNT ALTHOUGH ELEVEN DAYS HAD INTERVENED, WHILE
RULE II (4) OF THE CRIMINAL APPEALS RULES REQUIRES SUCH A MOTION TO BE
MADE WITHIN TEN DAYS.  THE GOVERNMENT ARGUES THAT THE PROVISION OF THE
RULE IS MANDATORY AND HENCE THE JUDGMENT, AS ONE UPON CONSENT, SHOULD
BE AFFIRMED WITHOUT CONSIDERATION OF THE MERITS.  PETITIONER ANSWERS
THAT THE GOVERNMENT BY GOING TO TRIAL IS NOW ESTOPPED TO RAISE THE
QUESTION AND FURTHER THAT A PLEA OF GUILTY DOES NOT PREVENT THE
DEFENDANT FROM CHALLENGING THE SUFFICIENCY OF THE INDICTMENT.  (2
BISHOP ON CRIMINAL PROCEDURE, 2D ED., SEC. 795.)  THE POINT DOES NOT
APPEAR TO HAVE BEEN RAISED EITHER IN THE DISTRICT COURT OR IN THE COURT
OF APPEALS AND IT IS BASED SOLELY UPON THE DATES OF CERTAIN ENTRIES IN
THE CRIMINAL DOCKET WITHOUT ANY SUPPORTING PROOF.  WE ARE NOT DISPOSED
TO DEAL WITH A QUESTION OF THAT IMPORTANCE PRESENTED IN THIS MANNER. 

FIRST. - AS TO THE COUNTS UNDER SEC. 8(A).  FN3  - COUNTS 5 AND 15,
UNDER THAT PROVISION, CHARGE THAT PETITIONER, BEING THE HOLDER OF A
SECOND MORTGAGE UPON CERTAIN PREMISES, IN EXECUTING THE CONSENT TO
ACCEPT BONDS OF THE HOME OWNERS' LOAN CORPORATION IN FULL SETTLEMENT,
AND FOR THE PURPOSE OF INFLUENCING THE ACTION OF THE CORPORATION,
KNOWINGLY AND FALSELY STATED THAT HER CLAIMS WERE RESPECTIVELY IN THE
SUMS OF $590 AND $650, WHEREAS IN FACT THEY WERE RESPECTIVELY ONLY IN
THE SUMS OF $285 AND $150. 

PETITIONER ARGUES THAT THERE IS NO ALLEGATION THAT A LOAN TO THE
OWNER WAS MADE OR APPROVED, OR THAT ANY PAYMENT WAS MADE TO PETITIONER;
THAT THE SECOND MORTGAGEE'S CONSENT IS TEMPORARY AND MAY BE WITHDRAWN;
THAT IT IS NOT UNDER OATH AND THAT THERE IS NO WARRANTY OF THE TRUTH OF
THE INFORMATION GIVEN.  PETITIONER ARGUES FURTHER THAT ANY STATEMENT IN
THE CONSENT OF A SECOND MORTGAGEE AS TO THE BALANCE DUE CANNOT ENDANGER
OR DIRECTLY INFLUENCE ANY LOAN MADE BY THE CORPORATION; THAT THE SECOND
MORTGAGEE IS NOT AN APPLICANT AND THAT THE PRACTICE IN SUCH CASES
NEGATIVES RELIANCE ON THE CONSENT, AS THE ESSENTIAL FACTORS ARE THE
VALUE OF THE PROPERTY, AS TO WHICH THE CORPORATION MAKES ITS APPRAISAL,
AND THE EARNING CAPACITY OF THE OWNER.  NONE OF THESE ARGUMENTS IS
IMPRESSIVE.  IT DOES NOT LIE WITH ONE KNOWINGLY MAKING FALSE STATEMENTS
WITH INTENT TO MISLEAD THE OFFICIALS OF THE CORPORATION TO SAY THAT THE
STATEMENTS WERE NOT INFLUENTIAL OR THE INFORMATION NOT IMPORTANT. 
THERE CAN BE NO QUESTION THAT CONGRESS WAS ENTITLED TO REQUIRE THAT THE
INFORMATION BE GIVEN IN GOOD FAITH AND NOT FALSELY WITH INTENT TO
MISLEAD.  WHETHER OR NOT THE CORPORATION WOULD ACT FAVORABLY ON THE
LOAN IS NOT A MATTER WHICH CONCERNS ONE SEEKING TO DECEIVE BY FALSE
INFORMATION.  THE CASE IS NOT ONE OF AN ACTION FOR DAMAGES BUT OF
CRIMINAL LIABILITY AND ACTUAL DAMAGE IS NOT AN INGREDIENT OF THE
OFFENSE. 

PETITIONER'S MAIN ARGUMENT IS THAT THE WHOLE SCHEME OF THE STATUTE IS
INVALID; THAT CONGRESS HAD NO CONSTITUTIONAL AUTHORITY TO CREATE THE
HOME OWNERS' LOAN CORPORATION,  - TO PROVIDE FOR THE CONDUCT OF A
BUSINESS ENTERPRISE OF THAT CHARACTER.  THERE IS NO OCCASION TO
CONSIDER THIS BROAD QUESTION AS PETITIONER IS NOT ENTITLED TO RAISE IT.
WHEN ONE UNDERTAKES TO CHEAT THE GOVERNMENT OR TO MISLEAD ITS
OFFICERS, OR THOSE ACTING UNDER ITS AUTHORITY, BY FALSE STATEMENTS, HE
HAS NO STANDING TO ASSERT THAT THE OPERATIONS OF THE GOVERNMENT IN
WHICH THE EFFORT TO CHEAT OR MISLEAD IS MADE ARE WITHOUT CONSTITUTIONAL
SANCTION. 

WE RECENTLY DEALT WITH A SIMILAR CONTENTION THAT THE FALSE CLAIMS
STATUTE, CRIMINAL CODE, SEC. 35, DID NOT APPLY TO A CONSPIRACY TO CHEAT
THE UNITED STATES BY FALSE REPRESENTATIONS IN CONNECTION WITH
OPERATIONS UNDER A STATUTE WHICH THIS COURT FOUND TO BE
UNCONSTITUTIONAL.  WE SAID THAT SUCH A CONSTRUCTION WAS INADMISSIBLE. 
"IT MIGHT AS WELL BE SAID THAT ONE COULD EMBEZZLE MONEYS IN THE UNITED
STATES TREASURY WITH IMPUNITY IF IT TURNS OUT THAT THEY WERE COLLECTED
IN THE COURSE OF INVALID TRANSACTIONS....  CONGRESS WAS ENTITLED TO
PROTECT THE GOVERNMENT AGAINST THOSE WHO WOULD SWINDLE IT REGARDLESS OF
QUESTIONS OF CONSTITUTIONAL AUTHORITY AS TO THE OPERATIONS THAT THE
GOVERNMENT IS CONDUCTING.  SUCH QUESTIONS CANNOT BE RAISED BY THOSE WHO
MAKE FALSE CLAIMS AGAINST THE GOVERNMENT."  UNITED STATES V. KAPP, 302
U.S. 214, 217-218; MADDEN V. UNITED STATES, 80 F.(2D) 672.  WHILE THE
INSTANT CASE IS NOT ONE OF CONSPIRACY TO OBTAIN MONEY FROM THE UNITED
STATES, BUT ONE OF FALSE STATEMENTS DESIGNED TO MISLEAD THOSE ACTING
UNDER AUTHORITY OF THE GOVERNMENT, THE PRINCIPLE INVOLVED IS THE SAME. 
APART FROM ANY QUESTION OF THE VALIDITY OF THE OTHER PROVISIONS OF THE
HOME OWNERS' LOAN ACT, CONGRESS WAS ENTITLED TO SECURE PROTECTION
AGAINST FALSE AND MISLEADING REPRESENTATIONS WHILE THE ACT WAS BEING
ADMINISTERED, AND THE SEPARABILITY PROVISION OF THE ACT (SEC. 9) IS
CLEARLY APPLICABLE.  UTAH POWER CO. V. PFOST, 286 U.S. 165, 184. 

THERE IS THE FURTHER ARGUMENT THAT THE PROVISION OF SEC. 8(A),
SEPARATELY CONSIDERED, OFFENDS THE DUE PROCESS CLAUSE AS BEING VAGUE
AND UNCERTAIN.  WE FIND NO MERIT IN THAT CONTENTION.  THE STATUTE
DEFINING THE CRIME IS SUFFICIENTLY EXPLICIT. 

SECOND. - AS TO THE COUNTS UNDER SEC. 8(E).  FN4  - THE GOVERNMENT
POINTS OUT THAT COUNT 14 IS BASED ON THE STATUTE AS IT WAS ORIGINALLY
ENACTED IN 1933.  THAT COUNT CHARGES THAT PETITIONER ON OR ABOUT APRIL
1, 1934, MADE A CONTRACT WITH AN APPLICANT FOR A LOAN FOR THE PAYMENT
TO PETITIONER OF A CERTAIN SUM FOR SERVICES IN CONNECTION WITH THE LOAN
AND THAT THE CONTRACT WAS NOT FOR "AN ORDINARY CHARGE OR FEE AUTHORIZED
AND REQUIRED BY THE HOME OWNERS' LOAN CORPORATION FOR SERVICES ACTUALLY
RENDERED FOR EXAMINATION AND PERFECTION OF TITLE, APPRAISAL, AND LIKE
NECESSARY SERVICES." 

COUNTS 12, 20, 24 AND 25, UNDER THE STATUTE AS AMENDED, CHARGE THAT
PETITIONER IN OR ABOUT JUNE, JULY AND SEPTEMBER, 1934, MADE SIMILAR
CONTRACTS FOR THE PAYMENT OF UNAUTHORIZED CHARGES. 

IT APPEARS THAT THE BOARD OF DIRECTORS IN JANUARY, 1934, SPECIFICALLY
PROVIDED THAT "THE ORDINARY CHARGES AUTHORIZED AND REQUIRED" FOR
SERVICES SHOULD CONSIST OF (1) AN APPRAISAL FEE AS APPROVED BY THE
BOARD, (2) A FEE FOR A CHARACTER REPORT, (3) NECESSARY RECORDING AND
SIMILAR FEES, (4) NECESSARY CHARGES FOR PERFECTING TITLE IN A SUM NOT
EXCEEDING $75 IN ANY CASE AND LARGER NECESSARY CHARGES IF APPROVED BY
THE BOARD, (5) NECESSARY AND USUAL FEES FOR ABSTRACTS, EXAMINATION OF
TITLE, OPINIONS, CERTIFICATES OF TITLE OR TITLE INSURANCE, (6) CHARGES
OF ATTORNEYS OR TITLE COMPANIES FOR ESCROW SERVICES OR CLOSING LOANS,
AND (7) ANY OTHER NECESSARY CHARGE FOR LIKE NECESSARY SERVICES AS
SPECIFICALLY APPROVED BY THE BOARD. 

STATUTE.  IT IS PLAINLY DESIGNED TO PREVENT THE EXPLOITATION OF
APPLICANTS.  IT RESTS UPON THE SAME PRINCIPLE AS THAT WHICH UNDERLIES
SEC. 8(A) AS TO FALSE AND MISLEADING REPRESENTATIONS TO THE OFFICIALS
OF THE CORPORATION.  CONGRESS WAS ENTITLED NOT ONLY TO PREVENT
MISAPPLICATION OF THE PUBLIC FUNDS AND TO PROTECT THE OFFICIALS
CONCERNED FROM BEING MISLED, BUT ALSO TO PROTECT THOSE WHO SOUGHT LOANS
FROM BEING IMPOSED UPON BY EXTRAVAGANT OR IMPROPER CHARGES FOR SERVICES
IN CONNECTION WITH THEIR APPLICATIONS.  THIS WOULD BE IN THE INTEREST
"NOT ONLY OF THEMSELVES AND THEIR FAMILIES BUT OF THE PUBLIC."  SEE
YEISER V. DYSART, 267 U.S. 540, 541; NEBBIA V. NEW YORK, 291 U.S. 502,
535, 536.  AUTHORITY TO PENALIZE SUCH EXPLOITATION WHILE THE ENTERPRISE
IS BEING CONDUCTED CANNOT BE REGARDED AS DEPENDENT UPON THE VALIDITY OF
THE GENERAL PLAN.  THAT PLAN MIGHT OR MIGHT NOT BE ASSAILED.  IF
ASSAILED, A LONG PERIOD MIGHT ELAPSE BEFORE FINAL DECISION.  MEANWHILE,
THE GOVERNMENTAL OPERATIONS GO ON, AND PUBLIC FUNDS AND PUBLIC
TRANSACTIONS REQUIRE THE PROTECTION WHICH IT WAS THE AIM OF THESE PENAL
PROVISIONS TO SECURE, WHATEVER MIGHT BE THE ULTIMATE DETERMINATION AS
TO THE VALIDITY OF THE ENTERPRISE.  UNITED STATES V. KAPP, SUPRA. 

AS A SEPARABLE PROVISION, THE VALIDITY OF SEC. 8(E) IS CHALLENGED AS
LACKING THE REQUISITE DEFINITENESS UNDER THE DUE PROCESS CLAUSE. 
LOAN BY THE CORPORATION OR AN EXCHANGE OF BONDS OR CASH ADVANCE UNDER
THIS ACT" WHICH WERE IN THE ORIGINAL PROVISION.  BUT THE CONTEXT, IN
THE AMENDED SECTION, SUFFICIENTLY SHOWS THAT THE FORBIDDEN CHARGES ARE
THOSE IN CONNECTION WITH APPLICATIONS "FOR A LOAN, WHETHER BOND OR
CASH."  THE RESOLUTION ADOPTED BY THE BOARD OF DIRECTORS SETS FORTH THE
NATURE OF THE ORDINARY CHARGES THAT "ARE AUTHORIZED AND REQUIRED," AND
THE POWER OF CONGRESS TO PROVIDE FOR SUCH ACTION BY THE BOARD IS NOT
OPEN TO QUESTION.  SEE UNITED STATES V. GRIMAUD, 220 U.S. 506, 521;
UNITED STATES V. SHREVEPORT GRAIN CO., 287 U.S. 77, 85.  THE PHRASE
"LIKE NECESSARY SERVICES" IN THE SECTION DESCRIBES SERVICES WHICH ARE
COGNATE TO THOSE MENTIONED IN THE PRECEDING CLAUSE "FOR EXAMINATION AND
PERFECTION OF TITLE" AND "APPRAISAL."  AND THE RESOLUTION OF THE BOARD,
AFTER STATING THE CATEGORIES OF AUTHORIZED CHARGES, PROVIDES FOR "ANY
OTHER NECESSARY CHARGE FOR LIKE NECESSARY SERVICES, AS SPECIFICALLY
APPROVED BY THE BOARD OF DIRECTORS."  WE THINK THAT THE STATUTE SETS UP
AN ASCERTAINABLE STANDARD AND IS "SUFFICIENTLY EXPLICIT TO INFORM THOSE
WHO ARE SUBJECT TO IT WHAT CONDUCT ON THEIR PART WILL RENDER THEM
LIABLE TO ITS PENALTIES."  UNITED STATES EX REL. HANDLER V. HILL, 90
F.(2D) 573, 574.  COMPARE CONNALLY V. GENERAL CONSTRUCTION CO., 269
U.S. 385, 391; OLD DEARBORN CO. V. SEAGRAM-DISTILLERS CORP., 299 U.S.
183, 196. 

THIRD. - WE HAVE CONSIDERED THE OBJECTIONS TO THE INDICTMENT WHICH
WERE OPEN IN THE ABSENCE OF A BILL OF EXCEPTIONS.  THE CIRCUIT COURT OF
APPEALS RIGHTLY HELD THAT THE BILL OF EXCEPTIONS WAS NOT SETTLED AND
FILED IN TIME UNDER THE RULE.  BUT ITS DECISION WAS RENDERED BEFORE OUR
DECISION IN RAY V. UNITED STATES, 301 U.S. 158, CONSTRUING RULE IV OF
THE CRIMINAL APPEALS RULES.  SEE, ALSO, FORTE V. UNITED STATES, 302
U.S. 220.  THAT RULE GIVES TO THE CIRCUIT COURT OF APPEALS FULL
SUPERVISION AND CONTROL OF THE PROCEEDINGS ON APPEAL, "INCLUDING THE
PROCEEDINGS RELATING TO THE PREPARATION OF THE RECORD ON APPEAL."  THE
APPELLATE COURT, IN THE EXERCISE OF ITS SOUND DISCRETION, HAS AUTHORITY
TO PROVIDE FOR THE CORRECTION OF ANY MISCARRIAGE OF JUSTICE IN
CONNECTION WITH ANY ACTION OF THE TRIAL JUDGE RELATING TO THE
SETTLEMENT AND FILING OF A BILL OF EXCEPTIONS. 

AS THE CIRCUIT COURT OF APPEALS MAY HAVE PROCEEDED IN THIS CASE UPON
THE ASSUMPTION THAT IT HAD NO POWER TO APPROVE THE SETTLEMENT AND
FILING OF THE BILL OF EXCEPTIONS AND TO PASS UPON THE RULINGS IT
DISCLOSED, ITS JUDGMENT WILL BE VACATED AND THE CAUSE WILL BE REMANDED
SO THAT THE APPELLATE COURT MAY BE FREE TO EXERCISE ITS DISCRETION IN
THAT RELATION.  JUDGMENT VACATED. 

FN1  SECTION 8(A) OF THE HOME OWNERS' LOAN ACT, 12 U.S.C. 1467(A), IS
AS FOLLOWS: 

"SEC. 8.  (A) WHOEVER MAKES ANY STATEMENT, KNOWING IT TO BE FALSE, OR
WHOEVER WILLFULLY OVERVALUES ANY SECURITY, FOR THE PURPOSE OF
INFLUENCING IN ANY WAY THE ACTION OF THE HOME OWNERS' LOAN CORPORATION
OR THE BOARD OR AN ASSOCIATION UPON ANY APPLICATION, ADVANCE, DISCOUNT,
PURCHASE, OR REPURCHASE AGREEMENT, OR LOAN, UNDER THIS ACT, OR ANY
EXTENSION THEREOF BY RENEWAL DEFERMENT, OR ACTION OR OTHERWISE, OR THE
ACCEPTANCE, RELEASE, OR SUBSTITUTION OF SECURITY THEREFOR, SHALL BE
PUNISHED BY A FINE OF NOT MORE THAN $5,000 OR BY IMPRISONMENT FOR NOT
MORE THAN TWO YEARS, OR BOTH."    FN2  SECTION 8(E) OF THE ACT, 12
U.S.C. 1467(E), AS ORIGINALLY ENACTED BY THE ACT OF JUNE 13, 1933, C.
64, 48 STAT. 134, WAS AS FOLLOWS: 

"(E) NO PERSON, PARTNERSHIP, ASSOCIATION, OR CORPORATION SHALL MAKE
ANY CHARGE IN CONNECTION WITH A LOAN BY THE CORPORATION OR AN EXCHANGE
OF BONDS OR CASH ADVANCE UNDER THIS ACT EXCEPT ORDINARY CHARGES
AUTHORIZED AND REQUIRED BY THE CORPORATION FOR SERVICES ACTUALLY
RENDERED FOR EXAMINATION AND PERFECTING OF TITLE, APPRAISAL, AND LIKE
NECESSARY SERVICES.  ANY PERSON, PARTNERSHIP, ASSOCIATION, OR
CORPORATION VIOLATING THE PROVISIONS OF THIS SUBSECTION SHALL, UPON
CONVICTION THEREOF, BE FINED NOT MORE THAN $10,000, OR IMPRISONED NOT
MORE THAN FIVE YEARS, OR BOTH." 

BY THE ACT OF APRIL 27, 1934, C. 168, SEC. 12, 48 STAT. 643, 647,
SEC. 8(E) WAS AMENDED SO AS TO READ: 

"(E) NO PERSON, PARTNERSHIP, ASSOCIATION, OR CORPORATION SHALL,
DIRECTLY OR INDIRECTLY, SOLICIT, CONTRACT FOR, CHARGE OR RECEIVE, OR
ATTEMPT TO SOLICIT, CONTRACT FOR, CHARGE OR RECEIVE ANY FEE, CHARGE, OR
OTHER CONSIDERATION FROM ANY PERSON APPLYING TO THE CORPORATION FOR A
LOAN, WHETHER BOND OR CASH EXCEPT ORDINARY FEES AUTHORIZED AND REQUIRED
BY THE CORPORATION FOR SERVICES ACTUALLY RENDERED FOR EXAMINATION AND
PERFECTION OF TITLE, APPRAISAL, AND LIKE NECESSARY SERVICES.  ANY
PERSON, PARTNERSHIP, ASSOCIATION, OR CORPORATION VIOLATING THE
PROVISIONS OF THIS SUBSECTION SHALL, UPON CONVICTION THEREOF, BE FINED
NOT MORE THAN $10,000, OR IMPRISONED NOT MORE THAN FIVE YEARS OR
BOTH." 

FN3  SEE NOTE 1. 

FN4  SEE NOTE 2. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :











BRADY V. TERMINAL R.R. ASSN., 303 U.S. 10 


NO. 163.  ARGUED JANUARY 4, 5, 1938.  - DECIDED JANUARY 31, 1938.  - 340
MO. 841 -  102 S.W.(2D) 903, REVERSED. 


THE DEFENDANT CARRIER HAULED A STRING OF FREIGHT CARS OVER ITS OWN
LINE AND LEFT THEM ON THE RECEIVING TRACK OF A CONNECTING CARRIER,
WHERE THEY THEN STOOD TEMPORARILY WHILST BEING INSPECTED BY AN EMPLOYEE
OF THE CONNECTING CARRIER TO DETERMINE WHETHER THEY SHOULD BE ACCEPTED
BY THE LATTER FOR FURTHER TRANSPORTATION.  DUE TO A DEFECTIVELY
ATTACHED GRAB-IRON, THE EMPLOYEE FELL FROM ONE OF THE CARS AND WAS
INJURED.  BOTH CARRIERS WERE ENGAGED IN INTERSTATE COMMERCE.  HELD THAT
THE DEFENDANT CARRIER WAS LIABLE UNDER THE FEDERAL SAFETY APPLIANCE
ACT. 

1.  THE DEFECTIVE CAR WAS "IN USE," WITHIN THE MEANING OF THE
STATUTE.  P. 13. 

2.  THE RESPONSIBILITY OF THE DEFENDANT CARRIER, WHICH HAD BROUGHT
THE CAR, WAS NOT ENDED, SINCE THE OTHER CARRIER HAD NOT ACCEPTED IT NOR
ASSUMED CONTROL.  P. 13. 

3.  THE DUTY OF THE DEFENDANT CARRIER UNDER THE ACT EXTENDED TO THE
PERSON INJURED, ALTHOUGH HE WAS NOT ITS EMPLOYEE.  P. 14. 

4.  A RAILROAD EMPLOYEE IS NOT DENIED THE PROTECTION OF THE ACT
BECAUSE HIS WORK IS THAT OF INSPECTION FOR THE PURPOSE OF DISCOVERING
DEFECTS, INCLUDING DEFECTS IN THE APPLIANCES PRESCRIBED.  P. 14. 

THE DUTY IMPOSED IS ABSOLUTE AND THE ACT EXPRESSLY EXCLUDES THE
DEFENSE OF ASSUMPTION OF RISK. 

BRADY V. TERMINAL RAILROAD ASSOCIATION. 

CERTIORARI TO THE SUPREME COURT OF MISSOURI. 

CERTIORARI, 302 U.S. 678, TO REVIEW THE REVERSAL OF A JUDGMENT
RECOVERED BY THE PRESENT PETITIONER IN AN ACTION FOR PERSONAL
INJURIES. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE SUPREME COURT OF MISSOURI REVERSED A JUDGMENT WHICH PETITIONER
HAD RECOVERED UNDER THE FEDERAL SAFETY APPLIANCE ACT, 340 MO. 841; 102
S.W.(2D) 903, AND RENDERED A FINAL JUDGMENT IN FAVOR OF RESPONDENT. 
SEE STATE V. RAGLAND, 339 MO. 452, 456, 458; 97 S.W.(2D) 113.  IN VIEW
OF THE IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE FEDERAL
STATUTE, THIS COURT GRANTED CERTIORARI. 

PETITIONER WAS EMPLOYED BY THE WABASH RAILWAY COMPANY AS A CAR
INSPECTOR IN ITS YARD AT GRANITE CITY, ILLINOIS.  HE WAS INJURED IN
NOVEMBER, 1927, WHILE INSPECTING A CAR WHICH WAS ONE OF A STRING OF
CARS BROUGHT BY THE RESPONDENT, TERMINAL RAILROAD ASSOCIATION OF ST.
LOUIS, FROM ST. LOUIS TO GRANITE CITY AND PLACED UPON A TRACK OF THE
WABASH KNOWN AS A "RECEIVING" OR "INBOUND" TRACK.  THE PURPOSE OF THE
INSPECTION WAS TO DETERMINE WHETHER THE CARS WERE TO BE ACCEPTED BY THE
WABASH.  BOTH THE WABASH AND THE TERMINAL COMPANIES WERE CARRIERS
ENGAGED IN INTERSTATE COMMERCE. 

WHILE MAKING HIS INSPECTION PETITIONER STOOD UPON ONE OF THE SIDE
LADDERS OF THE CAR, AND, IN ATTEMPTING TO PULL HIMSELF TO THE TOP OF
THE CAR, PETITIONER TOOK HOLD OF A GRABIRON WHICH, WITH THE BOARD TO
WHICH IT WAS ATTACHED, BECAME LOOSE, CAUSING HIM TO FALL.  THE BOARD
WAS FOUND TO HAVE "BECOME ROTTEN FROM END TO END ON THE UNDER SIDE, AND
TO SOME EXTENT ON THE UPPER SIDE AROUND THE BOLTS BY WHICH THE GRABIRON
WAS ATTACHED TO IT." 

PETITIONER FIRST SUED HIS EMPLOYER, THE WABASH, UNDER THE PROVISIONS
OF THE FEDERAL SAFETY APPLIANCE ACT, BUT A JUDGMENT IN HIS FAVOR WAS
REVERSED UPON THE GROUND THAT THE CAR HAD NOT YET BEEN ACCEPTED BY THE
WABASH COMPANY WHICH THEREFORE HAD NOT HAULED OR USED IT, OR PERMITTED
IT TO BE HAULED OR USED, WITHIN THE PROHIBITION OF THE STATUTE.  BRADY
V. WABASH RY. CO., 329 MO. 1123; 49 S.W.(2D) 24.  WHILE THAT SUIT WAS
PENDING, PETITIONER BROUGHT THE PRESENT SUIT AGAINST RESPONDENT. 

THE FEDERAL STATUTE, ACT OF APRIL 14, 1910, C. 160, SEC. 2, 36 STAT.
298, 45 U.S.C. 11, PROVIDES THAT 

"IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THE
PROVISIONS OF THIS ACT TO HAUL, OR PERMIT TO BE HAULED OR USED ON ITS
LINE ANY CAR SUBJECT TO THE PROVISIONS OF THIS ACT NOT EQUIPPED WITH
APPLIANCES PROVIDED FOR IN THIS ACT, TO WIT:  ALL CARS MUST BE EQUIPPED
WITH SECURE SILL STEPS AND EFFICIENT HAND BRAKES; ALL CARS REQUIRING
SECURE LADDERS AND SECURE RUNNING BOARDS SHALL BE EQUIPPED WITH SUCH
LADDERS AND RUNNING BOARDS, AND ALL CARS HAVING LADDERS SHALL ALSO BE
EQUIPPED WITH SECURE HAND HOLDS OR GRAB IRONS ON THEIR ROOFS AT THE
TOPS OF SUCH LADDERS:" 

THE ACT OF 1910 SUPPLEMENTED THE PROVISIONS OF THE ACT OF MARCH 2,
1893, C. 196, 27 STAT. 532, 45 U.S.C. 7, WHICH PROVIDED IN SEC. 8: 

"ANY EMPLOYEE OF ANY COMMON CARRIER ENGAGED IN INTERSTATE COMMERCE BY
RAILROAD WHO MAY BE INJURED BY ANY LOCOMOTIVE, CAR, OR TRAIN IN USE
CONTRARY TO THE PROVISION OF THIS CHAPTER SHALL NOT BE DEEMED THEREBY
TO HAVE ASSUMED THE RISK THEREBY OCCASIONED, ALTHOUGH CONTINUING IN THE
EMPLOYMENT OF SUCH CARRIER AFTER THE UNLAWFUL USE OF SUCH LOCOMOTIVE,
CAR, OR TRAIN HAD BEEN BROUGHT TO HIS KNOWLEDGE." 

SEE, ALSO, FEDERAL EMPLOYERS' LIABILITY ACT, 35 STAT. 65, C. 149,
SEC. 4, 45 U.S.C. 54. 

THE FIRST QUESTION IS WHETHER THE CAR CAN BE SAID TO HAVE BEEN IN USE
BY THE RESPONDENT AT THE TIME IN QUESTION.  THE STATUTE GIVES NO GROUND
FOR HOLDING THAT IT WAS THE INTENT OF CONGRESS THAT IN A SITUATION SUCH
AS IS HERE PRESENTED NEITHER THE WABASH NOR THE TERMINAL ASSOCIATION
SHOULD BE SUBJECT TO THE STATUTORY DUTY.  THE "USE, MOVEMENT OR HAULING
OF THE DEFECTIVE CAR," WITHIN THE MEANING OF THE STATUTE, HAD NOT ENDED
WHEN PETITIONER SUSTAINED HIS INJURIES.  CHICAGO GREAT WESTERN R. CO.
V. SCHENDEL, 267 U.S. 287, 291, 292.  THE CAR HAD BEEN BROUGHT INTO THE
YARD AT GRANITE CITY AND PLACED ON A RECEIVING TRACK TEMPORARILY
PENDING THE CONTINUANCE OF TRANSPORTATION.  IF NOT FOUND TO BE
DEFECTIVE, IT WOULD PROCEED TO DESTINATION; IF FOUND DEFECTIVE, IT
WOULD BE SUBJECT TO REMOVAL FOR REPAIRS.  IT IS NOT A CASE WHERE A
DEFECTIVE CAR HAS REACHED A PLACE OF REPAIR.  SEE BALTIMORE & OHIO R.
CO. V. HOOVEN, 297 FED. 919, 921, 923; NEW YORK, C. & ST. L.R. CO. V.
KELLY, 70 F.(2D) 548, 551.  THE CAR IN THIS INSTANCE HAD NOT BEEN
WITHDRAWN FROM USE.  JOHNSON V. SOUTHERN PACIFIC CO., 196 U.S. 1, 21,
22; DELK V. ST. LOUIS & SAN FRANCISCO R. CO., 220 U.S. 580, 584-586;
GREAT NORTHERN RAILWAY CO. V. OTOS, 239 U.S. 349, 351; CHICAGO GREAT
WESTERN R. CO. V. SCHENDEL, SUPRA.  THE CAR WAS STILL IN USE, THOUGH
MOTIONLESS.  MINNEAPOLIS, ST. P. & S.S.M. RY. CO. V. GONEAU, 269 U.S.
406.  IN VIEW OF THAT USE, EITHER THE TERMINAL ASSOCIATION OR THE
WABASH WAS SUBJECT TO THE OBLIGATION IMPOSED BY THE STATUTE. 

THE QUESTION THEN IS WHETHER THE RESPONSIBILITY OF THE TERMINAL
ASSOCIATION, WHICH BROUGHT IN THE CAR, HAD ENDED.  WE THINK THAT
QUESTION IS ANSWERED BY THE UNDISPUTED FACT THAT IT WAS PLACED BY THE
TERMINAL ASSOCIATION ON THE RECEIVING TRACK TO AWAIT INSPECTION AND
ACCEPTANCE BY THE WABASH. 

THE WABASH HAD NOT ACCEPTED IT.  THE JURY, WHICH FOUND FOR
PETITIONER, WERE INSTRUCTED THAT AS A CONDITION OF THAT VERDICT IT WAS
NECESSARY FOR THEM TO FIND THAT PETITIONER "WAS REQUIRED TO GO UPON
SAID CAR FOR THE PURPOSE OF INSPECTING THE EQUIPMENT THEREON AND OF
ACCEPTING OR REJECTING SAID CAR ON BEHALF OF HIS EMPLOYER, THE WABASH
RAILWAY COMPANY."  WE CANNOT AGREE WITH THE VIEW, EXPRESSED IN THE
OPINION OF THE STATE COURT IN REVERSING THE JUDGMENT, THAT "GRANTED
THAT THE CARS WERE STILL (IN THE LEGAL SENSE) IN THE POSSESSION OF THE
TERMINAL," IT MIGHT STILL BE HELD THAT "THE RIGHT OF CONTROL" HAD
PASSED TO THE WABASH.  AS THE WABASH HAD NOT ACCEPTED THE CAR, THE
WABASH HAD NOT ASSUMED CONTROL AND PETITIONER WAS EXAMINING THE CAR IN
ORDER TO DETERMINE WHETHER THE WABASH SHOULD ASSUME CONTROL. 

AS THE CAR HAD NOT BEEN WITHDRAWN FROM USE AND WAS STILL IN THE
POSSESSION OF THE TERMINAL ASSOCIATION, ITS STATUTORY OBLIGATION
CONTINUED AND THE QUESTION IS WHETHER THAT DUTY WAS OWING TO
PETITIONER.  THE FACT THAT PETITIONER WAS NOT AN EMPLOYEE OF THE
TERMINAL ASSOCIATION DID NOT NECESSARILY ABSOLVE IT FROM DUTY TO HIM. 
WE HAVE SAID THAT "THE NATURE OF THE DUTY IMPOSED BY THE STATUTE AND
THE BENEFITS RESULTING FROM ITS PERFORMANCE" USUALLY DETERMINE WHAT
PERSONS ARE ENTITLED TO INVOKE ITS PROTECTION.  IT WAS IN THIS VIEW
THAT WE HELD THAT THE POWER BRAKES REQUIRED BY THE SAFETY APPLIANCE ACT
WERE NOT ONLY FOR THE SAFETY OF RAILWAY EMPLOYEES AND PASSENGERS ON
TRAINS BUT ALSO OF TRAVELERS ON THE HIGHWAYS AT RAILWAY CROSSINGS. 
FAIRPORT R. CO. V. MEREDITH, 292 U.S. 589, 596, 597.  IN THE INSTANT
CASE, PETITIONER IN THE COURSE OF HIS DUTY WOULD HAVE OCCASION TO GO
UPON THE CAR AND USE THE GRABIRON, AND ACCORDINGLY THE BENEFIT OF THE
STATUTE WOULD EXTEND TO HIM, ALTHOUGH HE WAS NOT EMPLOYED BY THE
CARRIER HOLDING THE CAR IN USE, UNLESS HE WAS OUTSIDE THE SCOPE OF THE
STATUTE BECAUSE OF THE SPECIAL CHARACTER OF HIS WORK.  HIS WORK WAS
THAT OF INSPECTION TO DISCOVER DEFECTS OF THE SORT HERE FOUND TO EXIST
AS WELL AS OTHERS. 

THIS FINAL QUESTION MUST BE DETERMINED IN THE LIGHT OF THE NATURE OF
THE OBLIGATION RESTING UPON THE CARRIER IN RELATION TO THE USE OF A
DEFECTIVE CAR.  THE STATUTORY LIABILITY IS NOT BASED UPON THE CARRIER'S
NEGLIGENCE.  THE DUTY IMPOSED IS AN ABSOLUTE ONE AND THE CARRIER IS NOT
EXCUSED BY ANY SHOWING OF CARE HOWEVER ASSIDUOUS.  ST. LOUIS, I.M. & S.
RY. CO. V. TAYLOR, 210 U.S. 281, 295; CHICAGO, B. & Q. RY. CO. V.
UNITED STATES, 220 U.S. 559, 570; LOUISVILLE & NASHVILLE R. CO. V.
LAYTON, 243 U.S. 617, 620, 621; GREAT NORTHERN RY. CO. V. OTOS, SUPRA.
THE BREADTH OF THE STATUTORY REQUIREMENTS IS SHOWN BY THE FACT THAT IT
EMBRACES ALL LOCOMOTIVES, CARS AND SIMILAR VEHICLES USED ON ANY RAILWAY
THAT IS A HIGHWAY OF INTERSTATE COMMERCE AND IS NOT CONFINED
EXCLUSIVELY TO VEHICLES ENGAGED IN SUCH COMMERCE.  SOUTHERN RY. CO. V.
UNITED STATES, 222 U.S. 20.  LAYING DOWN THIS COMPREHENSIVE RULE AS A
MATTER OF PUBLIC POLICY, CONGRESS HAS MADE NO EXCEPTION OF THOSE
EMPLOYED IN INSPECTING CARS.  THE STATUTE HAS BEEN LIBERALLY CONSTRUED
"SO AS TO GIVE A RIGHT OF RECOVERY FOR EVERY INJURY THE PROXIMATE CAUSE
OF WHICH WAS A FAILURE TO COMPLY WITH A REQUIREMENT OF THE ACT." 
SWINSON V. CHICAGO, ST. P., M. & O. RY. CO., 294 U.S. 529, 531.  IN
DAVIS V. WOLFE, 263 U.S. 239, 243, REVIEWING THE EARLIER CASES, THE
COURT HELD THAT ONE CAN RECOVER "IF THE FAILURE TO COMPLY WITH THE
REQUIREMENTS OF THE ACT IS A PROXIMATE CAUSE OF THE ACCIDENT, RESULTING
IN INJURY TO HIM WHILE IN THE DISCHARGE OF HIS DUTY, ALTHOUGH NOT
ENGAGED IN AN OPERATION IN WHICH THE SAFETY APPLIANCES ARE SPECIFICALLY
DESIGNED TO FURNISH HIM PROTECTION."  EVEN WHERE THE REQUIRED EQUIPMENT
IS KNOWN TO HAVE BECOME DEFECTIVE AND THE CAR IS BEING HAULED TO THE
NEAREST AVAILABLE POINT FOR REPAIRS, WHILE THE ACT RELIEVES THE CARRIER
IN SUCH A CASE FROM THE PRESCRIBED PENALTIES, THE CARRIER STILL REMAINS
SUBJECT BY THE EXPRESS TERMS OF THE STATUTE TO CIVIL LIABILITY FOR
INJURIES SUSTAINED BY "ANY RAILROAD EMPLOYEE" IN THE COURSE OF SUCH A
MOVEMENT BY REASON OF THE DEFECTIVE EQUIPMENT.  ACT OF APRIL 14, 1910,
C. 160, SEC. 4, 36 STAT. 299; 45 U.S.C. 13.  SEE NEW YORK, C. & ST.
L.R. CO. V. KELLY, SUPRA. 

WE THINK THAT THESE CONSIDERATIONS REQUIRE THE CONCLUSION THAT ONE IS
NOT TO BE DENIED THE BENEFIT OF THE ACT BECAUSE HIS WORK WAS THAT OF
INSPECTION FOR THE PURPOSE OF DISCOVERING DEFECTS.  AS WE SAID IN
LOUISVILLE & NASHVILLE R. CO. V. LAYTON, SUPRA$N, THE LIABILITY
"SPRINGS FROM ITS BEING MADE UNLAWFUL TO USE CARS NOT EQUIPPED AS
REQUIRED,  - NOT FROM THE POSITION THE EMPLOYEE MAY BE IN OR THE WORK
WHICH HE MAY BE DOING AT THE MOMENT WHEN HE IS INJURED," PROVIDED THE
DEFECTIVE EQUIPMENT IS THE PROXIMATE CAUSE OF THE INJURY. 

THE FACT THAT PETITIONER WAS LOOKING FOR DEFECTS OF THE SORT WHICH
CAUSED HIS INJURY DOES NOT PREVENT RECOVERY AS THE STATUTE EXPRESSLY
EXCLUDES THE DEFENSE OF ASSUMPTION OF RISK.  45 U.S.C. 7, 54. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :













HENNEFORD V. NOR. PACIFIC RY., 303 U.S. 17 


NO. 243.  ARGUED JANUARY 11, 1938.  - DECIDED JANUARY 31, 1938.  - 15
F.SUPP.  302, REVERSED. 


UPON APPEAL FROM A DECREE OF THE DISTRICT COURT ENJOINING THE
ENFORCEMENT OF A STATE TAX, THE AMOUNT OF WHICH, AS ALLEGED IN THE
BILL, WAS LESS THAN $3,000, HELD: 

1.  THAT THE DISTRICT COURT HAD NO JURISDICTION NOTWITHSTANDING OTHER
ALLEGATIONS TO THE EFFECT THAT FAILURE TO PAY WOULD ENTAIL MUCH GREATER
DAMAGE TO THE PLAINTIFF BY WAY OF PENALTIES, SEIZURE AND SALE OF
PROPERTY AND DAMAGE TO BUSINESS.  HEALY V. RATTA, 292 U.S. 263, 268. 
P. 19. 

2.  A MOTION FOR LEAVE TO FILE AN AFFIDAVIT TO SUPPLEMENT THE RECORD
FOR THE PURPOSE OF SHOWING THE AMOUNT OF THE TAX FOR SUCCEEDING MONTHS
MUST BE DENIED.  ID. 

3.  THE CASE SHOULD BE DECIDED UPON THE RECORD BEFORE THIS COURT; THE
JURISDICTION OF THE DISTRICT COURT SHOULD BE TESTED BY THE CASE MADE BY
THE BILL; AND THAT COURT SHOULD BE DIRECTED TO DISMISS FOR WANT OF
JURISDICTION.  ID. 

HENNEFORD ET AL. V. NORTHERN PACIFIC RAILWAY CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF WASHINGTON. 

PER CURIAM. 

THIS SUIT WAS BROUGHT TO RESTRAIN THE ENFORCEMENT AGAINST THE
NORTHERN PACIFIC RAILWAY COMPANY OF THE "COMPENSATING TAX" IMPOSED BY
TITLE IV OF CHAPTER 180 OF THE LAWS OF WASHINGTON OF 1935.  THE ACT
LEVIES A TAX OF 2% FOR THE PRIVILEGE OF USING WITHIN THE STATE ANY
ARTICLE OF TANGIBLE PERSONAL PROPERTY PURCHASED SUBSEQUENT TO APRIL 30,
1935.  CF. HENNEFORD V. SILAS MASON CO., 300 U.S. 577.  THE BILL
ALLEGED THAT IN THE NECESSARY MAINTENANCE, OPERATION AND REPAIR OF ITS
RAILROAD, THE COMPANY PURCHASES MATERIALS, SUPPLIES, SHOP MACHINERY AND
TOOLS, A PART OF WHICH ARE BOUGHT IN OTHER STATES AND TRANSPORTED INTO
THE STATE OF WASHINGTON, AND THAT SUCH PURCHASES IN OTHER STATES IN MAY
AND JUNE, 1935, AS SHOWN BY THE LIST ANNEXED TO THE COMPLAINT AND MADE
A PART OF IT, AMOUNTED TO $102,204.18, INCLUDING THE COST OF
TRANSPORTATION.  THE BILL ALSO ALLEGED THAT THE DEFENDANTS (APPELLANTS
HERE) COMPOSING THE STATE TAX COMMISSION OF THE STATE OF WASHINGTON HAD
DEMANDED THE TAX OF 2% OF THIS SUM AND UNLESS ENJOINED WOULD ASSESS
PENALTIES ON THE TAX AMOUNTING TO $2,044.08, AND WOULD CAUSE SUMMARY
PROCESS TO BE ISSUED FOR THE SEIZURE AND SALE OF THE COMPANY'S PROPERTY
AND THAT ITS BUSINESS WOULD THEREBY BE INTERFERED WITH TO ITS
IRREPARABLE DAMAGE IN THE SUM OF MORE THAN $100,000, AND THAT THE
COMPANY WAS WITHOUT AN ADEQUATE REMEDY AT LAW.  THE VALIDITY OF THE TAX
WAS ASSAILED UNDER THE COMMERCE AND DUE PROCESS CLAUSES OF THE FEDERAL
CONSTITUTION.  AN INTERLOCUTORY INJUNCTION WAS SOUGHT AND THE CASE WAS
HEARD IN THE DISTRICT COURT BY THREE JUDGES.  28 U.S.C. 380.  IT WAS
STIPULATED THAT THE CASE BE SUBMITTED FOR FINAL DETERMINATION ON ITS
MERITS AND DECREE WAS ENTERED PERMANENTLY ENJOINING THE ENFORCEMENT OF
THE TAX.  15 F.SUPP.  302.  THE CASE COMES HERE ON APPEAL. 

BY ITS ORDER OF OCTOBER 11, 1937, THIS COURT NOTED PROBABLE
JURISDICTION AND DIRECTED THE ATTENTION OF COUNSEL TO THE QUESTIONS AS
TO (1) THE EXISTENCE OF THE REQUIRED JURISDICTIONAL AMOUNT AND (2) THE
ADEQUACY OF THE REMEDY AT LAW.  APPELLANTS CONCEDE THAT IN VIEW OF THE
TERMS OF THE STATUTE PROHIBITING ANY ACTION TO RECOVER THE TAX, IF
PAID, EXCEPT AS THEREIN PROVIDED (LAWS OF WASHINGTON, 1935, C. 180,
TITLE XVIII, SEC. 199) THERE WOULD BE NO REMEDY AVAILABLE AT LAW IN THE
FEDERAL COURT AND HENCE THAT FEDERAL EQUITY JURISDICTION WOULD NOT BE
OUSTED.  CITY BANK CO. V. SCHNADER, 291 U.S. 24, 29.  WITH RESPECT TO
THE JURISDICTIONAL AMOUNT, IT APPEARS ON THE FACE OF THE COMPLAINT THAT
THE TAX, THE ENFORCEMENT OF WHICH IS SOUGHT TO BE ENJOINED, AMOUNTED
ONLY TO $2,044.08 AND THAT THE DAMAGES ALLEGED WOULD BE INCURRED ONLY
BY FAILURE TO MAKE THE REQUIRED PAYMENT.  IT FOLLOWS THAT THE REQUISITE
JURISDICTIONAL AMOUNT IS NOT INVOLVED.  SEE HEALY V. RATTA, 292 U.S.
263, 268, AND CASES THERE CITED. 

APPELLEE MOVES FOR LEAVE TO FILE AN AFFIDAVIT TO SUPPLEMENT THE
RECORD FOR THE PURPOSE OF SHOWING THE AMOUNT OF THE TAX FOR SUCCEEDING
MONTHS.  THE MOTION IS DENIED.  THE COURT IS OF THE OPINION THAT THE
CASE SHOULD BE DECIDED UPON THE RECORD BEFORE IT AND THAT THE
JURISDICTION OF THE DISTRICT COURT SHOULD BE TESTED BY THE CASE MADE BY
THE BILL OF COMPLAINT.  THE JUDGMENT IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE BILL FOR
WANT OF JURISDICTION.  REVERSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :










ATKINSON V. TAX COMM'N, 303 U.S. 20 


NO. 303.  ARGUED JANUARY 13, 1938.  - DECIDED JANUARY 31, 1938.  - 156
ORE.  461 -  67 P.(2D) 161, AFFIRMED. 


OREGON APPLIED ITS PERSONAL INCOME TAX LAW TO THE NET INCOME DERIVED
BY INDIVIDUALS FROM THEIR WORK, WITHIN THE BOUNDARIES OF THE STATE, IN
THE CONSTRUCTION OF THE BONNEVILLE DAM ON THE COLUMBIA RIVER, A
NAVIGABLE STREAM, UNDER A CONTRACT WITH THE UNITED STATES.  THE WORK
WAS PERFORMED PARTLY IN THE BED OF THE RIVER AND PARTLY ON OTHER LAND
PURCHASED BY THE UNITED STATES.  HELD VALID. 

1.  THE TAX DID NOT BURDEN THE OPERATIONS OF THE FEDERAL GOVERNMENT. 
P. 21. 

2.  SUBJECT TO THE PARAMOUNT AUTHORITY OF THE FEDERAL GOVERNMENT TO
HAVE THE WORK PERFORMED FOR PURPOSES WITHIN THE FEDERAL PROVINCE, THE
STATE RETAINED ITS TITLE AND TERRITORIAL JURISDICTION OVER THE RIVER
BED.  P. 22. 

3.  WITH LIKE RESTRICTION, THE STATE RETAINED ITS TERRITORIAL
JURISDICTION OVER THE LAND PURCHASED, NOTWITHSTANDING A GENERAL LAW OF
OREGON CONSENTING TO PURCHASE OF LAND BY THE UNITED STATES FOR THE
ERECTION OF "ANY NEEDFUL BUILDINGS" AND PURPORTING TO CEDE EXCLUSIVE
JURISDICTION OVER THE SAME; SINCE THE FEDERAL GOVERNMENT NEED NOT
ACCEPT SUCH JURISDICTION WHEN TENDERED AND IN THIS INSTANCE THE FACTS
SHOW THAT IT INTENDED OTHERWISE.  P. 23. 

4.  THE TAX INVOLVED NO INTERFERENCE WITH THE CARRYING OUT OF THE
FEDERAL PROJECT.  P. 25. 

ATKINSON ET AL. V. STATE TAX COMMISSION OF OREGON ET AL. 

APPEAL FROM THE SUPREME COURT OF OREGON. 

APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF OREGON SUSTAINING A
TAX. 

PER CURIAM. 

THIS CASE PRESENTS THE QUESTION OF THE VALIDITY OF THE PERSONAL
INCOME TAX LAW OF OREGON (OREGON CODE 1930, C. XV, TITLE LXIX, SECS. 69
1501 TO 69-1538, AS AMENDED BY LAWS OF 1933, C. 322 AND 387 AND BY LAWS
OF 1933, SECOND SPECIAL SESSION, C. 31) AS APPLIED TO THE NET INCOME OF
THE APPELLANTS DERIVED FROM THEIR WORK WITHIN THE EXTERIOR LIMITS OF
THE STATE IN THE CONSTRUCTION OF THE BONNEVILLE DAM ON THE COLUMBIA
RIVER UNDER A CONTRACT WITH THE UNITED STATES.  THE CONTRACT WAS MADE
IN FEBRUARY, 1934, AND THE WORK WAS COMPLETED IN THAT YEAR.  THE TAX
WAS ASSAILED UPON THE GROUNDS (1) THAT IT BURDENED THE OPERATIONS OF
THE FEDERAL GOVERNMENT AND (2) THAT THE AREA WITHIN WHICH THE WORK WAS
DONE WAS WITHIN THE EXCLUSIVE JURISDICTION OF THE UNITED STATES.  THE
SUPREME COURT OF THE STATE SUSTAINED THE TAX, 156 ORE.  461; 62 P.(2D)
13, 67 P.(2D) 161, AND THE CONTRACTORS APPEAL. 

WITH RESPECT TO THE CONTENTION THAT THE STATE LAW LAYS AN
UNCONSTITUTIONAL BURDEN UPON THE FEDERAL GOVERNMENT, THE CASE IS
CONTROLLED BY OUR PREVIOUS DECISIONS.  METCALF & EDDY V. MITCHELL, 269
U.S. 514; GENERAL CONSTRUCTION CO. V. FISHER, 295 U.S. 715; JAMES V.
DRAVO CONTRACTING CO., 302 U.S. 134; SILAS MASON CO. V. TAX COMMISSION,
302 U.S. 186.  IN THE TWO CASES LAST MENTIONED THE TAX WHICH WAS UPHELD
WAS UPON THE GROSS INCOME OF THE CONTRACTORS.  IN METCALF & EDDY V.
MITCHELL, SUPRA, AND GENERAL CONSTRUCTION CO. V. FISHER, SUPRA, THE TAX
WAS UPON THE NET INCOME. 

AS TO TERRITORIAL JURISDICTION, IT APPEARS THAT THE AREA WITHIN THE
BOUNDARIES OF OREGON IN WHICH THE WORK WAS PERFORMED EMBRACED (A) THE
BED OF THE COLUMBIA RIVER, WHERE THE MAIN STRUCTURAL WORKS ARE PLACED,
AND (B) BRADFORD ISLAND AND A PORTION OF THE MAINLAND. 

THE UNITED STATES DID NOT ACQUIRE TITLE TO THE BED OF THE RIVER. 
UPON THIS POINT THE STATE COURT SAID (PP. 481-482): 

"SECTION 60-1302, OREGON CODE 1930(LAWS 1874, P. 10), GRANTS TO THE
GOVERNOR OF OREGON AUTHORITY AND POWER TO CONVEY TO THE UNITED STATES
TITLE TO LAND BELONGING TO THE STATE AND COVERED BY THE WATERS OF THE
UNITED STATES, NOT EXCEEDING TEN ACRES IN ANY ONE TRACT, AS THE SITE OF
A LIGHTHOUSE, BEACON OR OTHER AID TO NAVIGATION, UPON APPLICATION MADE
TO HIM BY A DULY AUTHORIZED AGENT OF THE UNITED STATES, AND FURTHER
GRANTS HIM AUTHORITY 'TO CEDE TO THE SAID UNITED STATES JURISDICTION
OVER THE SAME,' RESERVING, HOWEVER, TO THE STATE THE RIGHT TO SERVE
THEREON CIVIL OR CRIMINAL PROCESS ISSUING UNDER AUTHORITY OF THE
STATE.  NO APPLICATION HAS BEEN MADE TO THE GOVERNOR OF THIS STATE OR
TO THE LEGISLATURE FOR CONVEYANCE OF ANY PART OF THE BED OF EITHER THE
NORTH OR SOUTH CHANNEL OF THE COLUMBIA RIVER WITHIN THE PROJECT, OR FOR
CESSION TO THE FEDERAL GOVERNMENT OF JURISDICTION OVER THE SAME.... 

"NO AUTHORITY HAS BEEN CALLED TO OUR ATTENTION TO THE EFFECT THAT THE
STATE OF OREGON HAS IN ANY WAY RELINQUISHED ITS SOVEREIGNTY OVER THE
AREA OCCUPIED BY THE WATERS OF BRADFORD SLOUGH AND THAT PART OF THE
NORTH CHANNEL OF THE COLUMBIA RIVER WHICH IS WITHIN THE TERRITORIAL
LIMITS OF THE STATE." 

THE CASE IN THIS RELATION FALLS WITHIN THE PRINCIPLE OF OUR DECISION
IN JAMES V. DRAVO CONTRACTING CO., SUPRA.  THE QUESTION, WE THERE SAID,
WAS NOT ONE OF THE PARAMOUNT AUTHORITY OF THE FEDERAL GOVERNMENT TO
HAVE THE WORK PERFORMED FOR PURPOSES WITHIN THE FEDERAL PROVINCE.  THE
TITLE TO THE BED OF THE RIVER WAS IN THE STATE.  AND, ALTHOUGH SUBJECT
TO THE DOMINANT RIGHT OF THE FEDERAL GOVERNMENT, THE SERVIENT TITLE
CONTINUED IN THE STATE WHICH THUS RETAINED ITS TERRITORIAL JURISDICTION
FOR PURPOSES NOT INCONSISTENT WITH THE EXERCISE BY THE FEDERAL
GOVERNMENT OF ITS CONSTITUTIONAL FUNCTIONS.  SEE, ALSO, SILAS MASON CO.
V. TAX COMMISSION, SUPRA. 

THE REMAINING QUESTION CONCERNS THE LANDS ON BRADFORD ISLAND AND THE
MAINLAND WHICH WERE PURCHASED BY THE UNITED STATES.  APPELLANTS RELY
UPON THE OREGON STATUTE GIVING CONSENT TO THE UNITED STATES TO PURCHASE
OR OTHERWISE ACQUIRE ANY LAND WITHIN THE STATE "FOR THE PURPOSE OF
ERECTING THEREON ANY NEEDFUL PUBLIC BUILDINGS" UNDER AUTHORITY OF ANY
ACT OF CONGRESS, AND PROVIDING THAT THE UNITED STATES SHOULD HAVE "THE
RIGHT OF EXCLUSIVE JURISDICTION OVER THE SAME," SAVING THE AUTHORITY OF
THE STATE FOR THE SERVICE OF PROCESS.  OREGON CODE, 1930, SEC. 60
1303. 

IN SILAS MASON CO. V. TAX COMMISSION, SUPRA, WE SAID THAT AS A
TRANSFER OF EXCLUSIVE JURISDICTION RESTS UPON A GRANT BY THE STATE, IT
FOLLOWS, IN ACCORDANCE WITH FAMILIAR PRINCIPLES APPLICABLE TO GRANTS,
THAT THE GRANT MAY BE ACCEPTED OR DECLINED.  ACCEPTANCE MAY BE PRESUMED
IN THE ABSENCE OF EVIDENCE OF A CONTRARY INTENT.  BUT WE FOUND NO
CONSTITUTIONAL PRINCIPLE "WHICH COMPELS ACCEPTANCE BY THE UNITED STATES
OF AN EXCLUSIVE JURISDICTION CONTRARY TO ITS OWN CONCEPTION OF ITS
INTERESTS."  THE MERE FACT THAT THE GOVERNMENT NEEDS TITLE TO PROPERTY
WITHIN THE BOUNDARIES OF A STATE "DOES NOT NECESSITATE THE ASSUMPTION
BY THE GOVERNMENT OF THE BURDENS INCIDENT TO AN EXCLUSIVE
JURISDICTION." 

IN THIS INSTANCE, THE STATE COURT TOOK THE VIEW THAT THE FEDERAL
GOVERNMENT HAD NOT ACCEPTED AND DID NOT INTEND TO EXERCISE EXCLUSIVE
LEGISLATIVE AUTHORITY OVER THE LANDS WHICH HAD BEEN PURCHASED FOR THIS
PROJECT.  THE COURT SAID: 

"THE MERE FACT THAT THERE MAY BE ON THE STATUTE BOOKS OF THE STATE A
GENERAL LAW, SUCH AS SEC. 60-1303, OREGON CODE 1930, CONSENTING TO THE
PURCHASE OF LAND BY THE UNITED STATES AND GRANTING TO THE NATIONAL
GOVERNMENT THE RIGHT TO EXERCISE EXCLUSIVE JURISDICTION THEREOVER, DOES
NOT IMPLY THAT OVER ALL LANDS PURCHASED BY THE NATIONAL GOVERNMENT IN
THE STATE AFTER THE ENACTMENT OF SUCH LAW THE STATE IS DIVESTED IPSO
FACTO OF SOVEREIGNTY, AND EXCLUSIVE CONTROL OVER THE ACQUIRED AREA IS
ASSUMED BY THE FEDERAL GOVERNMENT.  IN THE INSTANT CASE THERE IS
NOTHING TO INDICATE THAT THE FEDERAL GOVERNMENT DESIRES TO EXERCISE
EXCLUSIVE LEGISLATIVE JURISDICTION OVER THE LAND PURCHASED BY IT WITHIN
THE BONNEVILLE PROJECT.  IT WOULD BE SOMEWHAT INCONSISTENT TO ASSUME
THAT SINCE IT DOES NOT HAVE SUCH JURISDICTION OVER THE MAJOR PART OF
THE STRUCTURES WHICH ARE NOW BEING BUILT, THE FEDERAL GOVERNMENT IS
SEEKING TO EXERCISE EXCLUSIVE JURISDICTION OVER THAT PART OF THE WORKS
LOCATED ON LANDS TITLE TO WHICH IT HAS ACQUIRED. 

"THE RECORD DISCLOSES THAT THE GOVERNMENT OFFICIALS IN CHARGE OF THE
CONSTRUCTION WORK REQUIRED THE CONTRACTORS TO COME UNDER THE PROVISIONS
OF THE WORKMEN'S COMPENSATION LAW OF THE STATE IN WHICH THE WORK WAS TO
BE PERFORMED.  AT THE TIME THE CONTRACT WITH THE PLAINTIFFS WAS ENTERED
INTO AT LEAST TWO STATES HAD HELD THAT THEIR WORKMEN'S COMPENSATION
LAWS WERE NOT EFFECTIVE ON TERRITORY OVER WHICH THE FEDERAL GOVERNMENT
HAD EXCLUSIVE JURISDICTION:  WILLIS V. OSCAR DANIELS CO., 200 MICH.
30(166 N.W. 496); MURRAY V. JOE GERRICK & CO., 172 WASH. 365(20 P.(2D)
591).  ON FEBRUARY 5, 1934, THE SUPREME COURT OF THE UNITED STATES
AFFIRMED THE LATTER CASE.  SEE 291 U.S. 315. 

"THE CONTRACT BETWEEN THE PLAINTIFFS AND THE FEDERAL GOVERNMENT WAS
DATED FEBRUARY 6, 1934.  IN VIEW OF THOSE DECISIONS IT IS REASONABLE TO
ASSUME THAT THE OFFICIALS IN CHARGE OF CONSTRUCTION OF THE BONNEVILLE
DAM ON BEHALF OF THE FEDERAL GOVERNMENT UNDERSTOOD THAT THE LAND
INCLUDED IN THE PROJECT WAS NOT UNDER THE EXCLUSIVE LEGISLATIVE
JURISDICTION OF THE UNITED STATES.  OTHERWISE THEY WOULD NOT HAVE
REQUIRED CONTRACTORS TO PROVIDE STATE WORKMEN'S COMPENSATION." 

THE CONTRACT BETWEEN THE GOVERNMENT AND APPELLANTS IS NOT IN EVIDENCE
BUT THE RECORD DISCLOSES, AS STATED BY THE STATE COURT, THAT THE
GOVERNMENT DID NOT SEEK TO EXCLUDE THE STATE FROM ALL LEGISLATIVE
AUTHORITY, AN EXCLUSION WHICH WOULD HAVE FOLLOWED FROM AN ACCEPTANCE OF
A GRANT OF "EXCLUSIVE JURISDICTION" WITH THE SOLE RESERVATION OF THE
RIGHT TO SERVE PROCESS.  THE ENFORCEMENT AND ADMINISTRATION OF THE
OREGON COMPENSATION LAW (SEE OREGON CODE 1930, SECS. 49-1801 TO 49
1845), WITH WHICH THE CONTRACTORS WERE REQUIRED TO COMPLY, WERE
INCOMPATIBLE WITH THE EXISTENCE OF EXCLUSIVE LEGISLATIVE AUTHORITY IN
THE UNITED STATES.  FN1  IF, HOWEVER, EXCLUSIVE JURISDICTION, ALTHOUGH
OFFERED, WAS NOT ACCEPTED BY THE UNITED STATES, THERE IS NO WARRANT FOR
THE CONCLUSION THAT THE STATE DID NOT RETAIN ITS TERRITORIAL
JURISDICTION OVER THE AREA IN QUESTION SO FAR AS ITS EXERCISE INVOLVED
NO INTERFERENCE WITH THE CARRYING OUT OF THE FEDERAL PROJECT.  AND AS
WE HAVE DECIDED THAT THERE IS NO SUCH INTERFERENCE THROUGH THE
ENFORCEMENT OF A TAX SUCH AS IS HERE ASSAILED, WE FIND NO GROUND FOR
OVERRULING THE DECISION OF THE STATE COURT. 

THE JUDGMENT IS AFFIRMED. 

FN1  THE PURCHASES OF THE LANDS, HERE INVOLVED, WERE MADE BY THE
GOVERNMENT, AND THE CONTRACT WITH THE APPELLANTS WAS MADE AND
PERFORMED, PRIOR TO THE ENACTMENT OF THE ACT OF CONGRESS OF JUNE 25,
1936, 49 STAT. 1938, AND WE EXPRESS NO OPINION AS TO THE EFFECT OF THAT
ACT IN RELATION TO LANDS AS TO WHICH EXCLUSIVE JURISDICTION HAD
PREVIOUSLY BEEN GRANTED TO AND ACCEPTED BY THE UNITED STATES. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :











U.S. V. ESNAULT-PELTERIE, 303 U.S. 26 


NO. 231.  ARGUED JANUARY 7, 1938.  - DECIDED JANUARY 31, 1938.  - 84 CT.
CLS. 625, AFFIRMED. 


1.  REVIEW BY THIS COURT OF A JUDGMENT OF THE COURT OF CLAIMS AGAINST
THE UNITED STATES IN A SUIT FOR INFRINGEMENT OF A PATENT, BROUGHT UNDER
THE ACT OF JUNE 25, 1910, AS AMENDED, IS LIMITED TO QUESTIONS OF LAW. 
P. 28. 

2.  IN A PATENT CASE IN THE COURT OF CLAIMS UNDER THE ACT OF 1910 THE
QUESTIONS OF VALIDITY AND INFRINGEMENT ARE QUESTIONS OF FACT.  P. 29. 

3.  THE DUTY OF THE COURT OF CLAIMS TO FIND THE ULTIMATE FACTS,
REQUIRES THAT IT RESOLVE CONFLICTING INFERENCES AND DRAW THE NECESSARY
FACTUAL CONCLUSIONS FROM THE EVIDENCE.  ID. 

4.  THE COURT OF CLAIMS MADE ELABORATE CIRCUMSTANTIAL FINDINGS
PRECEDING ITS TWO ULTIMATE FINDINGS THAT THE PATENT SUED ON WAS VALID
AND INFRINGED BY THE UNITED STATES.  ITS OPINION DISCLOSED THAT THERE
WAS CONTRADICTORY TESTIMONY BY EXPERTS FOR THE CLAIMANT AND FOR THE
UNITED STATES, BUT THE EVIDENCE WAS NOT, AND COULD NOT PROPERLY BE,
INCORPORATED IN THE RECORD BEFORE THIS COURT.  HELD THAT WHILE THIS
COURT COULD INQUIRE WHETHER THE ULTIMATE FINDINGS WERE NECESSARILY
OVERBORNE BY THE SUBORDINATE ONES, THUS SHOWING THAT THE JUDGMENT
AGAINST THE UNITED STATES WAS NOT SUSTAINABLE IN POINT OF LAW, IT COULD
NOT TAKE UP THE PATENTS SET FORTH IN THE FINDINGS AND, IN THE ABSENCE
OF THE EXPLANATORY AND CONSTRUING TESTIMONY OF THE EXPERT WITNESSES,
ATTEMPT TO PASS UPON THE VARIOUS QUESTIONS INVOLVED, AND UPON SUCH A
NECESSARILY LIMITED CONSIDERATION OVERRULE THE CONCLUSIONS OF FACT
REACHED BY THE COURT OF CLAIMS UPON THE ENTIRE RECORD.  P. 30. 

UNITED STATES V. ESNAULT-PELTERIE. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 302 U.S. 668, TO REVIEW A JUDGMENT AGAINST THE UNITED
STATES ON A CLAIM OF PATENT INFRINGEMENT.  SEE S.C. 299 U.S. 201. 

PER CURIAM. 

RESPONDENT BROUGHT THIS SUIT TO RECOVER COMPENSATION FOR THE USE AND
MANUFACTURE BY AND FOR THE UNITED STATES OF A DEVICE ALLEGED TO BE
COVERED BY RESPONDENT'S PATENT NO. 1,115,795 FOR AN INVENTION FOR THE
CONTROL OF THE EQUILIBRIUM OF AIRPLANES.  ON THE FIRST HEARING, THE
COURT OF CLAIMS MADE SPECIAL FINDINGS OF FACT AND DECIDED AS A
CONCLUSION OF LAW THAT RESPONDENT'S PATENT WAS VALID AND HAD BEEN
INFRINGED BY THE UNITED STATES AND THAT RESPONDENT WAS ENTITLED TO
COMPENSATION.  JUDGMENT WAS ENTERED ACCORDINGLY.  81 CT. CLS. 785.  ON
REVIEW BY WRIT OF CERTIORARI, THIS COURT HELD THAT VALIDITY AND
INFRINGEMENT WERE ULTIMATE FACTS TO BE FOUND BY THE COURT OF CLAIMS
AND, AS THESE FACTS HAD NOT BEEN FOUND, THE JUDGMENT WAS VACATED AND
THE CASE WAS REMANDED TO THAT COURT WITH INSTRUCTIONS TO FIND
SPECIFICALLY WHETHER RESPONDENT'S PATENT WAS VALID AND, IF SO, WHETHER
IT HAD BEEN INFRINGED.  UNITED STATES V. ESNAULT-PELTERIE, 299 U.S.
201. 

THE PARTIES THEN MOVED IN THE COURT OF CLAIMS FOR ADDITIONAL FINDINGS
AND THAT COURT AMENDED ITS SPECIAL FINDINGS BY ADDING THE FOLLOWING
FINDINGS OF FACT: 

"XLVIII.  CLAIMS 2, 5, 6, 7, 8, AND 9 OF THE ESNAULT-PELTERIE PATENT
IN SUIT ARE VALID. 

"XLIX.  THE THREE ALLEGED INFRINGING AIRPLANES OF THE DEFENDANT ALL
POSSESS THE SINGLE VERTICAL LEVER MOVABLE IN EVERY DIRECTION FOR
CONTROLLING THE LATERAL OR LONGITUDINAL EQUILIBRIUM OF THE AIRPLANE,
CONNECTED TO EQUIVALENT CONTROLLING SURFACES HAVING THE SAME FUNCTIONAL
EFFECTS AS THOSE DISCLOSED IN THE PATENT. 

"CLAIMS 2, 5, 6, 7, 8, AND 9 OF THE ESNAULT-PELTERIE PATENT IN SUIT
ARE INFRINGED BY DEFENDANT." 

THE COURT THEN ENTERED AN INTERLOCUTORY JUDGMENT HOLDING RESPONDENT
ENTITLED TO COMPENSATION AND DIRECTING THAT THE COURT'S PREVIOUS
FINDINGS, AS AMENDED, TOGETHER WITH ITS OPINION AS THERETOFORE
ANNOUNCED, SHOULD STAND.  84 CT. CLS. 625.  CERTIORARI WAS GRANTED. 

WITHOUT ITS CONSENT, THE UNITED STATES MAY NOT BE SUED FOR
INFRINGEMENT OF A PATENT.  CROZIER V. KRUPP, 224 U.S. 290.  THE
CONGRESS HAS DETERMINED THE CONDITIONS UPON WHICH THE UNITED STATES
CONSENTS TO BE SUED.  BY THE APPLICABLE STATUTE CONGRESS HAS PERMITTED
SUIT TO BE BROUGHT IN THE COURT OF CLAIMS FOR REASONABLE COMPENSATION
FOR THE INFRINGING USE OR MANUFACTURE.  ACT OF JUNE 25, 1910, 36 STAT.
251, AS AMENDED BY ACT OF JULY 1, 1918, 40 STAT. 705.  35 U.S.C. 68. 
REVIEW BY THIS COURT OF THE JUDGMENT IN SUCH A SUIT IS THUS SUBJECT TO
THE RULES WHICH HAVE BEEN ESTABLISHED FOR THE REVIEW OF THE JUDGMENTS
OF THE COURT OF CLAIMS.  THAT REVIEW IS LIMITED TO QUESTIONS OF LAW. 

THE ACT OF MARCH 3, 1863, C. 92, 12 STAT. 765, PROVIDING FOR SUITS
AGAINST THE UNITED STATES IN THE COURT OF CLAIMS, AUTHORIZED APPEALS TO
THIS COURT UNDER SUCH REGULATIONS AS THIS COURT SHOULD DIRECT.  SEE,
ALSO, ACT OF MARCH 3, 1887, C. 359, SEC. 4, 24 STAT. 505, 506.  28
U.S.C. 761.  THE RULES FIRST ADOPTED PROVIDED FOR THE FINDING OF THE
FACTS BY THE COURT OF CLAIMS AND DIRECTED THAT "THE FACTS SO FOUND ARE
TO BE THE ULTIMATE FACTS OR PROPOSITIONS WHICH THE EVIDENCE SHALL
ESTABLISH, IN THE NATURE OF A SPECIAL VERDICT, AND NOT THE EVIDENCE ON
WHICH THE ULTIMATE FACTS ARE FOUNDED."  RULE 1, 3 WALL.  VII.  THE
PRESENT RULE, UNDER SEC. 3(B) OF THE ACT OF FEBRUARY 13, 1925, C. 229,
43 STAT. 936, GOVERNING REVIEW UPON CERTIORARI, IS TO THE SAME EFFECT. 
RULE 41, PAR. 3.  THIS ESTABLISHED PRACTICE WAS THUS DESCRIBED IN
LUCKENBACH S.S. CO. V. UNITED STATES, 272 U.S. 533, 538, 539: 

"THIS COURT UNIFORMLY HAS REGARDED THE LEGISLATION AND RULES AS
CONFINING THE REVIEW TO QUESTIONS OF LAW SHOWN BY THE RECORD WHEN MADE
UP AS THE RULES DIRECT.  BILLS OF EXCEPTION ARE NOT RECOGNIZED IN
EITHER THE LEGISLATION OR THE RULES; NOR IS THERE OTHER PROVISION FOR
BRINGING THE EVIDENCE INTO THE RECORD OR INCLUDING THEREIN THE VARIOUS
RULINGS INVOLVED IN APPLYING TO THE EVIDENCE PRESENTED THE RULES WHICH
MARK THE LINE BETWEEN WHAT PROPERLY MAY BE CONSIDERED AND WHAT MUST BE
REJECTED.  AS LONG AGO AS MAHAN V. UNITED STATES, 14 WALL.  109, 111,
THIS COURT SAID OF THE RULES THAT THEY COULD NOT BE EXAMINED 'WITHOUT
SEEING THAT THE PURPOSE WAS TO BRING NOTHING HERE FOR REVIEW BUT
QUESTIONS OF LAW, LEAVING THE COURT OF CLAIMS TO EXERCISE THE FUNCTIONS
OF A JURY IN FINDING FACTS, EQUIVALENT TO A SPECIAL VERDICT AND WITH
LIKE EFFECT.'"  FN1 

IN A PATENT CASE IN THE COURT OF CLAIMS UNDER THE ACT OF 1910 THE
QUESTIONS OF VALIDITY AND INFRINGEMENT ARE QUESTIONS OF FACT.  WE HAVE
SAID THAT, FOR THE PURPOSES OF OUR REVIEW IN SUCH A CASE, THE FINDINGS
OF THE COURT OF CLAIMS "ARE TO BE TREATED LIKE THE VERDICT OF A JURY,
AND WE ARE NOT AT LIBERTY TO REFER TO THE EVIDENCE, ANY MORE THAN TO
THE OPINION, FOR THE PURPOSE OF EKING OUT, CONTROLLING, OR MODIFYING
THEIR SCOPE."  BROTHERS V. UNITED STATES, 250 U.S. 88, 93; STILZ V.
UNITED STATES, 269 U.S. 144, 147, 148; UNITED STATES V. ESNAULT
PELTERIE, SUPRA.  THE REQUIREMENT THAT THE COURT OF CLAIMS SHOULD FIND
THE ULTIMATE FACTS WHICH ARE CONTROLLING PLACES UPON THAT COURT THE
DUTY OF RESOLVING CONFLICTING INFERENCES AND TO DRAW FROM THE EVIDENCE
THE NECESSARY CONCLUSIONS OF FACT.  UNITED STATES V. ADAMS, 6 WALL. 
101, 112.  EVEN THOUGH THE FINDING DETERMINES A MIXED QUESTION OF LAW
AND FACT, THE FINDING IS CONCLUSIVE UNLESS THE COURT IS ABLE "TO SO
SEPARATE THE QUESTION AS TO SEE CLEARLY WHAT AND WHERE THE MISTAKE OF
LAW IS."  ROSS V. DAY, 232 U.S. 110, 117; UNITED STATES V. OMAHA
INDIANS, 253 U.S. 275, 281; STILZ V. UNITED STATES, SUPRA; UNITED
STATES V. SWIFT & CO., 270 U.S. 124, 138. 

IN THE INSTANT CASE, AS POINTED OUT IN OUR PREVIOUS OPINION, THERE
ARE 47 FINDINGS OF FACT PRECEDING THE FINDINGS OF THE ULTIMATE FACTS,
AS NOW MADE, AND BY REFERENCE THERE ARE INCLUDED 28 EXHIBITS ON 266
PAGES.  THESE REFERENCES COVER A NUMBER OF PATENTS CLAIMED TO BE IN
ANALOGOUS ARTS.  FROM THESE, THE GOVERNMENT SEEKS TO ESTABLISH THAT THE
DEVICE IN QUESTION WAS NOT PATENTABLE OVER PRIOR DISCLOSURES.  BUT THIS
IS NOT A CASE WHERE THE COURT OF CLAIMS HAS PRESENTED IN ITS FINDINGS
ALL THE EVIDENCE UPON WHICH THE ULTIMATE FACTS ARE BASED SO THAT IT
APPEARS ON THE FACE OF THE FINDINGS THAT THE JUDGMENT IS NECESSARILY
WRONG AS MATTER OF LAW.  UNITED STATES V. CLARK, 96 U.S. 37, 40.  CF.
UNITED STATES V. BERDAN FIRE-ARMS CO., 156 U.S. 552, 573; STONE V.
UNITED STATES, 164 U.S. 380, 383.  THE OPINION OF THE COURT OF CLAIMS
CONTAINS AN ELABORATE REVIEW OF THE PATENTS TO WHICH REFERENCE IS MADE,
AND IT DISCLOSES THAT THERE WAS "CONSIDERABLE CONTRADICTORY TESTIMONY"
BY THE VARIOUS EXPERTS FOR THE PLAINTIFF AND THE DEFENDANT.  THAT
TESTIMONY IS NOT HERE, AND WOULD NOT APPROPRIATELY FORM PART OF THE
RECORD BROUGHT TO THIS COURT, AS IT WAS THE DUTY OF THE COURT BELOW,
AND IS NOT OURS, TO DEAL WITH THE CONFLICTS OF STATEMENT OR INFERENCES
TO WHICH IT MIGHT GIVE RISE.  WE ARE NOT UNMINDFUL OF THE RULE THAT
WHERE, WITH ALL THE EVIDENCE BEFORE THE COURT, IT APPEARS THAT NO
SUBSTANTIAL DISPUTE OF FACT IS PRESENTED, AND THAT THE CASE MAY BE
DETERMINED BY A MERE COMPARISON OF STRUCTURES AND EXTRINSIC EVIDENCE IS
NOT NEEDED FOR PURPOSES OF EXPLANATION, OR EVALUATION OF PRIOR ART, OR
TO RESOLVE QUESTIONS OF THE APPLICATION OF DESCRIPTIONS TO SUBJECT
MATTER, THE QUESTIONS OF INVENTION AND INFRINGEMENT MAY BE DETERMINED
AS QUESTIONS OF LAW.  HEALD V. RICE, 104 U.S. 737, 749; SINGER MFG. CO.
V. CRAMER, 192 U.S. 265, 275; SANITARY REFRIGERATOR CO. V. WINTERS, 280
U.S. 30, 36.  BUT WE DO NOT THINK THAT RULE IS APPLICABLE WHERE WE ARE
UNABLE TO EXAMINE THE TESTIMONY WHICH WAS HEARD BY THE COURT BELOW AND
WE CANNOT SAY THAT IT WAS OF NO IMPORTANCE OR DETERMINE ITS VALUE IN
THE LIGHT OF THE DISPUTES REVEALED.  WE SHOULD NOT BE JUSTIFIED IN
TAKING UP THE PATENTS SET FORTH IN THE FINDINGS AND, IN THE ABSENCE OF
THE EXPLANATORY AND CONSTRUING TESTIMONY OF THE EXPERT WITNESSES WITH
RESPECT TO THE PERTINENT FACT SITUATIONS, IN ATTEMPTING TO PASS UPON
THE VARIOUS QUESTIONS, WHETHER OF A SCIENTIFIC NATURE OR OTHERWISE,
THAT ARE INVOLVED AND UPON SUCH A NECESSARILY LIMITED CONSIDERATION IN
OVERRULING THE CONCLUSIONS OF FACT REACHED BY THE COURT OF CLAIMS UPON
THE ENTIRE RECORD.  CF. BISCHOFF V. WETHERED, 9 WALL.  812, 815, 816;
ROYER V. SCHULTZ BELTING CO., 135 U.S. 319, 325; ST. PAUL PLOW WORKS V.
STARLING, 140 U.S. 184, 196, 197; COUPE V. ROYER, 155 U.S. 565, 577
580. 

WE MAY, OF COURSE, INQUIRE WHETHER THE SUBORDINATE OR CIRCUMSTANTIAL
FINDINGS MADE BY THE COURT BELOW NECESSARILY OVERRIDE ITS ULTIMATE
FINDINGS OF FACT AND SHOW THAT THE JUDGMENT IN POINT OF LAW IS NOT
SUSTAINABLE.  BUT WE HAVE NO SUCH CASE HERE.  NOR IS THE CASE LIKE THAT
OF A REVIEW BY A CIRCUIT COURT OF APPEALS OF DECISIONS OF BOARDS, SUCH
AS THE BOARD OF TAX APPEALS, WHERE THE EVIDENCE IS BEFORE THE APPELLATE
COURT AND THE QUESTION IS WHETHER THERE WAS SUBSTANTIAL EVIDENCE BEFORE
THE BOARD TO SUPPORT THE FINDINGS MADE.  CF. PHILLIPS V. COMMISSIONER,
283 U.S. 589, 600; HELVERING V. RANKIN, 295 U.S. 123, 131; HELVERING V.
TEX-PENN CO., 300 U.S. 481, 491.  WE MUST TAKE THE FINDINGS OF FACT AS
MADE BELOW.  IF, IN THE INSTANT CASE, THE SUBORDINATE FINDINGS HAD
REQUIRED A DECREE IN FAVOR OF THE GOVERNMENT THE CASE WOULD NOT HAVE
BEEN REMANDED.  UNITED STATES V. ESNAULT-PELTERIE, SUPRA, P. 206;
BOTANY MILLS V. UNITED STATES, 278 U.S. 282, 290; UNITED STATES V.
WELLS, 283 U.S. 102, 120.  AND IT CANNOT BE SAID THAT THE ULTIMATE
FINDINGS, NOW MADE, AS TO VALIDITY AND INFRINGEMENT ARE NECESSARILY
OVERBORNE BY THE SUBORDINATE FINDINGS. 

THE ARGUMENT THAT THE GOVERNMENT IS PRECLUDED FROM OBTAINING THE SORT
OF REVIEW WHICH IS PERMISSIBLE IN THIS COURT, WHEN THERE IS A CONFLICT
BETWEEN CIRCUIT COURTS OF APPEALS AS TO VALIDITY AND INFRINGEMENT OF
PATENTS, AND THE QUESTIONS ARE SUBMITTED UPON THE EVIDENCE TAKEN IN THE
DISTRICT COURT, IS UNAVAILING, FOR THE RESULT IS DUE TO THE PROCEDURE
WHICH HAS BEEN ESTABLISHED BY THE CONGRESS FOR THE DETERMINATION OF
CLAIMS AGAINST THE UNITED STATES. 

THE JUDGMENT IS AFFIRMED. 

FN1 SEE, ALSO, UNITED STATES V. SMITH, 94 U.S. 214; STONE V. UNITED
STATES, 164 U.S. 380, 383; COLLIER V. UNITED STATES, 173 U.S. 79;
CROCKER V. UNITED STATES, 240 U.S. 74; NILES BEMENT POND CO. V. UNITED
STATES, 281 U.S. 357, 360. 

MR. JUSTICE BLACK IS OF THE OPINION THAT THE FINDINGS DO NOT SHOW
INFRINGEMENT OF ANY VALID PATENT; OR THAT APPELLEE INVENTED EITHER A
VERTICAL LEVER OR A UNIVERSAL JOINT OR THE COMBINED USE OF A VERTICAL
LEVER AND A UNIVERSAL JOINT TO CONTROL AIR PLANES OR MACHINERY; HE
BELIEVES THE FINDINGS SHOW THAT SUCH MEANS OF CONTROL WERE IN GENERAL
USE LONG BEFORE APPELLEE - FIVE YEARS AFTER HIS ORIGINAL APPLICATION
FOR A PATENT - FILED AN AMENDMENT ASSERTING THIS CLAIM.  FOR THESE
REASONS HE BELIEVES THE JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :





LONERGAN V. UNITED STATES, 303 U.S. 33 


NO. 121.  ARGUED JANUARY 10, 1938.  - DECIDED JANUARY 31, 1938.  - 88
F.(2D) 591, REVERSED. 


AN APPELLANT TO THE CIRCUIT COURT OF APPEALS HAS A RIGHT TO RELY UPON
THE RULES OF THAT COURT, PROPERLY CONSTRUED, WHICH GOVERN HIS
ASSIGNMENTS OF ERROR, AND CAN NOT BE PREJUDICED BY ADDITIONS TO THE
REQUIREMENTS MADE BY AMENDMENT OF THE RULES BETWEEN THE APPEAL AND THE
DECISION OF THE CASE.  P. 35. 

RULE 11 OF THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT, BEFORE
ITS RECENT AMENDMENT, PROVIDED:  "WHEN THE ERROR ALLEGED IS TO THE
ADMISSION OR THE REJECTION OF EVIDENCE THE ASSIGNMENT OF ERRORS SHALL
QUOTE THE FULL SUBSTANCE OF THE EVIDENCE ADMITTED OR REJECTED."  HELD
THAT IT WAS SATISFIED BY SOME, IF NOT ALL, OF 28 ASSIGNMENTS WHICH THAT
COURT REJECTED IN THIS CASE. 

LONERGAN V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 302 U.S. 663, TO REVIEW AFFIRMANCE OF A CONVICTION IN A
CRIMINAL CASE. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

IN THE DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON, THE PETITIONER
WAS CONVICTED OF VIOLATING SEC. 215 CRIMINAL CODE; 18 U.S.C. 338, BY
USING THE MAILS FOR FRAUDULENT PURPOSES.  HE APPEALED TO THE CIRCUIT
COURT OF APPEALS, NINTH CIRCUIT, AND FILED - AUGUST 14, 1936 - FORTY
ASSIGNMENTS OF ERROR.  THE JUDGMENT OF CONVICTION WAS AFFIRMED MARCH 6,
1937, UPON AN OPINION, 88 F.(2D) 591, WHICH, AMONG OTHER THINGS, STATES
- 

"TWENTY-EIGHT ASSIGNMENTS (NUMBERED 5, 9 TO 25, INCLUSIVE, AND 31 TO
40, INCLUSIVE) ARE TO THE ADMISSION OF AND REFUSAL TO STRIKE OUT
EVIDENCE.  THE ASSIGNMENTS DO NOT INDICATE THAT ANY OF THIS EVIDENCE
WAS OBJECTED TO IN THE TRIAL COURT.  THEY DO NOT STATE WHAT OBJECTIONS,
IF ANY, WERE MADE, NOR THE GROUNDS THEREOF, NOR THE GROUNDS, IF ANY, ON
WHICH APPELLANT MOVED TO STRIKE OUT THE EVIDENCE.  SUCH ASSIGNMENTS DO
NOT CONFORM TO OUR RULE 11 AND WILL NOT BE CONSIDERED.  CODY V. UNITED
STATES (C.C.A. 9), 73 F.(2D) 180, 184; GOLDSTEIN V. UNITED STATES
(C.C.A. 9), 73 F.(2D) 804, 806." 

THIS RULING WE THINK WAS ERROR.  THROUGH WRONGFUL INTERPRETATION AND
APPLICATION OF THE RULE PETITIONER WAS DENIED A PROPER HEARING. 

AT THE DATE OF THE APPEAL THE PERTINENT PORTION OF RULE 11 READ AS
FOLLOWS - "WHEN THE ERROR ALLEGED IS TO THE ADMISSION OR THE REJECTION
OF EVIDENCE THE ASSIGNMENT OF ERRORS SHALL QUOTE THE FULL SUBSTANCE OF
THE EVIDENCE ADMITTED OR REJECTED." 

CONCERNING THIS PROVISION, THE OPINION IN GOLDSTEIN V. UNITED STATES,
(1934) 73 F.(2D) 804, 806, DECLARED - "THE ASSIGNMENT OF ERROR MUST NOT
ONLY QUOTE 'THE FULL SUBSTANCE OF THE EVIDENCE ADMITTED OR REJECTED,'
BUT IT MUST ALSO STATE THE ERROR ASSERTED AND INTENDED TO BE URGED. 
THIS REQUIRES THAT THE OBJECTION AND RULING OF THE COURT UPON THE
OBJECTION AND THE EXCEPTION TO THE RULING BE INCORPORATED IN THE
ASSIGNMENT OF ERROR."  ADHERING TO THIS INTERPRETATION, THE COURT
PERSISTENTLY REFUSED TO CONSIDER ASSIGNMENTS DEEMED NOT IN CONFORMITY
THEREWITH. 

BETWEEN THE APPEAL AND ANNOUNCEMENT OF THE OPINION UNDER
CONSIDERATION, RULE 11 WAS AMENDED SO AS TO PROVIDE - "WHEN THE ERROR
ALLEGED IS TO THE ADMISSION OR REJECTION OF EVIDENCE THE ASSIGNMENT OF
ERROR SHALL QUOTE THE GROUND URGED AT THE TRIAL FOR THE OBJECTION AND
THE EXCEPTION TAKEN AND THE FULL SUBSTANCE OF THE EVIDENCE ADMITTED OR
REJECTED." 

MANIFESTLY PETITIONER HAD THE RIGHT TO RELY UPON THE RULE, PROPERLY
CONSTRUED, AS IT STOOD AT THE TIME OF HIS APPEAL - BEFORE THE
AMENDMENT.  AND IF ANALYSIS OF ONE OF THE REJECTED ASSIGNMENTS
DISCLOSES SUBSTANTIAL COMPLIANCE, THE CAUSE MUST GO BACK FOR FURTHER
CONSIDERATION OF THE RECORD. 

LITIGANTS MAY NOT BE DEPRIVED OF A HEARING UPON THEIR POINTS BY
WRONGFUL CONSTRUCTION OF RULES NOR BY THEIR ARBITRARY APPLICATION.  AN
UNWARRANTED CONSTRUCTION HAS BEEN GIVEN TO THE LANGUAGE OF RULE 11;
PROPERLY INTERPRETED, IT DID NOT REQUIRE PETITIONER TO DO ALL THE
THINGS SPECIFIED BY THE AMENDMENT. 

THE SUBSTANCE OF ASSIGNMENT NO. XVI FOLLOWS - 

"THE COURT ERRED IN ADMITTING IN EVIDENCE, AND DENYING DEFENDANT'S
MOTION TO STRIKE, TO WHICH EXCEPTIONS WERE TAKEN AND ALLOWED,
PLAINTIFF'S EXHIBIT NO. 75, BEING A LETTER ON THE LETTERHEAD OF BATTLE,
HULBERT, HELSELL & BETTENS, AS FOLLOWS:"  (THIS LETTER - A LONG ONE -
DATED AUGUST 17, 1934, ADDRESSED TO PETITIONER AND SIGNED BATTLE,
HULBERT, HELSELL & BETTENS, BY JOSEPH E. GANDY, IS SET OUT IN FULL.  IT
STATES, AMONG OTHER THINGS, THAT CERTAIN "ALLEGATIONS AND PERSUASIONS"
MADE BY THE PETITIONER TO ONE ATWOOD "WERE OBVIOUSLY FRAUDULENTLY MADE"
AND THAT ONE "ATWOOD WAS DEFRAUDED BY THE MISREPRESENTATIONS," ETC.) 

"THE TESTIMONY IN SUPPORT OF ITS ADMISSION GIVEN BY WITNESSES A.M.
ATWOOD AND JOSEPH GANDY, IS SUBSTANTIALLY AS FOLLOWS."  (HERE FOLLOWS A
RESUME OF THE TESTIMONY GIVEN BY THESE WITNESSES.) 

"THE REASONS SUCH EXHIBIT SHOULD NOT HAVE BEEN ADMITTED, AND THAT IT
SHOULD HAVE BEEN STRICKEN, ARE AS FOLLOWS: 

"1.  IT WAS HEARSAY EVIDENCE, CONTAINED CONCLUSIONS OF THIRD PARTIES,
AND HAPPENED SUBSEQUENT TO THE TERMINATION OF THE ALLEGED PLAN. 

"2.  IT WAS A SELF SERVING STATEMENT OF A THIRD PARTY MAKING THE
STATEMENTS THEREIN CONTAINED. 

"3.  IT WAS HIGHLY INCOMPETENT, IRRELEVANT AND IMMATERIAL, AND IN ITS
NATURE HIGHLY PREJUDICIAL TO THE DEFENDANT.  ITS ADMISSION WAS NOT
NECESSARY TO CLARIFY 76-A AND IT WAS NOT RELATED TO 76-B." 

WE THINK THIS ASSIGNMENT ADEQUATELY MET THE APPLICABLE REQUIREMENTS
OF RULE 11.  CLEARLY, IT QUOTED THE FULL SUBSTANCE OF THE EVIDENCE
ADMITTED AND WAS DEFINITE ENOUGH TO ENABLE BOTH COURT AND OPPOSING
COUNSEL READILY TO PERCEIVE THE POINT INTENDED TO BE RELIED ON.
SEABOARD AIR LINE RY. CO. V. WATSON, 287 U.S. 86, 91. 

OTHER ASSIGNMENTS ALSO SEEM SUFFICIENTLY DEFINITE AND FORMAL TO
DEMAND CONSIDERATION.  WE DO NOT PASS UPON THE MERITS OF ANY ASSIGNMENT
AND DECIDE ONLY THAT SOME, IF NOT ALL, OF THEM WERE IMPROPERLY
REJECTED. 

THE CHALLENGED JUDGMENT MUST BE REVERSED.  THE CAUSE WILL BE REMANDED
TO THE CIRCUIT COURT OF APPEALS FOR FURTHER PROCEEDINGS IN HARMONY WITH
THIS OPINION.  REVERSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :











MUNRO V. UNITED STATES, 303 U.S. 36 


NO. 218.  ARGUED JANUARY 6, 7, 1938.  - DECIDED JANUARY 31, 1938.  - 89
F.(2D) 614, AFFIRMED. 


1.  A SUIT IN THE DISTRICT COURT TO RECOVER ON A WAR RISK INSURANCE
POLICY, THE PROCEDURE IN WHICH IS THE SAME AS THAT PROVIDED IN SECS. 5
AND 6 OF THE TUCKER ACT, WAS NOT BROUGHT IN TIME TO TOLL THE STATUTE OF
LIMITATIONS WHERE THE COMPLAINT WAS NOT FILED WITH THE CLERK OF THE
COURT BEFORE THE PERIOD OF LIMITATIONS EXPIRED.  P. 39. 

TO COMMENCE THE SUIT IN ACCORDANCE WITH SECS. 5 AND 6 OF THE TUCKER
ACT, IT WAS NOT ENOUGH TO SERVE A COPY OF THE SUMMONS UPON THE DISTRICT
ATTORNEY AND MAIL ANOTHER TO THE ATTORNEY GENERAL. 

2.  SUITS AGAINST THE UNITED STATES CAN BE MAINTAINED ONLY BY
PERMISSION, IN THE MANNER PRESCRIBED AND SUBJECT TO THE RESTRICTIONS
IMPOSED.  THE CONFORMITY ACT CAN NOT BE RELIED UPON TO CHANGE ANY OF
THESE.  P. 41. 

3.  A DISTRICT ATTORNEY HAS NO POWER TO WAIVE CONDITIONS OR
LIMITATIONS IMPOSED BY STATUTE IN RESPECT OF SUITS AGAINST THE UNITED
STATES.  ID. 

MUNRO V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 668, TO REVIEW THE REVERSAL OF A JUDGMENT
AGAINST THE UNITED STATES IN A SUIT ON A WAR RISK INSURANCE CLAIM. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS GRANTED BECAUSE OF CONFLICTING VIEWS IN THE LOWER
COURTS. 

CLAIMING TO BE PERMANENTLY AND TOTALLY DISABLED, PETITIONER
INSTITUTED AN ACTION IN THE UNITED STATES DISTRICT COURT, WESTERN
DISTRICT OF NEW YORK, TO RECOVER UNDER A WAR RISK INSURANCE POLICY.  HE
WAS HONORABLY DISCHARGED IN 1919. 

BEFORE THE CAUSE CAME ON FOR TRIAL RESPONDENT MOVED FOR DISMISSAL
BECAUSE THE ACTION WAS NOT BROUGHT WITHIN THE TIME PRESCRIBED BY SEC.
19, WORLD WAR VETERANS ACT 1924, AS AMENDED BY ACT JULY 3, 1930, 46
STAT. 992, COPIED IN THE MARGIN.  FN1  THIS MOTION WAS OVERRULED. 
WHETHER PROPERLY SO, IS THE MATTER FOR OUR CONSIDERATION. 

BY CONCESSION IT WAS NECESSARY TO BRING SUIT NOT LATER THAN JULY 1,
1933. 

MARCH 16, 1933, A PRAECIPE FOR ISSUANCE OF SUMMONS WAS FILED WITH THE
CLERK OF THE DISTRICT COURT; ON THE SAME DAY COPY OF THE SUMMONS WAS
SERVED UPON THE UNITED STATES ATTORNEY IN BUFFALO AND ANOTHER MAILED TO
THE ATTORNEY GENERAL AT WASHINGTON; NO COPY OF THE COMPLAINT WAS SERVED
UPON THE UNITED STATES ATTORNEY UNTIL JULY 26, 1933; THE ORIGINAL
COMPLAINT WAS NOT FILED WITH THE CLERK UNTIL APRIL 23, 1936. 

FEBRUARY 15, 1934, THE UNITED STATES ATTORNEY FILED AN ANSWER WITHOUT
QUESTIONING THE TIMELINESS OF THE SUIT; A YEAR LATER HE MOVED TO
DISMISS.  THE CAUSE WAS HEARD IN APRIL, 1936; JUDGMENT WENT FOR THE
ASSURED JULY 29, 1936. 

IN FOLLOWING THE ABOVE DESCRIBED PROCEDURE PETITIONER'S COUNSEL ACTED
UPON INFORMATION GIVEN BY THE ASSISTANT UNITED STATES ATTORNEY, WHO
DECLARED THAT SERVICE OF SUMMONS WOULD SUFFICE TO GIVE JURISDICTION AND
TOLL THE STATUTE; THAT COMPLAINT MIGHT BE SERVED THEREAFTER. 

TWO POINTS ARE PRESENTED.  DID PROCURING THE SUMMONS, SERVING ONE
COPY ON THE UNITED STATES ATTORNEY AND SENDING ANOTHER TO THE ATTORNEY
GENERAL BEGIN THE SUIT WITHIN THE REQUIREMENT OF THE STATUTE?  IF NOT,
DO THE CIRCUMSTANCES ESTABLISH WAIVER OF THE DEFENSE THAT SUIT WAS OUT
OF TIME. 

BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT IN WHICH
THE CLAIMANT RESIDES.  ALSO DIRECTS, "THE PROCEDURE IN SUCH SUITS SHALL
BE THE SAME AS THAT PROVIDED IN SECTIONS 5 AND 6" (SECS. 762 AND 763,
TITLE 28, U.S.C.)  OF THE TUCKER ACT OF MARCH 3, 1887, "AND SECTION 10
THEREOF (SEC. 765, TITLE 28, U.S.C.)  INSOFAR AS APPLICABLE."  SEC. 5
OF THE TUCKER ACT PROVIDES THAT THE PLAINTIFF "SHALL FILE A PETITION"
WITH THE CLERK OF THE COURT, CONTAINING A SUCCINCT STATEMENT OF THE
FACTS UPON WHICH THE CLAIM IS BASED; SEC. 6 THAT HE SHALL CAUSE ONE
COPY OF THIS TO BE SERVED UPON THE DISTRICT ATTORNEY AND MAIL ANOTHER
TO THE ATTORNEY GENERAL.  THESE REQUIREMENTS WERE NOT COMPLIED WITH
PRIOR TO JULY 1, 1933. 

THE CIRCUIT COURT OF APPEALS HELD THE SUIT WAS NOT BROUGHT IN TIME TO
TOLL THE STATUTE, AND WITH THIS CONCLUSION WE AGREE.  THE OPINION THERE
ADEQUATELY REFERS TO THE SUNDRY OPINIONS WHICH HAVE CONSIDERED THE
SUBJECT, DISCLOSES THE CLAIMS OF THE PARTIES AND REASONS FOR THE
JUDGMENT. 

AFFIRMATION HERE, UPON AUTHORITY OF UNITED STATES V. LARKIN, 208 U.S.
333, OF THE DISTRICT COURT'S JUDGMENT IN UNITED STATES V. MILL CREEK,
ETC., AND TWO SIMILAR CAUSES (NOS. 103, 104, 105, OCT. TERM 1919), 251
U.S. 539, CANNOT PROPERLY BE REGARDED AS AUTHORITY FOR A VIEW CONTRARY
TO THE ONE WE NOW APPROVE.  THOSE CAUSES CAME UP UNDER A STATUTE WHICH
PERMITTED DIRECT APPEALS FROM DISTRICT COURTS SOLELY UPON QUESTIONS OF
JURISDICTION.  WE DETERMINED ONLY THAT THE DISTRICT COURT HAD POWER TO
HEAR AND RULE UPON THE QUESTIONS PRESENTED TO IT - AMONG THEM WHETHER
THE SUITS WERE BROUGHT IN TIME.  THE MERITS OF THE CONTROVERSY -
WHETHER IN REALITY THE SUITS WERE IN TIME - WE DID NOT CONSIDER. 
EXAMINATION OF THE OPINION IN LARKIN'S CASE AND THE STATUTE THEN IN
FORCE WILL MAKE THIS CLEAR ENOUGH. 

SUITS AGAINST THE UNITED STATES CAN BE MAINTAINED ONLY BY PERMISSION,
IN THE MANNER PRESCRIBED AND SUBJECT TO THE RESTRICTIONS IMPOSED.  REID
V. UNITED STATES, 211 U.S. 529, 538.  THE CONFORMITY ACT CANNOT BE
RELIED UPON TO CHANGE ANY OF THESE. 

THE DISTRICT ATTORNEY HAD NO POWER TO WAIVE CONDITIONS OR LIMITATIONS
IMPOSED BY STATUTE IN RESPECT OF SUITS AGAINST THE UNITED STATES.  FINN
V. UNITED STATES, 123 U.S. 227, 233.  JUDGMENT AGAINST THEM IS NOT
PERMISSIBLE IF FIRST SOUGHT AFTER EXPIRATION OF THE TIME ALLOWED. 
AFFIRMED. 

FN1 ACT OF JULY 3, 1930, C. 849, 46 STAT. 992. 

"SEC. 19.  IN THE EVENT OF DISAGREEMENT AS TO CLAIM, INCLUDING CLAIM
FOR REFUND OF PREMIUMS, UNDER A CONTRACT OF INSURANCE BETWEEN THE
BUREAU AND ANY PERSON OR PERSONS CLAIMING THEREUNDER AN ACTION ON THE
CLAIM MAY BE BROUGHT AGAINST THE UNITED STATES EITHER IN THE SUPREME
COURT OF THE DISTRICT OF COLUMBIA OR IN THE DISTRICT COURT OF THE
UNITED STATES IN AND FOR THE DISTRICT IN WHICH SUCH PERSONS OR ANY ONE
OF THEM RESIDES, AND JURISDICTION IS HEREBY CONFERRED UPON SUCH COURTS
TO HEAR AND DETERMINE ALL SUCH CONTROVERSIES.  THE PROCEDURE IN SUCH
SUITS SHALL BE THE SAME AS THAT PROVIDED IN SECTIONS 5 AND 6 OF THE ACT
ENTITLED 'AN ACT TO PROVIDE FOR THE BRINGING OF SUITS AGAINST THE
GOVERNMENT OF THE UNITED STATES,' APPROVED MARCH 3, 1887, AND SECTION
10 THEREOF SO FAR AS APPLICABLE.... 

"NO SUIT ON YEARLY RENEWABLE TERM INSURANCE SHALL BE ALLOWED UNDER
THIS SECTION UNLESS THE SAME SHALL HAVE BEEN BROUGHT WITHIN SIX YEARS
AFTER THE RIGHT ACCRUED FOR WHICH THE CLAIM IS MADE OR WITHIN ONE YEAR
AFTER THE DATE OF APPROVAL OF THIS AMENDATORY ACT, WHICHEVER IS THE
LATER DATE, AND NO SUIT ON UNITED STATES GOVERNMENT LIFE (CONVERTED)
INSURANCE SHALL BE ALLOWED UNDER THIS SECTION UNLESS THE SAME SHALL
HAVE BEEN BROUGHT WITHIN SIX YEARS AFTER THE RIGHT ACCRUED FOR WHICH
THE CLAIM IS MADE; PROVIDED, THAT FOR THE PURPOSES OF THIS SECTION IT
SHALL BE DEEMED THAT THE RIGHT ACCRUED ON THE HAPPENING OF THE
CONTINGENCY ON WHICH THE CLAIM IS FOUNDED:  PROVIDED FURTHER, THAT THIS
LIMITATION IS SUSPENDED FOR THE PERIOD ELAPSING BETWEEN THE FILING IN
THE BUREAU OF THE CLAIM SUED UPON AND THE DENIAL OF SAID CLAIM BY THE
DIRECTOR...." 

TUCKER ACT, MARCH 3, 1887, C. 359, 24 STAT. 506. 

SEC. 5; U.S.C., TITLE 28, SEC. 762. 

"PETITION IN SUIT AGAINST UNITED STATES.  THE PLAINTIFF IN ANY SUIT
BROUGHT UNDER THE PROVISIONS OF SECTION 41, PARAGRAPH 20, OF THIS TITLE
SHALL FILE A PETITION, DULY VERIFIED WITH THE CLERK OF THE RESPECTIVE
COURT HAVING JURISDICTION OF THE CASE, AND IN THE DISTRICT WHERE THE
PLAINTIFF RESIDES.  SUCH PETITION SHALL SET FORTH THE FULL NAME AND
RESIDENCE OF THE PLAINTIFF, THE NATURE OF HIS CLAIM, AND A SUCCINCT
STATEMENT OF THE FACTS UPON WHICH THE CLAIM IS BASED, THE MONEY OR ANY
OTHER THING CLAIMED, OR THE DAMAGES SOUGHT TO BE RECOVERED AND PRAYING
THE COURT FOR A JUDGMENT OR DECREE UPON THE FACTS AND LAW." 

SEC. 6; U.S.C., TITLE 28, SEC. 763. 

"SERVICE; APPEARANCE BY DISTRICT ATTORNEY.  THE PLAINTIFF SHALL CAUSE
A COPY OF HIS PETITION FILED UNDER SECTION 762 OF THIS TITLE, TO BE
SERVED UPON THE DISTRICT ATTORNEY OF THE UNITED STATES IN THE DISTRICT
WHEREIN SUIT IS BROUGHT, AND SHALL MAIL A COPY OF THE SAME, BY
REGISTERED LETTER, TO THE ATTORNEY GENERAL OF THE UNITED STATES, AND
SHALL THEREUPON CAUSE TO BE FILED WITH THE CLERK OF THE COURT WHEREIN
SUIT IS INSTITUTED AN AFFIDAVIT OF SUCH SERVICE AND THE MAILING OF SUCH
LETTER.  IT SHALL BE THE DUTY OF THE DISTRICT ATTORNEY UPON WHOM
SERVICE OF PETITION IS MADE AS AFORESAID TO APPEAR AND DEFEND THE
INTERESTS OF THE GOVERNMENT IN THE SUIT, AND WITHIN SIXTY DAYS AFTER
THE SERVICE OF PETITION UPON HIM, UNLESS THE TIME SHOULD BE EXTENDED BY
ORDER OF THE COURT MADE IN THE CASE TO FILE A PLEA, ANSWER, OR DEMURRER
ON THE PART OF THE GOVERNMENT,  ..." 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 
..END :






MYERS V. BETHLEHEM CORP., 303 U.S. 41 


NO. 181.  ARGUED JANUARY 5, 1938.  - DECIDED JANUARY 31, 1938.  - 88
F.(2D) 154 -  89 ID. 1000, REVERSED. 


1.  THE NATIONAL LABOR RELATIONS BOARD, UPON A CHARGE MADE TO IT,
ISSUED A COMPLAINT AGAINST A CORPORATION ENGAGED, AT THE PLANT
INVOLVED, IN THE BUILDING AND SALE OF SHIPS, BOATS AND MARINE
EQUIPMENT.  THE COMPLAINT ALLEGED THAT THE CORPORATION DOMINATED AND
INTERFERED, IN A MANNER DESCRIBED, WITH A LABOR ORGANIZATION OF ITS
EMPLOYEES, AND WAS THUS ENGAGED IN UNFAIR LABOR PRACTICES AFFECTING
COMMERCE WITHIN THE MEANING OF THE NATIONAL LABOR RELATIONS ACT OF JULY
5, 1935.  THE CORPORATION WAS GIVEN NOTICE OF A HEARING TO BE HAD UPON
THE COMPLAINT.  HELD: 

(1)  THAT THE DISTRICT COURT HAD NO JURISDICTION OF A SUIT BY THE
CORPORATION TO ENJOIN THE BOARD FROM HOLDING THE HEARING.  P. 47. 

THE BILL ALLEGED THAT THE BUSINESS OF THE COMPANY AT THE PLANT
AFFECTED, AND THE SALE OF ITS PRODUCTS, WERE NOT IN INTERSTATE OR
FOREIGN COMMERCE; THAT THE HOLDING OF THE HEARINGS WOULD BE FUTILE AND
WOULD IRREPARABLY DAMAGE THE COMPANY, BY EXPENSE AND INCONVENIENCE,
IMPAIRMENT OF THE GOOD WILL AND HARMONIOUS RELATIONS EXISTING BETWEEN
IT AND ITS EMPLOYEES, AND LOWERED EFFICIENCY OF ITS OPERATIONS. 

(2)  THAT THE DISTRICT COURT HAD NO JURISDICTION OF A SUIT BY
EMPLOYEES OF THE CORPORATION WHO WERE OFFICERS OF A LABOR ORGANIZATION
AT THE PLANT, TO ENJOIN THE BOARD FROM HOLDING THE HEARING, - THE BILL
IN THIS CASE ALLEGING FURTHER THAT THE EMPLOYEES ARE SATISFIED WITH
THEIR EXISTING CONTRACTS OF EMPLOYMENT AND DESIRE TO RETAIN THE
EXISTING PLAN OF REPRESENTATION WITHOUT CHANGE; THAT THE HOLDING OF THE
PROPOSED HEARING WILL DISCREDIT THE PLAN AND DESTROY ITS USEFULNESS TO
THE EMPLOYEES; THAT THEY WILL BE DEPRIVED OF THEIR RIGHT TO NEGOTIATE
BY THE METHOD OF THEIR CHOICE, THE VALUE OF WHICH HAS BEEN PROVED BY
YEARS OF OPERATION; THAT ALTERATION OF THE PLAN WILL CAUSE
DISSATISFACTION AMONG THE EMPLOYEES; THAT OPERATION OF PLANT WILL BE
DISRUPTED BY LABOR DISTURBANCES; THAT EMPLOYMENT WILL BE INTERRUPTED;
AND THAT THE DAMAGE TO THE EMPLOYEES WILL BE IRREPARABLE.  P. 53. 

2.  IN THE NATIONAL LABOR RELATIONS ACT, CONGRESS PROVIDED FOR
APPROPRIATE PROCEDURE BEFORE THE LABOR BOARD AND AN ADEQUATE
OPPORTUNITY, THROUGH REVIEW BY THE CIRCUIT COURT OF APPEALS, TO SECURE
JUDICIAL PROTECTION AGAINST POSSIBLE ILLEGAL ACTION BY THE BOARD; AND
THE GRANT TO THE BOARD AND THE CIRCUIT COURT OF APPEALS OF EXCLUSIVE
JURISDICTION "TO PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR LABOR
PRACTICE AFFECTING COMMERCE" IS CONSTITUTIONAL.  P. 48. 

3.  THE CONCLUSION THAT THE DISTRICT COURT IS WITHOUT JURISDICTION TO
ENJOIN THE HOLDING OF A HEARING BY THE LABOR BOARD, EVEN THOUGH IT BE
CLAIMED THAT INTERSTATE OR FOREIGN COMMERCE IS NOT INVOLVED AND THAT
THE HOLDING OF A HEARING WOULD CAUSE IRREPARABLE INJURY, DOES NOT DENY
ANY RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION.  P. 50. 

4.  THE RULE REQUIRING EXHAUSTION OF THE ADMINISTRATIVE REMEDY CAN
NOT BE CIRCUMVENTED BY A CLAIM THAT THE CHARGE ON WHICH THE COMPLAINT
RESTS IS GROUNDLESS AND THAT THE MERE HOLDING OF THE PRESCRIBED
ADMINISTRATIVE HEARING WOULD RESULT IN IRREPARABLE DAMAGE.  P. 51. 

5.  THE GENERAL RULE THAT THE DECREE OF A DISTRICT COURT GRANTING OR
DENYING A PRELIMINARY INJUNCTION WILL NOT BE DISTURBED ON APPEAL, HAS
NO APPLICATION WHERE THERE IS AN INSUPERABLE OBJECTION IN POINT OF
JURISDICTION TO THE MAINTENANCE OF THE SUIT AND WHERE IT CLEARLY
APPEARS THAT THE DECREE WAS THE RESULT OF AN IMPROVIDENT EXERCISE OF
JUDICIAL POWER.  IN SUCH CASE, DISMISSAL OF THE BILL SHOULD BE
DIRECTED.  P. 52. 

MYERS ET AL. V. BETHLEHEM SHIPBUILDING CORP.* 

*TOGETHER WITH NO. 182, MYERS ET AL. V. MACKENZIE ET AL., ALSO ON
WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 302 U.S. 667, TO REVIEW DECREES AFFIRMING DECREES OF THE
DISTRICT COURT IN TWO CASES, 15 F.SUPP.  915, HEARD TOGETHER BELOW. 
THE DECREES GRANTED PRELIMINARY INJUNCTIONS RESTRAINING THE HOLDING OF
A HEARING BY THE NATIONAL LABOR RELATIONS BOARD. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER A FEDERAL DISTRICT COURT HAS
EQUITY JURISDICTION TO ENJOIN THE NATIONAL LABOR RELATIONS BOARD FROM
HOLDING A HEARING UPON A COMPLAINT FILED BY IT AGAINST AN EMPLOYER
ALLEGED TO BE ENGAGED IN UNFAIR LABOR PRACTICES PROHIBITED BY NATIONAL
LABOR RELATIONS ACT, JULY 5, 1935, C. 372, 49 STAT. 449.  THE CIRCUIT
COURT OF APPEALS FOR THE FIRST CIRCUIT HELD IN THESE CASES THAT THE
DISTRICT COURT POSSESSES SUCH JURISDICTION; AND GRANTED PRELIMINARY
INJUNCTIONS.  EVERY OTHER CIRCUIT COURT OF APPEALS IN WHICH THE
QUESTION HAS ARISEN HAS HELD THE CONTRARY.  FN1  BECAUSE OF THE
IMPORTANCE OF THE QUESTIONS PRESENTED, THE CONFLICT IN THE LOWER COURTS
AND ALLEGED CONFLICT WITH OUR OWN DECISIONS, WE GRANTED THESE WRITS OF
CERTIORARI. 

THE DECLARED PURPOSE OF THE NATIONAL LABOR RELATIONS ACT IS TO
DIMINISH THE CAUSES OF LABOR DISPUTES BURDENING AND OBSTRUCTING
INTERSTATE AND FOREIGN COMMERCE; AND ITS PROVISIONS ARE APPLICABLE ONLY
TO SUCH COMMERCE.  IN ORDER TO PROTECT IT THE ACT SEEKS TO PROMOTE
COLLECTIVE BARGAINING; CONFERS UPON EMPLOYEES ENGAGED IN SUCH COMMERCE
THE RIGHT TO FORM, AND JOIN IN, LABOR ORGANIZATIONS; DEFINES ACTS OF AN
EMPLOYER WHICH SHALL BE DEEMED UNFAIR LABOR PRACTICE; AND CONFERS UPON
THE BOARD CERTAIN LIMITED POWERS WITH A VIEW TO PREVENTING SUCH
PRACTICES.  IF A CHARGE IS MADE TO THE BOARD THAT A PERSON "HAS ENGAGED
IN OR IS ENGAGING IN ANY  ...  UNFAIR LABOR PRACTICE," AND IT APPEARS
THAT A PROCEEDING IN RESPECT THERETO SHOULD BE INSTITUTED, A COMPLAINT
STATING THE CHARGE IS TO BE FILED, AND A HEARING IS TO BE HELD THEREON
UPON NOTICE TO THE PERSON COMPLAINED OF. 

THE INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA,
LOCAL NO. 5, MADE TO THE BOARD A CHARGE THAT THE BETHLEHEM SHIPBUILDING
CORPORATION, LTD.,  FN2 WAS ENGAGING IN UNFAIR LABOR PRACTICES AT ITS
PLANT IN QUINCY, MASSACHUSETTS, FOR THE PRODUCTION, SALE AND
DISTRIBUTION OF BOATS, SHIPS, AND MARINE EQUIPMENT.  UPON ON THAT
CHARGE THE BOARD FILED, ON APRIL 13, 1936, A COMPLAINT WHICH ALLEGED,
AMONG OTHER THINGS, THAT THE COMPANY DOMINATES AND INTERFERES IN THE
MANNER DESCRIBED "WITH A LABOR ORGANIZATION KNOWN AS PLAN OF
REPRESENTATION OF EMPLOYEES IN PLANTS OF THE BETHLEHEM SHIPBUILDING
CORPORATION, LTD."; THAT SUCH ACTION LEADS TO STRIKES INTERFERING WITH
INTERSTATE COMMERCE; AND THAT "THE AFORESAID ACTS OF RESPONDENT
CONSTITUTE UNFAIR LABOR PRACTICES AFFECTING COMMERCE, WITHIN THE
MEANING OF SECTION 8, SUBDIVISIONS (1) AND (2) AND SECTION 2,
SUBDIVISIONS (6) AND (7) OF SAID (NATIONAL LABOR RELATIONS) ACT." 

THE COMPLAINT ALLEGED, SPECIFICALLY: 

"THE RESPONDENT IN THE COURSE AND CONDUCT OF ITS BUSINESS CAUSES AND
HAS CONTINUOUSLY CAUSED LARGE QUANTITIES OF THE RAW MATERIALS USED IN
THE PRODUCTION OF ITS BOATS, SHIPS AND MARINE EQUIPMENT TO BE PURCHASED
AND TRANSPORTED IN INTERSTATE COMMERCE FROM AND THROUGH STATES OF THE
UNITED STATES OTHER THAN THE STATE OF MASSACHUSETTS TO THE FORE RIVER
PLANT IN THE STATE OF MASSACHUSETTS, AND CAUSES AND HAS CONTINUOUSLY
CAUSED THE BOATS, SHIPS AND MARINE EQUIPMENT PRODUCED BY IT TO BE SOLD
AND TRANSPORTED IN INTERSTATE COMMERCE FROM THE FORE RIVER PLANT IN THE
STATE OF MASSACHUSETTS TO, INTO AND THROUGH STATES OF THE UNITED STATES
OTHER THAN THE STATE OF MASSACHUSETTS, ALL OF THE AFORESAID
CONSTITUTING A CONTINUOUS FLOW OF TRADE, TRAFFIC AND COMMERCE AMONG THE
SEVERAL STATES." 

THE BOARD DULY NOTIFIED THE CORPORATION THAT A HEARING ON THE
COMPLAINT WOULD BE HELD ON APRIL 27, 1936, AT BOSTON, MASSACHUSETTS, IN
ACCORDANCE WITH RULES AND REGULATIONS OF THE BOARD, A COPY OF WHICH WAS
ANNEXED TO THE NOTICE; AND THAT THE CORPORATION "WILL HAVE THE RIGHT TO
APPEAR, IN PERSON OR OTHERWISE, AND GIVE TESTIMONY." 

ON THAT DAY THE CORPORATION FILED, IN THE FEDERAL COURT FOR
MASSACHUSETTS, THE BILL IN EQUITY, HEREIN NUMBERED 181, AGAINST A.
HOWARD MYERS, ACTING REGIONAL DIRECTOR FOR THE FIRST REGION, NATIONAL
LABOR RELATIONS BOARD, EDMUND J. BLAKE, ITS REGIONAL ATTORNEY FOR THE
FIRST REGION, AND DANIEL M. LYONS, TRIAL EXAMINER, TO ENJOIN THEM FROM
HOLDING "A HEARING FOR THE PURPOSE OF DETERMINING WHETHER OR NOT THE
PLAINTIFF HAS ENGAGED AT ITS FORE RIVER PLANT IN ANY SO-CALLED UNFAIR
LABOR PRACTICES UNDER THE NATIONAL LABOR RELATIONS ACT, AND FROM HAVING
ANY PROCEEDINGS OR TAKING ANY ACTION WHATSOEVER, AT ANY TIME OR TIMES,
WITH RESPECT THERETO."  THERE WERE PRAYERS FOR A RESTRAINING ORDER, AN
INTERLOCUTORY INJUNCTION AND A PERMANENT INJUNCTION; AND, ALSO, A
PRAYER THAT THE COURT DECLARE THAT THE NATIONAL LABOR RELATIONS ACT AND
"DEFENDANTS' ACTIONS AND PROPOSED ACTIONS THEREUNDER" VIOLATE THE
FEDERAL CONSTITUTION. 

ON MAY 4, 1936, ANOTHER BILL IN EQUITY, HEREIN NUMBERED 182, AGAINST
THE SAME DEFENDANTS, SEEKING, ON LARGELY THE SAME ALLEGATIONS OF FACT,
SUBSTANTIALLY THE SAME RELIEF, WAS BROUGHT IN THE SAME COURT BY CHARLES
MACKENZIE, JAMES E. MANNING AND THOMAS E. BARKER, EMPLOYEES OF THE
BETHLEHEM CORPORATION AND OFFICERS OF THE SO-CALLED PLAN OF
REPRESENTATION AT THE FORE RIVER PLANT.  FN3 

UPON THE FILING OF EACH BILL, THE DISTRICT COURT ISSUED A RESTRAINING
ORDER AND AN ORDER OF NOTICE TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION
SHOULD NOT ISSUE.  IN EACH CASE THE DEFENDANTS FILED A MOTION TO
DISMISS THE BILL OF COMPLAINT AND ALSO A RETURN TO THE ORDER TO SHOW
CAUSE.  THE CASES WERE HEARD TOGETHER.  IN EACH, THE DISTRICT COURT
ISSUED THE PRELIMINARY INJUNCTION; AND THE DECREES THEREFOR ARE STILL
IN EFFECT.  THEY WERE AFFIRMED BY THE CIRCUIT COURT OF APPEALS FOR THE
FIRST CIRCUIT ON FEBRUARY 12, 1937.  88 F.(2D) 154.  PETITIONS FOR A
REHEARING, BASED UPON THE CONFLICT WITH THE DECISIONS OF OTHER CIRCUIT
COURTS OF APPEALS WERE DENIED.  AND THE COURT DENIED ALSO MOTIONS FOR
LEAVE TO FILE A SECOND PETITION FOR REHEARING, BASED UPON THE DECISIONS
OF THIS COURT IN NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN
STEEL CORP., 301 U.S. 1, AND OTHER CASES RENDERED APRIL 12, 1937.  89
F.(2D) 1000.  THE DISTRICT COURT DENIED THE MOTIONS TO DISMISS THE
BILLS.  15 F.SUPP.  915.  BUT THE REVIEW BY THE CIRCUIT COURT OF
APPEALS DEALT ONLY WITH THE DECREES FOR A PRELIMINARY INJUNCTION. 

THE TWO CASES PRESENT, IN THE MAIN, THE SAME QUESTIONS.  IN
DISCUSSING THEM REFERENCE WILL BE MADE, IN THE FIRST INSTANCE, ONLY TO
THE SUIT BROUGHT BY THE CORPORATION. 

WE ARE OF OPINION THAT THE DISTRICT COURT WAS WITHOUT POWER TO ENJOIN
THE BOARD FROM HOLDING THE HEARINGS. 

FIRST.  THERE IS NO CLAIM BY THE CORPORATION THAT THE STATUTORY
PROVISIONS AND THE RULES OF PROCEDURE PRESCRIBED FOR SUCH HEARINGS ARE
ILLEGAL; OR THAT THE CORPORATION WAS NOT ACCORDED AMPLE OPPORTUNITY TO
ANSWER THE COMPLAINT OF THE BOARD; OR THAT OPPORTUNITY TO INTRODUCE
EVIDENCE ON THE ALLEGATIONS MADE WILL BE DENIED.  THE CLAIM IS THAT THE
PROVISIONS OF THE ACT ARE NOT APPLICABLE TO THE CORPORATION'S BUSINESS
AT THE FORE RIVER PLANT, BECAUSE THE OPERATIONS CONDUCTED THERE ARE NOT
CARRIED ON, AND THE PRODUCTS MANUFACTURED ARE NOT SOLD, IN INTERSTATE
OR FOREIGN COMMERCE; THAT, THEREFORE, THE CORPORATION'S RELATIONS WITH
ITS EMPLOYEES AT THE PLANT CANNOT BURDEN OR INTERFERE WITH SUCH
COMMERCE; THAT HEARINGS WOULD, AT BEST, BE FUTILE; AND THAT THE HOLDING
OF THEM WOULD RESULT IN IRREPARABLE DAMAGE TO THE CORPORATION, NOT ONLY
BY REASON OF THEIR DIRECT COST AND THE LOSS OF TIME OF ITS OFFICIALS
AND EMPLOYEES, BUT ALSO BECAUSE THE HEARINGS WOULD CAUSE SERIOUS
IMPAIRMENT OF THE GOOD WILL AND HARMONIOUS RELATIONS EXISTING BETWEEN
THE CORPORATION AND ITS EMPLOYEES, AND THUS SERIOUSLY IMPAIR THE
EFFICIENCY OF ITS OPERATIONS.  FN4 

SECOND.  THE DISTRICT COURT IS WITHOUT JURISDICTION TO ENJOIN
HEARINGS BECAUSE THE POWER "TO PREVENT ANY PERSON FROM ENGAGING IN ANY
UNFAIR PRACTICE AFFECTING COMMERCE," HAS BEEN VESTED BY CONGRESS IN THE
BOARD AND THE CIRCUIT COURT OF APPEALS, AND CONGRESS HAS DECLARED:
"THIS POWER SHALL BE EXCLUSIVE, AND SHALL NOT BE AFFECTED BY ANY OTHER
MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN OR MAY BE ESTABLISHED
BY AGREEMENT, CODE, LAW, OR OTHERWISE."  FN5  THE GRANT OF THAT
EXCLUSIVE POWER IS CONSTITUTIONAL, BECAUSE THE ACT PROVIDED FOR
APPROPRIATE PROCEDURE BEFORE THE BOARD AND IN THE REVIEW BY THE CIRCUIT
COURT OF APPEALS AN ADEQUATE OPPORTUNITY TO SECURE JUDICIAL PROTECTION
AGAINST POSSIBLE ILLEGAL ACTION ON THE PART OF THE BOARD.  NO POWER TO
ENFORCE AN ORDER IS CONFERRED UPON THE BOARD.  TO SECURE ENFORCEMENT,
THE BOARD MUST APPLY TO A CIRCUIT COURT OF APPEALS FOR ITS AFFIRMANCE. 
AND UNTIL THE BOARD'S ORDER HAS BEEN AFFIRMED BY THE APPROPRIATE
CIRCUIT COURT OF APPEALS, NO PENALTY ACCRUES FOR DISOBEYING IT.  THE
INDEPENDENT RIGHT TO APPLY TO A CIRCUIT COURT OF APPEALS TO HAVE AN
ORDER SET ASIDE IS CONFERRED UPON ANY PARTY AGGRIEVED BY THE PROCEEDING
BEFORE THE BOARD.  THE BOARD IS EVEN WITHOUT POWER TO ENFORCE OBEDIENCE
TO ITS SUBPOENA TO TESTIFY OR TO PRODUCE WRITTEN EVIDENCE.  TO ENFORCE
OBEDIENCE IT MUST APPLY TO A DISTRICT COURT; AND TO SUCH AN APPLICATION
APPROPRIATE DEFENCE MAY BE MADE.  FN6 

AS WAS SAID IN NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN
STEEL CORP., 301 U.S. 1, 46, 47, THE PROCEDURAL PROVISIONS, "DO NOT
OFFEND AGAINST THE CONSTITUTIONAL REQUIREMENTS GOVERNING THE CREATION
AND ACTION OF ADMINISTRATIVE BODIES.  SEE INTERSTATE COMMERCE
COMMISSION V. LOUISVILLE & NASHVILLE R. CO., 227 U.S. 88, 91.  THE ACT
ESTABLISHES STANDARDS TO WHICH THE BOARD MUST CONFORM.  THERE MUST BE
COMPLAINT, NOTICE AND HEARING.  THE BOARD MUST RECEIVE EVIDENCE AND
MAKE FINDINGS.  THE FINDINGS AS TO THE FACTS ARE TO BE CONCLUSIVE, BUT
ONLY IF SUPPORTED BY EVIDENCE.  THE ORDER OF THE BOARD IS SUBJECT TO
REVIEW BY THE DESIGNATED COURT, AND ONLY WHEN SUSTAINED BY THE COURT
MAY THE ORDER BE ENFORCED.  UPON THAT REVIEW ALL QUESTIONS OF THE
JURISDICTION OF THE BOARD AND THE REGULARITY OF ITS PROCEEDINGS, ALL
QUESTIONS OF CONSTITUTIONAL RIGHT OR STATUTORY AUTHORITY, ARE OPEN TO
EXAMINATION BY THE COURT.  WE CONSTRUE THE PROCEDURAL PROVISIONS AS
AFFORDING ADEQUATE OPPORTUNITY TO SECURE JUDICIAL PROTECTION AGAINST
ARBITRARY ACTION IN ACCORDANCE WITH THE WELLSETTLED RULES APPLICABLE TO
ADMINISTRATIVE AGENCIES SET UP BY CONGRESS TO AID IN THE ENFORCEMENT OF
VALID LEGISLATION." 

IT IS TRUE THAT THE BOARD HAS JURISDICTION ONLY IF THE COMPLAINT
CONCERNS INTERSTATE OR FOREIGN COMMERCE.  UNLESS THE BOARD FINDS THAT
IT DOES, THE COMPLAINT MUST BE DISMISSED.  AND IF IT FINDS THAT
INTERSTATE OR FOREIGN COMMERCE IS INVOLVED, BUT THE CIRCUIT COURT OF
APPEALS CONCLUDES THAT SUCH FINDING WAS WITHOUT ADEQUATE EVIDENCE TO
SUPPORT IT, OR OTHERWISE CONTRARY TO LAW, THE BOARD'S PETITION TO
ENFORCE IT WILL BE DISMISSED, OR THE EMPLOYER'S PETITION TO HAVE IT SET
ASIDE WILL BE GRANTED.  FN7  SINCE THE PROCEDURE BEFORE THE BOARD IS
APPROPRIATE AND THE JUDICIAL REVIEW SO PROVIDED IS ADEQUATE, CONGRESS
HAD POWER TO VEST EXCLUSIVE JURISDICTION IN THE BOARD AND THE CIRCUIT
COURT OF APPEALS.  ANNISTON MANUFACTURING CO. V. DAVIS, 301 U.S. 337,
343-346. 

THIRD.  THE CORPORATION CONTENDS THAT, SINCE IT DENIES THAT
INTERSTATE OR FOREIGN COMMERCE IS INVOLVED AND CLAIMS THAT A HEARING
WOULD SUBJECT IT TO IRREPARABLE DAMAGE, RIGHTS GUARANTEED BY THE
FEDERAL CONSTITUTION WILL BE DENIED UNLESS IT BE HELD THAT THE DISTRICT
COURT HAS JURISDICTION TO ENJOIN THE HOLDING OF A HEARING BY THE
BOARD.  FN8  SO TO HOLD WOULD, AS THE GOVERNMENT INSISTS, IN EFFECT
SUBSTITUTE THE DISTRICT COURT FOR THE BOARD AS THE TRIBUNAL TO HEAR AND
DETERMINE WHAT CONGRESS DECLARED THE BOARD EXCLUSIVELY SHOULD HEAR AND
DETERMINE IN THE FIRST INSTANCE.  THE CONTENTION IS AT WAR WITH THE
LONG SETTLED RULE OF JUDICIAL ADMINISTRATION THAT NO ONE IS ENTITLED TO
JUDICIAL RELIEF FOR A SUPPOSED OR THREATENED INJURY UNTIL THE
PRESCRIBED ADMINISTRATIVE REMEDY HAS BEEN EXHAUSTED.  FN9  THAT RULE
HAS BEEN REPEATEDLY ACTED ON IN CASES WHERE, AS HERE, THE CONTENTION IS
MADE THAT THE ADMINISTRATIVE BODY LACKED POWER OVER THE SUBJECT
MATTER.  FN10 

OBVIOUSLY, THE RULE REQUIRING EXHAUSTION OF THE ADMINISTRATIVE REMEDY
CANNOT BE CIRCUMVENTED BY ASSERTING THAT THE CHARGE ON WHICH THE
COMPLAINT RESTS IS GROUNDLESS AND THAT THE MERE HOLDING OF THE
PRESCRIBED ADMINISTRATIVE HEARING WOULD RESULT IN IRREPARABLE DAMAGE. 
FN11  LAWSUITS ALSO OFTEN PROVE TO HAVE BEEN GROUNDLESS; BUT NO WAY HAS
BEEN DISCOVERED OF RELIEVING A DEFENDANT FROM THE NECESSITY OF A TRIAL
TO ESTABLISH THE FACT. 

FOURTH.  THE CIRCUIT COURT OF APPEALS SHOULD HAVE REVERSED THE
DECREES FOR A PRELIMINARY INJUNCTION.  IT IS TRUE THAT ORDINARILY THE
DECREE OF A DISTRICT COURT GRANTING OR DENYING A PRELIMINARY INJUNCTION
WILL NOT BE DISTURBED ON APPEAL.  BUT THAT RULE OF PRACTICE HAS NO
APPLICATION WHERE, AS HERE, THERE WAS AN INSUPERABLE OBJECTION TO THE
MAINTENANCE OF THE SUIT IN POINT OF JURISDICTION AND WHERE IT CLEARLY
APPEARS THAT THE DECREE WAS THE RESULT OF AN IMPROVIDENT EXERCISE OF
JUDICIAL DISCRETION.  FN12  SINCE THE CONSTITUTIONALITY OF THE ACT HAS
BEEN DETERMINED BY OUR DECISION IN NATIONAL LABOR RELATIONS BOARD V.
JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, AND THE DEFECT IN THE BILL IS
INCAPABLE OF REMEDY BY AMENDMENT, ITS DISMISSAL SHOULD BE DIRECTED. 
FN13    FIFTH.  IN NO. 182, ALSO, THE CIRCUIT COURT OF APPEALS SHOULD
HAVE REVERSED THE DECREE FOR A PRELIMINARY INJUNCTION AND DIRECTED
DISMISSAL OF THE BILL.  THE PLAINTIFFS, OFFICERS OF THE SO-CALLED PLAN
OF REPRESENTATION OF EMPLOYEES, ALLEGED, IN ADDITION TO THE FACTS
ALREADY STATED, THAT THE EMPLOYEES ARE SATISFIED WITH THEIR EXISTING
CONTRACTS OF EMPLOYMENT AND DESIRE TO RETAIN THE EXISTING PLAN WITHOUT
CHANGE; THAT THE HOLDING OF THE PROPOSED HEARING WILL DISCREDIT THE
PLAN AND DESTROY ITS USEFULNESS TO THE EMPLOYEES; THAT THEY WILL BE
DEPRIVED OF THEIR RIGHT TO NEGOTIATE BY THE METHOD OF THEIR CHOICE, THE
VALUE OF WHICH HAS BEEN PROVIDED BY YEARS OF OPERATION; THAT ALTERATION
OF THE PLAN WILL CAUSE DISSATISFACTION AMONG THE EMPLOYEES; THAT
OPERATION OF PLANT WILL BE DISRUPTED BY LABOR DISTURBANCES; THAT
EMPLOYMENT WILL BE INTERRUPTED; AND THAT THE DAMAGE TO THE EMPLOYEES
WILL BE IRREPARABLE.  THESE ADDITIONAL ALLEGATIONS FURNISH NO REASON
WHY THE BOARD SHOULD BE PREVENTED FROM EXERCISING THE EXCLUSIVE INITIAL
JURISDICTION CONFERRED UPON IT BY CONGRESS.  DECREES FOR PRELIMINARY
INJUNCTION REVERSED WITH DIRECTION TO DISMISS THE BILLS. 

FN1  E.I. DUPONT DE NEMOURS & CO. V. BOLAND, 85 F.(2D) 12(C.C.A. 2);
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO. V. SCHAUFFLER, 91 F.(2D)
730(C.C.A. 4); BRADLEY LUMBER CO. V. NATIONAL LABOR RELATIONS BOARD, 84
F.(2D) 97(C.C.A. 5); CLARK V. LINDEMANN & HOVERSON CO., 88 F.(2D)
59(C.C.A. 7); PRATT V. OBERMAN & CO., 89 F.(2D) 786(C.C.A. 8); HELLER
BROS. CO. V. LIND, 66 APP. D.C. 306; 86 F.(2D) 862; CF. BOWEN V. JAMES
VERNOR CO., 89 F.(2D) 968(C.C.A. 6); CARLISLE LUMBER CO. V. HOPE, 83
F.(2D) 92(C.C.A. 9); LYONS V. EAGLE-PICHER LEAD CO., 90 F.(2D)
321(C.C.A. 10). 

FN2  A DELAWARE CORPORATION, WITH ITS PRINCIPAL PLACE OF BUSINESS AT
BETHLEHEM, PENNSYLVANIA. 

FN3 A SUBSTITUTED BILL OF COMPLAINT WAS FILED MAY 7, 1936. 

FN4  IT IS ALLEGED THAT IN 1934 AND 1935 THE PREDECESSOR OF THE
PRESENT NATIONAL LABOR RELATIONS BOARD INSTITUTED SOMEWHAT SIMILAR
ACTION AGAINST THE CORPORATION.  ALTHOUGH THE PROCEEDINGS WERE
EVENTUALLY DISMISSED, THE HEARINGS CONSUMED A TOTAL OF SOME 2500 HOURS
OF WORKING TIME OF OFFICIALS AND EMPLOYEES AND COST THE CORPORATION
MORE THAN $15,000, NONE OF WHICH COULD BE RECOVERED. 

FN5  COMPARE HOUSE COMMITTEE REPORT, H.R. REP. 1147, 74TH CONG., 1ST
SESS., P. 24:  "ANY PERSON AGGRIEVED BY A FINAL ORDER OF THE BOARD
GRANTING OR DENYING IN WHOLE OR IN PART THE RELIEF SOUGHT MAY CLAIM A
REVIEW OF SUCH ORDER IN THE APPROPRIATE CIRCUIT COURT OF APPEALS, OR IN
THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.  IT IS INTENDED HERE
TO GIVE THE PARTY AGGRIEVED A FULL, EXPEDITIOUS, AND EXCLUSIVE METHOD
OF REVIEW IN ONE PROCEEDING AFTER A FINAL ORDER IS MADE.  UNTIL SUCH
FINAL ORDER IS MADE THE PARTY IS NOT INJURED, AND CANNOT BE HEARD TO
COMPLAIN, AS HAS BEEN HELD IN CASES UNDER THE FEDERAL TRADE COMMISSION
ACT." 

FN6  SEE SEC. 11 OF THE ACT AND ARTICLE II, SECS. 20 AND 21, OF THE
RULES AND REGULATIONS ISSUED APRIL 27, 1936.  CF. FEDERAL TRADE
COMMISSION V. CLAIRE FURNACE CO., 274 U.S. 160; E.I. DUPONT DE NEMOURS
& CO. V. BOLAND, 85 F.(2D) 12(C.C.A. 2). 

FN7  SECTION 10(F) OF THE ACT PROVIDES:  "UPON SUCH FILING, THE COURT
SHALL PROCEED IN THE SAME MANNER AS IN THE CASE OF AN APPLICATION BY
THE BOARD UNDER SUBSECTION (E), AND SHALL HAVE THE SAME EXCLUSIVE
JURISDICTION TO GRANT TO THE BOARD SUCH TEMPORARY RELIEF OR RESTRAINING
ORDER AS IT DEEMS JUST AND PROPER, AND IN LIKE MANNER TO MAKE AND ENTER
A DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING
ASIDE IN WHOLE OR IN PART THE ORDER OF THE BOARD; AND THE FINDINGS OF
THE BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL IN LIKE
MANNER BE CONCLUSIVE." 

FN8  IN SUPPORT OF THAT CONTENTION THE FOLLOWING CASES WERE CITED:
OHIO VALLEY WATER CO. V. BEN AVON BOROUGH, 253 U.S. 287, 289; BLUEFIELD
CO. V. PUBLIC SERVICE COMM'N, 262 U.S. 679, 683; PHILLIPS V.
COMMISSIONER, 283 U.S. 589, 600; CROWELL V. BENSON, 285 U.S. 22, 60,
64; STATE CORPORATION COMM'N V. WICHITA GAS CO., 290 U.S. 561, 569; ST.
JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 51-52. 

FN9  THE RULE HAS BEEN MOST FREQUENTLY APPLIED IN EQUITY WHERE RELIEF
BY INJUNCTION WAS SOUGHT.  PITTSBURGH &C. RY. V. BOARD OF PUBLIC WORKS,
172 U.S. 32, 44-45; PRENTIS V. ATLANTIC COAST LINE CO., 211 U.S. 210,
230; DALTON ADDING MACHINE CO. V. STATE CORPORATION COMM'N, 236 U.S.
699, 701; GORHAM MFG. CO. V. STATE TAX COMM'N, 266 U.S. 265, 269-70;
FEDERAL TRADE COMM'N V. CLAIRE FURNACE CO., 274 U.S. 160, 174; LAWRENCE
V. ST. LOUIS-SAN FRANCISCO RY. CO., 274 U.S. 588, 592-93; CHICAGO, M.,
ST. P. & P.R. CO. V. RISTY, 276 U.S. 567, 575; ST. LOUIS-SAN FRANCISCO
RY. CO. V. ALABAMA PUBLIC SERVICE COMM'N, 279 U.S. 560, 563; PORTER V.
INVESTORS SYNDICATE, 286 U.S. 461, 468, 471; UNITED STATES V. ILLINOIS
CENTRAL RY. CO., 291 U.S. 457, 463-64; HEGEMAN FARMS CORP. V. BALDWIN,
293 U.S. 163, 172; CF. RED "C" OIL MFG. CO. V. BOARD OF AGRICULTURE,
222 U.S. 380, 394; FARNCOMB V. DENVER, 252 U.S. 7, 12; MILHEIM V.
MOFFAT TUNNEL DISTRICT, 262 U.S. 710, 723; MCGREGOR V. HOGAN, 263 U.S.
234, 238; WHITE V. JOHNSON, 282 U.S. 367, 374; PETERSEN BAKING CO. V.
BRYAN, 290 U.S. 570, 575; PACIFIC TEL. & TEL. CO. V. SEATTLE, 291 U.S.
300, 304.  BUT BECAUSE THE RULE IS ONE OF JUDICIAL ADMINISTRATION - NOT
MERELY A RULE GOVERNING THE EXERCISE OF DISCRETION - IT IS APPLICABLE
TO PROCEEDINGS AT LAW AS WELL AS SUITS IN EQUITY.  CF. FIRST NATIONAL
BANK V. BOARD OF COUNTY COMM'RS, 264 U.S. 450, 455; ANNISTON MFG. CO.
V. DAVIS, 301 U.S. 337, 343. 

FN10  DALTON ADDING MACHINE CO. V. STATE CORPORATION COMM'N, 236 U.S.
699; FEDERAL TRADE COMM'N V. CLAIRE FURNACE CO., 274 U.S. 160; LAWRENCE
V. ST. LOUIS-SAN FRANCISCO RY. CO., 274 U.S. 588; ST. LOUIS-SAN
FRANCISCO RY. CO. V. ALABAMA PUBLIC SERVICE COMM'N, 279 U.S. 560; CF.
WESTERN & ATLANTIC R. CO. V. GEORGIA PUBLIC SERVICE COMM'N, 267 U.S.
493, 496, AND CASES CITED IN NOTE 1, SUPRA. 

FN11  SUCH CONTENTIONS WERE SPECIFICALLY REJECTED IN BRADLEY LUMBER
CO. V. NATIONAL LABOR RELATIONS BOARD, 84 F.(2D) 97(C.C.A. 5); CLARK V.
LINDEMANN & HOVERSON CO., 88 F.(2D) 59(C.C.A. 7); CHAMBER OF COMMERCE
V. FEDERAL TRADE COMM'N, 52 APP. D.C. 40; 280 FED. 45(C.C.A. 8); HELLER
BROS. CO. V. LIND, 66 APP. D.C. 306; 86 F.(2D) 862; AND PITTSBURGH & W.
VA. RY. CO. V. INTERSTATE COMMERCE COMM'N, 280 FED. 1014(APP.  D.C.). 
CF. UNITED STATES V. LOS ANGELES & S.L.R. CO., 273 U.S. 299, 314;
LAWRENCE V. ST. LOUIS-SAN FRANCISCO RY. CO., 274 U.S. 588; DALTON
ADDING MACHINE CO. V. STATE CORPORATION COMM'N, 236 U.S. 699; MCCHORD
V. LOUISVILLE & NASHVILLE RY. CO., 183 U.S. 483; RICHMOND HOSIERY MILLS
V. CAMP, 74 F.(2D) 200, 201(C.C.A. 5). 

THE CASES CITED BY THE CORPORATION ARE NOT OPPOSED.  WATSON V.
SUTHERLAND, 5 WALL.  74; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510;
WALLA WALLA V. WALLA WALLA WATER CO., 172 U.S. 1; VICKSBURG WATERWORKS
CO. V. VICKSBURG, 185 U.S. 65, 82; HITCHMAN COAL & COKE CO. V.
MITCHELL, 245 U.S. 229, 248; PENNSYLVANIA V. WEST VIRGINIA, 262 U.S.
553, 592, 593; CITY BANK FARMERS TRUST CO. V. SCHNADER, 291 U.S. 24;
TRUAX V. RAICH, 239 U.S. 33; TERRACE V. THOMPSON, 263 U.S. 197, 215
16. 

FN12  MECCANO LTD. V. JOHN WANAMAKER, 253 U.S. 136, 141; LAWRENCE V.
ST. LOUIS-SAN FRANCISCO RY. CO., 274 U.S. 588(SEMBLE); CF. PRENDERGAST
V. NEW YORK TELEPHONE CO., 262 U.S. 43, 50-51; NATIONAL FIRE INSURANCE
CO. V. THOMPSON, 281 U.S. 331, 338; ALABAMA V. UNITED STATES, 279 U.S.
229, 231; ROGERS V. HILL, 289 U.S. 582, 587. 

FN13  SMITH V. VULCAN IRON WORKS, 165 U.S. 518, 525; MAST, FOOS & CO.
V. STOVER MFG. CO., 177 U.S. 485, 494; METROPOLITAN WATER CO. V. KAW
VALLEY DRAINAGE DIST., 223 U.S. 519, 523; UNITED STATES FIDELITY &
GUARANTY CO. V. BRAY, 225 U.S. 205, 214; DENVER V. NEW YORK TRUST CO.,
229 U.S. 123, 136; CF. IN RE TAMPA SUBURBAN R. CO., 168 U.S. 583, 588;
EX PARTE NATIONAL ENAMELING & STAMPING CO., 201 U.S. 156, 162; MECCANO
LTD. V. JOHN WANAMAKER, 253 U.S. 136, 141. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :











NEWPORT NEWS CO. V. SCHAUFFLER, 303 U.S. 54 


NO. 305.  ARGUED JANUARY 5, 1938.  - DECIDED JANUARY 31, 1938.  - 91
F.(2D) 730, AFFIRMED. 


1.  BETHLEHEM SHIPBUILDING CORP. V. MYERS, ANTE, P. 41, FOLLOWED.  P.
57. 

2.  IN A SUIT IN EQUITY TO ENJOIN THE HOLDING OF A HEARING UPON A
COMPLAINT ISSUED BY THE NATIONAL LABOR RELATIONS BOARD, ALLEGATIONS OF
THE BILL THAT INTERSTATE OR FOREIGN COMMERCE IS NOT INVOLVED ARE
CONCLUSIONS OF LAW, AND ARE NOT ADMITTED BY A MOTION TO DISMISS.  P.
57. 

3.  THE NATIONAL LABOR RELATIONS ACT DOES NOT VEST IN THE LABOR BOARD
EXCLUSIVE POWER TO DETERMINE ITS OWN JURISDICTION.  IT CONFERS UPON THE
BOARD EXCLUSIVE INITIAL POWER TO MAKE THE INVESTIGATION, BUT PROVIDES
FOR JUDICIAL REVIEW BY THE CIRCUIT COURT OF APPEALS.  P. 57. 

4.  THERE IS NO BASIS IN THE ACT FOR THE CONTENTION THAT THE DISTRICT
COURT MAY ENTERTAIN A SUIT TO PREVENT THE BOARD FROM CONDUCTING A
PUBLIC INVESTIGATION UNDER SEC. 10 IF THE EMPLOYER CLAIMS THAT IT IS
NOT ENGAGED IN INTERSTATE OR FOREIGN COMMERCE.  P. 58. 

5.  A CAUSE IN WHICH EQUITABLE RELIEF WAS SOUGHT TO PREVENT INJURY
WHICH ALLEGEDLY WOULD RESULT FROM THE HOLDING OF A HEARING BY THE LABOR
BOARD CAN NOT BE DISPOSED OF AS MOOT WHERE, THOUGH THE HEARING HAS IN
THE MEANTIME BEEN HELD, THE TRIAL EXAMINER HAS NOT YET MADE HIS REPORT
TO THE BOARD, THE BOARD HAS MADE NO DECISION, AND THERE IS THUS A
POSSIBILITY OF FURTHER PROCEEDINGS.  P. 58. 

NEWPORT NEWS SHIPBUILDING & DRY DOCK CO. V. SCHAUFFLER ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 302 U.S. 673, TO REVIEW A DECREE AFFIRMING THE DISMISSAL
OF A BILL WHICH SOUGHT TO RESTRAIN OFFICIALS OF THE NATIONAL LABOR
RELATIONS BOARD FROM HOLDING A HEARING UPON A COMPLAINT ISSUED AGAINST
THE SHIPBUILDING COMPANY. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY IS A VIRGINIA
CORPORATION ENGAGED IN THE CONSTRUCTION, OVERHAUL AND REPAIR OF SHIPS
AT ITS PLANT IN THAT STATE.  IN JUNE, 1937, THE INDUSTRIAL UNION OF
MARINE AND SHIPBUILDING WORKERS OF AMERICA FILED WITH THE NATIONAL
LABOR RELATIONS BOARD THE CHARGE THAT THE COMPANY WAS "DOMINATING AND
INTERFERING WITH THE EMPLOYEES' RIGHT OF SELF ORGANIZATION BY
DOMINATING, INTERFERING WITH AND LENDING FINANCIAL SUPPORT TO A SO
CALLED LABOR ORGANIZATION" AT SAID PLANT KNOWN AS "REPRESENTATION OF
EMPLOYEES"; THAT THE COMPANY HAD DISCHARGED AND REFUSED TO REINSTATE
SEVERAL EMPLOYEES AT THE PLANT "BECAUSE THEY JOINED AND ASSISTED A
LABOR ORGANIZATION OF THEIR OWN CHOOSING AND ENGAGED IN CONCERTED
ACTIVITIES WITH FELLOW EMPLOYEES FOR COLLECTIVE BARGAINING AND OTHER
MUTUAL AID AND PROTECTION"; AND THAT BY SO DOING THE COMPANY WAS
ENGAGED IN UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SEC. 8,
SUBSECTIONS (1), (2) AND (3) OF THE NATIONAL LABOR RELATIONS ACT. 
THEREUPON, THE BOARD, THROUGH ITS REGIONAL DIRECTOR FOR THE 5TH REGION,
BENNETT F. SCHAUFFLER, FILED A COMPLAINT AGAINST THE COMPANY AND GAVE
NOTICE OF A HEARING PURSUANT TO SEC. 10(B) OF THE ACT. 

THE COMPANY DID NOT ANSWER THE COMPLAINT.  BEFORE THE DATE ASSIGNED
FOR THE HEARING, IT BROUGHT, IN THE FEDERAL COURT FOR EASTERN VIRGINIA,
THIS SUIT, IN WHICH IT SOUGHT TO ENJOIN SCHAUFFLER, JACOB BLUM, THE
REGIONAL ATTORNEY FOR THE 5TH REGION, BOTH CITIZENS OF MARYLAND, AND
THE TRIAL EXAMINER DESIGNATED OR TO BE DESIGNATED, FROM HOLDING THE
HEARING AND TAKING FURTHER PROCEEDINGS UNDER THE ACT.  THERE WERE
PRAYERS FOR BOTH AN INTERLOCUTORY AND A FINAL INJUNCTION AND FOR A
DECLARATORY JUDGMENT THAT THE ACT AS APPLIED TO THE COMPANY'S BUSINESS
AND ITS RELATIONS TO ITS EMPLOYEES IS UNCONSTITUTIONAL.  AS THE BASIS
FOR THIS RELIEF IT ALLEGED FACTS SIMILAR TO THOSE SET FORTH IN THE BILL
OF THE BETHLEHEM SHIPBUILDING CORPORATION, LTD., IN NO. 181, ANTE, P.
41.  IT ALLEGED, SPECIFICALLY, THAT NEITHER THE COMPANY'S BUSINESS NOR
ITS RELATIONS WITH ITS EMPLOYEES AFFECTED INTERSTATE OR FOREIGN
COMMERCE; THAT IT HAD NOT ENGAGED IN ANY UNFAIR LABOR PRACTICE; AND
THAT IT WOULD BE IRREPARABLY DAMAGED BY THE HOLDING OF THE HEARING OF
THE BOARD AND THE TAKING OF ANY ACTION IN CONNECTION THEREWITH.  AMONG
THE ELEMENTS OF IRREPARABLE INJURY ALLEGED WERE THAT THE COMPANY WOULD
BE HELD UP TO SCORN AS A VIOLATOR OF A LAW OF THE UNITED STATES AND SO
WOULD INCUR FOR AS LONG AS THE PROCEEDINGS LASTED THE ODIUM AND ILL
WILL OF THE PUBLIC AND OF ITS OWN EMPLOYEES; THAT ITS OFFICIALS WOULD
BE COMPELLED TO PRODUCE EVIDENCE OF A CONFIDENTIAL NATURE; AND THAT THE
PENDENCY AND HOLDING OF THE BOARD'S PROCEEDINGS, REGARDLESS OF THEIR
OUTCOME, WOULD IMPEDE THE COMPANY IN EXERCISING ITS RIGHT TO BARGAIN
FREELY WITH ITS EMPLOYEES. 

THE CASE WAS HEARD BY THE DISTRICT COURT UPON THE PLAINTIFF'S
APPLICATION FOR A TEMPORARY INJUNCTION AND THE DEFENDANTS' MOTION THAT
THE BILL BE DISMISSED ON THE GROUND, AMONG OTHERS, THAT THE COMPANY HAD
FAILED TO EXHAUST ITS ADMINISTRATIVE REMEDIES AND THAT GRANTING THE
RELIEF PRAYED WOULD BE AN USURPATION OF THE AUTHORITY EXCLUSIVELY
VESTED BY THE ACT IN THE COURT OF APPEALS.  THE COURT DENIED THE
TEMPORARY INJUNCTION AND DISMISSED THE BILL ON THE GROUND THAT THE
COMPANY HAD "A PLAIN, ADEQUATE AND EXCLUSIVE REMEDY UNDER THE TERMS OF
THE ACT ITSELF, THAT NO IRREPARABLE DAMAGE IS THREATENED, AND THAT THIS
(THE DISTRICT) COURT HAS NO JURISDICTION OF THE CONTROVERSY PRESENTED
BY THE BILL."  THAT DECREE WAS AFFIRMED BY THE COURT OF APPEALS FOR THE
FOURTH CIRCUIT, WHICH HELD THAT THE COMPANY "HAS AN ADEQUATE REMEDY
UNDER THE STATUTE AND MAY NOT APPLY FOR RELIEF IN EQUITY UNTIL IT HAS
EXHAUSTED THE ADMINISTRATIVE REMEDY THERE PROVIDED."  91 F.(2D) 730. 

WE GRANTED CERTIORARI BECAUSE OF CONFLICT WITH BETHLEHEM SHIPBUILDING
CORP. V. MYERS, 89 F.(2D) 1000, IN WHICH THE FACTS ARE SUBSTANTIALLY
SIMILAR AND THE ISSUES THE SAME.  THAT CASE IS REVERSED BY OUR OPINION
DELIVERED THIS DAY IN NO. 181.  FOR THE REASONS THERE STATED, WE AFFIRM
THE DECREE HEREIN, ADDING ONLY THE FOLLOWING. 

FIRST.  THE COMPANY INSISTS THAT SINCE THE CASE WAS HEARD ON MOTION
TO DISMISS THE BILL WHICH ALLEGES THAT THE COMPANY IS NOT ENGAGED IN
INTERSTATE OR FOREIGN COMMERCE AND ITS RELATIONS TO ITS EMPLOYEES DO
NOT AFFECT SUCH COMMERCE, THESE ALLEGATIONS MUST BE ACCEPTED AS TRUE. 
THE MOTION ADMITS AS FACTS ALLEGATIONS DESCRIBING THE MANNER IN WHICH
THE BUSINESS IS CARRIED ON, BUT NOT LEGAL CONCLUSIONS FROM THOSE
FACTS.  THE ALLEGATIONS THAT INTERSTATE OR FOREIGN COMMERCE IS NOT
INVOLVED ARE CONCLUSIONS OF LAW.  FN1 

SECOND.  THE COMPANY URGES THAT, SINCE THE BOARD CAN HAVE
JURISDICTION ONLY OVER BUSINESSES ENGAGED IN INTERSTATE OR FOREIGN
COMMERCE, SINCE THE COMPANY DENIES THAT IT IS SO ENGAGED, AND THE
FEDERAL CONSTITUTION DOES NOT PERMIT VESTING IN AN ADMINISTRATIVE BODY
EXCLUSIVE POWER TO DETERMINE ITS OWN JURISDICTION, THE DISTRICT COURT
MUST HAVE POWER TO PASS UPON THAT ISSUE.  THE ACT DOES NOT PURPORT TO
LEAVE THE DETERMINATION WHOLLY TO THE BOARD.  IT CONFERS UPON THE BOARD
EXCLUSIVE INITIAL POWER TO MAKE THE INVESTIGATION, BUT PROVIDES FOR
JUDICIAL REVIEW BY THE CIRCUIT COURT OF APPEALS.  FN2  AS THE ONLY
QUESTION HERE INVOLVED IS THE POWER OF THE BOARD TO MAKE THE
INVESTIGATION, WE HAVE NO OCCASION TO CONSIDER THE EXTENT OF THE REVIEW
PROVIDED. 

IT IS SUGGESTED THAT WHILE THE BOARD HAS THE RIGHT AND DUTY TO MAKE,
UNDER SEC. 5 OF THE ACT, A PRELIMINARY INFORMAL INQUIRY BEFORE PUBLIC
ACTION, FOR THE PURPOSE OF INFORMING ITSELF WHETHER A PARTICULAR
CONCERN IS SUBJECT TO ITS AUTHORITY, THE DISTRICT COURT MAY ENTERTAIN A
SUIT TO PREVENT THE BOARD FROM CONDUCTING A PUBLIC INVESTIGATION UNDER
SEC. 10 IF THE CONCERN CLAIMS THAT IT IS NOT ENGAGED IN INTERSTATE OR
FOREIGN COMMERCE.  THE LIMITATION SUGGESTED WOULD, IN LARGE MEASURE,
DEFEAT THE PURPOSE OF THE LEGISLATION.  THERE IS NO BASIS IN THE ACT
FOR SUCH A CONTENTION. 

THIRD.  THE CIRCUIT COURT OF APPEALS HAVING REFUSED TO GRANT AN
INJUNCTION STAYING THE ACTION BY THE BOARD PENDING THE CONTEMPLATED
APPEAL, APPLICATION FOR A STAY WAS MADE TO MR. JUSTICE BUTLER OF THIS
COURT, AFTER FILING OF THE PETITION FOR A WRIT OF CERTIORARI.  IT HAS
BEEN CALLED TO OUR ATTENTION THAT, UPON HIS DENIAL OF THAT APPLICATION,
THE HEARING WAS HELD BEFORE THE TRIAL EXAMINER OF THE BOARD FROM AUGUST
30 TO SEPTEMBER 8, 1937, AND HAS APPARENTLY BEEN CLOSED.  TO THE EXTENT
THAT RELIEF WAS SOUGHT TO PREVENT THE INJURY RESULTING FROM A HEARING,
THE CAUSE APPEARS TO BE MOOT.  BUT THE CAUSE CANNOT BE DISPOSED OF AS
MOOT, AS THE TRIAL EXAMINER HAS NOT YET MADE HIS REPORT TO THE BOARD;
THE BOARD HAS MADE NO DECISION; AND THUS THERE IS A POSSIBILITY OF
FURTHER PROCEEDINGS.  DECREE AFFIRMED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION CORP. V. HOPE,
248 U.S. 498, 500; NORTZ V. UNITED STATES, 294 U.S. 317, 324-325;
PACIFIC STATES BOX & BASKET CO. V. WHITE, 296 U.S. 176, 184-185. 

FN2  SEC. 10(A), (E), (F).  SEE NATIONAL LABOR RELATIONS BOARD V.
JONES & LAUGHLIN STEEL CO., 301 U.S. 1, 47; MYERS V. BETHLEHEM
SHIPBUILDING CORP., ANTE, P. 41. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















ADAM V. SAENGER, 303 U.S. 59 


NO. 197.  ARGUED JANUARY 6, 1938.  - DECIDED JANUARY 31, 1938.  - 101
S.W.(2D) 1046, REVERSED. 


1.  MATTER OF FACT OR OF LAW UPON WHICH THE JURISDICTION OF A STATE
COURT TO RENDER A JUDGMENT DEPENDED, BUT WHICH WAS NOT LITIGATED IN
THAT COURT, IS MATTER FOR ADJUDICATION BY THE COURT OF ANOTHER STATE IN
AN ACTION ON THE JUDGMENT.  P. 62. 

2.  UPON AN APPEAL FROM THE JUDGMENT OF A STATE COURT IN A SUIT UPON
A JUDGMENT OF ANOTHER STATE, THIS COURT TAKES JUDICIAL NOTICE OF THE
LAW OF THE LATTER STATE TO THE SAME EXTENT AS SUCH NOTICE IS TAKEN BY
THE COURT APPEALED FROM.  P. 63. 

3.  ACCORDING TO TEXAS LAW THE LEGAL EFFECT OF A JUDGMENT OF ANOTHER
STATE, ON WHICH SUIT IS BROUGHT, IS TO BE DETERMINED BY THE COURT, NOT
THE JURY.  BUT A SUITOR WHO ASSERTS THAT THE EFFECT IS DIFFERENT FROM
THAT OF A SIMILAR JUDGMENT OF THE COURTS OF TEXAS IS REQUIRED TO ALLEGE
SPECIFICALLY AND PROVE AS A MATTER OF FACT THE PARTICULAR LAW OR USAGE
ON WHICH HE RELIES TO ESTABLISH THE DIFFERENCE; AND, ON DEMURRER, ONLY
THE LAW OR USAGE SPECIFICALLY ALLEGED WILL BE CONSIDERED IN DETERMINING
WHETHER THE LAW OF THE OTHER STATE DIFFERS FROM THAT OF TEXAS.  P. 63. 

4.  A, BEING SUED BY B, A RESIDENT OF TEXAS, IN A COURT OF GENERAL
JURISDICTION IN CALIFORNIA, BROUGHT A CROSS-ACTION IN THE SAME COURT
AGAINST B WITH LEAVE OF COURT AND BY SERVICE IN CALIFORNIA OF A CROSS
COMPLAINT UPON B'S ATTORNEY OF RECORD IN THE ORIGINAL ACTION.  A
OBTAINED JUDGMENT AGAINST B BY DEFAULT AND SUED UPON IT IN TEXAS,
PLEADING RELEVANT CALIFORNIA STATUTES AND CITATIONS OF DECISIONS OF
CALIFORNIA COURTS.  THE QUESTION, RAISED BY GENERAL DEMURRER TO A'S
COMPLAINT, WAS THE LEGAL EFFECT IN CALIFORNIA OF THE SERVICE IN THE
CROSS-ACTION, AND HENCE OF THE JUDGMENT FOUNDED UPON IT.  HELD: 

THAT THIS QUESTION, WHETHER REGARDED AS OF FACT OR OF LAW, IS A
FEDERAL QUESTION ARISING UNDER THE FULL FAITH AND CREDIT CLAUSE AND
R.S. SEC. 905, 28 U.S.C. 687, AND ITS DECISION BY THE TEXAS COURT IS
REVIEWABLE HERE.  P. 64. 

5.  UNDER SECS. 442, 1015 AND 1011 OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE, AND DECISIONS OF THE CALIFORNIA COURTS, AS PLEADED IN THIS
CASE, VALID SERVICE OF A CROSS-COMPLAINT MAY BE MADE UPON THE ATTORNEY
OF THE PLAINTIFF IN THE ORIGINAL ACTION.  P. 65. 

THE CROSS-COMPLAINT WAS FOR CONVERSION OF CHATTELS, FILED, WITH THE
PERMISSION OF THE COURT, IN AN ACTION FOR GOODS SOLD AND DELIVERED. 

6.  THERE IS NOTHING IN THE FOURTEENTH AMENDMENT TO PREVENT A STATE
FROM ADOPTING A PROCEDURE BY WHICH A JUDGMENT IN PERSONAM MAY BE
RENDERED IN A CROSS-ACTION AGAINST A PLAINTIFF IN ITS COURTS, UPON
SERVICE OF PROCESS OR OF APPROPRIATE PLEADING UPON HIS ATTORNEY OF
RECORD.  P. 67. 

ADAM V. SAENGER ET AL. 

CERTIORARI TO THE COURT OF CIVIL APPEALS FOR THE NINTH SUPREME
JUDICIAL DISTRICT OF TEXAS. 

CERTIORARI, 302 U.S. 668, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A SUIT BROUGHT IN TEXAS BY THE ASSIGNEE OF A JUDGMENT
RECOVERED, ON CROSS-COMPLAINT, IN CALIFORNIA AGAINST A TEXAS
CORPORATION.  THE TEXAS SUIT WAS AGAINST THE DIRECTORS OF THE
CORPORATION, AS TRUSTEES IN DISSOLUTION, AND AGAINST THE STOCKHOLDERS,
AS TRANSFEREES OF CORPORATE ASSETS.  THE SUPREME COURT OF TEXAS HAVING
REFUSED A WRIT OF ERROR FOR WANT OF JURISDICTION, THE WRIT OF THIS
COURT RAN TO THE COURT OF CIVIL APPEALS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE ACTION, IN THIS CASE, OF THE
TEXAS STATE COURTS, IN DISMISSING A SUIT FOUNDED UPON A JUDGMENT OF THE
SUPERIOR COURT OF CALIFORNIA, DENIED TO THE JUDGMENT THE FAITH AND
CREDIT WHICH THE CONSTITUTION COMMANDS. 

PETITIONER, AS ASSIGNEE OF A CALIFORNIA JUDGMENT AGAINST THE BEAUMONT
EXPORT & IMPORT COMPANY, A TEXAS CORPORATION, BROUGHT THE PRESENT SUIT
IN THE TEXAS STATE DISTRICT COURT AGAINST RESPONDENTS, DIRECTORS OF THE
CORPORATION ACTING AS ITS TRUSTEES IN DISSOLUTION, AND AGAINST ITS
STOCKHOLDERS AS TRANSFEREES OF CORPORATE ASSETS, TO COLLECT THE
JUDGMENT.  HIS PETITION SETS OUT IN DETAIL THE CIRCUMSTANCES ATTENDING
THE RENDITION OF THE CALIFORNIA JUDGMENT AND INCORPORATES BY REFERENCE
A DULY ATTESTED COPY OF THE JUDGMENT ROLL. 

IT APPEARS THAT THE CORPORATION BROUGHT SUIT IN THE SUPERIOR COURT OF
CALIFORNIA, A COURT OF GENERAL JURISDICTION, AGAINST MONTES,
PETITIONER'S PREDECESSOR IN INTEREST, TO RECOVER A MONEY JUDGMENT FOR
GOODS SOLD AND DELIVERED.  THEREUPON MONTES, FOLLOWING WHAT IS ALLEGED
TO BE THE CALIFORNIA PRACTICE, WITH LEAVE OF THE COURT BROUGHT A CROSS
ACTION AGAINST THE CORPORATION, BY SERVICE OF A CROSS-COMPLAINT UPON
THE CORPORATION'S ATTORNEY OF RECORD IN THE PENDING SUIT, TO RECOVER
FOR THE CONVERSION OF CHATTELS.  JUDGMENT IN THE CROSS-ACTION, TAKEN BY
DEFAULT, WAS FOLLOWED BY DISMISSAL OF THE CORPORATION'S SUIT AND IS THE
JUDGMENT WHICH IS THE SUBJECT OF THE PRESENT SUIT.  A MOTION TO OPEN
THE DEFAULT AND TO BE ALLOWED TO DEFEND, MADE LATER ON BEHALF OF THE
CORPORATION, WAS CONTESTED AND WAS DENIED BY THE COURT, THE ISSUE BEING
WHETHER THE CROSS-COMPLAINT WAS IN FACT SERVED ON THE PLAINTIFF'S
ATTORNEY. 

THE TRIAL COURT SUSTAINED A GENERAL DEMURRER TO THE COMPLAINT AND
GAVE JUDGMENT DISMISSING THE CAUSE, WHICH THE COURT OF APPEALS
AFFIRMED, 101 S.W.(2D) 1046.  PETITION TO THE TEXAS SUPREME COURT FOR A
WRIT OF ERROR WAS DENIED FOR WANT OF JURISDICTION.  WE GRANTED
CERTIORARI, CF. BAIN PEANUT CO. V. PINSON, 282 U.S. 499, THE QUESTION
BEING AN IMPORTANT ONE OF CONSTITUTIONAL LAW.  OUR WRIT IS PROPERLY
DIRECTED TO THE COURT OF CIVIL APPEALS, IT BEING THE HIGHEST COURT OF
THE STATE IN WHICH A JUDGMENT COULD BE HAD.  BACON V. TEXAS, 163 U.S.
207, 215; SULLIVAN V. TEXAS, 207 U.S. 416; SAN ANTONIO & A.P. RY. CO.
V. WAGNER, 241 U.S. 476; AMERICAN RAILWAY EXPRESS CO. V. LEVEE, 263
U.S. 19. 

THE COURT OF CIVIL APPEALS RESTED ITS DECISION ON A SINGLE GROUND,
WANT OF JURISDICTION OF THE CALIFORNIA COURT OVER THE CORPORATION IN
THE CROSS-ACTION IN WHICH THE JUDGMENT WAS RENDERED.  CONSTRUING THE
CALIFORNIA STATUTES AND DECISIONS WHICH THE COMPLAINT SET OUT, IT
CONCLUDED THAT THEY DID NOT AUTHORIZE SERVICE OF THE COMPLAINT IN THE
CROSS-ACTION UPON THE PLAINTIFF'S ATTORNEY OF RECORD.  IT HELD FURTHER
THAT IN ANY CASE AS THE CORPORATION WAS NOT PRESENT WITHIN THE STATE NO
JURISDICTION COULD BE ACQUIRED OVER IT BY THE SUBSTITUTED SERVICE, AND
THE CALIFORNIA JUDGMENT WAS CONSEQUENTLY WITHOUT DUE PROCESS AND A
NULLITY BEYOND THE PROTECTION OF THE FULL FAITH AND CREDIT CLAUSE.  TO
REVIEW THESE RULINGS WE BROUGHT THE CASE HERE.  CF. WARD V. LOVE
COUNTY, 253 U.S. 17, 25; INDIANA EX REL. ANDERSON V. BRAND, POST, P.
95. 

BY R.S. SEC. 905, 28 U.S.C. 687, ENACTED UNDER AUTHORITY OF THE FULL
FAITH AND CREDIT CLAUSE, ART. IV, SEC. 1 OF THE CONSTITUTION, THE DULY
ATTESTED RECORD OF THE JUDGMENT OF A STATE IS ENTITLED TO SUCH FAITH
AND CREDIT IN EVERY COURT WITHIN THE UNITED STATES AS IT HAS BY LAW OR
USAGE IN THE STATE FROM WHICH IT IS TAKEN.  IF IT APPEARS ON ITS FACE
TO BE A RECORD OF A COURT OF GENERAL JURISDICTION, SUCH JURISDICTION
OVER THE CAUSE AND THE PARTIES IS TO BE PRESUMED UNLESS DISPROVED BY
EXTRINSIC EVIDENCE, OR BY THE RECORD ITSELF.  HANLEY V. DONOGHUE, 116
U.S. 1; KNOWLES V. GASLIGHT & COKE CO., 19 WALL.  58; SETTLEMIER V.
SULLIVAN, 97 U.S. 444.  BUT IN A SUIT UPON THE JUDGMENT OF ANOTHER
STATE THE JURISDICTION OF THE COURT WHICH RENDERED IT IS OPEN TO
JUDICIAL INQUIRY, CHICAGO LIFE INSURANCE CO. V. CHERRY, 244 U.S. 25,
AND WHEN THE MATTER OF FACT OR LAW ON WHICH JURISDICTION DEPENDS WAS
NOT LITIGATED IN THE ORIGINAL SUIT IT IS A MATTER TO BE ADJUDICATED IN
THE SUIT FOUNDED UPON THE JUDGMENT.  THOMPSON V. WHITMAN, 18 WALL. 
457.  HERE THE FACT OF THE SERVICE OF THE COMPLAINT UPON THE ATTORNEY
IS ALLEGED BY THE PETITIONER AND ADMITTED BY THE DEMURRER, BUT THE
COURT'S CONCLUSION THAT THE CALIFORNIA COURT WAS WITHOUT JURISDICTION,
RESTING IN PART UPON ITS CONSTRUCTION OF THE CALIFORNIA STATUTE,
PRESENTS AN ISSUE NOT LITIGATED IN THE CALIFORNIA SUIT WHICH MUST BE
DETERMINED IN THE PRESENT ONE. 

CONGRESS HAS NOT PRESCRIBED THE MANNER IN WHICH THE LEGAL EFFECT OF
THE JUDGMENT AND THE PROCEEDINGS ON WHICH IT IS FOUNDED IN THE STATE
WHERE RENDERED ARE TO BE ASCERTAINED BY THE COURTS OF ANOTHER STATE. 
IT HAS LEFT THAT TO THE APPLICABLE PROCEDURE OF THE COURTS IN WHICH
THEY ARE DRAWN IN QUESTION.  WHERE THEY ARE IN ISSUE THIS COURT, IN THE
EXERCISE OF ITS APPELLATE JURISDICTION TO REVIEW CASES COMING TO IT
FROM STATE COURTS, TAKES JUDICIAL NOTICE OF THE LAW OF THE SEVERAL
STATES TO THE SAME EXTENT THAT SUCH NOTICE IS TAKEN BY THE COURT FROM
WHICH THE APPEAL IS TAKEN.  "WHATEVER IS MATTER OF LAW IN THE COURT
APPEALED FROM IS MATTER OF LAW HERE, AND WHATEVER WAS MATTER OF FACT IN
THE COURT APPEALED FROM IS MATTER OF FACT HERE."  HANLEY V. DONOGHUE,
SUPRA, 6. 

ACCORDING TO TEXAS LAW THE LEGAL EFFECT OF THE JUDGMENT OF ANOTHER
STATE, ON WHICH SUIT IS BROUGHT, IS TO BE DETERMINED BY THE COURT, NOT
THE JURY.  BUT A SUITOR WHO ASSERTS THAT THE FORCE AND EFFECT OF THE
JUDGMENT IS DIFFERENT FROM THAT OF A SIMILAR JUDGMENT OF THE COURTS OF
THE STATE IS REQUIRED TO ALLEGE SPECIFICALLY AND PROVE AS MATTER OF
FACT THE PARTICULAR LAWS OR USAGE ON WHICH HE RELIES TO ESTABLISH THE
DIFFERENCE, AND ON DEMURRER ONLY THE LAW OR USAGE SPECIFICALLY ALLEGED
WILL BE CONSIDERED IN DETERMINING WHETHER THE LAW OF ANOTHER STATE
DIFFERS FROM THAT OF TEXAS.  PORCHELER V. BRONSON, 50 TEX. 555; GILL V.
EVERMAN, 94 TEX. 209; 59 S.W. 531; NATIONAL BANK OF COMMERCE V. KENNEY,
98 TEX. 293; 83 S.W. 368. 

IN THE PRESENT SUIT PETITIONER, IN CONFORMITY TO THE STATE PROCEDURE,
HAS SET OUT IN HIS COMPLAINT THE CALIFORNIA STATUTES AND THE CITATIONS
OF THE DECISIONS OF CALIFORNIA COURTS WHICH HE CONTENDS ESTABLISH THE
LAW OF THAT STATE THAT A CROSS-ACTION IN A PENDING SUIT MAY BE BEGUN BY
SERVICE OF A CROSS-COMPLAINT UPON THE PLAINTIFF'S ATTORNEY.  THE
QUESTION THUS RAISED UPON DEMURRER FOR DECISION BY THE COURT IS THE
LEGAL EFFECT IN CALIFORNIA OF THE SERVICE, AND HENCE OF THE JUDGMENT
FOUNDED UPON IT.  WHETHER THE QUESTION BE REGARDED AS ONE OF FACT OR
MORE PRECISELY AND ACCURATELY AS A QUESTION OF LAW TO BE DETERMINED AS
ARE OTHER QUESTIONS OF LAW, ALTHOUGH PROCEDURAL EXIGENCIES REQUIRE IT
TO BE PRESENTED BY THE PLEADING AND PROOF, AS ARE ISSUES OF FACT, IT IS
ONE ARISING UNDER THE CONSTITUTION AND A STATUTE OF THE UNITED STATES
WHICH COMMANDS THAT SUCH FAITH AND CREDIT SHALL BE GIVEN BY EVERY COURT
TO THE CALIFORNIA PROCEEDINGS "AS THEY HAVE BY LAW OR USAGE" OF THAT
STATE.  AND SINCE THE EXISTENCE OF THE FEDERAL RIGHT TURNS ON THE
MEANING AND EFFECT OF THE CALIFORNIA STATUTE, THE DECISION OF THE TEXAS
COURT ON THAT POINT, WHETHER OF LAW OR OF FACT, IS REVIEWABLE HERE. 
STANLEY V. SCHWALBY, 162 U.S. 255, 274, 277-279; SOUTHERN PACIFIC CO.
V. SCHUYLER, 227 U.S. 601, 611; CRESWILL V. KNIGHTS OF PYTHIAS, 225
U.S. 246, 261; ANCIENT EGYPTIAN ORDER V. MICHAUX, 279 U.S. 737, 744
746; NORRIS V. ALABAMA, 294 U.S. 587, 590; SEE NORTHERN PACIFIC R. CO.
V. NORTH DALOTA, 236 U.S. 585, 593; CF. UNION PACIFIC R. CO. V. PUBLIC
SERVICE COMM'N, 248 U.S. 67, 69; WARD V. LOVE COUNTY, SUPRA, 22; TRUAX
V. CORRIGAN, 257 U.S. 312, 324; DAVIS V. WECHSLER, 263 U.S. 22, 24;
PATTERSON V. ALABAMA, 294 U.S. 600, 602. 

WHILE THIS COURT REEXAMINES SUCH AN ISSUE WITH DEFERENCE AFTER ITS
DETERMINATION BY A STATE COURT, IT CANNOT, IF THE LAWS AND CONSTITUTION
OF THE UNITED STATES ARE TO BE OBSERVED, ACCEPT AS FINAL THE DECISION
OF THE STATE TRIBUNAL AS TO MATTERS ALLEGED TO GIVE RISE TO THE
ASSERTED FEDERAL RIGHT.  THIS IS ESPECIALLY THE CASE WHERE THE DECISION
IS RESTED, NOT ON LOCAL LAW OR MATTERS OF FACT OF THE USUAL TYPE, WHICH
ARE PECULIARLY WITHIN THE COGNIZANCE OF THE LOCAL COURTS, BUT UPON THE
LAW OF ANOTHER STATE, AS READILY DETERMINED HERE AS IN A STATE COURT. 
HUNTINGTON V. ATTRILL, 146 U.S. 657, 684; YARBOROUGH V. YARBOROUGH, 168
S.C. 46; 166 S.E. 877; 290 U.S. 202. 

IN RULING THAT THE SERVICE IN THE CALIFORNIA SUIT WAS UNAUTHORIZED,
THE COURT OF CIVIL APPEALS SAID: 

"THE CROSS ACTION WAS NOT AN ANCILLARY PROCEEDING, BUT AN INDEPENDENT
SUIT IN WHICH A FINAL JUDGMENT COULD BE RENDERED WITHOUT AWAITING A
DECISION IN THE ORIGINAL SUIT.  FARRAR V. STEENSBURG, 173 CAL. 94, 159
PAC. 707.  IT IS WELL SETTLED IN THIS STATE THAT A CROSS ACTION
OCCUPIES THE ATTITUDE OF AN INDEPENDENT SUIT AND REQUIRES SERVICE OF
THE CROSS ACTION UPON THE CROSS DEFENDANT.  HARRIS V. SCHLINKE, 95 TEX.
88.  THIS BEING SO, IN THE ABSENCE OF A WAIVER OF SERVICE, OR AN
APPEARANCE BY THE CROSS DEFENDANT, PERSONAL SERVICE ON THE CROSS
DEFENDANT MUST BE HAD TO CONFER JURISDICTION UPON THE COURT TO
DETERMINE THE MATTER AND RENDER JUDGMENT IN THE CASE."  BUT THE
QUESTION PRESENTED BY THE PLEADINGS IS THE STATUS OF A CROSS-ACTION
UNDER THE CALIFORNIA STATUTES, NOT UNDER THOSE OF TEXAS.  WE THINK ITS
STATUS IS ADEQUATELY DISCLOSED BY THE CALIFORNIA STATUTES AND DECISIONS
PLEADED BY PETITIONER, AND IS THAT FOR WHICH HE CONTENDS. 

PROVIDES THAT A DEFENDANT MAY SECURE AFFIRMATIVE RELIEF UPON "CROSS
COMPLAINT" WHICH "MUST BE SERVED UPON THE PARTIES AFFECTED THEREBY,"
AND REQUIRES SERVICE OF "SUMMONS UPON THE CROSS-COMPLAINT" ONLY UPON
SUCH PARTIES AS "HAVE NOT APPEARED IN THE ACTION."  FN1  ARGUING THAT
"ACTION" MEANS ONLY "CROSS-ACTION" AND NOT THE ORIGINAL ACTION BROUGHT
BY THE PLAINTIFF, THE TEXAS COURT CONCLUDED THAT A PLAINTIFF WHO HAS
NOT APPEARED IN THE CROSS-ACTION MUST BE SERVED WITH SUMMONS "AS UPON
THE COMMENCEMENT OF AN ORIGINAL ACTION."  BUT THE WORD "ACTION," EVEN
IF SUSCEPTIBLE OF SUCH MEANING, CANNOT BE SO INTERPRETED IN THE FACE OF
THE PLEADED CALIFORNIA DECISIONS WHICH HOLD THAT A CROSS-COMPLAINT MAY
BE SERVED ON THE ATTORNEY OF ONE WHO IS ALREADY A PARTY TO THE ORIGINAL
ACTION.  FARRAR V. STEENBERGH, 173 CAL. 94; 159 P. 707; WOOD V.
JOHNSTON, 8 CAL. APP. 258; 96 P. 508; RITTER V. BRAASH, 11 CAL. APP.
258; 104 P. 592. 

RESIDENT OR NON-RESIDENT, HAS AN ATTORNEY IN AN ACTION, "THE SERVICE OF
PAPERS, WHEN REQUIRED, MUST BE UPON THE ATTORNEY INSTEAD OF THE PARTY,
EXCEPT SERVICE OF SUBPOENAS, OF WRITS AND OTHER PROCESS ISSUED IN THE
SUIT, AND OF PAPERS TO BRING HIM INTO CONTEMPT."  FN2  THE COURT OF
CIVIL APPEALS CONSTRUED THIS SECTION AS REQUIRING "SERVICE OF
SUBPOENAS, OF WRITS, AND OTHER PROCESS ISSUED IN THE SUIT" UPON THE
PARTY RATHER THAN THE ATTORNEY, AND AS INCLUDING THE CROSS-COMPLAINT IN
THE TERMS "WRIT" AND "PROCESS."  BUT ASSUMING THAT A CROSS-COMPLAINT
SERVED WITHOUT SUMMONS MAY BE SO CHARACTERIZED, IT IS CLEAR THAT THE
COMPLAINT UPON THE ATTORNEY FOR A PARTY WHICH, AS WE HAVE SEEN, SEC.
442 PERMITS.  SECTION 1015 DIRECTS SERVICE UPON THE ATTORNEY OF ALL BUT
THE THREE TYPES OF PAPERS EXCEPTED, BUT SAYS NOTHING AS TO THE
EFFECTIVENESS OF SERVICE OF THOSE PAPERS UPON HIM.  SECTION 1011, SET
OUT IN THE PLEADING THOUGH NOT REFERRED TO IN THE COURT'S OPINION,
READS, "NOTICES AND PAPERS, WHEN AND HOW SERVED.  THE SERVICE MAY BE
PERSONAL, BY DELIVERY TO THE PARTY OR ATTORNEY ON WHOM THE SERVICE IS
REQUIRED TO BE MADE...." 

THE QUESTION WHETHER SEC. 1015 DOES FORBID SERVICE OF A CROSS
COMPLAINT ON THE ATTORNEY HAS BEEN DEFINITELY ANSWERED IN THE NEGATIVE
BY THE SUPREME COURT OF CALIFORNIA, WHICH, IN FARRAR V. STEENBERGH,
SUPRA, 97, HELD, "SERVICE OF A CROSS-COMPLAINT UPON A PLAINTIFF WHO
APPEARS BY AN ATTORNEY IS NOT MADE BY A SUMMONS TO THE PLAINTIFF, BUT
BY DELIVERY OF A COPY OF THE CROSS-COMPLAINT TO THE ATTORNEY."  UPON
THIS GROUND THE CALIFORNIA DISTRICT COURT OF APPEALS, IN CASES ON WHICH
PETITIONER RELIES, HAS SUSTAINED JUDGMENTS TAKEN UPON DEFAULT IN A
CROSS-ACTION BEGUN BY SERVICE OF THE CROSS-COMPLAINT ON THE PLAINTIFF'S
ATTORNEY.  RITTER V. BRAASH, SUPRA; WOOD V. JOHNSTON, SUPRA.  UPON ALL
THE PLEADED EVIDENCE OF THE CALIFORNIA LAW, TO THE CONSIDERATION OF
WHICH WE ARE RESTRICTED BY THE PRESENT STATE OF THE RECORD, WE THINK
THE ONLY INFERENCE TO BE DRAWN IS THAT THE SERVICE IN THE CALIFORNIA
SUIT WAS AUTHORIZED BY CALIFORNIA LAW.    THERE IS NOTHING IN THE
FOURTEENTH AMENDMENT TO PREVENT A STATE FROM ADOPTING A PROCEDURE BY
WHICH A JUDGMENT IN PERSONAM MAY BE RENDERED IN A CROSS-ACTION AGAINST
A PLAINTIFF IN ITS COURTS, UPON SERVICE OF PROCESS OR OF APPROPRIATE
PLEADING UPON HIS ATTORNEY OF RECORD.  THE PLAINTIFF HAVING, BY HIS
VOLUNTARY ACT IN DEMANDING JUSTICE FROM THE DEFENDANT, SUBMITTED
HIMSELF TO THE JURISDICTION OF THE COURT, THERE IS NOTHING ARBITRARY OR
UNREASONABLE IN TREATING HIM AS BEING THERE FOR ALL PURPOSES FOR WHICH
JUSTICE TO THE DEFENDANT REQUIRES HIS PRESENCE.  IT IS THE PRICE WHICH
THE STATE MAY EXACT AS THE CONDITION OF OPENING ITS COURTS TO THE
PLAINTIFF.  FRANK L. YOUNG CO. V. MCNEAL-EDWARDS CO., 283 U.S. 398,
400; CF. CHICAGO & N.W. RY. CO. V. LINDELL, 281 U.S. 14, 17. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  "WHENEVER THE DEFENDANT SEEKS AFFIRMATIVE RELIEF AGAINST ANY
PARTY, RELATING TO OR DEPENDING UPON THE CONTRACT, TRANSACTION, MATTER,
HAPPENING OR ACCIDENT UPON WHICH THE ACTION IS BROUGHT, OR AFFECTING
THE PROPERTY TO WHICH THE ACTION RELATES, HE MAY, IN ADDITION TO HIS
ANSWER, FILE AT THE SAME TIME, OR BY PERMISSION OF THE COURT
SUBSEQUENTLY, A CROSS-COMPLAINT.  THE CROSS-COMPLAINT MUST BE SERVED
UPON THE PARTIES AFFECTED THEREBY, AND SUCH PARTIES MAY DEMUR OR ANSWER
THERETO AS TO THE ORIGINAL COMPLAINT.  IF ANY OF THE PARTIES AFFECTED
BY THE CROSS-COMPLAINT HAVE NOT APPEARED IN THE ACTION, A SUMMONS UPON
THE CROSS-COMPLAINT MUST BE ISSUED AND SERVED UPON THEM IN THE SAME
MANNER AS UPON THE COMMENCEMENT OF AN ORIGINAL ACTION." 

FN2  "WHEN A PLAINTIFF OR A DEFENDANT, WHO HAS APPEARED, RESIDES OUT
OF THE STATE, AND HAS NO ATTORNEY IN THE ACTION OR PROCEEDING, THE
SERVICE MAY BE MADE ON THE CLERK OR ON THE JUSTICE WHERE THERE IS NO
CLERK, FOR HIM.  BUT IN ALL CASES WHERE A PARTY HAS AN ATTORNEY IN THE
ACTION OR PROCEEDING, THE SERVICE OF PAPERS, WHEN REQUIRED, MUST BE
UPON THE ATTORNEY INSTEAD OF THE PARTY, EXCEPT SERVICE OF SUBPENAS, OF
WRITS, AND OTHER PROCESS ISSUED IN THE SUIT, AND OF PAPERS TO BRING HIM
INTO CONTEMPT.  IF THE SOLE ATTORNEY FOR A PARTY IS REMOVED OR
SUSPENDED FROM PRACTICE, THEN THE PARTY HAS NO ATTORNEY WITHIN THE
MEANING OF THIS SECTION.  IF HIS SOLE ATTORNEY HAS NO KNOWN OFFICE IN
THIS STATE, NOTICES AND PAPERS MAY BE SERVED BY LEAVING A COPY THEREOF
WITH THE CLERK OF THE COURT OR WITH THE JUSTICE WHERE THERE IS NO
CLERK, UNLESS SUCH ATTORNEY SHALL HAVE FILED IN THE CAUSE AN ADDRESS OF
A PLACE AT WHICH NOTICES AND PAPERS MAY BE SERVED ON HIM, IN WHICH
EVENT THEY MAY BE SERVED AT SUCH PLACE." 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :














COMPANIA ESPANOLA V. NAVEMAR, 303 U.S. 68 


NO. 242.  ARGUED JANUARY 7, 10, 1938.  - DECIDED JANUARY 31, 1938.  - 90
F.(2D) 673, REVERSED. 


1.  A VESSEL OF A FRIENDLY GOVERNMENT IN ITS POSSESSION AND SERVICE IS
A PUBLIC VESSEL, EVEN THOUGH ENGAGED IN THE CARRIAGE OF MERCHANDISE FOR
HIRE, AND AS SUCH IS IMMUNE FROM SUIT IN THE COURTS OF ADMIRALTY OF THE
UNITED STATES.  P. 74. 

2.  THIS IMMUNITY THE FRIENDLY GOVERNMENT MAY ASSERT EITHER THROUGH
DIPLOMATIC CHANNELS OR AS A CLAIMANT IN THE COURTS OF THE UNITED
STATES.  ID. 

IF THE CLAIM IS ALLOWED BY THE EXECUTIVE BRANCH OF OUR GOVERNMENT, IT
IS THEN THE DUTY OF THE COURTS TO RELEASE THE VESSEL UPON APPROPRIATE
SUGGESTION BY THE ATTORNEY GENERAL OF THE UNITED STATES, OR OTHER
OFFICER ACTING UNDER HIS DIRECTION. 

THE FOREIGN GOVERNMENT IS ALSO ENTITLED AS OF RIGHT UPON A PROPER
SHOWING, TO APPEAR IN A PENDING SUIT, THERE TO ASSERT ITS CLAIM TO THE
VESSEL, AND TO RAISE THE JURISDICTIONAL QUESTION IN ITS OWN NAME OR
THAT OF ITS ACCREDITED AND RECOGNIZED REPRESENTATIVE. 

3.  THE DISTRICT COURT TOOK POSSESSION OF A SPANISH VESSEL ON A LIBEL
BY ONE CLAIMING TO BE THE OWNER, WHO ALLEGED WRONGFUL DISPOSSESSION BY
MEMBERS OF THE CREW.  THE SPANISH AMBASSADOR, BY A VERIFIED SUGGESTION,
CHALLENGED THE JURISDICTION ON THE GROUND THAT THE VESSEL, BEFORE THE
ARREST, WAS A PUBLIC VESSEL IN POSSESSION OF THE SPANISH GOVERNMENT AND
SO IMMUNE FROM PROCESS.  HE ALSO CLAIMED THAT THE SPANISH GOVERNMENT
WAS OWNER AND ENTITLED TO POSSESSION BY VIRTUE OF A SPANISH DECREE OF
ATTACHMENT.  THE DEPARTMENT OF STATE HAD REFUSED TO ACT IN THE MATTER
AND HAD REFERRED THE AMBASSADOR TO THE COURTS.  AT A HEARING UPON THE
SUGGESTION AND REPLY AFFIDAVITS, THE DISTRICT COURT FOUND THAT NO ONE
HAD TAKEN POSSESSION IN BEHALF OF THE SPANISH GOVERNMENT, ALTHOUGH
ENDORSEMENTS HAD BEEN MADE BY SPANISH CONSULS IN FOREIGN PORTS, ON THE
SHIP'S ROLL AND REGISTER STATING THAT THE SHIP HAD BECOME THE PROPERTY
OF THE SPANISH STATE THROUGH AN ATTACHMENT.  HELD: 

(1)  THAT THE AMBASSADOR'S APPLICATION WAS PROPERLY ENTERTAINED.  P.
75. 

(2) THE DEPARTMENT OF STATE HAVING DECLINED TO ACT, THE WANT OF
ADMIRALTY JURISDICTION BECAUSE OF THE ALLEGED PUBLIC STATUS OF THE
VESSEL AND THE RIGHT OF THE SPANISH GOVERNMENT TO DEMAND POSSESSION OF
THE VESSEL AS OWNER IF IT SO ELECTED, WERE APPROPRIATE SUBJECTS FOR
JUDICIAL INQUIRY UPON PROOF OF THE MATTERS ALLEGED.  ID. 

(3)  THE SUGGESTION, THOUGH SUFFICIENT AS A STATEMENT OF THE
CONTENTIONS MADE, WAS NOT PROOF OF ITS ALLEGATIONS.  ID. 

(4)  THE DECREE OF ATTACHMENT, BEING IN INVITUM, DID NOT DISPOSSESS
THE SHIPOWNER, A TAKING OF ACTUAL POSSESSION BY SOME ACT OF PHYSICAL
DOMINION OR CONTROL IN BEHALF OF THE SPANISH GOVERNMENT OR SOME ACT OF
RECOGNITION BY THE SHIP'S OFFICERS WAS NEEDFUL.  ID. 

(5)  THE AMBASSADOR SHOULD BE PERMITTED TO INTERVENE AS CLAIMANT.  P.
76. 

COMPANIA ESPANOLA DE NAVEGACION MARITIMA, S.A., V. THE NAVEMAR ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 302 U.S. 669, TO REVIEW THE REVERSAL OF AN ORDER OF THE
DISTRICT COURT REFUSING LEAVE TO THE AMBASSADOR OF THE REPUBLIC OF
SPAIN TO APPEAR AS CLAIMANT OF A SHIP IN AN ADMIRALTY CASE.  THE COURT
BELOW DEEMED THE AMBASSADOR'S VERIFIED SUGGESTION CONCLUSIVE AND
ORDERED THE LIBEL DISMISSED. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN A SUIT IN ADMIRALTY, BROUGHT IN A DISTRICT COURT BY THE ALLEGED
OWNER TO RECOVER POSSESSION OF A SPANISH MERCHANT VESSEL, THE SPANISH
AMBASSADOR ASKED LEAVE TO INTERVENE AS CLAIMANT ON THE BASIS OF AN
AFFIDAVIT OF THE SPANISH ACTING CONSUL GENERAL SUGGESTING THAT WHEN THE
SUIT WAS BROUGHT THE VESSEL WAS THE PROPERTY OF THE REPUBLIC OF SPAIN,
BY VIRTUE OF A DECREE OF ATTACHMENT PROMULGATED BY THE PRESIDENT OF THE
REPUBLIC, APPROPRIATING THE VESSEL TO THE PUBLIC USE, AND THAT IT WAS
THEN IN THE POSSESSION OF THE SPANISH GOVERNMENT.  THE PRINCIPAL
QUESTION FOR DECISION IS WHETHER IT WAS THE DUTY OF THE COURT, UPON
PRESENTATION OF THE SUGGESTION, TO DISMISS THE LIBEL FOR WANT OF
ADMIRALTY JURISDICTION. 

PETITIONER, A SPANISH CORPORATION, BROUGHT THE PRESENT SUIT IN
ADMIRALTY IN THE DISTRICT COURT FOR EASTERN NEW YORK AGAINST THE
SPANISH STEAMSHIP "NAVEMAR," FIVE MEMBERS OF HER CREW, AND ALL PERSONS
CLAIMING AN INTEREST IN HER, TO RECOVER POSSESSION OF THE VESSEL.  THE
LIBEL ALLEGED THAT PETITIONER WAS OWNER OF THE VESSEL, WHICH WAS WITHIN
THE TERRITORIAL JURISDICTION OF THE COURT; AND THAT WHILE SHE WAS IN
PETITIONER'S POSSESSION THE INDIVIDUAL RESPONDENTS, ACTING AS A
COMMITTEE OF THE CREW, HAD WRONGFULLY AND FORCIBLY SEIZED, AND HAD
SINCE RETAINED POSSESSION OF THE VESSEL.  AFTER HEARING EVIDENCE IN
SUPPORT OF THE PETITION, THE DISTRICT COURT RENDERED ITS DECREE UPON
DEFAULT, DIRECTING THE MARSHAL TO PLACE LIBELANT IN POSSESSION. 

THEREUPON THE SPANISH AMBASSADOR FILED A SUGGESTION IN THE CAUSE,
CHALLENGING THE JURISDICTION OF THE COURT ON THE GROUND THAT THE
"NAVEMAR" WAS A PUBLIC VESSEL OF THE REPUBLIC OF SPAIN, NOT SUBJECT TO
JUDICIAL PROCESS OF THE COURT, AND ASKING THAT IT DIRECT DELIVERY OF
THE VESSEL TO THE SPANISH ACTING CONSUL GENERAL IN NEW YORK.  THE
SUGGESTION ALLEGED THAT WHEN THE SUIT WAS BROUGHT THE "NAVEMAR" WAS THE
PROPERTY OF THE SPANISH GOVERNMENT BY VIRTUE OF ITS DECREE OF OCTOBER
10, 1936, AND WAS IN THE POSSESSION OF THE REPUBLIC OF SPAIN.  THE
DISTRICT COURT ISSUED ITS ORDER TO SHOW CAUSE WHY THE DEFAULT SHOULD
NOT BE OPENED AND THE AMBASSADOR PERMITTED TO APPEAR SPECIALLY AS
CLAIMANT OF THE VESSEL.  AFTER A HEARING THE COURT DENIED THE
APPLICATION BUT WITH LEAVE TO THE AMBASSADOR TO MAKE FURTHER
APPLICATION UPON FULLER PRESENTATION OF THE FACTS SHOWING THE OWNERSHIP
AND POSSESSION OF THE VESSEL BY THE SPANISH GOVERNMENT. 

MEANWHILE THE DEPARTMENT OF STATE HAD REFUSED TO ACT UPON THE SPANISH
GOVERNMENT'S CLAIM OF POSSESSION AND OWNERSHIP OF THE "NAVEMAR," HAD
DECLINED TO HONOR THE REQUEST OF THE AMBASSADOR THAT REPRESENTATIONS BE
MADE IN THE PENDING SUIT BY THE ATTORNEY GENERAL OF THE UNITED STATES
IN BEHALF OF THE SPANISH GOVERNMENT, AND HAD ADVISED THE AMBASSADOR
THAT HIS GOVERNMENT WAS ENTITLED "TO APPEAR DIRECTLY BEFORE THE COURT
IN A CASE OF THIS CHARACTER." 

A SECOND APPLICATION BY THE AMBASSADOR FOR LEAVE TO APPEAR AS A
CLAIMANT UPON A VERIFIED SUGGESTION, STATING ADDITIONAL CIRCUMSTANCES
RELIED UPON TO ESTABLISH POSSESSION OF THE VESSEL BY THE REPUBLIC OF
SPAIN, WAS DENIED.  18 F.SUPP.  153.  ON APPEAL THE COURT OF APPEALS
FOR THE SECOND CIRCUIT, AFTER RESTRICTING THE APPEAL TO THE ORDER OF
THE DISTRICT COURT ON THE SECOND APPLICATION, REVERSED THAT ORDER AND
DIRECTED THAT THE LIBEL BE DISMISSED.  90 F.(2D) 673.  WE GRANTED
CERTIORARI, BECAUSE THE CASE IS OF PUBLIC IMPORTANCE AND BECAUSE OF
ALLEGED CONFLICT OF THE DECISION BELOW WITH OUR DECISION IN THE PESARO,
255 U.S. 216, AND WITH THAT OF THE COURT OF APPEALS FOR THE FOURTH
CIRCUIT IN THE ATTUALITA, 238 FED. 909. 

RESPONDENT'S SUGGESTION ON THE SECOND APPLICATION PRESENTED TWO
CONTENTIONS:  ONE, A CHALLENGE TO THE JURISDICTION ON THE GROUND THAT
THE "NAVEMAR" WAS A PUBLIC VESSEL, IMMUNE FROM ARREST AND PROCESS OF
THE COURT; THE OTHER, THAT THE SPANISH GOVERNMENT WAS OWNER OF THE
VESSEL AND ENTITLED TO HER POSSESSION BY VIRTUE OF THE DECREE OF
ATTACHMENT. 

IN ADDITION TO THE GENERAL ALLEGATIONS OF OWNERSHIP AND POSSESSION OF
THE VESSEL BY THE SPANISH GOVERNMENT IN THE FIRST APPLICATION, THE
SUGGESTION IN THE SECOND SET UP THE ACQUISITION OF POSSESSION IN BEHALF
OF THE SPANISH GOVERNMENT BY SPECIFIC ACTS OF ITS CONSULAR OFFICERS IN
ARGENTINA AND IN NEW YORK.  IT ALLEGED THAT ON OCTOBER 26, 1936, THE
SPANISH CONSUL AT ROSARIO, ARGENTINA, HAD ENDORSED ON THE SHIP'S ROLL A
STATEMENT THAT "THROUGH A CABLE DATED 26 OF THE INST MONTH FROM THE
DIRECTOR GENERAL OF THE MERCHANT MARINE THIS SHIP HAS BECOME THE
PROPERTY OF THE STATE THROUGH ATTACHMENT ACCORDING TO THE DECREE OF
OCT. 10, 1936," AND THAT ON OCTOBER 28 THE SPANISH ACTING CONSUL
GENERAL AT BUENOS AIRES HAD MADE A SIMILAR ENDORSEMENT ON THE SHIP'S
REGISTER.  IT WAS ALSO ALLEGED THAT ON ARRIVAL IN NEW YORK IN NOVEMBER
THE SPANISH ACTING CONSUL GENERAL AT THAT PORT, BY DIRECTION OF THE
AMBASSADOR, HAD INSTRUCTED THE MASTER OF THE "NAVEMAR" "TO AWAIT AND
ABIDE FURTHER INSTRUCTIONS  ...  AS REGARDS ANY FURTHER USE OF THE"
VESSEL, AND THAT ON NOVEMBER 28 HE HAD INSTRUCTED THE MASTER TO RENDER
A DETAILED ACCOUNT OF THE EXPENSES OF THE "NAVEMAR" AND OF MINOR
REPAIRS THAT SHE MIGHT REQUIRE.  THERE WAS NO AVERMENT THAT THE ALLEGED
SEIZURE BY THE MEMBERS OF THE CREW WAS AN ACT OF OR IN BEHALF OF THE
SPANISH GOVERNMENT. 

THE DISTRICT COURT ALLOWED A FULL HEARING UPON THE SUGGESTION AND
UPON REPLY AFFIDAVITS SUBMITTED BY LIBELANT, IN THE COURSE OF WHICH
THERE WAS OPPORTUNITY FOR THE PARTIES TO PRESENT PROOF OF ALL THE
RELEVANT FACTS.  CF. EX PARTE NEW YORK, 256 U.S. 503.  THE COURT FOUND
THAT NO ONE HAD TAKEN POSSESSION OF THE "NAVEMAR" IN BEHALF OF THE
SPANISH GOVERNMENT.  IT POINTED OUT THAT NEITHER THE SHIP'S ROLL NOR
ITS REGISTER IS A DOCUMENT OF TITLE OR POSSESSION, THE SHIP'S ROLL
BEING MERELY A RECORD, IN THE CASE OF SPANISH VESSELS USUALLY DEPOSITED
WITH THE SPANISH CONSUL WHILE IN PORT, SHOWING ARRIVALS AND SAILINGS OF
THE VESSEL, THE KIND OF CARGO CARRIED, THE LIST OF PASSENGERS, AND THE
ENROLLMENT OF THE MEMBERS OF THE CREW, AND THE SHIP'S REGISTER BEING
ONLY A RECORD OF THE NATIONALITY OF THE VESSEL AS DETERMINED BY THE
PLACE OF HER HOME PORT.  IT FOUND THAT NONE OF THE CONSULAR OFFICERS
MENTIONED HAD DONE ANY ACT PURPORTING TO TAKE POSSESSION OF THE VESSEL;
THAT NONE OF THEM HAD INFORMED THE MASTER THAT HE WISHED TO TAKE
POSSESSION OR HAD ANY INTENTION OF DOING SO; THAT THE VESSEL HAD
PROCEEDED UNDER COMMAND OF HER MASTER UPON HER VOYAGE FROM BUENOS AIRES
TO NEW YORK, MANNED BY OFFICERS AND CREW IN THE EMPLOY OF PETITIONER;
THAT UPON ARRIVAL, THE MASTER, UNDER DIRECTION OF THE SHIP'S AGENT, HAD
DISCHARGED CARGO; AND THAT BEFORE DISCHARGE THE FREIGHT MONEY WAS PAID
BY THE CONSIGNEES TO THE AGENTS OF THE TIME CHARTERER IN NEW YORK. 

THE DISTRICT COURT, UPON THIS AND OTHER EVIDENCE NOT NECESSARY TO
DETAIL, CONCLUDED THAT THE "NAVEMAR" WAS NEVER IN POSSESSION OF THE
SPANISH GOVERNMENT BEFORE HER SEIZURE BY THE MEMBERS OF THE CREW IN THE
TERRITORIAL WATERS OF THE UNITED STATES, AND THAT SHE WAS NOT A VESSEL
IN THE PUBLIC SERVICE OF THE SPANISH GOVERNMENT. 

THE COURT OF APPEALS, WITHOUT REVIEWING THE FINDINGS OF THE DISTRICT
COURT, OR THE EVIDENCE, ADVERTED TO THE ALLEGATION OF THE FIRST
SUGGESTION, SUBSTANTIALLY REPEATED ON INFORMATION AND BELIEF IN THE
SECOND, THAT THE SPANISH CONSUL AT ROSARIO "PURSUANT TO INSTRUCTIONS
FROM THE DIRECTOR GENERAL OF THE SPANISH MERCHANT MARINE, TOOK
POSSESSION OF THE  ...  NAVEMAR IN THE NAME OF THE REPUBLIC OF SPAIN
...  WHEREBY THE  ...  NAVEMAR THEN AND THERE BECAME AND AT ALL TIMES
SINCE HAS REMAINED THE PROPERTY OF THE GOVERNMENT OF THE REPUBLIC OF
SPAIN."  DECLARING THAT THE COURT WAS BOUND TO ACCEPT THIS ALLEGATION
AS CONCLUSIVE, IT HELD THAT THE VESSEL MUST BE TAKEN TO BE A PUBLIC
VESSEL OWNED BY AND IN THE POSSESSION OF THE SPANISH GOVERNMENT, AND AS
SUCH IMMUNE FROM SUIT IN THE COURTS OF THE UNITED STATES. 

THIS WE THINK WAS A MISTAKEN VIEW OF THE FORCE AND EFFECT OF THE
SUGGESTION.  ADMITTEDLY A VESSEL OF A FRIENDLY GOVERNMENT IN ITS
POSSESSION AND SERVICE IS A PUBLIC VESSEL, EVEN THOUGH ENGAGED IN THE
CARRIAGE OF MERCHANDISE FOR HIRE, AND AS SUCH IS IMMUNE FROM SUIT IN
THE COURTS OF ADMIRALTY OF THE UNITED STATES.  BERIZZI BROS. CO. V. THE
PESARO, 271 U.S. 562; CF. THE EXCHANGE, 7 CRANCH 116.  AND IN A CASE
SUCH AS THE PRESENT IT IS OPEN TO A FRIENDLY GOVERNMENT TO ASSERT THAT
SUCH IS THE PUBLIC STATUS OF THE VESSEL AND TO CLAIM HER IMMUNITY FROM
SUIT, EITHER THROUGH DIPLOMATIC CHANNELS OR, IF IT CHOOSES, AS A
CLAIMANT IN THE COURTS OF THE UNITED STATES. 

IF THE CLAIM IS RECOGNIZED AND ALLOWED BY THE EXECUTIVE BRANCH OF THE
GOVERNMENT, IT IS THEN THE DUTY OF THE COURTS TO RELEASE THE VESSEL
UPON APPROPRIATE SUGGESTION BY THE ATTORNEY GENERAL OF THE UNITED
STATES, OR OTHER OFFICER ACTING UNDER HIS DIRECTION.  THE CASSIUS, 2
DALL.  365; THE EXCHANGE, SUPRA; THE PIZARRO, 19 FED. CAS. NO. 11,199;
SEE THE CONSTITUTION, L.R. 4 P.D. 39; CF. EX PARTE MUIR, 254 U.S. 522;
THE PARLEMENT BELGE, L.R. 4 P.D. 129.  THE FOREIGN GOVERNMENT IS ALSO
ENTITLED AS OF RIGHT UPON A PROPER SHOWING, TO APPEAR IN A PENDING
SUIT, THERE TO ASSERT ITS CLAIM TO THE VESSEL, AND TO RAISE THE
JURISDICTIONAL QUESTION IN ITS OWN NAME OR THAT OF ITS ACCREDITED AND
RECOGNIZED REPRESENTATIVE.  THE SAPPHIRE, 11 WALL.  164, 167; THE ANNE,
3 WHEAT.  435, 445-446; THE SANTISSIMA TRINIDAD, 7 WHEAT.  283, 353;
COLOMBIA V. CAUCA CO., 190 U.S. 524; EX PARTE TRANSPORTES MARITIMOS,
264 U.S. 105; BERIZZI BROS. CO. V. THE PESARO, SUPRA. 

AFTER REFUSAL OF THE SECRETARY OF STATE TO ACT UPON THE PRESENT
CLAIM, THE AMBASSADOR ADOPTED THE LATTER COURSE.  HIS APPLICATION TO BE
PERMITTED TO APPEAR AND PRESENT THE CLAIM WAS PROPERLY ENTERTAINED BY
THE DISTRICT COURT.  BUT IT WAS NOT BOUND, AS THE COURT OF APPEALS
THOUGHT, TO ACCEPT THE ALLEGATIONS OF THE SUGGESTION AS CONCLUSIVE. 
THE DEPARTMENT OF STATE HAVING DECLINED TO ACT, THE WANT OF ADMIRALTY
JURISDICTION BECAUSE OF THE ALLEGED PUBLIC STATUS OF THE VESSEL AND THE
RIGHT OF THE SPANISH GOVERNMENT TO DEMAND POSSESSION OF THE VESSEL AS
OWNER IF IT SO ELECTED, WERE APPROPRIATE SUBJECTS FOR JUDICIAL INQUIRY
UPON PROOF OF THE MATTERS ALLEGED. 

BUT THE FILED SUGGESTION, THOUGH SUFFICIENT AS A STATEMENT OF THE
CONTENTIONS MADE, WAS NOT PROOF OF ITS ALLEGATIONS.  THIS COURT HAS
EXPLICITLY DECLINED TO GIVE SUCH A SUGGESTION THE FORCE OF PROOF OR THE
STATUS OF A LIKE SUGGESTION COMING FROM THE EXECUTIVE DEPARTMENT OF OUR
GOVERNMENT.  EX PARTE MUIR, SUPRA; THE PESARO, SUPRA.  BERIZZI BROS.
CO. V. THE PESARO, SUPRA, DID NOT HOLD OTHERWISE FOR THERE IT WAS
STIPULATED THAT THE VESSEL, WHEN ARRESTED, WAS OWNED, POSSESSED AND
CONTROLLED BY A FOREIGN GOVERNMENT AND USED BY IT IN CARRYING
MERCHANDISE FOR HIRE.  THE SOLE QUESTION WAS ONE OF LAW, WHETHER, UPON
THE FACTS STIPULATED, THE VESSEL WAS IMMUNE FROM SUIT. 

THE DISTRICT COURT CONCLUDED, RIGHTLY WE THINK, THAT THE EVIDENCE AT
HAND DID NOT SUPPORT THE CLAIM OF THE SUGGESTION THAT THE "NAVEMAR" HAD
BEEN IN THE POSSESSION OF THE SPANISH GOVERNMENT.  THE DECREE OF
ATTACHMENT, WITHOUT MORE, DID NOT OPERATE TO CHANGE THE POSSESSION
WHICH, BEFORE THE DECREE, WAS ADMITTEDLY IN PETITIONER.  TO ACCOMPLISH
THAT RESULT, SINCE THE DECREE WAS IN INVITUM, ACTUAL POSSESSION BY SOME
ACT OF PHYSICAL DOMINION OR CONTROL IN BEHALF OF THE SPANISH
GOVERNMENT, WAS NEEDFUL, THE DAVIS, 10 WALL.  15, 21; LONG V. THE
TAMPICO, 16 FED. 491, 493, 494; THE ATTUALITA, SUPRA; THE CARLO POMA,
259 FED. 369, 370, REVERSED ON OTHER GROUNDS, 255 U.S. 219, OR AT LEAST
SOME RECOGNITION ON THE PART OF THE SHIP'S OFFICERS THAT THEY WERE
CONTROLLING THE VESSEL AND CREW IN BEHALF OF THEIR GOVERNMENT.  FN1
BOTH WERE LACKING, AS WAS SUPPORT FOR ANY CONTENTION THAT THE VESSEL
WAS IN FACT EMPLOYED IN PUBLIC SERVICE.  SEE LONG V. THE TAMPICO,
SUPRA, 493, 494; CF. BERIZZI BROS. CO. V. THE PESARO, SUPRA. 

THE DISTRICT COURT RIGHTLY DECLINED TO TREAT THE SUGGESTION AS
CONCLUSIVE OR SUFFICIENT AS PROOF TO REQUIRE THE COURT TO RELINQUISH
ITS JURISDICTION.  BUT AS THE SUGGESTION WAS TENDERED IN SUPPORT OF AN
APPLICATION TO APPEAR AS A CLAIMANT IN THE SUIT, AND AS IT PUT FORTH A
CLAIM TO TITLE AND RIGHT TO POSSESSION OF THE VESSEL, THE AMBASSADOR
SHOULD HAVE BEEN PERMITTED TO INTERVENE AND, IF SO ADVISED, TO LITIGATE
ITS CLAIMS IN THE SUIT.  IN EX PARTE MUIR, SUPRA, AND IN THE PESARO,
SUPRA, 219, THE AMBASSADOR OF THE INTERVENING GOVERNMENT CHALLENGED THE
JURISDICTION OF THE COURT, BUT DID NOT PLACE HIMSELF OR HIS GOVERNMENT
IN THE ATTITUDE OF A SUITOR.  HERE THE APPLICATION AS CONSTRUED BY THE
TRIAL COURT WAS FOR PERMISSION TO INTERVENE AS A CLAIMANT.  WE THINK
THE APPLICANT SHOULD BE PERMITTED TO OCCUPY THAT POSITION IF SO
ADVISED.    THE DECREE OF THE COURT OF APPEALS WILL BE REVERSED.  THE
RESPONDENT WILL BE PERMITTED TO INTERVENE FOR THE PURPOSE OF ASSERTING
THE SPANISH GOVERNMENT'S OWNERSHIP AND RIGHT TO POSSESSION OF THE
VESSEL, AND THE ORDER OF THE DISTRICT COURT WILL BE MODIFIED
ACCORDINGLY.  REVERSED. 

FN1  IN THE JUPITER, 1924 P. 236, 241, 244(CF. THE JUPITER NO. 2,
1925 P. 69; THE JUPITER NO. 3, 1927 P. 122, 125), AND IN THE RECENTLY
REPORTED THE CRISTINA, 59 LLOYD'S LIST LAW REPORTS 43, 50, ON WHICH
RESPONDENT RELIES, THE POSSESSION TAKEN IN BEHALF OF THE CLAIMANT
GOVERNMENT WAS ACTUAL.  THE JUDGMENT IN THE CRISTINA APPEARS TO HAVE
PROCEEDED ON THAT GROUND.  IN THE JUPITER, IT APPEARED THAT BEFORE THE
SUIT WAS BROUGHT THE MASTER HAD REPUDIATED THE POSSESSION AND OWNERSHIP
OF THE PLAINTIFFS AND HELD THE VESSEL FOR THE CLAIMANT GOVERNMENT.  THE
REPORT OF THE CRISTINA IN THE ADMIRALTY DIVISION, 59 LLOYD'S LIST LAW
REPORTS 1, 3, INDICATES THAT THE MASTER AND CREW WERE IN THE PAY OF THE
SPANISH GOVERNMENT. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















CONN. GENERAL CO. V. JOHNSON, 303 U.S. 77 


NO. 316.  ARGUED JANUARY 14, 1938.  - DECIDED JANUARY 31, 1938.  - 93
CAL. DEC. 4650 -  67 P.2D 675, REVERSED. 


1.  A CORPORATION WHICH IS ALLOWED TO COME INTO A STATE AND THERE
CARRY ON ITS BUSINESS MAY CLAIM, AS AN INDIVIDUAL MAY CLAIM, THE
PROTECTION OF THE FOURTEENTH AMENDMENT AGAINST A SUBSEQUENT APPLICATION
TO IT OF STATE LAW.  P. 79. 

2.  A CONNECTICUT CORPORATION CONDUCTED PART OF ITS LIFE INSURANCE
BUSINESS IN CALIFORNIA UNDER LICENSE FROM THAT STATE AND ALSO ENTERED
INTO CONTRACTS WITH OTHER INSURANCE CORPORATIONS LIKEWISE LICENSED TO
DO BUSINESS IN CALIFORNIA, REINSURING THEM AGAINST LOSS ON POLICIES OF
LIFE INSURANCE EFFECTED BY THEM IN CALIFORNIA AND ISSUED TO RESIDENTS
THERE.  THESE REINSURANCE CONTRACTS WERE ENTERED INTO IN CONNECTICUT,
WHERE THE PREMIUMS WERE PAID AND WHERE THE LOSSES, IF ANY, WERE
PAYABLE. 

HELD THAT, AS APPLIED TO SUCH REINSURANCE BUSINESS, A CALIFORNIA TAX
ON THE PRIVILEGE OF THE CORPORATION TO DO BUSINESS WITHIN THE STATE,
MEASURED BY THE GROSS PREMIUMS RECEIVED, WAS VOID UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.  PP. 78, 82. 

3.  A STATE MAY NOT TAX THE PROPERTY AND ACTIVITIES OF A FOREIGN
CORPORATION WHICH ARE NOT WITHIN ITS BOUNDARIES.  P. 80. 

THE LIMITS PLACED BY THE FOURTEENTH AMENDMENT ON THE STATE'S
JURISDICTION TO TAX ARE TO BE ASCERTAINED BY REFERENCE TO THE INCIDENCE
OF THE TAX UPON ITS OBJECTS RATHER THAN THE ULTIMATE THRUST OF THE
ECONOMIC BENEFITS AND BURDENS OF TRANSACTIONS WITHIN THE STATE WHICH IT
MIGHT BUT DOES NOT TAX. 

CONNECTICUT GENERAL LIFE INSURANCE CO. V. JOHNSON, TREASURER OF
CALIFORNIA. 

APPEAL FROM THE SUPREME COURT OF CALIFORNIA. 

APPEAL FROM JUDGMENTS AFFIRMING THE DISMISSAL ON DEMURRER OF TWO
ACTIONS BY THE ABOVE-NAMED INSURANCE COMPANY AGAINST JOHNSON, STATE
TREASURER OF CALIFORNIA, TO RECOVER TAXES PAID UNDER PROTEST.  THE
CASES WERE HEARD TOGETHER IN THE COURT BELOW. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

APPELLANT IS A CONNECTICUT CORPORATION, ADMITTED TO DO AN INSURANCE
BUSINESS IN CALIFORNIA.  IN ADDITION TO ITS BUSINESS CONDUCTED WITHIN
THAT STATE IT HAS ENTERED INTO CONTRACTS WITH OTHER INSURANCE
CORPORATIONS LIKEWISE LICENSED TO DO BUSINESS IN CALIFORNIA, REINSURING
THEM AGAINST LOSS ON POLICIES OF LIFE INSURANCE EFFECTED BY THEM IN
CALIFORNIA AND ISSUED TO RESIDENTS THERE.  THESE REINSURANCE CONTRACTS
WERE ENTERED INTO IN CONNECTICUT WHERE THE PREMIUMS WERE PAID AND WHERE
THE LOSSES, IF ANY, WERE PAYABLE.  THE QUESTION FOR DECISION IS WHETHER
A TAX LAID BY CALIFORNIA ON THE RECEIPT BY APPELLANT IN CONNECTICUT OF
THE REINSURANCE PREMIUMS DURING THE YEARS 1930 AND 1931, INFRINGES THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. 

IN SUITS BROUGHT IN THE STATE COURT BY APPELLANT AGAINST RESPONDENT,
STATE TREASURER, TO RECOVER THE TAXES PAID, THE SUPREME COURT OF
CALIFORNIA SUSTAINED DEMURRERS TO THE COMPLAINTS AND GAVE JUDGMENTS FOR
THE RESPONDENT.  THE CASES, HAVING BEEN CONSOLIDATED, COME HERE ON A
SINGLE APPEAL UNDER SEC. 237(A) OF THE JUDICIAL CODE.  28 U.S.C. SEC.
344(A). 

SUPPLEMENTED BY ACT OF MARCH 5, 1921(STATES.  1921, C. 22, PP. 20, 21,
POLITICAL CODE, SEC. 3664B), FIXING THE RATE OF TAX, LAYS UPON EVERY
INSURANCE COMPANY DOING BUSINESS WITHIN THE STATE AN ANNUAL TAX OF 2.6%
"UPON THE AMOUNT OF THE GROSS PREMIUMS RECEIVED UPON ITS BUSINESS DONE
IN THIS STATE, LESS RETURN PREMIUMS AND REINSURANCE IN COMPANIES OR
ASSOCIATIONS AUTHORIZED TO DO BUSINESS IN THIS STATE...."  THE SUPREME
COURT OF CALIFORNIA HAS DECLARED THAT THE CONSTITUTIONAL PROVISION
IMPOSES "A FRANCHISE TAX EXACTED FOR THE PRIVILEGE OF DOING BUSINESS"
IN THE STATE.  CONSOLIDATED TITLE SECURITIES CO. V. HOPKINS, 1 CAL.(2D)
414, 419; 35 P.(2D) 320; CF. CARPENTER V. PEOPLE'S MUTUAL LIFE
INSURANCE CO., 94 CAL. DEC. 674; 74 P.(2D) 708. 

ALTHOUGH IN TERMS THE "GROSS PREMIUMS RECEIVED UPON  ...  BUSINESS
DONE IN THIS STATE," LESS THE SPECIFIED DEDUCTIONS, ARE MADE THE
MEASURE OF THE TAX, THE STATE COURT IN THIS, AS IN AN EARLIER CASE,
CONNECTICUT GENERAL LIFE INSURANCE CO. V. JOHNSON, 3 CAL.(2D) 83; 43
P.(2D) 278(APPEAL DISMISSED FOR WANT OF A PROPERLY PRESENTED FEDERAL
QUESTION, 296 U.S. 535), HAS HELD THAT THE MEASURE INCLUDES THE
PREMIUMS ON APPELLANT'S REINSURANCE POLICIES EFFECTED AND PAYABLE IN
CONNECTICUT.  IN THIS CASE IT HAS DECLARED ALSO THAT THE POLICY OF THE
STATE, EXPRESSED IN THE CONSTITUTIONAL PROVISION, IS "TO AVOID DOUBLE
TAXATION WITHOUT ANY LOSS OF REVENUE TO THE STATE."  TO ACCOMPLISH THAT
END THE DEDUCTION OF REINSURANCE PREMIUMS PAID TO COMPANIES AUTHORIZED
TO DO BUSINESS WITHIN THE STATE IS ALLOWED, IT IS SAID, ON THE THEORY
THAT THE BENEFIT OF THE DEDUCTION WILL BE PASSED ON TO THE REINSURER
WHO, BEING AUTHORIZED TO DO BUSINESS WITHIN THE STATE, MAY BE TAXED ON
THE REINSURANCE PREMIUMS AS A MEANS OF EQUALIZING THE TAX AND AS AN
OFFSET AGAINST THE BENEFIT OF THE DEDUCTION WHICH HE ULTIMATELY
ENJOYS. 

NO CONTENTION IS MADE THAT APPELLANT HAS CONSENTED TO THE TAX IMPOSED
AS A CONDITION OF THE GRANTED PRIVILEGE TO DO BUSINESS WITHIN THE
STATE.  NOR COULD IT BE, FOR IT APPEARS THAT APPELLANT HAD CONDUCTED
ITS BUSINESS IN CALIFORNIA UNDER STATE LICENSE FOR MANY YEARS BEFORE
THE TAXABLE YEARS IN QUESTION AND BEFORE THE TAXING ACT WAS CONSTRUED
BY THE HIGHEST COURT OF THE STATE, IN CONNECTICUT GENERAL LIFE
INSURANCE CO. V. JOHNSON, SUPRA, TO APPLY TO PREMIUMS RECEIVED IN
CONNECTICUT FROM REINSURANCE CONTRACTS EFFECTED THERE.  A CORPORATION
WHICH IS ALLOWED TO COME INTO A STATE AND THERE CARRY ON ITS BUSINESS
MAY CLAIM, AS AN INDIVIDUAL MAY CLAIM, THE PROTECTION OF THE FOURTEENTH
AMENDMENT AGAINST A SUBSEQUENT APPLICATION TO IT OF STATE LAW.  HANOVER
FIRE INSURANCE CO. V. HARDING, 272 U.S. 494; CF. KENTUCKY FINANCE CORP.
V. PARAMOUNT AUTO EXCHANGE CORP., 262 U.S. 544. 

IT IS SAID THAT THE STATE COULD HAVE LAWFULLY ACCOMPLISHED ITS
PURPOSE IF THE STATUTE HAD FURTHER STIPULATED THAT THE DEDUCTION SHOULD
BE ALLOWED ONLY IN THOSE CASES WHERE THE REINSURANCE IS EFFECTED IN THE
STATE OR THE REINSURANCE PREMIUMS PAID THERE.  BUT AS THE STATE HAS
PLACED NO SUCH LIMITATION ON THE ALLOWANCE OF DEDUCTIONS, THE END
SOUGHT CAN BE ATTAINED ONLY IF THE RECEIPT BY APPELLANT OF THE
REINSURANCE PREMIUMS PAID IN CONNECTICUT UPON THE CONNECTICUT POLICIES
IS WITHIN THE REACH OF CALIFORNIA'S TAXING POWER.  APPELLEE ARGUES THAT
IT IS, BECAUSE THE REINSURANCE TRANSACTIONS ARE SO RELATED TO BUSINESS
CARRIED ON BY APPELLANT IN CALIFORNIA AS TO BE A PART OF IT AND
PROPERLY INCLUDED IN THE MEASURE OF THE TAX; AND BECAUSE, IN ANY CASE,
NO INJUSTICE IS DONE TO APPELLANT SINCE THE EFFECT OF THE STATUTE AS
CONSTRUED IS TO REDISTRIBUTE THE TAX, WHICH THE STATE MIGHT HAVE
EXACTED FROM THE ORIGINAL INSURERS BUT DID NOT, BY ASSESSING IT UPON
APPELLANT TO THE EXTENT TO WHICH IT HAS RECEIVED THE BENEFIT OF THE
ALLOWED DEDUCTIONS. 

BUT THE LIMITS OF THE STATE'S LEGISLATIVE JURISDICTION TO TAX,
PRESCRIBED BY THE FOURTEENTH AMENDMENT, ARE TO BE ASCERTAINED BY
REFERENCE TO THE INCIDENCE OF THE TAX UPON ITS OBJECTS RATHER THAN THE
ULTIMATE THRUST OF THE ECONOMIC BENEFITS AND BURDENS OF TRANSACTIONS
WITHIN THE STATE.  AS A MATTER OF CONVENIENCE AND CERTAINTY, AND TO
SECURE A PRACTICALLY JUST OPERATION OF THE CONSTITUTIONAL PROHIBITION,
WE LOOK TO THE STATE POWER TO CONTROL THE OBJECTS OF THE TAX AS MARKING
THE BOUNDARIES OF THE POWER TO LAY IT.  HENCE IT IS THAT A STATE WHICH
CONTROLS THE PROPERTY AND ACTIVITIES WITHIN ITS BOUNDARIES OF A FOREIGN
CORPORATION ADMITTED TO DO BUSINESS THERE MAY TAX THEM.  BUT THE DUE
PROCESS CLAUSE DENIES TO THE STATE POWER TO TAX OR REGULATE THE
CORPORATION'S PROPERTY AND ACTIVITIES ELSEWHERE.  UNION REFRIGERATOR
TRANSIT CO. V. KENTUCKY, 199 U.S. 194; NEW YORK LIFE INSURANCE CO. V.
HEAD, 234 U.S. 149; NEW YORK LIFE INSURANCE CO. V. DODGE, 246 U.S. 357;
ST. LOUIS COMPRESS CO. V. ARKANSAS, 260 U.S. 346; COMPANIA GENERAL DE
TABACOS V. COLLECTOR, 275 U.S. 87; HOME INSURANCE CO. V. DICK, 281 U.S.
397; HARTFORD ACCIDENT & INDEMNITY CO. V. DELTA & PINE LAND CO., 292
U.S. 143; BOSEMAN V. CONNECTICUT GENERAL LIFE INS. CO., 301 U.S. 196;
PEOPLE EX REL. SEA INSURANCE CO. V. GRAVES, 274 N.Y. 312; 8 N.E.(2D)
872; CF. PROVIDENT SAVINGS LIFE ASSURANCE SOCIETY V. KENTUCKY, 239 U.S.
103.  IT FOLLOWS THAT SUCH A TAX, OTHERWISE UNCONSTITUTIONAL, IS NOT
CONVERTED INTO A VALID EXACTION MERELY BECAUSE THE CORPORATION ENJOYS
OUTSIDE THE STATE ECONOMIC BENEFITS FROM TRANSACTIONS WITHIN IT, WHICH
THE STATE MIGHT BUT DOES NOT TAX, OR BECAUSE THE STATE MIGHT TAX THE
TRANSACTIONS WHICH THE CORPORATION CARRIES ON OUTSIDE THE STATE IF IT
WERE INDUCED TO CARRY THEM ON WITHIN. 

APPELLANT, BY ITS REINSURANCE CONTRACTS, UNDERTOOK ONLY TO INDEMNIFY
THE INSURED COMPANIES AGAINST LOSS UPON THEIR POLICIES WRITTEN IN
CALIFORNIA.  THE REINSURANCE INVOLVED NO TRANSACTIONS OR RELATIONSHIP
BETWEEN APPELLANT AND THOSE ORIGINALLY INSURED, AND CALLED FOR NO ACT
IN CALIFORNIA.  CONNECTICUT GENERAL LIFE INSURANCE CO. V. JOHNSON,
SUPRA, 87; CF. MORRIS & CO. V. SKANDINAVIA INSURANCE CO., 279 U.S. 405,
408.  APART FROM THE FACTS THAT APPELLANT WAS PRIVILEGED TO DO BUSINESS
IN CALIFORNIA, AND THAT THE RISKS REINSURED WERE ORIGINALLY INSURED
AGAINST IN THAT STATE BY COMPANIES ALSO AUTHORIZED TO DO BUSINESS
THERE, CALIFORNIA HAD NO RELATIONSHIP TO APPELLANT OR TO THE
REINSURANCE CONTRACTS.  NO ACT IN THE COURSE OF THEIR FORMATION,
PERFORMANCE OR DISCHARGE, TOOK PLACE THERE.  THE PERFORMANCE OF THOSE
ACTS WAS NOT DEPENDENT UPON ANY PRIVILEGE OR AUTHORITY GRANTED BY IT,
AND CALIFORNIA LAWS AFFORDED TO THEM NO PROTECTION. 

THE GRANT BY THE STATE OF THE PRIVILEGE OF DOING BUSINESS THERE AND
ITS CONSEQUENT AUTHORITY TO TAX THE PRIVILEGE DO NOT WITHDRAW FROM THE
PROTECTION OF THE DUE PROCESS CLAUSE THE PRIVILEGE, WHICH CALIFORNIA
DOES NOT GRANT, OF DOING BUSINESS ELSEWHERE.  WESTERN UNION TELEGRAPH
CO. V. KANSAS, 216 U.S. 1; INTERNATIONAL PAPER CO. V. MASSACHUSETTS,
246 U.S. 135; LOUISVILLE & JEFFERSONVILLE FERRY CO. V. KENTUCKY, 188
U.S. 385, 398.  EVEN THOUGH A TAX ON THE PRIVILEGE OF DOING BUSINESS
WITHIN THE STATE IN INSURING RESIDENTS AND RISKS WITHIN IT MAY BE
MEASURED BY THE PREMIUMS COLLECTED, INCLUDING THOSE MAILED TO THE HOME
OFFICE WITHOUT THE STATE, EQUITABLE LIFE ASSURANCE SOCIETY V.
PENNSYLVANIA, 238 U.S. 143, AND THOUGH THE WRITING OF POLICIES WITHOUT
THE STATE INSURING RESIDENTS AND RISKS WITHIN IT IS TAXABLE BECAUSE
WITHIN THE GRANTED PRIVILEGE, COMPANIA GENERAL DE TABACOS V. COLLECTOR,
SUPRA, 98, THERE IS NO BASIS FOR SAYING THAT REINSURANCE WHICH DOES NOT
RUN TO THE ORIGINAL INSURED, AND WHICH FROM ITS INCEPTION TO ITS
TERMINATION INVOLVES NO ACTION TAKEN WITHIN CALIFORNIA, EVEN THE
SETTLEMENT AND ADJUSTMENT OF CLAIMS, IS EMBRACED IN ANY PRIVILEGE
GRANTED BY THAT STATE.  PROVIDENT SAVINGS LIFE ASSURANCE SOCIETY V.
KENTUCKY, SUPRA, 112; COMPANIA GENERAL DE TABACOS V. COLLECTOR, SUPRA,
96; CF. EQUITABLE LIFE ASSURANCE SOCIETY V. PENNSYLVANIA, SUPRA, 147;
COMPANIA GENERAL DE TABACOS V. COLLECTOR, SUPRA, 98.  ALL THAT
APPELLANT DID IN EFFECTING THE REINSURANCE WAS DONE WITHOUT THE STATE
AND FOR ITS TRANSACTION NO PRIVILEGE OR LICENSE BY CALIFORNIA WAS
NEEDFUL.  THE TAX CANNOT BE SUSTAINED EITHER AS LAID ON PROPERTY,
BUSINESS DONE, OR TRANSACTIONS CARRIED ON WITHIN THE STATE, OR AS A TAX
ON A PRIVILEGE GRANTED BY THE STATE.  REVERSED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

I DO NOT BELIEVE THAT THIS CALIFORNIA CORPORATE FRANCHISE TAX HAS
BEEN PROVED BEYOND ALL REASONABLE DOUBT TO BE IN VIOLATION OF THE
FEDERAL CONSTITUTION FN1  AND I BELIEVE THAT THE JUDGMENT OF THE
SUPREME COURT OF CALIFORNIA SHOULD BE AFFIRMED.  TRADITIONALLY, STATES
HAVE BEEN EMPOWERED TO GRANT OR DENY FOREIGN CORPORATIONS THE RIGHT TO
DO BUSINESS WITHIN THEIR BORDERS, FN2  AND "...  MAY EXCLUDE THEM
ARBITRARILY OR IMPOSE SUCH CONDITIONS AS  ...  (THEY) WILL UPON THEIR
ENGAGING IN BUSINESS WITHIN (THEIR)  ...  JURISDICTION."  FN3 

CALIFORNIA LAID AN ANNUAL TAX UPON GROSS INSURANCE PREMIUMS WHICH THE
SUPREME COURT OF CALIFORNIA HAS CONSTRUED TO BE "A FRANCHISE TAX
EXACTED FOR THE PRIVILEGE OF DOING BUSINESS."  IN MEASURING THIS
FRANCHISE TAX IMPOSED UPON CORPORATIONS THE STATE INCLUDES REINSURANCE
PREMIUMS PAID TO THE CORPORATION ON CONTRACTS MADE WITHOUT THE STATE,
WHERE SUCH REINSURANCE PROTECTS CITIZENS OF THE STATE OF CALIFORNIA. 
THERE IS NO ATTEMPT BY THIS TAX TO REGULATE THE BUSINESS OF THE
INSURANCE COMPANY IN ANY STATE EXCEPT CALIFORNIA. 

THE RECORD DOES NOT INDICATE THAT CALIFORNIA MADE ANY CONTRACT WITH
THIS CONNECTICUT CORPORATION GUARANTEEING IT A PERMANENT FRANCHISE TO
DO BUSINESS IN CALIFORNIA ON THE SAME TERMS AND CONDITIONS UPON WHICH
IT ENTERED THE STATE. 

"A STATE WHICH FREELY GRANTED THE CORPORATE PRIVILEGE FOR INTRASTATE
COMMERCE MAY CHANGE ITS POLICY....  IN THE ABSENCE OF CONTRACT, THERE
IS NO VESTED INTEREST WHICH REQUIRES THE CONTINUANCE OF A LEGISLATIVE
POLICY HOWEVER EXPRESSED - WHETHER EMBODIED IN A CHARTER OR IN A SYSTEM
OF TAXATION."  FN4 

IT MAY BE THAT CALIFORNIA BELIEVES THAT BY THIS TAX IT CAN STIMULATE
THE REINSURANCE BUSINESS OF COMPANIES MAKING THEIR REINSURANCE
CONTRACTS IN CALIFORNIA.  THE RIGHT OF A STATE TO FOSTER ITS OWN
DOMESTIC INDUSTRIES BY ITS TAXING SYSTEM HAS BEEN SUSTAINED BY THIS
COURT.  FN5 

THIS COURT HAS ALSO FREQUENTLY SUSTAINED THE RIGHT OF A STATE TO
IMPOSE CONDITIONS ON FOREIGN CORPORATIONS IN ORDER TO FAVOR ITS OWN
CORPORATIONS.  FN6  IF A STATE DID NOT HAVE THIS PRIVILEGE IT COULD NOT
PROTECT THE DOMESTIC BUSINESS OF ITS OWN CORPORATIONS FROM UNDESIRABLE
COMPETITION BY FOREIGN CORPORATIONS.  THE STATE OF CALIFORNIA HAS THE
CONSTITUTIONAL RIGHT TO LIMIT THE PRIVILEGES OF ITS OWN CORPORATIONS
AND TO RESERVE THE RIGHT TO CONTROL THEIR PRIVILEGES AND TO DEFINE AND
LIMIT THEIR ACTIVITIES.  FN7  IF CALIFORNIA HAS THE LAWFUL
CONSTITUTIONAL RIGHT (AS THIS COURT HAS MANY TIMES SAID IT HAS) TO
IMPOSE CONDITIONS UPON FOREIGN CORPORATIONS SO AS TO PROTECT DOMESTIC
CORPORATIONS, ITS OWN ELECTED LEGISLATIVE REPRESENTATIVES SHOULD BE THE
JUDGES OF WHAT IS REASONABLE AND PROPER IN A DEMOCRACY. 

WITH REFERENCE TO A CORPORATE TAX IMPOSED BY THE STATE OF LOUISIANA,
THIS COURT HAS SAID:  "THE APPELLANTS, BY INCORPORATING IN SOME OTHER
STATE, OR BY SPREADING THEIR BUSINESS AND ACTIVITIES OVER OTHER STATES,
CANNOT SET AT NAUGHT THE PUBLIC POLICY OF LOUISIANA (CALIFORNIA?)....
THE POLICY LOUISIANA (CALIFORNIA?)  IS FREE TO ADOPT WITH RESPECT TO
THE BUSINESS ACTIVITIES OF HER OWN CITIZENS SHE MAY APPLY TO THE
CITIZENS OF OTHER STATES WHO CONDUCT THE SAME BUSINESS WITHIN HER
BORDERS, AND THIS IRRESPECTIVE OF WHETHER THE EVILS REQUIRING
REGULATION ARISE SOLELY FROM OPERATIONS IN LOUISIANA (CALIFORNIA?)  OR
ARE IN PART THE RESULT OF EXTRA-STATE TRANSACTIONS."  FN8    BUT IT IS
CONTENDED THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
PROHIBITS CALIFORNIA FROM DETERMINING WHAT TERMS AND CONDITIONS SHOULD
BE IMPOSED UPON THIS CONNECTICUT CORPORATION TO PROMOTE THE WELFARE OF
THE PEOPLE OF CALIFORNIA. 

I DO NOT BELIEVE THE WORD "PERSON" IN THE FOURTEENTH AMENDMENT
INCLUDES CORPORATIONS.  "THE DOCTRINE OF STARE DECISIS, HOWEVER
APPROPRIATE AND EVEN NECESSARY AT TIMES, HAS ONLY A LIMITED APPLICATION
IN THE FIELD OF CONSTITUTIONAL LAW."  FN9  THIS COURT HAS MANY TIMES
CHANGED ITS INTERPRETATIONS OF THE CONSTITUTION WHEN THE CONCLUSION WAS
REACHED THAT AN IMPROPER CONSTRUCTION HAD BEEN ADOPTED.  FN10  ONLY
RECENTLY THE CASE OF WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379,
EXPRESSLY OVERRULED A PREVIOUS INTERPRETATION OF THE FOURTEENTH
AMENDMENT WHICH HAD LONG BLOCKED STATE MINIMUM WAGE LEGISLATION.  WHEN
A STATUTE IS DECLARED BY THIS COURT TO BE UNCONSTITUTIONAL, THE
DECISION UNTIL REVERSED STANDS AS A BARRIER AGAINST THE ADOPTION OF
SIMILAR LEGISLATION.  A CONSTITUTIONAL INTERPRETATION THAT IS WRONG
SHOULD NOT STAND.  I BELIEVE THIS COURT SHOULD NOW OVERRULE PREVIOUS
DECISIONS WHICH INTERPRETED THE FOURTEENTH AMENDMENT TO INCLUDE
CORPORATIONS. 

NEITHER THE HISTORY NOR THE LANGUAGE OF THE FOURTEENTH AMENDMENT
JUSTIFIES THE BELIEF THAT CORPORATIONS ARE INCLUDED WITHIN ITS
PROTECTION.  THE HISTORICAL PURPOSE OF THE FOURTEENTH AMENDMENT WAS
CLEARLY SET FORTH WHEN FIRST CONSIDERED BY THIS COURT IN THE SLAUGHTER
HOUSE CASES, 16 WALL.  36, DECIDED APRIL, 1873 - LESS THAN FIVE YEARS
AFTER THE PROCLAMATION OF ITS ADOPTION.  MR. JUSTICE MILLER SPEAKING
FOR THE COURT SAID (P. 70): 

"AMONG THE FIRST ACTS OF LEGISLATION ADOPTED BY SEVERAL OF THE STATES
IN THE LEGISLATIVE BODIES WHICH CLAIMED TO BE IN THEIR NORMAL RELATIONS
WITH THE FEDERAL GOVERNMENT, WERE LAWS WHICH IMPOSED UPON THE COLORED
RACE ONEROUS DISABILITIES AND BURDENS, AND CURTAILED THEIR RIGHTS IN
THE PURSUIT OF LIFE, LIBERTY, AND PROPERTY TO SUCH AN EXTENT THAT THEIR
FREEDOM WAS OF LITTLE VALUE, WHILE THEY HAD LOST THE PROTECTION WHICH
THEY HAD RECEIVED FROM THEIR FORMER OWNERS FROM MOTIVES BOTH OF
INTEREST AND HUMANITY.... 

"THESE CIRCUMSTANCES, WHATEVER OF FALSEHOOD OR MISCONCEPTION MAY HAVE
BEEN MINGLED WITH THEIR PRESENTATION, FORCED  ...  THE CONVICTION THAT
SOMETHING MORE WAS NECESSARY IN THE WAY OF CONSTITUTIONAL PROTECTION TO
THE UNFORTUNATE RACE WHO HAD SUFFERED SO MUCH....  (CONGRESSIONAL
LEADERS) ACCORDINGLY PASSED THROUGH CONGRESS THE PROPOSITION FOR THE
FOURTEENTH AMENDMENT, AND ...  DECLINED TO TREAT AS RESTORED TO THEIR
FULL PARTICIPATION IN THE GOVERNMENT OF THE UNION THE STATES WHICH HAD
BEEN IN INSURRECTION, UNTIL THEY RATIFIED THAT ARTICLE BY A FORMAL VOTE
OF THEIR LEGISLATIVE BODIES." 

CERTAINLY, WHEN THE FOURTEENTH AMENDMENT WAS SUBMITTED FOR APPROVAL,
THE PEOPLE WERE NOT TOLD THAT THE STATES OF THE SOUTH WERE TO BE DENIED
THEIR NORMAL RELATIONSHIP WITH THE FEDERAL GOVERNMENT UNLESS THEY
RATIFIED AN AMENDMENT GRANTING NEW AND REVOLUTIONARY RIGHTS TO
CORPORATIONS.  THIS COURT, WHEN THE SLAUGHTER HOUSE CASES WERE DECIDED
IN 1873, HAD APPARENTLY DISCOVERED NO SUCH PURPOSE.  THE RECORDS OF THE
TIME CAN BE SEARCHED IN VAIN FOR EVIDENCE THAT THIS AMENDMENT WAS
ADOPTED FOR THE BENEFIT OF CORPORATIONS.  IT IS TRUE THAT IN 1882,
TWELVE YEARS AFTER ITS ADOPTION, AND TEN YEARS AFTER THE SLAUGHTER
HOUSE CASES, SUPRA, AN ARGUMENT WAS MADE IN THIS COURT THAT A JOURNAL
OF THE JOINT CONGRESSIONAL COMMITTEE WHICH FRAMED THE AMENDMENT, SECRET
AND UNDISCLOSED UP TO THAT DATE, INDICATED THE COMMITTEE'S DESIRE TO
PROTECT CORPORATIONS BY THE USE OF THE WORD "PERSON."  FN11  FOUR YEARS
LATER, IN 1886, THIS COURT IN THE CASE OF SANTA CLARA COUNTY V.
SOUTHERN PACIFIC RAILROAD, 118 U.S. 394, DECIDED FOR THE FIRST TIME
THAT THE WORD "PERSON" IN THE AMENDMENT DID IN SOME INSTANCES INCLUDE
CORPORATIONS.  A SECRET PURPOSE ON THE PART OF THE MEMBERS OF THE
COMMITTEE, EVEN IF SUCH BE THE FACT, HOWEVER, WOULD NOT BE SUFFICIENT
TO JUSTIFY ANY SUCH CONSTRUCTION.  THE HISTORY OF THE AMENDMENT PROVES
THAT THE PEOPLE WERE TOLD THAT ITS PURPOSE WAS TO PROTECT WEAK AND
HELPLESS HUMAN BEINGS AND WERE NOT TOLD THAT IT WAS INTENDED TO REMOVE
CORPORATIONS IN ANY FASHION FROM THE CONTROL OF STATE GOVERNMENTS.  THE
FOURTEENTH AMENDMENT FOLLOWED THE FREEDOM OF A RACE FROM SLAVERY. 
JUSTICE SWAYNE SAID IN THE SLAUGHTER HOUSE CASES, SUPRA, THAT "BY 'ANY
PERSON' WAS MEANT ALL PERSONS WITHIN THE JURISDICTION OF THE STATE.  NO
DISTINCTION IS INTIMATED ON ACCOUNT OF RACE OR COLOR."  CORPORATIONS
HAVE NEITHER RACE NOR COLOR.  HE KNEW THE AMENDMENT WAS INTENDED TO
PROTECT THE LIFE, LIBERTY AND PROPERTY OF HUMAN BEINGS. 

THE LANGUAGE OF THE AMENDMENT ITSELF DOES NOT SUPPORT THE THEORY THAT
IT WAS PASSED FOR THE BENEFIT OF CORPORATIONS. 

THE FIRST CLAUSE OF SEC. 1 OF THE AMENDMENT READS:  "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."  CERTAINLY A CORPORATION CANNOT BE NATURALIZED AND
"PERSONS" HERE IS NOT BROAD ENOUGH TO INCLUDE "CORPORATIONS." 

THE FIRST CLAUSE OF THE SECOND SENTENCE OF SEC. 1 READS:  "NO STATE
SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR
IMMUNITIES OF CITIZENS OF THE UNITED STATES;..."  WHILE EFFORTS HAVE
BEEN MADE TO PERSUADE THIS COURT TO ALLOW CORPORATIONS TO CLAIM THE
PROTECTION OF THIS CLAUSE, THESE EFFORTS HAVE NOT BEEN SUCCESSFUL. 
FN12 

THE NEXT CLAUSE OF THE SECOND SENTENCE READS:  "NOR SHALL ANY STATE
DEPRIVE ANY PERSON OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF
LAW;..."  IT HAS NOT BEEN DECIDED THAT THIS CLAUSE PROHIBITS A STATE
FROM DEPRIVING A CORPORATION OF "LIFE."  THIS COURT HAS EXPRESSLY HELD
THAT "THE LIBERTY GUARANTEED BY THE FOURTEENTH AMENDMENT AGAINST
DEPRIVATION WITHOUT DUE PROCESS OF LAW IS THE LIBERTY OF NATURAL, NOT
ARTIFICIAL PERSONS."  FN13  THUS, THE WORDS "LIFE" AND "LIBERTY" DO NOT
APPLY TO CORPORATIONS, AND OF COURSE THEY COULD NOT HAVE BEEN SO
INTENDED TO APPLY.  HOWEVER, THE DECISIONS OF THIS COURT WHICH THE
MAJORITY FOLLOW HOLD THAT CORPORATIONS ARE INCLUDED IN THIS CLAUSE
INSOFAR AS THE WORD "PROPERTY" IS CONCERNED.  IN OTHER WORDS, THIS
CLAUSE IS CONSTRUED TO MEAN AS FOLLOWS: 

"NOR SHALL ANY STATE DEPRIVE ANY HUMAN BEING OF LIFE, LIBERTY OR
PROPERTY WITHOUT DUE PROCESS OF LAW; NOR SHALL ANY STATE DEPRIVE ANY
CORPORATION OF PROPERTY WITHOUT DUE PROCESS OF LAW." 

THE LAST CLAUSE OF THIS SECOND SENTENCE OF SEC. 1 READS:  "NOR DENY
TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE
LAWS."  AS USED HERE, "PERSON" HAS BEEN CONSTRUED TO INCLUDE
CORPORATIONS.  FN14 

BOTH CONGRESS AND THE PEOPLE WERE FAMILIAR WITH THE MEANING OF THE
WORD "CORPORATION" AT THE TIME THE FOURTEENTH AMENDMENT WAS SUBMITTED
AND ADOPTED.  THE JUDICIAL INCLUSION OF THE WORD "CORPORATION" IN THE
FOURTEENTH AMENDMENT HAS HAD A REVOLUTIONARY EFFECT ON OUR FORM OF
GOVERNMENT.  THE STATES DID NOT ADOPT THE AMENDMENT WITH KNOWLEDGE OF
ITS SWEEPING MEANING UNDER ITS PRESENT CONSTRUCTION.  NO SECTION OF THE
AMENDMENT GAVE NOTICE TO THE PEOPLE THAT, IF ADOPTED, IT WOULD SUBJECT
EVERY STATE LAW AND MUNICIPAL ORDINANCE, AFFECTING CORPORATIONS, (AND
ALL ADMINISTRATIVE ACTIONS UNDER THEM) TO CENSORSHIP OF THE UNITED
STATES COURTS.  NO WORD IN ALL THIS AMENDMENT GAVE ANY HINT THAT ITS
ADOPTION WOULD DEPRIVE THE STATES OF THEIR LONG RECOGNIZED POWER TO
REGULATE CORPORATIONS. 

THE SECOND SECTION OF THE AMENDMENT INFORMED THE PEOPLE THAT
REPRESENTATIVES WOULD BE APPORTIONED AMONG THE SEVERAL STATES
"ACCORDING TO THEIR RESPECTIVE NUMBERS, COUNTING THE WHOLE NUMBER OF
PERSONS IN EACH STATE, EXCLUDING INDIANS NOT TAXED."  NO CITIZEN COULD
GATHER THE IMPRESSION HERE THAT WHILE THE WORD "PERSONS" IN THE SECOND
AMENDMENT SAID THAT "NO PERSON  ...  SHALL BE A SENATOR OR
REPRESENTATIVE IN CONGRESS," (WHO "ENGAGED IN INSURRECTION").  THERE
WAS NO INTIMATION HERE THAT THE WORD "PERSON" IN THE FIRST SECTION IN
SOME INSTANCES INCLUDED CORPORATIONS. 

THIS AMENDMENT SOUGHT TO PREVENT DISCRIMINATION BY THE STATES AGAINST
CLASSES OR RACES.  WE ARE AWARE OF THIS FROM WORDS SPOKEN IN THIS COURT
WITHIN FIVE YEARS AFTER ITS ADOPTION, WHEN THE PEOPLE AND THE COURTS
WERE PERSONALLY FAMILIAR WITH THE HISTORICAL BACKGROUND OF THE
AMENDMENT.  "WE DOUBT VERY MUCH WHETHER ANY ACTION OF A STATE NOT
DIRECTED BY WAY OF DISCRIMINATION AGAINST THE NEGROES AS A CLASS, OR ON
ACCOUNT OF THEIR RACE, WILL EVER BE HELD TO COME WITHIN THE PURVIEW OF
THIS PROVISION."  N15  YET, OF THE CASES IN THIS COURT IN WHICH THE
FOURTEENTH AMENDMENT WAS APPLIED DURING THE FIRST FIFTY YEARS AFTER ITS
ADOPTION, LESS THAN ONE-HALF OF ONE PER CENT. INVOKED IT IN PROTECTION
OF THE NEGRO RACE, AND MORE THAN FIFTY PER CENT. ASKED THAT ITS
BENEFITS BE EXTENDED TO CORPORATIONS.  FN16 

IF THE PEOPLE OF THIS NATION WISH TO DEPRIVE THE STATES OF THEIR
SOVEREIGN RIGHTS TO DETERMINE WHAT IS A FAIR AND JUST TAX UPON
CORPORATIONS DOING A PURELY LOCAL BUSINESS WITHIN THEIR OWN STATE
BOUNDARIES, THERE IS A WAY PROVIDED BY THE CONSTITUTION TO ACCOMPLISH
THIS PURPOSE.  THAT WAY DOES NOT LIE ALONG THE COURSE OF JUDICIAL
AMENDMENT TO THAT FUNDAMENTAL CHARTER.  AN AMENDMENT HAVING THAT
PURPOSE COULD BE SUBMITTED BY CONGRESS AS PROVIDED BY THE
CONSTITUTION.  I DO NOT BELIEVE THAT THE FOURTEENTH AMENDMENT HAD THAT
PURPOSE, NOR THAT THE PEOPLE BELIEVED IT HAD THAT PURPOSE, NOR THAT IT
SHOULD BE CONSTRUED AS HAVING THAT PURPOSE. 

I BELIEVE THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA SHOULD BE
SUSTAINED. 

FN1  CF. OGDEN V. SAUNDERS, 12 WHEAT.  213, 270. 

FN2  BANK OF AUGUSTA V. EARLE, 13 PET. 519; PAUL V. VIRGINIA, 8
WALL.  168; DUCAT V. CHICAGO, 10 WALL.  410; HORN SILVER MINING CO. V.
NEW YORK, 143 U.S. 305. 

FN3  HANOVER FIRE INS. CO. V. HARDING, 272 U.S. 494, 507. 

FN4  BRANDEIS, J., DISSENTING, LIGGETT CO. V. LEE, 288 U.S. 517,
546. 

FN5  NEW YORK V. ROBERTS, 171 U.S. 658; MAGNANO CO. V. HAMILTON, 292
U.S. 40; FOX V. STANDARD OIL CO., 294 U.S. 87; AERO MAYFLOWER TRANSIT
CO. V. GEORGIA COMMISSION, 295 U.S. 285; ALASKA FISH CO. V. SMITH, 255
U.S. 44, 48. 

FN6  PRUDENTIAL INSURANCE CO. V. CHEEK, 259 U.S. 530, 536; PEMBINA
MINING CO. V. PENNSYLVANIA, 125 U.S. 181, 189. 

FN7  FIFTH AVENUE COACH CO. V. NEW YORK, 221 U.S. 467; STONE V.
MISSISSIPPI, 101 U.S. 814, 820. 

FN8  ATLANTIC & PAC. TEA CO. V. GROSJEAN, 301 U.S. 412, 427. 

FN9  STONE AND CARDOZO, JJ., CONCURRING, ST. JOSEPH STOCK YARDS CO.
V. UNITED STATES, 298 U.S. 38, 94. 

FN10  SEE COLLECTION OF CASES, NOTES 1, 2, 3 AND 4, DISSENTING
OPINION OF JUSTICE BRANDEIS, BURNET V. CORONADO OIL & GAS CO., 285 U.S.
393, 406-409. 

FN11  SAN MATEO COUNTY V. SOUTHERN PACIFIC RAILROAD, 116 U.S. 138. 
SEE BENJ.  B. KENDRICK, JOURNAL OF THE JOINT COMMITTEE ON
RECONSTRUCTION (1914, NEW YORK); HOWARD J. GRAHAM, THE "CONSPIRACY
THEORY" OF THE FOURTEENTH AMENDMENT, 47 YALE L.J. 371; DONALD BARR
CHIDSEY, THE GENTLEMAN FROM NEW YORK - A LIFE OF ROSCOE CONKLIN, YALE
UNIVERSITY PRESS (1935). 

FN12  SELOVER, BATES & CO. V. WALSH, 226 U.S. 112, 126. 

FN13  WESTERN TURF ASSN. V. GREENBERG, 204 U.S. 359, 363. 

FN14  GULF, C. & S.F. RY. CO. V. ELLIS, 165 U.S. 150, 154. 

FN15  SLAUGHTER HOUSE CASES, SUPRA. 

FN16  CHARLES WALLACE COLLINS, THE FOURTEENTH AMENDMENT AND THE
STATES, BOSTON (1912), P. 138. 
..END :


















BLACKTON V. GORDON, 303 U.S. 91 


NO. 167.  ARGUED JANUARY 5, 1938.  - DECIDED JANUARY 31, 1938.  - 118
N.J.L. 159 -  191 ATL. 761, AFFIRMED. 


WAGES OF SEAMEN FROM ATTACHMENT, HELD INAPPLICABLE TO THE WAGES OF A
MASTER OF A VESSEL.  P. 92. 

BLACKTON V. GORDON. 

CERTIORARI TO THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

CERTIORARI, 302 U.S. 667, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
AGAINST THE PETITIONER, 117 N.J.L. 40; 186 ATL. 689, IN A SUIT TO
ENFORCE AGAINST HIM A STATUTORY LIABILITY BASED ON HIS REFUSAL TO HONOR
A WRIT OF ATTACHMENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IS WHETHER THE MASTER OF A VESSEL IS ENTITLED TO THE
BENEFIT OF SEC. 12 OF THE ACT OF MARCH 4, 1915,  FN1  EXEMPTING WAGES
OF SEAMEN FROM ATTACHMENT. 

THE RESPONDENT RECOVERED JUDGMENT AGAINST ONE FINDLAY, THE CAPTAIN OF
THE TUG WAVERLY, A REGISTERED VESSEL OF THE UNITED STATES OPERATING IN
NEW YORK HARBOR.  UNDER A STATE STATUTE FINDLAY'S WAGES DUE FROM HIS
EMPLOYER, THE ERIE RAILROAD COMPANY, WERE ATTACHED BY THE SERVICE OF AN
ORDER ON THE PETITIONER, SUPERINTENDENT OF THE MARINE DEPARTMENT OF THE
RAILROAD COMPANY.  IT IS NOT DISPUTED THAT IF FINDLAY'S WAGES WERE
SUBJECT TO GARNISHMENT THE ORDER, AND ITS SERVICE UPON THE PETITIONER,
WERE REGULAR AND LAWFUL.  THE PETITIONER ASSERTED THAT THE FEDERAL
STATUTE EXEMPTED FINDLAY'S WAGES FROM EXECUTION AND REFUSED TO HONOR
THE ORDER.  THEREUPON ACTION WAS INSTITUTED BY RESPONDENT AGAINST
PETITIONER, PURSUANT TO LOCAL STATUTE WHICH IN SUCH A CASE RENDERS THE
RECUSANT OFFICER LIABLE FOR THE AMOUNT OF THE JUDGMENT.  ON THE TRIAL
PETITIONER'S MOTIONS FOR A NONSUIT AND FOR A DIRECTED VERDICT WERE
DENIED AND JUDGMENT WENT FOR THE RESPONDENT.  THE PETITIONER
SUCCESSIVELY APPEALED TO THE SUPREME COURT AND THE COURT OF ERRORS AND
APPEALS.  THE JUDGMENT WAS AFFIRMED.  FN2  BECAUSE OF THE IMPORTANCE OF
THE QUESTION WE GRANTED THE WRIT OF CERTIORARI. 

THE WORDS OF THE STATUTE ARE:  "NO WAGES DUE OR ACCRUING TO ANY
SEAMAN OR APPRENTICE SHALL BE SUBJECT TO ATTACHMENT OR ARRESTMENT FROM
ANY COURT  ..."  WHILE, WITHIN THE PURVIEW OF SOME OF THE ACTS
CONCERNING SHIPPING, A MASTER IS INCLUDED IN THE CLASS DESIGNATED
SEAMEN, IN OTHERS THE EXPRESSION EXCLUDES THE MASTER.  FN3  IN THIS
CASE WE MUST DETERMINE WHETHER CONGRESS INTENDED, BY SEC. 12 OF THE ACT
OF 1915, TO EXTEND TO A MASTER THE EXEMPTION OF SEAMEN'S WAGES FROM
GARNISHMENT.  DECISION IS AIDED BY A CONSIDERATION OF THE PROVISION IN
ITS ORIGINAL SETTING.  IT WAS FIRST ENACTED AS SEC. 61 OF THE ACT OF
JUNE 7, 1872,  FN4  WHICH AUTHORIZED THE APPOINTMENT OF SHIPPING
COMMISSIONERS TO PROTECT MERCHANT SEAMEN AND TO SUPERINTEND THEIR
SHIPMENT AND DISCHARGE.  SCRUTINY OF THE ACT AS A WHOLE LEADS TO THE
VIEW THAT IN ALL MATTERS AFFECTING WAGES SEAMEN WERE TREATED AS A CLASS
WHICH EXCLUDED MASTERS; AND THIS CONCLUSION IS REQUIRED BY SEC. 65, FN5
WHICH IS IN PART:  "THAT TO AVOID DOUBT IN THE CONSTRUCTION OF THIS
ACT, EVERY PERSON HAVING THE COMMAND OF ANY SHIP BELONGING TO ANY
CITIZEN OF THE UNITED STATES SHALL, WITHIN THE MEANING AND FOR THE
PURPOSES OF THIS ACT, BE DEEMED AND TAKEN TO BE THE 'MASTER' OF SUCH
SHIP; AND THAT EVERY PERSON (APPRENTICES EXCEPTED) WHO SHALL BE
EMPLOYED OR ENGAGED TO SERVE IN ANY CAPACITY ON BOARD THE SAME SHALL BE
DEEMED AND TAKEN TO BE A 'SEAMAN' WITHIN THE MEANING AND FOR THE
PURPOSES OF THIS ACT;..." 

IN ITS PRESENT FORM THE PERTINENT LANGUAGE OF SEC. 12 OF THE ACT OF
MARCH 4, 1915, IS IDENTICAL WITH THAT ORIGINALLY EMPLOYED IN SEC. 61 OF
THE ACT OF 1872, WHICH BECAME SEC. 4536 OF THE REVISED STATUTES. 
PROVISION TO MAKE IT APPLICABLE TO FISHERMEN EMPLOYED ON FISHING
VESSELS AS WELL AS TO SEAMEN.  THE STATUTE IS NOW SEC. 601 OF TITLE 46
OF THE UNITED STATES CODE. 

STATUTES AND, WITH IMMATERIAL AMENDMENTS, NOW IS SEC. 713 OF TITLE 46
OF THE UNITED STATES CODE.  VARIOUS OTHER PROVISIONS OF THE ACT OF 1872
EMBODIED IN THE REVISED STATUTES, EITHER IN THEIR ORIGINAL FORM OR AS
AMENDED BY THE ACT OF MARCH 4, 1915, AND BY THE MERCHANT MARINE ACT OF
1920,  FN6  NOW APPEAR, WITH PROVISIONS OF OTHER STATUTES, AS SECTIONS
OF TITLE 46 OF THE CODE.  IN COMPILING IT THE ORIGINAL LANGUAGE OF SEC.
65 OF THE ACT OF 1872 "TO AVOID DOUBT IN THE CONSTRUCTION OF THIS ACT,"
WAS, IN SEC. 713 OF TITLE 46, CHANGED TO READ:  "IN THE CONSTRUCTION OF
THIS CHAPTER."  THE CHANGE IN PHRASEOLOGY HAS GIVEN RISE TO THE
IMPRESSION THAT THE DEFINITIONS FOUND IN SEC. 713 APPLY INDIFFERENTLY
TO THE VARIOUS STATUTES AFFECTING MERCHANT SHIPPING.  FN7  TO AVOID
CONFUSION IN DETERMINING THE APPLICABILITY OF THE DEFINITIONS CONTAINED
IN THAT SECTION, IT IS NECESSARY TO TRACE TO THEIR ORIGIN THE
SUBSTANTIVE SECTIONS TO WHICH IT MAY BE DEEMED TO REFER, AND TO
CONSTRUE THEM IN THE LIGHT OF THE EVIDENT INTENT OF CONGRESS IN THE USE
OF THE WORD "SEAMAN" IN THE ORIGINAL ACT.  SINCE THE PERTINENT
PROVISION OF SEC. 12 OF THE ACT OF 1915 HERE UNDER CONSIDERATION AND
THE DEFINITIONS OF SEC. 713 OF TITLE 46 OF THE CODE WERE COMMONLY
DERIVED FROM THE ACT OF 1872 AND HAVE NOT BEEN MATERIALLY CHANGED, THEY
MUST BE READ IN COLLOCATION, AND WHEN THIS IS DONE, THE INTENT OF
CONGRESS TO EXCLUDE MASTERS FROM THE EXEMPTION ACCORDED SEAMEN IS
PLAIN.  FN8 

THE PETITIONER CONTENDS THAT SEC. 61 OF THE ACT OF 1872 WAS MODIFIED
BY THE ACT OF JUNE 9, 1874, FN9  WHEREBY THE PROVISIONS OF THE ACT OF
1872 WERE MADE INAPPLICABLE TO VESSELS IN THE COASTWISE TRADE.  THE
LATTER ACT HAS BEEN CARRIED INTO THE CODE AS SEC. 544 OF TITLE 46, AND
IT IS SAID THAT THE REPEAL OF SEC. 61 BY THE ACT OF MARCH 4, 1915, AND
THE REENACTMENT OF THE SECTION, SLIGHTLY ALTERED, DID NOT OPERATE TO
REPEAL THE ACT OF 1874.  IN VIEW OF OUR DECISION THAT A MASTER IS NOT
WITHIN THE EXEMPTION GRANTED BY SEC. 12 OF THE ACT OF 1915 WE NEED NOT
PASS UPON THIS QUESTION. 

THE JUDGMENT IS AFFIRMED. 

FN1  C. 153, 38 STAT. 1164, 1169; U.S.C. TIT. 46, SEC. 601. 

FN2  117 N.J.L. 40, 186 ATL. 689; 118 N.J.L. 159, 191 ATL. 761. 

FN3  WARNER V. GOLTRA, 293 U.S. 155, 157, 158. 

FN4  17 STAT. 262, 276. 

FN5  17 STAT. 277. 

FN6  C. 250, 41 STAT. 988. 

FN7  WARNER V. GOLTRA, SUPRA, P. 162. 

FN8  CF. WARNER V. GOLTRA, SUPRA, P. 162. 

FN9  C. 260, 18 STAT. 64. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










INDIANA EX REL. ANDERSON V. BRAND, 303 U.S. 95 


NO. 256.  ARGUED JANUARY 10, 1938.  - DECIDED JANUARY 31, 1938.  - 5
N.E.(2D) 531, 913 -  7 N.E.(2D) 777, REVERSED. 


1.  WHERE A STATE COURT DOES NOT DECIDE A CAUSE UPON AN INDEPENDENT
STATE GROUND, BUT, DEEMING A FEDERAL QUESTION TO BE BEFORE IT, ACTUALLY
ENTERTAINS AND DECIDES THAT QUESTION ADVERSELY TO THE FEDERAL RIGHT
ASSERTED, THIS COURT HAS JURISDICTION TO REVIEW THE JUDGMENT IF FINAL. 
P. 98. 

2.  THIS COURT MAY NOT REFUSE JURISDICTION BECAUSE THE STATE COURT
MIGHT HAVE BASED ITS DECISION, CONSISTENTLY WITH THE RECORD, UPON AN
INDEPENDENT AND ADEQUATE STATE GROUND.  P. 98. 

3.  THE OPINION OF THE STATE COURT MAY BE EXAMINED TO ASCERTAIN
WHETHER A FEDERAL QUESTION WAS RAISED AND DECIDED OR WHETHER THE COURT
RESTED ITS JUDGMENT ON AN ADEQUATE NON-FEDERAL GROUND.  P. 98. 

4.  ANY DOUBT HERE AS TO WHETHER THE VALIDITY OF THE STATE STATUTE
UNDER THE FEDERAL CONSTITUTION WAS DRAWN INTO QUESTION, ARISING FROM
THE GENERALITY OF A REFERENCE IN THE OPINION OF THE STATE COURT, HELD
REMOVED BY A CERTIFICATE SIGNED BY ALL THE JUSTICES OF THE STATE COURT,
AND MADE A PART OF THE RECORD, TO THE EFFECT THAT THE REFERENCE WAS TO
ART. I, SEC. 10, OF THE CONSTITUTION OF THE UNITED STATES.  P. 99. 

5.  A LEGISLATIVE ENACTMENT MAY CONTAIN PROVISIONS WHICH, WHEN
ACCEPTED AS THE BASIS OF ACTION BY INDIVIDUALS, BECOME CONTRACTS
BETWEEN THEM AND THE STATE, WITHIN THE PROTECTION OF ART. I, SEC. 10,
OF THE FEDERAL CONSTITUTION.  P. 100. 

6.  WHERE IT IS CLAIMED THAT A STATE STATUTE IMPAIRS THE OBLIGATION
OF A CONTRACT ALLEGED TO HAVE BEEN CREATED BY AN EARLIER STATUTE, THIS
COURT, WHILE ACCORDING GREAT WEIGHT TO THE VIEWS OF THE HIGHEST COURT
OF THE STATE, MUST DETERMINE FOR ITSELF QUESTIONS AS TO THE EXISTENCE
AND EFFECT OF THE CONTRACT AND AS TO WHETHER ITS OBLIGATION WAS
IMPAIRED.  P. 100. 

7.  THE INDIANA TEACHERS' TENURE ACT OF 1927 PROVIDED THAT A PUBLIC
SCHOOL TEACHER WHO HAD SERVED UNDER CONTRACT FOR FIVE OR MORE
SUCCESSIVE YEARS, AND THEREAFTER ENTERED INTO A CONTRACT FOR FURTHER
SERVICE WITH THE SCHOOL CORPORATION, THEREBY BECAME A "PERMANENT
TEACHER," AND THAT THE CONTRACT, UPON THE EXPIRATION OF ITS STATED
TERM, SHOULD BE DEEMED AN "INDEFINITE CONTRACT" AND REMAIN IN FORCE
UNTIL SUCCEEDED BY A NEW CONTRACT SIGNED BY BOTH PARTIES OR CANCELLED
IN THE MANNER PROVIDED IN THE ACT.  A PERMANENT TEACHER'S CONTRACT MUST
BE IN WRITING AND COULD BE CANCELLED ONLY AFTER NOTICE AND HEARING, AND
FOR CAUSES SPECIFIED IN THE ACT, BUT NOT FOR POLITICAL OR PERSONAL
REASONS.  THE TEACHER COULD CANCEL ONLY UPON FIVE DAYS' NOTICE, BUT NOT
DURING THE SCHOOL TERM NOR WITHIN 30 DAYS OF THE BEGINNING THEREOF.  AN
AMENDATORY ACT OF 1933, AS CONSTRUED BY THE STATE COURT, REPEALED THE
EARLIER ACT IN SO FAR AS TOWNSHIP TEACHERS AND SCHOOLS WERE CONCERNED,
AND PERMITTED THE TERMINATION OF THE EMPLOYMENT OF SUCH TEACHERS
WITHOUT REGARD TO THE CONDITIONS AND LIMITATIONS OF THE EARLIER ACT. 
HELD THAT, UNDER THE ACT OF 1927, THE RIGHT OF A PERMANENT TEACHER TO
CONTINUED EMPLOYMENT UPON AN INDEFINITE CONTRACT WAS CONTRACTUAL, AND
THE OBLIGATION OF SUCH A CONTRACT IN THE CASE OF A TOWNSHIP TEACHER WAS
UNCONSTITUTIONALLY IMPAIRED BY THE ACT OF 1933.  P. 104. 

8.  ALTHOUGH EVERY CONTRACT IS MADE SUBJECT TO THE IMPLIED CONDITION
THAT ITS FULFILLMENT MAY BE FRUSTRATED BY PROPER EXERCISE OF THE POLICE
POWER, YET IN ORDER TO HAVE THIS EFFECT THE EXERCISE OF THE POWER MUST
BE FOR AN END WHICH IS IN FACT PUBLIC AND THE MEANS ADOPTED MUST BE
REASONABLY ADAPTED TO THAT END.  P. 108. 

9.  THE STATE COURT'S DECISION OF A FEDERAL QUESTION IN FAVOR OF THE
DEFENDANT BEING ERRONEOUS, AND IT NOT HAVING PASSED UPON A SECOND
GROUND OF DEMURRER WHICH APPEARS TO INVOLVE NO FEDERAL QUESTION, AND
WHICH MAY PRESENT A DEFENSE STILL OPEN TO THE DEFENDANT, THE CAUSE IS
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  P. 109. 

INDIANA EX REL. ANDERSON V. BRAND, TRUSTEE. 

CERTIORARI TO THE SUPREME COURT OF INDIANA. 

CERTIORARI, 302 U.S. 678, TO REVIEW A JUDGMENT AFFIRMING THE
DISMISSAL, ON DEMURRER TO THE COMPLAINT, OF AN ACTION FOR A WRIT OF
MANDATE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER SOUGHT A WRIT OF MANDATE TO COMPEL THE RESPONDENT  FN1
TO CONTINUE HER IN EMPLOYMENT AS A PUBLIC SCHOOL TEACHER.  HER
COMPLAINT ALLEGED THAT AS A DULY LICENSED TEACHER SHE ENTERED INTO A
CONTRACT IN SEPTEMBER, 1924, TO TEACH IN THE TOWNSHIP SCHOOLS AND,
PURSUANT TO SUCCESSIVE CONTRACTS, TAUGHT CONTINUOUSLY TO AND INCLUDING
THE SCHOOL YEAR 1932-1933; THAT HER CONTRACTS FOR THE SCHOOL YEARS 1931
1932 AND 1932-1933 CONTAINED THIS CLAUSE: "IT IS FURTHER AGREED BY THE
CONTRACTING PARTIES THAT ALL OF THE PROVISIONS OF THE TEACHERS' TENURE
LAW, APPROVED MARCH 8, 1927, SHALL BE IN FULL FORCE AND EFFECT IN THIS
CONTRACT"; AND THAT BY FORCE OF THAT ACT SHE HAD A CONTRACT, INDEFINITE
IN DURATION, WHICH COULD BE CANCELLED BY THE RESPONDENT ONLY IN THE
MANNER AND FOR THE CAUSES SPECIFIED IN THE ACT.  SHE CHARGED THAT IN
JULY, 1933, THE RESPONDENT NOTIFIED HER HE PROPOSED TO CANCEL HER
CONTRACT FOR CAUSE; THAT, AFTER A HEARING, HE ADHERED TO HIS DECISION
AND THE COUNTY SUPERINTENDENT AFFIRMED HIS ACTION; THAT, DESPITE WHAT
OCCURRED IN JULY, 1933, THE PETITIONER WAS PERMITTED TO TEACH DURING
THE SCHOOL YEAR 1933-1934 AND THE RESPONDENT WAS PRESENTLY THREATENING
TO TERMINATE HER EMPLOYMENT AT THE END OF THAT YEAR.  THE COMPLAINT
ALLEGED THE TERMINATION OF HER EMPLOYMENT WOULD BE A BREACH OF HER
CONTRACT WITH THE SCHOOL CORPORATION.  THE RESPONDENT DEMURRED ON THE
GROUNDS THAT (1) THE COMPLAINT DISCLOSED THE MATTERS PLEADED HAD BEEN
SUBMITTED TO THE RESPONDENT AND THE COUNTY SUPERINTENDENT WHO WERE
AUTHORIZED TO TRY THE ISSUES AND HAD LAWFULLY DETERMINED THEM IN FAVOR
OF THE RESPONDENT; AND (2) THE TEACHERS' TENURE LAW HAD BEEN REPEALED
IN RESPECT OF TEACHERS IN TOWNSHIP SCHOOLS.  THE DEMURRER WAS SUSTAINED
AND THE PETITIONER APPEALED TO THE STATE SUPREME COURT WHICH AFFIRMED
THE JUDGMENT.  FN2  THE COURT DID NOT DISCUSS THE FIRST GROUND OF
DEMURRER RELATING TO THE ACTION TAKEN IN THE SCHOOL YEAR 1932-1933, BUT
RESTED ITS DECISION UPON THE SECOND, THAT, BY AN ACT OF 1933, THE
TEACHERS' TENURE LAW HAD BEEN REPEALED AS RESPECTS TEACHERS IN TOWNSHIP
SCHOOLS; AND HELD THAT THE REPEAL DID NOT DEPRIVE THE PETITIONER OF A
VESTED PROPERTY RIGHT AND DID NOT IMPAIR HER CONTRACT WITHIN THE
MEANING OF THE CONSTITUTION.  IN ITS ORIGINAL OPINION THE COURT SAID:
"THE RELATRIX CONTENDS  ...  THAT, HAVING BECOME A PERMANENT TEACHER
UNDER THE TEACHERS' TENURE LAW BEFORE THE AMENDMENT, SHE HAD A VESTED
PROPERTY RIGHT IN HER INDEFINITE CONTRACT, WHICH MAY NOT BE IMPAIRED
UNDER THE CONSTITUTION.  THE QUESTION IS WHETHER THERE IS A VESTED
RIGHT IN A PERMANENT TEACHER'S CONTRACT; WHETHER, UNDER THE TENURE LAW,
THERE IS A GRANT WHICH CANNOT LAWFULLY BE IMPAIRED BY A REPEAL OF THE
STATUTE."  WHERE THE STATE COURT DOES NOT DECIDE AGAINST A PETITIONER
OR APPELLANT UPON AN INDEPENDENT STATE GROUND, BUT DEEMING THE FEDERAL
QUESTION TO BE BEFORE IT, ACTUALLY ENTERTAINS AND DECIDES THAT QUESTION
ADVERSELY TO THE FEDERAL RIGHT ASSERTED, THIS COURT HAS JURISDICTION TO
REVIEW THE JUDGMENT IF, AS HERE, IT IS A FINAL JUDGMENT.  FN3  WE
CANNOT REFUSE JURISDICTION BECAUSE THE STATE COURT MIGHT HAVE BASED ITS
DECISION, CONSISTENTLY WITH THE RECORD, UPON AN INDEPENDENT AND
ADEQUATE NON-FEDERAL GROUND.  AND SINCE THE AMENDMENT OF THE JUDICIARY
ACT OF 1789  FN4  BY THE ACT OF FEBRUARY 5, 1867  FN5  IT HAS ALWAYS
BEEN HELD THIS COURT MAY EXAMINE THE OPINION OF THE STATE COURT TO
ASCERTAIN WHETHER A FEDERAL QUESTION WAS RAISED AND DECIDED, AND
WHETHER THE COURT RESTED ITS JUDGMENT ON AN ADEQUATE NON-FEDERAL
GROUND.  FN6 ANY AMBIGUITY ARISING FROM THE GENERALITY OF THE COURT'S
REFERENCE TO THE CONSTITUTION IS RESOLVED BY A CERTIFICATE SIGNED BY
ALL THE JUSTICES OF THE COURT, MADE A PART OF THE RECORD, TO THE EFFECT
THAT THE REFERENCE TO THE CONSTITUTION IN THE OPINION WAS TO ART. I,
SEC. 10 OF THE CONSTITUTION OF THE UNITED STATES.  FN7  IT THUS
APPEARING THAT THE CONSTITUTIONAL VALIDITY OF THE REPEALING ACT WAS
DRAWN IN QUESTION, AND THE STATUTE SUSTAINED, WE ISSUED THE WRIT OF
CERTIORARI. 

THE COURT BELOW HOLDS THAT IN INDIANA TEACHERS' CONTRACTS ARE MADE
FOR BUT ONE YEAR; THAT THERE IS NO CONTRACTUAL RIGHT TO BE CONTINUED AS
A TEACHER FROM YEAR TO YEAR; THAT THE LAW GRANTS A PRIVILEGE TO ONE WHO
HAS TAUGHT FIVE YEARS AND SIGNED A NEW CONTRACT TO CONTINUE IN
EMPLOYMENT UNDER GIVEN CONDITIONS; THAT THE STATUTE IS DIRECTED MERELY
TO THE EXERCISE OF THEIR POWERS BY THE SCHOOL AUTHORITIES AND THE
POLICY THEREIN EXPRESSED MAY BE ALTERED AT THE WILL OF THE LEGISLATURE;
THAT IN ENACTING LAWS FOR THE GOVERNMENT OF PUBLIC SCHOOLS THE
LEGISLATURE EXERCISES A FUNCTION OF SOVEREIGNTY AND THE POWER TO
CONTROL PUBLIC POLICY IN RESPECT OF THEIR MANAGEMENT AND OPERATION
CANNOT BE CONTRACTED AWAY BY ONE LEGISLATURE SO AS TO CREATE A
PERMANENT PUBLIC POLICY UNCHANGEABLE BY SUCCEEDING LEGISLATURES.  IN
THE ALTERNATIVE THE COURT DECLARES THAT IF THE RELATIONSHIP BE
CONSIDERED AS CONTROLLED BY THE RULES OF PRIVATE CONTRACT THE PROVISION
FOR REEMPLOYMENT FROM YEAR TO YEAR IS UNENFORCEABLE FOR WANT OF
MUTUALITY. 

AS IN MOST CASES BROUGHT TO THIS COURT UNDER THE CONTRACT CLAUSE OF
THE CONSTITUTION, THE QUESTION IS AS TO THE EXISTENCE AND NATURE OF THE
CONTRACT AND NOT AS TO THE CONSTRUCTION OF THE LAW WHICH IS SUPPOSED TO
IMPAIR IT.  THE PRINCIPAL FUNCTION OF A LEGISLATIVE BODY IS NOT TO MAKE
CONTRACTS BUT TO MAKE LAWS WHICH DECLARE THE POLICY OF THE STATE AND
ARE SUBJECT TO REPEAL WHEN A SUBSEQUENT LEGISLATURE SHALL DETERMINE TO
ALTER THAT POLICY.  NEVERTHELESS, IT IS ESTABLISHED THAT A LEGISLATIVE
ENACTMENT MAY CONTAIN PROVISIONS WHICH, WHEN ACCEPTED AS THE BASIS OF
ACTION BY INDIVIDUALS, BECOME CONTRACTS BETWEEN THEM AND THE STATE OR
ITS SUBDIVISIONS WITHIN THE PROTECTION OF ART. I, SEC. 10.  FN8  IF THE
PEOPLE'S REPRESENTATIVES DEEM IT IN THE PUBLIC INTEREST THEY MAY ADOPT
A POLICY OF CONTRACTING IN RESPECT OF PUBLIC BUSINESS FOR A TERM LONGER
THAN THE LIFE OF THE CURRENT SESSION OF THE LEGISLATURE.  THIS THE
PETITIONER CLAIMS HAS BEEN DONE WITH RESPECT TO PERMANENT TEACHERS. 
THE SUPREME COURT HAS DECIDED, HOWEVER, THAT IT IS THE STATE'S POLICY
NOT TO BIND SCHOOL CORPORATIONS BY CONTRACT FOR MORE THAN ONE YEAR. 

ON SUCH A QUESTION, ONE PRIMARILY OF STATE LAW, WE ACCORD RESPECTFUL
CONSIDERATION AND GREAT WEIGHT TO THE VIEWS OF THE STATE'S HIGHEST
COURT BUT, IN ORDER THAT THE CONSTITUTIONAL MANDATE MAY NOT BECOME A
DEAD LETTER, WE ARE BOUND TO DECIDE FOR OURSELVES WHETHER A CONTRACT
WAS MADE, WHAT ARE ITS TERMS AND CONDITIONS, AND WHETHER THE STATE HAS,
BY LATER LEGISLATION, IMPAIRED ITS OBLIGATION.  FN9  THIS INVOLVES AN
APPRAISAL OF THE STATUTES OF THE STATE AND THE DECISIONS OF ITS
COURTS. 

THE COURTS OF INDIANA HAVE LONG RECOGNIZED THAT THE EMPLOYMENT OF
SCHOOL TEACHERS WAS CONTRACTUAL AND HAVE AFFORDED RELIEF IN ACTIONS
UPON TEACHERS' CONTRACTS.  FN10  AN ACT ADOPTED IN 1899  FN11  REQUIRED
ALL CONTRACTS BETWEEN TEACHERS AND SCHOOL CORPORATIONS TO BE IN
WRITING, SIGNED BY THE PARTIES TO BE CHARGED, AND TO BE MADE A MATTER
OF PUBLIC RECORD.  A STATUTE OF 1921 FN12  ENACTED THAT EVERY SUCH
CONTRACT SHOULD BE IN WRITING AND SHOULD STATE THE DATE OF THE
BEGINNING OF THE SCHOOL TERM, THE NUMBER OF MONTHS THEREIN, THE AMOUNT
OF THE SALARY FOR THE TERM, AND THE NUMBER OF PAYMENTS TO BE MADE
DURING THE SCHOOL YEAR. 

IN 1927 THE STATE ADOPTED THE TEACHERS' TENURE ACT  FN13  UNDER WHICH
THE PRESENT CONTROVERSY ARISES.  THE PERTINENT PORTIONS ARE COPIED IN
THE MARGIN.  FN14  BY THIS ACT IT WAS PROVIDED THAT A TEACHER WHO HAS
SERVED UNDER CONTRACT FOR FIVE OR MORE SUCCESSIVE YEARS, AND THEREAFTER
ENTERS INTO A CONTRACT FOR FURTHER SERVICE WITH THE SCHOOL CORPORATION,
SHALL BECOME A PERMANENT TEACHER AND THE CONTRACT, UPON THE EXPIRATION
OF ITS STATED TERM, SHALL BE DEEMED TO CONTINUE IN EFFECT FOR AN
INDEFINITE PERIOD, SHALL BE KNOWN AS AN INDEFINITE CONTRACT, AND SHALL
REMAIN IN FORCE UNLESS SUCCEEDED BY A NEW CONTRACT OR CANCELLED AS
PROVIDED IN THE ACT.  THE CORPORATION MAY CANCEL THE CONTRACT, AFTER
NOTICE AND HEARING, FOR INCOMPETENCY, INSUBORDINATION, NEGLECT OF DUTY,
IMMORALITY, JUSTIFIABLE DECREASE IN THE NUMBER OF TEACHING POSITIONS,
OR OTHER GOOD OR JUST CAUSE, BUT NOT FOR POLITICAL OR PERSONAL
REASONS.  THE TEACHER MAY NOT CANCEL THE CONTRACT DURING THE SCHOOL
TERM NOR FOR A PERIOD OF THIRTY DAYS PREVIOUS TO THE BEGINNING OF ANY
TERM (UNLESS BY MUTUAL AGREEMENT) AND MAY CANCEL ONLY UPON FIVE DAYS'
NOTICE. 

BY AN AMENDATORY ACT OF 1933 FN15  TOWNSHIP SCHOOL CORPORATIONS WERE
OMITTED FROM THE PROVISIONS OF THE ACT OF 1927.  THE COURT BELOW
CONSTRUED THIS ACT AS REPEALING THE ACT OF 1927 SO FAR AS TOWNSHIP
SCHOOLS AND TEACHERS ARE CONCERNED AND AS LEAVING THE RESPONDENT FREE
TO TERMINATE THE PETITIONER'S EMPLOYMENT.  BUT WE ARE OF OPINION THAT
THE PETITIONER HAD A VALID CONTRACT WITH THE RESPONDENT, THE OBLIGATION
OF WHICH WOULD BE IMPAIRED BY THE TERMINATION OF HER EMPLOYMENT. 

WHERE THE CLAIM IS THAT THE STATE'S POLICY EMBODIED IN A STATUTE IS
TO BIND ITS INSTRUMENTALITIES BY CONTRACT, THE CARDINAL INQUIRY IS AS
TO THE TERMS OF THE STATUTE SUPPOSED TO CREATE SUCH A CONTRACT.  THE
STATE LONG PRIOR TO THE ADOPTION OF THE ACT OF 1927 REQUIRED THE
EXECUTION OF WRITTEN CONTRACTS BETWEEN TEACHERS AND SCHOOL
CORPORATIONS, SPECIFIED CERTAIN SUBJECTS WITH WHICH SUCH CONTRACTS MUST
DEAL, AND REQUIRED THAT THEY BE MADE A MATTER OF PUBLIC RECORD.  THESE
WERE ANNUAL CONTRACTS, COVERING A SINGLE SCHOOL TERM.  THE ACT OF 1927
ANNOUNCED A NEW POLICY THAT A TEACHER WHO HAD SERVED FOR FIVE YEARS
UNDER SUCCESSIVE CONTRACTS, UPON THE EXECUTION OF ANOTHER WAS TO BECOME
A PERMANENT TEACHER AND THE LAST CONTRACT WAS TO BE INDEFINITE AS TO
DURATION AND TERMINABLE BY EITHER PARTY ONLY UPON COMPLIANCE WITH THE
CONDITIONS SET OUT IN THE STATUTE.  THE POLICY WHICH INDUCED THE
LEGISLATION EVIDENTLY WAS THAT THE TEACHER SHOULD HAVE PROTECTION
AGAINST THE EXERCISE OF THE RIGHT, WHICH WOULD OTHERWISE INHERE IN THE
EMPLOYER, OF TERMINATING THE EMPLOYMENT AT THE END OF ANY SCHOOL TERM
WITHOUT ASSIGNED REASONS AND SOLELY AT THE EMPLOYER'S PLEASURE.  THE
STATE COURTS IN EARLIER CASES SO DECLARED.  FN16 

THE TITLE OF THE ACT IS COUCHED IN TERMS OF CONTRACT.  IT SPEAKS OF
THE MAKING AND CANCELLING OF INDEFINITE CONTRACTS.  IN THE BODY THE
WORD "CONTRACT" APPEARS TEN TIMES IN SEC. 1, DEFINING THE RELATIONSHIP;
ELEVEN TIMES IN SEC. 2, RELATING TO THE TERMINATION OF THE EMPLOYMENT
BY THE EMPLOYER, AND FOUR TIMES IN SEC. 4, STATING THE CONDITIONS OF
TERMINATION BY THE TEACHER. 

THE TENOR OF THE ACT INDICATES THAT THE WORD "CONTRACT" WAS NOT USED
INADVERTENTLY OR IN OTHER THAN ITS USUAL LEGAL MEANING.  BY SEC. 6 IT
IS EXPRESSLY PROVIDED THAT THE ACT IS A SUPPLEMENT TO THAT OF MARCH 7,
1921, SUPRA, REQUIRING TEACHERS' EMPLOYMENT CONTRACTS TO BE IN
WRITING.  BY SEC. 1 IT IS PROVIDED THAT THE WRITTEN CONTRACT OF A
PERMANENT TEACHER "SHALL BE DEEMED TO CONTINUE IN EFFECT FOR AN
INDEFINITE PERIOD AND SHALL BE KNOWN AS AN INDEFINITE CONTRACT."  SUCH
AN INDEFINITE CONTRACT IS TO REMAIN IN FORCE UNLESS SUCCEEDED BY A NEW
CONTRACT SIGNED BY BOTH PARTIES OR CANCELLED AS PROVIDED IN SEC. 2.  NO
MORE APT LANGUAGE COULD BE EMPLOYED TO DEFINE A CONTRACTUAL
RELATIONSHIP.  BY SEC. 2 IT IS ENACTED THAT SUCH INDEFINITE CONTRACTS
MAY BE CANCELLED BY THE SCHOOL CORPORATION ONLY IN THE MANNER
SPECIFIED.  THE ADMISSIBLE GROUNDS OF CANCELLATION, AND THE METHOD BY
WHICH THE EXISTENCE OF SUCH GROUNDS SHALL BE ASCERTAINED AND MADE A
MATTER OF RECORD, ARE CAREFULLY SET OUT.  SECTION 4 PERMITS
CANCELLATION BY THE TEACHER ONLY AT CERTAIN TIMES CONSISTENT WITH THE
CONVENIENT ADMINISTRATION OF THE SCHOOL SYSTEM AND IMPOSES A SANCTION
FOR VIOLATION OF ITS REQUIREMENTS.  EXAMINATION OF THE ENTIRE ACT
CONVINCES US THAT THE TEACHER WAS BY IT ASSURED OF THE POSSESSION OF A
BINDING AND ENFORCEABLE CONTRACT AGAINST SCHOOL DISTRICTS. 

UNTIL ITS DECISION IN THE PRESENT CASE THE SUPREME COURT OF THE STATE
HAD UNIFORMLY HELD THAT THE TEACHER'S RIGHT TO CONTINUED EMPLOYMENT BY
VIRTUE OF THE INDEFINITE CONTRACT CREATED PURSUANT TO THE ACT WAS
CONTRACTUAL. 

IN SCHOOL CITY OF ELWOOD V. STATE EX REL. GRIFFIN, 203 IND. 626; 180
N.E. 471, IT WAS SAID (P. 634): 

"THE POSITION OF A TEACHER IN THE PUBLIC SCHOOLS IS NOT A PUBLIC
OFFICE, BUT AN EMPLOYMENT BY CONTRACT BETWEEN THE TEACHER AND THE
SCHOOL CORPORATION.  THE RELATION REMAINS CONTRACTUAL AFTER THE TEACHER
HAS, UNDER THE PROVISIONS OF A TEACHERS' TENURE LAW, BECOME A PERMANENT
TEACHER - BUT THE TERMS AND CONDITIONS OF THE CONTRACT ARE THEREAFTER
GOVERNED PRIMARILY BY THE STATUTE." 

IN KOSTANZER V. STATE, 205 IND. 536; 187 N.E. 337, AN ACTION IN
MANDATE TO COMPEL REINSTATEMENT OF A DISCHARGED TEACHER, IT WAS SAID
(P. 547): 

"IF APPELLEE'S POSITION IS NOT AN OFFICE APPELLANTS INSIST THAT
MANDAMUS IS NOT AVAILABLE FOR THE REASON THAT THE GRANTING OF MANDATORY
RELIEF RESULTS IN ENFORCING A PURELY CONTRACTUAL RIGHT.  IT IS TRUE
THAT MANDATORY RELIEF AGAINST APPELLANTS WILL RESULT IN ENFORCING
APPELLEE'S RIGHTS UNDER HER CONTRACT; BUT THE DUTY WHICH THE JUDGMENT
OF THE TRIAL COURT COMPELLED APPELLANTS TO PERFORM WAS A DUTY ENJOINED
BY STATUTE AND NOT BY CONTRACT.  THE CONTRACT BETWEEN APPELLANTS AND
APPELLEE CREATED A RELATION WHICH ENTITLED APPELLEE TO HAVE APPELLANTS
PERFORM THE DUTY IN QUESTION; BUT THE DUTY WAS NOT IMPOSED BY ANY
PROVISION OF THE CONTRACT."    AND IN THE SAME CASE IT WAS ALSO SAID
(PP. 548-549): 

"THE TENURE ACT PERMITS A TEACHER TO CANCEL HIS CONTRACT AT ANY TIME
AFTER THE CLOSE OF A SCHOOL TERM UP TO THIRTY DAYS PRIOR TO THE
BEGINNING OF THE NEXT SCHOOL TERM, PROVIDED FIVE DAYS' NOTICE IS GIVEN,
AND APPELLANT CONTENDS THAT THERE WAS NO CONTRACT BETWEEN APPELLEE AND
APPELLANTS FOR THE REASON 'THAT A CONTRACT WHICH DOES NOT BIND BOTH
PARTIES BINDS NEITHER OF THEM.'  THIS PROPOSITION IS UNDOUBTEDLY
SUPPORTED BY THE LAW OF CONTRACTS.  BUT THERE IS NOTHING IN THE LAW OF
CONTRACTS TO PREVENT ONE PARTY TO A CONTRACT GRANTING TO THE OTHER THE
PRIVILEGE OF RESCISSION OR CANCELLATION ON TERMS NOT RESERVED TO THE
FORMER PARTY.  THE LOCAL SCHOOL CORPORATIONS ARE AGENTS OF THE STATE IN
THE ADMINISTRATION OF THE PUBLIC SCHOOLS AND THE GENERAL ASSEMBLY HAS
THE POWER TO PRESCRIBE THE TERMS OF THE CONTRACT TO BE EXECUTED BY
THESE AGENTS." 

IN STATE V. BOARD OF SCHOOL COMMISSIONERS OF INDIANAPOLIS, 205 IND.
582; 187 N.E. 392, AN ACTION IN MANDATE TO COMPEL REINSTATEMENT OF A
DISCHARGED TEACHER, THE COURT REFERRED TO THE INDEFINITE CONTRACT OF A
PERMANENT TEACHER AND HELD THAT IT REMAINED IN FULL FORCE AND EFFECT
UNTIL SUCCEEDED BY A NEW CONTRACT OR CANCELLED AS PROVIDED IN SEC. 2 OF
THE ACT. 

IN ARBURN V. HUNT, 207 IND. 61; 191 N.E. 148, IT IS SAID:  "THE
SOURCE OF AUTHORITY FOR THE SO-CALLED PERMANENT TEACHER'S CONTRACT IS
THE STATUTE.  THE LEGISLATURE NEED NOT HAVE PROVIDED FOR SUCH
CONTRACTS, BUT, SINCE IT DID SO PROVIDE, THE ENTIRE STATUTE, WITH ALL
OF ITS PROVISIONS, MUST BE READ INTO AND CONSIDERED AS A PART OF THE
CONTRACT." 

WE THINK THE DECISION IN THIS CASE RUNS COUNTER TO THE POLICY EVINCED
BY THE ACT OF 1927, TO ITS EXPLICIT MANDATE AND TO EARLIER DECISIONS
CONSTRUING ITS PROVISIONS.  ALSO THAT THE DECISION IN PHELPS V. BOARD
OF EDUCATION, 300 U.S. 319, THAT THE ACT THERE CONSIDERED DID NOT
CREATE A CONTRACT, IS NOT, AS THE COURT BELOW SUGGESTS, AUTHORITY FOR A
LIKE RESULT HERE.  DODGE V. BOARD OF EDUCATION, 302 U.S. 74, ON WHICH
THE RESPONDENT RELIES IS DISTINGUISHABLE, BECAUSE THE STATUTE THERE
INVOLVED DID NOT PURPORT TO BIND THE RESPONDENT BY CONTRACT TO THE
PAYMENT OF RETIREMENT ANNUITIES, AND SIMILAR LEGISLATION IN RESPECT OF
OTHER MUNICIPAL EMPLOYEES HAD BEEN CONSISTENTLY CONSTRUED BY THE COURTS
AS NOT CREATING CONTRACTS. 

THE RESPONDENT URGES THAT EVERY CONTRACT IS SUBJECT TO THE POLICE
POWER AND THAT IN REPEALING THE TEACHERS' TENURE ACT THE LEGISLATURE
VALIDLY EXERCISED THAT RESERVED POWER OF THE STATE.  THE SUFFICIENT
ANSWER IS FOUND IN THE STATUTE.  BY SEC. 2 OF THE ACT OF 1927 POWER IS
GIVEN TO THE SCHOOL CORPORATION TO CANCEL A TEACHER'S INDEFINITE
CONTRACT FOR INCOMPETENCY, INSUBORDINATION (WHICH IS TO BE DEEMED TO
MEAN WILFUL REFUSAL TO OBEY THE SCHOOL LAWS OF THE STATE OR REASONABLE
RULES PRESCRIBED BY THE EMPLOYER), NEGLECT OF DUTY, IMMORALITY,
JUSTIFIABLE DECREASE IN THE NUMBER OF TEACHING POSITIONS OR OTHER GOOD
AND JUST CAUSE.  THE PERMISSIBLE REASONS FOR CANCELLATION COVER EVERY
CONCEIVABLE BASIS FOR SUCH ACTION GROWING OUT OF A DEFICIENT
PERFORMANCE OF THE OBLIGATIONS UNDERTAKEN BY THE TEACHER, AND
DIMINUTION OF THE SCHOOL REQUIREMENTS.  ALTHOUGH THE CAUSES SPECIFIED
CONSTITUTE IN THEMSELVES JUST AND REASONABLE GROUNDS FOR THE
TERMINATION OF ANY ORDINARY CONTRACT OF EMPLOYMENT, TO PRECLUDE THE
ASSUMPTION THAT ANY OTHER VALID GROUND WAS EXCLUDED BY THE ENUMERATION,
THE LEGISLATURE ADDED THAT THE RELATION MIGHT BE TERMINATED FOR ANY
OTHER GOOD AND JUST CAUSE.  THUS IN THE DECLARATION OF THE STATE'S
POLICY, AMPLE RESERVATIONS IN AID OF THE EFFICIENT ADMINISTRATION OF
THE SCHOOL SYSTEM WERE MADE.  THE EXPRESS PROHIBITIONS ARE THAT THE
CONTRACT SHALL NOT BE CANCELLED FOR POLITICAL OR PERSONAL REASONS.  WE
DO NOT THINK THE ASSERTED CHANGE OF POLICY EVIDENCED BY THE REPEAL OF
THE STATUTE IS THAT SCHOOL BOARDS MAY BE AT LIBERTY TO CANCEL A
TEACHER'S CONTRACT FOR POLITICAL OR PERSONAL REASONS.  WE DO NOT
UNDERSTAND THE RESPONDENT SO TO CONTEND.  THE MOST THAT CAN BE SAID FOR
HIS POSITION IS THAT, BY THE REPEAL, TOWNSHIP SCHOOL CORPORATIONS WERE
AGAIN PUT UPON THE BASIS OF ANNUAL CONTRACTS, RENEWABLE AT THE PLEASURE
OF THE BOARD.  IT IS SIGNIFICANT THAT THE ACT OF 1933 LEFT THE SYSTEM
OF PERMANENT TEACHERS AND INDEFINITE CONTRACTS UNTOUCHED AS RESPECTS
SCHOOL CORPORATIONS IN CITIES AND TOWNS OF THE STATE.  IT IS NOT
CONTENDED, NOR CAN IT BE THOUGHT, THAT THE LEGISLATURE OF 1933
DETERMINED THAT IT WAS AGAINST PUBLIC POLICY FOR SCHOOL DISTRICTS IN
CITIES AND TOWNS TO TERMINATE THE EMPLOYMENT OF TEACHERS OF FIVE OR
MORE YEARS' EXPERIENCE FOR POLITICAL OR PERSONAL REASONS AND TO PERMIT
CANCELLATION, FOR THE SAME REASONS, IN TOWNSHIPS. 

OUR DECISIONS RECOGNIZE THAT EVERY CONTRACT IS MADE SUBJECT TO THE
IMPLIED CONDITION THAT ITS FULFILLMENT MAY BE FRUSTRATED BY A PROPER
EXERCISE OF THE POLICE POWER BUT WE HAVE REPEATEDLY SAID THAT, IN ORDER
TO HAVE THIS EFFECT, THE EXERCISE OF THE POWER MUST BE FOR AN END WHICH
IS IN FACT PUBLIC AND THE MEANS ADOPTED MUST BE REASONABLY ADAPTED TO
THAT END,  FN17  AND THE SUPREME COURT OF INDIANA HAS TAKEN THE SAME
VIEW IN RESPECT OF LEGISLATION IMPAIRING THE OBLIGATION OF THE CONTRACT
OF A STATE INSTRUMENTALITY.  FN18  THE CAUSES OF CANCELLATION PROVIDED
IN THE ACT OF 1927 AND THE RETENTION OF THE SYSTEM OF INDEFINITE
CONTRACTS IN ALL MUNICIPALITIES EXCEPT TOWNSHIPS BY THE ACT OF 1933 ARE
PERSUASIVE THAT THE REPEAL OF THE EARLIER ACT BY THE LATTER WAS NOT AN
EXERCISE OF THE POLICE POWER FOR THE ATTAINMENT OF ENDS TO WHICH ITS
EXERCISE MAY PROPERLY BE DIRECTED. 

AS THE COURT BELOW HAS NOT PASSED UPON ONE OF THE GROUNDS OF DEMURRER
WHICH APPEARS TO INVOLVE NO FEDERAL QUESTION, AND MAY PRESENT A DEFENSE
STILL OPEN TO THE RESPONDENT, WE REVERSE THE JUDGMENT AND REMAND THE
CAUSE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 

FN1  THE PROCEEDING WAS INSTITUTED AGAINST THE RESPONDENT'S
PREDECESSOR WHO THEN HELD THE OFFICE OF SCHOOL TRUSTEE; THE RESPONDENT
WAS SUBSEQUENTLY SUBSTITUTED AS DEFENDANT.  NOTHING TURNS ON THIS
SUBSTITUTION AND BOTH TRUSTEES WILL BE REFERRED TO AS THE RESPONDENT. 

FN2  5 N.E.(2D) 531; ON REHEARING, 7 N.E.(2D) 777; DISSENTING OPINION
OF TREANOR, J., 5 N.E.(2D) 913. 

FN3  MURDOCK V. MEMPHIS, 20 WALL.  590, 635-6; HENDERSON BRIDGE CO.
V. HENDERSON, 173 U.S. 592, 608; ROGERS V. HENNEPIN COUNTY, 240 U.S.
184, 188-189; GRAYSON V. HARRIS, 267 U.S. 352, 358; VIRGINIA V.
IMPERIAL COAL SALES CO., 293 U.S. 15, 16; INTERNATIONAL STEEL CO. V.
NATIONAL SURETY CO., 297 U.S. 657, 666. 

FN4  SEC. 25, 1 STAT. 85. 

FN5  SEC. 2, 14 STAT. 386. 

FN6  MURDOCK V. MEMPHIS, 20 WALL.  590, 633-634; KREIGER V. SHELBY R.
CO., 125 U.S. 39, 44; BANK OF COMMERCE V. TENNESSEE, 163 U.S. 416, 421;
THOMPSON V. MAXWELL LAND GRANT CO., 168 U.S. 451, 456; COLUMBIA WATER
POWER CO. V. COLUMBIA ELECTRIC ST. RY. CO., 172 U.S. 475, 488-489; ABIE
STATE BANK V. BRYAN, 282 U.S. 765, 771; UTLEY V. ST. PETERSBURG, 292
U.S. 106, 111; FOX FILM CORP. V. MULLER, 296 U.S. 207, 209. 

FN7  INTERNATIONAL STEEL CO. V. NATIONAL SURETY CO., 297 U.S. 657,
662. 

FN8  NEW JERSEY V. YARD, 95 U.S. 104, 113, 114. 

FN9  PHELPS V. BOARD OF EDUCATION, 300 U.S. 319, 322, AND CASES
CITED. 

FN10  CITY OF CRAWFORDSVILLE V. HAYS, 42 IND. 200; CHARLESTOWN SCHOOL
TWP.  V. HAY, 74 IND. 127; HARRISON SCHOOL TWP.  V. MCGREGOR, 96 IND.
185; KIEFER V. TROY SCHOOL TWP., 102 IND. 279; 1 N.E. 560; SPARTA
SCHOOL TWP.  V. MENDELL, 138 IND. 188; 37 N.E. 604; SCHOOL CITY OF
LAFAYETTE V. BLOOM, 17 IND. APP. 461; 46 N.E. 1016; HENRY SCHOOL TWP. 
V. MEREDITH, 32 IND. APP. 607; 70 N.E. 393; GREGG SCHOOL TWP.  V.
HINSHAW, 76 IND. APP. 503; 132 N.E. 586. 

FN11  ACT OF FEB. 28, 1899, G.L. IND. 1899, P. 173, BURNS' IND. STAT.
ANN. 1933, SECS. 28-4302 AND 28-4303. 

FN12  ACT OF MARCH 7, 1921; ACTS OF 1921, P. 195; BURNS' IND. STAT.
ANN. 1933, SEC. 28-4304. 

FN13  ACT OF MARCH 8, 1927; ACTS OF 1927, P. 259, BURNS' IND. STAT.
ANN. SUPP. 1929, SEC. 6967.1. 

FN14  "SECTION 1.  BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE
OF INDIANA, THAT ANY PERSON WHO HAS SERVED OR WHO SHALL SERVE UNDER
CONTRACT AS A TEACHER IN ANY SCHOOL CORPORATION IN THE STATE OF INDIANA
FOR FIVE OR MORE SUCCESSIVE YEARS, AND WHO SHALL HEREAFTER ENTER INTO A
TEACHER'S CONTRACT FOR FURTHER SERVICE WITH SUCH CORPORATION, SHALL
THEREUPON BECOME A PERMANENT TEACHER OF SUCH SCHOOL CORPORATION....
UPON THE EXPIRATION OF ANY CONTRACT BETWEEN SUCH SCHOOL CORPORATION AND
A PERMANENT TEACHER, SUCH CONTRACT SHALL BE DEEMED TO CONTINUE IN
EFFECT FOR AN INDEFINITE PERIOD AND SHALL BE KNOWN AS AN INDEFINITE
CONTRACT.  SUCH AN INDEFINITE CONTRACT SHALL REMAIN IN FORCE UNLESS
SUCCEEDED BY A NEW CONTRACT SIGNED BY BOTH PARTIES OR UNLESS IT SHALL
BE CANCELLED AS PROVIDED IN SECTION 2 OF THIS ACT:  PROVIDED, THAT
TEACHERS' CONTRACTS SHALL PROVIDE FOR THE ANNUAL DETERMINATION OF THE
DATE OF BEGINNING AND LENGTH OF SCHOOL TERMS BY THE SCHOOL CORPORATION:
AND, PROVIDED, FURTHER, THAT TEACHERS' CONTRACTS MAY CONTAIN
PROVISIONS FOR THE FIXING OF THE AMOUNT OF ANNUAL COMPENSATION FROM
YEAR TO YEAR BY A SALARY SCHEDULE ADOPTED BY THE SCHOOL CORPORATION AND
SUCH SCHEDULE SHALL BE DEEMED TO BE A PART OF SUCH CONTRACT:  AND,
PROVIDED, FURTHER, THAT SUCH SCHEDULE MAY BE CHANGED BY SUCH SCHOOL
CORPORATION ON OR BEFORE MAY 1ST OF ANY YEAR, SUCH CHANGES TO BECOME
EFFECTIVE AT THE BEGINNING OF THE FOLLOWING SCHOOL YEAR: PROVIDED, THAT
ALL TEACHERS AFFECTED BY SUCH CHANGES SHALL BE FURNISHED WITH PRINTED
COPIES OF SUCH CHANGED SCHEDULE WITHIN THIRTY DAYS AFTER ITS ADOPTION. 

"SEC. 2.  ANY INDEFINITE CONTRACT WITH A PERMANENT TEACHER AS DEFINED
IN SECTION 1 OF THIS ACT MAY BE CANCELLED ONLY IN THE FOLLOWING MANNER:
NOT LESS THAN THIRTY DAYS NOR MORE THAN FORTY DAYS BEFORE THE
CONSIDERATION BY ANY SCHOOL CORPORATION OF THE CANCELLATION OF ANY SUCH
CONTRACT, SUCH TEACHER SHALL BE NOTIFIED IN WRITING OF THE EXACT DATE,
TIME WHEN AND PLACE WHERE SUCH CONSIDERATION IS TO TAKE PLACE; AND SUCH
TEACHER SHALL BE FURNISHED A WRITTEN STATEMENT OF THE REASONS FOR SUCH
CONSIDERATION, WITHIN FIVE DAYS AFTER ANY WRITTEN REQUEST FOR SUCH
STATEMENT; AND SUCH TEACHER SHALL, UPON WRITTEN REQUEST FOR A HEARING,
FILED WITHIN FIFTEEN DAYS AFTER THE RECEIPT BY SAID TEACHER OF NOTICE
OF DATE, TIME AND PLACE OF SUCH CONSIDERATION, BE GIVEN SUCH A HEARING
BEFORE THE SCHOOL BOARD, IN THE CASE OF CITIES AND TOWNS, AND BEFORE
THE TOWNSHIP TRUSTEE, IN THE CASE OF TOWNSHIPS; SUCH HEARING SHALL BE
HELD NOT LESS THAN FIVE DAYS AFTER SUCH REQUEST IS FILED AND SUCH
TEACHER SHALL BE GIVEN NOT LESS THAN FIVE DAYS' NOTICE OF THE TIME AND
PLACE OF SUCH HEARING.  SUCH TEACHER, AT THE HEARING, SHALL HAVE A
RIGHT TO A FULL STATEMENT OF THE REASONS FOR THE PROPOSED CANCELLATION
OF SUCH CONTRACT, AND SHALL HAVE A RIGHT TO BE HEARD, TO PRESENT THE
TESTIMONY OF WITNESSES AND OTHER EVIDENCE BEARING UPON THE REASONS FOR
THE PROPOSED CANCELLATION OF SUCH CONTRACT.  NO SUCH CONTRACT SHALL BE
CANCELLED UNTIL THE DATE SET FOR CONSIDERATION OF THE CANCELLATION OF
SUCH CONTRACT; NOR UNTIL AFTER A HEARING IS HELD, IF SUCH HEARING IS
REQUESTED BY SAID TEACHER; NOR UNTIL, IN THE CASE OF TEACHERS,
SUPERVISORS, AND PRINCIPALS, THE CITY OR TOWN SUPERINTENDENTS, IN
CITIES AND TOWNS, AND THE COUNTY SUPERINTENDENTS, IN TOWNSHIPS AND IN
CITIES AND TOWNS NOT HAVING SUPERINTENDENTS, SHALL HAVE GIVEN THE
SCHOOL CORPORATION HIS RECOMMENDATIONS THEREON, AND IT SHALL BE THE
DUTY OF SUCH SUPERINTENDENT TO PRESENT SUCH RECOMMENDATIONS UPON FIVE
DAYS' WRITTEN NOTICE TO HIM BY SUCH SCHOOL CORPORATION....
CANCELLATION OF AN INDEFINITE CONTRACT OF A PERMANENT TEACHER MAY BE
MADE FOR INCOMPETENCY, INSUBORDINATION (WHICH SHALL BE DEEMED TO MEAN A
WILFUL REFUSAL TO OBEY THE SCHOOL LAWS OF THIS STATE OR REASONABLE
RULES PRESCRIBED FOR THE GOVERNMENT OF THE PUBLIC SCHOOLS OF SUCH
CORPORATION), NEGLECT OF DUTY, IMMORALITY, JUSTIFIABLE DECREASE IN THE
NUMBER OF TEACHING POSITIONS OR OTHER GOOD AND JUST CAUSE, BUT MAY NOT
BE MADE FOR POLITICAL OR PERSONAL REASONS:... 

"SEC. 4.  NO PERMANENT TEACHER SHALL BE PERMITTED TO CANCEL HIS
INDEFINITE CONTRACT DURING THE SCHOOL TERM FOR WHICH HIS SAID CONTRACT
IS IN EFFECT NOR FOR A PERIOD OF THIRTY (30) DAYS PREVIOUS TO THE
BEGINNING OF SUCH SCHOOL TERM UNLESS SUCH CANCELLATION IS MUTUALLY
AGREED UPON; SUCH PERMANENT TEACHER SHALL BE PERMITTED TO CANCEL HIS
INDEFINITE CONTRACT AT ANY OTHER TIME BY GIVING A FIVE DAYS' NOTICE TO
THE SCHOOL CORPORATION.  ANY PERMANENT TEACHER CANCELLING HIS
INDEFINITE CONTRACT IN ANY OTHER MANNER THAN IN THIS SECTION PROVIDED
SHALL BE DEEMED GUILTY OF UNPROFESSIONAL CONDUCT AND THE STATE
SUPERINTENDENT IS HEREBY AUTHORIZED TO SUSPEND THE LICENSE OF SUCH
TEACHER FOR A PERIOD OF NOT EXCEEDING ONE YEAR.... 

"SEC. 6.  THIS ACT SHALL BE CONSTRUED AS SUPPLEMENTARY TO AN ACT OF
THE GENERAL ASSEMBLY, PAGE 195, ACTS 1921, ENTITLED, 'AN ACT CONCERNING
TEACHERS' CONTRACTS AND PROVIDING FOR THE REPEAL OF CONFLICTING
LAWS.'" 

FN15  ACT OF MARCH 1, 1933, ACTS OF 1933, P. 716, BURNS' IND. STAT.
ANN. 1933, SEC. 28-4307. 

FN16  RATCLIFF V. DICK JOHNSON SCHOOL TWP., 204 IND. 525; 185 N.E.
143; KOSTANZER V. STATE, 205 IND. 536; 187 N.E. 337; STATE V. STOUT,
206 IND. 58; 187 N.E. 267; ARBURN V. HUNT, 207 IND. 61; 191 N.E. 148. 
FN17  HOME BDG.  & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 438; WORTHEN
CO. V. THOMAS, 292 U.S. 426, 431, 432; WORTHEN CO. V. KAVANAUGH, 295
U.S. 56, 60; TREIGLE V. ACME HOMESTEAD ASSN., 297 U.S. 189, 197. 

FN18  CENTRAL UNION TEL. CO. V. INDIANAPOLIS TEL. CO., 189 IND. 210;
126 N.E. 628; DOWNING V. INDIANA STATE BOARD OF AGRICULTURE, 129 IND.
443; 28 N.E. 123. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING.    IN MY OPINION THIS REVERSAL
UNCONSTITUTIONALLY LIMITS THE RIGHT OF INDIANA TO CONTROL INDIANA'S
PUBLIC SCHOOL SYSTEM.  I BELIEVE THE JUDGMENT SHOULD BE AFFIRMED
BECAUSE: 

(1)  IT DOES NOT APPEAR IN THE RECORD THAT A FEDERAL QUESTION WAS
NECESSARILY INVOLVED IN THE DECISION OF THE STATE COURT; FN1 

(2)  THE RECORD DOES NOT DISCLOSE BEYOND A REASONABLE DOUBT  FN2
THAT INDIANA, BY THE TEACHERS ACT OF 1927, SURRENDERED ITS SOVEREIGN,
GOVERNMENTAL RIGHT TO CHANGE AND ALTER AT WILL LEGISLATIVE POLICY
RELATED TO THE PUBLIC WELFARE, OR THAT ITS LEGISLATURE HAD THE POWER TO
DO SO. 

FIRST.  IT DOES NOT APPEAR FROM THE RECORD THAT A FEDERAL QUESTION
"WAS NECESSARILY INVOLVED IN THE DECISION; AND THAT THE STATE COURT
COULD NOT HAVE GIVEN THE JUDGMENT OR DECREE WHICH THEY PASSED, WITHOUT
DECIDING IT."  FN3  THEREFORE, "IT IS A MATTER OF NO CONSEQUENCE TO US
THAT THE COURT MAY HAVE GONE FURTHER AND DECIDED A FEDERAL QUESTION." 
FN4  "WHERE A CASE IN THIS COURT CAN BE DECIDED WITHOUT REFERENCE TO
QUESTIONS ARISING UNDER THE FEDERAL CONSTITUTION, THAT COURSE IS
USUALLY PURSUED AND IS NOT DEPARTED FROM WITHOUT IMPORTANT REASONS." 
FN5 

PETITIONER'S COMPLAINT DISCLOSED:  THAT, AFTER A HEARING, SHE WAS
REMOVED FROM HER POSITION AS A TEACHER FOR CAUSES INCLUDING THOSE SET
OUT IN THE STATUTE, I.E., (1) "NEGLECT OF DUTY" AND (2) "FOR OTHER GOOD
AND JUST CAUSE"; AND THAT THE COUNTY SUPERINTENDENT, ON APPEAL,
APPROVED HER REMOVAL.  A DEMURRER WAS SUSTAINED TO THE COMPLAINT.  THE
DEMURRER ASSIGNED THE GENERAL GROUND THAT THE COMPLAINT FAILED TO
"STATE FACTS SUFFICIENT TO CONSTITUTE A GOOD CAUSE OF ACTION."  ONE OF
THE SPECIFIC REASONS SET OUT FOR DEMURRER WAS THAT THE COMPLAINT SHOWED
ON ITS FACE THAT PETITIONER HAD BEEN REMOVED ONLY AFTER A PROPER NOTICE
AND HEARINGS BEFORE THE TOWNSHIP TRUSTEE AND THE COUNTY SUPERINTENDENT,
IN ACCORDANCE WITH THE REQUIREMENTS OF THE ACT. 

UNDER THESE CIRCUMSTANCES, WE CAN CONSIDER THE DECISION OF THE
INDIANA COURTS AS BASED ON A FINDING OF INADEQUACY IN PETITIONER'S
COMPLAINT UNDER INDIANA LAW.  THIS COURT DOES NOT DECIDE "QUESTIONS OF
A CONSTITUTIONAL NATURE UNLESS ABSOLUTELY NECESSARY TO A DECISION OF
THE CASE."  FN6 WE SHOULD NOT DEPART FROM THIS POLICY IN ORDER TO
STRIKE DOWN A LAW PASSED BY A STATE IN ITS SOVEREIGN CAPACITY TO
ESTABLISH LEGISLATIVE POLICIES FOR THE EDUCATION OF ITS PEOPLE. 

SECOND.  THIS COURT HAS DECLARED THAT "...  NEITHER THE (FOURTEENTH)
AMENDMENT  ...  NOR ANY OTHER AMENDMENT, WAS DESIGNED TO INTERFERE WITH
THE POWER OF THE STATE, SOMETIMES TERMED ITS POLICE POWER, TO PRESCRIBE
REGULATIONS TO PROMOTE  ...  EDUCATION  ...  OF THE PEOPLE  ..."  FN7
ARTICLE 8, SEC. 1 OF THE CONSTITUTION OF INDIANA PROVIDES:  "KNOWLEDGE
AND LEARNING, GENERALLY DIFFUSED THROUGHOUT A COMMUNITY, BEING
ESSENTIAL TO THE PRESERVATION OF A FREE GOVERNMENT; IT SHALL BE THE
DUTY OF THE GENERAL ASSEMBLY  ...  TO PROVIDE, BY LAW, FOR A GENERAL
AND UNIFORM SYSTEM OF COMMON SCHOOLS, WHEREIN TUITION SHALL BE WITHOUT
CHARGE, AND EQUALLY OPEN TO ALL."  IN CARRYING OUT THIS CONSTITUTIONAL
MANDATE TO PROVIDE EDUCATION FOR THE PEOPLE OF THE STATE, THE
LEGISLATURE OF INDIANA HAS FOUND IT NECESSARY - AS HAVE OTHER STATES -
TO ALTER LEGISLATIVE POLICY FROM TIME TO TIME.  THE STATUTES AND THE
DECISIONS OF INDIANA INDICATE A LAUDABLE DESIRE AND A COMMENDABLE
EFFORT NOT ONLY TO PROVIDE SUFFICIENT FUNDS TO CARRY OUT THESE
EDUCATIONAL ASPIRATIONS OF THE STATE, BUT ALSO TO PROVIDE REASONABLE
SECURITY OF EMPLOYMENT FOR TEACHERS.  SUCH EFFORT BROUGHT ABOUT THE
"INDIANA TEACHERS TENURE ACT OF 1927."  THIS LAW PROVIDED THE
CONDITIONS UPON WHICH "PERMANENT" TEACHERS WITH "INDEFINITE CONTRACTS"
COULD BE REMOVED FROM THEIR POSITIONS, AND WAS EVIDENTLY INTENDED TO
PROVIDE STATUTORY SECURITY AGAINST THEIR DISCHARGE BY LOCAL SCHOOL
AUTHORITIES FOR ANY CAUSES EXCEPT THOSE SPECIFIED IN THE LAW.  THESE
"PERMANENT" TEACHERS COULD CANCEL THEIR "INDEFINITE CONTRACTS" UPON
FIVE DAYS' NOTICE AT ANY TIME EXCEPT DURING THE SCHOOL TERM OR FOR A
PERIOD OF THIRTY DAYS PREVIOUS TO IT. 

IN 1933, THE LEGISLATIVE REPRESENTATIVES OF THE PEOPLE OF INDIANA
DECIDED TO CHANGE THIS POLICY BY EXCLUDING TOWNSHIP SCHOOL CORPORATIONS
FROM ITS OPERATION.  THE CONTENTION HERE IS THAT THE STATUTORY TENURE
GIVEN TEACHERS UNDER THE 1927 ACT AMOUNTED TO CONTRACTS WITH THE STATE
WHICH COULD NOT BE IMPAIRED BY REPEAL OR MODIFICATION OF THE LAW. 

THE INDIANA SUPREME COURT HAS CONSISTENTLY HELD, EVEN BEFORE ITS
DECISION IN THIS CASE, THAT THE RIGHT OF TEACHERS, UNDER THE 1927 ACT,
TO SERVE UNTIL REMOVED FOR CAUSE, WAS NOT GIVEN BY CONTRACT, BUT BY
STATUTE.  SUCH WAS THE EXPRESS HOLDING IN THE TWO CASES CITED IN THE
MAJORITY OPINION:  KOSTANZER V. STATE, 205 IND. 536; 187 N.E. 337; AND
ELWOOD V. STATE, 203 IND. 626; 180 N.E. 471. 

IN KOSTANZER V. STATE, SUPRA, A TEACHER FILED PETITION FOR MANDAMUS
ALLEGING REMOVAL CONTRARY TO THE "INDEFINITE CONTRACT" OBLIGATION UNDER
THE ACT OF 1927.  MANDAMUS WAS OPPOSED AS AN IMPROPER REMEDY BECAUSE
THE TEACHERS SOUGHT TO COMPEL ACTION UNDER A TEACHERS TENURE
"CONTRACT."  DENYING THE CONTENTION THAT THE TEACHER'S RIGHTS WERE
FIXED BY CONTRACT, THE SUPREME COURT OF INDIANA SAID: 

"BUT THE DUTY WHICH THE JUDGMENT OF THE TRIAL COURT COMPELLED
APPELLANTS TO PERFORM WAS A DUTY ENJOINED BY STATUTE AND NOT BY
CONTRACT....  THE DUTY WAS NOT IMPOSED BY ANY PROVISION OF THE
CONTRACT.  IN SCHOOL CITY OF ELWOOD V. STATE EX REL. GRIFFIN, SUPRA,
THIS SAME CONTENTION WAS DISPOSED OF IN THE FOLLOWING LANGUAGE:  'IT IS
BECAUSE OF APPELLEES' RIGHT UNDER THIS STATUTE ...  THAT MANDAMUS IS
THE PROPER REMEDY IN THIS CASE....  A PUBLIC SCHOOL TEACHER WHO, UNDER
A POSITIVE PROVISION OF THE STATUTE, HAS A FIXED TENURE OF EMPLOYMENT
OR CAN BE REMOVED ONLY IN A CERTAIN MANNER PRESCRIBED BY THE STATUTE,
IS ENTITLED TO REINSTATEMENT IF HE HAS BEEN REMOVED FROM HIS POSITION
IN VIOLATION OF HIS STATUTORY RIGHTS.'" 

THESE CASES DEMONSTRATE THAT THE SUPREME COURT OF INDIANA HAS
UNIFORMLY HELD THAT TEACHERS DID NOT HOLD THEIR "INDEFINITE" TENURE
UNDER CONTRACT, BUT BY GRANT OF A REPEALABLE STATUTE.  IN ORDER TO HOLD
IN THIS CASE THAT A CONTRACT WAS IMPAIRED, IT IS NECESSARY TO CREATE A
CONTRACT UNAUTHORIZED BY THE INDIANA LEGISLATURE AND DECLARED TO BE NON
EXISTENT BY THE INDIANA SUPREME COURT. 

IN THE SIMILAR CASE OF PHELPS V. BOARD OF EDUCATION, 300 U.S. 319,
COMING TO THIS COURT FROM NEW JERSEY, THE SUPREME COURT OF THAT STATE
DECLARED THAT: 

"THE STATUS OF TENURE TEACHERS, WHILE IN ONE SENSE PERHAPS
CONTRACTUAL, IS IN ESSENCE DEPENDENT ON A STATUTE,  ...  WHICH THE
LEGISLATURE AT WILL MAY ABOLISH, OR WHOSE EMOLUMENTS IT MAY CHANGE." 

UNDER THE NEW JERSEY ACT, WHICH APPEARS IN THE MARGIN,  FN8  TEACHERS
COULD SERVE DURING "GOOD BEHAVIOR AND EFFICIENCY" AND SUBJECT TO
REMOVAL ONLY AFTER A HEARING AND FOR CAUSE.  THE SUPREME COURT OF NEW
JERSEY DECLARED THAT THE TENURE OF NEW JERSEY TEACHERS WAS "IN ONE
SENSE PERHAPS CONTRACTUAL."  THE SUPREME COURT OF INDIANA DECLARED THAT
THE TENURE OF INDIANA TEACHERS WAS NOT CONTRACTUAL.  YET THIS COURT IN
THE CASE OF PHELPS V. BOARD OF EDUCATION, SUPRA, DECIDED THAT NEW
JERSEY'S DISCHARGE OF ITS TEACHERS EMPLOYED BY THE STATE "IN A SENSE
PERHAPS CONTRACTUAL" DID NOT IMPAIR THEIR CONTRACTS.  THE COURT NOW
STRIKES DOWN INDIANA'S TEACHERS TENURE LAW AFTER REPEATED DECISIONS BY
THE STATE'S SUPREME COURT THAT THE TEACHERS TENURE IS NOT CONTRACTUAL. 
THE INTENT OF THE NEW JERSEY ACT AND THE INTENT OF THE INDIANA ACT WERE
EVIDENTLY IDENTICAL AND IN VIEW OF THIS FACT, I BELIEVE THAT THE
DECISION ON THE NEW JERSEY APPEAL AND THE MAJORITY DECISION ON THE
INDIANA APPEAL ARE IRRECONCILABLE. 

THE ACT OF 1927 CERTAINLY DOES NOT CLEARLY ESTABLISH THAT THE PEOPLE
OF INDIANA INTENDED TO SURRENDER THEIR SOVEREIGN RIGHT TO CHANGE THEIR
EDUCATIONAL POLICIES FROM TIME TO TIME TO MEET NEW NEEDS OR CHANGED
CONDITIONS.  UNDER THESE CIRCUMSTANCES "THE PRESUMPTION IS THAT SUCH A
LAW (TEACHERS TENURE LAW) IS NOT INTENDED TO CREATE PRIVATE CONTRACTUAL
OR VESTED RIGHTS BUT MERELY DECLARES A POLICY TO BE PURSUED UNTIL THE
LEGISLATURE SHALL ORDAIN OTHERWISE."  FN9 

IT IS THE END OF EVERY GOVERNMENT TO PROMOTE THE GENERAL WELFARE OF
ITS PEOPLE AND WE DO NOT ASSUME "THAT THE GOVERNMENT INTENDED TO
DIMINISH ITS POWER OF ACCOMPLISHING THE END FOR WHICH IT WAS CREATED." 
FN10 

THE SUPREME COURT OF INDIANA HERE HELD THAT "THE TENURE LAW DOES NOT
PURPORT TO GIVE A TEACHER A DEFINITE AND PERMANENT CONTRACT.  THE WORD
'INDEFINITE' IS USED IN THE STATUTE ITSELF....  THE TENURE STATUTE WAS
ONLY INTENDED AS A LIMITATION UPON THE PLENARY POWER OF LOCAL SCHOOL
OFFICIALS TO CANCEL CONTRACTS....  IT WAS NOT INTENDED AS, AND CANNOT
BE, A LIMITATION UPON THE POWER OF FUTURE LEGISLATURES TO CHANGE THE
LAW RESPECTING TEACHERS AND THEIR TENURES.  THESE ARE MATTERS OF PUBLIC
POLICY, OF PURELY GOVERNMENTAL CONCERN, IN WHICH THE LEGISLATIVE POWER
CANNOT BE EXHAUSTED OR CONSUMED, OR CONTRACTED AWAY, SO AS TO LIMIT THE
DISCRETION OF FUTURE GENERAL ASSEMBLIES."  FN11 

PRIOR TO THIS DECISION AND EVEN BEFORE THE 1927 ACT, THE SUPREME COURT
OF INDIANA HAD SAID: 

"WITH THAT (LEGISLATIVE) DETERMINATION (RELATING TO EDUCATIONAL
MATTERS) THE JUDICIARY CAN NO MORE RIGHTFULLY INTERFERE, THAN CAN THE
LEGISLATURE WITH A DECREE OR JUDGMENT PRONOUNCED BY A JUDICIAL
TRIBUNAL.... 

"AS THE POWER OVER SCHOOLS IS A LEGISLATIVE ONE, IT IS NOT EXHAUSTED
BY EXERCISE.  THE LEGISLATURE HAVING TRIED ONE PLAN IS NOT PRECLUDED
FROM TRYING ANOTHER.  IT HAS A CHOICE OF METHODS, AND MAY CHANGE ITS
PLANS AS OFTEN AS IT DEEMS NECESSARY OR EXPEDIENT; AND FOR MISTAKES OR
ABUSES IT IS ANSWERABLE TO THE PEOPLE, BUT NOT TO THE COURT."  FN12 

THE CLEAR PURPORT OF INDIANA LAW IS THAT ITS LEGISLATURE CANNOT
SURRENDER ANY PART OF ITS PLENARY CONSTITUTIONAL RIGHT TO REPEAL, ALTER
OR AMEND EXISTING LEGISLATION RELATING TO THE SCHOOL SYSTEM WHENEVER
THE CONDITIONS DEMAND CHANGE FOR THE PUBLIC GOOD.  UNDER INDIANA LAW
THE LEGISLATURE CAN NEITHER BARTER NOR GIVE AWAY ITS CONSTITUTIONAL
INVESTITURE OF POWER.  IT CAN MAKE NO CONTRACT IN CONFLICT WITH THIS
SOVEREIGN POWER.  THE CONSTRUCTION OF THE CONSTITUTION OF INDIANA BY
THE SUPREME COURT OF INDIANA MUST BE ACCEPTED AS CORRECT.  THAT COURT
HOLDS THAT INDIANA'S CONSTITUTION INVESTS INDIANA'S LEGISLATURE WITH
CONTINUING POWER TO CHANGE INDIANA'S EDUCATIONAL POLICIES.  IT HAS HERE
HELD THAT THE LEGISLATURE DID NOT ATTEMPT OR INTEND TO SURRENDER ITS
CONSTITUTIONAL POWER BY AUTHORIZING DEFINITE CONTRACTS WHICH WOULD
PREVENT THE FUTURE EXERCISE OF THIS CONTINUING, CONSTITUTIONAL POWER. 
IF THE CONSTITUTION AND STATUTES OF INDIANA, AS CONSTRUED BY ITS
SUPREME COURT, PROHIBIT THE LEGISLATURE FROM MAKING A CONTRACT WHICH IS
INCONSISTENT WITH A CONTINUING POWER TO LEGISLATE, THERE COULD HAVE
BEEN NO DEFINITE CONTRACTS TO BE IMPAIRED.  "THE CONTRACTS DESIGNED TO
BE PROTECTED BY THE (FEDERAL CONSTITUTION)  ...  ARE CONTRACTS BY WHICH
PERFECT RIGHTS, CERTAIN DEFINITE, FIXED PRIVATE RIGHTS OF PROPERTY, ARE
VESTED....  IT FOLLOWS, THEN, UPON PRINCIPLE, THAT, IN EVERY PERFECT OR
COMPETENT GOVERNMENT, THERE MUST EXIST A GENERAL POWER TO ENACT AND TO
REPEAL LAWS; AND TO CREATE, AND CHANGE OR DISCONTINUE, THE AGENTS
DESIGNATED FOR THE EXECUTION OF THOSE LAWS."  FN13 

MERITS OF A POLICY ESTABLISHING A PERMANENT TEACHER TENURE LAW ARE
NOT FOR CONSIDERATION HERE.  WE ARE DEALING WITH THE CONSTITUTIONAL
RIGHT OF THE PEOPLE OF A SOVEREIGN STATE TO CONTROL THEIR OWN PUBLIC
SCHOOL SYSTEM AS THEY DEEM BEST FOR THE PUBLIC WELFARE.  THIS COURT
SHOULD NEITHER MAKE IT IMPOSSIBLE FOR STATES TO EXPERIMENT IN THE
MATTER OF SECURITY OF TENURE FOR THEIR TEACHERS, NOR DEPRIVE THEM OF
THE RIGHT TO CHANGE A POLICY IF IT IS FOUND THAT IT HAS NOT OPERATED
SUCCESSFULLY. 

THE INDIANA CONSTITUTION GIVES THE STATE LEGISLATURE COMPLETE
AUTHORITY TO CONTROL THE PUBLIC SCHOOL SYSTEM.  THE STATE SUPREME COURT
DECLARES THAT UNDER THIS AUTHORITY THE LEGISLATURE CAN CHANGE SCHOOL
PLANS AS OFTEN AS IT BELIEVES A CHANGE WILL PROMOTE THE INTEREST OF
EDUCATION "AND FOR MISTAKES OR ABUSES IT IS ANSWERABLE TO THE PEOPLE,
BUT NOT TO THE COURT."  FN14  I BELIEVE THE PEOPLE OF INDIANA, IF THEY
PREFER, HAVE THE RIGHT UNDER THE FEDERAL CONSTITUTION TO ENTRUST THIS
IMPORTANT PUBLIC POLICY TO THEIR ELECTIVE REPRESENTATIVES RATHER THAN
TO THE COURTS.  DEMOCRACY PERMITS THE PEOPLE TO RULE.  I CANNOT AGREE
THAT THE CONSTITUTIONAL PROHIBITION AGAINST IMPAIRMENT OF CONTRACTS WAS
INTENDED TO - OR DOES - TRANSFER IN PART THE DETERMINATION OF THE
EDUCATIONAL POLICY OF INDIANA FROM THE LEGISLATURE OF THAT STATE TO
THIS COURT. 

INDIANA, IN HARMONY WITH OUR NATIONAL TRADITION, SEEKS TO WORK OUT A
SCHOOL SYSTEM, OFFERING EDUCATION TO ALL, AS "ESSENTIAL TO THE
PRESERVATION OF FREE GOVERNMENT."  THAT GREAT FUNCTION OF AN ADVANCING
SOCIETY HAS HERETOFORE BEEN EXERCISED BY THE STATES.  I FIND NO
CONSTITUTIONAL AUTHORITY FOR THIS COURT TO APPROPRIATE THAT POWER. 
INDIANA'S HIGHEST COURT HAS SAID THAT THE STATE DID NOT, AND HAS
STRONGLY INDICATED THAT THE LEGISLATURE COULD NOT, MAKE CONTRACTS WITH
A FEW CITIZENS, THAT WOULD TAKE AWAY FROM ALL THE CITIZENS, THE
CONTINUING POWER TO ALTER THE EDUCATIONAL POLICY FOR THE BEST INTERESTS
OF INDIANA SCHOOL CHILDREN.  THE MAJORITY DECISION NOW PLACES IN THIS
COURT A POWER WHICH HAS BEEN EXERCISED BY THE STATES SINCE THE ADOPTION
OF OUR CONSTITUTION.  THE PEOPLE HAVE NOT SURRENDERED THAT POWER TO
THIS COURT BY CONSTITUTIONAL AMENDMENT.    FOR THESE REASONS I CANNOT
AGREE TO THE MAJORITY DECISION AND I BELIEVE THE JUDGMENT OF THE
SUPREME COURT OF INDIANA SHOULD BE AFFIRMED. 

FN1  MOORE V. MISSISSIPPI, 21 WALL.  636, 639. 

FN2  CF. OGDEN V. SAUNDERS, 12 WHEAT.  213, 270.    FN3  ARMSTRONG V.
TREASURER OF ATHENS COUNTY, 16 PET. 281, 285. 

FN4  MOORE V. MISSISSIPPI, SUPRA. 

FN5  SILER V. LOUISVILLE & N.R. CO., 213 U.S. 175, 193. 

FN6  BURTON V. UNITED STATES, 196 U.S. 283, 295.  "IF THE EXPERIENCE
OF ONE HUNDRED AND FIFTY YEARS OF CONSTITUTIONAL INTERPRETATION HAS
TAUGHT ANY LESSON, IT IS THE UNWISDOM OF MAKING SOLEMN DECLARATIONS AS
TO THE MEANING OF THAT INSTRUMENT WHICH ARE UNNECESSARY TO DECISION. 
THEY CAN SERVE NO USEFUL PURPOSE AND THEIR ONLY EFFECT MAY BE TO
EMBARRASS THE COURT WHEN DECISION BECOMES NECESSARY.  O'DONOGHUE V.
UNITED STATES, 289 U.S. 516, 550; HUMPHREY'S EXECUTOR V. UNITED STATES,
295 U.S. 602, 626-627."  STONE, J., DISSENTING, WRIGHT V. UNITED
STATES, 302 U.S. 583, 604. 

FN7  BARBIER V. CONNOLLY, 113 U.S. 27, 31. 

FN8  THE NEW JERSEY ACT (AS QUOTED IN PHELPS V. BOARD OF EDUCATION,
300 U.S. 319, 320-321): 

TEACHERS, PRINCIPALS, SUPERVISING PRINCIPALS OF THE PUBLIC SCHOOLS IN
ANY SCHOOL DISTRICT OF THIS STATE SHALL BE DURING GOOD BEHAVIOR AND
EFFICIENCY, AFTER THE EXPIRATION OF A PERIOD OF EMPLOYMENT OF THREE
CONSECUTIVE YEARS IN THAT DISTRICT, UNLESS A SHORTER PERIOD IS FIXED BY
THE EMPLOYING BOARD;...  NO PRINCIPAL OR TEACHER SHALL BE DISMISSED OR
SUBJECTED TO REDUCTION OF SALARY IN SAID SCHOOL DISTRICT EXCEPT FOR
INEFFICIENCY, INCAPACITY, CONDUCT UNBECOMING A TEACHER OR OTHER JUST
CAUSE, AND AFTER A WRITTEN CHARGE OF THE CAUSE OR CAUSES SHALL HAVE
BEEN PREFERRED AGAINST HIM OR HER,  ...  AND AFTER THE CHARGE SHALL
HAVE BEEN EXAMINED INTO AND FOUND TRUE IN FACT BY SAID BOARD OF
EDUCATION, UPON REASONABLE NOTICE TO THE PERSON CHARGED, WHO MAY BE
REPRESENTED BY COUNSEL AT THE HEARING...." 

FN9  DODGE V. BOARD OF EDUCATION, 302 U.S. 74, 79. 

FN10  CHARLES RIVER BRIDGE V. WARREN BRIDGE, 11 PET. 420, 547. 

FN11  5.  N.E.(2D) 531, 532. 

FN12  STATE EX REL. CLARK V. HAWORTH, 122 IND. 462; 23 N.E. 946. 

FN13  BUTLER V. PENNSYLVANIA, 10 HOW.  402, 416. 

FN14  STATE EX REL. CLARK V. HAWORTH, SUPRA.
..END :




















FOSTER V. UNITED STATES, 303 U.S. 118 


NO. 189.  ARGUED JANUARY 10, 11, 1938.  - DECIDED JANUARY 31, 1938.  -
84 CT. CLS. 193 -  17 F.SUPP.  191, AFFIRMED. 


1.  FOR THE PURPOSE OF THE FEDERAL INCOME TAX, EARNINGS ACCUMULATED BY
A CORPORATION PRIOR TO MARCH 1, 1913 ARE DEEMED CAPITAL.  P. 121. 

2.  AMOUNTS DISTRIBUTED BY A CORPORATION IN PARTIAL LIQUIDATION,
I.E., IN CANCELLATION OR REDEMPTION OF PART OF ITS STOCK, ARE, UNDER
SUBSECTION (C) OF SEC. 115 OF THE REVENUE ACT OF 1928, CHARGEABLE TO
CAPITAL, WHICH, FOR THIS PURPOSE, INCLUDES MARCH 1, 1913 SURPLUS, AND
ARE NOT TO BE CONSIDERED A DISTRIBUTION OF EARNINGS OR PROFITS WITHIN
THE MEANING OF SUBSECTION (B) FOR THE PURPOSE OF DETERMINING THE
TAXABILITY OF SUBSEQUENT DISTRIBUTIONS.  PP. 121-122. 

FOSTER ET AL., EXECUTORS, V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 302 U.S. 667, TO REVIEW A JUDGMENT AGAINST THE
PETITIONERS IN A SUIT TO RECOVER AN ALLEGED OVERPAYMENT OF INCOME
TAXES.  IN THE TRIAL COURT, UPON THE DEATH OF THE ORIGINAL PLAINTIFF,
PETITIONERS, HER EXECUTORS, WERE SUBSTITUTED AS PARTIES PLAINTIFF. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

PETITIONERS' RIGHT (AS EXECUTORS) TO AN INCOME TAX REFUND DEPENDS
UPON WHETHER A DIVIDEND PAID BY THE FOSTER LUMBER COMPANY IN 1930 IS
TAX EXEMPT AS REPRESENTING CORPORATE EARNINGS ACCUMULATED BEFORE MARCH
1, 1913.  THIS DIVIDEND IS TAXABLE UNDER THE REVENUE ACT OF 1928  FN1
IF PAID FROM EARNINGS ACCUMULATED AFTER 1913.  THE COURT OF CLAIMS
FOUND THE DIVIDEND TAXABLE.  FN2 

PETITIONERS CONTEND THAT THE 1930 DIVIDEND WAS TRACEABLE TO THE
COMPANY'S PRE-1913 ACCUMULATIONS BECAUSE ITS POST-1913 EARNINGS HAD
BEEN EXHAUSTED BY A DISTRIBUTION IN 1929.  THE CIRCUMSTANCES OF THE
1929 DISTRIBUTION AND THE 1930 DIVIDEND WERE: 

THE FOSTER LUMBER COMPANY WAS A FAMILY CORPORATION, ORGANIZED IN 1896
WITH A CAPITAL STOCK OF $200,000.  MARCH 1, 1913, WHEN THE FEDERAL
INCOME TAX BECAME EFFECTIVE, THE INCREASED VALUE OF THE COMPANY'S
PROPERTY AND ITS UNDISTRIBUTED PROFITS WERE MORE THAN $3,725,000. 
PETITIONERS INSIST THAT A DISTRIBUTION OF $1,025,000 ON OCTOBER 10,
1929, COMPLETELY EXHAUSTED THE $330,578.98 TOTAL UNDISTRIBUTED PROFITS
WHICH HAD ACCUMULATED SINCE MARCH 1, 1913.  THIS 1929 DISTRIBUTION,
HOWEVER, WAS NOT A DIVIDEND.  IT WAS PAID BY THE COMPANY TO CANCEL AND
LIQUIDATE FIVE HUNDRED SHARES OF ITS OWN $100 PAR VALUE STOCK AND
REPRESENTED PAYMENT OF $2,050 PER SHARE, THE AGREED VALUE AS OF MARCH,
1913.  FEBRUARY 11, 1930, THE COMPANY DECLARED A $225,000 DIVIDEND AND
THIS REFUND IS SOUGHT FOR THE TAX PAID UPON A SHAREHOLDER'S PART OF
THIS DIVIDEND.  BETWEEN OCTOBER 10, 1929(THE DATE OF THE $1,025,000
STOCK PURCHASE) AND FEBRUARY 11, 1930(THE DATE OF THE $225,000
DIVIDEND) THE COMPANY'S EARNINGS AMOUNTED TO ONLY $82,758.17. 
PETITIONERS TAKE THE POSITION THAT ONLY $82,758.17 OF THIS $225,000
DIVIDEND OF 1930 CAN BE TAXED, URGING THAT THE BALANCE IS TAX EXEMPT
BECAUSE IT MUST BE TREATED AS REPRESENTING PRE-1913 ACCUMULATIONS. 

SUBSECTION (A) OF SEC. 115 OF THE REVENUE ACT OF 1928  FN3  DEFINES
"DIVIDEND," FOR INCOME TAX PURPOSES, AS "ANY DISTRIBUTION MADE BY A
CORPORATION TO ITS SHAREHOLDERS,  ...  OUT OF ITS EARNINGS OR PROFITS
ACCUMULATED AFTER FEBRUARY 28, 1913." 

SUBSECTION (B) OF THIS INCOME TAX LAW EXEMPTS CORPORATE EARNINGS AND
PROFITS ACCUMULATED BEFORE MARCH 1, 1913.  THIS SUBSECTION ALSO
PROVIDES THAT FOR INCOME TAX PURPOSES ALL DISTRIBUTIONS ARE PAID FROM
"THE MOST RECENTLY ACCUMULATED EARNINGS OR PROFITS."  THE OBVIOUS
PURPOSE OF THE PROVISION WAS TO PREVENT CORPORATIONS FROM ATTRIBUTING
DIVIDEND PAYMENTS TO PRE-1913 ACCUMULATIONS TO AVOID TAXES IMPOSED UPON
PROFITS EARNED AFTER MARCH, 1913.  PETITIONERS' CONTENTION IS THAT THE
$330,578.98 EARNED AFTER 1913, AS "THE MOST RECENTLY ACCUMULATED
EARNINGS OR PROFITS" WAS AUTOMATICALLY EXHAUSTED IN PART PAYMENT OF THE
$1,025,000 STOCK PURCHASE AND THUS ESCAPED TAXATION.  IN THIS MANNER,
PRE-1913 CORPORATE NON-TAXABLE EARNINGS COULD BE USED TO AVOID TAXES ON
CORPORATE PROFITS EARNED AFTER 1913. 

WE HAVE PREVIOUSLY SAID THAT SUBSECTIONS (A) AND (B), SUPRA,
CONSTRUED TOGETHER, DISCLOSE LEGISLATIVE PURPOSE THAT PRE-1913
ACCUMULATIONS SHALL NOT BE DISTRIBUTED "IN SUCH A FASHION AS TO PERMIT
PROFITS ACCUMULATED AFTER THAT DATE TO ESCAPE TAXATION."  FN4
PETITIONERS ASK THAT WE NOW CONSTRUE THESE PROVISIONS IN A WAY WHICH
WOULD FACILITATE THE ESCAPE OF SUCH PROFITS FROM TAXATION AND THEREBY
DEFEAT THE UNDOUBTED PURPOSE OF CONGRESS.  WE ARE URGED SO TO EXPAND
AND BROADEN AN EXEMPTION GRANTED BY CONGRESS AS A "CONCESSION TO THE
EQUITY OF STOCKHOLDERS"  FN5  THAT SUCH CONCESSION WOULD IN REALITY
SERVE TO NULLIFY AND DEFEAT THE TAX ON CORPORATE PROFITS EARNED AFTER
1913.  COURTS SHOULD CONSTRUE LAWS IN HARMONY WITH THE LEGISLATIVE
INTENT AND SEEK TO CARRY OUT LEGISLATIVE PURPOSE.  WITH RESPECT TO THE
TAX PROVISIONS UNDER CONSIDERATION, THERE IS NO UNCERTAINTY AS TO THE
LEGISLATIVE PURPOSE TO TAX POST-1913 CORPORATE EARNINGS.  WE MUST NOT
GIVE EFFECT TO ANY CONTRIVANCE WHICH WOULD DEFEAT A TAX CONGRESS
PLAINLY INTENDED TO IMPOSE.  THE USE OF BOOKKEEPING TERMS AND
ACCOUNTING FORMS AND DEVICES CANNOT BE PERMITTED TO DEVITALIZE VALID
TAX LAWS. 

THE TRANSACTION UNDER WHICH THIS COMPANY PAID $1,025,000 CASH FOR ITS
OWN STOCK OF $50,000 PAR VALUE DOES NOT FALL WITHIN SUBSECTIONS (A) AND
(B) OF SEC. 115.  ITS CHARACTER AND EFFECT ARE DETERMINED BY
SUBSECTIONS (C) AND (H) WHICH RELATE TO DISTRIBUTIONS IN COMPLETE OR
PARTIAL CORPORATE LIQUIDATION.  FN6 

SUBSECTION (C), GOVERNING THIS STOCK PURCHASE TRANSACTION, DIRECTS
THAT "...  IN THE CASE OF AMOUNTS DISTRIBUTED IN PARTIAL LIQUIDATION
...  THE PART OF SUCH DISTRIBUTION WHICH IS PROPERLY CHARGEABLE TO
CAPITAL ACCOUNT SHALL NOT BE CONSIDERED A DISTRIBUTION OF EARNINGS OR
PROFITS WITHIN THE MEANING OF SUBSECTION (B)  ...  FOR THE PURPOSE OF
DETERMINING THE TAXABILITY OF SUBSEQUENT DISTRIBUTIONS  ..."  FN7 

THIS PROVISION OF THE REVENUE ACT OF 1928 ALSO SUBSTANTIALLY OBTAINED
IN THE REVENUE ACT OF 1924.  FN8  PRIOR EVEN TO THE 1924 ACT, THIS
COURT HAD DETERMINED THAT, FOR INCOME TAX PURPOSES, EARNINGS OF A
CORPORATION ACCUMULATED PRIOR TO 1913 ARE TO BE CONSIDERED CAPITAL. 
FN9  IN THE LIGHT OF THESE DECISIONS, CONGRESS OBVIOUSLY INTENDED THAT
CORPORATE FUNDS DISTRIBUTED UNDER THE CIRCUMSTANCES HERE SHOWN SHOULD
BE "CHARGEABLE TO CAPITAL ACCOUNT" AND THAT STOCK PURCHASES OF THE TYPE
HERE INVOLVED SHOULD NOT BE CONSIDERED "FOR THE PURPOSE OF DETERMINING
THE TAXABILITY OF SUBSEQUENT DISTRIBUTIONS BY THE CORPORATION." 

ACCEPTANCE OF PETITIONERS' CONTENTION WOULD PERMIT CORPORATE PROFITS
ACCUMULATED SINCE MARCH, 1913 TO ESCAPE TAXATION, CONTRARY TO THE
PROVISIONS AND PURPOSE OF THE 1928 REVENUE ACT.  THE BOOKKEEPING
MINGLING OF CORPORATE EARNINGS AND PROFITS MADE BEFORE AND AFTER MARCH
1, 1913, DOES NOT ALTER THE ACT NOR CAN SUCH ACTION RENDER TAXABLE
PROFITS NON-TAXABLE.  IN THIS CASE, THE DISTRIBUTION OF $1,025,000 WAS
"PROPERLY CHARGEABLE TO CAPITAL ACCOUNT" AND WAS NOT PAID OUT OF
PROFITS EARNED SINCE MARCH 1, 1913. 

THE $1,025,000, PAID FOR THE COMPANY'S STOCK, CANNOT, THEREFORE, BE
CONSIDERED "FOR THE PURPOSE OF DETERMINING THE TAXABILITY OF SUBSEQUENT
DISTRIBUTIONS BY THE CORPORATION" AND THIS PURCHASE OF STOCK DID NOT
EXHAUST ANY PART OF THE $330,578.98 PROFITS ACCUMULATED SINCE 1913.  IT
FOLLOWS THAT THE TOTAL DIVIDEND OF 1930 RECEIVED BY PETITIONERS'
DECEDENT IS TAXABLE AND THE JUDGMENT OF THE COURT OF CLAIMS IS
AFFIRMED. 

FN1  C. 852, 45 STAT. 791. 

FN2 17 F.SUPP.  191; (SUPPLEMENTAL OPINION) 18 F.SUPP.  790. 

FN3  REVENUE ACT OF 1928, C. 852, 45 STAT. 791, 822. 

FN4  HELVERING V. CANFIELD, 291 U.S. 163, 168. 

FN5  LYNCH V. HORNBY, 247 U.S. 339, 346. 

FN6  CF. HELLMICH V. HELLMAN, 276 U.S. 233, 237. 

FN7  SUBSECTION (H)(REVENUE ACT OF 1928, SUPRA, AT 823):  "DEFINITION
OF PARTIAL LIQUIDATION.  - AS USED IN THIS SECTION THE TERM 'AMOUNTS
DISTRIBUTED IN PARTIAL LIQUIDATION' MEANS A DISTRIBUTION BY A
CORPORATION IN COMPLETE CANCELLATION OR REDEMPTION OF A PART OF ITS
STOCK, OR ONE OF A SERIES OF DISTRIBUTIONS IN COMPLETE CANCELLATION OR
REDEMPTION OF ALL OR A PORTION OF ITS STOCK." 

FN8  $S 201(C), C. 234, 43 STAT. 253, 255. 

FN9  "...  WE ARE BOUND TO CONSIDER ACCUMULATIONS THAT ACCRUED TO A
CORPORATION PRIOR TO JANUARY 1, 1913, AS  ... CAPITAL,  ..."  SOUTHERN
PACIFIC CO. V. LOWE, 247 U.S. 335(1917).  ALSO, SEE LYNCH V. TURRISH,
247 U.S. 221; DOYLE V. MITCHELL BROS. CO., 247 U.S. 179(1917); "...
WHAT IS CALLED THE STOCKHOLDER'S SHARE IN THE ACCUMULATED PROFIT OF THE
COMPANY IS CAPITAL,  ..."  EISNER V. MACOMBER, 252 U.S. 189,
219(1919).  CF.: "...  INCOME  ...  (RECEIVED)  ...  PRIOR TO THE
ADOPTION OF THE SIXTEENTH AMENDMENT  ...  HAD BECOME CAPITAL PRIOR TO
THE ADOPTION OF THE AMENDMENT  ..."  OLD COLONY R. CO. V. COMMISSIONER,
284 U.S. 557; AND "...  THE ACCUMULATED PROFITS, AS THEY STOOD ON MARCH
1, 1913, CONSTITUTED CAPITAL OF THE COMPANY  ..."  HELVERING V.
CANFIELD, 291 U.S. 163, 167. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :












WRIGHT V. UNITED STATES, 302 U.S. 583 


NO. 37.  ARGUED NOVEMBER 16, 1937.  - DECIDED JANUARY 17, 1938.  - 84
CT. CLS. 630, AFFIRMED. 


1.  IN THE LAST CLAUSE OF CONST., ART. I, SEC. 7, PAR. 2, WHICH
PROVIDES:  "IF ANY BILL SHALL NOT BE RETURNED BY THE PRESIDENT WITHIN
TEN DAYS (SUNDAYS EXCEPTED) AFTER IT SHALL HAVE BEEN PRESENTED TO HIM,
THE SAME SHALL BE A LAW, IN LIKE MANNER AS IF HE HAD SIGNED IT, UNLESS
THE CONGRESS BY THEIR ADJOURNMENT PREVENT ITS RETURN, IN WHICH CASE IT
SHALL NOT BE A LAW," THE WORDS "THE CONGRESS" REFER TO THE ENTIRE
LEGISLATIVE BODY CONSISTING OF BOTH HOUSES.  P. 587. 

2.  THE CONSTITUTION NEITHER DEFINES WHAT SHALL CONSTITUTE A RETURN
OF A BILL BY THE PRESIDENT, NOR DENIES THE USE OF APPROPRIATE AGENCIES
IN EFFECTING A RETURN.  P. 589. 

3.  A BILL, PASSED BY BOTH HOUSES OF CONGRESS, WAS PRESENTED TO THE
PRESIDENT OF THE UNITED STATES ON FRIDAY, APRIL 24.  ON MONDAY, MAY 4,
THE SENATE TOOK A RECESS UNTIL THURSDAY NOON, MAY 7.  THE HOUSE OF
REPRESENTATIVES REMAINED IN SESSION.  ON MAY 5, THE PRESIDENT RETURNED
THE BILL WITH A MESSAGE SETTING FORTH HIS OBJECTIONS ADDRESSED TO THE
SENATE, IN WHICH THE BILL HAD ORIGINATED; AND BILL AND MESSAGE WERE
DELIVERED ON THAT DAY TO THE SECRETARY OF THE SENATE.  WHEN THE SENATE
RECONVENED ON MAY 7, THE SECRETARY ADVISED THE SENATE OF THE RETURN OF
THE BILL AND THE DELIVERY OF THE PRESIDENT'S MESSAGE.  ON THE SAME DAY
THE PRESIDENT OF THE SENATE LAID BEFORE IT THE SECRETARY'S LETTER AND
THE MESSAGE.  THE MESSAGE WAS READ AND WITH THE BILL WAS REFERRED TO
THE SENATE COMMITTEE ON CLAIMS.  NO FURTHER ACTION WAS TAKEN.  HELD
THAT THE BILL DID NOT BECOME A LAW.  PP. 589, 598. 

4.  THE CONSTITUTIONAL PROVISIONS INVOLVED SHOULD NOT BE SO CONSTRUED
AS TO FRUSTRATE EITHER OF TWO FUNDAMENTAL PURPOSES:  (1) THAT THE
PRESIDENT SHALL HAVE SUITABLE OPPORTUNITY TO CONSIDER THE BILLS
PRESENTED TO HIM, AND (2) THAT THE CONGRESS SHALL HAVE SUITABLE
OPPORTUNITY TO CONSIDER HIS OBJECTIONS TO BILLS AND ON SUCH
CONSIDERATION TO PASS THEM OVER HIS VETO PROVIDED THERE ARE THE
REQUISITE VOTES.  P. 596. 

5.  POCKET VETO CASE, 279 U.S. 655, DISTINGUISHED.  GENERAL
EXPRESSIONS IN AN OPINION ARE TO BE TAKEN IN CONNECTION WITH THE CASE
IN WHICH THEY WERE USED.  P. 593. 

WRIGHT V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 301 U.S. 681, TO REVIEW AN ORDER OF THE COURT OF CLAIMS
(WITHOUT OPINION) OVERRULING AN APPLICATION FOR THE REOPENING AND
RETRIAL OF A CASE WHICH HAD PREVIOUSLY BEEN DISMISSED IN 60 CT. CLS.
519.  THE CLAIMANT RELIED UPON A NEW ENABLING PROVISION, PASSED BY
CONGRESS, DISAPPROVED OF BY THE PRESIDENT, WHICH THE GOVERNMENT CLAIMED
HAD NOT BECOME A LAW. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER SENATE BILL 713, 74TH CONGRESS, 1ST SESSION,
WHICH WAS PASSED BY BOTH HOUSES OF CONGRESS, BECAME A LAW. 

THE BILL WAS PRESENTED TO THE PRESIDENT OF THE UNITED STATES ON
FRIDAY, APRIL 24, 1936.  IT HAD ORIGINATED IN THE SENATE.  ON MONDAY,
MAY 4, 1936, THE SENATE TOOK A RECESS UNTIL NOON, THURSDAY, MAY 7,
1936.  THE HOUSE OF REPRESENTATIVES REMAINED IN SESSION.  ON MAY 5,
1936, THE PRESIDENT RETURNED THE BILL WITH A MESSAGE ADDRESSED TO THE
SENATE SETTING FORTH HIS OBJECTIONS.  THE BILL AND MESSAGE WERE
DELIVERED TO THE SECRETARY OF THE SENATE.  WHEN THE SENATE RECONVENED
ON MAY 7, 1936, THE SECRETARY ADVISED THE SENATE OF THE RETURN OF THE
BILL AND THE DELIVERY OF THE PRESIDENT'S MESSAGE.  FN1  ON THE SAME DAY
THE PRESIDENT OF THE SENATE LAID BEFORE IT THE SECRETARY'S LETTER AND
THE MESSAGE OF THE PRESIDENT OF THE UNITED STATES.  THE MESSAGE WAS
READ AND WITH THE BILL WAS REFERRED TO THE SENATE COMMITTEE ON CLAIMS. 
NO FURTHER ACTION WAS TAKEN. 

THE BILL GRANTED JURISDICTION TO THE COURT OF CLAIMS TO REHEAR AND
ADJUDICATE PETITIONER'S CLAIM AGAINST THE UNITED STATES.  ACCORDINGLY
ON SEPTEMBER 14, 1936, PETITIONER PRESENTED HIS PETITION TO THE COURT
OF CLAIMS.  THE GOVERNMENT OPPOSED THE PETITION UPON THE GROUND THAT
THE BILL HAD NEVER BECOME A LAW AND THE COURT OF CLAIMS DENIED THE
PETITION.  IN VIEW OF THE IMPORTANCE OF THE QUESTION CERTIORARI WAS
GRANTED.  301 U.S. 681. 

THE APPLICABLE PROVISIONS OF THE CONSTITUTION ARE FOUND IN ARTICLE I,
SEC. 7, PARAGRAPH 2, WHICH PROVIDES: 

"EVERY BILL WHICH SHALL HAVE PASSED THE HOUSE OF REPRESENTATIVES AND
THE SENATE, SHALL, BEFORE IT BECOME A LAW, BE PRESENTED TO THE
PRESIDENT OF THE UNITED STATES; IF HE APPROVE HE SHALL SIGN IT, BUT IF
NOT HE SHALL RETURN IT, WITH HIS OBJECTIONS TO THAT HOUSE IN WHICH IT
SHALL HAVE ORIGINATED, WHO SHALL ENTER THE OBJECTIONS AT LARGE ON THEIR
JOURNAL, AND PROCEED TO RECONSIDER IT.  IF AFTER SUCH RECONSIDERATION
TWO THIRDS OF THAT HOUSE SHALL AGREE TO PASS THE BILL, IT SHALL BE
SENT, TOGETHER WITH THE OBJECTIONS, TO THE OTHER HOUSE, BY WHICH IT
SHALL LIKEWISE BE RECONSIDERED, AND IF APPROVED BY TWO THIRDS OF THAT
HOUSE, IT SHALL BECOME A LAW.  BUT IN ALL SUCH CASES THE VOTES OF BOTH
HOUSES SHALL BE DETERMINED BY YEAS AND NAYS, AND THE NAMES OF THE
PERSONS VOTING FOR AND AGAINST THE BILL SHALL BE ENTERED ON THE JOURNAL
OF EACH HOUSE RESPECTIVELY.  IF ANY BILL SHALL NOT BE RETURNED BY THE
PRESIDENT WITHIN TEN DAYS (SUNDAYS EXCEPTED) AFTER IT SHALL HAVE BEEN
PRESENTED TO HIM, THE SAME SHALL BE A LAW, IN LIKE MANNER AS IF HE HAD
SIGNED IT, UNLESS THE CONGRESS BY THEIR ADJOURNMENT PREVENT ITS RETURN,
IN WHICH CASE IT SHALL NOT BE A LAW." 

1.  THE FIRST QUESTION IS WHETHER "THE CONGRESS BY THEIR ADJOURNMENT"
PREVENTED THE RETURN OF THE BILL BY THE PRESIDENT WITHIN THE PERIOD OF
TEN DAYS ALLOWED FOR THAT PURPOSE. 

"THE CONGRESS" DID NOT ADJOURN.  THE SENATE ALONE WAS IN RECESS.  THE
CONSTITUTION CREATES AND DEFINES "THE CONGRESS."  IT CONSISTS "OF A
SENATE AND HOUSE OF REPRESENTATIVES."  ART. I, SEC. 1.  THE SENATE IS
NOT "THE CONGRESS." 

THE CONTEXT OF THE CLAUSE ITSELF POINTS THE DISTINCTION.  IT SPEAKS
OF THE "HOUSE OF REPRESENTATIVES" AND OF THE "SENATE," RESPECTIVELY. 
IT SPEAKS OF THE RETURN OF THE BILL, IF THE PRESIDENT DOES NOT APPROVE
IT, "TO THAT HOUSE IN WHICH IT SHALL HAVE ORIGINATED"; OF
RECONSIDERATION BY "THAT HOUSE," AND, IN CASE TWO THIRDS OF "THAT
HOUSE" AGREE TO PASS THE BILL, OF SENDING IT TOGETHER WITH THE
PRESIDENT'S OBJECTIONS TO THE "OTHER HOUSE" AND, IF APPROVED BY TWO
THIRDS OF "THAT HOUSE," THE BILL IS TO BECOME A LAW.  PROVISION IS MADE
FOR THE TAKING OF THE VOTES OF "BOTH HOUSES" AND FOR THE RECORDING OF
THE NAMES OF THOSE VOTING FOR AND AGAINST THE BILL ON THE JOURNAL "OF
EACH HOUSE RESPECTIVELY." 

THEN, AFTER THIS PRECISE USE OF TERMS AND CAREFUL DIFFERENTIATION,
THE CONCLUDING CLAUSE DESCRIBES NOT AN ADJOURNMENT OF EITHER HOUSE AS A
SEPARATE BODY, OR AN ADJOURNMENT OF THE HOUSE IN WHICH THE BILL SHALL
HAVE ORIGINATED, BUT THE ADJOURNMENT OF "THE CONGRESS."  IT CANNOT BE
SUPPOSED THAT THE FRAMERS OF THE CONSTITUTION DID NOT USE THIS
EXPRESSION WITH DELIBERATION OR FAILED TO APPRECIATE ITS PLAIN
SIGNIFICANCE.  THE REFERENCE TO THE CONGRESS IS MANIFESTLY TO THE
ENTIRE LEGISLATIVE BODY CONSISTING OF BOTH HOUSES.  NOWHERE IN THE
CONSTITUTION ARE THE WORDS "THE CONGRESS" USED TO DESCRIBE A SINGLE
HOUSE. 

TO DISREGARD SUCH A DELIBERATE CHOICE OF WORDS AND THEIR NATURAL
MEANING WOULD BE A DEPARTURE FROM THE FIRST PRINCIPLE OF CONSTITUTIONAL
INTERPRETATION.  "IN EXPOUNDING THE CONSTITUTION OF THE UNITED STATES,"
SAID CHIEF JUSTICE TANEY IN HOLMES V. JENNISON, 14 PET. 540, 570, 571,
"EVERY WORD MUST HAVE ITS DUE FORCE, AND APPROPRIATE MEANING; FOR IT IS
EVIDENT FROM THE WHOLE INSTRUMENT, THAT NO WORD WAS UNNECESSARILY USED,
OR NEEDLESSLY ADDED.  THE MANY DISCUSSIONS WHICH HAVE TAKEN PLACE UPON
THE CONSTRUCTION OF THE CONSTITUTION, HAVE PROVED THE CORRECTNESS OF
THIS PROPOSITION; AND SHOWN THE HIGH TALENT, THE CAUTION, AND THE
FORESIGHT OF THE ILLUSTRIOUS MEN WHO FRAMED IT. EVERY WORD APPEARS TO
HAVE BEEN WEIGHED WITH THE UTMOST DELIBERATION, AND ITS FORCE AND
EFFECT TO HAVE BEEN FULLY UNDERSTOOD."  SEE, ALSO, MARTIN V. HUNTER'S
LESSEE, 1 WHEAT.  304, 333, 334; OGDEN V. SAUNDERS, 12 WHEAT.  213,
316; MYERS V. UNITED STATES, 272 U.S. 52, 151; WILLIAMS V. UNITED
STATES, 289 U.S. 553, 572, 573. 

THE ARGUMENT ADDRESSED TO THE WORD "THEIR" IN THE PHRASE "THE
CONGRESS BY THEIR ADJOURNMENT," IS FUTILE.  THE ARGUMENT IS THAT THE
USE OF THE PLURAL WOULD NOT BE UNUSUAL OR INAPPROPRIATE IF THE
REFERENCE WERE TO A SINGLE HOUSE.  THERE IS NO QUESTION THAT BOTH
SINGULAR AND PLURAL FORMS ARE USED IN THE CONSTITUTION WITH REFERENCE
TO EACH HOUSE SEPARATELY.  SEE ARTICLE I, SEC. 3, PARAGRAPHS 2, 4, 5,
6; ARTICLE I, SEC. 5, PARAGRAPHS 1, 2, 3.  THE PLURAL IS USED IN THE
PHRASE "THEIR JOURNAL" IN THE PARAGRAPH UNDER CONSIDERATION.  BUT THE
QUESTION IS NOT WHETHER THE USE OF THE PLURAL IS INAPPROPRIATE IN
REFERRING TO A SINGLE HOUSE OR ITS MEMBERS.  IT IS SUFFICIENT TO SAY
THAT THERE IS CERTAINLY NO INAPPROPRIATENESS IN THE USE OF THE PLURAL
IN RELATION TO "THE CONGRESS" AS COMPOSED OF BOTH HOUSES, AND THAT USE
IN NO WAY CHANGES THE SIGNIFICANCE OF THAT TERM. 

THE PHRASING OF THE CONCLUDING CLAUSE IS ENTIRELY FREE FROM AMBIGUITY
AND THERE IS NO OCCASION FOR CONSTRUCTION. 

2.  THE ARGUMENT TO THE CONTRARY RESTS UPON THE PREMISE THAT A BILL
CANNOT BE RETURNED BY THE PRESIDENT TO THE HOUSE IN WHICH IT ORIGINATED
WHEN THAT HOUSE DURING THE SESSION OF CONGRESS IS IN RECESS, AND HENCE
THAT THE CONCLUDING CLAUSE OF PARAGRAPH 2 OF SEC. 7 OF ARTICLE I,
REFERRING TO AN ADJOURNMENT BY THE CONGRESS, SHOULD BE REPHRASED BY
JUDICIAL CONSTRUCTION IN ORDER TO DEAL WITH THAT SITUATION.  WE THINK
THAT THE PREMISE IS FAULTY AND THE REPHRASING INADMISSIBLE. 

PARAGRAPH 4 OF SEC. 5 OF ARTICLE I PROVIDES: 

"NEITHER HOUSE, DURING THE SESSION OF CONGRESS, SHALL, WITHOUT THE
CONSENT OF THE OTHER, ADJOURN FOR MORE THAN THREE DAYS, NOR TO ANY
OTHER PLACE THAN THAT IN WHICH THE TWO HOUSES SHALL BE SITTING." 

IT WILL BE OBSERVED THAT THIS PROVISION IS FOR A SHORT RECESS BY ONE
HOUSE WITHOUT THE CONSENT OF THE OTHER "DURING THE SESSION OF
CONGRESS."  PLAINLY THE TAKING OF SUCH A RECESS IS NOT AN ADJOURNMENT
BY THE CONGRESS.  THE "SESSION OF CONGRESS" CONTINUES. 

HERE, THE RECESS OF THE SENATE FROM MAY 4TH TO MAY 7TH WAS DURING THE
SESSION OF CONGRESS AND UNDER THAT PROVISION.  IN RETURNING THE BILL TO
THE SENATE BY DELIVERY TO ITS SECRETARY DURING THE RECESS THERE WAS NO
VIOLATION OF ANY EXPRESS REQUIREMENT OF THE CONSTITUTION.  THE
CONSTITUTION DOES NOT DEFINE WHAT SHALL CONSTITUTE A RETURN OF A BILL
OR DENY THE USE OF APPROPRIATE AGENCIES IN EFFECTING THE RETURN. 

NOR WAS THERE ANY PRACTICAL DIFFICULTY IN MAKING THE RETURN OF THE
BILL DURING THE RECESS.  THE ORGANIZATION OF THE SENATE CONTINUED AND
WAS INTACT.  THE SECRETARY OF THE SENATE WAS FUNCTIONING AND WAS ABLE
TO RECEIVE, AND DID RECEIVE, THE BILL.  UNDER THE CONSTITUTIONAL
PROVISION THE SENATE WAS REQUIRED TO RECONVENE IN NOT MORE THAN THREE
DAYS AND THUS WOULD BE ABLE TO ACT WITH REASONABLE PROMPTITUDE UPON THE
PRESIDENT'S OBJECTIONS.  THERE IS NO GREATER DIFFICULTY IN RETURNING A
BILL TO ONE OF THE TWO HOUSES WHEN IT IS IN RECESS DURING THE SESSION
OF CONGRESS THAN IN PRESENTING A BILL TO THE PRESIDENT BY SENDING IT TO
THE WHITE HOUSE IN HIS TEMPORARY ABSENCE.  SUCH A PRESENTATION IS
FAMILIAR PRACTICE.  THE BILL IS SENT BY A MESSENGER AND IS RECEIVED BY
THE PRESIDENT.  IT IS RETURNED BY A MESSENGER, AND WHY MAY IT NOT BE
RECEIVED BY THE ACCREDITED AGENT OF THE LEGISLATIVE BODY?  TO SAY THAT
THE PRESIDENT CANNOT RETURN A BILL WHEN THE HOUSE IN WHICH IT
ORIGINATED IS IN RECESS DURING THE SESSION OF CONGRESS, AND THUS AFFORD
AN OPPORTUNITY FOR THE PASSING OF THE BILL OVER THE PRESIDENT'S
OBJECTIONS, IS TO IGNORE THE PLAINEST PRACTICAL CONSIDERATIONS AND BY
IMPLYING A REQUIREMENT OF AN ARTIFICIAL FORMALITY TO ERECT A BARRIER TO
THE EXERCISE OF A CONSTITUTIONAL RIGHT. 

THESE PRACTICAL CONSIDERATIONS WERE WELL PUT BY MR. HATTON W. SUMNERS
IN HIS ARGUMENT AS AMICUS CURIAE ON BEHALF OF THE COMMITTEE ON THE
JUDICIARY OF THE HOUSE OF REPRESENTATIVES IN THE POCKET VETO CASE, 279
U.S. 655.  HE SAID: 

"THERE IS NO LANGUAGE IN THE PROVISION GOVERNING THIS PASSING OF
BILLS BETWEEN THE PRESIDENT AND CONGRESS, OR ANY RECOGNIZED RULE OF
CONSTRUCTION WHICH, WHILE PERMITTING THE CONGRESS IN THE FIRST INSTANCE
TO SEND BILLS TO THE PRESIDENT BY A MESSENGER, AS IS DONE WITHOUT
QUESTION, AND THE PRESIDENT TO RECEIVE SUCH BILLS THROUGH AN
APPROPRIATE AGENT EVEN WHEN HIMSELF ABSENT FROM HIS OFFICE; AND THE
PRESIDENT, THOUGH HE MAY BE AWAY FROM THE CAPITAL, AT THE TIME
RETURNING THE BILL BY MESSENGER TO THE CONGRESS, THOUGH THE
CONSTITUTION DECLARES 'HE,' THE PRESIDENT, SHALL RETURN IT, WHICH WOULD
PREVENT THE HOUSE OF ORIGIN FROM RECEIVING THESE SAME BILLS THROUGH A
PROPER AGENT IF THAT HOUSE WERE ENGAGED IN OTHER BUSINESS OR
TEMPORARILY ABSENT FROM THEIR CHAMBERS.  IT IS AGAINST ALL REASON AND
EVERY RECOGNIZED RULE OF CONSTRUCTION, WHEN THE AVOIDANCE OF
UNNECESSARY DELAY IS SO CLEARLY MANIFEST IN THE PROVISION SOUGHT TO BE
CONSTRUED, THAT A CONSTRUCTION SHOULD BE SUPERIMPOSED WHICH WOULD MAKE
FOR DELAY REGARDLESS OF EVERY DESIRE AND OF EVERY EFFORT OF THE
PRESIDENT AND OF THE CONGRESS IN THE SITUATION INDICATED." 

AND REFERRING TO THE PROVISION OF THE CONSTITUTION ABOVE QUOTED AS TO
ADJOURNMENTS BY EITHER HOUSE FOR NOT MORE THAN THREE DAYS DURING THE
SESSION OF CONGRESS, HE SAID: 

"IN SUCH A SITUATION WHAT IS TO OCCUR?  IS THE BILL TO BECOME A LAW
DESPITE THE OBJECTIONS OF THE PRESIDENT?  THE CONGRESS HAS NOT
ADJOURNED, AND YET THE PRESIDENT CANNOT MAKE RETURN OF THE BILL TO THE
HOUSE OF ITS ORIGIN IN SESSION BECAUSE IT IS NOT IN SESSION.  IS THE
BILL TO DIE WITH THE CONGRESS IN EXISTENCE, POSSIBLY THE HOUSE OF
ORIGIN ONLY HAVING ADJOURNED EARLIER THAN USUAL ON THE LAST DAY
PERMITTED FOR THE RETURN OF THE BILL?  IS THERE NO RATIONAL
CONSTRUCTION OF THE CONSTITUTION POSSIBLE WHICH WILL MAKE EFFECTIVE ALL
THE SAFEGUARDS WITH REGARD TO LEGISLATION ESTABLISHED IN THE
CONSTITUTION, AND YET MAKE OPERATIVE UNDER EVERY CIRCUMSTANCE, THE
GENERAL PLAN SET UP BY THE CONSTITUTION?" 

AND, AGAIN, WITH RESPECT TO THE AGENCIES OF THE HOUSES OF CONGRESS,
MR. SUMNERS OBSERVED THAT "THE HOUSES OF CONGRESS HAVE OFFICERS AND
AGENTS OF GREAT POWER AND RESPONSIBILITY WHO ACT IN THEIR STEAD, AND
WHO ARE CONSTANTLY IN THEIR PLACES WHEN THE HOUSES ARE IN SESSION, AND
WHEN THEY ARE NOT IN SESSION."  HE FOUND "NOTHING IN THE CONSTITUTION
WHICH DENIES THE RIGHT TO THE USE OF THESE AGENTS IN EFFECTING THE
RETURN OF OBJECTED-TO BILLS."  HE ADDED THAT "A RULE OF CONSTRUCTION OR
OF OFFICIAL ACTION WHICH WOULD REQUIRE IN EVERY INSTANCE THE PERSONS
WHO CONSTITUTE THE HOUSES OF CONGRESS TO BE IN FORMAL SESSION IN ORDER
TO RECEIVE BILLS FROM THE PRESIDENT WOULD ALSO REQUIRE THE PERSON WHO
IS PRESIDENT PERSONALLY TO RETURN SUCH BILLS.... 

"THE RIGHT OF CONSTRUCTIVE DELIVERY IS NECESSARY NOT ONLY TO
FACILITATE LEGISLATIVE PROCEDURE, PREVENT DELAY, AND TO HOLD THE
PRESIDENT'S POWERS WITHIN THE LIMITS IMPOSED BY THE CONSTITUTION, BUT
IT IS ALSO NECESSARY IN ORDER TO HOLD THE CONGRESS WITHIN PROPER BOUNDS
BY PREVENTING BILLS TO WHICH THE PRESIDENT MAY OBJECT FROM BECOMING LAW
WITHOUT RECONSIDERATION BY THE CONGRESS. 

"THE ADJOURNMENT OF A HOUSE FOR NOT MORE THAN THREE DAYS, WITHOUT THE
CONSENT OF THE OTHER HOUSE, IS NOT AN ADJOURNMENT OF CONGRESS.    "IF
THE SENATE SHOULD BE IN EXECUTIVE SESSION, ON A MATTER OF THE HIGHEST
PUBLIC IMPORTANCE, REFUSING TO BE INTERRUPTED, ON THE LAST DAY OF THE
PERIOD IN WHICH RETURN MAY BE MADE, THAT WOULD NOT EVEN BE AN
ADJOURNMENT OF ONE HOUSE OF THE CONGRESS; AND YET RETURN COULD NOT BE
MADE IF CONSTRUCTIVE DELIVERY IS NOT PERMITTED. 

"IT COULD NOT BE HELD THAT CONGRESS WAS ADJOURNED WHEN THE SENATE WAS
IN EXECUTIVE SESSION PERFORMING ITS CONSTITUTIONAL DUTY, AND THE OTHER
HOUSE IN ACTUAL SESSION.  THE SENSIBLE THING TO DO IN SUCH A CASE,
WOULD BE FOR THE MESSENGER OF THE PRESIDENT, FINDING HIMSELF UNABLE TO
MAKE DELIVERY TO THE SENATE, TO MAKE THE DELIVERY TO THE SECRETARY OF
THE SENATE.  THERE IS NOTHING IN THE CONSTITUTION TO PROHIBIT THAT
BEING DONE." 

THE ABSENCE OF ANY PRACTICAL OBSTACLE TO THE RETURN OF A BILL WHEN A
HOUSE IS IN TEMPORARY RECESS DURING THE SESSION OF THE CONGRESS IS
ILLUSTRATED BY WHAT WAS DONE IN THIS INSTANCE.  THE SENATE WAS IN
RECESS FROM MAY 4TH TO NOON OF MAY 7TH.  THE PRESIDENT'S TIME FOR
CONSIDERATION EXPIRED ON MAY 6TH.  HE DELIVERED THE BILL WITH HIS
OBJECTIONS TO THE SECRETARY OF THE SENATE ON MAY 5TH.  THE SECRETARY
PRESENTED THE BILL WITH THE PRESIDENT'S OBJECTIONS TO THE PRESIDENT OF
THE SENATE ON MAY 7TH AND ON THAT DAY THE BILL AND THE OBJECTIONS WERE
LAID BEFORE THE SENATE AND WERE REFERRED TO THE APPROPRIATE COMMITTEE. 
THE FACT THAT MR. SUMNERS' CONTENTION IN THE POCKET VETO CASE WAS
UNAVAILING WITH RESPECT TO THE EFFECT OF AN ADJOURNMENT OF THE CONGRESS
AT THE CLOSE OF ITS FIRST REGULAR SESSION, IN NO WAY DETRACTS FROM THE
PERTINENCE AND COGENCY OF THESE OBSERVATIONS AS ADDRESSED TO THE
SITUATION WHICH IS NOW PRESENTED. 

3.  THE CHIEF, IF NOT THE SOLE, RELIANCE FOR THE ARGUMENT THAT THE
BILL COULD NOT BE RETURNED BY THE PRESIDENT DURING THE SENATE'S RECESS
IS OUR DECISION IN THE POCKET VETO CASE, SUPRA.  WE DO NOT REGARD THAT
DECISION AS APPLICABLE FOR TWO REASONS:  (1) THE PRESENT QUESTION WAS
NOT INVOLVED, AND (2) THE REASONING OF THE DECISION IS INAPPOSITE TO
THE CIRCUMSTANCES OF THIS CASE. 

IN THE POCKET VETO CASE, THE CONGRESS HAD ADJOURNED.  THE QUESTION
WAS WHETHER THE CONCLUDING CLAUSE OF PARAGRAPH 2 OF SEC. 7 OF ARTICLE I
WAS LIMITED TO A FINAL ADJOURNMENT OF THE CONGRESS OR EMBRACED AN
ADJOURNMENT OF THE CONGRESS AT THE CLOSE OF THE FIRST REGULAR SESSION. 
THE COURT HELD THAT THE CLAUSE WAS NOT SO LIMITED AND APPLIED TO THE
LATTER.  IN INTERPRETING THE WORD "ADJOURNMENT," AND IN REFERRING TO
OTHER PROVISIONS OF THE CONSTITUTION USING THE WORD "ADJOURN," THE
COURT WAS STILL ADDRESSING ITSELF TO A CASE WHERE THERE HAD BEEN AN
ADJOURNMENT BY THE CONGRESS.  THE COURT DID NOT DECIDE, AND THERE WAS
NO OCCASION FOR RULING, THAT THE CLAUSE APPLIES WHERE THE CONGRESS HAS
NOT ADJOURNED AND A TEMPORARY RECESS HAS BEEN TAKEN BY ONE HOUSE DURING
THE SESSION OF CONGRESS.  ANY OBSERVATIONS WHICH COULD BE REGARDED AS
HAVING A BEARING UPON THE QUESTION NOW BEFORE US WOULD BE TAKEN OUT OF
THEIR PROPER RELATION.  THE OFT-REPEATED ADMONITION OF CHIEF JUSTICE
MARSHALL "THAT GENERAL EXPRESSIONS, IN EVERY OPINION, ARE TO BE TAKEN
IN CONNECTION WITH THE CASE IN WHICH THOSE EXPRESSIONS ARE USED," AND
THAT IF THEY GO "BEYOND THE CASE, THEY MAY BE RESPECTED, BUT OUGHT NOT
TO CONTROL THE JUDGMENT IN A SUBSEQUENT SUIT WHEN THE VERY POINT IS
PRESENTED FOR DECISION," HAS SPECIAL FORCE IN THIS INSTANCE.  COHENS V.
VIRGINIA, 6 WHEAT.  264, 399. 

IN THE POCKET VETO CASE THE COURT EXPRESSED THE VIEW THAT THE HOUSE
TO WHICH THE BILL IS TO BE RETURNED "IS THE HOUSE IN SESSION," AND THAT
NO RETURN CAN BE MADE TO THE HOUSE WHEN IT IS NOT IN SESSION AS A
COLLECTIVE BODY AND ITS MEMBERS ARE DISPERSED.  BUT THAT EXPRESSION
SHOULD NOT BE CONSTRUED SO NARROWLY AS TO DEMAND THAT THE PRESIDENT
MUST SELECT A PRECISE MOMENT WHEN THE HOUSE IS WITHIN THE WALLS OF ITS
CHAMBERS AND THAT A RETURN IS ABSOLUTELY IMPOSSIBLE DURING A RECESS
HOWEVER TEMPORARY.  SUCH A CONCLUSION, AS WE SHALL PRESENTLY ENDEAVOR
TO SHOW, WOULD FRUSTRATE THE FUNDAMENTAL PURPOSES OF THE CONSTITUTIONAL
PROVISION AS TO ACTION UPON BILLS.  THE COURT IN THE POCKET VETO CASE
WAS IMPRESSED WITH THE IMPROPRIETY OF A DELIVERY OF THE BILL BY THE
PRESIDENT DURING A PERIOD OF ADJOURNMENT "TO SOME INDIVIDUAL OFFICER OR
AGENT NOT AUTHORIZED TO MAKE ANY LEGISLATIVE RECORD OF ITS DELIVERY,
WHO SHOULD HOLD IT IN HIS OWN HANDS FOR DAYS, WEEKS OR PERHAPS MONTHS,
- NOT ONLY LEAVING OPEN POSSIBLE QUESTIONS AS TO THE DATE ON WHICH IT
HAD BEEN DELIVERED TO HIM, OR WHETHER IT HAD IN FACT BEEN DELIVERED TO
HIM AT ALL, BUT KEEPING THE BILL IN THE MEANTIME IN A STATE OF
SUSPENDED ANIMATION UNTIL THE HOUSE RESUMES ITS SITTINGS, WITH NO
CERTAIN KNOWLEDGE ON THE PART OF THE PUBLIC AS TO WHETHER IT HAD OR HAD
NOT BEEN SEASONABLY DELIVERED, AND NECESSARILY CAUSING DELAY IN ITS
RECONSIDERATION WHICH THE CONSTITUTION EVIDENTLY INTENDED TO AVOID." 
"IN SHORT," SAID THE COURT, "IT WAS PLAINLY THE OBJECT OF THE
CONSTITUTIONAL PROVISION THAT THERE SHOULD BE A TIMELY RETURN OF THE
BILL, WHICH SHOULD NOT ONLY BE A MATTER OF OFFICIAL RECORD DEFINITELY
SHOWN BY THE JOURNAL OF THE HOUSE ITSELF, GIVING PUBLIC, CERTAIN AND
PROMPT KNOWLEDGE AS TO THE STATUS OF THE BILL, BUT SHOULD ENABLE
CONGRESS TO PROCEED IMMEDIATELY WITH ITS RECONSIDERATION; AND THAT THE
RETURN OF THE BILL SHOULD BE AN ACTUAL AND PUBLIC RETURN TO THE HOUSE
ITSELF, NOT A FICTITIOUS RETURN BY A DELIVERY OF THE BILL TO SOME
INDIVIDUAL WHICH COULD BE GIVEN A RETROACTIVE EFFECT AT A LATER DATE
WHEN THE TIME FOR THE RETURN TO THE HOUSE HAD EXPIRED."  ID., PP. 684,
685. 

THESE STATEMENTS SHOW CLEARLY THE SORT OF DANGERS WHICH THE COURT
ENVISAGED.  HOWEVER REAL THESE DANGERS MAY BE WHEN CONGRESS HAS
ADJOURNED AND THE MEMBERS OF ITS HOUSES HAVE DISPERSED AT THE END OF A
SESSION - THE SITUATION WITH WHICH THE COURT WAS DEALING - THEY APPEAR
TO BE ILLUSORY WHEN THERE IS A MERE TEMPORARY RECESS.  EACH HOUSE FOR
ITS CONVENIENCE, AND DURING ITS SESSION AND THE SESSION OF CONGRESS,
MAY TAKE, AND FREQUENTLY DOES TAKE, A BRIEF RECESS LIMITED, AS WE HAVE
SEEN, IN THE ABSENCE OF THE CONSENT OF THE OTHER HOUSE, TO A PERIOD OF
THREE DAYS.  IN SUCH CASE THERE IS NO WITHHOLDING OF THE BILL FROM
APPROPRIATE LEGISLATIVE RECORD FOR WEEKS OR PERHAPS MONTHS, NO KEEPING
OF THE BILL IN A STATE OF SUSPENDED ANIMATION WITH NO CERTAIN KNOWLEDGE
ON THE PART OF THE PUBLIC WHETHER IT WAS SEASONABLY DELIVERED, NO
CAUSING OF ANY UNDUE DELAY IN ITS RECONSIDERATION.  WHEN THERE IS
NOTHING BUT SUCH A TEMPORARY RECESS THE ORGANIZATION OF THE HOUSE AND
ITS APPROPRIATE OFFICERS CONTINUE TO FUNCTION WITHOUT INTERRUPTION, THE
BILL IS PROPERLY SAFEGUARDED FOR A VERY LIMITED TIME AND IS PROMPTLY
REPORTED AND MAY BE RECONSIDERED IMMEDIATELY AFTER THE SHORT RECESS IS
OVER.  THE PROSPECT THAT IN SUCH A CASE THE PUBLIC MAY NOT BE PROMPTLY
AND PROPERLY INFORMED OF THE RETURN OF THE BILL WITH THE PRESIDENT'S
OBJECTIONS, OR THAT THE BILL WILL NOT BE PROPERLY SAFEGUARDED OR DULY
RECORDED UPON THE JOURNAL OF THE HOUSE, OR THAT IT WILL NOT BE SUBJECT
TO REASONABLY PROMPT ACTION BY THE HOUSE, IS WE THINK WHOLLY
CHIMERICAL.  IF WE REGARD THE MANIFEST REALITIES OF THE SITUATION, WE
CANNOT FAIL TO SEE THAT A BRIEF RECESS BY ONE HOUSE, SUCH AS IS
PERMITTED BY THE CONSTITUTION WITHOUT THE CONSENT OF THE OTHER HOUSE,
DURING THE SESSION OF CONGRESS, DOES NOT CONSTITUTE SUCH AN
INTERRUPTION OF THE SESSION OF THE HOUSE AS TO GIVE RISE TO THE DANGERS
WHICH, AS THE COURT APPREHENDED, MIGHT DEVELOP AFTER THE CONGRESS HAS
ADJOURNED. 

4.  THE CONSTITUTIONAL PROVISIONS HAVE TWO FUNDAMENTAL PURPOSES; (1)
THAT THE PRESIDENT SHALL HAVE SUITABLE OPPORTUNITY TO CONSIDER THE
BILLS PRESENTED TO HIM, AND (2) THAT THE CONGRESS SHALL HAVE SUITABLE
OPPORTUNITY TO CONSIDER HIS OBJECTIONS TO BILLS AND ON SUCH
CONSIDERATION TO PASS THEM OVER HIS VETO PROVIDED THERE ARE THE
REQUISITE VOTES.  EDWARDS V. UNITED STATES, 286 U.S. 482, 486.  WE
SHOULD NOT ADOPT A CONSTRUCTION WHICH WOULD FRUSTRATE EITHER OF THESE
PURPOSES. 

AS TO THE PRESIDENT'S OPPORTUNITY FOR CONSIDERATION, WE HAVE HELD
THAT HE MAY STILL APPROVE BILLS AND THAT THEY WILL BECOME LAWS, IF HE
ACTS WITHIN THE TIME ALLOTTED FOR THAT PURPOSE, ALTHOUGH CONGRESS
MEANWHILE HAS ADJOURNED.  LA ABRA SILVER MINING CO. V. UNITED STATES,
175 U.S. 423; EDWARDS V. UNITED STATES, SUPRA.  IT IS TO SAFEGUARD THE
PRESIDENT'S OPPORTUNITY THAT PARAGRAPH 2 OF SEC. 7 OF ARTICLE I
PROVIDES THAT BILLS WHICH HE DOES NOT APPROVE SHALL NOT BECOME LAWS IF
THE ADJOURNMENT OF THE CONGRESS PREVENTS THEIR RETURN.  EDWARDS V.
UNITED STATES, SUPRA. 

WHERE THE PRESIDENT DOES NOT APPROVE A BILL, THE PLAN OF THE
CONSTITUTION IS TO GIVE TO THE CONGRESS THE OPPORTUNITY TO CONSIDER HIS
OBJECTIONS AND TO PASS THE BILL DESPITE HIS DISAPPROVAL.  IT IS FOR
THIS PURPOSE THAT THE TIME LIMIT FOR RETURN IS FIXED.  THIS OPPORTUNITY
IS AS IMPORTANT AS THAT OF THE PRESIDENT.  BUT IF THE RETURN OF A BILL
IS IMPOSSIBLE DURING A TEMPORARY RECESS OF A HOUSE WHILE CONGRESS IS IN
SESSION, EITHER THE PRESIDENT MAY BE OBLIGED TO CUT SHORT THE TIME FOR
HIS CONSIDERATION SO AS TO BE SURE TO GET HIS OBJECTIONS BEFORE THE
HOUSE WHILE IT IS WITHIN THE WALLS OF ITS CHAMBERS, OR, IF THE
PRESIDENT TAKES THE ALLOTTED TIME AND ATTEMPTS TO RETURN THE BILL
DURING THE RECESS, HIS OBJECTIONS WILL EITHER BE UNAVAILING OR THE
CONGRESS WILL BE DENIED OPPORTUNITY TO PASS UPON THEM.  IF, AS WE
THINK, THE CONCLUDING WORDS OF PARAGRAPH 2 OF SEC. 7 ARE INAPPLICABLE
THEN, AS CONGRESS HAS NOT ADJOURNED, THE BILL, IF NOT DEEMED TO HAVE
BEEN RETURNED, WILL BECOME A LAW DESPITE THE PRESIDENT'S DISAPPROVAL. 
OR, IF THAT CLAUSE WERE DEEMED APPLICABLE AND THE RETURN OF THE BILL BE
CONSIDERED TO HAVE BEEN PREVENTED BY THE RECESS, THE BILL WOULD NOT
BECOME A LAW AND CONGRESS, ALTHOUGH IN SESSION, WOULD NOT BE ABLE TO
PASS THE BILL OVER THE PRESIDENT'S OBJECTIONS. 

THE EXTREMELY TECHNICAL CHARACTER OF THE ARGUMENT WHICH WOULD MAKE
IMPOSSIBLE THE RETURN OF A BILL BECAUSE A HOUSE HAS TAKEN A TEMPORARY
RECESS IS MANIFEST.  SUPPOSE THE PRESIDENT, WHO IS CLEARLY ENTITLED TO
HIS TEN DAYS FOR CONSIDERATION, SENDS THE BILL TO THE HOUSE IN WHICH IT
ORIGINATED WITH HIS OBJECTIONS ON THE AFTERNOON OF THE TENTH DAY, BUT
THAT HOUSE HAS ADJOURNED AT NOON ON THAT DAY UNTIL THE FOLLOWING
MORNING.  THEN, ON THE ARGUMENT NOW ADVANCED AS TO THE CONSTRUCTION OF
THE CONCLUDING CLAUSE OF PARAGRAPH 2 OF SEC. 7, THE BILL WOULD NOT
BECOME A LAW AND THE OBJECTIONS OF THE PRESIDENT WOULD OPERATE
PRACTICALLY AS AN ABSOLUTE VETO ALTHOUGH THE CONGRESS WAS IN SESSION
AND READY TO CONSIDER HIS OBJECTIONS.  OR IF THAT RESULT DOES NOT
FOLLOW, IN THE VIEW THAT THE CLAUSE DOES NOT APPLY BECAUSE CONGRESS HAS
NOT ADJOURNED, THEN, IF THE BILL IS NOT REGARDED AS RETURNED, IT
BECOMES A LAW ALTHOUGH THE PRESIDENT HAS SHOWN HIS DISAPPROVAL WITHIN
THE TEN DAYS.  THESE DIFFICULTIES DISAPPEAR IF WE DISPENSE WITH WHOLLY
UNNECESSARY TECHNICALITIES AS TO THE METHOD OF RETURN AND GIVE EFFECT
TO REALITIES. 

WE AGREE WITH THE GOVERNMENT THAT THE PRECEDENTS OF EXECUTIVE ACTION
WHICH HAVE BEEN CITED ARE NOT PERSUASIVE.  THE QUESTION NOW RAISED HAS
NOT BEEN THE SUBJECT OF JUDICIAL DECISION AND MUST BE RESOLVED NOT BY
PAST UNCERTAINTIES, ASSUMPTIONS OR ARGUMENTS, BUT BY THE APPLICATION OF
THE CONTROLLING PRINCIPLES OF CONSTITUTIONAL INTERPRETATION. 

WE ARE NOT IMPRESSED BY THE ARGUMENT THAT WHILE A RECESS OF ONE HOUSE
IS LIMITED TO THREE DAYS WITHOUT THE CONSENT OF THE OTHER HOUSE, CASES
MAY ARISE IN WHICH THE OTHER HOUSE CONSENTS TO AN ADJOURNMENT AND A
LONG PERIOD OF ADJOURNMENT MAY RESULT.  WE HAVE NO SUCH CASE BEFORE US
AND WE ARE NOT CALLED UPON TO CONJECTURE AS TO THE NATURE OF THE ACTION
WHICH MIGHT BE TAKEN BY THE CONGRESS IN SUCH A CASE OR WHAT WOULD BE
ITS EFFECT. 

WE HOLD THAT WHERE THE CONGRESS HAS NOT ADJOURNED AND THE HOUSE IN
WHICH THE BILL ORIGINATED IS IN RECESS FOR NOT MORE THAN THREE DAYS
UNDER THE CONSTITUTIONAL PERMISSION WHILE CONGRESS IS IN SESSION, THE
BILL DOES NOT BECOME A LAW IF THE PRESIDENT HAS DELIVERED THE BILL WITH
HIS OBJECTIONS TO THE APPROPRIATE OFFICER OF THAT HOUSE WITHIN THE
PRESCRIBED TEN DAYS AND THE CONGRESS DOES NOT PASS THE BILL OVER HIS
OBJECTIONS BY THE REQUISITE VOTES.  IN THIS INSTANCE THE BILL WAS
PROPERLY RETURNED BY THE PRESIDENT, IT WAS OPEN TO RECONSIDERATION IN
CONGRESS, AND IT DID NOT BECOME A LAW. 

THE JUDGMENT IS AFFIRMED. 

FN1  THIS COMMUNICATION WAS AS FOLLOWS:

                        "UNITED STATES SENATE,

                       WASHINGTON, MAY 7, 1936. 

HON. JOHN N. GARNER,

                       PRESIDENT OF THE SENATE. 

MY DEAR MR. PRESIDENT: 

ON FRIDAY, APRIL 24, 1936, THE COMMITTEE ON ENROLLED BILLS OF THE
SENATE PRESENTED TO THE PRESIDENT OF THE UNITED STATES THE ENROLLED
BILLS (S. 713) GRANTING JURISDICTION OF THE COURT OF CLAIMS TO HEAR THE
CASE OF DAVID A. WRIGHT, AND (S. 929) FOR THE RELIEF OF THE SOUTHERN
PRODUCTS CO., WHICH HAD PASSED BOTH HOUSES OF CONGRESS AND BEEN SIGNED
BY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT OF THE
SENATE. 

THE SENATE, AT 3:25 P.M. MONDAY, MAY 4, 1936, TOOK A RECESS UNTIL 12
NOON ON THURSDAY, MAY 7, 1936. 

DURING THE INTERIM THE PRESIDENT OF THE UNITED STATES SENT BY
MESSENGER TWO MESSAGES ADDRESSED TO THE SENATE, EACH DATED MAY 5, 1936,
GIVING HIS REASONS FOR NOT APPROVING, RESPECTIVELY, SENATE BILL 713 AND
SENATE BILL 929.  THE SENATE NOT BEING IN SESSION ON THE LAST DAY WHICH
THE PRESIDENT HAD FOR THE RETURN OF THESE BILLS UNDER THE PROVISIONS OF
THE CONSTITUTION OF THE UNITED STATES, IN ORDER TO PROTECT THE
INTERESTS OF THE SENATE, SO THAT IT MIGHT HAVE THE OPPORTUNITY TO
RECONSIDER THE BILLS, I ACCEPTED THE MESSAGES, AND I NOW PRESENT TO YOU
THE PRESIDENT'S VETO MESSAGES, WITH THE ACCOMPANYING PAPERS, FOR
DISPOSITION BY THE SENATE.    SINCERELY YOURS,

                           EDWIN A. HALSEY,

                      SECRETARY OF THE SENATE." 

MR. JUSTICE CARDOZO TOOK NO PART IN THE DECISION OF THIS CASE. 

MR. JUSTICE STONE. 

I AGREE THAT THE LEGISLATION NOW IN QUESTION DID NOT BECOME A LAW,
NOT, AS THE COURT HOLDS, BECAUSE THE BILL VETOED BY THE PRESIDENT WAS
RETURNED TO THE SENATE WITHIN THE TEN-DAY PERIOD OR TO ANY PERSON
AUTHORIZED TO RECEIVE THE BILL IN ITS BEHALF, BUT BECAUSE THE SENATE BY
ITS ADJOURNMENT PREVENTED THE RETURN AND THUS CALLED INTO OPERATION THE
PROVISION THAT THE BILL "SHALL NOT BE A LAW" WHERE ADJOURNMENT PREVENTS
ITS RETURN TO THE HOUSE IN WHICH IT ORIGINATED, WITHIN THE TEN DAYS
ALLOWED TO THE PRESIDENT TO SIGN OR DISAPPROVE IT.  FN1 

THE REASONS ASSIGNED BY THE COURT FOR ITS CONCLUSION SEEM TO ME TO
HAVE NO APPLICATION TO THE CASE NOW BEFORE US, AND LEAVE IN CONFUSION
AND DOUBT THE MEANING AND EFFECT OF THE VETO PROVISIONS OF THE
CONSTITUTION, THE CERTAINTY OF WHOSE APPLICATION IS OF SUPREME
IMPORTANCE. 

NOTHWITHSTANDING THE COGENTLY REASONED RULING OF A UNANIMOUS COURT IN
THE POCKET VETO CASE, 279 U.S. 655, 682, THAT THE "HOUSE" TO WHICH A
BILL IS TO BE RETURNED BY THE PRESIDENT MEANS A HOUSE IN SESSION, WE
MAY ASSUME FOR PRESENT PURPOSES THAT EACH HOUSE OF CONGRESS, BY
APPROPRIATE ACTION, MAY CONSTITUTIONALLY CONFER UPON ITS SECRETARY,
CLERK, OR SOME OTHER OFFICER, AUTHORITY TO RECEIVE A BILL RETURNED TO
IT BY THE PRESIDENT.  BUT IT DOES NOT APPEAR THAT ANY SUCH AUTHORITY
HAS EVER BEEN CONFERRED ON THE SECRETARY OF THE SENATE, OR THAT HE HAS
HITHERTO ASSUMED TO ACT IN THAT CAPACITY.  IN THE POCKET VETO CASE THIS
COURT HELD THAT IN 1926 IT HAD NOT; AND THE SENATE HAS SINCE TAKEN NO
STEP IN THAT DIRECTION, PERHAPS BECAUSE OF OUR DICTUM IN THAT CASE THAT
SUCH ACTION WOULD BE UNCONSTITUTIONAL. 

THE HOUSES OF CONGRESS, BEING COLLECTIVE BODIES, TRANSACTING THEIR
ROUTINE BUSINESS BY MAJORITY ACTION, ARE CAPABLE OF ACTING ONLY WHEN IN
SESSION AND BY FORMAL ACTION RECORDED IN THEIR RESPECTIVE JOURNALS, OR
BY RECOGNITION, THROUGH SUCH ACTION, OF AN ESTABLISHED PRACTICE.  SINCE
THE FOUNDATION OF THE GOVERNMENT IT HAS BEEN THE SETTLED USAGE OF BOTH
HOUSES OF CONGRESS TO RECEIVE MESSAGES FROM THE PRESIDENT AND BILLS
DISAPPROVED AND RETURNED BY HIM, WHEN IN SESSION.  IT DOES NOT APPEAR
THAT IN THE PAST THE SECRETARY OF THE SENATE OR ANY OTHER PERSON HAS
ASSUMED TO ACT FOR EITHER HOUSE IN RECEIVING A BILL RETURNED BY THE
PRESIDENT, AND IN ONE RECORDED INSTANCE THE SECRETARY OF THE SENATE AND
ITS PRESIDENT DECLINED SO TO ACT.  FN2  THERE HAS BEEN NO ACTION AND NO
USAGE OF EITHER HOUSE RECOGNIZING THE EXISTENCE OF SUCH AUTHORITY IN
ANY ONE.  POCKET VETO CASE, SUPRA, 682 ET SEQ. 

THE SECRETARY OF THE SENATE IS APPOINTED BY THAT BODY TO SERVE AT ITS
PLEASURE, AND HIS DUTIES ARE PRESCRIBED BY THE SENATE RULES.  THEY GIVE
NO HINT THAT AMONG THESE DUTIES IS THE IMPORTANT FUNCTION OF ACTING AS
THE SENATE IN THE RECEIPT OF BILLS RETURNED TO IT BY THE PRESIDENT
DURING THE TEN-DAY PERIOD, OR RETAINING THEM IN CUSTODY PENDING ITS
REASSEMBLY WHEN THE RETURN IS DURING AN ADJOURNMENT.  NOT ONLY HAVE
BOTH HOUSES OF CONGRESS FAILED TO DESIGNATE ANY PERSON TO RECEIVE BILLS
RETURNED TO THEM BY THE PRESIDENT, BUT IN ONE INSTANCE THEY EXPLICITLY
REFUSED TO TAKE SUCH ACTION WHEN IT WAS PROPOSED.  FN3 

THE CONCLUSION SEEMS INESCAPABLE THAT WHATEVER CONSTITUTIONAL POWER
THE SENATE AND HOUSE MAY POSSESS TO DESIGNATE AN OFFICER TO RECEIVE IN
THEIR BEHALF BILLS RETURNED BY THE PRESIDENT, THEY HAVE NOT EXERCISED
IT; THE CONSTITUTION, WHICH DIRECTS THAT BILLS SHALL BE RETURNED TO THE
HOUSE IN WHICH THEY ORIGINATE, HAS MADE NO SUCH DESIGNATION, AND
NEITHER THE CONSTITUTION NOR ANY STATUTE, RULE OR USAGE HAS INDICATED
ANY PERSON WHO COULD SO ACT, OR PRESCRIBED FOR ANYONE DUTIES EMBRACING
SUCH A FUNCTION. 

IN SUCH CIRCUMSTANCES DELIVERY OF A BILL TO THE SECRETARY OF THE
SENATE DURING ITS ADJOURNMENT WOULD SEEM TO BE NO MORE A COMPLIANCE
WITH THE CONSTITUTIONAL REQUIREMENT THAN WOULD ITS DEPOSIT BY THE
PRESIDENT'S MESSENGER WITH THE SERGEANT-AT-ARMS, A DOORKEEPER, OR ANY
OTHER PERSON NOT CLOTHED WITH AUTHORITY OR CHARGED WITH OFFICIAL DUTY
IN THE PREMISES, WHO MIGHT BE INDUCED TO RECEIVE THE BILL AND UNDERTAKE
TO BRING IT TO THE ATTENTION OF THE SENATE UPON REASSEMBLY.  FN4 

DOUBTS AS TO THE SCOPE AND EFFECT OF THE RULE NOW ANNOUNCED BY THE
COURT ARE MULTIPLIED BY THE INTIMATION THAT A DIFFERENT RULE MAY BE
APPLIED IN THE CASE OF ADJOURNMENT OF EITHER HOUSE OF CONGRESS, WITH
THE CONSENT OF THE OTHER, FOR MORE THAN THREE DAYS, AND THAT THE
PRESENT DECISION CAN, IN SOME WAY NOT DISCLOSED, BE DISTINGUISHED FROM
OUR RULING IN THE POCKET VETO CASE, WHERE THE RETURN OF A BILL TO THE
SENATE WAS HELD TO HAVE BEEN PREVENTED BY THE ADJOURNMENT OF THE
SENATE, PURSUANT TO CONCURRENT RESOLUTION, FROM JULY 3RD TO NOVEMBER
10TH, THE HOUSE HAVING AT THE SAME TIME ADJOURNED SINE DIE.  BUT SUCH
AN INTIMATION CAN REST ON NOTHING MORE SUBSTANTIAL THAN OUR
UNWILLINGNESS TO FACE THE OBVIOUS CONSEQUENCES OF WHAT IS NOW DECIDED. 
IF IT BE SAID THAT AN ESSENTIAL DIFFERENCE BETWEEN THE PRESENT CASE AND
THE POCKET VETO CASE LIES IN THE FACT THAT HERE THE PRESIDENT DELIVERED
THE BILL WITH HIS VETO MESSAGE TO THE SECRETARY OF THE SENATE, AND THAT
THERE HE RETAINED IT WITHOUT SIGNING, THEN THE RULE WHICH IS NOW
ANNOUNCED WILL, FOR ALL PRACTICAL PURPOSES, EXPIRE WITH ITS BIRTH.  WE
CAN HARDLY ASSUME THAT A PRESIDENT WOULD INVITE FURTHER CONGRESSIONAL
ACTION BY A RETURN OF A BILL WITH HIS VETO TO A SECRETARY OR OTHER
OFFICER OF THE HOUSE CONCERNED, DURING ITS ADJOURNMENT, IF BY RETENTION
OF THE BILL WITHOUT SIGNING, HE COULD MAKE THE VETO ABSOLUTE. 

AGAIN, IF IT BE SAID THAT A DISTINCTION IS TO BE DRAWN BETWEEN
ADJOURNMENT OF ONE HOUSE FOR THREE DAYS AND LONGER ADJOURNMENTS TAKEN
WITH THE CONCURRENCE OF THE OTHER HOUSE, NO PLAUSIBLE REASON CAN BE
ADVANCED FOR SAYING THAT THE SECRETARY OR ANY OTHER OFFICER OF THE
SENATE POSSESSES AUTHORITY TO RECEIVE RETURNED BILLS DURING A THREE-DAY
ADJOURNMENT WHICH HE DOES NOT POSSESS DURING A FOUR-DAY OR LONGER
ADJOURNMENT DURING A SESSION OF CONGRESS.  IN THE POCKET VETO CASE THE
SENATE ADJOURNED DURING A SESSION OF CONGRESS FOR FOUR MONTHS, THE
HOUSE CONSENTING, BUT THE TEN DAYS ALLOWED FOR CONSIDERATION OF THE
BILL BY THE PRESIDENT EXPIRED THE DAY AFTER ADJOURNMENT.  IF THE
DECISION IN THAT CASE IS TO STAND WITH THIS IT CAN ONLY BE BECAUSE THE
SECRETARY IN THE FORMER LOST ON THE DAY AFTER ADJOURNMENT AN AUTHORITY
WHICH HE RETAINED FOR A DAY AFTER ADJOURNMENT IN THE LATTER.  IF LOST,
IT WAS EITHER BECAUSE THE ADJOURNMENT WAS FOR LONGER THAN THREE DAYS
AND WAS THUS ONE WHICH COULD NOT BE EFFECTED WITHOUT A CONCURRENT
RESOLUTION, OR BECAUSE THE OTHER HOUSE HAD NOT REMAINED IN SESSION. 
SUCH DISTINCTIONS FIND AS LITTLE SUPPORT IN CONSTITUTION, LAWS AND
CONGRESSIONAL PRACTICE, AND IN REASON, AS DOES THE PROPOSITION THAT THE
SECRETARY OF THE SENATE IS, BY VIRTUE OF HIS APPOINTMENT AS SUCH,
CLOTHED WITH AUTHORITY TO RECEIVE IN ITS BEHALF BILLS RETURNED BY THE
PRESIDENT. 

IF IN THE POCKET VETO CASE THE SECRETARY OF THE SENATE, WHERE THE
BILL ORIGINATED, HAD AUTHORITY AFTER ADJOURNMENT DURING THE SESSION, TO
RECEIVE IT IN BEHALF OF THE SENATE, THE ADJOURNMENT DID NOT PREVENT THE
RETURN BY THE PRESIDENT, AND THE BILL, UPON HIS FAILURE TO SIGN OR
RETURN IT, BECAME LAW BY VIRTUE OF THE CONSTITUTIONAL PROVISION JUST AS
DID SOME 173 OTHER BILLS WHICH, UNTIL THIS MOMENT, HAVE BEEN REGARDED
AS DEAD LETTERS, AS THEY WERE DECLARED TO BE IN THE POCKET VETO CASE,
SUPRA, 691.  FN5  IF THE COURT WAS WRONG ON THAT POINT, ITS DECISION
WAS WRONG, AND IN THE INTERESTS OF A DEFINITE AND PRECISE
CONSTITUTIONAL PROCEDURE IN A FIELD WHERE DEFINITENESS AND PRECISION
ARE OF PARAMOUNT IMPORTANCE, IT SHOULD NOW BE FRANKLY OVERRULED. 

IF I AM WRONG IN MY CONCLUSION THAT THE PRESIDENT DID NOT IN THIS
CASE RETURN THE BILL TO THE SENATE BY RETURNING IT TO ITS SECRETARY
DURING ADJOURNMENT, THEN ADJOURNMENT DID NOT PREVENT ITS RETURN, THE
PRESIDENT'S VETO BECAME EFFECTIVE, AND THERE IS NO OCCASION FOR THE
COURT TO INDULGE IN AN ACADEMIC DISCUSSION OF WHAT MAY IN OTHER
CIRCUMSTANCES BE THE EFFECT OF AN ADJOURNMENT ALONE OF THE HOUSE IN
WHICH A BILL ORIGINATES, WHICH ACTUALLY PREVENTS SUCH A RETURN.  THE
PRONOUNCEMENT NOW MADE THAT THE PRESIDENT MAY BE SO DEPRIVED OF THE
VETO POWER OUGHT TO BE AVOIDED NOT ONLY BECAUSE, IN MY OPINION, IT IS
AN ERRONEOUS INTERPRETATION OF THE CONSTITUTION WHICH MAY HAVE GRAVE
CONSEQUENCES, BUT BECAUSE IT IS UNNECESSARY TO THE DECISION.  IF THE
EXPERIENCE OF ONE HUNDRED AND FIFTY YEARS OF CONSTITUTIONAL
INTERPRETATION HAS TAUGHT ANY LESSON, IT IS THE UNWISDOM OF MAKING
SOLEMN DECLARATIONS AS TO THE MEANING OF THAT INSTRUMENT WHICH ARE
UNNECESSARY TO DECISION.  THEY CAN SERVE NO USEFUL PURPOSE AND THEIR
ONLY EFFECT MAY BE TO EMBARRASS THE COURT WHEN DECISION BECOMES
NECESSARY.  O'DONOGHUE V. UNITED STATES, 289 U.S. 516, 550; HUMPHREY'S
EXECUTOR V. UNITED STATES, 295 U.S. 602, 626-627.  THE DECLARATION NOW
MADE, FOR THE FIRST TIME, THAT THE CONSTITUTION HAS LEFT AN UNDEFINED
AREA IN WHICH THE VETO POWER CANNOT BE EXERCISED, IS THE MORE
UNFORTUNATE SINCE, IN THE CIRCUMSTANCES, IT SEEMS ALMOST CERTAIN THAT
THE COURT WILL BE CALLED UPON TO REEXAMINE IT. 

IF, ON THE OTHER HAND, I AM RIGHT IN MY VIEW THAT THE PRESIDENT WAS
HERE PREVENTED FROM RETURNING THE BILL, WE ARE BROUGHT UNAVOIDABLY TO
THE DECISION OF THE QUESTION PRESENTED BY THE PETITION FOR CERTIORARI
AND ARGUED AT THE BAR AS THE CONTROLLING QUESTION, WHETHER THE
PRESIDENT IS DEPRIVED OF THE VETO POWER WHENEVER RETURN OF A BILL
WITHIN THE PRESCRIBED TEN DAYS IS PREVENTED BY THE ADJOURNMENT ALONE OF
THE HOUSE IN WHICH THE BILL ORIGINATED. 

THE FRAMERS, IN SEEKING TO ESTABLISH AND PRESERVE THE PRESIDENTIAL
VETO, WERE AWARE THAT THE ORIGINATING HOUSE, UNLIKE THE PRESIDENT WHO
IS WITHOUT INCENTIVE TO AVOID RECEIPT OF A BILL WHICH HE IS FREE TO
VETO, MIGHT HAVE THE STRONGEST MOTIVES TO AVOID THE VETO OF A BILL, IF
THAT WERE POSSIBLE, BY PREVENTING ITS RETURN OR BY CHALLENGING THE FACT
OF ITS RETURN.  THEY ACCORDINGLY TOOK CARE TO PROVIDE FOR THE RETURN OF
A BILL TO THE ORIGINATING HOUSE BY AN ACT OF PUBLIC NOTORIETY - ITS
DELIVERY TO THE HOUSE IN SESSION; AND RECOGNIZING THAT RETURN MIGHT BE
PREVENTED BY ADJOURNMENT, THEY DECLARED THAT IN THAT CASE IT SHOULD NOT
BECOME A LAW. 

THE POSSIBILITY THAT A RETURN MAY BE PREVENTED BY THE ADJOURNMENT OF
A SINGLE HOUSE DURING A SESSION OF CONGRESS IS NOT REMOVED BY DECIDING
THAT A SECRETARY OR SOME OTHER OFFICER OF THE ORIGINATING HOUSE MAY
RECEIVE A RETURNED BILL DURING THE PERIOD OF A THREE-DAY ADJOURNMENT. 
EITHER HOUSE MAY AND DOES ON OCCASION ADJOURN FOR LONGER PERIODS, WITH
THE CONSENT OF THE OTHER.  FN6  AN ADJOURNMENT COINCIDENT WITH DEATH OR
ABSENCE OF THE OFFICER MAY PREVENT THE RETURN.  WHATEVER AUTHORITY IN
THE PREMISES THE SENATE OR THE HOUSE MAY GIVE TO ITS OFFICER, IT MAY
WITHHOLD OR WITHDRAW.  IF THE DICTUM NOW PRONOUNCED CORRECTLY STATES
THE FUNDAMENTAL LAW, THE ORIGINATING HOUSE MAY SHORTEN THE PERIOD FOR
THE EXERCISE OF THE VETO POWER OR THWART IT ALTOGETHER BY THE SIMPLE
EXPEDIENT OF ADJOURNMENT AFTER WITHDRAWING THE SUPPOSED AUTHORITY OF
ANY OFFICER TO RECEIVE THE VETOED BILL. 

THIS COURT HAS EMPHASIZED, AS DOES THE LANGUAGE OF THE CONSTITUTION,
THE GREAT IMPORTANCE OF THE VETO POWER AND THE DOMINATING PURPOSE
EXPRESSED IN THE CONSTITUTIONAL PROVISION THAT THE POWER SHALL NOT BE
CURTAILED OR THE TEN DAYS, ALLOWED FOR ITS EXERCISE, SHORTENED. 
EDWARDS V. UNITED STATES, 286 U.S. 482, 486, 493-494; POCKET VETO CASE,
SUPRA, P. 678.  THE WORDS MAKE IT CERTAIN THAT THE ONLY ADJOURNMENT
WHICH CAN PREVENT RETURN OF A BILL BY THE PRESIDENT IS THAT OF THE
HOUSE IN WHICH THE BILL ORIGINATES AND TO WHICH, IF VETOED, IT IS TO BE
RETURNED.  CONTINUANCE IN SESSION OF THE OTHER HOUSE DOES NOT
FACILITATE RETURN.  NO MORE CAN ITS ADJOURNMENT OBSTRUCT RETURN. 
ADJOURNMENT BY THE ORIGINATING HOUSE CAN ALONE HAVE THE CONSEQUENCE TO
BE GUARDED AGAINST, PREVENTION OF RETURN.  HENCE, IT WAS ADJOURNMENT OF
THE ORIGINATING HOUSE WITH WHICH THE FRAMERS WERE CONCERNED.  THERE IS
NO REASON OF WHICH WE ARE AWARE, AND NONE HAS BEEN SUGGESTED, FOR
SUPPOSING THAT IN CREATING AND PROTECTING THE VETO POWER THEY REGARDED
THE ADJOURNMENT VEL NON OF THE NON-ORIGINATING HOUSE AS OF ANY
CONSEQUENCE, OR THAT THEY HAD ANY THOUGHT OF LEAVING THE PRESIDENT
STRIPPED OF THE VETO POWER, EITHER BY CHANCE OR BY DESIGN, WHENEVER THE
ORIGINATING HOUSE ADJOURNED WITHOUT THE OTHER.  THE MEN WHO CREATED THE
FRAMEWORK OF OUR GOVERNMENT ARE NOT LIGHTLY TO BE CHARGED WITH SUCH AN
OMISSION.  THE CHARGE NOW MADE FINDS ITS ONLY SUPPORT IN A PUNCTILIO OF
GRAMMAR. 

"...  WE MUST NEVER FORGET, THAT IT IS A CONSTITUTION WE ARE
EXPOUNDING."  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 407.  ITS
PROVISIONS ARE NOT TO BE INTERPRETED LIKE THOSE OF A MUNICIPAL CODE OR
OF A PENAL STATUTE, THOUGH EVEN THE LATTER IS TO BE READ SO AS NOT TO
DEFEAT ITS OBVIOUS PURPOSE, UNITED STATES V. RAYNOR, ANTE, P. 540, OR
LEAD TO ABSURD CONSEQUENCES.  UNITED STATES V. KATZ, 271 U.S. 354,
362.  IN DEFINING THEIR SCOPE SOMETHING MORE IS INVOLVED THAN
CONSULTATION OF THE DICTIONARY AND THE RULES OF ENGLISH GRAMMAR.  THEY
ARE TO BE READ AS A VITAL PART OF AN ORGANIC WHOLE SO THAT THE HIGH
PURPOSE WHICH ILLUMINES EVERY SENTENCE AND PHRASE OF THE INSTRUMENT MAY
BE GIVEN EFFECT IN A CONSISTENT AND HARMONIOUS FRAMEWORK OF
GOVERNMENT. 

THE COURT HAS HITHERTO CONSISTENTLY HELD THAT A LITERAL READING OF A
PROVISION OF THE CONSTITUTION WHICH DEFEATS A PURPOSE EVIDENT WHEN THE
INSTRUMENT IS READ AS A WHOLE, IS NOT TO BE FAVORED.  THE PHRASE "DUE
PROCESS" IN THE FIFTH AND FOURTEENTH AMENDMENTS HAS LONG SINCE BEEN
EXPANDED BEYOND ITS LITERAL MEANING OF DUE PROCEDURE.  SEE DAVIDSON V.
NEW ORLEANS, 96 U.S. 97; CF. BRANDEIS, J., CONCURRING IN WHITNEY V.
CALIFORNIA, 274 U.S. 357, 373.  THE TERM "CONTRACT" IN THE CONTRACT
CLAUSE IS NOT CONFINED LITERALLY TO THE CONTRACTS OF THE LAW
DICTIONARY.  DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518.  THE
PROHIBITION AGAINST THEIR IMPAIRMENT HAS NEVER BEEN TAKEN TO BE
INEXORABLE.  HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, AND
CASES CITED AT 430 ET SEQ.  THE INJUNCTION THAT NO PERSON "SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF" IS NOT
LITERALLY APPLIED.  BROWN V. WALKER, 161 U.S. 591, 595.  "FROM WHATEVER
SOURCE DERIVED," AS IT IS WRITTEN IN THE SIXTEENTH AMENDMENT, DOES NOT
MEAN FROM WHATEVER SOURCE DERIVED.  EVANS V. GORE, 253 U.S. 245.  SEE,
ALSO, ROBERTSON V. BALDWIN, 165 U.S. 275, 281, 282; GOMPERS V. UNITED
STATES, 233 U.S. 604, 610; BAIN PEANUT CO. V. PINSON, 282 U.S. 499,
501; UNITED STATES V. LEFKOWITZ, 285 U.S. 452, 467. 

BUT HERE, REGARDLESS OF THE CONSTITUTIONAL PURPOSE AND THE LARGER
CONSIDERATIONS WHICH HAVE USUALLY GUIDED OUR INTERPRETATION OF THE
CONSTITUTION AS AN INSTRUMENT OF GOVERNMENT, IT IS INSISTED THAT THE
PHRASE "UNLESS THE CONGRESS BY THEIR ADJOURNMENT PREVENT ITS RETURN"
CANNOT BE TAKEN TO INCLUDE THE ADJOURNMENT ALONE OF THE SINGLE HOUSE
WHOSE ADJOURNMENT IS IN EVERY CASE THE ONLY EFFECTIVE MEANS OF
PREVENTING A RETURN.  IT IS SAID THAT THE WORD "CONGRESS" USED TO
DESCRIBE THE BODY WHOSE ADJOURNMENT OCCASIONS THE POCKET VETO, FOLLOWED
AS IT IS BY THE PLURAL POSSESSIVE PRONOUN "THEIR," CAN REFER ONLY TO
THE TWO HOUSES COMPRISED IN "THE CONGRESS" AND HENCE CANNOT REFER TO
ADJOURNMENT OF A SINGLE HOUSE.  THIS SUBORDINATION OF THE FRAMERS' MAIN
OBJECTIVE TO A METICULOUSLY GRAMMATICAL INTERPRETATION OF THEIR WORDS
IS UNWARRANTED.  IT WOULD HARDLY BE SUGGESTED THAT THE COMMAND, "EACH
HOUSE SHALL KEEP A JOURNAL OF ITS PROCEEDINGS, AND FROM TIME TO TIME
PUBLISH THE SAME, EXCEPTING SUCH PARTS AS MAY IN THEIR JUDGMENT REQUIRE
SECRECY," (ART. I, SEC. 5, CL. 3) CALLS FOR THE CONCURRENCE OF THE
JUDGMENT OF ALL THE MEMBERS OF A HOUSE, IN ORDER TO BAN PUBLICATION OF
A JOURNAL:  "THEIR JUDGMENT" IS OBVIOUSLY THAT OF THE CONTROLLING PART
OF THE MEMBERSHIP - THAT PART WHOSE OPINION, UNDER APPLICABLE RULES OF
CONGRESSIONAL PROCEDURE, IS DECISIVE OF THE QUESTION.  A SIMILAR
ANALYSIS BASED ON THE PURPOSE AND CONTEXT OF THE CLAUSE NOW BEFORE US
DEMANDS RECOGNITION THAT THE DRAFTSMEN WERE CONCERNED WITH THE
ADJOURNMENT ONLY OF THAT PART OF THE CONGRESS TO WHICH RETURN WAS TO BE
MADE AND WHOSE ABSENCE WOULD THUS PREVENT RETURN OF A BILL BY THE
PRESIDENT.  IN THE LIGHT OF THESE DOMINANT FACTS IT SEEMS PLAIN THAT IN
USING THE WORDS "THEIR ADJOURNMENT" THE FRAMERS REFERRED TO ANY ACTION
TAKEN BY THE MEMBERS OF CONGRESS OF EITHER HOUSE OR BOTH HOUSES, WHICH
WAS EFFECTIVE TO PREVENT RETURN OF A BILL BY THE PRESIDENT TO THE
ORIGINATING HOUSE.  THE VERY FORCE OF THE CIRCUMSTANCES TO WHICH THE
WORDS ARE APPLIED GIVES EMPHASIS TO "ADJOURNMENT" AS THAT WHICH
PREVENTS RETURN, AND TO "THEIR" AS REFERRING TO THE ACTION OF THOSE
MEMBERS OF CONGRESS WHICH EFFECTS THE ADJOURNMENT.  THIS USAGE
PARALLELS THAT IN THE CLAUSE REQUIRING THE PUBLICATION OF THE JOURNALS
OF BOTH HOUSES "EXCEPTING SUCH PARTS AS MAY IN THEIR JUDGMENT REQUIRE
SECRECY."  IN BOTH INSTANCES THE SIGNIFICANT ACTION, ADJOURNMENT OR THE
EXERCISE OF JUDGMENT AS THE CASE MAY BE, IS THAT OF THOSE MEMBERS WHOSE
ACTION IS EFFECTIVE TO ACCOMPLISH THE CONTEMPLATED RESULT - THERE,
PROHIBITION OF PUBLICATION; HERE, PREVENTION OF RETURN TO THE
ORIGINATING HOUSE.  THUS READ, NO WORD IS WITHOUT APPROPRIATE MEANING
AND THE CLAUSE IS CONSISTENT BOTH WITH THE OBVIOUS PURPOSE AND WITH THE
GRAMMATICAL USAGE APPEARING ELSEWHERE IN THE CONSTITUTION. 

I CANNOT IGNORE THAT PURPOSE AND SAY THAT FOR NO DISCERNIBLE REASON
OTHER THAN OUR PRESENT-DAY NOTIONS OF GRAMMATICAL CONSTRUCTION WE ARE
COMPELLED TO READ THE WORDS AS EXCLUDING FROM THE OPERATION OF THE
CLAUSES DESIGNED TO PROTECT THE VETO POWER, EVERY CASE WHERE THE RETURN
OF A BILL IS PREVENTED BY ADJOURNMENT OF A SINGLE HOUSE. 

FN1  ARTICLE I, SEC. 7, CL. 2, OF THE CONSTITUTION READS AS FOLLOWS: 

"EVERY BILL WHICH SHALL HAVE PASSED THE HOUSE OF REPRESENTATIVES AND
THE SENATE, SHALL, BEFORE IT BECOME A LAW, BE PRESENTED TO THE
PRESIDENT OF THE UNITED STATES; IF HE APPROVE HE SHALL SIGN IT, BUT IF
NOT HE SHALL RETURN IT, WITH HIS OBJECTIONS TO THAT HOUSE IN WHICH IT
SHALL HAVE ORIGINATED, WHO SHALL ENTER THE OBJECTIONS AT LARGE ON THEIR
JOURNAL, AND PROCEED TO RECONSIDER IT.  IF AFTER SUCH RECONSIDERATION
TWO THIRDS OF THAT HOUSE SHALL AGREE TO PASS THE BILL, IT SHALL BE
SENT, TOGETHER WITH THE OBJECTIONS, TO THE OTHER HOUSE, BY WHICH IT
SHALL LIKEWISE BE RECONSIDERED, AND IF APPROVED BY TWO THIRDS OF THAT
HOUSE, IT SHALL BECOME A LAW.  BUT IN ALL SUCH CASES THE VOTES OF BOTH
HOUSES SHALL BE DETERMINED BY YEAS AND NAYS, AND THE NAMES OF THE
PERSONS VOTING FOR AND AGAINST THE BILL SHALL BE ENTERED ON THE JOURNAL
OF EACH HOUSE RESPECTIVELY.  IF ANY BILL SHALL NOT BE RETURNED BY THE
PRESIDENT WITHIN TEN DAYS (SUNDAYS EXCEPTED) AFTER IT SHALL HAVE BEEN
PRESENTED TO HIM, THE SAME SHALL BE A LAW, IN LIKE MANNER AS IF HE HAD
SIGNED IT, UNLESS THE CONGRESS BY THEIR ADJOURNMENT PREVENT ITS RETURN,
IN WHICH CASE IT SHALL NOT BE A LAW." 

FN2  ON MAY 19, 1888, PRESIDENT CLEVELAND ATTEMPTED TO RETURN A BILL
TO THE SENATE DURING AN ADJOURNMENT, BY TENDERING IT TO THE SECRETARY
AND TO THE PRESIDENT OF THE SENATE.  BOTH OFFICERS REJECTED THE TENDER,
"CLAIMING THAT THE RETURN OF SAID BILL AND THE DELIVERY OF SAID MESSAGE
COULD ONLY PROPERLY BE MADE TO THE SENATE WHEN IN ACTUAL SESSION." 
PRESIDENT CLEVELAND'S MESSAGE, SENATE JOURNAL, 50TH CONG., 1ST SESS. 

FN3  IN 1868 A BILL REPORTED BY THE SENATE JUDICIARY COMMITTEE AND
PASSED BY MAJORITY VOTE OF THE SENATE, PROVIDED FOR A RETURN OF A BILL
TO A HOUSE NOT SITTING BY DELIVERY OF IT AT THE OFFICE OF THE SECRETARY
OF THE SENATE OR OF THE CLERK OF THE HOUSE, AS THE CASE MIGHT BE.
STRONG OPPOSITION TO THE BILL DEVELOPED IN SENATE DEBATE, THE BILL WAS
NOT REPORTED OUT OF THE JUDICIARY COMMITTEE OF THE HOUSE, AND FAILED OF
PASSAGE.  POCKET VETO CASE, SUPRA, 686 ET SEQ. 

FN4  THE FACT THAT THE SENATE HAS TAKEN PAINS TO CONFER EXPRESS
AUTHORITY IN SOME INSTANCES, BY FORMAL RESOLUTION, GILFRY, PRECEDENTS,
226, 462, BY RULE, SENATE MANUAL, 1936, 5, 8, 12, 36, OR BY STANDING
ORDER, ID. AT 128 ET SEQ., PERSUADES THAT THE IMPORTANT POWER TO
RECEIVE A BILL WOULD NOT BE CONFERRED SUB SILENTIO. 

FN5  A MEMORANDUM PREPARED IN THE OFFICE OF THE ATTORNEY GENERAL AND
TRANSMITTED BY THE PRESIDENT TO CONGRESS IN 1927, H. DOC. NO. 493, 70TH
CONG., 2D SESS., CITES MORE THAN 400 BILLS AND RESOLUTIONS WHICH WERE
PASSED BY CONGRESS AND SUBMITTED TO THE PRESIDENT LESS THAN TEN DAYS
BEFORE FINAL OR INTERIM ADJOURNMENT OF CONGRESS, WHICH WERE NOT SIGNED
BY THE PRESIDENT OR RETURNED WITH HIS DISAPPROVAL.  OF THESE, 119 WERE
INSTANCES IN WHICH THE ADJOURNMENT WAS FOR A SESSION OF CONGRESS AS
DISTINGUISHED FROM ITS FINAL ADJOURNMENT.  NONE OF THESE BILLS OR
RESOLUTIONS WERE PLACED UPON THE STATUTE BOOKS OR TREATED AS HAVING
BECOME A LAW.  NO ATTEMPT APPEARS TO HAVE BEEN MADE TO ENFORCE THEM IN
THE COURTS, EXCEPT THE LAW INVOLVED IN THE POCKET VETO CASE.  IT DOES
NOT APPEAR THAT IN ANY OF THESE INSTANCES EITHER HOUSE OF CONGRESS HAS
TAKEN ANY OFFICIAL ACTION INDICATING THAT IN ITS JUDGMENT ANY OF THESE
BILLS BECAME LAWS.  SEE THE POCKET VETO CASE, SUPRA, 690, 691. 
EXAMINATION OF THE HOUSE CALENDARS SHOWS THAT IN THE PERIOD SINCE THAT
COVERED BY THE ATTORNEY GENERAL'S MEMORANDUM, 54 BILLS HAVE BEEN
POCKETED BEFORE THE END OF A CONGRESS WITH NO ATTEMPT TO RETURN THEM. 
THIS WAS DONE TWICE IN THE SEVENTY-FIRST CONGRESS, ONCE IN THE SEVENTY
SECOND CONGRESS, TWENTY-EIGHT TIMES IN THE SEVENTY-FOURTH CONGRESS, AND
TWENTY-THREE TIMES IN THE FIRST SESSION OF THE SEVENTY-FIFTH CONGRESS. 
SEE ALSO VETO MESSAGES:  RECORD OF BILLS VETOED AND ACTION TAKEN
THEREON BY THE SENATE AND HOUSE OF REPRESENTATIVES, FIFTY-FIRST
CONGRESS TO SEVENTY-FOURTH CONGRESS, INCLUSIVE, 1889-1936, COMPILED
UNDER THE DIRECTION OF EDWIN A. HALSEY, SECRETARY OF THE SENATE
(1936). 

FN6  CANNON, PRECEDENTS, VOL. 8, P. 816. 

MR. JUSTICE BRANDEIS CONCURS IN THIS OPINION. 
..END :















MINNESOTA TEA CO. V. HELVERING, 302 U.S. 609 


NO. 106.  ARGUED DECEMBER 16, 1937.  - DECIDED JANUARY 17, 1938.  - 89
F.(2D) 711, AFFIRMED. 


MONEY RECEIVED BY A CORPORATION BY EXCHANGE IN A REORGANIZATION AND
TURNED OVER TO ITS STOCKHOLDERS PROPORTIONALLY IN PURSUANCE OF THE PLAN
OF REORGANIZATION AND SUBJECT TO THEIR AGREEMENT TO ASSUME AND PAY OFF
INDEBTEDNESS OF THE CORPORATION OF THE SAME AMOUNT, WHICH THEY
THEREUPON FULFILLED, WAS NOT DISTRIBUTED, WITHIN THE MEANING OF SEC.
112(D)(1) AND (2) OF THE REVENUE ACT OF 1928, AND THE GAIN INCLUDED WAS
THEREFORE TAXABLE TO THE CORPORATION.  P. 612. 

IN PURPOSE AND EFFECT, THE TRANSACTION WAS TO PAY THE CORPORATION'S
DEBTS, USING THE STOCKHOLDERS AS A CONDUIT. 

MINNESOTA TEA CO. V. HELVERING, COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 665, TO REVIEW A DECREE REVERSING A DECISION OF
THE BOARD OF TAX APPEALS, 34 B.T.A. 145, OVERRULING AN INCOME TAX
ASSESSMENT.  SEE S.C. 296 U.S. 378. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

PETITIONER, IN 1928, BROUGHT ABOUT THE ORGANIZATION OF THE PETERSON
INVESTMENT COMPANY, AND TRANSFERRED TO IT CERTAIN ASSETS IN EXCHANGE
FOR THE ENTIRE CAPITAL STOCK OF THAT COMPANY.  THE STOCK WAS
IMMEDIATELY DISTRIBUTED TO PETITIONER'S STOCKHOLDERS.  SOON THEREAFTER,
PETITIONER TRANSFERRED ITS REMAINING ASSETS TO GRAND UNION COMPANY IN
EXCHANGE FOR 18,000 SHARES OF THAT COMPANY'S STOCK AND $426,842.52 IN
CASH.  THE CASH WAS IMMEDIATELY TRANSFERRED TO AND DIVIDED AMONG
PETITIONER'S STOCKHOLDERS, IN PROPORTION TO THEIR STOCK HOLDINGS, IN
PURSUANCE OF A PLAN OF REORGANIZATION.  THE BOARD OF TAX APPEALS, UPON
ITS FIRST CONSIDERATION OF THE CASE, HELD THAT NO REORGANIZATION HAD
BEEN EFFECTED UNDER SEC. 112(I)(1)(B) OF THE REVENUE ACT OF 1928.  28
B.T.A. 591.  THE CIRCUIT COURT OF APPEALS CONCLUDED OTHERWISE, REVERSED
THE BOARD, AND REMANDED THE CASE TO THE BOARD FOR FURTHER
CONSIDERATION.  76 F.(2D) 797.  UPON REVIEW, PURSUANT TO A WRIT OF
CERTIORARI, WE AFFIRMED THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS. 
HELVERING V. MINNESOTA TEA CO., 296 U.S. 378. 

UPON THE REMAND, THE BOARD, AFTER CONSIDERATION, REFUSED TO FOLLOW
THE RULING OF THE COMMISSIONER THAT $106,471.73 OF THE $426,842.52
CONSTITUTED TAXABLE ASSETS IN THE HANDS OF PETITIONER.  34 B.T.A. 145. 
THE COURT BELOW, REVERSING THE ACTION OF THE BOARD, SUSTAINED THE VIEW
OF THE COMMISSIONER, 89 F.(2D) 711; AND THE CASE AGAIN COMES HERE UPON
WRIT OF CERTIORARI. 

THE FACTS ARE NOT IN DISPUTE.  IN ADDITION TO THOSE ALREADY STATED,
IT APPEARS THAT IMMEDIATELY BEFORE THE RECEIPT BY PETITIONER OF THE
$426,842.52, ITS STOCKHOLDERS, AT A SPECIAL MEETING, ADOPTED THE
FOLLOWING RESOLUTION: 

"RESOLVED FURTHER THAT ALL MONEYS RECEIVED BY MINNESOTA TEA COMPANY
ON SUCH SALE OF ITS ASSETS AND IN CONSIDERATION THEREOF, WHENEVER
RECEIVED, SHALL BE IMMEDIATELY DISTRIBUTED TO THE STOCKHOLDERS OF
MINNESOTA TEA COMPANY RATABLY AND IN THE PROPORTION OF THEIR RESPECTIVE
STOCKHOLDINGS IN MINNESOTA TEA COMPANY UPON THE ASSUMPTION BY THE
STOCKHOLDERS OF ALL THE CORPORATE DEBTS OF MINNESOTA TEA COMPANY IN
ORDER TO ENABLE THE COMPANY TO HOLD ALL THE CORPORATE STOCK OR
SECURITIES RECEIVED BY IT FOR ITS ASSETS ON SUCH SALE THEREOF WITHOUT
BEING COMPELLED TO SELL ANY PART OF THE SAME, AND THE BOARD OF
DIRECTORS ARE HEREBY AUTHORIZED AND DIRECTED TO SO DISTRIBUTE THE SAID
MONEYS AS AFORESAID AND IN BEHALF OF THE COMPANY ENTER INTO A WRITTEN
AGREEMENT WITH THE STOCKHOLDERS, SIGNED AND EXECUTED BY THE COMPANY AND
ALL THE STOCKHOLDERS WHEREBY SAID STOCKHOLDERS, IN CONSIDERATION OF
SUCH DISTRIBUTION AND FOR THE PURPOSE OF ENABLING THE COMPANY TO
CONTINUE TO HOLD THE SAID CORPORATE STOCK AND SECURITIES WITHOUT BEING
COMPELLED TO SELL ANY PART THEREOF FOR THE PAYMENT OF EXISTING DEBTS,
AGREE TO PAY ALL THE CORPORATE DEBTS OF THE MINNESOTA TEA COMPANY
WHETHER DUE AND PAYABLE OR NOT AND WHETHER CERTAIN OR CONTINGENT." 

WHEN THE CASH WAS "DISTRIBUTED," PETITIONER'S DEBTS AMOUNTED TO
$106,471.73, ABOUT $6,500 OF WHICH WAS OWING TO THE STOCKHOLDERS
THEMSELVES.  IN PURSUANCE OF THE RESOLUTION, THE STOCKHOLDERS PAID ALL
THE DEBTS, RETAINING SUMS, AGGREGATING ABOUT $6,500, NECESSARY TO
DISCHARGE THE AMOUNT OF PETITIONER'S INDEBTEDNESS TO THEM. 

THE QUESTION FOR DETERMINATION IS WHETHER THE DELIVERY OF THE
$106,471.73 BY PETITIONER TO THE STOCKHOLDERS, AN EQUAL SUM THEREAFTER
BEING APPLIED BY THEM TO THE PAYMENT OF PETITIONER'S DEBTS IN PURSUANCE
OF THE RESOLUTION, CONSTITUTED A DISTRIBUTION WITHIN THE MEANING OF THE
PROVISIONS OF SEC. 112(D)(1) AND (2) OF THE REVENUE ACT OF 1928, COPIED
IN THE MARGIN.  FN1 

THESE PROVISIONS PLAINLY ESTABLISH THAT, IN RESPECT OF ANY CASH
RECEIVED AND NOT "DISTRIBUTED," THERE WAS A TAXABLE GAIN TO
PETITIONER.  AND, QUITE AS PLAINLY, PAYMENT OF THE DEBTS BY PETITIONER,
IF MADE DIRECTLY BY PETITIONER TO THE CREDITORS, WOULD NOT HAVE BEEN A
DISTRIBUTION UNDER THE STATUTE; FOR THAT CONTEMPLATES A DISTRIBUTION TO
STOCKHOLDERS, AND NOT PAYMENT TO CREDITORS.  IF, THEN, PETITIONER HAD
FOLLOWED THE SIMPLE COURSE OF RETAINING IN ITS OWN HANDS THE SUM HERE
IN QUESTION, AND SUBSEQUENTLY PAYING IT DIRECTLY TO THE CREDITORS, IT
NECESSARILY WOULD RESULT THAT LIABILITY OF PETITIONER FOR A TAX ON THE
AMOUNT OF GAIN COULD NOT BE AVOIDED.  AND, OBVIOUSLY, THIS IS THE
EFFECT OF WHAT WAS DONE, ALTHOUGH CIRCUITOUSLY. 

THE MONEY WAS RECEIVED BY PETITIONER AND WAS AVAILABLE FOR THE
PAYMENT OF ITS DEBTS.  IT WAS PUT INTO THE HANDS OF THE STOCKHOLDERS
UPON THE EXPRESS UNDERSTANDING, AS SHOWN BY THE RESOLUTION HERETOFORE
QUOTED, THAT THEY WOULD ASSUME ALL THE CORPORATE DEBTS OF PETITIONER,
AND WOULD ENTER INTO A WRITTEN AGREEMENT WITH PETITIONER "WHEREBY SAID
STOCKHOLDERS, IN CONSIDERATION OF SUCH DISTRIBUTION AND FOR THE PURPOSE
OF ENABLING THE COMPANY TO CONTINUE TO HOLD" THE CORPORATE STOCK AND
SECURITIES WHICH IT HAD RECEIVED IN THE REORGANIZATION "WITHOUT BEING
COMPELLED TO SELL ANY PART THEREOF FOR THE PAYMENT OF EXISTING DEBTS,
AGREE TO PAY ALL THE CORPORATE DEBTS OF THE MINNESOTA TEA COMPANY
..." 

IN PURSUANCE OF THE RESOLUTION, THE STOCKHOLDERS RECEIVED THE MONEY
FROM PETITIONER TO THE EXTENT OF $106,471.73, NOT AS A DISTRIBUTION FOR
THEIR BENEFIT BUT AS A FUND THE EQUIVALENT OF WHICH THEY WERE BOUND TO
PASS ON, AND DID PASS ON, TO THE CREDITORS.  THE CONCLUSION IS
INESCAPABLE, AS THE COURT BELOW VERY CLEARLY POINTED OUT, THAT BY THIS
ROUNDABOUT PROCESS PETITIONER RECEIVED THE SAME BENEFIT "AS THOUGH IT
HAD RETAINED THAT AMOUNT FROM DISTRIBUTION AND APPLIED IT TO THE
PAYMENT OF SUCH INDEBTEDNESS."  PAYMENT OF INDEBTEDNESS, AND NOT
DISTRIBUTION OF DIVIDENDS, WAS, FROM THE BEGINNING, THE AIM OF THE
UNDERSTANDING WITH THE STOCKHOLDERS AND WAS THE END ACCOMPLISHED BY
CARRYING THAT UNDERSTANDING INTO EFFECT.  A GIVEN RESULT AT THE END OF
A STRAIGHT PATH IS NOT MADE A DIFFERENT RESULT BECAUSE REACHED BY
FOLLOWING A DEVIOUS PATH.  THE PRELIMINARY DISTRIBUTION TO THE
STOCKHOLDERS WAS A MEANINGLESS AND UNNECESSARY INCIDENT IN THE
TRANSMISSION OF THE FUND TO THE CREDITORS, ALL ALONG INTENDED TO COME
TO THEIR HANDS, SO TRANSPARENTLY ARTIFICIAL THAT FURTHER DISCUSSION
WOULD BE A NEEDLESS WASTE OF TIME.  THE RELATION OF THE STOCKHOLDERS TO
THE MATTER WAS THAT OF A MERE CONDUIT.  THE CONTROLLING PRINCIPLE WILL
BE FOUND IN GREGORY V. HELVERING, 293 U.S. 465, 469-470; AND APPLYING
THAT PRINCIPLE HERE, THE JUDGMENT OF THE COURT BELOW IS AFFIRMED. 

FN1  "(D)  SAME - GAIN OF CORPORATION.  - IF AN EXCHANGE WOULD BE
WITHIN THE PROVISIONS OF SUBSECTION (B)(4) OF THIS SECTION IF IT WERE
NOT FOR THE FACT THAT THE PROPERTY RECEIVED IN EXCHANGE CONSISTS NOT
ONLY OF STOCK OR SECURITIES PERMITTED BY SUCH PARAGRAPH TO BE RECEIVED
WITHOUT THE RECOGNITION OF GAIN, BUT ALSO OF OTHER PROPERTY OR MONEY,
THEN - 

"(1)  IF THE CORPORATION RECEIVING SUCH OTHER PROPERTY OR MONEY
DISTRIBUTES IT IN PURSUANCE OF THE PLAN OF REORGANIZATION, NO GAIN TO
THE CORPORATION SHALL BE RECOGNIZED FROM THE EXCHANGE, BUT 

"(2)  IF THE CORPORATION RECEIVING SUCH OTHER PROPERTY OR MONEY DOES
NOT DISTRIBUTE IT IN PURSUANCE OF THE PLAN OF REORGANIZATION, THE GAIN,
IF ANY, TO THE CORPORATION SHALL BE RECOGNIZED, BUT IN AN AMOUNT NOT IN
EXCESS OF THE SUM OF SUCH MONEY AND THE FAIR MARKET VALUE OF SUCH OTHER
PROPERTY SO RECEIVED, WHICH IS NOT SO DISTRIBUTED." 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










OCEAN BEACH HEIGHTS V. INVEST. CO., 302 U.S. 614 


NO. 10.  ARGUED DECEMBER 8, 1937.  - DECIDED JANUARY 17, 1938.  - 87
F.(2D) 978, REVERSED. 


1.  IN THE ABSENCE OF A LAW AUTHORIZING THE CREATION OF A MUNICIPALITY
DE JURE THERE CAN BE NONE DE FACTO.  P. 619. 

2. ACTING UNDER A FLORIDA STATUTE GRANTING NO AUTHORITY TO INCLUDE
NON-CONTIGUOUS AREAS, ELECTORS RESIDING ON THE WEST SIDE OF A BAY
INCORPORATED A TOWN WITH BOUNDARIES DESCRIBED AS EMBRACING ALSO LAND ON
THE EAST SIDE.  HOLDERS OF BONDS THEREAFTER ISSUED BY THE TOWN AND
DEFAULTED, SOUGHT, BY LITIGATION IN THE FEDERAL COURT AGAINST THE TOWN
AND EAST SIDE LAND OWNERS, TO REQUIRE A TAX LEVY ON ALL OF THE LANDS,
TO PROVIDE PAYMENT.  HELD: 

(1)  UNDER THE STATUTE THE TOWN HAD ACQUIRED NO JURISDICTION, DE JURE
OR DE FACTO, OVER THE EAST SIDE LANDS.  P. 619. 

(2)  ACQUIESCENCE BY OWNERS OF EAST SIDE LAND IN EARLIER ATTEMPTED
EXERCISES OF JURISDICTION OVER THEM UPON THE PART OF THE TOWN
AUTHORITIES, INCLUDING TAXATION, COULD NOT INVEST THE TOWN WITH DE
FACTO JURISDICTION.  ID. 

(3)  THE BILL SHOULD BE DISMISSED.  P. 620. 

OCEAN BEACH HEIGHTS, INC., ET AL. V. BROWNCRUMMER INVESTMENT CO. ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 301 U.S. 673, TO REVIEW THE AFFIRMANCE OF A DECREE
GRANTING AN INJUNCTION TO RESTRAIN INTERFERENCE WITH THE LEVY OF A TOWN
TAX ON LAND FOR THE PAYMENT OF THE PLAINTIFFS' BONDS.  SEE ALSO 69
F.(2D) 105; 11 F.SUPP.  73. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER FOR THE PAYMENT OF ITS OUTSTANDING BONDS THE
RESPONDENT TOWN MAY TAX PETITIONERS' LANDS WHICH, WITHOUT STATUTORY
AUTHORITY, WERE INCLUDED BY BOUNDARIES DEFINED IN PROCEEDINGS FOR ITS
INCORPORATION.  PETITIONERS' CONTENTION IS THAT THE LANDS NEVER WERE
WITHIN THE BOUNDARIES OF THE TOWNS DE JURE OR DE FACTO AND THAT
THEREFORE THEY ARE NOT SUBJECT TO ITS TAXING POWER. 

THE FLORIDA STATUTES EMPOWER THE MALE INHABITANTS OF ANY HAMLET,
VILLAGE OR TOWN "TO ESTABLISH FOR THEMSELVES A MUNICIPAL GOVERNMENT"
(COMPILED GENERAL LAWS, 1927, SEC. 2935) TO BE DESIGNATED AN
INCORPORATED TOWN IF IT CONTAINS LESS THAN 300 REGISTERED VOTERS, SEC.
2936.  THEY REQUIRE NOTICE SPECIFYING TIME AND PLACE OF MEETING AND THE
PROPOSED CORPORATE LIMITS, SEC. 2937, AND DIRECT THAT "THE QUALIFIED
ELECTORS PRESENT, BEING NOT LESS THAN TWO-THIRDS OF THOSE WHOM IT IS
PROPOSED TO INCORPORATE AND NOT LESS THAN TWENTY-FIVE IN NUMBER, SHALL
SELECT A CORPORATE NAME ...  FOR THE MUNICIPALITY  ...  AND DESIGNATE
BY DEFINITE METES AND BOUNDS THE TERRITORIAL LIMITS," SEC. 2938. 

IN 1892, IN TOWN OF ENTERPRISE V. STATE, 29 FLA. 128; 10 SO. 740,
744; THE STATE SUPREME COURT HELD THAT THE STATUTE DID NOT PERMIT
INCORPORATION OF DISCONNECTED TRACTS OF LAND, FOUND A PART OF THE
TERRITORY PROPOSED TO BE INCORPORATED TO BE DISCONNECTED FROM THE OTHER
PART, AND DECLARED (P. 145):  "AN ATTEMPT TO INCORPORATE TWO DISTINCT
DETACHED TRACTS OF LAND, AS CORPORATE TERRITORY UNDER ONE GOVERNMENT,
IS UNAUTHORIZED AND VOID...." 

IN 1926, ELECTORS RESIDING IN DADE COUNTY, FLORIDA, ON THE WEST SIDE
OF BISCAYNE BAY, INCORPORATED A TOWN, MIAMI SHORES, NOW CALLED NORTH
MIAMI.  THE BOUNDARIES SPECIFIED BY THE INCORPORATORS INCLUDED
APPROXIMATELY 16 SQUARE MILES, 14 OF WHICH WERE ON THE WEST SIDE OF THE
BAY AND HAD A POPULATION OF 2,500.  TWO SQUARE MILES WERE ON THE EAST
SIDE AND HAD BUT 12 INHABITANTS.  THOUGH NEARLY VACANT, THESE LANDS
WERE MUCH MORE VALUABLE THAN ALL THE PROPERTY ON THE WEST SIDE.  THE
WATER SEPARATING THE TWO AREAS IS ABOUT A HALF MILE WIDE.  AT THE TIME
OF INCORPORATION, CONSTRUCTION OF A CAUSEWAY HAD BEEN COMMENCED, BUT
ITS BEGINNINGS HAVING BEEN DESTROYED BY HURRICANE LATER IN THAT YEAR,
IT HAS NOT BEEN BUILT.  BY LAND THE DISTANCE BETWEEN THE SETTLEMENT ON
THE WEST SIDE AND THE EAST SIDE AREA IS ABOUT TEN MILES, AND TO GO BY
LAND FROM ONE TO THE OTHER IT IS NECESSARY TO PASS THROUGH ANOTHER
MUNICIPALITY.  PETITIONERS OWN LANDS ON THE EAST SIDE. 

BETWEEN JANUARY 1, 1927 AND APRIL 1, 1928, THE TOWN ISSUED BONDS,
$238,000 OF WHICH ARE OUTSTANDING.  IN EACH BOND THE TOWN PLEDGED ITS
FAITH AND CREDIT FOR PAYMENT AND DECLARED THAT PROVISION HAD BEEN MADE
FOR THE LEVY AND COLLECTION, EACH YEAR THAT THE BOND REMAINED
OUTSTANDING AND UNPAID, OF SUFFICIENT TAXES ON ALL TAXABLE PROPERTY
WITHIN ITS LIMITS TO PAY PRINCIPAL AND INTEREST AS THEY CAME DUE.  BUT
NONE OF THE BONDS CONTAINED ANY STATEMENT INDICATING THE BOUNDARIES OF
THE TOWN OR IN ANY MANNER REPRESENTING THAT ANY PART OF THE AREA ON THE
EAST SIDE OF THE BAY WAS WITHIN ITS LIMITS.  THE BONDS WERE VALIDATED
BY DECREES OF THE CIRCUIT COURT FOR DADE COUNTY, SECS. 5106-5109,
COMPILED GENERAL LAWS, 1927.  NO OWNER OF EAST SIDE LAND WAS PARTY TO
THE VALIDATION SUITS AND NO QUESTION AS TO WHETHER THE TOWN INCLUDED
ANY PART OF THE LANDS EAST OF THE BAY WAS THERE INVOLVED.  PROCEEDS OF
THE BONDS WERE USED FOR THE CONSTRUCTION OF PERMANENT IMPROVEMENTS; THE
ONLY PART SPENT ON THE EAST SIDE WAS $6,000 FOR MOSQUITO ERADICATION,
MOST OF WHICH WENT FOR EQUIPMENT WHICH THE TOWN STILL OWNS. 

IN A QUO WARRANTO SUIT BROUGHT BY THE STATE ON THE RELATION OF ITS
ATTORNEY GENERAL IN AUGUST, 1929, AND IN A LATER SUIT BROUGHT BY OWNERS
OF EAST SIDE LANDS TO CANCEL TAX CERTIFICATES ON THEIR LANDS, THE STATE
SUPREME COURT HELD THAT THE STATUTE RELIED ON FOR CREATION OF THE
MUNICIPALITY DID NOT AUTHORIZE INCLUSION OF NON-CONTIGUOUS AREAS. 
MAHOOD V. STATE, 101 FLA. 1254; 133 SO. 90.  LEATHERMAN V. ALTA CLIFF
CO., 114 FLA. 305; 153 SO. 845.  AND IN THOSE SUITS IT WAS FINALLY
ADJUDGED THAT THE EAST SIDE WAS NOT AND NEVER HAD BEEN A PART OF THE
INCORPORATED TOWN, AND THAT THE TOWN NEVER ACQUIRED JURISDICTION DE
JURE OR DE FACTO OVER THE LAND EAST OF THE BAY.  A DECREE OF OUSTER AS
TO THE EAST SIDE LAND WAS ENTERED IN DECEMBER, 1931, AND TAX
CERTIFICATES ON LANDS ON THAT SIDE WERE CANCELED.  NO BONDHOLDER WAS A
PARTY TO EITHER OF THESE SUITS. 

PRIOR TO THE QUO WARRANTO SUIT, THE JURISDICTION OF THE TOWN OVER THE
EAST SIDE WAS NOT CHALLENGED BY THE STATE, PROPERTY OWNERS OR OTHERS. 
AND UNTIL PREVENTED BY THE DECREE OF OUSTER, THE TOWN EXERTED MUNICIPAL
AUTHORITY ON BOTH SIDES OF THE BAY WITHIN THE BOUNDARIES DEFINED BY
WEST SIDE ELECTORS ACTING TO INCORPORATE THE TOWN.  IT LAID TAXES ON
EAST SIDE LANDS, SOME OF WHICH WERE PAID BY PETITIONERS. 

IN 1930 RESPONDENT SUED THE TOWN IN THE UNITED STATES DISTRICT COURT
FOR SOUTHERN FLORIDA AND GOT JUDGMENT ON NINE OF THE BONDS.  THERE WAS
INVOLVED NO QUESTION AS TO WHETHER THE EAST SIDE LANDS EVER WERE WITHIN
THE TOWN OR LIABLE TO BE TAXED TO PAY THE BONDS.  IN 1931 RESPONDENT
BROUGHT IN THE SAME COURT A MANDAMUS SUIT TO COMPEL THE TOWN AND ITS
OFFICERS TO LEVY TAXES ON ALL THE LANDS WITHIN THE BOUNDARIES DEFINED
BY THE INCORPORATORS.  OWNERS OF LAND ON THE EAST SIDE INCLUDING
PETITIONERS WERE PERMITTED TO INTERVENE.  THEY MAINTAINED THAT THE TOWN
HAD NO JURISDICTION OVER THEIR LANDS OR AUTHORITY TO TAX THEM.  THE
COURT ENTERED A DECREE COMMANDING THE TOWN AND ITS OFFICERS TO TAX ALL
THE PROPERTY WITHIN THE TOWN LIMITS AS ORIGINALLY DEFINED.  THE TOWN
AND ITS OFFICERS DID NOT OBJECT TO THE DECREE NOR APPEAL FROM IT.  THE
INTERVENING EAST SIDE OWNERS ATTEMPTED TO HAVE IT REVIEWED IN THE
CIRCUIT COURT OF APPEALS.  THE COURT HELD THAT, AS THE JUDGMENT WAS NOT
AGAINST THEM, THEY HAD NO STANDING TO QUESTION IT AND DISMISSED THEIR
APPEAL.  69 F.(2D) 105. 

THEN RESPONDENT BROUGHT THIS SUIT FOR ITSELF AND OTHER BONDHOLDERS
AGAINST THE TOWN, ITS OFFICERS, THE CLERK OF THE CIRCUIT COURT OF DADE
COUNTY, AND EAST SIDE LAND OWNERS, INCLUDING THE PETITIONERS.  IT
ALLEGED THAT THE TOWN WAS UNABLE TO PAY THE BONDS UNLESS PERMITTED TO
LEVY AND COLLECT TAXES ON EAST SIDE PROPERTY; THAT THE TOWN AND ITS
OFFICERS WERE READY AND WILLING SO TO DO, BUT WERE PREVENTED BY THE
DECREES IN THE MAHOOD AND LEATHERMAN CASES, AND THAT THE CLERK OF THE
CIRCUIT COURT WAS BOUND BY THE DECREE IN THE LATTER CASE.  IT PRAYED AN
INJUNCTION TO RESTRAIN PETITIONERS FROM INTERFERING, BY USE OF THE
OUSTER DECREE OR OTHERWISE, WITH THE LEVY OR COLLECTION OF TAXES ON
EAST SIDE LANDS FOR THE PAYMENT OF RESPONDENT'S JUDGMENT AND THE
OUTSTANDING BONDS AND TO RESTRAIN THE TOWN AND THE CLERK OF THE COURT
FROM REFUSING TO LEVY OR TO TAKE STEPS REQUIRED FOR COLLECTION OF SUCH
TAXES.  THE TOWN AND ITS OFFICERS ANSWERED AND IN EFFECT JOINED IN THE
PRAYER OF THE BILL.  PETITIONERS MOVED TO DISMISS, THE COURT DENIED
THEIR MOTION; TWO OF THEM ANSWERED.  THE PARTIES INTRODUCED THEIR
EVIDENCE, THE COURT FOUND THE FACTS AND ENTERED ITS DECREE
SUBSTANTIALLY AS PRAYED.  PETITIONERS ALONE APPEALED.  THE CIRCUIT
COURT OF APPEALS AFFIRMED ON THE GROUND THAT THE TOWN DE FACTO INCLUDED
THE EAST SIDE LANDS.  87 F.(2D) 978. 

THAT VIEW CANNOT BE SUSTAINED.  THIS CASE DIFFERS ESSENTIALLY FROM
THOSE DEALING WITH GOOD FAITH ATTEMPTS TO ORGANIZE MUNICIPALITIES UNDER
UNCONSTITUTIONAL ENACTMENTS PRESUMED VALID UNTIL ADJUDGED REPUGNANT TO
FUNDAMENTAL LAW.  SEE, E.G., CLAPP V. OTOE COUNTY, 104 FED. 473, 482. 
SPEER V. BOARD OF COUNTY COMM'RS, 88 FED. 749, 765.  ASHLEY V. BOARD OF
SUPERVISORS, 60 FED. 55, 64.  CITY OF WINTER HAVEN V. GILLESPIE, 84
F.(2D) 285, 287.  STATE V. CITY OF CEDAR KEYS, 122 FLA. 454, 462, 463;
165 SO. 672.  IN THE ABSENCE OF A LAW AUTHORIZING THE CREATION OF A
MUNICIPALITY DE JURE THERE CAN BE NONE DE FACTO.  MCQUILLAN, MUNICIPAL
CORPORATIONS (2ND ED.), SEC. 175.  CITY OF GUTHRIE V. WYLIE, 6 OKLA.
61, 66; 55 PAC. 103.  NORTON V. SHELBY COUNTY, 118 U.S. 425, 444. 
SHAPLEIGH V. SAN ANGELO, 167 U.S. 646, 655-656.  TULARE IRRIGATION
DISTRICT V. SHEPARD, 185 U.S. 1, 13.  UNITED STATES V. ROYER, 268 U.S.
394, 397.  EVENSON V. ELLINGSON, 67 WIS. 634, 646; 31 N.W. 342.  DUKE
V. TAYLOR, 37 FLA. 64, 77; 19 SO. 172.  THE TOWN DE JURE COULD NOT BE
MADE TO INCLUDE THE EAST SIDE.  MAHOOD V. STATE, SUPRA.  LEATHERMAN V.
ALTA CLIFF CO., SUPRA.  MERE INSPECTION OF THE STATUTE AND THE DEFINED
BOUNDARIES UNMISTAKABLY SHOWS THAT THE WEST SIDE ELECTORS WERE WITHOUT
AUTHORITY TO INCORPORATE THE EAST SIDE TRACT WITH THAT IN WHICH THEY
RESIDED.  UNQUESTIONABLY, THESE WERE DETACHED TRACTS WITHIN THE MEANING
OF THE STATUTE.  THE STATE SUPREME COURT HAVING HELD THAT ATTEMPTED
INCORPORATION OF DETACHED AREAS WAS UNAUTHORIZED AND VOID (TOWN OF
ENTERPRISE V. STATE, SUPRA) THERE EXISTED NO COLOR OF AUTHORITY FOR THE
INCLUSION OF THE EAST SIDE.  THE EAST SIDE LANDS COULD NOT BE BROUGHT
WITHIN THE TAXING POWER OF THE TOWN BY THE OWNERS' ACQUIESCENCE IN ITS
ATTEMPTED EXERTION OF JURISDICTION OVER THEM AND PAYMENT OF TAXES
THEREON THAT IT IN FORM LAID PRIOR TO THE OUSTER DECREE.  THE TOWN DE
FACTO COULD NOT DERIVE FROM THE CONSENT OF THE EAST SIDE OWNERS
JURISDICTION THAT IT DE JURE WAS WITHOUT CAPACITY TO RECEIVE.  THE
CONSENT OF OWNERS OF LAND LOCATED BEYOND PERMISSIBLE LIMITS OF THE
MUNICIPALITY CANNOT BE MADE TO SERVE AS WOULD A STATUTORY GRANT OF
POWER.  HAYES V. HOLLY SPRINGS, 114 U.S. 120, 126-127.  MERRILL V.
MONTICELLO, 138 U.S. 673, 693-694.  AS THE EAST SIDE LANDS NEVER BECAME
LIABLE TO BE TAXED BY THE TOWN TO PAY ITS BONDS, RESPONDENTS WERE NOT
ENTITLED TO RESTRAIN PETITIONERS FROM DEFENDING AGAINST LEVY AND
COLLECTION OF THE TAXES OR TO ANY RELIEF IN THIS SUIT.  THE DECREE OF
THE CIRCUIT COURT OF APPEALS WILL BE REVERSED AND THE CASE WILL BE
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO DISMISS THE BILL. 
REVERSED. 
..END :











CREEK NATION V. UNITED STATES, 302 U.S. 620 


NO. 140.  ARGUED JANUARY 3, 1938.  - DECIDED JANUARY 17, 1938.  - 84 CT.
CLS. 12, REVERSED. 


1.  CREEK LANDS, ERRONEOUSLY SURVEYED AS LANDS OF OTHER TRIBES, WERE,
BECAUSE OF THE ERROR AND THROUGH MISAPPLICATION OF AN ACT OF CONGRESS,
DISPOSED OF BY ALLOTMENT AND PATENT IN SEVERALTY TO MEMBERS OF THE
OTHER TRIBES AND BY SALE AND PATENT TO SETTLERS.  HELD THAT THE TAKING
TOOK PLACE NOT AT THE DATE OF THE ACT BUT AT THE TIMES OF THE SEVERAL
DISPOSITIONS; AND VALUATIONS FOR THE PURPOSE OF FIXING COMPENSATION
MUST BE AS OF THOSE TIMES.  CF. S.C. 295 U.S. 103.  P. 620. 

2.  RULES LAID DOWN TO GOVERN THE VALUATIONS.  P. 622. 

THE CREEK NATION V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 666, TO REVIEW A JUDGMENT FIXING COMPENSATION TO
THE CREEK NATION FOR LANDS TAKEN BY THE UNITED STATES. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

WHEN THIS CASE WAS HERE BEFORE  FN1  PETITIONER WAS HELD ENTITLED TO
RECOVER COMPENSATION FROM THE RESPONDENT FOR THE TAKING OF LANDS
BELONGING TO THE PETITIONER CONSTITUTING A PORTION OF A LARGER TRACT
GRANTED TO THE CREEK NATION IN 1833.  THE BOUNDARY LINES OF
PETITIONER'S LANDS HAD BEEN ERRONEOUSLY RUN IN 1872 AND, AS A RESULT,
AN AREA SET APART FOR OTHER INDIAN TRIBES INCLUDED OVER FIVE THOUSAND
ACRES BELONGING TO THE PETITIONER.  THOSE TRIBES CEDED THEIR LANDS TO
THE RESPONDENT UPON AN AGREEMENT THAT ALLOTMENTS SHOULD BE MADE TO
THEIR MEMBERS IN SEVERALTY.  THE ACT OF FEBRUARY 13, 1891,  FN2  WHICH
RATIFIED THIS AGREEMENT, PROVIDED THAT ANY LANDS NOT SO ALLOTTED SHOULD
BE OPENED TO SETTLEMENT AND SOLD TO SETTLERS, THE PROCEEDS TO BE
COVERED INTO THE TREASURY AS PUBLIC MONEYS.  PURSUANT TO THIS STATUTE
LANDS WHICH IN TRUTH BELONGED TO PETITIONER WERE, DUE TO THE ERROR IN
THE SURVEY OF 1872, ALLOTTED AND PATENTED TO SAC AND FOX INDIANS AND
SOLD AND PATENTED TO SETTLERS IN THE PERIOD FROM 1893 TO 1909.  THE
PATENTEES HAVE SINCE HELD ADVERSELY TO PETITIONER.  AS WAS SAID IN THE
FORMER OPINION, "THE TRIBE CONTENDED FOR THE VALUE IN 1926, WHEN THE
SUIT WAS BROUGHT; WHILE THE GOVERNMENT STOOD FOR THE VALUE AT THE TIME
OF THE APPROPRIATION, WHICH IT INSISTED WAS IN 1873, WHEN DARLING'S
ERRONEOUS SURVEY WAS APPROVED BY THE COMMISSIONER OF THE GENERAL LAND
OFFICE, OR, IN THE ALTERNATIVE, AT THE TIME THE LANDS WERE DISPOSED OF
UNDER THE ACT OF 1891."  IT WAS HELD THAT THE ALTERNATIVE CONTENTION
WAS CORRECT AND, AS THE COURT OF CLAIMS HAD AWARDED THE PETITIONER
JUDGMENT FOR THE 1926 VALUE, THE CAUSE WAS REVERSED AND REMANDED.  UPON
A FURTHER HEARING THAT COURT OVERRULED THE CLAIM OF PETITIONER THAT THE
DATES OF ACTUAL DISPOSAL WERE THOSE AS OF WHICH VALUE SHOULD BE
ASCERTAINED AND VALUED THE LANDS TAKEN AS OF FEBRUARY 13, 1891, THE
DATE OF THE ACT PURSUANT TO WHICH THE EXECUTIVE HAD CAUSED THEM TO BE
PATENTED. 

IN THE FORMER OPINION, AFTER HOLDING THAT THE APPROVAL OF THE
ERRONEOUS SURVEY IN 1873 DID NOT CONSTITUTE AN APPROPRIATION OF
PETITIONER'S LANDS, THE COURT SAID:  "BUT NOT SO OF THE DISPOSALS UNDER
THE ACT OF 1891.  THEY WERE INTENDED FROM THEIR INCEPTION TO EFFECT A
CHANGE OF OWNERSHIP AND WERE CONSUMMATED BY THE ISSUE OF PATENTS, THE
MOST ACCREDITED TYPE OF CONVEYANCE KNOWN TO OUR LAW.  TRUE, THEY RESTED
ON AN ERRONEOUS APPLICATION OF THE ACT OF 1891 TO THE CREEK LANDS IN
THE STRIP; BUT, AS THAT APPLICATION WAS CONFIRMED BY THE UNITED STATES,
THE MATTER STANDS AS IF THE ACT HAD DISTINCTLY DIRECTED THE DISPOSALS. 
IT WAS THROUGH THEM THAT THE LANDS WERE TAKEN; SO THE COMPENSATION
SHOULD BE BASED ON THE VALUE AT THAT TIME,  ..." 

THE COURT BELOW HAS MISINTERPRETED THAT DECISION.  THE ACT OF 1891
DID NOT DISPOSE OF THE LANDS.  ITS ERRONEOUS APPLICATION AND THE
CONSEQUENT DISPOSALS OF THE LANDS TO ADVERSE HOLDERS CONSTITUTED THE
TAKING BY THE UNITED STATES.  THE PETITIONER IS ENTITLED TO THE PRESENT
FULL EQUIVALENT OF THE VALUE OF THE LANDS, WITHOUT IMPROVEMENTS, AS OF
THE DATE OF THE PATENTS OF THE VARIOUS PARCELS, IF, AS WE ASSUME, THE
PATENT IN EACH INSTANCE ISSUED PROMPTLY AFTER THE DELIVERY OF THE FINAL
CERTIFICATE; BUT IF A SUBSTANTIAL INTERVAL ELAPSED BETWEEN THE DATE OF
CERTIFICATE AND OF PATENT, THEN AS OF THE DATE OF THE CERTIFICATE.  A
FAIR APPROXIMATION OR AVERAGE OF VALUES MAY BE ADOPTED TO AVOID
BURDENSOME DETAILED COMPUTATION OF VALUE AS OF THE DATE OF DISPOSAL OF
EACH SEPARATE TRACT. 

THE JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  UNITED STATES V. CREEK NATION, 295 U.S. 103. 

FN2  C. 165, 26 STAT. 749. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :







UNITED STATES V. STEVENS, 302 U.S. 623 


NO. 143.  ARGUED JANUARY 3, 4, 1938.  - DECIDED JANUARY 17, 1938.  - 89
F.(2D) 151, REVERSED. 


AN EX-SOLDIER, UPON ENTERING THE NATIONAL HOME FOR DISABLED SOLDIERS,
SITUATE IN MASSACHUSETTS, CONTRACTED WITH ITS BOARD OF MANAGERS,
PURSUANT TO THE ACT OF JUNE 25, 1910, THAT UPON HIS DEATH WHILE A
MEMBER OF THE HOME, ALL OF HIS PERSONAL PROPERTY SHOULD BECOME VESTED
IN THE BOARD OF MANAGERS FOR THE SOLE USE AND BENEFIT OF THE POST FUND
OF THE HOME, SUBJECT TO BE RECLAIMED BY ANY LEGATEE OR PERSON ENTITLED
TO TAKE THE SAME BY INHERITANCE, AT ANY TIME WITHIN FIVE YEARS AFTER
HIS DEATH.  HE LEFT NO WILL.  HELD: 

1.  THE CONTRACT WAS VALID AND CONSISTENT WITH THE LAW OF
MASSACHUSETTS.  NOTICE TO THE HEIRS UNNECESSARY.  P. 626. 

2.  THAT HIS BANK DEPOSITS, NOT HAVING BEEN CLAIMED BY HIS NEXT OF
KIN WITHIN FIVE YEARS OF HIS DEATH, BECAME THE PROPERTY OF THE HOME. 
P. 628. 

UNITED STATES V. STEVENS, ADMINISTRATRIX, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, POST, P. 666, TO REVIEW THE REVERSAL OF A JUDGMENT, 15
F.SUPP.  139, RECOVERED BY THE UNITED STATES IN A SUIT AGAINST A TRUST
COMPANY OWING MONEY ON DEPOSIT TO THE CREDIT OF A DECEASED VETERAN, AND
AGAINST THE ADMINISTRATOR OF HIS ESTATE, AND PERSONS CLAIMING TO BE HIS
HEIRS AT LAW AND NEXT OF KIN.  THE DECREE OF THE DISTRICT COURT
REQUIRED THAT THE TRUST COMPANY PAY THE UNITED STATES THE AMOUNT OF THE
FUND AND ENJOINED THE INDIVIDUALS FROM ASSERTING ANY CLAIM TO IT. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

CAN THE UNITED STATES ENFORCE A CONTRACT EXECUTED BY AN EX-SOLDIER IN
ORDER TO OBTAIN ADMISSION INTO THE NATIONAL HOME FOR DISABLED VOLUNTEER
SOLDIERS, WHICH CONTRACT PROVIDES THAT UPON THE DEATH OF THE VETERAN
WHILE A MEMBER OF THE HOME, ALL HIS PERSONAL PROPERTY SHALL PASS TO THE
HOME SUBJECT TO BE RECLAIMED WITHIN FIVE YEARS BY ANY LEGATEE OR PERSON
ENTITLED TO RECEIVE THE PROPERTY BY INHERITANCE? 

THE DISTRICT COURT HELD THE CONTRACT VALID AND ENFORCEABLE.  FN1  THE
COURT OF APPEALS REVERSED.  FN2 

THE FACTS DISCLOSE THAT: 

THOMAS MCGOVERN, A NATIVE OF IRELAND, SERVED IN THE UNITED STATES
ARMY FROM 1877 TO 1882; IN 1904 HIS WIFE AND THREE DAUGHTERS LEFT HIM,
BUT A SON, ROBERT, CONTINUED TO LIVE WITH MCGOVERN UNTIL 1918 WHEN THE
SON (REPRESENTED IN THIS CAUSE BY A GUARDIAN) WAS COMMITTED TO A STATE
HOME FOR THE INSANE; THE COMPLETE SEVERANCE OF ALL FAMILY TIES AND
ASSOCIATIONS CONTINUED UNTIL MCGOVERN'S DEATH, AND THE WIFE AND
DAUGHTERS, LIVING MOST OF THE TIME IN BOSTON, MASSACHUSETTS, WERE
WHOLLY UNAWARE OF HIS WHEREABOUTS FOR THE LAST TWENTY YEARS OF HIS
LIFE, MOST OF WHICH WERE SPENT IN NEARBY CHELSEA; UNDER THESE
CIRCUMSTANCES, MCGOVERN, AGE 72, IN HIS APPLICATION FOR ADMISSION TO
THE HOME, STATED THAT THE NAMES AND ADDRESSES OF HIS WIFE AND NEAREST
RELATIVES WERE UNKNOWN, AND THAT HE DESIRED ADMISSION BECAUSE HE WAS
"UNABLE ON ACCOUNT OF HIS DISABILITY TO EARN HIS LIVING"; A DOCTOR'S
CERTIFICATE SHOWED THAT HIS MENTAL CONDITION WAS GOOD, AT THE DATE OF
ADMISSION, BUT THAT HE NEEDED MEDICAL TREATMENT AND ATTENTION DUE TO
SERIOUS PHYSICAL WEAKNESS AND AILMENTS.  HIS WRITTEN AGREEMENT WITH THE
HOME STATED: 

"THE SAID THOMAS MCGOVERN HEREBY AGREES THAT, IN EVENT OF HIS DEATH
WHILE A MEMBER OF THE NATIONAL MILITARY HOME FOR DISABLED VOLUNTEER
SOLDIERS, LEAVING NO HEIRS AT LAW OR NEXT OF KIN, ALL PERSONAL PROPERTY
OWNED BY HIM AT THE TIME OF HIS DEATH, INCLUDING MONEY OR CHOSES IN
ACTION HELD BY HIM AND NOT DISPOSED OF BY WILL, WHETHER SUCH PROPERTY
BE THE PROCEEDS OF PENSIONS OR OTHERWISE DERIVED, SHALL VEST IN AND
BECOME THE PROPERTY OF SAID BOARD OF MANAGERS FOR THE SOLE USE AND
BENEFIT OF THE POST FUND OF SAID HOME, AND THAT ALL PERSONAL PROPERTY
OF THE SAID THOMAS MCGOVERN SHALL UPON HIS DEATH, WHILE A MEMBER, AT
ONCE PASS TO AND VEST IN SAID BOARD OF MANAGERS, SUBJECT TO BE
RECLAIMED BY ANY LEGATEE OR PERSON ENTITLED TO TAKE THE SAME BY
INHERITANCE AT ANY TIME WITHIN FIVE YEARS AFTER THE DEATH OF SUCH
MEMBER;..." 

AT THE TIME OF HIS ADMISSION INTO THE HOME, MCGOVERN HAD SAVINGS
DEPOSITS WHICH WERE HIS PERSONAL PROPERTY.  SEPTEMBER 17, 1928, WHILE
AN INMATE OF THE HOME, HE DIED INTESTATE.  HIS WIFE DIED IN 1933
WITHOUT KNOWLEDGE OF HIS DEATH, AND NONE OF THE DAUGHTERS LEARNED OF
HIS DEATH UNTIL OCTOBER 19, 1935.  NO CLAIM TO MCGOVERN'S PROPERTY WAS
FILED WITH THE HOME WITHIN FIVE YEARS AFTER HIS DEATH. 

IN THIS ACTION BROUGHT BY THE UNITED STATES TO REQUIRE PAYMENT TO THE
HOME OF FUNDS OF MCGOVERN ON DEPOSIT IN A MASSACHUSETTS BANK AT HIS
DEATH, IT IS CONTENDED: 

(1)  THAT, BECAUSE MCGOVERN LEFT SURVIVING HEIRS, THE TITLE TO HIS
PERSONAL PROPERTY DID NOT PASS TO THE HOME; 

(2)  THAT THE ACT OF JUNE 25, 1910  FN3  AUTHORIZING THE HOME TO MAKE
THE CONTRACT WITH MCGOVERN IS INVALID. 

1.  THERE IS NO AMBIGUITY IN THE CONTRACT OR IN THE ACT WHICH
AUTHORIZED IT.  NO WORDS IN THE CONTRACT INDICATE THAT THE PERSONAL
PROPERTY SHOULD PASS TO THE HOME ONLY IN THE ABSENCE OF PERSONS
ENTITLED TO TAKE BY LAW.  ON THE CONTRARY, BOTH THE CONTRACT AND THE
ACT EVINCE A CLEAR INTENT THAT THE PERSONAL PROPERTY OF THE VETERAN,
WHEN NOT CLAIMED BY HEIRS OR LEGATEES WITHIN FIVE YEARS AFTER THE
VETERAN'S DEATH, SHOULD PASS TO THE HOME TO BE USED TO PROVIDE COMFORTS
AND ENTERTAINMENT FOR ITS INMATES.  "THE MEASURE (THE ACT OF 1910)
LEAVES THE MEMBER FREE TO DISPOSE BY WILL AND SAFEGUARDS TO THE
LEGATEES AND HEIRS THE RIGHT WITHIN FIVE YEARS TO RECLAIM 'ALL THE
PROPERTY' THAT BELONGED TO HIM AT THE TIME OF HIS DEATH.  AS TO THAT,
THERE IS NO AMBIGUITY AND THEREFORE NOTHING TO CONSTRUE."  NATIONAL
HOME V. WOOD, 299 U.S. 211, 216. 

2.  THE COURT OF APPEALS WAS OF THE OPINION THAT THE ACT OF CONGRESS
AUTHORIZING THE CONTRACT WAS VOID AS AN INTERFERENCE WITH THE RESERVED
RIGHTS OF THE STATE OF THE VETERAN'S LEGAL DOMICILE WHEN HE DIED
(MASSACHUSETTS) IN THAT "IT WAS AT MOST BUT AN ATTEMPT TO MAKE A FUTURE
TESTAMENTARY DISPOSITION OF MCGOVERN'S PROPERTY, WHEN SUCH A
DISPOSITION COULD ONLY BE EFFECTED BY WILL." 

THIS CONTRACT, HOWEVER, IS VALID UNDER THE APPLICABLE STATE LAW.  FN4
THE SUPREME COURT OF MASSACHUSETTS IN 1931 IN THE CASE OF HALE V.
WILMARTH, 274 MASS. 186, 189; 174 N.E. 232, SAID, "THE STATUTE OF
WILLS,  ...  DOES NOT PREVENT AN OWNER OF PROPERTY FROM STIPULATING BY
CONTRACT FOR THE DISPOSITION OF HIS PROPERTY AT THE TIME OF HIS
DEATH."  FN5 

DURING THE LIFE OF THE VETERAN, HIS PROPERTY WAS HIS OWN TO DISPOSE
OF AS HE DESIRED; HIS WAS AN "INTENT TO MAKE A MORE BINDING AND
IRREVOCABLE PROVISION THAN A LEGACY COULD BE"  FN6  AND A STIPULATION
FOR NOTICE TO HIS HEIRS OF THE FACT OF HIS DEATH WAS NOT REQUIRED TO
MAKE THE PROVISION VALID.  "NOT UNTIL THE ANCESTOR DIES IS THERE ANY
VESTED RIGHT IN THE HEIR."  JEFFERSON V. FINK, 247 U.S. 288, 294. 

IN PASSING THE ACT OF JUNE, 1910, CONGRESS MERELY DIRECTED THE TERMS
AND CONDITIONS UNDER WHICH VETERANS, CONSISTENTLY WITH STATE LAW, CAN
OBTAIN ADMITTANCE TO HOMES BUILT, MAINTAINED AND OPERATED BY THE
GOVERNMENT FOR THE BENEFIT OF VETERANS.  HOMES FOR THE AGED, NEEDY, OR
INFIRM, IN RETURN FOR THE BENEFITS BESTOWED BY THEM, GENERALLY RECEIVE
SOME BENEFIT FROM ANY PROPERTY OR ESTATES OF THEIR MEMBERS.  FN7 

WHEN MCGOVERN ENTERED THIS HOME HE WAS AGED, WITHOUT FAMILY TIES,
LONELY AND PHYSICALLY INCAPACITATED.  THERE HE RECEIVED CARE, FOOD,
SHELTER AND COMPANIONSHIP.  HE WOULD HAVE BEEN PRIVILEGED TO REMAIN IN
THE HOME EVEN THOUGH, AFTER ADMITTANCE, HE HAD CHOSEN TO MAKE THE
MEMBERS OF HIS FAMILY THE RECIPIENTS OF THE MONEY, BY GIFT, BY WILL, OR
BY NOTIFYING THEM TO CLAIM HIS PROPERTY AFTER HIS DEATH. 

THE CLAIM OF THE GOVERNMENT IS BASED ON A CONTRACT BETWEEN THE
VETERAN AND THE HOME.  NOTHING IN THE RECORD INDICATES THAT THE
AGREEMENT WAS NOT FAIRLY AND VOLUNTARILY ENTERED INTO BETWEEN THE
PARTIES, OR THAT IT WAS INEQUITABLE, UNJUST OR NOT UPON VALUABLE
CONSIDERATION.  BOTH PARTIES WERE COMPETENT TO MAKE THE CONTRACT.  THIS
CONTRACT IS VALID AND ENFORCEABLE, AND SINCE NO CLAIM WAS MADE BY HEIRS
OR LEGATEES WITHIN FIVE YEARS AFTER HIS DEATH, THE VETERAN'S PERSONAL
PROPERTY PASSED TO THE HOME FOR THE BENEFIT OF ITS INMATES.  THE DECREE
OF THE COURT OF APPEALS IS NOT IN HARMONY WITH THESE VIEWS AND IS
REVERSED. 

FN1  15 F.SUPP.  139. 

FN2  89 F.(2D) 151. 

FN3  ACT OF JUNE 25, 1910, C. 384, 36 STAT. 703, 736, U.S.C., TITLE
24, SEC. 136: 

"HEREAFTER THE APPLICATION OF ANY PERSON FOR MEMBERSHIP IN THE
NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS AND THE ADMISSION OF THE
APPLICANT THEREUNDER SHALL BE AND CONSTITUTE A VALID AND BINDING
CONTRACT BETWEEN SUCH APPLICANT AND THE BOARD OF MANAGERS OF SAID HOME
THAT ON THE DEATH OF SAID APPLICANT WHILE A MEMBER OF SUCH HOME,
LEAVING NO HEIRS AT LAW NOR NEXT OF KIN, ALL PERSONAL PROPERTY OWNED BY
SAID APPLICANT AT THE TIME OF HIS DEATH, INCLUDING MONEY OR CHOSES IN
ACTION HELD BY HIM AND NOT DISPOSED OF BY WILL, WHETHER SUCH PROPERTY
BE THE PROCEEDS OF PENSIONS OR OTHERWISE DERIVED, SHALL VEST IN AND
BECOME THE PROPERTY OF SAID BOARD OF MANAGERS FOR THE SOLE USE AND
BENEFIT OF THE POST FUND OF SAID HOME, THE PROCEEDS TO BE DISPOSED OF
AND DISTRIBUTED AMONG THE SEVERAL BRANCHES AS MAY BE ORDERED BY SAID
BOARD OF MANAGERS, AND THAT ALL PERSONAL PROPERTY OF SAID APPLICANT
SHALL, UPON HIS DEATH, WHILE A MEMBER, AT ONCE PASS TO AND VEST IN SAID
BOARD OF MANAGERS, SUBJECT TO BE RECLAIMED BY ANY LEGATEE OR PERSON
ENTITLED TO TAKE THE SAME BY INHERITANCE AT ANY TIME WITHIN FIVE YEARS
AFTER THE DEATH OF SUCH MEMBER.  THE BOARD OF MANAGERS IS DIRECTED TO
SO CHANGE THE FORM OF APPLICATION FOR MEMBERSHIP AS TO GIVE REASONABLE
NOTICE OF THIS PROVISION TO EACH APPLICANT AND AS TO CONTAIN THE
CONSENT OF THE APPLICANT TO ACCEPT MEMBERSHIP UPON THE CONDITIONS
HEREIN PROVIDED." 

FN4  "CONTRACTS RESPECTING THE DISPOSITION OF ONE'S PROPERTY AFTER
DEATH, ARE NOT UNCOMMON."  MURPHY V. MURPHY, 217 MASS. 233, 236; 104
N.E. 466. 

FN5  SEE, ALSO, HOLYOKE NATIONAL BANK V. BAILEY, 273 MASS. 551; 174
N.E. 230; EX PARTE SIMONS, 247 U.S. 239. 

FN6  KRELL V. CODMAN, 154 MASS. 454; 28 N.E. 578. 

FN7  SEE UNITED STATES V. BOWEN, 100 U.S. 508(CF. ORDER OF ST.
BENEDICT V. STEINHAUSER, 234 U.S. 640).  SEE DIGEST OF POOR RELIEF LAWS
OF THE SEVERAL STATES AND TERRITORIES AS OF MAY 1, 1936, PREPARED BY
ROBERT C. LOWE AND STAFF, LEGAL RESEARCH SECTION, UNDER THE SUPERVISION
OF A. ROSS ECKLER, COORDINATOR OF SPECIAL INQUIRIES, DIVISION OF SOCIAL
RESEARCH, WORKS PROGRESS ADMINISTRATION. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :
























UNITED STATES V. JACKSON, 302 U.S. 628 


NO. 199.  ARGUED JANUARY 5, 6, 1938.  - DECIDED JANUARY 17, 1938.  - 89
F.(2D) 572, AFFIRMED. 


SEC. 17 OF THE ECONOMY ACT OF MARCH 20, 1933, DECLARED THAT "ALL
PUBLIC LAWS GRANTING MEDICAL OR HOSPITAL TREATMENT, DOMICILIARY CARE,
COMPENSATION AND OTHER ALLOWANCES, PENSION, DISABILITY ALLOWANCE, OR
RETIREMENT PAY TO VETERANS AND THE DEPENDENTS OF VETERANS OF  ...  THE
WORLD WAR, ...  ARE HEREBY REPEALED, AND ALL LAWS GRANTING OR
PERTAINING TO YEARLY RENEWABLE TERM INSURANCE ARE HEREBY REPEALED
..."  HELD THAT IT WAS NOT INTENDED THEREBY TO REPEAL "AUTOMATIC
INSURANCE" GRANTED BY SEC. 401 OF THE WAR RISK INSURANCE ACT, AS
AMENDED, IN THE CASE OF SOLDIERS OF THE WORLD WAR WHO DIED OR BECAME
PERMANENTLY DISABLED WITHOUT HAVING APPLIED FOR INSURANCE WITHIN 120
DAYS AFTER ENTRANCE INTO OR EMPLOYMENT IN ACTIVE SERVICE.  P. 631. 

UNITED STATES V. JACKSON. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, POST, P. 673, TO REVIEW THE AFFIRMANCE OF A RECOVERY OF
"AUTOMATIC INSURANCE" IN A SUIT IN BEHALF OF AN INFANT WHOSE FATHER HAD
BEEN DRAFTED INTO THE MILITARY SERVICE IN APRIL, 1918 AND HAD DIED TWO
WEEKS LATER WITHOUT HAVING APPLIED FOR WAR RISK INSURANCE. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER THE ECONOMY ACT  FN1  REPEALED SEC. 401 OF
THE WAR RISK INSURANCE ACT FN2  AND THEREBY DEPRIVED VETERANS AND THEIR
BENEFICIARIES OF "AUTOMATIC INSURANCE." 

IN THIS SUIT, BROUGHT BY THE SON OF A SOLDIER WHO DIED IN SERVICE,
BOTH THE DISTRICT COURT  FN3 AND THE COURT OF APPEALS  FN4  WERE OF THE
OPINION THAT THE ECONOMY ACT DID NOT TERMINATE THE RIGHTS OF A
BENEFICIARY OF AUTOMATIC INSURANCE.  WE GRANTED CERTIORARI LIMITING
CONSIDERATION TO THE QUESTION OF THE REPEAL OF THE LAW PROVIDING
AUTOMATIC INSURANCE.  FN5 

DURING THE WORLD WAR, IT WAS THE POLICY OF THE GOVERNMENT TO ALLOW
SOLDIERS ONE HUNDRED AND TWENTY DAYS AFTER ENLISTMENT OR DRAFTING
WITHIN WHICH TO APPLY FOR AND PURCHASE INSURANCE.  FOR THIS PERIOD, IT
WAS INTENDED THAT THEY BE PROTECTED AS THOUGH THEY HAD BOUGHT
GOVERNMENT INSURANCE.  IN FURTHERANCE OF THIS POLICY, CONGRESS PROVIDED
THAT ALL VETERANS, WHO DIED OR BECAME TOTALLY AND PERMANENTLY DISABLED
WITHIN ONE HUNDRED AND TWENTY DAYS AFTER THEIR ENTRANCE INTO ACTIVE
SERVICE, SHOULD BE AUTOMATICALLY "DEEMED TO HAVE APPLIED FOR AND TO
HAVE BEEN GRANTED INSURANCE." 

IT IS HERE CONTENDED THAT THE WORDS OF THE ECONOMY ACT REPEALING
"OTHER ALLOWANCES" AND "LAWS ...  PERTAINING TO YEARLY RENEWABLE TERM
INSURANCE" ARE BROAD ENOUGH TO INCLUDE A REPEAL OF AUTOMATIC
INSURANCE.  WITH THIS CONTENTION WE CANNOT AGREE. 

REPEALS BY IMPLICATION ARE NOT FAVORED.  A LAW IS NOT TO BE CONSTRUED
AS IMPLIEDLY REPEALING A PRIOR LAW UNLESS NO OTHER REASONABLE
CONSTRUCTION CAN BE APPLIED.  FN6 

WHILE THE ECONOMY ACT EXPLICITLY REPEALED ALL LAWS WHICH GRANTED "...
MEDICAL OR HOSPITAL TREATMENT, DOMICILIARY CARE, COMPENSATION AND
OTHER ALLOWANCES, PENSION, DISABILITY ALLOWANCE, ...  RETIREMENT PAY
...  AND ALL LAWS GRANTING OR PERTAINING TO YEARLY RENEWABLE TERM
INSURANCE ...," CONGRESS DID NOT INCLUDE "AUTOMATIC INSURANCE" IN THIS
DETAILED LIST OF BENEFITS REPEALED. 

THE WORDS "OTHER ALLOWANCES" HAVE A WELL SETTLED MEANING. 
"ALLOWANCES" IN VETERANS' LEGISLATION, IN THE VETERANS' BUREAU AND IN
ARMY TERMINOLOGY  FN7  HAS NEVER BEEN CONSIDERED SYNONYMOUS WITH, OR
INCLUSIVE OF, AUTOMATIC INSURANCE; THIS WORD ORDINARILY REFERS TO EXTRA
AND SPECIAL ITEMS (IN ADDITION TO REGULAR COMPENSATION) SUCH AS NURSE
HIRE, TRAINING PAY, AND "TRAVEL PAY AND ALLOWANCES."  FN8 

THE WORDS "ALL LAWS GRANTING OR PERTAINING TO YEARLY RENEWABLE TERM
INSURANCE" REFER ONLY TO LAWS WHICH ARE ENACTMENTS UPON THE SUBJECT OF
YEARLY RENEWABLE TERM INSURANCE.  SECTION 401 DID NOT GRANT YEARLY
RENEWABLE TERM INSURANCE NOR IS IT AN ENACTMENT UPON THAT SUBJECT.  IT
PROVIDED FOR THOSE SOLDIERS WHO DIED IN SERVICE BEFORE THEY HAD AN
OPPORTUNITY TO PURCHASE YEARLY RENEWABLE TERM INSURANCE OR ANY OTHER
TYPE OF INSURANCE.  THIS LAW, THEREFORE, DID NOT PERTAIN TO YEARLY
RENEWABLE TERM INSURANCE BUT TO PROTECTION FOR SOLDIERS WHO NEVER HAD
AND NEVER COULD OBTAIN YEARLY RENEWABLE TERM INSURANCE. 

IT IS TO BE REMEMBERED THAT AUTOMATIC INSURANCE APPLIED TO THAT
PARTICULAR GROUP OF AMERICAN SOLDIERS WHO EITHER WERE KILLED, DIED, OR
BECAME WHOLLY AND PERMANENTLY INCAPACITATED BEFORE THEY HAD A
REASONABLE OPPORTUNITY TO OBTAIN INSURANCE OF ANY KIND.  IT MAY BE THAT
CONGRESS DID NOT BELIEVE IT PROPER TO ECONOMIZE AT THE EXPENSE OF THOSE
VETERANS WHO CAME OUT OF THE ARMY WITH HEALTH COMPLETELY DESTROYED OR
TO THE DETRIMENT OF THE BENEFICIARIES OF SOLDIERS WHO LOST THEIR LIVES
IN SERVICE WITHOUT A REASONABLE OPPORTUNITY TO APPLY FOR INSURANCE. 

CERTAINLY THE REASON WHICH PROMPTED THE PASSAGE OF THE EXPRESS
PROVISIONS OF SEC. 401 IS SUCH THAT, IN THE ABSENCE OF SUBSEQUENT
LEGISLATION EQUALLY EXPRESS, THEY ARE NOT OVERTHROWN BY MERE INFERENCE
OR IMPLICATION.  FN9  ONLY CLEAR AND UNEQUIVOCAL LANGUAGE WOULD JUSTIFY
A CONCLUSION THAT BENEFITS, PROVIDED BY A GRATEFUL GOVERNMENT BECAUSE
OF DEATH AND PERMANENT INCAPACITY OF ITS SOLDIERS, ARE TO BE WHOLLY
WITHDRAWN FOR REASONS OF ECONOMY.  SPECIAL PROVISIONS BENEFITING EITHER
SOLDIERS WHO BECAME INCURABLY HELPLESS IN THE ARMY OR THE DEPENDENTS OF
SOLDIERS WHO DIED OR WERE KILLED IN THE SERVICE OF THEIR COUNTRY CANNOT
JUSTIFIABLY BE REPEALED BY IMPLICATION.  FN10  THERE IS NO
IRRECONCILABLE CONFLICT BETWEEN SEC. 401 AND THE ECONOMY ACT AND EFFECT
CAN REASONABLY BE GIVEN TO BOTH.  FN11  THE JUDGMENT OF THE COURT OF
APPEALS IS THEREFORE AFFIRMED. 

FN1  SEC. 17, ACT OF MARCH 20, 1933, C. 3, 48 STAT. 11:  "ALL PUBLIC
LAWS GRANTING MEDICAL OR HOSPITAL TREATMENT, DOMICILIARY CARE,
COMPENSATION, AND OTHER ALLOWANCES, PENSION, DISABILITY ALLOWANCE, OR
RETIREMENT PAY TO VETERANS AND THE DEPENDENTS OF VETERANS OF  ...  THE
WORLD WAR, ...  ARE HEREBY REPEALED, AND ALL LAWS GRANTING OR
PERTAINING TO YEARLY RENEWABLE TERM INSURANCE ARE HEREBY REPEALED, BUT
PAYMENTS IN ACCORDANCE WITH SUCH LAWS SHALL CONTINUE TO THE LAST DAY OF
THE THIRD CALENDAR MONTH FOLLOWING THE MONTH DURING WHICH THIS ACT IS
ENACTED...." 

FN2  SEC. 401 OF THE WAR RISK INSURANCE ACT AS AMENDED DEC. 24, 1919,
C. 16, 41 STAT. 371, 375: "...  ANY PERSON IN THE ACTIVE SERVICE ON OR
AFTER THE 6TH DAY OF APRIL, 1917, AND BEFORE THE 11TH DAY OF NOVEMBER,
1918, WHO, WHILE IN SUCH SERVICE, AND BEFORE THE EXPIRATION OF ONE
HUNDRED AND TWENTY DAYS AFTER OCTOBER 15, 1917, OR ONE HUNDRED AND
TWENTY DAYS AFTER ENTRANCE INTO OR EMPLOYMENT IN THE ACTIVE SERVICE,
BECOMES OR HAS BECOME TOTALLY AND PERMANENTLY DISABLED, OR DIES OR HAS
DIED, WITHOUT HAVING APPLIED FOR INSURANCE, SHALL BE DEEMED TO HAVE
APPLIED FOR AND TO HAVE BEEN GRANTED INSURANCE, PAYABLE TO SUCH PERSON
DURING HIS LIFE IN MONTHLY INSTALLMENTS OF $25 EACH;...  IF HE SHALL
DIE EITHER BEFORE HE SHALL HAVE RECEIVED ANY OF SUCH MONTHLY
INSTALLMENTS OR BEFORE HE SHALL HAVE RECEIVED TWO HUNDRED AND FORTY OF
SUCH MONTHLY INSTALLMENTS, THEN $25 PER MONTH SHALL BE PAID TO  ...
HIS CHILD  ...:  PROVIDED, HOWEVER, THAT NO MORE THAN TWO HUNDRED AND
FORTY OF SUCH MONTHLY INSTALLMENTS,  ...  SHALL BE SO PAID." 

FN3  14 F.SUPP.  132. 

FN4  89 F.(2D) 572. 

FN5  302 U.S. 673. 

FN6  UNITED STATES V. YUGINOVICH, 256 U.S. 450; UNITED STATES V.
NOCE, 268 U.S. 613; SEE, COPE V. COPE, 137 U.S. 682. 

FN7  SEE, AS TO MEANING OF "ALLOWANCES," JONES V. UNITED STATES, 60
CT. CLS. 552, 567; UNITED STATES V. LANDERS, 92 U.S. 77. 

FN8  AN ILLUSTRATION OF THE MEANING OF "ALLOWANCES" APPEARS IN THAT
WIT:  "THAT, SUBJECT TO SUCH REGULATIONS AS THE PRESIDENT MAY
PRESCRIBE, ALLOWANCES MAY BE GRANTED FOR BURIAL AND FUNERAL EXPENSES
AND TRANSPORTATION OF THE BODIES (INCLUDING PREPARATION OF THE BODIES)
OF DECEASED VETERANS OF ANY WAR TO THE PLACES OF BURIAL THEREOF IN A
SUM NOT TO EXCEED $107 IN ANY ONE CASE." 

FN9  ROSENCRANS V. UNITED STATES, 165 U.S. 257. 

FN10  CF. UNITED STATES V. GREATHOUSE, 166 U.S. 601. 

FN11  CF. WASHINGTON V. MILLER, 235 U.S. 422, 428; SEE, ALSO, POSADAS
V. NATIONAL CITY BANK, 296 U.S. 503 ET SEQ. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.  OR DECISION OF THIS CASE. 
..END :























LANASA FRUIT CO. V. INSURANCE CO., 302 U.S. 556 


NO. 57.  ARGUED DECEMBER 10, 1937.  - DECIDED JANUARY 10, 1938.  - 89
F.(2D) 545, REVERSED. 


1.  IN DECIDING THIS CASE CONCERNING THE LIABILITY OF AN INSURER FOR
LOSS OF A CARGO OF FRUIT, BOTH COURTS BELOW ASSUMED THAT THE FRUIT WAS
IN SOUND CONDITION WHEN SHIPPED AND WOULD HAVE BEEN MERCHANTABLE AT THE
END OF THE VOYAGE HAD IT NOT BEEN FOR THE STRANDING OF THE SHIP AND
CONSEQUENT DELAY.  HELD THAT THIS COURT, IN REVIEWING THE QUESTION
DECIDED, WILL MAKE THE SAME ASSUMPTIONS.  P. 559. 

2.  APPLICATION OF A GENERAL COVERAGE CLAUSE OF A MARINE INSURANCE
POLICY HELD UNAFFECTED BY A RIDER ATTACHED FOR AN ADDITIONAL PREMIUM,
AFTER THE POLICY HAD BEEN LONG IN EFFECT, BUT CANCELED BEFORE THE
OCCURRENCE OF THE LOSS.  P. 560. 

THE RIDER COVERED LOSSES NOT EMBRACED IN THE MARINE PERILS AGAINST
WHICH THE POLICY INSURED AND IT ALSO COVERED LOSSES WHICH WERE ALREADY
COVERED BY THE POLICY, AND THERE WAS ROOM FOR DIFFERENCE OF OPINION AS
TO EXACTLY HOW FAR THE RIDER OVERLAPPED. 

3.  STRANDING OF THE SHIP IS A PERIL OF THE SEA.  P. 561. 

4.  THE DOCTRINE OF PROXIMATE CAUSE IS APPLIED STRICTLY IN MARINE
INSURANCE CASES.  P. 562. 

5.  A VESSEL CARRYING A CARGO OF BANANAS STRANDED EN VOYAGE.  THE
STRANDING CAUSED DELAY, WITH THE RESULT THAT THE FRUIT, WHICH WAS SOUND
WHEN SHIPPED AND, BUT FOR THE DELAY, WOULD HAVE BEEN MARKETABLE UPON
ARRIVAL AT DESTINATION, WAS SPOILED BY DECAY - A TOTAL LOSS.  HELD THAT
THE STRANDING WAS THE PROXIMATE CAUSE OF THE LOSS, AND THAT THE LOSS
WAS COVERED BY INSURANCE AGAINST PERILS OF THE SEA.  P. 562. 

6.  IN MARINE INSURANCE CASES, THE PROXIMATE CAUSE OF LOSS IS THE
EFFICIENT CAUSE, NOT NECESSARILY THAT CAUSE, IN A CHAIN OR SERIES,
WHICH WAS NEAREST IN TIME TO THE EVENT.  P. 562. 

LANASA FRUIT STEAMSHIP & IMPORTING CO. V. UNIVERSAL INSURANCE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, POST, P. 664, TO REVIEW THE AFFIRMANCE OF A JUDGMENT IN
FAVOR OF THE RESPONDENT INSURANCE COMPANY, IN AN ACTION ON A POLICY OF
MARINE INSURANCE.  THE CASE HAD BEEN REMOVED TO THE DISTRICT COURT FROM
THE COURT OF COMMON PLEAS OF BALTIMORE CITY. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS ACTION WAS BROUGHT UPON A POLICY OF MARINE INSURANCE.  JUDGMENT
FOR RESPONDENT WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS, 89 F.(2D)
545, AND CERTIORARI WAS GRANTED. 

PETITIONER WAS THE OWNER OF A CARGO OF BANANAS ABOARD THE NORWEGIAN
STEAMSHIP "SMARAGD."  WHILE PROCEEDING UP CHESAPEAKE BAY TO BALTIMORE
ON JULY 21, 1935, THE VESSEL STRANDED AND BEFORE SHE COULD BE FLOATED
THE ENTIRE CARGO OF BANANAS BECAME OVERRIPE AND ROTTED CAUSING A TOTAL
LOSS.  PETITIONER HELD A FLOATING POLICY OF INSURANCE WHICH HAD BEEN
ISSUED BY RESPONDENT ON JUNE 23, 1933.  THE GENERAL COVERAGE CLAUSE OF
THE POLICY EMBRACED PERILS OF THE SEA. 

TO THE DECLARATION SETTING FORTH THESE FACTS AND CLAIMING THAT THE
LOSS WAS WITHIN THE COVERAGE OF THE POLICY, RESPONDENT FILED FOUR
PLEAS, THE FIRST TWO PLEADING THE GENERAL ISSUE AND THE TWO OTHERS
BEING SPECIAL PLEAS.  PETITIONER JOINED ISSUE ON THE FIRST AND SECOND
PLEAS AND DEMURRED TO THE THIRD AND FOURTH.  THE DISTRICT COURT
OVERRULED THE DEMURRER TO THE THIRD PLEA AND, AS THAT DECISION WAS
CONSIDERED BY THE PARTIES AND THE COURT TO BE CONCLUSIVE OF THE ISSUE,
FINAL JUDGMENT WAS ENTERED FOR RESPONDENT. 

THE THIRD PLEA, THUS SUSTAINED, SET FORTH A RIDER WHICH, FOR AN
ADDITIONAL PREMIUM, HAD BEEN ADDED TO THE POLICY ON APRIL 4, 1934, AND
HAD BEEN CANCELED ON JANUARY 25, 1935, BEFORE THE LOSS OCCURRED.  THE
RIDER AMENDED THE POLICY SO AS TO PROVIDE THAT THE COVERAGE SHOULD BE
"FREE OF PARTICULAR AVERAGE UNLESS THE VESSEL BE STRANDED, SUNK,
BURNED, ON FIRE OR IN COLLISION, IN ANY, ALL OR SEVERAL OF WHICH EVENTS
THE INSURERS ARE LIABLE FOR SUCH LOSS BY DECAY, INJURY OR DAMAGE TO THE
FRUIT AS IS OCCASIONED THEREBY OR OCCURS DURING OR IN CONSEQUENCE OF
DELAY RESULTING THEREFROM."  THE INSURERS ALSO ASSUMED LIABILITY FOR
SUCH LOSS IN CONSEQUENCE OF DELAY RESULTING FROM BREAKAGE OF SHAFT,
LOSS OF BLADES FROM PROPELLER, AND DERANGEMENT OR BREAKAGE OF MACHINERY
OR RUDDER AND/OR STERN POST, "WHETHER OR NOT THE VESSEL BE STRANDED,
SUNK, BURNED OR IN COLLISION" PROVIDED THAT THE LOSS AMOUNTED TO TEN
PER CENT. AFTER DEDUCTING FIVE PER CENT. FOR ORDINARY LOSS. 

ON THE CANCELLATION OF THE RIDER IT WAS AGREED THAT THE POLICY SHOULD
HAVE THE SAME COVERAGE AS PRIOR THERETO, AND THE PREMIUM RATE WAS
REDUCED FROM 60 CENTS TO THE ORIGINAL RATE OF 25 CENTS ON THE $100 OF
RISK.  89 F.(2D) P. 546. 

IN AFFIRMING THE JUDGMENT, THE CIRCUIT COURT OF APPEALS OBSERVED THAT
THE JUDGMENT HAD BEEN ENTERED UPON THE PLEADINGS AND THAT PETITIONER
HAD CONCEDED THAT ITS RIGHT TO RECOVER DEPENDED UPON THE CONSTRUCTION
OF THE POLICY.  89 F.(2D) PP. 545, 546.  THE APPELLATE COURT THEN
EXAMINED THE POLICY AND AFTER A REVIEW OF AUTHORITIES IN THIS COUNTRY
AND IN ENGLAND HELD THAT THE LOSS WAS NOT WITHIN THE GENERAL COVERAGE
CLAUSE RELATING TO PERILS OF THE SEA.  THE COURT IN CONCLUDING ITS
OPINION REFERRED TO THE RIDER AS SHOWING THAT THE PARTIES HAD
INTERPRETED THAT CLAUSE IN THE SAME WAY.  ID., P. 549.  WE GRANTED
CERTIORARI BECAUSE OF THE IMPORTANCE OF THE PRINCIPAL QUESTION THUS
DETERMINED BY THE COURT OF APPEALS, A QUESTION WHICH HAD NOT BEEN
DECIDED BY THIS COURT AND AS TO WHICH THE DECISIONS OF OTHER COURTS
WERE SAID TO BE IN CONFLICT. 

WE ARE MET BY TWO PRELIMINARY QUESTIONS.  THE FIRST OF THESE IS WITH
RESPECT TO THE SUFFICIENCY OF THE DECLARATION.  IT IS SUGGESTED THAT
THE DECLARATION DOES NOT ALLEGE THAT THE BANANAS WERE SHIPPED IN SOUND
CONDITION AND THAT THEY WOULD HAVE BEEN MERCHANTABLE AT THE END OF A
NORMAL VOYAGE, AND THAT THERE IS NO ALLEGATION AS TO THE DURATION OF
THE DELAY.  IT DOES NOT APPEAR THAT THESE QUESTIONS WERE RAISED IN THE
DISTRICT COURT AND THEY WERE NOT DEALT WITH BY THE COURT OF APPEALS,
WHICH EVIDENTLY ASSUMED THE SUFFICIENCY OF THE DECLARATION TO PRESENT
THE MAIN QUESTION AS TO THE INTERPRETATION OF THE GENERAL COVERAGE
CLAUSE.  BOTH COURTS BELOW HAVE DECIDED THE CASE UPON THE ASSUMPTION
THAT THE FRUIT WAS IN SOUND CONDITION WHEN SHIPPED AND WOULD HAVE BEEN
MERCHANTABLE AT THE END OF THE VOYAGE HAD IT NOT BEEN FOR THE STRANDING
AND THE CONSEQUENT DELAY.  IN VIEW OF THIS COURSE OF PROCEEDINGS WE
MAKE THE SAME ASSUMPTION.  IF ANY QUESTION AS TO THE CONDITION OF THE
CARGO OR LENGTH OF THE DELAY AND ITS EFFECT HAD BEEN PRESENTED IN THE
TRIAL COURT, IT MIGHT HAVE BEEN MET BY AMENDMENT OF THE DECLARATION AND
THE ISSUE COULD HAVE BEEN TRIED; AND IF THE MAIN QUESTION, UPON THE
ASSUMPTION STATED, HAS BEEN WRONGLY DECIDED AND THE CASE IS REMANDED TO
THE DISTRICT COURT, THERE WILL STILL BE OPPORTUNITY TO TRY ANY OTHER
ISSUES OF FACT OR LAW WHICH MAY PROPERLY BE PRESENTED. 

THE OTHER PRELIMINARY QUESTION IS WITH RESPECT TO THE EFFECT OF THE
RIDER ABOVE MENTIONED.  WE DO NOT REGARD THAT ENDORSEMENT AS EITHER
CONTROLLING OR PERSUASIVE.  MANIFESTLY IT DID NOT AFFECT THE
APPLICATION OF THE GENERAL COVERAGE CLAUSE.  THAT CLAUSE HAD BEEN IN
EFFECT FOR A LONG PERIOD BEFORE THE RIDER AND BY EXPRESS AGREEMENT THAT
CLAUSE REMAINED IN EFFECT AFTER THE RIDER WAS CANCELED.  THE RIDER
COVERED LOSSES NOT EMBRACED IN THE MARINE PERILS AGAINST WHICH THE
POLICY INSURED AND IT ALSO COVERED LOSSES WHICH WERE ALREADY COVERED BY
THE POLICY, AND THERE WAS ROOM FOR DIFFERENCE OF OPINION AS TO EXACTLY
HOW FAR THE RIDER OVERLAPPED.  THE ACTUAL VIEWS OF THE PARTIES WHEN THE
RIDER WAS OBTAINED AND THE REASONS FOR ITS CANCELLATION ARE NOT SHOWN
WITH ANY DEFINITENESS.  FOR ALL THAT APPEARS THE INSURED MAY HAVE BEEN
ADVISED AND MAY HAVE ASSUMED THAT THE COVERAGE CLAUSE OF THE POLICY
GAVE PROTECTION IN SUCH A CASE AS IS HERE INVOLVED AND MAY NOT HAVE
DESIRED TO CONTINUE TO PAY THE ADDITIONAL PREMIUM FOR THE OTHER LOSSES
DESCRIBED.  WE ARE NOT CALLED UPON TO SPECULATE AS TO THE STATE OF MIND
OF THE INSURED'S OFFICERS AND ONE ASSERTED AMBIGUITY IS NOT TO BE CURED
BY ANOTHER.  IF THE GENERAL COVERAGE CLAUSE PERMITS RECOVERY, WE SEE
NOTHING TO DEFEAT IT IN WHAT WAS DONE IN CONNECTION WITH THE RIDER. 

PETITIONER THUS STATES THE MAIN QUESTION BROADLY: DOES THE GENERAL
CLAUSE OF THE MARINE CARGO INSURANCE POLICY, INSURING FOR LOSS CAUSED
BY PERILS OF THE SEA, COVER A LOSS WHERE A MARINE PERIL, VIZ.
STRANDING, HAS SO DELAYED THE VOYAGE THAT THE CARGO HAS BECOME A TOTAL
LOSS? 

RESPONDENT CONTENDS (1) THAT DETERIORATION OF PERISHABLE CARGO CAUSED
THROUGH INHERENT VICE WHILE THE VESSEL IS DELAYED BY A SEA PERIL, IS
NOT, WITHOUT MORE, COVERED UNDER A MARINE POLICY WHICH DOES NOT
EXPRESSLY INSURE AGAINST SUCH DETERIORATION; AND (2) THAT IN ORDER TO
RECOVER FOR SUCH DETERIORATION IT MUST BE SHOWN THAT THE ADVENTURE WAS
NOT MERELY DELAYED BUT FRUSTRATED BY REASON OF THE VESSEL'S FORCED
DEPARTURE FROM THE COURSE OF HER VOYAGE, AS, FOR EXAMPLE, WHERE THE
VESSEL HAS PUT INTO A PORT OF DISTRESS AND REMAINED THERE FOR A PERIOD
WHICH CONSTITUTED A VIRTUAL ABANDONMENT OR FRUSTRATION OF THE VOYAGE. 

IN CONSIDERING THESE CONTENTIONS, WE START WITH THE FACT THAT THE
VESSEL, WHILE PROCEEDING UP CHESAPEAKE BAY, STRANDED.  THAT IS ALLEGED
AND CONCEDED.  STRANDING IS A PERIL OF THE SEA.  LIVERPOOL & GREAT
WESTERN STEAM CO. V. PHENIX INSURANCE CO., 129 U.S. 397, 438; RICHELIEU
& ONTARIO NAVIGATION CO. V. BOSTON MARINE INSURANCE CO., 136 U.S. 408,
421; ARNOULD ON MARINE INSURANCE, 11TH ED., SEC. 816; WINTER ON MARINE
INSURANCE, 2D ED., P. 156.  LOSS THROUGH STRANDING WAS WITHIN THE
COVERAGE OF THE POLICY.  THIS, AS THE COURT BELOW OBSERVED, WAS
EXPRESSLY RECOGNIZED IN THE WARRANTIES AGAINST PARTICULAR AVERAGE IN
WHICH LOSS BY STRANDING WAS EXCEPTED.  89 F.(2D) PP. 546, 547.  AND IT
WAS THE STRANDING WHICH CAUSED THE DELAY.  THE CASE IS NOT ONE OF THE
MERE LENGTHENING OF A VOYAGE DUE TO THE ORDINARY VICISSITUDES OF WIND
AND WAVE AGAINST WHICH THE UNDERWRITER DOES NOT INSURE, JORDAN V.
WARREN INSURANCE CO., 1 STORY, 342, 352; FED. CAS. NO. 7524, AND WE ARE
NOT CALLED UPON TO DETERMINE IN WHAT CIRCUMSTANCES OTHER THAN THOSE NOW
PRESENTED DELAY MAY BE CONSIDERED TO BE DUE TO A PERIL OF THE SEA
WITHIN THE MEANING OF THE POLICY. 

THE CARGO WAS PERISHABLE FRUIT.  RESPONDENT INSISTS THAT ITS DECAY
WAS CAUSED BY INHERENT VICE WHICH BEGAN TO OPERATE AS SOON AS THE FRUIT
WAS PICKED.  BUT, ALTHOUGH PERISHABLE, THE CARGO WAS INSURED FOR THE
VOYAGE AGAINST SEA PERILS AND THE SOLE QUESTION IS WHETHER A SEA PERIL
CAUSED THE LOSS.  AS WE HAVE SAID, WE MUST ASSUME FOR THE PRESENT
PURPOSE, IN VIEW OF THE WAY IN WHICH THE CASE WAS PRESENTED AND
DETERMINED BELOW, THAT THE FRUIT WAS SOUND WHEN SHIPPED AND WOULD HAVE
BEEN MERCHANTABLE ON ARRIVAL AFTER A NORMAL VOYAGE, AND THAT HAD IT NOT
BEEN FOR THE DELAY DUE TO THE STRANDING OF THE VESSEL, THE LOSS WOULD
NOT HAVE OCCURRED DESPITE THE PERISHABLE NATURE OF THE CARGO. 

WE ARE NOT IMPRESSED BY THE ARGUMENT THAT TO PERMIT RECOVERY IT MUST
APPEAR THAT THE ADVENTURE WAS NOT MERELY DELAYED BUT THAT IT WAS
FRUSTRATED THROUGH A FORCED DEPARTURE OF THE VESSEL FROM THE COURSE OF
HER VOYAGE AND THE PUTTING INTO A PORT OF DISTRESS.  SO FAR AS THE
CARGO IN QUESTION WAS CONCERNED, THE ADVENTURE WAS FRUSTRATED BY THE
STRANDING AND THE CARGO BECAME A TOTAL LOSS BEFORE THE VESSEL COULD BE
FLOATED.  THAT LOSS WAS JUST AS COMPLETE AS IF THE VESSEL HAD BEEN
COMPELLED TO PUT INTO A PORT AND THE VOYAGE HAD THEN BEEN ABANDONED. 

THE SOLE QUESTION IS WHETHER IN THESE CIRCUMSTANCES THE STRANDING
SHOULD BE REGARDED AS THE PROXIMATE CAUSE OF THE LOSS.  RESPONDENT
CONTENDS THAT DECAY OR INHERENT VICE WAS THE PROXIMATE CAUSE.  IT IS
TRUE THAT THE DOCTRINE OF PROXIMATE CAUSE IS APPLIED STRICTLY IN CASES
OF MARINE INSURANCE.  BUT IN THAT CLASS OF CASES, AS WELL AS IN OTHERS,
THE PROXIMATE CAUSE IS THE EFFICIENT CAUSE AND NOT A MERELY INCIDENTAL
CAUSE WHICH MAY BE NEARER IN TIME TO THE RESULT.  INSURANCE COMPANY V.
BOON, 95 U.S. 117, 130; ARNOULD ON INSURANCE, 11TH ED., SEC. 783. 

THE SUBJECT WAS DISCUSSED IN AN ILLUMINATING WAY BY LORD SHAW IN HIS
JUDGMENT IN LEYLAND SHIPPING CO. V. NORWICH UNION FIRE INSURANCE
SOCIETY, (1918) A.C. 350, 368-371.  HE SAID (P. 369): 

"TO TREAT PROXIMA CAUSA AS THE CAUSE WHICH IS NEAREST IN TIME IS OUT
OF THE QUESTION.  CAUSES ARE SPOKEN OF AS IF THEY WERE AS DISTINCT FROM
ONE ANOTHER AS BEADS IN A ROW OR LINKS IN A CHAIN, BUT - IF THIS
METAPHYSICAL TOPIC HAS TO BE REFERRED TO - IT IS NOT WHOLLY SO.  THE
CHAIN OF CAUSATION IS A HANDY EXPRESSION, BUT THE FIGURE IS
INADEQUATE.  CAUSATION IS NOT A CHAIN, BUT A NET.  AT EACH POINT
INFLUENCES, FORCES, EVENTS, PRECEDENT AND SIMULTANEOUS, MEET; AND THE
RADIATION FROM EACH POINT EXTENDS INFINITELY.  AT THE POINT WHERE THESE
VARIOUS INFLUENCES MEET IT IS FOR THE JUDGMENT AS UPON A MATTER OF FACT
TO DECLARE WHICH OF THE CAUSES THUS JOINED AT THE POINT OF EFFECT WAS
THE PROXIMATE AND WHICH WAS THE REMOTE CAUSE. 

"WHAT DOES 'PROXIMATE' HERE MEAN?  TO TREAT PROXIMATE CAUSE AS IF IT
WAS THE CAUSE WHICH IS PROXIMATE IN TIME IS, AS I HAVE SAID, OUT OF THE
QUESTION.  THE CAUSE WHICH IS TRULY PROXIMATE IS THAT WHICH IS
PROXIMATE IN EFFICIENCY.  THAT EFFICIENCY MAY HAVE BEEN PRESERVED
ALTHOUGH OTHER CAUSES MAY MEANTIME HAVE SPRUNG UP WHICH HAVE YET NOT
DESTROYED IT, OR TRULY IMPAIRED IT, AND IT MAY CULMINATE IN A RESULT OF
WHICH IT STILL REMAINS THE REAL EFFICIENT CAUSE TO WHICH THE EVENT CAN
BE ASCRIBED." 

THERE, IN A POLICY INSURING A SHIP, THERE WAS A WARRANTY OF EXCEPTION
IN CASE OF HOSTILITIES OR WARLIKE OPERATIONS, AND THE QUESTION WAS
WHETHER THE LOSS OF THE VESSEL FELL WITHIN THE EXCEPTION.  THE VESSEL
WAS TORPEDOED AND SUSTAINED SEVERE INJURIES BUT SUCCEEDED IN MAKING THE
OUTER HARBOR OF THE PORT OF HAVRE.  NOTWITHSTANDING ALL EFFORTS BY
PUMPING AND OTHERWISE, SHE BUMPED, BROKE HER BACK, AND SANK.  IT WAS
CONTENDED THAT SHE PERISHED BY A PERIL OF THE SEA BECAUSE SEA WATER
ENTERED THE GASH IN HER SIDE WHICH THE TORPEDO MADE.  THE ENTRY OF THE
SEA WATER WAS INDEED A PERIL OF THE SEA AND WAS PROXIMATE IN TIME TO
THE SINKING.  BUT AS "PROXIMATE CAUSE IS AN EXPRESSION REFERRING TO THE
EFFICIENCY AS AN OPERATING FACTOR UPON THE RESULT" IT WAS HELD THAT
"THE REAL EFFICENT CAUSE" OF THE SINKING OF THE VESSEL WAS THAT SHE WAS
TORPEDOED AND HENCE THAT THE LOSS WAS WITHIN THE EXCEPTION. 

IN THE LEYLAND CASE THE HOUSE OF LORDS APPROVED THE DECISION OF THE
COURT OF APPEAL IN REISCHER V. BORWICK (1894) 2 Q.B. 548, WHERE THE
POLICY COVERED COLLISION WITH ANY OBJECT BUT EXCLUDED PERILS OF THE
SEA.  THE SHIP STRUCK A SNAG WHICH MADE A HOLE IN HER.  SHE WAS
ANCHORED AND THE LEAK WAS TEMPORARILY PLUGGED.  THEN, WHILE SHE WAS
BEING TOWED TOWARDS THE NEAREST DOCK FOR REPAIR, THE WATER BURST
THROUGH THE HOLE AND SHE HAD TO BE RUN AGROUND AND ABANDONED.  THE
CONTENTION WAS THAT THE PROXIMATE CAUSE OF THE DAMAGE WAS THE EXCEPTED
MARINE PERIL OF THE INRUSH OF THE SEA WATER.  BUT THE COURT OF APPEAL
HELD THAT THE PROXIMATE CAUSE WAS THE COLLISION WITH THE SNAG.    THE
SAME PRINCIPLE APPLIES ALTHOUGH WITHIN THE NETWORK OF CAUSATION THERE
MAY BE FOUND THE OPERATION OF NATURAL FORCES TO WHICH A DISASTER,
WITHIN THE COVERAGE OF THE POLICY, HAS GIVEN PLAY.  THE DECISION OF
JUSTICE STORY IN MAGOUN V. NEW ENGLAND MARINE INSURANCE CO., 1 STORY
157; FED. CAS. NO. 8961, IS AN ILLUSTRATION.  IN THAT CASE THE QUESTION
WAS WHETHER THE LOSS WAS DUE TO A RESTRAINT AND DETAINMENT OF
GOVERNMENT WITHIN THE WORDS OF A POLICY INSURING THE VESSEL AND
FREIGHT.  IT APPEARED THAT THERE HAD BEEN AN ARREST AND DETAINMENT BY
THE AUTHORITIES OF NEW GRANADA; THAT THE VESSEL HAD BEEN RESTORED, BUT
THAT, WHEN RESTORED, IT WAS FOUND, FROM HER LONG EXPOSURE TO THE
WEATHER IN A HOT CLIMATE, IN AN OPEN ROADSTEAD, THAT SHE HAD BEEN SO
DAMAGED THAT SHE COULD NOT PERFORM THE VOYAGE WITHOUT GREAT REPAIRS
WHICH WOULD COST MORE THAN THE VESSEL WAS WORTH; THAT HIDES BELONGING
TO THE CARGO HAD BECOME ROTTEN AND WERE THROWN OVERBOARD AND THAT NO
OTHER VESSEL COULD BE FOUND TO CARRY THE RESIDUE OF THE CARGO TO
DESTINATION.  THE VESSEL WAS ACCORDINGLY ABANDONED TO THE UNDERWRITERS,
AND JUSTICE STORY HELD THAT THE ABANDONMENT WAS GOOD AND THE
UNDERWRITERS WERE LIABLE FOR A TOTAL LOSS.  HE SAID (P. 164): 

"THE ARGUMENT IS, THAT THE INJURY TO THE VESSEL, BY THE LONG DELAY
AND EXPOSURE TO THE CLIMATE, WAS THE IMMEDIATE CAUSE OF THE LOSS, AND
THE SEIZURE AND DETAINMENT THE REMOTE CAUSE ONLY; AND THAT, THEREFORE,
THE RULE APPLIES, CAUSA PROXIMA, NON REMOTA, SPECTATUR, AND THE
UNDERWRITERS ARE NOT LIABLE FOR INJURY BY MERE WEAR AND TEAR, OR BY
DELAYS IN THE VOYAGE, OR BY WORMS, OR BY EXPOSURE TO THE CLIMATE.  BUT
IT APPEARS TO ME, THAT THIS IS NOT A CORRECT EXPOSITION OF THE RULE. 
ALL THE CONSEQUENCES NATURALLY FLOWING FROM THE PERIL INSURED AGAINST,
OR INCIDENT THERETO, ARE PROPERLY ATTRIBUTABLE TO THE PERIL ITSELF." 

IN SUPPORT, JUSTICE STORY REFERRED TO THE DECISION OF THE COURT IN
PETERS V. WARREN INSURANCE CO., 14 PET. 99, IN WHICH HE DELIVERED THE
OPINION.  IN THAT CASE HE PUT THE FOLLOWING ILLUSTRATION (P. 110): 

"SUPPOSE A PERISHABLE CARGO IS GREATLY DAMAGED BY THE PERILS OF THE
SEA, AND IT SHOULD, IN CONSEQUENCE THEREOF, LONG AFTERWARDS, AND BEFORE
ARRIVAL AT THE PORT OF DESTINATION, BECOME GRADUALLY SO PUTRESCENT AS
TO BE REQUIRED TO BE THROWN OVERBOARD FOR THE SAFETY OF THE CREW:  THE
IMMEDIATE CAUSE OF THE LOSS WOULD BE THE ACT OF THE MASTER AND CREW;
BUT THERE IS NO DOUBT THAT THE UNDERWRITERS WOULD BE LIABLE FOR A TOTAL
LOSS, UPON THE GROUND THAT THE OPERATIVE CAUSE WAS THE PERILS OF THE
SEA." 

AND IN THE SAME CASE, JUSTICE STORY TOOK OCCASION TO OBSERVE THAT IF
THERE BE ANY COMMERCIAL CONTRACT, WHICH, MORE THAN ANY OTHER, "REQUIRES
THE APPLICATION OF SOUND COMMON SENSE AND PRACTICAL REASONING IN THE
EXPOSITION OF IT," IT IS "CERTAINLY A POLICY OF INSURANCE."  ID., P.
109. 

IF WE APPLY THIS PRINCIPLE OF THE "REAL EFFICIENT CAUSE" TO THE
INSTANT CASE, IT CAN HARDLY BE DOUBTED THAT UPON THE FACTS ASSUMED THE
LOSS WOULD BE WITHIN THE COVERAGE OF THE POLICY.  INDEED THIS IS NOT
STRONGLY CONTESTED, BUT IT IS INSISTED THAT THE CASE IS CONTROLLED BY
CERTAIN PRECEDENTS TO WHICH WE SHOULD GIVE HEED IN DEALING WITH AN
ANCIENT FORM OF WORDS.  THESE PRECEDENTS ARE FOUND IN CERTAIN ENGLISH
CASES TO WHICH THE CIRCUIT COURT OF APPEALS REFERRED.  THE COURT
RECOGNIZED THAT A NUMBER OF AMERICAN CASES HAD TAKEN A DIFFERENT VIEW
BUT THOUGHT THAT, IN THE ABSENCE OF A CONTRARY DECISION BY THIS COURT
OR ANY FEDERAL COURT, THE CITED ENGLISH CASES SHOULD BE FOLLOWED IN THE
VIEW THAT IN THE FIELD OF MARINE INSURANCE "IT IS HIGHLY DESIRABLE THAT
OUR DECISIONS BE KEPT IN HARMONY WITH THOSE OF ENGLAND."  89 F.(2D) P.
549. 

REFERENCE IS MADE TO THE CASE OF TAYLOR V. DUNBAR, L.R. 4 C.P. 206. 
THERE MEAT SHIPPED AT HAMBURG FOR LONDON WAS DELAYED ON THE VOYAGE BY
TEMPESTUOUS WEATHER AND SOLELY BY REASON OF SUCH DELAY BECAME PUTRID
AND WAS NECESSARILY THROWN OVERBOARD.  THE COURT HELD THAT IT WAS NOT A
LOSS BY PERILS OF THE SEA.  JUDGE KEATING SAID THAT THE FACTS SHOWED
"BEYOND A DOUBT THAT THE PROXIMATE CAUSE OF THE LOSS OF THE MEAT WAS
THE DELAY IN THE PROSECUTION OF THE VOYAGE," AND "THAT DELAY WAS
OCCASIONED BY TEMPESTUOUS WEATHER."  BUT HE HELD "THAT A LOSS BY THE
UNEXPECTED DURATION OF THE VOYAGE, THOUGH THAT BE CAUSED BY PERILS OF
THE SEA," DID NOT ENTITLE THE ASSURED TO RECOVER.  JUDGE MONTAGUE
SMITH, CONCURRING, SAID THAT IF IT WERE HELD "THAT A LOSS BY DELAY,
CAUSED BY BAD WEATHER OR THE PRUDENCE OF THE CAPTAIN IN ANCHORING TO
AVOID IT, WAS A LOSS BY PERILS OF THE SEA," THE COURT WOULD "BE OPENING
A DOOR TO CLAIMS FOR LOSSES WHICH NEVER WERE INTENDED TO BE COVERED BY
INSURANCE, NOT ONLY IN THE CASE OF PERISHABLE GOODS, BUT IN THE CASE OF
GOODS OF ALL OTHER DESCRIPTIONS." 

THE CASE OF PINK V. FLEMING, L.R. 25 Q.B.D. 396, UPON WHICH CHIEF
RELIANCE IS PLACED, WAS A CASE OF COLLISION.  IT WAS NECESSARY FOR THE
DAMAGED SHIP TO PUT INTO A PORT FOR REPAIRS AND FOR THAT PURPOSE TO
DISCHARGE A PORTION OF THE GOODS INSURED, CONSISTING OF FRUIT.  THE
GOODS WERE RESHIPPED BUT ON ARRIVAL IT WAS FOUND THAT BEING OF A
PERISHABLE NATURE THEY HAD BEEN DAMAGED BY THE HANDLING NECESSARY FOR
THEIR DISCHARGE AND RESHIPMENT AND BY THE DELAY.  THE COURT OF APPEAL
HELD THAT THE COLLISION WAS NOT THE PROXIMATE CAUSE OF THE LOSS AND
THAT THERE COULD BE NO RECOVERY ON THE POLICY.  LORD ESHER SAID: 

"THE COLLISION MAY BE SAID TO HAVE BEEN A CAUSE, AND AN EFFECTIVE
CAUSE, OF THE SHIP'S PUTTING INTO A PORT AND OF REPAIRS BEING
NECESSARY.  FOR THE PURPOSE OF SUCH REPAIRS IT WAS NECESSARY TO REMOVE
THE FRUIT, AND SUCH REMOVAL NECESSARILY CAUSED DAMAGE TO IT.  THE
AGENT, HOWEVER, WHICH PROXIMATELY CAUSED THE DAMAGE TO THE FRUIT WAS
THE HANDLING, THOUGH NO DOUBT THE CAUSE OF THE HANDLING WAS THE
REPAIRS, AND THE CAUSE OF THE REPAIRS WAS THE COLLISION.  ACCORDING TO
THE ENGLISH LAW OF MARINE INSURANCE ONLY THE LAST CAUSE CAN BE
REGARDED.  THERE IS NOTHING IN THE POLICY TO SAY THAT THE UNDERWRITERS
WILL BE LIABLE FOR LOSS OCCASIONED BY THAT.  TO CONNECT THE LOSS WITH
ANY PERIL MENTIONED IN THE POLICY THE PLAINTIFFS MUST GO BACK TWO
STEPS, AND THAT, ACCORDING TO ENGLISH LAW, THEY ARE NOT ENTITLED TO
DO." 

THE COURT THOUGHT THAT THE CASE WAS GOVERNED BY TAYLOR V. DUNBAR,
SUPRA.  LORD ESHER ADDED - "WITH REGARD TO THE AMERICAN AUTHORITIES,
THE AMERICAN LAW ON THE SUBJECT SEEMS TO DIFFER MATERIALLY FROM OUR
LAW, AND THEREFORE IT IS NOT NECESSARY TO CONSIDER THEM."  FN1 

IT SEEMS THAT NEITHER OF THESE CASES WENT TO THE HOUSE OF LORDS, AND
WE FIND IT IMPOSSIBLE TO RECONCILE LORD ESHER'S RULING - "THAT
ACCORDING TO THE ENGLISH LAW OF MARINE INSURANCE ONLY THE LAST CAUSE
CAN BE REGARDED" - WITH THE ELABORATE EXPOSITION OF THE DOCTRINE OF
PROXIMATE CAUSE WHICH HAS BEEN GIVEN BY THE HOUSE OF LORDS IN LEYLAND
SHIPPING CO. V. NORWICH UNION FIRE INSURANCE SOCIETY, SUPRA, FROM WHICH
WE HAVE QUOTED.  AND IT IS RECOGNIZED IN ENGLAND THAT "PASSAGES IN LORD
ESHER'S JUDGMENT IN PINK V. FLEMING  ...  TO THE EFFECT THAT ONLY THE
CAUSE LAST IN TIME CAN BE LOOKED TO, CANNOT NOW BE SUPPORTED."  ARNOULD
ON MARINE INSURANCE, 11TH ED., SEC. 783, NOTE (R).  SO FAR AS THE
ENGLISH RULE, HOWEVER, RELATES TO LOSSES, ON SHIP OR GOODS,
"PROXIMATELY CAUSED BY DELAY, ALTHOUGH THE DELAY BE CAUSED BY A PERIL
INSURED AGAINST," IT HAS BEEN EMBODIED IN STATUTE WHICH APPARENTLY
APPLIES TO ALL GOODS, PERISHABLE OR OTHERWISE, UNLESS THE POLICY
OTHERWISE PROVIDES.  THAT STATUTE OF COURSE IS CONTROLLING IN RELATION
TO ENGLISH PRACTICE IN THAT CLASS OF CASES.  MARINE INSURANCE ACT,
1906, SEC. 55(2)(B).  L.R. STATUTES, 6 EDWARD VII, P. 227.  THERE IS NO
STATUTE APPLICABLE HERE WHICH SO RESTRICTS THE DOCTRINE OF PROXIMATE
CAUSE, AS WE UNDERSTAND IT AND AS IT IS SET FORTH IN THE LEYLAND CASE,
AND THE WEIGHT OF AMERICAN AUTHORITY IS CONTRARY TO THE DOCTRINE OF
PINK V. FLEMING. 

IN WILLIAMS V. SMITH, 2 CAINES 1(1804), THE ACTION WAS ON A POLICY OF
INSURANCE COVERING A CARGO CONSISTING CHIEFLY OF NAVAL STORES,
INCLUDING TAR IN BARRELS, ON A VOYAGE FROM NEW YORK TO ALGIERS.  THE
VESSEL EXPERIENCED SEVERE WEATHER WHICH RESULTED IN SUCH SERIOUS DAMAGE
THAT IT WAS COMPELLED TO PUT INTO CADIZ AS A PORT OF DISTRESS.  THERE
MORE THAN HALF OF HER LADING WAS TAKEN OUT AND THE VESSEL MOVED TO THE
USUAL PLACE FOR REPAIRING.  WHILE THERE AN EPIDEMIC FEVER BROKE OUT
WHICH PREVENTED ALL BUSINESS AND MADE IT IMPOSSIBLE TO OBTAIN PERMITS
FOR TAKING THE CARGO FROM THE PLACE WHERE IT HAD BEEN LANDED. 
MEANWHILE THE VESSEL WAS DRIVEN TO SEA BY A STORM AND SUSTAINED FURTHER
INJURIES AND ON RETURNING TO CADIZ IT WAS FOUND THAT THE CARGO, BOTH ON
SHORE AND ON BOARD, FROM THE HEAT OF THE CLIMATE AND VIOLENCE OF THE
GALE, WAS DETERIORATED MORE THAN ONE HALF OF ITS ORIGINAL VALUE.  AS
THE WHOLE WOULD NOT HAVE PRODUCED ENOUGH TO FIT THE SHIP FOR THE
COMPLETION OF HER VOYAGE, THE VESSEL AND THE CARGO WERE ABANDONED TO
THE UNDERWRITERS.  THE COURT CHARGED THE JURY, AMONG OTHER THINGS, THAT
"ANY DAMAGES WHICH AROSE IN CONSEQUENCE OF THE FEVER AT CADIZ, WERE
WITHIN THE PERILS OF THE POLICY."  THE JURY BROUGHT IN A VERDICT FOR A
TOTAL LOSS.  THE COURT DENIED A NEW TRIAL, JUDGE KENT STATING IN HIS
OPINION "THAT THE DAMAGE RESULTING FROM THE PESTILENCE AT CADIZ" WAS
COVERED BY THE POLICY.  THE COURT FOUND IT UNNECESSARY TO DECIDE
"WHETHER A PESTILENCE IS A PERIL DIRECT WITHIN THE POLICY," BUT HELD
THAT IT FORMED "A SOUND EXCUSE FOR DELAY AT CADIZ" AND "IF THE
CONSEQUENCE OF THAT DELAY WAS A DETERIORATION OF THE SUBJECT INSURED,
THE INSURER MUST BE ANSWERABLE FOR THE LOSS." 

IN TUDOR V. NEW ENGLAND MARINE INSURANCE CO., 12 CUSH.  554, THE SUIT
WAS UPON A POLICY OF INSURANCE ON A CARGO OF ICE SHIPPED FROM BOSTON TO
CALCUTTA.  IT WAS AGREED THAT THE ICE WAS PROPERLY PACKED AND
SURROUNDED WITH NON-CONDUCTORS OF HEAT.  UNDER THE STIPULATIONS OF THE
POLICY, THE INSURER COULD BE LIABLE, IF AT ALL, ONLY FOR A TOTAL LOSS. 
THERE WAS ALSO A CLAUSE THAT THERE SHOULD BE NO LIABILITY "FOR ICE
MELTING IN CONSEQUENCE OF PUTTING INTO PORT."  BY PERILS OF THE SEA,
THE VESSEL SPRUNG A LEAK WHICH INCREASED AND IT BECAME NECESSARY TO PUT
AWAY FOR A PORT.  ON TAKING OUT HER CARGO, IN ORDER TO ASCERTAIN HER
CONDITION AND THE PRACTICABILITY OF REPAIRS, IT WAS FOUND THAT THE ICE
HAD SETTLED, A PORTION OF IT HAVING BEEN MELTED BY THE SEA WATER WHICH
HAD COME IN CONTACT WITH IT BY REASON OF THE LEAK.  THE ICE WAS TAKEN
OUT AND SOLD FOR A VERY SMALL SUM IN COMPARISON WITH ITS ESTIMATED
VALUE AT THE PORT OF DELIVERY.  THE VOYAGE WAS ABANDONED.  IT WAS
DENIED THAT THE LOSS WAS OCCASIONED BY A PERIL OF THE SEA.  THE INSURED
HAD JUDGMENT FOR A TOTAL LOSS.  THE COURT CONSIDERED IT TO BE WELL
SETTLED THAT IF AN ARTICLE INSURED AS FREE FROM AVERAGE BE "PLACED IN
SUCH A CONDITION, THAT IN CONSEQUENCE OF INEVITABLE DETERIORATION OR
DECAY, IT CANNOT BE CARRIED TO THE PORT OF DESTINATION, BUT WILL
NECESSARILY, BEFORE THE COMPLETION OF THE VOYAGE, BE WHOLLY DESTROYED,
AND IT IS ACCORDINGLY SOLD, AT AN INTERMEDIATE PORT," THIS WOULD
CONSTITUTE A TOTAL LOSS WITHIN THE MEANING OF THE POLICY.  THE COURT
ALSO HELD THAT THE EXCEPTION OF THE RISK OF ICE "MELTING IN CONSEQUENCE
OF PUTTING INTO PORT" DID NOT INCLUDE "A LOSS OCCASIONED BY THE MELTING
OF THE ICE FROM OTHER CAUSES, OR A COMBINATION OF OTHER CAUSES."  THE
REAL CAUSE WAS THE INJURY TO THE VESSEL WHICH MADE IT NECESSARY TO TAKE
OUT THE ICE IN A PORT IN THE TROPICS.  SEE, ALSO, MUSGRAVE V. MANNHEIM
INSURANCE CO., 32 NOV. SC. REP. 405. 

CORY V. BOYLSTON INSURANCE CO., 107 MASS. 140, IS CITED BY RESPONDENT
AS AN ANSWER TO THE TUDOR CASE, BUT THE LATTER WAS NOT OVERRULED OR
EVEN MENTIONED.  IN THE CORY CASE A VESSEL WITH WINE ON BOARD MET WITH
SEVERE GALES WHICH PROLONGED HER VOYAGE AND CAUSED HER TO SHIP MUCH SEA
WATER, AND UPON HER ARRIVAL AT THE PORT OF DESTINATION THE CASES OF
WINE WERE FOUND TO BE MORE OR LESS WET EITHER BY THE SEA WATER OR BY
THE STEAM AND DAMPNESS GENERATED IN THE HOLD BY THE PRESENCE OF THE SEA
WATER AND THE CHANGES OF CLIMATE THROUGH WHICH THE VESSEL HAD PASSED. 
THE CASE WAS CONTROLLED BY SPECIAL PROVISIONS OF THE POLICY.  THE
POLICY PROVIDED THAT THE INSURERS SHOULD NOT BE LIABLE FOR LOSS BY
LEAKAGE UNLESS OCCASIONED BY STRANDING OR COLLISION, OR "FOR DAMAGE OR
INJURY TO GOODS BY DAMPNESS, RUST, CHANGE OF FLAVOR, OR BY BEING
SPOTTED, DISCOLORED, MUSTY OR MOULDY, UNLESS THE SAME BE CAUSED BY
ACTUAL CONTACT OF SEA WATER WITH THE ARTICLES DAMAGED, OCCASIONED BY
SEA PERIL."  THE COURT THOUGHT THAT THE LATTER CLAUSE WAS INSERTED WITH
A KNOWLEDGE OF THE DECISIONS IN BAKER V. MANUFACTURERS' INSURANCE CO.,
12 GRAY 603, AND MONTOYA V. LONDON ASSURANCE CO., 6 EXCH.  451.  TO
BRING A CASE WITHIN THAT CLAUSE THE COURT HELD THAT IT WAS NOT ENOUGH
"THAT PERILS OF THE SEA SHOULD BE THE EFFICIENT, AND, WITHIN THE RULE
LAID DOWN IN THE PREVIOUS DECISIONS, THE PROXIMATE CAUSE, BY WHICH THE
SEA WATER WAS SHIPPED," BUT THAT THE SEA WATER "MUST COME INTO ACTUAL
CONTACT WITH THE ARTICLES, FOR THE DAMAGE TO WHICH THE UNDERWRITERS ARE
SOUGHT TO BE CHARGED." 

RESPONDENT ALSO CITES PERRY V. COBB, 88 ME. 435, WHERE THE INSURANCE
WAS ON A CARGO OF LIME SHIPPED BY A BRIG FROM ROCKLAND TO NEW YORK. 
THE VOYAGE WAS PROLONGED ON ACCOUNT OF ROUGH WEATHER BUT THE VESSEL
ARRIVED TIGHT AND ONLY SLIGHTLY DAMAGED.  NO SEA WATER HAD REACHED THE
CARGO UNLESS IN A FEW INSTANCES WHERE A HATCH HAD BEEN TAKEN OFF OR
ONCE WHEN THE CABIN WAS FLOODED.  THAT DAMAGE WAS FAR BELOW THE PARTIAL
LOSS WHICH HAD BEEN EXCEPTED FROM THE COVERAGE.  THE REMAINING DAMAGE
WAS "FROM THE SHRINKING OF THE STAVES OF THE BARRELS AND SLACKING UP OF
THE COOPERAGE," CAUSING A LOSS OF CONTENTS AND MAKING THE BARRELS
INSECURE FOR HOISTING,  - A CONDITION WHICH WAS CLAIMED TO HAVE
RESULTED FROM THE ROLLING AND PITCHING OF THE VESSEL CAUSED BY THE
STORMS OF AN UNUSUALLY PROTRACTED VOYAGE.  THE COURT SAID THAT "ALL
AUTHORITIES AGREE THAT A PROTRACTED VOYAGE IS NOT A SEA PERIL WITHIN A
MARINE POLICY, BECAUSE IT IS NOT AN UNUSUAL EVENT, BUT ONE OF THE
NATURAL INCIDENTS TO SEA TRANSIT"; THAT THE EVIDENCE WAS CONFLICTING
"AS TO THE PROXIMATE CAUSE FOR THE CONDITION OF THE CARGO UPON ITS
ARRIVAL"; THAT THE ASSOCIATES, WHO IN THIS CASE HAD INSURED EACH OTHER
AND TO WHOM IT WAS AGREED THAT THE QUESTION OF LIABILITY SHOULD BE
SUBMITTED, WERE MEN OF LARGE EXPERIENCE IN BURNING AND SHIPPING LIME;
AND THAT THEIR DECISION AGAINST THE PLAINTIFF "MUST HAVE GREAT WEIGHT
UPON THE FACT AS TO WHETHER THE CONDITION OF THE CARGO, UPON ITS
ARRIVAL IN NEW YORK, WAS OTHER THAN WHAT MIGHT HAVE BEEN EXPECTED FROM
ORDINARY SEA WEATHER AT THAT TIME OF YEAR," WITHOUT ANY "UNUSUAL SEA
PERIL."  THE CONCLUSION WAS THAT THE PRINCIPAL DAMAGE TO THE CARGO CAME
"FROM ITS OWN INHERENT QUALITIES, EXCITED BY THE LONG CONTINUED
TRANSIT."  ID., PP. 449, 450. 

IN THE CASE OF BOND V. THE SUPERB, 1 WALL.  JR. 355; 3 FED. CAS. 845,
ALSO CITED BY RESPONDENT AND THE COURT BELOW, THE DECISION OF MR.
JUSTICE GRIER AT CIRCUIT TURNED UPON THE QUESTION OF LIABILITY FOR
GENERAL AVERAGE AND IN THIS VIEW HAD DISTINGUISHING FEATURES. 

FOURTEEN YEARS AGO A CASE CLOSELY RESEMBLING THE ONE AT BAR CAME
BEFORE THE NEW YORK COURTS.  BRANDYCE V UNITED STATES LLOYDS (THE
CORSICANA), 207 APP. DIV. 665; 203 N.Y.S. 10; 239 N.Y. 573; 147 N.E.
201.  THE ACTION WAS UPON POLICIES COVERING A CARGO OF POTATOES INSURED
AGAINST PERILS OF THE SEA.  THE VESSEL, IN CONSEQUENCE OF A COLLISION
AT SEA WITH SOME UNKNOWN OBJECT, WAS COMPELLED TO PUT INTO CHARLESTON
FOR REPAIRS WHERE IT WAS FOUND NECESSARY TO DISCHARGE THE CARGO.  AFTER
REPAIRS THE VESSEL RESUMED HER VOYAGE BUT, ON ACCOUNT OF THE DELAY, THE
POTATOES BECAUSE OF SPROUTING AND ROT HAD TO BE SOLD.  THEY WERE NOT
INJURED DIRECTLY IN THE COLLISION OR TOUCHED BY SEA WATER.  THE PRECISE
QUESTION PRESENTED WAS "WHETHER LOSS BY NATURAL DETERIORATION, DURING A
DELAY IN THE VOYAGE CAUSED BY A SEA PERIL, IS A LOSS BY SEA PERILS
WITHIN THE MEANING AND INTENT OF THE POLICY OF INSURANCE."  THE
APPELLATE DIVISION REVIEWED THE AUTHORITIES IN ENGLAND AND IN THIS
COUNTRY.  THE COURT HELD THAT MERE DELAY ON THE VOYAGE, AS A RESULT OF
WHICH CARGO IS SPOILED OR DAMAGED, WAS NOT A GROUND FOR RECOVERY.  BUT
THE COURT FOUND THAT THE COLLISION, THE SEA PERIL INSURED AGAINST, WAS
THE REAL CAUSE OF THE LOSS.  THE COURT SAID:  "THE EVIDENCE INDICATES
THAT IF THE CORSICANA HAD NOT BEEN DAMAGED BY REASON OF SEA PERILS, THE
POTATOES WOULD HAVE ARRIVED SOUND.  THE PROXIMATE CAUSE OF THE LOSS,
THEREFORE, WAS THE SEA PERIL, BECAUSE IT WAS THE EFFICIENT DOMINANT
CAUSE WHICH, ALTHOUGH INCIDENTALLY INVOLVING DELAY, PLACED THE CARGO IN
SUCH A CONDITION THAT, BECAUSE OF INEVITABLE DETERIORATION OR DECAY, IT
COULD NOT BE RESHIPPED AND CARRIED TO ITS DESTINATION."  THE COURT OF
APPEALS OF NEW YORK STATED THE QUESTION IN THE SAME WAY AND AFFIRMED
THE JUDGMENT. 

WE LAY ON ONE SIDE CASES OF PROTRACTED VOYAGES CAUSED BY STORMS AND
THE SPECIAL QUESTIONS TO WHICH THEIR VARIED CIRCUMSTANCES GIVE RISE. 
SUCH A CASE IS NOT BEFORE US.  THE INSTANT CASE IS ONE OF STRANDING, A
SEA PERIL INSURED AGAINST, AND WE THINK THAT THE WELL-SETTLED DOCTRINE
OF PROXIMATE CAUSE, MEANING THE REAL EFFICIENT CAUSE OF THE LOSS,
REQUIRES THE CONCLUSION THAT, UPON THE ASSUMPTIONS OF FACT WE STATED AT
THE OUTSET, THE LOSS OF THE CARGO WAS WITHIN THE GENERAL COVERAGE
CLAUSE OF THE POLICY. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  AS TO OTHER ENGLISH DECISIONS CITED BELOW, TATHAM V. HODGSON, 6
T.R. 656, AND INMAN STEAMSHIP CO. V. BISCHOFF, L.R. 7 APP. CAS. 670,
SEE ARNOULD ON MARINE INSURANCE, 11TH ED., SECS. 781, 785. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE SUTHERLAND ARE OF OPINION THAT
THE CASE WAS CORRECTLY DECIDED BY THE COURT BELOW ON GROUNDS ADEQUATELY
STATED. 
..END :













BIDDLE V. COMMISSIONER, 302 U.S. 573 


NO. 55.  ARGUED DECEMBER 9, 10, 1937.  - DECIDED JANUARY 10, 1938.  - 86
F.(2D) 718, AFFIRMED.  - 91 F.(2D) 973, REVERSED. 


1.  THE REVENUE ACT OF 1928 PROVIDES THAT, IN THE CASE OF A CITIZEN OF
THE UNITED STATES, THE INCOME TAX IMPOSED BY THE ACT SHALL BE CREDITED
(UP TO A SPECIFIED LIMIT) WITH THE AMOUNT OF ANY "INCOME TAXES PAID"
DURING THE TAXABLE YEAR TO ANY FOREIGN COUNTRY.  HELD THAT THE MEANING
OF THE PHRASE "INCOME TAXES PAID" IS TO BE FOUND IN OUR OWN REVENUE
LAWS RATHER THAN IN THE STATUTES AND DECISIONS OF THE FOREIGN COUNTRY
TO WHICH DEDUCTIBLE TAX PAYMENTS ARE SAID TO HAVE BEEN MADE.  P. 578. 

2.  UNDER THE BRITISH LAW, AS FOUND IN THIS CASE, A CORPORATION PAYS
THE "STANDARD" (NORMAL) INCOME TAX ON ITS PROFITS, COMPUTED AT THE RATE
IN FORCE WHEN IT RECEIVED THEM.  WHEN THE PROFITS ARE DIVIDED, THE
SHAREHOLDER IS NOT LIABLE TO ANY TAX IN RESPECT OF HIS DIVIDEND UNLESS
HIS INCOME IS SUCH AS TO SUBJECT HIM TO A SURTAX.  IN PAYING A
DIVIDEND, THE CORPORATION HAS EXPRESS PERMISSION TO DEDUCT "THE TAX
APPROPRIATE THERETO" AND IS DIRECTED TO CERTIFY TO THE SHAREHOLDER THE
GROSS AMOUNT OF THE DIVIDEND, THE RATE AND AMOUNT OF THE INCOME TAX
"APPROPRIATE" TO THE GROSS AMOUNT, AND THE NET AMOUNT ACTUALLY PAID THE
SHAREHOLDER.  THE TAX "APPROPRIATE" TO THE DIVIDEND IS COMPUTED BY
APPLYING THE STANDARD RATE FOR THE YEAR OF DISTRIBUTION TO THE VALUE OF
THE MONEY OR PROPERTY DISTRIBUTED AND WILL EQUAL THE TAX AT THE
STANDARD RATE PAID BY THE CORPORATION IF, AND ONLY IF, THAT RATE WAS
THE SAME FOR THE YEAR IN WHICH THE PROFITS WERE EARNED AS IN THE YEAR
WHEN THEY ARE DISTRIBUTED.  THE SHAREHOLDER'S SURTAX IS COMPUTED UPON
THE GROSS DIVIDEND,  - THE DIVIDEND THAT HE ACTUALLY RECEIVES PLUS THE
TAX DEDUCTED BY THE CORPORATION.  IF HIS INCOME IS EXEMPT, OR LESS THAN
THE MINIMUM SUBJECT TO SURTAX, REFUND IS MADE ACCORDINGLY.  THE PURPOSE
OF THE CERTIFICATE IS TO AID HIM IN COMPUTING HIS SURTAX AND IN
SECURING THE BENEFIT OF ANY REFUND.  HELD: 

(1)  THAT (ASIDE FROM ANY QUESTION OF SURTAX) THE AMOUNT SO CERTIFIED
AS THE TAX "APPROPRIATE" TO A DIVIDEND IS NOT A TAX PAID BY THE
SHAREHOLDER AND CAN NOT BE CREDITED AGAINST HIS UNITED STATES INCOME
TAX UNDER REV. ACT 1928, SEC. 131(A), AS A TAX PAID TO A FOREIGN
COUNTRY.  P. 579. 

(2)  IT IS NOT DEDUCTIBLE FROM HIS GROSS INCOME UNDER SEC. 23(C)(2)
OF THAT ACT, WHICH ALLOWS DEDUCTION OF INCOME TAXES IMPOSED BY THE
AUTHORITY OF ANY FOREIGN COUNTRY.  P. 583. 

3. DEPARTMENTAL TAX RULINGS NOT PROMULGATED BY THE SECRETARY OF THE
TREASURY, ARE OF LITTLE AID IN INTERPRETING A TAX STATUTE.  P. 582. 

4.  WHERE THE MEANING OF A STATUTE IS PLAIN, SUBSEQUENT REENACTMENT
DOES NOT ADOPT CONTRARY ADMINISTRATIVE CONSTRUCTION.  ID. 

5.  THE PRESUMPTION THAT CONGRESS, IN REENACTING A STATUTE, CAN
ASCERTAIN THE COURSE OF ADMINISTRATIVE INTERPRETATION AND, KNOWING ITS
OWN INTENT, WILL CORRECT THE ADMINISTRATIVE RULING IF MISTAKEN, CAN NOT
APPLY TO RULINGS UPON THE INTENT OF OTHER LEGISLATIVE BODIES.  RULINGS
OF OUR TAXING AUTHORITIES UPON THE FORCE AND EFFECT OF A TAX LAW OF A
FOREIGN COUNTRY CAN NOT HAVE ANY MORE BINDING EFFECT ON COURTS THAN IN
THE CASE OF ANY DETERMINATION OF FACT WHICH CALLS INTO OPERATION THE
TAXING STATUTES.  P. 582. 

BIDDLE V. COMMISSIONER OF INTERNAL REVENUE.* 

*TOGETHER WITH NO. 505, HELVERING, COMMISSIONER OF INTERNAL REVENUE,
V. ELKINS, ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, PP. 664, 677, TO REVIEW JUDGMENTS OF TWO CIRCUIT
COURTS OF APPEALS ONE OF WHICH REVERSED, WHILE THE OTHER AFFIRMED, A
DECISION OF THE BOARD OF TAX APPEALS, 33 B.T.A. 127, UPHOLDING
DEFICIENCY ASSESSMENTS ON INCOME TAXES. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN THEIR BRITISH INCOME TAX RETURNS, STOCKHOLDERS IN BRITISH
CORPORATIONS ARE REQUIRED TO REPORT AS INCOME, IN ADDITION TO THE
AMOUNT OF DIVIDENDS ACTUALLY RECEIVED, AMOUNTS WHICH REFLECT THEIR
RESPECTIVE PROPORTIONS OF THE TAX PAID BY THE CORPORATION ON ITS OWN
PROFITS.  THE PRINCIPAL QUESTION RAISED BY THESE PETITIONS IS WHETHER
THESE AMOUNTS CONSTITUTE "INCOME  ...  TAXES PAID OR ACCRUED DURING THE
TAXABLE YEAR TO (A) FOREIGN COUNTRY" SO AS TO ENTITLE THE STOCKHOLDERS,
IF THEY ARE CITIZENS OF THE UNITED STATES, TO CREDITS OF THOSE AMOUNTS
UPON THEIR UNITED STATES INCOME TAX, BY VIRTUE OF SEC. 131(A)(1) OF THE
REVENUE ACT OF 1928.  A FURTHER QUESTION IS WHETHER ANY OF THE AMOUNTS
NOT SO AVAILABLE AS A CREDIT MAY BE DEDUCTED FROM GROSS INCOME UNDER
SEC. 23(C)(2) OF THE ACT FOR THE PURPOSE OF ASCERTAINING THE NET INCOME
SUBJECT TO TAX. 

PETITIONER IN NO. 55 AND RESPONDENT IN NO. 505, HEREAFTER CALLED THE
TAXPAYERS, RECEIVED CASH DIVIDENDS DURING THE TAXABLE YEARS 1929 AND
1931, RESPECTIVELY, ON THEIR STOCK IN THREE BRITISH CORPORATIONS.  EACH
OF THE CORPORATIONS HAVING ITSELF PAID OR BECOME LIABLE TO PAY THE
BRITISH TAX ON THE PROFITS THUS DISTRIBUTED, NO FURTHER EXACTION AT THE
"STANDARD" (NORMAL) RATE WAS DUE THE BRITISH GOVERNMENT ON ACCOUNT OF
THE DISTRIBUTION FROM EITHER THE STOCKHOLDERS OR THE CORPORATION.  FN1
ONLY IN THE CASE OF INDIVIDUALS WHOSE INCOME EXCEEDS A STATED AMOUNT IS
A SURTAX LEVIED.  IN THESE CIRCUMSTANCES THE CORPORATIONS ARE DIRECTED
TO CERTIFY TO SHAREHOLDERS, AT THE TIME OF SENDING OUT WARRANTS FOR THE
DIVIDENDS, THE GROSS AMOUNT FROM WHICH THE INCOME TAX "APPROPRIATE
THERETO" IS DEDUCTED, THE RATE AND AMOUNT OF THE INCOME TAX APPROPRIATE
TO THE GROSS AMOUNT, AND THE NET AMOUNT ACTUALLY PAID.  FN2 

THE TAX "APPROPRIATE" TO THE DIVIDEND IS COMPUTED BY APPLYING THE
STANDARD RATE FOR THE YEAR OF DISTRIBUTION, TO THE VALUE OF THE MONEY
OR OTHER PROPERTY DISTRIBUTED.  FN3  THE AMOUNT SO COMPUTED WILL EQUAL
THE TAX PAID AT THE STANDARD RATE BY THE CORPORATION ON ITS PROFITS IF,
BUT ONLY IF, THE TAX RATE IS THE SAME IN THE YEAR WHEN THE PROFITS ARE
EARNED AS IN THE YEAR WHEN THEY ARE DISTRIBUTED. 

ONE OF THE COMPANIES AVAILED ITSELF OF THE STATUTORY PERMISSION  FN4
TO DECLARE A GROSS DIVIDEND, FROM WHICH IT DEDUCTED THE TAX BEFORE
ACTUAL DISTRIBUTION, CERTIFYING TO THE TAXPAYERS THAT THE DIVIDEND
WOULD BE PAID "LESS" INCOME TAX.  THE OTHER TWO COMPANIES DECLARED THE
DIVIDEND IN THE AMOUNT DISTRIBUTED TO STOCKHOLDERS AND CERTIFIED THAT
IT WAS "FREE OF TAX."  THE CERTIFICATES OF THE LATTER DID NOT PURPORT
TO SHOW ANY DEDUCTION OF TAX FROM A GROSS DIVIDEND, BUT DID INDICATE
THE AMOUNT OF THE TAX APPROPRIATE TO THE DIVIDEND AND SHOWED THE SAME
NET RETURN TO STOCKHOLDERS AS IF THE TAX HAD BEEN DEDUCTED FROM A
COMPUTED GROSS DIVIDEND. 

IN THEIR RETURNS TRANSMITTED TO THE DEPARTMENT OF INLAND REVENUE OF
THE BRITISH GOVERNMENT, THE TAXPAYERS REPORTED AS INCOME SUBJECT TO
SURTAX THE AMOUNT OF INCOME TAXES APPROPRIATE TO THEIR DIVIDENDS, IN
ADDITION TO THE MONEY ACTUALLY RECEIVED, AND PAID SURTAXES ON THAT
TOTAL SUM.  IN THEIR UNITED STATES INCOME TAX RETURNS FOR THOSE YEARS,
THE TAXPAYERS INCLUDED IN GROSS INCOME THE ENTIRE SUMS SO REPORTED IN
THE BRITISH RETURNS.  UP TO THE LIMIT SET BY SEC. 131(B), THEY CLAIMED
AS CREDITS AGAINST THE TAX PAYABLE TO THE UNITED STATES THE AMOUNT OF
BRITISH TAX APPROPRIATE TO THE DIVIDENDS AS WELL AS THE AMOUNT OF
SURTAX PAID.  A DEDUCTION FROM GROSS INCOME WAS CLAIMED UNDER SEC.
23(C)(2) FOR THE AMOUNT BY WHICH THE LIMIT WAS EXCEEDED. 

DEFICIENCY ASSESSMENTS OF THE TAXPAYERS WERE BROUGHT TO THE BOARD OF
TAX APPEALS FOR REVIEW.  THERE THE ISSUES WERE NARROWED TO THE
QUESTIONS NOW BEFORE US, WHETHER THE TAXPAYERS, AFTER ADDING TO GROSS
INCOME THE AMOUNTS INCLUDED IN THE BRITISH RETURNS AS TAXES APPROPRIATE
TO THE DIVIDENDS RECEIVED, WERE THEN ENTITLED TO DEDUCT THOSE AMOUNTS
FROM THE TAX AS COMPUTED, TO THE EXTENT PERMITTED BY SEC. 131(B), AND
WHETHER THE EXCESS WAS A PERMISSIBLE DEDUCTION FROM GROSS INCOME. 

THE BOARD HELD THAT THE SUMS IN DISPUTE SHOULD NOT HAVE BEEN INCLUDED
IN GROSS INCOME, BECAUSE THEY REPRESENTED NEITHER PROPERTY RECEIVED BY
THE TAXPAYERS NOR THE DISCHARGE OF ANY TAXES OWED BY THEM TO THE
BRITISH GOVERNMENT.  IT HELD FURTHER THAT SEC. 131(A)(1) OF THE REVENUE
ACT OF 1928, WHICH DIRECTS THAT THE INCOME TAX BE CREDITED WITH "THE
AMOUNT OF ANY INCOME  ...  TAXES PAID OR ACCRUED DURING THE TAXABLE
YEAR TO ANY FOREIGN COUNTRY  ..."  IS INAPPLICABLE BECAUSE THE UNITED
KINGDOM FAILS TO TAX DIVIDENDS AT THE NORMAL RATE, AND HENCE THE TAXES
APPROPRIATE TO DIVIDENDS WERE PAID BY THE CORPORATIONS RATHER THAN THE
TAXPAYER STOCKHOLDERS. 

IN NO. 55 THE COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED THE
DETERMINATION OF THE BOARD, 86 F.(2D) 718, SINCE FOLLOWED BY THAT
CIRCUIT IN F.W. WOOLWORTH CO. V. UNITED STATES, 91 F.(2D) 973, AND THE
COURT OF APPEALS FOR THE THIRD CIRCUIT, IN NO. 505, REVERSED, 91 F.(2D)
534, FOLLOWING A DECISION OF THE COURT OF APPEALS FOR THE FIRST CIRCUIT
IN UNITED SHOE MACHINERY CORP. V. WHITE, 89 F.(2D) 363.  WE GRANTED
CERTIORARI TO RESOLVE THIS CONFLICT OF DECISION, AND BECAUSE OF THE
IMPORTANCE OF THE QUESTION IN THE ADMINISTRATION OF THE REVENUE LAWS. 

AT THE OUTSET IT IS TO BE OBSERVED THAT DECISION MUST TURN ON THE
PRECISE MEANING OF THE WORDS IN THE STATUTE WHICH GRANTS TO THE CITIZEN
TAXPAYER A CREDIT FOR FOREIGN "INCOME TAXES PAID."  THE POWER TO TAX
AND TO GRANT THE CREDIT RESIDES IN CONGRESS, AND IT IS THE WILL OF
CONGRESS WHICH CONTROLS THE APPLICATION OF THE PROVISIONS FOR CREDIT. 
THE EXPRESSION OF ITS WILL IN LEGISLATION MUST BE TAKEN TO CONFORM TO
ITS OWN CRITERIA UNLESS THE STATUTE, BY EXPRESS LANGUAGE OR NECESSARY
IMPLICATION, MAKES THE MEANING OF THE PHRASE "PAID OR ACCRUED," AND
HENCE THE OPERATION OF THE STATUTE IN WHICH IT OCCURS, DEPEND UPON ITS
CHARACTERIZATION BY THE FOREIGN STATUTES AND BY DECISIONS UNDER THEM. 
CF. CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292, 294; WEISS V.
WEINER, 279 U.S. 333, 337; BURNET V. HARMEL, 287 U.S. 103, 110. 

DETERMINED BY FOREIGN TAXING STATUTES AND DECISIONS, AND THERE IS
NOTHING IN ITS LANGUAGE TO SUGGEST THAT IN ALLOWING THE CREDIT FOR
FOREIGN TAX PAYMENTS, A SHIFTING STANDARD WAS ADOPTED BY REFERENCE TO
FOREIGN CHARACTERIZATIONS AND CLASSIFICATIONS OF TAX LEGISLATION.  THE
PHRASE "INCOME TAXES PAID," AS USED IN OUR OWN REVENUE LAWS, HAS FOR
MOST PRACTICAL PURPOSES A WELL UNDERSTOOD MEANING TO BE DERIVED FROM AN
EXAMINATION OF THE STATUTES WHICH PROVIDE FOR THE LAYING AND COLLECTION
OF INCOME TAXES.  IT IS THAT MEANING WHICH MUST BE ATTRIBUTED TO IT AS
USED IN SEC. 131. 

HENCE THE BOARD'S FINDING, SUPPORTED AS IT IS BY MUCH EXPERT
TESTIMONY, THAT "THE STOCKHOLDER RECEIVING THE DIVIDEND IS REGARDED IN
THE ENGLISH INCOME TAX ACTS AS HAVING PAID 'BY DEDUCTION OR OTHERWISE'
THE TAX 'APPROPRIATE' TO THE DIVIDEND" IS NOT CONCLUSIVE.  AT MOST IT
IS BUT A FACTOR TO BE CONSIDERED IN DECIDING WHETHER THE STOCKHOLDER
PAYS THE TAX WITHIN THE MEANING OF OUR OWN STATUTE.  THAT MUST
ULTIMATELY BE DETERMINED BY ASCERTAINING FROM AN EXAMINATION OF THE
MANNER IN WHICH THE BRITISH TAX IS LAID AND COLLECTED WHAT THE
STOCKHOLDER HAS DONE IN CONFORMITY TO BRITISH LAW AND WHETHER IT IS THE
SUBSTANTIAL EQUIVALENT OF PAYMENT OF THE TAX AS THOSE TERMS ARE USED IN
OUR OWN STATUTE. 

WE ARE HERE CONCERNED ONLY WITH THE "STANDARD" OR NORMAL TAX.  THE
SCHEME OF THE BRITISH LEGISLATION IS TO IMPOSE ON CORPORATE EARNINGS
ONLY ONE STANDARD TAX, AT THE SOURCE, AND TO AVOID THE "DOUBLE"
TAXATION OF THE CORPORATE INCOME AS IT PASSES TO THE HANDS OF ITS
STOCKHOLDERS, EXCEPT AS THEY ARE SUBJECT TO SURTAX WHICH THE
CORPORATION DOES NOT PAY.  THE CORPORATION PAYS THE STANDARD TAX AND
AGAINST IT THE REMEDIES FOR NON-PAYMENT RUN.  IT HAS BEEN INTIMATED
THAT THE SHAREHOLDER MAY BE HELD TO PAYMENT OF THE TAX IN THE EVENT OF
THE CORPORATION'S DEFAULT, HAMILTON V. COMMISSIONERS OF INLAND REVENUE,
16 BRITISH TAX CASES, 213, 236, BUT THE CONTRARY VIEW FINDS MORE
SUPPORT IN JUDICIAL OPINION, ID. AT 230; DALGETY & CO., LTD. V.
COMMISSIONERS OF INLAND REVENUE, 15 BRITISH TAX CASES, 216.  238;
NEUMANN V. COMMISSIONERS OF INLAND REVENUE, 18 BRITISH TAX CASES, 341,
345, 358, 362-363, 368, AND WAS ADOPTED BY THE TAXPAYERS' EXPERT. 

ALTHOUGH THE CORPORATION, IN THE UNITED KINGDOM AS HERE, PAYS THE TAX
AND IS BOUND TO PAY IT, THE TAX BURDEN IN POINT OF SUBSTANCE IS PASSED
ON TO THE STOCKHOLDERS IN THE SAME WAY THAT IT IS PASSED ON UNDER OUR
OWN TAXING ACTS WHERE THE TAX ON THE CORPORATE INCOME IS CHARGED AS AN
EXPENSE BEFORE ANY PART OF THE RESULTING NET PROFIT IS DISTRIBUTED TO
STOCKHOLDERS.  SEE MAGILL, TAXABLE INCOME, 24 ET SEQ. WHETHER THE TAX
IS DEDUCTED FROM GROSS PROFITS BEFORE A DIVIDEND IS DECLARED, OR AFTER,
WHEN THE DEDUCTION IS TAKEN FROM THE GROSS DIVIDEND, THE NET AMOUNT
RECEIVED BY THE STOCKHOLDER IS THE SAME.  UNDER EITHER SYSTEM, IF NO
DIVIDEND IS DECLARED NO TAX IS PAID BY THE STOCKHOLDER.  FN5  IF A
DIVIDEND IS DECLARED IT MUST BE PAID, HOWEVER THE DEDUCTION IS MADE,
FROM WHAT IS LEFT AFTER THE CORPORATION HAS PAID TAXES UPON ITS
EARNINGS.  THE DIFFERENCES IN THE TWO METHODS OF DEDUCTION ARE TO BE
FOUND ONLY IN THE FORMAL BOOKKEEPING DATA WHICH, IN THE BRITISH SYSTEM,
ARE COMMUNICATED TO THE STOCKHOLDERS, NOT FOR THE PURPOSE OF LAYING OR
COLLECTING THE TAX WHICH THE CORPORATION HAS ALREADY PAID OR MUST PAY,
BUT TO AID THE STOCKHOLDERS IN COMPUTING THEIR SURTAX AND IN SECURING
THE BENEFIT OF ANY REFUND OF THE TAX. 

THE STOCKHOLDERS' SURTAX IS COMPUTED UPON THE GROSS DIVIDEND, THE
DIVIDEND WHICH HE ACTUALLY RECEIVES PLUS THE TAX DEDUCTED.  FN6  IF THE
STOCKHOLDER'S INCOME IS EXEMPT OR LESS THAN THE MINIMUM AMOUNT SUBJECT
TO THE TAX, REFUND IS MADE TO HIM OF THE PROPORTIONATE SHARE OF THE TAX
PAID BY THE CORPORATION.  FN7  IT IS UPON THESE FEATURES OF THE BRITISH
SYSTEM THAT THE TAXPAYERS CHIEFLY RELY TO SUPPORT THEIR ARGUMENT THAT
THE STOCKHOLDER PAYS THE TAX.  FOR THESE LIMITED PURPOSES, WHICH DO NOT
AFFECT THE ASSESSMENT AND PAYMENT OF THE TAX, IT IS TRUE THAT THE
BRITISH ACTS TREAT THE STOCKHOLDER AS THOUGH HE WERE THE TAXPAYER.  BUT
WITH RESPECT TO THE SURTAX THE STOCKHOLDER PAYS IT AND THE TAXPAYERS
HERE HAVE RECEIVED FOR ITS PAYMENT THE CREDIT WHICH OUR STATUTE
ALLOWS.  INCLUSION OF THE DEDUCTED AMOUNT IN THE BASE ON WHICH SURTAX
IS CALCULATED, TOGETHER WITH THE PROVISIONS FOR REFUND OF THE TAX TO
THE STOCKHOLDER WHO, IN ANY EVENT, BEARS ITS ECONOMIC BURDEN, ARE
LOGICAL RECOGNITIONS OF THE BRITISH CONCEPTION THAT THE STANDARD TAX
PAID BY THE CORPORATION IS PASSED ON TO THE STOCKHOLDERS. 

OUR REVENUE LAWS GIVE NO RECOGNITION TO THAT CONCEPTION.  ALTHOUGH THE
TAX BURDEN OF THE CORPORATION IS PASSED ON TO ITS STOCKHOLDERS WITH
SUBSTANTIALLY THE SAME RESULTS TO THEM AS UNDER THE BRITISH SYSTEM, OUR
STATUTES TAKE NO ACCOUNT OF THAT FACT IN ESTABLISHING THE RIGHTS AND
OBLIGATIONS OF TAXPAYERS.  UNTIL RECENTLY THEY HAVE NOT LAID A TAX,
EXCEPT SURTAX, ON DIVIDENDS, BUT THEY HAVE NEVER TREATED THE
STOCKHOLDER FOR ANY PURPOSE AS PAYING THE TAX COLLECTED FROM THE
CORPORATION.  NOR HAVE THEY TREATED AS TAXPAYERS THOSE UPON WHOM NO
LEGAL DUTY TO PAY THE TAX IS LAID.  MEASURED BY THESE STANDARDS OUR
STATUTES AFFORD NO SCOPE FOR SAYING THAT THE STOCKHOLDER OF A BRITISH
CORPORATION PAYS THE TAX WHICH IS LAID UPON AND COLLECTED FROM THE
CORPORATION, AND NO BASIS FOR A DECISION THAT SEC. 131 EXTENDS TO SUCH
A STOCKHOLDER A CREDIT FOR A TAX PAID BY THE CORPORATION - A PRIVILEGE
NOT GRANTED TO STOCKHOLDERS IN OUR OWN CORPORATIONS.  IT CAN HARDLY BE
SAID THAT A TAX PAID TO THE CROWN BY A BRITISH CORPORATION SUBJECT TO
UNITED STATES INCOME TAX IS NOT A TAX PAID WITHIN THE MEANING OF SEC.
23(C)(2), OF THE 1928 ACT, WHICH ALLOWS A DEDUCTION FROM GROSS INCOME
FOR TAXES PAID TO A FOREIGN COUNTRY, CF. WELCH V. ST. HELENS PETROLEUM
CO., 78 F.(2D) 631, OR THAT ITS STOCKHOLDERS COULD TAKE CREDIT UNDER
SEC. 131 FOR THEIR SHARE OF THE TAX ON THE THEORY THAT THEY ALSO HAD
PAID IT. 

THE TAXPAYERS URGE THAT DEPARTMENTAL RULINGS SUSTAINING CREDITS OR
DEDUCTIONS BY STOCKHOLDERS OF BRITISH CORPORATIONS, S.M. 3040, IV-1
C.B. 198; S.M. 5363, V-1 C.B. 89; I.T. 2401, VII-1 C.B. 126; G.C.M.
3179, VII-1 C.B. 240, HAVE TAKEN ON THE FORCE OF LAW BY VIRTUE OF THE
REENACTMENT OF THE DEDUCTION AND CREDIT PROVISIONS CARRIED INTO SECS.
23 AND 131 OF THE 1928 ACT.  LAYING ASIDE THE FACT THAT DEPARTMENTAL
RULINGS NOT PROMULGATED BY THE SECRETARY ARE OF LITTLE AID IN
INTERPRETING A TAX STATUTE, HELVERING V. NEW YORK TRUST CO., 292 U.S.
455, 467-468, THESE RULINGS REST FOR THEIR CONCLUSIONS AS TO THE
APPLICATION OF SEC. 131 UPON THEIR INTERPRETATION OF THE NATURE AND
EFFECT OF THE BRITISH LEGISLATION.  THE PRESUMPTION THAT CONGRESS, IN
REENACTING A STATUTE, CAN ASCERTAIN THE COURSE OF ADMINISTRATIVE
INTERPRETATION AND, KNOWING ITS OWN INTENT, WILL CORRECT THE
ADMINISTRATIVE RULING IF MISTAKEN, CANNOT APPLY TO RULINGS UPON THE
INTENT OF OTHER LEGISLATIVE BODIES.  SO FAR AS THE RULINGS WITH WHICH
WE ARE NOW CONCERNED SOUGHT TO STATE THE FORCE AND EFFECT OF BRITISH
LAW THEY CAN HAVE NO MORE BINDING EFFECT ON COURTS THAN IN THE CASE OF
ANY DETERMINATION OF FACT WHICH CALLS INTO OPERATION THE TAXING
STATUTES.  SO FAR AS THEY HAVE CONSTRUED OUR OWN STATUTE AS ADOPTING
THE BRITISH CHARACTERIZATION, THEY PLAINLY MISINTERPRET AN UNAMBIGUOUS
PROVISION.  WHERE THE LAW IS PLAIN THE SUBSEQUENT REENACTMENT OF A
STATUTE DOES NOT CONSTITUTE ADOPTION OF ITS ADMINISTRATIVE
CONSTRUCTION.  ISELIN V. UNITED STATES, 270 U.S. 245; LOUISVILLE & N.R.
CO. V. UNITED STATES, 282 U.S. 740; HELVERING V. NEW YORK TRUST CO.,
SUPRA. 

WHAT WE HAVE SAID IS DECISIVE OF THE SECOND QUESTION, WHETHER ANY OF
THE AMOUNTS NOT AVAILABLE FOR CREDIT UNDER SEC. 131 MAY BE DEDUCTED
FROM GROSS INCOME FOR THE PURPOSE OF ARRIVING AT TAXABLE NET INCOME. 
BY SEC. 23(C)(2) OF THE 1928 ACT THE DEDUCTIONS OF "INCOME  ...  TAXES
IMPOSED BY THE AUTHORITY OF ANY FOREIGN COUNTRY" ARE LIMITED TO TAXES
PAID OR ACCRUED.  SINCE WE HAVE HELD THAT THE TAXPAYER HAS NOT PAID OR
BECOME SUBJECT TO THE FOREIGN TAX HERE IN QUESTION, THE SECTION BY ITS
TERMS IS INAPPLICABLE.  NO. 55, AFFIRMED.  NO. 505, REVERSED. 

FN1  BRITISH INCOME TAX ACT 1918, 8 AND 9 GEO. V, C. 40, AS AMENDED
BY SEC. 38, FINANCE ACT OF 1927, 17 AND 18 GEO. V, C. 10.  GENERAL RULE
1 OF THE 1918 ACT PROVIDES, "EVERY BODY OF PERSONS SHALL BE CHARGEABLE
TO TAX IN LIKE MANNER AS ANY PERSON IS CHARGEABLE UNDER THE PROVISIONS
OF THIS ACT."  BY SEC. 237 OF THE 1918 ACT "BODY OF PERSONS" INCLUDES
"ANY COMPANY  ...  WHETHER CORPORATE OR NOT CORPORATE." 

FN2  SECTION 33, FINANCE ACT OF 1924, 14 AND 15 GEO. V, C. 21. 

FN3  THE ACT OF 1918 PRESCRIBES GENERAL RULES FOR THE ASSESSMENT AND
COLLECTION OF TAXES "ON PROFITS FROM PROPERTY, TRADE OR BUSINESS."  BY
GENERAL RULE 20 IT IS PROVIDED THAT THE TAX IS TO BE PAID ON THE "FULL
AMOUNT" OF THE PROFIT "BEFORE ANY DIVIDEND THEREOF IS MADE IN RESPECT
OF ANY SHARE  ...  AND THE BODY OF PERSONS PAYING SUCH DIVIDEND SHALL
BE ENTITLED TO DEDUCT THE TAX APPROPRIATE THERETO."  THE TAX
"APPROPRIATE" TO A DIVIDEND PAYMENT IS THE STANDARD RATE OF TAX FOR THE
YEAR IN WHICH THE DIVIDEND IS DECLARED, REGARDLESS OF THE RATE AT WHICH
THE AMOUNT DISTRIBUTED WAS IN FACT TAXED WHEN IT WAS RECEIVED BY THE
COMPANY.  HAMILTON V. COMMISSIONERS OF INLAND REVENUE, 16 BRITISH TAX
CASES, 213, 229, 234; NEUMANN V. COMMISSIONERS OF INLAND REVENUE, 18
BRITISH TAX CASES, 332, 359, 361. 

FN4  GENERAL RULE 20, INCOME TAX OF 1918. 

FN5  CF. DALGETY & CO., LTD. V. COMMISSIONERS OF INLAND REVENUE, 15
BRITISH TAX CASES 216, 238; NEUMANN V. COMMISSIONERS OF INLAND REVENUE,
18 BRITISH TAX CASES 341, 345, 358, 362-363, 368. 

FN6  HAMILTON V. COMMISSIONERS OF INLAND REVENUE, 16 BRITISH TAX
CASES 213, 229, 234; NEUMANN V. COMMISSIONERS OF INLAND REVENUE, 18
BRITISH TAX CASES 332, 345, 358-360, 361. 

FN7  INCOME TAX ACT OF 1918, SECS. 29(1), 55(1), 211(1) AS AMENDED BY
FINANCE ACT, 1920, SEC. 27(1). 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE SUTHERLAND, AND MR. JUSTICE
BUTLER ARE OF OPINION THAT THE APPLICABLE RULE WAS CORRECTLY STATED BY
THE LOWER COURT IN NO. 505, ELKINS V. COMMISSIONER, 91 F.(2D) 534, AND
BY THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT IN UNITED SHOE
MACHINERY CORP. V. WHITE, 89 F.(2D) 363, AND THAT THE CHALLENGED
JUDGMENT IN NO. 55 SHOULD BE REVERSED AND THAT IN NO. 505 AFFIRMED. 
..END :














R.R. COMM'N V. PACIFIC GAS CO., 302 U.S. 388 


NO. 804(OCTOBER TERM, 1936).  ARGUED APRIL 30, 1937.  REARGUED NOVEMBER
11, 1937.  - DECIDED JANUARY 3, 1938.  - 13 F.SUPP.  931 - 16 ID. 884,
REVERSED. 


1.  HAVING ACQUIRED JURISDICTION BY VIRTUE OF FEDERAL QUESTIONS, THE
DISTRICT COURT MAY DETERMINE ALL QUESTIONS IN THE CASE, LOCAL AS WELL
AS FEDERAL.  P. 391. 

2.  THE RESPONDENT IN THIS CASE HAS NOT SHOWN THAT THE COMMISSION, IN
FIXING ITS RATES FOR GAS, DENIED IT THE HEARING REQUIRED BY THE
CALIFORNIA PUBLIC UTILITIES ACT.  P. 391. 

3.  WHETHER THE COMMISSION'S FINDINGS FOUND SUPPORT IN THE EVIDENCE
BEFORE IT, CANNOT BE DETERMINED UPON A RECORD NOT CONTAINING THAT
EVIDENCE.  P. 392. 

4.  WHEN THE RATE-MAKING AGENCY OF THE STATE GIVES A FAIR HEARING,
RECEIVES AND CONSIDERS THE COMPETENT EVIDENCE THAT IS OFFERED, AFFORDS
OPPORTUNITY THROUGH EVIDENCE AND ARGUMENT TO CHALLENGE THE RESULT, AND
MAKES ITS DETERMINATION UPON EVIDENCE AND NOT ARBITRARILY, THE
REQUIREMENTS OF PROCEDURAL DUE PROCESS ARE MET, AND THE QUESTION THAT
REMAINS FOR THIS COURT, OR A LOWER FEDERAL COURT, IS NOT AS TO THE MERE
CORRECTNESS OF THE METHOD AND REASONING ADOPTED BY THE REGULATING
AGENCY BUT WHETHER THE RATES IT FIXES WILL RESULT IN CONFISCATION.  P.
393. 

5.  AFFIDAVITS USED BEFORE THE COURT BELOW AND THE COMMISSION'S
OFFICIAL OPINION DISPROVE THE RESPONDENT'S CONTENTION THAT, IN FIXING
ITS RATES, THE COMMISSION REFUSED TO RECEIVE EVIDENCE OF THE COST OF
REPRODUCTION OR TO CONSIDER THAT OR OTHER EVIDENCE OFFERED BY
RESPONDENT WITH RESPECT TO THE VALUE OF ITS PROPERTY.  P. 395. 

6.  IN FIXING RATES OF A PUBLIC UTILITY, A STATE COMMISSION MAY WEIGH
THE EVIDENCE OF REPRODUCTION COST, ETC. AND MAY DETERMINE THE PROBATIVE
FORCE OF ESTIMATES OF VALUE.  P. 397. 

7.  HISTORICAL COST, AS WELL AS COST OF REPRODUCTION, IS ADMISSIBLE
EVIDENCE OF THE VALUE OF A PUBLIC UTILITY'S PROPERTY.  P. 398. 

8.  THE FINDINGS OF THE COMMISSION CONTAINED IN ITS OFFICIAL OPINION
IN THIS CASE SHOW THAT THE COMMISSION FOUND WHAT IT REGARDED AS A
REASONABLE VALUE FOR RESPONDENT'S PROPERTY FOR THE PURPOSE OF FIXING
RATES AND FIXED THE RATES ON THAT BASIS.  P. 400. 

9.  ONE WHO COMPLAINS IN A FEDERAL COURT OF THE CONSTITUTIONAL
INVALIDITY OF STATE-MADE RATES, HAS THE BURDEN OF SHOWING THAT
INVALIDITY BY CONVINCING PROOF.  P. 401. 

10.  THE COURT SEES NO SUFFICIENT REASON FOR DIRECTING THAT THE
EVIDENCE BE SENT UP FOR THE PURPOSE OF AIDING IN DETERMINING THE
PROCEDURAL POINTS PRESENTED ON THIS APPEAL.  THE MAIN ISSUE IN THE CASE
IS WHETHER THE RATES AS FIXED ARE CONFISCATORY - AN ISSUE WHICH WAS
NOT, BUT SHOULD BE, DECIDED, BY THE DISTRICT COURT.  P. 401. 

RAILROAD COMMISSION OF CALIFORNIA ET AL. V. PACIFIC GAS & ELECTRIC
CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF CALIFORNIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES,
PERMANENTLY ENJOINING THE ENFORCEMENT OF AN ORDER FIXING THE RATES FOR
GAS SUPPLIED BY THE ABOVENAMED RESPONDENT.  THE CASE WAS HEARD AT THE
LAST TERM AND THE DECREE AFFIRMED BY A DIVIDED COURT, 301 U.S. 669. 
REHEARING WAS GRANTED AND REARGUMENT WAS ORDERED, POST, P. 771. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A FINAL DECREE OF THE DISTRICT COURT, COMPOSED
OF THREE JUDGES (28 U.S.C. 380), PERMANENTLY ENJOINING AN ORDER OF THE
RAILROAD COMMISSION OF THE STATE OF CALIFORNIA. 

THE COMMISSION BY ITS ORDER ON NOVEMBER 13, 1933, IN A PROCEEDING
INSTITUTED ON ITS OWN MOTION, FIXED RATES FOR GAS SUPPLIED BY
RESPONDENT.  IN THIS SUIT, THE VALIDITY OF THE ORDER WAS CHALLENGED AS
DEPRIVING RESPONDENT OF PROPERTY WITHOUT DUE PROCESS OF LAW, IN
VIOLATION OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED
STATES.  AN INTERLOCUTORY INJUNCTION WAS GRANTED AND THE CAUSE WAS
REFERRED TO A SPECIAL MASTER.  THE PARTIES STIPULATED FOR THE
SUBMISSION OF THE CAUSE UPON THE RECORD MADE BEFORE THE COMMISSION WITH
CERTAIN SUPPLEMENTARY EVIDENCE.  FOLLOWING A HEARING, THE MASTER ON THE
BASIS OF FINDINGS AS TO VALUE, EXPENSES AND REVENUES, CONCLUDED THAT
THE RATES PRESCRIBED WERE CONFISCATORY AND VOID.  13 F.SUPP.  PP. 931,
932.  THE DISTRICT COURT EXPRESSLY STATED THAT IT DID "NOT PASS UPON
THE FACTUAL EXCEPTIONS TO THE MASTER'S REPORT" AND DID "NOT APPROVE OR
REJECT HIS FINDINGS AS TO THE FAIR VALUE" OF THE PROPERTY "OR DETERMINE
THE NET INCOME" WHICH WOULD RESULT FROM THE ASSAILED RATES, "OR
DETERMINE WHAT WOULD BE A FAIR RATE OF RETURN," BUT RESTED ITS DECISION
"SOLELY UPON THE DENIAL OF DUE PROCESS OF LAW BY THE COMMISSION IN
FIXING THE RATES IN QUESTION."  ID., P. 936.  REHEARING WAS DENIED.  16
F.SUPP.  884.  ON APPEAL HERE THE DECREE WAS AFFIRMED BY AN EQUALLY
DIVIDED COURT.  301 U.S. 669.  REARGUMENT WAS ORDERED (OCTOBER 11,
1937) AND HAS BEEN HAD. 

THE PARTIES HAVE NOT BROUGHT BEFORE US THE EVIDENCE THAT WAS TAKEN
BEFORE THE COMMISSION OR THAT WAS BEFORE THE COURT BELOW, WITH THE
EXCEPTION OF CERTAIN AFFIDAVITS BY THE PRESIDENT OF THE RESPONDENT AND
THE PRESIDENT OF THE COMMISSION, RESPECTIVELY, IN RELATION TO THE
PROCEEDINGS BEFORE THE COMMISSION.  RESPONDENT HAS IN EFFECT CHALLENGED
THE ACTION OF THE COMMISSION AS INVALID UPON THE FACE OF ITS OPINION
AND ORDER.  39 CAL. R. COM. 49.  APPELLANTS HAVE ACCEPTED THAT
CHALLENGE. 

1.  RESPONDENT SEEKS TO SUSTAIN THE DECREE UPON THE GROUND THAT THE
COMMISSION'S ORDER WAS NOT AUTHORIZED BY THE STATE LAW.  BECAUSE OF THE
FEDERAL QUESTION RAISED BY THE BILL OF COMPLAINT, THE DISTRICT COURT
HAD JURISDICTION TO DETERMINE ALL THE QUESTIONS IN THE CASE, LOCAL AS
WELL AS FEDERAL.  SILER V. LOUISVILLE & NASHVILLE R. CO., 213 U.S. 175,
191; LOUISVILLE & NASHVILLE R. CO. V. GARRETT, 231 U.S. 298, 303;
UNITED FUEL GAS CO. V. RAILROAD COMMISSION, 278 U.S. 300, 307. 

THE STATE STATUTE TO WHICH OUR ATTENTION IS DIRECTED (SEC. 32 OF THE
CALIFORNIA PUBLIC UTILITIES ACT, CAL. STAT., 1923, P. 837, SET FORTH IN
THE MARGIN)  FN1  PROVIDES THAT WHENEVER THE COMMISSION AFTER A HEARING
SHALL FIND THE EXISTING RATES CHARGED BY A PUBLIC UTILITY TO BE UNJUST,
UNREASONABLE, DISCRIMINATORY OR PREFERENTIAL, THE COMMISSION SHALL
DETERMINE THE JUST AND REASONABLE RATES TO BE THEREAFTER IN FORCE.  IN
THIS INSTANCE, THE COMMISSION'S ORDER SHOWS ON ITS FACE THAT THE
COMMISSION FOUND THE EXISTING RATES TO BE UNJUST AND UNREASONABLE.  39
CAL. R. COM., P. 77.  SO FAR AS RESPONDENT CONTENDS THAT THIS FINDING
WAS NOT SUSTAINED BY EVIDENCE, IT IS SUFFICIENT TO SAY THAT THE
EVIDENCE IS NOT HERE AND WE CANNOT SAY THAT THE RULING LACKED SUPPORT. 

RESPONDENT STATES THAT IT WAS DENIED A PROPER HEARING, BUT THE RECORD
SHOWS THAT THE COMMISSION HELD EXTENDED HEARINGS, AT WHICH THE EVIDENCE
OFFERED BY RESPONDENT WAS RECEIVED AND ITS ARGUMENTS WERE PRESENTED. 
FN2  39 CAL. R. COM., P. 51.  WHILE THESE HEARINGS WERE IN PROGRESS,
AND ON JUNE 16, 1933, RESPONDENT WAS CITED TO SHOW CAUSE WHY INTERIM
RATES SHOULD NOT BE PUT INTO EFFECT PENDING THE PROCEEDING.  RESPONDENT
STIPULATED THAT IT WOULD COMPLETE THE PRESENTATION OF ITS EVIDENCE
BEFORE OCTOBER 1, 1933, AND THAT THE RATES WHICH THE COMMISSION
ESTABLISHED IN THE PROCEEDING MIGHT, IF LOWER THAN THE EXISTING RATES,
BE MADE RETROACTIVE SO AS TO APPLY TO METER READINGS MADE AFTER JULY
16, 1933, AND BEFORE NOVEMBER 15, 1933.  THAT DATE WAS LATER CHANGED BY
STIPULATION TO JANUARY 1, 1934.  ID., PP. 52, 53. 

WE HAVE NOT BEEN REFERRED TO ANY STATE DECISIONS WARRANTING THE
CONCLUSION THAT THE COMMISSION DID NOT AFFORD A HEARING IN ACCORDANCE
WITH THE STATE LAW.  WE TURN TO THE CONSTITUTIONAL QUESTION. 

2.  AS THE DISTRICT COURT DID NOT DEAL WITH THE ISSUE OF CONFISCATION
AND THE EVIDENCE IS NOT BEFORE US, WE ARE CONCERNED ONLY WITH THE
QUESTION OF PROCEDURAL DUE PROCESS, THAT IS, WHETHER THE COMMISSION IN
ITS PROCEDURE, AS DISTINGUISHED FROM THE EFFECT OF ITS ORDER UPON
RESPONDENT'S PROPERTY RIGHTS, FAILED TO SATISFY THE REQUIREMENTS OF THE
FEDERAL CONSTITUTION.  WE EXAMINE THIS QUESTION IN THE LIGHT OF WELL
SETTLED PRINCIPLES GOVERNING THE PROCEEDINGS OF RATE-MAKING
COMMISSIONS. 

THE RIGHT TO A FAIR AND OPEN HEARING IS ONE OF THE RUDIMENTS OF FAIR
PLAY ASSURED TO EVERY LITIGANT BY THE FEDERAL CONSTITUTION AS A MINIMAL
REQUIREMENT.  OHIO BELL TELEPHONE CO. V. PUBLIC UTILITIES COMM'N, 301
U.S. 292, 304, 305.  THERE MUST BE DUE NOTICE AND AN OPPORTUNITY TO BE
HEARD, THE PROCEDURE MUST BE CONSISTENT WITH THE ESSENTIALS OF A FAIR
TRIAL, AND THE COMMISSION MUST ACT UPON EVIDENCE AND NOT ARBITRARILY. 
INTERSTATE COMMERCE COMM'N V. LOUISVILLE & NASHVILLE R. CO., 227 U.S.
88, 91; ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 51,
73; MORGAN V. UNITED STATES, 298 U.S. 468, 480-481; OHIO BELL TELEPHONE
CO. V. PUBLIC UTILITIES COMM'N, SUPRA.  AS WE HAVE SEEN, THE RESPONDENT
WAS HEARD, THE COMMISSION RECEIVED THE TESTIMONY OF RESPONDENT'S
WITNESSES, ITS EXHIBITS AND ARGUMENTS.  THERE IS NOTHING WHATEVER TO
SHOW THAT THE HEARING WAS NOT CONDUCTED FAIRLY. 

THE COMPLAINT IS NOT OF THE ABSENCE OF THESE RUDIMENTS OF FAIR PLAY
BUT OF THE METHOD BY WHICH THE COMMISSION ARRIVED AT ITS RESULT.  AS TO
THIS A FUNDAMENTAL DISTINCTION MUST BE OBSERVED.  WHILE A FAIR AND OPEN
HEARING MUST BE ACCORDED AS AN INEXORABLE SAFEGUARD, WE DO NOT SIT AS
AN APPELLATE BOARD OF REVISION BUT TO ENFORCE CONSTITUTIONAL RIGHTS. 
SAN DIEGO LAND & TOWN CO. V. JASPER, 189 U.S. 439, 446.  WHEN THE RATE
MAKING AGENCY OF THE STATE GIVES A FAIR HEARING, RECEIVES AND CONSIDERS
THE COMPETENT EVIDENCE THAT IS OFFERED, AFFORDS OPPORTUNITY THROUGH
EVIDENCE AND ARGUMENT TO CHALLENGE THE RESULT, AND MAKES ITS
DETERMINATION UPON EVIDENCE AND NOT ARBITRARILY, THE REQUIREMENTS OF
PROCEDURAL DUE PROCESS ARE MET, AND THE QUESTION THAT REMAINS FOR THIS
COURT, OR A LOWER FEDERAL COURT, IS NOT AS TO THE MERE CORRECTNESS OF
THE METHOD AND REASONING ADOPTED BY THE REGULATING AGENCY BUT WHETHER
THE RATES IT FIXES WILL RESULT IN CONFISCATION. 

WE HAVE RECENTLY HAD OCCASION TO EMPHASIZE THIS DISTINCTION IN
PASSING UPON AN ORDER OF THE APPELLANT COMMISSION IN THE CASE OF LOS
ANGELES GAS CO. V. RAILROAD COMMISSION, 289 U.S. 287, 304, 305.  WE
SAID: 

"THE LEGISLATIVE DISCRETION IMPLIED IN THE RATE MAKING POWER
NECESSARILY EXTENDS TO THE ENTIRE LEGISLATIVE PROCESS, EMBRACING THE
METHOD USED IN REACHING THE LEGISLATIVE DETERMINATION AS WELL AS THAT
DETERMINATION ITSELF.  WE ARE NOT CONCERNED WITH EITHER, SO LONG AS
CONSTITUTIONAL LIMITATIONS ARE NOT TRANSGRESSED.  WHEN THE LEGISLATIVE
METHOD IS DISCLOSED, IT MAY HAVE A DEFINITE BEARING UPON THE VALIDITY
OF THE RESULT REACHED, BUT THE JUDICIAL FUNCTION DOES NOT GO BEYOND THE
DECISION OF THE CONSTITUTIONAL QUESTION.  THAT QUESTION IS WHETHER THE
RATES AS FIXED ARE CONFISCATORY.  AND UPON THAT QUESTION THE
COMPLAINANT HAS THE BURDEN OF PROOF AND THE COURT MAY NOT INTERFERE
WITH THE EXERCISE OF THE STATE'S AUTHORITY UNLESS CONFISCATION IS
CLEARLY ESTABLISHED." 

THIS CONTROLLING PRINCIPLE WAS REITERATED, WITH DUE EMPHASIS UPON THE
NECESSITY OF A FAIR HEARING, IN THE CASE OF WEST OHIO GAS CO. V. PUBLIC
UTILITIES COMM'N, (NO. 1), 294 U.S. 63, 70, IN THESE WORDS: 

"OUR INQUIRY IN RATE CASES COMING HERE FROM THE STATE COURTS IS
WHETHER THE ACTION OF THE STATE OFFICIALS IN THE TOTALITY OF ITS
CONSEQUENCES IS CONSISTENT WITH THE ENJOYMENT BY THE REGULATED UTILITY
OF A REVENUE SOMETHING HIGHER THAN THE LINE OF CONFISCATION.  IF THIS
LEVEL IS ATTAINED, AND ATTAINED WITH SUITABLE OPPORTUNITY THROUGH
EVIDENCE AND ARGUMENT (SOUTHERN RY. CO. V. VIRGINIA, 290 U.S. 190) TO
CHALLENGE THE RESULT, THERE IS NO DENIAL OF DUE PROCESS, THOUGH THE
PROCEEDING IS SHOT THROUGH WITH IRREGULARITY OR ERROR."  THE STATEMENT
IS EQUALLY APPLICABLE, AS THE LOS ANGELES CASE SHOWS, WHEN THE ORDER OF
A STATE COMMISSION IS ASSAILED IN A FEDERAL COURT. 

3.  THE GRAVAMEN OF RESPONDENT'S COMPLAINT IS THAT THE COMMISSION
REFUSED TO CONSIDER THE FAIR VALUE OF RESPONDENT'S PROPERTY AND IN
FIXING THE RATE BASE "GAVE WEIGHT AND EFFECT SOLELY TO THE HISTORICAL
COST." 

RESPONDENT SUPPORTS ITS CONTENTION BY REFERRING TO THE STATEMENT OF
THE COMMISSION THAT DURING ITS ENTIRE HISTORY, "TO DETERMINE A PROPER
RATE BASE THIS COMMISSION HAS USED THE ACTUAL OR ESTIMATED HISTORICAL
COSTS OF THE PROPERTIES UNDEPRECIATED, WITH LAND AT THE PRESENT MARKET
VALUE," AND, CONSISTENTLY WITH THAT, THE COMMISSION HAS "USED THE
SINKING FUND METHOD TO DETERMINE THE ALLOWANCE FOR DEPRECIATION TO BE
INCLUDED IN OPERATING EXPENSES."  THE COMMISSION GAVE ITS REASONS WHY
THIS "HISTORICAL METHOD HAS DOMINATED THE COMMISSION'S FINDINGS."  39
CAL. R. COM., PP. 57, 58.  THE TEXT OF THIS PORTION OF THE COMMISSION'S
STATEMENT IS GIVEN IN THE MARGIN.  FN3 REFERENCE IS ALSO MADE TO
STATEMENTS OF THE COMMISSION IN ITS SUPPLEMENTAL INVESTIGATION IN THE
LIGHT OF THE OPINION OF THE DISTRICT COURT ON THE MOTION FOR AN
INTERLOCUTORY INJUNCTION.  ID., PP. 198, 202; 5 F.SUPP.  878. 

BUT IT DOES NOT FOLLOW FROM THESE STATEMENTS THAT THE COMMISSION
REFUSED TO RECEIVE EVIDENCE OF THE COST OF REPRODUCTION OR TO CONSIDER
THAT OR OTHER EVIDENCE PRESENTED BY RESPONDENT WITH RESPECT TO THE
VALUE OF ITS PROPERTY.  THE CONTRARY CLEARLY APPEARS. 

RESPONDENT SUBMITTED TO THE DISTRICT COURT AFFIDAVITS OF ITS
PRESIDENT SETTING FORTH ITS CONTENTION THAT NO CONSIDERATION WAS GIVEN
TO REPRODUCTION COST.  THIS CONTENTION WAS COMBATTED BY AN AFFIDAVIT OF
THE PRESIDENT OF THE COMMISSION IN WHICH IT IS STATED THAT THE
COMMISSION GAVE CAREFUL CONSIDERATION TO ALL THE TESTIMONY OF RECORD
RELATIVE TO VALUE AND TO THE TESTIMONY OFFERED BY RESPONDENT RESPECTING
REPRODUCTION COST.  THESE AFFIDAVITS ARE OF SLIGHT VALUE AS WE HAVE THE
OFFICIAL OPINION OF THE COMMISSION STATING THE COURSE WHICH IT
PURSUED.  THAT OPINION SHOWS PRECISELY WHAT THE COMMISSION HAS DONE IN
THIS INSTANCE.  THE COMMISSION STATES, 39 CAL. R. COM. P. 64: 

"TESTIMONY REGARDING THE COST TO REPRODUCE THE PROPERTIES HERE UNDER
CONSIDERATION WAS PRESENTED BY THE COMPANY'S VALUATION ENGINEER ON
SEVERAL PRICE BASES, ALL BEING DEVELOPED THROUGH THE APPLICATION OF
PRICE TRANSLATION FACTORS, AND NOT THROUGH THE APPLICATION OF
APPROPRIATE PRICES TO AN INVENTORY OF THE PROPERTY.  IN EACH PRICING
PERIOD OFFERED THE ESTIMATE TO REPRODUCE WAS HIGHER THAN THE HISTORICAL
COST.  FOR THE FIRST SIX MONTHS' PERIOD OF 1933 THE REPRODUCTION COST
WAS SHOWN AS 8 PER CENT HIGHER THAN HISTORICAL.  A PERUSAL OF PRICE
TREND CHARTS INTRODUCED BY THE COMPANY ELSEWHERE IN THE PROCEEDINGS
INDICATES THAT THE ESTIMATE MUST BE IN ERROR.  IT IS NOT CONCEIVABLE
THAT A PROPERTY, 80 PER CENT. OF WHICH HAS BEEN CONSTRUCTED IN THE HIGH
PRICE PERIOD FOLLOWING 1919, COULD NOT BE REPRODUCED FOR A LESSER COST
UNDER PRICES PREVAILING IN THE FIRST SIX MONTHS OF 1933.  WITNESS FOR
THE CITY OF SAN FRANCISCO CLEARLY INDICATED WHY THE ESTIMATE WAS
ERRONEOUS WHEN HE SHOWED THAT THE METHOD USED IGNORED CERTAIN FACTORS
TENDING IN LATER YEARS TO DECREASE COST, SUCH AS IMPROVEMENT IN
CONSTRUCTION MATERIALS AND METHODS, INCREASED USE OF MECHANICAL
EQUIPMENT AND A LESSENING IN THE WIDTH OF THE EXCAVATIONS AND PAVEMENT
CUT.  THE ESTIMATES OF COST TO REPRODUCE ARE NOT AT ALL CONVINCING AND
CANNOT BE OF POSITIVE VALUE IN THIS PROCEEDING." 

THE COMMISSION WAS ENTITLED TO WEIGH THE EVIDENCE INTRODUCED, WHETHER
RELATING TO REPRODUCTION COST OR TO OTHER MATTERS.  THE COMMISSION WAS
ENTITLED TO DETERMINE THE PROBATIVE FORCE OF RESPONDENT'S ESTIMATES. 
THAT THE COMMISSION DID SO IS APPARENT FROM BOTH ITS STATEMENT TO THAT
EFFECT AND THE REASONS IT GIVES FOR CONSIDERING THESE ESTIMATES TO BE
WITHOUT POSITIVE VALUE.  THE COMMISSION COMPARED THEM WITH OTHER
EVIDENCE AND FOUND THE ESTIMATES TO BE ERRONEOUS.  IT FOUND THAT 80 PER
CENT. OF THE PROPERTY HAD BEEN CONSTRUCTED IN THE PRIOR "HIGH PRICE
PERIOD" AND THE COMMISSION THOUGHT IT INCONCEIVABLE THAT THE PROPERTY
COULD NOT BE REPRODUCED "FOR A LESSER COST UNDER PRICES PREVAILING IN
THE FIRST SIX MONTHS OF 1933."  THESE STATEMENTS NOT ONLY DO NOT
SUGGEST BUT DEFINITELY REBUT AN INFERENCE OF ARBITRARY ACTION.    THERE
IS NO PRINCIPLE OF DUE PROCESS WHICH REQUIRES THE RATE MAKING BODY TO
BASE ITS DECISION AS TO VALUE, OR ANYTHING ELSE, UPON CONJECTURAL AND
UNSATISFACTORY ESTIMATES.  WE HAVE HAD FREQUENT OCCASION TO REJECT SUCH
ESTIMATES.  MINNESOTA RATE CASE, 230 U.S. 352, 452; LOS ANGELES GAS CO.
V. RAILROAD COMMISSION, SUPRA, PP. 307, 310, 311; LINDHEIMER V.
ILLINOIS BELL TELEPHONE CO., 292 U.S. 151, 163, 164.  WHETHER IN THIS
INSTANCE THE COMMISSION WAS IN ERROR IN TREATING RESPONDENT'S ESTIMATES
AS WITHOUT PROBATIVE FORCE, WE HAVE NO MEANS OF KNOWING AS THE EVIDENCE
IS NOT BEFORE US, BUT ITS ERROR IN THAT CONCLUSION, IF ERROR THERE BE,
WAS NOT A DENIAL OF DUE PROCESS.  LOS ANGELES GAS CO. V. RAILROAD
COMMISSION, SUPRA; OHIO BELL TELEPHONE CO. V. RAILROAD COMMISSION,
SUPRA. 

NOR DID THE RULING WITH RESPECT TO THE WEIGHT OF EVIDENCE AS TO
REPRODUCTION COST LEAVE THE COMMISSION WITHOUT EVIDENCE OF THE VALUE OF
RESPONDENT'S PROPERTY.  WE HAVE FREQUENTLY HELD THAT HISTORICAL COST IS
ADMISSIBLE EVIDENCE OF VALUE.  FOR EXAMPLE, IN THE LOS ANGELES CASE WE
SAID THAT "NO ONE WOULD QUESTION THAT THE REASONABLE COST OF AN
EFFICIENT PUBLIC UTILITY SYSTEM 'IS GOOD EVIDENCE OF ITS VALUE AT THE
TIME OF CONSTRUCTION,'" AND THAT "SUCH ACTUAL COST WILL CONTINUE FAIRLY
WELL TO MEASURE THE AMOUNT TO BE ATTRIBUTED TO THE PHYSICAL ELEMENTS OF
THE PROPERTY SO LONG AS THERE IS NO CHANGE IN THE LEVEL OF APPLICABLE
PRICES," CITING MCCARDLE V. INDIANAPOLIS WATER CO., 272 U.S. 400, 411. 
AND WE ADDED THAT "WHEN SUCH A CHANGE IN THE PRICE LEVEL HAS OCCURRED,
ACTUAL EXPERIENCE IN THE CONSTRUCTION AND DEVELOPMENT OF THE PROPERTY,
ESPECIALLY EXPERIENCED IN A RECENT PERIOD, MAY BE AN IMPORTANT CHECK
UPON EXTRAVAGANT ESTIMATES."  LOS ANGELES GAS CO. V. RAILROAD
COMMISSION, SUPRA, P. 306.  WHILE THE COURT HAS FREQUENTLY DECLARED
THAT "IN ORDER TO DETERMINE PRESENT VALUE, THE COST OF REPRODUCING THE
PROPERTY IS A RELEVANT FACT WHICH SHOULD HAVE APPROPRIATE
CONSIDERATION," WE HAVE BEEN CAREFUL TO POINT OUT THAT "THE COURT HAS
NOT DECIDED THAT THE COST OF REPRODUCTION FURNISHES AN EXCLUSIVE TEST"
AND IN THAT RELATION WE HAVE "EMPHASIZED THE DANGER IN RESTING
CONCLUSIONS UPON ESTIMATES OF A CONJECTURAL CHARACTER."  LOS ANGELES
GAS CO. V. RAILROAD COMMISSION, SUPRA, P. 307.  AND IN THE LOS ANGELES
CASE, WITH THE EVIDENCE BEFORE US WHICH HAD BEEN TAKEN BY THE
COMMISSION AND BY THE DISTRICT COURT, WE HELD THAT ON THAT EVIDENCE IT
DID NOT APPEAR TO BE "UNFAIR TO THE COMPANY, IN FIXING RATES FOR THE
FUTURE, TO TAKE THE HISTORICAL COST AS FOUND BY THE COMMISSION AS
EVIDENCE OF THE VALUE OF THE COMPANY'S STRUCTURAL PROPERTY AT THE TIME
OF THE RATE ORDER."  ID., P. 309.  IN THE INSTANT CASE WE CANNOT SAY
THAT THE COMMISSION IN TAKING HISTORICAL COST AS THE RATE BASE WAS
MAKING A FINDING WITHOUT EVIDENCE AND THEREFORE ARBITRARY. 

THE DECISIONS CITED BY RESPONDENT DO NOT REQUIRE A DIFFERENT
CONCLUSION.  IN NORTHERN PACIFIC RY. CO. V. DEPARTMENT OF PUBLIC WORKS,
268 U.S. 39, 43-45, WE SAID THAT THE COMMISSION'S ACTION IN REDUCING
RATES BY AN ORDER DEPENDENT WHOLLY "UPON A FINDING MADE WITHOUT
EVIDENCE" OR "UPON A FINDING MADE UPON EVIDENCE WHICH CLEARLY DOES NOT
SUPPORT IT" IN THE FACE OF UNCHALLENGED EVIDENCE OF PROBATIVE VALUE
SHOWING THAT THE RATES WERE ALREADY CONFISCATORY, WAS AN ARBITRARY ACT
AND A DENIAL OF DUE PROCESS.  IN SO RULING, WE FULLY RECOGNIZED THE
PRINCIPLE THAT "MERE ERROR IN REASONING UPON EVIDENCE INTRODUCED" DOES
NOT INVALIDATE AN ORDER.  IN CHICAGO, M. & ST. P. RY. CO. V. PUBLIC
UTILITIES COMM'N, 274 U.S. 344, THE IDAHO COMMISSION AND THE STATE
COURT HAD REFUSED "TO CONSIDER THE EVIDENCE INTRODUCED BY THE CARRIERS
TO SHOW THAT THE RATES IN QUESTION ARE TOO LOW AND CONFISCATORY."  IN
WEST V. CHESAPEAKE & POTOMAC TELEPHONE CO., 295 U.S. 662, UPON WHICH
THE DISTRICT COURT RELIED, THE COURT TOOK THE VIEW THAT THE COMMISSION
HAD BASED ITS ACTION UPON THE APPLICATION OF "GENERAL COMMODITY INDICES
TO A CONGLOMERATE OF ASSETS CONSTITUTING A UTILITY PLANT," AND HAD
RESORTED, ON ACCOUNT OF THE WIDE VARIATION OF RESULTS CAUSED BY THE USE
OF DIFFERENT INDICES, TO WHAT THE COURT DESCRIBED AS A "RULE OF THUMB
CORRECTIVE" BY "WEIGHTING THE SEVERAL INDICES UPON A PRINCIPLE KNOWN
ONLY TO ITSELF," AND HAD SUBSTITUTED THAT SORT OF CALCULATION "FOR SUCH
FACTORS AS HISTORICAL COST AND COST OF REPRODUCTION."  IN THAT VIEW,
THE COURT THOUGHT THAT THE COMMISSION HAD ACTED ARBITRARILY, AND HENCE
THAT ITS ORDER FELL WITHIN THE PRINCIPLE OF THE NORTHERN PACIFIC CASE. 
NO SUCH PROCEDURE APPEARS HERE.  IN ST. LOUIS & O'FALLON RY. CO. V.
UNITED STATES, 279 U.S. 461, THE COURT WAS NOT DEALING WITH THE ORDER
OF A STATE COMMISSION, OR WITH A QUESTION OF DUE PROCESS, BUT WITH THE
COMMAND OF CONGRESS ADDRESSED TO THE INTERSTATE COMMERCE COMMISSION IN
RELATION TO ITS VALUATIONS OF RAILWAY PROPERTY.  THE COURT CONSTRUED
THAT COMMAND AND FOUND THAT IT HAD NOT BEEN OBEYED. 

4.  THE CONTENTION THAT THE COMMISSION FAILED TO FIND THE FAIR VALUE
OF RESPONDENT'S PROPERTY PRESENTS SUBSTANTIALLY THE SAME QUESTION IN
ANOTHER FORM.  WHAT THE COMMISSION FOUND APPEARS BY ITS OWN OPINION. 
THE COURT BELOW WAS BOUND TO GO TO THAT OPINION TO ASCERTAIN THE
COMMISSION'S FINDINGS.  THE COMMISSION SPECIFICALLY FOUND WHAT IT
CONSIDERED TO BE THE RATE BASE.  39 CAL. R. COM., P. 76.  THE
COMMISSION FOUND THAT RATE BASE TO BE REASONABLE.  ID., P. 77, NOTE. 
THE IMPORT OF ITS OPINION IS THAT THE RATE BASE REPRESENTED THE
COMMISSION'S CONCLUSION AS TO THE VALUE WHICH SHOULD BE PLACED UPON
RESPONDENT'S PROPERTY FOR THE PURPOSE OF FIXING RATES.  IT WAS UPON
THAT VALUATION THAT THE COMMISSION DISTINCTLY RULED THAT THE RATES IT
ESTABLISHED WOULD "ASSURE THE COMPANY A FAIR RETURN ON ITS
PROPERTIES."  RESPONDENT WAS ENTITLED TO CONTEST THE VALUE THUS PLACED
UPON ITS PROPERTIES, OR ANY PART OF THEM, TO INSIST THAT THE VALUE
TAKEN AS THE RATE BASE WAS TOO LOW, AND THAT IN CONSEQUENCE THE
PRESCRIBED RATES WERE CONFISCATORY.  THAT WAS THE ISSUE UPON WHICH THE
COURT BELOW SHOULD HAVE PASSED.  BUT RESPONDENT CANNOT SUCCESSFULLY
CONTEND THAT IT WAS NOT HEARD BY THE COMMISSION, THAT THE EVIDENCE
RESPONDENT OFFERED WAS NOT RECEIVED AND CONSIDERED, AND ITS COMPETENCY
AND WEIGHT DETERMINED BY THE COMMISSION, OR THAT THE COMMISSION DID NOT
PLACE ITS VALUATION UPON THE PROPERTY AND FIX THE RATES UPON THE BASIS
OF THAT VALUATION.  RESPONDENT UTTERLY FAILS TO SHOW THAT IN THE
PROCEDURE OF THE COMMISSION IT WAS DENIED DUE PROCESS OF LAW. 

5.  THERE IS A FURTHER CONTENTION AS TO THE BURDEN OF PROOF.  BUT THE
APPLICABLE RULE IS CLEAR.  RESPONDENT IS IN A FEDERAL COURT COMPLAINING
OF THE CONSTITUTIONAL INVALIDITY OF STATE-MADE RATES AND RESPONDENT IS
HELD TO THE BURDEN OF SHOWING THAT INVALIDITY BY CONVINCING PROOF.  LOS
ANGELES GAS CO. V. RAILROAD COMMISSION, SUPRA, P. 305; LINDHEIMER V.
ILLINOIS BELL TELEPHONE CO., SUPRA, P. 169; DAYTON POWER & LIGHT CO. V.
PUBLIC UTILITIES COMM'N, 292 U.S. 290, 298. 

RESPONDENT SUGGESTED IN THE ARGUMENT AT BAR THAT THE COURT SHOULD
DIRECT THE EVIDENCE TO BE SENT UP FOR THE PURPOSE OF DETERMINING THE
POINTS PRESENTED ON THIS APPEAL.  WE SEE NO SUFFICIENT REASON FOR THAT
COURSE.  THE PARTIES AGREED UPON THE RECORD TO BE SUBMITTED. 

THE MAIN ISSUE IN THIS LITIGATION IS WHETHER THE RATES AS FIXED BY
THE COMMISSION'S ORDER ARE CONFISCATORY.  THE DISTRICT COURT DID NOT
DETERMINE THAT ISSUE.  THE DISTRICT COURT SHOULD DETERMINE IT.  THE
DECREE IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN
CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  "SEC.  32.  POWER TO CHANGE UNJUST RATES.  POWER TO FIX NEW
RATES.  PRESERVATION OF ADEQUATE SERVICE.  (A) WHENEVER THE COMMISSION,
AFTER A HEARING HAD UPON ITS OWN MOTION OR UPON COMPLAINT, SHALL FIND
THAT THE RATES, FARES, TOLLS, RENTALS, CHARGES OR CLASSIFICATIONS, OR
ANY OF THEM, DEMANDED, OBSERVED, CHARGED OR COLLECTED BY ANY PUBLIC
UTILITY FOR ANY SERVICE OR PRODUCT OR COMMODITY, OR IN CONNECTION
THEREWITH, INCLUDING THE RATES OR FARES FOR EXCURSION OR COMMUTATION
TICKETS, OR THAT THE RULES, REGULATIONS, PRACTICES OR CONTRACTS, OR ANY
OF THEM, AFFECTING SUCH RATES, FARES, TOLLS, RENTALS, CHARGES OR
CLASSIFICATIONS, OR ANY OF THEM, ARE UNJUST, UNREASONABLE,
DISCRIMINATORY OR PREFERENTIAL, OR IN ANY WISE IN VIOLATION OF ANY
PROVISION OF LAW, OR THAT SUCH RATES, FARES, TOLLS, RENTALS, CHARGES OR
CLASSIFICATIONS ARE INSUFFICIENT, THE COMMISSION SHALL DETERMINE THE
JUST, REASONABLE OR SUFFICIENT RATES, FARES, TOLLS, RENTALS, CHARGES,
CLASSIFICATIONS, RULES, REGULATIONS, PRACTICES OR CONTRACTS TO BE
THEREAFTER OBSERVED AND IN FORCE, AND SHALL FIX THE SAME BY ORDER AS
HEREINAFTER PROVIDED." 

FN2  THE OPINION OF THE COMMISSION STATES THAT "IN ALL, 81 EXHIBITS
WERE INTRODUCED PRESENTING IN GREAT DETAIL THE UNDERLYING DATA OF THIS
PROCEEDING, AND 3729 PAGES OF TESTIMONY AND ARGUMENT WERE TRANSCRIBED. 
MANY WITNESSES TESTIFIED UPON VARIOUS ISSUES PERTAINING TO A GENERAL
RATE CASE."  THE OPINION LISTS THE WITNESSES ON BOTH SIDES.  39 CAL. R.
COM., PP. 51, 52. 

FN3  "DURING ITS ENTIRE HISTORY IN ESTABLISHING REASONABLE RATES FOR
UTILITIES SIMILAR TO THIS COMPANY, TO DETERMINE A PROPER RATE BASE THIS
COMMISSION HAS USED THE ACTUAL OR ESTIMATED HISTORICAL COSTS OF THE
PROPERTIES UNDEPRECIATED, WITH LAND AT THE PRESENT MARKET VALUE. 
CONSISTENT WITH THIS, IT HAS USED THE SINKING FUND METHOD TO DETERMINE
THE ALLOWANCE FOR DEPRECIATION TO BE INCLUDED IN OPERATING EXPENSES. 

"THIS HISTORICAL METHOD HAS DOMINATED THE COMMISSION'S FINDINGS FOR
SEVERAL PRINCIPAL REASONS.  IT IS WELL GROUNDED UPON ESTABLISHED FACTS,
IS NOT SUBJECT TO THE VAGARIES OF PET THEORIES, UNLIMITED IMAGINATION
AND ABRUPT FLUCTUATION OF CURRENT PRICES AND PASSING CONDITIONS, AND
THEREFORE INDICATES A TRUER MEASURE OF VALUE UPON WHICH, THROUGH THE
APPLICATION OF RATES, A RETURN MAY BE ALLOWED TO REIMBURSE THE OWNER
FOR HIS ENTERPRISE AND INSURE THE INTEGRITY OF HIS CAPITAL HONESTLY AND
PRUDENTLY INVESTED.  AT THE SAME TIME IT PREVENTS UNWARRANTED DEMANDS
UPON THE CONSUMER THROUGH THE PROJECTIONS OF FUTURE RATES ON EPHEMERAL
VALUES AND STABILIZES RATES SO THAT ECONOMIC SHOCKS FROM SUCH CHANGES
ARE REDUCED TO A MINIMUM. 

"IT IS AN ECONOMICAL PROCEDURE, WHERE THE BOOKS OF THE COMPANIES ARE
REASONABLY WELL KEPT, AS OBTAINS IN PRACTICALLY ALL OF THE MAJOR
UTILITIES OF THIS STATE, FULL COMPLIANCE WITH WHICH WILL PREVENT
UNWARRANTED EXPENDITURES OF MONEY BY THE COMMISSION, THE PUBLIC AND THE
COMPANY, WHICH INURES TO THE BENEFIT OF BOTH THE CONSUMERS AND THE
UTILITY.  IT IS A MORE RAPID PROCEDURE INSURING QUICKER COMPLIANCE WITH
NECESSITIES AS THEY ARISE." 

MR. JUSTICE BLACK CONCURS IN THE REVERSAL OF THE DECREE. 

MR. JUSTICE SUTHERLAND TOOK NO PART IN THE CONSIDERATION AND DECISION
OF THIS CASE. 

MR. JUSTICE BUTLER, DISSENTING. 

THE DISTRICT COURT HELD THAT THE COMMISSION REFUSED TO CONSIDER THE
COMPANY'S EVIDENCE OF THE COST OF REPRODUCTION AND FAILED TO FIND THE
VALUE OF THE PROPERTY USED TO FURNISH THE GAS COVERED BY THE CHALLENGED
RATES.  ON THAT BASIS OF FACT, IT WAS BOUND BY OUR DECISIONS TO SET
ASIDE THE ORDER AS REPUGNANT TO THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.  FN1 

THIS COURT HOLDS THAT THE COMMISSION DID CONSIDER THE COST OF
REPRODUCTION AND THAT ERROR, IF ANY, IN APPRECIATION OF THAT ITEM OF
EVIDENCE WOULD NOT BE A DENIAL OF DUE PROCESS.  BUT AS TO WHETHER THE
COMMISSION FOUND OR DID NOT FIND VALUE, THE OPINION IS NOT CLEAR.  IT
STATES THAT THE COMMISSION "SPECIFICALLY FOUND WHAT IT CONSIDERED TO BE
THE RATE BASE," FOUND "THAT RATE BASE TO BE REASONABLE," AND THAT "THE
IMPORT OF ITS OPINION IS THAT THE RATE BASE REPRESENTED THE
COMMISSION'S CONCLUSION AS TO THE VALUE WHICH SHOULD BE PLACED UPON
RESPONDENT'S (APPELLEE'S) PROPERTY FOR THE PURPOSE OF FIXING RATES." 
FN2  IF THE DECISION GOES ON THE GROUND THAT THE COMMISSION FOUND AND
BASED ITS ORDER ON THE VALUE OF THE COMPANY'S PROPERTY, IT RESTS ON A
FUNDAMENTAL FACT WITHOUT SUPPORT IN THE RECORD AND CONTRARY TO THE
SPECIAL MASTER'S OPINION AND THE DISTRICT COURT'S FINDING, WHICH
APPELLANTS DO NOT HERE CHALLENGE.  IF THE DECISION GOES ON THE GROUND
THAT THE COMMISSION BASED ITS DETERMINATION UPON HISTORICAL COST, THEN
IT IS DIRECTLY CONTRARY TO OUR EARLIER DECISIONS, AND REVERSES THE
LOWER COURT FOR DOING WHAT THEY REQUIRED IT TO DO - ENTER A DECREE
SETTING ASIDE THE ORDER AS HAVING BEEN MADE WITHOUT PROCEDURAL DUE
PROCESS OF LAW. 

AS TO VALUE.  - SINCE BY LEGISLATION FIXING THEIR CHARGES, PUBLIC
UTILITIES ARE COMPELLED TO USE THEIR PROPERTIES IN THE SERVICE OF THE
PUBLIC, DUE PROCESS OF LAW REQUIRES THAT THE RATES PRESCRIBED SHALL BE
SUFFICIENT TO YIELD THEM JUST COMPENSATION; I.E., REASONABLE RATES OF
RETURN UPON THE VALUE OF THEIR PROPERTIES.  FN3  THE VALUE TO BE
ASCERTAINED IS THE MONEY EQUIVALENT OF THE PROPERTY, THE AMOUNT TO
WHICH THE OWNER WOULD BE ENTITLED UPON EXPROPRIATION.  FN4  IT IS
ELEMENTARY THAT COST IS NOT THE MEASURE OF VALUE.  FN5 

IN SMYTH V. AMES, (1898) 169 U.S. 466, THE COURT SAID (P. 546):  "WE
HOLD, HOWEVER, THAT THE BASIS OF ALL CALCULATIONS AS TO THE
REASONABLENESS OF RATES TO BE CHARGED BY A CORPORATION MAINTAINING A
HIGHWAY UNDER LEGISLATIVE SANCTION MUST BE THE FAIR VALUE OF THE
PROPERTY BEING USED BY IT FOR THE CONVENIENCE OF THE PUBLIC.  AND IN
ORDER TO ASCERTAIN THAT VALUE, THE ORIGINAL COST OF CONSTRUCTION, THE
AMOUNT EXPENDED IN PERMANENT IMPROVEMENTS, THE AMOUNT AND MARKET VALUE
OF ITS BONDS AND STOCK, THE PRESENT AS COMPARED WITH THE ORIGINAL COST
OF CONSTRUCTION, THE PROBABLE EARNING CAPACITY OF THE PROPERTY UNDER
PARTICULAR RATES PRESCRIBED BY STATUTE, AND THE SUM REQUIRED TO MEET
OPERATING EXPENSES, ARE ALL MATTERS FOR CONSIDERATION, AND ARE TO BE
GIVEN SUCH WEIGHT AS MAY BE JUST AND RIGHT IN EACH CASE.  WE DO NOT SAY
THAT THERE MAY NOT BE OTHER MATTERS TO BE REGARDED IN ESTIMATING THE
VALUE OF THE PROPERTY.  WHAT THE COMPANY IS ENTITLED TO ASK IS A FAIR
RETURN UPON THE VALUE OF THAT WHICH IT EMPLOYS FOR THE PUBLIC
CONVENIENCE.  ON THE OTHER HAND, WHAT THE PUBLIC IS ENTITLED TO DEMAND
IS THAT NO MORE BE EXACTED FROM IT FOR THE USE OF A PUBLIC HIGHWAY THAN
THE SERVICES RENDERED BY IT ARE REASONABLY WORTH."    IN MINNESOTA RATE
CASES, (1913) 230 U.S. 352, THE COURT SAID (P. 434):  "THE BASIS OF
CALCULATION IS THE 'FAIR VALUE OF THE PROPERTY' USED FOR THE
CONVENIENCE OF THE PUBLIC....  THE ASCERTAINMENT OF THAT VALUE IS NOT
CONTROLLED BY ARTIFICIAL RULES.  IT IS NOT A MATTER OF FORMULAS, BUT
THERE MUST BE A REASONABLE JUDGMENT HAVING ITS BASIS IN A PROPER
CONSIDERATION OF ALL RELEVANT FACTS....  (P. 454.)  IT IS CLEAR THAT IN
ASCERTAINING THE PRESENT VALUE WE ARE NOT LIMITED TO THE CONSIDERATION
OF THE AMOUNT OF THE ACTUAL INVESTMENT....  AS THE COMPANY MAY NOT BE
PROTECTED IN ITS ACTUAL INVESTMENT, IF THE VALUE OF ITS PROPERTY BE
PLAINLY LESS, SO THE MAKING OF A JUST RETURN FOR THE USE OF THE
PROPERTY INVOLVES THE RECOGNITION OF ITS FAIR VALUE IF IT BE MORE THAN
ITS COST.  THE PROPERTY IS HELD IN PRIVATE OWNERSHIP AND IT IS THE
PROPERTY, AND NOT THE ORIGINAL COST OF IT, OF WHICH THE OWNER MAY NOT
BE DEPRIVED WITHOUT DUE PROCESS OF LAW...." 

THE PRINCIPLE APPLIED IN SMYTH V. AMES HAS LONG GOVERNED WHEREVER
JUDICIAL ACTION HAS BEEN INVOKED TO ENFORCE THE RULE OF JUST
COMPENSATION.  FN6  IT IS BINDING UPON STATE COURTS AND COMMISSIONS. 
BUT THE CALIFORNIA COMMISSION REFUSES TO FOLLOW THE ESTABLISHED RULE. 
IT DOES NOT ASCERTAIN OR USE PRESENT VALUE BUT IN ITS PLACE TAKES
HISTORICAL COST, ACTUAL OR ESTIMATED, AS THE BASIS OF ITS DETERMINATION
IN RATE JUDGING AND RATE MAKING. 

IN RULES, ETC., OF LOS ANGELES GAS & ELECTRIC CORP., (1930) 35 C.R.C.
443, 445, THE COMMISSION SAID:  "THIS COMMISSION FOR MANY YEARS  ...
HAS FIXED RATES TO YIELD UPON THE HISTORICAL OR ACTUAL COST OF THE
PROPERTY, TAKING LAND, HOWEVER, AT CURRENT VALUES AND DEPRECIATION
CALCULATED ON A SINKING FUND BASIS, A RETURN SOMEWHAT IN EXCESS OF THE
COST OF THE MONEY INVESTED IN THE PROPERTY...."  FN7 

SO, IN THE PRACTICE OF THE COMMISSION, ACTUAL COST OF ALL ITEMS OTHER
THAN LAND, WHICH IS INCLUDED AT ITS MARKET VALUE, COMES TO BE CALLED
"HISTORICAL COST," WHICH WHEN FOUND TO BE, OR MODIFIED TO MAKE IT
"REASONABLE," IS CALLED "PRUDENT INVESTMENT" OR "RATE BASE."  FN8  THE
COMMISSION TAKES COST WITHOUT REGARD TO AGE OF THE ITEMS, CHANGES IN
PRICE LEVELS, PRESENT COST TO CONSTRUCT, DEPRECIATION, OBSOLESCENCE OR
USEFULNESS. 

IN THAT CASE, COMMISSIONER DECOTO, DISSENTING, SAID (P. 474):  "THE
CALIFORNIA COMMISSION  ... HAS CLUNG OSTENSIBLY AND THEORETICALLY TO
THE HISTORICAL RATE BASE.  IN REALITY IT HAS GIVEN EFFECT TO THE
DIFFERENT ELEMENTS MENTIONED BY THE FEDERAL COURTS INCLUDING FAIR VALUE
INCLUDING GOING VALUE BY ALLOWING A RATE RETURN BETWEEN 8 PER CENT AND
8 1/2 PER CENT ON HISTORICAL COST IF THERE BE ADDED TO THE HISTORICAL
RATE BASE AN AMOUNT BETWEEN 10 PER CENT AND 12 1/2 PER CENT, THE RATE
BASE SO OBTAINED WILL APPROXIMATE FAIR VALUE INCLUDING GOING VALUE. 
SO, ALSO IF THERE IS DEDUCTED FROM 10 PER CENT TO 12 1/2 PER CENT FROM
A RATE OF RETURN OF 8 PER CENT OR 8 1/2 PER CENT ON AN HISTORICAL COST
RATE BASE, IT IS READILY SEEN THAT THERE IS AN ACTUAL RETURN VARYING
FROM 7 PER CENT TO 7.75 PER CENT UPON FAIR VALUE INCLUDING THEREIN A
REASONABLE AMOUNT FOR GOING VALUE....  DURING THE LAST TWO YEARS THIS
COMMISSION HAS SHOWN A TENDENCY TO CUT THE RATE RETURN UPON AN
HISTORICAL RATE BASE FROM BETWEEN 8 PER CENT AND 8 1/2 PER CENT TO 7
PER CENT, WHICH REDUCED THE RATE OF RETURN UPON A FAIR VALUE BASE TO
6.12 1/2 PER CENT AND 6.3 PER CENT." 

WHILE THE DISSENTING OPINION IS NOT AUTHORITATIVE AND MAY NOT BE
TAKEN TO EXPRESS THE VIEWS OF THE COMMISSION, IT USEFULLY INTERPRETS
AND DISCLOSES THE OPINIONS, ATTITUDE AND PRACTICE OF THE COMMISSION AS
TO ASCERTAINMENT OF THE FIGURE OR BASE ON WHICH IT TESTS EXISTING AND
PRESCRIBES FUTURE RATES. 

IN THE CASE NOW BEFORE US, THE COMMISSION USED THE FORMULA GENERALLY
APPLIED BY IT.  ITS REPORT STATES (39 C.R.C. 49, 57):  "DURING ITS
ENTIRE HISTORY IN ESTABLISHING REASONABLE RATES FOR UTILITIES SIMILAR
TO THIS COMPANY, TO DETERMINE A PROPER RATE BASE THIS COMMISSION HAS
USED THE ACTUAL OR ESTIMATED HISTORICAL COSTS OF THE PROPERTIES
UNDEPRECIATED, WITH LAND AT THE PRESENT MARKET VALUE....  THIS
HISTORICAL METHOD HAS DOMINATED THE COMMISSION'S FINDINGS FOR SEVERAL
PRINCIPAL REASONS.  IT IS WELL GROUNDED UPON ESTABLISHED FACTS, IS NOT
SUBJECT TO THE VAGARIES OF PET THEORIES, UNLIMITED IMAGINATION AND
ABRUPT FLUCTUATION OF CURRENT PRICES AND PASSING CONDITIONS, AND
THEREFORE INDICATES A TRUER MEASURE OF VALUE....  AT THE SAME TIME IT
PREVENTS UNWARRANTED DEMANDS UPON THE CONSUMER THROUGH THE PROJECTIONS
OF FUTURE RATES ON EPHEMERAL VALUES AND STABILIZES RATES SO THAT
ECONOMIC SHOCKS FROM SUCH CHANGES ARE REDUCED TO A MINIMUM." 

THE COMMISSION'S FIGURES SHOW THAT IT DID NOT ATTEMPT OR INTEND TO
FIND VALUE.  HISTORICAL COST WAS NOT FULLY DISCLOSED BY THE COMPANY'S
RECORDS.  A PART WAS ESTIMATED.  THE COMPANY'S TOTAL WAS $104,043,472;
THE COMMISSION FOUND $103,252,004.  FROM HISTORICAL COST ASCERTAINED BY
IT, THE COMMISSION DEDUCTED "DONATIONS IN AID OF CONSTRUCTION,
$34,325," ADDED TO THE REMAINDER "MATERIALS AND SUPPLIES, $638,828,"
AND "WORKING CASH CAPITAL, $773,300," MAKING A TOTAL OF $104,629,807;
AND TOOK THE ROUND FIGURE, $105,000,000 AS RATE BASE.  THE COMMISSION
MADE NO APPRAISAL TO ASCERTAIN VALUE, AS DISTINGUISHED FROM COST
INCURRED FOR THE ORIGINAL PLANT PLUS ADDITIONS AND BETTERMENTS THROUGH
ALL THE YEARS OF OPERATION.  THE EXCLUSION OF "DONATIONS IN AID OF
CONSTRUCTION" IS INCONSISTENT WITH ASCERTAINMENT OF THE VALUE, FOR
OBVIOUSLY THE WORTH OF PROPERTY IS THE SAME WHATEVER THE SOURCE OF THE
TITLE OR THE MONEY WITH WHICH IT WAS PURCHASED.  FN9 

THE REPORT STATES THAT "IN THIS CASE A RETURN WILL BE ALLOWED
SUBSTANTIALLY IN EXCESS OF THE REASONABLY DETERMINED COST OF MONEY IN
ORDER THAT THERE BE PROVIDED A SAFETY FACTOR IN ACCORDANCE WITH THE
PRINCIPLES ADOPTED BY THIS COMMISSION TO PROTECT THE FINANCIAL
STRUCTURE AS WELL AS TO ALLOW FOR INTANGIBLE VALUES NOT COVERED BY
BUSINESS DEVELOPMENT COSTS ALLOWED IN THE OPERATING EXPENSES."  FN10 

THE COMMISSION INCLUDED NOTHING IN ITS RATE BASE TO COVER INTANGIBLE
ELEMENTS OF VALUE.  IT SAID (P. 65):  "EVEN IF GOING VALUE COULD BE
FOUND HERE IN A DEFINITE AMOUNT THERE ARE NO PROPER ELEMENTS OF
PHYSICAL VALUE FOUND TO WHICH IT MIGHT BE RELATED TO OBTAIN FAIR
VALUE.  UNDER THE RECORD THERE IS NO TENABLE DEPRECIATED REPRODUCTION
COST FIGURE AND IT IS WHOLLY INCONSISTENT TO ATTEMPT TO RELATE GOING
VALUE TO UNDEPRECIATED HISTORICAL COST."  THIS STATEMENT CLEARLY AND
RIGHTLY IMPLIES THAT PROPERLY ASCERTAINED REPRODUCTION COST - CONDITION
AND USEFULNESS CONSIDERED - INDICATES ONLY THE VALUE ATTRIBUTABLE TO
THE TANGIBLE ELEMENTS AND THAT TO IT THERE MUST BE ADDED THE AMOUNT
ATTRIBUTABLE TO THE INTANGIBLE ELEMENTS IN ORDER TO FIND THE VALUE OF
BOTH; I.E., THE WORTH OF THE PLANT AS A GOING CONCERN. 

HAVING TAKEN COST OF PHYSICAL ELEMENTS, THE COMMISSION DEEMED IT
INAPPROPRIATE TO ADD ANYTHING TO COVER EXISTING GOING VALUE.  IT MUST
HAVE FOUND THAT IN FACT A LARGE AMOUNT WAS JUSTLY ATTRIBUTABLE TO GOING
VALUE, FOR IT DECLARED (P. 65) THAT IT WOULD ACCREDIT THE COMPANY WITH
"A REASONABLE RECOGNITION OF GOING VALUE THROUGH ALLOWANCE AS AN
OPERATING EXPENSE OF OVER $800,000 A YEAR FOR DEVELOPMENT EXPENSE,
WHICH IS APPROXIMATELY 7 PER CENT ON THE COMPANY'S CLAIMED GOING VALUE
FIGURE, AND BY THE ADDITIONAL ALLOWANCE OF RETURN OVER REASONABLE COST
OF MONEY." 

BUT AN ALLOWANCE IN OPERATING EXPENSES ADDS NOTHING TO VALUE OR TO
RETURN ON VALUE.  IT IS NOT THE EQUIVALENT OF AND MAY NOT BE
SUBSTITUTED FOR INCLUSION OF AN APPROPRIATE AMOUNT TO COVER INTANGIBLE
ELEMENTS.  INCLUSION OF AN AMOUNT FOR DEVELOPMENT EXPENSES INCREASES
DEDUCTIONS FROM GROSS REVENUE AND SO REDUCES ANNUAL NET EARNINGS, IF
ANY, BY THAT AMOUNT, WHEREAS THE ADDITION OF $800,000 CAPITALIZED AT 7
PER CENT WOULD INCREASE BY OVER $11,000,000 THE BASE ON WHICH TO
CALCULATE RETURN.  THE COMMISSION'S TREATMENT OF DONATED PROPERTY,
GOING VALUE AND RATE OF RETURN SHOWS THAT IT DID NOT FIND VALUE, AND
THAT IT INTENDED TO AND DID ADOPT COST FIGURES AS THE BASIS ON WHICH IT
CONDEMNED EXISTING RATES AND ORDERED THE NEW SCHEDULE. 

IMMEDIATELY AFTER ANNOUNCEMENT OF THE REPORT THE COMPANY FILED A
PETITION FOR REHEARING, IN WHICH IT DIRECTLY CHARGED THAT THE
COMMISSION FAILED TO FIND VALUE, "CONSIDERED SOLELY THE HISTORICAL COST
...  AND FAILED TO CONSIDER OR GIVE ANY EFFECT TO THE COST" OF
REPRODUCTION.  THE COMMISSION DENIED REHEARING, BUT WITHOUT IN ANY
MANNER SUGGESTING THAT THESE ALLEGATIONS WERE NOT TRUE. 

IN THIS SUIT, THE COMPLAINT ALLEGES THAT THE COMMISSION FAILED TO
GIVE ANY WEIGHT OR EFFECT TO REPRODUCTION COST; "THAT, IN FIXING THE
RATE BASE, THE COMMISSION GAVE WEIGHT AND EFFECT SOLELY TO THE
HISTORICAL COST"; AND THAT IT PRESCRIBED THE RATES "WITHOUT ANY FINDING
OF FAIR VALUE." 

THE ANSWER IS A STUDIED DENIAL.  THE DEFENDANTS DO DENY THAT THE
COMMISSION FAILED TO GIVE DUE WEIGHT TO COMPETENT EVIDENCE OF
REPRODUCTION COST AND ALLEGE THAT IT GAVE PROPER WEIGHT TO ALL THE
EVIDENCE, INCLUDING EVIDENCE OF REPRODUCTION COST; DENY THAT THE
COMMISSION GAVE WEIGHT SOLELY TO THE HISTORICAL COST; "ADMIT THAT IN
FIXING AND PRESCRIBING RATES  ...  THE COMMISSION DID SO WITHOUT ANY
SPECIFIC FINDING AS TO 'FAIR VALUE'  ...  BUT  ...  ALLEGE THAT IN
SUBSTANCE AND EFFECT THE COMMISSION CONCLUDED AND FOUND IN ITS SAID
DECISION THAT THE FAIR VALUE OF THE USED AND USEFUL PROPERTIES BEFORE
ALLOWING FOR ACCRUED DEPRECIATION DID NOT EXCEED THE SUM FIXED THEREIN
AS A REASONABLE RATE BASE, TO WIT:  $105,000,000." 

THE DISTRICT COURT REFERRED THE CASE TO A SPECIAL MASTER.  THERE WAS
INTRODUCED BEFORE HIM EVIDENCE IN ADDITION TO THAT SUBMITTED TO THE
COMMISSION.  THE RECORD HERE DOES NOT CONTAIN THE EVIDENCE, HIS
FINDINGS OR REPORT.  FN11  BUT THE TRIAL COURT'S OPINION (13 F.SUPP. 
931, 932) STATES THAT, "WHILE THE MASTER EXPRESSED THE OPINION THAT IT
APPEARED PLAIN TO HIM THAT THE COMMISSION USED COST AS THE ONLY MEASURE
OF THE RATE BASE, ITSELF OFFERING NO EVIDENCE ON REPRODUCTION COST AND
REJECTING THAT OFFERED UPON THE SUBJECT BY THE COMPANY, HE PREFERRED
NOT TO PASS UPON THE QUESTION OF LAW THUS PRESENTED, BUT TO EXAMINE THE
WHOLE MATTER ON THE MERITS." 

IN ITS OPINION ON TEMPORARY INJUNCTION (5 F.SUPP.  878, 881), THE
COURT FOUND THAT THE COMMISSION REJECTED THE COMPANY'S ESTIMATES OF
REPRODUCTION COST, DID NOT HAVE ANY DETAILED ESTIMATES OF REPRODUCTION
COST BEFORE IT, AND DID NOT DETERMINE THE REPRODUCTION COST OF THE
PROPERTY.  UPON FINAL SUBMISSION OF THE CASE, THE COURT FOUND THAT THE
COMMISSION ON ITS OWN MOTION INSTITUTED THE INVESTIGATION AND "CAUSED
TO BE INTRODUCED EVIDENCE AS TO THE PAST OR SO-CALLED HISTORICAL COST
...  SOLELY FOR THE PURPOSE OF DETERMINING SUCH PAST OR HISTORICAL COST
AS IN AND OF ITSELF CONSTITUTING THE RATE BASE BY WHICH TO JUDGE THE
REASONABLENESS OF THE PLAINTIFF'S EXISTING RATES AND TO PRESCRIBE NEW
RATES, AND  ...  NEITHER INTRODUCED NOR CAUSED TO BE INTRODUCED ANY
EVIDENCE FOR THE PURPOSE OF DETERMINING THE FAIR VALUE OF THE
PLAINTIFF'S PROPERTY OR ANY EVIDENCE AS TO ITS REPRODUCTION COST....
PLAINTIFF INTRODUCED EVIDENCE AS TO THE REPRODUCTION COST OF ITS SAID
PROPERTY AND AS TO ITS FAIR VALUE."  NO EVIDENCE WAS INTRODUCED TO
REBUT THAT OFFERED BY THE PLAINTIFF. 

"...  ON THE CONCLUSION OF SAID HEARINGS  ...  THE COMMISSION MADE
ITS ORDER  ...  FINDING THAT THE EXISTING RATES OF THE PLAINTIFF WERE
UNJUST AND UNREASONABLE AND PRESCRIBING LOWER RATES WHEREBY THE
PLAINTIFF'S INCOME WOULD BE REDUCED BY APPROXIMATELY $2,100,000
ANNUALLY.  IN SO FINDING ...  THE COMMISSION DECLINED TO GIVE AND DID
NOT GIVE CONSIDERATION OR EFFECT TO THE REPRODUCTION COST  ...  OR TO
THE FAIR VALUE OF SAID PROPERTY, BUT, EXCEPT FOR LANDS CONSTITUTING
LESS THAN 5% IN VALUE OF THE PROPERTY,  ...  TOOK INTO CONSIDERATION
FOR THE PURPOSE OF DETERMINING THE RATE BASE  ...  ONLY THE PAST OR
HISTORICAL COST."  THE COMMISSION APPLIED FOR REHEARING.  ITS PETITION
INDICATES NO CLAIM THAT IT DID FIND VALUE OR THAT THE COURT ERRED IN
HOLDING THAT IT DID NOT; NOR DOES THE PETITION SUGGEST THAT HISTORICAL
COST IS VALUE OR WAS FOUND OR INTENDED BY THE COMMISSION TO BE THE
VALUE OF THE PROPERTY.  INDEED IT SOUGHT A REHEARING ON THE GROUND THAT
THE COURT FAILED TO FIND THE VALUE OF THE PROPERTY. 

THERE IS NOTHING IN THE COMMISSION'S STATEMENT AS TO THE JURISDICTION
OF THIS COURT, RULE 12, OR IN ITS BRIEFS HERE TO INDICATE THAT IT EVER
CLAIMED OR NOW CLAIMS THAT IT FOUND PRESENT VALUE OR THAT HISTORICAL
COST WAS NOT THE SOLE BASIS OF ITS CALCULATIONS.  REVERSAL IS SOUGHT,
NOT ON THE GROUND THAT THE COURT ERRED IN HOLDING THAT THE COMMISSION
FAILED TO FIND THE VALUE OF THE PROPERTY, BUT UPON THE CLAIM THAT THE
COURT IS WITHOUT POWER TO RESTRAIN THE ENFORCEMENT OF THE PRESCRIBED
RATES "UNLESS IT BE FOUND THAT THE ENFORCEMENT OF THE ORDER WILL RESULT
IN THE ACTUAL CONFISCATION OF THE UTILITY'S PROPERTY." 

BUT THAT CONTENTION IS DIRECTLY CONTRARY TO OUR DECISIONS.  IT MAY BE
TAKEN AS CERTAIN THAT IF IN TRUTH IT COULD CLAIM THAT IT DID BASE ITS
DETERMINATION ON PRESENT VALUE, THE COMMISSION WOULD RELY ON THAT FACT,
FOR THEN IT WOULD NOT BE NECESSARY TO HAVE OVERRULED, DISTINGUISHED,
EXPLAINED AWAY, GLOSSED OVER OR DISREGARDED THE LINE OF DECISIONS
RIGHTLY FOLLOWED BY THE LOWER COURT. 

AS TO REPRODUCTION COST.  - IT IS TRUE THAT SOMETIMES ESTIMATES OF
PRESENT COST OF CONSTRUCTION ARE NOT REASONABLY MADE AND ARE THEREFORE
WORTHLESS AS EVIDENCE OF VALUE.  FN12  IT IS ALSO TRUE THAT, WHEN
REASONABLY MADE, ESTIMATES OF REPRODUCTION COST AS OF THE VALUATION
DATE CONSTITUTE GOOD EVIDENCE OF PRESENT VALUE.  FN13    IN MISSOURI EX
REL. S.W. BELL TEL. CO. V. PUBLIC SERVICE COMM'N, 262 U.S. 276, WE SAID
(P. 287): "IT IS IMPOSSIBLE TO ASCERTAIN WHAT WILL AMOUNT TO A FAIR
RETURN UPON PROPERTIES DEVOTED TO PUBLIC SERVICE WITHOUT GIVING
CONSIDERATION TO THE COST OF LABOR, SUPPLIES, ETC., AT THE TIME THE
INVESTIGATION IS MADE.  AN HONEST AND INTELLIGENT FORECAST OF PROBABLE
FUTURE VALUES MADE UPON A VIEW OF ALL THE RELEVANT CIRCUMSTANCES, IS
ESSENTIAL.  IF THE HIGHLY IMPORTANT ELEMENT OF PRESENT COSTS IS WHOLLY
DISREGARDED SUCH A FORECAST BECOMES IMPOSSIBLE.  ESTIMATES FOR TO
MORROW CANNOT IGNORE PRICES OF TO-DAY." 

IN MCCARDLE V. INDIANAPOLIS WATER CO., (1926) 272 U.S. 400, THE COURT
SAID (PAGE 410):  "IT IS WELL ESTABLISHED THAT VALUES OF UTILITY
PROPERTIES FLUCTUATE, AND THAT OWNERS MUST BEAR THE DECLINE AND ARE
ENTITLED TO THE INCREASE.  THE DECISION OF THIS COURT IN SMYTH V. AMES,
169 U.S. 466, 547, DECLARES THAT TO ASCERTAIN VALUE 'THE PRESENT AS
COMPARED WITH THE ORIGINAL COST OF CONSTRUCTION' ARE, AMONG OTHER
THINGS, MATTERS FOR CONSIDERATION.  BUT THIS DOES NOT MEAN THAT THE
ORIGINAL COST OR THE PRESENT COST OR SOME FIGURE ARBITRARILY CHOSEN
BETWEEN THESE TWO IS TO BE TAKEN AS THE MEASURE.  THE WEIGHT TO BE
GIVEN TO SUCH COST FIGURES AND OTHER ITEMS OR CLASSES OF EVIDENCE IS TO
BE DETERMINED IN THE LIGHT OF THE FACTS OF THE CASE IN HAND.  BY FAR
THE GREATER PART OF THE COMPANY'S LAND AND PLANT WAS ACQUIRED AND
CONSTRUCTED LONG BEFORE THE WAR.  THE PRESENT VALUE OF THE LAND IS MUCH
GREATER THAN ITS COST; AND THE PRESENT COST OF CONSTRUCTION OF THOSE
PARTS OF THE PLANT IS MUCH MORE THAN THEIR REASONABLE ORIGINAL COST. 
IN FACT, PRICES AND VALUES HAVE SO CHANGED THAT THE AMOUNT PAID FOR
LAND IN THE EARLY YEARS OF THE ENTERPRISE AND THE COST OF PLANT
ELEMENTS CONSTRUCTED PRIOR TO THE GREAT RISE OF PRICES DUE TO THE WAR
DO NOT CONSTITUTE ANY REAL INDICATION OF THEIR VALUE AT THE PRESENT
TIME...."  FN14  THE PASSAGE WHICH INCLUDES THE STATEMENT QUOTED ON
PAGE 398, ANTE, OF THIS COURT'S DECISION JUST GIVEN, FOLLOWS:
"UNDOUBTEDLY, THE REASONABLE COST OF A SYSTEM OF WATERWORKS, WELL
PLANNED AND EFFICIENT FOR THE PUBLIC SERVICE, IS GOOD EVIDENCE OF ITS
VALUE AT THE TIME OF CONSTRUCTION.  AND SUCH ACTUAL COST WILL CONTINUE
FAIRLY WELL TO MEASURE THE AMOUNT TO BE ATTRIBUTED TO THE PHYSICAL
ELEMENTS OF THE PROPERTY SO LONG AS THERE IS NO CHANGE IN THE LEVEL OF
APPLICABLE PRICES.  AND, AS INDICATED BY THE REPORT OF THE COMMISSION,
IT IS TRUE THAT, IF THE TENDENCY OR TREND OF PRICES IS NOT DEFINITELY
UPWARD OR DOWNWARD AND IT DOES NOT APPEAR PROBABLE THAT THERE WILL BE A
SUBSTANTIAL CHANGE OF PRICES, THEN THE PRESENT VALUE OF LANDS PLUS THE
PRESENT COST OF CONSTRUCTING THE PLANT, LESS DEPRECIATION, IF ANY, IS A
FAIR MEASURE OF THE VALUE OF THE PHYSICAL ELEMENTS OF THE PROPERTY. 
THE VALIDITY OF THE RATES IN QUESTION DEPENDS ON PROPERTY VALUE JANUARY
1, 1924, AND FOR A REASONABLE TIME FOLLOWING.  WHILE THE VALUES OF SUCH
PROPERTIES DO NOT VARY WITH FREQUENT MINOR FLUCTUATIONS IN THE PRICES
OF MATERIAL AND LABOR REQUIRED TO PRODUCE THEM, THEY ARE AFFECTED BY
AND GENERALLY FOLLOW THE RELATIVELY PERMANENT LEVELS AND TRENDS OF SUCH
PRICES." 

THE ESTIMATE OF REPRODUCTION COST THAT THE COMPANY SUBMITTED TO THE
COMMISSION IN THIS CASE IS NOT BEFORE US.  IT IS REFERRED TO IN THE
COMMISSION'S REPORT, BUT IT IS NOT DISCLOSED SUFFICIENTLY TO ENABLE
THIS COURT TO DECIDE WHETHER IT WAS MADE REASONABLY, WAS ADMISSIBLE IN
EVIDENCE OR WAS ENTITLED TO ANY WEIGHT.  THIS COURT MAY NOT SPECULATE
CONCERNING IT.  THE RECORD IN THIS CASE AND EARLIER REPORTS OF THE
COMMISSION ABOVE REFERRED TO COMPEL THE CONCLUSION THAT NO ESTIMATE OF
REPRODUCTION COST AS OF VALUATION DATE WOULD HAVE INFLUENCED THE
COMMISSION TO MODIFY OR ABANDON THE BASIS OF HISTORICAL COST. 

THE COMMISSION WAS BOUND BY OUR DECISIONS TO ASCERTAIN AND CONSIDER
PRESENT COST AS COMPARED WITH ORIGINAL COST OF CONSTRUCTION.  IT
REFUSED TO DO SO.  THE METHOD IT FOLLOWED CONFLICTS WITH FUNDAMENTAL
PRINCIPLES ESTABLISHED HERE IN THAT IT CONDEMNED THE COMPANY'S EXISTING
RATES AS EXCESSIVE AND PRESCRIBED LOWER ONES WITHOUT ANY BASIS OF FACT
TO WARRANT THAT ACTION.  WHEN THE STATE, ACTING THROUGH THE COMMISSION,
SET ASIDE EXISTING RATES AND ORDERED LOWER ONES FOR THE FUTURE, IT
EXERTED POWER TO TAKE, OR TO COMPEL USE OF, PRIVATE PROPERTY FOR
SERVICE OF THE PUBLIC.  DUE PROCESS REQUIRED JUST COMPENSATION - RATES
SUFFICIENT TO YIELD A REASONABLE RATE OF RETURN ON THE VALUE OF THE
PROPERTY USED TO FURNISH THE GAS.  WITHOUT A FINDING OF VALUE IT IS
IMPOSSIBLE TO ASCERTAIN THE REQUIRED AMOUNT.  TO TAKE MERE COST OF
PHYSICAL ELEMENTS, INSTEAD OF TOTAL VALUE, AND TO DEDUCT DEVELOPMENT
EXPENSES FROM REVENUE INSTEAD OF INCLUDING IN VALUE THE AMOUNT FOUND
PROPERLY ATTRIBUTABLE TO INTANGIBLE ELEMENTS AND GOING VALUE, AND THEN,
BECAUSE OF THAT ERROR, TO FIX A RATE OF RETURN ON HISTORICAL COST
GREATER THAN WOULD BE REQUIRED ON VALUE, IS TO LEAVE THE ORDER WITHOUT
KNOWN OR DISCOVERABLE FOUNDATION.  IT IS TO MAKE INDIVIDUAL VIEWS AS TO
WHAT IS JUST SERVE IN PLACE OF THE DEFINITE PRINCIPLES.  THE FORMULA
FOLLOWED BY THE COMMISSION PREVENTS CONSIDERATION OF PRESENT VALUE OR
OF THE ESTIMATED PRESENT COST, IN COMPARISON WITH THE ORIGINAL; I.E.,
THE HISTORICAL COST OF THE PROPERTY.  THE COMMISSION GAVE NO WEIGHT TO
THE COMPANY'S EVIDENCE OF PRESENT COST OF CONSTRUCTION.  IT MADE NO
INVESTIGATION TO ASCERTAIN, DID NOT ATTEMPT TO FIND AND WOULD NOT USE,
PRESENT COST OR PRESENT VALUE.  IT SEEMS TO ME VERY CLEAR THAT, SAVE
MERELY TO REJECT IT AS INADMISSIBLE, THE COMMISSION REFUSED TO PAY ANY
ATTENTION TO THE COMPANY'S EVIDENCE OF REPRODUCTION COST. 

THE COMMISSION HAVING FAILED TO FIND VALUE, OUR DECISIONS REQUIRED
THE DISTRICT COURT TO ENTER THE DECREE APPEALED FROM. 

IN NORTHERN PACIFIC RY. CO. V. DEPT. PUBLIC WORKS (1925), 268 U.S.
39, THE SUPERIOR COURT AND THE SUPREME COURT OF WASHINGTON UPHELD AN
ORDER OF THE STATE COMMISSION REDUCING RAILROAD RATES FOR INTRASTATE
TRANSPORTATION OF LOGS AS AGAINST ATTACK BY THE CARRIERS ON THE GROUNDS
THAT THE ORDER WAS MADE WITHOUT EVIDENCE AND THAT THE RATES WERE
CONFISCATORY.  THIS COURT HELD THE ORDER WOULD DEPRIVE CARRIERS OF
THEIR PROPERTY WITHOUT DUE PROCESS OF LAW, UPON THE SOLE GROUND THAT
THE COMMISSION FOUND COST OF SERVICE WITHOUT ANY EVIDENCE, OR UPON
EVIDENCE THAT DID NOT CLEARLY SUPPORT THE FINDING.  WE SAID (P. 44):
"THE MERE ADMISSION BY AN ADMINISTRATIVE TRIBUNAL OF MATTER WHICH UNDER
THE RULES OF EVIDENCE APPLICABLE TO JUDICIAL PROCEEDINGS WOULD BE
INCOMPETENT, UNITED STATES V. ABILENE & SOUTHERN RY., 265 U.S. 274,
288, OR MERE ERROR IN REASONING UPON EVIDENCE INTRODUCED, DOES NOT
INVALIDATE AN ORDER.  BUT WHERE RATES FOUND BY A REGULATORY BODY TO BE
COMPENSATORY ARE ATTACKED AS BEING CONFISCATORY, COURTS MAY ENQUIRE
INTO THE METHOD BY WHICH ITS CONCLUSION WAS REACHED.  AN ORDER BASED
UPON A FINDING MADE WITHOUT EVIDENCE, CHICGO JUNCTION CASE, 264 U.S.
258, 263, OR UPON A FINDING MADE UPON EVIDENCE WHICH CLEARLY DOES NOT
SUPPORT IT, INTERSTATE COMMERCE COMMISSION V. UNION PACIFIC R. CO., 222
U.S. 541, 547, IS AN ARBITRARY ACT AGAINST WHICH COURTS AFFORD RELIEF. 
THE ERROR UNDER DISCUSSION WAS OF THIS CHARACTER.  IT WAS A DENIAL OF
DUE PROCESS."  THAT DECISION WAS REACHED WITHOUT REGARD TO ANY QUESTION
OF CONFISCATION. 

CHICAGO, M. & ST. P. RY. CO. V. PUBLIC UTILITIES COMM'N, (1927) 274
U.S. 344, PRESENTED THE QUESTION WHETHER AN ORDER OF THE IDAHO
COMMISSION REDUCING RAILROAD RATES FOR INTRASTATE TRANSPORTATION OF
LOGS WOULD DEPRIVE CARRIERS OF THEIR PROPERTY WITHOUT DUE PROCESS OF
LAW.  ON THE CARRIERS' APPEAL TO THE STATE SUPREME COURT, THE ACTION OF
THE COMMISSION WAS UPHELD.  FOLLOWING THE STATE PRACTICE, THE CASE WAS
THERE HEARD ON THE RECORD MADE BEFORE THE COMMISSION.  THE EVIDENCE
INTRODUCED BY THE CARRIERS WAS SUFFICIENT TO WARRANT A FINDING THAT AS
TO THE LINES OF ALL THE CARRIERS, THE INTRASTATE LOG RATES WERE LOW IN
COMPARISON WITH RATES ON OTHER COMMODITIES, AND THAT AS TO TWO OF THE
CARRIERS THEY WERE CONFISCATORY.  BUT THE STATE COURT HELD THE
COMMISSION AUTHORIZED TO REDUCE THE RATES WITHOUT FINDING THEM UNJUST
OR UNREASONABLE.  AND, AS TO THE CARRIERS' INSISTENCE THAT THE
PRESCRIBED RATES WERE CONFISCATORY, IT RULED THAT, EVEN IF THE EVIDENCE
SHOWED EXISTING RATES INSUFFICIENT, THE PRESCRIBED LOWER RATES WOULD
NOT NECESSARILY BE CONFISCATORY, AND SUPPORTED THAT VIEW BY THE
SUGGESTION THAT THE INTRASTATE HAUL FROM FOREST TO SAW MILLS WAS ONLY
ONE STEP IN PRODUCTION AND TRANSPORTATION TO MARKETS IN OTHER STATES. 

WRIT OF CERTIORARI BROUGHT THE CASE HERE.  WE REVERSED THE JUDGMENT
OF THE STATE COURT, AND IN THE OPINION SAID (P. 350):  "BUT, AS APPEARS
FROM THEIR OPINIONS, THE RESPONDENT (COMMISSION) AND THE COURT REFUSED
TO CONSIDER AND GIVE WEIGHT TO THAT EVIDENCE BECAUSE, AS THEY HELD, THE
INTRASTATE LOG RATES WERE NOT TO BE DEALT WITH SEPARATELY BUT WERE TO
BE CONSIDERED IN CONNECTION WITH THE INTERSTATE LUMBER RATES, AND
BECAUSE THE CARRIERS MADE NO SHOWING AS TO THE GAINS OR LOSSES
RESULTING FROM THE INTERSTATE TRANSPORTATION.  THAT CANNOT BE SUSTAINED
...  THIS CASE IS IN PRINCIPLE THE SAME AS NORTHERN PACIFIC V. DEPT.
OF PUBLIC WORKS....  IT IS IMPOSSIBLE TO SUSTAIN THE REFUSAL TO
CONSIDER THE EVIDENCE INTRODUCED BY THE CARRIERS TO SHOW THAT THE RATES
IN QUESTION ARE TOO LOW AND CONFISCATORY.  THE COMMISSION AND THE COURT
ERRED IN HOLDING THAT THE REASONABLENESS OR VALIDITY OF THE INTRASTATE
LOG RATES DEPENDS ON THE AMOUNTS RECEIVED BY PETITIONERS FOR THE
INTERSTATE TRANSPORTATION OF LUMBER.  IT IS CLEAR THAT THE METHODS BY
WHICH RESPONDENT REACHED ITS CONCLUSION WERE ARBITRARY AND CONSTITUTE A
DENIAL OF DUE PROCESS OF LAW." 

IN WEST V. C. & P. TEL. CO., (1935) 295 U.S. 662, THE COMPANY BROUGHT
SUIT IN THE FEDERAL DISTRICT COURT FOR MARYLAND TO SET ASIDE AS
CONFISCATORY AN ORDER OF THE MARYLAND COMMISSION REDUCING TELEPHONE
RATES.  THE CONTROVERSY INVOLVED VALUE, DEPRECIATION EXPENSE, AND
RETURN.  THE COMMISSION MADE NO APPRAISAL OF THE PROPERTY, BUT
ATTEMPTED TO DETERMINE PRESENT VALUE BY TRANSLATING THE DOLLAR VALUE OF
THE PLANT AS IT WAS FOUND IN AN EARLIER CASE, AS OF DECEMBER 31, 1923,
PLUS NET ADDITIONS IN DOLLAR VALUE IN EACH SUBSEQUENT YEAR, INTO AN
EQUIVALENT DOLLAR VALUE AT DECEMBER 31, 1932, ITS THEORY BEING (P.
667):  "VALUE SIGNIFIES IN RATE REGULATION THE INVESTMENT IN DOLLARS ON
WHICH A UTILITY IS ENTITLED TO EARN."  AFTER POINTING OUT FUNDAMENTAL
DEFECTS IN THE COMMISSION'S METHOD OF FINDING VALUE, WE HELD THAT THE
CASE WAS CONTROLLED BY THE PRINCIPLE ANNOUNCED AND APPLIED IN NORTHERN
PACIFIC RY. CO. V. DEPT. PUBLIC WORKS AND CHICAGO, M. & ST. P. RY. CO.
V. PUBLIC UTILITIES COMM'N.  NO DECISION HERE HAS CHALLENGED THE
PRINCIPLE ESTABLISHED BY THESE CASES.  WEST V. C. & P. TEL. CO., SUPRA,
675. 

I CANNOT REFRAIN FROM PROTESTING AGAINST THE COURT'S REFUSAL TO DEAL
WITH THE CASE DISCLOSED BY THE RECORD AND REASONABLY TO ADHERE TO
PRINCIPLES THAT HAVE BEEN SETTLED.  OUR DECISIONS OUGHT TO BE
SUFFICIENTLY DEFINITE AND PERMANENT TO ENABLE COUNSEL USEFULLY TO
ADVISE CLIENTS.  GENERALLY SPEAKING, AT LEAST, OUR DECISIONS OF
YESTERDAY OUGHT TO BE THE LAW OF TODAY. 

I WOULD AFFIRM THE DECREE OF THE DISTRICT COURT. 

FN1  NORTHERN PACIFIC RY. CO. V. DEPT. PUBLIC WORKS, (1925) 268 U.S.
39; CHICAGO, M. & ST. P. RY. V. PUBLIC UTILITIES COMM'N, (1927) 274
U.S. 344; WEST V. C. & P. TEL. CO., (1935) 295 U.S. 662.  SEE ALSO THE
OPINIONS OF THE DISTRICT COURT IN THIS CASE, 5 F.SUPP.  878, 13
F.SUPP.  931 AND 16 F.SUPP.  884. 

FN2  SEE THE COURT'S OPINION, ANTE, P. 400.  IT THERE QUOTES PART OF
A SENTENCE NEAR THE END OF THE COMMISSION'S REPORT:  "ASSURE THE
COMPANY A FAIR RETURN ON ITS PROPERTIES."  (39 C.R.C. 49, 76.)  TAKEN
WITH OTHER PARTS OF THE REPORT, THESE WORDS EMPHASIZE THE COMMISSION'S
PURPOSE NOT TO FIND VALUE. 

FN3  RAILROAD COMMISSION CASES, (1886) 116 U.S. 307, 331; DOW V.
BEIDELMAN, (1888) 125 U.S. 680, 691; GEORGIA RAILROAD & BANKING CO. V.
SMITH, (1888) 128 U.S. 174, 179; CHICAGO, M. & ST. P. RY. CO. V.
MINNESOTA, (1890) 134 U.S. 418, 458; REAGAN V. FARMERS' LOAN & T. CO.,
(1894) 154 U.S. 362, 399; AMES V. UNION PACIFIC RY. CO., (1894) 64 F.
165, 176; SMYTH V. AMES, (1898) 169 U.S. 466, 526, 541, 542, 544, 546. 

FN4  MONONGAHELA NAVIGATION CO. V. UNITED STATES, (1893) 148 U.S.
312, 327; SEABOARD AIR LINE RY. V. UNITED STATES, (1923) 261 U.S. 299,
304; BROOKS-SCANLON CORP. V. UNITED STATES, (1924) 265 U.S. 106, 123;
JACOBS V. UNITED STATES, (1933) 290 U.S. 13, 16-17; OLSON V. UNITED
STATES, (1934) 292 U.S. 246, 255. 

FN5  SMYTH V. AMES, (1898) 169 U.S. 466, 546, 547; WILLCOX V.
CONSOLIDATED GAS CO., (1909) 212 U.S. 19, 52; MISSOURI EX REL. S.W.
BELL TEL. CO. V. PUBLIC SERVICE COMM'N, (1923) 262 U.S. 276, 287. 

FN6  FOR EXAMPLE, SEE: 

SAN DIEGO LAND CO. V. NATIONAL CITY, (1899) 174 U.S. 739, 757; SAN
DIEGO LAND CO. V. JASPER, (1903) 189 U.S. 439, 442; STANISLAUS COUNTY
V. SAN JOAQUIN C. & I. CO., (1904) 192 U.S. 201, 215; KNOXVILLE V.
KNOXVILLE WATER CO., (1909) 212 U.S. 1, 13, 18; WILLCOX V. CONSOLIDATED
GAS CO., (1909) 212 U.S. 19, 41; LINCOLN GAS CO. V. LINCOLN, (1912) 223
U.S. 349, 358; MINNESOTA RATE CASES, (1913) 230 U.S. 352, 434, 454;
MISSOURI RATE CASES, (1913) 230 U.S. 474, 498; DENVER V. DENVER UNION
WATER CO., (1918) 246 U.S. 178, 190; MISSOURI EX REL. S.W. BELL TEL.
CO. V. PUBLIC SERVICE COMM'N, (1923) 262 U.S. 276, 287; BLUEFIELD CO.
V. PUBLIC SERVICE COMM'N, (1923) 262 U.S. 679, 690; DAYTON-GOOSE CREEK
RY. CO. V. UNITED STATES, (1924) 263 U.S. 456, 481; OHIO UTILITIES CO.
V. PUBLIC UTILITIES COMM'N (1925) 267 U.S. 359, 362; BOARD OF COMM'RS
V. N.Y. TEL. CO., (1926) 271 U.S. 23, 31; MCCARDLE V. INDIANAPOLIS
WATER CO., (1926) 272 U.S. 400, 408, 409; UNITED RAILWAYS V. WEST,
(1930) 280 U.S. 234, 253-254; LOS ANGELES GAS CO. V. RAILROAD COMM'N,
(1933) 289 U.S. 287, 305, ET SEQ.; WEST V. C. & P. TEL. CO., (1935) 295
U.S. 662, 671.    ALTON WATER CO. V. ILLINOIS COMMERCE COMM'N, (1922)
279 F. 869, 872; MINNEAPOLIS V. RAND, (1923) 285 F. 818, 827; MOBILE
GAS CO. V. PATTERSON, (1923) 293 F. 208, 214; NEW YORK TELEPHONE CO. V.
PRENDERGAST, (1924) 300 F. 822, 825; SOUTHERN BELL TEL. & TEL. CO. V.
RAILROAD COMM'N, (1925) 5 F.(2D) 77, 91, 92; MIDDLESEX WATER CO. V.
BOARD OF PUBLIC UTILITY COMM'RS, (1926) 10 F.(2D) 519, 533; IDAHO POWER
CO. V. THOMPSON, (1927) 19 F.(2D) 547, 552.    FN7  SEE, E.G.:  RE
COAST VALLEYS GAS & ELECTRIC CO., (1917) 14 C.R.C. 460; SOUTHERN
SIERRAS POWER CO., (1920) 18 C.R.C. 818; SOUTHERN CALIFORNIA EDISON
CO., (1921) 19 C.R.C. 595 AND (1923) 23 C.R.C. 981; SAN JOAQUIN LIGHT &
POWER CORP., (1922) 21 C.R.C. 545; PACIFIC GAS & ELECTRIC CO., (1922)
22 C.R.C. 744; GREAT WESTERN POWER CO., (1923) 22 C.R.C. 814; PACIFIC
TEL. & TEL. CO., (1929) 33 C.R.C. 737. 

FN8  FOR CONVENIENCE THESE PHRASES, "HISTORICAL COST," "ACTUAL COST,"
"PRUDENT INVESTMENT," AND "RATE BASE," WILL BE USED TO MEAN THE FIGURE
PRODUCED BY THE APPLICATION OF THE FORMULA EXPRESSED BY THE COMMISSION
IN RULES, ETC. OF LOS ANGELES GAS & ELECTRIC CORP., (1930) 35 C.R.C.
443, 445, WITHOUT PAUSING TO POINT OUT THAT LAND IS INCLUDED AT PRESENT
VALUE. 

FN9  SAN JOAQUIN CO. V. STANISLAUS COUNTY, 233 U.S. 454, 459; BOARD
OF COMM'RS V. N.Y. TEL. CO., (1926) 271 U.S. 23, 31; SMITH V. ILLINOIS
BELL TEL. CO., (1930) 282 U.S. 133, 158; PUBLIC SERVICE CO. V. PUBLIC
UTILITY COMM'RS, 84 N.J.L. 463, 481; 87 ATL. 651.  SEE ALSO MINNESOTA
RATE CASES, (1913) 230 U.S. 352, 434, 456.  CF. DISSENTING OPINION,
UNITED RAILWAYS V. WEST, (1930) 280 U.S. 234, 257. 

FN10  OUR DECISIONS UNQUESTIONABLY SHOW THAT COST OF DEVELOPMENT OF
THE BUSINESS IS NOT THE MEASURE OF THE AMOUNT TO BE ATTRIBUTED TO
INTANGIBLE ELEMENTS OF THE PROPERTY, OR THE MEASURE OF GOING VALUE. 
DES MOINES GAS CO. V. DES MOINES, (1915) 238 U.S. 153, 168-171; DENVER
V. DENVER UNION WATER CO., (1918) 246 U.S. 178, 191, 192; GALVESTON
ELECTRIC CO. V. GALVESTON, 258 U.S. 388, 395, ET SEQ.; LOS ANGELES GAS
CO. V. RAILROAD COMM'N, (1933) 289 U.S. 287, 314, 315. 

FN11  IT DOES CONTAIN THE COMPLAINT, TO WHICH ARE ATTACHED THE
OPINION AND ORDER OF THE COMMISSION; THE COMPANY'S PETITION FOR
REHEARING AND ORDER DENYING IT; APPELLANTS' ANSWER; THE COURT'S
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE; THE COMMISSION'S
PETITION FOR REHEARING AND AFFIDAVIT IN SUPPORT OF IT; THE COMPANY'S
ANSWER TO THAT PETITION, A SUPPORTING AFFIDAVIT AND ONE REPLYING TO IT;
THE OPINIONS OF THE COURT ON MOTION FOR TEMPORARY INJUNCTION, ON
PERMANENT INJUNCTION, AND ON PETITION FOR REHEARING. 

FN12  MINNESOTA RATE CASES, (1913) 230 U.S. 352, 452; LINDHEIMER V.
ILLINOIS TEL. CO., (1934) 292 U.S. 151, 163, 164. 

FN13  MINNESOTA RATE CASES, (1913) 230 U.S. 352, 452, 455; MISSOURI
EX REL. S.W. BELL TEL. CO. V. PUBLIC SERVICE COMM'N, (1923) 262 U.S.
276, 287, 288; BLUEFIELD CO. V. PUBLIC SERVICE COMM'N, (1923) 262 U.S.
679, 691, 692; STANDARD OIL CO. V. SOUTHERN PACIFIC CO., (1925) 268
U.S. 146, 156; MCCARDLE V. INDIANAPOLIS WATER CO., (1926) 272 U.S. 400,
410; LOS ANGELES GAS CO. V. RAILROAD COMM'N, (1933) 289 U.S. 287, 307. 

FN14  THE OPINION HERE CITES:  STANDARD OIL CO. V. SOUTHERN PACIFIC
CO., (1925) 268 U.S. 146, 157; GEORGIA RY. V. RAILROAD COMM'N, (1923)
262 U.S. 625, 630, 631; BLUEFIELD CO. V. PUBLIC SERVICE COMM'N, (1923)
262 U.S. 679, 691-692; MISSOURI EX REL. S.W. BELL TEL. CO. V. PUBLIC
SERVICE COMM'N, (1923) 262 U.S. 276, 287. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS DISSENT. 
..END :

















MCCART V. INDIANAPOLIS WATER CO., 302 U.S. 419 


NO. 90.  ARGUED DECEMBER 15, 1937.  - DECIDED JANUARY 3, 1938.  - 89
F.(2D) 522, AFFIRMED WITH MODIFICATION. 


1.  A SUIT FOR A PERMANENT INJUNCTION OF STATE-MADE RATES ALLEGED TO
BE CONFISCATORY, NO INTERLOCUTORY INJUNCTION BEING PRAYED, IS PROPERLY
HEARD IN THE DISTRICT COURT BY ONE JUDGE.  P. 420. 

2.  IN A SUIT PRAYING A PERMANENT, BUT NOT A TEMPORARY, INJUNCTION
AGAINST STATE-MADE RATES ALREADY IN EFFECT, UPON THE GROUND OF
CONFISCATION, IT WAS ERRONEOUS TO VALUE THE PLAINTIFF'S PROPERTY AS OF
THE DATE OF DECREE UPON PROOFS TAKEN AND CONCLUDED THIRTY-TWO MONTHS
PREVIOUSLY AND TO DISMISS THE BILL ON THAT VALUATION, WITHOUT REGARD TO
KNOWN ECONOMIC CHANGES, AND THE ACTUAL RESULTS OF THE PLAINTIFF'S
BUSINESS, IN THE INTERVAL.  P. 422. 

MCCART ET AL. V. INDIANAPOLIS WATER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 665, TO REVIEW THE REVERSAL OF A DECREE, 13
F.SUPP.  110, WHICH DISMISSED A BILL TO ENJOIN THE ENFORCEMENT OF WATER
RATES FIXED BY THE PUBLIC SERVICE COMMISSION OF INDIANA. 

PER CURIAM. 

THIS SUIT WAS ORIGINALLY BROUGHT BY THE INDIANAPOLIS WATER COMPANY TO
RESTRAIN THE ENFORCEMENT OF AN ORDER OF THE PUBLIC SERVICE COMMISSION
OF INDIANA FIXING A TEMPORARY SCHEDULE OF RATES PENDING THE
COMMISSION'S INVESTIGATION.  THE DISTRICT COURT OF THREE JUDGES (28
U.S.C. 380) DENIED AN INTERLOCUTORY INJUNCTION AND THE TEMPORARY RATES
BECAME EFFECTIVE.  THE COMMISSION ON DECEMBER 30, 1932, ADOPTED A
DIFFERENT AND PERMANENT SCHEDULE OF RATES TO BE EFFECTIVE JANUARY 1,
1933.  THE COMPANY THEN FILED AN AMENDED AND SUPPLEMENTAL BILL
ASSAILING THOSE RATES AS CONFISCATORY AND INVOKING THE FOURTEENTH
AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES.  AN INTERLOCUTORY
INJUNCTION WAS NOT SOUGHT AND THE CASE WAS PROPERLY HEARD IN THE
DISTRICT COURT BY A SINGLE JUDGE.  INDIANAPOLIS WATER CO. V. MCCART, 13
F.SUPP.  107; SMITH V. WILSON, 273 U.S. 388; STRATTON V. ST. LOUIS
SOUTHWESTERN RY. CO., 282 U.S. 10; HEALY V. RATTA, 289 U.S. 701. 
PURSUANT TO THE COMMISSION'S FINAL ORDER, THE COMPANY FILED THE
SCHEDULE OF RATES AS PRESCRIBED, AND THESE RATES WENT INTO EFFECT ON
JANUARY 1, 1933, AND UNDER THAT ORDER HAVE SINCE BEEN IN EFFECT WITHOUT
LIMITATION OF TIME. 

THE COMMISSION FOUND THAT THE FAIR VALUE OF THE COMPANY'S PROPERTY AS
OF NOVEMBER 1, 1932, WAS NOT LESS THAN $22,500,000 AND THAT THE INCOME
UNDER THE NEW RATES WOULD BE "APPROXIMATELY $1,400,000, OR A RETURN
SLIGHTLY IN EXCESS OF SIX PER CENT" ON THAT AMOUNT.  THE DISTRICT COURT
APPOINTED A SPECIAL MASTER, WHO RECEIVED EVIDENCE BETWEEN MAY 1, 1933,
AND AUGUST 10, 1933, AND HELD A FURTHER AND REOPENED SESSION ON OCTOBER
18, 1933, WHEN THE HEARING OF EVIDENCE WAS CLOSED.  ON APRIL 18, 1934,
THE MASTER OFFERED TO RECEIVE EVIDENCE AS TO THE ACTUAL OPERATIONS OF
THE COMPANY FOR 1933 BUT THE RESPECTIVE PARTIES INFORMED THE MASTER
THAT THEY DID NOT DESIRE TO OFFER ANY SUCH TESTIMONY.  THE MASTER FILED
HIS REPORT ON MAY 18, 1934.  THE APPRAISALS BEFORE THE MASTER WERE MADE
AS OF APRIL 1, 1933.  HE FOUND THE FAIR VALUE OF THE COMPANY'S PROPERTY
TO BE $20,282,143 AS OF THAT DATE AND ALSO AS OF THE TIME OF FILING HIS
REPORT.  HE ESTIMATED AND FOUND THAT THE INCOME APPLICABLE TO RETURN
FOR THE YEAR 1933 AND FOR A REASONABLE TIME THEREAFTER WOULD BE
$1,294,566.51.  HE CONCLUDED THAT THE RATES WERE NOT CONFISCATORY. 

AFTER A HEARING UPON EXCEPTIONS TO THE MASTER'S REPORT, THE DISTRICT
COURT ENTERED A FINAL DECREE ON NOVEMBER 29, 1935, DISMISSING THE
AMENDED AND SUPPLEMENTAL BILL OF COMPLAINT.  13 F.SUPP.  110.  THE
COURT FOUND THAT THE VALUE OF THE COMPANY'S PROPERTY WAS $21,392,821 AS
OF APRIL 1, 1933, AND ALTHOUGH THE EVIDENCE OF VALUE HAD BEEN ADDRESSED
TO THAT DATE, THE COURT WENT FURTHER AND FOUND IN ITS DECREE THAT THIS
AMOUNT "WAS THE FAIR AND REASONABLE VALUE THEREOF AS OF THE TIME OF
FILING THE REPORT OF THE SPECIAL MASTER HEREIN AND AS OF THE DATE OF
THESE FINDINGS AND THAT SUCH VALUE WILL CONTINUE TO BE A FAIR AND
REASONABLE VALUE OF THE PLAINTIFF'S USED AND USEFUL PROPERTY FOR A
REASONABLE TIME IN THE FUTURE."  THE COURT ADOPTED THE FINDING OF THE
MASTER THAT THE INCOME WOULD BE NOT LESS THAN $1,294,566.51 FOR THE
YEAR 1933 AND FOR A REASONABLE TIME THEREAFTER. 

UPON APPEAL, THE CIRCUIT COURT OF APPEALS, REVIEWING THE EVIDENCE
UPON DISPUTED POINTS, FOUND THAT THERE SHOULD BE CERTAIN INCREASES,
AMOUNTING TO $975,437, IN THE RATE BASE, MAKING IT $22,368,258.  THE
COURT OBSERVED THAT FROM APRIL 1, 1933, THE VALUATION DATE, TO THE DATE
OF THE DECREE OF THE DISTRICT COURT, NOVEMBER 29, 1935, THIRTY-TWO
MONTHS HAD INTERVENED; THAT THIS PERIOD WAS NO LONGER ONE FOR PROPHECY
BUT HAD PASSED "FROM THE FIELD OF SPECULATION TO ONE OF EXPERIENCE";
AND THAT EXPERIENCE HAD SHOWN THAT IN THAT PERIOD THERE HAD BEEN "A
CONSTANT AND DEFINITE TREND UPWARD IN COMMODITY VALUES."  89 F.(2D)
522, 525, 526.  WITH RESPECT TO INCOME, THE COURT SAID THAT THE AMOUNT
FOUND BY THE MASTER FOR 1933($1,294,566.51) WAS ABOUT $57,000 HIGHER
THAN THAT INDICATED BY THE TESTIMONY OF ANY WITNESS, BUT THE FINDING
WAS NOT OVERRULED IN VIEW OF THE FAILURE OF THE COMPANY TO TAKE
ADVANTAGE OF ITS OPPORTUNITY TO SHOW THE ACTUAL RECEIPTS AND
DISBURSEMENTS FOR THAT CALENDAR YEAR.  ID., PP. 527, 528.  HOLDING THAT
THE DISTRICT COURT HAD ERRED IN DETERMINING IN ITS DECREE THAT THE
VALUATIONS AS OF APRIL 1, 1933, WERE APPLICABLE TO THE DATE OF THE
DECREE IN NOVEMBER, 1935, WITHOUT TAKING APPROPRIATE ACCOUNT OF CHANGED
CONDITIONS IN THE INTERVAL, THE COURT REVERSED THE DECREE AND REMANDED
THE CAUSE FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THE VIEWS
EXPRESSED IN ITS OPINION.  ID., P. 528. 

PETITIONERS URGE THAT THE COURT OF APPEALS HAS VIRTUALLY REQUIRED THE
DISTRICT COURT TO FIND CONFISCATION.  WE DO NOT THINK THAT THIS IS THE
NECESSARY IMPORT OF THE OPINION.  THE APPELLATE COURT TOOK JUDICIAL
NOTICE OF AN UPWARD TREND IN PRICES BUT DID NOT ATTEMPT TO MAKE A
SPECIFIC APPLICATION OF THAT TREND.  THE REVERSAL OF THE DECREE
REQUIRES A HEARING ANEW IN THE DISTRICT COURT, AND UPON THAT HEARING
ALL QUESTIONS PERTINENT TO THE ISSUE OF CONFISCATION SHOULD BE OPEN. 
THE ECONOMIC CHANGES TO WHICH THE COURT OF APPEALS HAS REFERRED MAY
AFFECT INCOME AS WELL AS VALUES. 

IN THE INSTANT CASE, WE DO NOT HAVE A SITUATION IN WHICH RATES AS
FIXED BY A COMMISSION HAVE BEEN ENJOINED.  HERE THE RATES PRESCRIBED BY
THE COMMISSION'S ORDER HAVE BEEN IN EFFECT ALL THROUGH THIS LITIGATION,
AND ARE NOW IN EFFECT.  A DECREE FOR INJUNCTION COULD OPERATE ONLY AS
TO THE FUTURE.  ANOTHER SPECIAL CIRCUMSTANCE IS THAT THE DECREE OF THE
DISTRICT COURT EXPRESSLY PROVIDED THAT THE VALUE IT FOUND WAS THE VALUE
AS OF THE DATE OF THE DECREE, NOVEMBER 29, 1935, ALTHOUGH THE EVIDENCE
BEFORE THE COURT RELATED TO APRIL 1, 1933.  A DECREE SPEAKING AS OF THE
LATER DATE AND OPERATING THEREAFTER SHOULD HAVE A BASIS IN EVIDENCE. 
ON THE HEARING REQUIRED BY THE CIRCUIT COURT OF APPEALS, THE DISTRICT
COURT WILL BE ABLE TO ASCERTAIN WHAT HAVE BEEN THE ACTUAL RESULTS OF
THE COMPANY'S BUSINESS DURING THE INTERVENING YEARS AND THUS TO BASE
ITS DECREE UPON KNOWN CONDITIONS AS TO THOSE YEARS WHICH MAY SHOW
CLEARLY, IN THE LIGHT OF THE ECONOMIC CHANGES WHICH HAVE OCCURRED,
WHETHER THE PRESCRIBED RATES ARE OR ARE NOT OF A CONFISCATORY CHARACTER
AND WHETHER AN INJUNCTION RESTRAINING THE ENFORCEMENT OF THE RATES
SHOULD BE GRANTED OR DENIED. 

TO LEAVE NO QUESTION AS TO THE AUTHORITY OF THE DISTRICT COURT THUS
FULLY TO REHEAR AND DETERMINE THE CAUSE THE DECREE OF THE CIRCUIT COURT
OF APPEALS IS MODIFIED SO AS TO PROVIDE THAT THE CAUSE IS REMANDED TO
THE DISTRICT COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THE VIEWS
EXPRESSED IN THIS OPINION.  AS THUS MODIFIED, THE DECREE OF THE CIRCUIT
COURT OF APPEALS IS AFFIRMED.  MODIFIED AND AFFIRMED. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION AND DECISION OF
THIS CASE. 

MR. JUSTICE BLACK, DISSENTING. 

I CANNOT AGREE THAT THIS CAUSE BROUGHT HERE BY THE PUBLIC SERVICE
COMMISSION AND THE ATTORNEY GENERAL OF THE STATE OF INDIANA SHOULD BE
SENT BACK TO THE DISTRICT COURT FOR A NEW TRIAL.  AFTER AN EXAMINATION
OF THE RECORD, I AM PERSUADED THAT THE ACTION OF THE COURT OF APPEALS
WAS WRONG AND THAT ITS JUDGMENT SHOULD NOT BE AFFIRMED EITHER AS
RENDERED OR IN ANY MODIFIED FORM.  THE IMPORTANCE OF THE QUESTIONS HERE
INVOLVED LEADS ME TO SET OUT SOME OF MY REASONS FOR THIS BELIEF. 

SIX YEARS AGO (1931) THE CITY OF INDIANAPOLIS FILED A PETITION WITH
THE PUBLIC SERVICE COMMISSION OF INDIANA AGAINST THE INDIANAPOLIS WATER
COMPANY, SEEKING A REDUCTION OF WATER RATES FOR SMALL CONSUMERS.  THE
COMMISSION FIXED THE RATES IN DECEMBER, 1932.  A MASTER APPOINTED BY
THE DISTRICT COURT REPORTED THAT THERE WAS NO CONFISCATION MAY 18,
1934.  THE DISTRICT COURT HELD THERE WAS NO CONFISCATION NOVEMBER,
1935.  THE COURT OF APPEALS FOUND THERE WAS CONFISCATION MARCH, 1937. 
NOW, JANUARY, 1938, THIS COURT SENDS THE CASE BACK TO THE DISTRICT
COURT FOR TRIAL "ANEW."  THE CAUSE GOES BACK TO THE DISTRICT COURT WITH
THE ADMONITION FROM THE COURT OF APPEALS THAT A "GENERAL AND PERSISTENT
RISE IN PRICES SHOULD HAVE BEEN GIVEN EFFECT IN FIXING A FAIR
VALUATION."  AFFIRMANCE OF THE COURT OF APPEALS' DECREE NECESSARILY
APPROVES THIS STATEMENT AND THIS STATEMENT REQUIRES AN INCREASED
VALUATION OF THE COMPANY'S PROPERTY.  EXPERIENCE DEMONSTRATES THAT RATE
CASES CONTINUE TO COME TO THIS COURT UNTIL FINAL DECISIONS ARE
REACHED.  IF THE SECOND TRIAL FOLLOWS THE COURSE OF THE FIRST, THE CASE
SHOULD RETURN TO THIS COURT BY 1943.  HOWEVER, IT WILL NOW BE THE DUTY
OF THE DISTRICT COURT, IN TRYING THE CASE ANEW, TO MAKE A FORECAST AS
TO PROBABLE COMMODITY VALUES COVERING THIS FUTURE PERIOD UP TO 1943. 
FN1  IF ITS FORECAST SHOULD BE WRONG, THE PRESENT CASE WILL BE A
PRECEDENT FOR REVERSING THE CAUSE IN 1943 FOR STILL ANOTHER TRIAL. 
SENDING THE CASE BACK INDICATES THAT THE COURT OF APPEALS WAS RIGHT IN
REVERSING THE DISTRICT COURT. 

I BELIEVE THE COURT OF APPEALS WAS IN ERROR, THAT THE EVIDENCE DID
NOT SHOW CONFISCATION, AND I CANNOT AGREE TO THE ACTION OF THE
MAJORITY.  THIS COURT HAS ANNOUNCED THE DOCTRINE THAT THE STATES HAVE
FULL AND COMPLETE RIGHTS TO REGULATE THE RATES OF LOCAL INTRASTATE
UTILITIES AND THAT THE FEDERAL COURTS CANNOT AND WILL NOT INTERFERE
WITH THIS REGULATION UNLESS THE RATES ARE CONFISCATORY.  FURTHERMORE,
"UPON THAT QUESTION (OF CONFISCATION) THE COMPLAINANT HAS THE BURDEN OF
PROOF AND THE COURT MAY NOT INTERFERE WITH THE EXERCISE OF THE STATE'S
AUTHORITY UNLESS CONFISCATION IS CLEARLY ESTABLISHED."  FN2  THE
JUDICIAL FUNCTION DOES NOT EXTEND BEYOND THE DECISION OF THE
CONSTITUTIONAL QUESTION.  UNLESS, THEREFORE, THE WATER COMPANY
SATISFACTORILY OVERCAME THE PRESUMPTION THAT THE RATE SET BY THE
COMMISSION IS NOT CONFISCATORY, THIS COURT SHOULD NOT INVADE THE
CONSTITUTIONAL SPHERE OF STATE RATE REGULATION.  FN3 

I CANNOT SAY THAT THE EVIDENCE IN THE DISTRICT COURT "COMPELLED A
CONVICTION THAT THE RATE WOULD PROVE INADEQUATE"; FN4  OR THAT THE
RATES WERE "PALPABLY AND GROSSLY UNREASONABLE"; FN5  NOR WAS THE
EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION THAT THE RATES, AS
FIXED BY THE COMMISSION AND REINFORCED BY THE JUDGMENT OF THE MASTER
AND THE DISTRICT COURT, WERE NOT CONFISCATORY.  FN6 

THE MASTER REPORTED THE VALUE OF THE COMPANY'S PROPERTY TO BE
$20,282,143.00 AS OF APRIL 1, 1933.  DECEMBER, 1935, THE DISTRICT COURT
AFTER A REVIEW OF THE EVIDENCE AND THE REPORT OF THE MASTER, REFUSED TO
ENJOIN THE ENFORCEMENT OF THE RATES FIXED BY THE COMMISSION.  THAT
COURT EXCLUDED FROM CONSIDERATION FOR RATE MAKING PURPOSES A GROUP OF
FARMS OWNED BY THE COMPANY AND ESTIMATED BY THE MASTER TO HAVE A VALUE
OF $264,050.00, BUT INCREASED THE MASTER'S ESTIMATE OF THE VALUE OF
"WATER RIGHTS" TO $500,000.00.  EVIDENCE HAVING BEEN GIVEN OF THE
"REPRODUCTION VALUE" OF THE COMPANY'S PROPERTY, THE DISTRICT COURT
INCREASED BY $1,333,333.00 THE MASTER'S "ESTIMATE" OF THE "ESTIMATED
COST" OF LABOR NECESSARY TO "REPRODUCE" THE COMPANY'S PROPERTY; IT
RAISED THE MASTER'S TOTAL "ESTIMATE" OF THIS WHOLLY IMAGINARY
REPRODUCTION FROM $20,282,143.00 TO $21,392,821.00. 

MARCH 23, 1937, SIX YEARS AFTER THE CITY OF INDIANAPOLIS HAD
ORIGINALLY INITIATED ITS EFFORTS TO OBTAIN A REDUCTION IN WATER RATES,
THE COURT OF APPEALS REVERSED AND REMANDED THIS CAUSE.  IN DOING SO, IT
ORDERED THAT THE COMPANY'S INDIANA FARMS BE INCLUDED IN THE TOTAL
VALUATION UPON WHICH THE PEOPLE OF INDIANAPOLIS MUST PAY THE COMPANY AN
INCOME; ADDED $361,308.00 TO THE "ESTIMATE" OF THE MASTER AND DISTRICT
COURT FOR "UNDISTRIBUTED CONSTRUCTION COSTS"; AND RAISED "GOING VALUE"
$250,079.00. 

THE PRINCIPAL REASON GIVEN FOR THE REVERSAL, HOWEVER, WAS THAT
GENERAL PRICE LEVELS HAD RISEN, DURING THE THIRTY-TWO MONTHS
INTERVENING BETWEEN THE DATE AT WHICH VALUATIONS WERE FIXED (APRIL 1,
1933) TO THE DATE OF THE DISTRICT COURT'S DECREE (NOVEMBER 29, 1935). 
LOOKING AT PRICE INDEX FIGURES, THE COURT OF APPEALS DECIDED THAT
PRICES HAD ASCENDED ABOUT TWENTY-FIVE PER CENT. DURING THAT PERIOD, AND
THAT IF THE DISTRICT COURT HAD GIVEN PROPER CONSIDERATION TO THIS
INCREASE IN DETERMINING THE VALUE OF THE COMPANY'S PROPERTY, THAT COURT
WOULD HAVE FOUND THAT THE RATE FIXED BY THE COMMISSION WAS "CLEARLY
CONFISCATORY." 

ONE MONTH AND THREE DAYS, HOWEVER, AFTER THE PRICE INDEX METHOD HAD
BEEN USED BY THE COURT OF APPEALS IN FINDING THE INDIANAPOLIS WATER
RATES CONFISCATORY, THIS COURT, IN THE CASE OF OHIO BELL TELEPHONE CO.
V. PUBLIC UTILITIES COMM'N, 301 U.S. 292, STRUCK DOWN A REDUCED
TELEPHONE RATE FIXED BY THE OHIO PUBLIC SERVICE COMMISSION.  THE PEOPLE
OF OHIO WERE DEPRIVED OF THE BENEFIT OF A REDUCED TELEPHONE RATE
BECAUSE THE DECISION OF THE PUBLIC SERVICE COMMISSION RESTED UPON PRICE
INDICES.  YET, IF THE DISTRICT COURT FOLLOWS THE OPINION OF THE COURT
OF APPEALS WHICH IS HERE AFFIRMED, THE PEOPLE OF INDIANAPOLIS WILL BE
DEPRIVED OF A REDUCED WATER RATE BECAUSE A PRICE INDEX, NOT INTRODUCED
IN EVIDENCE, INDICATED TO THE COURT OF APPEALS THAT THE VALUATION FIXED
BY THE DISTRICT COURT WAS WRONG.  THIS OPINION OF THE COURT OF APPEALS
AS TO VALUE IS NOT REPUDIATED BY THE AFFIRMANCE.  THE MAJORITY DOES NOT
REVERSE THE COURT OF APPEALS' FINDING OF CONFISCATION.    I CANNOT
AGREE THAT THE DISTRICT COURT SHOULD BE REVERSED FOR FAILURE TO
PROPHESY THE EXACT FUTURE COURSE OF COMMODITY PRICES.  THE LEGAL
KNOWLEDGE OF FEW JUDGES IS SUCH THAT THEY CAN ACCURATELY FORESEE AND
FORECAST ALL PRICE FLUCTUATIONS.  IN THE DELAYS INCIDENT TO RATE
LITIGATION IT IS PROBABLY TRUE THAT PRICES WILL FLUCTUATE MANY TIMES
BETWEEN THE BEGINNING OF A LITIGATION AND THE TIME WHEN THE CAUSE IS
WON, LOST OR ABANDONED.    IT HAS NOW BEEN MORE THAN FIVE YEARS SINCE
THE COMMISSION FIXED A VALUATION FOR THIS WATER WORKS PROPERTY AND IT
HAS BEEN MORE THAN FOUR YEARS SINCE THE MASTER REACHED HIS CONCLUSION. 
IF IT REQUIRES FOUR MORE YEARS FOR THIS CASE TO RETURN TO THE COURT OF
APPEALS, THERE CAN BE NO DOUBT BUT THAT SOME PRICE INDEX CAN BE FOUND
TO SHOW OTHER CHANGES IN PRICES.  SUCH A RESULT WILL ADD STILL FURTHER
TO THE CONFUSION AND CHAOS OF JUDICIAL RATE MAKING.  I BELIEVE IT
FORECASTS A DAY WHEN THE PRESENT LONG DELAYS IN RATE REGULATION WILL BE
ENDLESS. 

THE CITY OF INDIANAPOLIS SHOULD NOT BE SUBJECTED TO ANOTHER TRIAL
UNLESS THIS COURT BELIEVES THE RATES TO BE CONFISCATORY.  WHEN THE
DISTRICT COURT TRIES THE CASE ANEW IT WILL BE CONSTRAINED TO FOLLOW THE
DECISION OF THE COURT OF APPEALS THAT A "GENERAL AND PERSISTENT RISE IN
PRICES SHOULD HAVE BEEN GIVEN EFFECT IN FIXING A FAIR VALUATION."  IN
THE MEANTIME, CAN A JUDGE BE FOUND WHO CAN ACCURATELY DIVINE ALL FUTURE
PRICES OF COMMODITIES TO BE USED FOR IMAGINARY REPRODUCTIONS OF THIS
COMPANY'S PROPERTY? 

I BELIEVE THIS CAUSE SHOULD BE BROUGHT TO A CONCLUSION AT THIS TIME. 
FN7  MY BELIEF THAT THE COURT OF APPEALS SHOULD BE REVERSED IS
STRENGTHENED BY A STUDY OF THE RECORD IN THE CASE OF MCCARDLE V.
INDIANAPOLIS WATER CO., 272 U.S. 400, OF WHICH RECORD WE TAKE JUDICIAL
NOTICE.  FN8 

FOR THE FIRST HUNDRED YEARS OF THIS NATION'S HISTORY, FEDERAL COURTS
DID NOT INTERFERE WITH STATE LEGISLATION FIXING MAXIMUM RATES FOR
PUBLIC SERVICES PERFORMED WITHIN THE RESPECTIVE STATES.  THE STATE
LEGISLATURES, ACCORDING TO A CUSTOM WHICH THIS COURT DECLARED HAD
EXISTED "FROM TIME IMMEMORIAL"  FN9  DECIDED WHAT THOSE MAXIMUM RATES
SHOULD BE.  THIS COURT ALSO SAID THAT "FOR PROTECTION AGAINST ABUSES BY
LEGISLATURES THE PEOPLE MUST RESORT TO THE POLLS, NOT TO THE COURTS." 
FN10  IT WAS NOT UNTIL 1890 THAT A DIVIDED COURT FINALLY REPUDIATED ITS
EARLIER CONSTITUTIONAL INTERPRETATION AND DECLARED THAT DUE PROCESS OF
LAW REQUIRES JUDICIAL INVALIDATION OF LEGISLATIVE RATES WHICH THE
COURTS BELIEVE CONFISCATORY.  FN11  THE DISSENTING JUSTICES ADHERED TO
THE LONG EXISTING PRINCIPLE THAT REGULATION OF PUBLIC UTILITIES WAS A
"LEGISLATIVE PREROGATIVE AND NOT A JUDICIAL ONE."  FN12 

FROM THIS DECISION IN 1890, SUPRA, HAS COME THE DOCTRINE THAT THE
FEDERAL COURTS HAVE JURISDICTION TO DETERMINE WHETHER A RATE FIXED BY A
STATE FOR A PURELY LOCAL UTILITY IS CONFISCATORY.  THIS DOCTRINE DOES
NOT PURPORT TO GIVE TO FEDERAL COURTS MORE THAN THE LIMITED
JURISDICTION TO DETERMINE WHETHER A GIVEN STATE RATE IS SO LOW AS TO BE
CONFISCATORY. 

THE DETERMINATION BY THE COURT OF APPEALS THAT THE RATES IN THE
PRESENT CASE ARE CONFISCATORY CAN ONLY BE SUPPORTED, IF AT ALL, BY
GIVING UNDESERVED WEIGHT TO EVIDENCE GIVEN TO SUPPORT THE "REPRODUCTION
COST" THEORY.  THE EXPERIENCE OF THE PEOPLE OF INDIANAPOLIS IN THEIR
EFFORTS TO OBTAIN FAIR AND REASONABLE WATER RATES FROM THIS COMPANY
WHICH HAS LONG HAD A MONOPOLY IN THEIR COMMUNITY, DISCLOSES WHAT
APPEARS TO ME TO BE THE COMPLETE UNRELIABILITY OF THE "REPRODUCTION
COST" THEORY.  WHEREEVER THE QUESTION OF UTILITY VALUATION ARISES
TODAY, IT IS EXCEEDINGLY DIFFICULT TO DISCERN THE TRUTH THROUGH THE
MAZE OF FORMULAS AND THE JUNGLE OF METAPHYSICAL CONCEPTS SOMETIMES
CONCEIVED, AND OFTEN FOSTERED, BY THE INGENUITY OF THOSE WHO SEEK
INFLATED VALUATIONS TO SUPPORT EXCESSIVE RATES.  EVEN THE TESTIMONY OF
ENGINEERS, WITH WIDE EXPERIENCE IN DEVELOPING THIS THEORY AND
EXPOUNDING IT TO COURTS, IS NOT IN AGREEMENT AS TO THE MEANING OF THE
VAGUE AND UNCERTAIN TERMS CREATED TO ADD INVISIBLE AND INTANGIBLE
VALUES TO ACTUAL PHYSICAL PROPERTY.  COMPLETELY LOST IN THE CONFUSION
OF LANGUAGE - TOO FREQUENTLY INVENTED FOR THE PURPOSE OF CONFUSING -
COMMISSIONS AND COURTS PASSING UPON RATES FOR PUBLIC UTILITIES ARE
DRIVEN TO LISTEN TO CONJECTURES, SPECULATIONS, ESTIMATES AND GUESSES,
ALL UNDER THE NAME OF "REPRODUCTION COSTS."  IN THE TESTIMONY OF
PROFESSIONAL WITNESSES EMPLOYED BY THE LITIGANTS, COURTS LISTEN TO
GUESSES ABOUT "GOING VALUE"; "UNDISTRIBUTED CONSTRUCTION COSTS"; "WATER
RIGHTS."  FN13  THIS COURT HAS EVEN SAID, "REPRODUCTION VALUE, HOWEVER,
IS NOT A MATTER OF OUTLAY, BUT OF ESTIMATE, AND  ... PROOF OF ACTUAL
EXPENDITURES ORIGINALLY MADE, WHILE IT WOULD BE HELPFUL, IS NOT
INDISPENSABLE."  FN14  COURTS HAVE GONE FURTHER AND FURTHER AWAY FROM
CONSIDERING COST IN DETERMINING THE VALUE OF UTILITY PROPERTY.  THE
COST OF THIS COMPANY'S PROPERTY APPARENTLY WAS GIVEN LITTLE WEIGHT IN
PREVIOUS LITIGATION WHICH CAME TO THIS COURT.  FN15  THIS COMPANY'S
PROPERTY WAS VALUED BY THIS COURT AT $19,000,000.00 IN THE PRIOR
LITIGATION ALTHOUGH THE COMMISSION'S VALUATION WAS $16,495,000.00.  IT
IS INTERESTING TO NOTE WHAT THIS PROPERTY VALUED AT $19,000,000.00
ACTUALLY COST. 

THE RECORD IN THE MCCARDLE CASE, SUPRA, SHOWED:  THAT THE PROPERTY
WAS BOUGHT AT A JUDICIAL SALE IN 1881 BY THE PRESENT COMPANY AT A COST
OF NOT MORE THAN $535,000.00, THE PURCHASE BEING FINANCED BY A SALE OF
BONDS; THAT APPARENTLY NO CASH WAS PAID FOR THE $500,000.00 FACE VALUE
OF STOCK ISSUED AT THAT TIME; THAT THE MAXIMUM BOOK VALUE OF THE
COMPANY'S ASSETS ON DECEMBER 31, 1923, WAS $9,195,908.00 BUT A WITNESS
CALLED BY THE COMMISSION TESTIFIED THAT THE COMPANY'S RECORDS DISCLOSED
THE ACTUAL BOOK VALUE OF THE PROPERTY USED FOR THE PUBLIC CONVENIENCE
TO BE ONLY $7,967,649.00; THAT FROM 1881 TO DECEMBER 31, 1923,
STOCKHOLDERS' AVERAGE ANNUAL NET PROFITS WERE $189,255.00; THAT
PRACTICALLY ALL OF THE ADDED BOOK VALUE WAS THE RESULT OF ADDITIONAL
INVESTMENTS FINANCED BY BORROWING AND NOT BY INVESTMENT BY
STOCKHOLDERS; THAT NO OTHER INVESTMENT WAS MADE BY THE STOCKHOLDERS IN
THE COMPANY SINCE 1881, BUT IN 1909 A WRITE-UP OF $5,556,071.85 WAS
MADE ON THE BOOKS BY VIRTUE OF WHICH A COMMON STOCK DIVIDEND OF
$4,500,000.00 WAS DECLARED IN 1910, MAKING THE TOTAL COMMON STOCK
$5,000,000.00; THAT THE $5,000,000.00 STOCK WAS THEREAFTER CARRIED ON
THE BOOKS OF THE COMPANY; THAT THE STOCKHOLDERS NOT ONLY PAID NO
ADDITIONAL MONEY FOR STOCK, BUT THAT THE PROFITS MADE BY THE COMPANY
BETWEEN 1881 AND 1932 WERE NOT REINVESTED IN THE COMPANY BUT WERE
SUBSTANTIALLY ALL DRAWN OUT IN DIVIDENDS.  FN16 

THIS COURT FOUND IN THE MCCARDLE CASE THAT THE COMPANY WAS ENTITLED
TO A RATE BASED ON A $19,000,000.00 VALUATION AS OF DECEMBER 31, 1923,
ALTHOUGH THE RECORD INDICATES:  THAT THE TOTAL ACTUAL INVESTMENT MADE
BY THE COMPANY UP TO THAT TIME WAS LESS THAN $9,000,000.00 AND WAS NOT
STOCKHOLDERS' INVESTMENT BUT WAS SUBSTANTIALLY ALL BORROWED MONEY; THAT
THE STOCKHOLDERS APPARENTLY HAD MADE NO INVESTMENT UNLESS (WHICH IS
VERY DOUBTFUL FROM THE RECORD) THEY PAID FOR THE $500,000.00 STOCK IN
1881; AND THAT THE STOCKHOLDERS HAD RECEIVED THE FOLLOWING PERCENTAGE
OF RETURN ON COMMON STOCK ON A $500,000.00 VALUATION FOR THE FIVE YEARS
PRECEDING THIS $19,000,000.00 APPRAISAL: 

1919 ........................................... 69% 

1920 ........................................... 75% 

1921 ........................................... 88% 

1922 ........................................... 96% 

1923 ........................................... 96% 

WHILE IT IS DIFFICULT TO FIND IN THE PRESENT RECORD WHAT ADDITIONAL
INVESTMENTS HAVE BEEN MADE SINCE THE $19,000,000.00 APPRAISAL, IT DOES
APPEAR THAT THE COMMISSION FOUND THAT THE BOOKS OF THE COMPANY SHOWED
AN ADDITIONAL INVESTMENT OF $6,661,292.00.  IF THIS IS ADDED TO THE
1923 BOOK VALUE, IT WOULD APPEAR THAT THERE IS A POSSIBILITY THAT WHEN
THE APPRAISAL IN THIS CAUSE WAS MADE, THERE MAY HAVE BEEN BETWEEN
$13,000,000.00 AND $16,000,000.00 INVESTED THROUGH THE COMPANY'S
BORROWING ACTIVITIES.  BUT THE INDEBTEDNESS KEPT PACE WITH THE
INVESTMENTS AND WAS $13,746,900.00 AT THIS TIME.  THE DISTRICT COURT IS
NOW REVERSED, HOWEVER, BECAUSE THE COURT OF APPEALS FOUND THAT RATES
BASED ON AN OBVIOUSLY INFLATED VALUE OF $21,392,821.00 FIXED BY THE
DISTRICT COURT WOULD CONFISCATE THE PROPERTY OF THE COMPANY'S
STOCKHOLDERS. 

THERE IS A MARKED DISPARITY BETWEEN THE ACTUAL COST OF THIS COMPANY'S
PROPERTY AND ITS IMAGINARY "REPRODUCTION VALUE."  I SHALL COMMENT UPON
A FEW OF MANY REASONS FOR THIS DISPARITY. 

FIRST, THE SO-CALLED "WATER RIGHTS" - THE COMPANY TAKES THE POSITION
THAT WATER RIGHTS SHOULD HAVE BEEN VALUED AT ABOUT $2,000,000.00. 
EXPERT WITNESSES FOR THE CITY VALUED THESE RIGHTS FROM NOTHING TO
$75,000.00, AND EXPERT WITNESSES FOR THE COMPANY AT $1,000,000.00 OR
MORE.  THIS ILLUSTRATION IS TYPICAL OF THE WIDE VARIATIONS IN EXPERT
EVIDENCE ON "REPRODUCTION COST"; IT IS A TYPICAL "ESTIMATE."  THE
COMPANY CLAIMS THAT THE ELEMENT OF GREATEST VALUE IN THE WATER RIGHTS
IS THE "DIVERSION RIGHT."  THIS "DIVERSION RIGHT" IS BASED, IN PART, ON
THE THEORY THAT FOR A LONG NUMBER OF YEARS THE COMPANY HAS DIVERTED
WATER FROM THE WHITE RIVER.  ACCORDING TO ONE THEORY, IT IS CLAIMED
WATER WHICH WOULD OTHERWISE FLOW DOWN STREAM IS DIVERTED BY THE
COMPANY; THAT THE TOM TAGGART PARK IN INDIANAPOLIS MIGHT POSSIBLY BE
INJURED BY THIS DIVERSION (BUT THE CITY HAS NOT COMPLAINED); THAT THE
STREAM OFFERS POSSIBILITIES OF SCENIC BEAUTY IF THERE WERE ADEQUATE
WATER AND IF IT SHOULD BE MADE SUITABLE FOR NAVIGATION BY SMALL
PLEASURE CRAFT.  IT DOES NOT APPEAR THAT THIS FORMULA EVOLVED AS A
RESULT OF ANYONE'S EXPRESSED OR FRUSTRATED DESIRE TO SAIL THIS STREAM. 
FROM THE POSSIBILITY, HOWEVER, THAT THE STREAM COULD BE USED FOR THIS
PURPOSE IF IMAGINARY PEOPLE SHOULD SO DESIRE, AN IMAGINARY DAMAGE TO
THESE IMAGINARY SAILORS IS DISCOVERED.  BASED UPON THIS POTENTIAL
MENACE TO THESE IMAGINARY PEOPLE AND THEIR IMAGINARY DESIRE TO USE THIS
STREAM, AN IMAGINARY VALUE OF $200,000.00 IS SUGGESTED AS THE COST
WHICH THE COMPANY MIGHT INCUR IN DISCHARGING ITS IMAGINARY DUTY TO
IMPROVE THE STREAM FOR THESE IMAGINARY SAILORS. 

IT IS DIFFICULT TO BELIEVE THAT SUCH CONCEPTS OF PROPERTY CAN
ESTABLISH CLEAR PROOF THAT THE CONSTITUTION OF THE UNITED STATES HAS
BEEN VIOLATED.  NOR DO I BELIEVE THAT, EVEN IF THE PEOPLE OF
INDIANAPOLIS AND THE SURROUNDING COMMUNITY HAVE PERMITTED THE WATER
COMPANY TO USE THIS STREAM FOR A PUBLIC SERVICE, THERE HAS BEEN A GRANT
OF A PRESCRIPTIVE PROPERTY RIGHT WHICH CAN BE CAPITALIZED BY THE
COMPANY, IN ORDER TO EXACT HIGHER WATER RATES FROM THE VERY PEOPLE WHO
GRANTED THE PRIVILEGE. 

IF THE COMPANY HAD MADE ACTUAL INVESTMENTS IN ITS PROPERTY BETWEEN
1933 AND 1935, RESORT TO ILLUSORY PROPERTY CONCEPTS WOULD NOT BE
NECESSARY.  CLEARLY, IT WOULD BE ENTITLED TO A REASONABLE RETURN UPON
SUCH ACTUAL INVESTMENT.  SUCH IS NOT THE CASE.  THE ORDER FOR A NEW
TRIAL IS NOT BASED ON A CLAIM THAT THE COMPANY HAS INVESTED EVEN ONE
ADDITIONAL DOLLAR.  IT IS NOT CLAIMED THAT THE COMPANY BOUGHT
ADDITIONAL LAND; ADDED AN INCH TO ANY OF ITS DAMS; EXTENDED ITS
DISTRIBUTION PIPES; IMPROVED ITS FILTRATION SYSTEM; OR PURCHASED ONE
ADDITIONAL PIECE OF PROPERTY. 

THIS COURT HAS FREQUENTLY DECLARED THAT IN REACHING A CONCLUSION AS
TO A REASONABLE RATE, THE PUBLIC MUST BE CONSIDERED AS WELL AS THE
STOCKHOLDERS AND BONDHOLDERS.  FN17 THE DOCTRINE AGAINST CONFISCATORY
RATES IS BASED UPON THE THEORY OF PROTECTING THE RIGHT OF BONDHOLDERS
TO THEIR INTEREST AND THAT OF STOCKHOLDERS TO A FAIR RETURN UPON THE
VALUE OF THEIR ACTUAL INVESTMENTS.  WHILE THIS MATTER HAS BEEN CONFUSED
BY THE "REPRODUCTION COST" THEORY, THE FACT REMAINS THAT, AS APPLIED TO
CORPORATIONS, IT IS THE INTEREST OF THE STOCKHOLDERS AND BONDHOLDERS
WHICH THE DUE PROCESS CLAUSE PROTECTS. 

THE EVIDENCE IN THIS CASE CLEARLY ESTABLISHES THAT THE BONDHOLDERS
HAVE NEVER BEEN, AND ARE NOT NOW, IN ANY JEOPARDY AS TO THEIR INTEREST
PAYMENTS.  IN THE MARGIN APPEARS THE RECORD OF STOCKHOLDERS' DIVIDENDS
SINCE THE $19,000,000.00 VALUATION.  FN18  IN VIEW OF THESE DIVIDENDS
ON THIS STOCK OF UNCERTAIN COST, THESE STOCKHOLDERS WERE IN NO IMMINENT
PERIL BECAUSE OF THE DISTRICT COURT'S VALUATION OF MORE THAN
$21,000,000.00. 

THIS CASE IS AN ILLUSTRATION OF THE ALMOST INSUPERABLE OBSTACLES TO
RATE REGULATION TODAY.  IT INVOLVES A SINGLE COMPANY SUPPLYING WATER TO
A SINGLE COMMUNITY.  IT DOES NOT PRESENT THE DIFFICULTIES OF A FAR
FLUNG UTILITY SYSTEM COVERING MUCH TERRITORY WITH MANY SEPARATE
CORPORATE CREATURES.  NEVERTHELESS, THIS PARTICULAR CASE HAS ALREADY
CONSUMED MORE THAN SIX YEARS AND IS APPARENTLY DESTINED TO REMAIN
SUSPENDED FOR SIX MORE YEARS.  FN19  MORE THAN 2000 PAGES OF RECORDS
AND EXHIBITS APPEAR IN THIS COURT IN THE APPEAL. 

THIS CASE WAS FIRST HEARD BY THE PUBLIC SERVICE COMMISSION.  EVIDENCE
AND ARGUMENTS WERE THERE INTRODUCED AND THE QUESTIONS OF VALUE, RATES,
ETC., WERE FULLY EXPLORED.  THEREAFTER THE COMMISSION WHICH HAD BEEN
SPECIALLY CREATED BY THE STATE OF INDIANA TO INVESTIGATE SUCH CASES
RENDERED ITS DECREE. 

NEXT, THE CASE WAS INVESTIGATED BY A MASTER IN THE DISTRICT COURT. 
THIS COURT HAS ADMONISHED THE LOWER COURT THAT A MASTER SHOULD BE
APPOINTED FOR SUCH PURPOSES.  FN20  EXTENSIVE HEARINGS BEFORE THE
MASTER PRODUCED VOLUMINOUS TESTIMONY AT TREMENDOUS EXPENSE TO THE
LITIGANTS.  WHILE THIS EXPENSE MAY APPEAR ON THE BOOKS OF THE COMPANY
IT WILL ULTIMATELY BE BORNE BY THE CONSUMERS.    AFTER THE MASTER HEARD
THE EVIDENCE, IT WENT TO THE DISTRICT COURT FOR A THIRD REVIEW. 
THEREAFTER IT APPEARED IN THE COURT OF APPEALS WHERE IT WAS AGAIN
REVIEWED.  SINCE IT HAS COME TO THIS COURT, I BELIEVE THAT THE ENDS OF
JUSTICE REQUIRE THAT IT BE CONCLUDED.  HISTORY INDICATES THAT IF IT IS
NOT CONCLUDED, THIS IS NOT LIKELY TO BE THE LAST JOURNEY MADE BY THE
CAUSE FROM INDIANAPOLIS TO WASHINGTON.  LITIGATION COSTS IN RATE
REGULATION TODAY CONSTITUTE A HEAVY BURDEN. 

IN THE MAIN, THE DISPUTE IN THIS CASE, AS IN MOST RATE CASES,
REVOLVES AROUND "INTANGIBLES" AND "REPRODUCTION COSTS." 

"INTANGIBLES," AS EXPOUNDED BY HIRED EXPERTS IN RATE LITIGATIONS,
MIGHT WELL BE DEFINED AS "PROPERTIES" THAT CAN NEITHER BE SEEN NOR
TOUCHED AND WHICH CAN RARELY BE UNDERSTOOD.  THEY CAN HAVE LITTLE
MEANING WHEN APPLIED TO PROPERTY WHICH IS NOT FOR SALE BUT FOR USE. 
THESE PROPERTY CONCEPTS ARE SO UNCERTAIN, TENUOUS AND ELUSIVE THAT NO
TWO WITNESSES GIVE THEM THE SAME VALUE EXCEPT ON OCCASIONS WHEN SEVERAL
WITNESSES HAVE BEEN EMPLOYED BY THE SAME LITIGANT.  FN21 

WITNESSES IN THE PRESENT CASE VARIED AS TO "ORGANIZATION" COSTS FROM
$81,000.00 TO $325,000.00.  EXPERTS DIFFERED AS TO "GOING VALUE"
BETWEEN $1,000,000.00 AND $2,700,000.00, AND ON WATER RIGHTS FROM
NOTHING TO $2,000,000.00. 

SUCH DIFFERENCES ARE NOT EXCEPTIONAL.  THEY OCCUR IN MOST CASES THAT
HAVE REACHED THIS COURT WHICH INVOLVE EXPERT APPRAISAL OF SUCH PHANTOM
CONCEPTS OF PROPERTY. 

THE ESTIMATES MADE BY WITNESSES OF "REPRODUCTION COSTS" OF PIPES FOR
THIS WATER-WORKS SYSTEM STRIKINGLY ILLUSTRATE THIS METHOD OF
VALUATION.  A COMPANY EXPERT ESTIMATED THAT THE REPRODUCTION COST OF
THE COMPANY'S "MAIN" PIPES, AS OF 1923, WAS $7,024,289.00.  IN THIS
GUESS IT WAS ASSUMED THAT THE PIPE HAD A LIFE OF 125 YEARS AND THAT "AS
A MATTER OF FACT, IT DOES NOT WEAR OUT IN USE."  IF THESE PIPES LAST
125 YEARS, THE REPRODUCTION COST THEORY WILL SUBJECT THE WATER
CONSUMERS OF INDIANAPOLIS TO INNUMERABLE INCREASES IN THE PRICE OF
WATER DURING THE NEXT CENTURY.  EXPERTS CAN UNDOUBTEDLY BE FOUND WHO
WILL TESTIFY FROM TIME TO TIME DURING THE COMING CENTURY, THAT THE
HYPOTHETICAL DIGGING UP OF OLD PIPES AND THE HYPOTHETICAL LAYING OF
HYPOTHETICAL NEW PIPES, WILL CONSTANTLY INCREASE THE HYPOTHETICAL
REPRODUCTION VALUE OF PIPES.  IN FACT THE ACTUAL PIPES WILL NOT BE DUG
UP.  THEY WILL CONTINUE TO LIE UNTOUCHED AND AT REST - UNDER THE SOIL. 

UNDER THIS REPRODUCTION COST THEORY, THE CONSTITUTIONAL WATER RATE IN
INDIANAPOLIS MUST FLUCTUATE DURING THE NEXT CENTURY WITH THE PRICE OF
CAST IRON PIPES.  ONE OF THE PRINCIPAL ELEMENTS OF THE SO-CALLED
"REPRODUCTION VALUE" IN THIS CASE IS THIS VERY PIPE.  I DO NOT BELIEVE
THAT THE CONSTITUTIONALITY OF ACTION BY A SOVEREIGN STATE OF THIS UNION
IS DEPENDENT UPON THE MARKET FLUCTUATIONS OF CAST IRON PIPE. 

TESTIMONY WAS GIVEN IN THIS CASE AS TO THE "REPRODUCTION COST" OF A
CANAL USED BY THE WATER COMPANY.  THE STATE OF INDIANA CONSTRUCTED THIS
CANAL FOR NAVIGATION PURPOSES A HUNDRED YEARS AGO.  SOME YEARS AFTER
ITS COMPLETION, IT WAS OBTAINED BY THE WATER WORKS COMPANY OF
INDIANAPOLIS AND, WHILE THE RECORD IS NOT CLEAR, THE PRICE MIGHT HAVE
BEEN AS GREAT AS $35,000.00.  WHEN THE REORGANIZATION OF THE COMPANY
OCCURRED IN 1881, THIS CANAL WAS PLACED UPON THE BOOKS OF THE PRESENT
COMPANY AT $50,000.00.  IT REMAINED ON THE BOOKS AT THIS FIGURE UNTIL
THE WRITE-UP IN 1909 WHICH PRECEDED THE $4,500,000.00 STOCK DIVIDEND. 
AT THAT TIME, IT WAS HOISTED TO $1,773,874.00.  BY 1911, THIS SAME
CANAL APPARENTLY WAS CARRIED AT $2,746,538.00.  IN THE RATE VALUATION
CASE IN 1923, EXPERTS OF THE COMPANY VALUED IT AT MORE THAN
$3,000,000.00.  EXTENSIVE TESTIMONY HAS BEEN GIVEN IN THIS AND THE
MCCARDLE CASE, SUPRA, CONCERNING THE "REPRODUCTION VALUE" OF THIS
CANAL.  THE EXPERT WHO WAS "REPRODUCING" THE CANAL IN 1923 "ASSUMED A
SIMILAR SET OF CONDITIONS TO THOSE EXISTING AT THE TIME THE CANAL WAS
ORIGINALLY CONSTRUCTED."  IN OTHER WORDS, THE WITNESS TOOK HIMSELF AND
HIS STAFF BACK A HUNDRED YEARS TO THE CONDITIONS THAT EXISTED IN
INDIANA AT THE TIME AND PLACE OF THE CONSTRUCTION OF THIS STATE
NAVIGATION CANAL.  THUS PROJECTING HIMSELF BACK INTO HISTORY, HE FOUND
THAT THE WATER CONSUMERS OF INDIANAPOLIS SHOULD PAY TO THE PRESENT
OWNERS OF THE CANAL 6% INCOME ON MORE THAN $3,000,000.00.  I CANNOT
SUBSCRIBE TO THE BELIEF THAT IT WOULD VIOLATE THE CONSTITUTION OF THE
UNITED STATES FOR THE STATE OF INDIANA TO DENY THE COMPANY 6% INCOME ON
A STILL HIGHER VALUATION OF A CANAL THAT NEVER, AT THE OUTSIDE, COST
THE COMPANY MORE THAN $50,000.00.  THE QUESTION IN THE FEDERAL COURTS
IN CONNECTION WITH RATES IS NOT WHAT WOULD BE A REASONABLE RATE TO BE
CHARGED BY SUCH A COMPANY, BUT IT IS LIMITED WHOLLY AND EXCLUSIVELY TO
A DECISION AS TO WHETHER OR NOT A RATE WILL CONFISCATE THE PROPERTY OF
THE COMPANY.  THE EVIDENCE IN THIS CASE IS NOT SO "COMPELLING" AS TO
JUSTIFY A REVERSAL OF THE DISTRICT COURT'S VALUATION, WHICH VALUATION,
ITSELF, NECESSARILY CONTAINS A FINDING OF VALUE FAR IN EXCESS OF WHAT
THIS CANAL COST OR WHAT IT IS REASONABLY WORTH.  IN A DISSENTING
OPINION BY CERTAIN COMMISSIONERS OF THE PUBLIC SERVICE COMMISSION OF
INDIANA IN THE MCCARDLE CASE, THEY SAID: 

"WOULD ANY REASONABLE MAN ENTERTAIN THE PROPOSITION OF DUPLICATING
THE CANAL, IF A NEW WATER WORKS SYSTEM WERE TO BE CONSTRUCTED IN
INDIANAPOLIS?  CERTAINLY NOT. 

"IN THE ESTIMATED RECONSTRUCTION NEW COST THERE IS THE HIGHLY FANCIED
ESTIMATE OF THE COST OF DUPLICATING THE CANAL AS IT WAS CONSTRUCTED
NINETY YEARS AGO.  IT WOULD BE JUST AS GERMANE TO THE ASCERTAINMENT OF
THE ACTUAL VALUE OF THE PETITIONER'S PROPERTY USED AND USEFUL IN THE
PRESENT WATER SERVICE OF INDIANAPOLIS TO INDULGE IN A MAGNIFIED
IMAGINATION OF THE EXPENSE OF REPOPULATING THE CANAL BANKS WITH THE
INDIANS." 

THE STATE OF INDIANA DID NOT APPEAL FROM THE JUDGMENT OF THE DISTRICT
COURT.  WE, THEREFORE, ARE NOT CALLED UPON TO DECIDE WHETHER THE RATES
NOW IN FORCE ARE SO EXTORTIONATE AS TO CONFISCATE THE PROPERTY OF THE
CONSUMERS.  THE COMPANY APPEALED FROM THE DISTRICT COURT SEEKING A
HIGHER VALUATION.  THE COURT OF APPEALS DECIDED THAT THE COMPANY WAS
ENTITLED TO A HIGHER VALUATION. 

AS A REASON FOR REVERSING AND REMANDING THIS CAUSE, THE MAJORITY
OPINION POINTS TO THE FACT THAT NO INTERLOCUTORY INJUNCTION HAS BEEN
ISSUED.  I BELIEVE THAT THE FACT THAT NO INJUNCTION WAS ISSUED AFTER
THE PUBLIC SERVICE COMMISSION OF INDIANA, THE MASTER IN THE FEDERAL
COURT, AND THE DISTRICT COURT HAD ALL FOUND THAT THE RATES WERE NOT
CONFISCATORY, IS BUT AN ADDED REASON WHY THIS COURT SHOULD NOT AGREE TO
OVERTURN THAT FINDING AND SHOULD REVERSE THE CAUSE.  IT WILL BE WHOLLY
IMPOSSIBLE IN MY JUDGMENT FOR ANY TRIAL COURT TO TRY THIS CAUSE AGAIN
FREE FROM THE PLAIN IMPLICATION, IN THE ACTION OF THIS COURT, THAT THE
VALUE OF THE COMPANY'S PROPERTY SHOULD BE FOUND TO BE APPROXIMATELY
TWENTY-FIVE PER CENT. GREATER THAN $22,000,000.00.  HOW CAN ANY TRIAL
COURT IGNORE THE FACT THAT THE COURT OF APPEALS HAS INDICATED A STRONG
BELIEF THAT THE VALUE SHOULD BE RAISED TWENTY-FIVE PER CENT?  HOW CAN
ANY TRIAL COURT ESCAPE THE CONCLUSION THAT AN INJUNCTION SHOULD NOW BE
ISSUED TO PREVENT THE ENFORCEMENT OF THE RATES THAT HAVE BEEN IN
EFFECT? 

THERE IS NOTHING STRANGE OR UNUSUAL ABOUT THE DECREE OF THE DISTRICT
COURT FIXING A VALUE AS OF NOVEMBER 23, 1935, AS WELL AS OF APRIL 1,
1933.  ANY OTHER ACTION BY THE COURT WOULD HAVE GONE DIRECTLY IN THE
TEETH OF THE PLAIN MANDATES OF THIS COURT IN OTHER CASES.  NOT ONLY WAS
THE DISTRICT COURT COMPELLED TO ATTEMPT TO FIND THE VALUE AS OF 1933
AND AS OF 1935, BUT UNDER THE OPINIONS OF THIS COURT IT WAS NECESSARY
THAT IT ATTEMPT TO LIFT THE VEIL OF THE FUTURE, PEER INTO ITS
MYSTERIES, AND DETERMINE THE VALUE OF THE COMPANY'S PROPERTY FOR A
REASONABLE TIME AFTER 1935.  ITS ACTION WAS DICTATED BY THE COMMAND OF
THIS COURT THAT "AN HONEST AND INTELLIGENT FORECAST OF PROBABLE FUTURE
VALUES MADE UPON A VIEW OF ALL RELEVANT CIRCUMSTANCES, IS ESSENTIAL." 
MISSOURI EX REL. S.W. BELL TEL. CO. V. PUBLIC SERVICE COMM'N, 262 U.S.
276, 288.  IF THIS LANGUAGE WAS NOT SUFFICIENT AS AN IMPERATIVE
ADMONITION FOR THE JUDGE TO BECOME A PROPHET, THERE WAS THE STATEMENT
MADE BY THIS COURT IN CONNECTION WITH THE APPRAISAL OF THIS PARTICULAR
COMPANY'S PROPERTY IN MCCARDLE V. INDIANAPOLIS WATER CO., 272 U.S. 400,
408, 409, THAT:  "IT MUST BE DETERMINED WHETHER THE RATES COMPLAINED OF
ARE YIELDING AND WILL YIELD  ...  A REASONABLE RATE OF RETURN ON THE
VALUE OF THE PROPERTY AT THE TIME OF THE INVESTIGATION AND FOR A
REASONABLE TIME IN THE IMMEDIATE FUTURE."  (ITALICS ADDED.)  SURELY IT
IS NOT A GROUND FOR REVERSING THE CAUSE NOW THAT THE DISTRICT COURT HAS
FOLLOWED THESE INSTRUCTIONS.  IS THE MAJORITY OVERRULING THESE CASES? 
MUST THE DISTRICT COURT, WHEN THE CASE IS TRIED "ANEW," OBEY THE FORMER
MANDATES "TO PROPHESY" OR DOES THE OPINION OF THE MAJORITY MEAN IT
SHOULD NOT PROPHESY?  IF THE TRIAL COURT DOES PROPHESY, AND HUMAN
FALLIBILITY BRINGS ERROR INTO THE PROPHECY, WILL THIS COURT AGAIN SIX
YEARS HENCE, REVERSE AND REMAND FOR ANOTHER TRIAL "ANEW"?  I BELIEVE
THIS AFFIRMANCE ADDS ADDITIONAL UNCERTAINTY TO THE EXISTING CHAOS OF
RULES AND FORMULAS CREATED BY JUDICIAL PRONOUNCEMENT IN THE FIELD OF
RATE LITIGATION.  I FURTHER BELIEVE IT TO BE WRONG TO SEND THIS CASE
BACK FOR ANOTHER TRIAL, BECAUSE I BELIEVE THE RECORD AFFIRMATIVELY
SHOWS THAT THE CONSUMERS OF WATER IN INDIANAPOLIS ARE ALREADY COMPELLED
TO PAY AN UNJUSTIFIABLE PRICE FOR THEIR WATER ON ACCOUNT OF PREVIOUS
JUDICIAL OVERVALUATION OF THIS PROPERTY. 

I BELIEVE THE STATE OF INDIANA HAS THE RIGHT TO REGULATE THE PRICE OF
WATER IN INDIANAPOLIS FREE FROM INTERFERENCE BY FEDERAL COURTS.  THE
COURTS DID NOT DENY THIS RIGHT TO THE STATES FOR THE FIRST HUNDRED
YEARS AFTER THE ADOPTION OF THE CONSTITUTION.  FN22  BUT EVEN UNDER THE
COMPARATIVELY RECENT DOCTRINE PURPORTING TO GIVE FEDERAL COURTS
JURISDICTION TO INVALIDATE RATES FIXED BY A STATE, I AM OF THE OPINION
THAT THE FEDERAL COURTS HAVE NO JURISDICTION TO PROCEED IN THIS CAUSE. 
I BASE THIS BELIEF ON THE RECORD WHICH DOES NOT SHOW CLEARLY THAT THE
STOCKHOLDERS OF THE INDIANAPOLIS WATER COMPANY HAVE EVER MADE ANY
SUBSTANTIAL INVESTMENT WHICH COULD BE CONFISCATED.  I FURTHER BELIEVE
THAT THE EVIDENCE DOES NOT CLEARLY ESTABLISH THAT THE RATES FIXED BY
THE COMMISSION WILL FAIL TO PROVIDE AN INCOME AMPLY ADEQUATE TO PAY ALL
INTEREST ON THE COMPANY'S FUNDED DEBT AND PROVIDE FAR MORE THAN A 6%
PROFIT ON ANY ACTUAL VALUE IN EXCESS OF THE BORROWED CAPITAL REMAINING
UNPAID.  I, THEREFORE, BELIEVE THAT THIS COURT SHOULD ORDER THIS CAUSE
DISMISSED FOR WANT OF JURISDICTION OR THAT THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS SHOULD BE REVERSED AND THE OPINION OF THE DISTRICT
COURT DISMISSING THE COMPANY'S BILL SHOULD BE AFFIRMED. 

FN1  MCCARDLE V. INDIANAPOLIS WATER CO., 272 U.S. 400, 408, 409. 

FN2  LOS ANGELES GAS CO. V. RAILROAD COMMISSION, 289 U.S. 287, 305. 

FN3  CHICAGO & G.T. RY. CO. V. WELLMAN, 143 U.S. 339. 

FN4  GALVESTON ELECTRIC CO. V. GALVESTON, 258 U.S. 388, 401. 

FN5  SAN DIEGO LAND CO. V. NATIONAL CITY, 174 U.S. 739, 750. 

FN6  DARNELL V. EDWARDS, 244 U.S. 564, 569. 

FN7  SEE KNOXVILLE V. KNOXVILLE WATER CO., 212 U.S. 1, 16; ALSO
MCCARDLE V. INDIANAPOLIS WATER CO., 272 U.S. 400, 420. 

FN8  NATIONAL FIRE INS. CO. V. THOMPSON, 281 U.S. 331, 336. 

FN9  MUNN V. ILLINOIS, 94 U.S. 113, 133. 

FN10  ID., P. 134; SEE PEIK V. CHICAGO & N.W. RY. CO., 94 U.S. 164,
178. 

FN11  CHICAGO, M. & ST. P. RY. CO. V. MINNESOTA, 134 U.S. 418. 

FN12  ID., BRADLEY, J., DISSENTING, 461. 

FN13  COMPARE: 

"...  AND THE CONCLUSION OF THE COURT BELOW RESTED UPON THAT MOST
UNSATISFACTORY EVIDENCE, THE TESTIMONY OF EXPERT WITNESSES EMPLOYED BY
THE PARTIES."  KNOXVILLE V. KNOXVILLE WATER CO., 212 U.S. 1, AT 18; 

"WHILE THE EXPERTS REPRESENTING THE OPPOSING INTERESTS WERE
THOROUGHLY COMPETENT AND OF HIGH STANDING, THE WIDE DIFFERENCE IN THE
RESULTS REACHED LED THE COMMISSION TO THE 'IRRESISTIBLE CONCLUSION THAT
EACH WAS NOT UNMINDFUL OF HIS CLIENT'S INTEREST.'"  PLYMOUTH ELECTRIC
LIGHT CO. V. STATE, 81 N.H. 1, 4; 120 ATL. 689. 

"TO THESE PERTURBING TENDENCIES, ALL OPERATING TO WEAKEN THE
PERSUASIVE FORCE OF THEIR (EXPERT) OPINIONS, THERE MUST BE ADDED STILL
ANOTHER, THAT OF INTEREST OR BIAS, CONSCIOUS OR UNCONSCIOUS."  DAYTON
POWER & L. CO. V. PUBLIC UTILITIES COMM'N, 292 U.S. 290 AT 299; 

"'SKILLED WITNESSES COME WITH SUCH PREJUDICE ON THEIR MINDS THAT
HARDLY ANY WEIGHT SHOULD BE GIVEN TO THEIR EVIDENCE.'"  APPLETON WATER
WORKS CO. V. RAILROAD COMM'N, 154 WIS. 121, AT 154; 142 N.W. 476. 

FN14  OHIO UTILITIES CO. V. PUBLIC UTILITIES COMM'N, 267 U.S. 359,
362. 

FN15  SEE MCCARDLE V. INDIANAPOLIS WATER CO., SUPRA. 

FN16  THE BOOKS OF THE COMPANY INDICATE THAT THE COMPANY SPENT FOR
ADDITIONS BETWEEN 1881 AND DECEMBER 31, 1923, $8,112,399.00 BUT THE
BOOKS ALSO SHOW THAT ON DECEMBER 31, 1923, THE OUTSTANDING INDEBTEDNESS
OF THE COMPANY ON WHICH IT PAID INTEREST WAS $8,231,000.00.  DURING THE
SAME PERIOD, FROM 1881 TO DECEMBER 31, 1923, THE BOOKS SHOWED AVAILABLE
FOR DIVIDENDS $8,337,232.74.  DIVIDENDS PAID OUT WERE AS FOLLOWS: 

CASH DIVIDENDS.........................  $4,585,533.50 

BOND DIVIDENDS......................... 3,000,000.00 

STOCK DIVIDENDS........................   4,500,000.00

                                      ---------------

    TOTAL DIVIDENDS PAID BETWEEN

      1881 AND DECEMBER 31, 1923..... $12,085,533.50 

DURING THE SAME PERIOD THE RECORD SHOWS THAT INTEREST WAS PAID BY THE
COMPANY ON THE BONDS ISSUED TO THE STOCKHOLDERS AS DIVIDENDS AND THAT
INTEREST AMOUNTED TO $3,076,250.00. 

IT THUS APPEARS FROM THE BOOKS THAT THE STOCKHOLDERS RECEIVED AN
AVERAGE OF PRACTICALLY 38% PROFIT ON $500,000.00 FROM 1881 TO DECEMBER
31, 1923.    FN17  SEE COVINGTON & LEXINGTON TURNPIKE CO. V. SANDFORD,
164 U.S. 578, 587; CHICAGO & G.T. RY. CO. V. WELLMAN, SUPRA, 346. 

FN18  SINCE THE APPROVAL OF A $19,000,000.00 VALUATION ON THIS
COMPANY'S PROPERTY WAS MADE, DIVIDENDS WERE PAID AS FOLLOWS:

                                          RATE PAID

                                       ON INFLATED    RATE PAID

         YEAR                AMOUNT       $5,000,000  ON POSSIBLE

                                          STOCK        $500,000

  VALUATION     VALUATION 

1924........................   500,000.00   10%
100% 

1925........................ 

1926........................    600,000.00   12%
120% 

1927........................    950,000.00   19%
190% 

1928........................  1,000,000.00   20%
200% 

1929........................    650,000.00   13%
130% 

1930........................  1,225,000.00   24 1/2%    245% 

1931........................    600,000.00   12%                120% 

1932........................    375,000.00    7 1/2%
75% 

"SURELY, BEFORE THE COURTS ARE CALLED UPON TO ADJUDGE AN ACT OF THE
LEGISLATURE FIXING THE MAXIMUM PASSENGER RATES FOR RAILROAD COMPANIES
TO BE UNCONSTITUTIONAL, ON THE GROUND THAT ITS ENFORCEMENT WOULD
PREVENT THE STOCKHOLDERS FROM RECEIVING ANY DIVIDENDS ON THEIR
INVESTMENTS, OR THE BONDHOLDERS ANY INTEREST ON THEIR LOANS, THEY
SHOULD BE FULLY ADVISED AS TO WHAT IS DONE WITH THE RECEIPTS AND
EARNINGS OF THE COMPANY; FOR IF SO ADVISED, IT MIGHT CLEARLY APPEAR
THAT A PRUDENT AND HONEST MANAGEMENT WOULD, WITHIN THE RATES
PRESCRIBED, SECURE TO THE BONDHOLDERS THEIR INTEREST, AND TO THE
STOCKHOLDERS REASONABLE DIVIDENDS."  CHICAGO & G.T. RY. CO. V. WELLMAN,
SUPRA, 345. 

FN19  THE FOLLOWING ILLUSTRATE THE DELAYS IN RATE LITIGATION:

         BILL FILED   DECIDED         TIME 

UNITED FUEL GAS CO. V. RAILROAD COMM'N, 278       DEC. 1923   JAN.
1929   5 YEARS 

U.S. 300. 

UNITED FUEL GAS CO. V. PUBLIC SERVICE COMM'N,     APRIL 1925  JAN.
1929   3 YRS.  8 MOS. 

278 U.S. 322. 

OTTINGER V. BROOKLYN UNION GAS CO., 272 U.S.     JUNE 1923   NOV.
1926   3 YRS.  5 MOS. 

579. 

OTTINGER V. KINGS COUNTY LIGHTING CO., 272 U.S.  JUNE 1923   NOV.
1926   3 YRS.  5 MOS. 

579. 

OTTINGER V. CONSOLIDATED GAS CO., 272 U.S. 576    JUNE 1923   NOV.
1926   3 YRS.  5 MOS. 

PATTERSON V. MOBILE GAS CO., 271 U.S. 131         AUG. 1922   APRIL
1926 3 YRS.  8 MOS. 

MCCARDLE V. INDIANAPOLIS WATER CO., 272 U.S.     DEC. 1923   NOV.
1926   2 YRS.  11 MOS. 

400.

  AVERAGE      3 YRS.  7 MOS. 

SEE, ALSO, BRANDEIS, J., CONCURRING, ST. JOSEPH STOCK YARDS CO. V.
UNITED STATES, 298 U.S. 88 ET SEQ. 

LINDHEIMER V. ILLINOIS BELL TELEPHONE CO., 292 U.S. 151. 
COMMISSION'S ORDER MADE 1923; CAUSE LAST APPEARED IN THIS COURT IN
1933. 

OHIO BELL TELEPHONE CO. V. PUBLIC UTILITIES COMM'N, 301 U.S. 292. 
THIS CASE STARTED BEFORE THE COMMISSION IN 1921.  BY 1931 THE
COMMISSION ANNOUNCED ITS TENTATIVE ORDER.  1934 THE COMMISSION MADE
WHAT PURPORTS TO BE A FINAL VALUATION.  APRIL, 1937, THIS COURT
RETURNED THE CAUSE FOR FURTHER ACTION. 

FN20  CHICAGO, M. & ST. P. RY. CO. V. TOMPKINS, 176 U.S. 167. 

FN21  FOR EXAMPLE, IN THE MCCARDLE CASE, SUPRA, THE HIGHEST ESTIMATE
WAS THREE TIMES AS GREAT AS THE LOWEST.  SEE BRANDEIS, J., DISSENTING,
MISSOURI EX REL. S.W. BELL TELEPHONE CO. V. PUBLIC SERVICE COMM'N, 262
U.S. AT 299. 

FN22  MUNN V. ILLINOIS, SUPRA.
..END :









STANDARD INS. CO. V. U.S., 302 U.S. 442 


NO. 41.  ARGUED DECEMBER 8, 1937.  - DECIDED JANUARY 3, 1938.  - 89
F.(2D) 658, AFFIRMED. 


1.  A CLAIM OF A COMMON CARRIER BY RAILROAD FOR UNPAID FREIGHT
CHARGES, DUE FOR TRANSPORTATION OF MATERIALS USED IN THE CONSTRUCTION
OF A FEDERAL BUILDING, IS ONE FOR "LABOR AND MATERIALS" WITHIN THE
MEANING OF THE ACT OF AUGUST 13, 1894, AS AMENDED, AND IS COVERED BY A
CONTRACTOR'S BOND GIVEN PURSUANT TO THAT ACT.  PP. 443-444. 

2.  THE ACT IS TO BE LIBERALLY CONSTRUED FOR THE PROTECTION OF THOSE
WHO FURNISH LABOR OR MATERIALS FOR PUBLIC WORKS.  P. 444. 

3.  THAT THE CARRIER MIGHT HAVE ENFORCED PAYMENT OF ITS CHARGES BY
WITHHOLDING DELIVERY IS NOT REASON FOR EXCLUDING IT FROM THE BENEFIT OF
THE ACT.  P. 444. 

STANDARD ACCIDENT INSURANCE CO. V. U.S. FOR THE USE AND BENEFIT OF
POWELL ET AL., RECEIVERS, ETC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, POST, P. 664, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
AGAINST THE INSURANCE COMPANY AS SURETY ON A PUBLIC CONTRACTOR'S BOND. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER IS SURETY ON A POST OFFICE CONSTRUCTION BOND GIVEN
PURSUANT TO THE ACT OF CONGRESS APPROVED AUGUST 13, 1894, C. 280, 28
STAT. 278, AS AMENDED, 40 U.S.C. SEC. 270, WHICH PROVIDES - 

"ANY PERSON OR PERSONS ENTERING INTO A FORMAL CONTRACT WITH THE
UNITED STATES FOR THE CONSTRUCTION OF ANY PUBLIC BUILDING, OR THE
PROSECUTION AND COMPLETION OF ANY PUBLIC WORK, OR FOR REPAIRS UPON ANY
PUBLIC BUILDING OR PUBLIC WORK, SHALL BE REQUIRED, BEFORE COMMENCING
SUCH WORK, TO EXECUTE THE USUAL PENAL BOND, WITH GOOD AND SUFFICIENT
SURETIES, WITH THE ADDITIONAL OBLIGATION THAT SUCH CONTRACTOR OR
CONTRACTORS SHALL PROMPTLY MAKE PAYMENTS TO ALL PERSONS SUPPLYING HIM
OR THEM WITH LABOR AND MATERIALS IN THE PROSECUTION OF THE WORK
PROVIDED FOR IN SUCH CONTRACT; AND ANY PERSON, COMPANY, OR CORPORATION
WHO HAS FURNISHED LABOR OR MATERIALS USED IN THE CONSTRUCTION OR REPAIR
OF ANY PUBLIC BUILDING OR PUBLIC WORK, AND PAYMENT FOR WHICH HAS NOT
BEEN MADE, SHALL HAVE THE RIGHT TO INTERVENE AND BE MADE A PARTY TO ANY
ACTION INSTITUTED BY THE UNITED STATES ON THE BOND OF THE CONTRACTOR,
AND TO HAVE THEIR RIGHTS AND CLAIMS ADJUDICATED IN SUCH ACTION AND
JUDGMENT RENDERED THEREON, SUBJECT, HOWEVER, TO THE PRIORITY OF THE
CLAIM AND JUDGMENT OF THE UNITED STATES...." 

RESPONDENT, COMMON CARRIER BY RAILROAD, HAVING TRANSPORTED MATERIAL
FOR THE STRUCTURE, SUED ON THE BOND TO RECOVER FREIGHT CHARGES AND
PREVAILED IN BOTH COURTS BELOW.  THEY HELD IT WAS "A CORPORATION WHO
HAS FURNISHED LABOR OR MATERIALS USED IN THE CONSTRUCTION" OF A PUBLIC
BUILDING.  THE CORRECTNESS OF THIS CONCLUSION IS THE ONLY QUESTION
BEFORE US. 

THE CAUSE IS HERE BECAUSE OF CONFLICTING OPINIONS IN CIRCUIT COURTS
OF APPEALS.  U.S. TO USE OF SABINE & E.T. RY. CO. V. HYATT, 92 FED.
442; TITLE GUARANTY & TRUST CO. V. PUGET SOUND ENGINE WORKS, 163 FED.
168; MANDEL V. U.S. TO USE OF WARTON & N.R. CO., 4 F.(2D) 629; MARYLAND
CASUALTY CO. V. OHIO RIVER GRAVEL CO., 20 F.(2D) 514; STUART FOR USE OF
FLORIDA EAST COAST RY. CO. V. AMERICAN SURETY CO., 38 F.(2D) 193;
STANDARD ACCIDENT INS. CO. V. U.S. FOR USE OF POWELL, 89 F.(2D) 658. 

PETITIONER MAINTAINS THAT FREIGHT CANNOT BE CONSIDERED AS "LABOR OR
MATERIAL" WITHOUT DOING VIOLENCE TO THE WORDS OF THE STATUTE; ALSO THAT
CONGRESS DID NOT INTEND TO EXTEND FURTHER PROTECTION TO CARRIERS WHO
COULD ENFORCE THEIR LIEN FOR CHARGES BY RETAINING AND SELLING THE
MATERIALS. 

STUART FOR USE OF FLORIDA EAST COAST RY. CO. V. AMERICAN SURETY CO.,
CIRCUIT COURT OF APPEALS FIFTH CIRCUIT (1930), SUPRA, CAREFULLY
CONSIDERED AND DENIED THESE DEFENSES AND STATED REASONS THEREFOR WHICH
WE DEEM ADEQUATE.  THIS WAS FOLLOWED BY THE COURT BELOW IN THE PRESENT
CAUSE. 

THE STATUTE OFTEN HAS BEEN BEFORE US.  GUARANTY CO. V. PRESSED BRICK
CO., 191 U.S. 416; U.S. FOR USE OF HILL V. AMERICAN SURETY CO., 200
U.S. 197, 201; TITLE GUARANTY & T. CO. V. CRANE CO., 219 U.S. 24; U.S.
FIDELITY & GUARANTY CO. V. U.S. FOR BENEFIT OF BARTLETT, 231 U.S. 237;
EQUITABLE SURETY CO. V. U.S. FOR USE OF MCMILLAN, 234 U.S. 448, 456;
ILLINOIS SURETY CO. V. JOHN DAVIS CO., 244 U.S. 376, 383; BROGAN V.
NATIONAL SURETY CO., 246 U.S. 257, 262.  AND WE ARE COMMITTED TO THE
DOCTRINE THAT IT SHOULD BE LIBERALLY CONSTRUED IN AID OF THE EVIDENT
PUBLIC OBJECT - SECURITY TO THOSE WHO CONTRIBUTE LABOR OR MATERIAL FOR
PUBLIC WORKS. 

CERTAINLY LABOR IS REQUIRED FOR LOADING FREIGHT ON RAILROAD CARS,
MOVING THESE OVER THE ROAD, AND UNLOADING AT DESTINATION.  A CARRIER
WHO HAS PROCURED THE DOING OF ALL THIS IN RESPECT OF MATERIAL HAS
"FURNISHED LABOR."  IF A CONTRACTOR HAD EMPLOYED MEN TO MOVE THE SAME
KIND OF MATERIAL IN WHEELBARROWS, THERE COULD BE NO DOUBT THAT HE
FURNISHED LABOR.  IN PRINCIPLE THE MERE USE OF CARS AND TRACK AND A
LONGER HAUL CREATES NO MATERIALLY DIFFERENT SITUATION. 

NOR DO WE FIND REASON FOR EXCLUDING THE CARRIER FROM THE BENEFIT OF
THE BOND BECAUSE IT MIGHT HAVE ENFORCED PAYMENT BY WITHHOLDING
DELIVERY.  THE WORDS OF THE ENACTMENT ARE BROAD ENOUGH TO INCLUDE A
CARRIER WITH A LIEN.  NOTHING IN ITS PURPOSE REQUIRES EXCLUSION OF A
RAILROAD.  REFUSAL BY THE CARRIER TO DELIVER MATERIAL UNTIL ALL CHARGES
WERE PAID MIGHT SERIOUSLY IMPEDE THE PROGRESS OF PUBLIC WORKS, POSSIBLY
FRUSTRATE AN IMPORTANT UNDERTAKING. 

STATE FOR USE OF PENNSYLVANIA R. CO. V. AETNA CASUALTY & SURETY CO.,
(1929) 34 DEL. 158; 145 ATL. 172, GAVE MUCH CONSIDERATION TO A SIMILAR
STATUTE.  THE CONCLUSION THERE REACHED ACCORDS WITH OUR VIEW. 

THE JUDGMENT OF THE COURT BELOW MUST BE AFFIRMED. 
..END :









U.S. EX REL. WILLOUGHBY V. HOWARD, 302 U.S. 445 


NO. 30.  ARGUED NOVEMBER 10, 1937.  - DECIDED JANUARY 3, 1938.  - 87
F.(2D) 243, REVERSED. 


1.  BY THE COMMON LAW IT IS THE DUTY OF A TRUSTEE OR RECEIVER, UNLESS
RELIEVED BY AGREEMENT, STATUTE, OR ORDER OF COURT, TO EXERCISE
REASONABLE CARE IN THE CUSTODY OF THE FIDUCIARY ESTATE.  P. 450. 

2.  IN RESPECT OF THE CARE OF THE FUNDS OF THE BANKRUPT ESTATES HERE
INVOLVED, THE DUTY OF THE TRUSTEE OR RECEIVER WAS NOT LIMITED, BY ANY
AGREEMENT, STATUTE, OR ORDER OF COURT, TO DEPOSITING THEM IN ONE OF THE
DEPOSITORIES DESIGNATED BY THE COURT UNDER U.S.C., TITLE 11, SEC. 101. 
PP. 450-452. 

3.  ALTHOUGH DESIGNATION BY THE COURT OF DEPOSITORIES FOR FUNDS OF
BANKRUPT ESTATES LIMITS THE DISCRETION OF THE DEPOSITING OFFICER AND
MAY RENDER HIM ABSOLUTELY LIABLE FOR THE LOSS OF FUNDS PLACED
ELSEWHERE, IT DOES NOT RELIEVE HIM OF THE DUTY OF EXERCISING CARE AND
PRUDENCE WITHIN THE FIELD LEFT TO HIS DISCRETION.  PP. 451-452. 

4.  THE MERE IMPOSITION OF STATUTORY DUTIES DOES NOT REMOVE LIABILITY
FOR BREACH OF EXISTING COMMON LAW DUTIES.  P. 452. 

5.  THE CONTENTION THAT THE BANKRUPTCY ACT ESTABLISHED A DEPOSITORY
SYSTEM - ANALOGOUS TO THE DEPOSITORY SYSTEM ESTABLISHED BY CONGRESS FOR
THE DEPOSIT OF TREASURY FUNDS - WHICH RELIEVED TRUSTEES AND RECEIVERS
WHOLLY OF THE DUTY OF EXERCISING CARE AS TO THE CONDITION OR STABILITY
OF A DEPOSITORY, CANNOT BE SUSTAINED.  P. 453. 

6.  AS TRUSTEE OR RECEIVER OF 123 SEPARATE BANKRUPT ESTATES, H GAVE
BOND IN EACH CASE CONDITIONED, INTER ALIA, ON THE FAITHFUL PERFORMANCE
OF HIS OFFICIAL DUTIES.  IN A BANK WHICH MADE PERSONAL UNSECURED LOANS
TO HIM, AND WHICH WAS ONE OF TWENTY AVAILABLE DESIGNATED DEPOSITORIES,
HE DEPOSITED FUNDS OF THE ESTATES TOTALING MORE THAN EIGHT TIMES THE
PENALTY OF THE BANK'S DEPOSITORY BOND.  HE CONTINUED TO MAINTAIN THE
FUNDS THERE, ALTHOUGH HE KNEW OF SEVERAL HEAVY RUNS ON THE BANK AND
THAT ITS DEPOSITS AND RESOURCES WERE DWINDLING.  THE BANK CLOSED ITS
DOORS, AND SUBSEQUENTLY ACTIONS WERE BROUGHT ON THE BONDS GIVEN BY H.
HELD: 

(1)  THE EXERCISE OF ORDINARY CARE IN MAKING AND MAINTAINING
DEPOSITS, EVEN THOUGH MADE IN A DESIGNATED DEPOSITORY, WAS PART OF H'S
OFFICIAL DUTIES, AND HE AND HIS SURETY ARE LIABLE ON THE BONDS IF HE
FAILED IN THIS RESPECT.  P. 454. 

(2)  THE EVIDENCE ON THE ISSUE AS TO WHETHER H HAD FAILED IN THE
FAITHFUL PERFORMANCE OF HIS OFFICIAL DUTIES WAS AMPLE - PARTICULARLY IN
VIEW OF THE PERSONAL LOANS TO HIM - TO JUSTIFY SUBMITTING THE QUESTION
TO THE JURY.  P. 454. 

UNITED STATES EX REL. WILLOUGHBY, TRUSTEE, ET AL. V. HOWARD ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 301 U.S. 677, TO REVIEW A JUDGMENT REVERSING A JUDGMENT
FOR THE PLAINTIFFS IN THREE SUITS, CONSOLIDATED FOR TRIAL, AGAINST THE
PRINCIPAL AND SURETY ON A NUMBER OF FIDELITY BONDS GIVEN BY THE
PRINCIPAL AS TRUSTEE OR RECEIVER OF BANKRUPT ESTATES. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER A TRUSTEE (OR RECEIVER) IN
BANKRUPTCY AND THE SURETY ON HIS OFFICIAL BOND CAN BE HELD LIABLE FOR
THE LOSS RESULTING FROM THE INSOLVENCY OF THE BANK IN WHICH THE
ESTATE'S FUNDS WERE DEPOSITED, IF IT WAS ONE OF THE DEPOSITORIES
DESIGNATED BY THE COURT UNDER U.S.C. TITLE 11, SEC. 101. 

SAM HOWARD WAS TRUSTEE IN BANKRUPTCY OF 114 SEPARATE BANKRUPT
ESTATES, AND WAS RECEIVER OF 9, IN THE FEDERAL COURT FOR NORTHERN
ILLINOIS, EASTERN DIVISION.  BETWEEN AUGUST 20, 1930, AND JUNE 21,
1932, HE HAD DEPOSITED THE FUNDS OF EACH OF THE 123 ESTATES IN THE
PHILLIP STATE BANK AND TRUST COMPANY OF CHICAGO, AS ORDINARY COMMERCIAL
ACCOUNTS.  ON THE LATTER DATE THE BANK, BEING INSOLVENT, CLOSED ITS
DOORS.  THE AGGREGATE OF HIS BANKRUPTCY DEPOSITS IN THE 123 ACCOUNTS
WAS, AT THE TIME OF ITS CLOSING, OVER EIGHT TIMES THE PENALTY OF THE
BANK'S DEPOSITORY BOND OF $50,000.  THE ONLY DIVIDEND RECEIVED BY THE
BANKRUPTCY ESTATES WAS ABOUT 11 PERCENT - WHICH WAS PAID FROM THE
AMOUNT COLLECTED ON THE DEPOSITORY BOND. 

AS REQUIRED BY U.S.C. TITLE 11, SEC. 78, HOWARD HAD GIVEN AN OFFICIAL
BOND TO THE UNITED STATES FOR EACH ESTATE, AND CONTINENTAL CASUALTY
COMPANY WAS THE SURETY.  THE FORM OF THE TRUSTEE'S BOND WAS THAT
PRESCRIBED BY FORM 25 OF THE GENERAL ORDERS AND FORMS IN BANKRUPTCY,
PURSUANT TO U.S.C. TITLE 11, SEC. 53. 

THE OBLIGORS BOUND THEMSELVES TO PAY ANY LOSS RESULTING TO THE ESTATE
FROM FAILURE BY HOWARD, (A) TO OBEY ANY ORDER OF THE COURT, (B) TRULY
AND FAITHFULLY TO ACCOUNT FOR ALL MONEYS, (C) FAITHFULLY TO PERFORM HIS
OFFICIAL DUTIES AS TRUSTEE.  FN1  IT IS AGREED THAT THE CONDITION OF
THE BONDS GIVEN AS RECEIVER WAS IN EFFECT THE SAME. 

HOWARD RESIGNED AS TRUSTEE OR RECEIVER OF EACH ESTATE.  CHESTER A.
WILLOUGHBY, WHO SUCCEEDED HIM, BROUGHT IN THAT COURT, PURSUANT TO
LEAVE, THREE ACTIONS IN THE NAME OF THE UNITED STATES AGAINST HOWARD
AND THE CASUALTY COMPANY.  IN THESE ACTIONS, WHICH WERE CONSOLIDATED,
RECOVERY WAS SOUGHT ON EACH BOND ON THE GROUND THAT ITS CONDITION HAD
BEEN BROKEN BY HOWARD'S FAILING TO PERFORM HIS OFFICIAL DUTIES AS
TRUSTEE OR RECEIVER.  THE FAILURE ASSIGNED WAS THAT HE NEGLIGENTLY
DEPOSITED THE FUNDS, OR PERMITTED THEM TO REMAIN, IN THE PHILLIP BANK,
WHEREAS ORDINARY CARE AND PRUDENCE WOULD HAVE REQUIRED HIM TO DESIST
FROM SUCH PRACTICE AND TAKE CARE THAT THE AGGREGATE OF THE DEPOSITS OF
ESTATE FUNDS IN THAT BANK SHOULD NOT EXCEED THE PENALTY OF THE
DEPOSITORY BOND.  THE DEFENDANTS MOVED TO DISMISS THE COMPLAINTS ON THE
GROUND THAT THEY FAILED TO DISCLOSE ANY BREACH OF THE CONDITION OF THE
BONDS.  UPON THE DENIAL OF THE MOTIONS, THE CONSOLIDATED CASES WERE
HEARD BEFORE A JURY ON THE ISSUE WHETHER HOWARD HAD BEEN NEGLIGENT IN
THE PERFORMANCE OF HIS OFFICIAL DUTIES IN SO DEPOSITING THE FUNDS, OR
IN LEAVING THEM, IN THE PHILLIP BANK. 

THE FOLLOWING, AMONG OTHER FACTS, APPEARED:  ABOUT TWENTY CHICAGO
BANKS HAD BEEN DESIGNATED BY THE COURT AS DEPOSITORIES OF BANKRUPTCY
FUNDS IN THAT DISTRICT.  HOWARD, WHO HAD FOR YEARS SERVED AS TRUSTEE
AND RECEIVER OF BANKRUPT ESTATES, HAD, PRIOR TO AUGUST, 1930, DEPOSITED
THE FUNDS OF THE ESTATES EITHER IN THE CENTRAL TRUST COMPANY OF
ILLINOIS OR THE FOREMAN STATE NATIONAL BANK OF CHICAGO.  IN JULY HE WAS
SOLICITED TO TRANSFER HIS BANKRUPTCY DEPOSITS TO THE PHILLIP BANK, A
SMALL INSTITUTION.  HE AGREED TO DO SO IF THE PHILLIP BANK SHOULD
BECOME A DEPOSITORY, WOULD MAKE HIM UNSECURED PERSONAL LOANS SUFFICIENT
TO DISCHARGE HIS EXISTING PERSONAL INDEBTEDNESS TO THE CENTRAL TRUST
COMPANY AND THE FOREMAN STATE NATIONAL BANK - AND WOULD GIVE HIM
THEREAFTER LIKE ACCOMMODATION.  THE PHILLIP BANK LOANED HIM $11,000;
HOWARD PAID HIS INDEBTEDNESS TO THE OTHER BANKS; AND ON AUGUST 20, THE
PHILLIP BANK QUALIFIED AS A DEPOSITORY, GIVING A BOND IN THE SUM OF
$50,000.  WITHIN THE NEXT FEW DAYS, HOWARD OPENED IN THE PHILLIP BANK
ACCOUNTS FOR BANKRUPTCY ESTATES WITH DEPOSITS AGGREGATING $249,968.15. 
THE NUMBER OF HIS ACCOUNTS, THE AGGREGATE AMOUNT ON DEPOSIT, AND THE
AMOUNT OF HIS PERSONAL LOANS FROM THAT BANK INCREASED FROM TIME TO
TIME.  WHEN THE BANK CLOSED, THE ACCOUNTS NUMBERED 123, THE DEPOSITS
AGGREGATED $416,833.90, AND THE LOANS TO HOWARD $17,500.  THE PHILLIP
BANK'S DEPOSITORY BOND REMAINED AT $50,000.  HE KNEW THAT DURING THIS
PERIOD OF DEPOSIT THERE WERE SEVERAL HEAVY RUNS ON THE PHILLIP BANK,
ITS DEPOSITS WERE STEADILY DECLINING AND ITS RESOURCES WERE BEING
DRAINED. 

DEFENDANTS' MOTIONS FOR A DIRECTED VERDICT WERE DENIED; THE JURY
FOUND FOR THE PLAINTIFF VERDICTS AGGREGATING $225,740.45; A NEW TRIAL
WAS REFUSED; AND AN APPEAL WAS TAKEN TO THE CIRCUIT COURT OF APPEALS,
WHERE THE CASE WAS HEARD FIRST BY TWO JUDGES, THEN REARGUED BEFORE THE
FULL COURT.  A CONDENSED REPORT OF THE EVIDENCE AND OTHER PROCEEDINGS
AT THE TRIAL OCCUPIES 250 PAGES OF THE PRINTED RECORD.  MUCH EVIDENCE
OFFERED BY DEFENDANTS HAD BEEN EXCLUDED; MANY RULINGS SOUGHT HAD BEEN
REFUSED; AND TIMELY EXCEPTION HAD BEEN TAKEN TO INSTRUCTIONS GIVEN TO
THE JURY AND TO THOSE REFUSED.  EIGHTY-FOUR ASSIGNMENTS OF ERROR HAD
BEEN FILED WITH THE PETITION FOR APPEAL.  BUT THE APPELLATE COURT
EXAMINED ONLY A FEW OF THE ASSIGNED ERRORS.  FOR IT HELD THAT THE TRIAL
COURT SHOULD HAVE DIRECTED A VERDICT FOR THE DEFENDANTS, ON THE GROUND
THAT, SINCE HOWARD HAD DEPOSITED AND MAINTAINED THE FUNDS IN ONE OF THE
BANKS DESIGNATED BY THE COURT AS DEPOSITORIES, HE FULLY PERFORMED HIS
OFFICIAL DUTY IN RESPECT TO THE CARE OF THE FUNDS.  IT REVERSED THE
JUDGMENT WITH DIRECTION TO GRANT A NEW TRIAL AND TO PROCEED IN
ACCORDANCE WITH THE OPINION.  87 F.(2D) 243.  ONE JUDGE DISSENTED.  WE
GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE QUESTION
PRESENTED. 

FIRST.  THAT THE OBLIGORS IN THE BONDS ARE LIABLE ONLY FOR BREACH BY
HOWARD OF AN OFFICIAL DUTY MAY BE ASSUMED.  BY THE COMMON LAW  FN2
EVERY TRUSTEE OR RECEIVER OF AN ESTATE HAS THE DUTY OF EXERCISING
REASONABLE CARE IN THE CUSTODY OF THE FIDUCIARY ESTATE UNLESS RELIEVED
OF SUCH DUTY BY AGREEMENT, STATUTE, OR ORDER OF COURT.  OBVIOUSLY,
HOWARD WAS NOT RELIEVED OF THE DUTY BY ANY AGREEMENT.  THE QUESTION FOR
DECISION IS WHETHER UNDER THE BANKRUPTCY ACT, FN3  OR ANY ORDER OF THE
COURT, THIS DUTY IN RESPECT TO THE CARE OF FUNDS WAS LIMITED TO
DEPOSITING THEM IN ONE OF THE DEPOSITORIES DESIGNATED BY THE COURT
UNDER U.S.C. TITLE 11, SEC. 101, SO THAT HOWARD WAS RELIEVED OF ALL
DUTY TO EXERCISE CARE IN SELECTING THE DEPOSITORY AND MAINTAINING FUNDS
THEREIN. 

SECOND.  NO STATUTE RELIEVED HOWARD OF THE COMMON LAW DUTY TO
EXERCISE CARE IN THE CUSTODY OF THE FUNDS.  THE ONLY RELEVANT
PROVISIONS OF THE BANKRUPTCY ACT PRESCRIBING DUTIES OF THE TRUSTEE
ARE: 

"SEC. 61(U.S.C. TITLE 11, SEC. 101).  DEPOSITORIES FOR MONEY.  COURTS
OF BANKRUPTCY SHALL DESIGNATE, BY ORDER, BANKING INSTITUTIONS AS
DEPOSITORIES FOR THE MONEY OF BANKRUPT ESTATES, AS CONVENIENT AS MAY BE
TO THE RESIDENCES OF TRUSTEES, AND SHALL REQUIRE BONDS TO THE UNITED
STATES, SUBJECT TO THEIR APPROVAL, TO BE GIVEN BY SUCH BANKING
INSTITUTIONS, AND MAY FROM TIME TO TIME AS OCCASION MAY REQUIRE, BY
LIKE ORDER INCREASE THE NUMBER OF DEPOSITORIES OR THE AMOUNT OF ANY
BOND OR CHANGE SUCH DEPOSITORIES." 

"SEC. 47(U.S.C. TITLE 11, SEC. 75).  DUTIES OF TRUSTEES.  (A)
TRUSTEES SHALL RESPECTIVELY  ... 

"(3)  DEPOSIT ALL MONEY RECEIVED  ...  IN ONE OF THE DESIGNATED
DEPOSITORIES; 

"(4)  DISBURSE MONEY ONLY BY CHECK OR DRAFT ON THE DEPOSITORIES IN
WHICH IT HAS BEEN DEPOSITED; 

"(5)  FURNISH SUCH INFORMATION CONCERNING THE ESTATES  ...  AND THEIR
ADMINISTRATION AS MAY BE REQUESTED BY PARTIES IN INTEREST;... 

"(7)  LAY BEFORE THE FINAL MEETING OF THE CREDITORS DETAILED
STATEMENTS OF THE ADMINISTRATION OF THE ESTATES; 

"(8)  MAKE FINAL REPORTS AND FILE FINAL ACCOUNTS WITH THE COURTS
FIFTEEN DAYS BEFORE THE DAYS FIXED FOR THE FINAL MEETINGS OF THE
CREDITORS;... 

"(10)  REPORT TO THE COURTS, IN WRITING, THE CONDITION OF THE ESTATES
AND THE AMOUNTS OF MONEY ON HAND, AND SUCH OTHER DETAILS AS MAY BE
REQUIRED BY THE COURTS, WITHIN THE FIRST MONTH AFTER THEIR APPOINTMENT
AND EVERY TWO MONTHS THEREAFTER, UNLESS OTHERWISE ORDERED BY THE
COURTS;..." 

OBVIOUSLY THE ACT DOES NOT IN TERMS RELIEVE THE TRUSTEE OF THE COMMON
LAW DUTY TO EXERCISE CARE IN THE CUSTODY OF FUNDS.  THE DESIGNATION OF
BANKS OF DEPOSIT PROPER FOR BANKRUPTCY FUNDS, LIKE THE LISTING OF LEGAL
INVESTMENTS FOR TRUSTEES AND GUARDIANS, LIMITS THE DISCRETION WHICH CAN
BE EXERCISED BY THE DEPOSITING OFFICER AND MAY RENDER HIM ABSOLUTELY
LIABLE FOR THE LOSS OF FUNDS PLACED IN A NON-DESIGNATED DEPOSITORY. 
BUT THE FACT THAT THE FREEDOM OF CHOICE OF THE FIDUCIARY IS LIMITED BY
STATUTE DOES NOT RELIEVE HIM OF THE DUTY OF EXERCISING CARE AND
PRUDENCE WITHIN THE FIELD LEFT TO HIS DISCRETION.  AS HE MAY NOT SHUT
HIS EYES TO THE FACT THAT A SO-CALLED LEGAL INVESTMENT IS NO LONGER
SOUND, HE MAY NOT DISREGARD THE FACT THAT A DEPOSITORY PROPER WHEN
DESIGNATED IS NO LONGER SAFE.  FN4  THE MERE IMPOSITION OF STATUTORY
DUTIES DOES NOT REMOVE LIABILITY FOR BREACH OF EXISTING COMMON LAW
DUTIES.  COMPARE BOWERMAN V. HAMNER, 250 U.S. 504, 510-11; YATES V.
JONES NATIONAL BANK, 206 U.S. 158, 178; MECHANICS UNIVERSAL JOINT CO.
V. CULHANE, 299 U.S. 51, 57. 

THIRD.  NO ORDER OF THE COURT LIMITED THE COMMON LAW DUTY OF HOWARD
TO EXERCISE CARE IN THE CUSTODY OF ESTATE FUNDS.  THE PHILLIP BANK WAS
DESIGNATED AS A DEPOSITORY ON ITS OWN APPLICATION.  NO ORDER DIRECTED
HOWARD TO DEPOSIT FUNDS IN THE PHILLIP BANK; AND NO ORDER SPECIFICALLY
AUTHORIZED HIM TO DO SO.  BEING FREE TO SELECT ANY ONE OR MORE OF THE
DESIGNATED DEPOSITORIES, HOWARD WAS IN RESPECT THERETO UNDER THE COMMON
LAW OBLIGATION TO EXERCISE CARE IN THE PERFORMANCE OF HIS FUNCTIONS AS
A FIDUCIARY.  WHILE HE WAS MAKING DEPOSITS IN THE PHILLIP BANK THERE
WERE ABOUT TWENTY OTHERS IN THE CHICAGO AREA WHICH WERE DESIGNATED
DEPOSITORIES, SO HE HAD A WIDE RANGE FROM WHICH TO CHOOSE.  BY
DESIGNATING THE PHILLIP BANK AS A DEPOSITORY THE COURT MAY HAVE
JUSTIFIED HOWARD IN ASSUMING THAT ON AUGUST 20, 1930, IT WAS A
TRUSTWORTHY PLACE OF DEPOSIT FOR BANKRUPTCY FUNDS TO THE EXTENT OF
$50,000.  BUT THROUGHOUT THE PERIOD OF DEPOSIT THE LEGAL DUTY TO
EXERCISE CARE REMAINED.  IF AT ANY TIME HE DISCOVERED FACTS TENDING TO
SHOW THAT THE PLACE OF DEPOSIT WAS NO LONGER SAFE, IT WAS HIS DUTY TO
BRING THE FACTS TO THE ATTENTION OF THE COURT.  FN5 AND AT NO TIME WAS
HOWARD JUSTIFIED IN MAINTAINING A DEPOSIT NOT ENTIRELY SECURED BY THE
DEPOSITORY BOND IF HE HAD REASONABLE CAUSE TO DOUBT THE STABILITY OF
THE BANK. 

FOURTH.  THE CONTENTION THAT THE BANKRUPTCY ACT ESTABLISHED A
DEPOSITORY SYSTEM WHICH RELIEVED TRUSTEES AND RECEIVERS WHOLLY OF THE
DUTY OF EXERCISING CARE AS TO THE CONDITION OR STABILITY OF A
DEPOSITORY RESTS UPON FALSE ANALOGY.  FOR FEDERAL PUBLIC FUNDS CONGRESS
HAS PROVIDED A DEPOSITORY SYSTEM BY WHICH THE MONEYS, AS SOON AS
DEPOSITED ARE IN EFFECT IN THE TREASURY OF THE UNITED STATES.  31
U.S.C. SECS. 476-478, 495; 12 U.S.C. SECS. 391, 392.  UNDER THAT SYSTEM
AN OFFICER WHO HAS DULY MADE THE DEPOSITS IS RELIEVED OF ALL
RESPONSIBILITY FOR THE STABILITY OF THE DEPOSITORY.  SIMILAR PROVISION
HAS BEEN MADE IN MANY STATES FOR THE DEPOSIT OF PUBLIC FUNDS OF THE
STATE OR MUNICIPALITY.  FN6  BUT THE FUNDS OF BANKRUPTCY ESTATES ARE
PRIVATE FUNDS, SEE TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245,
257, NOTE 11; AND THE PROVISIONS IN THE BANKRUPTCY ACT CONCERNING THE
APPOINTMENT OF DEPOSITORIES AND THE DEPOSITS TO BE MADE BY TRUSTEES ARE
OF A VERY DIFFERENT CHARACTER. 

AS THE EXERCISE OF ORDINARY CARE IN MAKING AND MAINTAINING DEPOSITS,
EVEN IF MADE IN A DESIGNATED DEPOSITORY, WAS PART OF HOWARD'S OFFICIAL
DUTIES, HE AND HIS SURETY ARE LIABLE ON THE BONDS IF HE FAILED IN THIS
RESPECT.  ON THAT ISSUE THE EVIDENCE - PARTICULARLY IN VIEW OF THE
PERSONAL LOANS TO HIM - WAS AMPLE TO JUSTIFY SUBMITTING THE QUESTION TO
THE JURY.  THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS, THEREFORE,
REVERSED; AND THE CAUSE IS REMANDED TO IT FOR CONSIDERATION OF THE
OTHER ERRORS WHICH THE DEFENDANTS ASSIGNED CONCERNING THE CONDUCT OF
THE TRIAL.  REVERSED. 

FN1  THE CONDITION OF EACH BOND GIVEN AS TRUSTEE WAS:  "NOW,
THEREFORE, IF THE SAID SAM HOWARD, TRUSTEE AS AFORESAID, SHALL OBEY
SUCH ORDERS AS SAID COURT MAY MAKE IN RELATION TO SAID TRUST, AND SHALL
FAITHFULLY AND TRULY ACCOUNT FOR ALL THE MONEYS, ASSETS AND EFFECTS OF
THE ESTATE OF SAID BANKRUPT, WHICH SHALL COME INTO HIS HANDS AND
POSSESSION, AND SHALL IN ALL RESPECTS FAITHFULLY PERFORM ALL HIS
OFFICIAL DUTIES AS SAID TRUSTEE, THEN THIS OBLIGATION TO BE VOID;
OTHERWISE, TO REMAIN IN FULL FORCE AND VIRTUE."    FN2  RECEIVER IN
BANKRUPTCY:  IN RE CURTIS, 76 F.(2D) 751, 753(C.C.A. 2); IN RE C.M.
PIECE DYEING CO., 89 F.(2D) 37, 40(C.C.A. 2); HARTFORD ACCIDENT & I.
CO. V. CROW, 83 F.(2D) 386, 388(C.C.A. 6).  TRUSTEE IN BANKRUPTCY:  IN
RE REINBOTH, 157 FED. 672, 674(C.C.A. 2); CARSON, PIRIE, SCOTT & CO. V.
TURNER, 61 F.(2D) 693, 694(C.C.A. 6); IN RE KUHN BROS., 234 FED. 277,
281(C.C.A. 7); IN RE NEWCOMB, 32 FED. 826(N.D.N.Y.); IN RE B.A.
MONTGOMERY & SON, 17 F.(2D) 404, 406(N.D. OHIO); COMPARE DELAWARE V.
IRVING TRUST CO., 92 F.(2D) 17, 19(C.C.A. 2); IN RE KANE, 161 FED. 633,
639(N.D.N.Y.).  EQUITY RECEIVER:  GUTTERSON & GOULD V. LEBANON IRON &
STEEL CO., 151 FED. 72(C.C.M.D. PA.); HITNER V. DIAMOND STATE STEEL
CO., 207 FED. 616, 622(D. DEL.).  TRUSTEE: BARNEY V. SAUNDERS, 16 HOW. 
535, 545-46; U.S. NATIONAL BANK & T. CO. V. SULLIVAN, 69 F.(2D) 412,
415-16(C.C.A. 7); FIDELITY & DEPOSIT CO. V. REDFIELD, 7 F.(2D) 800,
802(C.C.A. 9); JOHNS V. HERBERT, 2 APP. D.C. 485, 497; CALDWELL V.
HICKS, 15 F.SUPP.  46, 52(S.D. GA.); COMPARE STRAUSS V. U.S. FIDELITY &
G. CO., 63 F.(2D) 174, 176-77(C.C.A. 4); AMERICAN BONDING CO. V.
RICHARDSON, 214 FED. 897, 901(C.C.A. 6); THOMPSON V. HAYS, 11 F.(2D)
244, 247(C.C.A. 8).  EXECUTOR:  SEE TAYLOR V. BENHAM, 5 HOW.  233, 275;
GLASGOW V. LIPSE, 117 U.S. 327, 333-334; MOORE V. MOORE, 47 APP. D.C.
18, 27.  GUARDIAN:  LAMAR V. MICOU, 112 U.S. 452, 465; CORCORAN V.
KOSTROMETINOFF, 164 FED. 685, 687-688(C.C.A. 9). 

FN3  JULY 1, 1898, C. 541, 30 STAT. 544, AS AMENDED; U.S.C. TITLE
11. 

FN4  SEE DELAFIELD V. BARRET, 270 N.Y. 43, 48-49; 200 N.E. 67; MATTER
OF FLINT, 240 APP. DIV. 217, 225; 269 N.Y.S. 470; MATTER OF BLAKE, 146
MISC. 780; 263 N.Y.S. 310; MATTER OF FRAZER, 150 MISC. 43; 268 N.Y.S.
477; MATTER OF JACOBS, 152 MISC. 139, 141-42; 273 N.Y.S. 279; ESTATE OF
ALLIS, 191 WIS. 23, 31-32; 209 N.W. 945; 210 N.W. 418. 

FN5  COMPARE JORDON V. BAKER, 252 KY. 40, 49; 66 S.W.(2D) 84;
ZIMMERMAN V. COBLENTZ, 170 MD. 468, 476; 185 ATL. 342. 

FN6  IN A NUMBER OF STATES STATUTES SPECIFICALLY RELIEVE PUBLIC
OFFICERS OF LIABILITY IF THE FUNDS ENTRUSTED TO THEM ARE DEPOSITED IN
THE MANNER PROVIDED BY LAW.  SOME COURTS HOLD THAT IN THE ABSENCE OF
SUCH A PROVISION THE MERE FACT THAT THE FUNDS ARE PLACED IN A DULY
DESIGNATED DEPOSITORY IS NOT A COMPLETE DEFENSE; AND THAT IF THE
OFFICER ACQUIRES KNOWLEDGE OF FACTS WHICH SHOW THE BANK TO BE UNSAFE,
HE MAY BE HELD RESPONSIBLE IF HE FAILS TO HAVE THE FUNDS REMOVED. 
INDEPENDENT SCHOOL DIST. V. FLITTIE, 54 S.D. 526; 223 N.W. 728; LANE
INDEPENDENT SCHOOL DIST. V. ENDAHL, 55 S.D. 73; 224 N.W. 951; COZAD V.
THOMPSON, 126 NEB. 79; 252 N.W. 606; SEE JORDON V. BAKER, 252 KY. 40,
49; 66 S.W.(2D) 84. 
..END :













HELVERING V. BASHFORD, 302 U.S. 454 


NO. 33.  ARGUED OCTOBER 21, 1937.  REARGUED DECEMBER 15, 1937.  -
DECIDED JANUARY 3, 1938.  - 87 F.(2D) 827, REVERSED. 


THE A CORPORATION BROUGHT ABOUT A CONSOLIDATION OF THREE OF ITS
COMPETITORS INTO A NEW CORPORATION, OF WHICH IT BECAME THE OWNER OF ALL
THE PREFERRED SHARES AND 57% OF THE COMMON SHARES.  STOCKHOLDERS OF THE
CONSOLIDATED COMPANIES RECEIVED IN EXCHANGE FOR THEIR SHARES:  SHARES
OF THE NEW CORPORATION, SHARES OF THE A CORPORATION, AND CASH WHICH THE
A CORPORATION SUPPLIED.  HELD, THE A CORPORATION WAS NOT A "PARTY TO A
REORGANIZATION" UNDER SEC. 112(B)(3) OF THE REVENUE ACT OF 1928; ITS
SHARES RECEIVED BY STOCKHOLDERS OF THE CONSOLIDATED COMPANIES WERE
"OTHER PROPERTY" UNDER SEC. 112(C)(1), AND GAIN THEREON WAS TAXABLE. 
FOLLOWING GROMAN V. COMMISSIONER, ANTE, P. 82.  P. 458. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. BASHFORD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 301 U.S. 678, TO REVIEW A JUDGMENT AFFIRMING A DECISION
OF THE BOARD OF TAX APPEALS, 33 B.T.A. 10, WHICH REVERSED AN ORDER OF
THE COMMISSIONER ASSESSING A DEFICIENCY IN INCOME TAX. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

WHETHER BASHFORD IS LIABLE FOR A DEFICIENCY IN THE INCOME TAXES
ASSESSED FOR THE YEAR 1930 DEPENDS UPON WHETHER ATLAS POWDER COMPANY
WAS, AS DEFINED BY SEC. 112(I)(2) OF THE REVENUE ACT OF 1928, 45 STAT.
818, "A PARTY TO THE REORGANIZATION" OF THE PEERLESS EXPLOSIVES
COMPANY. 

ATLAS POWDER COMPANY DESIRED TO ELIMINATE THE COMPETITION OF THREE
CONCERNS - PEERLESS EXPLOSIVES COMPANY, UNION EXPLOSIVES COMPANY AND
BLACK DIAMOND POWDER COMPANY.  DEEMING IT UNWISE TO DO SO BY BUYING
EITHER THEIR STOCK OR THEIR ASSETS, ATLAS CONCEIVED AND CONSUMMATED A
PLAN FOR CONSOLIDATING THE THREE COMPETITORS INTO A NEW CORPORATION,
WITH ATLAS TO GET A MAJORITY OF ITS STOCK.  TO THIS END HOLDERS OF THE
STOCK OF THE THREE COMPANIES WERE DULY APPROACHED BY INDIVIDUALS WHO
REPRESENTED ATLAS; THEIR AGREEMENTS TO CARRY OUT THE PLAN WERE
OBTAINED; THE NEW CORPORATION WAS FORMED AND BECAME THE OWNER
PRACTICALLY OF ALL THE STOCK, AND ALL THE ASSETS, OF THE THREE
COMPETITORS; ATLAS BECAME THE OWNER OF ALL THE PREFERRED STOCK AND 57%
OF THE COMMON STOCK OF THE NEW CORPORATION; AND IN EXCHANGE FOR THE
STOCK IN THE THREE COMPANIES EACH OF THE FORMER STOCKHOLDERS RECEIVED
SOME COMMON STOCK IN THE NEW COMPANY, SOME ATLAS STOCK, AND SOME CASH
WHICH ATLAS SUPPLIED. 

BASHFORD, ONE OF THE STOCKHOLDERS IN PEERLESS, RECEIVED IN EXCHANGE
FOR HIS STOCK 2,720.08 SHARES OF THE COMMON STOCK OF THE NEW
CORPORATION, $25,306.67 IN CASH, 625 SHARES OF ATLAS PREFERRED, AND
1344 SHARES OF ATLAS COMMON.  IN HIS INCOME TAX RETURN FOR THE YEAR
1930 HE INCLUDED ALL THE CASH, BUT DID NOT INCLUDE THE GAIN ON STOCK OF
EITHER THE NEW CORPORATION OR ATLAS.  THE COMMISSIONER CONCEDES THAT
GAIN ON THE STOCK IN THE NEW CORPORATION WAS PROPERLY OMITTED, SINCE
THE NEW COMPANY WAS A "REORGANIZATION" OF PEERLESS.  HE INSISTS THAT
THE ATLAS STOCK SHOULD HAVE BEEN INCLUDED, AS IT WAS "OTHER PROPERTY"
ON WHICH GAIN WAS TAXABLE UNDER SEC. 112(C)(1) OF THE REVENUE ACT OF
1928, SINCE ATLAS WAS NOT "A PARTY TO THE REORGANIZATION."  THE BOARD
OF TAX APPEALS, 33 B.T.A. 10, HELD THAT ATLAS WAS "A PARTY TO THE
REORGANIZATION," AND HENCE THAT GAIN ON ITS STOCK WAS PROPERLY OMITTED
BY BASHFORD.  THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT
AFFIRMED THAT JUDGMENT.  87 F.(2D) 827.  BECAUSE OF ALLEGED CONFLICT OF
THE DECISION WITH COMMISSIONER V. GROMAN, 86 F.(2D) 670, WE GRANTED
CERTIORARI IN BOTH CASES. 

IN GROMAN V. COMMISSIONER, ANTE, P. 82, WE GAVE THE FOLLOWING
CONSTRUCTION TO THE REORGANIZATION SECTIONS HERE INVOLVED: 

"...  WHERE, PURSUANT TO A PLAN, THE INTEREST OF THE STOCKHOLDERS OF
A CORPORATION CONTINUES TO BE DEFINITELY REPRESENTED IN SUBSTANTIAL
MEASURE IN A NEW OR DIFFERENT ONE, THEN TO THE EXTENT, BUT ONLY TO THE
EXTENT, OF THAT CONTINUITY OF INTEREST, THE EXCHANGE IS TO BE TREATED
AS ONE NOT GIVING RISE TO PRESENT GAIN OR LOSS."  P. 89. 

APPLYING THE RULE, WE HELD THERE THAT THE GLIDDEN STOCK RECEIVED BY
GROMAN WAS "OTHER PROPERTY" AND HE, THEREFORE, LIABLE ON THE DEFICIENCY
ASSESSMENT; BECAUSE THE GLIDDEN COMPANY WAS NOT "A PARTY TO THE
REORGANIZATION ALTHOUGH IT HAD, PURSUANT TO AGREEMENT WITH THE
STOCKHOLDERS OF THE INDIANA CORPORATION, CAUSED IT TO BE REORGANIZED AS
AN OHIO CORPORATION; HAD TAKEN FOR ITSELF ALL THE COMMON STOCK OF OHIO;
AND HAD DISTRIBUTED AMONG THE FORMER STOCKHOLDERS OF INDIANA THE OHIO
PREFERRED STOCK AND SOME GLIDDEN STOCK, AS WELL AS CASH, WHICH IT
SUPPLIED.  APPLYING THE RULE HERE, WE HOLD LIKEWISE THAT THE ATLAS
STOCK WAS "OTHER PROPERTY" AND BASHFORD, THEREFORE, LIABLE ON THE
DEFICIENCY ASSESSMENT; BECAUSE THE ATLAS POWDER COMPANY WAS NOT "A
PARTY TO THE REORGANIZATION." 

BASHFORD CONTENDS THAT THERE IS A CLEAR DISTINCTION IN THE FACTS
BETWEEN THE CASE AT BAR AND THE GROMAN CASE WHICH SHOULD LEAD TO A
DIFFERENT CONCLUSION HERE.  THE DIFFERENCES MAINLY RELIED UPON ARE
THESE: 

1.  IN THE GROMAN CASE, THE COURT FOUND THAT GLIDDEN DID NOT ACQUIRE
A MAJORITY OF THE SHARES OF THE VOTING STOCK AND A MAJORITY OF THE
SHARES OF ALL OTHER CLASSES OF STOCK INVOLVED, WHEREAS HERE THE FACTS
WERE AS FOLLOWS:  ATLAS ACQUIRED "NOT ONLY A MAJORITY OF THE VOTING
STOCK AND A MAJORITY OF THE STOCK OF ALL OTHER CLASSES OF ANOTHER
CORPORATION (THE NEW COMPANY) IN THE REORGANIZATION, BUT OF ALL THE
OTHER CORPORATIONS (PEERLESS AND UNION) IN THE REORGANIZATION." 

2.  "ATLAS ACTUALLY ACQUIRED, AS PART OF THE PLAN  ...  SUBSTANTIALLY
ALL OF THE SHARES OF PEERLESS AND UNION IN DIRECT EXCHANGES WITH THE
TAXPAYER AND THE OTHER STOCKHOLDERS OF THOSE COMPANIES IN PART
CONSIDERATION FOR WHICH IT DELIVERED TO THE SHAREHOLDERS 6,318 SHARES
OF ATLAS PREFERRED STOCK AND 8712 1/2 SHARES OF COMMON." 

3.  "ATLAS, UNLIKE GLIDDEN WAS A PARTY TO ALL THE EXCHANGES, WHILE
THE NEW COMPANY WAS A PARTY ONLY TO EXCHANGES WITH ATLAS." 

4.  "THE STOCKHOLDERS OF PEERLESS AND UNION DID NOT PARTICIPATE IN
THE CONTRACT OR EXCHANGE BETWEEN ATLAS AND THE NEW COMPANY." 

ANY DIRECT OWNERSHIP BY ATLAS OF PEERLESS, BLACK DIAMOND, AND UNION
WAS TRANSITORY AND WITHOUT REAL SUBSTANCE; IT WAS PART OF A PLAN WHICH
CONTEMPLATED THE IMMEDIATE TRANSFER OF THE STOCK OR THE ASSETS OR BOTH
OF THE THREE REORGANIZED COMPANIES TO THE NEW ATLAS SUBSIDIARY.  HENCE,
UNDER THE RULE STATED, THE ABOVE DISTINCTIONS ARE NOT OF LEGAL
SIGNIFICANCE.  THE DIFFERENCE IN THE DEGREE OF STOCK CONTROL BY THE
PARENT COMPANY OF ITS SUBSIDIARY AND THE DIFFERENCE IN THE METHOD OR
MEANS BY WHICH THAT CONTROL WAS SECURED ARE NOT MATERIAL.  THE
PARTICIPATION OF ATLAS IN THE REORGANIZATION OF ITS COMPETITORS INTO A
NEW COMPANY WHICH BECAME A SUBSIDIARY DID NOT MAKE ATLAS "A PARTY TO
THE REORGANIZATION."  THE CONTINUITY OF INTEREST REQUIRED BY THE RULE
IS LACKING.  REVERSED. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE SUTHERLAND AND MR. JUSTICE BUTLER
ARE OF OPINION THAT THE BOARD OF TAX APPEALS AND THE CIRCUIT COURT OF
APPEALS REACHED THE RIGHT CONCLUSION, AND THAT THE JUDGMENT BELOW
SHOULD BE AFFIRMED. 
..END :






LEITCH MFG. CO. V. BARBER CO., 302 U.S. 458 


NO. 208.  ARGUED DECEMBER 14, 1937.  - DECIDED JANUARY 3, 1938.  - 89
F.(2D) 960, REVERSED. 


1.  THE OWNER OF A PATENT FOR A PROCESS FOR CURING CONCRETE BY THE USE
OF A SPRAY OF BITUMINOUS EMULSION, AN UNPATENTED ARTICLE OF COMMERCE,
CAN NOT ENJOIN AS A CONTRIBUTORY INFRINGER A COMPETING MANUFACTURER WHO
SOLD BITUMINOUS EMULSION TO A ROAD CONTRACTOR WHO USED IT IN PRACTICING
THE PATENTED METHOD.  PP. 460, 463. 

2.  A PATENT MAY NOT BE USED AS A MEANS OF OBTAINING A LIMITED
MONOPOLY OF UNPATENTED MATERIAL.  CARBICE CORP. V. AMERICAN PATENTS
CORP., 283 U.S. 27.  P. 463. 

3.  THE RULE OF THE CARBICE CASE, SUPRA, IS APPLICABLE WHETHER THE
PATENT BE FOR A MACHINE, A PRODUCT, OR A PROCESS; AND WHATEVER THE
NATURE OF THE DEVICE BY WHICH THE OWNER OF THE PATENT SEEKS TO EFFECT
SUCH UNAUTHORIZED EXTENSION OF THE MONOPOLY.  P. 463. 

LEITCH MANUFACTURING CO. V. BARBER COMPANY. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 673, TO REVIEW A DECREE WHICH, UPON APPEAL FROM
A DECREE DISMISSING THE BILL IN A SUIT FOR CONTRIBUTORY INFRINGEMENT OF
A PATENT, 14 F.SUPP.  212, DIRECTED THE DISTRICT COURT TO ENTER A
DECREE ADJUDGING THE CLAIMS IN ISSUE VALID AND INFRINGED AND AWARDING
AN ACCOUNTING. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE OWNER OF A PROCESS PATENT
MAY BY SUIT FOR CONTRIBUTORY INFRINGEMENT SUPPRESS COMPETITION IN THE
SALE OF UNPATENTED MATERIAL TO BE USED IN PRACTICING THE PROCESS. 

THE BARBER COMPANY BROUGHT, IN THE FEDERAL COURT FOR NEW JERSEY,
AGAINST THE LEITCH MANUFACTURING COMPANY,  FN1  THIS SUIT TO ENJOIN THE
ALLEGED CONTRIBUTORY INFRINGEMENT OF PATENT NO. 1,684,671, DATED
SEPTEMBER 18, 1928, BY SELLING AND DELIVERING BITUMINOUS EMULSION TO A
ROAD BUILDER, KNOWING THAT IT WAS TO BE USED IN NEWARK IN ACCORDANCE
WITH THE METHOD DEFINED IN THE CLAIMS OF THE PATENT.  BESIDES DENYING
THE VALIDITY OF THE PATENT, THIS FURTHER DEFENSE WAS INTERPOSED.  IT
WAS INSISTED THAT THE SUIT COULD NOT BE MAINTAINED, EVEN IF THE PATENT
WERE VALID, BECAUSE TO DO SO WOULD GIVE A LIMITED MONOPOLY OF AN
UNPATENTED STAPLE ARTICLE OF COMMERCE.  THE FOLLOWING FACTS WERE PROVED
OR ADMITTED. 

THE BARBER COMPANY AND LEITCH MANUFACTURING COMPANY ARE COMPETING
MANUFACTURERS OF BITUMINOUS EMULSION - AN UNPATENTED STAPLE ARTICLE OF
COMMERCE PRODUCED IN THE UNITED STATES BY MANY CONCERNS AND IN COMMON
USE BY THEIR CUSTOMERS FOR MANY PURPOSES.  BY BUILDERS OF MACADAM ROADS
THE EMULSION HAS LONG BEEN USED AS A COATING FOR CRUSHED STONE AND
OTHERWISE.  WITH BUILDERS OF CEMENT CONCRETE ROADS IT HAS RECENTLY COME
INTO USE FOR A FILM ON THE SURFACE OF THE ROADWAY TO RETARD EVAPORATION
DURING CURING.  FOR THE METHOD OF SO RETARDING EVAPORATION THE BARBER
COMPANY ACQUIRED THE PROCESS PATENT SUED ON, AND SEEKS TO USE IT TO
SECURE A LIMITED MONOPOLY IN THE BUSINESS OF PRODUCING AND SELLING THE
BITUMINOUS MATERIAL FOR PRACTICING AND CARRYING OUT THE PATENTED
METHOD.  THE COMPANY DOES NOT ITSELF ENGAGE IN ROAD BUILDING, OR
COMPETE WITH ROAD CONTRACTORS.  IT DOES NOT SEEK TO MAKE ROAD BUILDERS
PAY A ROYALTY FOR EMPLOYING THE PATENTED METHOD.  IT DOES NOT GRANT TO
ROAD BUILDERS A WRITTEN LICENSE TO USE THE PROCESS.  FN2  BUT IT ADOPTS
A METHOD OF DOING THE BUSINESS WHICH IS THE PRACTICAL EQUIVALENT OF
GRANTING A WRITTEN LICENSE WITH A CONDITION THAT THE PATENTED METHOD
MAY BE PRACTICED ONLY WITH EMULSION PURCHASED FROM IT.  FOR ANY ROAD
BUILDER CAN BUY EMULSION FROM IT FOR THAT PURPOSE, AND WHENEVER SUCH A
SALE IS MADE, THE LAW IMPLIES AUTHORITY TO PRACTICE THE INVENTION.  ON
THE OTHER HAND THE BARBER COMPANY SUES AS CONTRIBUTORY INFRINGER A
COMPETING MANUFACTURER OF THIS UNPATENTED MATERIAL WHO SELLS IT TO A
ROAD BUILDER FOR SUCH USE.  THUS, THE SOLE PURPOSE TO WHICH THE PATENT
IS PUT IS THEREBY TO SUPPRESS COMPETITION IN THE PRODUCTION AND SALE OF
STAPLE UNPATENTED MATERIAL FOR THIS USE IN ROAD BUILDING. 

THE DISTRICT COURT DISCUSSED, BUT FOUND IT UNNECESSARY TO PASS UPON,
THIS DEFENSE, AS IT DISMISSED THE BILL ON THE GROUND THAT THE PATENT
WAS VOID.  14 F.SUPP.  212.  THE COURT OF APPEALS SUSTAINED THE
VALIDITY OF THE PATENT; CONCLUDED THAT THERE WAS CONTRIBUTORY
INFRINGEMENT; HELD THAT MAINTENANCE OF THE SUIT WAS NOT FORBIDDEN BY
THE RULE DECLARED IN CARBICE CORPORATION V. AMERICAN PATENTS
DEVELOPMENT CORP., 283 U.S. 27; AND DIRECTED THAT THE DISTRICT COURT
ENTER A DECREE ADJUDGING THE CLAIMS IN ISSUE VALID AND INFRINGED, AND
AWARDING AN ACCOUNTING.  89 F.(2D) 960.  ONE JUDGE DISSENTED ON THE
GROUND THAT THE DECREE DISMISSING THE BILL SHOULD HAVE BEEN AFFIRMED
UNDER THE RULE DECLARED IN THE CARBICE CASE.  A PETITION FOR CERTIORARI
LIMITED TO THAT QUESTION WAS APPLIED FOR AND GRANTED. 

THAT THE PATENT DID NOT CONFER UPON THE BARBER COMPANY THE RIGHT TO
BE FREE FROM COMPETITION IN SUPPLYING UNPATENTED MATERIAL TO BE USED IN
PRACTICING THE INVENTION WAS SETTLED BY THE RULE DECLARED IN THE
CARBICE CASE.  THAT SUIT WAS LIKEWISE ONE TO ENJOIN AN ALLEGED
CONTRIBUTORY INFRINGER.  THE SUBJECT OF THE PATENT WAS A REFRIGERATING
TRANSPORTATION PACKAGE IN WHICH THE REFRIGERANT TO BE USED WAS SOLID
CARBON DIOXIDE, OR "DRY ICE."  THE SOLE BUSINESS OF THE DRY ICE
CORPORATION WAS TO MAKE AND SELL DRY ICE - WHICH IS UNPATENTED
MATERIAL.  IT DID NOT MAKE OR SELL TRANSPORTATION PACKAGES IN WHICH DRY
ICE WAS USED AS A REFRIGERANT.  IT DID NOT ISSUE TO OTHER CONCERNS
LICENSES TO MAKE SUCH PACKAGES UPON PAYMENT OF A STIPULATED ROYALTY. 
IT DID NOT FORMALLY LICENSE BUYERS OF ITS DRY ICE TO USE THE INVENTION
IN SUIT.  BUT EACH INVOICE FOR DRY ICE BORE A NOTICE IN EFFECT THAT THE
PATENTED CONTAINER COULD BE USED ONLY WITH DRY ICE PURCHASED FROM THE
CORPORATION.  IN DECLARING THAT RELIEF MUST BE DENIED THE COURT SAID: 

"THE DRY ICE CORPORATION HAS NO RIGHT TO BE FREE FROM COMPETITION IN
THE SALE OF SOLID CARBON DIOXIDE.  CONTROL OVER THE SUPPLY OF SUCH
UNPATENTED MATERIAL IS BEYOND THE SCOPE OF THE PATENTEE'S MONOPOLY; AND
THIS LIMITATION, INHERENT IN THE PATENT GRANT, IS NOT DEPENDENT UPON
THE PECULIAR FUNCTION OR CHARACTER OF THE UNPATENTED MATERIAL OR ON THE
WAY IN WHICH IT IS USED.  RELIEF IS DENIED BECAUSE THE DRY ICE
CORPORATION IS ATTEMPTING, WITHOUT SANCTION OF LAW, TO EMPLOY THE
PATENT TO SECURE A LIMITED MONOPOLY OF UNPATENTED MATERIAL USED IN
APPLYING THE INVENTION."  (PP. 33-34.) 

"IN THE CASE AT BAR THE PLAINTIFFS NEITHER SELL NOR LICENSE OTHERS TO
SELL COMPLETE TRANSPORTATION PACKAGES.  THEY SUPPLY MERELY ONE OF
SEVERAL MATERIALS ENTERING INTO THE COMBINATION; AND ON THAT COMMODITY
THEY HAVE NOT BEEN GRANTED A MONOPOLY.  THEIR ATTEMPT TO SECURE ONE
CANNOT BE SANCTIONED."  (PP. 34-35.) 

THE BARBER COMPANY CONTENDS THAT THE RULE OF THE CARBICE CASE IS NOT
APPLICABLE BECAUSE IT HAS NOT ENTERED INTO ANY CONTRACT OR AGREEMENT
AIMED AT EXPANSION OF THE PATENT MONOPOLY.  IT ARGUES THAT IN THE
CARBICE CASE, AS IN MOTION PICTURE PATENTS CO. V. UNIVERSAL FILM MFG.
CO., 243 U.S. 502, THE ATTEMPT TO SECURE THE "PARTIAL MONOPOLY OF AN
UNPATENTED MATERIAL, OUTSIDE OF AND APART FROM THE PATENT MONOPOLY" WAS
MADE BY CONTRACT OR NOTICE, WHEREAS THE BARBER COMPANY HAS MADE NO
ATTEMPT "BY CONTRACT, NOTICE, OR OTHERWISE, TO EXPAND ITS PATENT
MONOPOLY BY LIMITATIONS, OR TO RESERVE OR CREATE ANY MONOPOLY IN
EMULSION OUTSIDE OF, OR APART FROM, ITS PATENT MONOPOLY"; THAT ITS
"CUSTOMERS FOR EMULSION HAVE NO MORE THAN THE UNCONDITIONED LICENSE TO
USE IMPLIED BY LAW, AND ARE UNDER NO RESTRICTION"; AND THAT NEITHER THE
DEFENDANT NOR ITS CUSTOMERS HAS ANY "RELATION WITH THE PATENT OWNER." 

THE DISTINCTION UPON WHICH THE BARBER COMPANY THUS RESTS IS WITHOUT
LEGAL SIGNIFICANCE.  THE COURT HELD IN THE CARBICE CASE THAT THE
LIMITATION UPON THE SCOPE OR USE OF THE PATENT WHICH IT APPLIED WAS
"INHERENT IN THE PATENT GRANT."  IT DENIED RELIEF, NOT BECAUSE THERE
WAS A CONTRACT OR NOTICE HELD TO BE INOPERATIVE, BUT ON THE BROAD
GROUND THAT THE OWNER OF THE PATENT MONOPOLY, IGNORING THE LIMITATION
"INHERENT IN THE PATENT GRANT," SOUGHT BY ITS METHOD OF DOING BUSINESS
TO EXTEND THE MONOPOLY TO UNPATENTED MATERIAL USED IN PRACTICING THE
INVENTION.  BY THE RULE THERE DECLARED EVERY USE OF A PATENT AS A MEANS
OF OBTAINING A LIMITED MONOPOLY OF UNPATENTED MATERIAL IS PROHIBITED. 
IT APPLIES WHETHER THE PATENT BE FOR A MACHINE, A PRODUCT, OR A
PROCESS.  IT APPLIES WHATEVER THE NATURE OF THE DEVICE BY WHICH THE
OWNER OF THE PATENT SEEKS TO EFFECT SUCH UNAUTHORIZED EXTENSION OF THE
MONOPOLY.  NOTHING IN LEEDS & CATLIN CO. V. VICTOR TALKING MACHINE CO.,
213 U.S. 325, LIMITS IT.  REVERSED. 

FN1  THE SUIT WAS BEGUN BY THE BARBER ASPHALT COMPANY, THE THEN OWNER
OF THE PATENT.  DURING THE PENDENCY OF THE SUIT THAT CORPORATION
TRANSFERRED THE PATENT, TOGETHER WITH ALL CLAIMS FOR DAMAGES AND
PROFITS FOR PAST INFRINGEMENT AND THE RIGHT TO SUE THEREFOR, TO THE
BARBER COMPANY, INC. UPON SUPPLEMENTAL BILL OF COMPLAINT, IT WAS
SUBSTITUTED AS PLAINTIFF.  THE STULZ-SICKLES COMPANY, THE JOBBER
THROUGH WHOM THE SALE WAS MADE, WAS A CO-DEFENDANT THROUGHOUT THE
PROCEEDINGS BELOW; BUT DECLINED TO JOIN IN THE PETITION FOR
CERTIORARI. 

FN2  NO WRITTEN LICENSE HAD, SO FAR AS APPEARS, BEEN GRANTED BY THE
BARBER COMPANY TO ANY ONE.  ITS PREDECESSOR, THE BARBER ASPHALT COMPANY
(SEE NOTE 1), HAD GRANTED A WRITTEN LICENSE TO JOHNSON-MARCH
CORPORATION, WHICH PAID NO ROYALTY BUT BOUGHT FROM THE BARBER ASPHALT
COMPANY "CUTBACK MATERIAL" FOR USE IN THE EAST, AND "TRINIDAD OR
BERMUDEZ ASPHALT" FOR USE IN THE WEST. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THE CASE. 
..END :















ALABAMA POWER CO. V. ICKES, 302 U.S. 464 


NOS. 84 AND 85.  ARGUED DECEMBER 6, 7, 1937.  - DECIDED JANUARY 3,
1938.  - 67 APP. D.C. 230 -  91 F.(2D) 303, AFFIRMED. 


1.  AN ELECTRIC POWER COMPANY, OPERATING IN ALABAMA UNDER A
NONEXCLUSIVE FRANCHISE, SUED TO ENJOIN THE PERFORMANCE OF AGREEMENTS
WHEREBY A FEDERAL OFFICIAL PURPORTING TO ACT UNDER TITLE II OF THE
NATIONAL INDUSTRIAL RECOVERY ACT, AS AMENDED, UNDERTOOK ON BEHALF OF
THE UNITED STATES TO MAKE LOANS AND GRANTS OF MONEY TO SEVERAL ALABAMA
MUNICIPALITIES TO ASSIST EACH OF THEM, RESPECTIVELY, IN CONSTRUCTING AN
ELECTRICAL DISTRIBUTION SYSTEM WITHIN ITS MUNICIPAL LIMITS.  HELD THAT
THE COMPANY HAD NO STANDING TO QUESTION THE VALIDITY OF THE LOANS AND
GRANTS UNDER THE FEDERAL STATUTE, OR THE VALIDITY OF THE STATUTE IN
THAT REGARD UNDER THE FEDERAL CONSTITUTION, SINCE THE ONLY DAMAGE
THREATENING THE COMPANY WAS THE DAMAGE OF LAWFUL COMPETITION - DAMNUM
ABSQUE INJURIA.  PP. 478, 479. 

ACCORDING TO THE FINDINGS IN THE CASES EACH OF THE MUNICIPALITIES HAD
AUTHORITY TO CONSTRUCT AND OPERATE ITS PROPOSED PLANT AND DISTRIBUTION
SYSTEM IN COMPETITION WITH THE COMPANY, AND TO BORROW MONEY FOR THAT
PURPOSE, AND HAD DETERMINED TO DO SO OF ITS OWN FREE WILL; NO
CONSPIRACY WAS INVOLVED, NOR ANY DESIRE TO CAUSE INJURY OR FINANCIAL
LOSS TO THE COMPANY, NOR PURPOSE TO REGULATE RATES OR FOSTER MUNICIPAL
OWNERSHIP OF UTILITIES.  NEITHER THE UNITED STATES NOR ANY OF THE
RESPONDENT-OFFICERS HAD RESERVED ANY RIGHT TO REQUIRE AN ELIMINATION OF
COMPETITION OR DESIGNATE ANY AGENCY FROM WHICH THE MUNICIPALITY MUST
PURCHASE ITS POWER.  EACH MUNICIPALITY WAS LEFT ENTIRELY FREE FROM
FEDERAL CONTROL OR DIRECTION IN RESPECT OF THE MANAGEMENT AND CONTROL
OF ITS PLANT AND BUSINESS. 

2.  FINDINGS OF THE DISTRICT COURT, MADE AFTER HEARING, SUPPORTED BY
SUBSTANTIAL EVIDENCE, AND NOT QUESTIONED BY THE INTERMEDIATE APPELLATE
COURT, HELD UNASSAILABLE IN THIS COURT.  P. 477. 

3.  THE INTEREST OF A TAXPAYER IN THE MONEYS OF THE FEDERAL TREASURY
AFFORDS HIM NO STATUS TO ENJOIN EXPENDITURES UPON THE GROUND THAT THEY
ARE FOR AN UNCONSTITUTIONAL PURPOSE.  P. 478. 

4.  COURTS HAVE NO POWER TO ENJOIN THE EXECUTION OF AN ACT OF
CONGRESS UPON THE GROUND OF UNCONSTITUTIONALITY, WHERE NO WRONG
DIRECTLY RESULTING IN THE VIOLATION OF A LEGAL RIGHT IS PRESENTED IN A
JUSTICIABLE ISSUE.  P. 479. 

ALABAMA POWER CO. V. ICKES, FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC
WORKS, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 301 U.S. 681, TO REVIEW DECREES AFFIRMING THE DISMISSAL
OF BILLS BROUGHT AGAINST THE EMERGENCY PUBLIC WORKS ADMINISTRATOR AND
OTHER GOVERNMENT OFFICIALS TO RESTRAIN THE MAKING OF LOANS AND GRANTS
OF MONEY TO CERTAIN MUNICIPALITIES IN ALABAMA, IN AID OF THE
CONSTRUCTION OF MUNICIPAL LIGHT AND POWER PLANTS.  THESE CASES WERE
CONSOLIDATED AND TRIED WITH OTHERS WHICH LATER BECAME MOOT.  NO. 84
ALSO BECAME MOOT IN SO FAR AS IT RELATED TO THREE OF THE MUNICIPALITIES
ORIGINALLY NAMED IN THE BILL.  THE OPINION OF THE DISTRICT COURT IS IN
LXIV WASH. L. REP. 563. 

I. THE PETITIONER HAS SHOWN FACTS WHICH ENTITLE IT TO QUESTION THE
LEGALITY OF THE RESPONDENTS' ACTS. 

THE RESPONDENTS HAVE ARGUED IN THE LOWER COURTS THAT THE TEST OF
WHETHER THEY OWE A DUTY TO THE PETITIONER TO REFRAIN FROM THE ACTS
THREATENED - ADMITTING FOR THE PURPOSE OF THIS ARGUMENT THAT THEY ARE
UNAUTHORIZED - IS WHETHER PRIVATE INDIVIDUALS WOULD INCUR LIABILITY
FROM COMMITTING THEM.  THEY ARGUE THAT THE RESPONDENTS, STRIPPED OF
LEGAL AUTHORITY, ARE MERELY PRIVATE INDIVIDUALS AND THAT THE RIGHTS AND
DUTIES OF THE PARTIES MUST BE DETERMINED BY PRINCIPLES APPLICABLE IN
SUITS BETWEEN ONE PRIVATE INDIVIDUAL AND ANOTHER. 

THE ARGUMENT IS AS UNSOUND IN PRINCIPLE AS IT IS OPPOSED TO
AUTHORITY.  IN MANY CASES THE ACT OF THE OFFICER, IF UNAUTHORIZED,
WOULD FIT INTO SUCH COMMON FORMS OF ACTION AS TRESPASS, BUT IN A GREAT
AND GROWING FIELD OF ACTIVITY AN OFFICER ACTING UNDER COLOR OF
AUTHORITY IS NOT ACTING AS A PRIVATE PERSON, THE CONSEQUENCES OF HIS
ACTS ARE NOT THE SAME AS THOSE OF A PRIVATE PERSON, AND NO PRIVATE
PERSON COULD CONCEIVABLY PROPOSE TO ACT IN THE SAME WAY.  IN SHORT, THE
ARGUMENT IS WHOLLY VERBAL AND UNREALISTIC. 

BUT THE ERROR IN PRINCIPLE GOES DEEPER.  THE ARGUMENT ASSUMES THAT
THE LEGAL PRINCIPLES DETERMINATIVE OF THE STANDING OF THE PLAINTIFF TO
QUESTION THE LEGALITY OF ACTS OF A PUBLIC OFFICER SHOULD BE THOSE WHICH
HAVE BEEN EVOLVED TO DETERMINE RIGHTS TO RECOVER AGAINST A PRIVATE
PERSON.  NOTHING COULD BE MORE FALLACIOUS.  THE PRINCIPLES DETERMINING
THE RIGHT TO RECOVER AGAINST PRIVATE PERSONS ARE THE RESULT OF LONG AND
CAREFUL EVALUATION OF THE CONFLICTING INTERESTS OF PRIVATE PERSONS.  A
RULE OF LAW WHICH MAKES THE DIFFERENCE BETWEEN VICTORY FOR THE
PLAINTIFF AND VICTORY FOR THE DEFENDANT REPRESENTS THE ACCUMULATED
WISDOM OF COURTS AND LEGISLATURES AS TO HOW PRIVATE PERSONS SHOULD LIVE
TOGETHER AND HOW LOSS, AS BETWEEN THEM, SHOULD BE BORNE.  THESE ISSUES
INVOLVE BASIC CONSIDERATIONS OF POLICY; BUT TO MAKE THAT SAME POLICY
DETERMINATIVE OF THE RIGHT TO QUESTION THE STATUTORY AUTHORITY OF A
PUBLIC OFFICER DISREGARDS VITAL DIFFERENCES. 

THE CONSIDERATIONS WHICH SHOULD BE, AND HAVE BEEN, DETERMINATIVE WITH
COURTS IN FORMULATING THE PRINCIPLES AFFECTING THE RIGHT OF PRIVATE
PERSONS TO QUESTION THE AUTHORITY OF PUBLIC OFFICERS ARE THE NECESSITY
OF AFFORDING PROTECTION AGAINST INJURY RESULTING FROM ABUSE OF
AUTHORITY, WHILE AVOIDING OFFICIOUS AND BURDENSOME LITIGATION, AND THE
ASSERTION OF FANCIFUL WRONGS AND INSUBSTANTIAL INJURIES.  RECOGNIZING,
AS THEY SHOULD AND MUST, THIS VITAL DIFFERENCE IN THE FUNCTION AND
PURPOSE OF THE RULES INVOLVED IN DETERMINING WHEN A PLAINTIFF MAY
QUESTION THE AUTHORITY OF A PUBLIC OFFICER AND WHEN HE MAY RECOVER FROM
ANOTHER PRIVATE INDIVIDUAL, COURTS HAVE NOT, AS RESPONDENTS ARGUE,
BLINDLY CONFUSED THE TWO, BUT IN DETERMINING THE FORMER HAVE REFERRED
TO THE LATTER MERELY AS A GUIDE, BY ANALOGY, TO TYPES OF INJURIES TO
PLAINTIFFS OF WHICH THE LAW WILL TAKE NOTE.  SEE EX PARTE YOUNG, 209
U.S. 123. 

IN PHILADELPHIA CO. V. STIMSON, 223 U.S. 605, 621, THE SECRETARY OF
WAR, IF HE HAD BEEN A PRIVATE CITIZEN, WOULD HAVE INCURRED NO LIABILITY
BY THREATENING SUITS TO ENFORCE A HARBOR LINE WHICH HE HAD DRAWN. 
SIMILARLY PRIVATE PERSONS WOULD HAVE OWED NO DUTY TO THE PLAINTIFF
WHICH WOULD HAVE BEEN VIOLATED BY THE ACTS THREATENED BY THE PUBLIC
OFFICERS IN PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510 OR TERRACE V.
THOMPSON, 263 U.S. 197, OR HAMMER V. DAGENHART, 247 U.S. 251, OR TRUAX
V. RAICH, 239 U.S. 33. 

IN SANTA FE PACIFIC R. CO. V. LANE, 244 U.S. 492, IF THE SECRETARY OF
THE INTERIOR HAD BEEN A PRIVATE INDIVIDUAL, AND ASSERTED A CLAIM
UNAUTHORIZED IN AMOUNT FOR SURVEYING PUBLIC LAND BEFORE ISSUING A
PATENT - IF THE SITUATION CAN BE IMAGINED - NO LEGAL DUTY TO PLAINTIFF
WOULD HAVE BEEN VIOLATED.  SIMILARLY IN LUDWIG V. WESTERN UNION
TELEGRAPH CO., 216 U.S. 146, THE PLAINTIFF SUED TO ENJOIN A STATE
OFFICIAL FROM DECLARING THAT IT WAS WITHOUT AUTHORITY TO DO BUSINESS IN
THE STATE - AN ACT WHICH NO PRIVATE INDIVIDUAL COULD PERFORM, AND WHICH
IF THREATENED WOULD NOT INVOLVE LIABILITY. 

IN ALL THESE CASES THE PRINCIPLE ENTITLING THE PLAINTIFFS TO QUESTION
THE OFFICIALS' AUTHORITY IS THE SAME - THE PLAINTIFFS HAD A RIGHT TO
HOLD THEIR PROPERTY, OR CONDUCT THEIR BUSINESS, FREE FROM INJURY BY
PUBLIC OFFICIALS THROUGH ACTS DONE WITHOUT LAWFUL POWER AND IN ABUSE OF
AUTHORITY.  PUBLIC OFFICIALS OWE A DUTY TO REFRAIN FROM INTERFERING
WITH THE PROPERTY OR BUSINESS OF THE PLAINTIFFS AND FROM INJURING THEM
THEREIN WITHOUT AUTHORITY OR IN ABUSE OF IT.  WHEN AN ACT, IN VIOLATION
OF THIS DUTY, WILL BE THE PROXIMATE CAUSE OF CONSEQUENCES TO THE
PLAINTIFF SO SUBSTANTIAL AND ONEROUS AS TO BE COMPARABLE TO INJURIES
WHICH THE LAW IS ACCUSTOMED TO NOTE AS LEGAL DAMAGE, A CAUSE OF ACTION
ARISES, WITH THE RIGHT TO AN INJUNCTION. 

THE RULE IS NO DIFFERENT WHEN THE INJURY FLOWS FROM AN UNAUTHORIZED
USE OF THE SPENDING POWER.  THERE THE PLAINTIFF ALSO ESTABLISHES HIS
RIGHT TO QUESTION THE AUTHORITY OF THE OFFICER IF HE IS - "ABLE TO SHOW
NOT ONLY THAT THE STATUTE IS INVALID BUT THAT HE HAS SUSTAINED OR IS
IMMEDIATELY IN DANGER OF SUSTAINING SOME DIRECT INJURY AS THE RESULT OF
ITS ENFORCEMENT, AND NOT MERELY THAT HE SUFFERS IN SOME INDEFINITE WAY
IN COMMON WITH PEOPLE GENERALLY."  FROTHINGHAM V. MELLON, 262 U.S. 447,
488. 

THIS PETITIONER HAS SHOWN JUST SUCH IMMEDIATE THREAT OF DIRECT AND
SPECIAL INJURY.  IN THE PRESENT CASES THE ADMINISTRATOR HAS AUTHORIZED,
FOR PURPOSES WHICH HE CLAIMS ARE AUTHORIZED BY LAW, THE CONSTRUCTION,
AS FEDERAL PUBLIC WORKS PROJECTS, UNDER HIS SUPERVISION AND WITH FUNDS
PROVIDED BY HIM, OF FACILITIES WHICH ARE INTENDED TO SUPPLANT THE
PETITIONER'S, AND WHICH MUST DO SO IF THE LOANS CONTEMPLATED ARE TO BE
REPAID.  IT IS THIS ACTION OF HIS, IN CAUSING THE CONSTRUCTION FOR
ALLEGED FEDERAL PURPOSES AND WITH FEDERAL FUNDS, WHICH THREATENS THE
PETITIONER'S BUSINESS WITH DESTRUCTION.  THE ELIMINATION OF THE
PETITIONER FROM THE TOWNS IS ESSENTIAL TO THE FINANCING OF THE
PROJECTS.  THE TOWNS HAVE ALREADY PROVIDED FOR THIS ELIMINATION.  IN
THE WORDS OF THEIR OWN OFFICIALS, THEY INTEND TO SUPPLANT THE
PETITIONER'S DISTRIBUTION SYSTEMS. 

IT IS EQUALLY PLAIN THAT CONSTRUCTION OF EACH SUPPLANTING SYSTEM IS
TO BE UNDERTAKEN AS A FEDERAL PUBLIC-WORKS PROJECT, SUBSIDIZED BY THE
ADMINISTRATOR.  THE PURPOSE OF THE PUBLIC-WORKS PROGRAM WAS TO CAUSE
CONSTRUCTION WHICH WOULD NOT OTHERWISE TAKE PLACE.  WE REFER TO THE
OFFICIAL DECLARATION OF PWA THAT THE PUBLIC GRANTS "ARE GIVEN TO INDUCE
PUBLIC BODIES TO UNDERTAKE CONSTRUCTION OF USEFUL WORKS." 

THE FACT THAT THE IMPACT OF THE INJURY UPON THE PETITIONER WILL BE
PRODUCED BY ACTION OF THE TOWNS DOES NOT RENDER THE ADMINISTRATOR
IMMUNE FROM PETITIONER'S SUIT.  THE FACT REMAINS THAT HE IS THE
PROXIMATE AND MOVING CAUSE OF THE INJURY WHICH IT WILL SUFFER SOLELY
BECAUSE OF HIS UNLAWFUL ACTS IN AUTHORIZING AND FINANCING THESE
PARTICULAR FEDERAL PUBLIC-WORKS PROJECTS WITH GIFTS AND REVENUE LOANS,
THE REPAYMENT OF WHICH CONTEMPLATES AND REQUIRES THE DESTRUCTION OF
PETITIONER'S BUSINESS IN THE TOWNS.  IT IS WELL SETTLED THAT WHERE ONE
WITHOUT WARRANT OR JUSTIFICATION IN LAW, INDUCES AND ENABLES ANOTHER TO
INFLICT INJURY ON A THIRD PARTY THE WRONGDOER IS LIABLE EVEN THOUGH THE
INTERVENING PARTY MAY ACT WITHIN HIS LEGAL RIGHTS.  HITCHMAN COAL &
COKE CO. V. MITCHELL, 245 U.S. 229, 251-252; WALKER V. CRONIN, 107
MASS. 555; THACKER COAL CO. V. BURKE, 59 W. VA. 253; DEON V. KIRBY
LUMBER CO., 162 LA. 671; U.S. FIDELITY & GUARANTY CO. V. MILLONAS, 206
ALA. 147; GIBSON V. FIDELITY AND CASUALTY CO., 232 ILL. 49; RICE V.
MANLEY, 66 N.Y. 82; BENTON V. PRATT, 2 WEND.  386; COMPARE ANGLE V.
CHICAGO, ST. PAUL, M. & O. RY. CO., 151 U.S. 1, 12-13, 22, 23.  AS THE
TRIAL COURT CONCLUDED, "...  THE FURNISHING OF THE FUNDS BY THE
GOVERNMENT AND THE RESULTING COMPETITION ARE SO CLOSELY CONNECTED THAT,
IF THE STATUTE UNDER WHICH THE FUNDS ARE SUPPLIED IS UNCONSTITUTIONAL,
OR IF THE OFFICER FURNISHING THE FUNDS IS NOT AUTHORIZED TO DO SO, THEN
THE PLAINTIFFS MAY TEST THOSE QUESTIONS ON THE MERITS."  CF. GREENWOOD
COUNTY V. DUKE POWER CO., 81 F.(2D) 986, 1001, 1002; HO AH KOW V.
NUNAN, 12 FED. CAS. NO. 6,546, AT P. 255. 

THE RESPONDENTS' ACTS ARE THE PROXIMATE CAUSE OF THE PETITIONER'S
INJURY SINCE THAT INJURY IS THE INEVITABLE AND CONTEMPLATED RESULT OF
THE AUTHORIZATION OF THE PROJECTS; INDEED, IS ESSENTIAL TO THEIR
ACCOMPLISHMENT AS PLANNED.  THE PETITIONER'S BUSINESS MUST BE TAKEN
FROM IT IN ORDER TO REPAY THE ADMINISTRATOR. 

THE RESPONDENTS DO NOT AND CANNOT ARGUE THAT BECAUSE THE INTERVENING
ACTS OF THIRD PERSONS ARE LAWFUL, RESULTING CONSEQUENCES TO A PLAINTIFF
CANNOT BE LEGAL INJURY.  THE CASES CITED SUPRA NEGATIVE ANY SUCH
ARGUMENT.  NOR CAN THEY ARGUE THAT THE CONSEQUENCES TO THE PETITIONER
DO NOT CONSTITUTE LEGAL INJURY BECAUSE THEY REACH THE PETITIONER
THROUGH THE COMPETITION OF A RIVAL.  THAT THE INJURY FROM COMPETITION
IS INJURY RECOGNIZED BY THE LAW WAS EXPRESSLY HELD BY THIS COURT IN
WALLA WALLA CITY V. WALLA WALLA WATER CO., 172 U.S. 1, 11.  SIMILARLY
IN FROST V. CORPORATION COMMISSION, 278 U.S. 515. 

THE RESPONDENTS' ARGUMENT SEEMS TO BE THAT BECAUSE THE INTERVENING
ACT, WHICH FINALLY PRODUCES THE INJURY, IS LEGAL COMPETITION, THE
CONSEQUENCES ARE NOT LEGAL INJURY.  HERE, AGAIN, AS MIGHT BE EXPECTED,
BOTH AUTHORITY AND REASON ARE AGAINST SUCH AN ARGUMENT.  SEE COLORADO
CENTRAL POWER CO. V. MUNICIPAL POWER DEVELOPMENT CO., 1 F.SUPP.  961;
CAMPBELL V. ARKANSAS-MISSOURI POWER CO., 55 F.(2D) 560; CF. OKLAHOMA
UTILITIES CO. V. HOMINY, 2 F.SUPP.  849; SEE ALSO IOWA SOUTHERN
UTILITIES CO. V. CASSILL, 69 F.(2D) 703; GALLARDO V. PORTO RICO RY. L.
& P. CO., 18 F.(2D) 918, AND CITIZENS ELECTRIC ILLUMINATING CO. V.
LACKAWANNA & W.V. POWER CO., 255 PA. 145. 

THUS THE ARGUMENT THAT THE PETITIONER HAS NO STANDING TO COMPLAIN IF
SUBSEQUENT OPERATION OF THE PLANTS BY THE TOWNS IS LAWFUL FALLS TO THE
GROUND.  THE PETITIONER CAN COMPLAIN, REGARDLESS OF THE LAWFULNESS OF
THE OPERATION, IF THE ACTS WHICH CAUSE IT ARE IN VIOLATION OF LAW.  THE
ADMINISTRATOR OWES THE PETITIONER A DUTY NOT TO CAUSE PETITIONER INJURY
BY ACTS DONE BEYOND AND WITHOUT AUTHORITY IN LAW.  IF HE BREACHES THAT
DUTY, IT AVAILS HIM NOTHING THAT THE IMPACT OF THE INJURY COMES FROM
OPERATION OF THE PLANTS BY THIRD PARTIES WHICH MAY BE LAWFUL.  IT IS
THE UNLAWFULNESS OF HIS ACTS AND NOT OF THE TOWNS' ACTS OF WHICH
PETITIONER COMPLAINS.  THIS IS NOT A SUIT TO ENJOIN COMPETITION BY THE
TOWNS.  THEY WILL BE AS FREE AFTER AS BEFORE ANY DECREE ENTERED HEREIN
TO ENGAGE IN IT.  THIS IS A SUIT TO ENJOIN THE UNLAWFUL ACTS OF THE
ADMINISTRATOR WHICH CAUSE THE INJURY TO PETITIONER AND WHICH BREACH THE
DUTY WHICH HE OWES THEM. 

II.  TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT, AND THE
EMERGENCY RELIEF APPROPRIATION ACT OF 1935, ARE UNCONSTITUTIONAL
DELEGATIONS OF LEGISLATIVE POWER. 

III.  THE LOANS AND GRANTS ARE UNAUTHORIZED BECAUSE THE ADMINISTRATOR
IN APPROVING THEM HAS APPLIED A STANDARD OR CRITERION WHICH CONGRESS
HAS NOT PROVIDED AND COULD NOT. 

IV.  IF THE STATUTES BE CONSTRUED TO AUTHORIZE WHAT HAS BEEN DONE
HERE, THEY EXCEED ANY POWER DELEGATED TO THE FEDERAL GOVERNMENT AND
VIOLATE THE TENTH AMENDMENT. 

PETITIONER HAS NO STANDING TO CHALLENGE THE CONSTITUTIONAL AND
STATUTORY VALIDITY OF THE PROPOSED LOANS AND GRANTS.  THAT CONCLUSION,
REACHED BY THE COURT BELOW, ACCORDS WITH THE DECISIONS OF EVERY OTHER
APPELLATE COURT WHICH HAS PASSED UPON THE QUESTION.  DUKE POWER CO. V.
GREENWOOD COUNTY, 91 F.(2D) 665; ARKANSAS-MISSOURI POWER COMPANY V.
KENNETT, 78 F.(2D) 911(C.C.A.8TH); ALLEGAN V. CONSUMERS POWER CO., 71
F.(2D) 477(C.C.A.6TH), CERTIORARI DENIED, 293 U.S. 586; KANSAS
UTILITIES CO. V. BURLINGTON, 141 KANS. 926, PETITION FOR CERTIORARI
DISMISSED ON MOTION OF PETITIONER, 296 U.S. 658.  A CONTRARY RESULT
WOULD ESTABLISH EITHER A NEW DOCTRINE OF PRIVATE LAW, ENLARGING THE
RIGHTS OF FRANCHISE HOLDERS AGAINST LAWFUL COMPETITION, OR A NEW
DOCTRINE OF PUBLIC LAW WITH RESPECT TO THE ACTION OF GOVERNMENT
OFFICERS. 

THE LOSS WITH WHICH PETITIONERS ARE THREATENED IS ATTRIBUTABLE TO THE
COMPETITION OF THE CITIES, AND THAT COMPETITION IS VOLUNTARY AND IS
ADMITTEDLY LAWFUL UNDER THE LAW OF ALABAMA AND UNDER THE FOURTEENTH
AMENDMENT.  THE STANDING OF PETITIONER, AS THE HOLDER OF NONEXCLUSIVE
FRANCHISES, IS LIMITED TO COMPLAINTS AGAINST UNAUTHORIZED OR ILLEGAL
COMPETITION, AS IN FROST V. CORPORATION COMMISSION, 278 U.S. 515. 
CASES IN WHICH A CITY IS ACTING IN VIOLATION OF ITS OWN CHARTER POWERS,
SUCH AS CAMPBELL V. ARKANSAS-MISSOURI POWER CO., 55 F.(2D)
560(C.C.A.8TH), HAVE NO APPLICATION, AS WAS RECOGNIZED BY THE SAME
COURT IN THE LATER ARKANSAS-MISSOURI POWER CO. CASE, SUPRA.    THE FACT
THAT THE COMPETITION WILL BE MADE POSSIBLE BY ADVANCES OF FUNDS ALLEGED
TO BE BEYOND THE LAWFUL AUTHORITY OF THE LENDER CANNOT SERVE TO CONFER
ADDITIONAL PROTECTION UPON THE PETITIONER.  CF. RAILROAD CO. V.
ELLERMAN, 105 U.S. 166; SPRUNT & SON V. UNITED STATES, 281 U.S. 249;
CHICAGO JUNCTION CASE, 264 U.S. 258.  AND THE FACT THAT THE LENDER IS
THE UNITED STATES IS LIKEWISE NOT MATERIAL.  SINCE NO LEGALLY PROTECTED
INTEREST OF PETITIONER WILL BE INFRINGED, THERE IS NO OCCASION FOR THE
DEFENDANT TO JUSTIFY THE PROPOSED LOANS AND GRANTS BY SHOWING THE
AUTHORITY OF A VALID STATUTE.  THAT THE SUIT IS BROUGHT AGAINST
GOVERNMENT OFFICERS, SO FAR FROM ENLARGING THE STANDING OF THE
PETITIONER, DISCLOSES THE DEFICIENCY IN ITS CLAIM; FOR IN SUCH SUITS
THE OFFICER IS REQUIRED TO SHOW VALID AUTHORITY ONLY IF HIS ACTS,
VIEWED AS THOSE OF A PRIVATE INDIVIDUAL, WOULD CONSTITUTE AN INVASION
OF AN INTEREST WHICH THE LAW WOULD OTHERWISE PROTECT OR WHICH HAS BEEN
ESPECIALLY CONFERRED BY STATUTE.  IN RE AYERS, 123 U.S. 443; EX PARTE
YOUNG, 209 U.S. 123; EX PARTE LA PRADE, 289 U.S. 444.  CASES HOLDING
THAT A DEFENDANT IS ANSWERABLE WHERE HE HAS INDUCED ANOTHER, BY FRAUD
OR INTIMIDATION OR WITH A SOLELY MALICIOUS MOTIVE, TO CAUSE DAMAGE TO A
PLAINTIFF, HAVE NO APPLICATION TO THE CASES AT BAR. 

THE PROPOSED LOANS AND GRANTS ARE AUTHORIZED BY THE STATUTES. 

THE STATUTES DO NOT UNLAWFULLY DELEGATE LEGISLATIVE POWER TO THE
ADMINISTRATOR. 

THE STATUTORY PROVISIONS ARE A LEGITIMATE EXERCISE OF THE POWER TO
APPROPRIATE MONEY TO PROMOTE THE GENERAL WELFARE. 

THERE IS NO INVASION OF THE RESERVED POWERS OF THE STATES. 

THE ALLEGED IMPROPER PURPOSE, MOTIVE OR STANDARD OF THE ADMINISTRATOR
IS IRRELEVANT. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE CERTAIN "LOAN-AND-GRANT AGREEMENTS" MADE BY THE
FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS WITH FOUR MUNICIPAL
CORPORATIONS LOCATED IN THE STATE OF ALABAMA.  THE BILLS OF COMPLAINT
SOUGHT TO ENJOIN THE EXECUTION OF THESE AGREEMENTS.  EACH AGREEMENT
CONTEMPLATES THE CONSTRUCTION OF AN ELECTRICITY-DISTRIBUTION SYSTEM BY
THE DESIGNATED MUNICIPALITY, AND, TO THAT END, THE PURCHASE, BY THE
ADMINISTRATOR, OF BONDS TO BE ISSUED BY THE MUNICIPALITY AND SECURED BY
A FIRST PLEDGE OF THE REVENUES DERIVED FROM THE OPERATION OF THE
SYSTEM.  IN NO. 84 THIRTY AND IN NO. 85 FORTY-FIVE PER CENT. OF THE
COST OF THE LABOR AND MATERIALS USED IN THE CONSTRUCTION ARE TO BE
DONATED OUTRIGHT.  THE AUTHORITY RELIED UPON FOR THE LOANS AND GRANTS
IS THAT CONTAINED IN TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT
FN1  AS MODIFIED AND CONTINUED BY THE EMERGENCY RELIEF APPROPRIATION
ACT OF 1935.  FN2  TITLE I OF THE FORMER ACT HAS BEEN DECLARED
UNCONSTITUTIONAL BY THIS COURT.  SCHECHTER CORP. V. UNITED STATES, 295
U.S. 495; PANAMA REFINING CO. V. RYAN, 293 U.S. 388.  BUT WE ARE HERE
CONCERNED NOT WITH TITLE I BUT WITH TITLE II OF THE ACT.  SO FAR AS
MATERIAL, THAT TITLE PROVIDES: 

"SEC. 202.  THE ADMINISTRATOR, UNDER THE DIRECTION OF THE PRESIDENT,
SHALL PREPARE A COMPREHENSIVE PROGRAM OF PUBLIC WORKS, WHICH SHALL
INCLUDE AMONG OTHER THINGS THE FOLLOWING:  (A) CONSTRUCTION, REPAIR,
AND IMPROVEMENT OF PUBLIC HIGHWAYS AND PARK WAYS, PUBLIC BUILDINGS, AND
ANY PUBLICLY OWNED INSTRUMENTALITIES AND FACILITIES; (B) CONSERVATION
AND DEVELOPMENT OF NATURAL RESOURCES, INCLUDING CONTROL, UTILIZATION,
AND PURIFICATION OF WATERS, PREVENTION OF SOIL OR COASTAL EROSION,
DEVELOPMENT OF WATER POWER, TRANSMISSION OF ELECTRICAL ENERGY,  ...;
(C) ANY PROJECTS OF THE CHARACTER HERETOFORE CONSTRUCTED OR CARRIED ON
EITHER DIRECTLY BY PUBLIC AUTHORITY OR WITH PUBLIC AID TO SERVE THE
INTERESTS OF THE GENERAL PUBLIC; (D) CONSTRUCTION, RECONSTRUCTION,
ALTERATION, OR REPAIR UNDER PUBLIC REGULATION OR CONTROL OF LOW-COST
HOUSING AND SLUM-CLEARANCE PROJECTS; (E) ANY PROJECT (OTHER THAN THOSE
INCLUDED IN THE FOREGOING CLASSES) OF ANY CHARACTER HERETOFORE ELIGIBLE
FOR LOANS UNDER SUBSECTION (A) OF SECTION 201 OF THE EMERGENCY RELIEF
AND CONSTRUCTION ACT OF 1932, AS AMENDED,  ... 

"SEC. 203.  (A) WITH A VIEW TO INCREASING EMPLOYMENT QUICKLY (WHILE
REASONABLY SECURING ANY LOANS MADE BY THE UNITED STATES) THE PRESIDENT
IS AUTHORIZED AND EMPOWERED, THROUGH THE ADMINISTRATOR OR THROUGH SUCH
OTHER AGENCIES AS HE MAY DESIGNATE OR CREATE, (1) TO CONSTRUCT,
FINANCE, OR AID IN THE CONSTRUCTION OR FINANCING OF ANY PUBLIC-WORKS
PROJECT INCLUDED IN THE PROGRAM PREPARED PURSUANT TO SECTION 202; (2)
UPON SUCH TERMS AS THE PRESIDENT SHALL PRESCRIBE, TO MAKE GRANTS TO
STATES, MUNICIPALITIES, OR OTHER PUBLIC BODIES FOR THE CONSTRUCTION,
REPAIR, OR IMPROVEMENT OF ANY SUCH PROJECT, BUT NO SUCH GRANT SHALL BE
IN EXCESS OF 30(BY LATER ACT 45) PER CENTUM OF THE COST OF THE LABOR
AND MATERIALS EMPLOYED UPON SUCH PROJECT;..." 

THE BILLS OF COMPLAINT CHALLENGE THE VALIDITY OF THE LOANS AND GRANTS
ON THE GROUNDS, AMONG OTHERS, THAT THESE STATUTORY PROVISIONS
PURPORTING TO AUTHORIZE SUCH LOANS AND GRANTS ARE UNCONSTITUTIONAL; AND
THAT, IN ANY EVENT, THE LOANS AND GRANTS DO NOT COME WITHIN THE
STATUTORY PROVISIONS. 

THE INJURY WHICH PETITIONER WILL SUFFER, IT IS CONTENDED, IS THE LOSS
OF ITS BUSINESS AS A RESULT OF THE USE OF THE LOANS AND GRANTS BY THE
MUNICIPALITIES IN SETTING UP AND MAINTAINING RIVAL AND COMPETING
PLANTS; A RESULT, IT IS FURTHER CONTENDED, WHICH WILL BE DIRECTLY
CAUSED BY THE UNLAWFUL ACT OF THE ADMINISTRATOR IN MAKING AND
CONSUMMATING THE LOAN-AND-GRANT AGREEMENTS. 

THE SUITS WERE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA.  THERE, THE RESPONDENTS, IN ADDITION TO DEFENDING
THE VALIDITY OF THE ACTION OF THE ADMINISTRATOR, CONTENDED THAT
PETITIONER WAS WITHOUT LEGAL STANDING TO MAINTAIN THE SUITS.  AFTER A
FULL HEARING, THE DISTRICT COURT HELD THAT PETITIONER HAD STANDING TO
CHALLENGE THE ADMINISTRATOR'S ACTION, BUT DENIED THE INJUNCTIONS AND
DISMISSED THE BILLS OF COMPLAINT UPON THE VIEW THAT THE STATUTORY
PROVISIONS WERE CONSTITUTIONAL AND THAT THEY CONFERRED UPON THE
ADMINISTRATOR THE POWER WHICH HE HAD EXERCISED. 

ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA, THAT COURT FOUND IT UNNECESSARY TO CONSIDER THE VALIDITY OF
THE LOANS AND GRANTS, AND AFFIRMED THE DECREES OF THE DISTRICT COURT
DISMISSING THE BILLS ON THE GROUND THAT NO LEGAL OR EQUITABLE RIGHT OF
THE POWER COMPANY HAD BEEN INVADED, AND THE COMPANY, THEREFORE, WAS
WITHOUT STANDING TO CHALLENGE THE VALIDITY OF THE ADMINISTRATOR'S
ACTS.  91 F.(2D) 303.  WITH THAT VIEW WE AGREE, AND CONFINE OUR
CONSIDERATION OF THE CASES ACCORDINGLY. 

THE TRIAL COURT MADE ELABORATE FINDINGS, BUT FOR PRESENT PURPOSES THE
FOLLOWING IS ALL THAT NEED BE STATED.  PETITIONER IS A CORPORATION
ORGANIZED UNDER THE LAWS OF ALABAMA, HAVING ITS PRINCIPAL OFFICE AND
CORPORATE DOMICILE IN THAT STATE.  RESPONDENT ICKES IS THE
ADMINISTRATOR OF THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS,
DULY APPOINTED BY THE PRESIDENT OF THE UNITED STATES IN PURSUANCE OF
LAW.  THE OTHER RESPONDENTS ARE SUBORDINATE OFFICERS AND AGENTS OF THE
SAME EMERGENCY ADMINISTRATION, OR OFFICERS CONNECTED WITH ITS
OPERATIONS. 

PETITIONER, UNDER ITS CHARTER, HAS THE RIGHT TO MANUFACTURE, SUPPLY
AND SELL ELECTRICAL ENERGY THROUGHOUT THE STATE OF ALABAMA.  AMONG
OTHER COMMUNITIES SERVED BY ITS SYSTEM ARE THE FOUR MUNICIPALITIES HERE
INVOLVED, FROM EACH OF WHICH IT HAS A NON-EXCLUSIVE FRANCHISE GIVING IT
THE RIGHT TO CONSTRUCT, MAINTAIN AND OPERATE WITHIN THE MUNICIPALITY AN
ELECTRICITY-DISTRIBUTION SYSTEM.  PETITIONER IS A TAXPAYER OF EACH OF
THE MUNICIPALITIES, OF THE COUNTIES IN WHICH THEY ARE LOCATED, AND OF
THE STATE, WITH RESPECT TO PETITIONER'S PROPERTIES AND OPERATIONS; AND
IT ALSO IS A TAXPAYER OF THE UNITED STATES WITH RESPECT THERETO. 

EACH OF THE MUNICIPALITIES IS AUTHORIZED UNDER STATE LAW TO CONSTRUCT
AND OPERATE MUNICIPAL ELECTRIC PLANTS AND DISTRIBUTION SYSTEMS, AND TO
ENGAGE IN COMPETITION WITH PETITIONER.  EACH IS AUTHORIZED TO ISSUE
BONDS FOR THE PURPOSE OF FINANCING THE CONSTRUCTION OF SUCH PLANTS AND
TO RECEIVE GRANTS FOR THAT PURPOSE; TO MORTGAGE ITS PLANT OR ANY PART
OF IT AND TO PLEDGE ALL OR ANY PART OF THE REVENUES DERIVED FROM THE
OPERATION OF THE PLANT AS SECURITY FOR THE LOAN.  FN3  IN EACH
MUNICIPALITY AN ELECTION WAS HELD PRIOR TO THE MAKING OF THE LOAN
AGREEMENTS, AT WHICH IT WAS DETERMINED BY A MAJORITY OF THE QUALIFIED
VOTERS THAT THE MUNICIPALITY SHOULD ENGAGE IN THE ELECTRIC BUSINESS. 
THE DISTRICT COURT FURTHER FOUND - 

"EACH OF THE MUNICIPALITIES INVOLVED IN THIS SUIT DETERMINED TO ENTER
INTO THE ELECTRIC DISTRIBUTION BUSINESS OF ITS OWN FREE WILL.  THERE
WAS NO SOLICITATION OR COERCION ON THE PART OF ANY OF THE DEFENDANTS
(RESPONDENTS), THEIR AGENTS OR SUBORDINATES.  THERE WAS AND IS NO
CONSPIRACY BETWEEN ANY OF THE DEFENDANTS AND ANY OTHER PERSON, NOR IS
THERE ANY OTHER EFFORT ON THE PART OF ANY OF THE DEFENDANTS TO, NOR ARE
THEIR ACTIONS MOTIVATED BY A DESIRE TO, CAUSE INJURY OR FINANCIAL LOSS
TO THE PLAINTIFFS, OR TO REGULATE THEIR RATES OR ELECTRIC RATES
GENERALLY, OR TO FOSTER MUNICIPAL OWNERSHIP OF UTILITIES. 

"THE EXPENDITURES UNDER THESE STATUTES INVOLVE NO PURCHASE OF, NOR
CONTRACT PROVIDING FOR, REGULATION BY THE UNITED STATES.  THE FAILURE
OF ANY CITY TO APPLY FOR OR RECEIVE LOANS OR GRANTS UNDER THOSE
STATUTES WILL IMPOSE UPON IT NO DISADVANTAGE OR FINANCIAL LOSS. 

"THE DEFENDANTS HAVE NOT RESERVED ANY RIGHT OR POWER TO INFLUENCE OR
CONTROL RATES TO BE CHARGED BY THE PROPOSED MUNICIPAL POWER PLANTS.... 

"NEITHER THE UNITED STATES NOR ANY OF THE DEFENDANTS HAS RESERVED ANY
RIGHT OR POWER UNDER THE EXISTING CONTRACTS, OR IN ANY OTHER WAY, TO
REQUIRE ANY OF THE MUNICIPALITIES TO ELIMINATE COMPETITION OR TO
DESIGNATE THE PERSON OR AGENCY FROM WHOM THE MUNICIPALITY MUST PURCHASE
ITS POWER.... 

"NEITHER THE UNITED STATES NOR ANY OF THE DEFENDANTS HAS ANY POWER TO
CONTROL THE OPERATION OF THE PROJECTS AFTER CONSTRUCTION IS
COMPLETED.... 

"EACH OF THE PROJECTS HEREIN INVOLVED IS A PART OF A PROGRAM OF
NATIONAL SCOPE, IS DESIGNED TO RELIEVE UNEMPLOYMENT, AND PROMOTES THE
GENERAL WELFARE OF THE UNITED STATES." 

THESE FINDINGS WERE MADE, AFTER HEARING, BY THE DISTRICT JUDGE UPON
UNDISPUTED OR CONFLICTING EVIDENCE.  THE FINDINGS WERE NOT QUESTIONED
BY THE COURT BELOW; AND SINCE THEY ARE NOT WITHOUT SUBSTANTIAL SUPPORT
IN THE EVIDENCE, WE ACCEPT THEM HERE AS UNASSAILABLE.  DAVIS V.
SCHWARTZ, 155 U.S. 631, 636-637; ADAMSON V. GILLILAND, 242 U.S. 350,
353. 

IT, THEREFORE, APPEARS THAT EACH OF THE MUNICIPALITIES IN QUESTION
HAS AUTHORITY TO CONSTRUCT AND OPERATE ITS PROPOSED PLANT AND
DISTRIBUTION SYSTEM IN COMPETITION WITH PETITIONER, AND TO BORROW
MONEY, ISSUE BONDS AND RECEIVE GRANTS FOR THAT PURPOSE; THAT IT
DETERMINED TO DO SO OF ITS OWN FREE WILL, WITHOUT SOLICITATION OR
COERCION; THAT THERE WAS NO CONSPIRACY BETWEEN ANY OF THE RESPONDENTS
AND ANY OTHER PERSON, OR ANY EFFORT OR ACTION MOTIVATED BY A DESIRE TO
CAUSE INJURY OR FINANCIAL LOSS TO PETITIONER, OR ANY PURPOSE TO
REGULATE RATES OR FOSTER MUNICIPAL OWNERSHIP OF UTILITIES.  IT FURTHER
APPEARS THAT NEITHER THE UNITED STATES NOR ANY OF THE RESPONDENTS HAS
RESERVED ANY RIGHT OR POWER TO REQUIRE AN ELIMINATION OF COMPETITION OR
DESIGNATE ANY AGENCY FROM WHICH THE MUNICIPALITY MUST PURCHASE ITS
POWER.  EACH MUNICIPALITY IS LEFT ENTIRELY FREE FROM FEDERAL CONTROL OR
DIRECTION IN RESPECT OF THE MANAGEMENT AND CONTROL OF ITS PLANT AND
BUSINESS.  IN SHORT, THE CASE FOR PETITIONER COMES DOWN TO THE
CONTENTION THAT CONSUMMATION OF THE LOAN-AND-GRANT AGREEMENTS SHOULD BE
ENJOINED ON THE SOLE AND DETACHED GROUND THAT THE ADMINISTRATOR LACKS
CONSTITUTIONAL AND STATUTORY AUTHORITY TO MAKE THEM, AND THAT THE
RESULTING MONEYS, WHICH THE MUNICIPALITIES HAVE CLEAR AUTHORITY TO
TAKE, WILL BE USED BY THE MUNICIPALITIES IN LAWFUL, ALBEIT DESTRUCTIVE,
COMPETITION WITH PETITIONER. 

FIRST.  UNLESS A DIFFERENT CONCLUSION IS REQUIRED FROM THE MERE FACT
THAT PETITIONER WILL SUSTAIN FINANCIAL LOSS BY REASON OF THE LAWFUL
COMPETITION WHICH WILL RESULT FROM THE USE BY THE MUNICIPALITIES OF THE
PROPOSED LOANS AND GRANTS, IT IS CLEAR THAT PETITIONER HAS NO SUCH
INTEREST AND WILL SUSTAIN NO SUCH LEGAL INJURY AS ENABLES IT TO
MAINTAIN THE PRESENT SUITS.  PETITIONER ALLEGES THAT IT IS A TAXPAYER;
BUT THE INTEREST OF A TAXPAYER IN THE MONEYS OF THE FEDERAL TREASURY
FURNISHES NO BASIS FOR AN APPEAL TO THE PREVENTIVE POWERS OF A COURT OF
EQUITY.  MASSACHUSETTS V. MELLON, 262 U.S. 447, 486 ET SEQ. THE
PRINCIPLE ESTABLISHED BY THE CASE JUST CITED IS THAT THE COURTS HAVE NO
POWER TO CONSIDER IN ISOLATION AND ANNUL AN ACT OF CONGRESS ON THE
GROUND THAT IT IS UNCONSTITUTIONAL; BUT MAY CONSIDER THAT QUESTION
"ONLY WHEN THE JUSTIFICATION FOR SOME DIRECT INJURY SUFFERED OR
THREATENED, PRESENTING A JUSTICIABLE ISSUE, IS MADE TO REST UPON SUCH
AN ACT."  THE TERM "DIRECT INJURY" IS THERE USED IN ITS LEGAL SENSE, AS
MEANING A WRONG WHICH DIRECTLY RESULTS IN THE VIOLATION OF A LEGAL
RIGHT.  "AN INJURY, LEGALLY SPEAKING, CONSISTS OF A WRONG DONE TO A
PERSON, OR, IN OTHER WORDS, A VIOLATION OF HIS RIGHT.  IT IS AN ANCIENT
MAXIM, THAT A DAMAGE TO ONE, WITHOUT AN INJURY IN THIS SENSE, (DAMNUM
ABSQUE INJURIA), DOES NOT LAY THE FOUNDATION OF AN ACTION; BECAUSE, IF
THE ACT COMPLAINED OF DOES NOT VIOLATE ANY OF HIS LEGAL RIGHTS, IT IS
OBVIOUS, THAT HE HAS NO CAUSE TO COMPLAIN....  WANT OF RIGHT AND WANT
OF REMEDY ARE JUSTLY SAID TO BE RECIPROCAL.  WHERE THEREFORE THERE HAS
BEEN A VIOLATION OF A RIGHT, THE PERSON INJURED IS ENTITLED TO AN
ACTION."  PARKER V. GRISWOLD, 17 CONN. 288, 302-303.  THE CONVERSE IS
EQUALLY TRUE, THAT WHERE, ALTHOUGH THERE IS DAMAGE, THERE IS NO
VIOLATION OF A RIGHT NO ACTION CAN BE MAINTAINED.    SECOND.  THE ONLY
PERTINENT INQUIRY, THEN, IS WHAT ENFORCEABLE LEGAL RIGHT OF PETITIONER
DO THE ALLEGED WRONGFUL AGREEMENTS INVADE OR THREATEN?  IF CONSPIRACY
OR FRAUD OR MALICE OR COERCION WERE INVOLVED A DIFFERENT CASE WOULD BE
PRESENTED, BUT IN THEIR ABSENCE, PLAINLY ENOUGH, THE MERE CONSUMMATION
OF THE LOANS AND GRANTS WILL NOT CONSTITUTE AN ACTIONABLE WRONG.  NOR
WILL THE SUBSEQUENT APPLICATION BY THE MUNICIPALITIES OF THE MONEYS
DERIVED THEREFROM GIVE RISE TO AN ACTIONABLE WRONG, SINCE SUCH
APPLICATION, BEING LAWFUL, WILL INVADE NO LEGAL RIGHT OF PETITIONER. 
THE CLAIM THAT PETITIONER WILL BE INJURED, PERHAPS RUINED, BY THE
COMPETITION OF THE MUNICIPALITIES BROUGHT ABOUT BY THE USE OF THE
MONEYS, THEREFORE, PRESENTS A CLEAR CASE OF DAMNUM ABSQUE INJURIA. 
STATED IN OTHER WORDS, THESE MUNICIPALITIES HAVE THE RIGHT UNDER STATE
LAW TO ENGAGE IN THE BUSINESS IN COMPETITION WITH PETITIONER, SINCE IT
HAS BEEN GIVEN NO EXCLUSIVE FRANCHISE.  IF ITS BUSINESS BE CURTAILED OR
DESTROYED BY THE OPERATIONS OF THE MUNICIPALITIES, IT WILL BE BY LAWFUL
COMPETITION FROM WHICH NO LEGAL WRONG RESULTS. 

WHAT PETITIONER ANTICIPATES, WE EMPHASIZE, IS DAMAGE TO SOMETHING IT
DOES NOT POSSESS - NAMELY, A RIGHT TO BE IMMUNE FROM LAWFUL MUNICIPAL
COMPETITION.  NO OTHER CLAIM OF RIGHT IS INVOLVED.  IT IS, IN
PRINCIPLE, AS THOUGH AN UNAUTHORIZED LOAN WERE ABOUT TO BE MADE TO
ENABLE THE BORROWER TO PURCHASE A PIECE OF PROPERTY IN RESPECT OF WHICH
HE HAD A RIGHT, EQUALLY WITH A PROSPECTIVE COMPLAINANT, TO BECOME THE
BUYER.  WHILE THE LOAN MIGHT FRUSTRATE COMPLAINANT'S HOPES OF A
PROFITABLE INVESTMENT, IT WOULD NOT VIOLATE ANY LEGAL RIGHT; AND HE
WOULD HAVE NO STANDING TO ASK THE AID OF A COURT TO STOP THE LOAN. 
WHAT DIFFERENCE, IN REAL SUBSTANCE, IS THERE BETWEEN THE CASE SUPPOSED
AND THE ONE IN HAND? 

THE ULTIMATE QUESTION WHICH, THEREFORE, EMERGES IS ONE OF GREAT
BREADTH.  CAN ANYONE WHO WILL SUFFER INJURIOUS CONSEQUENCES FROM THE
LAWFUL USE OF MONEY ABOUT TO BE UNLAWFULLY LOANED MAINTAIN A SUIT TO
ENJOIN THE LOAN?  AN AFFIRMATIVE ANSWER WOULD PRODUCE NOVEL AND
STARTLING RESULTS.  AND THAT QUESTION SUGGESTS ANOTHER:  SHOULD THE
LOAN BE CONSUMMATED, MAY SUCH A ONE SUE FOR DAMAGES?  IF SO, UPON WHAT
GROUND MAY HE SUE EITHER THE PERSON MAKING THE LOAN OR THE PERSON
RECEIVING IT? CONSIDERED APART, THE LENDER OWES THE SUFFERER NO
ENFORCIBLE DUTY TO REFRAIN FROM MAKING THE UNAUTHORIZED LOAN; AND THE
BORROWER OWES HIM NO OBLIGATION TO REFRAIN FROM USING THE PROCEEDS IN
ANY LAWFUL WAY THE BORROWER MAY CHOOSE.  IF SUCH A SUIT CAN BE
MAINTAINED, SIMILAR SUITS BY INNUMERABLE PERSONS ARE LIKEWISE
ADMISSIBLE TO DETERMINE WHETHER MONEY IS BEING LOANED WITHOUT LAWFUL
AUTHORITY FOR USES WHICH, ALTHOUGH HURTFUL TO THE COMPLAINANTS, ARE
PERFECTLY LAWFUL.  THE SUPPOSITION OPENS A VISTA OF LITIGATION HITHERTO
UNREVEALED. 

JOHN DOE, LET US SUPPOSE, IS ENGAGED IN OPERATING A GROCERY STORE. 
RICHARD ROE, DESIRING TO OPEN A RIVAL AND COMPETING ESTABLISHMENT,
SEEKS A LOAN FROM A MANUFACTURING CONCERN WHICH, UNDER ITS CHARTER, IS
WITHOUT AUTHORITY TO MAKE THE LOAN.  THE LOAN, IF MADE, WILL BE ULTRA
VIRES.  THE STATE OR A STOCKHOLDER OF THE CORPORATION, PERHAPS A
CREDITOR IN SOME CIRCUMSTANCES, MAY, UPON THAT GROUND, ENJOIN THE
LOAN.  BUT MAY IT BE ENJOINED AT THE SUIT OF JOHN DOE, A STRANGER TO
THE CORPORATION, BECAUSE THE LAWFUL USE OF THE MONEY WILL PROVE
INJURIOUS TO HIM AND THIS RESULT IS FORESEEN AND EXPECTED BOTH BY THE
LENDER AND THE BORROWER, RICHARD ROE?  CERTAINLY NOT, UNLESS WE ARE
PREPARED TO LAY DOWN THE GENERAL RULE THAT A, WHO WILL SUFFER DAMAGE
FROM THE LAWFUL ACT OF B, AND WHO PLAINLY WILL HAVE NO CASE AGAINST B,
MAY NEVERTHELESS INVOKE JUDICIAL AID TO RESTRAIN A THIRD PARTY, ACTING
WITHOUT AUTHORITY, FROM FURNISHING MEANS WHICH WILL ENABLE B TO DO WHAT
THE LAW PERMITS HIM TO DO.  SUCH A RULE WOULD BE OPPOSED TO SOUND
REASON, AS WE HAVE ALREADY TRIED TO SHOW, AND CANNOT BE ACCEPTED. 

IF THERE ARE CONDITIONS UNDER WHICH TWO DISTINCT TRANSACTIONS,
NEITHER OF WHICH, APART, CONSTITUTES A JUDICIALLY REMEDIABLE WRONG, MAY
BE SO RELATED TO ONE ANOTHER AS TO AFFORD A BASIS FOR JUDICIAL RELIEF,
SUCH CONDITIONS ARE NOT TO BE FOUND IN THE CIRCUMSTANCES OF THE PRESENT
CASE. 

WHAT WE HAVE NOW SAID FINDS AMPLE SUPPORT IN THE DECIDED CASES. 
AMONG THE DECISIONS OF THIS COURT, AND DIRECTLY IN POINT, IS RAILROAD
CO. V. ELLERMAN, 105 U.S. 166.  IN THAT CASE, THE RAILROAD COMPANY WAS
AUTHORIZED BY ITS CHARTER, AMONG OTHER THINGS, TO OBTAIN AND AFTERWARDS
MANAGE, USE AND ENJOY, WHARVES AND THE APPURTENANCES THERETO "IN
CONNECTION WITH ITS RAILROADS."  A LOUISIANA STATUTE CONFERRED UPON THE
RAILROAD THE POWER TO OBTAIN AND THEREAFTER TO OWN, MAINTAIN AND USE,
SUITABLE WHARVES, ETC., "CONNECTED WITH AND INCIDENTAL TO SAID
RAILROAD."  PURSUANT TO THIS AUTHORITY, THE RAILROAD COMPANY ACQUIRED
PROPERTY WHICH IT USED AS A WHARF AND WHICH, ALTHOUGH LIMITED BY THE
STATUTE AND ITS CHARTER TO USE FOR RAILROAD PURPOSES, IT LEASED TO
CERTAIN PERSONS FOR THE MOORING OF VESSELS AND THE LOADING AND
UNLOADING OF CARGOES UPON AND FROM ALL VESSELS OF A KIND DESIGNATED. 
ELLERMAN OPERATED CERTAIN PUBLIC WHARVES UNDER A CONTRACT WITH THE CITY
OF NEW ORLEANS GIVING HIM THE RIGHT TO COLLECT REVENUES DERIVED
THEREFROM.  HE BROUGHT SUIT TO ENJOIN THE EXECUTION OF THE LEASE OF THE
RAILROAD WHARF.  THIS COURT HELD THAT HE WAS WITHOUT LEGAL STANDING TO
MAINTAIN THE SUIT - HIS ONLY INTEREST BEING TO PREVENT COMPETITION WITH
HIMSELF AS A WHARFINGER, WHICH THE MORE EXTENSIVE AND CHALLENGED USE BY
THE LESSEES OF THE RAILROAD WHARF WOULD CREATE, AND HIS CLAIM FOR
RELIEF RESTING ONLY UPON THE ALLEGATION THAT THE USE PROPOSED BY THE
LEASE WAS BEYOND THE CORPORATE POWER OF THE RAILROAD COMPANY TO GRANT. 
"BUT IF THE COMPETITION IN ITSELF, HOWEVER INJURIOUS," WE SAID, PP. 173
174, "IS NOT A WRONG OF WHICH HE COULD COMPLAIN AGAINST A NATURAL
PERSON, BEING THE RIPARIAN PROPRIETOR, HOW DOES IT BECOME SO MERELY
BECAUSE THE AUTHOR OF IT IS A CORPORATION ACTING ULTRA VIRES?  THE
DAMAGE IS ATTRIBUTABLE TO THE COMPETITION, AND TO THAT ALONE.  BUT THE
COMPETITION IS NOT ILLEGAL.  IT IS NOT UNLAWFUL FOR ANY ONE TO COMPETE
WITH THE COMPANY, ALTHOUGH THE LATTER MAY NOT BE AUTHORIZED TO ENGAGE
IN THE SAME BUSINESS.  THE LEGAL INTEREST WHICH QUALIFIES A COMPLAINANT
OTHER THAN THE STATE ITSELF TO SUE IN SUCH A CASE IS A PECUNIARY
INTEREST IN PREVENTING THE DEFENDANT FROM DOING AN ACT WHERE THE INJURY
ALLEGED FLOWS FROM ITS QUALITY AND CHARACTER AS A BREACH OF SOME LEGAL
OR EQUITABLE DUTY.  A STOCKHOLDER OF THE COMPANY HAS SUCH AN INTEREST
IN RESTRAINING IT WITHIN THE LIMITS OF THE ENTERPRISE FOR WHICH IT WAS
FORMED, BECAUSE THAT IS TO ENFORCE HIS CONTRACT OF MEMBERSHIP.  THE
STATE HAS A LEGAL INTEREST IN PREVENTING THE USURPATION AND PERVERSION
OF ITS FRANCHISES, BECAUSE IT IS A TRUSTEE OF ITS POWERS FOR USES
STRICTLY PUBLIC.  IN THESE QUESTIONS THE APPELLEE HAS NO INTEREST, AND
HE CANNOT RAISE THEM IN ORDER, UNDER THAT COVER, TO CREATE AND PROTECT
A MONOPOLY WHICH THE LAW DOES NOT GIVE HIM.  THE ONLY INJURY OF WHICH
HE CAN BE HEARD IN A JUDICIAL TRIBUNAL TO COMPLAIN IS THE INVASION OF
SOME LEGAL OR EQUITABLE RIGHT.  IF HE ASSERTS THAT THE COMPETITION OF
THE RAILROAD COMPANY DAMAGES HIM, THE ANSWER IS, THAT IT DOES NOT
ABRIDGE OR IMPAIR ANY SUCH RIGHT.  IF HE ALLEGES THAT THE RAILROAD
COMPANY IS ACTING BEYOND THE WARRANT OF THE LAW, THE ANSWER IS, THAT A
VIOLATION OF ITS CHARTER DOES NOT OF ITSELF INJURIOUSLY AFFECT ANY OF
HIS RIGHTS.  THE COMPANY IS NOT SHOWN TO OWE HIM ANY DUTY WHICH IT HAS
NOT PERFORMED."  SUPPORTING CASES ARE CITED.  SEE, ALSO, U.S. EX REL.
NEW YORK WAREHOUSE, W. & T. ASSN. V. DERN, 68 F.(2D) 773.  COMPARE
EDWARD HINES TRUSTEES V. UNITED STATES, 263 U.S. 143, 148; ALEXANDER
SPRUNT & SON V. UNITED STATES, 281 U.S. 249, 256-257; MILWAUKEE HORSE &
COW COMM'N CO. V. HILL, 207 WIS. 420, 423, 430-432; 241 N.W. 364. 

THE CHICAGO JUNCTION CASE, 264 U.S. 258, IS NOT TO THE CONTRARY. 
THERE, SUIT WAS BROUGHT BY CERTAIN RAILROAD COMPANIES TO SET ASIDE AN
ORDER OF THE INTERSTATE COMMERCE COMMISSION AUTHORIZING A COMPETING
COMPANY TO ACQUIRE A TERMINAL ROAD.  ANSWERING THE CONTENTION THAT
COMPLAINANTS WERE WITHOUT THE LEGAL INTEREST NECESSARY TO ENTITLE THEM
TO CHALLENGE THE ORDER, THIS COURT HELD THAT THE RIGHT TO SUE AROSE IN
VIRTUE OF A SPECIAL INTEREST RECOGNIZED BY CERTAIN PROVISIONS CONTAINED
IN TRANSPORTATION ACT, 1920, AND UNDER SEC. 212 OF THE JUDICIAL CODE
WHICH GAVE ANY PARTY TO A PROCEEDING BEFORE THE COMMISSION THE RIGHT TO
BECOME A PARTY TO ANY SUIT WHEREIN THE VALIDITY OF AN ORDER MADE IN THE
PROCEEDING IS INVOLVED.  IN THIS VIEW, THE ELLERMAN CASE WAS THOUGHT TO
BE INAPPLICABLE.  A READING OF THE CASE IN CONNECTION WITH THE
DISSENTING OPINION SHOWS VERY CLEARLY THAT, BUT FOR EXPRESS STATUTORY
PROVISION CREATING A DIFFERENT RULE, THE DECISION IN THE ELLERMAN CASE
WOULD HAVE BEEN CONTROLLING. 

THE PRECISE QUESTION HERE INVOLVED WAS DECIDED, IN ACCORDANCE WITH
THE VIEW WE HAVE EXPRESSED, IN DUKE POWER CO. V. GREENWOOD COUNTY, 91
F.(2D) 665, 676; SAME CASE, 81 F.(2D) 986, 997.  COMPARE ARKANSAS
MISSOURI POWER CO. V. KENNETT, 78 F.(2D) 911.  SEE, ALSO, ALLEGAN V.
CONSUMERS' POWER CO., 71 F.(2D) 477.  THE GREENWOOD COUNTY CASE, SUPRA,
IS NOW PENDING IN THIS COURT UPON CERTIORARI, AND WILL BE DETERMINED
UPON THE AUTHORITY OF OUR PRESENT DECISION. 

FROST V. CORPORATION COMMISSION, 278 U.S. 515, RELIED UPON BY
PETITIONER, PRESENTS AN ALTOGETHER DIFFERENT SITUATION.  APPELLANT
THERE OWNED A COTTON-GINNING BUSINESS IN THE CITY OF DURANT, OKLAHOMA,
FOR THE OPERATION OF WHICH HE HAD A LICENSE FROM THE CORPORATION
COMMISSION.  THE LAW OF OKLAHOMA PROVIDED THAT NO GIN SHOULD BE
OPERATED WITHOUT A LICENSE FROM THE COMMISSION, WHICH COULD BE OBTAINED
ONLY UPON SPECIFIED CONDITIONS.  WE HELD THAT SUCH A LICENSE WAS A
FRANCHISE CONSTITUTING A PROPERTY RIGHT WITHIN THE PROTECTION OF THE
FOURTEENTH AMENDMENT; AND THAT WHILE THE ACQUISITION OF THE FRANCHISE
DID NOT PRECLUDE THE STATE FROM MAKING SIMILAR VALID GRANTS TO OTHERS,
IT WAS EXCLUSIVE AGAINST AN ATTEMPT TO OPERATE A COMPETING GIN WITHOUT
A PERMIT OR UNDER A VOID PERMIT.  THE DURANT CO-OPERATIVE GIN COMPANY
SOUGHT TO OBTAIN A PERMIT FROM THE COMMISSION WHICH, FOR REASONS STATED
IN OUR OPINION, WE HELD WOULD BE VOID AND A CLEAR INVASION OF FROST'S
PROPERTY RIGHTS.  WE CONCLUDED THAT A LEGAL RIGHT OF FROST TO BE FREE
FROM SUCH COMPETITION WOULD BE INVADED BY ONE NOT HAVING A VALID
FRANCHISE TO COMPETE, AND SUSTAINED FROST'S RIGHT TO AN INJUNCTION
AGAINST THE COMMISSION AND THE DURANT COMPANY.  SEE CORPORATION
COMMISSION V. LOWE, 281 U.S. 431, 435.  THE DIFFERENCE BETWEEN THE
FROST CASE AND THIS IS FUNDAMENTAL; FOR THE COMPETITION CONTEMPLATED
THERE WAS UNLAWFUL WHILE THAT OF THE MUNICIPALITIES CONTEMPLATED HERE
IS ENTIRELY LAWFUL. 

WE DEEM IT UNNECESSARY TO REVIEW THE MANY OTHER CASES CITED BY
PETITIONER WHERE SUITS AGAINST OFFICIALS HAVE BEEN SUSTAINED.  AN
EXAMINATION OF THEM WILL DISCLOSE THE PRESENCE OF FRAUD, COERCION,
MALICE, CONSPIRACY, OR SOME OTHER ELEMENT OR CONDITION OF CONTROLLING
FORCE - NONE OF WHICH, AS SHOWN BY THE FINDINGS WHICH WE HAVE ACCEPTED
AS UNASSAILABLE, EXISTS IN THE PRESENT CASE.  DECREES AFFIRMED. 

FN1  C. 90, 48 STAT. 195, 200. 

FN2  C. 48, 49 STAT. 115, 119. 

FN3  SEE OPPENHEIM V. CITY OF FLORENCE, 229 ALA. 50; 155 SO. 859. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :

















DUKE POWER CO. V. GREENWOOD CO., 302 U.S. 485 


NO. 397.  ARGUED DECEMBER 7, 8, 1937.  - DECIDED JANUARY 3, 1938.  - 91
F.(2D) 665, AFFIRMED. 


DECIDED UPON THE AUTHORITY OF ALABAMA POWER CO. V. ICKES, ANTE, P.
464. 

DUKE POWER CO. ET AL. V. GREENWOOD COUNTY ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, POST, P. 675, TO REVIEW A DECREE AFFIRMING THE DISMISSAL,
19 F.SUPP.  932, OF A BILL TO ENJOIN PERFORMANCE OF A CONTRACT LIKE
THOSE INVOLVED IN THE TWO CASES LAST PRECEDING.  FOR AN EARLIER PHASE
OF THIS LITIGATION, SEE 299 U.S. 259. 

THE EVIDENCE SHOWS THAT THE PROJECT WAS INCLUDED IN THE COMPREHENSIVE
PROGRAM OF PUBLIC WORKS AND THAT FEDERAL FUNDS WERE ALLOTTED FOR ITS
CONSTRUCTION PURSUANT TO THE PWA POWER PLAN TO REDUCE POWER RATES. 

TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT, RIGHTLY CONSTRUED,
DOES NOT AUTHORIZE THE ACTION OF THE PUBLIC WORKS ADMINISTRATOR IN THIS
CASE.  IF CONSTRUED OTHERWISE IT IS UNCONSTITUTIONAL IN THAT (A) IT
INVADES THE RESERVED POWERS OF THE STATES; (B) IT IS NOT WITHIN ANY
POWER DELEGATED TO CONGRESS BY THE GENERAL WELFARE CLAUSE OR BY ANY
OTHER PROVISION OF THE CONSTITUTION; (C) IT IS AN UNAUTHORIZED
DELEGATION OF THE POWER OF THE CONGRESS TO SPEND FOR THE GENERAL
WELFARE, AND (D) AS APPLIED IN THIS CASE, IT DEPRIVES THE PETITIONER OF
ITS PROPERTY WITHOUT DUE PROCESS OF LAW. 

THE ACTION OF THE ADMINISTRATOR WILL BE THE PROXIMATE CAUSE OF THE
INJURY WHICH PETITIONER WILL SUSTAIN. 

THIS WAS FOUND AS A FACT BY THE DISTRICT COURT BOTH ON THE ORIGINAL
HEARING AND ON THE RETRIAL. 

THE INJURY TO PETITIONER WILL BE THE INEVITABLE RESULT OF THE ACT OF
THE ADMINISTRATOR IN AUTHORIZING THE PROJECT,  - A RESULT NECESSARILY
CONTEMPLATED AT THE TIME OF THE AUTHORIZATION.  RATES WERE FIXED BELOW
THOSE OF PETITIONER IN ORDER TO ATTRACT PETITIONER'S CUSTOMERS, AND
CONTRACTS SUBJECT TO THE ADMINISTRATOR'S APPROVAL WERE MADE WITH
PETITIONER'S CUSTOMERS.  THE VERY CONDITIONS UNDER WHICH THE LOAN IS
BEING MADE CONTEMPLATE THE TAKING OF PETITIONERS BUSINESS, AND THE
REPAYMENT OF THE LOAN EVEN IN PART NECESSITATES THE CONTINUATION OF
RATES WHICH WILL ATTRACT PETITIONER'S BUSINESS. 

A DEFENDANT IS RESPONSIBLE FOR THE CONSEQUENCES OF HIS WRONGFUL ACT
WHICH MIGHT REASONABLY HAVE BEEN FORESEEN.  MILWAUKEE & ST. PAUL R. CO.
V. KELLOGG, 94 U.S. 469. 

THE EFFECT UPON PETITIONER'S RATES AND BUSINESS WAS NOT ONLY
REASONABLY FORESEEABLE BUT WAS IN FACT FORESEEN.  THE ADMINISTRATOR
KNEW THAT HIS ACT IN AUTHORIZING THE PROJECT AND IN ALLOTTING THE FUNDS
FOR ITS CONSTRUCTION, WAS CALCULATED TO DAMAGE PETITIONER AND WOULD DO
SO. 

PETITIONER IS NOT COMPLAINING OF COMPETITION BY THE COUNTY AND A
DECREE IN FAVOR OF PETITIONER WOULD LEAVE THE COUNTY FREE TO COMPETE
WITH PETITIONER IN ANY LAWFUL WAY.  BUT, SHOULD THE PLANT BE
CONSTRUCTED, ITS OPERATION BY THE COUNTY IN COMPETITION WITH PETITIONER
WOULD ARISE OUT OF AND BE AN IMMEDIATE CONSEQUENCE OF THIS ACTION OF
THE ADMINISTRATOR. 

THE RULE THAT THE CONSTRUCTION OF A COMPETING MUNICIPAL PLANT MAY BE
ENJOINED, IF THE CONSTRUCTION WOULD BE ILLEGALLY FINANCED, AS, FOR
INSTANCE, BY THE ISSUANCE OF BONDS IN VIOLATION OF A CONSTITUTIONAL OR
STATUTORY DEBT LIMITATION, IS WELL ESTABLISHED.  AND IT IS NO DEFENSE
TO A SUIT BY A UTILITY WHICH WOULD BE INJURED BY SUCH COMPETITION THAT
THE UTILITY HAS NO EXCLUSIVE FRANCHISE, AND THAT THE MUNICIPALITY HAS
THE LAWFUL RIGHT TO COMPETE WITH IT.  IF THE RESPONDENTS' POSITION WERE
SOUND, SUCH A SUIT WOULD FAIL ON THE GROUND THAT, THE MUNICIPALITY
HAVING THE LAWFUL RIGHT TO COMPETE, NO RIGHT OF THE PLAINTIFF WOULD BE
INFRINGED AND THE RESULTING DAMAGE WOULD BE ABSQUE INJURIA.  CONTRARY
TO THE CONTENTION OF THE RESPONDENTS, HOWEVER, THE RIGHT OF THE UTILITY
TO MAINTAIN SUCH A SUIT IS UNIFORMLY RECOGNIZED.  (CITING:  CAMPBELL V.
ARKANSAS-MISSOURI POWER CO., 55 F.(2D) 560; OKLAHOMA UTILITIES CO. V.
HOMINY, 2 F.SUPP.  849; IOWA SOUTHERN UTILITIES CO. V. CASSILL, 69
F.(2D) 703; GALLARDO V. PORTO RICO RY. L. & P. CO., 18 F.(2D) 918;
COLORADO CENTRAL POWER CO. V. MUNICIPAL POWER DEVELOPMENT CO., 1
F.SUPP.  961; MISSISSIPPI POWER CO. V. STARKVILLE, 4 F.SUPP.  833;
FROST V. CORPORATION COMMISSION, 278 U.S. 515; CITIZENS ELECTRIC
ILLUMINATING CO. V. LACKAWANNA & W.V. POWER CO., 255 PA. 145; 18 HARV.
L. REV. 412; 8 HARV. LAW REV. 11; HITCHMAN COAL & COKE CO. V. MITCHELL,
245 U.S. 229; TRUAX V. RAICH, 239 U.S. 33; HAMMER V. DAGENHART, 247
U.S. 251; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510.  OTHER CITATIONS
TO SUPPORT THE PETITIONER'S RIGHT TO RAISE THE MAIN QUESTIONS ARE HERE
OMITTED BECAUSE INCLUDED IN THE SUMMARY OF THE LIKE ARGUMENT IN THE
CASE LAST PRECEDING.) 

THE PETITIONER'S BUSINESS IS A PRIVATE PROPERTY INTEREST WHICH THE
LAW WILL PROTECT AGAINST INVASION THROUGH THE UNLAWFUL ACTS OF A PUBLIC
OFFICIAL.  PIERCE V. SOCIETY OF SISTERS, SUPRA; PHILADELPHIA CO. V.
STIMSON, 223 U.S. 605. 

A PUBLIC OFFICIAL MAY BE ENJOINED FROM ILLEGAL ACTS INVOLVING THE
UNAUTHORIZED EXPENDITURE OF PUBLIC FUNDS AT THE SUIT OF AN INDIVIDUAL
WHO WILL BE SPECIALLY GRIEVED THEREBY.  FROTHINGHAM V. MELLON, 262 U.S.
447, 486; WARNER-QUINLAN ASPHALT CO. V. CARLISLE, 158 APP. DIV. (N.Y.) 
638. 

IN RESTRAINING ILLEGAL ACTION BY A PUBLIC OFFICIAL AT THE SUIT OF A
PARTY SPECIALLY GRIEVED BY SUCH ACTION, A COURT OF EQUITY IS EXERCISING
A WELL ESTABLISHED EQUITABLE JURISDICTION. 

ON THE SAME PRINCIPLE EQUITY WILL ENJOIN A COMMON OR PUBLIC NUISANCE
AT THE SUIT OF A PRIVATE PERSON WHO WILL SUFFER A SPECIAL GRIEVANCE
THEREFROM.  MAYOR V. ALEXANDRIA CANAL CO., 12 PET. 91, 98-100; CORNING
V. LOWERRE, 6 JOHNS.  CHAN.  439; TRUAX V. RAICH, SUPRA.  P. 37. 

THE OBJECTION TO SUITS BY TAXPAYERS GENERALLY TO RESTRAIN THE
ENFORCEMENT OF APPROPRIATION STATUTES ON THE SCORE THAT TO PERMIT SUCH
SUITS WOULD LEAD TO A MULTIPLICITY OF ACTIONS, WITH THE ATTENDANT
INCONVENIENCES RESULTING THEREFROM, HAS NO APPLICATION TO A SUIT BY A
PARTY SPECIALLY AGGRIEVED.  THE INTEREST THAT WILL JUSTIFY SUCH A SUIT
IS OF A SORT THAT WILL GIVE RISE TO NO SUCH DANGER OR INCONVENIENCE. 
THIS IS ILLUSTRATED BY THE FACT THAT THE VALIDITY OF EVEN A CRIMINAL
STATUTE MAY BE CHALLENGED BY A PARTY WHO WILL SUSTAIN A DIRECT INJURY
TO HIS PROPERTY RIGHTS BY THE ENFORCEMENT OF THE STATUTE. 

THE DISTRICT COURT SHOULD HAVE LIMITED THE RETRIAL OF THE CAUSE TO
THE QUESTION OF WHETHER OR NOT THERE HAD BEEN ANY MATERIAL CHANGE IN
THE SITUATION SINCE THE ENTRY OF THE ORIGINAL DECREE OF INJUNCTION. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE SAME QUESTION AS THAT JUST DECIDED IN NOS. 84
AND 85, ANTE, P. 464.  THE RESPONDENTS ARE ESSENTIALLY THE SAME, WITH
THE ADDITION OF GREENWOOD COUNTY, IN THE STATE OF SOUTH CAROLINA, AND
THE MEMBERS OF THE FINANCE BOARD OF THE COUNTY.  THE SUIT WAS BROUGHT
TO ENJOIN THE CONSTRUCTION AND OPERATION OF A LOCAL ELECTRIC POWER
PLANT IN THE COUNTY, AND THE MAKING OF A LOAN AND GRANT BY THE FEDERAL
ADMINISTRATOR TO THE COUNTY, FOR THAT PURPOSE, UNDER THE PROVISIONS OF
TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT, SET FORTH, SO FAR AS
MATERIAL, IN NOS. 84-85, SUPRA. 

THE CASE WAS HERE ON A PREVIOUS WRIT, UPON CONSIDERATION OF WHICH
THIS COURT, BECAUSE OF SUBSTANTIAL IRREGULARITIES IN PRACTICE, REVERSED
THE JUDGMENT OF THE COURT BELOW WITH DIRECTIONS TO VACATE THE DECREES
ENTERED BY THE DISTRICT COURT, AND REMAND THE CAUSE TO THAT COURT WITH
DIRECTIONS TO PERMIT THE PARTIES TO AMEND THEIR PLEADINGS IN THE LIGHT
OF EXISTING FACTS, AND RETRY THE CAUSE UPON THE ISSUES THEN PRESENTED. 
WE EXPRESSED NO OPINION UPON THE MERITS OR THE RELEVANCY OR EFFECT OF
THE EVIDENCE.  299 U.S. 259.  ACCORDINGLY, THE CASE WAS REMANDED TO THE
DISTRICT COURT, AND REHEARD.  THE DISTRICT COURT, AFTER MAKING FINDINGS
OF FACT AND CONCLUSIONS OF LAW, DISMISSED THE BILL.  THE COURT BELOW,
UPON APPEAL, CONSIDERED THE CASE FULLY, AND DELIVERED AN EXHAUSTIVE
OPINION.  IT HELD (1) THAT THE STATUTE, UNDER WHICH THE ADMINISTRATOR
PROPOSED TO ACT, WAS CONSTITUTIONAL; (2) THAT HE ACTED WITHIN THE POWER
GRANTED HIM BY THE STATUTE; AND (3) THAT IN ANY EVENT NO LEGAL RIGHT OF
PLAINTIFFS WAS VIOLATED BY WHAT HAD BEEN DONE.  91 F.(2D) 665; SEE ALSO
PRECEDING DECISION, 81 F.(2D) 986. 

UPON THE QUESTION OF PETITIONERS' STANDING TO MAINTAIN THE SUIT, THE
LOWER COURT HELD, IN SUBSTANCE, THAT THE COMPETITION PROPOSED BY THE
COUNTY WAS LAWFUL AND THAT EVEN THOUGH THE ADMINISTRATOR WERE WITHOUT
AUTHORITY TO MAKE THE PROPOSED LOAN AND GRANT, NO LEGAL RIGHT OF
PETITIONERS WAS THEREBY INVADED.  THE OPINION UPON THIS BRANCH OF THE
CASE IS IN HARMONY WITH THE VIEWS WE HAVE JUST EXPRESSED IN NOS. 84 AND
85; AND IT FOLLOWS THAT THE DECREE MUST BE, AND IT IS, AFFIRMED. 

MR. JUSTICE BLACK CONCURS IN THE RESULT. 
..END :





















TEXTILE MACHINE WORKS V. HIRSCH CO., 302 U.S. 490 


NO. 62.  ARGUED NOVEMBER 19, 1937.  - DECIDED JANUARY 3, 1938.  - 87
F.(2D) 702, AFFIRMED. 


1.  CLAIMS 1, 3, 14 AND 15 OF PATENT NO. 1,713,628, TO SCHLETTER, MAY
21, 1929, FOR AN ATTACHMENT FOR "FLAT" OR "STRAIGHT" KNITTING MACHINES,
INCLUDING MACHINES OF THE "FULL-FASHIONED" TYPE, HELD INVALID FOR WANT
OF NOVELTY.  PP. 494, 497. 

CLAIM 14, TAKEN AS TYPICAL, DEFINES THE INVENTION AS THE COMBINATION
IN A STRAIGHT KNITTING MACHINE OF (A) A SET OF YARN GUIDE CARRIER BARS
FOR OPERATING YARN GUIDES TRAVELING LESS THAN THE FULL WIDTH OF THE
FABRIC BEING KNITTED, (B) A SPINDLE HAVING REVERSED SCREW THREADS, (C)
STOPS OPERATED BY SAID SPINDLE, (D) MEANS FOR TURNING THE SPINDLE IN
EITHER DIRECTION, (E) PATTERN-CONTROLLED MEANS FOR DETERMINING THE TIME
OF OPERATION OF THE SPINDLE, AND (F) PATTERN-CONTROLLED MEANS FOR
DETERMINING THE DIRECTION OF ROTATION OF THE SPINDLE. 

2.  THE ADDITION OF A NEW AND USEFUL ELEMENT TO AN OLD COMBINATION
MAY BE PATENTABLE; BUT THE ADDITION MUST BE THE RESULT OF INVENTION
RATHER THAN THE MERE EXERCISE OF THE SKILL OF THE CALLING, AND NOT ONE
PLAINLY INDICATED BY THE PRIOR ART. P. 497. 

3.  COMMERCIAL SUCCESS MAY BE DECISIVE WHERE INVENTION IS IN DOUBT. 
P. 498. 

BUT IN THIS CASE IT DOES NOT APPEAR WHETHER THE COMMERCIAL SUCCESS IS
ATTRIBUTABLE TO NOVELTY OF THE BARE CONCEPTION OF THE USE OF THE
ATTACHMENT WITH FULL-FASHIONED KNITTING MACHINES RATHER THAN TO THE
SKILL WITH WHICH THE PATENTEE DEVISED MECHANISMS FOR MAKING THE
ATTACHMENT EFFECTIVE, BUT FOR WHICH HE MADE NO CLAIM, OR TO THE
STRENGTH OF THE HANDS INTO WHICH THE PATENT CAME.  P. 499. 

TEXTILE MACHINE WORKS V. LOUIS HIRSCH TEXTILE MACHINES, INC. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 301 U.S. 680, TO REVIEW THE REVERSAL OF A DECREE, 13
F.SUPP.  476, SUSTAINING FOUR CLAIMS OF THE PETITIONER'S PATENT,
ENJOINING FURTHER INFRINGEMENT, AND ORDERING AN ACCOUNTING. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS CASE COMES HERE ON CERTIORARI TO REVIEW A DECREE, IN A PATENT
INFRINGEMENT SUIT, OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
WHICH REVERSED THE DISTRICT COURT AND HELD INVALID CLAIMS 1, 3, 14 AND
15 OF THE SCHLETTER PATENT NO. 1,713,628 OF 1929, FOR AN ATTACHMENT FOR
FLAT KNITTING MACHINES.  87 F.(2D) 702.  THE COURT OF APPEALS FOR THE
THIRD CIRCUIT HAD PREVIOUSLY HELD THESE CLAIMS VALID AND INFRINGED IN
ALFRED HOFMANN, INC. V. TEXTILE MACHINE WORKS, 71 F.(2D) 973.  THE
PATENT IS FOR AN ATTACHMENT FOR "FLAT" OR "STRAIGHT" KNITTING MACHINES,
INCLUDING MACHINES OF THE "FULL-FASHIONED" TYPE.  BY USE OF THE
ATTACHMENT, AS THE SPECIFICATIONS STATE, "YARN-GUIDES CAN BE ACCURATELY
CONTROLLED TO LAY A YARN OVER A DISTANCE LESS THAN THE FULL LENGTH OF A
COURSE BEING KNITTED, AS FOR REINFORCING OR FOR SO-CALLED SPLIT-SEAM
WORK WHEREIN SECTIONS OF FABRIC ARE CONNECTED BY SUTURE SEAMS."  THE
ATTACHMENT, IT IS STATED, MAY BE USED FOR "FASHIONING DESIGNS, AS
CLOCKS, UPON HOSIERY." 

FLAT KNITTING MACHINES ARE ADAPTABLE TO USE IN THE MANUFACTURE OF
FULL FASHIONED GARMENTS SUCH AS STOCKINGS, UNDERWEAR OR SWEATERS.  A
CHARACTERISTIC FEATURE OF THE MANUFACTURE IS THAT THE GARMENT OR A
PORTION OF IT, IS KNITTED IN A FLAT WEB WHICH, IN THE COURSE OF
KNITTING, IS SHAPED BY VARIATION OF ITS WIDTH, IN SUCH A WAY THAT IT
CONFORMS TO THE CONTOUR OF THE BODY TO BE FITTED, WHEN ITS SHAPED EDGES
ARE UNITED IN A SEAM.  THE DESIRED VARIATIONS IN WIDTH ARE SECURED
THROUGH CONTROL OF THE TRAVERSE OR "THROW" OF THE YARN GUIDE WHICH
BRINGS THE YARN TO THE NEEDLES OF THE MACHINE AS THEY KNIT THE WEB. 
THEY MAY BE AND USUALLY ARE SET UP AS MULTIPLE UNITS IN A SINGLE
MACHINE CAPABLE OF KNITTING SIMULTANEOUSLY A NUMBER OF GARMENTS OF THE
SAME TYPE. 

THE OBJECT OF THE PATENTED ATTACHMENT IN PROVIDING ACCURATE CONTROLS
FOR YARN GUIDES LAYING A YARN OVER A DISTANCE LESS THAN THE FULL WIDTH
OF A FABRIC BEING KNITTED, IS EITHER TO KNIT AN ADDITIONAL YARN OVER A
PARTICULAR AREA OF THE MAIN BODY OF THE FABRIC SO AS TO STRENGTHEN IT
OR FORM UPON IT AN ORNAMENTAL DESIGN, OR TO INSERT IN IT "SPLIT-SEAM
WORK," WHICH IS A PORTION OF THE MAIN FABRIC KNITTED WITH A SEPARATE
YARN AND FORMING A DISTINCTIVE DESIGN.  THE ATTACHMENT MAKES IT
POSSIBLE TO LENGTHEN AND SHORTEN THE THROW OF THE YARN GUIDE, AND THUS
TO FORM DESIGNS WITH REENTRANT ANGLES IN BOTH REINFORCEMENT AND SPLIT
SEAM WORK. 

THE PATENTED DEVICE EMBRACES A ROTATABLE SPINDLE HAVING THREADS CUT
UPON IT, IN REVERSE, ON OPPOSITE SIDES OF ITS CENTRAL PORTION, WITH A
NUT MOUNTED UPON EACH OF ITS TWO THREADED PARTS AND MOVED BY ITS
REVOLUTIONS SO THAT WHEN THE SPINDLE IS TURNED IN THE ONE DIRECTION OR
THE OTHER THE NUTS ARE MOVED BY THE REVERSELY THREADED SCREWS TOWARD OR
AWAY FROM EACH OTHER.  CARRIED ON THE NUTS SO AS TO MOVE WITH THEM ARE
YARN CARRIER STOPS WHICH ARE SO ADAPTED AND LOCATED AS TO SERVE AS
CONTROLS TO LIMIT THE TRAVEL OF CARRIER RODS WHICH HAVE MOUNTED ON THEM
THE YARN GUIDES.  THE FUNCTION OF THE MECHANISM IS TO CONTROL THE
MOVEMENT OF THE STOPS WHICH IN TURN CONTROL THE DISTANCE OF TRAVEL OF
THE YARN GUIDES.  THIS IS ACCOMPLISHED BY THE MOVEMENT OF THE STOP NUTS
TOWARD OR AWAY FROM EACH OTHER BY THE ROTATION OF THE THREADED SPINDLE
IN THE APPROPRIATE DIRECTION. 

MOVEMENT IN CONFORMITY TO A DESIRED PATTERN IS EFFECTED BY THE
TRANSMISSION OF POWER FROM THE MAIN CAMSHAFT OF THE KNITTING MACHINE TO
TWO RATCHET WHEELS MOUNTED ON THE END OF THE THREADED SPINDLE, EACH
WITH AN ACTUATING PAWL.  THE TWO PAWLS ARE IN SUCH RELATIONSHIP THAT
WHEN ONE OPERATES ITS COMPLEMENTARY RATCHET WHEEL THE SPINDLE WILL
ROTATE IN ONE DIRECTION, AND WHEN THE OTHER OPERATES ITS COMPLEMENTARY
RATCHET WHEEL THE SPINDLE WILL TURN IN THE OPPOSITE DIRECTION.  THE
OPERATION OF THE RATCHET WHEELS IS CONTROLLED BY MEANS OF BUTTONS,
ARRANGED ON TWO ENDLESS BELTS PROPELLED BY THE MAIN CAMSHAFT.  THE
BUTTONS ATTACHED TO ONE OF THE BELTS SERVE TO ACTUATE A MECHANISM WHICH
PUSHES BOTH PAWLS.  THE BUTTONS AFFIXED TO THE OTHER BELT GOVERN A
MECHANISM THAT SELECTIVELY ENGAGES ONE OR THE OTHER OF THE TWO PAWLS,
AND THUS DETERMINES THE DIRECTION IN WHICH THE SPINDLE AND HENCE THE
STOPS ARE TO MOVE.  BY SUITABLE SPACING OF THE BUTTONS ON THE BELTS,
THE MOTION, WHICH IS TO BE IMPARTED TO THE STOPS THROUGH THE
INTERMEDIATE APPARATUS, IS CONTROLLED IN SUCH FASHION AS TO FIX IN
ADVANCE THE LENGTH OF THROW AND HENCE THE OUTLINE OF THE DESIGN WHICH
IS TO BE INCORPORATED IN THE MAIN FABRIC BY REINFORCEMENT OR SPLIT-SEAM
WORK. 

CLAIM 14, WHICH MAY BE TAKEN AS TYPICAL, DEFINES THE INVENTION AS THE
COMBINATION "IN A STRAIGHT KNITTING MACHINE (A) A SET OF YARN GUIDE
CARRIER BARS FOR OPERATING YARN GUIDES TRAVELING LESS THAN THE FULL
WIDTH OF THE FABRIC BEING KNITTED, (B) A SPINDLE HAVING REVERSED SCREW
THREADS, (C) STOPS OPERATED BY SAID SPINDLE, (D) MEANS FOR TURNING THE
SPINDLE IN EITHER DIRECTION, (E) PATTERN-CONTROLLED MEANS FOR
DETERMINING THE TIME OF OPERATION OF THE SPINDLE, AND (F) PATTERN
CONTROLLED MEANS FOR DETERMINING THE DIRECTION OF ROTATION OF THE
SPINDLE." 

AS EARLY AS 1912, TEN YEARS BEFORE SCHLETTER'S ORIGINAL APPLICATION
OF JUNE, 1922, FROM WHICH HIS PATENT DATES, THE ART HAD DEVISED AN
ATTACHMENT FOR FULL-FASHIONED KNITTING MACHINES, COMMERCIALLY USED FOR
REINFORCING THE HEEL PORTION OF THE STOCKING.  ONE FORM, KNOWN AS THE
GOTHAM, COMPRISED A REVERSELY THREADED SPINDLE, ON THE THREADS OF WHICH
WERE MOUNTED STOPS MOVING TOWARD EACH OTHER WHEN THE SPINDLE ROTATED IN
ONE DIRECTION, AND AWAY FROM EACH OTHER WHEN THE SPINDLE TURNED IN THE
OPPOSITE DIRECTION.  THE TRAVELING STOPS CONTROLLED THE THROW OF
CARRIER BARS WITH YARN GUIDES WHICH LAID A REINFORCING YARN AT THE HEEL
OF THE STOCKING.  AS THE REINFORCEMENT WAS TRIANGULAR WITH THE POINT
ABOVE THE HEEL GRADUALLY WIDENING BELOW WITHOUT REENTRANT ANGLES, IT
WAS NEEDFUL TO ROTATE THE SPINDLE AUTOMATICALLY IN BUT ONE DIRECTION IN
ORDER TO COMPLETE THE PATTERN.  WHEN THE REINFORCEMENT HAD BEEN KNITTED
THE SPINDLE WAS ROTATED BY HAND IN THE REVERSE DIRECTION, OR "RACKED
OUT," UNTIL THE STOPS WERE RESTORED TO THEIR INITIAL POSITION, READY TO
KNIT THE NEXT STOCKING.  A MEANS FOR AUTOMATICALLY ROTATING THE SPINDLE
IN THE DESIRED SINGLE DIRECTION WAS PROVIDED BY A RATCHET WHEEL MOUNTED
ON THE SPINDLE, WHICH WAS WORKED BY A PAWL PUSHED BY A CAM ON THE MAIN
SHAFT; THE OPERATION OF THE PAWL WAS CONTROLLED BY A MECHANISM ACTUATED
BY A "BUTTON" TYPE OF PATTERN BELT OR CHAIN.  THE REINFORCEMENT COULD
NOT BE KNITTED FROM A SINGLE YARN CARRIER OPERATING OVER A SINGLE AREA
OF THE FABRIC, BECAUSE THE REINFORCED AREA WAS DIVIDED, IN THE
COMPLETED STOCKING, BY THE SEAM WHICH UNITED THE SELVAGES OF THE
STOCKING WEB.  IT WAS THUS NECESSARY TO KNIT THE REINFORCEMENT IN TWO
AREAS, USING TWO YARN CARRIERS, EACH WITH A THROW OF THE DESIRED
VARIATION IN LENGTH, REACHING FROM THE SELVAGE ON EITHER SIDE OF THE
STOCKING WEB INWARD UPON THE MAIN FABRIC.  FOR THIS PURPOSE THE LUGS ON
THE CARRIER RODS WHICH, IN COOPERATION WITH THE STOPS, CONTROLLED THE
THROW, WERE LOCATED BETWEEN THE END STOPS OF THE FULL-FASHIONED MACHINE
AND THE STOPS MOVED BY THE THREADED NUTS ON THE ATTACHMENT. 

IT WILL BE OBSERVED THAT THIS DEVICE, WHILE NOT COMPLETELY
ANTICIPATING THAT OF THE PATENT, NEVERTHELESS EXHIBITED EVERY ELEMENT
OF THE CLAIM EXCEPT THE "PATTERN-CONTROLLED MEANS FOR DETERMINING THE
DIRECTION OF ROTATION OF THE SPINDLE."  THIS LACK WAS SUPPLIED BY
NUSBAUM, WHOSE MACHINE WAS IN COMMON USE AS EARLY AS 1917.  AS ALREADY
INDICATED, THE USE OF SUCH A DEVICE IN FULLFASHIONED KNITTING MACHINES
TO SECURE SELVAGE VARIATIONS WAS KNOWN LONG BEFORE THE SCHLETTER
APPLICATION.  IN ORDER TO EFFECT THIS TYPE OF FASHIONING, THE YARN
CARRIER STOPS WERE MOVED AND THEIR MOVEMENTS CONTROLLED BY STOP NUTS
MOUNTED ON SPINDLES WITH THREADS IN REVERSE LOCATED AT EITHER END OF
THE KNITTING MACHINE.  TWO-WAY MOVEMENT OF THE NUTS WAS EFFECTED BY
MECHANISMS, UNDER PATTERN BELT CONTROL, SUITABLE TO ROTATE THE SPINDLE
IN EITHER DIRECTION. 

THE NUSBAUM MACHINE WAS A MODIFICATION OF THE EXISTING FLAT KNITTING
MACHINE AND WAS DESIGNED FOR KNITTING REINFORCEMENTS OF VARIABLE WIDTH
ON SWEATERS WHICH WERE THEMSELVES NOT FULL FASHIONED, THAT IS, NOT
NARROWED IN THE KNITTING.  THE MODIFICATION WAS DEVISED FOR VARYING THE
THROW OF A SECONDARY YARN CARRIER SUPPLYING YARN TO NEEDLES KNITTING
UPON THE MAIN FABRIC A REINFORCEMENT OR PLAITING.  TO ACCOMPLISH THIS,
NUSBAUM REBUILT AN OLD FULL-FASHIONED MACHINE BY USING THE EXISTING END
NUTS AS A MEANS OF CONTROLLING THE MOVEMENTS OF THE STOPS WHICH
DETERMINE THE LENGTH OF THROW OF A SECONDARY YARN CARRIER, AND
SUPPLYING A NEW CARRIER BAR FOR THE PRIMARY YARN.  SINCE THE GARMENT
WAS NOT FULL-FASHIONED HE PLACED FIXED STOPS AT THE ENDS OF THE MACHINE
SO THAT THE THROW OF THE PRIMARY THREAD CARRIER WAS CONSTANT.  HE USED
THE OLD AUTOMATICALLY REVERSIBLE SPINDLE OF THE FULL-FASHIONED MACHINE
AS A MEANS, WANTING IN THE GOTHAM MECHANISM, FOR INCREASING OR
DIMINISHING AT WILL THE THROW OF THE SECONDARY YARN CARRIER.  INSTEAD
OF THE SINGLE REVERSIBLY THREADED SPINDLE OF THE GOTHAM MACHINE,
NUSBAUM RETAINED THE TWO THREADED SHAFTS LOCATED AT THE ENDS OF THE
PRINCIPAL MACHINE, EACH BEARING TWIN RATCHET WHEELS, EACH OF WHICH WAS
OPERATED BY A PAWL CONTROLLED THROUGH AN INTERMEDIATE APPARATUS BY
BUTTONS APPROPRIATELY SPACED ON A PATTERN BELT.  ONLY A SINGLE BELT WAS
USED BEARING FOUR ROWS OF BUTTONS, WHICH BY REVERSING THE MOTION OF THE
SPINDLE AS DESIRED OPERATED TO VARY THE THROW OF THE YARN CARRIER IN
CONFORMITY TO THE DESIRED PATTERN. 

IT IS TRUE, AS PETITIONER URGES, THAT THE THREADED SPINDLES WERE
LOCATED AT THE ENDS OF THE NUSBAUM MACHINE, AND THAT THEY WERE SEPARATE
SHAFTS ALTHOUGH CAPABLE OF BEING OPERATED IN UNISON AS IF UNITED IN A
SINGLE SPINDLE SUCH AS THAT SHOWN BY THE GOTHAM ATTACHMENT.  EVEN WITH
THE DOUBLE SPINDLE SYNCHRONOUSLY OPERATED INSTEAD OF THE SINGLE SPINDLE
OF THE GOTHAM IT WAS SUBSTANTIALLY THE DEVICE CLAIMED BY SCHLETTER.  IN
CONVERTING A FULL-FASHIONED KNITTING MACHINE INTO A DIFFERENT TYPE OF
STRAIGHT KNITTING MACHINE WHICH DID NOT FASHION THE MAIN FABRIC,
NUSBAUM EMBODIED IN IT A DEVICE FOR ACCURATELY CONTROLLING YARN GUIDES
FOR LAYING A SECONDARY YARN LESS THAN THE LENGTH OF THE COURSE BEING
KNITTED, WHICH WAS CAPABLE OF PRODUCING DESIGNS HAVING REENTRANT
ANGLES.  THIS, ACCORDING TO THE SPECIFICATIONS, IS ONE OF THE OBJECTS
TO BE ACHIEVED BY THE PATENTED DEVICE.  THE OTHER IS THE MAKING OF
MULTIPLE DESIGNS AND SPLIT-SEAM WORK. 

AS THE PATTERN OF THE REINFORCEMENT OR PLAIT WAS TO BE WHOLLY WITHIN
A SINGLE AREA ON THE MAIN FABRIC AND DID NOT EXTEND TO THE SELVAGE,
NUSBAUM USED A SINGLE YARN GUIDE INSTEAD OF THE TWO WHICH WERE REQUIRED
IN THE GOTHAM ATTACHMENT BECAUSE THE REINFORCEMENTS WERE UPON DETACHED
AREAS OF THE FABRIC.  HENCE HIS MACHINE AS SET UP COULD NOT DO SPLIT
SEAM WORK OR MAKE DOUBLE DESIGNS, WHICH COULD ONLY BE KNITTED BY
EMPLOYING A PLURALITY OF YARN GUIDES WITH CORRESPONDING CONTROLS.  BUT
THE USE OF THE DEVICE FOR THESE DIFFERENT METHODS OF KNITTING THE
SECONDARY YARN INVOLVES BUT AN OBVIOUS ADAPTATION OF THE CLAIMED
COMBINATION TO THE PARTICULAR WORK TO BE DONE.  THAT MAY BE
ACCOMPLISHED BY USING THE DEVICE EXHIBITED BY NUSBAUM AS WELL AS THAT
CLAIMED BY THE PATENT, WITH THE REQUISITE NUMBER OF CONTROLLED YARN
GUIDES IN THE CASE OF MULTIPLE DESIGNS AND WITH STOPS, BOTH SIDES OF
WHICH ARE USED AS CARRIER ROD CONTROLS IN THE CASE OF SPLIT-SEAM WORK. 
THIS ADDITION OF YARN GUIDES AND THE VARIED USE OF THE STOPS, EVEN IF
INVENTION, ARE NOT EMBRACED IN THE CLAIMS BEFORE US. 

THE ADDITION OF THE REVERSING MECHANISM, USED BY NUSBAUM AND
PREVIOUSLY USED IN THE FULL-FASHIONED MACHINE, TO THE ELEMENTS
EXHIBITED BY THE GOTHAM, FOR THE PURPOSE OF EFFECTING VARIATIONS IN THE
THROW OF THE SECONDARY YARN CARRIER IN PRECISELY THE MANNER IN WHICH
THE THROW OF THE PRIMARY YARN CARRIER HAD BEEN CONTROLLED IN FULL
FASHIONED MACHINES, WAS PLAINLY NOT INVENTION.  THE ADDITION OF A NEW
AND USEFUL ELEMENT TO AN OLD COMBINATION MAY BE PATENTABLE; BUT THE
ADDITION MUST BE THE RESULT OF INVENTION RATHER THAN THE MERE EXERCISE
OF THE SKILL OF THE CALLING, AND NOT ONE PLAINLY INDICATED BY THE PRIOR
ART. ELECTRIC CABLE JOINT CO. V. BROOKLYN EDISON CO., 292 U.S. 69, 79,
80; ALTOONA PUBLIX THEATRES V. AMERICAN TRI-ERGON CORP., 294 U.S. 477,
486.  THE ART OF MACHINE DESIGN IN THE KNITTING MACHINE FIELD IS A
HIGHLY DEVELOPED ONE.  THE ADDITION TO THE COMBINATION OF THE GOTHAM
ATTACHMENT OF A MEANS FOR AUTOMATICALLY REVERSING THE ROTARY THREADED
SPINDLE TO PERFORM THE VERY FUNCTION IT HAD PERFORMED IN THE FULL
FASHIONED KNITTING MACHINE WAS NOT BEYOND THE SKILL OF THE ART AND WAS
PLAINLY FORESHADOWED, IF NOT COMPLETELY ANTICIPATED, BY NUSBAUM.    THE
CLAIMS IN SUIT DO NOT EMBRACE A TRAIN OF MECHANISM OF ANY PARTICULAR
TYPE FOR THE TRANSMISSION OF CONTROL FROM THE POWER SHAFT TO THE PAWLS
AND SO CANNOT REST ON ANY DIFFERENCES BETWEEN THE TRAIN EMPLOYED BY
SCHLETTER AND THAT OF EARLIER DEVICES.  AS THE COURT BELOW POINTED OUT,
IF THE PATENT IS VALID IT IS EITHER BECAUSE OF THE NOVELTY OF THE
CONCEPTION OF EMPLOYING THE NUSBAUM DEVICE IN AN ATTACHMENT FOR A FULL
FASHIONED MACHINE, WHICH NUSBAUM HAD NOT DONE, OR BECAUSE OF TECHNICAL
DIFFICULTIES IN EXECUTING THAT CONCEPTION.  IF THERE WERE SUCH
DIFFICULTIES, WHICH COULD BE OVERCOME ONLY BY INVENTION, SCHLETTER DID
NOT SHOW WHAT THEY WERE OR DEFINE SUCH AN INVENTION BY THE CLAIMS
BEFORE US.  HE DID SHOW IN HIS SPECIFICATIONS HOW TO PROVIDE, BY
FAMILIAR MECHANICAL MEANS, FOR ONE NECESSARY RELATIONSHIP OF THE
ATTACHMENT TO THE PRINCIPAL MACHINE - THE NECESSITY THAT THE THREADED
SPINDLE REMAIN STATIONARY WHILE THE FASHIONING STOPS ARE MOVING.  FOR
THIS NO INVENTION IS CLAIMED, NOR WELL COULD BE IN VIEW OF THE STATE OF
THE ART. 

PETITIONER RELIES ON THE NOVELTY OF CONCEPTION REINFORCED BY AN
ALLEGED COMMERCIAL SUCCESS.  COMMERCIAL SUCCESS MAY BE DECISIVE WHERE
INVENTION IS IN DOUBT, BUT AN INSUPERABLE OBSTACLE TO THE INVOCATION OF
THAT DOCTRINE HERE IS OUR INABILITY, LIKE THAT OF THE COURT BELOW, TO
SAY "THAT AN ART WHICH KNEW HOW TO REINFORCE 'FULL-FASHIONED' WEBS
WITHOUT RE-ENTRANT ANGLES, AND STRAIGHT EDGED WEBS WITH SUCH ANGLES,
REQUIRED SOME UNCOMMON TALENT MERELY TO CONCEIVE OF COMBINING THE TWO,
FOR, AS WE HAVE SAID, THE PATENT CAN ONLY STAND ON THE BARE
CONCEPTION."  87 F.(2D) 705. 

IT IS SIGNIFICANT THAT THE COURTS WHICH, IN TEXTILE MACHINE WORKS V.
ALFRED HOFMANN, INC., SUPRA, FOUND INVENTION, SUPPORTED BY COMMERCIAL
SUCCESS, POINTED TO THE NOVELTY NOT OF THIS CONCEPTION BUT OF ADDING TO
THE ELEMENTS OF THE GOTHAM MACHINE THE AUTOMATIC PATTERN CONTROLLED
MEANS FOR REVERSING THE SCREW SPINDLE.  BUT NEITHER COURT MADE MENTION
OF THE NUSBAUM MACHINE WHICH SUPPLIED THAT ELEMENT.  UPON THE RECORD
BEFORE US WE CANNOT SAY THAT THE COMMERCIAL SUCCESS IS ATTRIBUTABLE TO
NOVELTY OF THE BARE CONCEPTION OF THE USE OF THE ATTACHMENT WITH FULL
FASHIONED KNITTING MACHINES RATHER THAN TO THE SKILL WITH WHICH THE
PATENTEE DEVISED MECHANISMS FOR MAKING THE ATTACHMENT EFFECTIVE, BUT
FOR WHICH HE MADE NO CLAIM, OR TO THE STRENGTH OF THE HANDS INTO WHICH
THE PATENT CAME.  COMPARE PARAMOUNT PUBLIX CORP. V. AMERICAN TRI-ERGON
CORP., 294 U.S. 464, 474, WITH ALTOONA PUBLIX THEATRES V. AMERICAN TRI
ERGON CORP., SUPRA, 487.  AFFIRMED. 
..END :






CHRISTOPHER V. BRUSSELBACK, 302 U.S. 500 


NO. 108.  ARGUED DECEMBER 16, 1937.  - DECIDED JANUARY 3, 1938.  - 87
F.(2D) 761, REVERSED. 


1.  SEC. 16 OF THE FEDERAL FARM LOAN ACT OF JULY 17, 1916, DECLARES
THAT SHAREHOLDERS OF EVERY JOINT STOCK LAND BANK ORGANIZED UNDER THE
ACT SHALL BE HELD INDIVIDUALLY RESPONSIBLE, EQUALLY AND RATABLY, AND
NOT ONE FOR ANOTHER, FOR THE DEBTS OF THE BANK TO THE EXTENT OF THE
AMOUNT OF STCOK OWNED BY THEM AT THE PAR VALUE THEREOF, IN ADDITION TO
THE AMOUNT PAID IN AND REPRESENTED BY THEIR SHARES.  HELD: 

(1)  THAT THE ONLY MEANS OF ENFORCING THE LIABILITY FOR CREDITORS IS
AN ADVERSARY SUIT IN EQUITY AGAINST THE STOCKHOLDERS WHEREVER THEY MAY
BE FOUND.  P. 502. 

(2)  THE LIABILITY OF EACH STOCKHOLDER IS PERSONAL, ENFORCEABLE ONLY
IN A COURT HAVING JURISDICTION TO RENDER A JUDGMENT AGAINST HIM IN
PERSONAM, AND A JUDICIAL DETERMINATION OF THE INABILITY OF THE BANK TO
PAY ITS DEBTS AND OF THE AMOUNT TO BE ASSESSED AGAINST THE STOCKHOLDERS
TO MEET THE DEFICIENCY ARE PREREQUISITES TO THE ENFORCEMENT OF
LIABILITY, AND ARE ESSENTIAL PARTS OF THE ONLY CAUSE OF ACTION WHICH
THE STATUTE GIVES TO THE CREDITORS.  ID. 

(3)  A BILL AGAINST STOCKHOLDERS WHICH SOUGHT TO COLLECT AN
ASSESSMENT DECREED IN ANOTHER SUIT BUT WHICH SHOWED ON ITS FACE THAT,
THOUGH NAMED AS DEFENDANTS, THEY WERE NOT SERVED WITH PROCESS IN THAT
SUIT, AND WHICH OMITTED TO ALLEGE THE EXISTENCE AND EXTENT OF
INSOLVENCY OF THE BANK, FAILED TO STATE A CAUSE OF ACTION.  P. 502. 

2.  THE PURPOSE OF EQUITY RULE 38, PROVIDING THAT IN A CLASS SUIT
"ONE OR MORE MAY SUE OR DEFEND FOR THE WHOLE," WAS PROCEDURAL, NOT TO
ENLARGE JURISDICTION OF FEDERAL COURTS.  P. 505. 

3.  THIS RULE PRESERVES THE JURISDICTION OF FEDERAL COURTS OF EQUITY
IN A CLASS SUIT TO RENDER A DECREE BINDING UPON ABSENT DEFENDANTS
AFFECTING THEIR INTEREST IN PROPERTY WITHIN THE JURISDICTION OF THE
COURT.  P. 505. 

CHRISTOPHER ET AL. V. BRUSSELBACK ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 672, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
STOCKHOLDERS OF A FEDERAL JOINT STOCK LAND BANK, THE PRESENT
PETITIONERS, IN A SUIT AGAINST THEM BY THE CREDITORS OF THE BANK, THE
RESPONDENTS HERE, TO COLLECT A STOCKHOLDERS' LIABILITY ASSESSMENT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, CREDITORS OF A FEDERAL JOINT STOCK LAND BANK LOCATED IN
ILLINOIS, BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT FOR SOUTHERN
OHIO TO COLLECT A 100% ASSESSMENT OF THE STATUTORY DOUBLE LIABILITY OF
ITS SHAREHOLDERS, WHICH HAD PREVIOUSLY BEEN DECREED IN A SUIT BROUGHT
BY RESPONDENTS IN THE DISTRICT COURT FOR NORTHERN ILLINOIS.  IN THE
ILLINOIS SUIT THE BANK AND ALL ITS STOCKHOLDERS WERE NAMED AS PARTIES
DEFENDANT, BUT THE PRESENT DEFENDANTS, PETITIONERS HERE, WHO ARE
STOCKHOLDERS RESIDING IN OHIO, WERE NOT SERVED WITH PROCESS.  A MOTION
IN THE DISTRICT COURT TO DISMISS THE PRESENT SUIT RAISED THE QUESTION
WHETHER THE BILL OF COMPLAINT, WHICH SETS UP THE DECREE OF THE COURT IN
THE ILLINOIS SUIT IN WHICH IT STATES PETITIONERS WERE NOT SERVED WITH
PROCESS, BUT DOES NOT ALLEGE THAT THE BANK IS INSOLVENT OR SHOW ANY
NECESSITY FOR THE ASSESSMENT, STATES A CAUSE OF ACTION.  THE DISTRICT
COURT GAVE JUDGMENT FOR PETITIONERS WHICH THE COURT OF APPEALS FOR THE
SIXTH CIRCUIT REVERSED.  BRUSSELBACK V. ARNOVITZ, 87 F.(2D) 761.  WE
GRANTED CERTIORARI, TO RESOLVE A CONFLICT BETWEEN THE DECISION OF THE
COURT BELOW AND THAT OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN
HOLMBERG V. CARR, 86 F.(2D) 727.  COMPARE BRUSSELBACK V. CAGO
CORPORATION, 85 F.(2D) 20. 

THE QUESTION DECISIVE OF THE CASE IS WHETHER PETITIONERS ARE BOUND BY
THE ILLINOIS ADJUDICATION, IN THEIR ABSENCE, OF THE BANK'S INSOLVENCY,
AND THE AMOUNT OF THE ASSESSMENT.  SECTION 16, FEDERAL FARM LOAN ACT,
JULY 17, 1916, C. 245, 39 STAT. 360, 374, 12 U.S.C. SEC. 812, PROVIDES,
"SHAREHOLDERS OF EVERY JOINT STOCK LAND BANK ORGANIZED UNDER THIS ACT
SHALL BE HELD INDIVIDUALLY RESPONSIBLE, EQUALLY AND RATABLY, AND NOT
ONE FOR ANOTHER, FOR ALL CONTRACTS, DEBTS, AND ENGAGEMENTS OF SUCH BANK
TO THE EXTENT OF THE AMOUNT OF STOCK OWNED BY THEM AT THE PAR VALUE
THEREOF, IN ADDITION TO THE AMOUNT PAID IN AND REPRESENTED BY THEIR
SHARES." 

BEFORE RESPONDENTS HAD BROUGHT THE ILLINOIS SUIT THIS COURT IN
WHEELER V. GREENE, 280 U.S. 49, HAD BEFORE IT THE PROVISIONS OF THE
FEDERAL FARM LOAN ACT WHICH AUTHORIZE THE FARM LOAN BOARD TO DECLARE A
JOINT STOCK LAND BANK INSOLVENT, AND TO PLACE IT IN THE HANDS OF A
RECEIVER.  SEC. 29, FEDERAL FARM LOAN ACT, JULY 17, 1916; C. 245, 39
STAT. 381; 12 U.S.C. SECS. 961, 963.  WE HELD THAT THOSE PROVISIONS DO
NOT CONFER UPON THE FEDERAL FARM LOAN BOARD ANY POWER TO LEVY AN
ASSESSMENT ON THE STOCKHOLDERS, OR GIVE TO THE RECEIVER AUTHORITY TO
MAINTAIN SUIT FOR THE ENFORCEMENT OF THEIR STATUTORY LIABILITY, OR
OTHERWISE SET UP ANY MACHINERY COMPARABLE TO THAT OF THE NATIONAL
BANKING ACT FOR ENFORCING THE STOCKHOLDERS' LIABILITY.  COMPARE RANKIN
V. BARTON, 199 U.S. 228, 232; CASEY V. GALLI, 94 U.S. 673, 681.  THE
ONLY MEANS OF ENFORCING THE LIABILITY LEFT TO CREDITORS OF A JOINT
STOCK LAND BANK, AS THE COURT POINTED OUT IN THE WHEELER CASE, IS AN
ADVERSARY SUIT IN EQUITY AGAINST THE STOCKHOLDERS WHEREVER THEY MAY BE
FOUND. 

THE OBLIGATION WHICH THE STATUTE IMPOSES UPON THE STOCKHOLDERS IS
PERSONAL, AND PETITIONERS CAN BE HELD TO RESPOND TO IT ONLY BY A SUIT
MAINTAINED IN A COURT HAVING JURISDICTION TO RENDER A JUDGMENT AGAINST
THEM IN PERSONAM.  AS THE LIABILITY OF THE STOCKHOLDERS IS TO PAY THE
DEBTS OF THE BANK TO CREDITORS "EQUALLY AND RATABLY," JUDICIAL
DETERMINATION OF THE INABILITY OF THE BANK TO PAY ITS DEBTS AND THE
AMOUNT TO BE ASSESSED AGAINST THE STOCKHOLDERS TO MEET THE DEFICIENCY
ARE PREREQUISITES TO THE ENFORCEMENT OF LIABILITY, AND ARE ESSENTIAL
PARTS OF THE ONLY CAUSE OF ACTION WHICH THE STATUTE GIVES TO THE
CREDITORS.  IT IS PLAIN THAT IN SUCH A SUIT THE EXISTENCE AND EXTENT OF
INSOLVENCY ARE FACTS, THE ALLEGATION AND PROOF OF WHICH CANNOT BE
DISPENSED WITH AS TO ANY STOCKHOLDER UNLESS, AS BETWEEN THE PARTIES TO
THE SUIT, THEY ARE MATTERS ALREADY ADJUDICATED. 

A STOCKHOLDER IS SO FAR AN INTEGRAL PART OF THE CORPORATION OF WHICH
HE IS A MEMBER, THAT HE MAY BE BOUND AND HIS RIGHTS FORECLOSED BY
AUTHORIZED CORPORATE ACTION TAKEN WITHOUT HIS KNOWLEDGE OR
PARTICIPATION.  SANGER V. UPTON, 91 U.S. 56, 58.  THE SUBSCRIBER TO
CORPORATE STOCK, WHOSE SUBSCRIPTION IS PAYABLE ON CALL OF THE
DIRECTORS, AS REQUIRED FOR CORPORATE PURPOSES, IS BOUND BY THE ACTION
OF THE BOARD IN MAKING THE CALL AS HE IS BOUND BY A VALID DECREE OF A
COURT AGAINST THE CORPORATION, ALTHOUGH MADE IN HIS ABSENCE, WHICH
DIRECTS PERFORMANCE OF THE CORPORATE DUTY TO MAKE THE CALL.  HAWKINS V.
GLENN, 131 U.S. 319, 329; GREAT WESTERN TELEGRAPH CO. V. PURDY, 162
U.S. 329, 336; CF. KERRISON V. STEWART, 93 U.S. 155.  SIMILARLY, WHERE
A PROCEDURE IS AUTHORIZED BY STATUTE, UNDER WHICH A CORPORATION MAY BE
BROUGHT INTO COURT FOR DETERMINATION OF ITS INSOLVENCY AND THE AMOUNT
TO BE ASSESSED AGAINST STOCKHOLDERS FOR THE PAYMENT OF ITS DEBTS, AND
THE JUDGMENT IS DECLARED BY STATUTE TO BE BINDING UPON THEM, THEY ARE
DEEMED BY VIRTUE OF THEIR MEMBERSHIP IN THE CORPORATION TO HAVE SO FAR
SUBJECTED THEMSELVES TO THE PRESCRIBED PROCEDURE AND ITS CONSEQUENCES
AS TO BE BOUND BY THE DETERMINATION ALTHOUGH NOT NOMINAL PARTIES TO THE
PROCEEDING.  BERNHEIMER V. CONVERSE, 206 U.S. 516; CONVERSE V.
HAMILTON, 224 U.S. 243; SELIG V. HAMILTON, 234 U.S. 652; MARIN V.
AUGEDAHL, 247 U.S. 142; CHANDLER V. PEKETZ, 297 U.S. 609. 

WHETHER IT BE SAID THAT BY PURCHASING OR RETAINING HIS STOCK IN THE
FACE OF SUCH A PROCEDURE THE STOCKHOLDER HAS CONSENTED THAT THE
CORPORATION REPRESENT HIM FOR THE PURPOSES OF THE ADJUDICATION,
BERNHEIMER V. CONVERSE, SUPRA, 529, 532, 533; MARIN V. AUGEDAHL, SUPRA,
150, OR MORE REALISTICALLY THAT AS STOCKHOLDER HE HAS VOLUNTARILY
ASSUMED A CORPORATE RELATIONSHIP WHICH IS SUBJECT TO THE LOCAL
REGULATORY POWER, IN THE EXERCISE OF WHICH THE PROCEDURE HAS BEEN
ATTACHED, AS AN INCIDENT, TO HIS MEMBERSHIP IN THE CORPORATION,
CONVERSE V. HAMILTON, SUPRA, 260, IN EITHER CASE THE PROCEDURE CONFORMS
TO ACCEPTED PRINCIPLES, INVOLVES NO WANT OF DUE PROCESS, CONVERSE V.
HAMILTON, SUPRA; SELIG V. HAMILTON, SUPRA; CHANDLER V. PEKETZ, SUPRA,
AND AT LEAST WHEN IT RIPENS INTO A JUDGMENT IS ENTITLED TO FULL FAITH
AND CREDIT.  MARIN V. AUGEDAHL, SUPRA.  IT IS ENOUGH THAT IN EVERY CASE
THE STOCKHOLDER HAS ASSUMED OR RETAINED HIS MEMBERSHIP IN THE
CORPORATION AFTER THE WARNING OF THE STATUTE, OR OF RULES GOVERNING THE
CORPORATION, OF WHICH HE KNEW OR HAD OPPORTUNITY TO KNOW, THAT THE
BENEFITS OF MEMBERSHIP CARRY WITH THEM THE RISK THAT THE CORPORATION
MAY STAND IN JUDGMENT FOR HIM. 

IN THE PRESENT CASE NO SUCH WARNING HAS BEEN GIVEN, FOR NO SUCH
PROCEDURE HAS BEEN PRESCRIBED.  THE STATUTES HAVE FIXED ONLY THE
CONDITIONS ON WHICH LIABILITY OF THE STOCKHOLDERS IS TO ATTACH, LEAVING
TO CREDITORS AS THEIR ONLY RECOURSE THE USUAL PROCEDURE OF COURTS AS
THE MEANS OF ASSERTING THE LIABILITY.  THERE IS NOTHING IN THE STATUTE
RELATING TO THE ORGANIZATION OF FEDERAL LAND BANKS AND THE IMPOSITION
OF THE STOCKHOLDERS' LIABILITY TO SUGGEST THAT BY VIRTUE OF THEIR
MEMBERSHIP IN THE CORPORATION THE STOCKHOLDERS CAN BE SAID TO HAVE
SUBJECTED THEMSELVES TO A PROCEDURE FOR DETERMINING IN THEIR ABSENCE
THE ESSENTIAL CONDITIONS OF LIABILITY, OR TO HAVE RELINQUISHED THEIR
RIGHT TO CONTEST, AS IN ANY OTHER LITIGATION, EVERY STEP ESSENTIAL TO
ITS ESTABLISHMENT.  AS WE CANNOT SAY THAT PETITIONERS' MEMBERSHIP IN
THE BANK WAS CONDITIONED UPON THEIR SURRENDER OF THE BENEFITS OF A
PROCEDURE WHICH WOULD OTHERWISE BE REQUIRED, THERE IS NO BASIS FOR A
COURT TO DISPENSE WITH IT MORE THAN IN OTHER CASES IN WHICH A PERSONAL
JUDGMENT IS SOUGHT. 

EQUITY RULE 38, PROVIDING THAT IN A CLASS SUIT "ONE OR MORE MAY SUE
OR DEFEND FOR THE WHOLE," WAS ADOPTED IN THE EXERCISE OF THE AUTHORITY
CONFERRED ON THIS COURT BY R.S. SEC. 913, AND OF ITS OWN INHERENT POWER
TO REGULATE BY RULES "THE MODES OF PROCEEDING IN SUITS OF EQUITY." 
THEIR PURPOSE WAS TO PRESCRIBE THE PROCEDURE IN EQUITY TO BE FOLLOWED
IN CASES WITHIN THE JURISDICTION OF THE FEDERAL COURTS AND NOT TO
ENLARGE THEIR JURISDICTION.  THE OMISSION FROM OLD RULE 48, AMENDED AND
PROMULGATED AS RULE 38 IN 1912, 226 U.S. 659, OF THE PHRASE "...  THE
DECREE SHALL BE WITHOUT PREJUDICE TO THE RIGHTS AND CLAIMS OF ALL THE
ABSENT PARTIES" PRESERVED UNIMPAIRED THE JURISDICTION OF FEDERAL COURTS
OF EQUITY IN A CLASS SUIT TO RENDER A DECREE BINDING UPON ABSENT
DEFENDANTS AFFECTING THEIR INTEREST IN PROPERTY WITHIN THE JURISDICTION
OF THE COURT.  SMITH V. SWORMSTEDT, 16 HOW.  288; CF. HARTFORD LIFE
INS. CO. V. IBS, 237 U.S. 662, 672. 

IN THE CIRCUMSTANCES THE DECREE IN THE ILLINOIS SUIT WAS NOT RES
ADJUDICATA AS TO PETITIONERS IN ANY RESPECT.  FOR THAT REASON THE BILL
OF COMPLAINT FAILED TO STATE A CAUSE OF ACTION, AND THE DECREE IS
REVERSED. 

MR. JUSTICE BRANDEIS AND MR. JUSTICE CARDOZO TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 
..END :













SCHUYLKILL TRUST CO. V. PENNA., 302 U.S. 506 


NO. 447.  ARGUED DECEMBER 6, 1937.  - DECIDED JANUARY 3, 1938.  - 327
PA. 127 - 193 ATL. 638, AFFIRMED. 


1.  A STATE LAW AS CONSTRUED BY THE STATE SUPREME COURT TO SUSTAIN A
TAX WAS FOUND UNCONSTITUTIONAL BY THIS COURT, AND MANDATE ISSUED
REVERSING THE JUDGMENT AND REMANDING THE CAUSE FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THE OPINION.  HELD THAT THE STATE COURT WAS NOT
THEREBY PRECLUDED FROM REASSESSING THE TAX UPON A REVISED CONSTRUCTION
OF THE STATUTE ELIMINATING THE UNCONSTITUTIONAL FEATURES.  P. 512. 

2.  WHETHER STATE COURTS IN CONSTRUING A TAXING ACT SO AS TO AVOID
CONFLICT WITH THE FEDERAL CONSTITUTION IN EFFECT EXERCISED LEGISLATIVE
POWER IN VIOLATION OF THE STATE CONSTITUTION,  - HELD NOT A FEDERAL
QUESTION.  P. 512. 

3.  THE TAX IN RESPECT OF TRUST COMPANIES LAID BY THE PENNSYLVANIA
ACT OF JUNE 13, 1907, AS AMENDED, IS A TAX UPON THE SHARES RATHER THAN
UPON THE CORPORATE ASSETS.  P. 512. 

4.  IN TAXING SHARES OF A TRUST COMPANY ON THE BASIS OF THEIR VALUE
AS REFLECTED FROM ITS PAID-IN CAPITAL STOCK, SURPLUS AND UNDIVIDED
PROFITS, A STATE IS NOT OBLIGED TO EXCLUDE FROM THE VALUATION
OBLIGATIONS OF THE FEDERAL GOVERNMENT OR ITS INSTRUMENTALITIES
BELONGING TO THE COMPANY.  P. 513. 

BUT SHARES OF NATIONAL BANKS ALREADY TAXED TO THE COMPANY, AS OWNER
PURSUANT TO R.S. SEC. 5219, CAN NOT BE INCLUDED IN SUCH VALUATION. 

5.  UNDER PENNSYLVANIA ACT OF JUNE 13, 1907, AS AMENDED, THE SHARES
OF A LOCAL TRUST COMPANY ARE VALUED FOR TAXATION ON THE BASIS OF THE
AMOUNT OF THE COMPANY'S PAID-IN CAPITAL STOCK, SURPLUS AND UNDIVIDED
PROFITS MINUS ITS INVESTMENTS IN SHARES OF PENNSYLVANIA CORPORATIONS
WHICH ARE LIABLE TO PAY, OR ARE EXEMPTED FROM, A CAPITAL STOCK TAX, OR
WHICH ARE RELIEVED FROM A TAX ON SHARES.  IF THE TRUST COMPANY FAILS TO
SHOW THAT SUCH INVESTMENTS REPRESENT CAPITAL, SURPLUS AND UNDIVIDED
PROFITS RATHER THAN PURCHASE WITH DEPOSITS, THEY ARE ALLOWED A PARTIAL
OR "PROPORTIONATE" EXEMPTION, COMPUTED BY USE OF A FORMULA.  HELD: 

(1)  THAT WHERE OBLIGATIONS OF THE UNITED STATES OR ITS
INSTRUMENTALITIES, (OTHER THAN NATIONAL BANK SHARES) WERE
PROPORTIONATELY EXEMPTED, IN THE SAME WAY AS OTHER INVESTMENTS OF A
TRUST COMPANY, THERE WAS NO GROUND TO CLAIM DISCRIMINATION AGAINST SUCH
OBLIGATIONS IN ASSESSING THE SHARE TAX.  P. 514. 

(2)  THE FACT THAT THE SHAREHOLDERS OF A TRUST COMPANY WHOSE
INVESTMENTS CONSIST OF NATIONAL BANK STOCK WOULD PAY NO TAX, BECAUSE
R.S. SEC. 5219 PERMITS BUT A SINGLE TAX THEREON WHICH HAS BEEN PAID BY
THE COMPANY AS OWNER, WHEREAS THOSE HOLDING SHARES IN A TRUST COMPANY
WHICH OWNS ONLY OTHER FEDERAL SECURITIES WOULD NOT BE ENTITLED TO A
SIMILAR TOTAL EXEMPTION BUT ONLY TO A PROPORTIONATE DEDUCTION UNLESS IT
COULD BE SHOWN THAT THOSE SECURITIES WERE PURCHASED FROM CAPITAL,
SURPLUS, AND UNDIVIDED PROFITS, DOES NOT EVIDENCE ANY ILLEGAL
DISCRIMINATION AGAINST SUCH SECURITIES.  P. 514. 

(3)  THE PRINCIPLE OF EQUAL PROTECTION DOES NOT DEMAND THAT BECAUSE
ONE COMPANY OWNS WHOLLY EXEMPT SECURITIES, WITH CONSEQUENT EXEMPTION OF
ITS SHAREHOLDERS FROM THE TAX ON SHARES, THE STATE SHALL ABSTAIN FROM
TAXING THE SHAREHOLDERS OF ANOTHER COMPANY WHOSE INVESTMENTS CARRY NO
SUCH EXEMPTION.  P. 514. 

6.  A STATE TAX ON THE SHARES OF A DOMESTIC CORPORATION, ASSESSED ON
THE BASIS OF THE CORPORATE ASSETS AND PAYABLE BY OR COLLECTED THROUGH
THE CORPORATION, MAY CONSISTENTLY WITH THE FOURTEENTH AMENDMENT EXTEND
TO SHARES OWNED BY NON-RESIDENTS.  CORRY V. BALTIMORE, 196 U.S. 466. 
P. 514. 

SO HELD WHERE THE CORPORATE CHARTER ANTEDATED THE CREATION OF THE TAX
LIABILITY BUT WAS SUBJECT TO A POWER TO ALTER, AMEND OR REPEAL RESERVED
BY THE STATE CONSTITUTION. 

7.  WHERE A STATE HAS RESERVED THE RIGHT TO ALTER, AMEND AND REPEAL
THE CHARTER OF A CORPORATION, EVERY STOCKHOLDER ACQUIRES HIS SHARES
WITH FULL KNOWLEDGE THAT HIS INTEREST IN THE CORPORATION IS SUBJECT TO
REGULATION AND TAXATION BY THE STATE.  P. 516. 

SCHUYLKILL TRUST CO. V. PENNSYLVANIA. 

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT REDETERMINING A TAX
ASSESSMENT.  CF. S.C., 296 U.S. 113. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN SCHUYLKILL TRUST CO. V. PENNSYLVANIA, 296 U.S. 113, WE HELD AN ACT
OF PENNSYLVANIA  FN1 INVALID AS CONSTRUED AND APPLIED IN THE
CALCULATION OF THE AMOUNT OF THE TAX THEREBY IMPOSED.  THE STATUTE
REQUIRES EVERY TRUST COMPANY CHARTERED UNDER THE GENERAL CORPORATION
LAW TO REPORT ANNUALLY TO THE DEPARTMENT OF REVENUE THE NUMBER OF
OUTSTANDING SHARES AND THEIR ACTUAL VALUE AT THE CLOSE OF THE PRECEDING
CALENDAR YEAR.  THE DEPARTMENT IS TO ASSESS THE SHARES FOR TAXATION AT
FIVE MILLS UPON THE DOLLAR.  THE TAXABLE VALUE OF EACH SHARE IS TO BE
ASCERTAINED BY ADDING TOGETHER SO MUCH OF THE AMOUNT OF PAID-IN CAPITAL
STOCK, SURPLUS, AND UNDIVIDED PROFITS AS IS NOT INVESTED IN SHARES OF
CORPORATIONS LIABLE TO PAY OR EXEMPTED FROM PAYMENT OF THE PENNSYLVANIA
CAPITAL STOCK TAX, OR RELIEVED FROM THE PAYMENT OF A TAX ON SHARES, AND
DIVIDING THIS AMOUNT BY THE NUMBER OF SHARES.  THE COMPANY MUST PAY THE
TAX FROM ITS GENERAL FUND WITHIN SIXTY DAYS AFTER ASSESSMENT, OR
COLLECT IT FROM THE SHAREHOLDERS AND PAY IT OVER.  PROVISION IS MADE
FOR POSTING NOTICE OF THE ASSESSMENT IN THE COMPANY'S OFFICE SO THAT
SHAREHOLDERS SHALL BE ADVISED OF THE AMOUNT OF THE ASSESSMENT AND FOR A
HEARING OF ANY SHAREHOLDER WHO OBJECTS TO THE VALUATION OF THE SHARES. 
FN2 

SECURITIES OWNED BY A TRUST COMPANY MAY HAVE BEEN PURCHASED OUT OF
DEPOSITS OR FROM THE CAPITAL, SURPLUS, AND UNDIVIDED PROFITS.  SINCE
SECURITIES THE VALUE OF WHICH IS BY THE ACT DEDUCTIBLE FROM THE TAX
BASE MAY HAVE BEEN PURCHASED OUT OF EITHER OF THE TWO FUNDS, IT IS OPEN
TO THE COMPANY TO PROVE THAT THEY OR ANY OF THEM WERE PURCHASED OUT OF
CAPITAL, SURPLUS, OR UNDIVIDED PROFITS.  UPON SUCH A SHOWING THESE
SECURITIES ARE FULLY EXEMPT FROM TAX.  WHERE THE COMPANY HAS NOT MADE
THIS SHOWING THE PRACTICE IN ASSESSING THE TAX HAS BEEN TO GRANT A SO
CALLED PROPORTIONATE DEDUCTION IN RESPECT OF SUCH EXEMPT SECURITIES. 
FN3  THIS IS ACCOMPLISHED BY THE USE OF THE FOLLOWING FORMULA: A
FRACTION, THE NUMERATOR OF WHICH IS THE CAPITAL, SURPLUS, AND UNDIVIDED
PROFITS AT BOOK VALUE LESS THE BOOK VALUE OF THOSE INVESTMENTS, IF ANY,
FOR WHICH A FULL DEDUCTION HAS BEEN MADE, AND THE DENOMINATOR, THE BOOK
VALUE OF THE PERMANENT INVESTMENTS, LESS THE BOOK VALUE OF THOSE
INVESTMENTS, IF ANY, FOR WHICH A FULL DEDUCTION HAS BEEN MADE, IS
APPLIED TO THE BOOK VALUE OF THE SECURITIES WHICH ARE TO BE
APPORTIONED, AFTER ADJUSTMENT FOR APPRECIATION OR DEPRECIATION OF THOSE
SECURITIES, AND THE RESULTING SUM IS DEDUCTED FROM THE CAPITAL,
SURPLUS, AND UNDIVIDED PROFITS.  IN THIS MANNER A PORTION OF THE VALUE
OF EACH EXEMPTED SECURITY REFLECTED IN THE CAPITAL, SURPLUS, AND
PROFITS IS DEDUCTED BEFORE THE VALUE PER SHARE IS DETERMINED BY
DIVIDING THE CAPITAL SURPLUS AND PROFITS SO DIMINISHED BY THE NUMBER OF
SHARES OUTSTANDING. 

UPON THE FORMER APPEAL IT WAS SHOWN THAT WHEREAS A PROPORTIONATE
DEDUCTION WAS ALLOWED FOR SHARES OF PENNSYLVANIA CORPORATIONS
PREVIOUSLY TAXED, OR SHARES OF SUCH CORPORATIONS EXEMPT FROM TAX, NO
DEDUCTION WAS ACCORDED IN RESPECT OF SHARES OF A NATIONAL BANK AND
BONDS OF THE FEDERAL GOVERNMENT AND ITS INSTRUMENTALITIES OWNED BY THE
COMPANY.  THE APPELLANT'S POSITION WAS THAT THE ACT, THOUGH IT
PURPORTED TO TAX THE SHARES, IN FACT TAXED THE NET ASSETS OF THE
COMPANY WHICH INCLUDED SHARES OF STOCK OF A NATIONAL BANK AND
SECURITIES OF THE FEDERAL GOVERNMENT AND ITS INSTRUMENTALITIES OWNED BY
THE APPELLANT.  AN ALTERNATIVE CLAIM WAS THAT, IF THE LEVY WAS UPON THE
SHARES AS SUCH, THE APPLICATION OF THE ACT WORKED A DISCRIMINATION
AGAINST NATIONAL BANK SHARES AND OTHER FEDERAL SECURITIES BY EXCLUDING
FROM THE BASE A PROPORTIONATE PART OF THE VALUE OF SHARES OF CERTAIN
PENNSYLVANIA CORPORATIONS WHILE LEAVING IN THE BASE NATIONAL BANK
SHARES AND FEDERAL SECURITIES; AND THAT, IF THE TAX WAS UPON THE SHARES
IT WAS BAD, AS THE COMMONWEALTH WAS WITHOUT POWER TO TAX THE SHARES OF
NONRESIDENT STOCKHOLDERS.  THE COMMONWEALTH INSISTED THE TAX WAS UPON
THE SHARES AND NOT UPON ASSETS, THAT THE APPLICATION OF THE STATUTE
INVOLVED NO DISCRIMINATION AGAINST FEDERAL SECURITIES AND THAT THE
STATE HAD JURISDICTION TO TAX THE SHARES OF NONRESIDENT SHAREHOLDERS. 

WE FOUND IT UNNECESSARY TO DETERMINE WHETHER THE TAX WAS UPON SHARES
OR ASSETS.  AMONGST THE ASSETS WERE SHARES OF NATIONAL BANK STOCK WHICH
HAD BEEN TAXED TO THE COMPANY AS OWNER, PURSUANT TO R.S. 5219 AS
AMENDED.  FN4  THESE WE HELD MUST BE EXCLUDED FROM THE BASE UPON WHICH
THE TAX WAS CALCULATED.  WE HELD FURTHER THAT THE EXCLUSION FROM THE
BASE OF A PROPORTION OF THE VALUE OF TAX EXEMPT SHARES OF PENNSYLVANIA
CORPORATIONS, AND THE REFUSAL OF LIKE TREATMENT OF FEDERAL SECURITIES,
OPERATED AS AN UNCONSTITUTIONAL DISCRIMINATION AGAINST THE LATTER.  WE
REVERSED THE JUDGMENT OF THE SUPREME COURT OF PENNSYLVANIA AND REMANDED
THE CAUSE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH OUR OPINION. 

AFTER OUR MANDATE WENT DOWN THE COMMONWEALTH MOVED THE TRIAL COURT TO
REDETERMINE THE TAX BY DISREGARDING THE AMENDATORY STATUTE INVOLVED IN
OUR DECISION AND REVERTING TO THE BASIC ACT OF JUNE 13, 1907,  FN5
WHICH WAS CLAIMED NOT TO BE AFFECTED BY THE INFIRMITY OF THE AMENDATORY
ACT.  THE APPELLANT INSISTED THAT AS WE HAD SET ASIDE THE JUDGMENT AND
HELD THE AMENDATORY ACT OF APRIL 25, 1929,  FN6  INVALID AS CONSTRUED
AND APPLIED, THE ONLY ACTION OPEN TO THE TRIAL COURT WAS THE ENTRY OF A
JUDGMENT FOR THE APPELLANT.  THE COURT REFUSED TO FOLLOW EITHER OF THE
SUGGESTED COURSES, HOLDING THAT THE LEGISLATURE, BY THE ACT OF 1929,
INTENDED TO EXERCISE ONLY SUCH POWER AS IT LAWFULLY POSSESSED AND DID
NOT ATTEMPT TO IMPOSE A TAX UPON SECURITIES EXEMPTED BY FEDERAL LAW. 
IT FOUND THAT THE PURPOSE OF THE STATUTE COULD BE ACCOMPLISHED BY
ELIMINATING THE NATIONAL BANK SHARES FROM THE TAX BASE AND BY TREATING
THE OTHER FEDERAL SECURITIES IN THE SAME MANNER AS TAX EXEMPT STOCK OF
STATE CORPORATIONS.  IT ACCORDINGLY RECALCULATED THE TAX.  THE
APPELLANT TOOK THE CASE TO THE SUPREME COURT OF THE COMMONWEALTH WHICH
AFFIRMED THE JUDGMENT.  FN7 

BY APPROPRIATE EXCEPTIONS AND ASSIGNMENTS OF ERROR THE APPELLANT
CHALLENGES THE NEW JUDGMENT UPON THESE GROUNDS:  THAT THE COURTS BELOW
HAVE DISREGARDED THE MANDATE OF THIS COURT AND HAVE EXCEEDED THEIR
POWERS IN REASSESSING THE TAX; THAT THE TAX IS ONE UPON ASSETS AND NOT
UPON SHARES, AND FEDERAL SECURITIES ARE LEFT IN THE TAX BASE AS TO AT
LEAST A PORTION OF THEIR VALUE; THAT, IF THE TAX IS UPON THE SHARES
RATHER THAN UPON THE ASSETS, THERE IS STILL A DISCRIMINATION AGAINST
FEDERAL SECURITIES BECAUSE THE STOCKHOLDERS OF APPELLANT AND OTHER
SIMILAR CORPORATIONS ARE WHOLLY EXEMPTED FROM ANY TAX CALCULATED UPON
THE VALUE OF THE SHARES OF NATIONAL BANKS WHEREAS AT LEAST A PORTION OF
THE VALUE OF OTHER FEDERAL SECURITIES STILL REMAINS IN THE TAX BASE;
AND THAT, IN ANY EVENT, THE IMPOST IS BAD SO FAR AS IT IS LAID UPON THE
SHARES OF NONRESIDENT SHAREHOLDERS.  THE COMMONWEALTH ARGUES THAT THE
TAX IS UPON THE SHARES AS SUCH AND NOT UPON ASSETS; THAT IN ASSESSING
IT NO DISCRIMINATION IS PRACTICED AGAINST FEDERAL SECURITIES AND IN
FAVOR OF THE EXEMPTED STOCK OF PENNSYLVANIA CORPORATIONS AND THAT, IF
THE TAX IS OTHERWISE VALID, THE FACT THAT IT IS LAID UPON ALL
SHAREHOLDERS, INCLUDING NONRESIDENTS, DOES NOT VOID IT AS RESPECTS THE
LATTER. 

FIRST.  WHEN THE CASE WAS PREVIOUSLY HEARD WE HELD THE STATUTE
INVALID AS CONSTRUED AND APPLIED AND REMANDED THE CAUSE FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH OUR OPINION.  IT IS CLEAR THAT THE
STATE COURTS WERE NOT PRECLUDED FROM CONSTRUING THE STATUTE SO AS TO
ELIMINATE THE UNCONSTITUTIONAL FEATURES.  IT FOLLOWS THAT THE APPELLANT
WAS NOT ENTITLED, AS A MATTER OF RIGHT, TO A GENERAL JUDGMENT IN ITS
FAVOR EXEMPTING IT FROM ALL TAX. 

SECOND.  THE CONTENTION THAT THE STATE COURTS REALLY HAVE NOT
CONSTRUED THE ACT BUT HAVE THEMSELVES AMENDED IT, AND THAT THIS IS
JUDICIAL LEGISLATION FORBIDDEN BY THE CONSTITUTION OF PENNSYLVANIA, IS
NOT OPEN HERE.  AS THE TRIAL COURT POINTED OUT, COURTS, IN APPLYING A
STATUTE, GENERAL AND SWEEPING IN ITS TERMS, MAY CONSTRUE IT AS NOT
INTENDED TO REACH SUBJECTS WHICH, BY REASON OF CONSTITUTIONAL
PROHIBITION, THE LEGISLATURE IS WITHOUT POWER TO TOUCH.  WHETHER THE
COURTS OF THE COMMONWEALTH EXCEEDED THEIR POWERS UNDER THE STATE
CONSTITUTION IS NOT A FEDERAL QUESTION.  WE ACCEPT THEIR CONSTRUCTION
OF THE ACT. 

THIRD.  AS THE CASE IS NOW PRESENTED, WE FIND IT NECESSARY TO
DETERMINE WHETHER THE TAX IS UPON THE SHARES AS SUCH OR UPON THE
CAPITAL, SURPLUS, AND PROFITS OF THE COMPANY.  THE STATUTE ON ITS FACE
LAYS THE TAX UPON THE PROPERTY OF THE STOCKHOLDER, REPRESENTED BY THE
SHARES HE OWNS.  THE STATE COURTS, AND THE LOCAL FEDERAL COURT, HAVE
HELD THE IMPOSITION A TAX UPON THE SHARES.  FN8 THE HISTORY OF
LEGISLATION RESPECTING TAXATION OF BANKS AND TRUST COMPANIES IN
PENNSYLVANIA LEADS TO THE SAME CONCLUSION.  FN9  WE ARE OF OPINION THAT
THE TAX IS ONE UPON THE SHARES AS SUCH AND NOT UPON THE ASSETS OF THE
COMPANY. 

FOURTH.  THE STATE NEED NOT HAVE MADE ANY EXEMPTION OR CONCESSION IN
TAXING THE PROPERTY IN THE SHARES ON ACCOUNT OF VALUE THEREIN REFLECTED
FROM THE COMPANY'S OWNERSHIP OF OBLIGATIONS OF THE GOVERNMENT OR ITS
INSTRUMENTALITIES OTHER THAN NATIONAL BANK STOCK.  FN10  AND THE
DISCRIMINATION FOUND UPON THE EARLIER APPEAL IN FAILING TO ACCORD
PROPORTIONATE EXEMPTION TO FEDERAL SECURITIES SIMILAR TO THAT EXTENDED
TO EXEMPT SHARES OF DOMESTIC CORPORATIONS HAS BEEN REMOVED, FOR ALL ARE
NOW ACCORDED LIKE TREATMENT BY WAY OF DEDUCTION. 

FIFTH.  THE FACT THAT THE SHAREHOLDERS OF A TRUST COMPANY WHOSE
INVESTMENTS CONSIST OF NATIONAL BANK STOCK WOULD PAY NO TAX, BECAUSE
R.S. 5219 PERMITS BUT A SINGLE TAX THEREON WHICH HAS BEEN PAID BY THE
COMPANY AS OWNER, WHEREAS THOSE HOLDING SHARES IN A TRUST COMPANY WHICH
OWNS ONLY OTHER FEDERAL SECURITIES WOULD NOT BE ENTITLED TO A SIMILAR
TOTAL EXEMPTION BUT ONLY TO A PROPORTIONATE DEDUCTION UNLESS IT COULD
BE SHOWN THAT THOSE SECURITIES WERE PURCHASED FROM CAPITAL, SURPLUS,
AND UNDIVIDED PROFITS, DOES NOT EVIDENCE AN ILLEGAL DISCRIMINATION
AGAINST SUCH SECURITIES.  THE INABILITY OF A STATE TO MEASURE A TAX BY
CERTAIN ASSETS EXEMPTED BY FEDERAL LAW DOES NOT PRECLUDE IT FROM
RECKONING IN THE TAX BASE ALL THOSE IT CAN REACH.  AND THE PRINCIPLE OF
EQUAL PROTECTION DOES NOT DEMAND THAT BECAUSE ONE COMPANY OWNS WHOLLY
EXEMPT SECURITIES, WITH CONSEQUENT EXEMPTION OF ITS SHAREHOLDERS FROM
THE EXACTION, THE STATE SHALL ABSTAIN FROM TAXING THE SHAREHOLDERS OF
ANOTHER COMPANY WHOSE INVESTMENTS CARRY NO SUCH EXEMPTION. 

SIXTH.  THE STATE COURTS HAVE HELD THAT NONRESIDENT AS WELL AS
RESIDENT SHAREHOLDERS ARE WITHIN THE SCOPE OF THE STATUTE, AND WE ARE
BOUND BY THIS CONSTRUCTION.  THE APPELLANT ARGUES THAT AS THUS APPLIED
THE STATUTE WOULD TAKE THEIR PROPERTY WITHOUT DUE PROCESS AND DENY THEM
EQUAL PROTECTION IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES SINCE THE TAXING POWER OF
PENNSYLVANIA IS LIMITED TO PERSONS AND PROPERTY WITHIN HER
JURISDICTION.  THE CONTENTION WAS OVERRULED BY THE STATE SUPREME COURT,
AND WE THINK RIGHTLY SO, UPON THE AUTHORITY OF CORRY V. BALTIMORE, 196
U.S. 466.  THERE THIS COURT HELD THAT UNDER A SIMILAR STATUTE MARYLAND
AND ITS MUNICIPAL SUBDIVISIONS COULD IMPOSE A LEVY FOR REVENUE UPON
NONRESIDENT SHAREHOLDERS MEASURED BY THE VALUE OF THEIR SHARES IN A
DOMESTIC CORPORATION.  THE DISTINCTIONS BETWEEN THAT CASE AND THIS, TO
WHICH THE APPELLANT POINTS, ARE NOT SIGNIFICANT.  IN RELIANCE UPON
TAPPAN V. MERCHANTS' NATIONAL BANK, 19 WALL.  490, WHEREIN WE HELD IT
COMPETENT FOR THE UNITED STATES TO PROVIDE BY A STATUTE WHICH BECAME
PART OF THE CHARTER OF EVERY NATIONAL BANK THAT THE SHARES SHALL BE
TAXABLE TO THE SHAREHOLDERS BY THE STATE WHEREIN THE BANK IS LOCATED,
THE COURT PROCEEDED, IN THE CORRY CASE, TO THE PROPOSITION THAT WHERE A
STATE STATUTE MADE SIMILAR PROVISION FOR THE TAXATION OF THE SHARES OF
NONRESIDENT STOCKHOLDERS AT THE HOME OF A DOMESTIC CORPORATION, THE
LEGISLATION DID NOT VIOLATE THE FOURTEENTH AMENDMENT.  FN11  THERE THE
CORPORATION WAS MADE LIABLE FOR THE PAYMENT OF THE TAX AND GIVEN A
RIGHT OF REIMBURSEMENT OVER AGAINST THE SHAREHOLDERS.  HERE THE
APPELLANT HAS THE OPTION EITHER TO PAY THE TAX FROM ITS GENERAL FUND OR
TO COLLECT IT FROM THE SHAREHOLDER AND PAY IT OVER TO THE STATE.  THE
DISTINCTIONS THOUGHT BY THE APPELLANT TO REQUIRE A DIFFERENT RULING IN
THIS CASE ARE THAT, IN THE CORRY CASE, THE ACT DECLARING THE LIABILITY
OF THE SHARES OF NONRESIDENTS ANTEDATED THE CHARTER OF THE CORPORATION
AND PROVIDED THAT THE SITUS OF SHARES OWNED BY NONRESIDENTS SHOULD, FOR
THE PURPOSES OF TAXATION, BE AT THE DOMICILE OF THE CORPORATION IN THE
STATE OF MARYLAND WHEREAS, IN THE INSTANT CASE, THE STATUTE IMPOSING
THE TAX ON SHARES, WHICH HAS BEEN HELD TO INCLUDE THE SHARES OF
NONRESIDENTS, WAS ADOPTED TWENTY YEARS AFTER THE APPELLANT'S
INCORPORATION AND SAYS NOTHING ABOUT THE SITUS OF THE SHARES.  WE THINK
THESE DIFFERENCES ARE UNIMPORTANT IN RESPECT OF THE PRINCIPLE
INVOLVED.  THE STATE CONSTITUTION FOR MANY YEARS PRIOR TO THE GRANTING
OF THE CHARTER CONTAINED THE RESERVED RIGHT TO ALTER, AMEND, AND REPEAL
CORPORATE CHARTERS, AND EVERY STOCKHOLDER ACQUIRED HIS SHARES WITH FULL
KNOWLEDGE THAT HIS INTEREST IN THE CORPORATION WAS SUBJECT TO
REGULATION AND TAXATION.  MOREOVER, THE SHARES REPRESENT A PROPERTY
INTEREST, AN ALIQUOT PROPORTION OF THE WHOLE CORPORATE ASSETS.  THE
SHAREHOLDERS, WHETHER DOMESTIC OR FOREIGN, DEPEND FOR THE PRESERVATION
AND PROTECTION OF THIS PROPERTY UPON THE LAW OF THE STATE OF THE
CORPORATION'S DOMICILE.  THE PROPERTY RIGHT SO REPRESENTED IS OF VALUE,
ARISES WHERE THE CORPORATION HAS ITS HOME, AND IS THEREFORE WITHIN THE
TAXING JURISDICTION OF THAT STATE; FN12  AND THIS, NOTWITHSTANDING THE
OWNERSHIP OF THE STOCK MAY ALSO BE A TAXABLE SUBJECT IN ANOTHER STATE. 
FN13 

THE JUDGMENT IS AFFIRMED. 

FN1  ACT OF JUNE 13, 1907, P.L. 640, AS AMENDED BY THE ACTS OF JULY
11, 1923, P.L. 1071, MAY 7, 1927, P.L. 853, AND APRIL 25, 1929, P.L.
673. 

FN2  ACT OF APRIL 9, 1929, SEC. 807, P.L. 393. 

FN3  SEE COMMONWEALTH V. HAZELWOOD SAVINGS & TRUST CO., 271 PA. 375;
114 ATL. 368. 

FN4  U.S.C. TITLE 12, SEC. 548. 

FN5  SUPRA, NOTE 1. 

FN6  SUPRA, NOTE 1. 

FN7  327 PA. 127; 193 ATL. 638. 

FN8  COMMONWEALTH V. SCHUYLKILL TRUST CO., 315 PA. 429; 173 ATL. 309;
COMMONWEALTH V. MORTGAGE TRUST CO., 227 PA. 163, 174; 76 ATL. 5;
COMMONWEALTH V. UNION TRUST CO., 237 PA. 353, 355; 85 ATL. 461;
NORTHERN TRUST CO. V. MCCOACH, 215 FED. 991. 

FN9  AS EARLY AS 1867(ACT OF APRIL 12, 1867, P.L. 74) PENNSYLVANIA
IMPOSED A TAX ON THE SHARES OF NATIONAL BANK STOCK IN THE HANDS OF THE
HOLDERS.  SEE ALSO ACT OF APRIL 2, 1868, P.L. 55; ACT OF MAY 1, 1868,
P.L. 108, SEC. 10.  IT ALSO TAXED THE SHARES OF STATE BANKS.  ACT OF
DECEMBER 22, 1869, P.L. (1870) 1373; ACT OF JUNE 10, 1881, P.L. 99; ACT
OF JUNE 30, 1885, P.L. 193; ACT OF JUNE 8, 1891, P.L. 229, (THE LAST
NAMED ACT WAS SUSTAINED IN COMMONWEALTH V. MERCHANTS & MANUFACTURERS
NATIONAL BANK, 168 PA. 309; 31 ATL. 58; AFFIRMED 167 U.S. 461); ACT OF
JULY 15, 1897, P.L. 292, AMENDED BY ACT OF MAY 2, 1925, P.L. 497, AND
ACT OF APRIL 25, 1929, P.L. 677.  SOME OF THE EARLIER OF THESE ACTS
PROVIDED FOR THE TAXATION OF THE SHARES OF TRUST COMPANIES UPON THE
SAME BASIS AS SHARES OF BANKS WERE TAXED, BUT BY THE ACT OF JUNE 1,
1889, P.L. 420, TRUST COMPANIES WERE MADE LIABLE FOR A SO-CALLED
CAPITAL STOCK TAX WHICH IS IN FACT A TAX UPON ASSETS AND NO TAX WAS
LEVIED UPON THE SHARES IN SUCH COMPANIES.  THE ACT OF 1907(SUPRA, NOTE
1) WAS PASSED IN ORDER TO CONFORM TAXATION APPLICABLE TO TRUST
COMPANIES WITH THAT THEN CURRENT WITH RESPECT TO BANKS.  AS STATED IN
COMMONWEALTH V. MORTGAGE TRUST CO., 227 PA. 163, 175; 76 ATL. 58:  "THE
POLICY OF THE COMMONWEALTH FOR MORE THAN TWENTY YEARS WAS TO TAX THE
CAPITAL STOCK OF THESE COMPANIES IN THE SAME MANNER AS OTHER
CORPORATIONS CREATED UNDER THE GENERAL CORPORATION ACT OF 1874 WERE
TAXED....  THIS METHOD OF TAXING THE CAPITAL STOCK OF THESE
INSTITUTIONS CONTINUED IN FORCE UNTIL THE ACT OF 1907 WAS PASSED.  AS
THE TRUST COMPANY BUSINESS GREW IN MAGNITUDE  ...  THE QUESTION OF THE
PROPER METHOD OF TAXING THE CAPITAL STOCK OF THESE CORPORATIONS
FREQUENTLY AROSE.  IT WAS CONTENDED IN THEIR BEHALF THAT BANKS WERE
THEIR NATURAL COMPETITORS; THAT THEIR BUSINESS PARTOOK OF THE NATURE OF
BANKING; AND THAT THEY SHOULD BE TAXED IN LIKE MANNER.  AS A RESULT OF
THIS FEELING AND THE AGITATION WHICH FOLLOWED IT THE ACT OF 1907 WAS
PASSED.  IT IS APPARENT THAT THE LEGISLATURE INTENDED TO TAX TRUST
COMPANIES ON THE SAME BASIS AS BANKS." 

FN10  VAN ALLEN V. ASSESSORS, 3 WALL.  573; NATIONAL BANK V.
COMMONWEALTH, 9 WALL.  353, 359; CLEVELAND TRUST CO. V. LANDER, 184
U.S. 111; DES MOINES NATIONAL BANK V. FAIRWEATHER, 263 U.S. 103. 

FN11  THE CASE HAS BEEN CITED REPEATEDLY WITH APPROVAL.  COVINGTON V.
FIRST NATIONAL BANK, 198 U.S. 100, 112; HAWLEY V. MALDEN, 232 U.S. 1,
12; ROGERS V. HENNEPIN COUNTY, 240 U.S. 184, 191; RHODE ISLAND HOSPITAL
TRUST CO. V. DOUGHTON, 270 U.S. 69, 81. 

FN12  STOCKHOLDERS BANK V. SUPERVISORS, 88 VA. 293; 13 S.E. 407;
SCANDINAVIAN-AMERICAN BANK V. PIERCE COUNTY, 20 WASH. 155; 55 PAC. 40;
STATE V. TRAVELERS INSURANCE CO., 70 CONN. 590; 40 ATL. 465; ST. ALBANS
V. NATIONAL CAR CO., 57 VT. 68; KOOCHICHING CO. V. MITCHELL, 186 IOWA
1216; 173 N.W. 151. 

FN13  FIRST BANK STOCK CORP. V. MINNESOTA, 301 U.S. 234. 
..END :




UNITED STATES V. ANDREWS, 302 U.S. 517 


NO. 48.  ARGUED DECEMBER 8, 9, 1937.  - DECIDED JANUARY 3, 1938.  - 84
CT. CLS. 460 - 17 F.SUPP.  980, REVERSED. 


1.  THE TAXPAYER MADE TIMELY CLAIM FOR OVERPAYMENT OF INCOME TAX DUE
TO FAILURE IN THE RETURN TO DEDUCT FOR LOSS ON WORTHLESS SHARES OF
CERTAIN CORPORATIONS.  AFTER EXPIRATION OF THE TWO YEAR LIMITATION
(REVENUE ACT OF 1928), HE SOUGHT TO AMEND BY INCLUDING ANOTHER
OVERPAYMENT FOR THE SAME YEAR WHICH RESULTED FROM RETURNING AS
DIVIDENDS PAYMENTS RECEIVED FROM ANOTHER CORPORATION, WHICH WERE NOT
DIVIDENDS AND SHOULD HAVE BEEN REPORTED AS GIVING RISE TO A CAPITAL
GAIN, OF LESS AMOUNT.  HELD: 

(1)  THAT THE SECOND CLAIM WAS NOT PROPERLY AN AMENDMENT OF THE
FIRST, BUT A SEPARATE CLAIM ON A NEW AND UNRELATED GROUND, AND WAS
BARRED BY THE STATUTE.  P. 520. 

(2)  THE FACT THAT THE FIRST CLAIM, THOUGH FOR A SPECIFIC
TRANSACTION, CONTAINED ALSO A "GENERAL RELIEF" DEMAND FOR ANY OTHER OR
GREATER SUM WHICH MIGHT BE FOUND DUE TO THE TAXPAYER, COULD NOT JUSTIFY
THE AMENDMENT.  P. 524. 

(3)  NEITHER COULD IT BE UPHELD BECAUSE THE COMMISSIONER, BEFORE THE
STATUTE RAN, HAD LEARNED FROM THE CORPORATION WHICH HAD MADE THE
PAYMENTS THAT THEY WERE NOT DIVIDENDS BUT THE PROCEEDS OF A SALE OF
SHARES OWNED BY THE TAXPAYER, AND HAD SO INFORMED THE REVENUE AGENT, IT
NOT APPEARING THAT, PRIOR TO THE ATTEMPTED AMENDMENT, THE COMMISSIONER
KNEW THAT THE TAXPAYER WAS A SHAREHOLDER IN THAT COMPANY OR KNEW THAT
THE REPORTED RECEIPT OF DIVIDENDS HAD REFERENCE TO SUCH PAYMENTS.  P.
526. 

2.  IN DECIDING WHETHER A TAX-REFUND CLAIM IS SUBJECT TO AN
AMENDMENT, THE ANALOGIES OF PLEADING ARE HELPFUL, BUT THEY WILL NOT BE
SO FOLLOWED AS TO IGNORE THE NECESSITIES AND REALITIES OF
ADMINISTRATIVE PROCEDURE.  P. 523. 

A CLAIM WHICH DEMANDS RELIEF UPON ONE ASSERTED FACT SITUATION, AND
ASKS AN INVESTIGATION OF THE ELEMENTS APPROPRIATE TO SUCH RELIEF, CAN
NOT BE AMENDED TO DISCARD THAT BASIS AND INVOKE ACTION REQUIRING
EXAMINATION OF MATTERS PREVIOUSLY NOT GERMANE. 

UNITED STATES V. ANDREWS, EXECUTRIX. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 664, TO REVIEW A JUDGMENT SUSTAINING A CLAIM
BASED UPON AN OVERPAYMENT OF INCOME TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE CALLED UPON TO DETERMINE WHETHER A CLAIM FOR
REFUND OF INCOME TAX, ASKING REPAYMENT OF A DEFINITE SUM UPON A
SPECIFIC GROUND, IS SUSCEPTIBLE OF UNTIMELY AMENDMENT TO RECOVER A
GREATER SUM ON A NEW AND UNRELATED GROUND. 

THE RESPONDENT, ON BEHALF OF THE ESTATE SHE REPRESENTED, PAID THE
INCOME TAX SHOWN TO BE DUE BY HER RETURN, WHICH EXHIBITED AN ITEM OF
GROSS INCOME OF $110,891 AS "DIVIDENDS FROM DOMESTIC CORPORATIONS."  OF
THIS TOTAL $36,750 WAS ERRONEOUSLY REPORTED AS DIVIDENDS FROM THE M.A.
HANNA COMPANY.  THIS AMOUNT WAS PAID HER PURSUANT TO A RECAPITALIZATION
OF THE COMPANY IN WHICH THE ESTATE OWNED PREFERRED STOCK AND, INSTEAD
OF BEING RETURNED AS A DIVIDEND, SHOULD HAVE BEEN TREATED AS GIVING
RISE TO A CAPITAL GAIN OF $7,411.50. 

IN DECEMBER 1931 THE RESPONDENT WAS ADVISED BY AN INTERNAL REVENUE
AGENT THAT HER RETURN, REPORTING THE RECEIPT AS A DIVIDEND, WAS
CONSIDERED CORRECT, SUBJECT TO THE APPROVAL OF THE BUREAU IN
WASHINGTON, AND THAT IF LATER INFORMATION SHOULD INDICATE A MATERIAL
CHANGE IN THE AMOUNT OF TAX THE STATUTES WOULD REQUIRE A
REDETERMINATION OF TAX LIABILITY.  OCTOBER 6, 1932, AS A RESULT OF
CONFERENCES WITH REPRESENTATIVES OF THE HANNA COMPANY, THE COMMISSIONER
OF INTERNAL REVENUE ADVISED THE AGENT IN CHARGE AT CLEVELAND, OHIO,
THAT THE CASH RECEIVED BY PREFERRED STOCKHOLDERS IN THE
RECAPITALIZATION OF THE COMPANY REPRESENTED PROCEEDS FROM A SALE AND
THAT GAIN OR LOSS THEREFROM SHOULD BE DETERMINED UPON THE BASIS OF THE
COST OF THE ORIGINAL STOCK.  THE RESPONDENT WAS NOT NOTIFIED OF THE
RULING UNTIL AUGUST 22, 1934. 

FEBRUARY 1, 1933, RESPONDENT FILED A CLAIM FOR THE REFUND OF $995.52,
BASED UPON AN ALLEGED LOSS IN THE TAXABLE YEAR DUE TO THE WORTHLESSNESS
OF STOCKS OF TWO CORPORATIONS.  CONSIDERATION AND ACTION THEREON WERE
DELAYED PENDING THE OUTCOME OF LITIGATION WHICH WOULD AFFECT THE
SOUNDNESS OF THE CLAIM.  IN 1936 THIS CLAIM WAS REJECTED IN PART BUT
ALLOWED TO THE EXTENT OF $160, WHICH WAS REFUNDED. 

JUNE 29, 1934, AFTER EXPIRATION OF THE STATUTORY PERIOD FOR FILING
REFUND CLAIMS,  FN1  THE RESPONDENT PRESENTED A CLAIM FOR $6,454.09 IN
WHICH SHE STATED THAT IT WAS "FILED AS AN AMENDMENT AND AMPLIFICATION
OF CLAIM FOR REFUND FILED FEBRUARY 1, 1933" AND ASSERTED THAT THE SUM
OF $36,750 REPORTED AS A DIVIDEND WAS NOT SUCH BUT REPRESENTED THE
PROCEEDS OF SALE OF STOCK OF THE HANNA COMPANY AT A PROFIT OF $7,411.50
AND THAT THE ERROR IN THE RETURN RESULTED IN AN OVERPAYMENT OF
$6,454.09. 

NOVEMBER 2, 1935, THE COMMISSIONER ADVISED THE RESPONDENT THAT, WHILE
AN OVERPAYMENT HAD BEEN MADE, A REFUND WOULD BE DENIED BECAUSE THE
CLAIM OF JUNE 1934 WAS WHOLLY UNRELATED TO THAT OF FEBRUARY 1, 1933,
BEING AN INDEPENDENT DEMAND BASED UPON AN ENTIRELY DIFFERENT GROUND. 
PURSUANT TO THE COMMISSIONER'S HOLDING THAT THE LATTER CLAIM WAS NOT
FILED WITHIN THE PERIOD PRESCRIBED BY LAW AND, THEREFORE, COULD NOT BE
ALLOWED, OFFICIAL NOTICE OF REJECTION WAS MAILED DECEMBER 16, 1935. 
THE RESPONDENT BROUGHT SUIT IN THE COURT OF CLAIMS WHICH GAVE JUDGMENT
FOR HER IN THE AMOUNT OF $5,536.97.  FN2 

UPON PETITIONER'S REPRESENTATION THAT THE DECISION IS IN CONFLICT
WITH DECISIONS OF THIS COURT AND OF TWO CIRCUIT COURTS OF APPEALS WE
GRANTED THE WRIT OF CERTIORARI.  WE HOLD THAT THE SO-CALLED AMENDMENT
WAS IN FACT A NEW CLAIM AND ITS ALLOWANCE WAS BARRED BY THE STATUTORY
PROVISION LIMITING THE TIME FOR PRESENTATION OF CLAIMS FOR REFUND. 

NOTWITHSTANDING THE RELIANCE OF EACH OF THE PARTIES ON RECENT
DECISIONS OF THIS COURT NONE OF THEM RULES THE PRECISE QUESTION NOW
PRESENTED.  THEY POINT THE WAY, HOWEVER, TO A CORRECT DECISION. 

IN UNITED STATES V. MEMPHIS COTTON OIL CO., 288 U.S. 62, THE CLAIM
MERELY STATED THAT THERE HAD BEEN AN ERRONEOUS OVERPAYMENT THE AMOUNT
OF WHICH WAS SHOWN BY STATING THE TAXPAYER'S TRUE NET INCOME, THE TAX
DUE THEREON, AND THE AMOUNT PREVIOUSLY PAID.  THE CLAIM ASKED REPAYMENT
OF THE DIFFERENCE OR ANY GREATER SUM WHICH MIGHT BE FOUND TO BE DUE. 
UPON THE FOOTING OF THIS GENERAL CLAIM A COMPLETE AUDIT OF THE
TAXPAYER'S BOOKS WAS MADE AND AN OVERPAYMENT IN EXCESS OF THE AMOUNT
CLAIMED WAS DETERMINED.  AFTER NOTIFICATION OF THIS FACT, BUT BEFORE
REJECTION, THE TAXPAYER AMENDED THE CLAIM BY MAKING IT SPECIFIC AND
SETTING FORTH THE SUPPORTING FACTS IN DETAIL.  THE AMENDMENT WAS HELD
EFFECTIVE.  FN3 

IN UNITED STATES V. FACTORS & FINANCE CO., 288 U.S. 89, ADDITIONAL
ASSESSMENTS WERE MADE SUBSEQUENT TO PAYMENT OF THE AMOUNT SHOWN TO BE
DUE BY THE RESPONDENT'S RETURN.  AFTER PAYING PART OF THE SUM SO
ASSESSED THE TAXPAYER FILED A CLAIM FOR ABATEMENT OF THE UNPAID
BALANCE.  IN CONNECTION WITH THAT CLAIM THE COMMISSIONER ORDERED A FULL
EXAMINATION OF THE TAXPAYER'S AFFAIRS, WHICH WAS MADE.  WHILE THIS
AUDIT WAS IN PROGRESS THE TAXPAYER FILED A CLAIM FOR REFUND, COUCHED IN
GENERAL TERMS, STATING THAT, AS THERE HAD BEEN NO FINAL AUDIT OF ITS
RETURN, THE PURPOSE OF THE CLAIM WAS TO SAVE THE TAXPAYER'S RIGHTS
UNDER THE STATUTES AND PERMIT THE COMMISSIONER TO REFUND ANY EXCESS
PAID BEYOND THE AMOUNT FOUND TO BE DUE.  NO STATEMENT OF GROUNDS FOR
THE CLAIM WAS INCLUDED.  AFTER THE PERIOD OF LIMITATIONS HAD EXPIRED AN
AMENDED CLAIM WAS FILED SETTING FORTH THE GROUNDS IN DETAIL AND ASKING
SPECIAL ASSESSMENT UNDER SEC. 210 OF THE REVENUE ACT OF 1917.  IN THE
INTERVAL BETWEEN THE FILING OF THE FIRST AND THE AMENDED CLAIM THE
COMMISSIONER HAD DISPOSED OF THE CLAIM FOR ABATEMENT BUT NOT OF THE
CLAIM FOR REFUND.  AFTER THE RECEIPT OF THE AMENDMENT THE COMMISSIONER
CONSIDERED THE CASE ON THE MERITS AND FOUND THAT THE TAXPAYER'S
INVESTED CAPITAL COULD NOT BE SATISFACTORILY ASCERTAINED AND THAT A
SPECIAL ASSESSMENT SHOULD HAVE BEEN MADE UNDER SEC. 210 BUT HE REJECTED
THE CLAIM ON THE GROUND THAT THE AMENDMENT WAS NOT TIMELY.  WE HELD THE
AMENDMENT PERMISSIBLE.  THE OPINION POINTS OUT THAT THE VERY GENERALITY
OF THE ORIGINAL CLAIM REQUIRED THAT THE COMMISSIONER'S AUDIT GO INTO
THE QUESTION OF INVESTED CAPITAL AND THAT, THEREFORE, THE MORE SPECIFIC
AMENDMENT CALLED ATTENTION TO NO NEW MATTER NOT COVERED BY THE
INVESTIGATION THE COMMISSIONER HAD TO MAKE IN EXAMINING THE CLAIM AS
ORIGINALLY FILED. 

IN EACH OF THESE CASES THE CLAIM FAILED TO COMPLY WITH A TREASURY
REGULATION REQUIRING THAT THE GROUNDS FOR THE RELIEF DEMANDED SHOULD BE
SET FORTH UNDER OATH AND IN DETAIL.  WE HELD THAT WHILE THE
COMMISSIONER MIGHT PROMPTLY HAVE REJECTED THE CLAIMS FOR FAILURE TO
COMPLY WITH THE REGULATION SUCH COMPLIANCE WAS A MATTER HE COULD WAIVE
AND, IF HE CONSIDERED THE MERITS, THE CLAIM WAS SUSCEPTIBLE OF ANY
AMENDMENT WHICH WOULD NOT AMOUNT, UNDER THE RULES OF PLEADING IN
ACTIONS AT LAW, TO AN ALTERATION OF THE CAUSE OF ACTION AND WOULD NOT
REQUIRE THE COMMISSIONER TO MAKE A NEW AND DIFFERENT INQUIRY THAN THAT
WHICH HE WAS CALLED UPON TO MAKE IN ORDER TO CONSIDER THE GENERAL
GROUNDS ASSERTED IN SUPPORT OF THE CLAIM AS PRESENTED. 

IN BEMIS BRO. BAG CO. V. UNITED STATES, 289 U.S. 28, THE TAXPAYER, IN
ITS ORIGINAL CLAIM FOR REFUND, REQUESTED A SPECIAL ASSESSMENT UNDER
SECS. 327 AND 328 OF THE REVENUE ACT OF 1918 AND SUBMITTED A SUPPORTING
STATEMENT AS TO ITS AFFAIRS WHEREIN IT SOUGHT RELIEF ON THREE DISTINCT
GROUNDS SPECIFIED IN THE SECTIONS IN QUESTION AND SUBMITTED FACTS AND
ARGUMENTS IN SUPPORT OF EACH OF THE GROUNDS.  TWO OF THESE GROUNDS
CALLED THE COMMISSIONER'S ATTENTION TO THE FACT THAT THE TAXPAYER'S
INVESTED CAPITAL HAD BEEN ERRONEOUSLY COMPUTED.  AFTER CONSIDERATION OF
THE CLAIM THE COMMISSIONER NOTIFIED THE TAXPAYER THAT THERE WAS NO
BASIS FOR RELIEF UNDER SEC. 327(B), WHICH FURNISHED ONE OF THE GROUNDS
PUT FORWARD BY THE TAXPAYER, BUT HE APPARENTLY OVERLOOKED THE
CIRCUMSTANCE THAT RELIEF WAS ALSO CLAIMED UNDER SUBDIVISIONS (A) AND
(C) OF THAT SECTION.  THE TAXPAYER FILED A PROTEST AND AN AMENDMENT,
WHICH MADE NO CHANGE OF ANY IMPORTANCE IN THE FACTS AND ARGUMENTS
ALREADY SUBMITTED, BUT ASKED THAT COMPUTATION OF THE TAX UNDER SEC. 328
BE GRANTED OR, IN THE ALTERNATIVE, CERTAIN ITEMS THE COMMISSIONER HAD
STRICKEN FROM INVESTED CAPITAL BE RESTORED.  SINCE THE ORIGINAL NOTICE
TO THE COMMISSIONER WAS TO THE EFFECT THAT VALUABLE ASSETS HAD BEEN
OMITTED FROM INVESTED CAPITAL IT WOULD HAVE BEEN OPEN TO THE TAXPAYER
IN THE FIRST INSTANCE TO ASK FOR RELIEF UNDER SECS. 327 AND 328 OR, IN
THE ALTERNATIVE, FOR A RECOMPUTATION OF ITS INVESTED CAPITAL IN
ACCORDANCE WITH THE FACTS SET FORTH IN THE ORIGINAL CLAIM.  THE MERE
ADDITION OF THE PRAYER FOR ALTERNATIVE RELIEF WAS NOT A DEPARTURE FROM
THE CLAIM AND DID NOT AMOUNT TO A NEW AND UNTIMELY CLAIM BUT
CONSTITUTED A PROPER AMENDMENT. 

IN UNITED STATES V. HENRY PRENTISS & CO., 288 U.S. 73, A SITUATION
MATERIALLY DIFFERING FROM THOSE INVOLVED IN THE FOREGOING CASES WAS
PRESENTED.  THERE THE TAXPAYER'S CLAIM FOR REFUND ASSERTED THAT, OWING
TO ABNORMAL CONDITIONS AFFECTING INVESTED CAPITAL AND INCOME, THERE
COULD BE NO FAIR COMPUTATION OF THE TAX BY THE APPRAISAL OF THE CASH
VALUE OF ITS PROPERTY UNDER SEC. 326 OF THE REVENUE ACT OF 1918 AND IT
SHOULD, THEREFORE, HAVE THE BENEFIT OF A SPECIAL ASSESSMENT UNDER SECS.
327 AND 328, WHICH PROVIDE FOR COMPUTATION OF THE TAX IN SUCH CASES
WITHOUT REFERENCE TO THE VALUE OF THE INVESTED CAPITAL AND FOR
DETERMINATION OF THE TAX ACCORDING TO THE RATIO WHICH THE AVERAGE TAX
OF REPRESENTATIVE CORPORATIONS ENGAGED IN A SIMILAR BUSINESS BEARS TO
THEIR AVERAGE NET INCOME.  IN RESPONSE TO THE CLAIM THE COMMISSIONER
ADVISED THE TAXPAYER THAT HE COULD NOT CONSIDER THE PROPRIETY OF A
SPECIAL ASSESSMENT UNTIL THE STATUTORY NET INCOME AND INVESTED CAPITAL
WERE DETERMINED AND ASKED THE TAXPAYER, THEREFORE, TO ACQUIESCE IN THE
NET INCOME AND INVESTED CAPITAL SHOWN IN THE REVENUE AGENT'S REPORT OR
SUBMIT ANY EXCEPTIONS IT MIGHT HAVE THERETO.  THE TAXPAYER FILED NO
SUCH EXCEPTIONS BUT APPARENTLY ACQUIESCED IN THE DETERMINATION.  THE
COMMISSIONER THEN PROCEEDED ON THE BASIS OF THE FACTS HE HAD
ASCERTAINED AND ADVISED THE TAXPAYER THE CASE WAS NOT ONE FOR SPECIAL
ASSESSMENT AND THE CLAIM WOULD BE REJECTED.  THEREAFTER, AT AN ORAL
HEARING ACCORDED BY THE COMMISSIONER BEFORE FINAL REJECTION OF THE
CLAIM, THE TAXPAYER PRESENTED AN AMENDMENT IN WHICH IT SET FORTH THAT,
IN ASCERTAINING ITS INVESTED CAPITAL, REAL ESTATE HAD BEEN UNDERVALUED
AND CERTAIN INTANGIBLES HAD BEEN IMPROPERLY EXCLUDED FROM THE
COMPUTATION.  THIS COURT HELD THAT SUCH AN AMENDMENT, FILED AFTER THE
EXPIRATION OF THE PERIOD OF LIMITATIONS, COULD NOT BE CONSIDERED,
FIRST, BECAUSE IT TOTALLY CHANGED THE TAXPAYER'S CAUSE OF ACTION, IF
THE ANALOGIES OF PLEADING WERE TO BE REGARDED, AND, SECOND, BECAUSE THE
ORIGINAL CLAIM DID NOT CHALLENGE THE COMMISSIONER'S DETERMINATION OF
INVESTED CAPITAL, AND AN AMENDMENT WHICH ATTACKED THIS DETERMINATION,
FUNDAMENTAL TO THE TAXPAYER'S CONTENTION, WAS IN EFFECT A NEW CLAIM
BASED UPON A COMPLETE REVERSAL OF THE TAXPAYER'S FORMER POSITION. 

IN ALL THESE CASES THE COURT FOUND THE ANALOGIES OF PLEADING HELPFUL
IN DECIDING WHETHER THE CLAIM WAS IN SUCH FORM AS TO BE SUBJECT TO THE
PROFFERED AMENDMENT AT A TIME WHEN A CLAIM WHOLLY NEW WOULD HAVE BEEN
BARRED; BUT THE OPINIONS POINT OUT THAT THE ANALOGY TO PLEADING AT LAW
IS NOT TO BE SO SLAVISHLY FOLLOWED AS TO IGNORE THE NECESSITIES AND
REALITIES OF ADMINISTRATIVE PROCEDURE.  WHERE A CLAIM WHICH THE
COMMISSIONER COULD HAVE REJECTED AS TOO GENERAL, AND AS OMITTING TO
SPECIFY THE MATTERS NEEDING INVESTIGATION, HAS NOT MISLED HIM BUT HAS
BEEN THE BASIS OF AN INVESTIGATION WHICH DISCLOSED FACTS NECESSARY TO
HIS ACTION IN MAKING A REFUND, AN AMENDMENT WHICH MERELY MAKES MORE
DEFINITE THE MATTERS ALREADY WITHIN HIS KNOWLEDGE, OR WHICH, IN THE
COURSE OF HIS INVESTIGATION, HE WOULD NATURALLY HAVE ASCERTAINED, IS
PERMISSIBLE.  ON THE OTHER HAND, A CLAIM WHICH DEMANDS RELIEF UPON ONE
ASSERTED FACT SITUATION, AND ASKS AN INVESTIGATION OF THE ELEMENTS
APPROPRIATE TO THE REQUESTED RELIEF, CANNOT BE AMENDED TO DISCARD THAT
BASIS AND INVOKE ACTION REQUIRING EXAMINATION OF OTHER MATTERS NOT
GERMANE TO THE FIRST CLAIM. 

WITH THESE SETTLED PRINCIPLES IN MIND WE TURN TO THE CIRCUMSTANCES
DISCLOSED IN THE PRESENT CASE.  THE CLAIM HERE WAS NOT GENERAL BUT
SPECIFIC.  IT DID NOT ASSERT GENERALLY THAT INCOME, GROSS OR NET, HAD
BEEN OVERAPPRAISED OR, GENERALLY, THAT THE TAXPAYER WAS ENTITLED TO
DEDUCTIONS NOT TAKEN OR GRANTED.  ON THE CONTRARY, IT POINTED TO TWO
SPECIFIC ITEMS OF DEDUCTION WHICH HAD NOT BEEN TAKEN AND TO WHICH THE
TAXPAYER CLAIMED TO BE ENTITLED.  IT STATED THAT DURING THE TAXABLE
YEAR THE TAXPAYER'S HOLDINGS OF STOCK IN TWO NAMED CORPORATIONS HAD
BECOME WORTHLESS, ENTAILING A DEDUCTIBLE LOSS OF $995.  WHILE THE CLAIM
ADDED THE PHRASE THAT THE TAXPAYER CLAIMED THE SUM NAMED, OR ANY
GREATER SUM WHICH MIGHT BE ASCERTAINED TO BE DUE, THIS DID NOT CALL
UPON THE COMMISSIONER TO MAKE A COMPLETE REAUDIT OF THE TAXPAYER'S
RETURN.  THE FACT THAT HE MIGHT HAVE DONE SO IS IMMATERIAL.  HE COULD
HAVE ACTED ON THE CLAIM, AS APPARENTLY HE DID, BY INVESTIGATING THE
AFFAIRS OF THE TWO CORPORATIONS.  IT WAS ASCERTAINED THAT LITIGATION
WAS IN PROCESS UPON THE OUTCOME OF WHICH WOULD DEPEND A DECISION AS TO
THE ALLEGED WORTHLESSNESS OF SOME OF THE SHARES IN QUESTION.  HE,
THEREFORE, NATURALLY POSTPONED ACTION ON THE CLAIM UNTIL THE
TERMINATION OF THAT LITIGATION.  WHILE MATTERS WERE IN THIS POSTURE,
AND AFTER THE PERIOD OF LIMITATION HAD EXPIRED, THE RESPONDENT
PRESENTED A SO-CALLED AMENDMENT OF HER CLAIM HAVING NO RELATION
WHATEVER TO THE ITEMS SET FORTH IN THE ORIGINAL CLAIM, BUT DEALING WITH
A WHOLLY DISTINCT ITEM OF $36,750 REPORTED AS DIVIDENDS RECEIVED AND
ASKING THAT IT BE ELIMINATED FROM THAT CATEGORY AND THAT THE
TRANSACTION BE RECLASSIFIED AS CAPITAL GAIN UPON A BASIS WHICH WOULD
RESULT IN A REDUCTION OF TAX BY SOME $6,000.  THIS IS NOT A CASE WHERE
THE COMMISSIONER WAIVED THE REGULATION WITH RESPECT TO THE
PARTICULARITY WITH WHICH THE GROUNDS OF THE CLAIM MUST BE SET FORTH. 
THERE WAS NO NEED FOR HIM TO DO SO.  THE CLAIM WAS NOT GENERAL LIKE
THAT IN THE MEMPHIS COTTON OIL CASE AND THE OTHERS FOLLOWING IN ITS
TRAIN.  IT WAS AS SPECIFIC AS IT COULD BE MADE AND POINTED UNERRINGLY
TO THE ITEMS THE COMMISSIONER MUST CONSIDER.  IT CALLED FOR NO GENERAL
AUDIT OF THE TAXPAYER'S AFFAIRS AND APPARENTLY NONE WAS MADE.  AN
INVESTIGATION OF THE ITEMS DESIGNATED COULD NOT HAVE THE LEAST RELATION
TO THAT ATTEMPTED TO BE OPENED IN THE UNTIMELY AMENDMENT.  THE
RESPONDENT URGES THAT THESE CONSIDERATIONS ARE OF NO LEGAL
SIGNIFICANCE, SINCE THE CLAIM NOT ONLY CALLED FOR REDRESS OF A
SPECIFIED GRIEVANCE BUT DEMANDED GENERAL RELIEF AS WELL.  SHE INSISTS
WE HAVE LIKENED A CLAIM FOR REFUND TO AN ACTION FOR MONEY HAD AND
RECEIVED AND HAVE REQUIRED THE COMMISSIONER TO ACCEPT AND ACT UPON A
BILL OF PARTICULARS FURNISHED HIM BEFORE ACTUAL REJECTION OF THE CLAIM
ALTHOUGH THE PERIOD OF LIMITATION HAS EXPIRED.  BUT, AS WE SAID IN
UNITED STATES V. HENRY PRENTISS & CO., SUPRA, P. 84, "THIS DOES NOT
MEAN THAT A PLEADER WHO ABANDONS THE COMMON COUNT AND STATES THE
PARTICULAR FACTS OUT OF WHICH HIS GRIEVANCE HAS ARISEN RETAINS
UNFETTERED FREEDOM TO CHANGE THE STATEMENT AT HIS PLEASURE." 

WERE IT NOT FOR THE PRESENCE IN THE ORIGINAL CLAIM OF THE DEMAND FOR
REFUND OF ANY OTHER OR GREATER SUM WHICH MIGHT BE FOUND DUE THE
TAXPAYER, WE THINK IT COULD NOT EVEN BE SUGGESTED THAT THE CLAIM WAS A
GENERAL ONE FOR MONEY HAD AND RECEIVED.  SAVE FOR THAT CLAUSE THE
DEMAND WAS OF A SPECIFIC AMOUNT BASED UPON A SPECIFIC TRANSACTION. 
WHETHER ADJUDICATION IN STRICT ANALOGY TO THE RULES OF PLEADING WOULD
PERMIT THE AMENDMENT WE NEED NOT DETERMINE FOR THE NECESSITIES AND
REALITIES OF ADMINISTRATIVE PROCEDURE PRECLUDE ANY SUCH RESULT.  UNITED
STATES V. HENRY PRENTISS & CO., SUPRA, P. 85.  THE VERY SPECIFICATION
OF THE ITEMS OF COMPLAINT WOULD TEND TO CONFINE THE INVESTIGATION TO
THOSE ITEMS AND THERE IS NO EVIDENCE THAT THE EXAMINATION WAS MORE
EXTENDED. 

NOR CAN THE RESPONDENT GAIN ADVANTAGE FROM THE COMMISSIONER'S RULING
COMMUNICATED TO HIS AGENT AT CLEVELAND.  THERE IS NO FINDING THAT,
PRIOR TO THE ATTEMPTED AMENDMENT, THE COMMISSIONER KNEW THE RESPONDENT
WAS A STOCKHOLDER OF THE HANNA COMPANY OR, IF HE DID, THAT HIS
ATTENTION WAS CALLED TO THE FACT THAT THE REPORTED RECEIPT OF DIVIDENDS
HAD REFERENCE TO WHAT THE TAXPAYER RECEIVED IN RESPECT OF PREFERRED
STOCK OF THAT COMPANY. 

THESE VIEWS ACCORD WITH THE DECISIONS OF TWO CIRCUIT COURTS OF
APPEAL.  FN4  THE RESPONDENT RELIES UPON TWO DECISIONS OF THE COURT OF
CLAIMS:  YOUNGSTOWN SHEET & TUBE CO. V. UNITED STATES, 7 F.SUPP.  290,
AND CON.  P. CURRAN PRINTING CO. V. UNITED STATES, 15 F.SUPP.  153.  IN
THE FIRST A CLAIM FOR ADDITIONAL DEPRECIATION DEPLETION AND
AMORTIZATION OF AN INVESTMENT IN MINING PROPERTIES WAS TIMELY MADE.  AS
A RESULT OF THIS CLAIM A GENERAL AUDIT OF THE TAXPAYER'S AFFAIRS WAS
HAD AND RESULTED IN THE DETERMINATION OF A DEFICIENCY MUCH GREATER THAN
THE AMOUNT OF REFUND CLAIMED.  UPON APPEAL TO THE BOARD OF TAX APPEALS
THE DEFICIENCY WAS SET ASIDE AND THE BOARD FOUND AN OVERASSESSMENT DUE
TO FAILURE TO ALLOW THE CLAIMED DEDUCTION AND ALSO DEDUCTIONS FOR
DEPRECIATION OF OTHER ASSETS.  THE COMMISSIONER AGREED THAT THE
OVERPAYMENT FOUND BY THE BOARD WAS CORRECT.  THEREUPON THE TAXPAYER
FILED, OUT OF TIME, AN AMENDMENT TO CLAIM ADDITIONAL SPECIFIC
DEDUCTIONS IN ACCORDANCE WITH THE FINDINGS OF THE BOARD.  THE
COMMISSIONER ALLOWED A REFUND OF THE ITEM ORIGINALLY CLAIMED BUT
REFUSED A REFUND OF THE OTHERS ON THE GROUND THAT THE AMENDMENT SOUGHT
TO INTRODUCE NEW AND DISTINCT MATTERS.  IN AN ACTION FOR RECOVERY OF
THE OVERPAYMENT FOUND BY THE BOARD, AND CLAIMED IN THE ORIGINAL AND
AMENDED CLAIMS, THE COURT OF CLAIMS GAVE JUDGMENT FOR THE TAXPAYER.  WE
EXPRESS NO OPINION AS TO WHETHER THE RESULT MAY BE SUSTAINED BY THE
FACT THAT WHILE THE ORIGINAL CLAIM WAS PENDING THE COMMISSIONER WAS
FULLY APPRISED OF THE ITEMS OF DEDUCTION ULTIMATELY CLAIMED IN THE
AMENDMENT BY TWO COMPLETE AUDITS OF THE TAXPAYER'S AFFAIRS AND
ACCOUNTS.  A SIMILAR SITUATION IS DISCLOSED IN THE SECOND CASE.  THE
DECISIONS WERE, HOWEVER, PUT BY THE COURT OF CLAIMS UPON THE SAME
GROUND AS IN THE INSTANT CASE,  - THAT A CLAIM LIMITED TO A SPECIFIED
ITEM MIGHT BE AMENDED OUT OF TIME TO SEEK A REFUND ON ACCOUNT OF OTHER
AND UNRELATED ITEMS,  - A VIEW WE HOLD UNTENABLE. 

THE JUDGMENT IS REVERSED. 

FN1  REVENUE ACT OF 1928, C. 852, SEC. 322(B)(1), 45 STAT. 791, 861. 

FN2  84 CT. CLS. 460; 17 F.SUPP.  980. 

FN3  SEE ALSO GEORGE MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373, 384. 

FN4  BRYANT PAPER CO. V. HOLDEN, 63 F.(2D) 370; 65 F.(2D) 1012;
SWEDISH IRON & STEEL CORP. V. EDWARDS, 1 F.SUPP.  335; AFFIRMED 69
F.(2D) 1018; UNITED STATES V. RICHARDS, 79 F.(2D) 797; NEW YORK TRUST
CO. V. UNITED STATES, 87 F.(2D) 889. 
..END :




U.S. V. GARBUTT OIL CO., 302 U.S. 528 


NO. 262.  ARGUED DECEMBER 9, 1937.  - DECIDED JANUARY 3, 1938.  - 89
F.(2D) 749, REVERSED. 


1.  AN OIL OPERATING COMPANY MADE TIMELY CLAIM FOR REFUND OF AN
ADDITIONAL INCOME TAX, BASING IT UPON THE SPECIFIC GROUNDS THAT PROPER
DEDUCTION FOR AMORTIZATION HAD NOT BEEN MADE, AND THAT, IN RESPECT OF
EXCESS PROFITS TAX, ITS INVESTED CAPITAL HAD BEEN UNDERSTATED.  WHILE
THIS CLAIM WAS PENDING, IT SOUGHT TO AMEND BY SETTING UP, AS A FURTHER
GROUND, THAT DURING THE TAX YEAR IT HAD RECEIVED NO INCOME TAXABLE,
BECAUSE ITS ENTIRE PRODUCTION OF OIL HAD BEEN DISTRIBUTED IN KIND TO
ITS LESSORS AND TO ITS SHAREHOLDERS.  HELD, NOT A PERMISSIBLE AMENDMENT
BUT A NEW CLAIM UNTIMELY FILED.  UNITED STATES V. ANDREWS, ANTE, P.
517.  P. 531. 

2.  THE COMMISSIONER OF INTERNAL REVENUE IS WITHOUT POWER TO WAIVE
THE BAR OF THE STATUTE OF LIMITATIONS AGAINST A CLAIM FOR A TAX
REFUND.  P. 533. 

UNITED STATES V. GARBUTT OIL CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 671, TO REVIEW THE REVERSAL OF A JUDGMENT FOR
THE UNITED STATES IN AN ACTION TO RECOVER AN ALLEGED OVERPAYMENT OF
INCOME TAX. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS SIMILAR TO THAT PRESENTED IN UNITED STATES
V. ANDREWS, ANTE, P. 517.  THE ACTION WAS BROUGHT BY THE RESPONDENT IN
THE DISTRICT COURT FOR SOUTHERN CALIFORNIA TO RECOVER AN ALLEGED
OVERPAYMENT OF INCOME TAXES FOR 1919.  THERE IS NO CONTROVERSY AS TO
THE FACTS FOUND BY THE TRIAL COURT.  THE RESPONDENT, A CALIFORNIA
CORPORATION, ACQUIRED A LEASE OF OIL PROPERTY OCTOBER 3, 1907.  APRIL
10, 1911, THE DIRECTORS RESOLVED THAT ALL OIL PRODUCED AFTER JANUARY 1
OF THAT YEAR SHOULD BE TRANSFERRED IN KIND TO THE LESSORS TO THE EXTENT
OF THEIR ROYALTY INTEREST AND TO THE COMPANY'S STOCKHOLDERS PRO RATA TO
THEIR RESPECTIVE HOLDINGS, SO LONG AS THE LATTER SHOULD PAY CALLS FOR
MONEY NECESSARY TO DEFRAY THE COMPANY'S EXPENSES.  THE RESOLUTION
REMAINED IN EFFECT TO AND INCLUDING THE YEAR 1919 AND DISTRIBUTION OF
ALL OIL PRODUCED WAS MADE ACCORDINGLY.  IN ITS BOOKS OF ACCOUNT AND ITS
RETURN FOR INCOME TAX THE RESPONDENT RECORDED AT MARKET VALUE THE OIL
PRODUCED AND TREATED THE DIFFERENCE BETWEEN THAT VALUE AND THE COST OF
PRODUCTION AS INCOME.  THE COMMISSIONER OF INTERNAL REVENUE FOLLOWED
THE SAME METHOD IN COMPUTING TAXABLE INCOME.  IN ITS 1919 RETURN THE
RESPONDENT DISCLOSED A NET INCOME OF $16,928.61 AND A TAX LIABILITY OF
$2,072.68 WHICH WAS PAID DURING THE YEAR 1920.  THE COMMISSIONER, AS
THE RESULT OF AN AUDIT, ASSESSED AN ADDITIONAL TAX OF $3,105.65 WHICH
WAS PAID APRIL 3, 1925. 

MARCH 30, 1929, WITHIN THE FOUR YEAR PERIOD OF LIMITATIONS PRESCRIBED
BY THE APPLICABLE STATUTE, FN1  THE RESPONDENT FILED A CLAIM FOR THE
RETURN OF THE ADDITIONAL TAX SO PAID, BASED UPON TWO GROUNDS:  FIRST,
THAT THE RESPONDENT WAS ENTITLED TO AN ADDITIONAL DEDUCTION OF $12,500
FOR THE AMORTIZATION OF THE COST OF A DRILLING CONTRACT WITH UNION OIL
COMPANY BY WHICH THE LATTER, IN CONSIDERATION OF $250,000 PAR VALUE OF
RESPONDENT'S STOCK, AGREED TO PROVIDE EXPENSES OF DEVELOPING THE LEASED
OIL PROPERTY, REIMBURSEMENT TO BE MADE ONLY OUT OF OIL PRODUCED; AND,
SECOND, THAT, IN RESPECT OF EXCESS PROFITS TAX, ITS INVESTED CAPITAL
HAD BEEN UNDERSTATED BY FAILURE TO INCLUDE THE UNRECOVERED COST OF THE
SAME CONTRACT IN THE SUM OF $109,375.  WHILE THIS CLAIM WAS PENDING,
BUT SUBSEQUENT TO THE EXPIRATION OF THE PERIOD OF LIMITATION, THE
RESPONDENT FILED A "STATEMENT OF GARBUTT OIL COMPANY  ...  FOR THE
PURPOSE OF PERFECTING AND COMPLETING CLAIM FOR REFUND COVERING ALLEGED
OVERPAYMENT OF INCOME TAX FOR THE CALENDAR YEAR 1919."  THEREIN THE
RESPONDENT ASSERTED THAT IT "NOW DEVELOPS THAT A FURTHER REASON EXISTS
IN SUPPORT OF" THE PENDING CLAIM SINCE, BY DISTRIBUTION OF OIL IN KIND,
THE RESPONDENT REALIZED NO TAXABLE INCOME DURING 1919, AND THAT "IT
THEREFORE FOLLOWS THAT EVEN THOUGH THE SPECIFIC GROUNDS SET FORTH IN
THE CLAIM FOR REFUND ARE DENIED SAID CLAIM SHOULD, NEVERTHELESS, BE
ALLOWED IN FULL," FOR THE REASONS SET FORTH IN THE STATEMENT.  REFUND
WAS DEMANDED OF THE ENTIRE TAX PAID FOR 1919($5,178.33) "OR SO MUCH
THEREOF AS IS PROPERLY REFUNDABLE WITHIN THE STATUTE OF LIMITATIONS." 
AUGUST 12, 1929, THE COMMISSIONER WROTE THE RESPONDENT, CONCERNING THE
MERITS OF THE ORIGINAL CLAIM AND THE AMENDMENT, STATING THAT A REFUND
OF $3,105.65 WOULD NOT BE ALLOWED BUT THAT A HEARING COULD BE HAD UPON
THE PROPOSED REJECTION IF REQUESTED IN WRITING.  ON OCTOBER 4, 1929, A
CONFERENCE WAS HELD BUT IT DOES NOT APPEAR WHETHER THE MERITS OF THE
AMENDMENT WERE DISCUSSED.  NOVEMBER 13, 1929, THE COMMISSIONER ADVISED
THE RESPONDENT THAT THE CLAIM WOULD BE REJECTED ON THE MERITS AND THAT
THE NEW CONTENTION EMBODIED IN THE STATEMENT FILED WOULD BE REJECTED AS
IT WAS NOT REFERRED TO IN THE TIMELY CLAIM AND WAS PRESENTED ONLY AFTER
THE EXPIRATION OF THE PERIOD OF LIMITATIONS AND AFTER THE EXPIRATION OF
THE TIME ALLOWED TO PERFECT INFORMAL CLAIMS, PURSUANT TO A TREASURY
DECISION.  FORMAL REJECTION OF THE CLAIM WAS MADE NOVEMBER 21, 1929. 

THE RESPONDENT BROUGHT SUIT FOR THE RECOVERY OF THE $3,105.65, IT
BEING ADMITTED THAT THE REMAINDER OF THE TAX PAID FOR THE YEAR 1919
COULD NOT BE RECOVERED BECAUSE NOT CLAIMED WITHIN THE FOUR YEAR PERIOD
SPECIFIED IN THE STATUTE.  AT THE TRIAL THE GROUNDS OF THE REFUND CLAIM
ORIGINALLY FILED WERE ABANDONED AND RECOVERY WAS SOUGHT UPON THE BASIS
OF THE STATEMENT FILED AFTER THE EXPIRATION OF THE STATUTORY PERIOD OF
LIMITATION.  THE COURT HELD THAT THE LATTER DID NOT CONSTITUTE AN
AMENDMENT OF THE CLAIM ORIGINALLY FILED AND CAME TOO LATE ALTHOUGH IT
ALSO FOUND THAT THE COMMISSIONER HAD CONSIDERED THE LATE CONTENTION ON
ITS MERITS.  JUDGMENT WAS ENTERED IN FAVOR OF THE UNITED STATES.  THE
CIRCUIT COURT OF APPEALS REVERSED, HOLDING THE STATEMENT FILED AS AN
AMENDMENT WAS GERMANE TO THE ORIGINAL REFUND CLAIM AND THAT BOTH WERE
GROUNDED IN SUBSTANTIALLY THE SAME FACTS.  FN2  WE GRANTED CERTIORARI
TO RESOLVE ALLEGED CONFLICT OF DECISION. 

IN VIEW OF WHAT HAS BEEN SAID IN UNITED STATES V. ANDREWS, SUPRA, IT
IS NECESSARY ONLY TO INQUIRE IN THE INSTANT CASE WHETHER THE ORIGINAL
CLAIM WAS SPECIFIC AND THE SO-CALLED AMENDMENT COMPLETELY SHIFTED TO A
TOTALLY DIFFERENT GROUND FOR REFUND. 

THE TRANSACTIONS OF THE TAXPAYER WHICH GAVE RISE TO ITS TAX LIABILITY
WERE EXCEEDINGLY SIMPLE DUE TO THE FACT THAT IT HAD RESORTED TO
DISTRIBUTION OF ALL THE OIL PRODUCED, PARTLY TO ITS LESSORS AS ROYALTY
AND PARTLY TO ITS STOCKHOLDERS IN RETURN FOR THEIR ADVANCING THE
CORPORATE EXPENSES.  IF IT WAS LIABLE FOR INCOME TAX THE METHOD OF
CALCULATION IT ADOPTED WAS APPARENTLY THE CORRECT ONE. 

CLAIM FOR REFUND WAS NOT FILED UNTIL 1929 WHEN THE STATUTE OF
LIMITATIONS HAD BARRED REFUND OF ALL PAYMENTS MADE BY THE RESPONDENT
EXCEPT THE AMOUNT OF THE ADDITIONAL ASSESSMENT PAID IN 1925.  IN AN
EFFORT TO RECOVER THAT MUCH OF THE TAX PAID FOR THE YEAR 1919 THE CLAIM
SET OUT TWO GROUNDS: FIRST, THAT A DEDUCTION OF $12,500 SHOULD BE
ALLOWED FOR AMORTIZATION OF A DRILLING CONTRACT WHICH THE COMPANY HAD
AND, SECOND, THAT ITS INVESTED CAPITAL SHOULD HAVE BEEN INCREASED BY
MORE THAN $100,000 TO EMBRACE THE UNRECOVERED COST OF THIS DRILLING
CONTRACT.  THE CLAIM DIRECTED THE COMMISSIONER'S ATTENTION TO THESE TWO
ITEMS ONLY.  IT GAVE HIM NO NOTICE THAT THE TAXPAYER CLAIMED NOT TO
HAVE BEEN IN RECEIPT OF ANY INCOME WHATEVER FOR THE TAXABLE YEAR.  THE
DOCUMENTS WOULD NOT NATURALLY SUGGEST ANY SUCH CLAIM FOR, AS IN UNITED
STATES V. HENRY PRENTISS & CO., 288 U.S. 73, THE GROUND ASSERTED IN THE
LATER DEMAND WAS TOTALLY INCONSISTENT WITH AND INVOLVED A NEGATION OF
THAT SPECIFIED IN THE CLAIM FOR REFUND.  BEFORE THE COMMISSIONER HAD
ACTED ON THE CLAIM FOR REFUND THE RESPONDENT, IN AN EFFORT TO EVIDENCE
CONTINUITY AND IDENTITY OF CLAIM, FILED ITS SO-CALLED STATEMENT
PERFECTING AND COMPLETING THE CLAIM FOR REFUND.  THIS ABANDONED THE
GROUNDS ORIGINALLY ALLEGED IN SUPPORT OF THE CLAIM.  THE POSITION TAKEN
IN THE AMENDMENT WAS THAT THE TAXPAYER HAD NO INCOME WHATEVER AND THAT
IF THE COMMISSIONER REFUSED REFUND ON THE BASIS OF A REJECTION OF THE
DEDUCTIONS CLAIMED FROM GROSS INCOME IN THE ORIGINAL DEMAND, HE SHOULD
FIND THAT THE TAXPAYER'S OPERATIONS WERE NOT PRODUCTIVE OF ANY INCOME
TO IT. 

IN DEFENSE OF THE AMENDMENT THE RESPONDENT SAYS THAT IT WAS CLAIMING
ONLY THE $3,105.65 PAID IN 1929 PURSUANT TO THE ADDITIONAL ASSESSMENT;
THAT IN NO EVENT COULD IT RECOVER THE ENTIRE TAX PAID; THAT IF THE
ORIGINAL GROUNDS FOR CLAIMING REFUND OF PAYMENT OF THE SUM IN QUESTION
HAD BEEN HELD VALID THIS WOULD HAVE BEEN SUFFICIENT TO REQUIRE THE
REFUND OF THE WHOLE OF THE SUM, AND THE AMENDED CLAIM WOULD HAVE NO
DIFFERENT RESULT.  THIS CONTENTION IS ADVANCED TO PERSUADE US THAT,
AFTER ALL, THE CAUSE OF ACTION IN THIS CASE WAS FOR THE RECOVERY OF
$3,105.65 AS MONEY HAD AND RECEIVED TO THE RESPONDENT'S USE, AND THAT,
THEREFORE, THERE IS NO DEPARTURE AND NO NEW CAUSE OF ACTION ASSERTED BY
THE AMENDMENT.  TO ADOPT THIS VIEW WOULD BE TO DISREGARD WHAT WAS SAID
IN EARLIER CASES TO THE EFFECT THAT THE ANALOGIES OF PLEADING MUST NOT
BE PRESSED TO SUCH AN EXTENT AS TO DISREGARD THE REALITIES OF
ADMINISTRATIVE PROCEDURE.  THE CLAIM AS FILED CALLED FOR NO
INVESTIGATION OF THE QUESTION WHETHER THE TAXPAYER'S TRANSACTIONS GAVE
RISE TO INCOME.  ON THE CONTRARY, THE GROUNDS ADVANCED ASSUMED THE
RECEIPT OF INCOME.  THE CLAIM BEING THUS SPECIFIC THE COMMISSIONER WAS
ENTITLED TO TAKE IT AT FACE VALUE AND TO EXAMINE ONLY THE POINTS TO
WHICH IT DIRECTED HIS ATTENTION.  IT WOULD BE TO DISREGARD THE NATURAL
COURSE OF PROCEDURE IN THE BUREAU TO SUPPOSE THAT GROUNDS THUS
SPECIFICALLY ASSERTED WOULD DIRECT ATTENTION TO ANOTHER AT WAR WITH
THEM. 

THE RESPONDENT URGES THAT ALTHOUGH THE AMENDMENT WAS NOT TIMELY, THE
COMMISSIONER, IN CONSIDERING THE MERITS OF THE POSITION TAKEN THEREIN,
WAIVED ANY OBJECTION WHICH MIGHT HAVE BEEN AVAILABLE TO HIM THAT THIS
POSITION WAS NOT DISCLOSED IN THE ORIGINAL CLAIM.  THE CONTENTION IS
BOTTOMED UPON THE FACT THAT, IN HIS LETTER OF AUGUST 12, 1929, THE
COMMISSIONER REFERS TO THE REASONS ADVANCED IN THE UNTIMELY STATEMENT. 
THE ARGUMENT CONFUSES THE POWER OF THE COMMISSIONER TO DISREGARD A
STATUTORY MANDATE WITH HIS UNDOUBTED POWER TO WAIVE THE REQUIREMENTS OF
THE TREASURY REGULATIONS.  THE DISTINCTION WAS POINTED OUT IN UNITED
STATES V. MEMPHIS COTTON OIL CO., 288 U.S. 62, 71, WHEREIN IT WAS SAID:
"THE LINE OF DIVISION MUST BE KEPT A SHARP ONE BETWEEN THE FUNCTION OF
A STATUTE REQUIRING THE PRESENTATION OF A CLAIM WITHIN A GIVEN PERIOD
OF TIME, AND THE FUNCTION OF A REGULATION MAKING PROVISION AS TO FORM. 
THE FUNCTION OF THE STATUTE, LIKE THAT OF LIMITATIONS GENERALLY, IS TO
GIVE PROTECTION AGAINST STALE DEMANDS.  THE FUNCTION OF THE REGULATION
IS TO FACILITATE RESEARCH."  IN THE CITED CASE, AND OTHERS DECIDED AT
ABOUT THE SAME TIME, WE HELD THAT, WHILE THE COMMISSIONER MIGHT HAVE
ENFORCED THE REGULATION AND REJECTED A CLAIM FOR FAILURE TO COMPLY WITH
IT IN OMITTING TO STATE WITH PARTICULARITY THE GROUNDS ON WHICH THE
CLAIM WAS BASED, HE WAS NOT BOUND TO DO SO, BUT MIGHT WAIVE THE
REQUIREMENT OF THE REGULATION AND CONSIDER A GENERAL CLAIM ON ITS
MERITS.  THIS WAS FAR FROM HOLDING THAT AFTER THE PERIOD SET BY THE
STATUTE FOR THE FILING OF CLAIMS HE HAD POWER TO ACCEPT AND ACT UPON
CLAIMS THAT COMPLIED WITH OR VIOLATED HIS REGULATIONS.  TUCKER V.
ALEXANDER, 275 U.S. 228, CITED BY THE RESPONDENT, IS CLEARLY
DISTINGUISHABLE.  THERE A TIMELY CLAIM WAS FILED AND DISALLOWED.  IT
ALLEGED TWO SPECIFIC GROUNDS FOR REFUND.  SUIT WAS BROUGHT TO RECOVER
THE ALLEGED OVERPAYMENT AND AGAIN RELIANCE WAS PLACED ON THE SAME TWO
SPECIFIC GROUNDS.  AT THE TRIAL OF THE ACTION, AND WITHIN THE PERIOD OF
LIMITATIONS, THE TAXPAYER ABANDONED THE GROUNDS ALLEGED IN ITS CLAIM
AND COMPLAINT AND ASSERTED A NEW GROUND.  COUNSEL FOR THE GOVERNMENT
STATED THAT THE NEW QUESTION BROUGHT FORWARD WAS THE ONLY ONE INVOLVED
IN THE CASE AND STIPULATED AS TO THE AMOUNT TO BE RECOVERED IF THE
TRIAL COURT SHOULD HOLD IN FAVOR OF THE TAXPAYER ON THIS NEW GROUND. 
THE COURT DID SO.  ON APPEAL THE GOVERNMENT, FOR THE FIRST TIME, RAISED
THE POINT OF THE INSUFFICIENCY OF THE CLAIM FOR REFUND, AND THE COURT
OF APPEALS HELD THAT THE NEW BASIS FOR THE CLAIM DID NOT SUSTAIN
RECOVERY BECAUSE REFERENCE HAD NOT BEEN MADE TO IT IN THE REFUND
CLAIM.  THIS COURT DECIDED THAT THERE WAS AN EXPRESS WAIVER AS TO THE
FORM AND CONTENTS OF THE CLAIM AND THAT COUNSEL REPRESENTING THE
GOVERNMENT HAD POWER, PRIOR TO THE EXPIRATION OF THE PERIOD OF
LIMITATION, TO WAIVE THE OBJECTION THAT THE SUPPOSED BASIS FOR REFUND
WAS NOT DISCLOSED IN THE CLAIM.  IN SO HOLDING THE COURT ADVERTED TO
THE FACT THAT THE COMMISSIONER WAS NOT DECEIVED OR MISLED BY THE
DEFICIENCY OF THE CLAIM AND THAT IT WAS IN THE INTEREST OF JUSTICE THAT
IN THE CIRCUMSTANCES THE CLAIMANT BE NOT REMITTED TO THE RESORT OF
FILING A NEW CLAIM AND PURSUING IT THROUGH THE BUREAU AND THE COURTS. 
THE OPINION EXPRESSLY RECOGNIZED THAT NO OFFICER OF THE GOVERNMENT HAS
POWER TO WAIVE THE STATUTE OF LIMITATIONS AND CITED, IN SUPPORT OF THE
PROPOSITION, FINN V. UNITED STATES, 123 U.S. 227, SAYING:  "SUCH
WAIVERS, IF ALLOWED, WOULD DEFEAT THE ONLY PURPOSE OF THE STATUTE AND
IMPOSE A LIABILITY UPON THE UNITED STATES WHICH OTHERWISE WOULD NOT
EXIST - CONSEQUENCES WHICH DO NOT ATTACH TO THE WAIVER HERE."  275 U.S.
232. 

THE STATEMENT FILED AFTER THE PERIOD FOR FILING CLAIMS HAD EXPIRED
WAS NOT A PERMISSIBLE AMENDMENT OF THE ORIGINAL CLAIM PRESENTED.  IT
WAS A NEW CLAIM UNTIMELY FILED AND THE COMMISSIONER WAS WITHOUT POWER,
UNDER THE STATUTE, TO CONSIDER IT. 

THE JUDGMENT IS REVERSED. 

FN1  REVENUE ACT OF 1926, C. 27, SEC. 284(A)(B)(1)(2), 44 STAT. 9,
66. 

FN2  89 F.(2D) 749. 
..END :




















UNITED STATES V. MCGOWAN, 302 U.S. 535 


NO. 138.  ARGUED DECEMBER 17, 1937.  - DECIDED JANUARY 3, 1938.  - 89
F.(2D) 201, REVERSED. 


1.  THE RENO INDIAN COLONY IS SITUATED ON LANDS OWNED BY THE UNITED
STATES WITHIN THE STATE OF NEVADA, WHICH WERE ACQUIRED BY PURCHASE FOR
THE PURPOSE OF ESTABLISHING A PERMANENT SETTLEMENT FOR NEEDY NON
RESERVATION INDIANS OF THE STATE AND FOR THE WASHOE TRIBE OF INDIANS. 
IT IS UNDER THE SUPERINTENDENCE OF THE FEDERAL GOVERNMENT.  HELD
"INDIAN COUNTRY" WITHIN THE MEANING OF 25 U.S.C. SEC. 247, SUBJECTING
TO FORFEITURE AUTOMOBILES AND OTHER VEHICLES USED IN TAKING INTOXICANTS
INTO THE "INDIAN COUNTRY."  P. 539. 

2.  THAT AN INDIAN SETTLEMENT HAS BEEN DESIGNATED BY CONGRESS AS A
"COLONY" RATHER THAN A "RESERVATION" DOES NOT PREVENT THE APPLICATION
TO IT OF A LAW RELATING TO THE "INDIAN COUNTRY."  P. 539. 

3.  CONGRESS ALONE HAS THE RIGHT TO DETERMINE THE MANNER IN WHICH THE
NATION'S GUARDIANSHIP OVER THE INDIANS SHALL BE CARRIED OUT.  P. 538. 

4.  THAT THE STATE HAS NOT RELINQUISHED JURISDICTION OVER THE AREA
OCCUPIED BY THE RENO INDIAN COLONY DOES NOT PREVENT THE APPLICATION TO
IT OF THE FEDERAL LAW FORBIDDING TAKING INTOXICANTS INTO THE "INDIAN
COUNTRY."  P. 539. 

UNITED STATES V. MCGOWAN ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, POST, P. 666, TO REVIEW A DECREE AFFIRMING A DECREE OF
THE DISTRICT COURT, 16 F.SUPP.  453, DISMISSING, IN TWO CASES
CONSOLIDATED FOR TRIAL, LIBELS SEEKING FORFEITURE OF AUTOMOBILES UNDER
U.S.C., TIT. 25, SEC. 247. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE COURT OF APPEALS AFFIRMED A DECREE OF THE DISTRICT COURT
DISMISSING LIBEL PROCEEDINGS BROUGHT BY THE UNITED STATES PRAYING
FORFEITURE OF TWO AUTOMOBILES USED TO CARRY INTOXICANTS INTO THE RENO
(NEVADA) INDIAN COLONY.  FN1  THE PROCEEDINGS WERE INSTITUTED UNDER
TITLE 25, U.S.C. SEC. 247 WHICH PROVIDES IN PART:  FN2 

"AUTOMOBILES OR ANY OTHER VEHICLES OR CONVEYANCES USED IN
INTRODUCING, OR ATTEMPTING TO INTRODUCE, INTOXICANTS INTO THE INDIAN
COUNTRY, OR WHERE THE INTRODUCTION IS PROHIBITED BY TREATY OR FEDERAL
STATUTE, WHETHER USED BY THE OWNER THEREOF OR OTHER PERSON, SHALL BE
SUBJECT TO  ... SEIZURE, LIBEL, AND FORFEITURE  ..." 

BOTH COURTS BELOW CONCLUDED THAT THE RENO INDIAN COLONY IS NOT
"INDIAN COUNTRY" WITHIN THE MEANING OF THIS STATUTE. 

THE ONLY QUESTION FOR DETERMINATION IS WHETHER THIS COLONY IS SUCH
INDIAN COUNTRY.  IN THIS INQUIRY, BOTH THE LEGISLATIVE HISTORY OF THE
TERM "INDIAN COUNTRY" AND THE TRADITIONAL POLICY OF THE UNITED STATES
IN REGULATING THE SALE OF INTOXICANTS TO INDIANS ARE IMPORTANT. 

THE RENO INDIAN COLONY IS COMPOSED OF SEVERAL HUNDRED INDIANS
RESIDING ON A TRACT OF 28.38 ACRES OF LAND OWNED BY THE UNITED STATES
AND PURCHASED OUT OF FUNDS APPROPRIATED BY CONGRESS IN 1917 FN3  AND IN
1926.  FN4  THE PURPOSE OF CONGRESS IN CREATING THIS COLONY WAS TO
PROVIDE LANDS FOR NEEDY INDIANS SCATTERED OVER THE STATE OF NEVADA, AND
TO EQUIP AND SUPERVISE THESE INDIANS IN ESTABLISHING A PERMANENT
SETTLEMENT.  FN5 

THE WORDS "INDIAN COUNTRY" HAVE APPEARED IN THE STATUTES RELATING TO
INDIANS FOR MORE THAN A CENTURY.  FN6  WE MUST CONSIDER "THE CHANGES
WHICH HAVE TAKEN PLACE IN OUR SITUATION, WITH A VIEW OF DETERMINING
FROM TIME TO TIME WHAT MUST BE REGARDED AS INDIAN COUNTRY WHERE IT IS
SPOKEN OF IN THE STATUTES."  FN7  ALSO, DUE REGARD MUST BE GIVEN TO THE
FACT THAT FROM AN EARLY PERIOD OF OUR HISTORY, THE GOVERNMENT HAS
PRESCRIBED SEVERE PENALTIES TO ENFORCE LAWS REGULATING THE SALE OF
LIQUOR ON LANDS OCCUPIED BY INDIANS UNDER GOVERNMENT SUPERVISION. 
INDIANS OF THE RENO COLONY HAVE BEEN ESTABLISHED IN HOMES UNDER THE
SUPERVISION AND GUARDIANSHIP OF THE UNITED STATES.  THE POLICY OF
CONGRESS, UNIFORMLY ENFORCED THROUGH THE DECISIONS OF THIS COURT, HAS
BEEN TO REGULATE THE LIQUOR TRAFFIC WITH INDIANS OCCUPYING SUCH A
SETTLEMENT.  FN8  THIS PROTECTION IS EXTENDED BY THE UNITED STATES
"OVER ALL DEPENDENT INDIAN COMMUNITIES WITHIN ITS BORDERS, WHETHER
WITHIN ITS ORIGINAL TERRITORY OR TERRITORY SUBSEQUENTLY ACQUIRED, AND
WHETHER WITHIN OR WITHOUT THE LIMITS OF A STATE."  FN9 

THE FUNDAMENTAL CONSIDERATION OF BOTH CONGRESS AND THE DEPARTMENT OF
THE INTERIOR IN ESTABLISHING THIS COLONY HAS BEEN THE PROTECTION OF A
DEPENDENT PEOPLE.  FN10  INDIANS IN THIS COLONY HAVE BEEN AFFORDED THE
SAME PROTECTION BY THE GOVERNMENT AS THAT GIVEN INDIANS IN OTHER
SETTLEMENTS KNOWN AS "RESERVATIONS."  CONGRESS ALONE HAS THE RIGHT TO
DETERMINE THE MANNER IN WHICH THIS COUNTRY'S GUARDIANSHIP OVER THE
INDIANS SHALL BE CARRIED OUT,  FN11  AND IT IS IMMATERIAL WHETHER
CONGRESS DESIGNATES A SETTLEMENT AS A "RESERVATION" OR "COLONY."  IN
THE CASE OF UNITED STATES V. PELICAN, 232 U.S. 442, 449, THIS COURT
SAID: 

"IN THE PRESENT CASE THE ORIGINAL RESERVATION WAS INDIAN COUNTRY
SIMPLY BECAUSE IT HAD BEEN VALIDLY SET APART FOR THE USE OF THE INDIANS
AS SUCH, UNDER THE SUPERINTENDENCE OF THE GOVERNMENT." 

THE RENO COLONY HAS BEEN VALIDLY SET APART FOR THE USE OF THE
INDIANS.  IT IS UNDER THE SUPERINTENDENCE OF THE GOVERNMENT.  THE
GOVERNMENT RETAINS TITLE TO THE LANDS WHICH IT PERMITS THE INDIANS TO
OCCUPY.  THE GOVERNMENT HAS AUTHORITY TO ENACT REGULATIONS AND
PROTECTIVE LAWS RESPECTING THIS TERRITORY."  FN12  ...  CONGRESS
POSSESSES THE BROAD POWER OF LEGISLATING FOR THE PROTECTION OF THE
INDIANS WHEREVER THEY MAY BE WITHIN THE TERRITORY OF THE UNITED STATES
..."  UNITED STATES V. RAMSEY, 271 U.S. 467, 471. 

WHEN WE VIEW THE FACTS OF THIS CASE IN THE LIGHT OF THE RELATIONSHIP
WHICH HAS LONG EXISTED BETWEEN THE GOVERNMENT AND THE INDIANS - AND
WHICH CONTINUES TO DATE  FN13  - IT IS NOT REASONABLY POSSIBLE TO DRAW
ANY DISTINCTION BETWEEN THIS INDIAN "COLONY" AND "INDIAN COUNTRY."  WE
CONCLUDE THAT SEC. 247 OF TITLE 25, SUPRA, DOES APPLY TO THE RENO
COLONY. 

2.  THE FEDERAL PROHIBITION AGAINST TAKING INTOXICANTS INTO THIS
INDIAN COLONY DOES NOT DEPRIVE THE STATE OF NEVADA OF ITS SOVEREIGNTY
OVER THE AREA IN QUESTION.  THE FEDERAL GOVERNMENT DOES NOT ASSERT
EXCLUSIVE JURISDICTION WITHIN THE COLONY.  ENACTMENTS OF THE FEDERAL
GOVERNMENT PASSED TO PROTECT AND GUARD ITS INDIAN WARDS ONLY AFFECT THE
OPERATION, WITHIN THE COLONY, OF SUCH STATE LAWS AS CONFLICT WITH THE
FEDERAL ENACTMENTS.  FN14 

UNDER THE FINDINGS MADE BY THE DISTRICT COURT IN THIS CAUSE, A DECREE
OF FORFEITURE SHOULD HAVE BEEN RENDERED AGAINST THE AUTOMOBILES
INVOLVED.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED TO THE DISTRICT COURT FOR ACTION TO BE TAKEN IN
ACCORDANCE WITH THIS OPINION.  REVERSED. 

FN1  CERTIORARI GRANTED, POST, P. 666. 

FN2  39 STAT. 970. 

FN3  39 STAT. 123, 143. 

FN4  44 STAT. 496.  THE ACT OF 1917, UNDER AUTHORITY OF WHICH 20
ACRES OF LAND WERE BOUGHT, CONTAINED ITEMS READING AS FOLLOWS: 

"FOR THE PURPOSE OF PROCURING HOME AND FARM SITES, WITH ADEQUATE
WATER RIGHTS, AND PROVIDING AGRICULTURAL EQUIPMENT AND INSTRUCTION AND
OTHER NECESSARY SUPPLIES FOR THE NONRESERVATION INDIANS IN THE STATE OF
NEVADA, $15,000  ..." 

"FOR THE PURCHASE OF LAND AND WATER RIGHTS FOR THE WASHOE TRIBE OF
INDIANS, THE TITLE TO WHICH IS TO BE HELD IN THE UNITED STATES FOR THE
BENEFIT OF SAID INDIANS, $10,000, TO BE IMMEDIATELY AVAILABLE; FOR THE
SUPPORT AND CIVILIZATION OF SAID INDIANS, $5,000; IN ALL, $15,000." 

ON RECOMMENDATION OF THE SECRETARY OF THE INTERIOR THE 1926
ADDITIONAL APPROPRIATION WAS MADE AND 8.38 ACRES WERE ADDED TO THE
COLONY TO TAKE CARE OF ADDITIONAL WORTHY INDIAN FAMILIES WHO WERE
ANXIOUS TO ESTABLISH HOMES IN THE COLONY.  SEE, HOUSE REPORT NO. 795,
69TH CONGRESS, 1ST SESSION. 

FN5  HEARINGS ON THE 1917 ACT DISCLOSED THE FOLLOWING STATEMENT BY
THE SENATOR SPONSORING THE APPROPRIATION: 

"THESE INDIANS LIVE JUST FROM HAND TO MOUTH....  THEY HAVE NO
RESERVATION TO LIVE ON, AND NO PROTECTION WHATEVER, AND IT IS AN
OUTRAGE....  IT IS USELESS TO GO AND APPROPRIATE FOR SOME PUBLIC LANDS
UNLESS YOU CAN ACQUIRE WATER RIGHTS FOR THEM....  THOSE WHO TAKE THE
MOST INTEREST IN INDIAN AFFAIRS IN OUR STATE (NEVADA) THINK THE BEST
THING TO DO IS TO PURCHASE A TRACT OF REAL AGRICULTURAL LAND, SAY, 100
ACRES, CLOSE TO CARSON CITY, WITH A WATER RIGHT, WHERE THESE INDIANS
CAN RAISE GARDEN STUFF AND CHICKENS, AND HAVE A HOME AND A MARKET FOR
THEIR PRODUCE."  HEARINGS, COMM. ON INDIAN AFFAIRS, U.S. SENATE, ON
H.R. 20150, VOL. 1, PP. 226, 227(1915). 

FN6  SEE, ACT OF JUNE 30, 1834, 4 STAT. 729, C. 161. 

FN7  EX PARTE CROW DOG, 109 U.S. 556, 561; CLAIRMONT V. UNITED
STATES, 225 U.S. 551, 557. 

FN8  THE HOUSE COMMITTEE REPORT ON THE 1917 APPROPRIATION READS IN
PART: "THE ACTIVE AND WHOLESOME POLICY OF THE PRESENT COMMISSIONER IN
PREVENTING THE SALE OF INTOXICATING LIQUORS TO THE INDIANS AND IN USING
THEIR SURPLUS OR TRIBAL FUNDS IN THE PURCHASING OF LIVE STOCK TO PUT ON
THEIR RESERVATIONS HAS BEEN A VERY LONG STEP IN THE RIGHT DIRECTION." 
HOUSE REPORT, VOLUME 1, 64TH CONGRESS, 1ST SESSION, REPORT NO. 87, PAGE
2. 

FN9  UNITED STATES V. SANDOVAL, 231 U.S. 28, 46. 

FN10  CF. UNITED STATES V. PELICAN, 232 U.S. 442, 450. 

FN11  UNITED STATES V. SANDOVAL, SUPRA. 

FN12  HALLOWELL V. UNITED STATES, 221 U.S. 317; CONSTITUTION, ART.
IV, SEC. 3, CL. 2. 

FN13  CF. ACT OF JUNE 18, 1934, C. 576, 48 STAT. 984. 

FN14  SEE, HALLOWELL V. UNITED STATES, SUPRA; SURPLUS TRADING CO. V.
COOK, 281 U.S. 647. 

MR. JUSTICE CARDOZO TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :










UNITED STATES V. RAYNOR, 302 U.S. 540 


NO. 146.  ARGUED NOVEMBER 12, 15, 1937.  - DECIDED JANUARY 3, 1938.  -
89 F.(2D) 469, REVERSED. 


1.  SECTION 150 OF THE CRIMINAL CODE PROVIDES THAT "WHOEVER SHALL HAVE
OR RETAIN IN HIS CONTROL OR POSSESSION AFTER A DISTINCTIVE PAPER HAS
BEEN ADOPTED BY THE SECRETARY OF THE TREASURY FOR THE OBLIGATIONS AND
OTHER SECURITIES OF THE UNITED STATES, ANY SIMILAR PAPER ADAPTED TO THE
MAKING OF ANY SUCH OBLIGATION OR OTHER SECURITY, EXCEPT UNDER THE
AUTHORITY OF THE SECRETARY OF THE TREASURY OR SOME OTHER PROPER OFFICER
OF THE UNITED STATES, SHALL BE FINED  ..."  ETC.  HELD, THE WORDS
"SIMILAR PAPER ADAPTED TO THE MAKING OF ANY SUCH OBLIGATION" EMBRACE
PAPER SIMILAR TO THOUGH NOT IDENTICAL WITH THE ADOPTED DISTINCTIVE
PAPER AND WHICH IS ADAPTED TO THE MAKING OF COUNTERFEITS OF GOVERNMENT
OBLIGATIONS.  PP. 545, 551. 

2.  POSSESSION BY AN UNAUTHORIZED PERSON, OF PAPER OF PRACTICALLY THE
SAME COLOR, WEIGHT, THICKNESS AND APPEARANCE OF THE DISTINCTIVE PAPER
THERETOFORE ADOPTED BY THE SECRETARY OF THE TREASURY FOR OBLIGATIONS
AND SECURITIES OF THE UNITED STATES; AND WHICH WAS CUT TO THE
DIMENSIONS OF GENUINE TWENTY DOLLAR NOTES AND RATTLED LIKE GENUINE
MONEY; AND UPON THE SURFACE OF WHICH WERE DESIGNED RED AND BLUE MARKS
CLOSELY RESEMBLING THE RED AND BLUE FIBERS EMBEDDED IN THE DISTINCTIVE
PAPER,  - HELD, A VIOLATION OF THE ACT.  PP. 542, 552. 

3.  THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF SEC. 150 OF THE
CRIMINAL CODE WHICH REQUIRES THAT THE WORDS "SIMILAR PAPER ADAPTED TO
THE MAKING OF ANY SUCH OBLIGATION" BE CONSTRUED AS APPLYING ONLY TO THE
DISTINCTIVE PAPER ADOPTED BY THE GOVERNMENT, OR TO PAPER IDENTICAL
THEREWITH.  P. 546. 

4.  A CONSTRUCTION OF A STATUTE WHICH RESULTS IN AN INCONSISTENCY IS
NOT FAVORED.  P. 547. 

5.  THE CONSTRUCTION HERE GIVEN SEC. 150 OF THE CRIMINAL CODE IS NOT
INCONSISTENT WITH A GRANT OF AUTHORITY TO CERTAIN OFFICIALS TO PERMIT
POSSESSION OF OTHERWISE ILLICIT PAPER.  P. 551. 

6.  THE DECISION OF THE CIRCUIT COURT OF APPEALS IN KRAKOWSKI V.
UNITED STATES, 161 FED. 88, HOLDING THAT THE ACT PROHIBITED POSSESSION
OF THE DISTINCTIVE PAPER ONLY, IS UNSOUND; AND THE FACT THAT CONGRESS
SUBSEQUENTLY REVISED AND CODIFIED THE CRIMINAL LAWS WITHOUT CHANGE IN
THIS PARTICULAR DOES NOT REQUIRE THAT THAT DECISION BE FOLLOWED.  P.
552. 

7.  ONE DECISION CONSTRUING A STATUTE CAN NOT BE REGARDED AS A WELL
SETTLED INTERPRETATION.  P. 552. 

8.  PENAL STATUTES NEED NOT BE GIVEN THEIR NARROWEST MEANING, BUT MAY
BE GIVEN THEIR FAIR MEANING IN ACCORD WITH THE EVIDENT LEGISLATIVE
INTENT.  P. 552. 

UNITED STATES V. RAYNOR.* 

*TOGETHER WITH NO. 147, UNITED STATES V. FOWLER, ALSO ON WRIT OF
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 667, TO REVIEW JUDGMENTS REVERSING JUDGMENTS
SENTENCING TWO DEFENDANTS AFTER CONVICTION UPON AN INDICTMENT FOR AN
OFFENSE AGAINST THE CURRENCY. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS WERE CONVICTED IN A FEDERAL DISTRICT COURT FOR VIOLATING
A PROVISION OF SEC. 150 OF THE CRIMINAL CODE,  FN1  WHICH READS: 

"WHOEVER SHALL HAVE OR RETAIN IN HIS CONTROL OR POSSESSION AFTER A
DISTINCTIVE PAPER HAS BEEN ADOPTED BY THE SECRETARY OF THE TREASURY FOR
THE OBLIGATIONS AND OTHER SECURITIES OF THE UNITED STATES, ANY SIMILAR
PAPER ADAPTED TO THE MAKING OF ANY SUCH OBLIGATION OR OTHER SECURITY,
EXCEPT UNDER THE AUTHORITY OF THE SECRETARY OF THE TREASURY OR SOME
OTHER PROPER OFFICER OF THE UNITED STATES, SHALL BE FINED NOT MORE THAN
$5,000, OR IMPRISONED NOT MORE THAN FIFTEEN YEARS, OR BOTH." 

THE CIRCUIT COURT OF APPEALS REVERSED,  FN2  HOLDING THAT THE ACT DID
NOT PROHIBIT THE POSSESSION OF ANY EXCEPT THE DISTINCTIVE PAPER ADOPTED
BY THE TREASURY, AND THAT OTHER PAPER WAS NOT PROHIBITED EVEN THOUGH IT
CLOSELY RESEMBLED THE DISTINCTIVE PAPER AND WAS WELL SUITED FOR
SUCCESSFUL COUNTERFEITING.  THE COURT ACCORDINGLY BELIEVED THAT THE
EVIDENCE DID NOT SUPPORT A CONVICTION. 

THE EVIDENCE DISCLOSED THAT: 

IN 1928, THE SECRETARY OF THE TREASURY ADOPTED A DISTINCTIVE PAPER
FOR OBLIGATIONS AND SECURITIES OF THE UNITED STATES; THIS PAPER WAS A
HIGH GRADE RAG BOND HAVING A SHARP RATTLE, VERY LITTLE GLOSS, AND SHORT
FINE SILK FIBERS DISTRIBUTED THROUGHOUT; IN 1936, RESPONDENTS HAD
POSSESSION OF PAPER OF PRACTICALLY THE SAME COLOR, WEIGHT, THICKNESS
AND APPEARANCE AS THIS DISTINCTIVE GOVERNMENT PAPER AND CUT TO THE
DIMENSIONS OF TWENTY DOLLAR GOVERNMENT OBLIGATIONS; RESPONDENTS' PAPER
RATTLED LIKE GENUINE MONEY; IT DID NOT HAVE RED AND BLUE SILK FIBERS
THROUGHOUT, BUT RED AND BLUE MARKS WERE SO EXPERTLY DESIGNED UPON ITS
SURFACE THAT ONE JUDGE, DISSENTING BELOW, AFTER A CAREFUL EXAMINATION
OF THESE MARKS WITH A MAGNIFYING GLASS, WAS STILL WHOLLY UNCERTAIN
WHETHER THEY WERE ACTUALLY WOVEN IN THE FABRIC OR WERE TRACED ON THE
SURFACE. 

DID RESPONDENTS' POSSESSION OF THIS PAPER VIOLATE THE ACT? 

THE PAPER WAS NOT ONLY PERFECTLY ADAPTED FOR COUNTERFEITING, BUT IT
IS DIFFICULT TO CONCEIVE OF ITS USE FOR ANY OTHER PURPOSE.  THE HISTORY
AND LANGUAGE OF THE ACT ARE BOTH OF IMPORTANCE IN DETERMINING WHETHER
CONGRESS INTENDED TO MAKE IT A CRIME TO POSSESS, WITHOUT AUTHORITY, SO
CLOSE AN IMITATION OF THE GENUINE PAPER ADOPTED BY THE TREASURY. 

1.  THE HISTORY OF THE LAW UNDER WHICH RESPONDENTS WERE CONVICTED
DATES FROM A SPECIAL SESSION OF CONGRESS IN 1837.  THAT CONGRESS WAS
CALLED UPON TO PASS LEGISLATION TO MEET EMERGENCY CONDITIONS FOLLOWING
CROP FAILURES, GENERAL BUSINESS DISTRESS, UNEMPLOYMENT AND DISCONTENT. 
URGED TO ACTION BY THESE CONDITIONS, CONGRESS AUTHORIZED THE ISSUE OF A
THEN UNPRECEDENTED AMOUNT OF TREASURY NOTES.  IT HAD LONG BEEN A
CRIMINAL OFFENSE TO MAKE, UTTER, OR PASS COUNTERFEIT MONEY.  REALIZING
THAT THE PROTECTION OF THE CURRENCY REQUIRED MORE STRINGENT LAWS
AGAINST COUNTERFEITERS, 

FN3  CONGRESS MADE IT A CRIME TO POSSESS ANY PLATE, BLANK NOTE, OR
PAPER TO BE USED FOR COUNTERFEITING PURPOSES.  FN4  THIS EARLY
FORERUNNER OF THE PRESENT ACT PROVIDED IN PART: 

"IF ANY PERSON  ...  SHALL HAVE IN HIS CUSTODY OR POSSESSION ANY
PAPER ADAPTED TO THE MAKING OF BANK NOTES, AND SIMILAR TO THE PAPER
UPON WHICH ANY SUCH NOTES SHALL HAVE BEEN ISSUED, WITH INTENT TO USE
SUCH PAPER  ...  IN FORGING OR COUNTERFEITING ANY OF THE NOTES ISSUED
AS AFORESAID  ... SUCH PERSON  ...  SHALL BE SENTENCED" ETC. 

THIS ORIGINAL PROVISION PROHIBITED THE POSSESSION OF "SIMILAR" PAPER
ADAPTED TO MAKING "BANK NOTES" BUT SUCH "BANK NOTES" OBVIOUSLY WERE TO
BE FORGED OR COUNTERFEIT - NOT GENUINE.  THIS FIRST ACT THUS PROHIBITED
- NOT THE GENUINE - BUT COUNTERFEIT PAPER, INTENDED TO BE MADE INTO
COUNTERFEIT OBLIGATIONS, AND ITS LANGUAGE AND MEANING WERE
SUBSTANTIALLY REENACTED IN 1847, 1857, 1860, 1861 AND 1862.  FN5 

BEGINNING DECEMBER, 1860, CONGRESS, TO MEET IMPERATIVE NEEDS, AGAIN
AUTHORIZED GREAT INCREASES IN GOVERNMENT OBLIGATIONS.  BY JULY, 1862,
NEW ISSUES OF CURRENCY AND UNSETTLED CONDITIONS HAD SO STIMULATED
COUNTERFEITING THAT CONGRESS MADE SPECIAL FUNDS AVAILABLE TO DETECT AND
PUNISH THOSE GUILTY OF THE CRIME.  FN6  SUCH ACTION PROVED INADEQUATE
TO CURB COUNTERFEITERS, AND IN 1863, CONGRESS REENACTED, STRENGTHENED
AND STRONGLY REINFORCED THE 1837 PROHIBITION AGAINST POSSESSION OF
PAPER FOR COUNTERFEITING.  FN7  THE 1863 LAW MADE IT A CRIME TO
"IMITATE, COUNTERFEIT, MAKE, OR SELL ANY PAPER SUCH AS THAT USED, OR
PROVIDED TO BE USED, FOR THE FRACTIONAL NOTES."  ALTHOUGH THE LAW HAD
PROHIBITED THE POSSESSION OF PAPER IMITATING THE GENUINE SINCE 1837,
THIS 1863 AMENDMENT STRUCK VIGOROUSLY AT ALL WHO IN ANY MANNER
TRAFFICKED IN SUCH IMITATION PAPER. 

BY JULY, 1864, THE GOVERNMENT HAD OUTSTANDING APPROXIMATELY TWO
BILLION DOLLARS IN WAR OBLIGATIONS, AND THE COUNTERFEITER HAD BECOME A
STILL GREATER PUBLIC ENEMY.  UNDER THESE CIRCUMSTANCES, WITH MORE
CURRENCY TO BE ISSUED, AND THE NECESSITY FOR PROTECTION FROM
COUNTERFEITERS GREATLY ACCENTUATED, CONGRESS ONCE MORE REENACTED THE
1837 ACT  FN8  AND MADE IT A MORE EFFECTIVE WEAPON AGAINST
COUNTERFEITERS.  FN9  THE ELEMENT OF INTENT WAS STRICKEN FROM THE
OFFENSE AND THE MERE UNAUTHORIZED POSSESSION OF IMITATION PAPER WAS
MADE A CRIME.  CONGRESS ALSO COMBINED THE PHRASE "PAPER ADAPTED TO THE
MAKING OF BANK NOTES" WITH THE PHRASE "SIMILAR TO THE PAPER UPON WHICH
ANY SUCH NOTES SHALL HAVE BEEN ISSUED."  IT IS THE PHRASE RESULTING
FROM THIS COMBINATION - "SIMILAR PAPER ADAPTED TO MAKING SUCH
OBLIGATIONS" - WHICH WAS CONSTRUED BY THE COURT BELOW TO LIMIT THE
PROHIBITED PAPER TO THE GENUINE TREASURY-ADOPTED PAPER.  THESE PHRASES,
CARRIED IN THE LAW FROM 1837 TO 1864, HAD OBVIOUSLY REFERRED TO ANY
PAPER SUITABLE FOR COUNTERFEITING.  IF THE CONGRESS OF 1864 DID INTEND
BY COMBINING THESE PHRASES TO EXEMPT FROM THE ACT ALL WHO HAD
POSSESSION OF IMITATION PAPER, IT THEREBY DELIBERATELY WEAKENED THE
CHANCE OF THE GOVERNMENT TO CONVICT AND PUNISH COUNTERFEITERS.  WE DO
NOT IMPUTE SUCH A PURPOSE TO CONGRESS.  BY THE CHANGE MADE IN 1864
CONGRESS UNDOUBTEDLY INTENDED TO MAKE THE LAW A MORE EFFECTIVE WEAPON
AGAINST COUNTERFEITERS.  INDEED, TWO DAYS AFTER THIS AMENDMENT WAS
PASSED CONGRESS AUTHORIZED A SPECIAL APPROPRIATION TO DETECT AND PUNISH
COUNTERFEITERS.  FN10  IT IS BEYOND BELIEF THAT CONGRESS INTENDED TO
RELAX THE LAW AGAINST COUNTERFEITERS AT A TIME WHEN THE NATION WAS
ENGAGED IN FINANCING A WAR.  SUCH A CONSTRUCTION WOULD BE NEITHER
LOGICAL NOR REASONABLE.  THE SECTION NOW UNDER CONSIDERATION IS PLAINLY
THE CULMINATION OF A LONG SERIES OF LEGISLATIVE ACTS, EACH OF WHICH HAS
DECLARED IT TO BE A CRIME TO HAVE POSSESSION OF PAPER, COUNTERFEITING
THE DISTINCTIVE PAPER, AND SUITABLE TO BE MADE INTO COUNTERFEIT
OBLIGATIONS.  EACH CHANGE SINCE 1837 WAS INTENDED TO MAKE THE
POSSESSION OF COUNTERFEIT PAPER MORE DANGEROUS FOR COUNTERFEITERS. 

FINDING NOTHING IN THE HISTORY OF THIS LAW WHICH SUPPORTS THE
CONSTRUCTION GIVEN IT BY THE COURT BELOW, WE PROCEED TO AN EXAMINATION
AND ANALYSIS OF THE PARTICULAR LANGUAGE BELIEVED TO JUSTIFY THAT
CONSTRUCTION. 

2.  THAT PARTICULAR LANGUAGE IS THE PHRASE "SIMILAR PAPER ADAPTED TO
MAKING SUCH OBLIGATIONS."  THE WORD "SIMILAR," AND THE PHRASE "ADAPTED
TO MAKING SUCH OBLIGATIONS OR SECURITIES," BOTH DESCRIBE THE TYPE OF
PAPER THE POSSESSION OF WHICH IS PROHIBITED.  THE DEFINITIONS GIVEN BY
THE COURT BELOW TO THIS WORD AND THIS PHRASE ARE IRRECONCILABLE. 

THAT COURT DEFINED "SIMILAR" TO MEAN "SOMEWHAT ALIKE"; "NOT EXACTLY
ALIKE"; "LIKE, BUT NOT EXACTLY THE SAME."  "SIMILAR PAPER," THUS
DEFINED, CANNOT BE IDENTICAL WITH THE DISTINCTIVE PAPER ADOPTED BY THE
GOVERNMENT, BECAUSE WHILE THE TWO PAPERS WOULD BE "SOMEWHAT ALIKE,"
THEY WOULD NOT BE "EXACTLY ALIKE" OR "EXACTLY THE SAME."  SIMILARITY IS
NOT IDENTITY, BUT RESEMBLANCE BETWEEN DIFFERENT THINGS.  FN11  UNDER
THIS DEFINITION, "SIMILAR PAPER," THE POSSESSION OF WHICH IS
PROHIBITED, IS NOT IDENTICAL WITH, BUT DIFFERS FROM THE DISTINCTIVE
PAPER. 

HOWEVER, AFTER GIVING THIS DEFINITION TO SIMILAR PAPER (WHICH IS
PROHIBITED BY THE ACT), THE COURT BELOW CONCLUDED THAT THE PHRASE
"ADAPTED TO MAKING SUCH OBLIGATIONS" LIMITS THE PROHIBITION OF THE ACT
TO THE DISTINCTIVE PAPER.  THIS CONCLUSION IS NOT CONSISTENT WITH THE
DETERMINATION THAT "SIMILAR" - ALSO DESCRIBING THE PAPER PROHIBITED -
DESIGNATES PAPER WHICH IS DIFFERENT FROM THE DISTINCTIVE PAPER.  A
CONSTRUCTION THAT CREATES AN INCONSISTENCY SHOULD BE AVOIDED WHEN A
REASONABLE INTERPRETATION CAN BE ADOPTED WHICH WILL NOT DO VIOLENCE TO
THE PLAIN WORDS OF THE ACT, AND WILL CARRY OUT THE INTENTION OF
CONGRESS.  FN12 

THERE IS NO INCONSISTENCY IN THE ACT UNLESS IT IS ASSUMED THAT THE
WORD "OBLIGATIONS" REFERS TO GENUINE OBLIGATIONS ONLY.  SINCE WORDS
THAT HAVE ONE MEANING IN A PARTICULAR CONTEXT FREQUENTLY HAVE A
DIFFERENT SIGNIFICANCE IN ANOTHER,  FN13  IT IS NECESSARY TO CONSIDER
THE CONTEXT OF THE WORDS "SUCH OBLIGATIONS," IN ORDER TO DETERMINE
THEIR SIGNIFICANCE.  THE PROVISION OF LAW HERE CONSTRUED IS THE LAST OF
SEVEN SEPARATE OFFENSES SET OUT IN ONE PARAGRAPH OF A CHAPTER OF THE
CRIMINAL CODE ENTITLED "OFFENSES AGAINST THE CURRENCY."  THE PROVISIONS
OF THIS CHAPTER WERE ENACTED TO PREVENT AND PUNISH COUNTERFEITING.  SIX
CLOSELY CONNECTED COMPANION OFFENSES ARE SET OUT IN THE SAME SECTION
WITH THE OFFENSE CHARGED AGAINST RESPONDENTS AND ALL EITHER PENALIZE
THE POSSESSION OF, OR TRAFFICKING IN, COUNTERFEIT OBLIGATIONS OR THE
MATERIALS AND DEVICES USED TO MAKE SUCH OBLIGATIONS. 

EXAMINING THE CONTEXT OF THE WORDS UNDER CONSIDERATION WE FIND THAT
THE WORD "OBLIGATIONS" APPEARS THROUGHOUT THE CHAPTER RELATING TO
OFFENSES AGAINST THE CURRENCY, AND DOES NOT ALWAYS APPLY TO "GENUINE"
OBLIGATIONS, BUT MAY, AND OFTEN DOES REFER TO "COUNTERFEIT" OR
"SPURIOUS" OBLIGATIONS.  IN ORDER TO DISTINGUISH BETWEEN COUNTERFEIT
AND GENUINE INSTRUMENTS, THE PROVISIONS IN SOME INSTANCES SPECIFICALLY
DESIGNATE NOTES AS "FALSE, FORGED OR COUNTERFEITED" AS IN SEC. 149.  ON
THE OTHER HAND, SEC. 152 MAKES IT A CRIME FOR ANY PERSON, WITHOUT
AUTHORITY, TO MAKE TOOLS TO BE USED IN PRINTING "ANY KIND OR
DESCRIPTION OF OBLIGATION OR OTHER SECURITY OF THE UNITED STATES NOW OR
HEREAFTER TO BE AUTHORIZED BY THE UNITED STATES  ..."...  ALTHOUGH
THESE QUOTED WORDS ARE "ANY KIND OF ...  OBLIGATION  ...  AUTHORIZED BY
THE UNITED STATES," THE REFERENCE IS NOT TO GENUINE OBLIGATIONS, BUT TO
COUNTERFEIT OBLIGATIONS, NOT ONLY PRINTED "WITHOUT AUTHORITY" BUT
PRINTED WITH COUNTERFEIT TOOLS MADE BY THE COUNTERFEITER.  IT IS
APPARENT FROM THE CONTEXT THAT IN THIS INSTANCE THE PHRASE "OBLIGATION
...  AUTHORIZED BY THE UNITED STATES" REFERS TO A COUNTERFEIT
OBLIGATION.  BOTH BEFORE AND SINCE THE 1837 ACT WORDS SUCH AS "BILLS,"
"NOTES" AND "OBLIGATIONS" HAVE BEEN USED AS MEANING COUNTERFEIT
INSTRUMENTS.  FN14 

THE RELATIVE POSITIONS OF THE WORDS WE ARE EXAMINING ARE IMPORTANT. 
THE FIRST WORD DESCRIBING THE PROHIBITED PAPER IS "SIMILAR."  UNLESS
THE PAPER POSSESSED IS "SIMILAR" TO THE DISTINCTIVE PAPER OF THE
GOVERNMENT, ITS POSSESSION IS NOT PROHIBITED.  GENUINE OBLIGATIONS CAN
ONLY BE MADE FROM THE GENUINE DISTINCTIVE PAPER, WITH A GENUINE DESIGN;
WITH GENUINE LITHOGRAPHING; AND WITH GENUINE SIGNATURES.  CONVERSELY,
COUNTERFEIT OBLIGATIONS WOULD BE THE RESULT OF DESIGNS, LITHOGRAPHING,
SIGNATURES OR PAPER - NOT GENUINE, BUT MERELY "SIMILAR" TO THE
GENUINE.  WHEN, THEREFORE, CONGRESS USED THE WORDS "SIMILAR PAPER" IT
INCLUDED WITHIN ITS PROHIBITION AN IMITATION OR COUNTERFEIT OF THE
GENUINE PAPER.  THE EFFECT WAS THE SAME AS THOUGH IT HAD PROHIBITED
POSSESSION OF A GOVERNMENT OBLIGATION BEARING A SIGNATURE "SIMILAR" TO
THE SIGNATURE OF THE SECRETARY OF THE TREASURY.  AFTER THE APPEARANCE
OF THE WORD "SIMILAR," SUBSEQUENT WORDS DESCRIPTIVE OF THE PROHIBITED
PAPER REQUIRE A CONSTRUCTION THAT WILL GIVE EFFECT TO THE CONGRESSIONAL
INTENT TO PROHIBIT THE POSSESSION OF PAPER WHICH IS AN IMITATION OR
COUNTERFEIT OF THAT ADOPTED BY THE GOVERNMENT. 

IN UNITED STATES V. HOWELL, 11 WALL.  432, 436, THIS COURT CONSTRUED
A SIMILAR STATUTE WHICH SO FAR AS PERTINENT PROVIDED:  "THAT IF ANY
PERSON  ...  SHALL FALSELY MAKE, FORGE, COUNTERFEIT, OR ALTER  ...  ANY
NOTE  ...  ISSUED UNDER THE AUTHORITY OF THIS ACT, OR HERETOFORE ISSUED
UNDER ACTS TO AUTHORIZE THE ISSUE OF TREASURY NOTES OR BONDS;...  OR
SHALL HAVE OR KEEP IN POSSESSION,  ... ANY SUCH FALSE, FORGED,
COUNTERFEITED, OR ALTERED NOTE  ...  (SUCH PERSON) SHALL BE  ...
GUILTY OF FELONY  ..."  ETC. 

THE DEFENDANT INDICTED UNDER THAT STATUTE URGED THAT THE WORDS "SUCH
...  NOTE" REFERRED BACK TO THOSE NOTES THAT HAD BEEN "ISSUED UNDER THE
AUTHORITY OF THIS ACT"; THAT NOTES ISSUED UNDER AUTHORITY OF THE ACT
WERE GENUINE; THAT THE ACT, THEREFORE, DID NOT PROHIBIT PASSING OR
POSSESSING A COUNTERFEIT NOTE.    THIS COURT GAVE CREDIT FOR THE
PLAUSIBILITY OF SUCH AN ARGUMENT, BUT SAID IT WAS: 

"AT WAR WITH COMMON SENSE, WHICH ASSURES US THAT THE PURPOSE OF THE
ACT WAS TO PUNISH THE MAKING OF COUNTERFEITS OF THE NOTES AND BONDS
DESCRIBED IN THE STATUTE....  WE ARE TO GIVE DUE WEIGHT TO ALL OF THE
WORDS EMPLOYED IN DESCRIBING THE INSTRUMENT,  ...  SO WE SPEAK OF A
BANK NOTE.  NOW IF THE PAPER SPOKEN OF IS A FORGERY IT IS NOT A BANK
NOTE, WHICH MEANS AN OBLIGATION OF SOME BANK TO PAY MONEY.  BUT HERE
ALSO THE MIND SUPPLIES THE ELLIPSIS WHICH GOOD USAGE ALLOWS, AND
UNDERSTANDS THAT WHAT IS MEANT IS A FORGED PAPER IN THE SIMILITUDE OF A
BANK NOTE, OR WHICH ON ITS FACE APPEARS TO BE SUCH A NOTE."  P. 436. 

SO, IN THIS CASE, PAPER WHICH WAS IN THE POSSESSION OF AN
UNAUTHORIZED PERSON AND WHICH WAS MERELY SIMILAR TO GENUINE GOVERNMENT
PAPER, COULD NOT POSSIBLY BE ADAPTED TO MAKING GENUINE GOVERNMENT
OBLIGATIONS.  IN THIS STATUTE, THE WORDS "SIMILAR PAPER ADAPTED TO
MAKING GOVERNMENT OBLIGATIONS" IMPLY THAT THE SIMILAR PAPER SHOULD BE
ADAPTED TO MAKING OBLIGATIONS THAT PURPORT TO BE GENUINE AND VALID, BUT
ARE NOT. 

THIS CONSTRUCTION IS NOT INCONSISTENT WITH A GRANT OF AUTHORITY TO
CERTAIN OFFICIALS TO PERMIT POSSESSION OF THE PROHIBITED PAPER.  IN
THIS SAME CHAPTER CONTAINING LAWS TO PROTECT THE CURRENCY OF THE UNITED
STATES THERE ARE OTHER SIMILAR GRANTS OF AUTHORITY RELATING TO
COUNTERFEITING DEVICES AND PERMISSION CAN ALSO BE GRANTED TO POSSESS
THE ACTUAL COUNTERFEITING INSTRUMENTS OR OBLIGATIONS. 

THE FACT THAT CONGRESS REVISED AND CODIFIED THE CRIMINAL LAWS AFTER
THE COURT OF APPEALS IN THE CASE OF KRAKOWSKI V. UNITED STATES, 161
FED. 88, HELD THAT THE ACT ONLY PROHIBITED POSSESSION OF THE
DISTINCTIVE PAPER DOES NOT DETRACT FROM THE SOUNDNESS OF THIS
CONCLUSION.  ONE DECISION CONSTRUING AN ACT DOES NOT APPROACH THE
DIGNITY OF A WELL SETTLED INTERPRETATION.  FN15  IT IS NOT NECESSARY TO
DETERMINE THE EFFECT OF INCLUDING THIS ACT IN THE REVISED STATUTES AND
THE CRIMINAL CODE. 

WE ARE NOT UNMINDFUL OF THE SALUTARY RULE WHICH REQUIRES STRICT
CONSTRUCTION OF PENAL STATUTES.  NO RULE OF CONSTRUCTION, HOWEVER,
REQUIRES THAT A PENAL STATUTE BE STRAINED AND DISTORTED IN ORDER TO
EXCLUDE CONDUCT CLEARLY INTENDED TO BE WITHIN ITS SCOPE - NOR DOES ANY
RULE REQUIRE THAT THE ACT BE GIVEN THE "NARROWEST MEANING."  IT IS
SUFFICIENT IF THE WORDS ARE GIVEN THEIR FAIR MEANING IN ACCORD WITH THE
EVIDENT INTENT OF CONGRESS.  FN16  CERTAINLY, IF CONGRESS HAD INTENDED
TO PROHIBIT ONLY THE POSSESSION OF DISTINCTIVE PAPER IT WOULD HAVE
SIMPLY USED THE WORDS "DISTINCTIVE PAPER" INSTEAD OF THE DISTINGUISHING
WORDS "SIMILAR PAPER ADAPTED TO THE MAKING OF ANY SUCH OBLIGATION." 

THE EVIDENCE DOES SUPPORT THE CONVICTION OF RESPONDENTS.  THE
JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF
CONVICTION IS AFFIRMED.  REVERSED. 

FN1  18 U.S.C., SEC. 264; 35 STAT. 1116. 

FN2  89 F.(2D) 469. 

FN3  COUNTERFEITING INCREASES IN PERIODS OF COMMERCIAL DISTRESS,
UNEMPLOYMENT, AND POVERTY.  EVEN PRIOR TO 1837, POVERTY CONTRIBUTED TO
OFFENSES AGAINST THE CURRENCY, SEE RE HALMAGH ACKERMAN, 5 N.Y. CITY
HALL REC. (1820) 140, AND COUNTERFEITERS KEPT PAPER IN THEIR POSSESSION
WHICH WAS USED FOR MAKING COUNTERFEIT OBLIGATIONS, RE GUY JOHNSON AND
WILLIAM JOHNSON AL. WILLIAM PRICE, JOHN STRICKLAND, AND EDWARD O'MELLY,
5 N.Y. CITY HALL REC. (1820) 138.  IN 1837 THE PROSPECT OF INCREASED
COUNTERFEITING - DUE TO DISTRESSED ECONOMIC CONDITIONS AND THE FACT
THAT NON-FEDERAL AGENCIES, BOTH PUBLIC AND PRIVATE, HAD ALREADY PUT A
LARGE AMOUNT OF PAPER IN CIRCULATION - INDICATED THE NEED RECOGNIZED BY
CONGRESS IN STRENGTHENING THE LAW.  SEE, DEWEY "FINANCIAL HISTORY OF
THE UNITED STATES," LONGMANS, GREEN & CO. (N.Y.)  1915, P. 233.  SEE
KNOX, "UNITED STATES NOTES," SCRIBNER'S (N.Y.)  1899, P. 40 ET SEQ. 

FN4  ACT OF OCTOBER 12, 1837, C. 2, SECS. 10, 11, 5 STAT. 201, 203. 

FN5  ACT OF JANUARY 28, 1847, C. 5, SECS. 9, 10, 9 STAT. 118, 120;
ACT OF DECEMBER 23, 1857, C. 1, SECS. 12, 13, 11 STAT. 257, 259; ACT OF
DECEMBER 17, 1860, C. 1, SECS. 12, 13, 12 STAT. 121, 123; ACT OF JULY
17, 1861, C. 5, SEC. 10, 12 STAT. 259, 261; ACT OF FEBRUARY 25, 1862,
C. 33, SECS. 6, 7, 12 STAT. 345, 347, 348. 

FN6  ACT OF JULY 11, 1862, C. 142, SEC. 5, 12 STAT. 532, 533. 

FN7  ACT OF MARCH 3, 1863, C. 73, SEC. 8, 12 STAT. 709, 713. 

FN8  ACT OF JUNE 30, 1864, C. 172, SECS. 10, 11, 12, 13 STAT. 218,
221, 222. 

FN9  IN THE PERIOD PRECEDING THIS ENACTMENT THERE WAS AGAIN A MARKED
INCREASE IN COUNTERFEITING.  "THERE IS REPORTED TO BE IN CIRCULATION
THROUGHOUT THE UNITED STATES, AT THE PRESENT TIME, OVER THREE THOUSAND
ISSUES OF COUNTERFEIT, SPURIOUS, RAISED AND ALTERED BANK BILLS - AN
AVERAGE OF TWO ISSUES TO EVERY BANK IN OPERATION.  SUPPOSING EACH ISSUE
WOULD AVERAGE ONE THOUSAND BILLS, WHICH IS A MODERATE CALCULATION,
THERE WOULD BE THREE MILLION COUNTERFEIT BILLS IN CIRCULATION; AND THE
CRY IS, STILL THEY COME."  REEDY, "THE UNIVERSAL BANK NOTE, DRAFT AND
CHECK DETECTOR," NEW ORLEANS, 1858, P. 15.  THIS GROWTH RESULTED IN
ALARMING INJURY TO THE CURRENCY.  "ANNUAL REPORT, ASSN. OF BANKS FOR
THE SUPPRESSION OF COUNTERFEITING," BOSTON, 1859.  AFTER 1860,
COUNTERFEITING INCREASED STEADILY.  ID. 1860; ID. 1862.  "SPECIE
PAYMENTS WERE SUSPENDED ON DECEMBER 28, 1861.  THE WAR WAS CARRIED ON
CHIEFLY BY THE USE OF TREASURY NOTES AS A CIRCULATING MEDIUM."  KNOX,
SUPRA, P. 84.  SEE HEPBURN, "A HISTORY OF CURRENCY IN THE UNITED
STATES."  MACMILLAN (N.Y.)  1915, PP. 179-204.  HOWEVER, BY OCTOBER
1862, IT WAS REPORTED THAT COUNTERFEITING WAS WIDESPREAD IN AMERICA AND
UNEASINESS WAS BEING FELT AMONG AMERICANS ABOUT THE GENUINENESS OF THE
TREASURY AND OTHER NOTES ISSUED BY THE UNITED STATES.  "THE BANKERS
MAGAZINE," LONDON, VOL. XXII, P. 615(1862).  IMPROVED MEANS OF
PREVENTING COUNTERFEITING IN ORDER TO MAINTAIN PUBLIC FAITH IN THE
CURRENCY BECAME OF GREAT IMPORTANCE. 

FN10  ACT OF JULY 2, 1864, C. 210, SEC. 3, 13 STAT. 344, 351. 

FN11  GREENLEAF V. GOODRICH, 101 U.S. 278, 282, 283.  SEE, RHODE
ISLAND HOSPITAL V. OLNEY, 16 R.I. 184; 13 ATL. 118. 

FN12  NEW LAMP CHIMNEY CO. V. ANSONIA BRASS & COPPER CO., 91 U.S.
656. 

FN13  PORTO RICO SUGAR CO. V. LORENZO, 222 U.S. 481; LAMAR V. UNITED
STATES, 240 U.S. 60; ATLANTIC CLEANERS & DYERS V. UNITED STATES, 286
U.S. 427. 

FN14  AS ILLUSTRATIVE, THE FOLLOWING EXTRACTS FROM CASES INVOLVING
OFFENSES AGAINST THE CURRENCY REFER TO FALSE OR COUNTERFEIT
INSTRUMENTS:  "WHEN A MAN HAS THE POSSESSION OF THE NUMBER OF NOTES
ALLEGED IN THE INDICTMENT, WITH AN INTENTION OF UTTERING AND PASSING
THEM FOR THE FRAUDULENT PURPOSE EXPRESSED, HE HAS DONE ALL THAT, IN
WORDS, IS NECESSARY TO CONSTITUTE THE OFFENSE."  COMMONWEALTH V. CONE,
2 MASS. 132, AT P. 134(1806); "WITHOUT MENTIONING ANY OTHER
DIFFERENCES, IT IS SUFFICIENT TO OBSERVE, THAT TO CONSTITUTE THE CRIME
DESCRIBED IN THE FORMER, THE POSSESSION OF AT LEAST TEN BILLS IS
NECESSARY  ..."  BROWN V. COMMONWEALTH, 8 MASS. 59, AT P. 71(1811);
"BOWDAIN BRASTOW, WAS INDICTED AND TRIED FOR PASSING A $10 BILL OF THE
MERCHANTS' BANK  ..."  RE HALMAGH ACKERMAN, SUPRA, P. 140(1820); "IN
THE SAME PLACE, THEY FOUND A COPPER-PLATE PRESS, A PLATE FOR ENGRAVING
$2 BILLS ON THE MERCHANTS' BANK, AND UNDER THE ROLLER OF THE PRESS, A
BILL OF THAT DESCRIPTION RECENTLY STRUCK OFF."  RE GUY JOHNSON &
WILLIAM JOHNSON AL. WILLIAM PRICE, JOHN STRICKLAND AND EDWARD O'MELLY,
SUPRA, P. 138(1820); CF. STATE V. RANDALL, 2 VT. (AIKEN) 89, (1827);
(CF. BALDWIN V. VAN DEUSEN WHERE IT IS STATED:  "IN REFERENCE TO BANK
BILLS, BILLS OF EXCHANGE, PROMISSORY NOTES AND SECURITIES FOR MONEY,
THE NATURAL AND GENERAL, IF NOT THE UNIVERSAL, ANTITHESIS OR OPPOSITE
OF GENUINE, IS 'COUNTERFEIT.'  HENCE WE SAY OF A BANK-BILL IT IS A
GENUINE BILL - I.E., NOT A COUNTERFEIT BILL  ..."  37 N.Y. 487, AT P.
493, (1868)); SEE, WIGGAINS V. UNITED STATES, 214 FED. 970, AT P. 971;
"THE BONDS ADMITTEDLY BELONGED TO THE PLAINTIFF IN ERROR."  FORLINI V.
UNITED STATES, 12 F.(2D) 631, AT P. 634; "...  APPELLANT VISITED THE
BASEMENT WHILE COUNTERFEITING OPERATIONS WERE IN PROGRESS AND
PARTICIPATED IN CONVERSATIONS AS TO THE APPEARANCE OF THE BILLS THAT
WERE BEING MADE AND THE NECESSITY OF PUTTING MORE YELLOW IN THE
COLORING"; NEBBELINK V. UNITED STATES, 66 F.(2D) 178; "ONE BILL WAS
FOUND IN HIS CLOTHES, AND HE VOLUNTEERED TO SHOW THE OFFICERS WHERE THE
REST WERE....  THE SOLE ISSUE WAS AS TO WHETHER AFTER HATLEN SHOWED HIM
THE BILLS, HE CO-OPERATED WITH HIM IN DISPOSING OF THEM  ..."  UNITED
STATES V. GATES, 67 F.(2D) 885; "THE OBLIGATIONS WERE DESCRIBED AS
UNITED STATES NOTES AND IDENTIFIED BY DENOMINATION, SERIES NUMBER, AND
PLATE NUMBERS."  SIMON V. UNITED STATES, 78 F.(2D) 454, AT P. 455.  THE
WORD "BANKNOTE" MAY MEAN - NOT A GENUINE - BUT A COUNTERFEIT
OBLIGATION.  WEBSTER'S NEW INTERNATIONAL DICTIONARY (MERRIAM, 1914) IN
DEFINING THE WORD "COUNTERFEIT" USES AS AN ILLUSTRATION, "THE BANKNOTE
WAS A COUNTERFEIT." 

FN15  FOR PROSECUTIONS UNDER THE ACT SUBSEQUENT TO THE KRAKOWSKI
CASE, SUPRA, SEE THE FOLLOWING CASES:  UNITED STATES V. ROSEN (W.D.
TEX.), FEBRUARY 14, 1931; UNITED STATES V. REGSICH AND GRUBICH (W.D.
PA.), DECEMBER 16, 1920; UNITED STATES V. MARCHETTI (N.D. OHIO), JUNE
18, 1924; UNITED STATES V. MARATEA AND PLOCKET (E.D. PA.), JANUARY 21,
1932. 

FN16  UNITED STATES V. GILES, 300 U.S. 41. 

MR. JUSTICE SUTHERLAND, DISSENTING. 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER AND I HAVE REACHED A
DIFFERENT CONCLUSION. 

THE JUDICIAL FUNCTION, AS MANY TIMES WE HAVE BEEN TOLD, DOES NOT
INCLUDE THE POWER TO AMEND A STATUTE.  AND WHILE PENAL STATUTES ARE NOT
TO BE CONSTRUED SO STRICTLY AS TO DEFEAT THE OBVIOUS INTENTION OF THE
LAWMAKER, NEVERTHELESS - "BEFORE ONE MAY BE PUNISHED, IT MUST APPEAR
THAT HIS CASE IS PLAINLY WITHIN THE STATUTE; THERE ARE NO CONSTRUCTIVE
OFFENSES."  UNITED STATES V. RESNICK, 299 U.S. 207, 210. 

WE THINK THE OPINION JUST HANDED DOWN UNDERTAKES TO IMPORT A MEANING
INTO THE PERTINENT STATUTE AT WAR WITH ITS WORDS.  THAT STATUTE
REQUIRES THE EXISTENCE OF FOUR DISTINCT ELEMENTS BEFORE THE ACCUSED CAN
BE HELD GUILTY OF VIOLATING IT:  (1) THE ADOPTION BY THE SECRETARY OF A
DISTINCTIVE PAPER FOR THE OBLIGATIONS AND OTHER SECURITIES OF THE
UNITED STATES; (2) POSSESSION OR RETENTION BY THE ACCUSED OF "SIMILAR
PAPER"; (3) THE PAPER TO BE "ADAPTED TO THE MAKING OF ANY SUCH
OBLIGATION OR OTHER SECURITY"; AND (4) THE POSSESSION OR RETENTION NOT
TO BE UNDER THE AUTHORITY OF THE SECRETARY OF THE TREASURY OR SOME
OTHER PROPER OFFICER OF THE UNITED STATES. 

THE WORD "SIMILAR," IT IS TRUE, GENERALLY INDICATES RESEMBLANCE AND
NOT EXACT IDENTITY, ALTHOUGH IN SOME CASES IT MAY MEAN "IDENTICAL" OR
"EXACTLY LIKE."  FLETCHER V. INTERSTATE CHEMICAL CO., 94 N.J.L. 332,
334; 110 ATL. 709.  THE DISTINCTION IS ILLUSTRATED BY THE DECISION OF
THE SUPREME JUDICIAL COURT OF MASSACHUSETTS IN COMMONWEALTH V. FONTAIN,
127 MASS. 452, 454, WHERE IT WAS HELD THAT THE WORDS "SIMILAR OFFENSE"
MEANT AN OFFENSE IDENTICAL IN KIND.  THE COURT SAID, "THE WORD
'SIMILAR' IS OFTEN USED TO DENOTE A PARTIAL RESEMBLANCE ONLY.  BUT IT
IS ALSO OFTEN USED TO DENOTE SAMENESS IN ALL ESSENTIAL PARTICULARS.  WE
THINK THE LEGISLATURE INTENDED TO USE IT IN THE LATTER SENSE IN THE
STATUTE WE ARE CONSIDERING."  TO DETERMINE THE PRECISE MEANING OF THE
WORD HERE, WE MUST TURN TO THE STATUTE.  THE CRUCIAL ELEMENTS THERE
DISCLOSED ARE THOSE EMBRACED BY CLAUSE (2), REQUIRING THAT THE PAPER
POSSESSED OR RETAINED BE "SIMILAR PAPER" TO THAT ADOPTED BY THE
SECRETARY, AND BY CLAUSE (3) WHICH REQUIRES THAT THE PAPER BE ADAPTED
TO THE MAKING OF "SUCH" OBLIGATION OR SECURITY.  IT IS AS NECESSARY TO
GIVE APPROPRIATE EFFECT TO THE LATTER CLAUSE AS IT IS TO THE FORMER. 
IT IS NOT ENOUGH THAT THE PAPER WOULD BE "SIMILAR" PAPER WITHIN THE
MEANING OF CLAUSE (2) STANDING ALONE; FOR IT DOES NOT STAND ALONE, BUT
IS ASSOCIATED WITH AND QUALIFIED BY CLAUSE (3).  NOTHING IS BETTER
SETTLED IN THE LAW OF STATUTORY CONSTRUCTION THAN THE RULE THAT WORDS
BY THEMSELVES MAY HAVE A PARTICULAR MEANING, BUT THAT THIS MEANING MAY
BE ENLARGED OR RESTRICTED WHEN CONSIDERED IN CONNECTION WITH OTHER
ASSOCIATED WORDS.  AND THIS IS MORE ESPECIALLY TRUE WHERE THE
ASSOCIATED WORDS SUPPLEMENT AND QUALIFY THE PRECEDING ONES AS THEY DO
HERE. 

IN ORDER TO APPLY THE RULE, WE MUST ASCERTAIN THE MEANING OF CLAUSE
(3), SINCE THAT ADDS THE REQUIREMENT THAT THE SIMILAR PAPER SHALL BE
ADAPTED TO THE MAKING OF "SUCH" OBLIGATION OR SECURITY.  THAT IS TO
SAY, WE FIRST MUST DETERMINE THE IMPORT OF THE WORD "SUCH"; AND THAT IS
DISCLOSED BY CLAUSE (1), PROVIDING FOR THE ADOPTION OF DISTINCTIVE
PAPER FOR THE OBLIGATIONS AND SECURITIES OF THE UNITED STATES.  THIS
MEANS, AND CAN ONLY MEAN, GENUINE OBLIGATIONS AND SECURITIES, SINCE IT
CANNOT BE SUPPOSED EITHER THAT THE SECRETARY, BY CLAUSE (1), IS
AUTHORIZED TO ADOPT PAPER FOR ANY THAT ARE NOT GENUINE, OR THAT HIS
AUTHORITY UNDER CLAUSE (4) IS NOT ALONE TO PERMIT POSSESSION OF PAPER
ADAPTED TO MAKING GENUINE OBLIGATIONS BUT EXTENDS TO PAPER WHICH
RESEMBLES THE ADOPTED PAPER ONLY ENOUGH TO MAKE IT ADAPTABLE FOR
COUNTERFEITING THOSE OBLIGATIONS.  IT FOLLOWS, NECESSARILY, THAT IT IS
GENUINE OBLIGATIONS AND SECURITIES AND NOT COUNTERFEITS OF THEM THAT
ARE EMBRACED BY THE WORD "SUCH" IN CLAUSE (3). 

THE PROVISIONS OF THE STATUTE WERE NOT MEANT TO COVER COUNTERFEITING,
OR PREPARATIONS ANTECEDENT TO COUNTERFEITING.  THEIR WHOLE PURPOSE WAS
TO PENALIZE POSSESSION OR RETENTION BY UNAUTHORIZED PERSONS OF THE
DISTINCTIVE KIND OF PAPER WHICH THE SECRETARY HAS ADOPTED FOR THE
MAKING OF THE OBLIGATIONS OF THE UNITED STATES; LANGUAGE WHICH, AS WE
HAVE SAID, NECESSARILY IMPORTS GENUINE OBLIGATIONS, BECAUSE IF NOT
GENUINE THEY WOULD NOT BE OBLIGATIONS OF THE UNITED STATES AT ALL. 
THE GOVERNMENT, HOWEVER, TAKES THE VIEW THAT THE STATUTE EXTENDS TO THE
POSSESSION OF PAPER SUITABLE, NOT FOR MAKING GENUINE OBLIGATIONS, BUT
FOR COUNTERFEITING THEM.  AND THIS VIEW, AS WE UNDERSTAND IT, IS ALSO
TAKEN BY THE COURT IN ITS PRESENT OPINION.  THE DIFFICULTY WITH THAT
VIEW, HOWEVER, IS THAT IT REQUIRES THE INTRODUCTION OF AN AMENDMENT SO
THAT CLAUSE (3), INSTEAD OF READING "ADAPTED TO THE MAKING OF ANY SUCH
OBLIGATION," ETC., WILL READ "ADAPTED TO THE MAKING OF COUNTERFEITS OF
ANY SUCH OBLIGATION," ETC.  SUCH AN ASSUMPTION OF LEGISLATIVE POWER IS
INADMISSIBLE.    THAT THE PAPER HERE IN QUESTION, EVEN IF IN THE HANDS
OF THE TREASURY, WAS NOT ADAPTED TO THE MAKING OF GENUINE OBLIGATIONS,
IS BEYOND DISPUTE.  THE DISTINCTIVE FEATURE OF THE PAPER ADOPTED BY THE
SECRETARY IS THE PRESENCE OF SHORT, FINE RED-AND-BLUE SILK FIBERS
IMPREGNATED IN AND DISTRIBUTED THROUGHOUT A HIGH-GRADE RAG BOND PAPER. 
THESE SILK FIBERS ARE ENTIRELY ABSENT FROM THE PAPER HERE IN QUESTION;
AND WHILE IT MIGHT HAVE BEEN USED FOR COUNTERFEITING GOVERNMENT
OBLIGATIONS, IT WAS NOT ADAPTED TO MAKING THE GENUINE ARTICLES.  THE
PRESENT DECISION BRINGS WITHIN THE REACH OF THE STATUTE EVERY STATIONER
WHO HAS IN HIS POSSESSION FOR SALE ANY HIGH-GRADE RAG BOND PAPER, IF IT
IS CAPABLE OF BEING USED FOR COUNTERFEITING GOVERNMENT OBLIGATIONS. 
FOR THE STATUTE, IT WILL BE OBSERVED, REQUIRES NO CRIMINAL INTENT, AND
NOTHING BEYOND MERE POSSESSION OR RETENTION. 

THE VIEW OF THE STATUTE WHICH WE HAVE EXPRESSED WAS ADOPTED THIRTY
YEARS AGO BY THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT IN
KRAKOWSKI V. UNITED STATES, 161 FED. 88.  IN THE MEANTIME, CONGRESS HAS
LEFT THE STATUTE IN ITS ORIGINAL FORM.  THE GOVERNMENT DID NOT SEE FIT
TO ASK REVIEW OF THE KRAKOWSKI CASE, BUT HAS APPARENTLY ACQUIESCED IN
IT FOR ALL THOSE YEARS.  THIS COURT SHOULD NOT BE EXPECTED TO DISREGARD
THE ESTABLISHED RULES OF STATUTORY CONSTRUCTION IN ORDER TO REMEDY A
SITUATION WHICH CONGRESS COULD HAVE CURED, AND MAY STILL CURE, BY A
SIMPLE ACT OF LEGISLATION.  WE THINK THE WELL-REASONED OPINION OF THE
COURT BELOW SHOULD BE ACCEPTED AND ITS JUDGMENT AFFIRMED. 
..END :



HONEYMAN V. HANAN, 302 U.S. 375 


NO. 583.  MOTION TO DISMISS.  - DECIDED DECEMBER 20, 1937.  - 275 N.Y.
382 - 9 N.E.(2D) 970, APPEAL DISMISSED. 


THAT AN ACTION TO RECOVER A MONEY JUDGMENT FOR ANY INDEBTEDNESS SECURED
BY MORTGAGE MAY NOT BE MAINTAINED AFTER THE MORTGAGED PREMISES HAVE
BEEN SOLD UNDER A JUDGMENT OF FORECLOSURE AND SALE, UNLESS THE RIGHT TO
A DEFICIENCY JUDGMENT HAS BEEN DETERMINED IN THE FORECLOSURE SUIT, DID
NOT IMPAIR THE CONTRACT RIGHTS (CONST.  ART.  I, SEC. 10) OF ONE WHO,
HAVING FORECLOSED A MORTGAGE AND BEEN DENIED A DEFICIENCY JUDGMENT, WAS
PREVENTED BY THE STATUTE FROM ENFORCING, BY SEPARATE ACTION, A BOND
SECURING THE MORTGAGE DEBT COLLATERALLY, AGAINST ONE WHO WAS PARTY TO
THE FORECLOSURE SUIT, AND AGAINST WHOM A DEFICIENCY JUDGMENT MIGHT HAVE
BEEN AWARDED IN THE FORECLOSURE SUIT, BUT AS TO WHOM IT WAS
DISCONTINUED AFTER A MOTION FOR DEFICIENCY JUDGMENT WAS DENIED.  THE
QUESTION RELATES TO THE DISTRIBUTION OF JURISDICTION IN THE STATE
COURTS.  P. 378. 

HONEYMAN V. HANAN, EXECUTOR. 

APPEAL FROM THE SUPREME COURT OF NEW YORK. 

APPEAL FROM AFFIRMANCE OF A JUDGMENT DISMISSING AN ACTION ON A BOND. 
AN EARLIER PHASE OF THE CASE IS REPORTED IN 300 U.S. 14. 

PER CURIAM. 

UPON THE PRIOR APPEAL, THE CAUSE WAS REMANDED FOR FURTHER PROCEEDINGS
TO THE END THAT UNCERTAINTY MIGHT BE REMOVED AND THAT THE PRECISE
NATURE OF THE FEDERAL QUESTION, HOW IT WAS RAISED AND THE GROUNDS OF
ITS DISPOSITION, MIGHT BE DEFINITELY SET FORTH.  300 U.S. 14, 26.  THE
COURT OF APPEALS OF THE STATE HAS HEARD REARGUMENT AND HAS DEFINED THE
FEDERAL QUESTION WHICH IT HAS DECIDED.  275 N.Y. 382; 9 N.E.(2D) 970. 
THE COURT AFFIRMED A JUDGMENT WHICH DISMISSED THE AMENDED COMPLAINT
UPON THE GROUND THAT IT DID NOT STATE FACTS SUFFICIENT TO CONSTITUTE A
CAUSE OF ACTION.  THE CASE COMES HERE ON APPEAL WHICH APPELLEE MOVES TO
DISMISS FOR THE WANT OF JURISDICTION. 

THE BOND IN SUIT IS A COLLATERAL BOND "WHICH BINDS THE OBLIGOR
INDIRECTLY TO PAY THE EXISTING MORTGAGE INDEBTEDNESS."  THE AMENDED
COMPLAINT SET FORTH THE OBLIGATION OF THE BOND AND THE BREACH OF
CONDITION.  IT ALLEGED THAT AN ACTION, TO WHICH DEFENDANT WAS A PARTY,
HAD BEEN BROUGHT TO FORECLOSE THE MORTGAGE; THAT PURSUANT TO JUDGMENT
THEREIN THE MORTGAGED PREMISES WERE SOLD AND THE PROCEEDS WERE APPLIED
ON ACCOUNT OF THE INDEBTEDNESS; AND THAT IN THE FORECLOSURE ACTION A
MOTION WAS DULY MADE FOR A DEFICIENCY JUDGMENT WHICH WAS DENIED. 
FOR ANY RESIDUE OF THE DEBT REMAINING UNSATISFIED AFTER SALE OF THE
MORTGAGED PROPERTY EXCEPT AS THEREIN PROVIDED.  SECTION 1083-B GOVERNS
ACTIONS, OTHER THAN FORECLOSURE ACTIONS, TO RECOVER JUDGMENT FOR ANY
INDEBTEDNESS SECURED SOLELY BY A MORTGAGE UPON REAL PROPERTY, "AGAINST
ANY PERSON OR CORPORATION DIRECTLY OR INDIRECTLY OR CONTINGENTLY LIABLE
THEREFOR."  THE STATE COURT HAS HELD THAT SEC. 1083-A IS INTENDED TO
PROVIDE "AN EXCLUSIVE PROCEDURE FOR THE ENTRY OF A JUDGMENT FOR ANY
RESIDUE OF A DEBT SECURED BY A MORTGAGE AFTER SALE OF THE MORTGAGED
PREMISES."  THE STATE COURT HAS ALSO RULED THAT THE DEFENDANT WAS A
PARTY TO THE FORECLOSURE ACTION AND UPON PROPER PROOF THE FINAL
JUDGMENT THEREIN "MIGHT HAVE AWARDED PAYMENT BY HIM OF THE RESIDUE OF
THE DEBT REMAINING UNSATISFIED AFTER A SALE OF THE MORTGAGED PROPERTY,
AND 'APPLICATION OF THE PROCEEDS, PURSUANT TO THE DIRECTIONS CONTAINED
THEREIN.'"  THE FORECLOSURE ACTION WAS DISCONTINUED AS TO HIM ONLY
AFTER A MOTION FOR A DEFICIENCY JUDGMENT WAS DENIED. 

APPELLANT CHALLENGES THE VALIDITY OF SECS. 1083-A AND 1083-B.  AS TO
THE FEDERAL QUESTION INVOLVED IN THE PRESENT SUIT THE STATE COURT HAS
SAID: 

"WE ARE NOT ADVISED WHETHER IN THE FORECLOSURE ACTION THE PLAINTIFF
CHALLENGED THE VALIDITY OF SECTION 1083-A.  EVEN IF THE PLAINTIFF DID
PROPERLY CHALLENGE IN THAT ACTION THE VALIDITY OF SECTION 1083-A, WE
COULD NOT UPON THIS APPEAL CONSIDER THAT CHALLENGE, FOR NO ORDER OR
JUDGMENT IN THAT ACTION IS BEFORE US FOR REVIEW.  ON THIS APPEAL WE
REVIEW ONLY THE DECISION THAT AFTER DENIAL OF A DEFICIENCY JUDGMENT IN
THE FORECLOSURE ACTION UPON A MOTION MADE PURSUANT TO SECTION 1083-A,
THE PLAINTIFF IS NOT ENTITLED TO MAINTAIN AN ACTION TO RECOVER UPON THE
BOND WHICH THE DEFENDANT'S TESTATOR, HERBERT W. HANAN, SIGNED AS
OBLIGOR.  THE CHALLENGE TO THE CONSTITUTIONAL VALIDITY OF THE STATUTE
RAISES THE CONSTITUTIONAL QUESTION WHETHER THE OBLIGATIONS OF THE
CONTRACT ARE IMPAIRED AND ARTICLE I, SECTION 10, OF THE CONSTITUTION OF
THE UNITED STATES VIOLATED BY THE PROVISIONS OF SECTIONS 1083-A AND
1083-B, WHICH PROVIDE THAT DURING THE EMERGENCY PERIOD AN ACTION TO
RECOVER A MONEY JUDGMENT FOR ANY INDEBTEDNESS SECURED BY MORTGAGE MAY
NOT BE MAINTAINED AFTER THE MORTGAGED PREMISES HAVE BEEN SOLD UNDER A
JUDGMENT OF FORECLOSURE AND SALE, UNLESS THE RIGHT TO A DEFICIENCY
JUDGMENT HAS BEEN DETERMINED IN THE FORECLOSURE ACTION.  WE DECIDED
THAT QUESTION AGAINST THE APPELLANT AFTER THE ORIGINAL ARGUMENT.  WE
ADHERE TO THAT DECISION NOW." 

IN VIEW OF THIS RULING AS TO THE EXCLUSIVE PROCEDURE FOR WHICH SEC.
1083-A PROVIDES, IT APPEARS THAT THE FEDERAL QUESTION NOW RAISED IS
SIMPLY WHETHER THE STATE LEGISLATION WHICH REQUIRES THAT THE RIGHT TO A
DEFICIENCY JUDGMENT MUST BE DETERMINED IN THE FORECLOSURE ACTION
VIOLATES THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION.  ARTICLE I,
SEC. 10.  THAT QUESTION RELATES TO THE DISTRIBUTION OF JURISDICTION IN
THE STATE COURTS.  THE FEDERAL CONSTITUTION DOES NOT UNDERTAKE TO
CONTROL THE POWER OF A STATE TO DETERMINE BY WHAT PROCESS LEGAL RIGHTS
MAY BE ASSERTED OR LEGAL OBLIGATIONS BE ENFORCED, PROVIDED THE METHOD
OF PROCEDURE GIVES REASONABLE NOTICE AND AFFORDS FAIR OPPORTUNITY TO BE
HEARD BEFORE THE ISSUES ARE DECIDED.  THE QUESTION OF THE VALIDITY OF
THE STATE LEGISLATION COULD HAVE BEEN RAISED IN THE FORECLOSURE ACTION
AND BROUGHT TO THIS COURT IN ACCORDANCE WITH THE APPLICABLE RULES. 

THE REQUIREMENT THAT THE RIGHT TO A DEFICIENCY JUDGMENT SHOULD BE
DETERMINED IN THE FORECLOSURE ACTION AS AGAINST ONE WHO WAS A PARTY TO
THAT ACTION RAISES NO SUBSTANTIAL FEDERAL QUESTION.  TERRY V. ANDERSON,
95 U.S. 628, 633; IOWA CENTRAL RY. CO. V. IOWA, 160 U.S. 389, 393;
BACKUS V. FORT STREET UNION DEPOT CO., 169 U.S. 557, 569; CINCINNATI
STREET RY. CO. V. SNELL, 193 U.S. 30, 37; GASQUET V. LAPEYRE, 242 U.S.
367, 369; GIBBES V. ZIMMERMAN, 290 U.S. 326, 332; LANSING DROP FORGE
CO. V. AMERICAN STATE BANK, 297 U.S. 697; CHISHOLM V. GILMER, 299 U.S.
99, 102.  THE APPEAL IS DISMISSED. 
..END :




NARDONE V. UNITED STATES, 302 U.S. 379 


NO. 190.  ARGUED NOVEMBER 15, 1937.  - DECIDED DECEMBER 20, 1937.  - 90
F.(2D) 630, REVERSED. 


1.  IN VIEW OF THE PROVISIONS OF SEC. 605 OF THE COMMUNICATIONS ACT OF
1934, 47 U.S.C. SEC. 605, EVIDENCE OBTAINED BY FEDERAL AGENTS BY
TAPPING TELEPHONE WIRES AND INTERCEPTING MESSAGES IS NOT ADMISSIBLE IN
A CRIMINAL TRIAL IN THE FEDERAL DISTRICT COURT.  P. 382. 

2.  IN THE PROVISION OF SEC. 605 OF THE COMMUNICATIONS ACT OF 1934,
THAT "NO PERSON NOT BEING AUTHORIZED BY THE SENDER SHALL INTERCEPT ANY
COMMUNICATION AND DIVULGE OR PUBLISH THE EXISTENCE, CONTENTS,
SUBSTANCE, PURPORT, EFFECT OR MEANING OF SUCH INTERCEPTED COMMUNICATION
TO ANY PERSON;..."  THE PHRASE "NO PERSON" EMBRACES FEDERAL AGENTS
ENGAGED IN THE DETECTION OF CRIME; AND TO "DIVULGE" AN INTERCEPTED
COMMUNICATION TO "ANY PERSON" EMBRACES TESTIMONY IN A COURT AS TO THE
CONTENTS OF SUCH A COMMUNICATION.  P. 383. 

3.  EVIDENCE IN CONGRESSIONAL COMMITTEE REPORTS INDICATING THAT THE
MAJOR PURPOSE OF THE FEDERAL COMMUNICATIONS ACT WAS THE TRANSFER OF
JURISDICTION OVER WIRE AND RADIO COMMUNICATION TO THE NEWLY CONSTITUTED
FEDERAL COMMUNICATIONS COMMISSION, AND OTHER CIRCUMSTANCES IN THE
LEGISLATIVE HISTORY OF THE ACT, HELD INSUFFICIENT TO NEGATIVE THE PLAIN
MANDATE OF THE PROVISIONS OF SEC. 605 FORBIDDING WIRE-TAPPING.  P.
382. 

4.  WHETHER WIRE-TAPPING AS AN AID IN THE DETECTION AND PUNISHMENT OF
CRIME SHOULD BE PERMITTED TO FEDERAL AGENTS IS A QUESTION OF POLICY FOR
THE DETERMINATION OF THE CONGRESS.  P. 383. 

5.  THE CANON THAT THE GENERAL WORDS OF A STATUTE DO NOT INCLUDE THE
GOVERNMENT OR AFFECT ITS RIGHTS, UNLESS THAT CONSTRUCTION BE CLEAR AND
INDISPUTABLE FROM THE LANGUAGE OF THE ACT, IS INAPPLICABLE TO THIS
CASE; BUT APPLICABLE IS THE PRINCIPLE THAT THE SOVEREIGN IS EMBRACED BY
GENERAL WORDS OF A STATUTE INTENDED TO PREVENT INJURY AND WRONG.  PP.
383-384. 

NARDONE ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, POST, P. 668, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
OF CONVICTION ON AN INDICTMENT CHARGING VIOLATION OF THE ANTI-SMUGGLING
ACT AND CONSPIRACY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE IMPORTANCE OF THE QUESTION INVOLVED,  - WHETHER, IN VIEW OF THE
PROVISIONS OF SEC. 605 OF THE COMMUNICATIONS ACT OF 1934,  FN1
EVIDENCE PROCURED BY A FEDERAL OFFICER'S TAPPING TELEPHONE WIRES AND
INTERCEPTING MESSAGES IS ADMISSIBLE IN A CRIMINAL TRIAL IN A UNITED
STATES DISTRICT COURT,  - MOVED US TO GRANT THE WRIT OF CERTIORARI. 

THE INDICTMENT UNDER WHICH THE PETITIONERS WERE TRIED, CONVICTED, AND
SENTENCED, CHARGED, IN SEPARATE COUNTS, THE SMUGGLING OF ALCOHOL,
POSSESSION AND CONCEALMENT OF THE SMUGGLED ALCOHOL, AND CONSPIRACY TO
SMUGGLE AND CONCEAL IT.  OVER THE PETITIONERS' OBJECTION AND EXCEPTION
FEDERAL AGENTS TESTIFIED TO THE SUBSTANCE OF PETITIONERS' INTERSTATE
COMMUNICATIONS OVERHEARD BY THE WITNESSES WHO HAD INTERCEPTED THE
MESSAGES BY TAPPING TELEPHONE WIRES.  THE COURT BELOW, THOUGH IT FOUND
THIS EVIDENCE CONSTITUTED SUCH A VITAL PART OF THE PROSECUTION'S PROOF
THAT ITS ADMISSION, IF ERRONEOUS, AMOUNTED TO REVERSIBLE ERROR, HELD IT
WAS PROPERLY ADMITTED AND AFFIRMED THE JUDGMENT OF CONVICTION.  FN2 

WHO, AS AN EMPLOYE, HAS TO DO WITH THE SENDING OR RECEIVING OF ANY
INTERSTATE COMMUNICATION BY WIRE SHALL DIVULGE OR PUBLISH IT OR ITS
SUBSTANCE TO ANYONE OTHER THAN THE ADDRESSEE OR HIS AUTHORIZED
REPRESENTATIVE OR TO AUTHORIZED FELLOW EMPLOYES, SAVE IN RESPONSE TO A
SUBPOENA ISSUED BY A COURT OF COMPETENT JURISDICTION OR ON DEMAND OF
OTHER LAWFUL AUTHORITY; AND "NO PERSON NOT BEING AUTHORIZED BY THE
SENDER SHALL INTERCEPT ANY COMMUNICATION AND DIVULGE OR PUBLISH THE
EXISTENCE, CONTENTS, SUBSTANCE, PURPORT, EFFECT OR MEANING OF SUCH
INTERCEPTED COMMUNICATION TO ANY PERSON;..."  SECTION 501  FN3
PENALIZES WILFUL AND KNOWING VIOLATION BY FINE AND IMPRISONMENT. 

TAKEN AT FACE VALUE THE PHRASE "NO PERSON" COMPREHENDS FEDERAL
AGENTS, AND THE BAN ON COMMUNICATION TO "ANY PERSON" BARS TESTIMONY TO
THE CONTENT OF AN INTERCEPTED MESSAGE.  SUCH AN APPLICATION OF THE
MESSAGES WITH THAT RELATING TO THOSE KNOWN TO EMPLOYES OF THE CARRIER. 
THE FORMER MAY NOT BE DIVULGED TO ANY PERSON, THE LATTER MAY BE
DIVULGED IN ANSWER TO A LAWFUL SUBPOENA. 

THE GOVERNMENT CONTENDS THAT CONGRESS DID NOT INTEND TO PROHIBIT
TAPPING WIRES TO PROCURE EVIDENCE.  IT IS SAID THAT THIS COURT, IN
OLMSTEAD V. UNITED STATES, 277 U.S. 438, HELD SUCH EVIDENCE ADMISSIBLE
AT COMMON LAW DESPITE THE FACT THAT A STATE STATUTE MADE WIRE-TAPPING A
CRIME; AND THE ARGUMENT PROCEEDS THAT SINCE THE OLMSTEAD DECISION
DEPARTMENTS OF THE FEDERAL GOVERNMENT, WITH THE KNOWLEDGE OF CONGRESS,
HAVE, TO A LIMITED EXTENT, PERMITTED THEIR AGENTS TO TAP WIRES IN AID
OF DETECTION AND CONVICTION OF CRIMINALS.  IT IS SHOWN THAT, IN SPITE
OF ITS KNOWLEDGE OF THE PRACTICE, CONGRESS REFRAINED FROM ADOPTING
LEGISLATION OUTLAWING IT, ALTHOUGH BILLS, SO PROVIDING, HAVE BEEN
INTRODUCED.  THE COMMUNICATIONS ACT, SO IT IS CLAIMED, WAS PASSED ONLY
FOR THE PURPOSE OF REENACTING THE PROVISIONS OF THE RADIO ACT OF 1927
FN4 SO AS TO MAKE IT APPLICABLE TO WIRE MESSAGES AND TO TRANSFER
JURISDICTION OVER RADIO AND WIRE COMMUNICATIONS TO THE NEWLY
CONSTITUTED FEDERAL COMMUNICATIONS COMMISSION, AND THEREFORE THE
PHRASEOLOGY OF THE STATUTE OUGHT NOT TO BE CONSTRUED AS CHANGING THE
PRACTICALLY IDENTICAL PROVISION ON THE SUBJECT WHICH WAS A PART OF THE
RADIO ACT WHEN THE OLMSTEAD CASE WAS DECIDED. 

WE NEVERTHELESS FACE THE FACT THAT THE PLAIN WORDS OF SEC. 605 FORBID
ANYONE, UNLESS AUTHORIZED BY THE SENDER, TO INTERCEPT A TELEPHONE
MESSAGE, AND DIRECT IN EQUALLY CLEAR LANGUAGE THAT "NO PERSON" SHALL
DIVULGE OR PUBLISH THE MESSAGE OR ITS SUBSTANCE TO "ANY PERSON."  TO
RECITE THE CONTENTS OF THE MESSAGE IN TESTIMONY BEFORE A COURT IS TO
DIVULGE THE MESSAGE.  THE CONCLUSION THAT THE ACT FORBIDS SUCH
TESTIMONY SEEMS TO US UNSHAKEN BY THE GOVERNMENT'S ARGUMENTS. 

TRUE IT IS THAT AFTER THIS COURT'S DECISION IN THE OLMSTEAD CASE
CONGRESSIONAL COMMITTEES INVESTIGATED THE WIRE-TAPPING ACTIVITIES OF
FEDERAL AGENTS.  OVER A PERIOD OF SEVERAL YEARS BILLS WERE INTRODUCED
TO PROHIBIT THE PRACTICE, ALL OF WHICH FAILED TO PASS.  AN ACT OF 1933
INCLUDED A CLAUSE FORBIDDING THIS METHOD OF PROCURING EVIDENCE OF
VIOLATIONS OF THE NATIONAL PROHIBITION ACT.  FN5  DURING 1932, 1933 AND
1934, HOWEVER, THERE WAS NO DISCUSSION OF THE MATTER IN CONGRESS, AND
WE ARE WITHOUT CONTEMPORARY LEGISLATIVE HISTORY RELEVANT TO THE PASSAGE
OF THE STATUTE IN QUESTION.  IT IS ALSO TRUE THAT THE COMMITTEE REPORTS
IN CONNECTION WITH THE FEDERAL COMMUNICATIONS ACT DWELL UPON THE FACT
THAT THE MAJOR PURPOSE OF THE LEGISLATION WAS THE TRANSFER OF
JURISDICTION OVER WIRE AND RADIO COMMUNICATION TO THE NEWLY CONSTITUTED
FEDERAL COMMUNICATIONS COMMISSION.  BUT THESE CIRCUMSTANCES ARE, IN OUR
OPINION, INSUFFICIENT TO OVERBEAR THE PLAIN MANDATE OF THE STATUTE. 

IT IS URGED THAT A CONSTRUCTION BE GIVEN THE SECTION WHICH WOULD
EXCLUDE FEDERAL AGENTS SINCE IT IS IMPROBABLE CONGRESS INTENDED TO
HAMPER AND IMPEDE THE ACTIVITIES OF THE GOVERNMENT IN THE DETECTION AND
PUNISHMENT OF CRIME.  THE ANSWER IS THAT THE QUESTION IS ONE OF
POLICY.  CONGRESS MAY HAVE THOUGHT IT LESS IMPORTANT THAT SOME
OFFENDERS SHOULD GO UNWHIPPED OF JUSTICE THAN THAT OFFICERS SHOULD
RESORT TO METHODS DEEMED INCONSISTENT WITH ETHICAL STANDARDS AND
DESTRUCTIVE OF PERSONAL LIBERTY.  THE SAME CONSIDERATIONS MAY WELL HAVE
MOVED THE CONGRESS TO ADOPT SEC. 605 AS EVOKED THE GUARANTY AGAINST
PRACTICES AND PROCEDURES VIOLATIVE OF PRIVACY, EMBODIED IN THE FOURTH
AND FIFTH AMENDMENTS OF THE CONSTITUTION. 

THE CANON THAT THE GENERAL WORDS OF A STATUTE DO NOT INCLUDE THE
GOVERNMENT OR AFFECT ITS RIGHTS UNLESS THE CONSTRUCTION BE CLEAR AND
INDISPUTABLE UPON THE TEXT OF THE ACT DOES NOT AID THE RESPONDENT.  THE
CASES IN WHICH IT HAS BEEN APPLIED FALL INTO TWO CLASSES.  THE FIRST IS
WHERE AN ACT, IF NOT SO LIMITED, WOULD DEPRIVE THE SOVEREIGN OF A
RECOGNIZED OR ESTABLISHED PREROGATIVE TITLE OR INTEREST.  FN6  A
CLASSICAL INSTANCE IS THE EXEMPTION OF THE STATE FROM THE OPERATION OF
GENERAL STATUTES OF LIMITATION.  FN7  THE RULE OF EXCLUSION OF THE
SOVEREIGN IS LESS STRINGENTLY APPLIED WHERE THE OPERATION OF THE LAW IS
UPON THE AGENTS OR SERVANTS OF THE GOVERNMENT RATHER THAN ON THE
SOVEREIGN ITSELF.  FN8 

THE SECOND CLASS,  - THAT WHERE PUBLIC OFFICERS ARE IMPLIEDLY
EXCLUDED FROM LANGUAGE EMBRACING ALL PERSONS,  - IS WHERE A READING
WHICH WOULD INCLUDE SUCH OFFICERS WOULD WORK OBVIOUS ABSURDITY AS, FOR
EXAMPLE, THE APPLICATION OF A SPEED LAW TO A POLICEMAN PURSUING A
CRIMINAL OR THE DRIVER OF A FIRE ENGINE RESPONDING TO AN ALARM.  FN9 

FOR YEARS CONTROVERSY HAS RAGED WITH RESPECT TO THE MORALITY OF THE
PRACTICE OF WIRE-TAPPING BY OFFICERS TO OBTAIN EVIDENCE.  IT HAS BEEN
THE VIEW OF MANY THAT THE PRACTICE INVOLVES A GRAVE WRONG.  IN THE
LIGHT OF THESE CIRCUMSTANCES WE THINK ANOTHER WELL RECOGNIZED PRINCIPLE
LEADS TO THE APPLICATION OF THE STATUTE AS IT IS WRITTEN SO AS TO
INCLUDE WITHIN ITS SWEEP FEDERAL OFFICERS AS WELL AS OTHERS.  THAT
PRINCIPLE IS THAT THE SOVEREIGN IS EMBRACED BY GENERAL WORDS OF A
STATUTE INTENDED TO PREVENT INJURY AND WRONG.  FN10 

THE JUDGMENT MUST BE REVERSED AND THE CAUSE REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  CH. 652, 48 STAT. 1064, 1103; U.S.C. TIT. 47, SEC. 605. 

FN2  90 F.(2D) 630.  SEE ALSO SMITH V. UNITED STATES, 91 F.(2D) 556. 

FN3  CH. 652, 48 STAT. 1064, 1100, U.S.C. TIT. 47, SEC. 501. 

FN4  ACT OF FEB. 23, 1927, C. 169, 44 STAT. 1162. 

FN5  DEPARTMENT OF JUSTICE APPROPRIATION ACT OF MARCH 1, 1933, 47
STAT. 1381. 

FN6  DOLLAR SAVINGS BANK V. UNITED STATES, 19 WALL.  227, 239; UNITED
STATES V. HERRON, 20 WALL.  251, 263; UNITED STATES V. AMERICAN BELL
TELEPHONE CO., 159 U.S. 548, 554; UNITED STATES V. STEVENSON, 215 U.S.
190, 197; TITLE GUARANTY & SURETY CO. V. GUARANTEE TITLE & TRUST CO.,
174 FED. 385, 388; MAXWELL, INTERPRETATION OF STATUTES (7TH ED.)  117,
121; BLACK ON INTERPRETATION OF LAWS (2D ED.)  94. 

FN7  UNITED STATES V. HOAR, 2 MASON 311, 314-315. 

FN8  "THE PROHIBITIONS (AGAINST ANY FORM OF ACTION EXCEPT THAT
SPECIFIED IN THE STATUTE) IF ANY, EITHER EXPRESS OR IMPLIED  ...  ARE
FOR OTHERS, NOT FOR THE GOVERNMENT.  THEY MAY BE OBLIGATORY ON TAX
COLLECTORS.  THEY MAY PREVENT ANY SUIT AT LAW BY SUCH OFFICERS OR
AGENTS."  DOLLAR SAVINGS BANK V. UNITED STATES, 19 WALL.  227, 239. 
"THESE PROVISIONS UNMISTAKABLY DISCLOSE DEFINITE INTENTION ON THE PART
OF CONGRESS EFFECTIVELY TO SAFEGUARD RIVERS AND OTHER NAVIGABLE WATERS
AGAINST THE UNAUTHORIZED ERECTION THEREIN OF DAMS OR OTHER STRUCTURES
FOR ANY PURPOSE WHATSOEVER.  THE PLAINTIFF MAINTAINS THAT THE
RESTRICTIONS SO IMPOSED APPLY ONLY TO WORK UNDERTAKEN BY PRIVATE
PARTIES.  BUT NO SUCH INTENTION IS EXPRESSED, AND WE ARE OF OPINION
THAT NONE IS IMPLIED.  THE MEASURES ADOPTED FOR THE ENFORCEMENT OF THE
PRESCRIBED RULE ARE IN GENERAL TERMS AND PURPORT TO BE APPLICABLE TO
ALL.  NO VALID REASON HAS BEEN OR CAN BE SUGGESTED WHY THEY SHOULD
APPLY TO PRIVATE PERSONS AND NOT TO FEDERAL AND STATE OFFICERS.  THERE
IS NO PRESUMPTION THAT REGULATORY AND DISCIPLINARY MEASURES DO NOT
EXTEND TO SUCH OFFICERS.  TAKEN AT FACE VALUE THE LANGUAGE INDICATES
THE PURPOSE OF CONGRESS TO GOVERN CONDUCT OF ITS OWN OFFICERS AND
EMPLOYEES AS WELL AS THAT OF OTHERS."  UNITED STATES V. ARIZONA, 295
U.S. 174, 184.  COMPARE STANLEY V. SCHWALBY, 147 U.S. 508, 515;
DONNELLEY V. UNITED STATES, 276 U.S. 505, 511. 

FN9  BALTHASAR V. PACIFIC ELECTRIC RY. CO., 187 CAL. 302; 202 PAC.
37; STATE V. GORHAM, 110 WASH. 330; 188 PAC. 457. 

FN10  UNITED STATES V. KNIGHT, 14 PET. 301, 315; UNITED STATES V.
HERRON, 20 WALL.  251, 263; BLACK ON INTERPRETATION OF LAWS (2D ED.) 
97. 

MR. JUSTICE SUTHERLAND, DISSENTING. 

I THINK THE WORD "PERSON" USED IN THIS STATUTE DOES NOT INCLUDE AN
OFFICER OF THE FEDERAL GOVERNMENT, ACTUALLY ENGAGED IN THE DETECTION OF
CRIME AND THE ENFORCEMENT OF THE CRIMINAL STATUTES OF THE UNITED
STATES, WHO HAS GOOD REASON TO BELIEVE THAT A TELEPHONE IS BEING, OR IS
ABOUT TO BE, USED AS AN AID TO THE COMMISSION OR CONCEALMENT OF A
CRIME.  THE DECISION JUST MADE WILL NECESSARILY HAVE THE EFFECT OF
ENABLING THE MOST DEPRAVED CRIMINALS TO FURTHER THEIR CRIMINAL PLANS
OVER THE TELEPHONE, IN THE SECURE KNOWLEDGE THAT EVEN IF THESE PLANS
INVOLVE KIDNAPPING AND MURDER, THEIR TELEPHONE CONVERSATIONS CAN NEVER
BE INTERCEPTED BY OFFICERS OF THE LAW AND REVEALED IN COURT.  IF
CONGRESS THUS INTENDED TO TIE THE HANDS OF THE GOVERNMENT IN ITS EFFORT
TO PROTECT THE PEOPLE AGAINST LAWLESSNESS OF THE MOST SERIOUS
CHARACTER, IT WOULD HAVE SAID SO IN A MORE DEFINITE WAY THAN BY THE USE
OF THE AMBIGUOUS WORD "PERSON."  COMMONWEALTH V. WELOSKY, 276 MASS.
398, 403-404, 406; 177 N.E. 656.  FOR THAT WORD HAS SOMETIMES BEEN
CONSTRUED TO INCLUDE THE GOVERNMENT AND ITS OFFICIALS, AND SOMETIMES
NOT.  I AM NOT AWARE OF ANY CASE WHERE IT HAS BEEN GIVEN THAT INCLUSIVE
EFFECT IN A SITUATION SUCH AS WE HAVE HERE.  OBVIOUSLY, THE SITUATION
DEALT WITH IN UNITED STATES V. ARIZONA, 295 U.S. 174, WAS QUITE
DIFFERENT.  THERE, A FEDERAL STATUTE FORBADE THE CONSTRUCTION OF ANY
BRIDGE, ETC., IN ANY PORT, ETC., "UNTIL THE CONSENT OF CONGRESS ...
SHALL HAVE BEEN OBTAINED."  THE MERE BUILDING OF THE DESIGNATED
STRUCTURE, IN THE ABSENCE OF CONGRESSIONAL CONSENT, VIOLATED THE
STATUTE.  THERE WAS NO AMBIGUOUS TERM, SUCH AS WE HAVE HERE, OR
ANYTHING ELSE IN THE LANGUAGE, REQUIRING CONSTRUCTION. 

THERE IS A MANIFEST DIFFERENCE BETWEEN THE CASE OF A PRIVATE
INDIVIDUAL WHO INTERCEPTS A MESSAGE FROM MOTIVES OF CURIOSITY OR TO
FURTHER PERSONAL ENDS, AND THAT OF A RESPONSIBLE OFFICIAL ENGAGED IN
THE GOVERNMENTAL DUTY OF UNCOVERING CRIME AND BRINGING CRIMINALS TO
JUSTICE.  IT IS FAIR TO CONCLUDE THAT THE WORD "PERSON" AS HERE USED
WAS INTENDED TO INCLUDE THE FORMER BUT NOT THE LATTER.  THIS ACCORDS
WITH THE WELL-SETTLED GENERAL RULE STATED BY JUSTICE STORY IN UNITED
STATES V. HOAR, 2 MASON 311, 314-315; 26 FED. CAS. 329, 330:  "IN
GENERAL, ACTS OF THE LEGISLATURE ARE MEANT TO REGULATE AND DIRECT THE
ACTS AND RIGHTS OF CITIZENS; AND IN MOST CASES THE REASONING APPLICABLE
TO THEM APPLIES WITH VERY DIFFERENT, AND OFTEN CONTRARY FORCE TO THE
GOVERNMENT ITSELF.  IT APPEARS TO ME, THEREFORE, TO BE A SAFE RULE
FOUNDED IN THE PRINCIPLES OF THE COMMON LAW, THAT THE GENERAL WORDS OF
A STATUTE OUGHT NOT TO INCLUDE THE GOVERNMENT, OR AFFECT ITS RIGHTS,
UNLESS THAT CONSTRUCTION BE CLEAR AND INDISPUTABLE UPON THE TEXT OF THE
ACT."  AND SEE IN THE MATTER OF WILL OF FOX, 52 N.Y. 530, 535.  COMPARE
STATE V. GORHAM, 110 WASH. 330; 188 PAC. 457; BALTHASAR V. PACIFIC
ELECTRIC RY. CO., 187 CAL. 302, 305-308; 202 PAC. 37.  A CASE IN POINT
IS THAT OF PEOPLE V. HEBBERD (SUP. CT. N.Y.), 96 MISC. 617, 620-621;
162 N.Y.S. 80.    IN THE INVESTIGATIONS OF THE CONGRESSIONAL
COMMITTEES, REFERRED TO IN THE OPINION OF THE COURT, IT APPEARED THAT
THE ATTORNEY GENERAL HAD ORDERED THAT NO TAPPING OF WIRES SHOULD BE
PERMITTED WITHOUT THE PERSONAL DIRECTION OF THE CHIEF OF THE BUREAU,
AFTER CONSULTATION WITH THE ASSISTANT ATTORNEY GENERAL IN CHARGE OF THE
CASE; AND THAT SUCH MEANS WERE TO BE ADOPTED ONLY AS AN EMERGENCY
METHOD.  THE ATTORNEY GENERAL HIMSELF APPEARED BEFORE ONE OF THE
COMMITTEES AND POINTED OUT THAT CRIME HAD BECOME HIGHLY ORGANIZED, WITH
STRONG POLITICAL CONNECTIONS AND ILLEGAL METHODS OF PROCEDURE; THAT
GANGSTERS AND DESPERATE CRIMINALS HAD EQUIPPED THEMSELVES WITH EVERY
MODERN CONVENIENCE AND INVENTION; THAT MODERN GANGSTERS HAVE NO REGARD
FOR LIFE, PROPERTY, DECENCY OR ANYTHING ELSE; AND HE HAD NO DOUBT THAT
THEY TAPPED WIRES LEADING TO OFFICES OF THE UNITED STATES ATTORNEYS TO
FIND OUT WHAT WAS BEING DONE.  HE CITED THE CASE OF A BUREAU OF
INVESTIGATION AGENT WHO HAD BEEN FOUND SHOT TO DEATH UNDER
CIRCUMSTANCES WHICH INDICATED THAT A GANG OF NARCOTIC TRAFFICKERS HAD
MURDERED HIM; AND HE POSED THE QUESTION WHETHER, IF IT HAD APPEARED
THAT THE PERPETRATORS OF THE CRIME COULD BE DETECTED AND BROUGHT TO
JUSTICE BY TAPPING THEIR TELEPHONE WIRES, NEVERTHELESS, THAT OUGHT NOT
TO BE DONE. 

THE ANSWER OF CONGRESS TO THE QUESTION HAS BEEN A REFUSAL TO PASS ANY
OF THE BILLS WHICH COMPREHENSIVELY PROPOSED TO FORBID THE PRACTICE. 

MY ABHORRENCE OF THE ODIOUS PRACTICES OF THE TOWN GOSSIP, THE PEEPING
TOM, AND THE PRIVATE EAVESDROPPER IS QUITE AS STRONG AS THAT OF ANY OF
MY BRETHREN.  BUT TO PUT THE SWORN OFFICERS OF THE LAW, ENGAGED IN THE
DETECTION AND APPREHENSION OF ORGANIZED GANGS OF CRIMINALS, IN THE SAME
CATEGORY, IS TO LOSE ALL SENSE OF PROPORTION.  IN VIEW OF THE
SAFEGUARDS AGAINST ABUSE OF POWER FURNISHED BY THE ORDER OF THE
ATTORNEY GENERAL, AND IN THE LIGHT OF THE DEADLY CONFLICT CONSTANTLY
BEING WAGED BETWEEN THE FORCES OF LAW AND ORDER AND THE DESPERATE
CRIMINALS WHO INFEST THE LAND, WE WELL MAY PAUSE TO CONSIDER WHETHER
THE APPLICATION OF THE RULE WHICH FORBIDS AN INVASION OF THE PRIVACY OF
TELEPHONE COMMUNICATIONS IS NOT BEING CARRIED IN THE PRESENT CASE TO A
POINT WHERE THE NECESSITY OF PUBLIC PROTECTION AGAINST CRIME IS BEING
SUBMERGED BY AN OVERFLOW OF SENTIMENTALITY. 

I THINK THE JUDGMENT BELOW SHOULD BE AFFIRMED. 

MR. JUSTICE MCREYNOLDS JOINS IN THIS OPINION. 
..END :








SMYTH V. UNITED STATES, 302 U.S. 329 


NO. 42.  ARGUED NOVEMBER 18, 19, 1937.  - DECIDED DECEMBER 13, 1937.  -
85 CT. CLS. 318 -  83 CT. CLS. 656, AFFIRMED.  - 87 F.(2D) 594,
REVERSED. 


1.  BONDS OF THE UNITED STATES PROMISING PAYMENT OF PRINCIPAL AND
INTEREST IN UNITED STATES GOLD COIN OF THE STANDARD OF VALUE IN FORCE
AT THE TIME OF THEIR ISSUANCE (25.8 GRAINS OF GOLD 9/10THS FINE PER
DOLLAR) WERE CALLED BY THE SECRETARY OF THE TREASURY FOR REDEMPTION AND
PAYMENT PRIOR TO THEIR STATED DAY OF MATURITY, PURSUANT TO PROVISIONS
THEREIN WHICH RESERVED THIS RIGHT TO THE UNITED STATES TO BE EXERCISED
THROUGH A PUBLISHED NOTICE, AND WHICH DECLARED THAT FROM THE DATE OF
REDEMPTION DESIGNATED IN SUCH NOTICE INTEREST ON THE CALLED BONDS
SHOULD CEASE AND ALL COUPONS THEREON MATURING AFTER THAT DATE SHOULD BE
VOID.  PRIOR TO THE NOTICES, THE JOINT RESOLUTION OF JUNE 5, 1933,
PROVIDING FOR THE DISCHARGE OF "GOLD CLAUSE" OBLIGATIONS UPON PAYMENT,
DOLLAR FOR DOLLAR, IN ANY COIN OR CURRENCY WHICH AT THE TIME OF PAYMENT
IS LEGAL TENDER FOR PRIVATE DEBTS, HAD BEEN ADOPTED; AND IN TWO OF THE
CASES THE NOTICES WERE LATER THAN THE DECISIONS OF THIS COURT IN THE
GOLD CLAUSE CASES, INCLUDING PERRY V. UNITED STATES, 294 U.S. 330. 
HELD: 

(1)  THAT THE EFFECT OF THE PUBLISHED NOTICE WAS TO ACCELERATE THE
MATURITY OF THE BONDS, THE NEW DATE SPECIFIED IN THE NOTICE SUPPLANTING
THE OLD ONE STATED IN THE BONDS AS IF THERE FROM THE BEGINNING.  P.
353. 

(2)  HOLDERS OF THE BONDS HAD NO CLAIM AGAINST THE UNITED STATES ON
INTEREST COUPONS COVERING A PERIOD SUBSEQUENT TO THE NEW DATE, SINCE BY
THE TERMS OF THE BONDS INTEREST CEASED TO RUN ON THAT DATE.  P. 353. 

IN THE ABSENCE OF CONTRACT OR STATUTE EVINCING A CONTRARY INTENTION,
INTEREST DOES NOT RUN UPON CLAIMS AGAINST THE GOVERNMENT EVEN THOUGH
THERE HAS BEEN DEFAULT IN PAYMENT OF THE PRINCIPAL.  THE ALLOWANCE OF
INTEREST IN EMINENT DOMAIN CASES IS ONLY AN APPARENT EXCEPTION, WHICH
HAS ITS ORIGIN IN THE CONSTITUTION. 

(3)  THE PROPOSITION THAT THE NOTICES OF CALL WERE VOID, UPON THE
GROUND THAT THEY MUST BE READ WITH THE JOINT RESOLUTION OF JUNE 5,
1933, AND, THUS SUPPLEMENTED, PROMISED PAYMENT DIFFERENT FROM THAT
PROMISED BY THE BONDS, CAN NOT BE MAINTAINED.  P. 354. 

THE NOTICES OF CALL WERE NOT PROMISES, AND DID NOT COMMIT THE
GOVERNMENT, EITHER EXPRESSLY OR BY INDIRECTION, TO A FORBIDDEN MEDIUM
OF PAYMENT.  NOTICE THAT THE BONDS WERE CALLED FOR REDEMPTION ON THE
SPECIFIED DATE IMPLIED THAT AT THAT ACCELERATED MATURITY THE
BONDHOLDERS WOULD BE ENTITLED TO PAYMENT OF PRINCIPAL AND ACCRUED
INTEREST IN SUCH FORM AND MEASURE AS WOULD DISCHARGE THE OBLIGATION IN
ACCORDANCE WITH THE CONSTITUTION, STATUTES AND ANY CONTROLLING
DECISIONS. 

THE CONTENTION THAT THE EXISTENCE OF THE JOINT RESOLUTION, SUPRA,
AMOUNTED TO AN ANTICIPATORY BREACH, IS EXAMINED AND REJECTED.  THE
DOCTRINE OF ANTICIPATORY BREACH HAS IN GENERAL NO APPLICATION TO
UNILATERAL CONTRACTS, AND PARTICULARLY TO CONTRACTS FOR THE PAYMENT OF
MONEY ONLY.  MOREOVER, AN ANTICIPATORY BREACH, IF IT WERE MADE OUT,
COULD HAVE NO EFFECT UPON THE RIGHT OF THE COMPLAINING BONDHOLDERS TO
POSTPONE THE TIME OF PAYMENT TO THE DATE OF NATURAL MATURITY.  THE
GOVERNMENT WAS NOT SUBJECT TO A DUTY TO KEEP THE CONTENT OF THE DOLLAR
CONSTANT DURING THE PERIOD INTERVENING BETWEEN PROMISE AND
PERFORMANCE.  THE DUTY OF THE GOVERNMENT WAS TO PAY THE BONDS WHEN
DUE.  P. 356. 

THE FACT THAT THE STATUTORY PROVISIONS FOR PAYMENT IN ANY LEGAL
TENDER REMAINED UNREPEALED DID NOT AFFECT THE DATE OF MATURITY AS
ACCELERATED BY THE NOTICES. 

(4)  NO QUESTION OF CONSTITUTIONAL LAW, NOR OF FRAUD, IS INVOLVED IN
THE DECISION OF THESE CASES.  P. 359. 

(5)  THE SECRETARY OF THE TREASURY DID NOT EXCEED HIS LAWFUL POWERS
BY ISSUING THE CALLS WITHOUT FURTHER AUTHORITY FROM THE CONGRESS THAN
WAS CONFERRED BY THE STATUTES UNDER WHICH THE BONDS WERE ISSUED.  P.
359. 

2.  THE ACT OF MARCH 18, 1869(R.S. SEC. 3693; 16 STAT. 1), WHICH IN
ITS DAY PLACED RESTRICTIONS UPON THE REDEMPTION BY THE GOVERNMENT OF
INTEREST-BEARING BONDS, WAS FOR THE PROTECTION OF HOLDERS OF UNITED
STATES OBLIGATIONS NOT BEARING INTEREST, THE "GREENBACKS" OF THAT ERA. 
UPON THE RESUMPTION OF SPECIE PAYMENTS IN 1879 THE AIM OF THE STATUTE
WAS ACHIEVED, AND ITS RESTRICTIONS ARE NO LONGER BINDING.  P. 360. 

SMYTH, EXECUTOR, V. UNITED STATES.* 

*TOGETHER WITH NO. 43, DIXIE TERMINAL CO. V. UNITED STATES, ALSO ON
WRIT OF CERTIORARI TO THE COURT OF CLAIMS; AND NO. 198, UNITED STATES
V. MACHEN, ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE FOURTH CIRCUIT. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, 301 U.S. 679, 680; POST, P. 672, TO REVIEW JUDGMENTS IN
THREE SUITS AGAINST THE UNITED STATES TO RECOVER ON INTEREST COUPONS
ATTACHED TO GOVERNMENT BONDS CONTAINING THE GOLD CLAUSE, WHICH HAD BEEN
CALLED FOR REDEMPTION.  IN NOS. 42 AND 43, THE COURT OF CLAIMS
DISMISSED THE CLAIMS.  IN NO. 198, THE DISTRICT COURT GAVE JUDGMENT FOR
THE UNITED STATES, WHICH WAS REVERSED BY THE CIRCUIT COURT OF APPEALS. 
IN THE FIRST TWO CASES THE PLAINTIFFS HAD PRESENTED THEIR BONDS TO THE
TREASURER OF THE UNITED STATES AND DEMANDED PAYMENT IN GOLD DOLLARS
EACH OF 25.8 GRAINS OF GOLD 9/10THS FINE, AND DECLINED A TENDER IN COIN
OR CURRENCY OTHER THAN GOLD OR GOLD CERTIFICATES.  THEY HAD THEN
DEMANDED, UNSUCCESSFULLY, THAT COUPONS FOR INTEREST PERIODS SUBSEQUENT
TO THE DATE FIXED IN THE CALLS FOR REDEMPTION OF THE BONDS, BE PAID
EITHER IN GOLD OR IN LEGAL TENDER CURRENCY.  THEIR SUITS WERE FOR THE
AMOUNTS OF THE COUPONS IN CURRENT DOLLARS.  IN NO. 198 THE SITUATION
WAS SIMILAR.  THERE HAD BEEN NO PRESENTATION OF THE BOND OR COUPON FOR
PAYMENT, BUT IT WAS STIPULATED THAT THE TREASURER OF THE UNITED STATES
AND OTHER FISCAL AGENTS HAD NOT AT ANY TIME BEEN DIRECTED BY THE
SECRETARY OF THE TREASURY TO REDEEM THE BONDS IN GOLD COIN, BUT HAD
BEEN AUTHORIZED AND DIRECTED TO REDEEM IN LEGAL TENDER CURRENCY; ALSO
THAT THERE WAS A REFUSAL TO PAY SIMILAR COUPONS FOR INTEREST ACCRUING
AFTER THE DATE OF REDEMPTION. 

1.  THE PROVISIONS OF THE BOND AND CIRCULAR WITH RESPECT TO PAYMENT
IN GOLD COIN ARE VALID UNDER THE PERRY DECISION, IN SPITE OF THE
LEGISLATION ADOPTED BY CONGRESS. 

IN VIEW OF THIS DECISION, THERE CAN BE NO DOUBT THAT THE GOVERNMENT
WAS OBLIGATED TO PAY THE PETITIONER'S BOND IN GOLD COIN OF THE FORMER
STANDARD OF VALUE, AND THAT THIS OBLIGATION REMAINS BINDING UPON THE
CONSCIENCE OF THE SOVEREIGN. 

THE LACK OF REMEDY IS NOT MATERIAL, BECAUSE THE PLAINTIFF IS NOT
SUING FOR GOLD.  THE PLAINTIFF IN THE PERRY CASE FAILED TO RECOVER
BECAUSE HE ATTEMPTED TO OBTAIN ARBITRARILY AN AMOUNT OF CURRENCY IN
EXCESS OF THE FACE AMOUNT OF HIS BOND, WITHOUT ALLEGING OR PROVING ANY
DIRECT DAMAGES TO HIMSELF RESULTING FROM THE GOVERNMENT'S REPUDIATION
OF ITS OBLIGATION.  BUT IN THIS CASE THE PLAINTIFF IS NOT SEEKING A
REMEDY; IT IS THE GOVERNMENT WHICH IS ATTEMPTING TO EXERCISE A
PRIVILEGE GIVEN TO IT BY THE TERMS OF THE BOND, AT THE SAME TIME THAT
IT IS REPUDIATING ITS OBLIGATION CONTAINED IN THAT BOND.  THE
PETITIONER CONTENDS THAT HE MAY HOLD HIS BOND UNTIL MATURITY, AT WHICH
TIME THE GOLD STANDARD MAY BE RESTORED, OR THE VALUE OF THE GOLD DOLLAR
INCREASED.  IF NOT, THE PETITIONER WILL NO DOUBT BE OBLIGED TO ACCEPT
CURRENCY IN PAYMENT OF THE BOND.  ALTHOUGH THE GOVERNMENT IS LEGALLY
AND MORALLY OBLIGATED TO PAY THIS BOND IN GOLD, IT IS NOW TRYING TO
EXERCISE THE POWER GIVEN TO IT IN THE BOND TO REDEEM THE BOND, AND TO
PAY THAT BOND IMMEDIATELY IN A DEPRECIATED CURRENCY.  IF THE GOVERNMENT
HAD TO PAY THE BOND IN GOLD, IT WOULD NEVER HAVE CALLED THE BOND.  THE
PLAINTIFF IS SEEKING TO RECOVER ONLY THE CURRENCY VALUE OF HIS COUPON;
HE IS NOT SEEKING DAMAGES FOR FAILURE TO PAY GOLD; HE IS MERELY
INSISTING THAT THE GOVERNMENT CANNOT REPUDIATE ITS OBLIGATIONS IN ONE
BREATH, AND AVAIL ITSELF OF PRIVILEGES CONFERRED ON IT AT THE SAME
TIME. 

2.  THE ATTEMPT TO REDEEM WAS VOID AB INITIO, BECAUSE THE NOTICE
PUBLISHED WAS NOT A NOTICE OF INTENTION TO REDEEM IN GOLD IN ACCORDANCE
WITH THE TERMS OF THE BOND. 

IT IS CLEAR THAT "NOTICE PUBLISHED AT LEAST THREE MONTHS PRIOR TO THE
REDEMPTION DATE" IS A CONDITION PRECEDENT TO THE RIGHT TO REDEEM.  WHAT
KIND OF A NOTICE DOES THIS REFER TO?  IT MUST OBVIOUSLY BE A NOTICE TO
PAY THE BOND IN ACCORDANCE WITH ITS TERMS.  A NOTICE TO PAY THE BOND IN
REAL ESTATE, OR BY TRANSFERRING MUNICIPAL BONDS OR OTHER SECURITIES,
WOULD BE EXACTLY AS GOOD AS NO NOTICE AT ALL.  UNDER THE CIRCUMSTANCES
EXISTING ON MARCH 14, 1932, AND THE LEGISLATION THEN IN EFFECT, THIS
NOTICE WAS NOT A NOTICE TO REDEEM IN GOLD IN ACCORDANCE WITH THE TERMS
OF THE BOND, BUT A NOTICE TO REDEEM IN CURRENCY. 

ON MARCH 14, 1935, WHEN THE NOTICE TO REDEEM FIRST LIBERTY LOAN BONDS
WAS ISSUED IN TREASURY DEPARTMENT CIRCULAR NO. 535, THERE WAS IN FULL
EFFECT THE GOLD RESERVE ACT OF 1934, WHICH PROVIDED:  "NO GOLD SHALL
HEREAFTER BE COINED AND NO GOLD COIN SHALL HEREAFTER BE PAID OUT OR
DELIVERED BY THE UNITED STATES."  WE RESPECTFULLY SUBMIT, IN THE FIRST
PLACE, THAT THE SECRETARY OF THE TREASURY, WHILE THAT STATUTE WAS IN
EFFECT, COULD NOT ISSUE A NOTICE OF INTENTION TO PAY THE BOND IN
ACCORDANCE WITH ITS TERMS.  THE SECRETARY OF THE TREASURY IS AN
ADMINISTRATIVE OFFICER, SUBJECT IN ALL RESPECTS TO THE LEGISLATION OF
CONGRESS.  EXCEPT FOR ENACTMENT BY CONGRESS, THE RIGHT TO REDEEM "AT
THE PLEASURE OF THE UNITED STATES" DOES NOT MEAN THE RIGHT TO REDEEM AT
THE PLEASURE OF THE SECRETARY OF THE TREASURY.  AS FAR AS HE HAS ANY
POWER TO ISSUE A NOTICE, IT EXISTS BY CONGRESSIONAL ENACTMENT.  SINCE
CONGRESS PROHIBITED HIM FROM PAYING OUT GOLD, THERE CAN CERTAINLY BE NO
AUTHORITY IMPLIED IN ANY WAY FOR HIM TO GIVE A NOTICE OF INTENTION TO
REDEEM IN GOLD. 

IN THE SECOND PLACE, NO MATTER WHAT THE POWER OF THE SECRETARY OF THE
TREASURY, THE NOTICE ISSUED WAS NOT A NOTICE TO REDEEM IN GOLD.  IT WAS
SILENT AS TO THE MEDIUM OF PAYMENT, BUT IN VIEW OF THE LEGISLATION THEN
IN EFFECT, IT WAS CLEARLY A STATEMENT OF INTENTION TO REDEEM IN
CURRENCY AND NOT IN GOLD.  WE HAVE ALREADY REFERRED TO THE JOINT
RESOLUTION OF JUNE 5, 1933, AND THE GOLD RESERVE ACT OF 1934.  WE HAVE
REFERRED TO THE VARIOUS OTHER ACTS OF CONGRESS AND THE PRESIDENT
NATIONALIZING GOLD AND PROHIBITING THE HOLDING OF GOLD BY PRIVATE
PERSONS.  THE NOTICE ISSUED MUST BE CONSTRUED IN THE LIGHT OF THESE
ENACTMENTS AS A NOTICE TO REDEEM IN CURRENCY.  IT MUST BE PRESUMED THAT
THE SECRETARY OF THE TREASURY, AN ADMINISTRATIVE OFFICER, WAS MERELY
CARRYING OUT THE INTENTION OF CONGRESS. 

THIS IS NO IMAGINARY ARGUMENT.  WHEN THE CALL WAS ISSUED, EVERYBODY
IN THE UNITED STATES KNEW EXACTLY WHAT WAS INTENDED.  CONGRESS HAD
REPEATEDLY DECLARED ITS INTENTION OF ABANDONING GOLD AND PAYING IN
CURRENCY.  NO OFFICIAL OF THE GOVERNMENT, NO HOLDER OF ANY BOND, HAD
THE SLIGHTEST IDEA THAT THE NOTICE OF CALL MEANT ANYTHING EXCEPT A CALL
TO PAY IN CURRENCY.  THE SECRETARY OF THE TREASURY WOULD NEVER HAVE
CALLED THE BONDS IF HE HAD HAD THE SLIGHTEST EXPECTATION OF HAVING TO
PAY IN GOLD. 

THE PRESIDENT HAD ALSO DEVALUED THE DOLLAR, AND ESTABLISHED, WITH THE
APPROVAL OF CONGRESS, A DOLLAR HAVING A DIFFERENT STANDARD OF VALUE
FROM THAT PRESCRIBED IN THE BOND, SO THAT EVEN IF GOLD COULD HAVE BEEN
PAID OUT, IT WOULD HAVE BEEN A DIFFERENT AMOUNT OF GOLD THAN THAT
CALLED FOR BY THE TERMS OF THE BOND. 

A CALL FOR PAYMENT IN CURRENCY IS CLEARLY NOT IN ACCORD WITH THE
PROVISIONS OF THE BOND AND THE CIRCULAR UNDER WHICH THE BOND WAS
ISSUED, WHICH PROVISIONS THIS COURT HAS HELD TO BE VALID.  IT SEEMS
MANIFEST, THEREFORE, THAT THE SO-CALLED "CALL" OF MARCH 14, 1935, MAY
BE TREATED BY THE BONDHOLDER AS COMPLETELY VOID, AND HIS BOND WILL
CONTINUE TO DRAW INTEREST UNTIL MATURITY, OR UNTIL AFTER A BONA FIDE
CALL FOR REDEMPTION IN ACCORDANCE WITH THE TERMS OF THE BOND. 

THE WHOLE ARGUMENT THAT THE GOVERNMENT CAN DISTINGUISH ITSELF AS
CONTRACTOR AND SOVEREIGN IN THE MATTER OF GOVERNMENT BONDS WAS
DESTROYED ONCE AND FOR ALL IN THE PERRY CASE.  THE GOVERNMENT'S
CONTENTION IN THAT CASE WAS THAT IN ITS CAPACITY AS SOVEREIGN IT COULD
EFFECTUALLY DESTROY ITS OBLIGATION AS CONTRACTOR ON ITS OWN BONDS.  IT
WAS A STRONG ARGUMENT, WHICH PREVAILED WITH ONE OF THE JUSTICES OF THIS
COURT, AND IT DREW SUPPORT FROM THE VERY CASES WHICH THE GOVERNMENT
ATTEMPTS TO RELY ON HERE.  BUT THE COURT FOUND THAT THE GOVERNMENT'S
OWN OBLIGATIONS ON ITS PUBLIC DEBT WERE ASSUMED IN THE EXERCISE OF ITS
SOVEREIGN POWERS, AND THAT THEY COULD NOT BE CHANGED OR ABROGATED
THROUGH THE EXERCISE OF ANY OTHER SOVEREIGN POWER. 

IT IS SUGGESTED BY THE GOVERNMENT THAT BECAUSE THE SUPREME COURT OF
THE UNITED STATES, IN PERRY V. UNITED STATES, TREATED THE CALL AS
VALID, AND CONSIDERED PERRY'S CLAIM FOR PAYMENT OF THE PRINCIPAL,
THEREFORE THAT CASE IS AN AUTHORITY TO ESTABLISH THE VALIDITY OF THE
GOVERNMENT'S CALL.  IN THE FIRST PLACE, THIS QUESTION WAS NOT
CONSIDERED BY THIS COURT AT ANY POINT.  BOTH THE GOVERNMENT AND THE
PLAINTIFF WERE WILLING TO PROCEED ON THE ASSUMPTION THAT THE BOND HAD
BEEN CALLED, SO THAT THE POINT WAS NOT BROUGHT TO THE ATTENTION OF THE
COURT.  IN THE SECOND PLACE, IT IS ENTIRELY POSSIBLE THAT THE
BONDHOLDER MAY HAVE AN OPTION TO TREAT THE CALL AS VALID IF HE SO
DESIRES.  IF A PRIVATE CORPORATION ISSUED A CALL, AND THEN FAILED TO
HAVE FUNDS TO PAY THE BONDS, THE BONDHOLDER CERTAINLY COULD HOLD HIS
BONDS UNTIL MATURITY, BUT HE SHOULD ALSO IN REASON HAVE AN OPTION TO
TREAT THE BONDS AS CALLED AND INSIST UPON THEIR PAYMENT.  SUCH A
CORPORATION WOULD BE ESTOPPED TO ASSERT THE INVALIDITY OF ITS OWN
CALL. 

THE GOVERNMENT IN THE LOWER COURT CONTENDED THAT THE TENDER TO
PETITIONER OF CURRENCY IN PAYMENT OF HIS BOND WAS A COMPLIANCE WITH THE
TERMS OF THE BOND, ON THE GROUND THAT CURRENCY IS THE "EQUIVALENT" OF
GOLD.  TO SUPPORT THIS POSITION, THEY QUOTE FROM THE OPINION OF THE
CHIEF JUSTICE IN PERRY V. UNITED STATES, AT PAGE 357, IN WHICH HE
STATES THAT THE WORD "EQUIVALENT" CANNOT MEAN MORE THAN THE AMOUNT OF
MONEY WHICH THE PROMISED GOLD COIN WOULD BE WORTH TO THE BONDHOLDER FOR
THE PURPOSE FOR WHICH IT COULD LEGALLY BE USED.  BUT IN THAT CASE THE
PLAINTIFF SUED FOR $10,000 IN GOLD COIN, OR ITS EQUIVALENT IN CURRENCY,
WHICH THE PLAINTIFF CLAIMED TO BE $16,931.25.  THE CHIEF JUSTICE HELD
THAT THIS WAS NOT NECESSARILY THE EQUIVALENT IN CURRENCY, AND THAT MANY
OTHER CIRCUMSTANCES, SUCH AS THE PRICE LEVEL AND THE INTRINSIC WORTH OF
THE CURRENCY, HAD A BEARING ON THE QUESTION.  THE ENTIRE DISCUSSION
RELATED SOLELY TO THE QUESTION OF DAMAGES.  IN THIS CASE, HOWEVER, THE
QUESTION OF DAMAGES DOES NOT ARISE, NOR IS THE PETITIONER ASKING FOR
ANY "EQUIVALENT."  IT IS THE GOVERNMENT WHICH IS TENDERING THE
PETITIONER SOMETHING, IN REDEMPTION OF HIS BOND PRIOR TO MATURITY,
WHICH THE GOVERNMENT IS CLAIMING TO BE THE "EQUIVALENT" OF GOLD. 

CERTAINLY CURRENCY IS NOT THE SAME AS GOLD COIN.  THIS COURT
NECESSARILY HOLDS THAT IT IS DIFFERENT IN HOLDING THE JOINT RESOLUTION
OF JUNE 5, 1933, UNCONSTITUTIONAL.  THE VERY THING WHICH CONGRESS WAS
ATTEMPTING TO DO WAS TO MAKE LEGAL-TENDER CURRENCY THE EQUIVALENT OF
GOLD COIN.  WHEN THIS COURT STATED THAT "THE JOINT RESOLUTION OF JUNE
5, 1933, IN SO FAR AS IT ATTEMPTED TO OVERRIDE THE OBLIGATION CREATED
BY THE BOND IN SUIT, WENT BEYOND THE CONGRESSIONAL POWER," IT
NECESSARILY HELD THAT LEGAL-TENDER CURRENCY WAS NOT THE EQUIVALENT OF
GOLD COIN. 

THE RIGHT OF REDEMPTION IS BASED ON EXACT COMPLIANCE WITH THE TERMS
OF THE BOND.  PETITIONER IS NOT OBLIGATED TO ALLOW HIS BOND TO BE
REDEEMED, EVEN THOUGH THE GOVERNMENT DOES OFFER AN EQUIVALENT OR FAR
MORE THAN AN EQUIVALENT.  THE RIGHT OF REDEMPTION RESTS ON THE WORDS OF
THE BOND AND THE CIRCULAR, WHICH SAY NOTHING WHATEVER ABOUT AN
"EQUIVALENT." 

WE RESPECTFULLY SUBMIT, THEREFORE, THAT THE ENTIRE PROCEDURE BY WHICH
THE GOVERNMENT ATTEMPTED TO CALL LIBERTY BONDS IN ADVANCE OF MATURITY,
WHEN IT HAD NO INTENTION TO PAY THE BONDS IN ACCORDANCE WITH THEIR
TERMS AND STATUTES EXPRESSLY FORBADE SUCH PAYMENT, WAS VOID AB INITIO,
BECAUSE THE NOTICE PUBLISHED WAS NOT THE NOTICE PROVIDED FOR BY THE
BOND.  IT FOLLOWS, THEREFORE, THAT INTEREST DID NOT CEASE TO RUN ON THE
DATE FIXED FOR REDEMPTION, BUT CONTINUED AS PART OF THE ORIGINAL
CONTRACT ENTERED INTO BY THE GOVERNMENT IN ITS BOND. 

3.  EVEN IF THE PURPORTED CALL WERE CONSIDERED VALID, THE RUNNING OF
INTEREST ON PETITIONER'S BOND DID NOT CEASE ON JUNE 15, 1935, BECAUSE
THE UNITED STATES WAS NOT READY AND WILLING AT THAT TIME OR AT ANY TIME
TO REDEEM THE PETITIONER'S BOND IN ACCORDANCE WITH ITS TERMS. 

THE NECESSARY AND LOGICAL CONCLUSION FROM THE GOVERNMENT'S POSITION
IS THAT UNDER THE TERMS OF THE BOND THE GOVERNMENT COULD CALL A BOND
WITHOUT THE SLIGHTEST INTENTION OF PAYING IT AND THEREBY CAUSE INTEREST
TO STOP RUNNING.  IN THE PERRY CASE, THIS COURT INSISTED ON THE
SACREDNESS OF THE GOVERNMENT'S OBLIGATIONS.  THE CONSTRUCTION OF THE
OBLIGATION INSISTED ON BY THE GOVERNMENT WOULD ENABLE IT TO CANCEL ITS
SACRED OBLIGATIONS. 

IT IS WELL SETTLED THAT HOLDERS OF BONDS WITHOUT A CALL PROVISION
CANNOT BE MADE TO ACCEPT PAYMENT IN ADVANCE OF MATURITY:  CHICAGO, ETC.
RAILROAD CO. V. PYNE, 30 FED. 86; MISSOURI RAILROAD CO. V. UNION TRUST
CO., 156 N.Y. 592, 51 N.E. 309.  A STATUTE PROVIDING THAT PAYMENT MUST
BE ACCEPTED BEFORE MATURITY IS UNCONSTITUTIONAL; RANDOLPH V. MIDDLETON,
26 N.J. EQ. 543.  SURELY AN EFFECTIVE CALL CANNOT BE ISSUED UNLESS IT
IS FOLLOWED BY A TENDER OF THE MONEY EITHER TO A TRUSTEE OR PAYING
AGENT IN THE CASE OF A PRIVATE CORPORATION, OR DIRECT TO THE BONDHOLDER
IN THE CASE OF THE UNITED STATES.    WHILE THE PETITIONER'S BOND
PROVIDED THAT FROM THE DATE OF REDEMPTION DESIGNATED IN ANY NOTICE OF
CALL, INTEREST ON THE CALLED BONDS SHOULD CEASE, YET THE BOND ALSO
CONTAINED THE EXPRESS PROVISION THAT "ALL OR ANY OF THE BONDS OF THE
SERIES OF WHICH THIS IS ONE, MAY BE REDEEMED AND PAID  ....  "
CERTAINLY THIS PROVISION FOR REDEMPTION AND PAYMENT WOULD NOT HAVE BEEN
INSERTED IN THE BOND, IF IT WERE THE INTENTION OF THE PARTIES THAT
INTEREST SHOULD CEASE UPON A DATE SET FOR REDEMPTION, REGARDLESS OF THE
WILLINGNESS AND ABILITY OF THE UNITED STATES TO REDEEM.    THE
GOVERNMENT RELIES ON THE PHRASE USED IN THE FIRST SENTENCE OF THE BOND,
IN WHICH THE UNITED STATES PROMISES TO PAY THE PRINCIPAL SUM "WITH
INTEREST AT THE RATE OF THREE AND ONE-HALF PERCENTUM PER ANNUM PAYABLE
SEMI-ANNUALLY ON DECEMBER FIFTEENTH AND JUNE FIFTEENTH IN EACH YEAR
UNTIL THE PRINCIPAL HEREOF SHALL BE PAYABLE."  THE GOVERNMENT POINTS
OUT THAT THE UNITED STATES DOES NOT UNDERTAKE TO PAY INTEREST UNTIL THE
PRINCIPAL SHALL BE "PAID."  OF COURSE IT IS CLEAR WHY THE WORD
"PAYABLE" IS USED.  MANY HOLDERS OF SUCH BONDS DO NOT TURN IN THEIR
BONDS ON THE CALL DATE, THROUGH OVERSIGHT OR OTHERWISE, AND IT IS
PROPER THAT INTEREST SHOULD CEASE TO RUN AT THAT TIME IN THE ORDINARY
CASE WHEN THE GOVERNMENT IS MEETING ITS OBLIGATIONS.  IN ORDER TO
PROVIDE FOR THIS CONTINGENCY, THE WORD "PAYABLE" IS USED. 

IF IT HAD BEEN THOUGHT NECESSARY TO PROVIDE FOR THE CONTINGENCY THAT
THE GOVERNMENT WOULD REPUDIATE ITS BONDS, ONLY A VERY COMPLICATED
PHRASE COULD HAVE EXPRESSED THE GOVERNMENT'S OBLIGATION.  IT WOULD HAVE
HAD TO REFER TO A REPUDIATION, WHICH NOBODY THOUGHT LIKELY OR DESIRED
TO REFER TO.  CONTRACTS SELDOM PROVIDE FOR WHAT SHALL OCCUR IN CASE OF
DEFAULT BECAUSE THEY ARE MADE TO BE CARRIED OUT AND NOT TO BE BROKEN. 
IT IS USUAL TO LEAVE TO THE COURTS THE QUESTION OF THE PARTIES' RIGHTS
WHEN SUCH A DEFAULT DOES OCCUR.  THIS IS PARTICULARLY TRUE IN THE CASE
OF THE GOVERNMENT, FOR, AS STATED BY MR. JUSTICE STRONG IN UNITED
STATES V. SHERMAN, 98 U.S. 565:  "BUT DELAY OR DEFAULT CANNOT BE
ATTRIBUTED TO THE GOVERNMENT.  IT IS PRESUMED TO BE ALWAYS READY TO PAY
WHAT IT OWES." 

FURTHERMORE, THE WORD "PAYABLE" REFERS TO THE MATURITY OF THE BOND,
AND NOT TO ANY DATE ON WHICH IT MAY BE REDEEMABLE.  CITING:  MORGAN V.
UNITED STATES, 113 U.S. 476; STERLING V. H.F. WATSON CO., 241 PA. 105,
AND CORBETT V. MCCLINTIC-MARSHALL CORP., 17 DEL. CH. 165. 
DISTINGUISHING SPAULDING V. LORD, 19 WIS. 533.  SEE 50 HARV. L. REV.
986.  IF THERE IS ANY AMBIGUITY, THE BOND SHOULD BE CONSTRUED MOST
STRONGLY AGAINST THE GOVERNMENT BECAUSE DRAFTED BY ITS OWN OFFICIALS,
AND SOLD TO PERSONS WHO DID NOT EVEN CONTEMPLATE THE REPUDIATION OF ITS
OBLIGATIONS BY THE UNITED STATES.  CERTAINLY THIS COURT SHOULD NOT
COUNTENANCE AN INTERPRETATION OF THE BOND WHICH NECESSARILY MEANS THAT
THE GOVERNMENT MAY AT ANY TIME CALL A BOND WITHOUT THE SLIGHTEST
INTENTION OF PAYING IT, AND THEREBY STOP THE RUNNING OF INTEREST AFTER
THE CALL DATE, WHETHER OR NOT THE GOVERNMENT IS PREPARED TO REDEEM THE
BOND ON THAT DATE.  THIS IS NOT THE CONTRACT WHICH THE BONDHOLDERS
THOUGHT THEY WERE GETTING. 

4.  THE PURPORTED CALL ISSUED ON MARCH 14, 1935, WAS VOID, BECAUSE
THE SECRETARY OF THE TREASURY HAD NO AUTHORITY TO ISSUE A CALL WITHOUT
FURTHER ACTION BY CONGRESS. 

THE REDEMPTION OF BONDS IS A MAJOR FINANCIAL TRANSACTION, REQUIRING
THE CONSIDERATION OF CONGRESS.  THE SECRETARY OF THE TREASURY, BETWEEN
OCTOBER 12, 1933, AND AUGUST 1, 1935, DETERMINED TO CALL NEARLY NINE
BILLION DOLLARS IN BONDS PAYABLE IN GOLD, AT A TIME WHEN THE TERMS OF
THE BONDS COULD NOT BE COMPLIED WITH.  THE POLICY FOLLOWED INVOLVED A
REPUDIATION BY THE GOVERNMENT OF ITS SOLEMN OBLIGATIONS DECLARED TO BE
SUCH BY THIS COURT IN THE CASE OF PERRY V. UNITED STATES, 294 U.S.
330.  CERTAINLY NO ONE WOULD MAINTAIN THAT AN INDIVIDUAL, HOLDING AN
APPOINTED OFFICE IN A GOVERNMENT FOUNDED ON THE THEORY OF POPULAR
REPRESENTATION AND CONTROL, WOULD HAVE THE RIGHT TO OBLIGATE THE
COUNTRY FOR NINE BILLION DOLLARS.  WE SUBMIT THAT HE HAS NO GREATER
RIGHT TO EXERCISE THE PLEASURE OF THE UNITED STATES IN REPUDIATING
OBLIGATIONS INCURRED ON THE AUTHORIZATION OF CONGRESS. 

5.  THE PURPORTED CALL ISSUED ON MARCH 14, 1935, WAS VOID BECAUSE
FORBIDDEN BY THE ACT OF MARCH 18, 1869, 16 STAT. 1; 31 U.S.C. SEC.
731. 

THE REASON FOR THE ORIGINAL PASSAGE OF THIS LAW WAS OBVIOUSLY TO
PREVENT THE GOVERNMENT FROM DOING JUST WHAT IT IS ATTEMPTING TO DO NOW
PAYING OFF ITS OBLIGATIONS TO ITS BONDHOLDERS IN A DEPRECIATED
CURRENCY.  UNITED STATES NOTES, OR "GREENBACKS," WERE, OF COURSE, AT A
CONSIDERABLE DISCOUNT FROM GOLD IN 1869, AND WERE NOT REDEEMABLE IN
GOLD OR SILVER COIN AT THAT TIME.  IN ORDER TO PROTECT THE BONDHOLDERS,
CONGRESS PROVIDED THAT NONE OF THE INTEREST-BEARING OBLIGATIONS SHOULD
BE REDEEMED OR PAID BEFORE MATURITY AS LONG AS UNITED STATES NOTES WERE
NOT CONVERTIBLE INTO COIN AT THE OPTION OF THE HOLDER.  NEITHER ON
MARCH 4, 1933, NOR AT ANY SUBSEQUENT DATE HAVE UNITED STATES NOTES BEEN
CONVERTIBLE INTO COIN AT THE OPTION OF THE HOLDER.  THE GOVERNMENT, AND
NOT THE HOLDER, HAS THE OPTION, AND IT MAY PAY OUT CURRENCY OF ANY KIND
FOR ANY UNITED STATES NOTES PRESENTED. 

THE PROVISO AT THE END OF SEC. 731 WAS INTENDED TO PERMIT THE
REDEMPTION OF BONDS SHOULD THE GOVERNMENT BE IN A POSITION TO SELL ITS
BONDS AND RECEIVE GOLD FOR THEM, EVEN THOUGH THEY BEAR A LOWER RATE OF
INTEREST.  IF THE BONDS BEARING A LOWER RATE OF INTEREST CAN ONLY BE
SOLD FOR CURRENCY, THEN NO CALL CAN BE MADE.  IT IS OBVIOUS THAT
GOVERNMENT BONDS, WHEN THIS CALL WAS ISSUED IN 1935, COULD NOT BE SOLD
FOR GOLD COIN.  THERE WAS NO GOLD COIN EXCEPT IN MINOR HOARDS, AND IF
ANYONE COULD LAWFULLY HAVE OBTAINED GOLD, HE WOULD NOT HAVE PAID GOLD
FOR UNITED STATES BONDS, WHETHER ON THEIR FACE THEY WERE PAYABLE IN
GOLD OR IN CURRENCY. 

IT IS SUGGESTED THAT UNITED STATES BONDS MIGHT HAVE BEEN SOLD FOR
SILVER COIN.  OBVIOUSLY THE GOVERNMENT HAS NEVER SOLD BONDS AND
REQUIRED PAYMENT IN SILVER COIN, AND IT IS NOT A PRACTICAL OPERATION. 
AN EXAMINATION OF THE TESTIMONY AND SCHEDULE PRESENTED BY THE TREASURY
SHOWS THAT THE TOTAL AMOUNT OF SILVER COIN IN EXISTENCE IN 1935 WAS
APPROXIMATELY EIGHT HUNDRED FIFTY-NINE MILLION DOLLARS, CONSIDERABLY
LESS THAT THE AMOUNT OF THE FIRST LIBERTY LOAN BONDS CALLED. 
FURTHERMORE, ALL OF THE BULLION AND NEARLY ALL OF THE STANDARD SILVER
DOLLARS WERE IN THE TREASURY ALREADY, AND OF COURSE THE SUBSIDIARY
SILVER COIN NOT IN THE TREASURY, AMOUNTING TO ABOUT $300,000,000, IS
REQUIRED FOR ORDINARY CHANGE THROUGHOUT THE COUNTRY.  FURTHERMORE, THE
SILVER COIN HAS A PURELY FICTITIOUS VALUE IN EXCESS OF THE VALUE OF THE
SILVER CONTAINED IN SUCH COINS, AND IN EFFECT IS NOTHING BUT SUBSIDIARY
CURRENCY.  IN 1869 IT MIGHT HAVE BEEN POSSIBLE FOR THE GOVERNMENT TO
SELL GOLD BONDS AND REQUIRE PAYMENT IN GOLD COIN, THUS OBTAINING THE
GOLD COIN NECESSARY TO REDEEM THE PRIOR ISSUE, BUT SINCE THE VALIDITY
OF THE GOLD CLAUSE IS IN DOUBT, SUCH BONDS CANNOT BE SOLD EITHER FOR
GOLD OR SILVER COIN TODAY.  IN SHORT SEC. 731 WAS INTENDED TO PREVENT
EXACTLY WHAT THE GOVERNMENT IS NOW TRYING TO DO. 

THE BONDHOLDERS REST THEIR CASE UPON A CONTRACTUAL OBLIGATION.  BY
THE TERMS OF THE AGREEMENT BETWEEN THE PARTIES THE OBLIGATION TO PAY
INTEREST UPON THE BONDS WAS SPECIFICALLY TO CEASE UPON THE ISSUANCE OF
A PUBLIC NOTICE CALLING THE BONDS FOR REDEMPTION AND THE PASSAGE OF
TIME TO THE DATE DESIGNATED IN SUCH NOTICE.  SINCE THIS CONDITION HAS
OCCURRED THE CONTRACTUAL OBLIGATION OF THE GOVERNMENT TO PAY INTEREST
HAS TERMINATED. 

THE ISSUANCE OF A NOTICE OF CALL FOR REDEMPTION IN THE USUAL FORM,
OPERATED TO CREATE, AND WAS INTENDED TO CREATE, THE SAME RIGHT TO
PAYMENT ASSURED BY THE BONDS THEMSELVES.  THAT THE CALL WAS EFFECTIVE
TO ENTITLE THE BONDHOLDERS TO DEMAND PAYMENT OF THE PRINCIPAL AMOUNTS
OF THEIR BONDS IS ESTABLISHED BY THE DECISION IN PERRY V. UNITED
STATES, 294 U.S. 330.  BY THE SAME TOKEN THE CALL WAS EFFECTIVE TO
TERMINATE THE OBLIGATION TO PAY INTEREST.  THE SUGGESTION THAT THE
BONDHOLDERS MAY HAVE AN OPTION TO DEMAND PAYMENT OF THE PRINCIPAL OR TO
SUE FOR INTEREST HAS NO BASIS IN THE CONTRACT AND, IF ACCEPTED, WOULD
INTRODUCE CONFUSION IN PUBLIC AND PRIVATE FINANCE.  TERMINATION OF THE
OBLIGATION TO PAY INTEREST WAS NOT CONDITIONED UPON ACTUAL PERFORMANCE
OF THE PRINCIPAL OBLIGATION.  DISTINGUISHING STERLING V. H.F. WATSON
CO., 241 PA. 105.  IMPOSITION OF THIS ADDITIONAL CONDITION BY
IMPLICATION WOULD BE UNWARRANTED BY JUDICIAL AUTHORITY AND WOULD DEFEAT
BY INDIRECTION THE RULE THAT INTEREST IS NOT ALLOWED ON CLAIMS AGAINST
THE GOVERNMENT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION. 

THE TERMS OF THE ACTS OF CONGRESS PURSUANT TO WHICH THE BONDS WERE
ISSUED, AS WELL AS THE BONDS THEMSELVES, ESTABLISH THE AUTHORITY OF THE
SECRETARY OF THE TREASURY TO ISSUE THE NOTICE OF CALL WHICH TERMINATED
THE OBLIGATION TO PAY INTEREST.  THIS AUTHORITY HAS BEEN RECOGNIZED AND
CONFIRMED BY OTHER LEGISLATION OF THE CONGRESS. 

THE ACT OF MARCH 18, 1869, R.S. 3693; 16 STAT. 1, DOES NOT AFFECT THE
VALIDITY OF THE CALLS FOR REDEMPTION.  EXAMINATION OF THE PURPOSES AND
CIRCUMSTANCES SURROUNDING THE ENACTMENT OF THAT STATUTE ESTABLISHES
THAT IT WAS INTENDED TO APPLY ONLY TO GOVERNMENT BONDS THEN OUTSTANDING
AND THAT IT CEASED TO HAVE SIGNIFICANCE WHEN THE GOVERNMENT, IN 1879,
RESUMED SPECIE PAYMENTS ON ITS UNITED STATES NOTES AND MAINTAINED ALL
COINS AND CURRENCIES AT A PARITY OF VALUE.  EVEN IF THE VALIDITY OF THE
CALLS FOR REDEMPTION HERE INVOLVED WERE TO BE TRIED BY THE REQUIREMENTS
OF THAT ACT, HOWEVER, THE CONCLUSION WOULD BE COMPELLED THAT THESE
REQUIREMENTS HAVE BEEN FULLY MET. 

THE CONTENTION THAT THE UNITED STATES HAS FAILED TO TENDER THE
PERFORMANCE DUE UNDER THE BONDS APPEARS TO REST EXCLUSIVELY UPON ITS
REFUSAL TO MAKE PAYMENT IN GOLD DOLLARS, "EACH CONTAINING TWENTY-FIVE
AND EIGHT-TENTHS GRAINS OF GOLD, NINE-TENTHS FINE."  FOR A DOUBLE
REASON THIS CONTENTION CANNOT BE SUPPORTED.  THE GOLD CLAUSE IN THE
PLAINTIFFS' BONDS IS NOT A PROMISE FOR PAYMENT SOLELY IN GOLD COIN, BUT
A PROMISE TO PAY THE VALUE OF GOLD COIN.  PERRY V. UNITED STATES,
SUPRA; FEIST V. SOCIETE INTERCOMMUNALE BELGE D'ELECTRICITE, L.R. (1934)
A.C. 161, 172, 173; R. V. INTERNATIONAL TRUSTEE FOR THE PROTECTION OF
BONDHOLDERS AKT., (1937) 2 ALL ENG. L.R. 164; CASE OF SERBIAN LOANS,
P.C.I.J., SERIES A. NOS. 20-21, PP. 32-41.  COMPARE NORMAN V. BALTIMORE
& OHIO R. CO., 294 U.S. 240, 296, 302; HOLYOKE WATER POWER CO. V.
AMERICAN WRITING PAPER CO., 300 U.S. 324, 336.  UNDER THE PERRY
DECISION, NO CLAIM OF BREACH OF THE BOND IS MAINTAINABLE WHICH DOES NOT
ALLEGE AND PROVE ALSO A FAILURE TO PAY THE EQUIVALENT IN VALUE OF THE
GOLD COIN.  EVEN IF THE GOLD CLAUSE COULD PROPERLY BE CONSTRUED AS
PROMISING PAYMENT IN GOLD COIN ITSELF, HOWEVER, THE PERRY DECISION DOES
NOT WARRANT AN ASSUMPTION THAT THE FAILURE TO MAKE SUCH PAYMENT, UNDER
THE CIRCUMSTANCES THERE AND HERE PRESENTED, WOULD CONSTITUTE A BREACH
OF OBLIGATION.  THE POWER OF THE CONGRESS TO PROHIBIT PAYMENT OF GOLD
COIN FROM THE TREASURY IS AN ESSENTIAL ASPECT OF ITS POWER "TO DEAL
WITH GOLD COIN AS A MEDIUM OF EXCHANGE," AND HAS RECEIVED AMPLE
RECOGNITION IN THE DECISIONS OF THIS COURT.  COMPARE LING SU FAN V.
UNITED STATES, 218 U.S. 302; NORTZ V. UNITED STATES, 294 U.S. 317;
HOLYOKE WATER POWER CO. V. AMERICAN WRITING PAPER CO., SUPRA, AT 336,
337. 

EVEN IF THE BONDHOLDERS WERE IN A POSITION HERE TO URGE THAT THE
FAILURE OF THE UNITED STATES TO PAY THEM A NUMBER OF DOLLARS IN LEGAL
TENDER CURRENCY IN EXCESS OF THE FACE AMOUNT OF THE BONDS CONSTITUTED A
BREACH OF CONTRACT, NO SUCH CONTENTION WOULD BE TENABLE.  THE ASSERTION
OF THE CIRCUIT COURT OF APPEALS IN NO. 198 THAT THE DOLLARS STATED IN
THE BONDS WERE EACH "WORTH" 1.69 DOLLARS IN LEGAL TENDER CURRENCY IS IN
DIRECT CONFLICT WITH THE DECISION OF THIS COURT IN PERRY V. UNITED
STATES, SUPRA, WHICH FLATLY REJECTED ANY METHOD OF COMPUTING
EQUIVALENCE OR WORTH MATHEMATICALLY, IN ACCORDANCE WITH THE RATIOS OF
THE STATUTORY GOLD CONTENT OF THE PAST AND PRESENT DOLLARS, REGARDLESS
OF ACTUAL LOSS.  THE MAINTENANCE OF ALL FORMS OF MONEY AT A PARITY IN
THE ECONOMY OF THE COUNTRY, THIS COURT THERE HELD, PRECLUDED SUCH A
METHOD OF COMPUTATION. 

NOTHING SHORT OF A POSITION OF MATERIAL AND PRESENT DEFAULT ON THE
PART OF THE UNITED STATES WOULD IN ANY EVENT WARRANT THE EFFORT HERE
MADE TO WORK A FORFEITURE OF THE OPTION OF REDEMPTION.  SO LONG AS THE
BONDHOLDERS HAVE BEEN TENDERED THE SUBSTANTIAL EQUIVALENT OF THE
PERFORMANCE DUE, NO EQUITABLE GROUND CAN BE URGED FOR DISREGARDING THE
EXPRESS TERMS OF THE BONDS AND OF THE CALLS FOR REDEMPTION.  NOR DO
INTIMATIONS THAT THE POSITION OF THE UNITED STATES, WHICH UNDER THE
CIRCUMSTANCES NOW EXISTING HAS BEEN HELD TO BE CORRECT, MIGHT UNDER
DIFFERENT CIRCUMSTANCES BE INCORRECT, AFFORD A GROUND IN THESE CASES
FOR FORFEITURE OF ITS OPTION OF REDEMPTION.  IN CLAIMING SUCH A
FORFEITURE, THE BONDHOLDERS ARE, IN EFFECT, INSISTING UPON PAYMENT OF
AN UNCONTEMPLATED PREMIUM, CONSISTING OF THE ADDED CAPITAL VALUE OF
THEIR BONDS UNDER PRESENT RATES OF INTEREST.  ACCEPTANCE OF THEIR
CONTENTION WOULD JEOPARDIZE HUGE SAVINGS OF INTEREST EFFECTED BY
REFUNDING OPERATIONS IN RECENT YEARS.  IN THUS INTERFERING WITH THE
SOUND ADMINISTRATION OF THE PUBLIC DEBT, IT WOULD TEND TO RESTRICT THE
VERY POWER WHICH - IN THE OPINION IN THE PERRY CASE UPON WHICH THE
BONDHOLDERS RELY - IT WAS DEEMED NECESSARY TO PROTECT. 

THE BONDHOLDERS MISINTERPRET THE STATEMENTS IN THE OPINION DELIVERED
BY THE CHIEF JUSTICE IN THE PERRY CASE REFLECTING UPON THE
CONSTITUTIONALITY OF THE JOINT RESOLUTION OF JUNE 5, 1933.  IF THOSE
STATEMENTS MEAN THAT BORROWING CONTRACTS OF THE UNITED STATES MAY NOT
IN ANY FASHION BE AFFECTED BY A SUBSEQUENT EXERCISE BY CONGRESS OF THE
MONETARY POWER, THEY SHOULD BE RECONSIDERED, SINCE BY THE SETTLED
DOCTRINES OF THIS COURT THEY WERE NOT MADE UNDER SUCH CIRCUMSTANCES AS
TO CONSTITUTE A PRECEDENT.  ALASKA V. TROY, 258 U.S. 101, 111.  COMPARE
CITY OF NEW YORK V. MILN, 8 PET. 120; UNITED STATES V. CELESTE MACARTY
ET AL., ARCHIVES, DECEMBER TERM, 1851, P. 199.  SEE ALSO MYERS V.
UNITED STATES, 272 U.S. 52, 142; LIVERPOOL, N.Y. & P.S.S. CO. V.
COMMISSIONERS OF EMIGRATION, 113 U.S. 33, 39; UNITED STATES V.
HASTINGS, 296 U.S. 188, 192, 193.  THE PRINCIPLE THAT GOVERNMENTAL
ACTION TAKEN IN PURSUANCE OF SOVEREIGN GOVERNMENTAL POWERS MAY AFFECT
RIGHTS ARISING OUT OF TRANSACTIONS ENTERED INTO BETWEEN THE GOVERNMENT
AND PRIVATE INDIVIDUALS MAY JUSTLY BE CONSIDERED A POSTULATE OF
AMERICAN PUBLIC LAW.  IT SEEMS CLEAR, HOWEVER, THAT THE STATEMENTS IN
QUESTION WERE MADE IN ANSWER TO A CONTENTION, WHICH THE GOVERNMENT WAS
UNDERSTOOD AS MAKING, IMPORTING THAT CONGRESS IS FREE TO DISREGARD THE
OBLIGATIONS OF THE GOVERNMENT AT ITS DISCRETION.  THE GOVERNMENT IS
BOUND, UNDER THE LAW, UPON ITS CONTRACTS AS INDIVIDUALS ARE BOUND.  FAR
FROM ASSERTING THAT GOVERNMENT CONTRACTS MAY NOT BE AFFECTED AS
INDIVIDUAL CONTRACTS ARE AFFECTED BY A SUBSEQUENT EXERCISE OF GENERAL
LEGISLATIVE POWER, THE OPINION DELIVERED BY THE CHIEF JUSTICE
RECOGNIZES AND REAFFIRMS THE PRINCIPLE THAT THEY MAY BE SO AFFECTED. 

I. THE RESPONDENT IN THE CASE AT BAR IS SUING ON A COUPON AND HE HAS
NOT ASKED FOR "AN AMOUNT IN LEGAL TENDER CURRENCY IN EXCESS OF THE FACE
AMOUNT OF THE" COUPON.  HE IS NOT SUING FOR ANY DAMAGES CAUSED BY THE
REFUSAL OF THE GOVERNMENT TO PAY THE BOND IN GOLD ON THE REDEMPTION
DATE; NOR IS HE ASKING FOR ANY DAMAGES CAUSED BY THE REFUSAL TO PAY THE
COUPON IN GOLD RATHER THAN IN OTHER CURRENCY.  IF THE RESPONDENT WERE
DEMANDING $29.57 IN LEGAL TENDER CURRENCY, THE PERRY CASE MIGHT BE IN
POINT, BUT SINCE HE IS DEMANDING ONLY $17.50, IT IS CLEARLY NOT IN
POINT.  THIS COURT DECIDED THAT INASMUCH AS PERRY HAD ELECTED TO
SURRENDER HIS BOND AND SUE FOR DAMAGES FOR BREACH OF CONTRACT, BUT HAD
FAILED TO PROVE DAMAGE, HE COULD NOT RECOVER.  THIS COURT DID NOT
DECIDE THAT PERRY'S ONLY REMEDY WAS TO SURRENDER HIS BOND AND SUE FOR
DAMAGES FOR BREACH OF CONTRACT.  THE QUESTION WHETHER THE OBLIGATION OF
THE UNITED STATES TO PAY INTEREST CEASED UPON THE GIVING OF A NOTICE OF
REDEMPTION WITHOUT ANY INTENTION TO PAY IN GOLD WAS NOT CONSIDERED BY
THE COURT.  THE ONLY PROVISION OF THE BOND CONSTRUED BY THE COURT WAS
THE CLAUSE REQUIRING PAYMENT IN GOLD.  THE CLAUSES AS TO THE PAYMENT OF
INTEREST, THE MEANING OF WHICH IS HERE PRESENTED TO THE COURT FOR
DETERMINATION, WERE NOT EVEN QUOTED OR REFERRED TO IN THE OPINION OF
THE COURT IN THE PERRY CASE, MUCH LESS CONSTRUED BY IT. 

IF PAYMENT IN GOLD OR AN HONEST INTENTION TO PAY IN GOLD, WAS A
CONDITION PRECEDENT TO REDEMPTION, AND WE STRONGLY CONTEND THAT IT WAS,
THEN THE RESPONDENT HAD A RIGHT TO REFUSE TO SURRENDER HIS BOND EXCEPT
UPON A STRICT COMPLIANCE WITH THAT CONDITION AND THE QUESTION AS TO
WHETHER OR NOT THE FAILURE TO COMPLY THEREWITH CAUSED HIM DAMAGE WAS
ENTIRELY IMMATERIAL. 

THE GOVERNMENT RESERVED TO ITSELF AN OPTION TO REDEEM ITS LIBERTY
BONDS PRIOR TO MATURITY.  IT GAVE NOTICE THAT IT WOULD REDEEM, NOT IN
ACCORDANCE WITH ITS CONTRACT, BUT ON ITS OWN TERMS.  THE PLAINTIFF IN
THE PERRY CASE ELECTED TO TREAT THE GOVERNMENT AS HAVING EXERCISED ITS
OPTION AND SUED FOR DAMAGES FOR ITS FAILURE TO DO SO IN ACCORDANCE WITH
THE TERMS OF ITS CONTRACT.  THE RESPONDENT, ON THE OTHER HAND, AS WE
CONTEND HE HAD EVERY RIGHT TO DO, ELECTED TO TREAT THE GOVERNMENT AS
HAVING FAILED TO EXERCISE ITS OPTION.  THE TWO CASES ARE MANIFESTLY
QUITE DIFFERENT. 

THE CONTRACT IS GOVERNED BY THE ORDINARY LEGAL PRINCIPLES.  THE ONLY
SUBSTANTIAL QUESTION IN THIS CASE ARISES OUT OF THE INTERPRETATION OF
THE CONTRACT IN SUIT AND FOR THAT REASON IT IS NECESSARY TO KEEP ALWAYS
IN MIND THREE IMPORTANT AND FUNDAMENTAL RULES OF CONSTRUCTION. 

FIRST, THE CONTRACT SHOULD BE SO CONSTRUED AS TO EFFECTUATE ITS
GENERAL PURPOSE, TO GIVE EFFECT TO THE INTENTION OF THE PARTIES, AND TO
GIVE THEIR ORDINARY MEANING TO THE WORDS USED. 

SECOND, IN CASES OF AMBIGUITY, A CONTRACT SHOULD BE MOST STRONGLY
CONSTRUED AGAINST ITS AUTHOR. 

THIRD, WHEN CONTRACTS ARE OPTIONAL IN RESPECT TO ONE PARTY, THEY ARE
STRICTLY CONSTRUED IN FAVOR OF THE PARTY BOUND AND AGAINST THE PARTY
WHO IS NOT BOUND. 

THE POWER OF THE UNITED STATES TO ISSUE CALLABLE BONDS OR OTHERWISE
MANAGE THE PUBLIC DEBT IS NOT AT ISSUE. 

II.  THE RIGHT TO REDEEM DEPENDED UPON THE PERFORMANCE OF TWO
CONDITIONS, NEITHER OF WHICH WAS IN FACT PERFORMED, ALTHOUGH STRICT
PERFORMANCE OF EACH WAS REQUIRED. 

AN EXACT COMPLIANCE WITH THE CONDITIONS ATTACHED TO A RIGHT OF
REDEMPTION IS NECESSARY. 

AS SAID BY THIS COURT IN THE PERRY CASE "THE TERMS OF THE BOND ARE
EXPLICIT" (294 U.S. 348).  IT PROVIDES:  "THE PRINCIPAL AND INTEREST OF
THIS BOND SHALL BE PAYABLE IN UNITED STATES GOLD COIN OF THE PRESENT
STANDARD OF VALUE."  THE STATUTE PURSUANT TO WHICH THE BONDS WERE
ISSUED (40 STAT. 35) AND THE GENERAL LAW (U.S.C., TIT. 31, SEC. 768)
LIKEWISE REQUIRED PAYMENT OF BOTH PRINCIPAL AND INTEREST IN GOLD COIN. 

THE PROVISIONS OF THE BOND REMAIN UNALTERED BY THE JOINT RESOLUTION
OF JUNE 5, 1933, AND THE UNITED STATES ARE CLEARLY OBLIGATED TO PAY THE
RESPONDENT $1,000.00 IN GOLD COIN IN ORDER TO REDEEM HIS BOND. 

THE PROVISION REQUIRING THE GIVING OF A NOTICE OF REDEMPTION WAS THE
CONDITION PRECEDENT.  THE REQUIREMENT THAT THE PRINCIPAL BE PAID IN
GOLD COIN WAS THE CONCURRENT CONDITION.  UNDER THE RULE LAID DOWN BY
THE CASES STRICT COMPLIANCE WITH BOTH CONDITIONS WAS REQUIRED.  BUT THE
FACT IS THAT THERE WAS COMPLIANCE WITH NEITHER CONDITION. 
CONSEQUENTLY, THE RESPONDENT'S BOND WAS NOT REDEEMED ON JUNE 15, 1935. 

THE NOTICE ISSUED ON MARCH 14, 1935, WAS NOT A VALID AND BONA FIDE
NOTICE SUCH AS WAS CONTEMPLATED IN THE BOND. 

THE INTEREST COUPONS DID NOT BECOME VOID EXCEPT UPON ACTUAL
REDEMPTION OF THE BOND BY PAYMENT IN GOLD COIN. 

THE QUESTION OF WHETHER OR NOT THE RESPONDENT WOULD SUSTAIN ANY
DAMAGE BY REASON OF THE REFUSAL OF THE UNITED STATES TO PAY THE BOND IN
GOLD COIN IS ENTIRELY IMMATERIAL. 

III.  REGARDLESS OF WHETHER THE RESPONDENT'S BOND BE CONSTRUED AS A
"GOLD COIN" CONTRACT OR AS A "GOLD VALUE" CONTRACT, PAYMENT OF THE
PRINCIPAL, DOLLAR FOR DOLLAR, IN LEGAL TENDER CURRENCY, WOULD NOT BE A
FULFILLMENT OF THE OBLIGATION. 

PAYMENT IN GOLD COIN IS REQUIRED. 

EVEN IF IT BE ASSUMED THAT THE GOLD CLAUSE IS A "GOLD VALUE"
CONTRACT, THE BURDEN IS UPON THE GOVERNMENT TO PROVE THAT IT HAS
TENDERED THE EQUIVALENT OF THE GOLD COIN, AND THIS IT HAS NOT DONE. 

IV.  THE JOINT RESOLUTION OF JUNE 5, 1933, WAS UNCONSTITUTIONAL IN SO
FAR AS IT ATTEMPTED TO OVERRIDE THE OBLIGATION CREATED BY LIBERTY LOAN
BONDS. 

OPINION OF THE COURT BY MR. JUSTICE CARDOZO, ANNOUNCED BY THE CHIEF
JUSTICE. 

THREE CASES PRESENT A SINGLE QUESTION:  WAS A NOTICE OF CALL ISSUED
BY THE SECRETARY OF THE TREASURY FOR THE REDEMPTION OF LIBERTY LOAN
BONDS EFFECTIVE TO TERMINATE THE RUNNING OF INTEREST ON THE BONDS FROM
THE DESIGNATED REDEMPTION DATE? 

PETITIONER IN NO. 42 IS THE OWNER OF A $10,000 FIRST LIBERTY LOAN 3
1/2% BOND OF 1932-1947, SERIAL NUMBER 6670.  THE BOND WAS ISSUED
PURSUANT TO THE ACT OF APRIL 24, 1917(40 STAT. 35), AND TREASURY
DEPARTMENT CIRCULAR NO. 78, DATED MAY 14, 1917, AND WAS PURCHASED BY
PETITIONER IN DECEMBER, 1934, FOR $10,362.50 AND ACCRUED INTEREST.  ITS
PROVISIONS, SO FAR AS MATERIAL, READ AS FOLLOWS: 

"THE UNITED STATES OF AMERICA FOR VALUE RECEIVED PROMISES TO PAY TO
THE BEARER THE SUM OF TEN THOUSAND DOLLARS ON THE 15TH DAY OF JUNE,
1947, WITH INTEREST AT THE RATE OF THREE AND ONE-HALF PER CENTUM PER
ANNUM PAYABLE SEMI-ANNUALLY ON DECEMBER 15 AND JUNE 15 IN EACH YEAR
UNTIL THE PRINCIPAL HEREOF SHALL BE PAYABLE, UPON PRESENTATION AND
SURRENDER OF THE INTEREST COUPONS HERETO ATTACHED AS THEY SEVERALLY
MATURE.  THE PRINCIPAL AND INTEREST OF THIS BOND SHALL BE PAYABLE IN
UNITED STATES GOLD COIN OF THE PRESENT STANDARD OF VALUE,  ...  ALL OR
ANY OF THE BONDS OF THE SERIES OF WHICH THIS IS ONE MAY BE REDEEMED AND
PAID AT THE PLEASURE OF THE UNITED STATES ON OR AFTER JUNE 15, 1932, OR
ON ANY SEMI-ANNUAL INTEREST PAYMENT DATE OR DATES, AT THE FACE VALUE
THEREOF AND INTEREST ACCRUED AT THE DATE OF REDEMPTION, ON NOTICE
PUBLISHED AT LEAST THREE MONTHS PRIOR TO THE REDEMPTION DATE, AND
PUBLISHED THEREAFTER FROM TIME TO TIME DURING SAID THREE MONTHS PERIOD
AS THE SECRETARY OF THE TREASURY SHALL DIRECT....  FROM THE DATE OF
REDEMPTION DESIGNATED IN ANY SUCH NOTICE INTEREST ON THE BONDS CALLED
FOR REDEMPTION SHALL CEASE, AND ALL COUPONS THEREON MATURING AFTER SAID
DATE SHALL BE VOID...." 

ON MARCH 14, 1935, THE SECRETARY OF THE TREASURY PUBLISHED A NOTICE
OF CALL FOR THE REDEMPTION ON JUNE 15, 1935, OF ALL THE BONDS SO
ISSUED.  "PUBLIC NOTICE IS HEREBY GIVEN: 

1.  ALL OUTSTANDING FIRST LIBERTY LOAN BONDS OF 1932-47 ARE HEREBY
CALLED FOR REDEMPTION ON JUNE 15, 1935.  THE VARIOUS ISSUES OF FIRST
LIBERTY LOAN BONDS (ALL OF WHICH ARE INCLUDED IN THIS CALL) ARE AS
FOLLOWS: 

FIRST LIBERTY LOAN 3 1/2 PERCENT BONDS OF 1932-47(FIRST 3 1/2'S),
DATED JUNE 15, 1917;... 

2.  INTEREST ON ALL SUCH OUTSTANDING FIRST LIBERTY LOAN BONDS WILL
CEASE ON SAID REDEMPTION DATE, JUNE 15, 1935." 

THEREAFTER, ON APRIL 22, 1935, THE SECRETARY OF THE TREASURY ISSUED A
CIRCULAR (DEPARTMENT CIRCULAR, NO. 535) PRESCRIBING RULES FOR THE
REDEMPTION OF FIRST LIBERTY LOAN BONDS, AND PROVIDING, AMONG OTHER
THINGS, AS FOLLOWS:  "HOLDERS OF ANY OUTSTANDING FIRST LIBERTY LOAN
BONDS WILL BE ENTITLED TO HAVE SUCH BONDS REDEEMED AND PAID AT PAR ON
JUNE 15, 1935, WITH INTEREST IN FULL TO THAT DATE.  AFTER JUNE 15,
1935, INTEREST WILL NOT ACCRUE ON ANY FIRST LIBERTY LOAN BONDS." 

NEARLY TWO YEARS BEFORE THE PUBLICATION OF THE NOTICE OF CALL
CONGRESS HAD ADOPTED THE JOINT RESOLUTION OF JUNE 5, 1933(48 STAT. 112)
BY WHICH EVERY OBLIGATION PURPORTING TO BE PAYABLE IN GOLD OR A
PARTICULAR KIND OF COIN OR CURRENCY, OR IN AN AMOUNT IN MONEY OF THE
UNITED STATES MEASURED THEREBY, WAS TO BE DISCHARGED UPON PAYMENT,
DOLLAR FOR DOLLAR, IN ANY COIN OR CURRENCY WHICH AT THE TIME OF PAYMENT
WAS LEGAL TENDER FOR PUBLIC AND PRIVATE DEBTS.  NEARLY FOUR WEEKS
BEFORE THE PUBLICATION OF THE NOTICE OF CALL, THE VALIDITY OF THAT
JOINT RESOLUTION HAD BEEN THE SUBJECT OF ADJUDICATION BY THIS COURT IN
THE GOLD CLAUSE CASES, NORMAN V. BALTIMORE & OHIO R. CO., 294 U.S. 240,
NORTZ V. UNITED STATES, 294 U.S. 317, AND PERRY V. UNITED STATES, 294
U.S. 330, ALL DECIDED FEBRUARY 18, 1935.  WE MAY PRESUME THAT THE CALL
WAS ISSUED WITH KNOWLEDGE OF THOSE RULINGS. 

ABOUT SIX MONTHS AFTER THE DATE DESIGNATED FOR REDEMPTION,
PETITIONER, ON DECEMBER 28, 1935, PRESENTED HIS BOND (WITH COUPONS DUE
ON AND BEFORE JUNE 15, 1935, DETACHED) TO THE TREASURER OF THE UNITED
STATES, AND DEMANDED THE REDEMPTION BY THE PAYMENT OF 10,000 GOLD
DOLLARS EACH CONTAINING 25.8 GRAINS OF GOLD NINE-TENTHS FINE, WHICH WAS
THE GOLD CONTENT OF A DOLLAR IN 1917.  THE TREASURER REFUSED TO COMPLY
WITH THAT DEMAND, BUT OFFERED PAYMENT OF THE FACE AMOUNT OF THE
PRINCIPAL IN LEGAL TENDER COIN OR CURRENCY OTHER THAN GOLD OR GOLD
CERTIFICATES.  PETITIONER DECLINED TO ACCEPT THE TENDER AND RETAINED
THE BOND.  THEREAFTER, ON THE SAME DAY, PETITIONER PRESENTED TO THE
TREASURER OF THE UNITED STATES, THE INTEREST COUPON FOR THE SIX MONTHS
PERIOD JUNE 15 TO DECEMBER 15, 1935, AND DEMANDED PAYMENT EITHER IN
GOLD COIN OR LEGAL TENDER CURRENCY.  THE TREASURER REFUSED PAYMENT ON
THE GROUND THAT THE BOND TO WHICH THE COUPON WAS ATTACHED HAD BEEN
CALLED FOR REDEMPTION ON JUNE 15, 1935. 

AN ACTION FOLLOWED IN THE COURT OF CLAIMS, PETITIONER RESTING HIS
CLAIM UPON THE INTEREST COUPON ONLY, AND LIMITING HIS DEMAND TO A
RECOVERY IN CURRENT DOLLARS.  FN1  THE COURT GAVE JUDGMENT FOR THE
UNITED STATES ON THE GROUND THAT ON THE DESIGNATED REDEMPTION DATE, ALL
COUPONS FOR LATER INTEREST BECAME VOID.  BECAUSE OF THE IMPORTANT
INTERESTS, PUBLIC AND PRIVATE, AFFECTED BY THE JUDGMENT, A WRIT OF
CERTIORARI WAS GRANTED BY THIS COURT. 

PETITIONER IN NO. 43 IS THE OWNER OF A $50 FOURTH LIBERTY LOAN 4 1/2%
BOND OF 1933-1938, WHICH IT BOUGHT ON MARCH 9, 1935.  THE BOND WAS
ISSUED PURSUANT TO THE ACT OF SEPTEMBER 24, 1917(40 STAT. 288) AS
AMENDED, AND TREASURY DEPARTMENT CIRCULAR, NO. 121.  IT WAS TO MATURE
ON OCTOBER 15, 1938, SUBJECT, HOWEVER, TO REDEMPTION ON OCTOBER 15,
1933 OR LATER.  THE TERMS OF REDEMPTION ARE STATED IN CIRCULAR NO. 121,
WHICH IS INCORPORATED BY REFERENCE INTO THE BOND ITSELF.  SIX MONTHS
NOTICE BY THE SECRETARY OF THE TREASURY WAS REQUIRED, "FROM THE DATE OF
REDEMPTION DESIGNATED IN ANY SUCH NOTICE, INTEREST ON BONDS CALLED FOR
REDEMPTION SHALL CEASE."  ON OCTOBER 12, 1933, THE SECRETARY OF THE
TREASURY PUBLISHED A NOTICE OF CALL FOR REDEMPTION ON APRIL 15, 1934,
OF CERTAIN BONDS OF THIS ISSUE.  THE BOND NOW OWNED BY PETITIONER IS
ONE OF THEM.  THERE WERE TENDERS AND REFUSALS SIMILAR TO THOSE
DESCRIBED ALREADY IN THE STATEMENT OF THE OTHER CASE.  AN ACTION
FOLLOWED IN THE COURT OF CLAIMS.  PETITIONER PRAYED FOR JUDGMENT IN THE
SUM OF $1.07, THE AMOUNT OF THE INTEREST COUPON FOR THE SIX MONTHS
PERIOD ENDING OCTOBER 15, 1934.  FN2  THE COURT DISMISSED THE CLAIM AND
THE CASE IS HERE ON CERTIORARI. 

RESPONDENT IN NO. 198 IS THE OWNER OF A $1,000 FIRST LIBERTY LOAN 3
1/2% BOND OF 1932-1947, NO. 47084, PURCHASED ON MARCH 22, 1933, FOR
$1,011.25.  THIS IS THE SAME BOND ISSUE INVOLVED AND DESCRIBED IN NO.
42.  RESPONDENT DID NOT PRESENT HIS BOND FOR PAYMENT EITHER ON THE
REDEMPTION DATE OR LATER.  HE DID NOT PRESENT THE COUPON WHICH IS THE
FOUNDATION OF THE SUIT.  HOWEVER, THE FACT IS STIPULATED THAT THE
TREASURER OF THE UNITED STATES AND OTHER FISCAL AGENTS HAVE NOT AT ANY
TIME BEEN DIRECTED BY THE SECRETARY OF THE TREASURY TO REDEEM THE BONDS
IN GOLD COIN, BUT HAVE BEEN AUTHORIZED AND DIRECTED TO REDEEM IN LEGAL
TENDER CURRENCY.  THE FACT IS ALSO STIPULATED THAT THERE WAS A REFUSAL
TO PAY SIMILAR COUPONS FOR INTEREST ACCRUING AFTER THE DATE OF
REDEMPTION.  RESPONDENT BROUGHT SUIT UPON HIS COUPON IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND.  THE DISTRICT COURT
GAVE JUDGMENT IN FAVOR OF THE UNITED STATES.  THE COURT OF APPEALS FOR
THE FOURTH CIRCUIT REVERSED AND ORDERED A NEW TRIAL (87 F.(2D) 594),
DECLINING TO FOLLOW THE RULING WHICH HAD BEEN MADE BY THE COURT OF
CLAIMS.  THE CASE IS HERE ON CERTIORARI ON THE PETITION OF THE
GOVERNMENT. 

HEREAFTER, FOR CONVENIENCE OF REFERENCE, THE BONDHOLDER IN EACH OF THE
THREE CASES WILL BE SPOKEN OF AS A "PETITIONER," WITHOUT ADVERTING TO
THE FACT THAT IN ONE OF THEM (NO. 198) HE IS ACTUALLY A RESPONDENT. 

FIRST.  THE SO-CALLED REDEMPTION PROVISIONS OF THE BONDS ARE
PROVISIONS FOR THE ACCELERATION OF MATURITY AT THE PLEASURE OF THE
GOVERNMENT, AND UPON PUBLICATION OF THE NOTICE OF CALL FOR THE PERIOD
STATED IN THE BONDS THE NEW DATE BECAME SUBSTITUTED FOR THE OLD ONE AS
IF THERE FROM THE BEGINNING. 

THE CONTRACT IS EXPLICIT.  "FROM THE DATE OF REDEMPTION DESIGNATED IN
ANY SUCH NOTICE INTEREST ON THE BONDS CALLED FOR REDEMPTION SHALL
CEASE, AND ALL COUPONS THEREON MATURING AFTER SAID DATE SHALL BE
VOID."  THE CONTRACT IS NOT TO THE EFFECT THAT INTEREST SHALL CEASE
UPON OR AFTER PAYMENT.  CF. STERLING V. H.F. WATSON CO., 241 PA. 105,
110; 88 ATL. 297.  THE CONTRACT IS THAT INTEREST SHALL CEASE UPON THE
DATE "DESIGNATED" FOR PAYMENT.  THE RULE IS ESTABLISHED THAT IN THE
ABSENCE OF CONTRACT OR STATUTE EVINCING A CONTRARY INTENTION, INTEREST
DOES NOT RUN UPON CLAIMS AGAINST THE GOVERNMENT EVEN THOUGH THERE HAS
BEEN DEFAULT IN THE PAYMENT OF THE PRINCIPAL.  U.S. EX REL. ANGARICA V.
BAYARD, 127 U.S. 251; UNITED STATES V. NORTH CAROLINA, 136 U.S. 211;
UNITED STATES V. NORTH AMERICAN T. & T. CO., 253 U.S. 330, 336;
SEABOARD AIR LINE RY. V. UNITED STATES, 261 U.S. 299, 304.  THE
ALLOWANCE OF INTEREST IN EMINENT DOMAIN CASES IS ONLY AN APPARENT
EXCEPTION, WHICH HAS ITS ORIGIN IN THE CONSTITUTION.  SHOSHONE TRIBE V.
UNITED STATES, 299 U.S. 476, 497; UNITED STATES V. ROGERS, 255 U.S.
163, 169.  IF THE BONDS IN SUIT HAD MATURED AT THE DATE OF NATURAL
EXPIRATION, INTEREST WOULD AUTOMATICALLY HAVE ENDED, WHETHER THE BONDS
WERE PAID OR NOT.  MATURITY AT A DIFFERENT AND ACCELERATED DATE DOES
NOT MAKE THE OBLIGATION GREATER.  IN THE ONE CASE AS IN THE OTHER THE
INTEREST OBLIGATION ENDS, AND THIS FOR THE SIMPLE REASON THAT THE
CONTRACT SAYS THAT IT SHALL END.  UPON NON-PAYMENT OF PRINCIPAL AT THE
ORIGINAL MATURITY, THE BONDHOLDER, IF UNPAID, HAS A REMEDY BY SUIT TO
RECOVER PRINCIPAL, WITH INTEREST THEN OVERDUE, BUT NOT INTEREST
THEREAFTER.  UPON NON-PAYMENT OF PRINCIPAL AT THE ACCELERATED DATE, HE
HAS A LIKE REMEDY, BUT NO OTHER.  DEFAULT, IF THERE HAS BEEN ANY, IS AS
INEFFECTIVE IN ONE SITUATION AS IN THE OTHER TO KEEP INTEREST ALIVE. 

PETITIONERS INSIST, HOWEVER, THAT THE NOTICES OF CALL WERE NOT
ADEQUATE TO ACCELERATE MATURITY, WITH THE RESULT THAT INTEREST
CONTINUED AS IF NOTICE HAD NOT BEEN GIVEN.  THIS SURELY IS NOT SO IF WE
LOOK TO FORM ALONE AND PUT EXTRINSIC FACTS ASIDE.  "ALL OUTSTANDING
FIRST LIBERTY LOAN BONDS OF 1932-47 ARE HEREBY CALLED FOR REDEMPTION ON
JUNE 15, 1935."  "ALL OUTSTANDING FOURTH LIBERTY LOAN 4 1/4 PER CENT
BONDS OF 1933-38, HEREINAFTER REFERRED TO AS FOURTH 4 1/4'S, BEARING
THE SERIAL NUMBERS WHICH HAVE BEEN DETERMINED BY LOT IN THE MANNER
PRESCRIBED BY THE SECRETARY OF THE TREASURY, ARE CALLED FOR REDEMPTION
ON APRIL 15, 1934, AS FOLLOWS," (THE SERIAL NUMBERS BEING THEREUPON
STATED).  NOTHING COULD BE SIMPLER, NOTHING MORE CLEARLY ADEQUATE,
UNLESS THE NOTICES ARE TO BE SUPPLEMENTED BY RESORT TO EXTRINSIC FACTS,
THE SUBJECT OF JUDICIAL NOTICE, WHICH NEUTRALIZE THEIR TERMS. 
PETITIONERS MAINTAIN THAT SUCH EXTRINSIC FACTS EXIST.  IN THEIR VIEW,
EACH OF THE TWO FORMS OF NOTICE MUST BE READ AS IF IT INCORPORATED
WITHIN ITSELF THE JOINT RESOLUTION OF JUNE 5, 1933, AND PROMISED
PAYMENT IN THE MANNER CALLED FOR BY THAT RESOLUTION, AND NOT IN ANY
OTHER WAY.  THUS SUPPLEMENTED, WE ARE TOLD, THE NOTICE IS A NULLITY,
FOR THE PAYMENT THAT IT PROMISES IS NOT THE PAYMENT OWING UNDER THE
LETTER OF THE BOND. 

THE NOTICE OF CALL FOR THE REDEMPTION OF THE BONDS WAS A NOTICE, NOT
A PROMISE.  THE SECRETARY OF THE TREASURY WAS NOT UNDER A DUTY TO MAKE
ANY PROMISE AS TO THE MEDIUM OF PAYMENT.  HE DID NOT UNDERTAKE TO MAKE
ANY.  THE OBLIGATION DEVOLVING UPON THE UNITED STATES AT THE DESIGNATED
DATE WAS MEASURED BY THE LAW, AND THE LAW INCLUDES THE CONSTITUTION AS
WELL AS STATUTES AND RESOLUTIONS.  THE MEDIUM OF PAYMENT LAWFUL AT THE
TIME OF ISSUING THE CALL MIGHT BE DIFFERENT FROM THAT PREVAILING AT THE
ACCELERATED MATURITY.  THIS MIGHT HAPPEN AS A CONSEQUENCE OF AN
AMENDMENT OF THE STATUTE.  IT MIGHT HAPPEN THROUGH JUDICIAL DECISIONS
ADJUDGING A STATUTE VALID AND EQUALLY THROUGH JUDICIAL DECISIONS
ADJUDGING A STATUTE VOID.  THE INTERVAL BETWEEN NOTICE AND REDEMPTION
WAS THREE MONTHS IN THE CASE OF THE FIRST LIBERTY BONDS; IT WAS SIX
MONTHS FOR THE FOURTH.  THE SECRETARY OF THE TREASURY UNDERSTOOD THESE
POSSIBILITIES WHEN HE SENT OUT HIS NOTICES FOR THE REDEMPTION OF THE
BONDS IN SUIT.  INDEED, PERRY V. UNITED STATES, SUPRA, HAD ALREADY BEEN
DECIDED WHEN BONDS OF THE FIRST LIBERTY ISSUE WERE MADE THE SUBJECT OF
HIS CALL.  IN EACH FORM OF NOTICE THE IMPLICATIONS OF THE CALL ARE
CLEAR.  WHAT THE BONDHOLDERS WERE TOLD WAS NEITHER MORE NOR LESS THAN
THIS, THAT AT THE ACCELERATED MATURITY THEY WOULD BE ENTITLED TO
PAYMENT IN SUCH FORM AND IN SUCH MEASURE AS WOULD DISCHARGE THE
OBLIGATION.  THE SECRETARY'S BELIEFS OR EXPECTATIONS AS TO WHAT THE
PROPER FORM OR MEASURE WOULD BE AT THE APPOINTED TIME ARE OF NO
CONTROLLING IMPORTANCE, EVEN IF THEY WERE SHOWN.  THE OBLIGATION WAS
NOT HIS; IT WAS THAT OF THE UNITED STATES.  HIS OWN BELIEFS AND
EXPECTATIONS AND EVEN THOSE OF THE GOVERNMENT MIGHT BE CHANGED OR
FRUSTRATED BY SUBSEQUENT EVENTS.  THE BONDHOLDERS HAD THE ASSURANCE
THAT THE BONDS WOULD BE REDEEMED, AND THEY WERE ENTITLED TO NO OTHER. 
WHATEVER MEDIUM OF PAYMENT WOULD DISCHARGE THE OBLIGATION IF MATURITY
HAD BEEN ATTAINED THROUGH THE NATURAL LAPSE OF TIME WOULD DISCHARGE IT
AS COMPLETELY AT AN ACCELERATED MATURITY.  THE SAME MONEY THAT WOULD
"PAY" WOULD SERVE ALSO TO "REDEEM."  THERE IS NO REASON TO BELIEVE THAT
THE ONE SITUATION WAS DISTINGUISHED FROM THE OTHER IN THE MINDS OF THE
CONTRACTING PARTIES.  THE SUM TOTAL OF EXISTING LAW - CONSTITUTION AND
STATUTES AND EVEN CONTROLLING DECISIONS, IF THERE WERE ANY - WOULD SAY
HOW MUCH WAS DUE. 

IF THIS ANALYSIS IS SOUND, IT CARRIES WITH IT THE CONCLUSION THAT THE
CALL DID NOT COMMIT THE GOVERNMENT EITHER EXPRESSLY OR BY INDIRECTION
TO A FORBIDDEN MEDIUM OF PAYMENT.  THE CASE FOR THE PETITIONERS, IF
VALID, MUST REST UPON SOME OTHER BASIS.  A SUGGESTED BASIS IS THAT THE
EXISTENCE OF THE JOINT RESOLUTION AMOUNTED WITHOUT MORE TO AN
ANTICIPATORY BREACH, WHICH MADE THE NOTICE OF REDEMPTION VOID FROM ITS
INCEPTION, IF THERE WAS AN ELECTION SO TO TREAT IT, AND THIS THOUGH THE
NOTICE LEFT THE MEDIUM OF PAYMENT OPEN.  BUT THE RULE OF LAW IS SETTLED
THAT THE DOCTRINE OF ANTICIPATORY BREACH HAS IN GENERAL NO APPLICATION
TO UNILATERAL CONTRACTS, AND PARTICULARLY TO SUCH CONTRACTS FOR THE
PAYMENT OF MONEY ONLY.  ROEHM V. HORST, 178 U.S. 1, 17; NICHOLS V.
SCRANTON STEEL CO., 137 N.Y. 471, 487; 33 N.E. 561; KELLY V. SECURITY
MUTUAL LIFE INS. CO., 186 N.Y. 16; 78 N.E. 584; WILLISTON, CONTRACTS,
REV. ED., VOL. 5, SEC. 1328; RESTATEMENT, CONTRACTS, SECS. 316, 318. 
WHATEVER EXCEPTIONS HAVE BEEN RECOGNIZED DO NOT TOUCH THE CASE AT
HAND.  NEW YORK LIFE INS. CO. V. VIGLAS, 297 U.S. 672, 679, 680. 
MOREOVER, AN ANTICIPATORY BREACH, IF IT WERE MADE OUT, COULD HAVE NO
EFFECT UPON THE RIGHT OF THE COMPLAINING BONDHOLDERS TO POSTPONE THE
TIME OF PAYMENT TO THE DATE OF NATURAL MATURITY.  THE SOLE EFFECT, IF
ANY, WOULD BE TO CLOTHE THEM WITH A PRIVILEGE TO DECLARE PAYMENT
OVERDUE, WHICH IS PRECISELY THE RESULT THAT THEY ARE SEEKING TO AVOID. 
THE CONCLUSION THEREFORE FOLLOWS THAT FOR THE PURPOSE OF THE PRESENT
CONTROVERSY THE BREACH WOULD BE IMMATERIAL EVEN IF IT WERE NOT UNREAL. 
BUT ITS UNREALITY IS THE FEATURE WE PREFER TO DWELL UPON.  THE
GOVERNMENT WAS NOT SUBJECT TO A DUTY TO KEEP THE CONTENT OF THE DOLLAR
CONSTANT DURING THE PERIOD INTERVENING BETWEEN PROMISE AND
PERFORMANCE.  THE ERRONEOUS ASSUMPTION OF THE EXISTENCE OF SUCH A DUTY
VITIATES ANY ARGUMENT IN FAVOR OF THE PETITIONERS AS TO AN ANTICIPATORY
BREACH JUST AS IT VITIATES THEIR ARGUMENT AS TO THE IMPLICATIONS OF THE
CALL.  THE DUTY OF THE GOVERNMENT AND ITS ONLY ONE WAS TO PAY THE BONDS
WHEN DUE.  IF THE STATUTES HAD BEEN AMENDED BEFORE THE DATE OF
REDEMPTION OR IF THE COURTS HAD DECIDED THAT PAYMENT MUST BE MADE IN
GOLD OR IN CURRENCY PROPORTIONED TO THE EARLIER CONTENT OF THE DOLLAR,
THERE IS LITTLE LIKELIHOOD THAT ANY ONE WOULD JUDGE THE EFFICACY OF THE
NOTICE BY THE TEST OF THE LAW IN FORCE AT THE DATE OF ITS
ANNOUNCEMENT. 

THE PETITIONERS BEING DISLODGED FROM THE POSITION THAT THE NOTICES OF
CALL WERE VOID IN THEIR INCEPTION ARE PERFORCE DRIVEN TO THE STAND THAT
THEY BECAME NULLITIES THEREAFTER, WHEN THE STATUTES WERE UNREPEALED AT
THE DESIGNATED DATE.  BUT AT THE DESIGNATED DATE THE ACCELERATED
MATURITY WAS ALREADY AN ACCOMPLISHED FACT.  THE DUTY OF PAYMENT DID NOT
ARISE IN ADVANCE OF MATURITY.  IN THE VERY NATURE OF THINGS IT
PRESUPPOSES MATURITY AS A PRELIMINARY CONDITION.  IF THERE HAD BEEN ANY
DIFFERENT INTENTION, THE BONDS WOULD HAVE PROVIDED THAT INTEREST SHOULD
CEASE UPON PAYMENT OR LAWFUL TENDER, AND NOT FROM THE DATE OF
REDEMPTION STATED IN THE CALL.  THIS IS NOT A CASE OF MUTUAL PROMISES
OR COVENANTS WITH PERFORMANCE TO BE RENDERED ON EACH SIDE AT A GIVEN
TIME AND PLACE.  THE OBLIGEES WERE NOT UNDER A DUTY TO DO ANYTHING AT
ALL AT THE ACCELERATED MATURITY, THOUGH THEY WERE PRIVILEGED, IF THEY
PLEASED, TO PRESENT THE BONDS FOR PAYMENT.  MOST OF THE LEARNING AS TO
DEPENDENT AND INDEPENDENT PROMISES IN THE LAW OF BILATERAL CONTRACTS
(LOUD V. POMONA LAND & W. CO., 153 U.S. 564, 576) IS THUS BESIDE THE
MARK.  THIS IS A CASE OF A UNILATERAL CONTRACT WHERE THE ONLY ACT OF
PERFORMANCE, THE PAYMENT OF THE BONDS, WAS ONE OWING FROM THE OBLIGOR,
AND AROSE BY HYPOTHESIS UPON MATURITY AND NOT BEFORE.  LET MATURITY,
WHETHER NORMAL OR ACCELERATED, BE ACCEPTED AS A POSTULATE, AND IT MUST
FOLLOW THAT DEFAULT IN PAYMENT WILL NOT CHANGE THE DATE AGAIN.  IF THE
GOVERNMENT WERE TO COME FORWARD WITH A TENDER A DAY OR A WEEK AFTER THE
DESIGNATED DATE, THE OBLIGEES WOULD NOT BE SUSTAINED IN A REJECTION OF
THE PAYMENT ON THE THEORY THAT THE ORIGINAL DATE OF MATURITY HAD BEEN
RESTORED BY THE DELAY.  IF THE OBLIGEES WERE TO SUE AFTER THE
DESIGNATED DATE, THE GOVERNMENT WOULD NOT BE HEARD TO SAY THAT BECAUSE
OF THE DEFAULT IN PAYMENT, THE PROPOSED ACCELERATION WAS IMPERFECT AND
INCHOATE.  AS POINTED OUT ALREADY, THE BONDHOLDERS BECAME ENTITLED,
WHEN ONCE THE NOTICE HAD BEEN PUBLISHED, TO A MEASURE AND MEDIUM OF
PAYMENT SUFFICIENT TO DISCHARGE THE DEBTS.  IF THE THEN EXISTING ACTS
OF CONGRESS WERE VALID ALTOGETHER, PAYMENT WOULD BE SUFFICIENT IF MADE
IN THE THEN PREVAILING CURRENCY.  IF THE ACTS WERE INVALID, EITHER
WHOLLY OR IN SOME DEGREE, THERE MIGHT BE NEED OF SOMETHING MORE, HOW
MUCH BEING DEPENDENT UPON THE OPERATION OF AN IMPLIED OBLIGATION, READ
INTO THE BONDS BY A PROCESS OF CONSTRUCTION, TO RENDER AN EQUIVALENT. 
WHATEVER THE FORM AND MEASURE, THE BONDHOLDERS HAD A REMEDY IF THEY HAD
CHOSEN TO INVOKE IT. 

WE DO NOT NOW DETERMINE THE EFFECT OF A NOTICE GIVEN IN BAD FAITH
WITH A PRECONCEIVED INTENTION TO WITHHOLD PERFORMANCE LATER.  FRAUD
VITIATES NEARLY EVERY FORM OF CONDUCT AFFECTED BY ITS TAINT, BUT FRAUD
HAS NOT BEEN PROVED AND INDEED HAS NOT BEEN CHARGED.  THERE IS NO
REASON TO DOUBT THAT A SECRETARY OF THE TREASURY WHO WAS WILLING TO
GIVE NOTICE OF REDEMPTION AFTER KNOWLEDGE OF THE DECISION IN PERRY V.
UNITED STATES UNDERSTOOD THAT THE OBLIGATION OF THE GOVERNMENT WOULD BE
MEASURED BY THE CONSTITUTION AND NOT BY ANY STATUTE, IN SO FAR AS THE
TWO MIGHT BE FOUND TO BE IN CONFLICT.  NEVER FOR A MOMENT WAS THERE
LESS THAN COMPLETE SUBMISSION TO THE SUPREMACY OF LAW.  AT THE UTMOST,
THERE WAS HONEST MISTAKE AS TO RIGHTS AND LIABILITIES IN A SITUATION
WITHOUT PRECEDENT.  FRAUD BEING ELIMINATED, THE CASE ACQUIRES A NEW
CLARITY.  WHEN WE REACH THE HEART OF THE MATTER, PUTTING CONFUSING
VERBIAGE ASIDE AND FIXING OUR GAZE UPON ESSENTIALS, THE OBLIGATION OF
THE BONDS CAN BE EXPRESSED IN A SIMPLIFYING PARAPHRASE.  "THIS BOND
SHALL BE PAYABLE ON JUNE 15, 1947, OR (UPON THREE MONTHS NOTICE BY THE
SECRETARY OF THE TREASURY) ON JUNE 15, 1932, OR ANY INTEREST DATE
THEREAFTER."  THAT IS WHAT WAS MEANT.  THAT IN SUBSTANCE IS WHAT WAS
SAID.  FN3 

NO QUESTION OF CONSTITUTIONAL LAW IS INVOLVED IN THE DECISION OF
THESE CASES.  NO QUESTION IS HERE AS TO THE CORRECTNESS OF THE DECISION
IN PERRY V. UNITED STATES, OR AS TO THE MEANING OR EFFECT OF THE
OPINION THERE ANNOUNCED.  ALL SUCH INQUIRIES ARE PUT ASIDE AS
UNNECESSARY TO THE SOLUTION OF THE PROBLEM NOW BEFORE US.  IRRESPECTIVE
OF THE VALIDITY OR INVALIDITY OF THE WHOLE OR ANY PART OF THE
LEGISLATION OF RECENT YEARS DEVALUING THE DOLLAR, THE MATURITY OF THE
BONDS IN SUIT WAS ACCELERATED BY VALID NOTICE.  AS A CONSEQUENCE OF
SUCH ACCELERATION THE RIGHT TO INTEREST HAS GONE. 

SECOND.  THE SECRETARY OF THE TREASURY DID NOT ACT IN EXCESS OF HIS
LAWFUL POWERS BY ISSUING THE CALLS WITHOUT FURTHER AUTHORITY FROM THE
CONGRESS THAN WAS CONFERRED BY THE STATUTES UNDER WHICH THE BONDS WERE
ISSUED.    THE ARGUMENT TO THE CONTRARY IS INCONSISTENT WITH THE PLAIN
PROVISIONS OF THE STATUTES AND ALSO OF THE BONDS THEMSELVES. 

THERE WAS ALSO CONFIRMATION OF HIS POWER IN SUBSEQUENT ENACTMENTS. 
VICTORY LIBERTY LOAN ACT, SEC. 6, 40 STAT. 1311, AS AMENDED, MARCH 2,
1923, C. 179, 42 STAT. 1427, AND JANUARY 30, 1934, SEC. 14(B), 48 STAT.
344; GOLD RESERVE ACT OF 1934, SEC. 14, 48 STAT. 343; ACT OF FEBRUARY
4, 1935, SECS. 2, 4, 49 STAT. 20. 

THIRD.  IN ISSUING THE CALLS, THE SECRETARY OF THE TREASURY WAS NOT
LIMITED BY THE ACT OF MARCH 18, 1869(R.S. 3693; 16 STAT. 1) WHICH IN
ITS DAY PLACED RESTRICTIONS UPON THE REDEMPTION BY THE GOVERNMENT OF
INTEREST-BEARING BONDS. 

THE AIM OF THAT STATUTE WAS THE PROTECTION OF HOLDERS OF UNITED
STATES OBLIGATIONS NOT BEARING INTEREST, THE "GREENBACKS" OF THAT ERA. 
"THE BONDS OF THE UNITED STATES ARE NOT TO BE PAID BEFORE MATURITY,
WHILE THE NOTE-HOLDERS ARE TO BE KEPT WITHOUT THEIR REDEMPTION, UNLESS
THE NOTE-HOLDERS ARE ABLE AT THE SAME TIME TO CONVERT THEIR NOTES INTO
COIN."  STATEMENT OF ROBERT C. SCHENCK, ONE OF THE HOUSE MANAGERS,
CONGRESSIONAL GLOBE, MARCH 3, 1869, P. 1879.  UPON THE RESUMPTION OF
SPECIE PAYMENTS IN 1879 THE AIM OF THE STATUTE WAS ACHIEVED, AND ITS
RESTRICTIONS ARE NO LONGER BINDING. 

THE JUDGMENTS IN NOS. 42 AND 43 SHOULD BE AFFIRMED, AND THAT IN NO.
198 REVERSED.  NOS. 42 AND 43, AFFIRMED.  NO. 198, REVERSED. 

FN1  THE JOINT RESOLUTION OF AUG. 27, 1935(49 STAT. 938, 939),
WITHDRAWING THE CONSENT OF THE UNITED STATES TO SUIT WHERE THE CLAIMANT
ASSERTED AGAINST IT A RIGHT, PRIVILEGE OR POWER "UPON ANY GOLD-CLAUSE
SECURITIES OF THE UNITED STATES OR FOR INTEREST THEREON" MAKES AN
EXCEPTION OF ANY SUIT BEGUN BY JANUARY 1, 1936, AS WELL AS ANY
PROCEEDING "IN WHICH NO CLAIM IS MADE FOR PAYMENT OR CREDIT IN AN
AMOUNT IN EXCESS OF THE FACE OR NOMINAL VALUE IN DOLLARS OF THE
SECURITIES, COINS OR CURRENCIES OF THE UNITED STATES INVOLVED IN SUCH
PROCEEDING."  PETITIONER HAS BROUGHT HIMSELF WITHIN EACH BRANCH OF THE
EXCEPTION. 

FN2  THE COUPON READS AS FOLLOWS:  "THE UNITED STATES OF AMERICA WILL
PAY TO BEARER ON OCTOBER 15, 1934, AT THE TREASURY DEPARTMENT,
WASHINGTON, OR AT A DESIGNATED AGENCY, $1.07, BEING SIX MONTHS'
INTEREST THEN DUE ON $50 FOURTH LIBERTY LOAN 4 1/4% GOLD BONDS OF 1933
1938 UNLESS CALLED FOR PREVIOUS REDEMPTION." 

FN3  IMPORTANT DIFFERENCES EXIST, AND ARE NOT TO BE IGNORED, BETWEEN
THE RETIREMENT OF SHARES OF STOCK (STERLING V. H.F. WATSON CO., SUPRA;
CORBETT V. MCCLINTIC-MARSHALL CORP., 17 DEL. CH. 165; 151 ATL. 218),
AND THE ACCELERATED PAYMENT OF MONEY OBLIGATIONS, AND ALSO BETWEEN THE
ACCELERATION OF THE OBLIGATIONS OF THE GOVERNMENT AND THOSE OF OTHER
OBLIGORS.  IN THE CASE OF PRIVATE OBLIGATIONS, A LIABILITY FOR INTEREST
SURVIVES THE ACCELERATION OF THE DEBT AND CONTINUES UNTIL PAYMENT.  IN
THE CASE OF GOVERNMENT OBLIGATIONS, INTEREST DOES NOT CONTINUE AFTER
MATURITY (IN THE ABSENCE OF STATUTE OR AGREEMENT) THOUGH PAYMENT IS NOT
MADE. 

DISSENTING:  MR. JUSTICE MCREYNOLDS, MR. JUSTICE SUTHERLAND AND MR.
JUSTICE BUTLER.  SEE POST, P. 364. 

MR. JUSTICE STONE. 

I CONCUR IN THE RESULT. 

I THINK THE COURT BELOW, IN THE MACHEN CASE, 87 F.(2D) 594, CORRECTLY
INTERPRETED THE BONDS INVOLVED IN THESE CASES AS RESERVING TO THE
GOVERNMENT THE PRIVILEGE OF ACCELERATING THEIR MATURITY BY PAYING THEM
OR STANDING READY TO PAY THEM ON ANY INTEREST DATE ACCORDING TO THEIR
TENOR, AND UPON GIVING THE SPECIFIED NOTICE FIXING THE "DATE OF
REDEMPTION."  THE WORDS "REDEEMED" AND "REDEMPTION" AS USED IN THE
BONDS  FN1  POINT THE WAY IN WHICH THE PRIVILEGE WAS TO BE EXERCISED AS
PLAINLY AS WHEN THEY ARE WRITTEN IN THE BONDS OF A PRIVATE LENDER. 
LYNCH V. UNITED STATES, 292 U.S. 571, 579; CF. PERRY V. UNITED STATES,
294 U.S. 330, 352.  IF PAYMENT, OR READINESS TO PAY THE BONDS IN
ACCORDANCE WITH THEIR TERMS WAS ESSENTIAL TO "REDEMPTION," THE ONE OR
THE OTHER, EQUALLY WITH THE REQUIRED NOTICE, WAS A CONDITION OF
ACCELERATION. 

THE OBLIGATION OF THE BONDS, READ IN THE LIGHT OF LONG ESTABLISHED
CUSTOM AND OF OUR OWN DECISION IN HOLYOKE WATER POWER CO. V. AMERICAN
WRITING PAPER CO., 300 U.S. 324, 336, DECIDED SINCE THE PERRY CASE,
MUST, I THINK, BE TAKEN TO BE A "GOLD VALUE" UNDERTAKING TO PAY IN GOLD
DOLLARS OF THE SPECIFIED WEIGHT AND FINENESS OR THEIR EQUIVALENT IN
LAWFUL CURRENCY.  COMPARE NORMAN V. B. & O.R. CO., 294 U.S. 240, 302. 
FEIST V. SOCIETE INTERCOMMUNALE BELGE, &C., L.R. (1934) A.C. 172, 173. 
THE SUPPRESSION OF THE USE OF GOLD AS MONEY, AND THE RESTRICTION ON ITS
EXPORT AND OF ITS USE IN INTERNATIONAL EXCHANGE, BY ACTS OF CONGRESS,
48 STAT. 1, 337, DID NOT RELIEVE THE GOVERNMENT OF ITS OBLIGATION TO
PAY THE STIPULATED GOLD VALUE OF THE BONDS IN LAWFUL CURRENCY.  HENCE
IT HAS NOT COMPLIED, OR EVER STOOD READY TO COMPLY, WITH ONE OF THE TWO
CONDITIONS UPON PERFORMANCE OF WHICH THE BONDS "MAY BE REDEEMED AND
PAID" IN ADVANCE OF THEIR DUE DATE - THE PAYMENT TO THE BONDHOLDER OF
THE CURRENCY EQUIVALENT OF THE STIPULATED GOLD VALUE. 

IT WILL NOT DO TO SAY THAT PERFORMANCE OF THIS CONDITION CAN BE
AVOIDED OR DISPENSED WITH BY THE ADOPTION OF ANY FORM OF WORDS IN THE
NOTICE.  NOR CAN IT BE SAID THAT A DECLARATION, IN THE NOTICE, OF
INTENTION TO PAY WHATEVER CAN BE COLLECTED IN COURT, SEE THE PERRY
CASE, SUPRA, 354, IS EQUIVALENT TO A NOTICE OF READINESS TO PAY THE
CURRENCY EQUIVALENT OF THE GOLD VALUE STIPULATED TO BE PAID, OR THAT A
STATEMENT OF PURPOSE TO PAY WHAT WILL CONSTITUTIONALLY SATISFY THE DEBT
SUFFICES TO ACCELERATE ALTHOUGH NO PAYMENT OF THE CURRENCY EQUIVALENT
IS MADE OR CONTEMPLATED OR IS PERMITTED BY THE STATUTES.  IT FOLLOWS
THAT JUDGMENT MUST GO FOR THE BONDHOLDERS UNLESS THE JOINT RESOLUTION
OF CONGRESS OF JUNE 5, 1933, 48 STAT. 112, REQUIRING THE DISCHARGE OF
ALL GOLD OBLIGATIONS "DOLLAR FOR DOLLAR" IN LAWFUL CURRENCY, AND
DECLARING VOID AS AGAINST PUBLIC POLICY ALL PROVISIONS OF SUCH
OBLIGATIONS CALLING FOR GOLD PAYMENTS, IS TO BE PRONOUNCED
CONSTITUTIONAL. 

DECISION OF THE CONSTITUTIONAL QUESTION BEING IN MY OPINION NOW
UNAVOIDABLE, I AM MOVED TO STATE SHORTLY MY REASONS FOR THE VIEW THAT
GOVERNMENT BONDS DO NOT STAND ON ANY DIFFERENT FOOTING FROM THOSE OF
PRIVATE INDIVIDUALS AND THAT THE JOINT RESOLUTION IN THE ONE CASE, AS
IN THE OTHER, WAS A CONSTITUTIONAL EXERCISE OF THE POWER TO REGULATE
THE VALUE OF MONEY.  COMPARE NORMAN V. B. & O.R. CO., SUPRA, 304, 309. 
WITHOUT ELABORATING THE POINT, IT IS ENOUGH FOR PRESENT PURPOSES TO SAY
THAT THE UNDERTAKING OF THE UNITED STATES TO PAY ITS OBLIGATIONS IN
GOLD, IF BINDING, OPERATES TO THWART THE EXERCISE OF THE CONSTITUTIONAL
POWER IN THE SAME MANNER AND TO THE SAME DEGREE PRO TANTO AS DO BONDS
ISSUED BY PRIVATE INDIVIDUALS, NORMAN V. B. & O.R. CO., SUPRA, 311 ET
SEQ., EXCEPT INSOFAR AS THE GOVERNMENT RESORTS TO ITS SOVEREIGN
IMMUNITY FROM SUIT.  HAD THE UNDERTAKING BEEN GIVEN ANY FORCE IN THE
GOLD CLAUSE CASES, OR THE MEANING WHICH WE HAVE SINCE ATTRIBUTED TO IT
WHEN USED IN PRIVATE CONTRACTS, IT WOULD, IF VALID AND BUT FOR THE
IMMUNITY FROM SUIT, HAVE DEFEATED THE GOVERNMENT POLICY OF SUSPENSION
OF GOLD PAYMENTS AND DEVALUATION OF THE DOLLAR.  COMPARE THE NORMAN
CASE, SUPRA, WITH THE CONCURRING MEMORANDUM IN PERRY V. UNITED STATES,
SUPRA, 360-361. 

THE VERY FACT OF THE EXISTENCE OF SUCH IMMUNITY, WHICH ADMITS OF THE
CREATION OF ONLY SUCH GOVERNMENT OBLIGATIONS AS ARE ENFORCEABLE AT THE
WILL OF THE SOVEREIGN, IS PERSUASIVE THAT THE POWER TO BORROW MONEY "ON
THE CREDIT" OF THE UNITED STATES CANNOT BE TAKEN TO BE A LIMITATION OF
THE POWER TO REGULATE THE VALUE OF MONEY.  LOOKING TO THE PURPOSES FOR
WHICH THAT POWER IS CONFERRED UPON THE NATIONAL GOVERNMENT, ITS
EXERCISE, IF JUSTIFIED AT ALL, IS AS ESSENTIAL IN THE CASE OF BONDS OF
THE NATIONAL GOVERNMENT AS IT IS IN THE CASE OF BONDS OF STATES,
MUNICIPALITIES AND PRIVATE INDIVIDUALS.  SEE NORMAN V. B. & O.R. CO.,
SUPRA, 313 ET SEQ. ITS EFFECT ON THE BONDHOLDERS IS THE SAME IN EVERY
CASE.  COMPARE NORMAN V. B. & O.R. CO., SUPRA, WITH NORTZ V. UNITED
STATES, 294 U.S. 317.  NO REASON OF PUBLIC POLICY OR PRINCIPLE OF
CONSTRUCTION OF THE INSTRUMENT ITSELF HAS EVER BEEN SUGGESTED, SO FAR
AS I AM AWARE, WHICH WOULD EXPLAIN WHY THE POWER TO REGULATE THE
CURRENCY, WHICH IS NOT RESTRICTED BY THE FIFTH AMENDMENT IN THE CASE OF
ANY OBLIGATION, IS CONTROLLED, IN THE CASE OF GOVERNMENT BONDS, BY THE
BORROWING CLAUSE WHICH IMPOSES NO OBLIGATION WHICH THE GOVERNMENT IS
NOT FREE TO DISCARD AT ANY TIME THROUGH ITS IMMUNITY FROM SUIT.  I
CANNOT SAY THAT THE BORROWING CLAUSE WHICH IS WITHOUT FORCE TO COMPEL
THE SOVEREIGN TO PAY NEVERTHELESS RENDERS THE GOVERNMENT POWERLESS TO
EXERCISE THE SPECIFICALLY GRANTED AUTHORITY TO REGULATE THE VALUE OF
MONEY WITH WHICH PAYMENT IS TO BE MADE. 

FN1  THE REDEMPTION CLAUSE IS AS FOLLOWS: 

"THE PRINCIPAL AND INTEREST OF THIS BOND SHALL BE PAYABLE IN UNITED
STATES GOLD COIN OF THE PRESENT STANDARD OF VALUE,  ...  ALL OR ANY OF
THE BONDS OF THE SERIES OF WHICH THIS IS ONE MAY BE REDEEMED AND PAID
AT THE PLEASURE OF THE UNITED STATES ON OR AFTER JUNE 15, 1932, OR ON
ANY SEMI-ANNUAL INTEREST PAYMENT DATE OR DATES, AT THE FACE VALUE
THEREOF AND INTEREST ACCRUED AT THE DATE OF REDEMPTION, ON NOTICE
PUBLISHED AT LEAST THREE MONTHS PRIOR TO THE REDEMPTION DATE, AND
PUBLISHED THEREAFTER FROM TIME TO TIME DURING SAID THREE MONTHS PERIOD
AS THE SECRETARY OF THE TREASURY SHALL DIRECT....  FROM THE DATE OF
REDEMPTION DESIGNATED IN ANY SUCH NOTICE INTEREST ON THE BONDS CALLED
FOR REDEMPTION SHALL CEASE, AND ALL COUPONS THEREON MATURING AFTER SAID
DATE SHALL BE VOID...." 

MR. JUSTICE BLACK, CONCURRING. 

AGREEING ALTOGETHER WITH THE OPINION OF MR. JUSTICE CARDOZO, WHICH
DEALS ONLY WITH THE CONSTRUCTION OF THE CONTRACT AND THE RIGHTS FLOWING
FROM THE NOTICE, I FIND IT UNNECESSARY AND THEREFORE INAPPROPRIATE TO
EXPRESS ANY OPINION AS TO THE VALIDITY OF THE JOINT RESOLUTION OF 1933
OR OTHER ACTS OF LEGISLATION DEVALUING THE DOLLAR. 

MR. JUSTICE MCREYNOLDS, DISSENTING.* 

*THIS OPINION WAS ENTITLED IN ONLY ONE OF THE THREE CASES, NO. 198. 

MR. JUSTICE SUTHERLAND, MR. JUSTICE BUTLER AND I CANNOT ACQUIESCE IN
THE CONCLUSION APPROVED BY THE MAJORITY OF THE COURT.  IN OUR VIEW IT
GIVES EFFECT TO AN ACT OF BAD FAITH AND UPHOLDS PATENT REPUDIATION. 
ITS WRONGFULNESS IS BETOKENED BY THE CIRCUMLOCUTION PRESENTED IN
DEFENSE. 

THE SUIT IS TO RECOVER IN CURRENCY OF TODAY THE FACE VALUE OF A PAST
DUE COUPON ORIGINALLY ATTACHED TO A THREE AND ONE-HALF PER CENT BOND OF
THE UNITED STATES ISSUED IN 1917 AND PAYABLE 1947 - NOTHING ELSE. 

THE OPINION OF THE CIRCUIT COURT OF APPEALS, TO WHICH LITTLE CAN BE
ADDED, SETS OUT THE IMPORTANT FACTS AND ADEQUATELY SUPPORTS ITS
JUDGMENT. 

IN 1917, WHEN GOLD COINS CONTAINED 25.8 GRAINS TO THE DOLLAR, THE
UNITED STATES OBTAINED NEEDED FUNDS BY SELLING COUPON BONDS - AMONG
THEM THE ONE HERE INVOLVED.  THEY SOLEMNLY AGREED TO PAY THE HOLDER ONE
THOUSAND DOLLARS ON JUNE 15, 1947, WITH SEMI-ANNUAL INTEREST, IN "GOLD
COIN OF THE PRESENT STANDARD OF VALUE" SUBJECT TO THE FOLLOWING OPTION:
- "ALL OR ANY OF THE BONDS OF THE SERIES OF WHICH THIS IS ONE MAY BE
REDEEMED  FN1  AND PAID AT THE PLEASURE OF THE UNITED STATES ON OR
AFTER JUNE 15, 1932, ON ANY SEMI-ANNUAL INTEREST PAYMENT DATE OR DATES,
AT THE FACE VALUE THEREOF AND INTEREST ACCRUED AT THE DATE OF
REDEMPTION, ON NOTICE PUBLISHED AT LEAST THREE MONTHS PRIOR TO THE
REDEMPTION DATE....  FROM THE DATE OF REDEMPTION DESIGNATED IN ANY SUCH
NOTICE, INTEREST ON THE BONDS CALLED FOR REDEMPTION SHALL CEASE, AND
ALL COUPONS THEREON MATURING AFTER SUCH DATE SHALL BE VOID." 

THE PROMISE IS TO PAY ONE THOUSAND DOLLARS IN GOLD COIN, 1917
STANDARD.  THE FACE VALUE OF THE BOND IS ONE THOUSAND GOLD DOLLARS. 
THE OPTION RESERVED IS TO REDEEM AND PAY AFTER NOTICE BY GIVING THE
HOLDER THAT NUMBER OF SUCH DOLLARS.  THE NOTICE REQUIRED IS NOTHING
LESS THAN A DECLARATION OF BONA FIDE PURPOSE TO REDEEM OR PAY OFF THE
OBLIGATION AS WRITTEN - NO OTHER RIGHT WAS RESERVED.  A NOTICE DIVORCED
FROM THAT PURPOSE COULD AMOUNT TO NOTHING MORE THAN A DISHONEST EFFORT
TO DEFEAT THE CONTRACT AND DEFRAUD THE CREDITOR.  IT WOULD NOT COME
WITHIN THE FAIR INTENDMENT OF THE CONTRACT; WOULD NOT, IN TRUTH,
DESIGNATE A "DATE OF REDEMPTION"; AND, THEREFORE, COULD NOT HASTEN THE
MATURITY OF THE PRINCIPAL OR CAUSE INTEREST TO CEASE.  ALL THIS SEEMS
OBVIOUS, IF RESPECT IS TO BE ACCORDED TO THE ORDINARY RULES OF
CONSTRUCTION AND PRINCIPLES OF LAW GOVERNING CONTRACTS. 

THE OBLIGATION OF THE BOND WAS DECLARED BY THIS COURT IN PERRY V.
UNITED STATES, 294 U.S. 330, 351, 353, 354, TO BE A PLEDGE OF THE
CREDIT OF THE UNITED STATES AND AN ASSURANCE OF PAYMENT AS STIPULATED
WHICH CONGRESS HAD NO POWER TO WITHDRAW OR IGNORE.  "THE UNITED STATES
ARE AS MUCH BOUND BY THEIR CONTRACTS AS ARE INDIVIDUALS.  IF THEY
REPUDIATE THEIR OBLIGATIONS, IT IS AS MUCH REPUDIATION, WITH ALL THE
WRONG AND REPROACH THAT TERM IMPLIES, AS IT WOULD BE IF THE REPUDIATOR
HAD BEEN A STATE OR A MUNICIPALITY OR A CITIZEN."  "THE POWER OF THE
CONGRESS TO ALTER OR REPUDIATE THE SUBSTANCE OF ITS OWN ENGAGEMENTS
WHEN IT HAS BORROWED MONEY UNDER THE AUTHORITY WHICH THE CONSTITUTION
CONFERS" WAS THERE DENIED.  "THE BINDING QUALITY OF THE PROMISE OF THE
UNITED STATES IS OF THE ESSENCE OF THE CREDIT WHICH IS SO PLEDGED. 
HAVING THIS POWER TO AUTHORIZE THE ISSUE OF DEFINITE OBLIGATIONS FOR
THE PAYMENT OF MONEY BORROWED, THE CONGRESS HAS NOT BEEN VESTED WITH
AUTHORITY TO ALTER OR DESTROY THOSE OBLIGATIONS.  THE FACT THAT THE
UNITED STATES MAY NOT BE SUED WITHOUT ITS CONSENT IS A MATTER OF
PROCEDURE WHICH DOES NOT AFFECT THE LEGAL AND BINDING CHARACTER OF ITS
CONTRACTS.  WHILE THE CONGRESS IS UNDER NO DUTY TO PROVIDE REMEDIES
THROUGH THE COURTS, THE CONTRACTUAL OBLIGATION STILL EXISTS AND,
DESPITE INFIRMITIES OF PROCEDURE, REMAINS BINDING UPON THE CONSCIENCE
OF THE SOVEREIGN."    THE RIGHT TO REDEEM AND PAY THE BOND AT FACE
VALUE AFTER NOTICE WAS RESERVED - NOTHING ELSE.  DID THE UNITED STATES
GIVE NOTICE OF A BONA FIDE PURPOSE SO TO REDEEM AND PAY?  IF NOT THEY
CANNOT PROPERLY CLAIM TO HAVE EXERCISED THEIR OPTION TO MATURE THE
OBLIGATION.  THAT THEY DID NOT HONESTLY COMPLY WITH THIS NECESSARY
PRELIMINARY BECOMES OBVIOUS UPON CONSIDERATION OF THE CIRCUMSTANCES AND
PERTINENT LEGISLATION. 

THERE IS NO QUESTION HERE CONCERNING THE GOVERNMENT COMMITTING ITSELF
THROUGH NOTICE SENT OUT BY THE SECRETARY OF THE TREASURY EXPRESSLY OR
INDIRECTLY TO A FORBIDDEN MEDIUM OF PAYMENT.  NO QUESTION OF AN
ANTICIPATORY BREACH OF CONTRACT.  THE GOVERNMENT SIMPLY HAS NOT IN GOOD
FAITH COMPLIED WITH A CONDITION PRECEDENT.  IT HAS NEVER GIVEN NOTICE
OF PURPOSE TO PAY THE OBLIGATION ACCORDING TO ITS TERMS.  ITS
SUGGESTION WAS TO MAKE PAYMENT OF ANOTHER KIND. 

THE CIRCUIT COURT OF APPEALS WELL SAID - 

"THE NOTICE CALLING THE BOND FOR PAYMENT WAS IN THE USUAL FORM; AND
THERE IS NO QUESTION BUT THAT IT WOULD HAVE HAD THE EFFECT OF STOPPING
THE RUNNING OF INTEREST AND AVOIDING THE COUPONS MATURING AFTER JUNE
15, 1935, EXCEPT FOR THE LEGISLATION OF CONGRESS AFFECTING THE
CURRENCY, WHICH LIMITED THE POWER OF THE SECRETARY OF THE TREASURY AND
MUST BE READ INTO THE NOTICE.  AT THE TIME OF THE ISSUANCE OF THE BOND
THE GOLD DOLLAR WAS THE STANDARD OF VALUE IN OUR MONETARY SYSTEM AND
WAS DEFINED BY LAW AS CONSISTING OF TWENTY-FIVE AND EIGHT TENTHS GRAINS
OF GOLD NINE-TENTHS FINE.  ACT OF MAR. 14, 1900, C. 41, SEC. 1, 31
STAT. 45, 31 U.S.C.A. 314.  AND THE STATUTES PROVIDED FOR THE USE OF
GOLD COIN AS A MEDIUM OF EXCHANGE.  R.S. 3511.  BY PRESIDENTIAL
PROCLAMATION OF JANUARY 31, 1934, ISSUED UNDER THE ACT OF MAY 12,
1933(38 STAT. 52, 53), AS AMENDED BY THE ACT OF JANUARY 30, 1934(48
STAT. 342), THE CONTENT OF THE DOLLAR WAS REDUCED TO 15-5/21 GRAINS OF
GOLD NINE-TENTHS FINE; AND, AT THE TIME OF THE PUBLICATION OF THE
NOTICE CALLING THE BOND FOR PAYMENT, GOLD COIN HAD BEEN WITHDRAWN FROM
CIRCULATION, ITS POSSESSION HAD BEEN PROHIBITED UNDER PENALTY, AND
PAYMENT IN GOLD COIN BY THE UNITED STATES HAD BEEN PROHIBITED.  48
STAT. 337, 340.  BY JOINT RESOLUTION OF JUNE 5, 1933(48 STAT. 112,
113), THE PAYMENT OF GOLD CLAUSE BONDS IN ANY LEGAL TENDER CURRENCY
'DOLLAR FOR DOLLAR' HAD BEEN AUTHORIZED; AND IT WAS PAPER CURRENCY
BASED ON THE 15-5/21 GRAIN DOLLAR, AND NOTHING ELSE, THAT WAS OFFERED
IN PAYMENT OF GOLD CLAUSE BONDS WHICH WERE CALLED FOR PAYMENT BY THE
TREASURY.  THE NOTICE OF REDEMPTION CALLING THE BOND IN QUESTION FOR
PAYMENT WAS EQUIVALENT, THEREFORE, TO A NOTICE THAT THE UNITED STATES
ELECTED TO REDEEM THE BOND IN PAPER CURRENCY BASED ON A 15-5/21 GRAIN
DOLLAR, NOTWITHSTANDING THAT IT WAS PAYABLE IN GOLD COIN BASED ON A 25
8/10 GRAIN DOLLAR AND MIGHT BE REDEEMED ONLY AT ITS FACE VALUE.... 

"IT IS MANIFEST THAT WHEN THE BONDS WERE PAYABLE IN GOLD COIN OF THE
STANDARD OF VALUE AT THE TIME OF ISSUE, I.E., 25-8/10 GRAINS OF GOLD TO
THE DOLLAR, A PROPOSAL TO REDEEM THEM IN PAPER MONEY BASED UPON 15-5/21
GRAINS OF GOLD TO THE DOLLAR WAS NOT A PROPOSAL TO REDEEM THEM AT FACE
VALUE; AND A NOTICE THAT THE GOVERNMENT WOULD REDEEM THEM ON SUCH
BASIS, WHICH IS WHAT THE NOTICE IN QUESTION MEANS WHEN CONSIDERED AS IT
MUST BE IN CONNECTION WITH THE LEGISLATION BINDING UPON THE SECRETARY
OF THE TREASURY, WAS NOT SUCH A NOTICE AS THE BONDS PRESCRIBED FOR THE
EXERCISE OF THE OPTION RETAINED BY THE GOVERNMENT." 

WE ARE NOT NOW CONCERNED WITH THE POWER OF THE UNITED STATES TO
DISCHARGE OBLIGATIONS AT MATURITY IN DEPRECIATED CURRENCY OR CLIPPED
COIN.  DID THEY CAUSE RESPONDENT'S BOND TO MATURE BEFORE THE ULTIMATE
DUE DATE BY PROPER EXERCISE OF THE OPTION RESERVED WHEN THEY SENT OUT A
NOTICE WHICH IN EFFECT STATED THAT PAYMENT WOULD NOT BE MADE AS
PROVIDED BY THE BOND, BUT OTHERWISE?  THE ANSWER OUGHT NOT TO BE
DIFFICULT WHERE MEN ANXIOUSLY UPHOLD THE DOCTRINE THAT A CONTRACTUAL
OBLIGATION "REMAINS BINDING UPON THE CONSCIENCE OF THE SOVEREIGN" AND
REVERENTLY FIX THEIR GAZE ON THE EIGHTH COMMANDMENT. 

WE CONCUR IN THE VIEWS TERSELY EXPRESSED IN THE FOLLOWING PARAGRAPH
EXCERPTED FROM THE OPINION BELOW - 

"NO AMOUNT OF ARGUMENT CAN OBSCURE THE REAL SITUATION.  IT IS THIS:
THE GOVERNMENT HAS PROMISED TO PAY THE BONDS IN QUESTION IN GOLD COIN
OF THE STANDARD OF VALUE PREVAILING IN 1917.  BY THEIR TERMS, IT IS
PERMITTED TO REDEEM THEM ONLY BY PAYING THEM AT THEIR FACE VALUE.  IT
IS PROPOSING TO REDEEM THEM, NOT BY PAYING THEM AT THAT FACE VALUE BUT
IN PAPER MONEY WORTH ONLY ABOUT 59% THEREOF.  THE NOTICE WHICH IT HAS
ISSUED MEANS THIS AND NOTHING ELSE.  SUCH A NOTICE IS NOT IN ACCORDANCE
WITH THE CONDITION OF REDEMPTION SPECIFIED IN THE BOND AND CONSEQUENTLY
DOES NOT STOP THE RUNNING OF INTEREST OR AVOID THE COUPONS." 

THE CHALLENGED JUDGMENT WAS CORRECT AND SHOULD BE AFFIRMED. 

FN1  REDEEM - 5.  TO BUY OFF, TAKE UP OR REMOVE THE OBLIGATION OF, BY
PAYMENT OR RENDERING OF SOME CONSIDERATION; AS TO REDEEM BANK NOTES
WITH COIN. 

WEBSTER'S NEW INTERNATIONAL DICTIONARY. 
..END :



MCNAIR V. KNOTT, 302 U.S. 369 


NO. 32.  ARGUED NOVEMBER 10, 11, 1937.  - DECIDED DECEMBER 13, 1937.  -
87 F.(2D) 817, AFFIRMED. 


1.  THE ENABLING AMENDMENT OF JUNE 25, 1930, PROVIDES THAT ANY
NATIONAL BANK ASSOCIATION "MAY, UPON THE DEPOSIT WITH IT OF PUBLIC
MONEY OF A STATE OR ANY POLITICAL SUBDIVISION THEREOF, GIVE SECURITY
FOR THE SAFE-KEEPING AND PROMPT PAYMENT OF THE MONEY SO DEPOSITED, OF
THE SAME KIND AS IS AUTHORIZED BY THE LAW OF THE STATE IN WHICH SUCH
ASSOCIATION IS LOCATED IN THE CASE OF OTHER BANKING INSTITUTIONS IN THE
STATE."  HELD APPLICABLE BY INTENTION, TO SECURITY GIVEN AND DEPOSITS
MADE BEFORE THE DATE OF THE AMENDMENT.  P. 371. 

2.  THUS CONSTRUED RETROACTIVELY, THE AMENDMENT WAS WITHIN THE POWER
OF CONGRESS.  P. 372. 

MCNAIR, RECEIVER, V. KNOTT, TREASURER OF FLORIDA, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 301 U.S. 677, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING A BILL BY THE RECEIVER OF A NATIONAL BANK PRAYING FOR THE
CANCELLATION OF A PLEDGE AGREEMENT MADE BY THE BANK. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER THE NATIONAL BANK ENABLING
AMENDMENT OF JUNE 25, 1930, WHICH GRANTED POWER TO NATIONAL BANKS TO
SECURE DEPOSITS OF PUBLIC FUNDS, VALIDATES OR MAKES ENFORCEABLE
PREVIOUS PLEDGE AGREEMENTS MADE TO PROTECT SUCH FUNDS DEPOSITED BEFORE
THE ENABLING AMENDMENT BECAME EFFECTIVE. 

THAT ENABLING ACT  FN1  PROVIDES: 

"ANY ASSOCIATION MAY, UPON THE DEPOSIT WITH IT OF PUBLIC MONEY OF A
STATE OR ANY POLITICAL SUBDIVISION THEREOF, GIVE SECURITY FOR THE SAFE
KEEPING AND PROMPT PAYMENT OF THE MONEY SO DEPOSITED, OF THE SAME KIND
AS IS AUTHORIZED BY THE LAW OF THE STATE IN WHICH SUCH ASSOCIATION IS
LOCATED IN THE CASE OF OTHER BANKING INSTITUTIONS IN THE STATE." 

BEFORE, AND AT THE TIME THIS ENABLING AMENDMENT WAS PASSED, THE LAWS
OF FLORIDA AUTHORIZED STATE BANKS TO GIVE SECURITY FOR PUBLIC DEPOSITS
AND ALSO IMPOSED UPON PUBLIC OFFICIALS A DUTY TO OBTAIN SUCH SECURITY. 
FN2  IN 1929 AND 1930, BEFORE THE PASSAGE OF THIS AMENDMENT, THE FIRST
NATIONAL BANK OF PERRY, FLORIDA, BY AGREEMENT WITH THE OFFICIALS OF
TAYLOR COUNTY, FLORIDA, PLEDGED COLLATERAL SECURITY FOR THE PROTECTION
OF COUNTY FUNDS THEREAFTER TO BE DEPOSITED FROM TIME TO TIME IN THE
BANK. 

THIS CONTRACTUAL RELATIONSHIP, ESTABLISHED BY THE PLEDGE AGREEMENT
AND DEPOSITS MADE THEREUNDER, CONTINUED TO EXIST UNTIL THE BANK WAS
CLOSED OCTOBER 18, 1930.  THE RECEIVER FOR THE CLOSED BANK AT FIRST
RECOGNIZED THE PLEDGE AGREEMENT AS VALID AND ENFORCEABLE AND
ACCORDINGLY PAID THE COUNTY THE INCOME HE RECEIVED FROM THE PLEDGED
SECURITIES.  IN 1935, HOWEVER, THE RECEIVER FILED THIS SUIT IN EQUITY
IN THE FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA,
ALLEGING THAT THE PLEDGE AGREEMENT WAS ULTRA VIRES AND ILLEGAL AND
PRAYING THAT IT BE CANCELLED AND ANNULLED.  UPON MOTION OF THE COUNTY,
THE DISTRICT COURT DISMISSED THE BILL.  13 F.SUPP.  963.  THE CIRCUIT
COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED.  87 F.(2D) 817.  THIS
COURT GRANTED CERTIORARI.  301 U.S. 677. 

THE ISSUES RAISED REQUIRE THAT WE DETERMINE: 

(1)  DID CONGRESS INTEND TO VALIDATE EXISTING ULTRA VIRES PLEDGES? 

(2)  COULD THIS PLEDGE AGREEMENT BE VALIDATED BY CHANGING THE LAW
WHICH WAS IN FORCE WHEN THE TRANSACTION WAS INITIATED? 

FIRST.  THE LANGUAGE OF THE AMENDMENT, READ IN THE LIGHT OF THE
CONDITIONS THAT BROUGHT ABOUT THE NECESSITY FOR ITS PASSAGE, LEADS
IRRESISTIBLY TO THE CONCLUSION THAT CONGRESS DID INTEND TO MAKE
EXISTING PLEDGES ENFORCEABLE. 

THE AMENDMENT DOES NOT EXPRESSLY EXCLUDE EXISTING CONTRACTS FROM ITS
FIELD OF OPERATION.  ON THE CONTRARY IT EXTENDED A GENERAL GRANT OF THE
BROAD POWER TO GIVE SECURITY FOR PUBLIC DEPOSITS, WITH A SINGLE
LIMITATION RELATING TO THE KIND OF SECURITY GIVEN BY STATE BANKS.  IF
CONGRESS HAD DESIRED TO LIMIT THE REMEDIAL GRANT TO SUBSEQUENT SECURITY
CONTRACTS, IT WOULD DOUBTLESS HAVE PROVIDED AN ADDITIONAL LIMITATION
RELATING TO PRIOR AGREEMENTS.  THIS IT DID NOT DO.  CONGRESS ALONE HAD
THE POWER TO WRITE SUCH A LIMITATION IN THE BILL.  FN3 

AGREEMENTS TO SECURE PUBLIC DEPOSITS DID NOT VIOLATE ANY EXPRESS
STATUTORY PROHIBITION; NO STATUTE IMPOSED A PENALTY FOR MAKING SUCH
AGREEMENTS.  SINCE THE BANKING ACT OF 1863 CONGRESS HAS PASSED MANY
LAWS REQUIRING THAT SECURITY BE GIVEN TO PROTECT DEPOSITS OF CERTAIN
PUBLIC FUNDS.  FN4 

FOR MANY YEARS COMPTROLLERS OF THE CURRENCY ASSUMED THAT NATIONAL
BANKS HAD POWER TO GIVE SECURITY FOR PUBLIC DEPOSITS AND APPROVED THE
PRACTICE OF THE BANKS IN PLEDGING SUCH SECURITY.  IT HAS BEEN, AND IS
NOW, THE POLICY OF MOST STATES TO REQUIRE SECURITY FOR PUBLIC FUNDS
WHETHER DEPOSITED IN STATE OR NATIONAL BANKS.  THE WEIGHT OF JUDICIAL
AUTHORITY IN THE STATE COURTS HAS SUPPORTED THE DOCTRINE THAT BANKS
COULD PLEDGE SECURITY FOR PUBLIC DEPOSITS, BUT NOT FOR PRIVATE
DEPOSITS.  FN5 

THE SENATE COMMITTEE ON BANKING AND CURRENCY WHICH MADE A FAVORABLE
REPORT ON THE ENABLING AMENDMENT GAVE INFORMATION TO THE SENATE IN ITS
REPORT THAT MILLIONS OF DOLLARS WORTH OF COLLATERAL HAD BEEN PLEDGED BY
NATIONAL BANKS AS SECURITY FOR PUBLIC DEPOSITS.  FN6  THE SENATE AND
HOUSE COMMITTEE REPORTS SHOW THAT THE SPONSORS OF THE AMENDMENT DESIRED
IT NOT MERELY TO PERMIT FUTURE PLEDGES BUT ALSO TO ASSURE THAT
AGREEMENTS UNDER WHICH "MILLIONS OF DOLLARS" OF PLEDGES HAD BEEN MADE
BY NATIONAL BANKS WOULD BE ENFORCEABLE.  ONE OF THE CHIEF REASONS FOR
THE ENACTMENT OF THE AMENDMENT WAS THE NEED FOR VALIDATION OF PLEDGES
ALREADY MADE.  THE AMENDMENT WAS DESIGNED TO MEET THIS NEED.  TO
DETERMINE THAT CONGRESS DID NOT INTEND TO VALIDATE PLEDGE AGREEMENTS
EXISTING WHEN THE AMENDMENT WAS PASSED WOULD GREATLY LIMIT ITS CURATIVE
EFFECT.  SUCH A CONSTRUCTION WOULD BE AN UNWARRANTED DEPARTURE FROM THE
PLAIN INTENT OF THIS CURATIVE AND ENABLING STATUTE. 

SECOND.  APPELLANT INSISTS THAT THE CONTRACT COULD NOT BE VALIDATED
BY CHANGING THE LAW WHICH WAS IN FORCE WHEN THE PLEDGE AGREEMENT WAS
MADE. 

THERE IS NOTHING NOVEL OR EXTRAORDINARY IN THE PASSAGE OF LAWS BY THE
FEDERAL GOVERNMENT AND THE STATES RATIFYING, CONFIRMING, VALIDATING, OR
CURING DEFECTIVE CONTRACTS.  SUCH STATUTES, USUALLY DESIGNATED AS
"REMEDIAL," "CURATIVE," OR "ENABLING," MERELY REMOVE LEGAL OBSTACLES
AND PERMIT PARTIES TO CARRY OUT THEIR CONTRACTS ACCORDING TO THEIR OWN
DESIRES AND INTENTIONS.  SUCH STATUTES HAVE VALIDATED TRANSACTIONS THAT
WERE PREVIOUSLY ILLEGAL RELATING TO MORTGAGES, DEEDS, BONDS, AND OTHER
CONTRACTS.  FN7  PLACING THE STAMP OF LEGALITY ON A CONTRACT
VOLUNTARILY AND FAIRLY ENTERED INTO BY PARTIES FOR THEIR MUTUAL
ADVANTAGE TAKES NOTHING AWAY FROM EITHER OF THEM.  NO PARTY WHO HAS
MADE AN ILLEGAL CONTRACT HAS A RIGHT TO INSIST THAT IT REMAIN
PERMANENTLY ILLEGAL.  PUBLIC POLICY CANNOT BE MADE STATIC BY THOSE WHO,
FOR REASONS OF THEIR OWN, MAKE CONTRACTS BEYOND THEIR LEGAL POWERS.  NO
PERSON HAS A VESTED RIGHT TO BE PERMITTED TO EVADE CONTRACTS WHICH HE
HAS ILLEGALLY MADE.  FN8 

THIS COURT HELD THAT THE ENABLING AMENDMENT REMOVED THE OBSTACLE THAT
PREVENTED THE ENFORCEMENT OF A CONTRACT OF A NATIONAL BANK TO GIVE
SECURITY TO THE STATE OF GEORGIA FOR ITS DEPOSITS.  FN9 IN THAT CASE AS
IN THIS CASE, THE BANK MADE AN ULTRA VIRES AGREEMENT TO SECURE PUBLIC
DEPOSITS.  IN THAT CASE THE DEPOSITS WERE MADE AFTER THE LAW WAS PASSED
AND WERE LEGAL.  IN THIS CASE THE DEPOSITS WERE MADE BEFORE THE LAW WAS
PASSED AND WERE LEGAL.  IN THAT CASE AS IN THIS CASE, THE ONLY ILLEGAL
ELEMENT OF THE AGREEMENT WAS THE ATTEMPT TO GIVE SECURITY FOR PUBLIC
DEPOSITS.  IN THAT CASE AS IN THIS CASE, THE PARTIES PERMITTED THE
ORIGINAL ILLEGAL SECURITY AGREEMENT TO REMAIN UNALTERED IN ITS TERMS
AFTER THE AMENDMENT WAS ENACTED.  IN THAT CASE IT WAS HELD THAT THE
SECURITY AGREEMENT - ORIGINALLY ULTRA VIRES - BECAME ENFORCEABLE FROM
THE DATE THE AMENDMENT BECAME EFFECTIVE.  IN THIS CASE, WE HOLD THAT
THE SECURITY AGREEMENT - ORIGINALLY ULTRA VIRES - BECAME ENFORCEABLE
FROM THE DATE THE AMENDMENT BECAME EFFECTIVE.  LET THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS BE AFFIRMED. 

FN1  CH. 604, 46 STAT. 809, 12 U.S.C. 90. 

FN2  FIRST AMERICAN BANK & TRUST CO. V. PALM BEACH, 96 FLA. 247; 117
SO. 900, 65 A.L.R. 1398; DAVIS V. KNOTT, 109 FLA. 60; 147 SO. 276. 

FN3  LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY, 219 U.S. 467, 479;
JAMES V. MILWAUKEE, 16 WALL.  159, 161. 

FN4  TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245, 257, NOTE
11. 

FN5  SEE CASES COLLECTED IN 42 HARVARD LAW REV. 272; 79 UNIVERSITY OF
PENNSYLVANIA LAW REV. 608. 

FN6  SENATE REPORT NO. 67, 71ST CONG., 2D SESS. 

FN7  WATSON V. MERCER, 8 PET. 88(DEFECTIVE ACKNOWLEDGMENT IN DEED
VALIDATED BY GENERAL LAW); GALVESTON RAILROAD V. COWDREY, 11 WALL. 
459(MORTGAGE VALIDATED BY GENERAL STATUTE); RANDALL V. KREIGER, 23
WALL.  137(DEFECTIVE POWER OF ATTORNEY VALIDATED BY GENERAL STATUTE);
EWELL V. DAGGS, 108 U.S. 143(NOTE VALIDATED BY GENERAL STATUTE); GROSS
V. U.S. MORTGAGE CO., 108 U.S. 477(MORTGAGE VALIDATED BY GENERAL
STATUTE); UTTER V. FRANKLIN, 172 U.S. 416(BONDS VALIDATED BY GENERAL
LAW); WEST SIDE BELT R. CO. V. PITTSBURGH CONSTRUCTION CO., 219 U.S.
92(CONTRACT VALIDATED BY GENERAL STATUTE); BROWN V. BOSTON & MAINE
RAILROAD, 233 MASS. 502; 124 N.E. 322; (AGREEMENT TO PURCHASE STOCK
VALIDATED). 

FN8  EWELL V. DAGGS, SUPRA. 

FN9  LEWIS V. FIDELITY & DEPOSIT CO., 292 U.S. 559. 

MR. JUSTICE MCREYNOLDS, CONCURRING. 

THE CHALLENGED JUDGMENT, I THINK, SHOULD BE AFFIRMED UPON THE THEORY
THAT SUBSEQUENT TO THE ENABLING AMENDMENT OF JUNE 25, 1930, BOTH
PARTIES RECOGNIZED AN EXISTING OBLIGATION TO OBSERVE THE TERMS OF THE
PLEDGE AGREEMENT, AND ON THIS UNDERSTANDING MAINTAINED THE RELATIONSHIP
OF DEBTOR AND CREDITOR.  DISCUSSION OF OTHER QUESTIONS SEEMS
UNNECESSARY. 

PRIOR TO JUNE 25, 1930, THE PERRY NATIONAL BANK OBTAINED DEPOSITS OF
PUBLIC FUNDS BY UNDERTAKING TO HYPOTHECATE CERTAIN OF ITS ASSETS TO
SECURE THEIR PAYMENT.  THIS WENT BEYOND THE CORPORATE POWER THERETOFORE
CONFERRED.  TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245; MARION
V. SNEEDEN, 291 U.S. 262; LEWIS V. FIDELITY & DEPOSIT CO., 292 U.S.
559. 

THE AMENDMENT EMPOWERED THE BANK TO SECURE SUCH DEPOSITS BY A PLEDGE
OF ASSETS.  FOR MORE THAN THREE MONTHS THEREAFTER THE SECURITIES
ORIGINALLY HYPOTHECATED WERE ALLOWED TO REMAIN IN THE KEEPING OF THE
TRUSTEE WITHOUT SUGGESTION OF CHANGE IN THE OUTSTANDING AGREEMENT.  AND
DURING THAT PERIOD PRIOR DEPOSITS WERE ALLOWED TO REMAIN WITH THE
BANK.  IT CLOSED OCTOBER 18, 1930.  EARLIER INSOLVENCY IS NOT RELIED
UPON. 

THE RECEIVER CLAIMS THAT AS THE HYPOTHECATION WAS UNLAWFUL WHEN MADE
HE BECAME ENTITLED TO THE ASSETS FREE OF LIEN. 

AFTER THE AMENDMENT THE BANK HAD FULL POWER TO DO WHAT IT HAD
UNDERTAKEN TO DO.  FOR THREE MONTHS IT ACCEPTED THE BENEFITS OF THE
AGREEMENT AND ALLOWED THE ASSETS TO REMAIN WITH THE TRUSTEE.  ALL
PARTIES ASSUMED THE VALIDITY OF THE ARRANGEMENT AND ACTED IN RELIANCE
UPON IT.  THE RESULT WAS THE SAME AS IF THE ASSETS HAD BEEN REPOSSESSED
BY THE BANK AFTER JUNE 25, 1930, AND AGAIN HYPOTHECATED UNDER AN
AGREEMENT IDENTICAL WITH THE ORIGINAL ONE. 
..END :










JAMES V. DRAVO CONTRACTING CO., 302 U.S. 134 


NO. 3.  ARGUED APRIL 26, 27, 1937.  REARGUED OCTOBER 12, 1937.  -
DECIDED DECEMBER 6, 1937.  - 16 F.SUPP.  527, REVERSED. 


1.  A STATE CAN NOT LAY A GROSS RECEIPTS TAX ON BUSINESS CARRIED ON IN
ANOTHER STATE.  P. 138. 

2.  A STATE HAS NO POWER TO TAX IN A PLACE WITHIN THE STATE OVER
WHICH THE UNITED STATES HAS ACQUIRED EXCLUSIVE JURISDICTION.  P. 140. 

3.  THE TITLE TO BEDS OF NAVIGABLE STREAMS WITHIN A STATE IS VESTED
IN THE STATE, SUBJECT TO THE RIGHT OF THE UNITED STATES TO USE THE LAND
FOR THE IMPROVEMENT OF NAVIGATION.  P. 140. 

OCCUPATION OF THE RIVER BED BY THE UNITED STATES FOR THE PURPOSE OF
IMPROVING NAVIGATION DOES NOT DIVEST THE STATE OF ITS TITLE. 

4.  LOCKS AND DAMS ERECTED BY THE UNITED STATES FOR THE IMPROVEMENT
OF NAVIGATION ARE "NEEDFUL BUILDINGS" WITHIN THE MEANING OF THE CONST.,
ART. I, SEC. 8, CL. 17.  P. 141. 

CLAUSE 17 PROVIDES THAT CONGRESS SHALL HAVE POWER "TO EXERCISE
EXCLUSIVE LEGISLATION" OVER "ALL PLACES PURCHASED BY THE CONSENT OF THE
LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION
OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL
BUILDINGS."  "EXCLUSIVE LEGISLATION" IS CONSISTENT ONLY WITH EXCLUSIVE
JURISDICTION. 

5.  WEST VA. CODE OF 1931, ART. 1, CH. 1, SEC. 3, GIVES THE CONSENT
OF THE STATE TO ACQUISITION BY THE UNITED STATES OF LAND WITHIN THE
STATE FOR LOCKS, DAMS, NEEDFUL BUILDINGS, WORKS FOR IMPROVEMENT OF THE
NAVIGATION OF ANY WATER COURSE, OR FOR ANY OTHER PURPOSE FOR WHICH THE
SAME MAY BE REQUIRED BY THE GOVERNMENT OF THE UNITED STATES; AUTHORIZES
GIFTS OF LAND TO THE UNITED STATES BY MUNICIPALITIES FOR SUCH DESCRIBED
PURPOSES; CEDES TO THE UNITED STATES "CONCURRENT JURISDICTION WITH THIS
STATE IN AND OVER ANY LAND SO ACQUIRED  ...  FOR ALL PURPOSES";
PROVIDES THAT THE JURISDICTION SO CEDED IS TO CONTINUE ONLY DURING THE
OWNERSHIP OF THE UNITED STATES AND IS TO CEASE IF THE UNITED STATES
FAILS FOR FIVE CONSECUTIVE YEARS TO USE ANY SUCH LAND FOR THE PURPOSES
OF THE GRANT; AND RESERVES TO THE STATE THE RIGHT TO EXECUTE PROCESS
WITHIN THE LIMITS OF THE LAND ACQUIRED "AND SUCH OTHER JURISDICTION AND
AUTHORITY OVER THE SAME AS IS NOT INCONSISTENT WITH THE JURISDICTION
CEDED TO THE UNITED STATES BY VIRTUE OF SUCH ACQUISITION."  HELD: 

(1)  THE PROVISION AS TO CONCURRENT JURISDICTION QUALIFIES THE
PROVISION GIVING CONSENT, AND APPLIES TO LANDS ACQUIRED BY PURCHASE OR
CONDEMNATION AS WELL AS TO LANDS GIVEN BY MUNICIPALITIES.  P. 143. 

(2)  THE PROVISION RESERVING MERELY THE RIGHT TO EXECUTE PROCESS,
REPEATED FROM AN EARLIER STATUTE, DOES NOT DEROGATE FROM THE BROADER
RESERVATION OF JURISDICTION IN THE STATUTE AS AMENDED.  P. 145. 

6.  WHEN A STATE GIVES THE LEGISLATIVE CONSENT AS CONTEMPLATED BY THE
CONST., ART. I, SEC. 8, CL. 17, TO PURCHASE OF LAND BY THE UNITED
STATES FOR "NEEDFUL BUILDINGS," AS WHEN AFTER PRIOR PURCHASE OR
CONDEMNATION BY THE UNITED STATES IT CEDES JURISDICTION, IT MAY RESERVE
SUCH A CONCURRENT JURISDICTION AS WILL NOT OPERATE TO DEPRIVE THE
UNITED STATES OF THE ENJOYMENT OF THE PROPERTY FOR THE PURPOSES FOR
WHICH IT IS ACQUIRED.  P. 146. 

WEST VIRGINIA, BY A RESERVATION QUALIFYING HER CONSENT TO THEIR
ACQUISITION, RETAINED HER JURISDICTION TO TAX, OVER LANDS PURCHASED OR
CONDEMNED BY THE UNITED STATES FOR NAVIGATION IMPROVEMENTS ON A RIVER. 

7.  AN INDEPENDENT CONTRACTOR, ENGAGED UNDER HIS CONTRACT WITH THE
GOVERNMENT IN THE CONSTRUCTION OF LOCKS AND DAMS FOR THE IMPROVEMENT OF
NAVIGATION, IS NOT AN INSTRUMENTALITY OF THE GOVERNMENT.  P. 149. 

8.  AS APPLIED TO SUCH A CONTRACTOR, A NON-DISCRIMINATORY STATE TAX
ON HIS GROSS RECEIPTS UNDER THE CONTRACT IS NOT UNCONSTITUTIONAL AS A
TAX LAID ON THE CONTRACT ITSELF OR AS OTHERWISE DIRECTLY BURDENING THE
GOVERNMENT.  P. 149. 

9.  APPLICATION OF THE PRINCIPLE THAT GOVERNMENTAL INSTRUMENTALITIES
OF THE UNITED STATES ARE IMMUNE FROM TAXATION BY THE STATES, AND VICE
VERSA, REQUIRES CLOSE DISTINCTIONS, IN ORDER TO MAINTAIN THE ESSENTIAL
FREEDOM OF GOVERNMENT IN PERFORMING ITS FUNCTIONS, WITHOUT UNDULY
LIMITING THE TAXING POWER WHICH IS EQUALLY ESSENTIAL TO BOTH NATION AND
STATE UNDER OUR DUAL SYSTEM.  P. 150. 

DECISIONS ON IMMUNITY OF GOVERNMENT BONDS AND OF GOVERNMENT PURCHASES
OF COMMODITIES, HELD INAPPLICABLE IN CASE OF TAX ON EARNINGS OF
INDEPENDENT CONTRACTOR RENDERING SERVICES TO THE GOVERNMENT.  PP. 150
153. 

10.  THE QUESTION OF THE TAXABILITY OF A CONTRACTOR UPON THE FRUITS
OF HIS SERVICES TO THE GOVERNMENT IS CLOSELY ANALOGOUS TO THAT OF THE
TAXABILITY OF HIS PROPERTY USED IN PERFORMING THE SERVICES.  HIS
EARNINGS FLOW FROM HIS WORK; HIS PROPERTY IS EMPLOYED IN SECURING
THEM.  IN BOTH CASES, THE TAXES INCREASE THE COST OF THE WORK AND
DIMINISH HIS PROFITS.  P. 153. 

11.  THE FACT THAT THE TAX IN THIS CASE WAS ON GROSS RATHER THAN NET
RECEIPTS DOES NOT PROVE IT AN UNCONSTITUTIONAL BURDEN ON THE
GOVERNMENT.  P. 157. 

DISTINGUISHED FROM CASES WHERE TAXES ON GROSS RECEIPTS OF INDIVIDUALS
ENGAGED IN INTERSTATE COMMERCE HAVE BEEN HELD INVALID UNDER THE
COMMERCE CLAUSE. 

12.  ASSUMING, (WHAT IS NOT NECESSARILY SO) THAT A STATE TAX ON
CONTRACTOR'S GROSS RECEIPTS MAY INCREASE COST OF SERVICE TO THE
GOVERNMENT, THAT FACT WOULD NOT INVALIDATE THE TAX, ANY MORE THAN IT
WOULD A TAX ON THE CONTRACTOR'S PROPERTY EQUIPMENT USED IN THE
PERFORMANCE OF THE CONTRACT.  P. 159. 

13.  SEMBLE THAT CONGRESS HAS POWER TO PREVENT INTERFERENCE WITH THE
OPERATIONS OF THE GOVERNMENT THROUGH STATE TAXATION LAID ON RECEIPTS OF
THOSE WHO RENDER IT SERVICES UNDER CONTRACTS.  P. 160. 

JAMES, STATE TAX COMMISSIONER, V. DRAVO CONTRACTING CO. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF WEST VIRGINIA. 

APPEAL FROM A FINAL DECREE OF THE THREE-JUDGE DISTRICT COURT
ENJOINING THE COLLECTION OF A STATE TAX. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE CONSTITUTIONAL VALIDITY OF A
TAX IMPOSED BY THE STATE OF WEST VIRGINIA UPON THE GROSS RECEIPTS OF
RESPONDENT UNDER CONTRACTS WITH THE UNITED STATES. 

RESPONDENT, THE DRAVO CONTRACTING COMPANY, IS A PENNSYLVANIA
CORPORATION ENGAGED IN THE GENERAL CONTRACTING BUSINESS, WITH ITS
PRINCIPAL OFFICE AND PLANT AT PITTSBURGH IN THAT STATE, AND IS ADMITTED
TO DO BUSINESS IN THE STATE OF WEST VIRGINIA.  IN THE YEARS 1932 AND
1933, RESPONDENT ENTERED INTO FOUR CONTRACTS WITH THE UNITED STATES FOR
THE CONSTRUCTION OF LOCKS AND DAMS IN THE KANAWHA RIVER AND LOCKS IN
THE OHIO RIVER, BOTH NAVIGABLE STREAMS.  FN1  THE STATE TAX
COMMISSIONER ASSESSED RESPONDENT FOR THE YEARS 1933 AND 1934 IN THE SUM
OF $135,761.51(TAXES AND PENALTIES) UPON THE GROSS AMOUNTS RECEIVED
FROM THE UNITED STATES UNDER THESE CONTRACTS. 

RESPONDENT BROUGHT SUIT IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA TO RESTRAIN THE COLLECTION
OF THE TAX.  THE CASE WAS HEARD BY THREE JUDGES (28 U.S.C. 380) AND
UPON FINDINGS THE COURT ENTERED A FINAL DECREE GRANTING A PERMANENT
INJUNCTION.  16 F.SUPP.  527.  THE CASE COMES HERE ON APPEAL. 

THE STATUTE IS KNOWN AS THE GROSS SALES AND INCOME TAX LAW.  CODE OF
WEST VIRGINIA 1931, C. 11, ART. 13, AMENDED EFFECTIVE MAY 27, 1933. 
ACTS OF 1933, C. 33.  IT PROVIDES FOR "ANNUAL PRIVILEGE TAXES" ON
ACCOUNT OF "BUSINESS AND OTHER ACTIVITIES."  THE CLAUSE IN QUESTION
HERE IS AS FOLLOWS: 

"UPON EVERY PERSON ENGAGING OR CONTINUING WITHIN THIS STATE IN THE
BUSINESS OF CONTRACTING, THE TAX SHALL BE EQUAL TO TWO PER CENT. OF THE
GROSS INCOME OF THE BUSINESS."  FN2 

THE TAX WAS IN ADDITION TO OTHER STATE TAXES UPON RESPONDENT, TO WIT,
THE LICENSE TAX ON FOREIGN CORPORATIONS (CODE OF WEST VIRGINIA, C. 11,
ART. 12, SECS. 69, 71) AND AD VALOREM TAXES UPON REAL AND PERSONAL
PROPERTY OF THE CONTRACTOR WITHIN THE STATE. 

THE QUESTIONS PRESENTED ARE (1) WHETHER THE STATE HAD TERRITORIAL
JURISDICTION TO IMPOSE THE TAX, AND (2) WHETHER THE TAX WAS INVALID AS
LAYING A BURDEN UPON THE OPERATIONS OF THE FEDERAL GOVERNMENT. 

AFTER HEARING WE DIRECTED REARGUMENT AND REQUESTED THE ATTORNEY
GENERAL OF THE UNITED STATES TO PRESENT THE VIEWS OF THE GOVERNMENT
UPON THE TWO QUESTIONS ABOVE STATED.  REARGUMENT HAS BEEN HAD AND THE
GOVERNMENT HAS BEEN HEARD. 

FIRST.  AS TO TERRITORIAL JURISDICTION.   - UNLESS THE ACTIVITIES
WHICH ARE THE SUBJECT OF THE TAX WERE CARRIED ON WITHIN THE TERRITORIAL
LIMITS OF WEST VIRGINIA, THE STATE HAD NO JURISDICTION TO IMPOSE THE
TAX.  HANS REES' SONS V. NORTH CAROLINA, 283 U.S. 123, 133, 134;
SHAFFER V. CARTER, 252 U.S. 37, 57; SURPLUS TRADING CO. V. COOK, 281
U.S. 647.  THE QUESTION HAS TWO ASPECTS (1) AS TO WORK ALLEGED TO HAVE
BEEN DONE OUTSIDE THE EXTERIOR LIMITS OF WEST VIRGINIA AND (2) AS TO
WORK DONE WITHIN THOSE LIMITS BUT (A) IN THE BED OF THE RIVERS, (B) ON
PROPERTY ACQUIRED BY THE FEDERAL GOVERNMENT ON THE BANKS OF THE RIVERS,
AND (C) ON PROPERTY LEASED BY RESPONDENT AND USED FOR THE ACCOMMODATION
OF HIS EQUIPMENT. 

1.  A LARGE PART OF RESPONDENT'S WORK WAS PERFORMED AT ITS PLANT AT
PITTSBURGH.  THE STIPULATION OF FACTS SHOWS THAT RESPONDENT PURCHASED
OUTSIDE THE STATE OF WEST VIRGINIA MATERIALS USED IN THE MANUFACTURE OF
THE ROLLER GATES, LOCK GATES, CRANES, SUBSTRUCTURE RACKS AND SPUR RIMS,
STRUCTURAL STEEL, PATTERNS, HOISTING MECHANISM AND EQUIPMENT, UNDER
EACH OF ITS CONTRACTS, AND FABRICATED THE SAME AT ITS PITTSBURGH
PLANT.  THE ROLLER GATES AND THE APPURTENANT EQUIPMENT WERE
PREASSEMBLED AT RESPONDENTS' SHOPS AT PITTSBURGH AND WERE THERE
INSPECTED AND TESTED BY OFFICERS OF THE UNITED STATES GOVERNMENT.  THE
MATERIALS AND EQUIPMENT FABRICATED AT PITTSBURGH WERE THERE STORED
UNTIL TIME FOR DELIVERY, AND THE APPROPRIATE UNITS AS PREPARED FOR
SHIPMENT WERE THEN TRANSPORTED BY RESPONDENT TO THE DESIGNATED SITES IN
WEST VIRGINIA AND THERE INSTALLED.  THE UNITED STATES KNEW AT THE TIME
THE CONTRACTS WERE MADE THAT THE ABOVE DESCRIBED WORK WAS TO BE
PERFORMED AT THE PLAINTIFF'S MAIN PLANT.  THE CONTRACTS PROVIDED FOR
PARTIAL PAYMENTS AS THE WORK PROGRESSED AND THAT ALL THE MATERIAL AND
WORK COVERED BY THE PARTIAL PAYMENTS SHOULD THEREUPON BECOME "THE SOLE
PROPERTY OF THE GOVERNMENT."  PAYMENTS BY THE GOVERNMENT WERE MADE FROM
TIME TO TIME ACCORDINGLY. 

IT IS CLEAR THAT WEST VIRGINIA HAD NO JURISDICTION TO LAY A TAX UPON
RESPONDENT WITH RESPECT TO THIS WORK DONE IN PENNSYLVANIA.  AS TO THE
MATERIAL AND EQUIPMENT THERE FABRICATED, THE BUSINESS AND ACTIVITIES OF
RESPONDENT IN WEST VIRGINIA CONSISTED OF THE INSTALLATION AT THE
RESPECTIVE SITES WITHIN THAT STATE AND AN APPORTIONMENT WOULD IN ANY
EVENT BE NECESSARY TO LIMIT THE TAX ACCORDINGLY.  HANS REES' SONS V.
NORTH CAROLINA, SUPRA. 

2.  AS TO WORK DONE WITHIN THE EXTERIOR LIMITS OF WEST VIRGINIA, THE
QUESTION IS WHETHER THE UNITED STATES HAS ACQUIRED EXCLUSIVE
JURISDICTION OVER THE RESPECTIVE SITES.  WHEREVER THE UNITED STATES HAS
SUCH JURISDICTION THE STATE WOULD HAVE NO AUTHORITY TO LAY THE TAX. 
SURPLUS TRADING CO. V. COOK, SUPRA. 

(A)  AS TO THE BEDS OF THE KANAWHA AND OHIO RIVERS.  THE PRESENT
QUESTION IS NOT ONE OF THE PARAMOUNT AUTHORITY OF THE FEDERAL
GOVERNMENT TO HAVE THE WORK PERFORMED FOR PURPOSES WITHIN THE FEDERAL
PROVINCE (SCRANTON V. WHEELER, 179 U.S. 141, 163; UNITED STATES V.
CHANDLER-DUNBAR CO., 229 U.S. 53, 61, 62; LEWIS BLUE POINT OYSTER CO.
V. BRIGGS, 229 U.S. 82, 88), OR WHETHER THE TAX LAYS A BURDEN UPON
GOVERNMENTAL OPERATIONS; IT IS SIMPLY ONE OF TERRITORIAL JURISDICTION. 

THE TITLE TO THE BEDS OF THE RIVERS WAS IN THE STATE.  POLLARD V.
HAGAN, 3 HOW.  212, 230; SHIVELY V. BOWLBY, 152 U.S. 1, 26; PORT OF
SEATTLE V. OREGON-WASHINGTON R. CO., 255 U.S. 56, 63; BORAX
CONSOLIDATED V. LOS ANGELES, 296 U.S. 10, 15, 16.  IT WAS SUBJECT TO
THE POWER OF CONGRESS TO USE THE LANDS UNDER THE STREAMS "FOR ANY
STRUCTURE WHICH THE INTEREST OF NAVIGATION IN ITS JUDGMENT MAY
REQUIRE."  LEWIS BLUE POINT OYSTER CO. V. BRIGGS, SUPRA.  BUT, ALTHOUGH
BURDENED BY THAT SERVITUDE, THE STATE HELD THE TITLE.  GIBSON V. UNITED
STATES, 166 U.S. 269, 271, 272; PORT OF SEATTLE V. OREGON-WASHINGTON R.
CO., SUPRA; BORAX CONSOLIDATED V. LOS ANGELES, SUPRA.  THERE DOES NOT
APPEAR TO HAVE BEEN ANY ACQUISITION BY THE UNITED STATES OF TITLE TO
THOSE LANDS, UNLESS, AS RESPONDENT URGES, THE OCCUPATION OF THE BEDS
FOR THE PURPOSE OF THE IMPROVEMENTS CONSTITUTED AN ACQUISITION OF
TITLE.  BUT AS THE OCCUPATION WAS SIMPLY THE EXERCISE OF THE DOMINANT
RIGHT OF THE FEDERAL GOVERNMENT (GIBSON V. UNITED STATES, SUPRA, P.
276) THE SERVIENT TITLE CONTINUED AS BEFORE.  NO TRANSFER OF THAT TITLE
APPEARS.  THE SOLICITOR GENERAL CONCEDED IN HIS ARGUMENT AT BAR THAT
THE STATE OF WEST VIRGINIA RETAINED ITS TERRITORIAL JURISDICTION OVER
THE RIVER BEDS AND WE ARE OF THE OPINION THAT THIS IS THE CORRECT
VIEW. 

(B)  AS TO LANDS ACQUIRED BY THE UNITED STATES BY PURCHASE OR
CONDEMNATION FOR THE PURPOSES OF THE IMPROVEMENTS.  LANDS WERE THUS
ACQUIRED ON THE BANKS OF THE RIVERS FROM INDIVIDUAL OWNERS AND THE
UNITED STATES OBTAINED TITLE IN FEE SIMPLE.  RESPONDENT CONTENDS THAT
BY VIRTUE OF ARTICLE I, SECTION 8, CLAUSE 17, OF THE FEDERAL
CONSTITUTION THE UNITED STATES ACQUIRED EXCLUSIVE JURISDICTION.  FN3 

CLAUSE 17 PROVIDES THAT CONGRESS SHALL HAVE POWER "TO EXERCISE
EXCLUSIVE LEGISLATION" OVER "ALL PLACES PURCHASED BY THE CONSENT OF THE
LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION
OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL
BUILDINGS."  "EXCLUSIVE LEGISLATION" IS CONSISTENT ONLY WITH EXCLUSIVE
JURISDICTION.  SURPLUS TRADING CO. V. COOK, SUPRA, P. 652.  AS WE SAID
IN THAT CASE, IT IS NOT UNUSUAL FOR THE UNITED STATES TO OWN WITHIN A
STATE LANDS WHICH ARE SET APART AND USED FOR PUBLIC PURPOSES.  SUCH
OWNERSHIP AND USE WITHOUT MORE DO NOT WITHDRAW THE LANDS FROM THE
JURISDICTION OF THE STATE.  THE LANDS "REMAIN PART OF HER TERRITORY AND
WITHIN THE OPERATION OF HER LAWS, SAVE THAT THE LATTER CANNOT AFFECT
THE TITLE OF THE UNITED STATES OR EMBARRASS IT IN USING THE LANDS OR
INTERFERE WITH ITS RIGHT OF DISPOSAL."  ID., P. 650.  CLAUSE 17 GOVERNS
THOSE CASES WHERE THE UNITED STATES ACQUIRES LANDS WITH THE CONSENT OF
THE LEGISLATURE OF THE STATE FOR THE PURPOSES THERE DESCRIBED.  IF
LANDS ARE OTHERWISE ACQUIRED, AND JURISDICTION IS CEDED BY THE STATE TO
THE UNITED STATES, THE TERMS OF THE CESSION, TO THE EXTENT THAT THEY
MAY LAWFULLY BE PRESCRIBED, THAT IS, CONSISTENTLY WITH THE CARRYING OUT
OF THE PURPOSE OF THE ACQUISITION, DETERMINE THE EXTENT OF THE FEDERAL
JURISDICTION.  FORT LEAVENWORTH R. CO. V. LOWE, 114 U.S. 527, 538, 539;
PALMER V. BARRETT, 162 U.S. 399, 402, 403; ARLINGTON HOTEL CO. V. FANT,
278 U.S. 439, 451; UNITED STATES V. UNZEUTA, 281 U.S. 138, 142; SURPLUS
TRADING CO. V. COOK, SUPRA. 

ARE THE LOCKS AND DAMS IN THE INSTANT CASE "NEEDFUL BUILDINGS" WITHIN
THE PURVIEW OF CLAUSE 17?  THE STATE CONTENDS THAT THEY ARE NOT.  IF
THE CLAUSE WERE CONSTRUED ACCORDING TO THE RULE OF EJUSDEM GENERIS, IT
COULD BE PLAUSIBLY CONTENDED THAT "NEEDFUL BUILDINGS" ARE THOSE OF THE
SAME SORT AS FORTS, MAGAZINES, ARSENALS AND DOCKYARDS, THAT IS,
STRUCTURES FOR MILITARY PURPOSES.  AND IT MAY BE THAT THE THOUGHT OF
SUCH "STRONGHOLDS" WAS UPPERMOST IN THE MINDS OF THE FRAMERS.  ELLIOT'S
DEBATES, VOL. 5, PP. 130, 440, 511; CF. STORY ON THE CONSTITUTION, VOL.
2, SEC. 1224.  BUT SUCH A NARROW CONSTRUCTION HAS BEEN FOUND NOT TO BE
ABSOLUTELY REQUIRED AND TO BE UNSUPPORTED BY SOUND REASON IN VIEW OF
THE NATURE AND FUNCTIONS OF THE NATIONAL GOVERNMENT WHICH THE
CONSTITUTION ESTABLISHED. 

IN SHARON V. HILL, 24 FED. 726, 730, 731, JUSTICE FIELD (SITTING WITH
JUDGE SAWYER) CONSIDERED THE PROVISION TO BE APPLICABLE TO A COURT
BUILDING AND CUSTOM HOUSE ON LAND WHICH HAD BEEN PURCHASED WITH THE
CONSENT OF THE STATE.  IN BATTLE V. UNITED STATES, 209 U.S. 36, 37, WE
HELD THAT "POST OFFICES ARE AMONG THE 'OTHER NEEDFUL BUILDINGS'" WITHIN
CLAUSE 17.  SEE, ALSO, UNITED STATES V. WURTZBARGER, 276 FED. 753, 755;
ARLINGTON HOTEL V. FANT, SUPRA.  LOCKS AND DAMS FOR THE IMPROVEMENT OF
NAVIGATION, WHICH ARE AS CLEARLY WITHIN THE FEDERAL AUTHORITY AS POST
OFFICES, HAVE BEEN REGARDED AS "NEEDFUL BUILDINGS."  UNITED STATES V.
TUCKER, 122 FED. 518, 522.  WE TAKE THAT VIEW.  WE CONSTRUE THE PHRASE
"OTHER NEEDFUL BUILDINGS" AS EMBRACING WHATEVER STRUCTURES ARE FOUND TO
BE NECESSARY IN THE PERFORMANCE OF THE FUNCTIONS OF THE FEDERAL
GOVERNMENT. 

THE LEGISLATURE OF WEST VIRGINIA BY GENERAL STATUTE HAD GIVEN ITS
CONSENT TO THE ACQUISITION BY THE UNITED STATES, BUT QUESTIONS ARE
PRESENTED AS TO THE CONSTRUCTION AND EFFECT OF THE CONSENT.  THE
PROVISION IS FOUND IN SEC. 3 OF CHAPTER 1, ARTICLE 1, OF THE CODE OF
WEST VIRGINIA OF 1931.  THE FULL TEXT IS SET OUT IN THE MARGIN.  FN4
BY THE FIRST PARAGRAPH THE CONSENT OF THE STATE IS GIVEN "TO THE
ACQUISITION BY THE UNITED STATES, OR UNDER ITS AUTHORITY, BY PURCHASE,
LEASE, CONDEMNATION, OR OTHERWISE, OF ANY LAND ACQUIRED, OR TO BE
ACQUIRED IN THIS STATE BY THE UNITED STATES, FROM ANY INDIVIDUAL, BODY
POLITIC OR CORPORATE, FOR SITES FOR  ...  LOCKS, DAMS,  ...  OR ANY
NEEDFUL BUILDINGS OR STRUCTURES OR PROVING GROUNDS, OR WORKS FOR THE
IMPROVEMENT OF THE NAVIGATION OF ANY WATER-COURSE  ...  OR FOR ANY
OTHER PURPOSE FOR WHICH THE SAME MAY BE NEEDED OR REQUIRED BY THE
GOVERNMENT OF THE UNITED STATES."  BY THE SECOND PARAGRAPH PROVISION IS
MADE FOR GIFTS BY MUNICIPALITIES TO THE UNITED STATES OF LAND FOR ANY
OF THE PURPOSES DESCRIBED IN THE FIRST PARAGRAPH.  THE THIRD PARAGRAPH
CEDES TO THE UNITED STATES "CONCURRENT JURISDICTION WITH THIS STATE IN
AND OVER ANY LAND SO ACQUIRED  ...  FOR ALL PURPOSES."  THE
JURISDICTION SO CEDED IS TO CONTINUE ONLY DURING THE OWNERSHIP OF THE
UNITED STATES AND IS TO CEASE IF THE UNITED STATES FAILS FOR FIVE
CONSECUTIVE YEARS TO USE ANY SUCH LAND FOR THE PURPOSES OF THE GRANT. 

BY A FURTHER PROVISION IN SEC. 4 FN5  THE STATE RESERVES THE RIGHT TO
EXECUTE PROCESS WITHIN THE LIMITS OF THE LAND ACQUIRED "AND SUCH OTHER
JURISDICTION AND AUTHORITY OVER THE SAME AS IS NOT INCONSISTENT WITH
THE JURISDICTION CEDED TO THE UNITED STATES BY VIRTUE OF SUCH
ACQUISITION." 

THE CONTENTION IS MADE THAT THE THIRD PARAGRAPH OF SEC. 3 AS TO
"CONCURRENT JURISDICTION" WAS NOT IN THE CODE OF 1923, BUT WAS A LATER
ADDITION (1931), AND SHOULD NOT BE TAKEN AS QUALIFYING THE FIRST
PARAGRAPH.  BUT THE THIRD PARAGRAPH WAS ADDED BEFORE THE ACQUISITION
HERE IN QUESTION AND "ANY LAND SO ACQUIRED" MANIFESTLY REFERS TO THE
ACQUISITIONS PREVIOUSLY DESCRIBED WHICH EXPRESSLY EMBRACED ALL SUCH
ACQUISITIONS IN THE FUTURE.  THE SUGGESTION THAT THE THIRD PARAGRAPH
APPLIES ONLY TO THE LANDS GIVEN BY MUNICIPALITIES TO THE UNITED STATES
UNDER THE SECOND PARAGRAPH IS WITHOUT FORCE.  THE THIRD PARAGRAPH
APPEARS TO HAVE BEEN TAKEN FROM THE PROVISION, IN THE SAME LANGUAGE, OF
SEC. 19 OF THE CODE OF VIRGINIA OF 1919 WHICH WAS NOT QUALIFIED BY ANY
INTERVENING PROVISION AS TO MUNICIPALITIES.  SEE CODE OF WEST VIRGINIA,
1931, C. 1, ART. 1, SEC. 3, REVISERS' NOTE.  THE REVISERS SAY IT WAS
ADDED TO "MAKE MORE DEFINITE THE PROVISIONS AS TO JURISDICTION."  ID.
WE ARE NOT REFERRED TO ANY DECISION OF THE SUPREME COURT OF WEST
VIRGINIA CONSTRUING THIS PARAGRAPH.    REFERENCE IS ALSO MADE TO THE
PROVISION OF SEC. 4 AS TO SERVICE OF PROCESS.  THIS IS SAID TO BE
UNNECESSARY IF ONLY CONCURRENT JURISDICTION IS GRANTED.  BUT THIS
PROVISION WAS A PART OF THE FORMER STATUTE (1923) AND CANNOT BE TAKEN
AS DEROGATING FROM THE FORCE OF THE EXPLICIT AMENDMENT BY THE LATER
ADDITION IN THE THIRD PARAGRAPH OF THE PRESENT SEC. 3.  AND APPARENTLY
TO PREVENT MISUNDERSTANDING, THERE WAS AN AMENDMENT AT THE SAME TIME OF
THE PROVISION NOW IN SEC. 4 BY THE ADDITION OF THE LAST CLAUSE  FN6  IN
ORDER TO MAKE THE RESERVATION OF THE STATE'S JURISDICTION "MORE
COMPREHENSIVE."  CODE OF WEST VIRGINIA, 1931, C. 1, ART. 1, SEC. 4,
REVISERS' NOTE. 

THE THIRD PARAGRAPH OF SEC. 3 CAREFULLY DEFINES THE JURISDICTION
CEDED BY THE STATE AND THERE IS NO PERMISSIBLE CONSTRUCTION WHICH WOULD
IGNORE THIS DEFINITE EXPRESSION OF INTENTION IN CONSIDERING THE EFFECT
UPON JURISDICTION OF THE CONSENT GIVEN BY THE FIRST PARAGRAPH. 

BUT IT IS URGED THAT IF THE PARAGRAPH BE CONSTRUED AS SEEKING TO
QUALIFY THE CONSENT OF THE STATE, IT MUST BE TREATED AS INOPERATIVE. 
THAT IS, THAT THE STATE CANNOT QUALIFY ITS CONSENT, WHICH MUST BE TAKEN
AS CARRYING WITH IT EXCLUSIVE JURISDICTION BY VIRTUE OF CLAUSE 17.  THE
POINT WAS SUGGESTED BY JUSTICE STORY IN UNITED STATES V. CORNELL, FED.
CAS. NO. 14,867; 2 MASON 60, 65, 66, BUT THE CONSTRUCTION PLACED UPON
THE CONSENT IN THAT CASE MADE DECISION OF THE POINT UNNECESSARY.  THERE
THE PLACE (FORT ADAMS IN NEWPORT HARBOR) HAD BEEN PURCHASED WITH THE
CONSENT OF THE STATE, TO WHICH WAS ADDED A RESERVATION FOR THE SERVICE
OF CIVIL AND CRIMINAL PROCESS.  JUSTICE STORY HELD THAT SUCH A
RESERVATION WAS NOT INCOMPATIBLE WITH A CESSION OF EXCLUSIVE
JURISDICTION TO THE UNITED STATES, AS THE RESERVATION OPERATED "ONLY AS
A CONDITION" AND "AS AN AGREEMENT OF THE NEW SOVEREIGN TO PERMIT ITS
FREE EXERCISE AS QUOAD HOC HIS OWN PROCESS."  RESERVATIONS OF THAT SORT
WERE FOUND TO BE FREQUENT IN GRANTS MADE BY THE STATES TO THE UNITED
STATES IN ORDER TO AVOID THE GRANTED PLACES BEING MADE A SANCTUARY FOR
FUGITIVES FROM JUSTICE.  STORY ON THE CONSTITUTION, VOL. 2, SEC. 1225. 
REFERENCE IS MADE TO STATEMENTS IN THE GENERAL DISCUSSION IN THE
OPINION IN FORT LEAVENWORTH R. CO. V. LOWE, SUPRA, BUT THESE ARE NOT
DECISIVE OF THE PRESENT QUESTION.  THE DECISION IN THAT CASE WAS THAT
THE STATE RETAINED ITS JURISDICTION TO TAX THE PROPERTY OF A RAILROAD
COMPANY WITHIN THE FORT LEAVENWORTH MILITARY RESERVATION, AS FEDERAL
JURISDICTION HAD NOT BEEN RESERVED WHEN KANSAS WAS ADMITTED AS A STATE
AND, WHEN THE STATE SUBSEQUENTLY CEDED JURISDICTION TO THE UNITED
STATES, THERE WAS SAVED TO THE STATE THE RIGHT "TO TAX RAILROAD,
BRIDGE, AND OTHER CORPORATIONS, THEIR FRANCHISES AND PROPERTY, ON SAID
RESERVATION."  THE TERMS OF THE CESSION IN THIS RESPECT GOVERNED THE
EXTENT OF THE FEDERAL JURISDICTION.  SEE SURPLUS TRADING CO. V. COOK,
SUPRA.  THERE ARE OBITER DICTA IN OTHER CASES BUT THE POINT NOW RAISED
DOES NOT APPEAR TO HAVE BEEN DEFINITELY DETERMINED. 

IT IS NOT QUESTIONED THAT THE STATE MAY REFUSE ITS CONSENT AND RETAIN
JURISDICTION CONSISTENT WITH THE GOVERNMENTAL PURPOSES FOR WHICH THE
PROPERTY WAS ACQUIRED THE RIGHT OF EMINENT DOMAIN INHERES IN THE
FEDERAL GOVERNMENT BY VIRTUE OF ITS SOVEREIGNTY AND THUS IT MAY,
REGARDLESS OF THE WISHES EITHER OF THE OWNERS OR OF THE STATES, ACQUIRE
THE LANDS WHICH IT NEEDS WITHIN THEIR BORDERS.  KOHL V. UNITED STATES,
91 U.S. 367, 371, 372.  IN THAT EVENT, AS IN CASES OF ACQUISITION BY
PURCHASE WITHOUT CONSENT OF THE STATE, JURISDICTION IS DEPENDENT UPON
CESSION BY THE STATE AND THE STATE MAY QUALIFY ITS CESSION BY
RESERVATIONS NOT INCONSISTENT WITH THE GOVERNMENTAL USES.  STORY ON THE
CONSTITUTION, VOL. 2, SEC. 1227; KOHL V. UNITED STATES, SUPRA, P. 374;
FORT LEAVENWORTH R. CO. V. LOWE, SUPRA; SURPLUS TRADING CO. V. COOK,
SUPRA; UNITED STATES V. UNZEUTA, SUPRA.  THE RESULT TO THE FEDERAL
GOVERNMENT IS THE SAME WHETHER CONSENT IS REFUSED AND CESSION IS
QUALIFIED BY A RESERVATION OF CONCURRENT JURISDICTION, OR CONSENT TO
THE ACQUISITION IS GRANTED WITH A LIKE QUALIFICATION.  AS THE SOLICITOR
GENERAL HAS POINTED OUT, A TRANSFER OF LEGISLATIVE JURISDICTION CARRIES
WITH IT NOT ONLY BENEFITS BUT OBLIGATIONS, AND IT MAY BE HIGHLY
DESIRABLE, IN THE INTEREST BOTH OF THE NATIONAL GOVERNMENT AND OF THE
STATE, THAT THE LATTER SHOULD NOT BE ENTIRELY OUSTED OF ITS
JURISDICTION.  THE POSSIBLE IMPORTANCE OF RESERVING TO THE STATE
JURISDICTION FOR LOCAL PURPOSES WHICH INVOLVE NO INTERFERENCE WITH THE
PERFORMANCE OF GOVERNMENTAL FUNCTIONS IS BECOMING MORE AND MORE CLEAR
AS THE ACTIVITIES OF THE GOVERNMENT EXPAND AND LARGE AREAS WITHIN THE
STATES ARE ACQUIRED.  THERE APPEARS TO BE NO REASON WHY THE UNITED
STATES SHOULD BE COMPELLED TO ACCEPT EXCLUSIVE JURISDICTION OR THE
STATE BE COMPELLED TO GRANT IT IN GIVING ITS CONSENT TO PURCHASES. 

NORMALLY, WHERE GOVERNMENTAL CONSENT IS ESSENTIAL, THE CONSENT MAY BE
GRANTED UPON TERMS APPROPRIATE TO THE SUBJECT AND TRANSGRESSING NO
CONSTITUTIONAL LIMITATION.  THUS, AS A STATE MAY NOT BE SUED WITHOUT
ITS CONSENT AND "PERMISSION IS ALTOGETHER VOLUNTARY," IT FOLLOWS "THAT
IT MAY PRESCRIBE THE TERMS AND CONDITIONS ON WHICH IT CONSENTS TO BE
SUED."  BEERS V. ARKANSAS, 20 HOW.  527, 529; SMITH V. REEVES, 178 U.S.
436, 441, 442.  TREATIES OF THE UNITED STATES ARE TO BE MADE WITH THE
ADVICE AND CONSENT OF THE SENATE, BUT IT IS FAMILIAR PRACTICE FOR THE
SENATE TO ACCOMPANY THE EXERCISE OF THIS AUTHORITY WITH RESERVATIONS. 
HYDE, INTERNATIONAL LAW, VOL. 2, SEC. 519.  THE CONSTITUTION PROVIDES
THAT NO STATE WITHOUT THE CONSENT OF CONGRESS SHALL ENTER INTO A
COMPACT WITH ANOTHER STATE.  IT CAN HARDLY BE DOUBTED THAT IN GIVING
CONSENT CONGRESS MAY IMPOSE CONDITIONS.  SEE ARIZONA V. CALIFORNIA, 292
U.S. 341, 345. 

CLAUSE 17 CONTAINS NO EXPRESS STIPULATION THAT THE CONSENT OF THE
STATE MUST BE WITHOUT RESERVATIONS.  WE THINK THAT SUCH A STIPULATION
SHOULD NOT BE IMPLIED.  WE ARE UNABLE TO RECONCILE SUCH AN IMPLICATION
WITH THE FREEDOM OF THE STATE AND ITS ADMITTED AUTHORITY TO REFUSE OR
QUALIFY CESSIONS OF JURISDICTION WHEN PURCHASES HAVE BEEN MADE WITHOUT
CONSENT OR PROPERTY HAS BEEN ACQUIRED BY CONDEMNATION.  IN THE PRESENT
CASE THE RESERVATION BY WEST VIRGINIA OF CONCURRENT JURISDICTION DID
NOT OPERATE TO DEPRIVE THE UNITED STATES OF THE ENJOYMENT OF THE
PROPERTY FOR THE PURPOSES FOR WHICH IT WAS ACQUIRED, AND WE ARE OF THE
OPINION THAT THE RESERVATION WAS APPLICABLE AND EFFECTIVE. 

(C)  AS TO PROPERTY LEASED BY RESPONDENT AND USED FOR THE
ACCOMMODATION OF ITS EQUIPMENT.  THERE CAN BE NO QUESTION AS TO THE
JURISDICTION OF THE STATE OVER THIS AREA. 

WE CONCLUDE THAT, SO FAR AS TERRITORIAL JURISDICTION IS CONCERNED,
THE STATE HAD AUTHORITY TO LAY THE TAX WITH RESPECT TO THE RESPONDENT'S
ACTIVITIES CARRIED ON AT THE RESPECTIVE DAM SITES. 

SECOND.  IS THE TAX INVALID UPON THE GROUND THAT IT LAYS A DIRECT
BURDEN UPON THE FEDERAL GOVERNMENT?  THE SOLICITOR GENERAL SPEAKING FOR
THE GOVERNMENT SUPPORTS THE CONTENTION OF THE STATE THAT THE TAX IS
VALID.  RESPONDENT URGES THE CONTRARY. 

THE TAX IS NOT LAID UPON THE GOVERNMENT, ITS PROPERTY OR OFFICERS. 
DOBBINS V. COMMISSIONERS, 16 PET. 435, 449, 450. 

THE TAX IS NOT LAID UPON AN INSTRUMENTALITY OF THE GOVERNMENT. 
MCCULLOCH V. MARYLAND, 4 WHEAT.  316; OSBORN V. BANK OF THE UNITED
STATES, 9 WHEAT.  738; GILLESPIE V. OKLAHOMA, 257 U.S. 501; FEDERAL
LAND BANK V. CROSLAND, 261 U.S. 374; CLALLAM COUNTY V. UNITED STATES,
263 U.S. 341; NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S. 401. 
RESPONDENT IS AN INDEPENDENT CONTRACTOR.  THE TAX IS NON
DISCRIMINATORY. 

THE TAX IS NOT LAID UPON THE CONTRACT OF THE GOVERNMENT.  OSBORN V.
BANK OF THE UNITED STATES, SUPRA, P. 867; WESTON V. CHARLESTON, 2 PET.
449, 468, 475; POLLOCK V. FARMERS' LOAN & TRUST CO., 157 U.S. 429, 581,
582, 586; TELEGRAPH COMPANY V. TEXAS, 105 U.S. 460, 464, 466; LELOUP V.
PORT OF MOBILE, 127 U.S. 640, 646; WILLIAMS V. TALLADEGA, 226 U.S. 404,
418, 419; FEDERAL LAND BANK V. CROSLAND, SUPRA; WILLCUTS V. BUNN, 282
U.S. 216; PANHANDLE OIL CO. V. MISSISSIPPI EX REL. KNOX, 277 U.S. 218,
222; INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570, 574; GRAVES
V. TEXAS COMPANY, 298 U.S. 393, 401.  THE APPLICATION OF THE PRINCIPLE
WHICH DENIES VALIDITY TO SUCH A TAX HAS REQUIRED THE OBSERVING OF CLOSE
DISTINCTIONS IN ORDER TO MAINTAIN THE ESSENTIAL FREEDOM OF GOVERNMENT
IN PERFORMING ITS FUNCTIONS, WITHOUT UNDULY LIMITING THE TAXING POWER
WHICH IS EQUALLY ESSENTIAL TO BOTH NATION AND STATE UNDER OUR DUAL
SYSTEM.  IN WESTON V. CHARLESTON, SUPRA, AND POLLOCK V. FARMERS' LOAN &
TRUST CO., SUPRA, TAXES ON INTEREST FROM GOVERNMENT SECURITIES WERE
HELD TO BE LAID ON THE GOVERNMENT'S CONTRACT - UPON THE POWER TO BORROW
MONEY - AND HENCE WERE INVALID.  BUT WE HELD IN WILLCUTS V. BUNN,
SUPRA, THAT THE IMMUNITY FROM TAXATION DOES NOT EXTEND TO THE PROFITS
DERIVED BY THEIR OWNERS UPON THE SALE OF GOVERNMENT BONDS.  WE SAID
(ID., P. 225): "THE POWER TO TAX IS NO LESS ESSENTIAL THAN THE POWER TO
BORROW MONEY, AND, IN PRESERVING THE LATTER, IT IS NOT NECESSARY TO
CRIPPLE THE FORMER BY EXTENDING THE CONSTITUTIONAL EXEMPTION FROM
TAXATION TO THOSE SUBJECTS WHICH FALL WITHIN THE GENERAL APPLICATION OF
NON-DISCRIMINATORY LAWS, AND WHERE NO DIRECT BURDEN IS LAID UPON THE
GOVERNMENTAL INSTRUMENTALITY, AND THERE IS ONLY A REMOTE, IF ANY,
INFLUENCE UPON THE EXERCISE OF THE FUNCTIONS OF GOVERNMENT."  MANY
ILLUSTRATIONS WERE GIVEN. 

IN TELEGRAPH COMPANY V. TEXAS, SUPRA, A SPECIFIC STATE TAX WAS
IMPOSED ON EACH MESSAGE SENT BY AN OFFICER OF THE UNITED STATES ON
PUBLIC BUSINESS OVER THE LINES OF THE TELEGRAPH COMPANY.  IN HOLDING
THE TAX TO BE INVALID THE COURT LEANED HEAVILY UPON THE FACT THAT THE
COMPANY HAD ACCEPTED THE TERMS OF THE ACT OF CONGRESS OF 1866(14 STAT.
221) AUTHORIZING THE USE OF THE MILITARY AND POST ROADS AND REQUIRING
IN RETURN THAT GOVERNMENT MESSAGES HAVE PRIORITY OVER ALL OTHER
BUSINESS AND BE TRANSMITTED AT RATES FIXED ANNUALLY BY THE POSTMASTER
GENERAL.  THE COURT CONSIDERED THAT THE COMPANY HAD THUS BECOME AN
AGENT OF THE GOVERNMENT FOR THE TRANSMISSION OF MESSAGES ON PUBLIC
BUSINESS.  SEE TO THE SAME EFFECT LELOUP V. PORT OF MOBILE, SUPRA.  THE
SAME POINT WAS TAKEN IN WILLIAMS V. TALLADEGA, SUPRA, INVOLVING A LOCAL
LICENSE FEE APPLICABLE TO THE SAME TELEGRAPH COMPANY.  THE COURT SAID
THAT THE TAX WAS LAID UPON "THE PRIVILEGE OF CARRYING ON A BUSINESS A
PART OF WHICH IS THAT OF A GOVERNMENTAL AGENCY CONSTITUTED UNDER A LAW
OF THE UNITED STATES AND ENGAGED IN AN ESSENTIAL PART OF THE PUBLIC
BUSINESS - COMMUNICATION BETWEEN THE OFFICERS AND DEPARTMENTS OF THE
FEDERAL GOVERNMENT."  THE EMPHASIS PUT IN THESE CASES UPON THE EFFECT
OF THE ACCEPTANCE OF THE OBLIGATION OF THE ACT OF CONGRESS SHOWS THAT
THEY CANNOT BE REGARDED AS SUSTAINING THE BROAD CLAIM OF IMMUNITY HERE
ADVANCED. 

IN PANHANDLE OIL CO. V. MISSISSIPPI EX REL. KNOX, SUPRA, AND INDIAN
MOTOCYCLE CO. V. UNITED STATES, SUPRA, THE TAXES WERE HELD TO BE
INVALID AS LAID ON THE SALES TO THE RESPECTIVE GOVERNMENTS, THE ONE
BEING A STATE TAX ON A SALE TO THE UNITED STATES, AND THE OTHER A
FEDERAL TAX ON THE SALE TO A MUNICIPAL CORPORATION OF MASSACHUSETTS.  A
SIMILAR RESULT WAS REACHED IN GRAVES V. TEXAS COMPANY, SUPRA.  THESE
CASES HAVE BEEN DISTINGUISHED AND MUST BE DEEMED TO BE LIMITED TO THEIR
PARTICULAR FACTS.  THUS, IN WHEELER LUMBER CO. V. UNITED STATES, 281
U.S. 572, 579, THE FEDERAL TAX ON TRANSPORTATION AS APPLIED TO LUMBER
WHICH THE VENDOR HAD ENGAGED TO SELL TO A COUNTY FOR PUBLIC BRIDGES AND
TO DELIVER F.O.B. AT THE PLACE OF DESTINATION AT A STATED PRICE, WAS
HELD TO BE LAID NOT ON THE SALE BUT ON THE TRANSPORTATION.  ALTHOUGH
THE TRANSPORTATION WAS WITH A VIEW TO A DEFINITE SALE, IT WAS HELD TO
BE NOT PART OF THE SALE BUT PRELIMINARY TO IT AND "WHOLLY THE VENDOR'S
AFFAIR."  IN LIGGETT & MYERS CO. V. UNITED STATES, 299 U.S. 383, 386,
THE FEDERAL TAX AS APPLIED TO TOBACCO PURCHASED BY A STATE FOR USE IN A
STATE HOSPITAL WAS SUSTAINED AS A TAX UPON THE MANUFACTURE OF THE
TOBACCO AND NOT UPON THE SALE.  HENCE, THE COURT SAID, "THE EFFECT UPON
THE PURCHASER WAS INDIRECT AND IMPOSED NO PROHIBITED BURDEN." 

IN ALWARD V. JOHNSON, 282 U.S. 509, 514, THE COURT SUSTAINED A STATE
TAX UPON THE GROSS RECEIPTS OF AN INDEPENDENT CONTRACTOR CARRYING THE
MAILS.  THE TAXPAYER OPERATED AN AUTOMOTIVE STAGE LINE.  TWO-THIRDS OF
HIS GROSS RECEIPTS, UPON THE WHOLE OF WHICH HE WAS TAXED, WERE DERIVED
FROM CARRIAGE OF UNITED STATES MAILS AND THE REMAINDER FROM CARRIAGE OF
PASSENGERS AND FREIGHT.  THE COURT FOUND THAT THE PROPERTY USED IN
EARNING THESE RECEIPTS WAS DEVOTED CHIEFLY TO CARRYING THE MAILS AND
THAT WITHOUT HIS CONTRACT WITH THE GOVERNMENT THE STAGE LINE COULD NOT
BE OPERATED PROFITABLY.  IN UPHOLDING THE TAX UPON HIS GROSS RECEIPTS
WE DISTINGUISHED PANHANDLE OIL CO. V. MISSISSIPPI EX REL. KNOX, SUPRA,
SAYING:  "THERE WAS NO TAX UPON THE CONTRACT FOR SUCH CARRIAGE; THE
BURDEN LAID UPON THE PROPERTY EMPLOYED AFFECTED OPERATIONS OF THE
FEDERAL GOVERNMENT ONLY REMOTELY  ...  THE FACTS IN PANHANDLE OIL CO.
V. MISSISSIPPI EX REL. KNOX, 277 U.S. 218, AND NEW JERSEY BELL TEL. CO.
V. STATE BOARD, 280 U.S. 338, WERE HELD TO ESTABLISH DIRECT
INTERFERENCE WITH OR BURDEN UPON THE EXERCISE OF A FEDERAL RIGHT.  THE
PRINCIPLES THERE APPLIED ARE NOT CONTROLLING HERE."    THESE DECISIONS
SHOW CLEARLY THE EFFORT OF THE COURT IN THIS DIFFICULT FIELD TO APPLY
THE PRACTICAL CRITERION TO WHICH WE REFERRED IN WILLCUTS V. BUNN,
SUPRA, AND AGAIN IN GRAVES V. TEXAS COMPANY, SUPRA.  THERE IS NO
INELUCTABLE LOGIC WHICH MAKES THE DOCTRINE OF IMMUNITY WITH RESPECT TO
GOVERNMENT BONDS APPLICABLE TO THE EARNINGS OF AN INDEPENDENT
CONTRACTOR RENDERING SERVICES TO THE GOVERNMENT.  THAT DOCTRINE
RECOGNIZES THE DIRECT EFFECT OF A TAX WHICH "WOULD OPERATE ON THE POWER
TO BORROW BEFORE IT IS EXERCISED" (POLLOCK V. FARMERS' LOAN & TRUST
CO., SUPRA) AND WHICH WOULD DIRECTLY AFFECT THE GOVERNMENT'S OBLIGATION
AS A CONTINUING SECURITY.  VITAL CONSIDERATIONS ARE THERE INVOLVED
RESPECTING THE PERMANENT RELATIONS OF THE GOVERNMENT TO INVESTORS IN
ITS SECURITIES AND ITS ABILITY TO MAINTAIN ITS CREDIT,  -
CONSIDERATIONS WHICH ARE NOT FOUND IN CONNECTION WITH CONTRACTS MADE
FROM TIME TO TIME FOR THE SERVICES OF INDEPENDENT CONTRACTORS.  AND IN
DEALING WITH THE QUESTION OF THE TAXABILITY OF SUCH CONTRACTORS UPON
THE FRUITS OF THEIR WORK, WE ARE NOT BOUND TO CONSIDER OR DECIDE HOW
FAR IMMUNITY FROM TAXATION IS TO BE DEEMED ESSENTIAL TO THE PROTECTION
OF GOVERNMENT IN RELATION TO ITS PURCHASES OF COMMODITIES OR WHETHER
THE DOCTRINE ANNOUNCED IN THE CASES OF THAT CHARACTER WHICH WE HAVE
CITED DESERVES REVISION OR RESTRICTION. 

THE QUESTION OF THE TAXABILITY OF A CONTRACTOR UPON THE FRUITS OF HIS
SERVICES IS CLOSELY ANALOGOUS TO THAT OF THE TAXABILITY OF THE PROPERTY
OF THE CONTRACTOR WHICH IS USED IN PERFORMING THE SERVICES.  HIS
EARNINGS FLOW FROM HIS WORK; HIS PROPERTY IS EMPLOYED IN SECURING
THEM.  IN BOTH CASES, THE TAXES INCREASE THE COST OF THE WORK AND
DIMINISH HIS PROFITS.  MANY YEARS AGO THE COURT RECOGNIZED AND ENFORCED
THE DISTINCTION BETWEEN A TAX LAID DIRECTLY UPON A GOVERNMENT CONTRACT
OR AN INSTRUMENTALITY OF THE UNITED STATES AND A TAX UPON THE PROPERTY
EMPLOYED BY AN AGENT OR CONTRACTOR IN PERFORMING SERVICES FOR THE
UNITED STATES.  "TAXATION OF THE AGENCY IS TAXATION OF THE MEANS;
TAXATION OF THE PROPERTY OF THE AGENT IS NOT ALWAYS, OR GENERALLY,
TAXATION OF THE MEANS."  THOMSON V. PACIFIC RAILROAD, 9 WALL.  579,
591.  IN EXPOUNDING THE GROUNDS FOR THE CONCLUSION THAT THE PROPERTY OF
THE CONTRACTOR WAS TAXABLE, THE COURT ENVISAGED THE SERIOUS
CONSEQUENCES WHICH WOULD FOLLOW IF IMMUNITY WERE MAINTAINED.  IN
RAILROAD COMPANY V. PENISTON, 18 WALL.  5, 33, 36, THE COURT SAID: 

"IT MAY, THEREFORE, BE CONSIDERED AS SETTLED THAT NO CONSTITUTIONAL
IMPLICATIONS PROHIBIT A STATE TAX UPON THE PROPERTY OF AN AGENT OF THE
GOVERNMENT MERELY BECAUSE IT IS THE PROPERTY OF SUCH AN AGENT.  A
CONTRARY DOCTRINE WOULD GREATLY EMBARRASS THE STATES IN THE COLLECTION
OF THEIR NECESSARY REVENUE WITHOUT ANY CORRESPONDING ADVANTAGE TO THE
UNITED STATES.  A VERY LARGE PROPORTION OF THE PROPERTY WITHIN THE
STATES IS EMPLOYED IN EXECUTION OF THE POWERS OF THE GOVERNMENT.  IT
BELONGS TO GOVERNMENTAL AGENTS, AND IT IS NOT ONLY USED, BUT IT IS
NECESSARY FOR THEIR AGENCIES.  UNITED STATES MAILS, TROOPS, AND
MUNITIONS OF WAR ARE CARRIED UPON ALMOST EVERY RAILROAD.  TELEGRAPH
LINES ARE EMPLOYED IN THE NATIONAL SERVICE.  SO ARE STEAMBOATS, HORSES,
STAGE-COACHES, FOUNDRIES, SHIPYARDS, AND MULTITUDES OF MANUFACTURING
ESTABLISHMENTS.  THEY ARE THE PROPERTY OF NATURAL PERSONS, OR OF
CORPORATIONS, WHO ARE INSTRUMENTS OR AGENTS OF THE GENERAL GOVERNMENT,
AND THEY ARE THE HANDS BY WHICH THE OBJECTS OF THE GOVERNMENT ARE
ATTAINED.  WERE THEY EXEMPT FROM LIABILITY TO CONTRIBUTE TO THE REVENUE
OF THE STATES IT IS MANIFEST THE STATE GOVERNMENTS WOULD BE PARALYZED. 
WHILE IT IS OF THE UTMOST IMPORTANCE THAT ALL THE POWERS VESTED BY THE
CONSTITUTION OF THE UNITED STATES IN THE GENERAL GOVERNMENT SHOULD BE
PRESERVED IN FULL EFFICIENCY, AND WHILE RECENT EVENTS HAVE CALLED FOR
THE MOST UNEMBARRASSED EXERCISE OF MANY OF THOSE POWERS, IT HAS NEVER
BEEN DECIDED THAT STATE TAXATION OF SUCH PROPERTY IS IMPLIEDLY
PROHIBITED.... 

"IT IS, THEREFORE, MANIFEST THAT EXEMPTION OF FEDERAL AGENCIES FROM
STATE TAXATION IS DEPENDENT, NOT UPON THE NATURE OF THE AGENTS, OR UPON
THE MODE OF THEIR CONSTITUTION, OR UPON THE FACT THAT THEY ARE AGENTS,
BUT UPON THE EFFECT OF THE TAX; THAT IS, UPON THE QUESTION WHETHER THE
TAX DOES IN TRUTH DEPRIVE THEM OF POWER TO SERVE THE GOVERNMENT AS THEY
WERE INTENDED TO SERVE IT, OR DOES HINDER THE EFFICIENT EXERCISE OF
THEIR POWER.  A TAX UPON THEIR PROPERTY HAS NO SUCH NECESSARY EFFECT. 
IT LEAVES THEM FREE TO DISCHARGE THE DUTIES THEY HAVE UNDERTAKEN TO
PERFORM.  A TAX UPON THEIR OPERATIONS IS A DIRECT OBSTRUCTION TO THE
EXERCISE OF FEDERAL POWER." 

THE DISSENTING OPINION OF JUSTICE BRADLEY (WITH WHOM JUSTICE FIELD
CONCURRED) WHILE CONSIDERING THAT THE STATE TAX WAS INVALID AS APPLIED
TO PROPERTY OF THE UNION PACIFIC RAILROAD BECAUSE OF ITS SPECIAL
RELATION TO THE GOVERNMENT WHICH HAD CHARTERED IT, EMPHASIZED THE
DISTINCTION BETWEEN SUCH A SITUATION AS HE CONCEIVED IT AND ONE WHERE
THE GOVERNMENT HAS ENTERED INTO A CONTRACT FOR SERVICES TO AID IN THE
DISCHARGE OF GOVERNMENTAL FUNCTIONS.  HIS OBSERVATIONS ARE STRIKINGLY
PERTINENT HERE (ID. PP. 41, 42): 

"THE CASE DIFFERS TOTO COELO FROM THAT WHEREIN THE GOVERNMENT ENTERS
INTO A CONTRACT WITH AN INDIVIDUAL OR CORPORATION TO PERFORM SERVICES
NECESSARY FOR CARRYING ON THE FUNCTIONS OF GOVERNMENT - AS FOR CARRYING
THE MAILS, OR TROOPS, OR SUPPLIES, OR FOR BUILDING SHIPS OR WORKS FOR
GOVERNMENT USE.  IN THOSE CASES THE GOVERNMENT HAS NO FURTHER CONCERN
WITH THE CONTRACTOR THAN IN HIS CONTRACT AND ITS EXECUTION.  IT HAS NO
CONCERN WITH HIS PROPERTY OR HIS FACULTIES INDEPENDENT OF THAT.  HOW
MUCH HE MAY BE TAXED BY, OR WHAT DUTIES HE MAY BE OBLIGED TO PERFORM
TOWARDS, HIS STATE IS OF NO CONSEQUENCE TO THE GOVERNMENT, SO LONG AS
HIS CONTRACT AND ITS EXECUTION ARE NOT INTERFERED WITH.  IN THAT CASE
THE CONTRACT IS THE MEANS EMPLOYED FOR CARRYING INTO EXECUTION THE
POWERS OF THE GOVERNMENT, AND THE CONTRACT ALONE, AND NOT THE
CONTRACTOR, IS EXEMPT FROM TAXATION OR OTHER INTERFERENCE BY THE STATE
GOVERNMENT." 

THE QUESTION OF IMMUNITY FROM TAXATION OF THE EARNINGS OF AN
INDEPENDENT CONTRACTOR UNDER A GOVERNMENT CONTRACT AROSE IN METCALF &
EDDY V. MITCHELL, 269 U.S. 514.  THE SERVICES WERE RENDERED TO A
POLITICAL SUBDIVISON OF A STATE AND THE CONTRACTORS' EARNINGS WERE HELD
TO BE SUBJECT TO THE FEDERAL INCOME TAX.  THAT WAS A PIVOTAL DECISION,
FOR WE HAD TO MEET THE QUESTION WHETHER THE EARNINGS OF THE CONTRACTOR
STOOD UPON THE SAME FOOTING AS INTEREST UPON GOVERNMENT SECURITIES OR
THE INCOME OF AN INSTRUMENTALITY OF GOVERNMENT.  IT IS TRUE THAT THE
TAX WAS LAID UPON NET INCOME.  BUT IF THE TAX UPON THE EARNINGS OF THE
CONTRACTOR HAD BEEN REGARDED AS IMPOSING A DIRECT BURDEN UPON A
GOVERNMENTAL AGENCY, THE FACT THAT THE TAX WAS LAID UPON NET INCOME
WOULD NOT SAVE IT UNDER THE DOCTRINE OF GILLESPIE V. OKLAHOMA, SUPRA.
AND IF THE DOCTRINE OF THE IMMUNITY OF INTEREST UPON GOVERNMENT BONDS
HAD BEEN DEEMED TO APPLY, THE TAX WOULD HAVE BEEN EQUALLY BAD WHETHER
THE TAX WAS UPON NET OR GROSS INCOME.  THE RULING IN POLLOCK V.
FARMERS' LOAN & TRUST CO., SUPRA, RELATED TO NET INCOME.  THE UNIFORM
RULING IN SUCH A CASE HAS BEEN THAT THE INTEREST UPON GOVERNMENT
SECURITIES CANNOT BE INCLUDED IN GROSS INCOME FOR THE PURPOSE OF AN
INCOME TAX COMPUTED UPON NET INCOME.  THE PITH OF THE DECISION IN THE
CASE OF METCALF & EDDY IS THAT GOVERNMENT BONDS AND CONTRACTS FOR THE
SERVICES OF AN INDEPENDENT CONTRACTOR ARE NOT UPON THE SAME FOOTING. 
THE DECISION WAS A DEFINITE REFUSAL TO EXTEND THE DOCTRINE OF CASES
RELATING TO GOVERNMENT SECURITIES, AND TO THE INSTRUMENTALITIES OF
GOVERNMENT, TO EARNINGS UNDER CONTRACTS FOR LABOR. 

THE REASONING UPON WHICH THAT DECISION WAS BASED IS CONTROLLING
HERE.  WE RECOGNIZED THAT IN A BROAD SENSE "THE BURDEN OF FEDERAL
TAXATION NECESSARILY SETS AN ECONOMIC LIMIT TO THE PRACTICAL OPERATION
OF THE TAXING POWER OF THE STATES, AND VICE VERSA."  "TAXATION BY
EITHER THE STATE OR THE FEDERAL GOVERNMENT AFFECTS IN SOME MEASURE THE
COST OF OPERATION OF THE OTHER."  AS "NEITHER GOVERNMENT MAY DESTROY
THE OTHER NOR CURTAIL IN ANY SUBSTANTIAL MANNER THE EXERCISE OF ITS
POWERS," WE SAID THAT THE LIMITATION UPON THE TAXING POWER OF EACH, SO
FAR AS IT AFFECTS THE OTHER, "MUST RECEIVE A PRACTICAL CONSTRUCTION
WHICH PERMITS BOTH TO FUNCTION WITH THE MINIMUM OF INTERFERENCE EACH
WITH THE OTHER; AND THAT LIMITATION CANNOT BE SO VARIED OR EXTENDED AS
SERIOUSLY TO IMPAIR EITHER THE TAXING POWER OF THE GOVERNMENT IMPOSING
THE TAX  ...  OR THE APPROPRIATE EXERCISE OF THE FUNCTIONS OF THE
GOVERNMENT AFFECTED BY IT."  METCALF & EDDY V. MITCHELL, SUPRA, PP.
523, 524. 

WE SAID FURTHER THAT THE NATURE OF THE GOVERNMENTAL AGENCIES OR THE
MODE OF THEIR CONSTITUTION COULD NOT BE DISREGARDED IN PASSING ON THE
QUESTION OF TAX EXEMPTION, AS IT WAS OBVIOUS THAT AN AGENCY MIGHT BE OF
SUCH A CHARACTER OR SO INTIMATELY CONNECTED WITH THE EXERCISE OF A
POWER OR THE PERFORMANCE OF A DUTY BY THE ONE GOVERNMENT "THAT ANY
TAXATION OF IT BY THE OTHER WOULD BE SUCH A DIRECT INTERFERENCE WITH
THE FUNCTIONS OF GOVERNMENT ITSELF AS TO BE PLAINLY BEYOND THE TAXING
POWER."  AND IT WAS ON THAT PRINCIPLE THAT "ANY TAXATION BY ONE
GOVERNMENT OF THE SALARY OF AN OFFICER OF THE OTHER, OR THE PUBLIC
SECURITIES OF THE OTHER, OR AN AGENCY CREATED AND CONTROLLED BY THE
OTHER, EXCLUSIVELY TO ENABLE IT TO PERFORM A GOVERNMENTAL FUNCTION,"
WAS PROHIBITED.  WE CONCLUDED THAT A NON-DISCRIMINATORY TAX UPON THE
EARNINGS OF AN INDEPENDENT CONTRACTOR DERIVED FROM SERVICES RENDERED TO
THE GOVERNMENT COULD NOT BE SAID TO BE IMPOSED "UPON AN AGENCY OF
GOVERNMENT IN ANY TECHNICAL SENSE" AND COULD NOT "BE DEEMED TO BE AN
INTERFERENCE WITH GOVERNMENT, OR AN IMPAIRMENT OF THE EFFICIENCY OF ITS
AGENCIES IN ANY SUBSTANTIAL WAY."  ID., PP. 524, 525. 

WHILE THE METCALF CASE WAS ONE OF A FEDERAL TAX, THE REASONING AND
THE PRACTICAL CRITERION IT ADOPTS ARE CLEARLY APPLICABLE TO THE CASE OF
A STATE TAX UPON EARNINGS UNDER A CONTRACT WITH THE FEDERAL
GOVERNMENT. 

AS WE HAVE OBSERVED, THE FACT THAT THE TAX IN THE PRESENT CASE IS
LAID UPON THE GROSS RECEIPTS, INSTEAD OF NET EARNINGS, IS NOT A
CONTROLLING DISTINCTION.  RESPONDENT INVOKES OUR DECISIONS IN THE FIELD
OF INTERSTATE COMMERCE, WHERE A TAX UPON THE GROSS INCOME OF THE
TAXPAYER DERIVED FROM INTERSTATE COMMERCE HAS LONG BEEN HELD TO BE AN
UNCONSTITUTIONAL BURDEN.  PHILADELPHIA & SOUTHERN S.S. CO. V.
PENNSYLVANIA, 122 U.S. 326; CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S.
292, 297; UNITED STATES GLUE CO. V. OAK CREEK, 247 U.S. 321, 328, 329;
FISHER'S BLEND STATION V. TAX COMMISSION, 297 U.S. 650, 655, 656. 

BUT THE DIFFERENCE IS PLAIN.  PERSONS HAVE A CONSTITUTIONAL RIGHT TO
ENGAGE IN INTERSTATE COMMERCE FREE FROM BURDENS IMPOSED BY A STATE TAX
UPON THE BUSINESS WHICH CONSTITUTES SUCH COMMERCE OR THE PRIVILEGE OF
ENGAGING IN IT OR THE RECEIPTS AS SUCH DERIVED FROM IT.  MINNESOTA RATE
CASES, 230 U.S. 352, 400.  INTERSTATE COMMERCE IS NOT AN ABSTRACTION;
IT CONNOTES THE TRANSACTIONS OF THOSE ENGAGED IN IT AND THEY ENJOY THE
DESCRIBED IMMUNITY IN THEIR OWN RIGHT.  HERE, RESPONDENT'S ACTIVITIES
AT THE DAM SITES ARE LOCAL AND NOT IN INTERSTATE COMMERCE.  RESPONDENT
HAS NO CONSTITUTIONAL RIGHT TO IMMUNITY FROM NONDISCRIMINATORY LOCAL
TAXATION AND THE MERE FACT THAT THE TAX IN QUESTION BURDENS RESPONDENT
IS NO DEFENSE.  THE DEFENSE IS THAT THE TAX BURDENS THE GOVERNMENT AND
RESPONDENT'S RIGHT IS AT BEST A DERIVATIVE ONE.  HE ASSERTS AN IMMUNITY
WHICH, IF IT EXISTS, PERTAINS TO THE GOVERNMENT AND WHICH THE
GOVERNMENT DISCLAIMS. 

IN ALWARD V. JOHNSON, SUPRA, AS ALREADY NOTED, THE TAX WAS UPON GROSS
RECEIPTS AND THESE WERE DERIVED FROM A CONTRACT FOR CARRYING THE MAILS,
BUT THE TAX WAS UPHELD.  IT THERE APPEARED THAT THE TAX WAS IN LIEU OF
TAXES UPON THE PROPERTY AND HAD BEEN TREATED BY THE STATE COURT AS A
PROPERTY TAX.  BUT IF THE TAX AS ACTUALLY LAID UPON THE GROSS RECEIPTS
PLACED A DIRECT BURDEN UPON THE FEDERAL GOVERNMENT SO AS TO INTERFERE
WITH THE PERFORMANCE OF ITS FUNCTIONS, IT COULD NOT BE SAVED BECAUSE IT
WAS IN LIEU OF A TAX UPON PROPERTY OR WAS SO CHARACTERIZED.  SEE
HANOVER INSURANCE CO. V. HARDING, 272 U.S. 494, 509, 510. 

IN FIDELITY & DEPOSIT CO. V. PENNSYLVANIA, 240 U.S. 319, WE SUSTAINED
THE TAX UPON THE GROSS PREMIUMS RECEIVED BY A COMPANY AS SURETY UPON
BONDS RUNNING TO THE UNITED STATES FOR "INTERNAL REVENUE, CUSTOMS,
UNITED STATES GOVERNMENT OFFICIALS, UNITED STATES GOVERNMENT CONTRACTS
AND BANKS FOR UNITED STATES DEPOSITS," AND "BONDS GIVEN IN COURTS OF
THE UNITED STATES IN LITIGATION THERE PENDING."  WHILE THE CHALLENGED
TAX WAS "AN EXACTION FOR THE PRIVILEGE OF DOING BUSINESS," WE HELD IT
TO BE VALID AS "MERE CONTRACTS BETWEEN PRIVATE CORPORATIONS AND THE
UNITED STATES DO NOT NECESSARILY RENDER THE FORMER ESSENTIAL
GOVERNMENTAL AGENCIES AND CONFER FREEDOM FROM STATE CONTROL."  ID., PP.
320, 323.  THE PREMIUMS, OF COURSE, WERE PAID BY THOSE WHO WERE
REQUIRED TO OBTAIN THE BONDS, BUT THE FACT THAT THE CONTRACTS WERE WITH
THE UNITED STATES AND THAT THE TAX WAS LAID UPON GROSS RECEIPTS FROM
THE WRITING OF SUCH CONTRACTS, DID NOT MAKE THE TAX AN INVALID
EXACTION. 

IN BOTH THE ALWARD CASE AND THAT OF THE FIDELITY & DEPOSIT COMPANY,
THE ARGUMENT, PRESSED HERE, THAT THE STATE WITHHELD FOR ITS USE "A PART
OF EVERY DOLLAR" RECEIVED BY THE TAXPAYER, WAS EQUALLY PERTINENT AND
EQUALLY UNAVAILING. 

THE CONTENTION ULTIMATELY RESTS UPON THE POINT THAT THE TAX INCREASES
THE COST TO THE GOVERNMENT OF THE SERVICE RENDERED BY THE TAXPAYER. 
BUT THIS IS NOT NECESSARILY SO.  THE CONTRACTOR, TAKING INTO
CONSIDERATION THE STATE OF THE COMPETITIVE MARKET FOR THE SERVICE, MAY
BE WILLING TO BEAR THE TAX AND ABSORB IT IN HIS ESTIMATED PROFIT RATHER
THAN LOSE THE CONTRACT.  IN THE PRESENT CASE, IT IS STIPULATED THAT
RESPONDENT'S ESTIMATED COST OF THE RESPECTIVE WORKS, AND THE BIDS BASED
THEREON, DID NOT INCLUDE, AND THERE WAS NOT INCLUDED IN THE CONTRACT
PRICE PAID TO RESPONDENT, ANY SPECIFIED ITEM TO COVER THE GROSS
RECEIPTS TAX, ALTHOUGH RESPONDENT KNEW OF THE WEST VIRGINIA ACT
IMPOSING IT, AND RESPONDENT'S ESTIMATES OF COST DID INCLUDE
"COMPENSATION AND LIABILITY INSURANCE, CONSTRUCTION BOND AND PROPERTY
TAXES."    BUT IF IT BE ASSUMED THAT THE GROSS RECEIPTS TAX MAY
INCREASE THE COST TO THE GOVERNMENT, THAT FACT WOULD NOT INVALIDATE THE
TAX.  WITH RESPECT TO THAT EFFECT, A TAX ON THE CONTRACTOR'S GROSS
RECEIPTS WOULD NOT DIFFER FROM A TAX ON THE CONTRACTOR'S PROPERTY AND
EQUIPMENT NECESSARILY USED IN THE PERFORMANCE OF THE CONTRACT. 
CONCEDEDLY, SUCH A TAX MAY VALIDLY BE LAID.  PROPERTY TAXES ARE
NATURALLY, AS IN THIS CASE, RECKONED AS A PART OF THE EXPENSE OF DOING
THE WORK.  TAXES MAY VALIDLY BE LAID NOT ONLY ON THE CONTRACTOR'S
MACHINERY BUT ON THE FUEL USED TO OPERATE IT.  IN TRINITYFARM
CONSTRUCTION CO. V. GROSJEAN, 291 U.S. 466, THE TAXPAYER ENTERED INTO A
CONTRACT WITH THE FEDERAL GOVERNMENT FOR THE CONSTRUCTION OF LEVEES IN
AID OF NAVIGATION AND GASOLINE WAS USED TO SUPPLY POWER FOR TAXPAYER'S
MACHINERY.  A STATE EXCISE TAX ON THE GASOLINE SO USED WAS SUSTAINED. 
THE COURT SAID THAT IF THE PAYMENT OF THE STATE TAXES IMPOSED ON THE
PROPERTY AND OPERATIONS OF THE TAXPAYER "AFFECTS THE FEDERAL GOVERNMENT
AT ALL, IT AT MOST GIVES RISE TO A BURDEN WHICH IS CONSEQUENTIAL AND
REMOTE AND NOT TO ONE THAT IS NECESSARY, IMMEDIATE OR DIRECT."  BUT A
TAX OF THAT SORT UNQUESTIONABLY INCREASES THE EXPENSE OF THE CONTRACTOR
IN PERFORMING HIS SERVICE AND MAY, IF IT ENTERS INTO THE CONTRACTOR'S
ESTIMATE, INCREASE THE COST TO THE GOVERNMENT.  THE FACT THAT THE TAX
ON THE GROSS RECEIPTS OF THE CONTRACTOR IN THE ALWARD CASE, SUPRA,
MIGHT HAVE INCREASED THE COST TO THE GOVERNMENT OF THE CARRIAGE OF THE
MAILS DID NOT IMPRESS THE COURT AS MILITATING AGAINST ITS VALIDITY. 

THERE IS THE FURTHER SUGGESTION THAT IF THE PRESENT TAX OF TWO PER
CENT. IS UPHELD, THE STATE MAY LAY A TAX OF TWENTY PER CENT. OR FIFTY
PER CENT. OR EVEN MORE, AND MAKE IT DIFFICULT OR IMPOSSIBLE FOR THE
GOVERNMENT TO OBTAIN THE SERVICE IT NEEDS.  THE ARGUMENT IGNORES THE
POWER OF CONGRESS TO PROTECT THE PERFORMANCE OF THE FUNCTIONS OF THE
NATIONAL GOVERNMENT AND TO PREVENT INTERFERENCE THEREWITH THROUGH ANY
ATTEMPTED STATE ACTION.  IN THOMSON V. PACIFIC RAILROAD, SUPRA, THE
COURT POINTEDLY REFERRED TO THE AUTHORITY OF CONGRESS TO PREVENT SUCH
AN INTERFERENCE THROUGH THE USE OF THE TAXING POWER OF THE STATE.  "IT
CANNOT," SAID THE COURT, "BE SO USED, INDEED, AS TO DEFEAT OR HINDER
THE OPERATIONS OF THE NATIONAL GOVERNMENT; BUT IT WILL BE SAFE TO
CONCLUDE, IN GENERAL, IN REFERENCE TO PERSONS AND STATE CORPORATIONS
EMPLOYED IN GOVERNMENT SERVICE, THAT WHEN CONGRESS HAS NOT INTERPOSED
TO PROTECT THEIR PROPERTY FROM STATE TAXATION, SUCH TAXATION IS NOT
OBNOXIOUS TO THAT OBJECTION."  SEE VAN ALLEN V. ASSESSORS, 3 WALL. 
573, 585; FIDELITY & DEPOSIT CO. V. PENNSYLVANIA, SUPRA. 

WE HOLD THAT THE WEST VIRGINIA TAX SO FAR AS IT IS LAID UPON THE
GROSS RECEIPTS OF RESPONDENT DERIVED FROM ITS ACTIVITIES WITHIN THE
BORDERS OF THE STATE DOES NOT INTERFERE IN ANY SUBSTANTIAL WAY WITH THE
PERFORMANCE OF FEDERAL FUNCTIONS AND IS A VALID EXACTION.  THE DECREE
OF THE DISTRICT COURT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  SEE ACT OF JULY 3, 1930, C. 847, 46 STAT. 928; H. DOC. NO. 190,
70TH CONG., 1ST SESS.; ACT OF AUGUST 30, 1935, C. 831, 49 STAT. 1035;
H. DOC. NO. 31, 73D CONG., 1ST SESS. 

FN2  PRIOR TO MAY 27, 1933, THE TAX WAS THREE-TENTHS OF ONE PER CENT,
AND THE ASSESSMENT ON RECEIPTS PRIOR TO THAT DATE WAS AT THAT RATE. 
TWO OF THE CONTRACTS OF RESPONDENT WERE MADE BEFORE THE RATES WERE
CHANGED. 

FN3  THAT PROVISION IS AS FOLLOWS: 

"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, AND TO EXERCISE LIKE AUTHORITY
OVER ALL PLACES PURCHASED BY THE CONSENT OF THE LEGISLATURE OF THE
STATE IN WHICH THE SAME SHALL BE, FOR THE ERECTION OF FORTS, MAGAZINES,
ARSENALS, DOCK-YARDS, AND OTHER NEEDFUL BUILDINGS." 

FN4  "SEC.  3.  ACQUISITION OF LANDS BY UNITED STATES; JURISDICTION. 
- THE CONSENT OF THIS STATE IS HEREBY GIVEN TO THE ACQUISITION BY THE
UNITED STATES, OR UNDER ITS AUTHORITY, BY PURCHASE, LEASE,
CONDEMNATION, OR OTHERWISE, OF ANY LAND ACQUIRED, OR TO BE ACQUIRED IN
THIS STATE BY THE UNITED STATES, FROM ANY INDIVIDUAL, BODY POLITIC OR
CORPORATE, FOR SITES FOR LIGHTHOUSES, BEACONS, SIGNAL STATIONS, POST
OFFICES, CUSTOMHOUSES, COURTHOUSES, ARSENALS, SOLDIERS' HOMES,
CEMETERIES, LOCKS, DAMS, ARMOR PLATE MANUFACTURING PLANTS, PROJECTILE
FACTORIES OR FACTORIES OF ANY KIND OR CHARACTER, OR ANY NEEDFUL
BUILDINGS OR STRUCTURES OR PROVING GROUNDS, OR WORKS FOR THE
IMPROVEMENT OF THE NAVIGATION OF ANY WATERCOURSE, OR WORK OF PUBLIC
IMPROVEMENT WHATEVER, OR FOR THE CONSERVATION OF THE FORESTS, OR FOR
ANY OTHER PURPOSE FOR WHICH THE SAME MAY BE NEEDED OR REQUIRED BY THE
GOVERNMENT OF THE UNITED STATES.  THE EVIDENCE OF TITLE TO SUCH LAND
SHALL BE RECORDED AS IN OTHER CASES. 

"ANY COUNTY, MAGISTERIAL DISTRICT OR MUNICIPALITY, WHETHER
INCORPORATED UNDER GENERAL LAW OR SPECIAL ACT OF THE LEGISLATURE, SHALL
HAVE POWER TO PAY FOR ANY SUCH TRACT OR PARCEL OF LAND AND PRESENT THE
SAME TO THE GOVERNMENT OF THE UNITED STATES FREE OF COST, FOR ANY OF
THE PURPOSES AFORESAID, AND TO ISSUE BONDS AND LEVY TAXES FOR THE
PURPOSE OF PAYING FOR THE SAME; AND, IN THE CASE OF A MUNICIPAL
CORPORATION, THE LAND SO PURCHASED AND PRESENTED MAY BE WITHIN THE
CORPORATE LIMITS OF SUCH MUNICIPALITY OR WITHIN FIVE MILES THEREOF:
PROVIDED, HOWEVER, THAT NO SUCH COUNTY, MAGISTERIAL DISTRICT OR
MUNICIPALITY SHALL, BY THE ISSUE AND SALE OF SUCH BONDS, CAUSE THE
AGGREGATE OF ITS DEBT TO EXCEED THE LIMIT FIXED BY THE CONSTITUTION OF
THIS STATE:  PROVIDED, FURTHER, THAT THE PROVISIONS OF THE CONSTITUTION
AND STATUTES OF THIS STATE, OR OF THE SPECIAL ACT CREATING ANY
MUNICIPALITY, RELATING TO SUBMITTING THE QUESTION OF THE ISSUING OF
BONDS AND ALL QUESTIONS CONNECTED WITH THE SAME TO A VOTE OF THE
PEOPLE, SHALL, IN ALL RESPECTS, BE OBSERVED AND COMPLIED WITH. 

"CONCURRENT JURISDICTION WITH THIS STATE IN AND OVER ANY LAND SO
ACQUIRED BY THE UNITED STATES SHALL BE, AND THE SAME IS HEREBY, CEDED
TO THE UNITED STATES FOR ALL PURPOSES; BUT THE JURISDICTION SO CEDED
SHALL CONTINUE NO LONGER THAN THE UNITED STATES SHALL BE THE OWNER OF
SUCH LANDS, AND IF THE PURPOSES OF ANY GRANT TO THE UNITED STATES SHALL
CEASE, OR THE UNITED STATES SHALL FOR FIVE CONSECUTIVE YEARS FAIL TO
USE ANY SUCH LAND FOR THE PURPOSES OF THE GRANT, THE JURISDICTION
HEREBY CEDED OVER THE SAME SHALL CEASE AND DETERMINE, AND THE RIGHT AND
TITLE THERETO SHALL REINVEST IN THIS STATE.  THE JURISDICTION CEDED
SHALL NOT VEST UNTIL THE UNITED STATES SHALL ACQUIRE TITLE OF RECORD TO
SUCH LAND.  JURISDICTION HERETOFORE CEDED TO THE UNITED STATES OVER ANY
LAND WITHIN THIS STATE BY ANY PREVIOUS ACTS OF THE LEGISLATURE SHALL
CONTINUE ACCORDING TO THE TERMS OF THE RESPECTIVE CESSIONS." 

FN5  "SEC.  4.  EXECUTION OF PROCESS AND OTHER JURISDICTION AS TO
LAND ACQUIRED BY UNITED STATES.   - THE STATE OF WEST VIRGINIA RESERVES
THE RIGHT TO EXECUTE PROCESS, CIVIL OR CRIMINAL, WITHIN THE LIMITS OF
ANY LOT OR PARCEL OF LAND HERETOFORE OR HEREAFTER ACQUIRED BY THE
UNITED STATES AS AFORESAID, AND SUCH OTHER JURISDICTION AND AUTHORITY
OVER THE SAME AS IS NOT INCONSISTENT WITH THE JURISDICTION CEDED TO THE
UNITED STATES BY VIRTUE OF SUCH ACQUISITION." 

FN6  SEE NOTE 5. 

MR. JUSTICE ROBERTS, DISSENTING. 

I REGRET THAT I AM UNABLE TO CONCUR IN THE COURT'S OPINION.  I SHOULD
NOT SET FORTH MY VIEWS IN DETAIL WERE I NOT CONVINCED THE DECISION RUNS
COUNTER TO THE SETTLED RULE THAT A STATE MAY NOT, BY TAXATION, BURDEN
OR IMPEDE THE UNITED STATES IN THE EXERCISE OF ITS DELEGATED POWERS. 
THE JUDGMENT SEEMS TO ME TO OVERRULE, SUB SILENTIO, A CENTURY OF
PRECEDENTS, AND TO LEAVE THE APPLICATION OF THE RULE UNCERTAIN AND
UNPREDICTABLE. 

THE DOCTRINE WHICH FORBIDS A STATE TO INTERFERE WITH THE EXERCISE OF
FEDERAL POWERS DOES NOT HAVE ITS ORIGIN IN THE COMMON LAW EXEMPTION OF
THE SOVEREIGN FROM REGULATION OR TAXATION.  IT SPRINGS FROM THE
NECESSITY OF MAINTAINING OUR DUAL SYSTEM OF GOVERNMENT."  FN1  THE
ATTEMPT TO USE IT (THE POWER OF TAXATION) ON THE MEANS EMPLOYED BY THE
GOVERNMENT OF THE UNION, IN PURSUANCE OF THE CONSTITUTION, IS ITSELF AN
ABUSE, BECAUSE IT IS THE USURPATION OF A POWER WHICH THE PEOPLE OF A
SINGLE STATE CANNOT GIVE.  WE FIND, THEN, ON JUST THEORY, A TOTAL
FAILURE OF THIS ORIGINAL RIGHT (OF THE STATES) TO TAX THE MEANS
EMPLOYED BY THE GOVERNMENT OF THE UNION, FOR THE EXECUTION OF ITS
POWERS.""  FN2  THE IMMUNITY IS DERIVED FROM THE CONSTITUTION IN THE
SAME SENSE AND UPON THE SAME PRINCIPLE THAT IT WOULD BE IF EXPRESSED IN
SO MANY WORDS."  FN3 

THIS IMMUNITY WAS DEFINED BY CHIEF JUSTICE MARSHALL IN M'CULLOCH V.
MARYLAND, 4 WHEAT.  316, 436: 

"...  THE STATES HAVE NO POWER, BY TAXATION OR OTHERWISE, TO RETARD,
IMPEDE, BURDEN, OR IN ANY MANNER CONTROL, THE OPERATIONS OF THE
CONSTITUTIONAL LAWS ENACTED BY CONGRESS TO CARRY INTO EXECUTION THE
POWERS VESTED IN THE GENERAL GOVERNMENT." 

IN ITS APPLICATION THE PRINCIPLE FORBIDS TAXATION BY A STATE OF
PROPERTY OF THE FEDERAL GOVERNMENT,  FN4  OR OF THE OFFICE OR SALARY OF
ANY OF ITS OFFICERS.  FN5 

I AGREE THAT THE GROSS RECEIPTS TAX LAID BY WEST VIRGINIA UPON THE
APPELLEE'S TRANSACTIONS WITH THE UNITED STATES IS NOT UPON THE
GOVERNMENT AS SUCH, UPON ITS PROPERTY OR UPON ITS OFFICERS. 

THE GOVERNMENT NEED NOT PERFORM ALL ITS FUNCTIONS BY THE USE OF ITS
PROPERTY AND THE ACTIVITY OF ITS OFFICERS, BUT MAY ESTABLISH AGENCIES
TO THESE ENDS.  SUCH AN AGENCY, CREATED NOT FOR PRIVATE GAIN BUT WHOLLY
DEVOTED TO GOVERNMENTAL PURPOSES AND WHOLLY OWNED BY THE UNITED STATES,
IS AS FREE FROM STATE TAXATION ON ITS PROPERTY AND ITS ACTIVITIES AS
THE GOVERNMENT ITSELF; AND THE EXEMPTION EXTENDS TO THE SALARIES OF ITS
OFFICERS.  FN6  IN THE EXERTION OF THE POWERS CONFERRED UPON IT BY THE
CONSTITUTION, THE UNITED STATES MAY, IN ITS DISCRETION, ERECT
CORPORATIONS FOR PRIVATE GAIN AND EMPLOY THEM AS ITS
INSTRUMENTALITIES.  FN7  NO TAX CAN BE LAID UPON THEIR FRANCHISES OR
OPERATIONS,  FN8  BUT THEIR LOCAL PROPERTY  FN9  IS SUBJECT TO NON
DISCRIMINATING STATE TAXATION.  IN CONTRAST, THE BESTOWAL OF BENEFITS,
RIGHTS, PRIVILEGES, OR IMMUNITIES OR THE IMPOSITION OF DUTIES BY
FEDERAL LAW UPON A NATURAL PERSON OR A CORPORATION DOES NOT CONVERT HIM
OR IT INTO A FEDERAL AGENCY EXEMPT FROM UNIFORM STATE EXCISE OR
PROPERTY TAXES.  FN10  WHERE THE UNITED STATES, BY CONTRACT,
CONSTITUTES A PERSON OR CORPORATION ITS AGENT TO FULFIL A GOVERNMENTAL
OBLIGATION, A STATE TAX UPON SUCH AN AGENT IS FORBIDDEN IF IT FALLS
UPON THE AVAILS OF THE OPERATION IN WHICH THE GOVERNMENT HAS AN
INTEREST, OR IS AN EXCISE OR PRIVILEGE TAX UPON THE AGENT'S OPERATIONS;
FN11  BUT A GENERAL AND UNIFORM STATE PROPERTY TAX WHICH FALLS ONLY
UPON THE AGENT'S PROPERTY USED IN THE PERFORMANCE OF THE CONTRACT IS
VALID.  FN12  THE OPINION OF THE COURT ADVERTS TO THESE DISTINCTIONS,
BUT, SINCE ADMITTEDLY THE APPELLEE IS NOT AN AGENCY OR INSTRUMENTALITY
OF THE UNITED STATES, A DISCUSSION OF TAXES LAID UPON THE OPERATIONS AS
CONTRASTED WITH THOSE IMPOSED UPON THE PROPERTY OF SUCH AN AGENCY OR
INSTRUMENTALITY IS BESIDE THE POINT UPON WHICH THE CASE TURNS.  FN13 

I AGREE THAT THE CHALLENGED TAX IS NOT, IN TERMS, LAID UPON THE
CONTRACT OF THE GOVERNMENT, BUT I AM OF OPINION THAT IT DIRECTLY
BURDENS AND IMPEDES THE OPERATIONS OF THE UNITED STATES WITHIN THE
REASON AND SCOPE OF THE PRINCIPLE OF IMMUNITY AND ACCORDING TO THE
APPLICATION OF THAT PRINCIPLE IN NUMEROUS DECISIONS OF THE COURT.  IF
THIS BE SO, THE FACTS THAT THE EXACTION IS NOT IN TERMS UPON THE
CONTRACT WITH THE GOVERNMENT, THAT THE APPELLEE IS AN INDEPENDENT
CONTRACTOR, THAT THE TAX IS NON-DISCRIMINATORY, OR THAT IT IS NOT
EXCESSIVE IN AMOUNT CANNOT SERVE TO EXCULPATE THE STATUTE FROM THE
CHARGE THAT IT TRANSGRESSES THE RULE.  THESE CONSIDERATIONS, AS
REPEATEDLY HELD, ARE IRRELEVANT WHERE THE TAX FALLS DIRECTLY,
IMMEDIATELY, AND PALPABLY UPON AN OPERATION OF THE FEDERAL GOVERNMENT
OR A MEANS CHOSEN FOR THE EXERCISE OF ITS POWERS.  MANY ILLUSTRATIONS
ARE AVAILABLE OF EXACTIONS WHICH PLAINLY BURDEN AND IMPEDE IN SOME
DEGREE THE LAWFUL OPERATIONS OF THE UNITED STATES.  AS THE OPINION OF
THE COURT INDICATES, A TAX IN TERMS LAID UPON THE CONTRACT WOULD DO SO,
- SUCH AS AN EXCISE FOR THE PRIVILEGE OF MAKING THE CONTRACT OR
PERFORMING IT,  FN14  A STAMP TAX UPON THE DOCUMENTS EVIDENCING THE
CONTRACT, OR A REQUIREMENT THAT THE CONTRACT BE RECORDED AND A TAX BE
PAID UPON ITS RECORDATION.  FN15 

THE COURT HAS, MOREOVER, REPEATEDLY HELD A TAX NOMINALLY UPON ONE WHO
CONTRACTS WITH THE GOVERNMENT WAS IN EFFECT AND IN FACT IMPOSED UPON
THE OPERATIONS OF THE LATTER.  THUS AN EXCISE UPON A TELEGRAPH COMPANY
WHICH, UNDER CONTRACT WITH THE UNITED STATES, TRANSMITS GOVERNMENT
MESSAGES, WHETHER THE TAX BE AT A GIVEN SUM PER MESSAGE  FN16  OR IN
THE FORM OF A LICENSE TAX UPON ALL BUSINESS, PRIVATE AND GOVERNMENTAL,
FN17  IS PROHIBITED BECAUSE IT IMPOSES A BURDEN UPON THE OPERATIONS OF
THE UNITED STATES.  THE CASES SO HOLDING ARE SOUGHT TO BE DISTINGUISHED
BY THE CIRCUMSTANCE THAT THE TELEGRAPH COMPANIES CARRYING THE MESSAGES
OF THE UNITED STATES WERE BY FEDERAL STATUTE GIVEN THE PRIVILEGE OF
USING THE POST ROADS; AND IT IS SAID THAT THIS IN SOME WAY GAVE THEM A
PECULIAR STATUS WHICH RENDERED THEIR GROSS RECEIPTS UNTAXABLE. BUT THAT
WAS NOT THE BASIS OF DECISION.  THE GROUND OF IMMUNITY WAS THAT THE TAX
WAS IN EFFECT ON THE GOVERNMENT'S TRANSACTIONS IN THE EXERTION OF ITS
LAWFUL POWERS.  THUS IN TELEGRAPH CO. V. TEXAS, 105 U.S. AT P. 465, IT
WAS SAID "THE TAX IS THE SAME ON EVERY MESSAGE SENT, AND BECAUSE IT IS
SENT,  ... CLEARLY IF A FIXED TAX FOR EVERY TWO THOUSAND POUNDS OF
FREIGHT CARRIED IS A TAX ON THE FREIGHT, OR FOR EVERY MEASURED TON OF A
VESSEL A TAX ON TONNAGE, OR FOR EVERY PASSENGER CARRIED A TAX ON THE
PASSENGER, OR FOR THE SALE OF GOODS A TAX ON THE GOODS, THIS MUST BE A
TAX ON THE MESSAGES....  AS TO THE GOVERNMENT MESSAGES, IT IS A TAX BY
THE STATE ON THE MEANS EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES
TO EXECUTE ITS CONSTITUTIONAL POWERS, AND, THEREFORE, VOID.  IT WAS SO
DECIDED IN MCCULLOCH V. MARYLAND, (4 WHEAT.  316) AND HAS NEVER BEEN
DOUBTED SINCE." 

THAT THE PRIVILEGES GRANTED TELEGRAPH COMPANIES BY FEDERAL LAW, HAD
NO BEARING UPON THE VALIDITY OF THE TAX IS SHOWN BY WESTERN UNION
TELEGRAPH CO. V. MASSACHUSETTS, 125 U.S. 530 AND MASSACHUSETTS V.
WESTERN UNION TELEGRAPH CO., 141 U.S. 40, IN WHICH STATE TAXES ON THE
PROPERTY AND FRANCHISES OF COMPANIES, OPERATING UNDER THE SAME STATUTE
AS THE TELEGRAPH COMPANY IN THE TEXAS CASE WERE SUSTAINED BECAUSE NOT
ON THE TRANSACTIONS BETWEEN THE CARRIER AND THE UNITED STATES. 

STOCK ISSUED BY THE UNITED STATES EVIDENCING INDEBTEDNESS TO THE
HOLDER CANNOT BE TAXED AD VALOREM BY A STATE.  FN18  A TAX UPON THE
ASSETS OF A CORPORATION IS BAD IF OBLIGATIONS OF THE UNITED STATES ARE
INCLUDED IN THE ASSESSMENT.  FN19  A GROSS INCOME TAX IS INVALID TO THE
EXTENT THAT IT IS LAID ON INCOME FROM FEDERAL SECURITIES.  FN20  THE
REASON IS THAT "THE TAX  ...  IS A TAX UPON THE CONTRACT SUBSISTING
BETWEEN THE GOVERNMENT AND THE INDIVIDUAL.  IT BEARS DIRECTLY UPON THAT
CONTRACT, WHILE SUBSISTING AND IN FULL FORCE.  THE POWER OPERATES UPON
THE CONTRACT THE INSTANT IT IS FRAMED, AND MUST IMPLY A RIGHT TO AFFECT
THAT CONTRACT."  THE GOVERNMENT'S OBLIGATION IS FOR THE PAYMENT BOTH OF
PRINCIPAL AND INTEREST, AND AN EXACTION WHICH BEARS UPON EITHER OF
THESE FEATURES OF THE OBLIGATION IS PROHIBITED. 

CERTIFICATES OF INDEBTEDNESS ISSUED BY THE UNITED STATES, PAYABLE AT
A FUTURE DATE, WITH INTEREST, ISSUED TO CREDITORS FOR SUPPLIES
FURNISHED BY THEM TO THE NATION, CANNOT BE TAXED BY A STATE.  THEY
DIFFER FROM THE GROSS RECEIPTS HERE TAXED ONLY IN THE RESPECT THAT THEY
WERE ISSUED TO SECURE PAYMENT OF PAST-DUE CONTRACTUAL OBLIGATIONS,
WHEREAS THE CASH PAID THE APPELLEE WAS IN SOLUTION OF A PRESENT
OBLIGATION OF LIKE NATURE.  OF THE TAXABILITY OF THESE CERTIFICATES IT
WAS SAID:  FN21 

"...  BUT WE FAIL TO PERCEIVE  ...  THAT SUCH CERTIFICATES, ISSUED AS
A MEANS OF EXECUTING CONSTITUTIONAL POWERS OF THE GOVERNMENT OTHER THAN
OF BORROWING MONEY, ARE NOT AS MUCH BEYOND CONTROL AND LIMITATION BY
THE STATES THROUGH TAXATION, AS BONDS OR OTHER OBLIGATIONS ISSUED FOR
LOANS OF MONEY." 

MANY SORTS OF IMPOSTS, HOWEVER, WHICH BEAR MERELY UPON THE OBLIGEE OF
A GOVERNMENT CONTRACT FOR THE EXERCISE OF A PRIVILEGE HAVING NO
RELATION TO THE CONTRACTUAL NEXUS BETWEEN HIM AND THE GOVERNMENT HAVE
BEEN SUSTAINED.  SO, A FRANCHISE OR PRIVILEGE TAX MEASURED BY ASSETS OR
BY INCOME IS NOT RENDERED VOID BY THE CIRCUMSTANCE THAT THE TAXPAYER'S
ASSETS OR INCOME INCLUDE FEDERAL SECURITIES OR INTEREST THEREON.  FN22
AND A LAW WHICH IMPOSES AN EXCISE UPON THE PRIVILEGE OF TRANSMISSION OF
PROPERTY AT DEATH MAY INCLUDE FEDERAL SECURITIES IN THE ESTATE BY WHICH
THE TAX IS MEASURED.  FN23  UPON THE LIKE REASONING A TAX UPON MONEYS
AND CREDITS IN THE ASSESSMENT OF WHICH UNCOLLECTED GOVERNMENT CHECKS
ARE INCLUDED IS VALID.  FN24 

THERE CAN BE NO DIFFERENCE IN REASON, OR IN PRACTICAL EFFECT, BETWEEN
TAXATION OF GOVERNMENT CONTRACTS TO REPAY BORROWED FUNDS OR WRITTEN
PROMISES TO PAY FOR GOODS PREVIOUSLY FURNISHED AND A CONTRACT TO PAY
FOR GOODS AND SERVICES AS FURNISHED, OR ANY OTHER FORM OF CONTRACT
WHEREBY THE GOVERNMENT EXERCISES ITS GRANTED POWERS.  THE FEDERAL POWER
TO CONTRACT FOR SUPPLIES OR SERVICES IS AS NECESSARY AND AS FUNDAMENTAL
AS THE POWER TO BORROW MONEY.  THUS IT HAS BEEN SAID, SPEAKING OF A TAX
UPON GOVERNMENT OBLIGATIONS: FN25 

"IF THE STATES AND CORPORATIONS THROUGHOUT THE UNION, POSSESS THE
POWER TO TAX A CONTRACT FOR THE LOAN OF MONEY, WHAT SHALL ARREST THIS
PRINCIPLE IN ITS APPLICATION TO EVERY OTHER CONTRACT?  WHAT MEASURE CAN
GOVERNMENT ADOPT WHICH WILL NOT BE EXPOSED TO ITS INFLUENCE?" 

IF THE GOVERNMENT, AS GUARDIAN OF AN INCOMPETENT INDIAN, LEASES LAND
TO A MINING COMPANY ON A ROYALTY CONSISTING OF A PERCENTAGE OF THE
GROSS PROCEEDS DERIVED FROM THE SALE OF ORES MINED, A STATE AD VALOREM
TAX ASSESSED TO THE LESSEE ON THE ORES MINED AND IN STORAGE UPON THE
LEASED LAND BEFORE ANY SALE OR SEGREGATION OF THE EQUITABLE INTERESTS
OF THE GOVERNMENT AS GUARDIAN, IS VOID AS BURDENING AND IMPEDING AN
OPERATION OF THE GOVERNMENT.  FN26  A SALES TAX ON COMMODITIES SOLD TO
THE GOVERNMENT, THOUGH LAID UPON THE SELLER AT A GIVEN RATE PER UNIT
SOLD, IS ALSO BAD AS DIRECTLY BURDENING THE GOVERNMENT'S TRANSACTIONS. 
FN27  A TAX ON STORAGE OR WITHDRAWAL FROM STORAGE ESSENTIAL TO THE SALE
OF A COMMODITY CONTRACTED TO BE DELIVERED TO THE UNITED STATES IS IN
THE SAME CLASS AS A TAX ON SALES TO THE GOVERNMENT.  FN28  ON THE OTHER
HAND, A SALES TAX UPON ARTICLES PURCHASED BY A GOVERNMENT CONTRACTOR,
FN29  OR A NET INCOME TAX LAID UPON HIS INCOME, IS VALID.  FN30  THE
REASON IS THAT EXACTIONS OF THE LATTER SORT DO NOT IMPINGE UPON OR
DIRECTLY AFFECT THE TRANSACTION BETWEEN HIM AND THE GOVERNMENT; DO NOT
AFFECT THE GOVERNMENT'S CHOICE OF MEANS FOR EXECUTING ITS POWERS. 

WHILE A GROSS INCOME TAX UPON RECEIPTS DERIVED FROM A GOVERNMENT
CONTRACT WOULD IN ITSELF BE BAD, IF THE EXACTION IS IN LIEU OF ALL
PROPERTY TAXES AND INTENDED AS A PROPERTY TAX, MEASURED BY RECEIPTS OF
THE PROPERTY, IT IS VALID.  FN31 

OVER A CENTURY AGO THE COURT SAID:  FN32 

"CAN A CONTRACTOR FOR SUPPLYING A MILITARY POST WITH PROVISIONS, BE
RESTRAINED FROM MAKING PURCHASES WITHIN ANY STATE, OR FROM TRANSPORTING
THE PROVISIONS TO THE PLACE AT WHICH THE TROOPS WERE STATIONED?  OR
COULD HE BE FINED OR TAXED FOR DOING SO?  WE HAVE NOT YET HEARD THESE
QUESTIONS ANSWERED IN THE AFFIRMATIVE.  IT IS TRUE, THAT THE PROPERTY
OF THE CONTRACTOR MAY BE TAXED, AS THE PROPERTY OF OTHER CITIZENS;...
BUT WE DO NOT ADMIT THAT THE ACT OF PURCHASING, OR OF CONVEYING THE
ARTICLES PURCHASED, CAN BE UNDER STATE CONTROL." 

THERE IS NO DISTINCTION BETWEEN A SALES TAX ON GOODS SOLD TO THE
FEDERAL GOVERNMENT AND A GROSS RECEIPTS TAX UPON THE FURNISHING OF
GOODS AND SERVICES UNDER A CONTRACT WITH THE GOVERNMENT.  AS WAS SAID
IN PANHANDLE OIL CO. V. MISSISSIPPI EX REL. KNOX, 277 U.S. 218, 221: 

"THE RIGHT OF THE UNITED STATES TO MAKE SUCH PURCHASES IS DERIVED
FROM THE CONSTITUTION.  THE PETITIONER'S RIGHT TO MAKE SALES TO THE
UNITED STATES WAS NOT GIVEN BY THE STATE AND DOES NOT DEPEND ON STATE
LAWS; IT RESULTS FROM THE AUTHORITY OF THE NATIONAL GOVERNMENT UNDER
THE CONSTITUTION TO CHOOSE ITS OWN MEANS AND SOURCES OF SUPPLY.  WHILE
MISSISSIPPI MAY IMPOSE CHARGES UPON PETITIONER FOR THE PRIVILEGE OF
CARRYING ON TRADE THAT IS SUBJECT TO THE POWER OF THE STATE, IT MAY NOT
LAY ANY TAX UPON TRANSACTIONS BY WHICH THE UNITED STATES SECURES THE
THINGS DESIRED FOR ITS GOVERNMENTAL PURPOSES." 

AS IN THE PANHANDLE CASE, SO IN THE PRESENT, THE RECEIPT OF THE THING
CONTRACTED FOR CONSTITUTES THE TRANSACTION BY WHICH THE TAX IS MEASURED
AND ON WHICH THE BURDEN RESTS.  WE MAY THUS PARAPHRASE WHAT WAS THERE
SAID:  TO USE THE VALUE AND AMOUNT OF THE GOODS AND SERVICES FURNISHED
TO THE UNITED STATES AS A MEASURE OF THE TAX IS IN SUBSTANCE AND EFFECT
TO TAX THE TRANSACTION ITSELF.  THE AMOUNT OF THE TAX RISES AND FALLS
IN DIRECT RATIO TO THE CONTRACT VALUE OF THE GOODS AND SERVICES
RENDERED TO THE GOVERNMENT.  THIS IS TO TAX THE SALE; AND THAT IS TO
TAX THE UNITED STATES. 

THE SOLICITOR GENERAL AS AMICUS CURIAE PROPOSES A SINGLE TEST OF THE
CONSTITUTIONALITY OF A STATE TAX UPON THE OPERATIONS OF THE UNITED
STATES, OR THE MEANS CHOSEN FOR THE EXECUTION OF ITS POWERS.  THAT TEST
IS WHETHER THE TAXING STATUTE DISCRIMINATES AGAINST THE GOVERNMENT AND
IN FAVOR OF OTHER TAXPAYERS.  HE FRANKLY ADMITS THAT IF THE PROPOSED
CRITERION BE ADOPTED WE MUST OVERRULE INDIAN MOTOCYCLE CO. V. UNITED
STATES, 283 U.S. 570; PANHANDLE OIL CO. V. MISSISSIPPI EX REL. KNOX,
SUPRA; AND GRAVES V. TEXAS COMPANY, 298 U.S. 393.  HE PROFESSES
HIMSELF, AS I AM, UNABLE TO DISTINGUISH A SALES TAX OR A TAX UPON
STORAGE PRELIMINARY TO SALE TO THE UNITED STATES FROM A GROSS RECEIPTS
TAX UPON GOODS AND SERVICES FURNISHED THE GOVERNMENT.  IN A BRIEF FILED
AS AMICUS CURIAE IN GRAVES V. TEXAS COMPANY, SUPRA, HE URGED THE COURT
TO HOLD SUCH A TAX IMPOSED ON GASOLINE UNDER CONTRACT TO THE UNITED
STATES INVALID AS AN UNCONSTITUTIONAL IMPEDIMENT AND BURDEN UPON THE
OPERATIONS OF THE GOVERNMENT.  FN33  IT IS SAID THAT THESE CASES HAVE
BEEN DISTINGUISHED.  BUT IN THE CASES DISTINGUISHED FROM THEM THE TAX
WAS FOUND TO BE ONE ON THE PROPERTY OF A CONTRACTOR WITH THE UNITED
STATES, OR ON HIS NET INCOME, NOT ON THE GROSS RECEIPTS OF HIS CONTRACT
WITH THE GOVERNMENT.  TO DISTINGUISH THEM FROM THE PRESENT CASE IS NOT
TO RELY UPON ANY PRINCIPLE BUT UPON THE MERE NAME OR LABEL GIVEN TO A
TAX.  SUCH DISTINCTIONS ONLY SERVE TO CONFUSE. 

I DO NOT THINK THE SOLICITOR GENERAL IN BRIEF OR ARGUMENT ANSWERED
THE QUESTION PROPOUNDED BY THE COURT IN THE PRESENT CASE:  WHETHER THE
TAX IS INVALID AS LAYING A BURDEN UPON THE OPERATIONS OF THE FEDERAL
GOVERNMENT.  HE RESPONDS THAT THE TAX IS VALID IN SPITE OF THE FACT
THAT IT LAYS SUCH A BURDEN.  THUS HE STATES:  "WE HAVE INDICATED THAT A
TAX UPON THE CONTRACTOR, THE SOLE RESULT OF WHICH IS TO INCREASE THE
COST TO THE SOVEREIGN BY THE AMOUNT OF THE NORMAL TAX BURDEN, PRESENTS
NO INTERFERENCE WITH ITS OPERATIONS."  AGAIN HE SAYS THAT THE
IMPOSITION OF THE TAX IN QUESTION "IS IN NO SENSE A THREAT TO THE
CAPACITY OF THE GOVERNMENT TO PERFORM ITS FUNCTIONS." 

THUS IT APPEARS THAT, IN HIS VIEW, A NON-DISCRIMINATORY STATE TAX IS
TO BE JUDGED NOT BY THE "BURDEN" IT IMPOSES, BUT BY THE EXTENT OF ITS
"INTERFERENCE" WITH THE FUNCTIONING OF GOVERNMENT.  IF THIS BE THE
TEST, NO TAX, HOWEVER GREAT, CAN PREVENT SUCH FUNCTIONING, SO LONG AS
THE UNITED STATES' TAXING AND BORROWING POWERS REMAIN ADEQUATE TO MEET
THE ORDINARY EXPENSES OF ITS OPERATIONS AND THE ADDED COST OF STATE
TAXES THEREON.  THE ADOPTION OF ANY SUCH THEORY WOULD REQUIRE THE
OVERRULING NOT ONLY OF THE THREE DECISIONS THE SOLICITOR GENERAL
SINGLES OUT FOR DELETION, BUT LITERALLY SCORES OF OTHERS, BEGINNING
WITH M'CULLOCH V. MARYLAND AND ENDING WITH GRAVES V. TEXAS COMPANY, 298
U.S. 393, DECIDED AT THE 1935 TERM IN ACCORDANCE WITH THE VIEWS THEN
EARNESTLY PRESSED UPON US BY THE SOLICITOR GENERAL. 

IT IS NOT CLEAR TO WHAT EXTENT THE COURT'S OPINION ADOPTS THE
DOCTRINE ADVOCATED BY THE GOVERNMENT.  IT IS SAID MERELY THAT THE
APPELLEE IS AN INDEPENDENT CONTRACTOR, THAT THE TAX IS NON
DISCRIMINATORY AND IS NOT LAID UPON THE CONTRACT OF THE GOVERNMENT; AND
IT IS SUGGESTED THAT IF IN THE VIEW OF CONGRESS THE BURDEN OF SUCH A
TAX BECOMES TOO HEAVY, CONGRESS HAS THE MEANS OF REDRESS.  WHETHER ONE
OR ALL OF THESE FACTORS IS REQUISITE TO JUSTIFY THE EXACTION WE ARE NOT
TOLD. 

THE CASES ON WHICH THE OPINION ESPECIALLY RELIES DO NOT JUSTIFY
SUSTAINING THIS TAX.  METCALF & EDDY V. MITCHELL, 269 U.S. 514, THROWS
NO LIGHT UPON THE PROBLEM PRESENTED.  A CONTRACTOR EMPLOYED TO ADVISE A
STATE AND ITS MUNICIPAL SUBDIVISIONS SOUGHT EXEMPTION FROM A FEDERAL
TAX UPON NET INCOME.  THE LAW IMPOSING THE TAX DID NOT DISCRIMINATE
AGAINST THE RECEIPTS FROM THE CONTRACT BUT TREATED THEM AS PART OF THE
GROSS INCOME UPON WHICH THE TAXABLE NET INCOME WAS TO BE CALCULATED. 
IN ACCORDANCE WITH ALL OF THIS COURT'S APPLICABLE DECISIONS THE TAX WAS
HELD NOT TO BE UPON THE STATE OR ITS CONTRACT WITH THE TAXPAYER, NOT
UPON AN INSTRUMENTALITY OR MEANS CHOSEN BY THE STATE FOR EXECUTING ITS
POWERS, NOT DIRECTLY UPON THE AMOUNT OF THE TAXPAYER'S COMPENSATION
RECEIVED FROM THE STATE.  THE EXACTION WAS NOT, AS HERE, OF A
PROPORTION OF EACH DOLLAR PAID BY THE GOVERNMENT.  IT WAS UPON NET
INCOME REMAINING AFTER ALLOWABLE DEDUCTIONS FROM GROSS. 

THE DECISION IN FIDELITY & DEPOSIT CO. V. PENNSYLVANIA, 240 U.S. 319,
RELIED ON AS SUSTAINING THE INSTANT EXACTION, NEITHER RULES NOR AIDS IN
THE DECISION OF THE PRESENT CAUSE.  THERE A FOREIGN SURETY COMPANY WAS
REQUIRED BY LAW TO PAY AN ANNUAL FEE EQUAL TO TWO PER CENT. OF ITS
GROSS PREMIUMS, IN ORDER TO BE ADMITTED TO DO BUSINESS IN
PENNSYLVANIA.  UNDER A FEDERAL STATUTE SURETY COMPANIES DESIRING TO
EXECUTE BONDS RUNNING TO THE UNITED STATES WERE REQUIRED TO OBTAIN
WRITTEN AUTHORITY FROM THE ATTORNEY GENERAL SO TO DO.  THE FIDELITY
COMPANY OBTAINED SUCH AUTHORITY AND BECAME SURETY IN PENNSYLVANIA ON A
NUMBER OF BONDS INSURING THE FAITHFUL PERFORMANCE OF OFFICIAL DUTIES BY
FEDERAL EMPLOYES.  IT CHALLENGED SO MUCH OF THE STATE TAX AS WAS LAID
UPON THE PREMIUMS RECEIVED FOR WRITING THESE BONDS.  THE CHALLENGE WAS
NOT SUSTAINED.  THE CLAIM THAT THE COMPANY, BY OBTAINING LEAVE TO
EXECUTE BONDS RUNNING TO THE UNITED STATES, HAD BECOME A FEDERAL
INSTRUMENTALITY, WAS PROPERLY OVERRULED.  FN34  BUT IT IS SAID THAT, IN
SUSTAINING THE TAX, THE COURT HELD THAT AN EXACTION ON THE GROSS
RECEIPTS OF GOVERNMENT CONTRACTS IS VALID.  A MOMENT'S REFLECTION WILL
SHOW THAT THIS IS INCORRECT.  THE PREMIUMS RECEIVED BY THE SURETY
COMPANY WERE RECEIVED FROM ITS CLIENTS - THOSE FOR WHOM IT WROTE THE
BONDS.  IT RECEIVED NO COMPENSATION FROM THE UNITED STATES AND ITS
TRANSACTIONS IN ESSENCE WERE WITH CITIZENS OF THE STATE OF PENNSYLVANIA
AS SUCH.  THEY DID NOT DIFFER FROM TRANSACTIONS WITH FEDERAL OFFICERS
AND EMPLOYES WHEREBY THE LATTER PROCURED ANY OTHER SORT OF GOODS OR
SERVICE.  FN35  OF COURSE, THE MERE FACT THAT A CONTRACTUAL RELATION -
THAT OF SURETYSHIP - WAS CREATED BETWEEN THE FIDELITY COMPANY AND THE
UNITED STATES, WAS NOT IN AND OF ITSELF SUFFICIENT TO RELIEVE THE
COMPANY OF THE BURDEN OF PAYING A LOCAL TAX FOR THE PRIVILEGE OF DOING
BUSINESS WITH ITS CUSTOMERS.    ALWARD V. JOHNSON, 282 U.S. 509, IS
CITED AS AN INSTANCE WHERE A GROSS RECEIPTS TAX INCIDENT UPON THE
CONSIDERATION PAID THE CONTRACTOR BY THE UNITED STATES WAS SUSTAINED. 
EXAMINATION OF THE CASE DEMONSTRATES THAT THE CONTRARY IS TRUE.  ALWARD
WAS ENGAGED IN OPERATING AN AUTOMOTIVE STAGE LINE BETWEEN POINTS IN
CALIFORNIA.  IN HIS BUSINESS HE EMPLOYED AUTOMOTIVE PROPERTY AND USED
THE STATE HIGHWAYS.  IN CLASSIFYING PROPERTY FOR TAXATION THE STATE
SEPARATELY CLASSIFIED PROPERTY OF PERSONS CARRYING ON SUCH A BUSINESS
AS HIS AND LAID A TAX ON THIS CLASS OF PROPERTY, IN LIEU OF ALL OTHER
TAXES, AT THE RATE OF FOUR AND ONE-HALF PER CENT. OF GROSS RECEIPTS. 
OTHER CLASSES OF PROPERTY WERE TAXED AT A PERCENTAGE OF VALUE.  AS THE
MAJOR PORTION OF ALWARD'S GROSS RECEIPTS AROSE FROM A CONTRACT FOR
CARRYING UNITED STATES MAILS HE INSISTED THAT THE TAX WAS INVALID
BECAUSE, BY VIRTUE OF HIS CONTRACT WITH THE GOVERNMENT, HE BECAME A
FEDERAL AGENCY IMMUNE FROM TAXATION UPON HIS GROSS RECEIPTS. 

THIS COURT FOUND THAT THE SUPREME COURT OF CALIFORNIA HAD DECLARED
THE TAX ONE UPON PROPERTY IN CASES HAVING NO RELATION TO ITS INCIDENCE
UPON FEDERAL INSTRUMENTALITIES OR MEANS.  IT FURTHER FOUND THAT THE
CHALLENGED CLASSIFICATION FOR TAXATION OF AUTOMOTIVE PROPERTY USED IN A
BUSINESS TRANSACTED ON THE PUBLIC ROADS WAS NOT ARBITRARY OR
UNREASONABLE.  THE CASE WAS LIKENED TO THOSE ARISING UNDER THE COMMERCE
CLAUSE IN WHICH THE INTRASTATE PROPERTY OF AN INTERSTATE CARRIER WAS
EITHER DIRECTLY TAXED OR WAS TAXED BY USE OF A PERCENTAGE OF GROSS
RECEIPTS IN LIEU OF ALL OTHER TAXES, INCLUDING PROPERTY TAXES, IN ORDER
TO REACH A FAIR MEASURE OF THE TAXABLE VALUE OF THE CARRIER'S
INTRASTATE PROPERTY.  PULLMAN CO. V. RICHARDSON, 261 U.S. 330; HOPKINS
V. SOUTHERN CALIFORNIA TEL. CO., 275 U.S. 393.  IT WAS POINTED OUT THAT
THE TAX WAS NOT ON GROSS RECEIPTS AS SUCH AND DID NOT BEAR UPON THE
CONTRACT BETWEEN THE TAXPAYER AND THE GOVERNMENT.  IN THE INSTANT CASE
THE TAX IS ADMITTEDLY AN EXCISE FOR REVENUE IMPOSED IN ADDITION TO
PROPERTY TAXES AND FOREIGN CORPORATION FEES PAID BY THE APPELLEE. 

IT MAY BE CONSIDERED,  - THOUGH I DO NOT THINK WITH REASON,  - THAT
THE CONCLUSION OF THE COURT THAT THE TAX WAS A PROPERTY TAX AND NOT A
TAX UPON GROSS RECEIPTS AS SUCH WAS ERRONEOUS BUT, EVEN IF THIS BE
CONCEDED, IT CANNOT BE CONTENDED THAT THE CASE STANDS AS AUTHORITY FOR
THE PROPOSITION THAT A GROSS RECEIPTS TAX AS SUCH UPON THE EARNINGS OF
A GOVERNMENT CONTRACTOR, FROM HIS GOVERNMENT CONTRACT, IS NOT A BURDEN
OR IMPEDIMENT UPON THE OPERATIONS OF THE UNITED STATES WITHIN THE RULE
OF FEDERAL IMMUNITY. 

MUCH STRESS IS LAID BY THE SOLICITOR GENERAL UPON THE DECISION IN
LIGGETT & MYERS CO. V. UNITED STATES, 299 U.S. 383, AND HE SUGGESTS
THAT THE VIEWS THEREIN STATED BE ADOPTED IN THE PRESENT CASE IN
PREFERENCE TO THOSE EMBODIED IN THE PANHANDLE OIL CASE, SUPRA.  THE
SUGGESTION IMPLIES, CONTRARY TO THE FACT, THAT THE TWO DECISIONS ARE
CONTRADICTORY.  THE LIGGETT & MYERS COMPANY, A MANUFACTURER OF TOBACCO,
SOLD A PORTION OF ITS PRODUCT TO A STATE.  THE COMPANY RESISTED THE
COLLECTION OF A FEDERAL INTERNAL REVENUE TAX LAID "UPON ALL TOBACCO AND
SNUFF MANUFACTURED IN OR IMPORTED INTO THE UNITED STATES, AND HEREAFTER
SOLD BY THE MANUFACTURER OR IMPORTER, OR REMOVED FOR CONSUMPTION OR
SALE" AT A FLAT RATE IN CENTS PER POUND "TO BE PAID BY THE MANUFACTURER
OR IMPORTER THEREOF."  UPON ANALYSIS OF THE STATUTE IT WAS CONCLUDED
THAT THE TAX WAS UPON THE MANUFACTURE AND THAT PAYMENT WAS MERELY
POSTPONED UNTIL REMOVAL OR SALE.  THE TAX DID NOT VARY IN AMOUNT WITH
THE PRICE RECEIVED FOR THE TOBACCO AND WAS NOT IN TERMS UPON ITS SALE. 
UPON THIS GROUND THE INDIAN MOTOCYCLE CO. CASE AND THE PANHANDLE CASE
WERE DISTINGUISHED. 

IT MAY BE CONCEDED THAT OFTEN IT IS DIFFICULT TO DETERMINE WHETHER A
TAX IS LAID UPON THE LOCAL OPERATIONS OF A MANUFACTURER OR CONTRACTOR
OR UPON THE ACTUAL SALE OF HIS PRODUCT.  BUT SUCH DISTINCTIONS MUST BE
MADE.  INDEED THE COURT ITSELF IS REQUIRED TO MAKE SUCH AN ONE IN THE
INSTANT CASE IN DETERMINING THAT PAYMENT FOR WHAT THE APPELLEE
MANUFACTURED FOR THE GOVERNMENT IN PITTSBURGH, PENNSYLVANIA, DID NOT
CONSTITUTE A GROSS RECEIPT IN WEST VIRGINIA UNDER THE CONTRACT.  THE
COURT HAS REPEATEDLY BEEN CONFRONTED WITH THE PROBLEM WHETHER A TAX WAS
IN FACT ON THE SALE OF A COMMODITY OR UPON SOME PRIOR DEALING WITH IT
BY THE PRODUCER OR SUPPLIER.  WHILE THE DISTINCTIONS DRAWN MAY SEEM
SOMEWHAT NICE, EXAMINATION OF THE FACTS CARRIES CONVICTION THAT THE
DISTINCTIONS ARE SUBSTANTIAL.  FN36 

IT IS SUGGESTED THAT THE APPELLEE'S STATUS AS AN INDEPENDENT
CONTRACTOR LIFTS THE BAN FROM THE TAX.  THIS IS TO IGNORE THE DIRECT
BEARING OF THE EXACTION ON THE TRANSACTION BETWEEN THE CONTRACTOR AND
THE GOVERNMENT.  THE FACT THAT THE TAX IS LAID UPON HIM WHO CONTRACTS
WITH THE GOVERNMENT RATHER THAN UPON THE CONTRACT AS SUCH, OR THE
GOVERNMENT ITSELF, IS IMMATERIAL.  EVERY PURCHASER OF GOVERNMENT
OBLIGATIONS IS AN INDEPENDENT CONTRACTOR WITH THE GOVERNMENT.  IF THE
FACT THAT THE TAXPAYER IS AN INDEPENDENT CONTRACTOR WERE SIGNIFICANT,
IT WOULD HAVE VALIDATED EVERY TAX LAID UPON THE OWNERSHIP OF GOVERNMENT
OBLIGATIONS OR UPON THE INTEREST RECEIVED THEREFROM.  FN37 IT HAS BEEN
HELD THAT ORES PRODUCED BY AN INDEPENDENT CONTRACTOR FOR THE
GOVERNMENT, THOUGH STILL IN HIS POSSESSION, CANNOT BE TAXED BY A STATE;
FN38  AND THAT A LICENSE TAX UPON AN INDEPENDENT CONTRACTOR CANNOT BE
MEASURED BY THE GROSS RECEIPTS FROM HIS TRANSACTIONS WITH THE
GOVERNMENT.  FN39 

WHAT WAS SAID BY MR. JUSTICE BRADLEY, DISSENTING IN RAILROAD COMPANY
V. PENISTON, 18 WALL.  5, 38, WHEN READ IN THE LIGHT OF ITS CONTEXT,
HAS NO BEARING UPON THE ISSUE HERE PRESENTED.  IN M'CULLOCH V.
MARYLAND, IN HOLDING THAT A TAX UPON THE OPERATIONS OF THE UNITED
STATES BANK INVADED THE FEDERAL IMMUNITY, CHIEF JUSTICE MARSHALL SAID: 

"IT (THE IMMUNITY) DOES NOT EXTEND TO A TAX PAID BY THE REAL PROPERTY
OF THE BANK, IN COMMON WITH THE OTHER REAL PROPERTY WITHIN THE STATE,
..." 

IN THE PENISTON CASE THE QUESTION WAS WHETHER A UNIFORM AD VALOREM
STATE TAX COULD LAWFULLY BE ASSESSED UPON THE INTRASTATE PROPERTY OF
THE RAILROAD, A FEDERAL CORPORATION.  THE COURT HELD THAT IT COULD. 
THE CORRECTNESS OF THE DECISION HAS NEVER BEEN DOUBTED.  JUSTICES
BRADLEY AND FIELD, HOWEVER, THOUGHT THAT THE SCOPE OF THE IMMUNITY WAS
SO BROAD AS TO EXEMPT EVEN THE LOCAL PROPERTY OF A FEDERAL
INSTRUMENTALITY FROM SUCH A UNIFORM LOCAL TAX.  IT IS TO BE OBSERVED
THAT NO OTHER KIND OF EXACTION WAS INVOLVED.  MR. JUSTICE BRADLEY
INSISTED THAT WHILE SUCH A TAX MIGHT LAWFULLY BE LAID UPON THE PROPERTY
OF ONE WHO WAS A MERE CONTRACTOR WITH THE UNITED STATES IT COULD NOT BE
LAID UPON THE LOCAL ASSETS OF A FEDERAL CORPORATE INSTRUMENTALITY.  THE
CHALLENGED TAX WAS NOT UPON THE FRANCHISE OF THE CORPORATION GRANTED BY
THE GOVERNMENT, NOT ON ITS RIGHT TO EXIST WITHIN THE STATE, NOR UPON
THE GROSS RECEIPTS FROM ITS OPERATIONS.  CONFESSEDLY THE PROPERTY OF A
CONTRACTOR WITH THE GOVERNMENT IS MORE REMOTE FROM THE GOVERNMENT'S
OPERATIONS THAN IS THE PROPERTY OF A GOVERNMENT INSTRUMENTALITY.  IF
THE LATTER MAY BE LOCALLY TAXED A FORTIORI THE FORMER MAY, AND THE
LANGUAGE OF MR. JUSTICE BRADLEY APPLIED ONLY TO THAT SITUATION, AND NOT
TO A GROSS RECEIPTS TAX SUCH AS WE HAVE HERE. 

DOES THE FACT THAT THE TAX IS NON-DISCRIMINATORY SAVE IT?  THE
SOLICITOR GENERAL, AS WE HAVE SEEN, SO ARGUES.  HE SAYS THAT BOTH THE
APPELLEE AND THE UNITED STATES DERIVE SUBSTANTIAL BENEFITS IN
CONNECTION WITH THE FEDERAL PROJECTS LOCATED IN THE STATE AND ADDS THAT
IT SEEMS THESE BENEFITS SHOULD NOT BE FREE.  THOUGH HE DOES NOT
OVERLOOK THE FACT THAT WHEN THE WORK IS COMPLETED THE UNITED STATES
WILL CONTINUE TO RECEIVE BENEFITS FROM THE STATE, HE CONTENDS THAT A
NON-DISCRIMINATORY TAX UPON THE GROSS RECEIPTS OF THE CONTRACTOR IS BUT
A METHOD OF REIMBURSING THE STATE FOR BENEFITS CONFERRED.  THE ARGUMENT
PROVES TOO MUCH.  IT REQUIRES THAT EQUAL AND UNIFORM STATE TAXATION
UPON FEDERAL PROPERTY ON WHICH STAND CUSTOMS HOUSES, POST OFFICES,
FORTS, ARSENALS, ET ID OMNE GENUS, BE UPHELD.  IN EVERY INSTANCE OF THE
OWNERSHIP AND USE OF PROPERTY WITHIN A STATE, ACCORDING TO THE
ARGUMENT, THE FEDERAL GOVERNMENT RECEIVES SUBSTANTIAL BENEFITS FOR
WHICH IT SHOULD PAY.  THE SOLICITOR GENERAL BALKS AT THE RESULT OF HIS
POSITION.  HE SAYS: "WE RECOGNIZE THAT THE LOGIC OF OUR ANALYSIS OF
BENEFITS RECEIVED WOULD LEAD TO TAXATION OF THE SOVEREIGN ITSELF.  BUT
THE ATTRIBUTES OF SOVEREIGNTY MAY BE SUCH AS TO PREVENT A TAX FROM
BEING IMPOSED UPON THE GOVERNMENT ITSELF.  CERTAINLY, THE PRINCIPLE OF
THE TAX IMMUNITY OF THE SOVEREIGN ITSELF IS TOO FIRMLY ESTABLISHED NOW
TO BE REEXAMINED." 

THE SHORT ANSWER IS THAT THE IMMUNITY FROM STATE TAXATION UPON THE
MEANS, THE OPERATIONS, AND THE INSTRUMENTS OF THE GOVERNMENT IS JUST AS
FIRMLY ESTABLISHED AS IS THE IMMUNITY FROM TAXATION OF THE GOVERNMENT'S
PROPERTY OR OFFICES OR POSTS CREATED BY IT, AND THAT NEITHER CLASS OF
TAXATION CAN BE JUSTIFIED BY THE FACT THAT THE BURDEN ON THE GOVERNMENT
IS UNIFORM WITH THAT LAID ON OTHERS. 

TAXES CONDEMNED BY THE COURT'S DECISIONS WHICH WERE IMPOSED UPON THE
PRINCIPAL AND INTEREST OF FEDERAL SECURITIES, UPON THE PRODUCT OF
MINING LESSEES, IN WHICH THE GOVERNMENT HAD AN INTEREST, UPON STORAGE
AND SALE OF PROPERTY SOLD TO THE GOVERNMENT, UPON THE OPERATION AND
FRANCHISES OF FEDERAL INSTRUMENTALITIES, SUCH AS NATIONAL BANKS, WERE
NON-DISCRIMINATORY.  THEY BORE EQUALLY AND ALIKE UPON PROPERTY AND
OPERATIONS IN WHICH THE GOVERNMENT WAS INTERESTED AND THOSE WHICH WERE
ALIEN TO IT, BUT THEY WERE VOIDED AS ILLEGALLY BURDENING THE OPERATIONS
OF THE UNITED STATES.  THE FACT THAT TAXES UPON GOVERNMENT PROPERTY AND
UPON PROPERTY OF WHOLLY OWNED GOVERNMENT CORPORATIONS WERE NON
DISCRIMINATORY DID NOT SUFFICE TO SAVE THEM.  TAXES ON FRANCHISES
GRANTED BY THE FEDERAL GOVERNMENT, TAXES UPON THE OFFICE OR SALARY OF A
FEDERAL OFFICIAL, THOUGH NON-DISCRIMINATORY, NEVERTHELESS FELL UNDER
THE BAN.  IT WAS SAID IN JOHNSON V. MARYLAND, 254 U.S. 51, 55: 

"HERE THE QUESTION IS WHETHER THE STATE CAN INTERRUPT THE ACTS OF THE
GENERAL GOVERNMENT ITSELF.  WITH REGARD TO TAXATION, NO MATTER HOW
REASONABLE, OR HOW UNIVERSAL AND UNDISCRIMINATING, THE STATE'S
INABILITY TO INTERFERE HAS BEEN REGARDED AS ESTABLISHED SINCE MCCULLOCH
V. MARYLAND, 4 WHEAT.  316." 

THE ELEMENT OF DISCRIMINATION BECOMES IMPORTANT ONLY IN A CASE WHERE
A TAX WHICH WOULD OTHERWISE BE PERMISSIBLE IS AIMED AT THE TAXPAYER
BECAUSE OF HIS RELATION TO THE GOVERNMENT.  OF COURSE A STATE CANNOT
LAY A HEAVIER BURDEN UPON THOSE CONTRACTING WITH THE GOVERNMENT SIMPLY
BECAUSE THEY ARE SUCH CONTRACTORS.  A DISCRIMINATION OF THAT NATURE ON
ITS FACE SPELLS A HOSTILE PURPOSE, AN INTENT TO HINDER AND BURDEN THE
GOVERNMENT, TO IMPEDE ITS OPERATIONS, AND TO DISCOURAGE DEALING WITH
IT.  BUT THE QUESTION OF DISCRIMINATION HAS NO PLACE IN THE
CONSIDERATION OF THE LEGALITY OF AN EXACTION LAID DIRECTLY UPON THE
GOVERNMENT, UPON ITS OPERATIONS, OR UPON THE MEANS OR INSTRUMENTALITIES
IT HAS CHOSEN FOR EXECUTING ITS POWERS. 

AS WE HAVE SEEN, THE SOLICITOR GENERAL SUGGESTS THAT THE TAX SHOULD
BE SUSTAINED, ALTHOUGH IT LAYS A BURDEN ON THE UNITED STATES, BECAUSE
THE BURDEN IS A "NORMAL TAX BURDEN" AND THE UNITED STATES CAN BEAR IT.
THE OPINION OF THE COURT SUGGESTS THE SAME THOUGHT AND ADDS THAT IF
WEST VIRGINIA EVER IMPOSES A GROSS RECEIPTS TAX UNIFORM IN ITS
INCIDENCE, BUT INORDINATELY HEAVY, CONGRESS HAS POWER TO RELIEVE THE
GOVERNMENT FROM SUCH INTERFERENCE.  BOTH SUGGESTIONS ARE IN THE TEETH
OF ALL THAT HAS BEEN SAID BY THE COURT ON THE SUBJECT OF FEDERAL
IMMUNITY.  THE NECESSITY FOR ENFORCEMENT OF THE DOCTRINE WAS EMBODIED
IN THE PHRASE OF CHIEF JUSTICE MARSHALL IN M'CULLOCH V. MARYLAND,
SUPRA, THAT "THE POWER TO TAX INVOLVES THE POWER TO DESTROY."  AS WAS
SAID IN KNOWLTON V. MOORE, 178 U.S. 41, 60: 

"THIS PRINCIPLE IS PERTINENT ONLY WHEN THERE IS NO POWER TO TAX A
PARTICULAR SUBJECT, AND HAS NO RELATION TO A CASE WHERE SUCH RIGHT
EXISTS.  IN OTHER WORDS, THE POWER TO DESTROY WHICH MAY BE THE
CONSEQUENCE OF TAXATION IS A REASON WHY THE RIGHT TO TAX SHOULD BE
CONFINED TO SUBJECTS WHICH MAY BE LAWFULLY EMBRACED THEREIN, EVEN
ALTHOUGH IT HAPPENS THAT IN SOME PARTICULAR INSTANCE NO GREAT HARM MAY
BE CAUSED BY THE EXERCISE OF THE TAXING AUTHORITY AS TO A SUBJECT WHICH
IS BEYOND ITS SCOPE." 

CHIEF JUSTICE MARSHALL DENIED THE EXISTENCE OF THE POWER.  FROM THAT
DAY TO THIS THE COURT HAS CONSISTENTLY HELD THAT THE QUESTION IS NOT
ONE OF QUANTUM, NOT ONE OF THE WEIGHT OF THE BURDEN, BUT ONE OF POWER. 
THE COURT HAS SAID THAT THE ATTEMPT TO TAX THE MEANS EMPLOYED BY THE
GOVERNMENT IS "THE USURPATION OF A POWER WHICH THE PEOPLE OF A SINGLE
STATE CANNOT GIVE."  REFERRING TO THE DECISION IN M'CULLOCH V.
MARYLAND, IT WAS SAID: 

"THE DECISION IN THAT CASE WAS NOT PUT UPON ANY CONSIDERATION OF
DEGREE BUT UPON THE ENTIRE ABSENCE OF POWER ON THE PART OF THE STATES
TO TOUCH, IN THAT WAY AT LEAST, THE INSTRUMENTALITIES OF THE UNITED
STATES; 4 WHEAT.  429, 430; AND THAT IS THE LAW TODAY."  FN40 

AGAIN THE COURT HAS SAID: 

"IT IS OBVIOUS, THAT THE SAME POWER WHICH IMPOSES A LIGHT DUTY, CAN
IMPOSE A VERY HEAVY ONE, ONE WHICH AMOUNTS TO A PROHIBITION.  QUESTIONS
OF POWER DO NOT DEPEND ON THE DEGREE TO WHICH IT MAY BE EXERCISED.  IF
IT MAY BE EXERCISED AT ALL, IT MUST BE EXERCISED AT THE WILL OF THOSE
IN WHOSE HANDS IT IS PLACED.  IF THE TAX MAY BE LEVIED IN THIS FORM BY
A STATE, IT MAY BE LEVIED TO AN EXTENT WHICH WILL DEFEAT THE REVENUE BY
IMPOST, SO FAR AS IT IS DRAWN FROM IMPORTATIONS INTO THE PARTICULAR
STATE."  FN41    AGAIN IT WAS RECENTLY SAID: 

"WHERE THE PRINCIPLE APPLIES IT IS NOT AFFECTED BY THE AMOUNT OF THE
PARTICULAR TAX OR THE EXTENT OF THE RESULTING INTERFERENCE, BUT IS
ABSOLUTE.  MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 430; UNITED STATES V.
BALTIMORE & OHIO R. CO., 17 WALL.  322, 327; JOHNSON V. MARYLAND, 254
U.S. 51, 55-56; GILLESPIE V. OKLAHOMA, 257 U.S. 501, 505; CRANDALL V.
NEVADA, 6 WALL.  35, 44-46."  FN42 

NO ONE DENIES THE COMPETENCE OF THE CONGRESS TO WAIVE THE IMMUNITY IN
WHOLE OR IN PART.  FN43 BUT THIS IS THE REVERSE OF SAYING THE POWER TO
TAX FEDERAL MEANS AND OPERATIONS EXISTS IN THE STATES SUBJECT TO VETO
BY CONGRESS OF ANY EXORBITANT EXERCISE OF THE POWER.  AND IT MAY BE
PERTINENT TO SUGGEST THAT, IF, AS THE COURT HAS ALWAYS HELD, THE
IMMUNITY IS RECIPROCAL, THE STATE LEGISLATURES, BY A PARITY OF
REASONING, OUGHT TO HAVE THE POWER TO PROHIBIT FEDERAL TAXES UPON STATE
OPERATIONS, IF THEY BE DEEMED IMMODERATE. 

IT MUST BE EVIDENT THAT IF THE PRINCIPLE OF FEDERAL IMMUNITY IS TO BE
PRESERVED, IF ALL THAT THE COURT HAS SAID RESPECTING IT IS NOT TO BE
SET ASIDE, THE GROSS RECEIPTS TAX UNDER REVIEW CANNOT BE RESCUED FROM
CONDEMNATION BY THE CIRCUMSTANCES THAT IT BEARS UPON AN INDEPENDENT
CONTRACTOR, DOES NOT DISCRIMINATE, AND IS NOT SO BURDENSOME AS
SERIOUSLY TO INTERFERE WITH GOVERNMENTAL FUNCTIONS. 

SUCH A TAX UPON GROSS RECEIPTS HAS BEEN CONTRASTED IN ALL THE
DECISIONS, INCLUDING THOSE DEALING WITH BURDENS UPON COMMERCE, WITH A
TAX UPON NET INCOME; THE ONE BEING HELD A FORBIDDEN BURDEN AND THE
OTHER A PERMISSIBLE EXACTION.  DESPITE THE FACT THAT THE COURT HAS
REPEATEDLY APPLIED THE SAME TESTS OF VALIDITY TO TAXES ALLEGED TO
BURDEN INTERSTATE COMMERCE AS IT HAS TO EXACTIONS SAID TO BURDEN THE
OPERATIONS OF THE FEDERAL GOVERNMENT,  FN44  IT IS SAID IN THE
OPINION: 

"RESPONDENT INVOKES OUR DECISIONS IN THE FIELD OF INTERSTATE
COMMERCE, WHERE A TAX UPON THE GROSS INCOME OF THE TAXPAYER DERIVED
FROM INTERSTATE COMMERCE HAS LONG BEEN HELD TO BE AN UNCONSTITUTIONAL
BURDEN.... 

"BUT THE DIFFERENCE IS PLAIN.  PERSONS HAVE A CONSTITUTIONAL RIGHT TO
ENGAGE IN INTERSTATE COMMERCE FREE FROM BURDENS IMPOSED BY A STATE TAX
UPON THE BUSINESS WHICH CONSTITUTES SUCH COMMERCE OR THE PRIVILEGE OF
ENGAGING IN IT OR THE RECEIPTS AS SUCH DERIVED FROM IT." 

AS HAS BEEN POINTED OUT, THE DOCTRINE OF FEDERAL IMMUNITY FROM STATE
TAXATION IS BASED UPON THE RIGHT OF THE FEDERAL GOVERNMENT TO CARRY ON
ITS LAWFUL OPERATIONS FREE FROM BURDEN OR IMPEDIMENT IMPOSED BY A STATE
UPON THE BUSINESS WHICH CONSTITUTE SUCH OPERATIONS OR THE PRIVILEGE OF
ENGAGING IN THEM.  THE CONSTITUTION CONTAINS NO CLAUSE FORBIDDING THE
STATES TO BURDEN, IMPEDE, OR INTERFERE WITH THE OPERATIONS OF THE
FEDERAL GOVERNMENT.  IN EXPRESS TERMS IT CONFERS UPON THAT GOVERNMENT
POWER TO CONDUCT THOSE OPERATIONS.  NOR DOES THE CONSTITUTION CONTAIN
ANY CLAUSE PROHIBITING THE STATES FROM BURDENING OR INTERFERING WITH
THE CONDUCT OF INTERSTATE COMMERCE.  IN EXPRESS TERMS IT CONFERS UPON
CONGRESS THE POWER TO REGULATE THAT COMMERCE.  IN EACH CASE THERE IS
IMPLIED FROM THE FEDERAL POWER DELEGATED BY THE PEOPLE AN IMMUNITY FROM
INTERFERENCE OR BURDEN BY THE STATES.  THE CASES ARE ENTIRELY
ANALOGOUS.  COMPARING THE IMMUNITY OF INTERSTATE COMMERCE FROM STATE
TAXATION WITH THE LIKE IMMUNITY OF THE FEDERAL GOVERNMENT, THE COURT
HAS SAID: 

"THE RULE AS TO INSTRUMENTALITIES OF THE UNITED STATES ON THE OTHER
HAND IS ABSOLUTE IN FORM AND AT LEAST STRICTER IN SUBSTANCE."  FN45 

THE CASES IN OUR REPORTS RESPECTING THE IMMUNITY OF INTERSTATE
COMMERCE FROM BURDEN BY STATE TAXATION ARE THE COMPLETE ANALOGUE OF
THOSE DEALING WITH THE FEDERAL IMMUNITY FROM THE LIKE BURDEN.  AS IN
THE CASE OF A PRIVATE CORPORATION EMPLOYED AS AN AGENCY OF THE UNITED
STATES, SO IN THE CASE OF A PRIVATE CORPORATION ENGAGED IN INTERSTATE
COMMERCE, THE STATES ARE FREE TO LAY A UNIFORM AND NONDISCRIMINATORY
TAX UPON THE PROPERTY EMPLOYED IN THE BUSINESS WITHIN THEIR
JURISDICTION.  FN46 

A TAX UPON THE GROSS RECEIPTS OF CORPORATIONS DERIVED BOTH FROM
INTRASTATE AND INTERSTATE COMMERCE IS BAD BECAUSE IT BURDENS THE
LATTER.  FN47  A FRANCHISE TAX UPON A CORPORATION TRANSACTING AN
INTERSTATE BUSINESS, MEASURED BY ITS INTERSTATE BUSINESS OR ITS
PROPERTY WITHOUT THE STATE, IS VOID, ON THE SAME PRINCIPLE THAT A TAX
LAID UPON THE FRANCHISE OF A CORPORATION WHICH IS A FEDERAL AGENCY OR
INSTRUMENTALITY IS VOID.  FN48 

A SALES TAX ON GASOLINE SOLD WITHIN A STATE IS INVALID AS IT AFFECTS
GASOLINE PURCHASED OUTSIDE THE STATE FOR USE THEREIN, FOR THE SAME
REASON A SALES TAX UPON SALES TO THE UNITED STATES IS INVALID.  FN49  A
TAX UPON THE GROSS RECEIPTS OF ONE ENGAGED IN INTERSTATE COMMERCE IS
BAD BECAUSE A DIRECT BURDEN ON THAT COMMERCE IN THE SAME SENSE THAT A
TAX ON THE GROSS RECEIPTS OF BUSINESS DONE WITH THE UNITED STATES IS A
DIRECT BURDEN ON THE TRANSACTION WITH THE FEDERAL GOVERNMENT.  FN50  IN
CONTRAST, A TAX ON THE NET INCOME OF ONE ENGAGED IN INTERSTATE COMMERCE
IS NOT UPON HIS TRANSACTIONS IN THAT COMMERCE, BUT SO REMOTE THEREFROM
AS NOT TO BURDEN IT, JUST AS A NET INCOME TAX UPON ONE WHO CONTRACTS
WITH THE FEDERAL GOVERNMENT IS INOFFENSIVE TO THE RULE OF FEDERAL
IMMUNITY.  FN51 

A STATE MAY NOT LAY AN OCCUPATION TAX UPON THE ACT OF ENGAGING IN
INTERSTATE COMMERCE, FOR THE SAME REASON THAT IT MAY NOT LAY A SIMILAR
TAX UPON THE EMPLOYMENT OF AN OFFICER OF THE UNITED STATES.  FN52  THE
SAME CONSIDERATIONS OF REMOTENESS SUSTAIN TAXES UPON THE MERE PURCHASE
OF ARTICLES INTENDED FOR USE IN INTERSTATE COMMERCE OR FOR THE
FULFILMENT OF GOVERNMENT CONTRACTS.  FN53 

I CONCLUDE, THEN, THAT THE TAX IN QUESTION IS PLAINLY IMPOSED UPON
THE OPERATIONS OF THE FEDERAL GOVERNMENT; THAT IT FALLS SQUARELY WITHIN
THE DEFINITION OF SUCH A BURDEN AND IS PROHIBITED UPON THE PRINCIPLE
ANNOUNCED IN M'CULLOCH V. MARYLAND AND EVER SINCE CONSISTENTLY APPLIED
IN THE DECISIONS OF THE COURT.  I THINK THAT THE JUDGMENT SHOULD BE
AFFIRMED. 

THESE VIEWS WITH RESPECT TO THE NATURE OF THE TAX RENDER IT
UNNECESSARY TO EXPRESS ANY OPINION AS TO THE ASSERTED EXCLUSIVE FEDERAL
JURISDICTION OVER THE AREA WITHIN WHICH THE APPELLEE PURSUED THE
ACTIVITIES WHICH ARE THE SUBJECT OF THE EXACTION. 

FN1  INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570, 575; BOARD
OF TRUSTEES V. UNITED STATES, 289 U.S. 48, 59; HELVERING V. POWERS, 293
U.S. 214, 225. 

FN2  M'CULLOCH V. MARYLAND, 4 WHEAT.  316, 430; WESTON V. CHARLESTON,
2 PET. 449, 467. 

FN3  CLALLAM COUNTY V. UNITED STATES, 263 U.S. 341, 344. 

FN4  MCGOON V. SCALES, 9 WALL.  23, 27; TUCKER V. FERGUSON, 22 WALL. 
527, 572; VAN BROCKLIN V. TENNESSEE, 117 U.S. 151; WISCONSIN CENTRAL R.
CO. V. PRICE COUNTY, 133 U.S. 496, 504; IRWIN V. WRIGHT, 258 U.S. 219,
228.  BUT PROPERTY ACQUIRED FROM THE GOVERNMENT, UPON ITS SEVERANCE,
LOSES THE IMMUNITY IN THE HANDS OF THE TRANSFEREE.  FORBES V. GRACEY,
94 U.S. 762; GROUP NO. 1 OIL CORP. V. BASS, 283 U.S. 279; INDIAN
TERRITORY OIL CO. V. BOARD, 288 U.S. 325. 

FN5  DOBBINS V. COMMISSIONERS, 16 PET. 435; COLLECTOR V. DAY, 11
WALL.  113.  BUT THE EXEMPTION DOES NOT EXTEND TO TAXES LAID UPON HIS
PRIVATELY OWNED PROPERTY OR A SALES TAX ON HIS PERSONAL PURCHASES, EVEN
THOUGH THEY BE OF ARTICLES HE USES IN CONNECTION WITH HIS PERFORMANCE
OF HIS GOVERNMENT WORK.  DYER V. CITY OF MELROSE, 215 U.S. 594; TIRRELL
V. JOHNSTON, 293 U.S. 533; 86 N.H. 530. 

FN6  CLALLAM COUNTY V. UNITED STATES, 263 U.S. 341; NEW BRUNSWICK V.
UNITED STATES, 276 U.S. 547; NEW YORK EX REL. ROGERS V. GRAVES, 299
U.S. 401.  FOR THE SAME REASON A STATE TAX WHICH BURDENS THE FISCAL
OPERATIONS OF A TERRITORY MUST FALL:  FARMERS & MECHANICS SAVINGS BANK
V. MINNESOTA, 232 U.S. 516. 

FN7  INTERSTATE RAILROAD:  RAILROAD COMPANY V. PENISTON, 18 WALL. 
5.  NATIONAL BANKS:  M'CULLOCH V. MARYLAND, 4 WHEAT.  316; SMITH V.
KANSAS CITY TITLE & T. CO., 255 U.S. 180. 

FN8  OSBORN V. BANK, 9 WHEAT.  738; RAILROAD COMPANY V. PENISTON, 18
WALL.  5; OWENSBORO NATIONAL BANK V. OWENSBORO, 173 U.S. 664. 

FN9  RAILROAD COMPANY V. PENISTON, 18 WALL.  5; INDIAN TERRITORY OIL
CO. V. BOARD, 288 U.S. 325, 327, 328. 

FN10  THOMSON V. PACIFIC RAILROAD, 9 WALL.  579; WESTERN UNION TEL.
CO. V. MASSACHUSETTS, 125 U.S. 530; MASSACHUSETTS V. WESTERN UNION TEL.
CO., 141 U.S. 40; BALTIMORE SHIPBUILDING CO. V. BALTIMORE, 195 U.S.
375; FIDELITY & DEPOSIT CO. V. PENNSYLVANIA, 240 U.S. 319; CHOCTAW, O.
& G.R. CO. V. MACKEY, 256 U.S. 531; SUSQUEHANNA POWER CO. V. TAX
COMMISSION, 283 U.S. 291; BROAD RIVER POWER CO. V. QUERY, 288 U.S. 178;
FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S. 17. 

FN11  CHOCTAW & GULF R. CO. V. HARRISON, 235 U.S. 292; GILLESPIE V.
OKLAHOMA, 257 U.S. 501; JAYBIRD MINING CO. V. WEIR, 271 U.S. 609. 

FN12  INDIAN TERRITORY OIL CO. V. BOARD, 288 U.S. 325; TABER V.
INDIAN TERRITORY OIL CO., 300 U.S. 1. 

FN13  THE SOLICITOR GENERAL'S ARGUMENT, NOTICED LATER, WOULD,
HOWEVER, VALIDATE A TAX OF ANY DESCRIPTION IMPOSED UPON FEDERAL
INSTRUMENTALITIES, PROVIDED THE EXACTION WERE NON-DISCRIMINATORY. 

FN14  OSBORN V. BANK, 9 WHEAT.  738, 867. 

FN15  FEDERAL LAND BANK V. CROSLAND, 261 U.S. 374. 

FN16  TELEGRAPH CO. V. TEXAS, 105 U.S. 460. 

FN17  LELOUP V. PORT OF MOBILE, 127 U.S. 640; WILLIAMS V. TALLADEGA,
226 U.S. 404. 

FN18 WESTON V. CHARLESTON, 2 PET. 449, 465. 

FN19  BANK OF COMMERCE V. NEW YORK CITY, 2 BLACK 620; BANK TAX CASE,
2 WALL.  200; BANK V. SUPERVISORS, 7 WALL.  26; HOME SAVINGS BANK V.
DES MOINES, 205 U.S. 503; MISSOURI V. GEHNER, 281 U.S. 313. 

FN20  NORTHWESTERN INS. CO. V. WISCONSIN, 275 U.S. 136; NATIONAL LIFE
INS. CO. V. UNITED STATES, 277 U.S. 508.  AND NO FORM OF WORDS OR
SUBTERFUGE CAN SAVE AN ACT THE INTENT OF WHICH IS TO REACH THE INCOME
FROM FEDERAL BONDS.  MILLER V. MILWAUKEE, 272 U.S. 713; MACALLEN CO. V.
MASSACHUSETTS, 279 U.S. 620, 629. 

FN21 THE BANKS V. THE MAYOR, 7 WALL.  16, 25. 

FN22  HOME INS. CO. V. NEW YORK, 119 U.S. 129; HOME INS. CO. V. NEW
YORK, 134 U.S. 594. 

FN23  PLUMMER V. COLER, 178 U.S. 115; GREINER V. LEWELLYN, 258 U.S.
384. 

FN24  HIBERNIA SAVINGS SOCIETY V. SAN FRANCISCO, 200 U.S. 310. 

FN25  WESTON V. CHARLESTON, 2 PET. 449, 465. 

FN26  JAYBIRD MINING CO. V. WEIR, 271 U.S. 609. 

FN27  INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570; PANHANDLE
OIL CO. V. MISSISSIPPI EX REL. KNOX, 277 U.S. 218; GRAYSBURG OIL CO. V.
TEXAS, 278 U.S. 582; 3 S.W.(2D) 427.  COMPARE BROWN V. MARYLAND, 12
WHEAT.  419, 440. 

FN28  GRAVES V. TEXAS COMPANY, 298 U.S. 393. 

FN29  TRINITYFARM CONSTRUCTION CO. V. GROSJEAN, 291 U.S. 466. 

FN30  GENERAL CONSTRUCTION CO. V. FISHER, 295 U.S. 715; 149 ORE.  84;
39 P.(2D) 358; BURNET V. A.T. JERGINS TRUST, 288 U.S. 508. 

FN31  ALWARD V. JOHNSON, 282 U.S. 509. 

FN32  OSBORN V. BANK, 9 WHEAT.  738, 867. 

FN33  IN THIS BRIEF THE SOLICITOR GENERAL STATED THAT FIGURED UPON
THE ESTIMATED PURCHASES OF THE GOVERNMENT FOR THE THEN CURRENT FISCAL
YEAR, STATE SALES TAXES ON GASOLINE OF FOUR CENTS PER GALLON, IMPOSED
BY ALL THE STATES, WOULD IMPOSE AN ADDED BURDEN UPON THE UNITED STATES
OF $4,479,661. 

FN34  SEE THE CASES CITED IN NOTE 10, SUPRA. 

FN35  SEE NOTE 5, SUPRA. 

FN36  CORNELL V. COYNE, 192 U.S. 418; HOPE NATURAL GAS CO. V. HALL,
274 U.S. 284; WHEELER LUMBER CO. V. UNITED STATES, 281 U.S. 572.  THE
SAME PROBLEM ARISES IN CONNECTION WITH TAXATION ALLEGED TO BURDEN
INTERSTATE COMMERCE.  SEE AMERICAN MANUFACTURING CO. V. ST. LOUIS, 250
U.S. 459. 

FN37  SEE THE CASES CITED IN NOTES 17, 18 AND 19. 

FN38  JAYBIRD MINING CO. V. WEIR, 271 U.S. 609. 

FN39  WESTERN UNION TEL. CO. V. TEXAS, 105 U.S. 460; WILLIAMS V.
TALLADEGA, 226 U.S. 404; INDIAN MOTOCYCLE CO. V. UNITED STATES, 283
U.S. 570; PANHANDLE OIL CO. V. MISSISSIPPI EX REL. KNOX, 277 U.S. 218;
GRAVES V. TEXAS COMPANY, 298 U.S. 393. 

FN40  JOHNSON V. MARYLAND, 254 U.S. 51, 55. 

FN41  BROWN V. MARYLAND, 12 WHEAT.  419, 439. 

FN42  INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570, 575. 

FN43  VAN ALLEN V. ASSESSORS, 3 WALL.  573. 

FN44  TELEGRAPH CO. V. TEXAS, 105 U.S. 460, 465; WESTERN UNION
TELEGRAPH CO. V. TAGGART, 163 U.S. 1, 14; WESTERN UNION TELEGRAPH CO.
V. KANSAS, 216 U.S. 1, 32; U.S. EXPRESS CO. V. MINNESOTA, 223 U.S. 335,
344; CHOCTAW, O. & G.R. CO. V. HARRISON, 235 U.S. 292, 299; KANSAS
CITY, F.S. & M. RY. CO. V. BOTKIN, 240 U.S. 227, 232; GILLESPIE V.
OKLAHOMA, 257 U.S. 501, 504-5; NORTHWESTERN MUTUAL LIFE INS. CO. V.
WISCONSIN, 275 U.S. 136, 140; MACALLEN CO. V. MASSACHUSETTS, 279 U.S.
620, 627; INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570, 575;
EASTERN AIR TRANSPORT V. SOUTH CAROLINA TAX COMM'N, 285 U.S. 147, 152;
FOX FILM CORP. V. DOYAL, 286 U.S. 123, 126; LIGGETT & MYERS TOBACCO CO.
V. UNITED STATES, 299 U.S. 383, 387. 

FN45  GILLESPIE V. OKLAHOMA, 257 U.S. 501, 505. 

FN46  PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA, 141 U.S. 18; WESTERN
UNION TEL. CO. V. TAGGART, 163 U.S. 1; OLD DOMINION S.S. CO. V.
VIRGINIA, 198 U.S. 299; UNITED STATES EXPRESS CO. V. MINNESOTA, 223
U.S. 335; PULLMAN CO. V. RICHARDSON, 261 U.S. 330.  AND AS IN THE CASE
OF AGENTS OF THE FEDERAL GOVERNMENT OR CONTRACTORS WITH IT, A STATE MAY
MEASURE THE VALUE OF THE PROPERTY WITHIN ITS BORDERS BY A RECEIPTS TAX
IN LIEU OF ALL PROPERTY TAXES.  COMPARE UNITED STATES EXPRESS CO. V.
MINNESOTA, 223 U.S. 335; CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450;
PULLMAN CO. V. RICHARDSON, 261 U.S. 330, WITH ALWARD V. JOHNSON, 282
U.S. 509. 

FN47  PHILADELPHIA & SOUTHERN S.S. CO. V. PENNSYLVANIA, 122 U.S. 326;
GALVESTON, H. & S.A. RY. CO. V. TEXAS, 210 U.S. 217; MEYER V. WELLS,
FARGO & CO., 223 U.S. 298. 

FN48  COMPARE WESTERN UNION TEL. CO. V. KANSAS, 216 U.S. 1, AND OZARK
PIPE LINE CORP. V. MONIER, 266 U.S. 555, WITH CALIFORNIA V. CENTRAL
PACIFIC R. CO., 127 U.S. 1; OWENSBORO NATIONAL BANK V. OWENSBORO, 173
U.S. 664; THIRD NATIONAL BANK V. STONE, 174 U.S. 432; AND LOUISVILLE V.
THIRD NATIONAL BANK, 174 U.S. 435.    FN49  COMPARE COOK V.
PENNSYLVANIA, 97 U.S. 566, AND BOWMAN V. CONTINENTAL OIL CO., 256 U.S.
642, WITH PANHANDLE OIL CO. V. MISSISSIPPI EX REL. KNOX, 277 U.S. 218. 

FN50  COMPARE COOK V. PENNSYLVANIA, 97 U.S. 566, FARGO V. MICHIGAN,
121 U.S. 230, CREW LEVICK CO. V. PENNSYLVANIA, 245 U.S. 292, NEW JERSEY
BELL TEL. CO. V. STATE BOARD, 280 U.S. 338, FISHER'S BLEND STATION V.
STATE TAX COMM'N, 297 U.S. 650, PUGET SOUND CO. V. TAX COMM'N, ANTE, P.
90, WITH WESTERN UNION TEL. CO. V. TEXAS, 105 U.S. 460.    FN51
COMPARE SHAFFER V. CARTER, 252 U.S. 37, UNITED STATES GLUE CO. V. OAK
CREEK, 247 U.S. 321, AND ATLANTIC COAST LINE V. DAUGHTON, 262 U.S. 413,
WITH GENERAL CONSTRUCTION CO. V. FISHER, 295 U.S. 715(149 ORE.  84; 39
P.(2D) 358), AND BURNET V. A.T. JERGINS TRUST, 288 U.S. 508.  BUT SEE
GILLESPIE V. OKLAHOMA, 257 U.S. 501, AND BURNET V. CORONADO OIL & GAS
CO., 285 U.S. 393. 

FN52  COMPARE EAST OHIO GAS CO. V. TAX COMMISSION, 283 U.S. 465, WITH
DOBBINS V. COMMISSIONERS, 16 PET. 435, AND NEW YORK EX REL. ROGERS V.
GRAVES, 299 U.S. 401. 

FN53  COMPARE EASTERN AIR TRANSPORT V. SOUTH CAROLINA TAX COMM'N, 285
U.S. 147, WITH TRINITYFARM CONSTRUCTION CO. V. GROSJEAN, 291 U.S. 466,
AND TIRRELL V. JOHNSTON, 293 U.S. 533. 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE SUTHERLAND AND MR. JUSTICE BUTLER
JOIN IN THIS OPINION. 
..END :







MASON CO. V. TAX COMM'N, 302 U.S. 186 


NO. 7.  ARGUED APRIL 27, 1937.  REARGUED OCTOBER 12, 13, 1937.  -
DECIDED DECEMBER 6, 1937.  - 188 WASH. 98, 115 - 61 P.(2D) 1269, 1276,
AFFIRMED. 


1.  A STATE OCCUPATION TAX ON GROSS RECEIPTS MAY CONSTITUTIONALLY
INCLUDE THE RECEIPTS FROM CONSTRUCTION WORK DONE UNDER A CONTRACT WITH
THE UNITED STATES.  JAMES V. DRAVO CONTRACTING CO., ANTE P. 134.  P.
190. 

2.  ACQUISITION BY THE UNITED STATES OF EXCLUSIVE TERRITORIAL
JURISDICTION OVER LAND TO WHICH IT HAS ACQUIRED TITLE WITHIN A STATE,
IS DEPENDENT UPON CONSENT OF OR CESSION FROM THE STATE.  P. 197. 

3.  WHETHER A STATE HAS YIELDED TO THE UNITED STATES EXCLUSIVE
LEGISLATIVE AUTHORITY OVER LAND WITHIN THE STATE IS A FEDERAL
QUESTION.  P. 197. 

4.  THE PROVISIONS OF THE FEDERAL RECLAMATION ACT RELATIVE TO THE
ACQUISITION OF LAND, AND THE PROVISIONS OF REMINGTON'S REV. STATS. OF
WASHINGTON SECS. 7410-7412 GRANTING LAND TO THE UNITED STATES FOR
IRRIGATION PROJECTS, DO NOT INTEND THAT, WITH THE TITLE, THE UNITED
STATES SHALL ACQUIRE EXCLUSIVE JURISDICTION OVER THE LAND CONVEYED. 
PP. 197 ET SEQ. 

THIS APPLIES TO LAND IN THE BED OF A NAVIGABLE RIVER, SHORE LANDS AND
UPLANDS, INCLUDING SCHOOL LANDS. 

5.  THE TERM "OTHER NEEDFUL BUILDINGS" IN CONST. ART. I, SEC. 8, CL.
17, EMBRACES WHATEVER STRUCTURES ARE FOUND TO BE NECESSARY IN THE
PERFORMANCE OF THE FUNCTIONS OF THE FEDERAL GOVERNMENT.  JAMES V. DRAVO
CONTRACTING CO., ANTE P. 134.  P. 203. 

6.  THIS CLAUSE OF THE CONSTITUTION DOES NOT IMPLY THAT THE CONSENT
OF THE STATE TO PURCHASES MUST BE WITHOUT ANY RESERVATION OF
JURISDICTION.  JAMES V. DRAVO CONTRACTING CO., ANTE P. 134.  ID. 

SUCH AN IMPLICATION WOULD NOT BE CONSISTENT WITH THE FREEDOM OF THE
STATE AND WITH ITS ADMITTED AUTHORITY TO REFUSE OR QUALIFY CESSIONS OF
JURISDICTION WHEN PURCHASES HAVE BEEN MADE WITHOUT CONSENT OR PROPERTY
HAS BEEN ACQUIRED BY CONDEMNATION. 

7.  SEC. 8108 OF REMINGTON'S REV. STATS. OF WASHINGTON, GIVING THE
STATE'S CONSENT TO ACQUISITION OF LANDS BY THE UNITED STATES FOR
PURPOSES NAMED, APPLIES TO ACQUISITION FROM INDIVIDUALS AND
CORPORATIONS, BUT SEMBLE NOT TO ACQUISITIONS FROM THE STATE ITSELF.  P.
205. 

8.  SEC. 8108 OF REMINGTON'S REV. STATS. OF WASHINGTON, WHICH
CONSENTS, IN ACCORDANCE WITH CONST. ART. I, SEC. 9, CL. 17, TO
ACQUISITION OF LANDS BY THE UNITED STATES FOR LOCKS, DAMS, PIERS, ETC.,
AND OTHER NECESSARY STRUCTURES AND PURPOSES REQUIRED IN IMPROVEMENT OF
RIVERS AND HARBORS OF THE STATE, OR FOR SITES OF FORTS AND MAGAZINES,
ARSENALS, DOCKS ETC., "OR OTHER NEEDFUL BUILDINGS" AND CEDES
JURISDICTION IS CONSTRUED BY THE STATE SUPREME COURT AS INAPPLICABLE,
AND AS NOT YIELDING ALL LEGISLATIVE AUTHORITY OF THE STATE, WHERE THE
LAND IS ACQUIRED FOR A PROJECT SUCH AS THE COLUMBIA BASIN PROJECT,
WHICH LOOKS NOT ONLY TO THE IMPROVEMENT OF NAVIGATION BUT ALSO TO THE
DEVELOPMENT OF IRRIGATION AND OF POWER FOR INDUSTRIAL PURPOSES.  HELD: 

(1)  THAT IN VIEW OF THE SCOPE OF THE PROJECT MENTIONED, THIS
CONSTRUCTION CAN NOT BE DEEMED INADMISSIBLE, AND EVEN IF NOT BINDING IT
SHOULD BE ACCORDED MUCH WEIGHT.  P. 206. 

(2)  ASSUMING THAT THE POWER DEVELOPMENT CONTEMPLATED IS INCIDENTAL
TO IMPROVEMENT OF NAVIGATION, RECLAMATION OF ARID AND SEMI-ARID LAND,
ONE OF THE MAIN OBJECTIVES OF THE PROJECT, IS AN ACTIVITY ALWAYS
REGARDED AS CARRYING WITH IT AN APPROPRIATE RECOGNITION OF CONTINUED
STATE JURISDICTION.  ID. 

(3)  THEREFORE THIS STATUTE (ENACTED IN 1891) CAN NOT BE TAKEN AS
CONCLUSIVELY SHOWING AN INTENT TO YIELD EXCLUSIVE JURISDICTION IN SUCH
A CASE; AND IN AS MUCH AS IT APPEARS THAT THE FEDERAL GOVERNMENT DID
NOT INTEND TO ACQUIRE EXCLUSIVE JURISDICTION BUT CONTEMPLATED THE
CONTINUED EXISTENCE OF STATE JURISDICTION CONSISTENT WITH FEDERAL
FUNCTIONS AND INVITED THE COOPERATION OF THE STATE IN PROVIDING AN
APPROPRIATE EXERCISE OF LOCAL AUTHORITY OVER THE TERRITORY EMBRACED IN
THE PROJECT, THE STATE COURT'S CONSTRUCTION IS ACCEPTED.  ID. 

9.  IN ACQUIRING LAND FOR FEDERAL PURPOSES THE GOVERNMENT IS NOT
COMPELLED TO ACCEPT A TRANSFER OF EXCLUSIVE JURISDICTION FROM THE
STATE.  P. 207. 

10.  UNAUTHORIZED ADMINISTRATIVE ACTION BECOMES LEGAL WHEN RATIFIED
BY CONGRESS.  P. 208. 

11.  RATIFICATION OF "ALL CONTRACTS" EXECUTED IN CONNECTION WITH THE
GRAND COULEE DAM PROJECT, PERMITS REFERENCE TO THE CONTRACTS AS PROVING
THE INTENTION, NOT ONLY OF THE FEDERAL OFFICIALS WHO EXECUTED THEM BUT
OF CONGRESS, THAT, CONSISTENTLY WITH THE EXECUTION OF THE PLAN, THE
JURISDICTION OF THE STATE, OVER THE LARGE AREA ACQUIRED, INCLUDING
JURISDICTION OVER CONTRACTORS ENGAGED ON THE PROJECT, SHOULD BE
RETAINED.  P. 209. 

12.  TO INVEST THE UNITED STATES WITH EXCLUSIVE JURISDICTION OVER
TRIBAL INDIAN LANDS IN A STATE A CESSION FROM THE STATE IS ESSENTIAL. 
P. - . 

13.  THE STATE OF WASHINGTON HAD TERRITORIAL JURISDICTION TO TAX THE
RECEIPTS OF FEDERAL CONTRACTORS ON THE LAND ACQUIRED BY THE UNITED
STATES FOR THE GRAND COULEE DAM PROJECT AND THE TAX DOES NOT LAY AN
UNCONSTITUTIONAL BURDEN ON THE FEDERAL GOVERNMENT.  P. 210. 

SILAS MASON CO. ET AL. V. TAX COMMISSION OF WASHINGTON ET AL.* 

*TOGETHER WITH NO. 8, RYAN V. WASHINGTON ET AL., ALSO ON APPEAL FROM
THE SUPREME COURT OF WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

APPEALS FROM DECREES AFFIRMING DECREES OF A SUPERIOR COURT WHICH
SUSTAINED OCCUPATION TAXES LAID ON THE GROSS RECEIPTS ENURING TO THE
APPELLANTS UNDER CONTRACTS WITH THE UNITED STATES FOR CONSTRUCTION WORK
IN THE STATE OF WASHINGTON.  IN THE FIRST CASE INJUNCTIVE RELIEF WAS
DENIED BY THE SUPERIOR COURT.  THE SECOND CASE INCLUDED AN ACTION OR
APPEAL TO RECOVER A TAX PAYMENT, AND A SUIT FOR AN INJUNCTION, BOTH OF
WHICH WERE DISMISSED BY THE SUPERIOR COURT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THESE SUITS WERE BROUGHT TO RESTRAIN THE ENFORCEMENT OF THE
OCCUPATION TAX ACT OF THE STATE OF WASHINGTON (LAWS OF 1933, C. 191, P.
869; SPEC. SESS., 1933, C. 57, P. 157)  FN1  AS APPLIED TO THE GROSS
INCOME RECEIVED BY APPELLANTS UNDER CONTRACTS WITH THE UNITED STATES
FOR WORK PERFORMED IN CONNECTION WITH THE BUILDING OF THE GRAND COULEE
DAM ON THE COLUMBIA RIVER.  FN2  THE SUPREME COURT OF THE STATE
SUSTAINED THE TAX AND AFFIRMED JUDGMENTS DISMISSING THE SUITS.  SILAS
MASON CO. V. STATE TAX COMM'N, 188 WASH. 98; 61 P.(2D) 1269; RYAN V.
STATE, 188 WASH. 115; 61 P.(2D) 1276.  THE CASES COME HERE ON APPEAL. 

THE QUESTIONS ARE (1) WHETHER THE TAX IMPOSES AN UNCONSTITUTIONAL
BURDEN UPON THE FEDERAL GOVERNMENT, AND (2) WHETHER THE AREAS IN WHICH
APPELLANTS' WORK IS PERFORMED ARE WITHIN THE EXCLUSIVE JURISDICTION OF
THE UNITED STATES.  ON REARGUMENT, AND AT THE REQUEST OF THE COURT, THE
VIEWS OF THE GOVERNMENT UPON THESE QUESTIONS WERE PRESENTED.  WITH
RESPECT TO THE FIRST QUESTION, OUR RULING UPHOLDING THE VALIDITY OF A
SIMILAR TAX OF WEST VIRGINIA AS LAID UPON THE GROSS RECEIPTS OF A
CONTRACTOR ENGAGED IN BUILDING LOCKS AND DAMS FOR THE UNITED STATES IS
CONTROLLING.  JAMES V. DRAVO CONTRACTING CO., ANTE, P. 134.  WE PASS TO
THE QUESTION OF TERRITORIAL JURISDICTION. 

1.  THE FOLLOWING FACTS AS TO THE NATURE AND HISTORY OF THE
ENTERPRISE, AS SET FORTH IN APPELLANTS' COMPLAINTS AND SHOWN BY
EVIDENCE AND STIPULATIONS, ARE UNCONTROVERTED:  THE COLUMBIA RIVER,
ABOVE ITS LOWER REACHES, PARTAKES OF THE CHARACTER OF A MOUNTAIN
STREAM, ITS FALL BEING GREAT, ITS CURRENT SWIFT AND ITS COURSE MARKED
AT INTERVALS OF A FEW MILES BY RAPIDS FLOWING OVER AND THROUGH ROCKY
MASSES OF SUCH MAGNITUDE AS TO RENDER NAVIGATION DIFFICULT AND IN MANY
INSTANCES IMPOSSIBLE SAVE BY THE CONSTRUCTION OF CANALS AND LOCKS. 
THERE ARE GREAT ALTERNATIONS IN ITS FLOW, ITS PERIOD OF HIGH WATER
DEPENDING UPON THE MELTING OF SNOW IN THE MOUNTAINS WHERE ITS SOURCES
ARE FOUND.  ITS PRINCIPAL TRIBUTARY IS THE SNAKE RIVER WHICH HAS THE
SAME CHARACTERISTICS.  THROUGH IMPROVEMENTS THAT HAVE BEEN MADE AND ARE
CONTEMPLATED, THE COLUMBIA RIVER IS COMMERCIALLY NAVIGABLE FROM ITS
MOUTH TO THE MOUTH OF THE SNAKE, AND ABOVE THAT POINT THE COLUMBIA IS
NAVIGABLE LOCALLY, FROM POOL TO POOL, TO THE MOUTH OF THE OKANOGAN
RIVER, BUT ALL SUCH NAVIGATION IS DIFFICULT AND NOT COMMERCIALLY
FEASIBLE BECAUSE OF THE PHYSICAL CONDITIONS ABOVE DESCRIBED.  THESE
CHARACTERISTICS, HOWEVER, "RENDER IT AN IDEAL STREAM FOR THE
DEVELOPMENT OF HYDROELECTRIC POWER."  FOR THE MOST PART THE COLUMBIA
RIVER WITHIN THE UNITED STATES FLOWS THROUGH AN ARID COUNTRY, "THE LAND
BEING IMMENSELY PRODUCTIVE AND RICH WHEN PLACED UNDER IRRIGATION, BUT
OF NO VALUE WITHOUT IRRIGATION."  THE COURSE OF THE RIVER FOR THE
GREATER PART OF ITS LENGTH IN THE UNITED STATES LIES WHOLLY WITHIN THE
STATE OF WASHINGTON.  FROM A SHORT DISTANCE BELOW THE MOUTH OF THE
SNAKE, THE COLUMBIA IS THE BOUNDARY BETWEEN THE STATES OF WASHINGTON
AND OREGON. 

FOLLOWING SPORADIC IMPROVEMENTS EXTENDING OVER A NUMBER OF YEARS, THE
CORPS OF ENGINEERS OF THE WAR DEPARTMENT FINALLY MADE AN EXHAUSTIVE
SURVEY, AND IN 1932 THE CHIEF OF ENGINEERS OF THE UNITED STATES ARMY
RECOMMENDED A COMPREHENSIVE PLAN FOR THE DEVELOPMENT OF THE COLUMBIA
RIVER, WHICH TOOK INTO CONSIDERATION THE USE OF ITS WATERS FOR THE
PURPOSES OF NAVIGATION, FLOOD CONTROL, POWER DEVELOPMENT, AND
IRRIGATION.  THE PLAN CONTEMPLATED THE CONSTRUCTION OF TEN DAMS ACROSS
THE RIVER AT VARIOUS POINTS IN WASHINGTON AND WHERE THE RIVER IS THE
BOUNDARY BETWEEN WASHINGTON AND OREGON.  THE UPPERMOST OF THESE DAMS IS
AT THE HEAD OF GRAND COULEE IN WASHINGTON ABOUT 150 MILES BELOW THE
INTERNATIONAL BOUNDARY AND 274 MILES ABOVE THE MOUTH OF THE SNAKE
RIVER.  THE PLAN WAS COMMONLY DESCRIBED AS THE COLUMBIA BASIN PROJECT. 

IN JUNE, 1933, HAROLD L. ICKES WAS APPOINTED ADMINISTRATOR OF PUBLIC
WORKS, AND LATER THE PRESIDENT, UNDER AUTHORITY OF THE NATIONAL
INDUSTRIAL RECOVERY ACT (SECS. 201-203, 48 STAT. 200-205) DIRECTED THE
ADMINISTRATOR TO INCLUDE IN THE PUBLIC WORKS PROGRAM THE GRAND COULEE
DAM AND POWER PLANT.  APPELLANTS STATE THAT THE PROJECT AS FINALLY
RECOMMENDED BY THE WAR DEPARTMENT AND THE DEPARTMENT OF THE INTERIOR
CONTEMPLATED, AMONG OTHER FEATURES, A DAM AT THE GRAND COULEE TO BE 370
FEET HIGH ABOVE LOW WATER (550 FEET HIGH, AS ACTUALLY CONSTRUCTED) AND
4290 FEET LONG ON THE CREST, AND A POWER PLANT TO DEVELOP 2,100,000
HORSE POWER, AT A TOTAL COST OF $392,000,000.  APPELLANTS ADD THAT THIS
IS THE KEY DAM ON THE RIVER AND WILL CREATE A LAKE 150 MILES LONG,
REACHING THE CANADIAN BOUNDARY; THAT OVER FIVE MILLION ACRE FEET OF
STORAGE WILL BECOME AVAILABLE, THE RELEASE OF WHICH WHEN THE FLOW OF
THE RIVER IS AT ITS LOWEST WILL DOUBLE THE PRIME POWER OF THE RIVER
DOWNSTREAM TO THE SNAKE RIVER AND ADD MORE THAN 50 PER CENT. TO THE
POWER OF THE COLUMBIA BELOW THE SNAKE; THAT THE STORAGE WILL HAVE AN
APPRECIABLE EFFECT IN REDUCING FLOODS ON THE WHOLE RIVER AND THAT
"THERE WILL BE 905,500 ACRES OF FIRST CLASS LAND AVAILABLE FOR
IRRIGATION." 

IN 1933, THE LEGISLATURE OF THE STATE OF WASHINGTON CREATED THE
COLUMBIA BASIN COMMISSION TO PROMOTE THE COLUMBIA BASIN PROJECT.  LAWS
OF 1933, C. 81, P. 376; RYAN V. STATE, SUPRA, P. 1277.  FOR THAT
PURPOSE THE COMMISSION OBTAINED AN ALLOCATION OF $377,000 OF THE
EMERGENCY RELIEF FUNDS OF THE STATE.  ON JUNE 30, 1933, THE UNITED
STATES, REPRESENTED BY THE COMMISSIONER OF THE BUREAU OF RECLAMATION,
UNDER THE PROVISIONS OF THE RECLAMATION ACT OF JUNE 17, 1902(32 STAT.
388) AND AMENDATORY AND SUPPLEMENTARY ACTS, MADE A CONTRACT WITH THE
COLUMBIA BASIN COMMISSION BY WHICH THE UNITED STATES AGREED TO
UNDERTAKE TOPOGRAPHIC SURVEYS AND EXPLORATORY WORK AND PREPARE CERTAIN
DESIGNS AND ESTIMATES FOR WHICH THE COLUMBIA BASIN COMMISSION UNDERTOOK
TO PAY WITHIN THE LIMITS OF ITS APPROPRIATION.  RYAN V. STATE, SUPRA,
P. 1278. 

ON NOVEMBER 1, 1933, THE SECRETARY OF THE INTERIOR SIGNED A
MEMORANDUM, ADDRESSED TO HIMSELF AS ADMINISTRATOR OF PUBLIC WORKS, IN
WHICH THE SECRETARY RECOMMENDED THAT THE PROJECT "BE CONSIDERED A
FEDERAL PROJECT TO BE CONSTRUCTED, OPERATED AND MAINTAINED BY THE
BUREAU OF RECLAMATION AND TO BE PAID FOR FROM NET REVENUES DERIVED FROM
THE SALE OF ITS ELECTRIC POWER."  UNDER THE SAME DATE, THE UNITED
STATES, REPRESENTED BY THE SECRETARY OF THE INTERIOR, IN PURSUANCE OF
THE RECLAMATION ACT OF 1902 AND THE NATIONAL INDUSTRIAL RECOVERY ACT,
MADE A FURTHER AGREEMENT WITH THE STATE OF WASHINGTON PROVIDING FOR THE
EXPENDITURE BY THE UNITED STATES, THROUGH THE BUREAU OF RECLAMATION, OF
THE SUM OF $63,000,000 FOR THE CONSTRUCTION OF A DAM AND POWER PLANT AT
THE GRAND COULEE SITE, TOGETHER WITH NECESSARY TRANSMISSION LINES. 
THERE WAS FURTHER PROVISION THAT THE UNITED STATES SHOULD RETAIN TITLE
TO THE DAM AND POWER PLANT UNTIL THE COST OF THE PROJECT, INCLUDING THE
COST OF THE FIRST UNIT DAM AND POWER PLANT, HAD BEEN FULLY REPAID INTO
THE UNITED STATES TREASURY; THAT THE STATE COMMISSION SHOULD ACT AS AN
ADVISORY BOARD IN CONFERENCE WITH OFFICERS OF THE UNITED STATES
CONCERNING THE VARIOUS IMPORTANT QUESTIONS WHICH MIGHT ARISE IN
CONNECTION WITH THE CONSTRUCTION AND USE OF THE DAM, POWER PLANT AND
TRANSMISSION LINES; AND THAT THE STATE SHOULD HAVE AN OPTION TO
PURCHASE THE PERPETUAL RIGHT TO THE ENTIRE POWER OUTPUT OF THE FIRST
UNIT DAM AND POWER PLANT UPON PRESCRIBED CONDITIONS.  RYAN V. STATE,
SUPRA, P. 1278. 

ON DECEMBER 12, 1933, THE SECRETARY OF THE INTERIOR AND ADMINISTRATOR
OF PUBLIC WORKS SIGNED AN AMENDED DECLARATION OF TAKING IN THE CASE OF
UNITED STATES V. CONTINENTAL LAND CO. ET AL., IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON, IN WHICH IT WAS
STATED THAT CERTAIN LANDS AT THE GRAND COULEE DAM SITE TO THE EXTENT OF
840.28 ACRES "ARE HEREBY TAKEN FOR THE USE OF THE UNITED STATES" IN THE
CONSTRUCTION OF A DAM "FOR THE REGULATION AND CONTROL OF THE FLOW OF
THE COLUMBIA RIVER, FOR A STORAGE RESERVOIR FROM THE DAMSITE TO THE
CANADIAN BOUNDARY, FOR THE IMPROVEMENT OF NAVIGATION, FOR FLOOD
CONTROL, FOR HYDRO-ELECTRIC POWER DEVELOPMENT AT THE GRAND COULEE
DAMSITE, FOR THE INCREASE OF POWER DEVELOPMENT DOWN-STREAM, FOR THE
RECLAMATION OF ARID AND SEMI-ARID LANDS, FOR THE DOMESTIC USE OF WATER,
AND FOR THE RELIEF OF UNEMPLOYMENT."  THEREUPON THE UNITED STATES
IMMEDIATELY ACQUIRED TITLE AND POSSESSION OF THE LANDS INVOLVED.  40
U.S.C. 258A.  SHORTLY AFTER, ON JANUARY 4, 1934, THE FIRST ASSISTANT
SECRETARY OF THE INTERIOR GAVE FORMAL NOTICE TO THE COMMISSIONER OF
PUBLIC LANDS OF WASHINGTON OF THE INTENTION OF THE UNITED STATES TO
MAKE EXAMINATIONS AND SURVEYS AND ATTACHED TO THE NOTICE A LIST OF
LANDS OWNED BY THE STATE "OVER AND UPON WHICH THE UNITED STATES
REQUIRES RIGHTS OF WAY FOR CANALS, DITCHES, LATERALS AND SITES FOR
RESERVOIRS AND STRUCTURES APPURTENANT THERETO; AND SUCH ADDITIONAL
RIGHTS OF WAY AND QUANTITIES OF LAND AS MAY BE REQUIRED FOR THE
OPERATION AND MAINTENANCE OF THE COMPLETED WORKS FOR THE SAID PROPOSED
COLUMBIA BASIN PROJECT."  THE NOTICE WAS GIVEN PURSUANT TO THE STATE
STATUTES TO WHICH WE SHALL PRESENTLY REFER.  THE LANDS IN THIS LIST ARE
DESCRIBED AS "BED AND SHORE LANDS OF WASHINGTON STATE" AND "UPLANDS OF
WASHINGTON STATE," AFFECTED BY COLUMBIA BASIN PROJECT. 

IN DECEMBER 1933, THE DEPARTMENT OF THE INTERIOR ENTERED INTO A
CONTRACT WITH DAVID H. RYAN (NO. 8) FOR THE EXCAVATION OF THE "OVER
BURDEN" AT THE DAMSITE.  THAT WORK WAS UPON LAND, ABOVE HIGH WATER
MARK, ALREADY OR ABOUT TO BE ACQUIRED BY THE UNITED STATES.  THE
CONTRACTOR COMPLETED IT IN THE SUMMER OF 1934, MAINTAINING HIS OFFICE
AND LIVING QUARTERS WITHIN THE TERRITORY OF THE GRAND COULEE PROJECT. 
THE CONTRACT PROVIDED THAT THE APPELLANT SHOULD "OBTAIN ALL REQUIRED
LICENSES AND PERMITS," SHOULD FURNISH "COMPENSATION INSURANCE" IN
COMPLIANCE WITH THE LAWS OF THE STATE, AND SHOULD "COMPLY WITH ALL
APPLICABLE PROVISIONS OF FEDERAL, STATE AND MUNICIPAL SAFETY LAWS AND
BUILDING AND CONSTRUCTION CODES."  RYAN V. STATE, SUPRA, P. 1279. 

IN JULY, 1934, A CONTRACT WAS MADE BETWEEN THE UNITED STATES AND
SILAS MASON COMPANY AND OTHERS, APPELLANTS IN NO. 7, FOR THE
CONSTRUCTION OF PART OF THE GRAND COULEE DAM AND POWER PLANT COVERED BY
DESCRIBED ITEMS IN THE SCHEDULE OF SPECIFICATIONS, FOR THE SUM OF
$29,339,301.50.  FN3  THIS CONTRACT, LIKE THAT OF RYAN, REQUIRED THE
CONTRACTOR TO OBTAIN LICENSES AND PERMITS AND TO FURNISH COMPENSATION
INSURANCE IN COMPLIANCE WITH THE WORKMEN'S COMPENSATION LAW OF THE
STATE. 

SUCH A VAST UNDERTAKING NECESSARILY HAD IN VIEW A LARGE NUMBER OF
EMPLOYEES WHO WITH THEIR FAMILIES WOULD REQUIRE THE APPROPRIATE
FACILITIES OF COMMUNITY LIFE.  ACCORDINGLY, THE SPECIFICATIONS PROVIDED
FOR THE ERECTION ON THE TRACT ACQUIRED BY THE GOVERNMENT OF A
"CONTRACTOR'S CAMP," EMBRACING THE VARIOUS BUILDINGS INCIDENT TO THE
WORK AND HOMES FOR THE CONTRACTOR'S EMPLOYEES.  THE CONTRACTOR WAS
REQUIRED, REGARDLESS OF THE APPROVAL OF THE CONTRACTING OFFICER, TO
"COMPLY WITH ALL THE LAWS AND REGULATIONS OF THE STATE OF WASHINGTON OR
ANY AGENCY OR SUBDIVISION THEREOF, WHICH AFFECT THE BUILDING,
MAINTENANCE OR OPERATION" OF THE CAMP.  THE DISCHARGE OF SEWAGE INTO
THE COLUMBIA RIVER WAS TO CONFORM TO THE LAWS AND REGULATIONS OF THE
DEPARTMENT OF HEALTH OF THE STATE.  THE CONTRACTOR WAS TO MAKE ALL
NECESSARY ARRANGEMENTS WITH THE PROPER STATE AND COUNTY AUTHORITIES FOR
SCHOOL FACILITIES AND FOR POLICE PROTECTION, WHICH WITHIN "THE AREA
INVOLVED IN AND SURROUNDING THE CONSTRUCTION WORK" WAS TO BE FURNISHED
BY THE WASHINGTON STATE PATROL IN COOPERATION WITH THE GOVERNMENT.  THE
CONTRACTOR WAS ALSO TO PROVIDE AND MAINTAIN JAIL FACILITIES
SATISFACTORY TO THE WASHINGTON STATE PATROL AND TO COOPERATE WITH IT
AND THE GOVERNMENT IN THE MAINTENANCE OF LAW AND ORDER. 

THE CONTRACTOR'S CAMP HAS DEVELOPED INTO A COMMUNITY CALLED "MASON
CITY."  ON THE OPPOSITE SIDE OF THE RIVER LIES ANOTHER CAMP MAINTAINED
BY THE UNITED STATES FOR THE OFFICES AND RESIDENCES OF ITS ENGINEERS. 
IT APPEARS THAT THERE ARE "TWO REGULARLY FORMED SCHOOL DISTRICTS" IN
THE AREA IN QUESTION, ONE IN THE "ENGINEERS' TOWN" AND ONE IN "MASON
CITY," UNDER THE LAWS OF THE STATE OF WASHINGTON; THAT IN "MASON CITY"
THE POLICEMEN EMPLOYED BY THE CONTRACTOR HAVE BEEN MADE DEPUTY SHERIFFS
OF OKANOGAN COUNTY; THAT THE ATTORNEY FOR THE CONTRACTOR HAS BEEN
APPOINTED A JUSTICE OF THE PEACE, AND ONE OF THE DOCTORS IN THE
HOSPITAL AT THE CAMP HAS BEEN MADE A DEPUTY CORONER, IN THAT COUNTY;
THAT, IN THE FALL OF 1933, ONE WHO WAS OPERATING A BEER PARLOR WITHIN
THE PART OF THE AREA WHICH LIES IN GRANT COUNTY, WITHOUT A PERMIT FROM
THE COUNTY COMMISSIONERS, WAS FINED IN A JUSTICE'S COURT AS PROVIDED IN
THE LOCAL ORDINANCE; THAT THE SHERIFF OF GRANT COUNTY HAS BEEN CALLED
TO THE DAMSITE TO INVESTIGATE INFRACTIONS OF LOCAL LAW.    IN SEPTEMBER
1934, THE DEPARTMENT OF THE INTERIOR MADE A FURTHER CONTRACT WITH
APPELLANT RYAN FOR THE CONSTRUCTION OF A RAILROAD CONNECTING WITH THE
TRACKS OF THE NORTHERN PACIFIC RAILWAY COMPANY AT ODAIR, WASHINGTON,
AND RUNNING TO THE SITE OF THE GRAND COULEE DAM.  THE SOLE PURPOSE OF
THIS RAILROAD WAS TO ASSIST IN THE CONSTRUCTION OF THE DAM AND THE
APPURTENANT WORKS. 

BY THE ACT OF AUGUST 30, 1935, 49 STAT. 1028, 1039, 1040, THE
CONGRESS "VALIDATED AND RATIFIED" ALL THE "CONTRACTS AND AGREEMENTS"
WHICH HAD BEEN EXECUTED IN CONNECTION WITH THE GRAND COULEE DAM. 

2.  NO QUESTION IS PRESENTED AS TO THE CONSTITUTIONAL AUTHORITY OF
CONGRESS TO PROVIDE FOR THIS ENTERPRISE OR TO ACQUIRE THE LANDS
NECESSARY OR APPROPRIATE FOR THAT PURPOSE.  THERE IS NO CONTENTION THAT
THE STATE MAY INTERFERE WITH THE CONDUCT OF THE ENTERPRISE.  THE
QUESTION OF EXCLUSIVE TERRITORIAL JURISDICTION IS DISTINCT.  THAT
QUESTION ASSUMES THE ABSENCE OF ANY INTERFERENCE WITH THE EXERCISE OF
THE FUNCTIONS OF THE FEDERAL GOVERNMENT AND IS WHETHER THE UNITED
STATES HAS ACQUIRED EXCLUSIVE LEGISLATIVE AUTHORITY SO AS TO DEBAR THE
STATE FROM EXERCISING ANY LEGISLATIVE AUTHORITY, INCLUDING ITS TAXING
AND POLICE POWER, IN RELATION TO THE PROPERTY AND ACTIVITIES OF
INDIVIDUALS AND CORPORATIONS WITHIN THE TERRITORY.  THE ACQUISITION OF
TITLE BY THE UNITED STATES IS NOT SUFFICIENT TO EFFECT THAT EXCLUSION. 
IT MUST APPEAR THAT THE STATE, BY CONSENT OR CESSION, HAS TRANSFERRED
TO THE UNITED STATES THAT RESIDUUM OF JURISDICTION WHICH OTHERWISE IT
WOULD BE FREE TO EXERCISE.  SURPLUS TRADING CO. V. COOK, 281 U.S. 647,
650-652; JAMES V. DRAVO CONTRACTING CO., SUPRA.  SEE, ALSO, FORT
LEAVENWORTH R. CO. V. LOWE, 114 U.S. 527, 539; ARLINGTON HOTEL CO. V.
FANT, 278 U.S. 439, 451; UNITED STATES V. UNZEUTA, 281 U.S. 138, 142. 

IN THIS INSTANCE, THE SUPREME COURT OF WASHINGTON HAS HELD THAT THE
STATE HAS NOT YIELDED EXCLUSIVE LEGISLATIVE AUTHORITY TO THE FEDERAL
GOVERNMENT.  RYAN V. STATE, SUPRA.  THAT QUESTION, HOWEVER, INVOLVING
THE EXTENT OF THE JURISDICTION OF THE UNITED STATES, IS NECESSARILY A
FEDERAL QUESTION.  BREWER-ELLIOTT OIL CO. V. UNITED STATES, 260 U.S.
77, 87; UNITED STATES V. UTAH, 283 U.S. 64, 75; BORAX CONSOLIDATED V.
LOS ANGELES, 296 U.S. 10, 22. 

3.  THE QUESTION ARISES WITH RESPECT (A) TO LANDS ACQUIRED BY THE
UNITED STATES FROM THE STATE ITSELF, (B) TO LANDS ACQUIRED BY THE
UNITED STATES FROM INDIVIDUAL OWNERS BY PURCHASE OR CONDEMNATION, (C)
TO INDIAN TRIBAL LANDS. 

LANDS ACQUIRED FROM THE STATE.  THESE CONSIST OF THE RIVER BED AND
SHORE LANDS AND OF CERTAIN UPLANDS INCLUDING "SCHOOL LANDS." 

WHILE THE UNITED STATES HAS PARAMOUNT AUTHORITY OVER THE RIVER FOR
THE PURPOSE OF THE CONTROL AND IMPROVEMENT OF NAVIGATION, THE TITLE TO
THE RIVER BED, AS WELL AS TO THE SHORE LANDS AND SCHOOL LANDS, WAS IN
THE STATE (PORT OF SEATTLE V. OREGON-WASHINGTON R. CO., 255 U.S. 56,
63) AND THE STATE HAD LEGISLATIVE AUTHORITY OVER ALL THIS AREA
CONSISTENT WITH FEDERAL FUNCTIONS.  UNITED STATES V. BEVANS, 3 WHEAT. 
336, 386, 387; STOCKTON V. BALTIMORE & N.Y.R. CO., 32 FED. 9, 18;
HAMBURG AMERICAN S.S. CO. V. GRUBE, 196 U.S. 407, 415; GROMER V.
STANDARD DREDGING CO., 224 U.S. 362, 371, 372.  THE NOTICE TO THE STATE
AUTHORITIES BY THE DEPARTMENT OF THE INTERIOR WITH RESPECT TO THE RIVER
BED, SHORE LANDS AND UPLANDS OWNED BY THE STATE WAS SAID TO BE GIVEN
"PURSUANT TO THE ACT OF CONGRESS OF JUNE 17, 1902(32 STAT. 388) AND
ACTS AMENDATORY THEREOF AND SUPPLEMENTARY THERETO."  43 U.S.C. 371 ET
SEQ. THE NOTICE IS SET FORTH IN THE MARGIN.  FN4  THE REFERENCE IS TO
THE UNITED STATES RECLAMATION ACT.  THAT ACT WAS NOT INTENDED TO
PROVIDE FOR THE ACQUISITION OF EXCLUSIVE FEDERAL JURISDICTION.  THE ACT
ITSELF STATED THE CONTRARY (SEC. 8, 43 U.S.C. 383).  IT DIRECTED THE
SECRETARY OF THE INTERIOR TO PROCEED IN CONFORMITY WITH THE STATE LAWS
IN CARRYING OUT THE PROVISIONS OF THE ACT AND PROVIDED THAT NOTHING
THEREIN CONTAINED SHOULD BE CONSTRUED AS INTERFERING WITH THE LAWS OF
THE STATE RELATING TO THE CONTROL, APPROPRIATION, USE OR DISTRIBUTION
OF WATER USED IN IRRIGATION.  THE ACT HAS BEEN ADMINISTERED IN HARMONY
WITH THIS CONTROLLING PRINCIPLE THAT THE STATE SHOULD NOT BE OUSTED OF
JURISDICTION.  SEE KANSAS V. COLORADO, 206 U.S. 46, 92, 93; NEBRASKA V.
WYOMING, 295 U.S. 40, 42; CALIFORNIA OREGON POWER CO. V. BEAVER CEMENT
CO., 295 U.S. 142, 164. 

THE DEPARTMENT OF THE INTERIOR EXPRESSLY STATED THAT THE NOTICE WAS
GIVEN "PURSUANT TO SEC. 3378 OF PIERCE'S CODE (1929)" WITH RESPECT TO
EXAMINATIONS AND SURVEYS, AND THE LIST OF STATE LANDS "IN PURSUANCE OF
SEC. 3380 OF PIERCE'S CODE (1929)."  THESE ARE SECS. 7410 AND 7412 OF
REMINGTON'S REVISED STATUTES, WHICH WITH RELATED PROVISIONS WERE
ENACTED IN 1905.  LAWS OF WASHINGTON, 1905, P. 180.  THESE PROVISIONS
ARE SET FORTH IN THE MARGIN.  FN5  THEY WERE MANIFESTLY ENACTED TO GIVE
AUTHORITY TO THE UNITED STATES TO ACQUIRE PROPERTY FOR THE PURPOSES OF
IRRIGATION UNDER THE UNITED STATES RECLAMATION ACT AND WITH THE
CORRESPONDING LIMITATIONS.  THUS SEC. 7410(SEC.  3378 OF PIERCE'S CODE)
PROVIDES FOR NOTICE BY THE SECRETARY OF THE INTERIOR TO THE
COMMISSIONER OF PUBLIC LANDS OF THE STATE THAT THE UNITED STATES
PURSUANT TO THE RECLAMATION ACT INTENDS TO MAKE EXAMINATIONS OR SURVEYS
FOR THE UTILIZATION OF SPECIFIED WATERS.  AND SEC. 7412(SEC.  3380 OF
PIERCE'S CODE) CONTEMPLATES THE PROCEEDING UNDER THE RECLAMATION ACT AS
DESCRIBED IN SEC. 7410. 

PROCEEDING.  AS TO APPROPRIATION OF WATER, IT PROVIDES THAT
APPROPRIATION "BY OR ON BEHALF OF THE UNITED STATES SHALL INURE TO THE
UNITED STATES, AND ITS SUCCESSORS IN INTEREST, IN THE SAME MANNER AND
TO THE SAME EXTENT AS THOUGH SAID APPROPRIATION HAD BEEN MADE BY A
PRIVATE PERSON, CORPORATION OR ASSOCIATION."  AS TO ACQUISITION OF
TITLE BY THE UNITED STATES, IT PROVIDES: 

"THE TITLE TO THE BEDS AND SHORES OF ANY NAVIGABLE LAKE OR STREAM
UTILIZED BY THE CONSTRUCTION OF ANY RESERVOIR OR OTHER IRRIGATION WORKS
CREATED OR CONSTRUCTED AS A PART OF SUCH APPROPRIATION HEREINBEFORE IN
THIS SECTION PROVIDED FOR, SHALL VEST IN THE UNITED STATES TO THE
EXTENT NECESSARY FOR THE MAINTENANCE, OPERATION AND CONTROL OF SUCH
RESERVOIR OR OTHER IRRIGATION WORKS." 

NEITHER IN THE STATUTES GOVERNING THE PROCEEDING INITIATED BY THE
SECRETARY OF THE INTERIOR NOR IN THE STATE STATUTE WAS THERE PROVISION
FOR ACQUISITION BY THE UNITED STATES OF EXCLUSIVE LEGISLATIVE AUTHORITY
OVER THE LANDS OF THE STATE TO WHICH TITLE WAS THUS OBTAINED.  THIS IS
TRUE WITH RESPECT TO ALL THE LANDS MENTIONED IN THE SECRETARY'S NOTICE
EMBRACING THE BED OF THE RIVER, THE SHORE LANDS AND THE DESIGNATED
UPLANDS INCLUDING SCHOOL LANDS. 

LANDS ACQUIRED BY PURCHASE OR CONDEMNATION.  APPELLANTS CONTEND THAT
EXCLUSIVE JURISDICTION AS TO THESE LANDS VESTED IPSO FACTO IN THE
FEDERAL GOVERNMENT BY THE OPERATION OF CLAUSE 17, SEC. 8, ARTICLE I, OF
THE FEDERAL CONSTITUTION, WHICH PROVIDES THAT THE CONGRESS SHALL HAVE
POWER "TO EXERCISE EXCLUSIVE LEGISLATION" OVER "ALL PLACES PURCHASED BY
THE CONSENT OF THE LEGISLATURE OF THE STATE IN WHICH THE SAME SHALL BE,
FOR THE ERECTION OF FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, AND OTHER
NEEDFUL BUILDINGS."  CONSIDERING THIS PROVISION IN JAMES V. DRAVO
CONTRACTING CO., SUPRA, WE CONSTRUED THE PHRASE "OTHER NEEDFUL
BUILDINGS" TO EMBRACE LOCKS AND DAMS AND WHATEVER STRUCTURES ARE FOUND
TO BE NECESSARY IN THE PERFORMANCE OF THE FUNCTIONS OF THE FEDERAL
GOVERNMENT.  WE ALSO CONCLUDED THAT CLAUSE 17 SHOULD NOT BE CONSTRUED
AS IMPLYING A STIPULATION THAT THE CONSENT OF THE STATE TO PURCHASES
MUST BE WITHOUT RESERVATIONS.  WE WERE UNABLE TO RECONCILE SUCH AN
IMPLICATION WITH THE FREEDOM OF THE STATE AND ITS ADMITTED AUTHORITY TO
REFUSE OR QUALIFY CESSIONS OF JURISDICTION WHEN PURCHASES HAVE BEEN
MADE WITHOUT CONSENT OR PROPERTY HAS BEEN ACQUIRED BY CONDEMNATION. 

THE STATUTE OF WASHINGTON WHICH IS RELIED UPON AS GRANTING CONSENT
AND CEDING EXCLUSIVE JURISDICTION TO THE FEDERAL GOVERNMENT IS SEC.
8108 OF REMINGTON'S REVISED STATUTES, THE FULL TEXT OF WHICH IS QUOTED
IN THE MARGIN.  FN6  THIS STATUTE GIVES CONSENT TO THE ACQUISITION OF
LANDS BY THE UNITED STATES "FOR THE SITES OF LOCKS, DAMS, PIERS,
BREAKWATERS, KEEPERS' DWELLINGS, AND OTHER NECESSARY STRUCTURES AND
PURPOSES REQUIRED IN THE IMPROVEMENT OF THE RIVERS AND HARBORS OF THIS
STATE, OR BORDERING THEREON, OR FOR THE SITES OF FORTS, MAGAZINES,
ARSENALS, DOCKS, NAVY-YARDS, NAVAL STATIONS, OR OTHER NEEDFUL BUILDINGS
AUTHORIZED BY ANY ACT OF CONGRESS."  THE CONSENT IS SAID TO BE GIVEN IN
ACCORDANCE WITH THE CONSTITUTIONAL PROVISION FOUND IN CLAUSE 17 OF SEC.
8 OF ARTICLE I AND WITH THE ACTS OF CONGRESS IN SUCH CASES MADE AND
PROVIDED. 

THE STATUTE IN TERMS REFERS TO SUCH ACQUISITION "FROM ANY INDIVIDUAL
OR INDIVIDUALS, BODIES POLITIC OR CORPORATE, WITHIN THE BOUNDARIES OR
LIMITS OF THIS STATE."  THIS LANGUAGE IS NOT APT TO DESCRIBE
ACQUISITIONS FROM THE STATE ITSELF.  AND MANY YEARS AGO (1903) THE
SUPREME COURT OF THE STATE SO HELD WITH RESPECT TO THE CORRESPONDING
PROVISIONS OF THE ACTS OF 1890, P. 459, AND 1891, P. 31, EMBODIED IN
SEC. 8108.  STATE EX REL. BUSSELL V. CALLVERT, 33 WASH. 380, 388-390;
74 PAC. 573.  UNDER THAT CONSTRUCTION, THE ABOVE QUOTED PROVISIONS OF
SEC. 8108 WOULD BE INAPPLICABLE TO THE ACQUISITION OF TITLE TO THE
RIVER BED, SHORE LANDS AND UPLANDS OWNED BY THE STATE, APART FROM OUR
CONCLUSIONS IN THE LIGHT OF THE PROCEEDINGS TAKEN UNDER THE UNITED
STATES RECLAMATION ACT AND THE PERTINENT STATE STATUTE. 

WITH RESPECT TO LANDS ACQUIRED FROM PRIVATE OWNERS, THE SUPREME COURT
OF THE STATE HAS HELD IN THE INSTANT CASE THAT THE ENTERPRISE OF THE
FEDERAL GOVERNMENT HAS A REACH WHICH TAKES IT OUTSIDE THE PURVIEW OF
SEC. 8108.  THE PITH OF THE DECISION IS THAT WHILE THE STATUTE
CONTEMPLATED THE BUILDING OF LOCKS AND DAMS AND OTHER STRUCTURES
REQUIRED IN THE IMPROVEMENT OF THE RIVERS AND HARBORS OF THE STATE, IT
DID NOT CONTEMPLATE THE YIELDING BY THE STATE OF ALL LEGISLATIVE
AUTHORITY IN CONNECTION WITH SUCH A PROJECT AS THE COLUMBIA BASIN
PROJECT EMBRACING "THE DEVELOPMENT OF IRRIGATION AND OF POWER FOR
INDUSTRIAL PURPOSES."  THE STATE COURT CONCLUDED "THAT THE PURPOSES OF
THE PROJECT, TAKEN AS A WHOLE, DO NOT FALL EXCLUSIVELY WITHIN ANY OF
THE ENUMERATED CLASSES MENTIONED ABOVE (IN THE STATUTE), SO AS TO GIVE
THE UNITED STATES EXCLUSIVE JURISDICTION OVER THE LANDS, BUT RATHER IN
A CLASS WHERE SEVERAL PURPOSES ARE SO INTERMINGLED AS TO CALL FOR THE
EXERCISE OF JURISDICTION BY BOTH THE FEDERAL GOVERNMENT AND THE STATE,
ACCORDING AS THEIR RESPECTIVE INTERESTS AND DUTIES REQUIRE."  RYAN V.
STATE, SUPRA, P. 1284. 

CONSIDERING THE SCOPE OF THE FEDERAL UNDERTAKING, WE CANNOT SAY THAT
THIS CONSTRUCTION OF SEC. 8108 IS INADMISSIBLE.  THUS IRRIGATION - "THE
RECLAMATION OF ARID AND SEMI-ARID LANDS" - IS AN INTEGRAL PART OF THE
FEDERAL PLAN AND THE RESERVOIRS FOR THE STORAGE OF WATER WERE TO BE
PROVIDED WITH THAT END IN VIEW.  THAT WAS SET FORTH AS ONE OF THE MAIN
OBJECTIVES, AS WELL AS THE DEVELOPMENT OF POWER, IN THE DECLARATION OF
TAKING FILED IN THE FEDERAL COURT IN THE CONDEMNATION PROCEEDINGS, AND
WHATEVER MAY BE SAID OF POWER DEVELOPMENT SO FAR AS IT IS INCIDENTAL TO
THE IMPROVEMENT OF NAVIGATION, THE RECLAMATION OF ARID OR SEMI-ARID
LANDS HAS ALWAYS BEEN REGARDED AS A PROJECT WHICH CARRIED WITH IT AN
APPROPRIATE RECOGNITION OF A CONTINUED STATE JURISDICTION.  KANSAS V.
COLORADO, SUPRA; NEBRASKA V. WYOMING, SUPRA.  WE CANNOT SAY THAT THE
STATE STATUTE, ENACTED IN 1891, MUST BE TAKEN AS CONCLUSIVELY SHOWING
AN INTENT TO YIELD EXCLUSIVE JURISDICTION IN SUCH A CASE.  ASSUMING
THAT BECAUSE OF THE PRESENCE OF THE FEDERAL QUESTION WE ARE AT LIBERTY
TO CONSTRUE THE STATUTE FOR OURSELVES, WE SHOULD, IN HARMONY WITH OUR
PRINCIPLES OF DECISION IN SUCH CASES, GIVE GREAT WEIGHT TO THE VIEWS OF
THE STATE COURT AS TO THE INTENT AND LIMITATIONS OF THE STATE STATUTE
IN GRANTING CONSENT AND CESSION.  SEE FREEPORT WATER CO. V. FREEPORT,
180 U.S. 587, 595, 596; MILWAUKEE ELECTRIC RY. & L. CO. V. RAILROAD
COMMISSION, 238 U.S. 174, 184; PHELPS V. BOARD OF EDUCATION, 300 U.S.
319, 322; DODGE V. BOARD OF EDUCATION, ANTE, P. 74.  WE SHOULD ACCEPT
THAT CONSTRUCTION UNLESS WE ARE SATISFIED THAT IT DOES VIOLENCE TO
FEDERAL RIGHT BASED UPON THE STATUTE, DEFEATING THE REASONABLE
ANTICIPATION AND PURPOSE OF SECURING THROUGH THE OPERATION OF THE
STATUTE AN ESSENTIAL AND EXCLUSIVE LEGISLATIVE AUTHORITY FOR THE
FEDERAL GOVERNMENT. 

NOT ONLY DO WE FIND NO VIOLENCE DONE TO FEDERAL RIGHT OR FRUSTRATION
OF FEDERAL INTENT BY THE STATE'S CONSTRUCTION OF ITS STATUTE, BUT THE
EVIDENCE IS CLEAR THAT THE FEDERAL GOVERNMENT CONTEMPLATED THE
CONTINUED EXISTENCE OF STATE JURISDICTION CONSISTENT WITH FEDERAL
FUNCTIONS AND INVITED THE COOPERATION OF THE STATE IN PROVIDING AN
APPROPRIATE EXERCISE OF LOCAL AUTHORITY OVER THE TERRITORY. 

EVEN IF IT WERE ASSUMED THAT THE STATE STATUTE SHOULD BE CONSTRUED TO
APPLY TO THE FEDERAL ACQUISITIONS HERE INVOLVED, WE SHOULD STILL BE MET
BY THE CONTENTION OF THE GOVERNMENT THAT IT WAS NOT COMPELLED TO
ACCEPT, AND HAS NOT ACCEPTED, A TRANSFER OF EXCLUSIVE JURISDICTION.  AS
SUCH A TRANSFER RESTS UPON A GRANT BY THE STATE, THROUGH CONSENT OR
CESSION, IT FOLLOWS, IN ACCORDANCE WITH FAMILIAR PRINCIPLES APPLICABLE
TO GRANTS, THAT THE GRANT MAY BE ACCEPTED OR DECLINED.  ACCEPTANCE MAY
BE PRESUMED IN THE ABSENCE OF EVIDENCE OF A CONTRARY INTENT, BUT WE
KNOW OF NO CONSTITUTIONAL PRINCIPLE WHICH COMPELS ACCEPTANCE BY THE
UNITED STATES OF AN EXCLUSIVE JURISDICTION CONTRARY TO ITS OWN
CONCEPTION OF ITS INTERESTS.  THE MERE FACT THAT THE GOVERNMENT NEEDS
TITLE TO PROPERTY WITHIN THE BOUNDARIES OF A STATE, WHICH MAY BE
ACQUIRED IRRESPECTIVE OF THE CONSENT OF THE STATE (KOHL V. UNITED
STATES, 91 U.S. 367, 371, 372), DOES NOT NECESSITATE THE ASSUMPTION BY
THE GOVERNMENT OF THE BURDENS INCIDENT TO AN EXCLUSIVE JURISDICTION. 
WE HAVE FREQUENTLY SAID THAT OUR SYSTEM OF GOVERNMENT IS A PRACTICAL
ADJUSTMENT BY WHICH THE NATIONAL AUTHORITY MAY BE MAINTAINED IN ITS
FULL SCOPE WITHOUT UNNECESSARY LOSS OF LOCAL EFFICIENCY.  IN ACQUIRING
PROPERTY, THE FEDERAL FUNCTION IN VIEW MAY BE PERFORMED WITHOUT
DISTURBING THE LOCAL ADMINISTRATION IN MATTERS WHICH MAY STILL
APPROPRIATELY PERTAIN TO STATE AUTHORITY.  IN OUR OPINION IN JAMES V.
DRAVO CONTRACTING CO., SUPRA, WE OBSERVED THAT THE POSSIBLE IMPORTANCE
OF RESERVING TO THE STATE JURISDICTION FOR LOCAL PURPOSES WHICH INVOLVE
NO INTERFERENCE WITH THE PERFORMANCE OF GOVERNMENTAL FUNCTIONS IS
BECOMING MORE AND MORE CLEAR AS THE ACTIVITIES OF THE GOVERNMENT EXPAND
AND LARGE AREAS WITHIN THE STATES ARE ACQUIRED.  AND WE ADDED THAT
THERE APPEARED TO BE NO REASON WHY THE UNITED STATES SHOULD BE
COMPELLED TO ACCEPT EXCLUSIVE JURISDICTION OR THE STATE BE COMPELLED TO
GRANT IT IN GIVING ITS CONSENT TO PURCHASES. 

THE FEDERAL INTENT IN THIS INSTANCE IS CLEARLY SHOWN.  IT IS SHOWN
NOT MERELY BY THE ACTION OF ADMINISTRATIVE OFFICIALS, BUT BY THE
DELIBERATE AND RATIFYING ACTION OF CONGRESS, WHICH GIVES THE FORCE OF
LAW TO THE PRIOR OFFICIAL ACTION EVEN IF UNAUTHORIZED WHEN TAKEN. 
SWAYNE & HOYT V. UNITED STATES, 300 U.S. 297, 301, 302.  AS CONGRESS
VALIDATED AND RATIFIED "ALL CONTRACTS" WHICH HAVE BEEN EXECUTED IN
CONNECTION WITH THE GRAND COULEE DAM PROJECT, WE ARE AT LIBERTY TO
REFER TO THE TERMS OF THESE CONTRACTS AS MANIFESTING THE INTENTION OF
CONGRESS NO LESS THAN THAT OF THE OFFICERS WHO EXECUTED THEM.  THESE
CONTRACTS WITH APPELLANTS WERE MADE IN FULL APPRECIATION OF THE
INEVITABLE CREATION, THROUGH THE CARRYING OUT OF THIS PROJECT, OF A
LARGE LOCAL COMMUNITY WITHIN THE AREA ACQUIRED BY THE UNITED STATES,
WITH RESIDENTS WHOSE NEEDS COULD BE SUITABLY SERVED BY THE
ADMINISTRATION OF THE LAWS OF THE STATE WITHOUT INTERFERING IN ANY WAY
WITH THE EXECUTION OF THE FEDERAL PLAN.  SCHOOL FACILITIES WERE TO BE,
AND HAVE BEEN, PROVIDED BY ARRANGEMENTS WITH THE LOCAL AUTHORITIES. 
POLICE PROTECTION WAS TO BE, AND HAS BEEN, ASSURED BY COOPERATION
WITHIN THE STATE PATROL.  COGNIZANCE OF CRIMES COMMITTED WITHIN THE
AREA HAS BEEN TAKEN BY LOCAL PROSECUTORS AND JUDICIAL OFFICERS.  IT IS
FUTILE TO SAY THAT THESE LOCAL AUTHORITIES BECAME FEDERAL AUTHORITIES
PRO HAC VICE, FOR THE CONTRACTS WHICH HAVE BEEN RATIFIED BY CONGRESS
MANIFESTLY CONTEMPLATED ACTION BY THE LOCAL OFFICERS AS REPRESENTATIVES
OF THE STATE AND AS ACTING IN THE EXERCISE OF STATE JURISDICTION. 

IN PARTICULAR, APPELLANTS' CONTRACTS ASSUMED THAT STATE JURISDICTION
WOULD EXTEND TO ACTIVITIES OF THE CONTRACTORS.  THEY WERE TO OBTAIN ALL
REQUIRED LICENSES AND PERMITS.  COMPENSATION INSURANCE UNDER THE LAWS
OF THE STATE WAS TO BE PROVIDED FOR THEIR EMPLOYEES.  STATE BUILDING
REGULATIONS WERE TO BE OBEYED.  THE RULES OF THE LOCAL DEPARTMENT OF
HEALTH WERE TO BE OBSERVED IN THE DISCHARGE OF SEWAGE INTO THE RIVER. 
WE ARE AT A LOSS TO UNDERSTAND HOW THE CONTINUED JURISDICTION OF THE
STATE WITHOUT CONFLICTING WITH FEDERAL OPERATIONS COULD HAVE BEEN MORE
FULLY RECOGNIZED, OR THE ASSUMPTION OF EXCLUSIVE LEGISLATIVE AUTHORITY
BY THE UNITED STATES MORE EFFECTIVELY DISCLAIMED, THAN BY THE ACTION OF
CONGRESS IN RATIFYING THE PROVISIONS OF THESE CONTRACTS. 

APPELLANTS' ARGUMENT COMES TO THIS - THAT WE MUST NOT ONLY OVERRIDE
THE CONSTRUCTION OF THE STATE STATUTE BY THE STATE COURT BUT THAT WE
MUST CONSTRUE THE STATUTE AS COMPELLING THE FEDERAL GOVERNMENT TO
ASSUME AN EXCLUSIVE LEGISLATIVE AUTHORITY WHICH IT DID NOT NEED, WHICH
IT HAS NOT ACCEPTED OR EXERCISED, AND AGAINST THE BURDEN OF WHICH IT
HAS SOUGHT TO PROTECT ITSELF BY SECURING STATE COOPERATION IN
ACCORDANCE WITH THE EXPRESS AUTHORIZATION OF CONGRESS.  WE FIND NO
WARRANT FOR SUCH ACTION. 

INDIAN TRIBAL LANDS.  WHAT HAS BEEN SAID ALSO DISPOSES OF THE
CONTENTION IN RELATION TO THIS PART OF THE AREA.  APPELLANTS SAY THAT
TITLE WAS ORIGINALLY IN THE UNITED STATES FOR THE BENEFIT OF INDIANS ON
THE COLVILLE RESERVATION.  EXECUTIVE ORDER OF JULY 2, 1872.  WHILE AT A
LATER DATE THE LANDS WERE OPENED FOR ENTRY (ACT OF MARCH 22, 1906, 34
STAT. 80; PROCLAMATION OF THE PRESIDENT, MAY 3, 1916, 39 STAT. 1778) IT
APPEARS THAT THEY WERE WITHDRAWN BEFORE ANY ENTRY WAS MADE.  APPELLANTS
CONCEDE THAT TITLE TO THESE LANDS HAS ALWAYS BEEN IN THE UNITED STATES
AND HENCE COULD NOT HAVE BEEN ACQUIRED BY PURCHASE OR CONDEMNATION. 
BUT WITH RESPECT TO SUCH LANDS EXCLUSIVE LEGISLATIVE AUTHORITY WOULD BE
OBTAINED BY THE UNITED STATES ONLY THROUGH CESSION BY THE STATE. 
SURPLUS TRADING CO. V. COOK, SUPRA, P. 651.  IF THEY MAY BE DEEMED TO
BE WITHIN THE REFERENCE IN SEC. 8108 TO "PUBLIC LAND" WHICH "MAY BE SET
APART BY THE GENERAL GOVERNMENT" FOR THE PURPOSES "BEFORE MENTIONED,"
WE ARE BROUGHT BACK TO THE QUESTIONS ALREADY DISCUSSED AND WE NEED NOT
CONSIDER THE QUESTION WHETHER THESE LANDS HAD IN FACT BEEN SET APART IN
THE PRESCRIBED MANNER. 

OUR CONCLUSION IS THAT THE STATE HAD TERRITORIAL JURISDICTION TO
IMPOSE THE TAX UPON APPELLANTS' RECEIPTS AND THAT THE TAX DOES NOT LAY
AN UNCONSTITUTIONAL BURDEN UPON THE FEDERAL GOVERNMENT. 

THE RESPECTIVE JUDGMENTS ARE AFFIRMED. 

FN1  THE ACT DESCRIBES THE TAX AS LAID "UPON THE PRIVILEGE OF
ENGAGING IN BUSINESS ACTIVITIES."  SECTION 2-A (1) PROVIDES:  "...
THERE IS HEREBY LEVIED AND THERE SHALL BE COLLECTED FROM EVERY PERSON
ENGAGING OR CONTINUING WITHIN THIS STATE IN THE BUSINESS OF RENDERING
OR PERFORMING SERVICES  ...  AN ANNUAL TAX OR EXCISE FOR THE PRIVILEGE
OF ENGAGING IN SUCH BUSINESS  ...  EQUAL TO THE GROSS INCOME OF THE
BUSINESS MULTIPLIED BY FIVE-TENTHS OF ONE PER CENT;...." 

FN2  APPELLANT DAVID H. RYAN, IN NO. 8, ALSO BROUGHT AN ACTION TO
OBTAIN A REFUND OF OCCUPATION TAXES WHICH HE HAD PAID.  THAT ACTION WAS
CONSOLIDATED FOR HEARING IN THE STATE COURTS WITH THE SUIT FOR
INJUNCTION TO RESTRAIN FURTHER COLLECTION. 

FN3  FOR ADMINISTRATIVE PURPOSES AND TO AVOID CONFUSION WITH BUSINESS
OPERATIONS OF THE CONTRACTORS ELSEWHERE, THE CONTRACTORS ORGANIZED THE
APPELLANT MASON-WALSH-ATKINSON-KIER COMPANY, AND TO AVOID OBJECTIONS TO
AN ASSIGNMENT OF THE CONTRACT THEY ENTERED INTO AN AGREEMENT WITH THE
UNITED STATES IN SEPTEMBER, 1934, BY WHICH THE NEW COMPANY WAS
CONSTITUTED THE AGENT OF THE CONTRACTORS FOR THE PROSECUTION OF THE
WORK WITHOUT RELINQUISHMENT OF THEIR OBLIGATIONS. 

FN4              "UNITED STATES DEPARTMENT OF THE INTERIOR

                  OFFICE OF THE SECRETARY, WASHINGTON

                             JAN - 4 1934 

BUREAU OF RECLAMATION 

MAILS AND FILES, JAN 5 1934

                           WASHINGTON, D.C. 

STATE COMMISSIONER OF PUBLIC LANDS,

                         OLYMPIA, WASHINGTON. 

DEAR SIR: 

PLEASE TAKE NOTICE THAT PURSUANT TO THE ACT OF CONGRESS OF JUNE 17,
1902(32 STAT. 388) AND ACTS AMENDATORY THEREOF OR SUPPLEMENTARY
THERETO, THE UNITED STATES INTENDS TO MAKE EXAMINATIONS AND SURVEYS FOR
THE UTILIZATION OF THE WATERS OF COLUMBIA RIVER AND ITS TRIBUTARIES IN
THE DEVELOPMENT OF THE PROPOSED COLUMBIA BASIN PROJECT. 

THE FOREGOING NOTICE IS GIVEN PURSUANT TO SECTION 3378 OF PIERCE'S
CODE (1929). 

PLEASE TAKE FURTHER NOTICE THAT ATTACHED HERETO, IDENTIFIED AS
"EXHIBIT A" AND MADE A PART HEREOF IS A LIST OF LANDS OWNED BY THE
STATE OF WASHINGTON, OVER AND UPON WHICH THE UNITED STATES REQUIRES
RIGHTS OF WAY FOR CANALS, DITCHES, LATERALS AND SITES FOR RESERVOIRS
AND STRUCTURES APPURTENANT THERETO; AND SUCH ADDITIONAL RIGHTS OF WAY
AND QUANTITIES OF LAND AS MAY BE REQUIRED FOR THE OPERATION AND
MAINTENANCE OF THE COMPLETED WORKS FOR THE SAID PROPOSED COLUMBIA BASIN
PROJECT.  PLEASE FILE THIS NOTICE, TOGETHER WITH THE ATTACHED LIST, IN
YOUR OFFICE, AS A RESERVATION FROM SALE OR OTHER DISPOSITION OF SUCH
LANDS, SO DESCRIBED, BY THE STATE OF WASHINGTON. 

THE NOTICE LAST HEREIN GIVEN IS IN PURSUANCE OF SECTION 3380 OF
PIERCE'S CODE (1929). 

VERY TRULY YOURS,

(SGD.)  T. A. WALTERS,

                     FIRST ASSISTANT SECRETARY." 

FN5  "SEC.  7410.  EXEMPTIONS PENDING FEDERAL INVESTIGATION. 
WHENEVER THE SECRETARY OF THE INTERIOR OF THE UNITED STATES, OR ANY
OFFICER OF THE UNITED STATES DULY AUTHORIZED, SHALL NOTIFY THE
COMMISSIONER OF PUBLIC LANDS OF THIS STATE THAT PURSUANT TO THE
PROVISIONS OF THE ACT OF CONGRESS APPROVED JUNE 17, 1902, ENTITLED, 'AN
ACT APPROPRIATING THE RECEIPTS FROM THE SALE AND DISPOSAL OF PUBLIC
LANDS IN CERTAIN STATES AND TERRITORIES TO THE CONSTRUCTION OF
IRRIGATION WORKS FOR THE RECLAMATION OF ARID LANDS,' OR ANY AMENDMENT
OF SAID ACT OR SUBSTITUTE THEREFOR, THE UNITED STATES INTENDS TO MAKE
EXAMINATIONS OR SURVEYS FOR THE UTILIZATION OF CERTAIN SPECIFIED
WATERS, THE WATERS SO DESCRIBED SHALL NOT THEREAFTER BE SUBJECT TO
APPROPRIATION UNDER ANY LAW OF THIS STATE FOR A PERIOD OF ONE YEAR FROM
AND AFTER THE DATE OF THE RECEIPT OF SUCH NOTICE BY SUCH COMMISSIONER
OF PUBLIC LANDS; BUT SUCH NOTICE SHALL NOT IN ANY WISE AFFECT THE
APPROPRIATION OF ANY WATER THERETOFORE IN GOOD FAITH INITIATED UNDER
ANY LAW OF THIS STATE, BUT SUCH APPROPRIATION MAY BE COMPLETED IN
ACCORDANCE WITH THE LAW IN THE SAME MANNER AND TO THE SAME EXTENT AS
THOUGH SUCH NOTICE HAD NOT BEEN GIVEN.  NO ADVERSE CLAIM TO ANY SUCH
WATERS INITIATED SUBSEQUENT TO THE RECEIPT BY THE COMMISSIONER OF
PUBLIC LANDS OF SUCH NOTICE SHALL BE RECOGNIZED, UNDER THE LAWS OF THIS
STATE, EXCEPT AS TO SUCH AMOUNT OF THE WATERS DESCRIBED IN SUCH NOTICE
OR CERTIFICATE HEREINAFTER PROVIDED AS MAY BE FORMALLY RELEASED IN
WRITING BY A DULY AUTHORIZED OFFICER OF THE UNITED STATES.  IF THE SAID
SECRETARY OF THE INTERIOR OR OTHER DULY AUTHORIZED OFFICER OF THE
UNITED STATES SHALL, BEFORE THE EXPIRATION OF SAID PERIOD OF ONE YEAR,
CERTIFY IN WRITING TO THE SAID COMMISSIONER OF PUBLIC LANDS THAT THE
PROJECT CONTEMPLATED IN SUCH NOTICE APPEARS TO BE FEASIBLE AND THAT THE
INVESTIGATION WILL BE MADE IN DETAIL, THE WATERS SPECIFIED IN SUCH
NOTICE SHALL NOT BE SUBJECT TO APPROPRIATION UNDER ANY LAW OF THIS
STATE FOR THE FURTHER PERIOD OF THREE YEARS FOLLOWING THE DATE OR
RECEIPT OF SUCH CERTIFICATE, AND SUCH FURTHER TIME AS THE COMMISSIONER
OF PUBLIC LANDS MAY GRANT, UPON APPLICATION OF THE UNITED STATES OR
SOME ONE OF ITS AUTHORIZED OFFICERS AND NOTICE THEREOF FIRST PUBLISHED
ONCE IN EACH WEEK FOR FOUR CONSECUTIVE WEEKS IN A NEWSPAPER PUBLISHED
IN THE COUNTY WHERE THE WORKS FOR THE UTILIZATION OF SUCH WATERS ARE TO
BE CONSTRUCTED, AND IF SUCH WORKS ARE TO BE IN OR EXTEND INTO TWO OR
MORE COUNTIES, THEN FOR THE SAME PERIOD IN A NEWSPAPER IN EACH OF SUCH
COUNTIES:  PROVIDED, THAT IN CASE SUCH CERTIFICATE SHALL NOT BE FILED
WITH SAID COMMISSIONER OF PUBLIC LANDS WITHIN THE PERIOD OF ONE YEAR
HEREIN LIMITED THEREFOR THE WATERS SPECIFIED IN SUCH NOTICE SHALL,
AFTER THE EXPIRATION OF SAID PERIOD OF ONE YEAR, BECOME UNAFFECTED BY
SUCH NOTICE AND SUBJECT TO APPROPRIATION AS THEY WOULD HAVE BEEN HAD
SUCH NOTICE NEVER BEEN GIVEN:  AND PROVIDED FURTHER, THAT IN CASE SUCH
CERTIFICATE BE FILED WITHIN SAID ONE YEAR AND THE UNITED STATES DOES
NOT AUTHORIZE THE CONSTRUCTION OF WORKS FOR THE UTILIZATION OF SUCH
WATERS WITHIN SAID THREE YEARS AFTER THE FILING OF SAID CERTIFICATE,
THEN THE WATERS SPECIFIED IN SUCH NOTICE AND CERTIFICATE SHALL, AFTER
THE EXPIRATION OF SAID LAST NAMED PERIOD OF THREE YEARS, BECOME
UNAFFECTED BY SUCH NOTICE OR CERTIFICATE AND SUBJECT TO APPROPRIATION
AS THEY WOULD HAVE BEEN HAD SUCH NOTICE NEVER BEEN GIVEN AND SUCH
CERTIFICATE NEVER FILED." 

"SEC. 7411.  APPROPRIATION - TITLE TO BEDS AND SHORES.  WHENEVER SAID
SECRETARY OF THE INTERIOR OR OTHER DULY AUTHORIZED OFFICER OF THE
UNITED STATES SHALL CAUSE TO BE LET A CONTRACT FOR THE CONSTRUCTION OF
ANY IRRIGATION WORKS OR ANY WORKS FOR THE STORAGE OF WATER FOR USE IN
IRRIGATION, OR ANY PORTION OR SECTION THEREOF, FOR WHICH THE WITHDRAWAL
HAS BEEN EFFECTED AS PROVIDED IN SECTION 7410, ANY AUTHORIZED OFFICER
OF THE UNITED STATES, EITHER IN THE NAME OF THE UNITED STATES OR IN
SUCH NAME AS MAY BE DETERMINED BY THE SECRETARY OF THE INTERIOR, MAY
APPROPRIATE, IN BEHALF OF THE UNITED STATES, SO MUCH OF THE
UNAPPROPRIATED WATERS OF THE STATE AS MAY BE REQUIRED FOR THE PROJECT,
OR PROJECTS, FOR WHICH WATER HAS BEEN WITHDRAWN OR RESERVED UNDER THE
PRECEDING SECTION OF THIS ACT, INCLUDING ANY AND ALL DIVISIONS THEREOF,
THERETOFORE CONSTRUCTED, IN WHOLE OR IN PART, BY THE UNITED STATES OR
PROPOSED TO BE THEREAFTER CONSTRUCTED BY THE UNITED STATES, SUCH
APPROPRIATION TO BE MADE, MAINTAINED AND PERFECTED IN THE SAME MANNER
AND TO THE SAME EXTENT AS THOUGH SUCH APPROPRIATION HAD BEEN MADE BY A
PRIVATE PERSON, CORPORATION OR ASSOCIATION, EXCEPT THAT THE DATE OF
PRIORITY AS TO ALL RIGHTS UNDER SUCH APPROPRIATION IN BEHALF OF THE
UNITED STATES SHALL RELATE BACK TO THE DATE OF THE FIRST WITHDRAWAL OR
RESERVATION OF THE WATERS SO APPROPRIATED, AND IN CASE OF FILINGS ON
WATER PREVIOUSLY WITHDRAWN UNDER SAID SECTION 7410, NO PAYMENT OF FEES
WILL BE REQUIRED.  SUCH APPROPRIATION BY OR ON BEHALF OF THE UNITED
STATES SHALL INURE TO THE UNITED STATES, AND ITS SUCCESSORS IN
INTEREST, IN THE SAME MANNER AND TO THE SAME EXTENT AS THOUGH SAID
APPROPRIATION HAD BEEN MADE BY A PRIVATE PERSON, CORPORATION OR
ASSOCIATION.  THE TITLE TO THE BEDS AND SHORES OF ANY NAVIGABLE LAKE OR
STREAM UTILIZED BY THE CONSTRUCTION OF ANY RESERVOIR OR OTHER
IRRIGATION WORKS CREATED OR CONSTRUCTED AS A PART OF SUCH APPROPRIATION
HEREINBEFORE IN THIS SECTION PROVIDED FOR, SHALL VEST IN THE UNITED
STATES TO THE EXTENT NECESSARY FOR THE MAINTENANCE, OPERATION AND
CONTROL OF SUCH RESERVOIR OR OTHER IRRIGATION WORKS."    "SEC. 7412. 
RESERVATION OF NECESSARY LANDS BY UNITED STATES - PROCEDURE.  WHEN THE
NOTICE PROVIDED FOR IN SECTION 7410 SHALL BE GIVEN TO THE COMMISSIONER
OF PUBLIC LANDS THE PROPER OFFICERS OF THE UNITED STATES MAY FILE WITH
THE SAID COMMISSIONER A LIST OF LANDS (INCLUDING IN THE TERM 'LANDS' AS
HERE USED, THE BEDS AND SHORES OF ANY LAKE, RIVER, STREAM, OR OTHER
WATERS) OWNED BY THE STATE, OVER OR UPON WHICH THE UNITED STATES MAY
REQUIRE RIGHTS OF WAY FOR CANALS, DITCHES, OR LATERALS OR SITES FOR
RESERVOIRS AND STRUCTURES THEREFOR OR APPURTENANT THERETO, OR SUCH
ADDITIONAL RIGHTS OF WAY AND QUANTITY OF LAND AS MAY BE REQUIRED FOR
THE OPERATION AND MAINTENANCE OF THE COMPLETED WORKS FOR THE IRRIGATION
PROJECT CONTEMPLATED IN SUCH NOTICE, AND THE FILING OF SUCH LIST SHALL
CONSTITUTE A RESERVATION FROM THE SALE OR OTHER DISPOSAL BY THE STATE
OF SUCH LANDS SO DESCRIBED, WHICH RESERVATION SHALL, UPON THE
COMPLETION OF SUCH WORKS AND UPON THE UNITED STATES BY ITS PROPER
OFFICERS FILING WITH THE COMMISSIONER OF PUBLIC LANDS OF THE STATE A
DESCRIPTION OF SUCH LANDS BY METES AND BOUNDS OR OTHER DEFINITE
DESCRIPTION, RIPEN INTO A GRANT FROM THE STATE TO THE UNITED STATES. 
THE STATE, IN THE DISPOSAL OF LANDS GRANTED FROM THE UNITED STATES TO
THE STATE, SHALL RESERVE FOR THE UNITED STATES RIGHTS OF WAY FOR
DITCHES, CANALS, LATERALS, TELEPHONE AND TRANSMISSION LINES WHICH MAY
BE REQUIRED BY THE UNITED STATES FOR THE CONSTRUCTION, OPERATION AND
MAINTENANCE OF IRRIGATION WORKS." 

FN6  "SEC.  8108.  CONSENT TO ACQUISITION OF CERTAIN RIGHTS BY UNITED
STATES, ETC.  THE CONSENT OF THE STATE OF WASHINGTON BE AND THE SAME IS
HEREBY GIVEN TO THE ACQUISITION BY PURCHASE OR BY CONDEMNATION, UNDER
THE LAWS OF THIS STATE RELATING TO THE APPROPRIATION OF PRIVATE
PROPERTY TO PUBLIC USES, BY THE UNITED STATES OF AMERICA, OR UNDER THE
AUTHORITY OF THE SAME, OF ANY TRACT, PIECE, OR PARCEL OF LAND, FROM ANY
INDIVIDUAL OR INDIVIDUALS, BODIES POLITIC OR CORPORATE, WITHIN THE
BOUNDARIES OR LIMITS OF THIS STATE, FOR THE SITES OF LOCKS, DAMS,
PIERS, BREAKWATERS, KEEPERS' DWELLINGS, AND OTHER NECESSARY STRUCTURES
AND PURPOSES REQUIRED IN THE IMPROVEMENT OF THE RIVERS AND HARBORS OF
THIS STATE, OR BORDERING THEREON, OR FOR THE SITES OF FORTS, MAGAZINES,
ARSENALS, DOCKS, NAVY-YARDS, NAVAL STATIONS, OR OTHER NEEDFUL BUILDINGS
AUTHORIZED BY ANY ACT OF CONGRESS, AND ALL DEEDS, CONVEYANCES OF TITLE
PAPERS FOR THE SAME SHALL BE RECORDED AS IN OTHER CASES, UPON THE LAND
RECORDS OF THE COUNTY IN WHICH THE LAND SO ACQUIRED MAY LIE; AND IN
LIKE MANNER MAY BE RECORDED A SUFFICIENT DESCRIPTION BY METES AND
BOUNDS, COURSES AND DISTANCES, OF ANY TRACT OR TRACTS, LEGAL DIVISIONS
OR SUBDIVISIONS OF ANY PUBLIC LAND BELONGING TO THE UNITED STATES,
WHICH MAY BE SET APART BY THE GENERAL GOVERNMENT FOR ANY OR EITHER OF
THE PURPOSES BEFORE MENTIONED BY AN ORDER, PATENT, OR OTHER OFFICIAL
DOCUMENT OR PAPERS DESCRIBING SUCH LANDS; THE CONSENT HEREIN AND HEREBY
GIVEN BEING IN ACCORDANCE WITH THE SEVENTEENTH CLAUSE OF THE EIGHTH
AND WITH THE ACTS OF CONGRESS IN SUCH CASES MADE AND PROVIDED; AND THE
JURISDICTION OF THIS STATE IS HEREBY CEDED TO THE UNITED STATES OF
AMERICA OVER ALL SUCH LAND OR LANDS AS MAY HAVE BEEN OR MAY BE
HEREAFTER ACQUIRED BY PURCHASE OR BY CONDEMNATION, OR SET APART BY THE
GENERAL GOVERNMENT FOR ANY OR EITHER OF THE PURPOSES BEFORE MENTIONED:
PROVIDED, THAT THIS STATE SHALL RETAIN A CONCURRENT JURISDICTION WITH
THE UNITED STATES IN AND OVER ALL TRACTS SO ACQUIRED OR SET APART AS
AFORESAID, SO FAR AS THAT ALL CIVIL AND CRIMINAL PROCESS THAT MAY ISSUE
UNDER THE AUTHORITY OF THIS STATE AGAINST ANY PERSON OR PERSONS CHARGED
WITH CRIMES COMMITTED, OR FOR ANY CAUSE OF ACTION OR SUIT ACCRUING
WITHOUT THE BOUNDS OF ANY SUCH TRACT, MAY BE EXECUTED THEREIN, IN THE
SAME MANNER AND WITH LIKE EFFECT AS THOUGH THIS ASSENT AND CESSION HAD
NOT BEEN GRANTED." 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE SUTHERLAND, MR. JUSTICE BUTLER
AND MR. JUSTICE ROBERTS DISSENT FOR THE REASONS STATED IN THE
DISSENTING OPINION IN JAMES V. DRAVO CONTRACTING CO., ANTE, P. 161. 
..END :

















BERMAN V. UNITED STATES, 302 U.S. 211 


NO. 26.  ARGUED NOVEMBER 9, 1937.  - DECIDED DECEMBER 6, 1937.  - 88
F.(2D) 645, REVERSED. 


1.  THE SENTENCE IN A CRIMINAL CASE IS THE FINAL JUDGMENT.  P. 212. 

2.  A SENTENCE REMAINS THE FINAL JUDGMENT, AND IS APPEALABLE,
NOTWITHSTANDING A SUSPENSION OF EXECUTION.  P. 212. 

IN CRIMINAL CASES, AS WELL AS CIVIL, THE JUDGMENT IS FINAL FOR THE
PURPOSE OF APPEAL WHEN IT TERMINATES THE LITIGATION ON THE MERITS AND
LEAVES NOTHING TO BE DONE BUT TO ENFORCE BY EXECUTION WHAT HAS BEEN
DETERMINED. 

3.  THE FINALITY OF A SENTENCE AND THE RIGHT TO APPEAL FROM IT ARE
NOT AFFECTED BY PLACING THE CONVICT ON PROBATION.  P. 213. 

4.  DURING THE PENDENCY OF AN APPEAL FROM A SENTENCE, THE DISTRICT
COURT IS WITHOUT JURISDICTION TO MODIFY ITS JUDGMENT BY RESENTENCING
THE PRISONER.  P. 214. 

BERMAN V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 301 U.S. 675, TO REVIEW A JUDGMENT DISMISSING AN APPEAL
FROM A CRIMINAL SENTENCE AND AFFIRMING A LATER ONE IMPOSED AFTER THE
APPEAL WAS TAKEN. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

ON CONVICTION UPON AN INDICTMENT CONTAINING SEVERAL COUNTS FOR USING
THE MAILS TO DEFRAUD (18 U.S.C. 338) AND FOR CONSPIRACY TO THAT END (18
U.S.C. 88), PETITIONER WAS SENTENCED ON EACH COUNT TO SERVE A YEAR AND
A DAY, THE TERMS OF IMPRISONMENT TO RUN CONCURRENTLY.  EXECUTION OF THE
SENTENCE WAS SUSPENDED AND PETITIONER WAS PLACED ON PROBATION FOR TWO
YEARS.  PETITIONER APPEALED FROM THE SENTENCE. 

WHILE THE APPEAL WAS PENDING AND WITHOUT ITS WITHDRAWAL, PETITIONER
FEARING ITS DISMISSAL APPLIED TO THE DISTRICT COURT FOR RESENTENCE. 
THAT COURT REIMPOSED THE PRIOR SENTENCE OF IMPRISONMENT, AGAIN
SUSPENDING ITS EXECUTION, AND ADDED A FINE OF ONE DOLLAR UPON EACH
COUNT.  THE COURT DID NOT VACATE THE PRIOR SENTENCE.  PETITIONER THEN
APPEALED FROM THE SECOND SENTENCE. 

THE CIRCUIT COURT OF APPEALS HELD THAT, BY REASON OF SUSPENSION OF
ITS EXECUTION, THE FIRST SENTENCE WAS INTERLOCUTORY AND DISMISSED THE
FIRST APPEAL.  ASSUMING THAT APPEAL TO BE A NULLITY, THE COURT OF
APPEALS THOUGHT THAT THE DISTRICT COURT HAD POWER TO RESENTENCE; THAT
PETITIONER COULD NOT COMPLAIN OF THE FINE AS IT WAS IMPOSED AT HIS
REQUEST; AND THAT THE SECOND SENTENCE OF IMPRISONMENT, IF TAKEN ALONE,
WAS INTERLOCUTORY.  THE JUDGMENT IMPOSING THE FINE WAS AFFIRMED AND THE
APPEAL FROM THE SECOND SENTENCE OF IMPRISONMENT WAS DISMISSED.  88
F.(2D) 645. 

WE ARE OF THE OPINION THAT THE COURT OF APPEALS ERRED IN DISMISSING
THE FIRST APPEAL AS INTERLOCUTORY.  PETITIONER WAS CONVICTED AND
SENTENCED.  FINAL JUDGMENT IN A CRIMINAL CASE MEANS SENTENCE.  THE
SENTENCE IS THE JUDGMENT.  MILLER V. ADERHOLD, 288 U.S. 206, 210; HILL
V. WAMPLER, 298 U.S. 460, 464.  HERE, THE IMPOSITION OF THE SENTENCE
WAS NOT SUSPENDED, BUT ONLY ITS EXECUTION.  THE SENTENCE WAS NOT
VACATED.  IT STOOD AS A FINAL DETERMINATION OF THE MERITS OF THE
CRIMINAL CHARGE.  TO CREATE FINALITY IT WAS NECESSARY THAT PETITIONER'S
CONVICTION SHOULD BE FOLLOWED BY SENTENCE (HILL V. WAMPLER, SUPRA) BUT
WHEN SO FOLLOWED THE FINALITY OF THE JUDGMENT WAS NOT LOST BECAUSE
EXECUTION WAS SUSPENDED.  IN CRIMINAL CASES, AS WELL AS CIVIL, THE
JUDGMENT IS FINAL FOR THE PURPOSE OF APPEAL "WHEN IT TERMINATES THE
LITIGATION  ...  ON THE MERITS" AND "LEAVES NOTHING TO BE DONE BUT TO
ENFORCE BY EXECUTION WHAT HAS BEEN DETERMINED."  ST. LOUIS, I.M. & S.R.
CO. V. SOUTHERN EXPRESS CO., 108 U.S. 24, 28; UNITED STATES V. PILE,
130 U.S. 280, 283; HEIKE V. UNITED STATES, 217 U.S. 423, 429. 

PETITIONER STANDS A CONVICTED FELON AND UNLESS THE JUDGMENT AGAINST
HIM IS VACATED OR REVERSED HE IS SUBJECT TO ALL THE DISABILITIES
FLOWING FROM SUCH A JUDGMENT.  THE RECORD DISCLOSES THAT PETITIONER IS
A LAWYER AND BY REASON OF HIS CONVICTION HIS LICENSE WAS SUBJECT TO
REVOCATION (AND PETITIONER SAYS THAT HE HAS BEEN DISBARRED) WITHOUT
INQUIRY INTO HIS GUILT OR INNOCENCE.  MATTER OF ACKERSON, 218 APP. DIV.
(N.Y.)  388, 392; 218 N.Y.S. 654.  HIS CIVIL RIGHTS MAY BE DETERMINED
SOLELY BY REFERENCE TO THE JUDGMENT. 

PLACING PETITIONER UPON PROBATION DID NOT AFFECT THE FINALITY OF THE
JUDGMENT.  PROBATION IS CONCERNED WITH REHABILITATION, NOT WITH THE
DETERMINATION OF GUILT.  IT DOES NOT SECURE RECONSIDERATION OF ISSUES
THAT HAVE BEEN DETERMINED OR CHANGE THE JUDGMENT THAT HAS BEEN
RENDERED.  PROBATION OR SUSPENSION OF SENTENCE "COMES AS AN ACT OF
GRACE TO ONE CONVICTED OF A CRIME."  ESCOE V. ZERBST, 295 U.S. 490,
492, 493.  THE CONSIDERATIONS IT INVOLVES ARE ENTIRELY APART FROM ANY
REEXAMINATION OF THE MERITS OF THE LITIGATION.  PROBATION WAS DESIGNED
"TO AID THE REHABILITATION OF A PENITENT OFFENDER; TO TAKE ADVANTAGE OF
AN OPPORTUNITY FOR REFORMATION WHICH ACTUAL SERVICE OF THE SUSPENDED
SENTENCE MIGHT MAKE LESS PROBABLE."  THUS PROBATION CANNOT BE DEMANDED
AS A RIGHT.  "THE DEFENDANT STANDS CONVICTED; HE FACES PUNISHMENT AND
CANNOT INSIST ON TERMS OR STRIKE A BARGAIN."  BURNS V. UNITED STATES,
287 U.S. 216, 220.  BUT IF FINAL JUDGMENT DETERMINING HIS GUILT HAS
BEEN RENDERED, HE STILL HAS THE OPPORTUNITY TO SEEK BY APPEAL A
REVERSAL OF THAT JUDGMENT AND THUS TO SECURE NOT AN OPPORTUNITY TO
REFORM BUT VINDICATION. 

AS THE FIRST SENTENCE WAS A FINAL JUDGMENT AND APPEAL THEREFROM WAS
PROPERLY TAKEN, THE DISTRICT COURT WAS WITHOUT JURISDICTION DURING THE
PENDENCY OF THAT APPEAL TO MODIFY ITS JUDGMENT BY RESENTENCING THE
PRISONER.  DRAPER V. DAVIS, 102 U.S. 370, 371; KEYSER V. FARR, 105 U.S.
265, 266; SPIROU V. UNITED STATES, 24 F.(2D) 796, 797; UNITED STATES V.
RADICE, 40 F.(2D) 445, 446; UNITED STATES V. HABIB, 72 F.(2D) 271. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED SO FAR AS IT
DISMISSED THE FIRST APPEAL AND AFFIRMED THE LATER JUDGMENT IMPOSING THE
FINE, AND THE CAUSE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS
IN CONFORMITY WITH THIS OPINION.  REVERSED. 
..END :






UNITED STATES V. KAPP, 302 U.S. 214 


NO. 97.  ARGUED NOVEMBER 12, 1937.  - DECIDED DECEMBER 6, 1937.  -
REVERSED. 


1.  WITHIN THE MEANING OF THE CRIMINAL APPEALS ACT, AN INDICTMENT FOR
CONSPIRACY (CRIMINAL CODE, SEC. 37) TO COMMIT A SUBSTANTIVE OFFENSE MAY
BE TREATED AS FOUNDED ON THE STATUTE DEFINING THE SUBSTANTIVE OFFENSE. 
P. 216. 

2.  THE DISTRICT COURT SUSTAINED A DEMURRER TO AN INDICTMENT FOR
CONSPIRACY TO VIOLATE THE FALSE CLAIMS ACT (SEC. 35 CRIMINAL CODE),
UPON THE GROUND THAT THAT ACT DOES NOT APPLY TO AN ATTEMPT TO DEFRAUD
THE UNITED STATES BY OBTAINING APPROVAL OF CLAIMS TO PAYMENTS OF MONEY
THROUGH FALSE REPRESENTATIONS, IF THE STATUTE AUTHORIZING SUCH PAYMENTS
IS INVALID.  HELD: 

(1)  A CONSTRUCTION NOT OF THE INDICTMENT BUT OF THE FALSE CLAIMS
ACT.  P. 217. 

(2)  AN INADMISSIBLE CONSTRUCTION.  ID. 

3.  THOSE WHO ATTEMPT TO OBTAIN PAYMENTS FROM THE GOVERNMENT BY FALSE
REPRESENTATIONS ARE ESTOPPED TO DEFEND UPON THE GROUND THAT THE STATUTE
PROVIDING FOR SUCH PAYMENTS HAS BEEN DECLARED UNCONSTITUTIONAL.  P.
218. 

UNITED STATES V. KAPP ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF OKLAHOMA. 

APPEAL FROM A JUDGMENT SUSTAINING A DEMURRER TO AN INDICTMENT AND
DISMISSING THE CAUSE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE COMES HERE UNDER THE CRIMINAL APPEALS ACT.  18 U.S.C. 682. 

THE SECOND COUNT OF AN INDICTMENT CHARGED APPELLEES WITH CONSPIRACY
TO DEFRAUD THE UNITED STATES BY FURNISHING FALSE INFORMATION AND MAKING
FALSE STATEMENTS TO THE SECRETARY OF AGRICULTURE IN ORDER TO SECURE
BENEFIT PAYMENTS UNDER THE AGRICULTURAL ADJUSTMENT ACT OF MAY 12, 1933,
C. 25, 48 STAT. 31; CRIMINAL CODE, SECS. 35, 37; 18 U.S.C., SECS. 80,
88.  THE DISTRICT COURT SUSTAINED A DEMURRER TO THIS COUNT AND THE
GOVERNMENT APPEALS. 

THE CONTENTION OF THE GOVERNMENT IS THAT THE APPELLEES CONSPIRED TO
CHEAT THE UNITED STATES BY SELLING HOGS TO THE GOVERNMENT AT PREMIUM
PRICES THROUGH MISREPRESENTATION AS TO THE IDENTITY OF THE PRODUCERS OF
THE HOGS SOLD AND THE CONTINUED OWNERSHIP BY SUCH PRODUCERS. 
APPELLEES' DEMURRER WENT UPON THE GROUND, AMONG OTHERS, THAT THE
PROVISIONS OF THE STATUTE AND THE REGULATIONS OF THE SECRETARY OF
AGRICULTURE TO WHICH THE COUNT REFERRED ARE VOID (UNITED STATES V.
BUTLER, 297 U.S. 1) AND THAT THE ACTS SET FORTH IN THE INDICTMENT DO
NOT CONSTITUTE AN OFFENSE AGAINST THE LAWS OF THE UNITED STATES. 

THE FALSE CLAIMS STATUTE UNDER WHICH THE PROSECUTION WAS BROUGHT
PENALIZES ONE WHO "FOR THE PURPOSE AND WITH THE INTENT OF CHEATING AND
SWINDLING OR DEFRAUDING THE GOVERNMENT OF THE UNITED STATES  ...  SHALL
KNOWINGLY AND WILLFULLY FALSIFY OR CONCEAL OR COVER UP BY ANY TRICK,
SCHEME, OR DEVICE A MATERIAL FACT, OR MAKE OR CAUSE TO BE MADE ANY
FALSE OR FRAUDULENT STATEMENTS OR REPRESENTATIONS" (CRIMINAL CODE, SEC.
35; 35 STAT. 1095, AS AMENDED, 40 STAT. 1015).  AFTER REFERRING TO THE
STATUTE, THE DISTRICT JUDGE SAID IN HIS OPINION: 

"THE OVERT ACTS CHARGED, WHICH WOULD BE MATERIAL IN THIS COUNT, ARE
THAT HOGS WERE SHIPPED UNDER THE REPRESENTATION BY THE DEFENDANTS THAT
THEY WERE THE HOGS OF VARIOUS PRODUCERS WHEN IN FACT THE HOGS BELONGED
TO ONE OR MORE OF THE DEFENDANTS. 

"THERE IS NO CONTENTION THAT THE HOGS WERE NOT SHIPPED AND THAT THE
BILLS, WHICH WERE MADE TO ARMOUR AND COMPANY AND OTHER PROCESSORS, WERE
NOT CORRECT BILLS, WITH THE EXCEPTION THAT THE HOGS DID NOT ORIGINATE
FROM THE SOURCES REPRESENTED BY THE DEFENDANTS. 

"THIS CEASES TO BE A MATERIAL FACT, IF THE PROVISIONS OF THE
AGRICULTURAL ADJUSTMENT ACT ARE VOID.  IN OTHER WORDS, THE
REPRESENTATIONS, WHICH ARE ALLEGED TO HAVE BEEN MADE, CEASE TO BE
MISREPRESENTATIONS OF MATERIAL FACTS WHEN THE ACT ITSELF FALLS." 

1.  APPELLEES CONTEND THAT IF ANY STATUTE WAS CONSTRUED, IT WAS NOT
THE STATUTE ON WHICH THE INDICTMENT IS FOUNDED AND HENCE THAT THIS
COURT HAS NO JURISDICTION.  THE POINT IS THAT THE INDICTMENT CHARGED A
CONSPIRACY UNDER CRIMINAL CODE, SEC. 37.  BUT THE CONSPIRACY CHARGED IS
ONE TO VIOLATE THE FALSE CLAIMS STATUTE, CRIMINAL CODE, SEC. 35.  IN
SIMILAR CASES THE JURISDICTION OF THIS COURT HAS BEEN SUSTAINED.  THE
STATUTE, AT THE VIOLATION OF WHICH THE CONSPIRACY IS AIMED, HAS BEEN
TREATED AS THE STATUTE UPON WHICH THE INDICTMENT IS FOUNDED WITHIN THE
MEANING OF THE CRIMINAL APPEALS ACT.  UNITED STATES V. BOWMAN, 260 U.S.
94, 95; UNITED STATES V. WALTER, 263 U.S. 15, 16, 17.  SEE, ALSO,
UNITED STATES V. KEITEL, 211 U.S. 370, 387. 

2.  APPELLEES CONTEND THAT THE COURT BELOW CONSTRUED THE INDICTMENT
AND NOT THE STATUTE.  UNITED STATES V. COLGATE & CO., 250 U.S. 300,
306; UNITED STATES V. HASTINGS, 296 U.S. 188, 192.  THE ARGUMENT IS
THAT A CONSPIRACY TO VIOLATE SEC. 35 MUST INVOLVE A PECUNIARY FRAUD. 
UNITED STATES V. COHN, 270 U.S. 339, 345, 346.  IN THAT VIEW APPELLEES
URGE THAT THE COURT BELOW HAS SIMPLY RULED THAT THERE WAS NO PECUNIARY
LOSS UNDER THE FACTS ALLEGED.  BUT THE DISTRICT COURT FOUND NO FLAW IN
THE INDICTMENT AS A PLEADING.  NOR DOES THE COURT APPEAR TO HAVE
CONSIDERED THE QUESTION OF PECUNIARY LOSS.  THE COURT RESTED ITS
DECISION UPON THE POINT THAT THE FACTS ALLEGED IN THE INDICTMENT WITH
RESPECT TO THE IDENTITY OF THE PRODUCERS OF THE HOGS, OR THE SOURCES
FROM WHICH THE HOGS ORIGINATED, HAD CEASED TO BE MATERIAL BECAUSE OF
THE UNCONSTITUTIONALITY OF THE PROVISIONS OF THE AGRICULTURAL
ADJUSTMENT ACT.  THIS DID NOT PURPORT TO BE A CONSTRUCTION OF THE
INDICTMENT BUT A RULING THAT THE INDICTMENT IN VIEW OF THE INVALIDITY
OF THAT ACT FAILED TO STATE AN OFFENSE.  THE SUBSTANCE OF THE DECISION
THUS APPEARS TO BE THAT THE FALSE CLAIMS STATUTE DOES NOT APPLY TO AN
ATTEMPT TO DEFRAUD THE UNITED STATES BY OBTAINING THE APPROVAL OF
CLAIMS AND BENEFIT PAYMENTS THROUGH FALSE REPRESENTATIONS, IF THE
STATUTE PROVIDING FOR SUCH CLAIMS AND PAYMENTS IS FOUND TO BE INVALID. 
THAT IS CLEARLY A CONSTRUCTION OF THE STATUTE.  UNITED STATES V.
PATTEN, 226 U.S. 525, 535; UNITED STATES V. BIRDSALL, 233 U.S. 223,
230. 

3.  SUCH A CONSTRUCTION IS INADMISSIBLE.  IT MIGHT AS WELL BE SAID
THAT ONE COULD EMBEZZLE MONEYS IN THE UNITED STATES TREASURY WITH
IMPUNITY IF IT TURNS OUT THAT THEY WERE COLLECTED IN THE COURSE OF
INVALID TRANSACTIONS.  SEE MADDEN V. UNITED STATES, 80 F.(2D) 672,
674.  APPELLEES WERE NOT INDICTED FOR A CONSPIRACY TO VIOLATE THE
AGRICULTURAL ADJUSTMENT ACT BUT FOR A CONSPIRACY TO VIOLATE THE STATUTE
PROTECTING THE UNITED STATES AGAINST FRAUDS.  IT IS CHEATING THE
GOVERNMENT AT WHICH THE STATUTE AIMS AND CONGRESS WAS ENTITLED TO
PROTECT THE GOVERNMENT AGAINST THOSE WHO WOULD SWINDLE IT REGARDLESS OF
QUESTIONS OF CONSTITUTIONAL AUTHORITY AS TO THE OPERATIONS THAT THE
GOVERNMENT IS CONDUCTING.  SUCH QUESTIONS CANNOT BE RAISED BY THOSE WHO
MAKE FALSE CLAIMS AGAINST THE GOVERNMENT.  SEE LANGER V. UNITED STATES,
76 F.(2D) 817, 824, 825; MADDEN V. UNITED STATES, SUPRA; UNITED STATES
V. HARDING, 65 APP. D.C. 161; 81 F.(2D) 563, 568; UNITED STATES V.
MACDONALD, 10 F.SUPP.  948. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 
..END :




FLEISHER V. UNITED STATES, 302 U.S. 218 


NO. 202.  ARGUED NOVEMBER 15, 1937.  - DECIDED DECEMBER 6, 1937.  - 91
F.(2D) 404, REVERSED. 


1.  REGISTRATION OF STILLS FOR THE PRODUCTION OF DISTILLED SPIRITS
SHOULD BE WITH THE DISTRICT SUPERVISOR OF THE ALCOHOL TAX UNIT IN THE
BUREAU OF INTERNAL REVENUE.  P. 219. 

A COUNT CHARGING CONSPIRACY TO COMMIT THE OFFENSE OF POSSESSING SUCH
STILLS "WITHOUT HAVING THE SAME REGISTERED WITH THE COLLECTOR OF
INTERNAL REVENUE, AS REQUIRED BY LAW," IS THEREFORE BAD.  (CF. REV.
STATS. SEC. 3258; 26 U.S.C. SEC. 1162.) 

2.  WHEN THE FIRST OF SEVERAL COUNTS UPON WHICH CONSECUTIVE SENTENCES
ARE BASED IS DEFECTIVE THE SENTENCES SHOULD BE CORRECTED SO AS TO FIX A
DEFINITE DATE FOR THEIR COMMENCEMENT.  P. 220. 

HARRY FLEISHER ET AL. V. UNITED STATES.* 

*TOGETHER WITH NO. 203, SAM FLEISHER V. UNITED STATES; AND NO. 204,
STEIN V. UNITED STATES, ALSO ON WRITS OF CERTIORARI TO THE CIRCUIT
COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 673, TO REVIEW JUDGMENTS AFFIRMING JUDGMENTS
SENTENCING PETITIONERS AFTER CONVICTION UPON FOUR COUNTS OF A JOINT
INDICTMENT FOR CONSPIRACY. 

PER CURIAM. 

JUDGMENTS OF CONVICTION ON FOUR COUNTS OF AN INDICTMENT CHARGING
CONSPIRACIES TO VIOLATE PROVISIONS OF THE INTERNAL REVENUE LAWS WERE
AFFIRMED BY THE CIRCUIT COURT OF APPEALS.  91 F.(2D) 404.  CERTIORARI
WAS GRANTED, LIMITED TO THE QUESTION WHETHER THE FIRST COUNT OF THE
INDICTMENT STATES AN OFFENSE UNDER FEDERAL LAW. 

THE FIRST COUNT ALLEGED THAT DEFENDANTS FROM OCTOBER 1, 1934, TO THE
DATE OF THE INDICTMENT, OCTOBER 30, 1935, UNLAWFULLY CONSPIRED TO
POSSESS, AND CAUSE TO BE POSSESSED, STILLS AND APPARATUS FOR THE
PRODUCTION OF DISTILLED SPIRITS WITHOUT HAVING THE SAME REGISTERED WITH
THE COLLECTOR OF INTERNAL REVENUE AS REQUIRED BY LAW.  THE GOVERNMENT
CONCEDES THAT UNDER THE APPLICABLE LAW THE CHARGE SHOULD HAVE BEEN THAT
THERE WAS FAILURE TO REGISTER THE STILLS WITH THE DISTRICT SUPERVISOR
OF THE ALCOHOL TAX UNIT IN THE BUREAU OF INTERNAL REVENUE.  THE FIRST
COUNT FAILED TO STATE AN OFFENSE.  ACT OF MARCH 3, 1927, C. 348, 44
STAT. 1381; 5 U.S.C. 281 C; PROHIBITION REORGANIZATION ACT OF MAY 27,
1930, C. 342, 46 STAT. 427; REGULATIONS NO. 3, BUREAU OF INDUSTRIAL
ALCOHOL, TREASURY DEPARTMENT (MARCH 24, 1931), ARTICLE 14; ACT OF MARCH
3, 1933, C. 212, SEC. 16, 47 STAT. 1518; EXECUTIVE ORDER NO. 6639,
MARCH 10, 1934, 5 U.S.C. 132 NOTE; TREASURY DECISION NO. 4432, MAY 10,
1934.  SCOTT V. UNITED STATES, 78 F.(2D) 791; BENTON V. UNITED STATES,
80 F.(2D) 162. 

THE SENTENCE UPON COUNT TWO PROVIDES THAT IT SHALL RUN "FROM AND
AFTER EXPIRATION OF TERM OF IMPRISONMENT IMPOSED ON COUNT ONE."  EACH
OF THE SENTENCES ON THE REMAINING COUNTS RUNS FROM THE EXPIRATION OF
THE TERM OF IMPRISONMENT IMPOSED ON THE PRECEDING COUNT.  IN VIEW OF
THE INVALIDITY OF THE SENTENCE ON COUNT ONE, THE SENTENCES ON THE
REMAINING COUNTS SHOULD BE AMENDED SO AS TO FIX A DEFINITE DATE FOR
THEIR COMMENCEMENT. 

THE JUDGMENTS ON COUNT ONE ARE SEVERALLY REVERSED AND THE CAUSES ARE
REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 
..END :







FORTE V. UNITED STATES, 302 U.S. 220 


NO. 459.  ARGUED NOVEMBER 15, 1937.  - DECIDED DECEMBER 6, 1937. 


1.  A BILL OF EXCEPTIONS AGREED TO BY COUNSEL AND FILED WITH THE CLERK
OF THE DISTRICT COURT WITHIN THE TIME ALLOWED FOR SETTLEMENT BY NO. IX
OF THE CRIMINAL APPEALS RULES, BUT NOT SETTLED AND SIGNED BY THE JUDGE
UNTIL AFTERWARDS, IS NOT SETTLED IN TIME.  P. 223. 

IF THE TRIAL JUDGE IS ABSENT FROM THE DISTRICT, THE RULE PERMITS
SETTLEMENT BY ANY OTHER JUDGE ASSIGNED TO HOLD, OR HOLDING, THE COURT
IN WHICH THE CASE WAS TRIED. 

2.  WHERE THE COURT OF APPEALS DECIDES A CRIMINAL APPEAL FOR THE
APPELLANT UPON THE ASSUMPTION THAT THE BILL OF EXCEPTIONS IS PROPERLY
BEFORE IT, AND THE OBJECTION THAT THE BILL WAS NOT SETTLED IN TIME IS
FIRST MADE BY THE GOVERNMENT'S PETITION FOR REHEARING, THAT COURT,
EXERCISING ITS BROAD AUTHORITY UNDER RULE NO. IV, MAY, IN THE INTEREST
OF JUSTICE, REFUSE TO STRIKE THE BILL OF EXCEPTIONS AND MAY APPROVE THE
SETTLEMENT AND FILING THERETOFORE HAD.  P. 223. 

FORTE V. UNITED STATES. 

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA. 

PER CURIAM. 

THE CASE COMES HERE ON CERTIFIED QUESTIONS.  28 U.S.C. 346. 

APPELLANT WAS INDICTED FOR VIOLATION OF THE NATIONAL MOTOR VEHICLE
THEFT ACT, 41 STAT. 324, 18 U.S.C. 408.  HE WAS CONVICTED, SENTENCED,
AND ON JULY 1, 1936, IN DUE TIME, TOOK AN APPEAL.  ON JULY 20, 1936, HE
FILED AN ASSIGNMENT OF ERRORS AND A DESIGNATION OF RECORD.  ON THAT
DATE, HE ALSO SUBMITTED A BILL OF EXCEPTIONS BY FILING IT, NOT SIGNED
BY THE TRIAL JUDGE, WITH THE CLERK OF THE COURT.  AT THE SAME TIME, HE
GAVE NOTICE OF THAT FILING TO THE UNITED STATES ATTORNEY STATING THAT
HE WOULD SUBMIT THE BILL OF EXCEPTIONS FOR SETTLEMENT.  PRIOR TO JULY
31, 1936, THE BILL OF EXCEPTIONS WAS "AGREED UPON" BY THE UNITED STATES
ATTORNEY AND APPELLANT'S COUNSEL.  ON JULY 31, 1936, THE TRIAL JUDGE
WAS ON VACATION OUTSIDE THE DISTRICT AND WAS NOT TO RETURN UNTIL
SEPTEMBER.  HE SIGNED THE BILL OF EXCEPTIONS ON SEPTEMBER 2, 1936. 
BELOW HIS SIGNATURE APPEARED THE STATEMENT "THE FOREGOING BILL OF
EXCEPTIONS IS SATISFACTORY TO THE GOVERNMENT AND THE DEFENDANT," SIGNED
BY THE ATTORNEYS FOR BOTH PARTIES.  THERE WAS NO EXTENSION OF TIME FOR
THE SETTLEMENT OF THE BILL OF EXCEPTIONS, WHICH, TOGETHER WITH THE
ASSIGNMENT OF ERRORS, WAS TRANSMITTED TO THE CLERK OF THE COURT OF
APPEALS ON SEPTEMBER 9, 1936.  ARGUMENT WAS HAD IN DUE COURSE AND ON
APRIL 5, 1937, THE COURT OF APPEALS DECIDED THAT THE JUDGMENT OF THE
DISTRICT COURT SHOULD BE REVERSED.  THE ERRORS ASSIGNED AND ARGUED ON
THE APPEAL INVOLVED SOLELY THE SUFFICIENCY OF THE EVIDENCE AS SHOWN BY
THE BILL OF EXCEPTIONS. 

THE COURT OF APPEALS GRANTED A MOTION BY THE GOVERNMENT TO STAY THE
MANDATE AND ALSO A MOTION FOR REHEARING "LIMITED TO THE LEGAL EFFECT OF
THE SETTLEMENT OF THE BILL OF EXCEPTIONS ON SEPTEMBER 2, 1936, THE
APPEAL HAVING BEEN PERFECTED ON JULY 1, 1936."  THE GOVERNMENT MOVED
THAT THE BILL OF EXCEPTIONS BE STRICKEN AND THE JUDGMENT OF THE
DISTRICT COURT BE AFFIRMED.  THE COURT OF APPEALS HAS CERTIFIED THE
FOLLOWING QUESTIONS: 

"1.  WHEN, IN A CRIMINAL CASE, A BILL OF EXCEPTIONS HAS, WITHIN
THIRTY DAYS AFTER THE TAKING OF AN APPEAL, BEEN PREPARED, AGREED TO BY
COUNSEL FOR THE UNITED STATES AND THE APPELLANT, AND 'SUBMITTED' BY
FILING THE SAME WITH THE CLERK OF THE DISTRICT COURT, BUT WHEN THE
TRIAL JUDGE DOES NOT SETTLE AND SIGN THE BILL WITHIN SAID THIRTY DAYS,
BUT DOES SETTLE AND SIGN THE SAME THEREAFTER, IS THE BILL OF EXCEPTIONS
PROPERLY SETTLED AND SIGNED? 

"IF QUESTION NO. 1 IS ANSWERED IN THE NEGATIVE, THEN: 

"2.  WHEN, IN A CRIMINAL CASE, A BILL OF EXCEPTIONS NOT SETTLED AND
SIGNED BY THE TRIAL JUDGE WITHIN PROPER TIME, BUT NEVERTHELESS ACTUALLY
SETTLED AND SIGNED BY SAID JUDGE, IS TRANSMITTED BY THE CLERK OF THE
DISTRICT COURT TO THE CLERK OF THE COURT OF APPEALS, TOGETHER WITH THE
ASSIGNMENT OF ERRORS AND OTHER PERTINENT PAPERS, AND WHEN THE COURT OF
APPEALS HEARS THE APPEAL UPON ERRORS ASSIGNED AND ARGUED INVOLVING
SOLELY THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN A VERDICT OF GUILTY,
AND ADJUDGES THAT THE JUDGMENT OF THE DISTRICT COURT BE REVERSED, AND
WHEN THROUGHOUT THE APPEAL THE UNITED STATES RAISES NO QUESTION AS TO
THE VALIDITY OF THE BILL OF EXCEPTIONS, AND WHEN QUESTION AS TO THE
VALIDITY OF THE BILL OF EXCEPTIONS IS FOR THE FIRST TIME RAISED UPON
PETITION FOR REHEARING BY THE UNITED STATES, AND WHEN ON REHEARING
GRANTED MOTION IS MADE BY THE UNITED STATES TO STRIKE THE BILL OF
EXCEPTIONS, MUST THE BILL OF EXCEPTIONS BE STRICKEN? 

"IF QUESTION NO. 2 IS ANSWERED IN THE AFFIRMATIVE, THEN 

"3.  WHEN, IN A CRIMINAL CASE, THE VALIDITY OF THE BILL OF EXCEPTIONS
IS FOR THE FIRST TIME RAISED ON PETITION FOR REHEARING BY THE UNITED
STATES AFTER THE CASE HAS BEEN HEARD AND REVERSED ON APPEAL UPON ERRORS
INVOLVING SOLELY THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN A VERDICT
OF GUILTY, AND WHEN THE COURT OF APPEALS ON REHEARING GRANTED AND
MOTION TO STRIKE HAS STRICKEN THE BILL OF EXCEPTIONS AS NOT SETTLED AND
SIGNED WITHIN PROPER TIME, IS IT WITHIN THE POWER OF THE COURT OF
APPEALS THEN TO MAKE AN ORDER EXTENDING THE TIME FOR SETTLEMENT AND
SIGNING OF THE BILL OF EXCEPTIONS BY THE TRIAL JUDGE IN ORDER THAT THE
CASE MAY BE HEARD ANEW UPON THE MERITS?" 

THE BILL OF EXCEPTIONS WAS NOT SETTLED AND FILED IN TIME.  RULE IX,
CRIMINAL APPEALS RULES.  THE FACT THAT THE TRIAL JUDGE WAS ABSENT FROM
THE DISTRICT WAS NOT AN EXCUSE.  THE CRIMINAL APPEALS RULES PROVIDE IN
THAT CASE FOR SETTLEMENT BY ANY OTHER JUDGE ASSIGNED TO HOLD, OR
HOLDING, THE COURT IN WHICH THE CASE WAS TRIED.  RULE XIII.  BUT
ALTHOUGH THE BILL OF EXCEPTIONS WAS NOT SETTLED AND FILED IN TIME, THE
COURT OF APPEALS, FROM THE TIME OF THE FILING OF THE DUPLICATE NOTICE
OF APPEAL, HAD COMPLETE SUPERVISION AND CONTROL OF THE PROCEEDINGS ON
THE APPEAL, INCLUDING THE PROCEEDINGS RELATING TO THE PREPARATION OF
THE RECORD ON APPEAL.  RULE IV. 

UNDER THE COMPREHENSIVE PROVISIONS OF RULE IV, THE COURT OF APPEALS
MAY VACATE OR MODIFY ANY ORDER MADE BY THE TRIAL JUDGE IN RELATION TO
THE PROSECUTION OF THE APPEAL AND THIS AUTHORITY EXTENDS TO ANY ORDER
FIXING THE TIME FOR THE SETTLEMENT AND FILING OF A BILL OF EXCEPTIONS. 
RAY V. UNITED STATES, 301 U.S. 158, 163, 164.  THE COURT OF APPEALS MAY
EXTEND THE TIME OR SHORTEN THE TIME.  THROUGH ITS SUPERVISION AND
CONTROL IT MAY CORRECT ANY MISCARRIAGE OF JUSTICE IN RESPECT TO THE
SETTLEMENT OF THE BILL OF EXCEPTIONS.  NEITHER PARTY IS REMEDILESS WHEN
SUCH CORRECTIVE ACTION IS REQUIRED.  TO THAT END, AND IN ORDER TO GIVE
A DESIRABLE FLEXIBILITY, THE RULES DO NOT ATTEMPT TO LAY DOWN SPECIFIC
REQUIREMENTS TO MEET VARIOUS SITUATIONS BUT PLACE UPON THE COURT OF
APPEALS FULL RESPONSIBILITY FOR THE EXERCISE OF A REASONABLE CONTROL
OVER ALL THE PROCEEDINGS RELATING TO THE APPEAL.  RAY V. UNITED STATES,
SUPRA. 

IN THIS INSTANCE, HAD THE QUESTION BEEN RAISED IN LIMINE, THE COURT
OF APPEALS WOULD HAVE HAD POWER TO DETERMINE WHAT THE INTERESTS OF
JUSTICE REQUIRED AND IT LOST NONE OF THAT POWER BY REASON OF THE FACT
THAT THE QUESTION WAS NOT BROUGHT TO ITS ATTENTION UNTIL THE COURT HAD
HEARD ARGUMENT AND REACHED A DECISION UPON THE ASSUMPTION THAT THE BILL
OF EXCEPTIONS WAS PROPERLY BEFORE IT.  AS NO QUESTION APPEARS TO HAVE
BEEN RAISED AS TO THE PROPRIETY OR SUFFICIENCY OF THE BILL OF
EXCEPTIONS, APART FROM THE TIME OF SETTLEMENT AND FILING, IT WOULD BE A
MERE IDLE FORM TO EXTEND THE TIME AND RETURN THE BILL OF EXCEPTIONS FOR
RESETTLEMENT ACCORDINGLY, WHICH THE COURT OF APPEALS HAS POWER TO DO,
AND THUS TO HAVE THE SAME BILL OF EXCEPTIONS AGAIN PRESENTED AND THE
CASE HEARD ANEW UPON THE MERITS, AND THE COURT MAY, IN ITS SOUND
DISCRETION REFUSE TO STRIKE THE BILL OF EXCEPTIONS AND APPROVE THE
SETTLEMENT AND FILING HERETOFORE HAD. 

QUESTION NO. 1 IS ANSWERED "NO".  QUESTION NO. 2 IS ANSWERED "NO". 
QUESTION NO. 3 IS NOT ANSWERED.  IT IS SO ORDERED. 
..END :



















FIDELITY & DEPOSIT CO. V. PINK, 302 U.S. 224 


NO. 38.  ARGUED NOVEMBER 17, 18, 1937.  - DECIDED DECEMBER 6, 1937.  -
88 F.(2D) 630, REVERSED. 


1.  STANDARD FORM OF REINSURANCE CONTRACT, PROVIDING FOR INSURANCE
"AGAINST LOSS," AND REQUIRING REINSURER TO PAY ITS SHARE OF ANY LOSS
UNDER THE ORIGINAL INSURANCE, AND OF COSTS &C. "UPON PROOF OF THE
PAYMENT OF SUCH ITEMS BY THE REINSURED, AND UPON DELIVERY TO THE
REINSURER OF COPIES OF ALL ESSENTIAL DOCUMENTS CONCERNED WITH SUCH LOSS
AND COSTS AND THE PAYMENT THEREOF," - HELD TO MAKE PAYMENT OF LOSS BY
REINSURED A CONDITION PRECEDENT TO REINSURER'S LIABILITY.  ALLEMANNIA
INSURANCE CO. V. FIREMAN'S INSURANCE CO., 209 U.S. 326, DISTINGUISHED. 
P. 227. 

2.  LIABILITY UNDER A CONTRACT OF REINSURANCE MUST BE DETERMINED UPON
CONSIDERATION OF THE WORDS EMPLOYED, READ IN THE LIGHT OF ATTENDING
CIRCUMSTANCES.  P. 229. 

3.  ASSUMPTION THAT CHANGE OF LANGUAGE IN A FORM OF REINSURANCE
CONTRACT WAS INTENDED TO IMPOSE DIFFERENT LIABILITY FROM THAT IMPOSED
BY AN EARLIER FORM AS CONSTRUED BY A DECISION OF THIS COURT.  P. 230. 

FIDELITY & DEPOSIT CO. V. PINK, SUPERINTENDENT OF INSURANCE OF NEW
YORK. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 301 U.S. 678, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT, 15 F.SUPP.  715, IN FAVOR OF THE PRESENT RESPONDENT
IN AN ACTION AGAINST THE PETITIONER UPON A CONTRACT OF REINSURANCE. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

IN 1930 SOUTHERN SURETY COMPANY, A NEW YORK CORPORATION, ISSUED TO
JOHN DEMARTINI CO., INC., A FIDELITY INSURANCE BOND AND ON THE SAME DAY
REINSURED HALF OF THE RISK WITH PETITIONER, FIDELITY & DEPOSIT COMPANY
OF MARYLAND.  THE DEMARTINI CO. CLAIMED A LOSS.  WHILE THIS WAS IN
COURSE OF ADJUSTMENT (MARCH, 1932), A NEW YORK COURT ADJUDGED THE
SOUTHERN COMPANY INSOLVENT AND DISSOLVED IT.  RESPONDENT PINK,
SUPERINTENDENT OF INSURANCE FOR NEW YORK, TOOK POSSESSION OF ITS
PROPERTY AND ENTERED UPON LIQUIDATION OF THE BUSINESS. 

HE ALLOWED BUT DID NOT DISCHARGE THE DEMARTINI COMPANY'S CLAIM. 
THEREUPON HE DEMANDED THAT PETITIONER PAY HALF OF IT.  THIS HAVING BEEN
REFUSED HE INSTITUTED THESE PROCEEDINGS IN THE UNITED STATES DISTRICT
COURT TO RECOVER UPON THE REINSURANCE CONTRACT.  JUDGMENT WENT IN HIS
FAVOR; THE CIRCUIT COURT OF APPEALS AFFIRMED; THE MATTER IS HERE UPON
CERTIORARI.  THE FACTS ARE NOT IN DISPUTE. 

THE CONTRACT BETWEEN THE TWO INSURANCE COMPANIES INCORPORATED THE
"STANDARD FORM OF REINSURANCE AGREEMENT" ADOPTED BY THE SURETY
ASSOCIATION OF AMERICA IN 1930.  THIS FORM PROVIDES - 

"IN CONSIDERATION OF THE PREMIUM PAYABLE UNDER SECTION 1 HEREOF
............ HEREINAFTER CALLED THE REINSURER, DOES HEREBY REINSURE
FIDELITY & DEPOSIT COMPANY OF MARYLAND, HEREINAFTER CALLED THE
REINSURED, UNDER BOND NUMBERED ............, TOGETHER WITH ALL RIDERS
ATTACHED THERETO, HEREINAFTER CALLED THE BOND, ISSUED BY THE REINSURED
IN THE PENALTY OF ............ DOLLARS, IN FAVOR OF ............
(OBLIGEE), AND IN BEHALF OF ............ HEREINAFTER CALLED THE
PRINCIPAL, AGAINST LOSS THEREUNDER AND AGAINST COSTS AND EXPENSES, AS
HEREINAFTER DEFINED, AND INTEREST.  A COPY OF THE BOND IS OR MAY BE
ATTACHED HERETO, AND IS HEREBY MADE A PART OF THIS AGREEMENT. 

"THE FOREGOING AGREEMENT IS SUBJECT TO THE FOLLOWING CONDITIONS AND
PROVISIONS:..."  (THESE APPEAR IN FIFTEEN SUCCEEDING SECTIONS.) 

OTHER THINGS - 

"THE REINSURER'S PROPORTIONATE SHARE OF A LOSS UNDER THE BOND, OF
COSTS AND EXPENSES AS HEREINAFTER DEFINED, AND OF INTEREST, SHALL BE
PAID TO THE REINSURED UPON PROOF OF THE PAYMENT OF SUCH ITEMS BY THE
REINSURED, AND UPON DELIVERY TO THE REINSURER OF COPIES OF ALL
ESSENTIAL DOCUMENTS CONCERNED WITH SUCH LOSS AND COSTS AND THE PAYMENT
THEREOF.  THE REINSURED MAY, HOWEVER, GIVE THE REINSURER WRITTEN NOTICE
OF ITS INTENTION TO PAY THE LOSS ON A CERTAIN DATE, AND MAY REQUIRE THE
REINSURER TO HAVE ITS SHARE OF SUCH LOSS IN THE HANDS OF THE REINSURED
BY SUCH DATE: PROVIDED, HOWEVER, THAT THE REINSURER IN ANY EVENT SHALL
HAVE A PERIOD OF FORTY-EIGHT HOURS, AFTER THE RECEIPT OF SUCH WRITTEN
NOTICE FROM THE REINSURED, TO MAIL OR OTHERWISE DESPATCH ITS PAYMENT;
AND PROVIDED FURTHER THAT IN ANY SUCH CASE THE REINSURER, IF IT DESIRES
TO DO SO, MAY PAY ITS SHARE OF THE LOSS BY MEANS OF A CHECK DRAWN IN
FAVOR OF THE OBLIGEE OF THE BOND." 

PETITIONER'S COUNSEL MAINTAIN THAT THE STANDARD FORM PROVIDES FOR
INSURANCE ONLY "AGAINST LOSS"; THAT THE REINSURER THEREUNDER BECOMES
LIABLE ONLY UPON "PROOF OF THE PAYMENT OF SUCH ITEMS BY THE REINSURED,
AND UPON DELIVERY TO THE REINSURER OF COPIES OF ALL ESSENTIAL DOCUMENTS
CONCERNED WITH SUCH LOSS AND COSTS AND THE PAYMENT THEREOF"; THAT
PAYMENT BY THE REINSURED IS A CONDITION PRECEDENT TO THE REINSURER'S
LIABILITY.  SUNDRY PROVISIONS IN THE FORM, INDICATED BELOW, THEY SAY
LEND SUPPORT TO THIS VIEW.  FN1 

RESPONDENT MAINTAINS THAT PROOF OF PAYMENT IS NOT A PREREQUISITE TO
RECOVERY. 

BOTH COURTS BELOW THOUGHT THAT ALLEMANNIA INSURANCE CO. V. FIREMAN'S
INSURANCE CO., 209 U.S. 326(1908), REQUIRED APPROVAL OF RESPONDENT'S
CONTENTION.  THIS WAS ERROR.  THE DEFENSE WAS WELL TAKEN AND SHOULD
HAVE BEEN SUSTAINED. 

WE DO NOT QUESTION THE GENERAL RULES CONCERNING LIABILITY OF
REINSURERS ANNOUNCED IN THE ALLEMANNIA CASE; BUT THE LIABILITY UNDER
ANY WRITTEN CONTRACT MUST BE DETERMINED UPON CONSIDERATION OF THE WORDS
EMPLOYED, READ IN THE LIGHT OF ATTENDING CIRCUMSTANCES. 

HERE THE TWO INSURANCE COMPANIES STOOD UPON AN EQUAL FOOTING; BOTH
WERE EXPERTS IN THE FIELD.  THE LANGUAGE USED DIFFERS MATERIALLY FROM
THAT FOUND IN THE POLICY OF THE ALLEMANNIA COMPANY.  THERE IS NO
AMBIGUITY AND NO CIRCUMSTANCE REQUIRES DISREGARD OF THE ORDINARY
MEANING OF THE LANGUAGE. 

THE 1930 FORM PROVIDES, "THE REINSURER DOES HEREBY REINSURE AGAINST
LOSS."  THE ALLEMANNIA POLICY DECLARED THE COMPANY "HEREBY AGREES TO
REINSURE." 

PETITIONER'S POLICY SAYS - "THE REINSURER'S PROPORTIONATE SHARE OF THE
LOSS  ...  SHALL BE PAID TO THE REINSURED UPON PROOF OF THE PAYMENT OF
SUCH ITEMS BY THE REINSURED AND UPON THE DELIVERY TO THE REINSURER OF
COPIES OF ALL ESSENTIAL DOCUMENTS CONCERNED WITH SUCH LOSS AND THE
PAYMENT THEREOF."  THE ALLEMANNIA POLICY CONTAINED NO EQUIVALENT
TERMS.  IT PROVIDED - "UPON RECEIVING NOTICE OF ANY LOSS OR CLAIM UNDER
ANY CONTRACT HEREUNDER REINSURED, THE SAID REINSURED COMPANY SHALL
PROMPTLY ADVISE THE SAID ALLEMANNIA FIRE INSURANCE COMPANY, AT
PITTSBURG, PENNSYLVANIA, OF THE SAME, AND OF THE DATE AND PROBABLE
AMOUNT OF LOSS OR DAMAGE, AND AFTER SAID REINSURED COMPANY SHALL HAVE
ADJUSTED, ACCEPTED PROOFS OF, OR PAID SUCH LOSS OR DAMAGE, IT SHALL
FORWARD TO THE SAID ALLEMANNIA FIRE INSURANCE COMPANY, AT PITTSBURG,
PENNSYLVANIA, A PROOF OF ITS LOSS AND CLAIM AGAINST THIS COMPANY UPON
BLANKS FURNISHED FOR THAT PURPOSE BY SAID FIREMEN'S INSURANCE COMPANY,
TOGETHER WITH A COPY OF THE ORIGINAL PROOFS AND CLAIM UNDER ITS
CONTRACT REINSURED, AND A COPY OF THE ORIGINAL RECEIPT TAKEN UPON THE
PAYMENT OF SUCH LOSS;..." 

AS THE STANDARD FORM OF 1930 WAS ADOPTED TWENTY YEARS AFTER THE
ALLEMANNIA CASE IT FAIRLY MAY BE ASSUMED THAT THE DISSIMILAR LANGUAGE
EMPLOYED WAS INTENDED TO IMPOSE LIABILITY DIFFERENT FROM THE ONE THERE
FOUND TO EXIST. 

THE JUDGMENT BELOW MUST BE REVERSED.  THE CAUSE WILL BE REMANDED FOR
FURTHER PROCEEDINGS.  REVERSED. 

FN1  INTRODUCTION - "DOES HEREBY REINSURE  ...  AGAINST LOSS." 


"3.  UNLESS OTHERWISE EXPRESSLY AGREED, THE AMOUNT OF LIABILITY
RETAINED BY THE REINSURED AT ITS OWN RISK BOTH WHEN THIS AGREEMENT IS
MADE AND AT THE TIME OF ANY BREACH OF THE BOND RESULTING IN A CLAIM
THEREUNDER SHALL BE: 

"(A)  IF THE BOND BE OTHER THAN A DEPOSITORY BOND OR BLANKET BOND, IN
NO EVENT LESS THAN THE AMOUNT CEDED HEREUNDER, SUCH RETENTION TO BE
CARRIED UNDER THE BOND; OR 

"(B)  IF THE BOND BE A DEPOSITORY BOND, IN NO EVENT LESS THAN THE
AMOUNT CEDED HEREUNDER PLUS THE AMOUNT OF ALL REINSURANCE CEDED BY THE
REINSURED TO THE REINSURER UNDER ANY OTHER DEPOSITORY BOND OR BONDS
ISSUED BY THE REINSURER IN BEHALF OF THE PRINCIPAL AND EFFECTIVE AT THE
TIME OF ANY BREACH OF THE BOND RESULTING IN A CLAIM THEREUNDER, SUCH
RETENTION TO BE CARRIED UNDER ANY DEPOSITORY BOND OR BONDS ISSUED
AND/OR ANY DEPOSITORY REINSURANCE OR REINSURANCES CARRIED BY THE
REINSURED IN BEHALF OF THE PRINCIPAL; OR 

"(C)  IF THE BOND BE A BLANKET BOND, IN NO EVENT LESS THAN THE AMOUNT
CEDED HEREUNDER PLUS THE AMOUNT OF ALL REINSURANCE CEDED BY THE
REINSURED TO THE REINSURER UNDER ANY OTHER BLANKET BOND OR BONDS ISSUED
BY THE REINSURED IN FAVOR OF THE SAME INSURED AND EFFECTIVE AT THE TIME
OF ANY BREACH OF THE BOND RESULTING IN A CLAIM THEREUNDER; SUCH
RETENTION TO BE CARRIED UNDER ANY BLANKET BOND OR BONDS ISSUED AND/OR
ANY BLANKET BOND REINSURANCE OR REINSURANCES CARRIED BY THE REINSURED
IN FAVOR OF THE SAME INSURED.  THE ACTUAL RETAINED LIABILITY OF THE
REINSURED AS AFORESAID SHALL NOT BE MORE REMOTE THAN THAT CEDED TO THE
REINSURER, WHETHER IT BE PRIMARY OR EXCESS OR PARTLY PRIMARY AND PARTLY
EXCESS...." 


     .         .         .      .         . 

"THE REINSURER'S PROPORTIONATE SHARE OF A LOSS UNDER THE BOND, OF
COSTS AND EXPENSES AS HEREINAFTER DEFINED, AND OF INTEREST, SHALL BE
PAID TO THE REINSURED UPON PROOF OF THE PAYMENT OF SUCH ITEMS BY THE
REINSURED, AND UPON DELIVERY TO THE REINSURER OF COPIES OF ALL
ESSENTIAL DOCUMENTS CONCERNED WITH SUCH LOSS AND COSTS AND THE PAYMENT
THEREOF.  THE REINSURED MAY, HOWEVER, GIVE THE REINSURER WRITTEN NOTICE
OF ITS INTENTION TO PAY THE LOSS ON A CERTAIN DATE, AND MAY REQUIRE THE
REINSURER TO HAVE ITS SHARE OF SUCH LOSS IN THE HANDS OF THE REINSURED
BY SUCH DATE: PROVIDED, HOWEVER, THAT THE REINSURER IN ANY EVENT SHALL
HAVE A PERIOD OF FORTY-EIGHT HOURS, AFTER THE RECEIPT OF SUCH WRITTEN
NOTICE FROM THE REINSURED, TO MAIL OR OTHERWISE DESPATCH ITS PAYMENT;
AND PROVIDED FURTHER THAT IN ANY SUCH CASE THE REINSURER, IF IT DESIRES
TO DO SO, MAY PAY ITS SHARE OF THE LOSS BY MEANS OF A CHECK DRAWN IN
FAVOR OF THE OBLIGEE OF THE BOND. 

"THE REINSURER MAY INSPECT THE ORIGINAL DOCUMENTS RELATING TO CLAIMS
AND LOSSES UNDER THE BOND IN THE POSSESSION OF THE REINSURED. 

"THE TERM COSTS AND EXPENSES SHALL MEAN ALL EXPENDITURES MADE IN
INVESTIGATING AND SETTLING ANY CLAIM UNDER THE BOND; ALL EXPENDITURES
MADE IN INVESTIGATING, SETTLING, OR DEFENDING, OR ATTEMPTING TO DEFEND,
ANY SUIT OR PROCEEDING BASED UPON THE BOND; ALL EXPENDITURES MADE IN
PROCURING OR ATTEMPTING TO PROCURE RESTITUTION OR RECOVERY ON ACCOUNT
OF ANY LOSS, COSTS, OR EXPENSES; AND ALL EXPENDITURES MADE IN
PROSECUTING OR ATTEMPTING TO PROSECUTE ANY PERSON CAUSING A LOSS UNDER
THE BOND." 


"THE REINSURER SHALL BE ENTITLED TO SHARE WITH THE REINSURED, IN THE
PROPORTION DEFINED IN SECTION 2 HEREOF, ANY COLLATERAL SECURITY OR
INDEMNITY HELD BY THE REINSURED  ..." 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CAUSE. 
..END :










ALUMINUM CO. V. UNITED STATES, 302 U.S. 230 


NO. 281.  ARGUED NOVEMBER 8, 9, 1937.  - DECIDED DECEMBER 6, 1937.  -
AFFIRMED. 


AN EARLIER CONSENT DECREE AGAINST A CORPORATION IN A SUIT BY THE
GOVERNMENT UNDER THE ANTITRUST LAWS HELD NOT INCONSISTENT WITH
PROSECUTION OF A LATER SUIT UNDER THOSE LAWS IN ANOTHER DISTRICT
DIFFERING SUBSTANTIALLY IN SUBJECT MATTER, PARTIES, ISSUES AND RELIEF
SOUGHT.  P. 232. 

ALUMINUM COMPANY OF AMERICA V. UNITED STATES. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF PENNSYLVANIA. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, 20 F.SUPP. 
608, DENYING A PETITION FOR AN INJUNCTION. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL BRINGS UP A FINAL DECREE OF THE DISTRICT COURT, WESTERN
DISTRICT OF PENNSYLVANIA, THREE JUDGES SITTING, WHICH VACATED A
PRELIMINARY INJUNCTION AND REFUSED TO RESTRAIN LAW OFFICERS OF THE
UNITED STATES FROM CONDUCTING A PROCEEDING AGAINST APPELLANT IN ANOTHER
DISTRICT. 

JUNE 9, 1912, IN THE PRESENT CAUSE - "PENNSYLVANIA SUIT" - WHEN
APPELLANT WAS THE ONLY DEFENDANT, A CONSENT DECREE CANCELLED CERTAIN
RESTRICTIVE PROVISIONS OF DESIGNATED CONTRACTS AND FORBADE FUTURE
VIOLATIONS OF THE ANTITRUST LAWS BY IT, ITS OFFICERS, AGENTS AND
REPRESENTATIVES.  WITH CERTAIN MODIFICATIONS (1922) PRESENTLY
UNIMPORTANT THIS DECREE REMAINS IN FORCE. 

APRIL 23, 1937, THE UNITED STATES THROUGH THEIR LAW OFFICERS,
DEFENDANTS HERE, INSTITUTED A PROCEEDING IN THE SOUTHERN DISTRICT OF
NEW YORK - "NEW YORK SUIT" - WHEREIN THE APPELLANT, ITS OFFICERS,
AGENTS, STOCKHOLDERS AND OTHERS (SIXTY-THREE IN ALL), WERE NAMED AS
DEFENDANTS.  ALL OF THESE WERE CHARGED WITH VIOLATING THE ANTITRUST
LAWS AND APPROPRIATE RELIEF THROUGH INJUNCTIONS, DISSOLUTION OF
APPELLANT, REARRANGEMENT OF ITS PROPERTIES, ETC., WAS ASKED. 

APRIL 29, 1937, IN THE "PENNSYLVANIA SUIT" APPELLANT ASKED AND THE
DISTRICT COURT ENTERED AN EX PARTE ORDER DIRECTING THE LAW OFFICERS
CONCERNED WITH THE NEW YORK SUIT TO APPEAR AS DEFENDANTS.  IT THEN
FILED THE PETITION NOW BEFORE US WHEREIN IT PRAYED FOR AN INJUNCTION
RESTRAINING THESE OFFICERS FROM PROCEEDING FURTHER IN NEW YORK AGAINST
IT, ITS WHOLLY OWNED SUBSIDIARIES, OFFICERS AND DIRECTORS. 

THE PETITION CHARGED THAT PROSECUTION OF THE LATER SUIT WOULD SUBJECT
APPELLANT TO THE PERIL OF CONCURRENT DECREES ON THE SAME SUBJECT MATTER
BY TWO COURTS; ALSO THAT THERE WAS THE POSSIBILITY OF CONFLICTING
DECREES AND UNSEEMLY CONFLICT.  THE PRAYER FOR RELIEF RESTED
ESSENTIALLY UPON THE ASSERTION THAT THE SUIT EMBRACED SUBJECT MATTERS
AND ISSUES SUBSTANTIALLY IDENTICAL WITH THOSE PREVIOUSLY PRESENTED AND
ADJUDICATED BY THE CONSENT DECREE OF 1912. 

THE LAW OFFICERS APPEARED SPECIALLY AND ANSWERED; THE ATTORNEY
GENERAL FILED AN EXPEDITING CERTIFICATE UNDER THE ACT OF FEBRUARY 11,
1903, AS AMENDED, 15 U.S.C. 28, 29; A COURT OF THREE JUDGES ASSEMBLED,
HEARD EVIDENCE, MADE FINDINGS OF FACT AND DENIED RELIEF.  ERRORS WERE
ASSIGNED; THIS APPEAL FOLLOWED. 

PLAINLY, AND THERE IS NO SUGGESTION TO THE CONTRARY, APPELLANT CANNOT
SUCCEED UNLESS THE PENNSYLVANIA AND NEW YORK SUITS ARE SUBSTANTIALLY
IDENTICAL IN SUBJECT MATTER AND ISSUES.  IT SAYS THAT COMPARISON OF THE
PETITIONS IN THE TWO CAUSES REVEALS THIS FACT.  ALSO THAT COMPARISON OF
THE PETITION IN THE LATER SUIT WITH THE PROHIBITIONS OF THE 1912
CONSENT DECREE SHOWS THE ALLEGED IDENTITY, SINCE EACH CHARGING
PARAGRAPH OF THE PETITION SETS UP VIOLATIONS OF THE ANTITRUST LAWS
INHIBITED BY THE DECREE. 

ON THE OTHER HAND, COUNSEL FOR THE UNITED STATES SUBMIT THAT THE TWO
SUITS DIFFER IN SUBSTANTIAL RESPECTS - DEFENDANTS, CHARGES AND RELIEF
PRAYED. 

THE COURT BELOW FOUND:  "THE SUBJECT MATTER, PARTIES, ISSUES AND
RELIEF SOUGHT IN THE NEW YORK SUIT DIFFER SUBSTANTIALLY FROM THOSE IN
THE 1912 SUIT.  THE NEW YORK SUIT DOES NOT ATTACK THE AFFIRMATIVE
PROVISIONS OF THE 1912 DECREE OR SEEK TO REVERSE ANY ACTION TAKEN BY
THE DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA IN THE SUIT
IN 1912.  THE NEW YORK SUIT DOES NOT SUBJECT ALUMINUM COMPANY TO THE
PERIL OF TWO CONFLICTING DECREES.  ALUMINUM COMPANY WILL NOT SUFFER
IRREPARABLE INJURY BY BEING COMPELLED TO DEFEND THE SUIT IN THE
SOUTHERN DISTRICT OF NEW YORK...."  IT CONCLUDED THAT THE TWO SUITS
WERE DISSIMILAR IN RESPECT OF PARTIES DEFENDANT, SUBJECT MATTER, ISSUES
AND RELIEF SOUGHT, AND THAT NO BASIS FOR AN INJUNCTION HAD BEEN SHOWN. 

WE HAVE HEARD COUNSEL, EXAMINED THE RECORD AND BRIEFS, AND ARE UNABLE
TO SAY THAT THE COURT BELOW ERRED EITHER IN RESPECT OF ITS FINDINGS OR
CONCLUSION.  THE FINDINGS ARE ADEQUATELY SUPPORTED AND THE CONCLUSION
REACHED, WE THINK, IS PROPER.  FOR US AGAIN TO ANALYZE THE PLEADINGS,
EVIDENCE AND DECREES AND POINT OUT THE DIFFERENCES AND NECESSARY
INFERENCES WOULD SERVE NO USEFUL PURPOSE.  THIS WAS ADEQUATELY DONE
BELOW. 

THE CHALLENGED DECREE MUST BE AFFIRMED. 

THE CHIEF JUSTICE AND MR. JUSTICE STONE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CAUSE. 
..END :

















PHILLIPS-JONES CORP. V. PARMLEY, 302 U.S. 233 


NO. 45.  ARGUED NOVEMBER 19, 1937.  - DECIDED DECEMBER 6, 1937.  - 88
F.(2D) 958, REVERSED. 


1.  A STOCKHOLDER WHO HAS RECEIVED HIS PRO RATA SHARE OF THE CORPORATE
ASSETS UPON DISSOLUTION OF THE CORPORATION AND HAS BEEN COMPELLED BY
ASSESSMENT UNDER SEC. 280(A)(1) OF THE REVENUE ACT OF 1926 TO PAY THE
WHOLE OF INCOME AND PROFITS TAXES OWED BY THE CORPORATION, IS ENTITLED
TO CONTRIBUTION FROM HIS CO-STOCKHOLDERS WHO HAVE NOT BEEN ASSESSED FOR
THE TAXES, AND MAY MAINTAIN A BILL THEREFOR.  P. 235. 

2.  THE LIABILITY OF THE CO-STOCKHOLDERS TO CONTRIBUTE ARISES UNDER
THE GENERAL LAW; IT IS NOT DEPENDENT UPON THE MAKING OF AN ASSESSMENT
AGAINST THEM UNDER SEC. 280.  P. 236. 

PHILLIPS-JONES CORPORATION ET AL. V. PARMLEY, EXECUTRIX, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 301 U.S. 680, TO REVIEW A JUDGMENT AFFIRMING A DECREE
DISMISSING A BILL FOR CONTRIBUTION. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION FOR DECISION IS THE STOCKHOLDER'S RIGHT TO
CONTRIBUTION. 

IN 1919, THE COOMBS GARMENT COMPANY, A PENNSYLVANIA CORPORATION,
WOUND UP ITS AFFAIRS AND DISTRIBUTED ITS ASSETS RATABLY AMONG ITS
ELEVEN STOCKHOLDERS.  IN 1924 AND 1925, THE COMMISSIONER OF INTERNAL
REVENUE ASSESSED AGAINST THE COMPANY ADDITIONAL INCOME AND PROFITS
TAXES FOR THE YEARS 1918 AND 1919.  TO THE EXTENT OF $9,306.36 THESE
TAXES REMAINED UNPAID.  I. L. PHILLIPS, A STOCKHOLDER RESIDENT IN NEW
YORK CITY, HAD RECEIVED IN 1919 LIQUIDATING DIVIDENDS IN EXCESS OF THAT
AMOUNT.  IN 1926, THE COMMISSIONER NOTIFIED PHILLIPS THAT IT WAS
PROPOSED TO ASSESS AGAINST HIM AS TRANSFEREE OF THE CORPORATION'S
ASSETS THIS SUM OF $9,306.36, PURSUANT TO SEC. 280(A)(1) OF THE REVENUE
ACT OF 1926(C. 27, 44 STAT. 9, 61).  NO NOTICE OF THE DEFICIENCY WAS
SENT BY THE COMMISSIONER TO ANY OF THE OTHER STOCKHOLDERS; NO
ASSESSMENT WAS MADE AGAINST ANY OF THEM; AND NO PROCEEDING WAS
INSTITUTED BY HIM AGAINST ANY OF THEM. 

PHILLIPS HAVING DIED, HIS EXECUTORS CONTESTED THE DEFICIENCY ASSESSED
AGAINST THE COMPANY AND BOTH THE VALIDITY AND THE AMOUNT OF THE
ASSESSMENT MADE AGAINST HIM, INSISTING, AMONG OTHER THINGS, THAT IN NO
EVENT COULD PHILLIPS' ESTATE BE HELD LIABLE FOR MORE THAN HIS PRO RATA
PORTION OF THE UNPAID TAX OF THE COMPANY.  THE COMMISSIONER ADHERING TO
HIS DETERMINATION, THE EXECUTORS SOUGHT A REVIEW BY THE BOARD OF TAX
APPEALS.  IT HELD PHILLIPS' ESTATE LIABLE FOR THE FULL AMOUNT.  15
B.T.A. 1218.  THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT AFFIRMED THAT JUDGMENT, 42 F.(2D) 177.  AND, IN PHILLIPS V.
COMMISSIONER, 283 U.S. 589, WE AFFIRMED THE JUDGMENT OF THAT COURT. 

THE PHILLIPS-JONES CORPORATION, WHICH WAS THE REAL OWNER OF THE STOCK
STANDING IN PHILLIPS' NAME, PAID THE JUDGMENT AND THE EXPENSES OF THE
LITIGATION.  THEN IT AND PHILLIPS' EXECUTORS BROUGHT, IN THE FEDERAL
COURT FOR EASTERN PENNSYLVANIA, THIS SUIT IN EQUITY FOR CONTRIBUTION
AGAINST THE EIGHT STOCKHOLDERS OR THEIR REPRESENTATIVES, RESIDENT IN
THAT STATE.  THE DISTRICT COURT DISMISSED THE BILL FOR WANT OF EQUITY,
ON THE GROUND THAT LIABILITY FOR THE TAXES AROSE SOLELY FROM ASSESSMENT
UNDER SEC. 280; AND THAT SINCE THE DEFENDANT STOCKHOLDERS HAD NEVER
BEEN ASSESSED THEY WERE NOT LIABLE FOR CONTRIBUTION.  IN AFFIRMING THAT
JUDGMENT THE CIRCUIT COURT OF APPEALS SAID, 88 F.(2D) 958, 959: 

"ANY STOCKHOLDER, INCLUDING THE APPELLEES, SHOULD BE AND IN OUR
OPINION IS, ENTITLED TO AN ASSESSMENT BY THE COMMISSIONER PRIOR TO
IMPOSITION OF TAX LIABILITY UPON HIM.  THE APPELLANTS WOULD BY
IMPLICATION ADD ANOTHER METHOD OF IMPOSING AN ASSESSMENT UPON THE
STOCKHOLDER, NAMELY, BY AN ACTION FOR CONTRIBUTION.  IT IS NOT FOR THE
COURTS TO EXTEND THE METHODS PRESCRIBED BY CONGRESS FOR IMPOSING TAX
LIABILITY.  IN THE ABSENCE OF ASSESSMENT AGAINST THE SEVERAL APPELLEES
BY THE COMMISSIONER, OR, A DECREE OR JUDGMENT OF A COURT OF RECORD
IMPOSING TAX LIABILITY UPON THEM AT THE INSTANCE OF THE COMMISSIONER,
THE LIABILITY TO CONTRIBUTION IN RELIEF OF THE APPELLANT IS NOT
ESTABLISHED." 

WE GRANTED CERTIORARI.  THE INJUSTICE OF ALLOWING THE OTHER
STOCKHOLDERS TO ESCAPE CONTRIBUTION IS OBVIOUS.  AND THERE IS NOTHING
IN THE APPLICABLE STATUTES, OR THE UNWRITTEN LAW, WHICH COMPELS OUR
DOING SO. 

FIRST.  THE LIABILITY OF THE STOCKHOLDERS FOR THE TAXES WAS NOT
CREATED BY SEC. 280.  IT DOES NOT ORIGINATE IN AN ASSESSMENT MADE
THEREUNDER.  LONG BEFORE THE ENACTMENT IT HAD BEEN SETTLED UNDER THE
TRUST FUND DOCTRINE (SEE PIERCE V. UNITED STATES, 255 U.S. 398, 402
403) THAT IF THE ASSETS OF A CORPORATION ARE DISTRIBUTED AMONG THE
STOCKHOLDERS BEFORE ALL ITS DEBTS ARE PAID, EACH STOCKHOLDER IS LIABLE
SEVERALLY TO CREDITORS, TO THE EXTENT OF THE AMOUNT RECEIVED BY HIM;
AND THAT AS BETWEEN ALL STOCKHOLDERS SIMILARLY SITUATED THE BURDEN OF
PAYING THE DEBTS SHALL BE BORNE RATABLY.  BUT BECAUSE THE COMMISSIONER
WAS FREE TO PURSUE PHILLIPS ALONE FOR THE ENTIRE AMOUNT OF THE UNPAID
TAXES, PHILLIPS COULD NOT COMPEL HIM TO JOIN OTHER STOCKHOLDERS IN THE
PROCEEDING, AS WAS SAID IN PHILLIPS V. COMMISSIONER, SUPRA, P. 604: 

"WHATEVER THE PETITIONERS' RIGHT TO CONTRIBUTION MAY BE AGAINST OTHER
STOCKHOLDERS WHO HAVE ALSO RECEIVED SHARES OF THE DISTRIBUTED ASSETS,
THE GOVERNMENT IS NOT REQUIRED, IN COLLECTING ITS REVENUE, TO MARSHAL
THE ASSETS OF A DISSOLVED CORPORATION SO AS TO ADJUST THE RIGHTS OF THE
VARIOUS STOCKHOLDERS." 

SECOND.  THE RIGHT OF A STOCKHOLDER TRANSFEREE TO CONTRIBUTION ARISES
UNDER THE GENERAL LAW AND DOES NOT DIFFER FROM THAT OF ANY OTHER PERSON
WHO HAS PAID MORE THAN HIS FAIR SHARE OF A COMMON BURDEN.  THE RIGHT TO
SUE FOR CONTRIBUTION DOES NOT DEPEND UPON A PRIOR DETERMINATION THAT
THE DEFENDANTS ARE LIABLE.  WHETHER THEY ARE LIABLE IS THE MATTER TO BE
DECIDED IN THE SUIT.  TO RECOVER, A PLAINTIFF MUST PROVE BOTH THAT
THERE WAS A COMMON BURDEN OF DEBT AND THAT HE HAS, AS BETWEEN HIMSELF
AND THE DEFENDANTS, PAID MORE THAN HIS FAIR SHARE OF THE COMMON
OBLIGATIONS.  FN1 EVERY DEFENDANT MAY, OF COURSE, SET UP ANY DEFENSE
PERSONAL TO HIM. 

SINCE THE ENACTMENT OF SEC. 280, AS BEFORE, A BILL IN EQUITY AGAINST
A STOCKHOLDER TRANSFEREE IS A REMEDY AVAILABLE TO THE COMMISSIONER TO
ENFORCE THE TAX LIABILITY OF THE CORPORATION.  LEIGHTON V. UNITED
STATES, 289 U.S. 506; HULBURD V. COMMISSIONER, 296 U.S. 300, 303.  IF
HE HAD RESORTED TO THAT REMEDY HE COULD HAVE SUED PHILLIPS ALONE (SEE
PHILLIPS V. COMMISSIONER, SUPRA, PP. 603-604); AND IF THEREUPON
PHILLIPS HAD PAID THE ENTIRE TAX, OBVIOUSLY HE COULD HAVE BROUGHT A
BILL IN EQUITY AGAINST THE OTHER STOCKHOLDERS FOR CONTRIBUTION.  FN2
THE RIGHT IS NO LESS WHERE THE COMMISSIONER PROCEEDS UNDER SEC. 280. 
THIS STATUTE DOES NOT AFFECT THE DUTY OF OTHER STOCKHOLDER TRANSFEREES
TO CONTRIBUTE; IT MERELY PROVIDES THE COMMISSIONER WITH A SUMMARY
REMEDY FOR ENFORCING EXISTING TAX LIABILITY.  PHILLIPS V. COMMISSIONER,
SUPRA, PP. 592, 594.  AS AN INCIDENT OF THIS SUMMARY REMEDY, THE
COMMISSIONER MUST MAKE AN ASSESSMENT AGAINST THE STOCKHOLDER OR
STOCKHOLDERS WHOM HE ELECTS TO PURSUE.  BUT, AS EACH STOCKHOLDER
TRANSFEREE IS SEVERALLY LIABLE TO THE EXTENT OF THE ASSETS RECEIVED BY
HIM, THE COMMISSIONER MAY PURSUE ONLY ONE AND NEED NOT MAKE AN
ASSESSMENT AGAINST OTHER TRANSFEREES.  HE ELECTED TO PROCEED ONLY
AGAINST PHILLIPS; AND AS HE SUCCEEDED IN OBTAINING PAYMENT OF THE WHOLE
TAX FROM PHILLIPS' ESTATE, HE HAD NO OCCASION TO MAKE AN ASSESSMENT
AGAINST OTHER STOCKHOLDERS.  INDEED, AFTER THE CORPORATION'S TAX HAD
BEEN PAID HE HAD NO POWER TO DO SO.  REVERSED. 

FN1  COMPARE LIDDERDALE V. ROBINSON, 12 WHEAT.  594; WRIGHT V. RUMPH,
238 FED. 138(C.C.A. 5); U.S. FIDELITY & GUARANTY CO. V. NAYLOR, 237
FED. 314(C.C.A. 8); CARTER V. LECHTY, 72 F.(2D) 320(C.C.A. 8); ALLEN V.
FAIRBANKS, 45 FED. 445(C.C.D. VT.); SEE M'DONALD V. MAGRUDER, 3 PET.
470, 477; SOUTHERN SURETY CO. V. COMMERCIAL CASUALTY INS. CO., 31
F.(2D) 817, 819(C.C.A. 3). 

FN2  COMPARE RICHTER V. HENNINGSAN, 110 CAL. 530; 42 PAC. 1077. 
..END :


















HELVERING V. GOWRAN, 302 U.S. 238 


NO. 27.  ARGUED OCTOBER 22, 1937.  - DECIDED DECEMBER 6, 1937.  - 87
F.(2D) 125, REVERSED. 


1.  DIVIDENDS OF PREFERRED STOCK TO COMMON STOCKHOLDERS WHEREBY THEY
ACQUIRE AN INTEREST IN THE CORPORATION ESSENTIALLY DIFFERENT FROM THAT
REPRESENTED BY THEIR COMMON STOCK ARE INCOME WITHIN THE MEANING OF THE
SIXTEENTH AMENDMENT.  P. 241. 

2.  ALTHOUGH CONGRESS HAS POWER TO TAX SUCH DIVIDENDS, THEY ARE
EXEMPTED BY SEC. 115(F) OF THE REVENUE ACT OF 1928, WHICH DECLARES THAT
"A STOCK DIVIDEND SHALL NOT BE SUBJECT TO TAX."  P. 241. 

3.  A COMMON STOCKHOLDER RECEIVED A DIVIDEND OF PREFERRED STOCK WORTH
$100 PER SHARE AND SEVERAL MONTHS LATER DISPOSED OF IT TO THE
CORPORATION FOR CASH AT THAT VALUATION.  HELD: 

(1)  THAT THE WHOLE OF THE PROCEEDS OF THE SALE WERE TAXABLE AS
INCOME.  P. 243. 

THE COMPUTATION IS UNDER SECS. 111 AND 113, REVENUE ACT OF 1928,
WHICH PROVIDE THAT THE GAIN FROM CONVERSION OF PROPERTY INTO MONEY
SHALL BE COMPUTED AT THE EXCESS OF THE AMOUNT REALIZED OVER THE "COST"
OF THE PROPERTY, WHICH IN THIS CASE WAS ZERO. 

(2)  THE STOCK DIVIDEND WAS NOT TO BE LIKENED TO GIFTS AND LEGACIES,
AS TO WHICH THERE ARE SPECIAL PROVISIONS OF THE ACT EXCLUDING THEM FROM
GROSS INCOME AND PRESCRIBING THE BASIS FOR COMPUTING GAIN FROM LATER
DISPOSITION OF THE PROPERTY - SECS. 113(A)(2); 22(B)(3).  P. 243. 

(3)  SECTION 115(F) CANNOT, IN VIEW OF ITS HISTORY, BE TAKEN AS A
DECLARATION OF CONGRESSIONAL INTENT THAT THE VALUE OF ALL STOCK
DIVIDENDS SHALL BE IMMUNE FROM TAX NOT ONLY WHEN RECEIVED BUT ALSO WHEN
CONVERTED INTO MONEY OR OTHER PROPERTY.  P. 244. 

(4)  THE RATES APPLICABLE WERE THOSE PRESCRIBED FOR ORDINARY INCOME,
NOT THE RATE FOR "CAPITAL GAINS" FROM "PROPERTY HELD BY THE TAXPAYER
FOR MORE THAN TWO YEARS."  SEC. 101(C)(8).  ID. 

IF IT BE ASSUMED THAT THE COMMON STOCK WAS HELD BY THE TAXPAYER FOR
MORE THAN TWO YEARS, THE FACT IS IMMATERIAL, SINCE THE DIVIDEND STOCK
HAD BEEN HELD FOR ONLY THREE MONTHS, AND WAS INCOME SUBSTANTIALLY
EQUIVALENT FOR INCOME TAX PURPOSES TO CASH OR PROPERTY, AND UNDER SEC.
115(B) WAS PRESUMED TO HAVE BEEN MADE "OUT OF EARNINGS OR PROFITS TO
THE EXTENT THEREOF, AND FROM THE MOST RECENTLY ACCUMULATED EARNINGS OR
PROFITS." 

4.  THE CIRCUIT COURT OF APPEALS MAY AFFIRM A DECISION OF THE BOARD
OF TAX APPEALS UPON A THEORY NOT PRESENTED TO OR CONSIDERED BY THE
BOARD; BUT ACCEPTANCE OF THE NEW THEORY MAY INVOLVE GRANTING THE
TAXPAYER AN OPPORTUNITY TO ESTABLISH ADDITIONAL FACTS.  P. 245. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. GOWRAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 301 U.S. 676, TO REVIEW A JUDGMENT WHICH REVERSED A
DECISION OF THE BOARD OF TAX APPEALS, 32 B.T.A. 820, SUSTAINING AN
INCOME TAX ASSESSMENT. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS FOR DECISION CONCERN THE TAXATION AS INCOME OF A
DIVIDEND IN PREFERRED STOCK AND THE PROCEEDS RECEIVED ON ITS SALE. 

ON JUNE 29, 1929, THE HAMILTON MANUFACTURING COMPANY, A WISCONSIN
CORPORATION, HAD OUTSTANDING PREFERRED STOCK OF THE PAR VALUE OF $100 A
SHARE AND COMMON STOCK WITHOUT PAR VALUE.  ON THAT DAY THE DIRECTORS
DECLARED FROM THE SURPLUS EARNINGS A DIVIDEND OF $14 A SHARE ON THE
COMMON STOCK, PAYABLE ON JULY 1, 1929, IN PREFERRED STOCK AT ITS PAR
VALUE.  GOWRAN, AS OWNER OF COMMON STOCK, RECEIVED AS HIS DIVIDEND 533
AND A FRACTION SHARES OF THE PREFERRED.  ON OR ABOUT OCTOBER 1, 1929,
THE COMPANY ACQUIRED HIS PREFERRED STOCK AND PAID HIM THEREFOR, AT $100
A SHARE, $53,371.50.  IN HIS INCOME TAX RETURN FOR THE YEAR GOWRAN DID
NOT TREAT THIS SUM AS TAXABLE INCOME, BUT INCLUDED $27,262.72 AS
CAPITAL NET GAIN ON THE SHARES RECEIVED AND SOLD, COMPUTING THE GAIN
UNDER ARTICLES 58 AND 600 OF REGULATIONS 74, THEN IN FORCE.  THE
COMMISSIONER REJECTED THAT TREATMENT OF THE MATTER; DETERMINED THAT THE
$53,371.50 RECEIVED WAS INCOME TAXABLE UNDER THE REVENUE ACT OF 1928,
SEC. 115(G), 45 STAT. 791, 822, AS A STOCK DIVIDEND REDEEMED; AND
ASSESSED A DEFICIENCY OF $5,831.67. 

THE TAXPAYER SOUGHT A REDETERMINATION BY THE BOARD OF TAX APPEALS.  A
DIVISION OF THE BOARD CONCLUDED, UPON TESTIMONY AND STIPULATED FACTS,
THAT THERE HAD BEEN NO CANCELLATION OR REDEMPTION OF THE PREFERRED
STOCK SO AS TO MAKE IT A TAXABLE DIVIDEND UNDER SEC. 115(G); THAT THE
TRANSACTION BY WHICH THE COMPANY ACQUIRED IT CONSTITUTED A SALE.  THE
COMMISSIONER SECURED A RECONSIDERATION OF THE CASE.  HE THEN CONTENDED
THAT, UNDER THE RULE DECLARED IN COMMISSIONER OF INTERNAL REVENUE V.
TILLOTSON MFG. CO., 76 F.(2D) 189, THE STOCK DIVIDEND WAS TAXABLE,
BECAUSE IT HAD RESULTED IN A CHANGE OF GOWRAN'S PROPORTIONATE INTEREST
IN THE COMPANY.  THAT CONTENTION WAS SUSTAINED BY THE BOARD; AND, ON
THAT GROUND, IT AFFIRMED THE COMMISSIONER'S DETERMINATION OF A
DEFICIENCY.  32 B.T.A. 820. 

THE TAXPAYER SOUGHT A REVIEW BY THE CIRCUIT COURT OF APPEALS.  THE
COMMISSIONER AGAIN URGED THAT THE STOCK DIVIDEND WAS TAXABLE; AND THEN,
FOR THE FIRST TIME, CONTENDED THAT, EVEN IF IT WAS NOT TAXABLE, THE
DETERMINATION OF THE DEFICIENCY SHOULD BE AFFIRMED, BECAUSE WITHIN THE
TAX YEAR THE STOCK HAD BEEN SOLD AT ITS PAR VALUE AND, AS ITS COST HAD
BEEN ZERO, THE ENTIRE PROCEEDS CONSTITUTED INCOME.  THE COURT OF
APPEALS RECOGNIZED THAT, SINCE THE DIVIDENDS IN PREFERRED STOCK GAVE TO
GOWRAN AN INTEREST DIFFERENT IN CHARACTER FROM THAT WHICH HIS COMMON
STOCK REPRESENTED, IT WAS CONSTITUTIONALLY TAXABLE UNDER KOSHLAND V.
HELVERING, 298 U.S. 441; BUT IT HELD THAT THE DIVIDEND COULD NOT BE
TAXED AS INCOME, SINCE BY SEC. 115(F) CONGRESS HAD PROVIDED:  "A STOCK
DIVIDEND SHALL NOT BE SUBJECT TO TAX."  AND IT HELD FURTHER THAT NO
PART OF THE PROCEEDS COULD BE TAXED AS INCOME, SINCE THERE WAS NO
PROFIT ON THE SALE, IT BEING AGREED THAT THE FAIR MARKET VALUE OF THE
STOCK, BOTH AT THE DATE OF RECEIPT AND AT THE DATE OF THE SALE, WAS
$100 A SHARE.  87 F.(2D) 125. 

BECAUSE OF THE IMPORTANCE OF THE QUESTIONS PRESENTED IN THE
ADMINISTRATION OF THE REVENUE LAWS, CERTIORARI WAS GRANTED. 

FIRST.  THE GOVERNMENT CONTENDS THAT SEC. 115(F) SHOULD BE READ AS
PROHIBITING TAXATION ONLY OF THOSE STOCK DIVIDENDS WHICH THE
CONSTITUTION DOES NOT PERMIT TO BE TAXED; AND THAT, SINCE BY THE
DIVIDEND GOWRAN ACQUIRED AN INTEREST IN THE CORPORATION ESSENTIALLY
DIFFERENT FROM THAT THERETOFORE REPRESENTED BY HIS COMMON STOCK, THE
DIVIDEND WAS TAXABLE.  IN SUPPORT OF THAT CONSTRUCTION OF SEC. 115(F),
IT IS URGED THAT CONGRESS HAS IN INCOME TAX LEGISLATION MANIFESTED
GENERALLY ITS INTENTION TO USE, TO THE FULL EXTENT, ITS CONSTITUTIONAL
POWER, HELVERING V. STOCKHOLMS BANK, 293 U.S. 84, 89; DOUGLAS V.
WILLCUTS, 296 U.S. 1, 9; THAT THIS COURT HOLDS GRANTS OF IMMUNITY FROM
TAXATION SHOULD ALWAYS BE STRICTLY CONSTRUED, PACIFIC CO. V. JOHNSON,
285 U.S. 480, 491; AND THAT THE ONLY REASON FOR EXEMPTING STOCK
DIVIDENDS WAS TO COMPLY WITH THE CONSTITUTION. 

THIS PREFERRED STOCK HAD SUBSTANTIALLY THE SAME ATTRIBUTES AS THAT
INVOLVED IN THE KOSHLAND CASE.  THERE THE DIVIDEND WAS OF COMMON STOCK
TO A PREFERRED STOCKHOLDER, IT IS TRUE; BUT WE ARE OF OPINION THAT
UNDER THE RULE THERE DECLARED CONGRESS COULD HAVE TAXED THIS STOCK
DIVIDEND.  NEVERTHELESS, BY SEC. 115(F) IT ENACTED IN 1928, AS IT DID
IN EARLIER AND LATER REVENUE ACTS, THAT "A STOCK DIVIDEND SHALL NOT BE
SUBJECT TO TAX."  THE PROHIBITION IS COMPREHENSIVE.  IT IS SO CLEARLY
EXPRESSED AS TO LEAVE NO ROOM FOR CONSTRUCTION.  IT EXTENDS TO ALL
STOCK DIVIDENDS.  SUCH WAS THE CONSTRUCTION CONSISTENTLY GIVEN TO IT BY
THE TREASURY DEPARTMENT.  FN1  THE PURPOSE OF CONGRESS WHEN ENACTING
SEC. 115(F) MAY HAVE BEEN MERELY TO COMPLY WITH THE REQUIREMENT OF THE
CONSTITUTION AS INTERPRETED IN EISNER V. MACOMBER, 252 U.S. 189; AND
THE COMPREHENSIVE LANGUAGE IN SEC. 115(F) MAY HAVE BEEN ADOPTED IN THE
ERRONEOUS BELIEF THAT UNDER THE RULE DECLARED IN THAT CASE NO STOCK
DIVIDEND COULD BE TAXED.  BUT SUCH FACTS WOULD NOT JUSTIFY THE COURT IN
DEPARTING FROM THE UNMISTAKABLE COMMAND EMBODIED IN THE STATUTE. 
CONGRESS DECLARED THAT THE PREFERRED STOCK SHOULD NOT BE TAXED AS A
DIVIDEND. 

SECOND.  THE GOVERNMENT CONTENDS THAT, EVEN IF SEC. 115(F) BE
CONSTRUED AS PROHIBITING TAXATION OF THE PREFERRED STOCK DIVIDEND, THE
DECISION OF THE BOARD OF TAX APPEALS AFFIRMING THE COMMISSIONER'S
DETERMINATION OF A DEFICIENCY SHOULD BE SUSTAINED, BECAUSE THE GAIN
FROM SALE OF THE STOCK WITHIN THE YEAR WAS TAXABLE INCOME AND THE
ENTIRE PROCEEDS MUST BE DEEMED INCOME, SINCE THE STOCK HAD COST GOWRAN
NOTHING.  THE CIRCUIT COURT OF APPEALS REJECTED THAT CONTENTION.  IT
HELD THAT THERE WAS NO INCOME, BECAUSE, AS STIPULATED, THERE WAS NO
DIFFERENCE BETWEEN THE VALUE OF THE STOCK WHEN RECEIVED AND ITS VALUE
WHEN SOLD.  THE COURT LIKENED A NON-TAXABLE STOCK DIVIDEND TO A TAX
FREE GIFT OR LEGACY AND SAID:  "ONE WHO RECEIVES A TAX-FREE GIFT AND
LATER SELLS IT, IN THE ABSENCE OF STATUTE PROVIDING OTHERWISE, IS TAXED
UPON THE PROFIT ARISING FROM THE DIFFERENCE IN ITS VALUE AT THE TIME HE
RECEIVES IT AND THE SALE PRICE.  SIMILARLY ONE WHO RECEIVES A TAX-FREE
BEQUEST, WHEN SELLING IT, IS TAXED UPON THE PROFIT ARISING FROM ANY
EXCESS OF THE SALE PRICE OVER ITS FAIR MARKET VALUE AT THE TIME OF
RECEIPT."  (P. 128) COMPARE TAFT V. BOWERS, 278 U.S. 470. 

THE CASES ARE NOT ANALOGOUS.  UNLIKE EARLIER LEGISLATION, SEC.
113(A)(2) OF THE REVENUE ACT OF 1928 PRESCRIBES SPECIFICALLY THE BASIS
FOR DETERMINING THE GAIN ON TAX-FREE GIFTS AND LEGACIES.  IT PROVIDES
THAT:  "IF THE PROPERTY WAS ACQUIRED BY GIFT AFTER DECEMBER 31, 1920,
THE BASIS SHALL BE THE SAME AS IT WOULD BE IN THE HANDS OF THE DONOR OR
THE LAST PRECEDING OWNER BY WHOM IT WAS NOT ACQUIRED BY GIFT."  AND THE
BASIS FOR THE COMPUTATION ON PROPERTY TRANSMITTED AT DEATH IS PROVIDED
FOR IN PARAGRAPH (5).  BUT THE METHOD OF COMPUTING THE INCOME FROM THE
SALE OF STOCK DIVIDENDS CONSTITUTIONALLY TAXABLE IS NOT SPECIFICALLY
PROVIDED FOR.  FURTHERMORE, UNLIKE SEC. 22(B)(3), EXCLUDING FROM GROSS
INCOME THE VALUE OF GIFTS AND LEGACIES, SEC. 115(F) CANNOT, IN VIEW OF
ITS HISTORY, BE TAKEN AS A DECLARATION OF CONGRESSIONAL INTENT THAT THE
VALUE OF ALL STOCK DIVIDENDS SHALL BE IMMUNE FROM TAX NOT ONLY WHEN
RECEIVED BUT ALSO WHEN CONVERTED INTO MONEY OR OTHER PROPERTY.  GAIN ON
THEM IS, THEREFORE, TO BE COMPUTED AS PROVIDED IN SECS. 111 AND 113, BY
THE "EXCESS OF THE AMOUNT REALIZED" OVER "THE COST OF SUCH PROPERTY" TO
THE TAXPAYER.  AS THE COST OF THE PREFERRED STOCK TO GOWRAN WAS ZERO,
THE WHOLE OF THE PROCEEDS IS TAXABLE. 

GOWRAN ASSERTS THAT IF THIS "BASIS OF ZERO" THEORY IS ACCEPTED, THE
PROCEEDS ARE TAXABLE NOT AS DETERMINED BY THE COMMISSIONER BUT AS A
CAPITAL GAIN AT A DIFFERENT RATE AND UNDER DIFFERENT REGULATIONS.  THIS
DEPENDS UPON WHETHER THE PREFERRED STOCK RECEIVED AS A DIVIDEND WAS A
"CAPITAL ASSET," DEFINED BY SEC. 101(C)(8) AS "PROPERTY HELD BY THE
TAXPAYER FOR MORE THAN TWO YEARS."  THE RECORD IS SILENT AS TO WHEN
GOWRAN ACQUIRED THE COMMON STOCK UPON WHICH THE PREFERRED WAS ISSUED AS
A DIVIDEND, BUT IT MAY BE ASSUMED THAT HE HAD HELD IT FOR MORE THAN TWO
YEARS.  FOR THAT FACT IS IMMATERIAL SINCE THE DIVIDEND STOCK HAD BEEN
HELD FOR ONLY THREE MONTHS.  WHETHER TAXED BY CONGRESS OR NOT, IT WAS
INCOME, SUBSTANTIALLY EQUIVALENT FOR INCOME TAX PURPOSES TO CASH OR
PROPERTY, AND UNDER SEC. 115(B) WAS PRESUMED TO HAVE BEEN MADE "OUT OF
EARNINGS OR PROFITS TO THE EXTENT THEREOF, AND FROM THE MOST RECENTLY
ACCUMULATED EARNINGS OR PROFITS."  IN NO SENSE, THEREFORE, CAN IT BE
SAID TO HAVE BEEN "HELD" BY GOWRAN PRIOR TO ITS DECLARATION.  FN2
SINCE THE PROCEEDS WERE THEREFORE NOT "CAPITAL GAINS," THEY WERE
TAXABLE AT THE NORMAL AND SURTAX RATES APPLICABLE TO ORDINARY INCOME. 
FN3 

THIRD.  GOWRAN CONTENDS HERE THAT THE GOVERNMENT SHOULD NOT HAVE BEEN
PERMITTED BY THE COURT OF APPEALS TO ARGUE ITS "BASIS OF ZERO" THEORY,
BECAUSE THAT THEORY RAISED AN ISSUE NOT PLEADED, TRIED, ARGUED OR
OTHERWISE REFERRED TO IN THE PROCEEDINGS BEFORE THE BOARD.  IT IS TRUE
THAT THE THEORY WAS FIRST PRESENTED BY THE COMMISSIONER IN THE COURT OF
APPEALS.  BUT IT DOES NOT APPEAR BY THE RECORD THAT OBJECTION TO THE
CONSIDERATION OF THIS THEORY WAS MADE BELOW.  THE ONLY OBJECTION MADE
THERE, AS DISCLOSED BY THE OPINION, WAS "THAT THE BOARD WAS WITHOUT
JURISDICTION TO DECIDE THE CASE UPON A POINT NOT URGED BY THE
COMMISSIONER."  AS TO THAT OBJECTION, THE COURT, AFTER STATING THAT THE
ONLY QUESTIONS SUBMITTED ARE THOSE OF LAW, SAID:  "THE BOARD APPROVED
THE COMMISSIONER'S ASSESSMENT, BUT DID SO UPON A LEGAL THEORY DIFFERENT
FROM HIS.  WE ARE OF OPINION THAT THE BOARD ACTED WITHIN ITS POWERS....
IT IS IMMATERIAL WHETHER THE COMMISSIONER PROCEEDED UPON THE WRONG
THEORY.  THE BURDEN IS UPON THE PETITIONER TO SHOW THAT THE ASSESSMENT
IS WRONG, UPON ANY PROPER THEORY; OTHERWISE HE MUST FAIL."  (P. 127). 

IN THE REVIEW OF JUDICIAL PROCEEDINGS THE RULE IS SETTLED THAT IF THE
DECISION BELOW IS CORRECT, IT MUST BE AFFIRMED, ALTHOUGH THE LOWER
COURT RELIED UPON A WRONG GROUND OR GAVE A WRONG REASON.  FREY & SON V.
CUDAHY PACKING CO., 256 U.S. 208; UNITED STATES V. AMERICAN RY. EXPRESS
CO., 265 U.S. 425; UNITED STATES V. HOLT STATE BANK, 270 U.S. 49, 56;
LANGNES V. GREEN, 282 U.S. 531; STELOS CO. V. HOSIERY MOTOR-MEND CORP.,
295 U.S. 237, 239; CF. UNITED STATES V. WILLIAMS, 278 U.S. 255.  THIS
APPLIES ALSO TO THE REVIEW OF DECISIONS OF THE BOARD OF TAX APPEALS. 
HELVERING V. RANKIN, 295 U.S. 123, 132-133; CF. GENERAL UTILITIES &
OPERATING CO. V. HELVERING, 296 U.S. 200, 206.  FN4  THE TAXPAYER
SOUGHT REVIEW OF THE BOARD'S DECISION BY THE COURT OF APPEALS.  THE
ULTIMATE QUESTION BEFORE THAT COURT WAS WHETHER, UPON THE FACTS
STIPULATED, THE BOARD HAD ERRED IN AFFIRMING THE COMMISSIONER'S
DETERMINATION THAT THE ADDITIONAL TAXES WERE DUE.  IF THE COMMISSIONER
WAS RIGHT IN HIS DETERMINATION, THE BOARD PROPERLY AFFIRMED IT, EVEN IF
THE REASONS WHICH HE HAD ASSIGNED WERE WRONG.  FN5  AND, LIKEWISE, IF
THE COMMISSIONER'S DETERMINATION WAS RIGHT, THE BOARD'S AFFIRMANCE OF
IT SHOULD HAVE BEEN SUSTAINED BY THE COURT OF APPEALS, EVEN IF THE
BOARD GAVE A WRONG REASON FOR ITS ACTION.  BY THIS RULE THE GOVERNMENT
WAS ENTITLED TO URGE IN THE COURT OF APPEALS THAT ON THE UNDISPUTED
FACTS THE BOARD'S DECISION WAS CORRECT BECAUSE OF THE "BASIS OF ZERO"
THEORY.  AND SINCE THAT COURT REJECTED THE THEORY, THE GOVERNMENT WAS
ENTITLED TO ASSERT ITS CONTENTION HERE.  NOTHING IN GENERAL UTILITIES &
OPERATING CO. V. HELVERING, SUPRA, OR IN HELVERING V. SALVAGE, 297 U.S.
106, IS OPPOSED TO SUCH PROCEDURE. 

IF THE COURT OF APPEALS HAD ACCEPTED THE THEORY, IT WOULD HAVE BEEN
OPEN TO THE TAXPAYER TO URGE, IN VIEW OF THE NEW ISSUE PRESENTED, THAT
HE SHOULD HAVE THE OPPORTUNITY TO ESTABLISH BEFORE THE BOARD ADDITIONAL
FACTS WHICH WOULD AFFECT THE RESULT.  FN6  AS WE ACCEPT THE NEW THEORY,
LEAVE IS GRANTED GOWRAN TO APPLY TO THE LOWER COURT FOR THAT PURPOSE. 
REVERSED. 

FN1  EISNER V. MACOMBER WAS DECIDED MARCH 8, 1920.  SOON THEREAFTER,
THE TREASURY DEPARTMENT DECLARED, IN A SERIES OF DECISIONS AND
REGULATIONS, THAT NO STOCK DIVIDEND WAS TAXABLE.  TREAS. DEC. 3052, 3
C.B. 38(AUGUST 4, 1920); TREAS. DEC. 3059, 3 C.B. 38(AUGUST 16, 1920);
OFFICE DEC. 732, 3 C.B. 39(OCTOBER 28, 1920).  OFFICE DEC. 801, 4 C.B.
24(JANUARY 5, 1921) PROVIDED:  "A STOCK DIVIDEND PAID IN TRUE PREFERRED
STOCK IS EXEMPT FROM TAX THE SAME AS THOUGH THE DIVIDEND WERE PAID IN
COMMON STOCK."  THEN FOLLOWED LEGISLATION IN THE PRECISE FORM EMBODIED
IN SEC. 115(F) OF THE REVENUE ACT OF 1928.  SEE SEC. 201(D) OF THE
REVENUE ACT OF 1921, 42 STAT. 227, 228; SEC. 201(F) OF THE REVENUE ACT
OF 1924, 43 STAT. 253, 255; SEC. 201(F) OF THE REVENUE ACT OF 1926, 44
STAT. 9, 11; SEC. 115(F) OF THE REVENUE ACT OF 1932, 47 STAT. 169, 204;
SEC. 115(F) OF THE REVENUE ACT OF 1934, 48 STAT. 680, 712.  ARTICLE 628
OF THE REGULATIONS IN FORCE IN 1928 PROVIDED: "STOCK DIVIDENDS.  - THE
ISSUANCE OF ITS OWN STOCK BY A CORPORATION AS A DIVIDEND TO ITS
SHAREHOLDERS DOES NOT RESULT IN TAXABLE INCOME TO SUCH SHAREHOLDERS,
BUT GAIN MAY BE DERIVED OR LOSS SUSTAINED BY THE SHAREHOLDERS FROM THE
SALE OF SUCH STOCK.  THE AMOUNT OF GAIN DERIVED OR LOSS SUSTAINED FROM
THE SALE OF SUCH STOCK, OR FROM THE SALE OF THE STOCK IN RESPECT OF
WHICH IT IS ISSUED, SHALL BE DETERMINED AS PROVIDED IN ARTICLES 561 AND
600."    KOSHLAND V. HELVERING, 298 U.S. 441, WAS DECIDED MAY 18,
1936.  ON JUNE 22, 1936, CONGRESS, IN ENACTING THE REVENUE ACT OF 1936,
PROVIDED IN SEC. 115(F):  "1.  GENERAL RULE - A DISTRIBUTION MADE BY A
CORPORATION TO ITS SHAREHOLDERS IN ITS STOCK OR IN RIGHTS TO ACQUIRE
ITS STOCK SHALL NOT BE TREATED AS A DIVIDEND TO THE EXTENT THAT IT DOES
NOT CONSTITUTE INCOME TO THE SHAREHOLDER WITHIN THE MEANING OF THE
SIXTEENTH AMENDMENT TO THE CONSTITUTION."  49 STAT. 1648, 1688.  SEE
ALSO SEC. 115(H). 

FN2  ARTICLE 501 OF REGULATIONS 74 STATES THAT "IF THE TAXPAYER HAS
HELD FOR MORE THAN TWO YEARS STOCK UPON WHICH A STOCK DIVIDEND HAS BEEN
DECLARED, BOTH THE ORIGINAL AND DIVIDEND SHARES ARE CONSIDERED TO BE
CAPITAL ASSETS."  BUT THIS WAS BASED UPON THE ERRONEOUS PREMISE THAT
STOCK DIVIDENDS COULD NOT BE INCOME, AND WAS PART OF AN ADMINISTRATIVE
SCHEME TO APPORTION SOME OF THE COST OF THE ORIGINAL SHARES TO THE
STOCK RECEIVED BY WAY OF DIVIDEND.  THIS ARRANGEMENT WE DECLARED IN
KOSHLAND V. HELVERING, 298 U.S. 441, TO BE WITHOUT STATUTORY AUTHORITY,
AND THE SAME MUST BE SAID OF THE REGULATION INVOLVED HERE. 

FN3  SEE BURNET V. HARMEL, 287 U.S. 103, 105-106; HELVERING V. NEW
YORK TRUST CO., 292 U.S. 455, 463; MCFEELY V. COMMISSIONER, 296 U.S.
102, 106-107. 

FN4  SEE ALSO HURWITZ V. COMMISSIONER, 45 F.(2D) 780(C.C.A. 2);
SUPERHEATER CO. V. COMMISSIONER, 38 F.(2D) 69(C.C.A. 2); COMMISSIONER
V. LINDERMAN, 84 F.(2D) 727(C.C.A. 3); DICKEY V. BURNET, 56 F.(2D)
917(C.C.A. 8); LEWIS-HALL IRON WORKS V. BLAIR, 57 APP. D.C. 364; 23
F.(2D) 972; CF. DOBBINS V. COMMISSIONER, 31 F.(2D) 935(C.C.A. 3);
SEUFERT BROS. CO. V. LUCAS, 44 F.(2D) 528(C.C.A. 9); HUGHES V.
COMMISSIONER, 38 F.(2D) 755(C.C.A. 10). 

FN5  COMPARE DARCY V. COMMISSIONER, 66 F.(2D) 581(C.C.A. 2);
HELVERING V. GREGORY, 69 F.(2D) 809(C.C.A. 2), AFF'D, 293 U.S. 465;
ALEXANDER SPRUNT & SON V. COMMISSIONER, 64 F.(2D) 424(C.C.A. 4);
HELVERING V. BOWEN, 85 F.(2D) 926(C.C.A. 4); ATLANTA CASKET CO. V.
ROSE, 22 F.(2D) 800(C.C.A. 5); J. & O. ALTSCHUL TOBACCO CO. V.
COMMISSIONER, 42 F.(2D) 609(C.C.A. 5); CROWELL V. COMMISSIONER, 62
F.(2D) 51(C.C.A. 6); SCHWEITZER V. COMMISSIONER 75 F.(2D) 702(C.C.A.
7), REV'D ON OTHER GROUNDS, 296 U.S. 551; CHRISTOPHER V. BURNET, 55
F.(2D) 527(APP.  D.C.); BEAUMONT V. HELVERING, 63 APP. D.C. 387; 73
F.(2D) 110. 

FN6  COMPARE WOODWARD V. BOSTON LASTING MACHINE CO., 60 FED. 283, 63
FED. 609(C.C.A. 1). 
..END :


















HELVERING V. PFEIFFER, 302 U.S. 247 


NO. 29.  ARGUED OCTOBER 22, 1937.  - DECIDED DECEMBER 6, 1937.  - 88
F.(2D) 3, AFFIRMED. 


1.  SECTION 115(F) OF THE REVENUE ACT 1928 EXEMPTED DIVIDENDS OF
PREFERRED STOCK FROM TAXATION.  HELVERING V. GOWRAN, ANTE, P. 238.  P.
250. 

2.  AN APPELLEE CAN NOT, WITHOUT A CROSS APPEAL, ATTACK THE JUDGMENT
APPEALED FROM.  THIS RULE APPLIES TO A DECISION OF THE BOARD OF TAX
APPEALS.  P. 250. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. PFEIFFER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 301 U.S. 677, TO REVIEW A JUDGMENT AFFIRMING IN PART AND
REVERSING IN PART A DECISION OF THE BOARD OF TAX APPEALS. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS QUESTIONS OF INCOME TAXATION APPLICABLE TO STOCK
DIVIDENDS. 

IN 1931, ANNIE M. PFEIFFER, A HOLDER OF COMMON STOCK IN WILLIAM R.
WARNER CORPORATION, RECEIVED AS A DIVIDEND THEREON 6,291 1/4 SHARES OF
ITS PREFERRED STOCK.  SHE ALSO RECEIVED FROM THE CORPORATION IN THAT
YEAR $200,000 CASH IN EXCHANGE FOR 2,000 SHARES OF ITS PREFERRED STOCK
WHICH SHE HAD RECEIVED AS A DIVIDEND IN 1928.  IN HER INCOME TAX RETURN
FOR 1931, SHE DID NOT INCLUDE AS TAXABLE INCOME EITHER THE PREFERRED
STOCK OR THE $200,000 CASH.  SHE DID NOT INCLUDE THE PREFERRED STOCK
RECEIVED IN THAT YEAR, BECAUSE SHE DEEMED IT EXEMPT FROM TAXATION UNDER
SEC. 115(F) OF THE REVENUE ACT OF 1928, 45 STAT. 791, 822.  SHE DID NOT
INCLUDE THE $200,000 CASH AS TAXABLE INCOME, BECAUSE SHE CONSIDERED IT
THE PROCEEDS FROM THE SALE OF A CAPITAL ASSET.  BUT SHE DID INCLUDE
$180,100 THEREOF AS TAXABLE CAPITAL GAIN ON THE SALE, COMPUTING THE
GAIN IN ACCORDANCE WITH THE THEN EFFECTIVE TREASURY REGULATIONS.  AND
SHE PAID A TAX OF $22,512.50 ON SUCH CAPITAL GAIN. 

THE COMMISSIONER ASSESSED A DEFICIENCY ON EACH ITEM.  HE DETERMINED
THAT THE 6,291 1/4 SHARES OF PREFERRED STOCK VALUED AT $629,125, WERE
TAXABLE INCOME OF 1931, BECAUSE NOT EXEMPT UNDER SEC. 115(F); AND THAT
THE $200,000 CASH WERE THE PROCEEDS OF A REDEMPTION UNDER SEC. 115(G),
AND HENCE TAXABLE INCOME.  HE ELIMINATED THE TAXABLE CAPITAL GAIN
REPORTED AND ASSESSED A DEFICIENCY ON EACH OF THE ITEMS. 

THE TAXPAYER SOUGHT A REVIEW BY THE BOARD OF TAX APPEALS.  IT
AFFIRMED THE COMMISSIONER'S DETERMINATION THAT THE PREFERRED STOCK
RECEIVED IN 1931 WAS TAXABLE INCOME; BUT REVERSED HIS DETERMINATION AS
TO THE PROCEEDS OF THE 2,000 SHARES, AND SAID: 

"THE COMMISSIONER HELD THAT THE REDEMPTION OF THE 2,000 SHARES IN
1931 WAS AT SUCH TIME AND IN SUCH MANNER AS TO BE SUBSTANTIALLY
EQUIVALENT TO A TAXABLE DIVIDEND IN 1931, WITHIN THE MEANING OF SECTION
115(G) OF THE REVENUE ACT OF 1928.  HE ERRED IN THIS SINCE THE
DISTRIBUTION WAS SUBJECT TO TAX AS A DIVIDEND IN 1928(SEE CASES ABOVE
CITED).  THEREAFTER THE SHARES HAD A BASIS FOR GAIN OR LOSS TO THE
PETITIONER OF $100 EACH, AND THEY WERE REDEEMED WITHOUT GAIN OR LOSS TO
THE PETITIONER AT $100 EACH IN 1931." 

THE COMMISSIONER ACQUIESCED IN THE BOARD'S DECISION.  THE TAXPAYER
SOUGHT A REVIEW BY THE CIRCUIT COURT OF APPEALS.  IT REVERSED THE
BOARD'S DECISION AS TO THE 1931 STOCK DIVIDEND, ON THE GROUND THAT SEC.
115(F) EXEMPTED THAT DIVIDEND FROM TAXATION; AND IT AFFIRMED THE
BOARD'S DECISION THAT THE $200,000 CASH WAS NOT TAXABLE INCOME OF 1931,
SAYING, 88 F.(2D) 3, 5: 

"THE APPELLEE ARGUES THAT THE PROCEEDS FROM THE REDEMPTION IN 1931 OF
2,000 SHARES OF PREFERRED STOCK DISTRIBUTED AS A STOCK DIVIDEND IN 1928
SHOULD BE CONSIDERED EITHER (A) SUBJECT TO A TAX AS A CAPITAL GAIN OR
(B) SUBJECT TO TAXATION AS THE EQUIVALENT OF THE DISTRIBUTION OF A
TAXABLE DIVIDEND PURSUANT TO SECTION 115(G) OF THE REVENUE ACT.  THE
QUESTION OF TAXABILITY AS CAPITAL GAIN OF THE $200,000 OR ANY PART
THEREOF WAS NOT IN ISSUE BEFORE OR DECIDED BY THE BOARD OF TAX
APPEALS.  THE CONTENTION THAT WE HAVE AUTHORITY TO SUSTAIN THE
DEFICIENCY PRO TANTO EVEN THOUGH THE ISSUE WAS NOT RAISED BEFORE THE
BOARD NOR DECIDED BY IT NOR ASSIGNED AS ERROR IN THE PETITION TO THIS
COURT FOR A REVIEW OF THE BOARD'S DECISION IS UNTENABLE.  GENERAL
UTILITIES & OPERATING CO. V. HELVERING, 296 U.S. 200,  ...; HELVERING
V. SALVAGE, 297 U.S. 106,  ....  THE BOARD HELD THAT THIS STOCK
DIVIDEND REDEEMED IN 1931 AT $100 PER SHARE WAS TAXABLE IN THE YEAR
1928 WHEN RECEIVED AND WAS THEREFORE NOT TAXABLE UNDER SECTION 115(G);
THAT IT HAD A BASIS FOR GAIN OR LOSS OF $100 PER SHARE; AND THAT
THEREFORE THERE WAS NO TAXABLE INCOME FROM THE REDEMPTION.  THE
COMMISSIONER DID NOT FILE A CROSS-APPEAL.  BY THE PROVISIONS OF SECTION
115(G) THE PROCEEDS OF THE REDEMPTION OF THE STOCK CAN BE TAXED ONLY IF
IT OCCURS AT SUCH TIME AND IN SUCH MANNER AS TO MAKE THE REDEMPTION
ESSENTIALLY EQUIVALENT TO THE DISTRIBUTION OF A TAXABLE DIVIDEND. 
SINCE THE BOARD DID NOT SO FIND, WE CANNOT SUPPORT THIS CONTENTION." 

THE COMMISSIONER'S PETITION FOR CERTIORARI WAS GRANTED IN CONNECTION
WITH THAT IN HELVERING V. GOWRAN, ANTE, P. 238, DECIDED THIS DAY. 

FIRST.  AS TO THE 1931 DIVIDEND IN PREFERRED STOCK, THE COMMISSIONER
CONTENDS THAT THE IMMUNITY FROM TAXATION CONFERRED BY SEC. 115(F) DID
NOT EXTEND TO IT.  WE HOLD, FOR THE REASONS STATED IN PARAGRAPH FIRST
OF HELVERING V. GOWRAN, SUPRA, THAT IT WAS EXEMPT FROM TAXATION. 

SECOND.  AS TO THE $200,000 RECEIVED IN 1931, THE COMMISSIONER
CONTENDS THAT THE CIRCUIT COURT OF APPEALS ERRED IN FAILING TO HOLD IT
TAXABLE INCOME, SINCE UNDER THE RULE DECLARED IN HELVERING V. GOWRAN,
SUPRA, THE COST WAS ZERO. 

WE ARE NOT AT LIBERTY TO ENTERTAIN THAT CONTENTION.  THE BOARD OF TAX
APPEALS DECIDED THAT THE $200,000 WAS NOT TAXABLE INCOME OF 1931.  AS
THE COMMISSIONER DID NOT SEEK A REVIEW OF THAT DECISION, WHICH WAS
ADVERSE TO HIM, THE CIRCUIT COURT OF APPEALS PROPERLY REFUSED TO
CONSIDER THE CONTENTION.  GENERAL UTILITIES & OPERATING CO. V.
HELVERING, 296 U.S. 200, 206.  WHILE A DECISION BELOW MAY BE SUSTAINED,
WITHOUT A CROSS-APPEAL, ALTHOUGH IT WAS RESTED UPON A WRONG GROUND, SEE
HELVERING V. GOWRAN, SUPRA, AN APPELLEE CANNOT WITHOUT A CROSS-APPEAL
ATTACK A JUDGMENT ENTERED BELOW.  COMPARE UNITED STATES V. AMERICAN
RAILWAY EXPRESS CO., 265 U.S. 425, 435; MORLEY CONSTRUCTION CO. V.
MARYLAND CASUALTY CO., 300 U.S. 185.  FN1 THE SAME RULE APPLIES TO A
DECISION OF THE BOARD OF TAX APPEALS. 

THIRD.  THE COMMISSIONER REQUESTS THAT, IF WE HOLD THAT THE BOARD
ERRED IN DECLARING THAT THE 2,000 SHARES RECEIVED IN 1928 WERE THEN
TAXABLE AND REFUSE TO REVIEW ITS DECISION THAT THE PROCEEDS RECEIVED IN
1931 WERE NOT TAXABLE, WE SHOULD REMAND THE CASE TO THE BOARD TO
DETERMINE WHETHER REDEMPTION OF THE 2,000 SHARES WAS MADE AT SUCH TIME
AND IN SUCH MANNER AS TO BE ESSENTIALLY EQUIVALENT TO THE DISTRIBUTION
OF A TAXABLE DIVIDEND UNDER SEC. 115(G).  THE COMMISSIONER ACQUIESCED
IN THE DECISION OF THE BOARD.  NO GOOD REASON IS SHOWN FOR DISTURBING
IT. AFFIRMED. 

FN1  SEE ALSO THE STEPHAN MORGAN, 94 U.S. 599; MOUNT PLEASANT V.
BECKWITH, 100 U.S. 514, 527; UNITED STATES V. BLACKFEATHER, 155 U.S.
180; LANDRAM V. JORDAN, 203 U.S. 56; SOUTHERN PINE LUMBER CO. V. WARD,
208 U.S. 126, 137; FITCHIE V. BROWN, 211 U.S. 321, 329; BOTHWELL V.
UNITED STATES, 254 U.S. 231. 

MR. JUSTICE STONE AND MR. JUSTICE CARDOZO THINK THE JUDGMENT SHOULD
BE REVERSED. 

THE ISSUE BEFORE THE BOARD OF TAX APPEALS WAS THE EXISTENCE OF A
DEFICIENCY IN RESPONDENT'S INCOME TAX FOR A SINGLE YEAR, 1931.  THE
DEFICIENCY FIXED BY THE COMMISSIONER REPRESENTED HER NET TAX LIABILITY
FOR THAT YEAR AND DREW IN QUESTION EVERY ITEM WHICH ENTERED INTO
COMPUTATION OF THE TAX.  LEWIS V. REYNOLDS, 284 U.S. 281, 283.  HER
APPEAL TO THE BOARD DREW IN QUESTION HER NET TAX LIABILITY ON A
REEXAMINATION OF EVERY ITEM OF INCOME IN THAT YEAR WHICH SHE HAD
CHALLENGED IN HER PETITION.  THE COMMISSIONER HAD TREATED AS TAXABLE
INCOME OF RESPONDENT TWO ITEMS, BOTH RECEIVED IN THAT YEAR, AND
ASSESSED A DEFICIENCY ACCORDINGLY.  THEY WERE A DIVIDEND PAID TO THE
TAXPAYER IN PREFERRED STOCK, AND CASH RECEIVED BY HER IN THAT YEAR UPON
THE REDEMPTION OF PREFERRED STOCK RECEIVED AS A DIVIDEND IN AN EARLIER
YEAR.  THE BOARD OF TAX APPEALS THOUGHT RESPONDENT WAS TAXABLE IN 1931
ON THE FIRST BUT NOT ON THE SECOND ITEM, AND REDUCED THE DEFICIENCY
ACCORDINGLY.  IT "ORDERED AND DECIDED, THAT THERE IS A DEFICIENCY FOR
THE YEAR 1931 IN THE AMOUNT OF $89,841.75." 

THIS COURT, UPON CONSIDERATION OF THE FACTS STIPULATED BY THE PARTIES
AND FOUND BY THE BOARD, HOLDS THAT RESPONDENT WAS TAXABLE UPON THE FULL
AMOUNT OF THE ITEM OF CASH RECEIVED BUT NOT UPON THE STOCK DIVIDEND. 
BUT, BECAUSE THE COMMISSIONER TOOK NO APPEAL FROM THE ORDER OF THE
BOARD, THE COURT DECLINES TO GIVE ANY EFFECT TO ITS RULING THAT THE
CASH IS TAXABLE INCOME IN 1931.  IF THE COMMISSIONER HAD SOUGHT ONLY TO
INCREASE THE DEFICIENCY FOUND BY THE BOARD, IT MAY BE CONCEDED THAT THE
POINT WOULD BE WELL TAKEN, BUT SUCH IS NOT HIS PURPOSE.  ON THE
CONTRARY, HE ACCEPTS THE ORDER AND RELIES UPON IT AS ESTABLISHING A
DEFICIENCY OF WHICH HE ASKS THE BENEFIT ONLY SO FAR AS IT IS SUSTAINED
BY THE APPLICATION, TO THE FACTS FOUND, OF THE RULE OF LAW ANNOUNCED BY
THIS COURT. 

THE CIRCUMSTANCE THAT THE BOARD, BY THE ERRONEOUS APPLICATION OF A
RULE OF LAW TO THE FACTS BEFORE IT ARRIVED AT A DEFICIENCY WHICH IS
SUSTAINED BY A CORRECT APPLICATION OF A DIFFERENT RULE, IS NOT GROUND
FOR SETTING ASIDE ITS ORDER.  LANGNES V. GREEN, 282 U.S. 531, 538-539;
ANDERSON V. ATHERTON, POST, P. 643; COMPARE MORLEY CONSTRUCTION CO. V.
MARYLAND CASUALTY CO., 300 U.S. 185.  IN DENYING TO THE COMMISSIONER
ANY BENEFIT OF THE ORDER BECAUSE HE DID NOT APPEAL, THE OPINION OF THE
COURT GIVES NO HINT OF ANY GROUND UPON WHICH THE COMMISSIONER SHOULD OR
COULD HAVE APPEALED SO FAR AS THE ORDER FIXES A DEFICIENCY WHICH THE
RECORD SHOWS IS LAWFULLY DUE OR WHY THE RESPONDENT IS NOT FREE TO
MAINTAIN THAT THE BOARD REACHED THE RIGHT RESULT EVEN THOUGH THE REASON
IT GAVE WAS WRONG. 

THE CAUSE SHOULD BE REMANDED TO THE BOARD OF TAX APPEALS TO RECOMPUTE
THE DEFICIENCY IN CONFORMITY WITH THE RULE OF TAX LIABILITY LAID DOWN
IN THE OPINION OF THIS COURT, BUT IN AN AMOUNT NOT EXCEEDING THAT WHICH
THE BOARD HAS FOUND. 

GENERAL UTILITIES & OPERATING CO. V. HELVERING, 296 U.S. 200, DOES
NOT REQUIRE ANY DIFFERENT RESULT.  THERE IT WAS HELD THAT IT WAS ERROR
FOR THE CIRCUIT COURT OF APPEALS, ON AN APPEAL BY THE COMMISSIONER, TO
REVERSE AN ORDER OF THE BOARD AND REMAND THE CAUSE FOR NEW FINDINGS TO
SUPPORT A THEORY OF TAX LIABILITY WHICH FIRST EMERGED FROM THE CASE ON
APPEAL.  HERE THERE IS NO NEW ISSUE TO BE TRIED BY THE BOARD.  THE ONLY
ISSUE IS ONE OF LAW WHICH THIS COURT HAS RESOLVED AND WHICH HAS BEEN
IMPLICIT IN THE CASE FROM THE BEGINNING. 
..END :













PUERTO RICO V. SHELL CO., 302 U.S. 253 


NO. 18.  ARGUED NOVEMBER 9, 1937.  - DECIDED DECEMBER 6, 1937.  - 86
F.(2D) 577, REVERSED. 


1.  THE MEANING OF A PARTICULAR WORD AS USED IN A PARTICULAR INSTANCE
IN A STATUTE IS TO BE ARRIVED AT BY CONSIDERATION NOT ONLY OF THE WORD
ITSELF, BUT ALSO OF THE CONTEXT, THE PURPOSES OF THE LAW, AND THE
CIRCUMSTANCES UNDER WHICH THE WORD WAS USED.  P. 258. 

2.  THE WORD "TERRITORY" IN SEC. 3 OF THE SHERMAN ANTITRUST ACT -
FORBIDDING CONTRACTS, COMBINATIONS, OR CONSPIRACIES "IN RESTRAINT OF
TRADE OR COMMERCE IN ANY TERRITORY OF THE UNITED STATES" ETC. - WAS
USED IN ITS MOST COMPREHENSIVE SENSE, AS EMBRACING ALL ORGANIZED
TERRITORIES, WHETHER INCORPORATED INTO THE UNITED STATES OR NOT, AND
INCLUDES PUERTO RICO.  P. 259. 

3.  THE EXISTENCE OF SEC. 3 OF THE SHERMAN ANTITRUST ACT DID NOT
PRECLUDE ADOPTION BY THE LEGISLATURE OF PUERTO RICO OF A LOCAL
ANTITRUST ACT.  P. 259. 

4.  THE INSULAR LEGISLATURE OF PUERTO RICO HAD AUTHORITY, UNDER THE
GRANT OF LEGISLATIVE POWER CONTAINED IN SEC. 32 OF THE FORAKER ACT AND
CONTINUED IN FORCE BY SEC. 37 OF THE ORGANIC ACT OF 1917, TO ENACT A
LOCAL ANTITRUST ACT.  THE SUBJECT-MATTER IS "OF A LEGISLATIVE CHARACTER
NOT LOCALLY INAPPLICABLE."  P. 260. 

5.  PUERTO RICO'S POWER OF LOCAL LEGISLATION IS NOT LIMITED BY ANY
EXPRESS PROVISION OF THE FORAKER ACT OR OF THE ORGANIC ACT, TO SUBJECTS
IN RESPECT OF WHICH THERE IS AN ABSENCE OF EXPLICIT LEGISLATION BY
CONGRESS; AND THERE IS NOTHING IN THE NATURE OF THE POWER OR IN THE
CONSEQUENCES LIKELY TO ENSUE FROM THE DUPLICATE EXERCISE OF IT WHICH
REQUIRES THAT SUCH A LIMITATION BE IMPLIED.  P. 263. 

6.  THE FEDERAL APPELLATE COURTS HAVE POWER TO RESOLVE A CONFLICT OF
DECISIONS BETWEEN THE INSULAR COURTS OF PUERTO RICO AND THE FEDERAL
DISTRICT COURT.  P. 263. 

7.  A PROSECUTION UNDER EITHER THE SHERMAN ACT OR THE ANTITRUST ACT
OF PUERTO RICO IS A BAR TO A PROSECUTION UNDER THE OTHER FOR THE SAME
OFFENSE; WHEREFORE THERE IS NO RISK OF DOUBLE JEOPARDY.  GRAFTON V.
UNITED STATES, 206 U.S. 333.  P. 264. 

8.  IN DETERMINING QUESTIONS RELATING TO THE HISTORY, PURPOSE AND
APPLICATION OF TERRITORIAL POWERS, PERTINENT DECISIONS OF STATE SUPREME
COURTS, RENDERED WHEN THE STATES WERE NEWLY CREATED FROM FORMER
TERRITORIES, ARE ENTITLED TO GREAT WEIGHT.  P. 266. 

9.  EL PASO & N.E. RY. CO. V. GUTIERREZ, 215 U.S. 87; DAVIS V.
BEASON, 133 U.S. 333; AND DOMENECH V. NATIONAL CITY BANK, 294 U.S. 199,
DISTINGUISHED.  PP. 268, 270. 

10.  THE CONTENTION THAT THE SHERMAN ACT AND THE LOCAL ANTITRUST ACT
OF PUERTO RICO CAN NOT BOTH STAND, BECAUSE A CONFLICT OF JURISDICTION
BETWEEN THE FEDERAL COURTS AND THE INSULAR COURTS MAY RESULT, CAN NOT
BE SUSTAINED.  P. 271. 

PUERTO RICO V. THE SHELL CO. (P.R.), LIMITED, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 301 U.S. 675, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
OF THE SUPREME COURT OF PUERTO RICO, WHICH DISMISSED AN APPEAL FROM AN
ORDER OF THE INSULAR DISTRICT COURT SUSTAINING DEMURRERS TO AN
INFORMATION CHARGING VIOLATION OF THE LOCAL ANTITRUST ACT. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THIS IS A CRIMINAL PROCEEDING BROUGHT BY PETITIONER AGAINST THE
RESPONDENTS IN THE INSULAR DISTRICT COURT OF SAN JUAN, PUERTO RICO.  AN
INFORMATION FILED BY THE DISTRICT ATTORNEY CHARGED RESPONDENTS WITH
ENTERING INTO A CONSPIRACY IN RESTRAINT OF TRADE IN VIOLATION OF THE
LOCAL ANTI-TRUST ACT, PASSED BY THE LEGISLATURE OF PUERTO RICO MARCH
14, 1907.  DEMURRERS TO THE INFORMATION WERE SUSTAINED BY THE DISTRICT
COURT ON THE GROUND THAT THE SHERMAN ANTI-TRUST ACT OF 1890,
SUPPLEMENTED BY THE CLAYTON ACT OF 1914, COVERED THE ENTIRE FIELD
EMBRACED BY THE LOCAL ANTI-TRUST ACT, AND THE LATTER, THEREFORE, WAS
VOID.  THE SUPREME COURT OF PUERTO RICO ACCEPTED THAT VIEW AND
DISMISSED THE APPEAL; AND ITS JUDGMENT WAS AFFIRMED ON APPEAL BY THE
COURT BELOW.  86 F.(2D) 577.  THE SINGLE QUESTION WHICH WE HAVE TO
DECIDE IS WHETHER THE EXISTENCE OF SEC. 3 OF THE SHERMAN ACT PRECLUDED
THE ADOPTION OF THE LOCAL ACT BY THE INSULAR LEGISLATURE. 

THE PERTINENT PROVISIONS OF THE SHERMAN ACT AND THE LOCAL ACT ARE SET
FORTH IN THE MARGIN.  FN1 SECTION 3 OF THE SHERMAN ACT AND SEC. 1 OF
THE LOCAL ACT, SO FAR AS THE QUESTION HERE INVOLVED IS CONCERNED, ARE
SUBSTANTIALLY IDENTICAL.  SECTION 4 OF THE SHERMAN ACT CONFERS
JURISDICTION IN RESPECT OF VIOLATIONS OF THE ACT UPON THE SEVERAL
DISTRICT COURTS OF THE UNITED STATES.  SECTION 3 OF THE LOCAL ACT
CONFERS JURISDICTION UPON THE DISTRICT COURTS OF PUERTO RICO IN RESPECT
OF VIOLATIONS OF THAT ACT. 

FIRST.  SECTION 3 OF THE SHERMAN ACT EXTENDS TO "ANY TERRITORY OF THE
UNITED STATES."  BUT IT IS URGED THAT PUERTO RICO CANNOT BE BROUGHT
WITHIN THE INTENT OF THIS PHRASE, AND, THEREFORE, THE SECTION DOES NOT
APPLY TO THAT DEPENDENCY.  THE POINT IS NOT WELL MADE.  WHEN THE
SHERMAN ACT WAS PASSED (1890), WE HAD NO INSULAR DEPENDENCIES; AND,
NECESSARILY, THE APPLICATION OF SEC. 3 DID NOT EXTEND BEYOND OUR
CONTINENTAL DOMAIN; AND, UNDOUBTEDLY, IT WAS THIS DOMAIN WHICH WAS IN
THE IMMEDIATE CONTEMPLATION OF CONGRESS.  CERTAINLY, CONGRESS AT THAT
TIME DID NOT HAVE PUERTO RICO IN MIND.  BUT THAT IS NOT ENOUGH.  IT IS
NECESSARY TO GO FURTHER AND TO SAY THAT IF THE ACQUISITION OF THAT
INSULAR DEPENDENCY HAD BEEN FORESEEN, CONGRESS WOULD HAVE SO VARIED ITS
COMPREHENSIVE LANGUAGE AS TO EXCLUDE IT FROM THE OPERATION OF THE ACT. 
DARTMOUTH COLLEGE V. WOODWARD, 4 WHEAT.  518, 644; TAKAO OZAWA V.
UNITED STATES, 260 U.S. 178, 195-196; UNITED STATES V. THIND, 261 U.S.
204, 207-208.  THE ONLY QUESTION, THEREFORE, IS WHETHER THE WORD
"TERRITORY," AS USED IN SEC. 3 OF THE SHERMAN ACT, PROPERLY CAN BE
APPLIED TO A DEPENDENCY NOW BEARING THE RELATION TO THE UNITED STATES
WHICH IS BORNE BY PUERTO RICO. 

IN BALZAC V. PORTO RICO, 258 U.S. 298, 304-305, IT WAS HELD THAT,
ALTHOUGH THE SIXTH AMENDMENT OF THE CONSTITUTION WITH RESPECT TO THE
RIGHT OF TRIAL BY JURY APPLIED TO THE TERRITORIES OF THE UNITED STATES,
IT DID NOT APPLY TO TERRITORY BELONGING TO THE UNITED STATES WHICH HAD
NOT BEEN INCORPORATED INTO THE UNION; AND THAT NEITHER THE PHILIPPINES
NOR PORTO RICO WAS TERRITORY WHICH HAD BEEN SO INCORPORATED OR HAD
BECOME A PART OF THE UNITED STATES, AS DISTINGUISHED FROM MERELY
BELONGING TO IT.  BUT IT IS EVIDENT, FROM A CONSIDERATION OF THE
PERTINENT ACTS OF CONGRESS AND THE DECISIONS OF THIS COURT WITH RESPECT
TO THESE ACTS, THAT WHETHER PUERTO RICO COMES WITHIN A GIVEN
CONGRESSIONAL ACT APPLICABLE IN TERMS TO A "TERRITORY," DEPENDS UPON
THE CHARACTER AND AIM OF THE ACT.  WORDS GENERALLY HAVE DIFFERENT
SHADES OF MEANING, AND ARE TO BE CONSTRUED IF REASONABLY POSSIBLE TO
EFFECTUATE THE INTENT OF THE LAWMAKERS; AND THIS MEANING IN PARTICULAR
INSTANCES IS TO BE ARRIVED AT NOT ONLY BY A CONSIDERATION OF THE WORDS
THEMSELVES, BUT BY CONSIDERING, AS WELL, THE CONTEXT, THE PURPOSES OF
THE LAW, AND THE CIRCUMSTANCES UNDER WHICH THE WORDS WERE EMPLOYED. 
ATLANTIC CLEANERS & DYERS V. UNITED STATES, 286 U.S. 427, 433;
HELVERING V. STOCKHOLMS ENSKILDA BANK, 293 U.S. 84, 86, 87-88.  THUS,
ALTHOUGH PUERTO RICO IS NOT A TERRITORY WITHIN THE REACH OF THE SIXTH
AND SEVENTH AMENDMENTS AND MAY NOT BE A "TERRITORY" WITHIN THE MEANING
OF THE WORD AS USED IN SOME STATUTES, WE HELD IN KOPEL V. BINGHAM, 211
U.S. 468, 474, 475, 476, THAT PUERTO RICO WAS A "TERRITORY" WITHIN THE
MEANING OF SEC. 5278 OF THE REVISED STATUTES, WHICH PROVIDES FOR THE
DEMAND AND SURRENDER OF FUGITIVE CRIMINALS BY GOVERNORS OF TERRITORIES
AS WELL AS OF STATES.  THE COURT SAID THAT IT WAS IMPOSSIBLE TO HOLD
THAT PUERTO RICO WAS NOT INTENDED TO HAVE POWER TO RECLAIM FUGITIVES
FROM ITS JUSTICE, OR THAT IT WAS INTENDED THAT IT SHOULD BE AN ASYLUM
FOR FUGITIVES FROM THE UNITED STATES.  THE WORD "TERRITORY" AS USED IN
THAT STATUTE WAS DEFINED AS MEANING "A PORTION OF THE COUNTRY NOT
INCLUDED WITHIN THE LIMITS OF ANY STATE, AND NOT YET ADMITTED AS A
STATE INTO THE UNION, BUT ORGANIZED UNDER THE LAWS OF CONGRESS WITH A
SEPARATE LEGISLATURE UNDER A TERRITORIAL GOVERNOR AND OTHER OFFICERS
APPOINTED BY THE PRESIDENT AND SENATE OF THE UNITED STATES."  AND THE
COURT CONCLUDED, "IT MAY BE JUSTLY ASSERTED THAT PORTO RICO IS A
COMPLETELY ORGANIZED TERRITORY, ALTHOUGH NOT A TERRITORY INCORPORATED
INTO THE UNITED STATES, AND THAT THERE IS NO REASON WHY PORTO RICO
SHOULD NOT BE HELD TO BE SUCH A TERRITORY AS IS COMPRISED IN SEC.
5278."  SEE PORTO RICO V. ROSALY Y CASTILLO, 227 U.S. 270, 274. 
COMPARE TALBOTT V. SILVER BOW COUNTY, 139 U.S. 438, 444-445. 

WITH EQUAL FORCE, IT MAY BE SAID HERE THAT THERE IS NO REASON WHY
PUERTO RICO SHOULD NOT BE HELD TO BE A "TERRITORY" WITHIN THE MEANING
OF SEC. 3 OF THE SHERMAN ACT.  WE POINTED OUT IN THE ATLANTIC CLEANERS
& DYERS CASE, SUPRA, P. 435, THAT IN THE LIGHT OF THE APPLICABLE
HISTORY AND CIRCUMSTANCES, IT WAS APPARENT THAT CONGRESS MEANT TO DEAL
COMPREHENSIVELY WITH THE SUBJECT OF CONTRACTS, COMBINATIONS, AND
CONSPIRACIES IN RESTRAINT OF TRADE, "AND TO THAT END TO EXERCISE ALL
THE POWER IT POSSESSED"; THAT WHILE CONGRESS IN PASSING SEC. 1
EXERCISED ONLY THE POWER CONFERRED BY THE COMMERCE CLAUSE, IN PASSING
SEC. 3 IT EXERCISED A GENERAL POWER, UNLIMITED BY THAT CLAUSE.  WE
THEREFORE CONCLUDED THAT THE WORD "TRADE" AS USED IN SEC. 3 SHOULD BE
GIVEN A MORE EXTENDED MEANING THAN THE SAME WORD AS USED IN SEC. 1. 

IF, AS WE THERE DETERMINED, CONGRESS INTENDED BY THE SHERMAN ACT TO
EXERT ALL THE POWER IT POSSESSED IN RESPECT OF THE SUBJECT MATTER -
TRADE AND COMMERCE - , IT IS EQUALLY REASONABLE TO CONCLUDE THAT
CONGRESS INTENDED TO INCLUDE ALL TERRITORIES TO WHICH ITS POWERS MIGHT
EXTEND.  THE SAME REASON WHICH REQUIRES THE UTMOST LIBERALITY OF
CONSTRUCTION IN RESPECT OF THE WORD "TRADE," ALSO REQUIRES THE SAME
DEGREE OF LIBERALITY OF CONSTRUCTION IN RESPECT OF THE WORD
"TERRITORY"; AND WE HOLD, ACCORDINGLY, THAT THE WORD "TERRITORY" WAS
USED IN ITS MOST COMPREHENSIVE SENSE, AS EMBRACING ALL ORGANIZED
TERRITORIES, WHETHER INCORPORATED INTO THE UNITED STATES OR NOT,
INCLUDING PUERTO RICO. 

SECOND.  THE COURT BELOW HELD THAT ALTHOUGH SEC. 1 OF THE LOCAL ACT
CONTAINED SOME WORDS NOT TO BE FOUND IN SEC. 3 OF THE SHERMAN ACT, THE
PERTINENT PROVISIONS WERE IN SUBSTANCE THE SAME; THAT THE ACT CHARGED
IN THE INFORMATION AS A CRIME UNDER THE LOCAL STATUTE WAS THE SAME AS
THAT DENOUNCED AS A CRIME IN THE SHERMAN ACT; AND THAT IN EACH INSTANCE
THE OFFENSE WAS A CRIME AGAINST THE SOVEREIGNTY OF THE UNITED STATES. 
WITH THAT VIEW WE AGREE.  BUT THAT COURT CONCLUDED THAT THE ACT OF
CONGRESS PREEMPTED THE GROUND OCCUPIED BY THE LOCAL ACT AND SUPERSEDED
IT; AND CONSEQUENTLY THE LOCAL DISTRICT COURT WAS WITHOUT JURISDICTION
OF THE OFFENSE.  WITH THAT CONCLUSION WE ARE UNABLE TO AGREE. 

1.  SECTION 14 OF THE FORAKER ACT, PASSED APRIL 12, 1900, C. 191, 31
STAT. 77, 80, PROVIDED THAT THE STATUTORY LAWS OF THE UNITED STATES,
NOT LOCALLY INAPPLICABLE, SHOULD HAVE THE SAME FORCE AND EFFECT IN
PUERTO RICO AS IN THE UNITED STATES, WITH CERTAIN EXCEPTIONS NOT
MATERIAL HERE.  SECTION 27(P. 82) PROVIDED "THAT ALL LOCAL LEGISLATIVE
POWERS HEREBY GRANTED SHALL BE VESTED IN A LEGISLATIVE ASSEMBLY  ..." 
AND BY SEC. 32(P. 83-84), IT WAS PROVIDED THAT THE LEGISLATIVE
AUTHORITY "SHALL EXTEND TO ALL MATTERS OF A LEGISLATIVE CHARACTER NOT
LOCALLY INAPPLICABLE  ..."  THESE VARIOUS PROVISIONS ARE CONTINUED IN
FORCE BY SECS. 9, 25 AND 37 OF THE ORGANIC ACT OF MARCH 2, 1917, C.
145, 39 STAT. 951.  THESE PROVISIONS DO NOT DIFFER IN SUBSTANCE FROM
THE VARIOUS PROVISIONS RELATING TO THE POWERS OF THE ORGANIZED AND
INCORPORATED CONTINENTAL TERRITORIES OF THE UNITED STATES, IN RESPECT
OF WHICH THIS COURT SAID IN CLINTON V. ENGLEBRECHT, 13 WALL.  434, 441,
THAT THE THEORY UPON WHICH THESE TERRITORIES HAVE BEEN ORGANIZED "HAS
EVER BEEN THAT OF LEAVING TO THE INHABITANTS ALL THE POWERS OF SELF
GOVERNMENT CONSISTENT WITH THE SUPREMACY AND SUPERVISION OF NATIONAL
AUTHORITY, AND WITH CERTAIN FUNDAMENTAL PRINCIPLES ESTABLISHED BY
CONGRESS"; AND IN HORNBUCKLE V. TOOMBS, 18 WALL.  648, 655-656, WE
SAID:  "THE POWERS THUS EXERCISED BY THE TERRITORIAL LEGISLATURES ARE
NEARLY AS EXTENSIVE AS THOSE EXERCISED BY ANY STATE LEGISLATURE."  SEE
ALSO COPE V. COPE, 137 U.S. 682, 684, WHERE THIS COURT, SPEAKING OF
THIS TYPICAL GENERAL PROVISION CONTAINED IN THE UTAH ORGANIC ACT, SAID
THAT, WITH THE EXCEPTIONS NOTED IN THE PROVISION ITSELF, "THE POWER OF
THE TERRITORIAL LEGISLATURE WAS APPARENTLY AS PLENARY AS THAT OF THE
LEGISLATURE OF A STATE."  IN MAYNARD V. HILL, 125 U.S. 190, 204, THE
ESSENTIAL SIMILARITY OF THE VARIOUS PROVISIONS IN RESPECT OF THE POWERS
OF TERRITORIAL LEGISLATURES WAS POINTED OUT, AND IT WAS SAID THAT WHAT
WERE "RIGHTFUL SUBJECTS OF LEGISLATION" WAS TO BE DETERMINED "BY AN
EXAMINATION OF THE SUBJECTS UPON WHICH LEGISLATURES HAD BEEN IN THE
PRACTICE OF ACTING WITH THE CONSENT AND APPROVAL OF THE PEOPLE THEY
REPRESENTED." 

THE GRANT OF LEGISLATIVE POWER IN RESPECT OF LOCAL MATTERS, CONTAINED
IN SEC. 32 OF THE FORAKER ACT AND CONTINUED IN FORCE BY SEC. 37 OF THE
ORGANIC ACT OF 1917, IS AS BROAD AND COMPREHENSIVE AS LANGUAGE COULD
MAKE IT.  THE PRIMARY QUESTION POSED BY THE CHALLENGE TO THE VALIDITY
OF THE ACT UNDER CONSIDERATION IS WHETHER THE MATTER COVERED BY THE ACT
IS ONE "OF A LEGISLATIVE CHARACTER NOT LOCALLY INAPPLICABLE."  IT
REQUIRES NO ARGUMENT TO DEMONSTRATE THAT A CONSPIRACY IN RESTRAINT OF
TRADE WITHIN THE BORDERS OF PUERTO RICO IS CLEARLY A LOCAL MATTER, AND
THAT IT FALLS WITHIN THE PRECISE TERMS OF THE POWER GRANTED BY SECS. 32
AND 37 OF THE RESPECTIVE ACTS IN WHICH THE GRANT IS FOUND.  THE POWER
BEING GIVEN WITHOUT EXPRESS LIMITATION, A CONCLUSION THAT THE PRESENT
EXERCISE OF THE POWER IS PRECLUDED BY THE EXISTENCE OF SEC. 3 OF THE
SHERMAN ACT MUST REST UPON THE ASSUMPTION THAT A CONGRESSIONAL STATUTE
PENALIZING SPECIFIC LOCAL BEHAVIOR AND A STATUTE OF PUERTO RICO TO THE
SAME EFFECT CANNOT COEXIST.  WITH DUE REGARD TO THE STATUS OF THE
TERRITORY, THE CHARACTER OF ITS ESTABLISHED GOVERNMENT, THE POSITIVE
TERMS OF THE CONGRESSIONAL GRANT OF POWER, AND THE LACK OF CONFLICT
BETWEEN THE TWO ACTS, THAT ASSUMPTION MUST BE REJECTED. 

2.  THE AIM OF THE FORAKER ACT AND THE ORGANIC ACT WAS TO GIVE PUERTO
RICO FULL POWER OF LOCAL SELF-DETERMINATION, WITH AN AUTONOMY SIMILAR
TO THAT OF THE STATES AND INCORPORATED TERRITORIES.  GROMER V. STANDARD
DREDGING CO., 224 U.S. 362, 370; PORTO RICO V. ROSALY Y CASTILLO,
SUPRA, P. 274.  THE EFFECT WAS TO CONFER UPON THE TERRITORY MANY OF THE
ATTRIBUTES OF QUASI-SOVEREIGNTY POSSESSED BY THE STATES - AS, FOR
EXAMPLE, IMMUNITY FROM SUIT WITHOUT THEIR CONSENT.  PORTO RICO V.
ROSALY Y CASTILLO, SUPRA.  BY THOSE ACTS, THE TYPICAL AMERICAN
GOVERNMENTAL STRUCTURE, CONSISTING OF THE THREE INDEPENDENT DEPARTMENTS
- LEGISLATIVE, EXECUTIVE AND JUDICIAL - WAS ERECTED.  "A BODY POLITIC"
A COMMONWEALTH - WAS CREATED.  31 STAT. 79, SEC. 7, C. 191.  THE POWER
OF TAXATION, THE POWER TO ENACT AND ENFORCE LAWS, AND OTHER
CHARACTERISTICALLY GOVERNMENTAL POWERS WERE VESTED.  AND SO FAR AS
LOCAL MATTERS ARE CONCERNED, AS WE HAVE ALREADY SHOWN IN RESPECT OF THE
CONTINENTAL TERRITORIES, LEGISLATIVE POWERS WERE CONFERRED NEARLY, IF
NOT QUITE, AS EXTENSIVE AS THOSE EXERCISED BY THE STATE LEGISLATURES. 

THIS COMPREHENSIVE GRANT OF LEGISLATIVE POWER MADE BY CONGRESS
PLAINLY RECOGNIZES THE GREAT DESIRABILITY OF DEVOLVING UPON THE LOCAL
GOVERNMENT THE RESPONSIBILITY OF SEARCHING OUT LOCAL OFFENSES AND
PROSECUTING THEM IN THE LOCAL TRIBUNALS.  THE INSULAR SUPREME COURT IN
THIS CASE DECLARED IN EMPHATIC TERMS THE WISDOM OF SUCH LOCAL CONTROL
IN RESPECT OF THE MATTER DEALT WITH BY THE ACT IN QUESTION.  ALTHOUGH
STRIKING DOWN, WITH EVIDENT RELUCTANCE, THE ACT AS INVALID, THAT COURT
SAID:  "THE RIGHT OF THE INSULAR LEGISLATURE AND OFFICERS TO PROSECUTE
AND PUNISH SUCH MONOPOLIES AS MAY BE SET UP WITHIN OUR JURISDICTION IS
REALLY INESTIMABLE.  IT WAS SO UNDERSTOOD BY OUR LEGISLATURE WHEN IT
TOOK UPON ITSELF TO LEGISLATE ON THE SUBJECT.  THIS IS A WHOLESOME AND
NECESSARY LEGISLATION THAT SHOULD BE ENFORCED THROUGH THE INSULAR
COURTS.  IT MUST BE ADMITTED THAT THE PEOPLE OF PUERTO RICO HAS A
SPECIAL INTEREST IN PROSECUTING BEFORE THE COURTS THOSE CITIZENS WHO
VIOLATE ITS OWN LAWS.  NO MATTER HOW INTERESTED THE NATIONAL GOVERNMENT
MAY BE IN PROSECUTING SUCH OFFENSES, INSTANCES MIGHT OCCUR WHERE THE
LATTER WOULD PASS UNNOTICED BY THE FEDERAL OFFICERS, OR WHERE, FOR SOME
REASON OR OTHER, SUCH OFFICERS MIGHT NOT DISPLAY THE SAME ACTIVITY AND
INTEREST THAT IS TO BE EXPECTED FROM THE LOCAL OFFICIALS."    3.  IN
THE LIGHT OF THE FOREGOING CONSIDERATIONS, INCLUDING THE SWEEPING
CHARACTER OF THE CONGRESSIONAL GRANT OF POWER CONTAINED IN THE FORAKER
ACT AND THE ORGANIC ACT OF 1917, THE GENERAL PURPOSE OF CONGRESS TO
CONFER POWER UPON THE GOVERNMENT OF PUERTO RICO TO LEGISLATE IN RESPECT
OF ALL LOCAL MATTERS IS MADE MANIFEST.  IN THIS CONNECTION IT IS
SIGNIFICANT THAT THE ONLY EXPRESS LIMITATION UPON THE POWER IS THAT, IN
CERTAIN OF ITS ASPECTS, IT SHALL BE EXERCISED CONSISTENTLY WITH THE
PROVISIONS OF THE RESPECTIVE ACTS.  SEE SECS. 37, 57 OF THE ORGANIC
ACT, AND SEC. 32 OF THE FORAKER ACT.  NOTHING IS EXPRESSED IN THESE
ACTS OR, SO FAR AS WE ARE ADVISED, IN ANY OTHER FEDERAL ACT, WHICH
SUGGESTS A CONGRESSIONAL INTENT TO LIMIT THE EXERCISE OF THE POWER OF
LOCAL LEGISLATION TO THOSE SUBJECTS IN RESPECT OF WHICH THERE IS AN
ABSENCE OF EXPLICIT LEGISLATION BY CONGRESS; AND WE FIND NOTHING IN THE
NATURE OF THE POWER OR IN THE CONSEQUENCES LIKELY TO ENSUE FROM THE
DUPLICATE EXERCISE OF IT WHICH REQUIRES AN IMPLICATION TO THAT EFFECT. 

OUR ATTENTION IS CALLED TO CERTAIN DIFFERENCES OF LANGUAGE IN THE TWO
ACTS; AND IT IS URGED THAT THESE DIFFERENCES CREATE A "RISK" OF
CONFLICT OF INTERPRETATION BETWEEN THE LOCAL COURTS AND THE FEDERAL
DISTRICT COURTS.  THE FEAR OF CONFLICTING DECISIONS IS MORE FANCIFUL
THAN REAL, SINCE WE AGREE WITH THE COURT BELOW THAT THERE IS IN FACT NO
SUBSTANTIAL CONFLICT BETWEEN THE PERTINENT PROVISIONS OF THE TWO
STATUTES.  BUT IN THE UNLIKELY EVENT THAT, IN SPITE OF THIS CONCLUSION,
A CONFLICT OF DECISIONS SHALL ARISE, THE POWER OF THE FEDERAL APPELLATE
COURTS TO RESOLVE THAT CONFLICT IS CLEAR.  SECS. 128(A) AND 240,
JUDICIAL CODE, AS AMENDED BY THE ACT OF FEBRUARY 13, 1925, C. 229, 43
STAT. 936; 28 U.S.C. SECS. 225, 347. 

IT LIKEWISE IS CLEAR THAT THE LEGISLATIVE DUPLICATION GIVES RISE TO
NO DANGER OF A SECOND PROSECUTION AND CONVICTION, OR OF DOUBLE
PUNISHMENT FOR THE SAME OFFENSE.  THE RISK OF DOUBLE JEOPARDY  FN2
DOES NOT EXIST.  BOTH THE TERRITORIAL AND FEDERAL LAWS AND THE COURTS,
WHETHER EXERCISING FEDERAL OR LOCAL JURISDICTION, ARE CREATIONS
EMANATING FROM THE SAME SOVEREIGNTY.  SEE BALZAC V. PORTO RICO, SUPRA,
P. 312.  PROSECUTION UNDER ONE OF THE LAWS IN THE APPROPRIATE COURT,
NECESSARILY, WILL BAR A PROSECUTION UNDER THE OTHER LAW IN ANOTHER
COURT.  GRAFTON V. UNITED STATES, 206 U.S. 333.  IN THAT CASE, GRAFTON,
A SOLDIER IN THE ARMY, HAD BEEN ACQUITTED BY A GENERAL COURT MARTIAL
CONVENED IN THE PHILIPPINE ISLANDS OF A CRIME NOT CAPITAL, ALLEGED TO
HAVE BEEN COMMITTED IN VIOLATION OF THE 62D ARTICLE OF WAR. 
SUBSEQUENTLY, A CRIMINAL INFORMATION IN THE NAME OF THE UNITED STATES
WAS FILED IN A PHILIPPINE COURT OF FIRST INSTANCE, CHARGING HIM WITH
THE SAME OFFENSE COMMITTED IN VIOLATION OF A LOCAL LAW.  THIS COURT
HELD THAT THE ACQUITTAL OF THE ACCUSED BY THE COURT MARTIAL PRECLUDED
HIS BEING AGAIN TRIED FOR THE SAME OFFENSE IN THE CIVIL COURTS, FOR THE
REASON THAT HE WOULD THUS BE PUT TWICE IN JEOPARDY OF PUNISHMENT.  THE
62D ARTICLE OF WAR  FN3  WAS A FEDERAL STATUTE.  REVISED STATUTES, SEC.
1342.  THE GENERAL COURT MARTIAL WAS A FEDERAL TRIBUNAL.  THE
PHILIPPINE ACT WAS A LOCAL LAW; AND THE COURT OF FIRST INSTANCE WAS A
LOCAL COURT.  BUT BOTH OF THE LAWS AND BOTH OF THE COURTS OWED THEIR
EXISTENCE TO THE SAME SUPREME AUTHORITY.  THE SITUATION PRESENTED THERE
WAS, IN ALL ESSENTIALS, THE SAME AS THAT PRESENTED HERE.  THE DECISION
OF THE COURT IN THAT CASE RESTED UPON THE GROUND THAT THE ACCUSED,
HAVING BEEN ACQUITTED BY THE FEDERAL TRIBUNAL, COULD NOT BE SUBJECTED
TO PROSECUTION IN ANOTHER COURT, CIVIL OR MILITARY, OF THE SAME
SOVEREIGNTY.  WE HELD THAT ALTHOUGH THE SAME ACT MIGHT CONSTITUTE
DISTINCT OFFENSES AGAINST A STATE AND AGAINST THE UNITED STATES, FOR
BOTH OF WHICH THE ACCUSED MIGHT BE PROSECUTED, THAT RULE HAD NO
APPLICATION TO ACTS COMMITTED IN THE PHILIPPINE ISLANDS.  WE SAID (PP.
354-355), "THE GOVERNMENT OF A STATE DOES NOT DERIVE ITS POWERS FROM
THE UNITED STATES, WHILE THE GOVERNMENT OF THE PHILIPPINES OWES ITS
EXISTENCE WHOLLY TO THE UNITED STATES, AND ITS JUDICIAL TRIBUNALS EXERT
ALL THEIR POWERS BY AUTHORITY OF THE UNITED STATES.  THE JURISDICTION
AND AUTHORITY OF THE UNITED STATES OVER THAT TERRITORY AND ITS
INHABITANTS, FOR ALL LEGITIMATE PURPOSES OF GOVERNMENT, IS PARAMOUNT. 
SO THAT THE CASES HOLDING THAT THE SAME ACTS COMMITTED IN A STATE OF
THE UNION MAY CONSTITUTE AN OFFENSE AGAINST THE UNITED STATES AND ALSO
A DISTINCT OFFENSE AGAINST THE STATE, DO NOT APPLY HERE, WHERE THE TWO
TRIBUNALS THAT TRIED THE ACCUSED EXERT ALL THEIR POWERS UNDER AND BY
AUTHORITY OF THE SAME GOVERNMENT - THAT OF THE UNITED STATES." 

AN ATTEMPT IS MADE TO DISTINGUISH THE GRAFTON CASE ON THE GROUND THAT
BUT ONE STATUTE WAS THERE INVOLVED - NAMELY, THE STATUTE OF THE
PHILIPPINE ISLANDS - AND THAT BOTH THE GENERAL COURT MARTIAL AND THE
PHILIPPINE COURT UNDERTOOK TO ENFORCE THAT STATUTE.  OBVIOUSLY, THAT
VIEW IS INCORRECT.  THE COURT-MARTIAL PROCEEDING WAS NOT TO ENFORCE THE
PHILIPPINE LEGISLATION, BUT TO ENFORCE THE 62D ARTICLE OF WAR; AND THAT
ARTICLE WAS NONE THE LESS A FEDERAL LAW, DISTINCT FROM THE LOCAL LAW,
BECAUSE IT MIGHT BE NECESSARY TO REFER TO THE LOCAL LAW TO DETERMINE
WHETHER THE ACT CHARGED AGAINST THE SOLDIER WAS EMBRACED BY THE TERM
"CRIMES" IN THE 62D ARTICLE.  THIS IS WELL ILLUSTRATED BY SEC. 289 OF
THE CRIMINAL CODE (18 U.S.C. SEC. 468), WHICH, IN RESPECT OF OFFENSES
COMMITTED UPON PLACES SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE
UNITED STATES WITHIN THE LIMITS OF A STATE OR ORGANIZED TERRITORY OR
DISTRICT, MAKES APPLICABLE THE LAWS OF SUCH STATE, TERRITORY OR
DISTRICT IN RESPECT OF SUCH OFFENSES.  PROSECUTIONS UNDER THAT SECTION,
HOWEVER, ARE NOT TO ENFORCE THE LAWS OF THE STATE, TERRITORY OR
DISTRICT, BUT TO ENFORCE THE FEDERAL LAW, THE DETAILS OF WHICH, INSTEAD
OF BEING RECITED, ARE ADOPTED BY REFERENCE.  SEE UNITED STATES V. PRESS
PUBLISHING CO., 219 U.S. 1. 

4.  THE DECISIONS OF THE SUPREME COURTS OF FOUR STATES, RENDERED WHEN
THE STATES WERE NEWLY-CREATED FROM FORMER TERRITORIES, ARE, EXCEPT IN
ONE PARTICULAR, OF WHICH WE SHALL SPEAK LATER, IN HARMONY WITH THE
VIEWS WE HAVE EXPRESSED.  THOSE DECISIONS, THOUGH NOT CONCLUSIVE, ARE
ENTITLED TO GREAT WEIGHT, BECAUSE THEY DEALT WITH TERRITORIAL POWERS IN
OPERATION AT A TIME SO SHORTLY BEFORE THE RENDITION OF THE DECISIONS
THAT THE JUDGES WHO RENDERED THEM WELL MAY BE CREDITED WITH SUCH
KNOWLEDGE OF THE PURPOSE OF THESE POWERS AND THEIR HISTORY AND
APPLICATION, AS TO MAKE THESE JUDGES PECULIARLY COMPETENT TO DECIDE
QUESTIONS RELATING THERETO. 

THE SUPREME COURT OF WYOMING, IN A VERY FULL AND CAREFULLY DRAWN
OPINION, REACHED THE CONCLUSION THAT A STATUTE OF THAT TERRITORY
DEFINING AND PUNISHING THE CRIME OF BIGAMY WAS VALID AND ENFORCEABLE,
NOTWITHSTANDING THE FACT THAT AN ACT OF CONGRESS DEFINED AND PRESCRIBED
PUNISHMENT FOR THE SAME CRIME WHEN COMMITTED IN ANY OF THE
TERRITORIES.  IN RE MURPHY, 5 WYO. 297; 40 PAC. 398.  FOLLOWING ITS
DISCUSSION IN RESPECT OF THE RELATIONS BETWEEN THE NATIONAL AND
TERRITORIAL GOVERNMENTS, AND THE EXTENSIVE POWERS WHICH HAD BEEN
CONFERRED UPON THE LATTER, THAT COURT (5 WYO. 315; 40 PAC. 404)
CONCLUDED:  "...  THE CRIME OF BIGAMY AS DEFINED AND PUNISHABLE BY ACT
OF CONGRESS, IS A CRIME AGAINST THE SOVEREIGNTY OF THE UNITED STATES. 
THE ACT OF CONGRESS EMBRACES NO EXPRESS LIMITATION UPON THE RIGHT OF
THE TERRITORY TO ALSO PUNISH THE SAME ACT AS AN OFFENSE AGAINST IT AND
ITS LOCAL LAWS, NOR UPON THE LOCAL LEGISLATURE TO ENACT A LAW DEFINING
AND PROVIDING A PUNISHMENT THEREFOR AS AN OFFENSE AGAINST THE
TERRITORIAL SOVEREIGNTY.  AS THERE ARE IN PRACTICAL AND LEGAL EFFECT
TWO GOVERNMENTS, ALTHOUGH THE ONE EMANATES FROM THE OTHER, WE ARE
UNABLE TO PERCEIVE WHY THE LEGISLATURE OF THE TERRITORY UNDER THE
GENERAL GRANT OF POWER WITH WHICH IT WAS INVESTED, MAY NOT HAVE ENACTED
A VALID LAW ASSUMING TO PUNISH AS A TERRITORIAL OFFENSE THE CRIME OF
BIGAMY.  IT DOES NOT CONFLICT WITH THE UNITED STATES STATUTE.  IT COULD
NOT AND DID NOT ASSUME TO DESTROY THE FORCE OR EFFECT OF THE
CONGRESSIONAL PROVISION.  IT COULD NOT HAVE ASSUMED TO OFFER IMMUNITY
TO THOSE DESIRING TO CONTRACT POLYGAMOUS MARRIAGES.  BY SILENCE, IT
COULD ONLY HAVE REFUSED TO PUNISH IT AS A TERRITORIAL CRIME.  TO AVOID
THIS POSSIBILITY CONGRESS UNDERTOOK TO PUNISH IT AS A CRIME AGAINST THE
FEDERAL GOVERNMENT."  THAT DECISION WAS FOLLOWED BY THE SUPREME COURT
OF UTAH IN STATE V. NORMAN, 16 UTAH 457; 52 PAC. 986. 

THE WYOMING AND THE UTAH COURTS THOUGHT THAT PROSECUTION AND
PUNISHMENT COULD BE HAD UNDER BOTH STATUTES, AND ATTEMPTED TO JUSTIFY
THAT VIEW BY INVOKING THE RULE APPLICABLE TO STATE AND FEDERAL STATUTES
DENOUNCING THE SAME CRIMINAL ACTS.  THIS, OF COURSE, IN THE LIGHT OF
OUR LATER DECISION IN THE GRAFTON CASE, IS NOW SEEN TO BE ERRONEOUS;
BUT THE ERROR DOES NOT AFFECT THE ACCURACY OF THE REASONING AND
CONCLUSION OF THESE COURTS UPON THE MAIN POINT - THAT THE LOCAL STATUTE
WAS A VALID EXERCISE OF TERRITORIAL POWER, NOTWITHSTANDING THE
IDENTICAL LEGISLATION BY CONGRESS. 

IN TERRITORY V. GUYOTT, 9 MONT. 46; 22 PAC. 134, A TERRITORIAL
STATUTE MAKING IT A FELONY TO SELL, BARTER OR GIVE INTOXICATING LIQUOR
TO AN INDIAN, WAS SUSTAINED AGAINST THE CONTENTION THAT THE AUTHORITY
OF THE TERRITORY TO PASS THE STATUTE HAD BEEN FORECLOSED BY SEC. 2139
U.S. REV. STATS., WHICH DEFINES AND PUNISHES THE SAME OFFENSE. 

TERRITORY V. LONG BELL LUMBER CO., 22 OKLA. 890; 99 PAC. 911,
INVOLVED THE VALIDITY OF THE ANTI-TRUST ACT PASSED BY THE FORMER
TERRITORIAL LEGISLATURE.  SUITS WERE BROUGHT AGAINST THE DEFENDANTS,
CHARGING VIOLATIONS OF THE TERRITORIAL ACT, WHICH WERE ALSO VIOLATIONS
OF THE SHERMAN ACT.  THE COURT SUSTAINED THE VALIDITY OF THE
TERRITORIAL ACT, HOLDING THAT IT WAS NOT REPUGNANT TO OR IN CONFLICT
WITH THE FEDERAL ACT.  IN DOING SO, IT FOLLOWED THE REASONING OF, AND
RELIED UPON, THE WYOMING, MONTANA AND UTAH DECISIONS, ABOVE CITED. 

THE SUPREME COURT OF THE TERRITORY OF ARIZONA, IN TERRITORY V.
ALEXANDER, 11 ARIZ. 172; 89 PAC. 514, HAD BEFORE IT FOR CONSIDERATION A
BIGAMY STATUTE LIKE THAT INVOLVED IN THE WYOMING CASE, AND ERRONEOUSLY
HELD IT TO BE INVALID.  IN REACHING THAT CONCLUSION, IT EXPRESSLY
REJECTED THE WYOMING, UTAH AND MONTANA DECISIONS UPON THE AUTHORITY OF
DAVIS V. BEASON, 133 U.S. 333, A CASE WHICH WE SHALL PRESENTLY
CONSIDER. 

5.  THERE IS SOME GENERAL LANGUAGE IN EL PASO & N.E. RY. CO. V.
GUTIERREZ, 215 U.S. 87, AND DAVIS V. BEASON, SUPRA, WHICH, CONSIDERED
APART FROM THE QUESTION WHICH WAS INVOLVED AND APART FROM THE OPINIONS
IN THEIR ENTIRETY, SEEMS TO SUPPORT THE DECISION OF THE COURT BELOW IN
THE PRESENT CASE.  THE OPINION OF THE COURT BELOW AND THE ARGUMENT OF
RESPONDENTS HERE REST IN THE MAIN UPON THESE CASES.  AN EXAMINATION OF
THEM, HOWEVER, WILL SHOW THAT THEY HAVE BEEN MISUNDERSTOOD.  THE
GUTIERREZ CASE INVOLVED THE VALIDITY OF A STATUTE OF THE TERRITORY OF
NEW MEXICO, WHICH PROVIDED THAT NO ACTION FOR INJURIES INFLICTING DEATH
CAUSED BY ANY PERSON OR CORPORATION IN THE TERRITORY SHOULD BE
MAINTAINED UNLESS THE PERSON CLAIMING DAMAGES SHOULD, WITHIN 90 DAYS
AFTER THE INFLICTION OF THE INJURIES COMPLAINED OF AND 30 DAYS BEFORE
COMMENCING SUIT, SERVE UPON THE DEFENDANT AN AFFIDAVIT COVERING CERTAIN
SPECIFIED PARTICULARS.  THE STATUTE ALSO REQUIRED THAT SUIT MUST BE
BROUGHT WITHIN A YEAR AND IN A SPECIFIED DISTRICT COURT OF THE
TERRITORY.  THE STATUTE IS SET FORTH IN FULL IN THE MARGIN OF THE
OPINION OF THIS COURT IN ATCHISON, T. & S.F. RY. CO. V. SOWERS, 213
U.S. 55, 59-63.  AN ACTION WAS BROUGHT IN TEXAS BY ENEDINA GUTIERREZ
AGAINST THE RAILWAY COMPANY TO RECOVER DAMAGES FOR THE DEATH OF HER
INTESTATE.  THE ACCIDENT CAUSING THE DEATH HAPPENED IN NEW MEXICO, AND
THE RAILWAY COMPANY SET UP THE NEW MEXICO STATUTE BY WAY OF SPECIAL
PLEA AND ANSWER.  A WRIT OF ERROR BROUGHT HERE FOR REVIEW THE JUDGMENT
OF THE SUPREME COURT OF TEXAS HOLDING THAT THE CASE WAS CONTROLLED BY
THE FEDERAL EMPLOYERS' LIABILITY ACT, 34 STAT. 232, AND REFUSING TO
GIVE EFFECT TO THE NEW MEXICO STATUTE - A STATUTE WHICH WAS PLAINLY AN
ATTEMPTED RESTRICTION UPON THE RIGHT OF ACTION CONFERRED IN UNLIMITED
TERMS BY THE FEDERAL EMPLOYERS' LIABILITY ACT, AND, THEREFORE, IN
DIRECT CONFLICT WITH THAT ACT.  IN DECIDING THE QUESTION, THIS COURT
SAID THAT THERE COULD BE NO DOUBT THAT THE ACT OF CONGRESS "WOULD
NECESSARILY SUPERSEDE THE TERRITORIAL LAW REGULATING THE SAME
SUBJECT."  THIS IS BROAD LANGUAGE; BUT IT MUST BE CONSTRUED IN THE
LIGHT OF THE QUESTION PRESENTED, WHICH WAS WHETHER A TERRITORIAL ACT,
IN PLAIN CONFLICT WITH THE FEDERAL ACT, WAS VALID.  IN THAT SITUATION,
THE APPLICABLE RULE IS THAT FORMULATED BY CHIEF JUSTICE MARSHALL IN
COHENS V. VIRGINIA, 6 WHEAT.  264, 399, WHERE, SPEAKING FOR THIS COURT,
HE SAID:  "IT IS A MAXIM NOT TO BE DISREGARDED, THAT GENERAL
EXPRESSIONS, IN EVERY OPINION, ARE TO BE TAKEN IN CONNECTION WITH THE
CASE IN WHICH THOSE EXPRESSIONS ARE USED.  IF THEY GO BEYOND THE CASE,
THEY MAY BE RESPECTED, BUT OUGHT NOT TO CONTROL THE JUDGMENT IN A
SUBSEQUENT SUIT WHEN THE VERY POINT IS PRESENTED FOR DECISION."  SEE,
ALSO, HUMPHREY'S EXECUTOR V. UNITED STATES, 295 U.S. 602, 627, AND
CASES CITED.    IN THE COURSE OF THE OPINION RENDERED BY THIS COURT IN
DAVIS V. BEASON, SUPRA (P. 348), IT WAS SAID:  "THE CASES IN WHICH THE
LEGISLATION OF CONGRESS WILL SUPERSEDE THE LEGISLATION OF A STATE OR
TERRITORY, WITHOUT SPECIFIC PROVISIONS TO THAT EFFECT, ARE THOSE IN
WHICH THE SAME MATTER IS THE SUBJECT OF LEGISLATION BY BOTH.  THERE THE
ACTION OF CONGRESS MAY WELL BE CONSIDERED AS COVERING THE ENTIRE
GROUND."  THIS GENERALIZATION WAS NOT NECESSARY TO THE DECISION OF THE
CASE, AND, TAKEN LITERALLY, CANNOT STAND, BECAUSE, AS IN THE GUTIERREZ
CASE, IT OMITS THE ELEMENT OF ACTUAL CONFLICT BETWEEN THE TWO ACTS OF
LEGISLATION.  THE DECISION ITSELF SUSTAINED THE VALIDITY OF A STATUTE
PENALIZING ANY PERSON WHO TEACHES, ADVISES, COUNSELS OR ENCOURAGES THE
PRACTICE OF BIGAMY OR POLYGAMY, NOTWITHSTANDING THERE WAS A GENERAL ACT
OF CONGRESS WHICH HAD FOR ITS OBJECT THE SUPPRESSION OF BIGAMY AND
POLYGAMY IN THE TERRITORIES.  AND THE COURT SAID IN ITS OPINION (PAGE
341), THAT BIGAMY AND POLYGAMY ARE "CRIMES BY THE LAWS OF THE UNITED
STATES, AND THEY ARE CRIMES BY THE LAWS OF IDAHO"; AND FURTHER (PAGE
348), THAT THE ACT OF CONGRESS WAS A GENERAL LAW APPLICABLE TO ALL
TERRITORIES AND "DOES NOT PURPORT TO RESTRICT THE LEGISLATION OF THE
TERRITORIES OVER KINDRED OFFENSES OR OVER THE MEANS FOR THEIR
ASCERTAINMENT AND PREVENTION."  EACH OF THE TWO OBSERVATIONS WHICH WE
HAVE LAST QUOTED, MAY HAVE GONE BEYOND THE NECESSITIES OF THE CASE AND
MAY FALL WITHIN THE RULE ANNOUNCED BY CHIEF JUSTICE MARSHALL IN THE
COHENS CASE.  IN ANY EVENT, HOWEVER, THEY INDICATE THAT THE GENERAL
STATEMENT FIRST QUOTED IS NOT TO BE GIVEN THE SWEEPING EFFECT WHICH A
CATEGORICAL READING OF THE WORDS MIGHT AT FIRST SUGGEST. 

ONLY A WORD NEED BE SAID ABOUT DOMENECH V. NATIONAL CITY BANK, 294
U.S. 199, WHICH THE COURT BELOW THOUGHT LENT SUPPORT TO ITS JUDGMENT. 
THAT CASE INVOLVED THE VALIDITY OF A TAX SOUGHT TO BE IMPOSED BY PUERTO
RICO UPON A BRANCH OF A NATIONAL BANK ORGANIZED UNDER THE LAWS OF THE
UNITED STATES.  WE HELD THAT SEC. 5219 OF THE REVISED STATUTES WAS IN
FORCE IN PUERTO RICO AND THAT THAT SECTION FORBADE THE TAX.  THE GRANT
TO THE TERRITORY OF THE GENERAL POWER TO TAX DID NOT CONSTITUTE CONSENT
ON THE PART OF CONGRESS THAT A TAX NOT AUTHORIZED BY SEC. 5219 COULD BE
LAID; AND IT IS UPON THAT GROUND THAT OUR DECISION RESTS.  THE CONFLICT
BETWEEN THE TAX AND THE FEDERAL LAW WE REGARDED AS PLAIN. 

6.  FINALLY, IT IS CONTENDED THAT, IF THE LOCAL ANTI-TRUST ACT AND
THE SHERMAN ACT BOTH STAND, A CONFLICT OF JURISDICTION BETWEEN THE
FEDERAL COURTS AND THE LOCAL COURTS MAY RESULT.  BUT CLEARLY THERE IS
SLIGHT, IF ANY, GROUND FOR THE APPREHENSION.  THE LOCAL ACT SIMPLY
CONFERS JURISDICTION UPON THE LOCAL COURTS TO ENFORCE THAT ACT.  NO
ATTEMPT, OF COURSE, IS MADE TO CONFER JURISDICTION UPON THOSE COURTS TO
ENFORCE THE SHERMAN ACT, OR UPON THE FEDERAL COURTS TO ENFORCE THE
LOCAL ACT.  IT IS HARD TO SEE WHY A CONFLICT AS TO WHICH LAW SHALL BE
ENFORCED AND WHICH JURISDICTION SHALL BE INVOKED SHOULD EVER ARISE,
SINCE THE OFFICERS CHARGED WITH THE ADMINISTRATION AND ENFORCEMENT OF
BOTH ACTS ARE, IN THE LAST ANALYSIS, UNDER THE CONTROL OF THE SAME
SOVEREIGNTY AND, IT WELL MAY BE ASSUMED, WILL WORK IN HARMONY. 

WE CONCLUDE THAT THE ANTI-TRUST ACT OF PUERTO RICO IS VALID AND
ENFORCEABLE; AND, ACCORDINGLY THE JUDGMENT BELOW IS REVERSED. 

FN1  SHERMAN ACT (JULY 2, 1890, C. 647, 26 STAT. 209): 

"SEC. 3.  EVERY CONTRACT, COMBINATION IN FORM OF TRUST OR OTHERWISE,
OR CONSPIRACY, IN RESTRAINT OF TRADE OR COMMERCE IN ANY TERRITORY OF
THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, OR IN RESTRAINT OF
TRADE OR COMMERCE BETWEEN ANY SUCH TERRITORY AND ANOTHER, OR BETWEEN
ANY SUCH TERRITORY OR TERRITORIES AND ANY STATE OR STATES OR THE
DISTRICT OF COLUMBIA, OR WITH FOREIGN NATIONS, OR BETWEEN THE DISTRICT
OF COLUMBIA AND ANY STATE OR STATES OR FOREIGN NATIONS, IS HEREBY
DECLARED ILLEGAL.  EVERY PERSON WHO SHALL MAKE ANY SUCH CONTRACT OR
ENGAGE IN ANY SUCH COMBINATION OR CONSPIRACY, SHALL BE DEEMED GUILTY OF
A MISDEMEANOR, AND, ON CONVICTION THEREOF, SHALL BE PUNISHED BY FINE
NOT EXCEEDING $5,000 OR BY IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY
BOTH SAID PUNISHMENTS, IN THE DISCRETION OF THE COURT. 

"SEC. 4.  THE SEVERAL DISTRICT COURTS OF THE UNITED STATES ARE HEREBY
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...." 

BY SEC. 24(2) OF THE JUDICIAL CODE, 28 U.S.C. SEC. 41(2), THE
DISTRICT COURTS OF THE UNITED STATES ARE GIVEN JURISDICTION - "OF ALL
CRIMES AND OFFENSES COGNIZABLE UNDER THE AUTHORITY OF THE UNITED
STATES." 

THE PUERTO RICO ACT OF MARCH 14, 1907(LAWS 1907, P. 328): 

"SECTION 1.  EVERY CONTRACT, COMBINATION IN THE FORM OF TRUST OR
OTHERWISE, OR CONSPIRACY, IN RESTRAINT OF TRADE, COMMERCE, BUSINESS
TRANSACTIONS, AND LAWFUL AND FREE COMPETITION IN A TOWN, OR AMONG THE
SEVERAL TOWNS OF PUERTO RICO IS HEREBY DECLARED TO BE ILLEGAL.  EVERY
PERSON WHO SHALL MAKE ANY SUCH CONTRACT OR ENGAGE IN ANY SUCH
CONSPIRACY, SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND, ON CONVICTION
THEREOF, SHALL BE PUNISHED BY FINE NOT EXCEEDING FIVE THOUSAND DOLLARS,
OR BY IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BY BOTH SUCH PUNISHMENTS
IN THE DISCRETION OF THE COURT. 

.         .         .         .         . 

"SECTION 3.  THE DISTRICT COURTS OF THE ISLAND ARE HEREBY VESTED WITH
JURISDICTION TO PREVENT, PROHIBIT, ENJOIN AND PUNISH VIOLATIONS OF THIS
LAW; AND IT SHALL BE THE DUTY OF THE ATTORNEYS OF THE DISTRICT COURTS
OF THE ISLAND TO INSTITUTE PROCEEDINGS OF INJUNCTION OR ANY OTHER CIVIL
PROCEEDING TO PREVENT, PROHIBIT, ENJOIN, AND RESTRAIN SUCH
VIOLATIONS...." 

FN2  THE FIFTH AMENDMENT TO THE CONSTITUTION PROVIDES, "NOR SHALL ANY
PERSON BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF
LIFE OR LIMB."  SECTION 2(THE BILL OF RIGHTS) OF THE PUERTO RICO
ORGANIC ACT OF 1917, 39 STAT. 951, PROVIDES THAT "NO PERSON FOR THE
SAME OFFENSE SHALL BE TWICE PUT IN JEOPARDY OF PUNISHMENT." 

FN3  "ALL CRIMES NOT CAPITAL  ...  WHICH OFFICERS AND SOLDIERS MAY BE
GUILTY OF  ...  ARE TO BE TAKEN COGNIZANCE OF BY A GENERAL  ...  COURT
(MARTIAL),  ...  AND PUNISHED AT THE DISCRETION OF SUCH COURT." 
..END :










WILLING V. BINENSTOCK, 302 U.S. 272 


NO. 36.  ARGUED NOVEMBER 17, 1937.  - DECIDED DECEMBER 6, 1937.  - 88
F.(2D) 474, AFFIRMED IN PART - REVERSED IN PART. 


1.  IN PENNSYLVANIA, DEPOSITS TO THE CREDIT OF INDIVIDUAL MEMBERS OF A
PARTNERSHIP IN AN INSOLVENT BANK MAY BE SET OFF AGAINST AN OBLIGATION
OF THE PARTNERSHIP TO THE BANK.  P. 274. 

2.  NOTHING IN THE NATIONAL BANKING ACT OR IN ANY OTHER FEDERAL
STATUTE CONFLICTS WITH THE APPLICATION OF THIS RULE IN THE LIQUIDATION
OF AN INSOLVENT NATIONAL BANK IN PENNSYLVANIA.  P. 276. 

3.  A FEDERAL COURT WILL LEAN TOWARDS AGREEMENT WITH THE COURTS OF
THE STATE WHEN THE QUESTION SEEMS BALANCED WITH DOUBT.  P. 275. 

4.  A DEPOSITOR IN AN INSOLVENT NATIONAL BANK IS NOT ENTITLED TO SET
OFF HIS DEPOSIT AGAINST A SECONDARY LIABILITY AS INDORSER OF A NOTE THE
MAKER OF WHICH IS SOLVENT.  P. 276. 

5.  WHERE THE FACTS DISCLOSED BY THE RECORD ARE INSUFFICIENT TO
ENABLE THIS COURT TO DISPOSE OF A SUBSTANTIAL QUESTION, THE CASE MAY BE
REMANDED TO THE DISTRICT COURT FOR FURTHER CONSIDERATION OF THE
QUESTION, WITH AUTHORITY, IN ITS DISCRETION, TO TAKE FURTHER EVIDENCE
TO THAT END.  P. 277. 

WILLING, RECEIVER, V. BINENSTOCK ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 301 U.S. 678, TO REVIEW A DECREE AFFIRMING A DECREE, 18
F.SUPP.  262, IN FAVOR OF THE CLAIMANTS IN A SUIT AGAINST THE RECEIVER
OF A NATIONAL BANK. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT BROUGHT BY RESPONDENTS IN A FEDERAL DISTRICT COURT IN
PENNSYLVANIA SEEKING TO HAVE ALLOWED AS A SET-OFF AGAINST THE
INDEBTEDNESS OF THE PARTNERSHIP FIRM OF SWINGER AND BINENSTOCK TO THE
COMMERCIAL NATIONAL BANK THE AMOUNT OF A DEPOSIT IN THE BANK BY
SWINGER, NOW DECEASED, AND SO MUCH OF A DEPOSIT BY BINENSTOCK AS MIGHT
BE NECESSARY TO CANCEL THE INDEBTEDNESS.  THE BANK WAS ORGANIZED UNDER
THE NATIONAL BANKING ACT OF THE UNITED STATES, AND AS SUCH WAS ENGAGED
IN BUSINESS IN PENNSYLVANIA.  ON JANUARY 9, 1933, THE PARTNERSHIP
EXECUTED AND DELIVERED ITS PROMISSORY NOTE TO THE BANK IN THE SUM OF
$10,000; AND ON FEBRUARY 28, 1933, EXECUTED AND DELIVERED TO THE BANK
ITS FURTHER PROMISSORY NOTE IN THE SAME AMOUNT.  UNDER DATE OF JANUARY
25, 1933, ONE LUCIANO CAMMAROTA EXECUTED AND DELIVERED TO THE
PARTNERSHIP HIS PROMISSORY NOTE FOR $300, WHICH NOTE WAS ENDORSED AND
DISCOUNTED AT THE BANK. 

AT THE CLOSE OF BUSINESS ON FEBRUARY 28, SWINGER HAD ON DEPOSIT IN
THE BANK THE SUM OF $1,546.58, AND BINENSTOCK THE SUM OF $32,323.76. 
AT THE SAME TIME, THE PARTNERSHIP HAD ON DEPOSIT THE SUM OF $5,822.52. 
ON THAT DATE THE BANK BECAME INSOLVENT AND WAS TAKEN OVER BY THE
COMPTROLLER OF CURRENCY, WHO APPOINTED PETITIONER, WILLING, RECEIVER. 
PETITIONER, WHEN THE SUIT WAS BROUGHT, HAD REDUCED THE INDEBTEDNESS OF
THE PARTNERSHIP BY ALLOWING A SET-OFF OF THE AMOUNT OF THE PARTNERSHIP
DEPOSIT, BUT HAD FAILED AND REFUSED TO ALLOW AS A SET-OFF THE AMOUNTS
HERE IN CONTROVERSY. 

UPON THESE FACTS THE DISTRICT COURT SUSTAINED THE CLAIM OF
RESPONDENTS, 18 F.SUPP.  262, AND ENTERED A DECREE ALLOWING THE SET-OFF
OF THE INDIVIDUAL DEPOSITS AGAINST THE JOINT INDEBTEDNESS OF THE
PARTNERSHIP, ORDERING A CANCELLATION AND RETURN OF THE PARTNERSHIP
PROMISSORY NOTES, AND ALLOWING A CLAIM OF BINENSTOCK AGAINST THE ASSETS
OF THE BANK FOR THE AMOUNT OF HIS DEPOSIT, AFTER MAKING PROVISION FOR
THE SET-OFF.  THE DECREE ALSO DIRECTED PETITIONER TO ENDORSE, WITHOUT
RECOURSE, AND DELIVER TO BINENSTOCK, THE NOTE OF CAMMAROTA FOR $300. 
UPON APPEAL, THE COURT BELOW AFFIRMED.  88 F.(2D) 474.  THE DECREES IN
BOTH COURTS WERE BASED UPON WHAT WAS UNDERSTOOD AND DECLARED BY THEM TO
BE THE PENNSYLVANIA RULE UPON THE SUBJECT. 

THE CASE HAS BEEN ELABORATELY ARGUED UPON BOTH SIDES; BUT, IN RESPECT
OF THE PARTNERSHIP NOTES, WE FIND IT UNNECESSARY TO DO MORE THAN
CONSIDER AND DETERMINE THE QUESTION WHETHER THE COURTS BELOW CORRECTLY
STATED THE PENNSYLVANIA LAW ON THE SUBJECT AND WERE RIGHT IN FOLLOWING
IT AS THE CONTROLLING RULE OF DECISION. 

FIRST.  IN MILLER V. REED, 27 PA. 244, THE SUPREME COURT OF
PENNSYLVANIA HELD THAT, WHATEVER DISTINCTIONS OTHERWISE WOULD EXIST
BETWEEN JOINT CONTRACTS AND CONTRACTS JOINT AND SEVERAL, THESE
DISTINCTIONS, UNDER THE STATUTES OF THE STATE, HAD BEEN OBLITERATED. 
THESE STATUTES, IT WAS SAID (P. 249), "HAVE TAKEN AWAY DISTINCTIONS
THAT WERE ALWAYS EMBARRASSING, AND SOMETIMES INSUPERABLE OBSTACLES TO
THE COURSE OF JUSTICE.  THERE WAS NO DIFFERENCE IN THE DUTY BEFORE, AND
NONE IN THE REMEDY NOW.  THE MORAL OBLIGATION IS NOT AFFECTED BY THE
WORDS JOINT AND SEVERAL, AND IN PENNSYLVANIA AT LEAST, THE LEGAL
LIABILITY IS NOT."  IT, THEREFORE, MAKES NO DIFFERENCE HERE WHETHER THE
SWINGER AND BINENSTOCK NOTES WERE JOINT, OR JOINT AND SEVERAL. 

IN THE OPINION OF THE FEDERAL DISTRICT COURT IN THIS CASE, JUDGE
KIRKPATRICK SAID:  "THE LAW OF THE STATE OF PENNSYLVANIA, IF
APPLICABLE, WOULD CLEARLY SUSTAIN THE BILL.  THE DECISIONS OF THAT
STATE ALLOW INDIVIDUAL CLAIMS TO BE SET OFF IN EQUITY AGAINST A JOINT
LIABILITY EVEN THOUGH THE PARTY ASSERTING THE JOINT LIABILITY IS
SOLVENT.  STEWART V. COULTER, 12 SERG.  & R. (PA.)  252; COCHRAN V.
CUTTER, 18 PA. SUPER.  282.  SEE ALSO MINTZ V. TRI-COUNTY NATURAL GAS
COMPANY, 259 PA. 477."  HE HELD THE LAW APPLICABLE AND ENTERED THE
DECREE ACCORDINGLY.  THE COURT BELOW AFFIRMED ON THE AUTHORITY OF THE
OPINION OF THE DISTRICT JUDGE. 

PETITIONER CHALLENGES THIS VIEW OF THE DISTRICT JUDGE, ALBEIT
FAINTLY.  THE JUDGES OF BOTH COURTS BELOW HAVE HAD WIDE EXPERIENCE IN
THE FIELD OF PENNSYLVANIA LAW; AND, EVEN IF THE QUESTION WERE DOUBTFUL,
AS WE THINK IT IS NOT, WE SHOULD HAVE LITTLE HESITATION IN ACCEPTING
THEIR DETERMINATION AS TO THE STATE LAW ON THE POINT HERE UNDER
CONSIDERATION.  WE HAVE, HOWEVER, EXAMINED THE DECISIONS OF THE
PENNSYLVANIA COURTS, AND FULLY AGREE WITH THE COURTS BELOW AS TO THEIR
INTERPRETATION. 

SECOND.  WE HAVE NO OCCASION TO CONSIDER WHETHER SEC. 721 OF THE
REVISED STATUTES (28 U.S.C. SEC. 725) IS APPLICABLE.*UNDER SWIFT V.
TYSON, 16 PET. 1, IT WOULD NOT BE.  THAT CASE HAS BEEN MUCH CRITICIZED,
AND THE TENDENCY OF OUR DECISIONS WHICH HAVE FOLLOWED HAS BEEN TO LIMIT
IT SOMEWHAT STRICTLY.  AND ONE OF THE PRACTICAL RESTRICTIONS UPON THE
PRINCIPLE OF THAT CASE, WHICH WE HAVE MANY TIMES ANNOUNCED, IS THAT,
EVEN WHERE IT APPLIES, "FOR THE SAKE OF HARMONY AND TO AVOID CONFUSION,
THE FEDERAL COURTS WILL LEAN TOWARDS AN AGREEMENT OF VIEWS WITH THE
STATE COURTS IF THE QUESTION SEEMS TO THEM BALANCED WITH DOUBT." 
BURGESS V. SELIGMAN, 107 U.S. 20, 33-34; SIM V. EDENBORN, 242 U.S. 131,
135, AND AUTHORITIES CITED; TRAINOR CO. V. AETNA CASUALTY & SURETY CO.,
290 U.S. 47, 54-55; MUTUAL LIFE INS. CO. V. JOHNSON, 293 U.S. 335, 340;
COMMUNITY BLDG. CO. V. MARYLAND CASUALTY CO., 8 F.(2D) 678, 680.  EVEN
IF THERE WERE A CONFLICT BETWEEN THE DECISIONS OF THE STATE AND THOSE
OF THE LOWER FEDERAL COURTS, WE SHOULD BE FREE TO APPLY THE "HARMONY"
RULE AND FOLLOW THE STATE DECISIONS.  WE ARE, HOWEVER, UNABLE TO FIND
ANY SUCH CONFLICT. 

*SEC. 721.  "THE LAWS OF THE SEVERAL STATES, EXCEPT WHERE THE
CONSTITUTION, TREATIES, OR STATUTES OF THE UNITED STATES OTHERWISE
REQUIRE OR PROVIDE, SHALL BE REGARDED AS RULES OF DECISION IN TRIALS AT
COMMON LAW, IN THE COURTS OF THE UNITED STATES, IN CASES WHERE THEY
APPLY." 

THE CASE WHICH SEEMS MOST NEARLY IN POINT IS ROELKER V. BROMLEY
SHEPARD CO., 73 F.(2D) 618; AND THAT CASE, SO FAR AS IT GOES, IS IN
HARMONY WITH THE PENNSYLVANIA RULE.  THERE, THE COMPANY WAS INDEBTED TO
THE MIDDLESEX NATIONAL BANK IN THE SUM OF $5,000 ON A JOINT NOTE SIGNED
BY THE COMPANY AND SARAH BROMLEY SHEPARD.  ON THE DAY THE BANK CLOSED,
THE COMPANY HAD ON DEPOSIT IN THE BANK $5,611.10 AND SARAH BROMLEY
SHEPARD HAD ON DEPOSIT THE SUM OF $6,275.13.  THE COURT ORDERED THAT
$5,000 OF THE $5,611.10 DUE FROM THE BANK TO THE COMPANY BE SET OFF
AGAINST THE $5,000 DUE FROM THE COMPANY TO THE BANK ON THE JOINT NOTE,
HOLDING THAT WHERE JUSTICE REQUIRES AND THERE IS NO ADEQUATE REMEDY AT
LAW, AS WAS THE CASE THERE, A COURT OF EQUITY WILL ORDER A SET-OFF. 

THERE IS NOTHING IN THE NATIONAL BANKING ACT OR IN ANY OTHER FEDERAL
STATUTE WHICH CONFLICTS WITH THE PENNSYLVANIA RULE.  IN THE CASE OF AN
INSOLVENT BANK, THE NATIONAL BANKING ACT, 12 U.S.C. SEC. 194, SIMPLY
PROVIDES FOR A "RATABLE DIVIDEND" ON ALL PROVED OR ADJUDICATED CLAIMS. 
THIS COURT HELD IN SCOTT V. ARMSTRONG, 146 U.S. 499, 510, THAT THE
ALLOWANCE OF A VALID SET-OFF CANNOT BE CONSIDERED A PREFERENCE, AND
THAT ONLY THE BALANCE, AFTER DEDUCTION OF THE SET-OFF, CONSTITUTES PART
OF THE ASSETS OF THE INSOLVENT.  "THE REQUIREMENT," THE COURT SAID, "AS
TO RATABLE DIVIDENDS, IS TO MAKE THEM FROM WHAT BELONGS TO THE BANK,
AND THAT WHICH AT THE TIME OF THE INSOLVENCY BELONGS OF RIGHT TO THE
DEBTOR DOES NOT BELONG TO THE BANK." 

THIRD.  THE REASON FOR THE ORDER OF THE DISTRICT COURT REQUIRING THE
SURRENDER OF THE CAMMAROTA NOTE FOR $300 IS NOT CLEAR, BUT THE
REQUIREMENT SEEMS TO BE ERRONEOUS.  IT DOES NOT APPEAR FROM THE RECORD
WHETHER CAMMAROTA WAS SOLVENT OR INSOLVENT.  IF HE WAS SOLVENT, THE
PARTNERSHIP WAS NOT ENTITLED TO SET OFF ITS DEPOSITS AGAINST ITS
SECONDARY LIABILITY AS ENDORSER OF THE CAMMAROTA NOTE.  SEE WILLIAMS V.
ROSE, 218 FED. 898, 900; BANK OF UNITED STATES V. BRAVERMAN, 259 N.Y.
65, 68, ET SEQ.; 181 N.E. 50, AND AUTHORITIES CITED.  "TO ALLOW AN
INDORSER," THE NEW YORK COURT SAID, 259 N.Y., PP. 70-71, "TO SET OFF
HIS DEPOSIT WHEN THE MAKER IS SOLVENT AND ABLE TO INDEMNIFY THE
INDORSER AS IN THIS CASE WOULD ENABLE THE INDORSER TO COLLECT THE FULL
AMOUNT UNPAID ON THE NOTE FROM THE MAKER AND AT THE SAME TIME RECEIVE A
LARGER AMOUNT OF HIS DEPOSIT THAN OTHER DEPOSITORS.  SUCH A RESULT
WOULD BE INEQUITABLE."  AN EXCELLENT STATEMENT IN SUPPORT OF THE
FOREGOING VIEW, AND THE REASONS FOR IT, WILL BE FOUND IN THE OPINION
DELIVERED BY JUDGE PARKER IN SHANNON V. SUTHERLAND, 74 F.(2D) 530, 531
532. 

THE FACTS ARE NOT SUFFICIENTLY DISCLOSED BY THE RECORD TO ENABLE US
TO DISPOSE OF THIS ITEM.  THE OPINION OF NEITHER COURT DEALS WITH THE
SUBJECT, AND RESPONDENTS, NEITHER IN THEIR BRIEF NOR ORAL ARGUMENT,
HAVE HAD ANYTHING TO SAY ABOUT IT.  IN THESE CIRCUMSTANCES, THE CASE
MUST BE REMANDED TO THE DISTRICT COURT FOR FURTHER CONSIDERATION OF THE
QUESTION, WITH AUTHORITY, IN ITS DISCRETION, TO TAKE FURTHER EVIDENCE
TO THAT END.  WITH THAT EXCEPTION, THE DECREE BELOW IS APPROVED. 

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 
..END :


















BREEDLOVE V. SUTTLES, 302 U.S. 277 


NO. 9  ARGUED NOVEMBER 16, 17, 1937.  - DECIDED DECEMBER 6, 1937.  - 183
GA. 189 -  188 S.E. 140, AFFIRMED. 


1.  A GEORGIA STATUTE EXEMPTS ALL PERSONS UNDER 21 OR OVER 60 YEARS OF
AGE, AND ALL FEMALES WHO DO NOT REGISTER FOR VOTING, FROM A POLL TAX OF
$1.00 PER YEAR, WHICH IS LEVIED GENERALLY UPON ALL INHABITANTS, AND
WHICH, UNDER THE STATE CONSTITUTION, MUST BE PAID BY THE PERSON LIABLE,
TOGETHER WITH ARREARS, BEFORE HE CAN BE REGISTERED FOR VOTING.  HELD
THAT MALES WHO ARE NOT WITHIN THE EXEMPTION ARE NOT DENIED THE EQUAL
PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT.  PP. 281
282. 

2.  ON THE BASIS OF SPECIAL CONSIDERATION TO WHICH THEY ARE NATURALLY
ENTITLED, WOMEN AS A CLASS MAY BE EXEMPTED FROM POLL TAXES WITHOUT
EXEMPTING MEN.  P. 282. 

3.  SINCE THIS DISCRIMINATION IS PERMISSIBLE IN FAVOR OF ALL WOMEN, A
MAN SUBJECT TO THE TAX HAS NO STATUS TO COMPLAIN THAT, AMONG WOMEN, THE
TAX IS LEVIED ONLY ON THOSE WHO REGISTER TO VOTE, OR THAT REGISTRATION
IS ALLOWED TO THEM WITHOUT PAYING TAXES FOR PREVIOUS YEARS.  P. 282. 

4.  PAYMENT OF THE GEORGIA POLL TAX AS A PREREQUISITE TO VOTING IS
NOT REQUIRED FOR THE PURPOSE OF DENYING OR ABRIDGING THE PRIVILEGE OF
VOTING.  P. 282. 

5.  EXACTION OF PAYMENT OF POLL TAXES BEFORE REGISTRATION AS AN AID
TO COLLECTION IS A USE OF THE STATE'S POWER CONSISTENT WITH THE FEDERAL
CONSTITUTION.  P. 283. 

6.  VOTING IS A PRIVILEGE DERIVED NOT FROM THE UNITED STATES BUT FROM
THE STATE, WHICH MAY IMPOSE SUCH CONDITIONS AS IT DEEMS APPROPRIATE,
SUBJECT ONLY TO THE LIMITATIONS OF THE FIFTEENTH AND NINETEENTH
AMENDMENTS AND OTHER PROVISIONS OF THE FEDERAL CONSTITUTION.  P. 283. 

7.  A STATE LAW REQUIRING PAYMENT OF POLL TAXES AS A CONDITION TO
VOTING DOES NOT ABRIDGE ANY PRIVILEGE OR IMMUNITY PROTECTED BY THE
FOURTEENTH AMENDMENT.  P. 283. 

8.  THE NINETEENTH AMENDMENT, FORBIDDING DENIAL OR ABRIDGEMENT OF THE
RIGHT TO VOTE, ON ACCOUNT OF SEX, APPLIES EQUALLY IN FAVOR OF MEN AND
WOMEN, AND BY ITS OWN FORCE SUPERSEDES INCONSISTENT MEASURES, WHETHER
FEDERAL OR STATE.  P. 283. 

9.  IT WAS NOT THE PURPOSE OF THE NINETEENTH AMENDMENT TO LIMIT THE
TAXING POWER OF THE STATE.  P. 283. 

10. THE GEORGIA STATUTE LEVYING ON INHABITANTS OF THE STATE A POLL
TAX, PAYMENT WHEREOF IS MADE A PREREQUISITE TO VOTING, BUT EXEMPTING
FEMALES WHO DO NOT REGISTER FOR VOTING, DOES NOT ABRIDGE THE RIGHT OF
MALE CITIZENS TO VOTE, ON ACCOUNT OF THEIR SEX, AND IS NOT REPUGNANT TO
THE NINETEENTH AMENDMENT.  P. 284. 

BREEDLOVE V. SUTTLES, TAX COLLECTOR. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

APPEAL FROM A JUDGMENT WHICH AFFIRMED THE DISMISSAL OF APPELLANT'S
PETITION FOR A WRIT OF MANDAMUS REQUIRING THE APPELLEE TO ALLOW THE
APPELLANT TO REGISTER FOR VOTING FOR FEDERAL AND STATE OFFICERS AT
PRIMARY AND GENERAL ELECTIONS, WITHOUT PAYMENT OF POLL TAXES. 

THE APPELLANT CONTENDS THAT THE PRIVILEGE OF VOTING FOR FEDERAL
OFFICIALS IS ONE TO WHICH HE IS ENTITLED, UNRESTRICTED BY A TAX
UNREASONABLY IMPOSED THROUGH STATE INVASION OF HIS RIGHTS AS A CITIZEN
OF THE UNITED STATES.  AS SUCH CITIZEN HE IS ENTITLED TO PARTICIPATE IN
THE CHOICE OF ELECTORS OF THE PRESIDENT AND THE VICE PRESIDENT OF THE
UNITED STATES AND OF SENATORS AND REPRESENTATIVES IN CONGRESS AND NO
STATE MAY EXERCISE ITS TAXING POWER SO AS TO DESTROY THIS PRIVILEGE. 
IF THE TAX IMPOSED BY GEORGIA WERE INCREASED TO A HIGH DEGREE, AS IT
CAN BE IF VALID, IT COULD BE USED TO REDUCE THE PERCENTAGE OF VOTERS IN
THE POPULATION TO EVEN LESS THAN EIGHT PER CENT. AS AT PRESENT, OR TO
DESTROY THE ELECTIVE FRANCHISE ALTOGETHER.  WHATEVER PROPERTY AND OTHER
ECONOMIC RESTRICTIONS ON THE FRANCHISE MAY HAVE BEEN UPHELD IN EARLIER
PERIODS OF OUR HISTORY, THE ADMISSION TODAY THAT A STATE HAS THE POWER
TO PREVENT ITS POORER INHABITANTS FROM PARTICIPATING IN THE CHOICE OF
FEDERAL OFFICIALS WOULD BE TOTALLY CONTRARY TO THE CONTEMPORARY SPIRIT
OF AMERICAN INSTITUTIONS, AND INCONSISTENT WITH THE PURPOSES ANNOUNCED
IN THE PREAMBLE TO THE UNITED STATES CONSTITUTION. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

A GEORGIA STATUTE PROVIDES THAT THERE SHALL BE LEVIED AND COLLECTED
EACH YEAR FROM EVERY INHABITANT OF THE STATE BETWEEN THE AGES OF 21 AND
60 A POLL TAX OF ONE DOLLAR, BUT THAT THE TAX SHALL NOT BE DEMANDED
FROM THE BLIND OR FROM FEMALES WHO DO NOT REGISTER FOR VOTING.  GEORGIA
CODE, 1933, SEC. 92-108.  THE STATE CONSTITUTION DECLARES THAT TO
ENTITLE A PERSON TO REGISTER AND VOTE AT ANY ELECTION HE SHALL HAVE
PAID ALL POLL TAXES THAT HE MAY HAVE HAD OPPORTUNITY TO PAY AGREEABLY
TO LAW.  ART. II, SEC. I, PAR. III; CODE, SEC. 2-603.  THE FORM OF OATH
PRESCRIBED TO QUALIFY AN ELECTOR CONTAINS A CLAUSE DECLARING COMPLIANCE
WITH THAT REQUIREMENT.  SEC. 34-103.  TAX COLLECTORS MAY NOT ALLOW ANY
PERSON TO REGISTER FOR VOTING UNLESS SATISFIED THAT HIS POLL TAXES HAVE
BEEN PAID.  SEC. 34-114.  APPELLANT BROUGHT THIS SUIT IN THE SUPERIOR
COURT OF FULTON COUNTY TO HAVE THE CLAUSE OF THE CONSTITUTION AND THE
STATUTORY PROVISIONS ABOVE MENTIONED DECLARED REPUGNANT TO VARIOUS
PROVISIONS OF THE FEDERAL CONSTITUTION AND TO COMPEL APPELLEE TO ALLOW
HIM TO REGISTER FOR VOTING WITHOUT PAYMENT OF POLL TAXES.  THE COURT
DISMISSED HIS PETITION.  THE STATE SUPREME COURT AFFIRMED.  183 GA.
189; 188 S.E. 140. 

THE PERTINENT FACTS ALLEGED IN THE PETITION ARE THESE.  MARCH 16,
1936, APPELLANT, A WHITE MALE CITIZEN 28 YEARS OLD, APPLIED TO APPELLEE
TO REGISTER HIM FOR VOTING FOR FEDERAL AND STATE OFFICERS AT PRIMARY
AND GENERAL ELECTIONS.  HE INFORMED APPELLEE HE HAD NEITHER MADE POLL
TAX RETURNS NOR PAID ANY POLL TAXES AND HAD NOT REGISTERED TO VOTE
BECAUSE A RECEIPT FOR POLL TAXES AND AN OATH THAT HE HAD PAID THEM ARE
PREREQUISITES TO REGISTRATION.  HE DEMANDED THAT APPELLEE ADMINISTER
THE OATH, OMITTING THE PART DECLARING PAYMENT OF POLL TAXES, AND ALLOW
HIM TO REGISTER.  APPELLEE REFUSED. 

APPELLANT MAINTAINS THAT THE PROVISIONS IN QUESTION ARE REPUGNANT TO
THE EQUAL PROTECTION CLAUSE AND THE PRIVILEGES AND IMMUNITIES CLAUSE OF
THE FOURTEENTH AMENDMENT AND TO THE NINETEENTH AMENDMENT. 

1.  HE ASSERTS THAT THE LAW OFFENDS THE RULE OF EQUALITY IN THAT IT
EXTENDS ONLY TO PERSONS BETWEEN THE AGES OF 21 AND 60 AND TO WOMEN ONLY
IF THEY REGISTER FOR VOTING AND IN THAT IT MAKES PAYMENT A PREREQUISITE
TO REGISTRATION.  HE DOES NOT SUGGEST THAT EXEMPTION OF THE BLIND IS
UNREASONABLE. 

LEVY BY THE POLL HAS LONG BEEN A FAMILIAR FORM OF TAXATION, MUCH USED
IN SOME COUNTRIES AND TO A CONSIDERABLE EXTENT HERE, AT FIRST IN THE
COLONIES AND LATER IN THE STATES.  TO PREVENT BURDENS DEEMED GRIEVOUS
AND OPPRESSIVE, THE CONSTITUTIONS OF SOME STATES PROHIBIT OR LIMIT POLL
TAXES.  THAT OF GEORGIA PREVENTS MORE THAN A DOLLAR A YEAR.  ART VII,
SEC. II, PAR. III; CODE SEC. 2-5004.  POLL TAXES ARE LAID UPON PERSONS
WITHOUT REGARD TO THEIR OCCUPATIONS OR PROPERTY TO RAISE MONEY FOR THE
SUPPORT OF GOVERNMENT OR SOME MORE SPECIFIC END.  FN1  THE EQUAL
PROTECTION CLAUSE DOES NOT REQUIRE ABSOLUTE EQUALITY.  WHILE POSSIBLE
BY STATUTORY DECLARATION TO LEVY A POLL TAX UPON EVERY INHABITANT OF
WHATSOEVER SEX, AGE OR CONDITION, COLLECTION FROM ALL WOULD BE
IMPOSSIBLE FOR ALWAYS THERE ARE MANY TOO POOR TO PAY.  ATTEMPT EQUALLY
TO ENFORCE SUCH A MEASURE WOULD JUSTIFY CONDEMNATION OF THE TAX AS
HARSH AND UNJUST.  SEE FARIBAULT V. MISENER, 20 MINN. 396, 398;
THURSTON COUNTY V. TENINO STONE QUARRIES, 44 WASH. 351, 355; 87 PAC.
634; SALT LAKE CITY V. WILSON, 46 UTAH 60, 66, ET SEQ.; 148 PAC. 1104. 
COLLECTION FROM MINORS WOULD BE TO PUT THE BURDEN UPON THEIR FATHERS OR
OTHERS UPON WHOM THEY DEPEND FOR SUPPORT.  FN2  IT IS NOT UNREASONABLE
TO EXCLUDE THEM FROM THE CLASS TAXED. 

MEN WHO HAVE ATTAINED THE AGE OF 60 ARE OFTEN, IF NOT ALWAYS, EXCUSED
FROM ROAD WORK, JURY DUTY AND SERVICE IN THE MILITIA.  FN3  THEY HAVE
SERVED OR HAVE BEEN LIABLE TO BE CALLED ON TO SERVE THE PUBLIC TO THE
EXTENT THAT THE STATE CHOOSES TO REQUIRE.  SO FAR AS CONCERNS EQUALITY
UNDER THE EQUAL PROTECTION CLAUSE, THERE IS NO SUBSTANTIAL DIFFERENCE
BETWEEN THESE EXEMPTIONS AND EXEMPTION FROM POLL TAXES.  THE BURDEN
LAID UPON APPELLANT IS PRECISELY THAT PUT UPON OTHER MEN.  THE RATE IS
A DOLLAR A YEAR, COMMENCING AT 21 AND ENDING AT 60 YEARS OF AGE. 

THE TAX BEING UPON PERSONS, WOMEN MAY BE EXEMPTED ON THE BASIS OF
SPECIAL CONSIDERATIONS TO WHICH THEY ARE NATURALLY ENTITLED.  IN VIEW
OF BURDENS NECESSARILY BORNE BY THEM FOR THE PRESERVATION OF THE RACE,
THE STATE REASONABLY MAY EXEMPT THEM FROM POLL TAXES.  CF. MULLER V.
OREGON, 208 U.S. 412, 421, ET SEQ. QUONG WING V. KIRKENDALL, 223 U.S.
59, 63.  RILEY V. MASSACHUSETTS, 232 U.S. 671.  MILLER V. WILSON, 236
U.S. 373, BOSLEY V. MCLAUGHLIN, 236 U.S. 385.  THE LAWS OF GEORGIA
DECLARE THE HUSBAND TO BE THE HEAD OF THE FAMILY AND THE WIFE TO BE
SUBJECT TO HIM.  SEC. 53-501.  TO SUBJECT HER TO THE LEVY WOULD BE TO
ADD TO HIS BURDEN.  MOREOVER, GEORGIA POLL TAXES ARE LAID TO RAISE
MONEY FOR EDUCATIONAL PURPOSES, AND IT IS THE FATHER'S DUTY TO PROVIDE
FOR EDUCATION OF THE CHILDREN.  SEC. 74-105.  DISCRIMINATION IN FAVOR
OF ALL WOMEN BEING PERMISSIBLE, APPELLANT MAY NOT COMPLAIN BECAUSE THE
TAX IS LAID ONLY UPON SOME OR OBJECT TO REGISTRATION OF WOMEN WITHOUT
PAYMENT OF TAXES FOR PREVIOUS YEARS.  AETNA INSURANCE CO. V. HYDE, 275
U.S. 440, 447.  ROSENTHAL V. NEW YORK, 226 U.S. 260, 270. 

PAYMENT AS A PREREQUISITE IS NOT REQUIRED FOR THE PURPOSE OF DENYING
OR ABRIDGING THE PRIVILEGE OF VOTING.  IT DOES NOT LIMIT THE TAX TO
ELECTORS; ALIENS ARE NOT THERE PERMITTED TO VOTE, BUT THE TAX IS LAID
UPON THEM, IF WITHIN THE DEFINED CLASS.  IT IS NOT LAID UPON PERSONS 60
OR MORE YEARS OLD, WHETHER ELECTORS OR NOT.  EXACTION OF PAYMENT BEFORE
REGISTRATION UNDOUBTEDLY SERVES TO AID COLLECTION FROM ELECTORS
DESIRING TO VOTE, BUT THAT USE OF THE STATE'S POWER IS NOT PREVENTED BY
THE FEDERAL CONSTITUTION.  CF. MAGNANO CO. V. HAMILTON, 292 U.S. 40,
44. 

2.  TO MAKE PAYMENT OF POLL TAXES A PREREQUISITE OF VOTING IS NOT TO
DENY ANY PRIVILEGE OR IMMUNITY PROTECTED BY THE FOURTEENTH AMENDMENT. 
PRIVILEGE OF VOTING IS NOT DERIVED FROM THE UNITED STATES, BUT IS
CONFERRED BY THE STATE AND, SAVE AS RESTRAINED BY THE FIFTEENTH AND
NINETEENTH AMENDMENTS AND OTHER PROVISIONS OF THE FEDERAL CONSTITUTION,
THE STATE MAY CONDITION SUFFRAGE AS IT DEEMS APPROPRIATE.  MINOR V.
HAPPERSETT, 21 WALL.  162, 170 ET SEQ. EX PARTE YARBROUGH, 110 U.S.
651, 664-665.  MCPHERSON V. BLACKER, 146 U.S. 1, 37-38.  GUINN V.
UNITED STATES, 238 U.S. 347, 362.  THE PRIVILEGES AND IMMUNITIES
PROTECTED ARE ONLY THOSE THAT ARISE FROM THE CONSTITUTION AND LAWS OF
THE UNITED STATES AND NOT THOSE THAT SPRING FROM OTHER SOURCES. 
HAMILTON V. REGENTS, 293 U.S. 245, 261. 

3.  THE NINETEENTH AMENDMENT, ADOPTED IN 1920, DECLARES:  "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 SEX."  IT
APPLIES TO MEN AND WOMEN ALIKE AND BY ITS OWN FORCE SUPERSEDES
INCONSISTENT MEASURES, WHETHER FEDERAL OR STATE.  LESER V. GARNETT, 258
U.S. 130, 135.  ITS PURPOSE IS NOT TO REGULATE THE LEVY OR COLLECTION
OF TAXES.  THE CONSTRUCTION FOR WHICH APPELLANT CONTENDS WOULD MAKE THE
AMENDMENT A LIMITATION UPON THE POWER TO TAX.  CF. MINOR V. HAPPERSETT,
SUPRA, 173; BOWERS V. KERBAUGH-EMPIRE CO., 271 U.S. 170, 173-174.  THE
PAYMENT OF POLL TAXES AS A PREREQUISITE TO VOTING IS A FAMILIAR AND
REASONABLE REGULATION LONG ENFORCED IN MANY STATES AND FOR MORE THAN A
CENTURY IN GEORGIA.  FN4  THAT MEASURE REASONABLY MAY BE DEEMED
ESSENTIAL TO THAT FORM OF LEVY.  IMPOSITION WITHOUT ENFORCEMENT WOULD
BE FUTILE.  POWER TO LEVY AND POWER TO COLLECT ARE EQUALLY NECESSARY. 
AND, BY THE EXACTION OF PAYMENT BEFORE REGISTRATION, THE RIGHT TO VOTE
IS NEITHER DENIED NOR ABRIDGED ON ACCOUNT OF SEX.  IT IS FANCIFUL TO
SUGGEST THAT THE GEORGIA LAW IS A MERE DISGUISE UNDER WHICH TO DENY OR
ABRIDGE THE RIGHT OF MEN TO VOTE ON ACCOUNT OF THEIR SEX.  THE
CHALLENGED ENACTMENT IS NOT REPUGNANT TO THE NINETEENTH AMENDMENT. 
AFFIRMED. 

FN1  DOWELL, HISTORY OF TAXATION AND TAXES IN ENGLAND, VOL. III, C.
1.  BRYCE, THE AMERICAN COMMONWEALTH, C. XLIII.  COOLEY, THE LAW OF
TAXATION (4TH ED.)  SECS.  40, 1773.  HYLTON V. UNITED STATES, 3 DALL. 
171, 175, 182.  SHORT V. MARYLAND, 80 MD. 392, 397, ET SEQ.; 31 ATL.
322.  FARIBAULT V. MISENER, 20 MINN. 396. 

FN2  SECTION 74-105, GEORGIA CODE, DECLARES:  "UNTIL MAJORITY, (21
YEARS) IT IS THE DUTY OF THE FATHER TO PROVIDE FOR THE MAINTENANCE,
PROTECTION, AND EDUCATION OF HIS CHILD." 

FN3  IN GEORGIA, MEN ARE EXCUSED FROM ROAD WORK AT 50(SEC.  95-401)
FROM JURY DUTY AT 60(SEC.  59-112) AND FROM LIABILITY FOR SERVICE IN
THE MILITIA AT 45(SEC.  86-201; SEE ALSO SEC. 86-209). 

FN4  CONSTITUTION OF 1798, ART. IV, SEC. 1(2 THORPE, FEDERAL AND
STATE CONSTITUTIONS, P. 800).  ACT OF DEC. 12, 1804(COBB, NEW DIGEST
LAWS OF GEORGIA, P. 1044). 
..END :




















TEXAS V. DONOGHUE, 302 U.S. 284 


NO. 28.  ARGUED NOVEMBER 10, 1937.  - DECIDED DECEMBER 6, 1937.  - 88
F.(2D) 48, REVERSED. 


HELD, THAT THE BANKRUPTCY COURT, IN A PROCEEDING UNDER SEC. 77B OF THE
BANKRUPTCY ACT, ABUSED ITS DISCRETION IN DENYING A STATE PERMISSION TO
INSTITUTE PROCEEDINGS IN A STATE COURT TO HAVE ADJUDGED CONFISCATE A
QUANTITY OF OIL, THEN IN THE POSSESSION OF THE TRUSTEE OF THE DEBTOR,
BUT CLAIMED BY THE STATE TO HAVE BECOME ITS PROPERTY THROUGH STATUTORY
FORFEITURE WHEN, PRIOR TO THE APPROVAL OF THE DEBTOR'S PETITION, IT WAS
PRODUCED OR TRANSPORTED IN ALLEGED VIOLATION OF THE CONSERVATION LAWS
OF THE STATE.  P. 289. 

POSSESSION HAD BEEN VOLUNTARILY SURRENDERED TO THE BANKRUPTCY COURT
BY RECEIVERS APPOINTED BY A STATE COURT IN OTHER PROCEEDINGS BROUGHT BY
THE STATE. 

TEXAS ET AL. V. DONOGHUE, TRUSTEE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 301 U.S. 674, TO REVIEW A JUDGMENT AFFIRMING ORDERS OF
THE DISTRICT COURT IN A PROCEEDING UNDER SEC. 77B OF THE BANKRUPTCY
ACT. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THIS WRIT IS LIMITED TO THE QUESTIONS RAISED ON THE APPLICATION OF
TEXAS TO THE UNITED STATES COURT FOR THE NORTHERN DISTRICT OF THAT
STATE IN A PROCEEDING UNDER SEC. 77B OF THE BANKRUPTCY ACT FN1  FOR
PERMISSION TO INSTITUTE PROCEEDINGS IN A STATE COURT FOR THE
CONFISCATION OF OIL HELD BY THE TRUSTEE BUT CLAIMED BY THE STATE AS
"UNLAWFUL OIL" BECAUSE PRODUCED OR TRANSPORTED IN VIOLATION OF STATE
CONSERVATION MEASURES. 

TEXAS STATUTES  FN2  AND ORDERS OF ITS RAILROAD COMMISSION PURPORT TO
PRORATE PRODUCTION OF CRUDE OIL, TO PROHIBIT PURCHASE, TRANSPORTATION
OR HANDLING OF THAT PRODUCED IN WHOLE OR IN PART IN EXCESS OF THE
AMOUNT ALLOWED,  FN3  TO IMPOSE FINES AND PENALTIES FOR VIOLATIONS,
FN4  AND TO MAKE OIL PRODUCED OR TRANSPORTED IN VIOLATION OF STATUTE OR
ORDER SUBJECT TO CONFISCATION IN AN ACTION BROUGHT BY THE STATE FOR
THAT PURPOSE.  FN5  THE STATUTE DECLARES THAT IF AT THE TRIAL IT SHALL
BE FOUND THAT THE OIL IS UNLAWFUL, THE COURT SHALL RENDER JUDGMENT
FORFEITING THE SAME TO THE STATE AND AUTHORIZING AN ORDER DIRECTED TO
SHERIFF OR CONSTABLE COMMANDING HIM "TO SEIZE AND SELL" THE CONDEMNED
OIL.  COSTS OF SUIT AND EXPENSES OF THE SALE ARE TO BE PAID OUT OF
MONEY RECEIVED FROM THE OIL, AND THE BALANCE BECOMES PART OF THE
GENERAL REVENUE FUND OF THE STATE. 

THERE IS BEFORE US NO QUESTION AS TO VALIDITY OF THE STATE'S MEASURES
TO REGULATE PRODUCTION, OR AS TO WHEN, IF EVER, THE OIL IN CONTROVERSY
BECAME FORFEIT.  FN6  THE SOLE ISSUE IS WHETHER THE BANKRUPTCY COURT
SHOULD HAVE PERMITTED THE STATE TO BRING SUIT IN A STATE COURT TO HAVE
THE OIL ADJUDGED CONFISCATE. 

THESE ARE THE FACTS. 

TEXAS SUED THE TRINITY REFINING COMPANY IN THE DISTRICT COURT, 126TH
JUDICIAL DISTRICT, TRAVIS COUNTY, TO RECOVER FINES AND PENALTIES FOR
VIOLATION OF THE CONSERVATION LAWS.  THE COURT APPOINTED CLOPTON AND
HYDER RECEIVERS OF DEFENDANT'S PROPERTY PENDING THE TRIAL OF THE CASE. 
THEY TOOK POSSESSION OF PROPERTY CLAIMED BY THE DEFENDANT, INCLUDING A
LARGE QUANTITY OF OIL WHICH THE STATE INSISTS HAD ALREADY BECOME ITS
PROPERTY BECAUSE UNLAWFULLY PRODUCED OR TRANSPORTED.  LATER, THE STATE
SUED THE COMPANY IN THE DISTRICT COURT, 98TH JUDICIAL DISTRICT OF THE
SAME COUNTY, TO RECOVER DELINQUENT TAXES.  THAT SUIT HAVING BEEN
TRANSFERRED TO THE DISTRICT IN WHICH THE FIRST WAS PENDING, THE COURT
THERE APPOINTED AS RECEIVERS IN THE SECOND CASE THE SAME PERSONS IT HAD
APPOINTED IN THE FIRST ONE. 

WITHIN FOUR MONTHS AFTER COMMENCEMENT OF THE FIRST SUIT, THE COMPANY
FILED ITS PETITION IN THE UNITED STATES DISTRICT COURT, SUBMITTING A
PLAN OF REORGANIZATION.  THE COURT FOUND THE PETITION TO HAVE BEEN
PRESENTED IN GOOD FAITH, APPROVED IT AS PROPERLY FILED, APPOINTED
DONOGHUE TRUSTEE OF THE DEBTOR, DIRECTED HIM TO TAKE POSSESSION OF ITS
PROPERTY, ORDERED THAT ALL PERSONS HAVING PROPERTY OF THE DEBTOR
DELIVER IT TO HIM AND ISSUED IN USUAL FORM A RESTRAINING ORDER
PREVENTING INTERFERENCE WITH HIS POSSESSION OR CONTROL.  THE TRUSTEE
TOOK FROM THE RECEIVERS PROPERTY CLAIMED BY THE DEBTOR INCLUDING THE
OIL IN QUESTION, APPROXIMATELY 77,000 BARRELS.  TEXAS APPLIED TO THE
BANKRUPTCY COURT FOR PERMISSION TO BRING SUIT IN A STATE COURT TO
OBTAIN JUDGMENT OF CONFISCATION AGAINST THAT OIL.  THE COURT WITHHELD
CONSENT AND DIRECTED THE TRUSTEE TO RETAIN THE OIL.  THE CIRCUIT COURT
OF APPEALS SUSTAINED THAT RULING, 88 F.(2D) 48, 51, AND TO REVIEW ITS
JUDGMENT UPON THAT ISSUE, WE BROUGHT THE CASE HERE.  301 U.S. 674. 
FN7 

THE STATE'S RIGHT TO BRING THE SUIT IN THE STATE COURT IS THE SAME AS
IF ON ITS VOLUNTARY PETITION THE COMPANY HAD BEEN ADJUDGED BANKRUPT ON
THE DAY ITS PETITION FOR REORGANIZATION WAS APPROVED.  SEC. 77BO). 
FORFEITURE OF UNLAWFUL OIL UNDER TEXAS LAW IS A PENALTY IMPOSED TO
VINDICATE THE STATE'S POLICY OF CONSERVATION.  CHAMPLIN RFG.  CO. V.
CORPORATION COMMISSION, 286 U.S. 210, 240-241.  THE BANKRUPTCY COURT
EXERCISES JURISDICTION UNDER SOVEREIGNTY THAT IS INDEPENDENT OF AND
FOREIGN TO THAT OF TEXAS.  MOORE V. MITCHELL, 281 U.S. 18, 23.  IT IS
WITHOUT POWER TO ENFORCE PENALTIES IMPOSED BY THE STATE FOR VIOLATION
OF ITS LAWS.  THE ANTELOPE, 10 WHEAT.  66, 123.  WISCONSIN V. PELICAN
INS. CO., 127 U.S. 265, 289, ET SEQ. CF. SEC. 57(J), BANKRUPTCY ACT;
FN8  NEW YORK V. JERSAWIT, 263 U.S. 493, 496; UNITED STATES V. CHILDS,
266 U.S. 304, 309-310.  THE STATE'S INSISTENCE IS NOT THAT IT IS
PRESENTLY ENTITLED TO ESTABLISH A RIGHT TO FORFEIT THE OIL, BUT THAT
THE OIL BECAME ITS PROPERTY WHEN PRODUCED OR TRANSPORTED CONTRARY TO
LAW.  IT SEEKS NOT TO FORFEIT BUT TO ENFORCE THE FORFEITURE THAT
RESULTED, AS IT MAINTAINS, IMMEDIATELY FROM UNLAWFUL PRODUCTION OR
TRANSPORTATION. 

POSSESSION OR CONTROL OF THE OIL BY THE STATE COURT IS NOT ESSENTIAL
TO ITS JURISDICTION TO ENTERTAIN THE SUIT PROPOSED TO BE BROUGHT.  FN9
TEXAS DOES NOT CLAIM TO BE ENTITLED TO POSSESSION OF THE OIL UNTIL
FINAL ADJUDICATION IN THE STATE COURT.  RETENTION BY THE TRUSTEE IS NOT
INCONSISTENT WITH THE MAINTENANCE OF THAT SUIT.  HE IS ENTITLED THERE
TO BE HEARD IN SUPPORT OF HIS CLAIM TO THE OIL.  IF WHEN THE DEBTOR'S
PETITION WAS APPROVED THE OIL DID NOT BELONG TO TEXAS, THE STATE WAS
NOT ENTITLED TO HAVE IT WITHHELD FROM THE TRUSTEE.  BUT, IF BY REASON
OF UNLAWFUL PRODUCTION OR TRANSPORTATION, THE OIL HAD ALREADY BY
FORFEITURE BECOME THE PROPERTY OF THE STATE, THE TRUSTEE WAS NOT
ENTITLED TO TAKE OR RETAIN IT.  IF IN A SUIT BROUGHT BY TEXAS IN A
STATE COURT IT SHOULD BE DETERMINED THAT TITLE TO THE OIL HAD VESTED IN
THE STATE BEFORE APPROVAL OF THE DEBTOR'S PETITION, THE BANKRUPTCY
COURT DOUBTLESSLY WILL RECOGNIZE THAT TITLE AND DIRECT THE TRUSTEE TO
HAND OVER THE OIL OR ACCOUNT FOR IT TO THE STATE.  ROSE V. HIMELY, 4
CRANCH 241, 268.  HUDSON V. GUESTIER, 4 CRANCH 293, 297.  SEE WISCONSIN
V. PELICAN INS. CO., SUPRA, 291. 

THE FILING OF THE PETITION FOR REORGANIZATION IN THE BANKRUPTCY COURT
MAY NOT BE HELD TO DEPRIVE THE STATE OF OPPORTUNITY IN ITS OWN COURT TO
ESTABLISH ITS CLAIM THAT THROUGH FORFEITURE IT HAD ALREADY BECOME THE
OWNER OF THE OIL FOR THAT WOULD BE TO TAKE THE STATE'S PROPERTY FOR THE
BENEFIT OF THE OFFENDING COMPANY OR ITS CREDITORS.  NOR MAY THE
RECEIVERS' VOLUNTARY SURRENDER OF POSSESSION TO THE DEBTOR'S TRUSTEE
PREVENT ADJUDICATION OF THE STATE'S CLAIM.  THE BANKRUPTCY COURT ABUSED
ITS DISCRETION IN DENYING THE STATE'S APPLICATION FOR PERMISSION TO
INSTITUTE PROCEEDINGS IN THE STATE COURT AND, TO THE EXTENT THAT THE
CIRCUIT COURT OF APPEALS SUSTAINED THAT RULING, ITS JUDGMENT MUST BE
REVERSED. 

FN1  11 U.S.C., SEC. 207. 

FN2  TEXAS REVISED CIVIL STATUTES, 1925, TITLE 102. 

FN3  ART. 6049E, SEC. 10. 

FN4  ART. 6036. 

FN5  ART. 6066(A), SEC. 10: 

(A)  "ALL UNLAWFUL OIL  ...  (IS) HEREBY DECLARED TO BE A NUISANCE
AND SHALL BE FORFEITED TO THE STATE AS HEREINAFTER PROVIDED.... 

(B)  "WHEN THE ATTORNEY GENERAL IS ADVISED FROM ANY SOURCE OF THE
PRESENCE AND EXISTENCE OF UNLAWFUL OIL  ...  IT SHALL BE HIS DUTY TO
INSTITUTE A SUIT IN REM AGAINST SUCH UNLAWFUL OIL  ... AND AGAINST ALL
PERSONS OWNING, CLAIMING OR IN POSSESSION THEREOF, SUCH SUIT TO BE
BROUGHT IN THE NAME OF THE STATE  ...  IN ANY COURT OF COMPETENT
JURISDICTION IN TRAVIS COUNTY OR IN THE COUNTY IN WHICH SUCH OIL  ...
IS LOCATED.  IF IT SHALL APPEAR TO THE COURT  ...  THAT UNLAWFUL OIL
... MENTIONED IN THE PETITION  ...  (IS) IN DANGER OF BEING REMOVED,
WASTED, LOST OR DESTROYED, THE COURT IS AUTHORIZED AND REQUIRED  ...
TO ISSUE RESTRAINING ORDERS OR INJUNCTIVE RELIEF  ...  OR TO APPOINT A
RECEIVER TO TAKE CHARGE OF THE OIL  ...  IN QUESTION, OR TO DIRECT THE
SHERIFF OF THE COUNTY  ...  TO SEIZE AND IMPOUND THE SAME UNTIL FURTHER
ORDERS OF THE COURT." 

(C)  "...  IF, UPON THE TRIAL OF SUCH SUIT THE OIL  ...  IN
CONTROVERSY IS FOUND TO BE UNLAWFUL ...  THEN THE COURT  ...  SHALL
RENDER JUDGMENT FORFEITING THE SAME TO THE STATE  ...  AND AUTHORIZING
THE ISSUANCE OF AN ORDER OF SALE DIRECTED TO THE SHERIFF OR ANY
CONSTABLE OF THE COUNTY WHERE THE OIL OR PRODUCTS ARE LOCATED
COMMANDING SUCH OFFICER TO SEIZE AND SELL SAID PROPERTY IN THE SAME
MANNER AS PERSONAL PROPERTY IS SOLD UNDER EXECUTION  ...  THE MONEY
REALIZED FROM THE SALE  ...  SHALL BE APPLIED, FIRST, TO THE PAYMENT OF
THE COSTS OF SUIT AND EXPENSES INCIDENT TO THE SALE  ...  AND ALL FUNDS
THEN REMAINING, SHALL BE  ...  PLACED TO THE CREDIT OF THE GENERAL
REVENUE FUND OF THE STATE...." 

FN6  UNITED STATES V. 1960 BAGS OF COFFEE, 8 CRANCH 398.  SEE ALSO
CLARK V. PROTECTION INSURANCE CO., 1 STORY (C.C.)  109, 134; FED. CAS.
NO. 2832. 

FN7  LATER, NO PLAN OF REORGANIZATION HAVING BEEN ADOPTED, THE
BANKRUPTCY COURT ORDERED LIQUIDATION OF THE DEBTOR'S PROPERTY UNDER
SUBDS. (C)(8) AND (K) OF SEC. 77 B. DONOGHUE WAS APPOINTED TRUSTEE IN
BANKRUPTCY.  SEC. 44; 11 U.S.C., SEC. 72.  THIS COURT SUBSTITUTED HIM
IN THAT CAPACITY AS RESPONDENT IN PLACE OF HIMSELF AS TRUSTEE OF THE
DEBTOR. 

FN8  11 U.S.C., SEC. 93(J). 

FN9  ART. 6066A, SECS. 10(B) AND (C). 

MR. JUSTICE CARDOZO, DISSENTING. 

I THINK THE JUDGMENT SHOULD BE AFFIRMED. 

TEXAS WAS NOT THE OWNER OF THE OIL IN CONTROVERSY WHEN IT CAME INTO
THE POSSESSION OF THE COURT OF BANKRUPTCY.  IF SHE HAD BEEN SUCH AN
OWNER, SHE COULD BE HEARD IN THAT COURT PRO INTERESSE SUO, VINDICATING
HER TITLE IN RECLAMATION PROCEEDINGS LIKE ANY OTHER ADVERSE CLAIMANT. 
BY COMMON CONSENT OWNERSHIP SUFFICIENT FOR SUCH RELIEF WAS NOT HERS
WHEN THE COURT OF BANKRUPTCY TOOK THE OIL INTO ITS CUSTODY, AND IS NOT
HERS TODAY.  "IT IS NOT CORRECT TO SAY, THAT PROPERTY FORFEITED IS
VESTED IN THE GOVERNMENT AT THE VERY MOMENT OF FORFEITURE, AND THE
TITLE OF THE OWNER IMMEDIATELY DEVESTED.  ON THE CONTRARY, THE
ESTABLISHED DOCTRINE IS, THAT, NOTWITHSTANDING THE FORFEITURE, THE
PROPERTY REMAINS IN THE OWNER, UNTIL IT IS ACTUALLY SEIZED BY THE
GOVERNMENT, AND THEN BY THE SEIZURE THE TITLE OF THE GOVERNMENT RELATES
BACK TO THE TIME OF THE FORFEITURE."  CLARK V. PROTECTION INSURANCE
CO., 1 STORY 109, 134; CF. UNITED STATES V. STOWELL, 133 U.S. 1.  SO
FAR AS I AM AWARE THERE IS NO CONTENTION TO THE CONTRARY.  THE OIL
"SHALL BE FORFEITED TO THE STATE AS HEREINAFTER PROVIDED" (TEXAS
REVISED CIVIL STATUTES, ART. 6066A, SEC. 10), AND NOT OTHERWISE.  THE
STATUTE DOES NOT MEAN THAT WITHOUT THE AID OF ANY JUDGMENT TITLE IS
TRANSFERRED AT ONCE ON THE COMMISSION OF THE OFFENSE.  THE JUDGMENT IS
TO BE IN REM AND IMPORTS CONTROL OVER THE RES.  PENNOYER V. NEFF, 95
U.S. 714, 734; ISAACS V. HOBBS TIE & T. CO., 282 U.S. 734. 

WITH THE OIL IN THE POSSESSION OF THE FEDERAL COURT OF BANKRUPTCY - A
POSSESSION LAWFULLY ACQUIRED - LEAVE TO SUE IN THE STATE COURT FOR A
DECREE OF FORFEITURE AND SALE WILL BE AN IDLE AND EMPTY FORM,
PRODUCTIVE OF NOTHING EXCEPT DELAY AND VAIN EXPENSE, UNLESS UPON THE
PRONOUNCEMENT OF THE DECREE IT WILL BE THE DUTY OF THE COURT OF
BANKRUPTCY TO SURRENDER THE OIL TO THE COURT OF ANOTHER JURISDICTION,
AND THIS FOR THE SOLE PURPOSE OF MAKING A FORFEITURE EFFECTIVE.  I DENY
THAT ANY SUCH DUTY WILL EXIST.  CF. ISAACS V. HOBBS TIE & T. CO.,
SUPRA.  I FIND NO INTIMATION OF ITS EXISTENCE IN ANY CASE TILL THIS
ONE.  CERTAINLY THERE IS NONE IN THE CASES NOW CITED IN THE OPINION OF
THE COURT.  TRUE INDEED IT IS THAT IF POSSESSION OF THE RES WERE TO BE
ACQUIRED BY THE TEXAS COURT AT THE TIME OF THE DECREE OF FORFEITURE OR
EVEN AT THE TIME OF A SALE PURSUANT THERETO, A TITLE OBTAINED
THEREUNDER WOULD BE RECOGNIZED AS VALID EVERYWHERE.  WISCONSIN V.
PELICAN INS. CO., 127 U.S. 265, 291; ROSE V. HIMELY, 4 CRANCH 241;
HUDSON V. GUESTIER, 4 CRANCH 293; DICEY, CONFLICT OF LAWS, 5TH ED., PP.
484, 485.  THIS IS FAR FROM SAYING THAT A COURT OF ANOTHER JURISDICTION
WHICH ALREADY HOLDS THE RES UPON A TRUST FOR GENERAL CREDITORS WILL
GIVE ITS POSSESSION UP IN AID OF A FORFEITURE OTHERWISE IMPOSSIBLE. 
"THE COURTS OF NO COUNTRY EXECUTE THE PENAL LAWS OF ANOTHER."  THE
ANTELOPE, 10 WHEAT.  66, 123; GWIN V. BREEDLOVE, 2 HOW.  29, 37;
WISCONSIN V. PELICAN INS. CO., SUPRA; HUNTINGTON V. ATTRILL, 146 U.S.
657, 666; LOUCKS V. STANDARD OIL CO., 224 N.Y. 99, 102; DICEY, SUPRA,
P. 212.  CF. BANKRUPTCY ACT, SEC. 57(J).  WITHIN THE PURVIEW OF THAT
DOCTRINE, THE STATE AND THE FEDERAL COURTS ARE RANKED AS COURTS OF
SEPARATE SOVEREIGNTIES, QUITE AS MUCH AS THE COURTS OF DIFFERENT
STATES.  GWIN V. BREEDLOVE, SUPRA; MOORE V. MITCHELL, 281 U.S. 18, 23. 
IF THE OIL IN CONTROVERSY HAD BEEN REMOVED TO CALIFORNIA AND WERE IN
POSSESSION OF THE RECEIVERS OF A CALIFORNIA CORPORATION AFTER A DECREE
OF DISSOLUTION, WOULD ANY ONE CONTEND THAT THE CALIFORNIA COURT WOULD
ORDER ITS RECEIVERS TO RETURN THE PROPERTY TO TEXAS FOR THE PURPOSE BY
SUCH RETURN OF MAKING A FORFEITURE EFFECTIVE?  A FEDERAL COURT OF
BANKRUPTCY IS SUBJECT TO NO GREATER DUTY.  THE PREVAILING OPINION
COMMITS US TO A HOLDING THAT PROPERTY IN ONE JURISDICTION MAY BE
DIVERTED FROM THE USE OF CREDITORS AND MADE TO FEED A FORFEITURE IN
ANOTHER JURISDICTION, A FORFEITURE BRUTUM FULMEN UNLESS THUS AIDED FROM
AFAR.  IF THAT IS DONE, THE EFFICACY OF PENAL LAWS WILL HAVE TAKEN ON A
NEW EXTENSION.  WITHOUT A TRANSFER OF POSSESSION THE FORFEITURE IS DEAD
AT BIRTH.  A COURT OF BANKRUPTCY WILL NOT STIR A HAND TO MAKE IT
VIABLE.    I AM AUTHORIZED TO STATE THAT MR. JUSTICE STONE JOINS IN
THIS OPINION. 
..END :













WORCESTER COUNTY CO. V. RILEY, 302 U.S. 292 


NO. 34.  ARGUED NOVEMBER 15, 16, 1937.  - DECIDED DECEMBER 6, 1937.  -
89 F.(2D) 59, AFFIRMED. 


1.  STATE TAXING OFFICIALS SEEKING THROUGH JUDICIAL PROCEEDINGS TO
ASSESS A SUCCESSION TAX ON INTANGIBLE PROPERTY IN PURSUANCE OF LAWS OF
THEIR STATE, WHICH IMPOSE THE TAX ONLY IF THE DECEASED WAS DOMICILED
THEREIN AT DEATH, CAN NOT CONSTITUTIONALLY BE INTERPLEADED IN A FEDERAL
COURT WITH TAX OFFICIALS OF ANOTHER STATE LIKEWISE CLAIMING THE
DOMICILE AND THE RIGHT TO TAX, IN ORDER THAT THE FEDERAL COURT MAY
DETERMINE WHICH STATE IS IN FACT DOMICILIARY AND ENJOIN TAXATION IN THE
OTHER STATE, FOR THE PURPOSE OF AVOIDING DOUBLE TAXATION.  P. 296. 

SUCH A SUIT IS IN EFFECT AGAINST THE STATE, FORBIDDEN BY THE ELEVENTH
AMENDMENT. 

A BILL OF INTERPLEADER, BROUGHT BY AN EXECUTOR AGAINST TAX OFFICIALS
OF CALIFORNIA AND OF MASSACHUSETTS, ALLEGED THAT THE CALIFORNIA
OFFICIALS HAD DETERMINED AND WERE ASSERTING THAT THE DECEDENT, AT
DEATH, WAS DOMICILED IN THAT STATE, AND WERE THREATENING TO ASSESS AND
COLLECT UNDER CALIFORNIA LAWS, APPLICABLE IN CASE OF LOCAL DOMICILE, A
DEATH TAX UPON ALL HIS INTANGIBLES, WHICH WOULD BE IN EXCESS OF ANY TAX
THAT WOULD BE DUE IF THE DOMICILE WAS MASSACHUSETTS; AND THAT THE
MASSACHUSETTS OFFICIAL, IN BEHALF OF HIS STATE, WAS ASSERTING THAT THE
DOMICILE WAS IN MASSACHUSETTS AND THE ESTATE TAXABLE THERE UPON ALL THE
INTANGIBLES; THAT IT WAS IMPOSSIBLE IN LAW AND IN FACT FOR DECEDENT TO
HAVE BEEN DOMICILED IN BOTH STATES AT THE TIME OF HIS DEATH, OR FOR HIS
ESTATE TO BE SUBJECT TO DEATH TAXES IN BOTH STATES AS ASSERTED, AND
THAT ATTEMPTED COLLECTION WAS A THREATENED DEPRIVATION OF PROPERTY
WITHOUT DUE PROCESS OF LAW AND DENIAL OF EQUAL PROTECTION OF THE LAWS. 
THE BILL PRAYED THAT THE COURT ORDER THE RESPONDENT OFFICIALS OF THE
TWO STATES TO INTERPLEAD THEIR RESPECTIVE CLAIMS FOR THE TAX; THAT THE
COURT DETERMINE THE DOMICILE OF DECEDENT, THE AMOUNT OF THE TAX, AND
THE PERSON OR PERSONS TO WHOM IT WAS PAYABLE; AND THAT RESPONDENTS BE
ENJOINED FROM ANY OTHER PROCEEDINGS TO COLLECT IT.  HELD, THAT, ON
OBJECTION OF THE CALIFORNIA RESPONDENTS, THE SUIT WAS PROPERLY
DISMISSED AS, IN SUBSTANCE, A SUIT AGAINST THE STATE. 

2.  UNDER CALIFORNIA STATUTES, INHERITANCE TAXES ARE ASSESSED BY
JUDICIAL PROCEEDINGS RESULTING, AFTER FULL OPPORTUNITY FOR PRESENTATION
OF EVIDENCE AND A HEARING, IN A JUDGMENT WHICH IS REVIEWABLE ON APPEAL
BY THE STATE COURTS, AND BY THIS COURT IF IT INVOLVES ANY DENIAL OF
FEDERAL RIGHT.  P. 298. 

3.  CONFLICTING DECISIONS OF THE SAME ISSUE OF FACT DO NOT
NECESSARILY IMPLY JUDICIAL ERROR.  P. 299. 

4.  NEITHER THE FOURTEENTH AMENDMENT NOR THE FULL FAITH AND CREDIT
CLAUSE REQUIRES UNIFORMITY IN THE DECISIONS OF THE COURTS OF DIFFERENT
STATES AS TO THE PLACE OF DOMICILE, WHERE THE EXERTION OF STATE POWER
IS DEPENDENT UPON DOMICILE.  P. 299. 

5.  CITY BANK FARMERS TRUST CO. V. SCHNADER, 291 U.S. 24,
DISTINGUISHED.  P. 300. 

WORCESTER COUNTY TRUST CO. V. RILEY, CONTROLLER OF CALIFORNIA, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 301 U.S. 678, TO REVIEW THE REVERSAL OF A DECREE GRANTING
A TEMPORARY INJUNCTION IN AN INTERPLEADER SUIT, 14 F.SUPP.  754. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE FEDERAL INTERPLEADER ACT,
SEC. 24(26) OF THE JUDICIAL CODE AS AMENDED JANUARY 20, 1936, C. 13,
SEC. 1, 49 STAT. 1096, MAY BE AVAILED OF FOR THE LITIGATION AND FINAL
DISPOSITION OF THE RIVAL CLAIMS OF TWO STATES, EACH ASSERTING THROUGH
ITS OFFICERS THE RIGHT TO RECOVER DEATH TAXES ON THE GROUND THAT
DECEDENT WAS LAST DOMICILED WITHIN ITS BOUNDARIES. 

PETITIONER IS THE DULY QUALIFIED EXECUTOR NAMED IN THE LAST WILL OF
DECEDENT, WHICH HAS BEEN PROBATED IN MASSACHUSETTS.  ANCILLARY
ADMINISTRATION OF THE ESTATE HAS BEEN GRANTED IN CALIFORNIA. 
PETITIONER BROUGHT THE PRESENT SUIT IN THE DISTRICT COURT FOR
MASSACHUSETTS, JOINING AS DEFENDANTS COMMISSIONER OF CORPORATIONS AND
TAXATION OF THE COMMONWEALTH OF MASSACHUETTS, AND RESPONDENTS, OFFICERS
OF THE STATE OF CALIFORNIA, ALL CHARGED WITH THE DUTY OF ADMINISTERING
DEATH TAX STATUTES OF THEIR RESPECTIVE STATES.  THE BILL OF COMPLAINT
IS FOUNDED UPON THE INTERPLEADER ACT AND SEEKS THE REMEDY WHICH IT
AFFORDS. 

OF INTERPLEADER OR IN THE NATURE OF INTERPLEADER, BY PLAINTIFFS WHO ARE
UNDER AN OBLIGATION TO THE AMOUNT OF $500 OR MORE, THE BENEFITS OF
WHICH ARE DEMANDED BY TWO OR MORE ADVERSE CLAIMANTS WHO ARE CITIZENS OF
DIFFERENT STATES.  BY SUBSECTION 26(A) "SUCH A SUIT IN EQUITY MAY BE
ENTERTAINED ALTHOUGH THE TITLES OR CLAIMS OF THE CONFLICTING CLAIMANTS
DO NOT HAVE A COMMON ORIGIN, OR ARE NOT IDENTICAL, BUT ARE ADVERSE TO
AND INDEPENDENT OF ONE ANOTHER."  AND BY SUBSECTION 26(A)(II) AND (D)
COMPLAINANT, UPON SATISFYING JURISDICTIONAL REQUIREMENTS OF THE ACT,
AND DEPOSITING THE MONEY OR PROPERTY IN THE REGISTRY OF THE COURT, OR
UPON GIVING A PRESCRIBED BOND, IS ENTITLED TO A DECREE DISCHARGING HIM
FROM FURTHER LIABILITY AND ENJOINING THE CLAIMANTS FROM FURTHER
PROCEEDINGS IN OTHER COURTS TO RECOVER THE SUM CLAIMED. 

THE BILL OF COMPLAINT ALLEGES THAT DECEDENT LEFT BANK DEPOSITS AND
OTHER INTANGIBLES IN CALIFORNIA AND MASSACHUSETTS, A SUBSTANTIAL PART
OF WHICH HAS COME INTO THE POSSESSION OR CUSTODY OF PETITIONER; THAT
RESPONDENTS, THE CALIFORNIA TAXING OFFICIALS, HAVE DETERMINED AND
ASSERT THAT DECEDENT AT DEATH WAS DOMICILED IN CALIFORNIA, AND THAT
UNDER THE LAW OF THAT STATE HIS ESTATE IS SUBJECT TO DEATH TAXES UPON
ALL HIS INTANGIBLES; THAT RESPONDENTS THREATEN TO ASSESS AND COLLECT
THERE A TAX IN EXCESS OF ANY WHICH WOULD BE DUE IF DECEDENT WERE
DOMICILED IN MASSACHUSETTS; THAT THE MASSACHUSETTS COMMISSIONER, IN
BEHALF OF THE STATE, ASSERTS A SIMILAR CLAIM THAT DECEDENT AT DEATH WAS
DOMICILED IN MASSACHUSETTS, AND THAT HIS ESTATE IS SUBJECT TO TAXES
THERE UPON ALL HIS INTANGIBLES; THAT IT IS IMPOSSIBLE IN LAW AND IN
FACT FOR DECEDENT TO HAVE BEEN DOMICILED IN BOTH STATES AT THE TIME OF
HIS DEATH, OR FOR HIS ESTATE TO BE SUBJECT TO DEATH TAXES IN BOTH
STATES AS ASSERTED; AND THAT THE ATTEMPTED COLLECTION OF THE TAX IS A
THREATENED DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW AND A
DENIAL OF EQUAL PROTECTION OF THE LAWS.  PETITIONER PRAYS THAT THE
COURT ORDER RESPONDENT OFFICIALS OF THE TWO STATES TO INTERPLEAD THEIR
RESPECTIVE CLAIMS FOR THE TAX; THAT THE COURT DETERMINE THE DOMICILE OF
DECEDENT, THE AMOUNT OF THE TAX, AND THE PERSON OR PERSONS TO WHOM IT
IS PAYABLE; AND THAT RESPONDENTS BE ENJOINED FROM ANY OTHER PROCEEDINGS
TO COLLECT IT. 

RESPONDENTS, THE CALIFORNIA OFFICERS, APPEARED SPECIALLY AND MOVED TO
DISMISS THE COMPLAINT UPON THE GROUND, AMONG OTHERS, THAT THE SUIT WAS
BROUGHT AGAINST RESPONDENTS IN THEIR OFFICIAL CAPACITY, AND WAS IN
SUBSTANCE A SUIT AGAINST THE STATE FORBIDDEN BY THE ELEVENTH
AMENDMENT.  THE DISTRICT COURT OVERRULED THIS CONTENTION AND GRANTED A
TEMPORARY INJUNCTION RESTRAINING DEFENDANTS UNTIL FURTHER ORDER OF THE
COURT, FROM TAKING ANY ACTION TO ASSESS THE TAX.  THE COURT OF APPEALS
FOR THE FIRST CIRCUIT REVERSED, 89 F.(2D) 59, HOLDING THAT THE
MAINTENANCE OF THE SUIT IS AN INFRINGEMENT OF THE ELEVENTH AMENDMENT,
WHICH PROVIDES THAT "THE JUDICIAL POWER  ...  SHALL NOT BE CONSTRUED TO
EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED OR PROSECUTED AGAINST
ONE OF THE UNITED STATES BY CITIZENS OF ANOTHER STATE...."  WE GRANTED
CERTIORARI, 299 U.S. 567, THE DECISION BELOW BEING OF AN IMPORTANT
QUESTION OF FEDERAL LAW WHICH HAS NOT BEEN BUT SHOULD BE SETTLED BY
THIS COURT.  SUPREME COURT RULES, 38(5)(B). 

PETITIONER DOES NOT DENY THAT A SUIT NOMINALLY AGAINST INDIVIDUALS,
BUT RESTRAINING OR OTHERWISE AFFECTING THEIR ACTION AS STATE OFFICERS,
MAY BE IN SUBSTANCE A SUIT AGAINST THE STATE, WHICH THE CONSTITUTION
FORBIDS, LOUISIANA V. JUMEL, 107 U.S. 711; HAGOOD V. SOUTHERN, 117 U.S.
52; IN RE AYERS, 123 U.S. 443; NORTH CAROLINA V. TEMPLE, 134 U.S. 22,
30; SMITH V. REEVES, 178 U.S. 436; LANKFORD V. PLATTE IRON WORKS, 235
U.S. 461; EX PARTE NEW YORK, NO. 1, 256 U.S. 490, 500; MISSOURI V.
FISKE, 290 U.S. 18, 28; SEE CUNNINGHAM V. MACON & BRUNSWICK R. CO., 109
U.S. 446; CF. WELLS V. ROPER, 246 U.S. 335, OR THAT GENERALLY SUITS TO
RESTRAIN ACTION OF STATE OFFICIALS CAN, CONSISTENTLY WITH THE
CONSTITUTIONAL PROHIBITION, BE PROSECUTED ONLY WHEN THE ACTION SOUGHT
TO BE RESTRAINED IS WITHOUT THE AUTHORITY OF STATE LAW OR CONTRAVENES
THE STATUTES OR CONSTITUTION OF THE UNITED STATES.  CF. EX PARTE YOUNG,
209 U.S. 123; SCULLY V. BIRD, 209 U.S. 481; OLD COLONY TRUST CO. V.
SEATTLE, 271 U.S. 426, WITH LOUISIANA V. JUMEL, SUPRA; HAGOOD V.
SOUTHERN, SUPRA; IN RE AYERS, SUPRA; LANKFORD V. PLATTE IRON WORKS,
SUPRA.  THE ELEVENTH AMENDMENT, WHICH DENIES TO THE CITIZEN THE RIGHT
TO RESORT TO A FEDERAL COURT TO COMPEL OR RESTRAIN STATE ACTION, DOES
NOT PRECLUDE SUIT AGAINST A WRONGDOER MERELY BECAUSE HE ASSERTS THAT
HIS ACTS ARE WITHIN AN OFFICIAL AUTHORITY WHICH THE STATE DOES NOT
CONFER. 

PETITIONER'S CONTENTION IS THAT HERE THE PROSPECTIVE OFFICIAL ACTION
OF RESPONDENTS INVOLVES A THREATENED VIOLATION OF THE CONSTITUTION FOR
WHICH STATE LAW CAN AFFORD NO SANCTION.  IT IS SAID THAT AS THE
OFFICERS OF EACH STATE ASSERT THE RIGHT TO COLLECT THE TAX OUT OF
DECEDENT'S PROPERTY WITHIN THE STATE, THEY MAY SUCCEED IN ESTABLISHING
THAT RIGHT BY A JUDICIAL DETERMINATION IN EACH THAT DECEDENT WAS LAST
DOMICILED THERE, CF. DORRANCE'S ESTATE, 309 PA. 151; 163 ATL. 303; IN
RE ESTATE OF DORRANCE, 115 N.J. EQ. 268; 170 ATL. 601; 116 N.J. EQ.
204; 172 ATL. 503, WITH NEW JERSEY V. PENNSYLVANIA, 287 U.S. 580;
DORRANCE V. PENNSYLVANIA, 287 U.S. 660; HILL V. MARTIN, 296 U.S. 393,
ALTHOUGH HE COULD NOT BE DOMICILED IN BOTH; THAT NEITHER STATE COULD
CONSTITUTIONALLY AUTHORIZE ITS OFFICIALS TO IMPOSE THE TAX IF DECEDENT
WAS LAST DOMICILED ELSEWHERE, AND PETITIONER IS THUS EXPOSED TO THE
DANGER OF DOUBLE TAXATION, WHICH THE CONSTITUTION FORBIDS.  SEE FIRST
NATIONAL BANK V. MAINE, 284 U.S. 312; FARMERS LOAN & TRUST CO. V.
MINNESOTA, 280 U.S. 204.  AS THOSE OFFICIALS THREATEN ACTS WHOSE
CONSEQUENCE MAY BE TAXATION WHICH IS UNAUTHORIZED BY ANY VALID STATE
ENACTMENT, PETITIONER INSISTS THAT THE SUIT BROUGHT TO RESTRAIN SUCH
ACTION DOES NOT RUN AGAINST THE STATE. 

BUT THIS ARGUMENT CONFUSES THE POSSIBILITY OF CONFLICT OF DECISIONS
OF THE COURTS OF THE TWO STATES, WHICH THE CONSTITUTION DOES NOT
FORESTALL, WITH OTHER TYPES OF ACTION BY STATE OFFICERS WHICH, BECAUSE
IT PASSES BEYOND THE LIMITS OF A LAWFUL AUTHORITY, IS WITHIN THE REACH
OF THE FEDERAL JUDICIAL POWER NOTWITHSTANDING THE ELEVENTH AMENDMENT. 
THIS COURT HAS HELD THAT STATE STATUTES, CONSTRUED TO IMPOSE DEATH
TAXES UPON THE INTANGIBLES OF DECEDENTS DOMICILED ELSEWHERE, INFRINGE
THE FOURTEENTH AMENDMENT, AND IT HAS ACCORDINGLY REVERSED JUDGMENTS OF
STATE COURTS ENFORCING SUCH LIABILITY.  FIRST NATIONAL BANK V. MAINE,
SUPRA; FARMERS LOAN & TRUST CO. V. MINNESOTA, SUPRA.  BUT PETITIONER
DOES NOT ASSERT THAT THERE ARE SUCH STATUTES IN CALIFORNIA OR
MASSACHUSETTS, OR THAT THE COURTS IN THOSE STATES HAVE EVER HELD OR
THREATEN TO HOLD THAT THEIR LAWS TAXING INHERITANCES APPLY TO
INTANGIBLES OF THOSE DOMICILED IN OTHER STATES. 

ALTHOUGH THE BILL OF COMPLAINT STATES THAT RESPONDENTS CALIFORNIA
OFFICIALS "HAVE DETERMINED" THAT DECEDENT WAS DOMICILED IN CALIFORNIA,
IT IS NOT CONTENDED THAT THEY HAVE OR ARE ASSUMING AUTHORITY TO ASSESS
THE TAX, INDEPENDENTLY OF THE JUDGMENT OF A COURT.  UNDER CALIFORNIA
STATUTES, INHERITANCE TAXES ARE ASSESSED BY JUDICIAL PROCEEDINGS
RESULTING, AFTER FULL OPPORTUNITY FOR PRESENTATION OF EVIDENCE AND A
HEARING, IN A JUDGMENT WHICH IS REVIEWABLE ON APPEAL BY THE STATE
COURTS, AND BY THIS COURT IF IT INVOLVES ANY DENIAL OF FEDERAL RIGHT. 
SECS. 14, 15, 16, 17 AND 18, CAL. INHERITANCE TAX ACT OF JUNE 3, 1921,
STATS. 1921, P. 1500, AS AMENDED; SEE STEBBINS V. RILEY, 268 U.S. 137;
ESTATE OF HASKINS, 170 CAL. 267; 149 PAC. 576; ESTATE OF BROWN, 196
CAL. 114; 236 PAC. 144. 

PETITIONER DOES NOT CONTEND THAT RESPONDENTS, THE CALIFORNIA
OFFICERS, PROPOSE TO DO MORE THAN INVOKE THE ACTION OF ITS COURTS TO
ASSESS A LAWFUL TAX AND TO SEEK THERE A JUDICIAL DETERMINATION THAT
DECEDENT WAS DOMICILED IN CALIFORNIA AS THE BASIS OF ITS POWER TO
IMPOSE THE TAX.  NOR IS IT DENIED THAT IN SO DOING THEY ARE ACTING IN
THE PERFORMANCE OF OFFICIAL DUTY IMPOSED UPON THEM BY STATE STATUTES,
WHICH CONFORM TO ALL CONSTITUTIONAL REQUIREMENTS.  PETITIONER'S REAL
CONCERN IS THAT THE JUDGMENT OF THE CALIFORNIA COURT, IF IT SHOULD
DECIDE THAT DECEDENT WAS DOMICILED THERE, MAY BE ERRONEOUS OR MAY
CONFLICT WITH THAT OF THE MASSACHUSETTS COURTS.  BUT CONFLICTING
DECISIONS UPON THE SAME ISSUE OF FACT DO NOT NECESSARILY CONNOTE
ERRONEOUS JUDICIAL ACTION.  DIFFERENCES IN PROOF AND THE LATITUDE
NECESSARILY ALLOWED TO THE TRIER OF FACT IN EACH CASE TO WEIGH AND DRAW
INFERENCES FROM EVIDENCE AND TO PASS UPON THE CREDIBILITY OF WITNESSES,
MIGHT LEAD AN APPELLATE COURT TO CONCLUDE THAT IN NONE IS THE JUDGMENT
ERRONEOUS.  IN ANY CASE THE CONSTITUTION OF THE UNITED STATES DOES NOT
GUARANTEE THAT THE DECISIONS OF STATE COURTS SHALL BE FREE FROM ERROR,
CENTRAL LAND CO. V. LAIDLEY, 159 U.S. 103; TRACY V. GINZBERG, 205 U.S.
170, OR REQUIRE THAT PRONOUNCEMENTS SHALL BE CONSISTENT.  MILWAUKEE
ELECTRIC RY. & L. CO. V. WISCONSIN EX REL. MILWAUKEE, 252 U.S. 100,
106.  NEITHER THE FOURTEENTH AMENDMENT NOR THE FULL FAITH AND CREDIT
CLAUSE REQUIRES UNIFORMITY IN THE DECISIONS OF THE COURTS OF DIFFERENT
STATES AS TO THE PLACE OF DOMICIL, WHERE THE EXERTION OF STATE POWER IS
DEPENDENT UPON DOMICIL WITHIN ITS BOUNDARIES.  THORMANN V. FRAME, 176
U.S. 350; OVERBY V. GORDON, 177 U.S. 214; BURBANK V. ERNST, 232 U.S.
162; BAKER V. BAKER, ECCLES & CO., 242 U.S. 394; IOWA V. SLIMMER, 248
U.S. 115, 120, 121; CF. TILT V. KELSEY, 207 U.S. 43.  HENCE IT CANNOT
BE SAID THAT THE THREATENED ACTION OF RESPONDENTS INVOLVES ANY BREACH
OF STATE LAW OR OF THE LAWS OR CONSTITUTION OF THE UNITED STATES. 
SINCE THE PROPOSED ACTION IS THE PERFORMANCE OF A DUTY IMPOSED BY THE
STATUTE OF THE STATE UPON STATE OFFICIALS THROUGH WHOM ALONE THE STATE
CAN ACT, RESTRAINT OF THEIR ACTION, WHICH THE BILL OF COMPLAINT PRAYS,
IS RESTRAINT OF STATE ACTION, AND THE SUIT IS IN SUBSTANCE ONE AGAINST
THE STATE WHICH THE ELEVENTH AMENDMENT FORBIDS.  WE DO NOT PASS ON THE
CONSTRUCTION OF THE INTERPLEADER ACT OR ITS APPLICABILITY IN OTHER
RESPECTS. 

UNLIKE THAT IN EX PARTE YOUNG, SUPRA, AND IN THE MANY CASES WHICH
HAVE FOLLOWED IT, THE PRESENT SUIT IS NOT FOUNDED ON THE ASSERTED
UNCONSTITUTIONALITY OF ANY STATE STATUTE AND THE CONSEQUENT WANT OF
LAWFUL AUTHORITY FOR OFFICIAL ACTION TAKEN UNDER IT.  IN CITY BANK
FARMERS TRUST CO. V. SCHNADER, 291 U.S. 24, ON WHICH PETITIONER RELIES,
IT WAS HELD THAT THE BILL OF COMPLAINT STATED A CAUSE OF ACTION IN
EQUITY TO ENJOIN A STATE OFFICIAL FROM PROCEEDING TO ASSESS AND COLLECT
AN INHERITANCE TAX UPON CHATTELS ALLEGED TO HAVE NO TAX SITUS WITHIN
THE STATE.  THE OBJECTION THAT THE SUIT WAS ONE AGAINST THE STATE
WITHIN THE MEANING OF THE ELEVENTH AMENDMENT WAS NOT URGED OR
CONSIDERED ON THE APPEAL TO THIS COURT.  AFFIRMED. 
..END :

















NATURAL GAS CO. V. SLATTERY, 302 U.S. 300 


NO. 230.  ARGUED NOVEMBER 8, 1937.  - DECIDED DECEMBER 6, 1937.  -
AFFIRMED. 


1.  A DELAWARE CORPORATION, ENGAGED IN PIPING AND SELLING NATURAL GAS
IN INTERSTATE COMMERCE, SOLD AND DELIVERED GAS IN ILLINOIS, UNDER A
LONG TERM CONTRACT, TO AN ILLINOIS CORPORATION WHICH, IN TURN, SOLD IT
IN THAT STATE TO DISTRIBUTING COMPANIES.  ALL THE STOCK OF THIS LOCAL
GAS COMPANY AND MANY OF THE OUTSTANDING SHARES OF THE PIPELINE COMPANY
WERE OWNED BY A LOCAL INVESTMENT COMPANY.  TWO OF THE EIGHT OR NINE
DIRECTORS OF THE PIPELINE COMPANY AT ALL TIMES SINCE ITS INCORPORATION
HAD BEEN DIRECTORS OF THE INVESTMENT COMPANY OR OF CORPORATIONS WHOLLY
CONTROLLING IT OR THE LOCAL GAS COMPANY, THROUGH STOCK OWNERSHIP.  THE
PRESIDENT OF THE LOCAL GAS COMPANY WAS PRESIDENT AND DIRECTOR OF THE
INVESTMENT COMPANY AND A DIRECTOR OF THE PIPELINE COMPANY; AND A
DIRECTOR OF THE LOCAL GAS COMPANY AND OF THE INVESTMENT COMPANY WAS
VICE-PRESIDENT AND DIRECTOR OF THE PIPELINE COMPANY.  AN ILLINOIS
COMMISSION, IN A PROCEEDING UNDER THE ILLINOIS PUBLIC UTILITY ACT TO
DETERMINE WHETHER THE RATES OF THE LOCAL GAS COMPANY SHOULD BE REDUCED,
FOUND, ON EVIDENCE, THAT THE PIPELINE COMPANY - NOT A PARTY TO THE
PROCEEDING - WAS AN "AFFILIATE" OF THE LOCAL GAS COMPANY, WITHIN THE
MEANING OF THAT ACT, AND THAT, IN ORDER TO FIX REASONABLE RATES FOR THE
SALE OF GAS BY THE LOCAL GAS COMPANY, INQUIRY WAS NECESSARY INTO
OPERATING CHARGES, INCLUDING THE COST OF GAS PURCHASED FROM THE
PIPELINE COMPANY.  ACCORDINGLY IT MADE AN ORDER DIRECTING THE PIPELINE
COMPANY TO MAKE AVAILABLE FOR EXAMINATION BY THE COMMISSION ALL OF ITS
ACCOUNTS AND RECORDS RELATING TO TRANSACTIONS BETWEEN IT AND THE LOCAL
GAS COMPANY, AND TO FILE WITH THE COMMISSION A REPORT OF THE COST OF
PROPERTY USED IN, AND A STATEMENT OF INCOME AND EXPENSES IN CONNECTION
WITH, SUPPLYING GAS TO THAT COMPANY; OR, IN THE ALTERNATIVE, THAT IT
REPORT TO THE COMMISSION A STATEMENT OF THE COST OF ALL PROPERTIES USED
BY IT IN THE BUSINESS OF TRANSPORTING AND SELLING NATURAL GAS, TOGETHER
WITH A STATEMENT OF THE INCOME AND EXPENSES OF SUCH OPERATIONS. 

HELD, THAT THE ILLINOIS STATUTE IS NOT UNCONSTITUTIONAL IN SO FAR AS
IT DEMANDS ACCESS TO BOOKS AND ACCOUNTS OF THE PIPELINE COMPANY AND
REQUIRES PRODUCTION OF THE INFORMATION WHICH THE ORDER SEEKS.  P. 306. 

2.  THE REASONABLENESS OF THE PRICE AT WHICH A PUBLIC UTILITY COMPANY
BUYS THE PRODUCT WHICH IT SELLS IS AN APPROPRIATE SUBJECT OF
INVESTIGATION WHEN THE RESALE RATES ARE UNDER CONSIDERATION, AND ANY
RELATIONSHIP BETWEEN THE BUYER AND SELLER WHICH TENDS TO PREVENT ARM'S
LENGTH DEALING MAY HAVE AN IMPORTANT BEARING ON THE REASONABLENESS OF
THE SELLING PRICE.  P. 307. 

3.  THE CONSTITUTION DOES NOT REQUIRE THAT SUCH AN INQUIRY BE LIMITED
TO CASES WHERE COMMON CONTROL IS SECURED THROUGH OWNERSHIP OF A
MAJORITY OF VOTING STOCK.  P. 307. 

4.  COMMON MANAGEMENT OF CORPORATIONS THROUGH OFFICERS OR DIRECTORS,
OR COMMON OWNERSHIP OF A SUBSTANTIAL AMOUNT, THOUGH LESS THAN A
MAJORITY, OF THEIR STOCK, GIVES SUCH INDICATION OF UNIFIED CONTROL AS
TO CALL FOR CLOSE SCRUTINY OF A CONTRACT BETWEEN THEM WHENEVER THE
REASONABLENESS OF ITS TERMS IS THE SUBJECT OF INQUIRY.  P. 308. 

5.  AN INTERSTATE PIPELINE COMPANY CAN NOT BE BOUND BY AN ORDER OF A
STATE COMMISSION, WITH RESPECT TO ITS OWN RATES, OR ITS CONTRACT WITH A
LOCAL DISTRIBUTOR, IN A PROCEEDING CONCERNING THE DISTRIBUTOR'S RATES
TO WHICH THE PIPELINE COMPANY IS NOT A PARTY.  P. 308. 

6.  IT IS NOT TO BE PRESUMED THAT INFORMATION SOUGHT BY A STATE
COMMISSION FOR WHICH THERE IS A PROBABLE LEGITIMATE USE, WILL BE PUT TO
AN UNCONSTITUTIONAL USE.  P. 309. 

7.  APPLICATION FOR PRELIMINARY INJUNCTION CHALLENGING THE POWERS OF
A STATE COMMISSION UNDER THE STATE LAW, THE COMMERCE CLAUSE, AND THE
FOURTEENTH AMENDMENT, TO REQUIRE REPORTS FROM A CORPORATION
NECESSITATING GREAT EXPENSE, HELD PREMATURE, SINCE RECOURSE COULD HAVE
BEEN HAD TO THE COMMISSION ITSELF FOR A STAY AND A MODIFICATION WITHOUT
SUBJECTING THE APPLICANT TO STATUTORY PENALTIES.  P. 309. 

8.  THE RULE THAT A SUITOR MUST EXHAUST HIS ADMINISTRATIVE REMEDIES
BEFORE SEEKING THE EXTRAORDINARY RELIEF OF A COURT OF EQUITY, IS OF
ESPECIAL FORCE WHEN RESORT IS HAD TO THE FEDERAL COURTS TO RESTRAIN THE
ACTION OF STATE OFFICERS, AND THE OBJECTION HAS BEEN TAKEN BY THE TRIAL
COURT.  P. 310. 

9.  THE EXTENT TO WHICH A FEDERAL COURT MAY RELAX THIS RULE WHERE THE
ORDER OF THE ADMINISTRATIVE BODY IS ASSAILED IN ITS ENTIRETY, RESTS IN
SOUND DISCRETION; BUT THERE ARE COGENT REASONS FOR REQUIRING RESORT IN
THE FIRST INSTANCE TO THE ADMINISTRATIVE TRIBUNAL WHEN THE PARTICULAR
METHOD BY WHICH IT HAS CHOSEN TO EXERCISE AUTHORITY IS ALSO ATTACKED,
FOR THERE IS THE POSSIBILITY OF REMOVAL OF SUCH ISSUES FROM THE CASE BY
MODIFICATION OF ITS ORDER.  P. 311. 

NATURAL GAS PIPELINE CO. V. SLATTERY ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES DENYING A
PRELIMINARY INJUNCTION. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL PRESENTS THE QUESTION WHETHER THE COURT BELOW RIGHTLY
DENIED AN APPLICATION FOR AN INTERLOCUTORY INJUNCTION RESTRAINING
APPELLEES, MEMBERS OF THE ILLINOIS COMMERCE COMMISSION, FROM ENFORCING
AN ORDER BY WHICH APPELLANT WAS DIRECTED TO OPEN ITS RECORDS AND
ACCOUNTS TO INSPECTION BY THE COMMISSION AND TO FURNISH CERTAIN
STATISTICAL DATA FOR USE IN A PROCEEDING PENDING BEFORE IT. THE
PROCEEDING WAS BROUGHT TO FIX RATES CHARGED FOR GAS SOLD IN ILLINOIS BY
THE CHICAGO DISTRICT PIPE LINE COMPANY, AN AFFILIATED CORPORATION. 

APPELLANT, A DELAWARE CORPORATION, SELLS IN ILLINOIS NATURAL GAS,
WHICH IT TRANSPORTS THROUGH ITS PIPE LINES FROM OKLAHOMA TO POINTS IN
ILLINOIS WHERE, PURSUANT TO A LONG TERM CONTRACT, IT DELIVERS THE GAS
TO THE DISTRICT COMPANY, AN ILLINOIS CORPORATION.  THE LATTER IS
ENGAGED IN INTRASTATE COMMERCE IN ILLINOIS WHERE IT SELLS THE GAS,
WHICH IT PURCHASES FROM APPELLANT, TO OTHER COMPANIES WHICH IN TURN
DISTRIBUTE THE GAS TO CONSUMERS WITHIN THE STATE.  THE RATES OF THE
DISTRICT COMPANY ARE SUBJECT TO REGULATION BY THE COMMISSION, AS
PROVIDED BY THE ILLINOIS PUBLIC UTILITIES ACT.  ALL ITS SHARES OF STOCK
ARE OWNED BY THE NATURAL GAS INVESTMENT COMPANY, AN ILLINOIS
CORPORATION, WHICH OWNS 26.63% OF THE OUTSTANDING SHARES OF APPELLANT. 
OF THE EIGHT OR NINE DIRECTORS OF APPELLANT, AT ALL TIMES SINCE ITS
INCORPORATION, TWO HAVE BEEN MEMBERS OF THE BOARD OF DIRECTORS OF
EITHER THE INVESTMENT COMPANY OR OF CORPORATIONS WHOLLY CONTROLLING IT
OR THE DISTRICT COMPANY, THROUGH STOCK OWNERSHIP.  THE COMMISSION HAS
FOUND THAT THE PRESIDENT OF THE DISTRICT COMPANY IS PRESIDENT AND
DIRECTOR OF THE INVESTMENT COMPANY AND A DIRECTOR OF APPELLANT, AND
THAT A DIRECTOR OF THE DISTRICT COMPANY AND OF THE INVESTMENT COMPANY
IS A VICE-PRESIDENT AND DIRECTOR OF APPELLANT. 

1937, C. 111 2/3, SEC. 8A, GIVES THE COMMISSION JURISDICTION OVER
"AFFILIATED INTERESTS HAVING TRANSACTIONS, OTHER THAN OWNERSHIP OF
STOCK AND RECEIPT OF DIVIDENDS THEREON, WITH PUBLIC UTILITIES UNDER THE
JURISDICTION OF THE COMMISSION, TO THE EXTENT OF ACCESS TO ALL ACCOUNTS
AND RECORDS OF SUCH AFFILIATED INTERESTS RELATING TO SUCH TRANSACTIONS
...  AND TO THE EXTENT OF AUTHORITY TO REQUIRE SUCH REPORTS WITH
RESPECT TO SUCH TRANSACTIONS TO BE SUBMITTED BY SUCH AFFILIATED
INTERESTS, AS THE COMMISSION MAY PRESCRIBE."  THE SUBSECTION DEFINES
"AFFILIATED INTERESTS" AS MEANING: 

"(C)  EVERY CORPORATION, TEN PER CENTUM OR MORE OF WHOSE VOTING
CAPITAL STOCK IS OWNED BY ANY PERSON OR CORPORATION OWNING TEN PER
CENTUM OR MORE OF THE VOTING CAPITAL STOCK OF SUCH PUBLIC UTILITY,
... 

"(F)  EVERY CORPORATION WHICH HAS ONE OR MORE ELECTIVE OFFICERS OR
ONE OR MORE DIRECTORS IN COMMON WITH SUCH PUBLIC UTILITY."  FN1 

IN NOVEMBER, 1936, THE COMMISSION, IN THE EXERCISE OF ITS AUTHORITY
UNDER THE ACT, BEGAN A PROCEEDING TO WHICH THE DISTRICT COMPANY WAS,
AND APPELLANT WAS NOT, A PARTY, TO DETERMINE WHETHER THE RATES CHARGED
BY THE DISTRICT COMPANY SHOULD BE REDUCED.  AFTER HEARING EVIDENCE, THE
COMMISSION FOUND THAT APPELLANT WAS AN AFFILIATE OF THE DISTRICT
COMPANY AND THAT IN ORDER TO FIX REASONABLE RATES FOR THE SALE OF GAS
BY THE LATTER, INQUIRY WAS NECESSARY INTO ITS OPERATING CHARGES
INCLUDING THE COST OF GAS PURCHASED FROM APPELLANT.  THE COMMISSION
ACCORDINGLY MADE AN ORDER, THE VALIDITY OF WHICH IS ASSAILED HERE,
DIRECTING THAT APPELLANT MAKE AVAILABLE FOR EXAMINATION BY THE
COMMISSION ALL OF ITS ACCOUNTS AND RECORDS RELATING TO TRANSACTIONS
BETWEEN IT AND THE DISTRICT COMPANY.  IT FURTHER ORDERED THAT APPELLANT
FILE WITH THE COMMISSION A REPORT OF THE COST OF PROPERTY USED IN, AND
A STATEMENT OF INCOME AND EXPENSES IN CONNECTION WITH, SUPPLYING GAS TO
THE DISTRICT COMPANY; OR, IN THE ALTERNATIVE, THAT IT REPORT TO THE
COMMISSION A STATEMENT OF THE COST OF ALL PROPERTIES USED BY IT IN THE
BUSINESS OF TRANSPORTING AND SELLING NATURAL GAS, TOGETHER WITH A
STATEMENT OF THE INCOME AND EXPENSES OF SUCH OPERATIONS. 

IN THE PRESENT SUIT IN EQUITY, BROUGHT IN THE DISTRICT COURT FOR
NORTHERN ILLINOIS, PETITIONER PRAYED THAT APPELLEES BE ENJOINED FROM
ENFORCING THE ORDER AND THAT IT BE SET ASIDE AS MADE WITHOUT AUTHORITY
OF STATE LAW, AND ON THE FURTHER GROUNDS THAT THE STATUTE AND ORDER ARE
INVALID BECAUSE THEY VIOLATE THE COMMERCE, EQUAL PROTECTION AND DUE
PROCESS CLAUSES OF THE FEDERAL CONSTITUTION.  THE CASE COMES HERE ON
APPEAL, JUDICIAL CODE, SEC. 266, FROM THE ORDER OF THE DISTRICT COURT
OF THREE JUDGES, WHICH DENIED AN INTERLOCUTORY INJUNCTION.  IT HELD
THAT APPELLANT HAD FAILED TO SHOW THAT THE ORDER INFRINGED ANY
CONSTITUTIONAL IMMUNITY OR THAT APPELLANT WOULD SUFFER IRREPARABLE
INJURY BY REASON OF THE ACTION OF THE COMMISSION. 

THE COURT THOUGHT THAT THE COMMISSION, IN CONDUCTING THE PENDING RATE
PROCEEDING, AND IN INVESTIGATING THE REASONABLENESS OF THE OPERATING
COSTS OF THE DISTRICT COMPANY, WAS ENTITLED TO THE INFORMATION IT
SOUGHT, WHICH MIGHT BE DISCLOSED BY AN EXAMINATION OF APPELLANT'S
ACCOUNTS AND RECORDS; THAT FOR THAT PURPOSE THE COMMISSION WOULD HAVE
BEEN ENTITLED TO COMPEL THEIR PRODUCTION BY SUBPOENA; AND THAT AS
APPELLANT HAD FAILED TO PRESENT TO THE COMMISSION ANY OBJECTION TO THE
BREADTH OF THE ORDER, OR TO THE USE OF AN ORDER RATHER THAN A SUBPOENA
TO SECURE THE INFORMATION, NO CASE WAS MADE FOR THE INTERPOSITION OF A
COURT OF EQUITY. 

FIRST.  THE APPELLANT ASSAILS THE STATUTE AS UNCONSTITUTIONAL SO FAR
AS IT AUTHORIZES THE COMMISSION TO OBTAIN FROM APPELLANT'S BOOKS AND
RECORDS ANY INFORMATION BEARING UPON THE REASONABLENESS OF THE PRICE OF
GAS SOLD TO THE DISTRICT COMPANY.  APPELLANT RECOGNIZES THAT THE
ABSENCE OF "ARM'S LENGTH BARGAINING" BETWEEN CONTRACTING AFFILIATES IS
SUFFICIENT TO SUPPORT SUCH AN INQUIRY, AND MAY BE AN ADEQUATE GROUND,
IN FIXING THE REASONABLE RATES OF A PUBLIC UTILITY COMPANY, FOR
DISREGARDING THE PRICE AT WHICH IT PURCHASES THE COMMODITY
DISTRIBUTED.  SEE WESTERN DISTRIBUTING CO. V. PUBLIC SERVICE COMM'N,
285 U.S. 119.  BUT IT IS SAID THAT HERE THE STATUTE INFRINGES THE
COMMERCE CLAUSE AND THE FOURTEENTH AMENDMENT BECAUSE IT AUTHORIZES THE
INQUIRY WITHOUT PROOF OF COMMON CONTROL OR WANT OF ARM'S LENGTH
BARGAINING; THAT THE CONSTITUTION FORBIDS ALL INQUIRY AS TO THE
RELATIONS BETWEEN THE TWO COMPANIES AND THE PRICES AT WHICH THE GAS IS
SOLD BY ONE TO THE OTHER, IN ADVANCE OF PROOF OF THEIR COMMON CONTROL
OR OTHER EVIDENCE THAT THE BARGAINING WAS NOT AT ARM'S LENGTH. 
ASSUMING, WITHOUT DECIDING, THAT THE BREADTH OF THIS ATTACK RELIEVES
APPELLANT OF THE NECESSITY OF APPLYING TO THE COMMISSION TO VACATE ITS
ORDER BEFORE SEEKING EQUITABLE RELIEF IN THE FEDERAL COURTS, SEE HOLLIS
V. KUTZ, 255 U.S. 452; CF. UNITED STATES V. SING TUCK, 194 U.S. 161,
167, WE THINK THAT THE OBJECTION IS NOT SUBSTANTIAL. 

WE CAN FIND IN THE COMMERCE CLAUSE AND THE FOURTEENTH AMENDMENT NO
BASIS FOR SAYING THAT ANY PERSON IS IMMUNE FROM GIVING INFORMATION
APPROPRIATE TO A LEGISLATIVE OR JUDICIAL INQUIRY.  A FOREIGN
CORPORATION ENGAGED EXCLUSIVELY IN INTERSTATE COMMERCE WITHIN THE STATE
IS AMENABLE TO PROCESS THERE AS ARE CITIZENS AND CORPORATIONS ENGAGED
IN LOCAL BUSINESS.  INTERNATIONAL HARVESTER CO. V. KENTUCKY, 234 U.S.
579.  IT IS SIMILARLY SUBJECT TO GARNISHMENT AND WRIT OF ATTACHMENT. 
DAVIS V. CLEVELAND, C., C. & ST. L. RY. CO., 217 U.S. 157.  IT CAN BE
DEEMED TO BE NO LESS SUBJECT, ON COMMAND OF A STATE TRIBUNAL, TO THE
DUTY TO GIVE INFORMATION APPROPRIATE TO AN INQUIRY PENDING THERE.  THE
PRESENT INVESTIGATION IS NOT A REGULATION OF INTERSTATE COMMERCE AND IT
BURDENS THE COMMERCE NO MORE THAN THE OBLIGATION OWED BY ALL, EVEN
THOSE ENGAGED IN INTERSTATE COMMERCE, TO COMPLY WITH LOCAL LAWS AND
ORDINANCES, WHICH DO NOT IMPEDE THE FREE FLOW OF COMMERCE, WHERE
CONGRESS HAS NOT ACTED.  SMITH V. ALABAMA, 124 U.S. 465; RED "C" OIL
CO. V. BOARD OF AGRICULTURE, 222 U.S. 380; MINNESOTA RATE CASES, 230
U.S. 352, 402-412; CLYDE MALLORY LINES V. ALABAMA EX REL. STATE DOCKS
COMM'N, 296 U.S. 261, AND CASES CITED. 

THIS COURT HAS OFTEN RECOGNIZED THAT THE REASONABLENESS OF THE PRICE
AT WHICH A PUBLIC UTILITY COMPANY BUYS THE PRODUCT WHICH IT SELLS IS AN
APPROPRIATE SUBJECT OF INVESTIGATION WHEN THE RESALE RATES ARE UNDER
CONSIDERATION, AND THAT ANY RELATIONSHIP BETWEEN THE BUYER AND SELLER
WHICH TENDS TO PREVENT ARM'S LENGTH DEALING MAY HAVE AN IMPORTANT
BEARING ON THE REASONABLENESS OF THE SELLING PRICE.  UNITED FUEL & GAS
CO. V. RAILROAD COMMISSION, 278 U.S. 300, 320; SMITH V. ILLINOIS BELL
TEL. CO., 282 U.S. 133, 144; WESTERN DISTRIBUTING CO. V. PUBLIC SERVICE
COMM'N, SUPRA, 124; DAYTON POWER & L. CO. V. PUBLIC UTILITIES COMM'N,
292 U.S. 290.  WE HAVE NOT SAID, NOR DO WE PERCEIVE ANY GROUND FOR
SAYING, THAT THE CONSTITUTION REQUIRES SUCH AN INQUIRY TO BE LIMITED TO
THOSE CASES WHERE COMMON CONTROL OF THE TWO CORPORATIONS IS SECURED
THROUGH OWNERSHIP OF A MAJORITY OF THEIR VOTING STOCK.  WE ARE NOT
UNAWARE THAT, AS THE STATUTE RECOGNIZES,  FN2  THERE ARE OTHER METHODS
OF CONTROL OF A CORPORATION THAN THROUGH SUCH OWNERSHIP.  COMMON
MANAGEMENT OF CORPORATIONS THROUGH OFFICERS OR DIRECTORS, OR COMMON
OWNERSHIP OF A SUBSTANTIAL AMOUNT, THOUGH LESS THAN A MAJORITY OF THEIR
STOCK, GIVES SUCH INDICATION OF UNIFIED CONTROL AS TO CALL FOR CLOSE
SCRUTINY OF A CONTRACT BETWEEN THEM WHENEVER THE REASONABLENESS OF ITS
TERMS IS THE SUBJECT OF INQUIRY.  IN THESE CIRCUMSTANCES APPELLANT CAN
HARDLY OBJECT TO THE ATTEMPTED INQUIRY INTO THE FAIRNESS OF THE PRICE. 
CF. CORSICANA NATIONAL BANK V. JOHNSON, 251 U.S. 68, 90, AND CASES
CITED; GEDDES V. ANACONDA COPPER MINING CO., 254 U.S. 590, 599; WESTERN
DISTRIBUTING CO. V. PUBLIC SERVICE COMM'N, SUPRA, 124; GLOBE WOOLEN CO.
V. UTICA GAS & ELEC.  CO., 224 N.Y. 483; 121 N.E. 78.  THE PRICE ITSELF
MAY BE FOUND TO BE SO EXORBITANT AS TO PERSUADE THAT THE BARGAINING WAS
NOT AT ARM'S LENGTH.  CORSICANA NATIONAL BANK V. JOHNSON, SUPRA.  WE
CANNOT SAY THAT THE ILLINOIS STATUTE IS SUBJECT TO ANY CONSTITUTIONAL
INFIRMITY IN SO FAR AS IT DEMANDS ACCESS TO THE BOOKS AND ACCOUNTS OF
APPELLANT OR REQUIRES PRODUCTION OF THE INFORMATION WHICH THE ORDER
SEEKS. 

SECOND.  APPELLANT ALSO CHALLENGES THE ORDER OF THE COMMISSION AS A
FIRST STEP IN THE DIRECTION OF UNCONSTITUTIONAL ACTION.  BUT APPELLANT
IS NOT A PARTY TO THE PENDING PROCEEDING, WHOSE ULTIMATE CONCERN IS THE
RATES OF THE DISTRICT COMPANY.  IN THAT PROCEEDING THE COMMISSION CAN
MAKE NO ORDER BINDING ON APPELLANT WITH RESPECT TO ITS OWN RATES OR ITS
CONTRACT.  CF. STATE CORPORATION COMM'N V. WICHITA GAS CO., 290 U.S.
561.  THERE IS NO CONTENTION THAT THE COMMISSION THREATENS TO MAKE ANY
ORDER MODIFYING OR CANCELLING EITHER.  THE STATUTE DOES NOT PRESCRIBE
THE EFFECT WHICH THE COMMISSION IS TO GIVE TO THE INFORMATION SOUGHT. 
ASSUMING WITHOUT DECIDING THAT IT CANNOT RIGHTLY BE MADE THE BASIS FOR
DISREGARDING THE PRICE AT WHICH APPELLANT SELLS GAS TO THE DISTRICT
COMPANY, UNLESS AS THE RESULT OF THE INQUIRY THERE APPEARS TO BE IN
SOME FORM AN EFFECTIVE SINGLE CONTROL OF THE TWO COMPANIES, WE CANNOT
ALSO ASSUME THAT THE COMMISSION WILL ARBITRARILY MAKE SUCH USE OF IT IN
FIXING THE DISTRICT COMPANY'S RATES.  IT WILL BE TIME ENOUGH TO
CHALLENGE SUCH ACTION OF THE COMMISSION WHEN IT IS TAKEN OR AT LEAST
THREATENED, FIRST NATIONAL BANK V. ALBRIGHT, 208 U.S. 548; DALTON
ADDING MACHINE CO. V. STATE CORPORATION COMM'N, 236 U.S. 699, AND TO
CONSIDER WHETHER APPELLANT HAS STANDING TO MAKE THE CHALLENGE.  THE
COMMISSION IS NOT TO BE ENJOINED FROM SEEKING INFORMATION WHOSE
PROBABLE USEFULNESS IS ESTABLISHED, AS IT IS IN THIS CASE, BY THE
STATUTORY PREREQUISITE OF PARTIAL COMMUNITY OF MANAGEMENT OR STOCK
OWNERSHIP. 

THIRD.  APPELLANT URGES THAT, IN REQUIRING STATISTICAL REPORTS, THE
EXPENSE OF WHOSE PREPARATION IS SAID TO BE GREAT, THE ORDER TRANSCENDS
STATUTORY AUTHORITY, OR EXERCISES IT SO ARBITRARILY AS TO PLACE AN
UNCONSTITUTIONAL BURDEN ON COMMERCE AND INFRINGE THE FOURTEENTH
AMENDMENT.  IT IS SAID THAT EQUITY ALONE CAN AFFORD ADEQUATE RELIEF
BECAUSE OF THE CUMULATIVE PENALTIES FOR FAILURE TO COMPLY WITH THE
ORDER.  SEE SECS. 76 AND 77 OF THE ACT. 

WE HAVE NO OCCASION TO CONSIDER THE MERITS OF THESE OBJECTIONS.  IT
SUFFICES TO SAY THAT THE STATUTE ITSELF PROVIDES AN ADEQUATE
ADMINISTRATIVE REMEDY WHICH APPELLANT HAS NOT SOUGHT.  BY SECS. 64 AND
65 OF THE ACT THE COMMISSION WAS AUTHORIZED ON ITS OWN MOTION OR ON
APPLICATION OF APPELLANT TO ORDER A HEARING TO ASCERTAIN WHETHER THE
PRESENT ORDER WAS "IMPROPER, UNREASONABLE OR CONTRARY TO LAW."  SECTION
67 AUTHORIZES THE COMMISSION AT ANY TIME, UPON PROPER NOTICE AND
HEARING, TO "RESCIND, ALTER OR AMEND ANY  ...  ORDER OR DECISION MADE
BY IT."  WE SEE NO REASON, AND APPELLANT SUGGESTS NONE, FOR REJECTING
THE TRIAL COURT'S RULING THAT THE COMMISSION, IF ASKED, COULD HAVE
MODIFIED ITS ORDER, OR FOR CONCLUDING THAT THE COMMISSION WAS WITHOUT
AUTHORITY TO SUSPEND OR POSTPONE THE DATE OF THE EFFECTIVE OPERATION OF
THE ORDER SO AS TO AVOID THE RUNNING OF PENALTIES, PENDING APPLICATION
FOR ITS MODIFICATION.  PORTER V. INVESTORS SYNDICATE, 286 U.S. 461,
470; 287 U.S. 346.    AS THE ACT IMPOSES PENALTIES OF FROM $500 TO
$2,000 A DAY FOR FAILURE TO COMPLY WITH THE ORDER, ANY APPLICATION OF
THE STATUTE SUBJECTING APPELLANT TO THE RISK OF THE CUMULATIVE
PENALTIES PENDING AN ATTEMPT TO TEST THE VALIDITY OF THE ORDER IN THE
COURTS AND FOR A REASONABLE TIME AFTER DECISION, WOULD BE A DENIAL OF
DUE PROCESS, EX PARTE YOUNG, 209 U.S. 123, 147; MISSOURI PACIFIC RY.
CO. V. TUCKER, 230 U.S. 340, 349; SEE WADLEY SOUTHERN RY. CO. V.
GEORGIA, 235 U.S. 651, 659, BUT NO REASON APPEARS WHY APPELLANT COULD
NOT HAVE ASKED THE COMMISSION TO POSTPONE THE DATE OF OPERATION OF THE
ORDER PENDING APPLICATION TO THE COMMISSION FOR MODIFICATION.  REFUSAL
OF POSTPONEMENT WOULD HAVE BEEN THE OCCASION FOR RECOURSE TO THE
COURTS.  COMPARE OKLAHOMA NATURAL GAS CO. V. RUSSELL, 261 U.S. 290,
293, WITH PRENTIS V. ATLANTIC COAST LINE, 211 U.S. 210; EX PARTE YOUNG,
SUPRA, 156.  BUT APPELLANT DID NOT ASK POSTPONEMENT. 

A TEMPORARY INJUNCTION WAS NOT NECESSARY TO PROTECT APPELLANT FROM
PENALTIES PENDING FINAL DETERMINATION OF THE SUIT.  THE COMMISSION
AGREED NOT TO ENFORCE THE ORDER BEFORE THE DECISION OF THE LOWER COURT
ON THE APPLICATION FOR INTERLOCUTORY INJUNCTION.  IN ORDER TO GIVE
APPELLANT OPPORTUNITY TO APPEAL HERE THE DISTRICT COURT STAYED, FOR
THIRTY DAYS, ITS ORDER DENYING AN INJUNCTION, AND BY AN ORDER OF A
JUSTICE OF THIS COURT THE OPERATION OF THE COMMISSION'S ORDER AND THE
RUNNING OF PENALTIES WERE ENJOINED PENDING THE DISPOSITION OF THE CAUSE
HERE. 

THE RULE THAT A SUITOR MUST EXHAUST HIS ADMINISTRATIVE REMEDIES
BEFORE SEEKING THE EXTRAORDINARY RELIEF OF A COURT OF EQUITY, GOLDSMITH
V. U.S. BOARD OF TAX APPEALS, 270 U.S. 117, 123; PORTER V. INVESTORS
SYNDICATE, SUPRA; PETERSEN BAKING CO. V. BRYAN, 290 U.S. 570, 575; SEE
UNITED STATES V. ILLINOIS CENTRAL R. CO., 291 U.S. 457, 463, 464-466,
IS OF ESPECIAL FORCE WHEN RESORT IS HAD TO THE FEDERAL COURTS TO
RESTRAIN THE ACTION OF STATE OFFICERS, MATTHEWS V. RODGERS, 284 U.S.
521, 525-526; PORTER V. INVESTORS SYNDICATE, 286 U.S. 461; 287 U.S.
346; CF. CENTRAL KENTUCKY NATURAL GAS CO. V. RAILROAD COMMISSION, 290
U.S. 264, 271; DI GIOVANNI V. CAMDEN FIRE INS. ASSN., 296 U.S. 64, AND
THE OBJECTION HAS BEEN TAKEN BY THE TRIAL COURT.  MATTHEWS V. RODGERS,
SUPRA. 

THE EXTENT TO WHICH A FEDERAL COURT MAY RIGHTLY RELAX THE RULE WHERE
THE ORDER OF THE ADMINISTRATIVE BODY IS ASSAILED IN ITS ENTIRETY, RESTS
IN THE SOUND DISCRETION WHICH GUIDES EXERCISE OF EQUITY JURISDICTION. 
HOLLIS V. KUTZ, SUPRA; UNITED STATES V. ABILENE & SOUTHERN RY. CO., 265
U.S. 274, 282; CF. UNITED STATES V. SING TUCK, SUPRA.  BUT THERE ARE
COGENT REASONS FOR REQUIRING RESORT IN THE FIRST INSTANCE TO THE
ADMINISTRATIVE TRIBUNAL WHEN THE PARTICULAR METHOD BY WHICH IT HAS
CHOSEN TO EXERCISE AUTHORITY, A MATTER PECULIARLY WITHIN ITS
COMPETENCE, IS ALSO UNDER ATTACK, FOR THERE IS THE POSSIBILITY OF
REMOVAL OF THESE ISSUES FROM THE CASE BY MODIFICATION OF ITS ORDER. 
HERE THE COMMISSION HAD AUTHORITY TO PASS UPON EVERY QUESTION RAISED BY
THE APPELLANT AND WAS ABLE TO MODIFY THE ORDER.  IN SUCH CIRCUMSTANCES
THE TRIAL COURT IS FREE TO WITHHOLD ITS AID ENTIRELY UNTIL
ADMINISTRATIVE REMEDIES HAVE BEEN EXHAUSTED.  AFFIRMED. 

FN1  SECTION 8(A)(2) ALSO PROVIDES THAT "AFFILIATED INTERESTS" MEAN: 

"(G)  EVERY CORPORATION OR PERSON WHICH THE COMMISSION MAY DETERMINE
AS A MATTER OF FACT AFTER INVESTIGATION AND HEARING IS ACTUALLY
EXERCISING ANY SUBSTANTIAL INFLUENCE OVER THE POLICIES AND ACTIONS OF
SUCH PUBLIC UTILITY EVEN THOUGH SUCH INFLUENCE IS NOT BASED UPON STOCK
HOLDING, STOCKHOLDERS, DIRECTORS OR OFFICERS TO THE EXTENT SPECIFIED IN
THIS SECTION. 

"(H)  EVERY PERSON OR CORPORATION WHO OR WHICH THE COMMISSION MAY
DETERMINE AS A MATTER OF FACT AFTER INVESTIGATION AND HEARING IS
ACTUALLY EXERCISING SUCH SUBSTANTIAL INFLUENCE OVER THE POLICIES AND
ACTIONS OF SUCH PUBLIC UTILITY IN CONJUNCTION WITH ONE OR MORE OTHER
CORPORATIONS OR PERSONS WITH WHICH OR WHOM THEY ARE RELATED BY
OWNERSHIP OR BLOOD RELATIONSHIP OR BY ACTION IN CONCERT THAT TOGETHER
THEY ARE AFFILIATED WITH SUCH PUBLIC UTILITY WITHIN THE MEANING OF THIS

FN2  SEE FOOTNOTE 1, SUPRA.
..END :




FRAD V. KELLY, 302 U.S. 312 


NO. 87.  ARGUED NOVEMBER 9, 10, 1937.  - DECIDED DECEMBER 6, 1937.  - 89
F.(2D) 866, AFFIRMED. 


1.  WHERE A DEFENDANT IN A CRIMINAL PROSECUTION IN THE FEDERAL
DISTRICT COURT PLEADS GUILTY UPON THREE SEPARATE INDICTMENTS, THE COURT
MAY IMPOSE A SENTENCE OF FINE AND IMPRISONMENT UPON ONE INDICTMENT, AND
ON EACH OF THE OTHERS MAY SUSPEND THE IMPOSITION OF SENTENCE AND PLACE
THE DEFENDANT ON PROBATION FOR A DEFINITE PERIOD TO BEGIN UPON
COMPLETION OF SERVICE OF THE SENTENCE ON THE FIRST.  PROBATION ACT OF
1925, SECS. 1-2; 18 U.S.C., SECS. 724-725.  P. 315. 

2.  A FEDERAL DISTRICT JUDGE WHO, WHILE SITTING IN A CRIMINAL CASE IN
A DISTRICT TO WHICH HE HAD BEEN ASSIGNED PURSUANT TO R.S. SEC. 591, AS
AMENDED, HAD, UPON A PLEA OF GUILTY, SUSPENDED SENTENCE AND PLACED THE
DEFENDANT UPON PROBATION, IS WITHOUT AUTHORITY, AFTER THE TERMINATION
OF HIS SERVICE IN THAT DISTRICT, TO MAKE AN ORDER REVOKING THE
PROBATION AND TERMINATING THE PROCEEDINGS AGAINST THE PROBATIONER.  P.
317. 

3.  A COURT OTHER THAN THAT IN WHICH THE JUDGMENT AND SENTENCE ARE
RECORDED IS WITHOUT AUTHORITY, EITHER UNDER THE PROBATION ACT OR THE
STATUTE PROVIDING FOR THE ASSIGNMENT OF JUDGES, TO MAKE AN ORDER,
PURSUANT TO SEC. 2 OF THE PROBATION ACT, REVOKING PROBATION AND
TERMINATING THE PROCEEDINGS AGAINST THE PROBATIONER.  P. 318. 

4.  LIMITATIONS UPON THE JURISDICTION OF THE ASSIGNED JUDGE CAN NOT
BE WAIVED BY THE ACTIONS OF THE PROBATION OFFICER OR OF THE DISTRICT
ATTORNEY.  P. 319. 

FRAD V. KELLY, U.S. MARSHAL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 301 U.S. 681, TO REVIEW A JUDGMENT REVERSING ORDERS OF
THE DISTRICT COURT WHICH DISCHARGED THE PETITIONER UPON A WRIT OF
HABEAS CORPUS AND DENIED A MOTION BY THE GOVERNMENT TO SENTENCE HIM
UPON INDICTMENTS UNDER WHICH PROBATION HAD BEEN GRANTED. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PETITIONER PLEADED GUILTY TO THREE INDICTMENTS IN THE DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.  JUDGE INCH, A DISTRICT
JUDGE OF THE EASTERN DISTRICT OF NEW YORK, WHO HAD BEEN DESIGNATED AND
ASSIGNED TO SIT IN THE SOUTHERN DISTRICT, PURSUANT TO R.S. 591, AS
AMENDED, FN1  RECEIVED THE PLEAS AND IMPOSED A SENTENCE UNDER THE FIRST
INDICTMENT (NO. C 96-116) OF TWO YEARS' IMPRISONMENT AND $1,000 FINE. 
UNDER THE OTHER INDICTMENTS HE MADE IDENTICAL ORDERS: "IMPOSITION OF
SENTENCE SUSPENDED.  PROBATION FOR FOUR YEARS TO BEGIN AFTER SERVING
SENTENCE ON C 96-116.  SUBJECT TO THE STANDING PROBATION ORDERS OF THIS
COURT."  THE PETITIONER PAID HIS FINE AND SERVED HIS SENTENCE AND
THEREUPON ENTERED UPON HIS PERIOD OF PROBATION. 

TWENTY MONTHS AFTER JUDGE INCH HAD RETURNED TO HIS OWN DISTRICT,
APPLICATION WAS MADE TO HIM AT CHAMBERS, TO DISCHARGE THE PETITIONER
FROM PROBATION AND TO TERMINATE THE PROCEEDINGS AGAINST HIM, PURSUANT
TO SEC. 2 OF THE PROBATION ACT OF MARCH 4, 1925.  FN2  THE JUDGE
DIRECTED THAT NOTICE OF THE APPLICATION BE GIVEN TO THE PROBATION
OFFICER OF THE SOUTHERN DISTRICT OF NEW YORK.  THIS WAS DONE AND, AFTER
A HEARING ON THE MERITS IN THE EASTERN DISTRICT, AT WHICH THE PROBATION
OFFICER WAS PRESENT AND TOOK PART, JUDGE INCH ENTERED AN ORDER REVOKING
THE PROBATION, DISCHARGING THE PETITIONER FROM FURTHER SUPERVISION AND
TERMINATING THE PROCEEDINGS AGAINST HIM.  THE ORDER WAS CAPTIONED IN
THE "UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK" AND WAS FILED IN THE OFFICE OF THE CLERK OF THAT COURT. 

ABOUT A YEAR LATER, ON A PETITION BY THE PROBATION OFFICER OF THE
SOUTHERN DISTRICT, A JUDGE SITTING IN THAT DISTRICT AUTHORIZED A
WARRANT FOR THE PETITIONER'S APPREHENSION UPON A CHARGE OF VIOLATION OF
THE TERMS OF HIS PROBATION.  THE PETITIONER WAS ARRESTED AND ADMITTED
TO BAIL PENDING A HEARING. 

THEREAFTER THE UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT MOVED
TO VACATE THE ORDER OF JUDGE INCH TERMINATING THE PROBATION AND THE
PROCEEDINGS.  BY STIPULATION OF COUNSEL, JUDGE INCH RETURNED TO THE
SOUTHERN DISTRICT TO HEAR THE PARTIES UPON THIS MOTION BUT HE ENTERED
NO ORDER SINCE, MEANTIME, THE PETITIONER HAD SURRENDERED HIMSELF TO THE
MARSHAL AND SOUGHT A WRIT OF HABEAS CORPUS, AND THE UNITED STATES
ATTORNEY HAD MOVED BEFORE A JUDGE SITTING IN THE SOUTHERN DISTRICT THAT
THE PETITIONER BE SENTENCED ON THE TWO INDICTMENTS UNDER WHICH SENTENCE
HAD BEEN SUSPENDED.  FN3  THE PETITION FOR THE WRIT AND THE MOTION FOR
SENTENCE WERE HEARD TOGETHER; THE PETITION WAS GRANTED, AND THE MOTION
WAS DENIED.  THE CIRCUIT COURT OF APPEALS REVERSED AND REMANDED THE
CAUSE "FOR THE CONSIDERATION OF THE REVOCATION OF (THE PETITIONER'S)
PROBATION AND FOR SENTENCE IF WARRANTED."  FN4 

WE GRANTED THE WRIT OF CERTIORARI BECAUSE OF THE IMPORTANCE OF THE
QUESTIONS PRESENTED IN THE ADMINISTRATION OF THE PROBATION ACT.  WE
HOLD THAT THE JUDGMENT OF THE COURT BELOW WAS RIGHT. 

FIRST.  THE CONTENTION THAT THE TRIAL COURT WAS WITHOUT POWER TO
SUSPEND THE IMPOSITION OF SENTENCES ON THE PLEAS OF GUILTY TO TWO OF
THE INDICTMENTS AND PLACE THE DEFENDANT ON PROBATION EFFECTIVE AFTER
COMPLETION OF SERVICE OF SENTENCE ON THE THIRD INDICTMENT IS WITHOUT
MERIT.  BASED UPON THIS CONTENTION THE PETITIONER SAYS THAT WHEN HE HAD
COMPLETED SERVICE OF THE SENTENCE IMPOSED ON INDICTMENT C 96-116 THERE
REMAINED NO SENTENCE AGAINST HIM AND THE TERM HAVING LONG SINCE EXPIRED
THE COURT WAS WITHOUT POWER THEN TO IMPOSE ONE. 

THE PROBATION ACT (SUPRA) PROVIDES, IN SEC. 1, THAT UNITED STATES
COURTS HAVING ORIGINAL JURISDICTION OF CRIMINAL ACTIONS, BEING
SATISFIED THAT THE ENDS OF JUSTICE AND THE BEST INTERESTS OF THE PUBLIC
AND OF THE DEFENDANT WILL BE SERVED THEREBY, SHALL HAVE POWER, AFTER
CONVICTION FOR ANY CRIME OR OFFENSE NOT PUNISHABLE BY DEATH OR LIFE
IMPRISONMENT, "TO SUSPEND THE IMPOSITION OR EXECUTION OF SENTENCE AND
TO PLACE THE DEFENDANT UPON PROBATION FOR SUCH PERIOD AND UPON SUCH
TERMS AND CONDITIONS AS THEY MAY DEEM BEST," OR TO IMPOSE A FINE AND
PLACE THE DEFENDANT UPON PROBATION; TO REVOKE OR MODIFY ANY CONDITION
OF PROBATION OR CHANGE THE PERIOD THEREOF, PROVIDED THAT THE PERIOD
WITH ANY EXTENSIONS SHALL NOT EXCEED FIVE YEARS.  THE ACT WAS INTENDED
TO CURE THE LACK OF POWER INDEFINITELY TO SUSPEND A SENTENCE, UNDER
WHICH DISTRICT COURTS LABORED PRIOR TO THE ENACTMENT.  FN5 

THE SECOND SECTION PROVIDES THAT AT ANY TIME WITHIN THE PROBATION
PERIOD, OR AT ANY TIME AFTER THE PROBATION PERIOD BUT WITHIN THE
MAXIMUM PERIOD FOR WHICH THE DEFENDANT MIGHT ORIGINALLY HAVE BEEN
SENTENCED, THE PROBATIONER MAY BE SUMMONED BEFORE THE COURT AND "THE
COURT MAY REVOKE THE PROBATION OR THE SUSPENSION OF SENTENCE, AND MAY
IMPOSE ANY SENTENCE WHICH MIGHT ORIGINALLY HAVE BEEN IMPOSED."  THE
ACTION OF THE TRIAL COURT IN SUSPENDING SENTENCE AND IMPOSING PROBATION
ON TWO OF THE INDICTMENTS WAS IN STRICT ACCORDANCE WITH THE AUTHORITY
THUS EXPLICITLY CONFERRED.  THE VALIDITY OF THE CITED PROVISIONS IS NOT
OPEN TO QUESTION.  FN6  THE MERE FACT THAT A SENTENCE OF A FINE AND
IMPRISONMENT HAD BEEN IMPOSED UPON ONE OF THE INDICTMENTS IN NO WAY
MILITATED AGAINST THE PRESCRIPTION OF PROBATION IN RESPECT OF THE PLEA
OF GUILTY UNDER THE OTHER TWO.  FN7 

SECOND.  THE ORDER OF JUDGE INCH, SITTING IN THE EASTERN DISTRICT,
AFTER THE TERMINATION OF HIS SERVICE IN THE SOUTHERN DISTRICT, WAS
NULL.  THE STATUTE PROVIDING FOR DESIGNATION AND ASSIGNMENT OF A
DISTRICT JUDGE TO SIT TEMPORARILY IN ANOTHER DISTRICT THAN HIS OWN DOES
NOT AUTHORIZE THE ORDER, AND THE EXPRESS PROVISIONS AND OBVIOUS INTENT
OF THE PROBATION ACT NEGATE THE POWER OF ANY JUDGE, OTHER THAN A JUDGE
OF THE SOUTHERN DISTRICT OF NEW YORK, TO MAKE IT. 

THE ACT OF MARCH 3, 1911, SEC. 18, AS AMENDED,  FN8  PROVIDES:  "ANY
DESIGNATED AND ASSIGNED JUDGE WHO HAS HELD COURT IN ANOTHER DISTRICT
THAN HIS OWN SHALL HAVE POWER, NOTWITHSTANDING HIS ABSENCE FROM SUCH
DISTRICT AND THE EXPIRATION OF THE TIME LIMIT IN HIS DESIGNATION, TO
DECIDE ALL MATTERS WHICH HAVE BEEN SUBMITTED TO HIM WITHIN SUCH
DISTRICT, TO DECIDE MOTIONS FOR NEW TRIALS, SETTLE BILLS OF EXCEPTIONS,
CERTIFY OR AUTHENTICATE NARRATIVES OF TESTIMONY, OR PERFORM ANY OTHER
ACT REQUIRED BY LAW OR THE RULES TO BE PERFORMED IN ORDER TO PREPARE
ANY CASE SO TRIED BY HIM FOR REVIEW IN AN APPELLATE COURT;...." 

WHEN AN ASSIGNED JUDGE HAS PRESIDED AT THE TRIAL OF A CAUSE, HE IS TO
HAVE POWER, THOUGH THE PERIOD OF HIS SERVICE HAS EXPIRED, AND THOUGH HE
MAY HAVE RETURNED TO HIS OWN DISTRICT, TO PERFORM THE FUNCTIONS WHICH
ARE INCIDENTAL AND SUPPLEMENTARY TO THE DUTIES PERFORMED BY HIM WHILE
PRESENT AND ACTING IN THE DESIGNATED DISTRICT.  AND WHERE A CAUSE HAS
BEEN SUBMITTED TO HIM IN THE DESIGNATED DISTRICT, AFTER HIS RETURN TO
HIS OWN DISTRICT HE MAY ENTER DECREES OR ORDERS AND FILE OPINIONS
NECESSARY TO DISPOSE OF THE CASE, NOTWITHSTANDING THE TERMINATION OF
HIS PERIOD OF SERVICE IN THE FOREIGN DISTRICT.  BUT THE ACT GOES NO
FARTHER.  IT CLEARLY DOES NOT CONTEMPLATE THAT HE SHALL DECIDE ANY
MATTER WHICH HAS NOT BEEN SUBMITTED TO HIM WITHIN THE DESIGNATED
DISTRICT.  A CRIMINAL TRIAL IS CONCLUDED BY THE JUDGMENT OF SENTENCE
ENTERED UPON A PLEA OR A VERDICT OF GUILT.  BY EXPRESS PROVISION OF THE
STATUTE AN ASSIGNED JUDGE MAY THEREAFTER, NOTWITHSTANDING THE
EXPIRATION OF HIS TERM OF SERVICE, HEAR A MOTION FOR A NEW TRIAL AND DO
ALL THINGS NECESSARY TO PREPARE A RECORD FOR AN APPELLATE COURT, BUT NO
AUTHORITY IS GIVEN TO HEAR A NEW MATTER EVEN THOUGH THAT NEW MATTER MAY
ARISE IN THE SAME CASE.  AN APPLICATION FOR THE TERMINATION OF THE
PROBATION AND THE PROCEEDINGS AGAINST A DEFENDANT CONSTITUTES A NEW
MATTER, SUBMISSION OF WHICH MAY NOT BE MADE TO THE ASSIGNED JUDGE AFTER
HIS RETURN TO HIS OWN DISTRICT.  THE APPROPRIATE PLACE FOR ITS
PRESENTATION IS THE COURT IN WHICH THE JUDGMENT OF CONVICTION AND THE
SENTENCE ARE RECORDED.  IN THE ABSENCE OF EXPRESS AUTHORIZATION NO
POWER TO DEAL WITH SUCH AN APPLICATION IS VESTED IN ANY OTHER COURT. 

ALL THE RELEVANT PROVISIONS OF THE PROBATION ACT REFER TO THE COURT
IN WHICH THE GUILT OF THE DEFENDANT WAS DETERMINED AND SENTENCE
IMPOSED.  THE FIRST SECTION EMPOWERS THE COURT HAVING JURISDICTION OF
THE ACTION TO PLACE THE DEFENDANT UPON PROBATION, AND TO REVOKE OR
MODIFY THE CONDITIONS OF THE PROBATION.  THE SECOND REQUIRES THE
PROBATION OFFICER, WHEN DIRECTED BY THE COURT, TO REPORT TO THE COURT
AS TO THE CONDUCT OF THE PROBATIONER; AUTHORIZES THE COURT EITHER TO
DISCHARGE THE PROBATIONER FROM FURTHER SUPERVISION OR TO TERMINATE THE
PROCEEDINGS AGAINST HIM OR TO EXTEND THE PERIOD OF PROBATION, TO ISSUE
A WARRANT, UPON A PROPER SHOWING, FOR THE PROBATIONER'S ARREST AND,
UPON A HEARING, TO REVOKE THE PROBATION OR THE SUSPENSION OF SENTENCE
AND TO IMPOSE A SENTENCE WHICH MIGHT HAVE ORIGINALLY BEEN IMPOSED. 
APPOINT ONE OR MORE SUITABLE PERSONS AS PROBATION OFFICERS "WITHIN THE
JURISDICTION AND UNDER THE DISCRETION OF THE JUDGE MAKING SUCH
APPOINTMENT OR OF HIS SUCCESSOR."  SECTION FOUR PLACES UPON A PROBATION
OFFICER THE DUTY TO INVESTIGATE ANY CASE REFERRED TO HIM FOR
INVESTIGATION BY THE COURT IN WHICH HE IS SERVING AND TO REPORT THEREON
TO THE COURT, AND SUCH OTHER DUTIES AS THE COURT MAY DIRECT. 

THUS THE TRIAL COURT HAS COMPLETE SUPERVISION OVER THE PROBATIONER FOR
THE PERIOD OF HIS PROBATION AND FOR THE TERM OF THE MAXIMUM SENTENCE
WHICH MIGHT HAVE BEEN IMPOSED.  THIS JURISDICTION IS VESTED IN THE
TRIAL COURT AND IN NO OTHER.  TO HOLD THAT A JUDGE OF ANOTHER DISTRICT,
MERELY BECAUSE HE HAD TEMPORARILY SAT AT THE TRIAL AND CONVICTION OF A
DEFENDANT AND IMPOSED SENTENCE, COULD, FROM THAT OTHER DISTRICT,
SUPERVISE, EXTEND, MODIFY OR TERMINATE THE PROBATION, WOULD BE TO
IGNORE THE INTENT OF THE LAW.  IT WOULD MOREOVER RESULT IN CONFUSION
AND INCONVENIENCE IN THE ADMINISTRATION OF THE PROBATION ACT.  IT WOULD
MEAN THAT THE UNITED STATES ATTORNEY AND HIS ASSISTANTS, AND A
PROBATION OFFICER OF THE COURT IN WHICH THE JUDGMENT IS RECORDED, WOULD
BE REQUIRED TO GO TO DISTANT PARTS TO BE HEARD UPON THE MERITS OF ANY
APPLICATION BY THE PROBATIONER AND THAT THE PROBATIONER, AT HIS WILL,
COULD INSTITUTE PROCEEDINGS EITHER BEFORE A JUDGE OF THE COURT IN WHICH
HIS CONVICTION IS RECORDED OR THE JUDGE IN A DIFFERENT DISTRICT WHO HAD
BEEN A TEMPORARY MEMBER OF THAT COURT.  SUCH A POSSIBILITY WAS
CERTAINLY NEVER INTENDED.  PROBATION IS A SYSTEM OF TUTELAGE UNDER THE
SUPERVISION AND CONTROL OF THE COURT WHICH HAS JURISDICTION OVER THE
CONVICTED DEFENDANT, HAS THE RECORD OF HIS CONVICTION AND SENTENCE, THE
RECORDS AND REPORTS AS TO HIS COMPLIANCE WITH THE CONDITIONS OF HIS
PROBATION, AND THE AID OF THE LOCAL PROBATION OFFICER, UNDER WHOSE
SUPERVISION THE DEFENDANT IS PLACED.  THIS JURISDICTION IS NOT DIVIDED
BETWEEN THAT COURT AND A DISTANT JUDGE WHO SAT BY DESIGNATION AT THE
DEFENDANT'S TRIAL. 

THIRD.  WHAT HAS BEEN SAID INDICATES THE ANSWER TO PETITIONER'S
ARGUMENT THAT THE PROBATION OFFICER OF THE SOUTHERN DISTRICT, BY
APPEARING BEFORE JUDGE INCH IN THE EASTERN DISTRICT UPON THE
APPLICATION FOR TERMINATION OF THE PROCEEDINGS, AND THE UNITED STATES
ATTORNEY, BY STIPULATING THAT JUDGE INCH MIGHT RETURN TO THE SOUTHERN
DISTRICT TO HEAR A MOTION FOR RESETTLEMENT OF HIS ORDER, HAVE WAIVED
VENUE OR ARE ESTOPPED TO QUESTION IT.  NEITHER OF THESE OFFICERS COULD
CONFER JURISDICTION UPON A DESIGNATED JUDGE TO PERFORM ACTS NOT
AUTHORIZED BY THE ASSIGNMENT ACT OUTSIDE THE DISTRICT OF DESIGNATION
AFTER HIS TERM OF SERVICE HAD ENDED.  THEY COULD NOT WAIVE THE
JURISDICTIONAL REQUIREMENTS OF THE PROBATION ACT OR BY THEIR CONDUCT
CONFER JURISDICTION ON A JUDGE OF ANOTHER DISTRICT TO ACT FOR THE TRIAL
COURT IN WHICH ALONE THE STATUTE VESTS THE POWER TO DEAL WITH THE
SUBJECT. 

THE JUDGMENT IS AFFIRMED. 

FN1  U.S. CODE, TITLE 28, SEC. 17. 

FN2  U.S. CODE, TITLE 18, SEC. 725. 

FN3  IN FACT THERE WERE TWO MOTIONS.  THE ONE WAS FOR SENTENCE ON THE
TWO INDICTMENTS.  THIS APPARENTLY WAS NOT PRESSED.  THE OTHER WAS FOR
AN ORDER COMMITTING THE PETITIONER "FOR THE PERIOD OF THE UNSERVED
PORTION OF HIS SENTENCE  ...  TO WIT, FOUR YEARS IN A PLACE TO BE
DESIGNATED BY THE ATTORNEY GENERAL OF THE UNITED STATES, AND FOR SUCH
OTHER, FURTHER, AND DIFFERENT RELIEF AS TO THE COURT MAY SEEM JUST AND
PROPER." 

FN4  89 F.(2D) 866. 

FN5  EX PARTE UNITED STATES, 242 U.S. 27. 

FN6  ESCOE V. ZERBST, 295 U.S. 490, 492. 

FN7  COMPARE BURNS V. UNITED STATES, 287 U.S. 216. 

FN8  U.S. CODE, TIT. 28, SEC. 22. 
..END :

















PALKO V. CONNECTICUT, 302 U.S. 319 


NO. 135.  ARGUED NOVEMBER 12, 1937.  - DECIDED DECEMBER 6, 1937.  - 122
CONN. 529 -  191 ATL. 320, AFFIRMED. 


1.  UNDER A STATE STATUTE ALLOWING APPEAL BY THE STATE IN CRIMINAL
CASES, WHEN PERMITTED BY THE TRIAL JUDGE, FOR CORRECTION OF ERRORS OF
LAW, A SENTENCE OF LIFE IMPRISONMENT, ON A CONVICTION OF MURDER IN THE
SECOND DEGREE, WAS REVERSED.  UPON RETRIAL, THE ACCUSED WAS CONVICTED
OF MURDER IN THE FIRST DEGREE AND SENTENCED TO DEATH.  HELD CONSISTENT
WITH DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT.  P. 322. 

2.  ASSUMING THAT THE PROHIBITION OF DOUBLE JEOPARDY IN THE FIFTH
AMENDMENT APPLIES TO JEOPARDY IN THE SAME CASE IF THE NEW TRIAL BE AT
THE INSTANCE OF THE GOVERNMENT AND NOT UPON DEFENDANT'S MOTION, IT DOES
NOT FOLLOW THAT A LIKE PROHIBITION IS APPLICABLE AGAINST STATE ACTION
BY FORCE OF THE FOURTEENTH AMENDMENT.  PP. 322 ET SEQ. 

3.  THE FOURTEENTH AMENDMENT DOES NOT GUARANTEE AGAINST STATE ACTION
ALL THAT WOULD BE A VIOLATION OF THE ORIGINAL BILL OF RIGHTS
(AMENDMENTS I TO VIII) IF DONE BY THE FEDERAL GOVERNMENT.  P. 323. 

4.  THE PROCESS OF ABSORPTION WHEREBY SOME OF THE PRIVILEGES AND
IMMUNITIES GUARANTEED BY THE FEDERAL BILL OF RIGHTS HAVE BEEN BROUGHT
WITHIN THE FOURTEENTH AMENDMENT, HAS HAD ITS SOURCE IN THE BELIEF THAT
NEITHER LIBERTY NOR JUSTICE WOULD EXIST IF THEY WERE SACRIFICED.  P.
326. 

5.  IT IS NOT NECESSARY TO THE DECISION IN THIS CASE TO CONSIDER 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.  P. 328. 

6.  THE CONVICTION OF THE DEFENDANT UPON THE RETRIAL ORDERED UPON THE
APPEAL BY THE STATE IN THIS CASE WAS NOT IN DEROGATION OF ANY
PRIVILEGES OR IMMUNITIES THAT BELONGED TO HIM AS A CITIZEN OF THE
UNITED STATES.  MAXWELL V. DOW, 176 U.S. 581.  P. 329. 

PALKO V. CONNECTICUT. 

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. 

APPEAL FROM A JUDGMENT SUSTAINING A SENTENCE OF DEATH UPON A VERDICT
OF GUILTY OF MURDER IN THE FIRST DEGREE.  THE DEFENDANT HAD PREVIOUSLY
BEEN CONVICTED UPON THE SAME INDICTMENT OF MURDER IN THE SECOND DEGREE,
WHEREUPON THE STATE APPEALED AND A NEW TRIAL WAS ORDERED. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

A STATUTE OF CONNECTICUT PERMITTING APPEALS IN CRIMINAL CASES TO BE
TAKEN BY THE STATE IS CHALLENGED BY APPELLANT AS AN INFRINGEMENT OF THE
FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES.  WHETHER
THE CHALLENGE SHOULD BE UPHELD IS NOW TO BE DETERMINED. 

APPELLANT WAS INDICTED IN FAIRFIELD COUNTY, CONNECTICUT, FOR THE
CRIME OF MURDER IN THE FIRST DEGREE.  A JURY FOUND HIM GUILTY OF MURDER
IN THE SECOND DEGREE, AND HE WAS SENTENCED TO CONFINEMENT IN THE STATE
PRISON FOR LIFE.  THEREAFTER THE STATE OF CONNECTICUT, WITH THE
PERMISSION OF THE JUDGE PRESIDING AT THE TRIAL, GAVE NOTICE OF APPEAL
TO THE SUPREME COURT OF ERRORS.  THIS IT DID PURSUANT TO AN ACT ADOPTED
IN 1886 WHICH IS PRINTED IN THE MARGIN.  FN1 PUBLIC ACTS, 1886, P. 560;
NOW SEC. 6494 OF THE GENERAL STATUTES.  UPON SUCH APPEAL, THE SUPREME
COURT OF ERRORS REVERSED THE JUDGMENT AND ORDERED A NEW TRIAL.  STATE
V. PALKO, 121 CONN. 669; 186 ATL. 657.  IT FOUND THAT THERE HAD BEEN
ERROR OF LAW TO THE PREJUDICE OF THE STATE (1) IN EXCLUDING TESTIMONY
AS TO A CONFESSION BY DEFENDANT; (2) IN EXCLUDING TESTIMONY UPON CROSS
EXAMINATION OF DEFENDANT TO IMPEACH HIS CREDIBILITY, AND (3) IN THE
INSTRUCTIONS TO THE JURY AS TO THE DIFFERENCE BETWEEN FIRST AND SECOND
DEGREE MURDER. 

PURSUANT TO THE MANDATE OF THE SUPREME COURT OF ERRORS, DEFENDANT WAS
BROUGHT TO TRIAL AGAIN.  BEFORE A JURY WAS IMPANELED AND ALSO AT LATER
STAGES OF THE CASE HE MADE THE OBJECTION THAT THE EFFECT OF THE NEW
TRIAL WAS TO PLACE HIM TWICE IN JEOPARDY FOR THE SAME OFFENSE, AND IN
SO DOING TO VIOLATE THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE
UNITED STATES.  UPON THE OVERRULING OF THE OBJECTION THE TRIAL
PROCEEDED.  THE JURY RETURNED A VERDICT OF MURDER IN THE FIRST DEGREE,
AND THE COURT SENTENCED THE DEFENDANT TO THE PUNISHMENT OF DEATH.  THE
SUPREME COURT OF ERRORS AFFIRMED THE JUDGMENT OF CONVICTION, 122 CONN.
529; 191 ATL. 320, ADHERING TO A DECISION ANNOUNCED IN 1894, STATE V.
LEE, 65 CONN. 265; 30 ATL. 1110, WHICH UPHELD THE CHALLENGED STATUTE. 
CF. STATE V. MUOLO, 118 CONN. 373; 172 ATL. 875.  THE CASE IS HERE UPON
APPEAL.  28 U.S.C., SEC. 344. 

1.  THE EXECUTION OF THE SENTENCE WILL NOT DEPRIVE APPELLANT OF HIS
LIFE WITHOUT THE PROCESS OF LAW ASSURED TO HIM BY THE FOURTEENTH
AMENDMENT OF THE FEDERAL CONSTITUTION. 

THE ARGUMENT FOR APPELLANT IS THAT WHATEVER IS FORBIDDEN BY THE FIFTH
AMENDMENT IS FORBIDDEN BY THE FOURTEENTH ALSO.  THE FIFTH AMENDMENT,
WHICH IS NOT DIRECTED TO THE STATES, BUT SOLELY TO THE FEDERAL
GOVERNMENT, CREATES IMMUNITY FROM DOUBLE JEOPARDY.  NO PERSON SHALL BE
"SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF LIFE OR
LIMB."  THE FOURTEENTH AMENDMENT ORDAINS, "NOR SHALL ANY STATE DEPRIVE
ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW." 
TO RETRY A DEFENDANT, THOUGH UNDER ONE INDICTMENT AND ONLY ONE,
SUBJECTS HIM, IT IS SAID, TO DOUBLE JEOPARDY IN VIOLATION OF THE FIFTH
AMENDMENT, IF THE PROSECUTION IS ONE ON BEHALF OF THE UNITED STATES. 
FROM THIS THE CONSEQUENCE IS SAID TO FOLLOW THAT THERE IS A DENIAL OF
LIFE OR LIBERTY WITHOUT DUE PROCESS OF LAW, IF THE PROSECUTION IS ONE
ON BEHALF OF THE PEOPLE OF A STATE.  THIRTY-FIVE YEARS AGO A LIKE
ARGUMENT WAS MADE TO THIS COURT IN DREYER V. ILLINOIS, 187 U.S. 71, 85,
AND WAS PASSED WITHOUT CONSIDERATION OF ITS MERITS AS UNNECESSARY TO A
DECISION.  THE QUESTION IS NOW HERE. 

WE DO NOT FIND IT PROFITABLE TO MARK THE PRECISE LIMITS OF THE
PROHIBITION OF DOUBLE JEOPARDY IN FEDERAL PROSECUTIONS.  THE SUBJECT
WAS MUCH CONSIDERED IN KEPNER V. UNITED STATES, 195 U.S. 100, DECIDED
IN 1904 BY A CLOSELY DIVIDED COURT.  THE VIEW WAS THERE EXPRESSED FOR A
MAJORITY OF THE COURT THAT THE PROHIBITION WAS NOT CONFINED TO JEOPARDY
IN A NEW AND INDEPENDENT CASE.  IT FORBADE JEOPARDY IN THE SAME CASE IF
THE NEW TRIAL WAS AT THE INSTANCE OF THE GOVERNMENT AND NOT UPON
DEFENDANT'S MOTION.  CF. TRONO V. UNITED STATES, 199 U.S. 521.  ALL
THIS MAY BE ASSUMED FOR THE PURPOSE OF THE CASE AT HAND, THOUGH THE
DISSENTING OPINIONS (195 U.S. 100, 134, 137) SHOW HOW MUCH WAS TO BE
SAID IN FAVOR OF A DIFFERENT RULING.  RIGHT-MINDED MEN, AS WE LEARN
FROM THOSE OPINIONS, COULD REASONABLY, EVEN IF MISTAKENLY, BELIEVE THAT
A SECOND TRIAL WAS LAWFUL IN PROSECUTIONS SUBJECT TO THE FIFTH
AMENDMENT, IF IT WAS ALL IN THE SAME CASE.  EVEN MORE PLAINLY, RIGHT
MINDED MEN COULD REASONABLY BELIEVE THAT IN ESPOUSING THAT CONCLUSION
THEY WERE NOT FAVORING A PRACTICE REPUGNANT TO THE CONSCIENCE OF
MANKIND.  IS DOUBLE JEOPARDY IN SUCH CIRCUMSTANCES, IF DOUBLE JEOPARDY
IT MUST BE CALLED, A DENIAL OF DUE PROCESS FORBIDDEN TO THE STATES? 
THE TYRANNY OF LABELS, SNYDER V. MASSACHUSETTS, 291 U.S. 97, 114, MUST
NOT LEAD US TO LEAP TO A CONCLUSION THAT A WORD WHICH IN ONE SET OF
FACTS MAY STAND FOR OPPRESSION OR ENORMITY IS OF LIKE EFFECT IN EVERY
OTHER. 

WE HAVE SAID THAT IN APPELLANT'S VIEW THE FOURTEENTH AMENDMENT IS TO
BE TAKEN AS EMBODYING THE PROHIBITIONS OF THE FIFTH.  HIS THESIS IS
EVEN BROADER.  WHATEVER WOULD BE A VIOLATION OF THE ORIGINAL BILL OF
RIGHTS (AMENDMENTS I TO VIII) IF DONE BY THE FEDERAL GOVERNMENT IS NOW
EQUALLY UNLAWFUL BY FORCE OF THE FOURTEENTH AMENDMENT IF DONE BY A
STATE.  THERE IS NO SUCH GENERAL RULE. 

THE FIFTH AMENDMENT PROVIDES, AMONG OTHER THINGS, THAT NO PERSON
SHALL BE HELD TO ANSWER FOR A CAPITAL OR OTHERWISE INFAMOUS CRIME
UNLESS ON PRESENTMENT OR INDICTMENT OF A GRAND JURY.  THIS COURT HAS
HELD THAT, IN PROSECUTIONS BY A STATE, PRESENTMENT OR INDICTMENT BY A
GRAND JURY MAY GIVE WAY TO INFORMATIONS AT THE INSTANCE OF A PUBLIC
OFFICER.  HURTADO V. CALIFORNIA, 110 U.S. 516; GAINES V. WASHINGTON,
277 U.S. 81, 86.  THE FIFTH AMENDMENT PROVIDES ALSO THAT NO PERSON
SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF.  THIS COURT HAS SAID THAT, IN PROSECUTIONS BY A STATE, THE
EXEMPTION WILL FAIL IF THE STATE ELECTS TO END IT.  TWINING V. NEW
JERSEY, 211 U.S. 78, 106, 111, 112.  CF. SNYDER V. MASSACHUSETTS,
SUPRA, P. 105; BROWN V. MISSISSIPPI, 297 U.S. 278, 285.  THE SIXTH
AMENDMENT CALLS FOR A JURY TRIAL IN CRIMINAL CASES AND THE SEVENTH FOR
A JURY TRIAL IN CIVIL CASES AT COMMON LAW WHERE THE VALUE IN
CONTROVERSY SHALL EXCEED TWENTY DOLLARS.  THIS COURT HAS RULED THAT
CONSISTENTLY WITH THOSE AMENDMENTS TRIAL BY JURY MAY BE MODIFIED BY A
STATE OR ABOLISHED ALTOGETHER.  WALKER V. SAUVINET, 92 U.S. 90; MAXWELL
V. DOW, 176 U.S. 581; NEW YORK CENTRAL R. CO. V. WHITE, 243 U.S. 188,
208; WAGNER ELECTRIC MFG. CO. V. LYNDON, 262 U.S. 226, 232.  AS TO THE
FOURTH AMENDMENT, ONE SHOULD REFER TO WEEKS V. UNITED STATES, 232 U.S.
383, 398, AND AS TO OTHER PROVISIONS OF THE SIXTH, TO WEST V.
LOUISIANA, 194 U.S. 258. 

ON THE OTHER HAND, THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
MAY MAKE IT UNLAWFUL FOR A STATE TO ABRIDGE BY ITS STATUTES THE FREEDOM
OF SPEECH WHICH THE FIRST AMENDMENT SAFEGUARDS AGAINST ENCROACHMENT BY
THE CONGRESS, DE JONGE V. OREGON, 299 U.S. 353, 364; HERNDON V. LOWRY,
301 U.S. 242, 259; OR THE LIKE FREEDOM OF THE PRESS, GROSJEAN V.
AMERICAN PRESS CO., 297 U.S. 233; NEAR V. MINNESOTA EX REL. OLSON, 283
U.S. 697, 707; OR THE FREE EXERCISE OF RELIGION, HAMILTON V. REGENTS,
293 U.S. 245, 262; CF. GROSJEAN V. AMERICAN PRESS CO., SUPRA; PIERCE V.
SOCIETY OF SISTERS, 268 U.S. 510; OR THE RIGHT OF PEACEABLE ASSEMBLY,
WITHOUT WHICH SPEECH WOULD BE UNDULY TRAMMELED, DE JONGE V. OREGON,
SUPRA; HERNDON V. LOWRY, SUPRA; OR THE RIGHT OF ONE ACCUSED OF CRIME TO
THE BENEFIT OF COUNSEL, POWELL V. ALABAMA, 287 U.S. 45.  IN THESE AND
OTHER SITUATIONS IMMUNITIES THAT ARE VALID AS AGAINST THE FEDERAL
GOVERNMENT BY FORCE OF THE SPECIFIC PLEDGES OF PARTICULAR AMENDMENTS
FN2  HAVE BEEN FOUND TO BE IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY,
AND THUS, THROUGH THE FOURTEENTH AMENDMENT, BECOME VALID AS AGAINST THE
STATES. 

THE LINE OF DIVISION MAY SEEM TO BE WAVERING AND BROKEN IF THERE IS A
HASTY CATALOGUE OF THE CASES ON THE ONE SIDE AND THE OTHER.  REFLECTION
AND ANALYSIS WILL INDUCE A DIFFERENT VIEW.  THERE EMERGES THE
PERCEPTION OF A RATIONALIZING PRINCIPLE WHICH GIVES TO DISCRETE
INSTANCES A PROPER ORDER AND COHERENCE.  THE RIGHT TO TRIAL BY JURY AND
THE IMMUNITY FROM PROSECUTION EXCEPT AS THE RESULT OF AN INDICTMENT MAY
HAVE VALUE AND IMPORTANCE.  EVEN SO, THEY ARE NOT OF THE VERY ESSENCE
OF A SCHEME OF ORDERED LIBERTY.  TO ABOLISH THEM IS NOT TO VIOLATE A
"PRINCIPLE OF JUSTICE SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR
PEOPLE AS TO BE RANKED AS FUNDAMENTAL."  SNYDER V. MASSACHUSETTS,
SUPRA, P. 105; BROWN V. MISSISSIPPI, SUPRA, P. 285; HEBERT V.
LOUISIANA, 272 U.S. 312, 316.  FEW WOULD BE SO NARROW OR PROVINCIAL AS
TO MAINTAIN THAT A FAIR AND ENLIGHTENED SYSTEM OF JUSTICE WOULD BE
IMPOSSIBLE WITHOUT THEM.  WHAT IS TRUE OF JURY TRIALS AND INDICTMENTS
IS TRUE ALSO, AS THE CASES SHOW, OF THE IMMUNITY FROM COMPULSORY SELF
INCRIMINATION.  TWINING V. NEW JERSEY, SUPRA.  THIS TOO MIGHT BE LOST,
AND JUSTICE STILL BE DONE.  INDEED, TODAY AS IN THE PAST THERE ARE
STUDENTS OF OUR PENAL SYSTEM WHO LOOK UPON THE IMMUNITY AS A MISCHIEF
RATHER THAN A BENEFIT, AND WHO WOULD LIMIT ITS SCOPE, OR DESTROY IT
ALTOGETHER.  FN3  NO DOUBT THERE WOULD REMAIN THE NEED TO GIVE
PROTECTION AGAINST TORTURE, PHYSICAL OR MENTAL.  BROWN V. MISSISSIPPI,
SUPRA.  JUSTICE, HOWEVER, WOULD NOT PERISH IF THE ACCUSED WERE SUBJECT
TO A DUTY TO RESPOND TO ORDERLY INQUIRY.  THE EXCLUSION OF THESE
IMMUNITIES AND PRIVILEGES FROM THE PRIVILEGES AND IMMUNITIES PROTECTED
AGAINST THE ACTION OF THE STATES HAS NOT BEEN ARBITRARY OR CASUAL.  IT
HAS BEEN DICTATED BY A STUDY AND APPRECIATION OF THE MEANING, THE
ESSENTIAL IMPLICATIONS, OF LIBERTY ITSELF. 

WE REACH A DIFFERENT PLANE OF SOCIAL AND MORAL VALUES WHEN WE PASS TO
THE PRIVILEGES AND IMMUNITIES THAT HAVE BEEN TAKEN OVER FROM THE
EARLIER ARTICLES OF THE FEDERAL BILL OF RIGHTS AND BROUGHT WITHIN THE
FOURTEENTH AMENDMENT BY A PROCESS OF ABSORPTION.  THESE IN THEIR ORIGIN
WERE EFFECTIVE AGAINST THE FEDERAL GOVERNMENT ALONE.  IF THE FOURTEENTH
AMENDMENT HAS ABSORBED THEM, THE PROCESS OF ABSORPTION HAS HAD ITS
SOURCE IN THE BELIEF THAT NEITHER LIBERTY NOR JUSTICE WOULD EXIST IF
THEY WERE SACRIFICED.  TWINING V. NEW JERSEY, SUPRA, P. 99.  FN4  THIS
IS TRUE, FOR ILLUSTRATION, OF FREEDOM OF THOUGHT, AND SPEECH.  OF THAT
FREEDOM ONE MAY SAY THAT IT IS THE MATRIX, THE INDISPENSABLE CONDITION,
OF NEARLY EVERY OTHER FORM OF FREEDOM.  WITH RARE ABERRATIONS A
PERVASIVE RECOGNITION OF THAT TRUTH CAN BE TRACED IN OUR HISTORY,
POLITICAL AND LEGAL.  SO IT HAS COME ABOUT THAT THE DOMAIN OF LIBERTY,
WITHDRAWN BY THE FOURTEENTH AMENDMENT FROM ENCROACHMENT BY THE STATES,
HAS BEEN ENLARGED BY LATTER-DAY JUDGMENTS TO INCLUDE LIBERTY OF THE
MIND AS WELL AS LIBERTY OF ACTION.  FN5  THE EXTENSION BECAME, INDEED,
A LOGICAL IMPERATIVE WHEN ONCE IT WAS RECOGNIZED, AS LONG AGO IT WAS,
THAT LIBERTY IS SOMETHING MORE THAN EXEMPTION FROM PHYSICAL RESTRAINT,
AND THAT EVEN IN THE FIELD OF SUBSTANTIVE RIGHTS AND DUTIES THE
LEGISLATIVE JUDGMENT, IF OPPRESSIVE AND ARBITRARY, MAY BE OVERRIDDEN BY
THE COURTS.  CF. NEAR V. MINNESOTA EX REL. OLSON, SUPRA; DE JONGE V.
OREGON, SUPRA.  FUNDAMENTAL TOO IN THE CONCEPT OF DUE PROCESS, AND SO
IN THAT OF LIBERTY, IS THE THOUGHT THAT CONDEMNATION SHALL BE RENDERED
ONLY AFTER TRIAL.  SCOTT V. MCNEAL, 154 U.S. 34; BLACKMER V. UNITED
STATES, 284 U.S. 421.  THE HEARING, MOREOVER, MUST BE A REAL ONE, NOT A
SHAM OR A PRETENSE.  MOORE V. DEMPSEY, 261 U.S. 86; MOONEY V. HOLOHAN,
294 U.S. 103.  FOR THAT REASON, IGNORANT DEFENDANTS IN A CAPITAL CASE
WERE HELD TO HAVE BEEN CONDEMNED UNLAWFULLY WHEN IN TRUTH, THOUGH NOT
IN FORM, THEY WERE REFUSED THE AID OF COUNSEL.  POWELL V. ALABAMA,
SUPRA, PP. 67, 68.  THE DECISION DID NOT TURN UPON THE FACT THAT THE
BENEFIT OF COUNSEL WOULD HAVE BEEN GUARANTEED TO THE DEFENDANTS BY THE
PROVISIONS OF THE SIXTH AMENDMENT IF THEY HAD BEEN PROSECUTED IN A
FEDERAL COURT.  THE DECISION TURNED UPON THE FACT THAT IN THE
PARTICULAR SITUATION LAID BEFORE US IN THE EVIDENCE THE BENEFIT OF
COUNSEL WAS ESSENTIAL TO THE SUBSTANCE OF A HEARING. 

OUR SURVEY OF THE CASES SERVES, WE THINK, TO JUSTIFY THE STATEMENT
THAT THE DIVIDING LINE BETWEEN THEM, IF NOT UNFALTERING THROUGHOUT ITS
COURSE, HAS BEEN TRUE FOR THE MOST PART TO A UNIFYING PRINCIPLE.  ON
WHICH SIDE OF THE LINE THE CASE MADE OUT BY THE APPELLANT HAS
APPROPRIATE LOCATION MUST BE THE NEXT INQUIRY AND THE FINAL ONE.  IS
THAT KIND OF DOUBLE JEOPARDY TO WHICH THE STATUTE 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"?  HEBERT
V. LOUISIANA, SUPRA.  THE ANSWER SURELY MUST BE "NO."  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.  STATE V.
FELCH, 92 VT. 477; 105 ATL. 23; STATE V. LEE, SUPRA.  THIS IS NOT
CRUELTY AT ALL, NOR EVEN VEXATION IN ANY IMMODERATE DEGREE.  IF THE
TRIAL HAD BEEN INFECTED WITH ERROR ADVERSE TO THE ACCUSED, THERE MIGHT
HAVE BEEN REVIEW AT HIS INSTANCE, AND AS OFTEN AS NECESSARY TO PURGE
THE VICIOUS TAINT.  A RECIPROCAL PRIVILEGE, SUBJECT AT ALL TIMES TO THE
DISCRETION OF THE PRESIDING JUDGE, STATE V. CARABETTA, 106 CONN. 114;
127 ATL. 394, HAS NOW BEEN GRANTED TO THE STATE.  THERE IS HERE NO
SEISMIC INNOVATION.  THE EDIFICE OF JUSTICE STANDS, ITS SYMMETRY, TO
MANY, GREATER THAN BEFORE. 

2.  THE CONVICTION OF APPELLANT IS NOT IN DEROGATION OF ANY
PRIVILEGES OR IMMUNITIES THAT BELONG TO HIM AS A CITIZEN OF THE UNITED
STATES. 

THERE IS ARGUMENT IN HIS BEHALF THAT THE PRIVILEGES AND IMMUNITIES
CLAUSE OF THE FOURTEENTH AMENDMENT AS WELL AS THE DUE PROCESS CLAUSE
HAS BEEN FLOUTED BY THE JUDGMENT. 

MAXWELL V. DOW, SUPRA, P. 584, GIVES ALL THE ANSWER THAT IS
NECESSARY. 

THE JUDGMENT IS AFFIRMED. 

FN1  "SEC.  6494.  APPEALS BY THE STATE IN CRIMINAL CASES.  APPEALS
FROM THE RULINGS AND DECISIONS OF THE SUPERIOR COURT OR OF ANY CRIMINAL
COURT OF COMMON PLEAS, UPON ALL QUESTIONS OF LAW ARISING ON THE TRIAL
OF CRIMINAL CASES, MAY BE TAKEN BY THE STATE, WITH THE PERMISSION OF
THE PRESIDING JUDGE, TO THE SUPREME COURT OF ERRORS, IN THE SAME MANNER
AND TO THE SAME EFFECT AS IF MADE BY THE ACCUSED." 

A STATUTE OF VERMONT (G.L. 2598) WAS GIVEN THE SAME EFFECT AND UPHELD
AS CONSTITUTIONAL IN STATE V. FELCH, 92 VT. 477; 105 ATL. 23. 

OTHER STATUTES, CONFERRING A RIGHT OF APPEAL MORE OR LESS LIMITED IN
SCOPE, ARE COLLECTED IN THE AMERICAN LAW INSTITUTE CODE OF CRIMINAL
PROCEDURE, JUNE 15, 1930, P. 1203. 

FN2  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." 

SIXTH AMENDMENT:  "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL
ENJOY THE RIGHT  ...  TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS
DEFENCE." 

FN3  SEE, E.G. BENTHAM, RATIONALE OF JUDICIAL EVIDENCE, BOOK IX, PT.
4, C. III; GLUECK, CRIME AND JUSTICE, P. 94; CF. WIGMORE, EVIDENCE,
VOL. 4, SEC. 2251. 

COMPULSORY SELF-INCRIMINATION IS PART OF THE ESTABLISHED PROCEDURE IN
THE LAW OF CONTINENTAL EUROPE.  WIGMORE, SUPRA, P. 824; GARNER,
CRIMINAL PROCEDURE IN FRANCE, 25 YALE L.J. 255, 260; SHERMAN, ROMAN LAW
IN THE MODERN WORLD, VOL. 2, PP. 493, 494; STUMBERG, GUIDE TO THE LAW
AND LEGAL LITERATURE OF FRANCE, P. 184.  DOUBLE JEOPARDY TOO IS NOT
EVERYWHERE FORBIDDEN.  RADIN, ANGLO AMERICAN LEGAL HISTORY, P. 228. 

FN4  "...  IT IS POSSIBLE THAT SOME OF THE PERSONAL RIGHTS
SAFEGUARDED BY THE FIRST EIGHT AMENDMENTS AGAINST NATIONAL ACTION MAY
ALSO BE SAFEGUARDED AGAINST STATE ACTION, BECAUSE A DENIAL OF THEM
WOULD BE A DENIAL OF DUE PROCESS OF LAW.  CHICAGO, BURLINGTON & QUINCY
RAILROAD V. CHICAGO, 166 U.S. 226.  IF THIS IS SO, IT IS NOT BECAUSE
THOSE RIGHTS ARE ENUMERATED IN THE FIRST EIGHT AMENDMENTS, BUT BECAUSE
THEY ARE OF SUCH A NATURE THAT THEY ARE INCLUDED IN THE CONCEPTION OF
DUE PROCESS OF LAW." 

FN5  THE CASES ARE BROUGHT TOGETHER IN WARREN, THE NEW LIBERTY UNDER
THE 14TH AMENDMENT, 39 HARV. L. REV. 431. 

MR. JUSTICE BUTLER DISSENTS. 
..END :









TITLE CO. V. WILCOX BLDG. CORP., 302 U.S. 120 


NOS. 23 AND 24.  ARGUED OCTOBER 21, 1937.  - DECIDED NOVEMBER 15, 1937. 
- 86 F.(2D) 667, REVERSED. 


1.  A CORPORATION, DISSOLVED AND PUT OUT OF EXISTENCE BY THE STATE
WHICH CREATED IT, MAY NOT INVOKE THE POWERS OF A COURT OF BANKRUPTCY
UNDER SEC. 77B OF THE BANKRUPTCY ACT.  P. 124. 

THE RECORD DOES NOT PRESENT A CASE WHERE CREDITORS ARE THE MOVING
PARTIES, OR WHERE THERE HAS BEEN ANY ACT OF BANKRUPTCY COMMITTED BY THE
CORPORATION, OR WHERE ANY PERTINENT LAW OF THE STATE IS IN CONFLICT
WITH THE FEDERAL BANKRUPTCY LAWS. 

2.  A PRIVATE CORPORATION CAN EXIST ONLY UNDER THE EXPRESS LAW OF THE
STATE OR SOVEREIGNTY BY WHICH IT WAS CREATED.  ITS DISSOLUTION PUTS AN
END TO ITS EXISTENCE; AND THERE MUST BE SOME STATUTORY AUTHORITY FOR
THE PROLONGATION OF ITS LIFE, EVEN FOR LITIGATION PURPOSES.  P. 125. 

3.  UNDER THE ILLINOIS LAW A CORPORATION IS WITHOUT CORPORATE
CAPACITY TO INITIATE ANY LEGAL PROCEEDINGS AFTER TWO YEARS FROM THE
DATE OF ITS DISSOLUTION, AND THIS INCLUDES A PROCEEDING FOR
REORGANIZATION UNDER BANKRUPTCY ACT SEC. 77B.  P. 126. 

4.  STATE LAWS IN CONFLICT WITH THE LAWS OF CONGRESS ON THE SUBJECT
OF BANKRUPTCIES ARE SUSPENDED ONLY TO THE EXTENT OF ACTUAL CONFLICT. 
P. 126. 

5.  HOW LONG AND UPON WHAT TERMS A STATE-CREATED CORPORATION MAY
CONTINUE TO EXIST IS A MATTER EXCLUSIVELY OF STATE POWER.  P. 127. 

6.  SECTION 77B OF THE BANKRUPTCY ACT DOES NOT ENABLE STOCKHOLDERS TO
RESUSCITATE, IN ANY OTHER GUISE, A CORPORATION THE POWERS AND EXISTENCE
OF WHICH, SAVE FOR THE WINDING UP OF PENDING LITIGATION, HAVE BEEN
EXTINGUISHED BY THE STATE THAT CREATED IT.  P. 129. 

CHICAGO TITLE AND TRUST CO. V. FORTY-ONE THIRTY-SIX WILCOX BLDG.
CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 301 U.S. 676, TO REVIEW THE AFFIRMANCE BY THE COURT BELOW
OF AN ORDER OF THE DISTRICT COURT ENTERED IN A REORGANIZATION
PROCEEDING UNDER SEC. 77B OF THE BANKRUPTCY ACT.  THE ORDER CONFIRMED
THE REPORT OF A SPECIAL MASTER AND COMMANDED A RECEIVER IN POSSESSION
OF PROPERTY IN FORECLOSURE PROCEEDINGS IN A STATE COURT TO TURN OVER TO
A TEMPORARY TRUSTEE, AND RESTRAINED FURTHER PROSECUTION OF THE
FORECLOSURES. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

RESPONDENT WAS ORGANIZED AS A CORPORATION UNDER THE LAWS OF ILLINOIS;
AND PURSUANT TO THOSE LAWS IT WAS DISSOLVED.  THE ONLY PROPERTY IT EVER
OWNED OR POSSESSED WAS A BUILDING, AND THE LAND UPON WHICH IT STOOD,
SITUATED AT NO. 4136 WILCOX AVENUE IN THE CITY OF CHICAGO.  THIS
PROPERTY, WHEN ACQUIRED, WAS SUBJECT TO THE LIEN OF A FIRST MORTGAGE,
SECURING BONDS AGGREGATING $95,000, AND, SUBSEQUENT TO THE ACQUISITION
OF THE PROPERTY, TO A JUNIOR MORTGAGE TO SECURE THE PAYMENT OF
$15,000.  THE CORPORATION WAS ORGANIZED ON APRIL 10, 1929.  ON MAY 22,
1931, THE SUPERIOR COURT OF COOK COUNTY, ILLINOIS, IN A PROCEEDING
REGULARLY BEFORE IT, AND IN ACCORDANCE WITH A STATUTE OF ILLINOIS,
ENTERED A DECREE DISSOLVING THE CORPORATION AND DECLARING ITS CHARTER
AND AUTHORITY AS SUCH TO BE NULL AND VOID.  THE DECREE HAS NEVER BEEN
APPEALED FROM OR OTHERWISE CHALLENGED OR ASSAILED.  THAT IT BECAME AND
IS NOW EFFECTIVE CANNOT BE DOUBTED. 

ON JULY 10TH, CERTAIN MECHANICS' LIENS WERE FORECLOSED, AND A SALE OF
THE PROPERTY WAS THEREAFTER MADE PURSUANT TO THE FORECLOSURE DECREE. 
CERTIFICATE OF SALE WAS ISSUED, ENTITLING THE HOLDER THEREOF TO A
CONVEYANCE OF THE PROPERTY UPON THE EXPIRATION OF THE PERIOD OF
REDEMPTION.  THE RIGHT OF REDEMPTION EXPIRED AS TO RESPONDENT ON AUGUST
5, 1932, AND AS TO CREDITORS ON NOVEMBER 5, 1932.  NO REDEMPTION HAS
EVER BEEN MADE OR ATTEMPTED.  ON OCTOBER 24, 1931, SUIT WAS BROUGHT IN
A STATE COURT TO FORECLOSE THE LIEN OF THE FIRST MORTGAGE; AND ON
NOVEMBER 10, 1931, SUIT WAS BROUGHT IN THE SAME COURT TO FORECLOSE THE
LIEN OF THE JUNIOR MORTGAGE.  A RECEIVER WAS APPOINTED, WHO TOOK
POSSESSION OF THE PROPERTY, AND WAS IN POSSESSION THEREOF AT THE TIME
THIS CASE WAS HEARD IN THE FEDERAL DISTRICT COURT.  RESPONDENT APPEARED
IN BOTH FORECLOSURE SUITS, BUT APPARENTLY OFFERED NO DEFENSE. 

BY THE STATUTES OF ILLINOIS (SMITH-HURD REV. STAT., 1929, C. 32) IT
IS PROVIDED: 

"SEC. 14.  ALL CORPORATIONS ORGANIZED UNDER THE LAWS OF THIS STATE,
WHOSE POWERS MAY HAVE EXPIRED BY LIMITATION OR OTHERWISE, SHALL
CONTINUE THEIR CORPORATE CAPACITY FOR TWO YEARS FOR THE PURPOSE ONLY OF
COLLECTING DEBTS DUE SUCH CORPORATION AND SELLING AND CONVEYING THE
PROPERTY AND EFFECTS THEREOF.  SUCH CORPORATIONS SHALL USE THEIR
RESPECTIVE NAMES FOR SUCH PURPOSES AND SHALL BE CAPABLE OF PROSECUTING
AND DEFENDING ALL SUITS AT LAW OR IN EQUITY. 

     . .         .         .         . 

"SEC. 79.  THE DISSOLUTION, FOR ANY CAUSE WHATEVER, OF ANY
CORPORATION, SHALL NOT TAKE AWAY OR IMPAIR ANY REMEDY GIVEN AGAINST
SUCH CORPORATION, ITS OFFICERS, OR STOCKHOLDERS, FOR ANY LIABILITIES
INCURRED PREVIOUS TO ITS DISSOLUTION, IF SUIT THEREFOR IS BROUGHT AND
SERVICE OF PROCESS HAD WITHIN TWO YEARS AFTER SUCH DISSOLUTION." 

THE TWO-YEAR PERIOD, WITHIN WHICH THE CORPORATION COULD SUE, ACQUIRE
PROPERTY, OR PERFORM ANY CORPORATE FUNCTION APART FROM SUITS THEN
PENDING, EXPIRED MAY 22, 1933. 

THUS MATTERS REMAINED UNTIL MAY, 1935, WHEN THREE PERSONS, NAMELY,
MRS. FAY FISCHEL, HER FATHER HYMAN SCHULMAN, AND HER BROTHER SAM
SCHULMAN, ACQUIRED ALL THE SHARES OF THE RESPONDENT FROM THE THEN
STOCKHOLDERS.  MEETINGS PURPORTING TO BE STOCKHOLDERS' AND DIRECTORS'
MEETINGS WERE THEN HELD, OFFICERS AND DIRECTORS ELECTED, AND A
RESOLUTION WAS PASSED AUTHORIZING THE FILING OF A PETITION FOR THE
REORGANIZATION OF RESPONDENT UNDER SEC. 77B OF THE BANKRUPTCY ACT, 48
STAT. 912; 11 U.S.C. SEC. 207. 

ON JUNE 13, 1935, RESPONDENT FILED A PETITION FOR REORGANIZATION
UNDER SEC. 77B; AND ON JUNE 21ST, FILED A PETITION PRAYING FOR AN ORDER
DIRECTING THE RECEIVER IN THE STATE FORECLOSURE SUITS TO TURN OVER
PROPERTY IN HIS POSSESSION AND RESTRAINING THE FURTHER PROSECUTION OF
SUCH SUITS.  PETITIONER ANSWERED, DENYING THAT RESPONDENT WAS A
CORPORATION, SETTING UP THE CORPORATE DISSOLUTION, THE FORECLOSURE
PROCEEDINGS AND THE SALE OF THE CORPORATE PROPERTY.  IT ALSO AVERRED
THAT THE BANKRUPTCY PETITION WAS NOT FILED IN GOOD FAITH. 

THE SPECIAL MASTER, TO WHOM THE CASE WAS REFERRED, FOUND AND REPORTED
THAT THE BANKRUPTCY PETITION HAD BEEN FILED IN GOOD FAITH; THAT
RESPONDENT HAD LEGAL CAPACITY TO FILE THE PETITION, AND THAT THE
PETITION WAS SUFFICIENT TO CONFER JURISDICTION UPON THE COURT OVER
RESPONDENT AND THE PROPERTY IN QUESTION.  THE MASTER FURTHER FOUND THAT
NO DEED EVER ISSUED UNDER THE MECHANICS' LIEN FORECLOSURE CERTIFICATE;
AND THAT SUCH CERTIFICATE WAS PURCHASED AND NOW IS THE PROPERTY OF THE
DEBTOR.  HOWEVER, IT APPEARS FROM THE RECORD THAT THE CERTIFICATE WAS
PURCHASED IN CONNECTION WITH THE ACQUISITION OF THE STOCK BY THE THREE
PERSONS ALREADY MENTIONED, MORE THAN TWO YEARS AFTER THE PERIOD OF
REDEMPTION HAD EXPIRED. 

THE FEDERAL DISTRICT COURT CONFIRMED THE REPORT OF THE MASTER,
APPOINTED A TEMPORARY TRUSTEE, REQUIRED THE STATE COURT RECEIVER TO
TURN OVER THE PROPERTY TO THE TRUSTEE, AND RESTRAIN FURTHER PROSECUTION
OF THE FORECLOSURE PROCEEDINGS.  ON APPEAL, THE COURT BELOW AFFIRMED
THE ORDER OF THE DISTRICT COURT, JUDGE BRIGGLE DISSENTING.  86 F.(2D)
667. 

IN THE DECISIONS OF OTHER CIRCUIT COURTS OF APPEAL, CITED BY
RESPONDENT, SUPPORT MAY BE FOUND FOR INVOLUNTARY PROCEEDINGS IN
BANKRUPTCY AGAINST A DISSOLVED CORPORATION, BROUGHT BY CREDITORS AND
BASED UPON AN ACT OF BANKRUPTCY COMMITTED WITHIN FOUR MONTHS.  THE
QUESTION PRESENTED HERE DIFFERS SUBSTANTIALLY FROM THE QUESTIONS
PRESENTED IN THOSE CASES; AND WE PUT THEM ASIDE AS INAPPLICABLE,
WITHOUT EITHER APPROVAL OR DISAPPROVAL.  THE SOLE QUESTION NOW FOR
DETERMINATION IS WHETHER UNDER THE FACTS JUST DETAILED, A CORPORATION,
DISSOLVED AND PUT OUT OF EXISTENCE BY THE STATE WHICH CREATED IT, MAY,
NEVERTHELESS, ITSELF INVOKE THE POWERS OF A COURT OF BANKRUPTCY UNDER
SEC. 77B.  THE RECORD DOES NOT PRESENT A CASE WHERE CREDITORS ARE THE
MOVING PARTIES, OR WHERE THERE HAS BEEN ANY ACT OF BANKRUPTCY COMMITTED
BY THE CORPORATION, OR WHERE ANY PERTINENT LAW OF THE STATE IS IN
CONFLICT WITH THE FEDERAL BANKRUPTCY LAWS. 

THE DECISIONS OF THIS COURT ARE ALL TO THE EFFECT THAT A PRIVATE
CORPORATION IN THIS COUNTRY CAN EXIST ONLY UNDER THE EXPRESS LAW OF THE
STATE OR SOVEREIGNTY BY WHICH IT WAS CREATED.  ITS DISSOLUTION PUTS AN
END TO ITS EXISTENCE, THE RESULT OF WHICH MAY BE LIKENED TO THE DEATH
OF A NATURAL PERSON.  THERE MUST BE SOME STATUTORY AUTHORITY FOR THE
PROLONGATION OF ITS LIFE, EVEN FOR LITIGATION PURPOSES.  OKLAHOMA GAS
CO. V. OKLAHOMA, 273 U.S. 257; NATIONAL BANK V. COLBY, 21 WALL.  609,
615; OREGON RY. & NAV. CO. V. OREGONIAN RY. CO., 130 U.S. 1, 20.  SEE,
ALSO, GREELEY V. SMITH, 3 STORY 657, 10 FED. CAS. P. 1075; BOARD OF
COUNCILMEN V. DEPOSIT BANK, 120 FED. 165, 166 ET SEQ.; DUNDEE MTG.  &
TR. INV. CO. V. HUGHES, 77 FED. 855. 

FACE; BUT IF ANY DOUBT AS TO THEIR MEANING AND EFFECT WOULD OTHERWISE
EXIST, THAT DOUBT HAS BEEN SET AT REST BY THE DECISIONS OF THE ILLINOIS
APPELLATE COURTS.  IN LIFE ASS'N OF AMERICA V. FASSETT, 102 ILL. 315,
DECIDED BEFORE THE SECTIONS UNDER CONSIDERATION WERE ENACTED, THE STATE
SUPREME COURT HELD THAT IT WAS THE SETTLED POLICY OF THE STATE THAT
UPON THE DISSOLUTION OF DOMESTIC CORPORATIONS, HOWEVER EFFECTED, THEY
WERE TO BE REGARDED AS STILL EXISTING FOR THE PURPOSE OF SETTLING UP
THEIR AFFAIRS AND HAVING THEIR PROPERTY APPLIED FOR THE PAYMENT OF
THEIR JUST DEBTS.  SEE SINGER & TALCOTT CO. V. HUTCHINSON, 176 ILL. 48,
51; 51 N.E. 622.  IN AMERICAN EXCHANGE BANK V. MITCHELL, 179 ILL. APP.
612, 615-616, THE GENERAL RULE WAS ANNOUNCED THAT AFTER A CORPORATION
IS DISSOLVED, IT IS INCAPABLE OF MAINTAINING AN ACTION; AND THAT ALL
SUCH ACTIONS PENDING AT THE TIME OF DISSOLUTION ABATE, IN THE ABSENCE
OF A STATUTE TO THE CONTRARY.  THE STATE DECISIONS FOLLOWING THE
ENACTMENT OF THESE SECTIONS MAKE IT CLEAR THAT THIS GENERAL RULE STILL
REMAINS IN FORCE IN ILLINOIS EXCEPT FOR THE SPECIFIC MODIFICATIONS IN
RESPECT OF TIME AND CIRCUMSTANCE SET FORTH IN SECS. 14 AND 79.  SEE
DUKES V. HARRISON & REIDY, 270 ILL. APP. 372; CONSOLIDATED COAL CO. V.
FLYNN COAL CO., 274 ILL. APP. 405.  SEE, ALSO, A.J. BATES CO. V. UNITED
STATES, 3 F.SUPP.  245, 248; CHARLES A. ZAHN CO. V. UNITED STATES, 6
F.SUPP.  317, WHERE THE COURT OF CLAIMS HELD THAT UNDER THESE SECTIONS
OF THE ILLINOIS STATUTE AN ILLINOIS CORPORATION CEASED TO EXIST AND
BECAME INCAPABLE OF TRANSACTING ANY BUSINESS WHATEVER IN ITS CORPORATE
CAPACITY; AND THAT A SUIT PURPORTING TO BE BROUGHT BY A DISSOLVED
CORPORATION AFTER TWO YEARS TO RECOVER INTERNAL-REVENUE TAXES PAID BY
THE CORPORATION COULD NOT BE MAINTAINED. 

IT IS PLAIN ENOUGH, UNDER THE ILLINOIS STATUTE, THAT AFTER THE
EXPIRATION OF TWO YEARS FROM THE DATE OF ITS DISSOLUTION, RESPONDENT
WAS WITHOUT CORPORATE CAPACITY TO INITIATE ANY LEGAL PROCEEDING -
INCLUDING A PROCEEDING UNDER SEC. 77B, UNLESS WE ARE ABLE TO SAY THAT
THE STATUTE, IN ITS TERMS OR IN ITS APPLICATION, IS IN CONFLICT WITH
SEC. 77B.  WHILE STATE LAWS IN CONFLICT WITH THE LAWS OF CONGRESS ON
THE SUBJECT OF BANKRUPTCIES ARE SUSPENDED, THEY ARE SUSPENDED "ONLY TO
THE EXTENT OF ACTUAL CONFLICT WITH THE SYSTEM PROVIDED BY THE
BANKRUPTCY ACT OF CONGRESS."  STELLWAGEN V. CLUM, 245 U.S. 605, 613. 
THE DISSOLUTION EFFECTED UNDER ILLINOIS LAW IS IN NO WAY RELATED TO A
STATE OF INSOLVENCY OR BANKRUPTCY.  INSOLVENCY OR BANKRUPTCY AS A
GROUND FOR DISSOLUTION IS NOT WITHIN THE TERMS OR CONTEMPLATION OF THE
LAW.  LIQUIDATION OF A CORPORATION IS NO PART OF THE PURPOSE OF THE
DISSOLUTION; NOR IS INSOLVENCY OR LIQUIDATION INVOLVED IN THE
PROCEEDINGS TO ENFORCE THE MECHANICS' LIENS OR FORECLOSE THE
MORTGAGES.  QUITE EVIDENTLY, THE LATTER WERE SIMPLY ORDINARY
PROCEEDINGS TO ENFORCE LIENS AGAINST THE PROPERTY SUBJECT THERETO. 
STRATON V. NEW, 283 U.S. 318, 327-330.  THE STATE RECEIVERSHIP WAS
PURELY INCIDENTAL TO THE FORECLOSURE SUITS, AND THEREFORE LIMITED AND
SPECIAL.  IT WAS NOT AN EQUITY RECEIVERSHIP WITHIN THE MEANING OF SEC.
77B OF THE BANKRUPTCY ACT.  DUPARQUET CO. V. EVANS, 297 U.S. 216, 219
221. 

THE PRINCIPLE RECENTLY ANNOUNCED IN HOPKINS SAVINGS ASSN. V. CLEARY,
296 U.S. 315, 337, IS APPLICABLE HERE.  THAT CASE DEALT WITH AN
INTRUSION BY THE FEDERAL GOVERNMENT ON THE POWERS OF THE STATE OVER
STATE BUILDING-AND-LOAN ASSOCIATIONS.  SPEAKING OF THESE ASSOCIATIONS,
THIS COURT SAID: "HOW THEY SHALL BE FORMED, HOW MAINTAINED AND
SUPERVISED, AND HOW AND WHEN DISSOLVED, ARE MATTERS OF GOVERNMENTAL
POLICY, WHICH IT WOULD BE AN INTRUSION FOR ANOTHER GOVERNMENT TO
REGULATE BY STATUTE OR DECISION, EXCEPT WHEN REASONABLY NECESSARY FOR
THE FAIR AND EFFECTIVE EXERCISE OF SOME OTHER AND COGNATE POWER
EXPLICITLY CONFERRED."  IT IS NOT REASONABLY POSSIBLE TO FIND ANY
CONFLICT BETWEEN SEC. 77B AND THE ILLINOIS STATUTE OR THE DISSOLUTION
PROCEEDINGS OR THE LIEN-FORECLOSURE SUITS. 

THE COURT BELOW RELIED UPON ITS FORMER DECISION IN THE CASE OF IN RE
211 EAST DELAWARE PLACE BLDG. CORP., 76 F.(2D) 834.  THAT WAS A CASE,
HOWEVER, WHERE THE BANKRUPTCY PETITION HAD BEEN FILED BY CREDITORS, NOT
BY THE DISSOLVED CORPORATION; AND, THEREFORE, THE CAPACITY OF THE
DEFUNCT CORPORATION TO INSTITUTE PROCEEDINGS WAS NOT INVOLVED.  WE
EXPRESS NO OPINION AS TO THE CORRECTNESS OF THIS DECISION; BUT JUDGE
EVANS, WHO WROTE THE OPINION, APPARENTLY REGARDED THE DISTINCTION AS
IMPORTANT.  FOR IN A LATER PROCEEDING IN THE CASE, 14 F.SUPP.  96, 100,
HE SAID THAT THE FORFEITURE OF THE CHARTER OF THE CORPORATION DID NOT
PREVENT SUCH A PROCEEDING BY CREDITORS, AND THEN ADDED, "THE ONLY
EFFECT WHICH THIS LOSS OF CORPORATE EXISTENCE MAY HAVE UPON A
BANKRUPTCY PROCEEDING IS IN RESPECT TO THE INABILITY OF THE CORPORATION
TO ADMIT ACTS OF BANKRUPTCY OR STATE OF INSOLVENCY OR TO FILE A
VOLUNTARY PETITION." 

HOW LONG AND UPON WHAT TERMS A STATE-CREATED CORPORATION MAY CONTINUE
TO EXIST IS A MATTER EXCLUSIVELY OF STATE POWER.  HORN SILVER MINING
CO. V. NEW YORK, 143 U.S. 305, 312-313; ASHLEY V. RYAN, 153 U.S. 436,
441, 443; NEW JERSEY V. ANDERSON, 203 U.S. 483, 493.  THE CIRCUMSTANCES
UNDER WHICH THE POWER SHALL BE EXERCISED AND THE EXTENT TO WHICH IT
SHALL BE CARRIED ARE MATTERS OF STATE POLICY, TO BE DECIDED BY THE
STATE LEGISLATURE.  THERE IS NOTHING IN THE FEDERAL CONSTITUTION WHICH
OPERATES TO RESTRAIN A STATE FROM TERMINATING ABSOLUTELY AND
UNCONDITIONALLY THE EXISTENCE OF A STATE-CREATED CORPORATION, IF THAT
BE AUTHORIZED BY THE STATUTE UNDER WHICH THE CORPORATION HAS BEEN
ORGANIZED.  AND IT HARDLY WILL BE CLAIMED THAT THE FEDERAL GOVERNMENT
MAY BREATHE LIFE INTO A CORPORATE ENTITY THUS PUT TO DEATH BY THE STATE
IN THE LAWFUL EXERCISE OF ITS SOVEREIGN AUTHORITY.    THE POWER TO TAKE
THE LONG STEP OF PUTTING AN END TO THE CORPORATE EXISTENCE OF A STATE
CREATED CORPORATION WITHOUT LIMITATION, CONNOTES THE POWER TO TAKE THE
SHORTER ONE OF PUTTING AN END TO IT WITH SUCH LIMITATIONS AS THE
LEGISLATURE SEES FIT TO ANNEX.  COMPARE PACKARD V. BANTON, 264 U.S.
140, 145; DAVIS V. MASSACHUSETTS, 167 U.S. 43, 47; RIPPEY V. TEXAS, 193
U.S. 504, 509-510.  AND SINCE THE FEDERAL GOVERNMENT IS POWERLESS TO
RESURRECT A CORPORATION WHICH THE STATE HAS PUT OUT OF EXISTENCE FOR
ALL PURPOSES, THE CONCLUSION SEEMS INEVITABLE THAT IF THE STATE ATTACH
QUALIFICATIONS TO ITS SENTENCE OF EXTINCTION, NOTHING CAN BE ADDED TO
OR TAKEN FROM THESE QUALIFICATIONS BY FEDERAL AUTHORITY. 

IT IS SUGGESTED THAT THE STATE CANNOT KEEP THE CORPORATION ALIVE FOR
ITS OWN PURPOSES AND DENY IT LIFE FOR FEDERAL PURPOSES.  THE
PROPOSITION NEED NOT BE CHALLENGED, SINCE IT IS PERFECTLY EVIDENT THAT
HERE THE STATE HAS RESERVED NOTHING FOR ITSELF WHICH IT HAS DENIED TO
THE FEDERAL AUTHORITY.  THE ONLY RELEVANT PROVISIONS ARE THOSE RELATING
TO LEGAL PROCEEDINGS.  THE STATE LAW PERMITS SUCH PROCEEDINGS TO BE
INSTITUTED ON BEHALF OF A DISSOLVED CORPORATION WITHIN TWO YEARS; BUT
THESE PROCEEDINGS MAY BE BROUGHT EITHER IN THE STATE COURTS, OR, WHEN
APPROPRIATE, IN THE FEDERAL COURTS.  AFTER TWO YEARS, NO PROCEEDINGS
MAY BE INITIATED ON BEHALF OF THE CORPORATION IN EITHER STATE OR
FEDERAL COURTS, BUT SUCH PROCEEDINGS AS HAVE BEEN INSTITUTED DURING
THAT PERIOD IN ANY OF THESE COURTS MAY BE PROSECUTED TO COMPLETION. 
SINGER & TALCOTT CO. V. HUTCHINSON, SUPRA, PP. 52-53.  THE RIGHT OF
RESORT TO THE COURTS OF THE STATE, AND TO THOSE OF THE NATION HAVING
JURISDICTION, BOTH IN RESPECT OF THE INITIATION OF PROCEEDINGS AND THE
COMPLETION OF PROCEEDINGS ALREADY INITIATED, SO FAR AS ILLINOIS LAW IS
CONCERNED, STANDS UPON AN EXACT PARITY. 

THE AIM OF THIS PROCEEDING UNDER SEC. 77B IS TO BRING ABOUT A
REORGANIZATION OF A CORPORATION WHICH HAS BEEN DISSOLVED AND SHORN OF
ITS CAPACITY TO INITIATE ANY LEGAL PROCEEDING BY THE STATE WHICH
POSSESSES, IN RESPECT OF THE CORPORATION, THE POWER OF LIFE AND DEATH. 
IT IS NOT A PROCEEDING ON BEHALF OF CREDITORS.  IT IS NOT A LIQUIDATION
PROCEEDING HAVING FOR ITS OBJECT THE DISTRIBUTION OF THE CORPORATE
ASSETS.  THE DISSOLUTION WAS ADJUDGED BECAUSE THE CORPORATION HAD
DISOBEYED THE LAWS OF THE STATE.  FOR THAT REASON THE STATE PROHIBITED
THE CONTINUANCE OF THE CORPORATE ENTERPRISE.  THE STOCKHOLDERS,
HOWEVER, NOW SEEK TO ESCAPE THE PENALTY FOR THIS DERELICTION BY
RESUSCITATING AND CONTINUING THE CORPORATION, AND, TO THAT END, INVOKE
THE AID OF A FEDERAL STATUTE.  THIS IS SIMPLY AN ATTEMPT TO THWART A
VALID STATE LAW.  WHETHER THE ENTERPRISE BE CONTINUED UNDER THE
ORIGINAL NAME AND CHARTER OF THE CORPORATION, OR IN SOME NEW CORPORATE
NAME OR GUISE, CAN MAKE NO DIFFERENCE.  EITHER COURSE WOULD CONTRAVENE
THE LEGISLATIVELY-DECLARED POLICY OF THE STATE.  SECTION 77B CANNOT BE
REGARDED AS COUNTENANCING SUCH A RESULT. 

THE ONLY POWER LEFT TO THE CORPORATION WHEN THIS PROCEEDING WAS
BROUGHT WAS TO FINISH PENDING CASES BEGUN WITHIN TWO YEARS AFTER ITS
DISSOLUTION.  WITH THAT EXCEPTION, ITS CORPORATE POWERS WERE ENDED FOR
ALL TIME AND FOR ALL PURPOSES.  IT WAS WITHOUT AUTHORITY TO PURCHASE
THE CERTIFICATE ISSUED AT THE MECHANIC'S-LIEN FORECLOSURE SALE, OR TO
ADOPT RESOLUTIONS AUTHORIZING PROCEEDINGS UNDER SEC. 77B, OR TO BRING A
PROCEEDING TO EFFECTUATE A REORGANIZATION UNDER THAT SECTION.  IN
RESPECT OF THESE MATTERS THE CORPORATION WAS NONEXISTENT.  DECREE
REVERSED. 

MR. JUSTICE CARDOZO, DISSENTING. 

I AM UNABLE TO CONCUR IN THE OPINION OF THE COURT. 

1.  RESPONDENT, THOUGH DISSOLVED, WAS STILL A CORPORATION IN SUCH A
SENSE AND TO SUCH A DEGREE AS TO HAVE CAPACITY TO MAINTAIN A PROCEEDING
IN BANKRUPTCY FOR THE LIQUIDATION OF ITS ASSETS. 

BY BANKRUPTCY ACT SEC. 4, 11 U.S.C. SEC. 22(A), ANY CORPORATION, WITH
EXCEPTIONS NOT NOW MATERIAL, MAY BECOME A VOLUNTARY BANKRUPT. 

BY BANKRUPTCY ACT SEC. 1(6), 11 U.S.C. SEC. 1(6), "'CORPORATIONS'
SHALL MEAN ALL BODIES HAVING ANY OF THE POWERS AND PRIVILEGES OF
PRIVATE CORPORATIONS NOT POSSESSED BY INDIVIDUALS OR PARTNERSHIPS...." 

RESPONDENT, WHEN IT FILED ITS PETITION IN THE BANKRUPTCY COURT, WAS
STILL IN POSSESSION OF SOME OF THE PRIVILEGES AND POWERS OF PRIVATE
CORPORATIONS NOT POSSESSED BY INDIVIDUALS OR PARTNERSHIPS.  TRUE, A
DECREE OF DISSOLUTION HAD BEEN ENTERED BY A COURT OF ILLINOIS, THE
PLACE OF ITS DOMICILE.  TRUE, TWO YEARS HAD GONE BY SINCE THE MAKING OF
THAT DECREE.  NONE THE LESS, THE CORPORATION STILL HAD THE POWER, IF
SUITS WERE THEN PENDING EITHER IN ITS FAVOR OR AGAINST IT, TO LITIGATE
IN ITS CORPORATE NAME AND THROUGH ITS CORPORATE OFFICIALS.  LIFE ASSN.
OF AMERICA V. FASSETT, 102 ILL. 315; SINGER & TALCOTT STONE CO. V.
HUTCHINSON, 176 ILL. 48; 51 N.E. 622.  COMMERCIAL LOAN & TRUST CO. V.
MALLERS, 242 ILL. 50; 89 N.E. 661; GRAHAM & MORTON TRANSP.  CO. V.
OWENS, 165 ILL. APP. 100; GRIGGSVILLE STATE BANK V. NEWMAN, 275 ILL.
APP. 11.  WITH THE LICENSE OF ILLINOIS, RESPONDENT WAS ACTIVELY
DEFENDING SUITS FOR THE FORECLOSURE OF MORTGAGES ON ITS PROPERTY WHEN
IT WENT INTO THE FEDERAL COURT.  A FRAGMENT OF CORPORATE POWER WAS THUS
UNTOUCHED BY DISSOLUTION.  WITHIN THE DEFINITION OF THE BANKRUPTCY ACT,
THE BODY THAT RETAINED THIS POWER, AND INDEED EXERCISED IT TOO, WAS
STILL A CORPORATION.  THERE ARE SUGGESTIONS IN THE BOOKS THAT EVEN IN
THE ABSENCE OF A STATUTE PRESERVING CORPORATE CAPACITIES AFTER A DECREE
OF DISSOLUTION, THE BANKRUPTCY POWER TO DISTRIBUTE THE ASSETS OF AN
INSOLVENT DEBTOR IS NOT SUBJECT TO DESTRUCTION BY A WITHDRAWAL,
POSSIBLY A PRECIPITATE ONE, OF CORPORATE EXISTENCE.  SEE, E.G., HAMMOND
V. LYON REALTY CO., 59 F.(2D) 592, 594, 595.  CF. IN RE THOMAS, 78
F.(2D) 602; IN RE AMERICAN & BRITISH MFG. CORP., 300 FED. 839, 847;
CRESSON & CLEARFIELD COAL CO. V. STAUFFER, 148 FED. 981.  THE CASE AT
HAND DOES NOT CHARGE US WITH A DUTY TO DECIDE WHETHER THAT IS SO.  HERE
THE STATE HAS ELECTED TO KEEP THE CORPORATION IN EXISTENCE, MAIMED BUT
STILL ALIVE.  IN CHOOSING TO CREATE OR CONTINUE AN ARTIFICIAL ENTITY,
THOUGH WITH LIMITED AND NARROW POWERS, THE STATE SUBJECTS ITS CREATURE
TO THE BANKRUPTCY POWER OF THE CONGRESS IN SO FAR AS THAT POWER IS
DIRECTED AT JURISTIC BEINGS OF THAT ORDER.  CONGRESS HAS SAID TO
ILLINOIS:  "IF AN ASSOCIATION WITH ANY CORPORATE CAPACITIES EXISTS
UNDER YOUR LAWS, BANKRUPTCY - EITHER VOLUNTARY OR INVOLUNTARY - IS A
PROPER FORM OF LIQUIDATION."  TO THIS THE STATE RESPONDS, OR IS FIGURED
AS RESPONDING:  "AN ASSOCIATION WITH CORPORATE CAPACITIES DOES EXIST
UNDER OUR LAWS, BUT IT MAY NOT GO INTO A COURT OF BANKRUPTCY BECAUSE WE
WILL NOT GIVE IT THE CAPACITY TO GO THERE.  WINDING UP PROCEEDINGS FOR
ONE IN ITS POSITION ARE IN THE STATE TRIBUNALS ONLY."  THE RESPONSE,
EVEN IF TAKEN TO BE AUTHENTIC, MUST BE HELD OF NO AVAIL.  IT IS NOT
WITHIN THE COMPETENCE OF ILLINOIS BY ANY FORM OF WORDS TO PRESERVE THE
ARTIFICIAL ENTITY FOR A PURPOSE OF HER OWN AND DESTROY IT FOR THE
PURPOSE OF WITHDRAWAL FROM THE SUPREMACY OF FEDERAL LAW. 

2.  IF RESPONDENT HAS CAPACITY TO MAINTAIN A BANKRUPTCY PROCEEDING TO
LIQUIDATE ITS BUSINESS THROUGH THE MEDIUM OF A SALE FOR CASH, IT HAS
CAPACITY ALSO TO MAINTAIN A BANKRUPTCY PROCEEDING UNDER SEC. 77B. 

A PROCEEDING UNDER SEC. 77B IS STYLED ONE TO GIVE EFFECT TO A
CORPORATE REORGANIZATION.  WHATEVER ITS FORM OR LABEL, IT DERIVES ITS
ORIGIN AND VITALITY FROM THE BANKRUPTCY POWER.  CONTINENTAL ILLINOIS
NATIONAL BANK CO. V. CHICAGO, R.I. & P. RY. CO., 294 U.S. 648; CAMPBELL
V. ALLEGHANY CORPORATION, 75 F.(2D) 947; IN RE NEW ROCHELLE COAL &
LUMBER CO., 77 F.(2D) 881.  ONLY BECAUSE THE REMEDY IS TRACEABLE TO
THAT POWER IS IT CONSTITUTIONAL AND VALID.  THE NOTION IS BASELESS THAT
REORGANIZATION, EVEN WHEN INITIATED ON THE PETITION OF THE DEBTOR, IS
SOLELY OR CHIEFLY FOR THE BENEFIT OF SHAREHOLDERS.  IT IS EVEN MORE
DISTINCTIVELY AND COMMONLY FOR THE BENEFIT OF CREDITORS.  CF. IN RE
CENTRAL FUNDING CORPORATION, 75 F.(2D) 256, 261.  THE OLD FORM OF
BANKRUPTCY HAD IN VIEW A LIQUIDATION OF THE ASSETS FOR CASH AND NOTHING
ELSE, A METHOD OF DISPOSING OF THEM THAT MIGHT RESULT IN NEEDLESS
SACRIFICE.  THE NEW FORM OF BANKRUPTCY IS MORE FLEXIBLE AND OFTEN MORE
EFFICIENT, PERMITTING AS IT DOES, A DISPOSITION OF THE ASSETS UPON
CREDIT AS WELL AS FOR CASH, AND IN CONSIDERATION OF SHARES OF STOCK OR
BONDS TO BE ISSUED BY THE BUYER.  WHOEVER, BEING A CORPORATION, MAY
RESORT TO THE OLD FORM, IS AT LIBERTY, ACTING IN GOOD FAITH, TO RESORT
TO THE NEW.  THIS IS SO BY THE EXPRESS MANDATE OF THE STATUTE, WHICH
TELLS US, SEC. 77B; 11 U.S.C. SEC. 207(A), THAT "ANY CORPORATION WHICH
COULD BECOME A BANKRUPT UNDER SEC. 4(11 U.S.C. SEC. 22) OF THIS ACT"
MAY PETITION IN THE NEW PROCEEDING.  BY THAT TEST A DISSOLVED
CORPORATION WITH CAPACITY REQUISITE TO APPLY TO A COURT OF BANKRUPTCY
FOR A LIQUIDATION OF ITS ASSETS HAS THE CAPACITY REQUISITE TO APPLY FOR
A REORGANIZATION OF ITS BUSINESS.  AS TO THIS, THE LOWER FEDERAL COURTS
ARE IN GENERAL ACCORD.  OLD FORT IMPROVEMENT CO. V. LEA, 89 F.(2D) 286;
IN RE 4136 WILCOX BLDG. CORP., 86 F.(2D) 667; CAPITAL ENDOWMENT CO. V.
KROEGER, 86 F.(2D) 976; IN RE 211 EAST DELAWARE PLACE BLDG. CORP., 76
F.(2D) 834, 836.  THEIR OPINIONS VINDICATING THAT CONCLUSION ARE
INSTRUCTIVE AND CONVINCING. 

THIS IS NOT TO SAY THAT EVERY METHOD OF REORGANIZATION APPROPRIATE OR
PERMISSIBLE FOR A CORPORATION WHOSE LIFE IS UNIMPAIRED IS APPROPRIATE
OR PERMISSIBLE FOR ONE ALREADY DOOMED.  THE PLAN OF REORGANIZATION WILL
BE UNLAWFUL IF IT ATTEMPTS TO AUTHORIZE THE DEBTOR, FOLLOWING A DECREE
OF DISSOLUTION, TO DO BUSINESS THEREAFTER IN DEFIANCE OF STATE LAW.  IN
GENERAL THERE WILL BE LITTLE DIFFICULTY IN SO ADAPTING A DECREE TO THE
NECESSITIES OF THE PARTICULAR CASE AS TO ATTAIN THE NEEDED HARMONY. 
THE OPINIONS ALREADY CITED SUGGEST APPROPRIATE EXPEDIENTS.  OLD FORT
IMPROVEMENT CO. V. LEA, SUPRA, P. 290; CAPITAL ENDOWMENT CO. V.
KROEGER, SUPRA, P. 979.  INSTEAD OF CONTINUING THE BUSINESS THROUGH THE
PETITIONING DEBTOR OR ITS AGENTS, THE DECREE MAY PERMIT THE FORMATION
OF ANOTHER CORPORATION WHICH WILL TAKE OVER THE ASSETS, ISSUING SHARES
OF STOCK OR BONDS TO CREDITORS OR OTHERS.  THERE MAY BE NEW CAPITAL,
NEW SHAREHOLDERS, NEW DIRECTORS AND OFFICERS.  NEITHER IN THE RECORD
NOR IN THE PRECEDENTS DOES ONE FIND A BASIS FOR A HOLDING THAT THE
FORMATION OF SUCH A CORPORATION WILL BE IN CONFLICT WITH ANY PUBLIC
POLICY OF THE STATE OF ILLINOIS.  THE OLD CORPORATION WAS DISSOLVED FOR
FAILURE TO PAY FRANCHISE TAXES AND FILE AN ANNUAL REPORT.  THE NEW ONE,
IF CREATED, MAY PROMOTE THE WELFARE OF THE STATE BOTH FINANCIALLY AND
OTHERWISE.  BE THAT AS IT MAY, THE STATE WILL BE AMPLY COMPETENT TO
VINDICATE HER OWN DIGNITY IF THERE IS A FRAUD UPON HER LAWS.  NO PLAN
OF REORGANIZATION IS BEFORE US AT THIS TIME.  SO FAR AS APPEARS, NONE
HAS BEEN PREPARED.  WHETHER THE PLAN TO BE SUBMITTED LATER WILL BE
WORTHY OF CONFIRMATION IS A QUESTION FOR THE FUTURE. 

CASES MAY INDEED ARISE WHERE A COURT WILL BE SATISFIED UPON THE
FILING OF THE PETITION THAT REORGANIZATION IS NOT FEASIBLE.  IN THAT
EVENT THE PROCEEDING MAY BE DISMISSED AS NOT BROUGHT IN GOOD FAITH. 
TENNESSEE PUB. CO. V. AMERICAN BANK, 299 U.S. 18, 22.  AT TIMES A
DECREE OF DISSOLUTION MAY BE A CIRCUMSTANCE ALONG WITH OTHERS POINTING
TO THAT CONCLUSION.  HERE THE GOOD FAITH OF THE DEBTOR HAS BEEN FOUND
BY THE COURTS BELOW AFTER INQUIRY BY A MASTER TO WHOM THE CAUSE HAD
BEEN REFERRED.  THE SINGLE QUESTION PRESENTED TO US BY THE PETITION FOR
CERTIORARI IS ONE OF JURISDICTION.  DID A COURT OF BANKRUPTCY HAVE
POWER TO ENTERTAIN THE PROCEEDING AT THE INSTANCE OF SUCH A SUITOR?  I
HOLD THAT POWER DID NOT FAIL. 

MR. JUSTICE STONE AND MR. JUSTICE BLACK JOIN IN THIS OPINION. 
..END :






















KELLY V. WASHINGTON, 302 U.S. 1 


NO. 2.  ARGUED MARCH 9, 1937.  REARGUED OCTOBER 11, 12, 1937.  - DECIDED
NOVEMBER 8, 1937.  - 186 WASH. 589, 596 -  59 P.(2D) 373, REVERSED. 


1.  TUG-BOATS PLYING NAVIGABLE WATERS OF THE UNITED STATES, AND
EMPLOYED PARTLY IN TOWING OTHER VESSELS ON INTERSTATE AND FOREIGN
VOYAGES, OR IN MOVING VESSELS ENGAGED IN INTERSTATE AND FOREIGN
COMMERCE, IN AND ABOUT THE HARBORS WHERE THE TUGS ARE STATIONED, ARE
SUBJECT TO REGULATION BY CONGRESS UNDER THE COMMERCE CLAUSE.  P. 4. 

2.  THERE IS NO EXPRESS PROVISION IN FEDERAL LAWS AND REGULATIONS FOR
INSPECTION OF HULL AND MACHINERY, IN ORDER TO INSURE SAFETY OR
DETERMINE SEAWORTHINESS, OF MOTOR-DRIVEN TUGS WHICH DO NOT CARRY
PASSENGERS OR FREIGHT FOR HIRE, OR DO NOT HAVE ON BOARD ANY INFLAMMABLE
OR COMBUSTIBLE LIQUID CARGO IN BULK, OR DO NOT TRANSPORT EXPLOSIVES OR
LIKE DANGEROUS CARGO, OR ARE NOT SEAGOING VESSELS OF THREE HUNDRED
GROSS TONS OR OVER, OR (WITH RESPECT TO REQUIREMENTS AS TO LOAD LINES)
ARE UNDER ONE HUNDRED AND FIFTY GROSS TONS.  PP. 4, 8. 

3.  THE FEDERAL STATUTES ARE NOT TO BE CONSTRUED AS IMPLYING A
PROHIBITION OF INSPECTION BY STATE AUTHORITIES OF HULL AND MACHINERY,
TO INSURE SAFETY AND DETERMINE SEAWORTHINESS, IN THE CASE OF VESSELS
WHICH IN THIS RESPECT LIE OUTSIDE THE FEDERAL REQUIREMENTS.  P. 9. 

4.  STATE REGULATION OF INTERSTATE COMMERCE IS INVALID:  (A) IF IN
CONFLICT WITH AN EXPRESS REGULATION BY CONGRESS; (B) IF THE SUBJECT IS
ONE DEMANDING UNIFORMITY OF REGULATION SO THAT STATE ACTION IS
ALTOGETHER INADMISSIBLE IN THE ABSENCE OF FEDERAL ACTION; (C) WHERE
FEDERAL REGULATION HAS OCCUPIED THE FIELD.  P. 9. 

5.  WHEN CONGRESS CIRCUMSCRIBES ITS REGULATION OF A SUBJECT OF
INTERSTATE COMMERCE AND OCCUPIES ONLY A LIMITED FIELD, STATE REGULATION
OUTSIDE OF THAT LIMITED FIELD AND OTHERWISE ADMISSIBLE IS NOT FORBIDDEN
OR DISPLACED.  P. 10. 

6.  AN EXERCISE OF STATE POLICE POWER, WHICH WOULD BE VALID IF NOT
SUPERSEDED BY FEDERAL ACTION, IS SUPERSEDED ONLY WHERE THE REPUGNANCE
OR CONFLICT IS SO DIRECT AND POSITIVE THAT THE TWO ACTS CANNOT BE
RECONCILED OR CONSISTENTLY STAND TOGETHER.  P. 10. 

7.  INSPECTION OF THE HULL AND MACHINERY OF MOTOR-DRIVEN TUGS, IN
ORDER TO INSURE SAFETY AND SEAWORTHINESS, IS NOT SUCH A SUBJECT AS BY
ITS NATURE REQUIRES UNIFORMITY OF REGULATION, AND THEREFORE THIS FIELD
IS OPEN TO THE STATES IN THE ABSENCE OF CONFLICTING FEDERAL REGULATION
UNDER THE COMMERCE CLAUSE.  P. 14. 

IF, HOWEVER, THE STATE GOES FARTHER AND ATTEMPTS TO IMPOSE PARTICULAR
STANDARDS AS TO STRUCTURE, DESIGN, EQUIPMENT AND OPERATION, WHICH IN
THE JUDGMENT OF ITS AUTHORITIES MAY BE DESIRABLE BUT WHICH PASS BEYOND
WHAT IS PLAINLY ESSENTIAL TO SAFETY AND SEAWORTHINESS, THE STATE MAY
ENCOUNTER THE PRINCIPLE THAT SUCH REQUIREMENTS, IF IMPOSED AT ALL, MUST
BE THROUGH THE ACTION OF CONGRESS, WHICH CAN ESTABLISH A UNIFORM RULE. 

KELLY, DIRECTOR, ET AL. V. WASHINGTON EX REL. FOSS CO. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

CERTIORARI, 299 U.S. 539, TO REVIEW A REVERSAL OF A JUDGMENT DENYING
A WRIT OF PROHIBITION. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, OWNERS OF MOTOR-DRIVEN TUGS, SOUGHT A WRIT OF
PROHIBITION TO PREVENT THE ENFORCEMENT OF PROVISIONS OF C. 200 OF THE
WASHINGTON LAWS OF 1907(REM.  REV.  STAT., SECS. 9843 ET SEQ.) RELATING
TO THE INSPECTION AND REGULATION OF VESSELS.  THE SUPREME COURT OF THE
STATE DIRECTED JUDGMENT FOR RESPONDENTS, HOLDING THE STATUTE INVALID
"IF APPLIED TO THE NAVIGABLE WATERS OVER WHICH THE FEDERAL GOVERNMENT
HAS CONTROL."  186 WASH. 589, 596.  WE GRANTED CERTIORARI.  299 U.S.
539.  AFTER HEARING, WE ORDERED REARGUMENT AND REQUESTED THE ATTORNEY
GENERAL OF THE UNITED STATES TO PRESENT THE VIEWS OF THE GOVERNMENT
UPON THE QUESTION WHETHER THE STATE ACT OR THE ACTION OF THE OFFICERS
OF THE STATE THEREUNDER CONFLICTS WITH THE AUTHORITY OF THE UNITED
STATES OR WITH THE ACTION OF ITS OFFICERS UNDER THE ACTS OF CONGRESS. 
THE CASE HAS BEEN REARGUED ACCORDINGLY AND THE VIEWS OF THE GOVERNMENT
HAVE BEEN PRESENTED BOTH ORALLY AND UPON BRIEF IN SUPPORT OF THE
DECISION OF THE STATE COURT. 

THE MATERIAL FACTS, AS SET FORTH IN THE OPINION OF THE STATE COURT,
ARE THAT RESPONDENTS OWN AND OPERATE ONE HUNDRED AND THIRTY-NINE MOTOR
DRIVEN TUGS OF WHICH ONE HUNDRED AND ELEVEN ARE LESS THAN SIXTY-FIVE
FEET IN LENGTH.  SOME OF THESE TUGS ARE REGISTERED AND THE REMAINDER
ARE ENROLLED AND LICENSED UNDER FEDERAL LAWS.  FOR THE MOST PART THESE
TUGS ARE EMPLOYED IN INTRASTATE COMMERCE, BUT SOME TOW TO AND FROM
BRITISH COLUMBIA PORTS OR ACROSS THE COLUMBIA RIVER OR FROM OTHER PORTS
IN WASHINGTON TO PORTS IN OREGON.  PRACTICALLY ALL THESE TUGS ARE
CAPABLE OF ENGAGING IN INTERSTATE OR FOREIGN COMMERCE AND WILL DO SO IF
AND WHEN OPPORTUNITY OFFERS.  SOME OF THE LARGER TUGS HAVE TOWED AND
WILL TOW TO CALIFORNIA PORTS.  THE MAIN BUSINESS, HOWEVER, OF MOST OF
THE TUGS IS CONFINED TO MOVING VESSELS ENGAGED IN INTERSTATE AND
FOREIGN COMMERCE AND OTHER WORK IN AND ABOUT THE HARBORS WHERE THEY ARE
STATIONED.  186 WASH. P. 590. 

RESPONDENTS' COMPLAINT CHALLENGED THE VALIDITY OF A LARGE NUMBER OF
REQUIREMENTS OF THE STATE ACT WHICH IT WAS ALLEGED THE STATE
AUTHORITIES SOUGHT TO ENFORCE (186 WASH. P. 591), BUT THESE AUTHORITIES
BY THEIR ANSWER AND IN THE ARGUMENT AT BAR DISCLAIM AN INTENTION TO
ENFORCE ANY OF THE STATE REGULATIONS WHICH CONFLICT WITH THOSE
ESTABLISHED UNDER THE LAWS OF THE UNITED STATES. 

FIRST.  THE FIRST QUESTION IS WHETHER THE STATE LEGISLATION AS
APPLIED TO RESPONDENTS' MOTOR-DRIVEN TUGS IS IN ALL RESPECTS IN
CONFLICT WITH EXPRESS PROVISIONS OF THE FEDERAL LAWS AND REGULATIONS. 
WHEREVER SUCH CONFLICT EXISTS, THE STATE LEGISLATION MUST FALL. 
GIBBONS V. OGDEN, 9 WHEAT.  1, 210. 

CHAPTER 200 OF THE WASHINGTON LAWS OF 1907 IS DESCRIBED BY THE STATE
COURT AS "A COMPREHENSIVE AND COMPLETE CODE FOR THE INSPECTION AND
REGULATION OF EVERY VESSEL OPERATED BY MACHINERY WHICH IS NOT SUBJECT
TO INSPECTION UNDER THE LAWS OF THE UNITED STATES."  REM.  REV. STAT.,
SEC. 9844; 186 WASH. P. 590.  IT CANNOT BE DOUBTED THAT THE POWER OF
CONGRESS OVER INTERSTATE AND FOREIGN COMMERCE EMBRACES THE AUTHORITY TO
MAKE REGULATIONS FOR RESPONDENTS' TUGS.  FOSTER V. DAVENPORT, 22 HOW. 
244; MORAN V. NEW ORLEANS, 112 U.S. 69; HARMAN V. CHICAGO, 147 U.S.
396.  HAS CONGRESS EXERCISED THAT AUTHORITY AND, IF SO, TO WHAT
EXTENT? 

THE FEDERAL ACTS AND REGULATIONS WITH RESPECT TO VESSELS ON THE
NAVIGABLE WATERS OF THE UNITED STATES ARE ELABORATE.  THEY WERE WELL
DESCRIBED IN THE ARGUMENT OF THE ASSISTANT SOLICITOR GENERAL AS A MAZE
OF REGULATION.  PROVISIONS WITH RESPECT TO STEAM VESSELS ARE EXTREMELY
DETAILED.  46 U.S.C., C. 14, SECS. 361 ET SEQ. PROVISIONS AS TO MOTOR
DRIVEN VESSELS ARE FAR LESS COMPREHENSIVE AND ESTABLISH ONLY A LIMITED
REGULATION.  BY SEC. 4426 OF THE REVISED STATUTES, AS AMENDED BY THE
ACT OF MARCH 3, 1905, C. 1457, 33 STAT. 1029, 1030, AND BY THE ACT OF
MAY 16, 1906, C. 2460, 34 STAT. 193, 194, IT WAS PROVIDED THAT ALL
VESSELS "ABOVE FIFTEEN GROSS TONS CARRYING FREIGHT OR PASSENGERS FOR
HIRE, BUT NOT ENGAGED IN FISHING AS A REGULAR BUSINESS, PROPELLED BY
GAS, FLUID, NAPHTHA, OR ELECTRIC MOTORS," SHOULD BE SUBJECT TO THE
PROVISIONS OF THE STATUTE RELATING TO THE INSPECTION OF HULLS AND
BOILERS AND REQUIRING ENGINEERS AND PILOTS.  THESE VESSELS WERE ALSO
REQUIRED TO CARRY LIFE PRESERVERS FOR PASSENGERS AND, WHILE CARRYING
PASSENGERS, TO BE IN CHARGE OF A PERSON DULY LICENSED BY THE FEDERAL
LOCAL BOARD.  46 U.S.C. 404.  IT DOES NOT APPEAR THAT RESPONDENTS'
MOTOR-DRIVEN TUGS ARE WITHIN THE CLASS OF VESSELS WHICH CARRY FREIGHT
OR PASSENGERS FOR HIRE. 

IN 1910, CONGRESS ENACTED THE MOTOR BOAT ACT.  36 STAT. 462.  WHILE
THIS STATUTE IS APPLICABLE TO RESPONDENTS' TUGS, SO FAR AS IT GOES, ITS
SCOPE IS RESTRICTED.  SECTION 1 DEFINES THE WORD "MOTOR BOAT" AS
INCLUDING "EVERY VESSEL PROPELLED BY MACHINERY AND NOT MORE THAN SIXTY
FIVE FEET IN LENGTH EXCEPT TUGBOATS AND TOWBOATS PROPELLED BY STEAM." 
THERE FOLLOWS IN THAT SECTION A PROVISO THAT THE ENGINE, BOILER OR
OTHER OPERATING MACHINERY SHALL BE SUBJECT TO INSPECTION BY THE LOCAL
INSPECTORS OF STEAM VESSELS, AND TO THE APPROVAL OF THE DESIGN THEREOF,
WHERE THE VESSELS "ARE MORE THAN FORTY FEET IN LENGTH AND ARE PROPELLED
BY MACHINERY DRIVEN BY STEAM."  SECTION 2 DIVIDES THE MOTOR BOATS WHICH
ARE SUBJECT TO THE ACT INTO THREE CLASSES; (1) THOSE LESS THAN TWENTY
SIX FEET IN LENGTH; (2) THOSE TWENTY-SIX FEET OR OVER AND LESS THAN
FORTY FEET IN LENGTH; (3) THOSE FORTY FEET OR OVER AND NOT MORE THAN
SIXTY-FIVE FEET IN LENGTH.  SECTION 3 THEN PROVIDES FOR THE CARRYING OF
LIGHTS BY MOTOR BOATS OF THE RESPECTIVE CLASSES.  SECTION 4 RELATES TO
WHISTLES, FOG HORNS AND BELLS.  SECTIONS 5 AND 6 PROVIDE THAT MOTOR
BOATS SUBJECT TO THE ACT, AND ALSO MOTOR BOATS MORE THAN SIXTY-FIVE
FEET IN LENGTH, SHALL CARRY LIFE PRESERVERS OR LIFE BELTS OR SIMILAR
DEVICES AND FIRE EXTINGUISHING EQUIPMENT.  SECTION 5 REQUIRES THAT ALL
MOTOR BOATS CARRYING PASSENGERS FOR HIRE SHALL BE IN CHARGE OF A PERSON
DULY LICENSED BY THE FEDERAL LOCAL BOARD OF INSPECTORS, AND HAS THE
PROVISO THAT MOTOR BOATS SHALL NOT BE REQUIRED TO CARRY LICENSED
OFFICERS EXCEPT AS REQUIRED BY THE MOTOR BOAT ACT.  46 U.S.C. 511-518. 
UNDER THE FEDERAL REGULATIONS, MOTOR BOATS ARE REQUIRED TO HAVE ON
BOARD TWO COPIES OF THE PILOT RULES TO BE OBSERVED BY THEM, WITH COPIES
OF THE DEPARTMENTAL CIRCULAR. 

AS DOCUMENTED VESSELS OF THE UNITED STATES, MOTOR BOATS MUST BE
MARKED IN A SPECIFIED MANNER WITH THEIR NAMES AND HOME PORTS.  46
U.S.C. 46.  ALL VESSELS, REGARDLESS OF TONNAGE, SIZE, OR MANNER OF
PROPULSION, AND WHETHER OR NOT CARRYING FREIGHT OR PASSENGERS FOR HIRE
(OTHER THAN PUBLIC VESSELS OF THE UNITED STATES NOT ENGAGED IN
COMMERCIAL SERVICE), WHICH HAVE ON BOARD "ANY INFLAMMABLE OR
COMBUSTIBLE LIQUID CARGO IN BULK," ARE TO BE "CONSIDERED STEAM VESSELS"
AND ARE MADE SUBJECT TO THE PROVISIONS OF THE STATUTES RELATING TO SUCH
VESSELS.  THIS PROVISION DOES NOT APPLY TO INFLAMMABLE OR COMBUSTIBLE
LIQUID FOR USE AS FUEL OR STORES.  ACT OF JUNE 23, 1936, C. 729, 49
STAT. 1889; 46 U.S.C. 391A.  VESSELS TRANSPORTING EXPLOSIVES OR LIKE
DANGEROUS CARGO ARE SUBJECT TO INSPECTION TO DETERMINE THAT SUCH CARGO
MAY BE CARRIED WITH SAFETY, AND APPROPRIATE PERMIT FOR THAT PURPOSE IS
REQUIRED.  ACT OF AUGUST 26, 1935, C. 697, 49 STAT. 868, 46 U.S.C.
178.  "LOAD LINES" ARE ESTABLISHED FOR MERCHANT VESSELS OF ONE HUNDRED
AND FIFTY GROSS TONS OR OVER PROCEEDING ON A "COASTWISE VOYAGE BY SEA,"
AS DEFINED, THAT IS, OUTSIDE THE LINE DIVIDING INLAND WATERS FROM THE
HIGH SEAS.  ACT OF AUGUST 27, 1935, C. 747, 49 STAT. 888, 46 U.S.C.
88.  COMPARE INTERNATIONAL LOAD LINE CONVENTION OF JULY 5, 1930, 47
STAT. 2229.  IT APPEARS FROM STATEMENTS IN THE RECORD AND IN ARGUMENT,
WHICH WE DO NOT UNDERSTAND TO BE CHALLENGED, THAT THERE ARE NOT MORE
THAN THREE OF RESPONDENTS' MOTOR TUGS, HERE INVOLVED, WHICH EXCEED ONE
HUNDRED AND FIFTY TONS GROSS. 

THE LIMITED APPLICATION OF THE PROVISIONS OF THE FEDERAL LAWS AND
REGULATIONS TO VESSELS PROPELLED BY INTERNAL COMBUSTION ENGINES WAS
RECENTLY AND DEFINITELY BROUGHT TO THE ATTENTION OF CONGRESS.  THE
REPORT OF THE BUREAU OF NAVIGATION AND STEAMBOAT INSPECTION SHOWED THAT
THERE WERE MANY LARGE VESSELS OF THIS CLASS.  FN1  THE COMMITTEE ON
MERCHANT MARINE AND FISHERIES OF THE HOUSE OF REPRESENTATIVES FOUND
THAT THIS SITUATION WAS DUE TO THE FACT "THAT WHEN THE STEAMBOAT
INSPECTION LAWS WERE PASSED, INTERNAL-COMBUSTION-ENGINE LAWS WERE
UNKNOWN, WITH THE RESULT THAT MANY OF THE EXISTING LAWS APPLY TO STEAM
VESSELS AND UNDER THE OPINION OF THE LAW OFFICERS OF THE DEPARTMENT, DO
NOT APPLY TO VESSELS OPERATED BY MACHINERY OTHER THAN BY STEAM."  THE
COMMITTEE ADDED THAT "IT WAS VERY DOUBTFUL WHETHER UNDER EXISTING LAW
LIFEBOATS COULD BE REQUIRED ON THESE MOTOR VESSELS."  FN2  TO MEET THAT
SITUATION CONGRESS HAS PROVIDED THAT EXISTING LAWS COVERING THE
INSPECTIONS OF STEAM VESSELS SHALL BE APPLICABLE "TO SEAGOING VESSELS
OF THREE HUNDRED GROSS TONS AND OVER PROPELLED IN WHOLE OR IN PART BY
INTERNAL-COMBUSTION ENGINES" TO SUCH EXTENT AS MAY BE REQUIRED BY THE
REGULATIONS OF THE BOARD OF SUPERVISING INSPECTORS OF STEAM VESSELS
WITH THE APPROVAL OF THE SECRETARY OF COMMERCE.  ACT OF JUNE 20, 1936,
C. 628, 49 STAT. 1544, 46 U.S.C. 367.  EVEN AS THUS LIMITED, THE ACT
EXPRESSLY EXCEPTS VESSELS ENGAGED "IN FISHING, OYSTERING, CLAMMING,
CRABBING, OR ANY OTHER BRANCH OF THE FISHERY OR KELP OR SPONGE
INDUSTRY."  IT IS MANIFEST THAT CONGRESS CAREFULLY CONSIDERED THE
APPLICATION OF EXISTING LAWS AND DECIDED TO WHAT EXTENT ITS FIELD OF
REGULATION SHOULD BE WIDENED.  FN3  CONGRESS DECIDED TO EXTEND ITS
REGULATION AS TO MOTOR-DRIVEN VESSELS ONLY TO THOSE OF THE SPECIFIED
CLASS. 

WE FIND THE CONCLUSION INESCAPABLE THAT, APART FROM THE PARTICULAR
REQUIREMENTS IN OTHER RESPECTS, THERE IS NO PROVISION OF THE FEDERAL
LAWS AND REGULATIONS FOR THE INSPECTION OF THE HULL AND MACHINERY OF
RESPONDENTS' MOTOR-DRIVEN TUGS IN ORDER TO INSURE SAFETY OR DETERMINE
SEAWORTHINESS, WHERE THESE TUGS RESPECTIVELY DO NOT CARRY FREIGHT OR
PASSENGERS FOR HIRE, OR DO NOT HAVE ON BOARD ANY INFLAMMABLE OR
COMBUSTIBLE LIQUID CARGO IN BULK, OR DO NOT TRANSPORT EXPLOSIVES OR
LIKE DANGEROUS CARGO, OR ARE NOT SEAGOING VESSELS OF THREE HUNDRED
GROSS TONS OR OVER, OR, WITH RESPECT TO REQUIREMENTS AS TO LOAD LINES,
ARE UNDER ONE HUNDRED AND FIFTY GROSS TONS.  IT FOLLOWS THAT INSPECTION
OF THE HULL AND MACHINERY OF THESE TUGS BY STATE AUTHORITIES IN ORDER
TO INSURE SAFETY AND DETERMINE SEAWORTHINESS IS NOT IN CONFLICT WITH
ANY EXPRESS PROVISION OF THE FEDERAL LAWS AND REGULATIONS.  THE
TESTIMONY IN THE RECORD SHOWS THAT THOSE LAWS AND REGULATIONS ARE
ADMINISTERED IN ACCORDANCE WITH THIS VIEW. 

SECOND.  THE NEXT QUESTION IS WHETHER THE FEDERAL STATUTES ARE TO BE
CONSTRUED AS IMPLYING A PROHIBITION OF INSPECTION BY STATE AUTHORITIES
OF HULL AND MACHINERY TO INSURE SAFETY AND DETERMINE SEAWORTHINESS IN
THE CASE OF VESSELS WHICH IN THIS RESPECT LIE OUTSIDE THE FEDERAL
REQUIREMENTS. 

THE STATE COURT TOOK THE VIEW THAT CONGRESS HAD OCCUPIED THE FIELD
AND THAT NO ROOM WAS LEFT FOR STATE ACTION IN RELATION TO VESSELS
PLYING ON NAVIGABLE WATERS WITHIN THE CONTROL OF THE FEDERAL
GOVERNMENT.  186 WASH. PP. 593, 596.  AND THIS IS THE ARGUMENT PRESSED
BY RESPONDENTS AND THE SOLICITOR GENERAL. 

THIS ARGUMENT, INVOKING A FAMILIAR PRINCIPLE, WOULD BE UNNECESSARY
AND INAPPOSITE IF THERE WERE A DIRECT CONFLICT WITH AN EXPRESS
REGULATION OF CONGRESS ACTING WITHIN ITS PROVINCE.  THE ARGUMENT
PRESUPPOSES THE ABSENCE OF A CONFLICT OF THAT CHARACTER.  THE ARGUMENT
IS ALSO UNNECESSARY AND INAPPOSITE IF THE SUBJECT IS ONE DEMANDING
UNIFORMITY OF REGULATION SO THAT STATE ACTION IS ALTOGETHER
INADMISSIBLE IN THE ABSENCE OF FEDERAL ACTION.  IN THAT CLASS OF CASES
THE CONSTITUTION ITSELF OCCUPIES THE FIELD EVEN IF THERE IS NO FEDERAL
LEGISLATION.  THE ARGUMENT IS APPROPRIATELY ADDRESSED TO THOSE CASES
WHERE STATES MAY ACT IN THE ABSENCE OF FEDERAL ACTION BUT WHERE THERE
HAS BEEN FEDERAL ACTION GOVERNING THE SAME SUBJECT.  PRIGG V.
PENNSYLVANIA, 16 PET. 539, 617, 618; NORTHERN PACIFIC RY. CO. V.
WASHINGTON, 222 U.S. 370, 379; ERIE R. CO. V. NEW YORK, 233 U.S. 671,
681, 682; SOUTHERN RY. CO. V. RAILROAD COMMISSION, 236 U.S. 439, 446,
447; OREGON-WASHINGTON R. & N. CO. V. WASHINGTON, 270 U.S. 87, 101,
102; NAPIER V. ATLANTIC COAST LINE R. CO., 272 U.S. 605, 612, 613;
GILVARY V. CUYAHOGA VALLEY RY. CO., 292 U.S. 57, 60, 61. 

UNDER OUR CONSTITUTIONAL SYSTEM, THERE NECESSARILY REMAINS TO THE
STATES, UNTIL CONGRESS ACTS, A WIDE RANGE FOR THE PERMISSIBLE EXERCISE
OF POWER APPROPRIATE TO THEIR TERRITORIAL JURISDICTION ALTHOUGH
INTERSTATE COMMERCE MAY BE AFFECTED.  MINNESOTA RATE CASES, 230 U.S.
352, 402.  STATES ARE THUS ENABLED TO DEAL WITH LOCAL EXIGENCIES AND TO
EXERT IN THE ABSENCE OF CONFLICT WITH FEDERAL LEGISLATION AN ESSENTIAL
PROTECTIVE POWER.  AND WHEN CONGRESS DOES EXERCISE ITS PARAMOUNT
AUTHORITY, IT IS OBVIOUS THAT CONGRESS MAY DETERMINE HOW FAR ITS
REGULATION SHALL GO.  THERE IS NO CONSTITUTIONAL RULE WHICH COMPELS
CONGRESS TO OCCUPY THE WHOLE FIELD.  CONGRESS MAY CIRCUMSCRIBE ITS
REGULATION AND OCCUPY ONLY A LIMITED FIELD.  WHEN IT DOES SO, STATE
REGULATION OUTSIDE THAT LIMITED FIELD AND OTHERWISE ADMISSIBLE IS NOT
FORBIDDEN OR DISPLACED.  THE PRINCIPLE IS THOROUGHLY ESTABLISHED THAT
THE EXERCISE BY THE STATE OF ITS POLICE POWER, WHICH WOULD BE VALID IF
NOT SUPERSEDED BY FEDERAL ACTION, IS SUPERSEDED ONLY WHERE THE
REPUGNANCE OR CONFLICT IS SO "DIRECT AND POSITIVE" THAT THE TWO ACTS
CANNOT "BE RECONCILED OR CONSISTENTLY STAND TOGETHER."  SINNOT V.
DAVENPORT, 22 HOW.  227, 243; MISSOURI, K. & T. RY. CO. V. HABER, 169
U.S. 613, 623, 624; REID V. COLORADO, 187 U.S. 137, 148; CROSSMAN V.
LURMAN, 192 U.S. 189, 199, 200; ASBELL V. KANSAS, 209 U.S. 251, 257,
258; MISSOURI PACIFIC RY. CO. V. LARABEE MILLS, 211 U.S. 612, 623;
SAVAGE V. JONES, 225 U.S. 501, 533; ATLANTIC COAST LINE V. GEORGIA, 234
U.S. 280, 293, 294; CAREY V. SOUTH DAKOTA, 250 U.S. 118, 122; ATCHISON,
T. & S.F. RY. CO. V. RAILROAD COMMISSION, 283 U.S. 380, 392, 393; MINTZ
V. BALDWIN, 289 U.S. 346, 350.  GILVARY V. CUYAHOGA VALLEY RY. CO.,
SUPRA. 

A FEW ILLUSTRATIONS WILL SUFFICE.  IN REID V. COLORADO, SUPRA, THE
QUESTION AROSE WITH RESPECT TO A STATUTE OF COLORADO AIMED AT THE
PREVENTION OF THE INTRODUCTION INTO THE STATE OF DISEASED ANIMALS.  ONE
WHO HAD BEEN CONVICTED OF ITS VIOLATION CONTENDED THAT THE SUBJECT OF
THE TRANSPORTATION OF CATTLE BY ONE STATE TO ANOTHER HAD BEEN SO FAR
COVERED BY THE FEDERAL STATUTE, KNOWN AS THE ANIMAL INDUSTRY ACT (23
STAT. 31), THAT NO ENACTMENT BY THE STATE UPON THAT SUBJECT WAS
PERMISSIBLE.  WHILE THE CONGRESSIONAL ACT DID DEAL WITH THE SUBJECT OF
THE DRIVING OR TRANSPORTING OF DISEASED LIVESTOCK FROM ONE STATE INTO
ANOTHER, CONGRESS HAD GONE NO FURTHER THAN TO MAKE IT AN OFFENSE
AGAINST THE UNITED STATES FOR ONE KNOWINGLY TO TAKE OR SEND FROM ONE
STATE TO ANOTHER LIVESTOCK AFFECTED WITH INFECTIOUS OR COMMUNICABLE
DISEASE.  THE COURT CONCLUDED THAT THE STATE STATUTE, REQUIRING A
CERTIFICATE THAT THE CATTLE WERE FREE FROM DISEASE, IRRESPECTIVE OF THE
SHIPPER'S KNOWLEDGE OF THE ACTUAL CONDITION OF THE CATTLE, DID NOT
COVER THE SAME GROUND AS THE ACT OF CONGRESS AND WAS NOT INCONSISTENT
WITH IT.  ID., PP. 149, 150.  THE PRINCIPLE WAS THUS EMPHATICALLY
STATED:  "IT SHOULD NEVER BE HELD THAT CONGRESS INTENDS TO SUPERSEDE OR
BY ITS LEGISLATION SUSPEND THE EXERCISE OF THE POLICE POWERS OF THE
STATES, EVEN WHEN IT MAY DO SO, UNLESS IT PURPOSE TO EFFECT THAT RESULT
IS CLEARLY MANIFESTED.  THIS COURT HAS SAID - AND THE PRINCIPLE HAS
OFTEN BEEN REAFFIRMED - THAT, 'IN THE APPLICATION OF THIS PRINCIPLE OF
SUPREMACY OF AN ACT OF CONGRESS IN A CASE WHERE THE STATE LAW IS BUT
THE EXERCISE OF A RESERVED POWER, THE REPUGNANCE OR CONFLICT SHOULD BE
DIRECT AND POSITIVE, SO THAT THE TWO ACTS COULD NOT BE RECONCILED OR
CONSISTENTLY STAND TOGETHER'."  (P. 148.) 

IN SAVAGE V. JONES, SUPRA, THE COURT HELD THAT A STATUTE OF INDIANA
REGULATING THE SALE, AND REQUIRING A STATEMENT OF THE FORMULA OF
INGREDIENTS, OF CONCENTRATED COMMERCIAL FOOD FOR STOCK WAS NOT
REPUGNANT TO THE FEDERAL FOOD AND DRUGS ACT OF 1906(34 STAT. 768).  A
CITIZEN OF MINNESOTA SOUGHT TO RESTRAIN THE ENFORCEMENT OF THE INDIANA
STATUTE WITH RESPECT TO STOCK FOOD SOLD AND TRANSPORTED IN INTERSTATE
COMMERCE.  THE FEDERAL ACT DEALT WITH THE SUBJECT OF ADULTERATED AND
MISBRANDED FOODS AND DEFINED MISBRANDING.  IT COVERED ANY FALSE OR
MISLEADING STATEMENTS AS TO INGREDIENTS BUT DID NOT REQUIRE A
DISCLOSURE OF THE INGREDIENTS.  THE STATE STATUTE DEALT WITH THAT
OMITTED MATTER.  WE FOUND THAT THE STATE REQUIREMENTS COULD BE
SUSTAINED WITHOUT IMPAIRING THE OPERATION OF THE FEDERAL ACT AS TO THE
MATTERS WITH WHICH THAT ACT DEALT.  WE SAID:  "BUT THE INTENT TO
SUPERSEDE THE EXERCISE BY THE STATE OF ITS POLICE POWER AS TO MATTERS
NOT COVERED BY THE FEDERAL LEGISLATION IS NOT TO BE INFERRED FROM THE
MERE FACT THAT CONGRESS HAS SEEN FIT TO CIRCUMSCRIBE ITS REGULATION AND
TO OCCUPY A LIMITED FIELD.  IN OTHER WORDS, SUCH INTENT IS NOT TO BE
IMPLIED UNLESS THE ACT OF CONGRESS FAIRLY INTERPRETED IS IN ACTUAL
CONFLICT WITH THE LAW OF THE STATE."  (P. 533.) 

IN MINTZ V. BALDWIN, SUPRA, THE QUESTION RELATED TO THE VALIDITY OF
THE REQUIREMENT OF A NEW YORK STATUTE THAT CATTLE BROUGHT INTO THAT
STATE FOR DAIRY OR BREEDING PURPOSES, AND ALSO THE HERDS FROM WHICH
THEY CAME, SHOULD BE CERTIFIED TO BE FREE FROM BANG'S DISEASE BY THE
CHIEF SANITARY OFFICIAL OF THE STATE OF ORIGIN.  ONE OF THE CONTENTIONS
WAS THAT THE STATUTE CONFLICTED WITH THE FEDERAL STATUTE KNOWN AS THE
CATTLE CONTAGIOUS DISEASE ACT OF 1903.  32 STAT. 791.  TO ENABLE THE
SECRETARY OF AGRICULTURE TO PREVENT THE SPREAD OF DISEASE AMONG CATTLE
AND OTHER LIVESTOCK, HE WAS AUTHORIZED TO ESTABLISH REGULATIONS
CONCERNING INTERSTATE TRANSPORTATION FROM ANY PLACE WHERE HE HAD REASON
TO BELIEVE THAT DISEASES EXISTED.  WHEN AN INSPECTOR OF THE BUREAU OF
ANIMAL INDUSTRY CERTIFIED THAT HE HAD INSPECTED CATTLE AND HAD FOUND
THEM FREE FROM COMMUNICABLE DISEASE, THEY WERE PERMITTED TO BE
TRANSPORTED "WITHOUT FURTHER INSPECTION OR THE EXACTION OF FEES OF ANY
KIND EXCEPT SUCH AS MAY AT ANY TIME BE ORDERED OR EXACTED BY THE
SECRETARY OF AGRICULTURE."  (P. 351.)  BUT THE EXPRESS EXCLUSION OF
STATE INSPECTION EXTENDED ONLY TO CASES WHERE THERE HAD BEEN FEDERAL
INSPECTION AND A CERTIFICATE ISSUED.  ACCORDINGLY WE HELD THAT IT COULD
NOT BE EXTENDED TO THE CASE BEFORE THE COURT WHERE THE CATTLE HAD NOT
BEEN INSPECTED AND CERTIFIED BY FEDERAL AUTHORITY.  WE SAID:  "THE
PURPOSE OF CONGRESS TO SUPERSEDE OR EXCLUDE STATE ACTION AGAINST THE
RAVAGES OF THE DISEASE IS NOT LIGHTLY TO BE INFERRED.  THE INTENTION SO
TO DO MUST DEFINITELY AND CLEARLY APPEAR."  (P. 350.) 

THE APPLICATION OF THE PRINCIPLE IS STRONGLY FORTIFIED WHERE THE
STATE EXERCISES ITS POWER TO PROTECT THE LIVES AND THE HEALTH OF ITS
PEOPLE.  BUT THE PRINCIPLE IS NOT LIMITED TO CASES OF THAT
DESCRIPTION.  IT EXTENDS TO EXERTIONS OF STATE POWER DIRECTED TO MORE
GENERAL PURPOSES.  THUS IT WAS APPLIED IN SUSTAINING THE ORDER OF A
STATE COMMISSION REQUIRING INTERSTATE CARRIERS TO CONSTRUCT A UNION
PASSENGER STATION AS AGAINST THE CONTENTION THAT CONGRESS HAD OCCUPIED
THE FIELD - IN VIEW OF THE BROAD SWEEP OF THE ACT CONFERRING AUTHORITY
UPON THE INTERSTATE COMMISSION TO DEAL WITH THE OPERATION OF INTERSTATE
RAILROADS - AS IT WAS FOUND THAT CONGRESS HAD NOT AUTHORIZED THE
COMMISSION TO MEET THE PUBLIC NEED IN THE PARTICULAR MATTER IN
QUESTION.  ATCHISON, T. & S.F. RY. CO. V. RAILROAD COMMISSION, SUPRA,
P. 391. 

IN THE INSTANT CASE, IN RELATION TO THE INSPECTION OF THE HULL AND
MACHINERY OF RESPONDENTS' TUGS, THE STATE LAW TOUCHES THAT WHICH THE
FEDERAL LAWS AND REGULATIONS HAVE LEFT UNTOUCHED.  THERE IS PLAINLY NO
INCONSISTENCY WITH THE FEDERAL PROVISIONS.  IT WOULD HARDLY BE ASSERTED
THAT WHEN CONGRESS SET UP ITS ELABORATE REGULATIONS AS TO STEAM
VESSELS, IT DEPRIVED THE STATE OF THE EXERCISE OF ITS PROTECTIVE POWER
AS TO VESSELS NOT PROPELLED BY STEAM.  THE FACT THAT THE FEDERAL
REGULATIONS WERE NUMEROUS AND ELABORATE DOES NOT EXTEND THEM BEYOND THE
BOUNDARY THEY ESTABLISHED.  WHEN CONGRESS TOOK UP THE REGULATION OF
VESSELS OTHERWISE PROPELLED IT APPLIED ITS REQUIREMENTS TO VESSELS OF A
DESCRIBED TONNAGE WHICH CARRIED FREIGHT OR PASSENGERS FOR HIRE.  WHEN
CONGRESS A FEW YEARS LATER PASSED THE MOTOR BOAT ACT, IT DID NOT
ATTEMPT TO DEAL WITH THE SUBJECT COMPREHENSIVELY BUT LAID DOWN RULES IN
A FEW PARTICULARS OF A DEFINITELY RESTRICTED RANGE.  AND WHEN, IN 1936,
CONGRESS AGAIN ADDRESSED ITSELF TO THE SUBJECT, IT DID NOT PURPORT TO
OCCUPY THE ENTIRE FIELD BUT CONFINED ITS REGULATION TO SEAGOING VESSELS
OF THREE HUNDRED GROSS TONS AND OVER.  IT WOULD BE DIFFICULT TO FIND A
SERIES OF STATUTES IN WHICH THE INTENTION OF CONGRESS TO CIRCUMSCRIBE
ITS REGULATION AND TO OCCUPY A FIELD LIMITED BY DEFINITE DESCRIPTION IS
MORE CLEARLY MANIFESTED. 

WHEN THE STATE IS SEEKING TO PREVENT THE OPERATION OF UNSAFE AND
UNSEAWORTHY VESSELS IN GOING TO AND FROM ITS PORTS, IT IS EXERCISING A
PROTECTIVE POWER AKIN TO THAT WHICH ENABLES THE STATE TO EXCLUDE
DISEASED PERSONS, ANIMALS AND PLANTS.  THESE ARE NOT PROPER SUBJECTS OF
COMMERCE, AND AN UNSAFE AND UNSEAWORTHY VESSEL IS NOT A PROPER
INSTRUMENTALITY OF COMMERCE.  WHEN THE STATE IS SEEKING TO PROTECT A
VITAL INTEREST, WE HAVE ALWAYS BEEN SLOW TO FIND THAT THE INACTION OF
CONGRESS HAS SHORN THE STATE OF THE POWER WHICH IT WOULD OTHERWISE
POSSESS.  AND WE ARE UNABLE TO CONCLUDE THAT SO FAR AS CONCERNS THE
INSPECTION OF THE HULL AND MACHINERY OF THESE VESSELS OF RESPONDENTS IN
ORDER TO INSURE SAFETY AND SEAWORTHINESS, THE FEDERAL LAWS AND
REGULATIONS, WHICH AS WE HAVE FOUND ARE NOT EXPRESSLY APPLICABLE, CARRY
ANY IMPLIED PROHIBITION OF STATE ACTION. 

MUCH IS MADE OF THE FACT THAT THE STATE LAW REMAINED UNENFORCED FOR A
LONG PERIOD.  BUT IT DID NOT BECOME INOPERATIVE FOR THAT REASON.  WHERE
THE STATE POLICE POWER EXISTS, IT IS NOT LOST BY NON-EXERCISE BUT
REMAINS TO BE EXERTED AS LOCAL EXIGENCIES MAY DEMAND. 

THIRD.  THE REMAINING QUESTION IS WHETHER THE STATE LAW MUST FALL IN
ITS ENTIRETY, NOT BECAUSE OF INCONSISTENCY WITH FEDERAL ACTION, BUT
BECAUSE THE SUBJECT IS ONE AS TO WHICH UNIFORMITY OF REGULATION IS
REQUIRED AND HENCE, WHETHER OR NOT CONGRESS HAS ACTED, THE STATE IS
WITHOUT AUTHORITY.  COOLEY V. BOARD OF WARDENS, 12 HOW.  299, 319;
MINNESOTA RATE CASES, 230 U.S. 352, 399, 400. 

THE STATE LAW IS A COMPREHENSIVE CODE.  WHILE IT EXCEPTS VESSELS
WHICH ARE SUBJECT TO INSPECTION UNDER THE LAWS OF THE UNITED STATES, IT
HAS PROVISIONS WHICH MAY BE DEEMED TO FALL WITHIN THE CLASS OF
REGULATIONS WHICH CONGRESS ALONE CAN PROVIDE.  FOR EXAMPLE, CONGRESS
MAY ESTABLISH STANDARDS AND DESIGNS FOR THE STRUCTURE AND EQUIPMENT OF
VESSELS, AND MAY PRESCRIBE RULES FOR THEIR OPERATION, WHICH COULD NOT
PROPERLY BE LEFT TO THE DIVERSE ACTION OF THE STATES.  THE STATE OF
WASHINGTON MIGHT PRESCRIBE STANDARDS, DESIGNS, EQUIPMENT AND RULES OF
ONE SORT, OREGON ANOTHER, CALIFORNIA ANOTHER, AND SO ON.  BUT IT DOES
NOT FOLLOW THAT IN ALL RESPECTS THE STATE ACT MUST FAIL. 

WE HAVE FOUND THAT IN RELATION TO THE INSPECTION OF THE HULL AND
MACHINERY OF THESE TUGS, IN ORDER TO INSURE SAFETY AND SEAWORTHINESS,
THERE IS A FIELD IN WHICH THE STATE LAW COULD OPERATE WITHOUT COMING
INTO CONFLICT WITH PRESENT FEDERAL LAWS.  IS THAT A SUBJECT WHICH
NECESSARILY AND IN ALL ASPECTS REQUIRES UNIFORMITY OF REGULATION AND AS
TO WHICH THE STATE CANNOT ACT AT ALL, ALTHOUGH CONGRESS HAS NOT ACTED? 
WE HOLD THAT IT IS NOT.  A VESSEL WHICH IS ACTUALLY UNSAFE AND
UNSEAWORTHY IN THE PRIMARY AND COMMONLY UNDERSTOOD SENSE IS NOT WITHIN
THE PROTECTION OF THAT PRINCIPLE.  THE STATE MAY TREAT IT AS IT MAY
TREAT A DISEASED ANIMAL OR UNWHOLESOME FOOD.  IN SUCH A MATTER, THE
STATE MAY PROTECT ITS PEOPLE WITHOUT WAITING FOR FEDERAL ACTION
PROVIDING THE STATE ACTION DOES NOT COME INTO CONFLICT WITH FEDERAL
RULES.  IF, HOWEVER, THE STATE GOES FARTHER AND ATTEMPTS TO IMPOSE
PARTICULAR STANDARDS AS TO STRUCTURE, DESIGN, EQUIPMENT AND OPERATION
WHICH IN THE JUDGMENT OF ITS AUTHORITIES MAY BE DESIRABLE BUT PASS
BEYOND WHAT IS PLAINLY ESSENTIAL TO SAFETY AND SEAWORTHINESS, THE STATE
WILL ENCOUNTER THE PRINCIPLE THAT SUCH REQUIREMENTS, IF IMPOSED AT ALL,
MUST BE THROUGH THE ACTION OF CONGRESS WHICH CAN ESTABLISH A UNIFORM
RULE.  WHETHER THE STATE IN A PARTICULAR MATTER GOES TOO FAR MUST BE
LEFT TO BE DETERMINED WHEN THE PRECISE QUESTION ARISES. 

WE HAVE MENTIONED THE INSPECTION OF HULL AND MACHINERY OF
RESPONDENTS' VESSELS IN ORDER TO INSURE SAFETY AND SEAWORTHINESS. 
THERE MAY BE OTHER REQUIREMENTS OF THE STATE ACT WHICH ALSO LIE OUTSIDE
THE BOUNDS OF THE FEDERAL ACTION THUS FAR TAKEN AND AS TO WHICH
UNIFORMITY OF REGULATION IS NOT NEEDED.  THAT QUESTION CANNOT BE
SATISFACTORILY DETERMINED ON THIS RECORD AND MUST ALSO REMAIN FOR
DECISION AS IT MAY BE PRESENTED IN THE FUTURE IN CONNECTION WITH SOME
PARTICULAR ACTION TAKEN BY THE STATE AUTHORITIES.  OUR CONCLUSION IS
THAT THE STATE ACT HAS A PERMISSIBLE FIELD OF OPERATION IN RELATION TO
RESPONDENTS' TUGS AND THAT THE STATE COURT WAS IN ERROR IN HOLDING THE
ACT COMPLETELY UNENFORCEABLE IN DEFERENCE TO FEDERAL LAW.  THE JUDGMENT
OF THE STATE COURT TO THAT EFFECT IS REVERSED AND THE CAUSE IS REMANDED
FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  REPORT (JUNE 25, 1935) OF THE COMMITTEE ON MERCHANT MARINE AND
FISHERIES OF THE HOUSE OF REPRESENTATIVES ON "INSPECTION OF MOTOR
VESSELS."  H.R. REP. NO. 1321, 74TH CONG., 1ST SESS. REFERENCE WAS MADE
TO THE SITUATION AS DESCRIBED BY THE ASSISTANT DIRECTOR OF THE BUREAU
OF NAVIGATION AND STEAMBOAT INSPECTION AS FOLLOWS: 

"WE HAVE AT THE PRESENT TIME VESSELS THAT ARE OPERATED BY INTERNAL
COMBUSTION ENGINES, OF TONNAGES EXCEEDING 100, THERE ARE 772 VESSELS OF
819,935 GROSS TONS THAT WOULD COME UNDER THE PROVISION OF THIS LAW (THE
PROPOSED BILL). 

"FOR INSTANCE, WE HAVE IN THE CLASS FROM 5,000 TO 7,500 TONS 29
VESSELS, WITH A TOTAL TONNAGE OF 179,556; AND OVER 7,500 TONS WE HAVE
33 VESSELS, WITH A TOTAL TONNAGE OF 300,292. 

"THOSE LARGE VESSELS AT THE PRESENT TIME ARE SUBJECT TO ONLY A VERY
LIMITED INSPECTION - THAT IS, THE INSPECTION OF THE HULLS AND BOILERS,
AND ARE REQUIRED UNDER THE LAW TO CARRY A LICENSED ENGINEER AND A
LICENSED PILOT.  THE PROVISIONS OF SECTION 4472 THAT PROVIDES FOR
PROTECTION AGAINST FIRE DO NOT APPLY TO OUR 7,500-TON VESSELS THAT ARE
IN THE TRANS-ATLANTIC TRADE.  THEY ARE NOT REQUIRED UNDER THE LAW TO
CARRY A SINGLE LIFEBOAT.  THERE ARE MANY OTHER PROVISIONS OF THE
STEAMBOAT INSPECTION LAWS THAT ARE OF THE UTMOST IMPORTANCE TO SAFETY
OF LIFE THAT DO NOT APPLY TO THESE LARGE TRANSOCEANIC VESSELS.  AS A
MATTER OF FACT, WE ARE INSPECTING THOSE VESSELS AT THE PRESENT TIME,
BUT IT IS ONLY BECAUSE THE OWNERS OF THE SHIPS ACCEPT SUCH INSPECTION. 
IT IS NOT A MATTER OF LAW."    FN2  H.R. REP. NO. 2505, 74TH CONG., 2D
SESS. 

FN3  ID.
..END :















WHITE V. ARONSON, 302 U.S. 16 


NO. 20.  ARGUED OCTOBER 20, 1937.  - DECIDED NOVEMBER 8, 1937.  - 87
F.(2D) 272, AFFIRMED. 


1.  THE TERM "GAMES," AS USED IN SEC. 609, OF THE REVENUE ACT OF 1932,
DOES NOT INCLUDE JIGSAW PICTURE PUZZLES.  P. 17. 

THIS SECTION, HEADED "TAX ON SPORTING GOODS," IMPOSES A MANUFACTURER'S
SALES TAX ON A WIDE VARIETY OF ARTICLES USED IN SPORTS AND GAMES, NAMED
SPECIFICALLY, AND GENERALLY ON "GAMES AND PARTS OF GAMES," "AND ALL
SIMILAR ARTICLES COMMONLY OR COMMERCIALLY KNOWN AS SPORTING GOODS." 

2.  IT IS TO BE PRESUMED THAT CONGRESS, IN ENACTING SEC. 609 OF THE
REVENUE ACT OF 1932, WAS AWARE THAT, UNDER EARLIER LIKE PROVISIONS, NO
TAX ASSESSMENTS WERE LAID ON SALES OF PUZZLES, AND THAT CONGRESS KNEW
THAT IN LITIGATION OVER THE QUESTION, THERE WAS PROOF THAT IN
COMMERCIAL USAGE JIGSAW PUZZLES WERE NEVER REGARDED AS GAMES BUT A
RECOGNIZED DISTINCTION WAS MADE BETWEEN GAMES AND PUZZLES.  P. 20. 

3.  WHERE THERE IS A REASONABLE DOUBT AS TO THE MEANING OF A TAXING
ACT IT SHOULD BE CONSTRUED MOST FAVORABLY TO THE TAXPAYER.  ID. 

WHITE, FORMER COLLECTOR, V. ARONSON. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 301 U.S. 675, TO REVIEW A JUDGMENT REVERSING A JUDGMENT
OF THE DISTRICT COURT, 13 F.SUPP.  913, IN AN ACTION, TRIED WITHOUT A
JURY, TO RECOVER MONEY PAID AS TAXES. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

RESPONDENT, ARONSON, TRUSTEE IN BANKRUPTCY OF THE VIKING
MANUFACTURING COMPANY, INC., BROUGHT SUIT IN THE UNITED STATES DISTRICT
COURT FOR MASSACHUSETTS TO RECOVER $37,021.63 EXACTED OF THE BANKRUPT
BY THE COLLECTOR, UNDER COLOR OF SEC. 609 REVENUE ACT 1932,  FN1  C.
209, 47 STAT. 264, ON ACCOUNT OF JIGSAW PICTURE PUZZLES MANUFACTURED
AND SOLD FROM JUNE 21, 1932, TO MAY 1, 1933. 

THE PUZZLES WERE MADE BY CUTTING SELECTED PICTURES BACKED UP BY RIGID
CARDBOARD INTO FROM 162 TO 500 SEPARATE PIECES.  THESE WERE SOLD TO
THOSE WHO FOUND DIVERSION OR AMUSEMENT IN PUTTING THEM TOGETHER SO AS
TO REPRODUCE THE ORIGINAL PICTURE. 

OBVIOUSLY THE WORD "GAMES" IN THE STATUTE WAS INTENDED TO DESIGNATE
INSTRUMENTALITIES USED IN PLAYING THEM. 

THE COLLECTOR MAINTAINED THAT THE EFFORT PROPERLY TO ARRANGE THE
PIECES WAS FOR AMUSEMENT OR DIVERSION AND AMOUNTED TO A GAME, WITHIN
THE APPROPRIATE DEFINITION OF THE WORD.  FN2 ACCORDINGLY, HE SAID,
THESE INSTRUMENTALITIES WERE TAXABLE. 

ON THE OTHER HAND, RESPONDENT INSISTED THAT THE WORD "GAMES" REFERS
TO CONTESTS, PHYSICAL OR MENTAL, CONDUCTED ACCORDING TO SET RULES,
UNDERTAKEN FOR AMUSEMENT OR RECREATION OR FOR WINNING A STAKE,
REQUIRING THE PARTICIPATION OF TWO OR MORE PERSONS; FN2  ALSO THAT THE
SUNDRY PIECES WERE PARTS OF A PUZZLE, A CONTRIVANCE DESIGNED FOR
TESTING INGENUITY - SOMETHING NOT WITHIN THE SCOPE OF THE STATUTE. 
FN3 

THE TRIAL JUDGE, HAVING HEARD THE CAUSE UPON PLEADINGS AND EVIDENCE
WITHOUT A JURY, SUSTAINED THE COLLECTOR'S DEFENSE.  THE CIRCUIT COURT
OF APPEALS CONCLUDED OTHERWISE AND DIRECTED JUDGMENT FOR THE TRUSTEE. 
IT SAID - 

"THE SECTION (609) IS HEADED 'TAX ON SPORTING GOODS.'  THE ARTICLES
OR INSTRUMENTALITIES THERE SPECIFICALLY NAMED ARE SPORTING GOODS
WHETHER THEY ARE USED IN CONNECTION WITH GAMES OR IN SOME RECREATION OR
DIVERSION OTHER THAN A GAME.  BUT THE LARGER PORTION OF THE ARTICLES
SPECIFICALLY NAMED ARE ALL USED IN GAMES OF CONTEST BETWEEN TWO OR MORE
PERSONS, AND THE QUESTION OF CONSTRUCTION IS WHETHER THE ARTICLES OR
INSTRUMENTALITIES INTENDED TO BE COVERED BY THE PHRASE 'GAMES AND PARTS
OF GAMES' MEAN ARTICLES OR INSTRUMENTALITIES USED IN GAMES OF CONTEST
LIKE THE SPECIFIC ARTICLES PREVIOUSLY NAMED IN THE SECTION, WHICH ARE
USED IN GAMES OF TENNIS, POLO, BASEBALL, ETC., ALL OF WHICH INVOLVE A
CONTEST.... 

"FURTHERMORE THE PARTICULAR ARTICLE HERE SOUGHT TO BE TAXED IS A
PUZZLE.  A PUZZLE IS DEFINED AS 'SOMETHING WHICH PERPLEXES OR
EMBARRASSES; A DIFFICULT PROBLEM OR QUESTION; HENCE A TOY, CONTRIVANCE,
QUESTION OR PROBLEM DESIGNED FOR TESTING INGENUITY; AS A CROSS WORD
PUZZLE.'  WEBSTER'S NEW INTERNATIONAL DICTIONARY.  A JIGSAW PICTURE
PUZZLE COMES SQUARELY WITHIN THIS DEFINITION - 'A CONTRIVANCE  ...
DESIGNED FOR TESTING INGENUITY.'  NONE OF THE ARTICLES SPECIFICALLY
NAMED IN THE STATUTE AND USED IN GAMES IS A CONTRIVANCE DESIGNED FOR
TESTING INGENUITY.  THEY ARE DESIGNED FOR USE IN GAMES OF CONTEST,
WHILE A JIGSAW PUZZLE IS NOT." 

900(5), C. 18, 40 STAT. 1122, REVENUE ACT 1918, (REPEALED IN 1921) LAID
A TAX UPON TENNIS RACKETS, GOLF CLUBS, BASEBALL BATS, ETC.,  ...
"CHESS AND CHECKER BOARDS AND PIECES, DICE, GAMES AND PARTS OF GAMES." 
JIGSAW PICTURE PUZZLES WERE THEN WELL KNOWN ARTICLES OF COMMERCE.  THEY
GO BACK AT LEAST TO THE FIRST PART OF THE LAST CENTURY - PERHAPS MUCH
FARTHER.  THE SAME WORDS "GAMES OR PARTS OF GAMES" APPEAR AGAIN IN THE
LIKE SECTION - 609 - REVENUE ACT 1932. 

THE COURT BELOW POINTED OUT THAT - 

"A JIG SAW PUZZLE WAS NEVER TAXED UNDER SECTION 900(5) OF THE ACT OF
1918.  IT WAS NOT TAXED UNTIL AFTER THE PASSAGE OF SECTION 609 OF THE
REVENUE ACT OF 1932, WHEN THE GOVERNMENT ATTEMPTED TO TAX IT AS A
GAME.  THE ACT OF 1932 BECAME EFFECTIVE JUNE 6, 1932.  ON AUGUST 26,
1932, THE COMMISSIONER ISSUED A RULING STATING THAT JIG SAW OR DIE CUT
PICTURE PUZZLES WERE NOT TAXABLE.  ON NOVEMBER 14, 1932, HE ISSUED A
RULING THAT THEY WERE TAXABLE.  ON FEBRUARY 7, 1933, HE RULED THAT
AFTER FEBRUARY 7, 1933, THEY WERE TAXABLE IF THEY CONTAINED MORE THAN
FIFTY PIECES.  AND ON APRIL 20, 1933, HE RULED THAT THEY WERE TAXABLE
AFTER JUNE 21, 1932, IF THEY CONTAINED MORE THAN FIFTY PIECES." 

AMPLE EVIDENCE DISCLOSED THAT IN COMMERCIAL USAGE JIGSAW PICTURE
PUZZLES WERE NEVER REGARDED AS GAMES; ALSO THAT THE TRADE RECOGNIZED A
DEFINITE DISTINCTION BETWEEN PUZZLES AND GAMES.  WE MUST ASSUME THAT
CONGRESS HAD KNOWLEDGE OF THESE THINGS; ALSO KNEW THAT JIGSAW PICTURE
PUZZLES WERE NOT ASSESSED FOR TAXES UNDER THE ACTS OF 1917 AND 1918;
AND, FURTHER, WAS NOT UNMINDFUL OF THE UNCERTAINTIES CONCERNING THE
MEANING OF "GAME" DISCLOSED BY BALTIMORE TALKING BOARD CO. V. MILES,
280 FED. 658, AND MILLS NOVELTY CO. V. UNITED STATES, 50 F.(2D) 476. 

THE CLAIM FOR THE TAXPAYER HERE DOES NOT REST UPON AN EXCEPTION TO A
GENERAL RULE BUT UPON CONSTRUCTION OF GENERAL LANGUAGE FOUND IN THE
ACT. 

THE CIRCUIT COURT OF APPEALS RIGHTLY CONCLUDED THAT - "THE WORDS
'GAMES AND PARTS OF GAMES' BRING INTO THE LIST OF TAXABLES ONLY SUCH
OTHER ARTICLES AS ARE USED IN GAMES OF CONTEST, THE SAME AS THOSE
PARTICULARLY NAMED ARE AND WITH WHICH THEY ARE CLOSELY ASSOCIATED." 

CERTAINLY WE CANNOT SAY THAT THIS CONSTRUCTION WAS CLEARLY
ERRONEOUS.  OTHER JUDGES HAD ACCEPTED IT.  NOR CAN WE AFFIRM THAT THE
STATUTE AS FRAMED GAVE ADEQUATE NOTICE TO THE BANKRUPT THAT ITS PUZZLES
WERE TO BE TAXED. 

WHERE THERE IS A REASONABLE DOUBT AS TO THE MEANING OF A TAXING ACT
IT SHOULD BE CONSTRUED MOST FAVORABLY TO THE TAXPAYER.  GOULD V. GOULD,
245 U.S. 151.  "TAX LAWS, LIKE ALL OTHER LAWS, ARE MADE TO BE OBEYED. 
THEY SHOULD THEREFORE BE INTELLIGIBLE TO THOSE WHO ARE EXPECTED TO OBEY
THEM."  PHILADELPHIA STORAGE BATTERY CO. V. LEDERER, 21 F.(2D) 320,
321, 322. 

COUNSEL FOR THE COLLECTOR MAINTAIN THAT BALTIMORE TALKING BOARD CO.
V. MILES (1922), SUPRA, THE "OUIJA BOARD" CASE, AND MILLS NOVELTY CO.
V. UNITED STATES, (1931), SUPRA, "COIN OPERATED GAMBLING MACHINE" CASE,
ARE IN CONFLICT WITH THE RULING UNDER REVIEW. 

THESE CAUSES INVOLVED THE ACT OF 1918 AND IN BOTH THE JUDGES
EXPRESSED SHARPLY OPPOSING VIEWS.  OF COURSE, THE GENERAL LANGUAGE OF
THE OPINIONS MUST BE READ IN CONNECTION WITH THE FACTS. 

THE OUIJA BOARD IS WHOLLY DIFFERENT FROM THE PUZZLE HERE UNDER
CONSIDERATION; NOTHING INDICATES THAT IT WAS COMMONLY REGARDED BY THE
TRADE AS A PUZZLE; AND IN AN APPLICATION FOR A PATENT IT HAD ONCE BEEN
DESCRIBED AS A GAME.  IF THE OPINION CONSTRUES THE STATUTE AS EMBRACING
ALL INSTRUMENTALITIES, NOT NECESSARY FOR COMFORT, WHOSE CHIEF USE IS TO
AFFORD AMUSEMENT AND DIVERSION, IT IS OBVIOUSLY TOO BROAD.  KNITTING
FOR DIVERSION IS NOT A "GAME"; NOR IS HORSEBACK RIDING. 

THE COIN-OPERATED GAMBLING MACHINE HAS NO RESEMBLANCE TO A JIGSAW
PICTURE PUZZLE AND WHAT WAS SAID CONCERNING IT IS NOT HELPFUL IN THE
PROBLEM NOW BEFORE US. 

BOTH OF THESE CAUSES WERE DECIDED PRIOR TO THE ACT OF 1932 IN WHICH
THE WORDS OF THE 1918 ACT WERE REPEATED NOTWITHSTANDING THE DISCLOSED
UNCERTAINTIES CONCERNING THEIR MEANING AND WITH KNOWLEDGE OF THE FACT
THAT THERETOFORE PUZZLES HAD NOT BEEN ASSESSED FOR TAXATION UNDER
THEM. 

THE CHALLENGED JUDGMENT MUST BE AFFIRMED. 

FN1  REVENUE ACT 1932.  SEC. 609.  TAX ON SPORTING GOODS. 

"THERE IS HEREBY IMPOSED UPON THE FOLLOWING ARTICLES, SOLD BY THE
MANUFACTURER, PRODUCER, OR IMPORTER, A TAX EQUIVALENT TO 10 PER CENTUM
OF THE PRICE FOR WHICH SO SOLD:  TENNIS RACKETS, TENNIS RACKET FRAMES
AND STRINGS, NETS, RACKET COVERS AND PRESSES, SKATES, SNOWSHOES, SKIS,
TOBOGGANS, CANOE PADDLES, POLO MALLETS, BASEBALL BATS, GLOVES, MASKS,
PROTECTORS, SHOES AND UNIFORMS, FOOTBALL HELMETS, HARNESS AND UNIFORMS,
BASKET BALL GOALS AND UNIFORMS, GOLF BAGS AND CLUBS, LACROSSE STICKS,
BALLS OF ALL KINDS, INCLUDING BASEBALLS, FOOTBALLS, TENNIS, GOLF,
LACROSSE, BILLIARD AND POOL BALLS, FISHING RODS AND REELS, BILLIARD AND
POOL TABLES, CHESS AND CHECKER BOARDS AND PIECES, DICE, GAMES AND PARTS
OF GAMES (EXCEPT PLAYING CARDS AND CHILDREN'S TOYS AND GAMES); AND ALL
SIMILAR ARTICLES COMMONLY OR COMMERCIALLY KNOWN AS SPORTING GOODS." 

FN2  WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2D ED., GIVES THE WORD
"GAME" 17 DEFINITIONS.  "2 A AN AMUSEMENT OR DIVERSION; AS, MAKEBELIEVE
IS A CHILDREN'S GAME; FORMERLY, SPECIF., AMOROUS PLAY, 'DAUGHTERS OF
THE GAME.'  SHAK."  "4.  A CONTEST, PHYSICAL OR MENTAL, CONDUCTED
ACCORDING TO SET RULES, AND UNDERTAKEN FOR AMUSEMENT OR RECREATION, OR
FOR WINNING A STAKE***." 

FN3  "PUZZLE.  2.  SOMETHING WHICH PERPLEXES OR EMBARRASSES; A
DIFFICULT PROBLEM OR QUESTION; AN ENIGMA; HENCE, A TOY, CONTRIVANCE,
QUESTION, OR PROBLEM DESIGNED FOR TESTING INGENUITY; AS, A CROSSWORD
PUZZLE."  WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2D ED. 

MR. JUSTICE STONE AND MR. JUSTICE CARDOZO CONCUR IN THE RESULT. 
..END :







ATLANTIC REFINING CO. V. VIRGINIA, 302 U.S. 22 


NO. 1.  ARGUED OCTOBER 21, 22, 1936.  REARGUED OCTOBER 11, 1937.  -
DECIDED NOVEMBER 8, 1937.  - 165 VA. 492 -  183 S.E. 243, AFFIRMED. 


1.  AN ENTRANCE FEE EXACTED BY A STATE FROM A FOREIGN CORPORATION FOR
A LICENSE TO CARRY ON LOCAL BUSINESS IS NOT A TAX BUT COMPENSATION FOR
A PRIVILEGE, AND THE VALIDITY OF THE CHARGE IS NOT DEPENDENT UPON THE
METHOD BY WHICH THE AMOUNT IS DETERMINED.  P. 26. 

2.  THERE IS NOTHING TO SHOW THAT THE ENTRANCE FEE OF $5000 CHARGED
THE CORPORATION IN THIS CASE WAS MORE THAN REASONABLE COMPENSATION FOR
THE PRIVILEGE GRANTED.  P. 27. 

3.  THE AMOUNT OF AUTHORIZED CAPITAL STOCK DOES NOT REPRESENT EITHER
PROPERTY OWNED OR BUSINESS DONE BY A CORPORATION; AND AN ENTRANCE FEE
FOR THE PRIVILEGE OF DOING LOCAL BUSINESS, MEASURED BY THE AUTHORIZED
CAPITAL STOCK OF A FOREIGN CORPORATION HAVING PROPERTY SITUATE IN MANY
OF THE STATES AND ABROAD, USED IN INTERSTATE AND FOREIGN COMMERCE, DOES
NOT NECESSARILY BURDEN SUCH COMMERCE.  P. 28. 

4.  SUCH AN ENTRANCE FEE, SO MEASURED, HELD NOT AN ARBITRARY TAKING
OF PROPERTY BEYOND THE JURISDICTION, NOR ARBITRARY IN AMOUNT.  P. 29. 

THE VALUE OF THE PRIVILEGE IS DEPENDENT UPON THE FINANCIAL RESOURCES
OF THE CORPORATION; NOT ONLY PRESENT CAPITAL, BUT ALSO CAPITAL TO BE
PROCURED BY ISSUING ADDITIONAL STOCK.  THE POWER INHERENT IN THE
POSSESSION OF LARGE FINANCIAL RESOURCES IS NOT DEPENDENT UPON, OR
CONFINED TO, THE PLACE WHERE THE ASSETS ARE LOCATED; AND THE VALUE OF
THE PRIVILEGE TO EXERT THAT POWER IS NOT NECESSARILY MEASURED BY THE
AMOUNT OF THE PROPERTY LOCATED, OR BY THE AMOUNT OF THE LOCAL BUSINESS
DONE, IN THE STATE GRANTING THE PRIVILEGE. 

5.  VIRGINIA STATUTE IMPOSING GRADED FEES ON FOREIGN CORPORATIONS,
MEASURED ON AUTHORIZED CAPITAL STOCK, FOR AUTHORITY TO DO BUSINESS IN
THE STATE, DOES NOT OPERATE ARBITRARILY AND UNEQUALLY BETWEEN THE
APPELLANT AND OTHER FOREIGN CORPORATIONS SEEKING THE SAME PRIVILEGE
WITHIN THE STATE.  P. 31. 

6.  CUDAHY PACKING CO. V. HINKLE, 278 U.S. 460, AND OTHER CASES
DISTINGUISHED.  P. 32. 

ATLANTIC REFINING CO. V. VIRGINIA. 

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. 

APPEAL FROM A JUDGMENT SUSTAINING, ON REVIEW, THE REFUSAL OF THE
STATE CORPORATION COMMISSION OF VIRGINIA TO REFUND A SUM OF MONEY PAID,
UNDER PROTEST, BY THE APPELLANT CORPORATION, FOR A CERTIFICATE OF
AUTHORITY TO DO LOCAL BUSINESS IN THE STATE. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE ATLANTIC REFINING COMPANY IS A PENNSYLVANIA CORPORATION ENGAGED
IN REFINING AND SELLING GASOLINE AND PETROLEUM WHICH IT MARKETS
THROUGHOUT THE UNITED STATES AND IN FOREIGN COUNTRIES.  IN 1929 THE
YEAR'S SALES AGGREGATED MORE THAN $153,000,000.  PRIOR TO 1930 THE
COMPANY HAD NEVER APPLIED FOR PERMISSION TO DO BUSINESS IN VIRGINIA. 
IT HAD NOT DONE ANY INTRASTATE BUSINESS THERE; AND HAD NO PROPERTY OR
PLACE OF BUSINESS WITHIN THE STATE.  IT HAD DONE SOME INTERSTATE
BUSINESS, BUT HAD NOT PAID, OR BEEN REQUESTED BY THE STATE TO PAY,
EITHER AN ENTRANCE FEE OR TAXES.  IN JANUARY 1930 THE COMPANY APPLIED
TO THE STATE CORPORATION COMMISSION FOR A CERTIFICATE OF AUTHORITY TO
DO INTRASTATE BUSINESS.  ITS NET ASSETS WERE THEN $132,196,275; ITS
AUTHORIZED CAPITAL $100,000,000; ITS ISSUED CAPITAL $67,049,500.  THE
COMMISSION GRANTED THE CERTIFICATE; BUT, AS PRESCRIBED BY CHAPTER 53,
SEC. 38A OF THE ACTS OF ASSEMBLY OF VIRGINIA, 1910; TAX CODE OF
VIRGINIA (MICHIE, 1930) SEC. 207, SET FORTH IN THE MARGIN,  FN1
EXACTED FOR THE PRIVILEGE $5,000 AS AN ENTRANCE FEE.  PAYMENT WAS MADE
UNDER PROTEST.  HAVING DULY CLAIMED THAT BY REQUIRING IT THE STATUTE
VIOLATED THE FEDERAL CONSTITUTION, THE COMPANY REQUESTED REFUND OF THE
AMOUNT PAID.  THE COMMISSION REFUSED TO MAKE THE REFUND; THE HIGHEST
COURT OF THE STATE AFFIRMED ITS ORDER, 165 VA. 492; 183 S.E. 243, AND
THE CASE IS HERE ON THE COMPANY'S APPEAL. 

ANSWERING THE COMPANY'S STATEMENT UNDER RULE 12, THE COMMONWEALTH
OPPOSED OUR TAKING JURISDICTION.  ITS OBJECTION WAS THAT THE APPEAL
PRESENTED NO SUBSTANTIAL FEDERAL QUESTION, SINCE, IN 1918, THE VALIDITY
OF THE STATUTE WAS CHALLENGED UNDER SIMILAR CIRCUMSTANCES AND SUSTAINED
BY A UNANIMOUS COURT IN GENERAL RAILWAY SIGNAL CO. V. VIRGINIA, 246
U.S. 500; AND, IN 1928, WAS AGAIN SUSTAINED, BY A PER CURIAM OPINION,
IN WESTERN GAS CONSTRUCTION CO. V. VIRGINIA, 276 U.S. 597.  THE COMPANY
ASKS US TO OVERRULE THESE DECISIONS, CONTENDING THAT THEY ARE
INCONSISTENT WITH OTHER AND LATER CASES.  IT ASSERTS THAT IN SUSTAINING
THE VIRGINIA STATUTE THIS COURT FOLLOWED VIEWS EXPRESSED IN BALTIC
MINING CO. V. MASSACHUSETTS, 231 U.S. 68, 87; AND THAT THE DOCTRINE OF
THE BALTIC CASE HAS SINCE BEEN REPUDIATED, IN ALPHA PORTLAND CEMENT CO.
V. MASSACHUSETTS, 268 U.S. 203, 218 AND CUDAHY PACKING CO. V. HINKLE,
278 U.S. 460, 466.  CONSIDERATION OF THE JURISDICTION OF THIS COURT WAS
POSTPONED TO THE HEARING ON THE MERITS. 

BY THE STATUTE FOREIGN CORPORATIONS ARE DIVIDED, FOR THE PURPOSE OF
FIXING THE AMOUNT OF THE ENTRANCE FEE, INTO TWELVE CLASSES.  THE FEE
FOR THE LOWEST CLASS - THOSE WHOSE AUTHORIZED CAPITAL STOCK IS $50,000
OR LESS - IS $30.  THE FEE FOR THE HIGHEST CLASS - THOSE WHOSE
AUTHORIZED CAPITAL STOCK EXCEEDS $90,000,000 - IS $5,000.  THE COMPANY
DOES NOT OBJECT TO THE SUBJECT OR THE OCCASION OF THE EXACTION.  ITS
OBJECTION IS SOLELY TO THE MEASURE.  ITS CLAIM IS THAT THE STATUTE
IMPOSES AN UNCONSTITUTIONAL CONDITION BECAUSE IT DETERMINES THE AMOUNT
OF THE FEE BY THE AMOUNT OF THE COMPANY'S AUTHORIZED CAPITAL.  THE
CONTENTION IS THAT A FEE SO DETERMINED NECESSARILY BURDENS INTERSTATE
COMMERCE, DENIES DUE PROCESS, AND DENIES EQUAL PROTECTION OF THE LAWS. 

UNLIKE THE CASES IN WHICH THE DOCTRINE OF UNCONSTITUTIONAL CONDITIONS
HAS BEEN APPLIED, THE CONDITION HERE QUESTIONED DOES NOT GOVERN THE
CORPORATION'S CONDUCT AFTER ADMISSION.  BUT IT MAY BE ASSUMED THAT THE
RULE DECLARED IN TERRAL V. BURKE CONSTRUCTION CO., 257 U.S. 529, IS
APPLICABLE ALSO TO CONDITIONS TO BE PERFORMED WHOLLY BEFORE ADMISSION;
AND THAT THE $5,000 MUST BE REFUNDED IF ITS EXACTION INVOLVED DENIAL OF
ANY CONSTITUTIONAL RIGHT.  FOR WE ARE OF OPINION THAT IN REFUSING TO
GRANT THE AUTHORITY TO CARRY ON LOCAL BUSINESS EXCEPT UPON PAYMENT OF
THE $5,000 NO CONSTITUTIONAL RIGHT OF THE COMPANY WAS VIOLATED. 

FIRST.  VIRGINIA RECOGNIZED THE CONSTITUTIONAL RIGHT OF THE COMPANY
TO CARRY ON INTERSTATE BUSINESS WITHOUT PAYING AN ENTRANCE FEE.  ON THE
OTHER HAND, THE COMPANY CONCEDED THAT THE FEDERAL CONSTITUTION DOES NOT
CONFER UPON IT THE RIGHT TO ENGAGE IN INTRASTATE COMMERCE IN VIRGINIA
UNLESS IT HAS SECURED THE CONSENT OF THE STATE.  COMPARE HEMPHILL V.
ORLOFF, 277 U.S. 537, 548.  WHETHER THE PRIVILEGE SHALL BE GRANTED TO A
FOREIGN CORPORATION IS A MATTER OF STATE POLICY.  VIRGINIA MIGHT REFUSE
TO GRANT THE PRIVILEGE FOR ANY BUSINESS, OR MIGHT GRANT THE PRIVILEGE
FOR SOME KINDS OF BUSINESS AND DENY IT TO OTHERS.  FN2 IT MIGHT GRANT
THE PRIVILEGE TO ALL CORPORATIONS WITH SMALL CAPITAL WHILE DENYING THE
PRIVILEGE TO THOSE WHOSE CAPITAL OR RESOURCES ARE LARGE.  IT MIGHT
GRANT THE PRIVILEGE WITHOUT EXACTING COMPENSATION; OR IT COULD INSIST
UPON A SUBSTANTIAL PAYMENT AS A MEANS OF RAISING REVENUE. 

AS THE ENTRANCE FEE IS NOT A TAX, BUT COMPENSATION FOR A PRIVILEGE
APPLIED FOR AND GRANTED, NO REASON APPEARS WHY THE STATE IS NOT AS FREE
TO CHARGE $5,000 FOR THE PRIVILEGE AS IT WOULD BE TO CHARGE THAT AMOUNT
FOR A FRANCHISE GRANTED TO A LOCAL UTILITY, OR FOR A PARCEL OF LAND
WHICH IT OWNED.  IF VIRGINIA HAD THE POWER TO CHARGE $5,000 FOR THE
PRIVILEGE, THE PARTICULAR MEASURE APPLIED BY THE LEGISLATURE IN
ARRIVING AT THAT SUM WOULD SEEM TO BE LEGALLY IMMATERIAL; AND THE
COMPANY IS IN A POSITION LIKE THAT OF THE TAXPAYER IN CASTILLO V.
MCCONNICO, 168 U.S. 674, 680, OF WHOM IT WAS SAID:  "HIS RIGHT IS
LIMITED SOLELY TO THE INQUIRY WHETHER IN THE CASE WHICH HE PRESENTS THE
EFFECT OF APPLYING THE STATUTE IS TO DEPRIVE HIM OF HIS PROPERTY
WITHOUT DUE PROCESS OF LAW."  THE VALIDITY EVEN OF A TAX "CAN IN NO WAY
BE DEPENDENT UPON THE MODE WHICH THE STATE MAY DEEM FIT TO ADOPT." 
HOME INSURANCE CO. V. NEW YORK, 134 U.S. 594, 600.  "THE SELECTED
MEASURE MAY APPEAR TO BE SIMPLY A MATTER OF CONVENIENCE IN COMPUTATION
...  AND IF THE TAX PURPORTS TO BE LAID UPON A SUBJECT WITHIN THE
TAXING POWER OF THE STATE, IT IS NOT TO BE CONDEMNED BY THE APPLICATION
OF ANY ARTIFICIAL RULE  ..."  KANSAS CITY, F.S. & M. RY. CO. V. BOTKIN,
240 U.S. 227, 233.  COMPARE RAE CONSOLIDATED COPPER CO. V. UNITED
STATES, 268 U.S. 373, 376; NEW YORK V. LATROBE, 279 U.S. 421, 427. 

SECOND.  EVEN IF THE FEDERAL CONSTITUTION CONFERRED UPON EVERY
FOREIGN CORPORATION THE RIGHT TO ENTER ANY STATE AND CARRY ON THERE A
LOCAL BUSINESS UPON PAYING A REASONABLE FEE, THERE IS NOTHING IN THE
RECORD TO SHOW THAT THE $5,000 CHARGED IS MORE THAN REASONABLE
COMPENSATION FOR THE PRIVILEGE GRANTED.  THE PAYMENT REQUIRED IS A
SINGLE, NON-RECURRENT CHARGE - A PAYMENT IN ADVANCE FOR A PRIVILEGE
EXTENDING INTO THE LONG FUTURE.  NO MATTER HOW LARGE THE COMPANY'S
LOCAL BUSINESS MAY BE, NO MATTER HOW MUCH, OR HOW OFTEN, ITS ISSUED
CAPITAL MAY BE INCREASED, NO ADDITIONAL ENTRANCE FEE IS PAYABLE.  THE
VALUE OF SUCH A PRIVILEGE CANNOT BE GAUGED BY THE SALES EXPECTED IN THE
YEAR 1930.  FN3  THEY MAY INCREASE RAPIDLY FROM YEAR TO YEAR.  THE
CORPORATION WITH $132,196,275 ASSETS IN 1930 MAY HAVE MORE THAN DOUBLE
THE AMOUNT A DECADE LATER.  NOR IS IT UNREASONABLE TO BASE THE FEE UPON
THE AMOUNT OF THE CAPITAL AUTHORIZED AT THE TIME OF THE APPLICATION,
INSTEAD OF CHARGING A FEE BASED UPON THE AMOUNT OF THE CAPITAL THEN
ISSUED, OR UPON THE AMOUNT OF ASSETS THEN OWNED, AND EXACTING LATER
ADDITIONAL FEES IF, AND WHEN, MORE CAPITAL STOCK IS ISSUED OR MORE
ASSETS ARE ACQUIRED.  BY FIXING THE FEE IN ACCORDANCE WITH THE CAPITAL
AUTHORIZED AT THE TIME OF THE APPLICATION FOR ADMISSION, THE STATE
RELIEVES ITSELF OF THE NECESSITY OF KEEPING WATCH OF CHANGES IN THE
FUTURE IN THESE RESPECTS. 

THIRD.  IT IS CONTENDED THAT A FEE MEASURED SOLELY BY THE AMOUNT OF
THE CORPORATION'S AUTHORIZED CAPITAL STOCK NECESSARILY BURDENS
INTERSTATE COMMERCE.  IN SUPPORT OF THAT CONTENTION IT IS SAID THAT THE
AUTHORIZED CAPITAL STOCK REPRESENTS PROPERTY LOCATED IN FORTY-SEVEN
STATES AND SEVERAL FOREIGN COUNTRIES USED IN BOTH INTERSTATE AND
FOREIGN COMMERCE.  BUT THIS IS NOT TRUE.  AUTHORIZED CAPITAL HAS NO
NECESSARY RELATION TO THE PROPERTY ACTUALLY OWNED OR USED BY THE
CORPORATION; FURTHERMORE, THE FEE FOR WHICH IT IS THE MEASURE
REPRESENTS SIMPLY THE PRIVILEGE OF DOING A LOCAL BUSINESS.  BECAUSE THE
ENTRANCE FEE DOES NOT REPRESENT EITHER PROPERTY OR BUSINESS BEING DONE,
IT IS IMMATERIAL THAT IN FIXING ITS AMOUNT NO APPORTIONMENT IS MADE
BETWEEN THE PROPERTY OWNED OR THE BUSINESS DONE WITHIN THE STATE AND
THAT OWNED OR DONE ELSEWHERE. 

THE ENTRANCE FEE IS OBVIOUSLY NOT A CHARGE LAID UPON INTERSTATE
COMMERCE; NOR A CHARGE FURTIVELY DIRECTED AGAINST INTERSTATE COMMERCE;
NOR A CHARGE MEASURED BY SUCH COMMERCE.  ITS AMOUNT DOES NOT GROW OR
SHRINK ACCORDING TO THE VOLUME OF INTERSTATE COMMERCE OR THE AMOUNT OF
THE CAPITAL USED IN IT.  THE SIZE OF THE FEE WOULD BE EXACTLY THE SAME
IF THE COMPANY DID NO INTERSTATE COMMERCE IN VIRGINIA OR ELSEWHERE. 
THE ENTRANCE FEE IS COMPARABLE TO THE CHARTER, OR INCORPORATION, FEE OF
A DOMESTIC CORPORATION - A FEE COMMONLY MEASURED BY THE AMOUNT OF THE
CAPITAL AUTHORIZED.  FN4  IT HAS NEVER BEEN DOUBTED THAT SUCH A CHARGE
TO A DOMESTIC CORPORATION WHATEVER THE AMOUNT IS VALID, ALTHOUGH THE
COMPANY PROPOSES TO ENGAGE IN INTERSTATE COMMERCE AND TO ACQUIRE
PROPERTY ALSO IN OTHER STATES.  NO REASON IS SUGGESTED WHY A DIFFERENT
RULE SHOULD BE APPLIED TO THE ENTRANCE FEE CHARGED THIS FOREIGN
CORPORATION. 

FOURTH.  IT IS CONTENDED THAT A STATUTE WHICH MEASURES THE ENTRANCE
FEE SOLELY BY THE AUTHORIZED CAPITAL DEPRIVES THE CORPORATION OF ITS
PROPERTY WITHOUT DUE PROCESS, BECAUSE THE AMOUNT IS DETERMINED BY
REFERENCE TO PROPERTY BEYOND THE TAXING JURISDICTION; AND ALSO THAT
THIS CHARGE IS AN ARBITRARY TAKING OF PROPERTY.  AS HAS BEEN SHOWN, THE
AMOUNT OF THE ENTRANCE FEE IS NOT MEASURED BY PROPERTY, EITHER WITHIN
OR WITHOUT THE JURISDICTION; AND IT IS NOT A TAX UPON PROPERTY.  IT IS
PAYMENT FOR AN OPPORTUNITY GRANTED.  NOR IS IT A CHARGE ARBITRARY IN
AMOUNT.  THE VALUE OF THE PRIVILEGE ACQUIRED IS OBVIOUSLY DEPENDENT
UPON THE FINANCIAL RESOURCES OF THE CORPORATION - NOT ONLY UPON THE
CAPITAL POSSESSED AT THE TIME OF ITS ADMISSION TO DO BUSINESS, BUT ALSO
UPON THE CAPITAL WHICH IT WILL BE IN A POSITION TO SECURE LATER THROUGH
ITS EXISTING AUTHORITY TO ISSUE ADDITIONAL STOCK.  OBVIOUSLY, THE POWER
INHERENT IN THE POSSESSION OF LARGE FINANCIAL RESOURCES IS NOT
DEPENDENT UPON, OR CONFINED TO, THE PLACE WHERE THE ASSETS ARE
LOCATED.  COMPARE GREAT ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, 301
U.S. 412.  GREAT POWER MAY BE EXERTED BY THE COMPANY IN VIRGINIA
ALTHOUGH IT HAS LITTLE PROPERTY LOCATED THERE.  AND THE VALUE TO IT OF
THE PRIVILEGE TO EXERT THAT POWER IS NOT NECESSARILY MEASURED BY THE
AMOUNT OF THE PROPERTY LOCATED, OR BY THE AMOUNT OF THE LOCAL BUSINESS
DONE, IN VIRGINIA.  MOREOVER, IT IS IMMATERIAL WHETHER THE OPPORTUNITY
IS AVAILED OF OR NOT.  THE STATE GRANTS A LARGE PRIVILEGE.  IT MAY
DEMAND A CORRESPONDING PRICE. 

FIFTH.  IT IS CONTENDED THAT THE STATUTE BY MEASURING THE ENTRANCE
FEE SOLELY BY THE AUTHORIZED CAPITAL IS VOID BECAUSE IT OPERATES
ARBITRARILY AND UNEQUALLY BETWEEN THE APPELLANT AND OTHER FOREIGN
CORPORATIONS SEEKING THE SAME PRIVILEGE WITHIN THE STATE.  THE
CONTENTION IS UNFOUNDED.  EVEN IF A CORPORATION WHICH HAS NOT YET BEEN
ADMITTED TO DO BUSINESS WERE IN A POSITION TO COMPLAIN THAT THE STATE
DENIES IT EQUAL PROTECTION, THERE IS HERE NO BASIS FOR A CLAIM OF
DISCRIMINATION.  EVERY FOREIGN CORPORATION WITH AN AUTHORIZED CAPITAL
EXCEEDING NINETY MILLION DOLLARS WHICH SEEKS ADMISSION TO DO AN
INTRASTATE BUSINESS IS, AND HAS BEEN SINCE 1910, REQUIRED TO PAY THE
SAME ENTRANCE FEE.  NOR IS THERE ANY DISCRIMINATION BETWEEN FOREIGN
CORPORATIONS AND DOMESTIC OF WHICH THE COMPANY MAY COMPLAIN.  WHILE THE
CHARTER FEES OF DOMESTIC CORPORATIONS ARE SMALLER THAN THE ENTRANCE
FEES OF FOREIGN CORPORATIONS, VIRGINIA LEVIES UPON FOREIGN
CORPORATIONS, AFTER ADMISSION, LESS IN TAXES THAN IT DOES UPON DOMESTIC
CORPORATIONS.  A DOMESTIC CORPORATION WITH AN AUTHORIZED CAPITAL OF
$100,000,000 IS REQUIRED TO PAY A CHARTER FEE OF ONLY $600; BUT IT MUST
PAY EACH YEAR A FRANCHISE TAX OF $8,850.  A FOREIGN CORPORATION OF THAT
AUTHORIZED CAPITAL IS REQUIRED TO PAY AN ENTRANCE FEE OF $5,000, BUT
PAYS NO FRANCHISE TAX WHATEVER. 

THE DIFFERENCE IN THE POWERS OF A STATE OVER ENTRANCE FEES AND TAXES
WAS POINTED OUT IN HANOVER FIRE INS. CO. V. HARDING, 272 U.S. 494, 510
511:  "IN SUBJECTING A LAW OF THE STATE WHICH IMPOSES A CHARGE UPON
FOREIGN CORPORATIONS TO THE TEST WHETHER SUCH A CHARGE VIOLATES THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, A LINE HAS TO BE
DRAWN BETWEEN THE BURDEN IMPOSED BY THE STATE FOR THE LICENSE OR
PRIVILEGE TO DO BUSINESS IN THE STATE, AND THE TAX BURDEN WHICH, HAVING
SECURED THE RIGHT TO DO BUSINESS, THE FOREIGN CORPORATION MUST SHARE
WITH ALL THE CORPORATIONS AND OTHER TAXPAYERS OF THE STATE.  WITH
RESPECT TO THE ADMISSION FEE, SO TO SPEAK, WHICH THE FOREIGN
CORPORATION MUST PAY, TO BECOME A QUASI CITIZEN OF THE STATE AND
ENTITLED TO EQUAL PRIVILEGES WITH CITIZENS OF THE STATE, THE MEASURE OF
THE BURDEN IS IN THE DISCRETION OF THE STATE, AND ANY INEQUALITY AS
BETWEEN THE FOREIGN CORPORATION AND THE DOMESTIC CORPORATION IN THAT
REGARD DOES NOT COME WITHIN THE INHIBITION OF THE FOURTEENTH AMENDMENT;
BUT, AFTER ITS ADMISSION, THE FOREIGN CORPORATION STANDS EQUAL, AND IS
TO BE CLASSIFIED WITH DOMESTIC CORPORATIONS OF THE SAME KIND." 
SIXTH.  THE POSITION OF THE COMPANY IN THE CASE AT BAR DIFFERS
RADICALLY FROM THAT OF THE FOREIGN CORPORATION INVOLVED IN CUDAHY
PACKING CO. V. HINKLE, SUPRA, AND FROM THOSE IN THE OTHER DECISIONS OF
THIS COURT ON WHICH APPELLANT RELIES.  IN EACH OF THOSE CASES THE
CORPORATION HAD, BEFORE THE EXACTION HELD UNCONSTITUTIONAL, ENTERED THE
STATE WITH ITS PERMISSION TO DO LOCAL BUSINESS AND PURSUANT TO THAT
PERMISSION HAD ACQUIRED PROPERTY AND MADE OTHER EXPENDITURES.  THEIR
PROPERTY AND THE LOCAL BUSINESS WERE FOUND TO BE SO CLOSELY ASSOCIATED
WITH THIS INTERSTATE BUSINESS DONE THERE THAT THE EXACTION BURDENED IT.
THE EXACTION, ALTHOUGH CALLED IN SOME OF THOSE CASES A FILING FEE, WAS
IN EACH CASE STRICTLY A TAX; FOR IT WAS IMPOSED AFTER THE ADMITTANCE OF
THE CORPORATION INTO THE STATE.  FN5  IN THE CASE AT BAR THE SITUATION
IS DIFFERENT.  IN 1930, WHEN THE COMPANY APPLIED FOR THE PERMISSION TO
DO LOCAL BUSINESS, IT HAD NO PROPERTY WHATSOEVER WITHIN THE STATE.  IT
HAD NEVER DONE ANY LOCAL BUSINESS THERE.  ITS PRODUCT HAD BEEN MARKETED
LOCALLY IN VIRGINIA BY TWO OTHER FOREIGN CORPORATIONS WHICH HAD BEEN
DULY ADMITTED TO DO LOCAL BUSINESS, AND WHOSE FACILITIES THE COMPANY
HAD USED IN CONNECTION WITH ITS INTERSTATE BUSINESS.  THE COMPANY
WISHED TO MAKE A CHANGE.  IT WANTED TO ACQUIRE THE PROPERTY AND
BUSINESS OF THE TWO CORPORATIONS WHICH WERE MARKETING ITS PRODUCT AND
THEREAFTER TO CARRY ON THE LOCAL BUSINESS ITSELF.  IN ORDER TO DO SO IT
SOUGHT PERMISSION OF THE STATE TO ENGAGE IN LOCAL BUSINESS.  THE STATE
IN NO WAY ATTEMPTED TO IMPOSE AN ADDITIONAL BURDEN UPON THE COMPANY OR
OTHERWISE TO CHANGE THE CONDITIONS UNDER WHICH IT WAS OPERATING. 
VIRGINIA INSISTED MERELY THAT IF THE COMPANY WISHED TO CHANGE THE
EXISTING CONDITIONS, IT SHOULD COMPLY WITH THE STATUTE ENACTED FOURTEEN
YEARS BEFORE THE COMPANY BEGAN TO DO BUSINESS THERE.  AFFIRMED. 

FN1  "SECTION 207.  EVERY FOREIGN CORPORATION, WHEN IT OBTAINS FROM
THE STATE CORPORATION COMMISSION A CERTIFICATE OF AUTHORITY TO DO
BUSINESS IN THIS STATE, SHALL PAY AN ENTRANCE FEE INTO THE TREASURY OF
VIRGINIA TO BE ASCERTAINED AND FIXED AS FOLLOWS: 

FOR A COMPANY WHOSE MAXIMUM CAPITAL STOCK IS FIFTY THOUSAND DOLLARS,
OR LESS, THIRTY DOLLARS; 

FOR A COMPANY WHOSE CAPITAL STOCK IS OVER FIFTY THOUSAND DOLLARS, AND
NOT TO EXCEED ONE MILLION DOLLARS, SIXTY CENTS FOR EACH THOUSAND
DOLLARS OR FRACTION THEREOF; 

OVER ONE MILLION DOLLARS, AND NOT TO EXCEED TEN MILLION DOLLARS, ONE
THOUSAND DOLLARS; 

OVER TEN MILLION DOLLARS, AND NOT TO EXCEED TWENTY MILLION DOLLARS,
ONE THOUSAND TWO HUNDRED AND FIFTY DOLLARS; 

OVER TWENTY MILLION DOLLARS, AND NOT TO EXCEED THIRTY MILLION
DOLLARS, ONE THOUSAND FIVE HUNDRED DOLLARS; 

OVER THIRTY MILLION DOLLARS, AND NOT TO EXCEED FORTY MILLION DOLLARS,
ONE THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS; 

OVER FORTY MILLION DOLLARS, AND NOT TO EXCEED FIFTY MILLION DOLLARS,
TWO THOUSAND DOLLARS; 

OVER FIFTY MILLION DOLLARS, AND NOT TO EXCEED SIXTY MILLION DOLLARS,
TWO THOUSAND TWO HUNDRED AND FIFTY DOLLARS; 

OVER SIXTY MILLION DOLLARS, AND NOT TO EXCEED SEVENTY MILLION
DOLLARS, TWO THOUSAND FIVE HUNDRED DOLLARS; 

OVER SEVENTY MILLION DOLLARS, AND NOT TO EXCEED EIGHTY MILLION
DOLLARS, TWO THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS; 

OVER EIGHTY MILLION DOLLARS, AND NOT TO EXCEED NINETY MILLION
DOLLARS, THREE THOUSAND DOLLARS; 

OVER NINETY MILLION DOLLARS, FIVE THOUSAND DOLLARS. 

BUT FOREIGN CORPORATIONS WITHOUT CAPITAL STOCK SHALL PAY FIFTY
DOLLARS FOR SUCH CERTIFICATE OF AUTHORITY TO DO BUSINESS WITHIN THE
STATE. 

FOR THE PURPOSE OF THIS SECTION THE AMOUNT TO WHICH THE COMPANY IS
AUTHORIZED BY THE TERMS OF ITS CHARTER TO INCREASE ITS CAPITAL STOCK
SHALL BE CONSIDERED ITS MAXIMUM CAPITAL STOCK." 

FN2  VIRGINIA DOES, IN FACT, REFUSE TO FOREIGN CORPORATIONS THE
PRIVILEGE OF DOING ANY INTRASTATE PUBLIC SERVICE BUSINESS.  VIRGINIA
CONST.  (1902) SEC. 163.  THIS PROHIBITION WAS SUSTAINED IN RAILWAY
EXPRESS AGENCY, INC. V. VIRGINIA, 282 U.S. 440, AS APPLIED TO A FOREIGN
CORPORATION WISHING TO CARRY ON WITHIN THE STATE AN EXTENSIVE
INTERSTATE AND LOCAL EXPRESS BUSINESS. 

FN3  PRIOR TO 1930 TWO SUBSIDIARIES OF THE COMPANY DID A LOCAL
BUSINESS IN VIRGINIA; AND THE COMPANY PLANNED TO TAKE OVER ALL THEIR
PROPERTY AND BUSINESS WITHIN THE STATE.  THE AGGREGATE OF THE SALES OF
THE COMPANY IN INTERSTATE COMMERCE IN VIRGINIA IN 1929 AND OF SALES BY
THE SUBSIDIARIES IN INTRASTATE COMMERCE AMOUNTED TO $1,396,600.  ABOUT
TWO-THIRDS OF THIS BUSINESS WAS INTRASTATE. 

FN4  FORTY-THREE STATES AS WELL AS THE DISTRICT OF COLUMBIA, ALASKA,
HAWAII, THE PHILIPPINE ISLANDS AND PUERTO RICO IMPOSE A DOMESTIC
INCORPORATION FEE MEASURED BY THE AUTHORIZED AMOUNT OF CAPITAL OR
NUMBER OF SHARES.  ALABAMA CODE (1928) SEC. 6969; ARKANSAS STAT. (POPE,
1937) SEC. 2213; CALIFORNIA POL.  CODE (1933) SEC. 409, AS AMENDED L.
1935, C. 295; COLORADO STAT. ANN. (1935) C. 41, SEC. 70; CONNECTICUT
GEN. STAT. (1930) SEC. 3478; DELAWARE REV. CODE (1935) SECS. 95, 2104;
FLORIDA COMP. GEN. LAWS (1927) SEC. 6582; IDAHO CODE (1932) SEC. 65
809; INDIANA STAT. ANN. (BURNS, 1933) SEC. 25-602; IOWA CODE (1935)
SEC. 8349; KANSAS GEN. STAT. (1935) SEC. 17-221; KENTUCKY STAT. (1936)
SEC. 4225; LOUISIANA GEN. STAT. (1932) SEC. 1147; MAINE REV. STAT.
(1930) C. 56, SEC. 10, AS AMENDED L. 1931, C. 240; MARYLAND CODE (SUPP.
1935) ART. 81, SEC. 133; MASSACHUSETTS GEN. LAWS (1932) C. 156, SEC.
53; MICHIGAN COMP. LAWS (1929) SEC. 10138; MINNESOTA STAT. (MASON,
SUPP. 1936) SEC. 7475; MISSISSIPPI CODE (1930) SEC. 4137; MISSOURI
CONST. ART. X, SEC. 21, REV. STAT. (1929) SEC. 4539; MONTANA REV. CODE
(1935) SEC. 145, AS AMENDED L. 1935, C. 50; NEBRASKA COMP. STAT. (1929)
SEC. 33-103; NEVADA COMP. LAWS (1929) SEC. 1676, AS AMENDED L. 1931, C.
224, SEC. 10; NEW HAMPSHIRE PUB. LAWS (1926) C. 225, SEC. 91; NEW
JERSEY COMP. STAT. (SUPP. 1925-1930) SEC. 47-114; NEW MEXICO STAT.
(1929) SEC. 32-223; NEW YORK TAX LAW (MCKINNEY, 1936) SEC. 180, AS
AMENDED L. 1937, C. 359, SEC. 7; NORTH CAROLINA CODE (1935) SEC. 1218,
AS AMENDED L. 1937, C. 171; NORTH DAKOTA COMP. LAWS (1913) SEC. 4509;
OHIO CODE (1936) SEC. 176; OKLAHOMA STAT. (1931) SEC. 3749; OREGON CODE
(1930) SEC. 25-206; PENNSYLVANIA STAT. ANN. (PURDON, 1929) TIT. 72,
SEC. 1822; RHODE ISLAND GEN. LAWS (1923) C. 248, SEC. 85, AS AMENDED L.
1925, C. 651, SEC. 3; SOUTH CAROLINA CODE (1932) SEC. 7738; SOUTH
DAKOTA COMP. LAWS (1929) SEC. 5334, AS AMENDED L. 1931, C. 225;
TENNESSEE CODE (WILLIAMS, 1934) SEC. 1248.106; TEXAS REV. CIV. STAT.
(1925) ART. 3914, AS AMENDED L. 1931, C. 120, SEC. 1; VERMONT PUB. LAWS
(1933) SEC. 920; VIRGINIA TAX CODE (MICHIE, 1936) SEC. 206; WASHINGTON
REV. STAT. (REMINGTON, 1932) SEC. 3836-1, AS AMENDED L. 1937, C. 70,
SEC. 1; WISCONSIN STAT. (1935) SEC. 180.02; WYOMING REV. STAT. (1931)
SEC. 28-102; DISTRICT OF COLUMBIA CODE (1929) TIT. 10, SEC. 14; ALASKA
COMP. LAWS (1933) SEC. 1012; HAWAII REV. LAWS (1935) SEC. 6753;
PHILIPPINE ISLANDS L. 1906, ACT 1459, SEC. 8, AS AMENDED L. 1912, ACT
2135, SEC. 1, L. 1915, ACT 2452, L. 1918, ACT 2728, SEC. 3, L. 1928,
ACT 3518, SEC. 5; PUERTO RICO L. 1911, ACT 30, SEC. 63A, AS AMENDED L.
1912, ACT 25. 

IN UTAH THE INCORPORATION FEE IS MEASURED BY THAT PROPORTION OF THE
CORPORATION'S STOCK "REPRESENTED OR TO BE REPRESENTED BY ITS PROPERTY
OWNED AND BUSINESS DONE" IN THE STATE.  UTAH REV. STAT. (1933) SEC. 28
1-2.  IN ILLINOIS AN "INITIAL LICENSE FEE" IS PAYABLE AT THE TIME THE
CORPORATION FILES ITS FIRST REPORT OF ISSUANCE OF SHARES, AND IS
MEASURED BY THE VALUE OF THE ENTIRE CONSIDERATION RECEIVED FOR ITS
SHARES SO ISSUED.  ILLINOIS REV. STAT. (B.A. ED. 1937) C. 32, SECS.
157.128-157.130.  IN ARIZONA, GEORGIA AND WEST VIRGINIA THERE IS NO
CHARTER OR INCORPORATION FEE OTHER THAN SMALL FIXED CHARGES FOR SUCH
SERVICES AS ISSUING AND FILING THE CERTIFICATE OF INCORPORATION. 
ARIZONA REV. CODE (1928) SEC. 1459; GEORGIA CODE (1933) SEC. 22-307;
WEST VIRGINIA CODE (1937) SEC. 5819. 

FN5  THIS IS TRUE OF CUDAHY PACKING CO. V. HINKLE, 278 U.S. 460;
WESTERN UNION TEL. CO. V. KANSAS, 216 U.S. 1; PULLMAN CO. V. KANSAS,
216 U.S. 56; LUDWIG V. WESTERN UNION TEL. CO., 216 U.S. 146; AND ALSO
OF LOONEY V. CRANE CO., 245 U.S. 178, ALTHOUGH THERE THE ADMISSION HAD
BEEN UNDER A TEXAS LICENSE, AND THE ACT CHALLENGED IMPOSED A GREATLY
INCREASED FILING FEE APPLICABLE TO THE EXTENSION OF THE LICENSE.  THE
EXACTIONS INVOLVED IN INTERNATIONAL PAPER CO. V. MASSACHUSETTS, 246
U.S. 135; LOCOMOBILE CO. V. MASSACHUSETTS, 246 U.S. 146; AND AIR-WAY
ELEC.  APPLIANCE CORP. V. DAY, 266 U.S. 71, WERE ANNUAL FRANCHISE TAXES
APPLICABLE ONLY AFTER THE CORPORATION HAD BEEN DULY ADMITTED.  IN
CHENEY BROS. CO. V. MASSACHUSETTS, 246 U.S. 147, AND ALPHA PORTLAND
CEMENT CO. V. MASSACHUSETTS, 268 U.S. 203, THE FOREIGN CORPORATION WAS
ENGAGED EXCLUSIVELY IN INTERSTATE BUSINESS, SO THAT THE SUBJECT OF THE
EXACTION WAS NOT TAXABLE. 

THE CHIEF JUSTICE TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :



BOGARDUS V. COMMISSIONER, 302 U.S. 34 


NO. 15.  ARGUED OCTOBER 18, 1937.  - DECIDED NOVEMBER 8, 1937.  - 88
F.(2D) 646, REVERSED. 


1.  A CONCLUSION BY THE BOARD OF TAX APPEALS WHICH IS BUT A CONCLUSION
OF LAW OR A DETERMINATION OF A MIXED QUESTION OF LAW AND FACT BASED
UPON OTHER FACTS FOUND, IS SUBJECT TO REVIEW.  P. 38. 

2.  A PAYMENT CAN NOT BE BOTH "COMPENSATION FOR PERSONAL SERVICE"
WITHIN THE MEANING OF SEC. 22(A) OF THE REVENUE ACT OF 1928 AND A
"GIFT" UNDER (B)(3) OF THE SAME SECTION.  OLD COLONY TRUST CO. V.
COMMISSIONER, 279 U.S. 716, DISTINGUISHED.  P. 39. 

3.  PAYMENTS MADE TO PRESENT AND FORMER EMPLOYEES OF A CORPORATION,
BY ITS FORMER STOCKHOLDERS, ACTING THROUGH A NEW CORPORATION WHICH HAD
TAKEN OVER PART OF THE PROPERTY OF THE OTHER,  - HELD NOT "COMPENSATION
FOR PERSONAL SERVICES," TAXABLE TO THE RECIPIENTS AS INCOME UNDER SEC.
22(A) OF THE REVENUE ACT OF 1928, BUT "GIFTS," EXEMPTED FROM TAXATION
BY SUBDIVISION (B)(3) OF THAT SECTION.  P. 40. 

NO CONNECTION SUBSISTED BETWEEN THE OLD CORPORATION OR THE RECIPIENTS
OF THE GIFTS, ON THE ONE HAND, AND THE MAKERS OF THE GIFTS AND THEIR
NEW CORPORATION, ON THE OTHER.  THE GIFTS WERE MADE, WITHOUT ANY LEGAL
OR MORAL OBLIGATION, NOT FOR ANY SERVICES RENDERED OR TO BE RENDERED OR
FOR ANY CONSIDERATION GIVEN OR TO BE GIVEN BY ANY OF THE RECIPIENTS TO
THE DONORS OR THE NEW CORPORATION, BUT WERE ACTS OF SPONTANEOUS
GENEROSITY IN APPRECIATION OF THE PAST LOYALTY OF THE RECIPIENTS WHICH
HAD REDOUNDED TO THE PROFIT OF THE DONORS WHEN STOCKHOLDERS OF THE
OLDER COMPANY. 

4.  WHEN ALL THE FACTS AND CIRCUMSTANCES CLEARLY PROVE AN INTENT TO
MAKE A GIFT, THE ERRONEOUS USE OF THE TERMS "HONORARIUM" AND "BONUS"
CAN NOT CONVERT THE GIFT INTO A PAYMENT FOR SERVICES.  P. 42. 

5.  A GIFT IS NONE THE LESS A GIFT BECAUSE INSPIRED BY GRATITUDE FOR
THE PAST FAITHFUL SERVICE OF THE RECIPIENT.  P. 44. 

BOGARDUS V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

REVIEW BY CERTIORARI, 301 U.S. 674, OF A JUDGMENT WHICH AFFIRMED AN
ORDER OF THE BOARD OF TAX APPEALS SUSTAINING A DEFICIENCY ASSESSMENT OF
INCOME TAX. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER A SUM OF MONEY RECEIVED BY
PETITIONER IN JANUARY, 1931, WAS "COMPENSATION" SUBJECT TO THE FEDERAL
INCOME TAX, OR A "GIFT" EXEMPT THEREFROM.  THE COMMISSIONER HELD IT TO
BE COMPENSATION, CONSTITUTING PART OF PETITIONER'S GROSS INCOME, AND
DECLARED A DEFICIENCY.  THE BOARD OF TAX APPEALS SUSTAINED THE
DETERMINATION OF THE COMMISSIONER; AND THE COURT BELOW, UPON REVIEW,
AFFIRMED THE ORDER OF THE BOARD.  88 F.(2D) 646. 

THE DECISIONS OF OTHER COURTS OF APPEAL UPON THE QUESTION UNDER
REVIEW ARE CONFLICTING.  UPON THE ONE SIDE, THE FIRST CIRCUIT, WALKER
V. COMMISSIONER, 88 F.(2D) 61, JUDGE MORTON DISSENTING, THE FOURTH,
HALL V. COMMISSIONER, 89 F.(2D) 441, AND THE FIFTH, SIMPKINSON V.
COMMISSIONER, 89 F.(2D) 397, LEND DEFINITE SUPPORT TO THE DECISION OF
THE COURT BELOW.  UPON THE OTHER SIDE, MORE OR LESS DEFINITELY TO THE
CONTRARY, ARE TO BE FOUND THE DECISIONS OF THE THIRD CIRCUIT, JONES V.
COMMISSIONER, 31 F.(2D) 755; CUNNINGHAM V. COMMISSIONER, 67 F.(2D) 205,
THE SIXTH, LUNSFORD V. COMMISSIONER, 62 F.(2D) 740, AND THE NINTH,
BLAIR V. ROSSETER, 33 F.(2D) 286.  NO USEFUL PURPOSE WOULD BE SERVED BY
REVIEWING THESE DECISIONS; AND WE PASS TO A CONSIDERATION OF THE CASE
BEFORE US.  THE FACTS FOLLOW: 

THE AMOUNT ($10,000) RECEIVED BY PETITIONER WAS PART OF A
DISTRIBUTION, AGGREGATING OVER $600,000, MADE BY THE UNOPCO CORPORATION
AT THE INSTANCE OF ITS STOCKHOLDERS TO PETITIONER AND OTHERS WHO HAD
THERETOFORE RENDERED SERVICE AS EMPLOYEES OR IN SOME OTHER CAPACITY TO
THE UNIVERSAL OIL PRODUCTS COMPANY.  THE UNIVERSAL COMPANY WAS A
CORPORATION ORGANIZED IN 1914.  IN THE BEGINNING, ITS ONLY ASSET WAS AN
APPLICATION FOR A PATENT FOR A PROCESS FOR REFINING PETROLEUM AND
MANUFACTURING GASOLINE.  IT THEREAFTER ACQUIRED OTHER PATENTS, WHICH IT
LICENSED TO VARIOUS PRODUCERS ON A ROYALTY BASIS.  BEGINNING IN 1922,
ITS BUSINESS DEVELOPED INCREASINGLY UNTIL BY 1930 ITS ROYALTIES
AMOUNTED TO ABOUT $9,000,000.  IN JANUARY, 1931, ITS ENTIRE STOCK WAS
SOLD TO THE UNITED GASOLINE CORPORATION FOR $25,000,000.  PRIOR TO THE
SALE, AND IN CONTEMPLATION OF IT, THE UNOPCO CORPORATION HAD BEEN
ORGANIZED FOR THE PURPOSE OF ACQUIRING, AND IT DID ACQUIRE, CERTAIN
ASSETS OF THE UNIVERSAL COMPANY OF THE VALUE OF OVER $4,000,000.  UP TO
THE TIME OF THIS ACQUISITION, THE UNOPCO COMPANY HAD NEVER ENGAGED IN
ANY BUSINESS ACTIVITIES, AND THEREAFTER ITS ONLY BUSINESS WAS THE
INVESTMENT AND MANAGEMENT OF THE ASSETS THUS ACQUIRED. 

ALL OF THE FORMER STOCKHOLDERS OF THE UNIVERSAL COMPANY BECAME
STOCKHOLDERS OF THE UNOPCO, WITH THE SAME PROPORTIONATE HOLDINGS.  NONE
OF THEM, AFTER THE SALE OF THE UNIVERSAL STOCK, HELD ANY STOCK IN THE
UNIVERSAL, OR IN THE UNITED GASOLINE CORPORATION.  UNDER ITS NEW
OWNERSHIP, THE UNIVERSAL CONTINUED TO CARRY ON THE SAME BUSINESS,
RETAINING A LARGE PART OF ITS ASSETS.  A FEW DAYS AFTER THE SALE OF THE
UNIVERSAL COMPANY'S STOCK, THE FORMER STOCKHOLDERS, THEN STOCKHOLDERS
OF THE UNOPCO, HELD A MEETING AT WHICH IT WAS PROPOSED THAT THEY SHOW
THEIR APPRECIATION OF THE LOYALTY AND SUPPORT OF SOME OF THE EMPLOYEES
OF THE UNIVERSAL COMPANY BY MAKING THEM A "GIFT OR HONORARIUM."  A
RESOLUTION TO THAT EFFECT WAS ADOPTED AT A MEETING OF THE BOARD OF
DIRECTORS OF UNOPCO ON JANUARY 9, 1931, AND BY THE STOCKHOLDERS THE
FOLLOWING DAY.  BY THESE RESOLUTIONS, IT WAS RESOLVED THAT THE SUM OF
$607,500 BE APPROPRIATED, PAID AND DISTRIBUTED, AS A BONUS, TO 64
FORMER AND PRESENT EMPLOYEES, ATTORNEYS AND EXPERTS OF UNIVERSAL OIL
PRODUCTS COMPANY, IN RECOGNITION OF THE VALUABLE AND LOYAL SERVICES OF
SAID EMPLOYEES, ATTORNEYS AND EXPERTS TO SAID UNIVERSAL OIL PRODUCTS
COMPANY.  PAYMENTS RANGED IN AMOUNT FROM $100,000 TO $500.  SOME OF THE
RECIPIENTS HAD BEEN OUT OF THE EMPLOY OF THE UNIVERSAL COMPANY FOR MANY
YEARS; AND ONE OF THEM WAS THE SISTER OF AN EMPLOYEE KILLED IN AN
EXPLOSION ABOUT THE YEAR 1919. 

AT THE MEETING OF THE FORMER STOCKHOLDERS OF UNIVERSAL, THE FORMER
PRESIDENT OF THAT COMPANY, THEN PRESIDENT OF THE UNOPCO CORPORATION,
SAID THAT THEY HAD REASON TO CONGRATULATE THEMSELVES ON THEIR GREAT
GOOD FORTUNE IN THE UNIVERSAL COMPANY, WHICH STARTED WITH NOTHING AND
HAD BEEN BUILT UP IN A PHENOMENAL WAY; THAT THEY HAD PROFITED LARGELY;
THAT DURING THE YEARS WHEN THEY WERE STRUGGLING AND MOVING FORWARD THEY
HAD HAD THE LOYAL SUPPORT OF A NUMBER OF EMPLOYEES, AND HE THOUGHT IT
WOULD BE A NICE AND GENEROUS THING TO SHOW THEIR APPRECIATION BY
REMEMBERING THEM IN THE FORM OF A GIFT OR HONORARIUM.  ALL OF THE
STOCKHOLDERS ACQUIESCED, WITH THE RESULT "THAT IT WAS UNDERSTOOD THAT
WE WOULD COME FORWARD AND MAKE THESE PRESENTS OR GIFTS TO THE EMPLOYEES
THAT WERE TO BE SLATED FOR IT."  THE MATTER HAD THERETOFORE NEVER BEEN
DISCUSSED AMONG THE OLD STOCKHOLDERS; AND THIS WAS THE FIRST TIME IT
HAD BEEN BROUGHT UP FOR CONSIDERATION.  NONE OF THE RECIPIENTS HAD EVER
BEEN EMPLOYED BY UNOPCO OR BY ANY OF THE FORMER STOCKHOLDERS OF THE
UNIVERSAL.  THE PARTIES STIPULATED THAT NEITHER THE UNIVERSAL COMPANY
NOR THE UNITED "WAS UNDER ANY LEGAL OR OTHER OBLIGATION TO PAY SAID
EMPLOYEES  ...  ANY ADDITIONAL  ...  COMPENSATION" OTHER THAN THAT
WHICH THEY WERE PAID BY THE UNIVERSAL COMPANY*; AND THAT NEITHER UNOPCO
NOR ANY OF ITS STOCKHOLDERS, NOR ANY OF THE STOCKHOLDERS OF UNIVERSAL,
WAS AT ANY TIME UNDER ANY LEGAL OR OTHER OBLIGATION TO PAY ANY OF SAID
EMPLOYEES, ATTORNEYS OR EXPERTS, INCLUDING PETITIONER, ANY SALARY,
COMPENSATION OR CONSIDERATION OF ANY KIND. 

*THE REFERENCE TO ADDITIONAL COMPENSATION PAID BY THE UNIVERSAL
COMPANY PROBABLY REFERS TO A "BONUS," WHICH WAS CLEARLY COMPENSATION,
PAID BY THAT COMPANY TO ITS VARIOUS EMPLOYEES, SOME 400 IN NUMBER, IN
1930. 

IT WAS FURTHER STIPULATED - "SAID PAYMENTS WERE NOT MADE OR INTENDED
TO BE MADE BY SAID UNOPCO CORPORATION OR ANY OF ITS STOCKHOLDERS AS
PAYMENT OR COMPENSATION FOR ANY SERVICES RENDERED OR TO BE RENDERED OR
FOR ANY CONSIDERATION GIVEN OR TO BE GIVEN BY ANY OF SAID EMPLOYEES,
ATTORNEYS OR EXPERTS TO SAID UNOPCO CORPORATION OR TO ANY OF ITS
STOCKHOLDERS."  NONE OF THE THREE CORPORATIONS OR THEIR STOCKHOLDERS
EVER MADE OR CLAIMED ANY DEDUCTION FOR FEDERAL INCOME-TAX PURPOSES IN
RESPECT OF THE PAYMENTS MADE TO THE PETITIONER AND THE OTHERS. 
PAYMENTS WERE CHARGED, IN JANUARY, 1931, NOT TO EXPENSE BUT TO SURPLUS
ACCOUNT ON THE BOOKS OF THE UNOPCO COMPANY. 

THE DISTRIBUTION WAS MADE TO PETITIONER AND THE OTHER EMPLOYEES,
ATTORNEYS AND EXPERTS BY CHECKS, DELIVERED EITHER PERSONALLY OR BY
MAIL; AND IN EACH INSTANCE WITH THE ACCOMPANYING STATEMENT THAT THE
MONEYS REPRESENTED BY SUCH CHECKS WERE GIVEN AT THE INSTANCE OF THE
STOCKHOLDERS OF THE UNOPCO CORPORATION AS A GIFT AND GRATUITY, AND
WERE, THEREFORE, NOT SUBJECT TO INCOME TAX ON THE PART OF THE
RECIPIENTS. 

THE BOARD OF TAX APPEALS CONCLUDED THAT, FROM A CAREFUL CONSIDERATION
OF ALL THE EVIDENCE, "THE PAYMENTS MADE BY UNOPCO TO THE PETITIONERS
AND OTHERS WERE ADDITIONAL COMPENSATION IN CONSIDERATION OF SERVICES
RENDERED TO UNIVERSAL AND WERE NOT TAX-FREE GIFTS."  THIS, AS WE
RECENTLY HAVE POINTED OUT, IS "A CONCLUSION OF LAW OR AT LEAST A
DETERMINATION OF A MIXED QUESTION OF LAW AND FACT.  IT IS TO BE
DISTINGUISHED FROM FINDINGS OF PRIMARY, EVIDENTIARY OR CIRCUMSTANTIAL
FACTS.  IT IS SUBJECT TO JUDICIAL REVIEW AND, ON SUCH REVIEW, THE COURT
MAY SUBSTITUTE ITS JUDGMENT FOR THAT OF THE BOARD."  HELVERING V. TEX
PENN OIL CO., 300 U.S. 481, 491; HELVERING V. RANKIN, 295 U.S. 123,
131.  IF THE CONCLUSION OF THE BOARD BE REGARDED AS A DETERMINATION OF
A MIXED QUESTION OF LAW AND FACT, IT HAS, AS WE SHALL PRESENTLY SHOW,
NO SUPPORT IN THE PRIMARY AND EVIDENTIARY FACTS.  THE ULTIMATE
DETERMINATION, THEREFORE, SHOULD BE OVERTURNED, UNDER THE DOCTRINE OF
HELVERING V. RANKIN, SUPRA, AS A MATTER OF LAW. 

THE STATUTORY PROVISIONS INVOLVED ARE VERY PLAIN AND DIRECT.  SECTION
22(A) OF THE APPLICABLE REVENUE ACT (45 STAT. 791) PROVIDES THAT "GROSS
INCOME," AMONG OTHER THINGS, INCLUDES "COMPENSATION FOR PERSONAL
SERVICE, OF WHATEVER KIND AND IN WHATEVER FORM PAID."  SUBDIVISION
(B)(3), IMMEDIATELY FOLLOWING, PROVIDES THAT "THE VALUE OF PROPERTY
ACQUIRED BY GIFT, BEQUEST, DEVISE OR INHERITANCE" SHALL NOT BE INCLUDED
IN GROSS INCOME AND SHALL BE EXEMPT FROM TAXATION UNDER THE INCOME-TAX
TITLE. 

THE COURT BELOW THOUGHT THAT PAYMENTS SUCH AS ARE HERE INVOLVED "MAY
BE AT ONCE 'GIFTS' UNDER SEC. 22, SUBDIVISION (B)(3) AND 'COMPENSATION
FOR PERSONAL SERVICE' UNDER SUBDIVISION (A)."  SUCH A VIEW OF THE
STATUTE IS INADMISSIBLE AND CONFUSING.  THE STATUTE DEFINITELY
DISTINGUISHES BETWEEN COMPENSATION ON THE ONE HAND AND GIFTS ON THE
OTHER HAND, THE FORMER BEING TAXABLE AND THE LATTER FREE FROM
TAXATION.  THE TWO TERMS ARE, AND WERE MEANT TO BE, MUTUALLY EXCLUSIVE;
AND A BESTOWAL OF MONEY CANNOT, UNDER THE STATUTE, BE BOTH A GIFT AND A
PAYMENT OF COMPENSATION.  THE COURT BELOW WENT ON TO SAY THAT DECISIONS
LIKE OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716, PROVED THAT
PAYMENTS COULD BE BOTH GIFTS AND COMPENSATION FOR PERSONAL SERVICES. 
THE MOST CASUAL READING OF THAT CASE SHOWS THAT IT IS AUTHORITY FOR NO
SUCH DOCTRINE.  THERE, AN EMPLOYER HAD PAID THE INCOME TAX ASSESSED
UPON THE SALARY OF AN EMPLOYEE.  THE EMPLOYEE HAD ENTERED UPON THE
DISCHARGE OF HIS DUTIES FOR THE YEAR IN QUESTION UNDER AN EXPRESS
AGREEMENT TO THAT EFFECT.  QUITE EVIDENTLY THE PAYMENT, SO AGREED UPON
IN ADVANCE, WAS IN CONSIDERATION OF SERVICES TO BE RENDERED AND IN NO
SENSE A GIFT.  IT WAS A PART OF THE EMPLOYEE'S COMPENSATION; AND THE
COURT SO HELD.  THE IDEA THAT IT COULD BE A GIFT IN ANY SENSE WAS
DEFINITELY REJECTED.  WE SAID (P. 730), "NOR CAN IT BE ARGUED THAT THE
PAYMENT OF THE TAX IN NO. 130 WAS A GIFT.  THE PAYMENT FOR SERVICES,
EVEN THOUGH ENTIRELY VOLUNTARY, WAS NEVERTHELESS COMPENSATION WITHIN
THE STATUTE." 

IF THE SUM OF MONEY UNDER CONSIDERATION WAS A GIFT AND NOT
COMPENSATION, IT IS EXEMPT FROM TAXATION AND CANNOT BE MADE TAXABLE BY
RESORT TO ANY FORM OF SUBCLASSIFICATION.  IF IT BE IN FACT A GIFT, THAT
IS AN END OF THE MATTER; AND INQUIRY WHETHER IT IS A GIFT OF ONE SORT
OR ANOTHER IS IRRELEVANT.  THIS IS NECESSARILY TRUE, FOR SINCE ALL
GIFTS ARE MADE NON-TAXABLE, THERE CAN BE NO SUCH THING UNDER THE
STATUTE AS A TAXABLE GIFT.  A CLAIM THAT IT IS A GIFT PRESENTS THE SOLE
AND SIMPLE QUESTION WHETHER ITS DESIGNATION AS SUCH IS GENUINE OR
FICTITIOUS - THAT IS TO SAY, WHETHER, THOUGH CALLED A GIFT, IT IS IN
REALITY COMPENSATION.  TO DETERMINE THAT QUESTION WE TURN TO THE FACTS,
WHICH WE HAVE ALREADY DETAILED. 

FROM THESE WE LEARN THAT THE RECIPIENTS OF THE BOUNTY HERE IN
QUESTION NEVER WERE EMPLOYEES OF THE UNOPCO COMPANY, OR OF ANY OF ITS
STOCKHOLDERS.  THE UNIVERSAL COMPANY, IN WHOSE EMPLOY SOME OF THE
RECIPIENTS THEN WERE, WAS AT THE TIME IN NO WAY CONNECTED WITH THE
UNOPCO COMPANY OR ANY OF ITS STOCKHOLDERS.  SOME OF THE RECIPIENTS HAD
NOT BEEN IN THE EMPLOY EVEN OF THE UNIVERSAL COMPANY FOR MANY YEARS,
AND ONE OF THEM NEVER HAD BEEN AN EMPLOYEE.  NEITHER THE UNOPCO COMPANY
NOR ANY ONE ELSE WAS UNDER ANY OBLIGATION, LEGAL OR OTHERWISE, TO PAY
ANY OF THE RECIPIENTS, INCLUDING PETITIONER, ANY SALARY, COMPENSATION
OR CONSIDERATION OF ANY KIND.  SUCH IS THE EXPRESS STIPULATION OF THE
PARTIES.  AND MOST SIGNIFICANT IS THE FURTHER STIPULATED FACT THAT THE
DISBURSEMENTS WERE NOT MADE OR INTENDED TO BE MADE FOR ANY SERVICES
RENDERED OR TO BE RENDERED OR FOR ANY CONSIDERATION GIVEN OR TO BE
GIVEN BY ANY OF SAID EMPLOYEES, ATTORNEYS OR EXPERTS TO SAID UNOPCO
CORPORATION OR TO ANY OF ITS STOCKHOLDERS.  IF THE DISBURSEMENTS HAD
BEEN MADE BY THE UNIVERSAL COMPANY, OR BY STOCKHOLDERS OF THAT COMPANY
STILL INTERESTED IN ITS SUCCESS AND IN THE MAINTENANCE OF THE GOOD WILL
AND LOYALTY OF ITS EMPLOYEES, THERE MIGHT BE GROUND FOR THE INFERENCE
THAT THEY WERE PAYMENTS OF ADDITIONAL COMPENSATION.  COMPARE NOEL V.
PARROTT, 15 F.(2D) 669.  BUT SUCH AN INFERENCE, EVEN UPON ONE OF THESE
SUPPOSITIONS, WELL MIGHT STRAIN THE REALITIES IN THE LIGHT OF THE
FOREGOING FACTS.  HOWEVER THAT MAY BE, THE DISBURSEMENTS HERE WERE
AUTHORIZED AND THE BURDEN BORNE BY PERSONS WHO WERE THEN STRANGERS TO
THE UNIVERSAL COMPANY AND ITS EMPLOYEES, UNDER NO OBLIGATION, LEGAL OR
OTHERWISE, TO THAT COMPANY OR TO ANY OF ITS PRESENT OR FORMER
EMPLOYEES.  THERE IS ENTIRELY LACKING THE CONSTRAINING FORCE OF ANY
MORAL OR LEGAL DUTY AS WELL AS THE INCENTIVE OF ANTICIPATED BENEFIT OF
ANY KIND BEYOND THE SATISFACTION WHICH FLOWS FROM THE PERFORMANCE OF A
GENEROUS ACT.  THE INTENT IS SHOWN BY THE APPEAL MADE AT THE
STOCKHOLDERS' MEETING TO THE EFFECT THAT IT WOULD BE A NICE AND
GENEROUS THING FOR THESE FORMER STOCKHOLDERS OF THE UNIVERSAL TO SHOW
THEIR APPRECIATION OF THE PAST LOYALTY OF THAT COMPANY'S EMPLOYEES BY
REMEMBERING THEM IN THE FORM OF A "GIFT OR HONORARIUM," AND BY THE
COMMON UNDERSTANDING THEN REACHED THAT THE STOCKHOLDERS WOULD MAKE THE
SUGGESTED "PRESENTS OR GIFTS" TO THESE EMPLOYEES.  QUITE EVIDENTLY,
NONE OF THESE STOCKHOLDERS HAD THE SLIGHTEST NOTION THAT A PAYMENT OF
COMPENSATION WAS TO BE MADE.    IN SUM, THEN, THE CASE COMES TO THIS:
THE STOCKHOLDERS OF THE UNOPCO, HAVING AT THE TIME NO CONNECTION WITH
THE UNIVERSAL COMPANY, BUT REJOICING IN THE FACT OF THEIR OWN GREAT
GOOD FORTUNE, AND MINDFUL OF THE FORMER LOYAL SUPPORT OF A NUMBER OF
EMPLOYEES OF THE UNIVERSAL COMPANY, AND DESIRING TO REMEMBER THEM "IN
THE FORM OF A GIFT OR HONORARIUM," RESOLVED TO MAKE THROUGH THE UNOPCO
COMPANY THE DISTRIBUTION IN QUESTION.  IN DOING SO, THEY WERE MOVED, AS
JUDGE SWAN SAID IN HIS DISSENTING OPINION BELOW, TO AN ACT OF
"SPONTANEOUS GENEROSITY."  WE AGREE WITH THIS DISSENTING OPINION OF
JUDGE SWAN, AND THE DISSENTING OPINION OF JUDGE MORTON IN WALKER V.
COMMISSIONER, SUPRA, AS STATING THE CORRECT VIEW OF THE MATTER. 

THE ONLY FACTS WHICH EVEN SEEM TO MILITATE AGAINST THIS VIEW ARE (1)
THAT THE UNOPCO STOCKHOLDERS HAD BENEFITED BY THE FORMER SERVICES OF
THE RECIPIENTS; (2) THAT THE STOCKHOLDERS AT THEIR MEETING DESCRIBED
THE PAYMENT AS A GIFT OR "HONORARIUM"; AND (3) THAT THE RESOLUTIONS
AUTHORIZED THE PAYMENT AS A "BONUS  ...  IN RECOGNITION OF THE VALUABLE
AND LOYAL SERVICES" OF THE EMPLOYEES, ETC. 

1.  BECAUSE THE UNOPCO STOCKHOLDERS HAD BENEFITED BY THE PAST
SERVICES OF THE RECIPIENTS, IT BY NO MEANS FOLLOWS THAT THE
DISTRIBUTION IN QUESTION WAS NOT A GRATUITY.  IT NOWHERE APPEARS IN THE
RECORD THAT FULL COMPENSATION HAD NOT BEEN MADE FOR THESE SERVICES. 
THERE WOULD SEEM TO BE A NATURAL INFERENCE TO THE CONTRARY; AND THE
INFERENCE IS MADE DETERMINATE BY THE STIPULATED FACT THAT NO ONE WAS
UNDER ANY OBLIGATION, LEGAL OR OTHERWISE (AND THIS WOULD INCLUDE A
MORAL OBLIGATION, HOWEVER SLIGHT) "TO PAY ANY ADDITIONAL
COMPENSATION."  THERE IS NO GROUND FOR SAYING THAT THE BENEFIT RECEIVED
AND THE COMPENSATION THEN PAID FOR IT WERE NOT EQUIVALENTS. 

2.  IT IS SAID THAT THE WORD "HONORARIUM" ALWAYS DENOTES A
COMPENSATORY PAYMENT.  WITHOUT AGREEING TO THIS BROAD GENERALIZATION,
IT IS ENOUGH TO SAY THAT THE WORD IS NOT HERE USED BY ITSELF, BUT
COUPLED WITH THE WORD "GIFT" IN THE PHRASE "GIFT OR HONORARIUM." 
PRESUMPTIVELY, THE USER OF THE PHRASE MUST HAVE KNOWN THAT THE WORD
"GIFT" DID NOT INCLUDE A COMPENSATORY PAYMENT, AND IT IS HARDLY TO BE
SUPPOSED THAT HE WOULD CONSCIOUSLY NULLIFY THAT WORD BY THE IMMEDIATE
USE OF ANOTHER MEANING THE OPPOSITE.  THE PHRASE WAS USED IN AN
INFORMAL SPEECH AT THE STOCKHOLDERS' MEETING MADE BY THE PRESIDENT OF
THE UNOPCO COMPANY.  THE WHOLE TONE OF THE MEETING INDICATES THAT THE
INTENTION WAS TO MAKE GIFTS IN RECOGNITION OF, NOT PAYMENTS FOR, FORMER
SERVICES.  THE CONCLUSION IN WHICH THE STOCKHOLDERS ACQUIESCED WAS THAT
THEY WOULD COME FORWARD AND MAKE THESE "PRESENTS OR GIFTS" TO THE
EMPLOYEES.  IN THE LIGHT OF ALL THE CIRCUMSTANCES, THE ABSENCE OF MORAL
OR OTHER OBLIGATION AND OF ANY EXPECTATION OF FUTURE BENEFIT, IT IS
REASONABLE TO CONCLUDE THAT THE WORD "HONORARIUM," IF THE COURT BELOW
CORRECTLY DEFINED IT, WAS LOOSELY AND INACCURATELY USED. 

3.  THE RESOLUTIONS, WHICH EMPLOY THE WORD "BONUS," WERE ADOPTED TO
CARRY INTO EFFECT THE WILL OF THE STOCKHOLDERS EXPRESSED AT THEIR
MEETING.  WHAT OCCURRED AT THAT MEETING, AS WE HAVE ALREADY SAID,
INDICATED THEIR CLEAR INTENTION TO MAKE GIFTS.  AND SINCE INTENTION
MUST GOVERN, WE MUST CONSIDER THE WORD USED IN THE LIGHT OF THE
INTENTION.  A SIMILAR QUESTION WAS BEFORE THE COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA IN LEVEY V. HELVERING, 62 APP. D.C. 354; 68 F.(2D)
401.  THERE, THE CORPORATE RESOLUTION CHARACTERIZED THE PAYMENTS TO BE
MADE TO REIMBURSE CERTAIN OFFICERS FOR INCOME TAXES PAID ON SALARIES AS
"GIFTS."  BUT THE COURT HELD THIS CHARACTERIZATION DID NOT SETTLE THE
MATTER.  IT REVIEWED THE FACTS AND REACHED THE CONCLUSION THAT IN THE
LIGHT OF THEM WHAT WAS INTENDED WAS NOT A GIFT BUT A BONUS, AND DECIDED
THE CASE IN ACCORDANCE WITH THAT VIEW.  IN OTHER WORDS, THE THING THAT
WAS DECIDED UPON AND INTENDED, IN THAT CASE AS IN THIS CASE, WAS
MISDESCRIBED IN THE RESOLUTIONS TO CARRY THE DECISION AND INTENTION
INTO EFFECT.  IN ROGERS V. HILL, 289 U.S. 582, 591-592, WE HELD,
FOLLOWING THE DISSENTING OPINION IN THE COURT BELOW, THAT A BONUS
PAYMENT HAVING NO RELATION TO THE VALUE OF SERVICES FOR WHICH IT IS
GIVEN IS IN REALITY A GIFT IN PART.  CERTAINLY, WHERE ALL THE FACTS AND
CIRCUMSTANCES IN THE CASE, INCLUDING THE EXPRESS STIPULATION OF THE
PARTIES, CLEARLY SHOW THE MAKING AND THE INTENT TO MAKE A GIFT, IT
CANNOT BE CONVERTED INTO A PAYMENT FOR SERVICES BY INACCURATELY
DESCRIBING IT, IN THE CONSUMMATING RESOLUTIONS, AS A BONUS. 

SOME STRESS IS LAID ON THE RECITAL TO THE EFFECT THAT THE BOUNTY IS
BESTOWED IN RECOGNITION OF PAST LOYAL SERVICES.  BUT THIS RECITAL
AMOUNTS TO NOTHING MORE THAN THE ACKNOWLEDGMENT OF AN HISTORIC FACT AS
A REASON FOR MAKING THE GIFTS.  A GIFT IS NONE THE LESS A GIFT BECAUSE
INSPIRED BY GRATITUDE FOR THE PAST FAITHFUL SERVICE OF THE RECIPIENT. 
COMPARE HOBART'S ADMR.  V. VAIL, 80 VT. 152; 66 ATL. 820.  JUDGMENT
REVERSED. 

MR. JUSTICE BRANDEIS, MR. JUSTICE STONE, MR. JUSTICE CARDOZO, AND MR.
JUSTICE BLACK, DISSENTING. 

A PAYMENT RECEIVED AS COMPENSATION FOR SERVICES IS TAXABLE AS INCOME,
THOUGH MADE WITHOUT CONSIDERATION, AND HENCE FOR MANY PURPOSES A GIFT. 
OLD COLONY TRUST CO. V. COMMISSIONER, 279 U.S. 716, 730.  TO HOLD, AS
THE PREVAILING OPINION SEEMS TO DO, THAT EVERY PAYMENT WHICH IN ANY
ASPECT IS A GIFT IS PERFORCE NOT COMPENSATION, AND HENCE RELIEVED OF
ANY TAX, IS TO WORK HAVOC WITH THE LAW.  A LARGE BODY OF DECISIONS,
WHOSE PROVENANCE IS OLD COLONY TRUST CO. V. COMMISSIONER, WOULD BE
ANNULLED BY SUCH A TEST.  SEE E.G. WEAGANT V. BOWERS, 57 F.(2D) 679;
FISHER V. COMMISSIONER, 59 F.(2D) 192; BASS V. HAWLEY, 62 F.(2D) 721;
UNITED STATES V. MCCORMICK, 67 F.(2D) 867; BOTCHFORD V. COMMISSIONER,
81 F.(2D) 914; SCHUMACHER V. UNITED STATES, 55 F.(2D) 1007.  CF. LUCAS
V. OX FIBRE BRUSH CO., 281 U.S. 115.  THEIR TEACHING MAKES IT PLAIN
THAT THE CATEGORIES OF "GIFT" AND "COMPENSATION" ARE NOT ALWAYS
MUTUALLY EXCLUSIVE, BUT AT TIMES CAN OVERLAP.  WHAT CONTROLS IS NOT THE
PRESENCE OR ABSENCE OF CONSIDERATION.  WHAT CONTROLS IS THE INTENTION
WITH WHICH PAYMENT, HOWEVER VOLUNTARY, HAS BEEN MADE.  HAS IT BEEN MADE
WITH THE INTENTION THAT SERVICES RENDERED IN THE PAST SHALL BE REQUITED
MORE COMPLETELY, THOUGH FULL ACQUITTANCE HAS BEEN GIVEN?  IF SO, IT
BEARS A TAX.  HAS IT BEEN MADE TO SHOW GOOD WILL, ESTEEM, OR KINDLINESS
TOWARD PERSONS WHO HAPPEN TO HAVE SERVED, BUT WHO ARE PAID WITHOUT
THOUGH TO MAKE REQUITAL FOR THE SERVICE?  IF SO, IT IS EXEMPT. 

WE THINK THERE WAS A QUESTION OF FACT WHETHER PAYMENT TO THIS
PETITIONER WAS MADE WITH ONE INTENTION OR THE OTHER.  A FINDING EITHER
IN HIS FAVOR OR AGAINST HIM WOULD HAVE HAD A FAIR BASIS IN THE
EVIDENCE.  IT WAS FOR THE TRIERS OF THE FACTS TO SEEK AMONG COMPETING
AIMS OR MOTIVES THE ONES THAT DOMINATED CONDUCT.  PERHAPS, IF SUCH A
FUNCTION HAD BEEN OURS, WE WOULD HAVE DRAWN THE INFERENCE FAVORING A
GIFT.  THAT IS NOT ENOUGH.  IF THERE WAS OPPORTUNITY FOR OPPOSING
INFERENCES, THE JUDGMENT OF THE BOARD CONTROLS.  ELMHURST CEMETERY CO.
V. COMMISSIONER, 300 U.S. 37; HELVERING V. TEX-PENN OIL CO., 300 U.S.
481. 
..END :











UNITED STATES V. WILLIAMS, 302 U.S. 46 


NO. 11.  ARGUED OCTOBER 15, 1937.  - DECIDED NOVEMBER 8, 1937.  - 86
F.(2D) 746, REVERSED. 


1.  CONGRESS MAY ACCEPT, OR REQUIRE, THE MILITARY SERVICES OF MINORS,
WITH OR WITHOUT THE CONSENT OF THEIR PARENTS.  P. 48. 

2.  UNDER 34 U.S.C. SEC. 161 MINORS BETWEEN THE AGES OF 14 AND 18
YEARS ARE NOT ACCEPTED FOR ENLISTMENT IN THE NAVY WITHOUT THEIR
PARENTS' CONSENT; BUT THE STATUTE DOES NOT CONFER UPON OR LEAVE WITH
THE PARENTS ANY RIGHT TO CONDITION CONSENT TO THEIR SONS' ENLISTMENT. 
P. 49. 

3.  NO ACT OF CONGRESS PERMITS ENLISTMENT OF MINORS UPON CONDITION OR
UPON THE QUALIFIED CONSENT OF PARENTS, NOR DOES ANY ACT AUTHORIZE
RECRUITING OFFICERS TO BIND THE UNITED STATES TO CARRY, OR TO REQUIRE
AN ENLISTED MAN TO CARRY, WAR RISK INSURANCE FOR HIS OWN PROTECTION OR
FOR THE BENEFIT OF ANY PERSON.  P. 50. 

4.  PARENTS CONSENTED TO THE ENLISTMENT OF THEIR SON ON CONDITION
THAT HE CARRY WAR RISK INSURANCE OF SPECIFIED AMOUNT IN BEHALF OF HIS
MOTHER.  BEFORE HIS DEATH, IN THE SERVICE, THE SON HAD TAKEN OUT AND
LATER HAD CANCELED, SUCH INSURANCE.  HELD THAT THE CONDITION DID NOT
BIND THE UNITED STATES; THAT THE SON HAD A RIGHT UNDER THE WAR RISK
INSURANCE ACT TO CANCEL THE INSURANCE; AND THAT THE MOTHER HAD NO CAUSE
OF ACTION AGAINST THE UNITED STATES.  P. 50. 

UNITED STATES V. WILLIAMS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 301 U.S. 673, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST THE UNITED STATES ON A WAR-RISK INSURANCE POLICY. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BROUGHT THIS SUIT IN THE FEDERAL COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS TO RECOVER WAR RISK INSURANCE ON THE LIFE OF HER
MINOR SON, BENSON CHARLES WILLIAMS, WHO DIED WHILE SERVING IN THE
NAVY.  TRIAL BY JURY HAVING BEEN WAIVED, THE COURT MADE FINDINGS OF
FACT, STATED ITS CONCLUSIONS OF LAW AND GAVE JUDGMENT FOR THE
PLAINTIFF.  THE CIRCUIT COURT OF APPEALS AFFIRMED.  86 F.(2D) 746. 

THE FINDINGS SHOW:  PLAINTIFF'S SON WAS BORN AUGUST 27, 1901, AND
JANUARY 13, 1919, ENLISTED IN THE NAVY FOR THE PERIOD OF HIS MINORITY. 
AT THAT TIME DEFENDANT ISSUED A CERTIFICATE OF TERM INSURANCE BINDING
ITSELF, IN CASE OF HIS DEATH WHILE INSURED, TO PAY PLAINTIFF $10,000 IN
240 EQUAL MONTHLY INSTALLMENTS; HE DIRECTED DEFENDANT TO DEDUCT
PREMIUMS FROM HIS PAY; HIS PARENTS EXECUTED A WRITING BY WHICH THEY
CONSENTED TO THE ENLISTMENT, RELEASED THEIR CLAIM TO HIS PAY, APPROVED
THE TRANSACTIONS BETWEEN HIM AND DEFENDANT AND DECLARED THAT THEIR
CONSENT WAS GIVEN ON THE CONDITION THAT, DURING ENLISTMENT, HE WOULD
CARRY WAR RISK INSURANCE IN THE SUM OF $10,000 IN BEHALF OF HIS
MOTHER.  JULY 20, 1920, HE MADE WRITTEN REQUEST THAT HIS INSURANCE BE
TERMINATED.  THEREAFTER, DEFENDANT MADE NO DEDUCTIONS FROM HIS PAY ON
ACCOUNT OF PREMIUMS.  THE INSURED DIED JUNE 30, 1921.  AT ALL TIMES
UNTIL HIS DEATH HIS UNCOLLECTED PAY WAS MORE THAN ENOUGH TO KEEP THE
INSURANCE IN FORCE.  UPON LEARNING OF HER SON'S DEATH PLAINTIFF
DEMANDED PAYMENT OF THE INSURANCE.  WHEN NOTIFIED BY DEFENDANT OF HER
SON'S CANCELATION SHE REPUDIATED IT, OFFERED TO PAY ALL PREMIUMS,
REITERATED HER CLAIM AS BENEFICIARY AND, DEFENDANT HAVING REJECTED IT,
BROUGHT THIS SUIT. 

THE CIRCUIT COURT OF APPEALS REASONED AS FOLLOWS:  PLAINTIFF'S
CONSENT WAS ESSENTIAL TO THE ENLISTMENT AND WAS GIVEN ON CONDITION THAT
THE INSURANCE BE MAINTAINED.  THE MINOR AND DEFENDANT COULD NOT SET THE
CONDITION AT NAUGHT.  DEFENDANT COULD NOT AVAIL ITSELF OF HIS SERVICES,
TO WHICH IT WAS ENTITLED ONLY IF HIS MOTHER SO AGREED, AND IGNORE THE
CONDITION UPON WHICH THE AGREEMENT WAS OBTAINED.  DEFENDANT WAS CHARGED
WITH NOTICE OF PLAINTIFF'S INTEREST AS BENEFICIARY AND, THE CANCELATION
NOT HAVING BEEN RATIFIED BY HER, DEFENDANT WAS BOUND TO COLLECT THE
PREMIUMS AND MAINTAIN THE INSURANCE BY DEDUCTIONS FROM THE PAY OF THE
INSURED.  ON THAT BASIS THE COURT CONCLUDED THAT THE INSURANCE REMAINED
IN FORCE AND THAT PLAINTIFF IS ENTITLED TO RECOVER. 

THE OPINION STRONGLY PUTS THE CONSIDERATIONS THAT MAKE IN FAVOR OF
PLAINTIFF'S CLAIM, BUT NEGLECTS THE DISTINCTION BETWEEN PRIVATE
EMPLOYMENT OF MINORS AND THEIR SERVICE IN ARMY OR NAVY, AND FAILS TO
GIVE EFFECT TO THE LAW APPLICABLE TO CONTRACTS OF ENLISTMENT AND TO THE
TERMS UPON WHICH THE GOVERNMENT GRANTED THE WAR RISK INSURANCE HERE IN
QUESTION.  IN VIRTUE OF ITS POWER TO RAISE AND SUPPORT ARMIES, TO
PROVIDE AND MAINTAIN A NAVY AND TO MAKE RULES FOR THE GOVERNMENT OF
LAND AND NAVAL FORCES, THE CONGRESS MAY REQUIRE MILITARY SERVICE OF
ADULTS AND MINORS ALIKE.  FN1 THE POWER OF THE UNITED STATES MAY BE
EXERTED TO SUPERSEDE PARENTS' CONTROL AND THEIR RIGHT TO HAVE THE
SERVICES OF MINOR SONS WHO ARE WANTED AND FIT FOR MILITARY SERVICE. 
FN2  AND THE CONGRESS MAY CONFER UPON MINORS THE PRIVILEGE OF SERVING
IN LAND OR NAVAL FORCES, AUTHORIZE THEM TO ENLIST, OR DRAFT THEM UPON
SUCH TERMS AS IT MAY DEEM EXPEDIENT AND JUST.  FN3 

THE STATUTE UNDER WHICH PLAINTIFF'S SON WAS ACCEPTED DECLARES THAT
MINORS BETWEEN AGES OF 14 AND 18 YEARS SHALL NOT BE ENLISTED IN THE
NAVY WITHOUT THE CONSENT OF THEIR PARENTS.  FN4  IT MEANS THAT, WHILE
MINORS OVER 18 MAY ENLIST WITHOUT PARENTAL PERMISSION, THE GOVERNMENT
ELECTS NOT TO TAKE THOSE BETWEEN 14 AND 18 UNLESS THEIR PARENTS ARE
WILLING TO HAVE THEM GO.  IT IS A DETERMINATION BY CONGRESS THAT MINORS
OVER 14 HAVE CAPACITY TO MAKE CONTRACTS FOR SERVICE IN THE NAVY.  FN5
AND IT IS IN HARMONY WITH RULINGS UNDER THE COMMON LAW TO THE EFFECT
THAT ENLISTMENT OF A MINOR FOR MILITARY SERVICE IS NOT VOIDABLE BY HIM
OR HIS PARENTS.  FN6  ENLISTMENT IS MORE THAN A CONTRACT; IT EFFECTS A
CHANGE OF STATUS.  FN7  IT OPERATES TO EMANCIPATE MINORS AT LEAST TO
THE EXTENT THAT BY ENLISTMENT THEY BECOME BOUND TO SERVE SUBJECT TO
RULES GOVERNING ENLISTED MEN AND ENTITLED TO HAVE AND FREELY TO DISPOSE
OF THEIR PAY.  FN8  UPON ENLISTMENT OF PLAINTIFF'S SON, AND UNTIL HIS
DEATH, HE BECAME ENTIRELY SUBJECT TO THE CONTROL OF THE UNITED STATES
IN RESPECT OF ALL THINGS PERTAINING TO OR AFFECTING HIS SERVICE. 

THE STATUTE DOES NOT CONFER UPON OR LEAVE WITH THE PARENTS ANY RIGHT
TO CONDITION CONSENT TO THEIR SONS' ENLISTMENT.  NO ACT OF CONGRESS
PERMITS ENLISTMENT OF MINORS UPON CONDITION OR UPON THE QUALIFIED
CONSENT OF PARENTS, NOR DOES ANY ACT AUTHORIZE RECRUITING OFFICERS TO
BIND THE UNITED STATES TO CARRY, OR TO REQUIRE AN ENLISTED MAN TO
CARRY, WAR RISK INSURANCE FOR HIS OWN PROTECTION OR FOR THE BENEFIT OF
ANY PERSON.  IT FOLLOWS THAT DEFENDANT WAS NOT BOUND BY THE CONDITION
ON WHICH THE TRIAL COURT FOUND THAT THE PARENTS CONSENTED TO THE
ENLISTMENT OF THEIR MINOR SON.  FN9 

WAR RISK INSURANCE WAS MADE AVAILABLE TO THOSE IN ACTIVE MILITARY
SERVICE FOR THE GREATER PROTECTION OF THEMSELVES AND THEIR DEPENDENTS. 
FN10  BY THE INSURANCE CONTRACT, OF WHICH APPLICABLE PROVISIONS OF
STATUTES AND REGULATIONS CONSTITUTE A PART,  FN11 THE INSURED MINOR WAS
AUTHORIZED TO ALLOT A PART OF HIS PAY FOR THE PAYMENT OF PREMIUMS,
FN12  TO CHANGE BENEFICIARIES WITHOUT THEIR CONSENT  FN13  AND TO
CANCEL THE INSURANCE IN WHOLE OR IN PART.  FN14  IT FOLLOWS THAT THE
CANCELATION WAS VALID AND PLAINTIFF IS NOT ENTITLED TO RECOVER.  FN15
REVERSED. 

FN1 TARBLE'S CASE (1871) 13 WALL.  397, 408.  IN RE GRIMLEY (1890)
137 U.S. 147, 153.  SELECTIVE DRAFT LAW CASES (1918) 245 U.S. 366, 377
378, 386.  HAMILTON V. REGENTS (1934) 293 U.S. 245, 262-264.  UNITED
STATES V. BLAKENEY (1847) 3 GRATT.  405, 408.  LANAHAN V. BIRGE (1862)
30 CONN. 438. 

FN2  UNITED STATES V. BAINBRIDGE (1816) FED. CAS. NO. 14,497, P. 950,
PER STORY, J. COMMONWEALTH V. GAMBLE (1824) 11 SERG.  & R. 93, 94, PER
GIBSON, J. COM. EX REL. ENGLE V. MORRIS (1852) 1 PHILA.  381.  IN THE
MATTER OF BESWICK (1863) 25 HOW.  PR. 149, 151.  HALLIDAY V. MILLER
(1887) 29 W. VA. 424, 439; 1 S.E. 821. 

FN3  UNITED STATES V. BAINBRIDGE (1816) FED. CAS. NO. 14,497, P.
950.  IN RE RILEY (1867) FED. CAS. NO. 11,834, P. 797, PER BLATCHFORD,
D.J. IN RE DAVISON (1884) 21 FED. 618, 622.  IN RE COSENOW (1889) 37
FED. 668, 670, PER HENRY BILLINGS BROWN, D.J.  UNITED STATES V.
BLAKENEY (1847) 3 GRATT.  405, 416.  IN RE GREGG (1862) 15 WIS. 531,
532. 

FN4  "NO MINOR UNDER THE AGE OF FOURTEEN YEARS SHALL BE ENLISTED IN
THE NAVAL SERVICE; AND MINORS BETWEEN THE AGE OF FOURTEEN AND EIGHTEEN
YEARS SHALL NOT BE ENLISTED FOR THE NAVAL SERVICE WITHOUT THE CONSENT
OF THEIR PARENTS OR GUARDIANS."  34 U.S.C., SEC. 161.  (SEE R.S., SECS.
1419, 1420, AS AMENDED BY ACTS:  MAY 12, 1879, C. 5, 21 STAT. 3;
FEBRUARY 23, 1881, C. 73, SEC. 2, 21 STAT. 338; AUGUST 22, 1912, C.
336, SEC. 2, 37 STAT. 356.) 

FN5  IN RE MORRISSEY (1890) 137 U.S. 157, 159.  IN RE DAVISON (1884)
21 FED. 618, 623.  IN RE GREGG (1862) 15 WIS. 531, 533.  UNITED STATES
V. BLAKENEY (1847) 3 GRATT.  405, 414-415.  UNITED STATES V. BAINBRIDGE
(1816) FED. CAS. NO. 14,497, P. 951. 

FN6  IN RE MORRISSEY (1890) 137 U.S. 157, 159.  UNITED STATES V.
BLAKENEY (1847) 3 GRATT.  405, 413. 

FN7  IN RE GRIMLEY (1890) 137 U.S. 147, 151.  IN RE MORRISSEY (1890)
137 U.S. 157, 159. 

FN8  IN RE MORRISSEY (1890) 137 U.S. 157, 159-160.  IN RE MILLER
(1902) 114 FED. 838, 842-843.  UNITED STATES V. REAVES (1903) 126 FED.
127, 130.  UNITED STATES V. BAINBRIDGE (1816) FED. CAS. NO. 14,497, P.
951.  BAKER V. BAKER (1868) 41 VT. 55, 57.  HALLIDAY V. MILLER (1887)
29 W. VA. 424, 439; 1 S.E. 821.  GAPEN V. GAPEN (1895) 41 W. VA. 422,
425; 23 S.E. 579.  IROQUOIS IRON CO. V. INDUSTRIAL COM. (1920) 294 ILL.
106, 109; 128 N.E. 289.  1 SCHOULER, DOMESTIC RELATIONS (6TH ED.) 
SEC.  754, P. 820. 

FN9  UTAH POWER & LIGHT CO. V. UNITED STATES (1917) 243 U.S. 389, 408
409.  WILBER NAT. BANK V. UNITED STATES (1935) 294 U.S. 120, 123-124. 

FN10  WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, SEC. 400, 40 STAT.
409. 

FN11  WHITE V. UNITED STATES (1926) 270 U.S. 175.  LYNCH V. UNITED
STATES (1934) 292 U.S. 571, 577. 

FN12  WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, SEC. 202, 40 STAT.
403. 

FN13  ID., SEC. 402, 40 STAT. 409:  "...  SUBJECT TO REGULATIONS, THE
INSURED SHALL AT ALL TIMES HAVE THE RIGHT TO CHANGE THE BENEFICIARY OR
BENEFICIARIES OF SUCH INSURANCE WITHOUT THE CONSENT OF SUCH BENEFICIARY
OR BENEFICIARIES, BUT ONLY WITHIN THE CLASSES HEREIN PROVIDED  ..." 
BULLETIN NO. 1, PROMULGATED OCTOBER 15, 1917:  "THE INSURED MAY AT ANY
TIME, SUBJECT TO THE REGULATIONS OF THE BUREAU, CHANGE THE BENEFICIARY
OR BENEFICIARIES TO ANY PERSON OR PERSONS WITHIN THE CLASSES PERMITTED
BY THE ACT, WITHOUT THE CONSENT OF THE BENEFICIARY OR BENEFICIARIES." 
REGULATIONS AND PROCEDURE, U.S. VETERANS' BUREAU, 1928(WASHINGTON,
1930) PART 2, PP. 1235, 1237. 

FN14  T.D. 48 W.R. PROVIDES:  "THE YEARLY RENEWABLE TERM INSURANCE
SHALL  ...  LAPSE AND TERMINATE  ...  (C) UPON WRITTEN REQUEST  ...  TO
THE BUREAU  ...  FOR CANCELATION OF THE INSURANCE, IN WHOLE OR IN PART,
AND CORRESPONDING CESSATION OR REDUCTION OF THE PAYMENT OF PREMIUMS
..."  REGULATIONS AND PROCEDURE, U.S. VETERANS' BUREAU,
1928(WASHINGTON, 1930) PART 1, PP. 19-20. 

FN15  WHITE V. UNITED STATES (1926) 270 U.S. 175, 180.  VON DER LIPPI
LIPSKI V. UNITED STATES (1925) 4 F.(2D) 168, 169.  UNITED STATES V.
STERLING (1926) 12 F.(2D) 921, 922.  LEWIS V. UNITED STATES (1932) 56
F.(2D) 563, 564.  IRONS V. SMITH (1933) 62 F.(2D) 644, 646. 
..END :


















PENNSYLVANIA V. ASHE, 302 U.S. 51 


NO. 25.  ARGUED OCTOBER 21, 22, 1937.  - DECIDED NOVEMBER 8, 1937.  -
325 PA. 305 - 188 ATL. 841, ILL. 547 - 5 N.E. (2D) 84, AFFIRMED. 


1.  THE LAW HAS LONG RECOGNIZED A RELATION BETWEEN PUNISHMENT FOR
BREACH OF PRISON AND THE OFFENSE FOR WHICH THE PRISONER IS HELD, AND IT
HAS MORE SEVERELY PUNISHED PRISON-BREAKING BY ONE UNDERGOING
IMPRISONMENT FOR GRIEVOUS CRIME THAN IF DONE BY ONE HELD FOR A LESSER
OFFENSE.  P. 53. 

2.  A LAW OF PENNSYLVANIA CLASSIFYING PUNISHMENTS TO BE IMPOSED ON
CONVICTS BREAKING OUT OF THE PENITENTIARY BY AUTHORIZING THE COURT TO
IMPRISON EACH FOR A PERIOD NOT EXCEEDING HIS ORIGINAL SENTENCE, HELD
CONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.  P. 52. 

PENNSYLVANIA EX REL. SULLIVAN V. ASHE, WARDEN. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

REVIEW BY CERTIORARI, 301 U.S. 675, OF A JUDGMENT OF THE COURT BELOW
DENYING A PETITION FOR A WRIT OF HABEAS CORPUS. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IN THIS CASE IS WHETHER, CONSISTENTLY WITH THE
EQUAL PROTECTION CLAUSE, A STATE MAY CLASSIFY PUNISHMENTS TO BE IMPOSED
ON CONVICTS BREAKING OUT OF THE PENITENTIARY BY AUTHORIZING THE COURT
TO IMPRISON EACH FOR A PERIOD NOT EXCEEDING HIS ORIGINAL SENTENCE. 

SEPTEMBER 21, 1936, PETITIONER, ASSERTING THAT HE WAS ILLEGALLY
COMMITTED TO THE WESTERN PENITENTIARY OF PENNSYLVANIA TO SERVE A
SENTENCE FOR THE CRIME OF BREAKING OUT OF THAT PRISON, APPLIED TO THE
HIGHEST COURT OF THE STATE FOR A WRIT OF HABEAS CORPUS.  THE COURT
GRANTED A RULE TO SHOW CAUSE AND, AFTER HEARING COUNSEL FOR THE
PARTIES, HELD PETITIONER LAWFULLY SENTENCED AND DISCHARGED THE RULE. 
325 PA. ST. 305; 188 ATL. 841.  THE PETITION FOR WRIT OF CERTIORARI
ASSERTS THAT THIS DECISION CONFLICTS WITH STATE V. LEWIN, 53 KAN. 679;
37 P. 168; IN RE MALLON, 16 IDAHO 737; 102 P. 374; AND STATE V.
JOHNSEY, 46 OKLA. CR. APP. 233; 287 P. 729.  THE STATUTES CONDEMNED IN
THE KANSAS AND IDAHO CASES DIFFER ESSENTIALLY FROM THE PENNSYLVANIA
STATUTE UPHELD IN THIS CASE.  FINDING CONFLICT BETWEEN THE DECISION
BELOW AND THAT IN THE OKLAHOMA CASE, WE GRANTED THE WRIT.  JUDICIAL
CODE, SEC. 237(B); 28 U.S.C., SEC. 344(B). 

THE CHALLENGED PROVISION, FOUND IN THE ACT OF MARCH 31, 1860, P.L.
382, DECLARES (SEC. 3) THAT "IF ANY PRISONER IMPRISONED IN ANY
PENITENTIARY ...  UPON A CONVICTION FOR A CRIMINAL OFFENSE ...  SHALL
BREAK SUCH PENITENTIARY  ...  SUCH PERSON SHALL BE GUILTY OF A
MISDEMEANOR, AND UPON CONVICTION OF SAID OFFENSE, SHALL BE SENTENCED TO
UNDERGO AN IMPRISONMENT, TO COMMENCE FROM THE EXPIRATION OF HIS
ORIGINAL SENTENCE, OF THE LIKE NATURE, AND FOR A PERIOD OF TIME NOT
EXCEEDING THE ORIGINAL SENTENCE, BY VIRTUE OF WHICH HE WAS IMPRISONED,
WHEN HE SO BROKE PRISON AND ESCAPED...." 

IN 1929, PETITIONER PLEADED GUILTY OF THE CRIMES OF BURGLARY AND
LARCENY AND WAS SENTENCED TO THE WESTERN PENITENTIARY FOR A TERM OF
FROM THREE TO SIX YEARS.  IN DECEMBER, 1931, HE BROKE OUT, AND, AFTER
CAPTURE AND CONVICTION, WAS SENTENCED TO IMPRISONMENT FOR A TERM OF THE
SAME LENGTH AS, AND TO COMMENCE AT THE EXPIRATION OF, THE ORIGINAL
SENTENCE. 

TO ILLUSTRATE THE INEQUALITIES BETWEEN SENTENCES PERMISSIBLE UNDER
THE CHALLENGED PROVISION, PETITIONER EMPHASIZES THE FACT THAT, IF TWO
OR MORE CONVICTS ESCAPE TOGETHER UNDER THE SAME CIRCUMSTANCES, THEY MAY
BE SENTENCED FOR DIFFERENT TERMS.  IN FACT, THE RECORD SHOWS THAT
PETITIONER ESCAPED SIMULTANEOUSLY WITH ONE MCCANN AND THAT UPON
CONVICTION FOR THE SAME CRIME THE LATTER WAS SENTENCED TO SERVE A TERM
EQUAL TO HIS ORIGINAL SENTENCE, FROM ONE TO TWO YEARS. 

BUT THE FACT THAT TERMS OF IMPRISONMENT MAY DIFFER AS DO ORIGINAL
SENTENCES DOES NOT WARRANT CONDEMNATION OF THE STATUTE.  THE LAW HAS
LONG RECOGNIZED A RELATION BETWEEN PUNISHMENT FOR BREACH OF PRISON AND
THE OFFENSE FOR WHICH THE PRISONER IS HELD, AND IT HAS MORE SEVERELY
PUNISHED PRISON BREAKING BY ONE UNDERGOING IMPRISONMENT FOR GRIEVOUS
CRIME THAN IF DONE BY ONE HELD FOR A LESSER OFFENSE.  PRIOR TO THE
STATUTE DE FRANGENTIBUS PRISONAM OF 1 EDW.  II (1307) EVERY PRISON
BREAKING BY THE OFFENDER HIMSELF, WHATEVER THE CRIME FOR WHICH HE WAS
COMMITTED, WAS A FELONY, PUNISHABLE BY "JUDGMENT OF LIFE OR MEMBER." 
THIS SEVERITY WAS MITIGATED BY THE STATUTE.  IT FORBADE THAT JUDGMENT
UNLESS THE BREAKING WAS BY ONE COMMITTED FOR A CAPITAL OFFENSE.  FN1
BREACH AND ESCAPE BY ONE HELD FOR FELONY CONTINUED TO BE DEALT WITH AS
FELONY; BUT, IF COMMITTED BY ONE CONFINED FOR AN INFERIOR OFFENSE, WAS
PUNISHABLE AS A HIGH MISDEMEANOR BY FINE AND IMPRISONMENT.  FN2  IN
HARMONY WITH THAT IDEA A NUMBER OF STATES DEAL WITH THAT OFFENSE MORE
SEVERELY WHEN COMMITTED BY ONE IMPRISONED FOR A HEINOUS OFFENSE OR A
LONG TERM.  FN3  INDEED, THIS COURT HAS SUSTAINED CLASSIFICATION FOR
PUNISHMENT OF CRIMES BY CONVICTS UPON THE BASIS OF THE SENTENCES BEING
SERVED AT THE TIME.  IN FINLEY V. CALIFORNIA, 222 U.S. 28, IT HELD THAT
A STATUTE PRESCRIBING THE DEATH PENALTY FOR THE COMMISSION BY LIFE
PRISONERS OF ASSAULTS WITH INTENT TO KILL, LESSER PUNISHMENTS BEING
LAID UPON OTHER CONVICTS, WAS NOT REPUGNANT TO THE EQUAL PROTECTION
CLAUSE. 

THE PRINCIPLE IS SIMILAR TO THAT UNDER WHICH PUNISHMENT OF LIKE
CRIMES MAY BE MADE MORE SEVERE IF COMMITTED BY EX-CONVICTS. 
PERSISTENCE IN CRIME AND FAILURE OF EARLIER DISCIPLINE EFFECTIVELY TO
DETER OR REFORM JUSTIFY MORE DRASTIC TREATMENT.  GRAHAM V. WEST
VIRGINIA, 224 U.S. 616, 623.  MCDONALD V. MASSACHUSETTS, 180 U.S. 311. 
MOORE V. MISSOURI, 159 U.S. 673, 677.  PLUMBLY V. COMMONWEALTH, 2
METC.  413, 415.  PEOPLE V. SICKLES, 156 N.Y. 541, 547; 51 N.E. 288. 
SAVE AS LIMITED BY CONSTITUTIONAL PROVISIONS SAFEGUARDING INDIVIDUAL
RIGHTS, A STATE MAY CHOOSE MEANS TO PROTECT ITSELF AND ITS PEOPLE
AGAINST CRIMINAL VIOLATION OF ITS LAWS.  THE COMPARATIVE GRAVITY OF
CRIMINAL OFFENSES AND WHETHER THEIR CONSEQUENCES ARE MORE OR LESS
INJURIOUS ARE MATTERS FOR ITS DETERMINATION.  COLLINS V. JOHNSTON, 237
U.S. 502, 510.  HOWARD V. FLEMING, 191 U.S. 126, 135-136.  IT MAY
INFLICT A DESERVED PENALTY MERELY TO VINDICATE THE LAW OR TO DETER OR
TO REFORM THE OFFENDER OR FOR ALL OF THESE PURPOSES.  FOR THE
DETERMINATION OF SENTENCES, JUSTICE GENERALLY REQUIRES CONSIDERATION OF
MORE THAN THE PARTICULAR ACTS BY WHICH THE CRIME WAS COMMITTED AND THAT
THERE BE TAKEN INTO ACCOUNT THE CIRCUMSTANCES OF THE OFFENSE TOGETHER
WITH THE CHARACTER AND PROPENSITIES OF THE OFFENDER.  HIS PAST MAY BE
TAKEN TO INDICATE HIS PRESENT PURPOSES AND TENDENCIES AND SIGNIFICANTLY
TO SUGGEST THE PERIOD OF RESTRAINT AND THE KIND OF DISCIPLINE THAT
OUGHT TO BE IMPOSED UPON HIM. 

PRESUMABLY, THE SENTENCE BEING SERVED AT THE TIME OF PRISON BREAKING
WAS DETERMINED UPON DUE CONSIDERATION OF THE PERTINENT FACTS.  THE
JUDGMENT THEN PRONOUNCED IS GOOD EVIDENCE OF THE CONVICT'S NATURAL OR
ACQUIRED BENT OF MIND AND HIS ATTITUDE TOWARD THE LAW AND RIGHTS OF
OTHERS.  THE FACT THAT HE WOULD AND DID BREAK PRISON SHOWS HIM STILL
DISPOSED TO EVIL AND DETERMINED TO REMAIN HOSTILE TO SOCIETY.  AND THAT
IS SUFFICIENT TO SUSTAIN THE CLASSIFICATION MADE BY THE PENNSYLVANIA
STATUTE FOR PUNISHMENT OF PRISON BREAKERS ON THE BASIS OF THEIR
ORIGINAL SENTENCES.  AFFIRMED. 

FN1  "THAT NONE FROM HENCEFORTH THAT BREAKETH PRISON SHALL HAVE
JUDGMENT OF LIFE OR MEMBER FOR BREAKING OF PRISON ONLY, EXCEPT THE
CAUSE FOR WHICH HE WAS TAKEN AND IMPRISONED DID REQUIRE SUCH JUDGMENT,
IF HE HAD BEEN CONVICT THEREUPON ACCORDING TO THE LAW AND CUSTOM OF THE
REALM, ALBEIT IN TIMES PAST IT HATH BEEN USED OTHERWISE." 

FN2  SEE IV BLACKSTONE, P. 130; I HALE'S PLEAS OF THE CROWN, C. 54;
II HAWKINS' PLEAS OF THE CROWN, C. 18; II WHARTON CRIMINAL LAW (12TH
ED.)  SEC.  2019.  REX V. HASWELL, R. & R. 458.  COMMONWEALTH V.
MILLER, 2 ASHM.  (PA.)  61.  CF. REX V. FELL, 1 LD. RAYM.  424; KYLE V.
STATE, 10 ALA. 236; COMMONWEALTH V. HOMER, 5 METC.  555, 558. 

FN3  ARIZONA, REVISED CODE 1928, SEC. 4539.  CONNECTICUT, GEN. STATS.
(1930 REVISION) SECS. 6173, 6175.  IDAHO, CODE 1932, TITLE 17, SECS.
803, 804.  INDIANA, ANNOTATED STATUTES, 1933, SEC. 10-1807.  MAINE,
REVISED STATUTES, 1930, C. 133, SEC. 16; C. 152, SEC. 45.  MINNESOTA,
MASON'S STATUTES, 1927, SEC. 10007.  NEW YORK, PENAL LAW, SEC. 1694. 
NORTH DAKOTA, COMPILED LAWS 1913, SEC. 9351.  WASHINGTON, REMINGTON'S
REVISED STATUTES, SEC. 2342.  WISCONSIN, STATUTES 1935, SECS. 346.40,
346.45. 
..END :













MCEACHERN V. ROSE, 302 U.S. 56 


NO. 6.  ARGUED OCTOBER 14, 15, 1937.  - DECIDED NOVEMBER 8, 1937.  - 86
F.(2D) 231, REVERSED. 


1.  SECTIONS 607 AND 609(A) OF THE REVENUE ACT OF 1928 REQUIRE THE
GOVERNMENT TO RETURN THE AMOUNT OF A TAX PAID AFTER IT HAS BEEN BARRED
BY LIMITATION AND PRECLUDE IT FROM TAKING ANY BENEFIT FROM A TAXPAYER'S
OVERPAYMENT BY CREDITING IT AGAINST AN UNPAID TAX, THE COLLECTION OF
WHICH HAS BEEN BARRED BY LIMITATION.  P. 59. 

2.  THERE CAN BE NO CREDIT OF AN OVERPAYMENT AGAINST AN EARLIER
UNPAID TAX UNTIL THE FORMER HAS BEEN ASCERTAINED AND ALLOWED.  P. 61. 

3.  SECTIONS 322 AND 609 OF THE REVENUE ACT OF 1928 BOTH CONTEMPLATE
THAT THE TIME OF CREDIT OF AN OVERPAYMENT IN ONE YEAR AGAINST A TAX FOR
ANOTHER IS TO BE MARKED BY SOME DEFINITE ADMINISTRATIVE ACTION; AND
UNDER SEC. 1104 OF THE REVENUE ACT OF 1932, THAT ACTION OCCURS WHEN THE
COMMISSIONER OF INTERNAL REVENUE FIRST SIGNS THE SCHEDULE OF
OVERASSESSMENTS.  P. 61. 

WHERE THIS OCCURS AFTER THE EARLIER TAX HAS BEEN BARRED, CREDIT
AGAINST IT OF THE OVERASSESSMENT IS PROHIBITED BY SEC. 609 OF THE ACT
OF 1928. 

4.  THE SIMILAR TREATMENT ACCORDED BY THE STATUTES TO CREDIT AGAINST
AN OVERDUE TAX AND TO PAYMENT OF IT; THE PROHIBITION OF CREDIT OF AN
OVERPAYMENT OF ONE YEAR AGAINST A BARRED DEFICIENCY FOR ANOTHER, AND
THE REQUIREMENT THAT PAYMENT OF A BARRED DEFICIENCY BE REFUNDED, ARE
CONTROLLING EVIDENCES OF THE CONGRESSIONAL PURPOSE, BY THE ENACTMENT OF
SECS. 607 AND 609, TO REQUIRE REFUND TO THE TAXPAYER OF AN OVERPAYMENT,
EVEN THOUGH HE HAS FAILED TO PAY TAXES FOR OTHER PERIODS, WHENEVER
THEIR COLLECTION IS BARRED BY LIMITATION.  P. 62. 

5.  STONE V. WHITE, 301 U.S. 532, DISTINGUISHED.  P. 62. 

MCEACHERN, ADMINISTRATOR, V. ROSE, FORMER COLLECTOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 300 U.S. 652, TO REVIEW A JUDGMENT REVERSING A TAX
RECOVERY SECURED BY THE PETITIONER IN THE DISTRICT COURT, IN AN ACTION
AGAINST THE COLLECTOR. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS PETITION FOR CERTIORARI RAISES THE QUESTION WHETHER OVERPAYMENTS
OF INCOME TAXES FOR THE CALENDAR YEARS 1929, 1930 AND 1931 ARE SO
RELATED TO A TAX ON INCOME WHICH SHOULD HAVE BEEN BUT WAS NOT ASSESSED
AGAINST THE TAXPAYER FOR THE YEAR 1928, AS TO PRECLUDE RECOVERY OF THE
OVERPAYMENTS ALTHOUGH COLLECTION OF THE 1928 TAX IS BARRED BY THE
STATUTE OF LIMITATIONS. 

IN 1924 PETITIONER'S DECEDENT SOLD FIVE HUNDRED SHARES OF THE
CORPORATE STOCK OF AN INSURANCE COMPANY FOR THE SUM OF $300,000, AT A
NET PROFIT OF $295,000 OVER 1918 COST.  TEN PER CENT. OF THE PURCHASE
PRICE WAS PAID AT THE TIME OF SALE AND THE BALANCE WAS TO BE PAID IN
INSTALLMENTS, AGGREGATING ANNUALLY 10% OF THE PURCHASE PRICE, IN EACH
OF THE NINE SUCCEEDING YEARS.  AS PERMITTED BY THE APPLICABLE STATUTES
(SEC. 202, REVENUE ACT OF 1924, C. 234, 43 STAT. 255; SECS. 202, 212,
REVENUE ACT OF 1926, C. 27, 44 STAT. 11, 23; SEC. 44, REVENUE ACT OF
1928, C. 852, 45 STAT. 805), DECEDENT ELECTED TO RETURN THE PROFIT FOR
INCOME TAXATION ON THE INSTALLMENT BASIS.  AFTER HIS DEATH IN 1928
PETITIONER, AS HIS ADMINISTRATOR, FILED INCOME TAX RETURNS IN BEHALF OF
HIS ESTATE FOR THE CALENDAR YEARS 1928 TO 1931 INCLUSIVE, SHOWING IN
EACH YEAR A SALE OF FIFTY SHARES OF THE STOCK OF THE INSURANCE COMPANY
AT A NET PROFIT OF $29,500.  THESE RETURNS WERE ERRONEOUS IN POINT OF
FACT AND OF LAW, AS THE PETITIONER SOLD NO SHARES OF THE STOCK IN ANY
OF THOSE YEARS, AND SINCE, BY REASON OF THE PROVISIONS OF SEC. 44(D) OF
THE 1928 ACT,  FN1  THE CAPITAL GAIN INCLUDED IN THE VALUE OF THE
UNPAID INSTALLMENTS AT THE TIME OF DECEDENT'S DEATH, WAS INCOME TAXABLE
TO DECEDENT FOR THE YEAR 1928 AND NOT IN SUBSEQUENT YEARS. 

BY THE PROVISIONS OF SEC. 44(D), AS CONSTRUED BY TREASURY REGULATIONS
74, ART. 355, THE TRANSMISSION OF AN INSTALLMENT OBLIGATION AT THE
DEATH OF THE PAYEE CAPITALIZES THE UNPAID INSTALLMENTS OF THE CONTRACT
AND RESULTS IN TAXABLE GAIN TO THE ESTATE OF THE DECEDENT, MEASURED BY
THE DIFFERENCE BETWEEN THE FAIR MARKET VALUE OF THE OBLIGATION AT THE
TIME OF HIS DEATH AND ITS UNRECOVERED COST.  BY SEC. 113 OF THE 1928
ACT THE BASIS FOR COMPUTING THE ANNUAL PROFIT UPON THE INSTALLMENTS
PAID AFTER THE DECEDENT'S DEATH IS THE FAIR MARKET VALUE OF THE
CONTRACT AT THE TIME OF HIS DEATH.  THE UNPAID TAX FOR 1928, COMPUTED
AS REQUIRED BY SEC. 44(D), EXCEEDS THE SUM OF THE OVERPAYMENTS MADE IN
1929, 1930 AND 1931. 

ON THE TRIAL IN THE DISTRICT COURT THE COLLECTOR CONTENDED THAT
PETITIONER WAS ESTOPPED TO DENY THAT THE SALES OF STOCK OCCURRED AND
PROFIT ACCRUED AS REPORTED IN HIS RETURNS FOR THE YEARS IN WHICH
REFUNDS WERE CLAIMED; AND THAT, IN ANY CASE, UPON EQUITABLE PRINCIPLES,
THE PETITIONER WAS NOT ENTITLED TO RECOVER THE OVERPAYMENTS FOR THOSE
YEARS, SINCE THEY WERE LESS IN AMOUNT THAN THE TAX WHICH SHOULD HAVE
BEEN ASSESSED AGAINST HIM FOR 1928.  SEE STONE V. WHITE, 301 U.S. 532. 
THE TRIAL COURT OVERRULED THESE CONTENTIONS AND GAVE JUDGMENT FOR
PETITIONER.  THE COURT OF APPEALS FOR THE FIFTH CIRCUIT REVERSED,
HOLDING THAT PETITIONER WAS NOT IN EQUITY AND GOOD CONSCIENCE ENTITLED
TO RECOVER THE OVERPAYMENTS WHICH, BECAUSE OF HIS FAILURE TO PAY THE
1928 TAX, HAD RESULTED IN NO UNJUST ENRICHMENT OF THE GOVERNMENT.  86
F.(2D) 231.  WE GRANTED CERTIORARI BECAUSE OF THE IMPORTANCE OF THE
QUESTION IN ADMINISTRATION OF THE REVENUE LAWS. 

THE COLLECTOR DOES NOT PRESS HERE THE CONTENTION THAT PETITIONER IS
ESTOPPED TO CHALLENGE THE CORRECTNESS OF HIS RETURNS FOR THE YEARS OF
OVERPAYMENT.  THE FAILURE OF THE GOVERNMENT TO ASSESS THE APPROPRIATE
TAX IN 1928 IS NOT SHOWN TO BE ATTRIBUTABLE TO THE ERRONEOUS STATEMENTS
MADE IN THE RETURNS FOR THE LATER YEARS, AND IT IS NOT NECESSARY FOR
PETITIONER TO SHOW UNDERSTATEMENT OF THE INCOME TAXABLE IN 1928 IN
ORDER TO SHOW THE CORRECT AMOUNT OF THE DIFFERENT INCOME DERIVED FROM
THE INSTALLMENT CONTRACT IN THE YEARS OF OVERPAYMENT.  FOR, UNDER SEC.
113, THE OVERPAYMENTS ARE ESTABLISHED BY SHOWING THAT IN EACH YEAR THE
AMOUNT OF INCOME FROM THE SALE OF THE STOCK AS REPORTED EXCEEDED THE
DIFFERENCE BETWEEN THE INSTALLMENTS COLLECTED AND SO MUCH OF THE VALUE
OF THE INSTALLMENT CONTRACT AT THE DEATH AS IS ALLOCABLE TO THE TAXABLE
YEAR.  BUT RESPONDENT INSISTS, AS THE COURT BELOW HELD, THAT PETITIONER
IS NOT EQUITABLY ENTITLED TO RECOVER OVERPAYMENTS OF TAXES UPON THE
PROFITS DERIVED FROM THE CONTRACT IN CERTAIN YEARS BECAUSE THE
OVERPAYMENTS ARE EXCEEDED BY A TAX WHICH HE SHOULD HAVE PAID ON THE
PROFITS REALIZED IN AN EARLIER YEAR. 

WE MAY ASSUME THAT, IN THE CIRCUMSTANCES, EQUITABLE PRINCIPLES WOULD
PRECLUDE RECOVERY IN THE ABSENCE OF ANY STATUTORY PROVISION REQUIRING A
DIFFERENT RESULT.  BUT CONGRESS HAS SET LIMITS TO THE EXTENT TO WHICH
COURTS MIGHT OTHERWISE GO IN CURTAILING A RECOVERY OF OVERPAYMENTS OF
TAXES BECAUSE OF THE TAXPAYER'S FAILURE TO PAY OTHER TAXES WHICH MIGHT
HAVE BEEN BUT WERE NOT ASSESSED AGAINST HIM.  SECTION 607 OF THE 1928
ACT DECLARES THAT ANY PAYMENT OF A TAX AFTER EXPIRATION OF THE PERIOD
OF LIMITATION SHALL BE CONSIDERED AN OVERPAYMENT AND DIRECTS THAT IT BE
"CREDITED OR REFUNDED TO THE TAXPAYER IF CLAIM THEREFOR IS FILED WITHIN
THE PERIOD OF LIMITATION FOR FILING SUCH CLAIM"; AND SEC. 609(A) OF THE
1928 ACT PROVIDES THAT "ANY CREDIT AGAINST A LIABILITY IN RESPECT OF
ANY TAXABLE YEAR SHALL BE VOID IF ANY PAYMENT IN RESPECT OF SUCH
LIABILITY WOULD BE CONSIDERED AN OVERPAYMENT UNDER SECTION 607."  THESE
PROVISIONS PRECLUDE THE GOVERNMENT FROM TAKING ANY BENEFIT FROM THE
TAXPAYER'S OVERPAYMENT BY CREDITING IT AGAINST AN UNPAID TAX WHOSE
COLLECTION HAS BEEN BARRED BY LIMITATION. 

IT IS PLAIN THAT THESE PROVISIONS FORBID CREDIT OF THE OVERPAYMENTS
OF TAXES FOR 1930 AND 1931, WHICH WERE MADE AFTER COLLECTION OF THE
1928 TAX WAS BARRED.  IF PETITIONER HAD THEN PAID THE 1928 TAX THERE
WOULD HAVE BEEN AN OVERPAYMENT OF THE TAX, REFUND OF WHICH IS MADE
MANDATORY BY SEC. 607.  CREDITS AGAINST THE TAX OF OVERPAYMENTS OF
TAXES ASSESSED FOR OTHER YEARS, IF MADE AT THAT TIME, COULD NOT STAND
ON ANY DIFFERENT FOOTING UNDER THE PROVISIONS OF SEC. 609.  THE RIGHT
OF THE GOVERNMENT TO CREDIT THE OVERPAYMENTS UPON THE EARLIER UNPAID
TAX COULD ARISE ONLY WHEN THE OVERPAYMENTS OCCURRED; BUT SINCE AT THAT
TIME COLLECTION OF THE 1928 TAX WAS BARRED BY LIMITATION, AND PAYMENT
OF IT WOULD BE AN OVERPAYMENT, CREDIT AGAINST IT OF THE 1930 AND 1931
OVERPAYMENTS WAS FORBIDDEN BY SEC. 609. 

DIFFERENT CONSIDERATIONS APPLY TO THE 1929 OVERPAYMENT.  WHEN IT WAS
MADE, COLLECTION OF THE 1928 TAX WAS NOT BARRED AND THE COMMISSIONER
WAS NOT THEN PREVENTED BY SEC. 609 FROM CREDITING THE OVERPAYMENT UPON
THE 1928 TAX, ALTHOUGH HE DID NOT DO SO.  SECTION 322 OF THE 1928 ACT,
FN2 CONTINUED WITHOUT MATERIAL CHANGE IN THE 1932 ACT, AUTHORIZES THE
CREDIT OF AN OVERPAYMENT OF ANY TAX AGAINST ANY INCOME TAX "THEN DUE"
FROM THE TAXPAYER, AND DIRECTS THAT ANY "BALANCE SHALL BE REFUNDED
IMMEDIATELY TO THE TAXPAYER."  WE NEED NOT INQUIRE WHETHER THE 1928
DEFICIENCY WAS "DUE" WITHIN THE MEANING OF THIS SECTION BEFORE THE TAX
WAS ASSESSED, FOR IN ANY CASE THERE COULD BE NO CREDIT AGAINST THE TAX
OF THE 1929 OVERPAYMENT, BEFORE THE AMOUNT OF THE LATTER WAS
ASCERTAINED AND ALLOWED AND AT THAT TIME COLLECTION OF THE 1928 TAX WAS
BARRED AND ANY CREDIT OF THE OVERPAYMENT AGAINST IT WAS DECLARED TO BE
VOID BY SEC. 609. 

BOTH SEC. 322 AND SEC. 609 CONTEMPLATE THAT THE TIME OF CREDIT OF AN
OVERPAYMENT IN ONE YEAR AGAINST A TAX FOR ANOTHER IS TO BE MARKED BY
SOME DEFINITE ADMINISTRATIVE ACTION.  THIS COURT, UPON AN EXAMINATION
OF THE ESTABLISHED PRACTICE IN THE BUREAU OF INTERNAL REVENUE,
CONCLUDED THAT THE TIME OF ALLOWANCE OF A REFUND AND THE TIME OF CREDIT
OF AN OVERPAYMENT AGAINST A TAX DUE, IS THE DATE OF APPROVAL BY THE
COMMISSIONER OF THE SCHEDULE OF REFUNDS AND CREDITS PREPARED BY THE
COLLECTOR, SHOWING THE AMOUNT DUE THE TAXPAYER, RATHER THAN THE EARLIER
DATE OF THE CERTIFICATION BY THE COMMISSIONER TO THE COLLECTOR, OF THE
SCHEDULE OF OVERASSESSMENTS.  SEE UNITED STATES V. SWIFT & CO., 282
U.S. 468; GIRARD TRUST CO. V. UNITED STATES, 270 U.S. 163.  WE
ACCORDINGLY HELD THAT APPROVAL OF THE SCHEDULE OF REFUNDS AND CREDITS
FIXES THE DATE FROM WHICH INTEREST IS ALLOWED UPON ANY BALANCE REFUNDED
TO THE TAXPAYER, GIRARD TRUST CO. V. UNITED STATES, SUPRA, AND THE DATE
FROM WHICH THE STATUTE OF LIMITATIONS RUNS AGAINST THE TAXPAYER'S RIGHT
TO DEMAND REFUND OF A TAX PAID BY THE ALLOWANCE OF A CREDIT.  UNITED
STATES V. SWIFT & CO., SUPRA. 

AFTER THESE DECISIONS SEC. 1104 OF THE REVENUE ACT OF 1932, C. 209,
47 STAT. 287, CHANGED THE DATE WHICH SHOULD BE DEEMED TO BE THE TIME OF
ALLOWANCE OF THE CREDIT OR REFUND WITHIN THE MEANING OF THAT AND
EARLIER REVENUE LAWS.  IT PROVIDED THAT "WHERE THE COMMISSIONER HAS
(BEFORE OR AFTER THE ENACTMENT OF THIS ACT) SIGNED A SCHEDULE OF
OVERASSESSMENTS IN RESPECT OF ANY INTERNAL REVENUE TAX IMPOSED BY THIS
ACT OR ANY PRIOR REVENUE ACT, THE DATE ON WHICH HE FIRST SIGNED SUCH
SCHEDULE (IF AFTER MAY 28, 1928) SHALL BE CONSIDERED AS THE DATE OF
ALLOWANCE OF REFUND OR CREDIT IN RESPECT OF SUCH TAX." 

THE DATE OF THE CLAIM FOR REFUND AND THE DATE OF THE ALLOWANCE OF THE
CREDIT WHICH, ACCORDING TO SEC. 1104, WAS THAT OF THE APPROVAL BY THE
COMMISSIONER OF THE SCHEDULE OF OVERASSESSMENTS, CAME AFTER RECOVERY OF
THE 1928 TAX WAS BARRED.  IF PETITIONER HAD THEN PAID THE TAX HE COULD
HAVE RECOVERED IT BACK AS AN OVERPAYMENT UNDER SEC. 607; ACCORDINGLY,
CREDIT AGAINST THE TAX OF THE 1929 OVERPAYMENT IS PROHIBITED BY SEC.
609, AS ARE LIKE CREDITS FOR THE OVERPAYMENTS OF 1930 AND 1931. 

THE SIMILAR TREATMENT ACCORDED BY THE STATUTES TO CREDIT AGAINST AN
OVERDUE TAX, AND TO PAYMENT OF IT; THE PROHIBITION OF CREDIT OF AN
OVERPAYMENT OF ONE YEAR AGAINST A BARRED DEFICIENCY FOR ANOTHER; AND
THE REQUIREMENT THAT PAYMENT OF A BARRED DEFICIENCY SHALL BE REFUNDED,
ARE CONTROLLING EVIDENCES OF THE CONGRESSIONAL PURPOSE BY THE ENACTMENT
OF SECS. 607 AND 609 TO REQUIRE REFUND TO THE TAXPAYER OF AN
OVERPAYMENT, EVEN THOUGH HE HAS FAILED TO PAY TAXES FOR OTHER PERIODS,
WHENEVER THEIR COLLECTION IS BARRED BY LIMITATION. 

STONE V. WHITE, SUPRA. THERE TESTAMENTARY TRUSTEES HAD PAID FROM INCOME
A TAX UPON IT WHICH SHOULD HAVE BEEN PAID BY THE BENEFICIARY, AND IT
WAS HELD THAT THEY WERE NOT EQUITABLY ENTITLED TO RECOVER THE TAX AFTER
THE STATUTE HAD BARRED COLLECTION FROM THE BENEFICIARY.  THE ASSESSMENT
OF A DEFICIENCY AGAINST THE TRUSTEES AND THE PAYMENT OF IT BY THEM WERE
NOT BARRED BY LIMITATION.  HENCE SEC. 607 DID NOT COMPEL A RECOVERY. 
DID SEC. 322, REGARDLESS OF ANY PERIOD OF LIMITATION, PERMIT HIM TO
CREDIT THE AMOUNT WHICH THE ONE TAXPAYER HAD PAID AGAINST THE TAX WHICH
ANOTHER SHOULD HAVE PAID.  EQUITABLE CONSIDERATIONS NOT WITHIN THE
REACH OF THE STATUTES DENIED A RECOVERY.  IT WAS ENOUGH, IN THE
PECULIAR FACTS OF THE CASE, THAT THE TRUSTEES HAD SUFFERED NO BURDEN
AND THAT THE GOVERNMENT WAS NOT UNJUSTLY ENRICHED.  REVERSED. 

FN1  "SEC.  44.... 

"(D)  GAIN OR LOSS UPON DISPOSITION OF INSTALLMENT OBLIGATIONS.  - IF
AN INSTALLMENT OBLIGATION IS  ...  DISTRIBUTED, TRANSMITTED, SOLD, OR
OTHERWISE DISPOSED OF, GAIN OR LOSS SHALL RESULT TO THE EXTENT OF THE
DIFFERENCE BETWEEN THE BASIS OF THE OBLIGATION AND  ...  THE FAIR
MARKET VALUE OF THE OBLIGATION AT THE TIME OF SUCH DISTRIBUTION,
TRANSMISSION, OR DISPOSITION.  THE BASIS OF THE OBLIGATION SHALL BE THE
EXCESS OF THE FACE VALUE OF THE OBLIGATION OVER AN AMOUNT EQUAL TO THE
INCOME WHICH WOULD BE RETURNABLE WERE THE OBLIGATION SATISFIED IN
FULL." 

FN2  SEC. 322. 

"(A)  AUTHORIZATION.  - WHERE THERE HAS BEEN AN OVERPAYMENT OF ANY
TAX IMPOSED BY THIS TITLE, THE AMOUNT OF SUCH OVERPAYMENT SHALL BE
CREDITED AGAINST ANY INCOME, WAR-PROFITS, OR EXCESS-PROFITS TAX OR
INSTALLMENT THEREOF THEN DUE FROM THE TAXPAYER, AND ANY BALANCE SHALL
BE REFUNDED IMMEDIATELY TO THE TAXPAYER...." 
..END :







PALMER V. COMMISSIONER, 302 U.S. 63 


NO. 19.  ARGUED OCTOBER 19, 1937.  - DECIDED NOVEMBER 8, 1937.  - 88
F.(2D) 559, REVERSED. 


1.  BY SECS. 111, 112, 113 OF THE REVENUE ACT OF 1928, PROFITS DERIVED
FROM THE PURCHASE OF PROPERTY, AS DISTINGUISHED FROM EXCHANGES OF
PROPERTY, ARE ASCERTAINED AND TAXED AS OF THE DATE OF ITS SALE OR OTHER
DISPOSITION BY THE PURCHASER.  PROFIT, IF ANY, ACCRUES TO HIM ONLY UPON
SALE OR DISPOSITION, AND THE TAXABLE INCOME IS THE DIFFERENCE BETWEEN
THE AMOUNT THUS REALIZED AND ITS COST, LESS ALLOWED DEDUCTIONS.  P.
68. 

2.  A SALE BY A CORPORATION TO ITS SHAREHOLDERS OF PART OF ITS
PROPERTY WHICH DOES NOT RESULT IN ANY DIMINUTION OF ITS NET WORTH, CAN
NOT RESULT IN A DISTRIBUTION OF PROFITS AND IS NOT A "DIVIDEND" WITHIN
THE MEANING OF SEC. 115 OF THE REVENUE ACT OF 1928.  P. 69. 

THE BARE FACT THAT A TRANSACTION, ON ITS FACE A SALE, HAS RESULTED IN
A DISTRIBUTION OF SOME OF THE CORPORATE ASSETS TO STOCKHOLDERS, GIVES
RISE TO NO INFERENCE THAT THE DISTRIBUTION WAS OF PROPERTY WORTH MORE
THAN THE PRICE RECEIVED AND WAS THEREFORE, TO THAT EXTENT, A DIVIDEND
WITHIN THE MEANING OF SEC. 115. 

3.  MERE ISSUE BY A CORPORATION TO ITS SHAREHOLDERS OF "RIGHTS" TO
SUBSCRIBE FOR STOCK WHICH IT OWNS IN ANOTHER CORPORATION, AND THEIR
RECEIPT BY SHAREHOLDERS, IS NOT A DIVIDEND AS DEFINED IN SEC. 115.  P.
71. 

4.  WHERE A CORPORATION, THROUGH RESOLUTION OF ITS BOARD OF
DIRECTORS, OFFERS TO ITS SHAREHOLDERS RIGHTS TO SUBSCRIBE, WITHIN A
TIME LIMITED, FOR SHARES WHICH IT OWNS IN ANOTHER COMPANY, INTENDING A
BONA FIDE SALE AND FIXING THE PRICE AT THE FAIR VALUE OF THE SHARES AT
THE TIME OF THE OFFER, THE FACT THAT, BETWEEN THE TIME OF THE OFFER AND
THE EXERCISE OF THE OPTION BY A SHAREHOLDER, THE RIGHTS WERE BOUGHT AND
SOLD AT SUBSTANTIAL PRICES ON THE EXCHANGE, OR THAT THE STOCK ITSELF
SOLD AT PRICES SUBSTANTIALLY ABOVE THE STIPULATED PURCHASE PRICE, DID
NOT CONVERT THE SALE, PRO TANTO, INTO A DIVIDEND.  P. 71. 

5.  FINDINGS OF THE BOARD OF TAX APPEALS BASED ON PERMISSIBLE
INFERENCES FROM THE RECORD ARE NOT TO BE SET ASIDE BY A COURT EVEN IF
UPON EXAMINATION OF THE EVIDENCE IT MIGHT DRAW A DIFFERENT INFERENCE. 
P. 70. 

PALMER V. COMMISSIONER OF INTERNAL REVENUE.* 

*TOGETHER WITH NO. 59, HELVERING, COMMISSIONER OF INTERNAL REVENUE V.
PALMER, ALSO ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR
THE FIRST CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT COURT OF APPEALS FOR THE FIRST
CIRCUIT. 

REVIEW BY CERTIORARI, 301 U.S. 676, 680, OF A JUDGMENT REVERSING THE
BOARD OF TAX APPEALS AND SUSTAINING A DEFICIENCY INCOME TAX
ASSESSMENT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER A PURPORTED SALE BY A
CORPORATION TO ITS STOCKHOLDERS, OF SHARES OF STOCK ISSUED BY AND
ACQUIRED FROM ANOTHER CORPORATION, THE SALE BEING EFFECTED BY MEANS OF
AN ISSUE TO THE STOCKHOLDERS OF RIGHTS TO PURCHASE THE STOCK AT A NAMED
PRICE, IS TO BE TREATED AS A DISTRIBUTION OF CORPORATE EARNINGS TAXABLE
AS A DIVIDEND TO THE STOCKHOLDERS WHEN RECEIVED, WITHIN THE REACH OF
SECS. 22 AND 115 OF THE REVENUE ACT OF 1928, C. 852, 45 STAT. 791. 

IN JANUARY, 1929, THE AMERICAN SUPERPOWER COMPANY, OF WHICH
PETITIONER WAS A STOCKHOLDER, ACQUIRED THROUGH CONSOLIDATION OF PUBLIC
UTILITY CORPORATIONS, IN ONE OF WHICH IT IN TURN WAS A STOCKHOLDER, A
LARGE AMOUNT OF THE SECURITIES OF THE UNITED CORPORATION, THE LATTER
BEING RECEIVED IN EXCHANGE FOR STOCK OF THE CONSOLIDATED CORPORATIONS
OWNED BY SUPERPOWER.  THE SECURITIES RECEIVED INCLUDED SHARES OF THE
PREFERENCE STOCK OF UNITED, 2,210,583 SHARES OF ITS COMMON STOCK, AND
1,000,000 RIGHTS TO SUBSCRIBE FOR UNITED COMMON STOCK AT ANY TIME FOR
$27.50 A SHARE.  UNITED WAS INCORPORATED JANUARY 7, 1929.  THE
CONSOLIDATION WAS EFFECTED JANUARY 12TH, WHEN SUPERPOWER BECAME
ENTITLED TO ITS ALLOTMENT OF THE SECURITIES.  ON JANUARY 23, 1929, THE
BOARD OF DIRECTORS OF SUPERPOWER, PURSUANT TO A PLAN TO STRENGTHEN ITS
CASH POSITION AND TO CREATE A WIDE MARKET FOR THE STOCK OF UNITED,
ADOPTED A RESOLUTION OFFERING TO ITS COMMON STOCKHOLDERS OF RECORD
JANUARY 26, 1929, THE PRIVILEGE OF PURCHASING, AT $25 A SHARE, ONE-HALF
SHARE OF UNITED FOR EACH SHARE OF THEIR COMMON STOCK IN SUPERPOWER. 
THE PRIVILEGE WAS EVIDENCED BY NEGOTIABLE CERTIFICATES DISTRIBUTED TO
STOCKHOLDERS ABOUT JANUARY 31.  BY THEIR TERMS THEY WERE TO BECOME VOID
UNLESS THE PRIVILEGE WAS EXERCISED BY FEBRUARY 15, 1929.  ON THAT DATE
PETITIONER EXERCISED THE PRIVILEGE BY PURCHASING HIS ALLOTMENT OF 3,198
SHARES OF UNITED AT $25 A SHARE.  IN ITS BOOKS, RECORDS AND ACCOUNTS,
SUPERPOWER TREATED THE TRANSACTION AS A SALE OF THE UNITED STOCK,
RESULTING IN NO CHANGE IN ITS NET ASSETS OR EARNINGS. 

THE PRICES RECEIVED BY SUPERPOWER FOR SHARES DISTRIBUTED TO ITS
STOCKHOLDERS REPRESENTED A SUBSTANTIAL PROFIT TO IT OVER COST OF THE
SECURITIES WHICH IT HAD EXCHANGED FOR THEM.  IT REPORTED THE PROFIT IN
ITS 1929 INCOME TAX RETURN AND PAID THE TAX ON IT FOR THAT YEAR.  IN
COMPUTING THE TAX THE COMMISSIONER, IN ALLOCATING THE COST OF THE THREE
CLASSES OF SECURITIES RECEIVED FROM UNITED BY SUPERPOWER, FOUND IT
NECESSARY TO DETERMINE THE VALUE OF EACH CLASS OF SECURITY WHEN
RECEIVED.  HE DID THIS BY FINDING THE TOTAL VALUE OF THE SECURITIES AND
ALLOCATING TO THE COMMON STOCK A VALUE OF $25 A SHARE.  ON OR ABOUT
JANUARY 9TH, BANKERS WHO WERE ACTIVE IN PROMOTING THE CONSOLIDATION
PURCHASED FROM UNITED 400,000 SHARES OF ITS STOCK AT $22.50 PER SHARE. 
SHORTLY AFTER THE ADOPTION BY SUPERPOWER, ON JANUARY 23RD, OF THE PLAN
FOR DISTRIBUTION OF THE UNITED STOCK, AN ACTIVE MARKET DEVELOPED ON THE
NEW YORK CURB EXCHANGE FOR THE SALE OF SUBSCRIPTION RIGHTS.  ON JANUARY
25TH, 11,000 RIGHTS WERE SOLD AT PRICES RANGING FROM 11 5/8 TO 12 3/8,
MAKING THE COST PER SHARE TO PURCHASERS OF THE RIGHTS, UPON THEIR
EXERCISE, ABOUT $50.  ON JANUARY 28TH, 44,000 OF THEM WERE DEALT IN ON
THE EXCHANGE AT PRICES RANGING FROM 12 5/8 TO 17 1/2, WITH A
CORRESPONDING COST OF THE SHARES OF FROM $50 TO $60.  ON JANUARY 29TH,
30TH AND 31ST, SUPERPOWER SOLD ABOUT 9,200 SHARES OF ITS UNITED STOCK
ON THE OPEN MARKET AT FROM $50 TO $63 PER SHARE. 

ON MAY 1, 1929, A LIKE PRIVILEGE TO PURCHASE ONE-FOURTH OF A SHARE OF
STOCK OF UNITED AT $30 A SHARE FOR EACH SHARE OF SUPERPOWER WAS
EXTENDED TO THE STOCKHOLDERS OF THE LATTER, AS OF MAY 8, 1929, WHICH
PETITIONER SIMILARLY EXERCISED ON MAY 24, 1929.  ON JUNE 5, 1929, A
LIKE PRIVILEGE WAS GIVEN TO THE COMMON STOCKHOLDERS OF SUPERPOWER AS OF
JUNE 18, 1929, TO PURCHASE STOCK OF COMMONWEALTH AND SOUTHERN
CORPORATION AT $15 A SHARE, WHICH PETITIONER EXERCISED ON JULY 2,
1929. 

PETITIONER DID NOT, IN 1929, SELL OR OTHERWISE DISPOSE OF ANY OF THE
SHARES FOR WHICH HE SUBSCRIBED, OR REPORT THEIR RECEIPT IN HIS INCOME
TAX RETURNS FOR THAT YEAR.  THE COMMISSIONER RULED THAT THE RIGHTS TO
SUBSCRIBE WERE DIVIDENDS, AND ASSESSED A DEFICIENCY AGAINST PETITIONER
BASED ON THEIR MARKET VALUE ON THE RESPECTIVE DATES WHEN THE
STOCKHOLDERS WERE FIRST ENTITLED TO EXERCISE THEM.  THE CAUSE WAS HEARD
BY THE BOARD OF TAX APPEALS UPON A STIPULATION OF FACTS WHICH IT
ADOPTED AS A FINDING AND WHICH SPECIFIED THE FACTS ALREADY DETAILED. 
THE BOARD HELD THAT THE DISTRIBUTIONS WERE SALES OF THE SHARES BY
SUPERPOWER TO ITS STOCKHOLDERS, NOT DIVIDENDS, AND REDUCED THE
DEFICIENCY ACCORDINGLY.  IN REACHING THIS DECISION THE BOARD, UPON
CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES ATTENDING THE ISSUE OF
THE RIGHTS BY SUPERPOWER TO ITS STOCKHOLDERS, FOUND THAT THERE WAS NO
INTENTION TO DISTRIBUTE ANY OF ITS EARNINGS TO STOCKHOLDERS AND THAT
THE TRANSACTION WAS WHAT IT PURPORTED TO BE ON ITS FACE - A SALE TO
STOCKHOLDERS OF PART OF THE CORPORATE ASSETS.  AS A SUPPORTING FACT IT
FOUND THAT THE FAIR VALUE OF THE COMMON STOCK OF UNITED DURING JANUARY,
1929, WAS $25 A SHARE.  IT CONCLUDED THAT THE FACTS AS STIPULATED AND
AS FOUND BY IT DID NOT SHOW FAIR MARKET VALUE OF THE UNITED STOCK IN
MAY, 1929, OR OF THE COMMONWEALTH AND SOUTHERN STOCK IN JUNE OR JULY OF
THAT YEAR.  UPON THE ENTIRE RECORD IT WAS OF THE OPINION THAT THERE WAS
NO REASON TO TREAT THE TRANSACTION ANY DIFFERENTLY THAN AS THE PARTIES
HAD TREATED IT, AS A SALE OF A PART OF THE ASSETS OF SUPERPOWER FROM
WHICH NO TAXABLE GAIN WOULD RESULT BEFORE THE TAXPAYER SOLD OR
OTHERWISE DISPOSED OF THE SHARES. 

THE COURT OF APPEALS FOR THE FIRST CIRCUIT REVERSED, HOLDING THAT THE
DISTRIBUTIONS WERE TAXABLE DIVIDENDS MEASURED BY THE DIFFERENCE BETWEEN
THE VALUE OF THE SEVERAL ALLOTMENTS OF SHARES ON THE RESPECTIVE DATES
WHEN THE RIGHTS WERE EXERCISED AND THE PRICES PAID FOR THEM.  88 F.(2D)
559.  IN REACHING THIS CONCLUSION THE COURT RECOGNIZED THAT THE BOARD
HAD FOUND THE JANUARY, 1929, VALUE OF THE STOCK OF UNITED TO BE $25 A
SHARE.  BUT IT THOUGHT THAT THE BOARD IN MAKING THE FINDING HAD
DISREGARDED THE SUBSTANTIAL PRICES AT WHICH THE RIGHTS WERE SOLD
PENDING THEIR EXERCISE, DENYING TO THEM PERSUASIVE WEIGHT BECAUSE IT
HAD MISTAKENLY ASSUMED THAT THE PURPORTED SALE COULD NOT BE TREATED AS
A DIVIDEND UNLESS THERE WAS INTENTION TO DISTRIBUTE THE CORPORATE
EARNINGS.  THE COURT HELD THAT WHAT WAS DONE, AND NOT WHAT WAS
INTENDED, WAS THE DECISIVE FACTOR, AND AS THERE WAS SUBSTANTIAL
EVIDENCE THAT THE STOCK, WHEN DISTRIBUTED, WAS WORTH MORE THAN THE
PRICE RECEIVED, THERE WAS A DISTRIBUTION OF CORPORATE ASSETS FROM
EARNINGS, TAXABLE TO STOCKHOLDERS AS A DIVIDEND.  IT ACCORDINGLY
REMANDED THE CAUSE TO ENABLE THE BOARD TO ASCERTAIN THE VALUE OF THE
DISTRIBUTED SHARES ON THE DATES WHEN THE RIGHTS WERE EXERCISED
(FEBRUARY 15, 1929, MAY 24, 1929, JULY 2, 1929). 

BOTH THE TAXPAYER AND THE COMMISSIONER PETITIONED FOR CERTIORARI, THE
ONE CHALLENGING THE RULING THAT THE DISTRIBUTIONS WERE DIVIDENDS, AND
THE OTHER ASSIGNING AS ERROR THE FAILURE TO HOLD THAT THE CRITICAL
DATES FOR FIXING THE VALUE OF THE DIVIDENDS FOR TAXATION WERE EITHER
THOSE WHEN THE RIGHTS WERE RECEIVED BY THE STOCKHOLDERS OR WHEN THE
STOCKHOLDERS FIRST BECAME ENTITLED TO EXERCISE THEM, RATHER THAN THE
TIMES WHEN THEY WERE ACTUALLY EXERCISED.  WE GRANTED CERTIORARI,
BECAUSE OF THE IMPORTANCE OF THE QUESTIONS IN THE ADMINISTRATION OF THE
REVENUE LAWS, AND THE DOUBTS WHICH HAVE BEEN RAISED AS TO THEIR
APPROPRIATE ANSWERS BY THE VARYING OPINIONS OF THE CIRCUIT COURTS OF
APPEALS.  COMPARE THE OPINIONS BELOW, RAMAPO, INC. V. COMMISSIONER, 84
F.(2D) 986(C.C.A.2D) AND COMMISSIONER V. MAYER, 86 F.(2D)
593(C.C.A.7TH) WITH HELVERING V. BARTLETT, 71 F.(2D) 598(C.C.A.4TH) AND
COMMISSIONER V. CUMMINGS, 77 F.(2D) 670(C.C.A.5TH). 

BY SECS. 111, 112 AND 113 OF THE REVENUE ACT OF 1928, PROFITS DERIVED
FROM THE PURCHASE OF PROPERTY, AS DISTINGUISHED FROM EXCHANGES OF
PROPERTY, ARE ASCERTAINED AND TAXED AS OF THE DATE OF ITS SALE OR OTHER
DISPOSITION BY THE PURCHASER.  PROFIT, IF ANY, ACCRUES TO HIM ONLY UPON
SALE OR DISPOSITION, AND THE TAXABLE INCOME IS THE DIFFERENCE BETWEEN
THE AMOUNT THUS REALIZED AND ITS COST, LESS ALLOWED DEDUCTIONS.  IT
FOLLOWS THAT ONE DOES NOT SUBJECT HIMSELF TO INCOME TAX BY THE MERE
PURCHASE OF PROPERTY, EVEN IF AT LESS THAN ITS TRUE VALUE, AND THAT
TAXABLE GAIN DOES NOT ACCRUE TO HIM BEFORE HE SELLS OR OTHERWISE
DISPOSES OF IT.  SPECIFIC PROVISIONS ESTABLISHING THIS BASIS FOR THE
TAXATION OF GAINS DERIVED FROM PURCHASED PROPERTY WERE INCLUDED IN THE
1916 AND EACH SUBSEQUENT REVENUE ACT AND ACCOMPANYING REGULATIONS. 

INCOME," WHICH IS THE BASIS OF DETERMINING TAXABLE NET INCOME, AND SEC.
115 DEFINES "DIVIDEND" AS "ANY DISTRIBUTION MADE BY A CORPORATION TO
ITS SHAREHOLDERS, WHETHER IN MONEY OR IN OTHER PROPERTY, OUT OF ITS
EARNINGS OR PROFITS."  WHILE A SALE OF CORPORATE ASSETS TO STOCKHOLDERS
IS, IN A LITERAL SENSE, A DISTRIBUTION OF ITS PROPERTY, SUCH A
TRANSACTION DOES NOT NECESSARILY FALL WITHIN THE STATUTORY DEFINITION
OF A DIVIDEND.  FOR A SALE TO STOCKHOLDERS MAY NOT RESULT IN ANY
DIMINUTION OF ITS NET WORTH AND IN THAT CASE CANNOT RESULT IN ANY
DISTRIBUTION OF ITS PROFITS. 

ON THE OTHER HAND SUCH A SALE, IF FOR SUBSTANTIALLY LESS THAN THE
VALUE OF THE PROPERTY SOLD, MAY BE AS EFFECTIVE A MEANS OF DISTRIBUTING
PROFITS AMONG STOCKHOLDERS AS THE FORMAL DECLARATION OF A DIVIDEND. 
THE NECESSARY CONSEQUENCE OF THE CORPORATE ACTION MAY BE IN SUBSTANCE
THE KIND OF A DISTRIBUTION TO STOCKHOLDERS WHICH IT IS THE PURPOSE OF
SEC. 115 TO TAX AS PRESENT INCOME TO STOCKHOLDERS, AND SUCH A
TRANSACTION MAY APPROPRIATELY BE DEEMED IN EFFECT THE DECLARATION OF A
DIVIDEND, TAXABLE TO THE EXTENT THAT THE VALUE OF THE DISTRIBUTED
PROPERTY EXCEEDS THE STIPULATED PRICE.  BUT THE BARE FACT THAT A
TRANSACTION, ON ITS FACE A SALE, HAS RESULTED IN A DISTRIBUTION OF SOME
OF THE CORPORATE ASSETS TO STOCKHOLDERS, GIVES RISE TO NO INFERENCE
THAT THE DISTRIBUTION IS A DIVIDEND WITHIN THE MEANING OF SEC. 115.  TO
TRANSFER IT FROM THE ONE CATEGORY TO THE OTHER, IT IS AT LEAST
NECESSARY TO MAKE SOME SHOWING THAT THE TRANSACTION IS IN PURPOSE OR
EFFECT USED AS AN IMPLEMENT FOR THE DISTRIBUTION OF CORPORATE EARNINGS
TO STOCKHOLDERS. 

THE FACTS STIPULATED AND THE FINDING OF THE FAIR MARKET VALUE OF THE
UNITED STOCK AT THE TIME OF THE ADOPTION OF THE FIRST PLAN FOR ITS
DISTRIBUTION ABUNDANTLY SUSTAIN THE BOARD'S CONCLUSION THAT THE
TRANSACTION - IN FORM A SALE - WAS NOT INTENDED TO BE THE MEANS OF A
DISTRIBUTION OF EARNINGS TO STOCKHOLDERS.  THERE MAY BE CASES IN WHICH
MARKET QUOTATIONS, AFTER THE SUBSCRIPTION RIGHTS HAVE BEEN ISSUED, ARE
PERSUASIVE EVIDENCE OF VALUE AS OF THE TIME WHEN THE PLAN WAS ADOPTED,
AND HENCE OF ITS PURPOSE AND PROBABLE EFFECT.  BUT WE CANNOT SAY THAT
THE BOARD HERE, IN FINDING THE VALUE OF THE SHARES OF THE NEWLY
ORGANIZED UNITED AS OF THE TIME OF ADOPTION OF THE FIRST PLAN, DID NOT
CONSIDER THE MARKET PRICES OF THE RIGHTS.  THE FINDINGS ARE INFERENCES
WHICH THE BOARD WAS FREE TO DRAW FROM ALL THE FACTS AND CIRCUMSTANCES
DISCLOSED BY THE RECORD.  SUCH A DETERMINATION OF FACT IS NOT TO BE SET
ASIDE BY A COURT EVEN IF UPON EXAMINATION OF THE EVIDENCE IT MIGHT DRAW
A DIFFERENT INFERENCE.  HELVERING V. RANKIN, 295 U.S. 123, 131, 132;
ELMHURST CEMETERY CO. V. COMMISSIONER, 300 U.S. 37.  WE ACCEPT THE
FINDINGS AS AT LEAST ESTABLISHING THAT THE PLAN WAS ADOPTED BY
SUPERPOWER IN GOOD FAITH AS A MEANS OF EFFECTING A SALE OF ITS ASSETS
TO STOCKHOLDERS AT FAIR MARKET VALUE.  HENCE THE ISSUE FOR DECISION, IN
SO FAR AS THE FIRST ALLOTMENT OF STOCK IS CONCERNED, IS NARROWED TO THE
QUESTION OF LAW WHETHER THE COMMITMENT OF SUPERPOWER, BY FORMAL ACTION
OF ITS BOARD, TO THE SALE OF UNITED STOCK AT ITS THEN FAIR MARKET VALUE
AND THE ENSUING DISTRIBUTION TO STOCKHOLDERS IS TAKEN OUT OF THE
CATEGORY OF SALES AND PLACED IN THAT OF DIVIDENDS BY THE FACT THAT,
PENDING EXECUTION OF THE PROJECT, RIGHTS TO SUBSCRIBE SOLD ON THE
EXCHANGE AT SUBSTANTIAL PRICES, OR THAT THE STOCK ITSELF SOLD AT PRICES
SUBSTANTIALLY ABOVE THE STIPULATED PURCHASE PRICE. 

FIRST.  THE MERE ISSUE OF RIGHTS TO SUBSCRIBE AND THEIR RECEIPT BY
STOCKHOLDERS, IS NOT A DIVIDEND.  NO DISTRIBUTION OF CORPORATE ASSETS
OR DIMINUTION OF THE NET WORTH OF THE CORPORATION RESULTS IN ANY
PRACTICAL SENSE.  EVEN THOUGH THE RIGHTS HAVE A MARKET OR EXCHANGE
VALUE, THEY ARE NOT DIVIDENDS WITHIN THE STATUTORY DEFINITION.  CF.
MILES V. SAFE DEPOSIT & T. CO., 259 U.S. 247; HELVERING V. SAN JOAQUIN
CO., 297 U.S. 496; HELVERING V. BARTLETT, SUPRA.  THEY ARE AT MOST
OPTIONS OR CONTINUING OFFERS, POTENTIAL SOURCES OF INCOME TO THE
STOCKHOLDERS THROUGH SALE OR THE EXERCISE OF THE RIGHTS.  TAXABLE
INCOME MIGHT RESULT FROM THEIR SALE, BUT DISTRIBUTION OF THE CORPORATE
PROPERTY COULD TAKE PLACE ONLY ON THEIR EXERCISE.  THE QUESTION, THEN,
IS WHETHER THE DISTRIBUTION WHICH RESULTS FROM THE EXERCISE OF THE
RIGHTS MUST BE REGARDED AS A DIVIDEND IF THE REASONABLE VALUE OF THE
PROPERTY AT THE TIME OF EXERCISE IS MORE THAN THE PURCHASE PRICE. 
SECOND.  WE THINK THAT A DISTRIBUTION OF ASSETS BY A CORPORATION TO ITS
STOCKHOLDERS BY MEANS OF A SALE, TO WHICH IT IS COMMITTED BY
APPROPRIATE CORPORATE ACTION AT A TIME WHEN THEIR SALE PRICE REPRESENTS
THEIR REASONABLE VALUE, IS NOT CONVERTED INTO A DIVIDEND BY THE MERE
CIRCUMSTANCE THAT LATER, AT THE TIME OF THEIR DELIVERY TO STOCKHOLDERS,
THEY HAVE A HIGHER VALUE.  THE MEANING OF SEC. 115 MUST BE SOUGHT IN
THE LIGHT OF THE SITUATIONS TO WHICH IT MUST BE APPLIED.  IT DOES NOT
PURPORT TO WITHDRAW CORPORATIONS AND THEIR STOCKHOLDERS WHOLLY FROM THE
OPERATION OF SECS. 111, 112 AND 113, TAXING THE PROFITS OF PURCHASERS. 
IT CANNOT BE TAKEN TO WITHHOLD FROM CORPORATIONS THE POWER AT THEIR OWN
ELECTION TO EFFECT, BY WORKABLE MEANS, SALES OF THEIR ASSETS TO
STOCKHOLDERS AT FAIR VALUE, SUBJECT TO THAT INCIDENCE OF TAXING
STATUTES WHICH USUALLY ATTENDS SALES.  THE DISTRIBUTION CONTEMPLATED
AND DEFINED BY IT AS A DIVIDEND IS ONE TO BE EFFECTED BY CORPORATE
ACTION.  HENCE, IN DETERMINING WHETHER A GIVEN TRANSACTION IS "SALE" OR
"DIVIDEND," THE CORPORATE ACTION WHICH RESULTS IN ONE OR THE OTHER MUST
BE SCRUTINIZED IN THE LIGHT OF THE CIRCUMSTANCES AT THE TIME WHEN THE
ACTION IS TAKEN, AND OF THE CONDITIONS UNDER WHICH IN PRACTICE IT MUST
BE TAKEN. 

THE ONLY FEASIBLE METHOD BY WHICH A CORPORATION OF LARGE MEMBERSHIP
CAN EFFECT A SALE OF ITS ASSETS TO STOCKHOLDERS IS BY TENDERING TO THEM
RIGHTS TO SUBSCRIBE, A METHOD WHOSE INDISPENSABLE FIRST STEP IS THE
ADOPTION, BY APPROPRIATE CORPORATE ACTION, OF THE TERMS OF THE OFFER. 
BETWEEN THE DATES OF THE FIRST STEP AND OF SUBSCRIPTION A SUBSTANTIAL
PERIOD OF TIME MUST ELAPSE, DURING WHICH THE RIGHTS MAY, AND OFTEN DO,
BECOME THE SUBJECT OF VIOLENT MARKET FLUCTUATIONS.  ANY VENDOR WHO
OFFERS PROPERTY FOR SALE AT A NAMED PRICE SIMILARLY CARRIES THE BURDEN
OF RISK THAT THE PROPERTY MAY INCREASE IN VALUE BETWEEN OFFER AND
ACCEPTANCE.  IF THE SALE IS BY EXECUTORY CONTRACT HE ALSO CARRIES THE
RISK BETWEEN PROMISE AND PERFORMANCE.  IT IS AN INSEPARABLE INCIDENT OF
EVERY SALE EXCEPT THOSE IN WHICH CONDITIONS ADMIT OF PAYMENT FOR THE
PROPERTY SIMULTANEOUSLY WITH ITS TENDER FOR SALE, A PROCEDURE WHICH MAY
NOT BE AVAILABLE TO A CORPORATION SEEKING TO SELL ITS PROPERTY TO
STOCKHOLDERS. 

IT IS A SOLECISM TO SPEAK OF A CORPORATION AS DISTRIBUTING ITS
PROFITS FOR THE SOLE REASON THAT, AFTER IT HAS UNAVOIDABLY ASSUMED THAT
RISK IN ORDER TO EFFECT A SALE OF ITS PROPERTY TO STOCKHOLDERS AT A
FAIR PRICE, THE PROPERTY INCREASES IN VALUE.  PRICE, WHICH IN THE
PRESENT CASE IS DECISIVE OF THE ISSUE, MUST BE DETERMINED IN THE LIGHT
OF THE SITUATION EXISTING WHEN PRICE IS FIXED.  IF THE OPTION PRICE IS
FAIR WHEN FIXED THE TRANSACTION IS A TENDER FOR A SALE AND NOT FOR A
DISTRIBUTION OF PROFITS - A DIVIDEND AS DEFINED BY SEC. 115.  IF,
PENDING EXECUTION OF THE PLAN, THERE WERE NO CHANGE IN VALUE OF THE
STOCK THE TRANSACTION WOULD THROUGHOUT CONCEDEDLY RETAIN ITS CHARACTER
AS A SALE.  ITS CHARACTER IS NOT ALTERED BY THE FLUCTUATIONS OF A
SPECULATIVE MARKET, AFTER THE CORPORATE ACTION WHICH DEFINES THE
CHARACTER OF THE TRANSACTION HAS BEEN TAKEN. 

WHEN THE CORPORATION HAS COMMITTED ITSELF TO A SALE OF ITS ASSETS TO
STOCKHOLDERS AT PRESENT MARKET VALUE THE EFFECT ON ITS BALANCE SHEET IS
THE SAME AS IN THE CASE OF OTHER VENDORS WHO IN VARIOUS WAYS ASSUME THE
RISK OF RISING PRICES PENDING THE CONSUMMATION OF THE SALE.  IN EVERY
CASE PURCHASERS MAY, AS A RESULT OF MARKET CHANGE, ACQUIRE PROPERTY AT
LESS THAN ITS VALUE AT THE DATE OF ACQUISITION.  BUT IN THE CASE OF THE
CORPORATION IT DOES NOT FOLLOW THAT THERE HAS BEEN A DISTRIBUTION OF
ITS PROFITS.  IT CAN HARDLY BE SAID THAT PROFITS ACCRUE TO A
CORPORATION FROM A FORTUITOUS GAIN IN MARKET VALUE, THE BENEFITS OF
WHICH IT HAS RELINQUISHED BEFORE THE GAIN OCCURS.  DISTRIBUTION OF
PROFITS IS NEITHER THE PURPOSE NOR EFFECT OF THE ACTION TAKEN BY THE
CORPORATION AND THERE IS NO ADEQUATE BASIS FOR SAYING THAT THE
TRANSACTION TO WHICH THE DIRECTORS COMMITTED THEIR CORPORATION WAS THE
DISTRIBUTION OF EARNINGS, AND HENCE A DIVIDEND RATHER THAN A FAIRLY
CONDUCTED SALE OF CORPORATE PROPERTY WITH ALL THE INCIDENTS WHICH
USUALLY ATTEND A SALE WHEN THE PRICE IS FIXED IN ADVANCE OF
PERFORMANCE.  IT IS DECISIVE OF THE PRESENT CASE, SO FAR AS THE FIRST
ALLOTMENT OF UNITED SHARES IS CONCERNED, THAT DISTRIBUTION OF CORPORATE
ASSETS, EFFECTED BY THE SALE, WAS NOT INTENDED TO BE A MEANS OF
DISTRIBUTING EARNINGS, AND THAT THE PRICE WHEN FIXED REPRESENTED THE
FAIR MARKET VALUE OF THE PROPERTY TO BE DISTRIBUTED. 

THERE HAS BEEN NO FINDING, EITHER BY THE COMMISSIONER OR THE BOARD,
OF THE FAIR MARKET VALUE OF THE UNITED STOCK IN MAY OR OF THE
COMMONWEALTH & SOUTHERN IN JUNE, THE MONTHS WHEN THE PLANS FOR THE
SECOND AND THIRD ALLOTMENTS OF THE SHARES WERE ADOPTED.  THE FINDING OF
THE BOARD THAT THE FACTS AS STIPULATED WERE NOT SUFFICIENT TO ESTABLISH
FAIR MARKET VALUE OF THE SHARES ON THOSE DATES FURNISH SUFFICIENT
SUPPORT FOR ITS CONCLUSION THAT THERE WAS NO BASIS FOR TREATING THE
TRANSACTIONS, WHICH WERE ON THEIR FACE SALES, AS DISTRIBUTIONS OF
EARNINGS AND HENCE DIVIDENDS AS DEFINED BY SEC. 115. 

THE WRIT IN NO. 59 IS DISMISSED AND IN NO. 19 THE JUDGMENT IS
REVERSED. 
..END :









DODGE V. BOARD OF EDUCATION, 302 U.S. 74 


NO. 5.  ARGUED APRIL 28, 1937.  REARGUED OCTOBER 14, 1937.  - DECIDED
NOVEMBER 8, 1937.  - 364 ILL. 547 - 5 N.E.(2D) 84, AFFIRMED. 


1.  AN ACT MERELY FIXING THE TERMS OR THE TENURES OF PUBLIC EMPLOYEES
IS PRESUMPTIVELY NOT INTENDED TO CREATE A VESTED RIGHT IN THE
INCUMBENT, BUT MERELY TO DECLARE A POLICY TO BE PURSUED UNTIL THE
LEGISLATURE SHALL ORDAIN OTHERWISE.  P. 78. 

2. HE WHO ASSERTS THE CREATION OF A CONTRACT WITH THE STATE IN SUCH A
CASE HAS THE BURDEN OF OVERCOMING THE PRESUMPTION.  P. 79. 

3.  WHILE THIS COURT, IN APPLYING THE CONTRACT CLAUSE OF THE
CONSTITUTION, IS REQUIRED TO REACH AN INDEPENDENT JUDGMENT AS TO THE
EXISTENCE AND NATURE OF THE ALLEGED CONTRACT, GREAT WEIGHT IS GIVEN TO
THE VIEWS OF THE HIGHEST COURT OF THE STATE.  P. 79. 

4.  DECISION OF SUPREME COURT OF ILLINOIS CONSTRUING "AN ACT TO
PROVIDE FOR COMPULSORY AND VOLUNTARY RETIREMENT OF TEACHERS,  ...  AND
THE PAYMENT OF RETIREMENT ANNUITIES," IN PARI MATERIA WITH EARLIER LAWS
AND DECISIONS, AS NOT INTENDING TO CREATE CONTRACTS OR VESTED RIGHTS,
HELD A REASONABLE CONSTRUCTION TO BE ACCEPTED BY THIS COURT WHEN
QUESTIONED UNDER THE CONTRACT CLAUSE OF THE CONSTITUTION.  P. 79. 

5.  INTERCHANGEABILITY OF THE TERMS "PENSIONS," "BENEFITS," AND
"ANNUITIES," IN ACTS OF ILLINOIS DEALING WITH RETIREMENT OF TEACHERS. 
P. 81. 

DODGE ET AL. V. BOARD OF EDUCATION OF CHICAGO ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

APPEAL FROM A DECREE AFFIRMING THE DISMISSAL OF THE BILL IN A SUIT TO
PREVENT THE ENFORCEMENT OF A LAW ALLEGED TO IMPAIR THE CONTRACT RIGHTS
OF SCHOOL TEACHERS IN RESPECT OF RETIREMENT PRIVILEGES AND PAY. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE APPELLANTS CHALLENGE AN ACT OF ILLINOIS WHICH THEY ASSERT IMPAIRS
THE OBLIGATION OF CONTRACTS IN CONTRAVENTION OF ARTICLE I, SECTION 10,
OF THE CONSTITUTION OF THE UNITED STATES AND DEPRIVES THEM OF A VESTED
RIGHT WITHOUT DUE PROCESS CONTRARY TO THE FOURTEENTH AMENDMENT.  THE
STATUTE DECREASED THE AMOUNTS OF ANNUITY PAYMENTS TO RETIRED TEACHERS
IN THE PUBLIC SCHOOLS OF CHICAGO.  FN1 

SINCE 1895 THE STATE HAS HAD LEGISLATION CREATING A TEACHERS' PENSION
AND RETIREMENT FUND, ORIGINALLY THE FRUIT OF TEACHERS' CONTRIBUTIONS
AND GIFTS OR LEGACIES, BUT LATER AUGMENTED BY ALLOTMENTS FROM INTEREST
RECEIVED AND FROM TAXES.  WITH THIS FUND AND THE BENEFIT PAYMENTS
THEREUNDER WE ARE NOT CONCERNED. 

PRIOR TO 1917 TEACHERS IN THE CHICAGO SCHOOLS WERE EMPLOYED FOR SUCH
TERMS AS THE BOARD OF EDUCATION MIGHT FIX.  FN2  IN THAT YEAR AN ACT
WAS PASSED PROVIDING FOR A PROBATIONARY PERIOD OF THREE YEARS AND
PROHIBITING REMOVAL THEREAFTER EXCEPT FOR CAUSE.  FN3 

IN 1926 AN ACT KNOWN AS THE "MILLER LAW,"  FN4  BECAME EFFECTIVE. 
THIS PROVIDED FOR COMPULSORY RETIREMENT AND FOR THE PAYMENT OF
ANNUITIES TO RETIRED TEACHERS.  BY SEC. 1 THE BOARD OF EDUCATION WAS
DIRECTED TO RETIRE TEACHERS FROM ACTIVE SERVICE ON FEBRUARY 1 AND
AUGUST 1 OF EACH YEAR ACCORDING TO THE FOLLOWING PROGRAM:  IN 1926
THOSE SEVENTY-FIVE YEARS OF AGE OR OVER, IN 1927 THOSE SEVENTY-FOUR
YEARS OF AGE OR OVER, IN 1928 THOSE SEVENTY-THREE YEARS OF AGE OR OVER,
IN 1929 THOSE SEVENTY-TWO YEARS OF AGE OR OVER, AND IN 1930, AND IN
EACH YEAR THEREAFTER, THOSE SEVENTY YEARS OF AGE OR OVER.  SECTION 2
PROVIDED: 

"EACH PERSON SO RETIRED FROM ACTIVE SERVICE WHO SERVED IN THE PUBLIC
SCHOOLS OF SUCH CITY FOR TWENTY OR MORE YEARS PRIOR TO SUCH RETIREMENT,
SHALL BE PAID THE SUM OF FIFTEEN HUNDRED DOLLARS ($1,500.00) ANNUALLY
AND FOR LIFE FROM THE DATE OF SUCH RETIREMENT FROM THE MONEY DERIVED
FROM THE GENERAL TAX LEVY FOR EDUCATIONAL PURPOSES  ..." 

THERE WERE TWO PROVISOS, THE ONE REQUIRING THAT THE ANNUITANT SHOULD
BE SUBJECT TO CALL BY THE SUPERINTENDENT OF SCHOOLS FOR CONSULTATION
AND ADVISORY SERVICE, AND THE OTHER DECLARING THAT THE ANNUITY GRANTED
BY THE ACT WAS NOT TO BE IN LIEU OF, BUT IN ADDITION TO, THE RETIREMENT
ALLOWANCE PAYABLE UNDER EXISTING LEGISLATION. 

IN 1927 A THIRD SECTION WAS ADDED  FN5  PERMITTING TEACHERS WHO HAD
SERVED FOR TWENTY-FIVE YEARS OR MORE, AND WERE SIXTY-FIVE YEARS OF AGE
OR OVER, WHO HAD NOT REACHED THE AGE OF COMPULSORY RETIREMENT, TO BE
RETIRED UPON REQUEST AND TO BE PAID FROM ONE THOUSAND DOLLARS TO
FIFTEEN HUNDRED DOLLARS PER ANNUM DEPENDING UPON AGE AT RETIREMENT. 

THE APPELLANTS FALL INTO THREE CLASSES:  THOSE WHO WERE COMPULSORILY
RETIRED UNDER THE MILLER LAW; THOSE WHO VOLUNTARILY RETIRED UNDER THE
LAW AS AMENDED; AND THOSE ELIGIBLE FOR VOLUNTARY RETIREMENT WHO HAD
SIGNIFIED THEIR ELECTION TO RETIRE PRIOR TO JULY 1935. 

JULY 12, 1935, A FURTHER AMENDMENT OF THE MILLER LAW WAS ADOPTED  FN6
REQUIRING THE BOARD PRESENTLY TO RETIRE TEACHERS THEN IN SERVICE WHO
WERE SIXTY-FIVE YEARS OF AGE OR OVER AND IN THE FUTURE TO RETIRE
TEACHERS AS THEY ATTAINED THAT AGE.  EACH PERSON SO RETIRED WAS TO BE
PAID FIVE HUNDRED DOLLARS ANNUALLY FOR LIFE FROM THE DATE OF
RETIREMENT.  THE PROVISIONS THAT SUCH TEACHERS SHOULD HOLD THEMSELVES
AVAILABLE FOR ADVISORY SERVICE AND CONSULTATION AND THAT THE ANNUITY
PAYMENTS SHOULD BE IN ADDITION TO THOSE MADE TO RETIRED TEACHERS
PURSUANT TO OTHER LEGISLATION WERE RETAINED.  SECTION 3 OF THE MILLER
LAW, PERMITTING VOLUNTARY RETIREMENT BETWEEN THE AGES OF SIXTY-FIVE AND
SEVENTY, WAS REPEALED.  AS CONSTRUED BY THE STATE SUPREME COURT, THE
NEW LAW REDUCED TO $500 THE ANNUITIES OF TEACHERS THERETOFORE RETIRED,
OR ELIGIBLE FOR RETIREMENT UNDER THE MILLER LAW, AS WELL AS THOSE TO BE
RETIRED SUBSEQUENT TO ITS ENACTMENT. 

SOME OF THE APPELLANTS FILED A CLASS BILL, IN WHICH THE OTHERS
INTERVENED AS CO-PLAINTIFFS, ALLEGING THAT THEIR RIGHTS TO ANNUITIES
WERE VESTED RIGHTS OF WHICH THEY COULD NOT BE DEPRIVED; THAT THE MILLER
LAW CONSTITUTED AN OFFER WHICH EACH OF THEM HAD ACCEPTED BY REMAINING
IN SERVICE UNTIL COMPULSORY RETIREMENT OR BY RETIRING; THAT THE
OBLIGATION OF THE CONTRACT HAD THUS BEEN PERFECTED AND ITS ATTEMPTED
IMPAIRMENT BY THE LATER ENACTMENT WAS INEFFECTIVE; AND PRAYING THAT THE
BOARD BE COMMANDED TO RESCIND ACTION TAKEN PURSUANT TO THE ACT OF 1935
AND ENJOINED FROM COMPLYING WITH ITS PROVISIONS.  THE APPELLEE BOARD OF
EDUCATION FILED AN ANSWER IN WHICH IT DENIED THE EXISTENCE OF A
CONTRACT AND ASSERTED THAT THE PAYMENTS TO BE MADE TO APPELLANTS WERE
PENSIONS, SUBJECT TO REVOCATION OR ALTERATION AT THE WILL OF THE
LEGISLATURE.  THE APPELLEE CITY OF CHICAGO FILED A MOTION TO DISMISS
FOR WANT OF EQUITY.  AFTER A HEARING, AT WHICH TESTIMONY WAS TAKEN ON
BEHALF OF THE APPELLANTS, THE TRIAL COURT DISMISSED THE BILL. 

THE SUPREME COURT OF THE STATE AFFIRMED, HOLDING THAT,
NOTWITHSTANDING THE PAYMENTS UNDER THE MILLER LAW ARE DENOMINATED
ANNUITIES, THEY CANNOT BE DIFFERENTIATED FROM SIMILAR PAYMENTS DIRECTED
BY LAW TO BE MADE TO OTHER RETIRED CIVIL SERVANTS OF THE STATE AND HER
MUNICIPALITIES, AND ARE IN FACT PENSIONS OR GRATUITIES INVOLVING NO
AGREEMENT OF THE PARTIES AND SUBJECT TO MODIFICATION OR ABOLITION AT
THE PLEASURE OF THE LEGISLATURE.  FN7 

THE PARTIES AGREE THAT A STATE MAY ENTER INTO CONTRACTS WITH
CITIZENS, THE OBLIGATION OF WHICH THE LEGISLATURE CAN NOT IMPAIR BY
SUBSEQUENT ENACTMENT.  THEY AGREE THAT LEGISLATION WHICH MERELY
DECLARES A STATE POLICY, AND DIRECTS A SUBORDINATE BODY TO CARRY IT
INTO EFFECT, IS SUBJECT TO REVISION OR REPEAL IN THE DISCRETION OF THE
LEGISLATURE.  THE POINT OF CONTROVERSY IS AS TO THE CATEGORY INTO WHICH
THE MILLER LAW FALLS. 

IN DETERMINING WHETHER A LAW TENDERS A CONTRACT TO A CITIZEN IT IS OF
FIRST IMPORTANCE TO EXAMINE THE LANGUAGE OF THE STATUTE.  IF IT
PROVIDES FOR THE EXECUTION OF A WRITTEN CONTRACT ON BEHALF OF THE STATE
THE CASE FOR AN OBLIGATION BINDING UPON THE STATE IS CLEAR.  FN8
EQUALLY CLEAR IS THE CASE WHERE A STATUTE CONFIRMS A SETTLEMENT OF
DISPUTED RIGHTS AND DEFINES ITS TERMS.  FN9  ON THE OTHER HAND, AN ACT
MERELY FIXING SALARIES OF OFFICERS CREATES NO CONTRACT IN THEIR FAVOR
AND THE COMPENSATION NAMED MAY BE ALTERED AT THE WILL OF THE
LEGISLATURE.  FN10  THIS IS TRUE ALSO OF AN ACT FIXING THE TERM OR
TENURE OF A PUBLIC OFFICER OR AN EMPLOYEE OF A STATE AGENCY.  FN11  THE
PRESUMPTION IS THAT SUCH A LAW IS NOT INTENDED TO CREATE PRIVATE
CONTRACTUAL OR VESTED RIGHTS BUT MERELY DECLARES A POLICY TO BE PURSUED
UNTIL THE LEGISLATURE SHALL ORDAIN OTHERWISE.  HE WHO ASSERTS THE
CREATION OF A CONTRACT WITH THE STATE IN SUCH A CASE HAS THE BURDEN OF
OVERCOMING THE PRESUMPTION.  FN12  IF, UPON A CONSTRUCTION OF THE
STATUTE, IT IS FOUND THAT THE PAYMENTS ARE GRATUITIES, INVOLVING NO
AGREEMENT OF THE PARTIES, THE GRANT OF THEM CREATES NO VESTED RIGHT. 
FN13 

THE SUPREME COURT OF ILLINOIS CONCLUDED THAT NEITHER THE LANGUAGE OF
THE MILLER LAW, NOR THE CIRCUMSTANCES OF ITS ADOPTION, EVINCED AN
INTENT ON THE PART OF THE LEGISLATURE TO CREATE A BINDING CONTRACT WITH
THE TEACHERS OF THE STATE.  WHILE WE ARE REQUIRED TO REACH AN
INDEPENDENT JUDGMENT AS TO THE EXISTENCE AND NATURE OF THE ALLEGED
CONTRACT, WE GIVE GREAT WEIGHT TO THE VIEWS OF THE HIGHEST COURT OF THE
STATE TOUCHING THESE MATTERS.  FN14 

THE MILLER LAW IS ENTITLED "AN ACT TO PROVIDE FOR COMPULSORY AND
VOLUNTARY RETIREMENT OF TEACHERS,  ...  AND THE PAYMENT OF RETIREMENT
ANNUITIES."  THE RELEVANT WORDS OF SEC. 1 ARE:  "IN EVERY CITY IN THIS
STATE  ...  THE BOARD OF EDUCATION OF SUCH CITY SHALL RETIRE FROM
ACTIVE SERVICE  ...  ALL TEACHERS, (OF A GIVEN AGE)  ....  "  SECTION 2
PROVIDES:  "EACH PERSON SO RETIRED  ...  SHALL BE PAID THE SUM OF
FIFTEEN HUNDRED DOLLARS ($1,500) ANNUALLY AND FOR LIFE FROM THE DATE OF
SUCH RETIREMENT  ....  "  SECTION 3 PROVIDES THAT PERSONS SIXTY-FIVE
YEARS OF AGE OR OVER "SHALL UPON THEIR OWN REQUEST, BE RETIRED  ...
AND THEREAFTER BE PAID ANNUITIES FOR LIFE ..."  APPELLANTS ADMIT THAT
THIS IS NOT THE NORMAL LANGUAGE OF A CONTRACT BUT RELY ON THE
CIRCUMSTANCE THAT THEY, AS TEACHERS, ESPECIALLY THOSE WHO VOLUNTARILY
RETIRED WHEN OTHERWISE THEY WOULD NOT HAVE BEEN REQUIRED SO TO DO,
RIGHTLY UNDERSTOOD THE STATE WAS PLEDGING ITS FAITH THAT IT WOULD NOT
RECEDE FROM THE OFFER HELD OUT TO THEM BY THE STATUTE AS AN INDUCEMENT
TO BECOME TEACHERS AND TO RETIRE AND THAT THE USE OF THE TERM
"ANNUITIES" RATHER THAN "PENSIONS" WAS INTENDED AS A FURTHER ASSURANCE
OF A VESTED CONTRACTUAL RIGHT.  THE SUPREME COURT ANSWERED THIS
CONTENTION BY REFERRING TO THE FACT THAT FOR YEARS PRIOR TO THE
ADOPTION OF THE MILLER LAW, AND BY A UNIFORM COURSE OF DECISION, IT HAD
HELD THAT ACTS INDISTINGUISHABLE FROM THE MILLER LAW, ESTABLISHING
SIMILAR BENEFIT SYSTEMS, DID NOT CREATE CONTRACTS OR VESTED RIGHTS AND
THAT THE STATE WAS FREE TO ALTER, AMEND, AND REPEAL SUCH LAWS EVEN
THOUGH THE EFFECT OF ITS ACTION WAS TO DEPRIVE THE PENSIONER OR
ANNUITANT, FOR THE FUTURE, OF BENEFITS THEN ENJOYED.  THE CASES TO
WHICH THE COURT REFERS SO DECIDE.  FN15  THE COURT FURTHER HELD THAT
THE LEGISLATURE PRESUMABLY HAD THE DOCTRINE OF THESE CASES IN MIND WHEN
IT ADOPTED THE ACT NOW UNDER REVIEW AND THAT THE APPELLANTS SHOULD HAVE
KNOWN THAT NO DISTINCTION WAS INTENDED BETWEEN THE RIGHTS CONFERRED ON
THEM AND THOSE ADJUDICATED UNDER LIKE LAWS WITH RESPECT TO OTHER
RETIRED CIVIL SERVANTS.  WE CANNOT SAY THAT THIS WAS ERROR. 

THE APPELLANTS URGE THAT THE MILLER LAW, CONTRARY TO MOST OF THE ACTS
THAT PRECEDED IT, OMITTED TO USE THE WORD "PENSION" AND INSTEAD USED
THE WORD "ANNUITY," A CHOICE OF TERMINOLOGY BASED ON CONTRACT RATHER
THAN ON GIFT, AND IMPLYING A CONSIDERATION RECEIVED AS WELL AS
OFFERED.  THE STATE SUPREME COURT ANSWERED THE CONTENTION BY SAYING: 

"WE ARE UNABLE TO SEE THE DISTINCTION.  THE PLAN OF PAYMENT IS THE
SAME, THE PURPOSES ARE EVIDENTLY THE SAME, AND THE USE OF THE TERM
'ANNUITY' INSTEAD OF 'PENSION' - WHICH IS BUT AN ANNUITY - DOES NOT
SEEM TO US TO RESULT IN THE DISTINCTION FOR WHICH COUNSEL FOR
APPELLANTS CONTEND." 

WE ARE OF THE SAME OPINION, PARTICULARLY AS AN EXAMINATION OF THE
ILLINOIS STATUTES INDICATES THAT, IN ACTS DEALING WITH THE SUBJECT, THE
LEGISLATURE HAS APPARENTLY USED THE TERMS "PENSIONS," "BENEFITS," AND
"ANNUITIES" INTERCHANGEABLY AS HAVING THE SAME CONNOTATION.  FN16 

THE JUDGMENT IS AFFIRMED. 

FN1  THE ACT EMBRACES TEACHERS, PRINCIPALS, DISTRICT SUPERINTENDENTS,
AND ASSISTANT SUPERINTENDENTS, AND RETIRED MEMBERS OF THOSE CLASSES ARE
AMONG THE APPELLANTS.  FOR THE SAKE OF BREVITY ALL WILL BE DENOMINATED
TEACHERS. 

FN2  ACT OF JUNE 12, 1909, SEC. 133, LAWS OF 1909, P. 380. 

FN3  ACT OF APR. 20, 1917, SECS. 138 AND 161, LAWS OF 1917, PP. 730,
731; SMITH-HURD ILL. REV. STATS., 1925, C. 122, PAR. 186, SEC. 161. 

FN4  CAHILL'S ILL. REV. STATS, 1927, C. 122, PAR. 269. 

FN5  ACT OF JUNE 24, 1927, LAWS OF 1927, P. 792; CAHILL'S ILL. REV
STATS. 1927, C. 122, PAR. 269(3). 

FN6  ACT OF JULY 12, 1935, LAWS OF 1935, P. 1378; SMITH-HURD ILL.
REV. STATS. 1935, C. 122, SECS. 614A-614C. 

FN7  364 ILL. 547; 5 N.E. (2D) 84. 

FN8  HALL V. WISCONSIN, 103 U.S. 5. 

FN9  NEW JERSEY V. WILSON, 7 CRANCH 164; NEW JERSEY V. YARD, 95 U.S.
104. 

FN10  BUTLER V. PENNSYLVANIA, 10 HOW.  402; UNITED STATES V. FISHER,
109 U.S. 143; FISK V. JEFFERSON POLICE JURY, 116 U.S. 131, 133;
MISSISSIPPI EX REL. ROBERTSON V. MILLER, 276 U.S. 174, 178. 

FN11  CRENSHAW V. UNITED STATES, 134 U.S. 99; PHELPS V. BOARD OF
EDUCATION, 300 U.S. 319. 

FN12  RECTOR OF CHRIST CHURCH V. COUNTY OF PHILADELPHIA, 24 HOW. 
300, 302; TUCKER V. FERGUSON, 22 WALL.  527, 575; NEW JERSEY V. YARD,
SUPRA; NEWTON V. COMMISSIONERS, 100 U.S. 548, 561; WISCONSIN & MICHIGAN
RY. CO. V. POWERS, 191 U.S. 379, 387. 

FN13  PENNIE V. REIS, 132 U.S. 464; LYNCH V. UNITED STATES, 292 U.S.
571, 577, AND CASES CITED. 

FN14  LARSON V. SOUTH DAKOTA, 278 U.S. 429, 433; PHELPS V. BOARD OF
EDUCATION, SUPRA, AND CASES CITED. 

FN15  EDDY V. MORGAN, 216 ILL. 437, 449; 75 N.E. 174; PECOY V.
CHICAGO, 265 ILL. 78-80; 106 N.E. 435; BEUTEL V. FOREMAN, 288 ILL. 106;
123 N.E. 270.  THE SAME PRINCIPLES HAVE BEEN CONSISTENTLY ANNOUNCED
SINCE 1926.  PEOPLE V. RETIREMENT BOARD, 326 ILL. 579; 158 N.E. 220;
PEOPLE V. HANSON, 330 ILL. 79; 161 N.E. 145; MCCANN V. RETIREMENT
BOARD, 331 ILL. 193; 162 N.E. 859.  APPELLANTS URGE THAT THE AUTHORITY
OF THE FOREGOING CASES HAS BEEN SHAKEN BY PORTER V. LOEHR, 332 ILL.
353; 163 N.E. 689; AND DEWOLF V. BOWLEY, 355 ILL. 530, BUT THESE CASES
DID NOT DEAL WITH THE QUESTION PRESENTED IN THE INSTANT CASE, AND WHAT
WAS SAID WITH RESPECT TO THE NATURE OF PENSIONS WAS IN CONNECTION WITH
PROVISIONS OF THE STATE CONSTITUTION.    FN16  IN ACTS CREATING FUNDS
THROUGH ENFORCED CONTRIBUTIONS OF STATE AND MUNICIPAL EMPLOYES, OR OUT
OF TAXES, OR BOTH, THE TITLES AND THE SUBSTANTIVE PROVISIONS FOR
BENEFITS TO RETIRED EMPLOYES DISCLOSE THE USE OF THE TERMS "PENSIONS"
AND "ANNUITIES" INTERCHANGEABLY TO DESCRIBE THE PAYMENTS TO BE MADE
FROM THE FUND.  ACT OF MAY 24, 1877, LAWS, P. 62; ACT OF MAY 10, 1879,
LAWS, P. 72; ACT OF MAY 12, 1905, LAWS, P. 309; ACT OF MAY 24, 1907,
LAWS, P. 529; ACT OF JUNE 14, 1909, LAWS, P. 133; ACT OF JUNE 27, 1913,
LAWS, P. 598; ACT OF JUNE 29, 1915, LAWS, P. 465; ACT OF MAY 27, 1915,
LAWS, P. 649; ACT OF JUNE 14, 1917, LAWS, P. 748; ACT OF JULY 11, 1919,
LAWS, P. 700; ACT OF JULY 11, 1919, LAWS, P. 743; ACT OF JUNE 29, 1921,
LAWS, P. 203. 
..END :












GROMAN V. COMMISSIONER, 302 U.S. 82 


NO. 21.  ARGUED OCTOBER 21, 22, 1937.  - DECIDED NOVEMBER 8, 1937.  - 86
F.(2D) 670, AFFIRMED. 


1.  SECTION 112(I)(2) OF THE REVENUE ACT OF 1928 DECLARING THAT THE
TERM PARTY TO A REORGANIZATION "INCLUDES" A CORPORATION RESULTING FROM
A REORGANIZATION, AND BOTH CORPORATIONS WHEN ONE ACQUIRES SPECIFIED
PROPORTIONS OF STOCK OF ANOTHER, IS NOT AN EXCLUSIVE DEFINITION, BUT
RATHER IS INTENDED TO ENLARGE THE MEANING OF THE TERM BEYOND ITS
ORDINARY CONNOTATION.  P. 85. 

2.  PURSUANT TO AN AGREEMENT BETWEEN A CORPORATION (G) AND
SHAREHOLDERS OF ANOTHER CORPORATION (I):   - G FORMED A NEW CORPORATION
(O), SUBSCRIBING FOR ITS COMMON STOCK AND PAYING FOR IT WITH CASH AND
G'S OWN PREFERENCE SHARES; I'S SHAREHOLDERS SOLD THEIR SHARES TO O AND
RECEIVED FROM O A CONSIDERATION MADE UP OF PREFERENCE SHARES OF G, AND
OF O AND CASH; I THEN TRANSFERRED ITS ASSETS TO O AND WAS DISSOLVED. 
HELD THAT G WAS NOT "A PARTY" TO THE REORGANIZATION AND THAT THE SHARES
OF G'S PREFERENCE STOCK RECEIVED BY I SHAREHOLDERS FROM O WERE A BASIS
FOR COMPUTING TAXABLE GAIN.  REVENUE ACT OF 1928, SEC. 112.  P. 88. 

GROMAN V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 301 U.S. 677, TO REVIEW A JUDGMENT OVERRULING AN ORDER OF
THE BOARD OF TAX APPEALS AND SUSTAINING AN INCOME TAX DEFICIENCY
ASSESSMENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CASE INVOLVES THE MEANING AND SCOPE OF THE PHRASE "A PARTY TO A
REORGANIZATION" AS USED IN SEC. 112 OF THE REVENUE ACT OF 1928.  FN1 

JANUARY 29, 1929, THE PETITIONER, AND ALL OTHER SHAREHOLDERS OF
METALS REFINING COMPANY, AN INDIANA CORPORATION, HEREINAFTER DESIGNATED
INDIANA, ENTERED INTO A CONTRACT WITH THE GLIDDEN COMPANY, AN OHIO
CORPORATION, RECITING THAT THE SHAREHOLDERS OF INDIANA WERE DESIROUS OF
MERGING AND CONSOLIDATING THE PROPERTIES OF THEIR COMPANY WITH GLIDDEN
AND WITH A CORPORATION GLIDDEN WAS TO ORGANIZE UNDER THE LAWS OF OHIO,
WHICH CORPORATION WE SHALL CALL OHIO.  THE SHAREHOLDERS COVENANTED THAT
THEY WOULD ASSIGN THEIR SHARES TO OHIO, WHICH WAS TO HAVE A SPECIFIED
CAPITAL STRUCTURE DIVIDED INTO PREFERRED AND COMMON SHARES, AND GLIDDEN
COVENANTED THAT IT WOULD ISSUE AND DELIVER, OR CAUSE TO BE ISSUED AND
DELIVERED, TO THE SHAREHOLDERS A STATED NUMBER OF SHARES OF ITS OWN
PRIOR PREFERENCE STOCK AT AN AGREED VALUATION, A STATED NUMBER OF
SHARES OF THE PREFERRED STOCK OF OHIO, ALSO AT AN AGREED VALUATION, AND
SUFFICIENT CASH TO EQUAL THE APPRAISED VALUE OF INDIANA'S ASSETS AS OF
MARCH 1, 1929, AND THAT, AFTER THE EXCHANGE OF STOCK, GLIDDEN WOULD
CAUSE INDIANA TO TRANSFER ITS ASSETS TO OHIO. 

GLIDDEN ORGANIZED OHIO AND BECAME THE OWNER OF ALL ITS COMMON STOCK
BUT NONE OF ITS PREFERRED STOCK.  PURSUANT TO THE CONTRACT THE
SHAREHOLDERS OF INDIANA TRANSFERRED THEIR STOCK TO OHIO AND RECEIVED
THEREFOR A TOTAL CONSIDERATION OF $1,207,016 CONSISTING OF GLIDDEN
PRIOR PREFERENCE STOCK VALUED AT $533,980, SHARES OF THE PREFERRED
STOCK OF OHIO VALUED AT $500,000, AND $153,036 IN CASH.  INDIANA THEN
TRANSFERRED ITS ASSETS TO OHIO AND WAS DISSOLVED. 

AS A RESULT OF THE REORGANIZATION PETITIONER RECEIVED SHARES OF
GLIDDEN STOCK, SHARES OF OHIO STOCK, AND $17,293 IN CASH.  IN HIS
RETURN FOR 1929 HE INCLUDED THE $17,293 AS INCOME RECEIVED BUT IGNORED
THE SHARES OF GLIDDEN AND OF OHIO AS STOCK RECEIVED IN EXCHANGE IN A
REORGANIZATION.  THE RESPONDENT RULED THAT GLIDDEN WAS NOT A PARTY TO A
REORGANIZATION WITHIN THE MEANING OF THE REVENUE ACT, TREATED THE
TRANSACTION AS A TAXABLE EXCHANGE TO THE EXTENT OF THE CASH AND SHARES
OF GLIDDEN, AND DETERMINED A DEFICIENCY OF $7,420.  UPON RECEIPT OF
NOTICE TO THIS EFFECT THE PETITIONER APPEALED TO THE BOARD OF TAX
APPEALS WHICH REVERSED THE COMMISSIONER, HOLDING THAT GLIDDEN WAS A
PARTY TO A REORGANIZATION.  THE CIRCUIT COURT OF APPEALS REVERSED THE
BOARD.  FN2 WE GRANTED THE WRIT OF CERTIORARI BECAUSE OF AN ALLEGED
CONFLICT OF DECISION.  FN3 

OR LOSS SHALL BE RECOGNIZED IF STOCK OR SECURITIES IN A CORPORATION A
PARTY TO A REORGANIZATION ARE, IN PURSUANCE OF THE PLAN OF
REORGANIZATION, EXCHANGED SOLELY FOR STOCK OR SECURITIES IN SUCH
CORPORATION OR IN ANOTHER CORPORATION A PARTY TO THE REORGANIZATION." 
IF THE TRANSACTION INVOLVES THE RECEIPT OF SUCH STOCK OR SECURITIES AND
"ALSO OF OTHER PROPERTY OR MONEY" THEN THE GAIN, IF ANY, IS TO BE
RECOGNIZED IN AN AMOUNT NOT IN EXCESS OF THE SUM OF SUCH MONEY AND THE
FAIR MARKET VALUE OF SUCH OTHER PROPERTY.  SECTION 112(C)(1). 

MERGER OR CONSOLIDATION (INCLUDING THE ACQUISITION BY ONE CORPORATION
OF AT LEAST A MAJORITY OF THE VOTING STOCK AND AT LEAST A MAJORITY OF
THE TOTAL NUMBER OF SHARES OF ALL OTHER CLASSES OF STOCK OF ANOTHER
CORPORATION, OR SUBSTANTIALLY ALL THE PROPERTIES OF ANOTHER
CORPORATION), OR (B) A TRANSFER BY A CORPORATION OF ALL OR A PART OF
ITS ASSETS TO ANOTHER CORPORATION IF IMMEDIATELY AFTER THE TRANSFER THE
TRANSFEROR OR ITS STOCKHOLDERS OR BOTH ARE IN CONTROL OF THE
CORPORATION TO WHICH THE ASSETS ARE TRANSFERRED, OR (C) A
RECAPITALIZATION, OR (D) A MERE CHANGE IN IDENTITY, FORM, OR PLACE OF
ORGANIZATION, HOWEVER EFFECTED."  SUBSECTION (2) IS:  "THE TERM 'A
PARTY TO A REORGANIZATION' INCLUDES A CORPORATION RESULTING FROM A
REORGANIZATION AND INCLUDES BOTH CORPORATIONS IN THE CASE OF AN
ACQUISITION BY ONE CORPORATION OF AT LEAST A MAJORITY OF THE VOTING
STOCK AND AT LEAST A MAJORITY OF THE TOTAL NUMBER OF SHARES OF ALL
OTHER CLASSES OF STOCK OF ANOTHER CORPORATION." 

IT IS AGREED THAT UNDER THE PLAIN TERMS OF THE STATUTE THE CASH
RECEIVED BY THE PETITIONER WAS INCOME, AND THAT AS THE STOCK OF OHIO
WAS OBTAINED IN PART PAYMENT FOR THAT OF INDIANA, THE EXCHANGE, TO THAT
EXTENT, DID NOT GIVE RISE TO INCOME TO BE INCLUDED IN THE COMPUTATION
OF PETITIONER'S TAX. 

THE QUESTION IS WHETHER THAT PORTION OF THE CONSIDERATION CONSISTING
OF PRIOR PREFERENCE SHARES OF GLIDDEN SHOULD BE RECOGNIZED IN
DETERMINING PETITIONER'S TAXABLE GAIN.  THE DECISION OF THIS QUESTION
DEPENDS UPON WHETHER GLIDDEN'S STOCK WAS THAT OF A PARTY TO THE
REORGANIZATION FOR, IF SO, THE STATUTE DECLARES GAIN OR LOSS DUE TO ITS
RECEIPT SHALL NOT BE INCLUDED IN THE TAXPAYER'S COMPUTATION OF INCOME
FOR THE YEAR IN WHICH THE EXCHANGE WAS MADE. 

IF SEC. 112(I)(2) IS A DEFINITION OF A PARTY TO A REORGANIZATION AND
EXCLUDES CORPORATIONS NOT THEREIN DESCRIBED, GLIDDEN WAS NOT A PARTY
SINCE ITS RELATION TO THE TRANSACTION IS NOT WITHIN THE TERMS OF THE
DEFINITION.  IT WAS NOT A CORPORATION RESULTING FROM THE
REORGANIZATION; AND IT DID NOT ACQUIRE A MAJORITY OF THE SHARES OF
VOTING STOCK AND A MAJORITY OF THE SHARES OF ALL OTHER CLASSES OF STOCK
OF ANY OTHER CORPORATION IN THE REORGANIZATION.  THE CIRCUIT COURT OF
APPEALS THOUGHT THE SECTION WAS INTENDED AS A DEFINITION OF THE TERM
PARTY AS USED IN THE ACT AND EXCLUDED ALL CORPORATIONS NOT SPECIFICALLY
DESCRIBED.  IT THEREFORE HELD GLIDDEN COULD NOT BE CONSIDERED A PARTY
TO THE REORGANIZATION. 

THE PETITIONER CONTENDS, WE THINK CORRECTLY, THAT THE SECTION IS NOT
A DEFINITION BUT RATHER IS INTENDED TO ENLARGE THE CONNOTATION OF THE
TERM "A PARTY TO A REORGANIZATION" TO EMBRACE CORPORATIONS WHOSE
RELATION TO THE TRANSACTION WOULD NOT IN COMMON USAGE BE SO DENOMINATED
OR AS TO WHOSE STATUS DOUBT MIGHT OTHERWISE ARISE.  THIS CONCLUSION IS
FORTIFIED BY THE FACT THAT WHEN AN EXCLUSIVE DEFINITION IS INTENDED THE
WORD "MEANS" IS EMPLOYED, AS IN THE SECTION WE HAVE QUOTED DEFINING
REORGANIZATION AND IN SEC. 112(J), DEFINING THE TERM "CONTROL," WHEREAS
HERE THE WORD USED IS "INCLUDES."  IF MORE WERE NEEDED SEC. 701(B)
DECLARES:  "THE TERMS 'INCLUDES' AND 'INCLUDING' WHEN USED IN A
DEFINITION CONTAINED IN THIS ACT SHALL NOT BE DEEMED TO EXCLUDE OTHER
THINGS OTHERWISE WITHIN THE MEANING OF THE TERM DEFINED." 

THE TREASURY, IN ITS REGULATIONS, HAS CONSTRUED THE SECTION AS NOT
EMBODYING AN EXCLUSIVE DEFINITION.  FN4  THE ADMINISTRATIVE
CONSTRUCTION OF AN IDENTICAL SECTION IN THE REVENUE ACTS OF 1924 AND
1926 HAS BEEN THE SAME.  FN5 

IF THE SHAREHOLDERS OF A, AND THOSE OF B, SHOULD AGREE TO CONVEY THEIR
STOCK TO A NEW CORPORATION C, IN EXCHANGE FOR C'S STOCK, A
REORGANIZATION, AS DEFINED IN SEC. 112(I)(1) WOULD BE EFFECTED.  BUT IT
MIGHT WELL BE CONTENDED, WERE IT NOT FOR SEC. 112(I)(2), THAT THE
SHAREHOLDERS OF THE OLD CORPORATIONS HAD NOT RECEIVED STOCK IN A NON
TAXABLE EXCHANGE, AS SPECIFIED IN SEC. 112(B)(3), SINCE THE NEW
CORPORATION C WAS NOT A PARTY TO THE EXCHANGE.  IN THE PRESENT
INSTANCE, INDIANA HAD NO PART IN THE TRANSACTION.  THE SHAREHOLDERS
AGREED TO TRANSFER THEIR STOCK TO OHIO IN EXCHANGE FOR SECURITIES. 
INDIANA, AS SUCH, WAS NOT A PARTY TO ANY AGREEMENT AND TOOK NO
CORPORATE ACTION.  IF THE PLAN HAD CONTEMPLATED THE CONTINUED EXISTENCE
OF INDIANA, AND PART PAYMENT OF ITS SHAREHOLDERS IN BONDS OR PREFERRED
STOCK OF THAT COMPANY, AND PART IN SHARES OF OHIO, WHILE THIS WOULD
CLEARLY HAVE CONSTITUTED A REORGANIZATION AS DEFINED BY THE ACT, IT
MIGHT, WITH REASON, BE URGED THAT, AS RESPECTS THE BONDS OR PREFERRED
STOCK OF INDIANA, THE EXCHANGE WAS TAXABLE SINCE INDIANA WAS NOT A
PARTY TO THE REORGANIZATION.  SECTION 112(I)(2) PRECLUDES THE
CONTENTION.  FN6 

PLAINLY, HOWEVER, THERE MAY BE CORPORATE PARTIES TO REORGANIZATIONS,
WITHIN THE MEANING OF THE STATUTE, OTHER THAN THOSE ENUMERATED IN SEC.
112(I)(2).  THUS IF CORPORATIONS A AND B TRANSFER ALL THEIR ASSETS TO
C, A NEW CORPORATION, IN EXCHANGE FOR ALL C'S STOCK, THE STOCK RECEIVED
IS NOT A BASIS FOR CALCULATION OF GAIN ON THE EXCHANGE.  FN7  A AND B
ARE SO EVIDENTLY PARTIES TO THE REORGANIZATION THAT WE DO NOT NEED SEC.
112(I)(2) TO INFORM US OF THE FACT. 

AGAIN, IF COMPANY A TRANSFERS ALL ITS ASSETS TO COMPANY B, A GOING
CONCERN, UPON THE AGREEMENT OF B TO ISSUE TO A'S SHAREHOLDERS ITS STOCK
IN SUCH AMOUNT THAT THEY WILL OWN EIGHTY PER CENT. OF EVERY CLASS OF
B'S OUTSTANDING STOCK, THE CONSUMMATION OF THE AGREEMENT WILL BE A
REORGANIZATION UNDER THE ACT.  FN8  UNQUESTIONABLY THE GAIN ENSUING
UPON THE EXCHANGE OF STOCK BY A'S SHAREHOLDERS WILL NOT BE TAXABLE
SINCE THE STOCK RECEIVED BY THEM IS THAT OF B, A PARTY TO THE
REORGANIZATION, THOUGH B IS NOT DESCRIBED AS SUCH IN SEC. 112(I)(2). 
WE MUST, THEREFORE, IRRESPECTIVE OF GLIDDEN'S FAILURE TO QUALIFY AS A
PARTY UNDER THAT SECTION, DETERMINE WHETHER ITS RELATION TO THE
REORGANIZATION IS THAT OF A PARTY WITHIN THE ORDINARY CONNOTATION OF
THE TERM. 

GLIDDEN WAS A PARTY TO AN AGREEMENT WITH THE SHAREHOLDERS OF INDIANA
AND THE AGREEMENT ENVISAGED A REORGANIZATION AS DEFINED BY SEC.
112(I)(1)(A) FOR IT CONTEMPLATED THAT OHIO SHOULD ACQUIRE ALL OF THE
STOCK OF INDIANA.  THE AGREEMENT WAS FULFILLED.  BUT THE CRUCIAL
QUESTION IS WHETHER GLIDDEN WAS A PARTY TO THE REORGANIZATION THUS
EFFECTED.  GLIDDEN RECEIVED NOTHING FROM THE SHAREHOLDERS OF INDIANA. 
THE EXCHANGE WAS BETWEEN INDIANA'S SHAREHOLDERS AND OHIO.  DO THE FACTS
THAT GLIDDEN CONTRACTED FOR THE EXCHANGE AND MADE IT POSSIBLE BY
SUBSCRIBING AND PAYING FOR OHIO'S COMMON STOCK IN CASH, SO THAT OHIO
COULD CONSUMMATE THE EXCHANGE, RENDER GLIDDEN A PARTY TO THE
REORGANIZATION?  NO MORE SO THAN IF A BANKING CORPORATION HAD MADE THE
AGREEMENT WITH INDIANA'S SHAREHOLDERS AND HAD ORGANIZED THE NEW
CORPORATION, AND, BY SUBSCRIPTION TO ITS STOCK AND PAYMENT THEREFOR IN
MONEY AND THE BANKING COMPANY'S STOCK PUT THE NEW COMPANY IN POSITION
TO COMPLETE THE EXCHANGE.  NOT EVERY CORPORATE BROKER, PROMOTER, OR
AGENT WHICH ENTERS INTO A WRITTEN AGREEMENT EFFECTUATING A
REORGANIZATION, AS DEFINED IN THE REVENUE ACT, THEREBY BECOMES A PARTY
TO THE REORGANIZATION.  AND, IF IT IS NOT A PARTY, ITS STOCK RECEIVED
IN EXCHANGE, PURSUANT TO THE PLAN, IS "OTHER PROPERTY" MENTIONED IN
SEC. 112(C)(1) AND MUST BE RECKONED IN COMPUTING GAIN OR LOSS TO THE
RECIPIENT.  GLIDDEN WAS, IN THE TRANSACTION IN QUESTION, NO MORE THAN
THE EFFICIENT AGENT IN BRINGING ABOUT A REORGANIZATION.  IT WAS NOT, IN
THE NATURAL MEANING OF THE TERM, A PARTY TO THE REORGANIZATION. 

IT IS ARGUED, HOWEVER, THAT OHIO WAS THE ALTER EGO OF GLIDDEN; THAT
IN TRUTH GLIDDEN WAS THE PRINCIPAL AND OHIO ITS AGENT; THAT WE SHOULD
LOOK AT THE REALITIES OF THE SITUATION, DISREGARD THE CORPORATE ENTITY
OF OHIO, AND TREAT IT AS GLIDDEN.  BUT TO DO SO WOULD BE TO IGNORE THE
PURPOSE OF THE REORGANIZATION SECTIONS OF THE STATUTE, WHICH, AS WE
HAVE SAID, IS THAT WHERE, PURSUANT TO A PLAN, THE INTEREST OF THE
STOCKHOLDERS OF A CORPORATION CONTINUES TO BE DEFINITELY REPRESENTED IN
SUBSTANTIAL MEASURE IN A NEW OR DIFFERENT ONE, THEN TO THE EXTENT, BUT
ONLY TO THE EXTENT, OF THAT CONTINUITY OF INTEREST, THE EXCHANGE IS TO
BE TREATED AS ONE NOT GIVING RISE TO PRESENT GAIN OR LOSS.  FN9  IF
CASH OR "OTHER PROPERTY,"  - THAT IS, PROPERTY OTHER THAN STOCK OR
SECURITIES OF THE REORGANIZED CORPORATIONS,  - IS RECEIVED, PRESENT
GAIN OR LOSS MUST BE RECOGNIZED.  WAS NOT GLIDDEN'S PRIOR PREFERENCE
STOCK "OTHER PROPERTY" IN THE SENSE THAT ITS OWNERSHIP REPRESENTED A
PARTICIPATION IN ASSETS IN WHICH OHIO, AND ITS SHAREHOLDERS THROUGH IT,
HAD NO PROPRIETORSHIP?  WAS IT NOT "OTHER PROPERTY" IN THE SENSE THAT
QUA THAT STOCK THE SHAREHOLDERS OF INDIANA ASSUMED A RELATION TOWARD
THE CONVEYED ASSETS NOT MEASURED BY A CONTINUED SUBSTANTIAL INTEREST IN
THOSE ASSETS IN THE OWNERSHIP OF OHIO, BUT AN INTEREST IN THE ASSETS OF
GLIDDEN A PART OF WHICH WAS THE COMMON STOCK OF OHIO?  THESE QUESTIONS
WE THINK MUST BE ANSWERED IN THE AFFIRMATIVE.  TO REJECT THE PLAIN
MEANING OF THE TERM "PARTY," AND TO ATTRIBUTE THAT RELATION TO GLIDDEN,
WOULD BE NOT ONLY TO DISREGARD THE LETTER BUT ALSO TO VIOLATE THE
SPIRIT OF THE REVENUE ACT. 

WE HOLD THAT GLIDDEN WAS NOT A PARTY TO THE REORGANIZATION AND THE
RECEIPT OF ITS STOCK BY INDIANA'S SHAREHOLDERS IN EXCHANGE, IN PART,
FOR THEIR STOCK WAS THE BASIS FOR COMPUTATION OF TAXABLE GAIN TO THEM
IN THE YEAR 1929. 

THE JUDGMENT IS AFFIRMED. 

FN1  CH. 852, 45 STAT. 791, 816. 

FN2  86 F.(2D) 670. 

FN3  SEE SAGE V. COMMISSIONER, 83 F.(2D) 221; COMMISSIONER V. FIFTH
AVENUE BANK, 84 F.(2D) 787; COMMISSIONER V. BASHFORD, 87 F.(2D) 827. 
FN4  TREASURY REGULATIONS 74, PROMULGATED UNDER THE REVENUE ACT OF
1928, ART. 577:  "THE TERM 'A PARTY TO A REORGANIZATION'  ...  INCLUDES
A CORPORATION RESULTING FROM A REORGANIZATION AND INCLUDES BOTH
CORPORATIONS IN THE CASE OF AN ACQUISITION BY ONE CORPORATION OF AT
LEAST A MAJORITY OF THE VOTING STOCK AND AT LEAST A MAJORITY OF THE
TOTAL NUMBER OF SHARES OF ALL OTHER CLASSES OF STOCK OF ANOTHER
CORPORATION.  THIS DEFINITION IS NOT AN ALL-INCLUSIVE ONE, BUT SIMPLY
ENUMERATES CERTAIN CASES WITH RESPECT TO WHICH DOUBT MIGHT ARISE." 

FN5  REGULATIONS 65, ART. 1577, APPLICABLE TO SEC. 203(H)(2) OF THE
REVENUE ACT OF 1924; REGULATIONS 69, ART. 1577, APPLICABLE TO SEC.
203(H)(2) OF THE REVENUE ACT OF 1926.    FN6  COMPARE HELVERING V.
WATTS, 296 U.S. 387. 

FN7  COMPARE HELVERING V. MINNESOTA TEA CO., 296 U.S. 378; G. & K.
MANUFACTURING CO. V. HELVERING, 296 U.S. 389. 

FN8  SECTION 112, SUBSECTIONS (I)(1)(B) AND (J). 

FN9  PINELLAS ICE CO. V. COMMISSIONER, 287 U.S. 462, 470; NELSON CO.
V. HELVERING, 296 U.S. 374, 377; HELVERING V. MINNESOTA TEA CO., 296
U.S. 378, 385; G. & K. MANUFACTURING CO. V. HELVERING, 296 U.S. 389,
391. 

MR. JUSTICE BLACK TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :




















PUGET SOUND CO. V. TAX COMMISSION, 302 U.S. 90 


NO. 68.  ARGUED OCTOBER 13, 14, 1937.  - DECIDED NOVEMBER 8, 1937.  -
189 WASH. 131 - 63 P.(2D) 532, MODIFIED. 


1.  THE BUSINESS OF A STEVEDORING CORPORATION, ACTING AS AN
INDEPENDENT CONTRACTOR, IN SO FAR AS IT CONSISTS OF THE UNLOADING OR
DISCHARGE OF CARGOES OF VESSELS ENGAGED IN INTERSTATE OR FOREIGN
COMMERCE BY LONGSHOREMEN SUBJECT TO ITS OWN DIRECTION AND CONTROL, IS
INTERSTATE OR FOREIGN COMMERCE, AND THE PRIVILEGE OF DOING IT CAN NOT
BE TAXED BY THE STATE.  P. 92. 

2.  IN SO FAR AS THE BUSINESS OF A STEVEDORING CORPORATION CONSISTS
OF SUPPLYING LONGSHOREMEN TO SHIPOWNERS OR MASTERS WITHOUT DIRECTING OR
CONTROLLING THE WORK OF LOADING OR UNLOADING, IT IS NOT INTERSTATE OR
FOREIGN COMMERCE, BUT RATHER A LOCAL BUSINESS, AND SUBJECT, LIKE SUCH
BUSINESS GENERALLY, TO TAXATION BY THE STATE.  P. 94. 

PUGET SOUND STEVEDORING CO. V. STATE TAX COMMISSION. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

APPEAL FROM A JUDGMENT AFFIRMING THE DISMISSAL OF A SUIT TO ENJOIN
COLLECTION OF A TAX ON THE BUSINESS OF THE APPELLANT MEASURED BY GROSS
RECEIPTS. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

A TAX LAID UPON THE BUSINESS OF A STEVEDORING COMPANY, THE AMOUNT TO
BE MEASURED BY A PERCENTAGE OF THE GROSS RECEIPTS, HAS BEEN SUSTAINED
AGAINST THE PROTEST OF THE TAXPAYER THAT AN UNLAWFUL BURDEN IS IMPOSED
THEREBY UPON INTERSTATE AND FOREIGN COMMERCE.  WE ARE TO DETERMINE
WHETHER THE TAX IS VALID EITHER ALTOGETHER OR IN PART. 

A STATUTE OF THE STATE OF WASHINGTON PROVIDES THAT FOR THE PRIVILEGE
OF ENGAGING IN BUSINESS ACTIVITIES WITHIN THE STATE A TAX SHALL BE
PAYABLE BY PERSONS SO ENGAGED, PAYMENT TO BE MADE ACCORDING TO A
DESIGNATED MEASURE.  AS TO CERTAIN FORMS OF BUSINESS, AS, FOR EXAMPLE,
MANUFACTURING AND SALES AT RETAIL OR WHOLESALE, THE MEASURE IS A
SPECIALLY PRESCRIBED PERCENTAGE OF THE VALUE OF THE PRODUCTS OR THE
GROSS RECEIPTS OF SALES.  AS TO ALL OTHER FORMS OF BUSINESS THERE IS A
GENERAL PROVISION THAT THE TAX SHALL BE EQUAL TO THE GROSS INCOME OF
THE BUSINESS MULTIPLIED BY THE RATE OF ONE HALF OF ONE PER CENT.
WASHINGTON LAWS 1935, C. 180.  THIS GENERAL PROVISION IS BROAD ENOUGH
TO COVER THE BUSINESS OF A STEVEDORE. 

APPELLANT, THE PUGET SOUND STEVEDORING COMPANY, IS A WASHINGTON
CORPORATION.  IT IS ENGAGED IN THE GENERAL STEVEDORING BUSINESS AT
SEATTLE AND AT OTHER PORTS ON PUGET SOUND.  AT TIMES IT CONTRACTS WITH
A SHIPOWNER OR SHIPMASTER TO LOAD OR DISCHARGE A VESSEL THROUGH ITS OWN
EMPLOYEES, CONTROLLING AND DIRECTING THE WORK ITSELF.  THE GREAT MASS
OF ITS BUSINESS, AS WE WERE INFORMED UPON THE ARGUMENT, IS DONE IN THAT
WAY.  AT TIMES, HOWEVER, EVEN THOUGH COMPARATIVELY INFREQUENTLY, IT
MAKES A DIFFERENT KIND OF CONTRACT WHICH CHANGES ESSENTIALLY ITS
RELATION TO THE SHIP.  IN THIS SECOND FORM OF CONTRACT IT DOES NOT
UNDERTAKE TO CONTROL, DIRECT, OR SUPERVISE THE WORK.  IT "MERELY
COLLECTS THE LONGSHOREMEN AND SUPPLIES THEM TO THE VESSEL," ADVANCING
THEIR PAY AT THE COMPLETION OF THE JOB AND "BILLING THE SHIP AND HER
OWNER THE AMOUNT OF THE PAY-ROLL PLUS A COMMISSION FOR SERVICES."  ALL
VESSELS SERVED BY THE APPELLANTS ARE ENGAGED EXCLUSIVELY IN INTERSTATE
OR FOREIGN COMMERCE. 

A SUIT BY THE TAXPAYER TO ENJOIN THE TAX OFFICIALS OF THE STATE FROM
PROCEEDING TO COLLECT THE TAX WAS DISMISSED BY THE TRIAL COURT AFTER A
HEARING UPON BILL AND ANSWER, THE ANSWER NOT DISPUTING THE ALLEGATIONS
OF THE BILL.  THE SUPREME COURT OF WASHINGTON AFFIRMED THE DISMISSAL,
ITS JUDGMENT BEING PLACED UPON THE GROUND THAT THE TAXPAYER WAS AN
INDEPENDENT CONTRACTOR ENGAGED IN A LOCAL BUSINESS.  189 WASH. 131; 63
P.(2D) 532.  THE CASE IS HERE UPON APPEAL.  28 U.S.C. SEC. 344. 

1.  THE BUSINESS OF APPELLANT, IN SO FAR AS IT CONSISTS OF THE
LOADING AND DISCHARGE OF CARGOES BY LONGSHOREMEN SUBJECT TO ITS OWN
DIRECTION AND CONTROL, IS INTERSTATE OR FOREIGN COMMERCE. 

TRANSPORTATION OF A CARGO BY WATER IS IMPOSSIBLE OR FUTILE UNLESS THE
THING TO BE TRANSPORTED IS PUT ABOARD THE SHIP AND TAKEN OFF AT
DESTINATION.  A STEVEDORE WHO IN PERSON OR BY SERVANTS DOES WORK SO
INDISPENSABLE IS AS MUCH AN AGENCY OF COMMERCE AS SHIPOWNER OR MASTER. 
"FORMERLY THE WORK WAS DONE BY THE SHIP'S CREW; BUT, OWING TO THE
EXIGENCIES OF INCREASING COMMERCE AND THE DEMAND FOR RAPIDITY AND
SPECIAL SKILL, IT HAS BECOME A SPECIALIZED SERVICE DEVOLVING UPON A
CLASS 'AS CLEARLY IDENTIFIED WITH MARITIME AFFAIRS AS ARE THE
MARINERS'."  ATLANTIC TRANSPORT CO. V. IMBROVEK, 234 U.S. 52, 62.  NO
ONE WOULD DENY THAT THE CREW WOULD BE ENGAGED IN INTERSTATE OR FOREIGN
COMMERCE IF BUSIED IN LOADING OR UNLOADING AN INTERSTATE OR FOREIGN
VESSEL.  CF. BALTIMORE & O.S.W.R. CO. V. BURTCH, 263 U.S. 540.  THE
LONGSHOREMAN BUSIED IN THE SAME TASK BEARS THE SAME RELATION AS THE
CREW TO THE COMMERCE THAT HE SERVES.  INDEED, FOR THE PURPOSES OF THE
MERCHANT MARINE ACT (41 STAT. 988, 1007), A STEVEDORE IS A "SEAMAN." 
INTERNATIONAL STEVEDORING CO. V. HAVERTY, 272 U.S. 50.  A STIPULATION
IN THE RECORD TELLS US THAT ANY SERIOUS INTERRUPTION IN THE SERVICE OF
SUCH CARGO HANDLERS CRIPPLES AT ONCE THE ACTIVITIES OF A PORT AND SLOWS
DOWN AND OBSTRUCTS THE FREE AND STEADY FLOW OF COMMERCE.  WE MIGHT TAKE
JUDICIAL NOTICE OF THE FACT IF THE STIPULATION WERE NOT HERE. 

WHAT WAS DONE BY THIS APPELLANT IN THE BUSINESS OF LOADING AND
UNLOADING WAS NOT PROLONGED BEYOND THE STAGE OF TRANSPORTATION AND ITS
REASONABLE INCIDENTS.  CF. BALTIMORE & O.S.W.R. CO. V. BURTCH, SUPRA.
TRUE, THE SERVICE DID NOT BEGIN OR END AT THE SHIP'S SIDE, WHERE THE
CARGO IS PLACED UPON A SLING ATTACHED TO THE SHIP'S TACKLE.  IT TOOK IN
THE WORK OF CARRIAGE TO AND FROM THE "FIRST PLACE OF REST," WHICH MEANS
THAT IT COVERED THE SPACE BETWEEN THE HOLD OF THE VESSEL AND A
CONVENIENT POINT OF DISCHARGE UPON THE DOCK.  SOMETIMES, THOUGH NOT, IT
SEEMS, UNDER APPELLANT'S CONTRACTS, THE WORK IN THE HOLD IS DONE BY
MEMBERS OF THE CREW, AND THE WORK UPON THE DOCK BY EMPLOYEES OF THE
DOCK COMPANY.  SOMETIMES THE COST IS ABSORBED BY THE VESSEL AND
SOMETIMES BILLED AS AN EXTRA CHARGE TO SHIPPER OR CONSIGNEE.  THE FACT
IS STIPULATED, HOWEVER, THAT NO MATTER BY WHOM THE WORK IS DONE OR PAID
FOR, "STEVEDORING SERVICES ARE ESSENTIAL TO WATERBORNE COMMERCE AND
ALWAYS COMMENCE IN THE HOLD OF THE VESSEL AND END AT THE 'FIRST PLACE
OF REST,' AND VICE VERSA."  IN SUCH CIRCUMSTANCES SERVICES BEGINNING OR
ENDING IN THE HOLD OR ON THE DOCK STAND ON THE SAME PLANE FOR THE
PURPOSES OF THIS CASE AS THOSE AT THE SHIP'S SLING.  THE MOVEMENT IS
CONTINUOUS, IS COVERED BY A SINGLE CONTRACT, AND IS NECESSARY IN ALL
ITS STAGES IF TRANSPORTATION IS TO BE ACCOMPLISHED WITHOUT UNREASONABLE
IMPEDIMENTS.  THE SITUATION THUS PRESENTED HAS NO RESEMBLANCE TO THAT
CONSIDERED IN NEW YORK EX REL. PENNSYLVANIA R. CO. V. KNIGHT, 192 U.S.
21, 26, WHERE AN INTERSTATE RAILROAD FURNISHED ITS PASSENGERS WITH
TAXICAB SERVICE TO AND FROM ITS TERMINUS, THE SERVICE BEING "CONTRACTED
AND PAID FOR INDEPENDENTLY OF ANY CONTRACT OR PAYMENT FOR STRICTLY
INTERSTATE TRANSPORTATION." 

THE BUSINESS OF LOADING AND UNLOADING BEING INTERSTATE OR FOREIGN
COMMERCE, THE STATE OF WASHINGTON IS NOT AT LIBERTY TO TAX THE
PRIVILEGE OF DOING IT BY EXACTING IN RETURN THEREFOR A PERCENTAGE OF
THE GROSS RECEIPTS.  DECISIONS TO THAT EFFECT ARE MANY AND
CONTROLLING.  PHILADELPHIA & SOUTHERN S.S. CO. V. PENNSYLVANIA, 122
U.S. 326, 341-342; LELOUP V. PORT OF MOBILE, 127 U.S. 640; GALVESTON,
H. & S.A. RY. CO. V. TEXAS, 210 U.S. 217; CREW LEVICK CO. V.
PENNSYLVANIA, 245 U.S. 292; MATSON NAVIGATION CO. V. STATE BOARD OF
EQUALIZATION, 297 U.S. 441, 444; FISHER'S BLEND STATION V. TAX
COMMISSION, 297 U.S. 650, 655.  THE FACT IS NOT IMPORTANT THAT
APPELLANT DOES BUSINESS AS AN INDEPENDENT CONTRACTOR AS LONG AS THE
BUSINESS THAT IT DOES IS COMMERCE IMMUNE FROM REGULATION BY THE
STATES.  WHAT IS DECISIVE IS THE NATURE OF THE ACT, NOT THE PERSON OF
THE ACTOR.  AN INDEPENDENT CONTRACTOR UNDERTAKING TO NAVIGATE A VESSEL
WOULD HAVE THE SAME PROTECTION AS A PILOT AGREEING TO NAVIGATE IT
HIMSELF. 

2.  THE BUSINESS OF APPELLANT, IN SO FAR AS IT CONSISTS OF SUPPLYING
LONGSHOREMEN TO SHIPOWNERS OR MASTERS WITHOUT DIRECTING OR CONTROLLING
THE WORK OF LOADING OR UNLOADING, IS NOT INTERSTATE OR FOREIGN
COMMERCE, BUT RATHER A LOCAL BUSINESS, AND SUBJECT, LIKE SUCH BUSINESS
GENERALLY, TO TAXATION BY THE STATE. 

WHAT IS DONE BY APPELLANT IN CONNECTION WITH ACTIVITIES OF THIS ORDER
IS SIMILAR IN MANY ASPECTS TO THE WORK OF A SHIP'S CHANDLER, AND EVEN
MORE CLOSELY SIMILAR TO THAT OF A LABOR OR EMPLOYMENT BUREAU.  SUCH A
BUREAU WAS CONSIDERED IN WILLIAMS V. FEARS, 179 U.S. 270, 278, AND ITS
BUSINESS FOUND TO BE NO PART OF INTERSTATE OR FOREIGN COMMERCE, THOUGH
THE TRANSACTIONS OF SUCH COMMERCE WERE INCREASED THEREBY.  CF. FEDERAL
COMPRESS CO. V. MCLEAN, 291 U.S. 17, 21, 22; CHASSANIOL V. GREENWOOD,
291 U.S. 584.  LITTLE ANALOGY EXISTS BETWEEN THE ACTIVITIES NOW IN
QUESTION AND THOSE REVIEWED IN MCCALL V. CALIFORNIA, 136 U.S. 104;
TEXAS TRANSPORT & TERMINAL CO. V. NEW ORLEANS, 264 U.S. 150; AND DI
SANTO V. PENNSYLVANIA, 273 U.S. 34.  THE CONTRACTORS THERE CONSIDERED
WERE FOUND TO BE ACTING AS AGENTS OF FOREIGN STEAMSHIP COMPANIES WITH
AUTHORITY TO MAKE CONTRACTS BINDING ON THE PRINCIPALS AND EVEN RUNNING
IN THEIR NAMES.  IF APPELLANT STANDS IN THAT RELATION TO THE VESSELS
THAT IT SERVES IN THIS BRANCH OF ITS ACTIVITIES, IT HAS FAILED TO MAKE
THE FACT APPARENT BY THE ALLEGATIONS OF ITS BILL.  THE EFFECT OF SUCH A
SHOWING IS NOT BEFORE US NOW. 

THE DECREE OF THE SUPREME COURT OF WASHINGTON BEING ERRONEOUS TO THE
EXTENT HERE INDICATED AND NO FARTHER IS MODIFIED ACCORDINGLY, THE CAUSE
BEING REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE
OPINION OF THIS COURT.  DECREE MODIFIED. 
..END :
















HALE V. STATE BOARD, 302 U.S. 95 


NO. 16.  ARGUED OCTOBER 18, 19, 1937.  - DECIDED NOVEMBER 8, 1937.  -
271 N.W. 168, AFFIRMED. 


1.  IN DETERMINING THE EXTENT OF A CONTRACTUAL OBLIGATION ALLEGED TO
HAVE BEEN IMPAIRED BY A STATE LAW, THIS COURT WILL ACCEPT THE JUDGMENT
OF THE HIGHEST COURT OF THE STATE UNLESS MANIFESTLY WRONG.  P. 100. 

2.  IOWA LEGISLATION, IN EFFECT WHEN STATE AND MUNICIPAL BONDS WERE
ISSUED AND ACQUIRED, DECLARED THAT SUCH BONDS SHOULD NOT BE TAXED. 
LATER, A TAX ON THE NET INCOME OF RESIDENTS IN THE STATE WAS IMPOSED
FOR THE FIRST TIME, AND INCOME TAXES WERE ASSESSED TO THE BONDHOLDERS,
THE INTEREST DERIVED FROM THEIR BONDS BEING INCLUDED IN THE COMPUTATION
OF NET INCOME.  THE STATE COURT ASSUMED WITHOUT DECIDING THAT THE
STATUTES OF EXEMPTION SHOULD BE TREATED AS GIVING RISE TO CONTRACTS,
BUT INTERPRETED THOSE STATUTES AS LIMITED TO TAXES LAID DIRECTLY UPON
PROPERTY IN PROPORTION TO ITS VALUE, AND NOT AS TOUCHING TAXES IN THE
NATURE OF AN EXCISE UPON THE NET INCOME OF THE OWNER.  THIS COURT
FOLLOWS THE STATE COURT'S CONCLUSION, FINDING THAT AT THE LEAST IT IS
NOT PLAINLY WRONG AND THAT IT HAS SUPPORT (A) IN THE STATE'S STATUTORY
SYSTEM OF TAXATION VIEWED IN ITS ENTIRETY (P. 101), (B) IN DECISIONS OF
IOWA AND OTHER STATES BEFORE THE BONDS WERE BOUGHT AND AFTERWARDS (P.
103), AND (C) IN DECISIONS OF THIS COURT.  P. 104. 

3.  CONTRACTS OF TAX EXEMPTION ARE STRICTLY CONSTRUED.  P. 103. 

4.  THE CLASSIFICATION OF A TAX UPON NET INCOME AS SOMETHING
DIFFERENT FROM A PROPERTY TAX, IF NOT SUBSTANTIALLY AN EXCISE, IS NOT
UNREASONABLE.  P. 106. 

5.  THE TAX COMPLAINED OF IN THIS CASE IS NOT LAID UPON THE
OBLIGATION TO PAY THE PRINCIPAL OR THE INTEREST, AT ALL EVENTS NOT
WITHIN THE MEANING OF THE CONTRACT OF EXEMPTION; BUT IS LAID UPON THE
YIELD, IF ANY, OF AN AGGREGATE OF OCCUPATIONS AND INVESTMENTS.  P.
107. 

HALE ET AL. V. STATE BOARD OF ASSESSMENT AND REVIEW. 

APPEAL FROM THE SUPREME COURT OF IOWA. 

APPEAL FROM A DECREE SUSTAINING THE DISMISSAL BY THE STATE DISTRICT
COURT OF A PETITION IN EQUITY PRAYING ANNULMENT OF AN INCOME TAX
ASSESSMENT. 

THE STATUTORY EXEMPTION IS CONTRACTUAL WITHIN THE PROTECTION OF THE
FEDERAL CONSTITUTION. 

THE SCOPE OF THE EXEMPTION, AND WHETHER THIS TAX VIOLATES IT, ARE
QUESTIONS FOR THIS COURT TO DETERMINE INDEPENDENTLY. 

AN INCOME TAX ON INTEREST DERIVED FROM SECURITIES IS IN PRACTICAL
INCIDENCE AND EFFECT A TAX UPON THE SECURITIES; AND SO A PROPERTY TAX
WITHIN THE EXEMPTION CONTRACT. 

THE CONTRACTUAL EXEMPTION IS NOT CONFINED TO PROPERTY TAXES; IT
FORBIDS ANY TAX ON THE BONDS, INCLUDING THIS TAX ON THEIR INTEREST,
WHICH ALWAYS HAS BEEN HELD A TAX ON THE BONDS.  THE EXEMPTION IS BROAD
AND GENERAL, AND CANNOT BE CONSTRUED TO EXCLUDE ONLY ONE SORT OF TAX ON
THE BONDS. 

THE EXEMPTION CANNOT BE CONSTRUED THUS NARROWLY IN ORDER TO SAVE THE
CONSTITUTIONALITY OF THE LATER INCOME TAX STATUTE. 

PREVIOUS IOWA CASES DO NOT JUSTIFY CONSTRUING THE EXEMPTION TO PERMIT
THE PRESENT TAX. 

WHETHER OR NOT INCOME IS ITSELF "PROPERTY," THE EXEMPTION IS VIOLATED
FOR THIS TAX STILL TAXES THE BONDS.  CITY OF DUBUQUE V. NORTHWESTERN
LIFE INS. CO., 29 IOWA 9, DOES NOT INVOLVE NOR APPLY TO OUR QUESTION. 

DECISIONS AS TO WHETHER A GRADUATED INCOME TAX IS FORBIDDEN BY STATE
CONSTITUTIONS REQUIRING PROPERTY TAXES TO BE UNIFORM DO NOT APPLY
HERE. 

THE EXEMPTION CANNOT BE AVOIDED BY TREATING THE TAX AS "IN THE NATURE
OF AN EXCISE."  EVEN AN EXCISE ON RECEIVING INCOME UNDER A PREEXISTING
CONTRACT IMPAIRS THE OBLIGATION OF THAT CONTRACT.  THERE IS NO EXCISE
HERE, FOR APPELLEES EXERCISE NO TAXABLE PRIVILEGE WHICH CAN BE THE
SUBJECT OF AN EXCISE, OR OF ANY TAX OTHER THAN ONE IN THE NATURE OF A
PROPERTY TAX.  THE THINGS MENTIONED BELOW TO SHOW THAT APPELLANTS
"ENGAGED IN BUSINESS" ARE SIMPLE ACTS OF OWNERSHIP, NOT TAXABLE AS
PRIVILEGES, AND A TAX BECAUSE OF THEM IS A TAX ON PROPERTY-OWNERSHIP
AND NOT AN EXCISE.  THE STATUTE DOES NOT PRETEND TO IMPOSE AN EXCISE OR
PRIVILEGE TAX. 

DECLARING THE TAX TO BE ONE ON THE RECIPIENT OF INCOME RATHER THAN ON
THE INCOME IS OF NO AVAIL.  TAXING ONE BECAUSE OF OWNERSHIP OF PROPERTY
OR RECEIPT OF SUCH INCOME AS THIS IS TANTAMOUNT TO TAXING THE PROPERTY
OR ITS INCOME.  THIS TAX IS EXPLICITLY IMPOSED ON THE INCOME AS WELL AS
ON THE RECIPIENT. 

MACALLEN V. MASSACHUSETTS, 279 U.S. 620, AND GILLESPIE V. OKLAHOMA,
257 U.S. 501, HAVE NOT BEEN OVERRULED OR MADE INAPPLICABLE BY ANY
SUBSEQUENT DECISIONS OF THIS COURT, AND CASES BELIEVED TO OVERRULE THEM
ACTUALLY UPHOLD THEM; AND SHOW THAT WHENEVER THE TAX IS AN INCOME TAX
(AS HERE) RATHER THAN A TAX UPON CORPORATE FRANCHISES, IT MAY NOT
INCLUDE INCOME FROM EXEMPT SECURITIES. 

THE CASE OF PEOPLE V. GILCHRIST, 262 U.S. 94, DOES NOT PERMIT THIS TAX
OR CONTROL THIS CASE. 

THE POWER OF THE STATE TO LEVY INCOME TAXES CAN NOT OVERRIDE THE
EXEMPTION. 

THE STATUTORY EXEMPTION FROM TAXATION IS NOT CONTRACTUAL, AND
THEREFORE NOT PROTECTED BY THE FEDERAL CONSTITUTION. 

TO BIND A STATE BY A STATUTORY EXEMPTION FROM TAXATION THERE MUST BE
A BINDING CONTRACT SUPPORTED BY CONSIDERATION.  A MERE GRATUITY OR
BOUNTY IS NOT A CONTRACT, AND A GENERAL STATUTORY EXEMPTION FROM
TAXATION IS A GRATUITY NOT A CONTRACT.  HERE THERE WAS NO CONSIDERATION
FOR THE EXEMPTIONS, HENCE NO CONTRACT. 

THE STATUTES UNDER WHICH THE EXEMPTIONS ARE CLAIMED APPLY TO GENERAL
PROPERTY TAXES ONLY, AND NOT TO AN EXCISE. 

THE EXEMPTION STATUTE HAD BEEN CONSTRUED BY THE SUPREME COURT OF IOWA
TO APPLY ONLY TO GENERAL PROPERTY TAXES, PRIOR TO THE TIME WHEN IT WAS
AMENDED TO INCLUDE MUNICIPAL, COUNTY, STATE AND SCHOOL BONDS. 
THEREFORE, THE LEGISLATURE KNEW THAT IT WAS AMENDING A STATUTE WHICH
EXEMPTED ONLY FROM GENERAL PROPERTY TAXES. 

A GENERAL INCOME TAX IS NOT A PROPERTY TAX BUT AN EXCISE TAX.  INCOME
IS NOT PROPERTY, AS THE IOWA SUPREME COURT HAS HELD. 

PEOPLE V. GILCHRIST, 262 U.S. 84, IS AUTHORITY FOR THE PROPOSITION
THAT THE IOWA INCOME TAX STATUTE DOES NOT VIOLATE THE CONTRACT CLAUSE
OF THE FEDERAL CONSTITUTION. 

CASES ON WHICH APPELLANTS RELY, AS HOLDING THAT TO TAX THE INTEREST
IS TO TAX THE BONDS, ARE NOT AUTHORITY FOR THE QUESTIONS INVOLVED IN
THIS CASE.  MOST OF THOSE CASES DEAL WITH THE POWER OF A STATE TO TAX
THE FEDERAL GOVERNMENT OR ITS INSTRUMENTALITIES.  NONE OF THEM DEALS
WITH THE RIGHT OF A STATE TO TAX ITS OWN CITIZENS, UNDER A GENERAL
INCOME TAX STATUTE. 

MACALLEN V. MASSACHUSETTS, 279 U.S. 620, IS NOT APPLICABLE.  THE
EXEMPTION STATUTE INVOLVED THERE EXEMPTED PERSONS AS WELL AS PROPERTY,
AND THE TAXING STATUTE, BY AMENDMENT, WAS AIMED DIRECTLY AT INTEREST
FROM THE TAX-EXEMPT BONDS.  MOREOVER, THE MASSACHUSETTS TAXING STATUTE
CONSTRUED IN THAT CASE DID NOT IMPOSE A GENERAL INCOME TAX, BUT APPLIED
ONLY TO DOMESTIC BUSINESS CORPORATIONS. 

THE IOWA INCOME TAX IS NOT AIMED AT INTEREST FROM TAXFREE BONDS.  IT
IS A TAX ON THE RECIPIENT OF THE INCOME MEASURED BY HIS INCOME FROM ALL
SOURCES. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER INTEREST UPON BONDS OF THE STATE OF IOWA OR
ITS POLITICAL SUBDIVISIONS MAY BE INCLUDED IN THE ASSESSMENT OF A TAX
ON THE NET INCOME OF THE OWNERS WITHOUT DETRACTING FROM EARLIER
EXEMPTIONS IN RESPECT OF TAXES UPON PROPERTY AND WITHOUT AN
UNCONSTITUTIONAL IMPAIRMENT OF THE OBLIGATION OF CONTRACT. 

APPELLANTS, RESIDENTS OF IOWA, WERE THE OWNERS IN 1934 AND AFTERWARDS
OF IOWA SCHOOL DISTRICT BONDS, IOWA ROAD BONDS, IOWA COUNTY BONDS, AND
AN IOWA SOLDIERS' BONUS BOND, OF THE FACE VALUE, ASIDE FROM INTEREST,
OF $752,900.  THE STATUTES OF THE STATE IN FORCE WHEN THE BONDS WERE
ISSUED AND WHEN THE APPELLANTS ACQUIRED OWNERSHIP PROVIDE IN VARYING
BUT EQUIVALENT TERMS THAT SUCH BONDS "ARE NOT TO BE TAXED,"  FN1
"SHALL NOT BE TAXED,"  FN2  OR "SHALL BE EXEMPT FROM TAXATION."  FN3
IOWA WAS WITHOUT AN INCOME TAX WHEN THESE EXEMPTIONS WERE DECLARED.  A
"PERSONAL NET INCOME TAX" UPON PERSONS RESIDENT WITHIN THE STATE WAS
IMPOSED FOR THE FIRST TIME BY A STATUTE ENACTED IN 1934.  CODE 1935,
SECS. 6943-F4 ET SEQ. IN THE ASSESSMENT OF THAT TAX FOR 1935 INTEREST
ON APPELLANTS' BONDS IN THE SUM OF $36,893.75 WAS INCLUDED BY THE STATE
BOARD OF ASSESSMENT AND REVIEW AGAINST APPELLANTS' PROTEST THAT THE
LAW, IF SO APPLIED, IMPAIRED THE OBLIGATION OF CONTRACTS OF EXEMPTION. 
CONSTITUTION OF THE UNITED STATES, ARTICLE I, SEC. 10.  BY APPROPRIATE
PROCEEDINGS THE CONTROVERSY WAS BROUGHT TO THE SUPREME COURT OF IOWA,
WHERE THE ASSESSMENT WAS UPHELD.  271 N.W. 168.  THE COURT ASSUMED,
WITHOUT DECIDING, THAT THE STATUTES OF EXEMPTION SHOULD BE TREATED AS
GIVING RISE TO CONTRACTS, AND NOT MERELY AS DECLARATIONS OF A
LEGISLATIVE POLICY SUBJECT TO REVOCATION AT THE LEGISLATIVE PLEASURE. 
PROCEEDING ON THAT ASSUMPTION, THE COURT INTERPRETED THE CONTRACTS AS
LIMITED TO TAXES LAID DIRECTLY UPON PROPERTY IN PROPORTION TO ITS
VALUE, AND NOT AS TOUCHING TAXES IN THE NATURE OF AN EXCISE UPON THE
NET INCOME OF AN OWNER.  THIS CONCLUSION WAS SUPPORTED BY AN ANALYSIS
OF THE IOWA STATUTES AND A REVIEW OF IOWA DECISIONS AS WELL AS THE
DECISIONS OF THIS AND OTHER COURTS.  THE CASE IS HERE UPON APPEAL.  28
U.S.C. SEC. 344. 

WE MAKE THE SAME ASSUMPTION THAT WAS MADE IN THE STATE COURT AS TO
THE EXISTENCE OF A CONTRACT, WITHOUT INDICATING THEREBY HOW WE WOULD
RULE UPON THE POINT IF A RULING WERE ESSENTIAL.  CF. NEW YORK EX REL.
CLYDE V. GILCHRIST, 262 U.S. 94, 98; PACIFIC CO. V. JOHNSON, 285 U.S.
480, 489; WISCONSIN & MICHIGAN RY. CO. V. POWERS, 191 U.S. 379, 386;
DODGE V. BOARD OF EDUCATION, ANTE, P. 74.  ESSENTIAL IT IS NOT FOR THE
DECISION OF THIS CASE IF THE CONTRACT TO BE ASSUMED IS LIMITED IN SCOPE
AND OPERATION AS IT WAS LIMITED BELOW.  WHETHER THE LIMITATION SHOULD
BE ACCEPTED IS THUS THE PIVOTAL INQUIRY.  THE POWER IS OURS, WHEN THE
IMPAIRMENT OF AN OBLIGATION IS URGED AGAINST A LAW, TO DETERMINE FOR
OURSELVES THE EFFECT AND MEANING OF THE CONTRACT AS WELL AS ITS
EXISTENCE.  U.S. MORTGAGE CO. V. MATTHEWS, 293 U.S. 232, 236;
FUNKHOUSER V. PRESTON CO., 290 U.S. 163, 167.  EVEN SO, WE LEAN TOWARD
AGREEMENT WITH THE COURTS OF THE STATE, AND ACCEPT THEIR JUDGMENT AS TO
SUCH MATTERS UNLESS MANIFESTLY WRONG.  PHELPS V. BOARD OF EDUCATION,
300 U.S. 319, 322, 323; VIOLET TRAPPING CO. V. GRACE, 297 U.S. 119,
120; TAMPA WATER WORKS CO. V. TAMPA, 199 U.S. 241, 243, 244; DODGE V.
BOARD OF EDUCATION, SUPRA.  FOR REASONS TO BE DEVELOPED, OBVIOUS ERROR
IS NOT DISCERNIBLE IN THE RULING OF THE HIGHEST COURT OF IOWA THAT THE
STATUTORY EXEMPTIONS INVOKED BY THE APPELLANTS WERE NOT INTENDED TO
INCLUDE TAXES UPON THE NET INCOME DERIVED FROM BUSINESS OR
INVESTMENTS.  TO THE CONTRARY THE DECISION HAS SUPPORT IN THE STATUTORY
SYSTEM OF TAXATION VIEWED IN ITS ENTIRETY, IN STATE DECISIONS BOTH IN
THE COURTS OF IOWA AND ELSEWHERE BEFORE THE BONDS WERE BOUGHT AND
AFTERWARDS, AND EVEN INDEED IN DECISIONS OF THIS COURT.  OUR SEARCH IS
FOR SOMETHING MORE THAN THE MEANING OF A PROPERTY TAX OR AN EXCISE IN
THE THOUGHT OF SKILLED ECONOMISTS OR MASTERS OF FINANCE.  IT IS FOR THE
MEANING THAT AT A PARTICULAR TIME AND PLACE AND IN THE SETTING OF A
PARTICULAR STATUTE MIGHT REASONABLY HAVE ACCEPTANCE BY MEN OF COMMON
UNDERSTANDING. 

1.  THE LIMITATION AFFIXED TO THE CONTRACTS OF EXEMPTION HAS SUPPORT,
FIRST OF ALL, IN THE STATUTORY SYSTEM OF TAXATION CONSIDERED AS A
WHOLE. 

OF THE TOTAL INTEREST ($36,893.75) COLLECTED ON APPELLANTS' BONDS,
THE GREATER PORTION ($32,776.25) IS PROTECTED, IF AT ALL, BY REASON OF
THE EXEMPTION GIVEN TO BONDS ISSUED BY ANY SCHOOL DISTRICT OR COUNTY
WITHIN THE STATE.  THAT EXEMPTION MAY BEST BE STUDIED AS IT STOOD IN
THE SUPPLEMENTAL CODE OF 1915.  FN4  IT WAS THEN SUBDIVISION 1 OF SEC.
1304.  THERE WERE OTHER SUBDIVISIONS EXEMPTING OTHER ITEMS:   - THE
GROUNDS AND BUILDINGS FOR PUBLIC LIBRARIES; HOUSEHOLD FURNITURE UP TO A
PRESCRIBED VALUE; THE FARMING UTENSILS OF ANY PERSON WHO MAKES HIS
LIVELIHOOD BY FARMING; AND MANY OTHER KINDS OF PROPERTY.  THE SECTION
OPENS WITH THE STATEMENT THAT "THE FOLLOWING CLASSES OF PROPERTY ARE
NOT TO BE TAXED," AND THEN ENUMERATES THE CLASSES.  BUT THE SCOPE OF
THE EXEMPTION IS LIKELY TO BE EXAGGERATED UNLESS THE NEXT PRECEDING
EACH COUNTY SHALL, ANNUALLY, AT ITS SEPTEMBER SESSION, LEVY THE
FOLLOWING TAXES UPON THE ASSESSED VALUE OF THE TAXABLE PROPERTY IN THE
COUNTY," A MANDATE CLEARLY ADDRESSED TO THE LEVY OF AD VALOREM TAXES
ONLY.  THE INFERENCE IS A FAIR ONE THAT SEC. 1304 DID NOT EXEMPT THE
ITEMS THERE ENUMERATED FROM TAXATION OF EVERY FORM AND FOR EVERY
PURPOSE.  IT WITHDREW THEM FROM THE OPERATION OF THE LEVY COMMANDED BY
THE SECTION NEXT PRECEDING.  FN5  TRUE, IN LATER COMPILATIONS OF THE
STATUTES, THE SECTIONS HAVE BEEN REARRANGED, THOUGH WITH SUBSTANCE
UNAFFECTED.  CF. CODE, 1935, SEC. 6953.  IN THE CODE OF 1935,
SUBDIVISION 1 OF SEC. 1304 IS SUBDIVISION 5 OF SEC. 6944; SEC. 1303 IS
SEC. 7171.  THERE CAN BE LITTLE DOUBT THAT THE MEANING REMAINS WHAT IT
WAS BEFORE.  UNITED STATES V. RYDER, 110 U.S. 729, 740; UNITED STATES
V. SISCHO, 262 U.S. 165, 168, 169; WARNER V. GOLTRA, 293 U.S. 155, 161;
DAVIS V. DAVIS, 75 N.Y. 221, 225, 226; FIFTH AVENUE BLDG. CO. V.
KERNOCHAN, 221 N.Y. 370, 375; 117 N.E. 579; MITCHELL V. SIMPSON, L.R.
25 Q.B.D. 183, 189. 

BESIDES THE SCHOOL AND COUNTY BONDS, APPELLANTS WERE THE OWNERS OF A
SOLDIERS' BONUS BOND IN THE SUM OF $1,000, AND ROAD BONDS OR
CERTIFICATES TO THE AMOUNT OF $82,000.  THE EXEMPTION OF THE BONUS BOND
WAS DECLARED BY THE STATUTE AUTHORIZING THE ISSUE.  39TH G.A., C. 332,
SEC. 10, ADOPTED MARCH 23, 1921.  THE EXEMPTION IS NOW SUBDIVISION 22
OF SEC. 6944 OF THE CODE OF 1935, AND SHOULD BE GIVEN THE SAME MEANING
AS THE EXEMPTION CONFERRED BY THE OTHER SUBDIVISIONS.  THE ROAD BONDS
OR CERTIFICATES HAVE THEIR EXEMPTION UNDER A DIFFERENT STATUTE (SEC.
4753A13, CODES OF 1931 AND 1935), BUT THE BONDS ARE EXPRESSLY DECLARED
TO BE OBLIGATIONS OF THE COUNTY (SEC. 4753A14), AND, AS THE COURT BELOW
OBSERVED, THERE IS NO REASON TO SUPPOSE THAT THE EXEMPTION GIVEN THEM
WAS BROADER THAN THAT OF COUNTY OBLIGATIONS GENERALLY. 

2.  THE MEANING OF THE IOWA STATUTES IS CLARIFIED, IF OTHERWISE
UNCERTAIN, BY THE OPINIONS OF THE IOWA COURT IN THIS AND OTHER CASES. 

THE COURT IN ITS OPINION IN THIS CASE APPLIED THE GENERAL PRINCIPLE
THAT CONTRACTS OF TAX EXEMPTION MUST RECEIVE A STRICT CONSTRUCTION. 
THE TEACHING OF THIS COURT HAS BEEN ALWAYS TO THE SAME EFFECT.  "GRANTS
OF IMMUNITY FROM TAXATION IN DEROGATION OF A SOVEREIGN POWER OF THE
STATE, ARE STRICTLY CONSTRUED."  PACIFIC CO. V. JOHNSON, 285 U.S. 480,
491, CITING MANY CASES.  ADHERING TO THAT PRINCIPLE, THE IOWA COURT
HELD THAT THE TAX EXEMPTION WAS LIMITED TO TAXES UPON PROPERTY, AND
COULD NOT BE EXTENDED TO TAXES IN THE NATURE OF AN EXCISE.  FOR THIS
RESTRICTION IT FOUND SUPPORT IN ITS OWN EARLIER DECISIONS, RENDERED
MANY YEARS BEFORE APPELLANTS' BONDS WERE PURCHASED.  THUS, SIOUX CITY
V. INDEPENDENT SCHOOL DISTRICT, 55 IOWA 150; 7 N.W. 488, DECIDED IN
1880, AND E. & W. CONSTRUCTION CO. V. JASPER COUNTY, 117 IOWA 365; 90
N.W. 1006, DECIDED IN 1902, HELD THE EXEMPTION INAPPLICABLE TO SPECIAL
ASSESSMENTS, LIMITING IT AT THE SAME TIME "TO THE TAXES CONTEMPLATED IN
TITLE 6 OF THE CODE."  FN6  SO ALSO IOWA MUTUAL TORNADO INS. ASSN. V.
GILBERTSON, 129 IOWA 658; 106 N.W. 153, DECIDED IN 1906, INTERPRETING A
DIFFERENT SUBDIVISION OF THE EXEMPTION STATUTE, BUT A COGNATE ONE,
AGAIN LIMITED THE EXEMPTION TO TAXES UPON PROPERTY, AND REFUSED TO
APPLY IT TO AN EXCISE OR LICENSE TAX MEASURED BY RECEIPTS.  THE RULING
WAS REITERATED IN STATE V. CITY OF DES MOINES, 221 IOWA 642; 266 N.W.
153, DECIDED IN 1936, UPON FACTS NOT GREATLY DIFFERENT.  CF. PLUMMER V.
COLER, 178 U.S. 115.  FROM THESE PRECEDENTS THE IOWA COURT ADVANCED TO
THE HOLDING, ANNOUNCED IN THE CASE AT BAR, THAT A TAX UPON NET INCOME
WAS SUBSTANTIALLY AN EXCISE, AND HENCE DID NOT COME WITHIN THE SCOPE OF
AN EXEMPTION CONFINED TO TAXES UPON PROPERTY.  THE RESULT WAS CONCEIVED
TO BE LATENT IN THE PRECEDENTS IF EFFECT WAS TO BE GIVEN TO THEIR FAIR
IMPLICATIONS.  "SO THE STATE COURT HAS TOLD US," CONSTRUING ITS OWN
DECISIONS, "AND THE GOOD FAITH OF ITS DECLARATION IS NOT SUCCESSFULLY
IMPEACHED."  STOCKHOLDERS V. STERLING, 300 U.S. 175, 183. 

3.  THE RULING THAT A TAX UPON NET INCOME IS WITHOUT THE SCOPE OF THE
EXEMPTION CANNOT BE ADJUDGED UNREASONABLE, FOR IT WILL BE FOUND TO BE
SUPPORTED BY DECISIONS IN MANY OTHER STATES, AND EVEN, INDEED, BY
DECISIONS OF THIS COURT. 

(A)  THE QUESTION AS TO THE NATURE OF SUCH A TAX HAS COME UP
REPEATEDLY UNDER STATE CONSTITUTIONS REQUIRING TAXES UPON PROPERTY TO
BE EQUAL AND UNIFORM, OR IMPOSING SIMILAR RESTRICTIONS.  MANY, PERHAPS
MOST, COURTS HOLD THAT A NET INCOME TAX IS TO BE CLASSIFIED AS AN
EXCISE.  FN7  "THE TAX LEVIED ON INCOME IS NOT A PROPERTY TAX, BUT IS A
PERCENTAGE LAID ON THE AMOUNT WHICH A MAN RECEIVES, IRRESPECTIVE OF
WHETHER HE SPENDS IT, WASTES IT, OR INVESTS IT."  FEATHERSTONE V.
NORMAN, 170 GA. 370, 382; 153 S.E. 58; PURNELL V. PAGE, 133 N.C. 125,
129; 45 S.E. 534.  AS EARLY AS 1870, THE SUPREME COURT OF IOWA HAD
WRITTEN AN OPINION WHICH FORESHADOWS THE SAME THOUGHT.  DUBUQUE V.
NORTHWESTERN LIFE INS. CO., 29 IOWA 9.  CF. VILAS V. IOWA STATE BOARD
OF ASSESSMENT AND REVIEW, 273 N.W. 338.  TRUE, THERE ARE COURTS IN
OTHER STATES THAT TEACH A DIFFERENT DOCTRINE.  FN8  OUR DUTY DOES NOT
CALL UPON US TO DETERMINE WHICH VIEW WE WOULD ACCEPT AS SUPPORTED BY
THE BETTER REASON IF THE CHOICE WERE AN ORIGINAL ONE FOR US, UNAFFECTED
BY THE VIEW ACCEPTED IN THE COURT BELOW.  ENOUGH FOR PRESENT PURPOSES
THAT WITH AUTHORITY SO NEARLY BALANCED THE IOWA CONSTRUCTION OF THE
CONTRACT IS AT LEAST NOT PLAINLY WRONG.  THE PROPRIETY OF OUR KEEPING
TO IT IS THE CLEARER WHEN WE BEAR IN MIND THAT THERE WERE IOWA
DECISIONS POINTING THE SAME WAY BEFORE APPELLANTS BECAME OWNERS. 

(B)  FINALLY, AND EVEN MORE CONCLUSIVELY, DECISIONS OF OUR OWN COURT
FORBID US TO STIGMATIZE AS UNREASONABLE THE CLASSIFICATION OF A TAX
UPON NET INCOME AS SOMETHING DIFFERENT FROM A PROPERTY TAX, IF NOT
SUBSTANTIALLY AN EXCISE.  NEW YORK EX REL. CLYDE V. GILCHRIST, 262 U.S.
94; NEW YORK EX REL. COHN V. GRAVES, 300 U.S. 308; BRUSHABER V. UNION
PACIFIC R. CO., 240 U.S. 1, ALL POINT IN THAT DIRECTION.  WE WILL
CONSIDER THEM IN THE ORDER STATED. 

THE TAXPAYER IN NEW YORK EX REL. CLYDE V. GILCHRIST CLAIMED THE
BENEFIT OF AN EXEMPTION UNDER A STATUTE OF NEW YORK TO THE EFFECT THAT,
UPON PAYMENT OF A RECORDING TAX, DEBTS AND OBLIGATIONS SECURED BY
MORTGAGES OF REAL PROPERTY SHOULD BE EXEMPT FROM OTHER TAXATION BY THE
STATE AND LOCAL SUBDIVISIONS.  THE QUESTION WAS WHETHER THE EXEMPTION
THUS ACCORDED WAS APPLICABLE TO AN INCOME TAX ENACTED LONG AFTERWARDS. 
THE STATE COURT RULED AGAINST THE TAXPAYER (PEOPLE EX REL. CENTRAL
UNION TRUST CO. V. WENDELL, 197 APP. DIV. 131; 188 N.Y.S. 344; PEOPLE
EX REL. CLYDE V. WENDELL, 197 APP. DIV. 913; 187 N.Y.S. 949; 232 N.Y.
550; 134 N.E. 567), ASSUMING THE EXISTENCE OF A CONTRACT OF EXEMPTION,
BUT HOLDING THAT IT WAS NOT INTENDED TO APPLY TO TAXES UPON INCOME. 
THIS COURT, CONSIDERING THE FACT THAT AT THE DATE OF THE EXEMPTION
STATUTE "NO ONE THOUGHT OF AN INCOME TAX," AND RECALLING THAT "ANY
CONTRACT OF EXEMPTION MUST BE SHOWN TO HAVE BEEN INDISPUTABLY WITHIN
THE INTENTION OF THE LEGISLATURE," SUSTAINED THE JUDGMENT OF THE STATE
COURT.  "THE CONCLUSION DOES NOT SEEM TO US VERY DIFFICULT TO REACH." 
262 U.S. AT P. 98. 

THE CONTROVERSY IN NEW YORK EX REL. COHN V. GRAVES, DECIDED AT THE
LAST TERM, EVOKED A RULING BY THIS COURT THAT A STATE TAX UPON NET
INCOME WHICH INCLUDED RENTS DERIVED FROM LAND IN ANOTHER STATE, WAS NOT
EQUIVALENT TO A PROPERTY TAX IMPOSED UPON THE LAND ITSELF.  "THE
INCIDENCE OF A TAX ON INCOME DIFFERS FROM THAT OF A TAX ON PROPERTY. 
NEITHER TAX IS DEPENDENT UPON THE POSSESSION BY THE TAXPAYER OF THE
SUBJECT OF THE OTHER.  HIS INCOME MAY BE TAXED, ALTHOUGH HE OWNS NO
PROPERTY, AND HIS PROPERTY MAY BE TAXED ALTHOUGH IT PRODUCES NO
INCOME."  300 U.S. AT P. 314.  POLLOCK V. FARMERS' LOAN & TRUST CO.,
157 U.S. 429; 158 U.S. 601, WAS CONSIDERED AND DISTINGUISHED.  TWO
RULINGS EMERGE AS A RESULT OF THE ANALYSIS.  BY THE TEACHING OF THE
POLLOCK CASE AN INCOME TAX ON THE RENTS OF LAND (157 U.S. 429) OR EVEN
ON THE FRUITS OF OTHER INVESTMENTS (158 U.S. 601) IS AN IMPOST UPON
PROPERTY WITHIN THE SECTION OF THE CONSTITUTION (ART. I, SEC. 2, CL. 3)
GOVERNING THE APPORTIONMENT OF DIRECT TAXES AMONG THE STATES.  300 U.S.
AT P. 315.  BY THE TEACHING OF THE SAME CASE AN INCOME TAX, IF MADE TO
COVER THE INTEREST ON GOVERNMENT BONDS, IS A CLOG UPON THE BORROWING
POWER SUCH AS WAS CONDEMNED IN MCCULLOCH V. MARYLAND, 4 WHEAT.  316,
AND COLLECTOR V. DAY, 11 WALL.  113, 124.  300 U.S. AT PP. 315, 316. 
THERE WAS NO HOLDING THAT THE TAX IS A PROPERTY ONE FOR EVERY PURPOSE
OR IN EVERY CONTEXT.  WE LOOK TO ALL THE FACTS. 

IN LINE WITH THAT CONCEPTION OF THE POLLOCK CASE IS BRUSHABER V.
UNION PACIFIC R. CO., SUPRA, WHERE THE COURT POINTED OUT (240 U.S. AT
PP. 16, 17) THAT "THE CONCLUSION REACHED IN THE POLLOCK CASE DID NOT IN
ANY DEGREE INVOLVE HOLDING THAT INCOME TAXES GENERICALLY AND
NECESSARILY CAME WITHIN THE CLASS OF DIRECT TAXES ON PROPERTY," BUT
THAT TO THE CONTRARY SUCH TAXES WERE ENFORCIBLE AS EXCISES EXCEPT TO
THE EXTENT THAT VIOLENCE MIGHT THUS BE DONE TO THE SPIRIT AND INTENT OF
THE RULE GOVERNING APPORTIONMENT. 

THE DOCTRINE OF THESE DECISIONS, WE THINK, IS APPLICABLE HERE.  WE DO
NOT OVERLOOK THE ARGUMENT THAT THE PROMISE TO PAY INTEREST MAY BE PART
OF THE OBLIGATION OF A CONTRACT AS MUCH AS THE PROMISE TO PAY
PRINCIPAL.  TO CONCEDE THIS COUNTS FOR LITTLE IF THE DISTINCTION
BETWEEN AN EXCISE AND A PROPERTY TAX, OR BETWEEN THE DIFFERENT MEANINGS
OF A PROPERTY TAX, IS NOT PERMITTED TO ESCAPE US.  UNLESS THE FOREGOING
ANALYSIS IS FAULTY, THE TAX COMPLAINED OF BY APPELLANTS IS NOT LAID
UPON THE OBLIGATION TO PAY THE PRINCIPAL OR INTEREST CREATED BY THE
BONDS, AT ALL EVENTS WITHIN THE MEANING OF THE CONTRACT OF EXEMPTION. 
THE TAX IS LAID UPON THE NET RESULTS OF A BUNDLE OR AGGREGATE OF
OCCUPATIONS AND INVESTMENTS.  UNDER A STATUTE SO CONCEIVED AND FRAMED A
MAN MAY OWN A QUANTITY OF STATE AND COUNTY BONDS AND PAY NO TAX
WHATEVER.  THE RETURNS FROM HIS OCCUPATION AND INVESTMENTS ARE THROWN
INTO A POT, AND AFTER DEDUCTING PAYMENTS FOR DEBTS AND EXPENSES AS WELL
AS OTHER ITEMS, THE AMOUNT OF THE NET YIELD IS THE BASE ON WHICH HIS
TAX WILL BE ASSESSED.  CF. UNITED STATES GLUE CO. V. OAK CREEK, 247
U.S. 321, 329.  IN THE LIGHT OF ALL THE PRECEDENTS BROUGHT TOGETHER IN
THIS OPINION, WE CANNOT SAY THAT A TAX ASSESSED ON SUCH A BASE IS A
PLAIN VIOLATION OF ANY CONTRACT OF EXEMPTION TO BE DISCOVERED IN THE
LAWS OF IOWA. 

DOUBTLESS A CONTRACT OF EXEMPTION CAN BE PHRASED IN SUCH TERMS AS TO
FORBID THE IMPOSITION OF A NET INCOME TAX OR INDEED A TAX OF ANY SORT. 
BONDS ISSUED BY THE GOVERNMENT OF THE UNITED STATES ARE SOMETIMES
EXEMPT BY THEIR EXPRESS TERMS FROM INCOME TAXES TO ANY DEGREE (40 STAT.
35, SEC. 1), SOMETIMES FROM INCOME TAXES OTHER THAN SURTAXES OR EXCESS
PROFITS TAXES.  40 STAT. 288, 291, SEC. 7.  SUCH WERE THE LIBERTY BONDS
CONSIDERED BY THIS COURT IN MACALLEN CO. V. MASSACHUSETTS, 279 U.S.
620.  BROAD ALSO WAS THE EXEMPTION GIVEN TO THE FEDERAL FARM LOAN BONDS
CONSIDERED IN THE SAME CASE, AT LEAST IN RESPECT OF TAXES LEVIED BY THE
STATES, FOR THE BONDS WERE DECLARED EXPRESSLY TO BE FEDERAL
INSTRUMENTALITIES.  39 STAT. 360, 380, SEC. 26.  LESS CLEAR AND
COMPREHENSIVE WAS THE EXEMPTION OF THE MASSACHUSETTS BONDS DECLARED BY
A MASSACHUSETTS STATUTE (MASS. G.L. C. 59, SEC. 5) AND DEALT WITH MORE
OR LESS SUMMARILY AT THE END OF THE OPINION.  279 U.S. AT P. 634. 
HOWEVER, THE COURTS OF MASSACHUSETTS HAD ALREADY REJECTED THE
CONTENTION THAT AN INCOME TAX WAS TO BE CLASSIFIED AS AN EXCISE RATHER
THAN A TAX ON PROPERTY.  OPINION OF THE JUSTICES, 220 MASS. 613, 624;
108 N.E. 570; 266 MASS. 583, 585; 165 N.E. 900; HARRISON V.
COMMISSIONER OF CORPORATIONS, 272 MASS. 422, 427; 172 N.E. 605.  THE
MEANING OF THE EXEMPTION WAS PROPERLY ASCERTAINED IN SUBJECTION TO THAT
RULING.  CF. EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, AND PACIFIC
CO. V. JOHNSON, SUPRA. 

NOTHING IN THIS OPINION IS AT WAR WITH WESTON V. CHARLESTON, 2 PET.
449, OR OTHER CASES DECLARING THE IMMUNITIES OF GOVERNMENTAL AGENCIES. 
IN THE CASE CITED AND ITS CONGENERS THE PROBLEM FOR DECISION WAS
WHETHER A TAX UPON INCOME, EVEN THOUGH NOT A PROPERTY TAX IN STRICTNESS
OR FOR EVERY PURPOSE, WAS ONE IN SUCH A SENSE OR IN SUCH A MEASURE AS
TO HAMPER THE FREEDOM OF THE CENTRAL GOVERNMENT THROUGH THE
INTERFERENCE OF THE STATES OR THE FREEDOM OF THE STATES THROUGH THE
INTERFERENCE OF THE CENTRAL GOVERNMENT.  THE LIMITATIONS DECLARED IN
THOSE DECISIONS WERE GATHERED BY IMPLICATION FROM THE STRUCTURE OF OUR
FEDERAL SYSTEM, AND WERE ACCOMMODATED, AS THE COURT BELIEVED, TO THE
PUBLIC POLICY AT STAKE.  WHAT THE COURT IS NOW CONCERNED WITH, HOWEVER,
IS NOT THE PRESERVATION OR PROTECTION OF ANY GOVERNMENTAL FUNCTION. 
IOWA CANNOT BE HELD TO CRIPPLE IN AN UNCONSTITUTIONAL WAY HER OWN
PRIVILEGES AND POWERS WHEN SHE LEVIES AN INCOME OR EVEN A PROPERTY TAX
UPON BONDS ISSUED BY HERSELF.  THE COURT IS NOW CONCERNED WITH THE
MEANING AND EFFECT OF PARTICULAR CONTRACTS OF EXEMPTION TO BE READ
NARROWLY AND STRICTLY.  THERE IS NO ROOM AT SUCH A TIME FOR THE FREER
AND BROADER METHODS THAT HAVE BEEN THOUGHT TO BE APPROPRIATE IN THE
DEVELOPMENT OF THE DOCTRINE OF IMPLIED RESTRAINTS. 

THE JUDGMENT IS AFFIRMED. 

FN1  "THE FOLLOWING CLASSES OF PROPERTY ARE NOT TO BE TAXED:  1.  THE
PROPERTY OF THE UNITED STATES AND THIS STATE....  MUNICIPAL, SCHOOL,
AND DRAINAGE BONDS OR CERTIFICATES HEREAFTER ISSUED BY ANY
MUNICIPALITY, SCHOOL DISTRICT, DRAINAGE DISTRICT OR COUNTY WITHIN THE
STATE."  IOWA CODE SUPPLEMENT OF 1915, SEC. 1304, SUBD. 1; CODE 1935,
SEC. 6944, SUBD. 5. 

FN2  "BONDS AND ROAD CERTIFICATES  ...  SHALL NOT BE TAXED."  ACTS
38TH G.A. C. 237, SEC. 28; CODE 1935, SEC. 4753-A13. 

FN3  "ALL BONDS ISSUED HEREUNDER (THE SOLDIERS' BONUS ACT) SHALL BE
EXEMPT FROM TAXATION."  ACTS 39TH G.A. C. 332, SEC. 10; CODE 1935, SEC.
6944, SUBD. 22. 

FN4  COMPARE CODE OF 1851, SEC. 455; CODE OF 1873, SEC. 797; CODE OF
1897, SEC. 1304. 

FN5  AN EARLIER FORM OF THE SAME STATUTE, AFTER PROVIDING, LIKE THE
LATER ONE, THAT "THE FOLLOWING CLASSES OF PROPERTY ARE NOT TO BE
TAXED," ADDS THE SIGNIFICANT WORDS, "AND THEY MAY BE OMITTED FROM THE
ASSESSMENTS HEREIN REQUIRED."  CODE OF 1873, SEC. 797.  THE OPINION IN
SIOUX CITY V. INDEPENDENT SCHOOL DISTRICT, 55 IOWA 150, 151, 152; 7
N.W. 488, REFERS TO THESE WORDS AS EMPHASIZING THE CONCLUSION THAT
EXEMPTION RELATES TO TAXES ON THE VALUE OF THE PROPERTY.  THE 1851 CODE
PROVISION IS ALMOST IDENTICAL. 

FN6  THE CODE IN FORCE AT THAT TIME WAS THE ONE OF 1873. 

FN7  SIMS V. AHRENS, 167 ARK. 557; 271 S.W. 720; STANLEY V. GATES,
179 ARK. 886; 19 S.W.(2D) 1000; WARING V. SAVANNAH, 60 GA. 93, 100;
FEATHERSTONE V. NORMAN, 170 GA. 370, 379; 153 S.E. 58; DIEFENDORF V.
GALLET, 51 IDAHO 619, 627; 10 P.(2D) 307; MILES V. DEPARTMENT OF
TREASURY, 199 N.E. 372(IND.); OPINION OF THE JUSTICES, 133 ME. 525,
528; 178 ATL. 820; HATTIESBURG GROCERY CO. V. ROBERTSON, 126 MISS.  34,
52; 88 SO. 4; LUDLOW-SAYLOR WIRE CO. V. WOLLBRINCK, 275 MO. 339, 351;
205 S.W. 196; BACON V. RANSON, 331 MO. 985, 990; 56 S.W.(2D) 786;
O'CONNELL V. STATE BOARD OF EQUALIZATION, 95 MONT. 91, 112; 25 P.(2D)
114; MILLS V. STATE BOARD OF EQUALIZATION, 97 MONT. 13, 17; 33 P.(2D)
563; MAXWELL V. KENTCOFFEY MFG. CO., 204 N.C. 365, 371; 168 S.E. 397;
HUNTON V. COMMONWEALTH, 166 VA. 229, 243; 183 S.E. 873; VAN DYKE V.
STATE TAX COMM'N, 217 WIS. 528, 535; 259 N.W. 700; 4 COOLEY ON
TAXATION, 4TH ED., SEC. 1743.  MANY CASES ARE COLLECTED IN BROWN, THE
NATURE OF THE INCOME TAX, 17 MINN. L. REV. 127, 130, 139. 

FN8  ELIASBERG BROS. MERCANTILE CO. V. GRIMES, 204 ALA. 492; 86 SO.
56; BACHRACH V. NELSON, 349 ILL. 579, 595; 182 N.E. 909; OPINION OF THE
JUSTICES, 220 MASS. 613, 624; 108 N.E. 570; 266 MASS. 583, 585; 165
N.E. 900; HARRISON V. COMMISSIONER OF CORPORATIONS, 272 MASS. 422, 427;
172 N.E. 605; REDFIELD V. FISHER, 135 ORE.  180, 192; 292 PAC. 813;
KELLEY V. KALODNER, 320 PA. ST. 180, 185; 181 ATL. 598; CULLITON V.
CHASE, 174 WASH. 363; 25 P.(2D) 81; JENSEN V. HENNEFORD, 185 WASH. 209,
216; 53 P.(2D) 607. 

MR. JUSTICE SUTHERLAND, DISSENTING. 

I THINK THE JUDGMENT SHOULD BE REVERSED. 

AT THE TIME THE BONDS HERE INVOLVED WERE PURCHASED, THE STATUTES OF
IOWA EXPRESSLY PROVIDED THAT THEY "ARE NOT TO BE TAXED" OR "SHALL NOT
BE TAXED" OR "SHALL BE EXEMPT FROM TAXATION."  THESE ARE PLAIN WORDS,
AND THERE IS NO ROOM FOR CONSTRUCTION.  WHEN THE LANGUAGE IS CLEAR, IT
IS CONCLUSIVE.  "THERE CAN BE NO CONSTRUCTION WHERE THERE IS NOTHING TO
CONSTRUE."  THIS HAS BEEN HELD SO OFTEN BY THIS COURT THAT IT HAS
BECOME AXIOMATIC.  THAT THE PROVISIONS WITH RESPECT TO THE NON
TAXABILITY OF THE BONDS CONSTITUTE A STATUTORY CONTRACT WITH THE
PURCHASER OF THE BONDS, AND THAT ANY SUBSEQUENT STATUTE WHICH VIOLATES
THESE PROVISIONS IMPAIRS THE OBLIGATION OF THE CONTRACT, IS NOT A
MATTER OF DISPUTE.  THE SOLE QUESTION IS WHETHER THE IMPOSITION OF AN
INCOME TAX IN RESPECT OF THE INTEREST DERIVED FROM THE BONDS IS A TAX
UPON THE BONDS.    WE ARE NOT CONCERNED WITH THE NAME GIVEN TO THE
TAX.  THE EXEMPTION IS IN UNQUALIFIED TERMS, AND INCLUDES ALL TAXES. 
AND I SEE NO WARRANT FOR SAYING THAT THE EXEMPTION MUST BE LIMITED TO
SO-CALLED AD VALOREM TAXES.  THE EXEMPTION IS NOT IN THE FORM OR NATURE
OF A PROVISO TO THE SECTION FIXING THE TIME AND PROVIDING FOR THE LEVY
OF SUCH TAXES, BUT IS A SUBSTANTIVE ENACTMENT STANDING INDEPENDENTLY
AND COMPLETE IN ITSELF.  NOR DO I SEE ANY GROUND FOR CONFINING IT TO
TAXES THEN KNOWN TO THE IOWA LAW.  SUCH AN ALL-EMBRACING EXEMPTION
CANNOT BE AVOIDED BY THE INVENTION OF A NEW TAX.  TO ME, IT SEEMS
EVIDENT THAT IF ANY TAX BE IMPOSED UPON THE BONDS, THE CONTRACT IS
IMPAIRED.  IT LIKEWISE SEEMS EVIDENT THAT THE TAX HERE IS IMPOSED ON
THE BONDS THEMSELVES. 

OF WHAT DOES A BOND FOR THE PAYMENT OF MONEY CONSIST?  CERTAINLY NOT
THE PRINCIPAL ALONE; FOR THE PROMISE TO PAY INTEREST IS AS MUCH A PART
OF THE OBLIGATION OF THE BOND AS THE PROMISE TO PAY THE PRINCIPAL.  A
BOND, FOR EXAMPLE, PROMISES TO PAY THE BEARER AT THE END OF TEN YEARS
THE SUM OF $1,000, AND ALSO INTEREST AT THE RATE OF 5% PER ANNUM, TO BE
PAID SEMI-ANNUALLY; THAT IS TO SAY, PROMISES TO PAY $25 AT THE END OF
EVERY SIX-MONTHS' PERIOD, AND $1,000 AT THE END OF TEN YEARS.  THERE IS
NO DIFFERENCE BETWEEN THE TWO PROMISES IN RESPECT OF THEIR BINDING OR
LEGAL QUALITY.  BOTH ARE OBLIGATIONS OF THE BOND.  IF ONE CANNOT BE
VIOLATED, NEITHER CAN THE OTHER. 

THERE IS NO DIFFERENCE IN PRINCIPLE BETWEEN SUCH A BOND AND ONE WHERE
THE BOND IS ISSUED UPON A DISCOUNT BASIS, AS IN THE CASE OF UNITED
STATES SAVINGS BONDS (TREASURY DEPARTMENT CIRCULAR NO. 529, FEBRUARY
25, 1935).  A UNITED STATES SAVINGS BOND FOR $1,000, PAYABLE IN TEN
YEARS "WITHOUT INTEREST," MAY BE PURCHASED FOR THE SUM OF $750 - THE
REMAINING $250 BEING DEFERRED INTEREST.  PLAINLY, THE $250 DEFERRED
INTEREST IS AS MUCH A PART OF THE BOND AS THE $750 ORIGINALLY INVESTED;
AND A CONTRACTUAL OBLIGATION EXEMPTING THE BOND FROM TAXATION IS
EQUALLY APPLICABLE TO EACH.  IS THE CASE DIFFERENT IF THE BOND SHALL
PROVIDE FOR THE PAYMENT OF $750, TOGETHER WITH INTEREST IN THE SUM OF
$250 TO BE PAID IN INSTALLMENTS OR AT THE END OF TEN YEARS?  CERTAINLY
NOT, UNLESS FORM IS TO BE EXALTED AND SUBSTANCE IGNORED. 

THE FORCE OF WHAT HAS BEEN SAID CANNOT BE AVOIDED BY MERELY CALLING
THE TAX AN EXCISE.  IF A TAX FALLS UPON THE BOND AND LESSENS ITS
PROCEEDS, EITHER IN RESPECT OF PRINCIPAL OR INTEREST, IT IS A TAX ON
THE BOND, AND CANNOT BE MADE SOMETHING ELSE BY RESORT TO THE VOCABULARY
OR BY EMPLOYING SOME CIRCUITOUS METHOD OF IMPOSING IT.  IT IS WELL
SETTLED, AT LEAST GENERALLY, THAT "WHAT CANNOT BE DONE DIRECTLY  ...
CANNOT BE ACCOMPLISHED INDIRECTLY BY LEGISLATION WHICH ACCOMPLISHES THE
SAME RESULT."  FAIRBANK V. UNITED STATES, 181 U.S. 283, 294, 300, AND
CASES CITED.  I AM UNABLE TO SUBSCRIBE TO THAT PHILOSOPHY WHICH SEEMS
TO TEACH THAT A FORBIDDEN RESULT MAY NEVERTHELESS BE ACHIEVED IF ONLY
SOME DELUSIVE AND DEVIOUS WAY OF ACHIEVING IT CAN BE FOUND. 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER JOIN IN THIS OPINION. 
..END :
















TRADE COMM'N V. EDUCATION SOCIETY, 302 U.S. 112 


NO. 14.  ARGUED OCTOBER 18, 1937.  - DECIDED NOVEMBER 8, 1937.  - 86
F.(2D) 692, REVERSED IN PART. 


1.  THE FACT THAT A FALSE STATEMENT MAY BE OBVIOUSLY FALSE TO THOSE
WHO ARE TRAINED AND EXPERIENCED DOES NOT CHANGE ITS CHARACTER, NOR TAKE
AWAY ITS POWER TO DECEIVE OTHERS LESS EXPERIENCED.  P. 116. 

2.  THERE IS NO DUTY RESTING UPON A CITIZEN TO SUSPECT THE HONESTY OF
THOSE WITH WHOM HE TRANSACTS BUSINESS.  LAWS ARE MADE TO PROTECT THE
TRUSTING AS WELL AS THE SUSPICIOUS.  ID. 

3.  FINDINGS OF THE FEDERAL TRADE COMMISSION ARE CONCLUSIVE IF
SUPPORTED BY EVIDENCE.  P. 117. 

4.  AS PART OF A SCHEME FOR SELLING AN ENCYCLOPEDIA AND A LOOSE LEAF
EXTENSION SERVICE, RESPONDENTS FALSELY REPRESENTED TO PROSPECTIVE
PURCHASERS THAT THE BOOKS WOULD BE GIVEN TO THEM FREE AND THAT THEY
WOULD PAY ONLY FOR THE EXTENSION SERVICE AT A REDUCED PRICE; WHEREAS,
IN TRUTH, THE PRICE CHARGED THEM WAS THE SAME AS THE REGULAR, STANDARD
PRICE FOR BOTH THE BOOKS AND THE EXTENSION SERVICE.  HELD - VIOLATIVE
OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT.  PP. 115, 117. 

5.  AN ORDER OF THE FEDERAL TRADE COMMISSION FORBADE, IN THE
ADVERTISING OF A REVISED ENCYCLOPEDIA, THE USE OF THE NAMES OF PERSONS,
AS CONTRIBUTORS OR EDITORS, WHO HAD NOT CONSENTED TO SUCH USE AND WHO
HAD NEITHER ACTUALLY CONTRIBUTED TO THE PUBLICATIONS NOR HELPED TO EDIT
THEM.  HELD PROPERLY INCLUSIVE OF CONTRIBUTORS TO AN EARLIER WORK NO
PART OF WHOSE CONTRIBUTIONS HAD BEEN CARRIED INTO THE REVISION.  P.
117. 

6.  THE COMMISSION'S FINDINGS, SUPPORTED BY EVIDENCE, SUSTAIN ITS
ORDER FORBIDDING, IN ADVERTISEMENTS OF A PUBLICATION, THE USE OF
TESTIMONIALS ATTRIBUTED TO PERSONS WHO DID NOT GIVE THEM.  P. 118. 

7.  A CEASE-AND-DESIST ORDER OF THE FEDERAL TRADE COMMISSION DIRECTED
TO A CORPORATION BINDS THOSE WHO ARE IN CONTROL OF ITS AFFAIRS AND MAY
PROPERLY INCLUDE THEM AS INDIVIDUALS WHEN THERE IS REASON TO BELIEVE
THAT, IF DIRECTED TO THE CORPORATION ALONE, THEY WILL ENDEAVOR TO EVADE
IT. P. 119. 

FEDERAL TRADE COMMISSION V. STANDARD EDUCATION SOCIETY ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 301 U.S. 674, TO REVIEW THE JUDGMENT OF THE COURT BELOW
WHICH MODIFIED IN PART, AND REVERSED IN PART, AN ORDER OF THE FEDERAL
TRADE COMMISSION. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

UPON APPLICATION BY THE FEDERAL TRADE COMMISSION THIS COURT GRANTED
CERTIORARI TO REVIEW THAT PART OF A DECREE OF THE CIRCUIT COURT OF
APPEALS FOR THE SECOND CIRCUIT WHICH MODIFIED IN PART AND REVERSED IN
PART A "CEASE AND DESIST" ORDER OF THE COMMISSION.  86 F.(2D) 692.  THE
COMMISSION, AFTER SERVICE OF A COMPLAINT, AND EXTENSIVE HEARINGS, MADE
A FINDING OF FACTS FROM THE TESTIMONY AND ORDERED TWO CORPORATION
RESPONDENTS, AND THREE INDIVIDUALS CONTROLLING THESE CORPORATIONS, TO
DESIST FROM CERTAIN PRACTICES USED BY RESPONDENTS IN FURTHERING THE
SALE OF ENCYCLOPEDIAS AND OTHER BOOKS IN INTERSTATE COMMERCE.  THE
COMMISSION NOT ONLY FOUND THE PRACTICES TO BE "UNFAIR" BUT ALSO "FALSE,
DECEPTIVE AND MISLEADING."  THE COURT BELOW MODIFIED AND WEAKENED THE
COMMISSION'S ORDER IN MATERIAL ASPECTS, AND THE QUESTIONS HERE ARE
WHETHER THE TESTIMONY SUPPORTED ALL THE FINDINGS OF THE COMMISSION, AND
WHETHER THESE FINDINGS JUSTIFIED THE ENTIRE ORDER AS AGAINST ALL THE
RESPONDENTS. 

ALL "UNFAIR" PRACTICES FOUND BY THE COMMISSION RELATED WHOLLY TO
METHODS OF SALE.  THE COMMISSION'S ORDER AGAINST RESPONDENTS WAS BASED,
IN PART, UPON THE FOLLOWING FINDINGS: 

THAT FICTITIOUS TESTIMONIALS AND RECOMMENDATIONS HAD BEEN USED BY
RESPONDENTS; THAT AUTHORIZED TESTIMONIALS AND RECOMMENDATIONS HAD BEEN
EXAGGERATED AND GARBLED; THAT AUTHORIZED TESTIMONIALS FOR A "PREVIOUS
WORK" WERE LATER USED TO FURTHER THE SALE OF ANOTHER "WORK, QUITE
DIFFERENT IN FORM, IN MATERIAL AND IN PURPOSE."  "FOR THE PURPOSE OF
SELLING THEIR PUBLICATIONS, STANDARD REFERENCE WORK AND NEW STANDARD
ENCYCLOPEDIA," RESPONDENTS ADVERTISED "A LIST HEADED 'CONTRIBUTORS AND
REVIEWERS' AND  ...  IN SUCH LIST THEY INCLUDE MANY WHO HAVE NOT BEEN
EITHER CONTRIBUTORS OR REVIEWERS TO EITHER THE STANDARD REFERENCE WORK
OR THE NEW STANDARD ENCYCLOPEDIA."  RESPONDENTS SOLD "THEIR
PUBLICATIONS AT RETAIL TO THE PUBLIC BY SALESMEN ON THE SUBSCRIPTION
PLAN" AND IN CARRYING OUT SAID PLAN THEY REPRESENTED TO PROSPECTS THAT
THEY WERE SELECTING A SMALL LIST OF "WELL CONNECTED REPRESENTATIVE
PEOPLE" IN VARIOUS LOCALITIES, IN ORDER TO PRESENT THEM WITH AN
"ARTCRAFT DE LUXE EDITION" OF THE ENCYCLOPEDIA.  FURTHER CARRYING OUT
RESPONDENTS' SCHEME, THEIR AGENTS REPRESENTED THAT "THEY ARE GIVING
AWAY A SET OF BOOKS; THAT THEY ARE NOT SELLING ANYTHING; THAT THE BOOKS
ARE FREE; THAT THE BOOKS ARE BEING GIVEN FREE AS AN ADVERTISING PLAN
...  THAT THE PROSPECT HAS BEEN SPECIALLY SELECTED, AND THAT THE ONLY
RETURN DESIRED FOR THE GIFT IS PERMISSION TO USE THE NAME OF THE
PROSPECT FOR ADVERTISING PURPOSES AND AS A REFERENCE"; THAT THE "SAID
PROSPECTS ARE PAYING ONLY FOR THE LOOSE LEAF EXTENSION SERVICE;...
THAT THE PRICE OF $69.50 IS A REDUCED PRICE AND THAT THE REGULAR PRICE
OF THE BOOKS AND THE EXTENSION SERVICE IS $150.00, SOMETIMES EVEN AS
HIGH AS $200.00."  THE STATEMENTS THAT THE ENCYCLOPEDIA IS BEING GIVEN
AWAY; THAT PAYMENT IS ONLY BEING MADE "FOR THE LOOSE LEAF EXTENSION
SERVICE"; AND THAT "$69.50 IS A REDUCED PRICE  ...  ARE FALSE,
DECEPTIVE AND MISLEADING, AS $69.50 IS THE REGULAR, STANDARD PRICE" FOR
BOTH THE ENCYCLOPEDIA AND THE LOOSE LEAF EXTENSION AND RESEARCH
PRIVILEGES. 

THE COURT OF APPEALS REVERSED CLAUSES ONE AND THREE OF THE
COMMISSION'S ORDER.  THESE CLAUSES ORDERED RESPONDENTS NOT TO REPRESENT
FALSELY TO PURCHASERS OF THEIR PUBLICATIONS THAT THE PUBLISHING COMPANY
WAS GIVING ENCYCLOPEDIAS TO THEM AS A GIFT, AND THAT PURCHASERS WERE
PAYING ONLY FOR LOOSE LEAF SUPPLEMENTS. 

THE COURT OF APPEALS AFFIRMED CLAUSES TWO AND SIX OF THE COMMISSION'S
ORDER.  THESE CLAUSES ORDERED RESPONDENTS NOT TO REPRESENT FALSELY TO
PURCHASERS THAT SETS OF BOOKS HAD "BEEN RESERVED TO BE GIVEN AWAY FREE
OF COST TO SELECTED PERSONS" AND THAT THE USUAL PRICE AT WHICH
RESPONDENTS' PUBLICATIONS ARE SOLD IS HIGHER THAN THE PRICE "AT WHICH
THEY ARE OFFERED TO SUCH PURCHASERS." 

IT IS CLEAR, BOTH FROM THE FINDINGS OF THE COMMISSION, AND THE
TESTIMONY UPON WHICH THEY REST, THAT THE PRACTICES FORBIDDEN IN CLAUSES
ONE, TWO, THREE AND SIX ARE ALL TIED TOGETHER AS PARTS OF THE SAME
SALES PLAN.  AS A FIRST STEP UNDER THIS PLAN, SALESMEN OBTAINED AN
AUDIENCE WITH PROSPECTIVE PURCHASERS BY REPRESENTATIONS MADE TO THEM
THAT BY REASON OF THEIR PRESTIGE AND INFLUENCE THEY HAD BEEN SELECTED
BY THE COMPANY TO RECEIVE A SET OF BOOKS FREE OF COSTS FOR ADVERTISING
PURPOSES.  AFTER RESPONDENTS' AGENTS THUS GAINED AN AUDIENCE BY THE
PROMISE OF A FREE SET OF BOOKS, THEY THEN MOVED FORWARD UNDER THE SAME
GENERAL SALES PLAN, BY FALSELY REPRESENTING THAT THE REGULAR PRICE OF
THE LOOSE LEAF SUPPLEMENT ALONE WAS $69.50, AND THAT THE USUAL PRICE OF
BOTH BOOKS AND LOOSE LEAF SUPPLEMENTS WAS MUCH IN EXCESS OF $69.50. 
THE COMMISSION ORDERED RESPONDENTS NOT TO ENGAGE IN CARRYING OUT ANY
PART OF THIS ENTIRE SALES PLAN.  HOWEVER, AS THE COURT OF APPEALS
REVERSED CLAUSES ONE AND THREE OF THE COMMISSION'S ORDER, A PART OF THE
SALES SCHEME WHICH THE COMMISSION CONDEMNED AS UNFAIR, CAN YET BE
CARRIED OUT BY RESPONDENTS.  THAT IS TO SAY - RESPONDENTS BY THAT
REVERSAL, ARE LEFT FREE TO CONTINUE TO OBTAIN AUDIENCES WITH PROSPECTS
AND TO SELL ENCYCLOPEDIAS AND LOOSE LEAF SUPPLEMENTS TO THEM, BY FALSE
REPRESENTATIONS THAT THE COMPANY GIVES THEM A SET OF ENCYCLOPEDIAS
FREE, AND THAT $69.50 PAID BY THEM TO THE COMPANY, IS FOR THE LOOSE
LEAF SUPPLEMENT ALONE. 

IN REACHING THE CONCLUSION THAT RESPONDENTS SHOULD BE LEFT FREE TO
ENGAGE IN THAT PART OF THE SALES SCHEME PROHIBITED BY CLAUSES ONE AND
THREE OF THE COMMISSION'S ORDER, THE COURT BELOW REASONED AS FOLLOWS: 

"WE CANNOT TAKE SERIOUSLY THE SUGGESTION THAT A MAN WHO IS BUYING A
SET OF BOOKS AND A TEN YEARS' 'EXTENSION SERVICE,' WILL BE FATUOUS
ENOUGH TO BE MISLED BY THE MERE STATEMENT THAT THE FIRST ARE GIVEN
AWAY, AND THAT HE IS PAYING ONLY FOR THE SECOND....  SUCH TRIVIAL
NICETIES ARE TOO IMPALPABLE FOR PRACTICAL AFFAIRS, THEY ARE WILL-O'-THE
WISPS, WHICH DIVERT ATTENTION FROM SUBSTANTIAL EVILS." 

THE FACT THAT A FALSE STATEMENT MAY BE OBVIOUSLY FALSE TO THOSE WHO
ARE TRAINED AND EXPERIENCED DOES NOT CHANGE ITS CHARACTER, NOR TAKE
AWAY ITS POWER TO DECEIVE OTHERS LESS EXPERIENCED.  THERE IS NO DUTY
RESTING UPON A CITIZEN TO SUSPECT THE HONESTY OF THOSE WITH WHOM HE
TRANSACTS BUSINESS.  LAWS ARE MADE TO PROTECT THE TRUSTING AS WELL AS
THE SUSPICIOUS.  THE BEST ELEMENT OF BUSINESS HAS LONG SINCE DECIDED
THAT HONESTY SHOULD GOVERN COMPETITIVE ENTERPRISES, AND THAT THE RULE
OF CAVEAT EMPTOR SHOULD NOT BE RELIED UPON TO REWARD FRAUD AND
DECEPTION. 

THE PRACTICE OF PROMISING FREE BOOKS WHERE NO FREE BOOKS WERE INTENDED
TO BE GIVEN, AND THE PRACTICE OF DECEIVING UNWARY PURCHASERS INTO THE
FALSE BELIEF THAT LOOSE LEAF SUPPLEMENTS ALONE SELL FOR $69.50, WHEN IN
REALITY BOTH BOOKS AND SUPPLEMENT REGULARLY SELL FOR $69.50, ARE
PRACTICES CONTRARY TO DECENT BUSINESS STANDARDS.  TO FAIL TO PROHIBIT
SUCH EVIL PRACTICES WOULD BE TO ELEVATE DECEPTION IN BUSINESS AND TO
GIVE TO IT THE STANDING AND DIGNITY OF TRUTH.  IT WAS CLEARLY THE
PRACTICE OF RESPONDENTS THROUGH THEIR AGENTS, IN ACCORDANCE WITH A WELL
MATURED PLAN, TO MISLEAD CUSTOMERS INTO THE BELIEF THAT THEY WERE GIVEN
AN ENCYCLOPEDIA, AND THAT THEY PAID ONLY FOR THE LOOSE LEAF
SUPPLEMENT.  THAT REPRESENTATIONS WERE MADE JUSTIFYING THIS BELIEF;
THAT THE PLAN WAS OUTLINED IN LETTERS GOING DIRECTLY FROM THE
COMPANIES; THAT MEN AND WOMEN WERE DECEIVED BY THEM - THERE CAN BE
LITTLE DOUBT.  CERTAINLY THE COMMISSION WAS JUSTIFIED FROM THE EVIDENCE
IN FINDING THAT CUSTOMERS WERE MISLED.  TESTIMONY IN THE RECORD FROM
CITIZENS OF TEN STATES - TEACHERS, DOCTORS, COLLEGE PROFESSORS, CLUB
WOMEN, BUSINESS MEN - PROVES BEYOND DOUBT THAT THE PRACTICE WAS NOT
ONLY THE COMMONLY ACCEPTED SALES METHOD FOR RESPONDENTS' ENCYCLOPEDIAS,
BUT THAT IT SUCCESSFULLY DECEIVED AND DELUDED ITS VICTIMS. 

THE COURTS DO NOT HAVE A RIGHT TO IGNORE THE PLAIN MANDATE OF THE
STATUTE WHICH MAKES THE FINDINGS OF THE COMMISSION CONCLUSIVE AS TO THE
FACTS IF SUPPORTED BY TESTIMONY.  FN1  THE COURTS CANNOT PICK AND
CHOOSE BITS OF EVIDENCE TO MAKE FINDINGS OF FACT CONTRARY TO THE
FINDINGS OF THE COMMISSION.  THE RECORD IN THIS CASE IS FILLED WITH
EVIDENCE OF WITNESSES UNDER OATH WHICH SUPPORT THE COMMISSION'S
FINDINGS.  CLAUSES ONE AND THREE OF THE COMMISSION'S ORDER SHOULD BE
SUSTAINED AND ENFORCED. 

THE SEVENTH CLAUSE OF THE COMMISSION'S ORDER FORBADE THE USE OF NAMES
OF PERSONS AS CONTRIBUTORS OR EDITORS WHO HAD NOT CONSENTED TO SUCH USE
AND WHO HAD NEITHER ACTUALLY CONTRIBUTED TO THE PUBLICATIONS NOR HELPED
TO EDIT THEM. 

THE COURT OF APPEALS UPHELD THIS CLAUSE EXCEPT AS IT MIGHT APPLY TO
THE ORIGINAL CONTRIBUTORS TO AITON'S ENCYCLOPEDIA SAYING THAT "IT SEEMS
TO US NOT 'UNFAIR' TO ANNOUNCE AS CONTRIBUTORS TO THE DERIVED WORKS
THOSE WHO HAVE BEEN CONTRIBUTORS TO THE ORIGINAL."  AITON'S
ENCYCLOPEDIA WAS PUBLISHED ABOUT 1909, AND RESPONDENTS' WORKS REPRESENT
THE RESULT OF PERIODIC REVISIONS AND EXPANSIONS OF THE PRIOR WORK.  THE
GOVERNMENT CONCEDES IN ITS BRIEF THAT THIS CLAUSE OF THE COMMISSION'S
ORDER DOES NOT PREVENT RESPONDENTS FROM REPRESENTING A PERSON WHO
CONTRIBUTED TO THE ORIGINAL, AS A CONTRIBUTOR TO THEIR REVISED
PUBLICATION, IF "SOME OF THE MATERIAL ORIGINALLY IN AITON'S
ENCYCLOPEDIA REMAINED IN THE NEW EDITION OF THE REVISED WORK." 
RESPONDENTS AGREE WITH THIS INTERPRETATION.  AS BETWEEN THESE PARTIES,
THEREFORE, THIS CLAUSE PERMITS RESPONDENTS TO REPRESENT ANY PERSON AS A
CONTRIBUTOR TO THEIR PRESENT REVISED ENCYCLOPEDIA, IF A PART OF HIS
ORIGINAL MATERIAL HAS BEEN CARRIED FORWARD TO IT. IF NO PART OF HIS
CONTRIBUTION TO AITON'S ENCYCLOPEDIA HAS BEEN BROUGHT FORWARD, HE IS
NOT A CONTRIBUTOR AND SHOULD NOT BE REPRESENTED AS SUCH.  THIS CLAUSE
AS ORIGINALLY DECLARED BY THE COMMISSION WOULD, UNDER THIS
INTERPRETATION, PROPERLY FORBID RESPONDENTS FROM FALSELY REPRESENTING
AS CONTRIBUTORS OR EDITORS THOSE WHO HAD ACTUALLY NEITHER CONTRIBUTED
TO, NOR EDITED, THE PUBLICATIONS.  THE DECREE OF THE COURT BELOW
MODIFYING THIS CLAUSE IS NOT IN ACCORDANCE WITH OUR CONCLUSION, AND
CLAUSE SEVEN OF THE COMMISSION'S ORDER SHOULD BE ENFORCED. 

THE COURT OF APPEALS REVERSED THE EIGHTH CLAUSE OF THE ORDER OF THE
COMMISSION.  THE REASON GIVEN BY THE COURT BELOW FOR THIS ACTION WAS AS
FOLLOWS: 

"FOR THE EIGHTH, WHICH FORBAD THE USE OF SUCH TESTIMONIALS WHICH HAD
NOT BEEN GIVEN BY THE PERSON WHOSE NAME WAS USED, WE HAVE BEEN ABLE TO
FIND NO SUPPORT IN THE EVIDENCE;..." 

WE ARE CONVINCED THAT THE COMMISSION'S FINDINGS OF FACT JUSTIFIED
THIS CLAUSE OF THE ORDER AND THAT THE TESTIMONY SUPPORTS THESE
FINDINGS.  FN2 

THE COURT OF APPEALS ENTIRELY EXCLUDED RESPONDENT GREENER FROM THE
OPERATION OF THE COMMISSION'S ORDER, AND PARTIALLY EXCLUDED RESPONDENTS
STANFORD AND WARD.  THE COMMISSION HAD FOUND FROM THE TESTIMONY THAT 

"RESPONDENTS H. M. STANFORD, W. H. WARD, AND A. J. GREENER ARE THE
MANAGERS AND SOLE STOCKHOLDERS OF RESPONDENT STANDARD EDUCATION SOCIETY
AND THE MANAGERS AND SOLE INCORPORATORS OF RESPONDENT STANDARD
ENCYCLOPEDIA CORPORATION  ...  THE COMMISSION CONCLUDES AND INFERS FROM
THE RECORD IN THIS CASE AND SO FINDS THAT THIS CORPORATION WAS
ORGANIZED BY THE INDIVIDUAL RESPONDENT FOR THE PURPOSE OF EVADING ANY
ORDER THAT MIGHT BE ISSUED BY THE FEDERAL TRADE COMMISSION AGAINST THE
RESPONDENT THE STANDARD EDUCATION SOCIETY." 

THERE WAS AMPLE SUPPORT IN THE TESTIMONY FOR THIS FINDING OF THE
COMMISSION. 

THE FEDERAL TRADE COMMISSION ACT (SUPRA) GIVES THE COMMISSION POWER
TO "PREVENT PERSONS, PARTNERSHIPS OR CORPORATIONS,  ...  FROM USING
UNFAIR METHODS OF COMPETITION IN COMMERCE." 

THIS COURT HAS HELD THAT "A COMMAND TO THE CORPORATION IS IN EFFECT A
COMMAND TO THOSE WHO ARE OFFICIALLY RESPONSIBLE FOR THE CONDUCT OF ITS
AFFAIRS.  IF THEY, APPRISED OF THE WRIT DIRECTED TO THE CORPORATION,
PREVENT COMPLIANCE  ...  THEY, NO LESS THAN THE CORPORATION ITSELF, ARE
GUILTY OF DISOBEDIENCE AND MAY BE PUNISHED FOR CONTEMPT."  WILSON V.
UNITED STATES, 221 U.S. 361, 376. 

RESPONDENTS STANFORD, WARD AND GREENER, WHO ARE IN CHARGE AND CONTROL
OF THE AFFAIRS OF RESPONDENT CORPORATIONS, WOULD BE BOUND BY A CEASE
AND DESIST ORDER RENDERED AGAINST THE CORPORATIONS.  SINCE
CIRCUMSTANCES, DISCLOSED BY THE COMMISSION'S FINDINGS AND THE
TESTIMONY, ARE SUCH THAT FURTHER EFFORTS OF THESE INDIVIDUAL
RESPONDENTS TO EVADE ORDERS OF THE COMMISSION MIGHT BE ANTICIPATED, IT
WAS PROPER FOR THE COMMISSION TO INCLUDE THEM IN ITS CEASE AND DESIST
ORDER. 

THE RECORD IN THIS CASE DISCLOSES CLOSELY HELD CORPORATIONS OWNED,
DOMINATED AND MANAGED BY THESE THREE INDIVIDUAL RESPONDENTS.  IN THIS
MANAGEMENT THESE THREE RESPONDENTS ACTED WITH PRACTICALLY THE SAME
FREEDOM AS THOUGH NO CORPORATION HAD EXISTED.  SO FAR AS CORPORATE
ACTION WAS CONCERNED, THESE THREE WERE THE ACTORS.  UNDER THE
CIRCUMSTANCES OF THIS PROCEEDING, THE COMMISSION WAS JUSTIFIED IN
REACHING THE CONCLUSION THAT IT WAS NECESSARY TO INCLUDE RESPONDENTS
STANFORD, WARD AND GREENER IN EACH PART OF ITS ORDER IF IT WAS TO BE
FULLY EFFECTIVE IN PREVENTING THE UNFAIR COMPETITIVE PRACTICES WHICH
THE COMMISSION HAD FOUND TO EXIST.  THE COURT BELOW WAS IN ERROR IN
EXCLUDING THESE RESPONDENTS FROM THE OPERATION OF THE COMMISSION'S
ORDER.    THE DECREE BELOW WILL BE REVERSED EXCEPT AS TO MODIFICATION
OF CLAUSE TEN OF THE COMMISSION'S ORDER, AND THE CAUSE IS REMANDED WITH
INSTRUCTIONS TO PROCEED IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  FEDERAL TRADE COMMISSION ACT, SEPT. 26, 1914, 38 STAT. 717,
U.S.C. TITLE 15, SEC. 45.    FN2  FROM PARAGRAPHS FOURTEEN AND FIFTEEN
OF THE COMMISSION'S FINDINGS IT APPEARS THAT RESPONDENTS USED THE NAMES
OF VARIOUS INDIVIDUALS IN TESTIMONIALS AND THAT 

"NONE OF THESE MEN OR THIS WOMAN EVER WROTE ANY TESTIMONIAL OR
RECOMMENDATION OF OR CONCERNING THE NEW STANDARD ENCYCLOPEDIA.  THE
REPRESENTATIONS THAT THESE MEN AND THIS WOMAN WROTE THE RECOMMENDATIONS
FOR THE SO-CALLED 'NEW STANDARD ENCYCLOPEDIA' ARE FALSE, DECEPTIVE AND
MISLEADING." 
..END :
























GREAT LAKES CORP. V. S.S. CO., 301 U.S. 646 


NO. 716.  ARGUED APRIL 28, 29, 1937.  - DECIDED JUNE 1, 1937.  - 86
F.(2D) 740, REVERSED. 


1.  WHERE A COMMON CARRIER BY WATER, BY ITS BILLS OF LADING AND
TARIFFS, WAIVES THE EXEMPTIONS OF THE HARTER ACT AND ACCEPTS LIABILITY
AS INSURER OF CARGO AGAINST MARINE PERILS, IT IS ENTITLED TO INSURE
ITSELF AGAINST THAT LIABILITY.  P. 651. 

2.  WHERE A CARRIER, BY AGREEMENT WITH SHIPPERS, ASSUMES LIABILITY AS
INSURER OF CARGO AGAINST MARINE PERILS, THE LIABILITY IS NOT DIMINISHED
BY A FURTHER STIPULATION THAT THE CARRIER WILL OBTAIN MARINE INSURANCE
FROM OTHERS.  P. 652. 

3.  POLICIES OF INSURANCE ISSUED TO A STEAMSHIP COMPANY, NAMING IT AS
THE ASSURED, CONTEMPLATED THAT THE ASSURED, AS COMMON CARRIER, WOULD
TAKE UPON ITSELF FULL LIABILITY TO CARGO OWNERS FOR DAMAGE AND LOSS DUE
TO PERILS OF THE SEA, AND EXPRESSLY AGREED TO INDEMNIFY THE ASSURED
AGAINST THAT LIABILITY.  HELD: 

(1)  THAT AMBIGUITIES, IF ANY, RAISED BY OTHER CLAUSES, MUST BE
RESOLVED SO AS STILL TO GIVE EFFECT TO THIS DOMINANT PURPOSE TO INSURE
THE CARRIER.  P. 652. 

(2)  THE FACTS THAT THE POLICIES INSURED THE CARRIER "FOR ACCOUNT OF
WHOM IT MAY CONCERN," AND THAT LOSS WAS PAYABLE TO THE CARRIER "OR
ORDER," AND THAT THE COST OF THE INSURANCE WAS INCLUDED IN THE
CARRIER'S RATES TO CARGO OWNERS, DID NOT JUSTIFY TREATING THE POLICIES
AS TAKEN OUT BY THE CARRIER NOT FOR ITS OWN PROTECTION BUT FOR
INSURANCE OF CARGO OWNERS.  P. 653. 

4.  A CARRIER'S RATE TO CARGO MAY PROPERLY COVER ALL REASONABLE
EXPENSES INCIDENT TO THE TRANSPORTATION, INCLUDING THE COST OF INSURING
THE CARRIER AGAINST LIABILITY WHICH IT HAS ASSUMED TO CARGO FOR DAMAGES
AND LOSSES CAUSED BY MARINE PERILS.  P. 653. 

5.  A POLICY INSURING A CARRIER AGAINST LOSS AND DAMAGE TO CARGO FROM
MARINE PERILS MAY INURE TO THE BENEFIT OF SHIPPERS.  P. 653. 

6.  WHERE A CARRIER, HAVING ASSUMED LIABILITY TO CARGO FOR LOSS OR
DAMAGE FROM MARINE PERILS AND HAVING INSURED ITSELF AGAINST THAT
LIABILITY, PAYS ITS SHIPPERS FOR LOSSES SUFFERED IN A COLLISION IN
WHICH BOTH VESSELS WERE AT FAULT AND COLLECTS THE AMOUNT FROM ITS
UNDERWRITERS, THE UNDERWRITERS MAY HAVE AN EQUITY OF SUBROGATION
AGAINST THE OTHER VESSEL FOR A MOIETY OF WHAT THEY PAID; BUT THEY
CANNOT USE THAT RIGHT TO RECOVER OVER AGAINST THE CARRIER THEY
INSURED.  P. 653. 

GREAT LAKES TRANSIT CORP. V. INTERSTATE STEAMSHIP CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 300 U.S. 650, TO REVIEW THE AFFIRMANCE OF A DECREE IN
ADMIRALTY ADJUDGING TWO VESSELS AT FAULT AND ADJUDGING THAT INTERVENING
UNDERWRITERS RECOVER, FROM EACH OF THE VESSELS AND THEIR RESPECTIVE
OWNERS, A MOIETY OF PAYMENTS MADE UNDER POLICIES INSURING ONE OF THE
CARRIERS AGAINST LIABILITY TO CARGO. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

A COLLISION OCCURRED IN THE ST. CLAIR RIVER BETWEEN THE VESSEL
"GEORGE D. DIXON" OWNED BY THE PETITIONER, GREAT LAKES TRANSIT
CORPORATION, AND THE VESSEL "WILLIS L. KING" OWNED BY THE INTERSTATE
STEAMSHIP COMPANY.  EACH OWNER BROUGHT A LIBEL IN ADMIRALTY AGAINST THE
OTHER.  THE SUITS WERE CONSOLIDATED.  THE ATLANTIC MUTUAL INSURANCE
COMPANY AND OTHER UNDERWRITERS HAVING PAID TO THE PETITIONER, UNDER
INSURANCE POLICIES PROCURED BY IT, THE AMOUNT OF CARGO DAMAGE AND LOSS
WHICH PETITIONER HAD PAID TO OWNERS OF THE CARGO CARRIED BY THE
"DIXON," INTERVENED AND CLAIMED THE RIGHT THROUGH SUBROGATION TO
RECOVER THE AMOUNT THUS PAID FROM THE INTERSTATE STEAMSHIP COMPANY AND
ITS VESSEL, THE "KING."  FN1 

THE DISTRICT COURT ENTERED A DECREE ADJUDGING BOTH VESSELS AT FAULT
AND THAT THE INTERVENING UNDERWRITERS SHOULD RECOVER FROM EACH OF THE
VESSELS AND THEIR RESPECTIVE OWNERS A MOIETY OF THE AMOUNTS PAID AND
PAYABLE UNDER THE POLICIES.  THE DECREE WAS AFFIRMED BY THE CIRCUIT
COURT OF APPEALS.  86 F.(2D) 740.  IN VIEW OF THE IMPORTANCE OF THE
ISSUE, CERTIORARI WAS GRANTED, LIMITED TO THE QUESTION OF THE
CORRECTNESS OF THE DECREE IN DIRECTING RECOVERY FROM THE PETITIONER. 

PETITIONER'S CONTENTION IS THAT THE INSURANCE POLICIES WERE CONTRACTS
BETWEEN THE UNDERWRITERS AND THE PETITIONER UNDER WHICH THE LATTER WAS
ENTITLED TO BE INDEMNIFIED FOR THE LIABILITY IT HAD ASSUMED UNDER ITS
BILL OF LADING AND ITS TARIFF PROVISIONS; THAT THE UNDERWRITERS WERE
NOT ENTITLED TO RECOVER BACK FROM PETITIONER WHAT THEY HAD PAID IT IN
DISCHARGE OF THEIR OBLIGATION.  THE UNDERWRITERS INSIST THAT THEIR
POLICIES INSURED CARGO AND THAT THEIR PAYMENTS WERE MADE FOR CARGO'S
BENEFIT; THAT, THE CARGO DAMAGE AND LOSS HAVING BEEN PAID, THEY WERE
ENTITLED BY SUBROGATION TO A DECREE FOR THE FULL DAMAGE AGAINST THE
"KING"; THAT AS BOTH VESSELS WERE AT FAULT THE "KING" WAS ENTITLED TO
CONTRIBUTION FROM THE "DIXON," AND THAT THE DECREE IN AVOIDANCE OF
CIRCUITY HAD FIXED THE ULTIMATE LIABILITIES BY REQUIRING EACH VESSEL TO
PAY A MOIETY. 

THE CARGO ON THE "DIXON" WAS CARRIED UNDER UNIFORM BILLS OF LADING,
APPROVED BY THE INTERSTATE COMMERCE COMMISSION, WHICH AFTER REFERRING
IN SEC. 9(A) TO THE EXEMPTIONS CONTAINED IN THE HARTER ACT (46 U.S.C.
190 ET SEQ.), PROVIDED IN SEC. 9(E) AS FOLLOWS: 

"IF THE PROPERTY IS BEING CARRIED UNDER A TARIFF WHICH PROVIDES THAT
ANY CARRIER OR CARRIERS PARTY THERETO SHALL BE LIABLE FOR LOSS FROM
PERILS OF THE SEA, THEN AS TO SUCH CARRIER OR CARRIERS THE PROVISIONS
OF THIS SECTION SHALL BE MODIFIED IN ACCORDANCE WITH THE TARIFF
PROVISIONS, WHICH SHALL BE REGARDED AS INCORPORATED INTO THE CONDITIONS
OF THIS BILL OF LADING." 

THE COURT BELOW CONCLUDED, AND WE THINK RIGHTLY, THAT BY THE
APPLICABLE TARIFFS THE PETITIONER WAIVED THE SAVING CLAUSES OF THE
HARTER ACT AND ASSUMED FULL LIABILITY TO THE CARGO OWNERS FOR LOSS OR
DAMAGE CAUSED BY MARINE PERILS.  FN2  WHILE THESE TARIFFS WERE NOT
UNIFORM THEY ALSO EITHER STATED OR FAIRLY IMPORTED THAT THE SPECIFIED
RATES SHOULD INCLUDE MARINE INSURANCE. 

THE POLICIES OF INSURANCE HAD THE FOLLOWING RIDER, BY WHICH THE
UNDERWRITERS AGREED TO INSURE THE GREAT LAKES TRANSIT CORPORATION, FOR
ACCOUNT OF WHOM IT MAY CONCERN, LOSS, IF ANY, TO BE PAYABLE TO THE
GREAT LAKES TRANSIT CORPORATION OR ORDER,  - 

"ON CARGO OF ANY KIND OWNED BY THE ASSURED AND ON THE ASSURED'S
LIABILITY TO OTHERS IN RESPECT TO CARGO OF ANY KIND COVERING SAME FROM
TIME SAID GREAT LAKES TRANSIT CORPORATION BECOMES RESPONSIBLE THEREFOR
AND UNTIL ITS RESPONSIBILITY CEASES, WHERESOEVER THE SAME MAY BE,
INCLUDING RISKS WHILE ON DOCKS, IN AND/OR ON CARS ON DOCKS, PIERS,
WHARVES, LIGHTERS AND/OR CRAFT, TRANSFERS, AND ALL LAND CONVEYANCES,
AND ALSO TO COVER UPON ANY ADVANCES MADE BY AND PAYMENT OF BACK CHARGES
MADE BY OR DUE FROM SAID ASSURED, AND UPON ANY CHARGES OF SAID ASSURED
UPON ANY AND ALL CARGO OR ANY PORTION THEREOF; FROM THE TIME THE
ASSURED BECOMES RESPONSIBLE FOR SUCH CARGO INCLUDING RISKS OF TRANS
SHIPMENT, AND UNDER AND/OR ON DECK ON BOARD OF THE ASSURED'S STEAMERS: 

     .         .  .         .         . 

"ALSO TO COVER THROUGH TO DESTINATION GOODS DELIVERED BY THE ASSURED
TO OTHER WATER TRANSPORTATION COMPANIES FOR SHIPMENT TO DESTINATION." 

THE POLICIES FURTHER PROVIDED THAT, THE ASSURED TAKING "ALL THE
RISKS, PERILS AND LIABILITIES WHICH BY LAW A COMMON CARRIER BY LAND OR
WATER ASSUMES, AND ALSO THE INSURANCE OF SAID CARGO AGAINST PERILS OF
THE SEAS AND LAKES" ETC., THE ASSURERS AGREED "TO INDEMNIFY AND HOLD
HARMLESS" THE ASSURED AGAINST ANY LOSS OR DAMAGE TO CARGO FROM ALL SUCH
RISKS, PERILS, ETC., "TO THE EXTENT WHICH THE ASSURED MAY BE HELD BY
THE OWNERS THEREOF, UNDER ANY LIABILITY THE ASSURED SHALL HAVE ASSUMED
AS COMMON CARRIERS, INSURERS OR OTHERWISE."  FN3 

WE ARE UNABLE TO ACCEPT THE VIEW THAT THE PROVISIONS WE HAVE QUOTED
CANNOT AVAIL PETITIONER "BECAUSE IT DID NOT TAKE UPON ITSELF THE
INSURANCE OF CARGO OR ASSUME ANY LIABILITY WITH REFERENCE THERETO AS AN
INSURER"; THAT "ITS OBLIGATION AS TO INSURANCE WENT NO FURTHER THAN TO
REQUIRE IT TO PROCURE POLICIES OF INSURANCE FROM OTHERS."  PETITIONER
DID MORE THAN AGREE TO OBTAIN MARINE INSURANCE.  PETITIONER BY ITS
TARIFFS WAIVED THE PROVISIONS OF THE HARTER ACT AND BECAME ITSELF AN
INSURER OF THE CARGO AGAINST MARINE PERILS.  THE AGREEMENT TO OBTAIN
MARINE INSURANCE DID NOT DETRACT FROM THAT UNDERTAKING.  HAD THE
UNDERWRITERS BEEN UNABLE TO RESPOND TO THEIR CONTRACTS, PETITIONER
WOULD STILL HAVE BEEN LIABLE TO THE CARGO OWNERS UPON ITS OWN
ENGAGEMENT.  HAVING ASSUMED THAT LIABILITY, PETITIONER WAS UNDOUBTEDLY
ENTITLED TO TAKE OUT POLICIES FOR ITS OWN PROTECTION.  SEE WYMAN,
PARTRIDGE & CO. V. BOSTON & MAINE R. CO., 13 I.C.C. 258, 262; 15 I.C.C.
577, 581; 19 I.C.C. 551, 553.  IT IS A FAMILIAR RULE THAT A COMMON
CARRIER "WHETHER LIABLE BY LAW OR CUSTOM TO THE SAME EXTENT AS AN
INSURER, OR ONLY FOR HIS OWN NEGLIGENCE, MAY, IN ORDER TO PROTECT
HIMSELF AGAINST HIS OWN RESPONSIBILITY, AS WELL AS TO SECURE HIS LIEN,
CAUSE THE GOODS IN HIS CUSTODY TO BE INSURED TO THEIR FULL VALUE." 
PHOENIX INSURANCE CO. V. ERIE TRANSPORTATION CO., 117 U.S. 312, 323,
324, AND CASES THERE CITED.  "I SEE NOTHING REMARKABLE," SAID LORD
CHIEF JUSTICE RUSSELL IN HILL V. SCOTT, L.R. (1895) 2 Q.B.D. 371, 375,
"IN THE SHIPOWNER INSURING HIMSELF.  IN A CASE WHERE THERE WAS A BILL
OF LADING WITH WIDELY SWEEPING EXCEPTIONS, NO DOUBT IT WOULD BE
UNNECESSARY; BUT WHERE, AS HERE, THERE IS NO BILL OF LADING, THE
SHIPOWNER FREQUENTLY EFFECTS AN INSURANCE IN ORDER TO PROTECT HIMSELF
AGAINST LIABILITY."  SEE, ALSO, THE SAME CASE, ON APPEAL, ID., PP. 713,
714. 

THE POLICIES ISSUED TO PETITIONER EXPLICITLY AFFORDED THE PROTECTION
WHICH THE PETITIONER WAS ENTITLED TO SEEK BY VIRTUE OF THE RISKS IT HAD
ASSUMED.  THE PETITIONER WAS THE "ASSURED" NAMED IN THE POLICIES. 
THEIR TERMS CONTEMPLATED THAT THE ASSURED AS A COMMON CARRIER WOULD
TAKE UPON ITSELF FULL LIABILITY TO THE CARGO OWNERS FOR ALL DAMAGE AND
LOSS DUE TO PERILS OF THE SEA, AND THE UNDERWRITERS EXPRESSLY AGREED TO
INDEMNIFY THE ASSURED AGAINST THAT LIABILITY.  THERE IS NO ADMISSIBLE
CONSTRUCTION OF THE POLICIES WHICH CAN ELIMINATE OR FRUSTRATE THAT
UNDERTAKING.  IN ITS PRESENCE, IF AMBIGUITIES ARE RAISED BY OTHER
CLAUSES, THEY MUST BE RESOLVED SO AS STILL TO GIVE EFFECT TO THE
DOMINANT PURPOSE WHICH THE POLICIES CLEARLY REVEAL. 

THE FACT THAT THE POLICIES INSURED THE PETITIONER, GREAT LAKES
TRANSIT CORPORATION "FOR ACCOUNT OF WHOM IT MAY CONCERN" AND THAT THE
LOSS WAS PAYABLE TO THE GREAT LAKES TRANSIT CORPORATION "OR ORDER" DID
NOT ALTER THE FACT THAT THE GREAT LAKES TRANSIT CORPORATION WAS ITSELF
DIRECTLY CONCERNED OR DETRACT FROM THE STIPULATION RUNNING TO THAT
CORPORATION AS A CARRIER AND AFFORDING IT THE SPECIFIED INDEMNITY.  NOR
DOES THE FACT THAT THE COST OF THE INSURANCE WAS INCLUDED IN THE
CARRIER'S RATE AFFECT THE QUESTION.  THE RATE WOULD PROPERLY COVER ALL
THE REASONABLE EXPENSES INCIDENT TO THE TRANSPORTATION, AND WHEN THE
CARRIER ASSUMED LIABILITY TO THE CARGO OWNERS FOR DAMAGES AND LOSSES
CAUSED BY MARINE PERILS, THERE WAS NOTHING UNREASONABLE IN THE
CARRIER'S PROTECTING ITSELF AGAINST THAT RISK BY PROCURING INSURANCE
AND COVERING THE COST IN ITS RATE.  COMPARE WYMAN, PARTRIDGE & CO. V.
BOSTON & MAINE R. CO., SUPRA.  AND IF IT BE ASSUMED, AS WE DO ASSUME,
THAT THE INSURANCE WOULD INURE TO THE BENEFIT OF THE CARGO OWNERS, THAT
WOULD BE A PROTECTION TO THOSE OWNERS ADDITIONAL TO THAT AFFORDED BY
THE CARRIER'S OWN ENGAGEMENT WHICH STILL REMAINED EFFECTIVE AND COVERED
BY THE STIPULATION IN THE POLICIES FOR THE BENEFIT OF THE CARRIER.  BY
REASON OF THAT COVERAGE THE UNDERWRITERS WERE BOUND TO PAY, AND DID
PAY, TO THE PETITIONER, THE AMOUNTS WHICH THE LATTER BECAME LIABLE TO
PAY AND HAD PAID TO THE CARGO OWNERS UNDER THE CONTRACTS OF CARRIAGE. 

THESE PAYMENTS HAVING BEEN MADE, THE UNDERWRITERS NOW SEEK TO RECOVER
BACK FROM THE PETITIONER A MOIETY OF WHAT THEY HAVE PAID TO IT.  IT IS
SAID THAT THIS RESULTS FROM THE ADMIRALTY RULE FOR A DIVISION OF
DAMAGES IN CASE OF FAULT ON THE PART OF BOTH VESSELS INVOLVED IN THE
COLLISION, AND THAT THE DECREE FOR A RECOVERY BY THE UNDERWRITERS FROM
THE PETITIONER IS FOR THE PURPOSE OF AVOIDING CIRCUITY OF ACTION.  THE
EFFECT NONE THE LESS IS TO ENABLE THE UNDERWRITERS TO GET BACK ONE-HALF
OF THE AMOUNTS THEY HAD EXPRESSLY AGREED TO PAY TO PETITIONER FOR ITS
INDEMNITY. 

THE UNDERWRITERS SEEK TO SUSTAIN THE DECREE BY INVOKING THE DOCTRINE
OF SUBROGATION, BUT THE EQUITY OF SUBROGATION INVESTS THE UNDERWRITERS
WITH THE RIGHTS OF THE ASSURED AGAINST THIRD PERSONS (PHOENIX INSURANCE
CO. V. ERIE TRANSPORTATION CO., SUPRA; WAGER V. PROVIDENCE INSURANCE
CO., 150 U.S. 99, 108; STANDARD MARINE INSURANCE CO. V. SCOTTISH
ASSURANCE CO., 283 U.S. 284, 286) NOT WITH A RIGHT TO OVERRIDE ITS OWN
OBLIGATION TO THE ASSURED.  THUS, WHEN A BILL OF LADING PROVIDES THAT
IN CASE OF LOSS THE CARRIER, IF LIABLE THEREFOR, SHALL HAVE THE FULL
BENEFIT OF ANY INSURANCE EFFECTED UPON THE GOODS, THE PROVISION LIMITS
THE RIGHT OF SUBROGATION OF THE INSURER, UPON PAYMENT TO THE SHIPPER,
TO RECOVER OVER AGAINST THE CARRIER.  PHOENIX INSURANCE CO. V. ERIE
TRANSPORTATION CO., SUPRA; WAGER V. PROVIDENCE INSURANCE CO., SUPRA.
SUCH A CLAUSE GIVING THE CARRIER THE BENEFIT OF INSURANCE EFFECTED BY
THE SHIPPER IS VALID "BECAUSE THE CARRIER MIGHT HIMSELF HAVE INSURED
AGAINST THE LOSS, EVEN THOUGH OCCASIONED BY HIS OWN NEGLIGENCE, AND IF
A SHIPPER UNDER A BILL OF LADING CONTAINING THIS PROVISION EFFECTS
INSURANCE AND IS PAID THE FULL AMOUNT OF HIS LOSS, NEITHER HE NOR THE
INSURER CAN RECOVER AGAINST THE CARRIER."  LUCKENBACH V. MCCAHAN SUGAR
CO., 248 U.S. 139, 146.  FOLLOWING THE SAME REASONING, WE HAVE SAID
THAT "IF A VALID CLAIM BY THE UNDERWRITER TO BE SUBROGATED TO THE
RIGHTS OF THE OWNER WILL NOT ARISE WHERE THE CARRIER HAS CONTRACTED
WITH THE OWNER THAT HE, THE CARRIER, SHALL HAVE THE BENEFIT OF ANY
INSURANCE, IT WOULD SEEM TO BE CLEAR THAT WHERE THE CARRIER IS ACTUALLY
AND IN TERMS THE PARTY INSURED, THE UNDERWRITER CAN HAVE NO RIGHT TO
RECOVER OVER AGAINST THE CARRIER, EVEN IF THE AMOUNT OF THE POLICY HAS
BEEN PAID BY THE INSURANCE COMPANY TO THE OWNER ON THE ORDER OF THE
CARRIER."  WAGER V. PROVIDENCE INSURANCE CO., SUPRA, PP. 108, 109. 
SEE, ALSO, THE JOHN RUSSELL, 68 F.(2D) 901, 902. 

CONSTRUING THE POLICIES IN THIS INSTANCE AS INDEMNIFYING THE CARRIER
AGAINST THE LIABILITY WHICH IT HAD ASSUMED BY ITS BILLS OF LADING AND
TARIFFS TO THE CARGO OWNERS, THE PAYMENTS BY THE UNDERWRITERS OPERATED
AS A DISCHARGE OF THEIR OBLIGATION TO THE CARRIER, AND WHILE, AS THE
CARGO OWNERS HAD THE BENEFIT OF THE INSURANCE, THE UNDERWRITERS COULD
BE SUBROGATED TO THE RIGHT OF THE CARGO OWNERS AGAINST THE "KING," THEY
COULD NOT USE THAT RIGHT TO RECOVER OVER AGAINST THE CARRIER IN
DEFIANCE OF THEIR OWN STIPULATION.  THEY COULD RECOVER AGAINST THE
"KING" THE MOIETY FOR WHICH THE "KING" WAS LIABLE BUT COULD NOT RECOVER
AGAINST THE PETITIONER.  THE PROCEDURE IN ADMIRALTY DID NOT AFFECT THE
SUBSTANTIVE RIGHTS ESTABLISHED BY THE POLICIES. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE CAUSE
IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 

FN1  THE UNDERWRITERS' CLAIM ALSO COVERED SUCH ADDITIONAL AMOUNTS AS
THEY WOULD BE CALLED UPON TO PAY AS FURTHER DAMAGES AND LOSSES TO CARGO
WERE ASCERTAINED AND WERE PAID BY PETITIONER. 

FN2  IT IS SUFFICIENT, FOR THE PRESENT PURPOSE, TO QUOTE THE
FOLLOWING FROM ONE OF THESE TARIFFS FILED BY THE PETITIONER:    "RULE
NO. 15.  - MARINE INSURANCE.  - RATES NAMED HEREIN INCLUDE MARINE
INSURANCE.  - WHILE SHIPMENTS SUBJECT TO RATES NAMED HEREIN AS
INCLUDING MARINE INSURANCE ARE WATER-BORNE AT AND BETWEEN LAKE PORTS,
ON THE VESSELS OF THE GREAT LAKES TRANSIT CORPORATION, SAID CORPORATION
ASSUMES LIABILITY FOR LOSS OR DAMAGE TO SAID SHIPMENTS CAUSED BY MARINE
PERILS, TO WIT:  OF THE SEAS AND LAKES, FIRE, COLLISION, STRANDING,
JETTISONS, PIRATES, ASSAILING THIEVES, BARRATRY OF THE MASTER OR
MARINERS AND ALL OTHER PERILS OR MISFORTUNES THAT HAVE OR SHALL COME TO
THE HURT OR DAMAGE OF SAID PROPERTY, OR ANY PART THEREOF, INCLUDING
GENERAL AVERAGE CHARGES AND EXPENSES FOR WHICH THE OWNER MAY, UNDER THE
MARITIME LAW, BE CHARGEABLE, BUT EXCLUDING THE RISKS OF RIOTS, WAR OR
INSURRECTIONS; ANY LOSS FROM SAID MARINE PERILS FOR WHICH SAID
CORPORATION IS LIABLE HEREUNDER, TO BE PAID SIXTY DAYS AFTER PROOF OF
LOSS AND PROOF OF INTEREST IN SAID PROPERTY HAVE BEEN FURNISHED." 

FN3  THE TEXT OF THE PROVISION REFERRED TO IS AS FOLLOWS: 

"IT IS AGREED BETWEEN THE PARTIES HERETO THAT SAID STEAMERS ARE TO BE
EMPLOYED IN CARRYING CARGO, OR CARGO AND PASSENGERS, IN AND ON SAID
STEAMERS AS AFORESAID, THE ASSURED TAKING UPON THEMSELVES AS TO SAID
CARGO, OR PARTS THEREOF, ALL THE RISKS, PERILS AND LIABILITIES WHICH BY
LAW A COMMON CARRIER BY LAND OR WATER ASSUMES, AND ALSO THE INSURANCE
OF SAID CARGO AGAINST PERILS OF THE SEAS AND LAKES, FIRE, JETTISONS,
BARRATRY, NEGLIGENCE OF MASTER OR MARINERS, LOSS OR DAMAGE ARISING
THROUGH EXPLOSIONS HOWSOEVER OR WHERESOEVER OCCURRING, BURSTING OF
BOILERS, BREAKAGE OF SHAFTS OR THROUGH ANY LATENT DEFECT IN THE
MACHINERY OR HULL, AND ALL OTHER ACTS, PERILS OR MISFORTUNES THAT HAVE
OR SHALL COME TO THE HURT, DETRIMENT, DAMAGE TO OR LOSS OF THE SAID
CARGO OR ANY PART THEREOF, AND THE SAID ASSURERS AGREE AND UNDERTAKE TO
INDEMNIFY AND HOLD HARMLESS THE SAID ASSURED AGAINST HURT, DETRIMENT,
DAMAGE TO OR LOSS OF SUCH CARGO FROM ANY AND ALL SUCH RISKS, PERILS,
ACTS OR MISFORTUNES, TO THE EXTENT WHICH THE ASSURED MAY BE HELD BY THE
OWNERS THEREOF, UNDER ANY LIABILITY THE ASSURED SHALL HAVE ASSUMED AS
COMMON CARRIERS, INSURERS, OR OTHERWISE, AND FOR ANY AND ALL CLAIMS
WHICH SAID CARGO MAY BE CALLED UPON TO CONTRIBUTE IN GENERAL AVERAGE,
AND/OR FOR SALVAGE, LANDING, WAREHOUSING AND/OR SPECIAL CHARGES, AND TO
COVER IN LIKE MANNER DUTIES AND ANY CARGO OWNED BY THE ASSURED, AND
ALSO ALL ADVANCES MADE BY AND PAYMENT OF BACK CHARGES MADE BY OR DUE
FROM SAID ASSURED AND/OR CHARGES OF SAID ASSURED UPON ANY AND ALL CARGO
OR ANY PORTION THEREOF. 

     .         .         .         .         . 

"IN CASE OF LOSS, SUCH LOSS TO BE PAID THIRTY DAYS AFTER PROOF OF
LOSS AND PROOF OF INTEREST ARE FURNISHED TO THIS COMPANY.  THERE SHALL,
HOWEVER, BE DEDUCTED FROM THE AGGREGATE OF ALL CLAIMS ON EACH EAST
BOUND OR WEST BOUND PASSAGE, THE SUM OF $1,000." 
..END :





















THOMAS V. PERKINS, 301 U.S. 655 


NO. 824.  ARGUED MAY 4, 5, 1937.  - DECIDED JUNE 1, 1937.  - 86 F.(2D)
954, AFFIRMED. 


1.  THE FEDERAL INCOME TAX ACT IS TO BE GIVEN A UNIFORM CONSTRUCTION
OF NATION-WIDE APPLICATION EXCEPT IN SO FAR AS CONGRESS HAS MADE IT
DEPENDENT ON STATE LAW.  P. 659. 

2.  AN INSTRUMENT ASSIGNING OIL LEASES FOR A SPECIFIED SUM "TO BE
PAID OUT OF THE OIL PRODUCED AND SAVED FROM THE LANDS, AND TO BE ONE
FOURTH OF ALL THE OIL PRODUCED AND SAVED" UNTIL THAT SUM WAS PAID,
PROVIDED THAT THE "OIL PAYMENT" SHOULD BE MADE TO THE TWO ASSIGNORS,
EACH TO RECEIVE ONE-HALF THEREOF "OUT OF THE OIL PRODUCED AND SAVED"
FROM THE LEASED PREMISES, "WHICH PAYMENTS SHALL BE MADE BY THE PIPE
LINE COMPANY OR OTHER PURCHASER OF SAID OIL" AND BE "ONE-FOURTH OF ALL
THE OIL PRODUCED AND SAVED" FROM THE LAND, "UNTIL THE FULL SUM IS FULLY
PAID."  IT FURTHER STIPULATED THAT THE SPECIFIED SUM SHOULD BE "PAYABLE
OUT OF OIL ONLY, IF, AS AND WHEN PRODUCED FROM SAID LANDS"; THAT "SAID
OIL PAYMENT" SHOULD NOT BE A PERSONAL OBLIGATION OF THE ASSIGNEE, AND
THAT IT WOULD "BEAR NONE OF THE EXPENSES OF THE DEVELOPMENT OF SAID OIL
LEASES OR ANY OTHER BURDEN."  NO LIEN WAS RESERVED BY THE ASSIGNORS. 
HELD, WITHOUT DECIDING WHETHER TECHNICAL TITLE TO THE OIL WHILE IN THE
GROUND WAS IN ASSIGNORS OR IN ASSIGNEE, 

(1)  THAT THE INTENTION WAS TO WITHOLD FROM THE OPERATION OF THE GRANT
ONE-FOURTH OF THE OIL TO BE PRODUCED AND SAVED UP TO AN AMOUNT
SUFFICIENT WHEN SOLD TO YIELD THE SUM STIPULATED.  P. 659. 

THIS CONSTRUCTION WAS CONFIRMED BY THE ACTS OF THE PARTIES UNDER THE
ASSIGNMENT. 

(2)  THAT THE AMOUNTS RECEIVED BY THE ASSIGNORS FROM THE PROCEEDS OF
OPERATION WERE NOT CHARGEABLE FOR INCOME TAX PURPOSES TO THE ASSIGNEE
AS PART OF HIS GROSS INCOME.  ID. 

THOMAS, COLLECTOR, V. PERKINS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 300 U.S. 653, TO REVIEW THE REVERSAL OF A JUDGMENT
RENDERED IN FAVOR OF THE COLLECTOR, IN AN ACTION TO RECOVER A TAX
PAYMENT, TRIED WITHOUT A JURY. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS, HUSBAND AND WIFE, SUED IN THE DISTRICT COURT FOR
NORTHERN TEXAS TO RECOVER A PORTION OF THE TAX THEY PAID FOR 1933 ON
THEIR COMMUNITY INCOME.  IN RESPECT OF THE AMOUNT NOW IN CONTROVERSY,
THAT COURT GAVE JUDGMENT FOR DEFENDANT (15 F.SUPP.  356); THE CIRCUIT
COURT OF APPEALS REVERSED (86 F.(2D) 954) AND, ITS DECISION BEING IN
APPARENT CONFLICT WITH THAT OF THE CIRCUIT COURT OF APPEALS FOR THE
EIGHTH CIRCUIT IN COMAR OIL CO. V. BURNET, 64 F.(2D) 965, THIS COURT
GRANTED THE COLLECTOR'S PETITION FOR A WRIT OF CERTIORARI. 

HAMMONDS AND BRANSON OWNED OIL AND GAS LEASES ON UNDEVELOPED LANDS IN
TEXAS WHICH PROVIDED FOR A ROYALTY OF ONE-EIGHTH.  THEY ASSIGNED TO THE
FAITH OIL COMPANY WHICH WAS PRINCIPALLY OWNED BY GREEN AND PERKINS.  IN
TAKING THE ASSIGNMENT THE COMPANY ACTED FOR ITSELF TO THE EXTENT OF ONE
FOURTH AND FOR GREEN AND PERKINS TO THE EXTENT OF THREE-EIGHTS EACH. 
LATER IT TRANSFERRED ITS INTEREST TO PERKINS.  SO FAR AS CONCERNS THE
QUESTION HERE PRESENTED, PERKINS MAY BE TREATED AS SOLE ASSIGNEE OF
HAMMONDS AND BRANSON.  THE ASSIGNMENT RECITES THAT THEY ARE OWNERS OF
ALL RIGHTS UNDER OR INCIDENT TO THE LEASES AND DECLARES THAT "IN
CONSIDERATION OF THE SUM OF TEN DOLLARS ($10.00) CASH.  FN1  ..  AND OF
THE FURTHER SUM OF THREE HUNDRED NINETY-FIVE THOUSAND DOLLARS
($395,000.00) TO BE PAID OUT OF THE OIL PRODUCED AND SAVED FROM THE
...  LANDS, AND TO BE ONE-FOURTH OF ALL THE OIL PRODUCED AND SAVED  ...
UNTIL THE FULL SUM  ...  IS PAID, WE  ...  DO HEREBY BARGAIN, SELL,
TRANSFER, ASSIGN, AND CONVEY ALL OUR RIGHTS, TITLE, AND INTEREST IN AND
TO SAID LEASES AND RIGHTS THEREUNDER." 

AFTER DESCRIPTION OF THE LANDS AND LEASEHOLDS, THE ASSIGNMENT
PROVIDES THAT THE OIL PAYMENT SHALL BE MADE TO THE ASSIGNORS, HAMMONDS
AND BRANSON, EACH TO RECEIVE ONE-HALF THEREOF, "OUT OF THE OIL PRODUCED
AND SAVED FROM" THE LEASED PREMISES, "WHICH PAYMENTS SHALL BE MADE BY
THE PIPE LINE COMPANY OR OTHER PURCHASER OF SAID OIL, AND SHALL BE ONE
FOURTH (1/4) OF ALL THE OIL PRODUCED AND SAVED FROM THE ABOVE DESCRIBED
LAND, UNTIL THE FULL SUM  ...  IS FULLY PAID."  IT IS UNDERSTOOD AND
AGREED THAT THE $395,000 "IS PAYABLE OUT OF OIL ONLY, IF, AS AND WHEN
PRODUCED FROM SAID LANDS ABOVE DESCRIBED, AND SAID OIL PAYMENT DOES NOT
CONSTITUTE AND SHALL NOT BE A PERSONAL OBLIGATION OF THE ASSIGNEE, ITS
SUCCESSORS OR ASSIGNS....  THE OIL PAYMENT  ...  SHALL BEAR NONE OF THE
EXPENSES OF THE DEVELOPMENT OF SAID LEASES OR ANY OTHER BURDEN."  THE
INSTRUMENT DOES NOT PURPORT TO RESERVE A LIEN. 

PERKINS DRILLED WELLS ON THE LEASED LANDS AND IN 1933 PRODUCED OIL;
THE ASSIGNORS RECEIVED SUBSTANTIAL AMOUNTS TO APPLY ON THE PAYMENT TO
BE MADE THEM; THE OIL WAS RUN FROM THE WELLS INTO TANKS ON THE LEASED
PREMISES FROM WHICH IT WAS TAKEN BY PIPELINE COMPANIES PURCHASING THE
OIL.  EACH PURCHASER REQUIRED AND WAS FURNISHED A DIVISION ORDER
EXECUTED BY ALL THE INTERESTED PARTIES.  BY SUCH ORDERS ASSIGNORS
AUTHORIZED PURCHASERS TO RECEIVE FROM THE WELLS ONE-FOURTH OF THE OIL
AND DECLARED THAT THE OIL RUN SHOULD BECOME THE PROPERTY OF THE
PURCHASERS AS SOON AS RECEIVED BY THEM.  IN ACCORDANCE WITH THE ORDERS,
PURCHASERS MADE PAYMENTS DIRECTLY AND PROPORTIONATELY TO THE OWNER OF
THE ROYALTY RESERVED IN THE LEASE, TO ASSIGNORS, AND TO ASSIGNEE.  THE
LAST COULD NOT COLLECT FOR ANY PORTION OF THE OIL APPLICABLE TO THE OIL
PAYMENT TO BE MADE ASSIGNORS. 

IN THEIR TAX RETURN FOR 1933 RESPONDENTS, PERKINS AND WIFE, DID NOT
INCLUDE IN INCOME ANY PART OF THE PROCEEDS THAT WENT TO ASSIGNORS.  BUT
THE COMMISSIONER CHARGED THE AMOUNTS RECEIVED BY THE ASSIGNORS TO THE
RESPONDENTS AND ALLOWED THE LATTER DEPLETION IN RESPECT OF THE SAME. 
AT THE TRIAL IT WAS PROVED THAT THE LONG-ESTABLISHED PRACTICE OF THE
BUREAU WAS NOT TO REQUIRE THE OPERATOR OF AN OIL AND GAS LEASE TO
INCLUDE AS A PART OF HIS INCOME THE ROYALTIES PAYABLE IN KIND TO THE
LESSORS.  BUT WHERE THEY WERE PAYABLE IN CASH THE OPERATOR INCLUDED THE
PROCEEDS OF ALL THE OIL AND TOOK AS AN OFFSETTING DEDUCTION THE AMOUNT
OF ROYALTIES PAID.  IT WAS ADMITTED THAT, IF THE ASSIGNORS' PAYMENTS
ARE EXCLUDED, THE DEPLETION ALLOWED RESPONDENTS SHOULD BE
CORRESPONDINGLY REDUCED. 

THE QUESTION IS WHETHER RESPONDENTS' GROSS INCOME SHOULD INCLUDE
MONEYS PAID TO ASSIGNORS BY PURCHASERS OF THE OIL. 

WE NEED NOT DECIDE WHETHER TECHNICAL TITLE TO THE OIL WHILE IN THE
GROUND WAS IN ASSIGNORS, OR IN ASSIGNEE.  THE FEDERAL INCOME TAX ACT IS
TO BE GIVEN A UNIFORM CONSTRUCTION OF NATION-WIDE APPLICATION EXCEPT
INSOFAR AS CONGRESS HAS MADE IT DEPENDENT ON STATE LAW.  FN2  THE
GRANTING CLAUSE IN THE ASSIGNMENT WOULD BE SUFFICIENT, IF STANDING
ALONE, TO TRANSFER ALL THE OIL TO THE ASSIGNEE.  IT DOES NOT
SPECIFICALLY EXCEPT OR EXCLUDE ANY PART OF THE OIL.  BUT IT IS
QUALIFIED BY OTHER PARTS OF THE INSTRUMENT.  THE PROVISIONS FOR PAYMENT
TO ASSIGNORS IN OIL ONLY, THE ABSENCE OF ANY OBLIGATION OF THE ASSIGNEE
TO PAY IN OIL OR IN MONEY, AND THE FAILURE OF ASSIGNORS TO TAKE ANY
SECURITY BY WAY OF LIEN OR OTHERWISE UNMISTAKABLY SHOW THAT THEY
INTENDED TO WITHHOLD FROM THE OPERATION OF THE GRANT ONE-FOURTH OF THE
OIL TO BE PRODUCED AND SAVED UP TO AN AMOUNT SUFFICIENT WHEN SOLD TO
YIELD $395,000.  FN3 

THE CONSTRUCTION THAT THE PARTIES PUT UPON THE ASSIGNMENT MAKES FOR
THE SAME CONCLUSION.  THERE IS NO SUGGESTION THAT, HAVING TAKEN TITLE,
THE ASSIGNEE TRANSFERRED ANY OF THE OIL BACK TO ASSIGNORS.  THE
DIVISION ORDERS DESIGNATED, AND SO SERVED TO INDICATE OWNERSHIP OF, THE
QUANTITIES BELONGING TO EACH OF THE INTERESTED PARTIES.  AND, IN THE
CIRCUMSTANCES, THE ORDERS GIVEN AND PROCEEDS RECEIVED BY ASSIGNORS
NECESSARILY COVERED AND WERE DERIVED FROM OIL NOT TRANSFERRED BY THE
ASSIGNMENT. 

OUR DECISION IN PALMER V. BENDER, 287 U.S. 551, SUPPORTS THE VIEW
THAT THE ASSIGNMENT DID NOT TRANSFER THE OIL IN QUESTION.  WE THERE
CONSTRUED SEC. 214(A)(10), REVENUE ACT OF 1921, 42 STAT. 241, WHICH
DIRECTED A REASONABLE ALLOWANCE FOR DEPLETION IN THE CASE OF OIL AND
GAS WELLS "ACCORDING TO THE PECULIAR CONDITIONS IN EACH CASE" AND "THAT
SUCH DEPLETION ALLOWANCE BASED ON DISCOVERY VALUE SHALL NOT EXCEED THE
NET INCOME, COMPUTED WITHOUT ALLOWANCE FOR DEPLETION, FROM THE PROPERTY
UPON WHICH THE DISCOVERY IS MADE  ...  IN THE CASE OF LEASES THE
DEDUCTIONS ALLOWED ...  SHALL BE EQUITABLY APPORTIONED BETWEEN THE
LESSOR AND THE LESSEE." 

THE TAXPAYER, PALMER, WAS A MEMBER OF A PARTNERSHIP THAT ACQUIRED OIL
AND GAS LEASES, DISCOVERED OIL, EXECUTED A WRITING CONFERRING ON A
COMPANY THE RIGHT TO TAKE OVER A PART OF THE LEASED PROPERTY IN
CONSIDERATION OF A PRESENT PAYMENT OF A CASH BONUS, AND FUTURE PAYMENTS
TO BE MADE "OUT OF ONE-HALF OF THE FIRST OIL PRODUCED AND SAVED" TO THE
EXTENT OF $1,000,000, AND AN ADDITIONAL "EXCESS ROYALTY" OF ONE-EIGHTH
OF ALL THE OIL PRODUCED AND SAVED.  THE WRITING DECLARED THAT THE
PARTNERSHIP "DOES SELL, ASSIGN, SET OVER, TRANSFER AND DELIVER  ...
UNTO THE" OIL COMPANY THE DESCRIBED LEASED PREMISES. 

IN HIS TAX RETURN, PALMER REPORTED HIS SHARE OF THE INCOME DERIVED BY
THE PARTNERSHIP FROM THE BONUS PAYMENT AND OIL RECEIVED UNDER ITS
CONTRACT WITH THE OIL COMPANY AND, RELYING ON SEC. 214(A)(10), MADE A
DEDUCTION FOR DEPLETION BASED ON VALUE OF OIL IN PLACE ON THE DATE OF
DISCOVERY.  THE COMMISSIONER REFUSED TO ALLOW THE DEDUCTION ON THE
THEORY THAT THE TRANSACTION WAS A SALE OF THE LEASES BY THE
PARTNERSHIP, AND THAT THE ONLY ALLOWABLE DEDUCTION WAS ONE BASED UPON
THE COST OF THE PROPERTY.  AS COST WAS LESS THAN THE DISCOVERY VALUE,
THE COMMISSIONER'S ALLOWANCE OF DEPLETION WAS LESS THAN THAT CLAIMED BY
PALMER AND THE TAX WAS CORRESPONDINGLY GREATER.  HE PAID IT, AND SUED
THE COLLECTOR TO RECOVER THE AMOUNT BY WHICH THE COMMISSIONER'S RULING
OPERATED TO INCREASE HIS BURDEN. 

THE DISTRICT COURT UPHELD THE COMMISSIONER'S RULING, THE CIRCUIT
COURT OF APPEALS AFFIRMED, THIS COURT REVERSED.  WE SAID (PP. 557-558):
"THE LANGUAGE OF THE STATUTE IS BROAD ENOUGH TO PROVIDE, AT LEAST, FOR
EVERY CASE IN WHICH THE TAXPAYER HAS ACQUIRED, BY INVESTMENT, ANY
INTEREST IN THE OIL IN PLACE, AND SECURES, BY ANY FORM OF LEGAL
RELATIONSHIP, INCOME DERIVED FROM THE EXTRACTION OF THE OIL, TO WHICH
HE MUST LOOK FOR A RETURN OF HIS CAPITAL....  SIMILARLY, THE LESSOR'S
RIGHT TO A DEPLETION ALLOWANCE DOES NOT DEPEND UPON HIS RETENTION OF
OWNERSHIP OR ANY OTHER PARTICULAR FORM OF LEGAL INTEREST IN THE MINERAL
CONTENT OF THE LAND.  IT IS ENOUGH IF, BY VIRTUE OF THE LEASING
TRANSACTION, HE HAS RETAINED A RIGHT TO SHARE IN THE OIL PRODUCED.  IF
SO HE HAS AN ECONOMIC INTEREST IN THE OIL, IN PLACE, WHICH IS DEPLETED
BY PRODUCTION.  THUS, WE HAVE RECENTLY HELD THAT THE LESSOR IS ENTITLED
TO A DEPLETION ALLOWANCE ON BONUS AND ROYALTIES, ALTHOUGH BY THE LOCAL
LAW OWNERSHIP OF THE MINERALS, IN PLACE, PASSED FROM THE LESSOR UPON
THE EXECUTION OF THE LEASE....  THUS, THROUGHOUT THEIR CHANGING
RELATIONSHIPS WITH RESPECT TO THE PROPERTIES, THE OIL IN THE GROUND WAS
A RESERVOIR OF CAPITAL INVESTMENT OF THE SEVERAL PARTIES, ALL OF WHOM
...  WERE ENTITLED TO SHARE IN THE OIL PRODUCED." 

THUS IN THAT CASE WE HELD ASSIGNORS' MERE STIPULATION FOR ROYALTY OUT
OF OIL OPERATED TO SAVE TO THEM AN ECONOMIC INTEREST IN THE OIL
SUFFICIENT TO ENTITLE THEM TO DEDUCT FROM THEIR INCOME DERIVED FROM THE
OIL AN ALLOWANCE FOR DEPLETION.  IF PALMER HAD RETAINED NO INTEREST IN
THE OIL HE WOULD HAVE BEEN ENTITLED TO NO DEDUCTION ON ACCOUNT OF
DEPLETION.  OWNERSHIP WAS ESSENTIAL.  THE ASSIGNEE WAS NOT ENTITLED TO
INCOME FROM PALMER'S SHARE OF THE OIL NOR TO DEDUCT FROM THE INCOME IT
RECEIVED FROM ITS OWN INTEREST ANY PART OF THE DEPLETION ALLOWANCE THAT
WAS ATTRIBUTABLE TO PALMER'S INTEREST. 

HELVERING V. TWIN BELL OIL SYNDICATE, 293 U.S. 312, CONSTRUED
DEPLETION PROVISIONS IN THE REVENUE ACT OF 1926 WHICH SO FAR AS
CONCERNS OWNERSHIP ARE NOT TO BE DISTINGUISHED FROM CORRESPONDING
PROVISIONS CONSIDERED IN PALMER V. BENDER, SUPRA.  SECTION 204(C)(2)
DECLARED THAT IN THE CASE OF OIL AND GAS WELLS "THE ALLOWANCE FOR
DEPLETION SHALL BE 27 1/2 PER CENT. OF THE GROSS INCOME FROM THE
PROPERTY DURING THE TAXABLE YEAR."  SECTION 234(A)(8) REQUIRED THE
DEDUCTIONS ALLOWED TO BE EQUITABLY APPORTIONED BETWEEN THE LESSOR AND
LESSEE.  THE TAXPAYER, ASSIGNEE OF THE LEASE, EXTRACTED SUBSTANTIAL
QUANTITIES OF OIL.  BY THE TERMS OF THE LEASE AND ASSIGNMENT HE WAS
OBLIGATED TO PAY ROYALTIES IN CASH OR KIND TOTALLING ONE-FOURTH OF THE
OIL.  HE CLAIMED THAT GROSS PROCEEDS OF ALL THE OIL SHOULD FORM THE
BASIS FOR COMPUTATION OF THE ALLOWANCE FOR DEPLETION.  THE COMMISSIONER
RULED THAT THE DEDUCTION SHOULD BE LIMITED TO 27 1/2 PER CENT. OF THE
GROSS PRODUCTION LESS ROYALTIES.  THE BOARD OF TAX APPEALS UPHELD THAT
RULING; THE CIRCUIT COURT OF APPEALS REVERSED THE BOARD; WE SUSTAINED
THE COMMISSIONER.  OUR OPINION SHOWS THAT THE PHRASE, "INCOME FROM THE
PROPERTY," MEANS INCOME FROM OIL AND GAS ONLY; THAT, WHERE THE LESSEE
TURNS OVER ROYALTY OIL IN KIND TO THE LESSOR, THE AMOUNT RETAINED BY
LESSEE IS THE BASIS FOR HIS COMPUTATION OF DEPLETION AND THE ROYALTY
OIL IS THE BASIS FOR THAT ALLOWABLE TO LESSOR.  IN THAT CONNECTION WE
SUGGESTED THAT CONGRESS DID NOT INTEND A DIFFERENT RESULT WHERE THE
LESSEE SELLS ALL THE OIL AND PAYS OVER THE ROYALTY IN THE FORM OF
CASH.  AND IN APPROVAL OF THE COMMISSIONER'S RULING WE SAID (P. 321):
"THE APPORTIONMENT GIVES RESPONDENT 27 1/2 PER CENT. OF THE GROSS
INCOME FROM PRODUCTION WHICH IT HAD THE RIGHT TO RETAIN AND THE
ASSIGNOR AND LESSOR RESPECTIVELY 27 1/2 PER CENT. OF THE ROYALTIES THEY
RECEIVE.  SUCH AN APPORTIONMENT HAS REGARD TO THE ECONOMIC INTEREST OF
EACH OF THE PARTIES ENTITLED TO PARTICIPATE IN THE DEPLETION
ALLOWANCE.  COMPARE PALMER V. BENDER, 287 U.S. 551, 558." 

AS IN THE EARLIER OF THESE CASES THE ASSIGNOR WAS ENTITLED TO DEDUCT
DEPLETION FROM INCOME HE RECEIVED FROM HIS INTEREST IN THE OIL, SO IN
THE LATER ONE THE ASSIGNEE WAS NOT ENTITLED TO DEDUCT FROM INCOME
RECEIVED FROM ITS SHARE AN ALLOWANCE FOR DEPLETION ATTRIBUTABLE TO THE
ASSIGNOR'S INTEREST.  THE OWNER OF AN INTEREST IN THE DEPOSIT IS
ENTITLED TO DEDUCT FOR DEPLETION OF THE PART PRODUCING HIS INCOME BUT
MAY NOT DEDUCT FOR DEPLETION OF A SHARE BELONGING TO ANOTHER. 

AS HAMMONDS AND BRANSON, THE ASSIGNORS IN THIS CASE, WOULD BE
ENTITLED TO AN ALLOWANCE FOR DEPLETION IN RESPECT OF THE OIL SOLD OUT
OF THEIR SHARE,  FN4  THE INCOME FROM THAT INTEREST IS NOT CHARGEABLE
TO RESPONDENTS, PERKINS AND WIFE.  IT FOLLOWS THAT THE COMMISSIONER
ERRED IN INCLUDING IN THEIR INCOME THE PAYMENTS MADE BY PURCHASERS TO
ASSIGNORS FOR THEIR SHARE OF THE OIL.  AFFIRMED. 

FN1  CONTEMPORANEOUSLY WITH THE ASSIGNMENT THERE WAS PAID $105,000 IN
CASH AND $50,000 IN NOTES. 

FN2  LYNCH V. ALWORTH-STEPHENS CO., 267 U.S. 364, 370.  CORLISS V.
BOWERS, 281 U.S. 376, 378.  TYLER V. UNITED STATES, 281 U.S. 497, 503. 
BURNET V. HARMEL, 287 U.S. 103, 110.  PALMER V. BENDER, 287 U.S. 551,
556.  BURNET V. GUGGENHEIM, 288 U.S. 280, 284.  HELVERING V. FALK, 291
U.S. 183, 188.    FN3  SHEFFIELD V. HOGG, 124 TEX. 290; 77 S.W.(2D)
1021.  SEE WAGGONER ESTATE V. SIGLER OIL CO., 118 TEX. 509; 19 S.W.(2D)
27.  HAGER V. STAKES, 116 TEX. 453; 294 S.W. 835.  STEPHENS COUNTY V.
MID-KANSAS OIL & GAS CO., 113 TEX. 160; 254 S.W. 290.  TEXAS CO. V.
DAUGHERTY, 107 TEX. 226; 176 S.W. 717. 

FN4  REVENUE ACT OF 1932, SECS. 23(1), 114(B)(3), 47 STAT. 181, 202. 
PALMER V. BENDER, 287 U.S. 551.  HELVERING V. TWIN BELL OIL SYNDICATE,
293 U.S. 312.    MR. JUSTICE STONE AND MR. JUSTICE CARDOZO THINK THE
OIL AND GAS PRODUCED BY THE ASSIGNEE OF THE LEASE, AND THEIR PROCEEDS,
WERE HIS INCOME AND NOT ANY THE LESS SO BECAUSE HE AGREED TO APPLY A
PART TO PAYMENT OF THE PURCHASE PRICE OF THE LEASE, AND GAVE AN
EQUITABLE LIEN TO SECURE THE PAYMENT.  WHETHER THE PURCHASE PRICE, WHEN
PAID, REPRESENTED A CAPITAL GAIN TAXABLE TO THE ASSIGNORS, AND WHETHER
IN THAT CASE THEIR INTEREST WOULD BE SUBJECT TO A DEPLETION ALLOWANCE
UNDER OUR DECISION IN PALMER V. BENDER, 287 U.S. 551, ARE QUESTIONS
IRRELEVANT TO THE PRESENT ISSUE.  THE JUDGMENT SHOULD BE REVERSED. 
..END :



















TOWNSEND V. YEOMANS, 301 U.S. 441 


NO. 781.  ARGUED MAY 3, 4, 1937.  - DECIDED MAY 24, 1937.  - AFFIRMED. 


1.  THE BUSINESS OF TOBACCO WAREHOUSES IN GEORGIA IS AFFECTED WITH A
PUBLIC INTEREST AND THEIR CHARGES TO GROWERS FOR HANDLING AND SELLING
LEAF TOBACCO ARE SUBJECT TO REASONABLE REGULATION BY THE STATE.  P.
449. 

2.  STATUTORY RATES OR CHARGES ARE PRESUMED TO BE REASONABLE; HE WHO
ATTACKS THEM AS CONFISCATORY HAS THE BURDEN OF PROVING THEM SO.  P.
450. 

3.  A LEGISLATURE, ACTING WITHIN ITS SPHERE, IS PRESUMED TO KNOW THE
NEEDS OF THE PEOPLE OF ITS STATE.  P. 451. 

THE EXISTENCE OF THE TOBACCO INDUSTRY IN GEORGIA, THE TRANSACTIONS OF
THE TOBACCO MARKETS, AND THE NECESSITY OF PROTECTING THE GROWERS FROM
EXORBITANT WAREHOUSE CHARGES, MUST BE PRESUMED TO HAVE BEEN FULLY KNOWN
TO THE MEMBERS OF THE LEGISLATURE, AND THIS PRESUMPTION CANNOT BE
OVERTHROWN BY TESTIMONY OF INDIVIDUAL LEGISLATORS. 

4.  PRACTICALLY ALL THE TOBACCO GROWN IN GEORGIA IS SHIPPED OUT OF
THE STATE IN FOREIGN OR INTERSTATE COMMERCE; THE PURCHASERS AT THE
"MARKETS" IN GEORGIA FOR THE MOST PART ARE MANUFACTURERS OF CIGARETTES
WHO IMMEDIATELY HAVE THE TOBACCO TRANSPORTED TO THEIR PLANTS OUTSIDE
THE STATE; OTHER PURCHASES MADE BY SPECULATORS AND WAREHOUSEMEN ARE FOR
THE PURPOSE OF RESALE AS SOON AS POSSIBLE TO THE CIGARETTE
MANUFACTURERS; AND THUS THE TOBACCO SO BOUGHT, AS WELL AS THE REST, IS
DESTINED FOR INTERSTATE OR FOREIGN SHIPMENT.  HELD THAT, IF IT BE
ASSUMED THAT CONGRESS HAS AUTHORITY TO REGULATE CHARGES OF THE
WAREHOUSEMEN, SUCH AUTHORITY HAS NOT BEEN EXERCISED BY THE TOBACCO
INSPECTION ACT OF AUGUST 23, 1935.  P. 452. 

5.  CONGRESS MAY CIRCUMSCRIBE ITS REGULATION OF INTERSTATE COMMERCE
AND OCCUPY A LIMITED FIELD; AND THE INTENT TO SUPERSEDE THE EXERCISE BY
THE STATE OF ITS POLICE POWER AS TO MATTERS NOT COVERED BY THE FEDERAL
LEGISLATION IS NOT TO BE IMPLIED UNLESS THE LATTER, FAIRLY INTERPRETED,
IS IN ACTUAL CONFLICT WITH THE STATE LAW.  P. 454. 

6.  THE GEORGIA STATUTE HERE IN QUESTION, FIXING REASONABLE MAXIMUM
CHARGES FOR THE SERVICES OF WAREHOUSEMEN, IN AID OF THE TOBACCO GROWERS
BUT NOT ATTEMPTING TO FIX THE PRICES FOR WHICH THE TOBACCO IS SOLD AT
AUCTION IN GEORGIA OR TO REGULATE THE ACTIVITIES OF PURCHASERS, LAYS NO
ACTUAL BURDEN UPON INTERSTATE OR FOREIGN COMMERCE IN THE TOBACCO.  P.
455. 

7.  FEDERAL POWER OVER A FIELD OF INTERSTATE COMMERCE MAY BE
EXCLUSIVE, THOUGH UNEXERCISED, WHEN THE SUBJECT IS SUCH AS TO DEMAND
UNIFORMITY OF REGULATION; BUT IN MATTERS ADMITTING OF DIVERSITY OF
LOCAL TREATMENT ACCORDING TO LOCAL REQUIREMENTS, THE STATES, IN THE
ABSENCE OF CONGRESSIONAL REGULATION, ARE AT LIBERTY TO ACT.  P. 455. 

TOWNSEND ET AL. V. YEOMANS, ATTORNEY GENERAL OF GEORGIA, ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE
DISTRICT OF GEORGIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES,
DISMISSING A BILL IN A SUIT TO RESTRAIN THE ENFORCEMENT OF A STATUTE
FIXING MAXIMUM CHARGES FOR HANDLING AND SELLING LEAF TOBACCO. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT BY TOBACCO WAREHOUSEMEN TO RESTRAIN THE
ENFORCEMENT OF A STATUTE OF GEORGIA, APPROVED MARCH 28, 1935, FIXING
MAXIMUM CHARGES FOR HANDLING AND SELLING LEAF TOBACCO.  GA. L. 1935,
PP. 476-8. 

THE STATUTE WAS ASSAILED AS AN ARBITRARY AND CAPRICIOUS EXERCISE OF
STATE POWER, REPUGNANT TO THE FOURTEENTH AMENDMENT OF THE FEDERAL
CONSTITUTION, AND AS PLACING A DIRECT BURDEN UPON INTERSTATE COMMERCE
IN VIOLATION OF THE COMMERCE CLAUSE.  THE HEARING IN THE DISTRICT COURT
WAS BY THREE JUDGES (28 U.S.C. 380) AND, UPON FINDINGS OF FACT AND
CONCLUSIONS OF LAW, A FINAL DECREE WAS ENTERED DISMISSING THE BILL OF
COMPLAINT, ONE JUDGE DISSENTING.  THE CASE COMES HERE ON APPEAL. 

THE FACTS FOUND BY THE DISTRICT COURT WITH RESPECT TO THE TOBACCO
INDUSTRY IN GEORGIA AND THE NATURE OF THE TRANSACTIONS AT THE
WAREHOUSES ARE NOT IN DISPUTE.  IT APPEARS THAT THIS INDUSTRY IS
RELATIVELY NEW, BEGINNING IN 1917, BUT BY THE YEAR 1925 IT WAS BECOMING
WELL ESTABLISHED.  THE TYPE OF TOBACCO GROWN IN GEORGIA IS THE "BRIGHT
LEAF" WHICH IS ALMOST EXCLUSIVELY USED IN THE MANUFACTURE OF
CIGARETTES.  THIS VARIETY IS GROWN EXTENSIVELY IN NORTH CAROLINA, TO A
MUCH LESS EXTENT IN SOUTH CAROLINA AND GEORGIA, AND TO SOME EXTENT IN
VIRGINIA, KENTUCKY AND TENNESSEE.  THE ACREAGE PLANTED BY THE
INDIVIDUAL FARMER IN GEORGIA IS COMPARATIVELY SMALL BUT THE AGGREGATE
ACREAGE IS NOW NOT ONLY VERY CONSIDERABLE BUT IS WIDELY DISTRIBUTED
OVER A LARGE AREA IN THE SOUTHERN PORTION OF THE STATE. 

THE NECESSITY FOR MARKETS AND THE EARLY MATURITY OF THE TOBACCO IN
GEORGIA PRESENTED AN OPPORTUNITY WHICH WAS EARLY RECOGNIZED BY
EXPERIENCED AND SKILLED WAREHOUSEMEN WHO WERE OPERATING IN THE TOBACCO
BELTS OF NORTH CAROLINA AND OTHER STATES, WHERE SELLING SEASONS BEGIN
SOMETIME AFTER THE TERMINATION OF THE SELLING SEASON IN GEORGIA.  WITH
FEW EXCEPTIONS, COMPETENT WAREHOUSEMEN, AND EXPERIENCED AND SKILLED
AUCTIONEERS AND HELPERS IN HANDLING AND SELLING TOBACCO ARE NOT FOUND
IN GEORGIA AND MUST BE OBTAINED FROM OTHER STATES.  THERE WERE FORTY
FIVE WAREHOUSES OPERATED IN 1935, THIRTY-NINE OF WHICH WERE CONNECTED
IN SOME CAPACITY WITH WAREHOUSES IN NORTH CAROLINA, KENTUCKY, VIRGINIA
OR TENNESSEE. 

THE PRINCIPAL PURCHASERS OF THE BRIGHT LEAF TOBACCO GROWN IN GEORGIA
AND ELSEWHERE ARE LIMITED TO A FEW LARGE MANUFACTURERS OF CIGARETTES. 
THESE ARE CALLED "THE COMPANIES."  THEY PURCHASE TOBACCO ONLY AT
WAREHOUSE AUCTION SALES TO WHICH THEY SEND OR FURNISH "BUYERS."  EACH
BUYER IS THE REPRESENTATIVE OF ONE OF THE COMPETING PURCHASERS AND A
"SET OF BUYERS," USUALLY FROM EIGHT TO TWELVE IN NUMBER, IS MADE UP OF
REPRESENTATIVES FROM EACH OF THE PURCHASING CIGARETTE MANUFACTURERS. 
THE PRESENCE OF A "SET OF BUYERS" IS ESSENTIAL AT AN AUCTION SALE.  A
TOWN HAVING ONE OR MORE WAREHOUSES IS KNOWN AS A "MARKET."  BY SENDING
A SET OF BUYERS TO A NEW WAREHOUSE, THE MANUFACTURERS MAY RECOGNIZE A
NEW MARKET, AND BY REFUSING TO SEND ONE TO AN OLD MARKET MAY CAUSE ITS
ABANDONMENT; AND BY SENDING EITHER ONE OR TWO SETS OF BUYERS TO A GIVEN
MARKET THE MANUFACTURERS MAY DETERMINE THE RAPIDITY WITH WHICH THE
ACCUMULATED TOBACCO MAY BE DISPOSED OF. THERE IS ANOTHER CLASS OF
PURCHASERS KNOWN AS "SPECULATORS."  THESE ON RARE OCCASIONS BUY TOBACCO
FROM A GROWER AND HAVE IT TRANSPORTED TO A WAREHOUSE FOR SALE.  AT
AUCTION SALES SPECULATORS TO A LIMITED EXTENT, AS COMPARED WITH BUYERS,
PURCHASE TOBACCO FOR A LATER SALE.  THERE IS STRENUOUS AND EXPENSIVE
COMPETITION BETWEEN WAREHOUSEMEN IN SECURING TOBACCO FROM GROWERS TO BE
HANDLED AND SOLD, BUT IN THE SALE OF TOBACCO THERE IS NO COMPETITION
EXCEPT SUCH AS EXISTS BETWEEN THE RESPECTIVE BUYERS AND SPECULATORS AT
THE AUCTION SALES, AND THE BIDS OF THE WAREHOUSEMEN THEMSELVES. 

THE TOBACCO BELT IN GEORGIA COMPRISES ABOUT TWENTY COUNTIES IN THE
SOUTHERN PART OF THE STATE, AND IN 1935 THERE WERE FIFTEEN TOWNS KNOWN
AS "MARKETS."  SEVEN OF THE MARKETS WERE SUPPLIED WITH ONE SET OF
BUYERS AND EIGHT WERE FURNISHED TWO SETS.  THE "TWO SET MARKETS" HAD A
TOTAL OF THIRTY AND THE "ONE SET MARKETS" A TOTAL OF FIFTEEN WAREHOUSES
IN OPERATION.  THE QUANTITY OF TOBACCO SOLD IN THE WAREHOUSES AND THE
AVERAGE PRICES RANGED FROM 106,483,019 POUNDS AT 9.86 CENTS PER POUND
IN 1930, TO 71,826,352 POUNDS AT 18.91 CENTS PER POUND IN 1935. 

AFTER THE TOBACCO HAS BEEN CURED AND IS READY FOR THE MARKET, THE
GROWER GRADES IT AS BEST HE CAN AND THE RESULTING "PILES" OF LOOSE
LEAVES ARE PLACED IN SHEETS WHICH ARE THEN TIED AND THE TOBACCO IS SO
TRANSPORTED TO THE SELECTED WAREHOUSE FOR SALE.  AUCTION SALES ARE HELD
DAILY DURING FIVE DAYS OF THE WEEK, AND IN ANY PARTICULAR WAREHOUSE AS
OFTEN AS SUFFICIENT TOBACCO ACCUMULATES.  IT IS ESSENTIAL THAT THERE BE
PRESENT THE WAREHOUSEMAN, AN AUCTIONEER AND OTHER SKILLED HELP, AND ONE
SET OF BUYERS.  THE WAREHOUSEMAN MAKES THE OPENING BID.  IF THIS IS NOT
TAKEN OR RAISED BY ANOTHER, THE WAREHOUSEMAN GENERALLY BECOMES THE
PURCHASER OF THE TOBACCO FOR HIS OWN ACCOUNT.  IF NOT SOLD IN THAT
FASHION THE BIDDING CONTINUES UNTIL THE SALE IS ANNOUNCED.  THE GROWER
OR OTHER OWNER MAY TURN DOWN THE SALE AND IN SUCH CASE HE MAY HOLD THE
TOBACCO FOR A LATER SALE OR REMOVE IT.  AFTER THE SALE HAS BEEN
COMPLETED THE TOBACCO IS DELIVERED TO THE PURCHASER WHO REMOVES IT FROM
THE FLOOR.  THE PURCHASER HAS IT REWEIGHED AND PAYS THE WAREHOUSEMAN. 
THE WAREHOUSEMAN THEN PAYS THE SELLER THE PURCHASE PRICE, LESS
WAREHOUSE CHARGES.  TOBACCO PURCHASED BY THE WAREHOUSEMAN IS AFTERWARDS
SOLD BY HIM AT AUCTION. 

THE TOBACCO IS READY FOR THE MARKET IN THE LATTER PART OF JULY OR
EARLY IN AUGUST.  THE EXACT DATE FOR OPENING THE SELLING SEASON IS
FIXED BY THE MANUFACTURERS, WHO ARE THE PRINCIPAL BUYERS, AND THE
WAREHOUSEMEN.  THE SELLING SEASON IS FROM THREE TO FIVE WEEKS IN
LENGTH.  THE SHORT TOBACCO SEASON CAUSES GROWERS TO RUSH TOBACCO TO THE
MARKET AND DOES NOT GIVE THEM A FAIR OPPORTUNITY "TO PROPERLY GRADE,
STORE, BUNDLE, AND ORDERLY MARKET THEIR TOBACCO."  THE SHORT SEASON IS
IN LARGE PART OCCASIONED BY THE EFFORTS OF THE MANUFACTURERS TO
TRANSFER THEIR BUYERS TO THE NORTH CAROLINA BELTS, IN SOME OF WHICH THE
SELLING SEASONS BEGIN EARLY IN SEPTEMBER, AND THE EFFORTS OF THE
WAREHOUSEMEN TO DISPOSE OF THE TOBACCO IN GEORGIA SO THAT THEY AND
THEIR AUCTIONEERS AND OTHER SKILLED EMPLOYEES MAY PROCEED TO THE LATER
AND LARGER SEASONS OF NORTH CAROLINA AND OTHER STATES. 

WHEN THE ACT IN QUESTION WAS PASSED, THE WAREHOUSE CHARGES, BASED
UPON THREE ELEMENTS, THE SALE VALUE, THE NUMBER OF PILES HANDLED AND
THE WEIGHT OF THE QUANTITY SOLD, WERE AS FOLLOWS: 

COMMISSIONS:  2 1/2 PER CENT. ON GROSS SALES. 

AUCTION FEES:  25 CENTS PER PILE UP TO 200 POUNDS; 50 CENTS PER PILE
ABOVE 200 POUNDS. 

WEIGHING AND HANDLING FEES:  25 CENTS PER PILE UP TO 100 POUNDS, AND
25 CENTS FOR EACH ADDITIONAL 100 POUNDS. 

THE ACT OF 1935 PRESCRIBED THE FOLLOWING MAXIMUM CHARGES: 

COMMISSIONS:  2 1/2 PER CENT. ON GROSS SALES. 

AUCTION FEES:  15 CENTS ON ALL PILES OF 100 POUNDS OR LESS; 25 CENTS
ON ALL PILES OVER 100 POUNDS. 

WEIGHING AND HANDLING FEES:  10 CENTS PER PILE OF 100 POUNDS OR LESS,
AND 10 CENTS FOR EACH ADDITIONAL 100 POUNDS. 

IT WILL BE OBSERVED THAT THE STATUTORY REDUCTION IS CONFINED TO THE
AUCTION FEES AND THE CHARGES FOR WEIGHING AND HANDLING.  THE PERCENTAGE
REDUCTION IS DIFFICULT OF EXACT DETERMINATION.  COMPLAINANTS SAY THAT
THE GROSS INCOME OF THE WAREHOUSEMEN WILL BE REDUCED ABOUT 20 PER CENT.
THE DIFFERENCE IN DOLLARS BETWEEN THE AMOUNT WHICH COMPLAINANTS WOULD
HAVE RECEIVED IN 1935 UNDER THE FORMER SCHEDULE AND THE AMOUNT TO WHICH
THEY WOULD BE ENTITLED UNDER THE ACT IS FOUND TO BE $115,920.90, AND
THIS AMOUNT WAS PAID INTO THE REGISTRY OF THE COURT.  STATUTES IN NORTH
CAROLINA AND SOUTH CAROLINA FIX THE SAME SCALE OF CHARGES AS THOSE
PRESCRIBED BY THE GEORGIA ACT.  NO ATTACK HAS BEEN MADE UPON THE
CONSTITUTIONALITY OF THESE STATUTES.  THE SCALE HERETOFORE IN EFFECT IN
GEORGIA "IS NOT SO HIGH AS THE NON-STATUTORY TENNESSEE OR KENTUCKY
CHARGES." 

THE DISTRICT COURT MADE ADDITIONAL FINDINGS, WHICH APPELLANTS
CHALLENGE, WITH RESPECT TO THE CONTROL EXERCISED BY THE WAREHOUSEMEN
OVER THE CHARGES MADE FOR THEIR SERVICES AND THEIR COMMON AGREEMENT AS
TO THE AMOUNT OF THESE CHARGES.  THE COURT FOUND THAT BY REASON OF
THEIR CONTROL OF THE WAREHOUSES "WAREHOUSEMEN HAVE, UNLESS REGULATED BY
LAW, AN UNDULY COERCIVE CONTROL OVER THE PRICES CHARGED THE GROWERS FOR
SERVICES"; THAT BEGINNING WITH THE TOBACCO SELLING SEASON OF 1927 ALL
WAREHOUSEMEN IN GEORGIA HAVE UNIFORMLY MAINTAINED "A HARD AND FAST
SCHEDULE OF CHARGES"; THAT, WHILE THERE HAVE BEEN SOME EXCEPTIONS, THEY
ARE "SO INSIGNIFICANT AS TO BE IMMATERIAL"; THAT PRIOR TO 1927 THE
WAREHOUSEMEN IN GEORGIA FOR MANY YEARS, IF NOT FROM THE BEGINNING OF
THE INDUSTRY, "HAD MAINTAINED AND EXACTED FROM SELLERS OF TOBACCO A
UNIFORM SCHEDULE OF CHARGES SUBSTANTIALLY, IF NOT IDENTICALLY, THE SAME
AS THE SCHEDULE FIXED BY THE ACT OF 1935." 

THE COURT ALSO FOUND THAT THE PROPRIETY OF CHARGING MORE FOR HANDLING
TOBACCO IN GEORGIA THAN IN THE CAROLINAS HAD NOT BEEN ESTABLISHED; THAT
IT HAD NOT BEEN SHOWN THAT THE GEORGIA ACT "WAS PASSED WITHOUT ANY
KNOWLEDGE ON THE PART OF THE LEGISLATURE AS TO ACTUAL CONDITIONS UNDER
WHICH THE BUSINESS WAS, AND IS, BEING CARRIED ON IN GEORGIA"; THAT IT
HAD NOT BEEN PROVED "WHAT EACH OR ANY WAREHOUSEMAN, INDIVIDUAL OR
CORPORATE, LOST IN REVENUE BY REASON OF THE SCALE OF CHARGES PRESCRIBED
BY THE ACT"; THAT IT WAS NOT DENIED "THAT SOME WAREHOUSEMEN EARNED A
SATISFACTORY PROFIT" AND IT HAD NOT BEEN PROVED THAT WHERE A LOSS
OCCURRED IT WAS NOT DUE "TO EXCESSIVE COMPETITION, ILL-ADVISED LOANS,
UNNECESSARY EXPENSES IN BUYING INFLUENCE OR HAULING CUSTOMERS' TOBACCO,
OR OTHER CAUSES THAN THE REDUCTION IN CHARGES."  THE COURT OBSERVED
THAT THE TESTIMONY AS TO THE EFFECTS OF THE ACT WAS WITH RESPECT TO THE
"GROUP OF WAREHOUSEMEN WHO ARE COMPLAINANTS, RATHER THAN TO THE EFFECT
ON EACH ONE, AND EVEN THEN IT WAS NOT PROVEN THAT ALL THE LOSSES ARE
TRACEABLE TO THE REDUCTION IN CHARGES RATHER THAN TO OTHER CAUSES." 

THE COURT MADE FINDINGS WITH REGARD TO THE ORGANIZATION KNOWN AS THE
"TOBACCO WAREHOUSEMEN'S ASSOCIATION" OF WHICH ALL THE COMPLAINANTS WERE
MEMBERS.  THE COURT SAID THAT THE PROSECUTION OF THE SUIT WAS "AN
ORGANIZED FIGHT THROUGH THE WAREHOUSEMEN'S ASSOCIATION"; THAT THE
GROWERS ARE NOT ELIGIBLE FOR MEMBERSHIP IN THAT ORGANIZATION; THAT "THE
ASSOCIATION AND THE BUYERS DETERMINE THE DATE THE MARKET IN GEORGIA
OPENS AND SUBSTANTIALLY DETERMINE THE DATE ON WHICH IT CLOSES"; THAT
THE ASSOCIATION UNDERTAKES TO DEAL WITH SUCH PRACTICES AS AFFECT THE
INTEREST OF THE MEMBERS AND ADOPTS RULES WHICH THEY ARE TO OBSERVE. 
THE COURT QUOTED FROM THE MINUTES OF MEETINGS CERTAIN ACTION TENDING TO
SUPPORT THE VIEW THAT THERE WAS A COMMON AGREEMENT AS TO WAREHOUSE
CHARGES AND A CONCERT OF ACTION IN RELATION TO THE PRESENT SUIT.  THE
COURT CONCLUDED THAT "THROUGH THE WAREHOUSEMEN'S ASSOCIATION AND THEIR
COMMON AGREEMENT" AS TO CHARGES THE COMPLAINANTS "MAINTAIN AND ENJOY A
VIRTUAL MONOPOLY IN THE FIELD COVERED BY THEIR OPERATIONS"; THAT THE
BUSINESS OF TOBACCO WAREHOUSEMEN IN GEORGIA IN 1935, AND FOR SOME YEARS
PRIOR THERETO, WAS SUCH AS TO CAUSE IT TO BE "AFFECTED WITH A PUBLIC
INTEREST"; THAT THE SCALE OF CHARGES PRESCRIBED BY THE ACT WAS "NOT
UNREASONABLE, ARBITRARY, AND CAPRICIOUS" BUT WAS "REASONABLY ADAPTED TO
ACCOMPLISH THE DESIRED RESULT"; AND THAT THE FIXING OF CHARGES FOR THE
SERVICES RENDERED BY THE WAREHOUSEMEN DID "NOT BURDEN OR INTERFERE WITH
INTERSTATE COMMERCE." 

FIRST.  UNLESS THERE IS CONFLICT WITH THE AUTHORITY OF THE CONGRESS
OVER INTERSTATE COMMERCE, THE ENACTMENT OF THE STATUTE WAS CLEARLY
WITHIN THE COMPETENCY OF THE GEORGIA LEGISLATURE.  WHILE APPELLANTS'
ASSIGNMENT OF ERRORS CHALLENGE THE CONCLUSION OF THE DISTRICT COURT
THAT THE BUSINESS OF THE TOBACCO WAREHOUSES WAS ONE "AFFECTED WITH A
PUBLIC INTEREST," THEIR COUNSEL CONCEDED IN THE ARGUMENT AT BAR THAT
THE CHALLENGE COULD NOT BE SUSTAINED.  THAT CONCESSION WAS APPROPRIATE
IN VIEW OF THE EVIDENCE AND THE FINDINGS.  THE UNCONTROVERTED FACTS
WITH RESPECT TO THE NATURE AND EXTENT OF THE TOBACCO INDUSTRY, THE
ESTABLISHMENT OF MARKETS FOR PUBLIC SALES, AND THE DEPENDENCE OF THE
INDUSTRY UPON THE SERVICES OF THE WAREHOUSEMEN IN CONNECTION WITH THESE
SALES, SHOW BEYOND CAVIL THE PUBLIC INTEREST IN THESE MARKETS AND IN
THE MAINTENANCE OF REASONABLE CHARGES FOR THE SERVICES THERE RENDERED. 

A SIMILAR CONCEPTION OF PUBLIC INTEREST, REENFORCED BY ABUNDANT
EXPERIENCE, IS REFLECTED IN THE LEGISLATION OF OTHER TOBACCO GROWING
STATES.  IN VIRGINIA THE SALE OF TOBACCO IN PUBLIC WAREHOUSES HAS LONG
BEEN REGULATED BY STATUTE AND MAXIMUM CHARGES HAVE BEEN FIXED.  CODE OF
VIRGINIA, 1887, SECS. 1819-1825; 1924, SECS. 1376-1381.  IN NORTH
CAROLINA SUCH REGULATION GOES BACK TO AN EARLY DAY.  SEE CONSOLIDATED
STATUTES OF NORTH CAROLINA, SECS. 5124 ET SEQ. IN GRAY V. CENTRAL
WAREHOUSE CO., 181 N.C. 166; 106 S.E. 657, THE SUPREME COURT OF THAT
STATE, AFTER SUMMARIZING THE LOCAL LEGISLATION UPON THAT SUBJECT SINCE
1895, GOES ON TO SAY:    "INDEED, AS FAR BACK AS THE HISTORY OF THE
STATE EXTENDS, THE BUSINESS OF TOBACCO WAREHOUSES HAS BEEN, IF NOT A
PUBLIC DUTY, ALWAYS 'AFFECTED WITH A PUBLIC USE.'  THE LAWS OF NORTH
CAROLINA FROM 1669 TO 1790 HAVE BEEN COMPILED AS STATE RECORDS, VOLS. 
23, 24 AND 25, BY THE WRITER OF THIS OPINION (CHIEF JUSTICE CLARK), AND
IN THE INDEX THERETO, IN THE LAST NAMED VOLUME, IT APPEARS THAT NO LESS
THAN 75 STATUTES WERE ENACTED PRIOR TO 1790 IN REGARD TO TOBACCO
WAREHOUSES REQUIRING INSPECTION, REGULATION, AND FIXING CHARGES IN SUCH
BUSINESS.  TO THE FULLEST EXTENT, THEREFORE, THEIR REGULATION AND
CONTROL BY THE PUBLIC HAS BEEN RECOGNIZED AND ENFORCED IN THIS STATE. 
- IN FACT, THERE IS NO SUBJECT IN WHICH THE PROTECTION OF THE PRODUCERS
AGAINST EXTORTION AND COMBINATIONS TO REDUCE PRICES IS MORE
IMPORTANT." 

IN SOUTH CAROLINA MAXIMUM CHARGES FOR SELLING LEAF TOBACCO UPON THE
FLOOR OF TOBACCO WAREHOUSES ARE FIXED.  CODE, SOUTH CAROLINA, 1932,
SEC. 7197, AND EARLIER STATUTES THERE CITED.  THE STATUTE OF GEORGIA,
HERE UNDER ATTACK, COPIES ALMOST EXACTLY THE SOUTH CAROLINA STATUTE. 
SEE, ALSO, AS TO THE AUTHORITY OF THE STATE, NASH V. PAGE, 80 KY. 539;
PANNELL V. LOUISVILLE TOBACCO WAREHOUSE CO., 113 KY. 630. 

SO FAR AS THE PRESENT CONTROVERSY TURNS UPON THE POWER OF THE STATE
TO GIVE THIS SORT OF PROTECTION TO THIS INDUSTRY, PROVIDED ITS
REGULATION IS NOT ARBITRARY OR CONFISCATORY AND IN THE ABSENCE OF
CONFLICT WITH THE FEDERAL POWER OVER COMMERCE, OUR RULINGS ARE DECISIVE
IN SUPPORT OF THE STATE ACTION.  MUNN V. ILLINOIS, 94 U.S. 113; BUDD V.
NEW YORK, 143 U.S. 517; BRASS V. STOESER, 153 U.S. 391; GERMAN ALLIANCE
INSURANCE CO. V. LEWIS, 233 U.S. 389; O'GORMAN & YOUNG V. HARTFORD
INSURANCE CO., 282 U.S. 251; NEBBIA V. NEW YORK, 291 U.S. 502. 

CONFISCATION IS NOT SHOWN.  THE PRESUMPTION OF REASONABLENESS HAS NOT
BEEN OVERTHROWN.  O'GORMAN & YOUNG V. HARTFORD INSURANCE CO., SUPRA.
IT IS APPARENT THAT THE RETURN TO THE WAREHOUSEMEN WILL LARGELY BE
GOVERNED BY THE VOLUME AND VALUE OF THE TOBACCO CROP.  THE EVIDENCE
RELATES CHIEFLY TO THE YEARS OF THE GREAT DEPRESSION AND AFFORDS NO
APPROPRIATE CRITERION FOR A MORE NORMAL PERIOD.  MOREOVER, WE FIND NO
SUFFICIENT GROUND FOR DISTURBING THE FINDING OF THE DISTRICT COURT THAT
THE EVIDENCE DID NOT SATISFACTORILY ESTABLISH WHAT ANY WAREHOUSEMAN,
INDIVIDUAL OR CORPORATE, LOST BY REASON OF THE PRESCRIBED SCALE OF
CHARGE IN CONTRADISTINCTION TO ITS EFFECT UPON THE WAREHOUSEMEN AS A
GROUP.  SEE AETNA INSURANCE CO. V. HYDE, 275 U.S. 440, 447, 448.  THE
BURDEN RESTING UPON APPELLANTS TO MAKE A CONVINCING SHOWING THAT THE
STATUTORY RATES WOULD OPERATE SO SEVERELY AS TO DEPRIVE THEM,
RESPECTIVELY, OF THEIR PROPERTY WITHOUT DUE PROCESS OF LAW, WAS NOT
SUSTAINED.  AETNA INSURANCE CO. V. HYDE, SUPRA; LOS ANGELES GAS &
ELECTRIC CORP. V. RAILROAD COMMISSION, 289 U.S. 287, 304, 305;
LINDHEIMER V. ILLINOIS BELL TELEPHONE CO., 292 U.S. 151, 164; DAYTON
POWER & LIGHT CO. V. PUBLIC UTILITIES COMM'N, 292 U.S. 290, 298. 

APPELLANTS CONTEND THAT THE LEGISLATIVE ACTION WAS TAKEN WITHOUT
INVESTIGATION AND HENCE MUST BE CONSIDERED TO BE ARBITRARY AND BEYOND
THE LEGISLATIVE POWER.  THERE IS NO PRINCIPLE OF CONSTITUTIONAL LAW
WHICH NULLIFIES ACTION TAKEN BY A LEGISLATURE, OTHERWISE COMPETENT, IN
THE ABSENCE OF A SPECIAL INVESTIGATION.  THE RESULT OF PARTICULAR
LEGISLATIVE INQUIRIES THROUGH COMMISSIONS OR OTHERWISE MAY BE MOST
HELPFUL IN PORTRAYING THE EXIGENCIES TO WHICH THE LEGISLATIVE ACTION
HAS BEEN ADDRESSED AND IN FORTIFYING CONCLUSIONS AS TO REASONABLENESS. 
NEBBIA V. NEW YORK, SUPRA, PP. 516 ET SEQ. BUT THE LEGISLATURE, ACTING
WITHIN ITS SPHERE, IS PRESUMED TO KNOW THE NEEDS OF THE PEOPLE OF THE
STATE.  WHETHER OR NOT SPECIAL INQUIRIES SHOULD BE MADE IS A MATTER FOR
THE LEGISLATIVE DISCRETION.  HERE, THE EXISTENCE OF THE INDUSTRY,
HIGHLY IMPORTANT TO THE STATE, THE TRANSACTIONS IN THE TOBACCO MARKETS,
THE NECESSITY OF PROTECTING THE GROWERS FROM EXORBITANT WAREHOUSE
CHARGES, MUST BE PRESUMED TO HAVE BEEN FULLY KNOWN TO THE MEMBERS OF
THE LEGISLATURE AND THIS PRESUMPTION CANNOT BE OVERTHROWN, AS IT HAS
BEEN SOUGHT TO BE OVERTHROWN, BY TESTIMONY OF INDIVIDUAL LEGISLATORS. 

SECOND.  THE MAIN CONTENTION OF APPELLANTS IS THAT THE STATE HAD NO
POWER TO ENACT THE REGULATION AS IT ATTEMPTED TO GOVERN TRANSACTIONS IN
THE COURSE OF INTERSTATE AND FOREIGN COMMERCE.  APPELLANTS URGE THAT
PRACTICALLY ALL THE TOBACCO GROWN IN GEORGIA IS SHIPPED OUT OF THE
STATE, ABOUT FORTY PER CENT. IN FOREIGN, AND THE REMAINING SIXTY PER
CENT. IN INTERSTATE, COMMERCE; THAT THE PURCHASERS AT THE "MARKETS" IN
GEORGIA FOR THE MOST PART ARE MANUFACTURERS OF CIGARETTES WHO
IMMEDIATELY HAVE THE TOBACCO TRANSPORTED TO THEIR PLANTS OUTSIDE THE
STATE; THAT THE PURCHASES MADE BY SPECULATORS AND WAREHOUSEMEN ARE FOR
THE PURPOSE OF RESALE AS SOON AS POSSIBLE TO THE CIGARETTE
MANUFACTURERS, AND THUS THAT THE TOBACCO SO BOUGHT, AS WELL AS THE
REST, "IS DESTINED FOR INTERSTATE OR FOREIGN SHIPMENT." 

WE FIND IT UNNECESSARY TO PASS UPON THE AUTHORITY OF THE CONGRESS TO
REGULATE THE CHARGES OF THE WAREHOUSEMEN, FOR WE ARE OF THE OPINION
THAT, IF IT BE ASSUMED THAT CONGRESS HAS THAT AUTHORITY, IT HAS NOT
BEEN EXERCISED AND IN THE ABSENCE OF SUCH EXERCISE THE STATE MAY IMPOSE
THE REGULATION IN QUESTION FOR THE PROTECTION OF ITS PEOPLE. 

THE FEDERAL STATUTE, TO WHICH APPELLANTS REFER, IS THE "TOBACCO
INSPECTION ACT" OF AUGUST 23, 1935.  49 STAT. 731.  THAT STATUTE, WHILE
DECLARING THE TRANSACTIONS IN TOBACCO AT AUCTION MARKETS TO BE
"AFFECTED WITH A PUBLIC INTEREST" (SEC. 2) HAD A LIMITED OBJECTIVE.  IT
DID NOT UNDERTAKE TO REGULATE THE CHARGES OF WAREHOUSEMEN OR IN ANY WAY
TO DEROGATE FROM THE EXISTING STATE LEGISLATION UPON THAT SUBJECT.  IT
SOUGHT TO AID TOBACCO GROWERS BY ESTABLISHING AND PROMOTING THE USE OF
STANDARDS OF CLASSIFICATION AND BY MAINTAINING AN OFFICIAL INSPECTION
SERVICE.  IT WAS FOUND THAT THE FARMER HAD "NO DEFINITE SYSTEM OF
GRADES OF HIS OWN," THAT THE PRIVATE GRADING SYSTEMS USED BY THE BUYERS
WERE KEPT "STRICTLY CONFIDENTIAL" SO THAT "WITHOUT GOVERNMENT STANDARDS
THE FARMER HAS NO DEFINITE GUIDE FOR SORTING HIS TOBACCO," AND THAT
HENCE "FARMERS GENERALLY ARE UNABLE TO CLASS THEIR TOBACCO CORRECTLY TO
MEET THE TRADE'S DEMANDS."  FN1  TO MEET THIS NEED, THE ACT AUTHORIZED
THE SECRETARY OF AGRICULTURE TO MAKE INVESTIGATIONS AND TO ESTABLISH
STANDARDS FOR TOBACCO "BY WHICH ITS TYPE, GRADE, SIZE, CONDITION, OR
OTHER CHARACTERISTICS" MIGHT BE DETERMINED (SEC. 3).  IT AUTHORIZED THE
SECRETARY TO DESIGNATE AUCTION MARKETS, ON DETERMINING "BY REFERENDUM
THE DESIRE OF TOBACCO GROWERS," BUT IT WAS ALSO PROVIDED THAT THE ACT
SHOULD NOT BE CONSTRUED AS PREVENTING TRANSACTIONS IN TOBACCO AT
MARKETS NOT SO DESIGNATED (SEC. 5).  IT AUTHORIZED THE SECRETARY,
INDEPENDENTLY OR IN COOPERATION WITH OTHER BRANCHES OF THE GOVERNMENT,
STATE AGENCIES, OR OTHERS, TO EMPLOY AND LICENSE COMPETENT PERSONS AS
SAMPLERS OR WEIGHERS BUT IT WAS ADDED THAT THIS PROVISION WAS "INTENDED
MERELY TO PROVIDE FOR THE FURNISHING OF SERVICES UPON REQUEST OF THE
OWNER OR OTHER PERSON FINANCIALLY INTERESTED IN TOBACCO TO BE SAMPLED,
INSPECTED, OR WEIGHED," AND SHOULD "NOT BE CONSTRUED OTHERWISE" (SEC.
6).  AND THE SECRETARY WAS FURTHER AUTHORIZED, IN ORDER TO CARRY OUT
THE PURPOSES OF THE ACT, TO "COOPERATE WITH ANY OTHER DEPARTMENT OR
AGENCY OF THE GOVERNMENT; ANY STATE, TERRITORY, DISTRICT OR
POSSESSION," AS WELL AS WITH PURCHASING AND CONSUMING ORGANIZATIONS,
BOARDS OF TRADE, ETC. (SEC. 14). 

THE CONGRESS, AS THE REPORTS OF THE COMMITTEES IN BOTH HOUSES SHOW,
FN2  WAS FULLY CONVERSANT WITH THE MANNER IN WHICH THE TRANSACTIONS IN
TOBACCO WERE CARRIED ON.  IT CANNOT BE DOUBTED THAT THE CONGRESS WAS
WELL AWARE OF THE LONG-ESTABLISHED LEGISLATION IN VIRGINIA, NORTH
CAROLINA, SOUTH CAROLINA, AND THE MORE RECENT LEGISLATION IN GEORGIA,
PRESCRIBING MAXIMUM CHARGES FOR THE SERVICES OF WAREHOUSEMEN.  WE DEEM
IT TO BE HIGHLY SIGNIFICANT THAT, IN THE LIGHT OF EXISTING PRACTICES
AND STATUTORY REGULATIONS, THE CONGRESS CAREFULLY RESTRICTED ITS OWN
REQUIREMENTS AND DID NOT ATTEMPT TO INTERFERE WITH THE OPERATION OF
STATE LAWS AS TO THE AMOUNTS WHICH WAREHOUSEMEN MIGHT CHARGE.  THE
PURPOSE AND TERMS OF THE FEDERAL STATUTE NEGATIVE ANY SUCH INTENTION. 
IT IS INCONCEIVABLE THAT THE CONGRESS IN ENDEAVORING TO AID THE TOBACCO
GROWERS IN SORTING OR "GRADING," AND THUS TO FACILITATE THE MARKETING
OF THEIR TOBACCO, INTENDED TO DEPRIVE THEM OF THE PROTECTION THEY
ALREADY HAD AGAINST EXTORTIONATE CHARGES OF THE WAREHOUSEMEN UPON WHOM
THEY DEPENDED IN MAKING THEIR SALES.  INSTEAD OF FRUSTRATING THE
OPERATION OF SUCH STATE LAWS, THE PROVISIONS OF THE ACT EXPRESSLY
AFFORDED AND EMPHASIZED THE OPPORTUNITY FOR COOPERATION WITH THE STATES
IN PROTECTING THE FARMERS' INTERESTS.  IN THIS VIEW WE FIND NO GROUND
FOR THE CONTENTION THAT CONGRESS HAS TAKEN POSSESSION OF THE FIELD OF
REGULATION TO THE EXCLUSION OF STATE LAWS WHICH DO NOT CONFLICT WITH
ITS OWN REQUIREMENTS. 

THE CASE CALLS FOR THE APPLICATION OF THE WELL-ESTABLISHED PRINCIPLE
THAT CONGRESS MAY CIRCUMSCRIBE ITS REGULATION AND OCCUPY A LIMITED
FIELD, AND THAT THE INTENT TO SUPERSEDE THE EXERCISE BY THE STATE OF
ITS POLICE POWER AS TO MATTERS NOT COVERED BY THE FEDERAL LEGISLATION
IS NOT TO BE IMPLIED UNLESS THE LATTER FAIRLY INTERPRETED IS IN ACTUAL
CONFLICT WITH THE STATE LAW.  SAVAGE V. JONES, 225 U.S. 501, 533;
ATLANTIC COAST LINE V. GEORGIA, 234 U.S. 280, 293, 294; ILLINOIS
CENTRAL R. CO. V. PUBLIC UTILITIES COMM'N, 245 U.S. 493, 510; CAREY V.
SOUTH DAKOTA, 250 U.S. 118, 122; LEHIGH VALLEY R. CO. V. PUBLIC
UTILITIES COMM'N, 278 U.S. 24, 35; ATCHISON, T. & S.F. RY. CO. V.
RAILROAD  COMM'RS, 283 U.S. 380, 392, 393; HARTFORD INDEMNITY CO. V.
ILLINOIS, 298 U.S. 155, 158. 

LAYING ON ONE SIDE THE FEDERAL STATUTE, AS IN NO WAY INCONSISTENT, WE
FIND NO GROUND FOR CONCLUDING THAT THE STATE REQUIREMENTS LAY ANY
ACTUAL BURDEN UPON INTERSTATE OR FOREIGN COMMERCE.  THE GEORGIA ACT
DOES NOT ATTEMPT TO FIX THE PRICES AT THE AUCTION SALES OR TO REGULATE
THE ACTIVITIES OF THE PURCHASERS.  THE FIXING OF REASONABLE MAXIMUM
CHARGES FOR THE SERVICES OF THE WAREHOUSEMEN IN AID OF THE TOBACCO
GROWERS DOES NOT MILITATE AGAINST ANY INTEREST OF THOSE WHO BUY.  THEY
PAY THE BID PRICE, AS ACCEPTED, AND THE WAREHOUSEMAN PAYS THE SELLER,
DEDUCTING FROM THE PURCHASE PRICE THE WAREHOUSE CHARGES. 

WE ARE THUS BROUGHT TO THE FINAL CONTENTION OF APPELLANTS THAT THE
STATE LAW, ALTHOUGH NOT IN CONFLICT WITH ANY EXERTION OF FEDERAL
AUTHORITY, MUST FALL AS BEING REPUGNANT TO THE EXISTENCE OF AN
EXCLUSIVE FEDERAL POWER ALTHOUGH UNEXERCISED.  THE CONTENTION IGNORES
THE PRINCIPLE THAT THIS GROUND OF INVALIDITY IS TO BE FOUND ONLY WITH
RESPECT TO SUCH MATTERS AS DEMAND A GENERAL SYSTEM OR UNIFORMITY OF
REGULATION; THAT IN OTHER MATTERS, ADMITTING OF DIVERSITY OF TREATMENT
ACCORDING TO THE SPECIAL REQUIREMENTS OF LOCAL CONDITIONS, THE STATES
MAY ACT WITHIN THEIR RESPECTIVE JURISDICTIONS UNTIL CONGRESS SEES FIT
TO ACT.  COOLEY V. BOARD OF WARDENS, 12 HOW.  299, 319; MINNESOTA RATE
CASES, 230 U.S. 352, 399, 400; HENDRICK V. MARYLAND, 235 U.S. 610, 622;
MORRIS V. DUBY, 274 U.S. 135, 143; SPROLES V. BINFORD, 286 U.S. 374,
390. 

IN THE INSTANT CASE, THE GEORGIA STATUTE DEALS WITH A LOCAL NEED,
EXERCISING THE STATE'S PROTECTIVE POWER WITH RESPECT TO ITS OWN
INDUSTRY.  A SIMILAR CONTENTION TO THAT NOW ADVANCED WAS HELD UNTENABLE
IN MUNN V. ILLINOIS, 94 U.S. 113, WHERE STATE REGULATION OF CHARGES BY
THE PROPRIETORS OF GRAIN ELEVATORS WAS SUSTAINED DESPITE THE FACT THAT
THE ELEVATORS WERE USED AS INSTRUMENTALITIES BY THOSE WHO ENGAGED IN
INTERSTATE COMMERCE.  ID., P. 135.  THE POINT WAS AGAIN RAISED AND
OVERRULED IN BUDD V. NEW YORK, 143 U.S. 517, IN UPHOLDING THE NEW YORK
STATUTE REGULATING CHARGES FOR "ELEVATING, TRIMMING, RECEIVING,
WEIGHING AND DISCHARGING GRAIN BY MEANS OF FLOATING AND STATIONARY
ELEVATORS AND WAREHOUSES."  IT WAS RECOGNIZED THAT, IN THE ACTUAL STATE
OF THE BUSINESS, THE PASSAGE OF THE GRAIN TO THE CITY OF NEW YORK AND
OTHER PLACES ON THE SEABOARD WITHOUT THE USE OF ELEVATORS WOULD BE
PRACTICALLY IMPOSSIBLE.  THE ELEVATOR AT BUFFALO WAS A LINK IN THE
CHAIN OF TRANSPORTATION OF THE GRAIN FROM THE PLACES WHERE IT WAS GROWN
TO THE SEABOARD, BUT THE COURT SAID:  "SO FAR AS THE STATUTE IN
QUESTION IS A REGULATION OF COMMERCE, IT IS A REGULATION OF COMMERCE
ONLY ON THE WATERS OF THE STATE OF NEW YORK.  IT OPERATES ONLY WITHIN
THE LIMITS OF THAT STATE, AND IS NO MORE OBNOXIOUS AS A REGULATION OF
INTERSTATE COMMERCE THAN WAS THE STATUTE OF ILLINOIS IN RESPECT TO
WAREHOUSES, IN MUNN V. ILLINOIS.  IT IS OF THE SAME CHARACTER WITH
NAVIGATION LAWS IN RESPECT TO NAVIGATION WITHIN THE STATE, AND LAWS
REGULATING WHARFAGE RATES WITHIN THE STATE, AND OTHER KINDRED LAWS." 
ID., PP. 544, 545.  AGAIN, IN BRASS V. NORTH DAKOTA, 153 U.S. 391, THE
STATUTE OF THAT STATE "REGULATING GRAIN WAREHOUSES AND WEIGHING AND
HANDLING OF GRAIN" WAS HELD NOT TO AMOUNT TO A REGULATION OF COMMERCE
BETWEEN THE STATES IN THE ABSENCE OF A CONFLICT WITH FEDERAL
LEGISLATION, UPON THE AUTHORITY OF THE MUNN AND BUDD CASES. 

IN CARGILL CO. V. MINNESOTA, 180 U.S. 452, 470, THE REQUIREMENT OF A
STATE LICENSE FOR GRAIN WAREHOUSES ON RAILROAD RIGHTS OF WAY WAS FOUND
TO BE NOT INCONSISTENT WITH THE POWER OF THE CONGRESS, ALTHOUGH THE
WAREHOUSE COMPANY PURCHASED THE GRAIN, HANDLED IN OR SHIPPED FROM ITS
WAREHOUSE, FOR THE PURPOSE OF TRANSPORTING IT AS ITS PROPERTY TO ITS
TERMINAL ELEVATORS IN WISCONSIN AND ILLINOIS AND THENCE TO OTHER POINTS
IN THE EASTERN STATES.  ID., P. 462.  THE COURT THUS STATED THE REASONS
FOR THIS CONCLUSION:  "THE STATUTE PUTS NO OBSTACLE IN THE WAY OF THE
PURCHASE BY THE DEFENDANT COMPANY OF GRAIN IN THE STATE OR THE SHIPMENT
OUT OF THE STATE OF SUCH GRAIN AS IT PURCHASED.  THE LICENSE HAS
REFERENCE ONLY TO THE BUSINESS OF THE DEFENDANT AT ITS ELEVATOR AND
WAREHOUSE.  THE STATUTE ONLY REQUIRES A LICENSE IN RESPECT OF BUSINESS
CONDUCTED AT AN ESTABLISHED WAREHOUSE IN THE STATE BETWEEN THE
DEFENDANT AND THE SELLERS OF GRAIN....  IN NO REAL OR SUBSTANTIAL SENSE
IS SUCH COMMERCE OBSTRUCTED BY THE REQUIREMENT OF A LICENSE."  SEE,
ALSO, MERCHANTS EXCHANGE V. MISSOURI, 248 U.S. 365, 368.    EVEN WHERE
THE FEDERAL GOVERNMENT HAS INTERVENED, AS IN THE UNITED STATES
WAREHOUSING ACT OF AUGUST 11, 1916, 7 U.S.C., C. 10, IN PROVIDING FOR
LICENSES FOR WAREHOUSES WHERE AGRICULTURAL PRODUCTS ARE "STORED FOR
INTERSTATE OR FOREIGN COMMERCE," WE HELD THAT THE LICENSE DID NOT
CONVERT THE WAREHOUSEMAN INTO AN INSTRUMENTALITY OF THE FEDERAL
GOVERNMENT AND, WHILE BY MEANS OF THE LICENSING PROVISIONS A MEASURE OF
CONTROL OVER THOSE ENGAGED IN THE BUSINESS WAS SECURED TO THE NATIONAL
GOVERNMENT, STILL THE LICENSE DID NOT CONFER UPON THE WAREHOUSEMAN
IMMUNITY FROM STATE TAXATION.  FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S.
17, 22, 23.  THAT CASE WAS FOLLOWED BY OUR DECISION IN CHASSANIOL V.
GREENWOOD, 291 U.S. 584, TO THE EFFECT THAT THE BUSINESS OF BUYING AND
SELLING COTTON LOCALLY PRODUCED, PROCESSED AND WAREHOUSED, WAS LOCAL IN
CHARACTER, AND THAT A LOCAL OCCUPATION TAX UPON THE BUYER DID NOT
CONTRAVENE THE COMMERCE CLAUSE ALTHOUGH THE COURSE OF THE BUSINESS WAS
SUCH THAT ALL THE COTTON SO BOUGHT WAS ULTIMATELY SHIPPED BY THE BUYER
IN INTERSTATE OR FOREIGN COMMERCE.  ON SIMILAR GROUNDS WE HELD IN
MINNESOTA V. BLASIUS, 290 U.S. 1, 8, THAT BECAUSE THERE WAS "A FLOW OF
INTERSTATE COMMERCE" WHICH WAS SUBJECT TO THE REGULATING POWER OF THE
CONGRESS, IT DID NOT NECESSARILY FOLLOW THAT, IN THE ABSENCE OF A
CONFLICT WITH THE EXERCISE OF THAT POWER, A STATE MIGHT NOT LAY A NON
DISCRIMINATORY TAX UPON PROPERTY WHICH "ALTHOUGH CONNECTED WITH THAT
FLOW AS A GENERAL COURSE OF BUSINESS" HAD COME TO REST AND ACQUIRED A
SITUS WITHIN THE STATE. 

ALL THESE DECISIONS BUT ILLUSTRATE THE PRINCIPLE THAT THE MERE
EXISTENCE OF THE CONGRESSIONAL POWER, NO CONFLICT WITH ITS EXERCISE
BEING SHOWN, DOES NOT DEPRIVE THE STATES OF THEIR AUTHORITY TO
SAFEGUARD THEIR LOCAL INTERESTS BY LEGISLATION WHICH DOES NOT DIRECTLY
BURDEN TRANSACTIONS IN INTERSTATE OR FOREIGN COMMERCE. 

THE CASES UPON WHICH APPELLANTS RELY ARE DISTINGUISHABLE.  IN DAHNKE
WALKER CO. V. BONDURANT, 257 U.S. 282, THE STATUTE HELD TO BE INVALID
IMPOSED BURDENSOME CONDITIONS UPON THE ENFORCEMENT OF RIGHTS ARISING
FROM TRANSACTIONS IN INTERSTATE COMMERCE.  IN LEMKE V. FARMERS GRAIN
CO., 258 U.S. 50, THE NORTH DAKOTA STATUTE OF 1919 DISCLOSED A
COMPREHENSIVE SCHEME TO REGULATE THE BUYING OF GRAIN IN THE COURSE OF
INTERSTATE COMMERCE.  SUCH PURCHASES COULD BE MADE ONLY BY THOSE WHO
HELD LICENSES FROM THE STATE, PAID STATE CHARGES FOR THE SAME, AND
ACTED UNDER A SYSTEM OF GRADING, INSPECTING AND WEIGHING FULLY DEFINED
IN THE ACT.  THE GRAIN COULD ONLY BE PURCHASED SUBJECT TO THE POWER OF
THE STATE GRAIN INSPECTOR TO DETERMINE THE MARGIN OF PROFIT WHICH THE
BUYER COULD REALIZE UPON HIS PURCHASE.  THAT MARGIN OF PROFIT WAS
DEFINED TO BE THE DIFFERENCE BETWEEN THE PRICE PAID AT THE NORTH DAKOTA
ELEVATOR AND THE MARKET PRICE, WITH AN ALLOWANCE FOR FREIGHT, AT THE
MINNESOTA POINTS TO WHICH THE GRAIN WAS SHIPPED AND SOLD.  THE STATE
OFFICER WAS THUS AUTHORIZED TO "FIX AND DETERMINE THE PRICE" TO BE PAID
FOR GRAIN WHICH WAS "BOUGHT, SHIPPED, AND SOLD IN INTERSTATE
COMMERCE."  THAT THE PROVISION WAS A REGULATION OF INTERSTATE COMMERCE
WAS SAID TO BE "OBVIOUS FROM ITS MERE STATEMENT."  ID., PP. 56-58.  THE
LATER NORTH DAKOTA STATUTE OF 1923 FELL UNDER A LIKE CONDEMNATION IN
SHAFER V. FARMERS GRAIN CO., 268 U.S. 189, AS THE STATUTE SUBJECTED THE
BUYING FOR INTERSTATE SHIPMENT TO CONDITIONS AND A MEASURE OF CONTROL
WHICH CAUSED A DIRECT INTERFERENCE WITH INTERSTATE COMMERCE. 

HERE, THE GEORGIA ACT LAYS NO CONSTRAINT UPON PURCHASES IN INTERSTATE
COMMERCE, DOES NOT ATTEMPT TO FIX THE PRICES OR CONDITIONS OF
PURCHASES, OR THE PROFIT OF THE PURCHASERS.  IT SIMPLY SEEKS TO PROTECT
THE TOBACCO GROWERS FROM UNREASONABLE CHARGES OF THE WAREHOUSEMEN FOR
THEIR SERVICES TO THE GROWERS IN HANDLING AND SELLING THE TOBACCO FOR
THEIR ACCOUNT.  WHATEVER RELATION THESE TRANSACTIONS HAD TO INTERSTATE
AND FOREIGN COMMERCE, THE EFFECT IS MERELY INCIDENTAL AND IMPOSES NO
DIRECT BURDEN UPON THAT COMMERCE.  THE STATE IS ENTITLED TO AFFORD ITS
INDUSTRY THIS MEASURE OF PROTECTION UNTIL ITS REQUIREMENT IS SUPERSEDED
BY VALID FEDERAL REGULATION.  THE JUDGMENT OF THE DISTRICT COURT IS
AFFIRMED. 

FN1  SEE REPORT OF THE HOUSE COMMITTEE ON AGRICULTURE, H.R. REP. NO.
1102, 74TH CONG., 1ST SESS.; REPORT OF SENATE COMMITTEE ON AGRICULTURE
AND FORESTRY, SEN. REP. NO. 1211, 74TH CONG., 1ST SESS. 

FN2  SEE NOTE 1. 
..END :



HARTFORD CO. V. HARRISON, 301 U.S. 459 


NO. 355.  ARGUED FEBRUARY 2, 1937.  - DECIDED MAY 24, 1937.  - 183 GA. 1
- 187 S.E. 648, REVERSED. 


A STATUTORY DISCRIMINATION BETWEEN THE MUTUAL COMPANIES AND THE STOCK
COMPANIES WHICH WRITE FIRE, CASUALTY, ETC., INSURANCE IN THE STATE,
FORBIDDING STOCK COMPANIES TO ACT THROUGH AGENTS WHO ARE THEIR SALARIED
EMPLOYEES BUT PERMITTING THIS TO MUTUAL COMPANIES, IS REPUGNANT TO THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 463. 

GEORGIA LS., 1935, ACT OF MAR. 28, 1935, SEC. 1, HELD
UNCONSTITUTIONAL.  THE DISCRIMINATION HAS NO REASONABLE RELATION TO THE
DIFFERENCE BETWEEN THE TWO CLASSES OF COMPANIES.  IT IS ARBITRARY. 

HARTFORD STEAM BOILER INSPECTION & INSURANCE CO. ET AL. V. HARRISON,
INSURANCE COMMISSIONER. 

APPEAL FROM THE SUPREME COURT OF GEORGIA. 

APPEAL FROM A JUDGMENT WHICH REVERSED A DECISION OF A TRIAL COURT
DIRECTING THAT A WRIT OF MANDAMUS ISSUE REQUIRING THE ABOVE-NAMED
INSURANCE COMMISSIONER TO LICENSE ONE OF THE APPELLANTS AS GENERAL
AGENT OF THE OTHER, THE INSURANCE COMPANY. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY, A STOCK
CORPORATION ORGANIZED UNDER THE LAWS OF CONNECTICUT, CARRYING ON
CASUALTY INSURANCE BUSINESS IN GEORGIA, AND ITS SALARIED EMPLOYEE W. M.
FRANCIS, CITIZEN OF THAT STATE, ASKED THE SUPERIOR COURT, FULTON
COUNTY, FOR A MANDAMUS REQUIRING THE INSURANCE COMMISSIONER TO LICENSE
HIM AS RESIDENT AGENT.  THE COMMISSIONER CLAIMED THAT WHILE DULY
QUALIFIED IN ALL OTHER RESPECTS, THE EMPLOYEE COULD NOT BE SO LICENSED
BECAUSE OF THE INHIBITION IN SEC. 1, ACT OF THE GENERAL ASSEMBLY,
APPROVED MARCH 28, 1935.  GEORGIA LAWS, 1935, P. 140: 

"NO LICENSED FIRE OR CASUALTY INSURANCE COMPANY OR COMPANY WRITING
FIDELITY OR SURETY BONDS, SHALL WRITE OR ISSUE ANY POLICY OR INDEMNITY
CONTRACT ON ANY RISK IN THIS STATE EXCEPT THROUGH A RESIDENT AGENT
LICENSED BY THE INSURANCE COMMISSIONER:  PROVIDED  ...  THE WORDS
'RESIDENT AGENT' AS USED IN THIS SECTION ARE DEEMED TO MEAN RESIDENT
AGENTS ENGAGED IN THE SOLICITATION OF SUCH BUSINESS FROM THE PUBLIC
GENERALLY AND SHALL NOT INCLUDE ANY SALARIED EMPLOYEE OF ANY INSURANCE
COMPANY DOING BUSINESS IN THIS STATE; BUT SHALL INCLUDE ANY AGENTS OF
MUTUAL INSURANCE COMPANIES HOWEVER COMPENSATED...." 

APPELLANTS CLAIMED THAT ENFORCEMENT OF THE QUOTED INHIBITION WOULD
DEPRIVE THEM OF THE EQUAL PROTECTION OF THE LAWS, CONTRARY TO THE
FOURTEENTH AMENDMENT. 

THE TRIAL COURT RULED "THAT SAID ACT, IN DISCRIMINATING AGAINST STOCK
COMPANIES AND THE AGENTS THEREOF, AND IN FAVOR OF MUTUAL COMPANIES AND
THE AGENTS THEREOF, SETS UP AN ARBITRARY CLASSIFICATION BEARING NO
REASONABLE RELATIONSHIP TO THE SUBJECT-MATTER OF THE LEGISLATION, AND
IS DISCRIMINATORY, DEPRIVING BOTH PETITIONER, THE HARTFORD STEAM BOILER
INSPECTION AND INSURANCE COMPANY, AS AN INSURANCE COMPANY, AND
PETITIONER, W. M. FRANCIS, AS AN INDIVIDUAL, OF THEIR CONSTITUTIONAL
RIGHTS."  ACCORDINGLY, IT DIRECTED THAT MANDAMUS ISSUE. 

IN THE STATE SUPREME COURT COUNSEL AGREED THAT THE SOLE QUESTION
INVOLVED WAS THE CONSTITUTIONALITY OF THE STATUTE.  THAT COURT, BEING
OF OPINION THAT THE ACT PRESCRIBED NO UNDUE DISCRIMINATION AND DID NOT
OTHERWISE CONFLICT WITH THE FEDERAL CONSTITUTION, REVERSED THE TRIAL
COURT.  THE CAUSE IS HERE BY APPEAL. 

THE APPLICABLE PRINCIPLE IN RESPECT OF CLASSIFICATION HAS OFTEN BEEN
ANNOUNCED.  IT WILL SUFFICE TO QUOTE A PARAGRAPH FROM LOUISVILLE GAS &
ELECTRIC CO. V. COLEMAN, 277 U.S. 32, 37, 38. 

"...  IT MAY BE SAID GENERALLY THAT THE EQUAL PROTECTION CLAUSE MEANS
THAT THE RIGHTS OF ALL PERSONS MUST REST UPON THE SAME RULE UNDER
SIMILAR CIRCUMSTANCES, KENTUCKY RAILROAD TAX CASES, 115 U.S. 321, 337;
MAGOUN V. ILLINOIS TRUST & SAVINGS BANK, 170 U.S. 283, 293, AND THAT IT
APPLIES TO THE EXERCISE OF ALL THE POWERS OF THE STATE WHICH CAN AFFECT
THE INDIVIDUAL OR HIS PROPERTY, INCLUDING THE POWER OF TAXATION. 
COUNTY OF SANTA CLARA V. SOUTHERN PAC. R. CO., 18 FED. 385, 388-399;
THE RAILROAD TAX CASES, 13 FED. 722, 733.  IT DOES NOT, HOWEVER, FORBID
CLASSIFICATION; AND THE POWER OF THE STATE TO CLASSIFY FOR PURPOSES OF
TAXATION IS OF WIDE RANGE AND FLEXIBILITY, PROVIDED ALWAYS, THAT THE
CLASSIFICATION 'MUST BE REASONABLE, NOT ARBITRARY, AND MUST REST UPON
SOME GROUND OF DIFFERENCE HAVING A FAIR AND SUBSTANTIAL RELATION TO THE
OBJECT OF THE LEGISLATION, SO THAT ALL PERSONS SIMILARLY CIRCUMSTANCED
SHALL BE TREATED ALIKE.'  ROYSTER GUANO CO. V. VIRGINIA, 253 U.S. 412,
415; AIR-WAY CORP. V. DAY, 266 U.S. 71, 85; SCHLESINGER V. WISCONSIN,
270 U.S. 230, 240.  THAT IS TO SAY, MERE DIFFERENCE IS NOT ENOUGH:  THE
ATTEMPTED CLASSIFICATION 'MUST ALWAYS REST UPON SOME DIFFERENCE WHICH
BEARS A REASONABLE AND JUST RELATION TO THE ACT IN RESPECT TO WHICH THE
CLASSIFICATION IS PROPOSED, AND CAN NEVER BE MADE ARBITRARILY AND
WITHOUT ANY SUCH BASIS.'  GULF, COLORADO & SANTA FE RY. V. ELLIS, 165
U.S. 150, 155.  DISCRIMINATIONS OF AN UNUSUAL CHARACTER ESPECIALLY
SUGGEST CAREFUL CONSIDERATION TO DETERMINE WHETHER THEY ARE OBNOXIOUS
TO THE CONSTITUTIONAL PROVISION.  COMPARE MARTIN V. DISTRICT OF
COLUMBIA, 205 U.S. 135, 139; BELL'S GAP R. CO. V. PENNSYLVANIA, 134
U.S. 232, 237." 

DESPITE THE BROAD RANGE OF THE STATE'S DISCRETION, IT HAS A LIMIT
WHICH MUST BE MAINTAINED IF THE CONSTITUTIONAL SAFEGUARD IS NOT TO BE
OVERTHROWN.  DISCRIMINATIONS ARE NOT TO BE SUPPORTED BY MERE FANCIFUL
CONJECTURE.  BORDEN'S CO. V. BALDWIN, 293 U.S. 194, 209.  THEY CANNOT
STAND AS REASONABLE IF THEY OFFEND THE PLAIN STANDARDS OF COMMON
SENSE.  IN THIS INSTANCE, THE APPELLANT COMPANY HAD BEEN LICENSED TO DO
BUSINESS IN THE STATE AND WAS ENTITLED TO EQUAL PROTECTION IN
CONDUCTING THAT BUSINESS.  THE ANSWER OF THE INSURANCE COMMISSIONER
ADMITTED THAT HE WAS "ENTIRELY SATISFIED AS TO THE CHARACTER, STANDING,
RESPONSIBILITY, ABILITY, AND KNOWLEDGE" OF THE PROPOSED AGENT, AND THAT
THE LICENSE WAS REFUSED SOLELY BECAUSE HE WAS A "SALARIED" EMPLOYEE. 
IT IS PLAIN THAT THE REQUIREMENT THAT THE RESIDENT AGENTS OF STOCK
COMPANIES SHOULD NOT WORK ON A SALARY HAS NO RELATION TO ECONOMY OR
EFFICIENCY IN MANAGEMENT.  THE ANSWER OF THE INSURANCE COMMISSIONER
STATES THAT ALL OF THE CONTRACTS OF MUTUAL FIRE AND CASUALTY INSURANCE
COMPANIES ARE "NEGOTIATED BY SALARIED EMPLOYEES" AND THAT THIS METHOD
OF DOING BUSINESS WAS ADOPTED "IN ORDER TO REDUCE THE EXPENSES OF
OPERATION AND THUS BENEFIT THE POLICYHOLDERS THEMSELVES." 

IT IS IDLE TO ELABORATE THE DIFFERENCES BETWEEN MUTUAL AND STOCK
COMPANIES.  THESE ARE MANIFEST AND ADMITTED.  BUT THE STATUTORY
DISCRIMINATION HAS NO REASONABLE RELATION TO THESE DIFFERENCES.  WE CAN
DISCOVER NO REASONABLE BASIS FOR PERMITTING MUTUAL INSURANCE COMPANIES
TO ACT THROUGH SALARIED RESIDENT EMPLOYEES AND EXCLUDE STOCK COMPANIES
FROM THE SAME PRIVILEGE.  IF THERE WERE ANY SUCH BASIS, IT WOULD HAVE
BEEN DISCOVERED BY THE STATE COURTS.  THE TRIAL COURT SAID THERE WAS
NONE.  TWO JUSTICES OF THE SUPREME COURT WERE OF THE SAME OPINION.  THE
PREVAILING OPINION IN THAT COURT FAILS TO DISCLOSE ANY GOOD REASON FOR
THE DISCRIMINATION.  THE DILIGENCE OF COUNSEL FOR APPELLEE HAS NOT BEEN
MORE SUCCESSFUL.  THUS THE EFFORTS IN THE STATE COURTS, AND HERE, TO
FIND SUPPORT FOR THE STATUTE HAVE CONSPICUOUSLY FAILED.  STATEMENTS AS
TO THE EXTENT OF THE BUSINESS WRITTEN BY STOCK COMPANIES ARE OBVIOUSLY
BESIDE THE MARK. 

FOR THE ERROR INDICATED, THE QUESTIONED JUDGMENT MUST BE REVERSED AND
THE CAUSE RETURNED TO THE SUPREME COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 

MR. JUSTICE ROBERTS, DISSENTING. 

THE APPELLANTS PETITIONED THE SUPERIOR COURT OF FULTON COUNTY,
GEORGIA, FOR A MANDAMUS DIRECTED TO THE APPELLEE AS INSURANCE
COMMISSIONER REQUIRING HIM TO ISSUE A LICENSE TO FRANCIS, A SALARIED
EMPLOYE OF THE HARTFORD COMPANY, AS AN INSURANCE AGENT FOR THE WRITING
OF CASUALTY INSURANCE IN THE STATE OF GEORGIA PURSUANT TO THE ACT OF
THE GENERAL ASSEMBLY OF MARCH 28, 1935.  THE PETITION ALLEGED THAT
FRANCIS POSSESSED ALL THE STATUTORY QUALIFICATIONS FOR A LICENSE SAVE
ONLY THAT HE WAS A SALARIED EMPLOYE OF THE INSURANCE COMPANY AND THAT
THE PROVISION OF THE STATUTE EXCLUDING SALARIED EMPLOYES OF INSURANCE
COMPANIES FROM LICENSURE IS UNCONSTITUTIONAL. 

CASUALTY INSURANCE COMPANIES FROM WRITING OR ISSUING ANY POLICY OR
INDEMNITY CONTRACT ON ANY RISK IN THE STATE OF GEORGIA EXCEPT THROUGH A
RESIDENT AGENT LICENSED BY THE INSURANCE COMMISSIONER.  THE SECTION
REQUIRES THE APPLICANT FOR A LICENSE TO BE A BONA FIDE RESIDENT OF THE
STATE, OF GOOD CHARACTER AND COMPETENT TO PERFORM THE DUTIES OF AN
AGENT.  IT FURTHER PROVIDES:  "THE WORDS 'RESIDENT AGENT' AS USED IN
THIS SECTION ARE DEEMED TO MEAN RESIDENT AGENTS ENGAGED IN THE
SOLICITATION OF SUCH BUSINESS FROM THE PUBLIC GENERALLY AND SHALL NOT
INCLUDE ANY SALARIED EMPLOYE OF ANY INSURANCE COMPANY DOING BUSINESS IN
THIS STATE; BUT SHALL INCLUDE ANY AGENTS OF MUTUAL INSURANCE COMPANIES
HOWEVER COMPENSATED." 

THE GROUND UPON WHICH THE ACT IS HELD INVALID IS THAT IT UNREASONABLY
DISCRIMINATES BETWEEN SALARIED EMPLOYES OF MUTUAL INSURANCE COMPANIES
AND SIMILAR EMPLOYES OF STOCK COMPANIES. 

THE ANSWER ALLEGES THAT THERE IS A WELL RECOGNIZED DIFFERENCE BETWEEN
STOCK AND MUTUAL INSURANCE COMPANIES IN THAT, IN THE CASE OF THE
FORMER, THE RELATIONSHIP BETWEEN THE COMPANY AND ITS POLICY-HOLDERS IS
ONE OF CONTRACT MERELY, THEY DEALING AT ARM'S LENGTH, WHEREAS IN THE
LATTER THE POLICY-HOLDERS ARE THE OWNERS OF THE COMPANY AND CONSTITUTE
ITS MEMBERSHIP.  OTHER WELL KNOWN DIFFERENCES BETWEEN MUTUAL AND STOCK
INSURANCE ARE DETAILED IN THE ANSWER AND WILL BE REFERRED TO
HEREINAFTER. 

THE CASE WAS HEARD UPON THE PETITION AND ANSWER AND THE TRIAL COURT,
IN THE VIEW THAT THE ACT WAS UNCONSTITUTIONAL, ORDERED THAT A MANDAMUS
ISSUE.  UPON APPEAL THE SUPREME COURT OF GEORGIA REVERSED THE
JUDGMENT.  I AM OF THE OPINION THAT ITS DECISION WAS RIGHT AND SHOULD
BE AFFIRMED. 

FIRST.  ON ITS FACE THE STATUTE IS A PROPER EXERCISE OF THE STATE'S
POLICE POWER.  THE PROVISION FOR LICENSING ONLY BONA FIDE RESIDENTS OF
THE STATE IS VALID.  FN2  REGULATION OF THE RATES CHARGED FOR
INSURANCE, OF THE RELATIONS OF THOSE ENGAGED IN THE BUSINESS AND OF THE
AMOUNT OF AGENTS' COMPENSATION FALL WITHIN THE EXERCISE OF THIS POWER. 
FN3  THE CLAIM HERE IS THAT THE PARTICULAR REGULATION IS UNREASONABLE
AND DISCRIMINATORY.  THE PRESUMPTION OF CONSTITUTIONAL VALIDITY MUST
PREVAIL UNLESS THE TERMS OF THE STATUTE, OR WHAT WE JUDICIALLY KNOW, OR
FACTS PROVED BY THE APPELLANTS, OVERTHROW THAT PRESUMPTION.  AS IT IS
CONCEIVABLE THAT CONDITIONS EXISTED IN GEORGIA WHICH JUSTIFIED THE
DIFFERENCE IN TREATMENT OF THE AGENTS OF THE TWO SORTS OF COMPANIES,
AND AS NO CIRCUMSTANCES ARE ALLEGED OR PROVED OR ARE OF JUDICIAL
KNOWLEDGE WHICH NEGATIVE THE EXISTENCE OF THOSE CONDITIONS THE ATTACK
UPON THE STATUTE SHOULD FAIL.  FN4 

SECOND.  THE APPELLANT FRANCIS ASSERTS HE IS DENIED EQUAL PROTECTION
BECAUSE AGENTS OF MUTUAL INSURANCE COMPANIES MAY BE LICENSED EVEN
THOUGH THEIR COMPENSATION CONSISTS OF A SALARY RATHER THAN
COMMISSIONS.  THE ANSWER SETS UP THAT MUTUAL INSURANCE COMPANIES ARE
ORGANIZED ON A DIFFERENT BASIS FROM STOCK COMPANIES, DO BUSINESS IN A
WHOLLY DIFFERENT WAY AND SUSTAIN AN ALTOGETHER DIFFERENT RELATION TO
THEIR POLICY-HOLDERS THAN DO STOCK COMPANIES.  THIS IS MATTER OF COMMON
KNOWLEDGE.  SECTION 56-1401 OF THE GEORGIA CODE 1933 IS:  "THE CONTRACT
OF INSURANCE IS SOMETIMES UPON THE IDEA OF MUTUALITY, BY WHICH EACH OF
THE INSURED BECOMES ONE OF THE INSURERS, THEREBY BECOMING INTERESTED IN
THE PROFITS AND LIABLE FOR THE LOSSES; WITHOUT A CHARTER, SUCH AN
ORGANIZATION WOULD BE GOVERNED BY THE GENERAL LAW OF PARTNERSHIP; WHEN
INCORPORATED, THEY ARE SUBJECT TO THE TERMS OF THEIR CHARTERS." 
GOVERNMENT OF MUTUAL INSURANCE COMPANIES SETTING UP FOR THEM A SYSTEM
QUITE APART FROM THAT PRESCRIBED FOR THE INCORPORATION AND REGULATION
OF STOCK COMPANIES.  THE DECISION LAW OF THE STATE ALSO RECOGNIZES THE
FUNDAMENTAL DIFFERENCE BETWEEN THE TWO KINDS OF COMPANY.  FN5 THE
SUPREME COURT OF GEORGIA QUOTED AND RELIED UPON ITS EARLIER DECISION AS
TO THE RADICAL DIFFERENCE BETWEEN STOCK AND MUTUAL COMPANIES AND THEIR
METHODS OF TRANSACTING BUSINESS, AND REFUSED TO HOLD THE CLASSIFICATION
OF THE STATUTE ARBITRARY OR UNREASONABLE. 

THE LITERATURE ON THE SUBJECT SHOWS THAT AT ITS INCEPTION THE FIRE
INSURANCE BUSINESS IN THE UNITED STATES WAS MODELLED UPON THE MUTUAL
COMPANIES OF GREAT BRITAIN.  FN6  STOCK COMPANIES, HOWEVER, WERE SOON
ORGANIZED AND RAPIDLY GREW TO SUCH PROPORTIONS THAT TO-DAY THEY
TRANSACT ABOUT SEVENTY-FIVE PER CENT OF THE NATION'S FIRE INSURANCE
BUSINESS.  LOCAL AND STATE MUTUAL INSURANCE COMPANIES NOW WRITE ABOUT
TEN PER CENT OF THE TOTAL OF FIRE INSURANCE AND ARE STRONGEST IN
AGRICULTURAL DISTRICTS AND THE SMALLER CITIES; ANOTHER TEN PER CENT OF
THE TOTAL BUSINESS IS WRITTEN BY SO-CALLED FACTORY MUTUALS; THE BALANCE
IS CARED FOR BY LLOYD'S ASSOCIATIONS.  FN7 

THE PRINCIPLE OF ASSESSMENT UPON WHICH MUTUAL COMPANIES PROCEED IS
PRACTICAL ONLY FOR CARRYING RISKS CLOSELY UNIFORM IN KIND AND DEGREE,
ITS CHIEF ADVANTAGE BEING LOW OPERATING COST DUE TO SIMPLICITY OF
ORGANIZATION, AND IT IS SAID THAT THE SALES STAFFS OF SUCH COMPANIES
WORK EITHER "ON A SALARIED BASIS OR ON A LOWER SCALE OF COMMISSIONS
THAN DO THE REPRESENTATIVES OF STOCK COMPANIES."  FN8  THERE ARE
APPROXIMATELY TWENTY-FIVE HUNDRED MUTUAL FIRE AND CASUALTY INSTITUTIONS
OPERATING THROUGHOUT THE UNITED STATES, THE VAST MAJORITY OF WHICH
CONCENTRATE THEIR OPERATIONS LOCALLY WITHIN ONE OR MORE COUNTIES OR
WITHIN A SINGLE STATE.  "THESE COMPANIES RARELY COMPETE WITH AGENCY
REPRESENTED STOCK COMPANIES AND THERE HAS BEEN NO APPARENT INCLINATION
ON THEIR PART TO ALTER THE SCOPE OF ACTIVITY OR PLAN OF OPERATION.  OF
THE MANY MUTUAL FIRE INSURANCE COMPANIES PROBABLY NO MORE THAN TEN PER
CENT EXTEND THEIR FIELDS OF OPERATION BEYOND THE BOUNDARIES OF THEIR
HOME STATE."  FN9    REFERENCE TO THE REPORT OF THE INSURANCE
COMMISSIONER OF GEORGIA FOR 1934, THE YEAR PRECEDING THE ADOPTION OF
THE STATUTE UNDER REVIEW, FURNISHES INTERESTING DATA ON THE RELATIVE
BUSINESS OF STOCK AND MUTUAL INSURANCE COMPANIES IN THE STATE OF
GEORGIA.  FOR THAT YEAR THE TOTAL OF RISKS CARRIED BY STOCK FIRE
INSURANCE COMPANIES IN THE STATE WAS $1,512,181,296.  FOREIGN MUTUAL
FIRE INSURANCE COMPANIES CARRIED ONLY $82,727,816.  TWO DOMESTIC MUTUAL
COMPANIES DOING A STATE-WIDE BUSINESS CARRIED $73,370,177, AND FOURTEEN
SMALL LOCAL MUTUALS CARRIED $10,893,603.  THUS, MUTUAL COMPANIES
CARRIED ABOUT TEN PER CENT OF THE TOTAL FIRE INSURANCE BUSINESS OF THE
STATE AND, OF THAT TEN PER CENT, OVER ONE-HALF WAS WRITTEN BY GEORGIA
MUTUAL COMPANIES. 

WHILE GEORGIA DOES NOT EXCLUDE FOREIGN MUTUALS AND REQUIRES THEM,
LIKE FOREIGN STOCK COMPANIES, TO REGISTER AND COMPLY WITH CERTAIN
STATUTORY RULES IN ORDER TO WRITE BUSINESS WITHIN THE STATE, IT IS
EVIDENT THAT THE TOTAL MUTUAL BUSINESS WRITTEN IN GEORGIA IS OF MINOR
IMPORTANCE WHEN COMPARED WITH THE VAST AMOUNT WRITTEN BY STOCK
COMPANIES.  THIS FACT IN ITSELF MAY WELL BE A PERSUASIVE REASON FOR NOT
EXTENDING TO AGENTS OF MUTUAL COMPANIES THE REQUIREMENT THAT THEY SHALL
NOT WORK UPON A SALARY.  FN10  WHEN TO THIS IS ADDED THE FACT THAT
ORDINARILY SUCH AGENTS WORK ON SALARY BECAUSE, IN EFFECT, THEY ARE THE
AGENTS OF THE POLICY-HOLDERS RATHER THAN OF INDEPENDENT OWNERS OF A
STOCK CORPORATION, IT IS PLAIN THAT THERE IS REASON FOR CLASSIFYING
THEM DIFFERENTLY FROM AGENTS OF STOCK COMPANIES.  IN THE LIGHT OF THE
FACTS THE CLASSIFICATION OF THE AGENTS OF THE TWO SORTS OF COMPANY
CANNOT BE SAID TO BE ARBITRARY OR UNREASONABLE, AND SO TO DENY THE
AGENTS OF THE STOCK COMPANIES THE EQUAL PROTECTION OF THE LAWS. 

FN1  ACT OF MARCH 28, 1935.  GEORGIA ACTS 1935, P. 140. 

FN2  LA TOURETTE V. MCMASTER, 248 U.S. 465. 

FN3  O'GORMAN & YOUNG V. HARTFORD INSURANCE CO., 282 U.S. 251, 257. 

FN4  O'GORMAN & YOUNG V. HARTFORD INSURANCE CO., SUPRA, 257-258;
BORDEN'S FARM PRODUCTS CO. V. BALDWIN, 293 U.S. 194, 208, 209. 

FN5  CARLTON V. SOUTHERN MUTUAL INSURANCE CO., 72 GA. 371. 

FN6  ENC.  OF THE SOCIAL SCIENCES, VOL. VI, 255; YALE READINGS IN
INSURANCE, PROPERTY, CHAPTER IV. 

FN7  ENC.  OF THE SOCIAL SCIENCES, VOL. VI, 258. 

FN8  ENC.  OF THE SOCIAL SCIENCES, VOL. VIII, P. 100. 

FN9  BEST'S INSURANCE NEWS, OCTOBER 1935, P. 314. 

FN10  COMPARE CITIZENS' TELEPHONE CO. V. FULLER, 229 U.S. 322. 

MR. JUSTICE BRANDEIS, MR. JUSTICE STONE, AND MR. JUSTICE CARDOZO
CONCUR IN THIS OPINION. 
..END :




















SENN V. TILE LAYERS UNION, 301 U.S. 468 


NO. 658.  ARGUED MARCH 31, APRIL 1, 1937.  - DECIDED MAY 24, 1937.  -
222 WIS. 383, 400 - 268 N.W. 270, 872, AFFIRMED. 


1.  THE QUESTIONS OF WHAT CONSTITUTES A "LABOR DISPUTE" WITHIN THE
MEANING OF WISCONSIN LABOR CODE, SEC. 103.62, AND WHAT ACTS DONE BY A
LABOR UNION ARE AMONG THOSE DECLARED LAWFUL BY SEC. 103.53, ARE
QUESTIONS OF STATE LAW.  P. 477. 

2.  IF THE END SOUGHT BY A LABOR UNION IS NOT FORBIDDEN BY THE
FEDERAL CONSTITUTION, THE STATE MAY AUTHORIZE THE UNION MEMBERS TO SEEK
TO ATTAIN IT BY COMBINING AS PICKETS.  P. 478. 

3.  IN ITS APPLICATION TO THIS CASE, WISCONSIN LABOR CODE, SEC.
103.53, MAKING LAWFUL THE GIVING OF PUBLICITY TO THE EXISTENCE AND
FACTS OF A LABOR DISPUTE BY PEACEFUL PICKETING IN THE STREET, WITHOUT
INTIMIDATION OR COERCION, FRAUD, VIOLENCE, BREACH OF THE PEACE, OR
THREAT THEREOF, IS CONSISTENT WITH THE FOURTEENTH AMENDMENT.  P. 480. 

4.  A CONTRACTOR WHO CARRIED ON A SMALL BUSINESS OF TILE SETTING,
PERFORMING HIS CONTRACTS PARTLY BY THE AID OF A FEW NON-UNION WORKMEN
BUT LARGELY BY THE LABOR OF HIS OWN HANDS WITH THE TOOLS OF HIS TRADE,
AND WHO, NOT HAVING SERVED AN APPRENTICESHIP, WAS INELIGIBLE TO BECOME
A MEMBER OF THE TILE LAYERS' UNION UNDER ITS RULES, WAS CALLED UPON BY
THE UNION TO UNIONIZE HIS SHOP AND WAS WILLING TO DO SO BUT FOR A
CLAUSE IN THE AGREEMENT PROFFERED TO HIM, (FOUND IMPORTANT FOR THE
PROTECTION OF UNION WORKMEN) WHICH WOULD PREVENT HIM AS A UNION
EMPLOYER FROM PARTICIPATING LONGER IN THE MANUAL LABOR.  UPON HIS
REFUSAL TO SIGN THE CONTRACT WITH THIS STIPULATION, THE UNION SENT TWO
MEN TO HIS HOME, WHICH WAS ALSO HIS PLACE OF BUSINESS, AND THERE THEY
PATROLLED BEFORE IT IN THE STREET CARRYING TWO BANNERS WITH
INSCRIPTIONS, ONE OF WHICH DECLARED THAT THE CONTRACTOR WAS "UNFAIR" TO
THE UNION, WHILE THE OTHER APPEALED TO ITS READERS TO LET THE UNION
INSTALL THEIR TILE WORK.  HELD THAT THE RIGHTS OF THE CONTRACTOR UNDER
THE FOURTEENTH AMENDMENT WERE NOT INFRINGED BY A STATE LAW AUTHORIZING
SUCH PICKETING.  P. 481. 

SENN V. TILE LAYERS PROTECTIVE UNION ET AL. 

APPEAL FROM THE SUPREME COURT OF WISCONSIN. 

APPEAL FROM A DECREE SUSTAINING THE DISMISSAL OF THE BILL IN A SUIT
AGAINST TWO LABOR UNIONS AND THEIR AGENTS TO RESTRAIN PICKETING, ETC. 

THE WISCONSIN LABOR CODE, IN SO FAR AS IT DENIES RELIEF AGAINST
PICKETING AND RELATED ACTIVITIES ENGAGED IN FOR THE PURPOSE OF
COMPELLING AN EMPLOYER TO GIVE UP HIS RIGHT TO WORK IN HIS OWN
BUSINESS, CONTRAVENES THE GUARANTY OF THE FOURTEENTH AMENDMENT AGAINST
DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS.  SUCH ACTIVITIES, WHEN
ENGAGED IN BY LABOR UNIONS REPRESENTING NONE OF THE EMPLOYER'S
EMPLOYEES, CANNOT BE RENDERED LAWFUL BY ANY STATUTE. 

THE STATUTE BEARS NO RELATION TO THE PUBLIC HEALTH OR TO THE SAFETY
OR GOOD ORDER OF THE PUBLIC.  SO FAR AS IT HAS ANY EFFECT ON SAFETY AND
GOOD ORDER, THE TENDENCY IS ADVERSE.  THE WELFARE SERVED IS NOT THAT OF
THE PUBLIC BUT THAT OF A PARTICULAR CLASS TO THE DETRIMENT OF OTHER
CLASSES. 

THE RIGHT OF A CITIZEN TO WORK IN A LAWFUL BUSINESS IN A LAWFUL
MANNER, THE RIGHT TO FOLLOW ANY OF THE ORDINARY CALLINGS OF LIFE, IS AN
INALIENABLE RIGHT.  A STATE LEGISLATURE CANNOT DEPRIVE CITIZENS OF THE
UNITED STATES OF THIS RIGHT, AND, A FORTIORI, IT CANNOT BE TAKEN AWAY
BY LABOR UNIONS UNDER COLOR OF A STATUTE.  IT IS THE BOUNDEN DUTY OF
COURTS TO PROTECT THIS RIGHT.  A MAN MAY NOT BARTER AWAY HIS LIFE OR
FREEDOM, NOR BE FORCED BY LABOR UNIONS TO RELINQUISH THEM.  TRUAX V.
CORRIGAN, 257 U.S. 312; BUTCHERS' UNION V. CRESCENT CITY LIVE STOCK
CO., 111 U.S. 746; HITCHMAN COAL & COKE CO. V. MITCHELL, 245 U.S. 229;
COPPAGE V. KANSAS, 236 U.S. 1; TRUAX V. RAICH, 239 U.S. 33; ADAIR V.
UNITED STATES, 208 U.S. 161. 

APPELLANT WAS DENIED A REMEDY AND WAS REFUSED INJUNCTIVE RELIEF
SOLELY ON THE GROUND THAT THE ACTS WHICH HE SOUGHT TO HAVE RESTRAINED
WERE ACTS CARRIED ON IN THE COURSE OF A "LABOR DISPUTE" WITHIN THE
MEANING OF THE WISCONSIN LABOR CODE.  APPELLANT, UNDER THE CONSTITUTION
OF WISCONSIN AND THE STATUTES PROMULGATED PURSUANT THERETO, BUT FOR THE
WISCONSIN LABOR CODE AS CONSTRUED BY THE SUPREME COURT OF WISCONSIN,
WOULD HAVE BEEN ACCORDED THE RELIEF THAT HE SOUGHT.  HE IS DENIED THAT
RELIEF BECAUSE OF THE FACT THAT APPELLEES HAPPEN TO BE LABOR UNIONS
HAVING IN THEIR MEMBERSHIP EMPLOYEES OF OTHERS IN THE SAME LINE OF
BUSINESS, AND BECAUSE HE HAPPENS TO BE AN EMPLOYER. 

HAD THE APPELLEES NOT BEEN LABOR UNIONS REPRESENTING WORKERS IN THE
INDUSTRY AND HAD APPELLANT NOT BEEN AN EMPLOYER, THE ACTIVITIES OF THE
APPELLEES WOULD HAVE BEEN RESTRAINED. 

NO DISPUTE WAS HERE INVOLVED CONCERNING WAGES, HOURS OR WORKING
CONDITIONS OF ANY OF APPELLANT'S EMPLOYEES.  THE SOLE DISPUTE WAS
CONCERNING THE APPELLANT'S RIGHT TO WORK IN HIS OWN BUSINESS WITH HIS
OWN HANDS. 

THE CLASSIFICATION ESTABLISHED BY THE LABOR CODE, WHEREBY RELIEF IS
DENIED AGAINST LABOR UNIONS WHICH WOULD BE GRANTED AGAINST OTHERS, AND
WHEREBY RELIEF IS DENIED TO AN EMPLOYER WHICH WOULD BE GRANTED TO AN
INDIVIDUAL EMPLOYING NO ONE, IS WHOLLY ARBITRARY, CAPRICIOUS AND
UNREASONABLE. 

NO CLASSIFICATIONS CAN REASONABLY BE MADE AND SUSTAINED WHICH WILL
GIVE ANY GROUP THE RIGHT TO PICKET, BOYCOTT AND MOLEST AN INDIVIDUAL
FOR THE PURPOSE OF FORCING HIM, AGAINST HIS WILL, TO AGREE NOT TO WORK
WITH HIS OWN HANDS IN HIS OWN BUSINESS.  NO STATUTE SANCTIONING SUCH
ACTIVITY FOR SUCH A PURPOSE, BY A GROUP NEITHER EMPLOYEES NOR FORMER
EMPLOYEES OF THE EMPLOYER AND NOT REPRESENTING ANY OF THEM, CAN BE
SUSTAINED UNDER ANY THEORY OF THE POLICE POWER.  TRUAX V. CORRIGAN, 257
U.S. 312; OPINION OF THE JUSTICES, 275 MASS. 580; OPINION OF THE
JUSTICES, 86 N.H. 597. 

EVEN IF THE DISPUTE CONCERNED WAGES, HOURS AND WORKING CONDITIONS OF
APPELLANT'S OWN EMPLOYEES, THE STATUTE, AS CONSTRUED, WOULD
NEVERTHELESS VIOLATE THE FOURTEENTH AMENDMENT IF IT DENIED RELIEF
AGAINST SUCH ACTIVITIES, UPON THE PART OF PERSONS WHO WERE NEITHER THE
APPELLANT'S EMPLOYEES NOR HIS FORMER EMPLOYEES, NOR THEIR
REPRESENTATIVES. 

AS TO THERE HAVING BEEN A "LABOR DISPUTE," SEE AMERICAN FURNITURE CO.
V. CHAUFFEURS, TEAMSTERS & HELPERS UNION, 222 WIS. 338; LAUF V. SKINNER
& CO., 82 F.(2D) 68; UNITED ELECTRIC COAL COS.  V. RICE, 80 F.(2D) 1;
SAFEWAY STORES, INC. V. RETAIL CLERK'S UNION, 184 WASH. 322; 218-220
MARKET STREET CORP. V. DELICATESSEN UNION, 118 N.J. EQ. 448. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER THE PROVISIONS OF THE
WISCONSIN LABOR CODE WHICH AUTHORIZE GIVING PUBLICITY TO LABOR
DISPUTES, DECLARE PEACEFUL PICKETING AND PATROLLING LAWFUL AND PROHIBIT
GRANTING OF AN INJUNCTION AGAINST SUCH CONDUCT, VIOLATE, AS HERE
CONSTRUED AND APPLIED, THE DUE PROCESS CLAUSE OR EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT. 

THE LABOR CODE OCCUPIES SECS. 103.51 TO 103.63 OF THE WISCONSIN
STATUTES, 1935(WIS.  LAWS, 1931, C. 376; LAWS, 1935, C. 551, SEC. 5). 
BUT ONLY THE FOLLOWING PROVISIONS OF SEC. 103.53 ARE DIRECTLY INVOLVED
ON THIS APPEAL: 

"(1)  THE FOLLOWING ACTS, WHETHER PERFORMED SINGLY OR IN CONCERT,
SHALL BE LEGAL: 

     .         .   .         .         . 

"(E)  GIVING PUBLICITY TO AND OBTAINING OR COMMUNICATING INFORMATION
REGARDING THE EXISTENCE OF, OR THE FACTS INVOLVED IN, ANY DISPUTE,
WHETHER BY ADVERTISING, SPEAKING, PATROLLING ANY PUBLIC STREET OR PLACE
WHERE ANY PERSON OR PERSONS MAY LAWFULLY BE, WITHOUT INTIMIDATION OR
COERCION, OR BY ANY OTHER METHOD NOT INVOLVING FRAUD, VIOLENCE, BREACH
OF THE PEACE, OR THREAT THEREOF." 

     .         . .         .         . 

"(1)  PEACEFUL PICKETING OR PATROLLING, WHETHER ENGAGED IN SINGLY OR
IN NUMBERS, SHALL BE LEGAL.  FN1 

"(2)  NO COURT, NOR ANY JUDGE OR JUDGES THEREOF, SHALL HAVE
JURISDICTION TO ISSUE ANY RESTRAINING ORDER OR TEMPORARY OR PERMANENT
INJUNCTION WHICH, IN SPECIFIC OR GENERAL TERMS, PROHIBITS ANY PERSON OR
PERSONS FROM DOING, WHETHER SINGLY OR IN CONCERT, ANY OF THE FOREGOING
ACTS." 

ON DECEMBER 28, 1935, SENN BROUGHT THIS SUIT IN THE CIRCUIT COURT OF
MILWAUKEE COUNTY, AGAINST TILE LAYERS PROTECTIVE UNION, LOCAL NO. 5,
TILE LAYERS HELPERS UNION, LOCAL NO. 47, AND THEIR BUSINESS AGENTS,
SEEKING AN INJUNCTION TO RESTRAIN PICKETING, AND PARTICULARLY
"PUBLISHING, STATING OR PROCLAIMING THAT THE PLAINTIFF IS UNFAIR TO
ORGANIZED LABOR OR TO THE DEFENDANT UNIONS"; AND ALSO TO RESTRAIN SOME
OTHER ACTS WHICH HAVE SINCE BEEN DISCONTINUED, AND ARE NOT NOW
MATERIAL.  THE DEFENDANTS ANSWERED; AND THE CASE WAS HEARD UPON
EXTENSIVE EVIDENCE.  THE TRIAL COURT FOUND THE FOLLOWING FACTS. 

THE JOURNEYMEN TILE LAYERS AT MILWAUKEE WERE, TO A LARGE EXTENT,
MEMBERS OF TILE LAYERS PROTECTIVE UNION, LOCAL NO. 5, AND THE HELPERS,
MEMBERS OF TILE LAYERS HELPERS UNION, LOCAL NO. 47.  SENN WAS ENGAGED
AT MILWAUKEE IN THE TILE CONTRACTING BUSINESS UNDER THE NAME OF "PAUL
SENN & CO., TILE CONTRACTING."  HIS BUSINESS WAS A SMALL ONE,
CONDUCTED, IN THE MAIN, FROM HIS RESIDENCE, WITH A SHOWROOM ELSEWHERE. 
HE EMPLOYED ONE OR TWO JOURNEYMEN TILE LAYERS AND ONE OR TWO HELPERS,
DEPENDING UPON THE AMOUNT OF WORK HE HAD CONTRACTED TO DO AT THE TIME. 
BUT, WORKING WITH HIS OWN HANDS WITH TOOLS OF THE TRADE, HE PERFORMED
PERSONALLY ON THE JOBS MUCH WORK OF A CHARACTER COMMONLY DONE BY A TILE
LAYER OR A HELPER.  NEITHER SENN, NOR ANY OF HIS EMPLOYEES, WAS AT THE
TIME THIS SUIT WAS BEGUN A MEMBER OF EITHER UNION, AND NEITHER HAD ANY
CONTRACTUAL RELATIONS WITH THEM.  INDEED, SENN COULD NOT BECOME A
MEMBER OF THE TILE LAYERS UNION, SINCE ITS CONSTITUTION AND RULES
REQUIRE, AMONG OTHER THINGS, THAT A JOURNEYMAN TILE SETTER SHALL HAVE
ACQUIRED HIS PRACTICAL EXPERIENCE THROUGH AN APPRENTICESHIP OF NOT LESS
THAN THREE YEARS, AND SENN HAD NOT SERVED SUCH AN APPRENTICESHIP. 

FOR SOME YEARS THE TILE LAYING INDUSTRY HAD BEEN IN A DEMORALIZED
STATE BECAUSE OF LACK OF BUILDING OPERATIONS; AND MEMBERS OF THE UNION
HAD BEEN IN COMPETITION WITH NON-UNION TILE LAYERS AND HELPERS IN THEIR
EFFORT TO SECURE WORK.  THE TILE CONTRACTORS BY WHOM MEMBERS OF THE
UNIONS WERE EMPLOYED HAD ENTERED INTO COLLECTIVE BARGAINING AGREEMENTS
WITH THE UNIONS GOVERNING WAGES, HOURS AND WORKING CONDITIONS.  THE
WAGES PAID BY THE UNION CONTRACTORS HAD FOR SOME TIME BEEN HIGHER THAN
THOSE PAID BY SENN TO HIS EMPLOYEES. 

BECAUSE OF THE PECULIAR COMPOSITION OF THE INDUSTRY, WHICH CONSISTS
OF EMPLOYERS WITH SMALL NUMBERS OF EMPLOYEES, THE UNIONS HAD FOUND IT
NECESSARY FOR THE PROTECTION OF THE INDIVIDUAL RIGHTS OF THEIR MEMBERS
IN THE PROSECUTION OF THEIR TRADE TO REQUIRE ALL EMPLOYERS AGREEING TO
CONDUCT A UNION SHOP TO ASSENT TO THE FOLLOWING PROVISION: 

"ARTICLE III.  IT IS DEFINITELY UNDERSTOOD THAT NO INDIVIDUAL, MEMBER
OF A PARTNERSHIP OR CORPORATION ENGAGED IN THE TILE CONTRACTING
BUSINESS SHALL WORK WITH THE TOOLS OR ACT AS HELPER BUT THAT THE
INSTALLATION OF ALL MATERIALS CLAIMED BY THE PARTY OF THE SECOND PART
AS LISTED UNDER THE CAPTION 'CLASSIFICATION OF WORK' IN THIS AGREEMENT,
SHALL BE DONE BY JOURNEYMEN MEMBERS OF TILE LAYERS PROTECTIVE UNION
LOCAL #5." 

THE UNIONS ENDEAVORED TO INDUCE SENN TO BECOME A UNION CONTRACTOR;
AND REQUESTED HIM TO EXECUTE AN AGREEMENT IN FORM SUBSTANTIALLY
IDENTICAL WITH THAT ENTERED INTO BY THE MILWAUKEE CONTRACTORS WHO
EMPLOY UNION MEN.  SENN EXPRESSED A WILLINGNESS TO EXECUTE THE
AGREEMENT PROVIDED ARTICLE III WAS ELIMINATED.  THE UNION DECLARED THAT
THIS WAS IMPOSSIBLE; THAT THE INCLUSION OF THE PROVISION WAS ESSENTIAL
TO THE UNIONS' INTEREST IN MAINTAINING WAGE STANDARDS AND SPREADING
WORK AMONG THEIR MEMBERS; AND, MOREOVER, THAT TO ELIMINATE ARTICLE III
FROM THE CONTRACT WITH SENN WOULD DISCRIMINATE AGAINST EXISTING UNION
CONTRACTORS, ALL OF WHOM HAD SIGNED AGREEMENTS CONTAINING THE ARTICLE. 
AS THE UNIONS DECLARED ITS ELIMINATION IMPOSSIBLE, SENN REFUSED TO SIGN
THE AGREEMENT AND UNIONIZE HIS SHOP.  BECAUSE OF HIS REFUSAL, THE
UNIONS PICKETED HIS PLACE OF BUSINESS.  THE PICKETING WAS PEACEFUL,
WITHOUT VIOLENCE, AND WITHOUT ANY UNLAWFUL ACT.  THE EVIDENCE WAS THAT
THE PICKETS CARRIED ONE BANNER WITH THE INSCRIPTION "P. SENN TILE
COMPANY IS UNFAIR TO THE TILE LAYERS PROTECTIVE UNION," ANOTHER WITH
THE INSCRIPTION "LET THE UNION TILE LAYER INSTALL YOUR TILE WORK." 
FN2 

THE TRIAL COURT DENIED THE INJUNCTION AND DISMISSED THE BILL.  ON THE
FINDINGS MADE, IT RULED THAT THE CONTROVERSY WAS "A LABOR DISPUTE"
WITHIN THE MEANING OF SEC. 103.62; THAT THE PICKETING, DONE SOLELY IN
FURTHERANCE OF THE DISPUTE, WAS "LAWFUL" UNDER SEC. 103.53; THAT IT WAS
NOT UNLAWFUL FOR THE DEFENDANTS 

"TO ADVISE, NOTIFY OR PERSUADE, WITHOUT FRAUD, VIOLENCE OR THREAT
THEREOF, ANY PERSON OR PERSONS, OF THE EXISTENCE OF SAID LABOR
DISPUTE;... 

"THAT THE AGREEMENT SUBMITTED BY THE DEFENDANTS TO THE PLAINTIFF,
SETTING FORTH TERMS AND CONDITIONS PREVAILING IN THAT PORTION OF THE
INDUSTRY WHICH IS UNIONIZED, IS SOUGHT BY THE DEFENDANTS FOR THE
PURPOSE OF PROMOTING THEIR WELFARE AND ENHANCING THEIR OWN INTERESTS IN
THEIR TRADE AND CRAFT AS WORKERS IN THE INDUSTRY. 

"THAT ARTICLE III OF SAID AGREEMENT IS A REASONABLE AND LAWFUL RULE
ADOPTED BY THE DEFENDANTS OUT OF THE NECESSITIES OF EMPLOYMENT WITHIN
THE INDUSTRY AND FOR THE PROTECTION OF THEMSELVES AS WORKERS AND
CRAFTSMEN IN THE INDUSTRY." 

SENN APPEALED TO THE SUPREME COURT OF THE STATE, WHICH AFFIRMED THE
JUDGMENT OF THE TRIAL COURT AND DENIED A MOTION FOR REHEARING, TWO
JUDGES DISSENTING.  (222 WIS. 383, 400; 268 N.W. 270, 872.)  THE CASE
IS HERE ON APPEAL. 

FIRST. THE DEFENDANTS MOVED TO DISMISS THE APPEAL FOR WANT OF
JURISDICTION.  THEY CONTEND THAT THE FEDERAL QUESTION PRESENTED IS NOT
SUBSTANTIAL.  AND FRIENDS OF THE COURT SUGGEST THAT THE APPEAL SHOULD
BE DISMISSED BECAUSE THE DECISION BELOW WAS BASED UPON NON-FEDERAL
GROUNDS, OR THAT THERE WAS AN ALTERNATIVE, INDEPENDENT NON-FEDERAL
GROUND BROAD ENOUGH TO SUSTAIN THE JUDGMENT; THAT THE CHALLENGE HERE IS
NOT TO A STATUTE, BUT TO A JUDICIAL DECISION BASED UPON PRINCIPLES OF
GENERAL LAW WHICH HAVE BEEN APPROVED BY SOME JUDGES AND DISAPPROVED BY
OTHERS; FN3  AND THAT THERE IS NOTHING TO SHOW THAT THE PROVISIONS OF
THE WISCONSIN LABOR CODE HERE QUESTIONED ARE NOT MERELY DECLARATORY OF
THE COMMON LAW OF WISCONSIN AS IT EXISTED PRIOR TO THE STATUTE.  BUT IT
SUFFICIENTLY APPEARS THAT THE PROVISIONS OF THE LABOR CODE WERE RELIED
UPON; THAT THEIR VALIDITY UNDER THE FOURTEENTH AMENDMENT WAS DULY
CHALLENGED BELOW; AND THAT THE RULINGS BY THE STATE COURTS WERE BASED
ULTIMATELY ON THE LABOR CODE.  WHETHER THE STATUTE AS CONSTRUED AND
APPLIED VIOLATES THE FOURTEENTH AMENDMENT PRESENTS ISSUES NEVER
EXPRESSLY PASSED UPON BY THIS COURT.  WE DENY THE MOTION TO DISMISS. 

SECOND.  THE HEARINGS BELOW WERE CONCERNED MAINLY WITH QUESTIONS OF
STATE LAW.  SENN INSISTED THERE THAT THE STATUTE WAS NO DEFENSE,
BECAUSE THE CONTROVERSY WAS NOT A "LABOR DISPUTE" WITHIN THE MEANING OF
SEC. 103.62.  FN4  THE COURTS RULED THAT THE CONTROVERSY WAS A "LABOR
DISPUTE"; AND THAT THE ACTS DONE BY THE DEFENDANT WERE AMONG THOSE
DECLARED "LAWFUL" BY SEC. 103.53.  SEE ALSO AMERICAN FURNITURE CO. V.
CHAUFFEURS, TEAMSTERS & HELPERS UNION, 228 WIS. 338; 268 N.W. 250. 
THOSE ISSUES INVOLVED THE CONSTRUCTION AND APPLICATION OF THE STATUTE
AND THE CONSTITUTION OF THE STATE.  AS TO THEM THE JUDGMENT OF ITS
HIGHEST COURT IS CONCLUSIVE.  THE QUESTION FOR OUR DECISION IS WHETHER
THE STATUTE, AS APPLIED TO THE FACTS FOUND, TOOK SENN'S LIBERTY OR
PROPERTY OR DENIED HIM EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE
FOURTEENTH AMENDMENT.  SENN DOES NOT CLAIM BROADLY THAT THE FEDERAL
CONSTITUTION PROHIBITS A STATE FROM AUTHORIZING PUBLICITY AND PEACEFUL
PICKETING.  HIS CLAIM OF INVALIDITY IS RESTED ON THE FACT THAT HE
REFUSED TO UNIONIZE HIS SHOP SOLELY BECAUSE THE UNION INSISTED UPON THE
RETENTION OF ARTICLE III.  HE CONTENDS THAT THE RIGHT TO WORK IN HIS
BUSINESS WITH HIS OWN HANDS IS A RIGHT GUARANTEED BY THE FOURTEENTH
AMENDMENT AND THAT THE STATE MAY NOT AUTHORIZE UNIONS TO EMPLOY
PUBLICITY AND PICKETING TO INDUCE HIM TO REFRAIN FROM EXERCISING IT. 

THE UNIONS CONCEDE THAT SENN, SO LONG AS HE CONDUCTS A NONUNION SHOP,
HAS THE RIGHT TO WORK WITH HIS HANDS AND TOOLS.  HE MAY DO SO, AS
FREELY AS HE MAY WORK HIS EMPLOYEES LONGER HOURS AND AT LOWER WAGES
THAN THE UNION RULES PERMIT.  HE MAY BID FOR CONTRACTS AT A LOW FIGURE
BASED UPON LOW WAGES AND LONG HOURS.  BUT THE UNIONS CONTEND THAT,
SINCE SENN'S EXERCISE OF THE RIGHT TO DO SO IS HARMFUL TO THE INTERESTS
OF THEIR MEMBERS, THEY MAY SEEK BY LEGAL MEANS TO INDUCE HIM TO AGREE
TO UNIONIZE HIS SHOP AND TO REFRAIN FROM EXERCISING HIS RIGHT TO WORK
WITH HIS OWN HANDS.  THE JUDGMENT OF THE HIGHEST COURT OF THE STATE
ESTABLISHES THAT BOTH THE MEANS EMPLOYED AND THE END SOUGHT BY THE
UNIONS ARE LEGAL UNDER ITS LAW.  THE QUESTION FOR OUR DETERMINATION IS
WHETHER EITHER THE MEANS OR THE END SOUGHT IS FORBIDDEN BY THE FEDERAL
CONSTITUTION. 

THIRD.  CLEARLY THE MEANS WHICH THE STATUTE AUTHORIZES - PICKETING
AND PUBLICITY - ARE NOT PROHIBITED BY THE FOURTEENTH AMENDMENT. 
MEMBERS OF A UNION MIGHT, WITHOUT SPECIAL STATUTORY AUTHORIZATION BY A
STATE, MAKE KNOWN THE FACTS OF A LABOR DISPUTE, FOR FREEDOM OF SPEECH
IS GUARANTEED BY THE FEDERAL CONSTITUTION.  THE STATE MAY, IN THE
EXERCISE OF ITS POLICE POWER, REGULATE THE METHODS AND MEANS OF
PUBLICITY AS WELL AS THE USE OF PUBLIC STREETS.  IF THE END SOUGHT BY
THE UNIONS IS NOT FORBIDDEN BY THE FEDERAL CONSTITUTION THE STATE MAY
AUTHORIZE WORKING MEN TO SEEK TO ATTAIN IT BY COMBINING AS PICKETS,
JUST AS IT PERMITS CAPITALISTS AND EMPLOYERS TO COMBINE IN OTHER WAYS
TO ATTAIN THEIR DESIRED ECONOMIC ENDS.  THE LEGISLATURE OF WISCONSIN
HAS DECLARED THAT "PEACEFUL PICKETING AND PATROLLING" ON THE PUBLIC
STREETS AND PLACES SHALL BE PERMISSIBLE "WHETHER ENGAGED IN SINGLY OR
IN NUMBERS" PROVIDED THIS IS DONE "WITHOUT INTIMIDATION OR COERCION"
AND FREE FROM "FRAUD, VIOLENCE, BREACH OF THE PEACE OR THREAT
THEREOF."  THE STATUTE PROVIDES THAT THE PICKETING MUST BE PEACEFUL;
AND THAT TERM AS USED IMPLIES NOT ONLY ABSENCE OF VIOLENCE BUT ABSENCE
OF ANY UNLAWFUL ACT.  IT PRECLUDES THE INTIMIDATION OF CUSTOMERS.  IT
PRECLUDES ANY FORM OF PHYSICAL OBSTRUCTION OR INTERFERENCE WITH THE
PLAINTIFF'S BUSINESS.  IT AUTHORIZES GIVING PUBLICITY TO THE EXISTENCE
OF THE DISPUTE "WHETHER BY ADVERTISING, PATROLLING ANY PUBLIC STREETS
OR PLACES WHERE ANY PERSON OR PERSONS MAY LAWFULLY BE"; BUT PRECLUDES
MISREPRESENTATION OF THE FACTS OF THE CONTROVERSY.  AND IT DECLARES
THAT "NOTHING HEREIN SHALL BE CONSTRUED TO LEGALIZE A SECONDARY
BOYCOTT."  SEE DUPLEX PRINTING CO. V. DEERING, 254 U.S. 443, 466. 
INHERENTLY, THE MEANS AUTHORIZED ARE CLEARLY UNOBJECTIONABLE.  IN
DECLARING SUCH PICKETING PERMISSIBLE WISCONSIN HAS PUT THIS MEANS OF
PUBLICITY ON A PAR WITH ADVERTISEMENTS IN THE PRESS. 

THE STATE COURTS FOUND THAT THE UNIONS OBSERVED THE LIMITATIONS
PRESCRIBED BY THE STATUTE.  THE CONDUCT COMPLAINED OF IS PATROL WITH
BANNERS BY TWO OR FOUR PICKETS.  COMPARE AMERICAN STEEL FOUNDRIES V.
TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S. 184, 207.  THE PICKETING WAS
PEACEFUL.  THE PUBLICITY DID NOT INVOLVE A MISREPRESENTATION OF FACT;
NOR WAS ANY CLAIM MADE BELOW THAT RELEVANT FACTS WERE SUPPRESSED.  SENN
DID NOT CONTEND THAT IT WAS UNTRUTHFUL TO CHARACTERIZE HIM AS "UNFAIR,"
IF THE REQUIREMENT THAT HE REFRAIN FROM WORKING WITH HIS OWN HANDS WAS
A LAWFUL ONE.  HE DID NOT ASK THAT THE BANNERS BE REQUIRED TO CARRY A
FULLER STATEMENT OF THE FACTS.  COMPARE AMERICAN FURNITURE CO. V.
CHAUFFEURS, TEAMSTERS & HELPERS UNION, 222 WIS. 338, 340, 347; 268 N.W.
250, 251, 255.  MOREOVER, IT WAS CONFESSEDLY OPEN TO SENN TO DISCLOSE
THE FACTS IN SUCH MANNER AND IN SUCH DETAIL AS HE DEEMED DESIRABLE, AND
ON THE STRENGTH OF THE FACTS TO SEEK THE PATRONAGE OF THE PUBLIC. 

TRUAX V. CORRIGAN, 257 U.S. 312, IS NOT APPLICABLE.  THE STATUTE
THERE IN QUESTION WAS DEEMED TO HAVE BEEN APPLIED TO LEGALIZE CONDUCT
WHICH WAS NOT SIMPLY PEACEFUL PICKETING, NOT "LAWFUL PERSUASION OR
INDUCING," NOT "A MERE APPEAL TO THE SYMPATHETIC AID OF WOULD-BE
CUSTOMERS BY A SIMPLE STATEMENT OF THE FACT OF THE STRIKE AND A REQUEST
TO WITHHOLD PATRONAGE."  IT CONSISTED OF LIBELOUS ATTACKS AND ABUSIVE
EPITHETS AGAINST THE EMPLOYER AND HIS FRIENDS; LIBELOUS AND DISPARAGING
STATEMENTS AGAINST THE PLAINTIFF'S BUSINESS; THREATS AND INTIMIDATION
DIRECTED AGAINST CUSTOMERS AND EMPLOYEES.  THE MEANS EMPLOYED, IN OTHER
WORDS, WERE DEEMED TO CONSTITUTE "AN ADMITTED TORT," CONDUCT UNLAWFUL
PRIOR TO THE STATUTE CHALLENGED.  SEE PP. 327-8, 337, 346.  IN THE
PRESENT CASE THE ONLY MEANS AUTHORIZED BY THE STATUTE AND IN FACT
RESORTED TO BY THE UNIONS HAVE BEEN PEACEFUL AND ACCOMPANIED BY NO
UNLAWFUL ACT.  IT FOLLOWS, THAT IF THE END SOUGHT IS CONSTITUTIONAL -
IF THE UNIONS MAY CONSTITUTIONALLY INDUCE SENN TO AGREE TO REFRAIN FROM
EXERCISING THE RIGHT TO WORK IN HIS BUSINESS WITH HIS OWN HANDS, THEIR
ACTS WERE LAWFUL. 

FOURTH.  THE END SOUGHT BY THE UNIONS IS NOT UNCONSTITUTIONAL. 
ARTICLE III, WHICH THE UNIONS SEEK TO HAVE SENN ACCEPT, WAS FOUND BY
THE STATE COURTS TO BE NOT ARBITRARY OR CAPRICIOUS, BUT A REASONABLE
RULE "ADOPTED BY THE DEFENDANTS OUT OF THE NECESSITIES OF EMPLOYMENT
WITHIN THE INDUSTRY AND FOR THE PROTECTION OF THEMSELVES AS WORKERS AND
CRAFTSMEN IN THE INDUSTRY."  THAT FINDING IS AMPLY SUPPORTED BY THE
EVIDENCE.  THERE IS NO BASIS FOR A SUGGESTION THAT THE UNIONS' REQUEST
THAT SENN REFRAIN FROM WORKING WITH HIS OWN HANDS, OR THEIR EMPLOYMENT
OF PICKETING AND PUBLICITY, WAS MALICIOUS; OR THAT THERE WAS A DESIRE
TO INJURE SENN.  THE SOLE PURPOSE OF THE PICKETING WAS TO ACQUAINT THE
PUBLIC WITH THE FACTS AND, BY GAINING ITS SUPPORT, TO INDUCE SENN TO
UNIONIZE HIS SHOP.  THERE WAS NO EFFORT TO INDUCE SENN TO DO AN
UNLAWFUL THING.  THERE WAS NO VIOLENCE, NO FORCE WAS APPLIED, NO
MOLESTATION OR INTERFERENCE, NO COERCION.  THERE WAS ONLY THE
PERSUASION INCIDENT TO PUBLICITY.  AS THE SUPREME COURT OF WISCONSIN
SAID: 

"EACH OF THE CONTESTANTS IS DESIROUS OF THE ADVANTAGE OF DOING
BUSINESS IN THE COMMUNITY WHERE HE OR THEY OPERATE.  HE IS NOT
OBLIGATED TO YIELD TO THE PERSUASION EXERCISED UPON HIM BY
RESPONDENTS....  THE RESPONDENTS DO NOT QUESTION THAT IT IS APPELLANTS'
RIGHT TO OWN HIS OWN BUSINESS AND EARN HIS LIVING IN ANY LAWFUL MANNER
WHICH HE CHOOSES TO ADOPT.  WHAT THEY ARE DOING IS ASSERTING THEIR
RIGHTS UNDER THE ACTS OF THE LEGISLATURE FOR THE PURPOSE OF ENHANCING
THEIR OPPORTUNITY TO ACQUIRE WORK FOR THEMSELVES AND THOSE WHOM THEY
REPRESENT....  THE RESPONDENTS' ACT OF PEACEFUL PICKETING IS A LAWFUL
FORM OF APPEAL TO THE PUBLIC TO TURN ITS PATRONAGE FROM APPELLANT TO
THE CONCERNS IN WHICH THE WELFARE OF THE MEMBERS OF THE UNIONS IS BOUND
UP." 

THE UNIONS ACTED, AND HAD THE RIGHT TO ACT AS THEY DID, TO PROTECT
THE INTERESTS OF THEIR MEMBERS AGAINST THE HARMFUL EFFECT UPON THEM OF
SENN'S ACTION.  COMPARE AMERICAN STEEL FOUNDRIES V. TRI-CITY CENTRAL
TRADES COUNCIL, SUPRA, 208, 209.  BECAUSE HIS ACTION WAS HARMFUL, THE
FACT THAT NONE OF SENN'S EMPLOYEES WAS A UNION MEMBER, OR SOUGHT THE
UNION'S AID, IS IMMATERIAL. 

THE LAWS OF WISCONSIN, AS DECLARED BY ITS HIGHEST COURT, PERMITS
UNIONS TO ENDEAVOR TO INDUCE AN EMPLOYER, WHEN UNIONIZING HIS SHOP, TO
AGREE TO REFRAIN FROM WORKING IN HIS BUSINESS WITH HIS OWN HANDS - SO
TO ENDEAVOR ALTHOUGH NONE OF HIS EMPLOYEES IS A MEMBER OF A UNION. 
WHETHER IT WAS WISE FOR THE STATE TO PERMIT THE UNIONS TO DO SO IS A
QUESTION OF ITS PUBLIC POLICY - NOT OUR CONCERN.  THE FOURTEENTH
AMENDMENT DOES NOT PROHIBIT IT. 

FIFTH.  THERE IS NOTHING IN THE FEDERAL CONSTITUTION WHICH FORBIDS
UNIONS FROM COMPETING WITH NON-UNION CONCERNS FOR CUSTOMERS BY MEANS OF
PICKETING AS FREELY AS ONE MERCHANT COMPETES WITH ANOTHER BY MEANS OF
ADVERTISEMENTS IN THE PRESS, BY CIRCULARS, OR BY HIS WINDOW DISPLAY. 
EACH MEMBER OF THE UNIONS, AS WELL AS SENN, HAS THE RIGHT TO STRIVE TO
EARN HIS LIVING.  SENN SEEKS TO DO SO THROUGH EXERCISE OF HIS
INDIVIDUAL SKILL AND PLANNING.  THE UNION MEMBERS SEEK TO DO SO THROUGH
COMBINATION.  EARNING A LIVING IS DEPENDENT UPON SECURING WORK; AND
SECURING WORK IS DEPENDENT UPON PUBLIC FAVOR.  TO WIN THE PATRONAGE OF
THE PUBLIC EACH MAY STRIVE BY LEGAL MEANS.  EXERCISING ITS POLICE
POWER, WISCONSIN HAS DECLARED THAT IN A LABOR DISPUTE PEACEFUL
PICKETING AND TRUTHFUL PUBLICITY ARE MEANS LEGAL FOR UNIONS.  IT IS
TRUE THAT DISCLOSURE OF THE FACTS OF THE LABOR DISPUTE MAY BE ANNOYING
TO SENN EVEN IF THE METHOD AND MEANS EMPLOYED IN GIVING THE PUBLICITY
ARE INHERENTLY UNOBJECTIONABLE.  BUT SUCH ANNOYANCE, LIKE THAT OFTEN
SUFFERED FROM PUBLICITY IN OTHER CONNECTIONS, IS NOT AN INVASION OF THE
LIBERTY GUARANTEED BY THE CONSTITUTION.  COMPARE PENNSYLVANIA RAILROAD
CO. V. UNITED STATES RAILROAD LABOR BOARD, 261 U.S. 72.  FN5  IT IS
TRUE, ALSO, THAT DISCLOSURE OF THE FACTS MAY PREVENT SENN FROM SECURING
JOBS WHICH HE HOPED TO GET.  BUT A HOPED-FOR JOB IS NOT PROPERTY
GUARANTEED BY THE CONSTITUTION.  AND THE DIVERSION OF IT TO A
COMPETITOR IS NOT AN INVASION OF A CONSTITUTIONAL RIGHT. 

SIXTH.  IT IS CONTENDED THAT IN PROHIBITING AN INJUNCTION THE STATUTE
DENIED TO SENN EQUAL PROTECTION OF THE LAWS, AND TRUAX V. CORRIGAN,
SUPRA, IS INVOKED.  BUT THE ISSUE SUGGESTED BY PLAINTIFF DOES NOT
ARISE.  FOR WE HOLD THAT THE PROVISIONS OF THE WISCONSIN STATUTE WHICH
AUTHORIZED THE CONDUCT OF THE UNIONS ARE CONSTITUTIONAL.  ONE HAS NO
CONSTITUTIONAL RIGHT TO A "REMEDY" AGAINST THE LAWFUL CONDUCT OF
ANOTHER.  AFFIRMED. 

FN1  SUBSECTIONS (H), (I) AND (K) ARE LIKEWISE RELEVANT TO THE
PRESENT ISSUE, AS SUPPLEMENTING SUBSECTIONS (E) AND (L), BUT DO NOT
REQUIRE SPECIAL DISCUSSION. 

FN2  THE COMPLAINT AS TO CERTAIN ACTION OF DEFENDANTS OTHER THAN THE
PICKETING WAS DISPOSED OF BY DEFENDANTS' AGREEMENT TO DISCONTINUE THE
SAME, AND IS NOT NOW IN QUESTION.  IT HAD BEEN SHOWN THAT, WITH A VIEW
TO PICKETING SENN'S JOBS, THE UNIONS HAD CAUSED HIS AUTOMOBILE TO BE
FOLLOWED FROM HIS PLACE OF BUSINESS TO THE JOBS WHERE HE AND HIS MEN
WERE WORKING.  IT HAD ALSO BEEN SHOWN THAT, SOME MONTHS EARLIER, THE
UNIONS HAD SENT LETTERS TO LOCAL ARCHITECTS AND CONTRACTORS REQUESTING
THEM NOT TO PATRONIZE SENN BECAUSE HE WAS CONDUCTING A NON-UNION SHOP
AND THREATENING TO PICKET THEM IF THEY DID SO; BUT THAT THERE HAD BEEN
NO PICKETING OF ANY ARCHITECT OR CONTRACTOR AND NO SUCH STEPS HAD BEEN
TAKEN BY THE UNIONS.  THROUGH COUNSEL, THE UNIONS AGREED:  (1) THAT
THEREAFTER THEY WOULD NOT PURSUE PLAINTIFF'S AUTOMOBILE FROM HIS
RESIDENCE TO HIS JOBS; AND (2) THAT THEY WOULD REFRAIN FROM SENDING ANY
FURTHER LETTERS TO ARCHITECTS OR CONTRACTORS, AND WOULD NOT INDULGE IN
ANY ACTS OR CONDUCT REFERRED TO IN THE LETTERS THERETOFORE SENT.  THE
COURT TREATED THIS AGREEMENT BY COUNSEL AS DISPOSING OF THE CLAIM FOR
RELIEF ON THIS GROUND. 

FN3  COMPARE ZAAT V. BUILDING TRADES COUNCIL, 172 WASH. 445; 20
P.(2D) 589; RORABACK V. MOTION PICTURE OPERATORS UNION, 140 MINN. 481;
168 N.W. 766; HUGHES V. MOTION PICTURE OPERATORS UNION, 282 MO. 304;
221 S.W. 95; FINK V. SCHWARTZ, 28 OHIO (N.P.)  407.  SEE THOMPSON V.
BOEKHOUT, 249 APP. DIV. 77; 291 N.Y. SUPP. 572. 

FN4  THAT SECTION PROVIDES: 

"THE TERM 'LABOR DISPUTE' INCLUDES ANY CONTROVERSY CONCERNING TERMS
OR CONDITIONS OF EMPLOYMENT, OR CONCERNING THE ASSOCIATION OR
REPRESENTATION OF PERSONS IN NEGOTIATING, FIXING, MAINTAINING,
CHANGING, OR SEEKING TO ARRANGE TERMS OR CONDITIONS OF EMPLOYMENT, OR
CONCERNING EMPLOYMENT RELATIONS, OR ANY OTHER CONTROVERSY ARISING OUT
OF THE RESPECTIVE INTERESTS OF EMPLOYER AND EMPLOYE, REGARDLESS OF
WHETHER OR NOT THE DISPUTANTS STAND IN THE PROXIMATE RELATION OF
EMPLOYER AND EMPLOYE." 

FN5  THE STATE HAS, OF COURSE, POWER TO AFFORD PROTECTION TO
INTERESTS OF PERSONALITY, SUCH AS "THE RIGHT OF PRIVACY."  THE
PROTECTION BY DECISION OR STATUTE OF SUCH INTERESTS OF PERSONALITY,
RESTS ON OTHER CONSIDERATIONS THAN ARE HERE INVOLVED.  SEE MORELAND,
THE RIGHT OF PRIVACY TODAY (1931) 19 KY. L.J. 101; LISLE, THE RIGHT OF
PRIVACY, ID., 137; GREEN, THE RIGHT OF PRIVACY (1932) 27 ILL. L. REV.
237, 238. 

MR. JUSTICE BUTLER, DISSENTING. 

PLAINTIFF IS A TILE LAYER AND HAS LONG BEEN ACCUSTOMED TO WORK AS A
HELPER AND MECHANIC IN THAT TRADE.  THE QUESTION PRESENTED IS WHETHER,
CONSISTENTLY WITH THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT, THE STATE MAY BY STATUTE AUTHORIZE OR MAKE IT
LAWFUL FOR LABOR UNIONS TO ADOPT AND CARRY INTO EFFECT MEASURES
INTENDED AND CALCULATED TO PREVENT HIM FROM OBTAINING OR DOING THAT
WORK.  THE DECISION JUST ANNOUNCED ANSWERS THAT QUESTION IN THE
AFFIRMATIVE.  THE FACTS ARE NOT IN CONTROVERSY.  LET THEM DISCLOSE THE
CONCRETE APPLICATION OF THE LEGISLATION NOW HELD VALID. 

PLAINTIFF LIVES AND WORKS IN MILWAUKEE.  SINCE THE LATTER PART OF
1931 HE HAS BEEN ENGAGED IN PERFORMING SMALL TILE LAYING JOBS.  HE HAS
PERSONALLY PERFORMED ALMOST HALF THE MANUAL LABOR REQUIRED.  HE USUALLY
EMPLOYS A TILE SETTER AND HELPER; OCCASIONALLY HE HAS MORE THAN ONE OF
EACH.  HE HAS NEVER BEEN A MEMBER OF THE TILE LAYERS UNION.  THOUGH A
COMPETENT MECHANIC IN THAT TRADE, HE IS EXCLUDED FROM MEMBERSHIP
BECAUSE HE TAKES CONTRACTS AND BECAUSE HE HAS NOT SERVED THE
APPRENTICESHIP REQUIRED BY UNION RULES.  IN 1935 HE HAD ABOUT 40 JOBS. 
HIS NET INCOME WAS $1,500 OF WHICH $750 WAS ATTRIBUTED TO HIS OWN
LABOR.  THE BALANCE, CONSTITUTING HIS PROFIT AS CONTRACTOR, WAS NOT
ENOUGH TO SUPPORT HIM AND FAMILY.    DEFENDANT LOCAL NO. 5 IS COMPOSED
OF TILE LAYERS.  ITS MEMBERSHIP, 112 IN 1929, HAD FALLEN TO 41 AT THE
TIME OF THE TRIAL IN JANUARY, 1936.  EARLY IN 1935 IT PROFFERED TO ALL
LOCAL CONTRACTORS INCLUDING PLAINTIFF A CONTRACT FIXING WAGES, HOURS
AND THE LIKE.  ABOUT HALF OF THEM SIGNED; THE OTHERS DID NOT.  IT
CONTAINED THE FOLLOWING:  "IT IS DEFINITELY UNDERSTOOD THAT NO
INDIVIDUAL, MEMBER OF A PARTNERSHIP OR CORPORATION ENGAGED IN THE TILE
CONTRACTING BUSINESS SHALL WORK WITH THE TOOLS OR ACT AS HELPER, BUT
THAT THE INSTALLATION OF ALL MATERIALS CLAIMED BY THE PARTY OF THE
SECOND PART (LOCAL NO. 5) AS LISTED UNDER THE CAPTION 'CLASSIFICATION
OF WORK' IN THIS AGREEMENT, SHALL BE DONE BY JOURNEYMEN MEMBERS OF TILE
LAYERS PROTECTIVE UNION LOCAL #5."  BECAUSE OF THAT PROVISION PLAINTIFF
DECLINED TO SIGN.  BUT REPEATEDLY HE DECLARED TO REPRESENTATIVES OF THE
UNION THAT HE WAS WILLING TO EMPLOY ITS MEMBERS AND TO COMPLY WITH ITS
RULES AS TO WAGES, HOURS AND WORKING CONDITIONS; HE ASSURED THEM THAT,
WHEN HIS BUSINESS WAS SUFFICIENT TO PERMIT, HE WOULD REFRAIN FROM
MANUAL LABOR, AND EXPLAINED THAT WITHOUT PERSONALLY WORKING HE COULD
NOT NOW CONTINUE IN BUSINESS.  CONCEDING THE TRUTH OF THAT STATEMENT,
THE UNION NEVERTHELESS PERSISTENTLY DECLINED TO MODIFY ITS DEMANDS. 

THE PRESIDENT OF LOCAL NO. 5 TESTIFIED THAT, IF PLAINTIFF DID NOT
SIGN THE CONTRACT, IT WOULD DO EVERYTHING "TO HARASS AND PUT THINGS IN
HIS WAY"; THAT IT INTENDED TO ANNOUNCE TO THE WORLD THAT HE IS A NON
UNION CONTRACTOR AND ON THAT ACCOUNT SHOULD NOT BE PATRONIZED, TO
PICKET HIS PLACE OF BUSINESS, TO ASCERTAIN WHERE HE HAD JOBS AND TO
PICKET THEM AND IN THAT WAY BRING PRESSURE TO BEAR UPON HIM TO BECOME A
UNION CONTRACTOR, TO PUT HIM IN THE CATEGORY OF A NON-UNION CONTRACTOR
UNLESS HE AGREES TO LAY ASIDE THE TOOLS OF THE TRADE.  THE PROGRAM SO
DECLARED CORRESPONDS WITH WHAT THE UNIONS HAD ALREADY DONE AGAINST
HIM. 

IN JULY, 1935, LOCAL NO. 5 SENT TO ALL CONTRACTORS AND ARCHITECTS
LETTERS STATING:  "SOME TIME AGO WE PRESENTED TO EACH INDIVIDUAL TILE
CONTRACTOR IN THE CITY A COPY OF OUR NEW AGREEMENT (THIS REFERS TO THE
ONE PLAINTIFF WAS CALLED ON TO SIGN) IN WHICH WE SPECIFIED WHAT
CONSTITUTES A BONA FIDE CONTRACTOR AND WHO SHOULD INSTALL THE WORK. 
NOT HAVING HEARD FROM SOME OF THESE SO CALLED TILE CONTRACTORS IN A
GIVEN TIME, WE BEG OF YOU TO CONTACT THE LIST OF FAIR CONTRACTORS
LISTED BELOW IN AWARDING THE TILE WORK IN YOUR BUILDING OPERATIONS.  IF
IN TWO WEEKS TIME ANYONE OUTSIDE THIS LIST IS AWARDED TILE WORK WE WILL
THEN PICKET SUCH JOBS, CONTRACTORS' OR ARCHITECTS' OFFICES, OR EMPLOY
OTHER LAWFUL MEANS TO HELP US IN OUR FIGHT TO BETTER THE CONDITIONS OF
OUR TRADE."  PLAINTIFF'S NAME WAS NOT ON THE LIST APPROVED BY THE
UNION.  THEREFORE THE LETTER MEANT THAT, IN ORDER TO PREVENT HIM FROM
WORKING, THE UNION WOULD APPLY THE DESCRIBED PRESSURE TO HIM, HIS WORK,
THE JOBS OF WHICH HIS TILE LAYING WAS A PART, THE CONTRACTORS AND THE
ARCHITECTS FROM WHOM HE GOT WORK. 

COMMENCING DECEMBER 6, 1935, IT PUT IN FRONT OF HIS HOUSE TWO MEN
CARRYING SIGNS, ONE BEING: "P. SENN TILE COMPANY (MEANING THE
PLAINTIFF) IS UNFAIR TO THE TILE LAYERS PROTECTIVE UNION," AND THE
OTHER:  "LET THE UNION TILE LAYERS INSTALL YOUR TILE WORK."  AND
REGULARLY FROM EIGHT IN THE MORNING UNTIL NOON AND FROM ONE TO FOUR IN
THE AFTERNOON IT CARRIED ON PICKETING OF THAT SORT, SOMETIMES USING
FOUR MEN.  THEY REFRAINED FROM SPEAKING TO PLAINTIFF OR OTHERS AND
COMMITTED NO BREACH OF THE PEACE.  IN THAT SENSE THEY CARRIED ON
"PEACEFUL PICKETING."  THE UNION SENT MEN IN AUTOMOBILES TO FOLLOW
PLAINTIFF WHEN GOING FROM HIS HOME TO HIS WORK, AND INSTRUCTED ALL ITS
MEMBERS TO DISCOVER WHERE HE HAD JOBS IN ORDER TO PICKET THEM. 

TO JUSTIFY THE ELIMINATION OF PLAINTIFF, COUNSEL TOLD THE COURT THAT
"BECAUSE OF THE DEMORALIZED CONDITION OF THE TRADE, THE UNION DECIDES
IT DOES NOT WANT A CONTRACTOR, WHETHER HE BE SKILLED IN THE TRADE OR
UNSKILLED, TO WORK WITH THE TOOLS OF THE TRADE WITH THE MEN BECAUSE
THERE IS NOT ENOUGH WORK TO GO AROUND."  AND ON THE WITNESS STAND THE
PRESIDENT OF LOCAL NO. 5 EXPRESSED THE IDEA THAT, IF THE CONTRACTORS
DID NOT WORK, MEMBERS OF THE UNION WOULD BE TAKEN OFF RELIEF. 

THE TRIAL COURT FOUND THE PICKETING PEACEFUL AND LAWFUL; IT DID NOT
PASS ON OTHER ACTS CONSTITUTING PRESSURE PUT ON PLAINTIFF.  BUT THE
UNIONS THEMSELVES DEEMED UNLAWFUL MUCH THAT THEY HAD THREATENED AND
DONE TO COERCE HIM.  THE FINDINGS SAY THAT "THE DEFENDANTS, BY THEIR
COUNSEL, HAVE STATED IN OPEN COURT THAT THEY WILL NOT PURSUE THE
AUTOMOBILE OF THE PLAINTIFF FROM HIS PLACE OF BUSINESS TO HIS JOBS;
THAT THEY WILL REFRAIN FROM SENDING ANY FURTHER LETTERS TO ARCHITECTS
OR CONTRACTORS, AND WILL NOT INDULGE IN ANY ACTS OR CONDUCT REFERRED TO
IN SAID LETTERS TOWARDS SAID CONTRACTORS AND ARCHITECTS."  THE TRIAL
COURT HELD PLAINTIFF NOT ENTITLED TO RELIEF.  THE SUPREME COURT
AFFIRMED.  222 WIS. 383; 268 N.W. 270.  FOLLOWING ITS DECISION IN
AMERICAN FURNITURE CO. V. CHAUFFEURS, TEAMSTERS & HELPERS UNION, 222
WIS. 338; 268 N.W. 250, CONSTRUING SEC. 103.62, IT HELD THAT WITHIN THE
MEANING OF THAT SECTION A "LABOR DISPUTE" EXISTED BETWEEN PLAINTIFF AND
DEFENDANTS AND THAT UNDER SEC. 103.53 THE PICKETING WAS LEGAL. 

THE CLAUSES OF THE FOURTEENTH AMENDMENT INVOKED BY PLAINTIFF ARE:
"NO STATE SHALL  ...  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."  OUR DECISIONS HAVE
MADE IT EVERYWHERE KNOWN THAT THESE PROVISIONS FORBID STATE ACTION
WHICH WOULD TAKE FROM THE INDIVIDUAL THE RIGHT TO ENGAGE IN COMMON
OCCUPATIONS OF LIFE, AND THAT THEY ASSURE EQUALITY OF OPPORTUNITY TO
ALL UNDER LIKE CIRCUMSTANCES.  LEST THE IMPORTANCE OR WISDOM OF THESE
GREAT DECLARATIONS BE FORGOTTEN OR NEGLECTED, THERE SHOULD BE FREQUENT
RECURRENCE TO DECISIONS OF THIS COURT THAT EXPOUND AND APPLY THEM. 

"WHILE THIS COURT HAS NOT ATTEMPTED TO DEFINE WITH EXACTNESS THE
LIBERTY THUS GUARANTEED, THE TERM HAS RECEIVED MUCH CONSIDERATION AND
SOME OF THE INCLUDED THINGS HAVE BEEN DEFINITELY STATED.  WITHOUT
DOUBT, IT DENOTES NOT MERELY FREEDOM FROM BODILY RESTRAINT BUT ALSO THE
RIGHT OF THE INDIVIDUAL TO CONTRACT, TO ENGAGE IN ANY OF THE COMMON
OCCUPATIONS OF LIFE, TO ACQUIRE USEFUL KNOWLEDGE, TO MARRY, ESTABLISH A
HOME AND BRING UP CHILDREN, TO WORSHIP GOD ACCORDING TO THE DICTATES OF
HIS OWN CONSCIENCE, AND GENERALLY TO ENJOY THOSE PRIVILEGES LONG
RECOGNIZED AT COMMON LAW AS ESSENTIAL TO THE ORDERLY PURSUIT OF
HAPPINESS BY FREE MEN."  MEYER V. NEBRASKA, 262 U.S. 390, 399. 

"THE RIGHT TO FOLLOW ANY OF THE COMMON OCCUPATIONS OF LIFE IS AN
INALIENABLE RIGHT.  IT WAS FORMULATED AS SUCH UNDER THE PHRASE 'PURSUIT
OF HAPPINESS' IN THE DECLARATION OF INDEPENDENCE, WHICH COMMENCED WITH
THE FUNDAMENTAL PROPOSITION THAT 'ALL MEN ARE CREATED EQUAL, THAT THEY
ARE ENDOWED BY THEIR CREATOR WITH CERTAIN INALIENABLE RIGHTS; THAT
AMONG THESE ARE LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS.'  ...  I
HOLD THAT THE LIBERTY OF PURSUIT - THE RIGHT TO FOLLOW ANY OF THE
ORDINARY CALLINGS OF LIFE - IS ONE OF THE PRIVILEGES OF A CITIZEN OF
THE UNITED STATES."  CONCURRING OPINION OF MR. JUSTICE BRADLEY IN
BUTCHERS' UNION CO. V. CRESCENT CITY CO., 111 U.S. 746, 762,
APPROVINGLY QUOTED IN ALLGEYER V. LOUISIANA, 165 U.S. 578, 589. 

"INCLUDED IN THE RIGHT OF PERSONAL LIBERTY AND THE RIGHT OF PRIVATE
PROPERTY - PARTAKING OF THE NATURE OF EACH - IS THE RIGHT TO MAKE
CONTRACTS FOR THE ACQUISITION OF PROPERTY.  CHIEF AMONG SUCH CONTRACTS
IS THAT OF PERSONAL EMPLOYMENT BY WHICH LABOR AND OTHER SERVICES ARE
EXCHANGED FOR MONEY OR OTHER FORMS OF PROPERTY.  IF THIS RIGHT BE
STRUCK DOWN OR ARBITRARILY INTERFERED WITH, THERE IS A SUBSTANTIAL
IMPAIRMENT OF LIBERTY IN THE LONG-ESTABLISHED CONSTITUTIONAL SENSE. 
THE RIGHT IS AS ESSENTIAL TO THE LABORER AS TO THE CAPITALIST, TO THE
POOR AS TO THE RICH; FOR THE VAST MAJORITY OF PERSONS HAVE NO OTHER
HONEST WAY TO BEGIN TO ACQUIRE PROPERTY, SAVE BY WORKING FOR MONEY." 
COPPAGE V. KANSAS, 236 U.S. 1, 14. 

"IT REQUIRES NO ARGUMENT TO SHOW THAT THE RIGHT TO WORK FOR A LIVING
IN THE COMMON OCCUPATIONS OF THE COMMUNITY IS OF THE VERY ESSENCE OF
THE PERSONAL FREEDOM AND OPPORTUNITY THAT IT WAS THE PURPOSE OF THE
AMENDMENTS TO SECURE."  TRUAX V. RAICH, 239 U.S. 33, 41. 

"UNDER THAT AMENDMENT, NOTHING IS MORE CLEARLY SETTLED THAN THAT IT
IS BEYOND THE POWER OF A STATE, 'UNDER THE GUISE OF PROTECTING THE
PUBLIC, ARBITRARILY (TO) INTERFERE WITH PRIVATE BUSINESS OR PROHIBIT
LAWFUL OCCUPATIONS OR IMPOSE UNREASONABLE AND UNNECESSARY RESTRICTIONS
UPON THEM.'"  NEW STATE ICE CO. V. LIEBMANN, 285 U.S. 262, 278. 

"THE FOURTEENTH AMENDMENT  ...  UNDOUBTEDLY INTENDED NOT ONLY THAT
THERE SHOULD BE NO ARBITRARY DEPRIVATION OF LIFE OR LIBERTY, OR
ARBITRARY SPOLIATION OF PROPERTY, BUT THAT EQUAL PROTECTION AND
SECURITY SHOULD BE GIVEN TO ALL UNDER LIKE CIRCUMSTANCES IN THE
ENJOYMENT OF THEIR PERSONAL AND CIVIL RIGHTS; THAT ALL PERSONS SHOULD
BE EQUALLY ENTITLED TO PURSUE THEIR HAPPINESS AND ACQUIRE AND ENJOY
PROPERTY; THAT THEY SHOULD HAVE LIKE ACCESS TO THE COURTS OF THE
COUNTRY FOR THE PROTECTION OF THEIR PERSONS AND PROPERTY, THE
PREVENTION AND REDRESS OF WRONGS, AND THE ENFORCEMENT OF CONTRACTS;
THAT NO IMPEDIMENT SHOULD BE INTERPOSED TO THE PURSUITS OF ANY ONE
EXCEPT AS APPLIED TO THE SAME PURSUITS BY OTHERS UNDER LIKE
CIRCUMSTANCES; THAT NO GREATER BURDENS SHOULD BE LAID UPON ONE THAN ARE
LAID UPON OTHERS IN THE SAME CALLING AND CONDITION...."  BARBIER V.
CONNOLLY, 113 U.S. 27, 31. 

"FOR, THE VERY IDEA THAT ONE MAN MAY BE COMPELLED TO HOLD HIS LIFE,
OR THE MEANS OF LIVING, OR ANY MATERIAL RIGHT ESSENTIAL TO THE
ENJOYMENT OF LIFE, AT THE MERE WILL OF ANOTHER, SEEMS TO BE INTOLERABLE
IN ANY COUNTRY WHERE FREEDOM PREVAILS, AS BEING THE ESSENCE OF SLAVERY
ITSELF."  YICK WO V. HOPKINS, 118 U.S. 356, 370. 

THE LEGISLATIVE POWER OF THE STATE CAN ONLY BE EXERTED IN
SUBORDINATION TO THE FUNDAMENTAL PRINCIPLES OF RIGHT AND JUSTICE WHICH
THE GUARANTIES OF THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
FOURTEENTH AMENDMENT ARE INTENDED TO PRESERVE.  ARBITRARY OR CAPRICIOUS
EXERCISE OF THAT POWER WHEREBY A WRONGFUL AND HIGHLY INJURIOUS INVASION
OF RIGHTS OF LIBERTY AND PROPERTY IS SANCTIONED, STRIPPING ONE OF ALL
REMEDY, IS WHOLLY AT VARIANCE WITH THOSE PRINCIPLES.  TRUAX V.
CORRIGAN, 257 U.S. 312, 327. 

IT MAY BE ASSUMED THAT THE PICKETING, UPHELD IN VIRTUE OF THE
CHALLENGED STATUTE, LAWFULLY MIGHT BE EMPLOYED IN A CONTROVERSY BETWEEN
EMPLOYER AND EMPLOYEES FOR THE PURPOSE OF PERSUADING THE EMPLOYER TO
INCREASE PAY, ETC., AND DISSUADING NON-UNION WORKERS FROM DISPLACING
UNION MEMBERS.  THE RIGHT OF WORKERS, PARTIES TO A LABOR DISPUTE, TO
STRIKE AND PICKET PEACEFULLY TO BETTER THEIR CONDITION DOES NOT
INFRINGE ANY RIGHT OF THE EMPLOYER.  AMERICAN FOUNDRIES V. TRI-CITY
COUNCIL, 257 U.S. 184, 209.  UNITED MINE WORKERS V. CORONADO COAL CO.,
259 U.S. 344, 386.  WOLFF CO. V. INDUSTRIAL COURT, 262 U.S. 522, 540,
541.  DORCHY V. KANSAS, 264 U.S. 286, 289.  BUT STRIKES OR PEACEFUL
PICKETING FOR UNLAWFUL PURPOSES ARE BEYOND ANY LAWFUL SANCTION.  THE
OBJECT BEING UNLAWFUL, THE MEANS AND END ARE ALIKE CONDEMNED.  DORCHY
V. KANSAS, 272 U.S. 306, 311.  TOLEDO, A.A. & N.M. RY. CO. V.
PENNSYLVANIA CO., 54 FED. 730, 737-739.  AND SEE TRUAX V. CORRIGAN,
SUPRA, 327; EXCHANGE BAKERY & RESTAURANT V. RIFKIN, 245 N.Y. 260, 262
263; 157 N.E. 130. 

THE OBJECT THAT DEFENDANTS SEEK TO ATTAIN IS AN UNLAWFUL ONE. 

ADMITTEDLY, IT IS TO COMPEL PLAINTIFF TO QUIT WORK AS HELPER OR TILE
LAYER.  THEIR PURPOSE IS NOT TO ESTABLISH ON HIS JOBS BETTER WAGES,
HOURS, OR CONDITIONS.  IF PERMITTED, PLAINTIFF WOULD EMPLOY UNION MEN
AND ADHERE TO UNION REQUIREMENTS AS TO PAY AND HOURS.  BUT, SOLELY
BECAUSE HE WORKS, THE UNIONS REFUSE TO ALLOW HIM TO UNIONIZE AND CARRY
ON HIS BUSINESS.  BY PICKETING, THE UNIONS WOULD PREVENT HIM WORKING ON
JOBS HE OBTAINED FROM OTHERS AND SO DESTROY THAT BUSINESS.  THEN, BY
ENFORCEMENT OF THEIR RULES THEY WOULD PREVENT HIM FROM WORKING AS A
JOURNEYMAN FOR EMPLOYERS APPROVED BY THE UNION OR UPON ANY JOB
EMPLOYING UNION MEN.  ADHERING TO THE THOUGHT THAT THERE IS NOT ENOUGH
WORK TO GO AROUND, UNQUESTIONABLY THE UNION PURPOSE IS TO ELIMINATE HIM
FROM ALL TILE LAYING WORK.  AND HIGHLY CONFIRMATORY OF THAT PURPOSE IS
THE FAILURE OF THE CONTRACT PROPOSED BY THE UNION TO PERMIT PLAINTIFF
PERSONALLY TO DO WORK IN THE PERFORMANCE OF JOBS UNDERTAKEN BY HIM FOR
PRICES BASED UPON UNION RATES OF PAY FOR ALL LABOR, INCLUDING HIS OWN. 

THE PRINCIPLES GOVERNING COMPETITION BETWEEN RIVAL INDIVIDUALS
SEEKING CONTRACTS OR OPPORTUNITY TO WORK AS JOURNEYMEN CANNOT
REASONABLY BE APPLIED IN THIS CASE.  NEITHER THE UNION NOR ITS MEMBERS
TAKE TILE LAYING CONTRACTS.  THEIR INTERESTS ARE CONFINED TO EMPLOYMENT
OF HELPERS AND LAYERS, THEIR WAGES, HOURS OF SERVICE, ETC.  THE CONTEST
IS NOT BETWEEN UNIONIZED AND OTHER CONTRACTORS OR BETWEEN ONE EMPLOYER
AND ANOTHER.  THE IMMEDIATE ISSUE IS BETWEEN THE UNIONS AND PLAINTIFF
IN RESPECT OF HIS RIGHT TO WORK IN THE PERFORMANCE OF HIS OWN JOBS.  IF
AS TO THAT THEY SHALL SUCCEED, THEN WILL COME THE ENFORCEMENT OF THEIR
RULES WHICH MAKE HIM INELIGIBLE TO WORK AS A JOURNEYMAN.  IT CANNOT BE
SAID THAT, IF HE SHOULD BE PREVENTED FROM LABORING AS HELPER OR LAYER,
THE WORK FOR UNION MEN TO DO WOULD BE INCREASED.  THE UNIONS EXCLUDE
THEIR MEMBERS FROM JOBS TAKEN BY NON-UNION EMPLOYERS.  ABOUT HALF THE
TILE CONTRACTORS ARE NOT UNIONIZED.  MORE THAN 60 PERCENT OF THE TILE
LAYERS ARE NON-UNION MEN.  THE VALUE OF PLAINTIFF'S LABOR AS HELPER AND
TILE LAYER IS VERY SMALL - ABOUT $750 PER YEAR.  BETWEEN UNION MEMBERS
AND PLAINTIFF THERE IS NO IMMEDIATE OR DIRECT COMPETITION.  IF UNDER
EXISTING CIRCUMSTANCES THERE EVER CAN BE ANY, IT MUST COME ABOUT
THROUGH A CHAIN OF UNPREDICTABLE EVENTS MAKING ITS OCCURRENCE A MERE
MATTER OF SPECULATION.  THE INTEREST OF THE UNIONS IN THE MANUAL LABOR
DONE BY PLAINTIFF IS SO REMOTE, INDIRECT AND MINUTE THAT THEY HAVE NO
STANDING AS COMPETITORS.  BERRY V. DONOVAN, 188 MASS. 353, 358; 74 N.E.
603.  UNDER THE CIRCUMSTANCES HERE DISCLOSED, THE CONDUCT OF THE UNIONS
WAS ARBITRARY AND OPPRESSIVE.  RORABACK V. MOTION PICTURE OPERATORS
UNION, 140 MINN. 481, 486; 168 N.W. 766.  HUGHES V. MOTION PICTURE
OPERATORS UNION, 282 MO. 304; 221 S.W. 95. 

MOREOVER, THE PICKETING WAS UNLAWFUL BECAUSE THE SIGNS USED
CONSTITUTE A MISREPRESENTATION OF THE FACTS.  ONE OF THEM DECLARED
PLAINTIFF "UNFAIR" TO THE TILE LAYERS UNION AND, UPON THE BASIS OF THAT
STATEMENT, THE OTHER SIGN SOLICITED TILE WORK FOR UNION TILE LAYERS. 
THERE WAS GIVEN NEITHER DEFINITION OF THE WORD NOR ANY FACT ON WHICH
THE ACCUSATION WAS BASED.  BY THE CHARGE MADE, THERE WAS IMPLIED
SOMETHING UNJUST OR INEQUITABLE IN HIS ATTITUDE TOWARD LABOR UNIONS. 
BUT THERE WAS NO FOUNDATION OF FACT FOR ANY SUCH ACCUSATION.  THERE WAS
NO WARRANT FOR CHARACTERIZING HIM AS "UNFAIR" OR OPPOSED TO ANY
LEGITIMATE PURPOSE OF THE TILE LAYERS UNION OR AS UNJUST TO UNION MEN. 
THERE IS NO ESCAPE FROM THE CONCLUSION THAT THE UNIONS INTENDED BY THE
PICKETING THEY CARRIED ON TO MISREPRESENT PLAINTIFF IN RESPECT OF HIS
RELATION TO, OR DEALING WITH, THE TILE LAYERS UNION AND BY THAT MEANS
TO DEPRIVE HIM OF HIS OCCUPATION.  THE BURDEN MAY NOT JUSTLY BE HELD TO
BE ON HIM, BY COUNTER-PICKETING OR OTHERWISE, TO REFUTE OR EXPLAIN THE
BASELESS CHARGE. 

THE JUDGMENT OF THE STATE COURT, HERE AFFIRMED, VIOLATES A PRINCIPLE
OF FUNDAMENTAL LAW:  THAT NO MAN MAY BE COMPELLED TO HOLD HIS LIFE OR
THE MEANS OF LIVING AT THE MERE WILL OF OTHERS.  YICK WO V. HOPKINS,
UBI SUPRA.  THE STATE STATUTE, CONSTRUED TO MAKE LAWFUL THE EMPLOYMENT
OF THE MEANS HERE SHOWN TO DEPRIVE PLAINTIFF OF HIS RIGHT TO WORK OR TO
MAKE LAWFUL THE PICKETING CARRIED ON IN THIS CASE, IS REPUGNANT TO THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT. 
TRUAX V. CORRIGAN, SUPRA, 328. 

I AM OF OPINION THAT THE JUDGMENT SHOULD BE REVERSED. 

MR. JUSTICE VAN DEVANTER, MR. JUSTICE MCREYNOLDS, AND MR. JUSTICE
SUTHERLAND JOIN IN THIS DISSENT. 
..END :























DUKE V. UNITED STATES, 301 U.S. 492 


NO. 907.  ARGUED MAY 4, 1937.  - DECIDED MAY 24, 1937. 


1.  A MISDEMEANOR FOR WHICH THE PUNISHMENT PRESCRIBED IS NOT INFAMOUS
BUT MAY EXCEED $500 FINE AND SIX MONTHS' IMPRISONMENT WITHOUT HARD
LABOR, MAY BE PROSECUTED BY INFORMATION.  P. 493. 

2.  SO HELD OF CRIM. CODE, SEC. 137, PRESCRIBING A FINE OF NOT MORE
THAN $1,000, OR IMPRISONMENT OF NOT MORE THAN SIX MONTHS, OR BOTH, FOR
THE OFFENSE OF ATTEMPTING TO INFLUENCE A JUROR BY A WRITTEN
COMMUNICATION.  P. 493. 

3.  THE AUTHORITY TO PROSECUTE BY INFORMATION IS NOT LIMITED TO
OFFENSES PUNISHABLE AS DEFINED IN THE PROVISO ADDED TO CR. CODE, SEC.
335 BY ACT OF DEC. 16, 1930.  P. 494. 

DUKE V. UNITED STATES. 

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH
CIRCUIT. 

RESPONSE TO QUESTIONS CERTIFIED BY THE COURT BELOW WITH RESPECT TO A
CASE ON APPEAL FROM A CRIMINAL CONVICTION. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THE COURT BELOW, BEING DIVIDED AND IN DOUBT, AND DESIRING THE
INSTRUCTION AND ADVICE OF THIS COURT, HAS CERTIFIED THE FOLLOWING
QUESTIONS OF LAW: 

"1.  MAY A MISDEMEANOR, FOR WHICH NO INFAMOUS PUNISHMENT IS
PRESCRIBED, BE PROSECUTED BY INFORMATION, WHERE THE PUNISHMENT THEREFOR
MAY EXCEED $500 FINE OR SIX MONTHS' IMPRISONMENT, WITHOUT HARD LABOR,
OR BOTH? 

"2.  MAY AN OFFENSE UNDER SEC. 137 OF THE CRIMINAL CODE BE PROSECUTED
BY INFORMATION?" 

THE CERTIFICATE CONTAINS THE FOLLOWING STATEMENT OF FACTS: 

"THIS WAS A PROSECUTION FOR VIOLATION OF SEC. 137 OF THE CRIMINAL
CODE, 18 U.S.C.A. 243, WHICH PROVIDES: 

"'WHOEVER SHALL ATTEMPT TO INFLUENCE THE ACTION OR DECISION OF ANY
GRAND OR PETIT JUROR OF ANY COURT OF THE UNITED STATES UPON ANY ISSUE
OR MATTER PENDING BEFORE SUCH JUROR, OR BEFORE THE JURY OF WHICH HE IS
A MEMBER, OR PERTAINING TO HIS DUTIES, BY WRITING OR SENDING TO HIM ANY
LETTER OR ANY COMMUNICATION, IN PRINT OR WRITING, IN RELATION TO SUCH
ISSUE OR MATTER, SHALL BE FINED NOT MORE THAN $1,000, OR IMPRISONED NOT
MORE THAN SIX MONTHS, OR BOTH.' 

"THE PROSECUTION WAS BY INFORMATION FILED UNDER OATH BY THE UNITED
STATES ATTORNEY.  THE APPELLANT WAS CONVICTED OF THE OFFENSE CHARGED
AND FROM JUDGMENT AND SENTENCE THEREON APPEALS TO THIS COURT.  ONE OF
THE QUESTIONS PRESENTED BY THE APPEAL IS WHETHER THE OFFENSE CHARGED,
WHICH IS PUNISHABLE BY SIX MONTHS IMPRISONMENT OR FINE OF $1,000, OR
BOTH, MAY BE PROSECUTED BY INFORMATION, IN VIEW OF SEC. 335 OF THE
CRIMINAL CODE.... 

"NOTWITHSTANDING THE DECISION IN THORM V. UNITED STATES (C.C.A. 3D)
59 FED.(2D) 419, CERT. DENIED 287 U.S. 624, THIS COURT IS DIVIDED AND
IN DOUBT AS TO WHETHER A MISDEMEANOR MAY BE PROSECUTED BY INFORMATION
WHERE THE PUNISHMENT THEREFOR, ALTHOUGH NOT INFAMOUS, MAY EXCEED A FINE
OF FIVE HUNDRED DOLLARS, OR SIX MONTHS' IMPRISONMENT WITHOUT HARD
LABOR, OR BOTH.  AS THERE ARE A LARGE NUMBER OF SUCH MISDEMEANORS
DENOUNCED BY THE CRIMINAL CODE (SEE HEARINGS BEFORE HOUSE JUDICIARY
COMMITTEE, SEVENTIETH CONGRESS, FIRST SESSION, JANUARY 17, 1928, ON
H.R. 5608, H.R. 8230, H.R. 8555, H.R. 8556, SERIAL 1, PAGE 31) THE
COURT DEEMS THE QUESTION OF SUFFICIENT IMPORTANCE TO CERTIFY TO THE
SUPREME COURT." 

BEFORE ITS AMENDMENT, PROVIDED: "ALL OFFENSES WHICH MAY BE PUNISHED BY
DEATH, OR IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR, SHALL BE DEEMED
FELONIES.  ALL OTHER OFFENSES SHALL BE DEEMED MISDEMEANORS." 

THIS SECTION WAS AMENDED BY THE ACT OF DECEMBER 16, 1930, C. 15, 46
STAT. 1029, 18 U.S.C. SEC. 541, BY ADDING THE FOLLOWING PROVISO:
"PROVIDED, THAT ALL OFFENSES THE PENALTY FOR WHICH DOES NOT EXCEED
CONFINEMENT IN A COMMON JAIL, WITHOUT HARD LABOR FOR A PERIOD OF SIX
MONTHS, OR A FINE OF NOT MORE THAN $500, OR BOTH, SHALL BE DEEMED TO BE
PETTY OFFENSES; AND ALL SUCH PETTY OFFENSES MAY BE PROSECUTED UPON
INFORMATION OR COMPLAINT." 

APPELLANT CONTENDS THAT THIS LANGUAGE LIMITS THE AUTHORITY TO
PROSECUTE BY INFORMATION STRICTLY TO THOSE OFFENSES PUNISHABLE AS THE
PROVISO PRESCRIBES.  UNDER THE ORIGINAL SECTION, THERE IS NO DOUBT THAT
THE OFFENSE WITH WHICH APPELLANT IS CHARGED WAS A MISDEMEANOR WHICH
COULD BE PROSECUTED BY INFORMATION.  IT WILL BE ENOUGH TO CITE AS
EXAMPLES SUPPORTING THIS CONCLUSION FALCONI V. UNITED STATES, 280 FED.
766, AND HUNTER V. UNITED STATES, 272 FED. 235, 238, WHERE OTHER CASES
ARE COLLECTED.  WE THINK THE PROVISO RELIED UPON DID NOT CHANGE THIS
RULE. 

THE ORIGINAL SECTION DIVIDES CRIMES INTO FELONIES AND MISDEMEANORS. 
THE EVIDENT OBJECT OF THE PROVISO WAS TO BRING ABOUT A SUBDIVISION OF
MISDEMEANORS BY CREATING A CLASS OF MISDEMEANORS OF MINOR GRAVITY TO BE
KNOWN AS PETTY OFFENSES; TO BE TRIED, AS PROPOSED BY OTHER LEGISLATION
(WHICH FAILED), BY UNITED STATES COMMISSIONERS.  THE ADDITION OF THE
WORDS THAT "SUCH PETTY OFFENSES MAY BE PROSECUTED UPON INFORMATION OR
COMPLAINT" DID NOT WORK A CHANGE OF THE THEN WELL-SETTLED RULE THAT ANY
MISDEMEANOR NOT INVOLVING INFAMOUS PUNISHMENT MIGHT BE PROSECUTED BY
INFORMATION INSTEAD OF BY INDICTMENT.  THE QUOTED WORDS PROBABLY WERE
INSERTED, AS THE GOVERNMENT CONTENDS AND THE LEGISLATIVE HISTORY
INDICATES, MERELY TO SUPPLEMENT AND AID THE OTHER PROPOSED LEGISLATION
THEN PENDING TO WHICH WE HAVE REFERRED; BUT, IN ANY EVENT, THEY ARE
AFFIRMATIVE WORDS AND DO NOT IN TERMS OR BY REASONABLE IMPLICATION
NEGATIVE THE BROADER LONG-STANDING RULE IN RESPECT OF MISDEMEANORS OF
THE OTHER CLASS.  THORM V. UNITED STATES, 59 F.(2D) 419.  THE OFFENSE
WITH WHICH APPELLANT WAS CHARGED WAS NOT A PETTY OFFENSE WITHIN THE
PROVISO, BUT IT WAS A MISDEMEANOR OF A KIND, AS THE CERTIFICATE
RECITES, NOT SUBJECT TO INFAMOUS PUNISHMENT - THEREFORE OPEN TO
PROSECUTION BY INFORMATION. 

BOTH INTERROGATORIES MUST BE ANSWERED IN THE AFFIRMATIVE.  QUESTION
NO. 1, YES.  QUESTION NO. 2, YES. 
..END :






















CARMICHAEL V. SOUTHERN COAL CO., 301 U.S. 495 


NO. 724.  ARGUED APRIL 7, 8, 1937.  - DECIDED MAY 24, 1937.  - 17
F.SUPP.  225, REVERSED. 


THE UNEMPLOYMENT COMPENSATION ACT OF ALABAMA SETS UP A SCHEME FOR
PROVIDING UNEMPLOYMENT BENEFITS FOR WORKERS EMPLOYED WITHIN THE STATE
BY DESIGNATED CLASSES OF EMPLOYERS.  THESE INCLUDE ALL WHO EMPLOY EIGHT
OR MORE PERSONS FOR TWENTY OR MORE WEEKS IN THE YEAR, EXCEPT THOSE
ENGAGED IN CERTAIN SPECIFIED EMPLOYMENTS.  THE EMPLOYERS ARE TO PAY
CERTAIN PERCENTAGES OF THEIR TOTAL MONTHLY PAYROLLS INTO THE STATE
UNEMPLOYMENT COMPENSATION FUND, AND EACH EMPLOYEE IS REQUIRED TO
CONTRIBUTE TO THE FUND A PERCENTAGE OF HIS WAGES.  THE FUND IS TO BE
DEPOSITED IN THE "UNEMPLOYMENT TRUST FUND" OF THE UNITED STATES
GOVERNMENT ESTABLISHED BY THE FEDERAL SOCIAL SECURITY ACT, AND IS TO BE
USED AS REQUISITIONED BY THE STATE COMMISSION TO PAY UNEMPLOYMENT
BENEFITS PRESCRIBED BY THE STATUTE, BUT WITHOUT ANY LIABILITY ON THE
PART OF THE STATE BEYOND AMOUNTS PAID INTO OR EARNED BY THE FUND. 
BENEFITS ARE PAYABLE FROM THE FUND TO THE EMPLOYEES COVERED BY THE ACT,
IN THE EVENT OF THEIR UNEMPLOYMENT, UPON PRESCRIBED CONDITIONS AND AT
PRESCRIBED RATES.  THE ACT SATISFIES THE CRITERIA WHICH, BY SEC. 903(A)
OF THE SOCIAL SECURITY ACT, ARE MADE PREREQUISITE TO ITS APPROVAL BY
THE SOCIAL SECURITY BOARD CREATED BY THAT ACT, AND IT HAS BEEN APPROVED
BY THE BOARD AS THAT SECTION DIRECTS.  BY SEC. 902 OF THE SOCIAL
SECURITY ACT, CONTRIBUTORS TO THE STATE FUND ARE ENTITLED TO CREDIT
THEIR CONTRIBUTIONS IN SATISFACTION OF THE TAX IMPOSED ON EMPLOYERS BY
THE SOCIAL SECURITY ACT, TO THE EXTENT OF 90% OF THE TAX.  HELD: 

1.  THE ACT AS AN ACT TAXING EMPLOYERS IS WITHIN THE STATE TAXING
POWER.  P. 508. 

TAXES ARE THE MEANS OF DISTRIBUTING THE BURDEN OF THE COST OF
GOVERNMENT, COMMONLY LEVIED ON PROPERTY OR ITS USE, BUT LIKEWISE
LEVIABLE ON THE EXERCISE OF PERSONAL RIGHTS AND PRIVILEGES, INCLUDING
THE EXERCISE OF THE RIGHT TO EMPLOY OR TO BE EMPLOYED. 

2.  THE TAX ON EMPLOYERS IS VALID UNDER THE FOURTEENTH AMENDMENT.  P.
508. 

(1)  INEQUALITIES WHICH RESULT FROM A SINGLING OUT OF ONE PARTICULAR
CLASS FOR TAXATION OR EXEMPTION, INFRINGE NO CONSTITUTIONAL
LIMITATION.  P. 509. 

(2)  A LEGISLATURE IS NOT BOUND TO TAX EVERY MEMBER OF A CLASS OR
NONE.  IT MAY MAKE DISTINCTIONS OF DEGREE HAVING A RATIONAL BASIS, AND
WHEN SUBJECTED TO JUDICIAL SCRUTINY THEY MUST BE PRESUMED TO REST ON
SUCH A BASIS IF SUCH WOULD EXIST UNDER ANY CONCEIVABLE STATE OF FACTS. 
P. 509. 

(3)  EXCLUSION FROM THE TAX OF EMPLOYERS OF LESS THAN EIGHT IS A
DISTINCTION OF DEGREE, SUCH AS THE LAW IS OFTEN CALLED UPON TO MAKE,
AND IS FURTHERMORE JUSTIFIED ON THE GROUND OF ADMINISTRATIVE
CONVENIENCE AND EXPENSE.  P. 510. 

(4)  THE EXEMPTION OF PARTICULAR CLASSES OF EMPLOYERS,  - THOSE WHO
EMPLOY AGRICULTURAL LABORERS, DOMESTIC SERVANTS, SEAMEN, INSURANCE
AGENTS, OR CLOSE RELATIVES - AND THE EXCLUSION OF CHARITABLE
INSTITUTIONS, INTERSTATE RAILWAYS, OR THE GOVERNMENT OF THE UNITED
STATES OR OF ANY STATE OR POLITICAL SUBDIVISION, WHEREBY THE SUBJECT OF
THE TAX IS CONFINED TO THOSE WHO EMPLOY LABOR IN THE PROCESSES OF
INDUSTRIAL PRODUCTION AND DISTRIBUTION, IS NOT ARBITRARY.  P. 512. 

WHERE THE PUBLIC INTEREST IS SERVED, ONE BUSINESS MAY BE LEFT UNTAXED
AND ANOTHER TAXED, IN ORDER TO PROMOTE THE ONE OR TO RESTRICT OR
SUPPRESS THE OTHER. 

SEVERAL OF THE EXEMPTIONS MAY REST UPON ADMINISTRATIVE
CONSIDERATIONS. 

THE BURDEN RESTS UPON THOSE WHO COMPLAIN, OF SHOWING THAT THERE ARE
NO DIFFERENCES BETWEEN THE EXEMPT EMPLOYERS AND THE INDUSTRIAL
EMPLOYERS WHO ARE TAXED, SUFFICIENT TO JUSTIFY DIFFERENCES IN
TAXATION. 

(5) THE PROVISION FOR TAXING EMPLOYEES IS SEPARABLE AND THEREFORE NOT
SUBJECT TO OBJECTION BY EMPLOYERS.  P. 513. 

(6)  DISTINCT TAXES IMPOSED BY A SINGLE STATUTE ARE NOT TO BE DEEMED
INSEPARABLE UNLESS THAT CONCLUSION IS UNAVOIDABLE.  P. 513. 

(7) UNDER THE FOURTEENTH AMENDMENT, THE STATE TAXING POWER CAN BE
EXERTED ONLY TO EFFECT A PUBLIC PURPOSE AND DOES NOT EMBRACE THE
RAISING OF REVENUE FOR PRIVATE PURPOSES.  P. 514. 

(8)  THE REQUIREMENTS OF DUE PROCESS LEAVE FREE SCOPE FOR THE
EXERCISE OF A WIDE LEGISLATIVE DISCRETION IN DETERMINING WHAT
EXPENDITURES WILL SERVE THE PUBLIC INTEREST.  P. 514. 

(9)  THE PUBLIC PURPOSES OF A STATE, FOR WHICH IT MAY RAISE FUNDS BY
TAXATION, EMBRACE EXPENDITURES FOR ITS GENERAL WELFARE.  P. 514. 

(10)  WHETHER THE EXPENDITURE UNDER THE ACT SERVES A PUBLIC PURPOSE
IS A PRACTICAL QUESTION ADDRESSED TO THE LAW-MAKING DEPARTMENT, AND IT
WOULD REQUIRE A PLAIN CASE OF DEPARTURE FROM EVERY PUBLIC PURPOSE WHICH
COULD REASONABLY BE CONCEIVED TO JUSTIFY THE INTERVENTION OF A COURT. 
P. 515. 

(11)  RELIEF OF UNEMPLOYMENT IS A PUBLIC PURPOSE.  P. 515. 

(12)  WHEN PUBLIC EVILS ENSUE FROM INDIVIDUAL MISFORTUNES OR NEEDS,
THE LEGISLATURE MAY STRIKE AT THE EVIL AT ITS SOURCE.  IF THE PURPOSE
IS LEGITIMATE BECAUSE PUBLIC, IT WILL NOT BE DEFEATED BECAUSE THE
EXECUTION OF IT INVOLVES PAYMENTS TO INDIVIDUALS.  P. 518. 

(13)  THE SCHEME OF THE ACT IS NOT SUBJECT TO ANY CONSTITUTIONAL
INFIRMITY IN NOT BEING LIMITED TO THE INDIGENT OR BECAUSE IT IS
EXTENDED TO SOME LESS DESERVING THAN OTHERS, SUCH AS THOSE DISCHARGED
FOR MISCONDUCT.  P. 518. 

(14)  THE FACT THAT THE ACT RESTRICTS ITS BENEFITS TO EMPLOYEES OF
THE CLASS OF EMPLOYERS WHO ARE SUBJECT TO THE TAX DOES NOT RENDER IT
ARBITRARY OR DISCRIMINATORY IN VIOLATION OF THE FOURTEENTH AMENDMENT. 
P. 519. 

(15)  IT IS NOT A VALID OBJECTION TO THE TAX ON EMPLOYERS THAT THE
BENEFITS PAID AND THE PERSONS TO WHOM THEY ARE PAID ARE UNRELATED TO
THE PERSONS TAXED AND THE AMOUNT OF THE TAX WHICH THEY PAY - IN SHORT,
THAT THOSE WHO PAY THE TAX MAY NOT HAVE CONTRIBUTED TO THE UNEMPLOYMENT
AND MAY NOT BE BENEFITED BY THE EXPENDITURE.  P. 521. 

THE TAX IS A MEANS OF DISTRIBUTING THE BURDEN OF THE COST OF
GOVERNMENT.  THIS COURT HAS REPUDIATED THE SUGGESTION THAT THE
CONSTITUTION REQUIRES THE BENEFITS DERIVED FROM THE EXPENDITURE OF
PUBLIC MONEYS TO BE APPORTIONED TO THE BURDENS OF THE TAXPAYER, OR THAT
HE CAN RESIST THE PAYMENT OF THE TAX BECAUSE IT IS NOT EXPENDED FOR
PURPOSES WHICH ARE PECULIARLY BENEFICIAL TO HIM.  P. 522. 

(16)  THE ACT IS NOT THE INVALID PRODUCT OF THE COERCIVE OPERATION OF
THE FEDERAL SOCIAL SECURITY ACT, AND INVOLVES NO UNCONSTITUTIONAL
SURRENDER OF STATE POWER.  STEWARD MACHINE CO. V. DAVIS, POST, P. 548. 
P. 525. 

CARMICHAEL, ATTORNEY GENERAL OF ALABAMA, ET AL. V. SOUTHERN COAL &
COKE CO.* 

*TOGETHER WITH NO. 797, CARMICHAEL, ATTORNEY GENERAL OF ALABAMA, ET
AL. V. GULF STATES PAPER CORP.  APPEAL FROM THE DISTRICT COURT OF THE
UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE
DISTRICT OF ALABAMA. 

APPEALS FROM DECREES OF THE DISTRICT COURT, OF THREE JUDGES,
RESTRAINING THE PRESENT PETITIONERS, OFFICIALS OF ALABAMA, FROM
COLLECTING THE MONEY CONTRIBUTIONS EXACTED OF THEM BY THE PROVISIONS OF
THE ALABAMA UNEMPLOYMENT COMPENSATION ACT. 

THE ALABAMA ACT IS DEPENDENT UPON THE VALIDITY OF TITLES IX AND III
OF THE FEDERAL SOCIAL SECURITY ACT.  THESE TITLES BEING
UNCONSTITUTIONAL, THE STATE ACT MUST FALL. 

THE SUPREME COURT OF ALABAMA HAS SO CONSTRUED THE STATE ACT AS TO
HOLD THAT BY ITS TERMS IT IS INVALID IF TITLE IX OR TITLE III OF THE
FEDERAL ACT IS UNCONSTITUTIONAL. 

TITLES IX AND III OF THE FEDERAL ACT ARE BEYOND THE CONGRESSIONAL
POWER; THEY ARE INVALID BECAUSE (A) THE OBVIOUS PURPOSE IS TO CONSTRAIN
THE SEVERAL STATES, THROUGH COERCION AND PURCHASE, TO ENACT
UNEMPLOYMENT COMPENSATION LAWS CONFORMABLE TO THE PATTERN PRESCRIBED BY
CONGRESS; AND (B) THEY CONSTITUTE AN EFFORT ON THE PART OF CONGRESS,
THROUGH THE EXERCISE OF ITS SPENDING AND ITS TAXING POWERS, TO CONTROL
THE SEVERAL STATES IN MATTERS EXPRESSLY RESERVED TO THE STATES AND TO
THE PEOPLE BY THE TENTH AMENDMENT. 

THE FEDERAL ACT IS INVALID BECAUSE IT CONTAINS AN ILLEGAL DELEGATION
OF LEGISLATIVE AND JUDICIAL POWERS TO THE FEDERAL SOCIAL SECURITY
BOARD. 

THE EXACTIONS IMPOSED ON EMPLOYERS BY SEC. 4(A), (B), (C), AND (D) OF
THE STATE ACT ARE IN VIOLATION OF THE FOURTEENTH AMENDMENT. 

THE STATE ACT TAKES PRIVATE PROPERTY FROM ONE CLASS FOR THE USE OF
ANOTHER; ITS PURPOSE IS NOT A "PUBLIC PURPOSE," IN THE SENSE IN WHICH
THOSE WORDS ARE USED AS JUSTIFYING THE TAKING OF PRIVATE PROPERTY. 

THE EXACTIONS IMPOSED BY THE STATE ACT ARE IN VIOLATION OF THE
FOURTEENTH AMENDMENT BECAUSE IN THEIR CLASSIFICATION AND OTHER FEATURES
THEY ARE UNREASONABLE, ARBITRARY AND CAPRICIOUS. 

THE ACT INTERFERES WITH THE RIGHT OF FREE CONTRACT OF BOTH EMPLOYERS
AND EMPLOYEES. 

THE EXACTION TAKES MONEY FROM ONE ARBITRARILY SELECTED GROUP FOR THE
BENEFIT OF ANOTHER. 

THE DOCTRINE OF OFF-SETTING BENEFITS DOES NOT SUSTAIN THE EXACTION
LEVIED UPON APPELLEE AND EMPLOYERS SIMILARLY SITUATED OR JUSTIFY THEIR
CLASSIFICATION FOR THE SUPPORT OF UNEMPLOYMENT RELIEF. 

SUCH BENEFIT AS WILL ACCRUE TO THE TAXED EMPLOYERS WILL BE MERELY THE
GENERAL BENEFIT WHICH MAY RESULT TO THE PUBLIC AT LARGE FROM GENERAL
SPENDING BY THE DETACHED UNEMPLOYED WHO DRAW THE MONEY. 

THE STATE'S ARGUMENT AS TO OFF-SETTING BENEFITS IN A WAITING LABOR
POOL WAS NOT SUSTAINED BY THE SUPREME COURT OF ALABAMA AND IS DISPROVEN
AND UNTENABLE. 

THE UNAVOIDABLE IMPLICATIONS OF THE ALABAMA EXACTION PROVE IT
UNTENABLE.  AN EXACT ANALOGY WOULD BE A PROPOSAL TO TAX ALL HUSBANDS
FOR A FUND OUT OF WHICH TO PAY ALIMONY TO DIVORCED WIVES, REGARDLESS OF
THEIR NEED, IN ORDER TO ASSURE THEM OF SPENDING MONEY DURING A WAITING
PERIOD, BOTH AS AN AID TO TRADE AND TO PRESERVE THEIR SOCIAL MORALE.  A
LIKE ANALOGY WOULD BE A WIDOWS' FUND, LEVIED DIRECTLY UPON HUSBANDS
OVER FORTY-FIVE AND DISBURSED WITHOUT REFERENCE TO THE NEED OF THOSE
WHO BECOME WIDOWED AFTER 1937. 

THE SCHEME IS NOT ONLY REVOLUTIONARY AND ARBITRARY BUT DENIES TO THE
TAXED GROUP THE EQUAL PROTECTION ENJOYED BY THOSE WHO PAY TAXES INTO
THE TREASURY. 

THE FACT CANNOT BE IGNORED THAT, AS ASSERTED BY THE ALABAMA COURT,
THIS ACT IS PART OF A FEDERAL ENFORCED PLAN DIRECTLY RELATED TO AND
INTENDED TO "CUSHION" A NATION-WIDE ECONOMIC DEPRESSION.  THE
CONCEPTION OF THE PLAN, ITS ENACTMENT, PROMULGATION AND ADMINISTRATION
LEAVE NO DOUBT WHATEVER AS TO ITS INTENTION.  NOR DOES THE OPINION OF
THE ALABAMA COURT.  THE FEDERAL GOVERNMENT, OR THE FEDERAL BOARD, CAN
AT ANY TIME IT MAY SEE FIT WITHDRAW ITS APPROVAL OF A STATE SCHEME
WHICH DOES NOT ADVANCE ITS TAX UPON THE SELECTED GROUPS TO PROVIDE FOR
MORE EXTENSIVE UNEMPLOYMENT RELIEF BENEFITS, SHOULD THE FEDERAL
ADMINISTRATION CONSIDER THAT COURSE NECESSARY TO DEAL WITH CONTINUED
UNEMPLOYMENT. 

THE STATE LEGISLATURE MAY AT WILL ENLARGE THE TAX AND THE PAYMENTS. 
THAT IS PRECISELY WHAT OCCURRED IN THE ADMINISTRATION OF THE BRITISH
ACT. 

THE MECHANISM EMPLOYED IN THIS ACT IS INTRINSICALLY SUBJECT TO ABUSE
AND WITHDRAWS OR WITHHOLDS FROM THE EMPLOYER TAXED:  (1) THE SAFEGUARD
OF A JUDICIAL HEARING AS TO THE AMOUNT OF THE FUND ACTUALLY REQUIRED,
AS TO THE BENEFIT OR APPORTIONMENT OF THE BURDEN; (2) THE SAFEGUARDS
SURROUNDING THE LEVY, BUDGETING AND APPROPRIATION OF TAXES FOR THE
PUBLIC REVENUE; (3) THE COMMUNITY OF INTEREST OF ALL WHO PAY TAXES INTO
THE TREASURY AGAINST ARBITRARY APPROPRIATIONS OF PUBLIC FUNDS FOR
INDIVIDUAL BENEFIT, INCLUDING ALL EXISTING PRACTICAL CHECKS UPON PUBLIC
SPENDING. 

A NOVEL AND DANGEROUS MECHANISM FOR DIRECT SOCIAL TAXATION, STRIPPED
OF CONVENTIONAL SAFEGUARDS BY THE BYPASS PROCESS HERE EMPLOYED, CANNOT
BE REGARDED AS CONSTITUTIONAL FAIR PLAY. 

IT IS A REVOLUTIONARY DEVICE UNDER WHICH THE EMPLOYER GROUP TAXED IS
EXPOSED TO INDEFINITE EXPLOITATION AND BY WHICH THAT GROUP WILL BE
FORCED TO IMPORTUNE EACH LEGISLATURE FOR PROTECTION. 

THE EMPLOYER IS, IN FACT, DENIED THE TRADITIONAL BENEFITS OF
REPRESENTATIVE GOVERNMENT IN THAT THE CUSTOMARY FORMS OF APPROPRIATION
AND EXPENDITURE OF HIS FUNDS ARE DENIED HIM. 

AGAIN, IT MUST BE REMEMBERED THAT THE CONSTANT THREAT OF THE FEDERAL
GOVERNMENT STANDING OVER THIS SCHEME, TO WITHDRAW APPROVAL, PROVIDES A
CONSTANT "SOMETHING IN THE NATURE OF A PENALTY," TO INDUCE THE STATE TO
ALLOW THIS SCHEME, AS SO APPROVED, TO STAND UNADJUSTED AND THE TAXED
EMPLOYERS UNHEARD. 

DUE PROCESS OF LAW, THE EQUAL PROTECTION OF THE LAW AND THE EQUALITY
OF PRIVILEGES AND IMMUNITIES GUARANTEED BY THE FOURTEENTH AMENDMENT
REQUIRE, IN FAVOR OF THOSE WHO ARE COMPELLED TO MEET PUBLIC OBJECTIVES
BY DIRECT EXPENDITURES OUT OF THEIR OWN POCKETS, THE FAIR EQUIVALENT OF
THOSE FEATURES OF TAXATION NECESSARY TO FUNDAMENTAL JUSTICE AND TO FREE
INSTITUTIONS; CERTAINLY THE EQUIVALENT OF THE SAFEGUARDS ASSURED TO ALL
WHO PAY TAXES DIRECTLY INTO THE TREASURY. 

THE STATE COULD NOT, CONSISTENTLY WITH DUE PROCESS, IMPOSE UPON
INDIVIDUAL EMPLOYERS THE DUTY OF INSURING THEIR OWN EMPLOYEES AGAINST
UNEMPLOYMENT. 

THIS IS A STATUTE DICTATING AN ADDITION TO A FINAL WAGE, REACHED
AFTER NEGOTIATION, WHICH MUST ON THIS RECORD BE PRESUMED TO BE FAIR AND
IS BEYOND THE POWER OF THE LEGISLATURE TO ENLARGE.  WE DO NOT
UNDERSTAND THAT ADAIR V. UNITED STATES, 208 U.S. 161, IS OVERRULED BY
THE VIRGINIAN RAILWAY COMPANY CASE, 300 U.S. 515, OR BY THE RAILWAY
CLERKS CASE, 281 U.S. 548.  SEE ALSO WOLFF PACKING CO. V. INDUSTRIAL
COURT, 262 U.S. 522; S.C., 267 U.S. 522.  NOR DO WE UNDERSTAND THAT THE
WEST COAST HOTEL CO. CASE, 300 U.S. 379, WAS INTENDED IN ANY SENSE TO
SUGGEST THAT A STATE LEGISLATURE MAY BY STATUTE ADD AN ARBITRARY
EXACTION TO ALL WAGES, AS THIS STATUTE, IN EFFECT, PROPOSES. 

OWING NO DUTY TO INSURE ITS OWN EMPLOYEES AGAINST UNEMPLOYMENT, NONE
CAN BE IMPOSED UPON APPELLEE AS TO EMPLOYEES OF OTHERS. 

THE LEVY OF A FLAT TAX FOR FIVE YEARS WITHOUT POSSIBILITY OF
ADJUSTMENT TO APPELLEE'S BUSINESS IS ARBITRARY. 

THE PROXIMATE AND CONTROLLING EFFECT OF THE LAW IS THE EXACTION OF
MONEY FOR PRIVATE DONATIONS. 

THE PROVISION FOR PAYMENT OF BENEFITS REGARDLESS OF NEED IS
ARBITRARY. 

THE STATE ACT AND THE ALABAMA OPINION ERRONEOUSLY ASSUME THAT THE
RIGHT TO EMPLOY OR BE EMPLOYED IS A FRANCHISE THAT MAY BE GRANTED ON
CONDITION THAT THE PARTIES ASSUME EXTRANEOUS OBLIGATIONS OF THE STATE. 

THE TAX UPON EMPLOYEES LEVIED BY SEC. 4(D) CANNOT BE SUSTAINED AS A
SCHEME FOR COMPULSORY SELF-INSURANCE. 

THE TAX CANNOT BE SUSTAINED AS TO THE EMPLOYER AND IS VOID AS TO
EMPLOYEE, AND VICE VERSA, SINCE THE LEGISLATURE CANNOT BE PRESUMED TO
HAVE LEVIED A TAX FOR A SUPPOSEDLY RATIONAL OBJECTIVE IN DOUBLE THE
AMOUNT OF THE PUBLIC NEED, WHICH ALONE IS SAID TO JUSTIFY THE
CLASSIFICATION OR BENEFIT. 

THE NUMBER AND WEEKS CLASSIFICATION OF THE STATE ACT, WHICH EXCLUDES
MORE THAN SEVENTY PER CENT. OF THE EMPLOYEE POPULATION OF ALABAMA, IS
PLAINLY ARBITRARY AS RELATED TO THE OBJECTIVE OF THE ACT. 

A STATE MAY NOT CONTRACT OR DELEGATE AWAY ITS LEGISLATIVE POWER NOR
ANY FUNCTION OF ITS SOVEREIGNTY, EVEN TO THE FEDERAL GOVERNMENT; NOR
LAWFULLY CONNIVE AT THE ASSUMPTION OF NON-FEDERAL POWERS BY THE
LATTER. 

THE USURPATION OF STATE FUNCTION INTRINSIC IN THE FEDERAL SOCIAL
SECURITY ACT AND THE ILLEGAL ACQUIESCENCE BY THE STATE BY THE ADOPTION
OF THE STATE ACT ARE DESTRUCTIVE OF THE FEDERAL BALANCE AND VOID. 

TITLES III AND IX OF THE FEDERAL SOCIAL SECURITY ACT CONSTITUTE A
SCHEME FOR THE CONTROL OF FUNCTIONS BEYOND THE CONSTITUTIONAL POWERS OF
THE FEDERAL GOVERNMENT AND ARE VOID. 

THE SOCIAL SECURITY ACT WAS CONCEIVED AND FINALLY DRAFTED AND ITS
LEGISLATIVE PURPOSE FULLY PROCLAIMED BEFORE RECENT CONTROLLING
DECISIONS OF THIS COURT ADVERSE TO THE USE OF THE TAX-CREDIT DEVICE TO
INDUCE LOCAL ACTION.  UNITED STATES V. BUTLER, 297 U.S. 1; CARTER V.
CARTER COAL CO., 298 U.S. 238; RAILROAD RETIREMENT BOARD V. ALTON R.
CO., 295 U.S. 330. 

THE DOMINANT PURPOSE, CHARACTERISTIC AND EFFECT OF THE TAX-REBATE
DEVICE OF TITLE IX ARE MANIFESTLY COERCIVE TO FORCE THE ESTABLISHMENT
OF UNEMPLOYMENT INSURANCE SYSTEMS WITHIN ALL THE STATES, PARTICIPATED
IN, AND IN SUBSTANTIAL RESPECTS CONTROLLED BY, THE FEDERAL GOVERNMENT. 

THE CREDITS ALLOWABLE UNDER TITLE IX FOR GOOD CONDUCT UNDER A STATE
LAW ARE CONCLUSIVE EVIDENCE THAT THE DOMINANT PURPOSE OF THE TITLE IS
NOT REVENUE BUT THE ESTABLISHMENT OF UNEMPLOYMENT INSURANCE SYSTEMS
WITHIN THE STATES. 

THE REPORT OF THE PRESIDENT'S COMMITTEE ON ECONOMIC SECURITY, WHICH
DETERMINED THE FORM AND SUBSTANCE OF THE ACT, ACCOMPANYING THE MESSAGE
OF JANUARY 17, 1936, LEAVES NO DOUBT AS TO THE DOMINANT PURPOSE AND
RATIONALE OF TITLE IX, AS AN UNEMPLOYMENT COMPENSATION AND NOT A TAX
MEASURE. 

NOT ONLY DOES THE FEDERAL ACT BY TITLE IX COERCE, BUT BY TITLE III IT
PURCHASES THE ESTABLISHMENT AND MAINTENANCE, SUBJECT TO FEDERAL
APPROVAL, OF STATE COMPENSATION SYSTEMS AND THE CUSTODY AND CONTROL OF
STATE FUNDS. 

THE OBJECTIVES OF THE FEDERAL ACT, NON-COMPLIANCE WITH WHICH IS
PENALIZED BY THE TAX-CREDIT DEVICE OF TITLE IX AND COMPLIANCE WITH
WHICH IS PURCHASED BY THE APPROPRIATIONS MADE PURSUANT TO TITLE III,
ARE BEYOND THE ORBIT OF FEDERAL POWER. 

THE TAX LEVIED BY TITLE IX IS IN VIOLATION OF ART. I, SEC. 9, CL. 4,
AND ART. I, SEC. 2, CL. 3, OF THE CONSTITUTION, BECAUSE THE TAX IS A
DIRECT TAX LEVIED WITHOUT APPORTIONMENT UPON THE BASIC NATURAL RIGHT OF
HAVING PERSONS IN ONE'S EMPLOY. 

THE APPROPRIATIONS MADE BY TITLE III ARE DIRECTLY RELATED TO NON
FEDERAL OBJECTIVES AND ARE VIOLATIVE OF THE FEDERAL SYSTEM. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS FOR DECISION ARE WHETHER THE UNEMPLOYMENT COMPENSATION
ACT OF ALABAMA INFRINGES THE DUE PROCESS AND EQUAL PROTECTION CLAUSES
OF THE FOURTEENTH AMENDMENT, AND WHETHER IT IS INVALID BECAUSE ITS
ENACTMENT WAS COERCED BY THE ACTION OF THE FEDERAL GOVERNMENT IN
ADOPTING THE SOCIAL SECURITY ACT, AND BECAUSE IT INVOLVES AN
UNCONSTITUTIONAL SURRENDER TO THE NATIONAL GOVERNMENT OF THE SOVEREIGN
POWER OF THE STATE. 

APPELLEE, THE SOUTHERN COAL & COKE CO., IS A DELAWARE CORPORATION
EMPLOYING MORE THAN EIGHT PERSONS IN ITS BUSINESS OF COAL MINING IN
ALABAMA.  APPELLEE, GULF STATES PAPER CORPORATION, IS A DELAWARE
CORPORATION EMPLOYING MORE THAN EIGHT PERSONS IN ITS BUSINESS OF
MANUFACTURING PAPER WITHIN THE STATE.  THEY BROUGHT THE PRESENT SUITS
IN THE DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, TO RESTRAIN
APPELLANTS, THE ATTORNEY GENERAL AND THE UNEMPLOYMENT COMPENSATION
COMMISSION OF ALABAMA, FROM COLLECTING THE MONEY CONTRIBUTIONS EXACTED
OF THEM BY THE PROVISIONS OF THE ALABAMA UNEMPLOYMENT COMPENSATION
ACT.  FROM THE DECREES OF THE DISTRICT COURT, THREE JUDGES SITTING
(JUD.  CODE, SEC. 266, 28 U.S.C. SEC. 380), GRANTING THE RELIEF PRAYED,
THE CASE COMES HERE ON APPEAL.  JUD.  CODE, SEC. 238(3), 28 U.S.C.,
SEC. 345(3). 

THE UNEMPLOYMENT COMPENSATION ACT, ALA. ACTS 1935, NO. 447; ALA. CODE
OF 1928(1936 CUM. SUPP.) SECS. 7597(1) ET SEQ., AS AMENDED BY ACTS OF
1936, NOS. 156, 194, 195, AND ACTS OF FEB. 10, 1937, AND MARCH 1, 1937,
SPEC. SESS. 1937, SETS UP A COMPREHENSIVE SCHEME FOR PROVIDING
UNEMPLOYMENT BENEFITS FOR WORKERS EMPLOYED WITHIN THE STATE BY
EMPLOYERS DESIGNATED BY THE ACT.  THESE EMPLOYERS INCLUDE ALL WHO
EMPLOY EIGHT OR MORE PERSONS FOR TWENTY OR MORE WEEKS IN THE YEAR, SEC.
2(F), EXCEPT THOSE ENGAGED IN CERTAIN SPECIFIED EMPLOYMENTS.  FN1  IT
IMPOSES ON THE EMPLOYERS THE OBLIGATION TO PAY A CERTAIN PERCENTAGE OF
THEIR TOTAL MONTHLY PAYROLLS INTO THE STATE UNEMPLOYMENT COMPENSATION
FUND, ADMINISTERED BY APPELLANTS.  FOR 1936 THE LEVY IS .9 OF 1%; FOR
1937 IT IS 1.8% AND FOR 1938 AND SUBSEQUENT YEARS IT IS 2.7%.  SEC.
4(B).  IN 1941 AND THEREAFTER THE RATES OF CONTRIBUTION BY EMPLOYERS
ARE TO BE REVISED IN ACCORDANCE WITH EXPERIENCE, BUT IN NO CASE ARE
THEY TO BE LESS THAN 1 1/2 OR MORE THAN 4% OF THE PAYROLL.  SEC. 4(C). 
AFTER MAY 1, 1936, EACH EMPLOYEE IS REQUIRED TO CONTRIBUTE 1% OF HIS
WAGES TO THE FUND.  SEC. 4(D).  THE FUND IS TO BE DEPOSITED IN THE
"UNEMPLOYMENT TRUST FUND" OF THE UNITED STATES GOVERNMENT, SEC. 3(D),
CF. SOCIAL SECURITY ACT, SEC. 904(A), AND IS TO BE USED AS
REQUISITIONED BY THE STATE COMMISSION, TO PAY UNEMPLOYMENT BENEFITS
PRESCRIBED BY THE STATUTE, SECS. 3(B), 3(D), BUT WITHOUT ANY LIABILITY
ON THE PART OF THE STATE BEYOND AMOUNTS PAID INTO OR EARNED BY THE
FUND.  BENEFITS ARE PAYABLE FROM THE FUND TO THE EMPLOYEES COVERED BY
THE ACT, IN THE EVENT OF THEIR UNEMPLOYMENT, UPON PRESCRIBED CONDITIONS
AND AT PRESCRIBED RATES. 

THE ACT SATISFIES THE CRITERIA WHICH, BY SEC. 903(A) OF THE SOCIAL
SECURITY ACT OF AUGUST 14, 1935, C. 531, 49 STAT. 620, 640, 42 U.S.C.
SEC. 1103(A), ARE MADE PREREQUISITE TO ITS APPROVAL BY THE SOCIAL
SECURITY BOARD CREATED BY THAT ACT, AND IT HAS BEEN APPROVED BY THE
BOARD AS THAT SECTION DIRECTS.  BY SEC. 902 OF THE SOCIAL SECURITY ACT,
CONTRIBUTORS TO THE STATE FUND ARE ENTITLED TO CREDIT THEIR
CONTRIBUTIONS IN SATISFACTION OF THE TAX IMPOSED ON EMPLOYERS BY THE
SOCIAL SECURITY ACT, TO THE EXTENT OF 90% OF THE TAX.  SEE CHAS. C.
STEWARD MACHINE CO. V. DAVIS, DECIDED THIS DAY, POST, P. 548. 

IN THE COURT BELOW, THE STATUTE WAS ASSAILED AS REPUGNANT TO VARIOUS
PROVISIONS OF THE STATE CONSTITUTION.  THESE CONTENTIONS HAVE BEEN PUT
AT REST BY THE DECISION OF THE SUPREME COURT OF ALABAMA IN BEELAND
WHOLESALE CO. V. KAUFMAN, 174 SO. 516, HOLDING THE STATE ACT VALID
UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS.  THE STATUTE WAS ALSO
ATTACKED ON THE GROUND THAT THE SOCIAL SECURITY ACT IS INVALID UNDER
THE FEDERAL CONSTITUTION, SINCE THE STATE ACT DECLARES THAT IT "SHALL
BECOME VOID" IF THE SUPREME COURT OF THE UNITED STATES SHALL HOLD THE
SOCIAL SECURITY ACT INVALID.  THE ALABAMA COURT INTERPRETED THE STATUTE
AS HAVING OPERATIVE EFFECT ONLY IF THE SOCIAL SECURITY ACT WERE
CONSTITUTIONAL - EVEN IN ADVANCE OF A DECISION BY THIS COURT.  WE NEED
NOT DECIDE WHETHER THE STATE COURT'S RULING THAT THE FEDERAL STATUTE IS
VALID IS CONCLUSIVE UPON US FOR THE PURPOSE OF DETERMINING WHETHER THE
STATE LAW IS PRESENTLY IN FORCE, MILLER'S EXECUTORS V. SWANN, 150 U.S.
132; LOUISVILLE & NASHVILLE R. CO. V. WESTERN UNION, 237 U.S. 300,
BECAUSE ITS CONCLUSION AS TO THE VALIDITY OF THE FEDERAL ACT AGREES
WITH OUR OWN, ANNOUNCED IN CHAS. C. STEWARD MACHINE CO. V. DAVIS,
SUPRA. 

ATTACKS WERE LEVELED AT THE STATUTE ON NUMEROUS OTHER GROUNDS, WHICH
ARE URGED HERE,  - AS AN INFRINGEMENT OF THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT, AS AN UNCONSTITUTIONAL
SURRENDER TO THE UNITED STATES GOVERNMENT OF THE SOVEREIGN POWER OF THE
STATE, AND AS A MEASURE OWING ITS PASSAGE TO THE COERCIVE ACTION OF
CONGRESS IN THE ENACTMENT OF THE SOCIAL SECURITY ACT. 

IN BEELAND WHOLESALE CO. V. KAUFMAN, SUPRA, THE SUPREME COURT OF
ALABAMA HELD THAT THE CONTRIBUTIONS WHICH THE STATUTE EXACTS OF
EMPLOYERS ARE EXCISE TAXES LAID IN CONFORMITY TO THE CONSTITUTION AND
LAWS OF THE STATE.  WHILE THE PARTICULAR NAME WHICH A STATE COURT OR
LEGISLATURE MAY GIVE TO A MONEY PAYMENT COMMANDED BY ITS STATUTE IS NOT
CONTROLLING HERE WHEN ITS CONSTITUTIONALITY IS IN QUESTION, CF.
EDUCATIONAL FILMS CO. V. WARD, 282 U.S. 379, 387; STORAASLI V.
MINNESOTA, 283 U.S. 57, 62; WAGNER V. COVINGTON, 251 U.S. 95, 102;
STANDARD OIL CO. V. GRAVES, 249 U.S. 389, 394, WE SEE NO REASON TO
DOUBT THAT THE PRESENT STATUTE IS AN EXERTION OF THE TAXING POWER OF
THE STATE.  CF. CARLEY & HAMILTON V. SNOOK, 281 U.S. 66, 71. 

TAXES, WHICH ARE BUT THE MEANS OF DISTRIBUTING THE BURDEN OF THE COST
OF GOVERNMENT, ARE COMMONLY LEVIED ON PROPERTY OR ITS USE, BUT THEY MAY
LIKEWISE BE LAID ON THE EXERCISE OF PERSONAL RIGHTS AND PRIVILEGES.  AS
HAS BEEN POINTED OUT BY THE OPINION IN THE CHAS. C. STEWARD MACHINE CO.
CASE, SUCH LEVIES, INCLUDING TAXES ON THE EXERCISE OF THE RIGHT TO
EMPLOY OR TO BE EMPLOYED, WERE KNOWN IN ENGLAND AND THE COLONIES BEFORE
THE ADOPTION OF THE CONSTITUTION, AND MUST BE TAKEN TO BE EMBRACED
WITHIN THE WIDE RANGE OF CHOICE OF SUBJECTS OF TAXATION, WHICH WAS AN
ATTRIBUTE OF THE SOVEREIGN POWER OF THE STATES AT THE TIME OF THE
ADOPTION OF THE CONSTITUTION, AND WHICH WAS RESERVED TO THEM BY THAT
INSTRUMENT.  AS THE PRESENT LEVY HAS ALL THE INDICIA OF A TAX, AND IS
OF A TYPE TRADITIONAL IN THE HISTORY OF ANGLO-AMERICAN LEGISLATION, IT
IS WITHIN STATE TAXING POWER, AND IT IS IMMATERIAL WHETHER IT IS CALLED
AN EXCISE OR BY ANOTHER NAME.  SEE BARWISE V. SHEPPARD, 299 U.S. 33,
36.  ITS VALIDITY UNDER THE FEDERAL CONSTITUTION IS TO BE DETERMINED IN
THE LIGHT OF CONSTITUTIONAL PRINCIPLES APPLICABLE TO STATE TAXATION. 

VALIDITY OF THE TAX UNDER THE FOURTEENTH AMENDMENT. 

FIRST.  VALIDITY OF THE TAX QUA TAX.  IT IS INHERENT IN THE EXERCISE
OF THE POWER TO TAX THAT A STATE BE FREE TO SELECT THE SUBJECTS OF
TAXATION AND TO GRANT EXEMPTIONS.  NEITHER DUE PROCESS NOR EQUAL
PROTECTION IMPOSES UPON A STATE ANY RIGID RULE OF EQUALITY OF
TAXATION.  SEE BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 237;
LAWRENCE V. STATE TAX COMM'N, 286 U.S. 276, 284.  THIS COURT HAS
REPEATEDLY HELD THAT INEQUALITIES WHICH RESULT FROM A SINGLING OUT OF
ONE PARTICULAR CLASS FOR TAXATION OR EXEMPTION, INFRINGE NO
CONSTITUTIONAL LIMITATION.  MAGOUN V. ILLINOIS TRUST & SAVINGS BANK,
170 U.S. 283, 293; AMERICAN SUGAR REFINING CO. V. LOUISIANA, 179 U.S.
89, 94; ARMOUR PACKING CO. V. LACY, 200 U.S. 226, 235; BROWN-FORMAN CO.
V. KENTUCKY, 217 U.S. 563, 573; QUONG WING V. KIRKENDALL, 223 U.S. 59,
62, 63; ARMOUR & CO. V. VIRGINIA, 246 U.S. 1, 6; ALASKA FISH CO. V.
SMITH, 255 U.S. 44, 48; STATE BOARD OF TAX COMM'RS V. JACKSON, 283 U.S.
527, 537; BROAD RIVER POWER CO. V. QUERY, 288 U.S. 178, 180; FOX V.
STANDARD OIL CO., 294 U.S. 87, 97; CINCINNATI SOAP CO. V. UNITED
STATES, ANTE, P. 308; GREAT ATLANTIC & PACIFIC TEA CO. V. GROSJEAN,
ANTE, P. 412. 

LIKE CONSIDERATIONS GOVERN EXEMPTIONS FROM THE OPERATION OF A TAX
IMPOSED ON THE MEMBERS OF A CLASS.  A LEGISLATURE IS NOT BOUND TO TAX
EVERY MEMBER OF A CLASS OR NONE.  IT MAY MAKE DISTINCTIONS OF DEGREE
HAVING A RATIONAL BASIS, AND WHEN SUBJECTED TO JUDICIAL SCRUTINY THEY
MUST BE PRESUMED TO REST ON THAT BASIS IF THERE IS ANY CONCEIVABLE
STATE OF FACTS WHICH WOULD SUPPORT IT.  RAST V. VAN DEMAN & LEWIS CO.,
240 U.S. 342, 357; HEISLER V. THOMAS COLLIERY CO., 260 U.S. 245, 255;
SWISS OIL CORP. V. SHANKS, 273 U.S. 407, 413; LAWRENCE V. STATE TAX
COMM'N, SUPRA; CF. METROPOLITAN CASUALTY INSURANCE CO. V. BROWNELL, 294
U.S. 580, 584. 

THIS RESTRICTION UPON THE JUDICIAL FUNCTION, IN PASSING ON THE
CONSTITUTIONALITY OF STATUTES, IS NOT ARTIFICIAL OR IRRATIONAL.  A
STATE LEGISLATURE, IN THE ENACTMENT OF LAWS, HAS THE WIDEST POSSIBLE
LATITUDE WITHIN THE LIMITS OF THE CONSTITUTION.  IN THE NATURE OF THE
CASE IT CANNOT RECORD A COMPLETE CATALOGUE OF THE CONSIDERATIONS WHICH
MOVE ITS MEMBERS TO ENACT LAWS.  IN THE ABSENCE OF SUCH A RECORD COURTS
CANNOT ASSUME THAT ITS ACTION IS CAPRICIOUS, OR THAT, WITH ITS INFORMED
ACQUAINTANCE WITH LOCAL CONDITIONS TO WHICH THE LEGISLATION IS TO BE
APPLIED, IT WAS NOT AWARE OF FACTS WHICH AFFORD REASONABLE BASIS FOR
ITS ACTION.  ONLY BY FAITHFUL ADHERENCE TO THIS GUIDING PRINCIPLE OF
JUDICIAL REVIEW OF LEGISLATION IS IT POSSIBLE TO PRESERVE TO THE
LEGISLATIVE BRANCH ITS RIGHTFUL INDEPENDENCE AND ITS ABILITY TO
FUNCTION. 

(A)  EXCLUSION OF EMPLOYERS OF LESS THAN EIGHT.  DISTINCTIONS IN
DEGREE, STATED IN TERMS OF DIFFERENCES IN NUMBER, HAVE OFTEN BEEN THE
TARGET OF ATTACK, SEE BOOTH V. INDIANA, 237 U.S. 391, 397.  IT IS
ARGUED HERE, AND IT WAS RULED BY THE COURT BELOW, THAT THERE CAN BE NO
REASON FOR A DISTINCTION, FOR PURPOSES OF TAXATION, BETWEEN THOSE WHO
HAVE ONLY SEVEN EMPLOYEES AND THOSE WHO HAVE EIGHT.  YET, THIS IS THE
TYPE OF DISTINCTION WHICH THE LAW IS OFTEN CALLED UPON TO MAKE.  FN2 IT
IS ONLY A DIFFERENCE IN NUMBERS WHICH MARKS THE MOMENT WHEN DAY ENDS
AND NIGHT BEGINS, WHEN THE DISABILITIES OF INFANCY TERMINATE AND THE
STATUS OF LEGAL COMPETENCY IS ASSUMED.  IT SEPARATES LARGE INCOMES
WHICH ARE TAXED FROM THE SMALLER ONES WHICH ARE EXEMPT, AS IT MARKS
HERE THE DIFFERENCE BETWEEN THE PROPRIETORS OF LARGER BUSINESSES WHO
ARE TAXED AND THE PROPRIETORS OF SMALLER BUSINESSES WHO ARE NOT. 

ADMINISTRATIVE CONVENIENCE AND EXPENSE IN THE COLLECTION OR
MEASUREMENT OF THE TAX ARE ALONE A SUFFICIENT JUSTIFICATION FOR THE
DIFFERENCE BETWEEN THE TREATMENT OF SMALL INCOMES OR SMALL TAXPAYERS
AND THAT METED OUT TO OTHERS.  CITIZENS' TELEPHONE CO. V. FULLER, 229
U.S. 322, 332; HATCH V. REARDON, 204 U.S. 152, 159; NEW YORK V.
LATROBE, 279 U.S. 421, 428; AERO TRANSIT CO. V. GEORGIA PUBLIC SERVICE
COMM'N, 295 U.S. 285, 289.  CF. FLORIDA CENTRAL & PENINSULAR R. CO. V.
REYNOLDS, 183 U.S. 471, 480; PACKER CORP. V. UTAH, 285 U.S. 105, 110,
FOOTNOTE 6.  WE CANNOT SAY THAT THE EXPENSE AND INCONVENIENCE OF
COLLECTING THE TAX FROM SMALL EMPLOYERS WOULD NOT BE DISPROPORTIONATE
TO THE REVENUE OBTAINED.  FOR IT CANNOT BE ASSUMED THAT THE LEGISLATURE
COULD NOT RIGHTLY HAVE CONCLUDED THAT GENERALLY THE NUMBER OF EMPLOYEES
BEARS A RELATIONSHIP TO THE SIZE OF THE PAYROLL AND THEREFORE TO THE
AMOUNT OF THE TAX, AND THAT THE LARGE NUMBER OF SMALL EMPLOYERS AND THE
PAUCITY OF THEIR RECORDS OF EMPLOYMENT WOULD ENTAIL GREATER
INCONVENIENCE IN THE COLLECTION AND VERIFICATION OF THE TAX THAN IN THE
CASE OF LARGER EMPLOYERS. 

IT WOULD HARDLY BE CONTENDED THAT THE STATE, IN ORDER TO TAX
PAYROLLS, IS BOUND TO ASSUME THE ADMINISTRATIVE COST AND BURDEN OF
TAXING ALL EMPLOYERS HAVING A SINGLE EMPLOYEE.  BUT IF FOR THAT OR ANY
OTHER REASON IT MAY EXEMPT SOME, WHETHER IT SHOULD DRAW THE LINE AT
ONE, THREE, OR SEVEN, IS PECULIARLY A QUESTION FOR LEGISLATIVE
DECISION.  THE DECISION CANNOT BE SAID TO BE ARBITRARY BECAUSE IT FALLS
IN THE TWILIGHT ZONE BETWEEN THOSE MEMBERS OF THE CLASS WHICH PLAINLY
CAN AND THOSE WHICH PLAINLY CANNOT EXPEDIENTLY BE TAXED. 

(B)  EXEMPTION OF PARTICULAR CLASSES OF EMPLOYERS.  IT IS ARBITRARY,
APPELLEES CONTEND, TO EXEMPT THOSE WHO EMPLOY AGRICULTURAL LABORERS,
DOMESTIC SERVANTS, SEAMEN, INSURANCE AGENTS, OR CLOSE RELATIVES, OR TO
EXCLUDE CHARITABLE INSTITUTIONS, INTERSTATE RAILWAYS, OR THE GOVERNMENT
OF THE UNITED STATES OR OF ANY STATE OR POLITICAL SUBDIVISION.  A
SUFFICIENT ANSWER IS AN APPEAL TO THE PRINCIPLE OF TAXATION ALREADY
STATED, THAT THE STATE IS FREE TO SELECT A PARTICULAR CLASS AS A
SUBJECT FOR TAXATION.  THE CHARACTER OF THE EXEMPTIONS SUGGESTS SIMPLY
THAT THE STATE HAS CHOSEN, AS THE SUBJECT OF ITS TAX, THOSE WHO EMPLOY
LABOR IN THE PROCESSES OF INDUSTRIAL PRODUCTION AND DISTRIBUTION. 

REASONS FOR THE SELECTIONS, IF DESIRED, READILY SUGGEST THEMSELVES. 
WHERE THE PUBLIC INTEREST IS SERVED ONE BUSINESS MAY BE LEFT UNTAXED
AND ANOTHER TAXED, IN ORDER TO PROMOTE THE ONE, AMERICAN SUGAR REFINING
CO. V. LOUISIANA, SUPRA; HEISLER V. THOMAS COLLIERY CO., SUPRA; AERO
TRANSIT CO. V. GEORGIA PUBLIC SERVICE COMM'N, SUPRA, OR TO RESTRICT OR
SUPPRESS THE OTHER, MAGNANO CO. V. HAMILTON, 292 U.S. 40; FOX V.
STANDARD OIL CO., SUPRA; QUONG WING V. KIRKENDALL, SUPRA; SINGER SEWING
MACHINE CO. V. BRICKELL, 233 U.S. 304; ALASKA FISH CO. V. SMITH, SUPRA,
48; GREAT ATLANTIC & PACIFIC TEA CO. V. GROSJEAN, SUPRA.  THE
LEGISLATURE MAY WITHHOLD THE BURDEN OF THE TAX IN ORDER TO FOSTER WHAT
IT CONCEIVES TO BE A BENEFICENT ENTERPRISE.  THIS COURT HAS OFTEN
SUSTAINED THE EXEMPTION OF CHARITABLE INSTITUTIONS, BELL'S GAP R. CO.
V. PENNSYLVANIA, SUPRA, 237; CF. BOARD OF EDUCATION V. ILLINOIS, 203
U.S. 553, 563, AND EXEMPTION FOR THE ENCOURAGEMENT OF AGRICULTURE,
AMERICAN SUGAR REFINING CO. V. LOUISIANA, SUPRA, 95; AERO TRANSIT CO.
V. GEORGIA PUBLIC SERVICE COMM'N, SUPRA, 291.  SIMILARLY, THE
LEGISLATURE IS FREE TO AID A DEPRESSED INDUSTRY SUCH AS SHIPPING.  THE
EXEMPTION OF BUSINESS OPERATING FOR LESS THAN TWENTY WEEKS IN THE YEAR
MAY REST UPON SIMILAR REASONS, OR UPON THE DESIRE TO ENCOURAGE SEASONAL
OR UNSTABLE INDUSTRIES. 

ADMINISTRATIVE CONSIDERATIONS MAY EXPLAIN SEVERAL EXEMPTIONS. 
RELATIVELY GREAT EXPENSE AND INCONVENIENCE OF COLLECTION MAY JUSTIFY
THE EXEMPTION FROM TAXATION OF DOMESTIC EMPLOYERS, FARMERS, AND FAMILY
BUSINESSES, NOT LIKELY TO MAINTAIN ADEQUATE EMPLOYMENT RECORDS, WHICH
ARE AN IMPORTANT AID IN THE COLLECTION AND VERIFICATION OF THE TAX. 
THE STATE MAY REASONABLY WAIVE THE FORMALITY OF TAXING ITSELF OR ITS
POLITICAL SUBDIVISIONS.  FEAR OF CONSTITUTIONAL RESTRICTIONS, AND A
WHOLESOME RESPECT FOR THE PROPER POLICY OF ANOTHER SOVEREIGN, WOULD
EXPLAIN EXEMPTION OF THE UNITED STATES, AND OF THE INTERSTATE RAILWAYS,
COMPARE PACKER CORP. V. UTAH, SUPRA, 109.  IN NO CASE DO APPELLEES
SUSTAIN THE BURDEN WHICH RESTS UPON THEM OF SHOWING THAT THERE ARE NO
DIFFERENCES, BETWEEN THE EXEMPT EMPLOYERS AND THE INDUSTRIAL EMPLOYERS
WHO ARE TAXED, SUFFICIENT TO JUSTIFY DIFFERENCES IN TAXATION. 

(C)  TAX ON EMPLOYEES.  APPELLEES EXTEND THEIR ATTACK ON THE STATUTE
FROM THE TAX IMPOSED ON THEM AS EMPLOYERS TO THE TAX IMPOSED ON
EMPLOYEES.  BUT THEY CANNOT OBJECT TO A TAX WHICH THEY ARE NOT ASKED TO
PAY, AT LEAST IF IT IS SEPARABLE, AS WE THINK IT IS, FROM THE TAX THEY
MUST PAY.  THE STATUTE CONTAINS THE USUAL SEPARABILITY CLAUSE.  SEC.
19.  THE TAXATION OF EMPLOYEES IS NOT PREREQUISITE TO ENJOYMENT OF THE
BENEFITS OF THE SOCIAL SECURITY ACT.  THE COLLECTION AND EXPENDITURE OF
THE TAX ON EMPLOYERS DO NOT DEPEND UPON TAXING THE EMPLOYEES, AND WE
FIND NOTHING IN THE LANGUAGE OF THE STATUTE OR ITS APPLICATION TO
SUGGEST THAT THE TAX ON EMPLOYEES IS SO ESSENTIAL TO THE OPERATION OF
THE STATUTE AS TO RESTRICT THE EFFECT OF THE SEPARABILITY CLAUSE. 
DISTINCT TAXES IMPOSED BY A SINGLE STATUTE ARE NOT TO BE DEEMED
INSEPARABLE UNLESS THAT CONCLUSION IS UNAVOIDABLE.  SEE FIELD V. CLARK,
143 U.S. 649, 697; SONZINSKY V. UNITED STATES, 300 U.S. 506.    FROM
WHAT HAS BEEN SAID, IT IS PLAIN THAT THE TAX QUA TAX CONFORMS TO
CONSTITUTIONAL REQUIREMENTS, AND THAT OUR INQUIRY AS TO ITS VALIDITY
WOULD END AT THIS POINT IF THE PROCEEDS OF THE TAX WERE TO BE COVERED
INTO THE STATE TREASURY, AND THUS MADE SUBJECT TO APPROPRIATION BY THE
LEGISLATURE. 

SECOND.  VALIDITY OF THE TAX AS DETERMINED BY ITS PURPOSES.  THE
DEVOTION OF THE TAX TO THE PURPOSES SPECIFIED BY THE ACT REQUIRES OUR
CONSIDERATION OF THE OBJECTIONS PRESSED UPON US THAT THE TAX IS INVALID
BECAUSE THE PURPOSES ARE INVALID, AND BECAUSE THE METHODS CHOSEN FOR
THEIR EXECUTION TRANSGRESS CONSTITUTIONAL LIMITATIONS.  IT IS NOT
DENIED THAT SINCE THE ADOPTION OF THE FOURTEENTH AMENDMENT STATE TAXING
POWER CAN BE EXERTED ONLY TO EFFECT A PUBLIC PURPOSE AND DOES NOT
EMBRACE THE RAISING OF REVENUE FOR PRIVATE PURPOSES.  SEE GREEN V.
FRAZIER, 253 U.S. 233, 238; MILHEIM V. MOFFAT TUNNEL DIST., 262 U.S.
710, 717; FALLBROOK IRRIGATION DIST. V. BRADLEY, 164 U.S. 112, 158;
JONES V. PORTLAND, 245 U.S. 217, 221.  THE STATES, BY THEIR
CONSTITUTIONS AND LAWS, MAY SET THEIR OWN LIMITS UPON THEIR SPENDING
POWER, SEE LOAN ASSOCIATION V. TOPEKA, 20 WALL.  655; CF. PARKERSBURG
V. BROWN, 106 U.S. 487; COLE V. LA GRANGE, 113 U.S. 1, BUT THE
REQUIREMENTS OF DUE PROCESS LEAVE FREE SCOPE FOR THE EXERCISE OF A WIDE
LEGISLATIVE DISCRETION IN DETERMINING WHAT EXPENDITURES WILL SERVE THE
PUBLIC INTEREST. 

THIS COURT HAS LONG AND CONSISTENTLY RECOGNIZED THAT THE PUBLIC
PURPOSES OF A STATE, FOR WHICH IT MAY RAISE FUNDS BY TAXATION, EMBRACE
EXPENDITURES FOR ITS GENERAL WELFARE.  FALLBROOK IRRIGATION DIST. V.
BRADLEY, SUPRA, 161; GREEN V. FRAZIER, SUPRA, 240, 241.  THE EXISTENCE
OF LOCAL CONDITIONS WHICH, BECAUSE OF THEIR NATURE AND EXTENT, ARE OF
CONCERN TO THE PUBLIC AS A WHOLE, THE MODES OF ADVANCING THE PUBLIC
INTEREST BY CORRECTING THEM OR AVOIDING THEIR CONSEQUENCES, ARE
PECULIARLY WITHIN THE KNOWLEDGE OF THE LEGISLATURE, AND TO IT, AND NOT
TO THE COURTS, IS COMMITTED THE DUTY AND RESPONSIBILITY OF MAKING
CHOICE OF THE POSSIBLE METHODS.  SEE FALLBROOK IRRIGATION DIST. V.
BRADLEY, SUPRA, 160; JONES V. PORTLAND, SUPRA, 221, 224, 225; GREEN V.
FRAZIER, SUPRA, 239, 240.  AS WITH EXPENDITURES FOR THE GENERAL WELFARE
OF THE UNITED STATES, UNITED STATES V. BUTLER, 297 U.S. 1, 67;
HELVERING V. DAVIS, POST, P. 619, WHETHER THE PRESENT EXPENDITURE
SERVES A PUBLIC PURPOSE IS A PRACTICAL QUESTION ADDRESSED TO THE LAW
MAKING DEPARTMENT, AND IT WOULD REQUIRE A PLAIN CASE OF DEPARTURE FROM
EVERY PUBLIC PURPOSE WHICH COULD REASONABLY BE CONCEIVED TO JUSTIFY THE
INTERVENTION OF A COURT.  SEE CINCINNATI SOAP CO. V. UNITED STATES,
SUPRA; CF. JONES V. PORTLAND, SUPRA.  THE PRESENT CASE EXHIBITS NO SUCH
DEPARTURE. 

(A)  RELIEF OF UNEMPLOYMENT AS A PUBLIC PURPOSE.  SUPPORT OF THE POOR
HAS LONG BEEN RECOGNIZED AS A PUBLIC PURPOSE, SEE KELLY V. PITTSBURGH,
104 U.S. 78, 81.  WE NEED NOT LABOR THE POINT THAT EXPENDITURES FOR THE
RELIEF OF THE UNEMPLOYED, CONDITIONED ON UNEMPLOYMENT ALONE, WITHOUT
PROOF OF INDIGENCE OF RECIPIENTS OF THE BENEFITS, IS A PERMISSIBLE USE
OF STATE FUNDS.  FOR THE PAST SIX YEARS THE NATION, UNHAPPILY, HAS BEEN
PLACED IN A POSITION TO LEARN AT FIRST HAND THE NATURE AND EXTENT OF
THE PROBLEM OF UNEMPLOYMENT, AND TO APPRECIATE ITS PROFOUND INFLUENCE
UPON THE PUBLIC WELFARE.  DETAILED ACCOUNTS OF THE PROBLEM AND ITS
SOCIAL AND ECONOMIC CONSEQUENCES, TO BE FOUND IN PUBLIC REPORTS OF THE
EXPENDITURES OF RELIEF FUNDS, AND IN THE STUDIES OF MANY OBSERVERS,
AFFORD A BASIS FOR THE LEGISLATIVE JUDGMENT.  IT SUFFICES TO SAY THAT
THEY SHOW THAT UNEMPLOYMENT APPARENTLY HAS BECOME A PERMANENT INCIDENT
OF OUR INDUSTRIAL SYSTEM; THAT IT VARIES, IN EXTENT AND INTENSITY, WITH
FLUCTUATIONS IN THE VOLUME OF SEASONAL BUSINESSES AND WITH THE BUSINESS
CYCLE.  IT IS DEPENDENT, WITH SPECIAL AND UNPREDICTABLE MANIFESTATIONS,
UPON TECHNOLOGICAL CHANGES AND ADVANCES IN METHODS OF MANUFACTURE, UPON
CHANGING DEMANDS FOR MANUFACTURED PRODUCTS - DICTATED BY CHANGES IN
FASHION OR THE CREATION OF DESIRABLE SUBSTITUTES, AND UPON THE
ESTABLISHMENT OF NEW SOURCES OF COMPETITION. 

THE EVILS OF THE ATTENDANT SOCIAL AND ECONOMIC WASTAGE PERMEATE THE
ENTIRE SOCIAL STRUCTURE.  APART FROM POVERTY, OR A LESS EXTREME
IMPAIRMENT OF THE SAVINGS WHICH AFFORD THE CHIEF PROTECTION TO THE
WORKING CLASS AGAINST OLD AGE AND THE HAZARDS OF ILLNESS, A MATTER OF
INESTIMABLE CONSEQUENCE TO SOCIETY AS A WHOLE, AND APART FROM THE LOSS
OF PURCHASING POWER, THE LEGISLATURE COULD HAVE CONCLUDED THAT
UNEMPLOYMENT BRINGS IN ITS WAKE INCREASE IN VAGRANCY AND CRIMES AGAINST
PROPERTY,  FN3 REDUCTION IN THE NUMBER OF MARRIAGES,  FN4
DETERIORATION OF FAMILY LIFE, DECLINE IN THE BIRTH RATE,  FN5  INCREASE
IN ILLEGITIMATE BIRTHS,  FN6  IMPAIRMENT OF THE HEALTH OF THE
UNEMPLOYED AND THEIR FAMILIES  FN7  AND MALNUTRITION OF THEIR
CHILDREN.  FN8 

ALTHOUGH EMPLOYMENT IN ALABAMA IS PREDOMINANTLY IN AGRICULTURE, AND
THE COURT BELOW FOUND THAT AGRICULTURAL UNEMPLOYMENT IS NOT AN ACUTE
PROBLEM, THE CENSUS REPORTS DISCLOSE THE STEADILY INCREASING PERCENTAGE
OF THOSE EMPLOYED IN INDUSTRIAL PURSUITS IN ALABAMA.  FN9  THE TOTAL
AMOUNT SPENT FOR EMERGENCY RELIEF IN ALABAMA, IN THE YEARS 1933 TO 1935
INCLUSIVE, EXCEEDED $47,000,000, OF WHICH $312,000 CAME FROM STATE
FUNDS, $2,243,000 FROM LOCAL SOURCES, AND THE BALANCE FROM RELIEF FUNDS
OF THE FEDERAL GOVERNMENT.  FN10  THESE FIGURES BEAR ELOQUENT WITNESS
TO THE INABILITY OF LOCAL AGENCIES TO COPE WITH THE PROBLEM WITHOUT
STATE ACTION AND RESORT TO NEW TAXING LEGISLATION.  EXPENDITURE OF
PUBLIC FUNDS UNDER THE PRESENT STATUTE, FOR RELIEF OF UNEMPLOYMENT,
WILL AFFORD SOME PROTECTION TO A SUBSTANTIAL GROUP OF EMPLOYEES,  FN11
AND WE CANNOT SAY THAT IT IS NOT FOR A PUBLIC PURPOSE. 

THE END BEING LEGITIMATE, THE MEANS IS FOR THE LEGISLATURE TO
CHOOSE.  WHEN PUBLIC EVILS ENSUE FROM INDIVIDUAL MISFORTUNES OR NEEDS,
THE LEGISLATURE MAY STRIKE AT THE EVIL AT ITS SOURCE.  IF THE PURPOSE
IS LEGITIMATE BECAUSE PUBLIC, IT WILL NOT BE DEFEATED BECAUSE THE
EXECUTION OF IT INVOLVES PAYMENTS TO INDIVIDUALS.  KELLY V. PITTSBURGH,
SUPRA; KNIGHTS V. JACKSON, 260 U.S. 12, 15; CF. MOUNTAIN TIMBER CO. V.
WASHINGTON, 243 U.S. 219, 239-240.  "INDIVIDUAL INTERESTS ARE AIDED
ONLY AS THE COMMON INTEREST IS SAFEGUARDED."  SEE COCHRAN V. BOARD OF
EDUCATION, 281 U.S. 370, 375; CF. CLARK V. NASH, 198 U.S. 361, 367;
HAIRSTON V. DANVILLE & WESTERN RY. CO., 208 U.S. 598, 608; NOBLE STATE
BANK V. HASKELL, 219 U.S. 104, 110. 

(B)  EXTENSION OF BENEFITS.  THE PRESENT SCHEME OF UNEMPLOYMENT
RELIEF IS NOT SUBJECT TO ANY CONSTITUTIONAL INFIRMITY, AS RESPONDENTS
ARGUE, BECAUSE IT IS NOT LIMITED TO THE INDIGENT OR BECAUSE IT IS
EXTENDED TO SOME LESS DESERVING THAN OTHERS, SUCH AS THOSE DISCHARGED
FOR MISCONDUCT.  WHILE WE MAY ASSUME THAT THE STATE COULD HAVE LIMITED
ITS AWARD OF UNEMPLOYMENT BENEFITS TO THE INDIGENT AND TO THOSE WHO HAD
NOT BEEN RIGHTFULLY DISCHARGED FROM THEIR EMPLOYMENT, IT WAS NOT BOUND
TO DO SO.  POVERTY IS ONE, BUT NOT THE ONLY EVIL CONSEQUENCE OF
UNEMPLOYMENT.  AMONG THE BENEFITS SOUGHT BY RELIEF IS THE AVOIDANCE OF
DESTITUTION, AND OF THE GATHERING CLOUD OF EVILS WHICH BESET THE
WORKER, HIS FAMILY AND THE COMMUNITY AFTER WAGES CEASE AND BEFORE
DESTITUTION BEGINS.  WE ARE NOT UNAWARE THAT INDUSTRIAL WORKERS ARE NOT
AN AFFLUENT CLASS, AND WE CANNOT SAY THAT A SCHEME FOR THE AWARD OF
UNEMPLOYMENT BENEFITS, TO BE MADE ONLY AFTER A SUBSTANTIAL "WAITING
PERIOD" OF UNEMPLOYMENT, AND THEN ONLY TO THE EXTENT OF HALF WAGES AND
NOT MORE THAN $15 A WEEK FOR AT MOST 16 WEEKS A YEAR, DOES NOT EFFECT A
PUBLIC PURPOSE, BECAUSE IT DOES NOT ALSO SET UP AN ELABORATE MACHINERY
FOR EXCLUDING THOSE FROM ITS BENEFITS WHO ARE NOT INDIGENT.  MOREOVER,
THE STATE COULD RIGHTFULLY DECIDE NOT TO DISCOURAGE THRIFT.  MOUNTAIN
TIMBER CO. V. WASHINGTON, SUPRA, 240.  AND AS THE INJURIOUS EFFECTS OF
UNEMPLOYMENT ARE NOT LIMITED TO THE UNEMPLOYED WORKER, THERE IS SCOPE
FOR LEGISLATION TO MITIGATE THOSE EFFECTS, EVEN THOUGH UNEMPLOYMENT
RESULTS FROM HIS DISCHARGE FOR CAUSE. 

(C)  RESTRICTION OF BENEFITS.  APPELLEES AGAIN CHALLENGE THE TAX BY
ATTACKING AS ARBITRARY THE CLASSIFICATION ADOPTED BY THE LEGISLATURE
FOR THE DISTRIBUTION OF UNEMPLOYMENT BENEFITS.  ONLY THE EMPLOYEES OF
THOSE SUBJECT TO THE TAX SHARE IN THE BENEFITS.  APPELLEES COMPLAIN
THAT THE RELIEF IS WITHHELD FROM MANY AS DESERVING AS THOSE WHO RECEIVE
BENEFITS.  THE CHOICE OF BENEFICIARIES, LIKE THE SELECTION OF THE
SUBJECTS OF THE TAX, IS THUS SAID TO BE SO ARBITRARY AND DISCRIMINATORY
AS TO INFRINGE THE FOURTEENTH AMENDMENT AND DEPRIVE THE STATUTE OF ANY
PUBLIC PURPOSE. 

WHAT WE HAVE SAID AS TO THE VALIDITY OF THE CHOICE OF THE SUBJECTS OF
THE TAX IS APPLICABLE IN LARGE MEASURE TO THE CHOICE OF BENEFICIARIES
OF THE RELIEF.  IN ESTABLISHING A SYSTEM OF UNEMPLOYMENT BENEFITS THE
LEGISLATURE IS NOT BOUND TO OCCUPY THE WHOLE FIELD.  IT MAY STRIKE AT
THE EVIL WHERE IT IS MOST FELT, OTIS V. PARKER, 187 U.S. 606, 610;
CARROLL V. GREENWICH INSURANCE CO., 199 U.S. 401, 411; LINDSLEY V.
NATURAL CARBONIC GAS CO., 220 U.S. 61, 81; CENTRAL LUMBER CO. V. SOUTH
DAKOTA, 226 U.S. 157, 160; ROSENTHAL V. NEW YORK, 226 U.S. 260, 270;
PATSONE V. PENNSYLVANIA, 232 U.S. 138, 144; KEOKEE COKE CO. V. TAYLOR,
234 U.S. 224, 227; SILVER V. SILVER, 280 U.S. 117, 123; HARDWARE
DEALERS MUTUAL FIRE INS. CO. V. GLIDDEN CO., 284 U.S. 151, 159, OR
WHERE IT IS MOST PRACTICABLE TO DEAL WITH IT, DOMINION HOTEL V.
ARIZONA, 249 U.S. 265, 268-269.  IT MAY EXCLUDE OTHERS WHOSE NEED IS
LESS, NEW YORK, N.H. & H.R. CO. V. NEW YORK, 165 U.S. 628, 634; ST.
LOUIS CONSOLIDATED COAL CO. V. ILLINOIS, 185 U.S. 203, 208; ENGEL V.
O'MALLEY, 219 U.S. 128, 138; N.Y. CENTRAL R. CO. V. WHITE, 243 U.S.
188, 208; RADICE V. NEW YORK, 264 U.S. 292, 294; WEST COAST HOTEL CO.
V. PARRISH, 300 U.S. 379, OR WHOSE EFFECTIVE AID IS ATTENDED BY
INCONVENIENCE WHICH IS GREATER, DOMINION HOTEL V. ARIZONA, SUPRA;
ATLANTIC COAST LINE R. CO. V. STATE, 135 GA. 545, AT 555-556; 69 S.E.
725, AS AFFIRMED AND APPROVED, ATLANTIC COAST LINE R. CO. V. GEORGIA,
234 U.S. 280, 289. 

AS WE CANNOT SAY THAT THESE CONSIDERATIONS DID NOT LEAD TO THE
SELECTION OF THE CLASSES OF EMPLOYEES ENTITLED TO UNEMPLOYMENT
BENEFITS, AND AS A STATE OF FACTS MAY REASONABLY BE CONCEIVED WHICH
WOULD SUPPORT THE SELECTION, ITS CONSTITUTIONALITY MUST BE SUSTAINED. 
THERE IS A BASIS, ON GROUNDS OF ADMINISTRATIVE CONVENIENCE AND EXPENSE,
FOR ADOPTING A CLASSIFICATION WHICH WOULD PERMIT THE USE OF RECORDS,
KEPT BY THE TAXPAYER AND OPEN TO THE TAX GATHERER, AS AN AID TO THE
ADMINISTRATION OF BENEFIT AWARDS, AS IS THE CASE HERE, WHERE THE
RECIPIENTS OF BENEFITS ARE SELECTED FROM THE EMPLOYEES OF THOSE WHO PAY
THE TAX.  SPECIAL COMPLAINT IS MADE OF THE DISCRIMINATION AGAINST THOSE
WITH ONLY SIX CO-WORKERS, AS CONTRASTED WITH THOSE WHO HAVE MORE.  WE
HAVE ALREADY SHOWN THAT A DISTINCTION IN TERMS OF THE NUMBER OF
EMPLOYEES IS NOT ON ITS FACE INVALID.  FN12  HERE THE LEGISLATIVE
CHOICE FINDS SUPPORT IN THE CONCLUSION REACHED BY STUDENTS OF THE
PROBLEM,  FN13  THAT UNEMPLOYMENT IS LESS LIKELY TO OCCUR IN BUSINESSES
HAVING A SMALL NUMBER OF EMPLOYEES. 

THIRD.  WANT OF RELATIONSHIP BETWEEN THE SUBJECTS AND BENEFITS OF THE
TAX.  IT IS NOT A VALID OBJECTION TO THE PRESENT TAX, CONFORMING IN
OTHER RESPECTS TO THE FOURTEENTH AMENDMENT, AND DEVOTED TO A PUBLIC
PURPOSE, THAT THE BENEFITS PAID AND THE PERSONS TO WHOM THEY ARE PAID
ARE UNRELATED TO THE PERSONS TAXED AND THE AMOUNT OF THE TAX WHICH THEY
PAY - IN SHORT, THAT THOSE WHO PAY THE TAX MAY NOT HAVE CONTRIBUTED TO
THE UNEMPLOYMENT AND MAY NOT BE BENEFITED BY THE EXPENDITURE. 
APPELLEES' CONTENTION THAT THE STATUTE IS ARBITRARY, IN SO FAR AS IT
FAILS TO DISTINGUISH BETWEEN THE EMPLOYER WITH A LOW UNEMPLOYMENT
EXPERIENCE AND THE EMPLOYER WITH A HIGH UNEMPLOYMENT EXPERIENCE, RESTS
UPON THE MISCONCEPTION THAT THERE MUST BE SUCH A RELATIONSHIP BETWEEN
THE SUBJECT OF THE TAX (THE EXERCISE OF THE RIGHT TO EMPLOY) AND THE
EVIL TO BE MET BY THE APPROPRIATION OF THE PROCEEDS (UNEMPLOYMENT).  WE
HAVE RECENTLY STATED THE APPLICABLE DOCTRINE.  "BUT IF THE TAX, QUA
TAX, BE GOOD, AS WE HOLD IT IS, AND THE PURPOSE SPECIFIED BE ONE WHICH
WOULD SUSTAIN A SUBSEQUENT AND SEPARATE APPROPRIATION MADE OUT OF THE
GENERAL FUNDS OF THE TREASURY, NEITHER IS MADE INVALID BY BEING BOUND
TO THE OTHER IN THE SAME ACT OF LEGISLATION."  CINCINNATI SOAP CO. V.
UNITED STATES, SUPRA.  NOTHING IS MORE FAMILIAR IN TAXATION THAN THE
IMPOSITION OF A TAX UPON A CLASS OR UPON INDIVIDUALS WHO ENJOY NO
DIRECT BENEFIT FROM ITS EXPENDITURE, AND WHO ARE NOT RESPONSIBLE FOR
THE CONDITION TO BE REMEDIED.  FN14 

A TAX IS NOT AN ASSESSMENT OF BENEFITS.  IT IS, AS WE HAVE SAID, A
MEANS OF DISTRIBUTING THE BURDEN OF THE COST OF GOVERNMENT.  THE ONLY
BENEFIT TO WHICH THE TAXPAYER IS CONSTITUTIONALLY ENTITLED IS THAT
DERIVED FROM HIS ENJOYMENT OF THE PRIVILEGES OF LIVING IN AN ORGANIZED
SOCIETY, ESTABLISHED AND SAFEGUARDED BY THE DEVOTION OF TAXES TO PUBLIC
PURPOSES.  SEE CINCINNATI SOAP CO. V. UNITED STATES, SUPRA.  ANY OTHER
VIEW WOULD PRECLUDE THE LEVYING OF TAXES EXCEPT AS THEY ARE USED TO
COMPENSATE FOR THE BURDEN ON THOSE WHO PAY THEM, AND WOULD INVOLVE THE
ABANDONMENT OF THE MOST FUNDAMENTAL PRINCIPLE OF GOVERNMENT - THAT IT
EXISTS PRIMARILY TO PROVIDE FOR THE COMMON GOOD.  A CORPORATION CANNOT
OBJECT TO THE USE OF THE TAXES WHICH IT PAYS FOR THE MAINTENANCE OF
SCHOOLS BECAUSE IT HAS NO CHILDREN.  THOMAS V. GAY, 169 U.S. 264, 280. 
THIS COURT HAS REPUDIATED THE SUGGESTION, WHENEVER MADE, THAT THE
CONSTITUTION REQUIRES THE BENEFITS DERIVED FROM THE EXPENDITURE OF
PUBLIC MONEYS TO BE APPORTIONED TO THE BURDENS OF THE TAXPAYER, OR THAT
HE CAN RESIST THE PAYMENT OF THE TAX BECAUSE IT IS NOT EXPENDED FOR
PURPOSES WHICH ARE PECULIARLY BENEFICIAL TO HIM.  FN15  CINCINNATI SOAP
CO. V. UNITED STATES, SUPRA; CARLEY & HAMILTON V. SNOOK, SUPRA, 72;
NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S. 249, 268; SEE UNION
REFRIGERATOR TRANSIT CO. V. KENTUCKY, 199 U.S. 194, 203.    EVEN IF A
LEGISLATURE SHOULD UNDERTAKE, WHAT THE CONSTITUTION DOES NOT REQUIRE,
TO PLACE THE BURDEN OF A TAX FOR UNEMPLOYMENT BENEFITS UPON THOSE WHO
CAUSE OR CONTRIBUTE TO UNEMPLOYMENT, IT MIGHT CONCLUDE THAT THE BURDEN
CANNOT JUSTLY BE APPORTIONED AMONG EMPLOYERS ACCORDING TO THEIR
UNEMPLOYMENT EXPERIENCE.  UNEMPLOYMENT IN THE PLANT OF ONE EMPLOYER MAY
BE DUE TO COMPETITION WITH ANOTHER, WITHIN OR WITHOUT THE STATE, WHOSE
FACTORY IS RUNNING TO CAPACITY; OR TO TARIFFS, INVENTIONS, CHANGES IN
FASHIONS OR IN MARKET OR BUSINESS CONDITIONS, FOR WHICH NO EMPLOYER IS
RESPONSIBLE, BUT WHICH MAY STIMULATE THE BUSINESS OF ONE AND IMPAIR OR
EVEN DESTROY THAT OF ANOTHER.  MANY BELIEVE THAT THE RESPONSIBILITY FOR
THE BUSINESS CYCLE, THE CHIEF CAUSE OF UNEMPLOYMENT, CANNOT BE
APPORTIONED TO INDIVIDUAL EMPLOYERS IN ACCORDANCE WITH THEIR EMPLOYMENT
EXPERIENCE; THAT A BUSINESS MAY BE LEAST RESPONSIBLE FOR THE DEPRESSION
FROM WHICH IT SUFFERS THE MOST. 

THE ALABAMA LEGISLATURE MAY HAVE PROCEEDED UPON THE VIEW, FOR WHICH
THERE IS ABUNDANT AUTHORITY, THAT THE CAUSES OF UNEMPLOYMENT ARE TOO
COMPLEX TO ADMIT OF A METICULOUS APPRAISAL OF EMPLOYER RESPONSIBILITY. 
FN16  IT MAY HAVE CONCLUDED THAT UNEMPLOYMENT IS AN INSEPARABLE
INCIDENT OF MODERN INDUSTRY, WITH ITS MOST SERIOUS MANIFESTATIONS IN
INDUSTRIAL PRODUCTION; THAT EMPLOYEES WILL BE BEST PROTECTED, AND THAT
THE COST OF THE REMEDY, AT LEAST UNTIL MORE ACCURATE AND COMPLETE DATA
ARE AVAILABLE, MAY BEST BE DISTRIBUTED, BY IMPOSING THE TAX EVENLY UPON
ALL INDUSTRIAL PRODUCTION,  FN17  AND IN SUCH FORM THAT IT WILL BE
ADDED TO LABOR COSTS WHICH ARE ULTIMATELY ABSORBED BY THE PUBLIC IN THE
PRICES WHICH IT PAYS FOR CONSUMABLE GOODS. 

IF THE QUESTION WERE OURS TO DECIDE, WE COULD NOT SAY THAT THE
LEGISLATURE, IN ADOPTING THE PRESENT SCHEME RATHER THAN ANOTHER, HAD NO
BASIS FOR ITS CHOICE, OR WAS ARBITRARY OR UNREASONABLE IN ITS ACTION. 
BUT, AS THE STATE IS FREE TO DISTRIBUTE THE BURDEN OF A TAX WITHOUT
REGARD TO THE PARTICULAR PURPOSE FOR WHICH IT IS TO BE USED, THERE IS
NO WARRANT IN THE CONSTITUTION FOR SETTING THE TAX ASIDE BECAUSE A
COURT THINKS THAT IT COULD HAVE DRAWN A BETTER STATUTE OR COULD HAVE
DISTRIBUTED THE BURDEN MORE WISELY.  THOSE ARE FUNCTIONS RESERVED FOR
THE LEGISLATURE. 

SINCE THE APPELLEES MAY NOT COMPLAIN IF THE EXPENDITURE HAS NO
RELATION TO THE TAXED CLASS OF WHICH THEY ARE MEMBERS, THEY OBVIOUSLY
MAY NOT COMPLAIN BECAUSE THE EXPENDITURE HAS SOME RELATION TO THAT
CLASS, THAT THOSE BENEFITED ARE EMPLOYEES OF THOSE TAXED; OR BECAUSE
THE LEGISLATURE HAS ADOPTED THE EXPEDIENT OF SPREADING THE BURDEN OF
THE TAX TO THE CONSUMING PUBLIC BY IMPOSING IT UPON THOSE WHO MAKE AND
SELL COMMODITIES.  IT IS IRRELEVANT TO THE PERMISSIBLE EXERCISE OF THE
POWER TO TAX THAT SOME PAY THE TAX WHO HAVE NOT OCCASIONED ITS
EXPENDITURE, OR THAT IN THE COURSE OF THE USE OF ITS PROCEEDS FOR A
PUBLIC PURPOSE THE LEGISLATURE HAS BENEFITED INDIVIDUALS, WHO MAY OR
MAY NOT BE RELATED TO THOSE WHO ARE TAXED. 

RELATIONSHIP OF THE STATE AND FEDERAL STATUTES. 

THERE REMAIN FOR CONSIDERATION THE CONTENTIONS THAT THE STATE ACT IS
INVALID BECAUSE ITS ENACTMENT WAS COERCED BY THE ADOPTION OF THE SOCIAL
SECURITY ACT, AND THAT IT INVOLVES AN UNCONSTITUTIONAL SURRENDER OF
STATE POWER.  EVEN THOUGH IT BE ASSUMED THAT THE EXERCISE OF A
SOVEREIGN POWER BY A STATE, IN OTHER RESPECTS VALID, MAY BE RENDERED
INVALID BECAUSE OF THE COERCIVE EFFECT OF A FEDERAL STATUTE ENACTED IN
THE EXERCISE OF A POWER GRANTED TO THE NATIONAL GOVERNMENT, SUCH
COERCION IS LACKING HERE.  IT IS UNNECESSARY TO REPEAT NOW THOSE
CONSIDERATIONS WHICH HAVE LED TO OUR DECISION IN THE CHAS. C. STEWARD
MACHINE CO. CASE, THAT THE SOCIAL SECURITY ACT HAS NO SUCH COERCIVE
EFFECT.  AS THE SOCIAL SECURITY ACT IS NOT COERCIVE IN ITS OPERATION,
THE UNEMPLOYMENT COMPENSATION ACT CANNOT BE SET ASIDE AS AN
UNCONSTITUTIONAL PRODUCT OF COERCION.  THE UNITED STATES AND THE STATE
OF ALABAMA ARE NOT ALIEN GOVERNMENTS.  THEY COEXIST WITHIN THE SAME
TERRITORY.  UNEMPLOYMENT WITHIN IT IS THEIR COMMON CONCERN.  TOGETHER
THE TWO STATUTES NOW BEFORE US EMBODY A COOPERATIVE LEGISLATIVE EFFORT
BY STATE AND NATIONAL GOVERNMENTS, FOR CARRYING OUT A PUBLIC PURPOSE
COMMON TO BOTH, WHICH NEITHER COULD FULLY ACHIEVE WITHOUT THE
COOPERATION OF THE OTHER.  THE CONSTITUTION DOES NOT PROHIBIT SUCH
COOPERATION. 

AS THE STATE LEGISLATION IS NOT THE PRODUCT OF A PROHIBITED COERCION,
THERE IS LITTLE ELSE TO WHICH APPELLEES CAN POINT AS INDICATING A
SURRENDER OF STATE SOVEREIGNTY.  AS THE OPINION IN THE CHAS. C. STEWARD
MACHINE CO. CASE POINTS OUT, FULL LIBERTY OF ACTION IS SECURED TO THE
STATE BY BOTH STATUTES.  THE UNEMPLOYMENT COMPENSATION FUND IS
ADMINISTERED IN ACCORDANCE WITH STATE LAW BY THE STATE COMMISSION.  THE
STATUTE MAY BE REPEALED AT THE WILL OF THE LEGISLATURE, AND IN THAT
CASE THE STATE WILL BE FREE TO WITHDRAW AT ANY TIME ITS UNEXPENDED
SHARE OF THE UNEMPLOYMENT TRUST FUND FROM THE TREASURY OF THE UNITED
STATES, AND TO USE IT FOR ANY PUBLIC PURPOSE.  AND, FOR THE REASONS
STATED IN THE OPINION IN THE CHAS. C. STEWARD MACHINE CO. CASE, WE
CONCLUDE THAT THE DEPOSIT BY THE STATE OF ITS COMPENSATION FUND IN THE
UNEMPLOYMENT TRUST FUND INVOLVES NO MORE OF A SURRENDER OF SOVEREIGNTY
THAN DOES THE CHOICE OF ANY OTHER DEPOSITORY FOR STATE FUNDS.  THE
POWER TO CONTRACT AND THE POWER TO SELECT APPROPRIATE AGENCIES AND
INSTRUMENTALITIES FOR THE EXECUTION OF STATE POLICY ARE ATTRIBUTES OF
STATE SOVEREIGNTY.  THEY ARE NOT LOST BY THEIR EXERCISE. 

MANY OTHER ARGUMENTS ARE PRESSED UPON US.  THEY REQUIRE NO DISCUSSION
SAVE AS THEIR ANSWER IS IMPLICIT IN WHAT WE HAVE SAID.  THE STATE
COMPENSATION ACT, ON ITS FACE, AND AS APPLIED TO APPELLEES, IS SUBJECT
TO NO CONSTITUTIONAL INFIRMITY, AND THE DECREE BELOW IS REVERSED. 

FN1  SEE SEC. 2(G).  "EMPLOYMENT" IS DEFINED TO EXCLUDE: 

(1)  AGRICULTURAL LABOR; 

(2)  DOMESTIC SERVICE IN A PRIVATE HOME; 

(3)  SERVICE PERFORMED AS AN OFFICER, BAR PILOT, OR MEMBER OF THE
CREW OF A VESSEL ON THE NAVIGABLE WATERS OF THE UNITED STATES; 

(4)  SERVICE PERFORMED BY AN INDIVIDUAL IN THE EMPLOY OF HIS SON,
DAUGHTER, OR SPOUSE, AND SERVICE PERFORMED BY A CHILD UNDER THE AGE OF
TWENTY-ONE IN THE EMPLOY OF HIS FATHER OR MOTHER; 

(5)  SERVICE PERFORMED IN THE EMPLOY OF THE UNITED STATES GOVERNMENT
OR OF AN INSTRUMENTALITY OF THE UNITED STATES; 

(6)  SERVICE PERFORMED IN THE EMPLOY OF A CARRIER ENGAGED IN
INTERSTATE COMMERCE AND SUBJECT TO THE ACT OF CONGRESS KNOWN AS THE
RAILWAY LABOR ACT; AS AMENDED OR AS HEREAFTER AMENDED.  SERVICE
PERFORMED BY THOSE ENGAGED AS SOLICITORS OR AGENTS FOR INSURANCE
COMPANIES; 

(7)  SERVICE PERFORMED IN THE EMPLOY OF A STATE, OR POLITICAL
SUBDIVISION THEREOF, OR AN INSTRUMENTALITY OF ONE OR MORE STATES OR
POLITICAL SUBDIVISIONS; 

(8)  SERVICE PERFORMED IN THE EMPLOY OF A CORPORATION, COMMUNITY
CHEST, FUND, OR FOUNDATION, ORGANIZED AND OPERATED EXCLUSIVELY FOR
RELIGIOUS, CHARITABLE, SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES,
OR FOR THE PREVENTION OF CRUELTY TO CHILDREN OR ANIMALS, NO PART OF THE
NET EARNINGS OF WHICH INURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER
OR INDIVIDUAL. 

FN2  ST. LOUIS CONSOLIDATED COAL CO. V. ILLINOIS, 185 U.S. 203,
207(COAL MINES EMPLOYING FIVE OR MORE SUBJECT TO INSPECTION); MCLEAN V.
ARKANSAS, 211 U.S. 539, 551(MINES EMPLOYING TEN OR MORE REQUIRED TO
MEASURE COAL FOR PAYMENT OF WAGES BEFORE SCREENING); BOOTH V. INDIANA,
237 U.S. 391, 397(MINES REQUIRED TO SUPPLY WASH-HOUSES UPON DEMAND OF
TWENTY EMPLOYEES); JEFFREY MFG. CO. V. BLAGG, 235 U.S. 571, 576;
MIDDLETON V. TEXAS POWER & L. CO., 249 U.S. 152, 159(EMPLOYERS OF FIVE
OR MORE INCLUDED WITHIN WORKMEN'S COMPENSATION ACT). 

FN3  SEE, E.G., NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT
(1931), REPORT ON THE CAUSES OF CRIME, NO. 13, ESPECIALLY P. 312. 

FN4  FROM 1924 TO 1932, INCLUSIVE, THE MARRIAGE RATE IN ALABAMA,
DETERMINED BY MARRIAGES PER 1,000 POPULATION, WAS AS FOLLOWS:  11.4;
11.9; 11.9; 11.6; 11.2; 11.2; 10.4; 9.7; 9.4(DERIVED FROM STATISTICAL
ABSTRACT OF THE UNITED STATES, 1926, TABLE 90; ID., 1928, TABLE 95;
ID., 1930, TABLE 99 ID., 1932, TABLE 80; ID., 1936, TABLE 92).  THE
FIRST SIZEABLE DECLINE CAME IN 1930. 

FN5  SEE STATE BOARD OF HEALTH, BUREAU OF VITAL STATISTICS, REPORT
RELATING TO THE REGISTRATION OF BIRTHS AND DEATHS IN THE STATE OF
ALABAMA FOR THE YEAR ENDING 31ST DECEMBER, 1935, P. XXXVII: "BETWEEN
1910 AND 1927, THE TREND IN THE BIRTH RATE WAS UPWARD, EXCEPT IN 1918,
THE YEAR IN WHICH THE OUTBREAK OF INFLUENZA OCCURRED AND THE FOLLOWING
YEAR.  FROM 1927 TO 1935, THE TREND HAS BEEN DOWNWARD, THE RATE OF
DECLINE HAVING BEEN PRACTICALLY CONSTANT SINCE 1928 FORWARD, WITH THE
SINGLE EXCEPTION IN 1934.  THE RISE IN 1934 WAS DUE TO A NUMBER OF
FACTORS, INCLUDING AN INCREASE IN BIRTH REGISTRATION FOLLOWING THE
REGISTRATION CAMPAIGN AND MARRIAGES." 

FN6  SEE ANNUAL REPORT OF THE STATE BOARD OF HEALTH OF ALABAMA, 1933,
P. 166, TABLE XXV.  THE RATE OF ILLEGITIMATE BIRTHS PER 1,000 LIVE
BIRTHS, FOR THE YEARS 1929 THROUGH 1933, WERE 70.4; 74.6; 81.6; 88.7;
95.1. 

FN7  A SURVEY OF 4,137 PEOPLE IN BIRMINGHAM, ALABAMA, AND COVERING
THREE MONTHS IN THE SPRING OF 1933, SHOWED THAT THE RATE OF ILLNESS
(DISABLING ILLNESS PER 1,000 PERSONS) WAS 165 IN FAMILIES WITH NO
EMPLOYED WORKERS; 148 IN FAMILIES WITH AT LEAST ONE PART-TIME WORKER,
BUT NO FULL-TIME WORKERS; AND 140 IN FAMILIES WITH AT LEAST ONE
FULLTIME WORKER.  SEE PERROTT AND COLLINS, RELATION OF SICKNESS TO
INCOME AND INCOME CHANGE IN 10 SURVEYED COMMUNITIES, PUBLIC HEALTH
REPORTS (UNITED STATES PUBLIC HEALTH SERVICE), VOL. 50, P. 595, AT 606,
TABLE 6. 

FN8  SEE ELIOT, MARTHA M., SOME EFFECTS OF THE DEPRESSION ON THE
NUTRITION OF CHILDREN, HOSPITAL SOCIAL SERVICE, VOL. 28, P. 585;
PALMER, CARROLL E., HEIGHT AND WEIGHT OF CHILDREN OF THE DEPRESSION
POOR, PUBLIC HEALTH REPORTS, VOL. 50, P. 1106. 

FN9  OF THOSE EMPLOYED IN ALABAMA THE PER CENT. EMPLOYED IN INDUSTRY
WERE 19.5% IN 1900; 21.4% IN 1910; 30.7% IN 1920; 33.6% IN 1930; 24.3%
IN 1935.  (LAST FIGURE ESTIMATED AT THE TRIAL BY GIST, FORMERLY
STATISTICIAN OF THE DEPARTMENT OF AGRICULTURE, AND SINCE FEB. 1, 1936,
ECONOMIC ADVISER TO THE COMMISSIONER OF AGRICULTURE OF ALABAMA.)  THE
DECLINE IN 1935 MAY BE TAKEN TO CORROBORATE THE GREATER SUSCEPTIBILITY
OF EMPLOYMENT IN INDUSTRY TO THE DEPRESSION. 

FN10  FIGURES OBTAINED FROM FEDERAL EMERGENCY RELIEF ADMINISTRATION,
AS STATED IN APPENDIX TO THE BRIEF OF RESPONDENT, NO. 837, CHAS. C.
STEWARD MACHINE CO. V. DAVIS, PP. 74-75, TABLE 17. 

FN11  APPELLEES POINT TO AN ESTIMATE THAT, LARGELY BECAUSE OF THE
LARGE AGRICULTURAL POPULATION, ONLY 26.81% OF THOSE EMPLOYED IN ALABAMA
AS OF OCTOBER 14, 1936, WERE COVERED BY THE ACT. 

BUT IT WAS ESTIMATED AT THE TRIAL BY GIST (FORMERLY STATISTICIAN OF
THE DEPARTMENT OF AGRICULTURE, AND SINCE FEB. 1, 1936, ECONOMIC ADVISER
TO THE COMMISSIONER OF AGRICULTURE OF ALABAMA), THAT IF IN 1941 THERE
SHOULD BE A RECURRENCE OF UNEMPLOYMENT "SOMEWHAT EQUIVALENT TO THE
PERIOD WE HAVE JUST COME THROUGH, AND EMPLOYMENT IN THE INDUSTRIAL
GROUPS UNDER CONSIDERATION SHOULD DROP TO, SAY 170,000(APPROXIMATELY
THE NUMBER EMPLOYED IN 1932), WE WOULD FIND ALABAMA WITH SOMETHING LIKE
64,000 UNEMPLOYED PERSONS WHO WOULD BE ENTITLED TO THE BENEFITS OF THIS
ACT." 

FN12  SEE SUPRA, FOOTNOTE 2. 

FN13  W. I. KING, EMPLOYMENT HOURS AND EARNINGS IN PROSPERITY AND
DEPRESSION; HANSEN, BJORNARAA, AND SOGGE, DECLINE OF EMPLOYMENT IN THE
1930-1931 DEPRESSION IN ST. PAUL, MINNEAPOLIS AND DULUTH, U. OF MINN.,
EMPLOYMENT STABILIZATION RESEARCH INSTITUTE, VOL. 1, NO. 5, P. 20-25. 

FN14  CIGARETTE AND TOBACCO TAXES ARE EARMARKED, IN SOME STATES, FOR
SCHOOL FUNDS AND EDUCATIONAL PURPOSES, ALA. ACTS 1927, NO. 163, SECS.
2(J), (K); ACTS 1932, NO. 113, SEC. 15; ARK. ACTS 1933, NOS. 135, 140,
SEC. 2; TENN. CODE (1932), SEC. 1242; TEX. LAWS 1935, C. 241, SEC. 3,
AND IN GEORGIA FOR PENSIONS FOR CONFEDERATE SOLDIERS, GA. LAWS 1923,
PP. 39, 41. 

LIQUOR LICENSE FEES AND TAXES ARE PAID INTO OLD AGE PENSION FUNDS,
COLO. LAWS 1933, SP. SESS., C. 12, SEC. 27; POLICE PENSION FUNDS, N.Y.
TAX LAW (1934) SEC. 435, SUBDS. 4, 4-A; AND SCHOOL FUNDS, N.M. LAWS
1933, C. 159, SEC. 10(B); WIS. LAWS SP. SESS. 1933-34, CHS.  3, 14. 

CHAIN STORE TAXES ARE SOMETIMES EARMARKED FOR SCHOOL FUNDS, ALA. ACTS
1935, NO. 194, SEC. 348, SCHEDULE 155.9; FLA. LAWS 1935, C. 16848, SEC.
15; IDAHO LAWS 1933, C. 113, SEC. 10. 

LICENSE AND PARI-MUTUEL TAXES IN STATES AUTHORIZING HORSE RACING ARE
DEVOTED TO FAIRS AND AGRICULTURAL PURPOSES, CAL. STAT. 1933, C. 769,
SEC. 13; ILL. REV. STAT. (CAHILL, 1933) C. 38, SEC. 316(6); MICH. ACTS
1933, NO. 199, SEC. 10; TO HIGHWAY FUNDS, NEV. COMP. LAWS (HILLYER,
1929) SEC. 6223; AND TO AN OLD AGE PENSION FUND IN WASHINGTON, LAWS
1933, C. 55, SEC. 9. 

UNEMPLOYMENT RELIEF, THOUGH FINANCED IN MOST STATES BY SPECIAL BOND
ISSUES, HAS IN SOME INSTANCES BEEN FINANCED BY GASOLINE TAXES, OHIO
LAWS 1933, FILE NO. 8, SECS. 1, 2; FILE NO. 28; OKLA. LAWS 1931, C. 66,
ARTICLE 10, SECS. 2, 3; SALES TAXES, ILL. LAWS 1933, PP. 924, 926;
MICH. ACTS 1933, NO. 167, SEC. 25(B); UTAH LAWS 1933, C. 63, SEC. 21;
INCOME TAXES, WIS. LAWS 1933, C. 363, SEC. 2; MISCELLANEOUS EXCISE
TAXES, OHIO GEN. CODE (PAGE SUPP. 1935) SEC. 6212-49(BEER); SEC. 5543
2(COSMETICS); SEC. 5544-2(ADMISSIONS); UTAH REV. STAT. SEC. 46-0
47(BEER). 

FN15  SIMILARLY, SPECIAL TAXING DISTRICTS FOR THE MAINTENANCE OF
ROADS OR PUBLIC IMPROVEMENTS WITHIN THE DISTRICT HAVE BEEN SUSTAINED,
WITHOUT PROOF OF THE NATURE OR AMOUNT OF SPECIAL BENEFITS.  SEE ST.
LOUIS & S.W. RY. CO. V. NATTIN, 277 U.S. 157, 159; MEMPHIS & C. RY. CO.
V. PACE, 282 U.S. 241, 248, 249; CF. MISSOURI PACIFIC R. CO. V. ROAD
DISTRICT, 266 U.S. 187.  A DIFFERENT QUESTION IS PRESENTED WHEN A STATE
UNDERTAKES TO LEVY LOCAL ASSESSMENTS APPORTIONED TO LOCAL BENEFITS.  IN
THAT CASE, IF IT FAILS TO CONFORM TO THE STANDARD OF APPORTIONMENT
ADOPTED, ITS ACTION IS ARBITRARY, SEE GEORGIA RY. & ELEC.  CO. V.
DECATUR, 295 U.S. 165, 170, BECAUSE THERE IS A DENIAL OF EQUAL
PROTECTION.  ROAD IMPROVEMENT DISTRICT V. MISSOURI PACIFIC R. CO., 274
U.S. 188, 191-194; CF. GEORGIA RY. & ELEC.  CO. V. DECATUR, 297 U.S.
620.  BUT IF THE ASSESSMENT IS APPORTIONED TO BENEFITS IT IS NOT
CONSTITUTIONALLY DEFECTIVE BECAUSE THE ASSESSMENT EXCEEDS THE
BENEFITS.  ROBERTS V. RICHLAND IRRIGATION DISTRICT, 289 U.S. 71, 75. 

FN16  REPORT OF PRESIDENT HOOVER'S COMMITTEE ON RECENT SOCIAL TRENDS
(1933) 807 FF; J.M. CLARK, ECONOMICS OF OVERHEAD COSTS (1929) PP. 366
367; DOUGLAS, HITCHCOCK, AND ATKINS, THE WORKER IN MODERN ECONOMIC
SOCIETY (1925) P. 491 ET SEQ.; BEVERIDGE, UNEMPLOYMENT, A PROBLEM OF
INDUSTRY (1930) PP. 100-103; W.C. MITCHELL, BUSINESS CYCLES; THE
PROBLEM AND ITS SETTING (1927) PP. 87, 210, 238. 

FN17  SEE E. M. BURNS, TOWARD SOCIAL SECURITY (1936) PP. 70-73; P.
DOUGLAS, SOCIAL SECURITY IN THE UNITED STATES (1936) PP. 253-355; A.
EPSTEIN, INSECURITY - A CHALLENGE TO AMERICA (3D ED. 1936) PP. 311-312,
317; HANSEN, MURRAY, STEVENSON, AND STEWART, A PROGRAM FOR UNEMPLOYMENT
INSURANCE AND RELIEF IN THE UNITED STATES (1934) PP. 16, 65-73. 

MR. JUSTICE MCREYNOLDS THINKS THAT THE DECREE SHOULD BE AFFIRMED. 

MR. JUSTICE SUTHERLAND, DISSENTING. 

THE OBJECTIVE SOUGHT BY THE ALABAMA STATUTE HERE IN QUESTION, NAMELY,
THE RELIEF OF UNEMPLOYMENT, I DO NOT DOUBT IS ONE WITHIN THE
CONSTITUTIONAL POWER OF THE STATE.  BUT IT IS AN OBJECTIVE WHICH MUST
BE ATTAINED BY LEGISLATION WHICH DOES NOT VIOLATE THE DUE PROCESS OR
THE EQUALPROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  THIS STATUTE,
IN MY OPINION, DOES BOTH, ALTHOUGH IT WOULD HAVE BEEN A COMPARATIVELY
SIMPLE MATTER FOR THE LEGISLATURE TO AVOID BOTH. 

THE STATUTE LAYS A PAYROLL TAX UPON EMPLOYERS, THE PROCEEDS OF WHICH
GO INTO A COMMON FUND TO BE DISTRIBUTED FOR THE RELIEF OF SUCH EX
EMPLOYEES, COMING WITHIN THE PROVISIONS OF THE STATUTE, AS SHALL HAVE
LOST THEIR EMPLOYMENT IN ANY OF A DESIGNATED VARIETY OF INDUSTRIES
WITHIN THE STATE.  SOME OF THESE EMPLOYERS ARE ENGAGED IN INDUSTRIES
WHERE WORK CONTINUES THE YEAR ROUND.  OTHERS ARE ENGAGED IN SEASONAL
OCCUPATIONS, WHERE THE WORK IS DISCONTINUED FOR A PART OF THE YEAR. 
SOME OF THE EMPLOYERS ARE ENGAGED IN INDUSTRIES WHERE THE NUMBER OF MEN
EMPLOYED REMAINS STABLE, OR FAIRLY SO, WHILE OTHERS ARE ENGAGED IN
INDUSTRIES WHERE THE NUMBER OF THE MEN EMPLOYED FLUCTUATES GREATLY FROM
TIME TO TIME.  PLAINLY, A DISPROPORTIONATELY HEAVY BURDEN WILL BE
IMPOSED BY THE TAX UPON THOSE WHOSE OPERATIONS CONTRIBUTE LEAST TO THE
EVILS OF UNEMPLOYMENT, AND, CORRESPONDINGLY, THE BURDEN WILL BE
LESSENED IN RESPECT OF THOSE WHOSE OPERATIONS CONTRIBUTE MOST. 

AN EXAMPLE WILL MAKE THIS CLEAR.  LET US SUPPOSE THAT A, AN EMPLOYER
OF A THOUSAND MEN, HAS RETAINED ALL OF HIS EMPLOYEES.  B, AN EMPLOYER
OF A THOUSAND MEN, HAS DISCHARGED HALF OF HIS EMPLOYEES.  THE TAX IS
UPON THE PAYROLL OF EACH.  A, WHO HAS NOT DISCHARGED A SINGLE WORKMAN,
IS TAXED UPON HIS PAYROLL TWICE AS MUCH AS B, ALTHOUGH THE OPERATION OF
B'S ESTABLISHMENT HAS CONTRIBUTED ENORMOUSLY TO THE EVIL OF
UNEMPLOYMENT WHILE THAT OF A HAS CONTRIBUTED NOTHING AT ALL.  IT THUS
RESULTS THAT THE EMPLOYER WHO HAS KEPT ALL HIS MEN AT WORK PAYS TWICE
AS MUCH TOWARD THE RELIEF OF THE EMPLOYEES DISCHARGED BY B AS B HIMSELF
PAYS.  MOREOVER, WHEN WE CONSIDER THE LARGE NUMBER AND THE MANY KINDS
OF INDUSTRIES, THEIR DIFFERING CHARACTERISTICS AND THE VARIED
CIRCUMSTANCES BY WHICH THEIR OPERATIONS ARE CONDITIONED, THE GROSS
UNFAIRNESS OF THIS UNEQUAL BURDEN OF THE TAX BECOMES PLAIN BEYOND
PERADVENTURE.  IT IS THE SAME UNFAIRNESS, IN AN AGGRAVATED FORM, AS
THAT WHICH WE SO RECENTLY CONDEMNED AS FATALLY ARBITRARY IN RAILROAD
RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330.  THAT CASE DEALT WITH A
FEDERAL STATUTE WHICH ESTABLISHED A PENSION PLAN REQUIRING PAYMENTS TO
BE MADE BY ALL INTERSTATE RAILROAD CARRIERS INTO A POOLED FUND TO BE
USED FOR THE PAYMENT OF ANNUITIES INDISCRIMINATELY TO RAILROAD
EMPLOYEES, OF WHATEVER COMPANY, WHEN THEY HAD REACHED THE AGE OF 65
YEARS.  THIS COURT, BECAUSE OF THIS POOLING FEATURE, AMONG OTHER
THINGS, HELD THE ACT TO BE BAD.  WE SAID (P. 357) - 

"THIS COURT HAS REPEATEDLY HAD OCCASION TO SAY THAT THE RAILROADS,
THOUGH THEIR PROPERTY BE DEDICATED TO THE PUBLIC USE, REMAIN THE
PRIVATE PROPERTY OF THEIR OWNERS, AND THAT THEIR ASSETS MAY NOT BE
TAKEN WITHOUT JUST COMPENSATION.  THE CARRIERS HAVE NOT CEASED TO BE
PRIVATELY OPERATED AND PRIVATELY OWNED, HOWEVER MUCH SUBJECT TO
REGULATION IN THE INTEREST OF INTERSTATE COMMERCE.  THERE IS NO WARRANT
FOR TAKING THE PROPERTY OR MONEY OF ONE AND TRANSFERRING IT TO ANOTHER
WITHOUT COMPENSATION, WHETHER THE OBJECT OF THE TRANSFER BE TO BUILD UP
THE EQUIPMENT OF THE TRANSFEREE OR TO PENSION ITS EMPLOYEES....  THE
ARGUMENT IS THAT SINCE THE RAILROADS AND THE PUBLIC HAVE A COMMON
INTEREST IN THE EFFICIENT PERFORMANCE OF THE WHOLE TRANSPORTATION
CHAIN, IT IS PROPER AND NECESSARY TO REQUIRE ALL CARRIERS TO CONTRIBUTE
TO THE COST OF A PLAN DESIGNED TO SERVE THIS END.  IT IS SAID THAT THE
POOLING PRINCIPLE IS DESIRABLE BECAUSE THERE ARE MANY SMALL CARRIERS
WHOSE EMPLOYEES ARE TOO FEW TO JUSTIFY MAINTENANCE OF A SEPARATE
RETIREMENT PLAN FOR EACH."  IN SUPPORT OF THAT VIEW, SEVERAL CASES HAD
BEEN CITED.  THOSE CASES WERE REVIEWED AND DISTINGUISHED, AND WE
CONCLUDED, P. 360, "THAT THE PROVISIONS OF THE ACT WHICH DISREGARD THE
PRIVATE AND SEPARATE OWNERSHIP OF THE SEVERAL RESPONDENTS, TREAT THEM
ALL AS A SINGLE EMPLOYER, AND POOL ALL THEIR ASSETS REGARDLESS OF THEIR
INDIVIDUAL OBLIGATIONS AND THE VARYING CONDITIONS FOUND IN THEIR
RESPECTIVE ENTERPRISES, CANNOT BE JUSTIFIED AS CONSISTENT WITH DUE
PROCESS." 

CASES WHICH ARE RELIED UPON HERE TO SUSTAIN THE ALABAMA STATUTE WERE
RELIED UPON THERE TO SUSTAIN THE RETIREMENT ACT, MOUNTAIN TIMBER CO. V.
WASHINGTON, 243 U.S. 219, AMONG OTHERS.  THAT CASE DEALT WITH THE STATE
OF WASHINGTON WORKMEN'S COMPENSATION ACT, REQUIRING DESIGNATED PAYMENTS
TO BE MADE BY EMPLOYERS INTO A STATE FUND FOR COMPENSATING INJURED
WORKMEN.  BUT WE POINTED OUT (295 U.S. 359) THAT ALTHOUGH THE PAYMENTS
WERE MADE INTO A COMMON FUND, ACCOUNTS WERE TO BE KEPT WITH EACH
INDUSTRY IN ACCORDANCE WITH THE CLASSIFICATION, AND NO CLASS WAS TO BE
LIABLE FOR THE DEPLETION OF THE FUND BY REASON OF ACCIDENTS HAPPENING
IN ANOTHER CLASS.  AND WE SAID, "THE RAILROAD RETIREMENT ACT, ON THE
CONTRARY, MAKES NO CLASSIFICATION, BUT, AS ABOVE SAID, TREATS ALL THE
CARRIERS AS A SINGLE EMPLOYER, IRRESPECTIVE OF THEIR SEVERAL
CONDITIONS." 

IF THE ALABAMA ACT HAD FOLLOWED THE PLAN OF THE WASHINGTON ACT IN
RESPECT OF CLASSIFICATION, WE SHOULD HAVE A VERY DIFFERENT QUESTION TO
CONSIDER.  THE VICE OF THE ALABAMA ACT IS PRECISELY THAT WHICH WAS
CONDEMNED IN THE RAILROAD RETIREMENT BOARD CASE.  INDEED, THE VICE IS
MORE PRONOUNCED, SINCE THE FEDERAL ACT, RELATING AS IT DID TO RAILROADS
ONLY, DEALT WITH A HOMOGENEOUS GROUP OF EMPLOYERS, WHILE THE ALABAMA
ACT SEEKS TO IMPOSE THE CHARACTER OF "A SINGLE EMPLOYER" UPON A LARGE
NUMBER OF EMPLOYERS SEVERALLY ENGAGED IN ENTIRELY DISSIMILAR
INDUSTRIES. 

IT MUST BE BORNE IN MIND THAT WE ARE NOT DEALING WITH A GENERAL TAX,
THE PROCEEDS OF WHICH ARE TO BE APPROPRIATED FOR ANY PUBLIC PURPOSE
WHICH THE LEGISLATURE THEREAFTER MAY SELECT, BUT WITH A TAX EXPRESSLY
LEVIED FOR A SPECIFIED PURPOSE.  THE TAX AND THE USE OF THE TAX ARE
INSEPARABLY UNITED; AND IF THE PROPOSED USE CONTRAVENES THE
CONSTITUTION, IT NECESSARILY FOLLOWS THAT THE TAX DOES THE SAME. 
CINCINNATI SOAP CO. V. UNITED STATES, ANTE, PP. 308, 313. 

OTHER STATES HAVE NOT FOUND IT IMPOSSIBLE TO ADJUST THEIR
UNEMPLOYMENT LAWS TO MEET THE CONSTITUTIONAL DIFFICULTIES THUS
PRESENTED BY THE ALABAMA ACT.  THE PIONEER AMONG THESE STATES IS
WISCONSIN.  THAT STATE PROVIDES (ACT OF JANUARY 29, 1932, C. 20, LAWS
OF WIS., SPEC. SESS., 1931, P. 57, AS AMENDED) THAT WHILE THE PROCEEDS
OF THE TAX SHALL BE PAID INTO A COMMON FUND, AN ACCOUNT SHALL BE KEPT
WITH EACH INDIVIDUAL EMPLOYER, TO WHICH ACCOUNT HIS PAYMENTS ARE TO BE
CREDITED AND AGAINST WHICH ONLY THE AMOUNTS PAID TO HIS FORMER
EMPLOYEES ARE TO BE CHARGED.  IF HE MAINTAINS HIS ROLL OF EMPLOYEES
INTACT, HE WILL BE CHARGED NOTHING, AND IN ANY EVENT ONLY TO THE EXTENT
THAT HIS EMPLOYMENT ROLL IS DIMINISHED.  WHEN HIS TAX CONTRIBUTIONS
HAVE REACHED A CERTAIN PERCENTAGE OF HIS PAYROLL, THE AMOUNT OF HIS TAX
IS REDUCED, AND WHEN THEY REACH 10%, THE TAX IS DISCONTINUED AS LONG AS
THAT PERCENTAGE REMAINS.  THE RESULT IS THAT EACH EMPLOYER BEARS HIS
OWN BURDENS, AND NOT THOSE OF HIS COMPETITOR OR OF OTHER EMPLOYERS. 
THE DIFFERENCE BETWEEN THE WISCONSIN AND THE ALABAMA ACTS IS THUS
SUCCINCTLY STATED BY THE SOCIAL SECURITY BOARD IN ITS INFORMATIONAL
SERVICE CIRCULAR NO. 5, ISSUED NOVEMBER, 1936, PP. 8-9: 

"(1)  THE PLAN FOR INDIVIDUAL EMPLOYER ACCOUNTS PROVIDES FOR EMPLOYER
RESERVE ACCOUNTS IN THE STATE FUND.  EACH EMPLOYER'S CONTRIBUTIONS ARE
CREDITED TO HIS SEPARATE ACCOUNT, AND BENEFITS ARE PAID FROM HIS
ACCOUNT ONLY TO HIS FORMER EMPLOYEES.  IF HE IS ABLE TO BUILD UP A
SPECIFIED RESERVE IN HIS ACCOUNT, HIS CONTRIBUTION RATE IS REDUCED." 

SUCH IS THE WISCONSIN PLAN; WHILE UNDER THE ALABAMA STATUTE - 

"(2)  THE POOLED-FUND PLAN PROVIDES FOR A POOLING OF ALL
CONTRIBUTIONS IN A SINGLE UNDIVIDED FUND FROM WHICH BENEFITS ARE PAID
TO ELIGIBLE EMPLOYEES, IRRESPECTIVE OF THEIR FORMER EMPLOYERS." 

WHICH OF THESE PLANS IS MORE ADVANTAGEOUS FROM A PURELY ECONOMIC
STANDPOINT DOES NOT PRESENT A JUDICIAL QUESTION.  BUT FROM THE
CONSTITUTIONAL POINT OF VIEW, IN SO FAR AS IT INVOLVES THE GROUND UPON
WHICH I THINK THE ALABAMA ACT SHOULD BE CONDEMNED, I ENTERTAIN NO DOUBT
THAT THE WISCONSIN PLAN IS SO FAIR, REASONABLE AND JUST AS TO MAKE
PLAIN ITS CONSTITUTIONAL VALIDITY; AND THAT THE ALABAMA STATUTE, LIKE
THE NEW YORK STATUTE INVOLVED IN CHAMBERLIN, INC. V. ANDREWS, 299 U.S.
515, AFFIRMED BY AN EQUALLY-DIVIDED COURT DURING THE PRESENT TERM, IS
SO ARBITRARY AS TO RESULT IN A DENIAL BOTH OF DUE PROCESS AND EQUAL
PROTECTION OF THE LAWS. 

I AM AUTHORIZED TO SAY THAT MR. JUSTICE VAN DEVANTER AND MR. JUSTICE
BUTLER CONCUR IN THIS OPINION. 
..END :
















STONE V. WHITE, 301 U.S. 532 


NO. 202 (OCTOBER TERM, 1935).  - ARGUED APRIL 29, 1937.  - DECIDED MAY
24, 1937.  - 78 F.(2D) 136, AFFIRMED. 


1.  A STATUTORY ACTION FOR A REFUND OF TAXES ERRONEOUSLY COLLECTED IS
IN THE NATURE OF A COMMON LAW ACTION FOR MONEY HAD AND RECEIVED AND
LIKE IT IS GOVERNED BY EQUITABLE PRINCIPLES.  P. 534. 

2.  WHERE THE INCOME FROM A TRUST, BELONGING TO THE SOLE BENEFICIARY,
WAS ERRONEOUSLY TAXED TO AND COLLECTED FROM THE TRUSTEES WHEN IT SHOULD
HAVE BEEN TAXED TO THE BENEFICIARY, IN AN ACTION BY THE TRUSTEES FOR A
REFUND THE COLLECTOR MAY SET UP IN DEFENSE THAT THE GOVERNMENT HAS THE
RIGHT TO RETAIN THE MONEY, BY WAY OF EQUITABLE RECOUPMENT, ALTHOUGH
COLLECTION FROM THE BENEFICIARY IS BARRED BY THE STATUTE OF
LIMITATIONS.  P. 535. 

3.  SECTIONS 275(A), 607 AND 609, REVENUE ACT, 1928, LIMIT THE
COLLECTION OF A TAX, AND PREVENT THE RETENTION OF ONE PAID AFTER IT IS
BARRED BY THE STATUTE.  THEY PRECLUDE, IN A SUIT BY THE TAXPAYER
AGAINST THE COLLECTOR OR THE GOVERNMENT, RELIANCE ON A CLAIM AGAINST
THE TAXPAYER, BARRED BY STATUTE, AS A SET-OFF OR COUNTERCLAIM; BUT THEY
DO NOT DEPRIVE THE GOVERNMENT OF DEFENSES BASED ON SPECIAL EQUITIES
ESTABLISHING ITS RIGHT TO WITHHOLD A REFUND FROM THE DEMANDING
TAXPAYER.  P. 538. 

STONE ET AL., TRUSTEES, V. WHITE, FORMER COLLECTOR OF INTERNAL
REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 300 U.S. 643, TO REVIEW THE REVERSAL OF A RECOVERY BY THE
PRESENT PETITIONERS IN THEIR ACTION AGAINST THE COLLECTOR OF INTERNAL
REVENUE. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE PETITIONERS, TESTAMENTARY
TRUSTEES, WHO HAVE PAID A TAX ON THE INCOME OF THE TRUST ESTATE, WHICH
SHOULD HAVE BEEN PAID BY THE BENEFICIARY, ARE ENTITLED TO RECOVER THE
TAX, ALTHOUGH THE GOVERNMENT'S CLAIM AGAINST THE BENEFICIARY HAS BEEN
BARRED BY THE STATUTE OF LIMITATIONS.  THE PRESENT SUIT TO RECOVER THE
TAX, BROUGHT BY PETITIONERS AGAINST RESPONDENT, THE COLLECTOR, IN THE
DISTRICT COURT FOR MASSACHUSETTS, RESULTED IN A JUDGMENT FOR
PETITIONERS, 8 F.SUPP.  354, WHICH WAS REVERSED BY THE COURT OF APPEALS
FOR THE FIRST CIRCUIT, 78 F.(2D) 136.  WE GRANTED CERTIORARI BECAUSE OF
THE CONFLICT OF THE DECISION BELOW WITH THAT OF THE COURT OF APPEALS
FOR THE THIRD CIRCUIT, UNITED STATES V. ARNOLD, 89 F.(2D) 246. 

TESTATOR, BY HIS WILL, LEFT PROPERTY IN TRUST, TO PAY OVER THE NET
INCOME TO HIS WIFE AS SOLE BENEFICIARY, AT SUCH TIMES AND IN SUCH
AMOUNTS AS SHE SHOULD DEEM BEST, DURING HER NATURAL LIFE.  SHE ELECTED
TO TAKE THE BEQUEST UNDER THE WILL IN LIEU OF HER DOWER OR STATUTORY
INTEREST.  AT THAT TIME SEVERAL CIRCUIT COURTS OF APPEALS HAD HELD THAT
IN THESE CIRCUMSTANCES, THE INCOME PAYMENTS TO THE WIDOW ARE ANNUITIES
PURCHASED BY SURRENDER OF THE DOWER INTEREST AND NOT TAXABLE AS INCOME
TO HER, UNTIL THEY EQUAL THE VALUE OF THE DOWER INTEREST.  WARNER V.
WALSH, 15 F.(2D) 367; UNITED STATES V. BOLSTER, 26 F.(2D) 760; ALLEN V.
BRANDEIS, 29 F.(2D) 363.  IN CONFORMITY TO THE RULING OF THESE
DECISIONS, THE BENEFICIARY DID NOT INCLUDE, IN HER 1928 TAX RETURN, ANY
PORTION OF THE INCOME RECEIVED BY HER FROM THE TRUST.  A DEFICIENCY
AGAINST THE TRUSTEES WAS ASSESSED BY THE COMMISSIONER BEFORE, AND WAS
PAID BY THEM, UNDER PROTEST, FROM INCOME OF THE TRUST, AFTER COLLECTION
FROM THE BENEFICIARY HAD BEEN BARRED BY THE STATUTE OF LIMITATIONS. 
AFTER THE STATUTE HAD RUN, THIS COURT HELD IN HELVERING V. BUTTERWORTH,
290 U.S. 365(INTERPRETING SEC. 219, REVENUE ACT OF 1924, C. 234, 43
STAT. 253, 275, CORRESPONDING TO SECS. 161, 162 OF THE REVENUE ACT OF
1928, C. 852, 45 STAT. 791, 838, UNDER WHICH THE PRESENT TAX WAS
ASSESSED) THAT THE INCOME WAS TAXABLE TO THE BENEFICIARY AND NOT TO THE
TRUSTEES. 

IN THE PRESENT SUIT, BROUGHT BY THE TRUSTEES TO RECOVER THE TAX AS
ERRONEOUSLY COLLECTED, THE COLLECTOR INTERPOSED THE DEFENSE, SUSTAINED
BY THE COURT BELOW, THAT THE TAX WHICH SHOULD HAVE BEEN PAID BY THE
BENEFICIARY EXCEEDED THAT PAID BY PETITIONERS, AND THAT, AS ANY
RECOVERY WOULD INURE TO THE ADVANTAGE OF THE BENEFICIARY, THE DEFENDANT
COULD SET OFF THE TAX DEBT DUE FROM HER.  ONE JUDGE CONCURRED, DENYING
THE RIGHT OF SET OFF IN VIEW OF THE BAR OF THE STATUTE, BUT HOLDING THE
PETITIONERS NOT ENTITLED, IN EQUITY AND GOOD CONSCIENCE, TO RECOVER. 

THE ACTION, BROUGHT TO RECOVER A TAX ERRONEOUSLY PAID, ALTHOUGH AN
ACTION AT LAW, IS EQUITABLE IN ITS FUNCTION.  IT IS THE LINEAL
SUCCESSOR OF THE COMMON COUNT IN INDEBITATUS ASSUMPSIT FOR MONEY HAD
AND RECEIVED.  ORIGINALLY AN ACTION FOR THE RECOVERY OF DEBT, FAVORED
BECAUSE MORE CONVENIENT AND FLEXIBLE THAN THE COMMON LAW ACTION OF
DEBT, IT HAS BEEN GRADUALLY EXPANDED AS A MEDIUM FOR RECOVERY UPON
EVERY FORM OF QUASI-CONTRACTUAL OBLIGATION IN WHICH THE DUTY TO PAY
MONEY IS IMPOSED BY LAW, INDEPENDENTLY OF CONTRACT, EXPRESS OR IMPLIED
IN FACT.  AMES, THE HISTORY OF ASSUMPSIT, 2 HARV. L. REV. 53; WOODWARD,
LAW OF QUASI-CONTRACTS, SEC. 2. 

ITS USE TO RECOVER UPON RIGHTS EQUITABLE IN NATURE TO AVOID UNJUST
ENRICHMENT BY THE DEFENDANT AT THE EXPENSE OF THE PLAINTIFF, AND ITS
CONTROL IN EVERY CASE BY EQUITABLE PRINCIPLES, ESTABLISHED BY LORD
MANSFIELD IN MOSES V. MACFERLAN, 2 BURR.  1005(K.B. 1750), HAVE LONG
BEEN RECOGNIZED IN THIS COURT.  SEE NASH V. TOWNE, 5 WALL.  689, 702;
GAINES V. MILLER, 111 U.S. 395, 397; ATLANTIC COAST LINE R. CO. V.
FLORIDA, 295 U.S. 301, 309.  IT IS AN APPROPRIATE REMEDY FOR THE
RECOVERY OF TAXES ERRONEOUSLY COLLECTED, ELLIOTT V. SWARTWOUT, 10 PET.
137, 156; CARY V. CURTIS, 3 HOW.  236, 246-250.  THE STATUTES
AUTHORIZING TAX REFUNDS AND SUITS FOR THEIR RECOVERY ARE PREDICATED
UPON THE SAME EQUITABLE PRINCIPLES THAT UNDERLIE AN ACTION IN ASSUMPSIT
FOR MONEY HAD AND RECEIVED.  UNITED STATES V. JEFFERSON ELECTRIC CO.,
291 U.S. 386, 402.  SINCE, IN THIS TYPE OF ACTION, THE PLAINTIFF MUST
RECOVER BY VIRTUE OF A RIGHT MEASURED BY EQUITABLE STANDARDS, IT
FOLLOWS THAT IT IS OPEN TO THE DEFENDANT TO SHOW ANY STATE OF FACTS
WHICH, ACCORDING TO THOSE STANDARDS, WOULD DENY THE RIGHT, MOSES V.
MACFERLAN, SUPRA, AT 1010; MYERS V. HURLEY MOTOR CO., 273 U.S. 18, 24;
CF. WINCHESTER V. HACKLEY, 2 CRANCH 342, EVEN WITHOUT RESORT TO THE
MODERN STATUTORY AUTHORITY FOR PLEADING EQUITABLE DEFENSES IN ACTIONS
WHICH ARE MORE STRICTLY LEGAL, JUD.  CODE, SEC. 274B; 28 U.S.C. SEC.
398. 

IN THE PRESENT CASE IT IS EVIDENT THAT BUT A SINGLE TAX WAS DUE UPON
THE PARTICULAR INCOME ASSESSED AND THAT PETITIONERS' DEMAND ARISES FROM
THE CIRCUMSTANCE THAT THE TAX WAS PAID FROM THE INCOME BY THE TRUSTEES
WHEN IT SHOULD HAVE BEEN PAID BY THE BENEFICIARY.  IF THE COURT MAY
HAVE REGARD TO THE FACT THAT SO FAR AS THE EQUITABLE RIGHTS OF THE
PARTIES ARE CONCERNED PETITIONERS, IN SEEKING RECOVERY OF THE TAX, ARE
ACTING FOR THE ACCOUNT OF THE BENEFICIARY, IT WOULD SEEM CLEAR THAT THE
CASE IS NOT ONE IN WHICH THE PETITIONERS ARE ENTITLED TO RECOVER EX
AEQUO ET BONO; FOR UNDER THE CONSTRUCTION OF THE WILL BY THE COURT
BELOW, WHICH WE ADOPT, ANY RECOVERY IN THIS ACTION WILL BE INCOME TO
THE BENEFICIARY, AND WILL DEPRIVE THE GOVERNMENT OF A TAX TO WHICH IT
IS JUSTLY ENTITLED AND ENABLE THE BENEFICIARY TO ESCAPE A TAX WHICH SHE
SHOULD HAVE PAID. 

IT IS SAID THAT AS THE REVENUE LAWS TREAT THE TRUSTEE AND THE
BENEFICIARY AS DISTINCT TAX-PAYING ENTITIES, A COURT OF EQUITY MUST
SHUT ITS EYES TO THE FACT THAT IN THE REALM OF REALITY IT WAS THE
BENEFICIARY'S MONEY WHICH PAID THE TAX AND IT IS HER MONEY WHICH THE
PETITIONERS ASK THE GOVERNMENT TO RETURN.  FORMERLY, TRUSTEE AND CESTUI
QUE TRUST WERE LIKEWISE DISTINCT IN THE EYES OF THE LAW, AS THEY ARE
TODAY FOR MANY PURPOSES.  BUT WHENEVER THE TRUSTEE BRINGS SUIT IN A
COURT WHICH IS FREE TO CONSIDER EQUITABLE RIGHTS AND DUTIES, HIS RIGHT
TO MAINTAIN THE SUIT MAY BE ENLARGED OR DIMINISHED BY REFERENCE TO THE
FACT THAT THE SUIT, THOUGH MAINTAINED IN THE NAME OF THE TRUSTEE ALONE,
IS FOR THE BENEFIT AND IN THE EQUITABLE INTEREST OF THE CESTUI. 

HE CAN SUE TO SET ASIDE HIS OWN VOLUNTARY CONVEYANCE AND IMPEACH IT
AS A BREACH OF TRUST KNOWN TO THE TRANSFEREE, BECAUSE THE ACTION,
BROUGHT TO RECOVER PROPERTY FOR THE TRUST ESTATE, WILL INURE TO THE
ADVANTAGE OF THE INNOCENT BENEFICIARY.  WETMORE V. PORTER, 92 N.Y. 76;
ZIMMERMAN V. KINKLE, 108 N.Y. 282, 15 N.E. 407; ATWOOD V. LESTER, 20
R.I. 660, 665, PARTICULARLY AT 669; 40 ATL. 866, 868, 870; FRANCO V.
FRANCO, 3 VES.  JR. 75; AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW
OF TRUSTS, SEC. 294.  FN1  HIS SUIT TO RECOVER A DEBT DUE HIM AS
TRUSTEE, AND PAYABLE BY HIM OVER TO THE CESTUI, IS SUBJECT TO THE
EQUITABLE DEFENSE THAT THE CESTUI HAS DISCHARGED THE CLAIM, MCBRIDE V.
WRIGHT, 46 MICH. 265(COOLEY, J.); 9 N.W. 275; SMITH V. BROWN, 5 RICH. 
EQ. (S.C.)  291; AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW OF
TRUSTS, SEC. 328.  THAT THE CESTUI OWES A LIKE AMOUNT CAN BE SHOWN BY
WAY OF EQUITABLE PLEA IN SET-OFF, CAMPBELL V. HAMILTON, FED. CAS. NO.
2,359; WADDLE V. HARBECK, 33 IND. 231, 234; WARD V. MARTIN, 3 T.B.
MON.  (19 KY.)  18; DRIGGS V. ROCKWELL, 11 WEND.  (N.Y.)  504, 508;
WOLF V. BEALES, 6 SERG.  & R. (PA.)  242, 243; AGRA & MASTERMAN'S BANK
V. LEIGHTON, L.R. 2 EX. 56, 65; AMERICAN LAW INSTITUTE, RESTATEMENT OF
THE LAW OF TRUSTS, SEC. 329.  IN AN ACTION IN GENERAL ASSUMPSIT, THIS
DEFENSE MAY BE SHOWN UNDER THE PLEA OF NON-ASSUMPSIT, COMPARE
WINCHESTER V. HACKLEY, SUPRA. 

IN SUCH CASES EQUITY DOES NOT COUNTENANCE THE IDLE CEREMONY OF
ALLOWING RECOVERY BY THE TRUSTEE ONLY TO COMPEL HIM TO ACCOUNT TO THE
BENEFICIARY WHO WOULD THEN HAVE TO PAY THE PROCEEDS TO THE ORIGINAL
DEFENDANT.  TO AVOID THIS CIRCUITY OF ACTION A COURT OF EQUITY TAKES
COGNIZANCE OF THE IDENTITY IN INTEREST OF TRUSTEE AND CESTUI QUE
TRUST.  LIKEWISE HERE, THE FACT THAT THE PETITIONERS AND THEIR
BENEFICIARY MUST BE REGARDED AS DISTINCT LEGAL ENTITIES FOR PURPOSES OF
THE ASSESSMENT AND COLLECTION OF TAXES DOES NOT DEPRIVE THE COURT OF
ITS EQUITY POWERS OR ALTER THE EQUITABLE PRINCIPLES WHICH GOVERN THE
TYPE OF ACTION WHICH PETITIONERS HAVE CHOSEN FOR THE ASSERTION OF THEIR
CLAIM. 

EQUITABLE CONCEPTIONS OF JUSTICE COMPEL THE CONCLUSION THAT THE
RETENTION OF THE TAX MONEY WOULD NOT RESULT IN ANY UNJUST ENRICHMENT OF
THE GOVERNMENT.  ALL AGREE THAT A TAX ON THE INCOME SHOULD BE PAID, AND
THAT IF THE TRUSTEES ARE PERMITTED TO RECOVER NO ONE WILL PAY IT.  IT
IS IN THE PUBLIC INTEREST THAT NO ONE SHOULD BE PERMITTED TO AVOID HIS
JUST SHARE OF THE TAX BURDEN EXCEPT BY POSITIVE COMMAND OF LAW, WHICH
IS LACKING HERE.  NO INJUSTICE IS DONE TO THE TRUSTEES OR THE
BENEFICIARY BY WITHHOLDING FROM THE TRUSTEES MONEY WHICH IN EQUITY IS
THE BENEFICIARY'S, AND WHICH THE GOVERNMENT RECEIVED IN PAYMENT OF A
TAX WHICH WAS HERS TO PAY.  A SINGLE ERROR ON THE PART OF THE TAXING
AUTHORITIES, EXCUSABLE IN VIEW OF PERSISTENT JUDICIAL DECLARATIONS, HAS
CAUSED BOTH THE UNDERASSESSMENT OF ONE TAXPAYER AND THE OVERASSESSMENT
OF THE OTHER.  BUT THE ERROR HAS NOT INCREASED THE TAX BURDEN OF
EITHER, FOR WHETHER THE TAX IS PAID BY ONE OR THE OTHER, ITS SOURCE IS
THE FUND WHICH SHOULD PAY THE TAX, AND ONLY THE EQUITABLE OWNER OF THE
FUND IS ULTIMATELY BURDENED.  CF. UNITED STATES PAPER ASSN. V. BOWERS,
80 F.(2D) 82.  SINCE IN EQUITY THE ONE TAXPAYER REPRESENTS AND ACTS FOR
THE OTHER, IT IS NOT FOR EITHER TO COMPLAIN THAT THE GOVERNMENT HAS
TAKEN FROM ONE WITH ITS RIGHT HAND, WHEN IT HAS, BECAUSE OF THE SAME
ERROR, GIVEN TO THE OTHER WITH ITS LEFT. 

PETITIONERS CONTEND THAT RECOVERY IS PRECLUDED BY SEC. 275(A) OF THE
REVENUE ACT OF 1928, WHICH BARS A "PROCEEDING IN COURT  ...  FOR THE
COLLECTION" OF A TAX AFTER THE PRESCRIBED PERIOD, AND BY SECS. 607,
609, WHICH ARE SAID TO PROHIBIT "CREDIT OF AN OVERPAYMENT AGAINST A
BARRED DEFICIENCY."  SECTION 607 PROVIDES THAT ANY TAX ASSESSED OR PAID
AFTER THE EXPIRATION OF THE PERIOD OF LIMITATION SHALL BE CONSIDERED AN
OVERPAYMENT, AND SEC. 609 DECLARES THAT A CREDIT AGAINST A LIABILITY,
IN RESPECT OF ANY TAXABLE YEAR, SHALL BE VOID "IF ANY PAYMENT IN
RESPECT OF SUCH LIABILITY WOULD BE CONSIDERED AN OVERPAYMENT UNDER

THESE PROVISIONS LIMIT THE COLLECTION OF A TAX, AND PREVENT THE
RETENTION OF ONE PAID AFTER IT IS BARRED BY THE STATUTE.  THEY
PRECLUDE, IN A SUIT BY THE TAXPAYER AGAINST THE COLLECTOR OR THE
GOVERNMENT, RELIANCE ON A CLAIM AGAINST THE TAXPAYER, BARRED BY
STATUTE, AS A SET-OFF, OR COUNTERCLAIM.  BUT THE DEMAND MADE UPON THE
TRUSTEES WAS NOT BARRED BY LIMITATION AND IT WOULD BE AN UNREASONABLE
CONSTRUCTION OF THE STATUTE, NOT CALLED FOR BY ITS WORDS, TO HOLD THAT
IT IS INTENDED TO DEPRIVE THE GOVERNMENT OF DEFENSES BASED ON SPECIAL
EQUITIES ESTABLISHING ITS RIGHT TO WITHHOLD A REFUND FROM THE DEMANDING
TAXPAYER.  THE STATUTE DOES NOT OVERRIDE A DEFENSE BASED ON THE
ESTOPPEL OF THE TAXPAYER.  R.H. STEARNS CO. V. UNITED STATES, 291 U.S.
54, 61, 62.  THE STATUTORY BAR TO THE RIGHT OF ACTION FOR THE
COLLECTION OF THE TAX DOES NOT PREVENT RELIANCE UPON A DEFENSE WHICH IS
NOT A SET-OFF OR A COUNTERCLAIM, BUT IS AN EQUITABLE REASON, GROWING
OUT OF THE CIRCUMSTANCES OF THE ERRONEOUS PAYMENT, WHY PETITIONERS
OUGHT NOT TO RECOVER. 

HERE THE DEFENSE IS NOT A COUNTER DEMAND ON PETITIONERS, BUT A DENIAL
OF THEIR EQUITABLE RIGHT TO UNDO A PAYMENT WHICH, THOUGH EFFECTED BY AN
ERRONEOUS PROCEDURE, HAS RESULTED IN NO UNJUST ENRICHMENT TO THE
GOVERNMENT, AND IN NO INJURY TO PETITIONERS OR THEIR BENEFICIARY.  THE
GOVERNMENT, BY RETAINING THE TAX PAID BY THE TRUSTEES, IS NOT REVIVING
A STALE CLAIM.  ITS DEFENSE, WHICH INHERES IN THE CAUSE OF ACTION, IS
COMPARABLE TO AN EQUITABLE RECOUPMENT OR DIMINUTION OF PETITIONERS'
RIGHT TO RECOVER.  "SUCH A DEFENSE IS NEVER BARRED BY THE STATUTE OF
LIMITATIONS SO LONG AS THE MAIN ACTION ITSELF IS TIMELY."  BULL V.
UNITED STATES, 295 U.S. 247, 262; WILLIAMS V. NEELY, 134 FED. 1, 13. 
FN2  COMPARE UNITED STATES V. MACDANIEL, 7 PET. 1, 16, 17; UNITED
STATES V. RINGGOLD, 8 PET. 150, 163, 164, WHERE EQUITABLE RECOUPMENT
AGAINST A CLAIM BY THE GOVERNMENT WAS ALLOWED NOTWITHSTANDING THE
IMMUNITY OF THE GOVERNMENT FROM SUIT.  AFFIRMED. 

FN1  IT HAS BEEN HELD THAT IN SUCH A SUIT EQUITY WILL NOT PERMIT THE
GRANTEE TO SET UP THE STATUTE OF LIMITATIONS ORDINARILY APPLICABLE TO A
SUIT BY THE TRUSTEE IF THE TRUSTEE CAN SHOW THAT THE BENEFICIARY,
BECAUSE OF IGNORANCE OF THE BREACH OF TRUST OR BECAUSE OF DISABILITY,
WOULD NOT HAVE BEEN BARRED BY LACHES HAD HE BROUGHT SUIT DIRECTLY. 
BRIDGMAN V. GILL, 24 BEAV.  302; DUCKETT V. MECHANICS BANK, 86 MD. 400,
411; 38 ATL. 983.    FN2  "...  ADMITTING THAT THE STATUTE APPLIES
STRICTLY TO MATTERS OF SET-OFF AND COUNTERCLAIM ...  STILL, AS IS WELL
KNOWN, IT DOES NOT AFFECT THE MERITS OF THE CONTROVERSY."  AULTMAN &
TAYLOR CO. V. MEADE, 121 KY. 241, 247; 89 S.W. 137.  ACCORD:  HART V.
CHURCH, 126 CAL. 471, 479; 58 PAC. 910; WILHITE V. HAMRICK, 92 IND.
594, 599; BUTLER V. CARPENTER, 163 MO. 597, 604; 63 S.W. 823; EVANS V.
YONGUE, 8 RICH.  LAW (S.C.)  113; STATE V. TANNER, 45 WASH. 348; 88
PAC. 321. 

REPORTER'S NOTE.  - THE OPINION OF THE COURT IN THE FOREGOING CASE IS
PRINTED AS AMENDED BY ORDER OF OCTOBER 11, 1937.    MR. JUSTICE ROBERTS
IS OF THE OPINION THAT THE JUDGMENT SHOULD BE REVERSED. 
..END :
















U.S. EX REL. GIRARD CO. V. HELVERING, 301 U.S. 540 


NO. 285.  ARGUED APRIL 29, 1937.  - DECIDED MAY 24, 1937.  - 66 APP.
D.C. 64 - 85 F.(2D) 230, AFFIRMED. 


1.  THE BOARD OF TAX APPEALS HAS NO JURISDICTION TO ORDER A REFUND OR
CREDIT OF TAX OVERPAYMENTS; ITS JURISDICTION IS LIMITED TO THE
DETERMINATION OF THE AMOUNT OF DEFICIENCY OR OVERPAYMENT.  P. 542. 

2.  IN A SUIT FOR A TAX REFUND, THE COMMISSIONER MAY SECURE A FINAL
ADJUDICATION OF HIS RIGHT TO WITHHOLD THE OVERPAYMENT, DETERMINED BY
THE BOARD OF TAX APPEALS, ON THE GROUND THAT OTHER TAXES ARE DUE FROM
THE TAXPAYER, OR THAT THE TAXPAYER IS NOT EQUITABLY ENTITLED TO A
REFUND.  PP. 542-543. 

3.  MANDAMUS WILL NOT LIE WHERE THE RIGHT OF THE PETITIONER IS NOT
CLEAR, AND THE DUTY OF THE OFFICER, PERFORMANCE OF WHICH IS TO BE
COMMANDED, IS NOT PLAINLY DEFINED AND PEREMPTORY.  P. 543. 

4.  MANDAMUS WILL NOT LIE TO COMPEL THE COMMISSIONER OF INTERNAL
REVENUE TO REFUND TAXES, PAID BY A TESTAMENTARY TRUSTEE ON INCOME OF
THE TRUST, WHEN THE AMOUNT REFUNDED WOULD INURE TO THE BENEFIT OF THE
CESTUI QUE TRUST, WHO SHOULD HAVE PAID THE TAX, NOW BARRED BY THE
STATUTE OF LIMITATIONS.  THE CASE IS ONE FOR AN ORDINARY ACTION FOR
REFUND.  PP. 543-544. 

UNITED STATES EX REL. GIRARD TRUST CO., TRUSTEE, V. HELVERING,
COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 300 U.S. 643, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING A PETITION FOR MANDAMUS. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE ASKED TO DETERMINE WHETHER MANDAMUS IS THE PROPER
REMEDY TO COMPEL THE COMMISSIONER OF INTERNAL REVENUE TO REFUND TAXES,
PAID BY A TESTAMENTARY TRUSTEE ON INCOME OF THE TRUST WHEN THE AMOUNT
REFUNDED WOULD INURE TO THE BENEFIT OF THE CESTUI QUE TRUST, WHO SHOULD
HAVE PAID THE TAX, NOW BARRED BY THE STATUTE OF LIMITATIONS. 

THE TESTATOR BY HIS WILL CREATED A TRUST TO PAY OVER NET INCOME TO
HIS WIDOW DURING HER LIFE.  SHE ELECTED TO TAKE UNDER THE WILL IN LIEU
OF THE INTEREST OTHERWISE ALLOWED BY PENNSYLVANIA LAW.  THE REFUND
DEMANDED IS FOR TAXES ASSESSED AGAINST PETITIONER, THE TRUSTEE, AND
PAID BY IT UPON THE NET INCOME PAID OVER TO THE BENEFICIARY FOR THE
YEARS 1924 TO 1926, INCLUSIVE, AND FOR THE YEAR 1928. 

AS A RESULT OF DEFICIENCY PROCEEDINGS THE BOARD OF TAX APPEALS HAS
ENTERED FINAL ORDERS DETERMINING THAT THE AMOUNTS PAID BY THE TRUSTEE
AS TAXES FOR THOSE YEARS ARE OVERPAYMENTS.  THE BENEFICIARY PAID TAXES
ON THE INCOME PAID OVER TO HER BY THE TRUSTEE FOR THE YEARS 1924 TO
1927 INCLUSIVE, BUT THESE WERE AFTERWARD REFUNDED TO HER IN RECOGNITION
OF THE RULE THEN FOLLOWED BY SEVERAL COURTS OF APPEALS THAT IN THESE
CIRCUMSTANCES THE INCOME PAYMENTS TO THE WIDOW ARE ANNUITIES PURCHASED
BY HER SURRENDER OF HER DOWER INTEREST WHICH ARE NOT TAXABLE AS INCOME
TO HER, UNTIL THEY EQUAL THE VALUE OF THE DOWER INTEREST.  WARNER V.
WALSH, 15 F.(2D) 367; UNITED STATES V. BOLSTER, 26 F.(2D) 760; ALLEN V.
BRANDEIS, 29 F.(2D) 363.  SEE STONE V. WHITE, DECIDED THIS DAY, ANTE,
P. 532.  SHE PAID NO TAX ON THE INCOME FOR THE YEAR 1928. 

BY OUR DECISION IN HELVERING V. BUTTERWORTH, 290 U.S. 365, IT WAS
ESTABLISHED THAT THE INCOME PAID OVER TO THE WIDOW IS TAXABLE TO HER
AND NOT TO THE TRUSTEE, AND IN CONSEQUENCE THAT THE TAX, WHICH IN THIS
CASE SHOULD HAVE BEEN PAID BY THE BENEFICIARY, HAD BEEN ERRONEOUSLY
COLLECTED FROM THE TRUSTEE.  IT APPEARS THAT THE TOTAL AMOUNT OF THE
TAXES WHICH THE BENEFICIARY SHOULD HAVE PAID EXCEEDS THE AMOUNT OF THE
REFUND DEMANDED OF THE COMMISSIONER, AND THAT THE REFUND, IF ALLOWED,
WILL BECOME A PART OF THE INCOME OF THE BENEFICIARY. 

THE PRESENT PETITION FOR MANDAMUS TO COMPEL RESPONDENT, THE
COMMISSIONER OF INTERNAL REVENUE, TO REFUND TO PETITIONER THE TAXES
ERRONEOUSLY COLLECTED, WAS DISMISSED BY THE SUPREME COURT OF THE
DISTRICT.  THE COURT OF APPEALS AFFIRMED, HOLDING THAT THE PETITIONER
WAS NOT EQUITABLY ENTITLED TO THE REFUND WHICH, IF ALLOWED, WOULD INURE
TO THE BENEFIT OF THE WIDOW, WHOSE LIABILITY FOR THE TAX IS BARRED BY
THE STATUTE OF LIMITATIONS.  66 APP. D.C. 64; 85 F.(2D) 230.  WE
GRANTED CERTIORARI, THE QUESTIONS DECIDED BY THE COURT OF APPEALS BEING
COGNATE TO THOSE CONSIDERED IN STONE V. WHITE, SUPRA. 

THE GOVERNMENT, WHILE SUPPORTING THE DECISION OF THE COURT BELOW ON
THE MERITS, INSISTS THAT THE CASE IS NOT A PROPER ONE FOR THE USE OF
THE EXTRAORDINARY WRIT OF MANDAMUS, AND THAT THE SUIT SHOULD HAVE BEEN
DISMISSED ON THAT GROUND.  THE PETITION FOR MANDAMUS IS PREDICATED UPON
THE DETERMINATION OF THE BOARD OF TAX APPEALS THAT PETITIONER HAS MADE
OVERPAYMENTS OF TAXES FOR THE SPECIFIED YEARS.  THE BOARD HAS NOT
ORDERED A REFUND.  IT COULD NOT RIGHTLY DO SO, FOR ITS JURISDICTION IS
LIMITED TO THE DETERMINATION OF THE AMOUNT OF DEFICIENCY OR
OVERPAYMENT, REVENUE ACT OF 1928, SECS. 272, 322(D), 507, UPON THE
PETITION OF THE TAXPAYER TO REVIEW A DEFICIENCY ASSESSMENT BY THE
COMMISSIONER.  THE BOARD IS WITHOUT AUTHORITY TO ORDER A REFUND OR A
CREDIT, ALTHOUGH ITS DECISION IS RES ADJUDICATA AS TO THE QUESTIONS
INVOLVED IN THE COMPUTATION AND ASSESSMENT OF TAXES FOR WHICH A
DEFICIENCY IS CLAIMED.  CF. OLD COLONY TRUST CO. V. COMMISSIONER, 279
U.S. 716, 726-727.  WHEN THE DETERMINATION OF OVERPAYMENT BY THE BOARD
BECOMES FINAL, THE STATUTE PROVIDES THAT SUCH AMOUNTS SHALL BE REFUNDED
OR CREDITED, SEC. 322(D), AND UPON THE COMMISSIONER'S FAILURE TO COMPLY
WITH THE STATUTE, A PLENARY SUIT WILL LIE IN THE DISTRICT COURT OR THE
COURT OF CLAIMS, FOR THE RECOVERY OF ANY REFUND TO WHICH HE IS
ENTITLED.  SEE NATIONAL FIRE INSURANCE CO. V. UNITED STATES, 52 F.(2D)
1011, 1013-1014; JAMES V. UNITED STATES, 38 F.(2D) 140, 143; OHIO STEEL
FOUNDRY CO. V. UNITED UNITED STATES, 38 F.(2D) 144, 148-149.  AND IN
SUCH A SUIT THE COMMISSIONER MAY SECURE A FINAL ADJUDICATION OF HIS
RIGHT TO WITHHOLD THE OVERPAYMENT DETERMINED BY THE BOARD, ON THE
GROUND THAT OTHER TAXES ARE DUE FROM THE TAXPAYER, OR THAT UPON OTHER
GROUNDS HE IS NOT EQUITABLY ENTITLED TO THE REFUND.  SEE STONE V.
WHITE, SUPRA; WELCH V. OBISPO OIL CO., ANTE, P. 190; LEWIS V. REYNOLDS,
284 U.S. 281; CROCKER V. MALLEY, 249 U.S. 223. 

IN VIEW OF WHAT WE HAVE JUST DECIDED IN STONE V. WHITE, SUPRA, IT IS
EVIDENT THAT IN THE CIRCUMSTANCES OF THIS CASE THERE IS NO CLEAR DUTY
OF THE COMMISSIONER TO REFUND THE TAX WITHOUT SECURING A FINAL
ADJUDICATION OF THE GOVERNMENT'S RIGHT TO RETAIN IT, AS HE MAY DO BY
INTERPOSING AN APPROPRIATE DEFENSE IN A SUIT FOR THE REFUND.  WHERE THE
RIGHT OF THE PETITIONER IS NOT CLEAR, AND THE DUTY OF THE OFFICER,
PERFORMANCE OF WHICH IS TO BE COMMANDED, IS NOT PLAINLY DEFINED AND
PEREMPTORY, MANDAMUS IS NOT AN APPROPRIATE REMEDY.  U.S. EX REL. GREAT
WESTERN R. CO. V. INTERSTATE COMMERCE COMM'N, 294 U.S. 50, 61; U.S. EX
REL. MCLENNAN V. WILBUR, 283 U.S. 414, 419-420; WILBUR V. U.S. EX REL.
KADRIE, 281 U.S. 206, 218-219; INTERSTATE COMMERCE COMM'N V. NEW YORK,
N.H. & H.R. CO., 287 U.S. 178, 203; U.S. EX REL. REDFIELD V. WINDOM,
137 U.S. 636, 644.  THE OFFICER MUST BE LEFT FREE, IN THE PERFORMANCE
OF OFFICIAL DUTY, TO DECIDE WHETHER HE WILL PERFORM THE ACT DEMANDED OR
SECURE BY APPROPRIATE PROCEDURE A JUDICIAL DETERMINATION OF THE EXTENT
OF HIS DUTY.  HIS DECISION "IS REGARDED AS INVOLVING THE CHARACTER OF
JUDGMENT OR DISCRETION," THE EXERCISE OF WHICH WILL NOT BE COMPELLED BY
MANDAMUS, WILBUR V. U.S. EX REL. KADRIE, SUPRA, 219.  U.S. EX REL. HALL
V. PAYNE, 254 U.S. 343, 347; U.S. EX REL. RIVERSIDE OIL CO. V.
HITCHCOCK, 190 U.S. 316, 324, 325; INTERSTATE COMMERCE COMM'N V. NEW
YORK, N.H. & H.R. CO., SUPRA. 

IT IS TRUE THAT THE RIGHT TO A WRIT OF MANDAMUS MAY TURN ON EQUITABLE
CONSIDERATIONS, AS THE COURT BELOW HELD.  U.S. EX REL. GREATHOUSE V.
DERN, 289 U.S. 352.  BUT TO TRY PETITIONER'S EQUITABLE RIGHT TO THE
REFUND HERE IS TO MAKE THE WRIT OF MANDAMUS SERVE THE PURPOSE OF AN
ORDINARY SUIT AND TO DEPART FROM THE SETTLED RULE THAT THE WRIT OF
MANDAMUS MAY NOT BE EMPLOYED TO SECURE THE ADJUDICATION OF A DISPUTED
RIGHT FOR WHICH AN ORDINARY SUIT AFFORDS A REMEDY EQUALLY ADEQUATE, AND
COMPLETE.  SEE EX PARTE BALDWIN, 291 U.S. 610, 619; REESIDE V. WALKER,
11 HOW.  272, 292; UNITED STATES V. DUELL, 172 U.S. 576, 582. 

AS WE CONCLUDE THAT THE ISSUE IS NOT ONE WHICH SHOULD BE ADJUDICATED
IN A PROCEEDING FOR MANDAMUS IT IS UNNECESSARY TO CONSIDER THE MERITS
AND THE JUDGMENT WILL BE AFFIRMED WITHOUT PREJUDICE TO ANY OTHER
APPROPRIATE PROCEEDING FOR THE REFUND OF THE TAX.  AFFIRMED. 

MR. JUSTICE ROBERTS IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
REVERSED. 
..END :











MANTLE LAMP CO. V. ALUMINUM CO., 301 U.S. 544 


NO. 765.  ARGUED MAY 3, 1937.  - DECIDED MAY 24, 1937.  - 86 F.(2D) 509,
AFFIRMED. 


PATENT NO. 1,435,199, TO BLAIR, CLAIM 1, FOR "A HEAT-INSULATED VESSEL
OF THE NON-VACUUM TYPE HAVING AN OUTER JACKET OF NON-FRANGIBLE
MATERIAL, AN INNER CONTAINER OF FRANGIBLE MATERIAL, SAID INNER
CONTAINER BEING BONDED TO AND PENDENTLY SUPPORTED FROM SAID JACKET, AND
HEAT-INSULATING AND SHOCK-ABSORBING MEANS SURROUNDING SAID CONTAINER
FOR LIMITING OSCILLATIONS OF SAID CONTAINER WHILE PERMITTING EXPANSION
THEREOF BY CHANGES OF TEMPERATURE," IS VOID FOR WANT OF INVENTION.  P.
546. 

MANTLE LAMP CO. V. ALUMINUM PRODUCTS CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 300 U.S. 651, TO REVIEW THE AFFIRMANCE OF A DECREE
DISMISSING A BILL IN A SUIT FOR INFRINGEMENT OF A PATENT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT FOR INFRINGEMENT OF CLAIMS 1, 3 TO 14, INCLUSIVE, 17,
18, AND 21 TO 24, INCLUSIVE, OF THE BLAIR PATENT NO. 1,435,199 FOR A
HEAT-INSULATED RECEPTACLE.  THE DISTRICT COURT HELD ALL OF THE CLAIMS
INVALID BY REASON OF LACK OF INVENTION, PRIOR INVENTION, ANTICIPATION,
AS BEING FOR AN AGGREGATION AND AS INVOLVING ONLY MECHANICAL SKILL. 
THAT COURT FURTHER LIMITED THE CLAIMS TO THE PARTICULAR STRUCTURE
DISCLOSED IN THE APPLICATION, AND, SO LIMITED, HELD THEM NOT
INFRINGED.  IT ALSO FOUND THAT UNREASONABLE DELAY IN FILING DISCLAIMERS
VOIDED ALL THE CLAIMS.  THE CIRCUIT COURT OF APPEALS AFFIRMED A DECREE
DISMISSING THE BILL.  FN1  WE GRANTED CERTIORARI BECAUSE OF A CONFLICT
OF DECISION. 

IN 1927 THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT HELD ALL
OF THE CLAIMS HERE IN SUIT, EXCEPT CLAIM 3, BAD FOR WANT OF INVENTION. 
FN2  IN 1931 THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT HELD
CLAIM 1 VALID AND INFRINGED "WITHOUT PREJUDICE TO ANY RIGHTS OF THE
PLAINTIFF UNDER ANY OTHER CLAIM."  FN3  INASMUCH AS THE CONFLICT IS
LIMITED TO CLAIM 1 WE RESTRICT OUR CONSIDERATION TO THAT CLAIM.  THE
CLAIM IS: 

"A HEAT-INSULATED VESSEL OF THE NON-VACUUM TYPE HAVING AN OUTER
JACKET OF NON-FRANGIBLE MATERIAL, AN INNER CONTAINER OF FRANGIBLE
MATERIAL, SAID INNER CONTAINER BEING BONDED TO AND PENDENTLY SUPPORTED
FROM SAID JACKET, AND HEAT-INSULATING AND SHOCK-ABSORBING MEANS
SURROUNDING SAID CONTAINER FOR LIMITING OSCILLATIONS OF SAID CONTAINER
WHILE PERMITTING EXPANSION THEREOF BY CHANGES OF TEMPERATURE." 

OVER THIRTY YEARS AGO CONTAINERS FOR KEEPING THEIR CONTENTS HOT OR
COLD BY THE USE OF A VACUUM CAME INTO GENERAL USE.  IT WAS FOUND
IMPRACTICAL TO MAKE SUCH CONTAINERS OF A CAPACITY IN EXCESS OF ONE
QUART OR PERHAPS TWO QUARTS.  FOR SOME YEARS THEREAFTER THERE WERE NO
SATISFACTORY INSULATED CONTAINERS OF LARGER SIZE.  IN 1919 BLAIR FILED
APPLICATION FOR A PATENT FOR A HEAT INSULATED RECEPTACLE OF THE NON
VACUUM TYPE, HIS OBJECT BEING ECONOMICALLY TO PRODUCE RELATIVELY LARGE
RECEPTACLES WHICH WOULD BE SANITARY AND EASY TO CLEAN, TO IMPROVE THEIR
INSULATION, TO MINIMIZE THE TRANSMISSION OF SHOCKS TO THE INNER
CONTAINER WHICH WAS OF GLASS OR OTHER FRAGILE SUBSTANCE.  AS DISCLOSED
BY THE CLAIM IN QUESTION HE PROPOSED TO MAKE A JUG OR PAILLIKE
CONTAINER THE OUTER JACKET OF WHICH WOULD BE OF IRON OR SIMILAR RIGID
MATERIAL.  WITHIN THIS THERE WAS AN INNER CONTAINER OF GLASS (OR, AS IN
THE COMMERCIAL ARTICLE, OF EARTHENWARE) BONDED TO AND PENDENTLY
SUPPORTED FROM THE OUTER JACKET.  BETWEEN THE INNER AND OUTER MEMBERS
COMMINUTED MATERIAL, SUCH AS GROUND CORK, WAS TO BE INSERTED FOR
INSULATING THE INNER CONTAINER, LIMITING ITS OSCILLATIONS AND
PERMITTING ITS EXPANSION DUE TO CHANGES OF TEMPERATURE. 

WE PASS THE QUESTIONS OF INFRINGEMENT AND FAILURE PROMPTLY TO
DISCLAIM AFTER THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT HAD
HELD THE CLAIMS INVALID IN 1927, SINCE WE HOLD THAT THE PATENT DOES NOT
DISCLOSE INVENTION. 

WE ARE OF OPINION THAT ALL THE ELEMENTS OF THE PATENT WERE OLD AND
AGGREGATION OF THEM DID NOT INVOLVE THE EXERCISE OF INVENTIVE GENIUS
BUT OF MECHANICAL ADAPTATION CONTAINERS COMPRISING AN INNER RECEPTACLE
AND AN OUTER CASING, THE INTERSPACE FILLED WITH COMMINUTED MATERIAL,
WERE OLD.  THE PACKING OF THE SPACE HAD BEEN PRACTICED BOTH TO PROTECT
THE INNER CONTAINER FROM SHOCK AND TO INSULATE IT.  THE PENDULANT
SUPPORT OF THE INNER MEMBER BY THE CASING WAS OLD.  SUCH PENDULANT
SUPPORT HAD BEEN SUPPLIED BY SCREWING THE THREADED NECK OF THE GLASS
CONTAINER INTO THE THREADED NECK OF THE CASING, BY SUPERIMPOSING AN
ANNULAR FLANGE ON THE ONE OVER A CORRESPONDING FLANGE ON THE OTHER, AND
BY OTHER MECHANICAL MEANS.  THE PETITIONER SAYS, HOWEVER, THAT NOVELTY
AND INVENTION ARE FOUND IN THE USE OF A BOND TO UNITE THE INNER AND
OUTER MEMBERS.  AS TO THIS ITS BRIEF STATES:  "THE PATENTEE SAYS IN HIS
PATENT THAT HE PREFERS TO USE THE ADHERENT BOND DESCRIBED BUT THE
DISCLOSURE OF THE PATENT IS NOT SO LIMITED AND IS BROAD ENOUGH TO
INCLUDE ANY BOND EITHER A MECHANICAL OR AN ADHERENT BOND."  IT IS ALSO
SAID THAT THE BOND SHOWN IN THE DRAWINGS AND DESCRIBED IN THE
SPECIFICATIONS ACTS AS A SEAL AT THE NECK OF THE CONTAINER TO PREVENT
LIQUIDS FROM SEEPING INTO THE INSULATING MATERIAL AND IMPAIRING ITS
USEFULNESS.  ACCEPTING THE VIEW THAT TO BOND TWO ARTICLES CAN SIGNIFY
NO MORE THAN TO UNITE THEM FIRMLY BY ANY MEANS, WE FIND IN THE PRIOR
ART THE BONDING OF CONTAINER AND CASING BY MECHANICAL MEANS AND BY THE
USE OF CEMENT AND PLASTER OF PARIS.  INVENTION CANNOT INHERE IN BLAIR'S
EMPLOYMENT OF EITHER MODE OF UNION.  THE CLAIM SAYS NOTHING ABOUT THE
SEALING EFFECT OF THE BOND, BUT IF INTERPRETATION OF THE CLAIM BY
REFERENCE TO THE SPECIFICATION MIGHT SUPPLY THIS ELEMENT, THE PRIOR ART
SHOWS INSTANCES OF SUCH SEALING BY THE USE OF AN IMPERVIOUS BINDING
MATERIAL SUCH AS CEMENT, AND EARLIER PATENTS CLAIM THIS SEALING AS AN
ELEMENT OF THE INVENTION DESCRIBED. 

IN SHORT, ANYONE FAMILIAR WITH THE PRIOR ART NEEDED ONLY BY EXERCISE
OF MECHANICAL SKILL TO COMBINE KNOWN METHODS AND STRUCTURES AND SO
ATTAIN THE COMBINATION EXHIBITED IN THE PATENT.  THE JUDGMENT IS
AFFIRMED. 

FN1  86 F.(2D) 509. 

FN2  MACOMB MFG. CO. V. MANTLE LAMP CO., 22 F.(2D) 93; MONARCH CO. V.
MANTLE LAMP CO., 22 F.(2D) 95. 

FN3  MANTLE LAMP CO. V. GEORGE H. BOWMAN CO., 53 F.(2D) 441. 
..END :
























STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548 


NO. 837.  ARGUED APRIL 8, 9, 1937.  - DECIDED MAY 24, 1937.  - 89 F.(2D)
207, AFFIRMED. 


1.  THE TAX IMPOSED BY TITLE IX OF THE SOCIAL SECURITY ACT OF AUGUST
14, 1935, UPON THE EMPLOYER OF LABOR, DESCRIBED AS "AN EXCISE TAX WITH
RESPECT TO HAVING INDIVIDUALS IN HIS EMPLOY," AND WHICH IS MEASURED BY
PRESCRIBED PERCENTAGES OF THE TOTAL WAGES PAYABLE BY THE EMPLOYER
DURING THE CALENDAR YEAR, IS EITHER AN "EXCISE," A "DUTY," OR AN
"IMPOST," WITHIN THE INTENT OF ART. I, SEC. 8, OF THE CONSTITUTION, AND
COMPLIES WITH THE REQUIREMENT OF UNIFORMITY THROUGHOUT THE UNITED
STATES.  PP. 578, 583. 

2.  THE ENJOYMENT OF COMMON RIGHTS, SUCH AS THE RIGHT TO EMPLOY
LABOR, MAY CONSTITUTIONALLY BE TAXED.  P. 578. 

SUCH TAXATION WAS PRACTICED IN ENGLAND AND AMONG THE COLONIES BEFORE
THE ADOPTION OF THE CONSTITUTION.  P. 579. 

3.  THE FACT THAT THE SOCIAL SECURITY ACT, TITLE IX, SUPRA, EXEMPTS
FROM THE TAX EMPLOYERS OF LESS THAN EIGHT, AND DOES NOT APPLY IN
RESPECT OF AGRICULTURAL LABOR, DOMESTIC SERVICE IN PRIVATE HOMES, AND
SOME OTHER CLASSES OF EMPLOYMENT DOES NOT RENDER IT OBNOXIOUS TO THE
FIFTH AMENDMENT.  P. 584. 

A CLASSIFICATION SUPPORTED BY CONSIDERATIONS OF PUBLIC POLICY AND
PRACTICAL CONVENIENCE, WHICH WOULD BE VALID UNDER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT IF ADOPTED BY A STATE, IS LAWFUL, A
FORTIORI, IN THE LEGISLATION OF CONGRESS, SINCE THE FIFTH AMENDMENT
CONTAINS NO EQUAL PROTECTION CLAUSE. 

4.  THE PROCEEDS OF THE TAX IMPOSED ON EMPLOYERS BY TITLE IX OF THE
SOCIAL SECURITY ACT, SUPRA, GO INTO THE TREASURY OF THE UNITED STATES
WITHOUT EARMARK, LIKE INTERNAL REVENUE COLLECTIONS GENERALLY.  THE
TAXPAYER IS ENTITLED TO CREDIT AGAINST THE FEDERAL TAX (UP TO 90%
THEREOF) WHAT HE HAS CONTRIBUTED DURING THE TAX YEAR UNDER A STATE
UNEMPLOYMENT LAW, PROVIDED THAT THE STATE LAW SHALL HAVE BEEN CERTIFIED
BY THE FEDERAL SOCIAL SECURITY BOARD TO THE SECRETARY OF THE TREASURY
AS SATISFYING CERTAIN CONDITIONS DESIGNED TO ASSURE THAT THE STATE LAW
IS GENUINELY AN UNEMPLOYMENT COMPENSATION LAW AND THAT CONTRIBUTIONS
WILL BE USED SOLELY IN THE PAYMENT OF COMPENSATION AND BE PROTECTED
AGAINST LOSS AFTER THE PAYMENT TO THE STATE.  TO THESE ENDS, TITLE IX
PROVIDES, AMONG OTHER THINGS, THAT, TO BE APPROVED BY THE FEDERAL
COMMISSION, THE STATE LAW SHALL DIRECT THAT ALL MONEY RECEIVED IN THE
STATE UNEMPLOYMENT FUND SHALL IMMEDIATELY UPON SUCH RECEIPT BE PAID
OVER TO THE SECRETARY OF THE TREASURY TO THE CREDIT OF AN "UNEMPLOYMENT
TRUST FUND," AND THAT ALL MONEY WITHDRAWN FROM THE UNEMPLOYMENT TRUST
FUND BY THE STATE AGENCY SHALL BE USED SOLELY IN THE PAYMENT OF
COMPENSATION, EXCLUSIVE OF EXPENSES OF ADMINISTRATION.  THE SECRETARY
IS EMPOWERED TO INVEST IN GOVERNMENT SECURITIES ANY PORTION OF THIS
FUND WHICH, IN HIS JUDGMENT, IS NOT REQUIRED TO MEET CURRENT
WITHDRAWALS; AND OUT OF IT HE IS DIRECTED TO PAY TO ANY COMPETENT STATE
AGENCY SUCH SUMS AS IT MAY DULY REQUISITION FROM THE AMOUNT STANDING TO
ITS CREDIT.  THE TAXPAYER'S CREDIT AGAINST THE FEDERAL TAX DEPENDS ON
COMPLIANCE WITH THESE STATUTORY CONDITIONS; THE STATE, HOWEVER, IS
UNDER NO CONTRACTUAL OBLIGATION TO COMPLY, BUT AT ITS PLEASURE MAY
REPEAL ITS UNEMPLOYMENT LAW, AND WITHDRAW ITS DEPOSIT FROM THE FEDERAL
TREASURY.  HELD: 

(1)  ASSUMING THAT THE FEDERAL TAX CANNOT BE TREATED AS A REVENUE
PROVISION STANDING APART, BUT MUST BE TESTED IN COMBINATION WITH THE
90% CREDIT PROVISION, THE TAX IS NOT VOID AS INVOLVING AN
UNCONSTITUTIONAL ATTEMPT TO COERCE THE STATES TO ADOPT UNEMPLOYMENT
COMPENSATION LEGISLATION APPROVED BY THE FEDERAL GOVERNMENT.  P. 585. 

(2)  THE PROBLEM OF UNEMPLOYMENT IS NATIONAL AS WELL AS LOCAL; AND IN
PROMOTION OF THE GENERAL WELFARE MONEYS OF THE NATION MAY BE USED TO
RELIEVE THE UNEMPLOYED AND THEIR DEPENDENTS IN ECONOMIC DEPRESSIONS AND
TO GUARD AGAINST SUCH DISASTERS.  P. 586. 

(3)  TITLE IX MAY BE SUSTAINED AS A COOPERATIVE PLAN WHEREBY STATES
MAY BE SET FREE TO PROVIDE UNEMPLOYMENT COMPENSATION WITHOUT SUBJECTING
THEMSELVES TO ECONOMIC DISADVANTAGES RESULTING FROM THE ABSENCE OF SUCH
PROVISION IN OTHER STATES; AND WHEREBY, THROUGH THE ASSUMPTION OF SUCH
BURDENS BY THE STATES GENERALLY, THE FINANCIAL BURDEN OF THE NATION DUE
TO UNEMPLOYMENT MAY BE CORRESPONDINGLY DECREASED.  P. 587. 

DUPLICATED TAXES, OR BURDENS THAT APPROACH THEM, ARE HARDSHIPS THAT
GOVERNMENT, STATE OR NATIONAL, MAY PROPERLY AVOID.  P. 589. 

(4)  EVERY REBATE FROM A TAX, WHEN CONDITIONED UPON CONDUCT, IS IN
SOME MEASURE A TEMPTATION; BUT MOTIVE OR TEMPTATION IS NOT EQUIVALENT
TO COERCION.  P. 589. 

(5)  IF IT BE TRUE TO SAY THAT A POWER AKIN TO UNDUE INFLUENCE MAY BE
EXERTED BY THE NATIONAL GOVERNMENT ON THE STATES, THE LOCATION OF THE
POINT AT WHICH PRESSURE TURNS INTO COMPULSION, AND CEASES TO BE
INDUCEMENT, WOULD BE A QUESTION OF DEGREE,  - AT TIMES, PERHAPS, OF
FACT.  THE POINT HAD NOT BEEN REACHED WHEN ALABAMA BY PASSING HER
UNEMPLOYMENT COMPENSATION LAW EVINCED HER CHOICE TO HAVE RELIEF
ADMINISTERED UNDER LAWS OF HER OWN MAKING, BY AGENTS OF HER OWN
SELECTION, INSTEAD OF UNDER FEDERAL LAWS, ADMINISTERED BY FEDERAL
OFFICERS.  P. 589. 

IT IS ONE THING TO IMPOSE A FEDERAL TAX DEPENDENT UPON THE CONDUCT OF
THE TAXPAYERS, OR OF THE STATE IN WHICH THEY LIVE, WHERE THE CONDUCT TO
BE STIMULATED OR DISCOURAGED IS UNRELATED TO THE FISCAL NEED SUBSERVED
BY THE TAX IN ITS NORMAL OPERATION, OR TO ANY OTHER END LEGITIMATELY
NATIONAL.  IT IS QUITE ANOTHER THING TO SAY THAT A TAX WILL BE ABATED
UPON THE DOING OF AN ACT THAT WILL SATISFY THE FISCAL NEED, THE TAX AND
THE ALTERNATIVE BEING APPROXIMATE EQUIVALENTS.  IN SUCH CIRCUMSTANCES,
IF IN NO OTHERS, INDUCEMENT OR PERSUASION DOES NOT GO BEYOND THE BOUNDS
OF POWER.  P. 591. 

5.  NO SURRENDER OF POWERS ESSENTIAL TO THE QUASI-SOVEREIGN EXISTENCE
OF STATES IS REQUIRED BY SEC. 903 OF TITLE IX OF THE SOCIAL SECURITY
ACT, WHICH DEFINES THE MINIMUM CRITERIA TO WHICH A STATE COMPENSATION
SYSTEM IS REQUIRED TO CONFORM IF IT IS TO BE ACCEPTED BY THE SOCIAL
SECURITY BOARD AS THE BASIS FOR CREDITS AGAINST THE TAXES LAID ON
EMPLOYERS BY THAT TITLE; NOR BY SEC. 904, WHICH DEALS WITH THE DEPOSIT,
INVESTMENT AND WITHDRAWAL OF THE MONEYS CREDITED.  P. 593. 

6.  SEMBLE THAT THE STATES MAY CONSTITUTIONALLY MAKE WITH CONGRESS
SUCH AGREEMENTS AS DO NOT IMPAIR THE ESSENCE OF THEIR STATEHOOD.  P.
597. 

7.  TITLE III OF THE SOCIAL SECURITY ACT, WHICH APPROPRIATES NO MONEY
BUT AUTHORIZES THE MAKING OF FUTURE APPROPRIATIONS FOR THE PURPOSE OF
ASSISTING THE STATES IN THE ADMINISTRATION OF THEIR UNEMPLOYMENT
COMPENSATION LAWS, IS SEVERABLE FROM TITLE IX AND ITS VALIDITY IS NOT
IN ISSUE.  P. 598. 

STEWARD MACHINE CO. V. DAVIS, COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

THIS WAS A REVIEW, ON CERTIORARI, 300 U.S. 652, OF A JUDGMENT OF THE
COURT BELOW AFFIRMING THE DISMISSAL OF THE COMPLAINT IN AN ACTION FOR
THE RECOVERY OF MONEY PAID BY THE PLAINTIFF AS A TAX UNDER TITLE IX OF
THE SOCIAL SECURITY ACT.  SUMMARY FROM THE BRIEF: 

THE FEDERAL ACT IS SO LACKING IN PRECEDENT THAT OUR ARGUMENT IS TO A
LARGE EXTENT DEVOTED TO THE HISTORY OF THE LEGISLATION IN ORDER TO SHOW
THAT CONGRESS SEIZED ON THE TAXING POWER MERELY AS A PRETEXT TO PROVIDE
THIS PLAN FOR UNEMPLOYMENT.  IN THE HISTORY OF THE ACT, FROM ITS
INCEPTION IN THE PRESIDENT'S MESSAGE TO ITS FINAL PASSAGE, NO IMPORTANT
QUESTIONS WERE OVERLOOKED. 

AS A DEVICE, THE TWO-WAY SYSTEM WAS ADOPTED.  NO ONE COULD RAISE THE
QUESTION OF THE VALIDITY OF THE TAX, OR CHALLENGE AN APPROPRIATION. 
AND THE TAX CLUB WAS SUFFICIENT TO DRIVE THE STATES INTO LINE.  THE FEW
STANDARDS SURROUNDING THE GRANTS WOULD BE SUFFICIENT TO ASSURE CONTROL
OF THE SYSTEM.  IF THE FEDERAL ACT SHOULD BE HELD UNCONSTITUTIONAL, THE
STATE ACTS WOULD CONTINUE TO OPERATE.  SO THE FEDERAL-STATE SYSTEM WAS
LAUNCHED, IN PREFERENCE TO THE NATIONAL SYSTEM BY WHICH THE FEDERAL
GOVERNMENT WOULD ADMINISTER THE ENTIRE PLAN, AND IN PREFERENCE TO THE
SUBSIDY PLAN, BY WHICH THE GOVERNMENT WOULD COLLECT ALL THE TAXES AND
SUBSIDIZE THE STATES. 

INDEED, ARGUED THE PROPONENTS OF THE MEASURE, THE COURT CANNOT LOOK
INTO THE MOTIVE OF CONGRESS, PROVIDED THE POWER EXERCISED BE
CONSTITUTIONAL.  AND CERTAINLY, THE IMPOSITION OF AN EXCISE TAX IS
CONSTITUTIONAL.  BUT HERE THE MOTIVE IS NOT CONCEALED.  IT STANDS OUT,
STARKLY REVEALING THE TAXING POWER AS A MERE PRETEXT. 

WHAT REASONABLE RELATIONSHIP TO THE TAXING POWER OF CONGRESS CAN THIS
MEASURE BE SAID TO SUSTAIN?  IT IS NOT INTENDED THAT ONE DOLLAR OF THE
PAYROLL TAXES SHALL BE USED FOR THE GENERAL PURPOSES OF GOVERNMENT.  IN
MAGNANO CO. V. HAMILTON, 292 U.S. 40, THIS COURT SAID THAT THE
REQUIREMENT THAT A TAX BE FOR A PUBLIC PURPOSE "HAS REGARD TO THE USE
WHICH IS TO BE MADE OF THE REVENUE DERIVED FROM THE TAX."  THE ENTIRE
TAX RESULTING FROM THE CHILD LABOR TAX ACT, WHICH IS PART OF THE
REVENUE ACT OF 1919(40 STAT. 1057), FOUND ITS WAY TO THE TREASURY TO BE
DISBURSED FOR THE PURPOSES OF GOVERNMENT; YET FROM THE OPINION OF THIS
COURT WE MAY WELL INFER THAT THE PROVISIONS OF THE ACT WERE NOT
NATURALLY AND REASONABLY ADAPTED TO THE COLLECTION OF THE TAX, BUT
"SOLELY TO THE ACHIEVEMENT OF SOME OTHER PURPOSE PLAINLY WITHIN STATE
POWER."  259 U.S. 20, 43.  LIKEWISE IN THE FUTURE TRADING ACT (42 STAT.
187), THE TAX WENT INTO THE TREASURY.  IN HILL V. WALLACE, 259 U.S. 44,
THIS COURT SAID THAT THE MANIFEST PURPOSE OF THE ACT WAS TO COMPEL
BOARDS OF TRADE TO COMPLY WITH REGULATIONS "MANY OF WHICH CAN HAVE NO
RELEVANCY TO THE COLLECTION OF THE TAX AT ALL."  CF. LINDER V. UNITED
STATES, 268 U.S. 5, CONSIDERING THE HARRISON NARCOTIC ACT AS AMENDED BY
THE REVENUE ACT OF 1919(40 STAT. 1057, 1130).  OTHER CASES INVOLVING
REASONABLE RELATIONSHIP OF ACTS TO THE CONSTITUTIONAL POWER UNDER WHICH
THEY WERE CLAIMED TO ARISE ARE: NEWBERRY V. UNITED STATES, 256 U.S.
232, 258, REGULATING PRIMARY ELECTIONS FOR UNITED STATES SENATORS;
HOWARD V. ILLINOIS CENTRAL R. CO., 207 U.S. 463, 502-503, FIRST
EMPLOYERS' LIABILITY ACT; KELLER V. UNITED STATES, 213 U.S. 138, 144,
IMMIGRATION LAW; AND CHILD LABOR CASE, 247 U.S. 251. 

THE DECLARATION THAT INVALIDITY OF ONE PART OF THE ACT SHALL NOT
AFFECT THE REMAINDER IS AN AID IN DETERMINING THE LEGISLATIVE INTENT,
"BUT IS NOT AN INEXORABLE COMMAND."  RAILROAD RETIREMENT BOARD V. ALTON
R. CO., 295 U.S. 330, 362.  THIS COURT CANNOT REWRITE THE STATUTE AND
GIVE IT AN EFFECT ALTOGETHER DIFFERENT FROM THAT SOUGHT BY THE MEASURE
VIEWED AS A WHOLE.  CARTER V. CARTER COAL CO., 298 U.S. 239. 

IT IS OBVIOUS FROM THE HISTORY OF THE ACT THAT CONGRESS WAS NOT
SEEKING TAXES FOR THE TREASURY; IT WAS PROVIDING A PLAN FOR
UNEMPLOYMENT.  WITHOUT THE PLAN THE TAX WOULD NOT HAVE BEEN IMPOSED. 
WITH THE PLAN THE ENTIRE ACT FALLS. 

GRANTS TO STATES CONTAINED IN PRIOR ACTS OF CONGRESS FURNISH NO
PRECEDENT FOR TITLE III OF THIS ACT. 

WHILE CONGRESS LATELY MAY HAVE SPENT BILLIONS OF DOLLARS FOR RELIEF,
WHICH IS THE PRIMARY BURDEN AND DUTY OF THE STATES, THE QUESTION OF THE
CONSTITUTIONALITY OF WHICH IS DIFFICULT, IF NOT IMPOSSIBLE, TO RAISE IN
THE COURTS, THIS SPENDING CANNOT NOW BE USED TO ARM CONGRESS WITH THE
POWER TO IMPOSE UNLAWFUL BURDENS ON THE STATES, IN ORDER TO COMPEL THEM
TO REFILL THE FEDERAL TREASURY AND IN ORDER TO ENCOURAGE THEM TO ASSUME
THEIR PROPER BURDENS IN THE FUTURE. 

IT IS UNDENIABLE THAT BY THIS LEGISLATION THE STATES WERE ACTUALLY
COMPELLED TO COMPLY WITH THE DEMANDS OF CONGRESS. 

NO GRANT BY CONGRESS IS JUSTIFIED IF ITS NON-ACCEPTANCE RESULTS IN A
PENALTY.  IF THE STATES DO NOT COMPLY, THEIR CITIZENS ARE COMPELLED TO
SUPPLY MILLIONS OF DOLLARS TO BE USED FOR THE ADMINISTRATION OF
AGENCIES IN OTHER STATES THAT SUBMIT. 

THE SYSTEM DENIES DUE PROCESS OF LAW TO EMPLOYERS OF EIGHT OR MORE BY
REQUIRING THE STATES TO IMPOSE ON THIS GROUP A TAX FOR THE PURPOSE OF
PAYING BENEFITS TO INDIVIDUALS WHO ARE UNEMPLOYED. 

EXTRACTS FROM ORAL ARGUMENT OF MR. WYZANSKI: 

THE TAX IS COLLECTED IN EXACTLY THE SAME WAY AS ANY OTHER INTERNAL
REVENUE TAX.  IT IS PAID TO APPROPRIATE TREASURY OFFICIALS, AND THERE
ARE THE USUAL PROVISIONS WITH RESPECT TO PENALTIES, REFUNDS, AND
INTEREST.  AGAINST THE TAX THERE IS ALLOWED A CREDIT FOR THE AMOUNT
WHICH THE TAXPAYER PAYS INTO A FUND CREATED UNDER STATE LAW. 

THE STATE UNEMPLOYMENT COMPENSATION LAW, IN ORDER TO SERVE AS THE
BASIS FOR THE CREDIT, MUST MEET CERTAIN STANDARDS WHICH ARE ENUMERATED
IN SEC. 903A. 

THE STANDARDS DESCRIBE WHAT IS AN UNEMPLOYMENT COMPENSATION LAW. 
THEY ARE DEFINITIONAL STANDARDS. 

THE AMOUNTS WHICH ARE COLLECTED BY STATES AS UNEMPLOYMENT
COMPENSATION CONTRIBUTIONS, AND WHICH ARE CLAIMED AS DEDUCTIONS FROM
THE FEDERAL TAX, ARE COLLECTED IN THE FIRST INSTANCE BY THE STATE
COLLECTORS, THEN DEPOSITED IN THE UNEMPLOYMENT TRUST FUND IN THE UNITED
STATES TREASURY, AND THERE HELD SEPARATE AND APART FROM THE REGULAR
FUNDS OF THE GOVERNMENT.  HENCE IT MAY BE SAID THAT NONE OF THE MONEY
OF THE FEDERAL GOVERNMENT IS UTILIZED FOR UNEMPLOYMENT COMPENSATION. 
THE MONEY WHICH THE STATES HAVE LEFT ON DEPOSIT IN A TRUST FUND IS
UTILIZED FOR UNEMPLOYMENT COMPENSATION. 

NOW, TITLE IX IS THE ONLY TITLE WHICH IMPINGES ON THE PETITIONER IN
THIS CASE.  HE CLAIMS, HOWEVER, THAT TITLE III IS ALSO INVOLVED.  THAT
TITLE IS NOT AN APPROPRIATION STATUTE.  IT IS AN AUTHORITY TO
APPROPRIATE. 

THE MONEY WHICH IS APPROPRIATED UNDER THAT TITLE IS UTILIZED FOR
GRANTS IN AID OR SUBVENTIONS TO STATES FOR USE IN CONNECTION WITH
ADMINISTRATION EXPENSES OF THEIR UNEMPLOYMENT COMPENSATION LAWS. 
AGAIN, YOU WILL NOTICE THAT THE MONEY IS NOT USED DIRECTLY OR
INDIRECTLY FOR UNEMPLOYMENT-COMPENSATION BENEFITS.  IT IS A GRANT IN
AID OR A SUBVENTION FOR THE ADMINISTRATION OF AN UNEMPLOYMENT
COMPENSATION LAW. 

(FOLLOWED AN EXEGESIS OF ECONOMIC CONDITIONS WHICH FURNISHED THE
OCCASION FOR THIS EXERCISE OF CONGRESSIONAL TAXING POWERS.) 

NO ONE CLAIMS THAT UNEMPLOYMENT COMPENSATION IS A COMPLETE PANACEA,
OR WILL MEET ALL THE NEEDS IN PERIODS OF CYCLICAL DEPRESSION; BUT AT
THE SAME TIME IT IS POINTED OUT THAT IF UNEMPLOYMENT-COMPENSATION
SYSTEMS ARE SET UP PROMPTLY THERE WILL NOT BE THE EXHAUSTION OF LOCAL
RESOURCES IN ADVANCE OF A CYCLICAL DEPRESSION.  SO THAT WHEN THE DAY OF
THE CYCLICAL DEPRESSION COMES, THE INDIVIDUAL WORKERS WILL HAVE FUNDS,
STATES AND LOCAL GOVERNMENTS WILL HAVE FUNDS, AND WILL NOT BE FORCED IN
THE FACE OF A RESISTANT BOND MARKET, TAX DELINQUENCY, AND OTHER FACTORS
WHICH ARE ALWAYS PRESENT IN A DEPRESSION, TO RAISE THE SUMS WHICH ARE
NECESSARY TO TAKE CARE OF THE UNEMPLOYED. 

THE FEDERAL LAW DOES NOT SET UP UNEMPLOYMENT COMPENSATION, BUT IT
DOES ESTABLISH, AS A CONDITION FOR THE CERTIFICATION OF A STATE LAW,
THAT THE STATE LAW SHALL PROVIDE THAT BENEFITS SHALL BE PAID THROUGH
PUBLIC EMPLOYMENT EXCHANGES.  NOW, IF A BENEFIT IS PAID IN THAT WAY, AS
IT IS IN ALL COUNTRIES ABROAD WHERE THERE IS UNEMPLOYMENT COMPENSATION,
THE CONSEQUENCE IS THAT WHEN THE WORKER COMES TO THE OFFICE, HE IS
OFFERED A JOB.  IF HE TURNS DOWN THE JOB, HE DOES NOT GET A CHANCE TO
GET HIS BENEFIT.  IN OTHER WORDS, YOU IMMEDIATELY TEST HIS WILLINGNESS
TO WORK. 

UNEMPLOYMENT COMPENSATION IS COMPENSATION FOR AN INDUSTRIAL ACCIDENT,
JUST AS WORKMEN'S COMPENSATION IS COMPENSATION FOR INDUSTRIAL
ACCIDENTS. 

THE DIFFICULTIES WITH THE STATE'S GOING ALONE WERE NUMEROUS.  IN THE
FIRST PLACE, IT WAS FELT THAT IF A STATE WENT ALONE, THE ECONOMIC
DISADVANTAGE WOULD BE MATERIAL FOR ITS OWN EMPLOYERS.  THAT POINT WAS
BROUGHT OUT AGAIN AND AGAIN BY THE MANUFACTURERS' ASSOCIATIONS AND BY
VARIOUS GROUPS WHO HAD THE INTERESTS OF THE EMPLOYERS AS WELL AS THE
GENERAL PUBLIC AT HEART. 

MOREOVER, IT WAS FELT THAT IF A STATE WENT AHEAD ALONE IT COULD NOT
PROTECT ITSELF BY AN EMBARGO, UNDER THE DECISION OF THE COURT IN
BALDWIN V. SEELIG, 294 U.S. 511, WHICH WELL ILLUSTRATES THE POINT.  IT
MIGHT NOT EVEN INCLUDE WITHIN ITS SYSTEM, IF IT WERE A TAX SYSTEM,
EMPLOYERS ENGAGED IN INTERSTATE COMMERCE, OR EMPLOYEES WHO WERE ENGAGED
IN INTERSTATE COMMERCE.  IT WAS ALSO FELT THAT IN THIS FIELD THE
TECHNICAL RESOURCES OF A SINGLE STATE WERE SO INADEQUATE THAT IT MIGHT
BE DANGEROUS TO PROCEED WITHOUT THE BENEFIT OF TECHNICAL ADVICE
FURNISHED BY SOME MORE WEALTHY GOVERNMENT THAN THE STATE GOVERNMENTS. 
TO SOLVE THIS DILEMMA, THREE DIFFERENT PROPOSALS WERE ACTUALLY BROUGHT
FORWARD.  ONE SUGGESTED THAT THE RELIEF SYSTEM OF THE UNITED STATES BE
TRANSMUTED INTO AN UNEMPLOYMENT-COMPENSATION SYSTEM, AND THAT THE
FEDERAL GOVERNMENT, INSTEAD OF GIVING OUT MONEY FOR RELIEF, GIVE OUT
MONEY FOR UNEMPLOYMENT COMPENSATION ON THE BASIS OF THE WILLINGNESS OF
THE WORKER TO TAKE A JOB. 

THE SECOND SUGGESTION WAS THAT THERE SHOULD BE LAID A SPECIAL TAX,
THE FUNDS TAKEN INTO THE FEDERAL TREASURY, AND THEN GIVEN TO THE STATES
BY SUBVENTIONS OR GRANTS-IN-AID. 

THE THIRD SUGGESTION WAS THAT A SPECIAL TAX BE IMPOSED BY THE FEDERAL
GOVERNMENT WITH A CREDIT AGAINST THE TAX FOR THE AMOUNTS WHICH
INDIVIDUAL TAXPAYERS HAD CONTRIBUTED TO STATE UNEMPLOYMENT-COMPENSATION
FUNDS.  NOW, IT IS THE THIRD METHOD THAT WAS ADOPTED BY CONGRESS, AND
THAT METHOD WAS CHOSEN FOR REASONS OF POLICY AND REASONS OF LAW.  IT
WAS FELT THAT THIS SYSTEM GAVE TO THE STATES IN A NEW FIELD AN
OPPORTUNITY TO DECIDE WHETHER OR NOT THEY WANTED AN UNEMPLOYMENT
COMPENSATION SYSTEM, FREE FROM THE FEAR OF COMPETITIVE DISADVANTAGE. 
IT WAS RECOGNIZED THAT IF THE STATES CHOSE TO GO AHEAD THEY MIGHT GO
AHEAD IN ANY ONE OF A NUMBER OF WAYS AND SERVE AS LABORATORIES FOR
SOCIAL EXPERIMENTATION.  IT WAS FURTHER FELT THAT THESE LOCAL SYSTEMS
WOULD PROMOTE LOCAL INITIATIVE, LOCAL RESPONSIBILITY, AND WOULD RESULT
IN VIGILANCE WITH RESPECT TO THE FUNDS; THAT IS, LOCAL PEOPLE WOULD
WATCH HOW LOCAL MONEY WAS BEING SPENT.  QUITE APART FROM THOSE
CONSIDERATIONS OF POLICY, CONGRESS CHOSE THIS METHOD, FOR SOME REASONS
OF LAW. 

NOW, THE REASON IN LAW WHY THIS PARTICULAR METHOD WAS CHOSEN WAS THAT
THERE WAS A PRECEDENT IN THE REVENUE ACT OF 1926, DEALING WITH THE
FEDERAL ESTATE TAX, CONSIDERED BY THIS COURT IN FLORIDA V. MELLON, 273
U.S. 12.  (COUNSEL THEN DISCUSSED THE APPLICABILITY OF THAT DECISION.) 

THE TAX IS LAID UPON THE PRIVILEGE OF RECEIVING SERVICES,  - ON THE
"FUNCTION OF EMPLOYMENT."  REGARDED AS A TAX UPON THE RECEIPT OF
SERVICES, IT IS QUITE ANALOGOUS TO THE TAX ON THE RECEIPT OF PROPERTY,
CONSIDERED IN KNOWLTON V. MOORE, 178 U.S. 41.  REGARDED AS A TAX ON
DOING BUSINESS IN A CERTAIN FORM, IT IS QUITE ANALOGOUS TO THE
CORPORATE TAX SUSTAINED IN FLINT V. STONE TRACY CO., 220 U.S. 107. 

THERE IS AN ENGLISH PRECEDENT FOR THIS TAX ANTEDATING THE
CONSTITUTION OF THE UNITED STATES.  IN 1777 PARLIAMENT PASSED A TAX
LEVYING UPON EMPLOYERS OF DOMESTIC SERVANTS A TAX OF 21 SHILLINGS PER
DOMESTIC SERVANT, AS DESCRIBED IN CERTAIN CATEGORIES, AND THAT TAX OF
1777 WAS REENACTED IN SUBSTANTIALLY THE SAME FORM, IN 1803, 1812, 1853,
AND 1869, AND IS STILL ON THE BOOKS IN ENGLAND; AND THE TAX IS
SPECIFICALLY DENOMINATED AN EXCISE TAX, IN SOME OF THOSE STATUTES. 

THIS TAX SATISFIED THE CONSTITUTIONAL CANON OF UNIFORMITY AS LAID
DOWN IN FLORIDA V. MELLON, 273 U.S. 12; POE V. SEABORN, 282 U.S. 101;
AND KNOWLTON V. MOORE, 178 U.S. 41. 

THE TAX ON ITS FACE HAS ALL THE INDICIA OF A TAX, AND AS IT RAISES
SUBSTANTIAL REVENUE, IT SHOULD BE SUSTAINED AS A REVENUE MEASURE
WITHOUT FURTHER INQUIRY.  ALL THE CASES, FROM VEAZIE BANK V. FENNO, 8
WALL.  533, TO THE SONZINSKY CASE, 300 U.S. 506, SUPPORT THIS
POSITION.  IF AN INQUIRY IS MADE INTO THE POLICIES OF THIS TAX, THEY
ARE REASONABLE, RELATE TO THE POWER CONFERRED, AND HAVE BEEN EXECUTED
IN THE MANNER PROVIDED IN ART. I, SEC. 8, CL. 1, OF THE CONSTITUTION. 
CONGRESS HAD TWO POLICIES IN MIND, ONE OF AVOIDING DOUBLE TAXATION IN A
STATE WHICH BY A LAW WAS TAXING EMPLOYERS, AND THIS IS A POLICY WHICH
IS REASONABLY RELATED TO THIS CONSTITUTIONAL PROVISION.  DOUBLE
TAXATION WAS INDEED REFERRED TO BY HAMILTON, IN THE THIRTY-THIRD PAPER
IN THE FEDERALIST, AND ALSO BY EDMUND RANDOLPH IN THE VIRGINIA
CONSTITUTIONAL CONVENTION.  EACH SAID THAT THEY EXPECTED THE UNION
WOULD SO APPLY ITS TAXES AS NOT TO DOUBLE UP ON THE SAME SUBJECT WHICH
HAD BEEN SELECTED, OR MIGHT BE SELECTED, BY A STATE.  CF. HENNEFORD V.
SILAS MASON CO., 300 U.S. 577; FLORIDA V. MELLON, 273 U.S. 12.    THE
OTHER POLICY, RELATED TO THE TAXING AND SPENDING POWERS, WHICH SUPPORTS
THIS LEGISLATION, CONCERNS THE GENERAL WELFARE.  THE POWER GRANTED IS
THE POWER "TO TAX FOR THE PURPOSE OF PROVIDING FUNDS FOR PAYMENT OF THE
NATION'S DEBTS AND MAKING PROVISION FOR THE GENERAL WELFARE."  BUTLER
CASE.  "MAKING PROVISION" MEANS TO MAKE A FINANCIAL PROVISION, AND THAT
IS WHAT THIS STATUTE DOES. 

UNEMPLOYMENT COMPENSATION WILL MEET THE BREAKDOWN WHICH TAKES PLACE
IN THE FAMILY OF THE INDIVIDUAL WORKER WHO IS UNEMPLOYED, THE
CUMULATIVE EFFECT OF UNEMPLOYMENT UPON HIS HEALTH AND UPON THE HEALTH
OF HIS FAMILY.  THE EFFECT OF UNEMPLOYMENT UPON CRIME AND VAGRANCY IS
OBVIOUS; SO IS THE EFFECT UPON THE TAXPAYER.  WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379, 399.  THE FEDERAL GOVERNMENT IS STILL SPENDING
VAST SUMS FOR RELIEF, AND WE SAY THAT SINCE THIS ACT WILL OPERATE TO
RELIEVE THE DRAIN UPON THE FEDERAL TREASURY, AND WILL PROVIDE FUNDS FOR
THE GENERAL WELFARE, IT IS REASONABLY RELATED TO THE POLICIES AND
PURPOSES OF THE TAXING CLAUSE. 

BUT THE QUESTION MAY BE RAISED, CAN THESE POLICIES BE CARRIED OUT BY
A TAX AND CREDIT?  TO THAT WE CITE AS AN ANSWER FLORIDA V. MELLON, FOR
THERE THE POLICIES WHICH CONGRESS HAD IN MIND WERE CARRIED OUT BY A TAX
AND CREDIT SUBSTANTIALLY LIKE THE ONE HERE INVOLVED, AND A TAX AND
CREDIT WHICH WAS IN THE MIND OF CONGRESS WHEN THIS LEGISLATION WAS
ENACTED. 

WHEN THE CONSTITUTION WAS ADOPTED THE FRAMERS HAD IN MIND THREE
DIFFERENT METHODS OF RAISING REVENUE FOR THE GENERAL WELFARE OF THE
UNITED STATES.  THE FIRST WAS DIRECT FEDERAL TAXATION COLLECTED BY
FEDERAL OFFICERS.  THE SECOND WAS THAT THE FEDERAL GOVERNMENT LAY THE
TAX BUT THE COLLECTION BE BY THE STATE OFFICERS.  THE THIRD METHOD IS
THAT THE STATES RAISE THE REVENUE FOR THE GENERAL WELFARE OF THE UNITED
STATES.  THAT METHOD IS DESCRIBED BY HAMILTON.  FEDERALIST NO. 36. 
OLIVER ELLSWORTH AND ROGER SHERMAN POINTED OUT THAT THE COLLECTING
AUTHORITY OF THE UNITED STATES NEED NOT BE EXERCISED IF EACH STATE WILL
FURNISH ITS QUOTA. 

THIS METHOD OF WHICH I AM SPEAKING WAS IN FACT UTILIZED BY CONGRESS
IN THE AMENDMENT WHICH WAS PASSED ON MAY 13, 1862, TO THE ACT OF AUG.
5, 1861, PROVIDING FOR DIRECT TAXES. 

THE DIRECT TAX IS, OF COURSE, A TAX UPON THE INDIVIDUAL.  BUT THE
1862 AMENDMENT TO THE 1861 DIRECT TAX PROVIDED THAT THE DIRECT TAX UPON
THE INDIVIDUAL MIGHT BE ASSUMED BY THE STATE IN WHICH HE LIVED, AND
MIGHT BE PAID BY THE STATE, NOT TO THE TREASURY DIRECTLY BUT BY
PAYMENTS TOWARD RAISING TROOPS AND SUPPLYING TROOPS WITH THEIR
EQUIPMENT - IN OTHER WORDS, AS A CREDIT AGAINST INDIVIDUAL DIRECT
TAXES, THERE WAS ALLOWED THE AMOUNT WHICH THE STATE EXPENDED FOR THE
PURPOSE OF ENROLLING AND SUPPLYING TROOPS.  THAT IS VERY SIMILAR TO
THIS SITUATION WHERE, AS A CREDIT AGAINST AN INDIVIDUAL PERSON'S TAX,
THERE IS ALLOWED THE AMOUNT WHICH HE CONTRIBUTES TO THE STATE FOR
UNEMPLOYMENT COMPENSATION, WHICH TAKES CARE OF THE GENERAL WELFARE OF
THE UNITED STATES. 

WE POINT OUT THAT THE CONSTITUTION DOES NOT SAY WHO SHALL PROVIDE FOR
THE GENERAL WELFARE.  OF COURSE, IT MEANS THAT FUNDS SHALL BE PROVIDED
FOR THE GENERAL WELFARE, BUT IT DOES NOT SAY THAT THE UNITED STATES
SHALL PROVIDE THE FUNDS, AND THERE IS NO MORE REASON FOR READING IN THE
WORDS "UNITED STATES" IN THAT CLAUSE THAN THERE WAS IN MASSACHUSETTS V.
MELLON FOR READING IN A RESTRICTION WHICH WOULD HAVE REQUIRED THE
APPLICATION OF THE FUNDS TO BE BY THE UNITED STATES. 

I TURN NOW FROM THAT FIRST MAJOR INQUIRY AS TO THE POWER HERE
EXERCISED, TO THE QUESTION WHETHER THE EXERCISE OF THE POWER MEETS THE
STANDARDS LAID DOWN IN THE FIFTH AMENDMENT, AND I BEGIN BY POINTING OUT
THAT THIS COURT HAS SAID, IN MAGNANO V. HAMILTON, 292 U.S. 40, AND AT
OTHER TIMES, THAT THE FIFTH AMENDMENT IS RARELY APPLIED TO RESTRAIN THE
EXERCISE OF THE FEDERAL TAXING POWER.  IT HAS BEEN SUGGESTED THAT THERE
ARE THREE DIFFERENT ATTACKS WHICH MIGHT BE MADE UPON THIS TAX UNDER THE
FIFTH AMENDMENT.  FIRST, IT IS SAID IT IS TAKING MONEY FROM ONE GROUP
AND GIVING IT TO ANOTHER.  AS A MATTER OF FACT, THIS TAX DOES NOT WORK
THAT WAY AT ALL.  THIS TAX COLLECTS MONEY FROM INDIVIDUALS AND PUTS IT
INTO THE FEDERAL TREASURY, TO BE USED FOR ANY PURPOSE WHATSOEVER. 
MOREOVER, EVEN IF YOU TAKE INTO ACCOUNT THE 90 PER CENT. CREDIT, AND
SAY THAT ALL THE MONEY RAISED IS USED TO PAY FOR THOSE WHO ARE OUT OF
JOBS, TO PAY BENEFITS TO THEM, WE SAY THAT THAT PAYMENT IS PROPER UNDER
THE DUE PROCESS CLAUSE. 

IT IS SAID IN THE SECOND PLACE THAT THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT IS VIOLATED BY THE SELECTIONS OF THE TAX.  FLINT V.
STONE TRACY CO. LAYS DOWN THE FAMILIAR RULE THAT THE FEDERAL GOVERNMENT
HAS A LARGE MEASURE OF CHOICE WITH RESPECT TO SELECTION OF TAXABLE
SUBJECTS.  IT IS SAID, HOWEVER, THAT WE HAD NO RIGHT TO SELECT
EMPLOYERS OF EIGHT OR MORE, WHILE LEAVING EMPLOYERS OF LESS THAN EIGHT
UNTAXED.  JEFFREY MFG. CO. V. BLAGG, 235 U.S. 571, INVOLVED THE OHIO
WORKMEN'S COMPENSATION ACT, WHICH APPLIED ONLY TO EMPLOYERS OF FIVE OR
MORE, AND QUONG WING V. KIRKENDALL, 223 U.S. 59, RELATED TO LAUNDRY
WORKERS WHERE MORE THAN TWO WERE EMPLOYED.  ST. LOUIS CONSOLIDATED COAL
CO. V. ILLINOIS, 185 U.S. 203, RELATED TO REGULATION OF MINES WHERE
MORE THAN FIVE WERE INVOLVED.  THE POWER OF CLASSIFICATION WHICH EXISTS
WITH RESPECT TO TAXES IS CERTAINLY BROADER THAN THAT WHICH EXISTS WITH
RESPECT TO THE POLICE POWER, AS YOUR HONORS HAVE POINTED OUT IN
CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385.  BUT QUITE APART
FROM THAT GENERAL DOCTRINE, I REFER TO A TABLE WHICH WILL BE FOUND AT
PAGE 66 OF OUR BRIEF, WHICH SHOWS THAT UNEMPLOYMENT OCCURS TO A GREATER
EXTENT IN LARGE THAN IN SMALL ESTABLISHMENTS.  IN ESTABLISHMENTS WHERE
1 TO 20 ARE EMPLOYED THE FIGURES SHOW THAT THE MAN-HOURS WORKED FELL
OFF ONLY ABOUT 3 PER CENT.; WHEREAS IN THOSE WHICH EMPLOYED FROM 20 TO
100 WORKERS THEY FELL OFF SOME 13.8 PER CENT. AND THEY FELL OFF EVEN
MORE IN ESTABLISHMENTS LARGER THAN 100.  MOREOVER, THERE ARE CERTAIN
ADMINISTRATIVE REASONS WHICH WOULD HAVE JUSTIFIED TAXING EMPLOYERS OF
EIGHT OR MORE AND NOT TAXING EMPLOYERS OF LESS THAN EIGHT.  THE
BOOKKEEPING RECORDS AND WHAT NOT WOULD BE VERY EXPENSIVE BOTH FOR THE
TREASURY AND FOR THE PERSON AFFECTED. 

THE OTHER EXEMPTIONS FROM THE TAX ARE NOT REALLY ATTACKED BY THOSE
WHO OPPOSE US IN THE CASES AT BAR.  THE 90 PER CENT. CREDIT IS A VALID
CLASSIFICATION ON SEVERAL GROUNDS, FIRST, TO AVOID DOUBLE TAXATION;
SECOND, VALID CLASSIFICATION TO DISTINGUISH BETWEEN THOSE WHO PROVIDE
FUNDS FOR THE GENERAL WELFARE OF THE UNITED STATES AND OTHERS WHO LEAVE
THE GOVERNMENT IN THE PREDICAMENT IN WHICH IT HAS FOUND ITSELF IN THE
LAST 3 YEARS. 

EXTRACTS FROM ORAL ARGUMENT OF ASSISTANT ATTORNEY GENERAL JACKSON: 

THE CHALLENGE OF UNEMPLOYMENT IS BEING ANSWERED AT THIS TIME BY A
COMBINATION OF STATE AND FEDERAL POWER.  UNDER THIS PLAN, THE STATE IS
BRINGING TO THE SOLUTION OF THE PROBLEM ITS TAXING POWER AND WHATEVER
OF LOCAL REGULATORY POWER IT MAY REQUIRE, SUBJECT, OF COURSE, TO ITS
CONSTITUTION AND TO THE FOURTEENTH AMENDMENT.  THE FEDERAL GOVERNMENT
IS BRINGING TO BEAR UPON THE SAME PROBLEM ITS TAXING POWER AND ITS
SPENDING POWER.  WE DO NOT CLAIM THAT NEW POWERS EXIST BY VIRTUE OF THE
CONDITIONS WHICH MR. WYZANSKI HAS DETAILED, OR THAT THIS IS AN
EMERGENCY-POWER MATTER.  WE CLAIM THAT THE FEDERAL GOVERNMENT AND THE
STATE GOVERNMENTS ARE COOPERATING BY EACH CONTRIBUTING WHAT IT MAY OF
ITS OWN POWER TO THE SOLUTION OF A COMMON PROBLEM. 

ALTHOUGH THE COMBINATION IN THIS PARTICULAR ACT IS NEW, THE DEVICES
OR METHODS WHICH ARE USED HERE ARE DEVICES AND METHODS WHICH SEPARATELY
HAVE BEEN APPROVED BY THIS COURT.  THE DEVICES USED BY THE FEDERAL
GOVERNMENT CONSIST, FIRST, OF A GRANT IN AID, TO PAY THE STATES THE
COST OF ADMINISTRATION OF UNEMPLOYMENT COMPENSATION LAWS.  THAT WE
THINK WAS APPROVED IN MASSACHUSETTS V. MELLON.  A SECOND DEVICE IS THE
TAX WITH A CREDIT, A LARGE CREDIT, A CREDIT DESIGNED TO ENABLE THE
STATES TO FREE THEMSELVES OF THE COMPETITION OF NEIGHBORS, AND TO GO
AHEAD WITH THEIR OWN PLANS; AND THAT DEVICE FOR THAT PURPOSE WE THINK
WAS APPROVED IN FLORIDA V. MELLON. 

THE RELATION OF THIS TAX TO THE APPROPRIATION IS ENTIRELY
UNESTABLISHED, EITHER BY THE ACT ITSELF OR BY THE FACTS IN THE CASE. 
IN THE FIRST PLACE, THE APPROPRIATION UNDER SEC. 301 IF IT BE CONSTRUED
AS AN APPROPRIATION, BEGAN BEFORE THE TAX WAS PAYABLE.  THE
APPROPRIATION IS NOT MEASURED BY THE PROCEEDS OF THE TAX.  THE TAX IS
NOT EARMARKED FOR THIS PURPOSE.  THERE IS NO EQUIVALENCE BETWEEN THE
AMOUNTS SET ASIDE BY THIS SECTION AND THE PROCEEDS OF THE TAX. 

NOW, IT IS APPARENT ON THE VERY FACE OF IT THAT THERE COULD NOT BE AN
EQUIVALENCE, BECAUSE THE MORE STATE LAWS ARE ENACTED THE MORE MONEY
WOULD HAVE TO BE EXPENDED UNDER SEC. 301 FOR AID IN THEIR
ADMINISTRATION.  BUT THE MORE STATE LAWS ARE ENACTED THE LESS REVENUE
WOULD BE PRODUCED, BECAUSE OF THE EFFECTS OF THE CREDIT.  THE MAXIMUM
PRODUCTIVITY OF THE FEDERAL TAX WOULD BE ATTAINED IF NO STATE ENACTED A
COMPENSATION LAW.  THE MAXIMUM EXPENDITURE WOULD BE IF ALL STATES
ENACTED THEM; SO THAT THERE IS NO EQUIVALENCE AND NO RELATIONSHIP. 

THIS SECTION IS BY THE PROVISIONS OF THE ACT MADE SEPARABLE, AND WE
THINK THAT THE SEPARABILITY PRESUMED FROM THIS SECTION OF THE ACT IS
NOT OVERCOME, AS IT WAS IN THE BUTLER CASE, BY ANY RELATION BETWEEN THE
TAX AND THE APPROPRIATION OBJECTS.  SO, IT IS OUR POSITION THAT THERE
IS NO STANDING TO CHALLENGE THIS GRANT-IN-AID, EXCEPT AS THE WHOLE
OPERATION OF THE ACT INCLUDING THE GRANT-IN-AID MAY BE CONSIDERED HERE
UNDER THE TENTH AMENDMENT. 

BUT, IF THE COMPLAINT BE ENTERTAINED, WE THINK THE PURPOSE OF
SPENDING IS CLEARLY WITHIN THE GENERAL WELFARE, AS HAS BEEN POINTED
OUT, AND THAT THE FORM OF SPENDING BY THE GRANT-IN-AID IS VALIDATED BY
HISTORY, SINCE IT HAS BEEN REPEATEDLY RESORTED TO AND RESORTED TO UPON
CONDITION. 

COMING TO THE TAX CREDIT AND CONDITIONS FOUND IN SEC. 902, THE CREDIT
BEING THE SECOND DEVICE IN THIS ACT WHICH OPERATES, AS IT IS CLAIMED,
ON THE FEDERAL AND STATE RELATIONSHIP. 

UNEMPLOYMENT IS A CONCERN OF THE FEDERAL GOVERNMENT, BUT IF YOUR
HONORS DO NOT GO ALONG WITH US UPON THAT ARGUMENT, THERE IS STILL A
RIGHT TO GIVE A CREDIT, EVEN THOUGH THE PURPOSE SERVED BY THAT CREDIT
IS NOT A FEDERAL PURPOSE.  ALWAYS THERE HAS BEEN THE RIGHT IN THE
ADJUSTMENT OF A TAX STRUCTURE TO RECOGNIZE EQUITIES, TO RECOGNIZE THE
EXTENT TO WHICH THE TAXPAYER HAS ASSUMED AND PERFORMED OTHER
OBLIGATIONS, THE EXTENT TO WHICH HE HAS CONTRIBUTED TO PURPOSES WHICH
WERE WHOLLY UNRELATED TO THE FEDERAL GOVERNMENT.  (INSTANCING THE
CREDIT CONSIDERED IN FLORIDA V. MELLON, 273 U.S. 12; AND VARIOUS
DEDUCTIONS AND EXEMPTIONS ALLOWED IN GENERAL TAX LAWS.) 

THE NEXT QUESTION IS WHETHER IT MAY LAY DOWN CONDITIONS UPON WHICH
THAT CREDIT WILL BE GRANTED.  I TAKE IT THAT IF THE GOVERNMENT HAS A
RIGHT TO GIVE A MAN A CREDIT IT HAS A RIGHT TO SEE THAT THAT CREDIT IS
A GENUINE CREDIT FOR THE PURPOSE INTENDED.  THIS CREDIT GOES BEYOND
THOSE CREDITS WHICH SERVE PURELY PERSONAL PURPOSES.  IT SERVES THE
FISCAL PURPOSE OF THE TREASURY OF THE UNITED STATES.  THIS PERSON WHO
HAS CONTRIBUTED 90 PER CENT. OF THIS TAX TO THE UNEMPLOYMENT FUND OF
HIS STATE HAS TO THAT EXTENT RELIEVED THE FEDERAL GOVERNMENT OF WHAT IS
ASSUMED TO BE AN OBLIGATION TO TAKE UP CERTAIN DUTIES, WHEN
UNEMPLOYMENT PASSES THE CAPACITY OF THE STATE TO HANDLE IT.  AND, IF IT
IS TO SERVE SUCH A PURPOSE, WE CLEARLY HAVE THE RIGHT TO LAY DOWN THE
TESTS WHICH WILL SEE THAT THE UNEMPLOYMENT PURPOSE HAS BEEN HONESTLY
SERVED. 

PROVISION 1, WHICH MUST BE CONTAINED IN THE STATE LAW, IS THAT ALL
COMPENSATION IS TO BE PAID THROUGH PUBLIC EMPLOYMENT OFFICES IN THE
STATE, OR SUCH OTHER AGENCIES AS THE BOARD MAY APPROVE.  THE PURPOSE OF
THAT PROVISION IS TO STOP THE "CRACKER-BARREL LOAFER," WHO HAS BEEN
REFERRED TO HERE, FROM GETTING RELIEF OR GETTING A DOLE IN THE FORM OF
RELIEF.  THE PURPOSE OF THAT PROVISION IS TO ASSURE THAT WHEN THE
CREDIT IS TAKEN AGAINST FEDERAL TAX THE MONEY WHICH THE FEDERAL
GOVERNMENT LOSES GOES TO PEOPLE WHO ARE IN GOOD FAITH OUT OF
EMPLOYMENT. 

IT WAS CONCEIVED BY CONGRESS THAT IF THESE UNEMPLOYMENT RESERVES WERE
BUILT UP IN THE SEPARATE STATE TREASURIES, AND WE THEN FACED ANOTHER
PERIOD OF UNEMPLOYMENT, AND ALL OF THOSE STATE TREASURIES WERE REQUIRED
TO RUSH TO LIQUIDATION WITHIN A SHORT PERIOD, IT WOULD NOT ONLY PRODUCE
GREAT LOSS TO THE STATES, BUT IT WOULD PRODUCE ALSO A GREAT DISLOCATION
TO OUR ENTIRE ECONOMY.  IT WAS DESIRED TO PLACE THESE RESERVES IN A
POSITION WHERE THEY WOULD ALWAYS BE LIQUID AND AVAILABLE, IN A POSITION
WHERE THE STATES WOULD SUFFER NO LOSS THROUGH LIQUIDATION, AND WHERE
THEY COULD BE LIQUIDATED IN AN ORDERLY FASHION BY THE TREASURY, WITH
THE AID OF THE FEDERAL RESERVE SYSTEM, AND IN A WAY THAT WOULD NOT
DISTURB THE ECONOMY OF THE UNITED STATES. 

SOME OF THE RIGHTS OF INDIVIDUALS, OR FEDERAL GOVERNMENT, OR OF THE
STATE GOVERNMENTS, ARE ABSOLUTE AND PRECISELY MEASURED RIGHTS, AND AS
DUE PROCESS IS A TEST BY WHICH THE INDIVIDUAL RIGHTS MAY BE MEASURED
(NEBBIA V. NEW YORK, 291 U.S. 502), SO THE TENTH AMENDMENT HAS TO BE
INTERPRETED IN THE LIGHT OF A REASONABLE CONSIDERATION OF THOSE THINGS
WHICH THE STATE AND FEDERAL GOVERNMENTS ARE ATTEMPTING TO DO.  I
ADDRESS MY ARGUMENT TO THE REASONABLENESS OF THE EXERCISE OF POWER
UNDERTAKEN IN THIS PARTICULAR CASE, TO SHOW THAT IT IS NOT AN ATTEMPT
TO INVADE THE POWERS OF THE STATE, TO UNDERTAKE TO REGULATE ITS
INDUSTRY, OR TO DO THOSE THINGS WHICH HAVE BEEN GENERALLY HELD TO BE
PROHIBITED ENDS; BECAUSE IF BY REASONABLE EXAMINATION OF THE STATUTES
IN QUESTION THE END IS FOUND TO BE PROHIBITED, THEN IT HAS BEEN HELD BY
THIS COURT THAT ALL ROADS TO IT ARE CLOSED.    IN THE FIRST PLACE IT
SHOULD BE OBSERVED THAT IN THIS FEDERAL ACT THERE IS NO COMPULSION UPON
THE STATE TO ADOPT ANY KIND OF LEGISLATION WHATEVER.  THIS LAW DOES NOT
OPERATE UPON THE STATES.  THIS LAW OPERATES UPON THE TAXPAYERS WHO ARE
CITIZENS OF THE UNITED STATES AND SUBJECT TO ITS TAXATION.  IT OPERATES
BY GIVING THEM A CREDIT, PROVIDED THOSE TAXPAYERS HAVE PAID TO THE
STATE CERTAIN SUMS OF MONEY.  IT IS PURELY FISCAL AND NOT REGULATORY IN
ITS OPERATION.  WHILE THE OPERATION OF THE TAX MAY DEPEND UPON AN
EMPLOYER-EMPLOYEE RELATIONSHIP EXISTING, THERE ARE NO OBLIGATIONS
CREATED AS BETWEEN EMPLOYER AND EMPLOYEE, NO RIGHTS CREATED AND NONE
DENIED.  THE SCHEME SETS UP NO COMPETITION WITH THE INDUSTRY OF THE
STATE, NO REGULATION OF THE INDUSTRY OF THE STATE.  THE STATE IS
ENTIRELY FREE TO TAKE ANY OF THE KNOWN TYPES OF WORKABLE COMPENSATION
FUNDS, AND STILL OBTAIN ITS CREDIT.  THE COVERAGE OF THE LAW THAT THE
STATE SHALL PASS IS TO BE DETERMINED BY ITSELF. 

THE BENEFITS ARE ENTIRELY WITHIN THE CONTROL OF THE STATE, WITHOUT
IMPAIRING ITS CREDIT. 

THESE CONDITIONS ARE ENTIRELY SEPARABLE FROM THE TAXING PROVISIONS. 
I SHALL NOT GO INTO DETAIL EXCEPT TO POINT OUT THAT THE TAX AND THE
CREDIT MAY STAND AND OPERATE EVEN THOUGH THESE CONDITIONS BE FOUND TO
BE OUTSIDE THE POWER OF THE GOVERNMENT TO IMPOSE. 

FURTHERMORE, ANY ONE OF THESE CONDITIONS IS SEPARABLE FROM ALL OF THE
OTHERS, AND IT IS CONTENDED IN OUR BRIEF THAT THE TAX AND THE CREDIT
MAY STAND EVEN IF SOME OF THE CONDITIONS BE FOUND TO STEP BEYOND THE
DOMAIN PROPERLY OCCUPIED BY THE FEDERAL GOVERNMENT. 

THE QUESTION REMAINS WHETHER, IN THIS DISTRIBUTION OF ACTIVITIES
BETWEEN THE STATE AND THE FEDERAL GOVERNMENTS, EVEN IF WE ARE WITHIN
THE TECHNICAL WORD OF THE CONSTITUTION, THERE HAS BEEN SUCH A PLAN
ATTEMPTED AS WILL UPSET AND UNBALANCE OUR DUAL FORM OF GOVERNMENT.  THE
PROBLEM OF UNEMPLOYMENT FACED LOCALLY, AS WELL AS BY THE FEDERAL
GOVERNMENT, AND THE DISTRESS AND COMMERCIAL DEMORALIZATION DUE TO IT,
WERE NOT CONFINED TO ANY ONE OF OUR SOVEREIGNTIES.  THESE TWO
SOVEREIGNTIES, THE STATE AND NATION, HAVE SOUGHT UNDER THIS PLAN, AND
IN THE CASE BEFORE YOUR HONORS, TO LAY THEIR POWERS TOGETHER SO THAT
THE POWERS OF THE TWO MAY BE EQUAL TO THE MAGNITUDE OF THIS PROBLEM. 
SO FAR AS THE BALANCE OF POWER BETWEEN STATE AND FEDERAL GOVERNMENT IS
CONCERNED, OUR ADVERSARIES WOULD MAINTAIN THAT BALANCE BY DENYING BOTH
SOVEREIGNTIES THE RIGHT TO DEAL WITH THIS PROBLEM; AND WE SUBMIT THAT
THAT IS NOT THE ANSWER, AND THAT IT IS UNTHINKABLE, IN THE FACE OF A
PROBLEM WHICH THREATENED THE PEACE AND SOLVENCY OF LOCAL GOVERNMENT, OF
THE STATE GOVERNMENTS, AND OF NATIONAL GOVERNMENT, THAT THERE IS POWER
NOWHERE IN OUR SYSTEM TO DEAL WITH IT. 

CLEARLY BOTH SOVEREIGNTIES HAVE AN INTEREST IN THIS PROBLEM, AN
OVERLAPPING INTEREST PERHAPS.  THE FEDERAL GOVERNMENT SURELY HAS AN
INTEREST IN MAINTAINING ITS NATIONAL ECONOMY AND ITS SOCIAL ORDER.  IT
HAS THE RIGHT TO TAKE MEASURES TO PROTECT ITS TREASURY FROM UNUSUAL
DRAINS.  IT HAS A RIGHT TO PREPARE FOR THE UNEMPLOYMENT PROBLEM BEFORE
IT OCCURS, AS WELL AS TO APPROPRIATE MONEY TO DEAL WITH IT AFTERWARD. 

THE FEDERAL GOVERNMENT SEEKS A SOLUTION OF THE PROBLEM OF
UNEMPLOYMENT; AND JUST WHAT THE SOLUTION SHALL BE IS NOT SO MATERIAL,
PROVIDED THE PROBLEM IS SOLVED.  BUT THE STATES HAVE SEPARATE INTERESTS
IN THIS PROBLEM.  THEREFORE THE TWO SOVEREIGNTIES MAY CONCUR, AS WE SEE
IT, IN REACHING A REMEDY. 

BUT THE STATE AND FEDERAL GOVERNMENTS EACH HAVE THEIR POWERS AND
DISABILITIES.  THE FEDERAL GOVERNMENT IS AN ECONOMIC AS WELL AS A
POLITICAL UNIT.  IT MAY CONTROL ITS FRONTIERS, AND IF IT BURDENS AN
INDUSTRY IT MAY ALSO PROTECT IT AGAINST OUTSIDE COMPETITION.  IT CAN
LAY AN EQUAL AND NOT DISCRIMINATORY DUTY UPON ALL OF ITS CITIZENS, IN
THE FORM OF A TAX LAW, AND IT MAY LAY SUCH A DUTY THAT IT MAY BE PASSED
ON AND ULTIMATELY BE ABSORBED BY ALL OF THE CONSUMING PUBLIC, AS I
SUSPECT THIS TAX WILL BE. 

THE STATES, ON THE OTHER HAND, HAVE DECIDED LIMITATIONS UPON THEIR
COMPETENCY TO DEAL WITH THIS PROBLEM.  THEY ARE POLITICAL BUT NOT
ECONOMIC UNITS.  THEY MAY NOT CONTROL THEIR MARKET PLACES AGAINST
COMPETITION FROM OUTSIDE THEIR OWN BORDERS, AS THIS COURT HAS HELD. 
THEY MAY BURDEN THEIR INDUSTRIES WITH CERTAIN REGULATIONS, BUT THEY MAY
NOT PROTECT THEM AGAINST THE OUTSIDE COMPETITOR, AND THE FREEDOM OF THE
STATES IN SOME OF THESE ECONOMIC MATTERS IS THE FREEDOM TO COMMIT
INDUSTRIAL SUICIDE. 

THEREFORE EACH OF THESE SOVEREIGNTIES HAS BROUGHT TO THIS PROBLEM
WHAT IT HAS OF POWER - THE STATE TO SUPPLY LOCAL ADMINISTRATION, LOCAL
CONTROL, LOCAL BURDENS AND BENEFITS, AND LOCAL REGULATIONS - THE
FEDERAL GOVERNMENT TO LAY A UNIFORM TAX WITH A CREDIT WHICH WILL ASSURE
TO THE CITIZENS OF A STATE THAT ITS CITIZENS WILL NOT LOSE THEIR
INDUSTRIES BY VIRTUE OF ITS EFFORT TO MEET THIS PROBLEM IN A HUMANE AND
PROPER WAY. 

EXTRACTS FROM ORAL ARGUMENT OF MR. STERNE. 

THE SITUATION CONFRONTING THESE STATES IS THAT UNLESS THEY THEMSELVES
LEVY A TAX INVOLVING LARGE SUMS OF MONEY, AND TURN THOSE SUMS OVER TO
THE UNEMPLOYED, THEY SEE THE FEDERAL GOVERNMENT TAKE OUT OF THE STATE
THE SAME AMOUNT - AND I SAY "THE SAME AMOUNT" BECAUSE I FIND A
COMPENSATING EQUATION IN THE ONE-TENTH. 

IN REALISTIC TERMS, IN ALABAMA IT MEANS THIS:  IN 1929 THE PAY ROLLS
SUBJECT TO TAX UNDER THE FEDERAL PLAN AMOUNTED TO SOMETHING OVER
$333,000,000, WHICH MEANS CLOSE TO $10,000,000 OF TAXES LEVIED BY THE
FEDERAL GOVERNMENT, WITH $9,000,000 WHICH WE CAN GET BACK FOR THE
UNEMPLOYED IF CERTAIN LOCAL FUNCTIONS OF THE STATE OF ALABAMA ARE
COMMITTED TO THE GOVERNMENT OF THE UNITED STATES.  NOW, IN 1929, A
PERIOD OF HIGH RETURN IN ALABAMA, THE TOTAL REVENUES OF THE STATE WERE
SOMETHING UNDER $40,000,000, SO THAT THE DEGREE AND THE WEIGHT OF THE
COMPULSION MAY BE EVALUATED WHEN IT IS SEEN THAT AN AMOUNT EQUAL TO ONE
FOURTH OF THE TOTAL REVENUE OF THE STATE OF ALABAMA IS TAKEN OUT OF THE
STATE AND CAN BE RETURNED TO THE STATE NOT MERELY FOR SPENDING, BUT TO
THE EMPLOYEES IF, AND ONLY IF, CERTAIN STATE FUNCTIONS ARE ABANDONED OR
PLACED WITHIN THE CONTROL OF THE FEDERAL GOVERNMENT.  AND THAT IN THE
FACE OF REPEATED ADJUDICATIONS OF THIS COURT THAT IN NO WAY CAN THE
FEDERAL GOVERNMENT ACQUIRE, BY TREATY, CONSENT, SUBMISSION, PETITION,
OR WHAT NOT, ANY FUNCTION OF A STATE. 

FLORIDA V. MELLON, 273 U.S. 12, INVOLVED ONLY AN ABANDONMENT BY ONE
SOVEREIGN OF A RECOGNIZED FIELD OF TAXATION IN WHICH THE EVIL OF DOUBLE
TAXATION EXISTED. 

IN THE PRESENT SITUATION THERE IS NEITHER HISTORICAL, NOR DO I
BELIEVE REAL, DOUBLE TAXATION, NOR THREAT NOR POSSIBILITY OF DOUBLE
TAXATION.  SO FAR AS MY RESEARCHES HAVE ENABLED ME TO ASCERTAIN, THERE
HAS BEEN NO RECOGNIZED FIELD OF TAXATION AS TO PAY ROLLS, IN THE UNITED
STATES, AND THE SITUATION HERE PRESENTED APPARENTLY IS THAT THE FEDERAL
GOVERNMENT CREATES THE EVIL IN ORDER TO CURE IT, AND THEN CLAIMS THAT
IT IS ACTING WITHIN SOME CONSTITUTIONAL GRANT OF POWER IN CURING AN
EVIL OF DUPLICITY OF TAXATION. 

THE SECOND DISTINGUISHING CHARACTERISTIC, AS I SEE IT, IS THAT IN
FLORIDA V. MELLON THERE WAS A MERE EXIT OF THE DOMINANT SOVEREIGN -
THAT WAS THE END, IN ITSELF, ITS EXIT.  HERE, THE EXIT IS MADE THE
MEANS OF A MOST MASSIVE INCURSION INTO THE STATE REALM.  THE COMPULSION
OF THE TAX SEEMS MANIFEST.  IT IS SUGGESTED THAT THERE WAS AN EAGERNESS
FOR THIS TAX ON THE PART OF THE STATES, AND THAT THAT IS EVIDENCED BY
THE FACT THAT MANY BILLS HAD BEEN INTRODUCED IN OTHER STATES, WHICH
FAILED OF PASSAGE FOR FEAR OF ECONOMIC COMPETITIVE DISADVANTAGE.  I DO
NOT KNOW WHAT WEIGHT CAN BE ATTACHED TO THE FACT THAT MANY BILLS WERE
INTRODUCED IN THE LEGISLATURE, BUT IT SEEMS TO ME THAT A COUNTERVAILING
CIRCUMSTANCE OF NO LITTLE SIGNIFICANCE IS THIS:  THAT WHEN THESE
QUALIFYING STATUTES WERE ENACTED, 35 OF THE 43 ENACTING STATES PROVIDED
AN AUTOMATIC EXIT.  THEY ENACTED PROVISIONS THAT IF AND WHEN THE
FEDERAL ACT FAILED, INSTANTLY THE STATE ACT SHOULD CEASE TO OPERATE. 

THERE CAN BE NO SUCH THING AS A LEGITIMATE COMPULSION LAID UPON A
STATE BY THE FEDERAL GOVERNMENT.  THE FACT THAT A REASONABLE END IS
SOUGHT, THAT A MOST ADMIRABLE PLAN FOR RELIEVING UNEMPLOYMENT MAY HAVE
BEEN EVOKED, WOULD SEEM IN NO WAY TO DEROGATE FROM THE PROPOSITION THAT
THE FEDERAL GOVERNMENT MUST BE CONFINED TO ITS CONSTITUTIONAL BOUNDS
AND NOT BE PERMITTED TO MAKE THE TAXING POWER AN INSTRUMENTALITY OF
COMPULSION AGAINST A STATE. 

THE ARGUMENT ADVANCED IN BEHALF OF THE GOVERNMENT APPEARS TO SUGGEST
THAT THE MONEYS RAISED BY THE 90 PER CENT. SHOULD REALLY BE CONSIDERED
AS HAVING THEIR ORIGIN IN THE FEDERAL GOVERNMENT AND AS BEING MONEYS OF
THE FEDERAL GOVERNMENT.  THAT IS NOT OUR CONCEPTION OF THE TRUE
SITUATION.  BUT IF IT BE - IF THAT ALTERNATIVE BE A CORRECT ONE - THEN
IT WOULD SEEM THAT THE TAXING MEASURE MUST FAIL IMMEDIATELY, FOR THE
UNDENIABLE REASON THAT WHATEVER MAY BE THE POWER OF CONGRESS TO
EXPROPRIATE FROM CLASS TO CLASS IN PURSUANCE OF REGULATORY LEGISLATION,
THE TAXING POWER CANNOT BE SO USED; AND SURELY IT WILL NEVER BE
CONTENDED BY ANYONE THAT IT WAS WITHIN THE PURVIEW OF CONGRESSIONAL
POWER TO REGULATE THE RELATION OF EMPLOYER AND EMPLOYEE.  YET ONLY AS
AN INCIDENT OF REGULATION, AS WE SEE IT, CAN THERE BE A TAXATION OF THE
EMPLOYER FOR THE BENEFIT OF THE EMPLOYED. 

(COUNSEL THEN ARGUED THAT TO TAX EMPLOYERS FOR THE BENEFIT OF
UNEMPLOYED WORKMEN, NOT INDIGENT, IS A TAKING OF PRIVATE PROPERTY FOR A
PRIVATE USE - LOAN ASS'N V. TOPEKA, 20 WALL.  655 - SAYING THIS "WITH
FULL RECOGNITION OF THE FACT THAT THE PROBLEM OF UNEMPLOYMENT VERY
LARGELY COINCIDES WITH THE PROBLEM OF INDIGENCY, AND THAT THE AVERAGE
WORKMAN OUT OF EMPLOYMENT LONG ENOUGH TO QUALIFY FOR BENEFITS UNDER ANY
SYSTEM IS PROBABLY QUALIFIED FOR INDIGENT RELIEF, BUT THE MEN WHO HAVE
ACCUMULATED A SUFFICIENT COMPETENCY TO TIDE OVER SEVERAL PERIODS OF
COMPENSABLE IDLENESS UNDER ANY OF THESE PLANS ARE NOT BY ANY MEANS
EXCEPTIONAL.") 

IF, UNDER THE GUISE OF FORESTALLING A FUTURE DEMAND, THE FEDERAL
GOVERNMENT MAY TAKE OVER ANY LOCAL CONCERNS OF THE STATE, I CONFESS I
CAN SEE NO LIMIT. 

I DO NOT BELIEVE THAT UNDER OUR FORM OF GOVERNMENT THE FEDERAL
GOVERNMENT IS EMPOWERED EVER TO DISPENSE DIRECT RELIEF, EXCEPT IN THE
FACE OF AN IMMEDIATELY EXISTING, IMPERIOUS NECESSITY.  IT IS ONLY AS
THE RESULT OF A BREAKDOWN OF ALL ELSE AND A THREAT TO THE EXISTENCE OF
THE GOVERNMENT ITSELF AND ITS PEOPLE, THAT THAT POWER COMES INTO
EXISTENCE, EX NECESSITATE REI; AND THEREFORE IT CANNOT BE ANTICIPATED
OR PROVIDED AGAINST FURTHER THAN BY THE FEDERAL GOVERNMENT, IF IT SEES
FIT, ACCUMULATING A TREASURER'S RESERVE FOR THAT PURPOSE. 

THERE IS NO SUCH THING AS A PREPAREDNESS THAT IN ANY WAY EXTENDS THE
POWER OF THE FEDERAL GOVERNMENT. 

IT IS NOT MY UNDERSTANDING THAT THE GENERAL WELFARE FOR WHICH FISCAL
PROVISION MAY BE MADE THROUGH THE TAXING POWER IS THE GENERAL WELFARE
OF THE INHABITANTS OF THE UNITED STATES.  IT WOULD SEEM TO ME
UNTHINKABLE THAT, MEANING THE INHABITANTS OF THE UNITED STATES, THE
FOUNDERS SPOKE OF THE WELFARE OF THE UNITED STATES IN THE SELFSAME
WORDS IN WHICH THEY SPOKE OF PAYING THE DEBTS OF THE UNITED STATES. 

WE SUBMIT THAT TITLE IX IS UNWORKABLE WITHOUT TITLE III, AND TITLE
III IS UNWORKABLE WITHOUT TITLE IX.  SINCE WE ARE FORBIDDEN TO USE FOR
THE PURPOSE OF ADMINISTRATION ANY PART OF THE FUND WHICH IS RAISED FOR
THE RELIEF, IX CANNOT OPERATE WITHOUT III, AND CERTAINLY IT WAS NEVER
INTENDED TO OPERATE WITHOUT III, IF THE STATUTE AND THE PLAN ARE SEEN
AS A WHOLE AND NOT MERELY ITS SEVERED PARTS. 

NOW, THERE IS ONE QUESTION OF CONSTRUCTION OF THIS STATUTE, WHEREIN
WE DIFFER WITH OPPOSING COUNSEL, AND THAT IS AS TO WHETHER, UNDER THE
STATUTE AS DRAWN, THE STATE HAS THE RIGHT TO WITHDRAW THE FUNDS AND USE
THEM FOR OTHER PURPOSES.  IT IS REQUIRED AS A CONDITION OF OUR
RECEIVING ADMINISTRATIVE EXPENSES AND AS A CONDITION OF OUR QUALIFYING
FOR THE CREDIT THAT WE STIPULATE IN OUR LAW THAT WE WILL WITHDRAW FUNDS
ONLY FOR BENEFIT PAYMENTS, AND WHILE THERE IS A PROVISION THAT THE
FEDERAL GOVERNMENT WILL HONOR THE REQUISITION OF THE STATE, IT IS
QUALIFIED BY SAYING THAT IT MUST BE DULY REQUISITIONED. 

THE SUGGESTION IS MADE, THAT AS LONG AS THEY ARE NOT REGULATING
ANYTHING IN ALABAMA AND IN THE OTHER STATES, THEY MUST NOT BE HELD TO
HAVE INTRUDED THEMSELVES INTO STATE AFFAIRS, THAT THE BUTLER CASE IS
NOT APPLICABLE, BECAUSE THERE THE FEDERAL GOVERNMENT REGULATED THE
SOWING OF CROPS.  HERE THEY SAY THERE IS NO REGULATION - THEY ARE JUST
CONDITIONING THE GRANT; BUT THE VICE OF THAT AND THE ALTERNATIVE WHICH
CONFRONTS THEM, AS WE SEE IT, IS THIS:  IF THIS IS A GRANT OF FEDERAL
FUNDS, IT IS AN EXPROPRIATIVE TAXATION, AND, THERE BEING NO POWER OF
REGULATION, IS VOID.  IF IT IS OUR OWN FUNDS, THEN THEY HAVE NO POWER
TO REQUIRE US TO DO ANYTHING WITH THEM. 

I WOULD HAVE ASSUMED THAT WORKMEN'S COMPENSATION - AND BY "WORKMEN'S
COMPENSATION" WE ALL MEAN COMPENSATION FOR INJURIES - WOULD BE AS
CLASSICAL AN INSTANCE OF A MATTER OF PURELY LOCAL CONCERN AS COULD BE
CONCEIVED OF.  BUT IF THIS IS VALID LEGISLATION, THEN I SEE NO
INHIBITION AGAINST CONGRESS ENACTING A 3-, 6-, 9-, OR 10-PER CENT. PAY
ROLL TAX, OR WHATEVER AMOUNT IT MAY CONSIDER NECESSARY, AND CONFRONTING
US WITH THE ALTERNATIVE OF SEEING HUGE SUMS DRAINED OUT OF ALABAMA, OR
INSTALLING A SYSTEM OF WORKMEN'S COMPENSATION DEVISED IN WASHINGTON,
HEDGED AROUND WITH SUCH LIMITATIONS AS THE AUTHORS HERE MAY CONSIDER
NECESSARY TO MAKE IT WHAT THEY WOULD CALL A BONA-FIDE, GENUINE
WORKMEN'S COMPENSATION SYSTEM.    I VISUALIZE THIS IN THE FIELD OF
MINIMUM WAGES FOR WOMEN, THAT THE FEDERAL GOVERNMENT NEED NOT LEAVE IT
TO THE STATES TO SOLVE THAT PROBLEM, BUT, BY HEAVY TAX AND CREDIT
PROVISIONS, PERCHANCE IT MAY REQUIRE THAT WE IN ALABAMA, AS A CONDITION
OF MONEY REMAINING IN ALABAMA, SHALL PROVIDE A MINIMUM-WAGE FUND TO BE
ADMINISTERED UNDER SUCH REMNANTS OF LIBERTY AS THE MINIMUM-WAGE BOARD
OF THE FEDERAL GOVERNMENT MAY SEE FIT TO LEAVE TO US. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT.    THE
VALIDITY OF THE TAX IMPOSED BY THE SOCIAL SECURITY ACT ON EMPLOYERS OF
EIGHT OR MORE IS HERE TO BE DETERMINED. 

PETITIONER, AN ALABAMA CORPORATION, PAID A TAX IN ACCORDANCE WITH THE
STATUTE, FILED A CLAIM FOR REFUND WITH THE COMMISSIONER OF INTERNAL
REVENUE, AND SUED TO RECOVER THE PAYMENT ($46.14), ASSERTING A CONFLICT
BETWEEN THE STATUTE AND THE CONSTITUTION OF THE UNITED STATES.  UPON
DEMURRER THE DISTRICT COURT GAVE JUDGMENT FOR THE DEFENDANT DISMISSING
THE COMPLAINT, AND THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT
AFFIRMED.  89 F.(2D) 207.  THE DECISION IS IN ACCORD WITH JUDGMENTS OF
THE SUPREME JUDICIAL COURT OF MASSACHUSETTS (HOWES BROTHERS CO. V.
MASSACHUSETTS UNEMPLOYMENT COMPENSATION COMM'N, DECEMBER 30, 1936, 5
N.E.(2D) 720), THE SUPREME COURT OF CALIFORNIA (GILLUM V. JOHNSON, 7
CAL.(2D) 744; 62 P.(2D) 1037), AND THE SUPREME COURT OF ALABAMA
(BEELAND WHOLESALE CO. V. KAUFMAN, 174 SO. 516).  IT IS IN CONFLICT
WITH A JUDGMENT OF THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT,
FROM WHICH ONE JUDGE DISSENTED.  DAVIS V. BOSTON & MAINE R. CO., 89
F.(2D) 368.  AN IMPORTANT QUESTION OF CONSTITUTIONAL LAW BEING
INVOLVED, WE GRANTED CERTIORARI. 

THE SOCIAL SECURITY ACT (ACT OF AUGUST 14, 1935, C. 531, 49 STAT.
620, 42 U.S.C., C. 7(SUPP.))  IS DIVIDED INTO ELEVEN SEPARATE TITLES,
OF WHICH ONLY TITLES IX AND III ARE SO RELATED TO THIS CASE AS TO STAND
IN NEED OF SUMMARY. 

THE CAPTION OF TITLE IX IS "TAX ON EMPLOYERS OF EIGHT OR MORE." 
EVERY EMPLOYER (WITH STATED EXCEPTIONS) IS TO PAY FOR EACH CALENDAR
YEAR "AN EXCISE TAX, WITH RESPECT TO HAVING INDIVIDUALS IN HIS EMPLOY,"
THE TAX TO BE MEASURED BY PRESCRIBED PERCENTAGES OF THE TOTAL WAGES
PAYABLE BY THE EMPLOYER DURING THE CALENDAR YEAR WITH RESPECT TO SUCH
EMPLOYMENT.  SEC. 901.  ONE IS NOT, HOWEVER, AN "EMPLOYER" WITHIN THE
MEANING OF THE ACT UNLESS HE EMPLOYS EIGHT PERSONS OR MORE.  SEC.
907(A).  THERE ARE ALSO OTHER LIMITATIONS OF MINOR IMPORTANCE.  THE
TERM "EMPLOYMENT" TOO HAS ITS SPECIAL DEFINITION, EXCLUDING
AGRICULTURAL LABOR, DOMESTIC SERVICE IN A PRIVATE HOME AND SOME OTHER
SMALLER CLASSES.  SEC. 907(C).  THE TAX BEGINS WITH THE YEAR 1936, AND
IS PAYABLE FOR THE FIRST TIME ON JANUARY 31, 1937.  DURING THE CALENDAR
YEAR 1936 THE RATE IS TO BE ONE PER CENT, DURING 1937 TWO PER CENT, AND
THREE PER CENT THEREAFTER.  THE PROCEEDS, WHEN COLLECTED, GO INTO THE
TREASURY OF THE UNITED STATES LIKE INTERNALREVENUE COLLECTIONS
GENERALLY.  SEC. 905(A).  THEY ARE NOT EARMARKED IN ANY WAY.  IN
CERTAIN CIRCUMSTANCES, HOWEVER, CREDITS ARE ALLOWABLE.  SEC. 902.  IF
THE TAXPAYER HAS MADE CONTRIBUTIONS TO AN UNEMPLOYMENT FUND UNDER A
STATE LAW, HE MAY CREDIT SUCH CONTRIBUTIONS AGAINST THE FEDERAL TAX,
PROVIDED, HOWEVER, THAT THE TOTAL CREDIT ALLOWED TO ANY TAXPAYER SHALL
NOT EXCEED 90 PER CENTUM OF THE TAX AGAINST WHICH IT IS CREDITED, AND
PROVIDED ALSO THAT THE STATE LAW SHALL HAVE BEEN CERTIFIED TO THE
SECRETARY OF THE TREASURY BY THE SOCIAL SECURITY BOARD AS SATISFYING
CERTAIN MINIMUM CRITERIA.  SEC. 902.  THE PROVISIONS OF SEC. 903
DEFINING THOSE CRITERIA ARE STATED IN THE MARGIN.  FN1  SOME OF THE
CONDITIONS THUS ATTACHED TO THE ALLOWANCE OF A CREDIT ARE DESIGNED TO
GIVE ASSURANCE THAT THE STATE UNEMPLOYMENT COMPENSATION LAW SHALL BE
ONE IN SUBSTANCE AS WELL AS NAME.  OTHERS ARE DESIGNED TO GIVE
ASSURANCE THAT THE CONTRIBUTIONS SHALL BE PROTECTED AGAINST LOSS AFTER
PAYMENT TO THE STATE.  TO THIS LAST END THERE ARE PROVISIONS THAT
BEFORE A STATE LAW SHALL HAVE THE APPROVAL OF THE BOARD IT MUST DIRECT
THAT THE CONTRIBUTIONS TO THE STATE FUND BE PAID OVER IMMEDIATELY TO
THE SECRETARY OF THE TREASURY TO THE CREDIT OF THE "UNEMPLOYMENT TRUST
FUND."  SECTION 904 ESTABLISHING THIS FUND IS QUOTED BELOW.  FN2  FOR
THE MOMENT IT IS ENOUGH TO SAY THAT THE FUND IS TO BE HELD BY THE
SECRETARY OF THE TREASURY, WHO IS TO INVEST IN GOVERNMENT SECURITIES
ANY PORTION NOT REQUIRED IN HIS JUDGMENT TO MEET CURRENT WITHDRAWALS. 
HE IS AUTHORIZED AND DIRECTED TO PAY OUT OF THE FUND TO ANY COMPETENT
STATE AGENCY SUCH SUMS AS IT MAY DULY REQUISITION FROM THE AMOUNT
STANDING TO ITS CREDIT.  SEC. 904(F). 

TITLE III, WHICH IS ALSO CHALLENGED AS INVALID, HAS THE CAPTION
"GRANTS TO STATES FOR UNEMPLOYMENT COMPENSATION ADMINISTRATION."  UNDER
THIS TITLE, CERTAIN SUMS OF MONEY ARE "AUTHORIZED TO BE APPROPRIATED"
FOR THE PURPOSE OF ASSISTING THE STATES IN THE ADMINISTRATION OF THEIR
UNEMPLOYMENT COMPENSATION LAWS, THE MAXIMUM FOR THE FISCAL YEAR ENDING
JUNE 30, 1936 TO BE $4,000,000, AND $49,000,000 FOR EACH FISCAL YEAR
THEREAFTER.  SEC. 301.  NO PRESENT APPROPRIATION IS MADE TO THE EXTENT
OF A SINGLE DOLLAR.  ALL THAT THE TITLE DOES IS TO AUTHORIZE FUTURE
APPROPRIATIONS.  ACTUALLY ONLY $2,250,000 OF THE $4,000,000 AUTHORIZED
WAS APPROPRIATED FOR 1936(ACT OF FEB. 11, 1936, C. 49, 49 STAT. 1109,
1113) AND ONLY $29,000,000 OF THE $49,000,000 AUTHORIZED FOR THE
FOLLOWING YEAR.  ACT OF JUNE 22, 1936, C. 689, 49 STAT. 1597, 1605. 
THE APPROPRIATIONS WHEN MADE WERE NOT SPECIFICALLY OUT OF THE PROCEEDS
OF THE EMPLOYMENT TAX, BUT OUT OF ANY MONEYS IN THE TREASURY.  OTHER
BE MADE TO THE STATE (SEC. 302) AND ALSO CERTAIN CONDITIONS TO BE
ESTABLISHED TO THE SATISFACTION OF THE SOCIAL SECURITY BOARD BEFORE
CERTIFYING THE PROPRIETY OF A PAYMENT TO THE SECRETARY OF THE
TREASURY.  SEC. 303.  THEY ARE DESIGNED TO GIVE ASSURANCE TO THE
FEDERAL GOVERNMENT THAT THE MONEYS GRANTED BY IT WILL NOT BE EXPENDED
FOR PURPOSES ALIEN TO THE GRANT, AND WILL BE USED IN THE ADMINISTRATION
OF GENUINE UNEMPLOYMENT COMPENSATION LAWS. 

THE ASSAULT ON THE STATUTE PROCEEDS ON AN EXTENDED FRONT.  ITS
ASSAILANTS TAKE THE GROUND THAT THE TAX IS NOT AN EXCISE; THAT IT IS
NOT UNIFORM THROUGHOUT THE UNITED STATES AS EXCISES ARE REQUIRED TO BE;
THAT ITS EXCEPTIONS ARE SO MANY AND ARBITRARY AS TO VIOLATE THE FIFTH
AMENDMENT; THAT ITS PURPOSE WAS NOT REVENUE, BUT AN UNLAWFUL INVASION
OF THE RESERVED POWERS OF THE STATES; AND THAT THE STATES IN SUBMITTING
TO IT HAVE YIELDED TO COERCION AND HAVE ABANDONED GOVERNMENTAL
FUNCTIONS WHICH THEY ARE NOT PERMITTED TO SURRENDER. 

THE OBJECTIONS WILL BE CONSIDERED SERIATIM WITH SUCH FURTHER
EXPLANATION AS MAY BE NECESSARY TO MAKE THEIR MEANING CLEAR. 

FIRST.  THE TAX, WHICH IS DESCRIBED IN THE STATUTE AS AN EXCISE, IS
LAID WITH UNIFORMITY THROUGHOUT THE UNITED STATES AS A DUTY, AN IMPOST
OR AN EXCISE UPON THE RELATION OF EMPLOYMENT. 

1.  WE ARE TOLD THAT THE RELATION OF EMPLOYMENT IS ONE SO ESSENTIAL
TO THE PURSUIT OF HAPPINESS THAT IT MAY NOT BE BURDENED WITH A TAX. 
APPEAL IS MADE TO HISTORY.  FROM THE PRECEDENTS OF COLONIAL DAYS WE ARE
SUPPLIED WITH ILLUSTRATIONS OF EXCISES COMMON IN THE COLONIES.  THEY
ARE SAID TO HAVE BEEN BOUND UP WITH THE ENJOYMENT OF PARTICULAR
COMMODITIES.  APPEAL IS ALSO MADE TO PRINCIPLE OR THE ANALYSIS OF
CONCEPTS.  AN EXCISE, WE ARE TOLD, IMPORTS A TAX UPON A PRIVILEGE;
EMPLOYMENT, IT IS SAID, IS A RIGHT, NOT A PRIVILEGE, FROM WHICH IT
FOLLOWS THAT EMPLOYMENT IS NOT SUBJECT TO AN EXCISE.  NEITHER THE ONE
APPEAL NOR THE OTHER LEADS TO THE DESIRED GOAL. 

AS TO THE ARGUMENT FROM HISTORY:  DOUBTLESS THERE WERE MANY EXCISES
IN COLONIAL DAYS AND LATER THAT WERE ASSOCIATED, MORE OR LESS
INTIMATELY, WITH THE ENJOYMENT OR THE USE OF PROPERTY.  THIS WOULD NOT
PROVE, EVEN IF NO OTHERS WERE THEN KNOWN, THAT THE FORMS THEN ACCEPTED
WERE NOT SUBJECT TO ENLARGEMENT.  CF. PENSACOLA TELEGRAPH CO. V.
WESTERN UNION, 96 U.S. 1, 9; IN RE DEBS, 158 U.S. 564, 591; SOUTH
CAROLINA V. UNITED STATES, 199 U.S. 437, 448, 449.  BUT IN TRUTH OTHER
EXCISES WERE KNOWN, AND KNOWN SINCE EARLY TIMES.  THUS IN 1695(6 & 7
WM. III, C. 6), PARLIAMENT PASSED AN ACT WHICH GRANTED "TO HIS MAJESTY
CERTAIN RATES AND DUTIES UPON MARRIAGE, BIRTHS AND BURIALS," ALL FOR
THE PURPOSE OF "CARRYING ON THE WAR AGAINST FRANCE WITH VIGOUR."  SEE
OPINION OF THE JUSTICES, 196 MASS. 603, 609; 85 N.E. 545.  NO COMMODITY
WAS AFFECTED THERE.  THE INDUSTRY OF COUNSEL HAS SUPPLIED US WITH AN
APTER ILLUSTRATION WHERE THE TAX WAS NOT DIFFERENT IN SUBSTANCE FROM
THE ONE NOW CHALLENGED AS INVALID.  IN 1777, BEFORE OUR CONSTITUTIONAL
CONVENTION, PARLIAMENT LAID UPON EMPLOYERS AN ANNUAL "DUTY" OF 21
SHILLINGS FOR "EVERY MALE SERVANT" EMPLOYED IN STATED FORMS OF WORK. 
FN3  REVENUE ACT OF 1777, 17 GEORGE III, C. 39.  FN4  THE POINT IS MADE
AS A DISTINCTION THAT A TAX UPON THE USE OF MALE SERVANTS WAS THOUGHT
OF AS A TAX UPON A LUXURY.  DAVIS V. BOSTON & MAINE R. CO., SUPRA.  IT
DID NOT TOUCH EMPLOYMENTS IN HUSBANDRY OR BUSINESS.  THIS IS TO THROW
OVER THE ARGUMENT THAT HISTORICALLY AN EXCISE IS A TAX UPON THE
ENJOYMENT OF COMMODITIES.  BUT THE ATTEMPTED DISTINCTION, WHATEVER MAY
BE THOUGHT OF ITS VALIDITY, IS INAPPLICABLE TO A STATUTE OF VIRGINIA
PASSED IN 1780.  THERE A TAX OF THREE POUNDS, SIX SHILLINGS AND EIGHT
PENCE WAS TO BE PAID FOR EVERY MALE TITHABLE ABOVE THE AGE OF TWENTY
ONE YEARS (WITH STATED EXCEPTIONS), AND A LIKE TAX FOR "EVERY WHITE
SERVANT WHATSOEVER, EXCEPT APPRENTICES UNDER THE AGE OF TWENTY ONE
YEARS."  10 HENING'S STATUTES OF VIRGINIA, P. 244.  OUR COLONIAL
FORBEARS KNEW MORE ABOUT WAYS OF TAXING THAN SOME OF THEIR DESCENDANTS
SEEM TO BE WILLING TO CONCEDE.  FN5 

THE HISTORICAL PROP FAILING, THE PROP OR FANCIED PROP OF PRINCIPLE
REMAINS.  WE LEARN THAT EMPLOYMENT FOR LAWFUL GAIN IS A "NATURAL" OR
"INHERENT" OR "INALIENABLE" RIGHT, AND NOT A "PRIVILEGE" AT ALL.  BUT
NATURAL RIGHTS, SO CALLED, ARE AS MUCH SUBJECT TO TAXATION AS RIGHTS OF
LESS IMPORTANCE.  FN6  AN EXCISE IS NOT LIMITED TO VOCATIONS OR
ACTIVITIES THAT MAY BE PROHIBITED ALTOGETHER.  IT IS NOT LIMITED TO
THOSE THAT ARE THE OUTCOME OF A FRANCHISE.  IT EXTENDS TO VOCATIONS OR
ACTIVITIES PURSUED AS OF COMMON RIGHT.  WHAT THE INDIVIDUAL DOES IN THE
OPERATION OF A BUSINESS IS AMENABLE TO TAXATION JUST AS MUCH AS WHAT HE
OWNS, AT ALL EVENTS IF THE CLASSIFICATION IS NOT TYRANNICAL OR
ARBITRARY.  "BUSINESS IS AS LEGITIMATE AN OBJECT OF THE TAXING POWERS
AS PROPERTY."  NEWTON V. ATCHISON, 31 KAN. 151, 154(PER BREWER, J.); 1
PAC. 288.  INDEED, OWNERSHIP ITSELF, AS WE HAD OCCASION TO POINT OUT
THE OTHER DAY, IS ONLY A BUNDLE OF RIGHTS AND PRIVILEGES INVESTED WITH
A SINGLE NAME.  HENNEFORD V. SILAS MASON CO., 300 U.S. 577.  "A STATE
IS AT LIBERTY, IF IT PLEASES, TO TAX THEM ALL COLLECTIVELY, OR TO
SEPARATE THE FAGGOTS AND LAY THE CHARGE DISTRIBUTIVELY."  IBID.
EMPLOYMENT IS A BUSINESS RELATION, IF NOT ITSELF A BUSINESS.  IT IS A
RELATION WITHOUT WHICH BUSINESS COULD SELDOM BE CARRIED ON
EFFECTIVELY.  THE POWER TO TAX THE ACTIVITIES AND RELATIONS THAT
CONSTITUTE A CALLING CONSIDERED AS A UNIT IS THE POWER TO TAX ANY OF
THEM.  THE WHOLE INCLUDES THE PARTS.  NASHVILLE, C. & ST. L. RY. CO. V.
WALLACE, 288 U.S. 249, 267, 268. 

THE SUBJECT MATTER OF TAXATION OPEN TO THE POWER OF THE CONGRESS IS
AS COMPREHENSIVE AS THAT OPEN TO THE POWER OF THE STATES, THOUGH THE
METHOD OF APPORTIONMENT MAY AT TIMES BE DIFFERENT.  "THE CONGRESS SHALL
HAVE POWER TO LAY AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES." 
ART. 1, SEC. 8.  IF THE TAX IS A DIRECT ONE, IT SHALL BE APPORTIONED
ACCORDING TO THE CENSUS OR ENUMERATION.  IF IT IS A DUTY, IMPOST, OR
EXCISE, IT SHALL BE UNIFORM THROUGHOUT THE UNITED STATES.  TOGETHER,
THESE CLASSES INCLUDE EVERY FORM OF TAX APPROPRIATE TO SOVEREIGNTY. 
CF. BURNET V. BROOKS, 288 U.S. 378, 403, 405; BRUSHABER V. UNION
PACIFIC R. CO., 240 U.S. 1, 12.  WHETHER THE TAX IS TO BE CLASSIFIED AS
AN "EXCISE" IS IN TRUTH NOT OF CRITICAL IMPORTANCE.  IF NOT THAT, IT IS
AN "IMPOST" (POLLOCK V. FARMERS' LOAN & TRUST CO., 158 U.S. 601, 622,
625; PACIFIC INSURANCE CO. V. SOULE, 7 WALL.  433, 445), OR A "DUTY"
(VEAZIE BANK V. FENNO, 8 WALL.  533, 546, 547; POLLOCK V. FARMERS' LOAN
& TRUST CO., 157 U.S. 429, 570; KNOWLTON V. MOORE, 178 U.S. 41, 46).  A
CAPITATION OR OTHER "DIRECT" TAX IT CERTAINLY IS NOT.  "ALTHOUGH THERE
HAVE BEEN FROM TIME TO TIME INTIMATIONS THAT THERE MIGHT BE SOME TAX
WHICH WAS NOT A DIRECT TAX NOR INCLUDED UNDER THE WORDS 'DUTIES,
IMPOSTS AND EXCISES,' SUCH A TAX FOR MORE THAN ONE HUNDRED YEARS OF
NATIONAL EXISTENCE HAS AS YET REMAINED UNDISCOVERED, NOTWITHSTANDING
THE STRESS OF PARTICULAR CIRCUMSTANCES HAS INVITED THOROUGH
INVESTIGATION INTO SOURCES OF POWERS."  POLLOCK V. FARMERS' LOAN &
TRUST CO., 157 U.S. 429, 557.  THERE IS NO DEPARTURE FROM THAT THOUGHT
IN LATER CASES, BUT RATHER A NEW EMPHASIS OF IT.  THUS, IN THOMAS V.
UNITED STATES, 192 U.S. 363, 370, IT WAS SAID OF THE WORDS "DUTIES,
IMPOSTS AND EXCISES" THAT "THEY WERE USED COMPREHENSIVELY TO COVER
CUSTOMS AND EXCISE DUTIES IMPOSED ON IMPORTATION, CONSUMPTION,
MANUFACTURE AND SALE OF CERTAIN COMMODITIES, PRIVILEGES, PARTICULAR
BUSINESS TRANSACTIONS, VOCATIONS, OCCUPATIONS AND THE LIKE."  AT TIMES
TAXPAYERS HAVE CONTENDED THAT THE CONGRESS IS WITHOUT POWER TO LAY AN
EXCISE ON THE ENJOYMENT OF A PRIVILEGE CREATED BY STATE LAW.  THE
CONTENTION HAS BEEN PUT ASIDE AS BASELESS.  CONGRESS MAY TAX THE
TRANSMISSION OF PROPERTY BY INHERITANCE OR WILL, THOUGH THE STATES AND
NOT CONGRESS HAVE CREATED THE PRIVILEGE OF SUCCESSION.  KNOWLTON V.
MOORE, SUPRA, P. 58.  CONGRESS MAY TAX THE ENJOYMENT OF A CORPORATE
FRANCHISE, THOUGH A STATE AND NOT CONGRESS HAS BROUGHT THE FRANCHISE
INTO BEING.  FLINT V. STONE TRACY CO., 220 U.S. 107, 155.  THE STATUTE
BOOKS OF THE STATES ARE STREWN WITH ILLUSTRATIONS OF TAXES LAID ON
OCCUPATIONS PURSUED OF COMMON RIGHT.  FN7  WE FIND NO BASIS FOR A
HOLDING THAT THE POWER IN THAT REGARD WHICH BELONGS BY ACCEPTED
PRACTICE TO THE LEGISLATURES OF THE STATES, HAS BEEN DENIED BY THE
CONSTITUTION TO THE CONGRESS OF THE NATION.    2.  THE TAX BEING AN
EXCISE, ITS IMPOSITION MUST CONFORM TO THE CANON OF UNIFORMITY.  THERE
HAS BEEN NO DEPARTURE FROM THIS REQUIREMENT.  ACCORDING TO THE SETTLED
DOCTRINE THE UNIFORMITY EXACTED IS GEOGRAPHICAL, NOT INTRINSIC. 
KNOWLTON V. MOORE, SUPRA, P. 83; FLINT V. STONE TRACY CO., SUPRA, P.
158; BILLINGS V. UNITED STATES, 232 U.S. 261, 282; STELLWAGEN V. CLUM,
245 U.S. 605, 613; LABELLE IRON WORKS V. UNITED STATES, 256 U.S. 377,
392; POE V. SEABORN, 282 U.S. 101, 117; WRIGHT V. VINTON BRANCH
MOUNTAIN TRUST BANK, 300 U.S. 440.  "THE RULE OF LIABILITY SHALL BE THE
SAME IN ALL PARTS OF THE UNITED STATES."  FLORIDA V. MELLON, 273 U.S.
12, 17. 

SECOND.  THE EXCISE IS NOT INVALID UNDER THE PROVISIONS OF THE FIFTH
AMENDMENT BY FORCE OF ITS EXEMPTIONS. 

THE STATUTE DOES NOT APPLY, AS WE HAVE SEEN, TO EMPLOYERS OF LESS
THAN EIGHT.  IT DOES NOT APPLY TO AGRICULTURAL LABOR, OR DOMESTIC
SERVICE IN A PRIVATE HOME OR TO SOME OTHER CLASSES OF LESS IMPORTANCE. 
PETITIONER CONTENDS THAT THE EFFECT OF THESE RESTRICTIONS IS AN
ARBITRARY DISCRIMINATION VITIATING THE TAX. 

THE FIFTH AMENDMENT UNLIKE THE FOURTEENTH HAS NO EQUAL PROTECTION
CLAUSE.  LABELLE IRON WORKS V. UNITED STATES, SUPRA; BRUSHABER V. UNION
PACIFIC R. CO., SUPRA, P. 24.  BUT EVEN THE STATES, THOUGH SUBJECT TO
SUCH A CLAUSE, ARE NOT CONFINED TO A FORMULA OF RIGID UNIFORMITY IN
FRAMING MEASURES OF TAXATION.  SWISS OIL CORP. V. SHANKS, 273 U.S. 407,
413.  THEY MAY TAX SOME KINDS OF PROPERTY AT ONE RATE, AND OTHERS AT
ANOTHER, AND EXEMPT OTHERS ALTOGETHER.  BELL'S GAP R. CO. V.
PENNSYLVANIA, 134 U.S. 232; STEBBINS V. RILEY, 268 U.S. 137, 142; OHIO
OIL CO. V. CONWAY, 281 U.S. 146, 150.  THEY MAY LAY AN EXCISE ON THE
OPERATIONS OF A PARTICULAR KIND OF BUSINESS, AND EXEMPT SOME OTHER KIND
OF BUSINESS CLOSELY AKIN THERETO.  QUONG WING V. KIRKENDALL, 223 U.S.
59, 62; AMERICAN SUGAR REFINING CO. V. LOUISIANA, 179 U.S. 89, 94;
ARMOUR PACKING CO. V. LACY, 200 U.S. 226, 235; BROWN-FORMAN CO. V.
KENTUCKY, 217 U.S. 563, 573; HEISLER V. THOMAS COLLIERY CO., 260 U.S.
245, 255; STATE BOARD OF TAX COMM'RS V. JACKSON, 283 U.S. 527, 537,
538.  IF THIS LATITUDE OF JUDGMENT IS LAWFUL FOR THE STATES, IT IS
LAWFUL, A FORTIORI, IN LEGISLATION BY THE CONGRESS, WHICH IS SUBJECT TO
RESTRAINTS LESS NARROW AND CONFINING.  QUONG WING V. KIRKENDALL,
SUPRA. 

THE CLASSIFICATIONS AND EXEMPTIONS DIRECTED BY THE STATUTE NOW IN
CONTROVERSY HAVE SUPPORT IN CONSIDERATIONS OF POLICY AND PRACTICAL
CONVENIENCE THAT CANNOT BE CONDEMNED AS ARBITRARY.  THE CLASSIFICATIONS
AND EXEMPTIONS WOULD THEREFORE BE UPHELD IF THEY HAD BEEN ADOPTED BY A
STATE AND THE PROVISIONS OF THE FOURTEENTH AMENDMENT WERE INVOKED TO
ANNUL THEM.  THIS IS HELD IN TWO CASES PASSED UPON TODAY IN WHICH
PRECISELY THE SAME PROVISIONS WERE THE SUBJECT OF ATTACK, THE
PROVISIONS BEING CONTAINED IN THE UNEMPLOYMENT COMPENSATION LAW OF THE
STATE OF ALABAMA.  CARMICHAEL V. SOUTHERN COAL & COKE CO., AND
CARMICHAEL V. GULF STATES PAPER CORP., ANTE, P. 495.  THE OPINION
RENDERED IN THOSE CASES COVERS THE GROUND FULLY.  IT WOULD BE USELESS
TO REPEAT THE ARGUMENT.  THE ACT OF CONGRESS IS THEREFORE VALID, SO FAR
AT LEAST AS ITS SYSTEM OF EXEMPTIONS IS CONCERNED, AND THIS THOUGH WE
ASSUME THAT DISCRIMINATION, IF GROSS ENOUGH, IS EQUIVALENT TO
CONFISCATION AND SUBJECT UNDER THE FIFTH AMENDMENT TO CHALLENGE AND
ANNULMENT. 

THIRD.  THE EXCISE IS NOT VOID AS INVOLVING THE COERCION OF THE
STATES IN CONTRAVENTION OF THE TENTH AMENDMENT OR OF RESTRICTIONS
IMPLICIT IN OUR FEDERAL FORM OF GOVERNMENT. 

THE PROCEEDS OF THE EXCISE WHEN COLLECTED ARE PAID INTO THE TREASURY
AT WASHINGTON, AND THEREAFTER ARE SUBJECT TO APPROPRIATION LIKE PUBLIC
MONEYS GENERALLY.  CINCINNATI SOAP CO. V. UNITED STATES, ANTE, P. 308. 
NO PRESUMPTION CAN BE INDULGED THAT THEY WILL BE MISAPPLIED OR WASTED. 
FN8  EVEN IF THEY WERE COLLECTED IN THE HOPE OR EXPECTATION THAT SOME
OTHER AND COLLATERAL GOOD WOULD BE FURTHERED AS AN INCIDENT, THAT
WITHOUT MORE WOULD NOT MAKE THE ACT INVALID.  SONZINSKY V. UNITED
STATES, 300 U.S. 506.  THIS INDEED IS HARDLY QUESTIONED.  THE CASE FOR
THE PETITIONER IS BUILT ON THE CONTENTION THAT HERE AN ULTERIOR AIM IS
WROUGHT INTO THE VERY STRUCTURE OF THE ACT, AND WHAT IS EVEN MORE
IMPORTANT THAT THE AIM IS NOT ONLY ULTERIOR, BUT ESSENTIALLY UNLAWFUL. 
IN PARTICULAR, THE 90 PER CENT CREDIT IS RELIED UPON AS SUPPORTING THAT
CONCLUSION.  BUT BEFORE THE STATUTE SUCCUMBS TO AN ASSAULT UPON THESE
LINES, TWO PROPOSITIONS MUST BE MADE OUT BY THE ASSAILANT.  CINCINNATI
SOAP CO. V. UNITED STATES, SUPRA.  THERE MUST BE A SHOWING IN THE FIRST
PLACE THAT SEPARATED FROM THE CREDIT THE REVENUE PROVISIONS ARE
INCAPABLE OF STANDING BY THEMSELVES.  THERE MUST BE A SHOWING IN THE
SECOND PLACE THAT THE TAX AND THE CREDIT IN COMBINATION ARE WEAPONS OF
COERCION, DESTROYING OR IMPAIRING THE AUTONOMY OF THE STATES.  THE
TRUTH OF EACH PROPOSITION BEING ESSENTIAL TO THE SUCCESS OF THE
ASSAULT, WE PASS FOR CONVENIENCE TO A CONSIDERATION OF THE SECOND,
WITHOUT PAUSING TO INQUIRE WHETHER THERE HAS BEEN A DEMONSTRATION OF
THE FIRST. 

TO DRAW THE LINE INTELLIGENTLY BETWEEN DURESS AND INDUCEMENT THERE IS
NEED TO REMIND OURSELVES OF FACTS AS TO THE PROBLEM OF UNEMPLOYMENT
THAT ARE NOW MATTERS OF COMMON KNOWLEDGE.  WEST COAST HOTEL CO. V.
PARRISH, 300 U.S. 379.  THE RELEVANT STATISTICS ARE GATHERED IN THE
BRIEF OF COUNSEL FOR THE GOVERNMENT.  OF THE MANY AVAILABLE FIGURES A
FEW ONLY WILL BE MENTIONED.  DURING THE YEARS 1929 TO 1936, WHEN THE
COUNTRY WAS PASSING THROUGH A CYCLICAL DEPRESSION, THE NUMBER OF THE
UNEMPLOYED MOUNTED TO UNPRECEDENTED HEIGHTS.  OFTEN THE AVERAGE WAS
MORE THAN 10 MILLION; AT TIMES A PEAK WAS ATTAINED OF 16 MILLION OR
MORE.  DISASTER TO THE BREADWINNER MEANT DISASTER TO DEPENDENTS. 
ACCORDINGLY THE ROLL OF THE UNEMPLOYED, ITSELF FORMIDABLE ENOUGH, WAS
ONLY A PARTIAL ROLL OF THE DESTITUTE OR NEEDY.  THE FACT DEVELOPED
QUICKLY THAT THE STATES WERE UNABLE TO GIVE THE REQUISITE RELIEF.  THE
PROBLEM HAD BECOME NATIONAL IN AREA AND DIMENSIONS.  THERE WAS NEED OF
HELP FROM THE NATION IF THE PEOPLE WERE NOT TO STARVE.  IT IS TOO LATE
TODAY FOR THE ARGUMENT TO BE HEARD WITH TOLERANCE THAT IN A CRISIS SO
EXTREME THE USE OF THE MONEYS OF THE NATION TO RELIEVE THE UNEMPLOYED
AND THEIR DEPENDENTS IS A USE FOR ANY PURPOSE NARROWER THAN THE
PROMOTION OF THE GENERAL WELFARE.  CF. UNITED STATES V. BUTLER, 297
U.S. 1, 65, 66, HELVERING V. DAVIS, DECIDED HEREWITH, POST, P. 619. 
THE NATION RESPONDED TO THE CALL OF THE DISTRESSED.  BETWEEN JANUARY 1,
1933 AND JULY 1, 1936, THE STATES (ACCORDING TO STATISTICS SUBMITTED BY
THE GOVERNMENT) INCURRED OBLIGATIONS OF $689,291,802 FOR EMERGENCY
RELIEF; LOCAL SUBDIVISIONS AN ADDITIONAL $775,675,366.  IN THE SAME
PERIOD THE OBLIGATIONS FOR EMERGENCY RELIEF INCURRED BY THE NATIONAL
GOVERNMENT WERE $2,929,307,125, OR TWICE THE OBLIGATIONS OF STATES AND
LOCAL AGENCIES COMBINED.  ACCORDING TO THE PRESIDENT'S BUDGET MESSAGE
FOR THE FISCAL YEAR 1938, THE NATIONAL GOVERNMENT EXPENDED FOR PUBLIC
WORKS AND UNEMPLOYMENT RELIEF FOR THE THREE FISCAL YEARS 1934, 1935,
AND 1936, THE STUPENDOUS TOTAL OF $8,681,000,000.  THE PARENS PATRIAE
HAS MANY REASONS - FISCAL AND ECONOMIC AS WELL AS SOCIAL AND MORAL -
FOR PLANNING TO MITIGATE DISASTERS THAT BRING THESE BURDENS IN THEIR
TRAIN. 

IN THE PRESENCE OF THIS URGENT NEED FOR SOME REMEDIAL EXPEDIENT, THE
QUESTION IS TO BE ANSWERED WHETHER THE EXPEDIENT ADOPTED HAS OVERLEPT
THE BOUNDS OF POWER.  THE ASSAILANTS OF THE STATUTE SAY THAT ITS
DOMINANT END AND AIM IS TO DRIVE THE STATE LEGISLATURES UNDER THE WHIP
OF ECONOMIC PRESSURE INTO THE ENACTMENT OF UNEMPLOYMENT COMPENSATION
LAWS AT THE BIDDING OF THE CENTRAL GOVERNMENT.  SUPPORTERS OF THE
STATUTE SAY THAT ITS OPERATION IS NOT CONSTRAINT, BUT THE CREATION OF A
LARGER FREEDOM, THE STATES AND THE NATION JOINING IN A COOPERATIVE
ENDEAVOR TO AVERT A COMMON EVIL.  BEFORE CONGRESS ACTED, UNEMPLOYMENT
COMPENSATION INSURANCE WAS STILL, FOR THE MOST PART, A PROJECT AND NO
MORE.  WISCONSIN WAS THE PIONEER.  HER STATUTE WAS ADOPTED IN 1931.  AT
TIMES BILLS FOR SUCH INSURANCE WERE INTRODUCED ELSEWHERE, BUT THEY DID
NOT REACH THE STAGE OF LAW.  IN 1935, FOUR STATES (CALIFORNIA,
MASSACHUSETTS, NEW HAMPSHIRE AND NEW YORK) PASSED UNEMPLOYMENT LAWS ON
THE EVE OF THE ADOPTION OF THE SOCIAL SECURITY ACT, AND TWO OTHERS DID
LIKEWISE AFTER THE FEDERAL ACT AND LATER IN THE YEAR.  THE STATUTES
DIFFERED TO SOME EXTENT IN TYPE, BUT WERE DIRECTED TO A COMMON END.  IN
1936, TWENTY-EIGHT OTHER STATES FELL IN LINE, AND EIGHT MORE THE
PRESENT YEAR.  BUT IF STATES HAD BEEN HOLDING BACK BEFORE THE PASSAGE
OF THE FEDERAL LAW, INACTION WAS NOT OWING, FOR THE MOST PART, TO THE
LACK OF SYMPATHETIC INTEREST.  MANY HELD BACK THROUGH ALARM LEST, IN
LAYING SUCH A TOLL UPON THEIR INDUSTRIES, THEY WOULD PLACE THEMSELVES
IN A POSITION OF ECONOMIC DISADVANTAGE AS COMPARED WITH NEIGHBORS OR
COMPETITORS.  SEE HOUSE REPORT, NO. 615, 74TH CONGRESS, 1ST SESSION, P.
8; SENATE REPORT, NO. 628, 74TH CONGRESS, 1ST SESSION, P. 11.  FN9  TWO
CONSEQUENCES ENSUED.  ONE WAS THAT THE FREEDOM OF A STATE TO CONTRIBUTE
ITS FAIR SHARE TO THE SOLUTION OF A NATIONAL PROBLEM WAS PARALYZED BY
FEAR.  THE OTHER WAS THAT IN SO FAR AS THERE WAS FAILURE BY THE STATES
TO CONTRIBUTE RELIEF ACCORDING TO THE MEASURE OF THEIR CAPACITY, A
DISPROPORTIONATE BURDEN, AND A MOUNTAINOUS ONE, WAS LAID UPON THE
RESOURCES OF THE GOVERNMENT OF THE NATION. 

THE SOCIAL SECURITY ACT IS AN ATTEMPT TO FIND A METHOD BY WHICH ALL
THESE PUBLIC AGENCIES MAY WORK TOGETHER TO A COMMON END.  EVERY DOLLAR
OF THE NEW TAXES WILL CONTINUE IN ALL LIKELIHOOD TO BE USED AND NEEDED
BY THE NATION AS LONG AS STATES ARE UNWILLING, WHETHER THROUGH TIMIDITY
OR FOR OTHER MOTIVES, TO DO WHAT CAN BE DONE AT HOME.  AT LEAST THE
INFERENCE IS PERMISSIBLE THAT CONGRESS SO BELIEVED, THOUGH RETAINING
UNDIMINISHED FREEDOM TO SPEND THE MONEY AS IT PLEASED.  ON THE OTHER
HAND FULFILMENT OF THE HOME DUTY WILL BE LIGHTENED AND ENCOURAGED BY
CREDITING THE TAXPAYER UPON HIS ACCOUNT WITH THE TREASURY OF THE NATION
TO THE EXTENT THAT HIS CONTRIBUTIONS UNDER THE LAWS OF THE LOCALITY
HAVE SIMPLIFIED OR DIMINISHED THE PROBLEM OF RELIEF AND THE PROBABLE
DEMAND UPON THE RESOURCES OF THE FISC.  DUPLICATED TAXES, OR BURDENS
THAT APPROACH THEM, ARE RECOGNIZED HARDSHIPS THAT GOVERNMENT, STATE OR
NATIONAL, MAY PROPERLY AVOID.  HENNEFORD V. SILAS MASON CO., SUPRA;
KIDD V. ALABAMA, 188 U.S. 730, 732; WATSON V. STATE COMPTROLLER, 254
U.S. 122, 125.  IF CONGRESS BELIEVED THAT THE GENERAL WELFARE WOULD
BETTER BE PROMOTED BY RELIEF THROUGH LOCAL UNITS THAN BY THE SYSTEM
THEN IN VOGUE, THE COOPERATING LOCALITIES OUGHT NOT IN ALL FAIRNESS TO
PAY A SECOND TIME. 

WHO THEN IS COERCED THROUGH THE OPERATION OF THIS STATUTE?  NOT THE
TAXPAYER.  HE PAYS IN FULFILMENT OF THE MANDATE OF THE LOCAL
LEGISLATURE.  NOT THE STATE.  EVEN NOW SHE DOES NOT OFFER A SUGGESTION
THAT IN PASSING THE UNEMPLOYMENT LAW SHE WAS AFFECTED BY DURESS.  SEE
CARMICHAEL V. SOUTHERN COAL & COKE CO., AND CARMICHAEL V. GULF STATES
PAPER CORP., SUPRA.  FOR ALL THAT APPEARS SHE IS SATISFIED WITH HER
CHOICE, AND WOULD BE SORELY DISAPPOINTED IF IT WERE NOW TO BE
ANNULLED.  THE DIFFICULTY WITH THE PETITIONER'S CONTENTION IS THAT IT
CONFUSES MOTIVE WITH COERCION.  "EVERY TAX IS IN SOME MEASURE
REGULATORY.  TO SOME EXTENT IT INTERPOSES AN ECONOMIC IMPEDIMENT TO THE
ACTIVITY TAXED AS COMPARED WITH OTHERS NOT TAXED."  SONZINSKY V. UNITED
STATES, SUPRA.  IN LIKE MANNER EVERY REBATE FROM A TAX WHEN CONDITIONED
UPON CONDUCT IS IN SOME MEASURE A TEMPTATION.  BUT TO HOLD THAT MOTIVE
OR TEMPTATION IS EQUIVALENT TO COERCION IS TO PLUNGE THE LAW IN ENDLESS
DIFFICULTIES.  THE OUTCOME OF SUCH A DOCTRINE IS THE ACCEPTANCE OF A
PHILOSOPHICAL DETERMINISM BY WHICH CHOICE BECOMES IMPOSSIBLE.  TILL NOW
THE LAW HAS BEEN GUIDED BY A ROBUST COMMON SENSE WHICH ASSUMES THE
FREEDOM OF THE WILL AS A WORKING HYPOTHESIS IN THE SOLUTION OF ITS
PROBLEMS.  THE WISDOM OF THE HYPOTHESIS HAS ILLUSTRATION IN THIS CASE. 
NOTHING IN THE CASE SUGGESTS THE EXERTION OF A POWER AKIN TO UNDUE
INFLUENCE, IF WE ASSUME THAT SUCH A CONCEPT CAN EVER BE APPLIED WITH
FITNESS TO THE RELATIONS BETWEEN STATE AND NATION.  EVEN ON THAT
ASSUMPTION THE LOCATION OF THE POINT AT WHICH PRESSURE TURNS INTO
COMPULSION, AND CEASES TO BE INDUCEMENT, WOULD BE A QUESTION OF DEGREE,
- AT TIMES, PERHAPS, OF FACT.  THE POINT HAD NOT BEEN REACHED WHEN
ALABAMA MADE HER CHOICE.  WE CANNOT SAY THAT SHE WAS ACTING, NOT OF HER
UNFETTERED WILL, BUT UNDER THE STRAIN OF A PERSUASION EQUIVALENT TO
UNDUE INFLUENCE, WHEN SHE CHOSE TO HAVE RELIEF ADMINISTERED UNDER LAWS
OF HER OWN MAKING, BY AGENTS OF HER OWN SELECTION, INSTEAD OF UNDER
FEDERAL LAWS, ADMINISTERED BY FEDERAL OFFICERS, WITH ALL THE ENSUING
EVILS, AT LEAST TO MANY MINDS, OF FEDERAL PATRONAGE AND POWER.  THERE
WOULD BE A STRANGE IRONY, INDEED, IF HER CHOICE WERE NOW TO BE ANNULLED
ON THE BASIS OF AN ASSUMED DURESS IN THE ENACTMENT OF A STATUTE WHICH
HER COURTS HAVE ACCEPTED AS A TRUE EXPRESSION OF HER WILL.  BEELAND
WHOLESALE CO. V. KAUFMAN, SUPRA. WE THINK THE CHOICE MUST STAND. 

IN RULING AS WE DO, WE LEAVE MANY QUESTIONS OPEN.  WE DO NOT SAY THAT
A TAX IS VALID, WHEN IMPOSED BY ACT OF CONGRESS, IF IT IS LAID UPON THE
CONDITION THAT A STATE MAY ESCAPE ITS OPERATION THROUGH THE ADOPTION OF
A STATUTE UNRELATED IN SUBJECT MATTER TO ACTIVITIES FAIRLY WITHIN THE
SCOPE OF NATIONAL POLICY AND POWER.  NO SUCH QUESTION IS BEFORE US.  IN
THE TENDER OF THIS CREDIT CONGRESS DOES NOT INTRUDE UPON FIELDS FOREIGN
TO ITS FUNCTION.  THE PURPOSE OF ITS INTERVENTION, AS WE HAVE SHOWN, IS
TO SAFEGUARD ITS OWN TREASURY AND AS AN INCIDENT TO THAT PROTECTION TO
PLACE THE STATES UPON A FOOTING OF EQUAL OPPORTUNITY.  DRAINS UPON ITS
OWN RESOURCES ARE TO BE CHECKED; OBSTRUCTIONS TO THE FREEDOM OF THE
STATES ARE TO BE LEVELED.  IT IS ONE THING TO IMPOSE A TAX DEPENDENT
UPON THE CONDUCT OF THE TAXPAYERS, OR OF THE STATE IN WHICH THEY LIVE,
WHERE THE CONDUCT TO BE STIMULATED OR DISCOURAGED IS UNRELATED TO THE
FISCAL NEED SUBSERVED BY THE TAX IN ITS NORMAL OPERATION, OR TO ANY
OTHER END LEGITIMATELY NATIONAL.  THE CHILD LABOR TAX CASE, 259 U.S.
20, AND HILL V. WALLACE, 259 U.S. 44, WERE DECIDED IN THE BELIEF THAT
THE STATUTES THERE CONDEMNED WERE EXPOSED TO THAT REPROACH.  CF. UNITED
STATES V. CONSTANTINE, 296 U.S. 287.  IT IS QUITE ANOTHER THING TO SAY
THAT A TAX WILL BE ABATED UPON THE DOING OF AN ACT THAT WILL SATISFY
THE FISCAL NEED, THE TAX AND THE ALTERNATIVE BEING APPROXIMATE
EQUIVALENTS.  IN SUCH CIRCUMSTANCES, IF IN NO OTHERS, INDUCEMENT OR
PERSUASION DOES NOT GO BEYOND THE BOUNDS OF POWER.  WE DO NOT FIX THE
OUTERMOST LINE.  ENOUGH FOR PRESENT PURPOSES THAT WHEREVER THE LINE MAY
BE, THIS STATUTE IS WITHIN IT. DEFINITION MORE PRECISE MUST ABIDE THE
WISDOM OF THE FUTURE. 

FLORIDA V. MELLON, 273 U.S. 12, SUPPLIES US WITH A PRECEDENT, IF
PRECEDENT BE NEEDED.  WHAT WAS IN CONTROVERSY THERE WAS SEC. 301 OF THE
REVENUE ACT OF 1926, WHICH IMPOSES A TAX UPON THE TRANSFER OF A
DECEDENT'S ESTATE, WHILE AT THE SAME TIME PERMITTING A CREDIT, NOT
EXCEEDING 80 PER CENT, FOR "THE AMOUNT OF ANY ESTATE, INHERITANCE,
LEGACY, OR SUCCESSION TAXES ACTUALLY PAID TO ANY STATE OR TERRITORY." 
FLORIDA CHALLENGED THAT PROVISION AS UNLAWFUL.  FLORIDA HAD NO
INHERITANCE TAXES AND ALLEGED THAT UNDER ITS CONSTITUTION IT COULD NOT
LEVY ANY.  273 U.S. 12, 15.  INDEED, BY ABOLISHING INHERITANCE TAXES,
IT HAD HOPED TO INDUCE WEALTHY PERSONS TO BECOME ITS CITIZENS.  SEE 67
CONG. REC., PART 1, PP. 735, 752.  IT ARGUED AT OUR BAR THAT "THE
ESTATE TAX PROVISION WAS NOT PASSED FOR THE PURPOSE OF RAISING FEDERAL
REVENUE" (273 U.S. 12, 14), BUT RATHER "TO COERCE STATES INTO ADOPTING
ESTATE OR INHERITANCE TAX LAWS."  273 U.S. 12, 13.  IN FACT, AS A
RESULT OF THE 80 PER CENT CREDIT, MATERIAL CHANGES OF SUCH LAWS WERE
MADE IN 36 STATES.  FN10  IN THE FACE OF THAT ATTACK WE UPHELD THE ACT
AS VALID.  CF. MASSACHUSETTS V. MELLON, 262 U.S. 447, 482; ALSO ACT OF
AUGUST 5, 1861, C. 45, 12 STAT. 292; ACT OF MAY 13, 1862, C. 66, 12
STAT. 384. 

UNITED STATES V. BUTLER, SUPRA, IS CITED BY PETITIONER AS A DECISION
TO THE CONTRARY.  THERE A TAX WAS IMPOSED ON PROCESSORS OF FARM
PRODUCTS, THE PROCEEDS TO BE PAID TO FARMERS WHO WOULD REDUCE THEIR
ACREAGE AND CROPS UNDER AGREEMENTS WITH THE SECRETARY OF AGRICULTURE,
THE PLAN OF THE ACT BEING TO INCREASE THE PRICES OF CERTAIN FARM
PRODUCTS BY DECREASING THE QUANTITIES PRODUCED.  THE COURT HELD (1)
THAT THE SO-CALLED TAX WAS NOT A TRUE ONE (PP. 56, 61), THE PROCEEDS
BEING EARMARKED FOR THE BENEFIT OF FARMERS COMPLYING WITH THE
PRESCRIBED CONDITIONS, (2) THAT THERE WAS AN ATTEMPT TO REGULATE
PRODUCTION WITHOUT THE CONSENT OF THE STATE IN WHICH PRODUCTION WAS
AFFECTED, AND (3) THAT THE PAYMENTS TO FARMERS WERE COUPLED WITH
COERCIVE CONTRACTS (P. 73), UNLAWFUL IN THEIR AIM AND OPPRESSIVE IN
THEIR CONSEQUENCES.  THE DECISION WAS BY A DIVIDED COURT, A MINORITY
TAKING THE VIEW THAT THE OBJECTIONS WERE UNTENABLE.  NONE OF THEM IS
APPLICABLE TO THE SITUATION HERE DEVELOPED. 

(A)  THE PROCEEDS OF THE TAX IN CONTROVERSY ARE NOT EARMARKED FOR A
SPECIAL GROUP. 

(B)  THE UNEMPLOYMENT COMPENSATION LAW WHICH IS A CONDITION OF THE
CREDIT HAS HAD THE APPROVAL OF THE STATE AND COULD NOT BE A LAW WITHOUT
IT. 

(C)  THE CONDITION IS NOT LINKED TO AN IRREVOCABLE AGREEMENT, FOR THE
STATE AT ITS PLEASURE MAY REPEAL ITS UNEMPLOYMENT LAW, SEC. 903(A)(6),
TERMINATE THE CREDIT, AND PLACE ITSELF WHERE IT WAS BEFORE THE CREDIT
WAS ACCEPTED. 

(D)  THE CONDITION IS NOT DIRECTED TO THE ATTAINMENT OF AN UNLAWFUL
END, BUT TO AN END, THE RELIEF OF UNEMPLOYMENT, FOR WHICH NATION AND
STATE MAY LAWFULLY COOPERATE. 

FOURTH.  THE STATUTE DOES NOT CALL FOR A SURRENDER BY THE STATES OF
POWERS ESSENTIAL TO THEIR QUASI-SOVEREIGN EXISTENCE. 

ARGUMENT TO THE CONTRARY HAS ITS SOURCE IN TWO SECTIONS OF THE ACT. 
ONE SECTION (903)  FN11 DEFINES THE MINIMUM CRITERIA TO WHICH A STATE
COMPENSATION SYSTEM IS REQUIRED TO CONFORM IF IT IS TO BE ACCEPTED BY
THE BOARD AS THE BASIS FOR A CREDIT.  THE OTHER SECTION (904)  FN12
ROUNDS OUT THE REQUIREMENT WITH COMPLEMENTARY RIGHTS AND DUTIES.  NOT
ALL THE CRITERIA OR THEIR INCIDENTS ARE CHALLENGED AS UNLAWFUL.  WE
WILL SPEAK OF THEM FIRST GENERALLY, AND THEN MORE SPECIFICALLY IN SO
FAR AS THEY ARE QUESTIONED. 

A CREDIT TO TAXPAYERS FOR PAYMENTS MADE TO A STATE UNDER A STATE
UNEMPLOYMENT LAW WILL BE MANIFESTLY FUTILE IN THE ABSENCE OF SOME
ASSURANCE THAT THE LAW LEADING TO THE CREDIT IS IN TRUTH WHAT IT
PROFESSES TO BE.  AN UNEMPLOYMENT LAW FRAMED IN SUCH A WAY THAT THE
UNEMPLOYED WHO LOOK TO IT WILL BE DEPRIVED OF REASONABLE PROTECTION IS
ONE IN NAME AND NOTHING MORE.  WHAT IS BASIC AND ESSENTIAL MAY BE
ASSURED BY SUITABLE CONDITIONS.  THE TERMS EMBODIED IN THESE SECTIONS
ARE DIRECTED TO THAT END.  A WIDE RANGE OF JUDGMENT IS GIVEN TO THE
SEVERAL STATES AS TO THE PARTICULAR TYPE OF STATUTE TO BE SPREAD UPON
THEIR BOOKS.  FOR ANYTHING TO THE CONTRARY IN THE PROVISIONS OF THIS
ACT THEY MAY USE THE POOLED UNEMPLOYMENT FORM, WHICH IS IN EFFECT WITH
VARIATIONS IN ALABAMA, CALIFORNIA, MICHIGAN, NEW YORK, AND ELSEWHERE. 
THEY MAY ESTABLISH A SYSTEM OF MERIT RATINGS APPLICABLE AT ONCE OR TO
GO INTO EFFECT LATER ON THE BASIS OF SUBSEQUENT EXPERIENCE.  CF. SECS.
909, 910.  THEY MAY PROVIDE FOR EMPLOYEE CONTRIBUTIONS AS IN ALABAMA
AND CALIFORNIA, OR PUT THE ENTIRE BURDEN UPON THE EMPLOYER AS IN NEW
YORK.  THEY MAY CHOOSE A SYSTEM OF UNEMPLOYMENT RESERVE ACCOUNTS BY
WHICH AN EMPLOYER IS PERMITTED AFTER HIS RESERVE HAS ACCUMULATED TO
CONTRIBUTE AT A REDUCED RATE OR EVEN NOT AT ALL.  THIS IS THE SYSTEM
WHICH HAD ITS ORIGIN IN WISCONSIN.  WHAT THEY MAY NOT DO, IF THEY WOULD
EARN THE CREDIT, IS TO DEPART FROM THOSE STANDARDS WHICH IN THE
JUDGMENT OF CONGRESS ARE TO BE RANKED AS FUNDAMENTAL.  EVEN IF OPINION
MAY DIFFER AS TO THE FUNDAMENTAL QUALITY OF ONE OR MORE OF THE
CONDITIONS, THE DIFFERENCE WILL NOT AVAIL TO VITIATE THE STATUTE.  IN
DETERMINING ESSENTIALS CONGRESS MUST HAVE THE BENEFIT OF A FAIR MARGIN
OF DISCRETION.  ONE CANNOT SAY WITH REASON THAT THIS MARGIN HAS BEEN
EXCEEDED, OR THAT THE BASIC STANDARDS HAVE BEEN DETERMINED IN ANY
ARBITRARY FASHION.  IN THE EVENT THAT SOME PARTICULAR CONDITION SHALL
BE FOUND TO BE TOO UNCERTAIN TO BE CAPABLE OF ENFORCEMENT, IT MAY BE
SEVERED FROM THE OTHERS, AND WHAT IS LEFT WILL STILL BE VALID. 

WE ARE TO KEEP IN MIND STEADILY THAT THE CONDITIONS TO BE APPROVED BY
THE BOARD AS THE BASIS FOR A CREDIT ARE NOT PROVISIONS OF A CONTRACT,
BUT TERMS OF A STATUTE, WHICH MAY BE ALTERED OR REPEALED.  SEC.
903(A)(6).  THE STATE DOES NOT BIND ITSELF TO KEEP THE LAW IN FORCE. 
IT DOES NOT EVEN BIND ITSELF THAT THE MONEYS PAID INTO THE FEDERAL FUND
WILL BE KEPT THERE INDEFINITELY OR FOR ANY STATED TIME.  ON THE
CONTRARY, THE SECRETARY OF THE TREASURY WILL HONOR A REQUISITION FOR
THE WHOLE OR ANY PART OF THE DEPOSIT IN THE FUND WHENEVER ONE IS MADE
BY THE APPROPRIATE OFFICIALS.  THE ONLY CONSEQUENCE OF THE REPEAL OR
EXCESSIVE AMENDMENT OF THE STATUTE, OR THE EXPENDITURE OF THE MONEY,
WHEN REQUISITIONED, FOR OTHER THAN COMPENSATION USES OR ADMINISTRATIVE
EXPENSES, IS THAT APPROVAL OF THE LAW WILL END, AND WITH IT THE
ALLOWANCE OF A CREDIT, UPON NOTICE TO THE STATE AGENCY AND AN
OPPORTUNITY FOR HEARING.  SEC. 903(B)(C). 

THESE BASIC CONSIDERATIONS ARE IN TRUTH A SOLVENT OF THE PROBLEM. 
SUBJECTED TO THEIR TEST, THE SEVERAL OBJECTIONS ON THE SCORE OF
ABDICATION ARE FOUND TO BE UNREAL. 

THUS, THE ARGUMENT IS MADE THAT BY FORCE OF AN AGREEMENT THE MONEYS
WHEN WITHDRAWN MUST BE "PAID THROUGH PUBLIC EMPLOYMENT OFFICES IN THE
STATE OR THROUGH SUCH OTHER AGENCIES AS THE BOARD MAY APPROVE."  SEC.
903(A)(1).  BUT IN TRUTH THERE IS NO AGREEMENT AS TO THE METHOD OF
DISBURSEMENT.  THERE IS ONLY A CONDITION WHICH THE STATE IS FREE AT
PLEASURE TO DISREGARD OR TO FULFILL.  MOREOVER, APPROVAL IS NOT
REQUISITE IF PUBLIC EMPLOYMENT OFFICES ARE MADE THE DISBURSING
INSTRUMENTS.  APPROVAL IS TO BE A CHECK UPON RESORT TO "OTHER AGENCIES"
THAT MAY, PERCHANCE, BE IRRESPONSIBLE.  A STATE LOOKING FOR A CREDIT
MUST GIVE ASSURANCE THAT HER SYSTEM HAS BEEN ORGANIZED UPON A BASE OF
RATIONALITY. 

THERE IS ARGUMENT AGAIN THAT THE MONEYS WHEN WITHDRAWN ARE TO BE
DEVOTED TO SPECIFIC USES, THE RELIEF OF UNEMPLOYMENT, AND THAT BY
AGREEMENT FOR SUCH PAYMENT THE QUASI-SOVEREIGN POSITION OF THE STATE
HAS BEEN IMPAIRED, IF NOT ABANDONED.  BUT AGAIN THERE IS CONFUSION
BETWEEN PROMISE AND CONDITION.  ALABAMA IS STILL FREE, WITHOUT BREACH
OF AN AGREEMENT, TO CHANGE HER SYSTEM OVER NIGHT.  NO OFFICER OR AGENCY
OF THE NATIONAL GOVERNMENT CAN FORCE A COMPENSATION LAW UPON HER OR
KEEP IT IN EXISTENCE.  NO OFFICER OR AGENCY OF THAT GOVERNMENT, EITHER
BY SUIT OR OTHER MEANS, CAN SUPERVISE OR CONTROL THE APPLICATION OF THE
PAYMENTS. 

FINALLY AND CHIEFLY, ABDICATION IS SUPPOSED TO FOLLOW FROM SEC. 904
OF THE STATUTE AND THE PARTS OF SEC. 903 THAT ARE COMPLEMENTARY
THERETO.  SEC. 903(A)(3).  BY THESE THE SECRETARY OF THE TREASURY IS
AUTHORIZED AND DIRECTED TO RECEIVE AND HOLD IN THE UNEMPLOYMENT TRUST
FUND ALL MONEYS DEPOSITED THEREIN BY A STATE AGENCY FOR A STATE
UNEMPLOYMENT FUND AND TO INVEST IN OBLIGATIONS OF THE UNITED STATES
SUCH PORTION OF THE FUND AS IS NOT IN HIS JUDGMENT REQUIRED TO MEET
CURRENT WITHDRAWALS.  WE ARE TOLD THAT ALABAMA IN CONSENTING TO THAT
DEPOSIT HAS RENOUNCED THE PLENITUDE OF POWER INHERENT IN HER
STATEHOOD. 

THE SAME PERVASIVE MISCONCEPTION IS IN EVIDENCE AGAIN.  ALL THAT THE
STATE HAS DONE IS TO SAY IN EFFECT THROUGH THE ENACTMENT OF A STATUTE
THAT HER AGENTS SHALL BE AUTHORIZED TO DEPOSIT THE UNEMPLOYMENT TAX
RECEIPTS IN THE TREASURY AT WASHINGTON.  ALABAMA UNEMPLOYMENT ACT OF
SEPTEMBER 14, 1935, SEC. 10(I).  THE STATUTE MAY BE REPEALED.  SEC.
903(A)(6).  THE CONSENT MAY BE REVOKED.  THE DEPOSITS MAY BE
WITHDRAWN.  THE MOMENT THE STATE COMMISSION GIVES NOTICE TO THE
DEPOSITARY THAT IT WOULD LIKE THE MONEYS BACK, THE TREASURER WILL
RETURN THEM.  TO FIND STATE DESTRUCTION THERE IS TO FIND IT ALMOST
ANYWHERE.  WITH NEARLY AS MUCH REASON ONE MIGHT SAY THAT A STATE
ABDICATES ITS FUNCTIONS WHEN IT PLACES THE STATE MONEYS ON DEPOSIT IN A
NATIONAL BANK. 

THERE ARE VERY GOOD REASONS OF FISCAL AND GOVERNMENTAL POLICY WHY A
STATE SHOULD BE WILLING TO MAKE THE SECRETARY OF THE TREASURY THE
CUSTODIAN OF THE FUND.  HIS POSSESSION OF THE MONEYS AND HIS CONTROL OF
INVESTMENTS WILL BE AN ASSURANCE OF STABILITY AND SAFETY IN TIMES OF
STRESS AND STRAIN.  A REPORT OF THE WAYS AND MEANS COMMITTEE OF THE
HOUSE OF REPRESENTATIVES, QUOTED IN THE MARGIN, DEVELOPS THE SITUATION
CLEARLY.  FN13  NOR IS THERE RISK OF LOSS OR WASTE.  THE CREDIT OF THE
TREASURY IS AT ALL TIMES BACK OF THE DEPOSIT, WITH THE RESULT THAT THE
RIGHT OF WITHDRAWAL WILL BE UNAFFECTED BY THE FATE OF ANY INTERMEDIATE
INVESTMENTS, JUST AS IF A CHECKING ACCOUNT IN THE USUAL FORM HAD BEEN
OPENED IN A BANK. 

THE INFERENCE OF ABDICATION THUS DISSOLVES IN THINNEST AIR WHEN THE
DEPOSIT IS CONCEIVED OF AS DEPENDENT UPON A STATUTORY CONSENT, AND NOT
UPON A CONTRACT EFFECTIVE TO CREATE A DUTY.  BY THIS WE DO NOT INTIMATE
THAT THE CONCLUSION WOULD BE DIFFERENT IF A CONTRACT WERE DISCOVERED. 
EVEN SOVEREIGNS MAY CONTRACT WITHOUT DEROGATING FROM THEIR
SOVEREIGNTY.  PERRY V. UNITED STATES, 294 U.S. 330, 353; 1 OPPENHEIM,
INTERNATIONAL LAW, 4TH ED., SECS. 493, 494; HALL, INTERNATIONAL LAW,
8TH ED., SEC. 107; 2 HYDE, INTERNATIONAL LAW, SEC. 489.  THE STATES ARE
AT LIBERTY, UPON OBTAINING THE CONSENT OF CONGRESS, TO MAKE AGREEMENTS
WITH ONE ANOTHER.  CONSTITUTION, ART. I, SEC. 10, PAR. 3.  POOLE V.
FLEEGER, 11 PET. 185, 209; RHODE ISLAND V. MASSACHUSETTS, 12 PET. 657,
725.  WE FIND NO ROOM FOR DOUBT THAT THEY MAY DO THE LIKE WITH CONGRESS
IF THE ESSENCE OF THEIR STATEHOOD IS MAINTAINED WITHOUT IMPAIRMENT. 
FN14  ALABAMA IS SEEKING AND OBTAINING A CREDIT OF MANY MILLIONS IN
FAVOR OF HER CITIZENS OUT OF THE TREASURY OF THE NATION.  NOWHERE IN
OUR SCHEME OF GOVERNMENT - IN THE LIMITATIONS EXPRESS OR IMPLIED OF OUR
FEDERAL CONSTITUTION - DO WE FIND THAT SHE IS PROHIBITED FROM ASSENTING
TO CONDITIONS THAT WILL ASSURE A FAIR AND JUST REQUITAL FOR BENEFITS
RECEIVED.  BUT WE WILL NOT LABOR THE POINT FURTHER.  AN UNREAL
PROHIBITION DIRECTED TO AN UNREAL AGREEMENT WILL NOT VITIATE AN ACT OF
CONGRESS, AND CAUSE IT TO COLLAPSE IN RUIN. 

FIFTH.  TITLE III OF THE ACT IS SEPARABLE FROM TITLE IX, AND ITS
VALIDITY IS NOT AT ISSUE. 

THE ESSENTIAL PROVISIONS OF THAT TITLE HAVE BEEN STATED IN THE
OPINION.  AS ALREADY POINTED OUT, THE TITLE DOES NOT APPROPRIATE A
DOLLAR OF THE PUBLIC MONEYS.  IT DOES NO MORE THAN AUTHORIZE
APPROPRIATIONS TO BE MADE IN THE FUTURE FOR THE PURPOSE OF ASSISTING
STATES IN THE ADMINISTRATION OF THEIR LAWS, IF CONGRESS SHALL DECIDE
THAT APPROPRIATIONS ARE DESIRABLE.  THE TITLE MIGHT BE EXPUNGED, AND
TITLE IX WOULD STAND INTACT.  WITHOUT A SEVERABILITY CLAUSE WE SHOULD
STILL BE LED TO THAT CONCLUSION.  THE PRESENCE OF SUCH A CLAUSE (SEC.
1103) MAKES THE CONCLUSION EVEN CLEARER.  WILLIAMS V. STANDARD OIL CO.,
278 U.S. 235, 242; UTAH POWER & LIGHT CO. V. PFOST, 286 U.S. 165, 184;
CARTER V. CARTER COAL CO., 298 U.S. 238, 312. 

THE JUDGMENT IS AFFIRMED.    FN1  SEC. 903.  (A)  THE SOCIAL SECURITY
BOARD SHALL APPROVE ANY STATE LAW SUBMITTED TO IT, WITHIN THIRTY DAYS
OF SUCH SUBMISSION, WHICH IT FINDS PROVIDES THAT - 

(1)  ALL COMPENSATION IS TO BE PAID THROUGH PUBLIC EMPLOYMENT OFFICES
IN THE STATE OR SUCH OTHER AGENCIES AS THE BOARD MAY APPROVE: 

(2)  NO COMPENSATION SHALL BE PAYABLE WITH RESPECT TO ANY DAY OF
UNEMPLOYMENT OCCURRING WITHIN TWO YEARS AFTER THE FIRST DAY OF THE
FIRST PERIOD WITH RESPECT TO WHICH CONTRIBUTIONS ARE REQUIRED; 

(3)  ALL MONEY RECEIVED IN THE UNEMPLOYMENT FUND SHALL IMMEDIATELY
UPON SUCH RECEIPT BE PAID OVER TO THE SECRETARY OF THE TREASURY TO THE
CREDIT OF THE UNEMPLOYMENT TRUST FUND ESTABLISHED BY SECTION 904; 

(4)  ALL MONEY WITHDRAWN FROM THE UNEMPLOYMENT TRUST FUND BY THE
STATE AGENCY SHALL BE USED SOLELY IN THE PAYMENT OF COMPENSATION,
EXCLUSIVE OF EXPENSES OF ADMINISTRATION; 

(5)  COMPENSATION SHALL NOT BE DENIED IN SUCH STATE TO ANY OTHERWISE
ELIGIBLE INDIVIDUAL FOR REFUSING TO ACCEPT NEW WORK UNDER ANY OF THE
FOLLOWING CONDITIONS:  (A)  IF THE POSITION OFFERED IS VACANT DUE
DIRECTLY TO A STRIKE, LOCKOUT, OR OTHER LABOR DISPUTE; (B) IF THE
WAGES, HOURS, OR OTHER CONDITIONS OF THE WORK OFFERED ARE SUBSTANTIALLY
LESS FAVORABLE TO THE INDIVIDUAL THAN THOSE PREVAILING FOR SIMILAR WORK
IN THE LOCALITY; (C) IF AS A CONDITION OF BEING EMPLOYED THE INDIVIDUAL
WOULD BE REQUIRED TO JOIN A COMPANY UNION OR TO RESIGN FROM OR REFRAIN
FROM JOINING ANY BONA FIDE LABOR ORGANIZATION; 

(6)  ALL THE RIGHTS, PRIVILEGES, OR IMMUNITIES CONFERRED BY SUCH LAW
OR BY ACTS DONE PURSUANT THERETO SHALL EXIST SUBJECT TO THE POWER OF
THE LEGISLATURE TO AMEND OR REPEAL SUCH LAW AT ANY TIME. 

THE BOARD SHALL, UPON APPROVING SUCH LAW, NOTIFY THE GOVERNOR OF THE
STATE OF ITS APPROVAL. 

(B)  ON DECEMBER 31 IN EACH TAXABLE YEAR THE BOARD SHALL CERTIFY TO
THE SECRETARY OF THE TREASURY EACH STATE WHOSE LAW IT HAS PREVIOUSLY
APPROVED, EXCEPT THAT IT SHALL NOT CERTIFY ANY STATE WHICH, AFTER
REASONABLE NOTICE AND OPPORTUNITY FOR HEARING TO THE STATE AGENCY, THE
BOARD FINDS HAS CHANGED ITS LAW SO THAT IT NO LONGER CONTAINS THE
PROVISIONS SPECIFIED IN SUBSECTION (A) OR HAS WITH RESPECT TO SUCH
TAXABLE YEAR FAILED TO COMPLY SUBSTANTIALLY WITH ANY SUCH PROVISION. 

(C)  IF, AT ANY TIME DURING THE TAXABLE YEAR, THE BOARD HAS REASON TO
BELIEVE THAT A STATE WHOSE LAW IT HAS PREVIOUSLY APPROVED, MAY NOT BE
CERTIFIED UNDER SUBSECTION (B), IT SHALL PROMPTLY SO NOTIFY THE
GOVERNOR OF SUCH STATE. 

FN2  SEC. 904.  (A)  THERE IS HEREBY ESTABLISHED IN THE TREASURY OF
THE UNITED STATES A TRUST FUND TO BE KNOWN AS THE "UNEMPLOYMENT TRUST
FUND," HEREINAFTER IN THIS TITLE CALLED THE "FUND."  THE SECRETARY OF
THE TREASURY IS AUTHORIZED AND DIRECTED TO RECEIVE AND HOLD IN THE FUND
ALL MONEYS DEPOSITED THEREIN BY A STATE AGENCY FROM A STATE
UNEMPLOYMENT FUND.  SUCH DEPOSIT MAY BE MADE DIRECTLY WITH THE
SECRETARY OF THE TREASURY OR WITH ANY FEDERAL RESERVE BANK OR MEMBER
BANK OF THE FEDERAL RESERVE SYSTEM DESIGNATED BY HIM FOR SUCH PURPOSE. 

(B)  IT SHALL BE THE DUTY OF THE SECRETARY OF THE TREASURY TO INVEST
SUCH PORTION OF THE FUND AS IS NOT, IN HIS JUDGMENT, REQUIRED TO MEET
CURRENT WITHDRAWALS.  SUCH INVESTMENT MAY BE MADE ONLY IN INTEREST
BEARING OBLIGATIONS OF THE UNITED STATES OR IN OBLIGATIONS GUARANTEED
AS TO BOTH PRINCIPAL AND INTEREST BY THE UNITED STATES.  FOR SUCH
PURPOSE SUCH OBLIGATIONS MAY BE ACQUIRED (1) ON ORIGINAL ISSUE AT PAR,
OR (2) BY PURCHASE OF OUTSTANDING OBLIGATIONS AT THE MARKET PRICE.  THE
PURPOSES FOR WHICH OBLIGATIONS OF THE UNITED STATES MAY BE ISSUED UNDER
THE SECOND LIBERTY BOND ACT, AS AMENDED, ARE HEREBY EXTENDED TO
AUTHORIZE THE ISSUANCE AT PAR OF SPECIAL OBLIGATIONS EXCLUSIVELY TO THE
FUND.  SUCH SPECIAL OBLIGATIONS SHALL BEAR INTEREST AT A RATE EQUAL TO
THE AVERAGE RATE OF INTEREST, COMPUTED AS OF THE END OF THE CALENDAR
MONTH NEXT PRECEDING THE DATE OF SUCH ISSUE, BORNE BY ALL INTEREST
BEARING OBLIGATIONS OF THE UNITED STATES THEN FORMING PART OF THE
PUBLIC DEBT; EXCEPT THAT WHERE SUCH AVERAGE RATE IS NOT A MULTIPLE OF
ONE-EIGHTH OF 1 PER CENTUM, THE RATE OF INTEREST OF SUCH SPECIAL
OBLIGATIONS SHALL BE THE MULTIPLE OF ONE-EIGHTH OF 1 PER CENTUM NEXT
LOWER THAN SUCH AVERAGE RATE.  OBLIGATIONS OTHER THAN SUCH SPECIAL
OBLIGATIONS MAY BE ACQUIRED FOR THE FUND ONLY ON SUCH TERMS AS TO
PROVIDE AN INVESTMENT YIELD NOT LESS THAN THE YIELD WHICH WOULD BE
REQUIRED IN THE CASE OF SPECIAL OBLIGATIONS IF ISSUED TO THE FUND UPON
THE DATE OF SUCH ACQUISITION. 

(C)  ANY OBLIGATIONS ACQUIRED BY THE FUND (EXCEPT SPECIAL OBLIGATIONS
ISSUED EXCLUSIVELY TO THE FUND) MAY BE SOLD AT THE MARKET PRICE, AND
SUCH SPECIAL OBLIGATIONS MAY BE REDEEMED AT PAR PLUS ACCRUED INTEREST. 

(D)  THE INTEREST ON, AND THE PROCEEDS FROM THE SALE OR REDEMPTION
OF, ANY OBLIGATIONS HELD IN THE FUND SHALL BE CREDITED TO AND FORM A
PART OF THE FUND. 

(E)  THE FUND SHALL BE INVESTED AS A SINGLE FUND, BUT THE SECRETARY
OF THE TREASURY SHALL MAINTAIN A SEPARATE BOOK ACCOUNT FOR EACH STATE
AGENCY AND SHALL CREDIT QUARTERLY ON MARCH 31, JUNE 30, SEPTEMBER 30,
AND DECEMBER 31, OF EACH YEAR, TO EACH ACCOUNT, ON THE BASIS OF THE
AVERAGE DAILY BALANCE OF SUCH ACCOUNT, A PROPORTIONATE PART OF THE
EARNINGS OF THE FUND FOR THE QUARTER ENDING ON SUCH DATE. 

(F)  THE SECRETARY OF THE TREASURY IS AUTHORIZED AND DIRECTED TO PAY
OUT OF THE FUND TO ANY STATE AGENCY SUCH AMOUNT AS IT MAY DULY
REQUISITION, NOT EXCEEDING THE AMOUNT STANDING TO THE ACCOUNT OF SUCH
STATE AGENCY AT THE TIME OF SUCH PAYMENT. 

FN3  THE LIST OF SERVICES IS COMPREHENSIVE.  IT INCLUDED:  "MAITRE
D'HOTEL, HOUSE-STEWARD, MASTER OF THE HORSE, GROOM OF THE CHAMBER,
VALET DE CHAMBRE, BUTLER, UNDER-BUTLER, CLERK OF THE KITCHEN,
CONFECTIONER, COOK, HOUSE-PORTER, FOOTMAN, RUNNING-FOOTMAN, COACHMAN,
GROOM, POSTILLION, STABLE-BOY, AND THE RESPECTIVE HELPERS IN THE
STABLES OF SUCH COACHMAN, GROOM, OR POSTILLION, OR IN THE CAPACITY OF
GARDENER (NOT BEING A DAY-LABOURER), PARK-KEEPER, GAMEKEEPER, HUNTSMAN,
WHIPPER-IN  ..." 

FN4 THE STATUTE, AMENDED FROM TIME TO TIME, BUT WITH ITS BASIC
STRUCTURE UNAFFECTED, IS ON THE STATUTE BOOKS TODAY.  ACT OF 1803, 43
GEORGE III, C. 161; ACT OF 1812, 52 GEORGE III, C. 93; ACT OF 1853, 16
& 17 VICT., C. 90; ACT OF 1869, 32 & 33 VICT., C. 14.  24 HALSBURY'S
LAWS OF ENGLAND, 1ST ED., PP. 692 ET SEQ. 

FN5  SEE ALSO THE FOLLOWING LAWS IMPOSING OCCUPATION TAXES:  12
HENING'S STATUTES OF VIRGINIA, P. 285, ACT OF 1786; CHANDLER, THE
COLONIAL RECORDS OF GEORGIA, VOL. 19, PART 2, P. 88, ACT OF 1778; 1
POTTER, TAYLOR AND YANCEY, NORTH CAROLINA REVISED LAWS, P. 501, ACT OF
1784. 

FN6  THE CASES ARE BROUGHT TOGETHER BY PROFESSOR JOHN MACARTHUR
MAGUIRE IN AN ESSAY, "TAXING THE EXERCISE OF NATURAL RIGHTS" (HARVARD
LEGAL ESSAYS, 1934, PP. 273, 322). 

THE MASSACHUSETTS DECISIONS MUST BE READ IN THE LIGHT OF THE
PARTICULAR DEFINITIONS AND RESTRICTIONS OF THE MASSACHUSETTS
CONSTITUTION.  OPINION OF THE JUSTICES, 282 MASS. 619, 622; 186 N.E.
490; 266 MASS. 590, 593; 165 N.E. 904.  AND SEE HOWES BROTHERS CO. V.
MASSACHUSETTS UNEMPLOYMENT COMPENSATION COMM'N, SUPRA, PP. 730, 731. 

FN7  ALABAMA GENERAL ACTS, 1935, C. 194, ART. XIII (FLAT LICENSE TAX
ON OCCUPATIONS); ARIZONA REVISED CODE, SUPPLEMENT (1936) SEC. 3138A ET
SEQ. (GENERAL GROSS RECEIPTS TAX); CONNECTICUT GENERAL STATUTES,
SUPPLEMENT (1935) SECS. 457C, 458C (GROSS RECEIPTS TAX ON
UNINCORPORATED BUSINESSES); REVISED CODE OF DELAWARE (1935) SECS. 192
197(FLAT LICENSE TAX ON OCCUPATIONS); COMPILED LAWS OF FLORIDA,
PERMANENT SUPPLEMENT (1936) VOL. I, SEC. 1279(FLAT LICENSE TAX ON
OCCUPATIONS); GEORGIA LAWS, 1935, P. 11(FLAT LICENSE TAX ON
OCCUPATIONS); INDIANA STATUTES ANN. (1933) SEC. 64-2601 ET SEQ.
(GENERAL GROSS RECEIPTS TAX); LOUISIANA LAWS, 3RD EXTRA SESSION, 1934,
ACT NO. 15, 1ST EXTRA SESSION, 1935, ACTS NOS. 5, 6(GENERAL GROSS
RECEIPTS TAX); MISSISSIPPI LAWS, 1934, C. 119(GENERAL GROSS RECEIPTS
TAX); NEW MEXICO LAWS, 1935, C. 73(GENERAL GROSS RECEIPTS TAX); SOUTH
DAKOTA LAWS, 1933, C. 184(GENERAL GROSS RECEIPTS TAX, EXPIRED JUNE 30,
1935); WASHINGTON LAWS, 1935, C. 180, TITLE II (GENERAL GROSS RECEIPTS
TAX); WEST VIRGINIA CODE, SUPPLEMENT (1935) SEC. 960(GENERAL GROSS
RECEIPTS TAX). 

FN8  THE TOTAL ESTIMATED RECEIPTS WITHOUT TAKING INTO ACCOUNT THE 90
PER CENT DEDUCTION, RANGE FROM $225,000,000 IN THE FIRST YEAR TO OVER
$900,000,000 SEVEN YEARS LATER.  EVEN IF THE MAXIMUM CREDITS ARE
AVAILABLE TO TAXPAYERS IN ALL STATES, THE MAXIMUM ESTIMATED RECEIPTS
FROM TITLE IX WILL RANGE BETWEEN $22,000,000, AT ONE EXTREME, TC
$90,000,000 AT THE OTHER.  IF SOME OF THE STATES HOLD OUT IN THEIR
UNWILLINGNESS TO PASS STATUTES OF THEIR OWN, THE RECEIPTS WILL BE STILL
LARGER. 

FN9  THE ATTITUDE OF MASSACHUSETTS IS SIGNIFICANT.  HER ACT BECAME A
LAW AUGUST 12, 1935, TWO DAYS BEFORE THE FEDERAL ACT.  EVEN SO, SHE
PRESCRIBED THAT ITS PROVISIONS SHOULD NOT BECOME OPERATIVE UNLESS THE
FEDERAL BILL BECAME A LAW, OR UNLESS ELEVEN OF THE FOLLOWING STATES
(ALABAMA, CONNECTICUT, DELAWARE, GEORGIA, ILLINOIS, INDIANA, IOWA,
MAINE, MARYLAND, MICHIGAN, MINNESOTA, MISSOURI, NEW HAMPSHIRE, NEW
JERSEY, NEW YORK, NORTH CAROLINA, OHIO, RHODE ISLAND, SOUTH CAROLINA,
TENNESSEE, VERMONT) SHOULD IMPOSE ON THEIR EMPLOYERS BURDENS
SUBSTANTIALLY EQUIVALENT.  ACTS OF 1935, C. 479, P. 655.  HER FEAR OF
COMPETITION IS THUS FORCEFULLY ATTESTED.  SEE ALSO CALIFORNIA LAWS,
1935, C. 352, ART. I, SEC. 2; IDAHO LAWS, 1936(THIRD EXTRA SESSION) C.
12, SEC. 26; MISSISSIPPI LAWS, 1936, C. 176, SEC. 2-A. 

FN10  PERKINS, STATE ACTION UNDER THE FEDERAL ESTATE TAX CREDIT
CLAUSE, 13 NORTH CAROLINA L. REV. 271, 280. 

FN11  SEE NOTE 1, SUPRA. 

FN12  SEE NOTE 2, SUPRA. 

FN13  "THIS LAST PROVISION WILL NOT ONLY AFFORD MAXIMUM SAFETY FOR
THESE FUNDS BUT IS VERY ESSENTIAL TO INSURE THAT THEY WILL OPERATE TO
PROMOTE THE STABILITY OF BUSINESS RATHER THAN THE REVERSE. 
UNEMPLOYMENT RESERVE FUNDS HAVE THE PECULIARITY THAT THE DEMANDS UPON
THEM FLUCTUATE CONSIDERABLY, BEING HEAVIEST WHEN BUSINESS SLACKENS. 
IF, IN SUCH TIMES, THE SECURITIES IN WHICH THESE FUNDS ARE INVESTED ARE
THROWN UPON THE MARKET FOR LIQUIDATION, THE NET EFFECT IS LIKELY TO BE
INCREASED DEFLATION.  SUCH A RESULT IS AVOIDED IN THIS BILL THROUGH THE
PROVISION THAT ALL RESERVE FUNDS ARE TO BE HELD BY THE UNITED STATES
TREASURY, TO BE INVESTED AND LIQUIDATED BY THE SECRETARY OF THE
TREASURY IN A MANNER CALCULATED TO PROMOTE BUSINESS STABILITY.  WHEN
BUSINESS CONDITIONS ARE SUCH THAT INVESTMENT IN SECURITIES PURCHASED ON
THE OPEN MARKET IS UNWISE, THE SECRETARY OF THE TREASURY MAY ISSUE
SPECIAL NONNEGOTIABLE OBLIGATIONS EXCLUSIVELY TO THE UNEMPLOYMENT TRUST
FUND.  WHEN A REVERSE SITUATION EXISTS AND HEAVY DRAINS ARE MADE UPON
THE FUND FOR PAYMENT OF UNEMPLOYMENT BENEFITS, THE TREASURY DOES NOT
HAVE TO DISPOSE OF THE SECURITIES BELONGING TO THE FUND IN OPEN MARKET
BUT MAY ASSUME THEM ITSELF.  WITH SUCH A METHOD OF HANDLING THE RESERVE
FUNDS, IT IS BELIEVED THAT THIS BILL WILL SOLVE THE PROBLEM OFTEN
RAISED IN DISCUSSIONS OF UNEMPLOYMENT COMPENSATION, REGARDING THE
POSSIBILITY OF TRANSFERRING PURCHASING POWER FROM BOOM PERIODS TO
DEPRESSION PERIODS.  IT WILL IN FACT OPERATE TO SUSTAIN PURCHASING
POWER AT THE ONSET OF A DEPRESSION WITHOUT HAVING ANY COUNTERACTING
DEFLATIONARY TENDENCIES."  HOUSE REPORT, NO. 615, 74TH CONGRESS, 1ST
SESSION, P. 9. 

FN14  CF. 12 STAT. 503; 26 STAT. 417. 

SEPARATE OPINION OF MR. JUSTICE MCREYNOLDS. 

THAT PORTION OF THE SOCIAL SECURITY LEGISLATION HERE UNDER
CONSIDERATION, I THINK, EXCEEDS THE POWER GRANTED TO CONGRESS.  IT
UNDULY INTERFERES WITH THE ORDERLY GOVERNMENT OF THE STATE BY HER OWN
PEOPLE AND OTHERWISE OFFENDS THE FEDERAL CONSTITUTION. 

IN TEXAS V. WHITE, 7 WALL.  700, 725(1869), A CAUSE OF MOMENTOUS
IMPORTANCE, THIS COURT, THROUGH CHIEF JUSTICE CHASE, DECLARED - 

"BUT THE PERPETUITY AND INDISSOLUBILITY OF THE UNION, BY NO MEANS
IMPLIES THE LOSS OF DISTINCT AND INDIVIDUAL EXISTENCE, OR OF THE RIGHT
OF SELF-GOVERNMENT, BY THE STATES.  UNDER THE ARTICLES OF CONFEDERATION
EACH STATE RETAINED ITS SOVEREIGNTY, FREEDOM, AND INDEPENDENCE, AND
EVERY POWER, JURISDICTION, AND RIGHT NOT EXPRESSLY DELEGATED TO THE
UNITED STATES.  UNDER THE CONSTITUTION, THOUGH THE POWERS OF THE STATES
WERE MUCH RESTRICTED, STILL, ALL POWERS NOT DELEGATED TO THE UNITED
STATES, NOR PROHIBITED TO THE STATES, ARE RESERVED TO THE STATES
RESPECTIVELY, OR TO THE PEOPLE.  AND WE HAVE ALREADY HAD OCCASION TO
REMARK AT THIS TERM, THAT 'THE PEOPLE OF EACH STATE COMPOSE A STATE,
HAVING ITS OWN GOVERNMENT, AND ENDOWED WITH ALL THE FUNCTIONS ESSENTIAL
TO SEPARATE AND INDEPENDENT EXISTENCE,' AND THAT 'WITHOUT THE STATES IN
UNION, THERE COULD BE NO SUCH POLITICAL BODY AS THE UNITED STATES.' 
(LANE COUNTY V. OREGON, 7 WALL.  71, 76.)  NOT ONLY, THEREFORE, CAN
THERE BE NO LOSS OF SEPARATE AND INDEPENDENT AUTONOMY TO THE STATES,
THROUGH THEIR UNION UNDER THE CONSTITUTION, BUT IT MAY BE NOT
UNREASONABLY SAID THAT THE PRESERVATION OF THE STATES, AND THE
MAINTENANCE OF THEIR GOVERNMENTS, ARE AS MUCH WITHIN THE DESIGN AND
CARE OF THE CONSTITUTION AS THE PRESERVATION OF THE UNION AND THE
MAINTENANCE OF THE NATIONAL GOVERNMENT.  THE CONSTITUTION, IN ALL ITS
PROVISIONS, LOOKS TO AN INDESTRUCTIBLE UNION, COMPOSED OF
INDESTRUCTIBLE STATES."    THE DOCTRINE THUS ANNOUNCED AND OFTEN
REPEATED, I HAD SUPPOSED WAS FIRMLY ESTABLISHED.  APPARENTLY THE STATES
REMAINED REALLY FREE TO EXERCISE GOVERNMENTAL POWERS, NOT DELEGATED OR
PROHIBITED, WITHOUT INTERFERENCE BY THE FEDERAL GOVERNMENT THROUGH
THREATS OF PUNITIVE MEASURES OR OFFERS OF SEDUCTIVE FAVORS. 
UNFORTUNATELY, THE DECISION JUST ANNOUNCED OPENS THE WAY FOR PRACTICAL
ANNIHILATION OF THIS THEORY; AND NO CLOUD OF WORDS OR OSTENTATIOUS
PARADE OF IRRELEVANT STATISTICS SHOULD BE PERMITTED TO OBSCURE THAT
FACT.    THE INVALIDITY, ALSO THE DESTRUCTIVE TENDENCY, OF LEGISLATION
LIKE THE ACT BEFORE US WERE FORCEFULLY POINTED OUT BY PRESIDENT
FRANKLIN PIERCE IN A VETO MESSAGE SENT TO THE SENATE MAY 3, 1854.  FN1
HE WAS A SCHOLARLY LAWYER OF DISTINCTION AND ENJOYED THE ADVICE AND
COUNSEL OF A RARELY ABLE ATTORNEY GENERAL - CALEB CUSHING OF
MASSACHUSETTS.  THIS MESSAGE CONSIDERS WITH UNUSUAL LUCIDITY POINTS
HERE SPECIALLY IMPORTANT.  I VENTURE TO SET OUT PERTINENT PORTIONS OF
IT WHICH MUST APPEAL TO ALL WHO CONTINUE TO RESPECT BOTH THE LETTER AND
SPIRIT OF OUR GREAT CHARTER. 

"TO THE SENATE OF THE UNITED STATES: 

"THE BILL ENTITLED 'AN ACT MAKING A GRANT OF PUBLIC LANDS TO THE
SEVERAL STATES FOR THE BENEFIT OF INDIGENT INSANE PERSONS,' WHICH WAS
PRESENTED TO ME ON THE 27TH ULTIMO, HAS BEEN MATURELY CONSIDERED, AND
IS RETURNED TO THE SENATE, THE HOUSE IN WHICH IT ORIGINATED, WITH A
STATEMENT OF THE OBJECTIONS WHICH HAVE REQUIRED ME TO WITHHOLD FROM IT
MY APPROVAL. 

     .    .         .         .         . 

"IF IN PRESENTING MY OBJECTIONS TO THIS BILL I SHOULD SAY MORE THAN
STRICTLY BELONGS TO THE MEASURE OR IS REQUIRED FOR THE DISCHARGE OF MY
OFFICIAL OBLIGATION, LET IT BE ATTRIBUTED TO A SINCERE DESIRE TO
JUSTIFY MY ACT BEFORE THOSE WHOSE GOOD OPINION I SO HIGHLY VALUE AND TO
THAT EARNESTNESS WHICH SPRINGS FROM MY DELIBERATE CONVICTION THAT A
STRICT ADHERENCE TO THE TERMS AND PURPOSES OF THE FEDERAL COMPACT
OFFERS THE BEST, IF NOT THE ONLY, SECURITY FOR THE PRESERVATION OF OUR
BLESSED INHERITANCE OF REPRESENTATIVE LIBERTY. 

"THE BILL PROVIDES IN SUBSTANCE: 

"FIRST.  THAT 10,000,000 ACRES OF LAND BE GRANTED TO THE SEVERAL
STATES, TO BE APPORTIONED AMONG THEM IN THE COMPOUND RATIO OF THE
GEOGRAPHICAL AREA AND REPRESENTATION OF SAID STATES IN THE HOUSE OF
REPRESENTATIVES. 

"SECOND.  THAT WHEREVER THERE ARE PUBLIC LANDS IN A STATE SUBJECT TO
SALE AT THE REGULAR PRICE OF PRIVATE ENTRY, THE PROPORTION OF SAID
10,000,000 ACRES FALLING TO SUCH STATE SHALL BE SELECTED FROM SUCH
LANDS WITHIN IT, AND THAT TO THE STATES IN WHICH THERE ARE NO SUCH
PUBLIC LANDS LAND SCRIP SHALL BE ISSUED TO THE AMOUNT OF THEIR
DISTRIBUTIVE SHARES, RESPECTIVELY, SAID SCRIP NOT TO BE ENTERED BY SAID
STATES, BUT TO BE SOLD BY THEM AND SUBJECT TO ENTRY BY THEIR ASSIGNEES:
PROVIDED, THAT NONE OF IT SHALL BE SOLD AT LESS THAN $1 PER ACRE, UNDER
PENALTY OF FORFEITURE OF THE SAME TO THE UNITED STATES. 

"THIRD.  THAT THE EXPENSES OF THE MANAGEMENT AND SUPERINTENDENCE OF
SAID LANDS AND OF THE MONEYS RECEIVED THEREFROM SHALL BE PAID BY THE
STATES TO WHICH THEY MAY BELONG OUT OF THE TREASURY OF SAID STATES. 

"FOURTH.  THAT THE GROSS PROCEEDS OF THE SALES OF SUCH LANDS OR LAND
SCRIP SO GRANTED SHALL BE INVESTED BY THE SEVERAL STATES IN SAFE
STOCKS, TO CONSTITUTE A PERPETUAL FUND, THE PRINCIPAL OF WHICH SHALL
REMAIN FOREVER UNDIMINISHED, AND THE INTEREST TO BE APPROPRIATED TO THE
MAINTENANCE OF THE INDIGENT INSANE WITHIN THE SEVERAL STATES. 

"FIFTH.  THAT ANNUAL RETURNS OF LANDS OR SCRIP SOLD SHALL BE MADE BY
THE STATES TO THE SECRETARY OF THE INTERIOR, AND THE WHOLE GRANT BE
SUBJECT TO CERTAIN CONDITIONS AND LIMITATIONS PRESCRIBED IN THE BILL,
TO BE ASSENTED TO BY LEGISLATIVE ACTS OF SAID STATES. 

"THIS BILL THEREFORE PROPOSES THAT THE FEDERAL GOVERNMENT SHALL MAKE
PROVISION TO THE AMOUNT OF THE VALUE OF 10,000,000 ACRES OF LAND FOR AN
ELEEMOSYNARY OBJECT WITHIN THE SEVERAL STATES, TO BE ADMINISTERED BY
THE POLITICAL AUTHORITY OF THE SAME; AND IT PRESENTS AT THE THRESHOLD
THE QUESTION WHETHER ANY SUCH ACT ON THE PART OF THE FEDERAL GOVERNMENT
IS WARRANTED AND SANCTIONED BY THE CONSTITUTION, THE PROVISIONS AND
PRINCIPLES OF WHICH ARE TO BE PROTECTED AND SUSTAINED AS A FIRST AND
PARAMOUNT DUTY. 

"IT CAN NOT BE QUESTIONED THAT IF CONGRESS HAS POWER TO MAKE
PROVISION FOR THE INDIGENT INSANE WITHOUT THE LIMITS OF THIS DISTRICT
IT HAS THE SAME POWER TO PROVIDE FOR THE INDIGENT WHO ARE NOT INSANE,
AND THUS TO TRANSFER TO THE FEDERAL GOVERNMENT THE CHARGE OF ALL THE
POOR IN ALL THE STATES.  IT HAS THE SAME POWER TO PROVIDE HOSPITALS AND
OTHER LOCAL ESTABLISHMENTS FOR THE CARE AND CURE OF EVERY SPECIES OF
HUMAN INFIRMITY, AND THUS TO ASSUME ALL THAT DUTY OF EITHER PUBLIC
PHILANTHROPY OR PUBLIC NECESSITY TO THE DEPENDENT, THE ORPHAN, THE
SICK, OR THE NEEDY WHICH IS NOW DISCHARGED BY THE STATES THEMSELVES OR
BY CORPORATE INSTITUTIONS OR PRIVATE ENDOWMENTS EXISTING UNDER THE
LEGISLATION OF THE STATES.  THE WHOLE FIELD OF PUBLIC BENEFICENCE IS
THROWN OPEN TO THE CARE AND CULTURE OF THE FEDERAL GOVERNMENT. 
GENEROUS IMPULSES NO LONGER ENCOUNTER THE LIMITATIONS AND CONTROL OF
OUR IMPERIOUS FUNDAMENTAL LAW; FOR HOWEVER WORTHY MAY BE THE PRESENT
OBJECT IN ITSELF, IT IS ONLY ONE OF A CLASS.  IT IS NOT EXCLUSIVELY
WORTHY OF BENEVOLENT REGARD.  WHATEVER CONSIDERATIONS DICTATE SYMPATHY
FOR THIS PARTICULAR OBJECT APPLY IN LIKE MANNER, IF NOT IN THE SAME
DEGREE, TO IDIOCY, TO PHYSICAL DISEASE, TO EXTREME DESTITUTION.  IF
CONGRESS MAY AND OUGHT TO PROVIDE FOR ANY ONE OF THESE OBJECTS, IT MAY
AND OUGHT TO PROVIDE FOR THEM ALL.  AND IF IT BE DONE IN THIS CASE,
WHAT ANSWER SHALL BE GIVEN WHEN CONGRESS SHALL BE CALLED UPON, AS IT
DOUBTLESS WILL BE, TO PURSUE A SIMILAR COURSE OF LEGISLATION IN THE
OTHERS?  IT WILL OBVIOUSLY BE VAIN TO REPLY THAT THE OBJECT IS WORTHY,
BUT THAT THE APPLICATION HAS TAKEN A WRONG DIRECTION.  THE POWER WILL
HAVE BEEN DELIBERATELY ASSUMED, THE GENERAL OBLIGATION WILL BY THIS ACT
HAVE BEEN ACKNOWLEDGED, AND THE QUESTION OF MEANS AND EXPEDIENCY WILL
ALONE BE LEFT FOR CONSIDERATION.  THE DECISION UPON THE PRINCIPLE IN
ANY ONE CASE DETERMINES IT FOR THE WHOLE CLASS.  THE QUESTION
PRESENTED, THEREFORE, CLEARLY IS UPON THE CONSTITUTIONALITY AND
PROPRIETY OF THE FEDERAL GOVERNMENT ASSUMING TO ENTER INTO A NOVEL AND
VAST FIELD OF LEGISLATION, NAMELY, THAT OF PROVIDING FOR THE CARE AND
SUPPORT OF ALL THOSE AMONG THE PEOPLE OF THE UNITED STATES WHO BY ANY
FORM OF CALAMITY BECOME FIT OBJECTS OF PUBLIC PHILANTHROPY. 

"I READILY AND, I TRUST, FEELINGLY ACKNOWLEDGE THE DUTY INCUMBENT ON
US ALL AS MEN AND CITIZENS, AND AS AMONG THE HIGHEST AND HOLIEST OF OUR
DUTIES, TO PROVIDE FOR THOSE WHO, IN THE MYSTERIOUS ORDER OF
PROVIDENCE, ARE SUBJECT TO WANT AND TO DISEASE OF BODY OR MIND; BUT I
CAN NOT FIND ANY AUTHORITY IN THE CONSTITUTION FOR MAKING THE FEDERAL
GOVERNMENT THE GREAT ALMONER OF PUBLIC CHARITY THROUGHOUT THE UNITED
STATES.  TO DO SO WOULD, IN MY JUDGMENT, BE CONTRARY TO THE LETTER AND
SPIRIT OF THE CONSTITUTION AND SUBVERSIVE OF THE WHOLE THEORY UPON
WHICH THE UNION OF THESE STATES IS FOUNDED.  AND IF IT WERE ADMISSIBLE
TO CONTEMPLATE THE EXERCISE OF THIS POWER FOR ANY OBJECT WHATEVER, I
CAN NOT AVOID THE BELIEF THAT IT WOULD IN THE END BE PREJUDICIAL RATHER
THAN BENEFICIAL IN THE NOBLE OFFICES OF CHARITY TO HAVE THE CHARGE OF
THEM TRANSFERRED FROM THE STATES TO THE FEDERAL GOVERNMENT.  ARE WE NOT
TOO PRONE TO FORGET THAT THE FEDERAL UNION IS THE CREATURE OF THE
STATES, NOT THEY OF THE FEDERAL UNION?  WE WERE THE INHABITANTS OF
COLONIES DISTINCT IN LOCAL GOVERNMENT ONE FROM THE OTHER BEFORE THE
REVOLUTION.  BY THAT REVOLUTION THE COLONIES EACH BECAME AN INDEPENDENT
STATE.  THEY ACHIEVED THAT INDEPENDENCE AND SECURED ITS RECOGNITION BY
THE AGENCY OF A CONSULTING BODY, WHICH, FROM BEING AN ASSEMBLY OF THE
MINISTERS OF DISTINCT SOVEREIGNTIES INSTRUCTED TO AGREE TO NO FORM OF
GOVERNMENT WHICH DID NOT LEAVE THE DOMESTIC CONCERNS OF EACH STATE TO
ITSELF, WAS APPROPRIATELY DENOMINATED A CONGRESS.  WHEN, HAVING TRIED
THE EXPERIMENT OF THE CONFEDERATION, THEY RESOLVED TO CHANGE THAT FOR
THE PRESENT FEDERAL UNION, AND THUS TO CONFER ON THE FEDERAL GOVERNMENT
MORE AMPLE AUTHORITY, THEY SCRUPULOUSLY MEASURED SUCH OF THE FUNCTIONS
OF THEIR CHERISHED SOVEREIGNTY AS THEY CHOSE TO DELEGATE TO THE GENERAL
GOVERNMENT.  WITH THIS AIM AND TO THIS END THE FATHERS OF THE REPUBLIC
FRAMED THE CONSTITUTION, IN AND BY WHICH THE INDEPENDENT AND SOVEREIGN
STATES UNITED THEMSELVES FOR CERTAIN SPECIFIED OBJECTS AND PURPOSES,
AND FOR THOSE ONLY, LEAVING ALL POWERS NOT THEREIN SET FORTH AS
CONFERRED ON ONE OR ANOTHER OF THE THREE GREAT DEPARTMENTS - THE
LEGISLATIVE, THE EXECUTIVE, AND THE JUDICIAL - INDUBITABLY WITH THE
STATES.  AND WHEN THE PEOPLE OF THE SEVERAL STATES HAD IN THEIR STATE
CONVENTIONS, AND THUS ALONE, GIVEN EFFECT AND FORCE TO THE
CONSTITUTION, NOT CONTENT THAT ANY DOUBT SHOULD IN FUTURE ARISE AS TO
THE SCOPE AND CHARACTER OF THIS ACT, THEY INGRAFTED THEREON THE
EXPLICIT DECLARATION THAT 'THE POWERS NOT DELEGATED TO THE UNITED
STATES BY THE CONSTITUTION NOR PROHIBITED BY IT TO THE STATES ARE
RESERVED TO THE STATES RESPECTIVELY OR TO THE PEOPLE.' 

"CAN IT BE CONTROVERTED THAT THE GREAT MASS OF THE BUSINESS OF
GOVERNMENT - THAT INVOLVED IN THE SOCIAL RELATIONS, THE INTERNAL
ARRANGEMENTS OF THE BODY POLITIC, THE MENTAL AND MORAL CULTURE OF MEN,
THE DEVELOPMENT OF LOCAL RESOURCES OF WEALTH, THE PUNISHMENT OF CRIMES
IN GENERAL, THE PRESERVATION OF ORDER, THE RELIEF OF THE NEEDY OR
OTHERWISE UNFORTUNATE MEMBERS OF SOCIETY - DID IN PRACTICE REMAIN WITH
THE STATES; THAT NONE OF THESE OBJECTS OF LOCAL CONCERN ARE BY THE
CONSTITUTION EXPRESSLY OR IMPLIEDLY PROHIBITED TO THE STATES, AND THAT
NONE OF THEM ARE BY ANY EXPRESS LANGUAGE OF THE CONSTITUTION
TRANSFERRED TO THE UNITED STATES?  CAN IT BE CLAIMED THAT ANY OF THESE
FUNCTIONS OF LOCAL ADMINISTRATION AND LEGISLATION ARE VESTED IN THE
FEDERAL GOVERNMENT BY ANY IMPLICATION?  I HAVE NEVER FOUND ANYTHING IN
THE CONSTITUTION WHICH IS SUSCEPTIBLE OF SUCH A CONSTRUCTION.  NO ONE
OF THE ENUMERATED POWERS TOUCHES THE SUBJECT OR HAS EVEN A REMOTE
ANALOGY TO IT.  THE POWERS CONFERRED UPON THE UNITED STATES HAVE
REFERENCE TO FEDERAL RELATIONS, OR TO THE MEANS OF ACCOMPLISHING OR
EXECUTING THINGS OF FEDERAL RELATION.  SO ALSO OF THE SAME CHARACTER
ARE THE POWERS TAKEN AWAY FROM THE STATES BY ENUMERATION.  IN EITHER
CASE THE POWERS GRANTED AND THE POWERS RESTRICTED WERE SO GRANTED OR SO
RESTRICTED ONLY WHERE IT WAS REQUISITE FOR THE MAINTENANCE OF PEACE AND
HARMONY BETWEEN THE STATES OR FOR THE PURPOSE OF PROTECTING THEIR
COMMON INTERESTS AND DEFENDING THEIR COMMON SOVEREIGNTY AGAINST
AGGRESSION FROM ABROAD OR INSURRECTION AT HOME. 

"I SHALL NOT DISCUSS AT LENGTH THE QUESTION OF POWER SOMETIMES
CLAIMED FOR THE GENERAL GOVERNMENT UNDER THE CLAUSE OF THE EIGHTH
COLLECT TAXES, DUTIES, IMPOSTS, AND EXCISES, TO PAY DEBTS AND PROVIDE
FOR THE COMMON DEFENSE AND GENERAL WELFARE OF THE UNITED STATES,'
BECAUSE IF IT HAS NOT ALREADY BEEN SETTLED UPON SOUND REASON AND
AUTHORITY IT NEVER WILL BE.  I TAKE THE RECEIVED AND JUST CONSTRUCTION
OF THAT ARTICLE, AS IF WRITTEN TO LAY AND COLLECT TAXES, DUTIES,
IMPOSTS, AND EXCISES IN ORDER TO PAY THE DEBTS AND IN ORDER TO PROVIDE
FOR THE COMMON DEFENSE AND GENERAL WELFARE.  IT IS NOT A SUBSTANTIVE
GENERAL POWER TO PROVIDE FOR THE WELFARE OF THE UNITED STATES, BUT IS A
LIMITATION ON THE GRANT OF POWER TO RAISE MONEY BY TAXES, DUTIES, AND
IMPOSTS.  IF IT WERE OTHERWISE, ALL THE REST OF THE CONSTITUTION,
CONSISTING OF CAREFULLY ENUMERATED AND CAUTIOUSLY GUARDED GRANTS OF
SPECIFIC POWERS, WOULD HAVE BEEN USELESS, IF NOT DELUSIVE.  IT WOULD BE
IMPOSSIBLE IN THAT VIEW TO ESCAPE FROM THE CONCLUSION THAT THESE WERE
INSERTED ONLY TO MISLEAD FOR THE PRESENT, AND, INSTEAD OF ENLIGHTENING
AND DEFINING THE PATHWAY OF THE FUTURE, TO INVOLVE ITS ACTION IN THE
MAZES OF DOUBTFUL CONSTRUCTION.  SUCH A CONCLUSION THE CHARACTER OF THE
MEN WHO FRAMED THAT SACRED INSTRUMENT WILL NEVER PERMIT US TO FORM. 
INDEED, TO SUPPOSE IT SUSCEPTIBLE OF ANY OTHER CONSTRUCTION WOULD BE TO
CONSIGN ALL THE RIGHTS OF THE STATES AND OF THE PEOPLE OF THE STATES TO
THE MERE DISCRETION OF CONGRESS, AND THUS TO CLOTHE THE FEDERAL
GOVERNMENT WITH AUTHORITY TO CONTROL THE SOVEREIGN STATES, BY WHICH
THEY WOULD HAVE BEEN DWARFED INTO PROVINCES OR DEPARTMENTS AND ALL
SOVEREIGNTY VESTED IN AN ABSOLUTE CONSOLIDATED CENTRAL POWER, AGAINST
WHICH THE SPIRIT OF LIBERTY HAS SO OFTEN AND IN SO MANY COUNTRIES
STRUGGLED IN VAIN. 

"IN MY JUDGMENT YOU CAN NOT BY TRIBUTES TO HUMANITY MAKE ANY ADEQUATE
COMPENSATION FOR THE WRONG YOU WOULD INFLICT BY REMOVING THE SOURCES OF
POWER AND POLITICAL ACTION FROM THOSE WHO ARE TO BE THEREBY AFFECTED. 
IF THE TIME SHALL EVER ARRIVE WHEN, FOR AN OBJECT APPEALING, HOWEVER
STRONGLY, TO OUR SYMPATHIES, THE DIGNITY OF THE STATES SHALL BOW TO THE
DICTATION OF CONGRESS BY CONFORMING THEIR LEGISLATION THERETO, WHEN THE
POWER AND MAJESTY AND HONOR OF THOSE WHO CREATED SHALL BECOME
SUBORDINATE TO THE THING OF THEIR CREATION, I BUT FEEBLY UTTER MY
APPREHENSIONS WHEN I EXPRESS MY FIRM CONVICTION THAT WE SHALL SEE 'THE
BEGINNING OF THE END.' 

"FORTUNATELY, WE ARE NOT LEFT IN DOUBT AS TO THE PURPOSE OF THE
CONSTITUTION ANY MORE THAN AS TO ITS EXPRESS LANGUAGE, FOR ALTHOUGH THE
HISTORY OF ITS FORMATION, AS RECORDED IN THE MADISON PAPERS, SHOWS THAT
THE FEDERAL GOVERNMENT IN ITS PRESENT FORM EMERGED FROM THE CONFLICT OF
OPPOSING INFLUENCES WHICH HAVE CONTINUED TO DIVIDE STATESMEN FROM THAT
DAY TO THIS, YET THE RULE OF CLEARLY DEFINED POWERS AND OF STRICT
CONSTRUCTION PRESIDED OVER THE ACTUAL CONCLUSION AND SUBSEQUENT
ADOPTION OF THE CONSTITUTION.  PRESIDENT MADISON, IN THE FEDERALIST,
SAYS:    "'THE POWERS DELEGATED BY THE PROPOSED CONSTITUTION ARE FEW
AND DEFINED.  THOSE WHICH ARE TO REMAIN IN THE STATE GOVERNMENTS ARE
NUMEROUS AND INDEFINITE....  ITS (THE GENERAL GOVERNMENT'S)
JURISDICTION EXTENDS TO CERTAIN ENUMERATED OBJECTS ONLY, AND LEAVES TO
THE SEVERAL STATES A RESIDUARY AND INVIOLABLE SOVEREIGNTY OVER ALL
OTHER OBJECTS.' 

"IN THE SAME SPIRIT PRESIDENT JEFFERSON INVOKES 'THE SUPPORT OF THE
STATE GOVERNMENTS IN ALL THEIR RIGHTS AS THE MOST COMPETENT
ADMINISTRATIONS FOR OUR DOMESTIC CONCERNS AND THE SUREST BULWARKS
AGAINST ANTI-REPUBLICAN TENDENCIES;' AND PRESIDENT JACKSON SAID THAT
OUR TRUE STRENGTH AND WISDOM ARE NOT PROMOTED BY INVASIONS OF THE
RIGHTS AND POWERS OF THE SEVERAL STATES, BUT THAT, ON THE CONTRARY,
THEY CONSIST 'NOT IN BINDING THE STATES MORE CLOSELY TO THE CENTER, BUT
IN LEAVING EACH MORE UNOBSTRUCTED IN ITS PROPER ORBIT.' 

"THE FRAMERS OF THE CONSTITUTION, IN REFUSING TO CONFER ON THE
FEDERAL GOVERNMENT ANY JURISDICTION OVER THESE PURELY LOCAL OBJECTS, IN
MY JUDGMENT MANIFESTED A WISE FORECAST AND BROAD COMPREHENSION OF THE
TRUE INTERESTS OF THESE OBJECTS THEMSELVES.  IT IS CLEAR THAT PUBLIC
CHARITIES WITHIN THE STATES CAN BE EFFICIENTLY ADMINISTERED ONLY BY
THEIR AUTHORITY.  THE BILL BEFORE ME CONCEDES THIS, FOR IT DOES NOT
COMMIT THE FUNDS IT PROVIDES TO THE ADMINISTRATION OF ANY OTHER
AUTHORITY. 

"I CAN NOT BUT REPEAT WHAT I HAVE BEFORE EXPRESSED, THAT IF THE
SEVERAL STATES, MANY OF WHICH HAVE ALREADY LAID THE FOUNDATION OF
MUNIFICENT ESTABLISHMENTS OF LOCAL BENEFICENCE, AND NEARLY ALL OF WHICH
ARE PROCEEDING TO ESTABLISH THEM, SHALL BE LED TO SUPPOSE, AS, SHOULD
THIS BILL BECOME A LAW, THEY WILL BE, THAT CONGRESS IS TO MAKE
PROVISION FOR SUCH OBJECTS, THE FOUNTAINS OF CHARITY WILL BE DRIED UP
AT HOME, AND THE SEVERAL STATES, INSTEAD OF BESTOWING THEIR OWN MEANS
ON THE SOCIAL WANTS OF THEIR OWN PEOPLE, MAY THEMSELVES, THROUGH THE
STRONG TEMPTATION WHICH APPEALS TO STATES AS TO INDIVIDUALS, BECOME
HUMBLE SUPPLIANTS FOR THE BOUNTY OF THE FEDERAL GOVERNMENT, REVERSING
THEIR TRUE RELATIONS TO THIS UNION. 

     .         .         .         .         . 

"I HAVE BEEN UNABLE TO DISCOVER ANY DISTINCTION ON CONSTITUTIONAL
GROUNDS OR GROUNDS OF EXPEDIENCY BETWEEN AN APPROPRIATION OF
$10,000,000 DIRECTLY FROM THE MONEY IN THE TREASURY FOR THE OBJECT
CONTEMPLATED AND THE APPROPRIATION OF LANDS PRESENTED FOR MY SANCTION,
AND YET I CAN NOT DOUBT THAT IF THE BILL PROPOSED $10,000,000 FROM THE
TREASURY OF THE UNITED STATES FOR THE SUPPORT OF THE INDIGENT INSANE IN
THE SEVERAL STATES THAT THE CONSTITUTIONAL QUESTION INVOLVED IN THE ACT
WOULD HAVE ATTRACTED FORCIBLY THE ATTENTION OF CONGRESS. 

"I RESPECTFULLY SUBMIT THAT IN A CONSTITUTIONAL POINT OF VIEW IT IS
WHOLLY IMMATERIAL WHETHER THE APPROPRIATION BE IN MONEY OR IN LAND. 

     .      .         .         .         . 

"TO ASSUME THAT THE PUBLIC LANDS ARE APPLICABLE TO ORDINARY STATE
OBJECTS, WHETHER OF PUBLIC STRUCTURES, POLICE, CHARITY, OR EXPENSES OF
STATE ADMINISTRATION, WOULD BE TO DISREGARD TO THE AMOUNT OF THE VALUE
OF THE PUBLIC LANDS ALL THE LIMITATIONS OF THE CONSTITUTION AND
CONFOUND TO THAT EXTENT ALL DISTINCTIONS BETWEEN THE RIGHTS AND POWERS
OF THE STATES AND THOSE OF THE UNITED STATES; FOR IF THE PUBLIC LANDS
MAY BE APPLIED TO THE SUPPORT OF THE POOR, WHETHER SANE OR INSANE, IF
THE DISPOSAL OF THEM AND THEIR PROCEEDS BE NOT SUBJECT TO THE ORDINARY
LIMITATIONS OF THE CONSTITUTION, THEN CONGRESS POSSESSES UNQUALIFIED
POWER TO PROVIDE FOR EXPENDITURES IN THE STATES BY MEANS OF THE PUBLIC
LANDS, EVEN TO THE DEGREE OF DEFRAYING THE SALARIES OF GOVERNORS,
JUDGES, AND ALL OTHER EXPENSES OF THE GOVERNMENT AND INTERNAL
ADMINISTRATION WITHIN THE SEVERAL STATES. 

"THE CONCLUSION FROM THE GENERAL SURVEY OF THE WHOLE SUBJECT IS TO MY
MIND IRRESISTIBLE, AND CLOSES THE QUESTION BOTH OF RIGHT AND OF
EXPEDIENCY SO FAR AS REGARDS THE PRINCIPLE OF THE APPROPRIATION
PROPOSED IN THIS BILL.  WOULD NOT THE ADMISSION OF SUCH POWER IN
CONGRESS TO DISPOSE OF THE PUBLIC DOMAIN WORK THE PRACTICAL ABROGATION
OF SOME OF THE MOST IMPORTANT PROVISIONS OF THE CONSTITUTION? 

     .    .         .         .         . 

"THE GENERAL RESULT AT WHICH I HAVE ARRIVED IS THE NECESSARY
CONSEQUENCE OF THOSE VIEWS OF THE RELATIVE RIGHTS, POWERS, AND DUTIES
OF THE STATES AND OF THE FEDERAL GOVERNMENT WHICH I HAVE LONG
ENTERTAINED AND OFTEN EXPRESSED AND IN REFERENCE TO WHICH MY
CONVICTIONS DO BUT INCREASE IN FORCE WITH TIME AND EXPERIENCE." 

NO DEFENSE IS OFFERED FOR THE LEGISLATION UNDER REVIEW UPON THE BASIS
OF EMERGENCY.  THE HYPOTHESIS IS THAT HEREAFTER IT WILL CONTINUOUSLY
BENEFIT UNEMPLOYED MEMBERS OF A CLASS.  FOREVER, SO FAR AS WE CAN SEE,
THE STATES ARE EXPECTED TO FUNCTION UNDER FEDERAL DIRECTION CONCERNING
AN INTERNAL MATTER.  BY THE SANCTION OF THIS ADVENTURE, THE DOOR IS
OPEN FOR PROGRESSIVE INAUGURATION OF OTHERS OF LIKE KIND UNDER WHICH IT
CAN HARDLY BE EXPECTED THAT THE STATES WILL RETAIN GENUINE INDEPENDENCE
OF ACTION.  AND WITHOUT INDEPENDENT STATES A FEDERAL UNION AS
CONTEMPLATED BY THE CONSTITUTION BECOMES IMPOSSIBLE. 

AT THE BAR COUNSEL ASSERTED THAT UNDER THE PRESENT ACT THE TAX UPON
RESIDENTS OF ALABAMA DURING THE FIRST YEAR WILL TOTAL $9,000,000.  ALL
WOULD REMAIN IN THE FEDERAL TREASURY BUT FOR THE ADOPTION BY THE STATE
OF MEASURES AGREEABLE TO THE NATIONAL BOARD.  IF CONTINUED, THESE WILL
BRING RELIEF FROM THE PAYMENT OF $8,000,000 TO THE UNITED STATES. 

ORDINARILY, I MUST THINK, A DENIAL THAT THE CHALLENGED ACTION OF
CONGRESS AND WHAT HAS BEEN DONE UNDER IT AMOUNT TO COERCION AND IMPAIR
FREEDOM OF GOVERNMENT BY THE PEOPLE OF THE STATE WOULD BE REGARDED AS
CONTRARY TO PRACTICAL EXPERIENCE.  UNQUESTIONABLY OUR FEDERATE PLAN OF
GOVERNMENT CONFRONTS AN ENLARGED PERIL. 

SEPARATE OPINION OF MR. JUSTICE SUTHERLAND. 

WITH MOST OF WHAT IS SAID IN THE OPINION JUST HANDED DOWN, I CONCUR. 
I AGREE THAT THE PAYROLL TAX LEVIED IS AN EXCISE WITHIN THE POWER OF
CONGRESS; THAT THE DEVOTION OF NOT MORE THAN 90% OF IT TO THE CREDIT OF
EMPLOYERS IN STATES WHICH REQUIRE THE PAYMENT OF A SIMILAR TAX UNDER SO
CALLED UNEMPLOYMENT-TAX LAWS IS NOT AN UNCONSTITUTIONAL USE OF THE
PROCEEDS OF THE FEDERAL TAX; THAT THE PROVISION MAKING THE ADOPTION BY
THE STATE OF AN UNEMPLOYMENT LAW OF A SPECIFIED CHARACTER A CONDITION
PRECEDENT TO THE CREDIT OF THE TAX DOES NOT RENDER THE LAW INVALID.  I
AGREE THAT THE STATES ARE NOT COERCED BY THE FEDERAL LEGISLATION INTO
ADOPTING UNEMPLOYMENT LEGISLATION.  THE PROVISIONS OF THE FEDERAL LAW
MAY OPERATE TO INDUCE THE STATE TO PASS AN EMPLOYMENT LAW IF IT REGARDS
SUCH ACTION TO BE IN ITS INTEREST.  BUT THAT IS NOT COERCION.  IF THE
ACT STOPPED HERE, I SHOULD ACCEPT THE CONCLUSION OF THE COURT THAT THE
LEGISLATION IS NOT UNCONSTITUTIONAL. 

BUT THE QUESTION WITH WHICH I HAVE DIFFICULTY IS WHETHER THE
ADMINISTRATIVE PROVISIONS OF THE ACT INVADE THE GOVERNMENTAL
ADMINISTRATIVE POWERS OF THE SEVERAL STATES RESERVED BY THE TENTH
AMENDMENT.  A STATE MAY ENTER INTO CONTRACTS; BUT A STATE CANNOT, BY
CONTRACT OR STATUTE, SURRENDER THE EXECUTION, OR A SHARE IN THE
EXECUTION, OF ANY OF ITS GOVERNMENTAL POWERS EITHER TO A SISTER STATE
OR TO THE FEDERAL GOVERNMENT, ANY MORE THAN THE FEDERAL GOVERNMENT CAN
SURRENDER THE CONTROL OF ANY OF ITS GOVERNMENTAL POWERS TO A FOREIGN
NATION.  THE POWER TO TAX IS VITAL AND FUNDAMENTAL, AND, IN THE HIGHEST
DEGREE, GOVERNMENTAL IN CHARACTER.  WITHOUT IT, THE STATE COULD NOT
EXIST.  FUNDAMENTAL ALSO, AND NO LESS IMPORTANT, IS THE GOVERNMENTAL
POWER TO EXPEND THE MONEYS REALIZED FROM TAXATION, AND EXCLUSIVELY TO
ADMINISTER THE LAWS IN RESPECT OF THE CHARACTER OF THE TAX AND THE
METHODS OF LAYING AND COLLECTING IT AND EXPENDING THE PROCEEDS. 

THE PEOPLE OF THE UNITED STATES, BY THEIR CONSTITUTION, HAVE AFFIRMED
A DIVISION OF INTERNAL GOVERNMENTAL POWERS BETWEEN THE FEDERAL
GOVERNMENT AND THE GOVERNMENTS OF THE SEVERAL STATES - COMMITTING TO
THE FIRST ITS POWERS BY EXPRESS GRANT AND NECESSARY IMPLICATION; TO THE
LATTER, OR TO THE PEOPLE, BY RESERVATION, "THE POWERS NOT DELEGATED TO
THE UNITED STATES BY THE CONSTITUTION, NOR PROHIBITED BY IT TO THE
STATES."  THE CONSTITUTION THUS AFFIRMS THE COMPLETE SUPREMACY AND
INDEPENDENCE OF THE STATE WITHIN THE FIELD OF ITS POWERS.  CARTER V.
CARTER COAL CO., 298 U.S. 238, 295.  THE FEDERAL GOVERNMENT HAS NO MORE
AUTHORITY TO INVADE THAT FIELD THAN THE STATE HAS TO INVADE THE
EXCLUSIVE FIELD OF NATIONAL GOVERNMENTAL POWERS; FOR, IN THE OFT
REPEATED WORDS OF THIS COURT IN TEXAS V. WHITE, 7 WALL.  700, 725, "THE
PRESERVATION OF THE STATES, AND THE MAINTENANCE OF THEIR GOVERNMENTS,
ARE AS MUCH WITHIN THE DESIGN AND CARE OF THE CONSTITUTION AS THE
PRESERVATION OF THE UNION AND THE MAINTENANCE OF THE NATIONAL
GOVERNMENT."  THE NECESSITY OF PRESERVING EACH FROM EVERY FORM OF
ILLEGITIMATE INTRUSION OR INTERFERENCE ON THE PART OF THE OTHER IS SO
IMPERATIVE AS TO REQUIRE THIS COURT, WHEN ITS JUDICIAL POWER IS
PROPERLY INVOKED, TO VIEW WITH A CAREFUL AND DISCRIMINATING EYE ANY
LEGISLATION CHALLENGED AS CONSTITUTING SUCH AN INTRUSION OR
INTERFERENCE.  SEE SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437, 448. 

THE PRECISE QUESTION, THEREFORE, WHICH WE ARE REQUIRED TO ANSWER BY
AN APPLICATION OF THESE PRINCIPLES IS WHETHER THE CONGRESSIONAL ACT
CONTEMPLATES A SURRENDER BY THE STATE TO THE FEDERAL GOVERNMENT, IN
WHOLE OR IN PART, OF ANY STATE GOVERNMENTAL POWER TO ADMINISTER ITS OWN
UNEMPLOYMENT LAW OR THE STATE PAYROLL-TAX FUNDS WHICH IT HAS COLLECTED
FOR THE PURPOSES OF THAT LAW.  AN AFFIRMATIVE ANSWER TO THIS QUESTION,
I THINK, MUST BE MADE. 

I DO NOT, OF COURSE, DOUBT THE POWER OF THE STATE TO SELECT AND
UTILIZE A DEPOSITORY FOR THE SAFEKEEPING OF ITS FUNDS; BUT IT IS QUITE
ANOTHER THING TO AGREE WITH THE SELECTED DEPOSITORY THAT THE FUNDS
SHALL BE WITHDRAWN FOR CERTAIN STIPULATED PURPOSES, AND FOR NO OTHER. 
NOR DO I DOUBT THE AUTHORITY OF THE FEDERAL GOVERNMENT AND A STATE
GOVERNMENT TO COOPERATE TO A COMMON END, PROVIDED EACH OF THEM IS
AUTHORIZED TO REACH IT.  BUT SUCH COOPERATION MUST BE EFFECTUATED BY AN
EXERCISE OF THE POWERS WHICH THEY SEVERALLY POSSESS, AND NOT BY AN
EXERCISE, THROUGH INVASION OR SURRENDER, BY ONE OF THEM OF THE
GOVERNMENTAL POWER OF THE OTHER. 

AN ILLUSTRATION OF WHAT I REGARD AS PERMISSIBLE COOPERATION IS TO BE
FOUND IN TITLE I OF THE ACT NOW UNDER CONSIDERATION.  BY THAT TITLE,
FEDERAL APPROPRIATIONS FOR OLD-AGE ASSISTANCE ARE AUTHORIZED TO BE MADE
TO ANY STATE WHICH SHALL HAVE ADOPTED A PLAN FOR OLD-AGE ASSISTANCE
CONFORMING TO DESIGNATED REQUIREMENTS.  BUT THE STATE IS NOT OBLIGED,
AS A CONDITION OF HAVING THE FEDERAL BOUNTY, TO DEPOSIT IN THE FEDERAL
TREASURY FUNDS RAISED BY THE STATE.  THE STATE KEEPS ITS OWN FUNDS AND
ADMINISTERS ITS OWN LAW IN RESPECT OF THEM, WITHOUT LET OR HINDRANCE OF
ANY KIND ON THE PART OF THE FEDERAL GOVERNMENT; SO THAT WE HAVE SIMPLY
THE FAMILIAR CASE OF FEDERAL AID UPON CONDITIONS WHICH THE STATE,
WITHOUT SURRENDERING ANY OF ITS POWERS, MAY ACCEPT OR NOT AS IT
CHOOSES.  MASSACHUSETTS V. MELLON, 262 U.S. 447, 480, 482-483. 

BUT THIS IS NOT THE SITUATION WITH WHICH WE ARE CALLED UPON TO DEAL
IN THE PRESENT CASE.  FOR HERE, THE STATE MUST DEPOSIT THE PROCEEDS OF
ITS TAXATION IN THE FEDERAL TREASURY, UPON TERMS WHICH MAKE THE DEPOSIT
SUSPICIOUSLY LIKE A FORCED LOAN TO BE REPAID ONLY IN ACCORDANCE WITH
RESTRICTIONS IMPOSED BY FEDERAL LAW.  TITLE IX, SECS. 903(A)(3),
904(A), (B), (E).  ALL MONEYS WITHDRAWN FROM THIS FUND MUST BE USED
EXCLUSIVELY FOR THE PAYMENT OF COMPENSATION.  SEC. 903(A)(4).  AND THIS
COMPENSATION IS TO BE PAID THROUGH PUBLIC EMPLOYMENT OFFICES IN THE
STATE OR SUCH OTHER AGENCIES AS A FEDERAL BOARD MAY APPROVE.  SEC.
903(A)(1).  THE ACT, IT IS TRUE, RECOGNIZES (SEC. 903(A)(6)) THE POWER
OF THE LEGISLATURE TO AMEND OR REPEAL ITS COMPENSATION LAW AT ANY
TIME.  BUT THERE IS NOTHING IN THE ACT, AS I READ IT, WHICH JUSTIFIES
THE CONCLUSION THAT THE STATE MAY, IN THAT EVENT, UNCONDITIONALLY
WITHDRAW ITS FUNDS FROM THE FEDERAL TREASURY.  SECTION 903(B) PROVIDES
THAT THE BOARD SHALL CERTIFY IN EACH TAXABLE YEAR TO THE SECRETARY OF
THE TREASURY EACH STATE WHOSE LAW HAS BEEN APPROVED.  BUT THE BOARD IS
FORBIDDEN TO CERTIFY ANY STATE WHICH THE BOARD FINDS HAS SO CHANGED ITS
LAW THAT IT NO LONGER CONTAINS THE PROVISIONS SPECIFIED IN SUBSECTION
(A), "OR HAS WITH RESPECT TO SUCH TAXABLE YEAR FAILED TO COMPLY
SUBSTANTIALLY WITH ANY SUCH PROVISION."  THE FEDERAL GOVERNMENT,
THEREFORE, IN THE PERSON OF ITS AGENT, THE BOARD, SITS NOT ONLY AS A
PERPETUAL OVERSEER, INTERPRETER AND CENSOR OF STATE LEGISLATION ON THE
SUBJECT, BUT, AS LORD PARAMOUNT, TO DETERMINE WHETHER THE STATE IS
FAITHFULLY EXECUTING ITS OWN LAW - AS THOUGH THE STATE WERE A
DEPENDENCY UNDER PUPILAGE*  AND NOT TO BE TRUSTED.  THE FOREGOING,
TAKEN IN CONNECTION WITH THE PROVISIONS THAT MONEY WITHDRAWN CAN BE
USED ONLY IN PAYMENT OF COMPENSATION AND THAT IT MUST BE PAID THROUGH
AN AGENCY APPROVED BY THE FEDERAL BOARD, LEAVES IT, TO SAY THE LEAST,
HIGHLY UNCERTAIN WHETHER THE RIGHT OF THE STATE TO WITHDRAW ANY PART OF
ITS OWN FUNDS EXISTS, UNDER THE ACT, OTHERWISE THAN UPON THESE VARIOUS
STATUTORY CONDITIONS.  IT IS TRUE ALSO THAT SUBSECTION (F) OF SEC. 904
AUTHORIZES THE SECRETARY OF THE TREASURY TO PAY TO ANY STATE AGENCY
"SUCH AMOUNT AS IT MAY DULY REQUISITION, NOT EXCEEDING THE AMOUNT
STANDING TO THE ACCOUNT OF SUCH STATE AGENCY AT THE TIME OF SUCH
PAYMENT."  BUT IT IS TO BE OBSERVED THAT THE PAYMENT IS TO BE MADE TO
THE STATE AGENCY, AND ONLY SUCH AMOUNT AS THAT AGENCY MAY DULY
REQUISITION.  IT IS HARD TO FIND IN THIS PROVISION ANY EXTENSION OF THE
RIGHT OF THE STATE TO WITHDRAW ITS FUNDS EXCEPT IN THE MANNER AND FOR
THE SPECIFIC PURPOSE PRESCRIBED BY THE ACT.    *COMPARE SNOW V. UNITED
STATES, 18 WALL.  317, 319-320. 

BY THESE VARIOUS PROVISIONS OF THE ACT, THE FEDERAL AGENCIES ARE
AUTHORIZED TO SUPERVISE AND HAMPER THE ADMINISTRATIVE POWERS OF THE
STATE TO A DEGREE WHICH NOT ONLY DOES NOT COMPORT WITH THE DIGNITY OF A
QUASI-SOVEREIGN STATE - A MATTER WITH WHICH WE ARE NOT JUDICIALLY
CONCERNED - BUT WHICH DENIES TO IT THAT SUPREMACY AND FREEDOM FROM
EXTERNAL INTERFERENCE IN RESPECT OF ITS AFFAIRS WHICH THE CONSTITUTION
CONTEMPLATES - A MATTER OF VERY DEFINITE JUDICIAL CONCERN.  I REFER TO
SOME, THOUGH BY NO MEANS ALL, OF THE CASES IN POINT.    IN THE LICENSE
CASES, 5 HOW.  504, 588, MR. JUSTICE MCLEAN SAID THAT THE FEDERAL
GOVERNMENT WAS SUPREME WITHIN THE SCOPE OF ITS DELEGATED POWERS, AND
THE STATE GOVERNMENTS EQUALLY SUPREME IN THE EXERCISE OF THE POWERS NOT
DELEGATED BY NOR INHIBITED TO THEM; THAT THE STATES EXERCISE THEIR
POWERS OVER EVERYTHING CONNECTED WITH THEIR SOCIAL AND INTERNAL
CONDITION; AND THAT OVER THESE SUBJECTS THE FEDERAL GOVERNMENT HAD NO
POWER.  "THEY APPERTAIN TO THE STATE SOVEREIGNTY AS EXCLUSIVELY AS
POWERS EXCLUSIVELY DELEGATED APPERTAIN TO THE GENERAL GOVERNMENT." 

IN TARBLE'S CASE, 13 WALL.  397, MR. JUSTICE FIELD, AFTER POINTING
OUT THAT THE GENERAL GOVERNMENT AND THE STATE ARE SEPARATE AND DISTINCT
SOVEREIGNTIES, ACTING SEPARATELY AND INDEPENDENTLY OF EACH OTHER WITHIN
THEIR RESPECTIVE SPHERES, SAID THAT, EXCEPT IN ONE PARTICULAR, THEY
STOOD IN THE SAME INDEPENDENT RELATION TO EACH OTHER AS THEY WOULD IF
THEIR AUTHORITY EMBRACED DISTINCT TERRITORIES.  THE ONE PARTICULAR
REFERRED TO IS THAT OF THE SUPREMACY OF THE AUTHORITY OF THE UNITED
STATES IN CASE OF CONFLICT BETWEEN THE TWO. 

IN FARRINGTON V. TENNESSEE, 95 U.S. 679, 685, THIS COURT SAID, "YET
EVERY STATE HAS A SPHERE OF ACTION WHERE THE AUTHORITY OF THE NATIONAL
GOVERNMENT MAY NOT INTRUDE.  WITHIN THAT DOMAIN THE STATE IS AS IF THE
UNION WERE NOT.  SUCH ARE THE CHECKS AND BALANCES IN OUR COMPLICATED
BUT WISE SYSTEM OF STATE AND NATIONAL POLITY." 

"THE POWERS EXCLUSIVELY GIVEN TO THE FEDERAL GOVERNMENT," IT WAS SAID
IN WORCESTER V. GEORGIA, 6 PET. 515, 570, "ARE LIMITATIONS UPON THE
STATE AUTHORITIES.  BUT, WITH THE EXCEPTION OF THESE LIMITATIONS, THE
STATES ARE SUPREME; AND THEIR SOVEREIGNTY CAN BE NO MORE INVADED BY THE
ACTION OF THE GENERAL GOVERNMENT, THAN THE ACTION OF THE STATE
GOVERNMENTS CAN ARREST OR OBSTRUCT THE COURSE OF THE NATIONAL POWER." 

THE FORCE OF WHAT HAS BEEN SAID IS NOT BROKEN BY AN ACCEPTANCE OF THE
VIEW THAT THE STATE IS NOT COERCED BY THE FEDERAL LAW.  THE EFFECT OF
THE DUAL DISTRIBUTION OF POWERS IS COMPLETELY TO DENY TO THE STATES
WHATEVER IS GRANTED EXCLUSIVELY TO THE NATION, AND, CONVERSELY, TO DENY
TO THE NATION WHATEVER IS RESERVED EXCLUSIVELY TO THE STATES.  "THE
DETERMINATION OF THE FRAMERS CONVENTION AND THE RATIFYING CONVENTIONS
TO PRESERVE COMPLETE AND UNIMPAIRED STATE SELF-GOVERNMENT IN ALL
MATTERS NOT COMMITTED TO THE GENERAL GOVERNMENT IS ONE OF THE PLAINEST
FACTS WHICH EMERGE FROM THE HISTORY OF THEIR DELIBERATIONS.  AND
ADHERENCE TO THAT DETERMINATION IS INCUMBENT EQUALLY UPON THE FEDERAL
GOVERNMENT AND THE STATES.  STATE POWERS CAN NEITHER BE APPROPRIATED ON
THE ONE HAND NOR ABDICATED ON THE OTHER."  CARTER V. CARTER COAL CO.,
SUPRA, P. 295.  THE PURPOSE OF THE CONSTITUTION IN THAT REGARD DOES NOT
ADMIT OF DOUBT OR QUALIFICATION; AND IT CAN BE THWARTED NO MORE BY
VOLUNTARY SURRENDER FROM WITHIN THAN BY INVASION FROM WITHOUT. 

NOR MAY THE CONSTITUTIONAL OBJECTION SUGGESTED BE OVERCOME BY THE
EXPECTATION OF PUBLIC BENEFIT RESULTING FROM THE FEDERAL PARTICIPATION
AUTHORIZED BY THE ACT.  SUCH EXPECTATION, IF VOICED IN SUPPORT OF A
PROPOSED CONSTITUTIONAL ENACTMENT, WOULD BE QUITE PROPER FOR THE
CONSIDERATION OF THE LEGISLATIVE BODY.  BUT, AS WE SAID IN THE CARTER
CASE, SUPRA, P. 291 - "NOTHING IS MORE CERTAIN THAN THAT BENEFICENT
AIMS, HOWEVER GREAT OR WELL DIRECTED, CAN NEVER SERVE IN LIEU OF
CONSTITUTIONAL POWER."  MOREOVER, EVERYTHING WHICH THE ACT SEEKS TO DO
FOR THE RELIEF OF UNEMPLOYMENT MIGHT HAVE BEEN ACCOMPLISHED, AS IS DONE
BY THIS SAME ACT FOR THE RELIEF OF THE MISFORTUNES OF OLD AGE, WITHOUT
OBLIGING THE STATE TO SURRENDER, OR SHARE WITH ANOTHER GOVERNMENT, ANY
OF ITS POWERS. 

IF WE ARE TO SURVIVE AS THE UNITED STATES, THE BALANCE BETWEEN THE
POWERS OF THE NATION AND THOSE OF THE STATES MUST BE MAINTAINED.  THERE
IS GRAVE DANGER IN PERMITTING IT TO DIP IN EITHER DIRECTION, DANGER -
IF THERE WERE NO OTHER - IN THE PRECEDENT THEREBY SET FOR FURTHER
DEPARTURES FROM THE EQUIPOISE.  THE THREAT IMPLICIT IN THE PRESENT
ENCROACHMENT UPON THE ADMINISTRATIVE FUNCTIONS OF THE STATES IS THAT
GREATER ENCROACHMENTS, AND ENCROACHMENTS UPON OTHER FUNCTIONS, WILL
FOLLOW. 

FOR THE FOREGOING REASONS, I THINK THE JUDGMENT BELOW SHOULD BE
REVERSED. 

MR. JUSTICE VAN DEVANTER JOINS IN THIS OPINION. 

MR. JUSTICE BUTLER, DISSENTING. 

I THINK THAT THE OBJECTIONS TO THE CHALLENGED ENACTMENT EXPRESSED IN
THE SEPARATE OPINIONS OF MR. JUSTICE MCREYNOLDS AND MR. JUSTICE
SUTHERLAND ARE WELL TAKEN.  I AM ALSO OF OPINION THAT, IN PRINCIPLE AND
AS APPLIED TO BRING ABOUT AND TO GAIN CONTROL OVER STATE UNEMPLOYMENT
COMPENSATION, THE STATUTORY SCHEME IS REPUGNANT TO THE TENTH AMENDMENT:
"THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION,
NOR PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES
RESPECTIVELY, OR TO THE PEOPLE."  THE CONSTITUTION GRANTS TO THE UNITED
STATES NO POWER TO PAY UNEMPLOYED PERSONS OR TO REQUIRE THE STATES TO
ENACT LAWS OR TO RAISE OR DISBURSE MONEY FOR THAT PURPOSE.  THE
PROVISIONS IN QUESTION, IF NOT AMOUNTING TO COERCION IN A LEGAL SENSE,
ARE MANIFESTLY DESIGNED AND INTENDED DIRECTLY TO AFFECT STATE ACTION IN
THE RESPECTS SPECIFIED.  AND, IF VALID AS SO EMPLOYED, THIS "TAX AND
CREDIT" DEVICE MAY BE MADE EFFECTIVE TO ENABLE FEDERAL AUTHORITIES TO
INDUCE, IF NOT INDEED TO COMPEL, STATE ENACTMENTS FOR ANY PURPOSE
WITHIN THE REALM OF STATE POWER, AND GENERALLY TO CONTROL STATE
ADMINISTRATION OF STATE LAWS. 

THE ACT CREATES A SOCIAL SECURITY BOARD AND IMPOSES UPON IT THE DUTY
OF STUDYING AND MAKING RECOMMENDATIONS AS TO LEGISLATION AND AS TO
ADMINISTRATIVE POLICIES CONCERNING UNEMPLOYMENT COMPENSATION AND
RELATED SUBJECTS.  SEC. 702.  IT AUTHORIZES GRANTS OF MONEY BY THE
UNITED STATES TO STATES FOR OLD AGE ASSISTANCE, FOR ADMINISTRATION OF
UNEMPLOYMENT COMPENSATION, FOR AID TO DEPENDENT CHILDREN, FOR MATERNAL
AND CHILD WELFARE AND FOR PUBLIC HEALTH.  EACH GRANT DEPENDS UPON STATE
COMPLIANCE WITH CONDITIONS PRESCRIBED BY FEDERAL AUTHORITY.  THE
AMOUNTS GIVEN BEING WITHIN THE DISCRETION OF THE CONGRESS, IT MAY AT
ANY TIME MAKE AVAILABLE FEDERAL MONEY SUFFICIENT EFFECTIVELY TO
INFLUENCE STATE POLICY, STANDARDS AND DETAILS OF ADMINISTRATION. 

THE EXCISE LAID BY SEC. 901 IS LIMITED TO SPECIFIED EMPLOYERS.  IT IS
NOT IMPOSED TO RAISE MONEY TO PAY UNEMPLOYMENT COMPENSATION.  BUT IT IS
IMPOSED HAVING REGARD TO THAT SUBJECT; FOR, UPON ENACTMENT OF STATE
LAWS FOR THAT PURPOSE IN CONFORMITY WITH FEDERAL REQUIREMENTS SPECIFIED
IN THE ACT, EACH OF THE EMPLOYERS SUBJECT TO THE FEDERAL TAX BECOMES
ENTITLED TO CREDIT FOR THE AMOUNT HE PAYS INTO AN UNEMPLOYMENT FUND
UNDER A STATE LAW UP TO 90 PER CENT. OF THE FEDERAL TAX.  THE AMOUNTS
YIELDED BY THE REMAINING 10 PER CENT., NOT ASSIGNED TO ANY SPECIFIC
PURPOSE, MAY BE APPLIED TO PAY THE FEDERAL CONTRIBUTIONS AND EXPENSES
IN RESPECT OF STATE UNEMPLOYMENT COMPENSATION.  IT IS NOT YET POSSIBLE
TO DETERMINE MORE CLOSELY THE SUMS THAT WILL BE NEEDED FOR THESE
PURPOSES. 

WHEN THE FEDERAL ACT WAS PASSED WISCONSIN WAS THE ONLY STATE PAYING
UNEMPLOYMENT COMPENSATION.  THOUGH HER PLAN THEN IN FORCE IS BY
STUDENTS OF THE SUBJECT GENERALLY DEEMED THE BEST YET DEVISED, SHE
FOUND IT NECESSARY TO CHANGE HER LAW IN ORDER TO SECURE FEDERAL
APPROVAL.  IN THE ABSENCE OF THAT, WISCONSIN EMPLOYERS SUBJECT TO THE
FEDERAL TAX WOULD NOT HAVE BEEN ALLOWED ANY DEDUCTION ON ACCOUNT OF
THEIR CONTRIBUTION TO THE STATE FUND.  ANY STATE WOULD BE MOVED TO
CONFORM TO FEDERAL REQUIREMENTS, NOT UTTERLY OBJECTIONABLE, IN ORDER TO
SAVE ITS TAXPAYERS FROM THE FEDERAL TAX IMPOSED IN ADDITION TO THE
CONTRIBUTIONS UNDER STATE LAWS. 

FEDERAL AGENCIES PREPARED AND TOOK DRAFT BILLS TO STATE LEGISLATURES
TO ENABLE AND INDUCE THEM TO PASS LAWS PROVIDING FOR UNEMPLOYMENT
COMPENSATION IN ACCORDANCE WITH FEDERAL REQUIREMENTS, AND THUS TO
OBTAIN RELIEF FOR THE EMPLOYERS FROM THE IMPENDING FEDERAL EXACTION. 
OBVIOUSLY THE ACT CREATES THE PERIL OF FEDERAL TAX NOT TO RAISE REVENUE
BUT TO PERSUADE.  OF COURSE, EACH STATE WAS FREE TO REJECT ANY MEASURE
SO PROPOSED.  BUT, IF IT FAILED TO ADOPT A PLAN ACCEPTABLE TO FEDERAL
AUTHORITY, THE FULL BURDEN OF THE FEDERAL TAX WOULD BE EXACTED.  AND,
AS FEDERAL DEMANDS SIMILARLY CONDITIONED MAY BE INCREASED FROM TIME TO
TIME AS CONGRESS SHALL DETERMINE, POSSIBLE FEDERAL PRESSURE IN THAT
FIELD IS WITHOUT LIMIT.  ALREADY AT LEAST 43 STATES, YIELDING TO THE
INDUCEMENT RESULTING IMMEDIATELY FROM THE APPLICATION OF THE FEDERAL
TAX AND CREDIT DEVICE, HAVE PROVIDED FOR UNEMPLOYMENT COMPENSATION IN
FORM TO MERIT APPROVAL OF THE SOCIAL SECURITY BOARD.  PRESUMABLY THE
REMAINING STATES WILL COMPLY WHENEVER CONVENIENT FOR THEIR LEGISLATURES
TO PASS THE NECESSARY LAWS. 

THE TERMS OF THE MEASURE MAKE IT CLEAR THAT THE TAX AND CREDIT DEVICE
WAS INTENDED TO ENABLE FEDERAL OFFICERS VIRTUALLY TO CONTROL THE
EXERTION OF POWERS OF THE STATES IN A FIELD IN WHICH THEY ALONE HAVE
JURISDICTION AND FROM WHICH THE UNITED STATES IS BY THE CONSTITUTION
EXCLUDED. 

I AM OF OPINION THAT THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS
SHOULD BE REVERSED. 
..END :







HELVERING V. DAVIS, 301 U.S. 619 


NO. 910.  ARGUED MAY 5, 1937.  - DECIDED MAY 24, 1937.  - 89 F.(2D) 393,
REVERSED. 


1.  THE COURT ABSTAINS FROM DISMISSING, SUA SPONTE, AS NOT PROPERLY
WITHIN EQUITY JURISDICTION, A BILL BY A SHAREHOLDER TO RESTRAIN HIS
CORPORATION FROM MAKING THE TAX PAYMENTS AND THE DEDUCTIONS FROM WAGES
REQUIRED BY TITLE VIII OF THE SOCIAL SECURITY ACT OF AUGUST 14, 1935,
THE BILL ALLEGING THAT THE EXACTIONS ARE VOID AND THAT COMPLIANCE WILL
SUBJECT THE CORPORATION AND ITS SHAREHOLDERS TO IRREPARABLE DAMAGE.  P.
639. 

THE CORPORATION ACQUIESCED.  THE COLLECTOR AND COMMISSIONER OF
INTERNAL REVENUE INTERVENED IN THE COURT BELOW, DEFENDED ON THE MERITS,
BROUGHT THE CASE TO THIS COURT BY CERTIORARI, AND HERE EXPRESSLY WAIVED
A DEFENSE UNDER R.S. SEC. 3224 AND ANY OBJECTION UPON THE GROUND OF
ADEQUATE LEGAL REMEDY, AND URGED THAT THE VALIDITY OF THE TAXES BE
DETERMINED. 

2.  THE SCHEME OF "FEDERAL OLD-AGE BENEFITS" SET UP BY TITLE II OF
THE SOCIAL SECURITY ACT DOES NOT CONTRAVENE THE LIMITATIONS OF THE
TENTH AMENDMENT.  P. 640. 

3.  CONGRESS MAY SPEND MONEY IN AID OF THE "GENERAL WELFARE."  P.
640. 

4.  IN DRAWING THE LINE BETWEEN WHAT IS "GENERAL" WELFARE, AND WHAT
IS PARTICULAR, THE DETERMINATION OF CONGRESS MUST BE RESPECTED BY THE
COURTS, UNLESS IT BE PLAINLY ARBITRARY.  P. 640. 

5.  THE CONCEPT OF "GENERAL WELFARE" IS NOT STATIC BUT ADAPTS ITSELF
TO THE CRISES AND NECESSITIES OF THE TIMES.  P. 641. 

6.  THE PROBLEM OF SECURITY FOR THE AGED, LIKE THE GENERAL PROBLEM OF
UNEMPLOYMENT, IS NATIONAL AS WELL AS LOCAL.  CF. STEWARD MACHINE CO. V.
DAVIS, ANTE P. 548.  P. 644. 

THERE IS GROUND TO BELIEVE THAT LAWS AND RESOURCES OF THE SEPARATE
STATES UNAIDED, CAN NOT DEAL WITH THIS PROBLEM EFFECTIVELY.  STATE
GOVERNMENTS ARE RELUCTANT TO PLACE SUCH HEAVY BURDENS UPON THEIR
RESIDENTS LEST THEY INCUR ECONOMIC DISADVANTAGES AS COMPARED WITH
NEIGHBORS OR COMPETITORS; AND A SYSTEM OF OLD AGE PENSIONS ESTABLISHED
IN ONE STATE ENCOURAGES IMMIGRATION OF NEEDY PERSONS FROM OTHER STATES
WHICH HAVE REJECTED SUCH SYSTEMS.  P. 644. 

7.  WHEN MONEY IS SPENT TO PROMOTE THE GENERAL WELFARE, THE CONCEPT
OF WELFARE OR THE OPPOSITE IS SHAPED BY CONGRESS, NOT THE STATES.  P.
645. 

8.  TITLE II OF THE SOCIAL SECURITY ACT PROVIDES FOR "FEDERAL OLD-AGE
BENEFITS" FOR PERSONS WHO HAVE ATTAINED THE AGE OF 65.  IT CREATES AN
"OLD-AGE RESERVE ACCOUNT" IN THE TREASURY AND AUTHORIZES FUTURE
APPROPRIATIONS TO PROVIDE FOR THE REQUIRED OLD-AGE PAYMENTS, BUT IN
ITSELF NEITHER APPROPRIATES MONEY NOR BRINGS ANY MONEY INTO THE
TREASURY.  TITLE VIII IMPOSES AN "EXCISE" TAX ON EMPLOYERS, TO BE PAID
"WITH RESPECT TO HAVING INDIVIDUALS IN THEIR EMPLOY," MEASURED ON THE
WAGES, AND AN "INCOME TAX ON EMPLOYEES," MEASURED ON THEIR WAGES, TO BE
COLLECTED BY THEIR EMPLOYERS BY DEDUCTION FROM WAGES.  THESE TAXES ARE
NOT APPLICABLE TO CERTAIN KINDS OF EMPLOYMENT, INCLUDING AGRICULTURAL
LABOR, DOMESTIC SERVICE, SERVICE FOR THE NATIONAL OR STATE GOVERNMENTS,
AND SERVICE PERFORMED BY PERSONS WHO HAVE ATTAINED THE AGE OF 65
YEARS.  HELD: 

(1)  TITLE II BEING VALID, THERE IS NO OCCASION TO INQUIRE WHETHER
TITLE VIII MUST FALL IF TITLE II WERE VOID.  P. 645. 

(2)  THE TAX UPON EMPLOYERS IS A VALID EXCISE OR DUTY UPON THE
RELATION OF EMPLOYMENT.  STEWARD MACHINE CO. V. DAVIS, ANTE P. 548.  P.
645. 

(3)  THE TAX IS NOT INVALID AS A RESULT OF ITS EXEMPTIONS.  STEWARD
MACHINE CO. V. DAVIS, ANTE, P. 548.  P. 646. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, ET AL. V. DAVIS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, POST, P. 674, TO REVIEW THE REVERSAL OF A DECREE OF THE
DISTRICT COURT DENYING AN INJUNCTION AND DISMISSING THE BILL IN A SUIT
BY DAVIS, A SHAREHOLDER OF THE EDISON ELECTRIC ILLUMINATING COMPANY OF
BOSTON, TO ENJOIN THE CORPORATION FROM COMPLYING WITH TAX REQUIREMENTS
OF TITLE VIII OF THE SOCIAL SECURITY ACT. 

SINCE THE EMPLOYER IS MERELY A WITHHOLDING AGENT WITH RESPECT TO THE
EMPLOYEE TAX, NEITHER CORPORATION NOR STOCKHOLDER MAY ASK FOR RELIEF
FROM IT. 

BOTH THE EMPLOYEE TAX (A SPECIAL INCOME TAX, UNITED STATES V. HUDSON,
299 U.S. 498) AND THE EMPLOYER TAX (AN EXCISE) COMPLY WITH THE
REQUIREMENT OF UNIFORMITY. 

THESE ARE TRUE TAXES, THEIR PURPOSE BEING SIMPLY TO RAISE REVENUE. 
NO COMPLIANCE WITH ANY SCHEME OF FEDERAL REGULATION IS INVOLVED.  THE
PROCEEDS ARE PAID UNRESTRICTED INTO THE TREASURY AS INTERNAL REVENUE
COLLECTIONS, AVAILABLE FOR THE GENERAL SUPPORT OF THE GOVERNMENT. 
ALTHOUGH CONGRESS MAY HAVE ANTICIPATED THAT OVER A PERIOD OF YEARS THE
TAXES WOULD ROUGHLY OFFSET THE DRAIN UPON THE TREASURY TO BE OCCASIONED
BY THE WHOLLY INDEPENDENT APPROPRIATIONS AUTHORIZED UNDER TITLE II,
SUCH ROUGH BUDGETARY EQUIVALENCE IS NOT SUFFICIENT TO DEPRIVE TITLE
VIII OF ITS QUALITY AS A TRUE TAXING MEASURE. 

THE CIRCUIT COURT OF APPEALS ERRED IN UNDERTAKING TO PASS UPON THE
VALIDITY OF TITLE II. FROTHINGHAM V. MELLON, 262 U.S. 447.  A TAXPAYER
HAS NO STANDING TO QUESTION THE PROPRIETY OF ANY EXPENDITURES FROM THE
FEDERAL TREASURY.  THAT RULE HAS BEEN RELAXED ONLY WHERE THE TAX AVAILS
ARE EARMARKED FOR A SPECIFIC PURPOSE. 

THE EMPLOYEE TAX IS A WITHHOLDING AT THE SOURCE, THE EMPLOYER BEING A
COLLECTING AGENT OR STAKEHOLDER.  THE WITHHOLDING PROVISIONS THEMSELVES
ARE NOT CHALLENGED, NOR COULD THEY BE SUCCESSFULLY ATTACKED.  BRUSHABER
V. UNION PACIFIC R. CO., 240 U.S. 1, 21; PIERCE OIL CORP. V. HOPKINS,
264 U.S. 137; BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 239. 
THE EMPLOYER, AS STAKEHOLDER, HAS NO LOCUS STANDI TO CHALLENGE THIS
TAX.  UNITED STATES V. AMERICAN EXCHANGE CO., 43 F.(2D) 829; UNITED
STATES V. FIRST CAPITAL BANK, 98 F.(2D) 116; MIAMI VALLEY FRUIT CO. V.
UNITED STATES, 45 F.(2D) 303; UNITED STATES V. ERB, 8 F.SUPP.  947. 

THE CORPORATION CAN COMPLAIN ONLY OF THE INFRINGEMENT OF ITS OWN
CONSTITUTIONAL IMMUNITY.  VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300
U.S. 515.  NO EMPLOYEE IS COMPLAINING.  JEFFREY MFG. CO. V. BLAGG, 235
U.S. 571, 576.  SEE ERIE R. CO. V. WILLIAMS, 233 U.S. 685, 697; RAIL
COAL CO. V. OHIO INDUSTRIAL COMM'N, 236 U.S. 338, 349; HAWKINS V.
BLEAKLY, 243 U.S. 210, 214.  THE STANDING OF THE STOCKHOLDER CANNOT BE
ANY BETTER THAN THAT OF HIS CORPORATION. 

THE POWER TO APPROPRIATE FOR THE GENERAL WELFARE GRANTED BY ART. I,
SEC. 8, CL. 1, IS NOT LIMITED BY OR TO THE OTHER ENUMERATED POWERS OF
CONGRESS.  UNITED STATES V. BUTLER, 297 U.S. 1.  WHETHER ANY PARTICULAR
EXPENDITURE IS FOR THE GENERAL WELFARE IS A MATTER COMPLETELY WITHIN
THE DETERMINATION OF CONGRESS.  UNITED STATES V. TELLER, 107 U.S. 64,
68.  THE DECISION OF CONGRESS IS NOT REVIEWABLE BY THE COURTS IF BY ANY
"REASONABLE POSSIBILITY IT IS FOR THE GENERAL WELFARE."  UNITED STATES
V. BUTLER, 297 U.S. 1, 65. 

THE EXPENDITURES IN THE PRESENT CASE ARE CLEARLY WELL WITHIN THE
LIMITS OF THE POWER OF CONGRESS.  THE NUMBER OF AGED PERSONS IN THIS
COUNTRY IS RAPIDLY INCREASING; WORKERS IN URBAN INDUSTRIALIZED
CIVILIZATION USUALLY ARRIVE AT OLD AGE WITHOUT ADEQUATE MEANS FOR SELF
SUPPORT, AS IS DEMONSTRATED NOT ONLY BY THEIR EARNING POWERS DURING
THEIR WORKING LIFETIME BUT BY VARIOUS STUDIES WHICH HAVE BEEN MADE OF
THE EXTENT OF DEPENDENCY OF PEOPLE OVER 65 YEARS OF AGE.  THOSE WHO ARE
ABLE TO CALL UPON THEIR CHILDREN FOR SUPPORT ONLY AGGRAVATE THE EVIL BY
DEPRIVING THE YOUNGER MEMBERS OF THE FAMILY OF THE RESOURCES WHICH THEY
NEED.  VOLUNTARY INDUSTRIAL PENSION PLANS COVER BUT A FEW.  PRIVATE
CHARITY IS INADEQUATE TO COPE WITH THE PROBLEM.  EVEN STATE OLD AGE
BENEFIT LAWS PRESENT GRAVE ADMINISTRATIVE AND FINANCIAL PROBLEMS. 

THEREFORE, THE EXPENDITURES CONTEMPLATED BY TITLE II ARE FOR THE
GENERAL WELFARE OF THE UNITED STATES.  MOREOVER, THE FORM OF THE
EXPENDITURES IS SOUNDLY DESIGNED TO PROMOTE GENERAL WELFARE.  THE
STATUTE EXCLUDES EMPLOYED AGED PERSONS, THEREBY PROVIDING A SIMPLE AND
EASILY ADMINISTERED MEANS TEST WHICH IS LEGALLY SUFFICIENT.  MOUNTAIN
TIMBER CO. V. WASHINGTON, 243 U.S. 219, 230.  THE PAYMENTS THEMSELVES
ARE GRADUATED BOTH BY WAGES AND LENGTH OF EMPLOYMENT, SO AS TO PROVIDE
AN INCENTIVE TO WORK AND AT THE SAME TIME ROUGHLY TO RELATE BENEFITS TO
PAST STANDARDS OF LIVING.  THE INCIDENTAL LUMP SUM PAYMENTS UNDER SECS.
203 AND 204 ACCORD WITH THE GENERAL PURPOSE OF THE PLAN AND ALSO SERVE
TO SIMPLIFY ITS ADMINISTRATION.  THE EXCLUSIONS FROM BENEFITS ARE BASED
UPON SOUND ADMINISTRATIVE AND ECONOMIC REASONS. 

SINCE TITLES II AND VIII SEVERALLY CONSTITUTE VALID EXERCISES OF
CONGRESSIONAL POWER, THEY CANNOT BE INVALID WHEN CONSIDERED JOINTLY. 
IF IT BE SAID THAT THE AVAILS OF THE TAXES ARE EARMARKED, THAT FACT
DOES NOT DEPRIVE THE TAXES OF THEIR QUALITY AS TRUE TAXES, EVEN THOUGH
THE PROCEEDS BE EARMARKED FOR THE PAYMENT OF BENEFITS TO A PARTICULAR
GROUP.  IF THE PAYMENT OF BENEFITS UNDER TITLE II IS AN EXPENDITURE FOR
THE GENERAL WELFARE, THEN A LEVY FOR THE PURPOSE OF PROVIDING FUNDS FOR
SUCH EXPENDITURE MUST BE A TAX WITHIN THE MEANING OF THE CONSTITUTION. 
TO DETERMINE THAT THE EXPENDITURES ARE FOR THE GENERAL WELFARE IS TO
DETERMINE THAT THEY ARE FOR THE BENEFIT OF THE TAXPAYERS AS WELL AS FOR
THE BENEFIT OF THE DIRECT RECIPIENTS OF THE EXPENDITURES.  A TAX DOES
NOT CEASE TO BE ONE FOR THE GENERAL WELFARE BECAUSE THE IMMEDIATE
APPLICATION OF THE PROCEEDS IS TO ONE GROUP OF THE POPULATION.  CLARK
V. POOR, 274 U.S. 554; GILLUM V. JOHNSON, 62 P.(2D) 1037, 1044; BEELAND
WHOLESALE GROCERY CO. V. KAUFMAN (ALA.), 174 SO. 516.  "THE
CONSTITUTIONAL POWER TO LEVY TAXES DOES NOT DEPEND UPON THE ENJOYMENT
BY THE TAXPAYER OF ANY SPECIAL BENEFIT FROM THE USE OF THE PROCEEDS
RAISED BY TAXATION."  NASHVILLE, C. & ST. L. RY. V. WALLACE, 288 U.S.
249, 268; CARLEY & HAMILTON V. SNOOK, 281 U.S. 66; KNIGHTS V. JACKSON,
260 U.S. 12, 15. 

TITLES II AND VIII DO NOT, WHEN CONSIDERED TOGETHER, CONSTITUTE A
REGULATORY SCHEME.  THE ACT DOES NOT REQUIRE RETIREMENT FROM EMPLOYMENT
AND HAS NO TENDENCY TO INDUCE IT.  IT DOES NOT CONSTITUTE A PLAN FOR
COMPULSORY INSURANCE WITHIN THE ACCEPTED MEANING OF THE TERM
"INSURANCE."  CF. LYNCH V. UNITED STATES, 292 U.S. 571, 576-577. 
WHETHER THE PLAN OF THE ACT MAY PROPERLY BE DESIGNATED AS OLD-AGE
INSURANCE IS IMMATERIAL SINCE IT INVOLVES ONLY A VALID EXERCISE OF THE
TAXING POWER AND VALID EXPENDITURES FOR THE GENERAL WELFARE WITHOUT
REGULATORY INCIDENTS.  CF. MCCULLOCH V. MARYLAND, 4 WHEAT.  315.  THERE
IS NO ENFORCED ADDITION TO WAGES, AND CONSEQUENTLY THE ACT DOES NOT
CONSTITUTE A REGULATION OF THE WAGE RELATIONSHIP.  THE TENTH AMENDMENT
HAS NO APPLICATION, SINCE CONGRESS HAS ONLY EXERCISED ITS GRANTED
POWERS.  ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 330. 
THE TAX AND EXPENDITURES ARE NOT FORBIDDEN TO THE FEDERAL GOVERNMENT
MERELY BECAUSE THE STATES THEMSELVES MIGHT LEGITIMATELY LAY SIMILAR
TAXES AND MAKE SIMILAR EXPENDITURES.  HOKE V. UNITED STATES, 227 U.S.
308, 322.  UNITED STATES V. BUTLER, 297 U.S. 1, AND RAILROAD RETIREMENT
BOARD V. ALTON R. CO., 295 U.S. 330, DISTINGUISHED. 

THE TAXES DO NOT VIOLATE THE FIFTH AMENDMENT.  NOT ONLY ARE THE
VARIOUS SELECTIONS OF EMPLOYMENTS FOR TAXATION WELL WITHIN THE POWER OF
CONGRESS (SONZINSKY V. UNITED STATES, 300 U.S. 506), BUT THEY ARE OF
THE TYPE LONG SANCTIONED. 

THE PROVISION LIMITING THE AMOUNT OF TAXABLE WAGES TO $3,000 IS
LIKEWISE VALID.  CONGRESS HAS AS FULL DISCRETION IN DETERMINING HOW FAR
IT WILL EXERCISE THE TAXING POWER AS IT HAS IN SELECTING THE SUBJECTS
FOR TAXATION.  THIS PROVISION WILL BE FOUND JUSTIFIED BY PRECEDENT AS
WELL AS BY ITS REASONABLE TENDENCY TO AVOID DOUBLE TAXATION. 

TITLE VIII IS A VALID EXERCISE OF THE POWER "TO LAY AND COLLECT
TAXES, DUTIES, IMPOSTS AND EXCISES, TO PAY THE DEBTS AND PROVIDE FOR
THE COMMON DEFENCE AND GENERAL WELFARE OF THE UNITED STATES."  CONST.,
ART. I, SEC. 8.  THE AUTHORITY SO CONFERRED "IS EXHAUSTIVE AND EMBRACES
EVERY CONCEIVABLE POWER OF TAXATION."  BRUSHABER V. UNION PAC. R. CO.,
240 U.S. 1, 12. 

1.  THE TITLE OF AN ACT AND ITS WHOLE CONTENT MAY BE EXAMINED TO SEE
THAT CONGRESS INTENDED THE IMPOSITION TO BE FOR A PARTICULAR PURPOSE,
AND NOT MERELY TO PRODUCE GENERAL REVENUE FOR THE UNITED STATES.  HILL
V. WALLACE, 259 U.S. 44; CHILD LABOR TAX CASE, 259 U.S. 20; CARTER V.
CARTER COAL CO., 298 U.S. 238(SEMBLE); UNITED STATES V. CONSTANTINE,
296 U.S. 287, 294(SEMBLE); GROSJEAN V. AMERICAN PRESS CO., 297 U.S.
233; TRUSLER V. CROOKS, 269 U.S. 475; AND UNITED STATES V. BUTLER, 297
U.S. 1. 

2.  THE IMPOSITION IS NOT AN "EXCISE" WITHIN THE MEANING OF THAT WORD
AS USED IN THE ONLY CLAUSE OF THE CONSTITUTION WHICH EMPOWERS THE
CONGRESS TO LEVY TAXES.  SEE DAVIS V. BOSTON & MAINE R.R., 89 F.(2D)
368. 

"EXCISE," IN ENGLAND AND IN THE COLONIES, FOR AT LEAST ONE HUNDRED
AND FORTY YEARS BEFORE IT WAS USED IN THE CONSTITUTION, MEANT AN INLAND
LEVY ON SELECTED TANGIBLE PROPERTY, OR UPON THE OWNERS OF IT, BECAUSE
OF THE ACTIVITY IN WHICH THE PROPERTY WAS MOVING, AS IN THE
MANUFACTURE, IN INTERMEDIATE SALE, OR IN THE ULTIMATE SALE COMMONLY
AMOUNTING TO CONSUMPTION.  THE ANTITHESIS WAS THE DIRECT TAX UPON
PROPERTY IN GENERAL, CERTAINLY LAND, WHEN TAXED ON A RATE FIXED BY ITS
STATIC APPRAISED CAPITAL VALUE, POSSIBLY WHEN MEASURED BY ITS ANNUAL
UNWROUGHT RETURN IN RENT, INCOME, OR PRODUCTS, AND, DEBATABLY, UPON
PERSONAL PROPERTY SO APPRAISED OR JUDGED.  BOTH THE DIRECT TAX AND THE
EXCISE WERE PREEMINENTLY PROPERTY TAXES,  - ONE REGARDLESS OF ITS
ACTIVITY OR INACTIVITY, AND THE OTHER TAKING THAT ACTIVITY INTO
CONSIDERATION.  IN 1766 DR. JOHNSON DEFINED "EXCISE" AS "A HATEFUL TAX
LEVIED UPON COMMODITIES, AND ADJUDGED NOT BY THE COMMON JUDGES OF
PROPERTY."  DICT.  (3D ED., 1766).  HE DEFINED "COMMODITY" AS
"INTEREST, ADVANTAGE, PROFIT, CONVENIENCE OF TIME OR PLACE, WARES,
MERCHANDISE."  ID. "COMMODITY" SUGGESTS, AS THE PRINCIPAL THOUGHT,
MERCHANDISE.  IN 1776 ADAM SMITH IN HIS "THE WEALTH OF NATIONS" SAID,
"THE DUTIES OF EXCISE ARE IMPOSED CHIEFLY UPON GOODS OF HOME PRODUCE
DESTINED FOR HOME CONSUMPTION.  THEY ARE IMPOSED ONLY UPON A FEW SORTS
OF GOODS OF THE MOST GENERAL USE."  IN 1780 THE MASSACHUSETTS
CONSTITUTION INDICATED DIRECT TAXES TO BE THE NORMAL SOURCE OF REVENUE,
BUT GAVE THE LEGISLATURE AUTHORITY TO IMPOSE "REASONABLE DUTIES AND
EXCISES, UPON ANY PRODUCE, GOODS, WARES, MERCHANDISE, AND COMMODITIES,
WHATSOEVER."  IN 1788 THE CONSTITUTIONAL CONVENTION OF NEW YORK URGED
AN AMENDMENT TO THE CONSTITUTION "THAT THE CONGRESS DO NOT IMPOSE ANY
EXCISE ON ANY ARTICLE (ARDENT SPIRITS EXCEPTED) OF THE GROWTH,
PRODUCTION, OR MANUFACTURE OF THE UNITED STATES, OR ANY OF THEM."  1
ELLIOT'S DEBATES 72; LUTHER MARTIN SAID "BY THE POWER TO LAY EXCISES, -
A POWER VERY ODIOUS IN ITS NATURE, SINCE IT AUTHORIZES OFFICERS TO GO
INTO YOUR HOUSES, YOUR KITCHENS, YOUR CELLARS, AND TO EXAMINE INTO YOUR
PRIVATE CONCERNS,  - THE CONGRESS MAY IMPOSE DUTIES ON EVERY ARTICLE OF
USE OR CONSUMPTION, ON THE FOOD THAT WE EAT, ON THE LIQUORS THAT WE
DRINK, ON THE CLOTHES THAT WE WEAR, THE GLASS WHICH ENLIGHTENS OUR
HOUSES, OR THE HEARTHS NECESSARY FOR OUR WARMTH AND COMFORT."  CF.
CHANCELLOR LIVINGSTON IN THE NEW YORK CONVENTION, 2 ID. 341; NICHOLAS
IN THE VIRGINIA CONVENTION, 3 ID. 243; ALSO 5 ID. 40; HAMILTON,
FEDERALIST, NO. 21, P. 182; ELLSWORTH, CONNECTICUT CONVENTION, 2 ELLIOT
192; WRITINGS OF GALLATIN, P. 73. 

SEE ALSO:  HIST. OF ENGLAND, 5 HUME, ED. 1861, P. 269; CLARENDON, THE
HIST. OF REBELLION IN ENGLAND, VOL. II, P. 453; 1 BLACKSTONE COMM. 308;
AND ENCY.  BRIT.  THIRD ED. 1797; BRITISH EXCISE ACT, MARCH 28, 1643;
JANUARY, 1644.  THE TAX LAID BY THE REVENUE ACT OF 1777(17 GEO. III, C.
39) OF ONE SHILLING PER ANNUM FOR EVERY MALE SERVANT OF THE KINDS
DESCRIBED WAS A LUXURY TAX LIKE THE WINDOW TAX. 

EXCISES IN NEW YORK BEFORE 1788:  SEE "THE COLONIAL LAWS OF NEW YORK
FROM THE YEAR 1644 TO THE REVOLUTION, TRANSMITTED TO THE LEGISLATURE BY
THE COMMISSIONERS OF STATUTORY REVISION, PURSUANT TO CHAPTER 125 OF THE
LAWS OF 1891," VOL. I, PP. 248, 789; VOL. IV, ID. 1, 105; LAWS OF NEW
YORK, 1775 TO 1788, VOL. I, PP. 109, 660.  IN PENNSYLVANIA:  IX STAT.
AT L. 1776-1799, P. 55.  IN MASSACHUSETTS:  1646, PLYMOUTH COLONY LAW,
1836, P. 85; JUNE 24, 1692, ACTS AND RESOLVES OF THE PROVINCE OF
MASSACHUSETTS BAY, VOL. 1, C. 5, P. 32; I. ID. 57, 272, 391, 475, 527,
662, 738; II. ID. 203, 849; III.  ID. 495, 568, 750; IV.  ID. 219; ACTS
OF NOV. 1, 1781, C. 17, I. LAWS OF MASS. 60; 1782, 1783; I. ID. 62, 78,
85; LAWS AND RESOLVES OF 1782, C. 33, P. 92. 

HISTORICALLY, AN EXCISE WAS IN CHARACTER AN INLAND DUTY OR IMPOST ON
A TANGIBLE COMMODITY IN MANUFACTURE OR IN SALE EITHER IN THE COURSE OF
TRADE OR FOR CONSUMPTION.  IT WAS NOT "CUT OUT" OF THE ACTIVITY, BUT
OUT OF THE GOODS.    IT IS INCONCEIVABLE THAT THE PEOPLE OF THE
THIRTEEN STATES COULD HAVE UNDERSTOOD THAT THE WORD "EXCISE" INCLUDED
AN IMPOSITION ON THE STATE OF BEING OF EXERCISING THE UNIVERSAL NATURAL
RIGHT TO EMPLOY, FOR WAGES, OTHER MEN WHO CONSENTED TO THAT EMPLOYMENT,
IN A MANNER NOT INJURIOUS TO THE PUBLIC GOOD. 

SUPPORTERS OF THIS TAX HAVE URGED THAT IT IS A TAX UPON PRIVILEGE. 
THERE IS NO PRIVILEGE.  THE STATE OF BEING ON WHICH THE IMPOSITION IS
MADE IS NOT DERIVED FROM GOVERNMENT OR FROM PUBLIC AUTHORITY IN ANY
MANNER.  PRIVILEGE CONTRASTS WITH COMMON NATURAL OPPORTUNITY.  CONTRAST
THE PRIVILEGE TO DO BUSINESS WITHOUT LIABILITY FOR DEBTS, AS IN
CORPORATE FORM.  ANY DICTIONARY OF THE COMMON MEANINGS WILL SHOW THAT
"PRIVILEGE" AS USED IN THIS CONTEXT MEANS SOMETHING NOT OF COMMON
RIGHT. 

UNDOUBTEDLY PROPERTIES OF MODERN TIMES - AS, FOR EXAMPLE, AUTOMOBILES
- NEVER THOUGHT OF IN 1788, MAY COME WITHIN THE MEANING OF THE WORD
"EXCISE" IN 1788.  BUT, IF THE STATE OF BEING, OF HAVING INDIVIDUALS IN
A MAN'S EMPLOY,  - A THING OF CHARACTER WHICH EXISTED IN 1788,  - DID
NOT THEN COME WITHIN THE MEANING OF THE WORD, IT IS NOT THERE NOW. 

AN ATTEMPTED ACT MAY BE CLEARLY WITHOUT THE POWERS OF THE CONGRESS,
AND A PARTICULAR LITIGANT NEVERTHELESS MAY HAVE NO RIGHT TO INVOKE THE
JUDGMENT OF THIS COURT.  MASSACHUSETTS V. MELLON, 262 U.S. 447; FLORIDA
V. MELLON, 273 U.S. 12.  CONSEQUENTLY, THE FACT THAT THE VALIDITY OF
APPROPRIATION OF THE MONEY OF THE UNITED STATES IN QUESTIONABLE WAYS
HAS NOT BEEN QUESTIONED BEFORE THIS COURT, CARRIES NO IMPLICATION THAT
THE APPROPRIATIONS WERE LAWFUL, OR APPROVED BY THE PEOPLE. 

IT IS ONLY IN THE LAST TWENTY YEARS THAT INLAND TAXES OF THE UNITED
STATES HAVE BECOME SO BURDENSOME THAT IT HAS BEEN WORTH THE EXTENSIVE
EFFORT OF MANY PEOPLE TO PREVENT UNLAWFUL APPROPRIATIONS. 

A PERSON IN TERMS OBLIGED BY AN ATTEMPTED INVALID ACT TO PAY MONEY TO
GO INTO THE TREASURY OF THE UNITED STATES, HAS A RIGHT TO A DECISION. 
UNITED STATES V. BUTLER, 297 U.S. 1. 

AN IMPOSITION ON A PARTICULAR CLASS OF TANGIBLE PROPERTY, IN
MANUFACTURE, USE, GIFT, BEQUEST, OR SALE, MAY BE SUSTAINED AS AN EXCISE
IF IT MEETS THE OTHER CONSTITUTIONAL REQUIREMENTS, INCLUDING THAT THE
END IS TO PROVIDE REVENUE FOR THE GENERAL WELFARE OF THE FEDERAL
GOVERNMENT AND THAT THE SELECTION IS NOT CAPRICIOUS OR VIOLATIVE OF THE
RULE OF UNIFORMITY.  MAGNANO V. HAMILTON, 292 U.S. 40; BROMLEY V.
MCCAUGHN, 280 U.S. 124; N.Y. TRUST CO. V. EISNER, 256 U.S. 345;
BILLINGS V. UNITED STATES, 232 U.S. 261; MCCRAY V. UNITED STATES, 195
U.S. 27; THOMAS V. UNITED STATES, 192 U.S. 363; CORNELL V. COYNE, 192
U.S. 418; SPRECKELS SUGAR CO. V. MCCLAIN, 192 U.S. 397; PATTON V.
BRADY, 184 U.S. 608; TREAT V. WHITE, 181 U.S. 264; KNOWLTON V. MOORE,
178 U.S. 41, 84; NICOL V. AMES, 173 U.S. 609; SPRINGER V. UNITED
STATES, 102 U.S. 586; RAILROAD CO. V. COLLECTOR, 100 U.S. 595; SCHOLEY
V. REW, 23 WALL.  331; VEAZIE BANK V. FENNO, 8 WALL.  533; PACIFIC INS.
CO. V. SOULE, 7 WALL.  433; LICENSE CASES, 5 WALL.  462; HYLTON V.
UNITED STATES, 3 DALL.  171.  IMPORTANT DOCUMENTS, AND PAPER,
PARTICULARLY COMMERCIAL PAPER, ARE TANGIBLE AND VALUABLE BECAUSE OF
THAT FACT.  PATTON V. BRADY, 184 U.S. 608, 617; COOK V. PENNSYLVANIA,
97 U.S. 566.  IN AT LEAST ONE CASE THIS COURT HAS HELD THAT A FRANCHISE
IS A SUFFICIENTLY PALPABLE KIND OF PROPERTY TO PERMIT AN EXCISE IN
RESPECT OF IT, FLINT V. STONE TRACY CO., 220 U.S. 107, 155, 162; BUT IT
HAS NEVER HELD THAT THE NATURAL, HARMLESS, STATE OF BEING, OR NATURAL,
HARMLESS CONDUCT PRIVILEGED OR UNPRIVILEGED, IS SUBJECT TO EXCISE. 

SEE:  OPINIONS OF THE JUSTICES, 282 MASS. 219; 266 MASS. 592, 595;
196 MASS. 624. 

PROPERTY MAY NOT BE TAKEN BY GOVERNMENT FROM ONE FOR ANOTHER, EVEN
FOR PUBLIC ADVANTAGE OR WELFARE, WITHOUT JUST COMPENSATION, LOUISVILLE
BANK V. RADFORD, 295 U.S. 555, 601, 602; UNITED STATES V. BUTLER, 297
U.S. 1; RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330; AND IT
MAKES NO DIFFERENCE THAT IT IS DONE UNDER THE GUISE OF A TAX OR IS THE
PRODUCT OF A TAX, LOAN ASSOCIATION V. TOPEKA, 20 WALL.  655; CALDER V.
BULL, 3 DALL.  386; MILES PLANTING CO. V. CARLISLE, 5 APP. D.C. 138,
146. 

EVEN IF A TAX IS LEVIED EXPRESSLY FOR THE PURPOSE OF OBTAINING
GENERAL REVENUE, WHEN IT APPEARS, "IN THE LIGHT OF ITS HISTORY AND OF
ITS PRESENT SETTING," THAT IT IS FOR A PURPOSE WHICH THE CONSTITUTION
DOES NOT PERMIT THE LAWMAKING BODY TO ACCOMPLISH, THE TAX IS INVALID. 
GROSJEAN V. AMERICAN PRESS CO., INC., 297 U.S. 233, 250. 
DISTINGUISHING SPRECKELS SUGAR REF. CO. V. MCCLAIN, 192 U.S. 397. 

3.  IN TESTING THE VALIDITY OF THE LEVY ATTEMPTED IN SECS. 804 AND
802, AN UNCHANGING DECISION MUST BE MADE FOR ALL PURPOSES, AS TO
WHETHER THE LEVY IS FOR GENERAL REVENUE ONLY OR IS FOR OLD AGE BENEFITS
SUCH AS ARE DESCRIBED IN TITLE II.  THE LEVY SHOULD NOT BE DEEMED TO BE
FOR SUCH BENEFITS AT ONE STAGE OF ARGUMENT IN ORDER TO MEET THE CHARGE
OF CAPRICIOUSNESS, AND FOR GENERAL REVENUE AT ANOTHER STAGE IN ORDER TO
MEET THE CHARGE OF ABSENCE OF FEDERAL PURPOSE. 

4.  WHETHER FOR GENERAL REVENUE OR NOT, THE ATTEMPTED LEVY IS SO
CAPRICIOUS AND SO LACKING IN UNIFORMITY AS NOT TO BE IN CHARACTER A
TAX.  IF THE PURPOSE IS GENERAL REVENUE, THERE IS NO BASIS IN REASON
FOR SELECTING CERTAIN FAULTLESS EMPLOYERS TO BEAR THE ENTIRE BURDEN AND
THEREBY RELIEVE WEALTH GENERALLY FROM TAXATION TO FURNISH THE REVENUE. 
IF THE PURPOSE IS OLD-AGE BENEFITS, THERE IS NO MORE REASON FOR
SHIFTING THE BURDEN OF A TAX ON WEALTH TO THE SHOULDERS OF POSSIBLY
POOR EMPLOYERS WHO ARE NOT THE CAUSE OF THE OLD AGE.  THERE IS NO
ATTEMPT TO COVER ALL IN THE SAME CLASS.  IF MEN OVER SIXTY-FIVE YEARS
OF AGE OUGHT TO HAVE AN ANNUITY OR OLD-AGE BENEFIT, IT SHOULD BE ON
ACCOUNT OF THAT FACT, NOT BECAUSE OF THE TYPE OF EMPLOYMENT IN WHICH
THEY HAVE BEEN ENGAGED, AND IF EMPLOYERS OUGHT TO PAY AN EXCISE FOR THE
STATE OF BEING OF HAVING EMPLOYEES, THEY OUGHT TO PAY IT WHEN THEY HAVE
THAT STATE OF BEING.  IT IS THE KNOWN FACT THAT IMPOSITION UPON NON
AGRICULTURAL LABOR IS EQUIVALENT TO CONFINING THE IMPOSITION TO CERTAIN
STATES TO THE APPROXIMATELY COMPLETE EXCLUSION OF OTHER STATES.  IT IS
CAPRICIOUS TO DENY THE "OVER-SIXTY-FIVE" BENEFITS TO FARM LABORERS, AND
TO RELIEVE THEIR EMPLOYERS FROM AN IMPOSITION PLACED ON OTHER
EMPLOYERS. 

ONLY 56%, OR LESS, OF THE GAINFUL WORKERS IN THE UNITED STATES ARE
POTENTIALLY TO BE BENEFITED.  THE EMPLOYERS OF ONLY THIS 56%, (OR
LESS), ARE SUBJECTED TO THE IMPOSITION. 

THE EMPLOYERS OF THE 56% BEAR NOT ONLY THE BURDEN OF CARING BY SO
MUCH FOR THE AGED AMONG THE 56%, BUT ALSO THE BURDEN OF THEIR SHARE OF
TAXES TO MEET THE PUBLIC EXPENSE FOR POOR RELIEF AND ASSISTANCE TO THE
REMAINING 44%, AND OF THE UNPROVIDED FOR BALANCE OF THE 56%. 

SENATE REPORT NO. 628, (74TH CONGRESS, 1ST SESS. 1935) INDICATES THAT
WHEN THE IMPOSITIONS UNDER TITLES VIII AND IX ARE IN FULL SWAY, SO THAT
9% ON THE PAY ROLLS MUST BE PAID, THE IMPOSITION IS EQUIVALENT TO A
GENERAL SALES TAX OF 3%.  AS THE TAX IS ON EMPLOYERS IN TRADE AS WELL
AS IN INDUSTRY, (EXCEPT IN THE CASE OF IMPORTED MERCHANDISE SOLD), THEY
ARE TAXED TWICE.  THE EMPLOYERS IN THE PRODUCTION AND TRADE IN DOMESTIC
INDUSTRY IN THIS WAY PAY TWO TAXES INEVITABLY; AND WHERE THE PRODUCTS
PASS THROUGH BOTH WHOLESALE AND RETAIL TRADE, THREE TAXES.  WHAT PASSES
FROM WHOLESALE TRADE INTO THE HANDS OF THE MANUFACTURERS, AS THE RAW
MATERIAL OF THOSE MANUFACTURERS, CALLS FOR ANOTHER PAYMENT.  IT IS
BEYOND THE POSSIBILITY OF ACCURATE MATHEMATICAL STATEMENT.  IN MANY
CASES THE LEVY CANNOT BE PASSED ON WITHOUT THE DESTRUCTION OF THE
TRADE; AND IF NOT PASSED ON, THE EMPLOYER INEVITABLY MEETS FINANCIAL
RUIN WHEN SUBJECTED TO SUCH A HUGE TAX. 

IF GAINFUL WORKERS OUGHT TO HAVE AN ANNUITY AFTER AGE SIXTY-FIVE, SO
SHOULD ALL OTHER PERSONS.  THERE IS NO REASON FOR FAVORING THOSE WHO
HAVE BEEN ABLE TO GET AND PERFORM WORK, TO THE EXCLUSION OF THOSE WHO
HAVE NOT.  THE NUMBER OF WORKERS POTENTIALLY TO BENEFIT AND
PREFERENTIALLY TREATED IS LESS THAN 22% OF THE POPULATION. 

CAPRICIOUS SELECTION OF CLASS OF PROPERTY, CLASS OF PERSONS, OR RATE
GRADATION, CONVERTS AN ATTEMPTED EXCISE INTO A NONUNIFORM CONFISCATION,
WITHOUT TAX CHARACTER.  GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233,
251; COLGATE V. HARVEY, 296 U.S. 404, 422, 424; CONCORDIA FIRE INS. CO.
V. ILLINOIS, 292 U.S. 535; STEBBINS V. RILEY, 268 U.S. 137; LOUISVILLE
GAS CO. V. COLEMAN, 277 U.S. 32; SCHLESINGER V. WISCONSIN, 270 U.S.
230; BROMLEY V. MCCAUGHN, 280 U.S. 124, 139; MAYFLOWER FARMS V. TEN
EYCK, 297 U.S. 266, 272(SEMBLE) OF A REGULATION; IN RE OPINION OF THE
JUSTICES, 85 N.H. 562, (SEMBLE).  CF. BRUSHABER V. UNION PACIFIC R.
CO., 240 U.S. 1, 24. 

5.  TO PROVIDE OLD AGE BENEFITS SUCH AS ARE DESCRIBED IN TITLE II IS
NOT A PURPOSE FOR WHICH THE CONGRESS HAS POWER TO TAX.  SUCH A PURPOSE
IS NOT FOR THE COMMON DEFENSE, OR TO PAY THE DEBTS OF, OR TO PROVIDE
FOR THE GENERAL WELFARE OF, THE GOVERNMENT. 

APART FROM TAXES TO PAY THE DEBTS AND PROVIDE FOR THE COMMON DEFENSE
OF THE GOVERNMENT, NO TAX BY CONGRESS IS AUTHORIZED UNLESS IT IS TO
PROVIDE FOR THE GENERAL WELFARE OF THE GOVERNMENT OF THE UNITED
STATES.  THE LIMITS UPON THE TAXING POWER ARE NOT SET BY "WELFARE"
ONLY, BUT BY THE LIMITS UPON THE KIND OF WELFARE FOR WHICH THE TAX MAY
BE LEVIED.  IT MUST BE THE LIMITED KIND OF WELFARE WHICH IS "GENERAL,"
AND IT MUST BE THE LIMITED KIND OF WELFARE WHICH IS "OF THE UNITED
STATES."  IN THIS LIMITATION, "OF THE UNITED STATES" EVIDENTLY IS USED
IN THE SENSE OF GOVERNMENT OF THE UNITED STATES.  IT IS NOT TO BE
SUPPOSED THAT A CONSTITUTION WOULD GRANT TO CONGRESS A POWER TO TAX TO
PROVIDE REVENUE FOR THE GENERAL WELFARE OF THE TERRITORY OF THE UNITED
STATES WHEN THAT CONGRESS HAD BEEN GIVEN NO POWER TO LEGISLATE FOR THE
GENERAL WELFARE OF THAT TERRITORY.  THE WORDS "GENERAL" AND "OF THE
UNITED STATES" ARE WORDS OF RESTRICTION UPON THE KIND OF WELFARE TO
PROVIDE REVENUE FOR WHICH CONGRESS MAY LEVY A TAX.  THEY STAND OPPOSITE
TO THE RESTRICTIONS OF "STATE" OR "LOCAL" IN DEFINING THE WELFARE FOR
WHICH A STATE MAY LEVY A TAX. 

AS FAR AS IT MAY BE DONE BY LEGISLATION, THE CONTROL OF THE RELATION
BETWEEN EMPLOYER AND EMPLOYEE, THE RATE OF WAGES, THE WITHHOLDING OF
WAGES TO BUILD RESERVES, THE INSURANCE AGAINST ACCIDENTS, THE MAKING OF
RESERVES FOR THE EMPLOYEE WHEN HE NO LONGER, OR NOT FOR A TIME, CAN
EARN WAGES, IS FOR THE LEGISLATURE OF THE STATE. 

THE SUPPORT OF MEN AND WOMEN WHO HAVE COME TO BE SIXTY-FIVE YEARS OLD
IN THE RESPECTIVE STATES, OR WHO CANNOT GET EMPLOYMENT, IS NO MORE FOR
THE GENERAL WELFARE OF THE GOVERNMENT OF THE UNITED STATES THAN IS THE
KEEPING OF THE CITIZENRY OF THE UNITED STATES FROM BECOMING DRUG
ADDICTS, AND THEREBY LIKELY TO BE UNABLE TO EARN A LIVING OR TO FIGHT
FOR THE UNITED STATES, OR TO VOTE INTELLIGENTLY FOR A PRESIDENT OR
SENATORS AND REPRESENTATIVES.  CF. LINDER V. UNITED STATES, 268 U.S. 5,
17; UNITED STATES V. DOREMUS, 249 U.S. 86, 95; UNITED STATES V. JIN
FUEY MOY, 241 U.S. 394, 401.  LOCAL COMMERCIAL ACTIVITIES AND
EMPLOYMENT RELATIONS COMPLETED WHOLLY WITHIN A STATE, HOWSOEVER COMMON
THEY MAY BE IN EVERY STATE, ARE NOT A PART OF THE GENERAL WELFARE OF
THE GOVERNMENT OF THE UNITED STATES.  SCHECHTER POULTRY CORP. V. UNITED
STATES, 295 U.S. 495; UNITED STATES V. BUTLER, 297 U.S. 1; RAILROAD
RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330(A FORTIORI); CHILD LABOR
TAX CASE, 259 U.S. 20; HILL V. WALLACE, 259 U.S. 44; HAMMER V.
DAGENHART, 247 U.S. 251.  CF. REMARKS OF HUGHES, C.J., IN CARTER V.
CARTER COAL CO., 298 U.S. 238, 317. 

THE STATE WHERE THIS LOCAL EMPLOYMENT OCCURS MAY DEEM IT WISER TO
REGULATE THE RELATION IN A DIFFERENT WAY, TO PROVIDE A SMALLER ANNUITY
WITH A SMALLER COMPULSORY CONTRIBUTION, OR NONE AT ALL.  THE SAME THING
CANNOT BE DONE BY CONGRESS AND BY THE STATE LEGISLATURE.  IF IT IS A
SUBJECT FOR LEGISLATIVE REGULATION AT ALL, THE TENTH AMENDMENT SAYS
THAT IT IS TO BE REGULATED BY THE STATE LEGISLATURE, AND NOT BY
CONGRESS.  CF. CHAMBERLIN V. ANDREWS, 299 U.S. 515; COLLECTOR V. DAY,
11 WALL.  113. 

IMPOSITIONS FOR OLD-AGE BENEFITS DO NOT DIFFER IN THIS RESPECT FROM
THOSE FOR UNEMPLOYMENT BENEFITS.  THE PARTICULAR LIMIT TO "GENERAL
WELFARE," AS TO WHICH HAMILTON AND MADISON DIFFERED, AND MONROE
VACILLATED, IS NOT INVOLVED.  NONE OF THEM SUGGESTED THAT ANY SUCH
REGULATIONS OF EMPLOYMENT OBLIGATIONS AND RELATIONS WITHIN A STATE COME
WITHIN THIS PHRASE.  NONE OF THEM, IT SEEMS, WOULD HAVE SUPPORTED A
POWER IN CONGRESS TO COMPEL EMPLOYERS AND EMPLOYEES IN PURELY LOCAL
EMPLOYMENT TO CONTRIBUTE TO A FUND FOR OLD-AGE ANNUITIES FOR OTHERS. 
CF. VETO MESSAGES OF PRESIDENTS JACKSON, MAY 27, 1830, 2 RICHARDSON,
483, 492, 639; BUCHANAN, FEBRUARY 24, 1859, 5 ID. 547; CLEVELAND IN
1887, 8 ID. 557. 

6.  IN FACT AND IN LAW, IN THE SECTIONS 804 AND 802 UNDER
CONSIDERATION, THIS IS NOT A TAXING STATUTE, BUT AN UNCONSTITUTIONAL
ATTEMPT TO REGULATE THE WAGE RELATION WITHIN THE SEVERAL STATES.  WEST
COAST HOTEL CO. V. PARRISH, 300 U.S. 379; ATTORNEY-GENERAL FOR CANADA
V. ATTORNEY GENERAL FOR ONTARIO, (1937) A.C. 355, AFFIRMING (1936)
CAN.  S.C.R. 427. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

THE SOCIAL SECURITY ACT (ACT OF AUGUST 14, 1935, C. 531, 49 STAT.
620, 42 U.S.C., C. 7, (SUPP.)) IS CHALLENGED ONCE AGAIN. 

IN STEWARD MACHINE CO. V. DAVIS, DECIDED THIS DAY, ANTE, P. 548, WE
HAVE UPHELD THE VALIDITY OF TITLE IX OF THE ACT, IMPOSING AN EXCISE
UPON EMPLOYERS OF EIGHT OR MORE.  IN THIS CASE TITLES VIII AND II ARE
THE SUBJECT OF ATTACK.  TITLE VIII LAYS ANOTHER EXCISE UPON EMPLOYERS
IN ADDITION TO THE ONE IMPOSED BY TITLE IX (THOUGH WITH DIFFERENT
EXEMPTIONS).  IT LAYS A SPECIAL INCOME TAX UPON EMPLOYEES TO BE
DEDUCTED FROM THEIR WAGES AND PAID BY THE EMPLOYERS.  TITLE II PROVIDES
FOR THE PAYMENT OF OLD AGE BENEFITS, AND SUPPLIES THE MOTIVE AND
OCCASION, IN THE VIEW OF THE ASSAILANTS OF THE STATUTE, FOR THE LEVY OF
THE TAXES IMPOSED BY TITLE VIII.  THE PLAN OF THE TWO TITLES WILL NOW
BE SUMMARIZED MORE FULLY.    TITLE VIII, AS WE HAVE SAID, LAYS TWO
DIFFERENT TYPES OF TAX, AN "INCOME TAX ON EMPLOYEES," AND "AN EXCISE
TAX ON EMPLOYERS."  THE INCOME TAX ON EMPLOYEES IS MEASURED BY WAGES
PAID DURING THE CALENDAR YEAR.  SEC. 801.  THE EXCISE TAX ON THE
EMPLOYER IS TO BE PAID "WITH RESPECT TO HAVING INDIVIDUALS IN HIS
EMPLOY," AND, LIKE THE TAX ON EMPLOYEES, IS MEASURED BY WAGES.  SEC.
804.  NEITHER TAX IS APPLICABLE TO CERTAIN TYPES OF EMPLOYMENT, SUCH AS
AGRICULTURAL LABOR, DOMESTIC SERVICE, SERVICE FOR THE NATIONAL OR STATE
GOVERNMENTS, AND SERVICE PERFORMED BY PERSONS WHO HAVE ATTAINED THE AGE
OF 65 YEARS.  SEC. 811(B).  THE TWO TAXES ARE AT THE SAME RATE.  SECS.
801, 804.  FOR THE YEARS 1937 TO 1939, INCLUSIVE, THE RATE FOR EACH TAX
IS FIXED AT ONE PER CENT.  THEREAFTER THE RATE INCREASES 1/2 OF 1 PER
CENT EVERY THREE YEARS, UNTIL AFTER DECEMBER 31, 1948, THE RATE FOR
EACH TAX REACHES 3 PER CENT.  IBID.  IN THE COMPUTATION OF WAGES ALL
REMUNERATION IS TO BE INCLUDED EXCEPT SO MUCH AS IS IN EXCESS OF $3,000
DURING THE CALENDAR YEAR AFFECTED.  SEC. 811(A).  THE INCOME TAX ON
EMPLOYEES IS TO BE COLLECTED BY THE EMPLOYER, WHO IS TO DEDUCT THE
AMOUNT FROM THE WAGES "AS AND WHEN PAID."  SEC. 802(A).  HE IS
INDEMNIFIED AGAINST CLAIMS AND DEMANDS OF ANY PERSON BY REASON OF SUCH
PAYMENT.  IBID.  THE PROCEEDS OF BOTH TAXES ARE TO BE PAID INTO THE
TREASURY LIKE INTERNAL-REVENUE TAXES GENERALLY, AND ARE NOT EARMARKED
IN ANY WAY.  SEC. 807(A).  THERE ARE PENALTIES FOR NON-PAYMENT.  SEC.
807(C). 

TITLE II HAS THE CAPTION "FEDERAL OLD-AGE BENEFITS."  THE BENEFITS
ARE OF TWO TYPES, FIRST, MONTHLY PENSIONS, AND SECOND, LUMP SUM
PAYMENTS, THE PAYMENTS OF THE SECOND CLASS BEING RELATIVELY FEW AND
UNIMPORTANT. 

THE FIRST SECTION OF THIS TITLE CREATES AN ACCOUNT IN THE UNITED
STATES TREASURY TO BE KNOWN AS THE "OLD-AGE RESERVE ACCOUNT."  SEC.
201.  NO PRESENT APPROPRIATION, HOWEVER, IS MADE TO THAT ACCOUNT.  ALL
THAT THE STATUTE DOES IS TO AUTHORIZE APPROPRIATIONS ANNUALLY
THEREAFTER, BEGINNING WITH THE FISCAL YEAR WHICH ENDS JUNE 30, 1937. 
HOW LARGE THEY SHALL BE IS NOT KNOWN IN ADVANCE.  THE "AMOUNT
SUFFICIENT AS AN ANNUAL PREMIUM" TO PROVIDE FOR THE REQUIRED PAYMENTS
IS "TO BE DETERMINED ON A RESERVE BASIS IN ACCORDANCE WITH ACCEPTED
ACTUARIAL PRINCIPLES, AND BASED UPON SUCH TABLES OF MORTALITY AS THE
SECRETARY OF THE TREASURY SHALL FROM TIME TO TIME ADOPT, AND UPON AN
INTEREST RATE OF 3 PER CENTUM PER ANNUM COMPOUNDED ANNUALLY."  SEC.
201(A).  NOT A DOLLAR GOES INTO THE ACCOUNT BY FORCE OF THE CHALLENGED
ACT ALONE, UNAIDED BY ACTS TO FOLLOW. 

PRINCIPAL TYPE IS A MONTHLY PENSION PAYABLE TO A PERSON AFTER HE HAS
ATTAINED THE AGE OF 65.  THIS BENEFIT IS AVAILABLE ONLY TO ONE WHO HAS
WORKED FOR AT LEAST ONE DAY IN EACH OF AT LEAST FIVE SEPARATE YEARS
SINCE DECEMBER 31, 1936, WHO HAS EARNED AT LEAST $2,000 SINCE THAT
DATE, AND WHO IS NOT THEN RECEIVING WAGES "WITH RESPECT TO REGULAR
EMPLOYMENT."  SECS. 202(A), (D), 210(C).  THE BENEFITS ARE NOT TO BEGIN
BEFORE JANUARY 1, 1942.  SEC. 202(A).  IN NO EVENT ARE THEY TO EXCEED
$85 A MONTH.  SEC. 202(B).  THEY ARE TO BE MEASURED (SUBJECT TO THAT
LIMIT) BY A PERCENTAGE OF THE WAGES, THE PERCENTAGE DECREASING AT
STATED INTERVALS AS THE WAGES BECOME HIGHER.  SEC. 202(A).  IN ADDITION
TO THE MONTHLY BENEFITS, PROVISION IS MADE IN CERTAIN CONTINGENCIES FOR
"LUMP SUM PAYMENTS" OF SECONDARY IMPORTANCE.  A SUMMARY BY THE
GOVERNMENT OF THE FOUR SITUATIONS CALLING FOR SUCH PAYMENTS IS PRINTED
IN THE MARGIN.  FN1 

THIS SUIT IS BROUGHT BY A SHAREHOLDER OF THE EDISON ELECTRIC
ILLUMINATING COMPANY OF BOSTON, A MASSACHUSETTS CORPORATION, TO
RESTRAIN THE CORPORATION FROM MAKING THE PAYMENTS AND DEDUCTIONS CALLED
FOR BY THE ACT, WHICH IS STATED TO BE VOID UNDER THE CONSTITUTION OF
THE UNITED STATES.  THE BILL TELLS US THAT THE CORPORATION HAS DECIDED
TO OBEY THE STATUTE, THAT IT HAS REACHED THIS DECISION IN THE FACE OF
THE COMPLAINANT'S PROTESTS, AND THAT IT WILL MAKE THE PAYMENTS AND
DEDUCTIONS UNLESS RESTRAINED BY A DECREE.  THE EXPECTED CONSEQUENCES
ARE INDICATED SUBSTANTIALLY AS FOLLOWS:  THE DEDUCTIONS FROM THE WAGES
OF THE EMPLOYEES WILL PRODUCE UNREST AMONG THEM, AND WILL BE FOLLOWED,
IT IS PREDICTED, BY DEMANDS THAT WAGES BE INCREASED.  IF THE EXACTIONS
SHALL ULTIMATELY BE HELD VOID, THE COMPANY WILL HAVE PARTED WITH MONEYS
WHICH AS A PRACTICAL MATTER IT WILL BE IMPOSSIBLE TO RECOVER.  NOTHING
IS SAID IN THE BILL ABOUT THE PROMISE OF INDEMNITY.  THE PREDICTION IS
MADE ALSO THAT SERIOUS CONSEQUENCES WILL ENSUE IF THERE IS A SUBMISSION
TO THE EXCISE.  THE CORPORATION AND ITS SHAREHOLDERS WILL SUFFER
IRREPARABLE LOSS, AND MANY THOUSANDS OF DOLLARS WILL BE SUBTRACTED FROM
THE VALUE OF THE SHARES.  THE PRAYER IS FOR AN INJUNCTION AND FOR A
DECLARATION THAT THE ACT IS VOID. 

THE CORPORATION APPEARED AND ANSWERED WITHOUT RAISING ANY ISSUE OF
FACT.  LATER THE UNITED STATES COMMISSIONER OF INTERNAL REVENUE AND THE
UNITED STATES COLLECTOR FOR THE DISTRICT OF MASSACHUSETTS, PETITIONERS
IN THIS COURT, WERE ALLOWED TO INTERVENE.  THEY MOVED TO STRIKE SO MUCH
OF THE BILL AS HAS RELATION TO THE TAX ON EMPLOYEES, TAKING THE GROUND
THAT THE EMPLOYER, NOT BEING SUBJECT TO TAX UNDER THOSE PROVISIONS, MAY
NOT CHALLENGE THEIR VALIDITY, AND THAT THE COMPLAINANT SHAREHOLDER,
WHOSE RIGHTS ARE NO GREATER THAN THOSE OF HIS CORPORATION, HAS EVEN
LESS STANDING TO BE HEARD ON SUCH A QUESTION.  THE INTERVENING
DEFENDANTS ALSO FILED AN ANSWER WHICH RESTATED THE POINT RAISED IN THE
MOTION TO STRIKE, AND MAINTAINED THE VALIDITY OF TITLE VIII IN ALL ITS
PARTS.  THE DISTRICT COURT HELD THAT THE TAX UPON EMPLOYEES WAS NOT
PROPERLY AT ISSUE, AND THAT THE TAX UPON EMPLOYERS WAS CONSTITUTIONAL. 
IT THEREUPON DENIED THE PRAYER FOR AN INJUNCTION, AND DISMISSED THE
BILL.  ON APPEAL TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT,
THE DECREE WAS REVERSED, ONE JUDGE DISSENTING.  89 F.(2D) 393.  THE
COURT HELD THAT TITLE II WAS VOID AS AN INVASION OF POWERS RESERVED BY
THE TENTH AMENDMENT TO THE STATES OR TO THE PEOPLE, AND THAT TITLE II
IN COLLAPSING CARRIED TITLE VIII ALONG WITH IT.  AS AN ADDITIONAL
REASON FOR INVALIDATING THE TAX UPON EMPLOYERS, THE COURT HELD THAT IT
WAS NOT AN EXCISE AS EXCISES WERE UNDERSTOOD WHEN THE CONSTITUTION WAS
ADOPTED.  CF. DAVIS V. BOSTON & MAINE R. CO., 89 F.(2D) 368, DECIDED
THE SAME DAY. 

A PETITION FOR CERTIORARI FOLLOWED.  IT WAS FILED BY THE INTERVENING
DEFENDANTS, THE COMMISSIONER AND THE COLLECTOR, AND BROUGHT TWO
QUESTIONS, AND TWO ONLY, TO OUR NOTICE.  WE WERE ASKED TO DETERMINE:
(1) "WHETHER THE TAX IMPOSED UPON EMPLOYERS BY SEC. 804 OF THE SOCIAL
SECURITY ACT IS WITHIN THE POWER OF CONGRESS UNDER THE CONSTITUTION,"
AND (2) "WHETHER THE VALIDITY OF THE TAX IMPOSED UPON EMPLOYEES BY SEC.
801 OF THE SOCIAL SECURITY ACT IS PROPERLY IN ISSUE IN THIS CASE, AND
IF IT IS, WHETHER THAT TAX IS WITHIN THE POWER OF CONGRESS UNDER THE
CONSTITUTION."  THE DEFENDANT CORPORATION GAVE NOTICE TO THE CLERK THAT
IT JOINED IN THE PETITION, BUT IT HAS TAKEN NO PART IN ANY SUBSEQUENT
PROCEEDINGS.  A WRIT OF CERTIORARI ISSUED. 

FIRST.  QUESTIONS AS TO THE REMEDY INVOKED BY THE COMPLAINANT
CONFRONT US AT THE OUTSET. 

WAS THE CONDUCT OF THE COMPANY IN RESOLVING TO PAY THE TAXES A
LEGITIMATE EXERCISE OF THE DISCRETION OF THE DIRECTORS?  HAS PETITIONER
A STANDING TO CHALLENGE THAT RESOLVE IN THE ABSENCE OF AN ADEQUATE
SHOWING OF IRREPARABLE INJURY?  DOES THE ACQUIESCENCE OF THE COMPANY IN
THE EQUITABLE REMEDY AFFECT THE ANSWER TO THOSE QUESTIONS?  THOUGH
POWER MAY STILL BE OURS TO TAKE SUCH OBJECTIONS FOR OURSELVES, IS
ACQUIESCENCE EFFECTIVE TO RID US OF THE DUTY?  IS DUTY MODIFIED STILL
FURTHER BY THE ATTITUDE OF THE GOVERNMENT, ITS WAIVER OF A DEFENSE
UNDER SEC. 3224 OF THE REVISED STATUTES, ITS WAIVER OF A DEFENSE THAT
THE LEGAL REMEDY IS ADEQUATE, ITS EARNEST REQUEST THAT WE DETERMINE
WHETHER THE LAW SHALL STAND OR FALL?  THE WRITER OF THIS OPINION
BELIEVES THAT THE REMEDY IS ILL CONCEIVED, THAT IN A CONTROVERSY SUCH
AS THIS A COURT MUST REFUSE TO GIVE EQUITABLE RELIEF WHEN A CAUSE OF
ACTION IN EQUITY IS NEITHER PLEADED NOR PROVED, AND THAT THE SUIT FOR
AN INJUNCTION SHOULD BE DISMISSED UPON THAT GROUND.  HE THINKS THIS
COURSE SHOULD BE FOLLOWED IN ADHERENCE TO THE GENERAL RULE THAT
CONSTITUTIONAL QUESTIONS ARE NOT TO BE DETERMINED IN THE ABSENCE OF
STRICT NECESSITY.  IN THAT VIEW HE IS SUPPORTED BY MR. JUSTICE
BRANDEIS, MR. JUSTICE STONE AND MR. JUSTICE ROBERTS.  HOWEVER, A
MAJORITY OF THE COURT HAVE REACHED A DIFFERENT CONCLUSION.  THEY FIND
IN THIS CASE EXTRAORDINARY FEATURES MAKING IT FITTING IN THEIR JUDGMENT
TO DETERMINE WHETHER THE BENEFITS AND THE TAXES ARE VALID OR INVALID. 
THEY DISTINGUISH NORMAN V. CONSOLIDATED GAS CO., 89 F.(2D) 619,
RECENTLY DECIDED BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT, ON THE
GROUND THAT IN THAT CASE, THE REMEDY WAS CHALLENGED BY THE COMPANY AND
THE GOVERNMENT AT EVERY STAGE OF THE PROCEEDING, THUS WITHDRAWING FROM
THE COURT ANY MARGINAL DISCRETION.  THE RULING OF THE MAJORITY REMOVES
FROM THE CASE THE PRELIMINARY OBJECTION AS TO THE NATURE OF THE REMEDY
WHICH WE TOOK OF OUR OWN MOTION AT THE BEGINNING OF THE ARGUMENT. 
UNDER THE COMPULSION OF THAT RULING, THE MERITS ARE NOW HERE. 

SECOND.  THE SCHEME OF BENEFITS CREATED BY THE PROVISIONS OF TITLE II
IS NOT IN CONTRAVENTION OF THE LIMITATIONS OF THE TENTH AMENDMENT. 

CONGRESS MAY SPEND MONEY IN AID OF THE "GENERAL WELFARE." 
CONSTITUTION, ART. I, SECTION 8; UNITED STATES V. BUTLER, 297 U.S. 1,
65; STEWARD MACHINE CO. V. DAVIS, SUPRA.  THERE HAVE BEEN GREAT
STATESMEN IN OUR HISTORY WHO HAVE STOOD FOR OTHER VIEWS.  WE WILL NOT
RESURRECT THE CONTEST.  IT IS NOW SETTLED BY DECISION.  UNITED STATES
V. BUTLER, SUPRA.  THE CONCEPTION OF THE SPENDING POWER ADVOCATED BY
HAMILTON AND STRONGLY REINFORCED BY STORY HAS PREVAILED OVER THAT OF
MADISON, WHICH HAS NOT BEEN LACKING IN ADHERENTS.  YET DIFFICULTIES ARE
LEFT WHEN THE POWER IS CONCEDED.  THE LINE MUST STILL BE DRAWN BETWEEN
ONE WELFARE AND ANOTHER, BETWEEN PARTICULAR AND GENERAL.  WHERE THIS
SHALL BE PLACED CANNOT BE KNOWN THROUGH A FORMULA IN ADVANCE OF THE
EVENT.  THERE IS A MIDDLE GROUND OR CERTAINLY A PENUMBRA IN WHICH
DISCRETION IS AT LARGE.  THE DISCRETION, HOWEVER, IS NOT CONFIDED TO
THE COURTS.  THE DISCRETION BELONGS TO CONGRESS, UNLESS THE CHOICE IS
CLEARLY WRONG, A DISPLAY OF ARBITRARY POWER, NOT AN EXERCISE OF
JUDGMENT.  THIS IS NOW FAMILIAR LAW.  "WHEN SUCH A CONTENTION COMES
HERE WE NATURALLY REQUIRE A SHOWING THAT BY NO REASONABLE POSSIBILITY
CAN THE CHALLENGED LEGISLATION FALL WITHIN THE WIDE RANGE OF DISCRETION
PERMITTED TO THE CONGRESS."  UNITED STATES V. BUTLER, SUPRA, P. 67. 
CF. CINCINNATI SOAP CO. V. UNITED STATES, ANTE, P. 308; UNITED STATES
V. REALTY CO., 163 U.S. 427, 440; HEAD MONEY CASES, 112 U.S. 580, 595. 
NOR IS THE CONCEPT OF THE GENERAL WELFARE STATIC.  NEEDS THAT WERE
NARROW OR PAROCHIAL A CENTURY AGO MAY BE INTERWOVEN IN OUR DAY WITH THE
WELL-BEING OF THE NATION.  WHAT IS CRITICAL OR URGENT CHANGES WITH THE
TIMES. 

THE PURGE OF NATION-WIDE CALAMITY THAT BEGAN IN 1929 HAS TAUGHT US
MANY LESSONS.  NOT THE LEAST IS THE SOLIDARITY OF INTERESTS THAT MAY
ONCE HAVE SEEMED TO BE DIVIDED.  UNEMPLOYMENT SPREADS FROM STATE TO
STATE, THE HINTERLAND NOW SETTLED THAT IN PIONEER DAYS GAVE AN AVENUE
OF ESCAPE.  HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398,
442.  SPREADING FROM STATE TO STATE, UNEMPLOYMENT IS AN ILL NOT
PARTICULAR BUT GENERAL, WHICH MAY BE CHECKED, IF CONGRESS SO
DETERMINES, BY THE RESOURCES OF THE NATION.  IF THIS CAN HAVE BEEN
DOUBTFUL UNTIL NOW, OUR RULING TODAY IN THE CASE OF THE STEWARD MACHINE
CO., SUPRA, HAS SET THE DOUBT AT REST.  BUT THE ILL IS ALL ONE, OR AT
LEAST NOT GREATLY DIFFERENT, WHETHER MEN ARE THROWN OUT OF WORK BECAUSE
THERE IS NO LONGER WORK TO DO OR BECAUSE THE DISABILITIES OF AGE MAKE
THEM INCAPABLE OF DOING IT.  RESCUE BECOMES NECESSARY IRRESPECTIVE OF
THE CAUSE.  THE HOPE BEHIND THIS STATUTE IS TO SAVE MEN AND WOMEN FROM
THE RIGORS OF THE POOR HOUSE AS WELL AS FROM THE HAUNTING FEAR THAT
SUCH A LOT AWAITS THEM WHEN JOURNEY'S END IS NEAR. 

CONGRESS DID NOT IMPROVISE A JUDGMENT WHEN IT FOUND THAT THE AWARD OF
OLD AGE BENEFITS WOULD BE CONDUCIVE TO THE GENERAL WELFARE.  THE
PRESIDENT'S COMMITTEE ON ECONOMIC SECURITY MADE AN INVESTIGATION AND
REPORT, AIDED BY A RESEARCH STAFF OF GOVERNMENT OFFICERS AND EMPLOYEES,
AND BY AN ADVISORY COUNCIL AND SEVEN OTHER ADVISORY GROUPS.  FN2
EXTENSIVE HEARINGS FOLLOWED BEFORE THE HOUSE COMMITTEE ON WAYS AND
MEANS, AND THE SENATE COMMITTEE ON FINANCE.  FN3  A GREAT MASS OF
EVIDENCE WAS BROUGHT TOGETHER SUPPORTING THE POLICY WHICH FINDS
EXPRESSION IN THE ACT.  AMONG THE RELEVANT FACTS ARE THESE:  THE NUMBER
OF PERSONS IN THE UNITED STATES 65 YEARS OF AGE OR OVER IS INCREASING
PROPORTIONATELY AS WELL AS ABSOLUTELY.  WHAT IS EVEN MORE IMPORTANT THE
NUMBER OF SUCH PERSONS UNABLE TO TAKE CARE OF THEMSELVES IS GROWING AT
A THREATENING PACE.  MORE AND MORE OUR POPULATION IS BECOMING URBAN AND
INDUSTRIAL INSTEAD OF RURAL AND AGRICULTURAL.  FN4  THE EVIDENCE IS
IMPRESSIVE THAT AMONG INDUSTRIAL WORKERS THE YOUNGER MEN AND WOMEN ARE
PREFERRED OVER THE OLDER.  FN5  IN TIMES OF RETRENCHMENT THE OLDER ARE
COMMONLY THE FIRST TO GO, AND EVEN IF RETAINED, THEIR WAGES ARE LIKELY
TO BE LOWERED.  THE PLIGHT OF MEN AND WOMEN AT SO LOW AN AGE AS 40 IS
HARD, ALMOST HOPELESS, WHEN THEY ARE DRIVEN TO SEEK FOR REEMPLOYMENT. 
STATISTICS ARE IN THE BRIEF.  A FEW ILLUSTRATIONS WILL BE CHOSEN FROM
MANY THERE COLLECTED.  IN 1930, OUT OF 224 AMERICAN FACTORIES
INVESTIGATED, 71, OR ALMOST ONE THIRD, HAD FIXED MAXIMUM HIRING AGE
LIMITS; IN 4 PLANTS THE LIMIT WAS UNDER 40; IN 41 IT WAS UNDER 46.  IN
THE OTHER 153 PLANTS THERE WERE NO FIXED LIMITS, BUT IN PRACTICE FEW
WERE HIRED IF THEY WERE OVER 50 YEARS OF AGE.  FN6  WITH THE LOSS OF
SAVINGS INEVITABLE IN PERIODS OF IDLENESS, THE FATE OF WORKERS OVER 65,
WHEN THROWN OUT OF WORK, IS LITTLE LESS THAN DESPERATE.  A RECENT STUDY
OF THE SOCIAL SECURITY BOARD INFORMS US THAT "ONE-FIFTH OF THE AGED IN
THE UNITED STATES WERE RECEIVING OLD-AGE ASSISTANCE, EMERGENCY RELIEF,
INSTITUTIONAL CARE, EMPLOYMENT UNDER THE WORKS PROGRAM, OR SOME OTHER
FORM OF AID FROM PUBLIC OR PRIVATE FUNDS; TWO-FIFTHS TO ONE-HALF WERE
DEPENDENT ON FRIENDS AND RELATIVES, ONE-EIGHTH HAD SOME INCOME FROM
EARNINGS; AND POSSIBLY ONE-SIXTH HAD SOME SAVINGS OR PROPERTY. 
APPROXIMATELY THREE OUT OF FOUR PERSONS 65 OR OVER WERE PROBABLY
DEPENDENT WHOLLY OR PARTIALLY ON OTHERS FOR SUPPORT."  FN7  WE
SUMMARIZE IN THE MARGIN THE RESULTS OF OTHER STUDIES BY STATE AND
NATIONAL COMMISSIONS.  FN8  THEY POINT THE SAME WAY. 

THE PROBLEM IS PLAINLY NATIONAL IN AREA AND DIMENSIONS.  MOREOVER,
LAWS OF THE SEPARATE STATES CANNOT DEAL WITH IT EFFECTIVELY.  CONGRESS,
AT LEAST, HAD A BASIS FOR THAT BELIEF.  STATES AND LOCAL GOVERNMENTS
ARE OFTEN LACKING IN THE RESOURCES THAT ARE NECESSARY TO FINANCE AN
ADEQUATE PROGRAM OF SECURITY FOR THE AGED.  THIS IS BROUGHT OUT WITH A
WEALTH OF ILLUSTRATION IN RECENT STUDIES OF THE PROBLEM.  FN9  APART
FROM THE FAILURE OF RESOURCES, STATES AND LOCAL GOVERNMENTS ARE AT
TIMES RELUCTANT TO INCREASE SO HEAVILY THE BURDEN OF TAXATION TO BE
BORNE BY THEIR RESIDENTS FOR FEAR OF PLACING THEMSELVES IN A POSITION
OF ECONOMIC DISADVANTAGE AS COMPARED WITH NEIGHBORS OR COMPETITORS.  WE
HAVE SEEN THIS IN OUR STUDY OF THE PROBLEM OF UNEMPLOYMENT
COMPENSATION.  STEWARD MACHINE CO. V. DAVIS, SUPRA.  A SYSTEM OF OLD
AGE PENSIONS HAS SPECIAL DANGERS OF ITS OWN, IF PUT IN FORCE IN ONE
STATE AND REJECTED IN ANOTHER.  THE EXISTENCE OF SUCH A SYSTEM IS A
BAIT TO THE NEEDY AND DEPENDENT ELSEWHERE, ENCOURAGING THEM TO MIGRATE
AND SEEK A HAVEN OF REPOSE.  ONLY A POWER THAT IS NATIONAL CAN SERVE
THE INTERESTS OF ALL. 

WHETHER WISDOM OR UNWISDOM RESIDES IN THE SCHEME OF BENEFITS SET
FORTH IN TITLE II, IT IS NOT FOR US TO SAY.  THE ANSWER TO SUCH
INQUIRIES MUST COME FROM CONGRESS, NOT THE COURTS.  OUR CONCERN HERE,
AS OFTEN, IS WITH POWER, NOT WITH WISDOM.  COUNSEL FOR RESPONDENT HAS
RECALLED TO US THE VIRTUES OF SELF-RELIANCE AND FRUGALITY.  THERE IS A
POSSIBILITY, HE SAYS, THAT AID FROM A PATERNAL GOVERNMENT MAY SAP THOSE
STURDY VIRTUES AND BREED A RACE OF WEAKLINGS.  IF MASSACHUSETTS SO
BELIEVES AND SHAPES HER LAWS IN THAT CONVICTION, MUST HER BREED OF SONS
BE CHANGED, HE ASKS, BECAUSE SOME OTHER PHILOSOPHY OF GOVERNMENT FINDS
FAVOR IN THE HALLS OF CONGRESS?  BUT THE ANSWER IS NOT DOUBTFUL.  ONE
MIGHT ASK WITH EQUAL REASON WHETHER THE SYSTEM OF PROTECTIVE TARIFFS IS
TO BE SET ASIDE AT WILL IN ONE STATE OR ANOTHER WHENEVER LOCAL POLICY
PREFERS THE RULE OF LAISSEZ FAIRE.  THE ISSUE IS A CLOSED ONE.  IT WAS
FOUGHT OUT LONG AGO.  FN10  WHEN MONEY IS SPENT TO PROMOTE THE GENERAL
WELFARE, THE CONCEPT OF WELFARE OR THE OPPOSITE IS SHAPED BY CONGRESS,
NOT THE STATES.  SO THE CONCEPT BE NOT ARBITRARY, THE LOCALITY MUST
YIELD.  CONSTITUTION, ART. VI, PAR. 2. 

THIRD.  TITLE II BEING VALID, THERE IS NO OCCASION TO INQUIRE WHETHER
TITLE VIII WOULD HAVE TO FALL IF TITLE II WERE SET AT NAUGHT. 

THE ARGUMENT FOR THE RESPONDENT IS THAT THE PROVISIONS OF THE TWO
TITLES DOVETAIL IN SUCH A WAY AS TO JUSTIFY THE CONCLUSION THAT
CONGRESS WOULD HAVE BEEN UNWILLING TO PASS ONE WITHOUT THE OTHER.  THE
ARGUMENT FOR PETITIONERS IS THAT THE TAX MONEYS ARE NOT EARMARKED, AND
THAT CONGRESS IS AT LIBERTY TO SPEND THEM AS IT WILL.  THE USUAL
SEPARABILITY CLAUSE IS EMBODIED IN THE ACT.  SEC. 1103. 

WE FIND IT UNNECESSARY TO MAKE A CHOICE BETWEEN THE ARGUMENTS, AND SO
LEAVE THE QUESTION OPEN. 

FOURTH.  THE TAX UPON EMPLOYERS IS A VALID EXCISE OR DUTY UPON THE
RELATION OF EMPLOYMENT. 

AS TO THIS WE NEED NOT ADD TO OUR OPINION IN STEWARD MACHINE CO. V.
DAVIS, SUPRA, WHERE WE CONSIDERED A LIKE QUESTION IN RESPECT OF TITLE
IX. 

FIFTH.  THE TAX IS NOT INVALID AS A RESULT OF ITS EXEMPTIONS. 

HERE AGAIN THE OPINION IN STEWARD MACHINE CO. V. DAVIS, SUPRA, SAYS
ALL THAT NEED BE SAID. 

SIXTH.  THE DECREE OF THE COURT OF APPEALS SHOULD BE REVERSED AND
THAT OF THE DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  (1)  IF THROUGH AN ADMINISTRATIVE ERROR OR DELAY A PERSON WHO IS
RECEIVING A MONTHLY PENSION DIES BEFORE HE RECEIVES THE CORRECT AMOUNT,
THE AMOUNT WHICH SHOULD HAVE BEEN PAID TO HIM IS PAID IN A LUMP SUM TO
HIS ESTATE (SEC. 203(C)). 

(2)  IF A PERSON WHO HAS EARNED WAGES IN EACH OF AT LEAST FIVE
SEPARATE YEARS SINCE DECEMBER 31, 1936, AND WHO HAS EARNED IN THAT
PERIOD MORE THAN $2,000, DIES AFTER ATTAINING THE AGE OF 65, BUT BEFORE
HE HAS RECEIVED IN MONTHLY PENSIONS AN AMOUNT EQUAL TO 3 1/2 PERCENT OF
THE "WAGES" PAID TO HIM BETWEEN JANUARY 1, 1937, AND THE TIME HE
REACHES 65, THEN THERE IS PAID IN A LUMP SUM TO HIS ESTATE THE
DIFFERENCE BETWEEN SAID 3 1/2 PERCENT AND THE TOTAL AMOUNT PAID TO HIM
DURING HIS LIFE AS MONTHLY PENSIONS (SEC. 203(B)). 

(3)  IF A PERSON WHO HAS EARNED WAGES SINCE DECEMBER 31, 1936, DIES
BEFORE ATTAINING THE AGE OF 65, THEN THERE IS PAID TO HIS ESTATE 3 1/2
PERCENT OF THE "WAGES" PAID TO HIM BETWEEN JANUARY 1, 1937, AND HIS
DEATH (SEC. 203(A)). 

(4)  IF A PERSON HAS, SINCE DECEMBER 31, 1936, EARNED WAGES IN
EMPLOYMENT COVERED BY TITLE II, BUT HAS ATTAINED THE AGE OF 65 EITHER
WITHOUT WORKING FOR AT LEAST ONE DAY IN EACH OF 5 SEPARATE YEARS SINCE
1936, OR WITHOUT EARNING AT LEAST $2,000 BETWEEN JANUARY 1, 1937, AND
THE TIME HE ATTAINS 65, THEN THERE IS PAID TO HIM (OR TO HIS ESTATE,
SEC. 204(B)), A LUMP SUM EQUAL TO 3 1/2 PERCENT OF THE "WAGES" PAID TO
HIM BETWEEN JANUARY 1, 1937, AND THE TIME HE ATTAINED 65(SEC. 
204(A)). 

FN2  REPORT TO THE PRESIDENT OF THE COMMITTEE ON ECONOMIC SECURITY,
1935. 

FN3  HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS ON H.R.
4120, 74TH CONGRESS, 1ST SESSION; HEARINGS BEFORE THE SENATE COMMITTEE
ON FINANCE ON S. 1130, 74TH CONGRESS, 1ST SESSION. 

FN4  SEE REPORT OF THE COMMITTEE ON RECENT SOCIAL TRENDS, 1932, VOL.
1, PP. 8, 502; THOMPSON AND WHELPTON, POPULATION TRENDS IN THE UNITED
STATES, PP. 18, 19. 

FN5  SEE THE AUTHORITIES COLLECTED AT PP. 54-62 OF THE GOVERNMENT'S
BRIEF. 

FN6  HIRING AND SEPARATION METHODS IN AMERICAN INDUSTRY, 35 MONTHLY
LABOR REVIEW, PP. 1005, 1009. 

FN7  ECONOMIC INSECURITY IN OLD AGE (SOCIAL SECURITY BOARD, 1937), P.
15. 

FN8  THE SENATE COMMITTEE ESTIMATED, WHEN INVESTIGATING THE PRESENT
ACT, THAT OVER ONE HALF OF THE PEOPLE IN THE UNITED STATES OVER 65
YEARS OF AGE ARE DEPENDENT UPON OTHERS FOR SUPPORT.  SENATE REPORT, NO.
628, 74TH CONGRESS, 1ST SESSION, P. 4.  A SIMILAR ESTIMATE WAS MADE IN
THE REPORT TO THE PRESIDENT OF THE COMMITTEE ON ECONOMIC SECURITY,
1935, P. 24. 

A REPORT OF THE PENNSYLVANIA COMMISSION ON OLD AGE PENSIONS MADE IN
1919(P. 108) AFTER A STUDY OF 16,281 PERSONS AND INTERVIEWS WITH MORE
THAN 3,500 PERSONS 65 YEARS AND OVER SHOWED TWO FIFTHS WITH NO INCOME
BUT WAGES AND ONE FOURTH SUPPORTED BY CHILDREN; 1.5 PER CENT HAD
SAVINGS AND 11.8 PER CENT HAD PROPERTY. 

A REPORT ON OLD AGE PENSIONS BY THE MASSACHUSETTS COMMISSION ON
PENSIONS (SENATE NO. 5, 1925, PP. 41, 52) SHOWED THAT IN 1924 TWO
THIRDS OF THOSE ABOVE 65 HAD, ALONE OR WITH A SPOUSE, LESS THAN $5,000
OF PROPERTY, AND ONE FOURTH HAD NONE.  TWO THIRDS OF THOSE WITH LESS
THAN $5,000 AND INCOME OF LESS THAN $1,000 WERE DEPENDENT IN WHOLE OR
IN PART ON OTHERS FOR SUPPORT. 

A REPORT OF THE NEW YORK STATE COMMISSION MADE IN 1930(LEGIS.  DOC. 
NO. 67, 1930, P. 39) SHOWED A CONDITION OF TOTAL DEPENDENCY AS TO 58
PER CENT OF THOSE 65 AND OVER, AND 62 PER CENT OF THOSE 70 AND OVER. 

THE NATIONAL GOVERNMENT HAS FOUND IN CONNECTION WITH GRANTS TO STATES
FOR OLD AGE ASSISTANCE UNDER ANOTHER TITLE OF THE SOCIAL SECURITY ACT
(TITLE I) THAT IN FEBRUARY, 1937, 38.8 PER CENT OF ALL PERSONS OVER 65
IN COLORADO RECEIVED PUBLIC ASSISTANCE; IN OKLAHOMA THE PERCENTAGE WAS
44.1, AND IN TEXAS 37.5.  IN 10 STATES OUT OF 40 WITH PLANS APPROVED BY
THE SOCIAL SECURITY BOARD MORE THAN 25 PER CENT OF THOSE OVER 65 COULD
MEET THE RESIDENCE REQUIREMENTS AND QUALIFY UNDER A MEANS TEST AND WERE
ACTUALLY RECEIVING PUBLIC AID.  ECONOMIC INSECURITY IN OLD AGE, SUPRA,
P. 15. 

FN9  ECONOMIC INSECURITY IN OLD AGE, SUPRA, CHAP. VI, P. 184. 

FN10  IV CHANNING, HISTORY OF THE UNITED STATES, P. 404(SOUTH
CAROLINA NULLIFICATION); 8 ADAMS, HISTORY OF THE UNITED STATES (NEW
ENGLAND NULLIFICATION AND THE HARTFORD CONVENTION). 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER ARE OF OPINION THAT THE
PROVISIONS OF THE ACT HERE CHALLENGED ARE REPUGNANT TO THE TENTH
AMENDMENT, AND THAT THE DECREE OF THE CIRCUIT COURT OF APPEALS SHOULD
BE AFFIRMED. 
..END :








ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337 


NO. 667.  ARGUED APRIL 2, 1937.  - DECIDED MAY 17, 1937.  - 87 F.(2D)
773, AFFIRMED. 


1.  THE RIGHT TO SUE THE COLLECTOR FOR RECOVERY OF TAXES EXACTED UNDER
AN UNCONSTITUTIONAL STATUTE MAY, CONSISTENTLY WITH THE FIFTH AMENDMENT,
BE ABOLISHED IF A FAIR AND ADEQUATE REMEDY DIRECTLY AGAINST THE
GOVERNMENT BE SUBSTITUTED.  P. 341. 

2.  WITH RESPECT TO THE REFUNDING OF "FLOOR STOCK TAXES" COLLECTED
UNDER THE AGRICULTURAL ADJUSTMENT ACT OF 1933, THE REVENUE ACT OF 1936,
TITLE VII, SEC. 905, PRESERVES TO THE TAXPAYER THE REMEDY BY SUIT
AGAINST THE UNITED STATES IN THE DISTRICT COURTS OR THE COURT OF
CLAIMS.  P. 343. 

3.  WITH RESPECT TO THE REFUNDING OF PROCESSING TAXES COLLECTED UNDER
THE AGRICULTURAL ADJUSTMENT ACT OF 1933, THE REVENUE ACT OF 1936, TITLE
VII, SEC. 906, ESTABLISHES A SPECIAL AND EXCLUSIVE ADMINISTRATIVE
PROCEDURE BEFORE A BOARD OF REVIEW IN THE TREASURY DEPARTMENT, AND
PROVIDES FOR A JUDICIAL REVIEW OF THE BOARD'S DECISIONS IN WHICH MAY BE
DETERMINED EVERY QUESTION OF LAW WHICH THE CLAIMANT IS ENTITLED TO
RAISE, WHETHER GENERAL, STATUTORY, OR CONSTITUTIONAL, INCLUDING
QUESTIONS AS TO THE VALIDITY OF ANY PART OF TITLE VII ITSELF, AND IN
WHICH THE REVIEWING COURT IS EMPOWERED TO DIRECT THE BOARD TO ENTER ANY
DESIGNATED JUDGMENT, THE COMMISSIONER OF INTERNAL REVENUE BEING
REQUIRED TO REFUND ANY AMOUNT WHICH MAY THUS BE FOUND DUE THE
CLAIMANT.  P. 343. 

4.  WITH RESPECT TO THE REFUNDING OF SUCH PROCESSING TAXES, THE
REVENUE ACT OF 1936, SUPRA, PROVIDES, TITLE VII, SEC. 902(2), THAT NO
REFUND SHALL BE ALLOWED UNLESS THE CLAIMANT ESTABLISHES TO THE
SATISFACTION OF THE BOARD OF REVIEW THAT HE BORE THE BURDEN OF THE
AMOUNT PAID AS TAX AND "HAS NOT BEEN RELIEVED THEREOF NOR REIMBURSED
THEREFOR NOR SHIFTED SUCH BURDEN, DIRECTLY OR INDIRECTLY" THROUGH THE
INCLUSION OF THE AMOUNT PAID IN THE PRICE OF THE PRODUCT, THROUGH
REDUCTION OF THE PRICE PAID FOR THE RAW MATERIAL, OR "IN ANY MANNER
WHATSOEVER."  HELD: 

(1)  IF THE TAXPAYER HAS THUS SHIFTED THE BURDEN OF THE TAX, HE IS NO
LONGER IN A POSITION TO CLAIM AN ACTUAL INJURY AND THE REFUSAL OF A
REFUND IN SUCH A CASE CANNOT BE REGARDED AS A DENIAL OF CONSTITUTIONAL
RIGHT.  P 348. 

(2)  THE FACT THAT THE ACT MAKES NO PROVISION FOR REFUNDING TO
PARTICULAR PERSONS, TO WHOM THE BURDEN OF THE INVALID EXACTION MAY BE
FOUND TO HAVE BEEN SHIFTED, IS NO CONCERN OF THE TAXPAYER.  P. 350. 

(3)  THE STATUTE SHOULD NOT BE CONSTRUED AS DENYING A REFUND WHERE,
FROM THE NATURE OF THE CASE, PROOF THAT THE TAX BURDEN WAS NOT SHIFTED
IS INHERENTLY IMPOSSIBLE; BUT THE EXISTENCE OF SUCH IMPOSSIBILITY IS A
QUESTION OF FACT WHICH THE CLAIMANT MAY RAISE BEFORE THE BOARD; THE
CLAIMANT IS REQUIRED TO PRESENT TO THE BOARD THE FACTS PERTAINING TO
THE SUBJECT, AND THEREUPON IT BECOMES THE DUTY OF THE BOARD, UPON
FINDINGS SUPPORTED BY EVIDENCE, TO MAKE ITS DETERMINATION IN ACCORDANCE
WITH THE LEGAL RIGHTS OF THE CLAIMANT, SUBJECT TO MODIFICATION OR
REVERSAL BY THE REVIEWING COURT IF NOT IN ACCORDANCE WITH LAW.  P.
351. 

CONSTITUTIONAL QUESTIONS ARE NOT TO BE DECIDED HYPOTHETICALLY.  WHEN
PARTICULAR FACTS CONTROL THE DECISION THEY MUST BE SHOWN. 

(4)  OF TWO POSSIBLE CONSTRUCTIONS OF A STATUTE, THAT ONE SHOULD BE
ADOPTED WHICH WILL SAVE AND NOT DESTROY IT.  AN INTENT TO DEFY THE
FIFTH AMENDMENT OR EVEN TO COME SO NEAR TO DOING SO AS TO RAISE A
SERIOUS QUESTION OF CONSTITUTIONAL LAW CANNOT BE ATTRIBUTED TO
CONGRESS.  P. 351. 

(5)  SECTION 902 IS NOT TOO VAGUE; IT LAYS DOWN THE GENERAL PRINCIPLE
GOVERNING THE REMEDY AFFORDED, LEAVING ITS APPLICATIONS TO BE
DETERMINED BY FACTS AS THEY APPEAR IN PARTICULAR INSTANCES.  P. 353. 

5.  SECTION 907(A), OF TITLE VII, OF THE REVENUE ACT OF 1936,
PROVIDES THAT, IN THE ADMINISTRATIVE PROCEEDINGS ABOVE MENTIONED, THE
FACT THAT THE AVERAGE MARGIN PER UNIT OF COMMODITY PROCESSED WAS LOWER
DURING THE TAX PERIOD THAN THE AVERAGE MARGIN DURING THE PERIOD BEFORE
AND AFTER IT, SHALL BE PRIMA FACIE EVIDENCE THAT THE BURDEN OF THE
PROCESSING TAX WAS BORNE BY THE CLAIMANT TAXPAYER; AND THAT IF THE
AVERAGE MARGIN DURING THE TAX PERIOD WAS NOT LOWER, IT SHALL BE PRIMA
FACIE EVIDENCE THAT NONE OF THE BURDEN OF SUCH AMOUNT WAS BORNE BY THE
CLAIMANT BUT THAT IT WAS SHIFTED TO OTHERS.  "TAX PERIOD" AND "PERIOD
BEFORE AND AFTER THE TAX" ARE DEFINED.  SECTION 907(E) PROVIDES THAT
EITHER THE CLAIMANT OR THE COMMISSIONER MAY REBUT THE PRESUMPTIONS "BY
PROOF OF THE ACTUAL EXTENT TO WHICH THE CLAIMANT SHIFTED TO OTHERS THE
BURDENS OF THE PROCESSING TAX."  HELD THAT THE WORDS "ACTUAL EXTENT"
ARE USED IN CONTRADISTINCTION TO THE PRESUMED EXTENT, ACCORDING TO THE
PRIMA FACIE PRESUMPTION TO WHICH THE PROOF IN REBUTTAL IS ADDRESSED,
AND THAT COMPLETE OPPORTUNITY IS AFFORDED THE CLAIMANT TO PRESENT ANY
EVIDENCE WHICH MAY BE PERTINENT TO THE QUESTIONS TO BE DETERMINED BY
THE BOARD OF REVIEW AND WHICH MAY BE APPROPRIATE TO OVERCOME ANY
PRESUMPTION WHICH MIGHT BE INDULGED EITHER UNDER SEC. 907(A) OR
OTHERWISE.  P. 354. 

6.  SECTION 906(B) OF THE ACT OF 1936, TITLE VII, SUPRA, PROVIDES
THAT THE HEARING BEFORE THE BOARD IS TO BE CONDUCTED BY A PRESIDING
OFFICER WHO IS EITHER A MEMBER OF THE BOARD OR AN OFFICER OR EMPLOYEE
OF THE TREASURY DEPARTMENT DESIGNATED BY THE SECRETARY OF THE TREASURY,
AND SEC. 906(E) THAT THE PRESIDING OFFICER IS TO RECOMMEND TO THE
BOARD, OR A DIVISION, FINDINGS OF FACT AND A DECISION; BUT THE BOARD,
OR A DIVISION OF IT, IS REQUIRED TO CONSIDER THE EVIDENCE AND MAKE THE
FINDINGS AND ADMINISTRATIVE DECISION; AND THE WHOLE SCHEME OF THE
ADMINISTRATIVE PROCEEDING PRESUPPOSES HEARING AND DETERMINATION IN
ACCORDANCE WITH THE DEMANDS OF DUE PROCESS.  P. 356. 

ANNISTON MANUFACTURING CO. V. DAVIS, COLLECTOR OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 300 U.S. 649, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT, DISMISSING, ON DEMURRER TO THE COMPLAINT, AN ACTION
AGAINST THE COLLECTOR TO RECOVER AMOUNTS PAID AS COTTON "PROCESSING"
TAXES AND AS COTTON "FLOOR STOCK" TAXES UNDER THE AGRICULTURAL
ADJUSTMENT ACT OF 1933, WHICH WAS HELD UNCONSTITUTIONAL BY THIS COURT
IN UNITED STATES V. BUTLER, 297 U.S. 1. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

PETITIONER BROUGHT THIS SUIT ON NOVEMBER 22, 1935, AGAINST THE
COLLECTOR OF INTERNAL REVENUE TO RECOVER THE AMOUNTS PAID AS COTTON
"PROCESSING" TAXES (FIRST CAUSE OF ACTION) AND AS COTTON "FLOOR STOCK"
TAXES (SECOND CAUSE OF ACTION) UNDER THE AGRICULTURAL ADJUSTMENT ACT OF
1933.  48 STAT. 31, 35, 40.  PETITIONER ALLEGED THE UNCONSTITUTIONALITY
OF THE STATUTE IMPOSING THE TAX (UNITED STATES V. BUTLER, 297 U.S. 1)
AND THAT CLAIM FOR REFUND HAD BEEN REJECTED BY THE COMMISSIONER OF
INTERNAL REVENUE ON AUGUST 16, 1935.  AFTER THE ENACTMENT OF TITLE VII
OF THE REVENUE ACT OF 1936, SECS. 901-917(49 STAT. 1747), PETITIONER
AMENDED ITS COMPLAINT, ASSERTING THE UNCONSTITUTIONALITY OF THESE
PROVISIONS.  DEMURRER WAS SUSTAINED BY THE DISTRICT COURT (15 F.SUPP. 
257) AND ITS JUDGMENT OF DISMISSAL WAS AFFIRMED BY THE CIRCUIT COURT OF
APPEALS UPON THE GROUND THAT THE COURT BELOW WAS WITHOUT JURISDICTION
TO ENTERTAIN THE ACTION.  87 F.(2D) 773.  IN VIEW OF THE IMPORTANCE OF
THE QUESTIONS RAISED, WE GRANTED CERTIORARI. 

TITLE VII, SECS. 901-917, OF THE REVENUE ACT OF 1936, PROVIDED A NEW
ADMINISTRATIVE PROCEDURE FOR THE RECOVERY OF AMOUNTS COLLECTED UNDER
THE AGRICULTURAL ADJUSTMENT ACT.  SECTION 901 REPEALED SECS. 21(D),
21(E), AND 21(G), OF THE AMENDMENTS OF 1935(49 STAT. 771-773).  SECTION
902 PRESCRIBED THE CONDITIONS ON WHICH REFUNDS SHOULD BE MADE.  SECTION
903 RELATED TO THE FILING OF CLAIMS.  SECTIONS 904 AND 905 PRESCRIBED
PERIODS OF LIMITATION AND PROVIDED FOR THE JURISDICTION OF THE DISTRICT
COURTS, CONCURRENT WITH THE COURT OF CLAIMS, FOR THE RECOVERY OF
AMOUNTS COLLECTED AS FLOOR STOCK AND COMPENSATING TAXES.  SECTION 906
PRESCRIBED THE PROCEDURE ON CLAIMS FOR REFUNDS OF PROCESSING TAXES. 
OBSERVED IN THE ADMINISTRATIVE PROCEEDING.  SECTION 908 RELATED TO
ALLOWANCE OF INTEREST.  SECTION 909 DENIED REVIEW OF THE ADMINISTRATIVE
RULING BY ANY OTHER ADMINISTRATIVE OR ACCOUNTING OFFICER.  SECTION 910
UNDERTOOK TO FREE THE COLLECTOR FROM LIABILITY FOR MONEYS COLLECTED BY
HIM AND PAID INTO THE TREASURY IN PERFORMANCE OF HIS OFFICIAL DUTIES. 
ADMINISTRATIVE RULES NOT REQUIRING ATTENTION IN THE PRESENT
DISCUSSION. 

FIRST.  PETITIONER CONTENDS THAT AT THE TIME IT BROUGHT THIS SUIT IT
HAD A VESTED RIGHT OF ACTION AGAINST THE COLLECTOR TO RECOVER THE
AMOUNTS EXACTED UNDER STATUTORY PROVISIONS HELD TO BE INVALID; THAT
THIS RIGHT OF ACTION COULD NOT BE DESTROYED WITHOUT VIOLATING THE FIFTH
AMENDMENT; THAT THE COLLECTOR WAS PERSONALLY LIABLE FOR THE AMOUNTS
COLLECTED AND THAT SEC. 910 WHICH ATTEMPTED TO DESTROY THAT LIABILITY
IS UNCONSTITUTIONAL. 

THE GOVERNMENT ANSWERS THAT THE INSTANT CASE "DOES NOT REQUIRE A
DECISION AS TO THE POWER OF CONGRESS TO WITHDRAW SUIT ENTIRELY, BOTH
AGAINST THE COLLECTOR AND AGAINST THE GOVERNMENT"; THAT CONGRESS "HAS
LEFT A REMEDY AGAINST THE GOVERNMENT WHICH IS FAIR AND ADEQUATE IN
EVERY RESPECT."  WE AGREE WITH THE GOVERNMENT'S CONTENTION THAT IF THE
ADMINISTRATIVE REMEDY IS FAIR AND ADEQUATE, OTHER QUESTIONS WITH
RESPECT TO THE LIABILITY OF THE COLLECTOR AND THE VALIDITY OF SEC. 910
NEED NOT NOW BE CONSIDERED.  WE HAD OCCASION TO DEAL WITH A COGNATE
QUESTION IN BURRILL V. LOCOMOBILE CO., 258 U.S. 34.  THAT DECISION WAS
RENDERED IN SUITS BROUGHT BY FOREIGN CORPORATIONS IN THE FEDERAL COURT
TO RECOVER TAXES ALLEGED TO HAVE BEEN PAID TO THE DEFENDANT, THE
TREASURER OF MASSACHUSETTS, UNDER DURESS AND IN OBEDIENCE TO STATUTES
HELD BY THIS COURT TO BE UNCONSTITUTIONAL IN INTERNATIONAL PAPER CO. V.
MASSACHUSETTS, 246 U.S. 135, AND LOCOMOBILE CO. V. MASSACHUSETTS, 246
U.S. 146.  A STATUTE OF MASSACHUSETTS PROVIDED THAT ANY CORPORATION
AGGRIEVED BY THE EXACTION OF THE TAX COULD APPLY BY PETITION TO THE
SUPREME JUDICIAL COURT AND THAT THE REMEDY SO PROVIDED SHOULD BE
EXCLUSIVE.  AS THE STATUTE CONTAINED A PROVISION FOR REPAYMENT OF ANY
SUM ADJUDGED TO HAVE BEEN ILLEGALLY EXACTED, IT WAS CONTENDED THAT IT
CONSTITUTED A BAR TO A PERSONAL SUIT AGAINST THE TREASURER WHO HAD
COLLECTED THE TAX.  THIS COURT AGREED WITH THE DEFENDANT UPON THAT
POINT.  THE STATE HAD SUBSTITUTED AN EXCLUSIVE REMEDY AGAINST ITSELF
FOR THE REMEDY AGAINST THE TREASURER AND HAD GUARANTEED PAYMENT OF THE
AMOUNT FOUND TO BE DUE.  THE VALIDITY OF THE STATUTE WAS SUSTAINED.  WE
SAID THAT WE DID "NOT PERCEIVE WHY THE STATE MAY NOT PROVIDE THAT ONLY
THE AUTHOR OF THE WRONG SHALL BE LIABLE FOR IT, AT LEAST WHEN, AS HERE,
THE REMEDY OFFERED IS ADEQUATE AND BACKED BY THE RESPONSIBILITY OF THE
STATE." 

THE SAME REASONING IS APPLICABLE HERE.  THE GOVERNMENT HAS NOT DENIED
ITS OBLIGATION TO REFUND THE AMOUNTS FOUND IN THE AUTHORIZED PROCEEDING
TO BE RECOVERABLE, BUT HAS RECOGNIZED THAT OBLIGATION.  IN SUCH A CASE,
THE SUBSTITUTION OF AN EXCLUSIVE REMEDY DIRECTLY AGAINST THE GOVERNMENT
IS NOT AN INVASION OF CONSTITUTIONAL RIGHT.  NOR DOES THE REQUIREMENT
OF RECOURSE TO ADMINISTRATIVE PROCEDURE ESTABLISH INVALIDITY IF LEGAL
RIGHTS ARE STILL SUITABLY PROTECTED.  THE IMMEDIATE QUESTION IS WHETHER
THE AUTHORIZED PROCEEDING AFFORDS A FAIR AND ADEQUATE REMEDY.  WE
ACCORDINGLY INQUIRE WHETHER THE PRESCRIBED PROCEDURE GIVES AN
OPPORTUNITY FOR A FULL AND FAIR HEARING AND DETERMINATION OF ALL
QUESTIONS OF FACT AND ADEQUATELY PROVIDES FOR THE PROTECTION OF THE
LEGAL RIGHTS OF THE CLAIMANT, EMBRACING WHATEVER RIGHT OF REFUND THE
CLAIMANT IS ENTITLED TO ASSERT UNDER THE FEDERAL CONSTITUTION. 

SECOND.  WITH RESPECT TO FLOOR STOCK TAXES, NO SERIOUS QUESTION IS
PRESENTED AS TO THE ADEQUACY OF THE REMEDY.  THE REMEDY BY SUIT IS
EXPRESSLY PRESERVED.  IF THE COMMISSIONER REFUSES REFUND, SUIT MAY BE
BROUGHT AGAINST THE UNITED STATES IN THE COURT OF CLAIMS OR IN THE
DISTRICT COURT FOR THE RECOVERY OF THE AMOUNT CLAIMED TO HAVE BEEN
ILLEGALLY EXACTED.  SEC. 905. 

THIRD.  WITH RESPECT TO THE REFUNDING OF PROCESSING TAXES, A SPECIAL
AND EXCLUSIVE ADMINISTRATIVE PROCEDURE IS PROVIDED.  SEC. 906. 
DISALLOWANCE BY THE COMMISSIONER OF A CLAIM OF REFUND, IN WHOLE OR
PART, IS MADE FINAL UNLESS WITHIN THREE MONTHS THE CLAIMANT FILES A
PETITION FOR HEARING UPON THE MERITS BY A BOARD OF REVIEW WHICH THE ACT
ESTABLISHES IN THE TREASURY DEPARTMENT.  THE BOARD IS COMPOSED OF NINE
MEMBERS WHO ARE OFFICERS OR EMPLOYEES OF THE DEPARTMENT AND ARE
DESIGNATED BY THE SECRETARY OF THE TREASURY.  THE BOARD IS "TO
DETERMINE THE AMOUNT OF REFUND DUE ANY CLAIMANT WITH RESPECT TO SUCH
CLAIM."  THE COMMISSIONER IS REQUIRED TO "MAKE REFUND OF ANY SUCH
AMOUNT DETERMINED BY A DECISION OF THE BOARD WHICH HAS BECOME FINAL." 
SEC. 906(B).  THE HEARING, UPON NOTICE, BEFORE THE BOARD IS TO BE OPEN
TO THE PUBLIC AND IS TO BE CONDUCTED BY A PRESIDING OFFICER WHO IS
EITHER A MEMBER OF THE BOARD OR AN OFFICER OR EMPLOYEE OF THE TREASURY
DEPARTMENT DESIGNATED BY THE SECRETARY OF THE TREASURY.  THE
PROCEEDINGS ARE TO BE IN ACCORDANCE WITH THE RULES OF PRACTICE AND
PROCEDURE PRESCRIBED BY THE BOARD WITH THE APPROVAL OF THE SECRETARY OF
THE TREASURY SAVE WITH RESPECT TO RULES OF EVIDENCE, WHICH ARE TO BE IN
ACCORDANCE WITH THOSE APPLICABLE IN COURTS OF EQUITY OF THE DISTRICT OF
COLUMBIA.  THE CLAIMANT AND THE COMMISSIONER ARE ENTITLED "TO BE
REPRESENTED BY COUNSEL, TO HAVE WITNESSES SUBPOENAED, AND TO EXAMINE
AND CROSS EXAMINE WITNESSES."  PROVISION IS MADE TO COMPEL THE
ATTENDANCE AND TESTIMONY OF WITNESSES AND THE PRODUCTION OF BOOKS AND
PAPERS FROM ANY PLACE IN THE UNITED STATES AND TO REQUIRE THE TAKING OF
DEPOSITIONS.  SEC. 906(C)(D).  THE PRESIDING OFFICERS ARE TO RECOMMEND
FINDINGS OF FACT AND A DECISION TO THE BOARD OR THE PROPER DIVISION
THEREOF WITHIN SIX MONTHS AFTER THE CONCLUSION OF THE HEARING.  BRIEFS
WITH RESPECT TO SUCH RECOMMENDATIONS MAY BE SUBMITTED WITHIN A
SPECIFIED TIME.  THE BOARD OR A DIVISION IS TO MAKE ITS FINDINGS OF
FACT AND DECISION IN WRITING AS QUICKLY AS PRACTICABLE.  THE FINDINGS
AND DECISION OF A DIVISION ARE TO BECOME THOSE OF THE BOARD WITHIN
THIRTY DAYS UNLESS THE CHAIRMAN HAS DIRECTED THAT THEY BE REVIEWED BY
THE BOARD.  COPIES OF THE FINDINGS AND DECISION ARE TO BE MAILED TO THE
CLAIMANT AND THE COMMISSIONER.  SEC. 906(E).  THERE IS A FURTHER
PROVISION AS TO COSTS AND FEES.  SEC. 906(F).  THE DECISION OF THE
BOARD IS TO BECOME FINAL IN THE SAME MANNER AS DECISIONS OF THE BOARD
OF TAX APPEALS UNDER SEC. 1005 OF THE REVENUE ACT OF 1926 AS AMENDED. 
SEC. 906(G); 26 U.S.C. 640. 

JUDICIAL REVIEW OF THE DECISION OF THE BOARD IS PROVIDED.  THAT
REVIEW MAY BE HAD BY A CIRCUIT COURT OF APPEALS OR BY THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, ACCORDING TO THE
RESIDENCE OR PLACE OF BUSINESS OF THE CLAIMANT, OR BY ANY SUCH COURT AS
MAY BE DESIGNATED BY THE COMMISSIONER AND THE CLAIMANT BY STIPULATION. 
UPON PETITION FOR REVIEW THE BOARD IS TO CERTIFY AND FILE IN THE
APPROPRIATE COURT A TRANSCRIPT OF THE RECORD UPON WHICH THE FINDINGS
AND DECISION WERE BASED.  THEREUPON, THE COURT OF APPEALS IS TO HAVE
"EXCLUSIVE JURISDICTION TO AFFIRM THE DECISION OF THE BOARD, OR TO
MODIFY OR REVERSE SUCH DECISION, IF IT IS NOT IN ACCORDANCE WITH LAW,
WITH OR WITHOUT REMANDING THE CAUSE FOR A REHEARING, AS JUSTICE MAY
REQUIRE."  SEC. 906(G).  IF THE CLAIMANT OR THE COMMISSIONER APPLIES TO
THE COURT OF APPEALS FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE THE COURT
MAY ORDER IT TO BE TAKEN BEFORE THE PRESIDING OFFICER IF THE COURT IS
SATISFIED THAT THE ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR FAILURE TO ADDUCE IT AT THE HEARING.  THE BOARD
MAY MODIFY ITS FINDINGS AND DECISION BY REASON OF SUCH ADDITIONAL
EVIDENCE, FILING ITS MODIFIED OR NEW DETERMINATION WITH THE COURT.  THE
JUDGMENT OF THE COURT OF APPEALS IS TO BE FINAL, SUBJECT TO REVIEW BY
THIS COURT UPON CERTIFICATION OR CERTIORARI AS PROVIDED IN SECS. 239
AND 240 OF THE JUDICIAL CODE. 

WE THINK THAT THIS PLAN OF PROCEDURE PROVIDES FOR THE JUDICIAL
DETERMINATION OF EVERY QUESTION OF LAW WHICH THE CLAIMANT IS ENTITLED
TO RAISE.  WE FIND NOTHING IN THE STATUTE WHICH LIMITS THE JUDICIAL
REVIEW TO QUESTIONS OF STATUTORY CONSTRUCTION OR OF MERE REGULARITY OF
PROCEDURE.  THE "LAW," WITH WHICH THE DECISION OF THE BOARD MAY BE IN
CONFLICT, MAY BE THE FUNDAMENTAL LAW.  QUESTIONS OF VALIDITY AS WELL AS
OF STATUTORY AUTHORITY OR REGULARITY MAY BE DETERMINED.  THESE MAY
RELATE TO DUE PROCESS IN THE HEARING OR IN THE REFUSAL OF A REFUND. 
THE GOVERNMENT DOES NOT CONTEST THIS CONSTRUCTION BUT ON THE CONTRARY
AFFIRMS IT.  THE GOVERNMENT RECOGNIZES AND URGES THAT THE JURISDICTION
GIVEN TO THE COURT OF APPEALS "TO MODIFY OR REVERSE" THE DECISION OF
THE BOARD "IF IT IS NOT IN ACCORDANCE WITH LAW" INCLUDES THE POWER TO
REVIEW ALL QUESTIONS OF GENERAL AND STATUTORY LAW AND ALL
CONSTITUTIONAL QUESTIONS.  THUS EVERY CONSTITUTIONAL RIGHT WHICH THE
PETITIONER HERE IS ENTITLED TO INVOKE WITH RESPECT TO THE REFUND OF THE
TAXES WHICH IT HAS PAID MAY BE HEARD AND DETERMINED BY THE COURT OF
APPEALS AND ULTIMATELY BY THIS COURT UPON A REVIEW OF A DECISION
REACHED IN THE COURSE OF THE PRESCRIBED ADMINISTRATIVE PROCEDURE.  THE
GOVERNMENT URGES, AND WE THINK CORRECTLY, THAT IF ON SUCH A REVIEW ANY
PART OF TITLE VII WERE HELD TO BE INVALID, "THE TAXPAYER MAY RECOVER
ALL OF THE TAXES TO WHICH HE IS ENTITLED UNDER SUCH A DECISION."  UPON
THE JUDICIAL REVIEW OF THE ACTION OF THE BOARD, THE COURT OF APPEALS
AND THIS COURT WOULD HAVE POWER "TO DIRECT THE BOARD TO ENTER ANY
DESIGNATED JUDGMENT" AND THE COMMISSIONER IS REQUIRED TO MAKE REFUND OF
ANY AMOUNT WHICH MAY THUS BE DETERMINED TO BE DUE THE CLAIMANT.  FN1 

FOURTH.  THE QUESTION THEN IS WHETHER, DESPITE THIS BROAD RIGHT OF
JUDICIAL REVIEW OF THE ACTION OF THE BOARD, THE ADMINISTRATIVE SCHEME
HAS SUCH INHERENT CONSTITUTIONAL DEFECTS THAT THE PETITIONER SHOULD NOT
BE REMITTED TO THAT PROCEDURE.  THE INQUIRY HAS PARTICULAR RELATION TO
THE PROVISIONS (1) AS TO BURDEN OF PROOF, SEC. 902, (2) AS TO
PRESUMPTIONS, SEC. 907, AND (3) AS TO CERTAIN MATTERS OF ADMINISTRATIVE
DETAIL. 

THE BURDEN OF PROOF.  - SECTION 902, THE FULL TEXT OF WHICH IS SET
OUT IN THE MARGIN,  FN2 PROVIDES THAT NO REFUND SHALL BE ALLOWED UNLESS
THE CLAIMANT ESTABLISHES TO THE SATISFACTION OF THE COMMISSIONER, OR OF
THE TRIAL COURT, OR OF THE BOARD OF REVIEW IN CASES UNDER SEC. 906,
THAT THE CLAIMANT BORE THE BURDEN OF THE AMOUNT PAID AS TAX AND "HAS
NOT BEEN RELIEVED THEREOF NOR REIMBURSED THEREFOR NOR SHIFTED SUCH
BURDEN, DIRECTLY OR INDIRECTLY" (1) THROUGH THE INCLUSION OF THE AMOUNT
PAID IN THE PRICE OF THE PRODUCT, (2) THROUGH REDUCTION OF THE PRICE
PAID FOR THE RAW MATERIAL, OR (3) "IN ANY MANNER WHATSOEVER." 
ACCORDING TO THE ALLEGATIONS OF THE COMPLAINT, THE PETITIONER INITIALLY
DID BEAR THE BURDEN OF THE UNCONSTITUTIONAL TAX, AS PETITIONER PAID IT.
THE QUESTION FOR ADMINISTRATIVE DETERMINATION IS WHETHER THE BURDEN OF
THAT PAYMENT HAS BEEN SHIFTED.  SO FAR AS PETITIONER'S CONTENTION MAY
BE TAKEN TO BE THAT IT IS ENTITLED TO RECOVER BY REASON OF THE
INVALIDITY OF THE TAX, ALTHOUGH IN FACT ITS BURDEN HAS BEEN "PASSED ON"
TO ANOTHER, THE CONTENTION CANNOT BE SUSTAINED.  WHILE THE TAXPAYER WAS
UNDOUBTEDLY HURT WHEN HE PAID THE TAX, IF HE HAS OBTAINED RELIEF
THROUGH THE SHIFTING OF ITS BURDEN, HE IS NO LONGER IN A POSITION TO
CLAIM AN ACTUAL INJURY AND THE REFUSAL OF A REFUND IN SUCH A CASE
CANNOT BE REGARDED AS A DENIAL OF CONSTITUTIONAL RIGHT. 

THAT QUESTION WAS DECIDED IN UNITED STATES V. JEFFERSON ELECTRIC CO.,
291 U.S. 386, AND THE CONTROLLING PRINCIPLE AS TO BURDEN OF PROOF WAS
DECLARED.  THERE, ACTIONS AT LAW HAD BEEN BROUGHT, ONE AGAINST THE
UNITED STATES AND OTHERS AGAINST A REVENUE COLLECTOR, TO RECOVER MONEY
ALLEGED TO HAVE BEEN ILLEGALLY EXACTED AS AN EXCISE TAX.  THE GROUND OF
ILLEGALITY WAS THAT THE SALES, WITH RESPECT TO WHICH THE TAXES WERE
LAID, WERE NOT WITHIN THE PURVIEW OF THE TAX STATUTE.  THE QUESTION
CONCERNED THE AUTHORITY OF THE COURT TO ENTERTAIN THE ACTIONS IN VIEW
OF THE PROVISION OF SEC. 424 OF THE REVENUE ACT OF 1928 RELATING TO
REFUNDS.  PROPERLY CONSTRUED, THAT PROVISION WAS TAKEN "AS
SUBSTANTIVELY LIMITING THE RIGHT TO A REFUND OF TAXES OF THE DESIGNATED
CLASS TO INSTANCES WHERE THE TAXPAYER EITHER HAS NOT DIRECTLY OR
INDIRECTLY COLLECTED THE TAX FROM THE PURCHASER OR HAVING SO COLLECTED
IT HAS RETURNED IT TO HIM."  THIS "SUBSTANTIVE LIMITATION" WAS DEEMED
TO BE "AN ELEMENT OF THE RIGHT TO A REFUND OF SUCH TAXES," ALTHOUGH
THEY WERE WHOLLY INVALID AND NOT MERELY LAID IN EXCESS OF WHAT WAS
LAWFUL, AND HENCE THE STATUTE REQUIRED THAT THIS ELEMENT, LIKE OTHERS,
"BE SATISFACTORILY ESTABLISHED IN ANY PROCEEDINGS WHERE AN ASSERTED
RIGHT TO A REFUND IS PRESENTED FOR EXAMINATION AND DETERMINATION."  WE
HELD THAT THE PROVISION WAS APPLICABLE TO JUDICIAL AS WELL AS TO
ADMINISTRATIVE PROCEEDINGS FOR REFUNDS UNDER THE ACT.  ID., P. 395.  WE
RECOGNIZED THAT, UNDER THE SYSTEM THEN IN FORCE, IN VIEW OF THE
ILLEGALITY OF THE TAX, "THERE ACCRUED TO THE TAXPAYER WHEN HE PAID THE
TAX A RIGHT TO HAVE IT REFUNDED WITHOUT ANY SHOWING AS TO WHETHER HE
BORE THE BURDEN OF THE TAX OR SHIFTED IT TO THE PURCHASERS."  AND IT
WAS FURTHER CONCEDED THAT THE PROVISION OF SEC. 424 OF THE REVENUE ACT
OF 1928 APPLIED "TO RIGHTS ACCRUED THERETOFORE AND STILL SUBSISTING,"
AND SUBJECTED THEM TO THE RESTRICTION "THAT THE TAXPAYER (A) MUST SHOW
THAT HE ALONE HAS BORNE THE BURDEN OF THE TAX, OR (B) IF HE HAS SHIFTED
THE BURDEN TO THE PURCHASERS, MUST GIVE A BOND PROMPTLY TO USE THE
REFUNDED SUM IN REIMBURSING THEM."  ID., P. 401.  BUT WE WERE UNABLE TO
CONCLUDE THAT IN IMPOSING THIS RESTRICTION THE SECTION STRUCK DOWN
PRIOR RIGHTS OR DID MORE "THAN TO REQUIRE THAT IT BE SHOWN OR MADE
CERTAIN THAT THE MONEY WHEN REFUNDED WILL GO TO THE ONE WHO HAS BORNE
THE BURDEN OF THE ILLEGAL TAX, AND THEREFORE IS ENTITLED IN JUSTICE AND
GOOD CONSCIENCE TO SUCH RELIEF."  WE HELD THAT THERE WAS NO
INFRINGEMENT OF DUE PROCESS OF LAW IN THAT RESTRICTION OR IN PLACING
UPON THE CLAIMANT THE BURDEN OF PROOF.  WE SAID (ID., P. 402): 

"IF THE TAXPAYER HAS BORNE THE BURDEN OF THE TAX, HE READILY CAN SHOW
IT; AND CERTAINLY THERE IS NOTHING ARBITRARY IN REQUIRING THAT HE MAKE
SUCH A SHOWING.  IF HE HAS SHIFTED THE BURDEN TO THE PURCHASERS, THEY
AND NOT HE HAVE BEEN THE ACTUAL SUFFERERS AND ARE THE REAL PARTIES IN
INTEREST; AND IN SUCH A SITUATION THERE IS NOTHING ARBITRARY IN
REQUIRING, AS A CONDITION TO REFUNDING THE TAX TO HIM, THAT HE GIVE A
BOND TO USE THE REFUNDED MONEY IN REIMBURSING THEM." 

THE OPPOSING CONTENTION WAS FOUND TO BE PARTICULARLY FAULTY IN THAT
IT OVERLOOKED THE FACT THAT THE STATUTES PROVIDING FOR REFUNDS PROCEED
ON THE SAME EQUITABLE PRINCIPLES THAT UNDERLIE AN ACTION IN ASSUMPSIT
FOR MONEY HAD AND RECEIVED.  THAT ACTION "AIMS AT THE ABSTRACT JUSTICE
OF THE CASE, AND LOOKS SOLELY TO THE INQUIRY, WHETHER THE DEFENDANT
HOLDS MONEY, WHICH EX AEQUO ET BONO BELONGS TO THE PLAINTIFF."  ID., P.
403. 

THE CIRCUMSTANCE THAT UNDER TITLE VII, HERE INVOLVED, THERE IS NO
PROVISION FOR MAKING A REFUND TO PARTICULAR PERSONS, TO WHOM THE BURDEN
OF THE INVALID EXACTION MAY BE FOUND TO HAVE BEEN SHIFTED, PRESENTS NO
SOUND DISTINCTION SO FAR AS THE CLAIMANT IS CONCERNED.  THE CONTROLLING
PRINCIPLE IS THAT THERE IS NO DENIAL OF CONSTITUTIONAL RIGHT IN
REQUIRING THE CLAIMANT TO SHOW, WHERE IT CAN BE SHOWN, THAT HE ALONE
HAS BORNE THE BURDEN OF THE INVALID TAX AND HAS NOT SHIFTED IT TO
OTHERS. 

APART FROM THIS QUESTION, THE GRAVAMEN OF PETITIONER'S COMPLAINT IS
THAT SEC. 902 DEMANDS THE IMPOSSIBLE; THAT IT SETS UP A CONDITION OF
RECOVERY WHICH IN PETITIONER'S CASE CANNOT POSSIBLY BE MET.  THAT IS,
THAT THE STATUTE NOT ONLY REQUIRES THE CLAIMANT TO SHOW THAT THE BURDEN
OF THE TAX HAS NOT BEEN SHIFTED, WHERE THAT CAN BE SHOWN, BUT BARS
RECOVERY WHERE IN THE NATURE OF THE CASE THAT CANNOT BE SHOWN. 
PETITIONER CONTENDS THAT IT IS WITHIN THE LATTER CLASS.  IN ITS AMENDED
COMPLAINT, PETITIONER SETS FORTH AT LENGTH THE FEATURES OF THE
OPERATION OF A COTTON MILL SUCH AS ITS OWN.  BY REASON OF THE NATURE OF
THESE OPERATIONS PETITIONER ASSERTS THAT THERE IS "AN INHERENT
IMPOSSIBILITY" OF PROVING WHETHER OR TO WHAT EXTENT THE BURDEN OF THE
TAXES PAID HAS BEEN SHIFTED TO OTHERS. 

THIS ALLEGATION IS AT BEST BUT A STATEMENT OF A LEGAL CONCLUSION
WHICH MUST DEPEND UPON THE FACTS AS THEY APPEAR WHEN PROOF IS TAKEN. 
THE QUESTION IS WHETHER THE PETITIONER IS ENTITLED TO INSIST AS A
MATTER OF CONSTITUTIONAL RIGHT UPON TRYING OUT THE QUESTION OF
IMPOSSIBILITY IN THIS SUIT RATHER THAN IN AN ADMINISTRATIVE PROCEEDING
WHERE ALL THE PERTINENT FACTS AS TO THE COURSE OF BUSINESS MAY BE
PRESENTED AND THE CONCLUSIONS THEY REQUIRE BOTH OF FACT AND LAW MAY BE
REACHED.  THIS ASSERTION OF SUCH A CONSTITUTIONAL RIGHT RESTS UPON A
CONSTRUCTION OF SEC. 902 TO THE EFFECT THAT IF THE FACTS, FULLY
DISCLOSED, AFFORDED NO BASIS FOR ANY DETERMINATION AS TO THE SHIFTING
OF THE BURDEN OF THE TAX, AND HENCE GAVE NO WARRANT FOR A FINDING THAT
THE BURDEN HAD BEEN SHIFTED FROM THE CLAIMANT TO OTHERS, STILL THE
STATUTE WOULD REQUIRE A DENIAL OF THE RIGHT TO A REFUND.  THE CLAIMANT
WOULD THEN STAND, BY VIRTUE OF THE INJURY CAUSED BY THE PAYMENT OF THE
TAX, NOT AS ONE SEEKING RELIEF WHEN HE HAD NOT BEEN HURT, BUT AS ONE
WHO HAD BEEN HURT BY A PAYMENT UNCONSTITUTIONALLY REQUIRED AND WHOSE
PROVED INJURY COULD NOT BE SAID TO HAVE BEEN REDRESSED.  IT IS IN THAT
ASPECT THAT THE STATUTE IS ASSAILED AS LEAVING THE CLAIMANT WITHOUT
REMEDY FOR A DEPRIVATION OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW. 

DESPITE THE BROAD LANGUAGE OF SEC. 902, WE DO NOT THINK THAT IT
SHOULD BE CONSTRUED AS INTENDED TO DENY A REFUND IN ANY CASE WHERE A
CLAIMANT IS CONSTITUTIONALLY ENTITLED TO IT.  WE APPLY THE FAMILIAR
CANNON WHICH MAKES IT OUR DUTY, OF TWO POSSIBLE CONSTRUCTIONS, TO ADOPT
THE ONE WHICH WILL SAVE AND NOT DESTROY.  WE CANNOT ATTRIBUTE TO
CONGRESS AN INTENT TO DEFY THE FIFTH AMENDMENT OR "EVEN TO COME SO NEAR
TO DOING SO AS TO RAISE A SERIOUS QUESTION OF CONSTITUTIONAL LAW." 
FEDERAL TRADE COMM'N V. AMERICAN TOBACCO CO., 264 U.S. 298, 307; PANAMA
R. CO. V. JOHNSON, 264 U.S. 375, 390; BLODGETT V. HOLDEN, 275 U.S. 142,
148.  WHEN THE CONGRESS REQUIRES THE CLAIMANT, WHO HAS PAID THE INVALID
TAX, TO SHOW THAT HE HAS NOT BEEN REIMBURSED OR HAS NOT SHIFTED ITS
BURDEN, THE PROVISION SHOULD NOT BE CONSTRUED AS DEMANDING THE
PERFORMANCE OF A TASK, IF ULTIMATELY FOUND TO BE INHERENTLY IMPOSSIBLE,
AS A CONDITION OF RELIEF TO WHICH THE CLAIMANT WOULD OTHERWISE BE
ENTITLED.  THERE IS AMPLE ROOM FOR THE PLAY OF THE STATUTE WITHIN THE
RANGE OF POSSIBLE DETERMINATIONS.  IMPOSSIBILITY OF PROOF MAY NOT BE
ASSUMED.  IT CANNOT BE DOUBTED THAT THE REQUIREMENT HAS APPROPRIATE AND
VALID EFFECT IN PLACING UPON THE CLAIMANT THE DUTY TO PRESENT FULLY ALL
THE FACTS PERTAINING TO THE QUESTION OF THE SHIFTING OF THE BURDEN OF
THE TAX AND IN DENYING RELIEF WHERE THE FACTS JUSTIFY A CONCLUSION THAT
THE BURDEN HAS BEEN SHIFTED FROM THE CLAIMANT TO OTHERS.  WHEN THE
FACTS HAVE BEEN SHOWN IT BECOMES THE DUTY OF THE BOARD OF REVIEW TO
MAKE ITS DETERMINATION ACCORDING TO THE LEGAL RIGHTS OF THE CLAIMANT. 
THAT IS THE NECESSARY IMPORT OF THE PROVISION FOR JUDICIAL REVIEW,
GIVING AUTHORITY TO THE REVIEWING COURT TO MODIFY OR REVERSE THE
DECISION OF THE BOARD "IF IT IS NOT IN ACCORDANCE WITH LAW."  FINDINGS
THAT CAN PROPERLY BE MADE UPON THE EVIDENCE MUST THUS SUPPORT A
DECISION ACCORDING TO LEGAL RIGHT.  AND, AS WE HAVE SEEN, THE REVIEWING
COURT, AND FINALLY THIS COURT, MAY DIRECT THE BOARD "TO ENTER ANY
DESIGNATED JUDGMENT"  FN3 TO WHICH THE CLAIMANT IS CONSTITUTIONALLY
ENTITLED AND THE COMMISSIONER MUST REFUND THE AMOUNT THUS DETERMINED TO
BE DUE. 

IN SAYING THIS, WE ARE NOT PASSING UPON THE CONSTITUTIONAL RIGHT OF
PETITIONER TO A REFUND OR UPON THE QUESTION WHETHER IN ITS CASE THE
SHIFTING OF THE BURDEN OF THE TAX IS OR IS NOT "SUSCEPTIBLE OF PROOF." 
CONSTITUTIONAL QUESTIONS ARE NOT TO BE DECIDED HYPOTHETICALLY.  WHEN
PARTICULAR FACTS CONTROL THE DECISION THEY MUST BE SHOWN.  BORDEN'S
FARM PRODUCTS CO. V. BALDWIN, 293 U.S. 194, 208-210.  PETITIONER'S
CONTENTION AS TO IMPOSSIBILITY OF PROOF IS PREMATURE.  MANIFESTLY THERE
IS NO IMPOSSIBILITY SO FAR AS THE PRODUCTION OF PROOF OF PETITIONER'S
OPERATIONS OR COURSE OF BUSINESS IS CONCERNED.  WHAT IS MEANT BY
IMPOSSIBILITY OF PROOF IS IMPOSSIBILITY OF DETERMINATION AFTER THESE
FACTS ARE IN.  WHETHER OR NOT ANY SUCH IMPOSSIBILITY OF DETERMINATION
WILL EXIST IS A QUESTION WHICH PROPERLY SHOULD AWAIT THE ASCERTAINMENT
OF THE FACTS.  FOR THE PRESENT PURPOSE IT IS SUFFICIENT TO HOLD, AND WE
DO HOLD, THAT THE PETITIONER MAY CONSTITUTIONALLY BE REQUIRED TO
PRESENT ALL THE PERTINENT FACTS IN THE PRESCRIBED ADMINISTRATIVE
PROCEEDING AND MAY THERE RAISE, AND ULTIMATELY MAY PRESENT FOR JUDICIAL
REVIEW, ANY LEGAL QUESTION WHICH MAY ARISE AS THE FACTS ARE DEVELOPED. 

THESE CONSIDERATIONS ALSO DISPOSE OF THE CONTENTION THAT SEC. 902 "IS
SO VAGUE AND UNCERTAIN THAT IT IS MEANINGLESS, AND THEREFORE AFFORDS NO
REMEDY."  IT IS NOT NECESSARY FOR THE CONGRESS, IN INSISTING THAT A
CLAIMANT SHOULD NOT RECOVER WHERE IT APPEARED THAT HE HAD NOT BORNE THE
BURDEN OF THE TAX, TO ATTEMPT TO FORMULATE THE CONCLUSIONS WHICH WOULD
BE APPROPRIATE UPON VARYING STATES OF FACT.  PETITIONER'S ARGUMENT,
DRAWN FROM THE WRITINGS OF ECONOMISTS, IS ITSELF SUFFICIENT TO SHOW THE
FUTILITY OF SUCH AN EFFORT.  THE CONGRESS COULD, AND DID, LAY DOWN A
GENERAL PRINCIPLE AND LEAVE ITS APPLICATION TO THE FACTS AS THEY WOULD
APPEAR IN PARTICULAR INSTANCES IN A PROCEEDING ADAPTED TO THEIR FULL
DISCLOSURE.  THE GENERAL PRINCIPLE THUS LAID DOWN IS NO MORE VAGUE AND
INDEFINITE THAN THE EQUITABLE DOCTRINE WHICH GOVERNS THE RIGHT OF
RECOVERY IN ACTIONS FOR MONEY HAD AND RECEIVED. 

THE PRESUMPTIONS UNDER SEC. 907.  - PETITIONER ALSO CONTESTS THE
VALIDITY OF THE ADMINISTRATIVE PROCEEDING BECAUSE OF THE RULES OF
EVIDENCE AND PRESUMPTIONS WHICH THE STATUTE ESTABLISHES.  SECTION 907
PROVIDES, WITH RESPECT TO PROCESSING TAXES, THAT IT "SHALL BE PRIMA
FACIE EVIDENCE THAT THE BURDEN OF SUCH AMOUNT WAS BORNE BY THE CLAIMANT
TO THE EXTENT (NOT TO EXCEED THE AMOUNT OF THE TAX) THAT THE AVERAGE
MARGIN PER UNIT OF THE COMMODITY PROCESSED WAS LOWER DURING THE TAX
PERIOD THAN THE AVERAGE MARGIN WAS DURING THE PERIOD BEFORE AND AFTER
THE TAX"; AND THAT "IF THE AVERAGE MARGIN DURING THE TAX PERIOD WAS NOT
LOWER, IT SHALL BE PRIMA FACIE EVIDENCE THAT NONE OF THE BURDEN OF SUCH
AMOUNT WAS BORNE BY THE CLAIMANT BUT THAT IT WAS SHIFTED TO OTHERS." 

THE "TAX PERIOD" IS DEFINED AS THE PERIOD IN WHICH THE CLAIMANT
ACTUALLY PAID THE TAX TO A COLLECTOR AND ENDS WITH THE LAST PAYMENT. 
THE "PERIOD BEFORE AND AFTER THE TAX" IS DEFINED AS "THE TWENTY-FOUR
MONTHS (EXCEPT THAT IN THE CASE OF TOBACCO IT SHALL BE THE TWELVE
MONTHS) IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE PROCESSING TAX,
AND THE SIX MONTHS, FEBRUARY TO JULY, 1936, INCLUSIVE."  PROVISION IS
MADE FOR THE COMPUTATION OF WHAT IS CALLED THE "AVERAGE MARGIN" FOR THE
RESPECTIVE PERIODS, THE "MARGIN" BEING DETERMINED BY DEDUCTING FROM THE
GROSS SALES VALUE OF ARTICLES PROCESSED THE COST OF THE COMMODITY
PROCESSED AND THE PROCESSING TAX. 

PETITIONER CONTENDS THAT THE PRESUMPTIONS ARE ENTIRELY ARBITRARY AND
THEREFORE UNCONSTITUTIONAL.  THERE IS A GENERAL ALLEGATION TO THAT
EFFECT IN PETITIONER'S AMENDED COMPLAINT.  BUT IT CANNOT BE SAID THAT
THE COMPARISONS SET UP BETWEEN THE RESULTS OF OPERATIONS DURING THE
"TAX PERIOD" AND THE "PERIOD BEFORE AND AFTER THE TAX" ARE WHOLLY
IRRELEVANT.  NOR CAN IT NOW BE DETERMINED WHAT WILL BE THE EFFECT OF
THE PRESUMPTIONS.  WHILE PETITIONER ASSAILS THEM, ITS COMPLAINT
CONTAINS NO ALLEGATION AS TO THEIR ACTUAL EFFECT IN RELATION TO
PETITIONER'S OPERATIONS.  NON CONSTAT BUT THAT THEY MAY WORK TO
PETITIONER'S ADVANTAGE.  FOR ALL THAT WE KNOW THE PRESUMPTION MAY
ESTABLISH PRIMA FACIE THAT PETITIONER HAS BORNE THE BURDEN OF THE TAX. 
PETITIONER INVITES US TO ENTER INTO A PURELY SPECULATIVE INQUIRY FOR
THE PURPOSE OF CONDEMNING STATUTORY PROVISIONS WHICH HAVE NOT BEEN
TRIED OUT AND THE EFFECT OF WHICH CANNOT NOW BE DEFINITELY PERCEIVED. 
WE MUST DECLINE THAT INVITATION AND ADHERE TO THE FUNDAMENTAL PRINCIPLE
WHICH GOVERNS OUR DETERMINATION OF CONSTITUTIONAL QUESTIONS. 
LIVERPOOL, NEW YORK & PHILADELPHIA STEAMSHIP CO. V. COMMISSIONERS, 113
U.S. 33, 39; CINCINNATI V. VESTER, 281 U.S. 439, 448, 449; ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 324.    THE STATED
PRESUMPTIONS ARE REBUTTABLE.  IF THEY WORK ADVERSELY TO ITS INTERESTS,
PETITIONER WILL HAVE AMPLE OPPORTUNITY TO PROVE ALL THE REBUTTING
FACTS.  SECTION 907(E) PROVIDES THAT EITHER THE CLAIMANT OR THE
COMMISSIONER MAY REBUT THE PRESUMPTIONS "BY PROOF OF THE ACTUAL EXTENT
TO WHICH THE CLAIMANT SHIFTED TO OTHERS THE BURDENS OF THE PROCESSING
TAX."  THERE FOLLOWS A DETAILED PROVISION AS TO WHAT SUCH PROOF MAY
INCLUDE.  BUT THAT PROVISION IS NOT EXCLUSIVE.  IT IS EXPRESSLY STATED
THAT THE PROOF IN REBUTTAL SHALL NOT BE LIMITED TO WHAT IS THUS
DESCRIBED.  PETITIONER URGES THAT THE STATUTE REQUIRES THAT THIS PROOF
SHALL BE OF THE "ACTUAL EXTENT" TO WHICH THE BURDEN OF THE TAX HAS BEEN
SHIFTED, AND RECURS TO THE ARGUMENT AS TO THE INHERENT IMPOSSIBILITY OF
PRODUCING SUCH PROOF.  WHAT WE HAVE ALREADY SAID WITH RESPECT TO THAT
ARGUMENT IS APPLICABLE IN THIS CONNECTION.  WE DO NOT THINK THAT
CONGRESS WAS ATTEMPTING TO REQUIRE THE IMPOSSIBLE.  THE PERMISSIBLE,
AND WE THINK THE TRUE, CONSTRUCTION OF SEC. 907(E) IS THAT THE WORDS
"ACTUAL EXTENT" ARE USED IN CONTRADISTINCTION TO THE PRESUMED EXTENT,
ACCORDING TO THE PRIMA FACIE PRESUMPTION TO WHICH THE PROOF IN REBUTTAL
IS ADDRESSED.  IN THE LIGHT OF THE CONTEXT, AND OF THE ENTIRE SCHEME OF
THE ADMINISTRATIVE PROCEEDING, WE ARE OF THE OPINION THAT THE PROVISION
WAS INTENDED TO AFFORD, AND DOES AFFORD, FULL OPPORTUNITY TO THE
CLAIMANT TO PRESENT ANY EVIDENCE WHICH MAY BE PERTINENT TO THE
QUESTIONS TO BE DETERMINED BY THE BOARD OF REVIEW AND WHICH MAY BE
APPROPRIATE TO OVERCOME ANY PRESUMPTION WHICH MIGHT BE INDULGED EITHER
UNDER SEC. 907(A) OR OTHERWISE. 

PROCEDURAL DUE PROCESS IN THE CONDUCT OF THE ADMINISTRATIVE HEARING. 
- PETITIONER ALSO COMPLAINS THAT UNDER SEC. 906(D) THE HEARING IS TO BE
CONDUCTED, NOT BY THE BOARD OF REVIEW, OR A DIVISION THEREOF, BUT BY A
"PRESIDING OFFICER" DESIGNATED BY THE SECRETARY OF THE TREASURY; AND
THAT UNDER SEC. 906(E) THE PRESIDING OFFICER IS TO RECOMMEND TO THE
BOARD, OR A DIVISION, FINDINGS OF FACT AND A DECISION.  PETITIONER
URGES THAT THE BOARD, OR ITS DIVISION, IS NOT REQUIRED BY THE STATUTE
TO CONSIDER THE EVIDENCE AND HENCE THAT THE PROCEDURE CONTEMPLATED BY
SEC. 906 DOES NOT MEET THE REQUIREMENTS OF DUE PROCESS.  WE FIND NO
MERIT IN THESE CONTENTIONS.  THERE IS NO PROVISION OF THE STATUTE WHICH
IS NECESSARILY INCONSISTENT WITH THE OBSERVANCE OF THE DUE PROCESS
REQUIRED IN HEARINGS BY ADMINISTRATIVE BODIES.  INTERSTATE COMMERCE
COMM'N V. LOUISVILLE & N.R. CO., 227 U.S. 88, 91; UNITED STATES V.
ABILENE & SOUTHERN RY. CO., 265 U.S. 274, 288; MORGAN V. UNITED STATES,
298 U.S. 468, 480, 481; OHIO BELL TELEPHONE CO. V. PUBLIC UTILITIES
COMM'N, ANTE, P. 292.  "THE PROVISION FOR A HEARING IMPLIES BOTH THE
PRIVILEGE OF INTRODUCING EVIDENCE AND THE DUTY OF DECIDING IN
ACCORDANCE WITH IT."  CHICAGO JUNCTION CASE, 264 U.S. 258, 265. 
WHATEVER THE PRIVILEGE OR DUTY OF THE PRESIDING OFFICER, AND WHATEVER
MAY BE HIS RECOMMENDATION, THE STATUTE REQUIRES THAT "THE BOARD OR A
DIVISION SHALL MAKE ITS FINDINGS OF FACT AND DECISION IN WRITING" AND
SHALL CERTIFY AND FILE WITH THE COURT ON JUDICIAL REVIEW A TRANSCRIPT
OF THE RECORD UPON WHICH ITS FINDINGS AND DECISION ARE BASED.  THE
COURT HAS JURISDICTION "TO AFFIRM THE DECISION OF THE BOARD OR TO
MODIFY OR REVERSE SUCH DECISION."  IF ADDITIONAL EVIDENCE IS TAKEN "THE
BOARD MAY MODIFY ITS FINDINGS OF FACT AND DECISION" BY REASON OF SUCH
EVIDENCE.  THE WHOLE SCHEME OF THE ADMINISTRATIVE PROCEEDING
PRESUPPOSES HEARING AND DETERMINATION IN ACCORDANCE WITH THE DEMANDS OF
DUE PROCESS.  THE BOARD WHICH MAKES ITS FINDINGS AND RENDERS ITS
DECISION MUST CONSIDER THE EVIDENCE AND BASE ITS FINDINGS AND DECISION
UPON IT, AND UNTIL THE CONTRARY APPEARS WE MUST ASSUME THAT THE BOARD
WILL DO SO.  MORGAN V. UNITED STATES, SUPRA. 

WE CONCLUDE THAT THE AUTHORIZED PROCEDURE PROVIDES FOR A FULL AND
FAIR HEARING AND DETERMINATION OF ALL MATTERS OF FACT AND THAT, THROUGH
JUDICIAL REVIEW, IT PROVIDES FOR THE PROTECTION OF ALL THE LEGAL RIGHTS
OF THE PETITIONER INCLUDING ANY CONSTITUTIONAL RIGHT WHICH IT MAY BE
ENTITLED TO INVOKE WITH RESPECT TO THE REFUND WHICH IT SEEKS.  THE
PETITIONER MAY THUS OBTAIN THROUGH THIS PROCEEDING WHATEVER JUDGMENT
ITS CASE WARRANTS, A JUDGMENT WHICH THE GOVERNMENT, BY VIRTUE OF THE
REQUIREMENT THAT THE COMMISSIONER SHALL MAKE REFUND ACCORDINGLY, BINDS
ITSELF TO PAY. 

THE JUDGMENT OF DISMISSAL IS AFFIRMED, BUT UPON THE GROUNDS STATED IN
THIS OPINION.  AFFIRMED. 

FN1  UPON THIS POINT THE GOVERNMENT STATES IN ITS BRIEF (PP. 104,
105): 

"THE ESTABLISHED RULE AS TO THE PROPER SCOPE OF CONSTITUTIONAL
LITIGATION CAN BE APPLIED IN THIS CASE WITH NO DANGER OF INJURY TO
PETITIONER.  IF, UPON AN APPROPRIATE RECORD AND IN THE LIGHT OF AN
ACTUAL ATTEMPT BY THE TAXPAYER TO SHOW THE INCIDENCE OF THE PROCESSING
TAX, THIS COURT SHOULD HOLD ANY PART OF TITLE VII INVALID, THE TAXPAYER
MAY RECOVER ALL OF THE TAXES TO WHICH HE IS ENTITLED UNDER SUCH A
DECISION, WITH INTEREST AT 6 PER CENT PER ANNUM (SEC. 908(A); SEC.
614(A) OF THE REVENUE ACT OF 1928, C. 852, 45 STAT. 791).  FOR, WHETHER
OR NOT SECTION 902 AND SECTION 907 BE HELD INVALID, THE BOARD OF REVIEW
WOULD STILL REMAIN AS A MECHANICAL MEANS BY WHICH TO ENFORCE THE
DECISION OF A CIRCUIT COURT OF APPEALS OR OF THIS COURT.  EVEN IF
PAYMENT OF AGRICULTURAL ADJUSTMENT ACT TAXES, THE BOARD OF REVIEW WOULD
STILL HAVE JURISDICTION TO REVIEW THE ALLOWANCE OR DISALLOWANCE OF ANY
CLAIM, AND THE CIRCUIT COURTS OF APPEALS AND THIS COURT WOULD STILL
HAVE POWER TO DIRECT THE BOARD TO ENTER ANY DESIGNATED JUDGMENT.  AND
SUCH AMOUNT DETERMINED BY A DECISION OF THE BOARD WHICH HAS BECOME
FINAL.'" 

FN2  SEC. 902.  CONDITIONS ON ALLOWANCE OF REFUNDS. 

"NO REFUND SHALL BE MADE OR ALLOWED, IN PURSUANCE OF COURT DECISIONS
OR OTHERWISE, OF ANY AMOUNT PAID BY OR COLLECTED FROM ANY CLAIMANT AS
TAX UNDER THE AGRICULTURAL ADJUSTMENT ACT, UNLESS THE CLAIMANT
ESTABLISHES TO THE SATISFACTION OF THE COMMISSIONER IN ACCORDANCE WITH
REGULATIONS PRESCRIBED BY HIM, WITH THE APPROVAL OF THE SECRETARY, OR
TO THE SATISFACTION OF THE TRIAL COURT, OR THE BOARD OF REVIEW IN CASES
PROVIDED FOR UNDER SECTION 906, AS THE CASE MAY BE - 

"(A)  THAT HE BORE THE BURDEN OF SUCH AMOUNT AND HAS NOT BEEN
RELIEVED THEREOF NOR REIMBURSED THEREFOR NOR SHIFTED SUCH BURDEN,
DIRECTLY OR INDIRECTLY, (1) THROUGH INCLUSION OF SUCH AMOUNT BY THE
CLAIMANT, OR BY ANY PERSON DIRECTLY OR INDIRECTLY UNDER HIS CONTROL, OR
HAVING CONTROL OVER HIM, OR SUBJECT TO THE SAME COMMON CONTROL, IN THE
PRICE OF ANY ARTICLE WITH RESPECT TO WHICH A TAX WAS IMPOSED UNDER THE
PROVISIONS OF SUCH ACT, OR IN THE PRICE OF ANY ARTICLE PROCESSED FROM
ANY COMMODITY WITH RESPECT TO WHICH A TAX WAS IMPOSED UNDER SUCH ACT,
OR IN ANY CHARGE OR FEE FOR SERVICES OR PROCESSING; (2) THROUGH
REDUCTION OF THE PRICE PAID FOR ANY SUCH COMMODITY; OR (3) IN ANY
MANNER WHATSOEVER; AND THAT NO UNDERSTANDING OR AGREEMENT, WRITTEN OR
ORAL, EXISTS WHEREBY HE MAY BE RELIEVED OF THE BURDEN OF SUCH AMOUNT,
BE REIMBURSED THEREFOR, OR MAY SHIFT THE BURDEN THEREOF, OR 

"(B)  THAT HE HAS REPAID UNCONDITIONALLY SUCH AMOUNT TO HIS VENDEE
(1) WHO BORE THE BURDEN THEREOF, (2) WHO HAS NOT BEEN RELIEVED THEREOF
NOR REIMBURSED THEREFOR, NOR SHIFTED SUCH BURDEN, DIRECTLY OR
INDIRECTLY, AND (3) WHO IS NOT ENTITLED TO RECEIVE ANY REIMBURSEMENT
THEREFOR FROM ANY OTHER SOURCE, OR TO BE RELIEVED OF SUCH BURDEN IN ANY
MANNER WHATSOEVER." 

FN3  SEE NOTE 1. 

MR. JUSTICE STONE AND MR. JUSTICE CARDOZO CONCUR IN THE OPINION SAVE
THAT THEY RESERVE THEIR VOTE AS TO THE CONSTITUTIONAL OR STATUTORY
RIGHTS OF THE TAXPAYER IN THE EVENT THAT IT SHALL BE IMPOSSIBLE TO
ASCERTAIN WHETHER THERE HAS BEEN A SHIFTING OF THE TAX, AN EXAMINATION
OF THOSE RIGHTS, IN THEIR JUDGMENT, BEING UNNECESSARY NOW, SINCE
"IMPOSSIBILITY OF PROOF," IN THE LANGUAGE OF THE OPINION, "MAY NOT BE
ASSUMED." 

MR. JUSTICE MCREYNOLDS DISSENTS. 
..END :






















CHIPPEWA INDIANS V. U.S., 301 U.S. 358 


NO. 228.  ARGUED FEBRUARY 2, 1937.  - DECIDED MAY 17, 1937.  - 80 CT.
CLS. 410, AFFIRMED. 


1.  IN A SUIT UNDER PERMISSIVE LEGISLATION BY THE CHIPPEWA INDIANS OF
MINNESOTA AGAINST THE UNITED STATES, TO RECOVER THE VALUE OF 663,421
ACRES OF LAND, COMPRISING THE "DIMINISHED RED LAKE RESERVATION,"
ALLEGED TO HAVE BEEN CEDED TO THE UNITED STATES UNDER THE ACT OF
JANUARY 14, 1889, IN TRUST FOR THE BENEFIT OF THE PLAINTIFFS AND
SUBSEQUENTLY DISPOSED OF OR APPROPRIATED BY THE UNITED STATES IN
DISREGARD OF THE TRUST AND OF THE RIGHTS OF THE PLAINTIFFS, HELD: 

(1)  THAT THE QUESTION WHO HAD THE INDIAN TITLE TO THE LANDS IN THE
RED LAKE RESERVATION PRIOR TO AND AT THE TIME OF THE CESSION WAS
MATERIAL.  P. 372. 

(2)  THE INDIAN TITLE TO THE LANDS IN THE RED LAKE RESERVATION PRIOR
TO AND AT THE TIME OF THE CESSION WAS IN THE RED LAKE BANDS.  A
CONTRARY OPINION IN A REPORT OF THE COMMITTEE OF THE HOUSE OF
REPRESENTATIVES ACCOMPANYING THE BILL WHICH, WITH AMENDMENTS, BECAME
THE ACT OF JANUARY 14, 1889, WAS BASED ON A MISAPPREHENSION OF THE
SITUATION.  P. 372. 

(3)  THE ACT OF JANUARY 14, 1889, THOUGH DECLARING THAT AS TO THE RED
LAKE RESERVATION THE CESSION SHOULD BE SUFFICIENT IF MADE BY "TWO
THIRDS OF THE MALE ADULTS OF ALL THE CHIPPEWA INDIANS IN MINNESOTA,"
SHOULD BE CONSTRUED, TAKEN AS A WHOLE, AS REQUIRING IN ADDITION THE
CONSENT OF TWO-THIRDS OF THE MALE ADULTS OF THE BANDS OCCUPYING THAT
PARTICULAR RESERVATION.  P. 375. 

(4)  THE CESSION BY THE RED LAKE BANDS RESERVED ALL OF THE LANDS
DESCRIBED IN THEIR INSTRUMENT OF CESSION AS RESERVED FOR ALLOTMENTS,
NOT MERELY THE PART OF THE LANDS SO DESCRIBED WHICH WAS ACTUALLY
REQUIRED TO MAKE AND FILL ALLOTMENTS AT THE TIME.  P. 377. 

(5)  LANDS OF THE RED LAKE RESERVATION WHICH WERE INTENDED TO BE
RESERVED FOR ALLOTMENTS BUT BY MUTUAL MISTAKE WERE INCLUDED IN THE
CESSION UNDER THE ACT OF 1889 AND WHICH WERE LATER ADDED TO THE
RESERVED LANDS BY AN EXECUTIVE ORDER, ARE NOT, IN EQUITY, A PART OF THE
CEDED AREAS.  P. 378. 

(6)  AN ACT OF FEBRUARY 20, 1904, ADOPTING AN AGREEMENT BETWEEN THE
UNITED STATES AND THE RED LAKE INDIANS CEDING IN TRUST A PORTION OF
THEIR DIMINISHED RESERVATION,  - HELD OF NO AID TO THE PLAINTIFFS'
CLAIM IN THIS CASE.  P. 379. 

2.  THE POWER OF THE GOVERNMENT TO CONTROL AND MANAGE THE PROPERTY OF
ITS INDIAN WARDS IS SUBJECT TO CONSTITUTIONAL LIMITATIONS; THE LANDS OF
ONE TRIBE MAY NOT BE GIVEN TO ANOTHER, NOR MAY THE GOVERNMENT DEAL WITH
THE LANDS AS ITS OWN.  P. 375. 

3.  AN ACT OF CONGRESS SHOULD NOT BE SO CONSTRUED AS TO IMPERIL ITS
VALIDITY, IF THIS MAY REASONABLY BE AVOIDED.  P. 376. 

CHIPPEWA INDIANS OF MINNESOTA V. UNITED STATES ET AL. 

APPEAL FROM THE COURT OF CLAIMS. 

APPEAL FROM A JUDGMENT OF THE COURT OF CLAIMS DISMISSING THE PETITION
IN A SUIT BROUGHT BY THE CHIPPEWA INDIANS OF MINNESOTA AGAINST THE
UNITED STATES TO RECOVER THE VALUE OF LANDS ALLEGED TO HAVE BEEN HELD
IN TRUST FOR THE PLAINTIFFS AND TO HAVE BEEN DISPOSED OF OR
APPROPRIATED IN VIOLATION OF THE RIGHTS OF THE INDIANS.  THE RED LAKE
BAND OF CHIPPEWAS INTERVENED IN OPPOSITION TO THE PLAINTIFFS' CLAIM. 

MR. JUSTICE VAN DEVANTER DELIVERED THE OPINION OF THE COURT. 

THIS WAS A SUIT BY THE CHIPPEWA INDIANS OF MINNESOTA AGAINST THE
UNITED STATES TO RECOVER THE VALUE OF 663,421 ACRES OF LAND ALLEGED TO
HAVE BEEN CEDED TO THE DEFENDANT UNDER AN EXPRESS TRUST FOR THE BENEFIT
OF THE PLAINTIFFS AND SUBSEQUENTLY DISPOSED OF OR APPROPRIATED BY THE
DEFENDANT IN DISREGARD OF THE TRUST AND OF THE RIGHTS OF THE
PLAINTIFFS.  THIS 663,421 ACRES COMPRISED WHAT IS HEREINAFTER DESCRIBED
AS THE DIMINISHED RED LAKE RESERVATION. 

THE SUIT WAS BROUGHT AND CONDUCTED UNDER PERMISSIVE LEGISLATION.  FN1
THE DEFENDANT TRAVERSED THE ALLEGATIONS OF THE PLAINTIFFS' PETITION;
AND BY LEAVE OF COURT, AND IN VIRTUE OF AUTHORITY GIVEN IN THE
PERMISSIVE LEGISLATION, THE RED LAKE BAND OF CHIPPEWAS INTERVENED FOR
THE PURPOSE OF OPPOSING THE PLAINTIFFS' CLAIM AND OF PROTECTING ITS OWN
INTERESTS.  AFTER A FULL HEARING THE COURT MADE SPECIAL FINDINGS OF
FACT AND RENDERED A JUDGMENT FOR THE DEFENDANT.  80 CT. CLS. 410.  THE
PLAINTIFFS WERE ALLOWED AN APPEAL TO THIS COURT UNDER A SPECIAL
SUPPLEMENT TO THE PERMISSIVE LEGISLATION. 

THE CHIPPEWA INDIANS OF MINNESOTA, PLAINTIFFS BELOW AND APPELLANTS
HERE, COMPRISE THOSE WHO ARE DESIGNATED IN THE ACT OF JANUARY 14, 1889,
INFRA, AS "ALL THE CHIPPEWA INDIANS OF MINNESOTA," OTHERWISE DESCRIBED
IN THE PERMISSIVE LEGISLATION ALREADY MENTIONED,  FN2  AS ALL WHO ARE
"ENTITLED TO SHARE IN THE FINAL DISTRIBUTION OF THE PERMANENT FUND"
PROVIDED FOR IN SEC. 7 OF THE ACT OF 1889. 

THE FINDINGS BELOW ARE TOO LONG TO BE REPEATED HERE AND WILL BE MUCH
SUMMARIZED. 

ABOUT THE BEGINNING OF THE LAST CENTURY THE CHIPPEWAS CONSTITUTED ONE
OF THE LARGER INDIAN TRIBES IN THE NORTHERLY PART OF THE UNITED
STATES.  IN EARLY TREATIES THEY WERE DEALT WITH AS A SINGLE TRIBE AND
WERE SHOWN TO BE OCCUPYING A LARGE AREA REACHING FROM LAKE HURON ON THE
EAST TO AND BEYOND LAKE SUPERIOR ON THE WEST.  FN3  IN LATER TREATIES
THEY WERE REGARDED AS DIVIDED INTO DISTINCT BANDS; AND PARTICULAR BANDS
- IN SOME INSTANCES A SINGLE BAND AND IN OTHERS A LIMITED PLURALITY OF
BANDS - WERE RECOGNIZED AS OCCUPYING SEPARATE AREAS IN MICHIGAN,
WISCONSIN, MINNESOTA AND EASTERN DAKOTA, AND AS ENTITLED TO HOLD OR
CEDE THE SAME INDEPENDENTLY OF OTHER BANDS AND OF THE CHIPPEWAS AS A
WHOLE.  FN4  SOME OF THE BANDS BECAME PERMANENTLY SETTLED IN MICHIGAN
AND WISCONSIN.  OTHERS - USUALLY AS A SINGLE BAND AND EXCEPTIONALLY AS
A GROUP OF A FEW BANDS - BECAME THE RECOGNIZED OCCUPANTS AND HOLDERS OF
TWELVE SEPARATE RESERVATIONS IN MINNESOTA.  IT IS TO THESE MINNESOTA
BANDS AND RESERVATIONS THAT THIS SUIT RELATES. 

ONE OF THE BANDS IN MINNESOTA WAS THE RED LAKE WHICH HAD COME TO
INCLUDE OR BE ASSOCIATED WITH THE PEMBINA BAND.  FOR A LONG PERIOD
THESE TWO BANDS HAD BEEN THE EXCLUSIVE OCCUPANTS OF THE RED LAKE
RESERVATION, THE LARGEST OF ALL.  THE NEXT LARGEST RESERVATION WAS THE
WHITE EARTH.  ITS OCCUPANTS WERE MOSTLY MEMBERS OF THE MISSISSIPPI
BANDS; BUT SOME MEMBERS OF THE LATTER WERE OCCUPYING OLDER RESERVATIONS
WHICH THE WHITE EARTH HAD BEEN DESIGNED TO DISPLACE.  THIS RESERVATION
CONTAINED AN UNUSUAL PROPORTION OF LAND WELL SUITED FOR INDIVIDUAL
INDIAN ALLOTMENTS; AND A SMALL PART OF IT HAD BEEN ALLOTTED TO
INDIVIDUAL INDIANS.  THE TEN SMALLER RESERVATIONS REQUIRE NO OTHER
SPECIAL MENTION THAN THAT SOME OF THE INDIANS BELONGING TO THEM HAD
RECEIVED INDIVIDUAL ALLOTMENTS IN THEM. 

BY AN ACT OF JANUARY 14, 1889, C. 24, 25 STAT. 642, CONGRESS PROPOSED
TO ALL BANDS OF CHIPPEWAS IN MINNESOTA A PLAN FOR THEIR RELIEF AND
CIVILIZATION THROUGH ALLOTMENTS IN SEVERALTY, CESSION AND SALE OF LANDS
NOT REQUIRED FOR ALLOTMENTS, PLACING THE PROCEEDS OF SALES, LESS
VARIOUS EXPENSES, IN A PERMANENT INTEREST BEARING FUND AS HEREINAFTER
STATED, USING THE INTEREST FOR THE SUPPORT AND EDUCATION OF THESE
INDIANS, AND ULTIMATELY DISTRIBUTING PER CAPITA THE PRINCIPAL OF THE
FUND. 

THE ACT CREATED A COMMISSION TO NEGOTIATE WITH THE DIFFERENT BANDS
FOR A COMPLETE CESSION TO THE UNITED STATES OF THEIR TITLE AND RIGHT TO
ALL OF EACH RESERVATION, "EXCEPT THE WHITE EARTH AND RED LAKE
RESERVATIONS, AND TO ALL AND SO MUCH OF THESE TWO RESERVATIONS AS IN
THE JUDGMENT OF SAID COMMISSION IS NOT REQUIRED TO MAKE AND FILL THE
ALLOTMENTS REQUIRED BY THIS AND EXISTING ACTS, AND SHALL NOT HAVE BEEN
RESERVED BY THE COMMISSIONERS FOR SAID PURPOSES." 

THE CESSION WAS TO BE MADE FOR THE PURPOSES AND UPON THE TERMS STATED
IN THE ACT AND WAS TO BE SUFFICIENT AS TO EACH RESERVATION, EXCEPT THE
RED LAKE, IF MADE IN WRITING BY TWO-THIRDS OF THE MALE ADULTS OVER
EIGHTEEN YEARS OF AGE IN THE BAND OCCUPYING AND BELONGING TO SUCH
RESERVATION, AND AS TO THE RED LAKE WAS TO BE SUFFICIENT IF MADE IN
LIKE MANNER "BY TWO-THIRDS OF THE MALE ADULTS OF ALL THE CHIPPEWA
INDIANS IN MINNESOTA."  ALL CESSION AGREEMENTS WERE TO BECOME EFFECTIVE
IF AND WHEN APPROVED BY THE PRESIDENT. 

FOR THE PURPOSE OF ASCERTAINING WHETHER THE PROPER NUMBER OF INDIANS
JOINED IN THE CESSION, AND FOR THE FURTHER PURPOSE OF MAKING ALLOTMENTS
AND PAYMENTS TO INDIVIDUAL INDIANS, THE ACT REQUIRED THE COMMISSIONERS
TO MAKE AN ACCURATE CENSUS OF EACH BAND, CLASSIFYING THE MEMBERS AS
MALE AND FEMALE ADULTS AND MALE AND FEMALE MINORS, AND FURTHER
CLASSIFYING THE MINORS INTO THOSE WHO WERE AND THOSE WHO WERE NOT
ORPHANS. 

AS SOON AS THE CENSUS WAS TAKEN AND THE CESSION OBTAINED AND
APPROVED, ALL OF THE CHIPPEWAS IN MINNESOTA, EXCEPT THOSE ON THE RED
LAKE RESERVATION, WERE TO BE REMOVED TO THE WHITE EARTH RESERVATION;
AND AS SOON AS PRACTICABLE ALLOTMENTS IN SEVERALTY WERE TO BE MADE ON
THE RED LAKE RESERVATION TO THE INDIANS BELONGING TO THAT RESERVATION,
AND ON THE WHITE EARTH RESERVATION TO ALL OF THE OTHER CHIPPEWA INDIANS
IN MINNESOTA - ALL ALLOTMENTS TO BE IN CONFORMITY WITH THE ACT AND WITH
ANOTHER DESIGNATED STATUTE.  FN5  THESE PROVISIONS FOR ALLOTMENTS WERE
QUALIFIED BY OTHER PROVISIONS TO THE EFFECT, FIRST, THAT NO EXISTING
ALLOTMENT IN ANY OF THE RESERVATIONS SHOULD BE DISTURBED, EXCEPT WITH
THE ALLOTTEE'S INDIVIDUAL CONSENT; SECONDLY, THAT EXISTING ALLOTMENTS
IN THE WHITE EARTH RESERVATION WERE RATIFIED AND SHOULD BE ADJUSTED IN
TENURE, CONDITIONS AND QUANTITY TO THE ALLOTMENTS PROVIDED FOR IN THE
ACT; AND, THIRDLY, THAT ANY INDIAN ON ANY OF THE RESERVATIONS MIGHT IN
HIS DISCRETION TAKE HIS ALLOTMENT UNDER THE ACT ON THE RESERVATION
WHERE HE WAS SO RESIDING, INSTEAD OF BEING REMOVED TO AND TAKING AN
ALLOTMENT ON THE WHITE EARTH RESERVATION. 

AS SOON AS THE CESSION WAS OBTAINED AND APPROVED THE LANDS CEDED TO
THE UNITED STATES WERE TO BE SURVEYED; AND AS SOON AS PRACTICABLE AFTER
THE SURVEY THE LANDS SO CEDED WERE TO BE EXAMINED AND CLASSIFIED AS
PINE LANDS OR AGRICULTURAL LANDS, AND SUCH AS WERE CLASSIFIED AS PINE
LANDS WERE TO BE APPRAISED WITH PARTICULAR REGARD TO THE QUANTITY AND
QUALITY OF THE PINE, AND WERE TO BE SOLD BY THE UNITED STATES AT PUBLIC
AUCTION, FOR CASH, AT NOT LESS THAN THE APPRAISED VALUE, IN FORTY-ACRE
OR SMALLER PARCELS. 

THE AGRICULTURAL LANDS "NOT ALLOTTED UNDER THIS ACT NOR RESERVED FOR
THE FUTURE USE OF SAID INDIANS" WERE TO BE DISPOSED OF BY THE UNITED
STATES TO ACTUAL SETTLERS UNDER THE HOMESTEAD LAW AT ONE DOLLAR AND
TWENTY-FIVE CENTS AN ACRE, TO BE PAID IN FIVE EQUAL ANNUAL
INSTALMENTS. 

AS PROVIDED IN SEC. 7 OF THE ACT, ALL MONEY ACCRUING FROM THE
DISPOSAL OF THE CEDED LANDS, AFTER DEDUCTING ENUMERATED EXPENSES, WAS
TO BE PLACED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF "ALL
THE CHIPPEWA INDIANS IN THE STATE OF MINNESOTA" AS A PERMANENT INTEREST
BEARING FUND FOR THE PERIOD OF FIFTY YEARS.  THE INTEREST WAS TO BE
USED FOR THE SUPPORT AND EDUCATION OF SUCH INDIANS, AND AT THE END OF
THE FIFTY YEARS THE PERMANENT FUND WAS TO BE DIVIDED AND PAID TO "ALL
OF SAID CHIPPEWA INDIANS AND THEIR ISSUE THEN LIVING" IN CASH AND EQUAL
SHARES, SUBJECT TO A RESERVED POWER IN CONGRESS TO MAKE LIMITED
APPROPRIATIONS FROM THE FUND DURING THE FIFTY YEAR PERIOD FOR THE
PURPOSE OF PROMOTING CIVILIZATION AND SELF-SUPPORT AMONG THESE
INDIANS. 

UNDER THE ACT OF 1889 THE COMMISSION, BESIDES MAKING THE REQUIRED
CENSUS, CONDUCTED SEPARATE NEGOTIATIONS WITH EACH OF THE BANDS WITH THE
FOLLOWING RESULTS: 

1.  THE RED LAKE AND PEMBINA BANDS (SOMETIMES SPOKEN OF COLLECTIVELY
AS THE RED LAKE BAND OR RED LAKE INDIANS), OCCUPYING AND BELONGING TO
THE RED LAKE RESERVATION, CEDED TO THE UNITED STATES, FOR THE PURPOSES
AND UPON THE TERMS STATED IN THE ACT, THEIR TITLE AND RIGHT TO ALL OF
THAT RESERVATION, SAVE A DESIGNATED TRACT CONTAINING 661,118 ACRES
WHICH THE COMMISSION "RESERVED" FOR THE PURPOSE OF MAKING AND FILLING
ALLOTMENTS TO THEM.  THE CESSION WAS MADE BY A WRITTEN INSTRUMENT
SHOWING WHAT LANDS WERE RESERVED, AND BEARING THE ASSENT OF MORE THAN
TWO-THIRDS OF THE MALE ADULTS OVER EIGHTEEN YEARS OF AGE IN THOSE
BANDS. 

2.  THE BANDS OCCUPYING AND BELONGING TO THE WHITE EARTH RESERVATION,
BY A LIKE INSTRUMENT BEARING A LIKE ASSENT, CEDED TO THE UNITED STATES
THEIR TITLE AND RIGHT TO ALL OF THAT RESERVATION, SAVE A SPECIFIED
TRACT WHICH THE COMMISSION HAD RESERVED FOR ALLOTMENTS.  THE INSTRUMENT
MAKING THIS CESSION CONTAINED A FURTHER CESSION BY SUCH BANDS OF THEIR
TITLE AND RIGHT TO "ALL AND SO MUCH OF THE RED LAKE RESERVATION AS IS
NOT REQUIRED AND RESERVED UNDER THE PROVISIONS OF SAID ACT TO MAKE AND
FILL THE ALLOTMENTS TO THE RED LAKE INDIANS IN QUANTITY AND MANNER AS
THEREIN PROVIDED." 

3.  AS TO EACH OF THE OTHER TEN RESERVATIONS THE BAND OCCUPYING AND
BELONGING TO IT, BY A LIKE INSTRUMENT BEARING A LIKE ASSENT, CEDED THE
WHOLE OF SUCH RESERVATION TO THE UNITED STATES, AND INCLUDED IN THE
INSTRUMENT A FURTHER CESSION RESPECTING THE RED LAKE RESERVATION SUCH
AS WAS INCLUDED IN THE CESSION BY THE INDIANS OF THE WHITE EARTH
RESERVATION. 

4.  THE CESSION OF SO MUCH OF THE RED LAKE RESERVATION AS WAS NOT
REQUIRED AND RESERVED FOR ALLOTMENTS HAD THE WRITTEN ASSENT NOT ONLY OF
TWO-THIRDS OF THE MALE ADULTS OVER EIGHTEEN YEARS OF AGE IN THE BANDS
OF THAT RESERVATION, BUT ALSO OF TWO-THIRDS OF THE MALE ADULTS OF SUCH
AGE OF ALL THE CHIPPEWAS IN MINNESOTA. 

AFTER MAKING THE CENSUS AND OBTAINING THE CESSIONS THE COMMISSION
TRANSMITTED, THROUGH THE COMMISSIONER OF INDIAN AFFAIRS, TO THE
SECRETARY OF THE INTERIOR A REPORT ACCOMPANIED BY THE CENSUS, THE
INSTRUMENTS OF CESSION, AND A TRANSCRIPTION OF THE NEGOTIATIONS WITH
THE SEVERAL BANDS AS STENOGRAPHICALLY REPORTED.  IN ITS REPORT THE
COMMISSION STATED THAT THE TRACT RESERVED BY IT FROM THE RED LAKE
RESERVATION FOR ALLOTMENTS TO THE RED LAKE INDIANS, OF WHICH THERE WERE
THEN 1,168, CONTAINED 661,118 ACRES, AND THAT "THIS IS LARGER THAN THEY
WILL EVENTUALLY REQUIRE, BUT AS THERE ARE SWAMPS AND OTHER UNTILLABLE
LANDS THEREIN, IT CANNOT BE REDUCED UNTIL AFTER SURVEY AND ALLOTMENTS
SHALL BE MADE." 

THE SECRETARY OF THE INTERIOR TRANSMITTED THE COMMISSION'S REPORT AND
THE ACCOMPANYING PAPERS TO THE PRESIDENT FOR CONSIDERATION BY HIM; AND
ON MARCH 4, 1890, THE PRESIDENT APPROVED EACH INSTRUMENT OF CESSION AND
ON THE SAME DAY TRANSMITTED TO THE CONGRESS FOR ITS INFORMATION A
STATEMENT OF HIS APPROVAL, TOGETHER WITH A COPY OF THE COMMISSION'S
REPORT AND OF ALL ACCOMPANYING PAPERS EXCEPT THE CENSUS ROLLS.  FN6 

BY AN ACT OF AUGUST 19, 1890, C. 807, 26 STAT. 336, 357, CONGRESS
RECOGNIZED THE CESSIONS, AS SO APPROVED, BY MAKING APPROPRIATIONS TO
CARRY OUT SUCH PROVISIONS OF THE ACT OF 1889 AS WERE TO BE GIVEN EFFECT
IF AND WHEN THE CESSIONS WERE OBTAINED AND APPROVED. 

IN INSTRUCTIONS ISSUED TO THE COMMISSION BY THE COMMISSIONER OF
INDIAN AFFAIRS, WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR,
BEFORE THE WORK OF THE COMMISSION WAS BEGUN, IT WAS SAID: 

"IT HAS NOT HERETOFORE BEEN CLAIMED BY ANYONE, AND SO FAR AS THE
KNOWLEDGE OF THIS OFFICE EXTENDS, AND CERTAINLY NOT BY THE INDIANS
THEMSELVES, THAT THE RED LAKE RESERVATION IS THE COMMON PROPERTY OF ALL
THE CHIPPEWA INDIANS IN MINNESOTA.  NONE BUT THE RED LAKE AND PEMBINA
BANDS HAVE EVER CLAIMED AN INTEREST IN SAID RESERVATION, AND SAID BANDS
HAVE ALWAYS BEEN RECOGNIZED AND REGARDED AS THE SOLE OWNERS BY RIGHT OF
ORIGINAL INDIAN OCCUPANCY, THE LANDS HAVING NEVER BEEN CEDED TO THE
UNITED STATES."  AND THE COMMISSION WAS FURTHER INSTRUCTED THAT IT WAS
"NECESSARY TO EXERCISE GREAT CARE TO RESERVE A SUFFICIENT AREA OF LAND
TO MAKE THE REQUIRED ALLOTMENTS"; AND ALSO THAT "THE BOUNDARIES OF THE
TRACTS SO RESERVED  ...  MUST BE DEFINITELY DETERMINED AND FIXED AND
ACCURATELY DESCRIBED SO THAT THE INDIANS  ...  (WILL KNOW) JUST WHAT
AND HOW MUCH LAND THEY ARE PARTING WITH."   THE MINUTES OF THE
NEGOTIATIONS BY THE COMMISSION WITH THE INDIANS OF THE RED LAKE
RESERVATION SHOW THAT THE COMMISSION ASSURED THESE INDIANS THAT THE
LAND WHICH IT WOULD RESERVE OUT OF THAT RESERVATION WOULD BELONG TO
THEM AND THEIR CHILDREN; THAT ENOUGH LAND WOULD BE RESERVED FOR THEM
AND THEIR DESCENDANTS FOR ALL PURPOSES; THAT NO OTHER INDIANS WOULD
HAVE ANY RIGHT THEREIN; AND THAT NO ALLOTMENTS WOULD BE MADE
IMMEDIATELY OUT OF THE LAND RESERVED.  THE MINUTES FURTHER SHOW THAT A
LINE WAS DRAWN ON PAPER WHICH THE INDIANS SAID MARKED THE RESERVATION
WHICH THEY WISHED TO HAVE; THAT AFTER FURTHER CONSULTATIONS BETWEEN THE
COMMISSIONERS AND THE INDIANS THE LINE MARKING THE PART TO BE RESERVED
WAS AGREED UPON; AND ONE OF THE COMMISSIONERS THEN SAID THERE WAS SOME
DOUBT WHETHER THE GOVERNMENT WOULD APPROVE OF THEIR YIELDING SO MUCH,
BUT "WE WILL DO THE BEST WE CAN."  FROM THE EVIDENCE AS A WHOLE THE
COURT BELOW FOUND THAT "THE STATEMENTS OF THE COMMISSIONERS AT THE
COUNCIL MEETING PRIOR TO THE EXECUTION OF THE AGREEMENT (INSTRUMENT OF
CESSION) WERE SUCH THAT THE RED LAKE INDIANS WOULD AND DID UNDERSTAND
THEREFROM THAT THEY WERE NOT CEDING ANY PORTION OF THEIR LANDS WHICH IN
THE AGREEMENT WAS SPECIFIED AS RESERVED." 

NOVEMBER 8, 1892, THE CHAIRMAN OF THE COMMISSION, IN A LETTER TO THE
COMMISSIONER OF INDIAN AFFAIRS, STATED IN SUBSTANCE THAT THE COMMISSION
HAD USED AN UNOFFICIAL MAP TO GUIDE IT AND THE INDIANS IN BOUNDING AND
DESCRIBING THE LAND WHICH WAS BEING RESERVED FROM THE RED LAKE
RESERVATION; THAT THIS MAP WAS FAULTY AND MISLEADING IN RESPECT OF THE
LOWER RED LAKE AROUND WHICH PART OF THE TRACT INTENDED TO BE RESERVED
WAS LOCATED; AND THAT TO "PRESERVE FAITH WITH THE INDIANS" HE
RECOMMENDED THAT CERTAIN DESCRIBED LANDS OMITTED FROM THE RESERVATION
MADE BY THE COMMISSION "BE RESERVED FROM SALE AND ADDED TO SAID
RESERVATION."  IN FURTHER SUPPORT OF HIS RECOMMENDATION HE SAID "IT WAS
WITH GREAT RELUCTANCE THAT THEY (THE INDIANS) GAVE UP ANY PART OF THE
UPPER LAKE, AND IF ANY PART OF THE LOWER LAKE SHALL BE TAKEN FROM THEM
THEY WILL THINK THEY WERE DECEIVED OR ADVANTAGE TAKEN OF THEIR
IGNORANCE."  THIS LETTER WAS LAID BEFORE THE PRESIDENT WITH APPROVING
LETTERS FROM THE COMMISSIONER OF INDIAN AFFAIRS AND THE SECRETARY OF
THE INTERIOR, AND ON NOVEMBER 21, 1892, THE PRESIDENT MADE AN EXECUTIVE
ORDER RESERVING THE DESCRIBED LANDS FROM SALE AND ADDING THEM TO THE
RESERVATION MADE BY THE COMMISSION.  THE ADDED LANDS COMPRISED 2,303
ACRES THERETOFORE INCLUDED, APPARENTLY UNINTENTIONALLY, IN THE CESSION
BY THE RED LAKE INDIANS. 

CONTINUOUSLY SINCE THE MAKING OF THE EXECUTIVE ORDER THE LANDS
THEREBY ADDED TO THE RESERVATION MADE BY THE COMMISSION HAVE BEEN
TREATED BY THE UNITED STATES AS A PART OF THAT RESERVATION, AND THE
RESERVATION AS THUS CHANGED OR CORRECTED HAS BEEN KNOWN AS THE
DIMINISHED RED LAKE RESERVATION. 

NO ALLOTMENTS IN SEVERALTY HAVE AS YET BEEN MADE ON THIS DIMINISHED
RESERVATION, BECAUSE THE RED LAKE INDIANS HAVE THUS FAR OPPOSED THE
PRESENT MAKING OF SUCH ALLOTMENTS AND THE ADMINISTRATIVE OFFICERS HAVE
NOT AS YET CONSIDERED IT PRACTICABLE TO MAKE THEM. 

BY AN ACT OF FEBRUARY 20, 1904, C. 161, 33 STAT. 46, 48, CONGRESS
MODIFIED AND ADOPTED AN AGREEMENT NEGOTIATED BY AN UNITED STATES INDIAN
INSPECTOR WITH THE RED LAKE INDIANS WHEREBY THE LATTER CEDED TO THE
UNITED STATES A TRACT CONTAINING 256,152 ACRES OUT OF THE DIMINISHED
RED LAKE RESERVATION.  THIS CESSION WAS IN TRUST THAT THE LANDS BE SOLD
BY THE UNITED STATES AND THE PROCEEDS BE PLACED IN THE TREASURY OF THE
UNITED STATES IN A TRUST FUND TO THE CREDIT OF THE RED LAKE INDIANS AND
BE PAID TO THEM IN STATED INSTALLMENTS.  ARTICLES 4 AND 5 OF THE
AGREEMENT DECLARED: 

"IT IS FURTHER AGREED THAT THE SAID INDIANS BELONGING ON THE SAID RED
LAKE INDIAN RESERVATION, MINNESOTA, SHALL POSSESS THEIR DIMINISHED
RESERVATION INDEPENDENT OF ALL OTHER BANDS OF THE CHIPPEWA TRIBE OF
INDIANS AND SHALL BE ENTITLED TO ALLOTMENTS THEREON OF ONE HUNDRED AND
SIXTY ACRES EACH, OF EITHER AGRICULTURAL OR PINE LAND, THE DIFFERENT
CLASSES OF LAND TO BE APPORTIONED AS EQUITABLY AS POSSIBLE AMONG THE
ALLOTTEES." 

"IT IS UNDERSTOOD THAT NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED
TO DEPRIVE THE SAID INDIANS BELONGING ON THE RED LAKE INDIAN
RESERVATION, MINNESOTA, OF ANY BENEFITS TO WHICH THEY ARE ENTITLED
UNDER EXISTING TREATIES OR AGREEMENTS NOT INCONSISTENT WITH THE
PROVISIONS OF THIS AGREEMENT.  IT IS THE INTENTION OF THIS AGREEMENT
THAT THE UNITED STATES SHALL ACT AS TRUSTEE FOR SAID INDIANS TO DISPOSE
OF SAID LAND AND TO EXPEND AND PAY OVER THE PROCEEDS AS RECEIVED FROM
THE SALE THEREOF ONLY AS RECEIVED, AS HEREIN PROVIDED." 

THE UNITED STATES HAS BEEN HOLDING AND NOW HOLDS THE DIMINISHED RED
LAKE RESERVATION AND ALL MONIES DERIVED THEREFROM, FOR THE SOLE AND
EXCLUSIVE BENEFIT OF THE RED LAKE INDIANS, AND NOT FOR THE BENEFIT OF
THE CHIPPEWA INDIANS OF MINNESOTA, WHO BROUGHT THIS SUIT. 

THE TRACT RESERVED BY THE COMMISSION OUT OF THE RED LAKE RESERVATION
AT THE TIME OF THE CESSION UNDER THE ACT OF 1889 CONTAINED 661,118
ACRES.  THE LANDS ADDED TO THIS RESERVED TRACT BY THE EXECUTIVE ORDER
OF NOVEMBER 21, 1892, COMPRISED 2,303 ACRES, MAKING THE SO-CALLED
DIMINISHED RED LAKE RESERVATION CONTAIN 663,421 ACRES.  THE TRACT CEDED
FROM THIS DIMINISHED RESERVATION BY THE RED LAKE INDIANS IN THE
AGREEMENT EMBODIED IN THE ACT OF FEBRUARY 20, 1904, CONTAINED 256,152
ACRES. 

THE NUMBER OF RED LAKE INDIANS BELONGING TO THE RED LAKE RESERVATION
WAS, ON MARCH 4, 1890, 1,168; ON FEBRUARY 20, 1904, 1,418; ON FEBRUARY
26, 1927, THE DATE OF SUIT, 1,736; AND, IN 1932, 1,881. 

IN MANY ACTS PASSED SINCE MARCH 4, 1890, AND CITED IN FINDINGS 34, 35
AND 36 OF THE COURT BELOW (80 CT. CLS. 410, 455-458), CONGRESS HAS
RECOGNIZED THE RED LAKE INDIANS AS ENTITLED, EXCLUSIVE OF OTHER
CHIPPEWAS, TO THE DIMINISHED RED LAKE RESERVATION AND TO ALL PROCEEDS
THEREFROM. 

OTHER MATTERS SHOWN IN THE FINDINGS WILL BE MENTIONED LATER ON. 

THE CLAIMS PRESENTED BY THE PLAINTIFFS' PETITION AND PRESSED IN THE
COURT BELOW WERE OVERLAPPING IN PART AND SUBSTANTIALLY TO THE EFFECT,
FIRST, THAT THE LANDS RESERVED BY THE COMMISSION OUT OF THE RED LAKE
RESERVATION WERE ONLY TEMPORARILY RESERVED FOR THE PURPOSE OF MAKING
ALLOTMENTS TO THE RED LAKE INDIANS AT THE TIME, IN THE QUANTITY AND OF
THE CHARACTER SPECIFIED IN THE ACT OF 1889; THAT SUBJECT ONLY TO SUCH
FILLING OF THESE ALLOTMENTS THE LANDS RESERVED WERE INCLUDED IN THE
CESSION AND BECAME PART OF THE ESTATE WHICH THE UNITED STATES WAS TO
HOLD IN TRUST FOR THE BENEFIT OF ALL THE CHIPPEWA INDIANS IN MINNESOTA;
AND THAT BY SUBSEQUENTLY FAILING TO MAKE ANY ALLOTMENTS FROM THE
RESERVED LANDS AND PERMANENTLY APPROPRIATING ALL OF THEM, THROUGH THE
ACT OF FEBRUARY 20, 1904, TO THE USE AND BENEFIT OF THE RED LAKE
INDIANS, TO THE EXCLUSION OF ALL OTHER CHIPPEWAS, THE UNITED STATES
WRONGFULLY DISPOSED OF THE LANDS IN DISREGARD OF ITS TRUST OBLIGATIONS
AND OF THE RIGHTS OF THE PLAINTIFFS, AND THEREBY BECAME LIABLE TO THE
PLAINTIFFS FOR THE VALUE OF THE LANDS, OR AT LEAST FOR THE VALUE OF
SUCH OF THEM AS WERE NOT NEEDED TO FILL THE ALLOTMENTS WHICH WERE TO BE
MADE FROM THEM; SECONDLY, THAT BY ADDING TO THE RESERVED LANDS, THROUGH
THE EXECUTIVE ORDER, 2,303 ACRES WHICH HAD BEEN INCLUDED IN THE
CESSION, THE UNITED STATES WRONGFULLY WITHDREW THE ADDED LANDS FROM THE
TRUST ESTATE AND APPROPRIATED THEM TO THE USE AND BENEFIT OF THE RED
LAKE INDIANS, TO THE EXCLUSION OF ALL OTHER CHIPPEWAS, THEREBY BECOMING
LIABLE TO THE PLAINTIFFS FOR THEIR VALUE; AND, THIRDLY, THAT BY THE ACT
OF FEBRUARY 20, 1904, THE UNITED STATES WRONGFULLY TOOK 256,152 ACRES
OF THE RESERVED LANDS FROM THE TRUST ESTATE AND APPLIED THEM TO A NEW
AND DIFFERENT TRUST FOR THE BENEFIT OF THE RED LAKE INDIANS, TO THE
EXCLUSION OF ALL OTHER CHIPPEWAS, AND THEREBY BECAME LIABLE TO THE
PLAINTIFFS FOR THE VALUE OF SUCH OF THEM AS WERE NOT SOLD AND FOR THE
PROCEEDS FROM SUCH AS WERE SOLD. 

FROM THE FINDINGS MADE AND FROM AN EXAMINATION OF THE INSTRUMENTS OF
CESSION AND OF THE TREATIES, STATUTES AND PUBLIC DOCUMENTS REFERRED TO
IN THE FINDINGS, THE COURT BELOW REACHED THE CONCLUSION THAT UP TO THE
TIME OF THE CESSION UNDER THE ACT OF 1889 THE RED LAKE INDIANS HAD THE
FULL INDIAN TITLE TO THE RED LAKE RESERVATION, TO THE EXCLUSION OF ALL
OTHER CHIPPEWAS; THAT THE LANDS RESERVED BY THE COMMISSION WERE NOT
INCLUDED IN THE CESSION, BUT EXPLICITLY RESERVED THEREFROM, AND
THEREFORE THE INDIAN TITLE TO THEM REMAINED IN THE RED LAKE INDIANS;
THAT THE LANDS WHICH THE EXECUTIVE ORDER ADDED TO THOSE WHICH WERE SO
RESERVED WERE BY MUTUAL MISTAKE INCLUDED IN THE CESSION INSTEAD OF
BEING INCLUDED IN THOSE RESERVED, AND THEREFORE THE EXECUTIVE ORDER
SHOULD BE REGARDED AS HAVING APPROPRIATELY CORRECTED THAT MISTAKE AND
MADE EFFECTIVE THE TRUE INTENTION OF THE PARTIES; AND THAT IN THESE
CIRCUMSTANCES THE PLAINTIFFS WERE NOT INJURED OR ENTITLED TO RECOVER BY
REASON OF ANY OF THE MATTERS COMPLAINED OF, AND THEIR PETITION SHOULD
BE DISMISSED. 

1.  COMPLAINT IS MADE OF THE ACTION OF THE COURT IN REGARDING THE
INDIAN TITLE TO THE LANDS IN THE RED LAKE RESERVATION PRIOR TO AND AT
THE TIME OF THE CESSION AS MATERIAL.  PLAINLY THE COMPLAINT IS WITHOUT
MERIT.  WHETHER THE TITLE WAS IN THE RED LAKE BANDS ALONE OR IN ALL OF
THE MINNESOTA BANDS HAS A MATERIAL BEARING ON THE CONSTRUCTION AND
EFFECT OF THE CESSION, AND ALSO ON THE QUESTION OF WHO, AFTER THE
CESSION, HAD THE TITLE TO THE LANDS RESERVED. 

2.  COMPLAINT IS NEXT MADE OF THE HOLDING THAT THE INDIAN TITLE PRIOR
TO AND AT THE TIME OF THE CESSION WAS IN THE RED LAKE BANDS.  WHILE
THERE APPEARS TO HAVE BEEN SOME DIVERSITY OF OPINION ON THIS QUESTION,
WE ARE OF OPINION THAT THE COURT'S SOLUTION OF IT IS RIGHT.  FOR A LONG
PERIOD THE RED LAKE BANDS HAD BEEN IN THE EXCLUSIVE OCCUPANCY OF THE
LANDS IN THE RED LAKE RESERVATION.  NONE OF THE OTHER MINNESOTA BANDS
DISPUTED THIS OCCUPANCY OR THE RIGHT TO IT.  SOME HAD IN TREATIES
RELINQUISHED ALL RIGHT TO AREAS WHICH INCLUDED THAT RESERVATION,  FN7
AND OTHERS HAD RECOGNIZED THE OCCUPANCY AND TITLE OF THE RED LAKE BANDS
BY BOTH CEDING AND ACCEPTING ADJACENT LANDS EXPRESSLY DESCRIBED AS
BOUNDED ON "THE LINE OF THE RED LAKE RESERVATION."  FN8  THE OFFICERS
OF THE UNITED STATES CHARGED WITH THE ADMINISTRATION OF INDIAN AFFAIRS
ALSO HAD RECOGNIZED, REPEATEDLY AND CONSISTENTLY, THE OCCUPANCY AND
TITLE OF THE RED LAKE BANDS.  TYPICAL OF SUCH RECOGNITIONS IS A LETTER
OF JANUARY 8, 1889, BY THE COMMISSIONER OF INDIAN AFFAIRS, WHICH WAS
WRITTEN WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR FOR THE
INFORMATION OF THE PRESIDENT.  IN THE LETTER IT WAS SAID:  "NONE OF THE
INDIANS IN THAT STATE, EXCEPT THE RED LAKE INDIANS, HAVE ANY RIGHT,
TITLE OR INTEREST IN THE RED LAKE RESERVATION." 

THE RECOGNITION OF A CHIPPEWA BAND AS HAVING TITLE TO A RESERVATION
OCCUPIED BY IT WAS NOT CONFINED TO THE RED LAKE BANDS OR TO THE RED
LAKE RESERVATION.  ON THE CONTRARY, IT HAD LONG BEEN THE SETTLED RULE
IN RESPECT OF THE CHIPPEWA INDIANS IN MINNESOTA THAT A BAND OR BANDS
OCCUPYING A SEPARATE RESERVATION SHOULD BE REGARDED AND DEALT WITH AS
HAVING THE FULL INDIAN TITLE TO THE LANDS THEREIN.  THE INDIANS BOTH
RECOGNIZED AND GAVE EFFECT TO THE RULE.  MANY CESSIONS WERE NEGOTIATED
AND CARRIED OUT IN CONFORMITY WITH IT.  THE BAND OR BANDS OCCUPYING A
RESERVATION CEDED IT IN WHOLE OR IN PART WITHOUT ANY PARTICIPATION BY
OTHER BANDS AND RECEIVED AND ENJOYED THE COMPENSATION WITHOUT SHARING
IT WITH OTHERS.  UNDER THE RULE EACH OF THE BANDS EXISTING IN 1889 HAD
THERETOFORE MADE CESSIONS AND RECEIVED PAY THEREFOR QUITE INDEPENDENTLY
OF THE OTHER BANDS.  BY A TREATY OF OCTOBER 2, 1863, 13 STAT. 667, THE
UNITED STATES NEGOTIATED A TREATY WITH THE RED LAKE AND PEMBINA BANDS
WHEREBY THESE BANDS CEDED TO THE UNITED STATES A DESCRIBED PART OF THE
LANDS THEN "OWNED AND CLAIMED BY THEM," AND THE UNITED STATES, IN
CONSIDERATION OF THE CESSION, AGREED TO PAY "TO THE SAID RED LAKE AND
PEMBINA BANDS" A STATED SUM PER ANNUM FOR A LIMITED PERIOD.  IN ARTICLE
6 OF THE TREATY THE LANDS NOT CEDED WERE CALLED "THE RESERVATION," AND
THEREAFTER WERE REGARDED BY THE UNITED STATES AND THE INDIANS AS
CONSTITUTING THE RED LAKE RESERVATION.  FN9  THE TREATY OF 1863 WAS
CONFIRMED, WITH MODIFICATIONS NOT MATERIAL HERE, BY A TREATY OF APRIL
12, 1864, WITH THE SAME INDIANS, 13 STAT. 689.  NO OTHER BAND
PARTICIPATED IN THAT CESSION OR SHARED, OR SOUGHT TO SHARE, IN THE
COMPENSATION. 

THIS ARRAY OF MATTERS MAKING STRONGLY FOR FULL INDIAN TITLE IN THE
RED LAKE BANDS PRIOR TO AND AT THE TIME OF THE CESSION OF 1889
ENCOUNTERS DIRECT CONTRADICTION IN THE REPORT MADE TO THE HOUSE OF
REPRESENTATIVES BY ITS COMMITTEE ON INDIAN AFFAIRS WHEN PRESENTING THE
BILL WHICH, AFTER MANY AMENDMENTS, BECAME THE ACT OF 1889.  FN10  IN
THAT REPORT IT WAS SAID: 

"ALL OF THE INDIANS IN MINNESOTA ARE MEMBERS OF THE GREAT CHIPPEWA
FAMILY, WHICH HAS FOR GENERATIONS OCCUPIED THE NORTHERN AND
NORTHEASTERN HALF OF THE STATE.  THERE ARE NOW IN ALL ABOUT 7,500 OF
THESE INDIANS, WHO OCCUPY RESERVATIONS AND UNCEDED LANDS AMOUNTING IN
THE AGGREGATE TO ABOUT 4,700,000 ACRES OF LAND. 

     .         .         .         .         . 

"THE SO-CALLED RED LAKE RESERVATION IS SIMPLY A REMNANT OF UNCEDED
INDIAN TERRITORY OCCUPIED AT PRESENT BY THE RED LAKE BAND, BUT REALLY
THE COMMON PROPERTY, SO FAR AS THE INDIAN TITLE IS CONCERNED, OF ALL
THE CHIPPEWA INDIANS IN MINNESOTA. 

     .         .         .  .         . 

"ALL THE CHIPPEWAS IN MINNESOTA REALLY BELONG TO ONE FAMILY, AND THIS
RED LAKE RESERVATION IS REALLY A REMNANT OF ALL THAT COUNTRY ONCE
OCCUPIED BY THEM IN COMMON, AND THUS A SORT OF COMMON PROPERTY." 

IN SO FAR AS THE COMMITTEE REPORT STATES THAT THE TITLE TO THE LANDS
IN THE RED LAKE RESERVATION WAS HELD IN COMMON BY ALL OF THE CHIPPEWA
INDIANS IN MINNESOTA, RATHER THAN BY THE RED LAKE BANDS, IT IS AT
VARIANCE WITH WHAT IS OTHERWISE INDUBITABLY SHOWN, AND EVIDENTLY IS
BASED ON A SERIOUS MISAPPREHENSION OF THE REAL SITUATION.  IT OVERLOOKS
TREATIES WHEREIN MOST OF THE OTHER BANDS RELINQUISHED AREAS WHICH
INCLUDED THE LANDS IN THE RED LAKE RESERVATION; TAKES NO ACCOUNT OF THE
RULE, LONG APPLIED BY THE GOVERNMENT AND THE CHIPPEWA INDIANS, WHEREBY
A BAND OR BANDS OCCUPYING A SEPARATE RESERVATION WERE REGARDED AS
HAVING THE TITLE TO THE LANDS THEREIN AND ENTITLED TO HOLD OR CEDE THEM
INDEPENDENTLY OF OTHER BANDS; PUTS ASIDE THE TREATIES OF 1863 AND 1864
WHICH RECOGNIZED THE RED LAKE AND PEMBINA BANDS AS OWNING THE LANDS
OCCUPIED BY THEM, AND ALSO AS ENTITLED TO MAKE CESSIONS THEREFROM
WITHOUT CONSULTING OTHER BANDS; FAILS TO CONSIDER THE ABSENCE OF ANY
CLAIM BY OTHER BANDS TO AN INTEREST IN THE LANDS OF THE RED LAKE
RESERVATION; AND GIVES NO EFFECT TO A FORMIDABLE BODY OF LEGISLATIVE
AND ADMINISTRATIVE ACTION AND OPINION WHEREBY THE RED LAKE BANDS, AND
THEY ALONE, WERE UNIFORMLY RECOGNIZED AS BOTH OCCUPYING AND HAVING THE
INDIAN TITLE TO THE LANDS IN THAT RESERVATION.  IT THEREFORE IS PLAIN
THAT THE REPORT CANNOT BE TAKEN AS OVERCOMING THE FACTS OTHERWISE
INDUBITABLY SHOWN. 

3.  NEXT IT IS INSISTED THAT EVEN THOUGH THE INDIAN TITLE WAS IN THE
RED LAKE BANDS, CONGRESS IN SEC. 1 OF THE ACT OF 1889, DECLARED THAT AS
TO THE RED LAKE RESERVATION THE CESSION SHOULD BE SUFFICIENT IF MADE BY
"TWO-THIRDS OF THE MALE ADULTS OF ALL THE CHIPPEWA INDIANS IN
MINNESOTA," AND THEREBY ENABLED THE CHIPPEWAS AS A WHOLE TO CEDE THAT
RESERVATION, EVEN OVER THE OBJECTION OF THE RED LAKE BANDS.  TO THIS WE
DO NOT AGREE.  OUR DECISIONS, WHILE RECOGNIZING THAT THE GOVERNMENT HAS
POWER TO CONTROL AND MANAGE THE PROPERTY AND AFFAIRS OF ITS INDIAN
WARDS IN GOOD FAITH FOR THEIR WELFARE, SHOW THAT THIS POWER IS SUBJECT
TO CONSTITUTIONAL LIMITATIONS AND DOES NOT ENABLE THE GOVERNMENT TO
GIVE THE LANDS OF ONE TRIBE OR BAND TO ANOTHER, OR TO DEAL WITH THEM AS
ITS OWN.  FN11  AND, OF COURSE, AN ACT OF CONGRESS SHOULD NOT BE GIVEN
A CONSTRUCTION WHICH WILL IMPERIL ITS VALIDITY WHERE IT IS REASONABLY
OPEN TO A CONSTRUCTION FREE FROM SUCH PERIL.  FN12  THE PROVISION IN
SEC. 1 OF THE ACT OF 1889, ON WHICH THE APPELLANTS RELY, IS, IN OUR
OPINION, REASONABLY OPEN TO A CONSTRUCTION CERTAINLY CONSISTENT WITH
ITS VALIDITY.  THE SECTION DIRECTS THE COMMISSION TO NEGOTIATE WITH
"ALL THE DIFFERENT BANDS" FOR A CESSION OF ALL OF THE RESERVATIONS,
EXCEPT PARTS OF TWO, AND THEN PROVIDES THAT THE CESSION SHALL BE
SUFFICIENT "AS TO EACH AND ALL OF SAID SEVERAL RESERVATIONS, EXCEPT AS
TO THE RED LAKE RESERVATION," IF MADE BY TWO-THIRDS OF THE MALE ADULTS
OF THE BAND OCCUPYING AND BELONGING TO SUCH RESERVATION, AND "AS TO THE
RED LAKE RESERVATION" SHALL BE SUFFICIENT IF MADE "BY TWO-THIRDS OF THE
MALE ADULTS OF ALL THE CHIPPEWA INDIANS IN MINNESOTA."  A FAIRLY
ADMISSIBLE MEANING OF THIS IS THAT NEGOTIATIONS WERE TO BE HAD WITH
EACH AND ALL OF THE BANDS, INCLUDING THOSE OCCUPYING THE RED LAKE
RESERVATION; THAT THE CESSION AS TO EACH RESERVATION WAS TO BE BY AT
LEAST TWO-THIRDS OF THE MALE ADULTS OF THE BAND OCCUPYING THE SAME; AND
THAT AS TO THE RED LAKE RESERVATION THE CESSION WAS TO BE NOT ONLY BY
TWO-THIRDS OF THE MALE ADULTS OF THE BANDS OCCUPYING THAT RESERVATION
BUT ALSO BY TWO-THIRDS OF THE MALE ADULTS OF ALL THE CHIPPEWA INDIANS
IN MINNESOTA.  TO SAVE THE SECTION FROM QUESTIONABLE VALIDITY, THIS
MEANING SHOULD BE PREFERRED TO ONE INVOLVING A PURPOSE TO AUTHORIZE A
CESSION AS TO THAT RESERVATION WITHOUT THE ASSENT OF THE BANDS
OCCUPYING IT.  THE ADDITIONAL REQUIREMENT AS TO IT THAT THE CESSION
HAVE THE ASSENT OF TWO-THIRDS OF THE MALE ADULTS OF ALL THE CHIPPEWA
INDIANS OF MINNESOTA MAY WELL BE REGARDED AS PRECAUTIONARY AND
INTENDED, IN VIEW OF THE STATEMENTS IN THE COMMITTEE'S REPORT, TO
ACCOMPLISH A CESSION WHICH WOULD BE EFFECTIVE WHETHER THE TITLE WAS IN
THE RED LAKE BANDS, AS THE ADMINISTRATIVE OFFICERS WERE HOLDING, OR WAS
HELD IN COMMON BY ALL THE MINNESOTA CHIPPEWAS, AS THE COMMITTEE
STATED.  IN THIS VIEW OF THE SECTION - WHICH WE THINK THE RIGHT ONE -
THE ACT CANNOT BE HELD TO EVINCE A PURPOSE TO TAKE FROM ONE BAND
WITHOUT ITS ASSENT AND GIVE TO OTHERS.  THE COMMISSION EVIDENTLY
UNDERSTOOD THE PROVISION AS WE DO, FOR THEY WENT FIRST TO THE RED LAKE
BANDS AND THERE ANNOUNCED THAT THE NEGOTIATIONS, IF NOT RESULTING IN
THE REQUISITE ASSENT OF THOSE BANDS, WOULD BE ABANDONED. 

4.  IT IS FURTHER INSISTED THAT THE COURT ERRED IN HOLDING THAT NONE
OF THE LANDS DESCRIBED IN THE INSTRUMENT OF CESSION AS RESERVED BY THE
COMMISSION FOR ALLOTMENTS WAS CEDED, INSTEAD OF HOLDING THAT ALL WERE
CEDED, SAVE THOSE ACTUALLY REQUIRED TO MAKE AND FILL ALLOTMENTS AT THE
TIME, IN THE QUANTITY AND OF THE CHARACTER DESCRIBED IN THE ACT OF
1889.  WE REGARD THE HOLDING AS RIGHT.  THE ACT WAS NOT INTENDED TO
SECURE A CESSION OF ALL OF THE RED LAKE RESERVATION, BUT ONLY OF SO
MUCH OF IT AS "IN THE JUDGMENT OF SAID COMMISSION" WAS NOT REQUIRED TO
MAKE AND FILL THE INTENDED ALLOTMENTS, AND WAS NOT "RESERVED BY THE
COMMISSIONERS" FOR THAT PURPOSE.  AND THE ALLOTMENTS WERE TO BE MADE,
NOT WITHIN ANY DEFINITE PERIOD, BUT "AS SOON AS PRACTICABLE."  THE
INSTRUMENT OF CESSION DECLARED THAT THE RED LAKE BANDS CEDED ALL OF
THEIR RESERVATION NOT INCLUDED WITHIN DESIGNATED BOUNDARIES AND THAT
THE LANDS EMBRACED WITHIN THOSE BOUNDARIES HAD BEEN RESERVED BY THE
COMMISSIONERS FOR THE PURPOSE OF MAKING AND FILLING ALLOTMENTS.  THUS
IT SHOWED WHAT LANDS WERE CEDED AND WHAT WERE RESERVED.  THE ACT
COMMITTED TO THE "JUDGMENT OF THE COMMISSION" THE DETERMINATION OF HOW
MUCH AND WHAT WOULD BE REQUIRED FOR ALLOTMENTS, AND LAID ON THE
COMMISSIONERS THE DUTY OF RESERVING LANDS ACCORDINGLY.  THE INSTRUMENT
OF CESSION SHOWS THAT THE COMMISSION ATTENDED TO THESE TASKS.  WHETHER
THE TASKS WERE PERFORMED WITH APPROPRIATE WISDOM IS NOT OPEN TO INQUIRY
IN THIS SUIT.  THE INSTRUMENT OF CESSION, SHOWING THE LANDS CEDED AND
THE LANDS RESERVED, WAS EXAMINED BY THE COMMISSIONER OF INDIAN AFFAIRS
AND THE SECRETARY OF THE INTERIOR AND WAS THEN SUBMITTED TO AND
APPROVED BY THE PRESIDENT.  WITH THAT APPROVAL IT BECAME EFFECTIVE. 
THE LANDS WHICH WERE RESERVED WERE NOT CEDED, EITHER BY THE TERMS OF
THE INSTRUMENT OF CESSION OR THROUGH THE OPERATION OF THE ACT.  THE
INDIAN TITLE TO THEM REMAINED AFTER THE CESSION, AS BEFORE, IN THE RED
LAKE BANDS.  THE ACT CONTEMPLATED THEIR USE IN MAKING ALLOTMENTS TO
MEMBERS OF THOSE BANDS; BUT, AS THEY WERE NOT CEDED BUT RESERVED FROM
THE CESSION, THE MATTER OF WHETHER AND WHEN THEY SHALL BE ALLOTTED
RESTS WITH THE GOVERNMENT AND THOSE BANDS AND IS NOT OF ANY CONCERN, IN
THE SENSE OF THE LAW, TO THE OTHER BANDS. 

THE CESSION OF THE RED LAKE RESERVATION BY THE INDIANS OF THE OTHER
RESERVATIONS DIFFERS IN WORDS FROM THAT BY THE RED LAKE BANDS, BUT WE
REGARD THEM AS IN SUBSTANCE IDENTICAL AND AS CONFORMING TO THE ACT. 

5.  ERROR IS ALSO ASSIGNED ON THE COURT'S RULING RESPECTING THE
EXECUTIVE ORDER OF NOVEMBER 21, 1892, WHEREBY 2,303 ACRES OF THE LANDS
CEDED UNDER THE ACT OF 1889 WERE ADDED TO THE LANDS RESERVED FOR
ALLOTMENTS.  THE BASIS FOR THIS ORDER, SHORTLY STATED, IS THAT THE
LANDS SO ADDED WERE INTENDED BY THE COMMISSION AND THE INDIANS TO BE
INCLUDED IN THE LANDS RESERVED AND WERE BY MUTUAL MISTAKE, INCIDENT TO
THE USE OF AN UNOFFICIAL AND FAULTY MAP, INCLUDED AMONG THOSE CEDED. 
EVIDENTLY THE RED LAKE BANDS WERE EQUITABLY ENTITLED TO HAVE THE
MISTAKE CORRECTED.  NO INTERVENING RIGHT STOOD IN THE WAY.  THE
MISTAKEN CESSION WAS TO THE UNITED STATES, IN TRUST FOR THE ULTIMATE
BENEFIT OF INDIAN WARDS.  IN THIS SITUATION WE SHOULD HESITATE A GOOD
DEAL BEFORE HOLDING THAT THE PRESIDENT'S AUTHORITY OVER INDIAN AFFAIRS
IS NOT BROAD ENOUGH TO WARRANT A CORRECTION OF THE MISTAKE BY AN
EXECUTIVE ORDER.  FN13  BUT, THIS ASIDE, THE APPELLANTS ARE WITHOUT
RIGHT TO RECOVER IN RESPECT OF THE LANDS WHICH WERE THE SUBJECT OF THE
MISTAKE.  SAVE FOR IT THE LANDS WOULD HAVE BEEN RESERVED, NOT INCLUDED
IN THE CESSION.  THEREFORE, THE APPELLANTS' INTEREST IN THEM THROUGH
THE CESSION AND TRUST WAS COLORABLE ONLY, AND IN AN APPROPRIATE
PROCEEDING, BROUGHT WITH THE CONSENT OF THE UNITED STATES, THE MISTAKE
COULD AND DOUBTLESS WOULD HAVE BEEN CORRECTED.  SO, IN NO ADMISSIBLE
VIEW OF THE EXECUTIVE ORDER CAN IT BE SAID TO HAVE WORKED ANY REAL
INJURY TO THE APPELLANTS. 

6.  SO MUCH OF THE APPELLANTS' CLAIM AS IS GROUNDED ON WHAT WAS DONE
BY AND UNDER THE ACT OF FEBRUARY 20, 1904, IS DISPOSED OF ADVERSELY TO
THEM BY WHAT ALREADY HAS BEEN SAID RESPECTING THE TITLE TO THE LANDS
RESERVED FROM THE CESSION OF 1889. 

IT RESULTS THAT THE JUDGMENT MUST STAND.  JUDGMENT AFFIRMED. 

FN1  ACT MAY 14, 1926, C. 300, 44 STAT. 555, AS SPECIALLY
SUPPLEMENTED MAY 18, 1928, C. 623, 45 STAT. 601; JUNE 18, 1934, C. 568,
48 STAT. 979; JUNE 22, 1936, C. 714, 49 STAT. 1826. 

FN2  ACT JUNE 18, 1934, C. 568, 48 STAT. 979. 

FN3  TREATIES AUG. 3, 1795, 7 STAT. 49; JULY 4, 1805, 7 STAT. 87;
NOV. 17, 1807, 7 STAT. 105; SEPT. 24, 1819, 7 STAT. 203; JUNE 16, 1820,
7 STAT. 206; JULY 6, 1820, 7 STAT. 207; AUG. 29, 1821, 7 STAT. 218;
APRIL 19, 1825, 7 STAT. 272; AUG. 5, 1826, 7 STAT. 290; AUG. 11, 1827,
7 STAT. 303. 

FN4  TREATIES MAY 9, 1836, 7 STAT. 503; JAN. 14, 1837; 7 STAT. 528;
DEC. 20, 1837, 7 STAT. 547; OCT. 4, 1842, 7 STAT. 591; AUG. 2, 1847, 9
STAT. 904; AUG. 21, 1847, 9 STAT. 908; SEPT. 30, 1854, 10 STAT. 1109;
FEB. 22, 1855, 10 STAT. 1165; OCT. 2, 1863, 13 STAT. 667; APRIL 12,
1864, 13 STAT. 689; MAY 7, 1864, 13 STAT. 693; APRIL 7, 1866, 14 STAT.
765; MAR. 19, 1867, 16 STAT. 719. 

FN5  FOR PROVISIONS FOR ENLARGED ALLOTMENTS ON WHITE EARTH
RESERVATION SEE ACT OF APRIL 28, 1904, C. 1786, 33 STAT. 539, AND
FAIRBANKS V. UNITED STATES, 223 U.S. 215.  AND FOR PROVISION FOR
ENLARGED ALLOTMENTS ON RED LAKE RESERVATION SEE ACT OF FEBRUARY 20,
1904, C. 161, 33 STAT. 46, 48, ARTICLE IV. 

FN6  HOUSE EX. DOC. NO. 247, 51ST CONG., 1ST SESS. 

FN7  TREATIES SEPTEMBER 30, 1854, 10 STAT. 1109; FEBRUARY 22, 1855,
10 STAT. 1165; AUGUST 7, 1866, 14 STAT. 765. 

FN8  TREATY MAY 7, 1864, 13 STAT. 693; EXECUTIVE ORDER MARCH 18,
1879, CONCERNING WHITE EARTH RESERVATION.  EXECUTIVE ORDERS RELATING TO
INDIAN RESERVATIONS (1912), P. 87. 

FN9  MINNESOTA V. HITCHCOCK, 185 U.S. 373, 389-390; UNITED STATES V.
HOLT STATE BANK, 270 U.S. 49, 58. 

FN10  HOUSE REPORT NO. 789, 50TH CONGRESS, 1ST SESS.; CONG. REC.,
50TH CONGRESS, 1ST SESS., VOL. 19, PT. 9, PP. 9130-9131. 

FN11  LANE V. SANTA ROSA, 249 U.S. 110, 113; UNITED STATES V. CREEK
NATION, 295 U.S. 103, 109-110; SHOSHONE TRIBE V. UNITED STATES, 299
U.S. 476, 497. 

FN12  PANAMA R. CO. V. JOHNSON, 264 U.S. 375, 390; ANNISTON MFG. CO.
V. DAVIS, (THIS DAY DECIDED), ANTE, P. 337. 

FN13  REV. STATS. SECS. 463, 465; WEST V. HITCHCOCK, 205 U.S. 80, 84
85; WILLIAMS V. UNITED STATES, 138 U.S. 514, 524; KNIGHT V. U.S. LAND
ASSN., 142 U.S. 161, 177, ET SEQ.; UNITED STATES V. MID WEST OIL CO.,
236 U.S. 459, 469, ET SEQ.
..END :







OLD COLONY CO. V. COMM'R., 301 U.S. 379 


NO. 703.  ARGUED APRIL 29, 30, 1937.  - DECIDED MAY 17, 1937.  - 87
F.(2D) 131, REVERSED. 


1.  IN THE COMPUTATION OF THE NET INCOME OF A TRUST, SEC. 162 OF THE
REVENUE ACT OF 1928 ALLOWS DEDUCTION OF ANY PART OF THE GROSS INCOME,
WITHOUT LIMITATION, WHICH "PURSUANT TO" THE TERMS OF THE DEED CREATING
THE TRUST IS DURING THE TAX YEAR PAID TO CHARITIES, ETC.  HELD THAT
PAYMENTS ARE "PURSUANT TO" THE DEED WHEN AUTHORIZED, THOUGH NOT
IMPERATIVELY DIRECTED, BY IT.  P. 383. 

2.  "PURSUANT TO" IS DEFINED.  P. 383. 

3.  IN ORDER THAT DEDUCTION MAY BE ALLOWED, THE TRUST NEED NOT SHOW
AFFIRMATIVELY THAT CHARITABLE CONTRIBUTIONS FROM GROSS INCOME WERE
ACTUALLY PAID OUT OF INCOME OF THE YEAR IN WHICH THEY WERE MADE.  P.
384. 

4.  IT IS THE POLICY OF CONGRESS TO ENCOURAGE CHARITABLE
CONTRIBUTIONS.  P. 384. 

OLD COLONY TRUST CO. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 300 U.S. 650, TO REVIEW A JUDGMENT REVERSING, UPON
APPEAL, A DECISION (33 B.T.A. 311) WHICH HAD IN PART SUSTAINED, AND IN
PART OVERRULED, A DEFICIENCY INCOME TAX ASSESSMENT. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

UNDER TRUST DEED OF JULY 19, 1922, THE OLD COLONY TRUST COMPANY CAME
INTO POSSESSION OF VALUABLE INCOME PRODUCING PROPERTY FROM WHICH TO PAY
CERTAIN SUMS AND SATISFY SPECIFIED ANNUITIES.  THE DEED CONTINUES: 

"13.  I AUTHORIZE MY SAID TRUSTEES TO PAY TO CHARITIES AS HEREINAFTER
DESCRIBED SUCH SUMS AS IN THEIR JUDGMENT MAY BE PAID WITHOUT
JEOPARDIZING THE ANNUITIES HEREIN PROVIDED FOR, WHENEVER FOR A PERIOD
OF ONE YEAR THE TRUST FUND HELD BY THEM AS THEN INVESTED SHALL HAVE
YIELDED A NET INCOME EQUAL TO TWICE THE AMOUNT OF THE ANNUITIES WHICH
THEY ARE THEN REQUIRED TO PAY, AND UPON THE DEATH OF THE SURVIVOR OF
THOSE PERSONS, WHO UNDER THE TERMS OF THIS INSTRUMENT ARE TO RECEIVE
ANNUAL INCOMES UNDER THE TRUST HEREBY CREATED, I DIRECT MY SAID
TRUSTEES TO DISTRIBUTE THE REST AND RESIDUE REMAINING IN THEIR HANDS
AMONG CORPORATIONS AND TRUSTEES ORGANIZED, OPERATING AND HOLDING
EXCLUSIVELY FOR RELIGIOUS, CHARITABLE, SCIENTIFIC, LITERARY OR
EDUCATIONAL PURPOSES, INCLUDING THE ENCOURAGEMENT OF ART AND THE
PREVENTION OF CRUELTY TO CHILDREN OR ANIMALS, THE SUM PAID OVER BY SAID
TRUSTEES TO SUCH CORPORATIONS OR BOARDS OF TRUSTEES TO BE HELD BY SUCH
CORPORATIONS AND BOARDS OF TRUSTEES IN TRUST, AND THE INCOME THEREOF TO
BE EXPENDED FOR THE GENERAL PURPOSES FOR WHICH SUCH CORPORATIONS AND
BOARDS OF TRUSTEES ARE ORGANIZED, AND I REQUEST THAT SAID FUNDS BE
DESIGNATED BY EACH CORPORATION OR BOARD OF TRUSTEES AS THE HENRY CLAY
JACKSON FUND." 

EACH YEAR AFTER 1923 THE ESTATE'S INCOME WAS MORE THAN TWICE THE
AMOUNT NECESSARY FOR THE ANNUITIES.  THE TRUSTEE HAS KEPT SEPARATE
PRINCIPAL AND INCOME ACCOUNTS.  FROM 1925 TO 1933 ALL ANNUITIES WERE
DULY PAID AND CONSIDERABLE SUMS WENT TO CHARITIES; NONE OF THESE
PAYMENTS WAS CHARGED TO THE PRINCIPAL ACCOUNT.  TAX RETURNS HAVE BEEN
BASED UPON ACTUAL RECEIPTS AND DISBURSEMENTS. 

JANUARY 1, 1931, THE INCOME ACCOUNT SHOWED UNEXPENDED BALANCE OF
$187,999.43.  DURING THAT YEAR THE INCOME RECEIVED AMOUNTED TO
$164,339.39; THE TRUSTEE EXPENDED AND CHARGED AGAINST INCOME ACCOUNT
$212,862.80, OF WHICH $190,000.00 WENT TO CHARITIES.  THE 1931 TAX
RETURN CLAIMED DEDUCTIONS FOR CHARITY PAYMENTS UP TO THE AMOUNT OF THE
YEAR'S INCOME.  THE COMMISSIONER DISALLOWED THIS BECAUSE "IT IS NOT
DISCLOSED THAT PAYMENTS WERE MADE OUT OF INCOME OF THE TAXABLE YEAR TO
THE CHARITIES NOR THAT ANY PORTION OF THE INCOME WAS CREDITED TO ANY
CHARITY." 

THE BOARD OF TAX APPEALS HELD THE TRUSTEE MUST AFFIRMATIVELY PROVE
THE PAYMENTS IN QUESTION WERE FROM INCOME RECEIVED DURING 1931; ALSO,
THAT EXCEPT AS TO A SMALL SUM, IT HAD NOT SUSTAINED THE NECESSARY
BURDEN OF PROOF. 

THE CIRCUIT COURT OF APPEALS RULED THAT NONE OF THE CONTRIBUTIONS WAS
DEDUCTIBLE BECAUSE NOT IMPERATIVELY DIRECTED BY THE TRUST DEED.  IT
TOOK THE VIEW THAT AS THE TRUSTEE EXERCISED DISCRETION AS TO PAYMENT
THEY WERE NOT MADE "PURSUANT TO THE TERMS OF THE  ...  DEED CREATING
THE TRUST."  ACCORDINGLY, IT APPROVED THE COMMISSIONER'S ASSESSMENT AND
REMANDED THE CAUSE TO THE BOARD. 

THE MATTER IS HERE BY CERTIORARI.  ANNUITY PAYMENTS ARE NOT NOW IN
CONTROVERSY.  TWO QUESTIONS ARE PRESENTED AND BOTH MUST BE ANSWERED IN
THE NEGATIVE. 

I. UNDER SEC. 162, REVENUE ACT, 1928, 45 STAT. 838, COPIED IN THE
MARGIN, IS IT NECESSARY THAT THE WILL OR DEED CREATING A TRUST
DEFINITELY DIRECT THE CHARITABLE CONTRIBUTIONS WHICH ARE CLAIMED AS
DEDUCTIONS?  FN1 

CHARITABLE CONTRIBUTIONS BY INDIVIDUALS DOES NOT CONFINE THEM TO
PAYMENTS ACTUALLY MADE FROM INCOME, BUT DOES LIMIT THEIR AMOUNT TO 15%
OF THE NET RECEIVED DURING THE YEAR.  FN2  IN LIEU OF THESE DEDUCTIONS,
SEC. 162A PERMITS TRUST ESTATES TO DEDUCT CHARITABLE CONTRIBUTIONS TO
THE FULL EXTENT OF GROSS INCOME WHEN MADE PURSUANT TO THE TRUST DEED. 

WE ARE ASKED TO HOLD THAT THE WORDS "PURSUANT TO" MEAN DIRECTED OR
DEFINITELY ENJOINED.  AND THIS NOTWITHSTANDING THE ADMISSION THAT
CONGRESS INTENDED TO ENCOURAGE CHARITABLE CONTRIBUTIONS BY RELIEVING
THEM FROM TAXATION.  LEDERER V. STOCKTON, 260 U.S. 3; UNITED STATES V.
PROVIDENT TRUST CO., 291 U.S. 272, 285. 

"PURSUANT TO" IS DEFINED AS "ACTING OR DONE IN CONSEQUENCE OR IN
PROSECUTION (OF ANYTHING); HENCE, AGREEABLE; CONFORMABLE; FOLLOWING;
ACCORDING."  FN3 

THE WORDS OF THE STATUTE ARE PLAIN AND SHOULD BE ACCORDED THEIR USUAL
SIGNIFICANCE IN THE ABSENCE OF SOME DOMINANT REASON TO THE CONTRARY. 
WE FIND NOTHING IN THE REGULATIONS OR PRACTICE OF THE TREASURY
DEPARTMENT OR IN THE GENERAL PURPOSE OF THE STATUTE WHICH REQUIRES THE
NARROW MEANING ADVOCATED BY RESPONDENT.  NEITHER THE COMMISSIONER NOR
THE BOARD OF TAX APPEALS ACCEPTED OR MENTIONED WITH FAVOR THE
INTERPRETATION WHICH HIS COUNSEL NOW ADVANCE; AND THIS IS HARDLY
COMPATIBLE WITH THE THEORY OF CONTROLLING RULINGS OR PRACTICE BY THE
BUREAU. 

THE QUESTIONED DONATIONS WERE MADE BY THE PETITIONERS IN PURSUANCE OF
THE TRUST DEED. 

II.  IN ORDER THAT THEY MAY BE ALLOWED AS DEDUCTIONS IS IT NECESSARY
AFFIRMATIVELY TO SHOW THAT CHARITABLE CONTRIBUTIONS BY A TRUST ESTATE
WERE ACTUALLY PAID OUT OF INCOME RECEIVED DURING THE YEAR IN WHICH THEY
WERE MADE? 

LANGUAGE SHOULD BE CONSTRUED WITH THE VIEW OF CARRYING OUT THE PURPOSE
OF CONGRESS - EVIDENTLY THE ENCOURAGEMENT OF DONATIONS BY TRUST
ESTATES.  THERE ARE NO WORDS LIMITING THESE TO SOMETHING ACTUALLY PAID
FROM THE YEAR'S INCOME.  AND SO TO INTERPRET THE ACT COULD SERIOUSLY
INTERFERE WITH THE BENEFICENT PURPOSE.  ONE CREATING A TRUST MIGHT BE
UNWILLING TO BIND IT ABSOLUTELY TO PAY SOMETHING TO CHARITY BUT WOULD
AUTHORIZE HIS TRUSTEE SO TO DO AFTER CONSIDERING THEN EXISTING
CIRCUMSTANCES. 

CAPITAL AND INCOME ACCOUNTS IN THE CONDUCT OF THE BUSINESS OF ESTATES
ARE WELL UNDERSTOOD.  CONGRESS SOUGHT TO ENCOURAGE DONATIONS OUT OF
GROSS INCOME, AND WE FIND NO REASON FOR SAYING THAT IT INTENDED TO
LIMIT THE EXEMPTION TO SUMS WHICH THE TRUST COULD SHOW WERE ACTUALLY
PAID OUT OF RECEIPTS DURING A PARTICULAR TAX YEAR.  THE DESIGN WAS TO
FOREGO SOME POSSIBLE REVENUE IN ORDER TO PROMOTE AID TO CHARITY.  HERE
THE TRUSTEE RESPONDED TO AN IMPLIED INVITATION AND THE ESTATE OUGHT NOT
TO BE BURDENED IN CONSEQUENCE. 

THE JUDGMENT OF THE COURT BELOW MUST BE REVERSED AND THE CAUSE
RETURNED THERE FOR FURTHER PROCEEDINGS IN HARMONY WITH THIS OPINION. 
REVERSED. 

FN1  REVENUE ACT, 1928, SEC. 162, 45 STAT. 838. 

"SEC. 162.  NET INCOME. 

"THE NET INCOME OF THE ESTATE OR TRUST SHALL BE COMPUTED IN THE SAME
MANNER AND ON THE SAME BASIS AS IN THE CASE OF AN INDIVIDUAL, EXCEPT
THAT - 

"(A)  THERE SHALL BE ALLOWED AS A DEDUCTION (IN LIEU OF THE DEDUCTION
FOR CHARITABLE, ETC., CONTRIBUTIONS AUTHORIZED BY SECTION 23(N)) ANY
PART OF THE GROSS INCOME, WITHOUT LIMITATION, WHICH PURSUANT TO THE
TERMS OF THE WILL OR DEED CREATING THE TRUST, IS DURING THE TAXABLE
YEAR PAID OR PERMANENTLY SET ASIDE FOR THE PURPOSES AND IN THE MANNER
SPECIFIED IN SECTION 23(N), OR IS TO BE USED EXCLUSIVELY FOR RELIGIOUS,
CHARITABLE, SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES, OR FOR THE
PREVENTION OF CRUELTY TO CHILDREN OR ANIMALS, OR FOR THE ESTABLISHMENT,
ACQUISITION, MAINTENANCE OR OPERATION OF A PUBLIC CEMETERY NOT OPERATED
FOR PROFIT;...  (B) AND (C)." 

FN2  REVENUE ACT, 1928, SEC. 23, 45 STAT. 799. 

"SEC. 23.  DEDUCTIONS FROM GROSS INCOME. 

IN COMPUTING NET INCOME THERE SHALL BE ALLOWED AS DEDUCTIONS:...
(A), (B), ETC. 

(N)  CHARITABLE AND OTHER CONTRIBUTIONS.   - IN THE CASE OF AN
INDIVIDUAL, CONTRIBUTIONS OR GIFTS MADE WITHIN THE TAXABLE YEAR TO OR
FOR THE USE OF: 

(1)  THE UNITED STATES, ANY STATE, TERRITORY, OR ANY POLITICAL
SUBDIVISION THEREOF, OR THE DISTRICT OF COLUMBIA, FOR EXCLUSIVELY
PUBLIC PURPOSES; 

(2)  ANY CORPORATION, OR TRUST, OR COMMUNITY CHEST, FUND, OR
FOUNDATION, ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS,
CHARITABLE, SCIENTIFIC, LITERARY, OR EDUCATIONAL PURPOSES, OR FOR THE
PREVENTION OF CRUELTY TO CHILDREN OR ANIMALS, NO PART OF THE NET
EARNINGS OF WHICH INURES TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER OR
INDIVIDUAL; 

(3)  THE SPECIAL FUND FOR VOCATIONAL REHABILITATION AUTHORIZED BY

(4)  POSTS OR ORGANIZATIONS OF WAR VETERANS, OR AUXILIARY UNITS OR
SOCIETIES OF ANY SUCH POSTS OR ORGANIZATIONS, IF SUCH POSTS,
ORGANIZATIONS, UNITS, OR SOCIETIES ARE ORGANIZED IN THE UNITED STATES
OR ANY OF ITS POSSESSIONS, AND IF NO PART OF THEIR NET EARNINGS INURES
TO THE BENEFIT OF ANY PRIVATE SHAREHOLDER OR INDIVIDUAL; OR 

(5)  A FRATERNAL SOCIETY, ORDER, OR ASSOCIATION, OPERATING UNDER THE
LODGE SYSTEM, BUT ONLY IF SUCH CONTRIBUTIONS OR GIFTS ARE TO BE USED
EXCLUSIVELY FOR RELIGIOUS, CHARITABLE, SCIENTIFIC, LITERARY, OR
EDUCATIONAL PURPOSES, OR FOR THE PREVENTION OF CRUELTY TO CHILDREN OR
ANIMALS; TO AN AMOUNT WHICH IN ALL THE ABOVE CASES COMBINED DOES NOT
EXCEED 15 PER CENTUM OF THE TAXPAYER'S NET INCOME AS COMPUTED WITHOUT
THE BENEFIT OF THIS SUBSECTION.  SUCH CONTRIBUTIONS OR GIFTS SHALL BE
ALLOWABLE AS DEDUCTIONS ONLY IF VERIFIED UNDER RULES AND REGULATIONS
PRESCRIBED BY THE COMMISSIONER, WITH THE APPROVAL OF THE SECRETARY. 
(FOR UNLIMITED DEDUCTION IF CONTRIBUTIONS AND GIFTS EXCEED 90 PER
CENTUM OF THE NET INCOME, SEE SECTION 120.)" 

FN3  WEBSTER'S NEW INTERNATIONAL DICTIONARY, UNABRIDGED, 2ND ED.,
1935. 
..END :










LEWIS & CO. V. COMM'R., 301 U.S. 385 


NO. 743.  ARGUED APRIL 30, 1937.  - DECIDED MAY 17, 1937.  - 87 F.(2D)
1000, REVERSED. 


A LANDOWNER MADE A DECLARATION PLACING TITLE IN A TRUSTEE FOR THE
BENEFIT OF HERSELF AND AN AGENT EMPOWERED BY HER TO SUBDIVIDE AND SELL
THE LAND, WHOSE COMPENSATION WAS TO BE A FIXED PERCENTAGE OF PAYMENTS
MADE BY PURCHASERS.  THE FUNCTION OF THE TRUSTEE WAS TO HOLD THE TITLE,
EXECUTE CONTRACTS AND CONVEYANCES AT THE DIRECTION OF THE AGENT, AND TO
MAKE COLLECTIONS.  HELD THAT THE TRUST WAS NOT AN "ASSOCIATION" WITHIN
THE MEANING OF SEC. 701(A)(2) OF THE REVENUE ACT OF 1928, AND THEREFORE
NOT TAXABLE AS A CORPORATION.  PP. 386, 389. 

A.A. LEWIS & CO. ET AL. V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 300 U.S. 651, TO REVIEW THE REVERSAL OF A DECISION OF THE
BOARD OF TAX APPEALS DISAPPROVING AN INCOME TAX DEFICIENCY ASSESSMENT. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

ON JANUARY 3, 1934, THE COMMISSIONER OF INTERNAL REVENUE ASSESSED A
DEFICIENCY OF INCOME TAXES FOR THE YEAR 1931 AGAINST PETITIONERS IN THE
SUM OF $512.30.  THE BOARD OF TAX APPEALS, UPON PETITION AND AFTER
HEARING, DETERMINED THAT THERE WAS NO DEFICIENCY.  UPON REVIEW, THE
COURT BELOW, WITHOUT OPINION, REVERSED THE DECISION OF THE BOARD OF TAX
APPEALS. 

THE CASE INVOLVES THE RELATIONS OF PETITIONERS UNDER A DECLARATION OF
TRUST AND AN AGREEMENT ATTACHED THERETO.  AND THE QUESTION FOR DECISION
IS WHETHER THE TRUST CONSTITUTES AN ASSOCIATION, TO BE TAXED AS A
CORPORATION, WITHIN THE MEANING OF SEC. 701(A)(2) OF THE REVENUE ACT OF
1928, WHICH PROVIDES THAT, WHEN USED IN THE ACT, "THE TERM
'CORPORATION' INCLUDES ASSOCIATIONS, JOINT-STOCK COMPANIES, AND
INSURANCE COMPANIES."  THE COMMISSIONER, WHOSE ACTION WAS AFFIRMED BY
THE LOWER COURT, RULED THAT UPON THE FACTS STATED BELOW THERE WAS A
TAXABLE "ASSOCIATION" WITHIN THE REACH OF THIS STATUTORY PROVISION. 
THE BOARD OF TAX APPEALS HELD TO THE CONTRARY. 

MINERVA S. MELIDONES, HEREAFTER CALLED THE GRANTOR, IN 1925, IN ORDER
TO SUBDIVIDE AND SELL A TRACT OF LAND WHICH SHE OWNED, MADE THE
DECLARATION OF TRUST HERE IN QUESTION, PLACING THE TITLE IN THE
PREDECESSOR OF THE CENTRAL REPUBLIC TRUST COMPANY, AS TRUSTEE FOR THE
USE AND BENEFIT OF HERSELF AND A. A. LEWIS, BOTH OF WHOM SIGNED THE
INSTRUMENT AS BENEFICIARIES.  THE TRUSTEE WAS GIVEN POWER TO DEAL WITH
THE REAL ESTATE SO FAR AS THE PUBLIC WAS CONCERNED, BUT WAS TO DO SO
ONLY IN ACCORDANCE WITH THE AGREEMENT ATTACHED TO THE TRUST
INSTRUMENT.  THAT AGREEMENT, BEARING THE SAME DATE AS THE DECLARATION
OF TRUST, WAS EXECUTED BY THE GRANTOR, LEWIS AND THE TRUSTEE.  THE
GRANTOR, BY THE AGREEMENT, APPOINTED LEWIS, AN EXPERIENCED REAL-ESTATE
OPERATOR, AS EXCLUSIVE SELLING AGENT AND AS "MANAGER OF THE TRUST
CREATED BY SAID DEED IN TRUST AND TRUST AGREEMENT AFORESAID"; AND HE
WAS GIVEN "SUCH POWERS AND DUTIES IN CONNECTION WITH THE ADMINISTRATION
OF THE TRUST AS MAY BE NECESSARY TO FACILITATE THE SALE OF THE SAID
LAND."  HE WAS AUTHORIZED TO EXERCISE MANAGEMENT AND CONTROL OF THE
PROPERTY FOR THE PURPOSES OF SALE; AT HIS OWN EXPENSE TO EMPLOY A SALES
ORGANIZATION; TO ENTER INTO CONTRACTS WITH PURCHASERS AS MANAGER OF THE
TRUST; AND TO REQUEST THE TRUSTEE TO EXECUTE DEEDS AND OTHER NECESSARY
INSTRUMENTS.  CONTRACTS WERE TO BE MADE, AND TITLE WAS TO BE CONVEYED
BY THE TRUSTEE TO PURCHASERS, UPON LEWIS' WRITTEN DIRECTIONS.  HE WAS
TO RECEIVE AS SOLE COMPENSATION FOR HIS SERVICES COMMISSIONS BASED UPON
THE PRICE FOR WHICH THE LOTS IN THE SUBDIVISION WERE SOLD.  THE TRUSTEE
WAS TO COLLECT AND DISTRIBUTE PAYMENTS AFTER THE INITIAL PAYMENT; BUT
WAS TO HAVE NOTHING TO DO WITH THE SALES OF LOTS OR NEGOTIATIONS
RELATING THERETO. 

THE GRANTOR SUBSEQUENTLY ASSIGNED HER BENEFICIAL INTEREST IN THE
TRUST TO BENJAMIN SCHWARTZ, TO WHICH HIS ESTATE HAS SUCCEEDED AS SOLE
BENEFICIARY.  THE TRUST INSTRUMENT PROVIDES THAT TRANSFERRABLE
CERTIFICATES MAY BE ISSUED BY THE TRUSTEE; BUT NONE WAS EVER ISSUED. 

IF IT WERE NOT FOR THE DECLARATION OF TRUST, WE SHOULD HAVE HERE THE
SIMPLE CASE OF AN APPOINTMENT BY A LAND OWNER OF AN AGENT TO SUBDIVIDE
THE LAND AND SELL IT, RECEIVING AS COMPENSATION FOR HIS SERVICES A
FIXED PERCENTAGE OF THE PAYMENTS MADE BY THE PURCHASERS.  IT IS QUITE
EVIDENT THAT SUCH AN ARRANGEMENT HAS NO ELEMENT OF SUBSTANCE OR METHOD
WHICH WOULD WARRANT ITS DESIGNATION AS AN ASSOCIATION UNDER THE
STATUTORY PROVISION IN QUESTION.  NOR CAN WE SEE THAT THE INTERVENTION
OF A TRUSTEE TO HOLD TITLE, EXECUTE CONTRACTS AND CONVEYANCES AT THE
DIRECTION OF THE REAL-ESTATE AGENT AND MAKE COLLECTIONS ALTERS THE
SITUATION. 

THE QUESTION RECENTLY HAS RECEIVED FULL CONSIDERATION IN MORRISSEY V.
COMMISSIONER, 296 U.S. 344, AND THREE OTHER CASES WHICH IMMEDIATELY
FOLLOW IN THE SAME VOLUME.*THE TRUST REVIEWED IN THE MORRISSEY CASE WAS
ESSENTIALLY UNLIKE THAT NOW UNDER CONSIDERATION.  THERE, THE TRUST WAS
A MEDIUM FOR THE CARRYING ON OF A BUSINESS ENTERPRISE BY THE TRUSTEES
AND PARTICIPATION IN THE PROFITS BY NUMEROUS BENEFICIARIES WHOSE
INTERESTS WERE REPRESENTED BY TRANSFERRABLE SHARE CERTIFICATES, THUS
PERMITTING THE INTRODUCTION OF NEW PARTICIPANTS WITHOUT AFFECTING THE
CONTINUITY OF THE PLAN.  THE CERTIFICATES REPRESENTED BOTH PREFERRED
AND COMMON SHARES.  WE POINTED OUT THAT THE CORPORATE ANALOGY WAS
EVIDENCED BY CENTRALIZED CONTROL, CONTINUITY AND LIMITED LIABILITY, AS
WELL AS BY THE ISSUE OF TRANSFERRABLE CERTIFICATES; AND WE SAID (P.
356) THAT THE WORD "ASSOCIATION" IMPLIES ASSOCIATES.  "IT IMPLIES THE
ENTERING INTO A JOINT ENTERPRISE, AND, AS THE APPLICABLE (DEPARTMENTAL)
REGULATION IMPORTS, AN ENTERPRISE FOR THE TRANSACTION OF BUSINESS. 
THIS IS NOT THE CHARACTERISTIC OF AN ORDINARY TRUST - WHETHER CREATED
BY WILL, DEED, OR DECLARATION - BY WHICH PARTICULAR PROPERTY IS
CONVEYED TO A TRUSTEE OR IS TO BE HELD BY THE SETTLOR, ON SPECIFIED
TRUSTS, FOR THE BENEFIT OF NAMED OR DESCRIBED PERSONS.  SUCH
BENEFICIARIES DO NOT ORDINARILY, AND AS MERE CESTUIS QUE TRUSTENT, PLAN
A COMMON EFFORT OR ENTER INTO A COMBINATION FOR THE CONDUCT OF A
BUSINESS ENTERPRISE." 

*SWANSON V. COMMISSIONER, 296 U.S. 362; HELVERING V. COMBS, 296 U.S.
365; HELVERING V. COLEMAN-GILBERT ASSOCIATES, 296 U.S. 369. 

THE ARRANGEMENT HERE ANSWERS THE FOREGOING DESCRIPTION OF AN ORDINARY
TRUST - THAT IS, IT WAS CREATED IN VIRTUE OF A DECLARATION BY WHICH A
DESIGNATED PIECE OF REAL PROPERTY WAS CONVEYED TO THE TRUSTEE ON
SPECIFIED TRUSTS, FOR THE BENEFIT OF DEFINITELY NAMED PERSONS, ONE OF
WHOM WAS THE GRANTOR OF THE LAND AND THE OTHER AN AGENT OF THE GRANTOR
FOR THE SOLE PURPOSE OF SUBDIVIDING AND SELLING THE LAND.  THE AGENT
WAS DESIGNATED BY NAME, AND HIS POWERS DEFINITELY FIXED IN ADVANCE OF
THEIR EXERCISE.  HE POSSESSED NO AUTHORITY BEYOND THAT EXPRESSLY
DELEGATED BY HIS PRINCIPAL.  THE TRUST WAS ADOPTED MERELY AS A
CONVENIENT MEANS OF MAKING EFFECTIVE THE SALES OF THE AGENT UNDER THE
CONTRACT.  THE DUTIES OF THE TRUSTEE WERE PURELY MINISTERIAL, WITH NO
POWER TO CONTROL, DIRECT, OR PARTICIPATE IN, THE CONDUCT OF THE SELLING
ENTERPRISE CONTEMPLATED BY THE CONTRACT.  THERE IS TO BE FOUND IN THE
OPERATION OF THE BUSINESS NO ESSENTIAL CHARACTERISTIC OF CORPORATE
CONTROL - NOTHING ANALOGOUS TO A BOARD OF DIRECTORS OR SHAREHOLDERS, NO
EXEMPTION FROM PERSONAL LIABILITY, NO ISSUE OF TRANSFERRABLE
CERTIFICATES OF INTEREST.  THERE IS SIMPLY THE COMMON RELATION OF
PRINCIPAL AND AGENT, COUPLED WITH THE COLLATERAL INCIDENTS OF AN
ORDINARY TRUST.  WE ARE NOT ABLE TO FIND IN THE SITUATION AN
"ASSOCIATION" WITHIN THE MEANING OF THE STATUTE UNDER CONSIDERATION,
BECAUSE THERE ARE NO ASSOCIATES AND NO FEATURE "MAKING (THE TRUST)
ANALOGOUS TO A CORPORATE ORGANIZATION."  296 U.S. AT P. 359.  JUDGMENT
REVERSED. 
..END :






AETNA INS. CO. V. KENNEDY, 301 U.S. 389 


NO. 753.  ARGUED APRIL 30, 1937.  - DECIDED MAY 17, 1937.  - 87 F.(2D)
684, MODIFIED. 


1.  EVERY REASONABLE PRESUMPTION IS INDULGED AGAINST WAIVER OF THE
RIGHT OF TRIAL BY JURY.  P. 393. 

2.  A CASE IS NOT TAKEN FROM THE JURY AND SUBMITTED TO THE COURT FOR
DECISION OF FACT AS WELL AS OF LAW, IF, ACCOMPANYING THE REQUEST OF THE
PARTIES FOR PEREMPTORY INSTRUCTIONS, THERE ARE OTHER REQUESTS IN WHICH
ARE REASONABLY TO BE IMPLIED REQUESTS TO GO TO THE JURY IF A PEREMPTORY
INSTRUCTION BE DENIED.  P. 393. 

3.  WHERE THE DISTRICT COURT DENIED THE PARTIES' MOTIONS FOR DIRECTED
VERDICTS WITHOUT RESERVING ANY QUESTION OF LAW, AND UNCONDITIONAL
VERDICTS WERE RETURNED FOR DEFENDANTS, HELD THAT NEITHER THAT COURT NOR
THE CIRCUIT COURT OF APPEALS HAD JURISDICTION TO FIND OR ADJUDGE THAT
NOTWITHSTANDING THE VERDICTS PLAINTIFF WAS ENTITLED TO RECOVER.  SLOCUM
V. NEW YORK LIFE INS. CO., 228 U.S. 364, 387.  BALTIMORE & C. LINE V.
REDMAN, 295 U.S. 364, DISTINGUISHED.  P. 394. 

4.  UNDER THE CONFORMITY ACT, THE DISTRICT COURTS FOLLOW THE PRACTICE
AUTHORIZED BY STATE STATUTES IF THERE BE NOTHING IN THEM THAT IS
INCONGRUOUS WITH THE ORGANIZATION OR THE FUNDAMENTAL PROCEDURE OF THOSE
COURTS, OR IN CONFLICT WITH CONGRESSIONAL ENACTMENT.  P. 394. 

5.  THE CONFORMITY ACT DOES NOT EXTEND TO THE CIRCUIT COURT OF
APPEALS.  P. 395. 

6.  IN PENNSYLVANIA, A PARTY WHO WOULD INVOKE THE POWER OF THE TRIAL
COURT TO ENTER JUDGMENT NON OBSTANTE VEREDICTO UNDER ACT OF APRIL 22,
1905, P.L. 286, SHOULD MOVE FOR SUCH A JUDGMENT, NOT MERELY FOR A NEW
TRIAL.  P. 394. 

7.  A MORTGAGEE CLAUSE IN A FIRE POLICY CREATES A CONTRACT OF
INSURANCE BETWEEN THE MORTGAGEE AND THE INSURER UPON THE MORTGAGEE'S
SEPARATE INTEREST.  P. 395. 

8.  POLICIES OF FIRE INSURANCE, TAKEN OUT BY A SECOND MORTGAGEE BUT
INSURING ALSO THE FIRST MORTGAGEE, WERE SURRENDERED BY THE FORMER, AND
CANCELED WITHOUT NOTICE TO THE LATTER.  EVIDENCE HELD INSUFFICIENT TO
PROVE THAT THIS WAS DONE WITH THE LATTER'S CONSENT.  P. 396. 

AETNA INSURANCE CO. V. KENNEDY TO THE USE OF BOGASH.* 

*TOGETHER WITH NO. 754, SPRINGFIELD FIRE & MARINE INSURANCE CO. V.
KENNEDY TO THE USE OF BOGASH; AND NO. 755, LIVERPOOL & LONDON & GLOBE
INSURANCE CO. V. KENNEDY TO THE USE OF BOGASH.  ON WRITS OF CERTIORARI
TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 300 U.S. 651, TO REVIEW JUDGMENTS OF THE CIRCUIT COURT OF
APPEALS WHICH REVERSED JUDGMENTS OF THE DISTRICT COURT FOR THE INSURERS
IN ACTIONS ON POLICIES OF FIRE INSURANCE, AND WHICH REMANDED THE CASES
TO THE DISTRICT COURT WITH INSTRUCTIONS TO ENTER JUDGMENTS FOR THE
INSURED.  SEE ALSO 87 F.(2D) 683. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

KENNEDY HAD A FIRST MORTGAGE, AND A BANK A SECOND MORTGAGE, ON OLD
BREWERY PROPERTY IN PENNSYLVANIA OWNED BY A DISTILLING COMPANY.  THE
BANK PROCURED FROM PETITIONERS FIRE INSURANCE POLICIES COVERING THE
BUILDING.  EACH POLICY STATES IT IS UNDERSTOOD THAT THE INSURED
BUILDING IS UNDER FORECLOSURE BY THE BANK; THE PREMIUM BEING PAID BY
THE BANK, IT IS AGREED THAT, IN EVENT OF LOSS, SAME WILL BE ADJUSTED
WITH THE BANK AND PAID TO IT AND KENNEDY, MORTGAGEE, AS INTEREST MAY
APPEAR.  EACH PROVIDES FOR CANCELATION UPON REQUEST OF THE INSURED AND
THAT THE COMPANY MAY CANCEL BY GIVING INSURED FIVE DAYS' WRITTEN
NOTICE.  IT INCLUDES THE STANDARD MORTGAGEE CLAUSE WHICH PROVIDES:
LOSS OR DAMAGE SHALL BE PAYABLE TO KENNEDY AS MORTGAGEE AS INTEREST MAY
APPEAR; INSURANCE AS TO THE INTEREST OF THE MORTGAGEE SHALL NOT BE
INVALIDATED BY ANY ACT OF THE MORTGAGOR OR OWNER; IN CASE THE MORTGAGOR
OR OWNER SHALL NEGLECT TO PAY PREMIUM THE MORTGAGEE SHALL, ON DEMAND,
PAY THE SAME.  THE COMPANY RESERVES THE RIGHT TO CANCEL THE POLICY AT
ANY TIME AS PROVIDED BY ITS TERMS, BUT IN SUCH CASE THE POLICY IS TO
CONTINUE IN FORCE FOR THE BENEFIT OF THE MORTGAGEE FOR TEN DAYS AFTER
NOTICE TO HIM. 

AFTER THE BID AT SHERIFF'S SALE IN THE FORECLOSURE PROCEEDINGS, THE
BANK ABANDONED ITS INTEREST IN THE PROPERTY AS WORTHLESS, NOTIFIED
KENNEDY THAT IT INTENDED TO CANCEL THE POLICIES AND SUGGESTED THAT HE
BUY THEM.  HE DECLINED TO DO SO OR TO PAY THE BANK ANY PART OF THE
PREMIUMS AND EXPRESSED INTENTION NOT TO ADVANCE ANY MONEY IN RESPECT OF
THE INSURED BUILDING.  THE BANK SURRENDERED THE POLICIES FOR
CANCELATION; PETITIONERS PAID IT THE UNEARNED PREMIUMS.  LATER, AND
WITHIN THE PERIOD FOR WHICH PETITIONERS HAD INSURED IT, THE BUILDING
BURNED.  BOGASH ACQUIRED KENNEDY'S INTEREST AND, TO RECOVER ON THE
POLICIES, BROUGHT THESE SUITS.  UPON THE STATEMENTS OF CLAIM AND
AFFIDAVITS OF DEFENSE, THERE AROSE QUESTIONS WHETHER KENNEDY CONSENTED
TO OR ACQUIESCED IN THE SURRENDER AND CANCELATION OF THE POLICIES AND
WHETHER THEY WERE IN FORCE WHEN THE LOSS OCCURRED OR HAD BEEN
SURRENDERED AND CANCELED BEFORE THAT TIME. 

THE PARTIES, HAVING INTRODUCED THEIR EVIDENCE AND AGREED THAT THE
AMOUNT OF THE LOSS WAS $11,000, SUBMITTED THEIR POINTS FOR CHARGE TO
THE JURY.  PLAINTIFF REQUESTED THE COURT TO INSTRUCT THE JURY IN
RESPECT OF NOTICE TO KENNEDY OF CANCELATION AND SURRENDER OF THE
POLICIES, AND CONSENT BY HIM THAT THEY BE CANCELED, AND TO DIRECT
VERDICTS IN FAVOR OF PLAINTIFF FOR THE AGREED AMOUNT.  DEFENDANTS
REQUESTED THE COURT TO INSTRUCT THE JURY IN RESPECT OF THE RIGHT OF
CANCELATION UNDER THE POLICIES; THAT, IF THE JURY SHOULD FIND FACTS
SPECIFIED IN THE PROPOSED INSTRUCTIONS, ITS VERDICTS SHOULD BE FOR
DEFENDANTS, AND TO DIRECT THE JURY THAT, UPON THE PLEADINGS AND
EVIDENCE, THE VERDICTS MUST BE FOR DEFENDANTS.  THE COURT REFUSED TO
DIRECT FOR PLAINTIFF OR DEFENDANTS AND, WITHOUT RESERVING FOR LATER
CONSIDERATION THE REQUESTS FOR DIRECTED VERDICTS OR ANY QUESTION OF
LAW, SUBMITTED THE CASES TO THE JURY.  IT FOUND FOR DEFENDANTS. 
PLAINTIFF FILED MOTIONS FOR NEW TRIAL BUT DID NOT MOVE FOR JUDGMENTS
NON OBSTANTE VEREDICTO.  THE COURT DENIED THE MOTIONS AND ENTERED
JUDGMENTS FOR DEFENDANTS. 

PLAINTIFF APPEALED; THE CIRCUIT COURT OF APPEALS HELD THE TRIAL COURT
ERRED IN REFUSING TO CHARGE ON POINTS CONCERNING NOTICE OF CANCELATION
TO KENNEDY, REVERSED THE JUDGMENTS OF THE DISTRICT COURT AND ORDERED
NEW TRIALS.  87 F.(2D) 683.  BUT ON PLAINTIFF'S APPLICATION FOR
REHEARING IT HELD THAT, BY THEIR REQUESTS FOR PEREMPTORY INSTRUCTIONS,
PLAINTIFF AND DEFENDANTS ASSUMED THE FACTS TO BE UNDISPUTED AND
SUBMITTED TO THE TRIAL JUDGE THE DETERMINATION OF THE INFERENCES TO BE
DRAWN FROM THE EVIDENCE AND SO TOOK THE CASES FROM THE JURY.  THE COURT
ALSO HELD THAT THE EVIDENCE WAS NOT SUFFICIENT TO SUSTAIN VERDICTS FOR
DEFENDANTS, DENIED THE PETITION FOR REHEARING AND REMANDED THE CASES TO
THE DISTRICT COURT WITH DIRECTIONS TO GIVE PLAINTIFF JUDGMENTS FOR THE
AGREED AMOUNT OF THE LOSS.  87 F.(2D) 684. 

QUESTIONS PRESENTED ARE:  WHETHER, BY THEIR REQUEST FOR DIRECTED
VERDICTS, THE PARTIES WAIVED THEIR RIGHT TO TRIAL BY JURY; WHETHER, BY
REVERSING THE JUDGMENTS FOR DEFENDANTS AND DIRECTING JUDGMENTS FOR
PLAINTIFF, THE CIRCUIT COURT OF APPEALS DEPRIVED DEFENDANTS OF THAT
RIGHT; AND WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN A FINDING
THAT KENNEDY CONSENTED TO THE CANCELATION OF THE POLICIES. 

1.  THE CIRCUIT COURT OF APPEALS ERRED IN HOLDING THAT, BY THEIR
REQUESTS FOR PEREMPTORY INSTRUCTIONS, THE PARTIES TOOK THE CASES FROM
THE JURY AND APPLIED TO THE JUDGE FOR DECISION OF THE ISSUES OF FACT AS
WELL AS OF LAW.  THE ESTABLISHED RULE IS THAT WHERE PLAINTIFF AND
DEFENDANT RESPECTIVELY REQUEST PEREMPTORY INSTRUCTIONS, AND DO NOTHING
MORE, THEY THEREBY ASSUME THE FACTS TO BE UNDISPUTED AND IN EFFECT
SUBMIT TO THE TRIAL JUDGE THE DETERMINATION OF THE INFERENCES PROPERLY
TO BE DRAWN FROM THEM.  AND UPON REVIEW A FINDING OF FACT BY THE TRIAL
COURT UNDER SUCH CIRCUMSTANCES MUST STAND IF THE RECORD DISCLOSES
SUBSTANTIAL EVIDENCE TO SUPPORT IT.  FN1  BUT, AS THE RIGHT OF JURY
TRIAL IS FUNDAMENTAL, COURTS INDULGE EVERY REASONABLE PRESUMPTION
AGAINST WAIVER.  FN2  AND UNQUESTIONABLY THE PARTIES RESPECTIVELY MAY
REQUEST A PEREMPTORY INSTRUCTION AND, UPON REFUSAL OF THE COURT TO
DIRECT A VERDICT, HAVE SUBMITTED TO THE JURY ALL ISSUES AS TO WHICH
OPPOSING INFERENCES MAY BE DRAWN FROM THE EVIDENCE.  FN3  HERE NEITHER
THE PLAINTIFF NOR THE DEFENDANTS APPLIED FOR DIRECTED VERDICTS WITHOUT
MORE.  WITH THEIR REQUESTS FOR PEREMPTORY INSTRUCTIONS THEY SUBMITTED
OTHER REQUESTS THAT REASONABLY MAY BE HELD TO AMOUNT TO APPLICATIONS
THAT, IF A PEREMPTORY INSTRUCTION WERE NOT GIVEN, THE CASES BE
SUBMITTED TO THE JURY.  INDEED, WE FIND NOTHING IN THE RECORD TO
SUPPORT THE VIEW THAT THE PARTIES WAIVED THEIR RIGHT OF TRIAL BY JURY
OR AUTHORIZED THE JUDGE TO DECIDE ANY ISSUE OF FACT. 

2.  THE VERDICTS WERE TAKEN UNCONDITIONALLY.  PLAINTIFF MOVED FOR NEW
TRIALS BUT NOT FOR JUDGMENTS.  THE COURT DENIED HER MOTIONS AND ENTERED
JUDGMENTS FOR DEFENDANTS.  THE CIRCUIT COURT OF APPEALS HAD
JURISDICTION TO REVERSE AND REMAND FOR NEW TRIALS BUT WAS WITHOUT
POWER, CONSISTENTLY WITH THE SEVENTH AMENDMENT, TO DIRECT THE TRIAL
COURT TO GIVE JUDGMENTS FOR PLAINTIFF.  AND, AS BEFORE SUBMISSION OF
THE CASE TO THE JURY THE TRIAL COURT DENIED PLAINTIFF'S MOTION FOR
DIRECTED VERDICTS WITHOUT RESERVING ANY QUESTION OF LAW, NEITHER THAT
COURT NOR THE CIRCUIT COURT OF APPEALS HAD JURISDICTION TO FIND OR
ADJUDGE THAT NOTWITHSTANDING THE VERDICTS PLAINTIFF WAS ENTITLED TO
RECOVER.  SLOCUM V. NEW YORK LIFE INS. CO., 228 U.S. 364, 387.  OUR
DECISION IN BALTIMORE & CAROLINA LINE V. REDMAN, 295 U.S. 654, IS NOT
APPLICABLE. 

THERE IS ANOTHER REASON WHY THE DIRECTION OF JUDGMENTS FOR PLAINTIFF
CANNOT STAND.  UNDER THE CONFORMITY ACT, 28 U.S.C., SEC. 724, FEDERAL
COURTS FOLLOW THE PRACTICE AUTHORIZED BY STATE STATUTES IF THERE BE
NOTHING IN THEM THAT IS INCONGRUOUS WITH THEIR ORGANIZATION OR THEIR
FUNDAMENTAL PROCEDURE OR IN CONFLICT WITH CONGRESSIONAL ENACTMENT.  FN4
THE APPLICABLE PENNSYLVANIA STATUTE PROVIDES THAT WHENEVER, UPON THE
TRIAL OF ANY CAUSE, A POINT REQUESTING BINDING INSTRUCTIONS HAS BEEN
RESERVED OR DECLINED, THE PARTY PRESENTING THE POINT MAY MOVE THE COURT
FOR JUDGMENT NON OBSTANTE VEREDICTO; WHEREUPON IT SHALL BE THE DUTY OF
THE COURT, IF IT DOES NOT GRANT A NEW TRIAL, TO ENTER SUCH JUDGMENT AS
SHOULD HAVE BEEN ENTERED UPON THE EVIDENCE.  FROM THE JUDGMENT THUS
ENTERED EITHER PARTY MAY APPEAL TO THE SUPREME OR SUPERIOR COURT, WHICH
SHALL REVIEW THE ACTION OF THE COURT BELOW, AND ENTER SUCH JUDGMENT AS
SHALL BE WARRANTED BY THE EVIDENCE TAKEN IN THAT COURT.  FN5  AS
PLAINTIFF FAILED TO MAKE APPROPRIATE MOTIONS IN ACCORDANCE WITH
PENNSYLVANIA PRACTICE, THE DISTRICT COURT DID NOT ERR IN FAILING TO
GIVE PLAINTIFF JUDGMENTS NOTWITHSTANDING THE VERDICTS.  FN6  THE
CONFORMITY ACT DOES NOT EXTEND TO THE CIRCUIT COURT OF APPEALS.  FN7
IN THE ABSENCE OF MOTIONS FOR JUDGMENTS NOTWITHSTANDING THE VERDICT IN
THE LOWER COURT, THE APPELLATE COURT WAS WITHOUT AUTHORITY TO DIRECT
ENTRY OF JUDGMENTS FOR PLAINTIFF. 

3.  WAS THE EVIDENCE SUFFICIENT TO SUSTAIN A FINDING THAT, AS TO
KENNEDY'S INTEREST, THE INSURANCE TERMINATED BEFORE THE FIRE?  AS THE
PERIOD FOR WHICH THE POLICIES WERE WRITTEN HAD NOT EXPIRED WHEN THE
LOSS OCCURRED, DEFENDANTS HAD THE BURDEN TO SHOW THAT THE INSURANCE WAS
NOT IN FORCE AT THAT TIME.  KENNEDY WAS NOT MERELY A DESIGNATED
BENEFICIARY TO WHOM WAS PAYABLE, AS SPECIFIED, INSURANCE OBTAINED BY
THE BANK.  THE MORTGAGEE CLAUSE CREATED A CONTRACT OF INSURANCE BETWEEN
HIM AND THE COMPANY AND EFFECTED SEPARATE INSURANCE UPON HIS INTEREST. 
FN8  DEFENDANTS DO NOT CLAIM THAT THEY GAVE KENNEDY ANY NOTICE OF
INTENTION TO CANCEL HIS INSURANCE OR THAT THE POLICIES HAD BEEN
SURRENDERED BY THE BANK IN ACCORDANCE WITH THEIR TERMS OR OTHERWISE. 

THE EVIDENCE SHOWS:  AFTER BIDS WERE RECEIVED AT FORECLOSURE SALE THE
BANK'S ATTORNEY ASKED KENNEDY TO TAKE OVER THE POLICIES AND, UPON HIS
REFUSAL SO TO DO OR TO PAY THE BANK ANYTHING ON ACCOUNT OF UNEARNED
PREMIUMS, INFORMED HIM THAT THE BANK INTENDED TO SURRENDER THE
POLICIES.  HE EXPRESSED NO OBJECTION, AUTHORIZATION OR CONSENT.  THERE
IS NO EVIDENCE THAT BEFORE THE FIRE KENNEDY HAD BEEN NOTIFIED BY THE
BANK OR BY THE DEFENDANTS, OR KNEW, THAT THE BANK HAD SURRENDERED THE
POLICIES OR RECEIVED RETURN PREMIUMS OR THAT DEFENDANTS ATTEMPTED TO
CANCEL HIS INSURANCE.  THE EVIDENCE IS NOT ENOUGH TO SUPPORT A FINDING
THAT HE INTENDED THE BUILDING TO BECOME OR REMAIN UNINSURED OR
AUTHORIZE THE BANK TO ACT FOR HIM IN RESPECT OF HIS INSURANCE, OR THAT
HE CONSENTED TO, ACQUIESCED IN OR RATIFIED THE SURRENDER OR CANCELATION
OF THE POLICIES.  DEFENDANTS DO NOT CLAIM THAT THEY CANCELED KENNEDY'S
INSURANCE BY GIVING HIM NOTICE IN ACCORDANCE WITH THE POLICIES.  THE
CIRCUIT COURT OF APPEALS RIGHTLY REVERSED THE JUDGMENTS OF THE DISTRICT
COURT BUT ERRONEOUSLY DIRECTED JUDGMENTS FOR PLAINTIFF. 

THE JUDGMENTS OF THE CIRCUIT COURT OF APPEALS ARE ACCORDINGLY
MODIFIED BY ELIMINATING THE DIRECTIONS TO ENTER JUDGMENTS FOR PLAINTIFF
AND BY SUBSTITUTING ORDERS FOR NEW TRIALS.  JUDGMENTS MODIFIED. 

FN1  BEUTELL V. MAGONE, 157 U.S. 154, 157.  SENA V. AMERICA TURQUOISE
CO., 220 U.S. 497, 501.  AMERICAN NAT. BANK V. MILLER, 229 U.S. 517,
520.  WILLIAMS V. VREELAND, 250 U.S. 295, 298.  OPPENHEIMER V. HARRIMAN
NAT. BANK, ANTE, PP. 206, 208. 

FN2  HODGES V. EASTON, 106 U.S. 408, 412.  SLOCUM V. NEW YORK LIFE
INS. CO., 228 U.S. 364, 385.  PATTON V. UNITED STATES, 281 U.S. 276,
312.  DIMICK V. SCHIEDT, 293 U.S. 474, 486.  FOUST V. MUNSON S.S. LINE,
299 U.S. 77, 84. 

FN3  EMPIRE STATE CATTLE CO. V. ATCHISON, T. & S.F. RY. CO., 210 U.S.
1, 8.  SAMPLINER V. MOTION PICTURE PATENTS CO., 254 U.S. 233, 239. 

FN4  HENDERSON V. LOUISVILLE & N.R. CO., 123 U.S. 61, 64.  AMY V.
WATERTOWN, NO. 1., 130 U.S. 301, 304.  BARRETT V. VIRGINIAN RY. CO.,
250 U.S. 473, 475.  BALTIMORE & CAROLINA LINE V. REDMAN, 295 U.S. 654,
658.  CF. NUDD V. BURROWS, 91 U.S. 426, 441.  INDIANAPOLIS & ST. L.R.
CO. V. HORST, 93 U.S. 291, 300. 

FN5  ACT OF APRIL 22, 1905, P.L. 286; 12 PURDON'S PENNA.  STATUTES
ANNOTATED, SEC. 681.  QUOTED IN SLOCUM V. NEW YORK LIFE INS. CO., 228
U.S. 364, 375-376. 

FN6 WEST V. MANATAWNY MUT. F. & S. INS. CO., 277 PA. 102; 120 ATL.
763.  COX V. ROEHLER, 316 PA. 417, 419-420; 175 ATL. 417. 

FN7  CAMP V. GRESS, 250 U.S. 308, 318. 

FN8  SYNDICATE INS. CO. V. BOHN, 65 FED. 165, 178.  INSURANCE CO. V.
INTERNATIONAL TRUST CO., 71 FED. 88, 91.  NEWARK FIRE INS. CO. V. TURK,
6 F.(2D) 533, 535.  WESTCHESTER FIRE INS. CO. V. NORFOLK BUILDING &
LOAN ASSN., 14 F.(2D) 524, 526.  QUEEN INS. CO. V. PEOPLE'S UNION SAV.
BANK, 50 F.(2D) 63, 64.  KIMBERLEY & CARPENTER V. FIREMAN'S FUND INS.
CO., 78 F.(2D) 62, 64.  4 JOYCE, LAW OF INSURANCE, 2ND ED., SEC. 2795,
P. 4776.  RICHARDS, LAW OF INSURANCE, 4TH ED., SEC. 279, P. 478.  VANCE
ON INSURANCE, 2ND ED., SEC. 170, P. 657. 
..END :










LINDSEY V. WASHINGTON, 301 U.S. 397 


NO. 660.  ARGUED MAY 3, 1937.  - DECIDED MAY 17, 1937.  - 187 WASH. 364
61 P.(2D) 293, REVERSED. 


A STATE STATUTE MAKING MORE ONEROUS THE STANDARD OF PUNISHMENT IS EX
POST FACTO AND VOID AS APPLIED TO A CRIME COMMITTED BEFORE ITS
ENACTMENT.  P. 401. 

UNDER THE LAW OF THE STATE OF WASHINGTON AT THE TIME OF THE ALLEGED
OFFENSE, IMPRISONMENT OF THE ACCUSED COULD HAVE BEEN FIXED BY THE JUDGE
AT LESS THAN THE MAXIMUM OF 15 YEARS.  BY THE LAW AS AMENDED AND
APPLIED (C. 114, L. WASH., 1935), SENTENCE FOR 15 YEARS WAS MADE
MANDATORY; A PAROLE BOARD WAS EMPOWERED TO FIX THE DURATION OF
CONFINEMENT WITHIN THAT PERIOD AND TO FIX IT ANEW WITHIN THAT PERIOD
FOR INFRACTIONS OF THE RULES; EVEN IF PAROLED, THE PRISONER WOULD
REMAIN SUBJECT TO SURVEILLANCE AND UNTIL THE EXPIRATION OF THE 15 YEARS
HIS PAROLE WOULD BE SUBJECT TO REVOCATION AT THE DISCRETION OF THE
BOARD OR THE GOVERNOR. 

LINDSEY ET AL. V. WASHINGTON. 

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. 

CERTIORARI, 300 U.S. 652, TO REVIEW THE AFFIRMANCE OF A CONVICTION OF
GRAND LARCENY. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE CERTIORARI WAS GRANTED TO REVIEW A DECISION OF THE
SUPREME COURT OF WASHINGTON, 187 WASH. 346; 61 P.(2D) 293, THAT CHAPTER
114 OF THE LAWS OF WASHINGTON, 1935, UNDER WHICH PETITIONERS WERE
SENTENCED TO TERMS OF IMPRISONMENT, IS NOT AN EX POST FACTO LAW
PROHIBITED BY ARTICLE I, SEC. 10, OF THE FEDERAL CONSTITUTION. 

PETITIONERS WERE CONVICTED IN THE STATE COURT OF THE CRIME OF GRAND
LARCENY, MADE A FELONY BY STATE LAW, SEC. 2601(2), REMINGTON REV.
STAT., AND SENTENCED TO BE PUNISHED BY CONFINEMENT IN THE STATE
PENITENTIARY AND REFORMATORY RESPECTIVELY FOR TERMS OF NOT MORE THAN
FIFTEEN YEARS.  ON APRIL 15, 1935, THE DATE OF THE COMMISSION OF THE
OFFENSE, THE PRESCRIBED PENALTY FOR GRAND LARCENY WAS IMPRISONMENT "FOR
NOT MORE THAN FIFTEEN YEARS."  NO MINIMUM TERM WAS PRESCRIBED. 
REMINGTON REV. STAT., SEC. 2605.  ON THAT DATE, THE STATUTES ALSO
PROVIDED, REMINGTON REV. STAT., SEC. 2281, FOR INDETERMINATE SENTENCES
FOR ANY FELONY "FOR WHICH NO FIXED PERIOD OF CONFINEMENT IS IMPOSED BY
LAW."  ALL SUCH SENTENCES WERE REQUIRED TO BE "FOR A TERM NOT LESS THAN
THE MINIMUM NOR GREATER THAN THE MAXIMUM TERM OF IMPRISONMENT
PRESCRIBED BY LAW FOR THE OFFENSE  ...  AND WHERE NO MINIMUM TERM OF
IMPRISONMENT IS PRESCRIBED BY LAW, THE COURT SHALL FIX THE SAME IN HIS
DISCRETION AT NOT LESS THAN SIX MONTHS NOR MORE THAN FIVE YEARS;..." 
WHICH COULD "AT ANY TIME AFTER THE EXPIRATION OF THE MINIMUM TERM OF
IMPRISONMENT  ...  DIRECT THAT ANY PRISONER  ...  SHALL BE RELEASED ON
PAROLE...." 

THE ACT OF JUNE 12, 1935, ENACTED AFTER PETITIONERS' COMMISSION OF
THE OFFENSE AND BEFORE SENTENCE, MODIFIES THE SECTIONS RELATING TO
INDETERMINATE SENTENCES AND PAROLES AND PROVIDES, SO FAR AS NOW
RELEVANT, SEC. 2, PARAGRAPH 1, THAT UPON CONVICTION OF A FELONY "THE
COURT  ...  SHALL FIX THE MAXIMUM TERM OF SUCH PERSON'S SENTENCE ONLY. 
THE MAXIMUM TERM TO BE FIXED BY THE COURT SHALL BE THE MAXIMUM PROVIDED
BY LAW FOR THE CRIME OF WHICH SUCH PERSON WAS CONVICTED, IF THE LAW
PROVIDES FOR A MAXIMUM TERM."  IT ALSO PROVIDES, SEC. 2, PARAGRAPH 4,
THAT WITHIN SIX MONTHS AFTER THE ADMISSION OF A CONVICTED PERSON TO THE
PLACE OF CONFINEMENT, THE BOARD OF PRISON, TERMS AND PAROLES "...
SHALL FIX THE DURATION OF HIS OR HER CONFINEMENT.  THE TERM OF
IMPRISONMENT SO FIXED SHALL NOT EXCEED THE MAXIMUM PROVIDED BY LAW FOR
THE OFFENSE FOR WHICH HE OR SHE WAS CONVICTED OR THE MAXIMUM FIXED BY
THE COURT, WHERE THE LAW DOES NOT PROVIDE FOR A MAXIMUM TERM." 

BY SEC. 2, PARAGRAPH 6, IF THE PERSON UNDERGOING SENTENCE COMMITS ANY
INFRACTION OF THE RULES AND REGULATIONS OF THE PLACE OF CONFINEMENT,
THE BOARD  "...  MAY REVOKE ANY ORDER THERETOFORE MADE DETERMINING THE
LENGTH OF THE TIME SUCH CONVICTED PERSON SHALL BE IMPRISONED AND MAKE A
NEW ORDER DETERMINING THE LENGTH OF TIME HE OR SHE SHALL SERVE, NOT
EXCEEDING THE MAXIMUM PENALTY PROVIDED BY LAW FOR THE CRIME FOR WHICH
HE OR SHE WAS CONVICTED."  IT IS PROVIDED, SEC. 4, THAT A CONVICTED
PERSON MAY BE RELEASED ON PAROLE BY THE BOARD AFTER HE HAS SERVED THE
PERIOD OF CONFINEMENT FIXED BY THE BOARD, LESS TIME CREDITS FOR GOOD
BEHAVIOR AND DILIGENCE WHICH MAY NOT EXCEED "ONE-THIRD OF HIS SENTENCE
AS FIXED BY THE BOARD," AND THAT THE BOARD SHALL HAVE POWER "...  TO
RETURN SUCH PERSON TO THE CONFINES OF THE INSTITUTION FROM WHICH HE OR
SHE WAS PAROLED, AT ITS DISCRETION."  THE GOVERNOR IS AUTHORIZED TO
CANCEL AND REVOKE PAROLES GRANTED BY THE BOARD, AND THE PERIOD
FOLLOWING CANCELLATION OR REVOCATION OF PAROLE, AND PRIOR TO THE
CONVICTED PERSON'S RETURN TO CUSTODY, IS NOT A "PART OF HIS TERM." 

THE SENTENCES OF NOT MORE THAN FIFTEEN YEARS IMPOSED ON PETITIONERS
WERE THE MAXIMUM PROVIDED BY LAW, AND WERE MADE MANDATORY BY THE ACT OF
1935.  IN OBEDIENCE TO ITS COMMAND THE COURT FIXED NO MINIMUM.  IT DOES
NOT APPEAR FROM THE RECORD WHETHER THE BOARD OF PRISON, TERMS AND
PAROLES HAS FIXED THE "DURATION" OF PETITIONERS'"CONFINEMENT." 
NUMEROUS GROUNDS ARE URGED BY PETITIONERS IN SUPPORT OF THEIR
CONTENTION THAT THE SENTENCE AUTHORIZED BY THE LATER STATUTE IS EX POST
FACTO AS APPLIED TO THEIR OFFENSE, COMMITTED BEFORE ITS ENACTMENT.  WE
FIND IT NECESSARY TO CONSIDER ONLY ONE. 

IN SUSTAINING THE SENTENCE THE SUPREME COURT OF WASHINGTON, WITHOUT
ANALYSIS OR COMPARISON OF THE PRACTICAL OPERATION OF THE TWO STATUTES,
DECLARED "THE AMENDING ACT DOES NOT CHANGE OR INFLICT A GREATER
PUNISHMENT THAN THE LAW IN FORCE WHEN THE ALLEGED CRIME WAS COMMITTED
FOR THE COURT COULD UNDER THE LAW IN FORCE AT THAT TIME PRONOUNCE A
MAXIMUM SENTENCE OF NOT MORE THAN FIFTEEN YEARS.  THE MINIMUM AND
MAXIMUM PUNISHMENTS REMAIN THE SAME AS BEFORE THE ENACTMENT OF THE ACT
OF 1935."  THIS COURT, IN APPLYING THE EX POST FACTO PROHIBITION OF THE
FEDERAL CONSTITUTION TO STATE LAWS, ACCEPTS THE MEANING ASCRIBED TO
THEM BY THE HIGHEST COURT OF THE STATE.  BUT WHEN THEIR MEANING IS THUS
ESTABLISHED, WHETHER THE STANDARDS OF PUNISHMENT SET UP BEFORE AND
AFTER THE COMMISSION OF AN OFFENSE DIFFER, AND WHETHER THE LATER
STANDARD IS MORE ONEROUS THAN THE EARLIER WITHIN THE MEANING OF THE
CONSTITUTIONAL PROHIBITION, ARE FEDERAL QUESTIONS WHICH THIS COURT WILL
DETERMINE FOR ITSELF.  CUMMINGS V. MISSOURI, 4 WALL.  277, 320, REV'G,
STATE V. CUMMINGS, 36 MO. 263, 273; KRING V. MISSOURI, 107 U.S. 221,
223-224, 231-232.  TO ANSWER THEM WE COMPARE THE PRACTICAL OPERATION OF
THE TWO STATUTES AS APPLIED TO PETITIONERS' OFFENSE. 

UNDER THE EARLIER SEC. 2281, AS THE STATE CONCEDES, THE PRISONERS
COULD HAVE BEEN SENTENCED FOR A MAXIMUM TERM LESS THAN THE FIFTEEN YEAR
PENALTY AUTHORIZED BY THE STATUTE.  UNDER THE LATER STATUTE, THE
SENTENCE BY THE COURT, AS COMMANDED BY SEC. 2, WAS FOR FIFTEEN YEARS,
AND THE "DURATION OF CONFINEMENT" TO BE FIXED BY THE BOARD OF PRISON,
TERMS AND PAROLES MAY BE FOR ANY NUMBER OF YEARS NOT EXCEEDING
FIFTEEN. 

THE EFFECT OF THE NEW STATUTE IS TO MAKE MANDATORY WHAT WAS BEFORE
ONLY THE MAXIMUM SENTENCE.  UNDER IT THE PRISONERS MAY BE HELD TO
CONFINEMENT DURING THE ENTIRE FIFTEEN YEAR PERIOD.  EVEN IF THEY ARE
ADMITTED TO PAROLE, TO WHICH THEY BECOME ELIGIBLE AFTER THE EXPIRATION
OF THE TERMS FIXED BY THE BOARD, THEY REMAIN SUBJECT TO ITS
SURVEILLANCE AND THE PAROLE MAY, UNTIL THE EXPIRATION OF THE FIFTEEN
YEARS, BE REVOKED AT THE DISCRETION OF THE BOARD OR CANCELLED AT THE
WILL OF THE GOVERNOR.  IT IS TRUE THAT PETITIONERS MIGHT HAVE BEEN
SENTENCED TO FIFTEEN YEARS UNDER THE OLD STATUTE.  BUT THE EX POST
FACTO CLAUSE LOOKS TO THE STANDARD OF PUNISHMENT PRESCRIBED BY A
STATUTE, RATHER THAN TO THE SENTENCE ACTUALLY IMPOSED.  THE
CONSTITUTION FORBIDS THE APPLICATION OF ANY NEW PUNITIVE MEASURE TO A
CRIME ALREADY CONSUMMATED, TO THE DETRIMENT OR MATERIAL DISADVANTAGE OF
THE WRONGDOER.  KRING V. MISSOURI, SUPRA, 228-229; IN RE MEDLEY, 134
U.S. 160, 171; THOMPSON V. UTAH, 170 U.S. 343, 351.  IT IS FOR THIS
REASON THAT AN INCREASE IN THE POSSIBLE PENALTY IS EX POST FACTO,
CALDER V. BULL, 3 DALL.  386, 390; CUMMINGS V. MISSOURI, SUPRA, 326;
MALLOY V. SOUTH CAROLINA, 237 U.S. 180, 184, REGARDLESS OF THE LENGTH
OF THE SENTENCE ACTUALLY IMPOSED, SINCE THE MEASURE OF PUNISHMENT
PRESCRIBED BY THE LATER STATUTE IS MORE SEVERE THAN THAT OF THE
EARLIER, STATE V. CALLAHAN, 109 LA. 946; 33 SO. 931; STATE V. SMITH, 56
ORE.  21; 107 PAC. 980. 

REMOVAL OF THE POSSIBILITY OF A SENTENCE OF LESS THAN FIFTEEN YEARS,
AT THE END OF WHICH PETITIONERS WOULD BE FREED FROM FURTHER CONFINEMENT
AND THE TUTELAGE OF A PAROLE REVOCABLE AT WILL, OPERATES TO THEIR
DETRIMENT IN THE SENSE THAT THE STANDARD OF PUNISHMENT ADOPTED BY THE
NEW STATUTE IS MORE ONEROUS THAN THAT OF THE OLD.  IT COULD HARDLY BE
THOUGHT THAT, IF A PUNISHMENT FOR MURDER OF LIFE IMPRISONMENT OR DEATH
WERE CHANGED TO DEATH ALONE, THE LATTER PENALTY COULD BE APPLIED TO
HOMICIDE COMMITTED BEFORE THE CHANGE.  MARION V. STATE, 16 NEB. 349; 20
N.W. 289.  YET THIS IS ONLY A MORE STRIKING INSTANCE OF THE DETRIMENT
WHICH ENSUES FROM THE REVISION OF A STATUTE PROVIDING FOR A MAXIMUM AND
MINIMUM PUNISHMENT BY MAKING THE MAXIMUM COMPULSORY.  WE NEED NOT
INQUIRE WHETHER THIS IS TECHNICALLY AN INCREASE IN THE PUNISHMENT
ANNEXED TO THE CRIME, SEE CALDER V. BULL, SUPRA, 390.  IT IS PLAINLY TO
THE SUBSTANTIAL DISADVANTAGE OF PETITIONERS TO BE DEPRIVED OF ALL
OPPORTUNITY TO RECEIVE A SENTENCE WHICH WOULD GIVE THEM FREEDOM FROM
CUSTODY AND CONTROL PRIOR TO THE EXPIRATION OF THE 15-YEAR TERM. 

PETITIONERS WERE WRONGLY SENTENCED UNDER THE ACT OF 1935.  WHETHER,
IN CONSEQUENCE OF THE INVALIDITY OF THE LATER ACT, AS APPLIED TO
PETITIONERS, THEY MAY BE SENTENCED UNDER THE EARLIER, IS A QUESTION FOR
THE STATE COURT. 

THE CAUSE WILL BE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS, NOT
INCONSISTENT WITH THIS OPINION.  REVERSED. 
..END :












U.S. V. AM. TIN PLATE CO., 301 U.S. 402 


NO. 734.  ARGUED APRIL 9, 12, 1937.  - DECIDED MAY 17, 1937.  - 15
F.SUPP.  711, REVERSED. 


1.  ORDERS OF THE INTERSTATE COMMERCE COMMISSION REQUIRING CARRIERS TO
DESIST FROM SPOTTING CARS ON INDUSTRIAL PLANT TRACKS AS PART OF THE
SERVICE RENDERED UNDER INTERSTATE LINE-HAUL RATES AND FROM GRANTING
ALLOWANCES OUT OF THE LINE-HAUL RATES TO INDUSTRIES DOING SUCH
SPOTTING, HELD ADEQUATELY SUPPORTED BY THE COMMISSION'S FINDINGS IN
EACH CASE THAT THE INTERCHANGE TRACKS OF THE RESPECTIVE INDUSTRIES ARE
REASONABLY CONVENIENT POINTS FOR THE RECEIPT AND DELIVERY OF INTERSTATE
SHIPMENTS AND THAT THE INDUSTRY PERFORMS NO SERVICE BEYOND THOSE POINTS
OF INTERCHANGE FOR WHICH THE CARRIER IS COMPENSATED UNDER ITS
INTERSTATE LINE-HAUL RATES.  P. 406. 

THESE FINDINGS ARE AN ADJUDICATION BY THE COMMISSION THAT THE
SPOTTING SERVICE WITHIN THE PLANTS IS NOT TRANSPORTATION SERVICE WHICH
THE CARRIERS ARE BOUND TO RENDER IN RESPECT OF RECEIPT AND DELIVERY OF
FREIGHT. 

2.  THE COMMISSION IS NOT FORECLOSED BY ITS EARLIER DECISIONS FROM
INVESTIGATING THE VARIED PRACTICE OF MAKING ALLOWANCES FOR PLANT
SWITCHING AND FROM MAKING PROPER ORDERS TO REGULATE THE PRACTICE AND
PREVENT PERFORMANCE OF A SERVICE NOT WITHIN THE CARRIERS'
TRANSPORTATION OBLIGATION.  P. 407. 

3.  UPON FINDING THAT THE CARRIERS' SERVICE OF TRANSPORTATION IS
COMPLETE UPON DELIVERY TO THE INDUSTRIES' INTERCHANGE TRACKS, AND THAT
SPOTTING WITHIN THE PLANTS IS NOT INCLUDED IN THE SERVICE FOR WHICH THE
LINE-HAUL RATES WERE FIXED, THERE IS POWER IN THE COMMISSION TO ENJOIN
THE PERFORMANCE OF THAT ADDITIONAL SERVICE OR THE MAKING AN ALLOWANCE
TO THE INDUSTRY WHICH PERFORMS IT.  P. 408. 

4. THE COMMISSION'S FINDINGS ARE SUSTAINED BY THE EVIDENCE.  P. 409. 

UNITED STATES ET AL. V. AMERICAN SHEET & TIN PLATE CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF PENNSYLVANIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES, SETTING
ASIDE ORDERS OF THE INTERSTATE COMMERCE COMMISSION CONCERNING THE
SPOTTING OF CARS.  THE CASE WAS A CONSOLIDATION OF SEVERAL CASES, EACH
BROUGHT BY A DIFFERENT INDUSTRIAL CORPORATION, WHICH WERE TRIED
TOGETHER AND DISPOSED OF BY ONE DECREE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM DECREES OF A SPECIALLY CONSTITUTED DISTRICT
COURT  FN1  OF THREE JUDGES ENJOINING AND SETTING ASIDE ORDERS OF THE
INTERSTATE COMMERCE COMMISSION WHICH REQUIRED CERTAIN CARRIERS TO CEASE
AND DESIST FROM SPOTTING CARS ON INDUSTRIAL PLANT TRACKS AS PART OF THE
SERVICE RENDERED UNDER INTERSTATE LINE-HAUL RATES AND FROM GRANTING
ALLOWANCES OUT OF THE LINE-HAUL RATES TO INDUSTRIES DOING SUCH
SPOTTING.  THE APPELLEES ARE FIVE INDUSTRIAL CONCERNS AFFECTED BY THE
ORDERS.  THEY CONTEND THAT THE SPOTTING SERVICE IN QUESTION IS
TRANSPORTATION WITHIN THE MEANING OF THE INTERSTATE COMMERCE ACT; THAT
THE PERFORMANCE OF THE SERVICE, OR THE PAYMENT OF AN ALLOWANCE TO AN
INDUSTRY WHICH ITSELF PERFORMS IT, IS SANCTIONED BY CUSTOM AND PRACTICE
AND BY PREVIOUS ADJUDICATIONS OF THE COMMISSION; AND THAT LINE-HAUL
RATES WERE FIXED IN CONTEMPLATION OF THE RENDITION OF SUCH SERVICE. 
THEY FURTHER CHARGE THE ORDERS ARE VOID BECAUSE NOT SUPPORTED BY THE
COMMISSION'S FINDINGS OR THE EVIDENCE. 

UPON ITS OWN MOTION THE COMMISSION INSTITUTED AN INVESTIGATION KNOWN
AS "EX PARTE NO. 104, PRACTICES OF CARRIERS AFFECTING OPERATING
REVENUES OR EXPENSES."  PART II OF THAT PROCEEDING HAD TO DO WITH
TERMINAL SERVICES.  FN2  VOLUMINOUS EVIDENCE WAS ADDUCED LARGELY
CONSISTING OF TESTIMONY BY OPERATING OFFICIALS OF CARRIERS AND TRAFFIC
REPRESENTATIVES OF SHIPPERS TOUCHING THE SERVICE OF SPOTTING CARS AT
POINTS UPON THE SYSTEMS OF PLANT TRACKAGE MAINTAINED BY LARGE
INDUSTRIES.  THE COMMISSION'S REPORT SUMMARIZED ITS CONCLUSIONS BASED
ON THE EVIDENCE AS TO CONDITIONS AT APPROXIMATELY TWO HUNDRED
INDUSTRIAL PLANTS WHERE SPOTTING ALLOWANCES WERE PAID BY THE CARRIERS
AND NUMEROUS PLANTS WHERE SUCH SERVICES WERE PERFORMED BY THE CARRIER. 
THE COMMISSION FOUND THAT LINE-HAUL RATES HAD NOT BEEN FIXED TO
COMPENSATE THE CARRIERS FOR THE PERFORMANCE OF THE SERVICE IN QUESTION
AND THAT THE RAILROADS, AFTER FIXING THEIR RATES, HAD ASSUMED A BURDEN
NOT PREVIOUSLY BORNE BY THEM.  IT FOUND THAT SEC. 15(13) OF THE ACT
PERMITTING ALLOWANCES BY CARRIERS TO THOSE PERFORMING A PORTION OF THE
SERVICE OF TRANSPORTATION HAD BEEN MADE THE INSTRUMENT OF ABUSE BY THE
PAYMENT OF UNWARRANTED ALLOWANCES AND ADDED:  "WHEN A CARRIER IS
PREVENTED AT ITS ORDINARY OPERATING CONVENIENCE FROM REACHING POINTS OF
LOADING OR UNLOADING WITHIN A PLANT, WITHOUT INTERRUPTION OR
INTERFERENCE BY THE DESIRES OF AN INDUSTRY OR THE DISABILITIES OF ITS
PLANT, SUCH AS THE MANNER IN WHICH THE INDUSTRIAL OPERATIONS ARE
CONDUCTED, THE ARRANGEMENT OR CONDITION OF ITS TRACKS, WEIGHING
SERVICE, OR SIMILAR CIRCUMSTANCES,  ...  THE SERVICE BEYOND THE POINT
OF INTERRUPTION OR INTERFERENCE IS IN EXCESS OF THAT PERFORMED IN
SIMPLE SWITCHING OR TEAM-TRACK DELIVERY."  IN CONCLUSION, THE REPORT
STATES THAT PAYMENT FOR OR EXEMPTION OF THE COST OF SERVICE PERFORMED
BEYOND SUCH POINTS OF INTERRUPTION OR INTERFERENCE IS IN VIOLATION OF
SEC. 6, PROVIDES THE MEANS BY WHICH THE INDUSTRY ENJOYS A PREFERENTIAL
SERVICE NOT ACCORDED TO SHIPPERS GENERALLY, DISSIPATES THE CARRIER'S
FUNDS AND REVENUES, IS NOT IN CONFORMITY WITH THE EFFICIENT OR
ECONOMICAL MANAGEMENT CONTEMPLATED BY THE INTERSTATE COMMERCE ACT AND
IS NOT IN THE PUBLIC INTEREST.  NO ORDERS WERE MADE UPON THE FOOTING OF
THE MAIN REPORT, BUT THEREAFTER, DIVISION 6 PROMULGATED SUPPLEMENTAL
REPORTS RECAPITULATING THE TESTIMONY TOUCHING PARTICULAR PLANTS AND
MAKING FINDINGS WITH RESPECT TO EACH AND THE SERVICE RENDERED THEREAT. 
UPON THE BASIS OF THESE SUPPLEMENTARY PROCEEDINGS ORDERS TO CEASE AND
DESIST WERE ENTERED.  FN3 THE CARRIERS THEREUPON GAVE NOTICE OF A
REVISION OF THE APPLICABLE TARIFFS, CANCELLING ALLOWANCES OR
WITHDRAWING THE SPOTTING SERVICE.  EACH APPELLEE FILED A BILL PRAYING
THAT THE ORDER AFFECTING IT BE SET ASIDE AND ENFORCEMENT BE
RESTRAINED.  THE CAUSES WERE CONSOLIDATED FOR HEARING AND WERE DISPOSED
OF UPON A SINGLE RECORD IN ONE OPINION.  SEPARATE DECREES WERE ENTERED
IN THE RESPECTIVE CAUSES GRANTING THE REQUESTED RELIEF.  THE APPELLANTS
TOOK A SINGLE APPEAL FROM ALL THE DECREES.  WE HOLD THE COMMISSION'S
ORDERS WERE LAWFUL AND SHOULD NOT HAVE BEEN SET ASIDE. 

FIRST.  THE APPELLEES URGE THAT THE ORDERS ARE FATALLY DEFECTIVE
BECAUSE THE COMMISSION FAILED TO MAKE THE NECESSARY QUASI-JUDICIAL
FINDINGS.  THEY POINT OUT THAT THE COMMISSION HELD THAT AN ALLOWANCE
FURNISHED A MEANS WHEREBY AN INDUSTRY ENJOYED A PREFERENTIAL SERVICE
NOT ACCORDED TO SHIPPERS GENERALLY, AND CONSTITUTED A REFUND OR
REMISSION OF A PORTION OF THE RATE FOR TRANSPORTATION IN VIOLATION OF
SEC. 6(7) OF THE INTERSTATE COMMERCE ACT.  THEY ASSERT THESE
CONCLUSIONS ARE INSUFFICIENT TO SUPPORT A CEASE AND DESIST ORDER
BECAUSE THE COMMISSION HAS NOT FOUND, AS IT MUST TO BOTTOM AN ORDER ON
SECS. 2, 3 AND 15(1) OF THE ACT,  FN4  THAT THE PRACTICE WAS
UNREASONABLE, UNJUSTLY PREFERENTIAL, UNDULY DISCRIMINATORY, OR
OTHERWISE UNLAWFUL.  RESPECTING SEC. 6(7)  FN5  THEY SAY THAT AS, BY
THAT SECTION AND SEC. 15(13),  FN6  ALLOWANCES TO SHIPPERS WHO PERFORM
A PART OF THE SERVICE OF TRANSPORTATION ARE PERMISSIBLE IF TARIFFS
SETTING FORTH THE NATURE AND AMOUNT OF THE ALLOWANCE ARE DULY FILED, AS
THEY WERE IN THE PRESENT INSTANCE, IT CANNOT BE AN UNLAWFUL REFUND OR
REBATE FOR THE CARRIERS TO MAKE THE ALLOWANCES WHICH THE TARIFFS
SPECIFY.  IF THE FINDINGS WERE LIMITED TO THE PRACTICES SPECIFIED IN
THE SECTIONS MENTIONED THE POSITION OF THE APPELLEES WOULD NO DOUBT BE
SOUND, BUT THE COMMISSION HAS, IN EACH CASE, FOUND THAT THE INTERCHANGE
TRACKS OF THE RESPECTIVE INDUSTRIES ARE REASONABLY CONVENIENT POINTS
FOR THE RECEIPT AND DELIVERY OF INTERSTATE SHIPMENTS AND THAT THE
INDUSTRY PERFORMS NO SERVICE BEYOND THOSE POINTS OF INTERCHANGE FOR
WHICH THE CARRIER IS COMPENSATED UNDER ITS INTERSTATE LINE-HAUL RATES. 
THESE FINDINGS ARE AN ADJUDICATION BY THE COMMISSION THAT THE SPOTTING
SERVICE WITHIN THE APPELLEES' PLANTS IS NOT TRANSPORTATION SERVICE
WHICH THE CARRIERS ARE BOUND TO RENDER IN RESPECT OF RECEIPT AND
DELIVERY OF FREIGHT.  THE STATUTE CONTAINS THIS DEFINITION:  "THE TERM
'TRANSPORTATION' SHALL INCLUDE  ...  ALL SERVICES IN CONNECTION WITH
THE RECEIPT, DELIVERY, ELEVATION, AND TRANSFER IN TRANSIT  ...  OF
PROPERTY TRANSPORTED."  FN7  THE INTERSTATE COMMERCE COMMISSION IS
AUTHORIZED AND REQUIRED TO ENFORCE THE PROVISIONS OF THE ACT  FN8  AND,
AFTER HEARING, IF IT BE OF OPINION THAT ANY REGULATION OR PRACTICE OF A
CARRIER BE UNJUST OR UNREASONABLE, OR UNJUSTLY DISCRIMINATORY, "OR
OTHERWISE IN VIOLATION OF THE PROVISIONS OF THIS ACT," TO DETERMINE
WHAT PRACTICE IS OR WILL BE JUST, FAIR AND REASONABLE TO BE THEREAFTER
FOLLOWED AND TO MAKE AN ORDER THAT THE CARRIER CEASE AND DESIST FROM
VIOLATION TO THE EXTENT THAT THE COMMISSION FINDS VIOLATION DOES OR
WILL EXIST.  FN9 

SECOND.  THE COMMISSION, SO IT IS SAID, HAS APPROVED ALLOWANCES IN
INSTANCES SUCH AS THOSE UNDER REVIEW AND BY A LONG COURSE OF DECISION
HAS SANCTIONED THE PRACTICE; AND THE CLAIM IS THAT THE CARRIERS HAVE
RELIED UPON THE COMMISSION'S ACTION IN DOING PLANT SPOTTING OR MAKING
ALLOWANCE FOR THE PERFORMANCE OF THAT SERVICE BY INDUSTRIES.  WE CANNOT
AGREE EITHER THAT THE COMMISSION HAS SO DECIDED OR THAT IF IT HAD IT
WOULD BE CONCLUDED FROM RE-EXAMINING THE QUESTION IN THE LIGHT OF
EXISTING CONDITIONS.  THE COMMISSION HAS REPEATEDLY DEALT WITH THE
MATTER.  FN10  IN NUMEROUS INSTANCES, UPON APPLICATION OF AN INDUSTRY
FOR THE PERFORMANCE OF SPOTTING SERVICE ON ITS PLANT TRACK SYSTEM, OR
FOR AN ALLOWANCE FROM THE CARRIER FOR ITSELF PERFORMING THE SERVICE,
THE COMMISSION, IN THE VIEW THAT LIKE SERVICE WAS PERFORMED OR AN
ALLOWANCE PAID FOR IT AT OTHER SIMILAR PLANTS, HAS ORDERED THE REMOVAL
OF DISCRIMINATION AS BETWEEN SHIPPERS.  ON THE OTHER HAND, IN SOME
CASES THE COMMISSION HAS HELD THAT THE SERVICE DEMANDED WAS NOT A
SERVICE OF TRANSPORTATION AND HAS REFUSED TO ORDER THE CARRIER TO
PERFORM IT.  FN11  BUT WHATEVER MAY HAVE BEEN DECIDED IN THE PAST, IT
IS EVIDENT THAT THE GROWTH OF THE PRACTICE OF MAKING ALLOWANCES FOR
PLANT SWITCHING AND THE LACK OF UNIFORMITY IN THE PRACTICE OF THE
CARRIERS WITH RESPECT TO THIS SERVICE PROPERLY CALLED FOR AN
INVESTIGATION OF THE ENTIRE SITUATION AND THE PROMULGATION OF
APPROPRIATE ORDERS TO REGULATE THE PRACTICE AND PREVENT PERFORMANCE OF
A SERVICE NOT WITHIN THE CARRIER'S TRANSPORTATION OBLIGATION.  THE
INVESTIGATION AND THE CONSEQUENT ORDERS OF THE COMMISSION WERE NOT
FORECLOSED BY ITS EARLIER DECISIONS.  THE COMMISSION IS CLEARLY
EMPOWERED TO DETERMINE WHAT IS EMBRACED WITHIN THE SERVICE OF
TRANSPORTATION AND WHAT LIES OUTSIDE THAT SERVICE.  FN12  SINCE THE
COMMISSION FINDS THAT THE CARRIERS' SERVICE OF TRANSPORTATION IS
COMPLETE UPON DELIVERY TO THE INDUSTRIES' INTERCHANGE TRACKS, AND THAT
SPOTTING WITHIN THE PLANTS IS NOT INCLUDED IN THE SERVICE FOR WHICH THE
LINEHAUL RATES WERE FIXED, THERE IS POWER TO ENJOIN THE PERFORMANCE OF
THAT ADDITIONAL SERVICE OR THE MAKING OF AN ALLOWANCE TO THE INDUSTRY
WHICH PERFORMS IT. 

THIRD.  WHAT HAS BEEN SAID MAKES IT UNNECESSARY FURTHER TO DISCUSS
THE QUESTION OF THE ADEQUACY OF THE COMMISSION'S FINDINGS.  IF
SUPPORTED, THEY ARE SUFFICIENT TO SUSTAIN THE ORDERS MADE. 

FOURTH.  THE CASES WERE HEARD BY THE DISTRICT COURT ON THE RECORD
MADE BEFORE THE COMMISSION.  THE APPELLEES CHALLENGE THE ORDERS AS
WITHOUT SUPPORT IN THE EVIDENCE.  EXAMINATION OF THE RECORD DISCLOSES
THAT THERE IS SUBSTANTIAL EVIDENCE TO SUSTAIN THE COMMISSION'S
FINDINGS. 

IT IS CONCEDED THAT THE LINE-HAUL RATE COVERS DELIVERY.  SUCH RATES
ARE USUALLY MADE TO OR FROM AN AREA, SOMETIMES DESIGNATED A "SWITCHING
DISTRICT" OR "SWITCHING LIMITS."  WITHIN THAT AREA THE CARRIER HOLDS
ITSELF OUT AS AGREEING TO DELIVER FREIGHT IN ITS FREIGHT DEPOT OR AT
TEAM TRACKS OR ON SIDINGS OR SPUR-TRACKS OWNED BY AN INDUSTRY.  THE
PRACTICE HAS COME TO BE UNIFORM THAT IN DELIVERING A CAR ON A TEAM
TRACK THE CARRIER WILL SPOT THE CAR AT A POINT WHERE MERCHANDISE OF THE
CLASS CONTAINED IN THE CAR IS USUALLY AND MOST CONVENIENTLY UNLOADED;
THUS THERE ARE PARTICULAR TEAM TRACKS OR POINTS WHERE FRUIT AND
VEGETABLES, FURNITURE, ETC., ETC., ARE CONSTANTLY LOADED AND UNLOADED
AND CARS ARE SPOTTED ACCORDINGLY.  IN THE ANALOGOUS SITUATION WHERE AN
INDUSTRY'S WAREHOUSES OR OTHER FACILITIES ARE LOCATED AT GIVEN POINTS
ON A SPUR OR SIDE-TRACK, THE CARRIER HOLDS ITSELF OUT TO SPOT THE CAR
AT THE POINT WHERE IT IS NEEDED FOR LOADING OR UNLOADING, AS A
WAREHOUSE DOOR, A SCRAP PILE, ETC., ETC. 

IN THE CASE OF A LARGE INDUSTRY HAVING MANY POINTS OF LOADING AND
UNLOADING THROUGHOUT ITS PLANT, THE USUAL ARRANGEMENT IS TO HAVE LEAD
TRACKS OR INTERCHANGE TRACKS ON WHICH THE CARS ARE, IN THE FIRST
INSTANCE, SHIFTED; THENCE THEY ARE TAKEN OVER PLANT TRACKS TO VARIOUS
BUILDINGS AND POINTS AND ARE SPOTTED IN ACCORDANCE WITH THE NEEDS AND
CONVENIENCE OF THE INDUSTRY.  IT IS ASSERTED BY THE APPELLEES THAT IT
HAS BECOME CUSTOMARY TO DO THIS SPOTTING ON PLANT TRACKS AS PART OF THE
DELIVERY SERVICE WHICH THE CARRIER HOLDS ITSELF OUT AS AGREEING TO
PERFORM WITHOUT A CHARGE ADDITIONAL TO THE LINE-HAUL RATE.  THE RECORD
FAILS TO ESTABLISH ANY SUCH CUSTOM.  CARRIERS IN OFFICIAL TERRITORY
HAVE, FOR PERHAPS THIRTY YEARS, MADE ALLOWANCES TO CERTAIN INDUSTRIES
FOR DOING SPOTTING WITHIN THEIR PLANTS.  NO UNIFORM RULE AS TO WHEN
SUCH AN ALLOWANCE WOULD BE MADE HAS BEEN ADOPTED ALTHOUGH THERE HAVE
BEEN EFFORTS TO AGREE UPON A RULE.  APPARENTLY THE PLANTS MOST FAVORED
HAVE BEEN STEEL PLANTS AND SOME CARRIERS HAVE REFUSED TO EXTEND THE
SYSTEM OF ALLOWANCES TO OTHER THAN STEEL PLANTS.  IT APPEARS FROM THE
RECORD THAT THE MAKING OF ALLOWANCES HAS NOT BEEN GOVERNED BY ANY
PRINCIPLE AND THE CASES FALL INTO THREE GENERAL CLASSES:  (1) WHERE THE
PLANT DOES ITS OWN SPOTTING AND RECEIVES AN ALLOWANCE; (2) WHERE THE
RAILROAD DOES PLANT SPOTTING; (3) WHERE THE INDUSTRY DOES ITS OWN
SPOTTING AND RECEIVES NO ALLOWANCE. 

NO ALLOWANCES HAVE BEEN GRANTED IN NEW ENGLAND TERRITORY, IN THE
SOUTHEAST, OR IN THE EXTREME SOUTHWEST.  THE PRACTICE OF GRANTING
ALLOWANCES HAS SPREAD, TO SOME EXTENT, FROM OFFICIAL TERRITORY ACROSS
THE MISSISSIPPI AND TO THE NORTHWEST BUT HERE AGAIN THERE IS NO UNIFORM
RULE ABOUT THE MATTER.  THERE IS NO CUSTOM OR PRACTICE WHICH HAS THE
FORCE OF A RULE OF LAW THAT THE LINE-HAUL RATE INCLUDES PLANT SPOTTING
SERVICE. 

THE TESTIMONY OF OPERATING OFFICIALS OF THE CARRIERS AND
TRANSPORTATION OFFICERS OF INDUSTRIES WAS NOT ENTIRELY CONSISTENT. 
SOME TOOK THE POSITION THAT IT IS THE OBLIGATION OF A CARRIER TO SPOT A
CAR ON PLANT TRACKS IF THE SPOTTING INVOLVES BUT A SINGLE UNINTERRUPTED
MOVEMENT WHICH CAN BE MADE AT THE CARRIER'S CONVENIENCE.  MANY TOOK A
BROADER VIEW AND INDICATED THAT IN CONSIDERATION OF THE LARGE AMOUNT OF
TRAFFIC EMANATING FROM AND TERMINATING AT A GIVEN PLANT THE SPOTTING OF
CARS, IN COOPERATION WITH THE NEEDS OF THE PLANT, WOULD NOT INVOLVE A
BURDEN GREATER THAN THE DELIVERY OF SIMILAR CARS ON TEAM TRACKS.  THERE
WAS MUCH OPINION EVIDENCE TO THE EFFECT THAT THE COST OF SPOTTING A CAR
ON PLANT TRACKS IS NO GREATER THAN THAT OF PLACING A CAR ON TEAM
TRACKS.  THERE WAS, HOWEVER, OPINION EVIDENCE TO THE CONTRARY, AND
FACTS WERE DEVELOPED WITH RESPECT TO THE AMOUNT OF ENGINE TIME INVOLVED
IN SOME OF THE OPERATIONS UNDER EXAMINATION FROM WHICH IT MAY FAIRLY BE
DEDUCED THAT THE INDUSTRY SWITCHING INVOLVED GREATER EXPENSE THAN TEAM
TRACK SWITCHING.    THE COMMISSION PROPERLY HELD THAT EACH CASE MUST BE
DECIDED UPON THE CIRCUMSTANCES DISCLOSED.  IT ACCORDINGLY EXAMINED THE
EVIDENCE RESPECTING THE OPERATIONS AT THE PLANT OF EACH OF THE
APPELLEES AND MADE ITS FINDINGS WITH RESPECT TO EACH UPON THE EVIDENCE
IN THE RECORD.  WE FIND IT UNNECESSARY TO DETAIL THAT EVIDENCE SINCE IT
IS SUMMARIZED IN THE COMMISSION'S REPORTS.  IT IS SUFFICIENT NOW TO SAY
THAT IN EVERY CASE THE COMMISSION FOUND, UPON SUFFICIENT EVIDENCE, THAT
THE CARS WERE, IN THE FIRST INSTANCE, PLACED UPON LEAD TRACKS,
INTERCHANGE TRACKS OR SIDINGS AND SUBSEQUENTLY SPOTTED FROM THESE
TRACKS; IN EACH INSTANCE THE SPOTTING SERVICE INVOLVED ONE OR MORE
OPERATIONS IN ADDITION TO THE PLACING OF THE CAR ON INTERCHANGE TRACKS,
SUCH AS MOVING IT TO PLANT SCALES FOR WEIGHING, OR SOME ADDITIONAL
BURDEN, SUCH AS CONFORMANCE TO THE CONVENIENCE OF THE PLANT, SUPPLY OF
SPECIAL MOTIVE POWER REQUIRED BY THE PLANT'S LAYOUT OR TRACKAGE OR SOME
OTHER ELEMENT WHICH CALLED FOR EXCESSIVE SERVICE GREATER THAN THAT
INVOLVED IN TEAM TRACK SPOTTING OR SPOTTING ON AN ORDINARY INDUSTRIAL
SIDING OR SPUR.  WE ARE UNABLE TO SAY THAT THE FINDINGS IN RESPECT OF
THE INDIVIDUAL PLANTS LACKED SUPPORT IN THE EVIDENCE.  WE ARE,
THEREFORE, BOUND TO ACCEPT THEM AND TO HOLD THE ORDERS LAWFUL. 

THE DECREES WILL BE REVERSED AND THE CAUSES REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

MR. JUSTICE BUTLER IS OF OPINION THAT THE COMMISSION'S RULING THAT
THE CARRIERS' SERVICE OF TRANSPORTATION IS COMPLETE UPON DELIVERY TO
THE INDUSTRIES' INTERCHANGE TRACKS IS NOT SUPPORTED BY THE
CIRCUMSTANTIAL FACTS FOUND OR BY THE EVIDENCE; THAT THE ORDERS HERE
INVOLVED ARE BASED UPON A MISCONSTRUCTION OF THE ACT, AND THAT THE
DECREES OF THE DISTRICT COURT SHOULD BE AFFIRMED. 

FN1  15 F.SUPP.  711. 

FN2  209 I.C.C. 11. 

FN3  THE REPORTS AND ORDERS AFFECTING THE APPELLEES ARE THE
FOLLOWING:  AMERICAN SHEET & TIN PLATE COMPANY TERMINAL ALLOWANCE, 209
I.C.C. 719; ALLEGHENY STEEL COMPANY TERMINAL ALLOWANCE, 209 I.C.C. 273;
PITTSBURGH PLATE GLASS COMPANY TERMINAL ALLOWANCE, 209 I.C.C. 467;
WEIRTON STEEL COMPANY TERMINAL ALLOWANCE, 209 I.C.C. 445; WEST
LEECHBURG STEEL COMPANY TERMINAL ALLOWANCE, 210 I.C.C. 213; PITTSBURGH
PLATE GLASS COMPANY TERMINAL ALLOWANCE, 210 I.C.C. 527. 

FN4  49 U.S.C. SECS. 2, 3(1), 15(1). 

FN5  49 U.S.C. SEC. 6(7). 

FN6  49 U.S.C. SEC. 15(13). 

FN7  ACT OF JUNE 29, 1906, C. 3591, SEC. 1, 34 STAT. 584; 49 U.S.C.
SEC. 1(3). 

FN8  49 U.S.C., SEC. 12(1). 

FN9  49 U.S.C., SEC. 15(1). 

FN10  ASSOCIATED JOBBERS OF LOS ANGELES V. A.T. & S.F. RY. CO., 18
I.C.C. 310; CAR SPOTTING CHARGES, 34 I.C.C. 609; NATIONAL MALLEABLE
CASTINGS CO. V. PITTSBURGH & L.E.R. CO., 51 I.C.C. 537, AND MANY
OTHERS. 

FN11  GENERAL ELECTRIC CASE, 14 I.C.C. 237; CRANE IRON WORKS CASE, 17
I.C.C. 514, 209 FED. 238.  COMPARE N.Y.C. & H.R.R. CO. V. GENERAL
ELECTRIC CO., 219 N.Y. 227, 114 N.E. 115. 

FN12  LOS ANGELES SWITCHING CASE, 234 U.S. 294, 311; MERCHANTS
WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501, 508. 
..END :














ATL. & PAC. TEA CO. V. GROSJEAN, 301 U.S. 412 


NO. 652.  ARGUED MARCH 30, 31, 1937.  - DECIDED MAY 17, 1937.  - 16
F.SUPP.  499, AFFIRMED. 


1.  WITHOUT CONTRAVENING THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT, A STATE MAY SEPARATELY CLASSIFY FOR TAXATION THE CONDUCT OF
A CHAIN STORE, AND MAY INCREASE THE RATE IN PROPORTION TO THE INCREASE
IN THE NUMBER OF STORES WITHIN THE STATE, SINCE THE OPPORTUNITIES AND
POWERS OF A CHAIN STORE OPERATOR BECOME GREATER WITH THE GROWTH OF THE
NUMBER OF UNITS MAINTAINED.  FOX V. STANDARD OIL CO., 294 U.S. 87,
100.  P. 419. 

2.  IN ADJUSTING THE RATE FOR A CHAIN STORE WITHIN THE STATE, THE
LEGISLATURE MAY TAKE INTO ACCOUNT THE SIZE OF THE CHAIN TO WHICH THE
STORE BELONGS, BY COUNTING THE TOTAL NUMBER OF ITS UNITS WHEREVER
LOCATED.  P. 419. 

3.  ACT NO. 51, OF LOUISIANA, 1934, WHICH LAYS A PROGRESSIVELY
INCREASING RATE OF TAXATION ON THE OPERATION OF CHAIN STORES WITHIN THE
STATE, TAKING INTO ACCOUNT ALL THE STORES IN THE CHAIN, WHETHER WITHIN
THE STATE OR OUTSIDE, DOES NOT ARBITRARILY DISCRIMINATE AGAINST

THE FINDINGS ON EVIDENCE SHOWED THAT THE COMPETITIVE ADVANTAGE OF
CHAINS INCREASED WITH THE NUMBER OF COMPONENT LINKS, AND THAT THE
ADDITION OF UNITS TO A CHAIN INCREASED THE COMPETITIVE ADVANTAGE OF
EACH STORE IN THE CHAIN. 

4.  THAT THE STATUTE, BY TAKING INTO ACCOUNT ALL UNITS
INDISCRIMINATELY IN FIXING THE RATE, MAY FAIL ACCURATELY TO ADJUST THE
FEE CHARGED TO THE VALUE OF THE LOCAL PRIVILEGE TAXED, IS NOT A GOOD
REASON FOR ADJUDGING IT ARBITRARY.  P. 423. 

5.  THE SUBJECT OF THE LOUISIANA TAX IS THE PROSECUTION OF A DEFINED
BUSINESS ACTIVITY WITHIN THAT STATE, VIZ., THE CONDUCT OF A RETAIL
STORE WHICH IS PART OF A CHAIN UNDER A SINGLE MANAGEMENT, OWNERSHIP OR
CONTROL; THE MEASURE OF THE TAX IS THE NUMBER OF UNITS OF THE CHAIN
WITHIN THE STATE; THE FACT THAT THE RATE OF TAX FOR EACH SUCH UNIT IS
FIXED BY REFERENCE TO ALL THE UNITS OF THE CHAIN, INCLUDING THOSE
OPERATED ELSEWHERE, DOES NOT, IN LEGAL EFFECT, RESULT IN TAXATION OF
PROPERTY OR PRIVILEGES ENJOYED BY THE TAXPAYER BEYOND THE BORDERS OF
THE STATE.  P. 424. 

6.  THE LOUISIANA TAX, SUPRA, MAY BE FURTHER UPHELD AS TAXATION IN
AID OF A POLICY OF THE STATE TO MITIGATE EVILS OF COMPETITION AS
BETWEEN SINGLE STORES AND CHAINS, OR A POLICY TO NEUTRALIZE
DISADVANTAGES OF SMALL CHAINS IN THEIR COMPETITION WITH LARGER ONES, OR
TO DISCOURAGE MERCHANDISING WITHIN THE STATE BY CHAINS GROWN SO LARGE
AS TO BECOME A MENACE TO THE GENERAL WELFARE.  P. 425. 

7.  WITHIN ITS POLICE POWER, THE STATE MAY FORBID THE PROSECUTION OF
A PARTICULAR TYPE OF BUSINESS INIMICAL TO THE PUBLIC WELFARE, OR
REGULATE SUCH BUSINESS TO ABATE EVILS ARISING FROM ITS PURSUIT.  P.
425. 

8.  WHATEVER A STATE MAY FORBID OR REGULATE IT MAY PERMIT UPON
CONDITION THAT A FEE BE PAID IN RETURN FOR THE PRIVILEGE, AND SUCH A
FEE MAY BE EXACTED TO DISCOURAGE THE PROSECUTION OF A BUSINESS OR TO
ADJUST COMPETITIVE OR ECONOMIC INEQUALITIES.  P. 426. 

9.  THE POLICY A STATE IS FREE TO ADOPT WITH RESPECT TO THE BUSINESS
ACTIVITIES OF HER OWN CITIZENS SHE MAY APPLY TO THE CITIZENS OF OTHER
STATES WHO CONDUCT THE SAME BUSINESS WITHIN HER BORDERS, AND THIS
IRRESPECTIVE OF WHETHER THE EVILS REQUIRING REGULATION ARISE SOLELY
FROM OPERATIONS IN THE STATE OR ARE IN PART THE RESULT OF EXTRA-STATE
TRANSACTIONS.  P. 427. 

10.  A PARTY SUBJECTED TO A STATE TAX ONLY IN RESPECT OF LOCAL
ACTIVITIES CANNOT HAVE AN ADVISORY DECREE AGAINST A POSSIBLE
ADMINISTRATION OF THE TAXING ACT WHICH WOULD BURDEN OR REGULATE HIS
RELATED ACTIVITIES IN INTERSTATE COMMERCE.  PP. 427, 429. 

GREAT ATLANTIC & PACIFIC TEA CO. ET AL. V. GROSJEAN, SUPERVISOR OF
PUBLIC ACCOUNTS, ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF LOUISIANA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES,
DISMISSING A BILL TO ENJOIN THE ENFORCEMENT OF A TAX ON CHAIN STORES. 
THE ATLANTIC & PACIFIC TEA COMPANY WAS THE ORIGINAL PLAINTIFF.  OTHER
CHAIN STORE OPERATORS INTERVENED. 

THE LOUISIANA STATUTE TAXES OPERATIONS OUTSIDE OF THE STATE. 

THE FOURTEENTH AMENDMENT PRECLUDES THE STATE FROM IMPOSING A TAX ON
OPERATIONS OUTSIDE THE STATE.  SAFETY DEPOSIT TRUST CO. V. VIRGINIA,
280 U.S. 83, 92; PROVIDENT SAVINGS ASSN. V. KENTUCKY, 239 U.S. 103,
112; LOUISVILLE FERRY CO. V. KENTUCKY, 188 U.S. 385, 395, 396; DELAWARE
L. & W.R. CO. V. PENNSYLVANIA, 198 U.S. 341, 356; UNION TRANSIT CO. V.
KENTUCKY, 199 U.S. 194, 204; NEW YORK LIFE INS. CO. V. HEAD, 234 U.S.
149, 162, 163. 

A STATE CANNOT BY LANGUAGE OR INDIRECTION ACCOMPLISH AN
UNCONSTITUTIONAL PURPOSE.  FIDELITY & DEPOSIT CO. V. TAFOYA, 270 U.S.
426, 434, 435; NATIONAL LIFE INS. CO. V. UNITED STATES, 277 U.S. 508;
MISSOURI V. GEHNER, 281 U.S. 313; SCHUYLKILL TRUST CO. V. PENNSYLVANIA,
296 U.S. 13; BETHLEHEM MOTORS CORP. V. FLYNT, 256 U.S. 421; COLGATE V.
HARVEY, 296 U.S. 404.  DISTINGUISHING: MAXWELL V. BUGBEE, 250 U.S. 525
AND FRICK V. PENNSYLVANIA, 268 U.S. 473. 

THE STATUTE CANNOT BE SUPPORTED ON THE THEORY THAT LOUISIANA TAXES
ONLY WHAT IS IN LOUISIANA BY ANALOGY TO ALLOCATION.  WESTERN UNION V.
KANSAS, 216 U.S. 1; LUDWIG V. WESTERN UNION, 216 U.S. 146; PULLMAN CO.
V. KANSAS, 216 U.S. 56; ATCHISON, T. & S.F. RY. V. O'CONNOR, 223 U.S.
280; LOONEY V. CRANE, 245 U.S. 178; INTERNATIONAL PAPER CO. V.
MASSACHUSETTS, 246 U.S. 135, 142; AIRWAY CORP. V. DAY, 266 U.S. 71;
CUDAHY PACKING CO. V. HINKLE, 278 U.S. 400; HANS REES' SONS V. NORTH
CAROLINA, 283 U.S. 123.  DISTINGUISHING:  WALLACE V. HINES, 253 U.S.
66; BALTIC MINING CO. V. MASSACHUSETTS, 231 U.S. 68. 

THE STATUTE INCREASES THE LOUISIANA TAX WHEN LOUISIANA OPERATIONS
DECREASE IF OUTSIDE OPERATIONS INCREASE.  THIS COULD NEVER HAPPEN UNDER
AN ALLOCATION STATUTE.  CF. FARGO V. HART, 193 U.S. 490; UNION TANK
LINE V. WRIGHT, 249 U.S. 275. 

THE STATUTE PLACES ALL STORES EVERYWHERE IN THE HIGHEST APPLICABLE
BRACKET.  IF LOUISIANA HAS A RIGHT TO DO THIS, THEN EVERY STATE HAS A
SIMILAR RIGHT, AND ALTHOUGH A CORPORATION OWNED ONLY ONE STORE IN EVERY
STATE, THAT STORE WOULD BE IN THE HIGHEST BRACKET EVERYWHERE. 

THE STATUTE DENIES THE EQUAL PROTECTION OF THE LAWS TO CHAINS
OPERATING BOTH WITHIN AND WITHOUT LOUISIANA.  IT WAS NOT DESIGNED TO,
AND DOES NOT, PROTECT INDEPENDENTS AGAINST CHAINS, BUT DISCRIMINATES
AMONG CHAINS.  BUT THE STATE CANNOT CONSISTENTLY WITH THE CONSTITUTION
UNDERTAKE TO BENEFIT OR GIVE ADVANTAGE TO ITS CITIZENS OR THOSE DOING
BUSINESS ONLY WITHIN ITS BORDERS BY DISCRIMINATING AGAINST THOSE WHO
ALSO DO BUSINESS ELSEWHERE.  WARD V. MARYLAND, 12 WALL.  418, 430;
COLGATE V. HARVEY, 296 U.S. 404. 

IF THIS STATUTE IS UPHELD, A STATE MAY MAKE ITS TAX RATES APPLICABLE
TO INCOME AND OPERATIONS WITHIN THE STATE DEPEND UPON FACTORS OUTSIDE
THE STATE.  THE RESULT WOULD BE TO PERMIT THE STATE, IN EFFECT, TO
EXCLUDE FROM THE STATE PERSONS OR CORPORATIONS OPERATING OUTSIDE THE
STATE, AND TO CONVERT THE UNION INTO A CONFEDERATION OF STATES.  SEE
BALDWIN V. G.A.F. SEELIG, INC., 294 U.S. 511.  A TAX BASED UPON SIZE
ALONE, AS E.G. A GRADUATED TAX UPON GROSS SALES, IS ARBITRARY AND
INVALID.  SEE STEWART DRY GOODS CO. V. LEWIS, 294 U.S. 550, 560. 

THE RIGHT OF LOUISIANA TO EXCLUDE A FOREIGN CORPORATION CANNOT BE
USED AS A BASIS FOR TAXING IT UPON PROPERTY THAT, BY ESTABLISHED
PRINCIPLES, THE STATE HAS NO POWER TO TAX.  FIDELITY & DEPOSIT CO. V.
TAFOYA, 270 U.S. 426; QUAKER CITY CAB CO. V. PENNSYLVANIA, 277 U.S.
389. 

PROHIBITION OF SIZE EXTENDING TO OPERATIONS OUTSIDE THE STATE MAY
PROPERLY BE ACCOMPLISHED ONLY BY NATIONAL LEGISLATION.  UNITED STATES
V. BENNETT, 232 U.S. 299, 306. 

IF THE STATUTE IS VALID, MUNICIPALITIES MAY ADOPT CORRESPONDING
ORDINANCES BASED ON OPERATIONS OUTSIDE THE STATE, FURTHER ASSURING
EXCLUSION OF FOREIGN CHAINS. 

EVERY LEGITIMATE CLAIM OF LOUISIANA TO LAY TRIBUTE UPON OPERATIONS
WITHIN ITS BORDERS IS ATTAINED UNDER THE STATE INCOME AND FRANCHISE TAX
LAWS, THE 1932 CHAIN STORE ACT, AND THE GENERAL LICENSE TAX LAWS. 

THE INVALIDITY OF THE 1934 STATUTE WILL LEAVE THE 1932 STATUTE IN
EFFECT. 

ACT 51 OF 1934 LEVIES A LICENSE OR PRIVILEGE TAX ON THE PRIVILEGE OF
OPERATING RETAIL STORES IN MULTIPLE FORM IN LOUISIANA, AND IS CLEARLY
WITHIN THE AUTHORITY OF THE LOUISIANA LEGISLATURE.  LA. CONST., 1921,
ART. 10, SEC. 8. 

THE STATUTE CLASSIFIES BUSINESSES ACCORDING TO TYPE OF BUSINESS DONE
AND THE VALUE OF THE PRIVILEGE TO DO BUSINESS IN LOUISIANA; THE MEASURE
OF THE TAX IS THE NUMBER OF RETAIL STORES IN THE STATE; THE TYPE OF
BUSINESS TRANSACTED IN LOUISIANA AND THE VALUE OF THE PRIVILEGE TO DO
BUSINESS IN LOUISIANA ARE DETERMINED BY THE NUMBER OF RETAIL STORES
UNDER THE SAME GENERAL MANAGEMENT, SUPERVISION, OWNERSHIP OR CONTROL;
THE GREATER THE NUMBER OF RETAIL UNITS IN A CHAIN, THE GREATER THE MANY
ADVANTAGES ACCRUING TO THE OPERATORS OF THE CHAIN, AND THE GREATER THE
ADVANTAGES ACCRUING TO EACH RETAIL UNIT IN THE CHAIN, THEREBY
DETERMINING THE TYPE OF BUSINESS THE RETAIL UNIT OR UNITS ARE ENGAGED
IN, AND THE VALUE OF THE PRIVILEGE OF DOING BUSINESS IN LOUISIANA. 

THE TESTIMONY, DOCUMENTARY EVIDENCE AND OFFERINGS IN THIS CASE
INCLUDE PRACTICALLY THE SAME PROOF FOUND IN STATE BOARD OF TAX COMM'RS
V. JACKSON, 283 U.S. 527.  SEE ALSO LIGGETT CO. V. LEE, 288 U.S. 517,
AND FOX V. STANDARD OIL CO., 294 U.S. 87. 

THE STATUTE INVOLVED TREATS ALL SIMILARLY SITUATED ALIKE.  THAT IS
ALL THAT IS REQUIRED BY THE EQUAL PROTECTION CLAUSES OF THE FEDERAL AND
STATE CONSTITUTIONS.  OHIO OIL CO. V. CONWAY, 281 U.S. 146. 

UNDER ACT 51 OF 1934, THE RATE OF TAX ALONE IS AFFECTED BY THE TOTAL
NUMBER OF RETAIL STORES IN A CHAIN.  CF. MAXWELL V. BUGBEE, 250 U.S.
525; FRICK V. PENNSYLVANIA, 268 U.S. 473. 

THE STATE CAN LOOK BEYOND ITS BORDERS TO DETERMINE TRUE VALUE OF
PROPERTIES WITHIN THE STATE WHEN ALL ARE PART OF A SYSTEM.  WALLACE V.
HINES, 253 U.S. 66; 61 C.J., P. 694; UNION TANK LINE V. WRIGHT, 249
U.S. 275; WESTERN UNION V. TAGGART, 163 U.S. 1; FARGO V. HART, 193 U.S.
490; EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379; FLINT V. STONE
TRACY CO., 220 U.S. 107; BALTIC MINING CO. V. MASSACHUSETTS, 231 U.S.
68. 

THE STATUTE SHOULD BE SUSTAINED ON THE FURTHER GROUND THAT ALL
APPELLANTS ARE FOREIGN CORPORATIONS DOING INTRASTATE BUSINESS IN
LOUISIANA, LIGGETT CO. V. LEE, 288 U.S. 517. 

THE PRIVILEGE OF ENGAGING IN INTRASTATE COMMERCE IN LOUISIANA IN
CORPORATE FORM IS ONE WHICH THE STATE MAY CONFER OR WITHHOLD AS IT SEES
FIT.  RAILWAY EXPRESS AGENCY V. VIRGINIA, 282 U.S. 440. 

IN THE ALTERNATIVE, THE STATUTE, IN EFFECT, CLASSIFIES CHAIN
OPERATORS IN LOUISIANA AS LOCAL, SECTIONAL AND NATIONAL.  SEE LIGGETT
CO. V. LEE, SUPRA. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS CAUSE PRESENTS THE QUESTIONS WHETHER THE METHOD PRESCRIBED BY A
CHAIN STORE TAX ACT FOR ASCERTAINING THE RATE OF TAXATION OFFENDS THE
FOURTEENTH AMENDMENT AND THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION. 

IN 1932 THE LEGISLATURE OF LOUISIANA ADOPTED AN ACT LEVYING AN
OCCUPATION OR LICENSE TAX UPON CHAIN STORES,  FN1  UNDER WHICH THE
EXACTION WAS FIFTEEN DOLLARS UPON EACH OF TWO OR MORE STORES, NOT IN
EXCESS OF FIVE; UPON EACH STORE IN EXCESS OF FIVE, BUT NOT EXCEEDING
TEN, TWENTY-FIVE DOLLARS; AND THE AMOUNT INCREASED IN BRACKETS FOR
ADDITIONAL STORES, THE LAST BRACKET EMBRACING STORES IN EXCESS OF FIFTY
UPON EACH OF WHICH THE TAX WAS TWO HUNDRED DOLLARS. 

BY ACT 51 OF 1934  FN2  THE EARLIER LAW WAS AMENDED TO LAY THE TAX ON
"PERSONS, FIRMS, PARTNERSHIPS, CORPORATIONS OR ASSOCIATIONS OF PERSONS
ENGAGED IN THE BUSINESS OF OPERATING TWO OR MORE STORES OR MERCANTILE
ESTABLISHMENTS, ONE OR MORE OF WHICH IS LOCATED IN THIS STATE ... UNDER
THE SAME GENERAL MANAGEMENT, SUPERVISION, OWNERSHIP OR CONTROL  ..." 
OR MERCANTILE ESTABLISHMENTS INCLUDED UNDER THE SAME GENERAL
MANAGEMENT, SUPERVISION, OWNERSHIP OR CONTROL, WHETHER OPERATED IN THIS
STATE OR NOT, AND SHALL BE FIXED AND GRADED AS FOLLOWS TO WIT:  (1)
UPON STORES OR MERCANTILE ESTABLISHMENTS OPERATED IN THIS STATE AND
BELONGING TO A CHAIN OR GROUP HAVING A TOTAL OF NOT MORE THAN TEN
STORES, THE ANNUAL LICENSE SHALL BE TEN ($10.00) DOLLARS FOR EACH SUCH
STORE OPERATED IN THIS STATE."  THERE ARE FIFTEEN ADDITIONAL PARAGRAPHS
PROGRESSIVELY INCREASING THE RATE PER STORE IN LOUISIANA OF LARGER
CHAINS, THE LAST FIXING THE RATE FOR A STORE BELONGING TO A CHAIN OF
MORE THAN FIVE HUNDRED AT $550. 

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, AN ARIZONA CORPORATION,
OWNING, OPERATING OR CONTROLLING 15,082 STORES IN THE UNITED STATES,
CANADA, AND ELSEWHERE, 106 OF WHICH ARE IN LOUISIANA, FILED ITS BILL IN
THE DISTRICT COURT TO RESTRAIN THE APPELLEES, STATE OFFICERS, FROM
ENFORCING THE STATUTE.  OTHER CORPORATIONS OPERATING CHAINS, SOME UNITS
OF WHICH ARE LOCATED IN LOUISIANA, INTERVENED AS PLAINTIFFS.  A
TEMPORARY RESTRAINING ORDER ISSUED, THE APPELLEES ANSWERED THE BILL,
AND THE CASE WAS HEARD UPON PLEADINGS AND PROOFS BY A SPECIALLY
CONSTITUTED COURT OF THREE JUDGES, WHICH UPHELD THE STATUTE AND
DISMISSED THE BILL.  FN3 

THE CONSTITUTIONAL INFIRMITY OF THE ACT IS SAID TO CONSIST IN
ARBITRARY DISCRIMINATION IN FAVOR OF LOCAL AS AGAINST NATIONAL CHAINS,
IN THE ATTEMPT TO TAX PROPERTY AND ACTIVITIES WHICH ARE BEYOND THE
STATE'S JURISDICTION, AND IN BURDENING INTERSTATE COMMERCE.  WE HOLD
THE LEGISLATION IMPREGNABLE TO ATTACK ON THESE GROUNDS. 

FIRST.  THE EXACTION IS AN OCCUPATION OR LICENSE TAX.  THE SUBJECT IS
THE CONDUCT OF A BUSINESS WITHIN LOUISIANA.  WITHOUT CONTRAVENING THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT A STATE MAY
SEPARATELY CLASSIFY FOR TAXATION THE CONDUCT OF A CHAIN STORE,  FN4
AND MAY INCREASE THE RATE IN PROPORTION TO THE INCREASE IN THE NUMBER
OF STORES WITHIN THE STATE, SINCE THE OPPORTUNITIES AND POWERS OF A
CHAIN STORE OPERATOR BECOME GREATER WITH THE GROWTH OF THE NUMBER OF
UNITS MAINTAINED.  FN5  THE APPELLANTS ASSERT THAT IN ADJUSTING THE
RATE FOR A CHAIN STORE IN LOUISIANA THE LEGISLATURE MAY NOT TAKE INTO
ACCOUNT THE SIZE OF THE CHAIN TO WHICH THE STORE BELONGS, BY COUNTING
THE TOTAL NUMBER OF ITS UNITS WHEREVER LOCATED.  SO TO DO, IT IS
CLAIMED, IS ARBITRARILY TO DISCRIMINATE AGAINST SECTIONAL OR NATIONAL
CHAINS IN FAVOR OF INTRASTATE CHAINS. 

THE DISTRICT COURT FOUND THAT THE TESTIMONY OFFERED BY THE STATE WAS
SIMILAR TO THAT IN TAX COMMISSIONERS V. JACKSON, SUPRA; ESTABLISHED THE
DIFFERENCE IN TYPE OF OPERATION BETWEEN THE OPERATOR OF ONE STORE AND
THE OPERATOR OF MANY, AND THE VARIANCE IN ADVANTAGE AND MODE OF
OPERATION WITH THE NUMBER OF UNITS IN THE CHAIN.  IN ADDITION, THE
COURT FOUND THAT ALL THE STORES OF A RETAIL CHAIN CONTRIBUTE TO THE
CENTRAL PURCHASING POWER OF THE CHAIN IRRESPECTIVE OF STATE LINES AND
LOCATION OF STORES, AND INCREASE THE PER UNIT MULTIPLE ADVANTAGE
ENJOYED BY THE OPERATOR OF THE SYSTEM; THAT THE GREATER THE NUMBER OF
UNITS THE GREATER THE PURCHASING POWER OF THE CHAIN, THE GREATER THE
REBATES AND ALLOWANCES, THE GREATER THE ADVANTAGES IN ADVERTISING, THE
GREATER THE CAPITAL EMPLOYED, THE GREATER THE SOCIAL AND ECONOMIC
CONSEQUENCES, AND THE LOWER THE COST OF DISTRIBUTION AND OVERHEAD.  "IN
FINE, THE RECORD IN THIS CASE SHOWS THE CONTRIBUTION TO THE ADVANTAGES
MADE BY EACH UNIT IN THE CHAIN, AND THE PER UNIT ADVANTAGE MADE
POSSIBLE BY THE WHOLE SYSTEM, AND IN THAT RESPECT ONLY DOES IT DIFFER
MATERIALLY FROM THE PROOF WHICH WAS BEFORE THE COURT IN THE JACKSON
CASE."  THESE FINDINGS ARE ASSIGNED AS ERROR, BUT THEY HAVE SUBSTANTIAL
SUPPORT IN THE RECORD AND WE THEREFORE ACCEPT THEM. 

IF THE COMPETITIVE ADVANTAGES OF A CHAIN INCREASE WITH THE NUMBER OF
ITS COMPONENT LINKS, IT IS HARD TO SEE HOW THESE ADVANTAGES CEASE AT
THE STATE BOUNDARY.  UNDER THE FINDINGS A STORE BELONGING TO A CHAIN OF
ONE HUNDRED, ALL LOCATED IN LOUISIANA, HAS NOT THE SAME COMPETITIVE
ADVANTAGES AS ONE OF ONE HUNDRED LOUISIANA STORES BELONGING TO A
NATIONAL CHAIN OF ONE THOUSAND.  THE APPELLANTS LEAN HEAVILY ON THE
FINDINGS OF THE COURT RESPECTING THE RELATIVE BUSINESS IN NEW ORLEANS
OF THE GREAT ATLANTIC AND PACIFIC COMPANY AND THE H.G. HILL STORES,
INC., A LOUISIANA CORPORATION.  THE COURT FOUND THAT THE OPERATIONS OF
THE TWO ARE GENERALLY OF THE SAME CHARACTER; THE FORMER CONDUCTS ONE
HUNDRED AND SIX STORES IN THE STATE, SIXTY-TWO OF WHICH ARE IN THE CITY
OF NEW ORLEANS; THE LATTER NINETY-TWO IN THE STATE, OF WHICH EIGHTY
SEVEN ARE IN THE CITY.  EACH CONCERN CONDUCTS GROCERY AND MEAT STORES
WITH SUBSTANTIALLY THE SAME LINE OF MERCHANDISE AND THEIR SALES METHODS
ARE PRACTICALLY THE SAME.  THE GROSS VOLUME OF SALES OF HILL IN NEW
ORLEANS IS MUCH GREATER; IT HAS MORE STORES, AND DOES MORE BUSINESS PER
STORE IN THAT CITY THAN THE ATLANTIC AND PACIFIC.  THE COURT FURTHER
FOUND, HOWEVER, THAT THE TOTAL PURCHASING POWER OF THE ATLANTIC AND
PACIFIC IS MUCH GREATER THAN THAT OF HILL; THAT ATLANTIC AND PACIFIC
HAS FIELD OFFICES LOCATED AT PRIMARY MARKETS, WHICH ARE IN CHARGE OF
SPECIALISTS AND SUPERVISED BY CENTRAL PURCHASING OFFICES IN NEW YORK,
AND MAINTAINS DIVISIONAL WAREHOUSES THROUGHOUT THE COUNTRY, WHEREAS THE
OPERATIONS OF HILL ARE CONFINED TO LOUISIANA, AND CHIEFLY TO NEW
ORLEANS.  UNDER THE STATUTE HILL IS TAXABLE AT THE RATE OF $30 PER
STORE AS AGAINST $550 ASSESSABLE AGAINST ATLANTIC AND PACIFIC.  THESE
FACTS ARE SAID TO DEMONSTRATE THAT THE ACT DENIES THE APPELLANT AND
OTHER INTERVENORS THE EQUAL PROTECTION OF THE LAWS BY ARBITRARILY
DISCRIMINATING AGAINST NATIONAL IN FAVOR OF LOCAL CHAINS.  BUT THE
CONTENTION IS ANSWERED NOT ONLY BY THE SPECIFIC FINDING RESPECTING THE
DIFFERENCE BETWEEN THE TWO COMPANIES' METHODS BUT BY THE GENERAL
FINDING THAT ADDITION OF UNITS TO A CHAIN INCREASES THE COMPETITIVE
ADVANTAGE OF EACH STORE IN THE CHAIN. 

THE COURT'S FINDINGS ARE SUPPORTED BY EVIDENCE BEARING UPON A VARIETY
OF ADVANTAGES ENJOYED BY LARGE CHAINS WHICH ARE UNAVAILABLE TO SMALLER
CHAINS.  ONE STRIKING ILLUSTRATION IS FURNISHED BY THE UNCONTRADICTED
PROOF THAT THE ATLANTIC AND PACIFIC COMPANY RECEIVED, IN THE YEAR 1934,
FROM ITS VENDORS, SECRET REBATES, ALLOWANCES, AND BROKERAGE FEES
AMOUNTING TO $8,105,000 WHICH WERE DEMANDED BY THE COMPANY AS A
CONDITION OF PURCHASING FROM THE VENDORS IN QUESTION.  THE LEVERAGE
WHICH ACCOMPLISHED THIS WAS THE ENORMOUS PURCHASING POWER OF THE
COMPANY.  THE AMOUNT THUS OBTAINED EQUALS $530 FOR EACH OF THE ATLANTIC
AND PACIFIC COMPANY'S STORES OR NEARLY THE AMOUNT OF THE TAX EXACTED BY
THE STATUTE.  THE APPELLANTS INSIST THAT THESE FACTS ARE NOT
SIGNIFICANT BECAUSE THERE IS TESTIMONY THAT, IN THE DRUG TRADE,
QUANTITY DISCOUNTS USUALLY DO NOT INCREASE AFTER A CERTAIN VOLUME OF
PURCHASES IS REACHED, BUT THE TESTIMONY DOES NOT SPECIFY THE POINT
WHERE QUANTITY DISCOUNTS CEASE TO GROW.  THE RECORD DISCLOSES WHAT
WOULD BE PLAIN ENOUGH WITHOUT EVIDENCE, THAT GENERALLY VOLUME OF
PURCHASING POWER SPELLS LOWER PRICES, SPECIAL TERMS, AND OTHER
ADVANTAGES.  IT IS UNNECESSARY TO DISCUSS THE EVIDENCE SUPPORTING THE
FINDINGS WITH RESPECT TO OTHER FACILITIES ENJOYED ONLY, OR IN INCREASED
MEASURE, BY THE LARGER CHAINS. 

THE APPELLANTS URGE THAT THE ACT ARBITRARILY DISCRIMINATES IN FAVOR
OF LOCAL CHAINS BECAUSE IT IS INCONCEIVABLE THAT A CHAIN OPERATING
WHOLLY WITHIN THE STATE WOULD HAVE FIVE HUNDRED STORES, NOT TO MENTION
UPWARDS OF FIFTEEN THOUSAND, THE NUMBER MAINTAINED BY THE ATLANTIC AND
PACIFIC.  THE ARGUMENT IS INCONSISTENT WITH THE FINDING THAT ADDITIONAL
UNITS, WHEREVER SITUATE, INCREASE THE ADVANTAGES AND ECONOMIC EFFECTS
OF THE CHAIN AS A WHOLE AND OF EACH UNIT; AND IGNORES THE POSSIBILITY
THAT A CHAINSTORE COMPANY OF NATIONAL SCOPE MIGHT WELL BE INCORPORATED
IN LOUISIANA, WHOSE STORES IN THAT STATE WOULD BE RATED FOR TAXATION
ACCORDING TO ITS TOTAL STORES WITHIN AND WITHOUT THE STATE. 

OTHER INSTANCES OF THE WORKING OF THE ACT ARE CITED TO SHOW THAT IT
ARBITRARILY DISCRIMINATES AGAINST NATIONAL CHAINS AND IN FAVOR OF LOCAL
ONES SOLELY BECAUSE THEY ARE SUCH.  THUS, IT IS SAID, IF A NATIONAL
CHAIN OWNING 501 STORES IN OTHER STATES, ESTABLISHES A SINGLE STORE IN
A LOUISIANA CITY WHERE THERE IS A LOCAL CHAIN OF TWO OR THREE LIKE
ESTABLISHMENTS, THE NATIONAL CONCERN MUST PAY A LICENSE OF $550 FOR ITS
ONE STORE WHILE THE STORES OF THE LOCAL CHAIN ARE TAXED BUT $10 EACH. 
THE APPELLEES RETORT THAT SINCE THE EARLIER LAW IMPOSED A TAX OF $15 ON
EACH STORE IN THE LOCAL CHAIN AND NONE UPON THE ONE LOUISIANA STORE OF
THE NATIONAL CHAIN IT WAS MORE VULNERABLE TO THE CHARGE OF
ARBITRARINESS THAN THE ACT UNDER REVIEW.  WHATEVER THE PERTINENCE OF
THE REPLY, THE FACTS FOUND RESPECTING THE ADVANTAGES OF A LARGER CHAIN
AS COMPARED WITH A SMALLER JUSTIFY AS NOT UNREASONABLE OR ARBITRARY THE
IMPOSITION OF A HIGHER LICENSE TAX ON THE UNITS OF THE FORMER WHICH ARE
MAINTAINED WITHIN THE STATE.  EVEN ONE UNIT OF SUCH A NATIONAL CHAIN
LOCATED IN LOUISIANA ENJOYS COMPETITIVE ADVANTAGES OVER THE STORES OF
THE LOCAL PROPRIETOR CONSEQUENT UPON ITS RELATION TO THE FAR-FLUNG
ACTIVITIES AND FACILITIES OF THE CHAIN. 

THE ACT UNDER REVIEW IS TO BE DISTINGUISHED FROM THE FLORIDA STATUTE
CONSIDERED IN LIGGETT CO. V. LEE, SUPRA, WHICH INCREASED THE TAX IF THE
CHAIN HAPPENED TO HAVE STORES IN TWO COUNTIES OF THE STATE RATHER THAN
IN ONE.  THE INCREASE OF RATE WAS HELD ARBITRARY BECAUSE IT WAS
UNRELATED TO THE SIZE OR CHARACTER OF THE CHAIN AND WAS CONDITIONED
SOLELY UPON THE LOCATION OF ONE OR MORE OF ITS UNITS.  THE LOUISIANA
ACT ADOPTS NO SUCH BASIS OF CLASSIFICATION.  A SMALL CHAIN OF THREE
STORES, ONE OF WHICH IS IN LOUISIANA AND TWO IN MISSISSIPPI, WILL PAY
EXACTLY THE SAME TAX AS A SIMILAR ORGANIZATION HAVING THE SAME NUMBER
OF STORES ALL IN LOUISIANA.  A CONCERN HAVING NINETY-TWO STORES
SCATTERED OVER TEN STATES, SEVEN OF WHICH ARE IN LOUISIANA, WILL PAY
EXACTLY THE SAME TAX PER LOUISIANA STORE AS THE H.G. HILL STORES, INC.,
ALL OF WHOSE NINETY-TWO STORES ARE IN LOUISIANA.  THUS IT APPEARS THAT
THE CLASSIFICATION IS NOT BASED UPON THE LOCATION OF THE STORES WITHIN
OR WITHOUT THE STATE BUT UPON THE TYPE OF BUSINESS CONDUCTED, THE SCALE
OF THAT BUSINESS, ITS ACCOMPANYING COMPETITIVE ADVANTAGES AND ECONOMIC
RESULTS. 

FINALLY, SINCE THE COURT BELOW FOUND THAT THE SALES AND EARNINGS OF
THE INDIVIDUAL STORES OF A CHAIN DIFFER IN VARIOUS PORTIONS OF THE
COUNTRY AND THOSE OF THE LOUISIANA STORES HAVE BEEN BELOW THE AVERAGE
FOR ALL STORES OF MANY OF THE APPELLANTS, THE CLAIM IS THAT THE
STATUTE, BY TAKING INTO ACCOUNT ALL UNITS INDISCRIMINATELY IN FIXING
THE RATE, ARBITRARILY DISREGARDS THE VALUE OF THE LOCAL PRIVILEGE FOR
WHICH THE LICENSE FEE IS CHARGED.  WE CANNOT SAY THAT CLASSIFICATION OF
CHAINS ACCORDING TO THE NUMBER OF UNITS MUST BE CONDEMNED BECAUSE
ANOTHER METHOD MORE NICELY ADJUSTED TO REPRESENT THE DIFFERENCES IN
EARNING POWER OF THE INDIVIDUAL STORES MIGHT HAVE BEEN CHOSEN, FOR THE
LEGISLATURE IS NOT REQUIRED TO MAKE METICULOUS ADJUSTMENTS IN AN EFFORT
TO AVOID INCIDENTAL HARDSHIPS.  FN6  IT IS ENOUGH THAT THE
CLASSIFICATION HAS REASONABLE RELATION TO THE DIFFERENCES IN THE
PRACTICES OF SMALL AND LARGE CHAINS.  THE STATUTE BEARS EQUALLY UPON
ALL WHO FALL INTO THE SAME CLASS, AND THIS SATISFIES THE GUARANTY OF
EQUAL PROTECTION.  FN7 

SECOND.  THE APPELLANTS CONTEND THE ACT DEPRIVES THEM OF PROPERTY
WITHOUT DUE PROCESS OF LAW BECAUSE THE TAX IS IMPOSED, AT LEAST IN
PART, UPON THINGS WHICH ARE BEYOND THE JURISDICTION OF LOUISIANA.  THE
STATE MAY NOT TAX REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY LYING
OUTSIDE HER BORDERS; FN8  NOR MAY SHE LAY AN EXCISE OR PRIVILEGE TAX
UPON THE EXERCISE OR ENJOYMENT OF A RIGHT OR PRIVILEGE IN ANOTHER STATE
DERIVED FROM THE LAWS OF THAT STATE AND THEREIN EXERCISED AND ENJOYED. 
FN9  BUT, AS WE HAVE SEEN, THE SUBJECT OF THE TAX IN QUESTION IS THE
PROSECUTION OF A DEFINED BUSINESS ACTIVITY WITHIN THE STATE OF
LOUISIANA,  - THE CONDUCT OF A RETAIL STORE WHICH IS A PART OF A CHAIN
UNDER A SINGLE MANAGEMENT, OWNERSHIP OR CONTROL,  - A LEGITIMATE
SUBJECT OF A LICENSE OR OCCUPATION TAX.  THE MEASURE OF THE EXACTION IS
THE NUMBER OF UNITS OF THE CHAIN WITHIN THE STATE,  - A MEASURE
SANCTIONED BY OUR DECISIONS.  THE RATE OF TAX FOR EACH SUCH UNIT IS
FIXED BY REFERENCE TO THE SIZE OF THE ENTIRE CHAIN.  IN LEGAL
CONTEMPLATION THE STATE DOES NOT LAY A TAX UPON PROPERTY LYING BEYOND
HER BORDERS NOR DOES SHE TAX ANY PRIVILEGE EXERCISED AND ENJOYED BY THE
TAXPAYER IN OTHER STATES.  THE LAW RATES THE PRIVILEGE ENJOYED IN
LOUISIANA ACCORDING TO THE NATURE AND EXTENT OF THAT PRIVILEGE IN THE
LIGHT OF THE ADVANTAGES, THE CAPACITY, AND THE COMPETITIVE ABILITY OF
THE CHAIN'S STORES IN LOUISIANA CONSIDERED NOT BY THEMSELVES, AS IF
THEY CONSTITUTED THE WHOLE ORGANIZATION, BUT IN THEIR SETTING AS
INTEGRAL PARTS OF A MUCH LARGER ORGANIZATION.  WE CANNOT HOLD THAT THIS
PRIVILEGE IS UNAFFECTED BY THE STATUS OF THE LOUISIANA STORES AS
MEMBERS OF SUCH A CHAIN OR THAT RECOGNITION OF THE ADVANTAGES AND
CAPACITIES ENJOYED BY THEM AS A RESULT OF THAT MEMBERSHIP IS FORBIDDEN
IN CLASSIFYING THEM FOR PROGRESSIVE INCREASE OF RATE.  SUCH
CLASSIFICATION IS NOT IN LEGAL EFFECT THE TAXATION OF PROPERTY OR
PRIVILEGES POSSESSED OR ENJOYED BY THE TAXPAYER BEYOND THE BORDERS OF
THE STATE. 

MAXWELL V. BUGBEE, 250 U.S. 525, GOES FAR TO SUSTAIN THE VALIDITY OF
THE ACT.  FN10  THE EXACTION IN THE PRESENT CASE IS EVEN LESS OPEN TO
THE ACCUSATION OF EXTRA-TERRITORIALITY THAN THE ONE THERE UNDER
CONSIDERATION, BECAUSE HERE IT CANNOT BE CLAIMED, AS IT WAS THERE, THAT
NOT ALONE THE RATE, BUT TO SOME EXTENT, THE MEASURE OF THE TAX, IS
AFFECTED BY THE ENJOYMENT OF EXTRA-STATE PRIVILEGES. 

OUR DECISION NEED NOT, HOWEVER, REST ON CONCEPTIONS OF SUBJECT,
MEASURE AND RATE OF TAX.  MUCH BROADER CONSIDERATIONS TOUCHING THE
STATE'S INTERNAL POLICY OF POLICE SUSTAIN THE EXACTION.  THE TAX IS
LAID SOLELY UPON INTRASTATE COMMERCE.  FN11  IN THE EXERCISE OF ITS
POLICE POWER THE STATE MAY FORBID, AS INIMICAL TO THE PUBLIC WELFARE,
THE PROSECUTION OF A PARTICULAR TYPE OF BUSINESS, FN12  OR REGULATE A
BUSINESS IN SUCH MANNER AS TO ABATE EVILS DEEMED TO ARISE FROM ITS
PURSUIT.  FN13  WHATEVER A STATE MAY FORBID OR REGULATE IT MAY PERMIT
UPON CONDITION THAT A FEE BE PAID IN RETURN FOR THE PRIVILEGE,  FN14
AND SUCH A FEE MAY BE EXACTED TO DISCOURAGE THE PROSECUTION OF A
BUSINESS OR TO ADJUST COMPETITIVE OR ECONOMIC INEQUALITIES.  FN15
TAXATION MAY BE MADE THE IMPLEMENT OF THE EXERCISE OF THE STATE'S
POLICE POWER; FN16  AND PROPER AND REASONABLE DISCRIMINATION BETWEEN
CLASSES TO PROMOTE FAIR COMPETITIVE CONDITIONS AND TO EQUALIZE ECONOMIC
ADVANTAGES IS THEREFORE LAWFUL.  FN17 

IF, IN THE INTEREST OF THE PEOPLE OF THE STATE, THE LEGISLATURE
DEEMED IT NECESSARY EITHER TO MITIGATE EVILS OF COMPETITION AS BETWEEN
SINGLE STORES AND CHAINS OR TO NEUTRALIZE DISADVANTAGES OF SMALL CHAINS
IN THEIR COMPETITION WITH LARGER ONES, OR TO DISCOURAGE MERCHANDISING
WITHIN THE STATE BY CHAINS GROWN SO LARGE AS TO BECOME A MENACE TO THE
GENERAL WELFARE, IT WAS AT LIBERTY TO REGULATE THE MATTER DIRECTLY OR
TO RESORT TO THE TYPE OF TAXATION EVIDENCED BY THE ACT OF 1934 AS A
MEANS OF REGULATION.  THE APPELLANTS, BY INCORPORATING IN SOME OTHER
STATE, OR BY SPREADING THEIR BUSINESS AND ACTIVITIES OVER OTHER STATES,
CANNOT SET AT NAUGHT THE PUBLIC POLICY OF LOUISIANA.  THE CLAIM IS,
ESSENTIALLY, THAT EVEN IF LOCAL EVILS FLOW FROM THE APPELLANT'S METHODS
THE STATE CANNOT CONTROL THOSE EVILS BECAUSE ITS POWER IS LIMITED TO
CONDITIONS CREATED BY THE MEMBERS OF THE CHAIN FOUND WITHIN THE STATE. 
THE CONCLUSION IS THAT THE STATE MUST TREAT THESE STORES AS IF THEY
WERE SOMETHING DIFFERENT FROM WHAT THEY REALLY ARE, SINCE TO DO
OTHERWISE WOULD BE TO REACH BEYOND THE BORDERS OF LOUISIANA FOR THE
MEASURE OF THE TAX.  THE ARGUMENT ANSWERS ITSELF.  THE POLICY LOUISIANA
IS FREE TO ADOPT WITH RESPECT TO THE BUSINESS ACTIVITIES OF HER OWN
CITIZENS SHE MAY APPLY TO THE CITIZENS OF OTHER STATES WHO CONDUCT THE
SAME BUSINESS WITHIN HER BORDERS, AND THIS IRRESPECTIVE OF WHETHER THE
EVILS REQUIRING REGULATION ARISE SOLELY FROM OPERATIONS IN LOUISIANA OR
ARE IN PART THE RESULT OF EXTRA-STATE TRANSACTIONS.  IT IS NOT A DENIAL
OF DUE PROCESS TO ADJUST SUCH LICENSE TAXES AS ARE HERE INVOLVED TO
MEET THE LOCAL EVIL RESULTING FROM BUSINESS PRACTICES AND SUPERIOR
ECONOMIC POWER EVEN THOUGH THOSE ADVANTAGES AND THAT POWER ARE LARGELY
DUE TO THE FACT THAT THE TAXPAYER DOES BUSINESS NOT ONLY IN LOUISIANA
BUT IN OTHER STATES. 

THIRD.  MONTGOMERY WARD & COMPANY, ONE OF THE APPELLANTS, FILED A
BILL OF INTERVENTION.  IN ADDITION TO THE OBJECTIONS ALREADY CONSIDERED
IT CONTENDS THAT, AS APPLIED TO ITS BUSINESS, THE ACT OF 1934
CONSTITUTES AN INTERFERENCE WITH AND A REGULATION OF INTERSTATE
COMMERCE FORBIDDEN BY ART. I, SEC. 8 OF THE CONSTITUTION.  THE
ALLEGATION IS THAT THIS APPELLANT OWNS AND OPERATES FIVE STORES IN
LOUISIANA AND FOUR HUNDRED AND EIGHTY-SIX OTHERS SPREAD OVER FORTY-FIVE
STATES; OWNS AND OPERATES NINE MAIL ORDER HOUSES LOCATED IN STATES
OTHER THAN LOUISIANA AND NINETEEN SO-CALLED ORDER STATIONS LOCATED AT
VARIOUS POINTS OUTSIDE LOUISIANA, THE MAIL ORDER HOUSES AND ORDER
STATIONS ALL BEING EXCLUSIVELY ENGAGED IN INTERSTATE COMMERCE.  THE
ORDER STATIONS ARE INSTALLED IN RENTED SPACES WITH ONE REGULAR EMPLOYE
AT EACH AND WITH A STOCK OF SAMPLES, THE ONLY BUSINESS TRANSACTED IN
THEM BEING THE TAKING OF ORDERS WHICH ARE TRANSMITTED TO, AND FILLED
BY, THE MAIL ORDER HOUSES.  WITH RESPECT TO THE OPERATION OF THE ACT
THE BILL STATES:  "INTERVENOR ALLEGES THAT WHILE THE PRESENT
ADMINISTRATIVE INTERPRETATION OF SAID ACT 51 OF THE LOUISIANA
LEGISLATURE OF 1934 APPARENTLY LIMITS THE OPERATION OF SAID ACT TO THE
INTERVENOR'S RETAIL STORES, THE WORDS 'MERCANTILE ESTABLISHMENTS' USED
IN SAID ACT APPARENTLY INCLUDE THE AFORESAID MAIL ORDER HOUSES AND
ORDER STATIONS OWNED AND OPERATED BY THE INTERVENOR.  SAID ACT DOES NOT
BY ITS TERMS EXCLUDE FROM ITS OPERATION SAID ESTABLISHMENTS ENGAGED IN
INTERSTATE COMMERCE, AND, THEREFORE, VIOLATES THE COMMERCE CLAUSE OF
THE UNITED STATES CONSTITUTION ..." 

THE TRIAL COURT FOUND THE FACTS AS FOLLOWS: 

"MONTGOMERY WARD & COMPANY, AN ILLINOIS CORPORATION, OPERATES 9 MAIL
ORDER ESTABLISHMENTS ENGAGED IN FILLING ORDERS RECEIVED FROM POINTS IN
THE UNITED STATES AND FOREIGN COUNTRIES THROUGH THE MAIL.  NONE OF
THESE MAIL ORDER ESTABLISHMENTS ARE SITUATED IN LOUISIANA.  THE COMPANY
ALSO HAS 19 MAIL ORDER OFFICES, NONE OF WHICH ARE SITUATED IN
LOUISIANA; 17 CLASS A DEPARTMENT STORES CARRYING A COMPLETE LINE OF
GENERAL MERCHANDISE, NONE OF WHICH ARE SITUATED IN LOUISIANA; 456 CLASS
B RETAIL STORES OF LIMITED SIZE AND CARRYING A LIMITED LINE OF
MERCHANDISE, OF WHICH 5 ARE LOCATED IN LOUISIANA; AND 16 CLASS C STORES
DEVOTED EXCLUSIVELY TO THE SALE OF HARDWARE, HOUSEHOLD APPLIANCES,
AUTOMOBILE TIRES AND TUBES, OF WHICH NONE ARE LOCATED IN LOUISIANA. 
THE 5 LOUISIANA CLASS B STORES TAKE ORDERS TO BE FILLED BY MAIL FROM
THE COMPANY'S MAIL ORDER ESTABLISHMENT LOCATED AT FORTH WORTH, IN
ADDITION TO SELLING MERCHANDISE AT RETAIL AT ITS PLACE OF BUSINESS TO
THE PUBLIC."    AS A CONCLUSION OF LAW THE COURT HELD "THE CLAIM (OF
THE INTERVENOR) DOES NOT MERIT SERIOUS CONSIDERATION.  THE STATUTE BY
ITS EXPRESS TERMS APPLIES ONLY 'WHERE GOODS, WARES, MERCHANDISE OR
COMMODITIES OF EVERY DESCRIPTION WHATSOEVER ARE SOLD OR OFFERED FOR
SALE AT RETAIL.'"    ERROR IS ASSIGNED TO THE DISTRICT COURT'S
CONCLUSION AND THE APPELLANT INSISTS THAT THE STATUTE IS BAD BECAUSE IT
IMPOSES A SINGLE AND INDIVISIBLE TAX FOR THE PRIVILEGE OF CONDUCTING A
BUSINESS BOTH INTERSTATE AND INTRASTATE, PARTLY MEASURED BY INTERSTATE
OPERATIONS WHOLLY EXTRASTATE. 

AS RESPECTS THE REGULATION OF INTERSTATE COMMERCE THE INTERVENOR'S
BILL IS PREMATURE AND WITHOUT EQUITY.  THE STATUTE WAS APPROVED JULY
12, 1934, AND BECAME EFFECTIVE FOR THE CALENDAR YEAR 1935 AND
SUBSEQUENT YEARS.  FEBRUARY 27, 1935, BOTH THE BILL OF THE GREAT
ATLANTIC & PACIFIC TEA COMPANY AND MONTGOMERY WARD & COMPANY'S
INTERVENING BILL WERE FILED.  THE RECORD DISCLOSES NO RULES OR
REGULATIONS PROMULGATED BY THE APPELLEE SUPERVISOR OF PUBLIC ACCOUNTS
AND NO RULING BY ANY RESPONSIBLE STATE OFFICIAL AS TO WHICH OF
MONTGOMERY WARD & COMPANY'S ESTABLISHMENTS ARE TO BE INCLUDED IN
RECKONING THE TOTAL OF ITS RETAIL STORES.  FOR ALL THAT APPEARS NEITHER
ITS MAIL ORDER HOUSES, NOR ITS ORDER STATIONS, NOR ITS DEPARTMENT
STORES, WILL BE INCLUDED IN THE COMPUTATION. 

IT IS MANIFEST THAT MONTGOMERY WARD & COMPANY CANNOT UPON MERE
SUPPOSITION THAT THE ACT WILL BE UNCONSTITUTIONALLY CONSTRUED AND
APPLIED IN RESPECT OF ITS FIVE STORES IN LOUISIANA OBTAIN AN ADVISORY
DECREE THAT THE ACT MUST NOT BE SO ADMINISTERED AS TO BURDEN OR
REGULATE INTERSTATE COMMERCE.  FN18 

THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED. 

FN1  NO. 19 OF 1932; ACTS OF LOUISIANA, 1932, P. 125. 

FN2  ACTS OF LOUISIANA 1934, P. 251. 

FN3  16 F.SUPP.  499. 

FN4  TAX COMMISSIONERS V. JACKSON, 283 U.S. 527; LIGGETT CO. V. LEE,
288 U.S. 517. 

FN5  FOX V. STANDARD OIL CO., 294 U.S. 87, 100. 

FN6  COMPARE LINDSLEY V. NATURAL CARBONIC GAS CO., 220 U.S. 61, 78;
CHESAPEAKE & OHIO RY. V. CONLEY, 230 U.S. 513, 522; CONTINENTAL BAKING
CO. V. WOODRING, 286 U.S. 352, 371; FOX V. STANDARD OIL CO., SUPRA,
101, 102. 

FN7  TAX COMMISSIONERS V. JACKSON, SUPRA, P. 542; FOX V. STANDARD OIL
CO., SUPRA, 101. 

FN8  LOUISVILLE & J. FERRY CO. V. KENTUCKY, 188 U.S. 385; DELAWARE L.
& W.R. CO. V. PENNSYLVANIA, 198 U.S. 341; UNION REFRIGERATOR TRANSIT
CO. V. KENTUCKY, 199 U.S. 194. 

FN9  FRICK V. PENNSYLVANIA, 268 U.S. 473. 

FN10  SEE THE COMMENT ON MAXWELL V. BUGBEE IN FRICK V. PENNSYLVANIA,
268 U.S. AT P. 495. 

FN11  NATHAN V. LOUISIANA, 8 HOW.  73, 80-81; RAST V. VAN DEMAN &
LEWIS CO., 240 U.S. 342, 360. 

FN12  LICENSE CASES, 5 HOW.  504; MUGLER V. KANSAS, 123 U.S. 623, 662
663; WILLIAMS V. ARKANSAS, 217 U.S. 79; CENTRAL LUMBER CO. V. SOUTH
DAKOTA, 226 U.S. 157, 162. 

FN13  OZAN LUMBER CO. V. UNION COUNTY BANK, 207 U.S. 251; ENGEL V.
O'MALLEY, 219 U.S. 128, 137. 

FN14  WIGGINS FERRY CO. V. EAST ST. LOUIS, 107 U.S. 365, 373, 374
376. 

FN15  AMERICAN SUGAR REFINING CO. V. LOUISIANA, 179 U.S. 89, 92-95;
REYMANN BREWING CO. V. BRISTER, 179 U.S. 445, 453; WILLIAMS V. FEARS,
179 U.S. 270, 276; W.W. CARGILL CO. V. MINNESOTA, 180 U.S. 452, 469;
MCCRAY V. UNITED STATES, 195 U.S. 27, 60; BROWN-FORMAN CO. V. KENTUCKY,
217 U.S. 563, 573; QUONG WING V. KIRKENDALL, 223 U.S. 59, 62; BRAZEE V.
MICHIGAN, 241 U.S. 340, 342; ALASKA FISH CO. V. SMITH, 255 U.S. 44;
LIBERTY WAREHOUSE COMPANY V. TOBACCO GROWERS ASSN., 276 U.S. 71, 96;
SPROLES V. BINFORD, 286 U.S. 374, 394; MAGNANO CO. V. HAMILTON, 292
U.S. 40, 43, 44; FOX V. STANDARD OIL CO., 294 U.S. 87, 100; SONZINSKY
V. UNITED STATES, 300 U.S. 506. 

FN16  GUNDLING V. CHICAGO, 177 U.S. 183, 188, 189; RAST V. VAN DEMAN
& LEWIS CO., SUPRA, 368; COMPANIA GENERAL V. COLLECTOR, 275 U.S. 87,
95, 96; SONZINSKY V. UNITED STATES, SUPRA. 

FN17  BRADLEY V. RICHMOND, 227 U.S. 477, 480, 484; HAMMOND PACKING
CO. V. MONTANA, 233 U.S. 331, 333-334; RAST V. VAN DEMAN & LEWIS CO.,
SUPRA; P. 368; TANNER V. LITTLE, 240 U.S. 369, 382-383; ST. LOUIS
POSTER ADVERTISING CO. V. ST. LOUIS, 249 U.S. 269, 274. 

FN18  COMPARE HODGE CO. V. CINCINNATI, 284 U.S. 335, 338; CONTINENTAL
BAKING CO. V. WOODRING, 286 U.S. 352, 369; ASHWANDER V. TENNESSEE
VALLEY AUTHORITY, 297 U.S. 288, 324. 

MR. JUSTICE VAN DEVANTER AND MR. JUSTICE STONE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE SUTHERLAND, DISSENTING. 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER AND I ARE OF OPINION THAT
THE STATUTE HERE INVOLVED IS INVALID AS CONSTITUTING A DENIAL OF THE
EQUAL PROTECTION OF THE LAWS AND AN ATTEMPTED EXERTION OF THE
LEGISLATIVE POWER OF THE STATE WITH RESPECT TO PROPERTIES AND
BUSINESSES LOCATED BEYOND ITS TERITORIAL BORDERS. 

IN TAX COMMISSIONERS V. JACKSON, 283 U.S. 527, THIS COURT SUSTAINED
THE VALIDITY OF AN INDIANA STATUTE IMPOSING A CHAIN-STORE TAX GRADUATED
ACCORDING TO THE NUMBER OF STORES UNDER THE SAME GENERAL MANAGEMENT. 
BUT THERE, THE AMOUNT OF THE TAX IN RESPECT OF EACH STORE WAS GRADUATED
ACCORDING TO THE WHOLE NUMBER OF STORES WITHIN THE STATE.  HERE, THE
AMOUNT OF THE TAX IS NOT LIMITED BY THE NUMBER OF STORES OPERATED
WITHIN THE STATE, BUT IS INCREASED BY INCLUDING STORES OPERATED IN
OTHER STATES AND FOREIGN COUNTRIES.  IF, FOR EXAMPLE, THE OWNER OF A
SINGLE STORE IN LOUISIANA HAS FEWER THAN TEN STORES OUTSIDE THE STATE,
HE PAYS A TAX OF $10; BUT IF HE OPERATES AS MANY AS TEN STORES IN OTHER
STATES OR IN CANADA, HE IS REQUIRED TO PAY UPON HIS STORE IN LOUISIANA
$15 ANNUALLY.  AND AS THE STORES OUTSIDE THE STATE FURTHER INCREASE IN
NUMBER, THE TAX UPON THE SINGLE STORE IN LOUISIANA RISES BY SUCCESSIVE
STEPS UNTIL IT REACHES, IN THE HIGHEST BRACKET, WHERE THE STORES
OUTSIDE EXCEED 500 IN NUMBER, THE SUM OF $550 UPON THE SINGLE LOUISIANA
STORE. 

WE THOUGHT THE CLASSIFICATION IN THE JACKSON CASE, ALTHOUGH CONFINED
TO STORES WITHIN THE STATE, WAS SO ARBITRARY AS TO RENDER THE TAX
INVALID UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT,
AND, TOGETHER WITH MR. JUSTICE VAN DEVANTER, WHO TAKES NO PART IN THIS
CASE, SET FORTH OUR VIEWS AT LENGTH IN A DISSENTING OPINION.  283 U.S.
543 ET SEQ. WE REST UPON WHAT WAS THERE SAID, WITHOUT REPEATING IT, NOT
FOR THE PURPOSE OF AGAIN CHALLENGING THE DECISION IN THE JACKSON CASE,
BUT BECAUSE WHAT WE SAID APPLIES MORE PLAINLY TO THE VARIANT FACTS OF
THE CASE NOW UNDER CONSIDERATION.  WE THOUGHT THEN THAT THE JACKSON
CASE WAS WRONGLY DECIDED, BUT, ACCEPTING IT AS AUTHORITATIVE, IT SEEMS
TO US CERTAIN THAT IT GOES TO THE EXTREME VERGE OF THE LAW, AND, FOR
THE REASONS GIVEN IN OUR DISSENTING OPINION, EQUALLY CERTAIN THAT THE
PRESENT DECISION GOES FAR BEYOND THE VERGE.  WE ADD A FEW WORDS IN
SUPPORT OF THAT VIEW. 

THE INDIANA LAW EFFECTED A DISCRIMINATION BETWEEN TWO CLASSES -
NAMELY, OPERATORS OF CHAIN STORES AND OPERATORS OF INDEPENDENT STORES
WITHIN THE BOUNDARIES OF THE STATE, WITHOUT REFERENCE TO ANY STORES
OUTSIDE.  THE LOUISIANA LAW EFFECTS A DISCRIMINATION BETWEEN TWO
MEMBERS OF THE SAME CLASS - NAMELY, CHAIN-STORE OPERATORS WITHIN THE
STATE, WHERE THE ONLY DIFFERENCE BETWEEN THEM IS THAT ONE ALSO OPERATES
STORES IN OTHER STATES AND IN CANADA, WHILE THE OTHER DOES NOT.  THUS,
FOR ILLUSTRATION, IF A OPERATES ELEVEN STORES IN LOUISIANA, DOING A
BUSINESS OF $10,000,000 PER YEAR, AND HAS NONE OUTSIDE, HE PAYS $15 FOR
EACH STORE, OR A TOTAL OF $165, WHILE IF B OPERATES ELEVEN STORES IN
LOUISIANA, AND HAPPENS TO HAVE 490 STORES DISTRIBUTED AMONG THE
REMAINING 47 STATES OF THE UNION AND FOREIGN COUNTRIES, DOING A TOTAL
BUSINESS OF $5,000,000 PER YEAR, HE IS COMPELLED TO PAY $550 UPON EACH
OF HIS ELEVEN STORES, OR A TOTAL OF $6,050 - 36 TIMES THE AMOUNT OF THE
TAX PAID BY A. THIS ENORMOUS DIFFERENCE IS BASED UPON A STATE OF
AFFAIRS WHOLLY EXTERNAL TO THE STATE OF LOUISIANA, THE EFFECT OF WHICH
UPON THE LOUISIANA BUSINESS IS A MATTER OF BALD CONJECTURE, VARYING
WIDELY, AS IT MUST, WITH THE LOCALITIES IN WHICH THE FOREIGN STORES ARE
TO BE FOUND AND THE LOCAL CIRCUMSTANCES BY WHICH THEIR OPERATIONS ARE
AFFECTED. 

MOREOVER, IF THE LOUISIANA STATUTE BE VALID, OTHER STATES IN THE
UNION MAY PASS SIMILAR ACTS; AND IT IS NOT IMPROBABLE THAT THEY WILL. 
AND IF THEY DO SO, A REMARKABLE SITUATION WILL BE BROUGHT ABOUT.  LET
US SUPPOSE, FOR EXAMPLE, THAT TEN ADDITIONAL STATES, RANGING FROM MAINE
TO CALIFORNIA, ADOPT THE LOUISIANA FORM OF LEGISLATION.  IN EACH OF THE
STATES, INCLUDING LOUISIANA, A GIVEN OPERATOR HAS TEN STORES, MAKING
110 IN ALL.  IN THAT CASE HE WILL PAY IN EACH STATE A TAX BASED NOT
UPON THE OPERATION OF TEN STORES, BUT ON THE OPERATION OF 110. 
INSTEAD, THEREFORE, OF PAYING IN EACH STATE $100 UPON THE BASIS OF $10
FOR EACH OF THE TEN STORES, HE WILL PAY $500 UPON THE BASIS OF $50 FOR
EACH OF THE TEN STORES.  IF HE SHOULD THEN PUT INTO OPERATION SIXTEEN
ADDITIONAL STORES, LET US SAY IN CANADA OR NORWAY, HE WOULD IMMEDIATELY
BRING HIMSELF INTO THE BRACKET WHERE THE TAX UPON EACH STORE IS FIXED
AT $100 - THUS INCREASING HIS TOTAL TAXATION IN THE ELEVEN STATES FROM
$5,500 TO $11,000, IN VIRTUE OF THESE COMPARATIVELY SMALL OPERATIONS IN
A FOREIGN COUNTRY, THE EFFECT OF WHICH, IF ANY, IN RESPECT OF
COMPETITIVE ADVANTAGES IN ANY ONE OF THE ELEVEN STATES COULD HARDLY BE
DESCRIBED OTHERWISE THAN AS PURELY SPECULATIVE. 

THE EXACTION HERE INVOLVED IS NOT A TAX UPON LOUISIANA PROPERTY OR
BUSINESS, BUT IS ESSENTIALLY A PENALTY IMPOSED UPON AN OPERATOR OF
BUSINESS WHOLLY BEYOND THE REACH OF THE LAW OF THAT STATE.  WE ARE NOT
ABLE TO CONCEDE THAT IT LIES WITHIN THE PROVINCE OF ONE STATE TO THUS
INDIRECTLY PENALIZE A METHOD OF DOING BUSINESS IN ANOTHER STATE, WHICH
IT MAY BE THE POLICY OF THE LATTER TO PERMIT OR, INDEED, ENCOURAGE. 
COMPARE BALDWIN V. G.A.F. SEELIG, 294 U.S. 511, 521-524.  THE FOREGOING
ILLUSTRATIONS, AND OTHERS WHICH MIGHT BE SUPPLIED, IN OUR OPINION
EXPOSE THE ARBITRARY CHARACTER OF THE CLASSIFICATION AND THE CONSEQUENT
INVALIDITY OF THE EXACTION IMPOSED IN VIRTUE OF IT. 

THE SOLE FACT THAT A LOUISIANA OPERATOR HAS OPENED ADDITIONAL STORES
IN OTHER STATES OR IN CANADA OR NORWAY, AFFORDS, WE THINK, NO VALID
BASIS FOR IMPOSING UPON HIM AN ENORMOUSLY-INCREASED TAX FROM WHICH HIS
COMPETITORS, SIMILARLY CIRCUMSTANCED IN ALL OTHER RESPECTS, ARE
EXEMPT.  THE CLAIM THAT THEREBY THE BALANCE OF COMPETITIVE ADVANTAGE
HAS BEEN DISTURBED, IS SO FANCIFUL AS TO FURNISH NO BASIS FOR SUCH
LEGISLATION GROUNDED IN ANY POLICY OR OBJECT OF STATE TAXATION.  THE
COURT BELOW THOUGHT THAT TO CONSIDER THE NUMBER OF STORES OUTSIDE THE
STATE WAS COMPETENT FOR THE PURPOSE OF DETERMINING THE VALUE OF THE
PRIVILEGE OF OPERATING EACH STORE WITHIN THE STATE.  BUT THE FALLACY OF
THAT VIEW AS APPLIED TO THE PRESENT CASE IS DEMONSTRATED BY THE FACTS
AS FOUND BY THAT COURT - NAMELY, THAT OPERATIONS OF CHAIN STORES "VARY
GREATLY FROM SECTION TO SECTION AND FROM STATE TO STATE BECAUSE OF
DIFFERENCES IN LOCAL CONDITIONS, ECONOMIC AND OTHERWISE, FREIGHT RATES
ADDED TO COST, REMOTENESS FROM HEADQUARTERS AND EXECUTIVE MANAGEMENT,
INCREASE IN DIFFICULTY OF SUPERVISION, LOCAL COMPETITION AND OTHER
FACTORS.  CONDITIONS AS TO SALES AND PROFITS VARY GREATLY IN ALL
CLASSES OF STORES ACCORDING TO THE SECTION OF THE COUNTRY IN WHICH THEY
ARE LOCATED."  AN ATTEMPT TO FIX THE EXTENT OF THE COMPETITIVE
ADVANTAGE WHICH WILL INURE IN FAVOR OF A BUSINESS IN LOUISIANA OR THE
VALUE OF THE PRIVILEGE OF OPERATING IT UPON A BASIS SO SHIFTING AND
UNCERTAIN, SEEMS TO US AN UTTERLY FUTILE UNDERTAKING.  IT IS NOTHING
MORE THAN AN EFFORT TO REACH A CONCLUSION UPON AN ASSUMED MAJOR
PREMISE, WHERE THE MINOR PREMISE IS UNKNOWN. 

IN STEWART DRY GOODS CO. V. LEWIS, 294 U.S. 550, THIS COURT HELD
INVALID A STATE ACT IMPOSING A GRADUATED TAX MEASURED BY THE AMOUNT OF
GROSS SALES.  WE HELD THAT IT COULD NOT BE SUSTAINED AS AN EXCISE ON
THE PRIVILEGE OF MERCHANDISING, BECAUSE THERE WAS NO REASONABLE
RELATION BETWEEN THE AMOUNT OF THE TAX AND THE VALUE OF THE PRIVILEGE,
AND NO SUCH RELATION BETWEEN GROSS SALES AND NET PROFITS AS WOULD
JUSTIFY THE CLASSIFICATION.  THE TAX WAS DENOUNCED (P. 557) AS BEING
"WHIMSICAL AND ARBITRARY, AS MUCH SO AS WOULD BE A TAX ON TANGIBLE
PERSONAL PROPERTY, SAY CATTLE, STEPPED UP IN RATE ON EACH ADDITIONAL
ANIMAL OWNED BY THE TAXPAYER, OR A TAX ON LAND SIMILARLY GRADUATED
ACCORDING TO THE NUMBER OF PARCELS OWNED."  WE SAID (PP. 558-559) "THAT
THE GROSS SALES OF A MERCHANT DO NOT BEAR A CONSTANT RELATION TO HIS
NET PROFITS; THAT NET PROFITS VARY FROM YEAR TO YEAR IN THE SAME
ENTERPRISE; THAT DIVERSE KINDS OF MERCHANDISE YIELD DIFFERING RATIOS OF
PROFIT; AND THAT GROSS AND NET PROFITS VARY WITH THE CHARACTER OF THE
BUSINESS AS WELL AS ITS VOLUME."  IT APPEARED FROM THE TESTIMONY THAT
GREAT VARIATIONS EXISTED WITHIN EACH CLASS SELECTED FOR COMPARISON;
THAT IN SOME CLASSES, REPRESENTING A GREATER AMOUNT OF SALES, THERE WAS
A SMALLER NET PROFIT THAN IN OTHERS HAVING LESS AGGREGATE SALES.  TO
THE CONTENTION THAT THE TAX WAS A ROUGH AND READY METHOD OF TAXING
GAINS, LESS COMPLICATED AND MORE CONVENIENT OF ADMINISTRATION THAN AN
INCOME TAX, WE ANSWERED (P. 560), "THE ARGUMENT IS IN ESSENCE THAT IT
IS DIFFICULT TO BE JUST, AND EASY TO BE ARBITRARY.  IF THE COMMONWEALTH
DESIRES TO TAX INCOMES IT MUST TAKE THE TROUBLE EQUITABLY TO DISTRIBUTE
THE BURDEN OF THE IMPOST." 

THESE OBSERVATIONS APPLY TO THE CASE IN HAND; FOR ALTHOUGH THE TAXES
IMPOSED BY THE STATUTES INVOLVED ARE DIFFERENT, THE VICES ARE THE
SAME. 
..END :



















FIRST NATIONAL BANK V. BEACH, 301 U.S. 435 


NO. 621.  ARGUED APRIL 27, 28, 1937.  - DECIDED MAY 17, 1937.  - 86
F.(2D) 88, AFFIRMED. 


1.  SECTION 75 OF THE BANKRUPTCY ACT DEFINED A "FARMER" AS ANY
INDIVIDUAL WHO IS PERSONALLY BONA FIDE "ENGAGED PRIMARILY IN FARMING
OPERATIONS," OR "THE PRINCIPAL PART OF WHOSE INCOME IS DERIVED FROM
FARMING OPERATIONS."  HELD THAT THESE TWO BRANCHES OF THE DEFINITION
ARE NOT EQUIVALENTS BUT ARE USED IN CONTRAST, AND NEITHER IS A TERM OF
ART, BUT IN THEIR APPLICATION THE QUESTION OF FARMER VEL NON MUST BE
DETERMINED BY CONSIDERING AND APPRAISING ALL THE FACTS.  P. 438. 

2.  RESPONDENT OWNED A FARM, OF WHICH HE OCCUPIED A PART, LIVING
THERE AND DEVOTING MOST OF HIS TIME TO CULTIVATION AND OTHER FARM
ACTIVITIES, THE PRODUCTS OF WHICH WERE THE FOOD FOR HIMSELF AND HIS
DEPENDANTS; THE REMAINDER AND GREATER PORTION OF THE FARM HE LET OUT TO
TENANTS, WHO PUT IT TO GRAZING AND CULTIVATION, YIELDING HIM RENTALS
WHICH CONSTITUTED THE GREATER PART OF HIS INCOME.  HELD A "FARMER"
WITHIN THE MEANING OF SEC. 75 OF THE BANKRUPTCY ACT.  P. 439. 

FIRST NATIONAL BANK & TRUST CO., TRUSTEE, V. BEACH. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 300 U.S. 650, TO REVIEW THE REVERSAL OF A PETITION BY THE
PRESENT RESPONDENT FOR RELIEF UNDER SEC. 75 OF THE BANKRUPTCY ACT,
WHICH WAS OPPOSED BY THE PRESENT PETITIONER, A BANK HOLDING A MORTGAGE
ON HIS FARM. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS WHETHER RESPONDENT, WHO HAS FILED A PETITION UNDER
SEC. 75 OF THE BANKRUPTCY ACT (11 U.S.C. SEC. 203) FOR THE COMPOSITION
OR EXTENSION OF HIS DEBTS, IS A FARMER AS THERE DEFINED. 

THE FACTS ARE STIPULATED AS FOLLOWS:  BEACH WAS THE OWNER OF A FARM
WITH FIVE HOUSES AND A BARN ON IT WHERE HE HAD LIVED FROM HIS BIRTH,
OCCUPYING ONE OF THE HOUSES WITH HIS WIFE AND CHILDREN AS HIS
HOMESTEAD.  THE FARM HAD BEEN IN THE OWNERSHIP OF HIS FAMILY FOR TWO
CENTURIES AND OVER.  FOR A TIME HE HAD BEEN ENGAGED IN MERCANTILE
PURSUITS, BUT IN 1930 OWING TO HEAVY FINANCIAL LOSSES HE BEGAN WORKING
ON THE FARM AGAIN, AND HAS GIVEN MOST OF HIS TIME TO IT EVER SINCE. 
THE LAND HAD AN APPLE ORCHARD OF TWO HUNDRED TREES WHICH GAVE HIM 1500
BUSHELS OF CHOICE APPLES IN 1931.  HE GOT LITTLE OUT OF THE ORCHARD
FROM 1933 TO 1935, THE TREES DURING THOSE YEARS BEING AFFECTED BY A
BLIGHT.  HE SOLD PEARS FROM A FEW PEAR TREES, AND CULTIVATED A LARGE
GARDEN OF ABOUT ONE ACRE, PLANTING AND RAISING ALL KINDS OF VEGETABLES,
FRUITS AND FLOWERS, MORE THAN ENOUGH TO PROVIDE FOR HIS FAMILY.  HE
RAISED HAY AND SOLD IT, REPAIRED THE HOUSES, CLEANED OUT ONE OF THE
WELLS, LAID SEVERAL MILES OF STONE WALLS AND TWO MILES OF BARBED WIRE
FENCE, CARTED STONE FROM TIME TO TIME TO ENABLE HIM TO REBUILD HIS
FENCES, AND RAISED AND SOLD POTATOES.  HE WAS OCCUPIED PRINCIPALLY IN
RAISING POULTRY AND EGGS, HAVING TWO HUNDRED CHICKENS IN 1933, AND
ABOUT FIFTY FROM 1935 TO THE TIME OF THE TRIAL.  HE KEPT THREE SHEEP
FOR FOOD; ONE HORSE FOR CARTING AND HAULING; AND A MISCELLANEOUS
ASSORTMENT OF FARM TOOLS, NONE PURCHASED SINCE 1921.  HIS TOTAL INCOME
PER ANNUM FROM 1930 TO 1935 WAS $4,000, OF WHICH $2200 WAS DERIVED FROM
RENTING THREE-QUARTERS OF THE FARM TO VARIOUS PERSONS FOR GRAZING AND
CULTIVATION.  ONE OF THESE TENANTS CONDUCTED A DAIRY, AND BRED, GRAZED
AND MILKED A HERD OF COWS.  THE EARNINGS FROM THE SALE OF POULTRY AND
EGGS WERE $200, FROM THE SALE OF HAY $75, AND $25 FROM THE SALE OF
VEGETABLES AND FLOWERS.  RENTALS FROM OTHER REAL ESTATE, NOT CLAIMED TO
BE FARM PROPERTY, MADE UP THE REMAINDER OF HIS INCOME, $1500.  THE FARM
IN ITS ENTIRETY WAS SUBJECT TO A MORTGAGE OF $100,000, HELD BY A BANK,
AND NOW UNDER FORECLOSURE. 

WHEN SEC. 75 OF THE BANKRUPTCY ACT WAS ADOPTED IN MARCH, 1933,
SUBSECTION (R) DEFINED A FARMER AS FOLLOWS:  "FOR THE PURPOSE OF THIS
PERSONALLY BONA FIDE ENGAGED PRIMARILY IN FARMING OPERATIONS OR THE
PRINCIPAL PART OF WHOSE INCOME IS DERIVED FROM FARMING OPERATIONS, AND
INCLUDES THE PERSONAL REPRESENTATIVE OF A DECEASED FARMER; AND A FARMER
SHALL BE DEEMED A RESIDENT OF ANY COUNTY IN WHICH SUCH FARMING
OPERATIONS OCCUR."  ACT OF MARCH 3, 1933, C. 204, 47 STAT. 1467, 1470,
1473; 11 U.S.C. SEC. 203(R). 

THE DEFINITION WAS AMPLIFIED ON MAY 15, 1935 BY THE FOLLOWING
AMENDMENT:  "FOR THE PURPOSES OF THIS SECTION, SECTION 4(B), AND
PRIMARILY BONA FIDE PERSONALLY ENGAGED IN PRODUCING PRODUCTS OF THE
SOIL, BUT ALSO ANY INDIVIDUAL WHO IS PRIMARILY BONA FIDE PERSONALLY
ENGAGED IN DAIRY FARMING, THE PRODUCTION OF POULTRY OR LIVESTOCK, OR
THE PRODUCTION OF POULTRY PRODUCTS OR LIVESTOCK PRODUCTS IN THEIR
UNMANUFACTURED STATE, OR THE PRINCIPAL PART OF WHOSE INCOME IS DERIVED
FROM ANY ONE OR MORE OF THE FOREGOING OPERATIONS, AND INCLUDES THE
PERSONAL REPRESENTATIVE OF A DECEASED FARMER; AND A FARMER SHALL BE
DEEMED A RESIDENT OF ANY COUNTY IN WHICH SUCH OPERATIONS OCCUR."  ACT
OF MAY 15, 1935, C. 114, SEC. 3, 49 STAT. 246; 11 U.S.C. SEC. 203(R). 

A PETITION FOR RELIEF UNDER THE SECTION AS THUS AMENDED WAS FILED BY
THE DEBTOR ON NOVEMBER 14, 1935, AND WAS OPPOSED BY THE MORTGAGEE, THE
PETITIONER HERE.  THE DISTRICT COURT HELD THAT THE DEBTOR WAS NOT A
FARMER WITHIN THE MEANING OF THE STATUTE, AND SO DISMISSED THE
PROCEEDING.  AN APPEAL WAS ALLOWED BY THE COURT OF APPEALS FOR THE
SECOND CIRCUIT, WHICH REVERSED THE JUDGMENT OF DISMISSAL, ONE JUDGE
DISSENTING.  86 F.(2D) 88.  THE REVERSAL WENT UPON THE GROUND THAT THE
PRINCIPAL INCOME OF THE DEBTOR WAS DERIVED FROM FARMING OPERATIONS, IF
RENTS FROM THE FARM TENANTS ($2200) WERE INCLUDED IN THE RECKONING, AS
THE COURT HELD THAT THEY SHOULD BE.  WE GRANTED CERTIORARI, AN
IMPORTANT QUESTION BEING INVOLVED AS TO THE MEANING OF AN ACT OF
CONGRESS. 

THE ONLY EFFECT OF THE 1935 AMENDMENTS OF THE STATUTE, IN SO FAR AS
THEY HAVE TO DO WITH THE DEFINITION OF A FARMER, WAS TO MAKE IT CLEAR
THAT FARMING OPERATIONS INCLUDE DAIRY FARMING AND THE PRODUCTION OF
POULTRY AND LIVESTOCK PRODUCTS IN THEIR UNMANUFACTURED STATE AS WELL AS
THE CULTIVATION OF THE PRODUCTS OF THE SOIL.  THERE HAD BEEN DECISIONS
TO THE CONTRARY.  IN RE PALMA BROS., 8 F.SUPP.  920; IN RE STUBBS, 281
FED. 568; HOUSE REPORT, NO. 455, 74TH CONGRESS, 1ST SESSION, P. 2;
SENATE REPORT, NO. 498, 74TH CONGRESS, 1ST SESSION, P. 4.  FOR THE
PURPOSE OF THE CASE AT HAND THE AMENDMENTS MAY BE LAID ASIDE AND THE
SIMPLER PHRASEOLOGY OF THE SECTION AS IT STOOD AT THE BEGINNING MAY BE
ACCEPTED AS THE TEST.  WAS RESPONDENT A FARMER BECAUSE "PERSONALLY BONA
FIDE ENGAGED PRIMARILY IN FARMING OPERATIONS" OR BECAUSE "THE PRINCIPAL
PART OF HIS INCOME WAS DERIVED FROM FARMING OPERATIONS"? 

WE DO NOT TRY TO FIX THE MEANING OF EITHER OF THE TWO BRANCHES OF
THIS DEFINITION, CONSIDERED IN THE ABSTRACT.  THE TWO ARE NOT
EQUIVALENTS.  THEY WERE USED BY WAY OF CONTRAST.  OCCASIONS MUST HAVE
BEEN IN VIEW WHEN THE RECEIPT OF INCOME DERIVED FROM FARMING OPERATIONS
WOULD MAKE A FARMER OUT OF SOME ONE WHO PERSONALLY OR PRIMARILY WAS
ENGAGED IN DIFFERENT ACTIVITIES.  A CATALOGUE OF SUCH OCCASIONS MIGHT
ERR FOR EXCESS OR FOR DEFECT IF MADE UP IN ADVANCE.  HYPOTHETICAL
SITUATIONS ARE LAID BEFORE US, AND THE ARGUMENT IS PRESSED THAT THE
DEFINITION WILL BREED ABSURDITY IF APPLIED TO THIS ONE OF THEM OR
THAT.  WE REFUSE TO BE LED AWAY FROM THE LIMITATIONS OF THE CONCRETE
CASE.  THE WORDS "PRIMARILY ENGAGED," AS WE FIND THEM IN THE FIRST
BRANCH OF THE DEFINITION, DO NOT CONSTITUTE A TERM OF ART. THE WORDS
"INCOME DERIVED FROM FARMING OPERATIONS" DO NOT CONSTITUTE SUCH A
TERM.  IN EVERY CASE THE TOTALITY OF THE FACTS IS TO BE CONSIDERED AND
APPRAISED.  WE PASS TO THAT APPRAISAL HERE. 

1.  BEACH, THE RESPONDENT, MUST BE HELD, WHEN THE FACTS ARE VIEWED IN
COMBINATION, TO HAVE BEEN "PERSONALLY" AND "PRIMARILY" ENGAGED IN
FARMING OPERATIONS. 

HE WAS IN THAT BUSINESS OR IN NONE.  HE WAS EITHER A FARMER OR A MAN
OF LEISURE.  CF. IN RE GLICK, 26 F.(2D) 398, 400.  BUT THE STIPULATION
MAKES IT CLEAR THAT THIS LAST HE CERTAINLY WAS NOT.  HE WAS IN DIRECT
OR PERSONAL POSSESSION OF FORTY-EIGHT ACRES, ONE-FOURTH OF THE LARGE
FARM WHICH HAD BEEN IN HIS FAMILY FOR YEARS.  A SUBSTANTIAL PART OF
THIS ACREAGE HE CULTIVATED WITH HIS OWN LABOR, OR APPLIED, AGAIN WITH
HIS OWN LABOR, TO OTHER AGRICULTURAL USES.  HE DID THIS, NOT FOR
DIVERSION OR ONLY IN SPARE HOURS, BUT AS AN ENGROSSING OCCUPATION,
CONSUMING, IN THE WORDS OF THE STIPULATION, "THE MAJOR PORTION OF HIS
TIME."  THE PRODUCTS OF HIS TOIL WERE FOOD FOR HIM AND HIS DEPENDENTS,
AND THE FARMHOUSE WAS A HOME.  TRUE, THE MONEY RETURNS WERE SCANTY.  TO
SOME EXTENT THIS WAS SO BECAUSE OF THE BLIGHT WHICH FELL UPON HIS APPLE
ORCHARD IN 1932 OR LATER, CUTTING DOWN THE REVENUES YIELDED FROM THAT
SOURCE.  THE SCANTINESS OF THE YIELD MAY HAVE TURNED HIM INTO A
BANKRUPT, BUT IT DID NOT CHANGE HIS OCCUPATION.  ONE DOES NOT CEASE TO
BE A FARMER BECAUSE DROUGHT OR WIND OR PEST MAY HAVE RENDERED THE FARM
BARREN.  THE CRITICAL FACT IS THAT THE DEBTOR WORKED AN ACREAGE LARGE
ENOUGH TO COUNT, THAT HE DID NOT WORK AT ANYTHING ELSE, AND THAT HE
GAVE TO THIS WORK, WHETHER PROFITABLE OR UNPROFITABLE, "THE MAJOR
PORTION OF HIS TIME." 

2.  IF BEACH WAS A FARMER BECAUSE HE CULTIVATED A SUBSTANTIAL FARM,
HE DID NOT STEP INTO ANOTHER BUSINESS BY LEASING OTHER ACRES OF THE
TRACT TO TENANTS WHO WERE TO USE WHAT THEY HIRED FOR GRAZING OR
CULTIVATION AND OTHER FARMING OPERATIONS.  WE SHALL POINT OUT IN A
MOMENT THAT THE ACRES PERSONALLY CULTIVATED AND THOSE OCCUPIED BY
TENANTS ARE PHASES AND ASPECTS OF A UNITARY CALLING.  THE RESULT WILL
BE THE SAME, HOWEVER, THOUGH THE FARMING AND THE LEASING BE VIEWED AS
DISCONNECTED, AND NOT AS PARTS OF A COMPOSITE WHOLE.  IN THAT VIEW, THE
FARMING IS STILL THE BUSINESS; THE LEASES ARE THEN INVESTMENTS, MORE
PROFITABLE THAN THE BUSINESS, BUT LEAVING IT UNCHANGED.  A FARMER
REMAINS A FARMER, JUST AS A LAWYER REMAINS A LAWYER, THOUGH THE RETURNS
ON HIS INVESTMENTS, WHILE NOT ENOUGH TO KEEP HIM GOING, ARE LARGER,
NONE THE LESS, THAN THE PROFITS OF HIS LABOR. 

3.  THE PICTURE, HOWEVER, IS DISTORTED IF BEACH IS LOOKED UPON AS A
LANDLORD WITH RENTALS UNRELATED TO HIS PRIMARY VOCATION.  HIS RENTALS
LIKE HIS LABOR SMACKED OF THE SOIL, AND MADE HIM NOT LESS, BUT MORE A
FARMER THAN HE WOULD HAVE BEEN WITHOUT THEM.  HOW THE CASE WOULD STAND
IF HE HAD BEEN A MERCHANT OR A DOCTOR AND HAD LEASED A TRACT OF FARMING
LAND TO TENANTS, WE DO NOT HAVE TO SAY.  WHAT HAS HAPPENED HERE IS
DIFFERENT.  THE FARMING AND THE LEASING MUST BE VIEWED IN COMBINATION
IF WE ARE TO GAIN A TRUE PERSPECTIVE, THE TWO TIED TOGETHER AS
PRINCIPAL AND INCIDENT.  A SINGLE TRACT OF LAND BELONGING TO THE DEBTOR
HAS BEEN WORKED BY HIM IN PART, AND IN PART WORKED BY OTHERS TO WHOM A
INTO ANOTHER BUSINESS, HE HAS BEEN FAITHFUL TO THE OLD ONE IN THUS
DIVIDING UP THE TILLAGE.  TO GET A LIVING OUT OF THE LAND IN ONE WAY OR
ANOTHER IS THE THREAD OF COMMON PURPOSE THAT BINDS THE LABOR AND THE
LEASES, AND ENABLES US TO FIND IN THEM THE TOKENS OF THE SAME
VOCATION.  IN BRIEF THE MAN IS SEEN TO BE A FARMER BY EVERY TEST OF
COMMON SPEECH, THOUGH HIS INCOME HAS BEEN GARNERED IN RENTS AS WELL AS
PRODUCTS.  WE EMPHASIZE THE FACT AFRESH THAT THE WORDS OF THE STATUTE
TO WHICH MEANING IS TO BE GIVEN ARE NOT PHRASES OF ART WITH A
CHANGELESS CONNOTATION.  THEY HAVE A COLOR AND A CONTENT THAT MAY VARY
WITH THE SETTING.  CF. SURACE V. DANNA, 248 N.Y. 18, 21; 161 N.E. 315;
TOWNE V. EISNER, 245 U.S. 418, 425; INTERNATIONAL STEVEDORING CO. V.
HAVERTY, 272 U.S. 50.  IN THE SETTING OF THIS ENTERPRISE, THE TOTALITY
OF ITS CIRCUMSTANCES, THE ROOTS OF THE RESPONDENT'S INCOME GO DOWN INTO
THE SOIL. 

4.  CASES IN OTHER COURTS RELIED UPON BY THE PETITIONER AS EXCLUDING
THE RESPONDENT FROM THE CATEGORY OF FARMERS ARE CONSISTENT FOR THE MOST
PART WITH THE RULING NOW MADE WHEN THE OPINIONS ARE READ WITH DUE
RELATION TO THE FACTS. 

EITHER THE DEBTOR POSING AS A FARMER WAS ENGAGED AT THE SAME TIME IN
SOME OTHER LINE OF BUSINESS OR THE PLOTS IN CULTIVATION WERE TOO SMALL
TO MAKE A FARM.  SWIFT V. MOBLEY, 28 F.(2D) 610; IN RE SPENGLER, 238
FED. 862; IN RE MCMURRAY, 8 F.SUPP.  449; IN RE WEIS, 10 F.SUPP.  227. 

THE JUDGMENT IS AFFIRMED. 
..END :


















CINCINNATI SOAP CO. V. U.S., 301 U.S. 308 


NO. 659.  ARGUED APRIL 1, 2, 1937.  - DECIDED MAY 3, 1937.  - JUDGMENTS
AFFIRMED. 


PER POUND UPON THE FIRST DOMESTIC PROCESSING OF COCONUT OIL, AND
PROVIDES THAT ALL SUCH TAXES COLLECTED WITH RESPECT TO COCONUT OIL
WHOLLY OF PHILIPPINE PRODUCTION, ETC., "SHALL BE HELD AS A SEPARATE
FUND AND PAID TO THE TREASURY OF THE PHILIPPINE ISLANDS, BUT IF AT ANY
TIME THE PHILIPPINE GOVERNMENT PROVIDES BY ANY LAW FOR ANY SUBSIDY TO
BE PAID TO THE PRODUCERS OF COPRA, COCONUT OIL, OR ALLIED PRODUCTS, NO
FURTHER PAYMENTS TO THE PHILIPPINE TREASURY SHALL BE MADE UNDER THIS
SUBSECTION."  HELD: 

1.  THE IMPOSITION OF THE TAX IN ITSELF IS A VALID EXERCISE OF THE
TAXING POWER, CONSISTENT WITH THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.  P. 312. 

2.  A VALID TAX MAY BE BOUND TO A VALID APPROPRIATION OF THE MONEYS
SO REALIZED, IN THE SAME ACT OF CONGRESS.  P. 313. 

3.  WHETHER A TAX SERVES ANY OF THE PURPOSES ENUMERATED IN THE
CONSTITUTION, ART. I, SEC. 8, CL. 1,  - "TO PAY THE DEBTS AND PROVIDE
FOR THE COMMON DEFENCE AND GENERAL WELFARE OF THE UNITED STATES,"  - IS
A PRACTICAL QUESTION ADDRESSED TO THE LAW-MAKING POWER, WHOSE
CONCLUSION MUST BE ACCEPTED BY THE COURTS UNLESS PLAINLY WITHOUT
JUSTIFICATION.  P. 313. 

4.  OWING TO THE PECULIAR RELATION OF DEPENDENCY OF THE PHILIPPINE
ISLANDS AND THEIR INHABITANTS ON THE UNITED STATES, IT IS A MORAL
OBLIGATION OF THE UNITED STATES TO PROTECT, DEFEND AND PROVIDE FOR
THEIR GENERAL WELFARE.  P. 313. 

5.  THE TAX AND APPROPRIATION MAY BE SUSTAINED AS A DISCHARGE OF A
MORAL OBLIGATION AMOUNTING TO A "DEBT" WITHIN THE MEANING OF THE TAXING
CLAUSE OF THE CONSTITUTION.  P. 314. 

6.  CONGRESS, FROM THE BEGINNING, HAS ACTED UPON THE VIEW THAT THE
TERM "DEBTS" INCLUDES MORAL OBLIGATIONS.  ID. 

7.  QUAERE WHETHER THE TAX AND APPROPRIATION IN THE PRESENT INSTANCE
MIGHT NOT BE JUSTIFIED AS AN EXERCISE OF THE TAXING POWER TO PROVIDE,
IN A BROAD SENSE, FOR THE PUBLIC DEFENSE OR THE GENERAL WELFARE OF THE
UNITED STATES.  P. 315. 

8.  THE DETERMINATION OF CONGRESS TO RECOGNIZE THE MORAL OBLIGATION
OF THE NATION TO MAKE AN APPROPRIATION AS A REQUIREMENT OF JUSTICE AND
HONOR, IS OBVIOUSLY A MATTER OF POLICY AND DISCRETION NOT OPEN TO
JUDICIAL REVIEW, UNLESS IN CIRCUMSTANCES SUCH AS ARE NOT PRESENT IN
THIS CASE.  P. 317. 

9.  IT DOES NOT FOLLOW THAT BECAUSE A FEDERAL TAX LEVIED FOR THE
EXPRESS PURPOSE OF PAYING THE DEBTS OR PROVIDING FOR THE WELFARE OF A
STATE MIGHT BE INVALID, SUCH A TAX FOR THE USES OF A TERRITORY OR
DEPENDENCY, OVER WHICH THE UNITED STATES HAS PLENARY POWER, WOULD
LIKEWISE BE INVALID.  P. 317. 

10.  THE PASSAGE OF THE PHILIPPINE INDEPENDENCE ACT OF MARCH 24,
1934, AND THE ADOPTION AND APPROVAL OF THE CONSTITUTION OF THE
COMMONWEALTH OF THE PHILIPPINE ISLANDS, DID NOT WITHDRAW THE
SOVEREIGNTY OF THE UNITED STATES FROM THE ISLANDS, NOR MAKE THEM
FOREIGN TO THE UNITED STATES.  P. 319. 

11.  CONGRESS HAS POWER TO LEVY A TAX WITH THE COLLATERAL PURPOSE OF
PROTECTING INDUSTRIES OF THE UNITED STATES.  P. 320. 

12.  ASSUMING THE PRESENT TAX LEVIED FOR THAT PURPOSE, IT WAS FOR
CONGRESS TO DETERMINE WHETHER THERE WAS A MORAL DUTY TO OFFSET THE
BURDEN OF IT ON THE PHILIPPINE PRODUCTION BY AN EQUIVALENT
APPROPRIATION TO THE PHILIPPINE TREASURY.  P. 320. 

14.  THE PROVISION OF THE CONSTITUTION, ART. I, SEC. 9, CL. 7, THAT
"NO MONEY SHALL BE DRAWN FROM THE TREASURY BUT IN CONSEQUENCE OF
APPROPRIATIONS MADE BY LAW" WAS INTENDED AS A RESTRICTION UPON THE
DISBURSING AUTHORITY OF THE EXECUTIVE DEPARTMENT, AND IS WITHOUT
SIGNIFICANCE HERE.  IT MEANS SIMPLY THAT NO MONEY CAN BE PAID OUT OF
THE TREASURY UNLESS IT HAS BEEN APPROPRIATED BY AN ACT OF CONGRESS.  P.
321. 

15.  THE CONTENTION OF THE TAXPAYERS IN THIS CASE THAT THERE HAS BEEN
NO CONSTITUTIONAL APPROPRIATION OF THE PROCEEDS OF THE TAX, AND THAT
ANY ATTEMPTED APPROPRIATION IS BAD, BECAUSE THE PARTICULAR USES TO
WHICH THE APPROPRIATED MONEY IS TO BE PUT HAVE NOT BEEN SPECIFIED, IS
WITHOUT MERIT.  P. 321. 

16.  PAYMENT OF THE PROCEEDS OF THE TAX TO THE PHILIPPINE GOVERNMENT,
WITH NO DIRECTION AS TO THE EXPENDITURE THEREOF, WAS NOT AN
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER.  P. 321. 

17.  IN DEALING WITH THE TERRITORIES, POSSESSIONS AND DEPENDENCIES OF
THE UNITED STATES, THIS NATION HAS ALL THE POWERS OF OTHER SOVEREIGN
NATIONS, AND CONGRESS IN LEGISLATING IS NOT SUBJECT TO THE SAME
RESTRICTIONS WHICH ARE IMPOSED IN RESPECT OF LAWS FOR THE UNITED STATES
CONSIDERED AS A POLITICAL BODY OF STATES IN UNION.  P. 323. 

CINCINNATI SOAP CO. V. UNITED STATES.* 

*TOGETHER WITH NO. 687, HASKINS BROS. & CO. V. O'MALLEY, COLLECTOR OF
INTERNAL REVENUE.  CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
EIGHTH CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 300 U.S. 649, TO REVIEW TWO JUDGMENTS OF THE DISTRICT
COURTS SUSTAINING DEMURRERS TO THE PETITIONS FILED BY THE SOAP COMPANY
AND ANOTHER IN ACTIONS TO RECOVER MONEYS EXACTED AS TAXES.  THE CASES
HAD BEEN APPEALED TO THE CIRCUIT COURTS OF APPEALS, BUT HAD NOT BEEN
HEARD OR SUBMITTED WHEN THE WRITS OF CERTIORARI ISSUED. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

763, IMPOSES A TAX OF 3 CENTS PER POUND UPON THE FIRST DOMESTIC
PROCESSING OF COCONUT OIL, AND PROVIDES THAT ALL SUCH TAXES COLLECTED
WITH RESPECT TO COCONUT OIL WHOLLY OF PHILIPPINE PRODUCTION, ETC.,
"SHALL BE HELD AS A SEPARATE FUND AND PAID TO THE TREASURY OF THE
PHILIPPINE ISLANDS, BUT IF AT ANY TIME THE PHILIPPINE GOVERNMENT
PROVIDES BY ANY LAW FOR ANY SUBSIDY TO BE PAID TO THE PRODUCERS OF
COPRA, COCONUT OIL, OR ALLIED PRODUCTS, NO FURTHER PAYMENTS TO THE
PHILIPPINE TREASURY SHALL BE MADE UNDER THIS SUBSECTION." 

BOTH PETITIONERS ARE ENGAGED IN MANUFACTURING SOAP AND, AT TIMES
STATED IN THEIR PETITIONS, USED IN ITS MANUFACTURE LARGE QUANTITIES OF
COCONUT OIL WHOLLY THE PRODUCT OF THE PHILIPPINE ISLANDS.  IN PURSUANCE
OF SEC. 602 1/2, THEY MADE RETURNS AND PAID THE AMOUNT OF THE TAX AS
REQUIRED BY THAT SECTION.  SUBSEQUENTLY, EACH OF THEM FILED WITH THE
BUREAU OF INTERNAL REVENUE A CLAIM FOR THE REFUND OF THE TAX, ON THE
GROUND THAT THE IMPOSITION WAS NOT WITHIN THE CONSTITUTIONAL POWER OF
CONGRESS.  BOTH CLAIMS WERE DENIED, AND PETITIONS AT LAW WERE FILED IN
FEDERAL DISTRICT COURTS TO RECOVER THE SUMS PAID.  DEMURRERS WERE
INTERPOSED ATTACKING THE SUFFICIENCY OF THE PETITIONS, AND THESE
DEMURRERS WERE SUSTAINED BY THE TRIAL COURTS.  APPEALS WERE TAKEN TO
THE RESPECTIVE CIRCUIT COURTS OF APPEAL NAMED IN THE TITLE; AND WE
GRANTED WRITS OF CERTIORARI BEFORE A HEARING OR SUBMISSION IN THOSE
COURTS, BECAUSE OF THE IMPORTANCE TO THE PHILIPPINE ISLANDS OF AN EARLY
FINAL DECISION OF THE QUESTION. 

THE VALIDITY OF THE TAX IS ASSAILED BY PETITIONERS UPON A VARIETY OF
GROUNDS, DEVELOPED AT LENGTH IN THEIR RESPECTIVE BRIEFS AND BY THE ORAL
ARGUMENTS AT THE BAR.  SO FAR AS WE FIND IT NECESSARY TO CONSIDER THE
VARIOUS CONTENTIONS, THEY MAY BE STATED IN GENERAL TERMS AS FOLLOWS:
THAT THE TAX IS NOT IMPOSED FOR ANY PURPOSE CONTEMPLATED BY THE TAXING
CLAUSE OF SEC. 8, ART. I, OF THE FEDERAL CONSTITUTION - THAT IS TO SAY,
IT IS NOT IMPOSED TO PAY THE DEBTS OR PROVIDE FOR THE COMMON DEFENSE OR
GENERAL WELFARE OF THE UNITED STATES; THAT, ON THE CONTRARY, IT IS
IMPOSED FOR A PURELY LOCAL PURPOSE, IN VIOLATION OF THE TENTH
AMENDMENT; THAT THE EXACTION VIOLATES THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT, BECAUSE IT IS AN ARBITRARY EXACTION FROM ONE GROUP OF
PERSONS FOR THE EXCLUSIVE BENEFIT OF ANOTHER; THAT THE ACT DOES NOT
IMPOSE A TRUE TAX, BUT IS A REGULATORY MEASURE OUTSIDE THE FIELD OF
FEDERAL POWER; THAT IT VIOLATES CLAUSE 7, SEC. 9, OF ART. I OF THE
CONSTITUTION, WHICH PROVIDES THAT "NO MONEY SHALL BE DRAWN FROM THE
TREASURY, BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW"; THAT THE
PAYMENT IN BULK OF THE ENTIRE PROCEEDS OF THE TAX TO THE PHILIPPINES,
WITH NO DIRECTION AS TO THE EXPENDITURE THEREOF, CONSTITUTES AN
UNLAWFUL DELEGATION OF LEGISLATIVE POWER.  IN DEALING WITH THESE
CONTENTIONS, WE FIND IT CONVENIENT TO DO SO WITHOUT FOLLOWING THE
PRECISE ORDER IN WHICH THEY HAVE JUST BEEN STATED.  AND CERTAIN OF THEM
ARE SO INTERRELATED THAT THEY MAY BE JOINED FOR CONSIDERATION IN THE
SAME SUBDIVISION OF THE OPINION WHICH FOLLOWS. 

FIRST.  PLAINLY, THE IMPOSITION OF THE TAX IN ITSELF IS A VALID
EXERCISE OF THE TAXING POWER OF THE FEDERAL GOVERNMENT.  IT IS PURELY
AN EXCISE TAX UPON A MANUFACTURING PROCESS FOR REVENUE PURPOSES, AND IN
NO SENSE A REGULATION OF THE PROCESS ITSELF.  THE TENTH AMENDMENT IS
WITHOUT APPLICATION, SINCE THE POWERS OF THE SEVERAL STATES OVER LOCAL
AFFAIRS ARE NOT INVADED OR INVOLVED.  THIS IS DISCLOSED UPON THE FACE
OF THE ACT SO CLEARLY THAT DISCUSSION COULD NOT MAKE IT PLAINER. 
UNITED STATES V. BUTLER, 297 U.S. 1, RELIED UPON BY PETITIONER, IS NOT
IN POINT.  THERE, WE HELD THAT THE SOLE AIM OF THE STATUTE, AS SHOWN BY
ITS TERMS, WAS TO REGULATE A LOCAL SITUATION, A MATTER WHOLLY WITHIN
THE RESERVED POWERS OF THE STATES; AND MOREOVER THAT IT AMOUNTED TO A
NAKED TAKING OF THE PROPERTY OF ONE GROUP OF PERSONS FOR BESTOWAL UPON
ANOTHER GROUP.  THE CHILD LABOR TAX CASE, 259 U.S. 20, AND OTHER CASES
CITED, BEAR STILL MORE REMOTELY UPON THE CONTENTION.  IT IS ENOUGH TO
SAY THAT THE FEATURE OF THE PRESENT CASE WHICH DIFFERENTIATES IT FROM
ALL THOSE CITED IS THAT THE EXACTION HERE, BOTH IN FORM AND SUBSTANCE,
IS A TRUE TAX, IMPOSED, AS WE PRESENTLY SHALL SHOW, FOR A FEDERAL
CONSTITUTIONAL PURPOSE.  IN THAT VIEW THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT IS NOT INVOLVED. 

SECOND.  STANDING APART, THEREFORE, THE TAX IS UNASSAILABLE.  IT IS
SAID TO BE BAD BECAUSE IT IS EARMARKED AND DEVOTED FROM ITS INCEPTION
TO A SPECIFIC PURPOSE.  BUT IF THE TAX, QUA TAX, BE GOOD, AS WE HOLD IT
IS, AND THE PURPOSE SPECIFIED BE ONE WHICH WOULD SUSTAIN A SUBSEQUENT
AND SEPARATE APPROPRIATION MADE OUT OF THE GENERAL FUNDS OF THE
TREASURY, NEITHER IS MADE INVALID BY BEING BOUND TO THE OTHER IN THE
SAME ACT OF LEGISLATION.  THE ONLY CONCERN WHICH WE HAVE IN THAT ASPECT
OF THE MATTER IS TO DETERMINE WHETHER THE PURPOSE SPECIFIED IS ONE FOR
WHICH CONGRESS CAN MAKE AN APPROPRIATION WITHOUT VIOLATING THE
FUNDAMENTAL LAW.  IF CONGRESS, FOR REASONS DEEMED BY IT TO BE
SATISFACTORY, CHOSE TO ADOPT THE QUANTUM OF RECEIPTS FROM THIS
PARTICULAR TAX AS THE MEASURE OF THE APPROPRIATION, WE PERCEIVE NO
VALID BASIS FOR CHALLENGING ITS POWER TO DO SO. 

WE INQUIRE FIRST - IS THE PROPOSED APPROPRIATION TO THE PHILIPPINE
TREASURY FOR A CONSTITUTIONAL PURPOSE?  SINCE AN AFFIRMATIVE ANSWER TO
THAT QUESTION WILL ESTABLISH THE CONSTITUTIONAL PURPOSE OF THE TAX. 
THE PERTINENT TAXING CLAUSE PROVIDES IN GENERAL TERMS (ART. I, SEC. 8,
CL. 1) THAT TAXES MAY BE LAID "TO PAY THE DEBTS AND PROVIDE FOR THE
COMMON DEFENCE AND GENERAL WELFARE OF THE UNITED STATES."  PRIMARILY,
AND IN A VERY HIGH DEGREE, WHETHER A TAX SERVES ANY OF THESE PURPOSES
IS A PRACTICAL QUESTION ADDRESSED TO THE LAW-MAKING DEPARTMENT.  AND IT
WILL REQUIRE A VERY PLAIN CASE TO WARRANT THE COURTS IN SETTING ASIDE
THE CONCLUSION OF CONGRESS IN THAT REGARD.  COMPARE NICOL V. AMES, 173
U.S. 509, 514-516.  NEVERTHELESS, SUCH PLAIN CASES MAY EXIST; AND THE
QUESTION IS WHETHER THIS IS ONE OF THEM. 

THE PHILIPPINE ISLANDS AND THEIR INHABITANTS, FROM THE BEGINNING OF
OUR OCCUPATION, HAVE BORNE A PECULIAR RELATION TO THE UNITED STATES. 
THE ISLANDS CONSTITUTE A DEPENDENCY OVER WHICH THE UNITED STATES, FOR
MORE THAN A GENERATION, HAS HAD AND EXERCISED SUPREME POWER OF
LEGISLATION AND ADMINISTRATION, POSADAS V. NATIONAL CITY BANK, 296 U.S.
497, 502, A POWER LIMITED ONLY BY THE TERMS OF THE TREATY OF CESSION
AND THOSE PRINCIPLES OF THE CONSTITUTION WHICH BY THEIR NATURE ARE
INHERENTLY INVIOLABLE.  THE POSSESSION OF THIS WELL-NIGH ABSOLUTE POWER
OVER A DEPENDENT PEOPLE CARRIES WITH IT GREAT OBLIGATIONS, AS WAS
POINTED OUT BY MR. ROOT AS SECRETARY OF WAR IN 1899.  AFTER REFERRING
TO THE PRACTICALLY UNLIMITED POWER WHICH WE HAD OVER THE PHILIPPINES,
HE SAID: "I ASSUME, ALSO, THAT THE OBLIGATIONS CORRELATIVE TO THIS
GREAT POWER ARE OF THE HIGHEST CHARACTER, AND THAT IT IS OUR
UNQUESTIONED DUTY TO MAKE THE INTERESTS OF THE PEOPLE OVER WHOM WE
ASSERT SOVEREIGNTY THE FIRST AND CONTROLLING CONSIDERATION IN ALL
LEGISLATION AND ADMINISTRATION WHICH CONCERNS THEM, AND TO GIVE THEM,
TO THE GREATEST POSSIBLE EXTENT, INDIVIDUAL FREEDOM, SELF-GOVERNMENT IN
ACCORDANCE WITH THEIR CAPACITY, JUST AND EQUAL LAWS, AND OPPORTUNITY
FOR EDUCATION, FOR PROFITABLE INDUSTRY, AND FOR DEVELOPMENT IN
CIVILIZATION."  MILITARY AND COLONIAL POLICY OF THE UNITED STATES, 161
162. 

AMONG THESE CORRELATIVE DUTIES IS THE MORAL OBLIGATION TO PROTECT,
DEFEND, AND PROVIDE FOR THE GENERAL WELFARE OF, THE INHABITANTS.  AND
SUCH AN OBLIGATION WELL MAY REQUIRE THE APPROPRIATION AND EXPENDITURE
OF MONEY FROM THE NATIONAL PURSE - IN WHICH CASE THE OBLIGATION FAIRLY
COMES WITHIN THE TERM "DEBTS" AS USED IN THE TAXING CLAUSE.  UNITED
STATES V. REALTY CO., 163 U.S. 427, 440-441.  CONGRESS, FROM THE
BEGINNING OF ITS EXISTENCE, HAS ACCEPTED AND LEGISLATED UPON THAT VIEW
OF THE BROAD MEANING OF THE TERM.  IN INNUMERABLE INSTANCES, IT HAS
MADE APPROPRIATIONS TO RELIEVE NEEDS CAUSED BY EARTHQUAKES, FIRE, AND
OTHER EVENTS, NOT ONLY IN LOCALITIES WITHIN OR POSSESSED BY THE UNITED
STATES, BUT IN FOREIGN COUNTRIES AS WELL.  GOVERNMENT COUNSEL HAS
FURNISHED US AN IMPRESSIVE LIST OF APPROPRIATIONS OF THIS CHARACTER;
AND IN ADDITION HAS CALLED ATTENTION TO THE MANY INSTANCES OF
APPROPRIATIONS FOR THE SUPPORT AND WELFARE OF THE INDIANS, AND FOR THE
USES OF THE TERRITORIES.  LEGISLATION OF THIS CHARACTER HAS BEEN SO
LONG CONTINUED AND ITS VALIDITY SO LONG UNQUESTIONED THAT, AS WE SAID
IN UNITED STATES V. CURTISS-WRIGHT CORP., 299 U.S. 304, 322, 327-328,
"A LEGISLATIVE PRACTICE SUCH AS WE HAVE HERE, EVIDENCED NOT BY ONLY
OCCASIONAL INSTANCES, BUT MARKED BY THE MOVEMENT OF A STEADY STREAM FOR
A CENTURY AND A HALF OF TIME, GOES A LONG WAY IN THE DIRECTION OF
PROVING THE PRESENCE OF UNASSAILABLE GROUND FOR THE CONSTITUTIONALITY
OF THE PRACTICE, TO BE FOUND IN THE ORIGIN AND HISTORY OF THE POWER
INVOLVED, OR IN ITS NATURE, OR IN BOTH COMBINED." 

IT MAY BE THAT THE TAX AND THE APPROPRIATION OF THE PROCEEDS
THEREFROM IN THE PRESENT INSTANCE COULD BE JUSTIFIED AS AN EXERCISE OF
THE TAXING POWER TO PROVIDE, IN A BROAD SENSE, FOR THE PUBLIC DEFENSE
OR THE GENERAL WELFARE OF THE UNITED STATES.  WE DO NOT PAUSE TO
CONSIDER THAT VIEW; FOR PLAINLY, WE THINK, THE LAW MAY BE SUSTAINED AS
AN ACT IN DISCHARGE OF A HIGH MORAL OBLIGATION, AMOUNTING TO A "DEBT"
WITHIN THE MEANING OF THE CONSTITUTION AS IT ALWAYS HAS BEEN
PRACTICALLY CONSTRUED.  THE JUSTIFICATION FOR THAT CONCLUSION HAS BEEN
SO FULLY STATED BY THIS COURT IN THE CASE OF UNITED STATES V. REALTY
CO., SUPRA, THAT FURTHER CITATION BECOMES UNNECESSARY.  "UNDER THE
PROVISIONS OF THE CONSTITUTION, (ARTICLE 1, SECTION 8)," WE THERE SAID,
"CONGRESS HAS POWER TO LAY AND COLLECT TAXES, ETC., 'TO PAY THE DEBTS'
OF THE UNITED STATES.  HAVING POWER TO RAISE MONEY FOR THAT PURPOSE, IT
OF COURSE FOLLOWS THAT IT HAS POWER WHEN THE MONEY IS RAISED TO
APPROPRIATE IT TO THE SAME OBJECT.  WHAT ARE THE DEBTS OF THE UNITED
STATES WITHIN THE MEANING OF THIS CONSTITUTIONAL PROVISION?  IT IS
CONCEDED AND INDEED IT CANNOT BE QUESTIONED THAT THE DEBTS ARE NOT
LIMITED TO THOSE WHICH ARE EVIDENCED BY SOME WRITTEN OBLIGATION OR TO
THOSE WHICH ARE OTHERWISE OF A STRICTLY LEGAL CHARACTER.  THE TERM
'DEBTS' INCLUDES THOSE DEBTS OR CLAIMS WHICH REST UPON A MERELY
EQUITABLE OR HONORARY OBLIGATION, AND WHICH WOULD NOT BE RECOVERABLE IN
A COURT OF LAW IF EXISTING AGAINST AN INDIVIDUAL.  THE NATION, SPEAKING
BROADLY, OWES A 'DEBT' TO AN INDIVIDUAL WHEN HIS CLAIM GROWS OUT OF
GENERAL PRINCIPLES OF RIGHT AND JUSTICE; WHEN, IN OTHER WORDS, IT IS
BASED UPON CONSIDERATIONS OF A MORAL OR MERELY HONORARY NATURE, SUCH AS
ARE BINDING ON THE CONSCIENCE OR THE HONOR OF AN INDIVIDUAL, ALTHOUGH
THE DEBT COULD OBTAIN NO RECOGNITION IN A COURT OF LAW.  THE POWER OF
CONGRESS EXTENDS AT LEAST AS FAR AS THE RECOGNITION AND PAYMENT OF
CLAIMS AGAINST THE GOVERNMENT WHICH ARE THUS FOUNDED.  TO NO OTHER
BRANCH OF THE GOVERNMENT THAN CONGRESS COULD ANY APPLICATION BE
SUCCESSFULLY MADE ON THE PART OF THE OWNERS OF SUCH CLAIMS OR DEBTS FOR
THE PAYMENT THEREOF.  THEIR RECOGNITION DEPENDS SOLELY UPON CONGRESS,
AND WHETHER IT WILL RECOGNIZE CLAIMS THUS FOUNDED MUST BE LEFT TO THE
DISCRETION OF THAT BODY.  PAYMENTS TO INDIVIDUALS, NOT OF RIGHT OR OF A
MERELY LEGAL CLAIM, BUT PAYMENTS IN THE NATURE OF A GRATUITY, YET
HAVING SOME FEATURE OF MORAL OBLIGATION TO SUPPORT THEM, HAVE BEEN MADE
BY THE GOVERNMENT BY VIRTUE OF ACTS OF CONGRESS, APPROPRIATING THE
PUBLIC MONEY, EVER SINCE ITS FOUNDATION.  SOME OF THE ACTS WERE BASED
UPON CONSIDERATIONS OF PURE CHARITY.  A LONG LIST OF ACTS DIRECTING
PAYMENTS OF THE ABOVE GENERAL CHARACTER IS APPENDED TO THE BRIEF OF ONE
OF THE COUNSEL FOR THE DEFENDANTS IN ERROR.  THE ACTS ARE REFERRED TO
NOT FOR THE PURPOSE OF ASSERTING THEIR VALIDITY IN ALL CASES, BUT AS
EVIDENCE OF WHAT HAS BEEN THE PRACTICE OF CONGRESS SINCE THE ADOPTION
OF THE CONSTITUTION.  SEE, ALSO, AMONG OTHER CASES IN THIS COURT,
EMERSON V. HALL, 13 PET. 409; UNITED STATES V. PRICE, 116 U.S. 43;
WILLIAMS V. HEARD, 140 U.S. 529.  THE LAST CITED CASE AROSE UNDER AN
ACT OF CONGRESS IN RELATION TO THE ALABAMA CLAIMS." 

LATER DECISIONS OF THIS COURT HAVE FOLLOWED THAT VIEW.  UNITED STATES
V. COOK, 257 U.S. 523; MARION & R.V. RY. CO. V. UNITED STATES, 270 U.S.
280, 284.  THE DETERMINATION OF CONGRESS TO RECOGNIZE THE MORAL
OBLIGATION OF THE NATION TO MAKE AN APPROPRIATION AS A REQUIREMENT OF
JUSTICE AND HONOR, IS OBVIOUSLY A MATTER OF POLICY AND DISCRETION NOT
OPEN TO JUDICIAL REVIEW UNLESS IN CIRCUMSTANCES WHICH HERE WE ARE NOT
ABLE TO FIND.  UNITED STATES V. REALTY CO., SUPRA, P. 444.    IT DOES
NOT FOLLOW THAT BECAUSE A FEDERAL TAX LEVIED FOR THE EXPRESS PURPOSE OF
PAYING THE DEBTS OR PROVIDING FOR THE WELFARE OF A STATE MIGHT BE
INVALID (PASSENGER CASES, 7 HOW.  283, 446) THAT SUCH A TAX FOR THE
USES OF A TERRITORY OR DEPENDENCY WOULD LIKEWISE BE INVALID.  A STATE,
EXCEPT AS THE FEDERAL CONSTITUTION OTHERWISE REQUIRES, IS SUPREME AND
INDEPENDENT.  IT HAS ITS OWN GOVERNMENT, WITH FULL POWERS OF TAXATION
AND FULL POWER TO APPROPRIATE THE REVENUES DERIVED THEREFROM.  A
DEPENDENCY HAS NO GOVERNMENT BUT THAT OF THE UNITED STATES, EXCEPT IN
SO FAR AS THE UNITED STATES MAY PERMIT.  THE NATIONAL GOVERNMENT MAY DO
FOR ONE OF ITS DEPENDENCIES WHATEVER A STATE MIGHT DO FOR ITSELF OR ONE
OF ITS POLITICAL SUBDIVISIONS, SINCE OVER SUCH A DEPENDENCY THE NATION
POSSESSES THE SOVEREIGN POWERS OF THE GENERAL GOVERNMENT PLUS THE
POWERS OF A LOCAL OR A STATE GOVERNMENT IN ALL CASES WHERE LEGISLATION
IS POSSIBLE.  COMPARE STOUTENBURGH V. HENNICK, 129 U.S. 141, 147;
NATIONAL BANK V. COUNTY OF YANKTON, 101 U.S. 129, 133; MORMON CHURCH V.
UNITED STATES, 136 U.S. 1, 42; UTTER V. FRANKLIN, 172 U.S. 416, 423. 
TO SAY THAT THE FEDERAL GOVERNMENT, WITH SUCH PRACTICALLY UNLIMITED
POWERS OF LEGISLATION IN RESPECT OF A DEPENDENCY, IS YET POWERLESS TO
APPROPRIATE MONEY FOR ITS NEEDS, IS TO DENY - WHAT THE FOREGOING
CONSIDERATIONS FORBID US TO DENY - THAT THE UNITED STATES HAS, IN THAT
REGARD, THE EQUIVALENT POWER OF A STATE IN COMPARABLE CIRCUMSTANCES. 

THIRD.  IN THE EXERCISE OF ITS PLENARY POWERS, THE UNITED STATES
BEGAN BY GOVERNING THE PHILIPPINE ISLANDS UNDER THE WAR POWER. 
FOLLOWING THE TREATY OF PARIS, A CONDITION OF ARMED INSURRECTION
PERSISTED FOR SOME TIME.  IN 1900, MILITARY GOVERNMENT WAS SUCCEEDED BY
A SPECIES OF EXECUTIVE GOVERNMENT.  THE SPOONER AMENDMENT TO THE ARMY
APPROPRIATION BILL OF MARCH 2, 1901, C. 803, 31 STAT. 895, 910,
PROVIDED THAT "ALL MILITARY, CIVIL, AND JUDICIAL POWERS NECESSARY TO
GOVERN THE PHILIPPINE ISLANDS  ...  SHALL, UNTIL OTHERWISE PROVIDED BY
CONGRESS, BE VESTED IN SUCH PERSON AND PERSONS AND SHALL BE EXERCISED
IN SUCH MANNER AS THE PRESIDENT OF THE UNITED STATES SHALL DIRECT, FOR
THE ESTABLISHMENT OF CIVIL GOVERNMENT AND FOR MAINTAINING AND
PROTECTING THE INHABITANTS OF SAID ISLANDS IN THE FREE ENJOYMENT OF
THEIR LIBERTY, PROPERTY, AND RELIGION." 

THIS WAS FOLLOWED, MARCH 5, 1901, BY A CABLE FROM THE SECRETARY OF
WAR TO THE PHILIPPINE COMMISSION CONTAINING THE FOLLOWING LACONIC
ORDER, "UNTIL FURTHER ORDERS GOVERNMENT WILL CONTINUE UNDER EXISTING
INSTRUCTIONS AND ORDERS."  REPORT, SECRETARY OF WAR, 1901, P. 54.  THE
COMPREHENSIVE SPOONER AMENDMENT, AND THESE INSTRUCTIONS AND ORDERS,
VIRTUALLY CONSTITUTED FOR MANY MONTHS THE CHARTER OF GOVERNMENT FOR THE
PHILIPPINE ISLANDS.  IN 1902, CONGRESS PROVIDED FOR A COMPLETE SYSTEM
OF CIVIL GOVERNMENT UNDER THE ORIGINAL PHILIPPINE ORGANIC ACT.  BY
DEGREES, THE ACTIVE POWERS OF THE DEPENDENCY HAVE BEEN ENLARGED, AND
THOSE OF THE FEDERAL GOVERNMENT DECREASED.  BUT THE AUTHORITY WHICH
CONFERRED ADDITIONAL POWER MIGHT AT ANY TIME HAVE WITHDRAWN IT.  THIS
BRIEF RESUME DEMONSTRATES BOTH THE COMPLETENESS AND FLEXIBILITY OF THE
NATIONAL POWER OVER THE PHILIPPINES, AND THE HIGH CHARACTER OF THE
MORAL OBLIGATIONS WHICH THE POSSESSION OF SUCH POWER CORRELATIVELY
IMPOSES.  WITH THE EXTENSION OF POWER TO THE ISLANDS, OUR MORAL
OBLIGATIONS MAY HAVE GROWN LESS; BUT WHETHER, OR TO WHAT EXTENT, THIS
HAS BEEN THE CASE IS A QUESTION FOR THE DETERMINATION OF THE POLITICAL
DEPARTMENTS OF THE GOVERNMENT. 

BUT IT IS CONTENDED THAT THE PASSAGE OF THE PHILIPPINE INDEPENDENCE
ACT OF MARCH 24, 1934, C. 84, 48 STAT. 456, AND THE ADOPTION AND
APPROVAL OF A CONSTITUTION FOR THE COMMONWEALTH OF THE PHILIPPINE
ISLANDS HAVE CREATED A DIFFERENT SITUATION; AND THAT SINCE THEN,
WHATEVER MAY HAVE BEEN THE CASE BEFORE, THE UNITED STATES HAS BEEN
UNDER NO DUTY TO MAKE ANY FINANCIAL CONTRIBUTION TO THE ISLANDS. 
UNDOUBTEDLY, THESE ACTS HAVE BROUGHT ABOUT A PROFOUND CHANGE IN THE
STATUS OF THE ISLANDS AND IN THEIR RELATIONS TO THE UNITED STATES; BUT
THE SOVEREIGNTY OF THE UNITED STATES HAS NOT BEEN, AND, FOR A LONG
TIME, MAY NOT BE, FINALLY WITHDRAWN.  SO FAR AS THE UNITED STATES IS
CONCERNED, THE PHILIPPINE ISLANDS ARE NOT YET FOREIGN TERRITORY.  BY
EXPRESS PROVISION OF THE INDEPENDENCE ACT, WE STILL RETAIN POWERS WITH
RESPECT TO OUR TRADE RELATIONS WITH THE ISLANDS, WITH CERTAIN
EXCEPTIONS SET FORTH PARTICULARLY IN THE ACT.  WE RETAIN POWERS WITH
RESPECT TO THEIR FINANCIAL OPERATIONS AND THEIR CURRENCY; AND WE
CONTINUE TO CONTROL THEIR FOREIGN RELATIONS.  THE POWER OF REVIEW BY
THIS COURT OVER PHILIPPINE CASES, AS NOW PROVIDED BY LAW, IS NOT ONLY
CONTINUED, BUT IS EXTENDED TO ALL CASES INVOLVING THE CONSTITUTION OF
THE COMMONWEALTH OF THE PHILIPPINE ISLANDS. 

THUS, WHILE THE POWER OF THE UNITED STATES HAS BEEN MODIFIED, IT HAS
NOT BEEN ABOLISHED.  MORAL RESPONSIBILITIES WELL MAY ACCOMPANY THE
PROCESS OF SEPARATION FROM THIS COUNTRY; AND, INDEED, THEY MAY HAVE
BEEN INTENSIFIED BY THE NEW AND PERPLEXING PROBLEMS WHICH THE
PHILIPPINE PEOPLE NOW WILL BE CALLED UPON TO MEET AS ONE OF ITS
RESULTS.  THE EXISTENCE AND CHARACTER OF THE CONSEQUENT OBLIGATIONS AND
THE EXTENT OF THE RELIEF, IF ANY, WHICH SHOULD BE AFFORDED BY THE
UNITED STATES IN RESPECT OF THEM, ARE MATTERS, NOT FOR JUDICIAL BUT FOR
CONGRESSIONAL CONSIDERATION AND DETERMINATION. 

IT IS NOT IMPROBABLE THAT A FAILURE TO EXERCISE CONTROL OVER IMPORTS
FROM THE PHILIPPINES WOULD INJURIOUSLY AFFECT THE INDUSTRIES OF THIS
COUNTRY; AND, ON THE OTHER HAND, AN EXERCISE OF THE POWER TO TAX
IMPORTS MIGHT PROVE INJURIOUS TO THE PEOPLE OF THE ISLANDS.  CONGRESS,
IN PASSING THE LEGISLATION HERE UNDER CONSIDERATION, IS NOT FORBIDDEN
TO BALANCE THESE RESPECTIVE PROBABILITIES.  THE TAX ITSELF, IT IS SAID,
WAS IMPOSED FOR THE PURPOSE OF PROTECTING CERTAIN INDUSTRIES IN THIS
COUNTRY; AND IT IS CHALLENGED ON THAT GROUND.  THAT CONGRESS HAS POWER
TO LEVY A TAX WITH THE COLLATERAL PURPOSE OF THEREBY PROTECTING THE
INDUSTRIES OF THE UNITED STATES IS NO LONGER OPEN TO DOUBT.  HAMPTON &
CO. V. UNITED STATES, 276 U.S. 394, 411.  BUT, IN EXERCISING THE POWER
HERE WITH THAT PURPOSE, CONGRESS MAY HAVE CONCLUDED THAT IT WOULD
THEREBY IMPOSE A HARDSHIP UPON THE PHILIPPINES WHICH IT WAS THE MORAL
DUTY OF CONGRESS TO REDRESS SO FAR AS POSSIBLE.  IN THAT SITUATION, WE
SEE NO CONSTITUTIONAL OBJECTION TO A DISCHARGE OF THE DUTY BY THE
APPROPRIATION OF AN AMOUNT EQUIVALENT TO THE TAX IN ORDER TO OFFSET THE
ANTICIPATED BURDEN.  CERTAINLY, THIS COURT CANNOT JUDICIALLY DECLARE
THAT JUSTICE AND FAIR DEALING IN RESPECT OF A PEOPLE, NOT YET
COMPLETELY INDEPENDENT OF OUR AUTHORITY, DOES NOT WARRANT SUCH ACTION. 

NOR DO WE SEE ANY OBJECTION TO THE PLAN BECAUSE THE PAYMENT OF THE
FUNDS IS SUBJECT TO THE CONDITION THAT THE PHILIPPINE GOVERNMENT SHALL
NOT PROVIDE FOR ANY SUBSIDY TO BE PAID TO THE PHILIPPINE PRODUCERS OF
COCONUT OIL AND THE OTHER PRODUCTS NAMED IN SEC. 602 1/2 OF THE ACT. 
IT IS PERFECTLY PLAIN THAT SINCE CONGRESS MAY LEVY THE TAX WITH THE
COLLATERAL PURPOSE OF PROTECTING THE INDUSTRIES OF THIS COUNTRY, IT MAY
IN APPROPRIATING THE PROCEEDS PUT SUCH RESTRICTION UPON THEIR USE AS
WILL PREVENT THE PURPOSE FROM BEING NULLIFIED.  THIS, WE THINK, IS THE
AIM AND THE EFFECT OF THE PROVISO. 

FOURTH.  THE CONTENTION THAT THERE HAS BEEN NO CONSTITUTIONAL
APPROPRIATION, OR THAT ANY ATTEMPTED APPROPRIATION IS BAD, BECAUSE THE
PARTICULAR USES TO WHICH THE APPROPRIATED MONEY IS TO BE PUT HAVE NOT
BEEN SPECIFIED, IS WITHOUT MERIT.  THE PROVISION OF THE CONSTITUTION
(CL. 7, SEC. 9, ART. I) THAT "NO MONEY SHALL BE DRAWN FROM THE
TREASURY, BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW" WAS
INTENDED AS A RESTRICTION UPON THE DISBURSING AUTHORITY OF THE
EXECUTIVE DEPARTMENT, AND IS WITHOUT SIGNIFICANCE HERE.  IT MEANS
SIMPLY THAT NO MONEY CAN BE PAID OUT OF THE TREASURY UNLESS IT HAS BEEN
APPROPRIATED BY AN ACT OF CONGRESS.  REESIDE V. WALKER, 11 HOW.  272,
291; 2 STORY ON THE CONSTITUTION (4TH ED.), SECS. 1348, 1349; 1
WILLOUGHBY ON THE CONSTITUTION, SEC. 63, P. 105.  WE DEEM IT
UNNECESSARY TO ELABORATE THE POINT.  THE PETITIONS FOR CERTIORARI,
FILED IN JANUARY OF THE PRESENT YEAR, INFORM US THAT NONE OF THE
PROCEEDS OF THE TAX IN QUESTION HAS BEEN TRANSMITTED TO THE PHILIPPINE
TREASURY.  EVIDENTLY THE MONEYS IN THE FORM OF A TRUST FUND, AS THE
GOVERNMENT ASSERTS, ARE STILL IN THE TREASURY OF THE UNITED STATES.  IF
CONGRESS HAS NOT MADE AN APPROPRIATION, IT MAY STILL DO SO (HEAD MONEY
CASES, 112 U.S. 580, 599-600); AND, ALL OTHER CONSIDERATIONS ASIDE, THE
INTERJECTION OF THE QUESTION INTO THE PRESENT CASES IS PREMATURE. 

THE VALIDITY OF THE ACT DISPOSING OF THE TAX IS ALSO ATTACKED AS
CONSTITUTING AN UNLAWFUL DELEGATION OF LEGISLATIVE POWER.  THAT
CONGRESS HAS WIDE DISCRETION IN THE MATTER OF PRESCRIBING DETAILS OF
EXPENDITURES FOR WHICH IT APPROPRIATES MUST, OF COURSE, BE PLAIN. 
APPROPRIATION AND OTHER ACTS OF CONGRESS ARE REPLETE WITH INSTANCES OF
GENERAL APPROPRIATIONS OF LARGE AMOUNTS, TO BE ALLOTTED AND EXPENDED AS
DIRECTED BY DESIGNATED GOVERNMENT AGENCIES.  A STRIKING AND PERTINENT
EXAMPLE IS AFFORDED BY THE ACT OF JUNE 17, 1902, C. 1093, 32 STAT. 388,
WHERE ALL MONEYS RECEIVED FROM THE SALE AND DISPOSAL OF PUBLIC LANDS IN
A LARGE NUMBER OF STATES AND TERRITORIES ARE SET ASIDE AS A SPECIAL
FUND TO BE EXPENDED FOR THE RECLAMATION OF ARID AND SEMI-ARID LANDS
WITHIN THOSE STATES AND TERRITORIES.  THE EXPENDITURES ARE TO BE MADE
UNDER THE DIRECTION OF THE SECRETARY OF THE INTERIOR UPON SUCH PROJECTS
AS HE MAY DETERMINE TO BE PRACTICABLE AND ADVISABLE.  THE
CONSTITUTIONALITY OF THIS DELEGATION OF AUTHORITY HAS NEVER BEEN
SERIOUSLY QUESTIONED.  SEE UNITED STATES V. HANSON, 167 FED. 881, 884
885.  IN THE PRESENT CASE, THE DISPOSITION OF THE PROCEEDS OF THE TAX
FINDS PRECEDENT IN MANY PREVIOUS ACTS OF CONGRESS PROVIDING FOR
PAYMENTS INTO THE PHILIPPINE TREASURY.* 

*ACT OF MARCH 8, 1902, C. 140, 32 STAT. 54; ACT OF AUGUST 5, 1909, C.
6, 36 STAT. 11, 84-85; ACT OF OCTOBER 3, 1913, C. 16, 38 STAT. 114,
193; ACT OF SEPTEMBER 21, 1922, C. 356, 42 STAT. 858, 935; ACT OF JUNE
17, 1930, C. 497, 46 STAT. 590, 686. 

BUT ALL THIS ASIDE, THE IMPORTANT POINT IS THAT CONGRESS WAS HERE
DEALING WITH A DEPENDENCY FOR WHICH IT HAD PROVIDED A COMPLETE SYSTEM
OF GOVERNMENT TO ADMINISTER THE AFFAIRS OF A POPULATION FOR WHOSE
WELFARE THE UNITED STATES WAS UNDER A HIGH DEGREE OF MORAL
RESPONSIBILITY, AS WE ALREADY HAVE SEEN.  THE PROCEEDS OF THE TAX UNDER
CONSIDERATION ARE TO BE PAID INTO THE TREASURY OF A GOVERNMENT WHICH
CONGRESS ITSELF THUS CREATED, TO BE EXPENDED BY THAT GOVERNMENT, EXCEPT
AS THE ACT OTHERWISE DIRECTS, IN ACCORDANCE WITH ITS JUDGMENT AS TO
SPECIFIC NECESSITIES.  THE CONGRESSIONAL POWER OF DELEGATION TO SUCH A
LOCAL GOVERNMENT IS AND MUST BE AS COMPREHENSIVE AS THE NEEDS.  COMPARE
UNITED STATES V. HEINSZEN & CO., 206 U.S. 370, 384-385.  IN DEALING
WITH THE TERRITORIES, POSSESSIONS AND DEPENDENCIES OF THE UNITED
STATES, THIS NATION HAS ALL THE POWERS OF OTHER SOVEREIGN NATIONS, AND
CONGRESS IN LEGISLATING IS NOT SUBJECT TO THE SAME RESTRICTIONS WHICH
ARE IMPOSED IN RESPECT OF LAWS FOR THE UNITED STATES CONSIDERED AS A
POLITICAL BODY OF STATES IN UNION.  DORR V. UNITED STATES, 195 U.S.
138, 140, 142. 

CONGRESS HAS POWER TO CREATE A LOCAL LEGISLATURE FOR THE PHILIPPINES;
AND IT HAS DONE SO. CONGRESS HAS POWER TO AUTHORIZE THE LEGISLATURE TO
IMPOSE TAXES FOR ALL THE LAWFUL NEEDS OF THE ISLANDS, AND TO
APPROPRIATE THE PROCEEDS FOR SUCH USES AND IN SUCH AMOUNTS AS THE
LEGISLATURE MAY DETERMINE (COMPARE LEITENSDORFER V. WEBB, 20 HOW.  176,
182); AND THIS IT HAS DONE.  CONGRESS HAS POWER TO APPROPRIATE THE
MONEYS HERE IN QUESTION, AND CAUSE THEM TO BE PAID FROM THE NATIONAL
TREASURY INTO THE TREASURY OF THE PHILIPPINE ISLANDS; AND FOR THIS IT
HAS PROVIDED.  IT WOULD RESULT IN A STRANGE ANOMALY NOW TO HOLD THAT
CONGRESS HAD POWER TO DEVOLVE UPON THE PHILIPPINE GOVERNMENT THE
AUTHORITY TO APPROPRIATE REVENUE DERIVED FROM LOCAL TAXATION AS THE
GOVERNMENT SAW FIT, BUT THAT CONGRESS WAS WITHOUT POWER TO CONFER
SIMILAR AUTHORITY IN RESPECT OF MONEYS WHICH LAWFULLY WILL COME INTO
THE PHILIPPINE TREASURY FROM THE TREASURY OF THE UNITED STATES OR FROM
OTHER SOURCES APART FROM TAXATION.  IT IS TRUE, AS ALREADY APPEARS,
THAT THE USES TO WHICH THE MONEY IS TO BE PUT ARE NOT SPECIFIED.  BUT
IN ALL INSTANCES WHERE FUNDS SHALL COME INTO THE PHILIPPINE TREASURY,
WE MAY INDULGE THE PRESUMPTION, IN FAVOR OF A RESPONSIBLE AND DULY
CONSTITUTED LEGISLATIVE BODY, THAT THE FUNDS WILL BE APPROPRIATED FOR
PUBLIC PURPOSES AND NOT FOR PRIVATE USES. 

WHETHER THE PAYMENT TO THE PHILIPPINES OF THE LARGE SUMS OF MONEY
WHICH WILL FLOW FROM THIS TAX IS UNWARRANTED IN FACT; WHETHER THE
PRESENT OR PROSPECTIVE NEEDS OF THE ISLANDS REQUIRE IT; AND OTHER
QUERIES DIRECTLY OR INDIRECTLY CHALLENGING THE WISDOM OR NECESSITY OF
THE CONGRESSIONAL ACTION, ARE ALL MATTERS, AS WE REPEATEDLY HAVE
POINTED OUT, WITH WHICH THE COURTS HAVE NOTHING TO DO.  WE FIND THE
LEGISLATION TO BE FREE FROM CONSTITUTIONAL INFIRMITY; AND THERE BOTH
OUR POWER AND RESPONSIBILITY END.  JUDGMENTS AFFIRMED. 
..END :

















UNITED STATES V. BELMONT, 301 U.S. 324 


NO. 532.  ARGUED MARCH 4, 1937.  - DECIDED MAY 3, 1937.  - 85 F.(2D)
542, REVERSED. 


1.  A DECREE OF THE SOVIET GOVERNMENT DISSOLVED A RUSSIAN CORPORATION
AND EXPROPRIATED ALL OF ITS ASSETS, INCLUDING A DEPOSIT ACCOUNT WITH A
BANK IN NEW YORK.  SUBSEQUENTLY THE PRESIDENT OF THE UNITED STATES
RECOGNIZED, AND ESTABLISHED DIPLOMATIC RELATIONS WITH, THE SOVIET
GOVERNMENT, AND FOR THE PURPOSE OF BRINGING ABOUT A FINAL SETTLEMENT OF
CLAIMS AND COUNTERCLAIMS BETWEEN THAT GOVERNMENT AND THE UNITED STATES,
IT WAS THEREUPON AGREED, AMONG OTHER THINGS, THAT THE SOVIET GOVERNMENT
WOULD TAKE NO STEPS TO ENFORCE CLAIMS AGAINST AMERICAN NATIONALS, BUT
ALL SUCH CLAIMS, INCLUDING THE DEPOSIT ACCOUNT, WERE ASSIGNED TO THE
UNITED STATES WITH THE UNDERSTANDING THAT THE SOVIET GOVERNMENT WOULD
BE NOTIFIED OF ALL AMOUNTS SO REALIZED BY THE UNITED STATES.  HELD
THAT, AS BETWEEN THE UNITED STATES AND THE DEPOSITARY, THE DEPOSIT, IN
VIRTUE OF THE INTERNATIONAL COMPACT, BELONGED TO THE UNITED STATES,
WHATEVER THE POLICY OF THE STATE OF NEW YORK TOUCHING THE ENFORCEMENT
OF ACTS OF CONFISCATION.  P. 327. 

2.  JUDICIAL NOTICE IS TAKEN OF THE FACTS THAT COINCIDENTALLY WITH
THE ASSIGNMENT THE PRESIDENT RECOGNIZED THE SOVIET GOVERNMENT AND
NORMAL DIPLOMATIC RELATIONS WERE ESTABLISHED BETWEEN THE TWO
GOVERNMENTS, FOLLOWED BY AN EXCHANGE OF AMBASSADORS.  P. 330. 

3.  THE EFFECT OF THIS WAS TO VALIDATE, SO FAR AS THIS COUNTRY IS
CONCERNED, ALL ACTS OF THE SOVIET GOVERNMENT HERE INVOLVED FROM THE
COMMENCEMENT OF ITS EXISTENCE.  P. 330. 

4.  THE INTERNATIONAL COMPACT WAS WITHIN THE COMPETENCY OF THE
PRESIDENT, AND PARTICIPATION BY THE SENATE WAS UNNECESSARY.  P. 330. 

5.  THE EXTERNAL POWERS OF THE UNITED STATES ARE TO BE EXERCISED
WITHOUT REGARD TO STATE LAWS OR POLICIES.  P. 331. 

6.  WHAT ANOTHER COUNTRY HAS DONE IN THE WAY OF TAKING OVER PROPERTY
OF ITS NATIONALS, AND ESPECIALLY OF ITS CORPORATIONS, IS NOT
QUESTIONABLE IN OUR COURTS.  P. 332. 

UNITED STATES V. BELMONT ET AL., EXECUTORS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 299 U.S. 531, TO REVIEW THE AFFIRMANCE OF A JUDGMENT OF
THE DISTRICT COURT DISMISSING THE COMPLAINT IN AN ACTION BY THE UNITED
STATES TO RECOVER FROM EXECUTORS A SUM OF MONEY WHICH HAD BEEN
DEPOSITED WITH THEIR DECEDENT BY A RUSSIAN CORPORATION AND ASSIGNED BY
THE SOVIET GOVERNMENT, AFTER EXPROPRIATION, TO THE UNITED STATES. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION AT LAW BROUGHT BY PETITIONER AGAINST RESPONDENTS IN
A FEDERAL DISTRICT COURT TO RECOVER A SUM OF MONEY DEPOSITED BY A
RUSSIAN CORPORATION (PETROGRAD METAL WORKS) WITH AUGUST BELMONT, A
PRIVATE BANKER DOING BUSINESS IN NEW YORK CITY UNDER THE NAME OF AUGUST
BELMONT & CO. AUGUST BELMONT DIED IN 1924; AND RESPONDENTS ARE THE DULY
APPOINTED EXECUTORS OF HIS WILL.  A MOTION TO DISMISS THE COMPLAINT FOR
FAILURE TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION WAS
SUSTAINED BY THE DISTRICT COURT, AND ITS JUDGMENT WAS AFFIRMED BY THE
COURT BELOW.  85 F.(2D) 542.  THE FACTS ALLEGED, SO FAR AS NECESSARY TO
BE STATED, FOLLOW. 

THE CORPORATION HAD DEPOSITED WITH BELMONT, PRIOR TO 1918, THE SUM OF
MONEY WHICH PETITIONER SEEKS TO RECOVER.  IN 1918, THE SOVIET
GOVERNMENT DULY ENACTED A DECREE BY WHICH IT DISSOLVED, TERMINATED AND
LIQUIDATED THE CORPORATION (TOGETHER WITH OTHERS), AND NATIONALIZED AND
APPROPRIATED ALL OF ITS PROPERTY AND ASSETS OF EVERY KIND AND WHEREVER
SITUATED, INCLUDING THE DEPOSIT ACCOUNT WITH BELMONT.  AS A RESULT, THE
DEPOSIT BECAME THE PROPERTY OF THE SOVIET GOVERNMENT, AND SO REMAINED
UNTIL NOVEMBER 16, 1933, AT WHICH TIME THE SOVIET GOVERNMENT RELEASED
AND ASSIGNED TO PETITIONER ALL AMOUNTS DUE TO THAT GOVERNMENT FROM
AMERICAN NATIONALS, INCLUDING THE DEPOSIT ACCOUNT OF THE CORPORATION
WITH BELMONT.  RESPONDENTS FAILED AND REFUSED TO PAY THE AMOUNT UPON
DEMAND DULY MADE BY PETITIONER. 

THE ASSIGNMENT WAS EFFECTED BY AN EXCHANGE OF DIPLOMATIC
CORRESPONDENCE BETWEEN THE SOVIET GOVERNMENT AND THE UNITED STATES. 
THE PURPOSE WAS TO BRING ABOUT A FINAL SETTLEMENT OF THE CLAIMS AND
COUNTERCLAIMS BETWEEN THE SOVIET GOVERNMENT AND THE UNITED STATES; AND
IT WAS AGREED THAT THE SOVIET GOVERNMENT WOULD TAKE NO STEPS TO ENFORCE
CLAIMS AGAINST AMERICAN NATIONALS; BUT ALL SUCH CLAIMS WERE RELEASED
AND ASSIGNED TO THE UNITED STATES, WITH THE UNDERSTANDING THAT THE
SOVIET GOVERNMENT WAS TO BE DULY NOTIFIED OF ALL AMOUNTS REALIZED BY
THE UNITED STATES FROM SUCH RELEASE AND ASSIGNMENT.  THE ASSIGNMENT AND
REQUIREMENT FOR NOTICE ARE PARTS OF THE LARGER PLAN TO BRING ABOUT A
SETTLEMENT OF THE RIVAL CLAIMS OF THE HIGH CONTRACTING PARTIES.  THE
CONTINUING AND DEFINITE INTEREST OF THE SOVIET GOVERNMENT IN THE
COLLECTION OF ASSIGNED CLAIMS IS EVIDENT; AND THE CASE, THEREFORE,
PRESENTS A QUESTION OF PUBLIC CONCERN, THE DETERMINATION OF WHICH WELL
MIGHT INVOLVE THE GOOD FAITH OF THE UNITED STATES IN THE EYES OF A
FOREIGN GOVERNMENT.  THE COURT BELOW HELD THAT THE ASSIGNMENT THUS
EFFECTED EMBRACED THE CLAIM HERE IN QUESTION; AND WITH THAT WE AGREE. 

THAT COURT, HOWEVER, TOOK THE VIEW THAT THE SITUS OF THE BANK DEPOSIT
WAS WITHIN THE STATE OF NEW YORK; THAT IN NO SENSE COULD IT BE REGARDED
AS AN INTANGIBLE PROPERTY RIGHT WITHIN SOVIET TERRITORY; AND THAT THE
NATIONALIZATION DECREE, IF ENFORCED, WOULD PUT INTO EFFECT AN ACT OF
CONFISCATION.  AND IT HELD THAT A JUDGMENT FOR THE UNITED STATES COULD
NOT BE HAD, BECAUSE, IN VIEW OF THAT RESULT, IT WOULD BE CONTRARY TO
THE CONTROLLING PUBLIC POLICY OF THE STATE OF NEW YORK.  THE FURTHER
CONTENTION IS MADE BY RESPONDENTS THAT THE PUBLIC POLICY OF THE UNITED
STATES WOULD LIKEWISE BE INFRINGED BY SUCH A JUDGMENT.  THE TWO
QUESTIONS THUS PRESENTED ARE THE ONLY ONES NECESSARY TO BE CONSIDERED. 

FIRST.  WE DO NOT PAUSE TO INQUIRE WHETHER IN FACT THERE WAS ANY
POLICY OF THE STATE OF NEW YORK TO BE INFRINGED, SINCE WE ARE OF
OPINION THAT NO STATE POLICY CAN PREVAIL AGAINST THE INTERNATIONAL
COMPACT HERE INVOLVED. 

THIS COURT HAS HELD, UNDERHILL V. HERNANDEZ, 168 U.S. 250, THAT EVERY
SOVEREIGN STATE MUST RECOGNIZE THE INDEPENDENCE OF EVERY OTHER
SOVEREIGN STATE; AND THAT THE COURTS OF ONE WILL NOT SIT IN JUDGMENT
UPON THE ACTS OF THE GOVERNMENT OF ANOTHER, DONE WITHIN ITS OWN
TERRITORY. 

THAT GENERAL PRINCIPLE WAS APPLIED IN OETJEN V. CENTRAL LEATHER CO.,
246 U.S. 297, TO A CASE WHERE AN ACTION IN REPLEVIN HAD BEEN BROUGHT IN
A NEW JERSEY STATE COURT TO RECOVER A CONSIGNMENT OF HIDES PURCHASED IN
MEXICO FROM GENERAL VILLA.  THE TITLE OF THE PURCHASER WAS ASSAILED ON
THE GROUND THAT VILLA HAD CONFISCATED THE HIDES.  VILLA, IT APPEARED,
HAD SEIZED THE HIDES WHILE CONDUCTING INDEPENDENT OPERATIONS UNDER THE
CARRANZA GOVERNMENT, WHICH AT THE TIME OF THE SEIZURE HAD MADE MUCH
PROGRESS IN ITS REVOLUTION IN MEXICO.  THE GOVERNMENT OF THE UNITED
STATES, AFTER THE TRIAL OF THE CASE IN THE STATE COURT, HAD RECOGNIZED
THE GOVERNMENT OF CARRANZA, FIRST AS THE DE FACTO GOVERNMENT OF THE
REPUBLIC OF MEXICO, AND LATER AS THE GOVERNMENT DE JURE.  THIS COURT
HELD THAT THE CONDUCT OF FOREIGN RELATIONS WAS COMMITTED BY THE
CONSTITUTION TO THE POLITICAL DEPARTMENTS OF THE GOVERNMENT, AND THE
PROPRIETY OF WHAT MAY BE DONE IN THE EXERCISE OF THIS POLITICAL POWER
WAS NOT SUBJECT TO JUDICIAL INQUIRY OR DECISION; THAT WHO IS THE
SOVEREIGN OF A TERRITORY IS NOT A JUDICIAL QUESTION, BUT ONE THE
DETERMINATION OF WHICH BY THE POLITICAL DEPARTMENTS CONCLUSIVELY BINDS
THE COURTS; AND THAT RECOGNITION BY THESE DEPARTMENTS IS RETROACTIVE
AND VALIDATES ALL ACTIONS AND CONDUCT OF THE GOVERNMENT SO RECOGNIZED
FROM THE COMMENCEMENT OF ITS EXISTENCE.  "THE PRINCIPLE," WE SAID, P.
303, "THAT THE CONDUCT OF ONE INDEPENDENT GOVERNMENT CANNOT BE
SUCCESSFULLY QUESTIONED IN THE COURTS OF ANOTHER IS AS APPLICABLE TO A
CASE INVOLVING THE TITLE TO PROPERTY BROUGHT WITHIN THE CUSTODY OF A
COURT, SUCH AS WE HAVE HERE, AS IT WAS HELD TO BE TO THE CASES CITED,
IN WHICH CLAIMS FOR DAMAGES WERE BASED UPON ACTS DONE IN A FOREIGN
COUNTRY, FOR IT RESTS AT LAST UPON THE HIGHEST CONSIDERATIONS OF
INTERNATIONAL COMITY AND EXPEDIENCY.  TO PERMIT THE VALIDITY OF THE
ACTS OF ONE SOVEREIGN STATE TO BE REEXAMINED AND PERHAPS CONDEMNED BY
THE COURTS OF ANOTHER WOULD VERY CERTAINLY 'IMPERIL THE AMICABLE
RELATIONS BETWEEN GOVERNMENTS AND VEX THE PEACE OF NATIONS.'"  RICAUD
V. AMERICAN METAL CO., 246 U.S. 304, 308-309, 310, IS TO THE SAME
EFFECT. 

IN A. M. LUTHER V. JAMES SAGOR & CO., L.R. (1921) 3 K.B. 532, THE
ENGLISH COURT OF APPEAL EXPRESSLY APPROVED AND FOLLOWED OUR DECISION IN
THE OETJEN CASE.  THE ENGLISH CASE INVOLVED THAT PART OF THE SAME
DECREE OF THE SOVIET GOVERNMENT HERE UNDER CONSIDERATION WHICH DECLARED
CERTAIN PRIVATE WOODWORKING ESTABLISHMENTS TO BE THE PROPERTY OF THE
REPUBLIC.  UNDER THAT DECREE THE GOVERNMENT SEIZED PLAINTIFF'S FACTORY
IN RUSSIA TOGETHER WITH A STOCK OF WOOD THEREIN.  AGENTS OF THE
REPUBLIC SOLD A QUANTITY OF THE STOCK SO SEIZED TO THE DEFENDANTS, WHO
IMPORTED IT INTO ENGLAND.  THEREAFTER, THE BRITISH GOVERNMENT
RECOGNIZED THE SOVIET GOVERNMENT AS THE DE FACTO GOVERNMENT OF RUSSIA. 
UPON THESE FACTS, THE COURT HELD THAT, THE BRITISH GOVERNMENT HAVING
THUS RECOGNIZED THE SOVIET GOVERNMENT, EXISTING AT A DATE BEFORE THE
DECREE IN QUESTION, THE VALIDITY OF THAT DECREE AND THE SALE OF THE
WOOD TO THE DEFENDANTS COULD NOT BE IMPUGNED, AND GAVE JUDGMENT FOR
DEFENDANTS ACCORDINGLY.  THE COURT REGARDED THE DECREE AS ONE OF
CONFISCATION, BUT WAS UNABLE TO SEE (BANKES, L.J., P. 546) HOW THE
COURTS COULD TREAT THE DECREE "OTHERWISE THAN AS THE EXPRESSION BY THE
DE FACTO GOVERNMENT OF A CIVILIZED COUNTRY OF A POLICY WHICH IT
CONSIDERED TO BE IN THE BEST INTEREST OF THAT COUNTRY.  IT MUST BE
QUITE IMMATERIAL FOR PRESENT PURPOSES THAT THE SAME VIEWS ARE NOT
ENTERTAINED BY THE GOVERNMENT OF THIS COUNTRY, ARE REPUDIATED BY THE
VAST MAJORITY OF ITS CITIZENS, AND ARE NOT RECOGNIZED BY OUR LAWS." 
LORD JUSTICE SCRUTTON, IN HIS OPINION, DISCUSSES (PP. 557-559) THE
CONTENTION THAT THE COURTS SHOULD REFUSE TO RECOGNIZE THE DECREE AND
THE TITLES DERIVED UNDER IT AS CONFISCATORY AND UNJUST, AND CONCLUDES
THAT THE QUESTION IS ONE NOT FOR THE JUDGES BUT FOR THE ACTION OF THE
SOVEREIGN THROUGH HIS MINISTERS.  "I DO NOT FEEL ABLE," HE SAID, "TO
COME TO THE CONCLUSION THAT THE LEGISLATION OF A STATE RECOGNIZED BY MY
SOVEREIGN AS AN INDEPENDENT SOVEREIGN STATE IS SO CONTRARY TO MORAL
PRINCIPLE THAT THE JUDGES OUGHT NOT TO RECOGNIZE IT.  THE
RESPONSIBILITY FOR RECOGNITION OR NONRECOGNITION WITH THE CONSEQUENCES
OF EACH RESTS ON THE POLITICAL ADVISERS OF THE SOVEREIGN AND NOT ON THE
JUDGES."  FURTHER CITATION OF AUTHORITY SEEMS UNNECESSARY. 

WE TAKE JUDICIAL NOTICE OF THE FACT THAT COINCIDENT WITH THE
ASSIGNMENT SET FORTH IN THE COMPLAINT, THE PRESIDENT RECOGNIZED THE
SOVIET GOVERNMENT, AND NORMAL DIPLOMATIC RELATIONS WERE ESTABLISHED
BETWEEN THAT GOVERNMENT AND THE GOVERNMENT OF THE UNITED STATES,
FOLLOWED BY AN EXCHANGE OF AMBASSADORS.  THE EFFECT OF THIS WAS TO
VALIDATE, SO FAR AS THIS COUNTRY IS CONCERNED, ALL ACTS OF THE SOVIET
GOVERNMENT HERE INVOLVED FROM THE COMMENCEMENT OF ITS EXISTENCE.  THE
RECOGNITION, ESTABLISHMENT OF DIPLOMATIC RELATIONS, THE ASSIGNMENT, AND
AGREEMENTS WITH RESPECT THERETO, WERE ALL PARTS OF ONE TRANSACTION,
RESULTING IN AN INTERNATIONAL COMPACT BETWEEN THE TWO GOVERNMENTS. 
THAT THE NEGOTIATIONS, ACCEPTANCE OF THE ASSIGNMENT AND AGREEMENTS AND
UNDERSTANDINGS IN RESPECT THEREOF WERE WITHIN THE COMPETENCE OF THE
PRESIDENT MAY NOT BE DOUBTED.  GOVERNMENTAL POWER OVER INTERNAL AFFAIRS
IS DISTRIBUTED BETWEEN THE NATIONAL GOVERNMENT AND THE SEVERAL STATES. 
GOVERNMENTAL POWER OVER EXTERNAL AFFAIRS IS NOT DISTRIBUTED, BUT IS
VESTED EXCLUSIVELY IN THE NATIONAL GOVERNMENT.  AND IN RESPECT OF WHAT
WAS DONE HERE, THE EXECUTIVE HAD AUTHORITY TO SPEAK AS THE SOLE ORGAN
OF THAT GOVERNMENT.  THE ASSIGNMENT AND THE AGREEMENTS IN CONNECTION
THEREWITH DID NOT, AS IN THE CASE OF TREATIES, AS THAT TERM IS USED IN
THE TREATY MAKING CLAUSE OF THE CONSTITUTION (ART. II, SEC. 2), REQUIRE
THE ADVICE AND CONSENT OF THE SENATE. 

A TREATY SIGNIFIES "A COMPACT MADE BETWEEN TWO OR MORE INDEPENDENT
NATIONS WITH A VIEW TO THE PUBLIC WELFARE."  ALTMAN & CO. V. UNITED
STATES, 224 U.S. 583, 600.  BUT AN INTERNATIONAL COMPACT, AS THIS WAS,
IS NOT ALWAYS A TREATY WHICH REQUIRES THE PARTICIPATION OF THE SENATE. 
THERE ARE MANY SUCH COMPACTS, OF WHICH A PROTOCOL, A MODUS VIVENDI, A
POSTAL CONVENTION, AND AGREEMENTS LIKE THAT NOW UNDER CONSIDERATION ARE
ILLUSTRATIONS.  SEE 5 MOORE, INT. LAW DIGEST, 210-221.  THE DISTINCTION
WAS POINTED OUT BY THIS COURT IN THE ALTMAN CASE, SUPRA, WHICH AROSE
UNDER SEC. 3 OF THE TARIFF ACT OF 1897, AUTHORIZING THE PRESIDENT TO
CONCLUDE COMMERCIAL AGREEMENTS WITH FOREIGN COUNTRIES IN CERTAIN
SPECIFIED MATTERS.  WE HELD THAT ALTHOUGH THIS MIGHT NOT BE A TREATY
REQUIRING RATIFICATION BY THE SENATE, IT WAS A COMPACT NEGOTIATED AND
PROCLAIMED UNDER THE AUTHORITY OF THE PRESIDENT, AND AS SUCH WAS A
"TREATY" WITHIN THE MEANING OF THE CIRCUIT COURT OF APPEALS ACT, THE
CONSTRUCTION OF WHICH MIGHT BE REVIEWED UPON DIRECT APPEAL TO THIS
COURT. 

PLAINLY, THE EXTERNAL POWERS OF THE UNITED STATES ARE TO BE EXERCISED
WITHOUT REGARD TO STATE LAWS OR POLICIES.  THE SUPREMACY OF A TREATY IN
THIS RESPECT HAS BEEN RECOGNIZED FROM THE BEGINNING.  MR. MADISON, IN
THE VIRGINIA CONVENTION, SAID THAT IF A TREATY DOES NOT SUPERSEDE
EXISTING STATE LAWS, AS FAR AS THEY CONTRAVENE ITS OPERATION, THE
TREATY WOULD BE INEFFECTIVE.  "TO COUNTERACT IT BY THE SUPREMACY OF THE
STATE LAWS, WOULD BRING ON THE UNION THE JUST CHARGE OF NATIONAL
PERFIDY, AND INVOLVE US IN WAR."  3 ELLIOT'S DEBATES 515.  AND SEE WARE
V. HYLTON, 3 DALL.  199, 236-237.  AND WHILE THIS RULE IN RESPECT OF
TREATIES IS ESTABLISHED BY THE EXPRESS LANGUAGE OF CL. 2, ART. VI, OF
THE CONSTITUTION, THE SAME RULE WOULD RESULT IN THE CASE OF ALL
INTERNATIONAL COMPACTS AND AGREEMENTS FROM THE VERY FACT THAT COMPLETE
POWER OVER INTERNATIONAL AFFAIRS IS IN THE NATIONAL GOVERNMENT AND IS
NOT AND CANNOT BE SUBJECT TO ANY CURTAILMENT OR INTERFERENCE ON THE
PART OF THE SEVERAL STATES.  COMPARE UNITED STATES V. CURTISS-WRIGHT
EXPORT CORP., 299 U.S. 304, 316, ET SEQ. IN RESPECT OF ALL
INTERNATIONAL NEGOTIATIONS AND COMPACTS, AND IN RESPECT OF OUR FOREIGN
RELATIONS GENERALLY, STATE LINES DISAPPEAR.  AS TO SUCH PURPOSES THE
STATE OF NEW YORK DOES NOT EXIST.  WITHIN THE FIELD OF ITS POWERS,
WHATEVER THE UNITED STATES RIGHTFULLY UNDERTAKES, IT NECESSARILY HAS
WARRANT TO CONSUMMATE.  AND WHEN JUDICIAL AUTHORITY IS INVOKED IN AID
OF SUCH CONSUMMATION, STATE CONSTITUTIONS, STATE LAWS, AND STATE
POLICIES ARE IRRELEVANT TO THE INQUIRY AND DECISION.  IT IS
INCONCEIVABLE THAT ANY OF THEM CAN BE INTERPOSED AS AN OBSTACLE TO THE
EFFECTIVE OPERATION OF A FEDERAL CONSTITUTIONAL POWER.  CF. MISSOURI V.
HOLLAND, 252 U.S. 416; ASAKURA V. SEATTLE, 265 U.S. 332, 341. 

SECOND.  THE PUBLIC POLICY OF THE UNITED STATES RELIED UPON AS A BAR
TO THE ACTION IS THAT DECLARED BY THE CONSTITUTION, NAMELY, THAT
PRIVATE PROPERTY SHALL NOT BE TAKEN WITHOUT JUST COMPENSATION.  BUT THE
ANSWER IS THAT OUR CONSTITUTION, LAWS AND POLICIES HAVE NO
EXTRATERRITORIAL OPERATION, UNLESS IN RESPECT OF OUR OWN CITIZENS. 
COMPARE UNITED STATES V. CURTISS-WRIGHT EXPORT CORP., SUPRA, AT P.
318.  WHAT ANOTHER COUNTRY HAS DONE IN THE WAY OF TAKING OVER PROPERTY
OF ITS NATIONALS, AND ESPECIALLY OF ITS CORPORATIONS, IS NOT A MATTER
FOR JUDICIAL CONSIDERATION HERE.  SUCH NATIONALS MUST LOOK TO THEIR OWN
GOVERNMENT FOR ANY REDRESS TO WHICH THEY MAY BE ENTITLED.  SO FAR AS
THE RECORD SHOWS, ONLY THE RIGHTS OF THE RUSSIAN CORPORATION HAVE BEEN
AFFECTED BY WHAT HAS BEEN DONE; AND IT WILL BE TIME ENOUGH TO CONSIDER
THE RIGHTS OF OUR NATIONALS WHEN, IF EVER, BY PROPER JUDICIAL
PROCEEDING, IT SHALL BE MADE TO APPEAR THAT THEY ARE SO AFFECTED AS TO
ENTITLE THEM TO JUDICIAL RELIEF.  THE SUBSTANTIVE RIGHT TO THE MONEYS,
AS NOW DISCLOSED, BECAME VESTED IN THE SOVIET GOVERNMENT AS THE
SUCCESSOR TO THE CORPORATION; AND THIS RIGHT THAT GOVERNMENT HAS PASSED
TO THE UNITED STATES.  IT DOES NOT APPEAR THAT RESPONDENTS HAVE ANY
INTEREST IN THE MATTER BEYOND THAT OF A CUSTODIAN.  THUS FAR NO
QUESTION UNDER THE FIFTH AMENDEMNT IS INVOLVED. 

IT RESULTS THAT THE COMPLAINT STATES A CAUSE OF ACTION AND THAT THE
JUDGMENT OF THE COURT BELOW TO THE CONTRARY IS ERRONEOUS.  IN SO
HOLDING, WE DEAL ONLY WITH THE CASE AS NOW PRESENTED AND WITH THE
PARTIES NOW BEFORE US.  WE DO NOT CONSIDER THE STATUS OF ADVERSE
CLAIMS, IF THERE BE ANY, OF OTHERS NOT PARTIES TO THIS ACTION.  AND
NOTHING WE HAVE SAID IS TO BE CONSTRUED AS FORECLOSING THE ASSERTION OF
ANY SUCH CLAIM TO THE FUND INVOLVED, BY INTERVENTION OR OTHER
APPROPRIATE PROCEEDING.  WE DECIDE ONLY THAT THE COMPLAINT ALLEGES
FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION AGAINST THE
RESPONDENTS.  JUDGMENT REVERSED. 

MR. JUSTICE STONE, CONCURRING. 

I AGREE WITH THE RESULT, BUT I AM UNABLE TO FOLLOW THE PATH BY WHICH
IT IS REACHED.  UPON THE RECORD BEFORE US THERE IS, I THINK, NO
QUESTION OF REEXAMINING THE VALIDITY OF ACTS OF A FOREIGN STATE, AND NO
QUESTION OF THE UNITED STATES' DECLARING AND ENFORCING A POLICY
INCONSISTENT WITH ONE THAT THE STATE OF NEW YORK MIGHT OTHERWISE ADOPT
IN CONFORMITY TO ITS OWN LAWS AND THE CONSTITUTION. 

THE UNITED STATES, BY AGREEMENT WITH THE SOVIET GOVERNMENT, HAS
ACQUIRED AN ASSIGNMENT OF ALL THE RIGHTS OF THE LATTER IN A CHOSE IN
ACTION, AGAINST AN AMERICAN CITIZEN, FORMERLY BELONGING TO A RUSSIAN
NATIONAL, AND CONFISCATED BY DECREE OF THE SOVIET GOVERNMENT.  IF THE
SUBJECT OF THE TRANSFER WERE A CHATTEL BELONGING TO AN AMERICAN, BUT
LOCATED IN RUSSIA, WE MAY ASSUME THAT THE VALIDITY OF THE SEIZURE WOULD
BE RECOGNIZED HERE, OETJEN V. CENTRAL LEATHER CO., 246 U.S. 297; RICAUD
V. AMERICAN METAL CO., 246 U.S. 304, 308-310; SALIMOFF & CO. V.
STANDARD OIL CO., 262 N.Y. 220; 186 N.E. 679.  SIMILARLY, THE
CONFISCATION OF THE PRESENT CLAIM, BEING LAWFUL WHERE MADE, IS UPON
FAMILIAR PRINCIPLES TO BE REGARDED AS EFFECTIVE IN NEW YORK, EXCEPT IN
SO FAR AS THAT STATE, BY REASON OF THE PRESENCE OF THE DEBTOR THERE,
MAY ADOPT AND ENFORCE A POLICY BASED UPON NON-RECOGNITION OF THE
TRANSFER. 

BUT THIS COURT HAS OFTEN RECOGNIZED THAT A STATE MAY REFUSE TO GIVE
EFFECT TO A TRANSFER, MADE ELSEWHERE, OF PROPERTY WHICH IS WITHIN ITS
OWN TERRITORIAL LIMITS, IF THE TRANSFER IS IN CONFLICT WITH ITS PUBLIC
POLICY.  GREEN V. VAN BUSKIRK, 5 WALL.  307, 311-312; HERVEY V. RHODE
ISLAND LOCOMOTIVE WORKS, 93 U.S. 664; SECURITY TRUST CO. V. DODD, MEAD
& CO., 173 U.S. 624; CLARK V. WILLIARD, 292 U.S. 112, 122; CLARK V.
WILLIARD, 294 U.S. 211.  IT IS LIKEWISE FREE TO DISREGARD THE TRANSFER
WHERE THE SUBJECT OF IT IS A CHOSE IN ACTION DUE FROM A DEBTOR WITHIN
THE STATE TO A FOREIGN CREDITOR, ESPECIALLY WHERE, AS IN THE PRESENT
CASE, THE DEBTOR'S ONLY OBLIGATION IS TO PAY WITHIN THE STATE, ON
DEMAND.  HARRISON V. STERRY, 5 CRANCH 289; DISCONTO GESELLSCHAFT V.
UMBREIT, 208 U.S. 570; BARTH V. BACKUS, 140 N.Y. 230; 35 N.E. 425;
VLADIKAVKAZSKY RY. CO. V. NEW YORK TRUST CO., 263 N.Y. 369, 378-379;
189 N.E. 456.  THE CHOSE IN ACTION IS SO FAR WITHIN THE CONTROL OF THE
STATE AS TO BE REGARDED AS LOCATED THERE FOR MANY PURPOSES.  WYMAN V.
HALSTEAD, 109 U.S. 654, 656; CHICAGO, R.I. & P. RY. CO. V. STURM, 174
U.S. 710; HARRIS V. BALK, 198 U.S. 215; PENNINGTON V. FOURTH NATIONAL
BANK, 243 U.S. 269; SECURITY SAVINGS BANK V. CALIFORNIA, 263 U.S. 282,
285; CORN EXCHANGE BANK V. COLER, 280 U.S. 218; IN RE RUSSIAN BANK FOR
FOREIGN TRADE, L.R. 1933, CH. DIV. 745, 767; AMERICAN LAW INSTITUTE,
RESTATEMENT, CONFLICT OF LAWS, SECS. 108, 213. 

IT DOES NOT APPEAR THAT THE STATE OF NEW YORK, AT LEAST SINCE OUR
DIPLOMATIC RECOGNITION OF THE SOVIET GOVERNMENT, HAS ANY POLICY WHICH
WOULD PERMIT A NEW YORK DEBTOR TO QUESTION THE TITLE OF THAT GOVERNMENT
TO A CLAIM OF THE CREDITOR ACQUIRED BY ITS CONFISCATORY DECREE, AND NO
REASON IS APPARENT FOR ASSUMING THAT SUCH IS ITS POLICY.  PAYMENT OF
THE DEBT TO THE UNITED STATES AS TRANSFEREE WILL DISCHARGE THE DEBTOR
AND IMPOSE ON HIM NO BURDEN WHICH HE DID NOT UNDERTAKE WHEN HE ASSUMED
THE POSITION OF DEBTOR.  BEYOND THIS HE HAS NO INTEREST FOR THE STATE
TO PROTECT.  BUT IT IS A RECOGNIZED RULE THAT A STATE MAY RIGHTLY
REFUSE TO GIVE EFFECT TO EXTERNAL TRANSFERS OF PROPERTY WITHIN ITS
BORDERS SO FAR AS THEY WOULD OPERATE TO EXCLUDE CREDITORS SUING IN ITS
COURTS.  HARRISON V. STERRY, SUPRA; SECURITY TRUST CO. V. DODD, MEAD &
CO., SUPRA; DISCONTO GESELLSCHAFT V. UMBREIT, SUPRA; CLARK V. WILLIARD,
SUPRA; BARTH V. BACKUS, SUPRA. 

WE RECENTLY HELD, IN CLARK V. WILLIARD, SUPRA, THAT THE FULL FAITH
AND CREDIT CLAUSE DOES NOT PRECLUDE THE ATTACHMENT OF PROPERTY WITHIN
THE STATE, BY A LOCAL CREDITOR OF A FOREIGN CORPORATION, ALL OF WHOSE
PROPERTY HAS BEEN PREVIOUSLY TRANSFERRED, IN THE STATE OF ITS
INCORPORATION, TO A STATUTORY SUCCESSOR FOR THE BENEFIT OF CREDITORS. 
DUE PROCESS UNDER THE FIFTH AMENDMENT, THE BENEFITS OF WHICH EXTEND TO
ALIEN FRIENDS, AS WELL AS TO CITIZENS, RUSSIAN VOLUNTEER FLEET V.
UNITED STATES, 282 U.S. 481, DOES NOT REQUIRE ANY DIFFERENT RESULT. 
DISCONTO GESELLSCHAFT V. UMBREIT, SUPRA, 579, 580.  THE CONSTITUTION
HAS NO DIFFERENT APPLICATION WHERE THE PROPERTY TRANSFERRED IS A CHOSE
IN ACTION, LATER SEIZED BY A CREDITOR IN THE STATE OF THE DEBTOR. 
DISCONTO GESELLSCHAFT V. UMBREIT, SUPRA.  SEE HARRISON V. STERRY,
SUPRA.  IN CONFORMITY TO THIS DOCTRINE, NEW YORK WOULD HAVE BEEN FREE
TO ENFORCE A LOCAL POLICY, SUBORDINATING THE SOVIET GOVERNMENT, AS THE
SUCCESSOR OF ITS NATIONAL, TO LOCAL SUITORS.  ITS JUDICIAL DECISIONS
INDICATE THAT SUCH MAY BE ITS POLICY FOR THE PROTECTION OF CREDITORS OR
OTHERS CLAIMING AN INTEREST IN THE SUM DUE.  JAMES & CO. V. SECOND
RUSSIAN INSURANCE CO., 239 N.Y. 248, 257; 146 N.E. 369; MATTER OF
PEOPLE (CITY EQUITABLE FIRE INSURANCE CO.), 238 N.Y. 147, 152; 144 N.E.
484; MATTER OF WAITE, 99 N.Y. 433, 448; 2 N.E. 440.  SEE VLADIKAVKAZSKY
RY. CO. V. NEW YORK TRUST CO., SUPRA. 

IT SEEMS PLAIN THAT, SO FAR AS NOW APPEARS, THE UNITED STATES DOES
NOT STAND IN ANY BETTER POSITION WITH RESPECT TO THE ASSIGNED CLAIM
THAN DID ITS ASSIGNOR, OR ANY OTHER TRANSFEREE OF THE SOVIET
GOVERNMENT.  WE MAY, FOR PRESENT PURPOSES, ASSUME THAT THE UNITED
STATES, BY TREATY WITH A FOREIGN GOVERNMENT WITH RESPECT TO A SUBJECT
IN WHICH THE FOREIGN GOVERNMENT HAS SOME INTEREST OR CONCERN, COULD
ALTER THE POLICY WHICH A STATE MIGHT OTHERWISE ADOPT.  IT IS
UNNECESSARY TO CONSIDER WHETHER THE PRESENT AGREEMENT BETWEEN THE TWO
GOVERNMENTS CAN RIGHTLY BE GIVEN THE SAME EFFECT AS A TREATY WITHIN
THIS RULE, FOR NEITHER THE ALLEGATIONS OF THE BILL OF COMPLAINT, NOR
THE DIPLOMATIC EXCHANGES, SUGGEST THAT THE UNITED STATES HAS EITHER
RECOGNIZED OR DECLARED THAT ANY STATE POLICY IS TO BE OVERRIDDEN. 

SO FAR AS NOW RELEVANT, THE DOCUMENT SIGNED BY THE SOVIET GOVERNMENT,
AS PREPARATORY TO A MORE GENERAL SETTLEMENT OF CLAIMS AND COUNTERCLAIMS
BETWEEN THE TWO GOVERNMENTS, ASSIGNS AND RELEASES TO THE UNITED STATES
ALL AMOUNTS "DUE OR THAT MAY BE FOUND TO BE DUE IT" FROM AMERICAN
NATIONALS, AND PROVIDES THAT THE SOVIET GOVERNMENT IS "TO BE DULY
NOTIFIED IN EACH CASE OF ANY AMOUNT REALIZED BY THE GOVERNMENT OF THE
UNITED STATES FROM SUCH RELEASE AND ASSIGNMENT."  THE RELEVANT PORTION
OF THE DOCUMENT SIGNED BY THE PRESIDENT IS EXPRESSED IN THE FOLLOWING
PARAGRAPH: 

"I AM GLAD TO HAVE THESE UNDERTAKINGS BY YOUR GOVERNMENT AND I SHALL
BE PLEASED TO NOTIFY YOUR GOVERNMENT IN EACH CASE OF ANY AMOUNT
REALIZED BY THE GOVERNMENT OF THE UNITED STATES FROM THE RELEASE AND
ASSIGNMENT TO IT OF THE AMOUNTS ADMITTED TO BE DUE OR THAT MAY BE FOUND
TO BE DUE." 

THERE IS NOTHING IN EITHER DOCUMENT TO SUGGEST THAT THE UNITED STATES
WAS TO ACQUIRE OR EXERT ANY GREATER RIGHTS THAN ITS TRANSFEROR, OR THAT
THE PRESIDENT, BY MERE EXECUTIVE ACTION, PURPORTED OR INTENDED TO ALTER
THE LAWS AND POLICY OF ANY STATE IN WHICH THE DEBTOR OF AN ASSIGNED
CLAIM MIGHT RESIDE, OR THAT THE UNITED STATES, AS ASSIGNEE, IS TO DO
MORE THAN THE SOVIET GOVERNMENT COULD HAVE DONE AFTER DIPLOMATIC
RECOGNITION - THAT IS, COLLECT THE CLAIMS IN CONFORMITY WITH THOSE
LAWS.  CF. TODOK V. UNION STATE BANK, 281 U.S. 449. 

AS RESPONDENT DEBTOR MAY NOT CHALLENGE THE EFFECT OF THE ASSIGNMENT
TO THE UNITED STATES, THE JUDGMENT IS RIGHTLY REVERSED.  BUT AS THE
REVERSAL IS WITHOUT PREJUDICE TO THE RIGHTS OF ANY OTHER PARTIES TO
INTERVENE, THEY SHOULD BE LEFT FREE TO ASSERT, BY INTERVENTION OR OTHER
APPROPRIATE PROCEDURE, SUCH CLAIMS WITH RESPECT TO THE AMOUNT DUE AS
ARE IN ACCORDANCE WITH THE LAWS AND POLICY OF NEW YORK.  THERE IS NO
OCCASION TO SAY ANYTHING NOW WHICH CAN BE TAKEN TO FORECLOSE THE
ASSERTION BY SUCH CLAIMANTS OF THEIR RIGHTS UNDER NEW YORK LAW. 

MR. JUSTICE BRANDEIS AND MR. JUSTICE CARDOZO CONCUR IN THIS OPINION. 

..END :












SOUTHERN GAS CORP. V. ALABAMA, 301 U.S. 148 


NO. 570.  ARGUED MARCH 10, 1937.  - DECIDED APRIL 26, 1937.  - 233 ALA.
81 -  170 SO. 178, AFFIRMED. 


1.  A TAX ON A FOREIGN CORPORATION FOR THE PRIVILEGE OF DOING LOCAL
BUSINESS AND MEASURED ON ITS PROPERTY OWNED IN THE STATE, IS NOT
INVALID BECAUSE A PART OF THAT PROPERTY IS USED BY IT IN INTERSTATE
COMMERCE, THERE BEING NO DIRECT BURDEN ON INTERSTATE COMMERCE, AND THE
EFFECT THEREON BEING INCIDENTAL AND REMOTE.  P. 156. 

2.  AN ALABAMA LAW IMPOSES ON FOREIGN CORPORATIONS DOING BUSINESS IN
THE STATE AN ANNUAL "FRANCHISE TAX" OF $2.00 ON EACH $1,000 OF THE
CAPITAL EMPLOYED IN THE STATE.  HELD CONSISTENT WITH THE COMMERCE
CLAUSE AND VALID, AS APPLIED TO A DELAWARE CORPORATION QUALIFIED TO DO
BUSINESS IN ALABAMA AND MAINTAINING ITS COMMERCIAL DOMICILE THERE, AND
WHOSE BUSINESS CONSISTED IN PURCHASING NATURAL GAS IN LOUISIANA AND
MISSISSIPPI GAS FIELDS, TRANSPORTING IT THROUGH ITS PIPE LINE SYSTEM,
PART OF WHICH WAS IN ALABAMA, AND SELLING IT IN ALABAMA AND OTHER
STATES.  THE GAS MOVED CONTINUOUSLY FROM THE GAS FIELDS UNDER NATURAL
PRESSURE TO THE POINTS OF DELIVERY.  OF THE GAS DELIVERED IN ALABAMA,
PART WENT TO PUBLIC UTILITY DISTRIBUTORS, BUT THE REST WAS SOLD FOR
CONSUMPTION IN DIVERS INDUSTRIAL PLANTS, DELIVERY TO THEM BEING MADE
UPON ORDERS, AS REQUIRED, THROUGH SERVICE LINES INSTALLED AND
MAINTAINED BY THE CORPORATION, AFTER IT HAD REDUCED THE PRESSURE OF THE
GAS AND HAD METERED IT.  P. 153. 

SOUTHERN NATURAL GAS CORP. ET AL. V. ALABAMA. 

APPEAL FROM THE SUPREME COURT OF ALABAMA. 

APPEAL FROM A JUDGMENT SUSTAINING A TAX AND REVERSING THE STATE
CIRCUIT COURT, WHICH HAD HELD OTHERWISE ON AN APPEAL FROM THE
ASSESSMENT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE VALIDITY OF A FRANCHISE TAX
ASSESSED PURSUANT TO A STATUTE OF THE STATE OF ALABAMA UPON THE
SOUTHERN NATURAL GAS CORPORATION.  THE IMPOSITION OF THE TAX WAS
ASSAILED AS A DIRECT BURDEN UPON INTERSTATE COMMERCE AND AS ALSO
DEPRIVING THE CORPORATION OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW
AND DENYING IT THE EQUAL PROTECTION OF THE LAWS CONTRARY TO THE
FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION.  THE SUPREME COURT OF
THE STATE SUSTAINED THE TAX (170 SO. 178) AND THE CASE COMES HERE ON
APPEAL. 

THE STATUTE, ENACTED IN PURSUANCE OF SEC. 232 OF THE STATE
CONSTITUTION, IS SEC. 54 OF ACT NO. 163, GENERAL ACTS OF ALABAMA, 1927,
PAGE 176, AND PROVIDES: 

"THAT EVERY CORPORATION ORGANIZED UNDER THE LAWS OF ANY OTHER STATE,
NATION, OR TERRITORY, AND DOING BUSINESS IN THIS STATE, EXCEPT STRICTLY
BENEVOLENT, EDUCATIONAL OR RELIGIOUS CORPORATIONS, SHALL PAY ANNUALLY
TO THE STATE AN ANNUAL FRANCHISE TAX OF TWO DOLLARS ($2.00) ON EACH ONE
THOUSAND DOLLARS OF THE ACTUAL AMOUNT OF CAPITAL EMPLOYED IN THIS
STATE." 

THE ASSESSMENT WAS MADE BY THE STATE TAX COMMISSION FOR THE YEAR 1931
IN THE SUM OF $11,047.43 AND WAS SAID TO BE BASED UPON CAPITAL EMPLOYED
IN ALABAMA AMOUNTING TO $5,523,715.  APPELLANT RESISTED THE ASSESSMENT
UPON THE GROUND THAT IT WAS NOT DOING BUSINESS AND DID NOT PROPOSE TO
DO BUSINESS IN THE STATE OF ALABAMA EXCEPT IN INTERSTATE COMMERCE AND
THAT THE PROPERTY BY WHICH THE TAX WAS MEASURED WAS USED EXCLUSIVELY IN
INTERSTATE COMMERCE. 

THE CASE WAS SUBMITTED UPON AN AGREED STATEMENT FROM WHICH THE
FOLLOWING FACTS APPEAR: 

APPELLANT WAS ORGANIZED PRIOR TO MAY 12, 1928, UNDER THE LAWS OF
DELAWARE AND ON THAT DATE IT QUALIFIED TO DO BUSINESS IN ALABAMA.  IT
NAMED A STATUTORY AGENT AND FILED IN THE OFFICE OF THE SECRETARY OF
STATE A COPY OF ITS CHARTER WHICH COVERED A WIDE RANGE OF ACTIVITIES. 
FN1  IT HAS PAID ANNUALLY THE REQUIRED PERMIT FEE.  AT THE TIME OF THE
ASSESSMENT IN QUESTION APPELLANT MAINTAINED ITS OFFICE AND CHIEF PLACE
OF BUSINESS IN THE CITY OF BIRMINGHAM, ALABAMA.  THE ENTIRE MANAGEMENT,
CONTROL AND CONDUCT OF ITS BUSINESS WAS CONDUCTED FROM THAT OFFICE. 

APPELLANT IS ENGAGED IN THE TRANSMISSION AND DISTRIBUTION OF GAS
WHICH IT PURCHASES FROM THE PRODUCERS IN THE LOUISIANA AND MISSISSIPPI
FIELDS.  IN MAY, 1929, IT BEGAN THE CONSTRUCTION OF ITS PIPE LINES AND
BY JANUARY, 1931, IT HAD CONSTRUCTED ITS MAIN LINES FROM THE LOUISIANA
FIELDS TO ATLANTA AND COLUMBUS, GEORGIA, THE COLUMBUS LINE TURNING
SOUTH FROM THE ATLANTA LINE AT A POINT NEAR TUSCALOOSA, ALABAMA.  IN
1931, APPELLANT OWNED APPROXIMATELY 564 MILES OF PIPE AND VARIOUS ITEMS
OF REAL AND PERSONAL PROPERTY LOCATED WITHIN ALABAMA, ALL CONSTITUTING
PART OF ITS GENERAL TRANSMISSION SYSTEM.  IT WAS AGREED THAT IN THE
EVENT THAT IT SHOULD BE HELD THAT ALL OF APPELLANT'S PROPERTY LOCATED
IN THE STATE WAS SUBJECT TO THE ASSESSMENT OF A FRANCHISE TAX, THE
VALUE OF THAT PROPERTY AS OF JANUARY 1 TO MAY 13, 1931, THE DATE OF THE
FINAL ASSESSMENT, WAS $5,500,000. 

APPELLANT HAD CONTRACTS FOR THE DELIVERY OF NATURAL GAS IN ALABAMA TO
ONLY FOUR PURCHASERS.  THREE WERE INTRASTATE UTILITIES IN ALABAMA, THE
ALABAMA NATURAL GAS CORPORATION, THE SOUTHERN CITIES PUBLIC SERVICE
COMPANY AND THE BIRMINGHAM GAS COMPANY.  THESE COMPANIES WERE NOT
CONSUMERS BUT WERE ENGAGED, EITHER DIRECTLY OR THROUGH SUBSIDIARIES, IN
THE DISTRIBUTION OF NATURAL GAS AS PUBLIC UTILITIES IN THE STATE OF
ALABAMA.  THE FOURTH PURCHASER WAS THE TENNESSEE COAL, IRON & RAILROAD
COMPANY, A SUBSIDIARY OF THE UNITED STATES STEEL CORPORATION, WHICH
PURCHASED GAS FOR ITSELF AND AFFILIATED COMPANIES OPERATING STEEL AND
INDUSTRIAL PLANTS IN THE BIRMINGHAM DISTRICT AND WHICH WERE NOT PUBLIC
UTILITIES BUT CONSUMERS.  A MAJORITY OF ORDERS FOR GAS WERE RECEIVED BY
AND CLEARED THROUGH THE BIRMINGHAM OFFICE; ALL COLLECTIONS FOR SALES
WERE RECEIVED AND DISBURSEMENTS FOR EXPENSES WERE MADE OR AUTHORIZED AT
THAT OFFICE.  THE SALES TO THE TENNESSEE COMPANY AND ITS AFFILIATES
WERE MADE FROM TIME TO TIME UPON ORDERS GIVEN BY THE BIRMINGHAM OFFICE
AS THE NEEDS OF THE PURCHASERS REQUIRED. 

THE GAS SOLD TO THE ABOVE-NAMED PURCHASERS WAS DELIVERED IN
CONTINUOUS MOVEMENT FROM THE GAS FIELDS IN LOUISIANA OR MISSISSIPPI
WITHOUT BREAK OR INTERRUPTION, TO THE POINT WHERE IT WAS DELIVERED,
VIZ., THE METER HOUSE AT WHICH THE GAS SO SOLD WAS MEASURED FOR THE
PURPOSE OF PAYMENT.  THE GAS WAS MOVED UNDER UNREGULATED GAS PRESSURE,
AS PRODUCED BY THE NATURAL PRESSURE OF THE GAS WELLS, TO THE DESIGNATED
POINTS OF DELIVERY.  THE STIPULATION OF FACTS ALSO STATES THAT IN THE
SALES TO THE TENNESSEE COMPANY AND ITS AFFILIATES THE PRESSURE IS
REDUCED AT THE POINT OF DELIVERY FOR THE ACCOMMODATION OF THE PURCHASER
TO MEET ITS NEEDS AND REQUIREMENTS.  THE GENERAL PRACTICE IS THUS
DESCRIBED IN APPELLANT'S BRIEF:  "ALL GAS DELIVERED IN ALABAMA MOVED
UNDER MAIN LINE PRESSURE IN CONTINUOUS MOVEMENT FROM THE WELLS IN
LOUISIANA TO THE IMMEDIATE POINT OF DELIVERY IN ALABAMA, WHERE IT WAS
REDUCED IN PRESSURE AND MEASURED FOR THE SOLE PURPOSE OF EFFECTING
DELIVERY."  FN2 

THE AGREED STATEMENT SET FORTH APPELLANT'S CONTRACTS WITH THE ALABAMA
NATURAL GAS CORPORATION AND THE TENNESSEE COMPANY, RESPECTIVELY.  THESE
CONTAINED DETAILED PROVISIONS AS TO DELIVERY, PRESSURE, MEASUREMENT,
ETC.  IN THE CONTRACT WITH THE TENNESSEE COMPANY PROVISION WAS MADE FOR
THE ESTABLISHMENT OF SERVICE LINES TO THE CONSUMING PLANTS, AS FOLLOWS,
APPELLANT BEING DESCRIBED AS "SELLER": 

"SELLER SHALL AT ITS OWN EXPENSE PROVIDE IN ADVANCE OF THE INITIAL
DELIVERY DATE OF MARCH 1, 1930, SERVICE LINES OF SUITABLE SIZE TO A
POINT MUTUALLY AGREED UPON ON THE PROPERTY OF BUYER'S BESSEMER PLANT. 
TO REACH BUYER'S FAIRFIELD PLANT SELLER SHALL PROVIDE A SERVICE LINE
THAT WILL CROSS BUYER'S ENSLEY PROPERTY AND RUN IN A SOUTHWESTERLY
DIRECTION ON THE PROPERTY OF BUYER TO SOME POINT MUTUALLY AGREED UPON,
ON BUYER'S FAIRFIELD PREMISES.  BUYER AGREES THAT IT WILL MAKE NO
CHARGE FOR RIGHT OF WAY FOR ANY PART OF THE SERVICE LINES TRAVERSING
ITS PROPERTY.  A SUITABLE METER WILL BE PROVIDED FOR METERING GAS THAT
MAY BE USED IN THE BESSEMER PLANT, IN THE ENSLEY PLANT AND IN THE
FAIRFIELD PLANT OF THE BUYER AND THE PLANTS OF OTHER SUBSIDIARY
COMPANIES." 

THESE PLANTS, THE STATE COURT SAID, WERE "WIDELY SEPARATED."  THE
CONTRACT ALSO PROVIDES: 

"THE NATURAL GAS SHALL BE DELIVERED AT A PRESSURE OF NOT LESS THAN 30
POUNDS GAUGE AT SOME MUTUALLY SATISFACTORY LOCATION OR LOCATIONS UPON
THE PREMISES OF BUYER, AND SELLER SHALL THERE FURNISH, INSTALL, OPERATE
AND MAINTAIN AT ITS OWN EXPENSE REGULATING AND MEASURING STATION OR
STATIONS PROPERLY EQUIPPED WITH ORIFICE METERS AND RECORDING GAUGES OR
OTHER TYPE OF METER OR METERS OF STANDARD STYLE AS MAY BE MUTUALLY
AGREED UPON CONFORMABLE TO THE CURRENT RECOMMENDATIONS OF GAS
MEASUREMENTS COMMITTEE OF AMERICAN GAS ASSOCIATION, THE MEASUREMENT BY
WHICH SHALL FIX THE TOTAL AMOUNT OF NATURAL GAS DELIVERED BY SELLER TO
BUYER. 

"THE MEASURING EQUIPMENT SO INSTALLED BY SELLER, TOGETHER WITH ANY
BUILDING ERECTED BY IT FOR SUCH EQUIPMENT, SHALL BE AND REMAIN ITS
PROPERTY." 

FIRST.   - THE STATUTE, WHICH IS CHALLENGED AS HERE APPLIED, WAS
UNDER CONSIDERATION IN ANGLO-CHILEAN NITRATE SALES CORP. V. ALABAMA,
288 U.S. 218.  IN THE LIGHT OF THE DECISIONS OF THE SUPREME COURT OF
THE STATE, THIS COURT CONCLUDED THAT THE TAX WAS LAID "NOT UPON THE
AUTHORIZATION, RIGHT OR PRIVILEGE TO DO BUSINESS IN ALABAMA, BUT UPON
THE ACTUAL DOING OF BUSINESS."  ID., P. 223.  THE TAX WAS HELD INVALID
AS APPLIED TO A FOREIGN CORPORATION WHOSE SOLE BUSINESS IN THE STATE
CONSISTED IN THE LANDING, STORAGE AND SALE IN THE ORIGINAL PACKAGES, OF
GOODS IMPORTED FROM ABROAD.  IN THE INSTANT CASE THE SUPREME COURT OF
THE STATE HAS REVIEWED ITS RULINGS AND HAS EXPOUNDED THE MEANING OF THE
STATUTE.  THE STATE COURT HOLDS THAT THE TAX IS A FRANCHISE TAX LAID
"UPON THE RIGHT TO DO BUSINESS."  IT IS A TAX LEVIED "ON FOREIGN
CORPORATIONS AS A PREROGATIVE TO THE RIGHT OF EXERCISE OF ITS CORPORATE
FUNCTIONS IN THE STATE."  IT "IS NOT ON ANY BASIS A TAX ON BUSINESS"
BUT IS LAID "ON THE EXERCISE OF CORPORATE FUNCTIONS, OR ON THE
PRIVILEGE OF EXERCISING CORPORATE FUNCTIONS WITHIN THE STATE AND ITS
EMPLOYMENT OF ITS CAPITAL IN ALABAMA." 

BY COMPLIANCE WITH THE STATUTE APPELLANT OBTAINED THE PRIVILEGE OF
ENGAGING WITHIN THE STATE IN ANY OF THE ACTIVITIES WHICH ITS CHARTER
AUTHORIZED. 

SECOND.   - APPELLANT MADE BIRMINGHAM, ALABAMA, ITS HEADQUARTERS FOR
THE TRANSACTION OF BUSINESS.  THE "ENTIRE MANAGEMENT" WAS CONDUCTED
FROM ITS PRINCIPAL OFFICE AT THAT PLACE.  THERE, AS THE STATE COURT
SAID, WAS "THE CONTROL OF THE BUSINESS IN ALL OF ITS ASPECTS."  THERE
ORDERS FOR DELIVERIES OF GAS UNDER ITS CONTRACTS AND ALL COLLECTIONS
FROM SALES WERE RECEIVED AND ALL DISBURSEMENTS WERE MADE OR
AUTHORIZED.  WHILE DELAWARE WAS THE STATE OF INCORPORATION, APPELLANT'S
COMMERCIAL DOMICILE WAS IN ALABAMA.  WHEELING STEEL CORP. V. FOX, 298
U.S. 193, 211. 

FROM THE AGREED FACTS WE ARE UNABLE TO CONCLUDE THAT THE BUSINESS
THUS CONDUCTED IN ALABAMA WAS ENTIRELY AN INTERSTATE BUSINESS.  WHILE
THE GAS WHICH APPELLANT SOLD WAS BROUGHT INTO THE STATE FROM LOUISIANA,
IT APPEARS THAT APPELLANT CARRIED ON IN ALABAMA ACTIVITIES OF AN
INTRASTATE CHARACTER.  WE HAD OCCASION IN EAST OHIO GAS CO. V. TAX
COMMISSION, 283 U.S. 465, 470, TO CONSIDER THE DISTINCTION BETWEEN THE
TRANSPORTATION OF GAS INTO A STATE AND THE FURNISHING OF THE GAS SO
TRANSPORTED TO CONSUMERS WITHIN THE STATE.  WE OBSERVED IN THAT CASE
THAT "WHEN THE GAS PASSES FROM THE DISTRIBUTION LINES INTO THE SUPPLY
MAINS, IT NECESSARILY IS RELIEVED OF NEARLY ALL THE PRESSURE PUT UPON
IT AT THE STATIONS OF THE PRODUCING COMPANIES," ITS VOLUME IS EXPANDED,
AND IT IS DIVIDED INTO THE SMALLER STREAMS THAT ENTER THE SERVICE LINES
CONNECTING SUCH MAINS WITH THE PIPES ON THE CONSUMER'S PREMISES.  IN
THAT CASE, THE OHIO COMPANY FURNISHED GAS TO CONSUMERS IN
MUNICIPALITIES BY MEANS OF DISTRIBUTION PLANTS AND THAT ACTIVITY WAS
HELD TO BE NOT INTERSTATE COMMERCE BUT A BUSINESS OF PURELY LOCAL
CONCERN EXCLUSIVELY WITHIN THE JURISDICTION OF THE STATE.  THE COURT
QUOTED WITH APPROVAL THE STATEMENT IN MISSOURI V. KANSAS GAS CO., 265
U.S. 298, 309, THAT "THE BUSINESS OF SUPPLYING, ON DEMAND, LOCAL
CONSUMERS IS A LOCAL BUSINESS, EVEN THOUGH THE GAS BE BROUGHT FROM
ANOTHER STATE AND DRAWN FOR DISTRIBUTION PLANTS DIRECTLY FROM
INTERSTATE MAINS; AND THIS IS SO WHETHER THE LOCAL DISTRIBUTION BE MADE
BY THE TRANSPORTING COMPANY OR BY INDEPENDENT DISTRIBUTING COMPANIES. 
IN SUCH CASE THE LOCAL INTEREST IS PARAMOUNT, AND THE INTERFERENCE WITH
INTERSTATE COMMERCE, IF ANY, INDIRECT AND OF MINOR IMPORTANCE." 

WHILE THE FACTS OF THE TWO CASES ARE NOT THE SAME, THERE IS A CLEAR
ANALOGY.  FOR HERE UNDER ITS CONTRACT WITH THE TENNESSEE COMPANY, WHICH
BOUGHT FOR CONSUMPTION BY ITSELF AND ITS SUBSIDIARIES IN INDUSTRIAL
PLANTS, APPELLANT AGREED NOT SIMPLY TO INSTALL METERING STATIONS, FOR
MEASURING THE AMOUNT OF GAS DELIVERED, BUT TO ESTABLISH THE REQUISITE
SERVICE LINES RUNNING TO THE DESCRIBED PLANTS IN ORDER THAT THE GAS
MIGHT BE FURNISHED IN A MANNER SUITED TO THE CONSUMERS' NEEDS.  THE GAS
WAS SUPPLIED THROUGH THESE SERVICE LINES ON THE ORDERS RECEIVED FROM
TIME TO TIME AT THE BIRMINGHAM OFFICE.  WE PERCEIVE NO ESSENTIAL
DISTINCTION IN LAW BETWEEN THE ESTABLISHMENT OF SUCH A LOCAL ACTIVITY
TO MEET THE NEEDS OF CONSUMERS IN INDUSTRIAL PLANTS AND THE SERVICE TO
CONSUMERS IN THE MUNICIPALITIES WHICH WAS FOUND IN THE OHIO CASE TO
CONSTITUTE AN INTRASTATE BUSINESS.  AS WAS SAID IN THAT CASE:  "THE
TREATMENT AND DIVISION OF THE LARGE COMPRESSED VOLUME OF GAS IS LIKE
THE BREAKING OF AN ORIGINAL PACKAGE, AFTER A SHIPMENT IN INTERSTATE
COMMERCE, IN ORDER THAT ITS CONTENTS MAY BE TREATED, PREPARED FOR SALE
AND SOLD AT RETAIL." 

THE FACTS THUS DISTINGUISH THE INSTANT CASE FROM THAT OF OZARK PIPE
LINE CORP. V. MONIER, 266 U.S. 555.  THERE THE CORPORATION OPERATED A
PIPE LINE EXTENDING FROM OKLAHOMA THROUGH MISSOURI TO A POINT IN
ILLINOIS.  MISSOURI SOUGHT TO TAX THE PRIVILEGE OF DOING BUSINESS
WITHIN THE STATE.  BUT NOTHING WAS DONE IN MISSOURI EXCEPT IN
FURTHERANCE OF TRANSPORTATION.  OIL WAS NEITHER RECEIVED NOR DELIVERED
IN THAT STATE.  THE BUSINESS ACTUALLY CARRIED ON "WAS EXCLUSIVELY IN
INTERSTATE COMMERCE" AND WHATEVER WAS DONE WITHIN MISSOURI IN THE
MAINTENANCE OF AN OFFICE OR OTHERWISE WAS "ALL EXCLUSIVELY IN
FURTHERANCE OF ITS INTERSTATE BUSINESS."  ID., P. 565.  IN MISSOURI V.
KANSAS GAS CO., SUPRA, AS NOTED ABOVE, THE DISTINCTION WAS POINTED
OUT.  THERE "THE TRANSPORTATION, SALE AND DELIVERY" OF THE GAS
CONSTITUTED AN "UNBROKEN CHAIN, FUNDAMENTALLY INTERSTATE FROM BEGINNING
TO END."  SO, THE CASE OF STATE TAX COMMISSION V. INTERSTATE NATURAL
GAS CO., 284 U.S. 41, RESTED UPON THE CONCLUSION THAT WHAT WAS DONE WAS
WHOLLY INCIDENTAL TO INTERSTATE COMMERCE BETWEEN LOUISIANA AND
MISSISSIPPI.  THERE WERE NO SUCH LOCAL ACTIVITIES AS ARE PRESENT HERE
TO CARRY THE TRANSACTIONS OF THE COMPANY INTO THE FIELD OF STATE
AUTHORITY.    THAT AUTHORITY WAS HELD TO BE PROPERLY EXERTED IN THE
CASE OF ATLANTIC LUMBER CO. V. COMMISSIONER, 298 U.S. 553.  THE
CORPORATION WAS ORGANIZED IN DELAWARE BUT IT DID NOT "FUNCTION THERE"
BUT IN MASSACHUSETTS.  THERE IT ESTABLISHED ITS OFFICE FOR THE EXERCISE
OF ITS CORPORATE POWERS.  THAT WAS THE HEADQUARTERS FOR SALESMEN WHO
SOLICITED ORDERS IN THAT AND OTHER STATES.  THERE ORDERS WERE ACCEPTED
AND REMITTANCES RECEIVED.  THE CORPORATION WAS ENGAGED IN THE WHOLESALE
LUMBER BUSINESS AND OWNED PRACTICALLY ALL THE STOCK OF THREE
SUBSIDIARIES, TWO OF WHICH WERE ENGAGED IN CUTTING TIMBER AND
MANUFACTURING LUMBER IN OTHER STATES, AND A THIRD HELD TITLE TO TIMBER
LANDS IN LOUISIANA.  THE COURT SAID THAT IF APPELLANT DID NOTHING BUT
TRANSACT INTERSTATE BUSINESS, THE EXCISE TAX SOUGHT TO BE LEVIED WITH
RESPECT TO THE DOING OF BUSINESS IN MASSACHUSETTS COULD NOT STAND, BUT
IN VIEW OF THE ACTIVITIES CONDUCTED IN MASSACHUSETTS AND THE CORPORATE
FUNCTIONS THERE EXERCISED, THE COURT DECIDED THAT THE PRIVILEGE TAX WAS
VALID AND THAT THE EFFECT UPON INTERSTATE COMMERCE, SO FAR AS THERE WAS
ANY, WAS "REMOTE AND INCIDENTAL."  BECAUSE OF THE LOCAL ACTIVITIES, THE
DECISION IN THE OZARK CASE WAS HELD TO BE INAPPLICABLE. 

THIRD.   - AS ALABAMA WAS COMPETENT TO LAY A FRANCHISE TAX UPON
APPELLANT FOR THE PRIVILEGE OF DOING AN INTRASTATE BUSINESS, IT WAS
COMPETENT TO MEASURE THE TAX BY THE CAPITAL EMPLOYED WITHIN THE STATE
PROVIDED THE TAX WAS NOT SO LAID AS TO DISCRIMINATE AGAINST INTERSTATE
COMMERCE OR OTHERWISE LAY A DIRECT BURDEN UPON IT.  POSTAL TELEGRAPH
CABLE CO. V. ADAMS, 155 U.S. 688, 696; ST. LOUIS SOUTHWESTERN RY. CO.
V. ARKANSAS, 235 U.S. 350, 364-367; UNDERWOOD TYPEWRITER CO. V.
CHAMBERLAIN, 254 U.S. 113, 119, 120; ST. LOUIS-SAN FRANCISCO RY. CO. V.
MIDDLEKAMP, 256 U.S. 226, 231; HUMP HAIRPIN CO. V. EMMERSON, 258 U.S.
290, 294; INTERNATIONAL SHOE CO. V. SHARTEL, 279 U.S. 429, 433; WESTERN
CARTRIDGE CO. V. EMMERSON, 281 U.S. 511, 513, 514; ATLANTIC LUMBER CO.
V. COMMISSIONER, SUPRA. 

THERE IS HERE NO ATTEMPT TO TAX PROPERTY THAT IS BEYOND THE
BOUNDARIES OF THE STATE.  THE TAX WAS LAID ONLY UPON PROPERTY EMPLOYED
WITHIN THE STATE AND ENFORCEMENT IS LEFT TO THE ORDINARY MEANS OF
COLLECTING TAXES.  THE RULE WAS THUS STATED IN INTERNATIONAL SHOE CO.
V. SHARTEL, SUPRA: "A FRANCHISE TAX IMPOSED ON A CORPORATION, FOREIGN
OR DOMESTIC, FOR THE PRIVILEGE OF DOING A LOCAL BUSINESS, IF
APPORTIONED TO BUSINESS DONE OR PROPERTY OWNED WITHIN THE STATE, IS NOT
INVALID UNDER THE COMMERCE CLAUSE MERELY BECAUSE A PART OF THE PROPERTY
OR CAPITAL INCLUDED IN COMPUTING THE TAX IS USED BY IT IN INTERSTATE
COMMERCE."  THERE IS NO SHOWING OF ANY DIRECT BURDEN UPON INTERSTATE
COMMERCE, THE EFFECT UPON THAT COMMERCE BEING INCIDENTAL AND REMOTE,
NOT DIFFERING IN THIS RESPECT FROM THE EFFECT OF ORDINARY AD VALOREM
TAXATION OF PROPERTY WITHIN THE STATE.  POSTAL TELEGRAPH CABLE CO. V.
ADAMS, SUPRA; ST. LOUIS SOUTHWESTERN RY. CO. V. ARKANSAS, SUPRA. 

THE JUDGMENT OF THE SUPREME COURT OF ALABAMA IS AFFIRMED. 

FN1  THE CHARTER AUTHORIZED APPELLANT TO STORE, TRANSPORT, BUY AND
SELL OIL, GAS, SALT, BRINE AND OTHER MINERAL SOLUTIONS; TO MANUFACTURE,
ACQUIRE, DISTRIBUTE, USE AND SELL ARTIFICIAL GAS, WITH BY-PRODUCTS; TO
MINE, PRODUCE, BUY, USE, SELL AND DISTRIBUTE NATURAL GAS, WITH BY
PRODUCTS; TO PRODUCE, BUY, USE, SELL AND DISTRIBUTE A MIXTURE OF
ARTIFICIAL AND NATURAL GAS; TO CONSTRUCT, ACQUIRE AND OPERATE ALL WORKS
AND ALL PIPE LINES, MAINS, PLANTS, SYSTEMS, ETC. FOR THE ABOVE
PURPOSES, WITH THE POWER OF EMINENT DOMAIN; TO ACQUIRE, MANUFACTURE AND
DEAL IN ICE. 

FN2  APPELLANT MAKES AN EXPLANATORY STATEMENT IN A FOOT NOTE AS
FOLLOWS:  "IT IS A MATTER OF GENERAL KNOWLEDGE THAT LONG DISTANCE
TRANSMISSION OF NATURAL GAS (APPELLANT'S SYSTEM COMPRISING ABOUT 1000
MILES) MOVES UNDER LINE PRESSURE OF APPROXIMATELY 400 POUNDS, GREATLY
IN EXCESS OF THE REQUIREMENT OR REQUIRED TENSILE STRENGTH OF THE
DISTRIBUTION PIPES OF THE UTILITY OR OTHER PURCHASERS FROM THE LONG
DISTANCE TRANSPORTATION COMPANY." 
..END :














RAY V. UNITED STATES, 301 U.S. 158 


NO. 604.  ARGUED MARCH 30, 1937.  - DECIDED APRIL 26, 1937.  - 86 F.(2D)
942, AFFIRMED. 


1.  IN A CRIMINAL CASE, WHEN THE TIME FOR FILING A BILL OF EXCEPTIONS
IS EXTENDED BY THE JUDGE TO A DATE WHICH IS A SUNDAY, THAT DAY IS TO BE
EXCLUDED AND THE BILL MAY BE FILED ON THE DAY FOLLOWING.  CRIMINAL
APPEALS RULE XIII.  P. 161. 

RULE XIII PROVIDES:  "FOR THE PURPOSE OF COMPUTING TIME AS SPECIFIED
IN THE FOREGOING RULES, SUNDAYS AND LEGAL HOLIDAYS (WHETHER UNDER
FEDERAL LAW OR UNDER THE LAW OF THE STATE WHERE THE CASE WAS BROUGHT)
SHALL BE EXCLUDED." 

2.  THE LIMITATION IMPOSED UPON THE TRIAL JUDGE BY CRIMINAL APPEALS
RULE IX WITH RESPECT TO EXTENSION OF THE TIME FOR FILING A BILL OF
EXCEPTIONS, DOES NOT APPLY TO THE CIRCUIT COURT OF APPEALS OR TO THE
TRIAL JUDGE ACTING UNDER DIRECTION OF THAT COURT.  P. 161. 

3.  THE FUNDAMENTAL POLICY OF THE CRIMINAL APPEALS RULES IS THAT AS
SPEEDILY AS POSSIBLE, UPON THE TAKING OF THE APPEAL, THE CIRCUIT COURT
OF APPEALS SHALL BE INVESTED WITH JURISDICTION TO SEE THAT THE APPEAL
IS PROPERLY EXPEDITED AND TO SUPERVISE AND CONTROL ALL PROCEEDINGS ON
THE APPEAL "INCLUDING THE PROCEEDINGS RELATING TO THE PREPARATION OF
THE RECORD ON APPEAL."  P. 163. 

4.  THE DUTY OF THE CLERK OF THE TRIAL COURT, UNDER RULE IV, UPON THE
FILING OF A NOTICE OF APPEAL, IMMEDIATELY TO FORWARD THE DUPLICATE
NOTICE TO THE CLERK OF THE APPELLATE COURT, TOGETHER WITH A STATEMENT
FROM THE DOCKET ENTRIES IN THE CASE SUBSTANTIALLY AS PROVIDED IN THE
FORM ANNEXED TO THE RULES, IS A MINISTERIAL DUTY.  P. 163. 

5.  UNDER RULE IV, THE CIRCUIT COURT OF APPEALS IS EMPOWERED TO
VACATE OR MODIFY ANY ORDER OF THE TRIAL COURT OR JUDGE IN RELATION TO
THE PROSECUTION OF THE APPEAL, AND THIS EMBRACES THE PROCEEDINGS
RELATING TO THE PREPARATION OF THE RECORD ON APPEAL, INCLUDING AN ORDER
OF THE TRIAL JUDGE FIXING THE TIME FOR FILING THE BILL OF EXCEPTIONS. 
P. 163. 

6.  THE CIRCUIT COURT OF APPEALS HAS AUTHORITY TO RETURN A BILL OF
EXCEPTIONS TO THE TRIAL JUDGE FOR APPROPRIATE CORRECTIONS, INCLUDING
THE SETTING FORTH OF THE EVIDENCE IN CONDENSED AND NARRATIVE FORM. 
RULE IX.  P. 164. 

7.  SUPERVISION AND CONTROL BY THE CIRCUIT COURT OF APPEALS UNDER THE
CRIMINAL APPEALS RULES CALLS FOR THE EXERCISE OF A SOUND JUDICIAL
DISCRETION, WHICH WILL NOT BE REVIEWED UNLESS ABUSED.  A REFUSAL TO
EXTEND THE TIME FOR FILING A BILL OF EXCEPTIONS BEYOND THAT FIXED BY
THE TRIAL JUDGE, - HELD, IN THE CIRCUMSTANCES OF THIS CASE, NOT AN
ABUSE OF DISCRETION.  P. 166. 

RAY V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 300 U.S. 647, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS OVERRULING A MOTION TO AMEND THE RECORD AND DISMISSING THE
APPEAL IN A CRIMINAL CASE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

CERTIORARI WAS GRANTED TO DETERMINE IMPORTANT QUESTIONS WHICH HAVE
ARISEN IN THE ADMINISTRATION OF THE CRIMINAL APPEALS RULES PROMULGATED
MAY 7, 1934.  292 U.S. PP. 660 ET SEQ. 

PETITIONER WAS CONVICTED OF VIOLATION OF THE MAIL FRAUD AND
CONSPIRACY STATUTES.  HIS TIMELY APPEAL WAS TAKEN ON JUNE 30, 1936. 
WITHIN THIRTY DAYS THEREAFTER THE TRIAL JUDGE EXTENDED THE TIME TO FILE
A BILL OF EXCEPTIONS TO AND INCLUDING NOVEMBER 1, 1936, WHICH WAS A
SUNDAY.  THE TRIAL HAD BEEN LONG AND THE TESTIMONY WAS VOLUMINOUS.  ON
OCTOBER 20, 1936, AFTER UNSUCCESSFUL EFFORTS TO OBTAIN AN AGREEMENT AS
TO THE CONDENSATION OF THE EVIDENCE, PETITIONER APPLIED TO THE TRIAL
JUDGE FOR AN EXTENSION OF TIME TO SETTLE AND FILE THE BILL OF
EXCEPTIONS.  AS IT WAS FOUND THAT THE TRIAL JUDGE WAS WITHOUT AUTHORITY
TO GRANT THAT EXTENSION, PETITIONER SOUGHT AN EXTENSION FROM THE
CIRCUIT COURT OF APPEALS, BUT HIS MOTION WAS DENIED ON OCTOBER 27TH. 
HE THEN ASKED THE TRIAL JUDGE TO SETTLE THE STENOGRAPHER'S MINUTES AS
THE BILL OF EXCEPTIONS.  THAT MOTION WAS FIRST DENIED ON OCTOBER 29TH,
BUT ON THE FOLLOWING DAY THE TRIAL JUDGE EXPRESSED HIS WILLINGNESS TO
RECEIVE A SIMILAR APPLICATION IF THE COLLOQUY OF COUNSEL WAS STRICKEN
FROM THE TRANSCRIPT, THAT APPLICATION TO BE MADE ON MONDAY, NOVEMBER
2D.  ON THAT DAY THE BILL OF EXCEPTIONS, SO PREPARED, WAS SETTLED AND
FILED.  ON NOVEMBER 16, 1936, THE GOVERNMENT MOVED TO DOCKET AND
DISMISS THE APPEAL UPON THE GROUND THAT PETITIONER HAD FAILED TO COMPLY
WITH RULES VIII AND IX OF THE CRIMINAL APPEALS RULES.  THE MOTION WAS
GRANTED.  PETITIONER ASKED FOR A REHEARING AND WAS HEARD.  INSISTING
THAT IT WAS IMPOSSIBLE WITHIN THE ALLOTTED TIME TO SET FORTH THE
EVIDENCE IN CONDENSED AND NARRATIVE FORM, PETITIONER REQUESTED THE
CIRCUIT COURT OF APPEALS TO EXERCISE ITS DISCRETIONARY POWER UNDER RULE
IX TO THE END THAT THE DEFECT IN THE BILL OF EXCEPTIONS MIGHT BE
CURED.  THAT REQUEST WAS MADE SIMULTANEOUSLY WITH THE MOTION TO
DISMISS.  IT APPEARS TO HAVE BEEN TREATED AS A MOTION TO AMEND THE
RECORD AND IT WAS DENIED.  THE COURT TOOK THE VIEW THAT AS, BY THE
ASSIGNMENT OF ERRORS FILED WITH THE BILL OF EXCEPTIONS, THE QUESTION
WAS RAISED AS TO THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE
CONVICTION, IT WAS NECESSARY UNDER THE RULE THAT THE EVIDENCE SHOULD BE
PROPERLY PRESENTED IN CONDENSED AND NARRATIVE FORM.  THE COURT HELD
THAT THE TIME FOR THE SETTLEMENT OF THE BILL OF EXCEPTIONS COULD NOT BE
ENLARGED, AND THAT IF THE BILL WERE RETURNED TO THE TRIAL JUDGE HE
WOULD BE POWERLESS TO CORRECT, AMEND OR RESETTLE IT AS THE TIME FOR
SUCH ACTION HAD EXPIRED. 

FINALLY THE COURT DECIDED THAT PETITIONER WAS INEXCUSABLY
DELINQUENT.  THE COURT SAID:  "THIS APPELLANT HAD FOUR MONTHS AND HAS
OFFERED INSUFFICIENT EXCUSES FOR HIS DELINQUENCY.  THE BILL OF
EXCEPTIONS WAS INSUFFICIENT."  THE MOTION TO AMEND THE RECORD WAS
DENIED AND THE MOTION TO DISMISS THE APPEAL WAS GRANTED.  86 F.(2D)
942. 

FIRST.   - THE GOVERNMENT CONTENDS THAT THE BILL OF EXCEPTIONS FILED
ON NOVEMBER 2D WAS TOO LATE.  THE CIRCUIT COURT OF APPEALS CORRECTLY
HELD THE CONTRARY.  THE TRIAL JUDGE, BY VALID ORDER, HAD EXTENDED THE
TIME "TO AND INCLUDING THE 1ST DAY OF NOVEMBER, 1936."  THAT DAY BEING
SUNDAY, ON WHICH THE BILL OF EXCEPTIONS COULD NOT BE FILED, THE TRIAL
JUDGE CONSTRUED HIS ORDER AS PERMITTING THE SETTLEMENT AND FILING ON
THE FOLLOWING DAY.  RULE XIII OF THE CRIMINAL APPEALS RULES PROVIDES: 

"FOR THE PURPOSE OF COMPUTING TIME AS SPECIFIED IN THE FOREGOING
RULES, SUNDAYS AND LEGAL HOLIDAYS (WHETHER UNDER FEDERAL LAW OR UNDER
THE LAW OF THE STATE WHERE THE CASE WAS BROUGHT) SHALL BE EXCLUDED." 

THE GOVERNMENT ARGUES THAT THIS RULE REFERS TO A "COMPUTATION," AS
WHERE THE EXTENSION IS FOR A CERTAIN TERM OR PERIOD, AND NOT TO A CASE
WHERE A SPECIFIC DATE IS FIXED.  THE LATTER CASE IS SAID TO LIE OUTSIDE
THE RULE AND WE ARE REFERRED TO VARIOUS DECISIONS WHICH ARE DEEMED TO
FURNISH ANALOGIES FOR OUR GUIDANCE IN REACHING A CONCLUSION UPON A
POINT LEFT OPEN.  BUT THERE APPEARS TO BE NO REASON WHY RULE XIII
SHOULD BE SO NARROWLY CONSTRUED.  THE PHRASE "FOR THE PURPOSE OF
COMPUTING TIME" WAS PLAINLY INTENDED TO BE OF GENERAL APPLICATION AND
"COMPUTING" NATURALLY EMBRACES WHATEVER RECKONING IS NECESSARY TO FIX
THE TIME ALLOWED.  WHEN A SPECIFIC DATE IS FIXED AND THAT DATE FALLS ON
SUNDAY OR A HOLIDAY, THE RULE FOR THE RECKONING REQUIRES THAT THAT DAY
BE EXCLUDED AND HENCE THE BILL OF EXCEPTIONS, IN THIS CASE, APART FROM
OTHER QUESTIONS, WAS SETTLED AND FILED IN TIME. 

SECOND.   - THE CIRCUIT COURT OF APPEALS HAD AUTHORITY TO EXTEND THE
TIME FOR FILING THE BILL OF EXCEPTIONS.  RULE IX DOES LIMIT THE POWER
OF THE TRIAL JUDGE TO GRANT EXTENSIONS.  THE PURPOSE OF THE RULE BEING
TO EXPEDITE APPEALS IN CRIMINAL CASES, IT WAS SOUGHT TO PUT AN END TO
THE INORDINATE DELAYS DUE TO EXTENSIONS OF TIME TO PREPARE BILLS OF
EXCEPTIONS.  SUCH EXTENSIONS HAD BEEN ONE OF THE MOST PROLIFIC CAUSES
OF THE DELAYS IN THE DISPOSITION OF CRIMINAL APPEALS.  ACCORDINGLY RULE
IX PROVIDES: 

"IN CASES OTHER THAN THOSE DESCRIBED IN RULE VIII (WHICH REFERS TO
THE RECORD ON APPEAL WITHOUT BILL OF EXCEPTIONS), THE APPELLANT, WITHIN
THIRTY (30) DAYS AFTER THE TAKING OF THE APPEAL, OR WITHIN SUCH FURTHER
TIME AS WITHIN SAID PERIOD OF THIRTY DAYS MAY BE FIXED BY THE TRIAL
JUDGE, SHALL PROCURE TO BE SETTLED, AND SHALL FILE WITH THE CLERK OF
THE COURT IN WHICH THE CASE WAS TRIED, A BILL OF EXCEPTIONS SETTING
FORTH THE PROCEEDINGS UPON WHICH THE APPELLANT WISHES TO RELY IN
ADDITION TO THOSE SHOWN BY THE CLERK'S RECORD AS DESCRIBED IN RULE
VIII." 

THE RULE PRESUPPOSES THAT THE TRIAL JUDGE, WHO IS FAMILIAR WITH THE
PROCEEDINGS ON THE TRIAL, IS IN A POSITION TO ESTIMATE THE LENGTH OF
TIME THAT IS NECESSARY FOR THE PREPARATION AND FILING OF THE BILL OF
EXCEPTIONS, AND HE IS PERMITTED WITHIN THIRTY DAYS AFTER THE TAKING OF
THE APPEAL TO FIX THAT TIME.  THAT IS THE LIMIT OF HIS AUTHORITY,  FN1
SAVE AS HE MAY ACT UNDER THE DIRECTION OF THE CIRCUIT COURT OF
APPEALS.  BUT WHILE THIS LIMIT IS PLACED UPON THE POWER OF THE TRIAL
JUDGE, THE CRIMINAL APPEALS RULES GIVE FULL AUTHORITY TO THE CIRCUIT
COURT OF APPEALS TO SET ASIDE OR MODIFY HIS ORDER WHENEVER IT APPEARS
THAT THERE HAS BEEN AN ABUSE OF DISCRETION OR THAT THE INTERESTS OF
JUSTICE REQUIRE IT. 

THE FUNDAMENTAL POLICY OF THE CRIMINAL APPEALS RULES IS THAT AS
SPEEDILY AS POSSIBLE, UPON THE TAKING OF THE APPEAL, THE CIRCUIT COURT
OF APPEALS SHALL BE INVESTED WITH JURISDICTION TO SEE THAT THE APPEAL
IS PROPERLY EXPEDITED AND TO SUPERVISE AND CONTROL ALL PROCEEDINGS ON
THE APPEAL "INCLUDING THE PROCEEDINGS RELATING TO THE PREPARATION OF
THE RECORD ON APPEAL."  FOR THIS PURPOSE THE RULES PROVIDE THAT THE
NOTICE OF THE APPEAL SHALL BE FILED IN DUPLICATE WITH THE CLERK OF THE
TRIAL COURT AND A COPY OF THE NOTICE SHALL BE SERVED UPON THE UNITED
STATES ATTORNEY.  RULE III.  BY RULE IV IT BECOMES THE DUTY OF THE
CLERK OF THE TRIAL COURT IMMEDIATELY TO FORWARD THE DUPLICATE NOTICE OF
APPEAL TO THE CLERK OF THE APPELLATE COURT, TOGETHER WITH A STATEMENT
FROM THE DOCKET ENTRIES IN THE CASE SUBSTANTIALLY AS PROVIDED IN THE
FORM ANNEXED TO THE RULES.  THIS IS A MINISTERIAL DUTY WHICH THE CLERK
OF THE TRIAL COURT MUST PERFORM.  WITH RESPECT TO THE AUTHORITY OF THE
CIRCUIT COURT OF APPEALS, RULE IV PROVIDES: 

"FROM THE TIME OF THE FILING WITH ITS CLERK OF THE DUPLICATE NOTICE
OF APPEAL, THE APPELLATE COURT SHALL, SUBJECT TO THESE RULES, HAVE
SUPERVISION AND CONTROL OF THE PROCEEDINGS ON THE APPEAL, INCLUDING THE
PROCEEDINGS RELATING TO THE PREPARATION OF THE RECORD ON APPEAL. 

"THE APPELLATE COURT MAY AT ANY TIME, UPON FIVE (5) DAYS' NOTICE,
ENTERTAIN A MOTION TO DISMISS THE APPEAL, OR FOR DIRECTIONS TO THE
TRIAL COURT, OR TO VACATE OR MODIFY ANY ORDER MADE BY THE TRIAL COURT
OR BY ANY JUDGE IN RELATION TO THE PROSECUTION OF THE APPEAL, INCLUDING
ANY ORDER FOR THE GRANTING OF BAIL." 

THESE PROVISIONS ARE COMPREHENSIVE.  THE CLAUSE THAT THE APPELLATE
COURT'S SUPERVISION AND CONTROL SHALL BE "SUBJECT TO THESE RULES"
REFERS TO THE RULES GOVERNING THE ACTION OF THE APPELLATE COURT.  TO
MAKE EFFECTIVE THIS SUPERVISION AND CONTROL, ANY MATTER REQUIRING
CORRECTION MAY BE BROUGHT BEFORE THE APPELLATE COURT UPON THE SHORT
NOTICE OF FIVE DAYS.  THUS THERE MAY BE NOT ONLY A MOTION TO DISMISS
THE APPEAL BUT "FOR DIRECTIONS TO THE TRIAL COURT" AND "TO VACATE OR
MODIFY ANY ORDER MADE BY THE TRIAL COURT OR BY ANY JUDGE IN RELATION TO
THE PROSECUTION OF THE APPEAL."  AS THE SUPERVISION AND CONTROL OF THE
PROCEEDINGS ON THE APPEAL EXPRESSLY EMBRACES THE PROCEEDINGS "RELATING
TO THE PREPARATION OF THE RECORD ON APPEAL," IT CANNOT BE SAID THAT AN
ORDER MADE BY THE TRIAL JUDGE FIXING THE TIME FOR THE SETTLEMENT AND
FILING OF A BILL OF EXCEPTIONS IS EXCLUDED.  IT IS, OF COURSE, ASSUMED
THAT THE CIRCUIT COURT OF APPEALS WILL NOT LIGHTLY INTERFERE WITH THE
ACTION OF THE TRIAL JUDGE.  BUT THE RULES APPROPRIATELY PROVIDE FOR THE
CORRECTION OF ANY MISCARRIAGE OF JUSTICE IN THIS RESPECT, AND THE
LODGING OF THE SUPERVISION AND CONTROL WITH THE APPELLATE COURT GIVES
THE HIGHEST ASSURANCE THAT ON THE ONE HAND THE ACTION OF THE TRIAL
JUDGE WILL NOT BE INTERFERED WITH UNNECESSARILY AND ON THE OTHER THAT
NEITHER PARTY WILL BE REMEDILESS WHEN CORRECTIVE ACTION IS REQUIRED. 
FOR EXAMPLE, IT MAY CLEARLY APPEAR ON A SHOWING BY THE GOVERNMENT THAT
THE TIME ALLOWED BY THE TRIAL JUDGE FOR THE FILING OF A BILL OF
EXCEPTIONS IS ALTOGETHER TOO LONG AND THAT, IN THE INTERESTS OF A
REASONABLY PROMPT DISPOSITION OF THE APPEAL, IT SHOULD BE SHORTENED; OR
IT MAY CLEARLY APPEAR THAT THE TIME ALLOWED IS UNREASONABLY SHORT AND
THAT JUSTICE REQUIRES THAT AN EXTENSION SHOULD BE GRANTED.  TO GIVE A
DESIRABLE FLEXIBILITY, THE RULES DO NOT ATTEMPT TO LAY DOWN SPECIFIC
REQUIREMENTS TO MEET VARIOUS SITUATIONS BUT PLACE UPON THE CIRCUIT
COURT OF APPEALS FULL RESPONSIBILITY FOR THE EXERCISE OF A REASONABLE
CONTROL OVER ALL PROCEEDINGS PERTAINING TO THE APPEAL AND ALL THE
ORDERS OF THE TRIAL COURT OR JUDGE IN THAT RELATION. 

THIRD.   - THE CIRCUIT COURT OF APPEALS HAD AUTHORITY TO RETURN THE
BILL OF EXCEPTIONS TO THE TRIAL JUDGE AND TO REQUIRE SUCH CORRECTION AS
MIGHT BE FOUND TO BE APPROPRIATE, INCLUDING THE SETTING FORTH OF THE
EVIDENCE IN CONDENSED AND NARRATIVE FORM.  RULE IX PROVIDES: 

"BILLS OF EXCEPTIONS SHALL CONFORM TO THE PROVISIONS OF RULE 8 OF THE
RULES OF THE SUPREME COURT OF THE UNITED STATES. 

"UPON THE FILING OF THE BILL OF EXCEPTIONS AND ASSIGNMENT OF ERRORS,
THE CLERK OF THE TRIAL COURT SHALL FORTHWITH TRANSMIT THEM, TOGETHER
WITH SUCH MATTERS OF RECORD AS ARE PERTINENT TO THE APPEAL, WITH HIS
CERTIFICATE, TO THE CLERK OF THE APPELLATE COURT, AND THE PAPERS SO
FORWARDED SHALL CONSTITUTE THE RECORD ON APPEAL. 

"THE APPELLATE COURT MAY AT ANY TIME, ON FIVE (5) DAYS' NOTICE,
ENTERTAIN A MOTION BY EITHER PARTY FOR THE CORRECTION, AMPLIFICATION,
OR REDUCTION OF THE RECORD FILED WITH THE APPELLATE COURT, AND MAY
ISSUE SUCH DIRECTIONS TO THE TRIAL COURT, OR TRIAL JUDGE, IN RELATION
THERETO, AS MAY BE APPROPRIATE." 

THE AUTHORITY OF THE CIRCUIT COURT OF APPEALS THUS EXTENDS TO THE
"CORRECTION, AMPLIFICATION, OR REDUCTION" OF THE RECORD ON APPEAL OF
WHICH THE BILL OF EXCEPTIONS IS A PART.  THE APPELLATE COURT IS
AUTHORIZED TO REQUIRE A PROPER BILL OF EXCEPTIONS AND TO GIVE ANY
DIRECTIONS TO THE TRIAL COURT OR TRIAL JUDGE THAT MAY BE NECESSARY TO
ATTAIN THAT END. 

RULE 8 OF THE RULES OF THIS COURT TO WHICH RULE IX REFERS, PROVIDES
(RULE 8, PAR. 2): 

"ONLY SO MUCH OF THE EVIDENCE SHALL BE EMBRACED IN A BILL OF
EXCEPTIONS AS MAY BE NECESSARY TO PRESENT CLEARLY THE QUESTIONS OF LAW
INVOLVED IN THE RULINGS TO WHICH EXCEPTIONS ARE RESERVED, AND SUCH
EVIDENCE AS IS EMBRACED THEREIN SHALL BE SET FORTH IN CONDENSED AND
NARRATIVE FORM, SAVE AS A PROPER UNDERSTANDING OF THE QUESTIONS
PRESENTED MAY REQUIRE THAT PARTS OF IT BE SET FORTH OTHERWISE.  SEE
EQUITY RULE 75B, 226 U.S. APPENDIX, P. 23, AS AMENDED, 286 U.S. 570." 

UNDER EQUITY RULE 75B WE HAVE HELD THAT THE CIRCUIT COURT OF APPEALS
IS AUTHORIZED, WHEN A BILL OF EXCEPTIONS IS PRESENTED TO IT SHOWING
THAT THE REQUIREMENT FOR CONDENSATION OR NARRATION HAS BEEN
TRANSGRESSED, TO REMIT THE TRANSCRIPT TO THE DISTRICT COURT SO THAT A
FURTHER OPPORTUNITY MAY BE HAD TO COMPLY WITH THE EQUITY RULE.  WE ALSO
SAID THAT, IN SUCH A REMISSION, CARE SHOULD BE TAKEN TO REQUIRE THAT
THE PROCEEDINGS UNDER THE RULE BE CONDUCTED WITH REASONABLE DISPATCH. 
BARBER ASPHALT CO. V. STANDARD ASPHALT CO., 275 U.S. 372, 387.  IN THAT
CASE THIS COURT CONCLUDED THAT THE CIRCUIT COURT OF APPEALS HAD PASSED
THE BOUNDS OF SOUND DISCRETION IN AFFIRMING THE DECREE APPEALED FROM,
BECAUSE OF THE VIOLATION OF THE EQUITY RULE, AND UPON PROPER TERMS,
SHOULD HAVE REMITTED THE TRANSCRIPT TO THE DISTRICT COURT FOR
APPROPRIATE REVISION.  NOTHING IN THE CRIMINAL APPEALS RULES, IN
INCORPORATING THE REQUIREMENT OF RULE 8 OF THE RULES OF THIS COURT,
DEPRIVES THE CIRCUIT COURT OF APPEALS OF LIKE AUTHORITY IN DEALING WITH
BILLS OF EXCEPTIONS IN CRIMINAL CASES.  ON THE CONTRARY, RULE IX GIVES
TO THE CIRCUIT COURT OF APPEALS THAT AUTHORITY.  THE RULING IN THE
INSTANT CASE THAT THE TRIAL JUDGE COULD "NO LONGER ACT TO PUT THE
EVIDENCE IN NARRATIVE FORM" AND THAT THE APPELLATE COURT HAD "NO POWER
TO ORDER HIM TO DO SO" IS ERRONEOUS.  THE TRIAL JUDGE COULD ACT UNDER
THE DIRECTION OF THE APPELLATE COURT AND THAT COURT COULD GIVE WHATEVER
DIRECTION THE CASE REQUIRED IN ORDER TO GIVE EFFECT TO THE RULE AS TO
THE PROPER PREPARATION OF THE BILL OF EXCEPTIONS.    FOURTH.   - THE
SUPERVISION AND CONTROL OF THE CIRCUIT COURT OF APPEALS UNDER THE
CRIMINAL APPEALS RULES CALLS FOR THE EXERCISE OF A SOUND JUDICIAL
DISCRETION, AND ITS ACTION WILL NOT BE REVIEWED UNLESS IT APPEARS THAT
ITS DISCRETION HAS BEEN ABUSED.  IN THE INSTANT CASE, DESPITE THE
MISTAKEN VIEW OF ITS AUTHORITY, THE COURT APPEARS TO HAVE RESTED ITS
FINAL CONCLUSION UPON THE GROUND THAT, EVEN IF THE COURT HAD THE POWER
TO GRANT PETITIONER'S REQUEST, THE CIRCUMSTANCES JUSTIFIED ITS DENIAL. 
THE COURT POINTED TO THE FACT THAT PETITIONER HAD FOUR MONTHS TO
PROCURE THE SETTLEMENT OF THE BILL OF EXCEPTIONS AND THE COURT THOUGHT
HIS EXCUSES INSUFFICIENT.  WHILE PETITIONER STRONGLY INSISTS UPON THE
AUTHORITY OF THE APPELLATE COURT, HE APPARENTLY TOOK NO STEPS TO HAVE
THAT AUTHORITY EXERCISED IN HIS FAVOR UNTIL TOWARD THE END OF OCTOBER. 
HE COMPLAINS THAT AT THAT TIME, UPON HIS MOTION FOR AN EXTENSION OF
TIME OR OTHER RELIEF, THE COURT ITSELF SUGGESTED THAT AN APPLICATION
SHOULD BE MADE TO THE TRIAL JUDGE FOR AN ORDER SETTLING THE
STENOGRAPHER'S MINUTES AS THE BILL OF EXCEPTIONS, AND THAT THE CIRCUIT
JUDGES INTIMATED TO THE GOVERNMENT'S COUNSEL THAT OPPOSITION TO THAT
COURSE SHOULD BE WITHDRAWN.  THIS, IT IS SAID, TOOK PLACE ON OCTOBER
27TH.  PETITIONER URGES THAT IN DIRECTING THE SETTLEMENT OF THE BILL OF
EXCEPTIONS IN ITS INAPPROPRIATE FORM HE WAS BUT FOLLOWING THE
SUGGESTION OF THE APPELLATE COURT IN VIEW OF HIS EXIGENCY AND WITH THE
IDEA THAT THE CONDENSATION AND NARRATION OF THE EVIDENCE COULD LATER BE
OBTAINED.  BUT THE CIRCUIT COURT OF APPEALS WAS FULLY ACQUAINTED WITH
ALL THAT HAD TAKEN PLACE.  WHEN THE LATER MOTIONS CAME BEFORE THE
COURT, IT WAS CLEARLY ENTITLED TO REVIEW THE WHOLE MATTER AND REACH A
CONCLUSION AS TO THE PROPER EXERCISE OF ITS DISCRETION.  IT WAS THE
PROVINCE OF THE COURT TO WEIGH THE PETITIONER'S EXCUSES.  IT DID SO AND
FOUND THEM TO BE WITHOUT MERIT.  IN THE LIGHT OF ITS STATEMENT AS TO
THE ULTIMATE GROUND OF ITS ACTION WE CANNOT SAY THAT THE COURT FAILED
TO EXERCISE ITS DISCRETION OR THAT ITS ACTION WAS AN ABUSE OF
DISCRETION.  IN THAT VIEW THE ORDER IS AFFIRMED. 

FN1  SEE WHITE V. UNITED STATES, C.C.A.4TH, 80 F.(2D) 515, 516; YEP
V. UNITED STATES, C.C.A. 10TH, 81 F.(2D) 637; UNITED STATES V.
ADAMOWICZ, C.C.A.2D, 82 F.(2D) 288; GALLAGHER V. UNITED STATES,
C.C.A.8TH, 82 F.(2D) 721; WOLPA V. UNITED STATES, C.C.A.8TH, 84 F.(2D)
829; CUSAMANO V. UNITED STATES, C.C.A.8TH, 85 F.(2D) 132; SPERO V.
UNITED STATES, C.C.A.8TH, 85 F.(2D) 134; SLADE V. UNITED STATES, C.C.A.
10TH, 85 F.(2D) 786; CARY V. UNITED STATES, C.C.A.9TH, 86 F.(2D) 461;
ST. CHARLES V. UNITED STATES, C.C.A.9TH, 86 F.(2D) 463; GODDARD V.
UNITED STATES, C.C.A. 10TH, 86 F.(2D) 884; IN RE LEE, C.C.A.5TH, 87
F.(2D) 142; WAINER V. UNITED STATES, C.C.A.7TH, 87 F.(2D) 77;
FITZPATRICK V. UNITED STATES, C.C.A.7TH, 87 F.(2D) 471; MILLER V.
UNITED STATES, C.C.A.9TH, 88 F.(2D) 102; HIGHTOWER V. UNITED STATES,
C.C.A.9TH, 88 F.(2D) 302; YOUNG V. UNITED STATES, C.C.A. 10TH, 88
F.(2D) 305.  COMPARE FIERMAN V. UNITED STATES, C.C.A. 3D, 84 F.(2D)
968. 
..END :



MUMM V. DECKER & SONS, 301 U.S. 168 


NO. 627.  ARGUED MARCH 29, 1937.  - DECIDED APRIL 26, 1937.  - 86 F.(2D)
77, REVERSED. 


1.  IN A PATENT INFRINGEMENT SUIT, THE BILL SHOULD CONTAIN "A SHORT
AND SIMPLE STATEMENT OF THE ULTIMATE FACTS UPON WHICH THE PLAINTIFF
ASKS RELIEF, OMITTING ANY MERE STATEMENT OF EVIDENCE...."  EQ. RULE
25.  P. 170. 

2.  IN A SUIT FOR INFRINGEMENT OF A PATENT IT IS NOT A PART OF THE
PLAINTIFF'S CASE TO NEGATIVE PRIOR PUBLICATION OR PRIOR USE OR THE
OTHER MATTERS TO WHICH R.S., SECS. 4886 AND 4887 REFER.  P. 171. 

3.  THE ISSUE OF THE PATENT IS ENOUGH TO SHOW, UNTIL THE CONTRARY
APPEARS, THAT ALL THE CONDITIONS UNDER WHICH A DISCOVERY IS PATENTABLE
IN ACCORDANCE WITH THE STATUTES HAVE BEEN MET.  THE BURDEN OF PROVING
WANT OF NOVELTY RESTS UPON THE DEFENDANT, AND IS A HEAVY ONE.  ID. 

MUMM V. JACOB E. DECKER & SONS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 300 U.S. 646, TO REVIEW A DECREE AFFIRMING THE DISMISSAL
OF THE BILL IN A SUIT FOR PATENT INFRINGEMENT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS A QUESTION OF EQUITY PLEADING IN PATENT SUITS. 

THE SUIT IS FOR INFRINGEMENT AND THE QUESTION IS AS TO THE
SUFFICIENCY OF WHAT IS CALLED THE "SHORT" BILL OF COMPLAINT.  THAT IS,
THE BILL ALLEGES THE ISSUE AND OWNERSHIP OF CERTAIN PATENTS, OF WHICH
PROFERT IS MADE, COMPLIANCE WITH ALL THE REQUIREMENTS OF THE STATUTE
AND RULES OF PRACTICE OF THE PATENT OFFICE, AND INFRINGEMENT.  THE BILL
DOES NOT ALLEGE COMPLIANCE WITH THE REQUIREMENTS OF R.S. 4886 AND
4887(35 U.S.C. 31, 32), THAT IS, THAT THE INVENTION, OF EACH OF THE
PATENTS IN SUIT, WAS NOT KNOWN OR USED BY OTHERS IN THIS COUNTRY BEFORE
THE INVENTOR'S INVENTION OR DISCOVERY THEREOF, WAS NOT PATENTED OR
DESCRIBED IN ANY PRINTED PUBLICATION IN THIS OR ANY FOREIGN COUNTRY
BEFORE HIS INVENTION OR DISCOVERY, OR FOR MORE THAN TWO YEARS PRIOR TO
HIS APPLICATION, AND WAS NOT IN PUBLIC USE OR ON SALE IN THIS COUNTRY
FOR MORE THAN TWO YEARS PRIOR TO HIS APPLICATION, THAT THE INVENTION
HAD NOT BEEN ABANDONED, AND THAT NO APPLICATION FOR FOREIGN PATENTS HAD
BEEN FILED MORE THAN TWELVE MONTHS PRIOR TO THE FILING OF THE
APPLICATION IN THIS COUNTRY. 

THE DEFENDANT MOVED FOR DISMISSAL OF THE BILL OF COMPLAINT UPON THE
GROUND OF INSUFFICIENCY OF FACT TO CONSTITUTE A VALID CAUSE OF ACTION
IN EQUITY.  EQUITY RULE 29.  THE DISTRICT COURT GRANTED THE MOTION AND
DIRECTED DISMISSAL SUBJECT TO LEAVE TO AMEND AND, AMENDMENT NOT HAVING
BEEN MADE, A FINAL DECREE WAS ENTERED, WHICH THE CIRCUIT COURT OF
APPEALS AFFIRMED.  86 F.(2D) 77.  BECAUSE OF CONFLICT OF DECISIONS IN
THE CIRCUIT COURTS OF APPEALS, WE GRANTED CERTIORARI.  SEE MOELLER V.
SCRANTON GLASS CO., C.C.A. 3D, 19 F.(2D) 14, SUSTAINING THE "SHORT"
BILL, AND INGRASSIA V. A.C.W. MANUFACTURING CORP., C.C.A.2D, 24 F.(2D)
703, TO THE CONTRARY.  FN1 

PRIOR TO THE ADOPTION OF THE EQUITY RULES IN 1912, IT WAS NECESSARY
FOR THE PLAINTIFF TO ALLEGE NOT ONLY THAT HE WAS THE FIRST, ORIGINAL
AND SOLE INVENTOR BUT ALSO COMPLIANCE WITH THE NEGATIVE REQUIREMENTS OF
R.S. 4886 AND 4887.  SULLIVAN V. REDFIELD, 23 FED. CAS. 357; BLESSING
V. TRAGESER COPPER WORKS, 34 FED. 753; AMERICAN GRAPHOPHONE CO. V.
NATIONAL PHONOGRAPH CO., 127 FED. 349, 350, 351, AND CASES THERE
CITED.  THE PRESENT DIVERSITY OF OPINION HAS ARISEN IN RELATION TO THE
TRUE CONSTRUCTION OF EQUITY RULE 25, WHICH PROVIDES: 

"HEREAFTER IT SHALL BE SUFFICIENT THAT A BILL IN EQUITY SHALL
CONTAIN, IN ADDITION TO THE USUAL CAPTION: 

"FIRST, THE FULL NAME, WHEN KNOWN, OF EACH PLAINTIFF AND DEFENDANT,
AND THE CITIZENSHIP AND RESIDENCE OF EACH PARTY.  IF ANY PARTY BE UNDER
ANY DISABILITY THAT FACT SHALL BE STATED. 

"SECOND, A SHORT AND PLAIN STATEMENT OF THE GROUNDS UPON WHICH THE
COURT'S JURISDICTION DEPENDS. 

"THIRD, A SHORT AND SIMPLE STATEMENT OF THE ULTIMATE FACTS UPON WHICH
THE PLAINTIFF ASKS RELIEF, OMITTING ANY MERE STATEMENT OF
EVIDENCE...." 

THE PURPOSE OF THE EQUITY RULES WAS TO SIMPLIFY EQUITY PLEADING AND
PRACTICE, AND WITH RESPECT TO THE FORMER TO DISPENSE WITH PROLIX AND
REDUNDANT AVERMENTS WHICH HAD MADE EQUITY PLEADING AN OUTSTANDING
EXAMPLE OF UNNECESSARY ELABORATION.  THE NEEDED IMPROVEMENT IN THE
INTEREST OF SIMPLICITY AND CONCISENESS MADE THE TEST NOT WHAT WAS TIME
HONORED IN THE VERBIAGE OF THE PAST BUT WHAT WAS ESSENTIAL TO SET FORTH
THE PLAINTIFF'S CASE.  HIS STATEMENT WAS REQUIRED TO BE "SHORT AND
SIMPLE."  THE "ULTIMATE FACTS" WHICH ARE TO BE STATED ARE MANIFESTLY
DISTINGUISHED FROM EVIDENTIARY FACTS.  WHAT ARE THESE "ULTIMATE
FACTS"?  THEY ARE THE FACTS WHICH THE PLAINTIFF MUST PROVE, THE FACTS
"UPON WHICH THE PLAINTIFF ASKS RELIEF," NOT THE FACTS WHICH THE
DEFENDANT MUST PROVE IN ESTABLISHING AN AFFIRMATIVE DEFENCE.  NO
ANALYSIS OF EQUITY RULE 25 CAN MAKE IT OTHER THAN A REQUIREMENT THAT
THE PLAINTIFF MUST CONCISELY SET FORTH THE ULTIMATE FACTS WHICH ARE
SUFFICIENT TO CONSTITUTE HIS CAUSE OF ACTION. 

THIS CONSTRUCTION IS DECISIVE OF THE PRESENT QUESTION.  IN A SUIT FOR
INFRINGEMENT OF A PATENT IT IS NOT A PART OF THE PLAINTIFF'S CASE TO
NEGATIVE PRIOR PUBLICATION OR PRIOR USE OR THE OTHER MATTERS TO WHICH
R.S. 4886 AND 4887 REFER.  THESE ARE MATTERS OF AFFIRMATIVE DEFENSE. 
AS THIS COURT SAID IN CANTRELL V. WALLICK, 117 U.S. 689, 695, 696:
"FOR THE GRANT OF LETTERS PATENT IS PRIMA FACIE EVIDENCE THAT THE
PATENTEE IS THE FIRST INVENTOR OF THE DEVICE DESCRIBED IN THE LETTERS
PATENT AND OF ITS NOVELTY.  SMITH V. GOODYEAR DENTAL VULCANITE CO., 93
U.S. 486; LEHNBEUTER V. HOLTHAUS, 105 U.S. 94."  THE ISSUE OF THE
PATENT IS ENOUGH TO SHOW, UNTIL THE CONTRARY APPEARS, THAT ALL THE
CONDITIONS UNDER WHICH A DISCOVERY IS PATENTABLE IN ACCORDANCE WITH THE
STATUTES HAVE BEEN MET.  HENCE, THE BURDEN OF PROVING WANT OF NOVELTY
IS UPON HIM WHO AVERS IT.  WALKER ON PATENTS, SEC. 116.  NOT ONLY IS
THE BURDEN TO MAKE GOOD THIS DEFENSE UPON THE PARTY SETTING IT UP, BUT
HIS BURDEN IS A HEAVY ONE, AS IT HAS BEEN HELD THAT "EVERY REASONABLE
DOUBT SHOULD BE RESOLVED AGAINST HIM."  ID., CANTRELL V. WALLICK,
SUPRA; COFFIN V. OGDEN, 18 WALL.  120, 124; BARBED WIRE PATENT, 143
U.S. 275, 284, 285; ADAMSON V. GILLILAND, 242 U.S. 350, 353.  WHAT MUST
BE SO COMPLETELY ESTABLISHED BY THE DEFENDANT CANNOT BE REGARDED AS A
PART OF THE PLAINTIFF'S CASE WHICH IS TO BE SET FORTH IN HIS BILL UNDER
THE EQUITY RULE. 

THE ARGUMENT IS ADVANCED THAT IT MAY BE SALUTARY AS A PRACTICAL
MATTER TO COMPEL THE PLAINTIFF TO NEGATIVE AFFIRMATIVE DEFENSES UNDER
R.S. 4886 AND 4887, AS IT MAY SOMETIMES HAPPEN THAT HE MAY NOT BE ABLE
TO MAKE OATH TO THAT EFFECT.  A SIMILAR REQUIREMENT AS TO POSSIBLE
AFFIRMATIVE DEFENSES MIGHT PROVE TO BE ADVANTAGEOUS TO A DEFENDANT IN
OTHER SUITS THAN THOSE FOR PATENT INFRINGEMENT, BUT THAT POSSIBILITY OF
BENEFIT DOES NOT JUSTIFY A DEPARTURE FROM THE STANDARDS OF CORRECT
PLEADING.  THERE IS NOTHING IN THE EQUITY RULE WHICH INDICATES AN
INTENTION TO PRESERVE THE ANOMALOUS PRACTICE OF COMPELLING A PLAINTIFF
IN A PATENT SUIT TO ALLEGE WHAT HE IS NOT REQUIRED TO PROVE IN ORDER TO
ESTABLISH HIS CASE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS
OPINION.  REVERSED. 

FN1  FOR THE DIVERSE RULINGS OF DISTRICT COURTS, SEE ZENITH
CARBURETOR CO. V. STROMBERG CO., 205 FED. 158; MAXWELL STEEL VAULT CO.
V. NATIONAL CASKET CO., 205 FED. 515; GENERAL BAKELITE CO. V. NIKOLAS,
207 FED. 111; PITTSBURGH WATER HEATER CO. V. BELER WATER HEATER CO.,
222 FED. 950; BAYLEY & SONS V. BRAUNSTEIN CO., 237 FED. 671; SCHAUM &
UHLINGER CO. V. COPLEY PLAZA CO., 243 FED. 924; JOST V. BORDEN CO., 262
FED. 163; AMERICAN LAUNDRY MACHINERY CO. V. PROSPERITY CO., 294 FED.
144; ALUMINUM CORPORATION V. ALLIED CORPORATION, 15 F.(2D) 880; DAVIS
V. MOTIVE PARTS CORP., 16 F.(2D) 148; WHITE V. STUDEBAKER CORPORATION,
30 F.(2D) 835; MCCULLOUGH CO. V. POULTRY PRODUCERS, 50 F.(2D) 945. 
..END :
















SHULMAN V. HOTEL CO., 301 U.S. 172 


NO. 688.  ARGUED APRIL 5, 1937.  - DECIDED APRIL 26, 1937.  - 86 F.(2D)
898, AFFIRMED. 


1.  AN ALLOWANCE BY A STATE COURT FOR LEGAL SERVICES IN FORECLOSURE
PROCEEDINGS, "TO BE PAID IN DUE COURSE OF ADMINISTRATION," BUT WITHOUT
ANY DIRECTION TO PAY, REMAINS SUBJECT TO THE CONTROL OF THAT COURT AND
BECOMES SUBJECT TO THE CONTROL AND REVISION OF THE BANKRUPTCY COURT IN
SUBSEQUENT PROCEEDINGS UNDER SEC. 77B.  P. 173. 

2.  AN ORDER OF THE BANKRUPTCY COURT DISALLOWING THE FEE, IS NOT
APPEALABLE UNDER SEC. 25A OF THE BANKRUPTCY ACT AS FROM A JUDGMENT
REJECTING A CLAIM, NOR UNDER SEC. 24A, AS FROM A DETERMINATION OF A
CONTROVERSY ARISING IN BANKRUPTCY PROCEEDINGS, BUT ONLY UNDER SEC. 24B,
IN THE DISCRETION OF THE APPELLATE COURT.  P. 173. 

SHULMAN ET AL. V. WILSON-SHERIDAN HOTEL CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 300 U.S. 649, TO REVIEW AN ORDER DISMISSING THE APPEAL IN
A CASE UNDER SEC. 77B OF THE BANKRUPTCY ACT. 

PER CURIAM. 

IN A PROCEEDING UNDER SEC. 77B OF THE BANKRUPTCY ACT FOR THE
REORGANIZATION OF THE WILSON-SHERIDAN HOTEL COMPANY, PETITIONERS FILED
A CLAIM FOR $1750.  THE BASIS OF THE CLAIM WAS A BALANCE ALLEGED TO BE
DUE PURSUANT TO AN ALLOWANCE OF $2250 BY A DECREE OF THE STATE COURT IN
A FORECLOSURE SUIT ANTEDATING THE PROCEEDINGS IN THE BANKRUPTCY COURT. 
THAT ALLOWANCE WAS STATED TO BE FOR LEGAL SERVICES RENDERED BY
PETITIONERS AND THE AMOUNT WAS "TO BE PAID IN DUE COURSE OF
ADMINISTRATION."  OF THIS AMOUNT PETITIONERS RECEIVED $500 UNDER A
LATER ORDER OF THE STATE COURT, LEAVING $1750 UNPAID.  UPON THE
CONFIRMATION OF THE PLAN OF REORGANIZATION, THE DISTRICT COURT RESERVED
JURISDICTION TO PASS UPON THE PETITIONERS' CLAIM AT THE TIME OF THE
ALLOWANCE OF FEES AND EXPENSES; AND, ON THE SUBSEQUENT HEARING OF THE
APPLICATION FOR SUCH ALLOWANCES TO BE CHARGED AS COSTS OF
ADMINISTRATION, THE CLAIM WAS DISALLOWED.  AN APPEAL FROM THE ORDER,
NOT HAVING BEEN ALLOWED BY THE CIRCUIT COURT OF APPEALS, WAS DISMISSED
FOR THE WANT OF JURISDICTION.  86 F.(2D) 898.  CERTIORARI WAS GRANTED
MARCH 1, 1937. 

PETITIONERS URGE THAT THE APPEAL SHOULD HAVE BEEN ENTERTAINED UNDER
SEC. 25A OF THE BANKRUPTCY ACT AS AN APPEAL FROM A JUDGMENT REJECTING A
CLAIM OF OVER $500, OR UNDER SEC. 24A AS AN APPEAL FROM A DETERMINATION
OF A CONTROVERSY ARISING IN BANKRUPTCY PROCEEDINGS.  NEITHER CONTENTION
IS SOUND.  THE ALLOWANCE BY THE STATE COURT FOR LEGAL SERVICES FIXED AN
AMOUNT BUT WITHOUT DIRECTION TO PAY, AND THE ALLOWANCE REMAINED SUBJECT
TO THE SUPERVISING CONTROL OF THE COURT UNTIL PAYMENT WAS DIRECTED. 
COMPARE PEOPLE V. ILLINOIS STATE BANK, 312 ILL. 613, 616; 144 N.E. 327;
HUME V. MYERS, 242 FED. 827, 830.  THERE WAS NO FINALITY OF ACTION IN
THIS RESPECT PRIOR TO THE PROCEEDING IN THE BANKRUPTCY COURT AND THE
ALLOWANCE WAS A PURELY ADMINISTRATIVE MATTER UPON WHICH THE LATTER
COURT WAS ENTITLED TO PASS.  THE RECORD SHOWS THAT PETITIONERS' CLAIM
WAS PRESSED, HEARD AND DETERMINED AS ONE BELONGING IN THAT CATEGORY. 

THE CASE OF DUPARQUET CO. V. EVANS, 297 U.S. 216, IS NOT IN POINT. 
THERE IS NO QUESTION HERE AS TO THE JURISDICTION OF THE DISTRICT COURT
TO ENTERTAIN THE PROCEEDING FOR REORGANIZATION.  THE ORDER WAS MADE IN
THE EXERCISE OF THE GENERAL JURISDICTION CONFERRED BY SEC. 77 BA) WHICH
EMBRACED THE AUTHORITY TO PASS UPON FEES AND EXPENSES INCIDENT TO
ADMINISTRATION, INCLUDING CLAIMS SUCH AS THE PRESENT ONE FOR LEGAL
SERVICES RENDERED IN THE PRIOR SUIT IN THE STATE COURT.  COMPARE GROSS
V. IRVING TRUST CO., 289 U.S. 342, 345. 

APPEAL COULD BE TAKEN ONLY UNDER SEC. 24B, IN THE DISCRETION OF THE
APPELLATE COURT.  SEE WINGERT V. SMEAD, 70 F.(2D) 351; IN RE NEW YORK
INVESTORS, INC., 79 F.(2D) 179; MEYER V. KENMORE HOTEL CO., 297 U.S.
160, 166.  THE ORDER OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 
..END :
























ALASKA PACKERS V. PILLSBURY, 301 U.S. 174 


NO. 558.  ARGUED MARCH 9, 1937.  - DECIDED APRIL 26, 1937.  - 78 F.(2D)
587, REVERSED. 


1.  THE RULE OF THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT
WHICH WOULD PERMIT AN APPEAL TO BE TAKEN IN ADMIRALTY BY SIMPLY FILING
IN THE OFFICE OF THE CLERK OF THE DISTRICT COURT, AND SERVING ON THE
PROCTOR FOR THE ADVERSE PARTY, A NOTICE OF APPEAL, IS IN CONFLICT WITH
SEC. 8(C) OF THE ACT OF FEBRUARY 13, 1925; 28 U.S.C. 230, WHICH, IN
ADMIRALTY AS IN EQUITY CASES, REQUIRES AN APPLICATION AND JUDICIAL
ALLOWANCE.  P. 175. 

2.  A RULE OF COURT IN CONFLICT WITH A STATUTE IS VOID.  P. 177. 

ALASKA PACKERS ASSN. V. PILLSBURY, DEPUTY COMMISSIONER, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 299 U.S. 538, TO REVIEW AN ORDER OF THE CIRCUIT COURT OF
APPEALS OVERRULING A MOTION TO DISMISS AN APPEAL IN ADMIRALTY.  THAT
COURT'S DECISION ON THE MERITS WAS NOT INCLUDED FOR CONSIDERATION IN
THE ORDER GRANTING CERTIORARI. 

MR. JUSTICE VAN DEVANTER DELIVERED THE OPINION OF THE COURT. 

THE QUESTION HERE PRESENTED IS WHETHER AN APPEAL TO A CIRCUIT COURT
OF APPEALS FROM A DECREE IN ADMIRALTY IN A DISTRICT COURT MAY BE TAKEN
BY SIMPLY FILING IN THE OFFICE OF THE CLERK OF THE DISTRICT COURT, AND
SERVING ON THE PROCTOR OF THE ADVERSE PARTY, A NOTICE OF APPEAL.  IN
THIS CASE THE CIRCUIT COURT OF APPEALS, IN DEFERENCE TO A RULE ADOPTED
BY IT IN 1900 AND READOPTED IN 1928, SUSTAINED AN APPEAL SO TAKEN AND
OVERRULED THE APPELLEE'S CONTENTION THAT THE RULE IS IN CONFLICT WITH
SEC. 8(C) OF THE ACT OF FEBRUARY 13, 1925, C. 229, 43 STAT. 936, 940;
28 U.S.C. SEC. 230; WHICH PROVIDES: 

"NO WRIT OF ERROR OR APPEAL INTENDED TO BRING ANY JUDGMENT OR DECREE
BEFORE A CIRCUIT COURT OF APPEALS FOR REVIEW SHALL BE ALLOWED UNLESS
APPLICATION THEREFOR BE DULY MADE WITHIN THREE MONTHS AFTER THE ENTRY
OF SUCH JUDGMENT OR DECREE." 

WE ARE OF OPINION THAT THE STATUTE IS BOTH APPLICABLE AND
CONTROLLING. 

PRIOR TO THE CREATION OF THE CIRCUIT COURTS OF APPEALS THE RECOGNIZED
MODE OF TAKING AN APPEAL FROM A DECREE IN ADMIRALTY, AS WELL AS FROM A
DECREE IN EQUITY, WAS BY MAKING APPLICATION TO THE COURT RENDERING THE
DECREE, OR TO A JUDGE OR JUSTICE, AND OBTAINING AN ALLOWANCE OF AN
APPEAL.  THE AUTHORIZED PROCEDURE IN THIS REGARD IS SHOWN IN BARREL V.
TRANSPORTATION CO., 3 WALL.  44, WHERE AN APPEAL IN ADMIRALTY WAS
SOUGHT TO BE TAKEN BY SIMPLY FILING A PETITION IN THE OFFICE OF THE
CLERK OF THE COURT.  THIS COURT DISMISSED THE APPEAL, SAYING: 

"THE PROCEEDING IN THE CASE IS NOT WARRANTED BY ANY ACT OF CONGRESS,
AND WE HAVE NO AUTHORITY TO ACT ON SUCH A PETITION.  THE FILING OF IT
IN THE CLERK'S OFFICE, EVEN IF IT COULD BE REGARDED AS ADDRESSED TO THE
CIRCUIT COURT, WOULD BE OF NO AVAIL, UNLESS ACCOMPANIED BY AN ALLOWANCE
OF AN APPEAL BY THAT COURT; AND IN THE CASE BEFORE US THERE WAS NO
ALLOWANCE." 

THE ACT CREATING THE CIRCUIT COURTS OF APPEALS  FN1 AND INVESTING
THEM WITH STATED APPELLATE JURISDICTION, INCLUDING APPEALS IN
ADMIRALTY, MADE NO CHANGE IN THE PRIOR PROCEDURE.  ON THE CONTRARY,
SEC. 11 OF THAT ACT PROVIDED: 

"AND ALL PROVISIONS OF LAW NOW IN FORCE REGULATING THE METHODS AND
SYSTEM OF REVIEW, THROUGH APPEALS OR WRITS OF ERROR, SHALL REGULATE THE
METHODS AND SYSTEM OF APPEALS AND WRITS OF ERROR PROVIDED FOR IN THIS
ACT IN RESPECT OF THE CIRCUIT COURTS OF APPEALS, INCLUDING ALL
PROVISIONS FOR BONDS OR OTHER SECURITIES TO BE REQUIRED AND TAKEN ON
SUCH APPEALS AND WRITS OF ERROR, AND ANY JUDGE OF THE CIRCUIT COURTS OF
APPEALS, IN RESPECT OF CASES BROUGHT OR TO BE BROUGHT TO THAT COURT,
SHALL HAVE THE SAME POWERS AND DUTIES AS TO THE ALLOWANCE OF APPEALS OR
WRITS OF ERROR, AND THE CONDITIONS OF SUCH ALLOWANCE, AS NOW BY LAW
BELONG TO THE JUSTICES OR JUDGES IN RESPECT OF THE EXISTING COURTS OF
THE UNITED STATES RESPECTIVELY."  FN2 

THE REASONS FOR REQUIRING THAT AN APPEAL BE DULY APPLIED FOR AND
ALLOWED ARE THAT THERE MAY BE SOME ASSURANCE THAT THE SUIT IS ONE IN
WHICH THERE MAY BE A REVIEW IN THE CIRCUIT COURT OF APPEALS; THAT THE
DECREE IS OF SUCH FINALITY OR CHARACTER THAT IT MAY BE REEXAMINED ON
APPEAL; AND THAT APPROPRIATE SECURITY FOR COSTS MAY BE TAKEN WHERE THE
APPELLANT IS NOT BY LAW EXEMPTED FROM GIVING SUCH SECURITY.  FN3  IN
THIS WAY IMPROVIDENT AND UNAUTHORIZED APPEALS ARE PREVENTED.  WHILE AN
APPEAL IN A PROPER CASE IS MATTER OF RIGHT THE QUESTION WHETHER THE
CASE IS A PROPER ONE UNDER THE LAW REGULATING APPEALS IS NOT LEFT TO
THE APPELLANT, BUT IS TO BE EXAMINED AND PRIMARILY DETERMINED BY THE
COURT OR JUDGE TO WHOM THE APPLICATION IS TO BE MADE.  THE REASONS FOR
THUS CONDITIONING THE RIGHT OF APPEAL HAVE THE SAME APPLICATION TO
DECREES IN ADMIRALTY THAT THEY HAVE TO DECREES IN EQUITY AND JUDGMENTS
AT LAW; AND THE ACT OF 1925 INCLUDES ONE AS MUCH AS ANOTHER, FOR IT
SAYS:  "NO  ...  APPEAL INTENDED TO BRING ANY JUDGMENT OR DECREE BEFORE
A CIRCUIT COURT OF APPEALS FOR REVIEW SHALL BE ALLOWED UNLESS
APPLICATION THEREFOR BE DULY MADE."  IN ALL OF THE CIRCUITS OTHER THAN
THE ONE IN WHICH THE DECISION NOW UNDER REVIEW WAS MADE FULL EFFECT IS
GIVEN TO THIS REQUIREMENT.  IN THE ONE CIRCUIT A RULE EXISTS WHEREBY
APPEALS IN ADMIRALTY ARE EXCEPTED.  BUT THAT RULE CONTRAVENES THE
STATUTE AND HAS NO FORCE, FOR THE POWER OF A COURT TO MAKE RULES
NECESSARILY IS CONFINED TO SUCH AS ARE CONSISTENT WITH CONTROLLING
LAWS. 

IT FOLLOWS THAT THE CIRCUIT COURT OF APPEALS WAS WITHOUT JURISDICTION
TO ENTERTAIN THE ATTEMPTED APPEAL.  DECREE REVERSED. 

FN1  ACT OF MARCH 3, 1891, C. 517, 26 STAT. 826. 

FN2  SEE TITLE 28, U.S.C., SEC. 228. 

FN3  SEE BARTEMEYER V. IOWA, 14 WALL.  26, 27; HAVNOR V. NEW YORK,
170 U.S. 408, 410; IRELAND V. WOODS, 246 U.S. 323, 328. 
..END :







NAT. FERTILIZER ASSN. V. BRADLEY, 301 U.S. 178 


NO. 731.  ARGUED APRIL 5, 1937.  - DECIDED APRIL 26, 1937.  - 18
F.SUPP.  263, AFFIRMED. 


1.  A FEDERAL COURT WILL NOT ENJOIN THE ENFORCEMENT OF A STATE LAW
WHICH HAS NOT BEEN CONSTRUED BY THE ENFORCING OFFICERS NOR BY THE
SUPREME COURT OF THE STATE, AND WHICH IS SUSCEPTIBLE OF A CONSTRUCTION
THAT WOULD BRING IT WITHIN THE POLICE POWER OF THE STATE.  P. 180. 

2.  THE RIGHT OF A MANUFACTURER TO MAINTAIN SECRECY AS TO HIS
COMPOUNDS AND PROCESSES IS SUBJECT TO THE RIGHT OF THE STATE, IN THE
EXERCISE OF ITS POLICE POWER AND IN PROMOTION OF FAIR DEALING, TO
REQUIRE THAT THE NATURE OF THE PRODUCT OFFERED FOR SALE BE FAIRLY SET
FORTH.  P. 182. 

3.  THE REQUIREMENT MAY BE EXTENDED TO THE SALE OF PRODUCTS
MANUFACTURED PRIOR TO THE PASSAGE OF THE LEGISLATION.  P. 182. 

NATIONAL FERTILIZER ASSN., INC. ET AL. V. BRADLEY ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF SOUTH CAROLINA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES, DENYING
AN INJUNCTION AND DISMISSING THE BILL IN A SUIT BY AN ASSOCIATION
REPRESENTING MANUFACTURERS OF COMMERCIAL FERTILIZER TO ENJOIN THE
ENFORCEMENT OF A STATE LAW REQUIRING THAT ON THE CONTAINERS IN WHICH
MIXED FERTILIZER IS SOLD THERE SHALL BE DISCLOSED THE POUNDAGES AND
ANALYSES OF MATERIALS USED IN THE MANUFACTURE.  THE DEFENDANTS WERE THE
MEMBERS OF A STATE BOARD AND THE STATE ATTORNEY GENERAL. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

PRIOR TO 1936 THE LAWS OF SOUTH CAROLINA REQUIRED THAT MANUFACTURERS,
BEFORE OFFERING MIXED COMMERCIAL FERTILIZER FOR SALE, SHOULD AFFIX TO
EACH CONTAINER A TAG DISCLOSING CERTAIN FACTS CONCERNING THE CONTENTS. 
CODE OF LAWS, 1932, SECS. 6363-6385.  AN ACT APPROVED APRIL 6, 1936,
ADDED TO SEC. 6367 THE FOLLOWING SO-CALLED "OPEN FORMULA" AMENDMENT, TO
BECOME EFFECTIVE AUGUST 1, 1936. 

"(B)  THE AMOUNT AND ANALYSIS OF EACH MATERIAL, OR SOURCE, OF EACH
PLANT FOOD ELEMENT USED IN MANUFACTURE, OF A FERTILIZER MIXTURE
CONTAINING TWO OR MORE PLANT FOOD ELEMENTS BE STATED ON A TAG ATTACHED
TO EACH SACK OR CONTAINER, SUCH AMOUNT OF MATERIAL TO BE STATED IN
POUNDS PER HUNDRED POUNDS OF MIXTURE CONTAINED IN THE SACK OR OTHER
CONTAINER.  THIS STATEMENT OF POUNDS OF MATERIALS USED IN THE
MANUFACTURE OF A FERTILIZER MIXTURE SHALL BE IN ADDITION TO THE
STATEMENT OF CHEMICAL ANALYSIS AS REQUIRED BY SECTION NO. 6366 OF THE
CODE OF LAWS OF SOUTH CAROLINA, 1932." 


JULY 22, 1936, BEFORE THE OFFICERS CHARGED WITH ENFORCEMENT OF
STATUTES RELATING TO FERTILIZERS FORMULATED ANY RULE OR INSTRUCTION
REGARDING THE "OPEN FORMULA" AMENDMENT, AND BEFORE THE SUPREME COURT
HAD CONSIDERED OR CONSTRUED IT, MANY MANUFACTURERS FILED THEIR JOINT
BILL IN THE COURT BELOW, WHEREIN THEY ALLEGED THE AMENDMENT OFFENDED
THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION AND ASKED FOR AN
INJUNCTION.  AFTER ANSWER, TESTIMONY WAS PRESENTED BY BOTH SIDES. 
THREE JUDGES HEARD THE CAUSE; FOUND THE FACTS; POINTED OUT A POSSIBLE
CONSTRUCTION UNDER WHICH THEY HELD THE ACT WOULD NOT BE ARBITRARY OR
OPPRESSIVE; AND DISMISSED THE BILL.  THE MATTER IS HERE BY APPEAL. 

AS THE ENACTMENT HAS NOT BEEN CONSTRUED BY THE ENFORCING OFFICERS NOR
INTERPRETED BY THE SUPREME COURT OF THE STATE, IT IS IMPOSSIBLE TO SAY
WHAT ULTIMATELY WILL BE DEMANDED OF THE COMPLAINANTS.  THE COURT BELOW
WAS OF THE OPINION THAT, REASONABLY CONSTRUED, THE ACT WOULD BE
SATISFIED IF THE TAG UPON A GIVEN CONTAINER REVEALED THE GENERAL
AVERAGE OF THE DESIGNATED ITEMS WHICH WENT INTO THE STORAGE OR CURING
PILE OF FERTILIZER AT THE FACTORY FROM WHICH SUCH CONTAINER WAS
FILLED.  "THESE PILES RANGE FROM 100 TONS UP TO 5,000 TONS."  THIS
INTERPRETATION IS, AT LEAST, PERMISSIBLE.  SO CONSTRUED, WE CANNOT SAY
THAT THE ACT IS CLEARLY ARBITRARY, UNREASONABLE AND BEYOND THE POLICE
POWER OF THE STATE.  APPARENTLY IT CAN BE COMPLIED WITH WITHOUT
PROHIBITIVE EXPENSE.  FN2 

IN RESPONSE TO THE ASSERTION THAT COMPLIANCE WITH THE "OPEN FORMULA"
AMENDMENT WOULD REQUIRE COMPLAINANTS TO REVEAL SECRET FORMULAS AND THUS
UNLAWFULLY DEPRIVE THEM OF PROPERTY, IT IS ENOUGH TO REFER TO CORN
PRODUCTS REFINING CO. V. EDDY, 249 U.S. 427, 431-432.  "THE RIGHT OF A
MANUFACTURER TO MAINTAIN SECRECY AS TO HIS COMPOUNDS AND PROCESSES MUST
BE HELD SUBJECT TO THE RIGHT OF THE STATE, IN THE EXERCISE OF ITS
POLICE POWER AND IN PROMOTION OF FAIR DEALING, TO REQUIRE THAT THE
NATURE OF THE PRODUCT BE FAIRLY SET FORTH."  AND THE SAME PRINCIPLE IS
BROAD ENOUGH TO MEET THE FURTHER CLAIM OF RIGHT TO SELL PRODUCTS
MANUFACTURED PRIOR TO THE PASSAGE OF THE AMENDING ACT OF 1936. 

WE FIND NO MATERIAL ERROR.  THE CHALLENGED DECREE MUST BE AFFIRMED. 

FN1  SEC. 6366.  CONTENTS OF LABELS.  - EVERY PERSON OR CORPORATION,
BEFORE SELLING OR OFFERING FOR SALE IN THIS STATE ANY COMMERCIAL
FERTILIZER OR FERTILIZING MATERIAL SHALL BRAND ON EACH BAG OR PACKAGE
THE BRAND NAME OF THE FERTILIZER, THE WEIGHT OF THE PACKAGE, THE NAME
AND ADDRESS OF THE MANUFACTURER, AND THE MINIMUM PERCENTAGE ONLY
GUARANTEED TO BE PRESENT OF AVAILABLE PHOSPHORIC ACID, OF NITROGEN
(AMMONIA EQUIVALENT), AND OF POTASH SOLUBLE IN WATER.  THE ITEMS SHALL
BE PRINTED ON THE PACKAGE IN THE FOLLOWING ORDER: 

WEIGHT OF EACH PACKAGE. 

BRAND NAME OR TRADE-MARK. 

GUARANTEED ANALYSIS:

AVAILABLE PHOSPHORIC ACID........................PER CENT.

AMMONIA EQUIVALENT OF NITROGEN...................PER CENT.

POTASH SOLUBLE IN WATER..........................PER CENT. 

NAME AND ADDRESS OF THE MANUFACTURER. 

IN ADDITION TO THE ABOVE THERE MUST BE PRINTED ON THE PACKAGE, OR ON
A TAG ATTACHED THERETO, THE PER CENT. OF WATER SOLUBLE NITROGEN
(AMMONIA EQUIVALENT), GUARANTEED, WITHIN SUCH LIMITS AS THE SAID BOARD
OF TRUSTEES, OR A COMMITTEE THEREOF, MAY PRESCRIBE.  AND, IN ADDITION,
FURTHER, IT MUST BE STATED WHETHER THE POTASH IS DERIVED FROM MURIATE
OR SULPHATE.  AND, IN ADDITION, FURTHER, THE PER CENT. OF BORAX OR
OTHER SUBSTANCE, OR SUBSTANCES, INJURIOUS TO PLANTS MUST BE STATED, IF
IN EXCESS OF LIMITS PRESCRIBED BY THE BOARD OF TRUSTEES, OR A COMMITTEE
THEREOF:  PROVIDED, THE SAID BOARD OF TRUSTEES, OR A COMMITTEE THEREOF,
SHALL HAVE POWER TO DIRECT IN WHAT MANNER THE BRANDING AND LABELING
SHALL BE DONE. 

SEC. 6367.  CLASSIFICATION OF MATERIALS - LABELING - SUBSTITUTION -
SPECIAL CONTRACTS - DAMAGES AND PENALTY.  - (A)  THE MATERIALS USED IN
THE MANUFACTURE AND MIXING OF ALL FERTILIZERS SUPPLYING NITROGEN OR
AMMONIA, AND OFFERED FOR SALE IN THIS STATE, SHALL BE DIVIDED INTO TWO
CLASSES, NAMELY, WATER-SOLUBLE AND AVAILABLE WATER-INSOLUBLE; AND THE
PERCENTAGE OF NITROGEN OR AMMONIA COMING FROM EITHER OF THESE TWO
CLASSES SHALL BE GUARANTEED, BUT ALLOWING A VARIABILITY OF ONE-FOURTH
OF ONE PER CENT. FOR GOODS CONTAINING TWO PER CENT. OF AMMONIA OR
UNDER, AND A VARIABILITY OF ONE-THIRD OF ONE PER CENT FOR GOODS
CONTAINING TWO AND THREE PER CENT. AMMONIA, AND A VARIABILITY OF ONE
HALF OF ONE PER CENT. FOR GOODS CONTAINING OVER THREE PER CENT.
AMMONIA, AND THE SEVERAL MATERIALS IN EACH OF THESE TWO CLASSES SHALL
BE NAMED ON THE BAG OR ON A TAG ATTACHED THERETO, AND IT SHALL BE
PERMISSIBLE FOR THE MANUFACTURER TO SUBSTITUTE ONE OR MORE MATERIALS IN
EITHER CLASS OF APPROXIMATELY EQUAL AGRICULTURAL VALUE FOR OTHER
MATERIALS OF THE SAME CLASS: PROVIDED:  THAT WHERE THERE IS A CONTRACT
OF AGREEMENT BETWEEN A MANUFACTURER AND A PURCHASER OF FERTILIZER THAT
THE FERTILIZER WILL BE MANUFACTURED BY THE USE OF CERTAIN DEFINITE
SOURCES AND AMOUNTS OF AMMONIA AND POTASH, THE FERTILIZER MUST BE
MANUFACTURED FROM THESE MATERIALS WITHOUT SUBSTITUTION OF OTHER
MATERIALS AND FAILURE ON THE PART OF THE MANUFACTURER TO COMPLY WITH
THIS REQUIREMENT SHALL RENDER THE MANUFACTURER LIABLE TO THE PURCHASER
FOR DAMAGES AS IT IS NOW PRESCRIBED BY LAW, AND IN ADDITION THERETO THE
MANUFACTURER SHALL PAY TO THE PURCHASER A PENALTY EQUAL TO ONE-FOURTH
OF THE PURCHASE PRICE OF SUCH FERTILIZER. 

(B)  THE AMOUNT AND ANALYSIS OF EACH MATERIAL, OR SOURCE, OF EACH
PLANT FOOD ELEMENT USED IN MANUFACTURE, OF A FERTILIZER MIXTURE
CONTAINING TWO OR MORE PLANT FOOD ELEMENTS BE STATED ON A TAG ATTACHED
TO EACH SACK OR CONTAINER, SUCH AMOUNT OF MATERIAL TO BE STATED IN
POUNDS PER HUNDRED POUNDS OF MIXTURE CONTAINED IN THE SACK OR OTHER
CONTAINER.  THIS STATEMENT OF POUNDS OF MATERIALS USED IN THE
MANUFACTURE OF A FERTILIZER MIXTURE SHALL BE IN ADDITION TO THE
STATEMENT OF CHEMICAL ANALYSIS AS REQUIRED BY SECTION NO. 6366 OF THE
CODE OF LAWS OF SOUTH CAROLINA, 1932. 

FN2  FINDINGS OF FACT AS TO REASONABLENESS OF REGULATIONS - NO. VI. 

"WITH THE FOREGOING ILLUSTRATION OF THE APPLICATION OF THE
REQUIREMENTS OF THE NEW LAW TO THE ACTUAL FACTS OF AGRICULTURE, WE HAVE
NO HESITATION IN FINDING AS A FACT THAT THE REQUIREMENTS OF THE 1936
AMENDMENT DO MOST POSITIVELY TEND TO MEET AN ACTUALLY EXISTING NEED AND
TO SERVE THE PURPOSE WHICH THE LEGISLATURE CLEARLY HAD IN MIND; NAMELY,
TO SO REGULATE THE FERTILIZER BUSINESS AS TO GIVE THE FARMER THAT
INFORMATION WHICH WOULD TEND TO AID IN THE CARRYING ON OF THE MAJOR
INDUSTRY OF THE STATE OF SOUTH CAROLINA." 

FINDINGS OF FACT AS TO INFORMATION REQUIRED BY THE ACT, &C. - NO.
II. 

"THE WORD 'MIXTURE' HAS UNDER THE TESTIMONY COME TO HAVE A RATHER
DEFINITE MEANING IN THE FERTILIZER BUSINESS.  IT RELATES NOT SO MUCH TO
THE FINISHED PRODUCT IN THE SACK AS IT DOES TO THE ACTUAL PILE OF
FERTILIZER AS MIXED IN THE MANUFACTURING PLANT AND LEFT TO CURE BEFORE
BEING FINALLY GROUND UP AND PUT INTO SACKS.  THE TESTIMONY DEALS FULLY
WITH THE ACTUAL PROCESSES FOLLOWED IN THE MIXING OF THE FERTILIZER, AND
THE GREATER WEIGHT OF THE TESTIMONY SUGGESTS THAT THE AVERAGE UNIT OF
MIXTURE AS ACTUALLY MADE BY THE LARGER FERTILIZER COMPANIES WHEN MAKING
A TYPICAL FERTILIZER FOR SALE IN LARGE QUANTITIES IS ABOUT FIVE
THOUSAND TONS.  UNDER THE TESTIMONY WE FIND THAT IN SOME CASES A STRICT
COMPLIANCE WITH THE STATUTE WILL PROBABLY CALL FOR A LARGE WAREHOUSE
AND THE INAUGURATION OF A MORE ELABORATE SYSTEM OF BOOKKEEPING AS TO
THE EXACT MATERIALS PUT INTO EACH MIXTURE BUT THESE INCREASED EXPENSES
WILL NOT BE SO GREAT AS TO RENDER THE COST OF THE MANUFACTURE OF THE
FINISHED PRODUCT PROHIBITIVE AND OUT OF LINE WITH THE PROBABLE INCREASE
OF PRICES WHICH THE ACTUAL TRADE WOULD BEAR." 
..END :














BOURJOIS, INC. V. CHAPMAN, 301 U.S. 183 


NO. 534.  ARGUED MARCH 5, 1937.  - DECIDED APRIL 26, 1937.  - AFFIRMED. 


1.  A STATE LAW REQUIRING, AS A HEALTH MEASURE, THAT COSMETIC
PREPARATIONS BE REGISTERED BEFORE BEING OFFERED FOR SALE IN THE STATE,
WHICH APPLIES ONLY TO THOSE WHO DEAL IN OR APPLY THE PREPARATIONS
WITHIN THE STATE, AND WHICH DOES NOT DEMAND THAT THE APPLICATION FOR
REGISTRATION BE MADE BY THE MANUFACTURER OR PROPRIETOR BUT PERMITS ANY
PERSON INTERESTED TO MAKE IT, DOES NOT INFRINGE THE RIGHTS, UNDER THE
COMMERCE CLAUSE, OF ONE WHOSE PREPARATIONS ARE MANUFACTURED IN ANOTHER
STATE AND THERE SOLD TO CUSTOMERS WHO DEAL IN OR APPLY THEM IN THE
STATE REQUIRING THE REGISTRATION.  P. 186. 

2.  A STATE INSPECTION FEE WILL NOT BE ADJUDGED A DIRECT BURDEN ON
INTERSTATE COMMERCE WHERE NOT UNREASONABLE ON ITS FACE AND WHERE,
BECAUSE OF THE RECENT ADOPTION OF THE REGULATION INVOLVED, IT IS
IMPOSSIBLE TO KNOW WHETHER IT WILL YIELD IN EXCESS OF THE
ADMINISTRATIVE REQUIREMENT.  P. 187. 

3.  WHERE INTERSTATE COMMERCE IS ONLY INDIRECTLY AFFECTED, THE BURDEN
OF PROVING THAT STATE INSPECTION FEES WILL ACTUALLY BURDEN SUCH
COMMERCE RESTS UPON HIM WHO CHALLENGES THE LEGISLATION.  THE MERE FACT
THAT THE FEES IMPOSED MIGHT EXCEED THE COST OF INSPECTION IS
IMMATERIAL.  P. 187. 

4.  A STATE STATUTE IMPOSING FEES FOR THE ENFORCEMENT OF A REGULATION
AFFECTING BUT ONE CLASS OF ACTIVITY, THE FEES AND EXPENDITURES BEING
ENTERED IN A SEPARATE ACCOUNT, PRESENTS NO QUESTION UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.  P. 188. 

5.  A MAINE STATUTE REQUIRES THAT COSMETICS OFFERED FOR SALE IN THE
STATE BE REGISTERED, PENALIZES SALE WITHOUT REGISTRATION, AND EMPOWERS
A BOARD TO "REGULATE OR TO REFUSE THE ISSUANCE OF CERTIFICATES OF
REGISTRATION OR TO PROHIBIT THE SALE OF COSMETIC PREPARATIONS WHICH IN
ITS JUDGMENT CONTAIN INJURIOUS SUBSTANCES IN SUCH AMOUNTS AS TO BE
POISONOUS, INJURIOUS OR DETRIMENTAL TO THE PERSON."  HELD: 

(1)  IT WILL NOT BE ASSUMED, AS A BASIS FOR ATTACK UNDER THE
FOURTEENTH AMENDMENT OR THE STATE CONSTITUTION, THAT ONE WHO HAS NOT
APPLIED FOR IT WILL BE REFUSED A CERTIFICATE, OR THAT THE BOARD WILL
DENY ANY RIGHT TO WHICH HE IS ENTITLED.  P. 188. 

(2)  THE DELEGATION OF POWER TO THE BOARD IS NOT OBNOXIOUS TO THE
STATE CONSTITUTION OR THE FOURTEENTH AMENDMENT.  P. 189. 

(3)  DUE PROCESS IS SAFEGUARDED BY A PROVISION OF THE STATUTE FOR
JUDICIAL REVIEW WHEN THE BOARD REFUSES A CERTIFICATE.  ID. 

(4)  THE QUESTION WHETHER PROVISIONS OF THE STATUTE CONCERNING
SEIZURE AND FORFEITURE OF UNREGISTERED COSMETICS VIOLATE THE
CONSTITUTION OF MAINE DOES NOT ARISE IN THE CASE OF A MANUFACTURER
WHOSE GOODS ARE DISPOSED OF TO OTHERS IN ANOTHER STATE BEFORE THEY
ENTER MAINE.  P. 190. 

BOURJOIS, INC. V. CHAPMAN ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF MAINE. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES,
DISMISSING THE BILL IN A SUIT TO ENJOIN ENFORCEMENT OF A STATUTE
REQUIRING REGISTRATION OF COSMETIC PREPARATIONS OFFERED FOR SALE, ETC. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

BOURJOIS, INC., A NEW YORK CORPORATION, BROUGHT, IN THE FEDERAL COURT
FOR MAINE, THIS SUIT SEEKING TO ENJOIN, BOTH TEMPORARILY AND
PERMANENTLY, THE ENFORCEMENT OF CHAPTER 109 OF THE PUBLIC LAWS OF
MAINE, 1935, ENTITLED "AN ACT FOR THE REGULATION OF COSMETICS."  THE
BILL WAS FILED BEFORE JANUARY 1, 1936, THE EFFECTIVE DATE OF THE ACT. 
THE ATTORNEY GENERAL OF MAINE, THE COMMISSIONER OF HEALTH AND WELFARE
AND THE DIRECTOR OF PUBLIC HEALTH WERE MADE DEFENDANTS.  THE ANSWERS
DENIED THE MATERIAL ALLEGATIONS OF THE BILL.  THE CASE WAS HEARD BEFORE
THREE JUDGES; THE APPLICATION FOR A TEMPORARY INJUNCTION WAS DENIED, ON
THE GROUND THAT PLAINTIFF'S OBJECTIONS WERE PREMATURELY RAISED; AND
LEAVE WAS GRANTED TO RENEW ITS MOTION IF IN ENFORCING THE ACT
INTERSTATE COMMERCE SHOULD BE INTERFERED WITH OR DUE PROCESS DENIED. 
THEREAFTER, A SUPPLEMENTAL BILL AND ANSWER WERE FILED; THE CASE WAS
AGAIN HEARD; THE COURT CONCLUDED THAT THERE WAS BOTH FEDERAL AND
EQUITABLE JURISDICTION; DENIED A MOTION FOR A TEMPORARY INJUNCTION; AND
ENTERED A FINAL DECREE DISMISSING THE BILL.  THE CASE IS HERE ON
APPEAL. 


"REGISTRATION OF COSMETICS.  ON AND AFTER JANUARY 1, 1936 NO PERSON,
FIRM, CORPORATION OR COPARTNERSHIP SHALL HOLD FOR SALE, SELL, OFFER FOR
SALE, IN INTRASTATE COMMERCE, GIVE AWAY, DEAL IN, WITHIN THIS STATE,
SUPPLY OR APPLY IN THE CONDUCT OF A BEAUTY SHOP, BARBER SHOP,
HAIRDRESSING ESTABLISHMENT OR SIMILAR ESTABLISHMENT, ANY COSMETIC
PREPARATION UNLESS THE SAID PREPARATION HAS BEEN REGISTERED WITH AND A
CERTIFICATE OF REGISTRATION SECURED FROM THE DEPARTMENT OF HEALTH AND
WELFARE." 

PUBLIC HEALTH; AND PROVIDES FOR THE ISSUE OF CERTIFICATES OF
REGISTRATION BY THE DEPARTMENT OF HEALTH AND WELFARE "TO THE
MANUFACTURER, PROPRIETOR, OR PRODUCER OF ANY COSMETIC PREPARATION." 
OTHER SECTIONS OF THE ACT CONTAIN ELABORATE PROVISIONS FOR THE SEIZURE
AND FORFEITURE OF "COSMETIC PREPARATIONS KEPT OR DEPOSITED WITHIN THE
STATE INTENDED FOR UNLAWFUL SALE OR USE"; AND FOR IMPOSITION OF FINES
UPON VIOLATORS OF THE STATUTE. 

THE PLAINTIFF MANUFACTURES COSMETICS IN NEW YORK; HAS NO PLACE OF
BUSINESS IN MAINE; AND DOES NOT HOLD, USE, APPLY, OR SELL COSMETICS
WITHIN THAT STATE.  AMONG ITS MANY CUSTOMERS ARE SOME WHOSE PLACES OF
BUSINESS ARE IN MAINE; AND THEIR PURCHASES ARE MADE IN PART ON ORDERS
GIVEN IN MAINE TO TRAVELLING SALESMEN OF THE PLAINTIFF.  BUT NO ORDER
SO GIVEN IS BINDING UNTIL APPROVED BY THE PLAINTIFF IN NEW YORK.  ALL
SHIPMENTS TO MAINE CUSTOMERS ARE MADE FROM NEW YORK; AND THE SALES OF
THE COSMETICS IN MAINE ARE NOT MADE IN THE ORIGINAL PACKAGES, THE LARGE
CONTAINERS IN WHICH THE COSMETICS ARE SHIPPED FROM NEW YORK.  COMPARE
PURITY EXTRACT CO. V. LYNCH, 226 U.S. 192, 201; HEBE CO. V. SHAW, 248
U.S. 297, 304. 

THE PLAINTIFF HAS NOT APPLIED FOR A CERTIFICATE OF REGISTRATION OF
ANY OF ITS PREPARATIONS; AND IT ANNOUNCES THAT IT WILL REFUSE TO DO SO,
BECAUSE THE STATUTE IS VOID UNDER THE FEDERAL AND STATE CONSTITUTIONS. 
SIXTEEN DISTINCT GROUNDS OF INVALIDITY ARE URGED WITH GREAT
EARNESTNESS.  NONE IS WELL FOUNDED.  ONLY A FEW NEED TO BE DISCUSSED. 

FIRST.  MOST PROMINENT IS THE CLAIM THAT THE LEGISLATION VIOLATES THE
COMMERCE CLAUSE.  BY ITS TERMS, THE STATUTE IS LIMITED IN OPERATION TO
INTRASTATE COMMERCE.  IT DOES NOT ATTEMPT TO PROHIBIT OR REGULATE THE
INTRODUCTION OF COSMETICS INTO THE STATE.  IT IS NOT DIRECTED TO
MANUFACTURERS.  IT APPLIES ONLY TO PERSONS WHO DEAL IN COSMETICS, OR
APPLY THEM, WITHIN THE STATE; AND THE PLAINTIFF DOES NOT DO SO.  NO
DOUBT THE PLAINTIFF WILL LOSE ITS MAINE CUSTOMERS UNLESS ITS
PREPARATIONS MAY BE SOLD THERE; AND THEIR SALE WILL BE PROHIBITED
WITHIN THE STATE UNLESS THE PREPARATIONS ARE REGISTERED.  BUT THE STATE
DOES NOT DEMAND THAT THE APPLICATION FOR REGISTRATION BE MADE BY THE
MANUFACTURER OR PROPRIETOR OF THE PREPARATION.  THE DEFENDANTS WHO
ADMINISTER THE STATUTE HAVE CONSTRUED IT AS PERMITTING ANY ONE
INTERESTED TO MAKE THE APPLICATION.  AS SOME COSMETICS MAY BE OF A
CHARACTER TO INJURE THE HEALTH OF THE USERS, THE STATE MAY PROHIBIT THE
SALE IN INTRASTATE COMMERCE OF A PREPARATION UNLESS IT HAS BEEN FOUND,
UPON DUE ENQUIRY, TO BE HARMLESS.  THE FACT THAT PLAINTIFF'S PRODUCTS
ARE MADE IN NEW YORK DOES NOT CONFER IMMUNITY FROM SUCH REGULATION IN
MAINE.  COMPARE MUTUAL FILM CORP. V. HODGES, 236 U.S. 248, 258; ARMOUR
& CO. V. NORTH DAKOTA, 240 U.S. 510, 517; PACIFIC STATES BOX & BASKET
CO. V. WHITE, 296 U.S. 176, 184.  THERE IS NO DISCRIMINATION AGAINST
INTERSTATE COMMERCE, SINCE THE REGULATION APPLIES EQUALLY TO ALL
PREPARATIONS, WHETHER MANUFACTURED WITHIN OR WITHOUT THE STATE OF
MAINE. 

SECOND.  THE PLAINTIFF CONTENDS THAT ITS INTERSTATE COMMERCE IS
DIRECTLY BURDENED, BECAUSE REGISTRATION, WHICH IS INDISPENSABLE TO THE
MAINTENANCE OF ITS TRADE IN MAINE, INVOLVES PAYMENT OF A FEE; THAT ONLY
AN INSPECTION FEE CAN BE JUSTIFIED; AND THAT THE STATE HAS FAILED TO
SHOW THAT THE FEE CHARGED IS NOT IN EXCESS OF THE COST OF INSPECTION. 
PREPARATION, WITH A SIMILAR ANNUAL RENEWAL FEE; AND STIPULATES THAT: 

"FEES RECEIVED UNDER THE PROVISIONS OF THIS ACT SHALL BE USED BY SAID
DEPARTMENT FOR CARRYING OUT THE PURPOSES OF THIS ACT." 

EVEN IF IT HAD BEEN NECESSARY, UNDER THE RULES APPLIED IN FOOTE & CO.
V. STANLEY, 232 U.S. 494, AND GREAT NORTHERN RY. CO. V. WASHINGTON, 300
U.S. 154, FOR THE STATE TO ESTABLISH THAT THE FEES HERE CHARGED ARE NOT
EXCESSIVE, THE STATE MUST BE DEEMED TO HAVE SUSTAINED THAT BURDEN.  THE
FACT THAT THE FEE FOR REGISTRATION IS ONLY 50 CENTS SUGGESTS THAT IT
MAY PROVE INADEQUATE RATHER THAN EXCESSIVE.  THE CASE WAS HEARD SHORTLY
AFTER THE STATUTE BECAME OPERATIVE.  IT WAS OBVIOUSLY IMPOSSIBLE THEN
TO DETERMINE WHETHER THE FEES WOULD PROVE TO BE IN EXCESS OF THE
ADMINISTRATIVE REQUIREMENT, AND IN THIS SITUATION IT IS SUFFICIENT IF
IT IS SHOWN THAT THE CHARGES ARE NOT UNREASONABLE ON THEIR FACE.  AS
WAS SAID IN PATAPSCO GUANO CO. V. BOARD OF AGRICULTURE, 171 U.S. 345,
354, "IF THE RECEIPTS ARE FOUND TO AVERAGE LARGELY MORE THAN ENOUGH TO
PAY THE EXPENSES, THE PRESUMPTION WOULD BE THAT THE LEGISLATURE WOULD
MODERATE THE CHARGE."  SEE RED "C" OIL CO. V. BOARD OF AGRICULTURE, 222
U.S. 380, 393.  HERE, THE STATUTE OPERATES DIRECTLY ONLY UPON
INTRASTATE COMMERCE.  WHERE INTERSTATE COMMERCE IS ONLY INDIRECTLY
AFFECTED, IT RESTS UPON ONE CHALLENGING THE LEGISLATION TO SHOW ACTUAL
UNDUE BURDEN UPON SUCH COMMERCE.  SEE PACIFIC TELEPHONE & TELEGRAPH CO.
V. TAX COMMISSION, 297 U.S. 403.  THE MERE FACT THAT THE FEES IMPOSED
MIGHT EXCEED THE COST OF INSPECTION IS IMMATERIAL.  SEE GENERAL OIL CO.
V. CRAIN, 209 U.S. 211, 231; TEXAS CO. V. BROWN, 258 U.S. 466, 475,
476. 

THE MAINE STATUTE PRESENTS NO QUESTION UNDER THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT SUCH AS WAS DEALT WITH IN GREAT
NORTHERN RY. CO. V. WASHINGTON, SUPRA.  THE STATUTE PROVIDES THAT THE
FEES COLLECTED SHALL BE DEVOTED SOLELY TO THE ENFORCEMENT OF THIS ACT;
AND THE ACT DIRECTLY REGULATES BUT ONE CLASS OF ACTIVITY.  THE RECORD
SHOWS THAT THE STATE TREASURER HAS SET UP A SEPARATE ACCOUNT TO WHICH
ALL COSMETIC FEES ARE CREDITED, AND AGAINST WHICH ARE TO BE CHARGED
ONLY THE EXPENSE OF ENFORCEMENT.  COMPARE GUNDLING V. CHICAGO, 177 U.S.
183, 189; MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S. 219, 237; TEXAS
CO. V. BROWN, 258 U.S. 466, 479. 

THIRD.  THE PLAINTIFF CONTENDS THAT IN OTHER RESPECTS THE STATUTE
VIOLATES RIGHTS PROTECTED BY THE FOURTEENTH AMENDMENT AND THE
CONSTITUTION OF THE STATE.  IT OBJECTS THAT THE POWER CONFERRED UPON
THE BOARD TO GRANT OR DENY A CERTIFICATE IS UNLIMITED; THAT THE BOARD
HAS ISSUED NO REGULATIONS; AND THAT NEITHER THE STATUTE NOR THE BOARD
HAS PROVIDED FOR HEARING AN APPLICANT.  THE PLAINTIFF HAS NOT APPLIED
FOR A CERTIFICATE; AND IT IS NOT TO BE ASSUMED THAT, IF IT CONCLUDES TO
DO SO, ITS APPLICATION WILL BE REFUSED, OR THAT THE BOARD WILL DENY ANY
RIGHT TO WHICH IT IS ENTITLED.  SEE GUNDLING V. CHICAGO, 177 U.S. 183,
186; LEHON V. ATLANTA, 242 U.S. 53, 56; SMITH V. CAHOON, 283 U.S. 553,
562; HIGHLAND FARMS DAIRY V. AGNEW, 300 U.S. 608.  FN1  THERE ARE ALSO
OTHER ANSWERS TO THIS CONTENTION.  SECTION 2 DEFINES THE DEPARTMENT'S
CONTROL OF REGISTRATION: 

"THE SAID DEPARTMENT IS AUTHORIZED TO REGULATE OR TO REFUSE THE
ISSUANCE OF CERTIFICATES OF REGISTRATION OR TO PROHIBIT THE SALE OF
COSMETIC PREPARATIONS WHICH IN ITS JUDGMENT CONTAIN INJURIOUS
SUBSTANCES IN SUCH AMOUNTS AS TO BE POISONOUS, INJURIOUS OR DETRIMENTAL
TO THE PERSON."  DELEGATION OF THE POWER TO EXERCISE THAT JUDGMENT IS
NOT OBNOXIOUS TO THE CONSTITUTION OF MAINE.  COMPARE BANGOR RAILWAY &
ELECTRIC CO. V. ORONO, 109 ME. 292, 296; 84 ATL. 385; IN RE KNOX COUNTY
ELECTRIC CO., 119 ME. 179, 182; 109 ATL. 898; MCKENNEY V. FARNSWORTH,
121 ME. 450, 452-454; 118 ATL. 237.  AND OBVIOUSLY, IT CONTRAVENES NO
PROVISION OF THE FEDERAL CONSTITUTION.  COMPARE UNITED STATES V.
GRIMAUD, 220 U.S. 506, 517; MUTUAL FILM CORP. V. INDUSTRIAL COMMISSION,
236 U.S. 230, 246; HALL V. GEIGER-JONES CO., 242 U.S. 539, 554;
HIGHLAND FARMS DAIRY V. AGNEW, SUPRA.  NEITHER CONSTITUTION REQUIRES
THAT EXERCISE OF SUCH A POWER BE PRECEDED BY THE ADOPTION OF
REGULATIONS.  AND NEITHER CONSTITUTION REQUIRES THAT THERE MUST BE A
HEARING OF THE APPLICANT BEFORE THE BOARD MAY EXERCISE A JUDGMENT UNDER
THE CIRCUMSTANCES AND OF THE CHARACTER HERE INVOLVED.  THE REQUIREMENT
OF DUE PROCESS OF LAW IS AMPLY SAFEGUARDED BY SEC. 2 OF THE STATUTE,
WHICH PROVIDES: 

"FROM THE REFUSAL OF SAID DEPARTMENT TO ISSUE A CERTIFICATE OF
REGISTRATION FOR ANY COSMETIC PREPARATION APPEAL SHALL LIE TO THE
SUPERIOR COURT IN THE COUNTY OF KENNEBEC OR ANY OTHER COUNTY IN THE
STATE FROM WHICH THE SAME WAS OFFERED FOR REGISTRATION." 

COMPARE HAGAR V. RECLAMATION DISTRICT NO. 108, 111 U.S. 701, 711,
712; HALL V. GEIGER-JONES CO., 242 U.S. 539, 554; BRAGG V. WEAVER, 251
U.S. 57, 59; PHILLIPS V. COMMISSIONER, 283 U.S. 589, 597; STATE V.
MCCANN, 59 ME. 383, 385; BENNETT V. DAVIS, 90 ME. 102, 106; 37 ATL.
864; MCINNES V. MCKAY, 127 ME. 110, 116; 141 ATL. 699 279 U.S. 820. 

FOURTH.  PLAINTIFF URGES THAT RELIEF SHOULD BE GRANTED BECAUSE THE
PROVISIONS OF THE STATUTE CONCERNING SEIZURE AND FORFEITURE OF
UNREGISTERED COSMETICS VIOLATE THE CONSTITUTION OF MAINE.  TO THAT
CLAIM IT IS A SUFFICIENT ANSWER THAT IF THERE IS A WRONGFUL SEIZURE, IT
WILL BE OF GOODS BELONGING TO OTHERS.  FOR, AS THE BILL AND FINDINGS
REVEAL, NO GOODS OF THE PLAINTIFF WILL EVER BE LIABLE TO SEIZURE, SINCE
THE PLAINTIFF WILL HAVE NONE IN MAINE.  IF UNDER THIS STATUTE THE
CONSTITUTIONAL RIGHTS OF OTHERS ARE VIOLATED BY AN UNLAWFUL SEIZURE AND
FORFEITURE, THEY, AND NOT THE PLAINTIFF, MUST SEEK THE REDRESS. 
COMPARE TYLER V. JUDGES, 179 U.S. 405, 409, 410; STANDARD STOCK FOOD
CO. V. WRIGHT, 225 U.S. 540, 550; DIER V. BANTON, 262 U.S. 147, 149
150.  HENCE, WE INTIMATE NO OPINION ON THE MERITS OF THE POINT RAISED
BY PLAINTIFF.  AFFIRMED 

FN1  COMPARE DALTON ADDING MACHINE CO. V. STATE CORPORATION COMM'N,
236 U.S. 699; LEHMANN V. STATE BOARD OF ACCOUNTANCY, 263 U.S. 394, 398;
CONTINENTAL BAKING CO. V. WOODRING, 286 U.S. 352, 368, 369. 
..END :


















WELCH V. OBISPO OIL CO., 301 U.S. 190 


NO. 602.  ARGUED MARCH 10, 11, 1937.  - DECIDED APRIL 26, 1937.  - 85
F.(2D) 860, REVERSED. 


WHERE A TAXPAYER'S PROFITS TAX HAS BEEN DETERMINED BY THE COMMISSIONER
UNDER SECS. 327 AND 328 OF THE REVENUE ACT OF 1918, THE DISTRICT COURT
AND THE CIRCUIT COURT OF APPEALS ARE WITHOUT JURISDICTION TO ENTERTAIN
AN ACTION FOR A REFUND OF PART OF THE ACCOMPANYING INCOME TAX ON THE
GROUND THAT THE INCOME WAS ERRONEOUSLY DETERMINED.  P. 194. 

WELCH, FORMER COLLECTOR OF INTERNAL REVENUE, V. OBISPO OIL CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 300 U.S. 647, TO REVIEW A JUDGMENT SUSTAINING
JURISDICTION OVER A SUIT TO RECOVER MONEY EXACTED AS INCOME TAX, AND
INCREASING THE AMOUNT ALLOWED BY THE DISTRICT COURT. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE REVENUE ACT OF 1918, C. 18, 40 STAT. 1057, LAID UPON
CORPORATIONS, IN ADDITION TO THE INCOME TAX, A WAR PROFITS AND EXCESS
PROFITS TAX AT VERY HIGH RATES.  BECAUSE THE PROFITS TAX MIGHT PROVE
UNDULY BURDENSOME, CONGRESS PROVIDED BY SECS. 327 AND 328 FOR A SPECIAL
ASSESSMENT OF THE PROFITS TAX BY THE COMMISSIONER OF INTERNAL REVENUE
UNDER CERTAIN CIRCUMSTANCES.  THE QUESTION FOR DECISION IN THIS CASE IS
WHETHER, WHEN A SPECIAL ASSESSMENT HAS BEEN MADE OF THE PROFITS TAX, A
COURT MAY ENTERTAIN AN ACTION FOR REFUND OF AN AMOUNT PAID ON THE
ACCOMPANYING INCOME TAX ON THE GROUND THAT THE INCOME WAS ERRONEOUSLY
DETERMINED. 

OBISPO OIL COMPANY BROUGHT, IN THE FEDERAL COURT FOR SOUTHERN
CALIFORNIA, THIS ACTION TO RECOVER AN AMOUNT ALLEGED TO HAVE BEEN
ILLEGALLY EXACTED AS INCOME TAX FOR THE YEAR 1920.  UPON FINAL
ASSESSMENT, THE COMMISSIONER HAD ASSESSED ITS NET INCOME FOR THAT YEAR
AT $1,476,330.52.  UNDER SEC. 236(B), IT WAS NECESSARY TO DEDUCT THE
PROFITS TAX AND OTHER AMOUNTS FROM THE NET INCOME IN ORDER TO DETERMINE
THE AMOUNT OF THE TAXABLE NET INCOME.  BECAUSE THE NET INCOME OF THAT
YEAR INCLUDED LARGE FUNDS THERETOFORE LONG IN LITIGATION, THE
COMMISSIONER MADE A SPECIAL ASSESSMENT UNDER SEC. 327(D) TO DETERMINE
THE PROFITS TAX.  FN1  WHERE A SPECIAL ASSESSMENT IS MADE, SEC. 328
COMMANDS THAT "THE TAX SHALL BE THE AMOUNT WHICH BEARS THE SAME RATIO
TO THE NET INCOME OF THE TAXPAYER  ...  FOR THE TAXABLE YEAR, AS THE
AVERAGE TAX OF REPRESENTATIVE CORPORATIONS ENGAGED IN A LIKE OR SIMILAR
TRADE OR BUSINESS, BEARS TO THEIR AVERAGE NET INCOME  ...  FOR SUCH
YEAR."  THE COMMISSIONER FIXED THAT RATIO AS 9.67 PER CENT; AND,
APPLYING IT TO THE OBISPO COMPANY'S NET INCOME OF $1,476,330.52,
COMPUTED THE PROFITS TAX AT $142,765.73.  WHEN THIS AND OTHER ALLOWABLE
SUMS WERE DEDUCTED, THE TAXABLE NET INCOME WAS FOUND TO BE
$1,245,430.63. 

THE STATUTORY TAX RATE ON NET INCOME BEING 10 PER CENT., THE INCOME
TAX WAS DETERMINED TO BE $124,543.06.  THE COMPANY PAID THE INCOME TAX
SO ASSESSED; FILED THEN A CLAIM FOR REFUND THEREOF, SETTING UP SEVERAL
GROUNDS OF RECOVERY; AND, THE REFUND BEING REFUSED, BROUGHT THIS SUIT
AGAINST THE COLLECTOR OF INTERNAL REVENUE FOR THE SIXTH COLLECTION
DISTRICT OF CALIFORNIA FOR ALLEGED OVERPAYMENT.  THE AMENDED COMPLAINT
ALLEGED THAT THE SUM HAD BEEN "ILLEGALLY EXACTED FROM THE PLAINTIFF ON
ACCOUNT OF ADDITIONAL INCOME AND PROFITS TAXES FOR THE YEAR 1920."  IN
A TRIAL HELD IN 1931, THE DISTRICT COURT HELD THAT THE COMPANY WAS
ENTITLED TO RECOVER THE FULL AMOUNT CLAIMED.  48 F.(2D) 872.  THE
COLLECTOR APPEALED TO THE UNITED STATES CIRCUIT COURT OF APPEALS; BUT
BEFORE THE APPEAL WAS DETERMINED THERE, THE CASE WAS, UPON AGREEMENT OF
THE PARTIES, REFERRED BACK TO THE DISTRICT COURT FOR CORRECTION, TO
ACCORD WITH OUR DECISION IN NORTH AMERICAN OIL CONSOLIDATED V. BURNET,
286 U.S. 417, WHICH HAD MEANWHILE BEEN RENDERED.  THEN THE COLLECTOR
MOVED IN THE DISTRICT COURT FOR JUDGMENT, CLAIMING THAT THE COMPANY WAS
NOT ENTITLED TO RECOVER ANY PART OF THE SUM SUED FOR; AND,
SPECIFICALLY, THAT THE COURT HAD "NO JURISDICTION OF THE SUBJECT MATTER
OF THIS ACTION, THE TAX SOUGHT TO BE RECOVERED HAVING BEEN ASSESSED
UNDER THE SPECIAL ASSESSMENT PROVISIONS OF SECTIONS 327 AND 328 OF THE
REVENUE ACTS OF 1918 AND 1921." 

THE DISTRICT COURT OVERRULED THE COLLECTOR'S MOTION TO DISMISS; RULED
THAT THE NET INCOME AS DETERMINED BY THE COMMISSIONER WAS EXCESSIVE IN
THE NET AMOUNT OF $40,102.44; AND ENTERED JUDGMENT FOR THE COMPANY IN
THE SUM OF $4,010.24 WITH INTEREST AND COSTS.  THE COMPANY APPEALED TO
THE CIRCUIT COURT OF APPEALS, CLAIMING CHIEFLY THAT THE 1920 NET INCOME
SHOULD HAVE BEEN REDUCED BY AN ADDITIONAL DEPLETION ALLOWANCE OF
$516,598.10.  THE COLLECTOR FILED A CROSS-APPEAL, CLAIMING, AMONG OTHER
THINGS, THAT THE DISTRICT COURT WAS WITHOUT JURISDICTION OVER THE
SUBJECT MATTER OF THE ACTION, "THE TAX SOUGHT TO BE RECOVERED HAVING
BEEN DETERMINED AND ASSESSED BY THE COMMISSIONER  ...  UNDER THE
SPECIAL ASSESSMENT PROVISIONS OF SECTIONS 327 AND 328 OF THE REVENUE
ACTS OF 1918 AND 1921."  THE CIRCUIT COURT OF APPEALS AFFIRMED THE
DISTRICT COURT IN HOLDING THAT IT HAD JURISDICTION OF THE SUBJECT
MATTER; BUT REVERSED THE JUDGMENT ON THE GROUND THAT THE ASSESSMENT HAD
OVERSTATED THE NET INCOME BY THE NET AMOUNT OF $556,700.54, SO THAT
THERE SHOULD HAVE BEEN DEDUCTED THE SUM OF $516,598.10 FOR DEPLETION,
IN ADDITION TO THE SUM FOUND BY THE DISTRICT COURT.  85 F.(2D) 860. 
CERTIORARI WAS GRANTED UPON PETITION OF THE COLLECTOR BECAUSE OF THE
PRACTICAL IMPORTANCE OF THE QUESTION OF JURISDICTION PRESENTED.  FN2 

THE COMMISSIONER'S ACTION IN APPLYING OR REJECTING THE PROCEDURE OF
SECS. 327 AND 328, AND HIS COMPUTATION OF THE PROFITS TAX THEREUNDER
AND OF THE REGULAR INCOME TAX ARE REVIEWABLE BY THE BOARD OF TAX
APPEALS.  WHEN NO SPECIAL ASSESSMENT HAS BEEN MADE OF THE PROFITS TAX,
AN ACTION WILL LIE TO RECOVER AN AMOUNT ERRONEOUSLY EXACTED EITHER FOR
INCOME OR FOR PROFITS TAXES.  BUT NO COURT HAS POWER TO REVIEW THE
GRANT OR DENIAL OF A SPECIAL ASSESSMENT OR THE CORRECTNESS OF THE
COMPUTATION MADE THEREON.  WILLIAMSPORT WIRE ROPE CO. V. UNITED STATES,
277 U.S. 551; HEINER V. DIAMOND ALKALI CO., 288 U.S. 502.  THE COMPANY
CONCEDES THAT THE AMOUNT OF THE PROFITS TAXES, BEING THE SUBJECT OF A
SPECIAL ASSESSMENT UNDER SECS. 327 AND 328, COULD NOT BE REVIEWED BY
THE COURT; BUT IT INSISTS THAT RECOVERY MAY BE HAD OF THE SUM ALLEGED
TO HAVE BEEN ERRONEOUSLY EXACTED FOR INCOME TAX. 

IN HEINER V. DIAMOND ALKALI CO., 288 U.S. 502, 503, WHERE A SPECIAL
ASSESSMENT HAD BEEN MADE OF PROFITS TAXES UNDER SECS. 327 AND 328, THE
TAXPAYER SUED TO RECOVER A PART OF THE PROFITS TAX, ALLEGING ERROR IN
THE DETERMINATION OF THE NET INCOME ON WHICH IT WAS BASED.  THE CIRCUIT
COURT OF APPEALS ALLOWED RECOVERY (60 F.(2D) 505, 513, 514).  WE
REVERSED ITS JUDGMENT, HOLDING THAT THE COURT MAY NOT, IN AN ACTION FOR
A REFUND OF PROFITS TAX, RECALCULATE THE TAXPAYER'S NET INCOME AND
RECOMPUTE THE PROFITS TAX BY APPLYING TO THE CORRECTED NET INCOME THE
RATIO FIXED BY THE COMMISSIONER FOR THE COMPUTATION OF THE TAX.  WE DID
NOT PASS UPON THE QUESTION WHETHER THE SAME RULE SHOULD BE APPLIED IF
THE TAXPAYER SEEKS A REFUND OF THE INCOME TAX BECAUSE OF AN ALLEGED
ERROR IN THE COMPUTATION OF THE NET INCOME.  BUT THE REASONING OF THE
OPINION LEADS TO THAT CONCLUSION. 

THE COMPANY INSISTS THAT, AS IT WOULD, IN VIEW OF THE LARGE
DEDUCTIONS ALLOWED BY THE COURT OF APPEALS, BE ENTITLED TO A
SUBSTANTIAL REFUND EVEN IF IT WERE DENIED THE DEDUCTION OF THE WHOLE OF
THE PROFITS TAX FROM THE NET INCOME, CONGRESS COULD NOT HAVE INTENDED
THAT THE DEDUCTION PROVISION SHOULD DEPRIVE THE COURTS OF JURISDICTION
TO CORRECT ERRORS IN DETERMINING THE AMOUNT OF THE INCOME FROM WHICH
THE INCOME TAX IS COMPUTED; THAT CONGRESS INTENDED TO BENEFIT THE
TAXPAYER WHEN IT DIRECTED THAT BEFORE COMPUTING THE 10 PER CENT. INCOME
TAX THE NET INCOME FUND SHOULD BE REDUCED BY DEDUCTING THE PROFITS TAX
THEREFROM; AND THAT, THEREFORE, IT IS UNREASONABLE TO ADOPT A
CONSTRUCTION OF THE LAW UNDER WHICH THE ALLOWANCE OF THE PROFITS TAX
CREDIT WOULD BE CONSIDERED AS SO ESSENTIAL AN ELEMENT IN THE
COMPUTATION OF THE TAX THAT THE TAXPAYER WOULD BE DEPRIVED OF ALL OTHER
ADJUSTMENTS IN THE EVENT THERE IS UNCERTAINTY AS TO THE PARTICULAR
ITEMS. 

BY THE STATUTE THE AMOUNT OF THE INCOME TAX PAYABLE IS DEPENDENT UPON
THE AMOUNT OF THE PROFITS TAX; AND THE AMOUNT OF THE PROFITS TAX IS
DEPENDENT UPON THE AMOUNT OF THE INCOME.  IN ORDER TO DETERMINE THE
CORPORATE INCOME TAX PAYABLE AT THE STATUTORY RATE OF 10 PER CENT., OF
THE TAXABLE NET INCOME, THERE MUST FIRST BE DEDUCTED FROM THE NET
INCOME THE AMOUNT OF THE PROFITS TAX.  SEC. 236(B).  THUS, TO COMPUTE
THE INCOME TAX IN THE CASE AT BAR, IT WAS NECESSARY FIRST TO DEDUCT
FROM THE NET INCOME ASCERTAINED AS BEING $1,476,330.52, THE PROFITS TAX
WHICH BY APPLYING, UNDER SEC. 328(A), THE RATIO OF 9.67 PER CENT. TO
THE NET INCOME, WAS DETERMINED TO BE $142,765.73. 

A CHANGE IN THE AMOUNT OF NET INCOME TO WHICH THE RATE WAS APPLIED
WOULD, OF COURSE, PRODUCE A CHANGE IN THE AMOUNT OF THE PROFITS TAX. 
INDEED, A DIFFERENT COMPUTATION OF NET INCOME MIGHT HAVE MADE IT PROPER
TO COMPARE THE TAXPAYER WITH A WHOLLY DIFFERENT GROUP OF REPRESENTATIVE
CORPORATIONS, AND HENCE MIGHT HAVE RESULTED IN THE DETERMINATION OF A
DIFFERENT RATE FOR THE PROFITS TAX.  AND MOREOVER, THE COMMISSIONER,
HAVING AUTHORITY, IN HIS DISCRETION, TO DETERMINE WHETHER THERE SHOULD
BE A SPECIAL ASSESSMENT, MIGHT HAVE REFUSED TO MAKE ONE.  IT IS NO LESS
TRUE IN THE PRESENT SITUATION THAN IN HEINER V. DIAMOND ALKALI CO.,
SUPRA, 506, THAT THE TAXPAYER'S TRUE NET INCOME IS AN ESSENTIAL FACTOR
IN THE DETERMINATION OF HIS LIABILITY UNDER SECS. 327 AND 328; AND IT
FOLLOWS THAT THE MAKING OF THE SPECIAL ASSESSMENT PRECLUDES REVIEW BY A
COURT OF THE INCOME TAX DETERMINED.  REVERSED. 

FN1  THE AMENDED COMPLAINT ALLEGED THAT SECS. 327 AND 328 WERE
APPLIED "DUE TO THE ABNORMALITY RESULTING FROM THE INCLUSION IN
PLAINTIFF'S INCOME FOR THAT YEAR (1920) OF SAID IMPOUNDED FUNDS." 

FN2  THE QUESTION WAS PRESENT IN UNITED STATES V. SUPPLEE-BIDDLE
HARDWARE CO., 265 U.S. 189, AND IN HEINER V. DIAMOND ALKALI CO., 288
U.S. 502, BUT WAS NOT SUBMITTED TO THE COURT FOR DECISION. 
..END :













BOSEMAN V. INSURANCE CO., 301 U.S. 196 


NO. 531.  ARGUED MARCH 4, 5, 1937.  - DECIDED APRIL 26, 1937.  - 84
F.(2D) 701, AFFIRMED. 


1.  IN A SUIT IN A FEDERAL COURT IN TEXAS, BROUGHT BY AN EMPLOYEE OF
AN OIL COMPANY UPON A POLICY OF GROUP INSURANCE, ISSUED TO THE COMPANY
IN PENNSYLVANIA BY A CONNECTICUT INSURER - IT APPEARING THAT THE
INSURER HAD NEVER EXECUTED OR DELIVERED ANY CONTRACT OF INSURANCE OF
ANY KIND IN TEXAS; THAT NONE OF THE NEGOTIATIONS FOR THE POLICY HAD
TAKEN PLACE IN TEXAS; THAT ALL OF THE INSURER'S DEALINGS IN CONNECTION
WITH THE POLICY WERE WITH THE OIL COMPANY AND NOT WITH ANY OF ITS
EMPLOYEES; THAT THE COMPANY AND THE INSURER INTENDED THE LAW OF
PENNSYLVANIA TO APPLY, AND THE POLICY EXPRESSLY SO PROVIDED; AND THAT
THE EMPLOYEE IN HIS APPLICATION FOR THE INSURANCE, MADE TO AND FILED
WITH THE OIL COMPANY, AGREED TO BE BOUND BY THE PROVISIONS OF THE
POLICY - HELD, THAT THE VALIDITY OF A PROVISION OF THE POLICY REQUIRING
AS A CONDITION PRECEDENT TO PAYMENT, AFTER THE TERMINATION OF
EMPLOYMENT, OF ANY CLAIM FOR PERMANENT TOTAL DISABILITY INCURRED DURING
THE PERIOD OF EMPLOYMENT, NOTICE WITHIN 60 DAYS AFTER THE TERMINATION
OF THE EMPLOYMENT, WAS GOVERNED BY THE LAW OF PENNSYLVANIA.  PP. 202,
206. 

2.  THE LAW OF TEXAS, WHICH FORBIDS NOTICE OF LESS THAN 90 DAYS AS A
CONDITION PRECEDENT TO SUIT UPON ANY CONTRACT REQUIRING NOTICE, HELD
NOT RENDERED APPLICABLE TO THE POLICY IN QUESTION BY 

(A)  THE FACT THAT THE INSURER WAS AUTHORIZED TO DO BUSINESS IN TEXAS
- IT ACTUALLY HAD NO QUALIFIED AGENTS THERE AND HAD NEVER EXECUTED OR
DELIVERED ANY CONTRACT OF INSURANCE OF ANY KIND IN THAT STATE.  P.
204. 

(B)  THE DELIVERY TO THE EMPLOYEE IN TEXAS OF A CERTIFICATE, ISSUED
BY THE INSURER TO THE OIL COMPANY, ACKNOWLEDGING THAT THE EMPLOYEE WAS
INSURED UNDER THE POLICY.  THE CERTIFICATE WAS NO PART OF THE CONTRACT
OF INSURANCE.  P. 203. 

(C)  THE FACT THAT THE EMPLOYEE BECAME ONE OF THE INSURED GROUP
THROUGH THE EXECUTION IN TEXAS OF A PAYROLL DEDUCTION ORDER APPROVED BY
THE EMPLOYER, TO COMPENSATE THE EMPLOYER IN PART FOR ITS PAYMENT OF THE
PREMIUM.  P. 202. 

(D)  THE ACTS OF THE OIL COMPANY IN OBTAINING THE INSURANCE,
RECEIVING APPLICATIONS THEREFOR FROM ITS EMPLOYEES, TAKING PAYROLL
DEDUCTION ORDERS, REPORTING CHANGES IN THE INSURED GROUP, PAYING
PREMIUMS, ETC.,  - ALL OF WHICH WERE DONE BY THE OIL COMPANY NOT AS
AGENT OF THE INSURER BUT FOR AND ON BEHALF OF ITSELF AND ITS
EMPLOYEES.  P. 204. 

(E)  ARTS. 5054 AND 5056, REV. CIV. STATS. OF TEXAS - WHICH ARE
INAPPLICABLE TO THE FACTS AND THE QUESTION PRESENTED IN THIS CASE.  P.
205. 

3.  IN DETERMINING A QUESTION AS TO THE CONSTRUCTION OF AN INSURANCE
POLICY, INVOLVING ONLY GENERAL LAW, THE FEDERAL COURTS ARE NOT BOUND TO
FOLLOW THE DECISIONS OF THE COURTS OF THE STATE IN WHICH THE
CONTROVERSY ARISES, BUT MAY EXERCISE THEIR OWN INDEPENDENT JUDGMENT. 
P. 203. 

BOSEMAN V. CONNECTICUT GENERAL LIFE INSURANCE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 299 U.S. 537, TO REVIEW A JUDGMENT REVERSING A JUDGMENT OF
THE DISTRICT COURT IN FAVOR OF THE CLAIMANT IN A SUIT AGAINST THE
INSURANCE COMPANY UPON A POLICY OF GROUP INSURANCE.  THE SUIT HAD BEEN
REMOVED TO THE DISTRICT COURT FROM A STATE COURT OF TEXAS. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

PETITIONER, A CITIZEN AND RESIDENT OF TEXAS, BROUGHT THIS ACTION
AGAINST RESPONDENT, A CONNECTICUT CORPORATION, IN A TEXAS COURT TO
RECOVER $4,000 WITH INTEREST AND ATTORNEY'S FEES.  RESPONDENT REMOVED
THE CASE TO THE FEDERAL COURT FOR THE EASTERN DISTRICT OF TEXAS. 

THE SUIT WAS TO RECOVER FOR PERMANENT TOTAL DISABILITY UNDER A POLICY
OF GROUP INSURANCE ISSUED IN PENNSYLVANIA BY RESPONDENT TO THE GULF OIL
CORPORATION.  IT COVERS EMPLOYEES OF THAT CORPORATION AND ITS
SUBSIDIARIES, OF WHICH THE GULF REFINING COMPANY IS ONE.  PETITIONER,
AN EMPLOYEE OF THAT COMPANY, BY THAT POLICY WAS INSURED IN RESPECT OF
LIFE AND DISABILITY.  IT PROVIDES THAT "NO CLAIM FOR PERMANENT TOTAL
DISABILITY INCURRED BY ANY EMPLOYEE DURING HIS PERIOD OF EMPLOYMENT
SHALL BE PAID AFTER THE TERMINATION OF SUCH EMPLOYMENT UNLESS SUCH
EMPLOYEE GAVE WRITTEN NOTICE OF SUCH DISABILITY TO THE COMPANY DURING
THE SAID PERIOD OF EMPLOYMENT OR WITHIN 60 DAYS THEREAFTER."  THAT
PROVISION IS CONCEDED TO BE VALID UNDER PENNSYLVANIA LAW.  PETITIONER
FAILED TO GIVE THE NOTICE WITHIN THE TIME SPECIFIED.  ARTICLE 5546,
REVISED CIVIL STATUTES OF TEXAS, DECLARES THAT NO STIPULATION IN A
CONTRACT REQUIRING NOTICE AS A CONDITION PRECEDENT TO THE RIGHT TO SUE
THEREON SHALL BE VALID UNLESS REASONABLE.  "ANY SUCH STIPULATION FIXING
THE TIME WITHIN WHICH SUCH NOTICE SHALL BE GIVEN AT A LESS PERIOD THAN
NINETY DAYS SHALL BE VOID  ..."  THE DISTRICT COURT HELD THE TEXAS LAW
CONTROLLING AND REFUSED TO GIVE EFFECT TO THE QUOTED POLICY PROVISION. 
THE CIRCUIT COURT OF APPEALS HELD THE PENNSYLVANIA LAW APPLICABLE, THE
POLICY PROVISION VALID, AND THAT PETITIONER, HAVING FAILED TO GIVE THE
REQUIRED NOTICE, WAS NOT ENTITLED TO RECOVER.  84 F.(2D) 701.  THE SOLE
QUESTION IS WHETHER THE PENNSYLVANIA LAW OR THE TEXAS LAW GOVERNS. 

IN 1916 PETITIONER BECAME AN EMPLOYEE OF THE REFINING COMPANY AND
THEREAFTER WORKED FOR IT UNTIL OCTOBER 8, 1932.  DURING PARTS OF THAT
PERIOD HE WAS INSURED BY TWO GROUP POLICIES ISSUED BY DEFENDANT TO THE
OIL CORPORATION.  BOTH COVERED EMPLOYEES OF THE REFINING COMPANY.  ONE,
NO. G5039, BECAME EFFECTIVE IN 1919; THE EMPLOYER PAID THE PREMIUMS;
THE EMPLOYEES CONTRIBUTED NOTHING TO REIMBURSE THE EMPLOYER OR TO
PROCURE THE INSURANCE OR TO KEEP THE POLICIES IN FORCE.  THE OTHER, NO.
G5545, BECAME EFFECTIVE IN 1925; EMPLOYEES CONTRIBUTED PART OF THE
PREMIUMS THEREON.  BOTH TERMINATED AT THE TIME OF THE TAKING EFFECT,
APRIL 1, 1932, OF THE ONE, NO. G5039R, UNDER WHICH PETITIONER BROUGHT
THIS ACTION. 

MARCH 7, 1932, PLAINTIFF MADE AN APPLICATION UNDER THE LAST MENTIONED
POLICY - THEN IN CONTEMPLATION - FOR THE AMOUNT APPLICABLE ON AND AFTER
APRIL 1, 1932, ACCORDING TO HIS SALARY CLASSIFICATION AND CONTINUOUS
SERVICE AS PROVIDED IN THE POLICY.  IN HIS APPLICATION HE AGREED TO BE
BOUND BY THE RULES GOVERNING THE INSURANCE, AUTHORIZED HIS EMPLOYER TO
DEDUCT IN ADVANCE THE PROPER AMOUNT PER MONTH FROM HIS PAY TO COVER A
PART OF THE PREMIUMS TO BE PAID BY THE OIL CORPORATION TO DEFENDANT ON
THE POLICY TO BE ISSUED, ACCEPTED CANCELATION OF HIS INSURANCE AND
RELEASED CLAIMS UNDER THE EARLIER POLICIES AND, IN LIEU OF THAT
PROTECTION, TOOK THE BENEFITS GRANTED BY THE NEW POLICY.  THE
APPLICATION WAS NOT ADDRESSED, MADE OR SENT TO DEFENDANT.  IT WAS
DELIVERED TO, AND BECAME AND REMAINED A PART OF THE PERMANENT RECORDS
OF, THE REFINING COMPANY. 

MARCH 15, 1932, THE OIL CORPORATION MADE WRITTEN APPLICATION, WHICH
WAS SIGNED BY IT AND DELIVERED TO DEFENDANT IN PENNSYLVANIA, FOR THE
POLICY OF INSURANCE, AND IN THE SAME INSTRUMENT ASKED CANCELATION OF
THE EARLIER POLICIES.  IT REQUESTED THAT THE POLICY BE ISSUED IN
PENNSYLVANIA AND THAT IT BE GOVERNED BY THE LAWS OF THAT STATE.  FINAL
AGREEMENT BETWEEN DEFENDANT AND THE OIL CORPORATION FOR EXECUTION AND
DELIVERY OF THE POLICY WAS REACHED IN PENNSYLVANIA.  ON OR ABOUT THE
SAME DAY DEFENDANT ACCEPTED THE APPLICATION; IT SIGNED THE POLICY IN
CONNECTICUT AND ISSUED AND DELIVERED IT TO THE OIL CORPORATION IN
PENNSYLVANIA.  IN THAT STATE THE OIL CORPORATION PAID THE BINDING
PREMIUM REQUIRED BY THE POLICY.  NONE OF THE NEGOTIATIONS FOR THE
POLICY AND NO ACT DONE FOR ITS EXECUTION OR DELIVERY TOOK PLACE IN
TEXAS OR IN ANY STATE OTHER THAN PENNSYLVANIA AND CONNECTICUT. 

THE POLICY ALSO PROVIDES:  IT IS ISSUED FOR A TERM OF ONE YEAR IN
CONSIDERATION OF THE APPLICATION OF THE EMPLOYER, THE PAYMENT OF A
BINDING PREMIUM AND OF OTHER PREMIUMS PROVIDED FOR.  EACH EMPLOYEE IN
SERVICE APRIL 1, 1932, INSURED UP TO THAT DATE UNDER POLICY G5545
BECOMES ELIGIBLE ON APRIL 1, 1932.  AN EMPLOYEE MAY ELECT INSURANCE
UNDER THE POLICY BY COMPLETING ANY FORM OF PAYROLL DEDUCTION ORDER
APPROVED BY THE EMPLOYER.  EACH EMPLOYEE ELECTING THE INSURANCE BEFORE
BECOMING ELIGIBLE WILL BE INSURED AUTOMATICALLY ON THE DAY HE BECOMES
ELIGIBLE.  ON THE EFFECTIVE DATE OF THE POLICY AND ON EACH ANNUAL
RENEWAL DATE AN AVERAGE ANNUAL PREMIUM RATE WILL BE ESTABLISHED.  THE
EMPLOYER SHALL GIVE THE INSURER NOTICE OF TERMINATIONS OF INSURANCE AND
ADDITIONS OF EMPLOYEES BECOMING ELIGIBLE.  THE CHANGES SHALL BE
CONSIDERED AS HAVING TAKEN EFFECT AS IF NOTICE THEREOF HAD BEEN GIVEN
IN ADVANCE.  UPON TERMINATION OF EMPLOYMENT OF ANY INSURED EMPLOYEE HIS
INSURANCE SHALL BE CANCELED.  "THE COMPANY WILL ISSUE TO THE EMPLOYER
FOR EACH INSURED EMPLOYEE AN INDIVIDUAL CERTIFICATE.  THIS CERTIFICATE
WILL IN NO WAY VOID ANY OF THE TERMS AND CONDITIONS OUTLINED IN THE
POLICY BUT WILL SHOW THE INSURANCE PROTECTION TO WHICH THE EMPLOYEE IS
ENTITLED  ...  THE POLICY AND THE APPLICATION OF THE EMPLOYER  ...  AND
THE APPLICATIONS OF THE EMPLOYEES, IF ANY, SHALL CONSTITUTE THE ENTIRE
CONTRACT BETWEEN THE PARTIES  ...  THIS CONTRACT IS ISSUED AND
DELIVERED  ...  IN THE COMMONWEALTH OF PENNSYLVANIA AND IS GOVERNED BY
THE LAWS OF THAT COMMONWEALTH." 

DEFENDANT WAS NOT WRITING DISABILITY, LIFE OR GROUP INSURANCE IN
TEXAS IN 1918, 1925 OR 1932, THE YEARS RESPECTIVELY IN WHICH IT ISSUED
TO THE OIL CORPORATION THE ABOVE MENTIONED POLICIES, NOS. G5039, G5545
AND G5039R.  MARCH 21, 1932, THE TEXAS BOARD OF INSURANCE COMMISSIONERS
ISSUED ITS CERTIFICATE AUTHORIZING DEFENDANT TO PURSUE THE BUSINESS OF
LIFE, HEALTH AND ACCIDENT INSURANCE WITHIN THAT STATE FOR THE YEAR
ENDING FEBRUARY 28, 1933.  BUT SINCE 1917 DEFENDANT HAS NOT WRITTEN ANY
CONTRACTS OF INSURANCE NOR HAS IT HAD THERE ANY AGENT QUALIFIED SO TO
DO.  IT HAS NO LICENSED AGENT, HAS NOT QUALIFIED TO WRITE INSURANCE
CONTRACTS IN TEXAS OR SINCE 1917 ACCEPTED ANY APPLICATION FOR INSURANCE
ORIGINATING IN THAT STATE.  THE EVIDENCE IS THAT RESPONDENT "HAS NEVER
WRITTEN OR DELIVERED A CONTRACT OR POLICY OF INSURANCE OF ANY KIND OR
CHARACTER IN THE STATE OF TEXAS." 

ON APRIL 1, 1932, PETITIONER AUTOMATICALLY BECAME INSURED UNDER THE
POLICY.  THE MONTHLY PREMIUM FOR HIS INSURANCE WAS $3; MONTHLY
DEDUCTIONS OF $2.40 WERE MADE BY THE REFINING COMPANY AND SENT BY IT TO
THE OIL CORPORATION AT PITTSBURGH.  DEFENDANT CHARGED THE PREMIUMS TO
THE OIL CORPORATION AND THE LATTER PAID THEM BY CHECK SENT FROM
PITTSBURGH TO DEFENDANT AT HARTFORD. 

ABOUT MAY 1, 1932, RESPONDENT ISSUED AND DELIVERED TO THE OIL
CORPORATION AN INDIVIDUAL CERTIFICATE STATING THAT IT WAS ISSUED
PURSUANT TO THE POLICY AND THAT SUBJECT TO ITS TERMS AND CONDITIONS
PETITIONER, JOHN BOSEMAN, AN EMPLOYEE WAS INSURED UNDER SCHEDULE B OF
THE POLICY.  THE CERTIFICATE CONTAINED THE ABOVE QUOTED POLICY
PROVISION REQUIRING NOTICE OF DISABILITY.  THE OIL CORPORATION SENT THE
CERTIFICATE TO PETITIONER'S EMPLOYER AND JULY 20, 1932, THE LATTER
DELIVERED IT TO PETITIONER IN TEXAS.  THE DEFENDANT DID NOT DEAL WITH
THE PLAINTIFF OR ANY OF THE EMPLOYEES OF THE REFINING COMPANY WITH
REFERENCE TO THE INSURANCE, CERTIFICATES ISSUED UNDER THE POLICY OR
PREMIUMS.  ALL ITS DEALINGS WERE WITH THE OIL CORPORATION.  PETITIONER
BECAME TOTALLY DISABLED PRIOR TO TERMINATION OF HIS EMPLOYMENT WHICH
ENDED OCTOBER 8, 1932.  HIS INSURANCE WAS CANCELED AS OF THAT DATE. 

1.  THE OIL CORPORATION AND RESPONDENT INTENDED, AND THE POLICY
DEFINITELY DECLARES, THAT PENNSYLVANIA LAW SHOULD GOVERN.  UNDOUBTEDLY,
AS BETWEEN EMPLOYER AND INSURER, PENNSYLVANIA LAW CONTROLS."  FN1  IN
EVERY FORUM A CONTRACT IS GOVERNED BY THE LAW WITH A VIEW TO WHICH IT
WAS MADE."  FN2  BUT THE PRECISE ISSUE FOR DECISION IS WHETHER, AS
BETWEEN PETITIONER AND INSURER, THE POLICY PROVISION REQUIRING NOTICE
OF CLAIM IS GOVERNED BY PENNSYLVANIA LAW OR TEXAS LAW.  PETITIONER AND
OTHER INSURED EMPLOYEES WERE NOT PARTIES TO, NOR DID THEY HAVE ANY
VOICE IN, THE NEGOTIATION OR CONSUMMATION OF THE CONTRACT.  THE TERMS
OF THE POLICY WERE SETTLED BY THE OIL CORPORATION AND RESPONDENT. 
ELIGIBLE EMPLOYEES WERE GIVEN OPPORTUNITY UPON SPECIFIED CONDITIONS TO
HAVE INSURANCE BY GIVING PAYROLL DEDUCTION ORDERS APPROVED BY THEIR
EMPLOYER.  THE POLICY DID NOT OF ITSELF INSURE PETITIONER OR ANY OTHER
PERSON.  IT MERELY MADE AVAILABLE SPECIFIED INSURANCE TO CERTAIN
EMPLOYEES.  FOR THE PAYMENT OF PREMIUMS THE INSURER LOOKED ONLY TO THE
CORPORATION.  THE LATTER, FOR THE BENEFIT OF ITS INSURED EMPLOYEES,
ASSUMED THE BURDEN OF PAYING TO THE INSURER PREMIUMS TO WHICH THEY BY
THE DEDUCTION ORDERS HAD CONTRIBUTED.  FN3  BY HIS APPLICATION
PETITIONER ACCEPTED THE PROVISIONS OF THE POLICY INCLUDING THE
AGREEMENT OF THE OIL CORPORATION AND RESPONDENT THAT THE POLICY IS
GOVERNED BY PENNSYLVANIA LAW. 

2.  PETITIONER INSISTS THAT THE DELIVERY OF THE CERTIFICATE IN TEXAS
MADE THE LAW OF THAT STATE, ART. 5546, APPLICABLE.  BUT THE CERTIFICATE
IS NOT A PART OF THE CONTRACT OF, OR NECESSARY TO, THE INSURANCE.  FN4
IT IS NOT INCLUDED AMONG THE DOCUMENTS DECLARED "TO CONSTITUTE THE
ENTIRE CONTRACT OF INSURANCE."  PETITIONER WAS INSURED ON THE TAKING
EFFECT OF THE POLICY LONG BEFORE THE ISSUE OF THE CERTIFICATE.  IT DID
NOT AFFECT ANY OF THE TERMS OF THE POLICY.  IT WAS ISSUED TO THE END
THAT THE INSURED EMPLOYEE SHOULD HAVE THE INSURER'S STATEMENT OF
SPECIFIED FACTS IN RESPECT OF PROTECTION TO WHICH HE HAD BECOME
ENTITLED UNDER THE POLICY.  IT SERVED MERELY AS EVIDENCE OF THE
INSURANCE OF THE EMPLOYEE.  PETITIONER'S RIGHTS AND RESPONDENT'S
LIABILITY WOULD HAVE BEEN THE SAME IF THE POLICY HAD NOT PROVIDED FOR
ISSUE OF THE CERTIFICATE.  AND PLAINLY DELIVERY OF THE CERTIFICATE BY
THE REFINING COMPANY TO PETITIONER IN TEXAS HAS NO BEARING UPON THE
QUESTION WHETHER PENNSYLVANIA LAW OR TEXAS LAW GOVERNS IN RESPECT OF
THE NOTICE OF CLAIM.  WE ARE UNABLE TO AGREE WITH DECISIONS OF THE
COURT OF CIVIL APPEALS OF TEXAS IN CASES SIMILAR TO THIS THAT THE
CERTIFICATE IS A PART OF THE CONTRACT OF INSURANCE OR THAT ITS DELIVERY
IS NECESSARY TO MAKE THE POLICY EFFECTIVE.  FN5  NOR ARE WE REQUIRED TO
FOLLOW THEIR CONSTRUCTION.  FN6 

3.  IN SUPPORT OF HIS CONTENTION THAT TEXAS LAW APPLIES PETITIONER
SUGGESTS THAT THE INSURER, ACTING THROUGH THE EMPLOYER AS ITS AGENT IN
THAT STATE, SOLICITED AND PROCURED HIM TO TAKE INSURANCE UNDER THE
POLICY.  THERE IS NO EVIDENCE THAT THE INSURER EXPRESSLY AUTHORIZED THE
OIL CORPORATION OR ANY OF ITS SUBSIDIARIES TO ACT FOR IT IN
CONSUMMATING INSURANCE UNDER THE POLICY.  PETITIONER'S ELECTION AND THE
EMPLOYER'S APPLICATION FOR THE POLICY WERE MADE BEFORE THE TEXAS BOARD
AUTHORIZED THE INSURER TO DO BUSINESS IN THAT STATE.  BY UNCONTRADICTED
EVIDENCE IT IS SHOWN THAT THE INSURER DID NOT QUALIFY TO SOLICIT OR
WRITE INSURANCE OR ACCEPT ANY APPLICATION ORIGINATING THERE.  EMPLOYERS
REGARD GROUP INSURANCE NOT ONLY AS PROTECTION AT LOW COST FOR THEIR
EMPLOYEES BUT ALSO AS ADVANTAGEOUS TO THEMSELVES IN THAT IT MAKES FOR
LOYALTY, LESSENS TURN-OVER AND THE LIKE.  FN7  WHEN PROCURING THE
POLICY, OBTAINING APPLICATIONS OF EMPLOYEES, TAKING PAYROLL DEDUCTION
ORDERS, REPORTING CHANGES IN THE INSURED GROUP, PAYING PREMIUMS AND
GENERALLY IN DOING WHATEVER MAY SERVE TO OBTAIN AND KEEP THE INSURANCE
IN FORCE, EMPLOYERS ACT NOT AS AGENTS OF THE INSURER BUT FOR THEIR
EMPLOYEES OR FOR THEMSELVES.  FN8  AND WHOLLY IN ACCORD WITH THAT VIEW
ARE THE ACTS DONE IN TEXAS THAT ARE CLAIMED BY PETITIONER TO BE
ATTRIBUTABLE TO THE REFINING COMPANY OR ITS AGENTS.  THEY ARE:  THE
TERMINATION OF THE EARLIER POLICIES; ACCEPTANCE OF PETITIONER'S RELEASE
OF CLAIMS UNDER THEM AND HIS APPLICATION UNDER THE NEW POLICY BY THE
GIVING OF PAYROLL DEDUCTION ORDERS; DELIVERY OF THE CERTIFICATE TO
PETITIONER; THE FORWARDING TO THE OIL CORPORATION OF THE AMOUNTS
DEDUCTED FROM HIS PAY ON ACCOUNT OF PREMIUMS.  NONE OF THESE WAS DONE
FOR OR ON BEHALF OF THE INSURER.  THE UNDISPUTED CIRCUMSTANTIAL FACTS
REQUIRE THE CONCLUSION THAT THE EMPLOYER ACTED NOT AS AGENT OF THE
INSURER BUT FOR AND ON BEHALF OF PETITIONER AND OTHER INSURED EMPLOYEES
AND IN ITS OWN INTEREST.  FN9    4.  PETITIONER CITES ARTS. 5054 AND
5056, REVISED CIVIL STATUTES, AS OPPOSED TO THE LOWER COURT'S RULING:
"IF EMPLOYES IN TEXAS DESIRE TO JOIN IN AN INSURANCE PLAN ABOUT TO BE
SET UP OR ALREADY IN OPERATION IN PENNSYLVANIA, AND EITHER IN PERSON OR
THROUGH THEIR EMPLOYER TAKE STEPS IN PENNSYLVANIA TO DO SO, THE LAWS OF
TEXAS DO NOT CONTROL IT."  ARTICLE 5054 APPLIES ONLY TO CONTRACTS OF
INSURANCE MADE BY AN INSURANCE COMPANY DOING BUSINESS IN TEXAS.  FN10
THE RESPONDENT DID NO BUSINESS IN THAT STATE.  FN11  ARTICLE 5056
MERELY DECLARES THAT ONE WHO IN TEXAS DOES SPECIFIED THINGS IN RESPECT
OF INSURANCE SHALL BE HELD TO BE THE AGENT OF THE INSURANCE COMPANY FOR
WHICH THE ACT IS DONE OR THE RISK TAKEN "AS FAR AS RELATES TO ALL THE
LIABILITIES, DUTIES, REQUIREMENTS AND PENALTIES SET FORTH IN THIS
CHAPTER."  CLEARLY THERE IS NOTHING IN THAT ARTICLE AS EXPOUNDED BY THE
SUPREME COURT OF TEXAS (INSURANCE CO. V. WALKER, 94 TEX. 473; 61 S.W.
711) THAT HAS ANY BEARING ON THE QUESTION UNDER CONSIDERATION.  THE
CHALLENGED RULING IS SOUND AND WELL SUPPORTED BY OUR DECISIONS.  FN12 

5.  THE CONCLUSION THAT PENNSYLVANIA LAW GOVERNS THE POLICY PROVISION
REQUIRING NOTICE OF CLAIM IS SUPPORTED NOT ONLY BY THE MAKING AND
DELIVERY OF THE CONTRACT OF INSURANCE IN THAT STATE, THE DECLARATION IN
THE POLICY THAT PENNSYLVANIA LAW SHALL GOVERN AND PETITIONER'S
ACCEPTANCE OF THE INSURANCE ACCORDING TO THE TERMS OF THE POLICY BUT
ALSO BY THE PURPOSE OF THE PARTIES TO THE CONTRACT THAT EVERYWHERE IT
SHALL HAVE THE SAME MEANING AND GIVE THE SAME PROTECTION AND THAT
INEQUALITIES AND CONFUSION LIABLE TO RESULT FROM APPLICATIONS OF
DIVERSE STATE LAWS SHALL BE AVOIDED.  FN13  AFFIRMED. 

FN1  EQUITABLE LIFE SOCIETY V. CLEMENTS, 140 U.S. 226, 232.  MUTUAL
LIFE INS. CO. V. COHEN, 179 U.S. 262, 264-265, 267.  NORTHWESTERN
MUTUAL LIFE INS. CO. V. MCCUE, 223 U.S. 234, 246-247.  NEW YORK LIFE
INS. CO. V. DODGE, 246 U.S. 357, 372 ET SEQ. MUTUAL LIFE INS. CO. V.
LIEBING, 259 U.S. 209, 214.  HARTFORD INDEMNITY CO. V. DELTA CO., 292
U.S. 143, 150.  CF. SEEMAN V. PHILADELPHIA WAREHOUSE CO., 274 U.S. 403,
408-409.  HOME INSURANCE CO. V. DICK, 281 U.S. 397, 408.  JOHN HANCOCK
MUTUAL LIFE INS. CO. V. YATES, 299 U.S. 178. 

FN2  WAYMAN V. SOUTHARD, 10 WHEAT.  1, 48.  PRITCHARD V. NORTON, 106
U.S. 124, 136. 

FN3  SEE MEYERSON V. NEW IDEA HOSIERY CO., 217 ALA. 153, 157; 115 SO.
94. 

FN4  ALL STATES LIFE INS. CO. V. TILLMAN, 226 ALA. 245, 248; 146 SO.
393.  EQUITABLE LIFE ASSURANCE SOCIETY V. AUSTIN, 255 KY. 23, 26; 72
S.W.(2D) 716.  SEAVERS V. METROPOLITAN LIFE INS. CO., 132 MISC. 719,
722; 230 N.Y.S. 366.  THULL V. EQUITABLE LIFE ASSURANCE SOCIETY, 40
OHIO APP. 486, 488.  METROPOLITAN LIFE INS. CO. V. LEWIS (LA. APP.) 142
SO. 721, 722.  HARDIE V. METROPOLITAN LIFE INS. CO. (MO. APP.) 7
S.W.(2D) 746, 747.  MCBRIDE V. CONNECTICUT GENERAL LIFE INS. CO., 14
F.SUPP.  240, 241. 

FN5  CONNECTICUT GENERAL LIFE INS. CO. V. MOORE, 75 S.W.(2D) 329. 
CONNECTICUT GENERAL LIFE INS. CO. V. DENT, 84 S.W.(2D) 250. 
CONNECTICUT GENERAL LIFE INS. CO. V. LOCKWOOD, 84 S.W.(2D) 245. 
METROPOLITAN LIFE INS. CO. V. WORTON, 70 S.W.(2D) 216.  METROPOLITAN
LIFE INS. CO. V. WANN, 81 S.W.(2D) 298. 

FN6  CARPENTER V. PROVIDENCE WASHINGTON INSURANCE CO., 16 PET. 495,
511-512.  WASHBURN & MOEN MFG. CO. V. RELIANCE INS. CO., 179 U.S. 1,
15.  AETNA LIFE INS. CO. V. MOORE, 231 U.S. 543, 559.  SEE SWIFT V.
TYSON, 16 PET. 1, 19.  B. & W. TAXI CO. V. B. & Y. TAXI CO., 276 U.S.
518, 530, AND CASES CITED. 

FN7  NOHL V. BOARD OF EDUCATION, 27 N.M. 232, 234 ET SEQ.; 199 PAC.
373.  STATE EX REL. THOMPSON V. MEMPHIS, 147 TENN. 658, 663 ET SEQ.;
251 S.W. 46.  AETNA LIFE INS. CO. V. LEMBRIGHT, 32 OHIO APP. 10, 14;
166 N.E. 586.  ENCYCLOPAEDIA OF SOCIAL SCIENCES, VOL. 7, GROUP
INSURANCE, PP. 182, 185. 

FN8  DUVAL V. METROPOLITAN LIFE INS. CO., 82 N.H. 543, 548; 136 ATL.
400.  PEOPLE EX REL. KIRKMAN V. VAN AMRINGE, 266 N.Y. 277, 282; 194
N.E. 754.  CONNECTICUT GENERAL LIFE INS. CO. V. SPEER, 185 ARK. 615,
617; 48 S.W.(2D) 553.  LEACH V. METROPOLITAN LIFE INS. CO., 124 KAN.
584, 589; 261 PAC. 603.  EQUITABLE LIFE ASSURANCE SOCIETY V. HALL, 253
KY. 450, 452-453; 69 S.W.(2D) 977.  DEWEASE V. TRAVELERS INSURANCE CO.,
208 N.C. 732, 734; 182 S.E. 447. 

FN9  SEE NOTE 8. 

FN10  ART. 5054(THEN ART. 4950, REV. CIV. STAT. 1911) IS QUOTED IN
AETNA LIFE INS. CO. V. DUNKEN, 266 U.S. 389, 390-391. 

FN11  CF. MINNESOTA ASSOCIATION V. BENN, 261 U.S. 140, 145. 

FN12  ALLGEYER V. LOUISIANA, 165 U.S. 578, 588.  MINNESOTA
ASSOCIATION V. BENN, 261 U.S. 140, 145.  AETNA LIFE INS. CO. V. DUNKEN,
266 U.S. 389, 399.  HARTFORD INDEMNITY CO. V. DELTA CO., 292 U.S. 143,
149. 

FN13  SEE NOTE 11.  CF. ROYAL ARCANUM V. GREEN, 237 U.S. 531, 542. 
MODERN WOODMEN V. MIXER, 267 U.S. 544, 551. 
..END :






















OPPENHEIMER V. HARRIMAN BANK, 301 U.S. 206 


NO. 588.  ARGUED MARCH 11, 12, 1937.  - DECIDED APRIL 26, 1937.  - 85
F.(2D) 582, REVERSED. 


1.  A FRAUDULENT SALE OF ITS OWN STOCK BY A NATIONAL BANK MAY BE
RESCINDED BY THE DEFRAUDED PURCHASER.  U.S.C., TITLE 12, SECS.
24(SEVENTH), 56, 59, AND 83, DO NOT PREVENT.  P. 211. 

2.  WHERE, THROUGH MISREPRESENTATION BY ITS OFFICERS, A NATIONAL BANK
MAKES A FRAUDULENT SALE OF ITS OWN STOCK BELONGING TO AN UNDISCLOSED
PRINCIPAL, IT IS LIABLE TO THE PURCHASER JUST AS THOUGH IT HAD ACTED
FOR ITSELF.  P. 212. 

3.  THE LIABILITY OF A NATIONAL BANK TO A PURCHASER WHO WAS DEFRAUDED
IN A FRAUDULENT SALE BY THE BANK OF ITS OWN STOCK, IS COVERED BY THE
PHRASE "CONTRACTS, DEBTS AND ENGAGEMENTS" FOR WHICH STOCKHOLDERS ARE
INDIVIDUALLY RESPONSIBLE (U.S.C., TITLE 12, SEC. 64), AND THE PROCEEDS
OF ASSESSMENTS AGAINST STOCKHOLDERS, AS ASSETS OF THE RECEIVERSHIP, MAY
BE CHARGED WITH SUCH LIABILITY.  P. 212. 

4.  A CLAIM AGAINST A NATIONAL BANK BY A STOCKHOLDER WHO RESCINDED,
ON ACCOUNT OF FRAUD, A SALE TO HIM BY THE BANK OF ITS OWN STOCK - THE
STOCKHOLDER HAVING PAID THE COMPTROLLER'S ASSESSMENT LEVIED ON HIM
AFTER THE BANK'S INSOLVENCY - HELD ENTITLED TO RANK ON A PARITY WITH
THE CLAIMS OF OTHER UNSECURED CREDITORS IN THE RECEIVERSHIP ESTATE.  P.
213. 

OPPENHEIMER V. HARRIMAN NATIONAL BANK & TRUST CO. ET AL.* 

*TOGETHER WITH NO. 670, HARRIMAN NATIONAL BANK & TRUST CO. V.
OPPENHEIMER, ALSO ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

WRITS OF CERTIORARI, 300 U.S. 647, TO REVIEW A JUDGMENT REVERSING A
JUDGMENT OF THE DISTRICT COURT IN A SUIT AGAINST THE BANK TO RECOVER
THE PURCHASE PRICE OF SHARES OF THE BANK'S STOCK, THE SALE OF WHICH TO
THE PLAINTIFF WAS ALLEGED TO HAVE BEEN INDUCED BY FRAUD. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

FOR SOME YEARS PRIOR TO THE OCCURRENCES OUT OF WHICH THIS LITIGATION
AROSE THE DEFENDANT BANK WAS DOING BUSINESS IN NEW YORK CITY.  BEING
UNABLE TO MEET CURRENT DEMANDS, IT CLOSED MARCH 3, 1933.  MARCH 13 A
CONSERVATOR WAS APPOINTED; FN1  OCTOBER 16 THE COMPTROLLER DECLARED IT
INSOLVENT AND APPOINTED A RECEIVER.  FN2  LATER, HE ASSESSED THE
STOCKHOLDERS PAR VALUE OF THEIR STOCK.  FN3  MAY 31, OPPENHEIMER
BROUGHT THIS ACTION IN THE FEDERAL COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK TO RECOVER DAMAGES UPON AN EXECUTED RESCISSION OF A SALE TO
HIM OF STOCK OF THE BANK BY MEANS OF FRAUDULENT REPRESENTATIONS MADE BY
ITS PRESIDENT AND VICE PRESIDENT.  AT THE CLOSE OF THE EVIDENCE, THE
PARTIES RESPECTIVELY SOUGHT A DIRECTED VERDICT, AND, NO REQUEST FOR
SUBMISSION OF ANY ISSUE TO THE JURY HAVING BEEN MADE,  FN4  THE COURT
FOUND THE BANK NOT ENRICHED BY THE SALE, AND THE PRESIDENT AND VICE
PRESIDENT WITHOUT ACTUAL OR APPARENT AUTHORITY TO MAKE REPRESENTATIONS
IN CONNECTION WITH THE SALE, AND DIRECTED A VERDICT AND ENTERED
JUDGMENT FOR THE BANK.  THE CIRCUIT COURT OF APPEALS REVERSED AND
ORDERED THAT JUDGMENT FOR THE AMOUNT DEMANDED IN THE COMPLAINT BE
ENTERED AGAINST THE BANK COLLECTIBLE OUT OF ASSETS OF THE RECEIVERSHIP
AFTER PAYMENT IN FULL OF ALL WHO WERE CREDITORS WHEN THE BANK BECAME
INSOLVENT.  85 F.(2D) 582. 

PLAINTIFF APPLIED FOR A WRIT OF CERTIORARI, CONTENDING THAT THE
CIRCUIT COURT OF APPEALS ERRED IN HOLDING THAT HIS JUDGMENT IS NOT
ENTITLED TO RANK WITH OTHER UNSECURED CREDITORS' CLAIMS AND THAT ITS
RULING CONFLICTS WITH DECISIONS OF OTHER CIRCUIT COURTS OF APPEALS. 
FN5  DEFENDANT PRESENTED ITS CROSS-PETITION ASSERTING THAT THE COURT
ERRED IN HOLDING:  THAT PLAINTIFF IS ENTITLED TO PARTICIPATE IN THE
DISTRIBUTION OF PROCEEDS OF ASSESSMENTS ON STOCKHOLDERS COLLECTED UNDER
12 U.S.C., SEC. 64; THAT IT MAY BE COMPELLED TO TAKE AND PAY FOR SHARES
OF ITS OWN CAPITAL STOCK IN A MANNER NOT AUTHORIZED BY 12 U.S.C., SEC.
83; THAT IT IS LIABLE FOR FRAUD OF ITS OFFICERS IN CONNECTION WITH THE
SALE OF SHARES WHICH WERE THE PROPERTY OF ANOTHER, THE BANK NOT BEING
ENRICHED BY THE TRANSACTION; AND THAT PLAINTIFF IS ENTITLED TO JUDGMENT
AGAINST DEFENDANT.  THIS COURT GRANTED BOTH PETITIONS. 

NOVEMBER 1, 1930, PLAINTIFF PURCHASED 10 SHARES OF THE BANK'S STOCK
FOR $15,120.  HE WAS INDUCED TO BUY THE STOCK BY FALSE AND FRAUDULENT
REPRESENTATIONS OF THE PRESIDENT AND VICE PRESIDENT OF THE BANK.  IT
SENT HIM A BILL FOR THE PURCHASE PRICE.  HAVING CONSIDERABLY MORE ON
DEPOSIT IN THE BANK, PLAINTIFF SENT HIS CHECK FOR THAT AMOUNT DRAWN ON
IT AND PAYABLE TO ITS ORDER.  A VICE PRESIDENT ACKNOWLEDGED RECEIPT OF
THE CHECK AND SENT PLAINTIFF A STOCK CERTIFICATE FOR THE SHARES
PURCHASED.  HIS CHECK MARKED PAID AND THE BILL RECEIPTED WERE RETURNED
TO HIM.  PLAINTIFF RECEIVED DIVIDENDS ON THE STOCK AMOUNTING TO $525
AND SOLD TWO SHARES FOR $2,408.  LATER, MAY 6, 1933, HE GAVE THE BANK
NOTICE OF RESCISSION, TENDERED IT THE CERTIFICATE AND DEMANDED THAT HIS
ACCOUNT BE CREDITED WITH THE AMOUNT OF HIS PAYMENT LESS THE SUMS HE HAD
RECEIVED AS DIVIDENDS AND FROM THE SALE OF THE TWO SHARES.  THE BANK
REJECTED HIS DEMAND; HE BROUGHT THIS SUIT FOR $12,187 WITH INTEREST AND
COSTS.  IN ADDITION TO A GENERAL DENIAL, DEFENDANT'S ANSWER SET UP
AFFIRMATIVE DEFENSES OF RATIFICATION AFTER KNOWLEDGE OF THE FRAUD AND
OF LACHES BUT AT THE TRIAL THESE WERE ABANDONED. 

DEFENDANT'S EVIDENCE TENDED TO PROVE THAT THE STOCK WAS NOT OWNED BY
IT BUT BY HARRIMAN SECURITIES CORPORATION, THE SHARES OF WHICH WERE
HELD IN TRUST FOR THE BENEFIT OF THE STOCK OF THE BANK.  THE BANK
MAINTAINED IN ITS BOND DEPARTMENT A "SUSPENSE ACCOUNT" IN WHICH WERE
REFLECTED PURCHASES AND SALES OF ITS OWN STOCK MADE BY IT FOR ACCOUNT
OF THAT CORPORATION.  THE BANK LENT THE AFFILIATE THE SUMS REQUIRED FOR
PURCHASING THE STOCK AND THE AMOUNTS WERE CHARGED TO THE LATTER.  WHEN
THE STOCK WAS SOLD THE PROCEEDS WERE CREDITED TO THE AFFILIATE.  STOCK
SO PURCHASED WAS TAKEN IN THE NAME OF KELLY, NOT AN EMPLOYEE OF THE
BANK, AS NOMINEE OF THE AFFILIATE.  THE SHARES IN QUESTION WERE SO
HELD.  OF THE AMOUNT PAID BY PLAINTIFF $100 WAS RETAINED BY THE BANK AS
ITS COMMISSION FOR MAKING THE SALE; THE BALANCE WAS ENTERED IN THE
SUSPENSE ACCOUNT.  PLAINTIFF HAD NO KNOWLEDGE OF ANY TRANSACTIONS
BETWEEN THE BANK AND ITS AFFILIATE; HE BELIEVED HE WAS DEALING WITH THE
BANK AS PRINCIPAL.  HE HAS PAID THE ASSESSMENT THAT THE COMPTROLLER
MADE AGAINST HIM AS STOCKHOLDER AND HAS NOT CHALLENGED ITS VALIDITY OR
SOUGHT REPAYMENT OF ANY PART OF IT. 

1.  DEFENDANT MAINTAINS THAT A NATIONAL BANK MAY NOT INCUR LIABILITY
TO RETAKE SHARES OF ITS STOCK SOLD BY IT EITHER AS PRINCIPAL OR AGENT. 

IT CITES PROVISIONS OF TITLE 12, U.S.C., GOVERNING NATIONAL BANKING
ASSOCIATIONS, THE SUBSTANCE OF WHICH FOLLOWS.  SECTION 24(SEVENTH)
LIMITS THE BUSINESS OF DEALING IN SECURITIES AND STOCK TO PURCHASING
AND SELLING WITHOUT RECOURSE.  SECTION 56 PROHIBITS WITHDRAWAL OF
CAPITAL BY DIVIDENDS OR OTHERWISE.  SECTION 59 PERMITS REDUCTION OF
CAPITAL BY VOTE OF TWO-THIRDS OF THE STOCK.  SECTION 83 DECLARES THAT
NO SUCH ASSOCIATION SHALL MAKE ANY LOAN OR DISCOUNT ON THE SECURITY OF
ITS OWN CAPITAL STOCK NOR BE A PURCHASER OR HOLD ITS SHARES UNLESS THE
SECURITY OR PURCHASE SHALL BE NECESSARY TO PREVENT LOSS UPON A DEBT
PREVIOUSLY CONTRACTED; IT REQUIRES THAT THE STOCK SO OBTAINED SHALL BE
SOLD WITHIN SIX MONTHS. 

DEFENDANT SUGGESTS THAT, SAVE AS OTHERWISE DEFINITELY AUTHORIZED,
THESE PROVISIONS REQUIRE THAT THE OUTSTANDING STOCK OF A NATIONAL BANK
SHALL NOT BE REDUCED WHILE ITS BANKING OPERATIONS CONTINUE.  ON THAT
BASIS IT MAINTAINS THAT TO ENFORCE RESCISSION WOULD IN EFFECT ALLOW A
NATIONAL BANK TO REPURCHASE ITS STOCK AND SO TO ACCOMPLISH BY
INDIRECTION WHAT IT MAY NOT DO DIRECTLY. 

THE BANK HAD POWER TO SELL THE STOCK IN QUESTION WHETHER ACQUIRED BY
IT IN ACCORDANCE WITH OR CONTRARY TO SEC. 83,  FN6  AND WHETHER THE
STOCK BELONGED TO IT, THE AFFILIATE OR A THIRD PARTY.  FN7  AS THE
STOCK WAS FULLY PAID IN WHEN ORIGINALLY ISSUED, RECOVERY BY THE
PLAINTIFF WOULD NOT VIOLATE STATUTORY PROVISIONS PROHIBITING REDUCTION
OF CAPITAL.  FN8  IT IS TO BE REMEMBERED THAT PLAINTIFF HAS FULLY PAID
HIS STATUTORY LIABILITY.  THE BANK'S LIABILITY DOES NOT DIFFER FROM
WHAT IT WOULD BE IF, INSTEAD OF SHARES OF ITS OWN STOCK, IT HAD
FRAUDULENTLY SOLD TO PLAINTIFF BONDS OR OTHER INVESTMENT SECURITIES. 
FN9  IT CITES SEC. 24(SEVENTH) AS CONSTRUED IN AWOTIN V. ATLAS EXCHANGE
BANK, 295 U.S. 209.  BUT THAT DECISION DOES NOT SUPPORT ITS
CONTENTION.  THERE THE BANK SOLD BONDS AND IN CONNECTION WITH THE SALE
AGREED WITH THE BUYER THAT AT MATURITY IT WOULD REPURCHASE AT PAR VALUE
AND ACCRUED INTEREST.  WE HELD THE AGREEMENT REPUGNANT TO SEC.
24(SEVENTH) REQUIRING SALES TO BE WITHOUT RECOURSE.  THE SALE WAS A
VALID EXECUTED CONTRACT; THE BANK'S PROMISE TO REPURCHASE WAS FORBIDDEN
BY LAW AND THEREFORE VOID.  THE PURCHASER, CHARGEABLE WITH KNOWLEDGE OF
THE STATUTE, COULD NOT INVOKE ESTOPPEL.  THE STATUTES RELIED ON BY
DEFENDANT CANNOT REASONABLY BE CONSTRUED TO FORBID RESCISSION OF
FRAUDULENT SALES BY NATIONAL BANKS OF THEIR OWN STOCK.  IN THE ABSENCE
OF LANGUAGE UNQUESTIONABLY DISCLOSING THAT PURPOSE, CONGRESS MAY NOT BE
HELD TO HAVE SO INTENDED.  THERE IS NO EVIDENCE OF THAT INTENTION. 
DEFRAUDED PURCHASERS MAY RESCIND FRAUDULENT SALES BY NATIONAL BANKS OF
THEIR OWN CAPITAL STOCK. 

2.  DEFENDANT MAINTAINS THAT IT MAY NOT BE HELD LIABLE FOR
MISREPRESENTATIONS MADE BY ITS OFFICERS WHEN MAKING THE SALE TO
PLAINTIFF.  IT DOES NOT CHALLENGE THE AUTHORITY OF ITS PRESIDENT OR
VICE PRESIDENT TO ACT FOR IT IN MAKING SALES OF INVESTMENT SECURITIES
OR STOCK.  THROUGH THEM IT REPRESENTED TO PLAINTIFF THAT THE SHARES
OFFERED HIM BELONGED TO AN ESTATE, MADE THE SALE, OBTAINED HIS CHECK
FOR THE PURCHASE PRICE, TOOK THE AMOUNT FROM HIS DEPOSIT, ISSUED AND
SENT HIM A STOCK CERTIFICATE.  IF, AS IT CLAIMED AT THE TRIAL, THE
SHARES BELONGED TO ITS AFFILIATE, THE LATTER WAS AN UNDISCLOSED
PRINCIPAL, AND PLAINTIFF WAS ENTITLED TO LOOK TO THE BANK AS IF ACTING
FOR ITSELF.  FN10  IT IS IMMATERIAL WHETHER, AS BETWEEN THE BANK AND
ITS AFFILIATE, THE AMOUNT OBTAINED FROM PLAINTIFF BELONGED TO THE
FORMER OR WAS RECEIVED BY IT AS AGENT FOR THE LATTER. 

3.  DEFENDANT MAINTAINS THAT THE PROCEEDS OF ASSESSMENTS MAY NOT BE
CHARGED WITH THE CLAIM OF A RESCINDING SHAREHOLDER. 

IT ARGUES THAT, THE BANK BEING INSOLVENT AND IN RECEIVERSHIP, THE
RECOVERY CANNOT BE HAD FROM THE ASSETS OF THE BANK AND WILL OF
NECESSITY COME OUT OF THE MONEY PAID BY SHAREHOLDERS.  IT CALLS
ATTENTION TO SEC. 64 WHICH DECLARES THAT STOCKHOLDERS SHALL BE HELD
INDIVIDUALLY RESPONSIBLE FOR ALL "CONTRACTS, DEBTS, AND ENGAGEMENTS" OF
THE BANK. 

BUT THAT CONTENTION MISCONSTRUES THE JUDGMENT DIRECTED BELOW.  IT IS
TO BE "COLLECTIBLE OUT OF THE ASSETS OF THE RECEIVERSHIP AFTER PAYMENT
IN FULL" OF OTHERS.  MANIFESTLY THE ASSETS REFERRED TO ARE NOT LIMITED
TO ASSESSMENTS COLLECTED FROM STOCKHOLDERS BUT INCLUDE ASSETS PASSING
FROM THE BANK TO THE RECEIVER.  THE PHRASE QUOTED FROM SEC. 64 RELATES
TO THE LIABILITY OF STOCKHOLDERS ENFORCEABLE UPON FINDING OF
INSOLVENCY, APPOINTMENT OF RECEIVER AND ASSESSMENT BY THE COMPTROLLER,
AND NOT TO PROVABILITY OR RANK OF CLAIMS.  HIS DETERMINATION AS TO THE
NECESSITY AND AMOUNT OF ASSESSMENTS AGAINST SHAREHOLDERS IS CONCLUSIVE
UPON THEM AND IMMUNE FROM COLLATERAL ATTACK.  FN11 THE BANK MAY NOT IN
THIS SUIT INVOKE THE RIGHTS OF STOCKHOLDERS TO DEFEAT PLAINTIFF'S CLAIM
AGAINST IT. 

MOREOVER, THE QUOTED PROVISION WAS ENACTED FOR THE PROTECTION OF THE
PUBLIC DEALING WITH NATIONAL BANKS AND SHOULD BE REASONABLY CONSTRUED
IN FAVOR OF CLAIMANTS AGAINST THEM.  TO GIVE FULL EFFECT TO THE PURPOSE
OF CONGRESS A LIBERAL CONSTRUCTION IS REQUIRED.  A TECHNICAL OR NARROW
VIEW WOULD BE INCONSISTENT WITH THE TRUE INTENT AND MEANING OF THE
MEASURE.  THERE IS NOTHING IN THE PURPOSE OR CONTEXT OF THE STATUTE TO
DETRACT AUGHT FROM THE SIGNIFICANCE THAT FAIRLY MAY BE ATTRIBUTED TO
THE WORDS USED.  THEY ARE BROAD ENOUGH TO INCLUDE ALL PECUNIARY
LIABILITIES AND OBLIGATIONS OF THE BANK.  INDEED, THAT IS A WELL
RECOGNIZED MEANING OF THE WORD "ENGAGEMENT."  PLAINTIFF'S CLAIM IS FOR
THE MONEY THE BANK FRAUDULENTLY GOT FROM HIM AND USED IN ITS BUSINESS. 
CLEARLY THAT LIABILITY IS COVERED BY THE PHRASE "CONTRACTS, DEBTS AND
ENGAGEMENTS."  FN12  THE CONSTRUCTION FOR WHICH THE DEFENDANT CONTENDS
CANNOT BE SUSTAINED. 

4.  THERE REMAINS THE QUESTION WHETHER PLAINTIFF'S JUDGMENT IS
ENTITLED TO SHARE EQUALLY IN THE RECEIVERSHIP ESTATE WITH OTHER
UNSECURED CREDITORS' CLAIMS. 

IN 1930 WHEN THE BANK BY FALSE REPRESENTATIONS SOLD HIM THE STOCK AND
BY THAT MEANS OBTAINED THE PRICE OUT OF HIS DEPOSIT IT IMMEDIATELY
BECAME BOUND TO MAKE RESTITUTION.  FN13  THE FRAUDULENT SALE WAS
SUBJECT TO RESCISSION BY THE PLAINTIFF AT ANY TIME BEFORE THE BANK
CLOSED.  NEITHER LAPSE OF TIME WHILE PLAINTIFF REMAINED IGNORANT OF THE
FRAUD NOR INSOLVENCY OF THE BANK DETRACTED FROM ITS LIABILITY.  WE
ASSUME THAT AFTER MARCH 3, 1933, THE BANK WAS WITHOUT MEANS SUFFICIENT
TO MEET CURRENT DEMANDS AND THAT ITS DEBTS EXCEEDED THE VALUE OF ITS
ASSETS PLUS THE STATUTORY LIABILITY OF ITS STOCKHOLDERS.  AFTER THE
APPOINTMENT OF A CONSERVATOR, BUT SOME MONTHS BEFORE THE COMPTROLLER
DECLARED THE BANK INSOLVENT, PLAINTIFF RESCINDED AND BROUGHT THIS
SUIT.  HE CLAIMS NO LIEN, PREFERENCE, OR PRIORITY BUT MERELY SEEKS TO
SHARE IN THE ESTATE AS DO OTHER UNSECURED CREDITORS. 

WHILE STOCKHOLDERS' LIABILITY MAY NOT BE ENFORCED BEFORE INSOLVENCY
AND ASSESSMENT BY THE COMPTROLLER, WE ASSUME, WITHOUT DECIDING, THAT
PLAINTIFF'S POSITION IS THE SAME AS IF THE BANK'S INSOLVENCY HAD BEEN
DECLARED AND A RECEIVER APPOINTED BEFORE HE RESCINDED.  PLAINTIFF
APPEARED BY THE BANK'S RECORDS TO BE A STOCKHOLDER AND, AS AGAINST
CREDITORS FOR WHOSE BENEFIT THE STATUTORY LIABILITY WAS CREATED, WAS
ESTOPPED FROM DENYING THAT STATUS.  FN14  RECOGNIZING THAT THE BANK'S
FRAUD AND HIS RESCISSION AVAILED NOTHING AGAINST THE COMPTROLLER'S
ASSESSMENT, PLAINTIFF PAID THE AMOUNT LAID AGAINST HIM.  THE JUDGMENT
HE SEEKS WOULD ESTABLISH HIS RIGHT TO HAVE THE BANK PAY, BECAUSE
WRONGFULLY OBTAINED FROM HIS DEPOSIT, THE AMOUNT FOR WHICH THIS SUIT IS
BROUGHT.  AND, HAVING FULLY PAID HIS LIABILITY TO THE CREDITORS, THERE
IS NO REASON WHY HIS CLAIM SHOULD BE SUBORDINATED TO CLAIMS OF
STOCKHOLDERS ON ACCOUNT OF THEIR DEPOSIT BALANCES WHEN THE BANK
FAILED.  THE RECORD SHOWS THAT PLAINTIFF THEN HAD A SUBSTANTIAL AMOUNT
ON DEPOSIT.  THE BANK DOES NOT CLAIM THAT, IN RESPECT OF DEPOSITS OR
OTHER INDEBTEDNESS, STOCKHOLDERS ARE NOT ENTITLED TO DISTRIBUTION ON
THE SAME BASIS AS ARE NON-STOCKHOLDING CREDITORS.  THERE IS NO
FOUNDATION FOR ANY SUCH RULE.  SUBSCRIPTION PRICE HAVING BEEN FULLY
PAID TO THE BANK, THE MAXIMUM FOR WHICH STOCKHOLDERS MAY BE HELD FOR
THE BENEFIT OF CREDITORS IS THE PAR VALUE OF THEIR SHARES.  BY PAYMENT
OF THE COMPTROLLER'S ASSESSMENTS THEY FULLY DISCHARGE THEIR LIABILITY
AS STOCKHOLDERS.  AND AS CLAIMANTS THEY STAND ON THE SAME FOOTING AS
OTHER CREDITORS.  FN15  DISCRIMINATION AGAINST THEIR CLAIMS IS NOT
AUTHORIZED BY THE STATUTE.  IT FOLLOWS THAT PLAINTIFF'S JUDGMENT IS
ENTITLED TO RANK ON A PARITY WITH OTHER UNSECURED CREDITORS' CLAIMS. 
FN16    THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS WILL BE REVERSED
AND THE CASE WILL BE REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.  REVERSED. 

FN1  12 U.S.C., SEC. 203. 

FN2  12 U.S.C., SEC. 191. 

FN3  12 U.S.C., SECS. 63, 64; SEE ALSO SEC. 192. 

FN4  BEUTTELL V. MAGONE, 157 U.S. 154, 157.  EMPIRE STATE CATTLE CO.
V. ATCHISON, T. & S.F. RY. CO., 210 U.S. 1, 8.  SENA V. AMERICAN
TURQUOISE CO., 220 U.S. 497, 498.  AMERICAN NATIONAL BANK V. MILLER,
229 U.S. 517, 520.  WILLIAMS V. VREELAND, 250 U.S. 295, 298. 

FN5  SALTER V. WILLIAMS, (C.C.A. 3RD) 244 FED. 126, 129.  FLORIDA
LAND & IMP.  CO. V. MERRILL, (C.C.A.5TH), 52 FED. 77, 80; MERRILL V.
FLORIDA LAND & IMP.  CO., 60 FED. 17.  WILLIAMS V. GREEN, (C.C.A.4TH)
23 F.(2D) 796, 797.  CLARK V. BOSTON-CONTINENTAL NAT. BANK, (C.C.A.
1ST) 84 F.(2D) 605, 607.  AND SEE LANTRY V. WALLACE, 182 U.S. 536,
555. 

FN6  LANTRY V. WALLACE, 182 U.S. 536, 553.  SCOTT V. DEWEESE, 181
U.S. 202, 211.  NATIONAL BANK OF XENIA V. STEWART, 107 U.S. 676. 
NATIONAL BANK V. MATTHEWS, 98 U.S. 621, 629. 

FN7  12 U.S.C. SEC. 24(SEVENTH).  AWOTIN V. ATLAS EXCHANGE BANK, 295
U.S. 209, 212. 

FN8  SALTER V. WILLIAMS, 244 FED. 126, 130. 

FN9  CF. NATIONAL BANK & LOAN CO. V. PETRIE, 189 U.S. 423, 425. 

FN10  MCCLURE V. CENTRAL TRUST CO., 165 N.Y. 108, 128; 58 N.E. 777. 

FN11  SEE FORREST V. JACK, 294 U.S. 158, 162, AND CASES CITED. 

FN12  SEE E.G. CHESAPEAKE & OHIO CANAL CO. V. KNAPP, 9 PET. 541,
566.  UNITED STATES V. STATE BANK, 96 U.S. 30, 35-36.  THOMAS V.
MATTHIESSEN, 232 U.S. 221, 235.  HAVILAND V. CHACE, 39 BARB.  283,
287. 

FN13  CF. BRIGGS V. BRUSHABER, 43 MICH. 330, 332; 5 N.W. 383. 
NORTHROP V. HILL, 57 N.Y. 351, 355.  TRAYNE V. BOARDMAN, 207 MASS. 581,
582; 93 N.E. 846.  SOLLUND V. JOHNSON, 27 MINN. 455, 456; 8 N.W. 271. 
UNION CENTRAL LIFE INSURANCE CO. V. SCHIDLER, 130 IND. 214, 216; 29
N.E. 1071.  GRIFFIN V. LUMBER CO., 140 N.C. 514, 517; 53 S.E. 307. 
MCKAY V. MCCARTHY, 146 IA. 546, 550-551; 123 N.W. 755. 

FN14  SOCTT V. DEWEESE, 181 U.S. 202, 213.  LANTRY V. WALLACE, 182
U.S. 536, 553. 

FN15  RICHARDSON V. OLIVIER, 105 FED. 277, 280. 

FN16  SALTERS V. WILLIAMS, 244 FED. 126, 129.  FLORIDA LAND & IMP. 
CO. V. MERRILL, 52 FED. 77, 80.  WILLIAMS V. GREEN, 23 F.(2D) 796,
797.  CLARK V. BOSTON-CONTINENTAL NAT. BANK, 84 F.(2D) 605, 607. 
..END :























SMITH V. HALL, 301 U.S. 216 


NO. 35.  ARGUED OCTOBER 20, 21, 1936.  REARGUED APRIL 5, 6, 1937.  -
DECIDED APRIL 26, 1937.  - 83 F.(2D) 217, 221, AFFIRMED. 


1.  TWO SUITS IN WHICH DIFFERENT DEFENDANTS, CHARGED AS INFRINGERS,
SET UP THE SAME GROUND OF INVALIDITY AGAINST A PATENT, AND WHICH WERE
TRIED BY THE COURT BELOW ON A JOINT RECORD, MAY BE PRESENTED TO THIS
COURT JOINTLY.  P. 218. 

2.  PATENT NO. 1,262,860, FOR A METHOD OF HATCHING EGGS, HELD INVALID
BECAUSE OF ANTICIPATION.  CF. SMITH V. SNOW, 294 U.S. 1; WAXHAM V.
SMITH, 294 U.S. 20.  P. 219. 

3.  ORAL EVIDENCE HELD INSUFFICIENT IN ITSELF TO ESTABLISH PRIOR USE
OF A PATENTED METHOD, BUT CORROBORATED SUFFICIENTLY BY DOCUMENTARY
EVIDENCE.  P. 222. 

4.  ANTICIPATION OF A PATENTED METHOD IS SHOWN BY KNOWLEDGE OF THE
METHOD, AND ITS USE WITH OPERATIVE SUCCESS, ALTHOUGH WITHOUT FULL AND
PRECISE KNOWLEDGE OF THE SCIENTIFIC PRINCIPLES INVOLVED, AS OUTLINED IN
THE PATENT.  P. 226. 

5.  WHILE, IN ATTACKING A PATENT, A PATENT OFFICE FILE ON AN
ABANDONED APPLICATION MAY NOT BE RELIED ON AS A PRIOR PUBLICATION, IT
MAY BE COMPETENT AND COGENT EVIDENCE OF THE NATURE AND DATE OF AN
EARLIER INVENTION REDUCED TO PRACTICE.  P. 227. 

6.  THE SMITH PATENT WAS SUSTAINED IN THE SNOW AND WAXHAM CASES,
SUPRA, ONLY BY ESTABLISHING THAT NEITHER THE ARRANGEMENT OF THE EGGS,
NOR THE PARTICULAR ORDER IN WHICH THE PROPELLED AIR CURRENT SHOULD
REACH THE EGGS, NOR THE MANNER IN WHICH IT WAS GUIDED OR CONTROLLED, IS
PART OF THE PATENT CLAIMED.  P. 231. 

7.  A PATENTEE WHO HAS SOUGHT AND OBTAINED A BROAD CONSTRUCTION OF
HIS CLAIM, CANNOT NARROW IT SO AS TO AVOID ANTICIPATION BY SHOWING THAT
THE CLAIMED METHOD WAS USED IN A PARTICULAR FORM OF STRUCTURE NOT
CLAIMED.  P. 232. 

8.  IN DETERMINING ANTICIPATION OF A PATENTED METHOD IT IS IMMATERIAL
THAT THE STRUCTURE EMPLOYED IN THE EARLIER USE WAS NEITHER THE BEST
POSSIBLE NOR AS SKILFULLY DESIGNED OR USED AS THAT LATER EMPLOYED BY
THE PATENTEE.  P. 232. 

9.  COMMERCIAL SUCCESS IS NOT A NECESSARY ELEMENT OF A PRIOR USE
ANTICIPATING AND INVALIDATING A PATENT.  P. 233. 

SMITH, EXECUTOR, V. HALL ET AL.* 

*TOGETHER WITH NO. 36, SMITH, EXECUTOR, V. JAMES MANUFACTURING CO.,
ALSO ON CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 298 U.S. 652, TO REVIEW TWO DECREES OF THE COURT BELOW
HOLDING A PATENT INVALID UPON THE GROUND OF ANTICIPATION, AND THEREUPON
REVERSING DECISIONS OF TWO DISTRICT COURTS WHICH HAD HELD THE PATENT
VALID AND INFRINGED.  NO. 35 WAS BROUGHT BY SMITH IN CONNECTICUT FOR
ALLEGED INFRINGEMENT OF CLAIM 1 AGAINST DEFENDANTS OPERATING A LARGE
COMMERCIAL HATCHERY IN THAT STATE.  NO. 36 WAS A LIKE SUIT BY HIM IN
NEW YORK AGAINST A CORPORATION ENGAGED IN THE BUSINESS OF MANUFACTURING
AND SELLING INCUBATORS AND A COMMERCIAL HATCHERIES COMPANY WHICH IT
CONTROLLED. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THESE CASES INVOLVE THE VALIDITY OF THE SMITH PATENT NO. 1,262,860,
OF APRIL 16, 1918, AND MORE PARTICULARLY THE QUESTION WHETHER SMITH WAS
ANTICIPATED BY THE PRIOR USE OF THE PATENTED INVENTION BY HASTINGS. 

IN SMITH V. SNOW, 294 U.S. 1(1935), WE HELD THE PATENT VALID AND
INFRINGED.  BUT IN THAT CASE THE HASTINGS PRIOR USE WAS NOT PRESENTED
OR CONSIDERED.  AT THAT TIME THE PRESENT INFRINGEMENT SUITS BROUGHT BY
PETITIONER AGAINST RESPONDENTS HALL AND JAMES WERE PENDING IN THE
DISTRICT COURTS FOR CONNECTICUT AND FOR WESTERN NEW YORK,
RESPECTIVELY.  IN VIEW OF THE DEFINITION GIVEN TO THE PATENT BY OUR
DECISION, THE HASTINGS DEFENSE ASSUMED AN IMPORTANCE IN THESE SUITS
APPARENTLY NOT ATTRIBUTED TO IT IN EARLIER LITIGATION, AND IT HAS BEEN
DEVELOPED IN THE RECORDS NOW BEFORE US MORE FULLY THAN IN ANY EARLIER
CASE.  FN1 

THE DECREES OF THE DISTRICT COURTS REJECTING THE DEFENSE WERE
REVERSED BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT, 83 F.(2D) 217,
221, WHICH FOUND PRIOR USE BY HASTINGS.  WE BROUGHT THE CASES HERE ON
CERTIORARI, TO RESOLVE THE CONFLICT IN THE RESULT OF THE DECISIONS
BELOW WITH THAT OF OUR DECISION IN SMITH V. SNOW, SUPRA.  THE TWO SUITS
CAME TO THE COURT BELOW, AS THEY DO HERE, UPON DIFFERENT RECORDS.  THE
COURT TREATED THE CASES AS THOUGH THE TWO RECORDS CONSTITUTED A JOINT
RECORD APPLICABLE TO BOTH CASES, AND PETITIONER PRESENTS THE CASES HERE
JOINTLY.  SEE BUTLER V. EATON, 141 U.S. 240, 243, 244; DIMMICK V.
TOMPKINS, 194 U.S. 540, 548; WASHINGTON & IDAHO R. CO. V. COEUR D'ALENE
RY. CO., 160 U.S. 101, 103; DEBEARN V. SAFE DEPOSIT & TRUST CO., 233
U.S. 24, 32; WEST OHIO GAS CO. V. PUBLIC UTILITIES COMM'N, 294 U.S. 63,
70-71; CF. REED V. ALLEN, 286 U.S. 191, 198, 199. 

THE HALL SUIT IS FOR AN INFRINGEMENT OF CLAIM 1 OF THE PATENT, AND
THE JAMES SUIT FOR INFRINGEMENT OF CLAIMS 1, 2, 3 AND 5.  CLAIMS 1, 2
AND 3 ARE CLAIMS FOR A METHOD OF INCUBATION OF A PLURALITY OF EGGS. 
CLAIM 5 IS A CLAIM FOR AN APPARATUS ADAPTED TO THE USE OF THE METHOD
AND IS OF SIGNIFICANCE IN THE PRESENT LITIGATION ONLY IF A METHOD CLAIM
IS SUSTAINED.  CLAIM 1 MAY BE TAKEN AS TYPICAL OF THE OTHER METHOD
CLAIMS.  IN SMITH V. SNOW, SUPRA, ITS ESSENTIAL ELEMENTS WERE STATED TO
BE (P. 8): 

"(A) THE ARRANGEMENT OF THE EGGS AT DIFFERENT LEVELS IN STAGED
INCUBATION IN A CLOSED CHAMBER, HAVING RESTRICTED OPENINGS OF
SUFFICIENT CAPACITY FOR THE ESCAPE OF FOUL AIR WITHOUT UNDUE LOSS OF
MOISTURE; (B) THE APPLICATION TO THE EGGS OF HEATED AIR IN A CURRENT
CREATED BY MEANS OTHER THAN VARIATION OF TEMPERATURE; AND (C), AS
MARKING THE BOUNDARIES OF THE CLAIM, THE CURRENT OF AIR IS TO BE OF
SUFFICIENT VELOCITY TO CIRCULATE, DIFFUSE AND MAINTAIN THE AIR
THROUGHOUT THE CHAMBER AT SUBSTANTIALLY THE SAME TEMPERATURE WHEREBY
THE AIR WILL BE VITALIZED, MOISTURE CONSERVED, AND THE UNITS OF HEAT
CARRIED FROM THE EGGS IN THE MORE ADVANCED STAGE TO THOSE IN THE LESS
ADVANCED." 

STAGED INCUBATION IS THE SUCCESSIVE SETTING OF EGGS IN THE SAME
INCUBATOR AT BRIEF INTERVALS.  AT DIFFERENT STAGES IN THE COURSE OF THE
THREE WEEKS PERIOD OF INCUBATION THE EGGS HAVE DIFFERENT TEMPERATURES,
THOSE IN THE EARLIER HAVING LOWER TEMPERATURES THAN THOSE IN THE LATER
STAGES.  WHEN SUBJECTED TO A TEMPERATURE APPROXIMATING THAT OF BODY
HEAT, THE EGGS OF THE EARLIER STAGES ABSORB HEAT AND THOSE OF THE LATER
STAGES GIVE OFF HEAT.  IT WAS POINTED OUT IN THE OPINION IN THE SNOW
CASE THAT A DEMONSTRATED ADVANTAGE OF THE SMITH METHOD OVER THAT OF THE
EARLIER TYPE OF INCUBATOR, IN WHICH THERE WAS NO PROPELLED CURRENT OF
AIR, IS THAT IT FACILITATES THE CONTINUOUS OPERATION OF THE INCUBATOR
THROUGH STAGED INCUBATION, AND MAKES IT POSSIBLE IN THE PROCESS OF
INCUBATION TO INCREASE THE NUMBER OF EGGS IN A SINGLE INCUBATOR FROM A
FEW HUNDRED TO MANY THOUSANDS. 

TO AVOID INFRINGEMENT, IT WAS INSISTED IN THE SNOW CASE THAT THE
CLAIM WAS RESTRICTED, BY THE SPECIFICATIONS AND DRAWINGS OF THE PATENT,
TO USE OF THE METHOD IN AN APPARATUS BY WHICH THE PROPELLED CURRENT OF
HEATED AIR WAS FIRST BROUGHT IN CONTACT WITH THE MORE ADVANCED EGGS. 
IN REJECTING THAT CONTENTION THE OPINION POINTED OUT THAT NEITHER THE
CLAIM ITSELF, CONSTRUED IN THE LIGHT OF THE SPECIFICATIONS, NOR THE
SUCCESSFUL OPERATION OF THE METHOD, REQUIRED THE ARRANGEMENT OF THE
EGGS IN ANY PARTICULAR ORDER; THAT THE CONTINUOUS CIRCULATION OF AIR OF
APPROPRIATE TEMPERATURE IN A CLOSED CHAMBER, CALLED FOR BY THE CLAIM,
SERVED TO EQUALIZE THE TEMPERATURE AT THE DESIRED DEGREE BY CARRYING
HEAT UNITS FROM THE MORE ADVANCED EGGS OF HIGH TEMPERATURE TO THE LESS
ADVANCED EGGS OF LOWER TEMPERATURE, REGARDLESS OF THE PARTICULAR ORDER
IN WHICH IT PASSED THE EGGS OF DIFFERENT STAGES.  WE SAID (P. 14): 

"THE CLAIM DOES NOT CALL FOR A PARTICULAR ORDER OR ARRANGEMENT OF THE
EGGS IN STAGED INCUBATION IN THE INCUBATOR, OR THAT THE PROPELLED
CURRENT SHOULD REACH THEM IN ANY PARTICULAR ORDER, OR THAT IT SHOULD BE
GUIDED, CONTROLLED OR DIRECTED BY ANY PARTICULAR MEANS, OR IN ANY
PARTICULAR MANNER OTHER THAN THAT IT SHOULD BE OF SUFFICIENT VELOCITY
TO PRODUCE THE RESULTS PRESCRIBED BY THE CLAIM." 

THUS CONSTRUED, INFRINGEMENT OF THE PATENTED METHOD COULD NOT BE
AVOIDED NOR ANTICIPATION OF IT DENIED BY SHOWING THAT THE CHALLENGED
USE WAS WITH DIFFERENT ARRANGEMENTS OF THE EGGS OR WITH A DIFFERENT
STRUCTURE, FOR GUIDING OR CONTROLLING THE PROPELLED CURRENT OF AIR
WITHIN THE CLOSED CHAMBER, FROM ANY EXHIBITED IN THE SPECIFICATIONS AND
DRAWINGS OF THE PATENT. 

TO ESTABLISH THE HASTINGS PRIOR USE RESPONDENTS RELY ON THE PROOF OF
HIS CONSTRUCTION OF AN INCUBATOR IN BROOKLYN, NEW YORK, EARLY IN 1911,
AND ITS USE IN THE HATCHING SEASON IN THE EARLY MONTHS OF THAT YEAR AND
OF 1912, AND ON PROOF OF HIS CONSTRUCTION OF ANOTHER IN MUSKOGEE,
OKLAHOMA, IN 1911, AND ITS USE IN 1912 AND 1913.  THEY OFFER
DOCUMENTARY CORROBORATION IN MORE OR LESS CONTEMPORARY ARTICLES IN
PUBLISHED JOURNALS AND IN A PATENT APPLICATION WITH ITS SUPPORTING
DOCUMENTS, FILED IN THE PATENT OFFICE IN 1911. 

WITHOUT STOPPING TO STATE THE EVIDENCE IN DETAIL, IT IS ESTABLISHED
BY THE TESTIMONY OF HASTINGS, ABUNDANTLY CORROBORATED, AND NOT
SERIOUSLY DENIED, THAT, APART FROM THE SETTING OF EGGS IN STAGED
INCUBATION, WHICH WILL BE PRESENTLY DISCUSSED, THESE INCUBATORS
EMPLOYED ALL THE ELEMENTS OF THE SMITH METHOD, AND THAT THEIR OPERATION
WAS SUCCESSFUL IN THE SENSE THAT THEY WERE EACH USED FOR HATCHING EGGS
FOR TWO SUCCESSIVE SEASONS AND THAT THE PERCENTAGE OF THE HATCHES WAS
COMPARABLE TO THAT OF THE SMALLER STILL AIR INCUBATORS THEN IN USE. 
HASTINGS' INCUBATORS WERE CLOSED CHAMBERS, WITH RESTRICTED OPENINGS.  A
CURRENT OF HEATED AIR WAS PROPELLED BY A MOTOR DRIVEN FAN IN SUCH
MANNER AS TO COME IN CONTACT WITH THE EGGS PLACED WITHIN THE CHAMBER IN
STACKS OF TRAYS, AND TO RETURN TO THE FAN BY MEANS OF WHICH IT WAS
CONTINUOUSLY RECIRCULATED.  SEE SMITH V. SNOW, SUPRA, 19, 20; WAXHAM V.
SMITH, 294 U.S. 20, 22.  BOTH INCUBATORS WERE OF LARGE CAPACITY.  THAT
IN BROOKLYN WAS BUILT FOR 6,000 EGGS, ALTHOUGH IT DOES NOT APPEAR THAT
IT EVER CONTAINED MORE THAN 2,000 EGGS AT ANY ONE TIME, AND THAT IN
MUSKOGEE WAS FOR 30,000 EGGS.  IT IS PLAIN THAT HASTINGS BUILT AND
OPERATED INCUBATORS SUITABLE FOR THE USE OF THE SMITH METHOD, BUT
PETITIONER SHARPLY CHALLENGES THE CONTENTION THAT HE DID USE THAT
METHOD IN EITHER OF THEM.  IT IS SAID THAT THERE IS NO CONVINCING PROOF
THAT EGGS WERE EVER PLACED IN THE BROOKLYN INCUBATOR IN STAGED
INCUBATION, AND THAT THE STRUCTURE OF THE OTHER AND THE MANNER OF ITS
USE WERE SUCH AS TO SHOW THAT THE SMITH METHOD AS WE HAVE DESCRIBED IT
WAS NOT EMPLOYED.  THESE ARE THE CRUCIAL ISSUES. 

HASTINGS BUILT AND OPERATED THE BROOKLYN INCUBATOR FOR DAVIS, WHO
CONDUCTED A POULTRY FARM AS THE MEANS OF SUPPLYING CHICKENS FOR A
RESTAURANT WHICH HE ALSO OPERATED.  AFTER HASTINGS LEFT DAVIS' EMPLOY
IN MAY, 1911, THE LATTER OPERATED THE INCUBATOR DURING THE SEASON OF
1912.  SUBSEQUENTLY HE WENT OUT OF THE POULTRY BUSINESS AND DISMANTLED
THE INCUBATOR.  HASTINGS TESTIFIED, SPECIFICALLY AND IN DETAIL, THAT
THE EGGS WERE PLACED IN THE BROOKLYN INCUBATOR IN STAGED INCUBATION. 
DAVIS, CORROBORATED TO SOME EXTENT BY HIS WIFE, TESTIFIED THAT THE EGGS
WERE PLACED IN THE INCUBATOR AT TWICE A WEEK INTERVALS, WHEN THEY WERE
DELIVERED, AT THE RATE OF ONE OR TWO CRATES A WEEK, BY THE POULTRYMAN
FROM WHOM THEY WERE PURCHASED.  THE EGGS WERE PLACED IN TRAYS IN THE
INCUBATOR CHAMBER WHERE THEY WERE EXPOSED TO A CURRENT OF HEATED AIR
UNDER THERMOSTATIC CONTROL.  THE AIR, MAINTAINED AT A PRACTICALLY
UNIFORM TEMPERATURE, WAS CONTINUOUSLY CIRCULATED THROUGHOUT THE CHAMBER
BY MEANS OF AN ELECTRIC FAN.  THIS ORAL TESTIMONY, IF TAKEN AT ITS FACE
VALUE, WOULD SHOW THAT THE SMITH METHOD WAS USED IN THE BROOKLYN
INCUBATOR WITH EGGS IN STAGED INCUBATION.  BUT WITHOUT CORROBORATION,
IT IS INSUFFICIENT TO ESTABLISH PRIOR USE, BARBED WIRE PATENT, 143 U.S.
275, 284; DEERING V. WINONA HARVESTER WORKS, 155 U.S. 286, 300; EIBEL
PROCESS CO. V. MINNESOTA & ONTARIO PAPER CO., 261 U.S. 45, 60, AND WE
TURN TO THE DOCUMENTARY EVIDENCE THAT HASTINGS KNEW THE METHOD OF THE
PATENT AND USED IT IN HIS BROOKLYN STRUCTURE. 

BEFORE 1908 HASTINGS HAD HAD AN EXTENSIVE EXPERIENCE IN POULTRY
CULTURE.  IN 1908 AND 1909 HE WAS IN THE SERVICE OF THE DEPARTMENT OF
AGRICULTURE, AND IN THE COURSE OF HIS DUTIES HE INSPECTED MANY POULTRY
PLANTS AND EXPERIMENTAL STATIONS OPERATING INCUBATORS.  HE WAS THE
AUTHOR OF A BOOK, "THE DOLLAR HEN," PUBLISHED IN 1909, IN WHICH HE
DESCRIBED A PROCEDURE FOR THE INCUBATION OF EGGS.  IT SPOKE OF AN
INCUBATOR IN WHICH "AT HATCHING TIME THE EGGS ARE SPREAD OUT IN TRAYS
IN A SPECIAL HATCHING ROOM, WHICH IS ONLY LARGE ENOUGH TO ACCOMMODATE
CHICKS TO THE AMOUNT OF ONE-SIXTH OF THE INCUBATOR CAPACITY, FOR TWICE
A WEEK DELIVERINGS OR ONE-THIRD IF WEEKLY DELIVERIES ARE DESIRED."  IT
ALSO DESCRIBED AN INCUBATOR IN WHICH "ALL TEMPERATURE REGULATION IS BY
MEANS OF AIR HEATED (OR COOLED AS THE CASE MAY BE) OUTSIDE OF THE EGG
ROOMS AND FORCED INTO THE EGG ROOMS BY A MOTOR DRIVEN CONE FAN,
MAINTAINING A STEADY CURRENT OF AIR, THE RATE OF MOVEMENT OF WHICH MAY
BE VARIED AT WILL.  THE AIR MOVEMENT MAINTAINED WILL ALWAYS BE
SUFFICIENTLY BRISK, HOWEVER, TO PREVENT AN UNEVENNESS OF TEMPERATURE IN
DIFFERENT PARTS OF THE ROOM."  THE REFERENCE TO AN INCUBATOR IN
CONTINUOUS OPERATION, FOR DELIVERIES ONCE OR TWICE A WEEK, AND TO
TEMPERATURE REGULATION OF THE EGG CHAMBER BY A PROPELLED CURRENT OF
HEATED AIR, MOVING AT A VELOCITY SUFFICIENT TO MAINTAIN AN EVEN
TEMPERATURE, SHOWS THAT HASTINGS HAD THE CONCEPTION OF STAGED
INCUBATION LONG BEFORE HE BUILT THE BROOKLYN INCUBATOR. 

ON MAY 3, 1911, WHILE HE WAS IN DAVIS' EMPLOY, AND WHEN THE BROOKLYN
INCUBATOR WAS IN OPERATION, HASTINGS FILED AN APPLICATION FOR A PATENT,
SERIAL NO. 624,885.  DOCUMENTS IN SUPPORT OF THE APPLICATION FILED AS
LATE AS JULY 1911, GIVE HASTINGS' ADDRESS AS THAT OF DAVIS IN
BROOKLYN.  THE APPLICATION DISCLOSES A CHAMBER WITH RESTRICTED OPENINGS
IN WHICH THE EGGS ARE PLACED AND THROUGH WHICH A STEADY CURRENT OF AIR,
HEATED TO A UNIFORM TEMPERATURE, IS PROPELLED BY A CONSTANTLY MOVING
ELECTRIC FAN, SO AS TO CIRCULATE THROUGHOUT THE CHAMBER.  ALTHOUGH THE
APPLICATION TAUGHT THE USE OF FABRIC OR PERFORATED PARTITIONS FOR THE
PURPOSE OF CAUSING AN EVEN DISTRIBUTION OF THE CURRENT OF AIR, IT
SPECIFIED THAT THE INVENTION WAS "NOT LIMITED TO ANY PARTICULAR
CIRCULATION OR MOVEMENT OF THE AIR AND BY THE USE OF THE FAN THE
GRAVITY DRAFTS MAY BE OVERCOME AND THE AIR CAUSED TO MOVE IN ANY
DESIRED DIRECTION."  THE APPLICATION WAS PREPARED BY HASTINGS, BUT UPON
ITS REJECTION BY THE EXAMINER, HE SOUGHT THE AID OF COUNSEL WHO, ON MAY
24, 1912, AMENDED THE CLAIM AND FILED A STATEMENT IN EXPLANATION OF IT,
STATING THAT THEY HAD DERIVED DATA AND INFORMATION FROM A PRACTICAL
HATCHERY OF LARGE CAPACITY THEN BEING OPERATED BY THE APPLICANT. 

IN THIS STATEMENT IT WAS POINTED OUT THAT "THE TEMPERATURE OF THE
EGGS THEMSELVES VARIES IN ACCORDANCE WITH THE STAGE OF THEIR
DEVELOPMENT AND THE GASEOUS EMANATIONS TEND TO PRODUCE VITIATED
CONDITIONS WHICH EXERT A MARKED INFLUENCE UPON THE EGGS THEMSELVES AND
ESPECIALLY UPON ADJACENT EGGS, IF THE EGGS ARE AT DIFFERENT STAGES OF
THEIR DEVELOPMENT"; THAT "IN A LARGE HATCHERY WHERE MANY HUNDREDS AND
EVEN THOUSANDS OF EGGS ARE BEING CONTINUALLY ADVANCED IN THE PROCESS OF
INCUBATION THE ORDINARY MEANS FOR CAUSING THE CIRCULATION OF AIR BY
CONVEXION CURRENTS THROUGH AND IN THE INCUBATING CHAMBER HAS BEEN
DEMONSTRATED AS BEING TOTALLY INADEQUATE, AND THIS IS BELIEVED TO BE
ONE OF THE PRINCIPAL REASONS WHY, UP TO THE PRESENT TIME, HATCHERIES OF
LARGE CAPACITY HAVE PROVEN TO BE PRACTICAL FAILURES."  AND FINALLY IT
WAS STATED THAT HASTINGS HAD "DISCOVERED THAT THE TEMPERATURE AND
GASEOUS STRATIFICATION IN THE INCUBATING CHAMBER MUST BE OVERCOME BY A
MECHANICALLY FORCED CIRCULATION OF THE AIR WHICH WILL INSURE A CORRECT
AND UNIFORM INFLUENCE OF THE AIR UPON ALL OF THE EGGS IN THE INCUBATING
CHAMBER, AND THIS FORCED CIRCULATION MUST BE SUCH AS TO OVERCOME THE
COUNTERACTING INFLUENCE OF THE EGGS UPON THE AIR WHEN SAID EGGS ARE IN
THE DIFFERENT STAGES OF INCUBATION." 

IN THE BRIEF OF COUNSEL ON APPEAL TO THE BOARD OF EXAMINERS-IN-CHIEF,
DATED DECEMBER 30, 1912, THESE POINTS WERE ELABORATED AND EXPLAINED. 
IT WAS STATED:  "THE PROBLEM HAS BEEN TO ENABLE THE INCUBATING
OPERATIONS TO BE CARRIED ON CONTINUOUSLY, IF SO DESIRED, WITH EGGS AT
ALL STAGES OF DEVELOPMENT, AND WITH ALL OF A VAST NUMBER OF EGGS
SUBJECTED TO THE SAME TEMPERATURE AND ATMOSPHERIC CONDITIONS BEST
ADAPTED FOR THE DEVELOPMENT OF THE EMBRYO."  IT WAS POINTED OUT THAT
"DURING THE INITIAL STAGE OF INCUBATION THE EGGS ABSORB HEAT WHEREBY
THEIR TEMPERATURE IS RAISED, BUT DURING THE FINAL STAGES THE VITAL
PROCESSES GENERATE HEAT, AND IN PRACTICE IT IS FOUND THAT WITH VAST
NUMBERS OF EGGS ASSEMBLED IN A SINGLE COMPARTMENT AND WITH EGGS AT ALL
STAGES OF INCUBATION BUT VERY LITTLE EXTRANEOUS HEAT NEED BE SUPPLIED,
BECAUSE THE EGGS IN THE LATER STAGES OF DEVELOPMENT SUPPLY THE
NECESSARY HEAT FOR THE EGGS IN THE EARLIER STAGES OF DEVELOPMENT.  IN
PRACTICE, HOWEVER, A SOURCE OF HEAT IS ALWAYS MAINTAINED IN ORDER TO
PERMIT OF PROPER REGULATION." 

IT WAS THEN EXPLAINED THAT THE "TEMPERATURE STRATIFICATION IN THE EGG
CHAMBER" IS OVERCOME "THROUGH THE PROVISION OF A MECHANICALLY OPERATED
AIR FORCING MEANS WHICH WOULD FORCE A RAPID CIRCULATION OF AIR THROUGH
THE WHOLE COLLECTION OF EGGS IN THE CHAMBER AND PAST THE HEATER.  THE
MECHANICAL AIR FORCING MEANS IS AN ESSENTIAL FACTOR, IF HEAT IS TO BE
CONSERVED AND THE CONDITIONS MAINTAINED UNIFORM."  AND LATER IT WAS
SAID:  "IT IS THROUGH THE INSTRUMENTALITY OF THESE ELEMENTS THAT THE
TEMPERATURE AND GASEOUS STRATIFICATION OF THE AIR IN THE CHAMBER IS
OVERCOME AND THE EGGS ARE UNIFORMLY SUBJECTED TO THE INFLUENCE OF AIR
OF THE SAME TEMPERATURE AND COMPOSITION." 

THE BRIEF ALSO QUOTED FROM A STATEMENT OF HASTINGS, WHICH, AFTER
OBSERVING THAT TEMPERATURE STRATIFICATION MAY BE OVERCOME IN A HATCHING
CHAMBER HOLDING MANY THOUSANDS OF EGGS BY APPLYING TO THEM A
MECHANICALLY IMPELLED BLAST OF AIR, SAYS: 

"IN THE HASTINGS HATCHERY, A CURRENT OF AIR IS BLOWN PAST EACH AND
EVERY EGG AT THE RATE OF THIRTY FEET PER MINUTE AND THIS RAPIDLY MOVING
AIR QUICKLY BRINGING THE TEMPERATURE OF THE EGG TO APPROXIMATELY THAT
OF THE AIR.  THIS METHOD OF HEATING KEEPS THE TEMPERATURE OF THE EGGS
IN THE ADVANCED STATE OF INCUBATION DOWN WITHIN A FEW DEGREES OF THAT
OF THE AIR, THE EXACT DIFFERENCE BEING REGULATED AT WILL BY ADJUSTING
THE SPEED OF THE FAN.  WHEN PROPERLY ADJUSTED THE SAME BLAST OF AIR
USED TO HEAT FRESH EGGS DOES EQUALLY WELL FOR EGGS IN THE ADVANCED
STAGES JUST AS THE SAME TEMPERATURE OF THE BODY OF THE HEN INCUBATES
THE EGGS AT ALL STAGES OF DEVELOPMENT, WITHOUT RECOURSE ON THE HEN'S
PART TO THE 'HATCHING FEVER,' ERRONEOUSLY SUPPOSED TO EXPLAIN THE HIGH
TEMPERATURE OF EGGS AT A MORE ADVANCED STAGE OF DEVELOPMENT.  OWING TO
THIS FACT EGGS AT ALL STAGES MAY BE HANDLED SIMULTANEOUSLY WITH
UNIFORMLY GOOD RESULTS." 

HE ALSO MENTIONED THE INTRODUCTION OF MOISTURE INTO THE CURRENT OF
AIR BY THE USE OF A SPRAY OR THE INTRODUCTION OF OUTSIDE AIR AT THE
FAN. 

WE THINK IT PLAIN THAT AT THE TIME THESE DOCUMENTS WERE FILED THE
ESSENTIAL ELEMENTS FOR HATCHING EGGS IN STAGED INCUBATION, AS THEY WERE
LATER CLAIMED IN THE SMITH PATENT, WERE KNOWN TO HASTINGS, AND THAT HE
WAS FAMILIAR WITH A STRUCTURE CAPABLE OF EMPLOYING THAT METHOD.  THEY
AFFORD CONVINCING CORROBORATION OF THE ORAL TESTIMONY THAT THE
INCUBATOR IN USE IN BROOKLYN IMMEDIATELY PRECEDING THE FILING OF THE
APPLICATION, AND BOTH INCUBATORS IN USE DURING ITS PENDENCY, EMPLOYED
THE METHOD OF THE SMITH CLAIM.  WHETHER HASTINGS KNEW FULLY AND
PRECISELY THE SCIENTIFIC PRINCIPLES INVOLVED IN THE PROCEDURE THUS
OUTLINED IS IMMATERIAL.  IT IS ENOUGH IF HE KNEW AND USED THE METHOD
WITH OPERATIVE SUCCESS.  DEFOREST RADIO CO. V. GENERAL ELECTRIC CO.,
283 U.S. 664, 686.  HE DID KNOW THE METHOD OF SETTING EGGS IN STAGED
INCUBATION IN A CLOSED CHAMBER AND CONTINUOUSLY CIRCULATING THROUGH
THEM A CURRENT OF MOISTENED AIR AT AN APPROPRIATE TEMPERATURE, AND HE
KNEW THAT THE ADVANTAGES OF THE USE OF THIS METHOD OVER THE TYPE OF
INCUBATOR IN WHICH THERE WERE NO MECHANICALLY PROPELLED CURRENTS OF
AIR, WERE THAT IT FACILITATED THE CONTINUOUS OPERATION OF THE INCUBATOR
AND THE SIMULTANEOUS INCUBATION IN A SINGLE CHAMBER OF A GREATLY
INCREASED NUMBER OF EGGS. 

THE DISCLOSURES MADE IN THE HASTINGS BRIEF WERE SO COMPLETE THAT THEY
MIGHT WELL HAVE BEEN USED IN SUPPORT OF THE SMITH CLAIM.  PRESSED TO
THEIR CONCLUSION, THEY WOULD HAVE WARRANTED AWARD OF THE PATENT LATER
GRANTED TO SMITH.  SEE SMITH V. SNOW, SUPRA, 14-16.  WHILE THE PATENT
OFFICE FILE ON THE ABANDONED CLAIM IS NOT RELIED ON AS A PRIOR
PUBLICATION, SEE THE CORN-PLANTER PATENT, 23 WALL.  181, 210-211; CF.
ALEXANDER MILBURN CO. V. DAVIS CO., 270 U.S. 390, 400, 402, IT IS
COMPETENT AND COGENT EVIDENCE TO DETERMINE THE NATURE AND DATE OF THE
INVENTION WHICH THE INVENTOR CLAIMS TO HAVE EMBODIED IN WORKING FORM,
SEE CORN-PLANTER PATENT, SUPRA, 211; UNITED STATES BLIND STITCH MACHINE
CORP. V. RELIABLE MACHINE WORKS, 67 F.(2D) 327, 328(C.C.A.2D); WALKER,
PATENTS (6TH ED., 1929), SECS. 97, 98. 

IN 1911, HASTINGS INDUCED LIEBER, A LOCAL LAWYER AND BUSINESS MAN OF
MUSKOGEE, OKLAHOMA, AND ANOTHER, TO ORGANIZE A CORPORATION FOR THE
PROMOTION OF THE HASTINGS METHOD OF INCUBATION.  UNDER ITS AUSPICES
HASTINGS CONSTRUCTED THERE AN INCUBATOR OF 30,000 EGG CAPACITY IN THE
LATTER PART OF 1911 AND DIRECTED ITS OPERATION DURING THE 1912 HATCHING
SEASON.  ITS OPERATION WAS CONTINUED BY AN ASSOCIATE IN THE SEASON OF
1913.  THE GENERAL PLAN OF ITS CONSTRUCTION AND MECHANICAL OPERATION AS
TESTIFIED TO BY HASTINGS IS ABUNDANTLY CORROBORATED BY DISINTERESTED
WITNESSES AND CONTEMPORARY PHOTOGRAPHS AND PUBLICATIONS DESCRIBING IT.
THE PRINCIPAL WITNESSES ARE LIEBER, WHO FURNISHED THE MONEY FOR THE
ENTERPRISE, PEABODY, THE ELECTRICAL CONTRACTOR WHO INSTALLED THE FAN
AND OTHER ELECTRICAL EQUIPMENT OF THE INCUBATOR, AND HICKOX, MANAGER OF
THE LOCAL ELECTRIC LIGHT COMPANY WHICH SUPPLIED THE CURRENT FOR THE
INCUBATOR.  IN 1912, HICKOX TOOK PHOTOGRAPHS OF THE INCUBATOR IN
OPERATION, AND PREPARED A WRITTEN DESCRIPTION OF IT.  THESE WERE
PRODUCED AT THE TRIAL. 

THE UNCONTRADICTED EVIDENCE IS THAT THE INCUBATOR CONSISTED OF A
LARGE ROOM IN WHICH THERE WERE A SERIES OF STACKS OF EGG TRAYS WITH
WIRE MESH BOTTOMS.  EACH STACK, HAVING A CAPACITY OF 5,000 EGGS, WAS
PLACED IN A SEPARATE COMPARTMENT.  THERE WAS A CORRIDOR IN FRONT OF THE
TRAYS GIVING ACCESS TO THE STACKS, WHICH, IN OPERATION, WERE CLOSED ON
THE CORRIDOR SIDE BY REMOVABLE SHUTTERS.  A MOTOR-DRIVEN FAN, PLACED AT
ONE END OF THE INCUBATOR, PROPELLED A CURRENT OF AIR OVER A MOISTURE
PAN, THENCE THROUGH A PASSAGE AT THE BACK OF THE EGG TRAYS INTO CONTACT
WITH A HEATING PIPE UNDER THERMOSTATIC CONTROL.  FROM THAT POINT IT
PASSED INTO A PASSAGEWAY DIRECTLY ABOVE THE STACKS OF EGG TRAYS, THENCE
DOWNWARD THROUGH THE TRAYS TO A PASSAGE BENEATH THEM, THROUGH WHICH THE
CURRENT WAS RETURNED TO THE FAN IN CONTINUOUS CIRCULATION.  A NUMBER OF
OTHER WITNESSES, HAVING NO CONNECTION WITH THE HASTINGS ENTERPRISE,
INCLUDING THREE CALLED BY PETITIONER, SAW THE INCUBATOR IN OPERATION
AND CORROBORATE THE TESTIMONY AS TO ITS MAIN FEATURES; THE PRESENCE
WITHIN THE INCUBATOR OF THOUSANDS OF EGGS, PLACED IN STACKS OR TRAYS,
HATCHED BY THE CIRCULATION THROUGH THEM OF A FANPROPELLED HEATED
CURRENT OF AIR. 

AN ARTICLE GIVING SOME ACCOUNT OF THE HASTINGS INCUBATOR, PREPARED BY
AN EDITOR OF POULTRY CULTURE AND PUBLISHED IN THAT JOURNAL FOR
FEBRUARY, 1912, MENTIONS THE USE OF TWO FLUMES CARRYING THE CURRENT OF
AIR FROM THE FAN, ONLY ONE OF WHICH BROUGHT THE AIR INTO CONTACT WITH
THE HEATER.  IT SPEAKS OF A USE OF A MEANS FOR CONTROLLING TEMPERATURE
OF THE AIR PASSING TO EACH EGG COMPARTMENT, BY MIXING IN PROPER
PROPORTIONS THE FLOW OF AIR FROM THE TWO FLUMES.  THE EXISTENCE OF SUCH
A DOUBLE CONDUIT IS NOT CORROBORATED BY ANY WITNESS OR ANY DOCUMENT,
AND IS EXPLICITLY DENIED BY LIEBER, TESTIFYING IN BEHALF OF PETITIONER
IN THE STONE CASE, MADE A PART OF THE PRESENT RECORD, AND BY HASTINGS. 
PEABODY, WHO INSTALLED THE ELECTRICAL EQUIPMENT, AND HICKOX, WHO
PREPARED A CONTEMPORARY WRITTEN DESCRIPTION OF THE INCUBATOR, MAKE NO
MENTION OF IT.  DRAWINGS SHOWING A SINGLE PASSAGEWAY CARRYING THE
CURRENT OF AIR TO THE EGG STACKS WERE IDENTIFIED AS ACCURATE BY
HASTINGS, LIEBER AND PEABODY.  WE CONCLUDE THAT, WHATEVER EXPERIMENTAL
PROPOSALS OR INSTALLATIONS MAY HAVE BEEN MADE, THE INCUBATOR WAS USED
WITH A SINGLE AIR PASSAGE ABOVE THE EGG COMPARTMENTS. 

ALL THE WITNESSES AGREE THAT THE INCUBATOR WAS COMMERCIALLY OPERATED
DURING THE HATCHING SEASONS OF 1912 AND 1913, AND THAT IT HATCHED
DIFFERENT BATCHES OF EGGS PLACED IN IT, WITH VARYING SUCCESS.  THE
HATCHES OF THE EGGS FURNISHED BY SOME CUSTOMERS WERE FAILURES.  OTHERS
WERE SUCCESSFUL.  ONE OF PETITIONER'S WITNESSES TESTIFIED THAT THE
HATCHES NEVER EXCEEDED 50%.  LIEBER ESTIMATED THAT 50% WAS THE AVERAGE,
WITH SOME PEOPLE GETTING NONE AND OTHERS GETTING 80%. HASTINGS, WHO IN
THE CANADIAN SUIT TESTIFIED THAT THE AVERAGE WAS 40%, STATED THAT SOME
SETTINGS RAN UP TO 70%.  THERE IS NO TESTIMONY OF ANY MECHANICAL
FAILURE OF THE INCUBATOR AFTER THE INITIAL TRIALS OF IT, AS A RESULT OF
WHICH AN ELECTRIC BLOWER WAS SUBSTITUTED FOR THE FAN OF LESSER POWER. 
IN 1912, HASTINGS DEPARTED FOR TEXAS, WHERE HE STARTED ANOTHER
INCUBATOR.  AFTER OPERATING THE INCUBATOR THROUGH ANOTHER HATCHING
SEASON, LIEBER, HIS FINANCIAL BACKER, ABANDONED THE ENTERPRISE. 

AS WITH THE BROOKLYN INCUBATOR, THE CRITICAL ISSUE IS WHETHER THAT IN
MUSKOGEE WAS USED WITH EGGS IN STAGED INCUBATION IN THE MANNER OF THE
SMITH CLAIM.  IT IS ESTABLISHED BEYOND DOUBT THAT EGGS IN DIFFERENT
STAGES WERE IN PROCESS OF INCUBATION THERE AT THE SAME TIME.  THE
INCUBATOR WAS USED IN LARGE MEASURE FOR "CUSTOM HATCHING."  AT FREQUENT
INTERVALS, PATRONS BROUGHT THEIR EGGS IN RELATIVELY SMALL QUANTITIES TO
BE PLACED IN THE INCUBATOR FOR HATCHING, AND RECEIVED AT THE END OF THE
HATCHING PERIOD THEIR SHARE OF THE NEWLY HATCHED CHICKS. 

THE TESTIMONY OF HASTINGS THAT STAGED INCUBATION WAS EMPLOYED IN THE
MUSKOGEE STRUCTURE IS CORROBORATED BY THIS COURSE OF BUSINESS AND BY
THE CONTEMPORANEOUS STATEMENTS AND BRIEF FILED WITH HIS PATENT
APPLICATION.  HE TESTIFIED THAT EGGS OF DIFFERENT STAGES WERE
SOMETIMES, THOUGH NOT ALWAYS, PLACED IN THE SAME COMPARTMENT OF THE
INCUBATOR.  THE POULTRY CULTURE ARTICLE OF FEBRUARY, 1912, STATES,
AFTER DESCRIBING THE USE OF THE FAN-PROPELLED CURRENT OF HEATED AIR IN
THE INCUBATOR:  "EGGS AT ALL STAGES CAN BE PLACED IN THE SAME TRAYS OF
THE HASTINGS HATCHERY, WITH LITTLE OR NO INJURY.  MR. HASTINGS HATCHED
SEVERAL THOUSAND EGGS UNDER SUCH CONDITIONS IN HIS BROOKLYN PLANT LAST
YEAR." 

PETITIONER STRESSES THE POINT THAT IN THE MUSKOGEE INCUBATOR, THE
STACKS OF EGG TRAYS WERE CONCEDEDLY PLACED IN SEPARATE COMPARTMENTS,
WITH OPENINGS AT THE TOP HAVING SLIDE DOORS WHICH COULD BE USED LIKE A
VALVE FOR REGULATING THE VOLUME OF AIR FLOWING INTO EACH COMPARTMENT. 
HASTINGS TESTIFIED THAT THE SLIDE DOORS WERE USED TO CUT DOWN THE
SUPPLY OF AIR WHEN THERE WERE FEW OR NO EGGS IN A COMPARTMENT AND THAT
THEY WERE LEFT OPEN WHEN THE COMPARTMENT WAS SUBSTANTIALLY FULL OF
EGGS.  PETITIONER POINTS TO THIS AND TO SOME TESTIMONY BY HASTINGS AND
LIEBER THAT THE SLIDE DOORS COULD BE USED TO REGULATE THE TEMPERATURE
IN EACH COMPARTMENT THROUGH CONTROL OF THE VOLUME OF AIR PASSING
THROUGH THEM, AND TO TESTIMONY BY LIEBER THAT THE EGGS, AS RECEIVED,
WERE FIRST PLACED IN ONE COMPARTMENT AND THEN AT INTERVALS, AS OTHER
EGGS CAME IN, WERE MOVED FROM ONE COMPARTMENT TO ANOTHER, AND THAT THE
DOORS WERE USED TO CONTROL VARIATIONS OF TEMPERATURE IN THE DIFFERENT
COMPARTMENTS. 

FROM THIS THE INFERENCE IS DRAWN THAT ONLY EGGS OF THE SAME STAGE
WERE PLACED IN ANY ONE COMPARTMENT, AND FROM THE INFERENCE IT IS ARGUED
THAT THEY WERE NOT SET IN STAGED INCUBATION.  BUT EVEN IF THE INFERENCE
IS CORRECT, IT ESTABLISHES ONLY THAT A SPECIAL METHOD OR DEVICE TO
GUIDE AND CONTROL THE AIR CURRENT WAS USED, NOT THAT STAGED INCUBATION
WAS WANTING.  THE PRESENCE OR ABSENCE OF A DEVICE FOR CONTROLLING THE
CURRENT OF AIR WITHIN THE INCUBATOR IS NO PART OF THE SMITH CLAIM.  OUR
OPINIONS IN SMITH V. SNOW, SUPRA, AND WAXHAM V. SMITH, SUPRA, WERE
CAREFUL TO POINT OUT THAT INFRINGEMENT OF THE METHOD COULD NOT BE
AVOIDED BY USING IT IN CONJUNCTION WITH SUCH A DEVICE.  THE PRESENCE OF
THE DEVICE IN THE MUSKOGEE INCUBATOR DID NOT FORECLOSE ANTICIPATION IF
THE METHOD WAS USED.  SINCE THE CIRCULATING CURRENT OF AIR PASSED
REPEATEDLY INTO THE COMPARTMENTS IN THE MUSKOGEE STRUCTURE AND CAME IN
CONTACT WITH THE HEATING PIPE AND WITH THE EGGS IN THE SEVERAL STACKS
OF TRAYS, THE TENDENCY OF THE OPERATION WAS TO EQUALIZE THE TEMPERATURE
AND TO CARRY HEAT UNITS FROM THE MORE ADVANCED TO THE LESS ADVANCED
EGGS.  THIS IS THE METHOD OF THE PATENT AND IT WAS EMPLOYED IN THE
MUSKOGEE STRUCTURE WHETHER THE TRAYS OF EGGS OF DIFFERENT STAGES WERE
PLACED IN THE SAME OR DIFFERENT COMPARTMENTS.    THE PATENT WAS
SUSTAINED IN THE SNOW AND WAXHAM CASES, SUPRA, ONLY BY ESTABLISHING
THAT NEITHER THE ARRANGEMENT OF THE EGGS, NOR THE PARTICULAR ORDER IN
WHICH THE PROPELLED CURRENT SHOULD REACH THE EGGS, NOR THE MANNER IN
WHICH IT WAS GUIDED OR CONTROLLED, IS PART OF THE PATENT CLAIMED.  IT
WAS THIS CONSTRUCTION OF THE CLAIM WHICH GAVE A NEW SIGNIFICANCE TO THE
HASTINGS INCUBATORS, DIFFERENT FROM ANY RECOGNIZED BY PREVIOUS
DECISIONS.  THE PETITIONER, HAVING SOUGHT AND OBTAINED A BROAD
CONSTRUCTION OF HIS CLAIM, CANNOT NOW NARROW IT SO AS TO AVOID
ANTICIPATION BY SHOWING THAT THE CLAIMED METHOD WAS USED IN A
PARTICULAR FORM OF STRUCTURE NOT CLAIMED.  IT WAS THE METHOD THUS
DEFINED WHICH HASTINGS USED, REGARDLESS OF THE PARTICULAR STRUCTURE
WHICH HE DEVISED TO GUIDE AND CONTROL THE CURRENT OF AIR IN HIS
INCUBATOR, OR THE ORDER IN WHICH IT CAME INTO CONTACT WITH THE HEATER
AND EGGS OF DIFFERENT STAGES.  IT IS IMMATERIAL THAT HIS STRUCTURE FOR
USING THE METHOD WAS NEITHER THE BEST POSSIBLE NOR AS SKILFULLY
DESIGNED OR USED AS THAT LATER EMPLOYED BY SMITH.  PICKERING V.
MCCULLOUGH, 104 U.S. 310, 319; CF. TELEPHONE CASES, 126 U.S. 1, 531,
536. 

IN VIEW OF THIS CONCLUSION IT IS UNIMPORTANT WHETHER HASTINGS USED
THE METHOD IN HIS BROOKLYN INCUBATOR.  BUT WE THINK THE TESTIMONY OF
ITS USE THERE IS SUFFICIENTLY CORROBORATED.  HIS STATEMENT IN "THE
DOLLAR HEN," ALREADY QUOTED, PUBLISHED BEFORE THE BROOKLYN STRUCTURE
WAS ERECTED, SHOWS CLEARLY THAT HE CONTEMPLATED THE CONTINUOUS
OPERATION OF AN INCUBATOR WITH THE EGGS SET IN STAGED INCUBATION SO
THAT THEY WOULD BE HATCHED FOR DELIVERIES ONCE OR TWICE A WEEK, BY A
PROCEDURE SUBSTANTIALLY THAT OF THE SMITH CLAIM.  THE CIRCUMSTANCES
ATTENDING THE BROOKLYN USE, WHICH CALLED FOR THE SETTING OF EGGS AT
FREQUENT INTERVALS IN AN INCUBATOR OF LARGE CAPACITY, THE STRUCTURE
EXHIBITED IN HASTINGS' PATENT APPLICATION, THE SUBSEQUENT COURSE OF THE
APPLICATION IN THE PATENT OFFICE, AND FINALLY THE RENEWED EFFORT AT
MUSKOGEE EMBODYING THE SAME PRINCIPLES, ALTHOUGH WITH AN IMMATERIAL
VARIATION IN STRUCTURE, AND THE FACT THAT BOTH INCUBATORS FUNCTIONED,
ARE CONVINCING EVIDENCE THAT HASTINGS KNEW AND USED IN APPROPRIATE
COMBINATION, BOTH IN BROOKLYN AND IN MUSKOGEE, THE ESSENTIAL ELEMENTS
OF THE SMITH CLAIM.  THEY SUPPORT THE HEAVY BURDEN OF PERSUASION WHICH
RESTS UPON ONE WHO SEEKS TO NEGATIVE NOVELTY IN A PATENT BY SHOWING
PRIOR USE.  SEE RADIO CORPORATION V. RADIO ENGINEERING LABORATORIES,
293 U.S. 1, 7, AND CASES CITED. 

PETITIONER URGES, AND WE HAVE CONSIDERED, NUMEROUS OTHER OBJECTIONS
TO THE SUFFICIENCY OF PROOF OF THE HASTINGS PRIOR USE.  THE ONLY ONE
CALLING FOR ANY COMMENT IS THE SUGGESTION THAT THE BROOKLYN AND
MUSKOGEE ENTERPRISES WERE NOT COMMERCIALLY SUCCESSFUL.  COMMERCIAL
SUCCESS MAY TURN THE SCALE WHEN INVENTION IS IN DOUBT, PARAMOUNT PUBLIX
CORP. V. AMERICAN TRI-ERGON CORP., 294 U.S. 464, 474; DEFOREST RADIO
CO. V. GENERAL ELECTRIC CO., SUPRA, 685, AND THE WANT OF IT MAY, IN
SOME CIRCUMSTANCES, BE EVIDENCE OF WANT OF OPERATIVE SUCCESS.  BUT HERE
HASTINGS BY THE USE OF A METHOD WHICH WE HAVE SUSTAINED AS AN
INVENTION, SMITH V. SNOW, SUPRA, HAS ATTAINED THE PARTICULAR RESULTS
DESCRIBED BY THE PATENT.  HE KNEW THE METHOD AND USED IT IN A DEVICE
CAPABLE OF EMPLOYING IT.  IN SUCH CIRCUMSTANCES WANT OF COMMERCIAL
SUCCESS, WHICH THE RECORD SUGGESTS MAY HAVE BEEN DUE TO LACK OF
TECHNICAL AND BUSINESS SKILL, IS NOT AN INDICATION THAT THERE WAS NO
PRIOR USE. 

UPON THE RECORDS NOW BEFORE US WE MUST CONCLUDE, AS DID THE SUPREME
COURT OF CANADA UPON A SIMILAR RECORD (FOOTNOTE 1, SUPRA), THAT
HASTINGS ANTEDATED SMITH.  THE SMITH METHOD WAS "KNOWN OR USED BY
OTHERS IN THIS COUNTRY BEFORE HIS INVENTION OR DISCOVERY THEREOF."  35
U.S.C., SEC. 31.  AFFIRMED. 

FN1  BEFORE THE DECISION IN SMITH V. SNOW, 294 U.S. 1, THE HASTINGS
DEFENSE HAD BEEN CONSIDERED AND REJECTED IN BUCKEYE INCUBATOR CO. V.
WOLF, 291 FED. 253, AFF'D, 296 FED. 680(C.C.A.6TH), IN BUCKEYE
INCUBATOR CO. V. COOLEY, 17 F.(2D) 453(C.C.A. 3RD), AND IN BUCKEYE
INCUBATOR CO. V. STONE, A SUIT IN THE DISTRICT COURT FOR OREGON, BY A
SPECIAL MASTER'S REPORT, WHICH DOES NOT APPEAR TO HAVE BEEN REVIEWED BY
THE COURT.  IN THE NUMEROUS OTHER LITIGATIONS OF THE SMITH PATENT WHICH
PRECEDED THE DECISION IN SMITH V. SNOW, SUPRA, SEE 294 U.S. AT 3, NOTE
1, THE HASTINGS DEFENSE WAS NOT URGED.  SINCE THE DECISION IN THE SNOW
CASE THE DEFENSE HAS BEEN INTERPOSED IN SUITS IN THE DISTRICT COURTS,
SMITH V. STREET (DIST. CT. FOR MINN.), SMITH V. SIMS (DIST. CT. FOR
INDIANA) AND IT HAS RECENTLY BEEN SUSTAINED BY THE SUPREME COURT OF
CANADA, IN THE KING V. SMITH INCUBATOR CO. (1937). 

MR. JUSTICE VAN DEVANTER TOOK NO PART IN THE CONSIDERATION OR
DECISION OF THESE CASES. 
..END :













FIRST BANK CORP. V. MINNESOTA, 301 U.S. 234 


NO. 647.  ARGUED MARCH 31, 1937.  - DECIDED APRIL 26, 1937.  - 197 MINN.
544 - 267 N.W. 519, AFFIRMED. 


A DELAWARE CORPORATION TRANSACTED ITS CORPORATE AND FISCAL BUSINESS IN
MINNESOTA, MAINTAINING IN THAT STATE A BUSINESS OFFICE AND HOLDING
THERE ITS MEETINGS OF STOCKHOLDERS, DIRECTORS AND EXECUTIVE COMMITTEE. 
IT OWNED A CONTROLLING INTEREST IN THE STOCK OF A NUMBER OF BANKS OF
SEVERAL STATES.  STOCK CERTIFICATES OF THE SUBSIDIARIES WERE KEPT IN
MINNESOTA AND THERE IT RECEIVED THE DIVIDENDS THEREON, AND DECLARED AND
DISBURSED THE DIVIDENDS UPON ITS OWN SHARES.  THROUGH A WHOLLY-OWNED
SUBSIDIARY CORPORATION, ORGANIZED AND DOING BUSINESS IN MINNESOTA, IT
MAINTAINED A COMPENSATED SERVICE FOR THE BANKS WHICH IT CONTROLLED,
OFFERING ADVICE AS TO THEIR ACCOUNTING PRACTICES, MAKING
RECOMMENDATIONS CONCERNING LOANS, COMMERCIAL PAPER AND INTEREST RATES,
AND MAKING SUGGESTIONS REGARDING THEIR PURCHASE AND SALE OF
SECURITIES.  IT PLANNED FOR THEM ADVERTISING CAMPAIGNS, AND SUPPLIED
ADVERTISING MATERIAL.  THUS IT MAINTAINED WITHIN THE STATE AN
INTEGRATED BUSINESS OF PROTECTING ITS INVESTMENTS IN BANK SHARES, AND
ENHANCING THEIR VALUE, BY THE ACTIVE EXERCISE OF ITS POWER OF CONTROL
THROUGH STOCK OWNERSHIP OF ITS SUBSIDIARY BANKS. 

HELD, THAT THE CORPORATION'S COMMERCIAL DOMICILE WAS IN MINNESOTA AND
THAT ITS SHARES OF STOCK IN NORTH DAKOTA AND MONTANA BANKING
CORPORATIONS WERE TAXABLE BY MINNESOTA.  P. 237. 

WHETHER THE SAME SHARES COULD, CONSISTENTLY WITH THE FOURTEENTH
AMENDMENT, BE TAXED ALSO IN NORTH DAKOTA AND MONTANA, IS A QUESTION NOT
DECIDED. 

FIRST BANK STOCK CORP. V. MINNESOTA. 

APPEAL FROM THE SUPREME COURT OF MINNESOTA. 

APPEAL FROM A JUDGMENT IN FAVOR OF THE STATE OF MINNESOTA IN
PROCEEDINGS TO ENFORCE COLLECTIONS OF DELINQUENT TAXES. 

THE APPELLANT CONTENDS THAT ONLY ONE STATE CAN CONSTITUTIONALLY
IMPOSE A PROPERTY TAX ON INTANGIBLES IN THE CASE OF STATE BANK SHARES. 
IT IS THE STATE OF INCORPORATION OF THE BANK WHICH CAN IMPOSE THE TAX
AND NOT THE STATE OF THE DOMICILE OF THE SHAREHOLDER OR OF THE BUSINESS
SITUS OF THE SHARES.  APPELLANT FURTHER CONTENDS THAT THE SHARES OF
STOCK IT HOLDS IN STATE BANKS LOCATED WITHOUT MINNESOTA HAVE A BUSINESS
SITUS, IF ANY, AT THE LOCATION OF THE BANKS AND NOT IN MINNESOTA. 

IT IS THE POSITION OF APPELLANT THAT THE MINNESOTA STATUTE, AS
CONSTRUED BY THE MINNESOTA SUPREME COURT TO IMPOSE A PROPERTY TAX UPON
APPELLANT'S SHARES OF STOCK IN BANKS ORGANIZED UNDER THE LAWS OF
FOREIGN STATES, IS, FOR THE ABOVE REASONS, UNCONSTITUTIONAL UNDER THE
FOURTEENTH AMENDMENT.  APPELLANT DOES NOT HERE CONTEND THAT THE
MINNESOTA STATUTE IS UNCONSTITUTIONAL IN ANY WAY OTHER THAN IN ITS
APPLICATION TO SHARES OF STOCK IN FOREIGN STATE BANKS. 

THE RIGHT OF A STATE TO TAX PROPERTY WITHIN ITS TERRITORIAL
JURISDICTION IS INHERENT AND AN ATTRIBUTE OF SOVEREIGNTY. 

THIS COURT, IN THE PROCESS OF DEVELOPING A SYMMETRICAL SYSTEM OF
PREVENTING MULTI-STATE TAXATION OF THE SAME ECONOMIC INTEREST, HAS LAID
DOWN CERTAIN RULES BY WHICH THE RIGHT OF A GIVEN STATE TO TAX
INTANGIBLES IS TO BE DETERMINED. 

THE FACTS IN THIS CASE BRING THE PROPERTY HERE IN QUESTION, UNDER THE
RULES AS FORMULATED, WITHIN THE JURISDICTION OF THE STATE OF
MINNESOTA.  THE OWNER HAS A "COMMERCIAL DOMICILE" IN MINNESOTA; THE
PROPERTY IS PHYSICALLY PRESENT IN THAT STATE; AND THE OWNER HAS GIVEN
THE PROPERTY A BUSINESS SITUS THERE BY EMPLOYING IT WITHIN THAT STATE
IN THE CONDUCT OF A SUPER BANKING BUSINESS, WHICH IS A NEW AND
IMPORTANT ECONOMIC UNIT. 

MINNESOTA HAS A CONSTITUTIONAL RIGHT TO TAX THE PROPERTY IN
QUESTION. 

APPELLANT'S POSITION IS UNTENABLE IN THE LIGHT OF RECENT DECISIONS OF
THIS COURT. 

THE RIGHT TO TAX STOCK IN STATE BANKS RESTS ON FUNDAMENTALLY
DIFFERENT CONSIDERATIONS FROM THE RIGHT TO TAX NATIONAL BANK STOCK. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF MINNESOTA,
JUDICIAL CODE, SEC. 237, INVOLVES THE QUESTION WHETHER APPELLANT, A
DELAWARE CORPORATION DOING BUSINESS IN MINNESOTA, MAY BE REQUIRED,
CONSISTENTLY WITH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
TO PAY A PROPERTY TAX LAID BY MINNESOTA UPON APPELLANT'S SHARES OF
STOCK IN MONTANA AND NORTH DAKOTA STATE BANKING CORPORATIONS. 

THE TRIAL COURT CONCLUDED THAT, AS THE SHARES ARE LAWFULLY TAXED BY
MONTANA AND NORTH DAKOTA, IT WOULD BE A DENIAL OF DUE PROCESS TO TAX
THEM IN MINNESOTA.  THE SUPREME COURT OF THE STATE REVERSED, HOLDING
THAT AS APPELLANT HAS ACQUIRED A COMMERCIAL DOMICIL WITHIN THE STATE,
AND AS ITS SHARES IN THE MONTANA AND NORTH DAKOTA BANKS ARE ASSETS OF
THE BUSINESS CARRIED ON BY APPELLANT IN MINNESOTA, THEY ARE RIGHTLY
TAXED THERE RATHER THAN IN MONTANA OR NORTH DAKOTA.  197 MINN. 544; 267
N.W. 519. 

APPELLANT IS QUALIFIED TO DO BUSINESS IN MINNESOTA, AND IN FACT
TRANSACTS ITS CORPORATE BUSINESS AND FISCAL AFFAIRS THERE.  IT
MAINTAINS A BUSINESS OFFICE WITHIN THE STATE AND HOLDS THERE ITS
MEETINGS OF STOCKHOLDERS, DIRECTORS AND THEIR EXECUTIVE COMMITTEE.  IT
IS THE OWNER OF A CONTROLLING INTEREST IN THE STOCK OF A LARGE NUMBER
OF BANKS, TRUST COMPANIES AND OTHER FINANCIAL INSTITUTIONS, LOCATED IN
THE NINTH FEDERAL RESERVE DISTRICT.  THE STOCK CERTIFICATES ARE KEPT IN
MINNESOTA, WHERE APPELLANT RECEIVES DIVIDENDS DECLARED BY ITS
SUBSIDIARIES, AND WHERE IT DECLARES AND DISBURSES DIVIDENDS UPON ITS
OWN STOCK. 

THROUGH A WHOLLY-OWNED SUBSIDIARY CORPORATION, ORGANIZED AND DOING
BUSINESS IN MINNESOTA, IT MAINTAINS A COMPENSATED SERVICE FOR THE BANKS
WHICH IT CONTROLS.  IT OFFERS ADVICE AS TO THEIR ACCOUNTING PRACTICES,
MAKES RECOMMENDATIONS CONCERNING LOANS, COMMERCIAL PAPER AND INTEREST
RATES, AND MAKES SUGGESTIONS REGARDING THEIR PURCHASE AND SALE OF
SECURITIES.  IT ALSO PLANS FOR THEM ADVERTISING CAMPAIGNS, AND SUPPLIES
ADVERTISING MATERIAL.  APPELLANT THUS MAINTAINS WITHIN THE STATE AN
INTEGRATED BUSINESS OF PROTECTING ITS INVESTMENTS IN BANK SHARES, AND
ENHANCING THEIR VALUE, BY THE ACTIVE EXERCISE OF ITS POWER OF CONTROL
THROUGH STOCK OWNERSHIP OF ITS SUBSIDIARY BANKS. 

APPELLANT IS TO BE REGARDED AS LEGALLY DOMICILED IN DELAWARE, THE
PLACE OF ITS ORGANIZATION, AND AS TAXABLE THERE UPON ITS INTANGIBLES,
SEE CREAM OF WHEAT CO. V. GRAND FORKS, 253 U.S. 325, 328; JOHNSON OIL
REFINING CO. V. OKLAHOMA, 290 U.S. 158, 161; VIRGINIA V. IMPERIAL COAL
SALES CO., 293 U.S. 15, 19, AT LEAST IN THE ABSENCE OF ACTIVITIES
IDENTIFYING THEM WITH SOME OTHER PLACE AS THEIR "BUSINESS SITUS."  BUT
IT IS PLAIN THAT THE BUSINESS WHICH APPELLANT CARRIES ON IN MINNESOTA,
OR DIRECTS FROM ITS OFFICES MAINTAINED THERE, IS SUFFICIENTLY
IDENTIFIED WITH MINNESOTA TO ESTABLISH A "COMMERCIAL DOMICIL" THERE,
AND TO GIVE A BUSINESS SITUS THERE, FOR PURPOSES OF TAXATION, TO
INTANGIBLES WHICH ARE USED IN THE BUSINESS OR ARE INCIDENTAL TO IT, AND
HAVE THUS "BECOME INTEGRAL PARTS OF SOME LOCAL BUSINESS."  WHEELING
STEEL CORP. V. FOX, 298 U.S. 193, 210; SEE FARMERS LOAN & TRUST CO. V.
MINNESOTA, 280 U.S. 204, 213; BEIDLER V. SOUTH CAROLINA TAX COMM'N, 282
U.S. 1, 8; FIRST NATIONAL BANK V. MAINE, 284 U.S. 312, 331. 

THE DOCTRINE THAT INTANGIBLES MAY BE TAXED AT THEIR BUSINESS SITUS,
AS DISTINGUISHED FROM THE LEGAL DOMICIL OF THEIR OWNER, HAS USUALLY
BEEN APPLIED TO OBLIGATIONS TO PAY MONEY, ACQUIRED IN THE COURSE OF A
LOCALIZED BUSINESS.  NEW ORLEANS V. STEMPEL, 175 U.S. 309; BRISTOL V.
WASHINGTON COUNTY, 177 U.S. 133; BOARD OF ASSESSORS V. COMPTOIR
NATIONAL, 191 U.S. 388; METROPOLITAN LIFE INS. CO. V. NEW ORLEANS, 205
U.S. 395; WHEELING STEEL CORP. V. FOX, SUPRA, 212, 213.  BUT IT IS
EQUALLY APPLICABLE TO SHARES OF CORPORATE STOCK WHICH, BECAUSE OF THEIR
USE IN A BUSINESS OF THE OWNER, MAY BE TREATED AS LOCALIZED, FOR
PURPOSES OF TAXATION, AT THE PLACE OF THE BUSINESS, SEE FIRST NATIONAL
BANK V. MAINE, SUPRA, 331; CF. DE GANAY V. LEDERER, 250 U.S. 376, 382. 
APPELLANT'S ENTIRE BUSINESS IN MINNESOTA IS FOUNDED ON ITS OWNERSHIP OF
THE SHARES OF STOCK AND THEIR USE AS INSTRUMENTS OF CORPORATE CONTROL. 
THEY ARE AS MUCH "INTEGRAL PARTS" OF THE LOCAL BUSINESS AS ACCOUNTS
RECEIVABLE IN A MERCHANDISING BUSINESS, OR THE BANK ACCOUNTS IN WHICH
THE PROCEEDS OF THE ACCOUNTS RECEIVABLE ARE DEPOSITED UPON COLLECTION. 
COMPARE WHEELING STEEL CORP. V. FOX, SUPRA, 212-214.  THUS IDENTIFIED
WITH THE BUSINESS CONDUCTED BY APPELLANT IN MINNESOTA, THEY ARE AS
SUBJECT TO LOCAL PROPERTY TAXES AS THEY WOULD BE IF THE OWNER WERE A
PRIVATE INDIVIDUAL DOMICILED IN THE STATE. 

APPELLANT DOES NOT DENY THAT IT IS SUBJECT TO TAXATION IN MINNESOTA
ON SOME INTANGIBLES.  IN MAKING ITS 1934 RETURN OF "MONEYS AND CREDITS"
FOR TAXATION UNDER MINN. STAT. 1927(MASON) SEC. 2337 ET SEQ., WHICH
IMPOSES THE PRESENT TAX, APPELLANT INCLUDED BANK DEPOSITS WITHIN AND
WITHOUT THE STATE, PROMISSORY NOTES, BONDS AND OTHER EVIDENCES OF
INDEBTEDNESS.  IT DOES NOT CHALLENGE THE TAX IMPOSED ON ITS SHARES OF
STOCK IN CORPORATIONS ORGANIZED AND DOING BUSINESS WITHOUT THE STATE,
OTHER THAN THOSE IN THE MONTANA AND NORTH DAKOTA BANKS.  IT SAYS THAT
THESE STATES HAVE ADOPTED THE ONLY FEASIBLE SCHEME OF TAXATION OF THE
SHARES OF STATE BANKS WHICH WILL ADMIT OF A STATE PROPERTY TAX ON
NATIONAL BANK SHARES, SINCE R.S. SEC. 5219(12 U.S.C. SEC. 548), PERMITS
SHARES OF NATIONAL BANKS TO BE TAXED ONLY BY THE STATE WHERE THE BANK
DOES BUSINESS, AND THEN ONLY IF THEY ARE NOT ASSESSED "AT A GREATER
RATE THAN  ...  OTHER MONEYED CAPITAL IN THE HANDS OF INDIVIDUAL
CITIZENS  ...  COMING INTO COMPETITION WITH THE BUSINESS OF NATIONAL
BANKS."  SEE FIRST NATIONAL BANK V. ANDERSON, 269 U.S. 341, 348;
MINNESOTA V. FIRST NATIONAL BANK, 273 U.S. 561.  BOTH STATES ASSESS FOR
PROPERTY TAXATION THE SHARES OF NATIONAL BANKS DOING BUSINESS WITHIN
THEIR LIMITS AND ASSESS IN LIKE MANNER THE SHARES OF STATE BANKS, AND
THUS AVOID DISCRIMINATION IN TAXATION BETWEEN THE SHARES OF NATIONAL
AND OF STATE BANKS. 

APPELLANT ARGUES THAT EVERY STATE MAY ESTABLISH A TAX SITUS WITHIN
THE STATE FOR SHARES OF STOCK IN ITS OWN BANKING CORPORATIONS, AND THAT
MONTANA AND NORTH DAKOTA HAVE DONE SO BY PROVIDING, IN PURSUANCE OF
THEIR SCHEME FOR THE LOCAL TAXATION OF BANKING CORPORATIONS, THAT THE
SHARES SHALL BE TAXABLE THERE.  CORRY V. BALTIMORE, 196 U.S. 466; SEE
NATIONAL BANK V. COMMONWEALTH, 9 WALL.  353; TAPPAN V. MERCHANTS'
NATIONAL BANK, 19 WALL.  490; RHODE ISLAND TRUST CO. V. DOUGHTON, 270
U.S. 69, 81.  IT INSISTS THAT AS THE SHARES ARE PROPERLY TAXABLE BY THE
RESPECTIVE STATES OF THEIR ORIGIN, AND AS DUE PROCESS FORBIDS THE
IMPOSITION OF A PROPERTY TAX UPON INTANGIBLES IN MORE THAN ONE STATE,
THEY CANNOT BE TAXED IN MINNESOTA. 

THE LOGIC IS INEXORABLE IF THE PREMISES ARE ACCEPTED.  BUT WE DO NOT
FIND IT NECESSARY TO DECIDE WHETHER TAXATION OF THE SHARES IN MONTANA
OR NORTH DAKOTA IS FORECLOSED BY SUSTAINING THE MINNESOTA TAX.  NOR
NEED WE INQUIRE WHETHER A NON-RESIDENT SHAREHOLDER, BY ACQUIRING STOCK
IN A LOCAL CORPORATION, SO FAR SUBJECTS HIS INVESTMENT TO THE CONTROL
AND LAWS OF THE STATE WHICH HAS CREATED THE CORPORATION AS TO PRECLUDE
ANY OBJECTION, ON GROUNDS OF DUE PROCESS, TO THE TAXATION OF THE SHARES
THERE, EVEN THOUGH THEY ARE SUBJECT TO TAXATION ELSEWHERE, AT THEIR
BUSINESS SITUS.  FN1  WE LEAVE THOSE QUESTIONS OPEN.  IT IS ENOUGH FOR
PRESENT PURPOSES THAT THIS COURT HAS OFTEN UPHELD AND NEVER DENIED THE
CONSTITUTIONAL POWER TO TAX SHARES OF STOCK AT THE PLACE OF THE DOMICIL
OF THE OWNER.  HAWLEY V. MALDEN, 232 U.S. 1, 11, 12; KLEIN V. BOARD OF
TAX SUPERVISORS, 282 U.S. 19, 24; WRIGHT V. LOUISVILLE & NASHVILLE R.
CO., 195 U.S. 219; KIDD V. ALABAMA, 188 U.S. 730; DARNELL V. INDIANA,
226 U.S. 390.  AND IT HAS FULLY RECOGNIZED THAT THE BUSINESS SITUS OF
AN INTANGIBLE AFFORDS AN ADEQUATE BASIS FOR FIXING A PLACE OF
TAXATION.  SEE WHEELING STEEL CORP. V. FOX, SUPRA; DE GANAY V. LEDERER,
SUPRA; CF. SAFE DEPOSIT & TRUST CO. V. VIRGINIA, 280 U.S. 83, 91. 

THE RULE THAT PROPERTY IS SUBJECT TO TAXATION AT ITS SITUS, WITHIN
THE TERRITORIAL JURISDICTION OF THE TAXING STATE, READILY UNDERSTOOD
AND APPLIED WITH RESPECT TO TANGIBLES, IS IN ITSELF MEANINGLESS WHEN
APPLIED TO INTANGIBLES WHICH, SINCE THEY ARE WITHOUT PHYSICAL
CHARACTERISTICS, CAN HAVE NO LOCATION IN SPACE.  SEE WHEELING STEEL
CORP. V. FOX, SUPRA, 209.  THE RESORT TO A FICTION BY THE ATTRIBUTION
OF A TAX SITUS TO AN INTANGIBLE IS ONLY A MEANS OF SYMBOLIZING, WITHOUT
FULLY REVEALING, THOSE CONSIDERATIONS WHICH ARE PERSUASIVE GROUNDS FOR
DECIDING THAT A PARTICULAR PLACE IS APPROPRIATE FOR THE IMPOSITION OF
THE TAX.  MOBILIA SEQUUNTUR PERSONAM, WHICH HAS WON UNQUALIFIED
ACCEPTANCE WHEN APPLIED TO THE TAXATION OF INTANGIBLES, BLODGETT V.
SILBERMAN, 277 U.S. 1, 9-10, STATES A RULE WITHOUT DISCLOSING THE
REASONS FOR IT.  BUT WE HAVE RECENTLY HAD OCCASION TO POINT OUT THAT
ENJOYMENT BY THE RESIDENT OF A STATE OF THE PROTECTION OF ITS LAWS IS
INSEPARABLE FROM RESPONSIBILITY FOR SHARING THE COSTS OF ITS
GOVERNMENT, AND THAT A TAX MEASURED BY THE VALUE OF RIGHTS PROTECTED IS
BUT AN EQUITABLE METHOD OF DISTRIBUTING THE BURDENS OF GOVERNMENT AMONG
THOSE WHO ARE PRIVILEGED TO ENJOY ITS BENEFITS.  SEE NEW YORK EX REL.
COHN V. GRAVES, 300 U.S. 308. 

THE ECONOMIC ADVANTAGES REALIZED THROUGH THE PROTECTION, AT THE PLACE
OF DOMICIL, OF THE OWNERSHIP OF RIGHTS IN INTANGIBLES, THE VALUE OF
WHICH IS MADE THE MEASURE OF THE TAX, BEAR A DIRECT RELATIONSHIP TO THE
DISTRIBUTION OF BURDENS WHICH THE TAX EFFECTS.  THESE CONSIDERATIONS
SUPPORT THE TAXATION OF INTANGIBLES AT THE PLACE OF DOMICIL, AT LEAST
WHERE THEY ARE NOT SHOWN TO HAVE ACQUIRED A BUSINESS SITUS ELSEWHERE,
AS A PROPER EXERCISE OF THE POWER OF GOVERNMENT.  LIKE CONSIDERATIONS
SUPPORT THEIR TAXATION AT THEIR BUSINESS SITUS, FOR IT IS THERE THAT
THE OWNER IN EVERY PRACTICAL SENSE INVOKES AND ENJOYS THE PROTECTION OF
THE LAWS, AND IN CONSEQUENCE REALIZES THE ECONOMIC ADVANTAGES OF HIS
OWNERSHIP.  WE CANNOT SAY THAT THERE IS ANY WANT OF DUE PROCESS IN THE
TAXATION OF THE CORPORATE SHARES IN MINNESOTA, IRRESPECTIVE OF THE
EXTENT OF THE CONTROL OVER THEM WHICH THE DUE PROCESS CLAUSE MAY SAVE
TO THE STATES OF INCORPORATION.  AFFIRMED. 

FN1  SEE CORRY V. BALTIMORE, 196 U.S. 466, 476, 477; TAPPAN V.
MERCHANTS' NATIONAL BANK, 19 WALL.  490, 499, 500; FLASH V. CONN, 109
U.S. 371, 377; WHITMAN V. OXFORD NATIONAL BANK, 176 U.S. 559, 564;
HANCOCK NATIONAL BANK V. FARNUM, 176 U.S. 640, 643; NASHUA SAVINGS BANK
V. ANGLO-AMERICAN CO., 189 U.S. 221, 230; CANADA SOUTHERN RY. CO. V.
GEBHARD, 109 U.S. 527, 537; RELFE V. RUNDLE, 103 U.S. 222, 226;
BERNHEIMER V. CONVERSE, 206 U.S. 516, 533; CONVERSE V. HAMILTON, 224
U.S. 243, 260; CLARK V. WILLIARD, 292 U.S. 112, 121; ROYAL ARCANUM V.
GREEN, 237 U.S. 531, 542; MODERN WOODMEN OF AMERICA V. MIXER, 267 U.S.
544, 551; BRODERICK V. ROSNER, 294 U.S. 629, 643.   MR. JUSTICE BUTLER
TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE. 
..END :
















HERNDON V. LOWRY, 301 U.S. 242 


NOS. 474 AND 475.  ARGUED FEBRUARY 8, 1937.  - DECIDED APRIL 26, 1937. 
182 GA. 582 - 186 S.E. 429, REVERSED. 


1.  A FEDERAL CONSTITUTIONAL QUESTION GOING TO THE VALIDITY OF A
CONVICTION OF CRIME UNDER A STATE STATUTE WAS NOT DECIDED ON AN APPEAL
TO THE STATE SUPREME COURT BECAUSE NOT PROPERLY RAISED (SEE HERNDON V.
GEORGIA, 295 U.S. 441).  AFTERWARDS THAT COURT CONSIDERED THE QUESTION
AND DECIDED IT AGAINST THE CONVICT, IN A HABEAS CORPUS PROCEEDING. 
HELD THAT THE SCOPE OF HABEAS CORPUS, IN THE CIRCUMSTANCES, WAS A LOCAL
QUESTION AND THAT THE RULING ON THE FEDERAL QUESTION WAS OPEN TO REVIEW
BY THIS COURT.  P. 247. 

2.  A STATE STATUTE PUNISHING AS A CRIME THE ACTS OF SOLICITING
MEMBERS FOR A POLITICAL PARTY AND CONDUCTING MEETINGS OF A LOCAL UNIT
OF THAT PARTY, WHERE ONE OF THE DOCTRINES OF THE PARTY, ESTABLISHED BY
REFERENCE TO A DOCUMENT NOT SHOWN TO HAVE BEEN EXHIBITED TO ANYONE BY
THE ACCUSED, MAY BE SAID TO BE ULTIMATE RESORT TO VIOLENCE IN THE
INDEFINITE FUTURE AGAINST ORGANIZED GOVERNMENT, UNWARRANTABLY INVADES
THE LIBERTY OF FREE SPEECH AND SO VIOLATES THE FOURTEENTH AMENDMENT. 
P. 260. 

3.  THE POWER OF A STATE TO ABRIDGE FREEDOM OF SPEECH AND OF ASSEMBLY
IS THE EXCEPTION RATHER THAN THE RULE; AND THE PENALIZING EVEN OF
UTTERANCES OF A DEFINED CHARACTER MUST FIND ITS JUSTIFICATION IN A
REASONABLE APPREHENSION OF DANGER TO ORGANIZED GOVERNMENT.  THE
LIMITATION UPON INDIVIDUAL LIBERTY MUST HAVE APPROPRIATE RELATION TO
THE SAFETY OF THE STATE.  LEGISLATION WHICH GOES BEYOND THIS NEED
VIOLATES THE CONSTITUTION.  P. 258. 

4.  THE AFFIRMANCE BY THE SUPREME COURT OF A STATE OF A CONVICTION
UNDER A STATUTE AS HAVING SUPPORT IN THE EVIDENCE, NECESSARILY
CONSTRUES THE STATUTE AS AUTHORIZING PUNISHMENT FOR THE ACT SO PROVEN. 
P. 255. 

5.  SECTION 56 OF THE PENAL CODE OF GEORGIA, AS CONSTRUED BY THE
SUPREME COURT OF THE STATE, PUNISHES, AS AN ATTEMPT TO INCITE TO
INSURRECTION, ANY ATTEMPT TO INDUCE OTHERS TO JOIN IN ANY COMBINED
RESISTANCE TO THE LAWFUL AUTHORITY OF THE STATE.  AS AN ELEMENT, THE
ACCUSED MUST HAVE CONTEMPLATED RESISTANCE BY FORCE, BUT IN THIS RESPECT
HE MAY BE FOUND GUILTY IF HE INTENDED THAT AN INSURRECTION "SHOULD
HAPPEN DURING ANY TIME WITHIN WHICH HE MIGHT REASONABLY EXPECT HIS
INFLUENCE TO CONTINUE TO BE DIRECTLY OPERATIVE IN CAUSING SUCH ACTION
BY THOSE WHOM HE SOUGHT TO INDUCE."  HELD THAT THE STATUTE, AS
CONSTRUED AND APPLIED IN THIS CASE, IS REPUGNANT TO THE FOURTEENTH
AMENDMENT IN THAT IT FURNISHES NO SUFFICIENTLY ASCERTAINABLE STANDARD
OF GUILT AND INTERFERES UNDULY WITH FREEDOM OF SPEECH AND OF ASSEMBLY. 
PP. 253, 261. 

HERNDON V. LOWRY, SHERIFF. 

APPEALS FROM THE SUPREME COURT OF GEORGIA. 

APPEALS FROM JUDGMENTS, RENDERED ON CROSS-APPEALS, IN A HABEAS CORPUS
PROCEEDING.  THE COURT BELOW SUSTAINED THE TRIAL COURT IN DECIDING THAT
THE CRIMINAL STATUTE INVOLVED DID NOT INFRINGE LIBERTY OF SPEECH AND
ASSEMBLY, BUT DIFFERED WITH ITS HOLDING THAT THE STATUTE WAS TOO VAGUE
AND INDEFINITE, AND REVERSED ITS DECISION DISCHARGING THE APPELLANT
HERE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE APPELLANT CLAIMS HIS CONVICTION IN A STATE COURT DEPRIVED HIM OF
HIS LIBERTY CONTRARY TO THE GUARANTEES OF THE FOURTEENTH AMENDMENT.  HE
ASSIGNS AS ERROR THE ACTION OF THE SUPREME COURT OF GEORGIA IN
OVERRULING HIS CLAIM AND REFUSING HIM A DISCHARGE UPON HABEAS CORPUS. 
THE PETITION FOR THE WRIT, PRESENTED TO THE SUPERIOR COURT OF FULTON
COUNTY, ASSERTED THE APPELLANT WAS UNLAWFULLY DETAINED BY THE APPELLEE
AS SHERIFF UNDER THE SUPPOSED AUTHORITY OF A JUDGMENT PRONOUNCING HIM
GUILTY OF ATTEMPTING TO INCITE INSURRECTION, AS DEFINED IN SEC. 56 OF
THE PENAL CODE, AND SENTENCING HIM TO IMPRISONMENT FOR NOT LESS THAN
EIGHTEEN NOR MORE THAN TWENTY YEARS.  ATTACHED WERE COPIES OF THE
JUDGMENT AND THE INDICTMENT AND A STATEMENT OF THE EVIDENCE UPON WHICH
THE VERDICT AND JUDGMENT WERE FOUNDED.  THE PETITION ALLEGED THE
JUDGMENT AND SENTENCE WERE VOID AND APPELLANT'S DETENTION ILLEGAL
BECAUSE THE STATUTE UNDER WHICH HE WAS CONVICTED DENIES AND ILLEGALLY
RESTRAINS HIS FREEDOM OF SPEECH AND OF ASSEMBLY AND IS TOO VAGUE AND
INDEFINITE TO PROVIDE A SUFFICIENTLY ASCERTAINABLE STANDARD OF GUILT,
AND FURTHER ALLEGED THAT THERE HAD BEEN NO ADJUDICATION BY ANY COURT OF
THE CONSTITUTIONAL VALIDITY OF THE STATUTE AS APPLIED TO APPELLANT'S
CONDUCT.  A WRIT ISSUED.  THE APPELLEE ANSWERED, DEMURRED SPECIALLY TO,
AND MOVED TO STRIKE, SO MUCH OF THE PETITION AS INCORPORATED THE
EVIDENCE TAKEN AT THE TRIAL.  AT THE HEARING THE STATEMENT OF THE
EVIDENCE WAS IDENTIFIED AND WAS CONCEDED BY THE APPELLEE TO BE FULL AND
ACCURATE.  THE COURT DENIED THE MOTION TO STRIKE, OVERRULED THE SPECIAL
DEMURRER AND AN OBJECTION TO THE ADMISSION OF THE TRIAL RECORD, DECIDED
THAT THE STATUTE, AS CONSTRUED AND APPLIED IN THE TRIAL OF THE
APPELLANT, DID NOT INFRINGE HIS LIBERTY OF SPEECH AND OF ASSEMBLY BUT
RAN AFOUL OF THE FOURTEENTH AMENDMENT BECAUSE TOO VAGUE AND INDEFINITE
TO PROVIDE A SUFFICIENTLY ASCERTAINABLE STANDARD OF GUILT, AND ORDERED
THE PRISONER'S DISCHARGE FROM CUSTODY.  THE APPELLEE TOOK THE CASE TO
THE SUPREME COURT OF GEORGIA, ASSIGNING AS ERROR THE RULING UPON HIS
DEMURRER, MOTION, AND OBJECTION, AND THE DECISION AGAINST THE VALIDITY
OF THE STATUTE.  THE APPELLANT, IN ACCORDANCE WITH THE STATE PRACTICE,
ALSO APPEALED, ASSIGNING AS ERROR THE DECISION WITH RESPECT TO HIS
RIGHT OF FREE SPEECH AND OF ASSEMBLY.  THE TWO APPEALS WERE SEPARATELY
DOCKETED BUT CONSIDERED IN A SINGLE OPINION WHICH REVERSED THE JUDGMENT
ON THE APPELLEE'S APPEAL AND AFFIRMED ON THAT OF THE APPELLANT,  FN1
CONCLUDING:  "UNDER THE PLEADINGS AND THE EVIDENCE, WHICH EMBRACED THE
RECORD ON THE TRIAL THAT RESULTED IN THE CONVICTION, THE COURT ERRED,
IN THE HABEAS CORPUS PROCEEDING, IN REFUSING TO REMAND THE PRISONER TO
THE CUSTODY OF THE OFFICERS." 

THE FEDERAL QUESTIONS PRESENTED, AND THE MANNER IN WHICH THEY ARISE,
APPEAR FROM THE RECORD OF APPELLANT'S TRIAL AND CONVICTION EMBODIED IN
THE PETITION, AND FROM THE OPINIONS OF THE STATE SUPREME COURT IN THE
CRIMINAL PROCEEDING. 

AT THE JULY TERM 1932 OF THE SUPERIOR COURT OF FULTON COUNTY AN
INDICTMENT WAS RETURNED CHARGING AGAINST THE APPELLANT AN ATTEMPT TO
INDUCE OTHERS TO JOIN IN COMBINED RESISTANCE TO THE LAWFUL AUTHORITY OF
THE STATE WITH INTENT TO DENY, TO DEFEAT, AND TO OVERTHROW SUCH
AUTHORITY BY OPEN FORCE, VIOLENT MEANS, AND UNLAWFUL ACTS; ALLEGING
THAT INSURRECTION WAS INTENDED TO BE MANIFESTED AND ACCOMPLISHED BY
UNLAWFUL AND VIOLENT ACTS.  THE INDICTMENT SPECIFIED THAT THE ATTEMPT
WAS MADE BY CALLING AND ATTENDING PUBLIC ASSEMBLIES AND BY MAKING
SPEECHES FOR THE PURPOSE OF ORGANIZING AND ESTABLISHING GROUPS AND
COMBINATIONS OF WHITE AND COLORED PERSONS UNDER THE NAME OF THE
COMMUNIST PARTY OF ATLANTA FOR THE PURPOSE OF UNITING, COMBINING, AND
CONSPIRING TO INCITE RIOTS AND TO EMBARRASS AND IMPEDE THE ORDERLY
PROCESSES OF THE COURTS AND OFFERING COMBINED RESISTANCE TO, AND, BY
FORCE AND VIOLENCE, OVERTHROWING AND DEFEATING THE AUTHORITY OF THE
STATE; THAT BY SPEECH AND PERSUASION, THE APPELLANT SOLICITED AND
ATTEMPTED TO SOLICIT PERSONS TO JOIN, CONFEDERATE WITH, AND BECOME
MEMBERS OF THE COMMUNIST PARTY AND THE YOUNG COMMUNIST LEAGUE AND
INTRODUCED INTO THE STATE AND CIRCULATED, AIDED AND ASSISTED IN
INTRODUCING AND CIRCULATING, BOOKLETS, PAPERS, AND OTHER WRITINGS WITH
THE SAME INTENT AND PURPOSE.  THE CHARGE WAS FOUNDED ON SEC. 56 OF THE
PENAL CODE, ONE OF FOUR RELATED SECTIONS.  SECTION 55 DEFINES
INSURRECTION, SEC. 56 DEFINES AN ATTEMPT TO INCITE INSURRECTION, SEC.
57 PRESCRIBES THE DEATH PENALTY FOR CONVICTION OF THE OFFENSES
DESCRIBED IN THE TWO PRECEDING SECTIONS UNLESS THE JURY SHALL RECOMMEND
MERCY, AND SEC. 58 PENALIZES, BY IMPRISONMENT, THE INTRODUCTION AND
CIRCULATION OF PRINTED MATTER FOR THE PURPOSE OF INCITING INSURRECTION,
RIOT, CONSPIRACY, ETC.  THE SECTIONS ARE COPIED IN THE MARGIN.  FN2 

THE APPELLANT WAS BROUGHT TO TRIAL AND CONVICTED.  HE APPEALED ON THE
GROUND THAT, UNDER THE STATUTE AS CONSTRUED BY THE TRIAL COURT IN ITS
INSTRUCTIONS TO THE JURY, THERE WAS NO EVIDENCE TO SUSTAIN A VERDICT OF
GUILTY.  THE SUPREME COURT AFFIRMED THE JUDGMENT UPON A BROADER AND
DIFFERENT CONSTRUCTION OF THE ACT.  FN3  THE APPELLANT MOVED FOR A
REHEARING, CONTENDING, INTER ALIA, THAT, AS SO CONSTRUED, THE STATUTE
VIOLATED THE FOURTEENTH AMENDMENT.  THE COURT REFUSED TO PASS UPON THE
CONSTITUTIONAL QUESTIONS THUS RAISED, ELABORATED AND EXPLAINED ITS
CONSTRUCTION OF THE STATUTE IN ITS ORIGINAL OPINION, AND DENIED A
REHEARING.  FN4  THE APPELLANT PERFECTED AN APPEAL TO THIS COURT
CLAIMING THAT HE HAD TIMELY RAISED THE FEDERAL QUESTIONS AND WE,
THEREFORE, HAD JURISDICTION TO DECIDE THEM.  WE HELD WE WERE WITHOUT
JURISDICTION.  FN5  UPON HIS COMMITMENT TO SERVE HIS SENTENCE HE SOUGHT
THE WRIT OF HABEAS CORPUS. 

IN THE PRESENT PROCEEDING THE SUPERIOR COURT AND SUPREME COURT OF
GEORGIA HAVE CONSIDERED AND DISPOSED OF THE CONTENTIONS BASED UPON THE
FEDERAL CONSTITUTION.  THE SCOPE OF A HABEAS CORPUS PROCEEDING IN THE
CIRCUMSTANCES DISCLOSED IS A STATE AND NOT A FEDERAL QUESTION AND SINCE
THE STATE COURTS TREATED THE PROCEEDING AS PROPERLY RAISING ISSUES OF
FEDERAL CONSTITUTIONAL RIGHT, WE HAVE JURISDICTION AND ALL SUCH ISSUES
ARE OPEN HERE.  WE MUST, THEN, INQUIRE WHETHER THE STATUTE AS APPLIED
IN THE TRIAL DENIED APPELLANT RIGHTS SAFEGUARDED BY THE FOURTEENTH
AMENDMENT. 

THE EVIDENCE ON WHICH THE JUDGMENT RESTS CONSISTS OF APPELLANT'S
ADMISSIONS AND CERTAIN DOCUMENTS FOUND IN HIS POSSESSION.  THE
APPELLANT TOLD THE STATE'S OFFICERS THAT SOME TIME PRIOR TO HIS ARREST
HE JOINED THE COMMUNIST PARTY IN KENTUCKY AND LATER CAME TO ATLANTA AS
A PAID ORGANIZER FOR THE PARTY, HIS DUTIES BEING TO CALL MEETINGS, TO
EDUCATE AND DISSEMINATE INFORMATION RESPECTING THE PARTY, TO DISTRIBUTE
LITERATURE, TO SECURE MEMBERS, AND TO WORK UP AN ORGANIZATION OF THE
PARTY IN ATLANTA; AND THAT HE HAD HELD OR ATTENDED THREE MEETINGS
CALLED BY HIM.  HE MADE NO FURTHER ADMISSION AS TO WHAT HE DID AS AN
ORGANIZER, OR WHAT HE SAID OR DID AT THE MEETINGS.  WHEN ARRESTED HE
CARRIED A BOX CONTAINING DOCUMENTS.  AFTER HE WAS ARRESTED HE CONDUCTED
THE OFFICERS TO HIS ROOM WHERE ADDITIONAL DOCUMENTS AND BUNDLES OF
NEWSPAPERS AND PERIODICALS WERE FOUND, WHICH HE STATED WERE SENT HIM
FROM THE HEADQUARTERS OF THE COMMUNIST PARTY IN NEW YORK.  HE GAVE THE
NAMES OF PERSONS WHO WERE MEMBERS OF THE ORGANIZATION IN ATLANTA, AND
STATED HE HAD ONLY FIVE OR SIX ACTUAL MEMBERS AT THE TIME OF HIS
APPREHENSION.  THE STUBS OF MEMBERSHIP BOOKS FOUND IN THE BOX INDICATED
HE HAD ENROLLED MORE MEMBERS THAN HE STATED.  THERE WAS NO EVIDENCE
THAT HE HAD DISTRIBUTED ANY OF THE MATERIAL CARRIED ON HIS PERSON AND
FOUND IN HIS ROOM, OR HAD TAKEN ANY OF IT TO MEETINGS, SAVE TWO
CIRCULARS OR APPEALS RESPECTING COUNTY RELIEF WHICH ARE CONFESSEDLY
INNOCUOUS. 

THE NEWSPAPERS, PAMPHLETS, PERIODICALS, AND OTHER DOCUMENTS FOUND IN
HIS ROOM WERE, SO HE STATED, INTENDED FOR DISTRIBUTION AT HIS
MEETINGS.  THESE THE APPELLEE CONCEDES WERE NOT INTRODUCED IN
EVIDENCE.  CERTAIN DOCUMENTS IN HIS POSSESSION WHEN HE WAS ARRESTED
WERE PLACED IN EVIDENCE.  THEY FALL INTO FIVE CLASSES:  FIRST, RECEIPT
BOOKS SHOWING RECEIPTS OF SMALL SUMS OF MONEY, PADS CONTAINING
CERTIFICATES OF CONTRIBUTIONS TO THE COMMUNIST PARTY'S PRESIDENTIAL
ELECTION CAMPAIGN FUND, RECEIPTS FOR RENT OF A POST OFFICE BOX, AND
COMMUNIST PARTY MEMBERSHIP BOOKS; SECONDLY, PRINTED MATTER CONSISTING
OF MAGAZINES, PAMPHLETS, AND COPIES OF THE "DAILY WORKER," STYLED THE
"CENTRAL ORGAN OF THE COMMUNIST PARTY," AND THE "SOUTHERN WORKER,"
ALSO, APPARENTLY, AN OFFICIAL NEWSPAPER OF THE PARTY; THIRDLY, TWO
BOOKS, ONE "LIFE AND STRUGGLES OF NEGRO TOILERS," BY GEORGE PADMORE,
AND THE OTHER "COMMUNISM AND CHRISTIANISM ANALYZED AND CONTRASTED FROM
THE MARXIAN AND DARWINIAN POINTS OF VIEW" BY RT. REV. WILLIAM
MONTGOMERY BROWN, D.D.; FOURTHLY, TRANSCRIPTS OF MINUTES OF MEETINGS
APPARENTLY HELD IN ATLANTA; FIFTHLY, TWO CIRCULARS, ONE OF WHICH WAS
PREPARED BY THE APPELLANT AND BOTH OF WHICH HAD BEEN CIRCULATED BY HIM
IN FULTON COUNTY.  ALL OF THESE MAY BE DISMISSED AS IRRELEVANT EXCEPT
THOSE FALLING WITHIN THE FIRST AND SECOND GROUPS.  NO INFERENCE CAN BE
DRAWN FROM THE POSSESSION OF THE BOOKS MENTIONED, EITHER THAT THEY
EMBODIED THE DOCTRINES OF THE COMMUNIST PARTY OR THAT THEY REPRESENTED
VIEWS ADVOCATED BY THE APPELLANT.  THE MINUTES OF MEETINGS CONTAIN
NOTHING INDICATING THE PURPOSES OF THE ORGANIZATION OR ANY INTENT TO
OVERTHROW ORGANIZED GOVERNMENT; ON THE CONTRARY, THEY INDICATE MERELY
DISCUSSION OF RELIEF FOR THE UNEMPLOYED.  THE TWO CIRCULARS, ADMITTEDLY
DISTRIBUTED BY THE APPELLANT, HAD NOTHING TO DO WITH THE COMMUNIST
PARTY, ITS AIMS OR PURPOSES, AND WERE NOT APPEALS TO JOIN THE PARTY BUT
WERE CONCERNED WITH UNEMPLOYMENT RELIEF IN THE COUNTY AND INCLUDED
APPEALS TO THE WHITE AND NEGRO UNEMPLOYED TO ORGANIZE AND REPRESENT THE
NEED FOR FURTHER COUNTY AID.  THEY WERE CHARACTERIZED BY THE SUPREME
COURT OF GEORGIA AS "MORE OR LESS HARMLESS." 

THE DOCUMENTS OF THE FIRST CLASS DISCLOSE THE ACTIVITY OF THE
APPELLANT AS AN ORGANIZER BUT, IN THIS RESPECT, ADD NOTHING TO HIS
ADMISSIONS. 

THE MATTER APPEARING UPON THE MEMBERSHIP BLANKS IS INNOCENT UPON ITS
FACE HOWEVER FOOLISH AND PERNICIOUS THE AIMS IT SUGGESTS.  UNDER THE
HEADING "WHAT IS THE COMMUNIST PARTY?"  THIS APPEARS: 

"THE PARTY IS THE VANGUARD OF THE WORKING CLASS AND CONSISTS OF THE
BEST, MOST CLASS CONSCIOUS, MOST ACTIVE, THE MOST COURAGEOUS MEMBERS OF
THAT CLASS.  IT INCORPORATES THE WHOLE BODY OF EXPERIENCE OF THE
PROLETARIAN STRUGGLE, BASING ITSELF UPON THE REVOLUTIONARY THEORY OF
MARXISM AND REPRESENTING THE GENERAL AND LASTING INTERESTS OF THE WHOLE
OF THE WORKING CLASS, THE PARTY PERSONIFIES THE UNITY OF PROLETARIAN
PRINCIPLES, OF PROLETARIAN WILL AND OF PROLETARIAN REVOLUTIONARY
ACTION. 

"WE ARE THE PARTY OF THE WORKING CLASS.  CONSEQUENTLY, NEARLY THE
WHOLE OF THAT CLASS (IN TIME OF WAR AND CIVIL WAR, THE WHOLE OF THAT
CLASS) SHOULD WORK UNDER THE GUIDANCE OF OUR PARTY, SHOULD CREATE THE
CLOSEST CONTACTS WITH OUR PARTY." 

THIS VAGUE DECLARATION FALLS SHORT OF AN ATTEMPT TO BRING ABOUT
INSURRECTION EITHER IMMEDIATELY OR WITHIN A REASONABLE TIME BUT AMOUNTS
MERELY TO A STATEMENT OF ULTIMATE IDEALS.  THE BLANKS, HOWEVER,
INDICATE MORE SPECIFIC AIMS FOR WHICH MEMBERS OF THE COMMUNIST PARTY
ARE TO VOTE.  THEY ARE TO VOTE COMMUNIST FOR 

"1.  UNEMPLOYMENT AND SOCIAL INSURANCE AT THE EXPENSE OF THE STATE
AND EMPLOYERS. 

"2.  AGAINST HOOVER'S WAGE-CUTTING POLICY. 

"3.  EMERGENCY RELIEF FOR THE POOR FARMERS WITHOUT RESTRICTIONS BY
THE GOVERNMENT AND BANKS; EXEMPTION OF POOR FARMERS FROM TAXES AND FROM
FORCED COLLECTION OF RENTS OR DEBTS. 

"4.  EQUAL RIGHTS FOR THE NEGROES AND SELF-DETERMINATION FOR THE
BLACK BELT. 

"5.  AGAINST CAPITALISTIC TERROR:  AGAINST ALL FORMS OF SUPPRESSION
OF THE POLITICAL RIGHTS OF THE WORKERS. 

"6.  AGAINST IMPERIALIST WAR; FOR THE DEFENSE OF THE CHINESE PEOPLE
AND OF THE SOVIET UNION." 

NONE OF THESE AIMS IS CRIMINAL UPON ITS FACE.  AS TO ONE, THE 4TH,
THE CLAIM IS THAT CRIMINALITY MAY BE FOUND BECAUSE OF EXTRINSIC FACTS. 
THOSE FACTS CONSIST OF POSSESSION BY APPELLANT OF BOOKLETS AND OTHER
LITERATURE OF THE SECOND CLASS ILLUSTRATING THE PARTY DOCTRINES.  THE
STATE CONTENDS THESE SHOW THAT THE PURPOSES OF THE COMMUNIST PARTY WERE
FORCIBLE SUBVERSION OF THE LAWFUL AUTHORITY OF GEORGIA.  THEY CONTAIN,
INTER ALIA, STATEMENTS TO THE EFFECT THAT THE PARTY BASES ITSELF UPON
THE REVOLUTIONARY THEORY OF MARXISM, OPPOSES "BOSSES' WARS," APPROVES
OF THE SOVIET UNION, AND DESIRES THE "SMASHING" OF THE NATIONAL GUARD,
THE C.M.T.C., AND THE R.O.T.C. BUT THE STATE ESPECIALLY RELIES UPON A
BOOKLET ENTITLED "THE COMMUNIST POSITION ON THE NEGRO QUESTION," ON THE
COVER OF WHICH APPEARS A MAP OF THE UNITED STATES HAVING A DARK BELT
ACROSS CERTAIN SOUTHERN STATES AND THE PHRASE "SELF-DETERMINATION FOR
THE BLACK BELT." THE BOOKLET AFFIRMS THAT THE SOURCE OF THE COMMUNIST
SLOGAN "RIGHT OF SELF-DETERMINATION OF THE NEGROES IN THE BLACK BELT"
IS A RESOLUTION OF THE COMMUNIST INTERNATIONAL ON THE NEGRO QUESTION IN
THE UNITED STATES ADOPTED IN 1930, WHICH STATES THAT THE COMMUNIST
PARTY IN THE UNITED STATES HAS BEEN ACTIVELY ATTEMPTING TO WIN
INCREASING SYMPATHY AMONG THE NEGRO POPULATION, THAT CERTAIN THINGS
HAVE BEEN ADVOCATED FOR THE BENEFIT OF THE NEGROES IN THE NORTHERN
STATES, BUT THAT IN THE SOUTHERN PORTION OF THE UNITED STATES THE
COMMUNIST SLOGAN MUST BE "THE RIGHT OF SELF-DETERMINATION OF THE
NEGROES IN THE BLACK BELT."  THE RESOLUTION DEFINES THE MEANING OF THE
SLOGAN AS 

"(A)  CONFISCATION OF THE LANDED PROPERTY OF THE WHITE LANDOWNERS AND
CAPITALISTS FOR THE BENEFIT OF THE NEGRO FARMERS  ...  WITHOUT THIS
REVOLUTIONARY MEASURE, WITHOUT THE AGRARIAN REVOLUTION, THE RIGHT OF
SELF-DETERMINATION OF THE NEGRO POPULATION WOULD BE ONLY A UTOPIA OR,
AT BEST, WOULD REMAIN ONLY ON PAPER WITHOUT CHANGING IN ANY WAY THE
ACTUAL ENSLAVEMENT." 

"(B)  ESTABLISHMENT OF THE STATE UNITY OF THE BLACK BELT  ...  IF THE
RIGHT OF SELF-DETERMINATION OF THE NEGROES IS TO BE PUT INTO FORCE, IT
IS NECESSARY WHEREVER POSSIBLE TO BRING TOGETHER INTO ONE GOVERNMENTAL
UNIT ALL DISTRICTS OF THE SOUTH WHERE THE MAJORITY OF THE SETTLED
POPULATION CONSISTS OF NEGROES  ..." 

"(C)  RIGHT OF SELF-DETERMINATION.  THIS MEANS COMPLETE AND UNLIMITED
RIGHT OF THE NEGRO MAJORITY TO EXERCISE GOVERNMENTAL AUTHORITY IN THE
ENTIRE TERRITORY OF THE BLACK BELT, AS WELL AS TO DECIDE UPON THE
RELATIONS BETWEEN THEIR TERRITORY AND OTHER NATIONS, PARTICULARLY THE
UNITED STATES  ...  FIRST OF ALL, TRUE RIGHT TO SELF-DETERMINATION
MEANS THAT THE NEGRO MAJORITY AND NOT THE WHITE MINORITY IN THE ENTIRE
TERRITORY OF THE ADMINISTRATIVELY UNITED BLACK BELT EXERCISES THE RIGHT
OF ADMINISTERING GOVERNMENTAL, LEGISLATIVE, AND JUDICIAL AUTHORITY.  AT
THE PRESENT TIME ALL THIS POWER IS CONCENTRATED IN THE HANDS OF THE
WHITE BOURGEOISIE AND LANDLORDS.  IT IS THEY WHO APPOINT ALL OFFICIALS,
IT IS THEY WHO DISPOSE OF PUBLIC PROPERTY, IT IS THEY WHO DETERMINE THE
TAXES, IT IS THEY WHO GOVERN AND MAKE THE LAWS.  THEREFORE, THE
OVERTHROW OF THIS CLASS RULE IN THE BLACK BELT IS UNCONDITIONALLY
NECESSARY IN THE STRUGGLE FOR THE NEGROES' RIGHT TO SELF
DETERMINATION.  THIS, HOWEVER, MEANS AT THE SAME TIME THE OVERTHROW OF
THE YOKE OF AMERICAN IMPERIALISM IN THE BLACK BELT ON WHICH THE FORCES
OF THE LOCAL WHITE BOURGEOISIE DEPEND.  ONLY IN THIS WAY, ONLY IF THE
NEGRO POPULATION OF THE BLACK BELT WINS ITS FREEDOM FROM AMERICAN
IMPERIALISM EVEN TO THE POINT OF DECIDING ITSELF THE RELATIONS BETWEEN
ITS COUNTRY AND OTHER GOVERNMENTS, ESPECIALLY THE UNITED STATES, WILL
IT WIN REAL AND COMPLETE SELF-DETERMINATION.  ONE SHOULD DEMAND FROM
THE BEGINNING THAT NO ARMED FORCES OF AMERICAN IMPERIALISM SHOULD
REMAIN ON THE TERRITORY OF THE BLACK BELT." 

FURTHER STATEMENTS APPEARING IN THE PAMPHLET ARE: 

"EVEN IF THE SITUATION DOES NOT YET WARRANT THE RAISING OF THE
QUESTION OF UPRISING, ONE SHOULD NOT LIMIT ONESELF AT PRESENT TO
PROPAGANDA FOR THE DEMAND, 'RIGHT TO SELF-DETERMINATION,' BUT SHOULD
ORGANIZE MASS ACTIONS, SUCH AS DEMONSTRATIONS, STRIKES, TAX BOYCOTT
MOVEMENTS, ETC." 

"ONE CANNOT DENY THAT IT IS JUST POSSIBLE FOR THE NEGRO POPULATION OF
THE BLACK BELT TO WIN THE RIGHT TO SELF-DETERMINATION DURING
CAPITALISM; BUT IT IS PERFECTLY CLEAR AND INDUBITABLE THAT THIS IS
POSSIBLE ONLY THROUGH SUCCESSFUL REVOLUTIONARY STRUGGLE FOR POWER
AGAINST THE AMERICAN BOURGEOISIE, THROUGH WRESTING THE NEGROES' RIGHT
OF SELF-DETERMINATION FROM AMERICAN IMPERIALISM.  THUS, THE SLOGAN OF
RIGHT TO SELF-DETERMINATION IS A REAL SLOGAN OF NATIONAL REBELLION
WHICH, TO BE CONSIDERED AS SUCH, NEED NOT BE SUPPLEMENTED BY
PROCLAIMING STRUGGLE FOR THE COMPLETE SEPARATION OF THE NEGRO ZONE, AT
LEAST NOT AT PRESENT." 

THERE IS MORE OF THE SAME PURPORT, PARTICULARLY REFERENCES TO THE
"REVOLUTIONARY TRADE UNIONS IN THE SOUTH," "REVOLUTIONARY STRUGGLE
AGAINST THE RULING WHITE BOURGEOISIE," AND "REVOLUTIONARY PROGRAM OF
THE COMMUNIST PARTY." 

THERE IS NO EVIDENCE THE APPELLANT DISTRIBUTED ANY WRITINGS OR
PRINTED MATTER FOUND IN THE BOX HE CARRIED WHEN ARRESTED, OR ANY OTHER
ADVOCATING FORCIBLE SUBVERSION OF GOVERNMENTAL AUTHORITY.  THERE IS NO
EVIDENCE THE APPELLANT ADVOCATED, BY SPEECH OR WRITTEN WORD, AT
MEETINGS OR ELSEWHERE, ANY DOCTRINE OR ACTION IMPLYING SUCH FORCIBLE
SUBVERSION.  THERE IS EVIDENCE TENDING TO PROVE THAT THE APPELLANT HELD
MEETINGS FOR THE PURPOSE OF RECRUITING MEMBERS OF THE COMMUNIST PARTY
AND SOLICITED CONTRIBUTIONS FOR THE SUPPORT OF THAT PARTY AND THERE IS
PROOF OF THE DOCTRINES WHICH THAT PARTY ESPOUSES.  APPELLANT'S INTENT
TO INCITE INSURRECTION, IF IT IS TO BE FOUND, MUST REST UPON HIS
PROCURING MEMBERS FOR THE COMMUNIST PARTY AND HIS POSSESSION OF THAT
PARTY'S LITERATURE WHEN HE WAS ARRESTED. 

"COMBINED RESISTANCE TO THE LAWFUL AUTHORITY OF THE STATE, WITH INTENT
TO THE DENIAL THEREOF, WHEN THE SAME IS MANIFESTED OR INTENDED TO BE
MANIFESTED BY ACTS OF VIOLENCE."  FN6  THE APPELLANT WAS NOT INDICTED
UNDER THIS SECTION.  SECTION 58 DENOUNCES THE INTRODUCTION, PRINTING,
OR CIRCULATION, OR ASSISTING TO PRINT OR CIRCULATE ANY DOCUMENT "FOR
THE PURPOSE OF INCITING INSURRECTION."  THE APPELLANT WAS NOT INDICTED
UNDER THIS SECTION. 

FORCE OR VIOLENCE EXCEPT BY THE PHRASE "COMBINED RESISTANCE TO THE
LAWFUL AUTHORITY OF THE STATE."  THE SUPREME COURT EVIDENTLY IMPORTING
FROM THE SIMILAR PHRASEOLOGY IN SEC. 55 THE ADDITIONAL ELEMENT
CONTAINED IN THAT SECTION, NAMELY, "MANIFESTED OR INTENDED TO BE
MANIFESTED BY ACTS OF VIOLENCE," HAS DECIDED THAT INTENDED RESORT TO
FORCE IS AN ESSENTIAL ELEMENT OF THE OFFENSE DEFINED BY SEC. 56. 

TO ASCERTAIN HOW THE ACT IS HELD TO APPLY TO THE APPELLANT'S CONDUCT
WE TURN TO THE RULINGS OF THE STATE COURTS IN HIS CASE.  THE TRIAL
COURT INSTRUCTED THE JURY:  "IN ORDER TO CONVICT THE DEFENDANT,  ...
IT MUST APPEAR CLEARLY BY THE EVIDENCE THAT IMMEDIATE SERIOUS VIOLENCE
AGAINST THE STATE OF GEORGIA WAS TO BE EXPECTED OR ADVOCATED."  THE
JURY RENDERED A VERDICT OF GUILTY.  IN THE SUPREME COURT THE APPELLANT
URGED THAT THE EVIDENCE WAS WHOLLY INSUFFICIENT TO SUSTAIN THE VERDICT
UNDER THE LAW AS THUS CONSTRUED.  THAT COURT SUSTAINED THE CONVICTION
BY CONSTRUING THE STATUTE THUS: 

"FORCE MUST HAVE BEEN CONTEMPLATED, BUT, AS SAID ABOVE, THE STATUTE
DOES NOT INCLUDE EITHER ITS OCCURRENCE OR ITS IMMINENCE AS AN
INGREDIENT OF THE PARTICULAR OFFENSE CHARGED....  NOR WOULD IT BE
NECESSARY TO GUILT THAT THE ALLEGED OFFENDER SHOULD HAVE INTENDED THAT
AN INSURRECTION SHOULD FOLLOW INSTANTLY OR AT ANY GIVEN TIME, BUT IT
WOULD BE SUFFICIENT THAT HE INTENDED IT TO HAPPEN AT ANY TIME, AS A
RESULT OF HIS INFLUENCE, BY THOSE WHOM HE SOUGHT TO INCITE."  FN7 

UPON APPLICATION FOR REHEARING THE COURT FURTHER ELABORATED ITS VIEWS
AS TO THE MEANING OF THE STATUTE: 

"FORCE MUST HAVE BEEN CONTEMPLATED, BUT THE STATUTE DOES NOT INCLUDE
EITHER ITS OCCURRENCE OR ITS IMMINENCE AS AN INGREDIENT OF THE
PARTICULAR OFFENSE CHARGED.  NOR WOULD IT BE NECESSARY TO GUILT THAT
THE ALLEGED OFFENDER SHOULD HAVE INTENDED THAT AN INSURRECTION SHOULD
FOLLOW INSTANTLY OR AT ANY GIVEN TIME, BUT AS TO THIS ELEMENT IT WOULD
BE SUFFICIENT IF HE INTENDED THAT IT SHOULD HAPPEN AT ANY TIME WITHIN
WHICH HE MIGHT REASONABLY EXPECT HIS INFLUENCE TO CONTINUE TO BE
DIRECTLY OPERATIVE IN CAUSING SUCH ACTION BY THOSE WHOM HE SOUGHT TO
INDUCE...."  FN8 

THE AFFIRMANCE OF CONVICTION UPON THE TRIAL RECORD NECESSARILY GIVES
SEC. 56 THE CONSTRUCTION THAT ONE WHO SEEKS MEMBERS FOR OR ATTEMPTS TO
ORGANIZE A LOCAL UNIT OF A PARTY WHICH HAS THE PURPOSES AND OBJECTS
DISCLOSED BY THE DOCUMENTS IN EVIDENCE MAY BE FOUND GUILTY OF AN
ATTEMPT TO INCITE INSURRECTION. 

THE QUESTIONS ARE WHETHER THIS CONSTRUCTION AND APPLICATION OF THE
STATUTE DEPRIVES THE ACCUSED OF THE RIGHT OF FREEDOM OF SPEECH AND OF
ASSEMBLY GUARANTEED BY THE FOURTEENTH AMENDMENT, AND WHETHER THE
STATUTE SO CONSTRUED AND APPLIED FURNISHES A REASONABLY DEFINITE AND
ASCERTAINABLE STANDARD OF GUILT. 

THE APPELLANT, WHILE ADMITTING THAT THE PEOPLE MAY PROTECT THEMSELVES
AGAINST ABUSES OF THE FREEDOM OF SPEECH SAFEGUARDED BY THE FOURTEENTH
AMENDMENT BY PROHIBITING INCITEMENT TO VIOLENCE AND CRIME, INSISTS THAT
LEGISLATIVE REGULATION MAY NOT GO BEYOND MEASURES FOREFENDING AGAINST
"CLEAR AND PRESENT DANGER" OF THE USE OF FORCE AGAINST THE STATE.  FOR
THIS POSITION HE RELIES UPON OUR DECISIONS UNDER THE FEDERAL ESPIONAGE
ACTS  FN9  AND COGNATE STATE LEGISLATION.  THESE MADE IT CRIMINAL
WILFULLY TO CAUSE OR TO ATTEMPT TO CAUSE, OR INCITE OR ATTEMPT TO
INCITE, INSUBORDINATION, DISLOYALTY, MUTINY OR REFUSAL OF DUTY IN THE
MILITARY OR NAVAL FORCES OF THE UNITED STATES OR WILFULLY TO OBSTRUCT
OR ATTEMPT TO OBSTRUCT THE RECRUITING OR ENLISTMENT SERVICE OF THE
UNITED STATES OR TO CONSPIRE FOR THESE PURPOSES.  WE SUSTAINED THE
POWER OF THE GOVERNMENT OR A STATE TO PROTECT THE WAR OPERATIONS OF THE
UNITED STATES BY PUNISHING INTENTIONAL INTERFERENCE WITH THEM.  WE
RECOGNIZED, HOWEVER, THAT WORDS MAY BE SPOKEN OR WRITTEN FOR VARIOUS
PURPOSES AND THAT WILFUL AND INTENTIONAL INTERFERENCE WITH THE
DESCRIBED OPERATIONS OF THE GOVERNMENT MIGHT BE INFERRED FROM THE TIME,
PLACE, AND CIRCUMSTANCES OF THE ACT.  "THE QUESTION IN EVERY CASE IS
WHETHER THE WORDS USED ARE USED IN SUCH CIRCUMSTANCES AND ARE OF SUCH A
NATURE AS TO CREATE A CLEAR AND PRESENT DANGER THAT THEY WILL BRING
ABOUT THE SUBSTANTIVE EVILS THAT CONGRESS HAS A RIGHT TO PREVENT.  IT
IS A QUESTION OF PROXIMITY AND DEGREE."  FN10 

THE LEGISLATION UNDER REVIEW DIFFERS RADICALLY FROM THE ESPIONAGE
ACTS IN THAT IT DOES NOT DEAL WITH A WILFUL ATTEMPT TO OBSTRUCT A
DESCRIBED AND DEFINED ACTIVITY OF THE GOVERNMENT. 

THE STATE, ON THE OTHER HAND, INSISTS THAT OUR DECISIONS UPHOLD STATE
STATUTES MAKING CRIMINAL UTTERANCES WHICH HAVE A "DANGEROUS TENDENCY"
TOWARDS THE SUBVERSION OF GOVERNMENT.  IT RELIES PARTICULARLY UPON
GITLOW V. NEW YORK, 268 U.S. 652.  THERE, HOWEVER, WE DEALT WITH A
STATUTE WHICH, QUITE UNLIKE SEC. 56 OF THE GEORGIA CRIMINAL CODE,
DENOUNCED AS CRIMINAL CERTAIN ACTS CAREFULLY AND ADEQUATELY DESCRIBED. 
WE SAID: 

"AND A STATE MAY PENALIZE UTTERANCES WHICH OPENLY ADVOCATE THE
OVERTHROW OF THE REPRESENTATIVE AND CONSTITUTIONAL FORM OF GOVERNMENT
OF THE UNITED STATES AND THE SEVERAL STATES, BY VIOLENCE OR OTHER
UNLAWFUL MEANS."  (P. 668.) 

"BY ENACTING THE PRESENT STATUTE THE STATE HAS DETERMINED, THROUGH
ITS LEGISLATIVE BODY, THAT UTTERANCES ADVOCATING THE OVERTHROW OF
ORGANIZED GOVERNMENT BY FORCE, VIOLENCE AND UNLAWFUL MEANS, ARE SO
INIMICAL TO THE GENERAL WELFARE AND INVOLVE SUCH DANGER OF SUBSTANTIVE
EVIL THAT THEY MAY BE PENALIZED IN THE EXERCISE OF ITS POLICE POWER. 
THAT DETERMINATION MUST BE GIVEN GREAT WEIGHT.  EVERY PRESUMPTION IS TO
BE INDULGED IN FAVOR OF THE VALIDITY OF THE STATUTE.  MUGLER V. KANSAS,
123 U.S. 623, 661.  AND THE CASE IS TO BE CONSIDERED 'IN THE LIGHT OF
THE PRINCIPLE THAT THE STATE IS PRIMARILY THE JUDGE OF REGULATIONS
REQUIRED IN THE INTEREST OF PUBLIC SAFETY AND WELFARE;' AND THAT ITS
POLICE 'STATUTES MAY ONLY BE DECLARED UNCONSTITUTIONAL WHERE THEY ARE
ARBITRARY OR UNREASONABLE ATTEMPTS TO EXERCISE AUTHORITY VESTED IN THE
STATE IN THE PUBLIC INTEREST.'"  (P. 668.)  AND IT WAS IN CONNECTION
WITH THE STATUTE THERE INVOLVED THAT THE COURT QUOTED LANGUAGE RELIED
UPON BELOW AND IN ARGUMENT HERE FROM PEOPLE V. LLOYD, 304 ILL. 23; 136
N.E. 505, TO THE EFFECT THAT A STATE IS NOT COMPELLED TO DELAY ADOPTION
OF SUCH PREVENTIVE MEASURES UNTIL THE APPREHENDED DANGER BECOMES
CERTAIN.  OUT OF EXCESS OF CAUTION THE DISTINCTION WAS AGAIN CLEARLY
DRAWN BETWEEN ACTS OF THE ORDER OF THE ESPIONAGE ACT AND THE NEW YORK
ACT UNDER REVIEW. 

"...  WHEN THE LEGISLATIVE BODY HAS DETERMINED GENERALLY, IN THE
CONSTITUTIONAL EXERCISE OF ITS DISCRETION, THAT UTTERANCES OF A CERTAIN
KIND INVOLVE SUCH DANGER OF SUBSTANTIVE EVIL THAT THEY MAY BE PUNISHED,
THE QUESTION WHETHER ANY SPECIFIC UTTERANCE COMING WITHIN THE
PROHIBITED CLASS IS LIKELY, IN AND OF ITSELF, TO BRING ABOUT THE
SUBSTANTIVE EVIL, IS NOT OPEN TO CONSIDERATION.  IT IS SUFFICIENT THAT
THE STATUTE ITSELF BE CONSTITUTIONAL AND THAT THE USE OF THE LANGUAGE
COMES WITHIN ITS PROHIBITION. 

"IT IS CLEAR THAT THE QUESTION IN SUCH CASES IS ENTIRELY DIFFERENT
FROM THAT INVOLVED IN THOSE CASES WHERE THE STATUTE MERELY PROHIBITS
CERTAIN ACTS INVOLVING THE DANGER OF SUBSTANTIVE EVIL, WITHOUT ANY
REFERENCE TO LANGUAGE ITSELF, AND IT IS SOUGHT TO APPLY ITS PROVISIONS
TO LANGUAGE USED BY THE DEFENDANT FOR THE PURPOSE OF BRINGING ABOUT THE
PROHIBITED RESULTS.  THERE, IF IT BE CONTENDED THAT THE STATUTE CANNOT
BE APPLIED TO THE LANGUAGE USED BY THE DEFENDANT BECAUSE OF ITS
PROTECTION BY THE FREEDOM OF SPEECH OR PRESS, IT MUST NECESSARILY BE
FOUND, AS AN ORIGINAL QUESTION, WITHOUT ANY PREVIOUS DETERMINATION BY
THE LEGISLATIVE BODY, WHETHER THE SPECIFIC LANGUAGE USED INVOLVED SUCH
LIKELIHOOD OF BRINGING ABOUT THE SUBSTANTIVE EVIL AS TO DEPRIVE IT OF
THE CONSTITUTIONAL PROTECTION."  (PP. 670-671.) 

IT IS EVIDENT THAT THE DECISION SUSTAINING THE NEW YORK STATUTE
FURNISHES NO WARRANT FOR THE APPELLEE'S CONTENTION THAT UNDER A LAW
GENERAL IN ITS DESCRIPTION OF THE MISCHIEF TO BE REMEDIED AND EQUALLY
GENERAL IN RESPECT OF THE INTENT OF THE ACTOR, THE STANDARD OF GUILT
MAY BE MADE THE "DANGEROUS TENDENCY" OF HIS WORDS.    THE POWER OF A
STATE TO ABRIDGE FREEDOM OF SPEECH AND OF ASSEMBLY IS THE EXCEPTION
RATHER THAN THE RULE AND THE PENALIZING EVEN OF UTTERANCES OF A DEFINED
CHARACTER MUST FIND ITS JUSTIFICATION IN A REASONABLE APPREHENSION OF
DANGER TO ORGANIZED GOVERNMENT.  THE JUDGMENT OF THE LEGISLATURE IS NOT
UNFETTERED.  THE LIMITATION UPON INDIVIDUAL LIBERTY MUST HAVE
APPROPRIATE RELATION TO THE SAFETY OF THE STATE.  LEGISLATION WHICH
GOES BEYOND THIS NEED VIOLATES THE PRINCIPLE OF THE CONSTITUTION.  IF,
THEREFORE, A STATE STATUTE PENALIZE INNOCENT PARTICIPATION IN A MEETING
HELD WITH AN INNOCENT PURPOSE MERELY BECAUSE THE MEETING WAS HELD UNDER
THE AUSPICES OF AN ORGANIZATION MEMBERSHIP IN WHICH, OR THE ADVOCACY OF
WHOSE PRINCIPLES, IS ALSO DENOUNCED AS CRIMINAL, THE LAW, SO CONSTRUED
AND APPLIED, GOES BEYOND THE POWER TO RESTRICT ABUSES OF FREEDOM OF
SPEECH AND ARBITRARILY DENIES THAT FREEDOM.  FN11  AND, WHERE A STATUTE
IS SO VAGUE AND UNCERTAIN AS TO MAKE CRIMINAL AN UTTERANCE OR AN ACT
WHICH MAY BE INNOCENTLY SAID OR DONE WITH NO INTENT TO INDUCE RESORT TO
VIOLENCE OR ON THE OTHER HAND MAY BE SAID OR DONE WITH A PURPOSE
VIOLENTLY TO SUBVERT GOVERNMENT, A CONVICTION UNDER SUCH A LAW CANNOT
BE SUSTAINED.  UPON THIS VIEW WE HELD BAD A STATUTE OF CALIFORNIA
PROVIDING THAT "ANY PERSON WHO DISPLAYS A RED FLAG,  ...  IN ANY PUBLIC
PLACE OR IN ANY MEETING PLACE OR PUBLIC ASSEMBLY, OR FROM OR ON ANY
HOUSE, BUILDING OR WINDOW AS A SIGN, SYMBOL OR EMBLEM OF OPPOSITION TO
ORGANIZED GOVERNMENT  ...  IS GUILTY OF A FELONY."  FN12 

AFTER POINTING OUT THAT PEACEFUL AGITATION FOR A CHANGE OF OUR FORM
OF GOVERNMENT IS WITHIN THE GUARANTEED LIBERTY OF SPEECH, WE SAID OF
THE ACT IN QUESTION:  "A STATUTE WHICH UPON ITS FACE, AND AS
AUTHORITATIVELY CONSTRUED, IS SO VAGUE AND INDEFINITE AS TO PERMIT THE
PUNISHMENT OF THE FAIR USE OF THIS OPPORTUNITY IS REPUGNANT TO THE
GUARANTY OF LIBERTY CONTAINED IN THE FOURTEENTH AMENDMENT."  (P. 369.) 

1.  THE APPELLANT HAD A CONSTITUTIONAL RIGHT TO ADDRESS MEETINGS AND
ORGANIZE PARTIES UNLESS IN SO DOING HE VIOLATED SOME PROHIBITION OF A
VALID STATUTE.  THE ONLY PROHIBITION HE IS SAID TO HAVE VIOLATED IS
THAT OF SEC. 56 FORBIDDING INCITEMENT OR ATTEMPTED INCITEMENT TO
INSURRECTION BY VIOLENCE.  IF THE EVIDENCE FAILS TO SHOW THAT HE DID SO
INCITE, THEN, AS APPLIED TO HIM, THE STATUTE UNREASONABLY LIMITS
FREEDOM OF SPEECH AND FREEDOM OF ASSEMBLY AND VIOLATES THE FOURTEENTH
AMENDMENT.  WE ARE OF OPINION THAT THE REQUISITE PROOF IS LACKING. 
FROM WHAT HAS BEEN SAID ABOVE WITH RESPECT TO THE EVIDENCE OFFERED AT
THE TRIAL IT IS APPARENT THAT THE DOCUMENTS FOUND UPON THE APPELLANT'S
PERSON WERE CERTAINLY, AS TO SOME OF THE AIMS STATED THEREIN, INNOCENT
AND CONSISTENT WITH PEACEFUL ACTION FOR A CHANGE IN THE LAWS OR THE
CONSTITUTION.  THE PROOF WHOLLY FAILS TO SHOW THAT THE APPELLANT HAD
READ THESE DOCUMENTS; THAT HE HAD DISTRIBUTED ANY OF THEM; THAT HE
BELIEVED AND ADVOCATED ANY OR ALL OF THE PRINCIPLES AND AIMS SET FORTH
IN THEM, OR THAT THOSE HE HAD PROCURED TO BECOME MEMBERS OF THE PARTY
KNEW OR APPROVED OF ANY OF THESE DOCUMENTS. 

THUS, THE CRUCIAL QUESTION IS NOT THE FORMAL INTERPRETATION OF THE
STATUTE BY THE SUPREME COURT OF GEORGIA BUT THE APPLICATION GIVEN IT.
IN ITS APPLICATION THE OFFENSE MADE CRIMINAL IS THAT OF SOLICITING
MEMBERS FOR A POLITICAL PARTY AND CONDUCTING MEETINGS OF A LOCAL UNIT
OF THAT PARTY WHEN ONE OF THE DOCTRINES OF THE PARTY, ESTABLISHED BY
REFERENCE TO A DOCUMENT NOT SHOWN TO HAVE BEEN EXHIBITED TO ANYONE BY
THE ACCUSED, MAY BE SAID TO BE ULTIMATE RESORT TO VIOLENCE AT SOME
INDEFINITE FUTURE TIME AGAINST ORGANIZED GOVERNMENT.  IT IS TO BE BORNE
IN MIND THAT THE LEGISLATURE OF GEORGIA HAS NOT MADE MEMBERSHIP IN THE
COMMUNIST PARTY UNLAWFUL BY REASON OF ITS SUPPOSED DANGEROUS TENDENCY
EVEN IN THE REMOTE FUTURE.  THE QUESTION IS NOT WHETHER GEORGIA MIGHT,
IN ANALOGY TO WHAT OTHER STATES HAVE DONE, SO DECLARE.  FN13  THE
APPELLANT INDUCED OTHERS TO BECOME MEMBERS OF THE COMMUNIST PARTY.  DID
HE THUS INCITE TO INSURRECTION BY REASON OF THE FACT THAT THEY AGREED
TO ABIDE BY THE TENETS OF THE PARTY, SOME OF THEM LAWFUL, OTHERS, AS
MAY BE ASSUMED, UNLAWFUL, IN THE ABSENCE OF PROOF THAT HE BROUGHT THE
UNLAWFUL AIMS TO THEIR NOTICE, THAT HE APPROVED THEM, OR THAT THE
FANTASTIC PROGRAM THEY ENVISAGED WAS CONCEIVED OF BY ANYONE AS MORE
THAN AN ULTIMATE IDEAL?  DOUBTLESS CIRCUMSTANTIAL EVIDENCE MIGHT AFFECT
THE ANSWER TO THE QUESTION IF APPELLANT HAD BEEN SHOWN TO HAVE SAID
THAT THE BLACK BELT SHOULD BE ORGANIZED AT ONCE AS A SEPARATE STATE AND
THAT THAT OBJECTIVE WAS ONE OF HIS PRINCIPAL AIMS.  BUT HERE
CIRCUMSTANTIAL EVIDENCE IS ALL TO THE OPPOSITE EFFECT.  THE ONLY
OBJECTIVES APPELLANT IS PROVED TO HAVE URGED ARE THOSE HAVING TO DO
WITH UNEMPLOYMENT AND EMERGENCY RELIEF WHICH ARE VOID OF CRIMINALITY. 
HIS MEMBERSHIP IN THE COMMUNIST PARTY AND HIS SOLICITATION OF A FEW
MEMBERS WHOLLY FAILS TO ESTABLISH AN ATTEMPT TO INCITE OTHERS TO
INSURRECTION.  INDEED, SO FAR AS APPEARS, HE HAD BUT A SINGLE COPY OF
THE BOOKLET THE STATE CLAIMS TO BE OBJECTIONABLE; THAT COPY HE
RETAINED.  THE SAME MAY BE SAID WITH RESPECT TO THE OTHER BOOKS AND
PAMPHLETS, SOME OF THEM OF MORE INNOCENT PURPORT.  IN THESE
CIRCUMSTANCES, TO MAKE MEMBERSHIP IN THE PARTY AND SOLICITATION OF
MEMBERS FOR THAT PARTY A CRIMINAL OFFENSE, PUNISHABLE BY DEATH, IN THE
DISCRETION OF A JURY, IS AN UNWARRANTED INVASION OF THE RIGHT OF
FREEDOM OF SPEECH. 

2.  THE STATUTE, AS CONSTRUED AND APPLIED IN THE APPELLANT'S TRIAL,
DOES NOT FURNISH A SUFFICIENTLY ASCERTAINABLE STANDARD OF GUILT.  THE
ACT DOES NOT PROHIBIT INCITEMENT TO VIOLENT INTERFERENCE WITH ANY GIVEN
ACTIVITY OR OPERATION OF THE STATE.  BY FORCE OF IT, AS CONSTRUED, THE
JUDGE AND JURY TRYING AN ALLEGED OFFENDER CANNOT APPRAISE THE
CIRCUMSTANCES AND CHARACTER OF THE DEFENDANT'S UTTERANCES OR ACTIVITIES
AS BEGETTING A CLEAR AND PRESENT DANGER OF FORCIBLE OBSTRUCTION OF A
PARTICULAR STATE FUNCTION.  NOR IS ANY SPECIFIED CONDUCT OR UTTERANCE
OF THE ACCUSED MADE AN OFFENSE. 

THE TEST OF GUILT IS THUS FORMULATED BY THE SUPREME COURT OF THE
STATE.  FORCIBLE ACTION MUST HAVE BEEN CONTEMPLATED BUT IT WOULD BE
SUFFICIENT TO SUSTAIN A CONVICTION IF THE ACCUSED INTENDED THAT AN
INSURRECTION "SHOULD HAPPEN AT ANY TIME WITHIN WHICH HE MIGHT
REASONABLY EXPECT HIS INFLUENCE TO CONTINUE TO BE DIRECTLY OPERATIVE IN
CAUSING SUCH ACTION BY THOSE WHOM HE SOUGHT TO INDUCE."  IF THE JURY
CONCLUDE THAT THE DEFENDANT SHOULD HAVE CONTEMPLATED THAT ANY ACT OR
UTTERANCE OF HIS IN OPPOSITION TO THE ESTABLISHED ORDER OR ADVOCATING A
CHANGE IN THAT ORDER, MIGHT, IN THE DISTANT FUTURE, EVENTUATE IN A
COMBINATION TO OFFER FORCIBLE RESISTANCE TO THE STATE, OR AS THE STATE
SAYS, IF THE JURY BELIEVE HE SHOULD HAVE KNOWN THAT HIS WORDS WOULD
HAVE "A DANGEROUS TENDENCY" THEN HE MAY BE CONVICTED.  TO BE GUILTY
UNDER THE LAW, AS CONSTRUED, A DEFENDANT NEED NOT ADVOCATE RESORT TO
FORCE.  HE NEED NOT TEACH ANY PARTICULAR DOCTRINE TO COME WITHIN ITS
PURVIEW.  INDEED, HE NEED NOT BE ACTIVE IN THE FORMATION OF A
COMBINATION OR GROUP IF HE AGITATE FOR A CHANGE IN THE FRAME OF
GOVERNMENT, HOWEVER PEACEFUL HIS OWN INTENT.  IF, BY THE EXERCISE OF
PROPHESY, HE CAN FORECAST THAT, AS A RESULT OF A CHAIN OF CAUSATION,
FOLLOWING HIS PROPOSED ACTION A GROUP MAY ARISE AT SOME FUTURE DATE
WHICH WILL RESORT TO FORCE, HE IS BOUND TO MAKE THE PROPHESY AND
ABSTAIN, UNDER PAIN OF PUNISHMENT, POSSIBLY OF EXECUTION.  EVERY PERSON
WHO ATTACKS EXISTING CONDITIONS, WHO AGITATES FOR A CHANGE IN THE FORM
OF GOVERNMENT, MUST TAKE THE RISK THAT IF A JURY SHOULD BE OF OPINION
HE OUGHT TO HAVE FORESEEN THAT HIS UTTERANCES MIGHT CONTRIBUTE IN ANY
MEASURE TO SOME FUTURE FORCIBLE RESISTANCE TO THE EXISTING GOVERNMENT
HE MAY BE CONVICTED OF THE OFFENSE OF INCITING INSURRECTION.  PROOF
THAT THE ACCUSED IN FACT BELIEVED THAT HIS EFFORT WOULD CAUSE A VIOLENT
ASSAULT UPON THE STATE WOULD NOT BE NECESSARY TO CONVICTION.  IT WOULD
BE SUFFICIENT IF THE JURY THOUGHT HE REASONABLY MIGHT FORETELL THAT
THOSE HE PERSUADED TO JOIN THE PARTY MIGHT, AT SOME TIME IN THE
INDEFINITE FUTURE, RESORT TO FORCIBLE RESISTANCE OF GOVERNMENT.  THE
QUESTION THUS PROPOSED TO A JURY INVOLVES PURE SPECULATION AS TO FUTURE
TRENDS OF THOUGHT AND ACTION.  WITHIN WHAT TIME MIGHT ONE REASONABLY
EXPECT THAT AN ATTEMPTED ORGANIZATION OF THE COMMUNIST PARTY IN THE
UNITED STATES WOULD RESULT IN VIOLENT ACTION BY THAT PARTY?  IF A JURY
RETURNED A SPECIAL VERDICT SAYING TWENTY YEARS OR EVEN FIFTY YEARS THE
VERDICT COULD NOT BE SHOWN TO BE WRONG.  THE LAW, AS THUS CONSTRUED,
LICENSES THE JURY TO CREATE ITS OWN STANDARD IN EACH CASE.  IN THIS
ASPECT WHAT WAS SAID IN UNITED STATES V. COHEN GROCERY CO., 255 U.S.
81, IS PARTICULARLY APPOSITE: 

"OBSERVE THAT THE SECTION FORBIDS NO SPECIFIC OR DEFINITE ACT.  IT
CONFINES THE SUBJECT-MATTER OF THE INVESTIGATION WHICH IT AUTHORIZES TO
NO ELEMENT ESSENTIALLY INHERING IN THE TRANSACTION AS TO WHICH IT
PROVIDES.  IT LEAVES OPEN, THEREFORE, THE WIDEST CONCEIVABLE INQUIRY,
THE SCOPE OF WHICH NO ONE CAN FORESEE AND THE RESULT OF WHICH NO ONE
CAN FORESHADOW OR ADEQUATELY GUARD AGAINST.  IN FACT, WE SEE NO REASON
TO DOUBT THE SOUNDNESS OF THE OBSERVATION OF THE COURT BELOW, IN ITS
OPINION, TO THE EFFECT THAT, TO ATTEMPT TO ENFORCE THE SECTION WOULD BE
THE EXACT EQUIVALENT OF AN EFFORT TO CARRY OUT A STATUTE WHICH IN TERMS
MERELY PENALIZED AND PUNISHED ALL ACTS DETRIMENTAL TO THE PUBLIC
INTEREST WHEN UNJUST AND UNREASONABLE IN THE ESTIMATION OF THE COURT
AND JURY  ..."  (P. 89.) 

THE DECISIONS RELIED ON BY THE STATE HELD THE SHERMAN LAW FURNISHED A
REASONABLE STANDARD OF GUILT BECAUSE IT MADE A STANDARD LONG RECOGNIZED
BY THE COMMON LAW THE STATUTORY TEST.  FN14 

THE STATUTE, AS CONSTRUED AND APPLIED, AMOUNTS MERELY TO A DRAGNET
WHICH MAY ENMESH ANYONE WHO AGITATES FOR A CHANGE OF GOVERNMENT IF A
JURY CAN BE PERSUADED THAT HE OUGHT TO HAVE FORESEEN HIS WORDS WOULD
HAVE SOME EFFECT IN THE FUTURE CONDUCT OF OTHERS.  NO REASONABLY
ASCERTAINABLE STANDARD OF GUILT IS PRESCRIBED.  SO VAGUE AND
INDETERMINATE ARE THE BOUNDARIES THUS SET TO THE FREEDOM OF SPEECH AND
ASSEMBLY THAT THE LAW NECESSARILY VIOLATES THE GUARANTEES OF LIBERTY
EMBODIED IN THE FOURTEENTH AMENDMENT. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  182 GA. 582; 186 S.E. 429. 

FN2  "55.  INSURRECTION SHALL CONSIST IN ANY COMBINED RESISTANCE TO
THE LAWFUL AUTHORITY OF THE STATE, WITH INTENT TO THE DENIAL THEREOF,
WHEN THE SAME IS MANIFESTED OR INTENDED TO BE MANIFESTED BY ACTS OF
VIOLENCE. 

"56.  ANY ATTEMPT, BY PERSUASION OR OTHERWISE, TO INDUCE OTHERS TO
JOIN IN ANY COMBINED RESISTANCE TO THE LAWFUL AUTHORITY OF THE STATE
SHALL CONSTITUTE AN ATTEMPT TO INCITE INSURRECTION. 

"57.  ANY PERSON CONVICTED OF THE OFFENSE OF INSURRECTION, OR AN
ATTEMPT TO INCITE INSURRECTION, SHALL BE PUNISHED WITH DEATH; OR, IF
THE JURY RECOMMEND TO MERCY, CONFINEMENT IN THE PENITENTIARY FOR NOT
LESS THAN FIVE NOR MORE THAN 20 YEARS. 

"58.  IF ANY PERSON SHALL BRING, INTRODUCE, PRINT, OR CIRCULATE, OR
CAUSE TO BE INTRODUCED, CIRCULATED, OR PRINTED, OR AID OR ASSIST, OR BE
IN ANY MANNER INSTRUMENTAL IN BRINGING, INTRODUCING, CIRCULATING, OR
PRINTING WITHIN THIS STATE ANY PAPER, PAMPHLET, CIRCULAR, OR ANY
WRITING, FOR THE PURPOSE OF INCITING INSURRECTION, RIOT, CONSPIRACY, OR
RESISTANCE AGAINST THE LAWFUL AUTHORITY OF THE STATE, OR AGAINST THE
LIVES OF THE INHABITANTS THEREOF, OR ANY PART OF THEM, HE SHALL BE
PUNISHED BY CONFINEMENT IN THE PENITENTIARY FOR NOT LESS THAN FIVE NOR
LONGER THAN 20 YEARS."  (GEORGIA CODE, 1933, SECS. 26-901 TO 26-904,
INCLUSIVE.) 

FN3  HERNDON V. STATE, 178 GA. 832; 174 S.E. 597. 

FN4  HERNDON V. STATE, 179 GA. 597; 176 S.E. 620. 

FN5  HERNDON V. GEORGIA, 295 U.S. 441. 

FN6  NOTE 2, SUPRA. 

FN7  178 GA. 855, 174 S.E. 597. 

FN8  179 GA. 600, 176 S.E. 622. 

FN9  ACT OF JUNE 15, 1917, C. 30, 40 STAT. 217, 219; AMENDED BY ACT
OF MAY 16, 1918, C. 75, 40 STAT. 553. 

FN10  SEE SCHENCK V. UNITED STATES, 249 U.S. 47, 52; FROHWERK V.
UNITED STATES, 249 U.S. 204; DEBS V. UNITED STATES, 249 U.S. 211;
ABRAMS V. UNITED STATES, 250 U.S. 616; SCHAEFER V. UNITED STATES, 251
U.S. 466; PIERCE V. UNITED STATES, 252 U.S. 239; O'CONNELL V. UNITED
STATES, 253 U.S. 142; STATE V. HOLM, 139 MINN. 267; 166 N.W. 181;
GILBERT V. MINNESOTA, 254 U.S. 325. 

FN11  DEJONGE V. OREGON, 299 U.S. 353. 

FN12  STROMBERG V. CALIFORNIA, 283 U.S. 359. 

FN13  SEE THE STATUTES DRAWN IN QUESTION IN GITLOW V. NEW YORK, 268
U.S. 652, AT 654, AND IN WHITNEY V. CALIFORNIA, 274 U.S. 357, 359. 

FN14  WATERS-PIERCE OIL CO. V. TEXAS, 212 U.S. 86; NASH V. UNITED
STATES, 229 U.S. 373. 

MR. JUSTICE VAN DEVANTER, DISSENTING. 

I AM OF OPINION THAT THE GEORGIA STATUTE, AS CONSTRUED AND APPLIED BY
THE SUPREME COURT OF THE STATE IN HERNDON'S CASE, PRESCRIBES A
REASONABLY DEFINITE AND ASCERTAINABLE STANDARD BY WHICH TO DETERMINE
THE GUILT OR INNOCENCE OF THE ACCUSED, AND DOES NOT ENCROACH ON HIS
RIGHT OF FREEDOM OF SPEECH OR OF ASSEMBLY.    IT PLAINLY APPEARS, I
THINK, THAT THE OFFENSE DEFINED IN THE STATUTE, AND OF WHICH HERNDON
WAS CONVICTED, WAS NOT THAT OF ADVOCATING A CHANGE IN THE STATE
GOVERNMENT BY LAWFUL MEANS, SUCH AS AN ORDERLY EXERTION OF THE ELECTIVE
FRANCHISE OR OF THE POWER TO AMEND THE STATE CONSTITUTION, BUT WAS THAT
OF ATTEMPTING TO INDUCE AND INCITE OTHERS TO JOIN IN COMBINED FORCIBLE
RESISTANCE TO THE LAWFUL AUTHORITY OF THE STATE. 

INSURRECTION, ATTEMPTS TO INCITE INSURRECTION, AND THE PUNISHMENT
THEREFOR, AND ARE SO CLOSELY RELATED THAT ALL EVIDENTLY HAVE A BEARING
ON THE SCOPE AND MEANING OF ANY ONE OF THEM.  SECTION 55 DENOUNCES
INSURRECTION AND DEFINES IT AS "ANY COMBINED RESISTANCE TO THE LAWFUL
AUTHORITY OF THE STATE, WITH INTENT TO THE DENIAL THEREOF, WHEN THE
SAME IS MANIFESTED OR INTENDED TO BE MANIFESTED BY ACTS OF VIOLENCE." 
AS "ANY ATTEMPT, BY PERSUASION OR OTHERWISE, TO INDUCE OTHERS TO JOIN
IN ANY COMBINED RESISTANCE TO THE LAWFUL AUTHORITY OF THE STATE." 

WHILE SEC. 56 DOES NOT IN DIRECT TERMS INCLUDE FORCE OR VIOLENCE AS A
FEATURE OF THE "COMBINED RESISTANCE TO THE LAWFUL AUTHORITY OF THE
STATE" THE ATTEMPT TO INDUCE WHICH IT DENOUNCES, THE SUPREME COURT OF
THE STATE HAS CONSTRUED THE SECTION, DOUBTLESS BY REASON OF ITS
RELATION TO THE OTHERS, AS MAKING INTENDED RESORT TO FORCE OR VIOLENCE
AN ESSENTIAL ELEMENT OF SUCH "COMBINED RESISTANCE."  FN2  THEREFORE THE
WAS UNDER SEC. 56 THAT HERNDON WAS INDICTED, TRIED AND CONVICTED. 

BY THE INDICTMENT HE WAS CHARGED WITH ATTEMPTING TO INDUCE OTHERS TO
JOIN IN COMBINED RESISTANCE TO THE LAWFUL AUTHORITY OF THE STATE "BY
OPEN FORCE AND BY VIOLENT MEANS, AND BY UNLAWFUL ACTS," THE MODES OF
ATTEMPTED INDUCEMENT BEING SPECIFIED.  UPON THE TRIAL THE COURT
INSTRUCTED THE JURY THAT NEITHER "POSSESSION OF LITERATURE
INSURRECTIONARY IN ITS NATURE" NOR "ENGAGING IN ACADEMIC OR
PHILOSOPHICAL DISCUSSION OF ABSTRACT PRINCIPLES OF ECONOMICS OR
POLITICAL OR OTHER SUBJECTS, HOWEVER RADICAL OR REVOLUTIONARY IN THEIR
NATURE," WOULD WARRANT A CONVICTION; AND THAT A VERDICT OF GUILT COULD
NOT BE GIVEN UNLESS IT CLEARLY APPEARED FROM THE EVIDENCE THAT
"IMMEDIATE SERIOUS VIOLENCE AGAINST THE STATE" WAS EXPECTED OR
ADVOCATED BY THE ACCUSED. 

IN AFFIRMING THE CONVICTION THE SUPREME COURT OF THE STATE HELD THAT
UNDER THE STATUTE "FORCE MUST HAVE BEEN CONTEMPLATED," BUT THAT IT IS
NOT NECESSARY TO GUILT THAT THE ACCUSED "SHOULD HAVE INTENDED THAT AN
INSURRECTION SHOULD FOLLOW INSTANTLY OR AT ANY GIVEN TIME, BUT IT WOULD
BE SUFFICIENT THAT HE INTENDED IT TO HAPPEN AT ANY TIME, AS A RESULT"
OF HIS PERSUASION - THE INTENT OF THE STATUTE BEING "TO ARREST AT ITS
INCIPIENCY ANY EFFORT TO OVERTHROW THE STATE GOVERNMENT, WHERE IT TAKES
THE FORM OF AN ACTUAL ATTEMPT TO INCITE OTHERS TO INSURRECTION." 

THEN, COMING TO CONSIDER THE SUFFICIENCY OF THE EVIDENCE, THE SUPREME
COURT STATED:  "FROM WHAT HAS BEEN SAID, THE QUESTION HERE IS SIMPLY
THIS:  DID THE EVIDENCE SHOW THAT THE DEFENDANT MADE ANY ATTEMPT TO
INDUCE OTHERS TO COME TOGETHER IN ANY COMBINED FORCIBLE RESISTANCE TO
THE LAWFUL AUTHORITY OF THE STATE?"  AND THE COURT CONCLUDED ITS
CONSIDERATION OF THIS QUESTION BY SAYING, "THE JURY WERE AMPLY
AUTHORIZED TO INFER THAT VIOLENCE WAS INTENDED AND THAT THE DEFENDANT
DID ATTEMPT TO INDUCE OTHERS TO COMBINE IN SUCH RESISTANCE TO THE
LAWFUL AUTHORITY OF THE STATE."  FN3 

THE ACCUSED SOUGHT A REHEARING, LARGELY BECAUSE OF HIS UNDERSTANDING
OF WHAT WAS SAID IN THE COURT'S OPINION RESPECTING THE EXPECTED TIME OF
THE INTENDED RESORT TO FORCE.  A REHEARING WAS DENIED, AND IN THAT
CONNECTION THE COURT SAID:  FN4 

"THE LANGUAGE USED BY THIS COURT SHOULD BE CONSIDERED WITH THE USUAL
REASONABLE IMPLICATIONS.  THE PHRASE 'AT ANY TIME,' AS CRITICIZED IN
THE MOTION FOR REHEARING, WAS NOT INTENDED TO MEAN AT ANY TIME IN THE
INDEFINITE FUTURE, OR AT ANY POSSIBLE LATER TIME, HOWEVER REMOTE.  AN
ACTIVITY NOW COULD HARDLY BE EXPECTED TO BE THE DIRECT PRODUCING CAUSE
OF AN INSURRECTION AFTER THE LAPSE OF A GREAT PERIOD OF TIME, AND IT
WAS NOT THE PURPOSE OF THIS COURT TO SUGGEST THAT AS TO THE MENTAL
REQUISITE ANY SUCH INTENT WOULD BE A SUFFICIENT INGREDIENT OF AN
ATTEMPT TO INCITE AN INSURRECTION.  ON THE CONTRARY THE PHRASE 'AT ANY
TIME' WAS NECESSARILY INTENDED, AND SHOULD HAVE BEEN UNDERSTOOD, TO
MEAN WITHIN A REASONABLE TIME; THAT IS, WITHIN SUCH TIME AS ONE'S
PERSUASION OR OTHER ADOPTED MEANS MIGHT REASONABLY BE EXPECTED TO BE
DIRECTLY OPERATIVE IN CAUSING AN INSURRECTION.  ACCORDINGLY, THE
STATEMENTS BY THIS COURT AS QUOTED IN THE MOTION FOR REHEARING ARE TO
BE ACCEPTED IN THE FOLLOWING SENSE:  FORCE MUST HAVE BEEN CONTEMPLATED,
BUT THE STATUTE DOES NOT INCLUDE EITHER ITS OCCURRENCE OR ITS IMMINENCE
AS AN INGREDIENT OF THE PARTICULAR OFFENSE CHARGED.  NOR WOULD IT BE
NECESSARY TO GUILT THAT THE ALLEGED OFFENDER SHOULD HAVE INTENDED THAT
AN INSURRECTION SHOULD FOLLOW INSTANTLY OR AT ANY GIVEN TIME, BUT AS TO
THIS ELEMENT IT WOULD BE SUFFICIENT IF HE INTENDED THAT IT SHOULD
HAPPEN AT ANY TIME WITHIN WHICH HE MIGHT REASONABLY EXPECT HIS
INFLUENCE TO CONTINUE TO BE DIRECTLY OPERATIVE IN CAUSING SUCH ACTION
BY THOSE WHOM HE SOUGHT TO INDUCE.  THIS STATEMENT, CONSIDERED WITH
WHAT WAS SAID IN THE ORIGINAL DECISION, REPRESENTS THE VIEW OF THIS
COURT AS TO THE PROPER CONSTRUCTION OF THE STATUTE UNDER CONSIDERATION;
AND UNDER THE STATUTE AS THUS INTERPRETED, WE SAY, AS BEFORE, THAT THE
EVIDENCE WAS SUFFICIENT TO AUTHORIZE THE CONVICTION.  IN VIEW OF WHAT
HAS BEEN SAID ABOVE, IT WOULD SEEM THAT ALL CONTENTIONS MADE IN THE
MOTION FOR REHEARING SHOULD NECESSARILY FAIL, BASED, AS THEY ARE, UPON
AN ERRONEOUS CONSTRUCTION OF OUR DECISION." 

IT THUS IS MADE QUITE PLAIN THAT THE CASE PROCEEDED FROM BEGINNING TO
END, AND IN BOTH STATE COURTS, UPON THE THEORY THAT THE OFFENSE
DENOUNCED BY THE STATUTE AND CHARGED IN THE INDICTMENT WAS THAT OF
ATTEMPTING TO INDUCE AND INCITE OTHERS TO JOIN IN COMBINED FORCIBLE
RESISTANCE TO THE LAWFUL AUTHORITY OF THE STATE; THAT THE JURY RETURNED
A VERDICT OF GUILTY UPON THAT THEORY; AND THAT IT WAS UPON THE SAME
THEORY THAT THE SUPREME COURT HELD THE JURY'S VERDICT WAS SUPPORTED BY
THE EVIDENCE, AND AFFIRMED THE CONVICTION. 

THE PRESENT APPEAL IS NOT FROM THAT JUDGMENT OF AFFIRMANCE BUT FROM A
JUDGMENT DENYING A SUBSEQUENT PETITION FOR HABEAS CORPUS.  FN5 

IF IT BE ASSUMED THAT ON THIS APPEAL THE EVIDENCE PRODUCED ON THE
TRIAL IN THE CRIMINAL CASE MAY BE EXAMINED TO ASCERTAIN HOW THE STATUTE
WAS APPLIED, I AM OF OPINION, AFTER SUCH AN EXAMINATION, THAT THE
STATUTE WAS APPLIED AS IF THE WORDS "COMBINED RESISTANCE" THEREIN WERE
IN LETTER AND MEANING "COMBINED FORCIBLE RESISTANCE." 

THE EVIDENCE, ALL OF WHICH IS EMBODIED IN THE PRESENT RECORD, WILL BE
HERE STATED IN REDUCED VOLUME WITHOUT OMITTING ANYTHING MATERIAL. 

HERNDON IS A NEGRO AND A MEMBER OF THE COMMUNIST PARTY OF THE U.S.A.,
WHICH IS A SECTION OF THE COMMUNIST INTERNATIONAL.  HE WAS SENT FROM
KENTUCKY TO ATLANTA, GEORGIA, AS A PAID ORGANIZER FOR THE PARTY. 
ATLANTA IS WITHIN AN AREA WHERE THERE IS A LARGE NEGRO POPULATION, AND
THE COMMUNIST PARTY HAS BEEN ENDEAVORING TO EXTEND ITS ACTIVITIES AND
MEMBERSHIP TO THAT POPULATION AMONG OTHERS.  HERNDON'S DUTIES AS AN
ORGANIZER WERE TO CALL AND CONDUCT MEETINGS, TO DISSEMINATE INFORMATION
RESPECTING THE PARTY, TO DISTRIBUTE ITS LITERATURE, TO EDUCATE
PROSPECTS AND SECURE MEMBERS, TO RECEIVE DUES AND CONTRIBUTIONS, AND TO
WORK UP A SUBORDINATE ORGANIZATION OF THE PARTY.  HE CALLED AND
CONDUCTED MEETINGS WHICH EVIDENTLY WERE SECRET, SOLICITED AND SECURED
MEMBERS, AND RECEIVED DUES AND CONTRIBUTIONS.  HE AND OTHERS, WHEN
BECOMING MEMBERS, SUBSCRIBED TO AN OBLIGATION SAYING "THE UNDERSIGNED
DECLARES HIS ADHERENCE TO THE PROGRAM AND STATUTES OF THE COMMUNIST
INTERNATIONAL AND THE COMMUNIST PARTY OF THE U.S.A., AND AGREES TO
SUBMIT TO THE DISCIPLINE OF THE PARTY AND TO ENGAGE ACTIVELY IN ITS
WORK." 

WHEN ARRESTED HE HAD UNDER HIS ARM A BOX IN WHICH HE WAS CARRYING
MEMBERSHIP AND COLLECTION BOOKS WHICH HE HAD BEEN USING AND VARIOUS
PAMPHLETS, BOOKS AND DOCUMENTS, ALL PERTAINING TO THE STRUCTURE,
PURPOSES AND ACTIVITIES OF THE PARTY.  TWO OR THREE OF THE PAPERS HAD
BEEN PREPARED BY HIM AND DISCLOSED THAT HE WAS AN ACTIVE SPIRIT IN THE
"SECTION COMMITTEE" AND THE "UNEMPLOYMENT COMMITTEE," BOTH SUBORDINATE
LOCAL AGENCIES OF THE PARTY.  THE MEMBERSHIP BOOKS, BESIDES SHOWING
NAMES OF THOSE WHOM HE HAD INDUCED TO BECOME MEMBERS AND DATES OF THEIR
ADMISSION, CONTAINED EXTRACTS FROM THE PARTY STATUTES, SOME OF WHICH
READ: 

"A MEMBER OF THE PARTY CAN BE EVERY PERSON FROM THE AGE OF EIGHTEEN
UP WHO ACCEPTS THE PROGRAM AND STATUTES OF THE COMMUNIST INTERNATIONAL
AND THE COMMUNIST PARTY OF THE U.S.A., WHO BECOMES A MEMBER OF A BASIC
ORGANIZATION OF THE PARTY, WHO IS ACTIVE IN THIS ORGANIZATION, WHO
SUBORDINATES HIMSELF TO ALL DECISIONS OF THE COMINTERN AND OF THE
PARTY, AND REGULARLY PAYS HIS MEMBERSHIP DUES." 

"THE STRICTEST PARTY DISCIPLINE IS THE MOST SOLEMN DUTY OF ALL PARTY
MEMBERS AND ALL PARTY ORGANIZATIONS.  THE DECISIONS OF THE CI AND THE
PARTY CONVENTION OF THE CC AND OF ALL LEADING COMMITTEES OF THE PARTY,
MUST BE PROMPTLY CARRIED OUT.  DISCUSSION OF QUESTIONS OVER WHICH THERE
HAVE BEEN DIFFERENCES MUST NOT CONTINUE AFTER THE DECISION HAS BEEN
MADE." 

"THE PARTY IS THE VANGUARD OF THE WORKING CLASS AND CONSISTS OF THE
BEST, MOST CLASS CONSCIOUS, MOST ACTIVE, THE MOST COURAGEOUS MEMBERS OF
THAT CLASS.  IT INCORPORATES THE WHOLE BODY OF EXPERIENCE OF THE
PROLETARIAN STRUGGLE, BASING ITSELF UPON THE REVOLUTIONARY THEORY OF
MARXISM AND REPRESENTING THE GENERAL AND LASTING INTERESTS OF THE WHOLE
OF THE WORKING CLASS.  THE PARTY PERSONIFIES THE UNITY OF PROLETARIAN
PRINCIPLES, OF PROLETARIAN WILL AND OF PROLETARIAN REVOLUTIONARY
ACTION." 

THE COLLECTION BOOKS CONTAINED THE STATEMENT "EVERY DOLLAR COLLECTED
IS A BULLET FIRED INTO THE BOSS CLASS." 

THE MEMBERSHIP AND COLLECTION BOOKS HAD BEEN SENT TO HERNDON FROM THE
MAIN OFFICE OF THE PARTY IN NEW YORK FOR USE BY HIM, AND HE HAD BEEN
USING THEM IN SECURING MEMBERS AND IN COLLECTING DUES AND
CONTRIBUTIONS.  WITH THE EXCEPTION OF TWO OR THREE PAPERS PREPARED BY
HIM AND HERETOFORE MENTIONED, THE LITERATURE WHICH HE WAS CARRYING
UNDER HIS ARM WHEN ARRESTED HAD BEEN SENT TO HIM FROM THE SAME OFFICE,
TOGETHER WITH MANY PAMPHLETS, BOOKS AND OTHER PUBLICATIONS, FOR USE AND
DISTRIBUTION BY HIM IN HIS WORK AS AN ORGANIZER.  THE LITERATURE WHICH
HE HAD WITH HIM WHEN ARRESTED WAS PRODUCED IN EVIDENCE AND WILL NOW BE
DESCRIBED, CHIEFLY BY TITLES AND EXTRACTS 

"APPEAL TO SOUTHERN YOUNG WORKERS." 

"THE YOUNG COMMUNIST LEAGUE IS THE CHAMPION NOT ONLY OF THE YOUNG
WHITE WORKERS BUT ESPECIALLY OF THE DOUBLY OPPRESSED NEGRO YOUNG
WORKERS.  THE YOUNG COMMUNIST LEAGUE FIGHTS AGAINST THE WHOLE SYSTEM OF
RACE DISCRIMINATION AND STANDS FOR FULL RACIAL, POLITICAL, ECONOMIC AND
SOCIAL EQUALITY OF ALL WORKERS.... 

"THE CHIEF AIM OF THE YOUNG COMMUNIST LEAGUE IS TO ORGANIZE THE YOUNG
WORKERS FOR A STRUGGLE AGAINST THE BOSSES AND AGAINST THE WHOLE PROFIT
SYSTEM. 

.         .         .         .         . 

"THE YOUNG COMMUNIST LEAGUE FIGHTS FOR: 

     .         .         .    .         . 

"FULL POLITICAL, SOCIAL AND RACIAL EQUALITY FOR THE NEGRO WORKERS. 

"AGAINST BOSSES' WARS.  DEFEND THE SOVIET UNION. 

"SMASH THE NATIONAL GUARD, THE C.M.T.C. AND R.O.T.C." 

"LIFE AND STRUGGLES OF NEGRO TOILERS." 

"IN NO OTHER SO-CALLED CIVILIZED COUNTRY IN THE WORLD ARE HUMAN
BEINGS TREATED AS BADLY AS THESE 15 MILLION NEGROES (IN THE UNITED
STATES).  THEY LIVE UNDER A PERPETUAL REGIME OF WHITE TERROR.... THEY
ARE ABSOLUTELY AT THE MERCY OF EVERY FIENDISH MOB INCITED BY THE WHITE
LANDLORDS AND CAPITALISTS." 

"COMMUNISM AND CHRISTIANISM." 

"BANISH THE GODS FROM THE SKIES AND CAPITALISTS FROM THE EARTH AND
MAKE THE WORLD SAFE FOR INDUSTRIAL COMMUNISM. 

     .         .         .         .         . 

"THE TROUBLE WITH EVERY REFORMATORY SOCIALISM OF MODERN TIMES IS,
THAT IT UNDERTAKES THE IMPOSSIBILITY OF CHANGING THE FRUIT OF THE
CAPITALIST STATE INTO THAT OF THE COMMUNISTIC ONE, WITHOUT CHANGING THE
POLITICAL ORGANISM; BUT TO DO THAT IS AS IMPOSSIBLE AS TO GATHER GRAPES
FROM THORNS OR FIGS FROM THISTLES.  HENCE AN UPROOTING AND REPLANTING
ARE NECESSARY (A REVOLUTION NOT A REFORMATION) WHICH WILL GIVE THE
WORLD A NEW TREE OF STATE. 

"CAPITALISM NO LONGER GROWS THE FRUITS (FOODS, CLOTHES AND HOUSES)
WHICH ARE NECESSARY TO THE SUSTENANCE OF ALL THE WORLD.  HENCE IT MUST
BE DUG UP BY THE ROOTS IN ORDER THAT A TREE WHICH IS SO ORGANIZED THAT
IT WILL BEAR THESE NECESSITIES FOR THE WHOLE WORLD MAY BE PLANTED IN
ITS PLACE. 

"THE PEOPLE OF RUSSIA HAVE ACCOMPLISHED THIS UPROOTING AND REPLANTING
(THIS REVOLUTION) IN THE CASE OF THEIR STATE, AND THOSE OF EVERY NATION
ARE DESTINED TO DO THE SAME IN ONE WAY OR ANOTHER, EACH ACCORDING TO
ITS HISTORICAL AND ECONOMIC DEVELOPMENT, SOME WITH MUCH VIOLENCE, MOST,
I HOPE, WITH BUT LITTLE." 

"COMMUNIST POSITION ON THE NEGRO QUESTION." 

THIS IS A BOOKLET OF SEVERAL PAGES AND BEARS ON THE FRONT OF ITS
COVER A MAP OF THE UNITED STATES SHOWING A DARK BELT STRETCHING ACROSS
CONSIDERABLE PORTIONS OF GEORGIA AND EIGHT OTHER SOUTHERN STATES. 
PARTS OF THE TEXT ARE HERE COPIED. 

"THE SLOGAN OF THE RIGHT OF SELF-DETERMINATION OCCUPIES THE CENTRAL
PLACE IN THE LIBERATION STRUGGLE OF THE NEGRO POPULATION IN THE BLACK
BELT AGAINST THE YOKE OF AMERICAN IMPERIALISM.  BUT THIS SLOGAN, AS WE
SEE IT, MUST BE CARRIED OUT ONLY IN CONNECTION WITH TWO OTHER BASIC
DEMANDS.  THUS, THERE ARE THREE BASIC DEMANDS TO BE KEPT IN MIND IN THE
BLACK BELT, NAMELY, THE FOLLOWING:    "(A)  CONFISCATION OF THE LANDED
PROPERTY OF THE WHITE LANDOWNERS AND CAPITALISTS FOR THE BENEFIT OF THE
NEGRO FARMERS.  THE LAND PROPERTY IN THE HANDS OF THE WHITE AMERICAN
EXPLOITERS CONSTITUTES THE MOST IMPORTANT MATERIAL BASIS OF THE ENTIRE
SYSTEM OF NATIONAL OPPRESSION AND SERFDOM OF THE NEGROES IN THE BLACK
BELT.  MORE THAN THREE-QUARTERS OF ALL NEGRO FARMERS HERE ARE BOUND IN
ACTUAL SERFDOM TO THE FARMS AND PLANTATIONS OF THE WHITE EXPLOITERS BY
THE FEUDAL SYSTEM OF 'SHARE CROPPING.' 

  .         .         .         .         .    "WITHOUT THIS
REVOLUTIONARY MEASURE, WITHOUT THE AGRARIAN REVOLUTION, THE RIGHT OF
SELF-DETERMINATION OF THE NEGRO POPULATION WOULD BE ONLY A UTOPIA OR,
AT BEST, WOULD REMAIN ONLY ON PAPER WITHOUT CHANGING IN ANY WAY THE
ACTUAL ENSLAVEMENT. 

"(B)  ESTABLISHMENT OF THE STATE UNITY OF THE BLACK BELT.  AT THE
PRESENT TIME THIS NEGRO ZONE - PRECISELY FOR THE PURPOSE OF
FACILITATING NATIONAL OPPRESSION - IS ARTIFICIALLY SPLIT UP AND DIVIDED
INTO A NUMBER OF VARIOUS STATES WHICH INCLUDE DISTANT LOCALITIES HAVING
A MAJORITY OF WHITE POPULATION.  IF THE RIGHT OF SELF-DETERMINATION OF
THE NEGROES IS TO BE PUT INTO FORCE, IT IS NECESSARY WHEREVER POSSIBLE
TO BRING TOGETHER INTO ONE GOVERNMENTAL UNIT ALL DISTRICTS OF THE SOUTH
WHERE THE MAJORITY OF THE SETTLED POPULATION CONSISTS OF NEGROES. 
WITHIN THE LIMITS OF THIS STATE THERE WILL OF COURSE REMAIN A FAIRLY
SIGNIFICANT WHITE MINORITY WHICH MUST SUBMIT TO THE RIGHT OF SELF
DETERMINATION OF THE NEGRO MAJORITY.... 

"(C)  RIGHT OF SELF-DETERMINATION.  THIS MEANS COMPLETE AND UNLIMITED
RIGHT OF THE NEGRO MAJORITY TO EXERCISE GOVERNMENTAL AUTHORITY IN THE
ENTIRE TERRITORY OF THE BLACK BELT, AS WELL AS TO DECIDE UPON THE
RELATIONS BETWEEN THEIR TERRITORY AND OTHER NATIONS, PARTICULARLY THE
UNITED STATES." 

  .         .         .         .         . 

"EVEN IF THE SITUATION DOES NOT YET WARRANT THE RAISING OF THE
QUESTION OF UPRISING, ONE SHOULD NOT LIMIT ONESELF AT PRESENT TO
PROPAGANDA FOR THE DEMAND, 'RIGHT TO SELF-DETERMINATION,' BUT SHOULD
ORGANIZE MASS ACTIONS, SUCH AS DEMONSTRATIONS, STRIKES, TAX BOYCOTT
MOVEMENTS, ETC." 

     .         .         .         .       . 

"A DIRECT QUESTION OF POWER IS ALSO THE DEMAND OF CONFISCATION OF THE
LAND OF THE WHITE EXPLOITERS IN THE SOUTH, AS WELL AS THE DEMAND OF THE
NEGROES THAT THE ENTIRE BLACK BELT BE AMALGAMATED INTO A STATE UNIT. 

"HEREBY, EVERY SINGLE FUNDAMENTAL DEMAND OF THE LIBERATION STRUGGLE
OF THE NEGROES IN THE BLACK BELT IS SUCH THAT - IF ONCE THOROUGHLY
UNDERSTOOD BY THE NEGRO MASSES AND ADOPTED AS THEIR SLOGAN - IT WILL
LEAD THEM INTO THE STRUGGLE FOR THE OVERTHROW OF THE POWER OF THE
RULING BOURGEOISIE, WHICH IS IMPOSSIBLE WITHOUT SUCH REVOLUTIONARY
STRUGGLE.  ONE CANNOT DENY THAT IT IS JUST POSSIBLE FOR THE NEGRO
POPULATION OF THE BLACK BELT TO WIN THE RIGHT TO SELF-DETERMINATION
DURING CAPITALISM; BUT IT IS PERFECTLY CLEAR AND INDUBITABLE THAT THIS
IS POSSIBLE ONLY THROUGH SUCCESSFUL REVOLUTIONARY STRUGGLE FOR POWER
AGAINST THE AMERICAN BOURGEOISIE, THROUGH WRESTING THE NEGROES' RIGHT
OF SELF-DETERMINATION FROM AMERICAN IMPERIALISM.  THUS, THE SLOGAN OF
RIGHT TO SELF-DETERMINATION IS A REAL SLOGAN OF NATIONAL REBELLION
WHICH, TO BE CONSIDERED AS SUCH, NEED NOT BE SUPPLEMENTED BY
PROCLAIMING STRUGGLE FOR THE COMPLETE SEPARATION OF THE NEGRO ZONE, AT
LEAST NOT AT PRESENT. 

"(D)  COMMUNISTS MUST FIGHT IN THE FOREFRONT OF THE NATIONAL
LIBERATION MOVEMENT AND MUST DO THEIR UTMOST FOR THE PROGRESS OF THIS
MASS MOVEMENT AND ITS REVOLUTIONIZATION.  NEGRO COMMUNISTS MUST CLEARLY
DISSOCIATE THEMSELVES FROM ALL BOURGEOIS CURRENTS IN THE NEGRO
MOVEMENT, MUST INDEFATIGABLY OPPOSE THE SPREAD OF THE INFLUENCE OF THE
BOURGEOIS GROUPS ON THE WORKING NEGROES." 

     .         .         .         .         . 

"THEIR CONSTANT CALL TO THE NEGRO MASSES MUST BE:  REVOLUTIONARY
STRUGGLE AGAINST THE RULING WHITE BOURGEOISIE, THROUGH A FIGHTING
ALLIANCE WITH THE REVOLUTIONARY WHITE PROLETARIAT. 

  .         .         .         .         . 

"WE ARE BOLSHEVIKS, MEMBERS OF A FIGHTING PARTY OF THE WORKING CLASS,
WHO KNOW THAT THE ONLY ROAD TO THE REVOLUTIONARY OVERTHROW OF
CAPITALISM AND THE ESTABLISHMENT OF COMMUNISM IS THROUGH WELDING
TOGETHER THE IRON UNITY OF CLASS IDEALOGY WHICH PENETRATES INTO OUR
RANKS, AS THE PREREQUISITE TO THE EFFECTIVE STRUGGLE AGAINST THE CLASS
ENEMY PHYSICALLY." 

THERE WAS NO DIRECT TESTIMONY THAT HERNDON DISTRIBUTED THE LITERATURE
JUST DESCRIBED.  NO MEMBER OF THE COMMUNIST PARTY CAME FORWARD TO TELL
WHAT HE DID IN THEIR MEETINGS OR IN INDUCING THEM TO BECOME MEMBERS. 
NOR DOES THIS SEEM STRANGE WHEN REGARD IS HAD TO THE OBLIGATION TAKEN
BY MEMBERS AND TO THE DISCIPLINE IMPOSED.  NEVERTHELESS THERE WAS
EVIDENCE FROM WHICH DISTRIBUTION BY HIM REASONABLY COULD BE INFERRED. 
IT WAS SHOWN THAT HE WAS AN ACTIVE MEMBER, WAS SENT TO ATLANTA AS A
PAID ORGANIZER, AND WAS SUBJECT TO PARTY DISCIPLINE; ALSO THAT HE
RECEIVED THE LITERATURE FOR DISTRIBUTION IN THE COURSE OF HIS WORK AND
HAD COPIES OF IT, TOGETHER WITH CURRENT MEMBERSHIP AND COLLECTION
BOOKS, UNDER HIS ARM WHEN HE WAS ARRESTED; AND FURTHER THAT HE HAD BEEN
SOLICITING AND SECURING MEMBERS, WHICH WAS PART OF THE WORK IN WHICH
THE LITERATURE WAS TO BE USED.  HE HAD DECLARED HIS "ADHERENCE TO THE
PROGRAM AND STATUTES" OF THE PARTY AND HAD TAKEN LIKE DECLARATIONS FROM
THOSE WHOM HE SECURED AS MEMBERS; AND THIS TENDED STRONGLY TO SHOW NOT
ONLY THAT HE UNDERSTOOD THE PARTY PROGRAM AND STATUTES AS OUTLINED IN
THE LITERATURE BUT ALSO THAT HE BROUGHT THEM TO THE ATTENTION OF OTHERS
WHOM HE SECURED AS MEMBERS.  BESIDES, AT THE TRIAL HE MADE AN EXTENDED
STATEMENT TO THE COURT AND JURY IN HIS DEFENSE,  FN6  BUT DID NOT REFER
IN ANY WISE TO THE LITERATURE OR DENY THAT HE HAD BEEN USING OR
DISTRIBUTING IT.  THUS THERE WAS IN THE EVIDENCE NOT MERELY SOME BUT
ADEQUATE AND UNDISPUTED BASIS FOR INFERRING THAT HE HAD BEEN USING THE
LITERATURE FOR THE PURPOSES FOR WHICH HE RECEIVED IT.  EVIDENTLY, AND
WITH REASON, THE JURY DREW THIS INFERENCE. 

IT SHOULD NOT BE OVERLOOKED THAT HERNDON WAS A NEGRO MEMBER AND
ORGANIZER IN THE COMMUNIST PARTY AND WAS ENGAGED ACTIVELY IN INDUCING
OTHERS, CHIEFLY SOUTHERN NEGROES, TO BECOME MEMBERS OF THE PARTY AND
PARTICIPATE IN EFFECTING ITS PURPOSES AND PROGRAM.  THE LITERATURE
PLACED IN HIS HANDS BY THE PARTY FOR THAT PURPOSE WAS PARTICULARLY
ADAPTED TO APPEAL TO NEGROES IN THAT SECTION, FOR IT PICTURED THEIR
CONDITION AS AN UNHAPPY ONE RESULTING FROM ASSERTED WRONGS ON THE PART
OF WHITE LANDLORDS AND EMPLOYERS, AND SOUGHT BY ALLURING STATEMENTS OF
RESULTING ADVANTAGES TO INDUCE THEM TO JOIN IN AN EFFORT TO CARRY INTO
EFFECT THE MEASURES WHICH THE LITERATURE PROPOSED.  THESE MEASURES
INCLUDED A REVOLUTIONARY UPROOTING OF THE EXISTING CAPITALIST STATE, AS
IT WAS TERMED; CONFISCATION OF THE LANDED PROPERTY OF WHITE LANDOWNERS
AND CAPITALISTS FOR THE BENEFIT OF NEGROES; ESTABLISHMENT IN THE BLACK
BELT OF AN INDEPENDENT STATE, POSSIBLY FOLLOWED BY SECESSION FROM THE
UNITED STATES; ORGANIZATION OF MASS DEMONSTRATIONS, STRIKES AND TAX
BOYCOTTS IN AID OF THIS MEASURE; ADOPTION OF A FIGHTING ALLIANCE WITH
THE REVOLUTIONARY WHITE PROLETARIAT; REVOLUTIONARY OVERTHROW OF
CAPITALISM AND ESTABLISHMENT OF COMMUNISM THROUGH EFFECTIVE PHYSICAL
STRUGGLES AGAINST THE CLASS ENEMY.  PROPOSING THESE MEASURES WAS
NOTHING SHORT OF ADVISING A RESORT TO FORCE AND VIOLENCE, FOR ALL KNOW
THAT SUCH MEASURES COULD NOT BE EFFECTED OTHERWISE.  NOT ONLY SO, BUT
THE LITERATURE MAKES SUCH REPELLING USE OF THE TERMS "REVOLUTION,"
"NATIONAL REBELLION," "REVOLUTIONARY STRUGGLE," "REVOLUTIONARY
OVERTHROW," "EFFECTIVE PHYSICAL STRUGGLE," "SMASH THE NATIONAL GUARD,"
"MASS STRIKES," AND "VIOLENCE," AS TO LEAVE NO DOUBT THAT THE USE OF
FORCE IN AN UNLAWFUL SENSE IS INTENDED. 

THE PURPOSE AND PROBABLE EFFECT OF SUCH LITERATURE, WHEN UNDER
CONSIDERATION IN A PROSECUTION LIKE THAT AGAINST HERNDON, ARE TO BE
TESTED AND DETERMINED WITH APPROPRIATE REGARD TO THE CAPACITY AND
CIRCUMSTANCES OF THOSE WHO ARE SOUGHT TO BE INFLUENCED.  FN7  IN THIS
INSTANCE THE LITERATURE IS LARGELY DIRECTED TO A PEOPLE WHOSE PAST AND
PRESENT CIRCUMSTANCES WOULD LEAD THEM TO GIVE UNUSUAL CREDENCE TO ITS
INFLAMING AND INCITING FEATURES. 

AND SO IT IS THAT EXAMINATION AND CONSIDERATION OF THE EVIDENCE
CONVINCE ME THAT THE SUPREME COURT OF THE STATE APPLIED THE STATUTE,
CONFORMABLY TO ITS OPINION, AS MAKING CRIMINAL AN ATTEMPT TO INDUCE AND
INCITE OTHERS TO JOIN IN COMBINED FORCIBLE RESISTANCE TO THE LAWFUL
AUTHORITY OF THE STATE. 

THAT THE CONSTITUTIONAL GUARANTY OF FREEDOM OF SPEECH AND ASSEMBLY
DOES NOT SHIELD OR AFFORD PROTECTION FOR ACTS OF INTENTIONAL INCITEMENT
TO FORCIBLE RESISTANCE TO THE LAWFUL AUTHORITY OF A STATE IS SETTLED BY
REPEATED DECISIONS OF THIS COURT; FN8  AND THE GEORGIA DECISIONS ARE TO
THE SAME EFFECT.  FN9 

UNDER THE STATUTE AS CONSTRUED AND APPLIED IT IS ESSENTIAL THAT THE
ACCUSED INTENDED TO INDUCE COMBINED FORCIBLE RESISTANCE.  THE PRESENCE
OF THE INTENT AGGRAVATES THE INDUCEMENT AND BRINGS IT MORE CERTAINLY
WITHIN THE POWER OF THE STATE TO DENOUNCE IT AS A CRIME THAN OTHERWISE
IT WOULD BE.  THE SUPREME COURT OF THE STATE IN BOTH OF ITS OPINIONS
WAS DEALING WITH A STATUTE AND A CHARGE IN WHICH THE INTENT OF THE
ACCUSED WAS AN ELEMENT OF THE OFFENSE.  IN THE ORIGINAL OPINION THE
COURT INCAUTIOUSLY SAID "IT WOULD BE SUFFICIENT THAT HE INTENDED IT
(THE COMBINED AND FORCIBLE RESISTANCE) TO HAPPEN AT ANY TIME."  IN ITS
OPINION ON REHEARING IT SAID THE PHRASE "AT ANY TIME" HAD NOT BEEN
INTENDED TO MEAN ANY TIME IN THE INDEFINITE FUTURE; AND BY WAY OF
AVOIDING SUCH A MEANING THE COURT CHANGED THAT PART OF THE ORIGINAL
OPINION BY MAKING IT READ "AT ANY TIME WITHIN WHICH HE MIGHT REASONABLY
EXPECT HIS INFLUENCE TO CONTINUE TO BE DIRECTLY OPERATIVE IN CAUSING
SUCH ACTION BY THOSE WHOM HE SOUGHT TO INDUCE."  I DO NOT PERCEIVE THAT
THIS PUTS THE STANDARD OF GUILT AT LARGE OR RENDERS IT INADMISSIBLY
VAGUE.  THE ACCUSED MUST INTEND THAT COMBINED FORCIBLE RESISTANCE SHALL
PROXIMATELY RESULT FROM HIS ACT OF INDUCEMENT.  THERE IS NO UNCERTAINTY
IN THAT.  THE INTENDED POINT OF TIME MUST BE WITHIN THE PERIOD DURING
WHICH HE "MIGHT REASONABLY EXPECT" HIS INDUCEMENT TO REMAIN DIRECTLY
OPERATIVE IN CAUSING THE COMBINED FORCIBLE RESISTANCE.  THE WORDS
"MIGHT REASONABLY EXPECT" HAVE AS MUCH PRECISION AS IS ADMISSIBLE IN
SUCH A MATTER, ARE NOT DIFFICULT TO UNDERSTAND, AND CONFORM TO
DECISIONS HERETOFORE GIVEN BY THIS COURT IN RESPECT OF RELATED
QUESTIONS.  FN10  I THEREFORE AM OF OPINION THAT THERE IS NO
OBJECTIONABLE UNCERTAINTY ABOUT THE STANDARD OF GUILT AND THAT THE
STATUTE DOES NOT IN THAT REGARD INFRINGE THE CONSTITUTIONAL GUARANTY OF
DUE PROCESS OF LAW. 

BELIEVING THAT THE STATUTE UNDER WHICH THE CONVICTION WAS HAD IS NOT
SUBJECT TO THE OBJECTIONS LEVELED AGAINST IT, I THINK THE JUDGMENT OF
THE SUPREME COURT OF THE STATE DENYING THE PETITION FOR HABEAS CORPUS
SHOULD BE AFFIRMED. 

FN1  GEORGIA CODE 1933, SECS. 26-901, 26-902, 26-903. 

FN2  CARR V. STATE, 176 GA. 747; 169 S.E. 201; HERNDON V. STATE, 178
GA. 832, 855; 174 S.E. 597. 

FN3  HERNDON V. STATE, 178 GA. 832, 855, 867; 174 S.E. 597. 

FN4  HERNDON V. STATE, 179 GA. 597, 599; 176 S.E. 620. 

FN5  LOWRY V. HERNDON, 182 GA. 582; 186 S.E. 429. 

FN6  SEE GEORGIA CODE 1933, SEC. 38-415. 

FN7  BURNS V. UNITED STATES, 274 U.S. 328, 335. 

FN8  GITLOW V. NEW YORK, 268 U.S. 652, 666, ET SEQ.; WHITNEY V.
CALIFORNIA, 274 U.S. 357, 371; FISKE V. KANSAS, 274 U.S. 380, 385;
STROMBERG V. CALIFORNIA, 283 U.S. 359, 368; NEAR V. MINNESOTA, 283 U.S.
697, 708. 

FN9  CARR V. STATE, 176 GA. 55; 166 S.E. 827, 167 S.E. 103; CARR V.
STATE, 176 GA. 747; 169 S.E. 201. 

FN10  WATERS-PIERCE OIL CO. V. TEXAS, 212 U.S. 86, 108-111; NASH V.
UNITED STATES, 229 U.S. 373, 376-378. 

MR. JUSTICE MCREYNOLDS, MR. JUSTICE SUTHERLAND AND MR. JUSTICE BUTLER
JOIN IN THIS DISSENT. 
..END :



STEELMAN V. ALL CONTINENT CO., 301 U.S. 278 


NO. 638.  ARGUED MARCH 29, 30, 1937.  - DECIDED APRIL 26, 1937.  - 86
F.(2D) 913, REVERSED. 


1.  JURISDICTION OF A BANKRUPTCY COURT TO ADMINISTER A BANKRUPT ESTATE
DRAWS TO ITSELF, WHEN ONCE IT HAS ATTACHED, AN INCIDENTAL OR ANCILLARY
JURISDICTION TO GIVE PROTECTION TO THE ESTATE AGAINST WASTE OR
DISINTEGRATION WHILE FRAUDS UPON ITS INTEGRITY ARE IN PROCESS OF
DISCOVERY.  P. 289. 

2.  PENDING BANKRUPTCY PROCEEDINGS IN NEW JERSEY IN WHICH
EXAMINATIONS WERE BEING CARRIED ON UNDER SEC. 21(A) OF THE BANKRUPTCY
ACT AT THE INSTANCE OF THE TRUSTEE FOR THE PURPOSE OF EXPOSING THE
RELATIONS OF THE BANKRUPT TO A CORPORATION FORMED AND CONTROLLED BY
HIM, TO WHICH HE HAD TRANSFERRED VALUABLE SECURITIES AND WHICH, THERE
WAS GROUND TO BELIEVE, WAS A MERE INSTRUMENT FOR DEFRAUDING HIS
CREDITORS, THE CORPORATION, HAVING ALREADY FILED A CLAIM IN THE
BANKRUPTCY CASE, BROUGHT SUIT IN A FEDERAL COURT IN PENNSYLVANIA FOR
THE ALLEGED PURPOSE OF QUIETING ITS TITLE TO PART OF THE SECURITIES
THEN IN CUSTODY OF BROKERS IN THAT STATE, AND SERVED THE TRUSTEE, UNDER
JUD.  CODE, SEC. 57, AS AN ABSENT PARTY.  THERE WAS PROBABLE CAUSE TO
BELIEVE THAT THE SUIT WAS A STEP IN A FRAUDULENT CONSPIRACY OF THE
BANKRUPT, HIS RELATIVES AND THE CORPORATION, IMPEDING AND PERHAPS
FRUSTRATING THE ADMINISTRATION OF THE ASSETS, AND THAT ONLY BY A
PLENARY SUIT TO BE BROUGHT (AND WHICH LATER WAS BROUGHT) BY THE
TRUSTEE, IN NEW JERSEY, COULD THE DANGER OF OBSTRUCTION BE AVERTED AND
THE ESTATE BE KEPT INTACT, PENDING INQUIRY INTO THE ALLEGED FRAUD. 
HELD THAT THE COURT OF BANKRUPTCY HAD POWER TO ENJOIN THE CORPORATION
FROM PROSECUTING THE SUIT IN PENNSYLVANIA.  PP. 285, 288. 

3.  RESTRAINT OF A PLAINTIFF FROM PROSECUTING HIS CASE IS NOT
RESTRAINT OF THE COURT.  P. 290. 

STEELMAN, TRUSTEE IN BANKRUPTCY, V. ALL CONTINENT CORP. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 300 U.S. 648, TO REVIEW THE REVERSAL OF A DECREE OF THE
DISTRICT COURT, IN BANKRUPTCY, 16 F.SUPP.  949, WHICH RESTRAINED THE
PROSECUTION AGAINST THE TRUSTEE OF A SUIT IN ANOTHER FEDERAL COURT. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

THE QUESTION IS ONE AS TO THE POWER OF A COURT OF BANKRUPTCY, IN THE
SITUATION DEVELOPED IN THE RECORD, TO ENJOIN THE PROSECUTION OF A SUIT
IN ANOTHER FEDERAL COURT UPON THE GROUND THAT THE SUIT, IF PRESSED TO A
DECREE, MAY THWART AN INQUIRY INTO FRAUDS CHARGED AGAINST THE BANKRUPT,
OR MAKE RELIEF AGAINST THEM DIFFICULT. 

WILLIAM FOX WAS ADJUDICATED A BANKRUPT ON MAY 29, 1936, IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.  ON THE PETITION
OF TWO CREDITORS AN ORDER WAS MADE UNDER SEC. 21A OF THE BANKRUPTCY ACT
(11 U.S.C. SEC. 44A) FOR THE EXAMINATION OF ALL CONTINENT CORPORATION
(A DELAWARE CORPORATION), ITS PRESIDENT EVA FOX, WHO WAS ALSO THE
BANKRUPT'S WIFE, HIS DAUGHTERS, AND OTHER WITNESSES.  THE WIFE REFUSED
TO SUBMIT TO EXAMINATION, AND WAS CITED FOR CONTEMPT.  WHEN THIS RECORD
WAS MADE UP, THE PROCEEDING TO PUNISH HER WAS STILL UNDETERMINED. 
MEANWHILE THE EXAMINATION PROCEEDED WITH THE AID OF THE WITNESSES
RESPONDING TO THE ORDER.  AFTER SEVENTEEN OR MORE HEARINGS THE REFEREE
MADE AN ORDER ON AUGUST 18, 1936, WHEREBY ALL CONTINENT CORPORATION WAS
DIRECTED TO DELIVER ALL ITS BOOKS AND RECORDS TO THE TRUSTEE IN
BANKRUPTCY (PETITIONER IN THIS COURT) FOR EXAMINATION AND AUDIT.  AS A
BASIS FOR THE ORDER, WHICH WAS CONFIRMED BY THE COURT WITH UNIMPORTANT
CHANGES (IN RE FOX, 16 F.SUPP.  950), THE REFEREE CERTIFIED THE FACTS
AS THEY HAD BEEN DEVELOPED THROUGH THE EVIDENCE BEFORE HIM.  BY THIS IT
APPEARED THAT ALL CONTINENT CORPORATION WAS THE CREATION OF THE
BANKRUPT HIMSELF, WHO HAD SUPPLIED EVERY DOLLAR OF ITS CAPITAL; THAT IN
DOING THIS HE HAD DIVESTED HIMSELF OF A SUBSTANTIAL PORTION OF HIS
PROPERTY; THAT THE ENTIRE CAPITAL STOCK, THEN CLAIMED BY HIS WIFE, HAD
BEEN KEPT IN HIS NAME UPON THE CORPORATE BOOKS; THAT HE HAD RETAINED IN
HIS POSSESSION AND UNDER HIS CONTROL THE ASSETS OF THE CORPORATION,
MADE UP OF SECURITIES, AND HAD DEALT WITH THEM ON MANY OCCASIONS AS IF
THEY WERE HIS OWN; THAT HE HELD A POWER OF ATTORNEY, BROAD IN ITS
TERMS, AUTHORIZING HIM TO ACT FOR THE CORPORATION IN THE TRANSACTION OF
ITS BUSINESS; THAT SUCH BOOKS AND RECORDS AS WERE ALREADY IN EVIDENCE
DISCLOSED DISBURSEMENTS FOR HIS ACCOUNT, DISCREPANCIES BETWEEN THE
ENTRIES AND THOSE IN HIS PRIVATE BOOKS, AND ALSO ERASURES, CORRECTIONS
AND INTERLINEATIONS AFFECTING THE SCRUTINIZED TRANSACTIONS, AS WELL AS
SALES TO THE CORPORATION ON THE EVE OF BANKRUPTCY.  IN THE VIEW OF THE
REFEREE, THIS CHAIN OF FACTS, COMBINED WITH MANY OTHERS IN THE
TESTIMONY BEFORE HIM, WAS PROOF "THAT THE AFFAIRS OF THE ALL CONTINENT
CORPORATION WERE SO RELATED TO AND INTERTWINED WITH THE PROPERTY AND
AFFAIRS OF THE BANKRUPT" AS TO SHOW THE NEED FOR AN EXHAUSTIVE
EXAMINATION AND AUDIT OF ALL THE DOCUMENTS AVAILABLE. 

THE ENFORCEMENT OF THE ORDER FOR THE PRODUCTION OF THE BOOKS AND
RECORDS WAS STAYED BY THE DISTRICT COURT UNTIL SEPTEMBER 9, 1936.  ON
THAT DAY THE TRUSTEE WAS SERVED IN NEW JERSEY WITH A SUBPOENA AND BILL
OF COMPLAINT IN A SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA.  THE COMPLAINANT NAMED IN THE BILL
WAS THE ALL CONTINENT CORPORATION, WHICH HAD ALREADY FILED A PROOF OF
CLAIM AGAINST FOX IN THE BANKRUPTCY PROCEEDING; THE DEFENDANTS WERE THE
MEMBERS OF THE PARTNERSHIP OF J.W. SPARKS & COMPANY, WITH WHOM WERE
JOINED AS ABSENTEE DEFENDANTS, CAPITAL COMPANY, A CORPORATION, AND THE
PETITIONER IN HIS CAPACITY AS TRUSTEE OF THE ESTATE.  THE SUIT WAS
BROUGHT UNDER SEC. 57 OF THE JUDICIAL CODE (28 U.S.C. SEC. 118) TO
REMOVE A CLOUD UPON THE TITLE TO PERSONAL PROPERTY CLAIMED BY THE
COMPLAINANT.  THE TRUSTEE NOT BEING "AN INHABITANT OF OR FOUND WITHIN"
THE DISTRICT OF THE SUIT, AN ORDER DIRECTING HIM TO PLEAD WAS SERVED
UPON HIM IN NEW JERSEY AFTER THE SERVICE OF THE BILL.  JUDICIAL CODE,
SEC. 57; 28 U.S.C. SEC. 118.  THE CLOUD TO BE REMOVED HAD ITS ORIGIN IN
A THIRD PARTY SUBPOENA ISSUED OUT OF A FEDERAL COURT IN NEW YORK IN
PROCEEDINGS SUPPLEMENTARY TO JUDGMENT.  CAPITAL COMPANY, A CORPORATION,
HAD RECOVERED A JUDGMENT AGAINST FOX BEFORE HE BECAME BANKRUPT.  A
PROCEEDING SUPPLEMENTARY TO JUDGMENT WAS BEGUN, AND WE KNOW FROM OUR
RECORDS THAT FOX REFUSED TO APPEAR AND WAS FINED FOR CONTEMPT.  FOX V.
CAPITAL CO., 299 U.S. 105.  IN AID OF THE SAME JUDGMENT, A THIRD PARTY
SUBPOENA WAS SERVED UPON SPARKS & CO., STOCKBROKERS RESIDING IN
PHILADELPHIA AND THERE ENGAGED IN BUSINESS.  THESE BROKERS HAD UPON
THEIR BOOKS AN ACCOUNT IN THE NAME OF ALL CONTINENT CORPORATION, IN
WHICH FOX WAS BELIEVED TO HAVE AN INTEREST AS OWNER.  THE SECURITIES
HELD IN THAT ACCOUNT HAD A VALUE IN EXCESS OF HALF A MILLION DOLLARS,
SUBJECT TO A DEBIT BALANCE.  TO ENABLE THE JUDGMENT CREDITOR TO REACH
ANY EQUITY IN THOSE SECURITIES BELONGING TO THE DEBTOR, THE SUBPOENA
SERVED UPON THE BROKERS WAS ACCOMPANIED BY A NOTICE, WHICH IN EFFECT
WAS AN INJUNCTION (NEW YORK CIVIL PRACTICE ACT SEC. 781), RESTRAINING
THEM FROM DISPOSING OF THE PROPERTY OF WILLIAM FOX UNTIL THE FURTHER
ORDER OF THE COURT.  THE VALIDITY OF THE INJUNCTION, THOUGH CHALLENGED
BY THE BROKERS, WAS UPHELD UPON APPEAL.  CAPITAL CO. V. FOX, 85 F.(2D)
97.  BECAUSE OF THAT RESTRAINT, SPARKS & CO. REFUSED TO PERMIT ANY
SECURITIES TO BE WITHDRAWN FROM THEIR CUSTODY OR OTHERWISE DISPOSED OF,
HAVING NOTICE OF THE CLAIM THAT, IRRESPECTIVE OF THE FORM OF THE
ACCOUNT, THE SECURITIES BELONGED TO FOX.  ANXIOUS TO RESUME THE CONTROL
OF THE SECURITIES, ALL CONTINENT CORPORATION SUED IN PENNSYLVANIA TO
ESTABLISH TITLE TO THE RES.  CAPITAL COMPANY WAS STATED IN THE BILL TO
HAVE CREATED A CLOUD UPON THE TITLE BY ISSUING THE THIRD PARTY SUBPOENA
WITH THE ACCOMPANYING INJUNCTION.  THE TRUSTEE IN BANKRUPTCY WAS STATED
TO HAVE HELPED TO CREATE THE CLOUD BY JOINING WITH CAPITAL COMPANY IN A
REQUEST THAT THE SUBPOENA BE CONTINUED AFTER THE BANKRUPTCY PETITION. 
RELIEF WAS DEMANDED DECREEING ALL CONTINENT CORPORATION TO BE THE OWNER
OF THE SECURITIES AND ENTITLED TO POSSESSION UPON PAYMENT OF THE DEBIT
BALANCE OWING TO THE BROKERS. 

THE TRUSTEE IN BANKRUPTCY UPON SERVICE OF THE BILL OF COMPLAINT
PETITIONED THE COURT OF BANKRUPTCY THAT IT STAY THE PROSECUTION OF THE
SUIT IN PENNSYLVANIA.  THE PETITION FOR A STAY WAS GRANTED.  THE
OPINION OF THE DISTRICT JUDGE (16 F.SUPP.  949) STATES THAT A GRAVE
QUESTION HAS ARISEN AS TO THE OWNERSHIP OF THE ASSETS AND SHARES OF ALL
CONTINENT CORPORATION.  LITIGATION AS TO SUCH OWNERSHIP "OUGHT TO BE
CONDUCTED BY TRUSTEE AFTER THERE HAS BEEN A FULL AND COMPLETE
DISCLOSURE OF THE FACTS IN THE 21(A) EXAMINATIONS."  "TO REQUIRE THE
TRUSTEE TO APPEAR AND DEFEND THAT SUIT (I.E., THE SUIT IN PENNSYLVANIA)
...  WOULD INTERFERE MATERIALLY WITH PROPER ADMINISTRATION."  FURTHER
PROSECUTION AGAINST HIM WAS ACCORDINGLY RESTRAINED. 

FROM THAT DECREE ALL CONTINENT CORPORATION APPEALED TO THE UNITED
STATES CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.  BY CONSENT OF
THE PARTIES THE COURT MADE AN ORDER INCLUDING THREE ADDITIONAL
DOCUMENTS IN THE TRANSCRIPT OF THE RECORD:  (1) THE BILL OF COMPLAINT
IN A SUIT IN THE COURT OF CHANCERY IN NEW JERSEY; (2) AN ORDER TO SHOW
CAUSE FOR AN INJUNCTION PENDENTE LITE AND THE APPOINTMENT OF A
RECEIVER; AND (3) THE ANSWER OF SPARKS & CO. IN THE SUIT IN
PENNSYLVANIA.  THE SUIT IN THE NEW JERSEY CHANCERY WAS BROUGHT BY THE
TRUSTEE IN BANKRUPTCY AGAINST THE BANKRUPT WILLIAM FOX, HIS WIFE, HIS
DAUGHTERS, HIS GRANDCHILDREN, AND THE ALL CONTINENT CORPORATION.  THE
BILL WAS FILED WITHIN A WEEK FROM THE DATE OF THE RESTRAINING ORDER. 
IT CHARGES FRAUD IN THE TRANSFER OF SECURITIES AND OTHER ASSETS TO THE
CORPORATION AT THE TIME OF ITS CREATION AND ALSO AT LATER DATES.  IT
CHARGES FRAUD IN THE ASSIGNMENT OF THE SHARES OF THE CORPORATION BY FOX
TO HIS WIFE, PARTLY FOR HER OWN BENEFIT AND PARTLY FOR THE BENEFIT OF
CHILDREN AND GRANDCHILDREN.  IT CHARGES FRAUD IN THE OPENING OF
ACCOUNTS WITH STOCKBROKERS, OSTENSIBLY FOR THE USE OF THE CORPORATION
ITSELF, BUT REALLY FOR THE USE OF FOX ALONE.  ALL THESE TRANSACTIONS
ARE STATED TO HAVE OCCURRED IN EXECUTION OF A UNITARY SCHEME, TO WHICH
FOX, HIS WIFE AND CHILDREN AND THE CORPORATION WERE PARTIES IN ITS
SEVERAL MANIFESTATIONS, FOR THE HINDRANCE OF CREDITORS IN THE
ENFORCEMENT OF THEIR RIGHTS AND REMEDIES.  A DECREE IS PRAYED ENJOINING
THE CORPORATION FROM DISPOSING OF ITS ASSETS, APPOINTING A RECEIVER TO
MANAGE AND PRESERVE THEM DURING THE PENDENCY OF THE SUIT, ANNULLING ALL
THE TRANSFERS TAINTED BY THE FRAUD, AND DECREEING A TRUST FOR THE
BENEFIT OF THE BANKRUPT AND THROUGH HIM FOR THE TRUSTEE.  UPON THE
FILING OF THE BILL THE CHANCELLOR MADE AN ORDER TO SHOW CAUSE WHY A
RECEIVER SHOULD NOT BE APPOINTED, AND HE ENJOINED IN THE INTERIM ANY
TRANSFER OF THE ASSETS.  ONE OTHER DOCUMENT, AS WE HAVE INDICATED, WAS
ADDED TO THE TRANSCRIPT.  THIS WAS THE ANSWER OF SPARKS & CO. IN THE
SUIT IN PENNSYLVANIA.  IN THAT ANSWER THEY STATE THE ACCEPTANCE OF
SECURITIES FROM ALL CONTINENT CORPORATION WITHOUT NOTICE THAT FOX OR
OTHERS HAD ANY INTEREST THEREIN; THE EXISTENCE OF A DEBIT BALANCE OF
$308,764.97; THE READINESS OF THE CUSTOMER TO PAY THE DEBIT BALANCE ON
THE RETURN OF THE SECURITIES; AND THE HARDSHIP TO THE BROKERS INVOLVED
IN CONTINUING THE ACCOUNT WITH ALL THE RISKS INCIDENTAL TO FUTURE
CHANGES IN THE MARKET. 

UPON THE RECORD THUS SUPPLEMENTED THE COURT OF APPEALS CONSIDERED THE
APPEAL.  86 F.(2D) 913.  IT SAID THAT "THE REAL QUESTION IN ISSUE HERE
IS WHETHER OR NOT THE NEW JERSEY COURT (I.E., THE COURT OF BANKRUPTCY
IN NEW JERSEY) HAD THE POWER TO ENJOIN THE APPELLANT FROM PROSECUTING
ITS SUIT, UNDER THE FACTS IN THIS CASE, IN THE PENNSYLVANIA COURT."  IT
RULED THAT "THE PENNSYLVANIA COURT, HAVING FIRST ACQUIRED JURISDICTION
OF THE PROPERTY AND CONTROVERSY, IS ENTITLED TO EXCLUSIVE JURISDICTION,
AND THE INSTITUTION OF THE SUIT IN CHANCERY WAS AN ATTEMPT TO OUST THE
PENNSYLVANIA COURT OF THE JURISDICTION WHICH IT HAD PREVIOUSLY AND
VALIDLY ACQUIRED."  IT COUPLED THAT RULING WITH THE STATEMENT THAT THE
CORPORATION WOULD BE ENTITLED "UPON PROPER APPLICATION" TO "RESTRAIN
THE TRUSTEE FROM LITIGATING THE CONTROVERSY ELSEWHERE."  IT FOUND IN
THE SUIT IN THE NEW JERSEY COURT OF CHANCERY TWO SEPARABLE
CONTROVERSIES, ONE BETWEEN THE TRUSTEE AND ALL CONTINENT CORPORATION,
THE OTHER BETWEEN THE TRUSTEE AND THE MEMBERS OF THE FOX FAMILY, THE
CORPORATION BEING STATED TO BE THE ONLY NECESSARY PARTY DEFENDANT TO
THE FIRST CONTROVERSY AND THE FOX FAMILY THE ONLY NECESSARY PARTIES
DEFENDANT TO THE OTHER.  IT CONCLUDED THAT UPON THE FACTS EXHIBITED
"THE DISTRICT COURT OF NEW JERSEY DID NOT HAVE THE POWER TO RESTRAIN
THE SUIT WHICH THE STATUTE CLEARLY AUTHORIZED TO BE BROUGHT IN THE
PENNSYLVANIA COURT."  THE DECREE OF THE COURT OF BANKRUPTCY WAS
ACCORDINGLY REVERSED.  THE QUESTION OF POWER BEING IMPORTANT, WE
GRANTED CERTIORARI. 

ALL CONTINENT CORPORATION, IF THERE IS TRUTH IN THE CHARGES MADE BY
THE TRUSTEE, IS A PARTY TO A CONSPIRACY TO COVER UP THE BANKRUPT'S
ASSETS AND KEEP THEM FROM HIS CREDITORS.  IN THAT VIEW OF THE FACTS,
THE SUIT IN PENNSYLVANIA WILL BE A STEP IN FULFILLING THE CONSPIRACY,
AND MAY EVEN CROWN IT WITH SUCCESS.  THE INQUIRY INTO THE FRAUD, AN
INQUIRY GOING FORWARD IN ORDERLY FASHION UNDER THE SUPERVISION OF THE
COURT OF BANKRUPTCY, WILL BE TRANSFERRED TO ANOTHER JURISDICTION WITH
THE SUPPOSED FRAUDULENT GRANTEE AS DOMINUS LITIS.  IN SUCH A SUIT THERE
IS DANGER THAT THE ISSUES TO BE TRIED MAY BE SO NARROWLY RESTRICTED AS
TO SHUT OUT THE LIGHT.  ALL CONTINENT CORPORATION MAY BE SHOWN TO HAVE
THE LEGAL TITLE TO THE SECURITIES IN THE KEEPING OF ITS BROKERS.  IF
SO, IT MAY BE ADJUDGED IN A CONTROVERSY WITH THE BROKERS TO BE ENTITLED
TO POSSESSION, THOUGH ITS OWN SHARES ARE SUBJECT TO A SECRET TRUST FOR
THE BENEFIT OF THE BANKRUPT.  THERE WILL BE AN ABSENCE OF THE PARTIES
WITHOUT WHOM THE ADJUDICATION OF SUCH A TRUST WILL BE INDECISIVE AND
PERHAPS IMPOSSIBLE.  IF ASSIGNMENTS OF THE SHARES HAVE BEEN MADE BY THE
BANKRUPT TO HIS WIFE FOR HIS OWN USE OR FOR HERS OR FOR THE USE OF
CHILDREN AND OTHER RELATIVES, THE INVALIDITY OF SUCH ASSIGNMENTS MAY
NOT BE OPEN TO DECISION UNLESS THE ASSIGNEES OF THE SHARES ARE BROUGHT
BEFORE THE COURT.  CHOSES IN ACTION AND OTHER EQUITABLE ASSETS, EVEN
THOUGH FRAUDULENTLY TRANSFERRED, ARE NOT SUBJECT AT COMMON LAW TO
SEIZURE UNDER EXECUTION AT THE INSTANCE OF A CREDITOR, BUT THE TRANSFER
MUST BE AVOIDED BY A DECREE IN EQUITY.  STEPHENS V. CADY, 14 HOW.  528,
531; FREEDMAN'S SAVINGS & TRUST CO. V. EARLE, 110 U.S. 710, 712;
ANTHONY V. WOOD, 96 N.Y. 180, 185; AMERICAN SURETY CO. V. CONNER, 251
N.Y. 1, 5, 6; 166 S.E. 783.  THE NEED FOR A DECREE IS NO LESS OBVIOUS
AND SETTLED WHEN TITLE IS TO BE RECLAIMED AT THE SUIT OF A TRUSTEE. 
THERE ARE TIMES, IT IS TRUE, WHEN A TRUSTEE MAY HAVE THE BENEFIT OF A
SUMMARY ORDER FOR TRANSFER OR SURRENDER, BUT THIS WILL NEVER HAPPEN AS
TO PROPERTY OUT OF HIS POSSESSION UNLESS THE ADVERSE CLAIM OF TITLE IS
COLORABLE ONLY.  TAUBEL CO. V. FOX, 264 U.S. 426, 431, 433, 434; MAY V.
HENDERSON, 268 U.S. 111, 115; GALBRAITH V. VALLELY, 256 U.S. 46, 50;
TAYLOR V. STERNBERG, 293 U.S. 470, 473.  QUITE AS MUCH AS ANY CREDITOR,
THE TRUSTEE MAY THUS BE HELPLESS TO VINDICATE HIS EQUITIES IN THE SUIT
IN PENNSYLVANIA, THE PARTIES BEING WHAT THEY ARE.  OTHER DIFFICULTIES
WILL REMAIN IF THESE CAN BE SURMOUNTED.  THE BANKRUPT'S WIFE MAY ABSENT
HERSELF FROM THE TRIAL, JUST AS SHE HAS REFUSED TO SUBMIT TO
EXAMINATION IN THE BANKRUPTCY PROCEEDING, WITH THE RESULT THAT THE
INVESTIGATION OF THE EQUITIES MAY BE PARTIAL OR ABORTIVE.  OTHER
WITNESSES MAY DO THE LIKE.  THE DANGER OF FRUSTRATION BY SUCH MEANS
WILL BE MUCH GREATER IN A SUIT BY ALL CONTINENT THAN IN ONE BY THE
TRUSTEE, AN OFFICER OF THE COURT.  IN THE END A FRAUDULENT GRANTEE MAY
GAIN POSSESSION OF THE SECURITIES WITH POWER TO DISTRIBUTE THEM AMONG
THE MEMBERS OF THE BANKRUPT'S FAMILY, AND TO DO THIS, MOREOVER, UNDER
COVER OF A DECISION WHICH WILL BREED CONFUSION AND UNCERTAINTY IN OTHER
SUITS TO FOLLOW. 

ALL THESE EMBARRASSMENTS AND OBSTACLES WILL BE REMOVED AT A SINGLE
STROKE IF THE BANKRUPTCY COURT IS FREE FROM VEXATIOUS INTERFERENCE IN
ITS TASK OF SUPERVISING AND CONTROLLING THE ADMINISTRATION OF THE
ASSETS.  THE FACTS MAY THEN BE UNCOVERED WITHOUT HASTE OR IMPEDIMENT BY
CONTINUING THE EXAMINATION UNDER SEC. 21A.  A PLENARY SUIT MAY BE
BROUGHT WITH THE TRUSTEE IN CONTROL TO ASCERTAIN THE LEGAL AND THE
EQUITABLE INTERESTS IN ALL CONTINENT'S ASSETS AND ALSO IN ITS SHARES OF
STOCK.  ALL PERSONS WHOSE INTERESTS WILL BE AFFECTED BY AN APPROPRIATE
DECREE, AND PARTICULARLY THE MEMBERS OF THE BANKRUPT'S FAMILY, ADVERSE
CLAIMANTS TO THE SHARES, MAY BE JOINED AS DEFENDANTS, AS INDEED THEY
HAVE BEEN JOINED ALREADY IN THE NEW JERSEY COURT OF CHANCERY.  TO AVOID
THE FRAUDULENT OR IMPROVIDENT EXERCISE OF DOMINION BY THE HOLDER OF THE
LEGAL TITLE, AN INJUNCTION MAY BE GRANTED RESTRAINING THE TRANSFER OF
THE ASSETS UNTIL THE ISSUES HAVE BEEN DETERMINED.  TO AVOID LOSS OR
HARDSHIP EITHER TO STOCKBROKERS OR TO OTHERS BY TYING UP ACCOUNTS
WITHOUT OPPORTUNITY FOR RELEASE A RECEIVER MAY BE APPOINTED WITH POWER
TO MANAGE SUCH ACCOUNTS AND PRESERVE THE ASSETS GENERALLY.  ALL THESE
FORMS OF RELIEF AND OTHERS ANCILLARY THERETO WILL BE WELL WITHIN THE
POWERS OF A COURT OF EQUITY IF A SUIT IS MAINTAINED IN THE NAME OF THE
TRUSTEE WITH THE CORPORATION, THE BANKRUPT AND HIS FAMILY PARTIES TO
THE RECORD.  THE SUGGESTION WILL NOT HOLD THAT THE CONTROVERSY BETWEEN
THE TRUSTEE AND THE CORPORATION HAS NO CONNECTION WITH THE CONTROVERSY
BETWEEN THE TRUSTEE, THE BANKRUPT AND HIS RELATIVES.  CF. GRAVES V.
CORBIN, 132 U.S. 571.  ON THE CONTRARY, THE REMEDY AGAINST THE BANKRUPT
AND HIS RELATIVES IS LIKELY TO BE TRUNCATED AND INADEQUATE UNLESS
ACCOMPANIED BY AN INJUNCTION AND A RECEIVERSHIP WHICH WILL BIND THE
CORPORATION, ITS OFFICERS AND AGENTS.  THE SUIT IN THE NEW JERSEY COURT
OF CHANCERY, WHICH THE COURT BELOW HAS ERRONEOUSLY CHARACTERIZED AS ONE
THAT SHOULD BE RESTRAINED BECAUSE BROUGHT AFTER NOTICE OF THE SUIT IN
PENNSYLVANIA, WILL SUPPLY AN APPROPRIATE AND CONVENIENT MEDIUM FOR THE
LITIGATION OF THESE ISSUES IF IT IS PERMITTED TO GO FORWARD. 

THE DECISION UNDER REVIEW, WHICH GIVES FREE REIN TO THE PROSECUTION
OF THE SUIT IN PENNSYLVANIA, IS BUILT ON THE ASSUMPTION THAT IN THE
CIRCUMSTANCES EXHIBITED THERE IS NO POWER TO APPLY A CURB.  THE COURT
HAS NOT FOUND THAT DISCRETION WAS ABUSED OR IMPROVIDENTLY EXERCISED IF
POWER WAS NOT LACKING.  THIS IS PLAIN FROM THE OPINION.  IT IS MADE
PLAINER, IF THAT BE POSSIBLE, BY THE ARGUMENT OF COUNSEL FOR THE
CORPORATION, THE RESPONDENT IN THIS COURT, DISCLAIMING ANY EFFORT TO
UPHOLD THE DECISION IN HIS FAVOR IN THE ABSENCE OF DEFECT OF POWER. 
WITH THE CONTROVERSY THUS NARROWED THE PATH IS CLEARED TO A
CONCLUSION.  FOR REASONS ALREADY INDICATED THERE WAS PROBABLE CAUSE FOR
THE BELIEF THAT THE SUIT IN PENNSYLVANIA WOULD BE A STEP IN THE
EXECUTION OF A FRAUDULENT CONSPIRACY, IMPEDING AND PERHAPS FRUSTRATING
THE ADMINISTRATION OF THE ASSETS.  THERE WAS PROBABLE CAUSE FOR THE
BELIEF THAT ONLY THROUGH A SUIT UPON THE LINES OF THE ONE IN THE NEW
JERSEY CHANCERY COULD THE DANGER OF OBSTRUCTION BE AVERTED AND THE
ESTATE BE KEPT INTACT UNTIL THE ENTRY OF A DECREE ADJUDGING THE GUILT
OR INNOCENCE OF THE PUTATIVE CONSPIRATORS.  WHETHER THEY ARE INNOCENT
OR GUILTY IS A QUESTION NOT BEFORE US NOW.  THE DATA FOR THE FORMATION
OF ANY OPINION ON THE SUBJECT HAVE NOT YET BEEN SUPPLIED.  AT PRESENT
OUR INQUIRY HALTS WITH THE DISCOVERY OF PROBABLE CAUSE FOR PRESERVING
THE ESTATE FROM DISMEMBERMENT OR WASTE THROUGH A PRECIPITATE DECISION. 
IF SUCH CAUSE HAS BEEN MADE OUT, WE THINK THE COURT OF BANKRUPTCY HAS
BEEN ARMED WITH ABUNDANT POWER TO PRESERVE THE STATUS QUO UNTIL THERE
CAN BE AN ADEQUATE TRIAL WITH ALL THE NECESSARY PARTIES AND A JUDGMENT
ON THE MERITS. 

THE JUDICIAL CODE PROVIDES (SEC. 262; 28 U.S.C. SEC. 377) THAT THE
UNITED STATES COURTS "SHALL HAVE POWER TO ISSUE ALL WRITS NOT
SPECIFICALLY PROVIDED FOR BY STATUTE, WHICH MAY BE NECESSARY FOR THE
EXERCISE OF THEIR RESPECTIVE JURISDICTIONS AND AGREEABLE TO THE USAGES
AND PRINCIPLES OF LAW."  THE BANKRUPTCY ACT REINFORCES THAT AUTHORITY
BY PROVIDING (SEC. 2(15); 11 U.S.C. SEC. 11(15)) THAT COURTS OF
BANKRUPTCY ARE INVESTED WITH JURISDICTION "AT LAW AND IN EQUITY" TO
"MAKE SUCH ORDERS, ISSUE SUCH PROCESS AND ENTER SUCH JUDGMENTS IN
ADDITION TO THOSE SPECIFICALLY PROVIDED FOR AS MAY BE NECESSARY FOR THE
ENFORCEMENT OF THE PROVISIONS OF THIS TITLE."  REFERRING TO THESE
STATUTES, THIS COURT HAS SAID THAT "THE POWER TO ISSUE AN INJUNCTION
WHEN NECESSARY TO PREVENT THE DEFEAT OR IMPAIRMENT OF ITS JURISDICTION
IS  ...  INHERENT IN A COURT OF BANKRUPTCY, AS IT IS IN A DULY
ESTABLISHED COURT OF EQUITY."  CONTINENTAL BANK V. CHICAGO, R.I. & P.
RY., 294 U.S. 648, 675.  CF. LOCAL LOAN CO. V. HUNT, 292 U.S. 234, 240,
241; KLINE V. BURKE CONSTRUCTION CO., 260 U.S. 226, 229; LOONEY V.
EASTERN TEXAS R. CO., 247 U.S. 214, 221.  JURISDICTION TO ADMINISTER
THE ESTATE DRAWS TO ITSELF, WHEN ONCE IT HAS ATTACHED, AN INCIDENTAL OR
ANCILLARY JURISDICTION TO GIVE PROTECTION TO THE ESTATE AGAINST WASTE
OR DISINTEGRATION WHILE FRAUDS UPON ITS INTEGRITY ARE IN PROCESS OF
DISCOVERY.  THIS POWER SO OBVIOUSLY NECESSARY TO THE ATTAINMENT OF THE
ENDS OF JUSTICE HAS BEEN EXERCISED BY THE LOWER FEDERAL COURTS IN A
GREAT VARIETY OF CIRCUMSTANCES.  THERE HAVE BEEN ORDERS DIRECTING
PAYMENT OF MONEYS INTO THE REGISTRY OF THE COURT UNTIL A PLENARY SUIT
CAN BE BROUGHT TO RECOVER THEM (IN RE MITCHELL, 278 FED. 707),
RESTRAINING AN ADVERSE CLAIMANT FROM DISPOSING OF PROPERTY IN ADVANCE
OF A DECREE (IN RE NORRIS, 177 FED. 598; PYLE V. TEXAS TRANSPORT &
TERMINAL CO., 185 FED. 309), AND ENJOINING POSSESSORY ACTIONS THAT
MIGHT JEOPARDIZE RELIEF IN EQUITY.  IN RE REPUBLIC PLUMBING SUPPLY
CORP., 295 FED. 573; CF. BLAKE V. NESBET, 144 FED. 279; IN RE BLAKE,
171 FED. 298; IN RE NATHAN TURIM, INC., 55 F.(2D) 672.  IF SUITS CAN BE
ENJOINED WHEN THEY ARE FOUND TO HAVE A TENDENCY TO EMBARRASS
ADMINISTRATION, A FORTIORI THIS MAY BE DONE WHEN THERE IS A BASIS FOR
THE FEAR THAT THEY WILL BE USED AS INSTRUMENTS OR DEVICES TO RENDER
FRAUD TRIUMPHANT.  NOT IMPROBABLY THE ORDER IN THIS CASE MIGHT BETTER
HAVE IMPOSED A CONDITION THAT A PLENARY SUIT MUST BE BROUGHT WITHIN A
REASONABLE TIME.  THIS DEFECT, IF IT BE ONE, IS NOW OF NO IMPORTANCE,
FOR BY CONCESSION SUCH A SUIT WAS BROUGHT WITHIN A WEEK.  THERE WILL BE
NO OCCASION FOR DELAY IF THE CORPORATION, THE BANKRUPT AND HIS FAMILY
WILL COOPERATE IN WORKING FOR A QUICK DECISION.  IN SUCH CIRCUMSTANCES
THERE CAN BE NO WRONG OR PREJUDICE TO ALL CONTINENT BY POSTPONING ITS
SUIT IN PENNSYLVANIA TO A MORE COMPREHENSIVE AND EFFICIENT REMEDY THAT
WILL PUT CONFLICTING CLAIMS AT REST.  CF. WEHRMAN V. CONKLIN, 155 U.S.
314, 329.  DELAY AND EXPEDITION WILL BE SUBJECT TO THE CONTROL OF
EQUITY.  "IN THAT PREDICAMENT THE MALLEABLE PROCESSES OF COURTS OF
BANKRUPTCY GIVE ASSURANCE OF A REMEDY THAT CAN BE MOULDED AND ADAPTED
TO THE NEEDS OF THE OCCASION."  BROWN V. O'KEEFE, 300 U.S. 598. 

MUCH OF THE ARGUMENT FOR THE RESPONDENT HAS BEEN DIRECTED TO A
SHOWING THAT THE SUIT IN PENNSYLVANIA IS NOT SUBJECT TO RESTRAINT FOR
DEFECT OF JURISDICTION, AND THIS FOR THE REASON THAT THE RES TO BE
AFFECTED - THE SECURITIES HELD BY SPARKS & CO. IN THEIR OFFICE IN
PHILADELPHIA - HAD NOT COME WITHIN THE ACTUAL OR CONSTRUCTIVE
POSSESSION OF THE COURT OF BANKRUPTCY IN NEW JERSEY WHEN THE SUIT WAS
BEGUN TO REMOVE THE CLOUD UPON TITLE.  CF. FORT DEARBORN TRUST &
SAVINGS BANK V. SMALLEY, 298 FED. 45; MOLINA V. MURPHY, 71 F.(2D) 605;
IN RE ADOLF GOBEL, INC., 80 F.(2D) 849.  THE ARGUMENT MISCONCEIVES THE
GROUNDS UPON WHICH THE TRUSTEE LOOKS TO US FOR AID.  THE TRUSTEE DOES
NOT CHALLENGE THE JURISDICTION OF THE FEDERAL COURT IN PENNSYLVANIA, IF
THE WORD JURISDICTION BE TAKEN IN ITS STRICT AND PROPER SENSE.  CF.
STRATON V. NEW, 283 U.S. 318, 321; ISAACS V. HOBBS TIE & TIMBER CO.,
282 U.S. 734, 737, 738.  HE IS NOT SEEKING A WRIT OF PROHIBITION
DIRECTED TO THE COURT ITSELF.  HE IS NOT SEEKING AN INJUNCTION TO
VINDICATE HIS EXCLUSIVE CONTROL OVER A RES IN HIS POSSESSION, OR IN THE
POSSESSION, ACTUAL OR CONSTRUCTIVE, OF THE COURT THAT APPOINTED HIM. 
ISAACS V. HOBBS TIE & TIMBER CO., SUPRA; MURPHY V. JOHN HOFMAN CO., 211
U.S. 562, 568, 569; MORAN V. STURGES, 154 U.S. 256, 274.  WHAT HE SEEKS
IS AN INJUNCTION DIRECTED TO A SUITOR, AND NOT TO ANY COURT, UPON THE
GROUND THAT THE SUITOR IS MISUSING A JURISDICTION WHICH BY HYPOTHESIS
EXISTS, AND CONVERTING IT BY SUCH MISUSE INTO AN INSTRUMENT OF WRONG. 
GAGE V. RIVERSIDE TRUST CO., 86 FED. 984, 998, 999; HIGGINS V.
CALIFORNIA PRUNE & APRICOT GROWERS, 282 FED. 550, 557; COLE V.
CUNNINGHAM, 133 U.S. 107, 112, 117, 118.  SUITS AS WELL AS TRANSFERS
MAY BE THE PROTECTIVE COVERINGS OF FRAUD.  SHAPIRO V. WILGUS, 287 U.S.
348, 355.  WE ARE UNABLE TO YIELD ASSENT TO THE STATEMENT OF THE COURT
BELOW THAT "THE RESTRAINT OF A PROPER PARTY IS LEGALLY TANTAMOUNT TO
THE RESTRAINT OF THE COURT ITSELF."  THE REALITY OF THE DISTINCTION HAS
ILLUSTRATION IN A HOST OF CASES.  2 STORY, EQ. JUR., 14TH ED., SEC.
1195; 5 POMEROY, EQ. JUR., SEC. 2091; COLE V. CUNNINGHAM, SUPRA;
MADISONVILLE TRACTION CO. V. MINING CO., 196 U.S. 239, 245; KESSLER V.
ELDRED, 206 U.S. 285; RICKEY LAND & CATTLE CO. V. MILLER & LUX, 218
U.S. 258; TOLEDO SCALE CO. V. COMPUTING SCALE CO., 261 U.S. 399, 426;
SMITH V. APPLE, 264 U.S. 274, 279.  CF. JUDICIAL CODE, SEC. 265; 28
U.S.C. SEC. 379; BROWN V. PACIFIC MUTUAL LIFE INS. CO., 62 F.(2D) 711,
713; CHICAGO TITLE & TRUST CO. V. FOX THEATRES CORP., 69 F.(2D) 60, 61,
62. 

THE DECREE OF THE COURT OF APPEALS IS REVERSED AND THAT OF THE
DISTRICT COURT AFFIRMED.  REVERSED. 
..END :























OHIO BELL TEL. CO. V. COMM'N., 301 U.S. 292 


NO. 539.  ARGUED APRIL 6, 7, 1937.  - DECIDED APRIL 26, 1937.  - 131 OH.
ST. 539 -  3 N.E.(2D) 475, REVERSED. 


1.  AS BASES FOR AN ORDER REQUIRING A TELEPHONE COMPANY TO REFUND TO
ITS PATRONS "EXCESS" EARNINGS COLLECTED DURING A SERIES OF YEARS, A
STATE COMMISSION VALUED THE COMPANY'S PROPERTY FOR EACH OF THOSE YEARS
BY APPLYING TO THE VALUE IN AN EARLIER YEAR, WHICH IT HAD DETERMINED ON
HEARINGS, PRICE TREND PERCENTAGES SAID TO HAVE BEEN DERIVED FROM
EVIDENCE OF WHICH THE COMMISSION TOOK JUDICIAL NOTICE BUT WHICH IT
WITHHELD FROM ITS RECORDS AND REFUSED TO REVEAL.  - HELD A DENIAL OF
DUE PROCESS OF LAW.  P. 300. 

2.  A FAIR HEARING IS ESSENTIAL TO DUE PROCESS; WITHOUT IT, THERE IS
CONDEMNATION WITHOUT TRIAL.  P. 300. 

3. JUDICIAL NOTICE MAY BE TAKEN OF THE FACT THAT THERE HAS BEEN AN
ECONOMIC DEPRESSION, WITH DECLINE OF MARKET VALUES; BUT JUDICIAL NOTICE
CANNOT BE TAKEN OF THE VALUES OF LAND, LABOR, BUILDINGS AND EQUIPMENT,
WITH THEIR YEARLY FLUCTUATIONS.  P. 300. 

4.  THIS DISTINCTION IS THE MORE IMPORTANT IN CASES WHERE THE EXTENT
OF THE FLUCTUATIONS IS NOT COLLATERALLY INVOLVED BUT IS THE VERY POINT
IN ISSUE.  P. 301. 

5.  TAKING OF JUDICIAL NOTICE HAS NO OTHER EFFECT THAN TO RELIEVE ONE
OF THE PARTIES TO A CONTROVERSY OF THE BURDEN OF RESORTING TO THE USUAL
FORMS OF EVIDENCE; HIS OPPONENT IS AT LIBERTY TO DISPUTE THE MATTER BY
EVIDENCE.  P. 301. 

6.  TO PRESS THE DOCTRINE OF JUDICIAL NOTICE TO THE EXTENT ATTEMPTED
IN THIS CASE AND TO DO THAT RETROACTIVELY AFTER THE CASE HAD BEEN
SUBMITTED, WOULD BE TO TURN THE DOCTRINE INTO A PRETEXT FOR DISPENSING
WITH A TRIAL.  P. 302. 

7.  FROM THE STANDPOINT OF DUE PROCESS - THE PROTECTION OF THE
INDIVIDUAL AGAINST ARBITRARY ACTION - A DEEPER VICE THAN THE
UNREASONABLE EXTENSION OF JUDICIAL NOTICE IS IN THIS CASE THE
CONCEALMENT FROM THE PARTY AFFECTED OF THE PARTICULAR OR EVIDENTIAL
FACTS OF WHICH JUDICIAL NOTICE WAS TAKEN BY THE COMMISSION AND ON WHICH
IT RESTED ITS CONCLUSION.  P. 302. 

8.  UNDER THE STATUTES OF OHIO NO PROVISION IS MADE FOR A REVIEW OF
THE ORDER OF THE PUBLIC UTILITIES COMMISSION BY A SEPARATE OR
INDEPENDENT SUIT.  THE SOLE METHOD OF REVIEW IS BY PETITION IN ERROR TO
THE SUPREME COURT OF THE STATE, WHICH CONSIDERS BOTH THE LAW AND THE
FACTS UPON THE RECORD MADE BELOW, AND NOT UPON NEW EVIDENCE.  IF, AS IN
THIS CASE, THAT COURT MERELY ACCEPTS FINDINGS OF THE COMMISSION
ATTRIBUTED TO JUDICIAL NOTICE AND UNSUPPORTED BY ANY KNOWN OR KNOWABLE
EVIDENCE, JUDICIAL REVIEW IS DENIED.  P. 303. 

9.  IN VIEW OF THE POWER AND DISCRETION REPOSED IN REGULATORY
COMMISSIONS, THE INEXORABLE SAFEGUARD OF A FAIR AND OPEN HEARING MUST
BE MAINTAINED IN ITS INTEGRITY IN THEIR PROCEEDINGS.  P. 304. 

10.  THE RIGHT TO SUCH A HEARING IS ONE OF THE RUDIMENTS OF FAIR PLAY
ASSURED TO EVERY LITIGANT BY THE FOURTEENTH AMENDMENT AS A MINIMAL
REQUIREMENT.  THERE CAN BE NO COMPROMISE ON THE FOOTING OF CONVENIENCE
OR EXPEDIENCY, OR BECAUSE OF A NATURAL DESIRE TO BE RID OF HARASSING
DELAY, WHEN THAT MINIMAL REQUIREMENT HAS BEEN NEGLECTED OR IGNORED.  P.
304. 

11.  THE APPELLANT IN THIS CASE HAS NOT ESTOPPED ITSELF FROM
OBJECTING TO THE USE OF PRICE TRENDS GATHERED IN ITS ABSENCE.  P. 306. 

OHIO BELL TELEPHONE CO. V. PUBLIC UTILITIES COMMISSION OF OHIO. 

APPEAL FROM THE SUPREME COURT OF OHIO. 

APPEAL FROM A JUDGMENT SUSTAINING ON APPEAL AN ORDER OF THE PUBLIC
UTILITIES COMMISSION OF OHIO REQUIRING THE TELEPHONE COMPANY TO REFUND
"EXCESS EARNINGS" TO ITS PATRONS. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

THE RATES CHARGEABLE BY THE APPELLANT, THE OHIO BELL TELEPHONE
COMPANY, FOR INTRASTATE TELEPHONE SERVICE TO SUBSCRIBERS AND PATRONS IN
OHIO ARE THE SUBJECT-MATTER OF THIS CONTROVERSY. 

APPELLANT WAS REORGANIZED IN SEPTEMBER, 1921, BY CONSOLIDATION WITH
THE OHIO STATE TELEPHONE COMPANY, TILL THEN A COMPETITOR.  SOON
AFTERWARDS IT FILED WITH THE PUBLIC UTILITIES COMMISSION OF THE STATE
SCHEDULES OF NEW RATES TO BE CHARGED IN THOSE COMMUNITIES WHERE AN
INCREASE WAS DESIRED FOR THE UNIFIED SERVICE.  EXCEPT IN THE CASE OF
TOLL CHARGES THE RATES WERE NOT STATE-WIDE, BUT WERE SEPARATELY STATED
FOR EACH OF THE COMPANY'S EXCHANGES, OF WHICH THERE WERE MANY.  BY THE
STATUTES THEN IN FORCE (THE ROBINSON LAW, PASSED DECEMBER 19, 1919, 108
OHIO LAWS 1094, AS AMENDED BY THE PENCE LAW, PASSED APRIL 4, 1923, 110
OHIO LAWS 366), THE OPERATION OF AN INCREASE MIGHT BE SUSPENDED FOR 120
DAYS, AT THE END OF WHICH TIME THE RATE WAS TO GO INTO EFFECT UPON THE
FILING OF A BOND FOR THE REPAYMENT TO CONSUMERS OF SUCH PORTION OF THE
INCREASED RATE AS THE COMMISSION UPON FINAL HEARING SHOULD DETERMINE TO
HAVE BEEN EXCESSIVE, WITH INTEREST THEREON.  CONSTRUING THESE STATUTES
THE OHIO COURTS HAVE HELD THAT A REFUND MUST BE LIMITED TO RATES
COLLECTED UNDER A BOND, JURISDICTION BEING DISCLAIMED WHEN THAT
CONDITION WAS NOT SATISFIED.  LIMA V. PUBLIC UTILITIES COMM'N, 106 OHIO
ST. 379, 386; 140 N.E. 147; GREAT MIAMI VALLEY TAXPAYERS ASSN. V.
PUBLIC UTILITIES COMM'N, 131 OHIO ST. 285, 286; 2 N.E.(2D) 777.  SOME
OF THE NEW EXCHANGE SCHEDULES WERE THE SUBJECT OF PROTESTS, AND IN
PROCEEDINGS TO REVISE THEM (KNOWN AS PENCE LAW PROCEEDINGS) WERE MADE
EFFECTIVE BY BONDS, A SEPARATE ONE FOR EACH EXCHANGE.  PROTEST WAS ALSO
AIMED AT THE NEW SCHEDULE FOR TOLL SERVICE WHICH WAS TO APPLY
THROUGHOUT THE STATE.  ON THE OTHER HAND, SCHEDULES FOR OTHER EXCHANGES
BECAME EFFECTIVE WITHOUT PROTEST AND THEREFORE WITHOUT BOND, AND ARE
NOT NOW AT ISSUE. 

BY OCTOBER 1924, THIRTY-ONE PENCE LAW PROCEEDINGS AIMED AT SEPARATE
EXCHANGES HAD BEEN BEGUN, BUT HAD NOT BEEN FULLY TRIED.  ALREADY
SEVERAL THOUSAND PAGES OF TESTIMONY HAD BEEN TAKEN AND MANY EXHIBITS
RECEIVED IN EVIDENCE.  SOON AFTERWARDS, TWELVE ADDITIONAL PROCEEDINGS
WERE BEGUN, MAKING THE TOTAL NUMBER FORTY-THREE, EXCLUSIVE OF THE TOLL
CASE.  TWO OTHER PROCEEDINGS WERE STARTED LATER ON.  WHILE THE NUMBER
STOOD AT FORTY-THREE, THE COMMISSION OF ITS OWN MOTION, BY ORDER DATED
OCTOBER 14, 1924, DIRECTED A COMPANY-WIDE INVESTIGATION OF APPELLANT'S
PROPERTY AND RATES, AND CONSOLIDATED THE BOND CASES THEREWITH.  THE
ORDER RECITES THAT IN ALL THE PENDING PROCEEDINGS THE IMPORTANT ISSUES
ARE IDENTICAL, AND THAT A SINGLE CONSOLIDATED CASE WILL ENABLE RATES TO
BE DETERMINED FOR ALL SERVICES WITHIN THE STATE AT A MINIMUM
EXPENDITURE OF TIME AND MONEY.  ACCORDINGLY, THE COMPANY WAS REQUIRED
TO FILE WITH THE COMMISSION ON OR BEFORE DECEMBER 1, 1924, A COMPLETE
INVENTORY OF ALL ITS PROPERTY, USED AND USEFUL IN ITS BUSINESS, AND
UPON THE FILING OF SUCH INVENTORY, THE CONSOLIDATED CASE WAS TO
"PROCEED TO A HEARING FOR THE DETERMINATION OF THE FAIR VALUE OF SAID
PROPERTY AND OF THE JUST AND REASONABLE RATES FOR THE SERVICE THEREBY
TO BE FURNISHED BY SAID COMPANY TO ITS PATRONS THROUGHOUT THE STATE OF
OHIO."  THE STATEWIDE INVESTIGATION THUS INITIATED, AS DISTINGUISHED
FROM THE PENCE LAW PROCEEDINGS CONSOLIDATED THEREWITH, HAD ITS LEGAL
BASIS IN PROVISIONS OF THE GENERAL CODE OF OHIO (SEC. 499-8, 499-9),
AND ITS SCOPE WAS CONFINED TO THE RATES CHARGEABLE IN THE FUTURE (SEC.
614-23), THE PENCE LAW BEING THE BASIS FOR ANY REFUND OF RATES
COLLECTED IN THE PAST.  THE STATUTE (SEC. 499-9) MAKES IT MANDATORY
THAT IN FIXING RATES FOR THE FUTURE, THE COMMISSION SHALL ASCERTAIN THE
VALUE OF THE PROPERTY AS "OF A DATE CERTAIN" TO BE NAMED.  THE DATE
ADOPTED FOR THAT PURPOSE WAS JUNE 30, 1925. 

THE COMPANY FILED AN INVENTORY AS REQUIRED BY THE COMMISSION WITH
SUPPLEMENTAL INVENTORIES EVERY SIX MONTHS THEREAFTER SHOWING ADDITIONS
AND RETIREMENTS.  A LONG INVESTIGATION FOLLOWED, THE EVIDENCE BEING
DIRECTED IN THE MAIN TO THE VALUE OF THE PROPERTY ON THE BASIS OF
HISTORICAL COST AND COST OF REPRODUCTION, AND TO THE DEDUCTIONS
CHARGEABLE TO GROSS REVENUES FOR DEPRECIATION RESERVE AND OPERATING
EXPENSES GENERALLY.  AS EARLY AS FEBRUARY, 1927, THE CASE WAS SUBMITTED
TO THE COMMISSION FOR THE FIXING OF A TENTATIVE VALUE AS OF THE DATE
CERTAIN, A TENTATIVE VALUE BEING SUBJECT UNDER THE OHIO CODE TO PROTEST
AND READJUSTMENT.  AT THE REQUEST OF THE ATTORNEY GENERAL, HOWEVER, THE
PROCEEDING WAS REOPENED AND NEW EVIDENCE INTRODUCED.  AT LAST, ON
JANUARY 10, 1931, THE COMMISSION ANNOUNCED ITS TENTATIVE CONCLUSION. 
THE VALUATION THEN ARRIVED AT WAS $104,282,735, FOR ALL THE PROPERTY
WITHIN THE STATE, WHETHER USED IN INTERSTATE OR IN INTRASTATE
BUSINESS.  PROTESTS WERE FILED BOTH BY THE COMPANY AND BY THE STATE AND
MUNICIPALITIES.  THEY WERE FOLLOWED BY NEW HEARINGS.  ON JANUARY 16,
1934, THE COMMISSION MADE ITS FINDINGS AND ORDER SETTING FORTH WHAT
PURPORTS TO BE A FINAL VALUATION.  THE INTRASTATE PROPERTY AS OF JUNE
30, 1925, WAS VALUED AT $93,707,488; THE TOTAL PROPERTY, INTERSTATE AND
INTRASTATE, AT $96,422,276. 

THE COMMISSION DID NOT CONFINE ITSELF, HOWEVER, TO A VALUATION OF THE
PROPERTY AS OF THE DATE CERTAIN.  IT UNDERTOOK ALSO TO FIX A VALUATION
FOR EACH OF THE YEARS 1926 TO 1933 INCLUSIVE.  FOR THIS PURPOSE IT TOOK
JUDICIAL NOTICE OF PRICE TRENDS DURING THOSE YEARS, MODIFYING THE VALUE
WHICH IT HAD FOUND AS OF THE DATE CERTAIN BY THE PERCENTAGE OF DECLINE
OR RISE APPLICABLE TO THE YEARS THEREAFTER.  THE FIRST WARNING THAT IT
WOULD DO THIS CAME IN 1934 WITH THE FILING OF ITS REPORT.  "THE TREND
OF LAND VALUATION WAS ASCERTAINED," ACCORDING TO THE FINDINGS, "FROM
EXAMINATION OF THE TAX VALUE IN COMMUNITIES WHERE THE COMPANY HAD ITS
LARGEST REAL ESTATE HOLDINGS."  "FOR BUILDING TRENDS RESORT WAS HAD TO
PRICE INDICES OF THE ENGINEERING NEWS RECORD, A RECOGNIZED MAGAZINE IN
THE FIELD OF ENGINEERING CONSTRUCTION."  "LABOR TRENDS WERE DEVELOPED
FROM THE SAME SOURCES."  REFERENCE WAS MADE ALSO TO THE FINDINGS OF A
FEDERAL COURT IN ILLINOIS (ILLINOIS BELL TELEPHONE CO. V. GILBERT, 3
F.SUPP.  595, 603) AS TO THE PRICE LEVELS UPON SALES OF APPARATUS AND
EQUIPMENT BY WESTERN ELECTRIC, AN AFFILIATED CORPORATION.  THE FINDINGS
WERE NOT IN EVIDENCE, THOUGH MUCH OF THE TESTIMONY AND EXHIBITS ON
WHICH THEY RESTED HAD BEEN RECEIVED BY STIPULATION FOR CERTAIN LIMITED
PURPOSES, AND MAINLY TO DISCOVER WHETHER THE PRICES PAID TO THE
AFFILIATE WERE SWOLLEN BEYOND REASON.*CF. DAYTON POWER & LIGHT CO. V.
PUBLIC UTILITIES COMM'N, 292 U.S. 290, 295.  THE COMMISSION CONSULTED
THESE FINDINGS AS INDICATIVE OF MARKET TRENDS AND LEANED UPON THEM
HEAVILY.  BY RESORT TO THESE AND COGNATE SOURCES, THE VALUE AT THE
BEGINNING OF 1926 WAS FIXED AT 98.73% OF THE VALUE AT THE DATE CERTAIN;
THE 1927 VALUE AT 95.7%; THE 1928 VALUE AT 95%; THE 1929 VALUE AT
96.3%; 1930 VALUE AT 92.2%; THE 1931 VALUE AT 86.6%; THE 1932 VALUE AT
76.8%; THE 1933 VALUE AT 79.1%.  UPON THAT BASIS THE COMPANY WAS FOUND
TO HAVE BEEN IN RECEIPT OF EXCESS EARNINGS OF $13,289,172, DISTRIBUTED
AS FOLLOWS:  FOR 1925, $1,822,647; FOR 1926, $2,041,483; FOR 1927,
$1,986,610; FOR 1928, $1,925,301; FOR 1929, $1,463,347; FOR 1930,
$1,481,689; FOR 1931, $1,659,760; FOR 1932, $908,335; FOR 1933,
NOTHING.  THE EXCESS WAS ARRIVED AT BY FIGURING A RETURN OF 7% UPON THE
VALUE AS A REASONABLE RATE FOR THE YEARS 1925 TO 1929, INCLUSIVE; 6.5%
FOR THE YEARS 1930 AND 1931; AND 5.5% FOR THE YEARS 1932 AND 1933. 
THERE BEING NO EXCESS REVENUE FOR THE YEAR 1933, THE LAST YEAR COVERED
BY THE REPORT, THE COMMISSION DID NOT FIX ANY PERCENTAGE OF REDUCTION
FOR THE RATES IN FUTURE YEARS.  IT DID, HOWEVER, PRESCRIBE A REFUND OF
THE FULL AMOUNT OF THE EXCESS FOR THE YEARS IN WHICH EXCESS EARNINGS
WERE FOUND TO HAVE BEEN REALIZED.  THE STATEWIDE PROCEEDING TO FIX
RATES FOR THE FUTURE ON THE BASIS OF A DATE CERTAIN WAS THUS
TRANSFORMED FINALLY INTO A REFUND PROCEEDING, SIMILAR IN FUNCTION TO
PROCEEDINGS UNDER THE PENCE LAW FOR THE REFUND OF CHARGES COLLECTED
UNDER BONDS.  THE REPORT OF THE COMMISSION DETERMINING THE EXCESS WAS
SIGNED BY A MAJORITY OF THE MEMBERS, THE CHAIRMAN DISSENTING.  IT WAS
ACCOMPANIED BY AN ORDER SIMILAR IN TENOR. 

*THE STIPULATION STATES THAT THE TESTIMONY AND EXHIBITS "SHALL,
HOWEVER, BE CONSIDERED UPON FOUR ISSUES INVOLVED IN THIS CAUSE AND FOUR
ONLY, VIZ: 

"1.  THE EARNINGS OF THE WESTERN ELECTRIC AND THE REASONABLENESS OF
SUCH EARNINGS. 

"2.  THE COST TO THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY OF
RENDERING SERVICES UNDER THE LICENSE CONTRACT AND THE REASONABLE AMOUNT
WHICH SHOULD BE ALLOCATED IN THAT RESPECT TO THE OHIO BELL TELEPHONE
COMPANY. 

"3.  THE SEPARATION AND APPORTIONMENT OF THE PROPERTY, REVENUES AND
EXPENSES OF THE OHIO BELL TELEPHONE COMPANY AS BETWEEN ITS INTRASTATE
AND INTERSTATE PROPERTY, REVENUES AND EXPENSES. 

"4.  RATE OF RETURN." 

THE COMPANY PROTESTED AND MOVED FOR A REHEARING.  IN ITS PROTEST IT
STATED THAT THE TREND PERCENTAGES ACCEPTED IN THE FINDINGS AS MARKING A
DECLINE IN VALUES DID NOT COME FROM ANY OFFICIAL SOURCES WHICH THE
COMMISSION HAD THE RIGHT TO NOTICE JUDICIALLY; THAT THEY HAD NOT BEEN
INTRODUCED IN EVIDENCE; THAT THE COMPANY HAD NOT BEEN GIVEN AN
OPPORTUNITY TO EXPLAIN OR REBUT THEM; AND THAT BY THEIR USE THE
COMMISSION HAD DENIED A FAIR HEARING IN CONTRAVENTION OF THE
REQUIREMENTS OF THE FOURTEENTH AMENDMENT.  DEMAND WAS MADE THAT AN
OPPORTUNITY BE CONCEDED FOR EXPLANATION AND REBUTTAL; DEMAND WAS MADE
ALSO THAT THE COMPANY BE PERMITTED TO SUBMIT EVIDENCE SHOWING
SEPARATELY FOR EACH YEAR THE FAIR VALUE OF ITS PROPERTY, ITS REVENUES,
EXPENSES AND NET INCOME IN EACH OF THE SEVERAL CASES WHEREIN RATES HAD
BEEN COLLECTED UNDER BOND.  THIS LAST WAS A RENEWAL OF A DEMAND WHICH
HAD BEEN MADE SEVERAL TIMES IN THE COURSE OF THE INQUIRY, AS THE
COMMISSION IN ITS REPORT CONCEDES.  BY ORDER DATED MARCH 1, 1934, THE
PROTESTS WERE OVERRULED, AND THE DEMANDS REJECTED.  BY ORDER DATED JULY
5 OF THE SAME YEAR THE COMMISSION MODIFIED TO SOME EXTENT ITS FINDINGS
AS TO THE EXCESS INCOME REFERABLE TO BONDED RATES, AND DIRECTED THE
COMPANY TO SHOW CAUSE WHY REFUNDS OF THE EXCESS SHOULD NOT BE MADE UPON
THAT BASIS.  AGAIN THERE WAS PROTEST WITH A RENEWAL OF THE REQUEST THAT
EVIDENCE BE RECEIVED ALONG THE LINES ALREADY INDICATED.  AGAIN THE
COMMISSION REAFFIRMED ITS PREVIOUS POSITION. 

THE OUTCOME OF THESE MANOEUVRES WAS THE FILING OF A FINAL ORDER,
DATED SEPTEMBER 6, 1934, APPORTIONING THE EXCESS INCOME BETWEEN BONDED
AND NON-BONDED RATES BY ALLOCATING TO THE FORMER CLASS A TOTAL OF
$11,423,137 FOR EXCHANGE SUBSCRIBERS AND $409,127 FOR TOLL PATRONS (IN
ALL $11,832,264) AND DIRECTING PAYMENT ACCORDINGLY.  DISTRIBUTION WAS
TO BE MADE AMONG THE SEVERAL EXCHANGES UPON THE BASIS OF THE PERCENTAGE
RELATION OF THE GROSS EXCHANGE REVENUES IN THE EXCHANGES WHERE BONDS
WERE IN EFFECT TO THE TOTAL GROSS EXCHANGE REVENUES, BONDED AND
UNBONDED.  IF EVEN A SINGLE RATE IN A PARTICULAR EXCHANGE, E.G., IN THE
CITY OF CLEVELAND, HAD BEEN COLLECTED UNDER BOND, ALL THE REVENUES OF
THAT EXCHANGE WERE INCLUDED IN RECKONING THE PERCENTAGE OF THE TOTAL
THAT SHOULD GO TO THE CLEVELAND CUSTOMERS.  SO MUCH OF THE EXCESS AS
WAS NOT USED UP IN THAT WAY WAS APPORTIONED TO THE TOLLS.  THIS METHOD
OF ALLOCATION WAS MADE THE SUBJECT OF ANOTHER PROTEST, THE COMPANY
INSISTING THAT IT WAS ARBITRARY AND UNEQUAL AND A DENIAL OF DUE
PROCESS.  PETITIONS IN ERROR WERE FILED WITH THE SUPREME COURT OF OHIO
IN ACCORDANCE WITH THE STATE PRACTICE (GENERAL CODE, SEC. 544 ET SEQ.)
TO REVIEW THE FINAL ORDER OF SEPTEMBER 6, 1934, AND THE SEVERAL
INTERMEDIATE ORDERS SUPPORTING IT.  THERE WAS TIMELY AND ADEQUATE
ASSERTION OF THE INFRINGEMENT OF THE PETITIONER'S RIGHTS UNDER THE
FOURTEENTH AMENDMENT.  THE SUPREME COURT OF OHIO AFFIRMED WITH AN
OPINION PER CURIAM.  131 OHIO ST. 539; 3 N.E.(2D) 475.  THE CASE IS
HERE UPON APPEAL.  JUDICIAL CODE, SEC. 237, 28 U.S.C. SEC. 344. 

FIRST:  THE FUNDAMENTALS OF A TRIAL WERE DENIED TO THE APPELLANT WHEN
RATES PREVIOUSLY COLLECTED WERE ORDERED TO BE REFUNDED UPON THE
STRENGTH OF EVIDENTIAL FACTS NOT SPREAD UPON THE RECORD. 

THE COMMISSION HAD GIVEN NOTICE THAT THE VALUE OF THE PROPERTY WOULD
BE FIXED AS OF A DATE CERTAIN.  EVIDENCE DIRECTED TO THE VALUE AT THAT
TIME HAD BEEN LAID BEFORE THE TRIERS OF THE FACTS IN THOUSANDS OF
PRINTED PAGES.  TO MAKE THE PICTURE MORE COMPLETE, EVIDENCE HAD BEEN
GIVEN AS TO THE VALUE AT COST OF ADDITIONS AND RETIREMENTS.  WITHOUT
WARNING OR EVEN THE HINT OF WARNING THAT THE CASE WOULD BE CONSIDERED
OR DETERMINED UPON ANY OTHER BASIS THAN THE EVIDENCE SUBMITTED, THE
COMMISSION CUT DOWN THE VALUES FOR THE YEARS AFTER THE DATE CERTAIN
UPON THE STRENGTH OF INFORMATION SECRETLY COLLECTED AND NEVER YET
DISCLOSED.  THE COMPANY PROTESTED.  IT ASKED DISCLOSURE OF THE
DOCUMENTS INDICATIVE OF PRICE TRENDS, AND AN OPPORTUNITY TO EXAMINE
THEM, TO ANALYZE THEM, TO EXPLAIN AND TO REBUT THEM.  THE RESPONSE WAS
A CURT REFUSAL.  UPON THE STRENGTH OF THESE UNKNOWN DOCUMENTS REFUNDS
HAVE BEEN ORDERED FOR SUMS MOUNTING INTO MILLIONS, THE COMMISSION
REPORTING ITS CONCLUSION, BUT NOT THE UNDERLYING PROOFS.  THE PUTATIVE
DEBTOR DOES NOT KNOW THE PROOFS TODAY.  THIS IS NOT THE FAIR HEARING
ESSENTIAL TO DUE PROCESS.  IT IS CONDEMNATION WITHOUT TRIAL.    AN
ATTEMPT WAS MADE BY THE COMMISSION AND AGAIN BY THE STATE COURT TO
UPHOLD THIS DECISION WITHOUT EVIDENCE AS AN INSTANCE OF JUDICIAL
NOTICE.  INDEED, DECISIONS OF THIS COURT WERE CITED (ATCHISON, T. &
S.F. RY. CO. V. UNITED STATES, 284 U.S. 248, 260; DAYTON POWER & LIGHT
CO. V. PUBLIC UTILITIES COMM'N, SUPRA, P. 311; CENTRAL KENTUCKY NATURAL
GAS CO. V. RAILROAD COMMISSION, 290 U.S. 264, 274, 275) AS GIVING
SUPPORT TO THE NEW DOCTRINE THAT THE VALUES OF LAND AND LABOR AND
BUILDINGS AND EQUIPMENT, WITH ALL THEIR YEARLY FLUCTUATIONS, NO LONGER
CALL FOR EVIDENCE.  OUR OPINIONS HAVE BEEN MUCH MISREAD IF THEY HAVE
BEEN THOUGHT TO POINT THAT WAY.  COURTS TAKE JUDICIAL NOTICE OF MATTERS
OF COMMON KNOWLEDGE.  5 WIGMORE, EVIDENCE, SECS. 2571, 2580, 2583;
THAYER, PRELIMINARY TREATISE ON EVIDENCE, PP. 277, 302.  THEY TAKE
JUDICIAL NOTICE THAT THERE HAS BEEN A DEPRESSION, AND THAT A DECLINE OF
MARKET VALUES IS ONE OF ITS CONCOMITANTS.  ATCHISON, T. & S.F. RY. CO.
V. UNITED STATES, SUPRA; DAYTON POWER & LIGHT CO. V. PUBLIC UTILITIES
COMM'N, SUPRA; CENTRAL KENTUCKY NATURAL GAS CO. V. RAILROAD COMMISSION,
SUPRA.  HOW GREAT THE DECLINE HAS BEEN FOR THIS INDUSTRY OR THAT, FOR
ONE MATERIAL OR ANOTHER, IN THIS YEAR OR THE NEXT, CAN BE KNOWN ONLY TO
THE EXPERTS, WHO MAY EVEN DIFFER AMONG THEMSELVES.  FOR ILLUSTRATION, A
COURT TAKES JUDICIAL NOTICE OF THE FACT THAT CONFEDERATE MONEY
DEPRECIATED IN VALUE DURING THE WAR BETWEEN THE STATES (WOOD V. COOPER,
2 HEISK.  (TENN.)  441, 447; HIX V. HIX, 25 W. VA. 481, 484, 485), BUT
NOT OF THE EXTENT OF THE DEPRECIATION AT A GIVEN TIME AND PLACE. 
MODAWELL V. HOLMES, 40 ALA. 391, 405.  CF. FEEMSTER V. RINGO, 5 T.B.
MUNROE (KY.)  336, 337; BAXTER V. MCDONNELL, 155 N.Y. 83, 93; 49 N.E.
667.  THE DISTINCTION IS THE MORE IMPORTANT IN CASES WHERE AS HERE THE
EXTENT OF THE FLUCTUATIONS IS NOT COLLATERALLY INVOLVED BUT IS THE VERY
POINT IN ISSUE.  MOREOVER, NOTICE, EVEN WHEN TAKEN, HAS NO OTHER EFFECT
THAN TO RELIEVE ONE OF THE PARTIES TO A CONTROVERSY OF THE BURDEN OF
RESORTING TO THE USUAL FORMS OF EVIDENCE.  WIGMORE, EVIDENCE, SEC.
2567; 1 GREENLEAF, EVIDENCE, 16TH ED., P. 18.  "IT DOES NOT MEAN THAT
THE OPPONENT IS PREVENTED FROM DISPUTING THE MATTER BY EVIDENCE IF HE
BELIEVES IT DISPUTABLE."  IBID.  CF. SHAPLEIGH V. MIER, 299 U.S. 468. 
SUCH AT LEAST IS THE GENERAL RULE, TO BE ADHERED TO IN THE ABSENCE OF
EXCEPTIONAL CONDITIONS.  HERE THE CONTENTION WOULD BE FUTILE THAT THE
PRECISE AMOUNT OF THE DECLINE IN VALUES WAS SO DETERMINATE OR NOTORIOUS
IN EACH AND EVERY YEAR BETWEEN 1925 AND 1933 AS TO BE BEYOND THE RANGE
OF QUESTION.  SO MUCH IS INDEED CONCEDED ON THE FACE OF THE REPORT
ITSELF.  NO RATIONAL CONCEPT OF NOTORIETY WILL INCLUDE THESE VARIABLE
ELEMENTS.  TRUE, THE CATEGORY IS NOT A CLOSED ONE.  "THE PRECEDENTS OF
FORMER JUDGES, IN DECLINING TO NOTICE OR ASSENTING TO NOTICE SPECIFIC
FACTS, DO NOT RESTRICT THE PRESENT JUDGE FROM NOTICING A NEW FACT,
PROVIDED ONLY THAT THE NEW FACT IS NOTORIOUS TO THE COMMUNITY."  5
WIGMORE, EVIDENCE, SEC. 2583.  EVEN SO, TO PRESS THE DOCTRINE OF
JUDICIAL NOTICE TO THE EXTENT ATTEMPTED IN THIS CASE AND TO DO THAT
RETROACTIVELY AFTER THE CASE HAD BEEN SUBMITTED, WOULD BE TO TURN THE
DOCTRINE INTO A PRETEXT FOR DISPENSING WITH A TRIAL. 

WHAT WAS DONE BY THE COMMISSION IS SUBJECT, HOWEVER, TO AN OBJECTION
EVEN DEEPER.  CF. BROWN V. NEW JERSEY, 175 U.S. 172, 174, 175; WEST V.
LOUISIANA, 194 U.S. 258, 262, 263.  THERE HAS BEEN MORE THAN AN
EXPANSION OF THE CONCEPT OF NOTORIETY BEYOND REASONABLE LIMITS.  FROM
THE STANDPOINT OF DUE PROCESS - THE PROTECTION OF THE INDIVIDUAL
AGAINST ARBITRARY ACTION - A DEEPER VICE IS THIS, THAT EVEN NOW WE DO
NOT KNOW THE PARTICULAR OR EVIDENTIAL FACTS OF WHICH THE COMMISSION
TOOK JUDICIAL NOTICE AND ON WHICH IT RESTED ITS CONCLUSION.  NOT ONLY
ARE THE FACTS UNKNOWN; THERE IS NO WAY TO FIND THEM OUT.  WHEN PRICE
LISTS OR TRADE JOURNALS OR EVEN GOVERNMENT REPORTS ARE PUT IN EVIDENCE
UPON A TRIAL, THE PARTY AGAINST WHOM THEY ARE OFFERED MAY SEE THE
EVIDENCE OR HEAR IT AND PARRY ITS EFFECT.  EVEN IF THEY ARE COPIED IN
THE FINDINGS WITHOUT PRELIMINARY PROOF, THERE IS AT LEAST AN
OPPORTUNITY IN CONNECTION WITH A JUDICIAL REVIEW OF THE DECISION TO
CHALLENGE THE DEDUCTIONS MADE FROM THEM.  THE OPPORTUNITY IS EXCLUDED
HERE.  THE COMMISSION, WITHHOLDING FROM THE RECORD THE EVIDENTIAL FACTS
THAT IT HAS GATHERED HERE AND THERE, CONTENTS ITSELF WITH SAYING THAT
IN GATHERING THEM IT WENT TO JOURNALS AND TAX LISTS, AS IF A JUDGE WERE
TO TELL US, "I LOOKED AT THE STATISTICS IN THE LIBRARY OF CONGRESS, AND
THEY TEACH ME THUS AND SO."  THIS WILL NEVER DO IF HEARINGS AND APPEALS
ARE TO BE MORE THAN EMPTY FORMS. 

WE HAVE POINTED OUT ELSEWHERE THAT UNDER THE STATUTES OF OHIO NO
PROVISION IS MADE FOR A REVIEW OF THE ORDER OF THE COMMISSION BY A
SEPARATE OR INDEPENDENT SUIT.  WEST OHIO GAS CO. V. PUBLIC UTILITIES
COMM'N (NO. 1), 294 U.S. 63, 68.  A DIFFERENT QUESTION WOULD BE HERE IF
SUCH A SUIT COULD BE MAINTAINED WITH AN INTERMEDIATE SUSPENSION OF THE
ADMINISTRATIVE RULING.  PORTER V. INVESTORS SYNDICATE, 286 U.S. 461,
470, 471; UNITED STATES V. ILLINOIS CENTRAL R. CO., 291 U.S. 457, 463;
NICKEY V. MISSISSIPPI, 292 U.S. 393, 396; WELLS, FARGO & CO. V. NEVADA,
248 U.S. 165, 168.  CF. NORWEGIAN NITROGEN CO. V. UNITED STATES, 288
U.S. 294, 318, 319.  IN OHIO THE SOLE METHOD OF REVIEW IS BY PETITION
IN ERROR TO THE SUPREME COURT OF THE STATE, WHICH CONSIDERS BOTH THE
LAW AND THE FACTS UPON THE RECORD MADE BELOW, AND NOT UPON NEW
EVIDENCE.  IN SUCH CIRCUMSTANCES JUDICIAL REVIEW WOULD BE NO LONGER A
REALITY IF THE PRACTICE FOLLOWED IN THIS CASE WERE TO RECEIVE THE STAMP
OF REGULARITY.  TO PUT THE PROBLEM MORE CONCRETELY:  HOW WAS IT
POSSIBLE FOR THE APPELLATE COURT TO REVIEW THE LAW AND THE FACTS AND
INTELLIGENTLY DECIDE THAT THE FINDINGS OF THE COMMISSION WERE SUPPORTED
BY THE EVIDENCE WHEN THE EVIDENCE THAT IT APPROVED WAS UNKNOWN AND
UNKNOWABLE?  IN EXPRESSING THAT APPROVAL THE COURT DID NOT MEAN THAT,
TRAVELING BEYOND THE RECORD, IT HAD CONSULTED PRICE LISTS FOR ITSELF
AND HAD REACHED ITS OWN CONCLUSION AS TO THE PERCENTAGE OF DECLINE IN
VALUE FROM 1925 ONWARDS.  IT DID NOT EVEN MEAN THAT IT HAD LOOKED AT
THE PARTICULAR LISTS MADE USE OF BY THE COMMISSION, FOR NO ONE KNOWS
WHAT THEY WERE IN ANY PRECISE OR CERTAIN WAY.  NOWHERE IN THE OPINION
IS THERE EVEN THE HINT OF SUCH A SEARCH.  WHAT THE SUPREME COURT OF
OHIO DID WAS TO TAKE THE WORD OF THE COMMISSION AS TO THE OUTCOME OF A
SECRET INVESTIGATION, AND LET IT GO AT THAT.  "A HEARING IS NOT
JUDICIAL, AT LEAST IN ANY ADEQUATE SENSE, UNLESS THE EVIDENCE CAN BE
KNOWN."  WEST OHIO GAS CO. V. PUBLIC UTILITIES COMM'N (NO. 1), SUPRA,
P. 69.  CF. INTERSTATE COMMERCE COMM'N V. LOUISVILLE & N.R. CO., 227
U.S. 88, 91; UNITED STATES V. ABILENE & SOUTHERN RY. CO., 265 U.S. 274,
288; CHICAGO JUNCTION CASE, 264 U.S. 258, 263, 264, 265. 

REGULATORY COMMISSIONS HAVE BEEN INVESTED WITH BROAD POWERS WITHIN
THE SPHERE OF DUTY ASSIGNED TO THEM BY LAW.  EVEN IN QUASI-JUDICIAL
PROCEEDINGS THEIR INFORMED AND EXPERT JUDGMENT EXACTS AND RECEIVES A
PROPER DEFERENCE FROM COURTS WHEN IT HAS BEEN REACHED WITH DUE
SUBMISSION TO CONSTITUTIONAL RESTRAINTS.  WEST OHIO GAS CO. V. PUBLIC
UTILITIES COMM'N (NO. 1), SUPRA, P. 70; WEST OHIO GAS CO. V. PUBLIC
UTILITIES COMM'N (NO. 2), 294 U.S. 79; LOS ANGELES GAS & ELECTRIC CORP.
V. RAILROAD COMMISSION, 289 U.S. 287, 304.  INDEED, MUCH THAT THEY DO
WITHIN THE REALM OF ADMINISTRATIVE DISCRETION IS EXEMPT FROM
SUPERVISION IF THOSE RESTRAINTS HAVE BEEN OBEYED.  ALL THE MORE
INSISTENT IS THE NEED, WHEN POWER HAS BEEN BESTOWED SO FREELY, THAT THE
"INEXORABLE SAFEGUARD" (ST. JOSEPH STOCK YARDS CO. V. UNITED STATES,
298 U.S. 38, 73) OF A FAIR AND OPEN HEARING BE MAINTAINED IN ITS
INTEGRITY.  MORGAN V. UNITED STATES, 298 U.S. 468, 480, 481; INTERSTATE
COMMERCE COMM'N V. LOUISVILLE & N.R. CO., SUPRA.  THE RIGHT TO SUCH A
HEARING IS ONE OF "THE RUDIMENTS OF FAIR PLAY" (CHICAGO, M. & ST. P.
RY. CO. V. POLT, 232 U.S. 165, 168) ASSURED TO EVERY LITIGANT BY THE
FOURTEENTH AMENDMENT AS A MINIMAL REQUIREMENT.  WEST OHIO GAS CO. V.
PUBLIC UTILITIES COMM'N (NO. 1), (NO. 2), SUPRA; BRINKERHOFF-FARIS CO.
V. HILL, 281 U.S. 673, 682.  CF. NORWEGIAN NITROGEN CO. V. UNITED
STATES, SUPRA.  THERE CAN BE NO COMPROMISE ON THE FOOTING OF
CONVENIENCE OR EXPEDIENCY, OR BECAUSE OF A NATURAL DESIRE TO BE RID OF
HARASSING DELAY, WHEN THAT MINIMAL REQUIREMENT HAS BEEN NEGLECTED OR
IGNORED. 

IN AN ENDEAVOR TO SUSTAIN THE JUDGMENT THE STATE SHIFTS ITS LINE OF
ARGUMENT FROM THE COURSE PURSUED BELOW, SO FAR, AT LEAST, AS THE COURSE
THEN FOLLOWED IS REFLECTED IN THE RECORD.  BOTH THE COMMISSION AND THE
SUPREME COURT OF OHIO TELL US THAT THEY HAVE APPLIED THE PRICE TRENDS
TO THE VALUE ON THE DAY CERTAIN BY RESORT TO JUDICIAL NOTICE.  THE
STATE NOW SUGGESTS THAT WHATEVER THE COURT OR THE COMMISSION MAY HAVE
PROFESSED TO BE DOING, THERE WAS A BASIS IN THE EVIDENCE FOR THE
CONCLUSION ULTIMATELY REACHED.  TO GIVE AID TO THAT SUGGESTION
REFERENCE IS MADE TO THE FINDINGS OF A FEDERAL COURT AS TO THE PRICES
CHARGED BY WESTERN ELECTRIC FOR TELEPHONE EQUIPMENT, WHICH FINDINGS
WERE NOT IN EVIDENCE, THOUGH THEY WERE FOUNDED UPON EVIDENCE RECEIVED
BY STIPULATION FOR PURPOSES NARROWLY DEFINED AND EXCLUSIVE OF ANY
OTHERS.  THE TERMS OF THE STIPULATION HAVE ALREADY BEEN STATED IN THIS
OPINION.  EVEN IF WE ASSUME IN FAVOR OF THE STATE THAT THE EVIDENCE,
WHEN IN, COULD BE CONSIDERED AS INDICATIVE OF THE TREND OF MARKET
VALUES GENERALLY, THE JUDGMENT IS NOT HELPED.  THE COMMISSION DID NOT
TAKE THE PRICES PAID BY APPELLANT TO THE AFFILIATED CORPORATION AS THE
ONLY EVIDENCE OF MARKET TRENDS, BUT MERELY AS ONE FACTOR ALONG WITH
MANY OTHERS.  WHAT WEIGHTING IT GAVE THEM THE RECORD DOES NOT DISCLOSE,
AND THE COMMISSION DENIED THE APPELLANT AN OPPORTUNITY TO INQUIRE. 
ACCORDING TO APPELLANT'S COMPUTATION, TELEPHONE APPARATUS AND EQUIPMENT
MAKE UP LESS THAN 30% OF THE VALUE OF APPELLANT'S PLANT.  EVEN FOR THAT
PORTION OF THE PLANT, THE WESTERN ELECTRIC PRICES WERE NOT ACCEPTED AS
DECISIVE, BUT WERE SUPPLEMENTED AND CORRECTED FROM SOURCES DEHORS THE
RECORD.  FOR THE OTHER 70%, THEY WERE WITHOUT PROBATIVE SIGNIFICANCE,
AT ALL EVENTS UNTIL SUPPLEMENTED BY EVIDENCE THAT THE DECLINE IN THE
VALUE OF APPARATUS AND EQUIPMENT WAS LESS THAN THAT IN THE VALUE OF
LAND OR BUILDINGS OR OTHER COMPONENTS OF THE PLANT.  TO FIX THE VALUE
OF THESE COMPONENTS THE COMMISSION HAD RECOURSE TO STATISTICS WHICH IT
COLLECTED FOR ITSELF.  "THERE WAS NO SUITABLE OPPORTUNITY THROUGH
EVIDENCE AND ARGUMENT  ...  TO CHALLENGE THE RESULT."  WEST OHIO GAS
CO. V. PUBLIC UTILITIES COMMISSION (NO. 1), SUPRA, P. 90. 

SECOND:  THE APPELLANT HAS NOT ESTOPPED ITSELF FROM OBJECTING TO THE
USE OF PRICE TRENDS GATHERED IN ITS ABSENCE. 

THE COMPANY DID NOT OPPOSE THE CONSOLIDATION OF THE STATE-WIDE
INVESTIGATION WITH THE PENCE LAW PROCEEDINGS.  THIS DID NOT AMOUNT,
HOWEVER, TO A WAIVER OF ITS RIGHT TO HAVE THE VALUE OF ITS PROPERTY
DETERMINED UPON EVIDENCE.  AT NO STAGE OF THE INQUIRY WAS THERE ANY
SUGGESTION BY THE COMMISSION THAT A DIFFERENT COURSE WOULD BE PURSUED. 
WE HAVE NO NEED TO CONSIDER HOW THE SEPARATE PROCEEDINGS WOULD HAVE
BEEN AFFECTED BY A VALUATION OF THE PROPERTY IN THE GENERAL
INVESTIGATION IF THE EVIDENCE OF VALUE HAD BEEN GATHERED IN THE USUAL
WAY.  IN THE THOUGHT OF THE STATE SUCH A COURSE WOULD HAVE OBVIATED THE
NECESSITY FOR SEPARATE EVIDENCE OF VALUE AS TO THE EXCHANGES UNDER
BOND, BUT THE COMPANY CONTENDED OTHERWISE AND MADE OFFERS OF PROOF IN
SUPPORT OF ITS CONTENTION.  THE MERITS OF THE OPPOSING VIEWS IN THAT
REGARD MAY BE PUT ASIDE AS IRRELEVANT UPON THE RECORD NOW BEFORE US.
WHAT IS CERTAIN IN ANY EVENT IS THIS, THAT NOTHING IN THE COURSE OF THE
TRIAL GAVE WARNING OF THE PURPOSE OF THE COMMISSION, WHILE REJECTING
EVIDENCE OF VALUE IN RESPECT OF EXCHANGES UNDER BOND, TO WANDER AFIELD
AND FIX THE COMPOSITE VALUE OF THE SYSTEM WITHOUT REFERENCE TO ANY
EVIDENCE, UPON PROOFS DRAWN FROM THE CLOUDS.  AS THERE WAS NO WARNING
OF SUCH A COURSE, SO ALSO THERE WAS NO CONSENT TO IT.  WE DO NOT
PRESUME ACQUIESCENCE IN THE LOSS OF FUNDAMENTAL RIGHTS. 

THIRD:  THE ALLOCATION OF EXCESS INCOME AMONG THE SUBSCRIBERS TO
EXCHANGES AND ALSO AMONG TOLL PATRONS IS CHALLENGED BY THE APPELLANT,
THE STATE RETORTING WITH THE CONTENTION THAT THERE HAS BEEN NO DENIAL
OF DUE PROCESS IN THE MANNER OF PARTITION, WHATEVER MAY BE SAID AS TO
THE POSSIBILITY OF INACCURACY OR ERROR. 

WE FIND IT UNNECESSARY AT THIS TIME TO CHOOSE BETWEEN THESE TWO
CONTENTIONS.  A COURT IS NOT REQUIRED TO DEFINE THE PROPER METHOD OF
ALLOCATION UNTIL THERE HAS BEEN A PROPER ASCERTAINMENT OF THE THING TO
BE ALLOCATED.  WHEN THAT HAS BEEN DONE, THERE MAY BE AGREEMENT OR
ACQUIESCENCE IN RESPECT OF THE MANNER OF DIVISION.  MOREOVER, UPON
ANOTHER HEARING THE PROBLEM MAY BE ELIMINATED IF VALUE, REVENUES AND
EXPENSES ARE PROVED FOR EACH EXCHANGE. 

FOURTH:  THE SAME REASONS THAT MAKE IT UNNECESSARY TO FIX THE METHOD
OF ALLOCATION RELIEVE US OF THE DUTY OF PASSING UPON OTHER PROBLEMS,
SUCH AS THOSE OF GOING CONCERN VALUE AND DEPRECIATION RESERVE, WHICH
CANNOT BE DISPOSED OF ADEQUATELY UNTIL THE VALUE OF THE PHYSICAL PLANT
HAS FIRST BEEN ASCERTAINED.    THE DECREE IS REVERSED AND THE CAUSE
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. 
REVERSED. 
..END :


















NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN, 301 U.S. 1 


NO. 419.  ARGUED FEBRUARY 10, 11, 1937.  - DECIDED APRIL 12, 1937.  - 83
F.(2D) 998, REVERSED. 


1.  THE DISTINCTION BETWEEN WHAT IS NATIONAL AND WHAT IS LOCAL IN THE
ACTIVITIES OF COMMERCE IS VITAL TO THE MAINTENANCE OF OUR FEDERAL FORM
OF GOVERNMENT.  P. 29. 

2.  THE VALIDITY OF PROVISIONS WHICH, CONSIDERED BY THEMSELVES, ARE
CONSTITUTIONAL, HELD NOT AFFECTED BY GENERAL AND AMBIGUOUS DECLARATIONS
IN THE SAME STATUTE.  P. 30. 

3.  AN INTERPRETATION WHICH CONFORMS A STATUTE TO THE CONSTITUTION
MUST BE PREFERRED TO ANOTHER WHICH WOULD RENDER IT UNCONSTITUTIONAL OR
OF DOUBTFUL VALIDITY.  P. 30. 

4.  ACTS WHICH DIRECTLY BURDEN OR OBSTRUCT INTERSTATE OR FOREIGN
COMMERCE, OR ITS FREE FLOW, ARE WITHIN THE REACH OF THE CONGRESSIONAL
POWER; AND THIS INCLUDES ACTS, HAVING THAT EFFECT, WHICH GROW OUT OF
LABOR DISPUTES.  P. 31. 

5.  EMPLOYEES IN INDUSTRY HAVE A FUNDAMENTAL RIGHT TO ORGANIZE AND
SELECT REPRESENTATIVES OF THEIR OWN CHOOSING FOR COLLECTIVE BARGAINING;
AND DISCRIMINATION OR COERCION UPON THE PART OF THEIR EMPLOYER TO
PREVENT THE FREE EXERCISE OF THIS RIGHT IS A PROPER SUBJECT FOR
CONDEMNATION BY COMPETENT LEGISLATIVE AUTHORITY P. 33. 

6.  THE CONGRESSIONAL AUTHORITY TO PROTECT INTERSTATE COMMERCE FROM
BURDENS AND OBSTRUCTIONS IS NOT LIMITED TO TRANSACTIONS WHICH CAN BE
DEEMED TO BE AN ESSENTIAL PART OF A "FLOW" OF SUCH COMMERCE.  PP. 34
36. 

7.  ALTHOUGH ACTIVITIES MAY BE INTRASTATE IN CHARACTER WHEN
SEPARATELY CONSIDERED, IF THEY HAVE SUCH A CLOSE AND SUBSTANTIAL
RELATION TO INTERSTATE COMMERCE THAT THEIR CONTROL IS ESSENTIAL, OR
APPROPRIATE, TO PROTECT THAT COMMERCE FROM BURDENS AND OBSTRUCTIONS,
CONGRESS HAS THE POWER TO EXERCISE THAT CONTROL.  P. 37. 

8.  THIS POWER MUST BE CONSIDERED IN THE LIGHT OF OUR DUAL SYSTEM OF
GOVERNMENT AND MAY NOT BE EXTENDED SO AS TO EMBRACE EFFECTS UPON
INTERSTATE COMMERCE SO INDIRECT AND REMOTE THAT TO EMBRACE THEM WOULD,
IN VIEW OF OUR COMPLEX SOCIETY, EFFECTUALLY OBLITERATE THE DISTINCTION
BETWEEN WHAT IS NATIONAL AND WHAT IS LOCAL AND CREATE A COMPLETELY
CENTRALIZED GOVERNMENT.  THE QUESTION IS NECESSARILY ONE OF DEGREE.  P.
37. 

9.  WHATEVER AMOUNTS TO MORE OR LESS CONSTANT PRACTICE, AND THREATENS
TO OBSTRUCT OR UNDULY TO BURDEN THE FREEDOM OF INTERSTATE COMMERCE, IS
WITHIN THE REGULATORY POWER OF CONGRESS UNDER THE COMMERCE CLAUSE; AND
IT IS PRIMARILY FOR CONGRESS TO CONSIDER AND DECIDE THE FACT OF THE
DANGER AND MEET IT.  P. 37. 

10.  THE CLOSE AND INTIMATE EFFECT WHICH BRINGS THE SUBJECT WITHIN
THE REACH OF FEDERAL POWER MAY BE DUE TO ACTIVITIES IN RELATION TO
PRODUCTIVE INDUSTRY, ALTHOUGH THE INDUSTRY WHEN SEPARATELY VIEWED IS
LOCAL.  P. 38. 

11.  THE RELATION TO INTERSTATE COMMERCE OF THE MANUFACTURING
ENTERPRISE INVOLVED IN THIS CASE WAS SUCH THAT A STOPPAGE OF ITS
OPERATIONS BY INDUSTRIAL STRIFE WOULD HAVE AN IMMEDIATE, DIRECT AND
PARALYZING EFFECT UPON INTERSTATE COMMERCE.  THEREFORE CONGRESS HAD
CONSTITUTIONAL AUTHORITY, FOR THE PROTECTION OF INTERSTATE COMMERCE, TO
SAFEGUARD THE RIGHT OF THE EMPLOYEES IN THE MANUFACTURING PLANT TO SELF
ORGANIZATION AND FREE CHOICE OF THEIR REPRESENTATIVES FOR COLLECTIVE
BARGAINING.  P. 41. 

JUDICIAL NOTICE IS TAKEN OF THE FACTS THAT THE RECOGNITION OF THE
RIGHT OF EMPLOYEES TO SELF-ORGANIZATION AND TO HAVE REPRESENTATIVES OF
THEIR OWN CHOOSING FOR THE PURPOSE OF COLLECTIVE BARGAINING IS OFTEN AN
ESSENTIAL CONDITION OF INDUSTRIAL PEACE, AND THAT REFUSAL TO CONFER AND
NEGOTIATE HAS BEEN ONE OF THE MOST PROLIFIC CAUSES OF STRIFE. 

12.  THE NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935, EMPOWERS THE
NATIONAL LABOR RELATIONS BOARD TO PREVENT ANY PERSON FROM ENGAGING IN
UNFAIR LABOR PRACTICES "AFFECTING COMMERCE"; ITS DEFINITION OF
"COMMERCE" (ASIDE FROM COMMERCE WITHIN A TERRITORY OR THE DISTRICT OF
COLUMBIA) IS SUCH AS TO INCLUDE ONLY INTERSTATE AND FOREIGN COMMERCE;
AND THE TERM "AFFECTING COMMERCE" IT DEFINES AS MEANING "IN COMMERCE,
OR BURDENING OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE, OR
HAVING LED OR TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR
OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE."  THE "UNFAIR LABOR
PRACTICES," AS DEFINED BY THE ACT AND INVOLVED IN THIS CASE, ARE
RESTRAINT OR COERCION OF EMPLOYEES IN THEIR RIGHTS TO SELF-ORGANIZATION
AND TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN
CHOOSING, AND DISCRIMINATION AGAINST THEM IN REGARD TO HIRE OR TENURE
OF EMPLOYMENT FOR THE PURPOSE OF ENCOURAGING OR DISCOURAGING MEMBERSHIP
IN ANY LABOR ORGANIZATION.  SECS. 7 AND 8.  THE ACT (SEC. 9A) DECLARES
THAT REPRESENTATIVES, FOR THE PURPOSE OF COLLECTIVE BARGAINING, OF THE
MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE UNIT SHALL BE THE EXCLUSIVE
REPRESENTATIVES OF ALL THE EMPLOYEES IN THAT UNIT; BUT THAT ANY
INDIVIDUAL EMPLOYEE OR A GROUP OF EMPLOYEES SHALL HAVE THE RIGHT AT ANY
TIME TO PRESENT GRIEVANCES TO THEIR EMPLOYER.  HELD: 

(1)  THAT IN SAFEGUARDING RIGHTS OF EMPLOYEES AND EMPOWERING THE
BOARD, THE STATUTE, IN SO FAR AS INVOLVED IN THE PRESENT CASE, CONFINES
ITSELF TO SUCH CONTROL OF THE INDUSTRIAL RELATIONSHIP AS MAY BE
CONSTITUTIONALLY EXERCISED BY CONGRESS TO PREVENT BURDEN OR OBSTRUCTION
TO INTERSTATE OR FOREIGN COMMERCE ARISING FROM INDUSTRIAL DISPUTES.  P.
43. 

(2)  THE ACT IMPOSES UPON THE EMPLOYER THE DUTY OF CONFERRING AND
NEGOTIATING WITH THE AUTHORIZED REPRESENTATIVES OF THE EMPLOYEES FOR
THE PURPOSE OF SETTLING A LABOR DISPUTE; BUT IT DOES NOT PRECLUDE SUCH
INDIVIDUAL CONTRACTS AS THE EMPLOYER MAY ELECT TO MAKE DIRECTLY WITH
INDIVIDUAL EMPLOYEES.  P. 44. 

(3)  THE ACT DOES NOT COMPEL AGREEMENTS BETWEEN EMPLOYERS AND
EMPLOYEES.  ITS THEORY IS THAT FREE OPPORTUNITY FOR NEGOTIATION WITH
ACCREDITED REPRESENTATIVES OF EMPLOYEES IS LIKELY TO PROMOTE INDUSTRIAL
PEACE AND MAY BRING ABOUT THE ADJUSTMENTS AND AGREEMENTS WHICH THE ACT
IN ITSELF DOES NOT ATTEMPT TO COMPEL.  P. 45. 

(4)  THE ACT DOES NOT INTERFERE WITH THE NORMAL RIGHT OF THE EMPLOYER
TO HIRE, OR WITH THE RIGHT OF DISCHARGE WHEN EXERCISED FOR OTHER
REASONS THAN INTIMIDATION AND COERCION; AND WHAT IS THE TRUE REASON IN
THIS REGARD IS LEFT THE SUBJECT OF INVESTIGATION IN EACH CASE WITH FULL
OPPORTUNITY TO SHOW THE FACTS.  P. 45. 

13.  A CORPORATION WHICH MANUFACTURED IRON AND STEEL PRODUCTS IN ITS
FACTORIES IN PENNSYLVANIA FROM RAW MATERIALS MOST OF WHICH IT BROUGHT
IN FROM OTHER STATES, AND WHICH SHIPPED 75% OF THE MANUFACTURED
PRODUCTS OUT OF PENNSYLVANIA AND DISPOSED OF THEM THROUGHOUT THIS
COUNTRY AND IN CANADA, WAS REQUIRED BY ORDERS OF THE NATIONAL LABOR
RELATIONS BOARD TO TENDER REINSTATEMENT TO MEN WHO HAD BEEN EMPLOYED IN
ONE OF THE FACTORIES BUT WERE DISCHARGED BECAUSE OF THEIR UNION
ACTIVITIES AND FOR THE PURPOSE OF DISCOURAGING UNION MEMBERSHIP.  THE
ORDERS FURTHER REQUIRED THAT THE COMPANY MAKE GOOD THE PAY THE MEN HAD
LOST THROUGH THEIR DISCHARGE, AND THAT IT DESIST FROM DISCRIMINATING
AGAINST MEMBERS OF THE UNION, WITH REGARD TO HIRE AND TENURE OF
EMPLOYMENT, AND FROM INTERFERING BY COERCION WITH THE SELF-ORGANIZATION
OF ITS EMPLOYEES IN THE PLANT.  HELD THAT THE ORDERS WERE AUTHORIZED BY
THE NATIONAL LABOR RELATIONS ACT, AND THAT THE ACT IS CONSTITUTIONAL AS
THUS APPLIED TO THE COMPANY.  PP. 30, 32, 34, 41. 

14.  THE RIGHT OF EMPLOYERS TO CONDUCT THEIR OWN BUSINESS IS NOT
ARBITRARILY RESTRAINED BY REGULATIONS THAT MERELY PROTECT THE
CORRELATIVE RIGHTS OF THEIR EMPLOYEES TO ORGANIZE FOR THE PURPOSE OF
SECURING THE REDRESS OF GRIEVANCES AND OF PROMOTING AGREEMENTS WITH
EMPLOYERS RELATING TO RATES OF PAY AND CONDITIONS OF WORK.  P. 43. 

15.  THE FACT THAT THE NATIONAL LABOR RELATIONS ACT SUBJECTS THE
EMPLOYER TO SUPERVISION AND RESTRAINT AND LEAVES UNTOUCHED THE ABUSES
FOR WHICH EMPLOYEES MAY BE RESPONSIBLE, AND FAILS TO PROVIDE A MORE
COMPREHENSIVE PLAN, WITH BETTER ASSURANCE OF FAIRNESS TO BOTH SIDES AND
WITH INCREASED CHANCES OF SUCCESS IN BRINGING ABOUT EQUITABLE SOLUTIONS
OF INDUSTRIAL DISPUTES AFFECTING INTERSTATE COMMERCE, DOES NOT AFFECT
ITS VALIDITY.  THE QUESTION IS AS TO THE POWER OF CONGRESS, NOT AS TO
ITS POLICY; AND LEGISLATIVE AUTHORITY, EXERTED WITHIN ITS PROPER FIELD,
NEED NOT EMBRACE ALL THE EVILS WITHIN ITS REACH.  P. 46. 

16.  THE NATIONAL LABOR RELATIONS ACT ESTABLISHES STANDARDS TO WHICH
THE BOARD MUST CONFORM.  THERE MUST BE COMPLAINT, NOTICE AND HEARING. 
THE BOARD MUST RECEIVE EVIDENCE AND MAKE FINDINGS.  THESE FINDINGS AS
TO THE FACTS ARE TO BE CONCLUSIVE, BUT ONLY IF SUPPORTED BY EVIDENCE. 
THE ORDER OF THE BOARD IS SUBJECT TO REVIEW BY THE DESIGNATED COURT;
AND ONLY WHEN SUSTAINED BY THE COURT MAY THE ORDER BE ENFORCED.  UPON
THAT REVIEW ALL QUESTIONS OF THE JURISDICTION OF THE BOARD AND THE
REGULARITY OF ITS PROCEEDINGS, ALL QUESTIONS OF CONSTITUTIONAL RIGHT OR
STATUTORY AUTHORITY, ARE OPEN TO EXAMINATION BY THE COURT.  THESE
PROCEDURAL PROVISIONS AFFORD ADEQUATE OPPORTUNITY TO SECURE JUDICIAL
PROTECTION AGAINST ARBITRARY ACTION, IN ACCORDANCE WITH THE WELLSETTLED
RULES APPLICABLE TO ADMINISTRATIVE AGENCIES SET UP BY CONGRESS TO AID
IN THE ENFORCEMENT OF VALID LEGISLATION.  P. 47. 

17.  THE PROVISION OF THE NATIONAL LABOR RELATIONS ACT, SEC. 10(C),
AUTHORIZING THE BOARD TO REQUIRE THE REINSTATEMENT OF EMPLOYEES FOUND
TO HAVE BEEN DISCHARGED BECAUSE OF THEIR UNION ACTIVITY OR FOR THE
PURPOSE OF DISCOURAGING MEMBERSHIP IN THE UNION, IS VALID.  P. 47. 

18.  THE PROVISION OF THE ACT, SEC. 10(C), THAT THE BOARD, IN
REQUIRING REINSTATEMENT, MAY DIRECT THE PAYMENT OF WAGES FOR THE TIME
LOST BY THE DISCHARGE, LESS AMOUNTS EARNED BY THE EMPLOYEE DURING THAT
PERIOD, DOES NOT CONTRAVENE THE PROVISIONS OF THE SEVENTH AMENDMENT
WITH RESPECT TO JURY TRIAL IN SUITS AT COMMON LAW.  P. 48. 

NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP.* 

*NO. 419, NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL
CORP.; NOS. 420 AND 421, NATIONAL LABOR RELATIONS BOARD V. FRUEHAUF
TRAILER CO., POST, P. 49; NOS. 422 AND 423, NATIONAL LABOR RELATIONS
BOARD V. FRIEDMAN-HARRY MARKS CLOTHING CO., POST, P. 58; NO. 365,
ASSOCIATED PRESS V. NATIONAL LABOR RELATIONS BOARD, POST, P. 103; AND
NO. 469, WASHINGTON, VIRGINIA & MARYLAND COACH CO. V. NATIONAL LABOR
RELATIONS BOARD, POST, P. 142, WHICH ARE KNOWN AS THE "LABOR BOARD
CASES," WERE DISPOSED OF IN FIVE SEPARATE OPINIONS.  THE DISSENTING
OPINION, POST, P. 76, APPLIES TO NOS. 419, 420 AND 421, AND 422 AND
423.  THE DISSENTING OPINION, POST, P. 133, APPLIES TO NO. 365.  THE
OPINION IN NO. 469 WAS UNANIMOUS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 299 U.S. 534, TO REVIEW A DECREE OF THE CIRCUIT COURT OF
APPEALS DECLINING TO ENFORCE AN ORDER OF THE NATIONAL LABOR RELATIONS
BOARD. 

THE NATIONAL LABOR RELATIONS ACT IS AN EXERCISE OF THE POWER OF
CONGRESS TO PROTECT INTERSTATE COMMERCE FROM INJURIES CAUSED BY
INDUSTRIAL STRIFE. 

BEFORE THIS STATUTE WAS ENACTED EXPERIENCE HAD SHOWN THAT INDUSTRIAL
STRIFE WAS A RECURRENT BURDEN UPON THE INTERSTATE COMMERCE OF THE
NATION.  NOT ONLY IN ITS TOTALITY HAD SUCH STRIFE PRODUCED OBSTRUCTIONS
TO COMMERCE, BUT ALSO IN MANY INDIVIDUAL INSTANCES SUCH STRIFE
EVENTUATED IN CONSPIRACIES TO RESTRAIN COMMERCE OR IMPOSED SUCH
SUBSTANTIAL BURDENS UPON IT THAT PENALTIES OR INJUNCTIONS WERE APPLIED
UNDER THE SHERMAN ACT.  THESE FACTS ARE CLEARLY SHOWN BY A SURVEY OF
THE RESULTS OF INDIVIDUAL DISPUTES, THE STATISTICS WITH REGARD TO THE
TOTAL NUMBER OF SUCH DISPUTES, AND REPEATED FEDERAL ACTIVITIES IN
CONNECTION WITH INDUSTRIAL STRIFE. 

CONGRESS, IN DEALING WITH THIS EVIL OF INDUSTRIAL STRIFE, MIGHT HAVE
APPROACHED THE PROBLEM IN EITHER OF TWO WAYS.  IT MIGHT HAVE ENACTED A
STATUTE DESIGNED TO REMOVE THE BURDEN ON INTERSTATE COMMERCE AFTER IT
HAD EVINCED ITSELF IN A PARTICULAR CASE, AS THE SHERMAN ACT DID; OR, IT
MIGHT HAVE ENACTED A STATUTE TO DEAL WITH THE CAUSES OF THE BURDEN IN
ANTICIPATION OF THEIR PROBABLE EFFECT, AS THE PACKERS AND STOCKYARDS
ACT DID.  CONGRESSIONAL POWER TO ENACT THIS SECOND TYPE OF STATUTE
(HEREINAFTER CALLED THE PREVENTIVE POWER) EXTENDS AT LEAST AS FAR AS
THE POWER TO ENACT A STATUTE TO CONTROL THE BURDEN AFTER ITS APPEARANCE
(HEREINAFTER CALLED THE CONTROL POWER).  STAFFORD V. WALLACE, 258 U.S.
495, 525. 

THE NATIONAL LABOR RELATIONS ACT, WHICH IS AN EXERCISE OF THIS
PREVENTIVE POWER, DOES NOT ATTEMPT TO ELIMINATE CAUSES OF STRIFE IN ALL
ENTERPRISES.  THE STATUTE AND THE MANDATE ADDRESSD TO THE
ADMINISTRATIVE BOARD ARE SPECIFICALLY DIRECTED TO THE ELIMINATION OF
THE PROSCRIBED PRACTICES ONLY WHEN THEY ARE FOUND TO BE "AFFECTING
COMMERCE."  SEC. 10(A).  THIS PHRASE "AFFECTING COMMERCE" IS DEFINED IN
SEC. 2(7) OF THE STATUTE AS "IN COMMERCE, OR BURDENING OR OBSTRUCTING
COMMERCE OR THE FREE FLOW OF COMMERCE, OR HAVING LED OR TENDING TO LEAD
TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE OR THE FREE FLOW
OF COMMERCE."  THESE WORDS ARE PLAINLY PATTERNED UPON LANGUAGE USED IN
DECISIONS OF THIS COURT IN CASES ARISING UNDER OTHER STATUTES ENACTED
BY CONGRESS UNDER THE COMMERCE POWER.  THIS JURISDICTIONAL LIMITATION
IS MANIFESTLY A DIRECTION TO THE BOARD TO EXERCISE THE NATIONAL POWER
WITHIN THE LIMITS PERMITTED BY THE CONSTITUTION.  IN OTHER WORDS,
CONGRESS HAS TAKEN AS THE AMBIT OF THIS PARTICULAR PREVENTIVE STATUTE
THE BOUNDARIES TO WHICH IT WOULD BE RESTRICTED WERE IT EXERCISING TO
THE FULL ITS CONTROL POWER UNDER APPROPRIATE LEGISLATION. 

OF COURSE, IN ELIMINATING THESE PROSCRIBED PRACTICES IN SITUATIONS
WHICH ARE LIKELY TO COME WITHIN THE CONTROL POWER OF CONGRESS, THE
APPLICATION OF THE ACT WILL UPON OCCASION RESULT IN THE PROHIBITION OF
ACTIVITIES WHICH, EVEN IF ALLOWED TO SPEND THEIR FORCE, WOULD NOT
RESULT IN INDUSTRIAL STRIFE WHICH DID IN FACT COME WITHIN THE FEDERAL
CONTROL POWER.  BUT, PROVIDED THAT WHEN THE PRACTICE WAS INDULGED IN
THERE WAS A REASONABLE LIKELIHOOD THAT ANY INDUSTRIAL STRIFE WHICH
RESULTED WOULD BE WITHIN THE CONTROL POWER, THE BOARD MAY APPLY THE
PREVENTIVE MEASURE.  TO HOLD OTHERWISE WOULD DEPRIVE CONGRESS OF ANY
PREVENTIVE POWER, SINCE NO ONE CAN PREDICT WITH ABSOLUTE ACCURACY, IN
ADVANCE OF THE COMPLETE DEVELOPMENT OF THE EFFECTS OF A CAUSE, EXACTLY
WHAT THOSE EFFECTS WILL BE.  COMPARE STAFFORD V. WALLACE, 258 U.S. 495;
CHICAGO BOARD OF TRADE V. OLSEN, 262 U.S. 1.  THIS LACK OF
PREDICTABILITY IS PARTICULARLY TRUE OF INDUSTRIAL STRIFE.  MOREOVER, IN
ELIMINATING THE CAUSE OF AN EVIL WITHIN THE POWER OF CONGRESS, THE ACT
MAY ON OCCASION ELIMINATE THE CAUSE OF PURELY LOCAL EVILS.  INDEED,
THIS IS ALMOST INEVITABLE, SINCE A SINGLE EVENT HAS MULTIPLE
CONSEQUENCES.  YET PLAINLY THE EXISTENCE OF A GRANTED FEDERAL POWER
CANNOT BE LIMITED BY THE COLLATERAL CONSEQUENCES OF ITS EXERCISE. 
ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288. 

THE FOREGOING EPITOME OF THE STATUTORY SCHEME MAKES IT CLEAR THAT THE
QUESTION OF THE VALIDITY OF A SPECIFIC APPLICATION OF THE STATUTE
DEPENDS UPON WHETHER INDUSTRIAL STRIFE RESULTING FROM THE PRACTICES IN
THE PARTICULAR ENTERPRISE UNDER CONSIDERATION WOULD BE OF THE CHARACTER
WHICH THE FEDERAL POWER COULD CONTROL IF IT OCCURRED.  THE QUESTION OF
PRIMARY IMPORTANCE THEREFORE IS THE EXTENT OF THE FEDERAL POWER OF
CONTROL.  SINCE THE LANGUAGE OF THIS STATUTE DOES NOT GO BEYOND THE
AMBIT OF THIS POWER, WHATEVER IT MAY BE, THE STATUTE IS CLEARLY
CONSTITUTIONAL ON ITS FACE, AND THE ONLY ISSUE IS WHETHER IT HAS BEEN
CONSTITUTIONALLY APPLIED. 

THIS COURT HAS NEVER HAD OCCASION TO DEFINE THE FULL EXTENT TO WHICH
INDUSTRIAL STRIFE IN THE MANUFACTURING, PRODUCING, OR PROCESSING
DIVISIONS OF AN ENTERPRISE ENGAGED EXTENSIVELY IN INTERSTATE COMMERCE
MAY BE SUBJECTED TO THE EXERCISE OF THE CONTROL POWER OF CONGRESS.  IT
HAS, HOWEVER, HELD THAT CERTAIN SITUATIONS IN THESE DIVISIONS ARE
CLEARLY WITHIN THE CONTROL POWER, AND HAS FURTHER LAID DOWN GENERAL
PRINCIPLES WHICH FURNISH STANDARDS FOR THE PROPER APPRECIATION OF THE
FULL SCOPE OF THAT POWER. 

IT IS WELL SETTLED THAT AN INDUSTRIAL DISPUTE IN SUCH AN ENTERPRISE
INVOLVING AN INTENT TO AFFECT COMMERCE IS WITHIN THE CONTROL POWER OF
CONGRESS.  UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344;
BEDFORD CUT STONE CO. V. STONE CUTTERS' ASSN., 274 U.S. 37; DUPLEX
PRINTING CO. V. DEERING, 254 U.S. 443; LOEWE V. LAWLOR, 208 U.S. 274. 
CONSEQUENTLY, WHERE THE SITUATION IN A PARTICULAR ENTERPRISE PRESENTS A
REASONABLE LIKELIHOOD THAT INDUSTRIAL STRIFE, IF IT OCCURRED, WOULD
INVOLVE AN INTENT TO AFFECT COMMERCE, THE BOARD CAN APPLY THE STATUTE
TO THAT ENTERPRISE. 

THIS COURT HAS ALSO RECOGNIZED THE PRINCIPLE THAT AN INDUSTRIAL
DISPUTE HAVING THE NECESSARY EFFECT OF SUBSTANTIALLY BURDENING COMMERCE
WOULD BE WITHIN THE CONTROL POWER OF CONGRESS.  INDUSTRIAL ASSOCIATION
V. UNITED STATES, 268 U.S. 64, 81; UNITED MINE WORKERS V. CORONADO COAL
CO., 259 U.S. 344, 410-411.  HENCE, THE STATUTE IS APPLICABLE TO AN
ENTERPRISE WHICH IS SHOWN BY EVIDENCE BEFORE THE BOARD TO BE OF SUCH A
CHARACTER THAT STRIFE, IF IT OCCURRED, WOULD HAVE SUCH A NECESSARY
EFFECT.  THE PROPER APPLICATION OF THE STATUTE TO SUCH SITUATIONS
DEPENDS, OF COURSE, ON THE PRECISE SCOPE OF THE "NECESSARY EFFECT"
PRINCIPLE.  ALTHOUGH THE COURT HAS RECOGNIZED THE PRINCIPLE IT HAS NOT
HERETOFORE HAD OCCASION TO DEFINE IT. 

LASTLY, THE SCOPE OF THE CONTROL POWER EXTENDS TO RECURRING EVILS
WHICH IN THEIR TOTALITY CONSTITUTE A BURDEN ON INTERSTATE COMMERCE. 
THIS COURT HAS STATED THAT SUCH RECURRENT EVILS MAY, AFTER APPROPRIATE
FINDINGS, BE SUBJECTED BY CONGRESS TO NATIONAL SUPERVISION AND
RESTRAINT.  STAFFORD V. WALLACE, 258 U.S. 495; CHICAGO BOARD OF TRADE
V. OLSEN, 262 U.S. 1.  THIS PRINCIPLE EXTENDS TO INDUSTRIAL STRIFE IN
ENTERPRISES WHICH RECEIVE A SUBSTANTIAL PART OF THEIR RAW MATERIAL
FROM, OR SHIP A SUBSTANTIAL PART OF THEIR PRODUCTS IN, INTERSTATE
COMMERCE.  UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344, 408;
UNITED LEATHER WORKERS V. HERKERT & MEISEL TRUNK CO., 265 U.S. 457,
469; TEXAS & NEW ORLEANS R. CO. V. BROTHERHOOD OF RAILWAY CLERKS, 281
U.S. 548.  HERE CONGRESS HAS FOUND, AND EXPERIENCE SHOWS, THAT
INDUSTRIAL STRIFE IN SUCH ENTERPRISES CONSTITUTES SUCH A RECURRING
EVIL.  UNDER THIS VIEW OF THE CONTROL POWER THE STATUTE MAY BE APPLIED
TO THE INDIVIDUAL INSTANCES OF THIS RECURRING BURDEN - THAT IS, TO ANY
ENTERPRISE WHICH RECEIVES A SUBSTANTIAL PART OF ITS MATERIALS FROM, OR
SHIPS A SUBSTANTIAL PART OF ITS PRODUCTS IN, INTERSTATE COMMERCE, AND
IS DEPENDENT UPON SUCH COMMERCE FOR THE SUCCESSFUL CONDUCT OF ITS
BUSINESS. 

WE BELIEVE THAT THE INSTANT CASE FALLS WITHIN EACH OF THESE THREE
SITUATIONS IN WHICH THE CONTROL POWER OF CONGRESS MAY BE EXERCISED. 

THE REASONABLE LIKELIHOOD OF A CONTROVERSY WITH THE INTENT TO AFFECT
COMMERCE MIGHT BE DEMONSTRATED IN EITHER OF TWO WAYS: FIRST, EVIDENCE
MIGHT BE PRESENTED TO THE BOARD THAT IN A PARTICULAR SITUATION THE
INTENT ALREADY EXISTS; OR SECOND, EVIDENCE MIGHT BE PRESENTED TO THE
BOARD THAT THE SITUATION WAS COMPARABLE TO, AND OF THE SAME GENERAL
TYPE AS, OTHERS OUT OF WHICH IN THE PAST THERE HAD EVOLVED
CONTROVERSIES WITH INTENT TO AFFECT COMMERCE, OR THAT IN THE PARTICULAR
SITUATION CONFRONTING THE BOARD, SUCH DEFINITE INTENTION MIGHT
REASONABLY BE EXPECTED TO DEVELOP.  IN THE CASE AT BAR IT IS NOT
CLAIMED THAT THERE IS EVIDENCE OF THE FIRST SORT; BUT THERE IS ABUNDANT
EVIDENCE THAT THE SITUATION IS FRAUGHT WITH THE RISK THAT AFTER STRIFE
DEVELOPED IT WOULD INVOLVE THE PURPOSE TO CURTAIL THE MOVEMENT OF GOODS
IN COMMERCE. 

AS PREVIOUSLY STATED, THE COURT HAS NOT YET DETERMINED THE EXACT
SCOPE OF THE PHRASE "NECESSARY EFFECT OF SUBSTANTIALLY BURDENING
COMMERCE."  IT UNDENIABLY INCLUDES SITUATIONS IN WHICH THE PARTICIPANTS
CANNOT BE CHARGED WITH A CONSCIOUS SPECIFIC DESIRE TO INTERRUPT
COMMERCE.  UNITED STATES V. PATTEN, 226 U.S. 525.  THE STATEMENTS OF
THIS COURT MAKE IT CLEAR THAT THE APPLICATION OF THIS PRINCIPLE MAY
DEPEND UPON THE MAGNITUDE OF THE EFFECT ON COMMERCE.  THE POSSIBLE USE
OF SUCH A STANDARD IS ENTIRELY CONSISTENT WITH CARTER V. CARTER COAL
CO., 298 U.S. 238.  THREE POSSIBLE DEFINITIONS OF THE SCOPE OF THE
"NECESSARY EFFECT" PRINCIPLE MAY BE ADVANCED:  (1) A NECESSARY EFFECT
ON COMMERCE RESULTS FROM INDUSTRIAL STRIFE OCCURRING IN AN ENTERPRISE
WHICH LIES WITHIN A WELL-DEFINED STREAM OR FLOW OF COMMERCE, OR (2) A
NECESSARY EFFECT ON COMMERCE RESULTS FROM INDUSTRIAL STRIFE WHICH
RESTRAINS A SUBSTANTIAL PART OF ALL THE COMMERCE IN A PARTICULAR
COMMODITY, OR (3) A NECESSARY EFFECT ON COMMERCE RESULTS FROM
INDUSTRIAL STRIFE WHICH RESTRAINS THE MOVEMENT OF A SUBSTANTIAL VOLUME
OF GOODS WHICH WOULD OTHERWISE MOVE IN INTERSTATE COMMERCE.  THE
INSTANT CASE FALLS WITHIN ALL THREE OF THESE ASPECTS OF THE PRINCIPLE,
BUT THIS BRIEF ADDRESSES PARTICULAR ATTENTION TO THE FIRST AND SECOND. 

NEITHER SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495, NOR CARTER V.
CARTER COAL CO., 298 U.S. 238, IS HERE APPLICABLE.  IN THE SCHECHTER
CASE IT WAS URGED THAT WAGES AND HOURS IN LOCAL INDUSTRY BORE A
RELATION TO INTERSTATE COMMERCE BY REASON OF AN INTRICATE CHAIN OF
ECONOMIC CAUSES AND EFFECTS.  AN EFFECT ON COMMERCE WHICH OCCURRED IN
SUCH A MANNER THE COURT CHARACTERIZED AS INDIRECT.  THE ACT INVOLVED IN
THE CARTER CASE HAD AS ITS PURPOSE THE "STABILIZING" OF THE BITUMINOUS
COAL INDUSTRY THROUGH REGULATION OF PRICES AND WAGES.  THE EFFECT OF
WAGE CUTTING ON INTERSTATE COMMERCE WAS HELD TO BE INDIRECT ON THE
BASIS OF THE SCHECHTER CASE.  THE COLLECTIVE BARGAINING PROVISIONS OF
THAT ACT WERE, AS IS CLEAR FROM THE FACE OF THE STATUTE AND FROM THE
OPINION OF THE COURT, ANCILLARY TO THE WAGE FIXING PROVISIONS AND
FURNISHED THE MEANS THROUGH WHICH REGULATIONS WITH RESPECT TO WAGES
HAVING THE FORCE OF LAW WERE TO BE ARRIVED AT.  ON THE OTHER HAND, THE
NATIONAL LABOR RELATIONS ACT IS DESIGNED SOLELY TO ELIMINATE THE BURDEN
ON INTERSTATE COMMERCE CAUSED BY INDUSTRIAL STRIFE.  SUCH STRIFE
CONSTITUTES AN INTERRUPTION TO COMMERCE OPERATING DIRECTLY WITHOUT "AN
EFFICIENT INTERVENING AGENCY OR CONDITION."  THUS IT DEALS WITH MATTERS
CLOSELY CONNECTED WITH COMMERCE, DOES NOT GO BEYOND WHAT IS NECESSARY
FOR THE PROTECTION OF COMMERCE, AND DOES NOT ATTEMPT "A BROAD
REGULATION OF INDUSTRY WITHIN THE STATE." 

THE RESPONDENT CONTENDS THAT THE NATIONAL LABOR RELATIONS ACT IS, IN
REALITY, A REGULATION OF LABOR RELATIONS, AND NOT OF INTERSTATE
COMMERCE, AND THAT, AS A CONSEQUENCE, IT IS NOT WITHIN THE POWER OF
CONGRESS TO ENACT.  EVEN IF IT SHOULD BE CONSIDERED A TRUE REGULATION
OF INTERSTATE COMMERCE, IT STILL HAS NO APPLICATION TO THE RESPONDENT'S
RELATIONS WITH ITS PRODUCTION EMPLOYEES, BECAUSE THEY ARE NOT SUBJECT
TO REGULATION BY THE FEDERAL GOVERNMENT.  IN ADDITION, THE PROVISIONS
OF THE ACT WHICH THE PETITIONER SEEKS TO APPLY IN THE PRESENT CASES ARE
INVALID, BECAUSE THEY VIOLATE SEC. 2 OF ART. III OF THE CONSTITUTION,
AS WELL AS THE FIFTH AND SEVENTH AMENDMENTS.    THE RESPONDENT IS A
CORPORATION ENGAGED IN THE MANUFACTURE OF IRON AND STEEL PRODUCTS.  IN
THIS CONNECTION, IT OWNS AND OPERATES A LARGE STEEL PLANT AT ALIQUIPPA,
PENNSYLVANIA, IN WHICH ARE EMPLOYED APPROXIMATELY TEN THOUSAND MEN. 
THE PRESENT CASE IS, IN REALITY, A CONTROVERSY BETWEEN TEN INDIVIDUALS
WHO WERE FORMERLY EMPLOYED BY THE RESPONDENT IN PRODUCTION WORK AT THIS
PLANT, AND THE RESPONDENT.  THESE INDIVIDUALS, WITH THREE OTHERS, FILED
A COMPLAINT WITH THE PETITIONER, THE NATIONAL LABOR RELATIONS BOARD,
CHARGING THAT THEY HAD BEEN DISCHARGED OR DEMOTED BY THE RESPONDENT
BECAUSE OF UNION AFFILIATIONS.  THE RESPONDENT OBJECTED TO THE
JURISDICTION OF THE PETITIONER, BUT ITS MOTION TO DISMISS WAS OVERRULED
AND THE PETITIONER, AFTER HEARING, DETERMINED THAT THE COMPLAINANTS HAD
BEEN WRONGFULLY DISCHARGED AND ORDERED THEIR IMMEDIATE RESTORATION,
WITH COMPENSATION FOR LOST PAY. 

THE PETITIONER HAS ENDEAVORED TO JUSTIFY ITS ASSUMPTION OF
JURISDICTION OVER THE RESPONDENT'S EMPLOYMENT RELATIONS, BY MAKING A
FINDING THAT THE RESPONDENT HAS ENGAGED IN UNFAIR LABOR PRACTICES
"AFFECTING COMMERCE" WITHIN THE DEFINITION OF THE NATIONAL LABOR
RELATIONS ACT.  THE RESPONDENT INSISTS THAT THE FACTS UPON WHICH THIS
"FINDING" PRETENDS TO BE BASED ARE, IN LAW, INSUFFICIENT TO JUSTIFY ANY
SUCH CONCLUSION, AND THAT THIS COURT IS ENTITLED TO REEXAMINE THE FACTS
FOR THE PURPOSE OF DETERMINING THE JURISDICTIONAL ISSUE.  CROWELL V.
BENSON, 285 U.S. 22; ST. JOSEPH STOCK YARDS V. UNITED STATES, 298 U.S.
38. 

THE NATIONAL LABOR RELATIONS ACT IS NOT A TRUE REGULATION OF
INTERSTATE COMMERCE. 

THE POWER OF CONGRESS IS CLEARLY DEFINED BY THE COMMERCE CLAUSE OF
THE CONSTITUTION, AND CONSIDERATIONS OF POLITICAL EXPEDIENCY HAVE NO
WEIGHT IN FIXING THE DIVIDING LINE BETWEEN THE POWERS OF CONGRESS AND
THE RESERVED POWERS OF THE SEVERAL STATES.  THE ARGUMENT OF THE
PETITIONER IS, IN THE LAST ANALYSIS, A PLEA THAT, FROM AN ECONOMIC
STANDPOINT, CONGRESS SHOULD HAVE POWER TO APPLY ITS LEGISLATION TO THE
RESPONDENT'S EMPLOYMENT RELATIONS.  THIS, WE SUBMIT, IS ENTIRELY BESIDE
THE POINT IF THE EXERCISE OF SUCH POWER WOULD RUN COUNTER TO THE
CONSTITUTION. 

THE JURISDICTION OF CONGRESS UNDER THE COMMERCE CLAUSE INCLUDES THE
POWER TO REGULATE, RESTRICT AND PROTECT INTERSTATE COMMERCE; BUT NOT
THE RIGHT TO USE SUCH JURISDICTION AS A PRETEXT FOR LEGISLATION WHICH
INTERFERES WITH THE LOCAL SOVEREIGNTY OF THE SEPARATE STATES.  GIBBONS
V. OGDEN, 9 WHEAT.  1.  THE USE OF AN ADMITTED POWER OF CONGRESS AS A
PRETEXT TO INTERFERE WITH LOCAL ACTIVITIES WHICH ARE NOT SUBJECT TO ITS
JURISDICTION, IS TO BE CONDEMNED.  THE COMMERCE CLAUSE WILL NOT SERVE
AS AN EXCUSE FOR LEGISLATING WITH RESPECT TO LABOR RELATIONS, WHICH DO
NOT CONSTITUTE A PART OF INTERSTATE COMMERCE.  SCHECHTER POULTRY CORP.
V. UNITED STATES, 295 U.S. 495; RAILROAD RETIREMENT BOARD V. ALTON R.
CO., 295 U.S. 330; UNITED STATES V. BUTLER, 297 U.S. 1. 

THE LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT AND ITS
SUBSTANTIVE PROVISIONS ARE SUFFICIENT TO DEMONSTRATE THAT THE ACT,
ALTHOUGH DISGUISED AS A REGULATION OF INTERSTATE COMMERCE, IS, IN
ACTUALITY, A REGULATION OF LABOR.  THE TERMS OF THE STATUTE APPLY TO
ALMOST EVERY EMPLOYER AND EVERY EMPLOYEE (SEC. 2), ALTHOUGH THE
JURISDICTION OF THE PETITIONER TO ENFORCE IT IS SOMEWHAT
CIRCUMSCRIBED. 

THE PROVISIONS OF THE STATUTE, IF CAREFULLY ANALYZED, WILL INDICATE
THAT CONGRESS IS PRIMARILY CONCERNED WITH THE PROTECTION AND
ESTABLISHMENT OF LABOR ORGANIZATIONS.  THE PROVISIONS CONDEMNING PLANT
UNIONS AND SANCTIONING "CLOSED SHOP" AGREEMENTS, BEAR NO REASONABLE
RELATION TO INTERSTATE COMMERCE.  SIMILARLY, THE EXPRESS PRESERVATION
OF THE RIGHT TO STRIKE INDICATES THAT CONGRESS WAS NOT INTERESTED IN
PREVENTING INTERRUPTIONS TO THE MOVEMENT OF COMMERCE.  THE INTERFERENCE
WITH THE EMPLOYER'S DISCRETION TO HIRE AND FIRE IS ANOTHER REASON FOR
BELIEVING THAT EFFICIENCY IN THE SHIPMENT OF PRODUCTS IN INTERSTATE
COMMERCE HAS NOT BEEN THE OBJECT OF THE STATUTE. 

CONGRESS HAS ENDEAVORED TO SAVE THE STATUTE FROM THE TAINT OF
INVALIDITY BY CONFINING ITS ENFORCEMENT TO TRANSACTIONS "AFFECTING
COMMERCE," WHICH THE ACT DEFINES AS TRANSACTIONS WHICH BURDEN COMMERCE
OR LEAD OR TEND TO LEAD TO A LABOR DISPUTE WHICH BURDENS COMMERCE. 
SEC. 2.  DESPITE THIS LIMITATION ON THE ENFORCEMENT OF THE ACT, THE
SUBSTANTIVE PROVISIONS MAKE NO SUCH EXCEPTION AND ARE, IN FACT, BROAD
ENOUGH TO COVER ALMOST EVERY EMPLOYMENT RELATION. 

THE PETITIONER HAS FOLLOWED THE SAME INVOLVED LINE OF REASONING IN
ENDEAVORING TO "FIND" THAT THE RESPONDENT'S OPERATIONS "AFFECT
COMMERCE."  LIKE CONGRESS, IT HAS FOUND ITSELF FACED WITH THE TASK OF
PILING PREMISE UPON PREMISE AND HYPOTHESIS UPON HYPOTHESIS TO REACH THE
CONCLUSION THAT THE DISCHARGE OF A FEW PRODUCTION EMPLOYEES AT THE
RESPONDENT'S PLANT HAS A VITAL BEARING UPON THE MOVEMENT OF INTERSTATE
COMMERCE.  WE SUBMIT THAT THE ULTIMATE FACT REMAINS THAT CONGRESS HAS
ENACTED A LABOR LAW, AND NOT A REGULATION OF COMMERCE, AND IT DOES NOT
HELP TO SUSTAIN THE PRETEXT THAT THERE MAY BE AN INDIRECT CONNECTION
BETWEEN THE TWO.  CARTER V. CARTER COAL CO., 298 U.S. 238. 

THE NATIONAL LABOR RELATIONS ACT CAN HAVE NO APPLICATION TO THE
RESPONDENT'S RELATIONS WITH ITS PRODUCTION EMPLOYEES. 

ALTHOUGH THE RESPONDENT PURCHASES RAW MATERIALS, WHICH HAVE A POINT
OF ORIGIN IN OTHER STATES, AND SHIPS A LARGE PORTION OF ITS FINISHED
PRODUCTS ACROSS STATE LINES, ITS PRODUCTION ACTIVITIES, INCLUDING ITS
EMPLOYMENT RELATIONS, ARE NOT THEREBY SUBJECTED TO THE JURISDICTION OF
CONGRESS.  HOWARD V. ILLINOIS CENTRAL R. CO., 207 U.S. 463.  THERE IS
NO LOGICAL OR LEGAL CONNECTION BETWEEN THE RESPONDENT'S LIMITED
PARTICIPATION IN INTERSTATE COMMERCE AND THE UNION AFFILIATIONS OF ITS
PRODUCTION EMPLOYEES.  ADAIR V. UNITED STATES, 208 U.S. 161; HAMMER V.
DAGENHART, 247 U.S. 251; RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295
U.S. 330. 

THE PRINCIPLE WHICH IMPEACHES THE VALIDITY OF THE NATIONAL LABOR
RELATIONS ACT, VIZ., THAT FEDERAL POWER OVER INTERSTATE COMMERCE MUST
BE CONFINED TO BONA FIDE REGULATION OF THE MOVEMENTS OF COMMERCE,
LIKEWISE PREVENTS THE APPLICATION OF THE STATUTE IN THE PRESENT CASE. 
AN UNBROKEN LINE OF DECISIONS UNDER THE COMMERCE CLAUSE HAS ESTABLISHED
THAT MANUFACTURING AND PRODUCTION ACTIVITIES ARE NOT IN OR A PART OF
INTERSTATE COMMERCE, EVEN THOUGH THEY MAY BE PRECEDED OR FOLLOWED BY
THE MOVEMENT OF MATERIALS BETWEEN STATES.  KIDD V. PEARSON, 128 U.S. 1;
ARKADELPHIA MILLING CO. V. ST. LOUIS SOUTHWESTERN RY. CO., 249 U.S.
134; OLIVER IRON CO. V. LORD, 262 U.S. 172; UTAH LIGHT & POWER CO. V.
PFOST, 286 U.S. 165; CHASSANIOL V. GREENWOOD, 291 U.S. 584; INDUSTRIAL
ASSOCIATION V. UNITED STATES, 268 U.S. 64.  ALTHOUGH MOST OF THE
DECISIONS HAVE DEALT WITH THE POLICE OR TAXING POWERS OF THE STATES,
THEY ARE BASED UPON THE FUNDAMENTAL PRINCIPLE THAT MANUFACTURING
ACTIVITIES ARE SUBJECT TO THE EXCLUSIVE JURSDICTION OF THE SEPARATE
STATES.  BACON V. ILLINOIS, 227 U.S. 504; SUSQUEHANNA COAL CO. V. SOUTH
AMBOY, 228 U.S. 665; PACKER CORP. V. UTAH, 285 U.S. 105; NASHVILLE, C.
& ST. L. RY. V. WALLACE, 288 U.S. 249; EDELMAN V. BOEING AIR TRANSPORT,
289 U.S. 249; MINNESOTA V. BLASIUS, 290 U.S. 1; FEDERAL COMPRESS CO. V.
MCLEAN, 291 U.S. 17; CORNELL V. COYNE, 192 U.S. 418; CRESCENT COTTON
OIL CO. V. MISSISSIPPI, 251 U.S. 129; HEISLER V. THOMAS COLLIERY CO.,
260 U.S. 245; OLIVER IRON CO. V. LORD, 262 U.S. 172; CHAMPLIN REFINING
CO. V. CORPORATION COMMISSION, 286 U.S. 210; UNITED MINE WORKERS V.
CORONADO COAL CO., 259 U.S. 344; UNITED LEATHER WORKERS V. HERKERT &
MEISEL TRUNK CO., 265 U.S. 457; DELAWARE, L. & W.R. CO. V. YURKONIS,
238 U.S. 439. 

THE DISTINCTION BETWEEN THE LOCAL MANUFACTURING ACTIVITIES OF A
BUSINESS AND ITS SUBSEQUENT OR PRECEDENT PARTICIPATION IN INTERSTATE
COMMERCE HAS BEEN MAINTAINED IN THE FIELD OF LABOR RELATIONS.  HAMMER
V. DAGENHART, 247 U.S. 251; INDUSTRIAL ACCIDENT COMM'N V. DAVIS, 259
U.S. 182.  EVEN THOUGH AN EMPLOYEE MAY BE EMPLOYED IN DIRECTLY
ASSISTING THE MOVEMENT OF PRODUCTS IN INTERSTATE COMMERCE, HIS
RELATIONSHIP TO HIS EMPLOYER IS A STATUS EXISTING WHOLLY WITHIN THE
STATE, WHOSE INCIDENTS, SUCH AS WAGES, HOURS OF LABOR AND THE LIKE, ARE
PURELY DOMESTIC IN CHARACTER.  CARTER V. CARTER COAL CO., 298 U.S.
238. 

CONGRESSIONAL REGULATION OF THE LABOR RELATIONS OF INTERSTATE
CARRIERS FURNISHES NO PRECEDENT FOR THE PRESENT ACT.  BECAUSE
INTERSTATE CARRIERS ARE INSTRUMENTALITIES OF THE MOVEMENT OF COMMERCE,
AND BECAUSE THEY ARE PUBLIC UTILITIES, CONGRESS HAS SUBJECTED THEM TO
AN EXHAUSTIVE SCHEME OF REGULATION, OF WHICH THE LABOR LEGISLATION IS
MERELY AN INCIDENT.  AS A RESULT, THE DECISION IN TEXAS & N.O.R. CO. V.
RAILWAY CLERKS, 281 U.S. 548, IS NOT CONTROLLING. 

DECISIONS SUCH AS STAFFORD V. WALLACE, 258 U.S. 495, AND CHICAGO
BOARD OF TRADE V. OLSEN, 262 U.S. 1, WHICH SUSTAIN FEDERAL REGULATION
OF STOCKYARDS AND GRAIN EXCHANGES, HAVE NO APPLICATION TO THE PRESENT
CASE.  GRAIN EXCHANGES AND STOCKYARDS ARE INSTRUMENTALITIES OF
INTERSTATE COMMERCE IN MUCH THE SAME SENSE AS THE ACTUAL CARRIERS OF
INTERSTATE COMMERCE.  THEY ARE FOCAL POINTS THROUGH WHICH THE STREAM OF
COMMERCE IN GRAINS AND CATTLE SWEEPS ON ITS WAY FROM PRODUCER TO THE
ULTIMATE CONSUMER.  THE ACTIVITIES WHICH WERE REGULATED IN BOTH CASES
WERE ACTIVITIES IN THE STREAM OF COMMERCE AND EXERTED A DIRECT EFFECT
UPON ITS FLOW.  NEITHER CASE SANCTIONS THE EXTENSION OF THE DOCTRINE TO
PRODUCTION ACTIVITIES WHICH MAY INDIRECTLY AFFECT THE STREAM OF
COMMERCE.  CARTER V. CARTER COAL CO., 298 U.S. 238.  CF. SWIFT & CO. V.
UNITED STATES, 196 U.S. 376; HILL V. WALLACE, 259 U.S. 44; TAGG BROS. &
MOORHEAD V. UNITED STATES, 280 U.S. 420; TYSON & BRO. V. BANTON, 273
U.S. 418. 

THE PETITIONER RELIES UPON DECISIONS WHICH HAVE UPHELD THE
APPLICATION OF THE ANTI-TRUST LAWS TO INDUSTRIAL CONSPIRACIES, SUCH AS
CORONADO COAL CO. V. UNITED MINE WORKERS, 268 U.S. 295.  THESE WERE
CASES INVOLVING CONSPIRACIES TO RESTRAIN INTERSTATE COMMERCE BY MEANS
OF LOCAL COMBINATIONS.  THE ELEMENT OF AN INTENTIONAL INTERFERENCE WITH
THE MOVEMENT OF INTERSTATE COMMERCE WAS ESSENTIAL IN THESE CASES, NOT
ONLY BECAUSE AN INTENT TO RESTRAIN COMMERCE WAS A PART OF THE
PROSCRIBED OFFENSE, BUT ALSO BECAUSE THE EXISTENCE OF SUCH AN INTENT
MADE THE EFFECT ON INTERSTATE COMMERCE NECESSARILY DIRECT.  THIS IS
SHOWN BY A COMPARISON OF THE FIRST CORONADO CASE, 259 U.S. 344, WHERE
THERE WAS NO INTENT, WITH THE SECOND CORONADO CASE, 268 U.S. 295, WHERE
THERE WAS BOTH DIRECT AND INFERENTIAL EVIDENCE OF INTENT.  CF. UNITED
LEATHER WORKERS V. HERKERT & MEISEL TRUNK CO., 265 U.S. 457. 

THE PETITIONER'S EFFORTS TO SHOW AN INTENDED RESTRAINT IN THE PRESENT
CASE ARE FUTILE.  EVEN IF A STRIKE SHOULD OCCUR AT THE RESPONDENT'S
PLANT, THE RESPONDENT COULD NOT BE HELD RESPONSIBLE FOR THE VOLUNTARY
INTERVENING ACT OF OUTSIDE AGENCIES.  THE SUGGESTION THAT THE
RESPONDENT MIGHT BE CHARGED WITH AN IMPLIED INTENT TO DESTROY
INTERSTATE TRADE, IF A LABOR DISPUTE SHOULD OCCUR, IS OBVIOUSLY
UNSOUND. 

THE CONSPIRACY CASES, SUCH AS UNITED MINE WORKERS V. CORONADO COAL
CO., 259 U.S. 344, AND LOCAL 167 V. UNITED STATES, 291 U.S. 293,
ALTHOUGH PRIMARILY CONCERNED WITH THE APPLICATION OF THE ANTI-TRUST
LAWS, PROVE THE FALLACY OF THE PETITIONER'S ARGUMENT, BECAUSE THEY
ESTABLISH THAT CONGRESS CANNOT REGULATE LOCAL TRANSACTIONS OR RELATIONS
UNLESS THEY EXERT A DIRECT EFFECT ON INTERSTATE COMMERCE.  THE
DEFINITION OF "AFFECTING COMMERCE" IN THE NATIONAL LABOR RELATIONS ACT
IS A CONFESSION OF THE INDIRECTNESS OF THE CONNECTION BETWEEN THE
RESPONDENT'S LABOR RELATIONS AND THE MOVEMENT OF INTERSTATE COMMERCE. 
SEE SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495; INDUSTRIAL
ASSOCIATION V. UNITED STATES, 268 U.S. 64.  THE PETITIONER CALLS
ATTENTION TO THE FACT THAT STRIKES MAY AND FREQUENTLY DO PRODUCE AN
INHIBITORY EFFECT ON THE MOVEMENT OF INTERSTATE TRADE TO AND FROM THE
AFFECTED AREA.  THIS IS THE FUNDAMENTAL ERROR IN THE PETITIONER'S
ARGUMENT, IN THAT IT ASSUMES THAT IT NEED ONLY ESTABLISH THE CONNECTION
BETWEEN STRIKES AND THE STOPPAGE OF COMMERCE.  THERE HAS BEEN NO STRIKE
OR LABOR DISPUTE IN THE PRESENT CASE.  IN ACTUALITY, THE PETITIONER
MEANS THAT THE RESPONDENT'S DISCHARGE OF TEN EMPLOYEES MIGHT HAVE LED
TO DISSATISFACTION, WHICH MIGHT HAVE LED TO A LABOR DISPUTE, WHICH
MIGHT HAVE LED TO A STRIKE AND A CONSEQUENT INTERRUPTION OF INTERSTATE
COMMERCE. 

THE FINDINGS OF CONGRESS THAT DISCRIMINATORY DISCHARGES MAY LEAD TO
AN INTERRUPTION OF COMMERCE, ARE UNAVAILING.  A DECLARATION BY CONGRESS
OF THE NEED OF REGULATION WILL NOT AUTOMATICALLY JUSTIFY ITS ACTION,
WHERE ITS LEGISLATIVE FINDINGS RUN COUNTER TO ESTABLISHED RULES OF
CONSTRUCTION, WHICH HOLD THAT THERE IS NO NECESSARY AND DIRECT
CONNECTION BETWEEN THE RELATIONS OF AN EMPLOYER AND HIS EMPLOYEES AND
THE MOVEMENT OF INTERSTATE COMMERCE.  IN THIS RESPECT, THE PRESENT CASE
IS CLEARLY CONTROLLED BY THE DECISION IN CARTER V. CARTER COAL CO., 298
U.S. 238. 

THERE ARE DANGEROUS IMPLICATIONS IN THE PETITIONER'S ARGUMENT.  IF IT
BE ACCEPTED, THERE WOULD BE NO REASON WHY CONGRESS SHOULD NOT USE ITS
POWER OVER INTERSTATE COMMERCE AS A PRETEXT TO STIFLE THE SOVEREIGNTY
OF THE STATES.  WE THEREFORE BELIEVE THAT THE COURT WILL NOT SUFFER THE
POWERS OF THE STATES TO BE WHITTLED AWAY BY A STATUTE WHICH PILES
SPECULATION UPON SPECULATION TO ATTAIN ITS ENDS.  UNITED STATES V.
BUTLER, 297 U.S. 1; SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495. 

THE NATIONAL LABOR RELATIONS ACT CONFERS UPON THE PETITIONER
EXCLUSIVE ORIGINAL JURISDICTION OVER CONTROVERSIES BETWEEN AN EMPLOYEE
AND HIS EMPLOYER AS TO THE PROPRIETY OF THE EMPLOYEE'S DISCHARGE, AND
THE BOARD IS AUTHORIZED TO RENDER AFFIRMATIVE RELIEF TO THE EMPLOYEE,
INCLUDING THE RESTORATION OF HIS EMPLOYMENT AND COMPENSATION FOR LOST
WAGES.  THE FINDINGS OF FACT OF THE BOARD ARE CONCLUSIVE AND ONLY
OBJECTIONS MADE BEFORE THE BOARD WILL BE HEARD.  THE ACT DOES NOT MAKE
ANY PROVISION FOR A TRIAL DE NOVO IN THE CONSTITUTIONAL COURTS ON
CONSTITUTIONAL OR JURISDICTIONAL ISSUES.    WE SUBMIT THAT THE ACT IS
INVALID BECAUSE IT AUTHORIZES THE BOARD TO AWARD A MONEY JUDGMENT,
DEPRIVING THE EMPLOYER OF HIS RIGHT TO TRIAL BY JURY IN CASES INVOLVING
MORE THAN TWENTY DOLLARS.  IF, AS THE PETITIONER CONTENDS, THE ACTION
OF THE BOARD SHOULD BE CONSIDERED IN THE NATURE OF A SUIT IN EQUITY,
WITH AUTHORITY IN THE BOARD TO AWARD A MANDATORY INJUNCTION RESTORING
EMPLOYMENT, WITH INCIDENTAL DAMAGES FOR BACK PAY, THEN THE ACT VIOLATES
THE PROVISION OF ART. III OF THE CONSTITUTION, FOR IT DEPRIVES THE
CONSTITUTIONAL COURTS OF THEIR AUTHORITY TO TRY CONSTITUTIONAL AND
JURISDICTIONAL ISSUES. 

THE PRESENT CASE PRESENTS A CONTROVERSY BETWEEN EMPLOYEES AND THE
RESPONDENT, IN WHICH THE PETITIONER HAS DIRECTED THE RESTORATION TO
EMPLOYMENT OF THE COMPLAINING EMPLOYEES, WITH BACK PAY.  THIS BEING THE
CASE, IT IS A CONTROVERSY BETWEEN PRIVATE CITIZENS, ENFORCING PRIVATE
RIGHTS.  THE FAILURE TO PROVIDE MEANS FOR A TRIAL DE NOVO OF
JURISDICTIONAL ISSUES IN SUCH A CASE IS FATAL.  CROWELL V. BENSON, 285
U.S. 22. 

THE PROCEEDINGS OF THE BOARD ARE NOT COMPARABLE TO THOSE OF THE
FEDERAL TRADE COMMISSION. 

THE PETITIONER'S ORDER CONSTITUTES AN UNLAWFUL INTERFERENCE WITH THE
RIGHT OF THE RESPONDENT TO MANAGE ITS OWN BUSINESS. 

THE LAW HAS ALWAYS BEEN HESITANT TO INTERFERE IN QUESTIONS OF
EMPLOYER-EMPLOYEE RELATIONSHIPS.  FROM THE STANDPOINT OF THE EMPLOYEE,
THE LAW HAS RECOGNIZED THAT HE SHOULD NOT BE FORCED INTO A RELATIONSHIP
WHICH MAY BE DISTASTEFUL, AND FROM THE EMPLOYER'S VIEWPOINT, THE COURTS
HAVE HELD THAT THE RIGHT TO JUDGE THE CAPABILITIES OF EMPLOYEES IS
ABSOLUTELY ESSENTIAL TO THE EFFICIENT MANAGEMENT OF THE EMPLOYER'S
BUSINESS.  THE QUESTION OF RETAINING OR DISCHARGING AN EMPLOYEE
INVOLVES DELICATE CONSIDERATIONS OF DISCRETION WHICH THE LAW IS LOATH
TO ATTEMPT TO WEIGH.  THE FACTS OF THE PRESENT CASE SHOW THE DANGERS OF
BUREAUCRATIC INTERFERENCE, IN THAT EACH DISCHARGE INVOLVED SOME
ADMITTED FAULT ON THE PART OF THE COMPLAINING EMPLOYEE, BUT THE
PETITIONER DETERMINED THAT IT WAS BETTER QUALIFIED TO DECIDE AND THAT
THE RESPONDENT'S ACTION HAD BEEN TOO DRASTIC.  THIS IS CLEARLY AN
INTERFERENCE WITH THE NORMAL RIGHT OF THE RESPONDENT TO MANAGE ITS OWN
BUSINESS, BECAUSE IT IS A DICTATORIAL USURPATION OF THE RESPONDENT'S
DISCRETION TO DETERMINE THE CAPABILITIES OF ITS EMPLOYEES. 

ANOTHER DANGEROUS IMPLICATION OF THE LAW AND OF THE PETITIONER'S
DECISION IS THAT IT CONFERS A KIND OF CIVIL SERVICE STATUS UPON UNION
EMPLOYEES, WHICH WILL INEVITABLY ENCOURAGE LAZINESS, INSOLENCE, AND
INEFFICIENCY.  THIS IS CONFIRMED BY A NOTICE WHICH THE PETITIONER, IN
ITS DECISION, HAS ORDERED THE RESPONDENT TO POST IN ITS PLANTS, TO THE
EFFECT THAT IT WILL NOT DISCHARGE MEMBERS OF THE UNION.  IT WOULD BE
THE EQUIVALENT OF INFORMING THE EMPLOYEES THAT IF THEY BECOME
AFFILIATED WITH THE UNION, THEY WILL BE THENCEFORTH IMMUNE FROM
DISCHARGE. 

WE SUBMIT THAT THE UNDERLYING PHILOSOPHY OF THE NATIONAL LABOR
RELATIONS ACT IS A CONSTANT THREAT TO THE RESPONDENT'S NORMAL RIGHT TO
MANAGE ITS OWN BUSINESS.  NOT ONLY DOES THE ACT PROVIDE, IN EFFECT,
THAT AN UNQUALIFIED BUREAU WILL SIT AS A HIGHER COURT OVER THE
RESPONDENT'S EMPLOYMENT OFFICE, BUT IT ALSO ORDAINS THAT THE RESPONDENT
MUST DEAL WITH WHATEVER UNION MAY BE SELECTED BY A MAJORITY OF ITS
EMPLOYEES AND REFUSE TO NEGOTIATE WITH OTHER EMPLOYEES OR THEIR
REPRESENTATIVES.  THE POWER WHICH IT DELEGATES TO A MAJORITY OF THE
EMPLOYEES TO BIND THE MINORITY IS ARBITRARY AND UNFAIR AND WILL
NECESSARILY LEAD TO THE SUFFOCATION OF MINORITIES AND TO THE CLOSED
SHOP, FORCING THE EMPLOYER TO HERD HIS EMPLOYEES INTO AN ORGANIZATION
WHICH IS NOT OF THEIR OWN CHOICE.  THIS WILL IN TURN SERIOUSLY DISTURB
THE DISCIPLINE AND MORALE OF THE RESPONDENT'S EMPLOYEES, WITH OBVIOUS
INJURY TO THEM AND TO THE RESPONDENT.  CF. CARTER V. CARTER COAL CO.,
298 U.S. 238. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

IN A PROCEEDING UNDER THE NATIONAL LABOR RELATIONS ACT OF 1935,  FN1
THE NATIONAL LABOR RELATIONS BOARD FOUND THAT THE RESPONDENT, JONES &
LAUGHLIN STEEL CORPORATION, HAD VIOLATED THE ACT BY ENGAGING IN UNFAIR
LABOR PRACTICES AFFECTING COMMERCE.  THE PROCEEDING WAS INSTITUTED BY
THE BEAVER VALLEY LODGE NO. 200, AFFILIATED WITH THE AMALGAMATED
ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF AMERICA, A LABOR
ORGANIZATION.  THE UNFAIR LABOR PRACTICES CHARGED WERE THAT THE
CORPORATION WAS DISCRIMINATING AGAINST MEMBERS OF THE UNION WITH REGARD
TO HIRE AND TENURE OF EMPLOYMENT, AND WAS COERCING AND INTIMIDATING ITS
EMPLOYEES IN ORDER TO INTERFERE WITH THEIR SELF-ORGANIZATION.  THE
DISCRIMINATORY AND COERCIVE ACTION ALLEGED WAS THE DISCHARGE OF CERTAIN
EMPLOYEES. 

THE NATIONAL LABOR RELATIONS BOARD, SUSTAINING THE CHARGE, ORDERED
THE CORPORATION TO CEASE AND DESIST FROM SUCH DISCRIMINATION AND
COERCION, TO OFFER REINSTATEMENT TO TEN OF THE EMPLOYEES NAMED, TO MAKE
GOOD THEIR LOSSES IN PAY, AND TO POST FOR THIRTY DAYS NOTICES THAT THE
CORPORATION WOULD NOT DISCHARGE OR DISCRIMINATE AGAINST MEMBERS, OR
THOSE DESIRING TO BECOME MEMBERS, OF THE LABOR UNION.  AS THE
CORPORATION FAILED TO COMPLY, THE BOARD PETITIONED THE CIRCUIT COURT OF
APPEALS TO ENFORCE THE ORDER.  THE COURT DENIED THE PETITION, HOLDING
THAT THE ORDER LAY BEYOND THE RANGE OF FEDERAL POWER.  83 F.(2D) 998. 
WE GRANTED CERTIORARI. 

THE SCHEME OF THE NATIONAL LABOR RELATIONS ACT - WHICH IS TOO LONG TO
BE QUOTED IN FULL - MAY BE BRIEFLY STATED.  THE FIRST SECTION SETS
FORTH FINDINGS WITH RESPECT TO THE INJURY TO COMMERCE RESULTING FROM
THE DENIAL BY EMPLOYERS OF THE RIGHT OF EMPLOYEES TO ORGANIZE AND FROM
THE REFUSAL OF EMPLOYERS TO ACCEPT THE PROCEDURE OF COLLECTIVE
BARGAINING.  THERE FOLLOWS A DECLARATION THAT IT IS THE POLICY OF THE
UNITED STATES TO ELIMINATE THESE CAUSES OF OBSTRUCTION TO THE FREE FLOW
OF COMMERCE.  FN2  THE ACT THEN DEFINES THE TERMS IT USES, INCLUDING
THE TERMS "COMMERCE" AND "AFFECTING COMMERCE."  SEC. 2.  IT CREATES THE
NATIONAL LABOR RELATIONS BOARD AND PRESCRIBES ITS ORGANIZATION.  SECS.
3-6.  IT SETS FORTH THE RIGHT OF EMPLOYEES TO SELF-ORGANIZATION AND TO
BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING. 
SEC. 7.  IT DEFINES "UNFAIR LABOR PRACTICES."  SEC. 8.  IT LAYS DOWN
RULES AS TO THE REPRESENTATION OF EMPLOYEES FOR THE PURPOSE OF
COLLECTIVE BARGAINING.  SEC. 9.  THE BOARD IS EMPOWERED TO PREVENT THE
DESCRIBED UNFAIR LABOR PRACTICES AFFECTING COMMERCE AND THE ACT
PRESCRIBES THE PROCEDURE TO THAT END.  THE BOARD IS AUTHORIZED TO
PETITION DESIGNATED COURTS TO SECURE THE ENFORCEMENT OF ITS ORDERS. 
THE FINDINGS OF THE BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE,
ARE TO BE CONCLUSIVE.  IF EITHER PARTY ON APPLICATION TO THE COURT
SHOWS THAT ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR THE FAILURE TO ADDUCE SUCH EVIDENCE IN THE
HEARINGS BEFORE THE BOARD, THE COURT MAY ORDER THE ADDITIONAL EVIDENCE
TO BE TAKEN.  ANY PERSON AGGRIEVED BY A FINAL ORDER OF THE BOARD MAY
OBTAIN A REVIEW IN THE DESIGNATED COURTS WITH THE SAME PROCEDURE AS IN
THE CASE OF AN APPLICATION BY THE BOARD FOR THE ENFORCEMENT OF ITS
ORDER.  SEC. 10.  THE BOARD HAS BROAD POWERS OF INVESTIGATION.  SEC.
11.  INTERFERENCE WITH MEMBERS OF THE BOARD OR ITS AGENTS IN THE
PERFORMANCE OF THEIR DUTIES IS PUNISHABLE BY FINE AND IMPRISONMENT. 
SEC. 12.  NOTHING IN THE ACT IS TO BE CONSTRUED TO INTERFERE WITH THE
RIGHT TO STRIKE.  SEC. 13.  THERE IS A SEPARABILITY CLAUSE TO THE
EFFECT THAT IF ANY PROVISION OF THE ACT OR ITS APPLICATION TO ANY
PERSON OR CIRCUMSTANCES SHALL BE HELD INVALID, THE REMAINDER OF THE ACT
OR ITS APPLICATION TO OTHER PERSONS OR CIRCUMSTANCES SHALL NOT BE
AFFECTED.  SEC. 15.  THE PARTICULAR PROVISIONS WHICH ARE INVOLVED IN
THE INSTANT CASE WILL BE CONSIDERED MORE IN DETAIL IN THE COURSE OF THE
DISCUSSION. 

THE PROCEDURE IN THE INSTANT CASE FOLLOWED THE STATUTE.  THE LABOR
UNION FILED WITH THE BOARD ITS VERIFIED CHARGE.  THE BOARD THEREUPON
ISSUED ITS COMPLAINT AGAINST THE RESPONDENT ALLEGING THAT ITS ACTION IN
DISCHARGING THE EMPLOYEES IN QUESTION CONSTITUTED UNFAIR LABOR
PRACTICES AFFECTING COMMERCE WITHIN THE MEANING OF SEC. 8, SUBDIVISIONS
(1) AND (3), AND SEC. 2, SUBDIVISIONS (6) AND (7) OF THE ACT. 
RESPONDENT, APPEARING SPECIALLY FOR THE PURPOSE OF OBJECTING TO THE
JURISDICTION OF THE BOARD, FILED ITS ANSWER.  RESPONDENT ADMITTED THE
DISCHARGES, BUT ALLEGED THAT THEY WERE MADE BECAUSE OF INEFFICIENCY OR
VIOLATION OF RULES OR FOR OTHER GOOD REASONS AND WERE NOT ASCRIBABLE TO
UNION MEMBERSHIP OR ACTIVITIES.  AS AN AFFIRMATIVE DEFENSE RESPONDENT
CHALLENGED THE CONSTITUTIONAL VALIDITY OF THE STATUTE AND ITS
APPLICABILITY IN THE INSTANT CASE.  NOTICE OF HEARING WAS GIVEN AND
RESPONDENT APPEARED BY COUNSEL.  THE BOARD FIRST TOOK UP THE ISSUE OF
JURISDICTION AND EVIDENCE WAS PRESENTED BY BOTH THE BOARD AND THE
RESPONDENT.  RESPONDENT THEN MOVED TO DISMISS THE COMPLAINT FOR LACK OF
JURISDICTION; AND, ON DENIAL OF THAT MOTION, RESPONDENT IN ACCORDANCE
WITH ITS SPECIAL APPEARANCE WITHDREW FROM FURTHER PARTICIPATION IN THE
HEARING.  THE BOARD RECEIVED EVIDENCE UPON THE MERITS AND AT ITS CLOSE
MADE ITS FINDINGS AND ORDER. 

CONTESTING THE RULING OF THE BOARD, THE RESPONDENT ARGUES (1) THAT
THE ACT IS IN REALITY A REGULATION OF LABOR RELATIONS AND NOT OF
INTERSTATE COMMERCE; (2) THAT THE ACT CAN HAVE NO APPLICATION TO THE
RESPONDENT'S RELATIONS WITH ITS PRODUCTION EMPLOYEES BECAUSE THEY ARE
NOT SUBJECT TO REGULATION BY THE FEDERAL GOVERNMENT; AND (3) THAT THE
PROVISIONS OF THE ACT VIOLATE SEC. 2 OF ARTICLE III AND THE FIFTH AND
SEVENTH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES. 

THE FACTS AS TO THE NATURE AND SCOPE OF THE BUSINESS OF THE JONES &
LAUGHLIN STEEL CORPORATION HAVE BEEN FOUND BY THE LABOR BOARD AND, SO
FAR AS THEY ARE ESSENTIAL TO THE DETERMINATION OF THIS CONTROVERSY,
THEY ARE NOT IN DISPUTE.  THE LABOR BOARD HAS FOUND:  THE CORPORATION
IS ORGANIZED UNDER THE LAWS OF PENNSYLVANIA AND HAS ITS PRINCIPAL
OFFICE AT PITTSBURGH.  IT IS ENGAGED IN THE BUSINESS OF MANUFACTURING
IRON AND STEEL IN PLANTS SITUATED IN PITTSBURGH AND NEARBY ALIQUIPPA,
PENNSYLVANIA.  IT MANUFACTURES AND DISTRIBUTES A WIDELY DIVERSIFIED
LINE OF STEEL AND PIG IRON, BEING THE FOURTH LARGEST PRODUCER OF STEEL
IN THE UNITED STATES.  WITH ITS SUBSIDIARIES - NINETEEN IN NUMBER - IT
IS A COMPLETELY INTEGRATED ENTERPRISE, OWNING AND OPERATING ORE, COAL
AND LIMESTONE PROPERTIES, LAKE AND RIVER TRANSPORTATION FACILITIES AND
TERMINAL RAILROADS LOCATED AT ITS MANUFACTURING PLANTS.  IT OWNS OR
CONTROLS MINES IN MICHIGAN AND MINNESOTA.  IT OPERATES FOUR ORE
STEAMSHIPS ON THE GREAT LAKES, USED IN THE TRANSPORTATION OF ORE TO ITS
FACTORIES.  IT OWNS COAL MINES IN PENNSYLVANIA.  IT OPERATES TOWBOATS
AND STEAM BARGES USED IN CARRYING COAL TO ITS FACTORIES.  IT OWNS
LIMESTONE PROPERTIES IN VARIOUS PLACES IN PENNSYLVANIA AND WEST
VIRGINIA.  IT OWNS THE MONONGAHELA CONNECTING RAILROAD WHICH CONNECTS
THE PLANTS OF THE PITTSBURGH WORKS AND FORMS AN INTERCONNECTION WITH
THE PENNSYLVANIA, NEW YORK CENTRAL AND BALTIMORE AND OHIO RAILROAD
SYSTEMS.  IT OWNS THE ALIQUIPPA AND SOUTHERN RAILROAD COMPANY WHICH
CONNECTS THE ALIQUIPPA WORKS WITH THE PITTSBURGH AND LAKE ERIE, PART OF
THE NEW YORK CENTRAL SYSTEM.  MUCH OF ITS PRODUCT IS SHIPPED TO ITS
WAREHOUSES IN CHICAGO, DETROIT, CINCINNATI AND MEMPHIS,  - TO THE LAST
TWO PLACES BY MEANS OF ITS OWN BARGES AND TRANSPORTATION EQUIPMENT.  IN
LONG ISLAND CITY, NEW YORK, AND IN NEW ORLEANS IT OPERATES STRUCTURAL
STEEL FABRICATING SHOPS IN CONNECTION WITH THE WAREHOUSING OF SEMI
FINISHED MATERIALS SENT FROM ITS WORKS.  THROUGH ONE OF ITS WHOLLY
OWNED SUBSIDIARIES IT OWNS, LEASES AND OPERATES STORES, WAREHOUSES AND
YARDS FOR THE DISTRIBUTION OF EQUIPMENT AND SUPPLIES FOR DRILLING AND
OPERATING OIL AND GAS WELLS AND FOR PIPE LINES, REFINERIES AND PUMPING
STATIONS.  IT HAS SALES OFFICES IN TWENTY CITIES IN THE UNITED STATES
AND A WHOLLY-OWNED SUBSIDIARY WHICH IS DEVOTED EXCLUSIVELY TO
DISTRIBUTING ITS PRODUCT IN CANADA.  APPROXIMATELY 75 PER CENT. OF ITS
PRODUCT IS SHIPPED OUT OF PENNSYLVANIA. 

SUMMARIZING THESE OPERATIONS, THE LABOR BOARD CONCLUDED THAT THE
WORKS IN PITTSBURGH AND ALIQUIPPA "MIGHT BE LIKENED TO THE HEART OF A
SELF-CONTAINED, HIGHLY INTEGRATED BODY.  THEY DRAW IN THE RAW MATERIALS
FROM MICHIGAN, MINNESOTA, WEST VIRGINIA, PENNSYLVANIA IN PART THROUGH
ARTERIES AND BY MEANS CONTROLLED BY THE RESPONDENT; THEY TRANSFORM THE
MATERIALS AND THEN PUMP THEM OUT TO ALL PARTS OF THE NATION THROUGH THE
VAST MECHANISM WHICH THE RESPONDENT HAS ELABORATED." 

TO CARRY ON THE ACTIVITIES OF THE ENTIRE STEEL INDUSTRY, 33,000 MEN
MINE ORE, 44,000 MEN MINE COAL, 4,000 MEN QUARRY LIMESTONE, 16,000 MEN
MANUFACTURE COKE, 343,000 MEN MANUFACTURE STEEL, AND 83,000 MEN
TRANSPORT ITS PRODUCT.  RESPONDENT HAS ABOUT 10,000 EMPLOYEES IN ITS
ALIQUIPPA PLANT, WHICH IS LOCATED IN A COMMUNITY OF ABOUT 30,000
PERSONS. 

RESPONDENT POINTS TO EVIDENCE THAT THE ALIQUIPPA PLANT, IN WHICH THE
DISCHARGED MEN WERE EMPLOYED, CONTAINS COMPLETE FACILITIES FOR THE
PRODUCTION OF FINISHED AND SEMI-FINISHED IRON AND STEEL PRODUCTS FROM
RAW MATERIALS; THAT ITS WORKS CONSIST PRIMARILY OF A BY-PRODUCT COKE
PLANT FOR THE PRODUCTION OF COKE; BLAST FURNACES FOR THE PRODUCTION OF
PIG IRON; OPEN HEARTH FURNACES AND BESSEMER CONVERTERS FOR THE
PRODUCTION OF STEEL; BLOOMING MILLS FOR THE REDUCTION OF STEEL INGOTS
INTO SMALLER SHAPES; AND A NUMBER OF FINISHING MILLS SUCH AS STRUCTURAL
MILLS, ROD MILLS, WIRE MILLS AND THE LIKE.  IN ADDITION THERE ARE OTHER
BUILDINGS, STRUCTURES AND EQUIPMENT, STORAGE YARDS, DOCKS AND AN INTRA
PLANT STORAGE SYSTEM.  RESPONDENT'S OPERATIONS AT THESE WORKS ARE
CARRIED ON IN TWO DISTINCT STAGES, THE FIRST BEING THE CONVERSION OF
RAW MATERIALS INTO PIG IRON AND THE SECOND BEING THE MANUFACTURE OF
SEMI-FINISHED AND FINISHED IRON AND STEEL PRODUCTS; AND IN BOTH CASES
THE OPERATIONS RESULT IN SUBSTANTIALLY CHANGING THE CHARACTER, UTILITY
AND VALUE OF THE MATERIALS WROUGHT UPON, WHICH IS APPARENT FROM THE
NATURE AND EXTENT OF THE PROCESSES TO WHICH THEY ARE SUBJECTED AND
WHICH RESPONDENT FULLY DESCRIBES.  RESPONDENT ALSO DIRECTS ATTENTION TO
THE FACT THAT THE IRON ORE WHICH IS PROCURED FROM MINES IN MINNESOTA
AND MICHIGAN AND TRANSPORTED TO RESPONDENT'S PLANT IS STORED IN STOCK
PILES FOR FUTURE USE, THE AMOUNT OF ORE IN STORAGE VARYING WITH THE
SEASON BUT USUALLY BEING ENOUGH TO MAINTAIN OPERATIONS FROM NINE TO TEN
MONTHS; THAT THE COAL WHICH IS PROCURED FROM THE MINES OF A SUBSIDIARY
LOCATED IN PENNSYLVANIA AND TAKEN TO THE PLANT AT ALIQUIPPA IS THERE,
LIKE ORE, STORED FOR FUTURE USE, APPROXIMATELY TWO TO THREE MONTHS'
SUPPLY OF COAL BEING ALWAYS ON HAND; AND THAT THE LIMESTONE WHICH IS
OBTAINED IN PENNSYLVANIA AND WEST VIRGINIA IS ALSO STORED IN AMOUNTS
USUALLY ADEQUATE TO RUN THE BLAST FURNACES FOR A FEW WEEKS.  VARIOUS
DETAILS OF OPERATION, TRANSPORTATION, AND DISTRIBUTION ARE ALSO
MENTIONED WHICH FOR THE PRESENT PURPOSE IT IS NOT NECESSARY TO DETAIL. 

PRACTICALLY ALL THE FACTUAL EVIDENCE IN THE CASE, EXCEPT THAT WHICH
DEALT WITH THE NATURE OF RESPONDENT'S BUSINESS, CONCERNED ITS RELATIONS
WITH THE EMPLOYEES IN THE ALIQUIPPA PLANT WHOSE DISCHARGE WAS THE
SUBJECT OF THE COMPLAINT.  THESE EMPLOYEES WERE ACTIVE LEADERS IN THE
LABOR UNION.  SEVERAL WERE OFFICERS AND OTHERS WERE LEADERS OF
PARTICULAR GROUPS.  TWO OF THE EMPLOYEES WERE MOTOR INSPECTORS; ONE WAS
A TRACTOR DRIVER; THREE WERE CRANE OPERATORS; ONE WAS A WASHER IN THE
COKE PLANT; AND THREE WERE LABORERS.  THREE OTHER EMPLOYEES WERE
MENTIONED IN THE COMPLAINT BUT IT WAS WITHDRAWN AS TO ONE OF THEM AND
NO EVIDENCE WAS HEARD ON THE ACTION TAKEN WITH RESPECT TO THE OTHER
TWO. 

WHILE RESPONDENT CRITICISES THE EVIDENCE AND THE ATTITUDE OF THE
BOARD, WHICH IS DESCRIBED AS BEING HOSTILE TOWARD EMPLOYERS AND
PARTICULARLY TOWARD THOSE WHO INSISTED UPON THEIR CONSTITUTIONAL
RIGHTS, RESPONDENT DID NOT TAKE ADVANTAGE OF ITS OPPORTUNITY TO PRESENT
EVIDENCE TO REFUTE THAT WHICH WAS OFFERED TO SHOW DISCRIMINATION AND
COERCION.  IN THIS SITUATION, THE RECORD PRESENTS NO GROUND FOR SETTING
ASIDE THE ORDER OF THE BOARD SO FAR AS THE FACTS PERTAINING TO THE
CIRCUMSTANCES AND PURPOSE OF THE DISCHARGE OF THE EMPLOYEES ARE
CONCERNED.  UPON THAT POINT IT IS SUFFICIENT TO SAY THAT THE EVIDENCE
SUPPORTS THE FINDINGS OF THE BOARD THAT RESPONDENT DISCHARGED THESE MEN
"BECAUSE OF THEIR UNION ACTIVITY AND FOR THE PURPOSE OF DISCOURAGING
MEMBERSHIP IN THE UNION."  WE TURN TO THE QUESTIONS OF LAW WHICH
RESPONDENT URGES IN CONTESTING THE VALIDITY AND APPLICATION OF THE
ACT. 

FIRST.  THE SCOPE OF THE ACT.  - THE ACT IS CHALLENGED IN ITS
ENTIRETY AS AN ATTEMPT TO REGULATE ALL INDUSTRY, THUS INVADING THE
RESERVED POWERS OF THE STATES OVER THEIR LOCAL CONCERNS.  IT IS
ASSERTED THAT THE REFERENCES IN THE ACT TO INTERSTATE AND FOREIGN
COMMERCE ARE COLORABLE AT BEST; THAT THE ACT IS NOT A TRUE REGULATION
OF SUCH COMMERCE OR OF MATTERS WHICH DIRECTLY AFFECT IT BUT ON THE
CONTRARY HAS THE FUNDAMENTAL OBJECT OF PLACING UNDER THE COMPULSORY
SUPERVISION OF THE FEDERAL GOVERNMENT ALL INDUSTRIAL LABOR RELATIONS
WITHIN THE NATION.  THE ARGUMENT SEEKS SUPPORT IN THE BROAD WORDS OF
THE PREAMBLE (SECTION ONE)  FN3  AND IN THE SWEEP OF THE PROVISIONS OF
THE ACT, AND IT IS FURTHER INSISTED THAT ITS LEGISLATIVE HISTORY SHOWS
AN ESSENTIAL UNIVERSAL PURPOSE IN THE LIGHT OF WHICH ITS SCOPE CANNOT
BE LIMITED BY EITHER CONSTRUCTION OR BY THE APPLICATION OF THE
SEPARABILITY CLAUSE. 

IF THIS CONCEPTION OF TERMS, INTENT AND CONSEQUENT INSEPARABILITY
WERE SOUND, THE ACT WOULD NECESSARILY FALL BY REASON OF THE LIMITATION
UPON THE FEDERAL POWER WHICH INHERES IN THE CONSTITUTIONAL GRANT, AS
WELL AS BECAUSE OF THE EXPLICIT RESERVATION OF THE TENTH AMENDMENT. 
SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495, 549, 550, 554.  THE
AUTHORITY OF THE FEDERAL GOVERNMENT MAY NOT BE PUSHED TO SUCH AN
EXTREME AS TO DESTROY THE DISTINCTION, WHICH THE COMMERCE CLAUSE ITSELF
ESTABLISHES, BETWEEN COMMERCE "AMONG THE SEVERAL STATES" AND THE
INTERNAL CONCERNS OF A STATE.  THAT DISTINCTION BETWEEN WHAT IS
NATIONAL AND WHAT IS LOCAL IN THE ACTIVITIES OF COMMERCE IS VITAL TO
THE MAINTENANCE OF OUR FEDERAL SYSTEM.  ID. 

BUT WE ARE NOT AT LIBERTY TO DENY EFFECT TO SPECIFIC PROVISIONS,
WHICH CONGRESS HAS CONSTITUTIONAL POWER TO ENACT, BY SUPERIMPOSING UPON
THEM INFERENCES FROM GENERAL LEGISLATIVE DECLARATIONS OF AN AMBIGUOUS
CHARACTER, EVEN IF FOUND IN THE SAME STATUTE.  THE CARDINAL PRINCIPLE
OF STATUTORY CONSTRUCTION IS TO SAVE AND NOT TO DESTROY.  WE HAVE
REPEATEDLY HELD THAT AS BETWEEN TWO POSSIBLE INTERPRETATIONS OF A
STATUTE, BY ONE OF WHICH IT WOULD BE UNCONSTITUTIONAL AND BY THE OTHER
VALID, OUR PLAIN DUTY IS TO ADOPT THAT WHICH WILL SAVE THE ACT.  EVEN
TO AVOID A SERIOUS DOUBT THE RULE IS THE SAME.  FEDERAL TRADE COMM'N V.
AMERICAN TOBACCO CO., 264 U.S. 298, 307; PANAMA R. CO. V. JOHNSON, 264
U.S. 375, 390; MISSOURI PACIFIC R. CO. V. BOONE, 270 U.S. 466, 472;
BLODGETT V. HOLDEN, 275 U.S. 142, 148; RICHMOND SCREW ANCHOR CO. V.
UNITED STATES, 275 U.S. 331, 346. 

WE THINK IT CLEAR THAT THE NATIONAL LABOR RELATIONS ACT MAY BE
CONSTRUED SO AS TO OPERATE WITHIN THE SPHERE OF CONSTITUTIONAL
AUTHORITY.  THE JURISDICTION CONFERRED UPON THE BOARD, AND INVOKED IN
THIS INSTANCE, IS FOUND IN SEC. 10(A), WHICH PROVIDES: 

"SEC. 10(A).  THE BOARD IS EMPOWERED, AS HEREINAFTER PROVIDED, TO
PREVENT ANY PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED
IN SECTION 8) AFFECTING COMMERCE." 

THE CRITICAL WORDS OF THIS PROVISION, PRESCRIBING THE LIMITS OF THE
BOARD'S AUTHORITY IN DEALING WITH THE LABOR PRACTICES, ARE "AFFECTING
COMMERCE."  THE ACT SPECIFICALLY DEFINES THE "COMMERCE" TO WHICH IT
REFERS (SEC. 2(6)): 

"THE TERM 'COMMERCE' MEANS TRADE, TRAFFIC, COMMERCE, TRANSPORTATION,
OR COMMUNICATION AMONG THE SEVERAL STATES, OR BETWEEN THE DISTRICT OF
COLUMBIA OR ANY TERRITORY OF THE UNITED STATES AND ANY STATE OR OTHER
TERRITORY, OR BETWEEN ANY FOREIGN COUNTRY AND ANY STATE, TERRITORY, OR
THE DISTRICT OF COLUMBIA, OR WITHIN THE DISTRICT OF COLUMBIA OR ANY
TERRITORY, OR BETWEEN POINTS IN THE SAME STATE BUT THROUGH ANY OTHER
STATE OR ANY TERRITORY OR THE DISTRICT OF COLUMBIA OR ANY FOREIGN
COUNTRY." 

THERE CAN BE NO QUESTION THAT THE COMMERCE THUS CONTEMPLATED BY THE
ACT (ASIDE FROM THAT WITHIN A TERRITORY OR THE DISTRICT OF COLUMBIA) IS
INTERSTATE AND FOREIGN COMMERCE IN THE CONSTITUTIONAL SENSE.  THE ACT
ALSO DEFINES THE TERM "AFFECTING COMMERCE" (SEC. 2(7)): 

"THE TERM 'AFFECTING COMMERCE' MEANS IN COMMERCE, OR BURDENING OR
OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE, OR HAVING LED OR
TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE OR
THE FREE FLOW OF COMMERCE." 

THIS DEFINITION IS ONE OF EXCLUSION AS WELL AS INCLUSION.  THE GRANT
OF AUTHORITY TO THE BOARD DOES NOT PURPORT TO EXTEND TO THE
RELATIONSHIP BETWEEN ALL INDUSTRIAL EMPLOYEES AND EMPLOYERS.  ITS TERMS
DO NOT IMPOSE COLLECTIVE BARGAINING UPON ALL INDUSTRY REGARDLESS OF
EFFECTS UPON INTERSTATE OR FOREIGN COMMERCE.  IT PURPORTS TO REACH ONLY
WHAT MAY BE DEEMED TO BURDEN OR OBSTRUCT THAT COMMERCE AND, THUS
QUALIFIED, IT MUST BE CONSTRUED AS CONTEMPLATING THE EXERCISE OF
CONTROL WITHIN CONSTITUTIONAL BOUNDS.  IT IS A FAMILIAR PRINCIPLE THAT
ACTS WHICH DIRECTLY BURDEN OR OBSTRUCT INTERSTATE OR FOREIGN COMMERCE,
OR ITS FREE FLOW, ARE WITHIN THE REACH OF THE CONGRESSIONAL POWER. 
ACTS HAVING THAT EFFECT ARE NOT RENDERED IMMUNE BECAUSE THEY GROW OUT
OF LABOR DISPUTES.  SEE TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S.
548, 570; SCHECHTER CORP. V. UNITED STATES, SUPRA, PP. 544, 545;
VIRGINIAN RAILWAY V. SYSTEM FEDERATION, NO. 40, 300 U.S. 515.  IT IS
THE EFFECT UPON COMMERCE, NOT THE SOURCE OF THE INJURY, WHICH IS THE
CRITERION.  SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1, 51.  WHETHER
OR NOT PARTICULAR ACTION DOES AFFECT COMMERCE IN SUCH A CLOSE AND
INTIMATE FASHION AS TO BE SUBJECT TO FEDERAL CONTROL, AND HENCE TO LIE
WITHIN THE AUTHORITY CONFERRED UPON THE BOARD, IS LEFT BY THE STATUTE
TO BE DETERMINED AS INDIVIDUAL CASES ARISE.  WE ARE THUS TO INQUIRE
WHETHER IN THE INSTANT CASE THE CONSTITUTIONAL BOUNDARY HAS BEEN
PASSED. 

SECOND.  THE UNFAIR LABOR PRACTICES IN QUESTION.  - THE UNFAIR LABOR
PRACTICES FOUND BY THE BOARD ARE THOSE DEFINED IN SEC. 8, SUBDIVISIONS
(1) AND (3).  THESE PROVIDE: 

SEC. 8.  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 7." 

"(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:..."  FN4 


"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
CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID OR PROTECTION." 

THUS, IN ITS PRESENT APPLICATION, THE STATUTE GOES NO FURTHER THAN TO
SAFEGUARD THE RIGHT OF EMPLOYEES TO SELF-ORGANIZATION AND TO SELECT
REPRESENTATIVES OF THEIR OWN CHOOSING FOR COLLECTIVE BARGAINING OR
OTHER MUTUAL PROTECTION WITHOUT RESTRAINT OR COERCION BY THEIR
EMPLOYER. 

THAT IS A FUNDAMENTAL RIGHT.  EMPLOYEES HAVE AS CLEAR A RIGHT TO
ORGANIZE AND SELECT THEIR REPRESENTATIVES FOR LAWFUL PURPOSES AS THE
RESPONDENT HAS TO ORGANIZE ITS BUSINESS AND SELECT ITS OWN OFFICERS AND
AGENTS.  DISCRIMINATION AND COERCION TO PREVENT THE FREE EXERCISE OF
THE RIGHT OF EMPLOYEES TO SELF-ORGANIZATION AND REPRESENTATION IS A
PROPER SUBJECT FOR CONDEMNATION BY COMPETENT LEGISLATIVE AUTHORITY. 
LONG AGO WE STATED THE REASON FOR LABOR ORGANIZATIONS.  WE SAID THAT
THEY WERE ORGANIZED OUT OF THE NECESSITIES OF THE SITUATION; THAT A
SINGLE EMPLOYEE WAS HELPLESS IN DEALING WITH AN EMPLOYER; THAT HE WAS
DEPENDENT ORDINARILY ON HIS DAILY WAGE FOR THE MAINTENANCE OF HIMSELF
AND FAMILY; THAT IF THE EMPLOYER REFUSED TO PAY HIM THE WAGES THAT HE
THOUGHT FAIR, HE WAS NEVERTHELESS UNABLE TO LEAVE THE EMPLOY AND RESIST
ARBITRARY AND UNFAIR TREATMENT; THAT UNION WAS ESSENTIAL TO GIVE
LABORERS OPPORTUNITY TO DEAL ON AN EQUALITY WITH THEIR EMPLOYER. 
AMERICAN STEEL FOUNDRIES V. TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S.
184, 209.  WE REITERATED THESE VIEWS WHEN WE HAD UNDER CONSIDERATION
THE RAILWAY LABOR ACT OF 1926.  FULLY RECOGNIZING THE LEGALITY OF
COLLECTIVE ACTION ON THE PART OF EMPLOYEES IN ORDER TO SAFEGUARD THEIR
PROPER INTERESTS, WE SAID THAT CONGRESS WAS NOT REQUIRED TO IGNORE THIS
RIGHT BUT COULD SAFEGUARD IT.  CONGRESS COULD SEEK TO MAKE APPROPRIATE
COLLECTIVE ACTION OF EMPLOYEES AN INSTRUMENT OF PEACE RATHER THAN OF
STRIFE.  WE SAID THAT SUCH COLLECTIVE ACTION WOULD BE A MOCKERY IF
REPRESENTATION WERE MADE FUTILE BY INTERFERENCE WITH FREEDOM OF
CHOICE.  HENCE THE PROHIBITION BY CONGRESS OF INTERFERENCE WITH THE
SELECTION OF REPRESENTATIVES FOR THE PURPOSE OF NEGOTIATION AND
CONFERENCE BETWEEN EMPLOYERS AND EMPLOYEES, "INSTEAD OF BEING AN
INVASION OF THE CONSTITUTIONAL RIGHT OF EITHER, WAS BASED ON THE
RECOGNITION OF THE RIGHTS OF BOTH."  TEXAS & N.O.R. CO. V. RAILWAY
CLERKS, SUPRA.  WE HAVE REASSERTED THE SAME PRINCIPLE IN SUSTAINING THE
APPLICATION OF THE RAILWAY LABOR ACT AS AMENDED IN 1934.  VIRGINIAN
RAILWAY CO. V. SYSTEM FEDERATION, NO. 40, SUPRA. 

THIRD.  THE APPLICATION OF THE ACT TO EMPLOYEES ENGAGED IN
PRODUCTION.  - THE PRINCIPLE INVOLVED.  - RESPONDENT SAYS THAT WHATEVER
MAY BE SAID OF EMPLOYEES ENGAGED IN INTERSTATE COMMERCE, THE INDUSTRIAL
RELATIONS AND ACTIVITIES IN THE MANUFACTURING DEPARTMENT OF
RESPONDENT'S ENTERPRISE ARE NOT SUBJECT TO FEDERAL REGULATION.  THE
ARGUMENT RESTS UPON THE PROPOSITION THAT MANUFACTURING IN ITSELF IS NOT
COMMERCE.  KIDD V. PEARSON, 128 U.S. 1, 20, 21; UNITED MINE WORKERS V.
CORONADO COAL CO., 259 U.S. 344, 407, 408; OLIVER IRON CO. V. LORD, 262
U.S. 172, 178; UNITED LEATHER WORKERS V. HERKERT & MEISEL TRUNK CO.,
265 U.S. 457, 465; INDUSTRIAL ASSOCIATION V. UNITED STATES, 268 U.S.
64, 82; CORONADO COAL CO. V. UNITED MINE WORKERS, 268 U.S. 295, 310;
SCHECHTER CORP. V. UNITED STATES, SUPRA, P. 547; CARTER V. CARTER COAL
CO., 298 U.S. 238, 304, 317, 327. 

THE GOVERNMENT DISTINGUISHES THESE CASES.  THE VARIOUS PARTS OF
RESPONDENT'S ENTERPRISE ARE DESCRIBED AS INTERDEPENDENT AND AS THUS
INVOLVING "A GREAT MOVEMENT OF IRON ORE, COAL AND LIMESTONE ALONG WELL
DEFINED PATHS TO THE STEEL MILLS, THENCE THROUGH THEM, AND THENCE IN
THE FORM OF STEEL PRODUCTS INTO THE CONSUMING CENTERS OF THE COUNTRY -
A DEFINITE AND WELL-UNDERSTOOD COURSE OF BUSINESS."  IT IS URGED THAT
THESE ACTIVITIES CONSTITUTE A "STREAM" OR "FLOW" OF COMMERCE, OF WHICH
THE ALIQUIPPA MANUFACTURING PLANT IS THE FOCAL POINT, AND THAT
INDUSTRIAL STRIFE AT THAT POINT WOULD CRIPPLE THE ENTIRE MOVEMENT. 
REFERENCE IS MADE TO OUR DECISION SUSTAINING THE PACKERS AND STOCKYARDS
ACT.  FN5  STAFFORD V. WALLACE, 258 U.S. 495.  THE COURT FOUND THAT THE
STOCKYARDS WERE BUT A "THROAT" THROUGH WHICH THE CURRENT OF COMMERCE
FLOWED AND THE TRANSACTIONS WHICH THERE OCCURRED COULD NOT BE SEPARATED
FROM THAT MOVEMENT.  HENCE THE SALES AT THE STOCKYARDS WERE NOT
REGARDED AS MERELY LOCAL TRANSACTIONS, FOR WHILE THEY CREATED "A LOCAL
CHANGE OF TITLE" THEY DID NOT "STOP THE FLOW," BUT MERELY CHANGED THE
PRIVATE INTERESTS IN THE SUBJECT OF THE CURRENT.  DISTINGUISHING THE
CASES WHICH UPHELD THE POWER OF THE STATE TO IMPOSE A NON
DISCRIMINATORY TAX UPON PROPERTY WHICH THE OWNER INTENDED TO TRANSPORT
TO ANOTHER STATE, BUT WHICH WAS NOT IN ACTUAL TRANSIT AND WAS HELD
WITHIN THE STATE SUBJECT TO THE DISPOSITION OF THE OWNER, THE COURT
REMARKED:  "THE QUESTION, IT SHOULD BE OBSERVED, IS NOT WITH RESPECT TO
THE EXTENT OF THE POWER OF CONGRESS TO REGULATE INTERSTATE COMMERCE,
BUT WHETHER A PARTICULAR EXERCISE OF STATE POWER IN VIEW OF ITS NATURE
AND OPERATION MUST BE DEEMED TO BE IN CONFLICT WITH THIS PARAMOUNT
AUTHORITY."  ID., P. 526.  SEE MINNESOTA V. BLASIUS, 290 U.S. 1, 8. 
APPLYING THE DOCTRINE OF STAFFORD V. WALLACE, SUPRA, THE COURT
SUSTAINED THE GRAIN FUTURES ACT OF 1922  FN6 WITH RESPECT TO
TRANSACTIONS ON THE CHICAGO BOARD OF TRADE, ALTHOUGH THESE TRANSACTIONS
WERE "NOT IN AND OF THEMSELVES INTERSTATE COMMERCE."  CONGRESS HAD
FOUND THAT THEY HAD BECOME "A CONSTANTLY RECURRING BURDEN AND
OBSTRUCTION TO THAT COMMERCE."  CHICAGO BOARD OF TRADE V. OLSEN, 262
U.S. 1, 32; COMPARE HILL V. WALLACE, 259 U.S. 44, 69.  SEE, ALSO, TAGG
BROS. & MOORHEAD V. UNITED STATES, 280 U.S. 420. 

RESPONDENT CONTENDS THAT THE INSTANT CASE PRESENTS MATERIAL
DISTINCTIONS.  RESPONDENT SAYS THAT THE ALIQUIPPA PLANT IS EXTENSIVE IN
SIZE AND REPRESENTS A LARGE INVESTMENT IN BUILDINGS, MACHINERY AND
EQUIPMENT.  THE RAW MATERIALS WHICH ARE BROUGHT TO THE PLANT ARE
DELAYED FOR LONG PERIODS AND, AFTER BEING SUBJECTED TO MANUFACTURING
PROCESSES, "ARE CHANGED SUBSTANTIALLY AS TO CHARACTER, UTILITY AND
VALUE."  THE FINISHED PRODUCTS WHICH EMERGE "ARE TO A LARGE EXTENT
MANUFACTURED WITHOUT REFERENCE TO PRE-EXISTING ORDERS AND CONTRACTS AND
ARE ENTIRELY DIFFERENT FROM THE RAW MATERIALS WHICH ENTER AT THE OTHER
END."  HENCE RESPONDENT ARGUES THAT "IF IMPORTATION AND EXPORTATION IN
INTERSTATE COMMERCE DO NOT SINGLY TRANSFER PURELY LOCAL ACTIVITIES INTO
THE FIELD OF CONGRESSIONAL REGULATION, IT SHOULD FOLLOW THAT THEIR
COMBINATION WOULD NOT ALTER THE LOCAL SITUATION."  ARKADELPHIA MILLING
CO. V. ST. LOUIS SOUTHWESTERN RY. CO., 249 U.S. 134, 151; OLIVER IRON
CO. V. LORD, SUPRA. 

WE DO NOT FIND IT NECESSARY TO DETERMINE WHETHER THESE FEATURES OF
DEFENDANT'S BUSINESS DISPOSE OF THE ASSERTED ANALOGY TO THE "STREAM OF
COMMERCE" CASES.  THE INSTANCES IN WHICH THAT METAPHOR HAS BEEN USED
ARE BUT PARTICULAR, AND NOT EXCLUSIVE, ILLUSTRATIONS OF THE PROTECTIVE
POWER WHICH THE GOVERNMENT INVOKES IN SUPPORT OF THE PRESENT ACT.  THE
CONGRESSIONAL AUTHORITY TO PROTECT INTERSTATE COMMERCE FROM BURDENS AND
OBSTRUCTIONS IS NOT LIMITED TO TRANSACTIONS WHICH CAN BE DEEMED TO BE
AN ESSENTIAL PART OF A "FLOW" OF INTERSTATE OR FOREIGN COMMERCE. 
BURDENS AND OBSTRUCTIONS MAY BE DUE TO INJURIOUS ACTION SPRINGING FROM
OTHER SOURCES.  THE FUNDAMENTAL PRINCIPLE IS THAT THE POWER TO REGULATE
COMMERCE IS THE POWER TO ENACT "ALL APPROPRIATE LEGISLATION" FOR "ITS
PROTECTION AND ADVANCEMENT" (THE DANIEL BALL, 10 WALL.  557, 564); TO
ADOPT MEASURES "TO PROMOTE ITS GROWTH AND INSURE ITS SAFETY" (MOBILE
COUNTY V. KIMBALL, 102 U.S. 691, 696, 697); "TO FOSTER, PROTECT,
CONTROL AND RESTRAIN."  SECOND EMPLOYERS' LIABILITY CASES, SUPRA, P.
47.  SEE TEXAS & N.O.R. CO. V. RAILWAY CLERKS, SUPRA.  THAT POWER IS
PLENARY AND MAY BE EXERTED TO PROTECT INTERSTATE COMMERCE "NO MATTER
WHAT THE SOURCE OF THE DANGERS WHICH THREATEN IT."  SECOND EMPLOYERS'
LIABILITY CASES, P. 51; SCHECHTER CORP. V. UNITED STATES, SUPRA.
ALTHOUGH ACTIVITIES MAY BE INTRASTATE IN CHARACTER WHEN SEPARATELY
CONSIDERED, IF THEY HAVE SUCH A CLOSE AND SUBSTANTIAL RELATION TO
INTERSTATE COMMERCE THAT THEIR CONTROL IS ESSENTIAL OR APPROPRIATE TO
PROTECT THAT COMMERCE FROM BURDENS AND OBSTRUCTIONS, CONGRESS CANNOT BE
DENIED THE POWER TO EXERCISE THAT CONTROL.  SCHECHTER CORP. V. UNITED
STATES, SUPRA.  UNDOUBTEDLY THE SCOPE OF THIS POWER MUST BE CONSIDERED
IN THE LIGHT OF OUR DUAL SYSTEM OF GOVERNMENT AND MAY NOT BE EXTENDED
SO AS TO EMBRACE EFFECTS UPON INTERSTATE COMMERCE SO INDIRECT AND
REMOTE THAT TO EMBRACE THEM, IN VIEW OF OUR COMPLEX SOCIETY, WOULD
EFFECTUALLY OBLITERATE THE DISTINCTION BETWEEN WHAT IS NATIONAL AND
WHAT IS LOCAL AND CREATE A COMPLETELY CENTRALIZED GOVERNMENT.  ID.  THE
QUESTION IS NECESSARILY ONE OF DEGREE.  AS THE COURT SAID IN CHICAGO
BOARD OF TRADE V. OLSEN, SUPRA, P. 37, REPEATING WHAT HAD BEEN SAID IN
STAFFORD V. WALLACE, SUPRA:  "WHATEVER AMOUNTS TO MORE OR LESS CONSTANT
PRACTICE, AND THREATENS TO OBSTRUCT OR UNDULY TO BURDEN THE FREEDOM OF
INTERSTATE COMMERCE IS WITHIN THE REGULATORY POWER OF CONGRESS UNDER
THE COMMERCE CLAUSE AND IT IS PRIMARILY FOR CONGRESS TO CONSIDER AND
DECIDE THE FACT OF THE DANGER AND MEET IT." 

THAT INTRASTATE ACTIVITIES, BY REASON OF CLOSE AND INTIMATE RELATION
TO INTERSTATE COMMERCE, MAY FALL WITHIN FEDERAL CONTROL IS DEMONSTRATED
IN THE CASE OF CARRIERS WHO ARE ENGAGED IN BOTH INTERSTATE AND
INTRASTATE TRANSPORTATION.  THERE FEDERAL CONTROL HAS BEEN FOUND
ESSENTIAL TO SECURE THE FREEDOM OF INTERSTATE TRAFFIC FROM INTERFERENCE
OR UNJUST DISCRIMINATION AND TO PROMOTE THE EFFICIENCY OF THE
INTERSTATE SERVICE.  SHREVEPORT CASE, 234 U.S. 342, 351, 352; WISCONSIN
RAILROAD COMM'N V. CHICAGO, B. & Q.R. CO., 257 U.S. 563, 588.  IT IS
MANIFEST THAT INTRASTATE RATES DEAL PRIMARILY WITH A LOCAL ACTIVITY. 
BUT IN RATE-MAKING THEY BEAR SUCH A CLOSE RELATION TO INTERSTATE RATES
THAT EFFECTIVE CONTROL OF THE ONE MUST EMBRACE SOME CONTROL OVER THE
OTHER.  ID. UNDER THE TRANSPORTATION ACT, 1920,  FN7  CONGRESS WENT SO
FAR AS TO AUTHORIZE THE INTERSTATE COMMERCE COMMISSION TO ESTABLISH A
STATE-WIDE LEVEL OF INTRASTATE RATES IN ORDER TO PREVENT AN UNJUST
DISCRIMINATION AGAINST INTERSTATE COMMERCE.  WISCONSIN RAILROAD COMM'N
V. CHICAGO, B. & Q.R. CO., SUPRA; FLORIDA V. UNITED STATES, 282 U.S.
194, 210, 211.  OTHER ILLUSTRATIONS ARE FOUND IN THE BROAD REQUIREMENTS
OF THE SAFETY APPLIANCE ACT AND THE HOURS OF SERVICE ACT.  SOUTHERN
RAILWAY CO. V. UNITED STATES, 222 U.S. 20; BALTIMORE & OHIO R. CO. V.
INTERSTATE COMMERCE COMM'N, 221 U.S. 612.  IT IS SAID THAT THIS
EXERCISE OF FEDERAL POWER HAS RELATION TO THE MAINTENANCE OF ADEQUATE
INSTRUMENTALITIES OF INTERSTATE COMMERCE.  BUT THE AGENCY IS NOT
SUPERIOR TO THE COMMERCE WHICH USES IT.  THE PROTECTIVE POWER EXTENDS
TO THE FORMER BECAUSE IT EXISTS AS TO THE LATTER. 

THE CLOSE AND INTIMATE EFFECT WHICH BRINGS THE SUBJECT WITHIN THE
REACH OF FEDERAL POWER MAY BE DUE TO ACTIVITIES IN RELATION TO
PRODUCTIVE INDUSTRY ALTHOUGH THE INDUSTRY WHEN SEPARATELY VIEWED IS
LOCAL.  THIS HAS BEEN ABUNDANTLY ILLUSTRATED IN THE APPLICATION OF THE
FEDERAL ANTI-TRUST ACT.  IN THE STANDARD OIL AND AMERICAN TOBACCO
CASES, 221 U.S. 1, 106, THAT STATUTE WAS APPLIED TO COMBINATIONS OF
EMPLOYERS ENGAGED IN PRODUCTIVE INDUSTRY.  COUNSEL FOR THE OFFENDING
CORPORATIONS STRONGLY URGED THAT THE SHERMAN ACT HAD NO APPLICATION
BECAUSE THE ACTS COMPLAINED OF WERE NOT ACTS OF INTERSTATE OR FOREIGN
COMMERCE, NOR DIRECT AND IMMEDIATE IN THEIR EFFECT ON INTERSTATE OR
FOREIGN COMMERCE, BUT PRIMARILY AFFECTED MANUFACTURING AND NOT
COMMERCE.  221 U.S. PP. 5, 125.  COUNSEL RELIED UPON THE DECISION IN
UNITED STATES V. KNIGHT CO., 156 U.S. 1.  THE COURT STATED THEIR
CONTENTION AS FOLLOWS:  "THAT THE ACT, EVEN IF THE AVERMENTS OF THE
BILL BE TRUE, CANNOT BE CONSTITUTIONALLY APPLIED, BECAUSE TO DO SO
WOULD EXTEND THE POWER OF CONGRESS TO SUBJECTS DEHORS THE REACH OF ITS
AUTHORITY TO REGULATE COMMERCE, BY ENABLING THAT BODY TO DEAL WITH MERE
QUESTIONS OF PRODUCTION OF COMMODITIES WITHIN THE STATES."  AND THE
COURT SUMMARILY DISMISSED THE CONTENTION IN THESE WORDS:  "BUT ALL THE
STRUCTURE UPON WHICH THIS ARGUMENT PROCEEDS IS BASED UPON THE DECISION
IN UNITED STATES V. E.C. KNIGHT CO., 156 U.S. 1.  THE VIEW, HOWEVER,
WHICH THE ARGUMENT TAKES OF THAT CASE AND THE ARGUMENTS BASED UPON THAT
VIEW HAVE BEEN SO REPEATEDLY PRESSED UPON THIS COURT IN CONNECTION WITH
THE INTERPRETATION AND ENFORCEMENT OF THE ANTI-TRUST ACT, AND HAVE BEEN
SO NECESSARILY AND EXPRESSLY DECIDED TO BE UNSOUND AS TO CAUSE THE
CONTENTIONS TO BE PLAINLY FORECLOSED AND TO REQUIRE NO EXPRESS NOTICE"
(CITING CASES).  221 U.S. PP. 68, 69. 

UPON THE SAME PRINCIPLE, THE ANTI-TRUST ACT HAS BEEN APPLIED TO THE
CONDUCT OF EMPLOYEES ENGAGED IN PRODUCTION.  LOEWE V. LAWLOR, 208 U.S.
274; CORONADO COAL CO. V. UNITED MINE WORKERS, SUPRA; BEDFORD CUT STONE
CO. V. STONE CUTTERS' ASSN., 274 U.S. 37.  SEE, ALSO, LOCAL 167 V.
UNITED STATES, 291 U.S. 293, 397; SCHECHTER CORP. V. UNITED STATES,
SUPRA.  THE DECISIONS DEALING WITH THE QUESTION OF THAT APPLICATION
ILLUSTRATE BOTH THE PRINCIPLE AND ITS LIMITATION.  THUS, IN THE FIRST
CORONADO CASE, THE COURT HELD THAT MINING WAS NOT INTERSTATE COMMERCE,
THAT THE POWER OF CONGRESS DID NOT EXTEND TO ITS REGULATION AS SUCH,
AND THAT IT HAD NOT BEEN SHOWN THAT THE ACTIVITIES THERE INVOLVED - A
LOCAL STRIKE - BROUGHT THEM WITHIN THE PROVISIONS OF THE ANTI-TRUST
ACT, NOTWITHSTANDING THE BROAD TERMS OF THAT STATUTE.  A SIMILAR
CONCLUSION WAS REACHED IN UNITED LEATHER WORKERS V. HERKERT & MEISEL
TRUNK CO., SUPRA, INDUSTRIAL ASSOCIATION V. UNITED STATES, SUPRA, AND
LEVERING & GARRIGUES CO. V. MORRIN, 289 U.S. 103, 107.  BUT IN THE
FIRST CORONADO CASE THE COURT ALSO SAID THAT "IF CONGRESS DEEMS CERTAIN
RECURRING PRACTICES, THOUGH NOT REALLY PART OF INTERSTATE COMMERCE,
LIKELY TO OBSTRUCT, RESTRAIN OR BURDEN IT, IT HAS THE POWER TO SUBJECT
THEM TO NATIONAL SUPERVISION AND RESTRAINT."  259 U.S. P. 408.  AND IN
THE SECOND CORONADO CASE THE COURT RULED THAT WHILE THE MERE REDUCTION
IN THE SUPPLY OF AN ARTICLE TO BE SHIPPED IN INTERSTATE COMMERCE BY THE
ILLEGAL OR TORTIOUS PREVENTION OF ITS MANUFACTURE OR PRODUCTION IS
ORDINARILY AN INDIRECT AND REMOTE OBSTRUCTION TO THAT COMMERCE,
NEVERTHELESS WHEN THE "INTENT OF THOSE UNLAWFULLY PREVENTING THE
MANUFACTURE OR PRODUCTION IS SHOWN TO BE TO RESTRAIN OR CONTROL THE
SUPPLY ENTERING AND MOVING IN INTERSTATE COMMERCE, OR THE PRICE OF IT
IN INTERSTATE MARKETS, THEIR ACTION IS A DIRECT VIOLATION OF THE ANTI
TRUST ACT."  268 U.S. P. 310.  AND THE EXISTENCE OF THAT INTENT MAY BE
A NECESSARY INFERENCE FROM PROOF OF THE DIRECT AND SUBSTANTIAL EFFECT
PRODUCED BY THE EMPLOYEES' CONDUCT.  INDUSTRIAL ASSOCIATION V. UNITED
STATES, 268 U.S. P. 81.  WHAT WAS ABSENT FROM THE EVIDENCE IN THE FIRST
CORONADO CASE APPEARED IN THE SECOND AND THE ACT WAS ACCORDINGLY
APPLIED TO THE MINING EMPLOYEES. 

IT IS THUS APPARENT THAT THE FACT THAT THE EMPLOYEES HERE CONCERNED
WERE ENGAGED IN PRODUCTION IS NOT DETERMINATIVE.  THE QUESTION REMAINS
AS TO THE EFFECT UPON INTERSTATE COMMERCE OF THE LABOR PRACTICE
INVOLVED.  IN THE SCHECHTER CASE, SUPRA, WE FOUND THAT THE EFFECT THERE
WAS SO REMOTE AS TO BE BEYOND THE FEDERAL POWER.  TO FIND "IMMEDIACY OR
DIRECTNESS" THERE WAS TO FIND IT "ALMOST EVERYWHERE," A RESULT
INCONSISTENT WITH THE MAINTENANCE OF OUR FEDERAL SYSTEM.  IN THE CARTER
CASE, SUPRA, THE COURT WAS OF THE OPINION THAT THE PROVISIONS OF THE
STATUTE RELATING TO PRODUCTION WERE INVALID UPON SEVERAL GROUNDS,  -
THAT THERE WAS IMPROPER DELEGATION OF LEGISLATIVE POWER, AND THAT THE
REQUIREMENTS NOT ONLY WENT BEYOND ANY SUSTAINABLE MEASURE OF PROTECTION
OF INTERSTATE COMMERCE BUT WERE ALSO INCONSISTENT WITH DUE PROCESS. 
THESE CASES ARE NOT CONTROLLING HERE. 

FOURTH.  EFFECTS OF THE UNFAIR LABOR PRACTICE IN RESPONDENT'S
ENTERPRISE.  - GIVING FULL WEIGHT TO RESPONDENT'S CONTENTION WITH
RESPECT TO A BREAK IN THE COMPLETE CONTINUITY OF THE "STREAM OF
COMMERCE" BY REASON OF RESPONDENT'S MANUFACTURING OPERATIONS, THE FACT
REMAINS THAT THE STOPPAGE OF THOSE OPERATIONS BY INDUSTRIAL STRIFE
WOULD HAVE A MOST SERIOUS EFFECT UPON INTERSTATE COMMERCE.  IN VIEW OF
RESPONDENT'S FAR-FLUNG ACTIVITIES, IT IS IDLE TO SAY THAT THE EFFECT
WOULD BE INDIRECT OR REMOTE.  IT IS OBVIOUS THAT IT WOULD BE IMMEDIATE
AND MIGHT BE CATASTROPHIC.  WE ARE ASKED TO SHUT OUR EYES TO THE
PLAINEST FACTS OF OUR NATIONAL LIFE AND TO DEAL WITH THE QUESTION OF
DIRECT AND INDIRECT EFFECTS IN AN INTELLECTUAL VACUUM.  BECAUSE THERE
MAY BE BUT INDIRECT AND REMOTE EFFECTS UPON INTERSTATE COMMERCE IN
CONNECTION WITH A HOST OF LOCAL ENTERPRISES THROUGHOUT THE COUNTRY, IT
DOES NOT FOLLOW THAT OTHER INDUSTRIAL ACTIVITIES DO NOT HAVE SUCH A
CLOSE AND INTIMATE RELATION TO INTERSTATE COMMERCE AS TO MAKE THE
PRESENCE OF INDUSTRIAL STRIFE A MATTER OF THE MOST URGENT NATIONAL
CONCERN.  WHEN INDUSTRIES ORGANIZE THEMSELVES ON A NATIONAL SCALE,
MAKING THEIR RELATION TO INTERSTATE COMMERCE THE DOMINANT FACTOR IN
THEIR ACTIVITIES, HOW CAN IT BE MAINTAINED THAT THEIR INDUSTRIAL LABOR
RELATIONS CONSTITUTE A FORBIDDEN FIELD INTO WHICH CONGRESS MAY NOT
ENTER WHEN IT IS NECESSARY TO PROTECT INTERSTATE COMMERCE FROM THE
PARALYZING CONSEQUENCES OF INDUSTRIAL WAR?  WE HAVE OFTEN SAID THAT
INTERSTATE COMMERCE ITSELF IS A PRACTICAL CONCEPTION.  IT IS EQUALLY
TRUE THAT INTERFERENCES WITH THAT COMMERCE MUST BE APPRAISED BY A
JUDGMENT THAT DOES NOT IGNORE ACTUAL EXPERIENCE. 

EXPERIENCE HAS ABUNDANTLY DEMONSTRATED THAT THE RECOGNITION OF THE
RIGHT OF EMPLOYEES TO SELF-ORGANIZATION AND TO HAVE REPRESENTATIVES OF
THEIR OWN CHOOSING FOR THE PURPOSE OF COLLECTIVE BARGAINING IS OFTEN AN
ESSENTIAL CONDITION OF INDUSTRIAL PEACE.  REFUSAL TO CONFER AND
NEGOTIATE HAS BEEN ONE OF THE MOST PROLIFIC CAUSES OF STRIFE.  THIS IS
SUCH AN OUTSTANDING FACT IN THE HISTORY OF LABOR DISTURBANCES THAT IT
IS A PROPER SUBJECT OF JUDICIAL NOTICE AND REQUIRES NO CITATION OF
INSTANCES.  THE OPINION IN THE CASE OF VIRGINIAN RAILWAY CO. V. SYSTEM
FEDERATION, NO. 40, SUPRA, POINTS OUT THAT, IN THE CASE OF CARRIERS,
EXPERIENCE HAS SHOWN THAT BEFORE THE AMENDMENT, OF 1934, OF THE RAILWAY
LABOR ACT "WHEN THERE WAS NO DISPUTE AS TO THE ORGANIZATIONS AUTHORIZED
TO REPRESENT THE EMPLOYEES AND WHEN THERE WAS A WILLINGNESS OF THE
EMPLOYER TO MEET SUCH REPRESENTATIVE FOR A DISCUSSION OF THEIR
GRIEVANCES, AMICABLE ADJUSTMENT OF DIFFERENCES HAD GENERALLY FOLLOWED
AND STRIKES HAD BEEN AVOIDED."  THAT, ON THE OTHER HAND, "A PROLIFIC
SOURCE OF DISPUTE HAD BEEN THE MAINTENANCE BY THE RAILROAD OF COMPANY
UNIONS AND THE DENIAL BY RAILWAY MANAGEMENT OF THE AUTHORITY OF
REPRESENTATIVES CHOSEN BY THEIR EMPLOYEES."  THE OPINION IN THAT CASE
ALSO POINTS TO THE LARGE MEASURE OF SUCCESS OF THE LABOR POLICY
EMBODIED IN THE RAILWAY LABOR ACT.  BUT WITH RESPECT TO THE
APPROPRIATENESS OF THE RECOGNITION OF SELF-ORGANIZATION AND
REPRESENTATION IN THE PROMOTION OF PEACE, THE QUESTION IS NOT
ESSENTIALLY DIFFERENT IN THE CASE OF EMPLOYEES IN INDUSTRIES OF SUCH A
CHARACTER THAT INTERSTATE COMMERCE IS PUT IN JEOPARDY FROM THE CASE OF
EMPLOYEES OF TRANSPORTATION COMPANIES.  AND OF WHAT AVAIL IS IT TO
PROTECT THE FACILITY OF TRANSPORTATION, IF INTERSTATE COMMERCE IS
THROTTLED WITH RESPECT TO THE COMMODITIES TO BE TRANSPORTED. 

THESE QUESTIONS HAVE FREQUENTLY ENGAGED THE ATTENTION OF CONGRESS AND
HAVE BEEN THE SUBJECT OF MANY INQUIRIES.  FN8  THE STEEL INDUSTRY IS
ONE OF THE GREAT BASIC INDUSTRIES OF THE UNITED STATES, WITH REMIFYING
ACTIVITIES AFFECTING INTERSTATE COMMERCE AT EVERY POINT.  THE
GOVERNMENT APTLY REFERS TO THE STEEL STRIKE OF 1919-1920 WITH ITS FAR
REACHING CONSEQUENCES.  FN9  THE FACT THAT THERE APPEARS TO HAVE BEEN
NO MAJOR DISTURBANCE IN THAT INDUSTRY IN THE MORE RECENT PERIOD DID NOT
DISPOSE OF THE POSSIBILITIES OF FUTURE AND LIKE DANGERS TO INTERSTATE
COMMERCE WHICH CONGRESS WAS ENTITLED TO FORESEE AND TO EXERCISE ITS
PROTECTIVE POWER TO FORESTALL.  IT IS NOT NECESSARY AGAIN TO DETAIL THE
FACTS AS TO RESPONDENT'S ENTERPRISE.  INSTEAD OF BEING BEYOND THE PALE,
WE THINK THAT IT PRESENTS IN A MOST STRIKING WAY THE CLOSE AND INTIMATE
RELATION WHICH A MANUFACTURING INDUSTRY MAY HAVE TO INTERSTATE COMMERCE
AND WE HAVE NO DOUBT THAT CONGRESS HAD CONSTITUTIONAL AUTHORITY TO
SAFEGUARD THE RIGHT OF RESPONDENT'S EMPLOYEES TO SELF-ORGANIZATION AND
FREEDOM IN THE CHOICE OF REPRESENTATIVES FOR COLLECTIVE BARGAINING. 

FIFTH.  THE MEANS WHICH THE ACT EMPLOYS.  - QUESTIONS UNDER THE DUE
PROCESS CLAUSE AND OTHER CONSTITUTIONAL RESTRICTIONS.  - RESPONDENT
ASSERTS ITS RIGHT TO CONDUCT ITS BUSINESS IN AN ORDERLY MANNER WITHOUT
BEING SUBJECTED TO ARBITRARY RESTRAINTS.  WHAT WE HAVE SAID POINTS TO
THE FALLACY IN THE ARGUMENT.  EMPLOYEES HAVE THEIR CORRELATIVE RIGHT TO
ORGANIZE FOR THE PURPOSE OF SECURING THE REDRESS OF GRIEVANCES AND TO
PROMOTE AGREEMENTS WITH EMPLOYERS RELATING TO RATES OF PAY AND
CONDITIONS OF WORK.  TEXAS & N.O.R. CO. V. RAILWAY CLERKS, SUPRA;
VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION, NO. 40.  RESTRAINT FOR THE
PURPOSE OF PREVENTING AN UNJUST INTERFERENCE WITH THAT RIGHT CANNOT BE
CONSIDERED ARBITRARY OR CAPRICIOUS.  THE PROVISION OF SEC. 9(A)  FN10
THAT REPRESENTATIVES, FOR THE PURPOSE OF COLLECTIVE BARGAINING, OF THE
MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE UNIT SHALL BE THE EXCLUSIVE
REPRESENTATIVES OF ALL THE EMPLOYEES IN THAT UNIT, IMPOSES UPON THE
RESPONDENT ONLY THE DUTY OF CONFERRING AND NEGOTIATING WITH THE
AUTHORIZED REPRESENTATIVES OF ITS EMPLOYEES FOR THE PURPOSE OF SETTLING
A LABOR DISPUTE.  THIS PROVISION HAS ITS ANALOGUE IN SEC. 2, NINTH, OF
THE RAILWAY LABOR ACT WHICH WAS UNDER CONSIDERATION IN VIRGINIAN
RAILWAY CO. V. SYSTEM FEDERATION, NO. 40, SUPRA.  THE DECREE WHICH WE
AFFIRMED IN THAT CASE REQUIRED THE RAILWAY COMPANY TO TREAT WITH THE
REPRESENTATIVE CHOSEN BY THE EMPLOYEES AND ALSO TO REFRAIN FROM
ENTERING INTO COLLECTIVE LABOR AGREEMENTS WITH ANYONE OTHER THAN THEIR
TRUE REPRESENTATIVE AS ASCERTAINED IN ACCORDANCE WITH THE PROVISIONS OF
THE ACT.  WE SAID THAT THE OBLIGATION TO TREAT WITH THE TRUE
REPRESENTATIVE WAS EXCLUSIVE AND HENCE IMPOSED THE NEGATIVE DUTY TO
TREAT WITH NO OTHER.  WE ALSO POINTED OUT THAT, AS CONCEDED BY THE
GOVERNMENT,  FN11  THE INJUNCTION AGAINST THE COMPANY'S ENTERING INTO
ANY CONTRACT CONCERNING RULES, RATES OF PAY AND WORKING CONDITIONS
EXCEPT WITH A CHOSEN REPRESENTATIVE WAS "DESIGNED ONLY TO PREVENT
COLLECTIVE BARGAINING WITH ANYONE PURPORTING TO REPRESENT EMPLOYEES"
OTHER THAN THE REPRESENTATIVE THEY HAD SELECTED.  IT WAS TAKEN "TO
PROHIBIT THE NEGOTIATION OF LABOR CONTRACTS GENERALLY APPLICABLE TO
EMPLOYEES" IN THE DESCRIBED UNIT WITH ANY OTHER REPRESENTATIVE THAN THE
ONE SO CHOSEN, "BUT NOT AS PRECLUDING SUCH INDIVIDUAL CONTRACTS" AS THE
COMPANY MIGHT "ELECT TO MAKE DIRECTLY WITH INDIVIDUAL EMPLOYEES."  WE
THINK THIS CONSTRUCTION ALSO APPLIES TO SEC. 9(A) OF THE NATIONAL LABOR
RELATIONS ACT. 

THE ACT DOES NOT COMPEL AGREEMENTS BETWEEN EMPLOYERS AND EMPLOYEES. 
IT DOES NOT COMPEL ANY AGREEMENT WHATEVER.  IT DOES NOT PREVENT THE
EMPLOYER "FROM REFUSING TO MAKE A COLLECTIVE CONTRACT AND HIRING
INDIVIDUALS ON WHATEVER TERMS" THE EMPLOYER "MAY BY UNILATERAL ACTION
DETERMINE."  FN12 THE ACT EXPRESSLY PROVIDES IN SEC. 9(A) THAT ANY
INDIVIDUAL EMPLOYEE OR A GROUP OF EMPLOYEES SHALL HAVE THE RIGHT AT ANY
TIME TO PRESENT GRIEVANCES TO THEIR EMPLOYER.  THE THEORY OF THE ACT IS
THAT FREE OPPORTUNITY FOR NEGOTIATION WITH ACCREDITED REPRESENTATIVES
OF EMPLOYEES IS LIKELY TO PROMOTE INDUSTRIAL PEACE AND MAY BRING ABOUT
THE ADJUSTMENTS AND AGREEMENTS WHICH THE ACT IN ITSELF DOES NOT ATTEMPT
TO COMPEL.  AS WE SAID IN TEXAS & N.O.R. CO. V. RAILWAY CLERKS, SUPRA,
AND REPEATED IN VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION, NO. 40,
SUPRA, THE CASES OF ADAIR V. UNITED STATES, 208 U.S. 161, AND COPPAGE
V. KANSAS, 236 U.S. 1, ARE INAPPLICABLE TO LEGISLATION OF THIS
CHARACTER.  THE ACT DOES NOT INTERFERE WITH THE NORMAL EXERCISE OF THE
RIGHT OF THE EMPLOYER TO SELECT ITS EMPLOYEES OR TO DISCHARGE THEM. 
THE EMPLOYER MAY NOT, UNDER COVER OF THAT RIGHT, INTIMIDATE OR COERCE
ITS EMPLOYEES WITH RESPECT TO THEIR SELF-ORGANIZATION AND
REPRESENTATION, AND, ON THE OTHER HAND, THE BOARD IS NOT ENTITLED TO
MAKE ITS AUTHORITY A PRETEXT FOR INTERFERENCE WITH THE RIGHT OF
DISCHARGE WHEN THAT RIGHT IS EXERCISED FOR OTHER REASONS THAN SUCH
INTIMIDATION AND COERCION.  THE TRUE PURPOSE IS THE SUBJECT OF
INVESTIGATION WITH FULL OPPORTUNITY TO SHOW THE FACTS.  IT WOULD SEEM
THAT WHEN EMPLOYERS FREELY RECOGNIZE THE RIGHT OF THEIR EMPLOYEES TO
THEIR OWN ORGANIZATIONS AND THEIR UNRESTRICTED RIGHT OF REPRESENTATION
THERE WILL BE MUCH LESS OCCASION FOR CONTROVERSY IN RESPECT TO THE FREE
AND APPROPRIATE EXERCISE OF THE RIGHT OF SELECTION AND DISCHARGE. 

THE ACT HAS BEEN CRITICISED AS ONE-SIDED IN ITS APPLICATION; THAT IT
SUBJECTS THE EMPLOYER TO SUPERVISION AND RESTRAINT AND LEAVES UNTOUCHED
THE ABUSES FOR WHICH EMPLOYEES MAY BE RESPONSIBLE; THAT IT FAILS TO
PROVIDE A MORE COMPREHENSIVE PLAN,  - WITH BETTER ASSURANCES OF
FAIRNESS TO BOTH SIDES AND WITH INCREASED CHANCES OF SUCCESS IN
BRINGING ABOUT, IF NOT COMPELLING, EQUITABLE SOLUTIONS OF INDUSTRIAL
DISPUTES AFFECTING INTERSTATE COMMERCE.  BUT WE ARE DEALING WITH THE
POWER OF CONGRESS, NOT WITH A PARTICULAR POLICY OR WITH THE EXTENT TO
WHICH POLICY SHOULD GO.  WE HAVE FREQUENTLY SAID THAT THE LEGISLATIVE
AUTHORITY, EXERTED WITHIN ITS PROPER FIELD, NEED NOT EMBRACE ALL THE
EVILS WITHIN ITS REACH.  THE CONSTITUTION DOES NOT FORBID "CAUTIOUS
ADVANCE, STEP BY STEP," IN DEALING WITH THE EVILS WHICH ARE EXHIBITED
IN ACTIVITIES WITHIN THE RANGE OF LEGISLATIVE POWER.  CARROLL V.
GREENWICH INSURANCE CO., 199 U.S. 401, 411; KEOKEE COKE CO. V. TAYLOR,
234 U.S. 224, 227; MILLER V. WILSON, 236 U.S. 373, 384; SPROLES V.
BINFORD, 286 U.S. 374, 396.  THE QUESTION IN SUCH CASES IS WHETHER THE
LEGISLATURE, IN WHAT IT DOES PRESCRIBE, HAS GONE BEYOND CONSTITUTIONAL
LIMITS. 

THE PROCEDURAL PROVISIONS OF THE ACT ARE ASSAILED.  BUT THESE
PROVISIONS, AS WE CONSTRUE THEM, DO NOT OFFEND AGAINST THE
CONSTITUTIONAL REQUIREMENTS GOVERNING THE CREATION AND ACTION OF
ADMINISTRATIVE BODIES.  SEE INTERSTATE COMMERCE COMM'N V. LOUISVILLE &
NASHVILLE R. CO., 227 U.S. 88, 91.  THE ACT ESTABLISHES STANDARDS TO
WHICH THE BOARD MUST CONFORM.  THERE MUST BE COMPLAINT, NOTICE AND
HEARING.  THE BOARD MUST RECEIVE EVIDENCE AND MAKE FINDINGS.  THE
FINDINGS AS TO THE FACTS ARE TO BE CONCLUSIVE, BUT ONLY IF SUPPORTED BY
EVIDENCE.  THE ORDER OF THE BOARD IS SUBJECT TO REVIEW BY THE
DESIGNATED COURT, AND ONLY WHEN SUSTAINED BY THE COURT MAY THE ORDER BE
ENFORCED.  UPON THAT REVIEW ALL QUESTIONS OF THE JURISDICTION OF THE
BOARD AND THE REGULARITY OF ITS PROCEEDINGS, ALL QUESTIONS OF
CONSTITUTIONAL RIGHT OR STATUTORY AUTHORITY, ARE OPEN TO EXAMINATION BY
THE COURT.  WE CONSTRUE THE PROCEDURAL PROVISIONS AS AFFORDING ADEQUATE
OPPORTUNITY TO SECURE JUDICIAL PROTECTION AGAINST ARBITRARY ACTION IN
ACCORDANCE WITH THE WELL-SETTLED RULES APPLICABLE TO ADMINISTRATIVE
AGENCIES SET UP BY CONGRESS TO AID IN THE ENFORCEMENT OF VALID
LEGISLATION.  IT IS NOT NECESSARY TO REPEAT THESE RULES WHICH HAVE
FREQUENTLY BEEN DECLARED.  NONE OF THEM APPEARS TO HAVE BEEN
TRANSGRESSED IN THE INSTANT CASE.  RESPONDENT WAS NOTIFIED AND HEARD. 
IT HAD OPPORTUNITY TO MEET THE CHARGE OF UNFAIR LABOR PRACTICES UPON
THE MERITS, AND BY WITHDRAWING FROM THE HEARING IT DECLINED TO AVAIL
ITSELF OF THAT OPPORTUNITY.  THE FACTS FOUND BY THE BOARD SUPPORT ITS
ORDER AND THE EVIDENCE SUPPORTS THE FINDINGS.  RESPONDENT HAS NO JUST
GROUND FOR COMPLAINT ON THIS SCORE. 

THE ORDER OF THE BOARD REQUIRED THE REINSTATEMENT OF THE EMPLOYEES
WHO WERE FOUND TO HAVE BEEN DISCHARGED BECAUSE OF THEIR "UNION
ACTIVITY" AND FOR THE PURPOSE OF "DISCOURAGING MEMBERSHIP IN THE
UNION."  THAT REQUIREMENT WAS AUTHORIZED BY THE ACT.  SEC. 10(C).  IN
TEXAS & N.O.R. CO. V. RAILWAY CLERKS, SUPRA, A SIMILAR ORDER FOR
RESTORATION TO SERVICE WAS MADE BY THE COURT IN CONTEMPT PROCEEDINGS
FOR THE VIOLATION OF AN INJUNCTION ISSUED BY THE COURT TO RESTRAIN AN
INTERFERENCE WITH THE RIGHT OF EMPLOYEES AS GUARANTEED BY THE RAILWAY
LABOR ACT OF 1926.  THE REQUIREMENT OF RESTORATION TO SERVICE, OF
EMPLOYEES DISCHARGED IN VIOLATION OF THE PROVISIONS OF THAT ACT, WAS
THUS A SANCTION IMPOSED IN THE ENFORCEMENT OF A JUDICIAL DECREE.  WE DO
NOT DOUBT THAT CONGRESS COULD IMPOSE A LIKE SANCTION FOR THE
ENFORCEMENT OF ITS VALID REGULATION.  THE FACT THAT IN THE ONE CASE IT
WAS A JUDICIAL SANCTION, AND IN THE OTHER A LEGISLATIVE ONE, IS NOT AN
ESSENTIAL DIFFERENCE IN DETERMINING ITS PROPRIETY. 

RESPONDENT COMPLAINS THAT THE BOARD NOT ONLY ORDERED REINSTATEMENT
BUT DIRECTED THE PAYMENT OF WAGES FOR THE TIME LOST BY THE DISCHARGE,
LESS AMOUNTS EARNED BY THE EMPLOYEE DURING THAT PERIOD.  THIS PART OF
THE ORDER WAS ALSO AUTHORIZED BY THE ACT.  SEC. 10(C).  IT IS ARGUED
THAT THE REQUIREMENT IS EQUIVALENT TO A MONEY JUDGMENT AND HENCE
CONTRAVENES THE SEVENTH AMENDMENT WITH RESPECT TO TRIAL BY JURY.  THE
SEVENTH AMENDMENT PROVIDES THAT "IN SUITS AT COMMON LAW, WHERE THE
VALUE IN CONTROVERSY SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY
JURY SHALL BE PRESERVED."  THE AMENDMENT THUS PRESERVES THE RIGHT WHICH
EXISTED UNDER THE COMMON LAW WHEN THE AMENDMENT WAS ADOPTED.  SHIELDS
V. THOMAS, 18 HOW.  253, 262; IN RE WOOD, 210 U.S. 246, 258; DIMICK V.
SCHIEDT, 293 U.S. 474, 476; BALTIMORE & CAROLINA LINE V. REDMAN, 295
U.S. 654, 657.  THUS IT HAS NO APPLICATION TO CASES WHERE RECOVERY OF
MONEY DAMAGES IS AN INCIDENT TO EQUITABLE RELIEF EVEN THOUGH DAMAGES
MIGHT HAVE BEEN RECOVERED IN AN ACTION AT LAW.  CLARK V. WOOSTER, 119
U.S. 322, 325; PEASE V. RATHBUN-JONES ENGINEERING CO., 243 U.S. 273,
279.  IT DOES NOT APPLY WHERE THE PROCEEDING IS NOT IN THE NATURE OF A
SUIT AT COMMON LAW.  GUTHRIE NATIONAL BANK V. GUTHRIE, 173 U.S. 528,
537. 

THE INSTANT CASE IS NOT A SUIT AT COMMON LAW OR IN THE NATURE OF SUCH
A SUIT.  THE PROCEEDING IS ONE UNKNOWN TO THE COMMON LAW.  IT IS A
STATUTORY PROCEEDING.  REINSTATEMENT OF THE EMPLOYEE AND PAYMENT FOR
TIME LOST ARE REQUIREMENTS IMPOSED FOR VIOLATION OF THE STATUTE AND ARE
REMEDIES APPROPRIATE TO ITS ENFORCEMENT.  THE CONTENTION UNDER THE
SEVENTH AMENDMENT IS WITHOUT MERIT. 

OUR CONCLUSION IS THAT THE ORDER OF THE BOARD WAS WITHIN ITS
COMPETENCY AND THAT THE ACT IS VALID AS HERE APPLIED.  THE JUDGMENT OF
THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE CAUSE IS REMANDED FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  ACT OF JULY 5, 1935, 49 STAT. 449, 29 U.S.C. 151. 

FN2  THIS SECTION IS AS FOLLOWS: 

"SECTION 1.  THE DENIAL BY EMPLOYERS OF THE RIGHT OF EMPLOYEES TO
ORGANIZE AND THE REFUSAL BY EMPLOYERS TO ACCEPT THE PROCEDURE OF
COLLECTIVE BARGAINING LEAD TO STRIKES AND OTHER FORMS OF INDUSTRIAL
STRIFE OR UNREST, WHICH HAVE THE INTENT OR THE NECESSARY EFFECT OF
BURDENING OR OBSTRUCTING COMMERCE BY (A) IMPAIRING THE EFFICIENCY,
SAFETY, OR OPERATION OF THE INSTRUMENTALITIES OF COMMERCE; (B)
OCCURRING IN THE CURRENT OF COMMERCE; (C) MATERIALLY AFFECTING,
RESTRAINING, OR CONTROLLING THE FLOW OF RAW MATERIALS OR MANUFACTURED
OR PROCESSED GOODS FROM OR INTO THE CHANNELS OF COMMERCE, OR THE PRICES
OF SUCH MATERIALS OR GOODS IN COMMERCE; OR (D) CAUSING DIMINUTION OF
EMPLOYMENT AND WAGES IN SUCH VOLUME AS SUBSTANTIALLY TO IMPAIR OR
DISRUPT THE MARKET FOR GOODS FLOWING FROM OR INTO THE CHANNELS OF
COMMERCE. 

"THE INEQUALITY OF BARGAINING POWER BETWEEN EMPLOYEES WHO DO NOT
POSSESS FULL FREEDOM OF ASSOCIATION OR ACTUAL LIBERTY OF CONTRACT, AND
EMPLOYERS WHO ARE ORGANIZED IN THE CORPORATE OR OTHER FORMS OF
OWNERSHIP ASSOCIATION SUBSTANTIALLY BURDENS AND AFFECTS THE FLOW OF
COMMERCE, AND TENDS TO AGGRAVATE RECURRENT BUSINESS DEPRESSIONS, BY
DEPRESSING WAGE RATES AND THE PURCHASING POWER OF WAGE EARNERS IN
INDUSTRY AND BY PREVENTING THE STABILIZATION OF COMPETITIVE WAGE RATES
AND WORKING CONDITIONS WITHIN AND BETWEEN INDUSTRIES. 

"EXPERIENCE HAS PROVED THAT PROTECTION BY LAW OF THE RIGHT OF
EMPLOYEES TO ORGANIZE AND BARGAIN COLLECTIVELY SAFEGUARDS COMMERCE FROM
INJURY, IMPAIRMENT, OR INTERRUPTION, AND PROMOTES THE FLOW OF COMMERCE
BY REMOVING CERTAIN RECOGNIZED SOURCES OF INDUSTRIAL STRIFE AND UNREST,
BY ENCOURAGING PRACTICES FUNDAMENTAL TO THE FRIENDLY ADJUSTMENT OF
INDUSTRIAL DISPUTES ARISING OUT OF DIFFERENCES AS TO WAGES, HOURS, OR
OTHER WORKING CONDITIONS, AND BY RESTORING EQUALITY OF BARGAINING POWER
BETWEEN EMPLOYERS AND EMPLOYEES.    "IT IS HEREBY DECLARED TO BE THE
POLICY OF THE UNITED STATES TO ELIMINATE THE CAUSES OF CERTAIN
SUBSTANTIAL OBSTRUCTIONS TO THE FREE FLOW OF COMMERCE AND TO MITIGATE
AND ELIMINATE THESE OBSTRUCTIONS WHEN THEY HAVE OCCURRED BY ENCOURAGING
THE PRACTICE AND PROCEDURE OF COLLECTIVE BARGAINING AND BY PROTECTING
THE EXERCISE BY WORKERS OF FULL FREEDOM OF ASSOCIATION, SELF
ORGANIZATION, AND DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING,
FOR THE PURPOSE OF NEGOTIATING THE TERMS AND CONDITIONS OF THEIR
EMPLOYMENT OR OTHER MUTUAL AID OR PROTECTION." 

FN3  SEE NOTE 2, SUPRA, P. 23.    FN4  WHAT IS QUOTED ABOVE IS
FOLLOWED BY THIS PROVISO - NOT HERE INVOLVED - "PROVIDED, THAT NOTHING
IN THIS ACT, OR IN THE NATIONAL INDUSTRIAL RECOVERY ACT (U.S.C., SUPP.
VII, TITLE 15, SECS. 701-712), AS AMENDED FROM TIME TO TIME, OR IN ANY
CODE OR AGREEMENT APPROVED OR PRESCRIBED THEREUNDER, OR IN ANY OTHER
STATUTE OF THE UNITED STATES, SHALL PRECLUDE AN EMPLOYER FROM MAKING AN
AGREEMENT WITH A LABOR ORGANIZATION (NOT ESTABLISHED, MAINTAINED, OR
ASSISTED BY ANY ACTION DEFINED IN THIS ACT AS AN UNFAIR LABOR PRACTICE)
TO REQUIRE AS A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN, IF SUCH
LABOR ORGANIZATION IS THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED
IN SECTION 9(A), IN THE APPROPRIATE COLLECTIVE BARGAINING UNIT COVERED
BY SUCH AGREEMENT WHEN MADE." 

FN5  42 STAT. 159. 

FN6  42 STAT. 998. 

FN7  SECS. 416, 422, 41 STAT. 484, 488; INTERSTATE COMMERCE ACT, SEC.
13(4). 

FN8  SEE, FOR EXAMPLE, FINAL REPORT OF THE INDUSTRIAL COMMISSION
(1902), VOL. 19, P. 844; REPORT OF THE ANTHRACITE COAL STRIKE
COMMISSION (1902), SEN. DOC. NO. 6, 58TH CONG., SPEC. SESS.; FINAL
REPORT OF COMMISSION ON INDUSTRIAL RELATIONS (1916), SEN. DOC. NO. 415,
64TH CONG., 1ST SESS., VOL. I; NATIONAL WAR LABOR BOARD, PRINCIPLES AND
RULES OF PROCEDURE (1919), P. 4; BUREAU OF LABOR STATISTICS, BULLETIN
NO. 287(1921), PP. 52-64; HISTORY OF THE SHIPBUILDING LABOR ADJUSTMENT
BOARD, U.S. BUREAU OF LABOR STATISTICS, BULLETIN NO. 283. 

FN9  SEE INVESTIGATING STRIKE IN STEEL INDUSTRIES, SEN. REP. NO. 289,
66TH CONG., 1ST SESS. 

FN10  THE PROVISION IS AS FOLLOWS:  "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:
PROVIDED, THAT ANY INDIVIDUAL EMPLOYEE OR A GROUP OF EMPLOYEES SHALL
HAVE THE RIGHT AT ANY TIME TO PRESENT GRIEVANCES TO THEIR EMPLOYER." 

FN11  SEE VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION, NO. 40, 300
U.S. 515. 

FN12  SEE NOTE 11. 
..END :














NATIONAL LABOR RELATIONS BOARD V. FRUEHAUF CO., 301 U.S. 49 


NOS. 420 AND 421.  ARGUED FEBRUARY 11, 1937.  - DECIDED APRIL 12, 1937. 
- 85 F.(2D) 391, REVERSED. 


THE NATIONAL LABOR RELATIONS ACT, AND ORDERS MADE UNDER IT BY THE
NATIONAL LABOR RELATIONS BOARD, SUSTAINED UPON THE AUTHORITY OF
NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., ANTE,
P. 1, AS APPLIED TO A MANUFACTURER OF COMMERCIAL "TRAILERS," (VEHICLES
DESIGNED FOR THE TRANSPORTATION OF MERCHANDISE), HAVING ITS FACTORY IN
MICHIGAN, BUT WHICH OBTAINED FROM OUTSIDE OF MICHIGAN MORE THAN 50% IN
VALUE OF THE MATERIALS AND PARTS USED IN THE PLANT, AND SHIPPED TO
STATES OTHER THAN MICHIGAN AND TO FOREIGN COUNTRIES MORE THAN 80% OF
ITS FINISHED PRODUCTS.  P. 53. 

NATIONAL LABOR RELATIONS BOARD V. FRUEHAUF TRAILER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 299 U.S. 534, TO REVIEW TWO DECREES OF THE CIRCUIT COURT
OF APPEALS, ONE DISMISSING A PETITION OF THE NATIONAL LABOR RELATIONS
BOARD FOR THE ENFORCEMENT OF AN ORDER MADE BY IT UNDER THE NATIONAL
LABOR RELATIONS ACT, THE OTHER SETTING THE ORDER ASIDE AT THE PETITION
OF THE TRAILER COMPANY. 

RESPONDENT'S ENTERPRISE IS THE FOCAL POINT FOR A STREAM OR FLOW OF
INTERSTATE COMMERCE.  OVER 50% BY VALUE OF THE RAW, UNFINISHED AND
OTHER MATERIALS WHICH ARE USED BY THE RESPONDENT IN THE CONSTRUCTION OF
TRAILERS ARE SHIPPED TO IT FROM OTHER STATES. 

MORE THAN 80% OF RESPONDENT'S SALES ARE TO CUSTOMERS OUTSIDE OF
MICHIGAN.  EFFICIENCY IN RESPONDENT'S ENTERPRISE REQUIRES THE
MAINTENANCE OF A STEADY FLOW OF MATERIALS INTO AND THROUGH ITS PLANT,
AND A STEADY STREAM OF TRAILERS OUT TO ITS PURCHASERS. 

THUS WE HAVE A LARGE AND CONSTANT MOVEMENT OF GOODS INTO THE DETROIT
PLANT; THE BRIEFEST POSSIBLE PAUSE THERE, IN PART FOR MANUFACTURE, AND
IN PART MERELY FOR THE ASSEMBLY OF COMPLETED PARTS, AND IMMEDIATE
SHIPMENT TO ALL PARTS OF THE UNITED STATES.  WE SUBMIT, THEREFORE, THAT
INDUSTRIAL STRIFE IN RESPONDENT'S DETROIT PLANT WOULD HAVE THE
NECESSARY EFFECT OF BURDENING AND OBSTRUCTING INTERSTATE COMMERCE. 

IT IS APPARENT THAT INDUSTRIAL STRIFE IN RESPONDENT'S PLANT, THE
LARGEST OF ITS KIND IN THE UNITED STATES, WOULD IMMEDIATELY CURTAIL THE
MOVEMENT FROM AND INTO THE CHANNELS OF COMMERCE, NOT ONLY OF A
SUBSTANTIAL VOLUME OF GOODS, BUT ALSO OF A SUBSTANTIAL PART OF THE
INTERSTATE COMMERCE IN THE TRAILER INDUSTRY AS A WHOLE.  CONSEQUENTLY,
WE SUBMIT THAT THERE IS A REASONABLE LIKELIHOOD THAT INDUSTRIAL STRIFE
IN RESPONDENT'S ENTERPRISE WOULD, IF IT OCCURRED, HAVE THE NECESSARY
EFFECT OF SUBSTANTIALLY BURDENING INTERSTATE COMMERCE. 

IF, AS WE CONTEND, THE CONTROL POWER OF CONGRESS EXTENDS TO RECURRENT
INDUSTRIAL STRIFE IN THESE INTERSTATE ENTERPRISES, THERE CAN BE NO
DOUBT THAT THE ORDER OF THE BOARD IN THE PRESENT CASE WAS WITHIN ITS
JURISDICTION. 

THEY MADE THE FOLLOWING POINTS: 

I. THE NATIONAL LABOR RELATIONS ACT IS NOT A REGULATION OF INTERSTATE
COMMERCE BUT OF (A) INDUSTRY IN GENERAL, AND (B) LABOR RELATIONSHIPS
GENERALLY (BY IMPOSING "COLLECTIVE BARGAINING"), AND IS IN EXCESS OF
THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE AND VIOLATIVE OF THE
TENTH AMENDMENT, AND HENCE IS VOID IN ITS ENTIRETY. 

II.  IN ITS MANUFACTURING OPERATIONS RESPONDENT AND ITS PRODUCTION
EMPLOYEES ARE NOT (A) IN COMMERCE, (B) IN THE "STREAM," "CURRENT," OR
"FLOW" OF COMMERCE; AND THEY (C) DO NOT "AFFECT COMMERCE," AND HENCE
ARE NOT SUBJECT TO FEDERAL CONTROL. 

THE ORDERS OF THE BOARD HERE BEFORE THE COURT EXCEED ANY POWER WHICH
CONGRESS DID OR COULD CONFER UPON SAID BOARD AND CONTRAVENE THE TENTH
AMENDMENT. 

THE FINDINGS OF THE BOARD IN RELATION TO THE RESPONDENT AND ITS
DISCHARGED EMPLOYEES (WHICH ARE AT ALL OF MATERIAL CONSEQUENCE) ARE
ARBITRARY AND CAPRICIOUS AND WITHOUT SUBSTANTIAL BASIS IN THE
EVIDENCE. 

III.  THE ACT IS REPUGNANT TO AND IN VIOLATION OF THE FIFTH AMENDMENT
BOTH IN RESPECT OF PROCEDURAL RIGHTS AND OF SUBSTANTIVE RIGHTS. 

IV.  THE ACT DENIES THE RIGHT OF TRIAL BY JURY IN VIOLATION OF THE
SEVENTH AMENDMENT. 

V. THE ACT VIOLATES THE FIRST AMENDMENT, WHICH GUARANTEES TO CITIZENS
FREEDOM OF SPEECH. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

IN OCTOBER, 1935, CHARGES AGAINST THE RESPONDENT, FRUEHAUF TRAILER
COMPANY, WERE FILED WITH THE NATIONAL LABOR RELATIONS BOARD.  THE BOARD
ISSUED ITS COMPLAINTS (IN TWO CASES) ALLEGING THAT THE COMPANY WAS
ENGAGED IN UNFAIR LABOR PRACTICES AS DESCRIBED IN SEC. 8, SUBDIVISIONS
(1) AND (3) OF THE NATIONAL LABOR RELATIONS ACT.  49 STAT. 449; 29
U.S.C. 151 ET SEQ. THE PRACTICES WERE SAID TO CONSIST IN THE DISCHARGE
OF, AND THREATS TO DISCHARGE, EMPLOYEES BECAUSE OF THEIR AFFILIATION
WITH, AND ACTIVITY IN, THE LABOR ORGANIZATION KNOWN AS UNITED
AUTOMOBILE WORKERS FEDERAL LABOR UNION NO. 19375. 

NOTICE OF HEARING WAS GIVEN AND THE COMPLAINTS WERE CONSOLIDATED. 
RESPONDENT APPEARED SPECIALLY AND FILED MOTIONS TO DISMISS THE
COMPLAINTS UPON THE GROUND THAT THE BOARD WAS WITHOUT JURISDICTION AND
THAT THE ACT AS APPLIED TO RESPONDENT VIOLATED ARTICLE I, SEC. 1, AND
THE FIRST, FIFTH, SEVENTH AND TENTH AMENDMENTS OF THE CONSTITUTION OF
THE UNITED STATES.  ANSWERS WERE ALSO FILED, DENYING THE CHARGES AND
RESERVING THE SAME JURISDICTIONAL AND CONSTITUTIONAL OBJECTIONS. 
HEARING WAS HAD.  THE BOARD RECEIVED EVIDENCE UPON THE JURISDICTIONAL
ISSUE AND, REAFFIRMING AN EARLIER RULING, DENIED THE MOTIONS TO
DISMISS.  HEARING UPON THE MERITS PROCEEDED, AND IN DECEMBER, 1935, THE
BOARD MADE ITS FINDINGS AND ENTERED ITS ORDER. 

THE ORDER REQUIRED THE RESPONDENT TO CEASE AND DESIST FROM
DISCHARGING, OR THREATENING TO DISCHARGE, ANY OF ITS EMPLOYEES BECAUSE
OF THEIR JOINING THE UNION; FROM EMPLOYING DETECTIVES FOR THE PURPOSE
OF ESPIONAGE WITHIN THE UNION; AND FROM INTERFERING IN ANY OTHER MANNER
WITH OR COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO SELF
ORGANIZATION FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL
AID OR PROTECTION AS GUARANTEED IN SEC. 7 OF THE ACT.  THE ORDER ALSO
REQUIRED THE RESPONDENT TO CEASE AND DESIST FROM DISCOURAGING
MEMBERSHIP IN THE UNION OR, IN ANY OTHER LABOR ORGANIZATION OF ITS
EMPLOYEES, BY DISCRIMINATION IN REGARD TO HIRE OR TENURE OF
EMPLOYMENT.  RESPONDENT WAS DIRECTED TO OFFER REINSTATEMENT TO THE
EMPLOYEES WHO HAD BEEN DISCHARGED, TO MAKE GOOD THEIR LOSSES IN PAY,
AND TO POST FOR THIRTY DAYS NOTICES THAT IT HAD COMPLIED WITH THE ORDER
IN CEASING THE INTERFERENCES SET FORTH. 

THE CIRCUIT COURT OF APPEALS DISMISSED THE PETITION OF THE BOARD TO
ENFORCE ITS ORDER AND SET THE ORDER ASIDE.  85 F.(2D) 391.  THIS COURT
GRANTED CERTIORARI. 

WITH RESPECT TO THE NATURE OF RESPONDENT'S BUSINESS THE BOARD MADE
THE FOLLOWING FINDINGS: RESPONDENT IS A CORPORATION ORGANIZED UNDER THE
LAWS OF MICHIGAN AND IS ENGAGED IN THE MANUFACTURE, ASSEMBLY, SALE AND
DISTRIBUTION OF COMMERCIAL TRAILERS AND OF TRAILER PARTS AND
ACCESSORIES.  THE TRAILERS ARE VEHICLES DESIGNED FOR THE TRANSPORTATION
OF MERCHANDISE.  RESPONDENT'S PLANT IS LOCATED IN DETROIT AND IS THE
LARGEST CONCERN OF ITS KIND IN THE UNITED STATES.  RESPONDENT MAINTAINS
31 BRANCH SALES OFFICES IN 12 DIFFERENT STATES AND HAS DISTRIBUTORS AND
DEALERS IN THE PRINCIPAL CITIES OF THE COUNTRY.  A WHOLLY-OWNED
SUBSIDIARY OPERATES IN TORONTO, CANADA, WHERE SALES ARE MADE AND
CONSIDERABLE ASSEMBLY WORK IS DONE WITH MATERIALS OBTAINED FROM THE
DETROIT PLANT AND IN CANADA.  MORE THAN 50 PER CENT. IN VALUE OF THE
MATERIALS USED BY THE RESPONDENT IN MANUFACTURE, ASSEMBLY AND SHIPPING
DURING THE YEAR 1934 WERE TRANSPORTED TO ITS DETROIT PLANT FROM OHIO,
ILLINOIS, INDIANA AND OTHER STATES.  MOST OF THE LUMBER WAS TRANSPORTED
FROM SOUTHERN STATES AND MOST OF THE FINISHED PARTS WERE TRANSPORTED
FROM STATES OTHER THAN MICHIGAN.  IN 1934, RESPONDENT'S SALES AMOUNTED
TO $3,318,000.  ITS NEAREST COMPETITOR SOLD ONLY 37 PER CENT. OF THAT
AMOUNT.  MORE THAN 80 PER CENT. OF ITS SALES ARE OF PRODUCTS SHIPPED
OUTSIDE THE STATE OF MICHIGAN THROUGH AND TO OTHER STATES AND TO
FOREIGN COUNTRIES.  BETWEEN JANUARY 1 AND NOVEMBER 1, 1935, 112
CARLOADS OF RESPONDENT'S PRODUCTS WERE SHIPPED TO POINTS OUTSIDE THE
STATE OF MICHIGAN BY RAILROAD AND 400 TO 500 TRAILERS WITH ACCESSORIES
WERE HAULED OVER THE HIGHWAYS BY MOTOR TRUCKS OR TRACTORS TO POINTS
OUTSIDE THE STATE.  ABOUT 30 CHASSIS A DAY ARE FINISHED AT THE DETROIT
PLANT OF WHICH 80 PER CENT. ARE STARTED ON THEIR WAY TO DESTINATIONS
OUTSIDE MICHIGAN.  IN CONNECTION WITH ITS INTERSTATE SALES, RESPONDENT
FURNISHES SERVICE IN THE DETERMINATION OF CUSTOMERS' NEEDS AND ASSISTS
IN THE LAYING OUT OF SPECIAL CONSTRUCTION REQUIREMENTS.  RESPONDENT'S
SALES OF TRAILERS IN CANADA ARE ACCOMPLISHED THROUGH ITS CANADIAN
SUBSIDIARY, AND ITS SALES IN STATES OTHER THAN MICHIGAN ARE MADE
THROUGH ITS BRANCH SALES OFFICES AND ITS DISTRIBUTORS AND DEALERS.  IT
IS A PRACTICE OF RESPONDENT TO CONSIGN TRAILERS AND PARTS TO
DISTRIBUTORS AND DEALERS IN VARIOUS STATES WITH TITLE RETAINED IN
RESPONDENT UNTIL PAYMENT IS MADE.  THE MANUFACTURING AND ASSEMBLY
OPERATIONS AT THE DETROIT PLANT ARE ESSENTIALLY CONNECTED WITH AND
DEPENDENT UPON THE PURCHASE, SALES AND DISTRIBUTION OPERATIONS WITHOUT
THE STATE OF MICHIGAN.  THE FINDINGS ALSO DESCRIBE VARIOUS FEATURES OF
RESPONDENT'S MANUFACTURING AND DISTRIBUTING ACTIVITIES. 

WITH RESPECT TO THE ALLEGED UNFAIR LABOR PRACTICES, THE BOARD FOUND
IN SUBSTANCE AS FOLLOWS: THE UNITED AUTOMOBILE WORKERS FEDERAL LABOR
UNION NO. 19375 HAD BEEN ORGANIZED AMONG THE PRODUCTION AND MAINTENANCE
EMPLOYEES OF RESPONDENT'S DETROIT PLANT AND, AT THE TIME OF THE
OCCURRENCES DESCRIBED, INCLUDED 177 ACTIVE MEMBERS AND ABOUT 100
MEMBERS WHO AT ONE TIME OR ANOTHER PAID DUES AND DID NOT USUALLY ATTEND
MEETINGS.  THE PRODUCTION AND MAINTENANCE MEN AT RESPONDENT'S FACTORY
AT THAT TIME NUMBERED ABOUT 400.  EARLY IN 1934, RESPONDENT HIRED A
DETECTIVE WHOSE DUTY IT WAS "TO FERRET OUT THE UNION ACTIVITIES OF THE
MEN" AND TO KEEP THE RESPONDENT INFORMED.  THIS, AS THE RESPONDENT'S
VICE PRESIDENT STATED, WAS TO AVOID TROUBLE AND "TO KEEP A STEADY FLOW
OF BUSINESS."  FOR PURPOSES OF DECEPTION, AND IN ORDER TO MAKE THE
DETECTIVE ELIGIBLE FOR MEMBERSHIP IN THE UNION, RESPONDENT GAVE HIM
EMPLOYMENT.  HE JOINED THE UNION AND BECAME ITS TREASURER.  HE THUS
OBTAINED A LIST OF ALL THE MEMBERS OF THE UNION.  HE MADE FREQUENT
REPORTS TO RESPONDENT AND WITH THE LISTS THUS OBTAINED RESPONDENT'S
SUPERINTENDENT WENT ABOUT THE FACTORY FROM TIME TO TIME AND WARNED
VARIOUS EMPLOYEES AGAINST UNION ACTIVITIES.  THE RESULT OF THESE
MEASURES "CAUSED SUSPICION, UNREST AND CONFUSION AMONG THE EMPLOYEES." 
A SUB-FOREMAN, WHO WAS LATER DISCHARGED, WAS URGED BY THE
SUPERINTENDENT TO RESIGN HIS OFFICE IN THE UNION AND WORK WITH THE
SUPERINTENDENT "TO SEE THAT THE UNION DID NOT GAIN STRENGTH IN THE
PLANT."  THE SUB-FOREMAN, WHO INTERVIEWED APPLICANTS FOR WORK, WAS ALSO
INSTRUCTED BY HIS FOREMAN TO LEARN WHETHER THEY BELONGED TO A UNION OR
BELIEVED IN UNIONISM AND WAS TOLD THAT, IF THEY DID, THEY WOULD BE
OBJECTIONABLE.  RESPONDENT "DETERMINED TO PUT A STOP TO ALL ATTEMPTS ON
THE PART OF ITS FACTORY WORKERS TO FORM AN EFFICIENT INDEPENDENT
BARGAINING AGENCY AND IN FURTHERANCE OF THAT PURPOSE SUMMARILY
DISCHARGED NINE MEN AND THREATENED THREE OTHERS WITH DISCHARGE."  TWO
OF THE MEN WERE DISCHARGED BEFORE THE ACT BECAME EFFECTIVE. 

THE BOARD FOUND:  "AS TO THE REMAINING SEVEN MEN WHO WERE DISCHARGED,
THE EVIDENCE IS FOUND PRINCIPALLY IN THE TESTIMONY OF THE DISCHARGED
MEN AND OTHER EMPLOYEES.  THERE WAS NO CREDIBLE OR SUBSTANTIAL
CONTRADICTION OF THIS TESTIMONY.  OUR CONCLUSIONS AS TO THE UNFAIR
LABOR PRACTICES CHARGED ARE REACHED AFTER A CONSIDERATION OF SUCH
EVIDENCE AND ARGUMENT AS WERE OFFERED BY THE RESPONDENT, WHO FAILED TO
PRODUCE WITNESSES IN ITS OWN EMPLOY OBVIOUSLY HAVING KNOWLEDGE OF THE
FACTS SURROUNDING THESE DISCHARGES, AND WHO IN ITS BRIEF DOES NOT ARGUE
THAT ITS CONDUCT DID NOT CONSTITUTE UNFAIR LABOR PRACTICES." 

THE BOARD REVIEWED THE PARTICULAR CASES OF DISCHARGE AND FOUND THAT,
IN EACH, THE EMPLOYEE WAS DISCHARGED BECAUSE HE JOINED AND ASSISTED THE
UNION.  THE BOARD FOUND THAT AS A RESULT OF THE DISCHARGES THE MEMBERS
OF THE UNION WERE COERCED AND RESTRAINED FROM ANY ATTEMPT TO ORGANIZE
FOR COLLECTIVE BARGAINING; THAT RESPONDENT'S ACTS "LED TO CONFUSION,
RESENTMENT, AND BITTERNESS AMONG THE EMPLOYEES, AND TENDED TO LEAD TO A
LABOR DISPUTE BURDENING AND OBSTRUCTING COMMERCE AND THE FREE FLOW OF
COMMERCE" BETWEEN MICHIGAN AND OTHER STATES AND FOREIGN COUNTRIES. 

RESPONDENT, ON ITS PART, TRACES THE HISTORY OF THE DEVELOPMENT OF ITS
BUSINESS FROM ITS SMALL BEGINNINGS, EMPHASIZING THE OUTSTANDING SUCCESS
OF ITS ENTERPRISE.  RESPONDENT CRITICISES THE FINDING AS TO THE NUMBER
OF ITS EMPLOYEES WHO WERE MEMBERS OF THE UNION AND STATES THERE WAS NO
PROPER BASIS FOR THE FINDING THAT THERE WERE ONLY 400 EMPLOYEES IN THE
MANUFACTURING AND PRODUCTION DEPARTMENTS.  RESPONDENT CONTENDS THAT THE
TESTIMONY NEGATIVED ANY SHOWING OF LABOR DIFFICULTIES AND THAT SINCE
ITS FIRST OPERATIONS THERE HAD NOT BEEN A STRIKE AT THE PLANT WHICH
HAMPERED ITS OPERATIONS.  IT IS ALSO URGED THAT IT WAS NOT SHOWN THAT
THE DISCHARGES CAUSED A STRIKE AT THE PLANT OR DELAY IN OPERATIONS. 
RESPONDENT POINTS TO EVIDENCE THAT ONLY 35 MEN VOTED FOR A STRIKE OUT
OF A TOTAL OF 700 PRODUCTION AND MANUFACTURING EMPLOYEES; THAT ONLY 67
EMPLOYEES VOTED AT THE UNION MEETING AND THAT THE SUGGESTION OF A
STRIKE WAS VOTED DOWN.  RESPONDENT CONTENDS THAT THE TESTIMONY OF ITS
VICE-PRESIDENT SHOWED THAT, IN DISCHARGING AND LAYING OFF MEN DURING A
SLACK PERIOD OF PRODUCTION, THE SAME STANDARD WAS APPLIED TO UNION AND
NON-UNION MEN, THE DETERMINING FACTORS "BEING THE EFFICIENCY OF THE
WORKMAN, HIS COOPERATION AND WHETHER OR NOT HE APPEARED TO HAVE THE
COMPANY'S BEST INTERESTS AT HEART IN PERFORMING HIS DUTIES."    COUNSEL
FOR RESPONDENT IN THEIR BRIEF STATE THAT "RESPONDENT CALLED NO
WITNESSES AND OFFERED NO PROOF ON THE QUESTION OF ALLEGED UNFAIR LABOR
PRACTICES, EXCEPT THAT BROUGHT OUT ON CROSS-EXAMINATION OF DISCHARGED
EMPLOYEES AND FROM WITNESS VOSLER (ITS VICE PRESIDENT), CALLED BY THE
BOARD ON THIS PHASE OF THE CASE.  THE COMPANY AT ALL TIMES RELIED UPON
ITS POSITION THAT THE BOARD HAD NEITHER JURISDICTION OVER THE SUBJECT
MATTER OF THESE PROCEEDINGS, NOR OVER THE PERSON OF RESPONDENT, THAT
THE ACT, AS A WHOLE, WAS INVALID AND THE ATTEMPTED APPLICATION THEREOF
BY THE BOARD TO RESPONDENT IN THESE PROCEEDINGS WAS UNCONSTITUTIONAL." 

THE BOARD IN ITS FINDINGS STATED THAT RESPONDENT'S WITNESS, VOSLER,
TESTIFIED THAT "HE KNEW NONE OF THE FACTS" SURROUNDING ANY OF THE
DISCHARGES "OF HIS OWN KNOWLEDGE" AND THE BOARD COMMENTED UPON THE
FAILURE OF RESPONDENT TO PRODUCE THE FOREMAN, OR THE SUPERINTENDENT,
WHO WERE IN A POSITION TO CONTRADICT THE STATEMENTS OF EMPLOYEES, IF
THEY COULD BE CONTRADICTED, WITH RESPECT TO THE REASONS FOR THE
DISCHARGE. 

WE HAVE EXAMINED RESPONDENT'S CONTENTIONS AND WE ARE OF THE OPINION
THAT THE FINDINGS OF THE BOARD, WITH RESPECT TO THE NATURE OF THE
RESPONDENT'S BUSINESS AND THE CIRCUMSTANCES OF THE DISCHARGES
COMPLAINED OF, ARE SUPPORTED BY THE EVIDENCE. 

THE QUESTIONS RELATING TO THE CONSTRUCTION AND VALIDITY OF THE ACT
HAVE BEEN FULLY DISCUSSED IN OUR OPINION IN NATIONAL LABOR RELATIONS
BOARD V. JONES & LAUGHLIN CORP., ANTE, P. 1.  WE HOLD THAT THE
PRINCIPLES THERE STATED ARE APPLICABLE HERE.  THE DECREE OF THE CIRCUIT
COURT OF APPEALS IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 
..END :



NATIONAL LABOR RELATIONS BOARD V. CLOTHING CO., 301 U.S. 58 


NOS. 422 AND 423.  ARGUED FEBRUARY 11, 1937.  - DECIDED APRIL 12, 1937. 
- 85 F.(2D) 1, REVERSED. 


THE NATIONAL LABOR RELATIONS ACT, AND ORDERS MADE UNDER IT BY THE
NATIONAL LABOR RELATIONS BOARD, SUSTAINED UPON THE AUTHORITY OF
NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., ANTE,
P. 1, AS APPLIED TO A MANUFACTURER OF GARMENTS, HAVING ITS FACTORY IN
VIRGINIA BUT WHICH IMPORTED ITS CLOTH FROM OTHER STATES AND SOLD ALMOST
ALL OF THE FINISHED PRODUCTS IN OTHER STATES.  P. 72. 

NATIONAL LABOR RELATIONS BOARD V. FRIEDMAN-HARRY MARKS CLOTHING CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 299 U.S. 535, TO REVIEW DECREES OF THE CIRCUIT COURT OF
APPEALS REFUSING TO ENFORCE ORDERS OF THE NATIONAL LABOR RELATIONS
BOARD. 

I. WHERE THE SITUATION IN A PARTICULAR ENTERPRISE PRESENTS THE
LIKELIHOOD THAT A LABOR DISPUTE, IF IT OCCURRED, WOULD INVOLVE AN
INTENT TO RESTRAIN COMMERCE, THEN THE BOARD CAN APPLY THE PREVENTIVE
MEASURES OF THIS STATUTE TO THAT ENTERPRISE.  IT IS NOT CLAIMED IN THE
PRESENT CASE THAT THERE IS ANY PROOF OF THE EXISTENCE OF AN ACTUAL
INTENT TO AFFECT COMMERCE.  HOWEVER, RESPONDENT'S ENTERPRISE PRESENTS A
SITUATION IN WHICH A LABOR CONTROVERSY OVER EMPLOYEES' BASIC RIGHTS OF
SELF-ORGANIZATION AND FREEDOM FROM INTERFERENCE IN CHOICE OF
REPRESENTATIVES FOR PURPOSES OF COLLECTIVE BARGAINING WOULD BE LIKELY
TO INVOLVE THE PURPOSE NOT MERELY BY STOPPING PRODUCTION, BUT ALSO BY
INTERRUPTING OR HINDERING ACTUAL SALES AND SHIPMENTS IN INTERSTATE
COMMERCE. 

OVER 125,000 EMPLOYEES IN THE MEN'S CLOTHING INDUSTRY ARE MEMBERS OF
THE AMALGAMATED CLOTHING WORKERS OF AMERICA, THE LARGEST COLLECTIVE
BARGAINING AGENCY IN THE INDUSTRY.  ACTING THROUGH THAT REPRESENTATIVE
THOSE EMPLOYEES HAVE SECURED COLLECTIVE AGREEMENTS WHICH COVER THE
GREATER PART OF THE INDUSTRY.  BY THOSE AGREEMENTS, WAGES HAVE BEEN
INCREASED, HOURS SHORTENED, AND OTHER AMELIORATING STANDARDS OF
EMPLOYMENT OBTAINED AND MAINTAINED.  BY THEM, ALSO, THE PROCESSES OF
NEGOTIATION AND ARBITRATION HAVE BEEN SUBSTITUTED FOR THE STRIKE AND
LOCK-OUT AS A PEACEFUL METHOD OF SOLVING INDUSTRIAL PROBLEMS AFFECTING
EMPLOYER AND EMPLOYEE. 

EMPLOYEES WHO ARE MEMBERS OF THIS ORGANIZATION WILL NOT LIGHTLY YIELD
TO INFLUENCES ENDANGERING THE FAVORABLE CONDITIONS OF EMPLOYMENT NOW
ESTABLISHED AND EXISTING IN THE PRINCIPAL CENTERS OF THE INDUSTRY.  ON
THE CONTRARY, IT IS ONLY REASONABLE TO ASSUME THAT THEY WOULD ENDEAVOR
EFFECTIVELY TO COUNTERACT ANY SUCH DANGERS.  DANGERS OF THE CHARACTER
SUGGESTED IN FACT EXIST TODAY. 

WITH EFFECTIVE COMPETITION BETWEEN THE INDUSTRY'S ENTERPRISES AN
ACCEPTED FACT REGARDLESS OF LOCATION, AND BEARING IN MIND THE PURPOSE
AND EFFECT OF THE MIGRATION OF ENTERPRISES, IT SEEMS UNAVOIDABLE THAT
THE MEMBERS OF THE AMALGAMATED CLOTHING WORKERS SHOULD, AS THEY DO,
REGARD THE INDUSTRY AS ONE WHOSE ECONOMIC ORGANIZATION IS NOT BASED ON
THE INTERESTS OF EACH INDIVIDUAL ENTERPRISE, BUT IS ONE IN WHICH UNION
CONDITIONS, TO BE MAINTAINED AT ALL, MUST PREVAIL GENERALLY. 
INDUSTRIAL STRIFE IN RESPONDENT'S ENTERPRISE WOULD, THEREFORE, BE
LIKELY TO HAVE AS ITS OBJECT, NOT MERELY THE APPLICATION OF ECONOMIC
PRESSURE UPON RESPONDENT, BUT THE CESSATION OF SHIPMENTS FROM
RESPONDENT'S PLANT INTO THE NATIONAL MARKET, IN ORDER TO SAFEGUARD THE
ORGANIZATION AND COLLECTIVE BARGAINING RIGHTS IN COMPETING ENTERPRISES
AND AREAS BEYOND THE STATE OF VIRGINIA.  CF. CORONADO COAL CO. V.
UNITED MINE WORKERS, 268 U.S. 295, 310. 

WE ARE NOT HERE CONTENDING THAT THE CIRCUMSTANCES DESCRIBED ABOVE
ESTABLISH A VALID BASIS FOR WAGE STABILIZATION LEGISLATION UNDER THE
COMMERCE CLAUSE.  WE DO CONTEND THAT SUCH CIRCUMSTANCES GIVE RISE TO A
REASONABLE PROBABILITY OF INDUSTRIAL STRIFE INVOLVING THE PURPOSE TO
RESTRAIN ACTUAL SALES AND SHIPMENTS IN THE CHANNELS OF INTERSTATE
COMMERCE, AND THAT THEY DO ESTABLISH A VALID BASIS FOR A STATUTE SUCH
AS THIS, DEALING SOLELY WITH THE PROBLEM OF LABOR DISPUTES AS THEY
AFFECT THE NATIONAL INTEREST. 

II.  IT IS TRUE THAT RESPONDENT'S ENTERPRISE IS NOT SO CLEARLY WITHIN
A STREAM OF INTERSTATE COMMERCE AS THAT OF THE JONES & LAUGHLIN STEEL
CORPORATION, ANTE, P. 1.  NEVERTHELESS, WE SUBMIT THAT RESPONDENT'S
ENTERPRISE MAY BE CONSIDERED AS AN INTEGRAL PART OF A STREAM OF
COMMERCE AMONG THE STATES. 

THIS STREAM OR FLOW BEGINS WITH THE MOVEMENT OF THE RAW WOOL FROM THE
WEST TO THE NEW ENGLAND STATES.  MOST OF THE CLOTH MOVES ON IN
INTERSTATE COMMERCE TO THE CENTERS OF THE INDUSTRY, SUCH AS NEW YORK
(50.2% OF THE ENTERPRISES), PENNSYLVANIA (10.4%), AND MARYLAND
(10.2%). 

THIS INTERSTATE FLOW OF GOODS FROM MILL TO MANUFACTURER IS LIKEWISE
TRUE TO A SUBSTANTIAL EXTENT OF MANY OTHER MATERIALS ESSENTIAL TO
CLOTHING. 

LARGE INTERSTATE MOVEMENTS OCCUR EVEN DURING THE ACTUAL FABRICATION
OF THE GARMENTS.  THE PURCHASER OF THE CLOTH COMMONLY CUTS THE FABRIC
TO SHAPE AND SIZE, BUT THE ACTUAL SEWING, FINISHING, AND PRESSING ARE
FREQUENTLY DONE IN OTHER STATES. 

THE INTERSTATE MOVEMENT IN THE DISTRIBUTION OF PRODUCTS IS, OF
COURSE, A MATTER OF COMMON KNOWLEDGE. 

THE BOARD WAS JUSTIFIED IN APPLYING THE PREVENTIVE MEASURES OF THE
ACT TO RESPONDENT IN ORDER TO REMOVE THE CAUSES OF INDUSTRIAL STRIFE
WHICH WOULD BE APT TO SPREAD, BY SYMPATHETIC ACTION, UNTIL A
SUBSTANTIAL PART OF ALL THE COMMERCE IN MEN'S CLOTHING HAD BEEN
RESTRAINED. 

RESPONDENT IS, COMPARED TO OTHER FIRMS IN THE CLOTHING INDUSTRY, OF
RELATIVELY LARGE SIZE, BEING AMONG THE FIFTY LARGEST OF THE THREE
THOUSAND FIRMS WHICH MAKE UP THE INDUSTRY.  INDUSTRIAL STRIFE IN ITS
PLANT WOULD CAUSE THE CESSATION OF THIS LARGE VOLUME OF INTERSTATE
COMMERCE EVEN IF CONFINED TO RESPONDENT'S ENTERPRISE.  EVEN IF IT WERE
SO LIMITED, HOWEVER, IT SEEMS IMPOSSIBLE TO BELIEVE THAT CONGRESS IS
POWERLESS TO PREVENT A BURDEN ON COMMERCE OF THAT MAGNITUDE.  AS WE
HAVE SHOWN IN THE BRIEF FOR THE BOARD IN NATIONAL LABOR RELATIONS BOARD
V. JONES & LAUGHLIN STEEL CORP., ANTE, P. 1, THE EFFECT OF INDUSTRIAL
STRIFE ON INTERSTATE COMMERCE, EVEN THOUGH ARISING OUT OF LOCAL
ACTIVITY, IS IMMEDIATE AND WOULD BE SUBSTANTIAL HERE.  CERTAINLY THE
CESSATION OF PURCHASES AND SHIPMENTS BY AN ENTERPRISE OF THE SIZE OF
RESPONDENT'S CANNOT BE REGARDED AS WITHOUT NATIONAL SIGNIFICANCE.  NOR
CAN THE FACT THAT OTHER UNITS OF THE INDUSTRY COULD PROBABLY INCREASE
PRODUCTION SUFFICIENTLY TO SUPPLY THE DEFICIENCY CAUSED BY RESPONDENT
BE DETERMINATIVE OF THE POWER OF CONGRESS, FOR THE DISRUPTION OF THE
CHANNELS OF COMMERCE, EVEN WITH NO CHANGE IN THE AMOUNT OF MATERIAL
SHIPPED, IS IN ITSELF A BURDEN ON INTERSTATE COMMERCE WITHIN THE
CONSTITUTIONAL CONCERN OF CONGRESS. 

III.  WHERE CONGRESS, AFTER INVESTIGATION, DIRECTS ITS LEGISLATION TO
THE PREVENTION OF CERTAIN ACTIVITIES WHICH, EVEN THOUGH USUALLY ONLY OF
LOCAL CONCERN, RECUR WITH SUCH FREQUENCY AS TO CONSTITUTE AN UNDUE
BURDEN ON COMMERCE, THOSE ACTIVITIES MAY BE SUBJECTED TO THE CONTROL OF
CONGRESS. 

IF, AS WE CONTEND, THE CONTROL POWER OF CONGRESS EXTENDS TO RECURRENT
INDUSTRIAL STRIFE IN THESE INTERSTATE ENTERPRISES, THERE CAN BE NO
DOUBT THAT THE ORDER OF THE BOARD IN THE PRESENT CASE WAS WITHIN ITS
JURISDICTION.  RESPONDENT IS DEPENDENT UPON THE PRODUCTS OF STATES
OTHER THAN VIRGINIA FOR ALMOST 100% OF THE WOOLEN AND WORSTED GOODS
WHICH IT USES.  THE SAME CONDITION PREVAILS WITH RESPECT TO COTTON,
RAYON AND SILK LININGS, FELT, WIGAN AND COTTON TAPE, HYMO AND UNDER
COLLAR CLOTH.  IT CAN FAIRLY BE SAID THAT THE CONTRIBUTION OF VIRGINIA
ENTERPRISES TO THE OPERATIONS CONDUCTED AT RESPONDENT'S PLANT IS
NEGLIGIBLE. 

THE ACT IS UNCONSTITUTIONAL.  ITS REAL PURPOSE IS SOCIAL AND
ECONOMIC, AND TO BE ACCOMPLISHED IN AN ARBITRARY, CAPRICIOUS AND
DISCRIMINATORY MANNER THROUGH UNIONIZATION OF ALL INDUSTRY BY FIAT. 

THE VALIDITY OF LEGISLATION DEPENDS UPON ITS TRUE SUBSTANCE, NOT UPON
ITS FORM OR ITS DECLARATION OF "FINDINGS AND POLICY."  RAILROAD
RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330, 363, 371, 374; UNITED
STATES V. BUTLER, 297 U.S. 1; UNITED STATES V. CONSTANTINE, 296 U.S.
287, 296; ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S. 38, 51,
52; CARTER V. CARTER COAL CO., 298 U.S. 238, 289, 291. 

THE "FINDINGS AND POLICY" OF SEC. 1 OF THE ACT ATTEMPT TO CONCEAL THE
REAL OBJECTIVES IN A VAIN EFFORT TO JUSTIFY ILLEGALITY.  THE OBJECTIVES
AVOWED IN THE TITLE ARE BELIED BY THE TERMS OF THE ACT ITSELF. 

THE ACT IS ARBITRARY AND CAPRICIOUS.  THE MOST SIGNIFICANT FEATURE IS
ITS UTTER FAILURE TO REGULATE THE PRACTICES OF LABOR UNIONS OR TO MAKE
THEM RESPONSIBLE, IN ANY DEGREE, FOR THEIR ACTS OR FOR THE ACTS OF
THEIR REPRESENTATIVES.  IT GOES FARTHER IN ASSISTING UNIONIZATION AND
DISARMING EMPLOYERS THAN ANY PREVIOUS LEGISLATION EVER ENACTED IN ANY
COUNTRY OPERATING UNDER A REPUBLICAN FORM OF GOVERNMENT.  IF STRIKES
AND INDUSTRIAL STRIFE BURDEN OR OBSTRUCT INTERSTATE COMMERCE, AND IF
CONGRESS REALLY INTENDS TO ELIMINATE THEM, MUTUAL OBLIGATIONS MUST BE
PLACED ON BOTH EMPLOYER AND EMPLOYEE. 

THE ACT ARBITRARILY DISCRIMINATES AGAINST NON-UNION WORKERS, BY
PRACTICALLY REQUIRING EVERY WORKER TO JOIN A LABOR UNION, OR BE BOUND
BY ITS AGREEMENTS WITH HIS EMPLOYER, OR FORFEIT HIS JOB.  HE CANNOT
TURN TO HIS EMPLOYER, BECAUSE THE EMPLOYER IS FORBIDDEN BY SEC. 8 TO
TAKE ANY STEPS WHATEVER TO HELP HIM.  HE CANNOT TURN TO THE LABOR
RELATIONS BOARD, BECAUSE THE ACT GIVES IT NO JURISDICTION OVER ANY
COMPLAINTS AGAINST LABOR UNIONS.  WHILE SEC. 8 PROHIBITS AN EMPLOYER
FROM DISCHARGING ANY EMPLOYEE BECAUSE HE IS A MEMBER OF A LABOR UNION,
THE SAME SECTION GIVES HIM THE RIGHT TO DISCHARGE HIS EMPLOYEE IF HE
REFUSES TO BECOME A MEMBER. 

THUS THE ACT FOSTERS AND GIVES STATUTORY SANCTION TO THE "CLOSED
SHOP," TRADITIONALLY THE FUNDAMENTAL OBJECTIVE AND PRIME DEMAND OF
EVERY UNION.  NOT ONLY THAT, BUT THIS SECTION 8 PLACES THE BEWILDERED
AND HELPLESS EMPLOYER AT THE MERCY OF RIVAL UNIONS, EACH OF WHICH MAY
BE DEMANDING, ON ITS OWN BEHALF, A CLOSED SHOP, ONE BEING IN THE
ASCENDANCY ONE DAY AND THE OTHER THE NEXT. 

LABOR ORGANIZATION, THE EMPLOYER MUST BARGAIN COLLECTIVELY WITH IT, AND
THE TERMS OF THAT BARGAIN SHALL BE BINDING UPON NON-UNION WORKERS.  THE
ONLY RECOURSE OPEN TO NON-UNION WORKERS IS THAT FOUND IN SUBSECTION (A)
OF SEC. 9, THAT THEY "SHALL HAVE THE RIGHT AT ANY TIME TO PRESENT
GRIEVANCES TO THEIR EMPLOYER."  WHAT A MOCKERY THIS IS. 

THE ACT DISCRIMINATES IN FAVOR OF A SELECTED TYPE OF LABOR
ORGANIZATION AND ARBITRARILY OUTLAWS ALL OTHERS. 

SUBDIVISION 2 OF SEC. 8 REFERS TO "ANY" ORGANIZATION OF WORKERS, AND
MAKES IT UNLAWFUL FOR AN EMPLOYER TO CONTRIBUTE FINANCIAL "OR OTHER
SUPPORT" TO IT.  THEN, BY SUBDIVISION 3 OF SEC. 8, THE EMPLOYER IS
PROHIBITED FROM CONTRACTING WITH SUCH AN ORGANIZATION OF HIS WORKERS. 
ALL COMPANY UNIONS AND LOCAL ORGANIZATIONS OF WORKERS ARE THEREBY
ARBITRARILY OUTLAWED.  THIS INTOLERANT, BIGOTED AND PREJUDICED ATTITUDE
EXEMPLIFIED NOT ONLY IN THE ACT BUT BY THE DECISIONS OF THE BOARD, IS
EMPHASIZED BY THE PROVISIONS CONTAINED IN SUBDIVISION 2 OF SEC. 8 AND
SUBDIVISION (A) OF SEC. 9, WHICH PROVIDE THAT THE EMPLOYER MAY "CONFER"
WITH HIS INDIVIDUAL EMPLOYEES AND THAT THEY MAY "PRESENT GRIEVANCES" TO
HIM, "SUBJECT TO RULES AND REGULATIONS MADE AND PUBLISHED BY THE
BOARD."  IN OTHER WORDS, THE EMPLOYER MAY TALK TO HIS EMPLOYEES ABOUT
THEIR WORK AND THEY, ON THEIR PART, MAY TALK TO HIM ABOUT IT, ONLY AT
THE TIMES AND UNDER THE CONDITIONS PRESCRIBED BY THE NATIONAL LABOR
RELATIONS BOARD. 

THUS, THIS ACT ACTUALLY ERECTS A BARRIER BETWEEN THEIR FREE
INTERCOURSE AND RELATIONS, ATTRIBUTES IMPROPER MOTIVES BOTH TO ALL
EMPLOYERS AND THEIR WORKERS NOT HAVING UNION AGREEMENTS, PREVENTS EVEN
THE POSSIBILITY OF MUTUAL UNDERSTANDING OF MUTUAL PROBLEMS, AND FORCES
THEM TO DEAL WITH EACH OTHER AT ARMS' LENGTH. 

CERTAINLY, IT NEED NOT BE ARGUED THAT THE EFFICIENCY OF EMPLOYEES IS
ENHANCED, AND LABOR TURNOVER DECREASED, IN PROPORTION TO THE EMPLOYER'S
ABILITY TO INSPIRE AND HOLD THE GOODWILL, LOYALTY, CONFIDENCE, AND
COOPERATION OF HIS EMPLOYEES BY HIS FRIENDLY ASSOCIATION WITH AND
SYMPATHETIC ATTITUDE TOWARD THEM AND THEIR INTERESTS.  THIS IS
FUNDAMENTAL IN GOOD BUSINESS MANAGEMENT.  IT MUST BE OBVIOUS THAT NO
CONSIDERATIONS OF GENERAL PUBLIC WELFARE OR INDUSTRIAL PEACE, MUCH LESS
THE REGULATION OF INTERSTATE COMMERCE, DICTATED THIS ARBITRARY
DISTINCTION BETWEEN COMPANY UNIONS AND NATIONAL LABOR UNIONS, BUT THAT
THE OUTLAWING OF COMPANY UNIONS WAS INSERTED IN THIS ACT SOLELY AT THE
BEHEST OF THE NATIONAL LABOR UNIONS, WHICH SOUGHT BY STATUTORY
ENACTMENT TO DESTROY ALL ORGANIZATIONS OF WORKERS IN INDUSTRY WHICH
THEY DID NOT OR COULD NOT CONTROL. 

THE ADMINISTRATIVE PROCEDURE OUTLINED IN THE ACT, AND THE PROCEDURE
ADOPTED BY THE BOARD IN ITS ADMINISTRATION OF THE ACT, DEMONSTRATE ITS
DISCRIMINATORY, ARBITRARY, UNREASONABLE, AND UNLAWFUL CHARACTER. 

MANUFACTURING IS A PURELY LOCAL ACTIVITY WHICH MAY NOT BE REGULATED
UNDER THE COMMERCE CLAUSE. 

IN THE SCHECHTER CASE THE ARTICLES WERE IMPORTED FROM OTHER STATES IN
ADVANCE OF THE ACTIVITY OVER WHICH THE FEDERAL GOVERNMENT SOUGHT TO
IMPOSE LABOR REGULATIONS.  IN THE CARTER CASE THE CONDITIONS REGULATED
PRECEDED THE EXPORTATION OF THE COAL TO OTHER STATES.  IN THE PRESENT
CASE, RAW MATERIALS ARE IMPORTED INTO VIRGINIA BEFORE THE MANUFACTURING
OPERATIONS TAKE PLACE, AND THE FINISHED PRODUCT THEREAFTER FINDS ITS
WAY INTO OTHER STATES.  THIS FACTUAL DIFFERENCE HAS NO LEGAL
SIGNIFICANCE.    THE DEALINGS AND TRANSACTIONS BETWEEN THE RESPONDENT
AND ITS EMPLOYEES, WITH RESPECT TO AND IN THE COURSE OF MANUFACTURE OF
ITS PRODUCT, BEAR NO RELATIONSHIP TO INTERSTATE COMMERCE. 

HERE THE BOARD IS DRIVEN TO THE FOLLOWING SOPHISTRY:  (1) MEN'S
CLOTHING IS AN IMPORTANT COMMODITY; (2) THE RAW MATERIALS NECESSARY
COME FROM VARIOUS STATES OF THE UNION AND FROM FOREIGN LANDS TO THE
POINT OF MANUFACTURE; (3) THE CLOTHING IS PRODUCED IN ONLY SOME OF THE
STATES, WHILE IT IS SHIPPED TO AND USED IN ALL OF THEM; (4) EMPLOYEES
IN THIS INDUSTRY ARE NOT ON A LEVEL WITH THEIR EMPLOYERS WITH RESPECT
TO BARGAINING POWERS; (5) TO SECURE AN EQUAL FOOTING FOR THEM IT IS
NECESSARY THAT THEY BE PERMITTED TO ORGANIZE AND EXERCISE THEIR
BARGAINING POWERS THROUGH ORGANIZATIONS; (6) LABOR ORGANIZATIONS MUST
BE PERMITTED COMPLETE FREEDOM, TO ATTEMPT TO UNIONIZE INDUSTRIES AND
BUSINESS, BECAUSE THEY OFFER THE BEST MEDIUM FOR REPRESENTATION OF
EMPLOYEES; (7) STRIKES, INDUSTRIAL STRIFE AND UNREST ARE THE INEVITABLE
RESULT OF THE FAILURE OF EMPLOYERS TO RECOGNIZE THE RIGHTS OF THEIR
EMPLOYEES TO ORGANIZE AND BARGAIN COLLECTIVELY; (8) WHEN THESE
CONDITIONS EXIST THE MOVEMENT OF COMMERCE AMONG THE VARIOUS STATES MAY
BE AFFECTED AND IMPAIRED; (9) IF THE FLOW OF INTERSTATE COMMERCE IS
INTERFERED WITH, A DECREASE IN PURCHASING POWER MAY RESULT AND MAY LEAD
TO ECONOMIC DEPRESSION; AND (10) THAT THEREFORE AND THEREBY INTERSTATE
COMMERCE IS DIRECTLY AFFECTED. 

NOT ONLY IS THIS SOPHISTRY SPECIOUS AND FALLACIOUS, AND BEYOND THE
REALM OF ANY VALID LEGAL CONCEPT, BUT IT IS ESPECIALLY RIDICULOUS IN
THE LIGHT OF THE PARTICULAR FACTS IN THIS CASE. 

WHEN IT IS SOUGHT TO APPLY IT HERE TO THIS CASE, THE GOVERNMENT IS
CONSTRAINED TO MAKE EVEN THESE ADDITIONAL ASSUMPTIONS: 

(11) THAT THE DISCHARGE OF NINETEEN EMPLOYEES AND THE HOSTILITY OF
THE EMPLOYER TOWARD THE UNION MIGHT CAUSE OTHER EMPLOYEES TO BECOME
SUSPICIOUS OF AND DISSATISFIED WITH THEIR EMPLOYER; (12) UNREST MIGHT
BE CAUSED IN THE PLANT; (13) OTHER EMPLOYEES MIGHT JOIN THE UNION; (14)
MORE DISCHARGES MIGHT FOLLOW; (15) SUCH DISCHARGES MIGHT PRODUCE A
STRIKE; (16) RESPONDENT MIGHT NOT BE ABLE TO OBTAIN NEW WORKERS TO
REPLACE STRIKERS; (17) RESPONDENT MIGHT NOT HAVE SUFFICIENT FINISHED
PRODUCT ON HAND TO SUPPLY THE DEMANDS OF HIS CUSTOMERS DURING THE
STRIKE; (18) PRODUCTION OF MERCHANDISE MIGHT FALL BELOW DEMAND; (19)
THE AMOUNT OF RESPONDENT'S GOODS MOVING IN INTERSTATE COMMERCE MIGHT
DECREASE; (20) SUCH DECREASE MIGHT SUFFICE TO "AFFECT THE FREE FLOW OF
COMMERCE" IN MEN'S CLOTHING; AND (21) SUCH AN EFFECT UPON INTERSTATE
COMMERCE WOULD BE A "DIRECT" ONE. 

THE RECORD IN THIS CASE DIRECTLY BELIES SUCH HYPOTHESES.  RESPONDENT
DISCHARGED NINETEEN OF ITS EIGHT HUNDRED EMPLOYEES.  THERE IS NO
EVIDENCE THAT THE GARMENTS UPON WHICH THEY WERE WORKING WERE DESTINED
TO BE SHIPPED TO CUSTOMERS OUTSIDE, RATHER THAN WITHIN, THE STATE OF
VIRGINIA.  THERE WAS AND HAS BEEN NO DISORDER, NO STRIFE, NO
INTERFERENCE WITH THE ORDERLY CONDUCT OF THE BUSINESS OF RESPONDENT,
AND NO STRIKE RESULTING FROM THE DISCHARGE OF THESE WORKERS.  THE
ACTION OF RESPONDENT, UNDEFENDED IN THIS CASE, HAS NOT BURDENED,
OBSTRUCTED, OR AFFECTED THE FLOW OF INTERSTATE COMMERCE, NOR HAS IT
TENDED TO BURDEN, OBSTRUCT OR AFFECT THE FLOW OF INTERSTATE COMMERCE. 
IT HAS NOT EVEN AFFECTED IN ANY WAY THE FLOW OF PRODUCTION IN
RESPONDENT'S OWN FACTORY, MUCH LESS THE FLOW OF INTERSTATE COMMERCE OR
THE FLOW OF MEN'S CLOTHING INTO INTERSTATE COMMERCE. 

BUT THE GOVERNMENT CONTENDS IT HAS THE RIGHT TO UTTERLY DISREGARD THE
FACTS OF THIS CASE AND THE PATENT ACTUALITY THAT THE ALLEGED UNFAIR
LABOR PRACTICES IN NO WISE BURDENED OR OBSTRUCTED INTERSTATE OR EVEN
INTRASTATE COMMERCE.  IT ARGUES THAT THE MEN'S CLOTHING INDUSTRY IS AN
IMPORTANT NATIONAL INDUSTRY; THAT THE INDUSTRY WILL BE ABLE TO FUNCTION
BETTER AND WITH LESS STRIFE IF UNIONS ARE ENCOURAGED; THAT LABOR
DISPUTES BETWEEN EMPLOYERS AND EMPLOYEES HAVE IN THE PAST CAUSED AND
WILL CONTINUE TO CAUSE STRIKES AND LABOR UNREST; AND THAT SUCH
RECURRENT CONTROVERSIES AND EVILS AFFECT PRODUCTION, CONSUMPTION AND
THE FLOW OF FEDERAL GOVERNMENT MAY PREVENT AS WELL AS REMEDY SUCH
EVILS. 

EXACTLY THE SAME CONTENTION WAS MADE AND REJECTED IN THE CARTER
CASE. 

FIVE DIFFERENT CIRCUIT COURTS OF APPEALS HAVE THUS FAR PASSED UPON
CASES INVOLVING THE QUESTION OF WHETHER THIS ACT IS, UNDER THE COMMERCE
CLAUSE, APPLICABLE TO VARIOUS MANUFACTURING BUSINESSES.  WITHOUT A
DISSENTING VOICE THE PROPOSITION HAS BEEN REJECTED.  FOSTER BROTHERS
MFG. CO. V. NATIONAL LABOR RELATIONS BOARD, CCA-4, 85 F.(2D) 984;
FRUEHAUF TRAILER CO. V. NATIONAL LABOR RELATIONS BOARD, CCA-6, 85
F.(2D) 391; PRATT V. STOUT, CCA-8, 85 F.(2D) 172; NATIONAL LABOR
RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., CCA-5, 83 F.(2D) 998;
NATIONAL LABOR RELATIONS BOARD V. FRIEDMAN-HARRY MARKS CLOTHING CO.,
CCA-2, 85 F.(2D) 1. 

THIS ACT VIOLATES THE FIFTH AMENDMENT IN FOUR PARTICULARS: 

FIRST, SUBSECTIONS 3 AND 4 OF SEC. 8 ATTEMPT TO REGULATE THE
CONDITIONS UNDER WHICH AN EMPLOYER MAY ENGAGE HIS WORKERS AND UNDER
WHICH HE MAY DISCHARGE THEM.  THIS ACTUALLY SUBSTITUTES MANAGEMENT BY
THE BOARD FOR THAT OF THE OWNER OF THE BUSINESS. 

EVEN FROM THE STANDPOINT OF THE EMPLOYEE, THESE SUBSECTIONS ARE AN
ARBITRARY AND UNREASONABLE INTERFERENCE WITH HIS RIGHTS.  MOREOVER,
THEY PLACE UNION EMPLOYEES IN A FAVORED STATUS OVER NON-UNION WORKERS
AS TO TENURE OF EMPLOYMENT AND ADVANCEMENT THEREIN.  CF. ROSENTHAL
ETTLINGER V. SCHLOSSBERG, 226 N.Y.S. 762. 

SECOND, SEC. 9(A) PROHIBITS AN EMPLOYER FROM DEALING INDIVIDUALLY
WITH HIS EMPLOYEES, AND FROM DEALING WITH MINORITY GROUPS OF HIS
EMPLOYEES, IN RESPECT OF RATES OF PAY, WAGES, HOURS OR OTHER CONDITIONS
OF EMPLOYMENT.  IT MAKES AGREEMENTS BETWEEN THE MAJORITY GROUP AND THE
EMPLOYER, AS TO ALL CONDITIONS OF EMPLOYMENT, BINDING UPON ALL
INDIVIDUAL WORKERS AND UPON ALL MINORITY GROUPS, THEREBY DEPRIVING EACH
OF THEM OF HIS RIGHT TO MAKE HIS OWN TERMS WITH HIS EMPLOYER.  CF.
CARTER V. CARTER COAL CO., SUPRA, P. 311. 

THIRD, SUBSECTION 5 OF SEC. 8 MAKES IT AN UNFAIR LABOR PRACTICE FOR
AN EMPLOYER "TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES
OF HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SEC. 9(A)." 

THE OLD NATIONAL LABOR RELATIONS BOARD, SET UP UNDER THE TERMS OF THE
NATIONAL INDUSTRIAL RECOVERY ACT, AS WELL AS THE PRESENT NATIONAL LABOR
RELATIONS BOARD, OPERATING UNDER THE NATIONAL LABOR RELATIONS ACT, HAVE
UNIFORMLY AND CONSISTENTLY HELD IN NUMEROUS CASES THAT THIS
REQUIREMENT, THAT AN EMPLOYER COLLECTIVELY BARGAIN WITH HIS EMPLOYEES,
MEANS THAT THE EMPLOYER SHALL CONTINUE TO BARGAIN WITH HIS EMPLOYEES
UNTIL AN AGREEMENT ACTUALLY HAS BEEN REACHED. 

WITH THE INTENT OF THIS PROVISION THUS DISCLOSED, IT WILL BE SEEN
THAT THIS SECTION OF THE NATIONAL LABOR RELATIONS ACT INTERFERES WITH
THE RIGHTS OF THE EMPLOYER BY REQUIRING HIM TO ENTER INTO CONTRACTUAL
NEGOTIATIONS WITH PERSONS WITH WHOM HE MAY NOT CARE TO CONTRACT AND
COERCING HIM INTO AGREEING TO TERMS WHICH MAY NOT BE ACCEPTABLE TO
HIM. 

THE WORST FEATURE OF THIS SO-CALLED "COLLECTIVE BARGAINING" LIES IN
THE FACT THAT IT DOES NOT REQUIRE BARGAINING BY BOTH PARTIES TO THE
CONTROVERSY.  THE EMPLOYER IS FORCED TO BARGAIN.  HE MUST RECEDE FROM
HIS ORIGINAL POSITION IN ORDER TO COMPROMISE WITH THE UNION DEMANDS;
AND THEN HE IS BOUND TO CARRY OUT HIS AGREEMENT.  ON THE OTHER HAND,
THE UNION CANNOT BE REQUIRED TO BARGAIN, EVEN IF THE EMPLOYER DESIRES
OR DEMANDS IT.  IT NEED NOT RETREAT FROM ITS ORIGINAL DEMANDS, HOWEVER
PREPOSTEROUS; AND IT AND THE EMPLOYEES IT REPRESENTS ARE NOT BOUND AND
CANNOT BE COMPELLED TO CARRY OUT ANY AGREEMENT IT MAKES. 

FOURTH, SUBSECTION 3 OF SEC. 8 SPECIFICALLY PROVIDES THAT AN EMPLOYER
MAY AGREE WITH THE MAJORITY OF HIS EMPLOYEES, THROUGH COLLECTIVE
BARGAINING, TO EMPLOY ONLY UNION MEMBERS; WHILE, AT THE SAME TIME,
SECS. 7, 8, AND 9, MAKE IT UNLAWFUL FOR AN EMPLOYER TO AGREE TO EMPLOY
ONLY NON-UNION WORKERS.  THIS INVADES THE RIGHTS OF INDIVIDUAL WORKERS
AND EMPLOYERS BY PERMITTING UNIONS, THROUGH THE MEDIUM OF COMPULSORY
COLLECTIVE BARGAINING, TO PRESCRIBE THAT NON-UNION EMPLOYEES SHALL JOIN
THEIR UNION AS A CONDITION PRECEDENT TO OBTAINING OR RETAINING THEIR
POSITIONS, AT THE SAME TIME MAKING IT UNLAWFUL FOR ANY INDIVIDUAL
EMPLOYEE OR GROUP OF EMPLOYEES TO OBTAIN AN AGREEMENT FROM HIS OR THEIR
EMPLOYER NOT TO EMPLOY UNION WORKERS. 

CF. ALLGEYER V. LOUISIANA, 165 U.S. 578, 589; ADAIR V. UNITED STATES,
208 U.S. 161; ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525; MOREHEAD V.
NEW YORK EX REL. TIPALDO, 298 U.S. 587; WOLFF V. KANSAS, 262 U.S. 522,
S.C., 267 U.S. 552.  DISTINGUISHING:  TEXAS & N.O.R. CO. V. RAILWAY
CLERKS, 281 U.S. 548. 

THE BASIC PURPOSE OF THE ACT IS TO ACCOMPLISH COMPULSORY COLLECTIVE
BARGAINING, BINDING UPON MINORITY EMPLOYEES; THIS BEING INVALID, THE
ENTIRE STATUTE MUST FALL. 

THE ACT GIVES TO THE BOARD, AND THE BOARD HAS ASSUMED, POWERS WHICH,
IF VALID AT ALL, MAY BE EXERCISED ONLY BY CONGRESS AND THE DULY
CONSTITUTED COURTS OF THE UNITED STATES. 

THE ORDER OF THE BOARD REQUIRING THE REINSTATEMENT OF THE EMPLOYEES,
WITH BACK PAY, IS ARBITRARY AND ILLEGAL. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE NATIONAL LABOR RELATIONS BOARD, BY ITS ORDERS OF MARCH 28, 1936,
REQUIRED THE RESPONDENT, FRIEDMAN-HARRY MARKS CLOTHING COMPANY, INC.,
TO CEASE AND DESIST FROM DISCHARGING ANY OF ITS EMPLOYEES OR OTHERWISE
DISCRIMINATING IN REGARD TO THE TENURE AND CONDITIONS OF THEIR
EMPLOYMENT, AND FROM THREATENING SUCH ACTION, FOR THE REASON THAT SUCH
EMPLOYEES HAVE JOINED OR ASSISTED THE AMALGAMATED CLOTHING WORKERS OF
AMERICA OR OTHERWISE ENGAGED IN UNION ACTIVITY; FROM MAINTAINING
SURVEILLANCE OF THE ACTIVITIES OF THE LABOR ORGANIZATION AND OF THEIR
EMPLOYEES IN CONNECTION THEREWITH; AND FROM INTERFERING IN ANY MANNER
WITH, OR COERCING, ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO SELF
ORGANIZATION AND REPRESENTATION FOR THE PURPOSE OF COLLECTIVE
BARGAINING OR OTHER MUTUAL AID OR PROTECTION AS GUARANTEED IN SEC. 7 OF
THE NATIONAL LABOR RELATIONS ACT.  THE ORDERS ALSO REQUIRED RESPONDENT
TO OFFER REINSTATEMENT TO CERTAIN DISCHARGED EMPLOYEES, TO MAKE GOOD
THEIR LOSS OF PAY, AND TO POST NOTICES FOR THIRTY DAYS THAT RESPONDENT
WOULD CEASE AND DESIST FROM THE PRACTICES RESTRAINED BY THE ORDERS. 
THE CIRCUIT COURT OF APPEALS REFUSED TO ENFORCE THE ORDERS, 85 F.(2D)
1, AND THIS COURT GRANTED CERTIORARI. 

THE PROCEEDING WAS INITIATED BY THE NATIONAL LABOR RELATIONS BOARD
UPON CHARGES THAT THE RESPONDENT HAD DISCHARGED CERTAIN EMPLOYEES
BECAUSE THEY HAD ENGAGED IN UNION ACTIVITIES.  THE BOARD ISSUED TWO
COMPLAINTS ALLEGING UNFAIR LABOR PRACTICES WITHIN THE MEANING OF THE
NATIONAL LABOR RELATIONS ACT.  NOTICE OF HEARING WAS GIVEN.  RESPONDENT
APPEARED SPECIALLY AND MOVED TO DISMISS THE COMPLAINTS UPON THE GROUNDS
THAT THE ACT, AND THE PROCEEDINGS BEFORE THE BOARD, WERE IN
CONTRAVENTION OF ARTICLES I AND III AND THE FIRST, FIFTH, SIXTH,
SEVENTH, EIGHTH, NINTH, TENTH AND THIRTEENTH AMENDMENTS OF THE
CONSTITUTION OF THE UNITED STATES.  RESERVING THESE OBJECTIONS,
RESPONDENT FILED ANSWERS DENYING ALL THE ALLEGATIONS OF THE COMPLAINTS
EXCEPT THAT RESPONDENT IS A VIRGINIA CORPORATION ENGAGED IN THE
BUSINESS OF MANUFACTURING MEN'S CLOTHING IN RICHMOND.  THE BOARD
OVERRULED THE OBJECTIONS TO ITS JURISDICTION AND THE VALIDITY OF THE
ACT.  FOR THE PURPOSE OF PRESENTING THE CONSTITUTIONAL QUESTIONS, AND
TO EXPEDITE THE PROCEEDINGS, COUNSEL FOR RESPONDENT ANNOUNCED AT THE
BEGINNING OF THE HEARINGS "THAT HE WOULD NOT CROSS-EXAMINE ANY OF THE
BOARD'S WITNESSES AND WOULD NOT OFFER ANY COUNTERVAILING EVIDENCE." 
THE BOARD RECEIVED EVIDENCE AND MADE ITS FINDINGS.  THERE WERE NUMEROUS
OBJECTIONS BY RESPONDENT TO THE COMPETENCY AND RELEVANCY OF CERTAIN
TESTIMONY. 

THE BOARD FOUND:  RESPONDENT, A VIRGINIA CORPORATION, HAS ITS PLANT
AT RICHMOND, WHERE IT IS ENGAGED IN THE PURCHASE OF RAW MATERIALS AND
THE MANUFACTURE, SALE AND DISTRIBUTION OF MEN'S CLOTHING.  THE
PRINCIPAL MATERIALS ARE WOOLEN AND WORSTED GOODS.  99.57 PER CENT. OF
THESE GOODS COME FROM STATES OTHER THAN VIRGINIA, 75 PER CENT. BEING
PURCHASED IN NEW YORK AND FABRICATED FOR THE MOST PART IN OTHER
STATES.  COTTON LININGS COME FROM SEVERAL SOUTHERN STATES.  PARTICULARS
AS TO THE SOURCES OF OTHER MATERIALS ARE SET FORTH.  OF THE GARMENTS
MANUFACTURED BY RESPONDENT, 82.8 PER CENT. ARE PURCHASED BY CUSTOMERS
OUTSIDE THE STATE, MAINLY BY DEPARTMENT STORES AND MEN'S CLOTHING
STORES IN THE LARGER CITIES THROUGHOUT THE COUNTRY.  RESPONDENT
MAINTAINS A SALES OFFICE AND SHOWROOM IN NEW YORK CITY THROUGH WHICH 15
OR 20 PER CENT. OF THE TOTAL SALES ARE MADE.  ORDERS ARE SENT TO THE
RICHMOND PLANT, THE GOODS BEING SOLD F.O.B. RICHMOND.  IN 1932, THE
VOLUME OF RESPONDENT'S BUSINESS AMOUNTED TO $800,000 AND 80,000 UNITS,
INCREASING TO $1,750,000 AND 150,000 UNITS IN THE FIRST TEN MONTHS OF
1935. 

THE BOARD MADE ELABORATE FINDINGS WITH RESPECT TO THE CLOTHING
MANUFACTURING INDUSTRY AND ITS RELATION TO INTERSTATE COMMERCE.  AMONG
THESE FINDINGS ARE THE FOLLOWING:  THE MEN'S CLOTHING INDUSTRY IS AMONG
THE TWENTY MOST IMPORTANT MANUFACTURING INDUSTRIES IN THIS COUNTRY. 
FIFTY PER CENT. OF THE MANUFACTURING ESTABLISHMENTS ARE IN THE STATE OF
NEW YORK; MOST OF THE REMAINDER ARE IN PENNSYLVANIA, MARYLAND, NEW
JERSEY, ILLINOIS, MASSACHUSETTS, CALIFORNIA AND OHIO.  SINCE THE MEN'S
WEAR FABRICS ARE PRODUCED LARGELY IN THE NEW ENGLAND STATES, THE GOODS
MUST BE TRANSPORTED FROM THE MILLS ACROSS STATE LINES TO THE
FABRICATING ESTABLISHMENTS IN THE STATES ABOVE THE MANUFACTURED
CLOTHING IS SOLD THROUGHOUT THE NATION, ONLY ABOUT 48 PER CENT. OF THE
TOTAL SALES BEING MADE IN THE SEVEN STATES WHICH PRODUCE ABOUT 90 PER
CENT. OF THE TOTAL MEN'S CLOTHING.  THE FINDINGS DESCRIBE THE METHODS
OF SALES, THE NEW YORK MARKET BEING THE LARGEST IN THE COUNTRY.  THE
BOARD CONCLUDED:  "THE MEN'S CLOTHING INDUSTRY IS THUS AN INDUSTRY
WHICH IS NEARLY ENTIRELY DEPENDENT IN ITS OPERATIONS UPON PURCHASES AND
SALES IN INTERSTATE COMMERCE AND UPON INTERSTATE TRANSPORTATION.  THERE
IS A CONSTANT FLOW OF RAW WOOL FROM THE WESTERN STATES AND FOREIGN
COUNTRIES TO THE MILLS OF NEW ENGLAND WHERE IT IS TRANSFORMED INTO
MEN'S WEAR FABRICS, THENCE TO THE SPONGING AND SHRINKING PLANTS OF NEW
YORK AND PHILADELPHIA, THEN, JOINED BY THE OTHER NECESSARY RAW
MATERIALS, TO THE FABRICATING FACTORIES OF THE MIDDLE ATLANTIC STATES
FOR MANUFACTURE INTO CLOTHING....  THE INDUSTRY ITSELF HAS NO DOUBT AS
TO ITS STATUS, FOR THE EXECUTIVE DIRECTOR OF THE NEW YORK CLOTHING
MANUFACTURERS EXCHANGE, INC., WHICH REPRESENTS ABOUT 250 MANUFACTURERS
DOING 70 PER CENT. OF THE TOTAL BUSINESS IN THE NEW YORK MARKET, STATED
IN HIS AFFIDAVIT THAT THE INDUSTRY IS CONDUCTED AS AN INTERSTATE
BUSINESS AND IS ENTIRELY DEPENDENT UPON INTERSTATE COMMERCE." 

THE BOARD ALSO MADE FINDINGS IN RELATION TO THE LABOR ORGANIZATION
HERE INVOLVED.  THE BOARD FOUND:  "THE AMALGAMATED CLOTHING WORKERS OF
AMERICA IS A LABOR ORGANIZATION COMPOSED OF OVER 125,000 MEN AND WOMEN
EMPLOYED IN THE MEN'S AND BOYS' CLOTHING INDUSTRY....  THE PERIOD
BEFORE THE RECOGNITION BY THE EMPLOYERS OF THE AMALGAMATED WAS MARKED
BY LONG AND BITTER STRIKES.  IN 1921 THERE HAD BEEN A GENERAL STRIKE IN
NEW YORK CITY WHICH HAD LASTED FOR EIGHT MONTHS AND CAUSED LOSSES OF
MILLIONS OF DOLLARS TO EMPLOYERS AND EMPLOYEES.  A SIMILAR GENERAL
STRIKE IN NEW YORK IN 1924 LASTED FOR SIX WEEKS AND INVOLVED ALL OF THE
500 FIRMS IN THAT AREA AND THEIR 35,000 WORKERS.  THE WAGE LOSS TO THE
WORKERS WAS NEARLY $6,000,000, THE FINANCIAL LOSS TO THE MANUFACTURERS
RAN INTO THE MILLIONS....  THIS COSTLY INDUSTRIAL STRIFE RESULTED
FINALLY IN RECOGNITION OF THE AMALGAMATED BY THE EMPLOYERS....  THE NEW
YORK STRIKE OF 1924 WAS ENDED BY THE ESTABLISHMENT OF A COLLECTIVE
AGREEMENT BETWEEN THE LEADING MANUFACTURERS AND THE AMALGAMATED WHICH
WAS SOON JOINED IN BY OTHER MANUFACTURERS IN THAT AREA.  FACTORIES IN
ROCHESTER, BALTIMORE, BOSTON, CINCINNATI, CLEVELAND, ST. LOUIS AND
PHILADELPHIA RECOGNIZED THE UNION AND ENTERED INTO AGREEMENTS WITH IT.
TODAY THE AMALGAMATED HAS COLLECTIVE AGREEMENTS WITH CLOTHING
MANUFACTURERS AND CONTRACTORS EMPLOYING THE GREATER NUMBER OF THE
CLOTHING WORKERS IN THE UNITED STATES.  THESE COLLECTIVE AGREEMENTS
HAVE BROUGHT PEACE TO THAT PORTION OF THE INDUSTRY THAT HAS ENTERED
SUCH AGREEMENTS....  SINCE THE SIGNING OF THE COLLECTIVE AGREEMENT FOR
THE NEW YORK AREA, THE NEW YORK CLOTHING MANUFACTURERS EXCHANGE, INC.
AND THE AMALGAMATED HAVE HANDLED JOINTLY A TOTAL OF 21,193 COMPLAINTS
AND DISPUTES.  IN ONLY 898 OF THESE CASES, OR SLIGHTLY OVER 4 PER
CENT., WAS A RESORT TO ARBITRATION REQUIRED BECAUSE OF INABILITY TO
AGREE.  OF THESE 898, 30 PER CENT. WERE SETTLED BY THE IMPARTIAL
CHAIRMAN ACTING AS A MEDIATOR; IN THE REMAINDER HE SAT AS AN ARBITRATOR
AND RENDERED A DECISION....  THE PRESIDENT OF THE NEW YORK CLOTHING
MANUFACTURERS EXCHANGE, INC....  HAS STATED THAT THE 'ORGANIZATION OF
COLLECTIVE BARGAINING MACHINERY, THE ESTABLISHMENT OF AN IMPARTIAL
TRIBUNAL, AND THE FOUNDING OF UNEMPLOYMENT INSURANCE ARE THE
OUTSTANDING ACHIEVEMENTS' IN THE INDUSTRY AND THAT THE AMALGAMATED
CLOTHING WORKERS 'HAS BEEN PERHAPS THE LARGEST SINGLE CONTRIBUTING
FACTOR TO THE LASTING PEACE AND HARMONY THAT HAVE CHARACTERIZED THOSE
CLOTHING MARKETS WHERE THE AMALGAMATED CLOTHING WORKERS OF AMERICA WAS
THE OTHER CONTRACTING PARTY TO THE COLLECTIVE AGREEMENT.'" 

WITH RESPECT TO UNFAIR LABOR PRACTICES, THE BOARD FOUND THAT IN THE
SUMMER OF 1935 EMPLOYEES OF RESPONDENT HAD FORMED A LOCAL UNION OF THE
AMALGAMATED CLOTHING WORKERS OF AMERICA AND WERE SOLICITING MEMBERSHIP
THEREIN.  RESPONDENT'S MANAGEMENT "AT ONCE INDICATED HOSTILITY TO THE
UNION ORGANIZATION OF ITS EMPLOYEES AND DECLARED THAT IT WOULD NOT
PERMIT THEM TO JOIN THE AMALGAMATED."  STATEMENTS OF THE PRESIDENT OF
THE RESPONDENT SHOWING HIS ANTAGONISM TO THE UNION WERE QUOTED BY THE
BOARD.  AT ONE TIME HE STATED TO A GROUP OF EMPLOYEES THAT HE WOULD
DISCHARGE EVERY ONE THAT ATTENDED THE UNION MEETING.  SIMILAR
STATEMENTS WERE MADE BY RESPONDENT'S SECRETARY.  RESPONDENT'S
MANAGEMENT "HAS MAINTAINED SURVEILLANCE OVER UNION MEETINGS AND
ACTIVITIES."  THE FINDINGS SET FORTH THE CIRCUMSTANCES OF THE DISCHARGE
OF EMPLOYEES.  THE BOARD CONCLUDED THAT THESE DISCHARGES WERE BECAUSE
OF THE MEMBERSHIP OF THE EMPLOYEES IN THE LABOR ORGANIZATION AND THEIR
ACTIVITIES IN CONNECTION WITH IT.  THE BOARD ALSO FOUND THAT
INTERFERENCE IN THE INDUSTRY WITH THE ACTIVITIES OF EMPLOYEES IN
JOINING AND ASSISTING LABOR ORGANIZATIONS AND THE REFUSAL TO ACCEPT THE
PROCEDURE OF COLLECTIVE BARGAINING HAD LED AND TENDS TO LEAD TO STRIKES
AND OTHER LABOR DISPUTES THAT BURDEN AND OBSTRUCT COMMERCE. 

THE FINDINGS OF THE BOARD BOTH AS TO THE NATURE OF RESPONDENT'S
BUSINESS AND THE CIRCUMSTANCES OF THE DISCHARGE OF ITS EMPLOYEES ARE
SUPPORTED BY THE EVIDENCE. 

FOR THE REASONS STATED IN OUR OPINION IN NATIONAL LABOR RELATIONS
BOARD V. JONES & LAUGHLIN STEEL CORP., ANTE, P. 1, WE HOLD THAT THE
OBJECTIONS RAISED BY RESPONDENT TO THE CONSTRUCTION AND VALIDITY OF THE
NATIONAL LABOR RELATIONS ACT ARE WITHOUT MERIT.  THE DECREES OF THE
CIRCUIT COURT OF APPEALS ARE REVERSED AND THE CAUSES ARE REMANDED FOR
FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

MR. JUSTICE MCREYNOLDS DELIVERED THE FOLLOWING DISSENTING OPINION IN
THE CASES PRECEDING: 

MR. JUSTICE VAN DEVANTER, MR. JUSTICE SUTHERLAND, MR. JUSTICE BUTLER
AND I ARE UNABLE TO AGREE WITH THE DECISIONS JUST ANNOUNCED. 

WE CONCLUDE THAT THESE CAUSES WERE RIGHTLY DECIDED BY THE THREE
CIRCUIT COURTS OF APPEALS AND THAT THEIR JUDGMENTS SHOULD BE AFFIRMED. 
THE OPINIONS THERE GIVEN WITHOUT DISSENT ARE TERSE, WELL-CONSIDERED AND
SOUND.  THEY DISCLOSE THE MEANING ASCRIBED BY EXPERIENCED JUDGES TO
WHAT THIS COURT HAS OFTEN DECLARED, AND ARE SET OUT BELOW IN FULL. 

CONSIDERING THE FAR-REACHING IMPORT OF THESE DECISIONS, THE DEPARTURE
FROM WHAT WE UNDERSTAND HAS BEEN CONSISTENTLY RULED HERE, AND THE
EXTRAORDINARY POWER CONFIRMED TO A BOARD OF THREE,  FN1 THE OBLIGATION
TO PRESENT OUR VIEWS BECOMES PLAIN. 

THE COURT, AS WE THINK, DEPARTS FROM WELL-ESTABLISHED PRINCIPLES
FOLLOWED IN SCHECHTER CORP. V. UNITED STATES, 295 U.S. 495(MAY, 1935)
AND CARTER V. CARTER COAL CO., 298 U.S. 238(MAY, 1936).  UPON THE
AUTHORITY OF THOSE DECISIONS, THE CIRCUIT COURTS OF APPEALS OF THE
FIFTH, SIXTH AND SECOND CIRCUITS IN THE CAUSES NOW BEFORE US HAVE HELD
THE POWER OF CONGRESS UNDER THE COMMERCE CLAUSE DOES NOT EXTEND TO
RELATIONS BETWEEN EMPLOYERS AND THEIR EMPLOYEES ENGAGED IN MANUFACTURE,
AND THEREFORE THE ACT CONFERRED UPON THE NATIONAL LABOR RELATIONS BOARD
NO AUTHORITY IN RESPECT OF MATTERS COVERED BY THE QUESTIONED ORDERS. 
IN FOSTER BROS. MFG. CO. V. NATIONAL LABOR RELATIONS BOARD, 85 F.(2D)
984, THE CIRCUIT COURT OF APPEALS, FOURTH CIRCUIT, HELD THE ACT
INAPPLICABLE TO MANUFACTURE AND EXPRESSED THE VIEW THAT IF SO EXTENDED
IT WOULD BE INVALID.  SIX DISTRICT COURTS, ON THE AUTHORITY OF
SCHECHTER'S AND CARTER'S CASES, HAVE HELD THAT THE BOARD HAS NO
AUTHORITY TO REGULATE RELATIONS BETWEEN EMPLOYERS AND EMPLOYEES ENGAGED
IN LOCAL PRODUCTION.  FNA  NO DECISION OR JUDICIAL OPINION TO THE
CONTRARY HAS BEEN CITED, AND WE FIND NONE.  EVERY CONSIDERATION BROUGHT
FORWARD TO UPHOLD THE ACT BEFORE US WAS APPLICABLE TO SUPPORT THE ACTS
HELD UNCONSTITUTIONAL IN CAUSES DECIDED WITHIN TWO YEARS.  AND THE
LOWER COURTS RIGHTLY DEEMED THEM CONTROLLING. 

BY ITS TERMS THE LABOR ACT EXTENDS TO EMPLOYERS - LARGE AND SMALL -
UNLESS EXCLUDED BY DEFINITION,  FN2  AND DECLARES THAT IF ONE OF THESE
INTERFERES WITH, RESTRAINS, OR COERCES ANY EMPLOYEE REGARDING HIS LABOR
AFFILIATIONS, ETC., THIS SHALL BE REGARDED AS UNFAIR LABOR PRACTICE. 
AND A "LABOR ORGANIZATION" MEANS ANY ORGANIZATION OF ANY KIND OR ANY
AGENCY OR EMPLOYEE REPRESENTATION COMMITTEE OR PLAN WHICH EXISTS FOR
THE PURPOSE IN WHOLE OR IN PART OF DEALING WITH EMPLOYERS CONCERNING
GRIEVANCES, LABOR DISPUTES, WAGES, RATES OF PAY, HOURS OF EMPLOYMENT OR
CONDITIONS OF WORK.  FNB 

THE THREE RESPONDENTS HAPPEN TO BE MANUFACTURING CONCERNS - ONE
LARGE, TWO RELATIVELY SMALL.  THE ACT IS NOW APPLIED TO EACH UPON
GROUNDS COMMON TO ALL.  OBVIOUSLY WHAT IS DETERMINED AS TO THESE
CONCERNS MAY GRAVELY AFFECT A MULTITUDE OF EMPLOYERS WHO ENGAGE IN A
GREAT VARIETY OF PRIVATE ENTERPRISES - MERCANTILE, MANUFACTURING,
PUBLISHING, STOCK-RAISING, MINING, ETC.  IT PUTS INTO THE HANDS OF A
BOARD POWER OF CONTROL OVER PURELY LOCAL INDUSTRY BEYOND ANYTHING
HERETOFORE DEEMED PERMISSIBLE. 

                                 II. 

(NO. 419) CIRCUIT COURT OF APPEALS (FIFTH CIRCUIT) OPINION JUNE 15,
1936, 83 F.(2D) 998 BEFORE FOSTER, SIBLEY, AND HUTCHESON, CIRCUIT
JUDGES 

"PER CURIAM.  THE NATIONAL LABOR RELATIONS BOARD HAS PETITIONED US TO
ENFORCE AN ORDER MADE BY IT, WHICH REQUIRES JONES & LAUGHLIN STEEL
CORPORATION, ORGANIZED UNDER THE LAWS OF PENNSYLVANIA, TO REINSTATE
CERTAIN DISCHARGED EMPLOYEES IN ITS STEEL PLANT IN ALIQUIPPA, PA., AND
TO DO OTHER THINGS IN THAT CONNECTION. 

"THE PETITION MUST BE DENIED, BECAUSE, UNDER THE FACTS FOUND BY THE
BOARD AND SHOWN BY THE EVIDENCE, THE BOARD HAS NO JURISDICTION OVER A
LABOR DISPUTE BETWEEN EMPLOYER AND EMPLOYEES TOUCHING THE DISCHARGE OF
LABORERS IN A STEEL PLANT WHO WERE ENGAGED ONLY IN MANUFACTURE.  THE
CONSTITUTION DOES NOT VEST IN THE FEDERAL GOVERNMENT THE POWER TO
REGULATE THE RELATION AS SUCH OF EMPLOYER AND EMPLOYEE IN PRODUCTION OR
MANUFACTURE. 

"'ONE WHO PRODUCES OR MANUFACTURES A COMMODITY, SUBSEQUENTLY SOLD AND
SHIPPED BY HIM IN INTERSTATE COMMERCE, WHETHER SUCH SALE AND SHIPMENT
WERE ORIGINALLY INTENDED OR NOT, HAS ENGAGED IN TWO DISTINCT AND
SEPARATE ACTIVITIES.  SO FAR AS HE PRODUCES OR MANUFACTURES A
COMMODITY, HIS BUSINESS IS PURELY LOCAL.  SO FAR AS HE SELLS AND SHIPS,
OR CONTRACTS TO SELL AND SHIP, THE COMMODITY TO CUSTOMERS IN ANOTHER
STATE, HE ENGAGES IN INTERSTATE COMMERCE.  IN RESPECT OF THE FORMER, HE
IS SUBJECT ONLY TO REGULATION BY THE STATE; IN RESPECT OF THE LATTER,
TO REGULATION ONLY BY THE FEDERAL GOVERNMENT.  UTAH POWER & L. CO. V.
PFOST, 286 U.S. 165, 182.  PRODUCTION IS NOT COMMERCE BUT A STEP IN
PREPARATION FOR COMMERCE.  CHASSANIOL V. GREENWOOD, 291 U.S. 584-587. 

"'WE HAVE SEEN THAT THE WORD "COMMERCE" IS THE EQUIVALENT OF THE
PHRASE "INTERCOURSE FOR THE PURPOSES OF TRADE."  PLAINLY THE INCIDENTS
LEADING UP TO AND CULMINATING IN THE MINING OF COAL DO NOT CONSTITUTE
SUCH INTERCOURSE.  THE EMPLOYMENT OF MEN, THE FIXING OF THEIR WAGES,
HOURS OF LABOR AND WORKING CONDITIONS, THE BARGAINING IN RESPECT OF
THESE THINGS - WHETHER CARRIED ON SEPARATELY OR COLLECTIVELY - EACH AND
ALL CONSTITUTE INTERCOURSE FOR THE PURPOSES OF PRODUCTION, NOT OF
TRADE.  THE LATTER IS A THING APART FROM THE RELATION OF EMPLOYER AND
EMPLOYEE, WHICH IN ALL PRODUCING OCCUPATIONS IS PURELY LOCAL IN
CHARACTER.  EXTRACTION OF COAL FROM THE MINE IS THE AIM AND THE
COMPLETED RESULT OF LOCAL ACTIVITIES.  COMMERCE IN THE COAL MINED IS
NOT BROUGHT INTO BEING BY FORCE OF THESE ACTIVITIES BUT BY
NEGOTIATIONS, AGREEMENTS, AND CIRCUMSTANCES ENTIRELY APART FROM
PRODUCTION.  MINING BRINGS THE SUBJECT MATTER OF COMMERCE INTO
EXISTENCE.  COMMERCE DISPOSES OF IT.'  CARTER V. CARTER COAL CO., 298
U.S. 238, DECIDED MAY 18, 1936. 

"THAT THE EMPLOYER HAS A VERY LARGE BUSINESS, THE INTERRUPTION OF
WHICH BY A STRIKE OF EMPLOYEES WHICH MIGHT HAPPEN, AND THAT IN
CONSEQUENCE OF SUCH STRIKE PRODUCTION MIGHT BE STOPPED AND INTERSTATE
COMMERCE IN THE PRODUCTS AFFECTED, DOES NOT MAKE THE REGULATION OF THE
RELATION JUSTIFIED UNDER THE COMMERCE POWER OF CONGRESS, BECAUSE THE
POSSIBLE EFFECT ON INTERSTATE COMMERCE IS TOO REMOTE TO WARRANT FEDERAL
INVASION OF THE STATE'S RIGHT TO REGULATE THE EMPLOYER-EMPLOYEE
RELATION.  NOR IS IT IMPORTANT THAT THE EMPLOYER IMPORTS PART OF HIS
RAW MATERIALS IN INTERSTATE COMMERCE AND SELLS AND EXPORTS A LARGE PART
OF HIS PRODUCT IN INTERSTATE COMMERCE, WHICH IMPORTS AND EXPORTS WOULD
POSSIBLY BE STOPPED BY A POSSIBLE STRIKE.  THE EMPLOYERS' ENTIRE
BUSINESS THUS CONNECTED TOGETHER DOES NOT, AS RESPECTS FEDERAL POWER,
MAKE A CASE DIFFERENT FROM THAT IN WHICH IMPORTATION OF MATERIALS,
MANUFACTURE OF THEM, AND SALE AND EXPORT OF THE PRODUCT ARE CONDUCTED
BY THREE PERSONS.  THE EMPLOYER HERE BY DOING ALL THREE THINGS DOES NOT
ALTER THE RESPECTIVE CONSTITUTIONAL SPHERES OF THE FEDERAL AND STATE
GOVERNMENTS.  THE MAKING AND FABRICATION OF STEEL BY JONES & LAUGHLIN
STEEL CORPORATION IS PRODUCTION REGULABLE BY THE STATE OF PENNSYLVANIA,
NOTWITHSTANDING THE CORPORATION ALSO ENGAGES IN INTERSTATE COMMERCE
REGULABLE BY CONGRESS IN BRINGING IN ITS RAW MATERIALS AND AGAIN IN
SELLING AND DELIVERING ITS PRODUCTS.  NO SPECIFIC PRESENT INTENT
APPEARS TO IMPEDE OR DESTROY INTERSTATE COMMERCE BY MEANS OF A STRIKE
IN A MANUFACTURING PLANT, OR OTHER LIKE DIRECT OBSTRUCTION TO OR BURDEN
ON INTERSTATE COMMERCE.  THE ORDER WE ARE ASKED TO ENFORCE IS NOT SHOWN
TO BE ONE AUTHORIZED TO BE MADE UNDER THE AUTHORITY OF CONGRESS. 
CARTER V. CARTER COAL CO., SUPRA.    "THE PETITION IS DENIED." 

 III. 

(NOS. 420-421) CIRCUIT COURT OF APPEALS (SIXTH CIRCUIT) OPINION JUNE
30, 1936, 85 F.(2D) 391 BEFORE MOORMAN, HICKS, AND SIMONS, CIRCUIT
JUDGES. 

"PER CURIAM.  THE NATIONAL LABOR RELATIONS BOARD HAS FILED A PETITION
IN THIS COURT TO ENFORCE AN ORDER ISSUED BY IT IN PROCEEDINGS WHICH IT
INSTITUTED AGAINST THE FRUEHAUF TRAILER COMPANY.  THE ORDER DIRECTS THE
TRAILER COMPANY TO CEASE AND DESIST FROM DISCHARGING OR THREATENING TO
DISCHARGE ANY OF ITS EMPLOYEES BECAUSE OF THEIR ACTIVITIES IN
CONNECTION WITH THE UNITED AUTOMOBILE WORKERS FEDERAL LABOR UNION NO.
19,375, TO CEASE DISCOURAGING ITS EMPLOYEES FROM BECOMING MEMBERS OF
THAT UNION, TO OFFER TO CERTAIN OF ITS FORMER EMPLOYEES IMMEDIATE AND
FULL REINSTATEMENT IN THEIR FORMER POSITIONS WITHOUT PREJUDICE TO THEIR
SENIORITY RIGHTS, TO MAKE SUCH EMPLOYEES WHOLE FOR ANY LOSSES OF PAY
THAT THEY HAVE SUFFERED BY REASON OF THEIR DISCHARGE BY PAYING THEM
WHAT THEY WOULD HAVE EARNED AS WAGES FROM THE DATES OF THEIR
DISCHARGES, AND TO POST NOTICES THROUGHOUT ITS DETROIT PLANT, IN
CONSPICUOUS PLACES, STATING THAT IT HAS CEASED AND DESISTED FROM
DISCHARGING OR THREATENING TO DISCHARGE ITS EMPLOYEES FOR JOINING THE
UNITED AUTOMOBILE WORKERS FEDERAL LABOR UNION NO. 19,375.  THE FRUEHAUF
TRAILER COMPANY HAS FILED ITS PETITION SEEKING A REVIEW OF THE ORDER
AND PRAYING THAT THE COURT SET IT ASIDE.  THE RECORD OF THE PROCEEDING
BEFORE THE LABOR BOARD HAS BEEN FILED AND THE TWO PETITIONS HAVE BEEN
HEARD TOGETHER IN THIS COURT. 

"THE FRUEHAUF TRAILER COMPANY IS A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF MICHIGAN AND IS ENGAGED IN THE
MANUFACTURE, ASSEMBLY, AND SALE OF AUTOMOBILE TRAILERS AT ITS PLANT IN
DETROIT, MICH.  THE MATERIAL AND PARTS USED IN THE MANUFACTURE AND
PRODUCTION OF THE TRAILERS ARE SHIPPED TO THE PLANT.  AFTER THE
TRAILERS ARE MANUFACTURED, MANY OF THEM ARE SHIPPED TO OTHER STATES FOR
SALE AND USE.  THE ORDER IN QUESTION UNDERTAKES TO REGULATE AND CONTROL
THE TRAILER COMPANY'S RELATIONS AND DEALINGS WITH ITS EMPLOYEES ENGAGED
IN THE PRODUCTION AND MANUFACTURE OF TRAILERS AT THE COMPANY'S PLANT IN
DETROIT AND DOES NOT DIRECTLY AFFECT ANY OF THE ACTIVITIES OF THE
TRAILER COMPANY IN THE PURCHASING AND TRANSPORTING TO ITS PLANT OF
MATERIALS AND PARTS FOR THE MANUFACTURE AND PRODUCTION OF TRAILERS OR
IN THE SHIPPING OR SELLING OF SUCH TRAILERS AFTER THEY ARE
MANUFACTURED.  IT WAS ISSUED UNDER THE AUTHORITY OF THE ACT OF CONGRESS
OF JULY 5, 1935, KNOWN AS THE NATIONAL LABOR RELATIONS ACT.  (29
U.S.C.A., SEC. 151 ET SEQ.)  THE AUTHORITY FOR THE ACT IS CLAIMED UNDER
THE COMMERCE CLAUSE OF THE CONSTITUTION.  SINCE THE ORDER IS DIRECTED
TO THE CONTROL AND REGULATION OF THE RELATIONS BETWEEN THE TRAILER
COMPANY AND ITS EMPLOYEES IN RESPECT TO THEIR ACTIVITIES IN THE
MANUFACTURE AND PRODUCTION OF TRAILERS AND DOES NOT DIRECTLY AFFECT ANY
PHASE OF ANY INTERSTATE COMMERCE IN WHICH THE TRAILER COMPANY MAY BE
ENGAGED, AND SINCE, UNDER THE RULING OF CARTER V. CARTER COAL COMPANY,
298 U.S. 238, THE CONGRESS HAS NO AUTHORITY OR POWER TO REGULATE OR
CONTROL SUCH RELATIONS BETWEEN THE TRAILER COMPANY AND ITS EMPLOYEES,
THE NATIONAL LABOR RELATIONS BOARD WAS WITHOUT AUTHORITY TO ISSUE THE
ORDER.  SEE NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL
CORPORATION, 83 F.(2D) 998(C.C.A. 5), DECIDED JUNE 15, 1936. 

"THE PETITION OF THE BOARD IS ACCORDINGLY DISMISSED AND THE ORDER IS
SET ASIDE." 

  IV. 

(NOS. 422-423) CIRCUIT COURT OF APPEALS (SECOND CIRCUIT) OPINION JULY
13, 1936, 85 F.(2D) 1 BEFORE MANTON, SWAN, AND A. N. HAND, CIRCUIT
JUDGES. 

"PER CURIAM.  THE RESPONDENT, A VIRGINIA CORPORATION, IS A
MANUFACTURER OF MEN'S CLOTHING WITH ITS PRINCIPAL OFFICE AND ITS
FACTORY IN RICHMOND, VA.  PRACTICALLY ALL THE RAW MATERIALS USED ARE
BROUGHT FROM OTHER STATES DOWN INTO VIRGINIA WHERE RESPONDENT
MANUFACTURES THEM INTO MEN'S CLOTHING.  ABOUT 83% OF THE MANUFACTURED
PRODUCTS ARE SOLD F.O.B. RICHMOND, TO CUSTOMERS LOCATED IN STATES OTHER
THAN VIRGINIA. 

"TWO SETS OF CHARGES WERE FILED WITH PETITIONER'S LOCAL REGIONAL
DIRECTOR BY THE AMALGAMATED CLOTHING WORKERS OF AMERICA, A LABOR UNION
OF WORKERS IN THE MEN'S CLOTHING INDUSTRY, IN WHICH IT WAS ALLEGED THAT
THE RESPONDENT VIOLATED THE NATIONAL LABOR RELATIONS ACT (29 U.S.C.A.,
SEC. 151 ET SEQ.) BY DISCHARGING FROM ITS EMPLOY AND DISCRIMINATING
AGAINST, 29 OUT OF 800 OF ITS EMPLOYEES, BECAUSE THEY HAD ENGAGED IN
UNION ACTIVITIES.  THE BOARD FILED COMPLAINT UNDER SEC. 10(B) OF THE
ACT (29 U.S.C.A., SEC. 160(B)) AND AFTER A HEARING RESPONDENT WAS FOUND
TO HAVE VIOLATED THE ACT AND WAS ORDERED TO CEASE AND DESIST FROM THE
UNFAIR LABOR PRACTICES. 

"PETITIONER'S THEORY IS THAT THE RESPONDENT IS ENGAGED IN INTERSTATE
COMMERCE BECAUSE OF THE SHIPMENT OF RAW MATERIALS TO IT FROM OTHER
STATES AND THE SHIPMENT OF ITS FINISHED PRODUCTS TO OTHER STATES, AND,
IN ADDITION, THAT THE FLOW OF COMMERCE DOCTRINE, AS EXEMPLIFIED IN
SWIFT & CO. V. UNITED STATES, 196 U.S. 375, BRINGS THIS MANUFACTURER
WITHIN THE FEDERAL POWER TO REGULATE COMMERCE.  RESPONDENT CONTENDS
THAT THE NATIONAL LABOR RELATIONS ACT AS APPLIED TO IT, IS
UNCONSTITUTIONAL AND THEREFORE INVALID AND THAT THE ATTEMPT TO ENFORCE
ITS PROVISIONS AGAINST IT IS ILLEGAL. 

"IT IS SHOWN THAT THE ALLEGED UNFAIR LABOR PRACTICES COMPLAINED OF
OCCURRED IN THE MANUFACTURE OF CLOTHING IN RICHMOND, VA.  NONE OF THE
WORKERS INVOLVED HAD TO DO WITH THE TRANSPORTATION OF THE CLOTHING
AFTER ITS MANUFACTURE.  THEY WERE ENGAGED IN VARIOUS OPERATIONS IN THE
RICHMOND FACTORY. 

"THE RELATIONS BETWEEN THE EMPLOYER AND ITS EMPLOYEES IN THIS
MANUFACTURING INDUSTRY WERE MERELY INCIDENTS OF PRODUCTION.  IN ITS
MANUFACTURING, RESPONDENT WAS IN NO WAY ENGAGED IN INTERSTATE COMMERCE,
NOR DID ITS LABOR PRACTICES SO DIRECTLY AFFECT INTERSTATE COMMERCE AS
TO COME WITHIN THE FEDERAL COMMERCE POWER.  CARTER V. CARTER COAL CO.,
298 U.S. 238; SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495. 
NO AUTHORITY WARRANTS THE CONCLUSION THAT THE POWERS OF THE FEDERAL
GOVERNMENT PERMIT THE REGULATION OF THE DEALINGS BETWEEN EMPLOYERS OR
EMPLOYEES WHEN ENGAGED IN THE PURELY LOCAL BUSINESS OF MANUFACTURE. 

"THEREFORE THE ORDERS TO CEASE AND DESIST MAY NOT BE ENFORCED. 

"PETITIONS DENIED." 

                          V. 

IN EACH CAUSE THE LABOR BOARD FORMULATED AND THEN SUSTAINED A CHARGE
OF UNFAIR LABOR PRACTICES TOWARDS PERSONS EMPLOYED ONLY IN PRODUCTION. 
IT ORDERED RESTORATION OF DISCHARGED EMPLOYEES TO FORMER POSITIONS WITH
PAYMENT FOR LOSSES SUSTAINED.  THESE ORDERS WERE DECLARED INVALID BELOW
UPON THE GROUND THAT RESPONDENTS WHILE CARRYING ON PRODUCTION
OPERATIONS WERE NOT THEREBY ENGAGING IN INTERSTATE COMMERCE; THAT LABOR
PRACTICES IN THE COURSE OF SUCH OPERATIONS DID NOT DIRECTLY AFFECT
INTERSTATE COMMERCE; CONSEQUENTLY RESPONDENTS' ACTIONS DID NOT COME
WITHIN CONGRESSIONAL POWER. 

RESPONDENT IN NO. 419 IS A LARGE, INTEGRATED MANUFACTURER OF IRON AND
STEEL PRODUCTS - THE FOURTH LARGEST IN THE UNITED STATES.  IT HAS TWO
PRODUCTION PLANTS IN PENNSYLVANIA WHERE RAW MATERIALS BROUGHT FROM
POINTS OUTSIDE THE STATE ARE CONVERTED INTO FINISHED PRODUCTS, WHICH
ARE THEREAFTER DISTRIBUTED IN INTERSTATE COMMERCE THROUGHOUT MANY
STATES.  THE CORPORATION HAS ASSETS AMOUNTING TO $180,000,000, GROSS
INCOME $47,000,000, AND EMPLOYS 22,000 PEOPLE - 10,000 IN THE ALIQUIPPA
PLANT WHERE THE COMPLAINING EMPLOYEES WORKED.  SO FAR AS THEY RELATE TO
ESSENTIAL PRINCIPLES PRESENTLY IMPORTANT, THE ACTIVITIES OF THIS
CORPORATION, WHILE LARGE, DO NOT DIFFER MATERIALLY FROM THOSE OF THE
OTHER RESPONDENTS AND VERY MANY SMALL PRODUCERS AND DISTRIBUTORS.  IT
HAS ATTAINED GREAT SIZE; OCCUPIES AN IMPORTANT PLACE IN BUSINESS; OWNS
AND OPERATES MINES OF ORE, COAL, AND LIME-STONE OUTSIDE PENNSYLVANIA,
THE OUTPUT OF WHICH, WITH OTHER RAW MATERIAL, MOVES TO THE PRODUCTION
PLANTS.  AT THE PLANTS THIS MOVEMENT ENDS.  HAVING COME TO REST THIS
MATERIAL REMAINS IN WAREHOUSES, STORAGE YARDS, ETC., OFTEN FOR MONTHS,
UNTIL THE PROCESS OF MANUFACTURE BEGINS.  AFTER THIS HAS BEEN
COMPLETED, THE FINISHED PRODUCTS GO INTO INTERSTATE COMMERCE.  THE
DISCHARGED EMPLOYEES LABORED ONLY IN THE MANUFACTURING DEPARTMENT. 
THEY TOOK NO PART IN THE TRANSPORTATION TO OR AWAY FROM THE PLANT; NOR
DID THEY PARTICIPATE IN ANY ACTIVITY WHICH PRECEDED OR FOLLOWED
MANUFACTURE. 

OUR CONCERN IS WITH THOSE ACTIVITIES WHICH ARE COMMON TO THE THREE
ENTERPRISES.  SUCH CIRCUMSTANCES AS ARE MERELY FORTUITOUS - SIZE,
CHARACTER OF PRODUCTS, ETC. - MAY BE PUT ON ONE SIDE.  THE WIDE SWEEP
OF THE STATUTE WILL MORE READILY APPEAR IF CONSIDERATION BE GIVEN TO
THE BOARD'S PROCEEDINGS AGAINST THE SMALLEST AND RELATIVELY LEAST
IMPORTANT - THE CLOTHING COMPANY.  IF THE ACT APPLIES TO THE RELATIONS
OF THAT COMPANY TO EMPLOYEES IN PRODUCTION, OF COURSE IT APPLIES TO THE
LARGER RESPONDENTS WITH LIKE BUSINESS ELEMENTS ALTHOUGH THE AFFAIRS OF
THE LATTER MAY PRESENT OTHER CHARACTERISTICS.  THOUGH DIFFERING IN SOME
RESPECTS, ALL RESPONDENTS PROCURE RAW MATERIALS OUTSIDE THE STATE WHERE
THEY MANUFACTURE, FABRICATE WITHIN AND THEN SHIP BEYOND THE STATE. 

IN NOS. 420-21 THE RESPONDENT, MICHIGAN CORPORATION, MANUFACTURES
COMMERCIAL TRAILERS FOR AUTOMOBILES FROM RAW MATERIALS BROUGHT FROM
OUTSIDE THAT STATE, AND THEREAFTER SELLS THESE IN MANY STATES.  IT HAS
A SINGLE MANUFACTURING PLANT AT DETROIT AND ANNUAL RECEIPTS AROUND
$3,000,000; 900 PEOPLE ARE EMPLOYED. 

IN NOS. 422-23 THE RESPONDENT IS A VIRGINIA CORPORATION ENGAGED IN
MANUFACTURING AND DISTRIBUTING MEN'S CLOTHING.  IT HAS A SINGLE PLANT
AND CHIEF OFFICE AT RICHMOND, ANNUAL BUSINESS AMOUNTING PERHAPS TO
$2,000,000, EMPLOYS 800, BRINGS IN ALMOST ALL RAW MATERIAL FROM OTHER
STATES AND SHIPS THE OUTPUT IN INTERSTATE COMMERCE.  THERE ARE SOME
3,300 SIMILAR PLANTS FOR MANUFACTURING CLOTHING IN THE UNITED STATES,
WHICH TOGETHER EMPLOY 150,000 PERSONS AND ANNUALLY PUT OUT PRODUCTS
WORTH $800,000,000. 

                                 VI. 

THE CLOTHING COMPANY IS A TYPICAL SMALL MANUFACTURING CONCERN WHICH
PRODUCES LESS THAN ONE-HALF OF ONE PER CENT OF THE MEN'S CLOTHING
PRODUCED IN THE UNITED STATES AND EMPLOYS 800 OF THE 150,000 WORKMEN
ENGAGED THEREIN.  IF CLOSED TODAY, THE ULTIMATE EFFECT ON COMMERCE IN
CLOTHING OBVIOUSLY WOULD BE NEGLIGIBLE.  IT STANDS ALONE, IS NOT
SEEKING TO ACQUIRE A MONOPOLY OR TO RESTRAIN TRADE.  THERE IS NO
EVIDENCE OF A STRIKE BY ITS EMPLOYEES AT ANY TIME OR THAT ONE IS NOW
THREATENED, AND NOTHING TO INDICATE THE PROBABLE RESULT IF ONE SHOULD
OCCUR. 

SOME ACCOUNT OF THE LABOR BOARD'S PROCEEDINGS AGAINST THIS COMPANY
WILL INDICATE THE AMBIT OF THE ACT AS PRESENTLY CONSTRUED. 

SEPTEMBER 28, 1935, THE AMALGAMATED CLOTHING WORKERS OF AMERICA,
PURPORTING TO ACT UNDER SEC. 10(B) OF THE NATIONAL RELATIONS ACT,  FN3
FILED WITH THE BOARD A "CHARGE" STATING THAT THE CLOTHING COMPANY HAD
ENGAGED IN UNFAIR LABOR PRACTICES WITHIN THE MEANING OF THE ACT - SEC.
8(1)(3) - IN THAT IT HAD, ON STATED DAYS IN AUGUST AND SEPTEMBER, 1935,
UNJUSTIFIABLY DISCHARGED, DEMOTED OR DISCRIMINATED AGAINST SOME TWENTY
NAMED MEMBERS OF THAT UNION AND, IN OTHER WAYS, HAD RESTRAINED,
INTERFERED WITH AND COERCED EMPLOYEES IN THE EXERCISE OF THEIR RIGHT OF
FREE CHOICE OF REPRESENTATIVES FOR COLLECTIVE BARGAINING.  AND FURTHER
"THAT SAID LABOR PRACTICES ARE UNFAIR LABOR PRACTICES AFFECTING
COMMERCE WITHIN THE MEANING OF SAID ACT." 

THIS "CHARGE" CONTAINED NO DESCRIPTION OF THE COMPANY'S BUSINESS, NO
WORD CONCERNING ANY STRIKE AGAINST IT PAST, PRESENT OR THREATENED.  THE
NUMBER OF PERSONS EMPLOYED OR HOW MANY OF THESE HAD JOINED THE UNION IS
NOT DISCLOSED. 

THEREUPON THE BOARD ISSUED A "COMPLAINT" WHICH RECITED THE
PARTICULARS OF THE "CHARGE," ALLEGED INCORPORATION OF THE COMPANY IN
VIRGINIA, AND OWNERSHIP OF A PLANT AT RICHMOND WHERE IT IS CONTINUOUSLY
ENGAGED IN THE "PRODUCTION, SALE AND DISTRIBUTION OF MEN'S CLOTHING";
THAT MATERIAL IS BROUGHT FROM OTHER STATES AND MANUFACTURED INTO
CLOTHING, WHICH IS SOLD AND SHIPPED TO MANY STATES, ETC., - "ALL OF
AFORESAID CONSTITUTING A CONTINUOUS FLOW OF COMMERCE AMONG THE SEVERAL
STATES."  ALSO THAT WHILE OPERATING THE RICHMOND PLANT THE CLOTHING
COMPANY DISCHARGED, DEMOTED, LAID OFF OR DISCRIMINATED AGAINST SOME
TWENTY PERSONS "EMPLOYED IN PRODUCTION AT THE SAID PLANT ...  FOR THE
REASON THAT ALL OF THE SAID EMPLOYEES, AND EACH OF THEM, JOINED AND
ASSISTED A LABOR ORGANIZATION KNOWN AS THE AMALGAMATED CLOTHING WORKERS
OF AMERICA, AND ENGAGED IN CONCERTED ACTIVITIES WITH OTHER EMPLOYEES
FOR THE PURPOSE OF COLLECTIVE BARGAINING AND OTHER MUTUAL AID AND
PROTECTION," ETC.  FURTHER THAT THE COMPANY CIRCULATED AMONG ITS
EMPLOYEES AND UNDERTOOK TO COERCE THEM TO SIGN A WRITING EXPRESSING
SATISFACTION WITH CONDITIONS; INDUCED SOME MEMBERS OF THE UNION TO
WITHDRAW; DID OTHER SIMILAR THINGS, ETC. - ALL OF WHICH AMOUNTED TO
UNFAIR LABOR PRACTICES AFFECTING COMMERCE WITHIN THE MEANING OF SEC.
8(1)(3)(4)  FN4  AND SEC. 2(6)(7)  FN5  OF THE LABOR ACT.  "THE
AFORESAID UNFAIR LABOR PRACTICES OCCUR IN COMMERCE AMONG THE SEVERAL
STATES, AND ON THE BASIS OF EXPERIENCE IN THE AFORESAID PLANT AND
OTHERS IN THE SAME AND OTHER INDUSTRIES, BURDEN AND OBSTRUCT SUCH
COMMERCE AND THE FREE FLOW THEREOF AND HAVE LED AND TEND TO LEAD TO
LABOR DISPUTES BURDENING AND OBSTRUCTING SUCH COMMERCE AND THE FREE
FLOW THEREOF." 

THE COMPLAINT SAYS NOTHING CONCERNING ANY STRIKE AGAINST THE CLOTHING
COMPANY PAST, PRESENT OR THREATENED; THERE IS NO ALLEGATION CONCERNING
THE NUMBER OF PERSONS EMPLOYED, HOW MANY JOINED THE UNION, OR THE VALUE
OF THE OUTPUT.    THE RESPONDENT FILED A SPECIAL APPEARANCE OBJECTING
TO THE BOARD'S JURISDICTION, WHICH WAS OVERRULED; ALSO AN ANSWER
ADMITTING THE DISCHARGE OF CERTAIN EMPLOYEES, BUT OTHERWISE IT
GENERALLY DENIED THE ALLEGATIONS OF THE "COMPLAINT." 

THEREUPON THE BOARD DEMANDED ACCESS TO THE COMPANY'S PRIVATE RECORDS
OF ACCOUNTS, DISCLOSURE OF THE AMOUNT OF CAPITAL INVESTED BY ITS
PRIVATE OWNERS, THE NAMES OF ALL OF ITS EMPLOYEES, ITS PAYROLLS, THE
AMOUNTS AND CHARACTER OF ALL PURCHASES AND FROM WHOM MADE, THE AMOUNTS
OF SALES AND TO WHOM MADE, INCLUDING THE NUMBER AND KIND OF UNITS, THE
NUMBER OF EMPLOYEES IN THE PLANT DURING EIGHT YEARS, THE NAMES AND
ADDRESSES OF THE DIRECTORS AND OFFICERS OF THE COMPANY, THE NAMES AND
ADDRESSES OF ITS SALESMEN, THE STOCK OWNERSHIP OF THE COMPANY, THE
AFFILIATION, IF ANY, WITH OTHER COMPANIES, AND THE FORMER OCCUPATIONS
AND BUSINESSES OF ITS STOCKHOLDERS. 

DURING HEARINGS HELD AT RICHMOND AND WASHINGTON, UNFETTERED BY RULES
OF EVIDENCE, IT RECEIVED A MASS OF TESTIMONY - LARGELY IRRELEVANT. 
MUCH RELATED TO THE CHARACTER OF RESPONDENT'S BUSINESS, GENERAL METHODS
USED IN THE MEN'S CLOTHING INDUSTRY, THE NUMBERS EMPLOYED AND THE
GENERAL EFFECT OF STRIKES THEREIN.  THE CIRCUMSTANCES ATTENDING THE
DISCHARGE OR DEMOTION OF THE SPECIFIED EMPLOYEES WERE BROUGHT OUT. 

FOLLOWING THIS THE BOARD FOUND - 

THE MEN'S CLOTHING INDUSTRY OF THE UNITED STATES RANKS SIXTEENTH IN
THE NUMBER OF WAGE EARNERS EMPLOYED, WITH MORE THAN 3,000 FIRMS AND
150,000 WORKERS ENGAGED.  THE STEPS IN THE TYPICAL PROCESS OF
MANUFACTURE ARE DESCRIBED.  RAW MATERIAL IS BROUGHT IN FROM MANY
STATES, AND AFTER FABRICATION THE GARMENTS ARE SOLD AND DELIVERED
THROUGH CANVASSERS AND RETAILERS.  "THE MEN'S CLOTHING INDUSTRY IS THUS
AN INDUSTRY WHICH IS NEARLY ENTIRELY DEPENDENT IN ITS OPERATIONS UPON
PURCHASES AND SALES IN INTERSTATE COMMERCE AND UPON INTERSTATE
TRANSPORTATION." 

THE AMALGAMATED CLOTHING WORKERS OF AMERICA IS A LABOR ORGANIZATION
COMPOSED OF OVER 125,000 MEN AND WOMEN EMPLOYED IN MAKING CLOTHING. 
MEMBERS ARE ORGANIZED IN LOCAL UNIONS.  BEFORE RECOGNITION OF THIS
UNION BY EMPLOYERS LONG AND BITTER STRIKES OCCURRED, SOME OF WHICH ARE
DESCRIBED.  THE UNION HAS STRIVEN CONSISTENTLY TO IMPROVE THE GENERAL
ECONOMIC AND SOCIAL CONDITIONS OF MEMBERS.  BENEFITS THAT FLOW FROM
RECOGNIZING AND CO-OPERATING WITH IT ARE REALIZED BY MANUFACTURERS. 

DESCRIPTION IS GIVEN OF THE CLOTHING COMPANY'S OPERATIONS, THE
SOURCES OF ITS RAW MATERIAL (NEARLY ALL OUTSIDE VIRGINIA), AND THE
METHOD USED TO DISPOSE OF ITS OUTPUT.  EIGHTY-TWO PER CENT IS SOLD TO
CUSTOMERS BEYOND VIRGINIA.  IT IS AMONG THE FIFTY LARGEST FIRMS IN THE
INDUSTRY, AND AMONG THE TEN OF THAT GROUP PAYING THE LOWEST AVERAGE
WAGE. 

IN THE SUMMER OF 1935 THE EMPLOYEES AT THE RICHMOND PLANT FORMED A
LOCAL OF THE AMALGAMATED CLOTHING WORKERS AND SOLICITED MEMBERSHIPS. 
THE MANAGEMENT AT ONCE INDICATED OPPOSITION AND DECLARED IT WOULD NOT
PERMIT EMPLOYEES TO JOIN.  HOSTILE ACTS AND THE CIRCUMSTANCES OF THE
DISCHARGE OR DEMOTION OF COMPLAINING EMPLOYEES ARE DESCRIBED.  IT IS
SAID ALL WERE DISCHARGED OR DEMOTED BECAUSE OF UNION MEMBERSHIP.  AND
FURTHER THAT "INTERFERENCE BY EMPLOYERS IN THE MEN'S CLOTHING INDUSTRY
WITH THE ACTIVITIES OF EMPLOYEES IN JOINING AND ASSISTING LABOR
ORGANIZATIONS AND THEIR REFUSAL TO ACCEPT THE PROCEDURE OF COLLECTIVE
BARGAINING HAS LED AND TENDS TO LEAD TO STRIKES AND OTHER LABOR
DISPUTES THAT BURDEN AND OBSTRUCT COMMERCE AND THE FREE FLOW THEREOF. 
IN THOSE CASES WHERE THE EMPLOYEES HAVE BEEN PERMITTED TO ORGANIZE
FREELY AND THE EMPLOYERS HAVE BEEN WILLING TO BARGAIN COLLECTIVELY,
STRIKES AND INDUSTRIAL UNREST HAVE GRADUALLY DISAPPEARED, AS SHOWN IN
FINDING 19.  BUT WHERE THE EMPLOYER HAS TAKEN THE CONTRARY POSITION,
STRIKES HAVE ENSUED THAT HAVE RESULTED IN SUBSTANTIAL OR TOTAL
CESSATION OF PRODUCTION IN THE FACTORIES INVOLVED AND OBSTRUCTION TO
AND BURDEN UPON THE FLOW OF RAW MATERIALS AND FINISHED GARMENTS IN
INTERSTATE COMMERCE." 

THE NUMBER OF EMPLOYEES WHO JOINED THE UNION DOES NOT APPEAR; THE
GENERAL ATTITUDE OF EMPLOYEES TOWARDS THE UNION OR THE COMPANY IS NOT
DISCLOSED; THE TERMS OF EMPLOYMENT ARE NOT STATED - WHETHER AT WILL, BY
THE DAY OR BY THE MONTH.  WHAT THE LOCAL CHAPTER WAS ESPECIALLY SEEKING
AT THE TIME WE DO NOT KNOW. 

IT DOES NOT APPEAR THAT, EITHER PRIOR OR SUBSEQUENT TO THE
"COMPLAINT," THERE HAS BEEN ANY STRIKE, DISORDER OR INDUSTRIAL STRIFE
AT RESPONDENT'S FACTORY, OR ANY INTERFERENCE WITH OR STOPPAGE OF
PRODUCTION OR SHIPMENT OF ITS MERCHANDISE.  NOR THAT ALLEGED UNFAIR
LABOR PRACTICES AT ITS PLANT HAD MATERIALLY AFFECTED MANUFACTURE, SALE
OR DISTRIBUTION; OR MATERIALLY AFFECTED, BURDENED OR OBSTRUCTED THE
FLOW OF PRODUCTS; OR AFFECTED, BURDENED OR OBSTRUCTED THE FLOW OF
INTERSTATE COMMERCE, OR TENDED TO DO SO. 

THE BOARD CONCLUDED THAT THE CLOTHING COMPANY HAD DISCRIMINATED IN
RESPECT TO TENURE AND EMPLOYMENT AND THEREBY HAD DISCOURAGED MEMBERSHIP
IN THE UNION; THAT IT HAD INTERFERED WITH, RESTRAINED AND COERCED ITS
EMPLOYEES IN VIOLATION OF RIGHTS GUARANTEED BY SEC. 7 OF THE NATIONAL
LABOR RELATIONS ACT; THAT THESE ACTS OCCURRED IN THE COURSE AND CONDUCT
OF COMMERCE AMONG THE STATES, IMMEDIATELY AFFECT EMPLOYEES ENGAGED IN
THE COURSE AND CONDUCT OF INTERSTATE COMMERCE, AND TEND TO LEAD TO
LABOR DISPUTES BURDENING AND OBSTRUCTING SUCH COMMERCE AND THE FREE
FLOW THEREOF. 

AN ORDER FOLLOWED, MARCH 28, 1936, WHICH COMMANDED IMMEDIATE
REINSTATEMENT OF EIGHT DISCHARGED EMPLOYEES AND PAYMENT OF THEIR
LOSSES; ALSO THAT THE COMPANY SHOULD CEASE AND DESIST FROM DISCHARGING
OR DISCRIMINATING AGAINST EMPLOYEES BECAUSE OF CONNECTIONS WITH THE
UNION, SHOULD POST NOTICES, ETC.  ON THE SAME DAY THE BOARD FILED A
PETITION ASKING ENFORCEMENT OF THE ORDER IN THE UNITED STATES CIRCUIT
COURT OF APPEALS (SECOND CIRCUIT) AT NEW YORK, WHICH WAS DENIED JULY
13, 1936. 

                                 VII. 

THE PRECISE QUESTION FOR US TO DETERMINE IS WHETHER IN THE
CIRCUMSTANCES DISCLOSED CONGRESS HAS POWER TO AUTHORIZE WHAT THE LABOR
BOARD COMMANDED THE RESPONDENTS TO DO.  STATED OTHERWISE, IN THE
CIRCUMSTANCES HERE EXISTING COULD CONGRESS BY STATUTE DIRECT WHAT THE
BOARD HAS ORDERED?  GENERAL DISQUISITIONS CONCERNING THE ENACTMENT ARE
OF MINOR, IF ANY, IMPORTANCE.  CIRCUMSTANCES NOT TREATED AS ESSENTIAL
TO THE EXERCISE OF POWER BY THE BOARD MAY, OF COURSE, BE DISREGARDED. 
THE RECORD IN NOS. 422-23 - A TYPICAL CASE - PLAINLY PRESENTS THESE
ESSENTIALS AND WE MAY PROPERLY BASE FURTHER DISCUSSION UPON THE
CIRCUMSTANCES THERE DISCLOSED. 

A RELATIVELY SMALL CONCERN CAUSED RAW MATERIAL TO BE SHIPPED TO ITS
PLANT AT RICHMOND, VIRGINIA, CONVERTED THIS INTO CLOTHING, AND
THEREAFTER SHIPPED THE PRODUCT TO POINTS OUTSIDE THE STATE.  A LABOR
UNION SOUGHT MEMBERS AMONG THE EMPLOYEES AT THE PLANT AND OBTAINED
SOME.  THE COMPANY'S MANAGEMENT OPPOSED THIS EFFORT, AND IN ORDER TO
DISCOURAGE IT DISCHARGED EIGHT WHO HAD BECOME MEMBERS.  THE BUSINESS OF
THE COMPANY IS SO SMALL THAT TO CLOSE ITS FACTORY WOULD HAVE NO DIRECT
OR MATERIAL EFFECT UPON THE VOLUME OF INTERSTATE COMMERCE IN CLOTHING. 
THE NUMBER OF OPERATIVES WHO JOINED THE UNION IS NOT DISCLOSED; THE
WISHES OF OTHER EMPLOYEES ARE NOT SHOWN; PROBABILITY OF A STRIKE IS NOT
FOUND. 

THE ARGUMENT IN SUPPORT OF THE BOARD AFFIRMS:  "THUS THE VALIDITY OF
ANY SPECIFIC APPLICATION OF THE PREVENTIVE MEASURES OF THIS ACT DEPENDS
UPON WHETHER INDUSTRIAL STRIFE RESULTING FROM THE PRACTICES IN THE
PARTICULAR ENTERPRISE UNDER CONSIDERATION WOULD BE OF THE CHARACTER
WHICH FEDERAL POWER COULD CONTROL IF IT OCCURRED.  IF STRIFE IN THAT
ENTERPRISE COULD BE CONTROLLED, CERTAINLY IT COULD BE PREVENTED." 

MANIFESTLY THAT VIEW OF CONGRESSIONAL POWER WOULD EXTEND IT INTO
ALMOST EVERY FIELD OF HUMAN INDUSTRY.  WITH STRIKING LUCIDITY, FIFTY
YEARS AGO, KIDD V. PEARSON, 128 U.S. 1, 21, DECLARED: "IF IT BE HELD
THAT THE TERM (COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL
STATES) INCLUDES THE REGULATION OF ALL SUCH MANUFACTURES AS ARE
INTENDED TO BE THE SUBJECT OF COMMERCIAL TRANSACTIONS IN THE FUTURE, IT
IS IMPOSSIBLE TO DENY THAT IT WOULD ALSO INCLUDE ALL PRODUCTIVE
INDUSTRIES THAT CONTEMPLATE THE SAME THING.  THE RESULT WOULD BE THAT
CONGRESS WOULD BE INVESTED, TO THE EXCLUSION OF THE STATES, WITH THE
POWER TO REGULATE, NOT ONLY MANUFACTURES, BUT ALSO AGRICULTURE,
HORTICULTURE, STOCK RAISING, DOMESTIC FISHERIES, MINING - IN SHORT,
EVERY BRANCH OF HUMAN INDUSTRY."  THIS DOCTRINE FOUND FULL APPROVAL IN
UNITED STATES V. E.C. KNIGHT CO., 156 U.S. 1, 12, 13; SCHECHTER POULTRY
CORP. V. UNITED STATES, SUPRA, AND CARTER V. CARTER COAL CO., SUPRA,
WHERE THE AUTHORITIES ARE COLLECTED AND PRINCIPLES APPLICABLE HERE ARE
DISCUSSED. 

IN KNIGHT'S CASE CHIEF JUSTICE FULLER, SPEAKING FOR THE COURT, SAID:
"DOUBTLESS THE POWER TO CONTROL THE MANUFACTURE OF A GIVEN THING
INVOLVES IN A CERTAIN SENSE THE CONTROL OF ITS DISPOSITION, BUT THIS IS
A SECONDARY AND NOT THE PRIMARY SENSE; AND ALTHOUGH THE EXERCISE OF
THAT POWER MAY RESULT IN BRINGING THE OPERATION OF COMMERCE INTO PLAY,
IT DOES NOT CONTROL IT, AND AFFECTS IT ONLY INCIDENTALLY AND
INDIRECTLY.  COMMERCE SUCCEEDS TO MANUFACTURE, AND IS NOT A PART OF IT
...  IT IS VITAL THAT THE INDEPENDENCE OF THE COMMERCIAL POWER AND OF
THE POLICE POWER, AND THE DELIMITATION BETWEEN THEM, HOWEVER SOMETIMES
PERPLEXING, SHOULD ALWAYS BE RECOGNIZED AND OBSERVED, FOR WHILE THE ONE
FURNISHES THE STRONGEST BOND OF UNION, THE OTHER IS ESSENTIAL TO THE
PRESERVATION OF THE AUTONOMY OF THE STATES AS REQUIRED BY OUR DUAL FORM
OF GOVERNMENT; AND ACKNOWLEDGED EVILS, HOWEVER GRAVE AND URGENT THEY
MAY APPEAR TO BE, HAD BETTER BE BORNE, THAN THE RISK BE RUN, IN THE
EFFORT TO SUPPRESS THEM, OF MORE SERIOUS CONSEQUENCES BY RESORT TO
EXPEDIENTS OF EVEN DOUBTFUL CONSTITUTIONALITY." 

IN SCHECHTER'S CASE WE SAID:  "IN DETERMINING HOW FAR THE FEDERAL
GOVERNMENT MAY GO IN CONTROLLING INTRASTATE TRANSACTIONS UPON THE
GROUND THAT THEY 'AFFECT' INTERSTATE COMMERCE, THERE IS A NECESSARY AND
WELL-ESTABLISHED DISTINCTION BETWEEN DIRECT AND INDIRECT EFFECTS.  THE
PRECISE LINE CAN BE DRAWN ONLY AS INDIVIDUAL CASES ARISE, BUT THE
DISTINCTION IS CLEAR IN PRINCIPLE  ... BUT WHERE THE EFFECT OF
INTRASTATE TRANSACTIONS UPON INTERSTATE COMMERCE IS MERELY INDIRECT,
SUCH TRANSACTIONS REMAIN WITHIN THE DOMAIN OF STATE POWER.  IF THE
COMMERCE CLAUSE WERE CONSTRUED TO REACH ALL ENTERPRISES AND
TRANSACTIONS WHICH COULD BE SAID TO HAVE AN INDIRECT EFFECT UPON
INTERSTATE COMMERCE, THE FEDERAL AUTHORITY WOULD EMBRACE PRACTICALLY
ALL THE ACTIVITIES OF THE PEOPLE AND THE AUTHORITY OF THE STATE OVER
ITS DOMESTIC CONCERNS WOULD EXIST ONLY BY SUFFERANCE OF THE FEDERAL
GOVERNMENT.  INDEED, ON SUCH A THEORY, EVEN THE DEVELOPMENT OF THE
STATE'S COMMERCIAL FACILITIES WOULD BE SUBJECT TO FEDERAL CONTROL." 

CARTER'S CASE DECLARED - "WHETHER THE EFFECT OF A GIVEN ACTIVITY OR
CONDITION IS DIRECT OR INDIRECT IS NOT ALWAYS EASY TO DETERMINE.  THE
WORD 'DIRECT' IMPLIES THAT THE ACTIVITY OR CONDITION INVOKED OR BLAMED
SHALL OPERATE PROXIMATELY - NOT MEDIATELY, REMOTELY, OR COLLATERALLY -
TO PRODUCE THE EFFECT.  IT CONNOTES THE ABSENCE OF AN EFFICIENT
INTERVENING AGENCY OR CONDITION.  AND THE EXTENT OF THE EFFECT BEARS NO
LOGICAL RELATION TO ITS CHARACTER.  THE DISTINCTION BETWEEN A DIRECT
AND AN INDIRECT EFFECT TURNS, NOT UPON THE MAGNITUDE OF EITHER THE
CAUSE OR THE EFFECT, BUT ENTIRELY UPON THE MANNER IN WHICH THE EFFECT
HAS BEEN BROUGHT ABOUT.  IF THE PRODUCTION BY ONE MAN OF A SINGLE TON
OF COAL INTENDED FOR INTERSTATE SALE AND SHIPMENT, AND ACTUALLY SO SOLD
AND SHIPPED, AFFECTS INTERSTATE COMMERCE INDIRECTLY, THE EFFECT DOES
NOT BECOME DIRECT BY MULTIPLYING THE TONNAGE, OR INCREASING THE NUMBER
OF MEN EMPLOYED, OR ADDING TO THE EXPENSE OR COMPLEXITIES OF THE
BUSINESS, OR BY ALL COMBINED." 

ANY EFFECT ON INTERSTATE COMMERCE BY THE DISCHARGE OF EMPLOYEES SHOWN
HERE, WOULD BE INDIRECT AND REMOTE IN THE HIGHEST DEGREE, AS
CONSIDERATION OF THE FACTS WILL SHOW.  IN NO. 419 TEN MEN OUT OF TEN
THOUSAND WERE DISCHARGED; IN THE OTHER CASES ONLY A FEW.  THE IMMEDIATE
EFFECT IN THE FACTORY MAY BE TO CREATE DISCONTENT AMONG ALL THOSE
EMPLOYED AND A STRIKE MAY FOLLOW, WHICH, IN TURN, MAY RESULT IN
REDUCING PRODUCTION, WHICH ULTIMATELY MAY REDUCE THE VOLUME OF GOODS
MOVING IN INTERSTATE COMMERCE.  BY THIS CHAIN OF INDIRECT AND
PROGRESSIVELY REMOTE EVENTS WE FINALLY REACH THE EVIL WITH WHICH IT IS
SAID THE LEGISLATION UNDER CONSIDERATION UNDERTAKES TO DEAL.  A MORE
REMOTE AND INDIRECT INTERFERENCE WITH INTERSTATE COMMERCE OR A MORE
DEFINITE INVASION OF THE POWERS RESERVED TO THE STATES IS DIFFICULT, IF
NOT IMPOSSIBLE, TO IMAGINE. 

THE CONSTITUTION STILL RECOGNIZES THE EXISTENCE OF STATES WITH
INDESTRUCTIBLE POWERS; THE TENTH AMENDMENT WAS SUPPOSED TO PUT THEM
BEYOND CONTROVERSY. 

WE ARE TOLD THAT CONGRESS MAY PROTECT THE "STREAM OF COMMERCE" AND
THAT ONE WHO BUYS RAW MATERIAL WITHOUT THE STATE, MANUFACTURES IT
THEREIN, AND SHIPS THE OUTPUT TO ANOTHER STATE IS IN THAT STREAM. 
THEREFORE IT IS SAID HE MAY BE PREVENTED FROM DOING ANYTHING WHICH MAY
INTERFERE WITH ITS FLOW. 

THIS, TOO, GOES BEYOND THE CONSTITUTIONAL LIMITATIONS HERETOFORE
ENFORCED.  IF A MAN RAISES CATTLE AND REGULARLY DELIVERS THEM TO A
CARRIER FOR INTERSTATE SHIPMENT, MAY CONGRESS PRESCRIBE THE CONDITIONS
UNDER WHICH HE MAY EMPLOY OR DISCHARGE HELPERS ON THE RANCH?  THE
PRODUCTS OF A MINE PASS DAILY INTO INTERSTATE COMMERCE; MANY THINGS ARE
BROUGHT TO IT FROM OTHER STATES.  ARE THE OWNERS AND THE MINERS WITHIN
THE POWER OF CONGRESS IN RESPECT OF THE MINERS' TENURE AND DISCHARGE? 
MAY A MILL OWNER BE PROHIBITED FROM CLOSING HIS FACTORY OR
DISCONTINUING HIS BUSINESS BECAUSE SO TO DO WOULD STOP THE FLOW OF
PRODUCTS TO AND FROM HIS PLANT IN INTERSTATE COMMERCE?  MAY EMPLOYEES
IN A FACTORY BE RESTRAINED FROM QUITTING WORK IN A BODY BECAUSE THIS
WILL CLOSE THE FACTORY AND THEREBY STOP THE FLOW OF COMMERCE?  MAY
ARSON OF A FACTORY BE MADE A FEDERAL OFFENSE WHENEVER THIS WOULD
INTEREFERE WITH SUCH FLOW?  IF THE BUSINESS CANNOT CONTINUE WITH THE
EXISTING WAGE SCALE, MAY CONGRESS COMMAND A REDUCTION?  IF THE RULING
OF THE COURT JUST ANNOUNCED IS ADHERED TO THESE QUESTIONS SUGGEST SOME
OF THE PROBLEMS CERTAIN TO ARISE.    AND IF THIS THEORY OF A CONTINUOUS
"STREAM OF COMMERCE" AS NOW DEFINED IS CORRECT, WILL IT BECOME THE DUTY
OF THE FEDERAL GOVERNMENT HEREAFTER TO SUPPRESS EVERY STRIKE WHICH BY
POSSIBILITY MAY CAUSE A BLOCKADE IN THAT STREAM?  IN RE DEBS, 158 U.S.
564.  MOREOVER, SINCE CONGRESS HAS INTERVENED, ARE LABOR RELATIONS
BETWEEN MOST MANUFACTURERS AND THEIR EMPLOYEES REMOVED FROM ALL CONTROL
BY THE STATE?  OREGON-WASHINGTON R. & N. CO. V. WASHINGTON, 270 U.S.
87(1926). 

TO THIS ARGUMENT ARKADELPHIA MILLING CO. V. ST. LOUIS SOUTHWESTERN R.
CO., 249 U.S. 134, 150, AFFORDS AN ADEQUATE REPLY.  NO SUCH CONTINUOUS
STREAM IS SHOWN BY THESE RECORDS AS THAT WHICH COUNSEL ASSUME. 

THERE IS NO GROUND ON WHICH REASONABLY TO HOLD THAT REFUSAL BY A
MANUFACTURER, WHOSE RAW MATERIALS COME FROM STATES OTHER THAN THAT OF
HIS FACTORY AND WHOSE PRODUCTS ARE REGULARLY CARRIED TO OTHER STATES,
TO BARGAIN COLLECTIVELY WITH EMPLOYEES IN HIS MANUFACTURING PLANT,
DIRECTLY AFFECTS INTERSTATE COMMERCE.  IN SUCH BUSINESS, THERE IS NOT
ONE BUT TWO DISTINCT MOVEMENTS OR STREAMS IN INTERSTATE
TRANSPORTATION.  THE FIRST BRINGS IN RAW MATERIAL AND THERE ENDS.  THEN
FOLLOWS MANUFACTURE, A SEPARATE AND LOCAL ACTIVITY.  UPON COMPLETION OF
THIS, AND NOT BEFORE, THE SECOND DISTINCT MOVEMENT OR STREAM IN
INTERSTATE COMMERCE BEGINS AND THE PRODUCTS GO TO OTHER STATES.  SUCH
IS THE COMMON COURSE FOR SMALL AS WELL AS LARGE INDUSTRIES.  IT IS
UNREASONABLE AND UNPRECEDENTED TO SAY THE COMMERCE CLAUSE CONFERS UPON
CONGRESS POWER TO GOVERN RELATIONS BETWEEN EMPLOYERS AND EMPLOYEES IN
THESE LOCAL ACTIVITIES.  STOUT V. PRATT, 12 F.SUPP.  864.  IN
SCHECHTER'S CASE WE CONDEMNED AS UNAUTHORIZED BY THE COMMERCE CLAUSE
ASSERTION OF FEDERAL POWER IN RESPECT OF COMMODITIES WHICH HAD COME TO
REST AFTER INTERSTATE TRANSPORTATION.  AND, IN CARTER'S CASE, WE HELD
CONGRESS LACKED POWER TO REGULATE LABOR RELATIONS IN RESPECT OF
COMMODITIES BEFORE INTERSTATE COMMERCE HAS BEGUN. 

IT IS GRAVELY STATED THAT EXPERIENCE TEACHES THAT IF AN EMPLOYER
DISCOURAGES MEMBERSHIP IN "ANY ORGANIZATION OF ANY KIND" "IN WHICH
EMPLOYEES PARTICIPATE, AND WHICH EXISTS FOR THE PURPOSE IN WHOLE OR IN
PART OF DEALING WITH EMPLOYERS CONCERNING GRIEVANCES, LABOR DISPUTES,
WAGES, RATES OF PAY, HOURS OF EMPLOYMENT OR CONDITIONS OF WORK,"
DISCONTENT MAY FOLLOW AND THIS IN TURN MAY LEAD TO A STRIKE, AND AS THE
OUTCOME OF THE STRIKE THERE MAY BE A BLOCK IN THE STREAM OF INTERSTATE
COMMERCE.  THEREFORE CONGRESS MAY INHIBIT THE DISCHARGE.  WHATEVER
EFFECT ANY CAUSE OF DISCONTENT MAY ULTIMATELY HAVE UPON COMMERCE IS FAR
TOO INDIRECT TO JUSTIFY CONGRESSIONAL REGULATION.  ALMOST ANYTHING -
MARRIAGE, BIRTH, DEATH - MAY IN SOME FASHION AFFECT COMMERCE. 

                               VIII. 

THAT CONGRESS HAS POWER BY APPROPRIATE MEANS, NOT PROHIBITED BY THE
CONSTITUTION, TO PREVENT DIRECT AND MATERIAL INTERFERENCE WITH THE
CONDUCT OF INTERSTATE COMMERCE IS SETTLED DOCTRINE.  BUT THE
INTERFERENCE STRUCK AT MUST BE DIRECT AND MATERIAL, NOT SOME MERE
POSSIBILITY CONTINGENT ON WHOLLY UNCERTAIN EVENTS; AND THERE MUST BE NO
IMPAIRMENT OF RIGHTS GUARANTEED.  A STATE BY TAXATION ON PROPERTY MAY
INDIRECTLY BUT SERIOUSLY AFFECT THE COST OF TRANSPORTATION; IT MAY NOT
LAY A DIRECT TAX UPON THE RECEIPTS FROM INTERSTATE TRANSPORTATION.  THE
FIRST IS AN INDIRECT EFFECT, THE OTHER DIRECT. 

THIS POWER TO PROTECT INTERSTATE COMMERCE WAS INVOKED IN STANDARD OIL
CO. V. UNITED STATES, 221 U.S. 1, AND UNITED STATES V. AMERICAN TOBACCO
CO., 221 U.S. 106.  IN EACH OF THOSE CASES A COMBINATION SOUGHT TO
MONOPOLIZE AND RESTRAIN INTERSTATE COMMERCE THROUGH PURCHASE AND
CONSEQUENT CONTROL OF MANY LARGE COMPETING CONCERNS ENGAGED BOTH IN
MANUFACTURE AND INTERSTATE COMMERCE.  THE COMBINATION WAS SUFFICIENTLY
POWERFUL AND ACTION BY IT SO PERSISTENT THAT SUCCESS BECAME A DANGEROUS
PROBABILITY.  HERE THERE IS NO SUCH SITUATION, AND THE CASES ARE
INAPPLICABLE IN THE CIRCUMSTANCES.  THERE IS NO CONSPIRACY TO INTERFERE
WITH COMMERCE UNLESS IT CAN BE SAID TO EXIST AMONG THE EMPLOYEES WHO
BECAME MEMBERS OF THE UNION.  THERE IS A SINGLE PLANT OPERATED BY ITS
OWN MANAGEMENT WHOSE ONLY OFFENSE, AS ALLEGED, WAS THE DISCHARGE OF A
FEW EMPLOYEES IN THE PRODUCTION DEPARTMENT BECAUSE THEY BELONGED TO A
UNION, COMING WITHIN THE BROAD DEFINITION OF "LABOR ORGANIZATION"
PRESCRIBED BY SEC. 2(5) OF THE ACT.  THAT DEFINITION INCLUDES ANY
ORGANIZATION IN WHICH EMPLOYEES PARTICIPATE AND WHICH EXISTS FOR THE
PURPOSE IN WHOLE OR IN PART OF DEALING WITH EMPLOYERS CONCERNING
GRIEVANCES, WAGES, &C. 

CONSTRUED SO AS TO INTERFERE WITH OR IMPEDE OR DIMINISH IN ANY WAY THE
RIGHT TO STRIKE."  AND YET IT IS RULED THAT TO DISCHARGE AN EMPLOYEE IN
A FACTORY BECAUSE HE IS A MEMBER OF A LABOR ORGANIZATION (ANY KIND) MAY
CREATE DISCONTENT WHICH MAY LEAD TO A STRIKE AND THIS MAY CAUSE A BLOCK
IN THE "STREAM OF COMMERCE"; CONSEQUENTLY THE DISCHARGE MAY BE
INHIBITED.  THUS THE ACT EXEMPTS FROM ITS AMBIT THE VERY EVIL WHICH
COUNSEL INSIST MAY RESULT FROM DISCONTENT CAUSED BY A DISCHARGE OF AN
ASSOCIATION MEMBER, BUT PERMITS COERCION OF A NON-MEMBER TO JOIN ONE. 

THE THINGS INHIBITED BY THE LABOR ACT RELATE TO THE MANAGEMENT OF A
MANUFACTURING PLANT - SOMETHING DISTINCT FROM COMMERCE AND SUBJECT TO
THE AUTHORITY OF THE STATE.  AND THIS MAY NOT BE ABRIDGED BECAUSE OF
SOME VAGUE POSSIBILITY OF DISTANT INTERFERENCE WITH COMMERCE. 

IX. 

TEXAS & NEW ORLEANS R. CO. V. BROTHERHOOD OF RAILWAY & STEAMSHIP
CLERKS, 281 U.S. 548, IS NOT CONTROLLING.  THERE THE COURT, WHILE
CONSIDERING AN ACT DEFINITELY LIMITED TO COMMON CARRIERS ENGAGED IN
INTERSTATE TRANSPORTATION OVER WHOSE AFFAIRS CONGRESS ADMITTEDLY HAS
WIDE POWER, DECLARED:  "THE PETITIONERS INVOKE THE PRINCIPLE DECLARED
IN ADAIR V. UNITED STATES, 208 U.S. 161, AND COPPAGE V. KANSAS, 236
U.S. 1, BUT THESE DECISIONS ARE INAPPLICABLE.  THE RAILWAY LABOR ACT OF
1926 DOES NOT INTERFERE WITH THE NORMAL EXERCISE OF THE RIGHT OF THE
CARRIER TO SELECT ITS EMPLOYEES OR TO DISCHARGE THEM.  THE STATUTE IS
NOT AIMED AT THIS RIGHT OF THE EMPLOYERS BUT AT THE INTERFERENCE WITH
THE RIGHT OF EMPLOYEES TO HAVE REPRESENTATIVES OF THEIR OWN CHOOSING. 
AS THE CARRIERS SUBJECT TO THE ACT HAVE NO CONSTITUTIONAL RIGHT TO
INTERFERE WITH THE FREEDOM OF THE EMPLOYEES IN MAKING THEIR SELECTIONS,
THEY CANNOT COMPLAIN OF THE STATUTE ON CONSTITUTIONAL GROUNDS." 

ADAIR'S CASE, SUPRA, PRESENTED THE QUESTION - "MAY CONGRESS MAKE IT A
CRIMINAL OFFENSE AGAINST THE UNITED STATES - AS BY THE TENTH SECTION OF
THE ACT OF 1898 IT DOES - FOR AN AGENT OR OFFICER OF AN INTERSTATE
CARRIER, HAVING FULL AUTHORITY IN THE PREMISES FROM THE CARRIER, TO
DISCHARGE AN EMPLOYEE FROM SERVICE SIMPLY BECAUSE OF HIS MEMBERSHIP IN
A LABOR ORGANIZATION?"  THE ANSWER WAS NO.  "WHILE, AS ALREADY
SUGGESTED, THE RIGHTS OF LIBERTY AND PROPERTY GUARANTEED BY THE
CONSTITUTION AGAINST DEPRIVATION WITHOUT DUE PROCESS OF LAW, ARE
SUBJECT TO SUCH REASONABLE RESTRAINTS AS THE COMMON GOOD OR THE GENERAL
WELFARE MAY REQUIRE, IT IS NOT WITHIN THE FUNCTIONS OF GOVERNMENT - AT
LEAST IN THE ABSENCE OF CONTRACT BETWEEN THE PARTIES - TO COMPEL ANY
PERSON IN THE COURSE OF HIS BUSINESS AND AGAINST HIS WILL TO ACCEPT OR
RETAIN THE PERSONAL SERVICES OF ANOTHER, OR TO COMPEL ANY PERSON,
AGAINST HIS WILL, TO PERFORM PERSONAL SERVICES FOR ANOTHER.  THE RIGHT
OF A PERSON TO SELL HIS LABOR UPON SUCH TERMS AS HE DEEMS PROPER IS, IN
ITS ESSENCE, THE SAME AS THE RIGHT OF THE PURCHASER OF LABOR TO
PRESCRIBE THE CONDITIONS UPON WHICH HE WILL ACCEPT SUCH LABOR FROM THE
PERSON OFFERING TO SELL IT.  SO THE RIGHT OF THE EMPLOYEE TO QUIT THE
SERVICE OF THE EMPLOYER, FOR WHATEVER REASON, IS THE SAME AS THE RIGHT
OF THE EMPLOYER, FOR WHATEVER REASON, TO DISPENSE WITH THE SERVICES OF
SUCH EMPLOYEE.  IT WAS THE LEGAL RIGHT OF THE DEFENDANT ADAIR - HOWEVER
UNWISE SUCH A COURSE MIGHT HAVE BEEN - TO DISCHARGE COPPAGE BECAUSE OF
HIS BEING A MEMBER OF A LABOR ORGANIZATION, AS IT WAS THE LEGAL RIGHT
OF COPPAGE, IF HE SAW FIT TO DO SO - HOWEVER UNWISE SUCH A COURSE ON
HIS PART MIGHT HAVE BEEN - TO QUIT THE SERVICE IN WHICH HE WAS ENGAGED,
BECAUSE THE DEFENDANT EMPLOYED SOME PERSONS WHO WERE NOT MEMBERS OF A
LABOR ORGANIZATION.  IN ALL SUCH PARTICULARS THE EMPLOYER AND THE
EMPLOYEE HAVE EQUALITY OF RIGHT, AND ANY LEGISLATION THAT DISTURBS THAT
EQUALITY IS AN ARBITRARY INTERFERENCE WITH THE LIBERTY OF CONTRACT
WHICH NO GOVERNMENT CAN LEGALLY JUSTIFY IN A FREE LAND."  "THE
PROVISION OF THE STATUTE UNDER WHICH THE DEFENDANT WAS CONVICTED MUST
BE HELD TO BE REPUGNANT TO THE FIFTH AMENDMENT AND AS NOT EMBRACED BY
NOR WITHIN THE POWER OF CONGRESS TO REGULATE INTERSTATE COMMERCE, BUT
UNDER THE GUISE OF REGULATING INTERSTATE COMMERCE AND AS APPLIED TO
THIS CASE IT ARBITRARILY SANCTIONS AN ILLEGAL INVASION OF THE PERSONAL
LIBERTY AS WELL AS THE RIGHT OF PROPERTY OF THE DEFENDANT ADAIR." 

COPPAGE V. KANSAS, FOLLOWING THE ADAIR CASE, HELD THAT A STATE
STATUTE, DECLARING IT A MISDEMEANOR TO REQUIRE AN EMPLOYEE TO AGREE NOT
TO BECOME A MEMBER OF A LABOR ORGANIZATION DURING THE TIME OF HIS
EMPLOYMENT, WAS REPUGNANT TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. 

THE RIGHT TO CONTRACT IS FUNDAMENTAL AND INCLUDES THE PRIVILEGE OF
SELECTING THOSE WITH WHOM ONE IS WILLING TO ASSUME CONTRACTUAL
RELATIONS.  THIS RIGHT IS UNDULY ABRIDGED BY THE ACT NOW UPHELD.  A
PRIVATE OWNER IS DEPRIVED OF POWER TO MANAGE HIS OWN PROPERTY BY FREELY
SELECTING THOSE TO WHOM HIS MANUFACTURING OPERATIONS ARE TO BE
ENTRUSTED.  WE THINK THIS CANNOT LAWFULLY BE DONE IN CIRCUMSTANCES LIKE
THOSE HERE DISCLOSED. 

IT SEEMS CLEAR TO US THAT CONGRESS HAS TRANSCENDED THE POWERS
GRANTED. 

FN1  NATIONAL LABOR RELATIONS ACT (ACT OF JULY 5, 1935, C. 372, 49
STAT. 449; U.S.C., SUP. I, TIT. 29, SECS. 151 ET SEQ.). 

FNA  STOUT V. PRATT, 12 F.SUPP.  864.  BENDIX PRODUCTS CORP. V.
BEMAN, 14 F.SUPP.  58.  EAGLE-PICHER LEAD CO. V. MADDEN, 15 F.SUPP. 
407.  BETHLEHEM SHIPBUILDING CORP. V. MEYERS, 15 F.SUPP.  915.  EL PASO
ELECTRIC CO. V. ELLIOTT, 15 F.SUPP.  81.  OBERMAN & CO. V. PRATT, 16
F.SUPP.  887. 

FN2  SEC. 2.  (2)  THE TERM "EMPLOYER" INCLUDES ANY PERSON ACTING IN
THE INTEREST OF AN EMPLOYER, DIRECTLY OR INDIRECTLY, BUT SHALL NOT
INCLUDE THE UNITED STATES, OR ANY STATE OR POLITICAL SUBDIVISION
THEREOF, OR ANY PERSON SUBJECT TO THE RAILWAY LABOR ACT, AMENDED FROM
TIME TO TIME, OR ANY LABOR ORGANIZATION (OTHER THAN WHEN ACTING AS AN
EMPLOYER), OR ANYONE ACTING IN THE CAPACITY OF OFFICER OR AGENT OF SUCH
LABOR ORGANIZATION. 

SEC. 2.  (3)  THE TERM "EMPLOYEE" SHALL INCLUDE ANY EMPLOYEE, AND
SHALL NOT BE LIMITED TO THE EMPLOYEES OF A PARTICULAR EMPLOYER, UNLESS
THE ACT EXPLICITLY STATES OTHERWISE, AND SHALL INCLUDE ANY INDIVIDUAL
WHOSE WORK HAS CEASED AS A CONSEQUENCE OF, OR IN CONNECTION WITH, ANY
CURRENT LABOR DISPUTE OR BECAUSE OF ANY UNFAIR LABOR PRACTICE, AND WHO
HAS NOT OBTAINED ANY OTHER REGULAR AND SUBSTANTIALLY EQUIVALENT
EMPLOYMENT, BUT SHALL NOT INCLUDE ANY INDIVIDUAL EMPLOYED AS AN
AGRICULTURAL LABORER, OR IN THE DOMESTIC SERVICE OF ANY FAMILY OR
PERSON AT HIS HOME, OR ANY INDIVIDUAL EMPLOYED BY HIS PARENT OR
SPOUSE. 

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
CONCERTED ACTIVITIES, FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER
MUTUAL AID OR PROTECTION. 

FNB  SEC. 2.  (5) THE TERM "LABOR ORGANIZATION" MEANS ANY
ORGANIZATION OF ANY KIND, OR ANY AGENCY OR EMPLOYEE REPRESENTATION
COMMITTEE OR PLAN, IN WHICH EMPLOYEES PARTICIPATE AND WHICH EXISTS FOR
THE PURPOSE, IN WHOLE OR IN PART, OF DEALING WITH EMPLOYERS CONCERNING
GRIEVANCES, LABOR DISPUTES, WAGES, RATES OF PAY, HOURS OF EMPLOYMENT,
OR CONDITIONS OF WORK. 

SEC. 3.  (A)  THERE IS HEREBY CREATED A BOARD, TO BE KNOWN AS THE
"NATIONAL LABOR RELATIONS BOARD" (HEREINAFTER REFERRED TO AS THE
"BOARD"), WHICH SHALL BE COMPOSED OF THREE MEMBERS, WHO SHALL BE
APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE
SENATE.  ONE OF THE ORIGINAL MEMBERS SHALL BE APPOINTED FOR A TERM OF
ONE YEAR, ONE FOR A TERM OF THREE YEARS, AND ONE FOR A TERM OF FIVE
YEARS, BUT THEIR SUCCESSORS SHALL BE APPOINTED FOR TERMS OF FIVE YEARS
EACH, EXCEPT THAT ANY INDIVIDUAL CHOSEN TO FILL A VACANCY SHALL BE
APPOINTED ONLY FOR THE UNEXPIRED TERM OF THE MEMBER WHOM HE SHALL
SUCCEED.  THE PRESIDENT SHALL DESIGNATE ONE MEMBER TO SERVE AS CHAIRMAN
OF THE BOARD.  ANY MEMBER OF THE BOARD MAY BE REMOVED BY THE PRESIDENT,
UPON NOTICE AND HEARING, FOR NEGLECT OF DUTY OR MALFEASANCE IN OFFICE,
BUT FOR NO OTHER CAUSE. 

FN3  SEC. 10.  (B)  WHENEVER IT IS CHARGED THAT ANY PERSON HAS ENGAGED
IN OR IS ENGAGING IN ANY SUCH UNFAIR LABOR PRACTICE, THE BOARD, OR ANY
AGENT OR AGENCY DESIGNATED BY THE BOARD FOR SUCH PURPOSES, 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 OR A MEMBER THEREOF, OR BEFORE A DESIGNATED AGENT OR
AGENCY, AT A PLACE THEREIN FIXED, NOT LESS THAN FIVE DAYS AFTER THE
SERVING OF SAID COMPLAINT.  ANY SUCH COMPLAINT MAY BE AMENDED BY THE
MEMBER, AGENT, OR AGENCY CONDUCTING THE HEARING OR THE BOARD IN ITS
DISCRETION AT ANY TIME PRIOR TO THE ISSUANCE OF AN ORDER BASED
THEREON.  THE PERSON SO COMPLAINED OF SHALL HAVE THE RIGHT TO FILE AN
ANSWER TO THE ORIGINAL OR AMENDED COMPLAINT AND TO APPEAR IN PERSON OR
OTHERWISE AND GIVE TESTIMONY AT THE PLACE AND TIME FIXED IN THE
COMPLAINT.  IN THE DISCRETION OF THE MEMBER, AGENT, OR AGENCY
CONDUCTING THE HEARING OR THE BOARD, ANY OTHER PERSON MAY BE ALLOWED TO
INTERVENE IN THE SAID PROCEEDING AND TO PRESENT TESTIMONY.  IN ANY SUCH
PROCEEDING THE RULES OF EVIDENCE PREVAILING IN COURTS OF LAW OR EQUITY
SHALL NOT BE CONTROLLING.   FN4  SEC. 8.  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 7. 

(2)  TO DOMINATE OR INTERFERE WITH THE FORMATION OR ADMINISTRATION OF
ANY LABOR ORGANIZATION OR CONTRIBUTE FINANCIAL OR OTHER SUPPORT TO IT:
PROVIDED, THAT SUBJECT TO RULES AND REGULATIONS MADE AND PUBLISHED BY
THE BOARD PURSUANT TO SECTION 6(A), AN EMPLOYER SHALL NOT BE PROHIBITED
FROM PERMITTING EMPLOYEES TO CONFER WITH HIM DURING WORKING HOURS
WITHOUT LOSS OF TIME OR PAY. 

(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, THAT NOTHING IN THIS
ACT, OR IN THE NATIONAL INDUSTRIAL RECOVERY ACT (U.S.C., SUPP. VII,
TITLE 15, SECS. 701-712), AS AMENDED FROM TIME TO TIME, OR IN ANY CODE
OR AGREEMENT APPROVED OR PRESCRIBED THEREUNDER, OR IN ANY OTHER STATUTE
OF THE UNITED STATES, SHALL PRECLUDE AN EMPLOYER FROM MAKING AN
AGREEMENT WITH A LABOR ORGANIZATION (NOT ESTABLISHED, MAINTAINED, OR
ASSISTED BY ANY ACTION DEFINED IN THIS ACT AS AN UNFAIR LABOR PRACTICE)
TO REQUIRE AS A CONDITION OF EMPLOYMENT MEMBERSHIP THEREIN IF SUCH
LABOR ORGANIZATION IS THE REPRESENTATIVE OF THE EMPLOYEES AS PROVIDED
IN SECTION 9(A), IN THE APPROPRIATE COLLECTIVE BARGAINING UNIT COVERED
BY SUCH AGREEMENT WHEN MADE. 

(4)  TO DISCHARGE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE
BECAUSE HE HAS FILED CHARGES OR GIVEN TESTIMONY UNDER THIS ACT. 

(5)  TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SECTION 9(A). 

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:  PROVIDED, THAT ANY INDIVIDUAL EMPLOYEE
OR A GROUP OF EMPLOYEES SHALL HAVE THE RIGHT AT ANY TIME TO PRESENT
GRIEVANCES TO THEIR EMPLOYER. 

FN5  SEC. 2(6)  THE TERM "COMMERCE" MEANS TRADE, TRAFFIC, COMMERCE,
TRANSPORTATION, OR COMMUNICATION AMONG THE SEVERAL STATES, OR BETWEEN
THE DISTRICT OF COLUMBIA OR ANY TERRITORY OF THE UNITED STATES AND ANY
STATE OR OTHER TERRITORY, OR BETWEEN ANY FOREIGN COUNTRY AND ANY STATE,
TERRITORY, OR THE DISTRICT OF COLUMBIA, OR WITHIN THE DISTRICT OF
COLUMBIA OR ANY TERRITORY, OR BETWEEN POINTS IN THE SAME STATE BUT
THROUGH ANY OTHER STATE OR ANY TERRITORY OR THE DISTRICT OF COLUMBIA OR
ANY FOREIGN COUNTRY. 

(7)  THE TERM "AFFECTING COMMERCE" MEANS IN COMMERCE, OR BURDENING OR
OBSTRUCTING COMMERCE OR THE FREE FLOW OF COMMERCE, OR HAVING LED OR
TENDING TO LEAD TO A LABOR DISPUTE BURDENING OR OBSTRUCTING COMMERCE OR
THE FREE FLOW OF COMMERCE. 
..END :










ASSOCIATED PRESS V. NATIONAL LABOR RELATIONS BOARD, 301 U.S. 103 


NO. 365.  ARGUED FEBRUARY 9, 10, 1937.  - DECIDED APRIL 12, 1937.  - 85
F.(2D) 56, AFFIRMED. 


1.  INTERSTATE COMMUNICATION OF A BUSINESS NATURE, WHATEVER THE MEANS
EMPLOYED, IS INTERSTATE COMMERCE SUBJECT TO REGULATION BY CONGRESS.  P.
128. 

2.  THE ASSOCIATED PRESS, A NON-PROFIT-MAKING CORPORATION WHOSE
MEMBERS ARE THE OWNERS OF NEWSPAPERS PUBLISHED FOR PROFIT THROUGHOUT
THE COUNTRY, IS ENGAGED AS THEIR AGENCY IN EXCHANGING NEWS BETWEEN
THOSE PUBLICATIONS, USING THE TELEGRAPH AND TELEPHONE AND OTHER MEANS
OF COMMUNICATION, AND IN SUPPLYING THEM IN LIKE MANNER WITH DOMESTIC
AND FOREIGN NEWS COLLECTED BY ITSELF.  HELD ENGAGED IN INTERSTATE
COMMERCE WITHIN THE MEANING OF THE NATIONAL LABOR RELATIONS ACT AND
CONSTITUTION, ART. I, SEC. 8.  P. 125. 

3.  THIS CONCLUSION IS UNAFFECTED BY THE FACTS THAT THE ASSOCIATED
PRESS DOES NOT ITSELF SELL NEWS OR OPERATE FOR PROFIT AND THAT
TECHNICALLY IT RETAINS TITLE TO THE NEWS DURING INTERSTATE
TRANSMISSION.  P. 128. 

4.  PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT EMPOWERING THE
NATIONAL LABOR RELATIONS BOARD, IN PROTECTION OF INTERSTATE COMMERCE,
TO REQUIRE THAT EMPLOYEES DISCHARGED FOR UNION ACTIVITIES AND ADVOCACY
OF COLLECTIVE BARGAINING BE RESTORED TO EMPLOYMENT AND THEIR LOSSES OF
PAY MADE GOOD, HELD VALID AS APPLIED TO THE ASSOCIATED PRESS IN THE
CASE OF AN EMPLOYEE WHOSE DUTIES WERE EDITORIAL, HAVING TO DO WITH THE
PREPARATION OF NEWS FOR TRANSMISSION RATHER THAN ITS ACTUAL
TRANSMISSION IN INTERSTATE COMMERCE.  VIRGINIAN RY. CO. V. SYSTEM
FEDERATION NO. 40, 300 U.S. 515; TEXAS & N.O.R. CO. V. RAILWAY CLERKS,
281 U.S. 548.  P. 129. 

5.  THE NATIONAL LABOR RELATIONS ACT, AS SO APPLIED IN THIS CASE,
DOES NOT UNCONSTITUTIONALLY ABRIDGE THE FREEDOM OF THE PRESS.  P. 130. 

THE ACT DOES NOT COMPEL THE ASSOCIATED PRESS TO EMPLOY ANYONE, OR TO
RETAIN AN INCOMPETENT EDITOR, OR ONE WHO FAILS FAITHFULLY TO EDIT THE
NEWS WITHOUT BIAS.  IT DOES NOT INTERFERE WITH THE RIGHT TO DISCHARGE
ANY EMPLOYEE (INCLUDING ONE WHO HAS BEEN SO REINSTATED BY ORDER OF THE
LABOR BOARD) FOR ANY CAUSE DEEMED PROPER BY THE EMPLOYER, SAVE ONLY THE
FORBIDDEN REASONS OF UNION ACTIVITIES AND ADVOCACY OF COLLECTIVE
BARGAINING. 

6.  THE CONTENTIONS THAT THE NATIONAL LABOR RELATIONS ACT DEPRIVES
PETITIONER OF PROPERTY WITHOUT DUE PROCESS; THAT THE ORDER OF THE BOARD
REQUIRING RESTORATION OF LOST PAY DEPRIVES PETITIONER OF THE RIGHT TO
TRIAL BY JURY; AND THAT THE ACT IS INVALID ON ITS FACE BECAUSE IT SEEKS
TO REGULATE BOTH INTERSTATE AND INTRASTATE COMMERCE, ARE REJECTED UPON
THE AUTHORITY OF TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548,
AND NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP.,
ANTE, P. 1.  P. 133. 

ASSOCIATED PRESS V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 299 U.S. 532, TO REVIEW A DECREE SUSTAINING AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD.  THE CASE CAME BEFORE THE COURT
BELOW ON THE BOARD'S PETITION FOR ENFORCEMENT OF ITS ORDER. 

I. THE ACT IS VOID IN ITS ENTIRETY AS AN UNRESTRICTED ATTEMPT TO
REGULATE THE RELATIONSHIP BETWEEN ALL INDUSTRIAL EMPLOYERS AND
EMPLOYEES BY IMPOSING "COLLECTIVE BARGAINING" IN VIOLATION OF THE TENTH
AMENDMENT. 

THIS SWEEPING PURPOSE APPEARS IN THE PREAMBLE AND IS EVEN MORE
CLEARLY SHOWN BY THE VERY PROVISIONS AND DEFINITIONS IN THE ACT.  THE
LEGISLATIVE HISTORY LEAVES NO POSSIBLE DOUBT. 

IN THIS RESPECT THE ACT IS INSEVERABLE, NOTWITHSTANDING THE
SEPARABILITY CLAUSE.  RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295
U.S. 330, 362. 

THE ENTIRE ACT, THEREFORE, IS A PATENT VIOLATION OF THE TENTH
AMENDMENT.  CARTER V. CARTER COAL CO., 298 U.S. 238; UNITED STATES V.
BUTLER, 297 U.S. 1; JACOBSON V. MASSACHUSETTS, 197 U.S. 11, 22;
SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495; MCCULLOCH V.
MARYLAND, 4 WHEAT.  316. 

II.  THE RELATION BETWEEN THE ASSOCIATED PRESS AND ITS EDITORIAL
EMPLOYEES IS NOT INTERSTATE COMMERCE, DOES NOT AFFECT SUCH COMMERCE,
AND IS NOT SUBJECT TO FEDERAL CONTROL. 

AN INTERRUPTION IN THE PROCESS OF PRODUCTION OR MANUFACTURE, ALTHOUGH
IT MAY LESSEN THE SUPPLY OF GOODS AVAILABLE FOR COMMERCE, IS NOT, PER
SE, AN OBSTRUCTION TO COMMERCE NOR DOES IT DIRECTLY AFFECT IT. 

IT IS DIRECT CAUSES OPERATING DIRECTLY WITH WHICH CONGRESS IS
EMPOWERED TO DEAL.  THERE MAY BE BORDERLINE CASES, BUT THE PRINCIPLE IS
CLEAR.  UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344, 408;
UNITED LEATHER WORKERS V. HERKERT, 265 U.S. 457. 

THE ASSERTION THAT LABOR DISPUTES BETWEEN THE EDITORIAL EMPLOYEES AND
THEIR EMPLOYER MIGHT OR WOULD DIRECTLY AFFECT INTERSTATE COMMERCE, IS
INCOMPREHENSIBLE IN THE LIGHT OF THIS COURT'S DECISIONS.  MANIFESTLY
THE EFFECT WOULD BE QUITE AS REMOTE AND NO MORE DIRECT THAN THAT
PRODUCED BY LABOR DISPUTES IN ANY PRODUCING INDUSTRY.  CARTER V. CARTER
COAL CO., 298 U.S. 238; SCHECHTER POULTRY CORP. V. UNITED STATES, 295
U.S. 495; UNITED MINE WORKERS V. CORONADO COAL CO., 259 U.S. 344. 

SO FAR AS THIS RECORD SHOWS, A WALKOUT IN THE NEW YORK OFFICE WOULD
NOT OF NECESSITY MATERIALLY AFFECT THE FLOW OF NEWS. 

IF CONGRESS CAN PASS A LAW TO COMPEL COLLECTIVE BARGAINING AND TO
FORBID THE DISCHARGE OF EMPLOYEES, AS PRESCRIBED BY SEC. 8, IT CAN,
WHEN IT CHOOSES, GO ON TO LAWS COMPELLING IN EXPRESS TERMS THE CLOSED
SHOP, THE OPEN SHOP, MAXIMUM AND MINIMUM WAGES, HOURS OF EMPLOYMENT,
SAFETY DEVICES, SANITARY ARRANGEMENTS, HOUSING, THE TIMES AND MANNER OF
PAYMENT - EVERYTHING IN SHORT WHICH BY ANY POSSIBILITY COULD BE THOUGHT
TO PROMOTE THE CONTENTMENT OF THE LABORER IN ANY AND EVERY INDUSTRY AND
THUS LEAD TO INDUSTRIAL PEACE. 

THE QUESTION OF POWER DOES NOT TURN UPON THE MAGNITUDE OF THE CAUSE
OR OF THE EFFECT, BUT ENTIRELY UPON THE MANNER IN WHICH THE EFFECT HAS
BEEN BROUGHT ABOUT.  CARTER V. CARTER COAL CO., 298 U.S. 238, 307-308. 

THE ASSOCIATED PRESS IS IN NO SENSE AN INSTRUMENTALITY OF INTERSTATE
COMMERCE.  ITS EDITORIAL EMPLOYEES, INCLUDING THE COMPLAINANT MORRIS
WATSON, ARE NOT ENGAGED IN INTERSTATE OR FOREIGN COMMERCE. 

COMMERCE MEANS MORE THAN COMMUNICATION.  THE WORD "IS THE EQUIVALENT
OF THE PHRASE 'INTERCOURSE FOR THE PURPOSES OF TRADE.'"  CARTER V.
CARTER COAL CO., 298 U.S. 238, 303. 

BASICALLY, THE ASSOCIATED PRESS IS AN EXCHANGE OF NEWS SYSTEM AND
NOTHING MORE.  EVEN IF THIS EXCHANGE WERE THE EQUIVALENT OF A SALE, IT
WOULD NOT AMOUNT TO "TRADE," BECAUSE THE ASSOCIATED PRESS DOES NOT
EXCHANGE NEWS WITH THE PUBLIC, BUT ONLY WITH ITS OWN MEMBERS AND OTHER
NEWS AGENCIES.  PRIVATE OR INTRACORPORATE EXCHANGE IS NOT INTERSTATE
COMMERCE.  SEE PIPE LINE CASES, 234 U.S. 548, 561-562; HOPKINS V.
UNITED STATES, 171 U.S. 578, 603; ANDERSON V. UNITED STATES, 171 U.S.
604, 612.  DISTINGUISHING:  INTERNATIONAL TEXTBOOK CO. V. PIGG, 217
U.S. 91; INDIANA FARMER'S GUIDE PUB. CO. V. PRAIRIE FARMER PUBLISHING
CO., 293 U.S. 268, 276. 

IT IS WELL SETTLED THAT THE REGULATION OF SO MUCH OF A BUSINESS AS
CONSTITUTES INTERSTATE COMMERCE CANNOT BE EXTENDED TO EMBRACE THE
REST.  FIRST EMPLOYERS' LIABILITY CASES, 207 U.S. 463, 502; RAILROAD
RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330; UNITED STATES V.
CHICAGO, M., ST. P. & P.R. CO., 282 U.S. 311, 327; CF. WESTERN UNION V.
KANSAS, 216 U.S. 1. 

THE BUSINESS OF THE ASSOCIATED PRESS IN ITS NEW YORK OFFICE CONSISTS
OF TWO DISTINCT FUNCTIONS, NAMELY, PRODUCTION AND TRANSMISSION. 
EDITORIAL EMPLOYEES ARE ENGAGED EXCLUSIVELY IN PRODUCTION.  IN THIS
SENSE THE ANALOGY IS EXACT BETWEEN THESE EMPLOYEES AND THE EMPLOYEES OF
A MANUFACTURING PLANT ENGAGED IN TRANSFORMING THE RAW MATERIALS INTO
THE COMPLETED ARTICLE.  THE SPEED OF THEIR PRODUCTION, THE SHORTNESS OF
THE INTERVAL BETWEEN PRODUCTION AND TRANSMISSION, DO NOT CHANGE THE
ESSENTIAL CHARACTER OF EITHER FUNCTION.  UTAH POWER & LIGHT CO. V.
PFOST, 286 U.S. 165.  SEE FIRST EMPLOYERS' LIABILITY CASES, 207 U.S.
463, 502. 

IN THE SO-CALLED "THROAT," "CURRENT" OR "FLOW" OF COMMERCE CASES THE
PERSONS AND THINGS REGULATED WERE NECESSARY AGENCIES OF INTERSTATE
COMMERCE, AFFECTED WITH A NATIONAL PUBLIC INTEREST, AND THEREFORE
SUBJECT TO THE REGULATIONS IN QUESTION, WHICH RELATED TO MATTERS IN,
DIRECTLY AFFECTING, OR INEXTRICABLY INTERMINGLED WITH, INTERSTATE
COMMERCE.  FURTHERMORE, THE "FLOW" CASES ADVANCE NO NEW DOCTRINE, BUT
ONLY HOLD THAT CONGRESS MAY PROPERLY KEEP CERTAIN PERSONS FROM
OBSTRUCTING OR CLOSING THE AVENUES OF COMMERCE TO OTHER PERSONS. 
LIKEWISE, EVEN WHEN CONGRESS DOES NOT ACT, THE INDIVIDUAL STATES ARE
THEMSELVES PROHIBITED FROM OBSTRUCTING, BURDENING, OR DISCRIMINATING
AGAINST INTERSTATE COMMERCE.  CF. TAGG BROS. & MOORHEAD V. UNITED
STATES, 280 U.S. 420; CARTER V. CARTER COAL CO., 298 U.S. 238, 305. 

THE RAILROAD CASES.  SUCH REGULATION AS CONGRESS HAS ATTEMPTED OF THE
RELATION BETWEEN EMPLOYER AND EMPLOYEE ON THE RAILROADS IS BOTTOMED ON
THE FACT THAT THE RAILROADS ARE THE ESSENTIAL INSTRUMENTALITIES BY
WHICH INTERSTATE COMMERCE IS CARRIED ON AND MAY BE COMPELLED TO FURNISH
SAFE AND CONTINUOUS SERVICE OF TRANSPORTATION.  RAILROAD RETIREMENT
BOARD V. ALTON R. CO., 295 U.S. 330, 376.  EXTENSIVE AS THE POWER OF
CONGRESS OVER THE RAILROADS MAY BE, THE REGULATION OF THE EMPLOYER
EMPLOYEE RELATION ON RAILROADS HAS NEVER BEEN PERMITTED TO REACH BEYOND
(A) THE REMOVAL OF ACTUAL OR IMMEDIATELY THREATENED OBSTRUCTIONS TO
INTERSTATE TRANSPORTATION SERVICE, OR (B) OBVIOUS MEASURES FOR THE
PROMOTION OF THE SAFETY OF SUCH SERVICE.  EMPLOYERS' LIABILITY CASES,
207 U.S. 463; ADAIR V. UNITED STATES, 208 U.S. 161; MONDOU V. NEW YORK,
N.H. & H.R. CO., 223 U.S. 1; WILSON V. NEW, 243 U.S. 332. 

THE MERE CIRCUMSTANCE OF ENGAGING IN INTERSTATE COMMERCE IS NOT
DECISIVE.  THE TWO ALL IMPORTANT CONSIDERATIONS ARE (1) THE DUTY OF
BOTH EMPLOYER AND EMPLOYEE TO RENDER THE PUBLIC REASONABLE
TRANSPORTATION SERVICE, AND (2) THE OBVIOUSLY DIRECT CONNECTION BETWEEN
THE ATTEMPTED REGULATION AND THE PERFORMANCE OF THAT DUTY.  CF.
PENNSYLVANIA R. CO. V. LABOR BOARD, 261 U.S. 72, 85; PENNSYLVANIA
RAILROAD SYSTEM V. PENNSYLVANIA R. CO., 267 U.S. 203, 217. 

IN TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548, IT WAS HELD
THAT THE RAILWAY LABOR ACT OF 1926, UNLIKE ITS PREDECESSOR, IMPOSED
CERTAIN DEFINITE OBLIGATIONS ENFORCEABLE BY JUDICIAL PROCEEDINGS, THE
"OUTSTANDING FEATURE" BEING THE PROVISION FOR AN ENFORCEABLE AWARD. 
THE PROVISION FOR FREE DESIGNATION OF REPRESENTATIVES "FOR THE PURPOSES
OF THIS ACT," WAS UPHELD AS FORMING AN INTEGRAL PART OF THE ARBITRATION
SCHEME WHICH CONGRESS HAD DEVISED IN THE EXERCISE OF ITS POWER TO
"FACILITATE THE AMICABLE SETTLEMENT OF DISPUTES WHICH THREATEN THE
SERVICE OF THE NECESSARY AGENCIES OF INTERSTATE TRANSPORTATION."  THE
REINSTATEMENT OF EMPLOYEES DISCHARGED DURING A PENDING CONTROVERSY WAS
REQUIRED, HOWEVER, NOT IN OBEDIENCE TO ANY EXPRESS MANDATE OF THE ACT,
BUT TO PURGE THE RAILROAD OF A CONTEMPT OF THE COURT'S INJUNCTION. 
THAT CASE HAS NO BEARING ON THE POWER OF CONGRESS TO ENFORCE COLLECTIVE
BARGAINING, OR TO COMPEL THE REINSTATEMENT OF DISCHARGED EMPLOYEES, IN
A PRIVATE BUSINESS. 

THE DOCTRINE OF THE ADAIR CASE WAS RECOGNIZED BY THE COURT IN THE
TEXAS & NEW ORLEANS CASE IN POINTING OUT THAT ITS PRINCIPLE WAS
INAPPLICABLE, BECAUSE THE ENFORCEMENT OF VOLUNTARY ARBITRATION HAD
NOTHING TO DO WITH THE "NORMAL" RIGHT OF AN EMPLOYER TO DISCHARGE HIS
EMPLOYEES AT WILL.  BY THE "NORMAL EXERCISE OF THE RIGHT OF THE CARRIER
TO SELECT ITS EMPLOYEES OR TO DISCHARGE THEM," THE COURT OBVIOUSLY
REFERRED TO THE DISCHARGE OR SELECTION OF EMPLOYEES (1) WHEN THERE WAS
NO ACTUAL DISPUTE, (2) WHEN THERE WAS NO CONTROVERSY PENDING BEFORE A
MEDIATION BOARD, AND (3) WHEN THE DISCHARGE WAS NOT IN FLAGRANT
DISOBEDIENCE OF AN INJUNCTION PROPERLY ISSUED BY A COURT OF EQUITY. 

THE DECISION IN THE RAILROAD PENSION CASE, 295 U.S. 330, REFERRED TO
THE FACT THAT THE TEXAS CASE DID NOT INTERFERE WITH "NORMAL" RIGHTS. 
FURTHERMORE, THE RAILROAD PENSION CASE LEAVES NO DOUBT ABOUT THE
LIMITED APPLICATION OF THE TEXAS CASE, AS WELL AS ALL CASES SUSTAINING
THE POWER OF CONGRESS TO INFLUENCE OR CONTROL THE RELATION OF EMPLOYER
AND EMPLOYEE IN ANY MANNER.  THIS LIMITED APPLICATION IS CONCLUSIVELY
SHOWN, NOT ONLY BY THE MAJORITY OPINION, BUT ALSO BY THE DISSENTING
OPINION OF THE CHIEF JUSTICE. 

THE DECISION OF THIS COURT IN THE RAILROAD PENSION CASE STANDS FOR
THE PROPOSITION, THEREFORE, THAT EVEN AS TO THE RAILROADS ANY
COMPULSORY CONTROL BY CONGRESS OF EMPLOYER-EMPLOYEE RELATIONS, NO
MATTER WHAT IT MAY BE, IS VOID UNLESS IT HAS AN OBVIOUS AND DIRECT
BEARING ON THE OBLIGATIONS OF PUBLIC SERVICE INCIDENT TO THE CALLING OF
THE RAILROADS.  THE REGULATION IS TOO REMOTELY CONNECTED WITH
TRANSPORTATION SERVICE IF IT MERELY RELATES TO THE CAUSES OF
DISRUPTIONS, SUCH AS, FOR EXAMPLE, THE MALCONTENT OF THE PERSONS
RENDERING THE SERVICE.  TO HAVE A DIRECT EFFECT UPON INTERSTATE
COMMERCE THE REGULATION OF THE EMPLOYMENT RELATION MUST AT LEAST, AS
WAS THE CASE WITH THE RAILWAY LABOR ACT OF 1926, FACILITATE THE
AMICABLE SETTLEMENT OF DISPUTES WHICH THREATENED THE SERVICE OF THE
NECESSARY AGENCIES OF INTERSTATE TRANSPORTATION AND TENDED TO PREVENT
INTERRUPTIONS OF SERVICE.  IN OTHER WORDS, THE DISPUTE MUST BE ACTUAL,
NOT CONJECTURAL; THE DISRUPTION OF TRANSPORTATION SERVICE MUST BE
PRESENTLY THREATENED THEREBY, NOT REMOTELY POSSIBLE. 

THE STRIKE, OR ANTI-TRUST CASES.  ALL OF THE STRIKE CASES, FOLLOWING
THE SECOND CORONADO CASE, 268 U.S. 295, RELATED EXCLUSIVELY TO THE
REMOVAL OF EXISTING, INTENTIONAL OBSTRUCTIONS TO INTERSTATE COMMERCE;
THE INJUNCTIONS WERE NOT GRANTED EXCEPT WHERE THE ACTUAL INTENT OR
PURPOSE OF THE STRIKERS WAS TO PREVENT THE FLOW OF GOODS ACROSS STATE
LINES.  THE SAME IS TRUE AS TO THE REGULATION OF ANY COMBINATION OR
CONSPIRACY UNDER THE ANTI-TRUST LAWS.  FOR THIS REASON THE STRIKE CASES
DO NOT PROPERLY FALL INTO THE CATEGORY OF REGULATIONS OF THE EMPLOYER
EMPLOYEE RELATIONSHIP, BUT RELATE SOLELY TO THE REMOVAL OF ACTUAL AND
EXISTING OBSTRUCTIONS TO INTERSTATE COMMERCE IN THE FORM OF A
COMBINATION OR CONSPIRACY IN RESTRAINT OF TRADE. 

AS IN THE "FLOW" OF COMMERCE CASES, HERETOFORE DISCUSSED, IT SHOULD
BE NOTED THAT THE "STRIKE" CASES INVOLVE A REGULATION OF A IN ORDER TO
KEEP HIM FROM OBSTRUCTING B OR DEPRIVING HIM OF THE FACILITIES TO WHICH
HE IS ENTITLED.  THERE IS NO INDICATION WHATEVER IN THEM THAT AN
EMPLOYER MAY BE REGULATED TO KEEP HIM FROM OBSTRUCTING HIMSELF. 

THE ACT VIOLATES THE FIFTH AMENDMENT BECAUSE ITS TERMS ARE ARBITRARY,
UNREASONABLE AND CAPRICIOUS, HAVING NO REAL AND SUBSTANTIAL RELATION TO
THE ACCOMPLISHMENT OF LEGITIMATE ENDS. 

THE ENFORCEMENT BY STATUTORY COMPULSION OF THE COLLECTIVE ACTION
WHICH THE ACT PRESCRIBES IS AN ARBITRARY ENCROACHMENT UPON THE
CONSTITUTIONAL RIGHTS OF THE UNWILLING EMPLOYER AND HIS NON-CONSENTING
EMPLOYEES. 

EXCEPTIONAL CIRCUMSTANCES BEING ABSENT, THE STATUTORY COMPULSION IS
ARBITRARY PER SE. 

THE ACT EVEN GOES BEYOND THE COMPULSORY ENFORCEMENT OF COLLECTIVE
ACTION IN GENERAL IN THAT IT IS DESIGNED TO COMPEL THE UNIVERSAL
ACCEPTANCE, BY BOTH EMPLOYER AND EMPLOYEE, OF A RIGID AND HITHERTO
UNACCEPTED CONCEPTION OF COLLECTIVE ACTION WHICH, CARRIED TO ITS
LOGICAL CONCLUSION, COMPLETELY DESTROYS THE RIGHTS OF THE EMPLOYER AND
HIS NON-CONSENTING EMPLOYEES.  INSTEAD OF SEEKING A REASONABLE BALANCE
BETWEEN EMPLOYER RIGHTS AND THE RIGHTS OF INDIVIDUAL EMPLOYEES ON THE
ONE HAND, AND THE COLLECTIVE RIGHTS OF EMPLOYEES ON THE OTHER, THE ACT
FOSTERS THE DOMINATION OF ALL INDUSTRY BY LABOR UNIONS.  THIS
DOMINATION IS SOUGHT, IRRESPECTIVE OF HARSH, ONE-SIDED, AND
DISCRIMINATORY RESULTS, AS THE ONE AND ONLY METHOD OF ADJUSTING
INEQUALITY OF BARGAINING BETWEEN EMPLOYER AND EMPLOYEE.  THAT SUCH AN
ARBITRARY PROGRAM HAS BEEN ADOPTED BY THE ACT WOULD SEEM TO BE APPARENT
FROM NO MORE THAN A CURSORY CONSIDERATION OF THE PROVISIONS OF SECS. 8
AND 9.    THE ACT DELIBERATELY AND OPENLY FOSTERS THE CLOSED UNION
SHOP.  THE COMPANY UNION OR ANY OTHER EMPLOYER-EMPLOYEE COOPERATION IS
OUTLAWED.  THE UNREASONING SWEEP OF THE PROHIBITION IN SEC. 8(2) IS
MERELY EMPHASIZED BY THE PROVISO THAT THE EMPLOYER MAY CONFER WITH HIS
EMPLOYEES DURING WORKING HOURS "SUBJECT TO RULES AND REGULATIONS MADE
AND PUBLISHED BY THE BOARD," BUT NOT OTHERWISE.  IRRESPECTIVE OF
WHETHER OR NOT THE COMPANY UNION IS INHERENTLY EVIL, IT WOULD SEEM ON
PRINCIPLE ALONE THAT NO LAW COULD REMAIN REASONABLE AND AT THE SAME
TIME DEPRIVE BOTH EMPLOYER AND EMPLOYEE OF THE ADVANTAGES OF
FRIENDSHIP, MUTUAL LOYALTY AND WISE COOPERATION. 

SUBDIVISION (3) OF SEC. 8 REENACTS THOSE VERY RESTRICTIONS UPON THE
EMPLOYER WHICH WERE DECLARED ARBITRARY AND INVALID IN THE ADAIR AND
COPPAGE CASES.  THE PROHIBITION HERE, MOREOVER, EXTENDS TO TENURE OF
EMPLOYMENT AS WELL AS TO ANY DISCRIMINATION IN HIRE, DISCHARGE, OR
EMPLOYMENT CONTRACTS.  ACCORDINGLY, AN EMPLOYER MUST ALWAYS FIND
REASONS WHICH WOULD SAFELY WITHSTAND THE SCRUTINY OF THE BOARD BEFORE
HE EVEN WENT SO FAR AS TO DEMOTE, REDUCE THE SALARY, OR EVEN CHANGE THE
ROUTINE EMPLOYMENT OF A UNION MAN.  BY THE SAME TOKEN, IT WOULD SEEM
THAT HE MUST CAREFULLY EXAMINE HIS CONSCIENCE AND HIS RECORDS BEFORE HE
PROMOTES OR ENCOURAGES A NON-UNION MAN.  THESE PROVISIONS AGAINST
DISCRIMINATION CONTAINED IN SEC. 8(3) VIRTUALLY PLACE UNION MEMBERS IN
A STATUS SECURE AGAINST DISCHARGE OR DEMOTION HOWEVER DESERVED.  SEE
ROSENTHAL-ETTLINGER CO. V. SCHLOSSBERG, 266 N.Y.S. 762. 

THE ACT EXPRESSLY SANCTIONS DISCRIMINATORY CLOSED UNION SHOP
AGREEMENTS. 

THE ACT DOES NOT PERMIT FREEDOM IN COLLECTIVE BARGAINING BY
EMPLOYEES.  ON THE CONTRARY, COLLECTIVE BARGAINING IS PROHIBITED EXCEPT
UPON RIGID CONDITIONS WHICH ARE BOTH RESTRICTIVE AND DISCRIMINATORY. 

THE ONLY PERMISSIBLE BARGAINING UNIT IS THE ONE SELECTED AS
APPROPRIATE BY THE BOARD, WHETHER IT BE "THE EMPLOYER UNIT, CRAFT UNIT,
PLANT UNIT, OR SUBDIVISION THEREOF."  SEC. 9(B).  THE BOARD'S
DISCRETION IN MAKING THIS SELECTION IS VIRTUALLY UNLIMITED.  THE
EMPLOYER AND THE INDIVIDUAL EMPLOYEES ARE UTTERLY HELPLESS EXCEPT IN SO
FAR AS THEY ARE ABLE TO INFLUENCE THE BOARD IN THE EXERCISE OF ITS
UNLIMITED POWER OF DISCRIMINATION. 

THE SELECTION OF THE UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE
BARGAINING IS, HOWEVER, OF THE UTMOST CONCERN TO BOTH EMPLOYEE AND
EMPLOYER, PARTICULARLY BECAUSE THERE CAN BE BUT ONE, "EXCLUSIVE,"
REPRESENTATIVE FOR THE ENTIRE UNIT. 

FURTHERMORE, THE MINORITY IN THE DESIGNATED UNIT ARE NOT ONLY
DEPRIVED OF THE POWER TO CONTRACT WITH THEIR EMPLOYER, EITHER
INDIVIDUALLY OR THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, BUT THEY
ARE ALSO BOUND BY THE TERMS OF ANY AGREEMENT WHICH THE EMPLOYER MAKES
WITH THE REPRESENTATIVES OF THE MAJORITY.  SEE CARTER V. CARTER COAL
CO., 298 U.S. 238, 311. 

UNDER THIS ACT IT IS POSSIBLE, EITHER BY GERRYMANDERING OF BARGAINING
UNITS, OR BY RULINGS ON ELECTIONS, TO SUBJECT THE MAJORITY EMPLOYEES TO
THE WILL OF THE MINORITY.  SEE BENDIX PRODUCTS CORP. V. BEMAN, 14
F.SUPP.  58, 66. 

EMPLOYER "TO REFUSE TO BARGAIN COLLECTIVELY WITH THE REPRESENTATIVES OF
HIS EMPLOYEES, SUBJECT TO THE PROVISIONS OF SEC. 9(A)."  THE BOARD HAS
INTERPRETED THIS AS IMPOSING UPON THE EMPLOYER AN AFFIRMATIVE DUTY TO
BARGAIN AND NEGOTIATE WITH THE EXCLUSIVE REPRESENTATIVES OF THE UNIT
WHICH IT PRESCRIBES.  THUS, WHEN A LABOR ORGANIZATION, SUCH AS THE
AMERICAN NEWSPAPER GUILD, DEMANDS A CLOSED SHOP, THE EMPLOYER MAY NOT
FLATLY REFUSE BUT MUST SEEK TO REACH AN AGREEMENT WITH THE UNION.  AND,
IN THE FINAL ANALYSIS, IT IS LEFT TO THE BOARD TO DETERMINE FOR THE
EMPLOYER WHETHER OR NOT THE CLOSED SHOP DEMAND OF THE UNION IS TO BE
ACCEPTED. 

MUTUALITY OF CONTRACT IS TOTALLY LACKING IN THAT THE EMPLOYER, WHO IS
THE ONLY PARTY UNDER AN OBLIGATION TO "BARGAIN," IS LIKEWISE THE SOLE
PARTY BOUND BY AN AGREEMENT.  THE EMPLOYEES ARE NOT BOUND BY FORCE OF
ANY PROVISION IN THE ACT (WHICH SPECIFICALLY PRESERVES THE RIGHT TO
STRIKE); NOR ARE THEY BOUND AS A MATTER OF CONTRACT, SINCE THEY MAY
REFUSE TO WORK FROM THE INSTANT A "BARGAIN" IS REACHED. 

THE "COLLECTIVE BARGAIN" WHICH THE ACT COMMANDS IS NOTHING MORE THAN
"COMPULSORY UNILATERAL ARBITRATION."  SEE BENDIX PRODUCTS CORP. V.
BEMAN, 14 F.SUPP.  58.  THIS "COMPULSORY UNILATERAL ARBITRATION" IS,
THEREFORE, MUCH MORE ARBITRARY THAN THE COMPULSORY MUTUAL ARBITRATION
UNANIMOUSLY DECLARED INVALID IN WOLFF PACKING CO. V. INDUSTRIAL COURT,
262 U.S. 522, S.C., 267 U.S. 552. 

IT WOULD SEEM TO BE FULLY DEMONSTRATED THAT THE ACT DOES NOT SEEK TO
PROTECT COLLECTIVE BARGAINING AND COLLECTIVE ACTION ON THE PART OF
EMPLOYEES, BUT THAT IT UNQUESTIONABLY ATTEMPTS TO PLACE ALL LABOR
RELATIONS IN AN IRON VISE BY REDUCING EMPLOYMENT TO A CLOSED UNION SHOP
BASIS.  THIS IS SHOWN NOT ONLY BY EXPRESS SANCTION OF CLOSED UNION SHOP
AGREEMENTS, SEC. 8(3), BUT BY THE REQUIREMENT THAT THE EMPLOYER MUST
BARGAIN, SEC. 8(5), WITH THE REPRESENTATIVES OF THE UNIT SELECTED BY
THE BOARD, SEC. 9(B), WHO, THOUGH HAVING THE POWER TO BIND OR EXCLUDE
ALL, SEC. 9(A), MAY NOT IN FACT REPRESENT THE INTERESTS OF ALL THE
EMPLOYEES IN SUCH UNIT. 

THE METHODS OF ENFORCEMENT WHICH THE ACT ADOPTS ARE THEMSELVES
ARBITRARY AND UNREASONABLY INTRUSIVE.  INTRUSIVE AND UNLIMITED POWER IS
CONFERRED UPON THE BOARD. 

THE POWER TO COMPEL EMPLOYERS TO REINSTATE DISCHARGED EMPLOYEES WITH
BACK PAY VIOLATES THE SEVENTH AMENDMENT AS WELL AS THE FIFTH. 

IT HAS LONG BEEN A MAXIM OF COURTS OF EQUITY THAT CONTRACTS OF
PERSONAL SERVICE WILL NOT BE SPECIFICALLY ENFORCED.  THE REASON FOR
THIS HAS BEEN THE RECOGNITION THAT COMPULSORY PERSONAL SERVICE IS NOT
ONLY INTOLERABLE BUT THAT IT IS SELDOM SATISFACTORY FROM THE POINT OF
VIEW OF EITHER PARTY.  IT IS TRUE THAT IN TEXAS & N.O.R. CO. V. RAILWAY
CLERKS, 281 U.S. 548, REINSTATEMENT OF EMPLOYEES, DISCHARGED IN
DEFIANCE OF AN INJUNCTION, WAS ORDERED AS A PROPER METHOD OF PURGING
THE RAILROAD OF CONTEMPT.  THAT WAS AN UNUSUAL SITUATION WHERE THE
COURT DEEMED SUCH EXTREME ACTION NECESSARY IN ORDER TO RESTORE THE
STATUS QUO.  IT DOES NOT FOLLOW THAT LEGISLATION MAY SUPERSEDE COURT
ACTION.  YET THIS, IN SUBSTANCE, IS WHAT SEC. 10(C) ATTEMPTS TO
ACCOMPLISH. 

HERE THE ASSOCIATED PRESS MUST EMPLOY A PERSON WHOM IT DOES NOT
WANT.  NEITHER THE SUBJECT, THE TERMS, NOR THE DURATION OF THE CONTRACT
ARE OF ITS OWN CHOOSING.  THE ASSOCIATED PRESS MUST REFRAIN FROM
EMPLOYING OTHER PERSONS MORE TO ITS LIKING IN ORDER TO LEAVE ROOM FOR
WATSON, OR MAY EVEN BE COMPELLED TO DISCHARGE SOME NON-UNION EDITORIAL
EMPLOYEE IN ORDER TO MAKE ROOM FOR WATSON.  AND, PRESUMABLY, THE BOARD
WILL MAINTAIN A CONSTANT SURVEILLANCE OVER WATSON AND THE ASSOCIATED
PRESS, IF HE IS REINSTATED, TO BE SURE THAT HE HAS BEEN REINSTATED "TO
HIS FORMER POSITION, WITHOUT PREJUDICE TO ANY RIGHTS OR PRIVILEGES
PREVIOUSLY ENJOYED BY HIM."  NATIONAL LABOR RELATIONS BOARD V. MACKAY
RADIO & TELEGRAPH CO., 87 F.(2D) 611. 

IT WOULD SEEM THAT, EVEN IF THE DISCHARGE WERE WRONGFUL, THE PROPER
AND ONLY REASONABLE REPARATION WOULD BE TO PERMIT WATSON TO SUE IN A
COURT OF LAW FOR DAMAGES.  THE ORDER OF REINSTATEMENT, HOWEVER, WOULD
NOT ONLY COMPEL THE ASSOCIATED PRESS UNWILLINGLY TO ACCEPT AND PAY FOR
THE PERSONAL SERVICES OF WATSON AT THE RATE IN FORCE AT THE TIME OF HIS
DISCHARGE, BUT IT ALSO GRANTS WATSON, WITHOUT JURY TRIAL, AN AWARD OF
MONEY DAMAGES IN EXCESS OF $2,000.  THIS IT WOULD SEEM IS DONE IN
FLAGRANT VIOLATION OF THE SEVENTH AMENDMENT WHICH GUARANTEES THE RIGHT
TO TRIAL BY JURY.  SEE CASE LAST CITED. 

THE ACT, IN ITS APPLICATION TO THE ASSOCIATED PRESS, VIOLATES THE
FIRST AMENDMENT WHICH GUARANTEES TO CITIZENS FREEDOM OF SPEECH AND
FREEDOM OF THE PRESS. 

WATSON MUST BE REEMPLOYED BY THE ASSOCIATED PRESS AGAINST ITS WILL,
AS AN EDITORIAL WORKER IN COMPILING AND EDITING NEWS FOR PUBLICATION IN
AMERICAN NEWSPAPERS.  THIS IS ORDERED IRRESPECTIVE OF HIS PRESENT
CAPACITY OR QUALIFICATION OR HIS ACCEPTABILITY BY HIS EMPLOYER AND
IRRESPECTIVE OF WHATEVER BIAS HE MAY HAVE ACQUIRED BY REASON OF HIS
DISCHARGE. 

IT IS ASSERTED AS THE BASIS OF JURISDICTION IN THIS CASE THAT THE
QUESTION OF WATSON'S DISCHARGE AND REINSTATEMENT IS A MATTER DIRECTLY
AFFECTING THE INTERSTATE COMMERCE ACTIVITIES OF THE ASSOCIATED PRESS
AND THAT, AS CONGRESS MAY REGULATE THOSE INTERSTATE ACTIVITIES, SO IT
MUST NECESSARILY HAVE THE POWER TO REGULATE ANY MATTERS WHICH DIRECTLY
AFFECT THEM.  THE SOLE BASIS FOR JURISDICTION IN REGARD TO WATSON'S
EMPLOYMENT MUST, THEREFORE, STAND OR FALL UPON THE POWER OF CONGRESS TO
REGULATE THE ACTIVITIES IN WHICH THE ASSOCIATED PRESS IS ENGAGED.  THAT
IS TO SAY, THE ORDER TO REINSTATE WATSON PRESUPPOSES, AND IS WHOLLY
DEPENDENT UPON, THE POWER TO REGULATE THE GATHERING, PRODUCTION, AND
DISSEMINATION OF NEWS FOR THE AMERICAN PRESS.  NEWS AND INTELLIGENCE
ARE, IN DISREGARD OF THE FIRST AMENDMENT, TREATED AS ORDINARY ARTICLES
OF COMMERCE, SUBJECT TO FEDERAL SUPERVISION AND CONTROL.  LOGICALLY,
AND ON PRINCIPLE ALONE, THE NATIONAL LABOR RELATIONS ACT, AS APPLIED TO
THE ASSOCIATED PRESS, IS THUS AN INFRINGEMENT UPON THAT FREEDOM OF
EXPRESSION WHICH IS THE ESSENCE OF FREE SPEECH AND OF A FREE PRESS. 

FURTHERMORE, THE ACT, AS APPLIED IN THIS CASE, ACTUALLY DESTROYS THE
INDEPENDENCE OF THE PRESS OF THIS COUNTRY.  CAN FREEDOM AND
INDEPENDENCE OF THE PRESS BE MAINTAINED IF A FEDERAL BUREAU MAY DICTATE
TO THE AMERICAN NEWSPAPERS THE PERSONS THEY EMPLOY TO PREPARE THEIR
NEWS REPORTS?  HOW CAN IMPARTIALITY AND INDEPENDENCE OF REPORTING BE
MAINTAINED UNDER SUCH A SYSTEM OF ADMINISTRATIVE SUPERVISION?  HOW CAN
ACCURACY, INDEPENDENCE AND IMPARTIALITY SURVIVE A DELIBERATE ATTEMPT BY
THE GOVERNMENT TO IMPOSE UPON THE ASSOCIATED PRESS A REQUIREMENT THAT
ITS NEWS EDITORS BE UNION MEN? 

INTERFERENCE WITH THE INTERNAL MANAGEMENT OF ANY PRIVATE CONCERN IS
INCONSISTENT WITH DUE PROCESS OF LAW.  WHERE, HOWEVER, THE PRIVATE
CONCERN IS NOT DEALING IN ORDINARY COMMERCIAL COMMODITIES BUT IS
ENGAGED EXCLUSIVELY IN THE FORMULATION AND DISSEMINATION OF NEWS FOR
THE PRESS, SUCH INTERFERENCE IS STILL MORE INTOLERABLE IN THAT IT
CONSTITUTES AN ENCROACHMENT UPON THE MANAGEMENT AND POLICY OF THE PRESS
ITSELF.  WHENEVER A UNION EDITORIAL EMPLOYEE OF THE ASSOCIATED PRESS IS
DISCHARGED, A CASE IS AT ONCE MADE FOR THE LABOR BOARD BY THE CLAIM,
WHETHER RIGHTLY OR NOT, THAT MEMBERSHIP IN A LABOR ORGANIZATION HAS
BEEN DISCOURAGED OR THAT THE EMPLOYEE HAS BEEN DISCRIMINATED AGAINST. 
THE QUESTION OF EDITORIAL PERSONNEL THEN BECOMES A QUESTION FOR THE
BOARD TO DETERMINE.  AND THE MANAGEMENT OF THE EDITORIAL AFFAIRS OF
THIS GREAT NEWS SERVICE OF THE AMERICAN PRESS, IN THE GATHERING AND
PREPARATION OF NEWS, IS DISPLACED BY THE LABOR BOARD WHICH CONGRESS HAS
CREATED. 

FREEDOM OF THE PRESS AND OF SPEECH, AS GUARANTEED BY THE FIRST
AMENDMENT, MEANS MORE THAN FREEDOM FROM CENSORSHIP BY GOVERNMENT; IT
MEANS THAT FREEDOM OF EXPRESSION MUST BE JEALOUSLY PROTECTED FROM ANY
FORM OF GOVERNMENTAL CONTROL OR INFLUENCE.  NEAR V. MINNESOTA, 283 U.S.
697. 

FREEDOM OF EXPRESSION, IT WOULD SEEM, IS AS PRECIOUS AS EITHER DUE
PROCESS OR THE EQUAL PROTECTION OF LAW.  GROSJEAN V. AMERICAN PRESS
CO., 297 U.S. 233; DEJONGE V. OREGON, 299 U.S. 353. 

THE POWER OF CONGRESS IS SUFFICIENT TO COPE WITH PROBLEMS RAISED BY
EACH NEW FORM OF INTERCOMMUNICATION AMONG THE STATES.  PENSACOLA
TELEGRAPH CO. V. WESTERN UNION, 96 U.S. 1, 9-10; GIBBONS V. OGDEN, 9
WHEAT.  1, 189.  ASSUMING, ARGUENDO, THAT PETITIONER DOES NOT SELL
NEWS, THE FACT IS NOT MATERIAL ON THE QUESTION OF CONGRESSIONAL
AUTHORITY.  CAMINETTI V. UNITED STATES, 242 U.S. 470; UNITED STATES V.
CALIFORNIA, 297 U.S. 175, 183. 

THE BOARD WAS CORRECT IN FINDING THAT THE EDITORIAL EMPLOYEES AT THE
NEW YORK OFFICE WERE EITHER IN, OR INTIMATELY AND DIRECTLY CONNECTED
WITH, INTERSTATE COMMERCE. 

SUBSECTIONS (1) AND (3) OF SEC. 8 BEAR A REASONABLE AND DIRECT
RELATION TO THE PROTECTION OF INTERSTATE COMMERCE FROM INDUSTRIAL
STRIFE, AND ARE, CONSEQUENTLY, VALID.  TEXAS & N.O.R. CO. V. RAILWAY
CLERKS, 281 U.S. 548; RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295
U.S. 330, 369.  DISTINGUISHING:  CARTER V. CARTER COAL CO., 298 U.S.
238, 308. 

CONGRESS MAY CONTROL EVEN LOCAL ACTIVITY TO ASSIST IN REMOVING A
BURDEN OR INJURY TO INTERSTATE COMMERCE.  SCHECHTER POULTRY CORP. V.
UNITED STATES, 295 U.S. 495, 544. 

DECISIONS OF THIS COURT, INVESTIGATIONS OF NUMEROUS COMMISSIONS,
EXPERIENCE OF THE GOVERNMENT, AND FINDINGS OF CONGRESS IN THIS ACT, ARE
IN ACCORD IN THE CONCLUSION THAT THE PROVISIONS OF SUBSECTIONS (1) AND
(3) OF SEC. 8, WILL NOT ONLY ELIMINATE THE CAUSES OF INDUSTRIAL STRIFE
ARISING FROM ATTEMPTS OF EMPLOYEES TO ORGANIZE AND ESTABLISH THE
PROCEDURE OF COLLECTIVE BARGAINING, BUT WILL ALSO, BY AFFORDING A BASIS
FOR AMICABLE ADJUSTMENT, REDUCE INDUSTRIAL STRIFE ARISING OUT OF THE
SUBSTANTIVE TERMS OF THE EMPLOYMENT CONTRACT. 

WE SUBMIT, THEREFORE, THAT THESE SUBSECTIONS WERE PROPERLY APPLIED TO
PETITIONER IN THIS CASE.  INDEED, THE DECISION IN TEXAS & N.O.R. CO. V.
RAILWAY CLERKS, 281 U.S. 548, SEEMS CONCLUSIVE.  MOREOVER, APART FROM
THAT CASE, INDUSTRIAL STRIFE IN PETITIONER'S NEW YORK CITY OFFICE WOULD
SERIOUSLY AND DIRECTLY BURDEN INTERSTATE COMMERCE, AND INVOLVE, AT
LEAST, DIFFICULT AND EXPENSIVE REROUTING OF NEWS, AND AT MOST, A
PARALYSIS OF MUCH OF PETITIONER'S SYSTEM.  FURTHERMORE, THE WORK IS
CARRIED ON AT A "THROAT" OF A WELL-DEFINED "FLOW" OR "STREAM" OF
COMMERCE, AND IS THEREFORE EVEN MORE CLEARLY WITHIN THE FEDERAL POWER
TO REGULATE AND CONTROL.  STAFFORD V. WALLACE, 258 U.S. 495; TAGG BROS.
& MOORHEAD V. UNITED STATES, 280 U.S. 420; CHICAGO BOARD OF TRADE V.
OLSEN, 262 U.S. 1. 

FINALLY, EVEN IF IT BE ADMITTED, ARGUENDO, THAT EDITORIAL EMPLOYEES
IN THE NEW YORK OFFICE ARE ENGAGED IN SOME OCCUPATION ANALOGOUS TO
"PRODUCTION" OR "MANUFACTURING," WE SUBMIT THAT THE ACT WAS PROPERLY
APPLIED UNDER THE PRINCIPLES DISCUSSED IN THE BRIEF FOR THE BOARD IN
NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., ANTE,
P. 1.    II.  THE VALIDITY OF THE ORDER OF THE BOARD UNDER THE FIFTH
AMENDMENT IS SETTLED BY TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S.
548.  DISTINGUISHING:  ADAIR V. UNITED STATES, 208 U.S. 161; COPPAGE V.
KANSAS, 236 U.S. 1. 

THE PROVISIONS OF THE ACT ARE REASONABLE AND CONSONANT WITH DUE
PROCESS.  THE PROCEDURAL MACHINERY IS REASONABLE AND WELL ADAPTED TO
ACHIEVE ITS PURPOSE.  THE PROHIBITION ON DISCRIMINATORY DISCHARGES
IMPOSES NO RESTRICTION ON THE NORMAL EXERCISE OF THE EMPLOYER'S RIGHT
TO HIRE AND DISCHARGE EMPLOYEES.  EMPLOYEES HAVE THE RIGHT TO ORGANIZE
FOR THE ADVANCEMENT OF THEIR INTERESTS; SUCH ORGANIZATION IS A VITAL
NECESSITY.  AMERICAN FOUNDRIES V. TRI-CITY COUNCIL, 257 U.S. 184, 209. 
THIS RIGHT IS DESTROYED BY THE UNRESTRICTED FREEDOM OF AN EMPLOYER TO
DISCHARGE EMPLOYEES BECAUSE OF MEMBERSHIP IN A LABOR UNION OR
PARTICIPATION IN ITS AFFAIRS.  THE PRESENT ACT MERELY SAFEGUARDS THE
RECOGNIZED AND ESSENTIAL LIBERTY OF EMPLOYEES BY A LIMITED RESTRICTION
ON THE EMPLOYER'S POWER OF DISCHARGE.  SIMILAR CURTAILMENTS OF
EMPLOYER'S LIBERTY HAVE REPEATEDLY BEEN SUSTAINED BY THIS COURT.  THE
PRINCIPLE UPON WHICH THIS ACT IS BASED HAS BEEN DEVELOPED FROM OVER A
HALF CENTURY OF EXPERIENCE.  IT IS THE ESTABLISHED POLICY OF BOTH
CONGRESS AND MANY OF THE STATES.  THE ACT IS, IN FACT, VERY LIMITED. 
IT DOES NOT COMPEL ORGANIZATION, OR THE "CLOSED SHOP."  IT DOES NOT
INTERFERE WITH THE EMPLOYER'S NORMAL CONDUCT OF HIS BUSINESS.  IT DOES
NOT FIX WAGES OR HOURS, OR PROVIDE FOR COMPULSORY ARBITRATION OF LABOR
DISPUTES.  AND IT DOES NOT WEAKEN ANY OF THE EXISTING LAWS PROTECTING
EMPLOYERS AGAINST ILLEGAL ACTION OF EMPLOYEES OR LABOR ORGANIZATIONS. 
CF. LOCAL NO. 167 V. UNITED STATES, 291 U.S. 293. 

III.  THAT PART OF THE ORDER WHICH REQUIRES RESTITUTION OF LOST PAY
DOES NOT DEPRIVE PETITIONER OF A JURY TRIAL IN VIOLATION OF THE SEVENTH
AMENDMENT.  TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548.  THE
SEVENTH AMENDMENT APPLIES ONLY TO RIGHTS AND REMEDIES AS THEY WERE
GENERALLY KNOWN AND ENFORCED AT COMMON LAW, SHIELDS V. THOMAS, 18 HOW. 
253, 262, AND CONSEQUENTLY HAS NO APPLICATION HERE.  PENNSYLVANIA
FEDERATION V. PENNSYLVANIA R. CO., 267 U.S. 203, 210.  THE ORDER FOR
BACK PAY IS MERELY A SUPPLEMENT TO A DECREE ESSENTIALLY INJUNCTIVE IN
CHARACTER.  CF. CLARK V. WOOSTER, 119 U.S. 232. 

IV.  THE ORDER DOES NOT VIOLATE THE GUARANTEE OF THE FREEDOM OF THE
PRESS.  A VALID STATUTE OF GENERAL APPLICATION DOES NOT BECOME INVALID
WHEN APPLIED TO THE PRESS.  ROBERTSON V. BALDWIN, 165 U.S. 275, 281;
INDIANA FARMER'S GUIDE PUBLISHING CO. V. PRAIRIE FARMER PUBLISHING CO.,
293 U.S. 268.  THE ACT DOES NOT DISCRIMINATE AGAINST THE PRESS, NOR
CONSTITUTE A DEVICE TO LIMIT ITS FREEDOM UNDER THE GUISE OF A
REGULATION OF COMMERCE.  NOR DOES IT CURTAIL THE PRIVILEGE OF
PETITIONER TO DISCHARGE EMPLOYEES WHO EXHIBIT ACTUAL BIAS IN EDITING
THE NEWS.  PETITIONER IS ACCORDINGLY REDUCED TO THE CONTENTION THAT A
MEMBER OF A LABOR ORGANIZATION MUST BE CONCLUSIVELY PRESUMED TO BE
BIASED, A PROPOSITION WHICH IS OBVIOUSLY UNSOUND. 

V. THE APPLICATION OF THE ACT TO PERSONS OTHER THAN PETITIONER, AND
CERTAIN PROVISIONS OF THE ACT OTHER THAN THOSE HERE APPLIED TO
PETITIONER, ARE NOT IN ISSUE IN THE PRESENT CASE.  CONSEQUENTLY, THE
VALIDITY OF THE PRESENT ORDER IS NOT TO BE DETERMINED BY THE VALIDITY
OF THOSE OTHER PROVISIONS OR APPLICATIONS.  IN ANY EVENT, THE
APPLICATIONS AND PROVISIONS OF THE ACT TO WHICH PETITIONER OBJECTS ARE
CLEARLY SEPARABLE. 

THE JURISDICTION OF THE BOARD IS LIMITED BY SEC. 10(A) TO UNFAIR
LABOR PRACTICES "AFFECTING COMMERCE," AS DEFINED IN SEC. 2(7) OF THE
ACT.  SHOULD THE BOARD ERR IN APPLYING THE ACT, THE COURTS WILL CORRECT
THE ERROR BY HOLDING THAT THE ORDER WAS UNAUTHORIZED.  IT IS CLEAR FROM
THE TERMS OF THE ACT AND ITS LEGISLATIVE HISTORY THAT IT WAS NOT
INTENDED TO APPLY BEYOND THE LIMITS OF THE COMMERCE POWER AS JUDICIALLY
DEFINED.  IT CANNOT BE URGED THAT THE ACT IS INVALID BECAUSE IT HAS
BEEN, IN PRACTICE, APPLIED TO ALL INDUSTRY.  THAT CONTENTION IS BASED
UPON A COMPLETE MISAPPREHENSION OF THE FACTS.  UNLIKE THE STATUTES IN
THE TRADE MARK CASES, 100 U.S. 82, AND THE EMPLOYERS' LIABILITY CASES,
207 U.S. 463, THE PRESENT ACT IS APPLICABLE ON ITS FACE ONLY TO MATTERS
THAT ARE WITHIN THE POWER OF CONGRESS. 

NOR IS THE ACT INVALID BECAUSE OF THE ALLEGED INVALIDITY OF SEC.
8(5).  THAT SUBSECTION, DEALING WITH THE REFUSAL OF AN EMPLOYER TO
BARGAIN COLLECTIVELY, IS NOT "INSEPARABLY CONNECTED" WITH THE FIRST
FOUR SUBSECTIONS.  CONGRESS WOULD NOT HAVE INTENDED THAT THE WHOLE ACT
SHOULD FALL IF SEC. 8(5) WERE TO BE DECLARED UNENFORCIBLE.  THE
PRESUMPTION OF SEPARABILITY ARISING FROM THE SEPARABILITY PROVISION IS
BUTTRESSED NOT ONLY BY THE SEPARATE LISTING OF THE FIVE PROSCRIBED
LABOR PRACTICES, BUT ALSO BY THE FACT THAT A SUBSTANTIAL AMOUNT OF
PROTECTION OF COLLECTIVE BARGAINING MAY BE OBTAINED BY PROHIBITION
AGAINST INTERFERENCE WITH ORGANIZATION AND FREE CHOICE OF
REPRESENTATIVES, EVEN IF THE OBLIGATION TO BARGAIN MAY NOT ITSELF BE
ENFORCED.  THE DECISION IN CARTER V. CARTER COAL CO., 298 U.S. 238, IS,
THEREFORE, NOT IN POINT HERE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE WE ARE TO DECIDE WHETHER THE NATIONAL LABOR RELATIONS
ACT,  FN1  AS APPLIED TO THE PETITIONER BY AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD, EXCEEDS THE POWER OF CONGRESS TO REGULATE
COMMERCE PURSUANT TO ARTICLE I, SEC. 8, ABRIDGES THE FREEDOM OF THE
PRESS GUARANTEED BY THE FIRST AMENDMENT, AND DENIES TRIAL BY JURY IN
VIOLATION OF THE SEVENTH AMENDMENT OF THE CONSTITUTION. 

IN OCTOBER, 1935, THE PETITIONER DISCHARGED MORRIS WATSON, AN
EMPLOYEE IN ITS NEW YORK OFFICE.  THE AMERICAN NEWSPAPER GUILD, A LABOR
ORGANIZATION, FILED A CHARGE WITH THE BOARD ALLEGING THAT WATSON'S
DISCHARGE WAS IN VIOLATION OF SEC. 7 OF THE NATIONAL LABOR RELATIONS
ACT, WHICH CONFERS ON EMPLOYEES THE RIGHT TO ORGANIZE, TO FORM, JOIN,
OR ASSIST LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH
REPRESENTATIVES OF THEIR OWN CHOOSING, AND TO ENGAGE IN CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION; THAT THE PETITIONER HAD ENGAGED IN UNFAIR LABOR
PRACTICES CONTRARY TO SUBSECTIONS (1) AND (3) OF SEC. 8 BY INTERFERING
WITH, RESTRAINING OR COERCING WATSON IN THE EXERCISE OF THE RIGHTS
GUARANTEED HIM BY SEC. 7 AND BY DISCRIMINATING AGAINST HIM IN RESPECT
OF HIS TENURE OF EMPLOYMENT AND DISCOURAGING HIS MEMBERSHIP IN A LABOR
ORGANIZATION.  THE BOARD SERVED A COMPLAINT UPON THE PETITIONER
CHARGING UNFAIR LABOR PRACTICES AFFECTING COMMERCE WITHIN THE MEANING
OF THE STATUTE.  THE PETITIONER ANSWERED ADMITTING WATSON'S DISCHARGE
BUT DENYING THAT IT WAS DUE TO HIS JOINING OR ASSISTING THE GUILD OR
ENGAGING IN UNION ACTIVITIES, AND DENYING, ON CONSTITUTIONAL GROUNDS,
THE VALIDITY OF THE ACT AND THE JURISDICTION OF THE BOARD. 

AT A HEARING BEFORE A TRIAL EXAMINER THE PETITIONER APPEARED
SPECIALLY AND MOVED TO DISMISS THE COMPLAINT ON CONSTITUTIONAL
GROUNDS.  THE MOTION WAS OVERRULED ON ALL GROUNDS EXCEPT UPON THE
QUESTION WHETHER THE PROCEEDING WAS WITHIN THE FEDERAL COMMERCE POWER. 
COUNSEL THEREUPON UPON WITHDREW FROM THE HEARING AND THE MATTER WAS
FURTHER HEARD WITHOUT THE PARTICIPATION OF THE PETITIONER OR ITS
COUNSEL.  AFTER RECEIVING VOLUMINOUS EVIDENCE AS TO THE CHARACTER OF
THE PETITIONER'S BUSINESS, THE EXAMINER OVERRULED THE CONTENTION THAT
INTERSTATE COMMERCE WAS NOT INVOLVED AND PROCEEDED TO HEAR THE MERITS. 
AT THE CLOSE OF THE HEARING HE RECOMMENDED THAT AN ORDER BE ENTERED
AGAINST THE PETITIONER.  NOTICE OF THE FILING OF THIS REPORT AND OF
HEARING THEREON BY THE BOARD WAS GIVEN THE PETITIONER BUT IT FAILED TO
APPEAR.  BASED UPON THE EXAMINER'S REPORT THE BOARD MADE FINDINGS OF
FACT, STATED ITS CONCLUSIONS OF LAW, AND ENTERED AN ORDER THAT THE
ASSOCIATED PRESS CEASE AND DESIST FROM DISCOURAGING MEMBERSHIP IN THE
AMERICAN NEWSPAPER GUILD OR ANY OTHER LABOR ORGANIZATION OF ITS
EMPLOYEES, BY DISCHARGING, THREATENING TO DISCHARGE, OR REFUSING TO
REINSTATE ANY OF THEM FOR JOINING THE GUILD OR ANY OTHER LABOR
ORGANIZATION OF ITS EMPLOYEES, AND FROM DISCRIMINATING AGAINST ANY
EMPLOYEE IN RESPECT OF HIRE, OR TENURE OF EMPLOYMENT, OR ANY TERM OR
CONDITION OF EMPLOYMENT FOR JOINING THE GUILD OR ANY OTHER SUCH
ORGANIZATION, AND FROM INTERFERING WITH, RESTRAINING, OR COERCING ITS
EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SEC. 7 OF THE
ACT.  IT FURTHER ENJOINED THE ASSOCIATED PRESS TO OFFER WATSON
REINSTATEMENT TO HIS FORMER POSITION WITHOUT PREJUDICE TO ANY RIGHTS
AND PRIVILEGES PREVIOUSLY ENJOYED BY HIM; TO MAKE HIM WHOLE FOR ANY
LOSS OF PAY SUFFERED BY REASON OF HIS DISCHARGE; TO POST NOTICES IN ITS
NEW YORK OFFICE STATING IT WOULD CEASE AND DESIST FROM THE ENJOINED
PRACTICES, AND TO KEEP SUCH NOTICES POSTED FOR THIRTY DAYS.  FN2 

THE PETITIONER REFUSED TO COMPLY WITH THE ORDER, AND THE BOARD,
PURSUANT TO SEC. 10(E) OF THE ACT, PETITIONED THE CIRCUIT COURT OF
APPEALS FOR ENFORCEMENT.  THE PETITIONER ANSWERED, AGAIN SETTING UP ITS
CONTENTIONS WITH RESPECT TO THE CONSTITUTIONALITY OF THE ACT AS APPLIED
TO IT. AFTER ARGUMENT, THE COURT MADE A DECREE ENFORCING THE ORDER. 
FN3 

IN ITS ANSWER TO THE BOARD'S PETITION FOR ENFORCEMENT, THE PETITIONER
DID NOT CHALLENGE THE BOARD'S FINDINGS OF FACT, AND NO ERROR IS
ASSIGNED IN THIS COURT TO THE ACTION OF THE CIRCUIT COURT OF APPEALS IN
ADOPTING THEM.  WE, THEREFORE, ACCEPT AS ESTABLISHED THAT THE
ASSOCIATED PRESS DID NOT, AS CLAIMED IN ITS ANSWER BEFORE THE BOARD,
DISCHARGE WATSON BECAUSE OF UNSATISFACTORY SERVICE, BUT, ON THE
CONTRARY, AS FOUND BY THE BOARD, DISCHARGED HIM FOR HIS ACTIVITIES IN
CONNECTION WITH THE NEWSPAPER GUILD.  IT FOLLOWS THAT SEC. 8,
SUBSECTIONS (1) AND (3) AUTHORIZE THE ORDER, AND THE ONLY ISSUES OPEN
HERE ARE THOSE INVOLVING THE POWER OF CONGRESS UNDER THE CONSTITUTION
TO EMPOWER THE BOARD TO MAKE IT IN THE CIRCUMSTANCES. 

FIRST.  DOES THE STATUTE, AS APPLIED TO THE PETITIONER, EXCEED THE
POWER OF CONGRESS TO REGULATE INTERSTATE COMMERCE?  THE SOLUTION OF
THIS ISSUE DEPENDS UPON THE NATURE OF THE PETITIONER'S ACTIVITIES, AND
WATSON'S RELATION TO THEM.  THE FINDINGS OF THE BOARD IN THIS ASPECT
ARE UNCHALLENGED, AND THE QUESTION BECOMES, THEREFORE, SOLELY ONE OF
LAW TO BE ANSWERED IN THE LIGHT OF THE UNCONTRADICTED FACTS. 

THE ASSOCIATED PRESS IS A MEMBERSHIP CORPORATION UNDER THE LAWS OF
NEW YORK WHICH DOES NOT OPERATE FOR PROFIT BUT IS A COOPERATIVE
ORGANIZATION WHOSE MEMBERS ARE REPRESENTATIVES OF NEWSPAPERS.  IT HAS
ABOUT 1350 MEMBERS IN THE UNITED STATES AND PRACTICALLY ALL THE
NEWSPAPERS REPRESENTED IN ITS MEMBERSHIP ARE CONDUCTED FOR PROFIT.  ITS
BUSINESS IS THE COLLECTION OF NEWS FROM MEMBERS AND FROM OTHER SOURCES
THROUGHOUT THE UNITED STATES AND FOREIGN COUNTRIES AND THE COMPILATION,
FORMULATION, AND DISTRIBUTION THEREOF TO ITS MEMBERS.  IN THE PROCESS,
THE NEWS IS PREPARED FOR MEMBERS' USE BY EDITING, REWRITING, SELECTING,
OR DISCARDING, THE INFORMATION RECEIVED, IN WHOLE OR IN PART.  THE
PRODUCT IS TRANSMITTED TO MEMBER NEWSPAPERS AND ALSO TO FOREIGN
AGENCIES PURSUANT TO MUTUAL EXCHANGE AGREEMENTS.  THE SERVICE IS NOT
SOLD BUT THE ENTIRE COST IS APPORTIONED AMONGST THE MEMBERS BY
ASSESSMENT. 

PETITIONER MAINTAINS ITS PRINCIPAL OFFICE IN NEW YORK CITY BUT HAS
ALSO DIVISION POINTS SCATTERED OVER THE UNITED STATES EACH OF WHICH IS
CHARGED WITH THE DUTY OF COLLECTING INFORMATION FROM A DEFINED
TERRITORY AND PREPARING AND DISTRIBUTING IT TO NEWSPAPERS WITHIN THE
ASSIGNED AREA AND TO OTHER DIVISION POINTS FOR USE WITHIN THEIR
RESPECTIVE AREAS.  EACH MEMBER NEWSPAPER FORWARDS NEWS DEEMED IMPORTANT
TO THE DIVISIONAL HEADQUARTERS OF ITS AREA.  IN ADDITION, EMPLOYEES OF
THE PETITIONER OBTAIN NEWS WHICH IS TRANSMITTED TO THE APPROPRIATE
DIVISION HEADQUARTERS TO BE EDITED AND FORWARDED TO MEMBERS WITHIN THE
AREA REPRESENTED BY THAT HEADQUARTERS AND TO OTHER DIVISIONS FOR
DISTRIBUTION TO MEMBER NEWSPAPERS WITHIN THEIR RESPECTIVE AREAS.  THE
MEANS OF COMMUNICATION COMMONLY USED IN RECEIVING AND TRANSMITTING NEWS
CONSISTS OF WIRES LEASED FROM TELEGRAPH AND TELEPHONE COMPANIES, BUT
MESSENGER SERVICE, THE WIRELESS, AND THE MAIL ARE ALSO EMPLOYED.  EACH
DIVISION POINT IS CONNECTED WITH EVERY OTHER BY TELEGRAPH WIRES FOR
EXCHANGE OF NEWS.  REGIONAL CIRCUITS SUPPLEMENT THESE PRIMARY
CIRCUITS.  ALL THESE LINES OF COMMUNICATION ARE UTILIZED THROUGHOUT THE
TWENTY-FOUR HOURS OF EVERY DAY. 

CONSIDERATION OF THE RELATION OF WATSON'S ACTIVITIES TO INTERSTATE
COMMERCE MAY BE CONFINED TO THE OPERATIONS OF THE NEW YORK OFFICE WHERE
HE WAS EMPLOYED.  THIS OFFICE IS THE HEADQUARTERS OF THE EASTERN
DIVISION AND, THROUGH IT OPERATES THE PETITIONER'S FOREIGN SERVICE,
WITH OFFICES, STAFFS, AND CORRESPONDENTS THROUGHOUT THE WORLD.  NEWS
RECEIVED IN NEW YORK FROM FOREIGN PARTS, FROM NEWSPAPER MEMBERS WITHIN
THE EASTERN DIVISION, AND FROM OTHER DIVISION POINTS, IS EDITED BY
EMPLOYEES ACTING UNDER THE DIRECTION OF SUPERVISING EDITORS AND, IN ITS
EDITED FORM, IS TRANSMITTED THROUGHOUT THE DIVISION AND TO THE
HEADQUARTERS OF OTHER DIVISIONS.  THE DISTRIBUTEES OF ANY GIVEN ITEM
ARE SELECTED BY THOSE EMPLOYED FOR THE PURPOSE IN ACCORDANCE WITH THEIR
JUDGMENT AS TO THE USEFULNESS OF THAT ITEM TO THE MEMBERS OR THE
DIVISIONS TO WHICH IT IS TRANSMITTED.  THUS THE NEW YORK OFFICE
RECEIVES AND DISPATCHES NEWS FROM AND TO ALL PARTS OF THE WORLD, IN
ADDITION TO THAT FROM NEW YORK STATE AND OTHER NORTHEASTERN AND MIDDLE
ATLANTIC STATES WHICH COMPRISE THE EASTERN DIVISION.  THE WORK OF THE
OFFICE IS DIVIDED INTO TWO DEPARTMENTS KNOWN AS THE TRAFFIC DEPARTMENT
AND THE NEWS DEPARTMENT.  ALL THOSE EMPLOYED IN THE ACTUAL RECEIPT AND
TRANSMISSION OF NEWS ARE IN THE TRAFFIC DEPARTMENT; ALL OTHERS,
INCLUDING EDITORIAL EMPLOYEES, ARE GROUPED IN THE NEWS DEPARTMENT. 
WATSON, AT THE TIME OF HIS DISCHARGE, WAS IN THE LATTER CLASS, WHOSE
DUTY IS TO RECEIVE, REWRITE, AND FILE FOR TRANSMISSION NEWS COMING INTO
THE OFFICE.  AN EXECUTIVE NEWS EDITOR, ASSISTED BY SUPERVISING EDITORS
AND EDITORIAL EMPLOYEES, HAS GENERAL CHARGE OF THE REVISION OF NEWS
RECEIVED FROM SO-CALLED FILING EDITORS WHO ARE IN IMMEDIATE CHARGE OF
THE TELEGRAPH WIRES CONNECTING WITH THE SOURCES AND DESTINATION OF
NEWS.  THESE FILING EDITORS SUPERVISE THE NEWS AS IT GOES OUT FROM NEW
YORK CITY; THEY DETERMINE WHAT NEWS, FROM THE TOTAL COPY DELIVERED TO
THEM, IS TO BE SENT OVER THE WIRES OF WHICH THEY HAVE CHARGE TO THE
AREA REACHED BY THOSE WIRES, AND THEY HAVE CHARGE OF REWRITING SUCH
COPY AS IT COMES FROM THE OTHER EDITORS AS MAY BE APPROPRIATE FOR USE
IN THEIR RESPECTIVE CIRCUITS AND THE DELIVERY OF THE SELECTED AND
REWRITTEN NEWS TO TELETYPE OPERATORS FOR TRANSMISSION OVER THEIR
WIRES.  THE FUNCTION OF EDITORS AND EDITORIAL EMPLOYEES SUCH AS WATSON
IS TO DETERMINE THE NEWS VALUE OF ITEMS RECEIVED AND SPEEDILY AND
ACCURATELY TO REWRITE THE COPY DELIVERED TO THEM, SO THAT THE REWRITTEN
MATTER SHALL BE DELIVERED TO THE VARIOUS FILING EDITORS WHO ARE
RESPONSIBLE FOR ITS TRANSMISSION, IF APPROPRIATE, TO THE AREAS REACHED
BY THEIR CIRCUITS. 

UPON THE BASIS OF THESE FACTS THE BOARD CONCLUDED THAT THE ASSOCIATED
PRESS WAS ENGAGED IN INTERSTATE COMMERCE; THAT WATSON'S SERVICES BORE A
DIRECT RELATION TO PETITIONER'S INTERSTATE COMMERCE ACTIVITIES; AND
THAT LABOR DISPUTES BETWEEN PETITIONER AND EMPLOYEES OF HIS CLASS, AND
LABOR DISTURBANCES OR STRIKES AFFECTING THAT CLASS OF EMPLOYEES, TEND
TO HINDER AND IMPEDE INTERSTATE COMMERCE.  THESE CONCLUSIONS ARE
CHALLENGED BY THE PETITIONER. 

"TRADE, TRAFFIC, COMMERCE, TRANSPORTATION, OR COMMUNICATION AMONG THE
SEVERAL STATES  ...  OR BETWEEN ANY FOREIGN COUNTRY AND ANY STATE
..."  SUBSECTION (7) PROVIDES:  "THE TERM 'AFFECTING COMMERCE' MEANS IN
COMMERCE, OR BURDENING OR OBSTRUCTING COMMERCE OR THE FREE FLOW OF
COMMERCE." 

THE ASSOCIATED PRESS IS ENGAGED IN INTERSTATE COMMERCE WITHIN THE
DEFINITION OF THE STATUTE AND THE MEANING OF ARTICLE I, SEC. 8 OF THE
CONSTITUTION.  IT IS AN INSTRUMENTALITY SET UP BY CONSTITUENT MEMBERS
WHO ARE ENGAGED IN A COMMERCIAL BUSINESS FOR PROFIT, AND AS SUCH
INSTRUMENTALITY ACTS AS AN EXCHANGE OR CLEARING HOUSE OF NEWS AS
BETWEEN THE RESPECTIVE MEMBERS, AND AS A SUPPLIER TO MEMBERS, OF NEWS
GATHERED THROUGH ITS OWN DOMESTIC AND FOREIGN ACTIVITIES.  THESE
OPERATIONS INVOLVE THE CONSTANT USE OF CHANNELS OF INTERSTATE AND
FOREIGN COMMUNICATION.  THEY AMOUNT TO COMMERCIAL INTERCOURSE, AND SUCH
INTERCOURSE IS COMMERCE WITHIN THE MEANING OF THE CONSTITUTION.  FN4
INTERSTATE COMMUNICATION OF A BUSINESS NATURE, WHATEVER THE MEANS OF
SUCH COMMUNICATION, IS INTERSTATE COMMERCE REGULABLE BY CONGRESS UNDER
THE CONSTITUTION.  FN5  THIS CONCLUSION IS UNAFFECTED BY THE FACT THAT
THE PETITIONER DOES NOT SELL NEWS AND DOES NOT OPERATE FOR PROFIT,  FN6
OR THAT TECHNICALLY THE TITLE TO THE NEWS REMAINS IN THE PETITIONER
DURING INTERSTATE TRANSMISSION.  FN7  PETITIONER BEING SO ENGAGED IN
INTERSTATE COMMERCE, THE CONGRESS MAY ADOPT APPROPRIATE REGULATIONS OF
ITS ACTIVITIES FOR THE PROTECTION AND ADVANCEMENT, AND FOR THE
INSURANCE OF THE SAFETY OF, SUCH COMMERCE. 

THE NATIONAL LABOR RELATIONS ACT SEEKS TO PROTECT THE EMPLOYEES'
RIGHT OF COLLECTIVE BARGAINING, AND PROHIBITS ACTS OF THE EMPLOYER
DISCRIMINATING AGAINST EMPLOYEES FOR UNION ACTIVITIES AND ADVOCACY OF
SUCH BARGAINING, BY DENOMINATING THEM UNFAIR PRACTICES TO BE ABATED IN
ACCORDANCE WITH THE TERMS OF THE ACT.  AS IS SHOWN IN THE OPINION IN
VIRGINIAN RY. CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515, THE
EXPERIENCE UNDER THE RAILWAY LABOR ACT HAS DEMONSTRATED THE EFFICACY OF
SUCH LEGISLATION IN PREVENTING INDUSTRIAL STRIKES AND OBVIATING
INTERFERENCE WITH THE FLOW OF INTERSTATE COMMERCE.  THE PETITIONER,
HOWEVER, INSISTS THAT EDITORIAL EMPLOYEES SUCH AS WATSON ARE REMOTE
FROM ANY INTERSTATE ACTIVITY AND THEIR EMPLOYMENT AND TENURE CAN HAVE
NO DIRECT OR INTIMATE RELATION WITH THE COURSE OF INTERSTATE COMMERCE. 
WE THINK, HOWEVER, IT IS OBVIOUS THAT STRIKES OR LABOR DISTURBANCES
AMONGST THIS CLASS OF EMPLOYEES WOULD HAVE AS DIRECT AN EFFECT UPON THE
ACTIVITIES OF THE PETITIONER AS SIMILAR DISTURBANCES AMONGST THOSE WHO
OPERATE THE TELETYPE MACHINES OR AS A STRIKE AMONGST THE EMPLOYEES OF
TELEGRAPH LINES OVER WHICH PETITIONER'S MESSAGES TRAVEL. 

IN TEXAS & N.O.R. CO. V. BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
281 U.S. 548, 570, WE HELD A STATUTE PROTECTING THE RIGHTS OF
COLLECTIVE BARGAINING BY RAILWAY EMPLOYEES WAS WITHIN THE COMPETENCE OF
CONGRESS UNDER THE COMMERCE CLAUSE AND THAT ITS PROVISIONS EXTENDED TO
CLERKS WHO HAD NO DIRECT CONTACT WITH THE ACTUAL FACILITIES OF RAILWAY
TRANSPORTATION.  WE THERE SAID: 

"EXERCISING THIS AUTHORITY, CONGRESS MAY FACILITATE THE AMICABLE
SETTLEMENT OF DISPUTES WHICH THREATEN THE SERVICE OF THE NECESSARY
AGENCIES OF INTERSTATE TRANSPORTATION.  IN SHAPING ITS LEGISLATION TO
THIS END, CONGRESS WAS ENTITLED TO TAKE COGNIZANCE OF ACTUAL CONDITIONS
AND TO ADDRESS ITSELF TO PRACTICABLE MEASURES.  THE LEGALITY OF
COLLECTIVE ACTION ON THE PART OF EMPLOYEES IN ORDER TO SAFEGUARD THEIR
PROPER INTERESTS IS NOT TO BE DISPUTED.  IT HAS LONG BEEN RECOGNIZED
THAT EMPLOYEES ARE ENTITLED TO ORGANIZE FOR THE PURPOSE OF SECURING THE
REDRESS OF GRIEVANCES AND TO PROMOTE AGREEMENTS WITH EMPLOYERS RELATING
TO RATES OF PAY AND CONDITIONS OF WORK.  AMERICAN STEEL FOUNDRIES V.
TRI-CITY CENTRAL TRADES COUNCIL, 257 U.S. 184, 209.  CONGRESS WAS NOT
REQUIRED TO IGNORE THIS RIGHT OF THE EMPLOYEES BUT COULD SAFEGUARD IT
AND SEEK TO MAKE THEIR APPROPRIATE COLLECTIVE ACTION AN INSTRUMENT OF
PEACE RATHER THAN OF STRIFE." 

IN VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION NO. 40, SUPRA, WE HAVE
HELD AN AMENDMENT OF THE RAILWAY LABOR ACT, IN ALL MATERIAL RESPECTS
ANALOGOUS TO THE STATUTE HERE UNDER CONSIDERATION, APPLICABLE TO SO
CALLED BACK-SHOP EMPLOYEES OF RAILROADS DESPITE THE CONTENTION THAT
THEIR EMPLOYMENT IS REMOTE FROM INTERSTATE TRANSPORTATION. 

THESE DECISIONS FORECLOSE THE PETITIONER'S CONTENTION THAT WATSON'S
EMPLOYMENT HAD NO RELATION TO INTERSTATE COMMERCE AND COULD NOT BE
SUBJECTED TO THE REGULATORY PROVISIONS OF THE NATIONAL LABOR RELATIONS
ACT. 

SECOND.  DOES THE STATUTE, AS APPLIED TO THE PETITIONER, ABRIDGE THE
FREEDOM OF SPEECH OR OF THE PRESS, SAFEGUARDED BY THE FIRST AMENDMENT? 
WE HOLD THAT IT DOES NOT.  IT IS INSISTED THAT THE ASSOCIATED PRESS IS
IN SUBSTANCE THE PRESS ITSELF, THAT THE MEMBERSHIP CONSISTS SOLELY OF
PERSONS WHO OWN AND OPERATE NEWSPAPERS, THAT THE NEWS IS GATHERED
SOLELY FOR PUBLICATION IN THE NEWSPAPERS OF MEMBERS.  STRESS IS LAID
UPON THE FACTS THAT THIS MEMBERSHIP CONSISTS OF PERSONS OF EVERY
CONCEIVABLE POLITICAL, ECONOMIC, AND RELIGIOUS VIEW, THAT THE ONE THING
UPON WHICH THE MEMBERS ARE UNITED IS THAT THE ASSOCIATED PRESS SHALL BE
WHOLLY FREE FROM PARTISAN ACTIVITY OR THE EXPRESSION OF OPINIONS, THAT
IT SHALL LIMIT ITS FUNCTION TO REPORTING EVENTS WITHOUT BIAS IN ORDER
THAT THE CITIZENS OF OUR COUNTRY, IF GIVEN THE FACTS, MAY BE ABLE TO
FORM THEIR OWN OPINIONS RESPECTING THEM.  THE CONCLUSION WHICH THE
PETITIONER DRAWS IS THAT WHATEVER MAY BE THE CASE WITH RESPECT TO
EMPLOYEES IN ITS MECHANICAL DEPARTMENTS IT MUST HAVE ABSOLUTE AND
UNRESTRICTED FREEDOM TO EMPLOY AND TO DISCHARGE THOSE WHO, LIKE WATSON,
EDIT THE NEWS, THAT THERE MUST NOT BE THE SLIGHTEST OPPORTUNITY FOR ANY
BIAS OR PREJUDICE PERSONALLY ENTERTAINED BY AN EDITORIAL EMPLOYEE TO
COLOR OR TO DISTORT WHAT HE WRITES, AND THAT THE ASSOCIATED PRESS
CANNOT BE FREE TO FURNISH UNBIASED AND IMPARTIAL NEWS REPORTS UNLESS IT
IS EQUALLY FREE TO DETERMINE FOR ITSELF THE PARTIALITY OR BIAS OF
EDITORIAL EMPLOYEES.  SO IT IS SAID THAT ANY REGULATION PROTECTIVE OF
UNION ACTIVITIES, OR THE RIGHT COLLECTIVELY TO BARGAIN ON THE PART OF
SUCH EMPLOYEES, IS NECESSARILY AN INVALID INVASION OF THE FREEDOM OF
THE PRESS. 

WE THINK THE CONTENTION NOT ONLY HAS NO RELEVANCE TO THE
CIRCUMSTANCES OF THE INSTANT CASE BUT IS AN UNSOUND GENERALIZATION. 
THE OSTENSIBLE REASON FOR WATSON'S DISCHARGE, AS EMBODIED IN THE
RECORDS OF THE PETITIONER, IS "SOLELY ON THE GROUNDS OF HIS WORK NOT
BEING ON A BASIS FOR WHICH HE HAS SHOWN CAPABILITY."  THE PETITIONER
DID NOT ASSERT AND DOES NOT NOW CLAIM THAT HE HAD SHOWN BIAS IN THE
PAST.  IT DOES NOT CLAIM THAT BY REASON OF HIS CONNECTION WITH THE
UNION HE WILL BE LIKELY, AS THE PETITIONER HONESTLY BELIEVES, TO SHOW
BIAS IN THE FUTURE.  THE ACTUAL REASON FOR HIS DISCHARGE, AS SHOWN BY
THE UNATTACKED FINDING OF THE BOARD, WAS HIS GUILD ACTIVITY AND HIS
AGITATION FOR COLLECTIVE BARGAINING.  THE STATUTE DOES NOT PRECLUDE A
DISCHARGE ON THE OSTENSIBLE GROUNDS FOR THE PETITIONER'S ACTION; IT
FORBIDS DISCHARGE FOR WHAT HAS BEEN FOUND TO BE THE REAL MOTIVE OF THE
PETITIONER.  THESE CONSIDERATIONS ANSWER THE SUGGESTION WAS LIKELY TO
BE SUBVERTED BY WATSON'S CONTINUED SERVICE, CONGRESS WAS WITHOUT POWER
TO INTERDICT HIS DISCHARGE.  NO SUCH QUESTION IS HERE FOR DECISION. 
NEITHER BEFORE THE BOARD, NOR IN THE COURT BELOW, NOR HERE HAS THE
PETITIONER PROFESSED SUCH BELIEF.  IT SEEKS TO BAR ALL REGULATION BY
CONTENDING THAT REGULATION IN A SITUATION NOT PRESENTED WOULD BE
INVALID.  COURTS DEAL WITH CASES UPON THE BASIS OF THE FACTS DISCLOSED,
NEVER WITH NONEXISTENT AND ASSUMED CIRCUMSTANCES. 

THE ACT DOES NOT COMPEL THE PETITIONER TO EMPLOY ANYONE; IT DOES NOT
REQUIRE THAT THE PETITIONER RETAIN IN ITS EMPLOY AN INCOMPETENT EDITOR
OR ONE WHO FAILS FAITHFULLY TO EDIT THE NEWS TO REFLECT THE FACTS
WITHOUT BIAS OR PREJUDICE.  THE ACT PERMITS A DISCHARGE FOR ANY REASON
OTHER THAN UNION ACTIVITY OR AGITATION FOR COLLECTIVE BARGAINING WITH
EMPLOYEES.  THE RESTORATION OF WATSON TO HIS FORMER POSITION IN NO
SENSE GUARANTEES HIS CONTINUANCE IN PETITIONER'S EMPLOY.  THE
PETITIONER IS AT LIBERTY, WHENEVER OCCASION MAY ARISE, TO EXERCISE ITS
UNDOUBTED RIGHT TO SEVER HIS RELATIONSHIP FOR ANY CAUSE THAT SEEMS TO
IT PROPER SAVE ONLY AS A PUNISHMENT FOR, OR DISCOURAGEMENT OF, SUCH
ACTIVITIES AS THE ACT DECLARES PERMISSIBLE. 

THE BUSINESS OF THE ASSOCIATED PRESS IS NOT IMMUNE FROM REGULATION
BECAUSE IT IS AN AGENCY OF THE PRESS.  THE PUBLISHER OF A NEWSPAPER HAS
NO SPECIAL IMMUNITY FROM THE APPLICATION OF GENERAL LAWS.  HE HAS NO
SPECIAL PRIVILEGE TO INVADE THE RIGHTS AND LIBERTIES OF OTHERS.  HE
MUST ANSWER FOR LIBEL.  FN8  HE MAY BE PUNISHED FOR CONTEMPT OF COURT. 
FN9  HE IS SUBJECT TO THE ANTI-TRUST LAWS.  FN10  LIKE OTHERS HE MUST
PAY EQUITABLE AND NONDISCRIMINATORY TAXES ON HIS BUSINESS.  FN11 THE
REGULATION HERE IN QUESTION HAS NO RELATION WHATEVER TO THE IMPARTIAL
DISTRIBUTION OF NEWS.  THE ORDER OF THE BOARD IN NOWISE CIRCUMSCRIBES
THE FULL FREEDOM AND LIBERTY OF THE PETITIONER TO PUBLISH THE NEWS AS
IT DESIRES IT PUBLISHED OR TO ENFORCE POLICIES OF ITS OWN CHOOSING WITH
RESPECT TO THE EDITING AND REWRITING OF NEWS FOR PUBLICATION, AND THE
PETITIONER IS FREE AT ANY TIME TO DISCHARGE WATSON OR ANY EDITORIAL
EMPLOYEE WHO FAILS TO COMPLY WITH THE POLICIES IT MAY ADOPT. 

THIRD.  THE CONTENTIONS THAT THE ACT DEPRIVES THE PETITIONER OF
PROPERTY WITHOUT DUE PROCESS, THAT THE ORDER OF THE BOARD DEPRIVES
PETITIONER OF THE RIGHT TO TRIAL BY JURY, AND THAT THE ACT IS INVALID
ON ITS FACE BECAUSE IT SEEKS TO REGULATE BOTH INTERSTATE AND INTRASTATE
COMMERCE, ARE SUFFICIENTLY ANSWERED IN THE OPINION IN TEXAS AND N.O.R.
CO. V. BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, SUPRA, AND IN
NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL CORP., ANTE,
P. 1, AND NEED NO FURTHER DISCUSSION HERE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS AFFIRMED. 

FN1  JULY 5, 1935, C. 372, 49 STAT. 449; U.S.C. SUPP. I, TIT. 29,
SECS. 151, ETC.  THE TERMS OF THE ACT, THE PROCEDURE THEREUNDER, AND
THE RELIEF WHICH MAY BE GRANTED PURSUANT THERETO, ARE SET FORTH IN THE
OPINION IN NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL
CORP., ANTE, P. 1. 

FN2  1 N.L.R.B. 788. 

FN3  85 F.(2D) 56. 

FN4  GIBBONS V. OGDEN, 9 WHEAT.  1, 189. 

FN5  PENSACOLA TELEGRAPH CO. V. WESTERN UNION, 96 U.S. 1, 9, 10;
FEDERAL RADIO COMM'N V. NELSON BROS. CO., 289 U.S. 266, 279;
INTERNATIONAL TEXTBOOK CO. V. PIGG, 217 U.S. 91, 107; INDIANA FARMER'S
GUIDE PUBLISHING CO. V. PRAIRIE FARMER PUBLISHING CO., 293 U.S. 268,
276. 

FN6  UNITED STATES V. HILL, 248 U.S. 420; UNITED STATES V. SIMPSON,
252 U.S. 465. 

FN7  PIPE LINE CASES, 234 U.S. 548, 560. 

FN8  ROBERTSON V. BALDWIN, 165 U.S. 275, 281. 

FN9  TOLEDO NEWSPAPER CO. V. UNITED STATES, 247 U.S. 402. 

FN10  INDIANA FARMER'S GUIDE PUBLISHING CO. V. PRAIRIE FARMER
PUBLISHING CO., SUPRA. 

FN11  GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 250. 

MR. JUSTICE SUTHERLAND, DISSENTING. 

MR. JUSTICE VAN DEVANTER, MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER
AND I THINK THE JUDGMENT BELOW SHOULD BE REVERSED. 

ONE OF THE POINTS MADE IN THE COURT BELOW, AND ASSIGNED AS ERROR HERE
IS THAT THE STATUTE INVOLVED, AS APPLIED, ABRIDGES THE FREEDOM OF THE
PRESS IN VIOLATION OF THE FIRST AMENDMENT. 

THE ASSOCIATED PRESS IS ENGAGED IN COLLECTING, EDITING AND
DISTRIBUTING NEWS TO ITS MEMBERS, PUBLISHERS OF SOME 1300 NEWSPAPERS
THROUGHOUT THE UNITED STATES.  THESE NEWSPAPERS REPRESENT MANY DIVERSE
POLICIES AND MANY DIFFERENCES IN POINT OF VIEW.  IT, OBVIOUSLY, IS
ESSENTIAL THAT THE NEWS FURNISHED SHOULD NOT ONLY BE WITHOUT
SUPPRESSION BUT THAT IT SHOULD BE, AS FAR AS POSSIBLE, FREE FROM COLOR,
BIAS OR DISTORTION.  SUCH IS THE LONG-ESTABLISHED POLICY OF THE
ASSOCIATED PRESS.  IF THE CONGRESSIONAL ACT HERE INVOLVED, UPON ITS
FACE OR IN ITS PRESENT APPLICATION, ABRIDGES THE FREEDOM OF PETITIONER
TO CARRY ITS POLICY INTO EFFECT, THE ACT TO THAT EXTENT FALLS UNDER THE
CONDEMNATION OF THE FIRST AMENDMENT.  WE SHALL CONFINE OURSELVES TO
THAT QUESTION, THE GRAVITY OF WHICH IS EVIDENT; BUT WE DO NOT MEAN
THEREBY TO RECORD OUR ASSENT TO ALL THAT HAS BEEN SAID WITH REGARD TO
OTHER QUESTIONS IN THE CASE.    THE FIRST TEN AMENDMENTS TO THE
CONSTITUTION SAFEGUARD THE FUNDAMENTAL RIGHTS THEREIN MENTIONED FROM
EVERY FORM OF UNPERMITTED FEDERAL LEGISLATION.  THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT PROTECTS THE PERSON AGAINST DEPRIVATION OF LIFE,
LIBERTY OR PROPERTY EXCEPT BY DUE PROCESS OF LAW.  "LIBERTY" IS A WORD
OF WIDE MEANING, AND, WITHOUT MORE, WOULD HAVE INCLUDED THE VARIOUS
LIBERTIES GUARANTEED BY THE FIRST AMENDMENT.  DE JONGE V. OREGON, 299
U.S. 353, 364, AND CASES CITED; GROSJEAN V. AMERICAN PRESS CO., 297
U.S. 233, 243-245; NEAR V. MINNESOTA, 283 U.S. 697, 707; PIERCE V.
SOCIETY OF SISTERS, 268 U.S. 510, 534-535. 

BUT THE FRAMERS OF THE BILL OF RIGHTS, REGARDING CERTAIN LIBERTIES AS
SO VITAL THAT LEGISLATIVE DENIAL OF THEM SHOULD BE SPECIFICALLY
FORECLOSED, PROVIDED BY THE 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." 

THE DIFFERENCE BETWEEN THE TWO AMENDMENTS IS AN EMPHATIC ONE AND
READILY APPARENT.  DEPRIVATION OF A LIBERTY NOT EMBRACED BY THE FIRST
AMENDMENT, AS FOR EXAMPLE THE LIBERTY OF CONTRACT, IS QUALIFIED BY THE
PHRASE "WITHOUT DUE PROCESS OF LAW"; BUT THOSE LIBERTIES ENUMERATED IN
THE FIRST AMENDMENT ARE GUARANTEED WITHOUT QUALIFICATION, THE OBJECT
AND EFFECT OF WHICH IS TO PUT THEM IN A CATEGORY APART AND MAKE THEM
INCAPABLE OF ABRIDGMENT BY ANY PROCESS OF LAW.  THAT THIS IS INFLEXIBLY
TRUE OF THE CLAUSE IN RESPECT OF RELIGION AND RELIGIOUS LIBERTY CANNOT
BE DOUBTED; AND IT IS TRUE OF THE OTHER CLAUSES SAVE AS THEY MAY BE
SUBJECT IN SOME DEGREE TO RARE AND EXTREME EXIGENCIES SUCH AS, FOR
EXAMPLE, A STATE OF WAR.  LEGISLATION WHICH CONTRAVENES THE LIBERTIES
OF THE FIRST AMENDMENT MIGHT NOT CONTRAVENE LIBERTIES OF ANOTHER KIND
FALLING ONLY WITHIN THE TERMS OF THE FIFTH AMENDMENT.  THUS, WE HAVE
HELD THAT THE GOVERNMENTAL POWER OF TAXATION, ONE OF THE LEAST
LIMITABLE OF THE POWERS, MAY NOT BE EXERTED SO AS TO ABRIDGE THE
FREEDOM OF THE PRESS (GROSJEAN V. AMERICAN PRESS CO., SUPRA), ALBEIT
THE SAME TAX MIGHT BE ENTIRELY VALID IF CHALLENGED UNDER THE "LIBERTY"
GUARANTY OF THE FIFTH AMENDMENT, APART FROM THOSE LIBERTIES EMBRACED BY
THE FIRST.  COMPARE LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY, 219 U.S.
467, 482-483. 

NO ONE CAN READ THE LONG HISTORY WHICH RECORDS THE STERN AND OFTEN
BLOODY STRUGGLES BY WHICH THESE CARDINAL RIGHTS WERE SECURED, WITHOUT
REALIZING HOW NECESSARY IT IS TO PRESERVE THEM AGAINST ANY
INFRINGEMENT, HOWEVER SLIGHT.  FOR, AS MR. JUSTICE BRADLEY SAID IN BOYD
V. UNITED STATES, 116 U.S. 616, 635, "ILLEGITIMATE AND UNCONSTITUTIONAL
PRACTICES GET THEIR FIRST FOOTING IN THAT WAY, NAMELY, BY SILENT
APPROACHES AND SLIGHT DEVIATIONS FROM LEGAL MODES OF PROCEDURE....  IT
IS THE DUTY OF COURTS TO BE WATCHFUL FOR THE CONSTITUTIONAL RIGHTS OF
THE CITIZEN, AND AGAINST ANY STEALTHY ENCROACHMENTS THEREON.  THEIR
MOTTO SHOULD BE OBSTA PRINCIPIIS."  "EXPERIENCE SHOULD TEACH US," IT
WAS SAID IN ANOTHER CASE, "TO BE MOST ON OUR GUARD TO PROTECT LIBERTY
WHEN THE GOVERNMENT'S PURPOSES ARE BENEFICENT.  MEN BORN TO FREEDOM ARE
NATURALLY ALERT TO REPEL INVASION OF THEIR LIBERTY BY EVIL-MINDED
RULERS.  THE GREATEST DANGERS TO LIBERTY LURK IN INSIDIOUS ENCROACHMENT
BY MEN OF ZEAL, WELL-MEANING BUT WITHOUT UNDERSTANDING."  OLMSTEAD V.
UNITED STATES, (DISSENT), 277 U.S. 471, 479.  A LITTLE WATER, TRICKLING
HERE AND THERE THROUGH A DAM, IS A SMALL MATTER IN ITSELF; BUT IT MAY
BE A SINISTER MENACE TO THE SECURITY OF THE DAM, WHICH THOSE LIVING IN
THE VALLEY BELOW WILL DO WELL TO HEED. 

THE DESTRUCTION OR ABRIDGMENT OF A FREE PRESS - WHICH CONSTITUTES ONE
OF THE MOST DEPENDABLE AVENUES THROUGH WHICH INFORMATION OF PUBLIC AND
GOVERNMENTAL ACTIVITIES MAY BE TRANSMITTED TO THE PEOPLE - WOULD BE AN
EVENT SO EVIL IN ITS CONSEQUENCES THAT THE LEAST APPROACH TOWARD THAT
END SHOULD BE HALTED AT THE THRESHOLD. 

THE GRANTS OF THE CONSTITUTION ALWAYS ARE TO BE READ IN THE LIGHT OF
THE RESTRICTIONS.  THUS, THE EXERCISE OF THE POWER TO MAKE LAWS ON THE
SUBJECT OF BANKRUPTCIES, THE EXERCISE OF THE WAR POWERS, OF THE POWER
TO TAX, OF THE POWER TO EXCLUDE ALIENS, OR OF THE POWER TO REGULATE
COMMERCE, IS EACH SUBJECT TO THE QUALIFIED RESTRICTIONS OF THE FIFTH
AMENDMENT (LOUISVILLE BANK V. RADFORD, 295 U.S. 555, 589); AS EACH,
ALSO, IS SUBJECT, SO FAR AS APPROPRIATE, TO THE UNQUALIFIED
RESTRICTIONS OF THE FIRST.  CONGRESS HAS NO POWER TO REGULATE THE
RELATIONS OF PRIVATE EMPLOYER AND EMPLOYEE AS AN END IN ITSELF, BUT
ONLY IF THAT BE AN APPROPRIATE AND LEGITIMATE MEANS TO A CONSTITUTIONAL
END, WHICH HERE IS THE REGULATION OF INTERSTATE COMMERCE.  ASSUMING
THAT THE STATUTE UPON ITS FACE SATISFIES THIS TEST, DOES THE PRESENT
APPLICATION OF IT SATISFY THE REQUIREMENT THAT THE FREEDOM OF THE PRESS
SHALL NOT BE ABRIDGED? 

FREEDOM IS NOT A MERE INTELLECTUAL ABSTRACTION; AND IT IS NOT MERELY
A WORD TO ADORN AN ORATION UPON OCCASIONS OF PATRIOTIC REJOICING.  IT
IS AN INTENSELY PRACTICAL REALITY, CAPABLE OF CONCRETE ENJOYMENT IN A
MULTITUDE OF WAYS DAY BY DAY.  WHEN APPLIED TO THE PRESS, THE TERM
FREEDOM IS NOT TO BE NARROWLY CONFINED; AND IT OBVIOUSLY MEANS MORE
THAN PUBLICATION AND CIRCULATION.  IF FREEDOM OF THE PRESS DOES NOT
INCLUDE THE RIGHT TO ADOPT AND PURSUE A POLICY WITHOUT GOVERNMENTAL
RESTRICTION, IT IS A MISNOMER TO CALL IT FREEDOM.  AND WE MAY AS WELL
DENY AT ONCE THE RIGHT OF THE PRESS FREELY TO ADOPT A POLICY AND PURSUE
IT, AS TO CONCEDE THAT RIGHT AND DENY THE LIBERTY TO EXERCISE AN
UNCENSORED JUDGMENT IN RESPECT OF THE EMPLOYMENT AND DISCHARGE OF THE
AGENTS THROUGH WHOM THE POLICY IS TO BE EFFECTUATED. 

IN A MATTER OF SUCH CONCERN, THE JUDGMENT OF CONGRESS - OR, STILL
LESS, THE JUDGMENT OF AN ADMINISTRATIVE CENSOR - CANNOT, UNDER THE
CONSTITUTION, BE SUBSTITUTED FOR THAT OF THE PRESS MANAGEMENT IN
RESPECT OF THE EMPLOYMENT OR DISCHARGE OF EMPLOYEES ENGAGED IN
EDITORIAL WORK.  THE GOOD WHICH MIGHT COME TO INTERSTATE COMMERCE OR
THE BENEFIT WHICH MIGHT RESULT TO A SPECIAL GROUP, HOWEVER LARGE, MUST
GIVE WAY TO THAT HIGHER GOOD OF ALL THE PEOPLE SO PLAINLY CONTEMPLATED
BY THE IMPERATIVE REQUIREMENT THAT "CONGRESS SHALL MAKE NO LAW  ...
ABRIDGING THE FREEDOM  ...  OF THE PRESS." 

THE PRESENT CASE ILLUSTRATES THE NECESSITY FOR THE ENFORCEMENT OF
THESE PRINCIPLES.  THE BOARD FOUND, IN EFFECT, THAT THE ACTUAL REASON
FOR WATSON'S DISCHARGE WAS HIS ACTIVITY AS A MEMBER OF A LABOR
ORGANIZATION IN THE FURTHERANCE OF ITS AIMS.  ACCEPTING THIS AS A TRUE
STATEMENT OF THE REASON FOR THE DISCHARGE, LET US CONSIDER THE QUESTION
FROM THE STANDPOINT OF THAT FINDING; ALTHOUGH, AS ALREADY INDICATED, WE
ARE OF OPINION THAT THE CONSTITUTIONAL IMMUNITY OF THE PRESS DOES NOT
PERMIT ANY LEGISLATIVE RESTRICTION OF THE AUTHORITY OF A PUBLISHER,
ACTING UPON HIS OWN JUDGMENT, TO DISCHARGE ANYONE ENGAGED IN THE
EDITORIAL SERVICE.  SUCH A RESTRICTION OF ITSELF WOULD BE AN ABRIDGMENT
OF THE FREEDOM OF THE PRESS NO LESS THAN A LAW RESTRICTING THE
CONSTITUTIONAL LIBERTY OF ONE TO SPEAK WOULD BE AN ABRIDGMENT OF THE
FREEDOM OF SPEECH. 

FOR MANY YEARS THERE HAS BEEN CONTENTION BETWEEN LABOR AND CAPITAL. 
LABOR HAS BECOME HIGHLY ORGANIZED IN A WIDE EFFORT TO SECURE AND
PRESERVE ITS RIGHTS.  THE DAILY NEWS WITH RESPECT TO LABOR DISPUTES IS
NOW OF VAST PROPORTIONS; AND CLEARLY A CONSIDERABLE PART OF
PETITIONER'S EDITORIAL SERVICE MUST BE DEVOTED TO THAT SUBJECT.  SUCH
NEWS IS NOT ONLY OF GREAT PUBLIC INTEREST; BUT AN UNBIASED VERSION OF
IT IS OF THE UTMOST PUBLIC CONCERN.  TO GIVE A GROUP OF EMPLOYERS ON
THE ONE HAND, OR A LABOR ORGANIZATION ON THE OTHER, POWER OF CONTROL
OVER SUCH A SERVICE IS OBVIOUSLY TO ENDANGER THE FAIRNESS AND ACCURACY
OF THE SERVICE.  STRONG SYMPATHY FOR OR STRONG PREJUDICE AGAINST A
GIVEN CAUSE OR THE EFFORTS MADE TO ADVANCE IT HAS TOO OFTEN LED TO
SUPPRESSION OR COLORATION OF UNWELCOME FACTS.  IT WOULD SEEM TO BE AN
EXERCISE OF ONLY REASONABLE PRUDENCE FOR AN ASSOCIATION ENGAGED IN PART
IN SUPPLYING THE PUBLIC WITH FAIR AND ACCURATE FACTUAL INFORMATION WITH
RESPECT TO THE CONTESTS BETWEEN LABOR AND CAPITAL, TO SEE THAT THOSE
WHOSE ACTIVITIES INCLUDE THAT SERVICE ARE FREE FROM EITHER EXTREME
SYMPATHY OR EXTREME PREJUDICE ONE WAY OR THE OTHER.  AND IT WOULD BE NO
ANSWER TO SAY THAT DEALING WITH NEWS OF THIS CHARACTER CONSTITUTES ONLY
A PART OF THE DUTIES OF THE EDITORIAL FORCE.  THE INTEREST OF A JUROR,
FOR EXAMPLE, IN THE RESULT, WHICH EXCLUDES HIM FROM SITTING IN A CASE,
MAY BE SMALL AND THE ADVERSE EFFECT UPON HIS VERDICT BY NO MEANS
CERTAIN.  NEVERTHELESS, THE PARTY AFFECTED CANNOT BE CALLED UPON TO
ASSUME THE HAZARD.  IN THE PRESENT CASE, BY A PARITY OF REASONING, THE
HOPE OF BENEFIT TO A CHERISHED CAUSE WHICH MAY BIAS THE EDITORIAL
EMPLOYEE IS A CONTINGENCY THE RISK OF WHICH THE PRESS IN THE EXERCISE
OF ITS UNCHALLENGEABLE FREEDOM UNDER THE CONSTITUTION MAY TAKE OR
DECLINE TO TAKE, WITHOUT BEING SUBJECT TO ANY FORM OF LEGISLATIVE
COERCION. 

WHAT, THEN, ARE THE FACTS HERE INVOLVED?  MORRIS WATSON WAS EMPLOYED
BY PETITIONER FIRST IN 1928 AS A REPORTER AND REWRITE EDITOR IN
PETITIONER'S CHICAGO OFFICE.  IN 1930, HE WAS TRANSFERRED TO THE NEW
YORK OFFICE, AND THERE SERVED AS EDITORIAL EMPLOYEE UNTIL HIS DISCHARGE
ON OCTOBER 18, 1935.  ONE OF HIS DUTIES WAS TO REWRITE AND SUPERVISE
THE NEWS RECEIVED AT THE NEW YORK OFFICE AND DETERMINE WHAT PORTION OF
IT SHOULD BE SENT TO POINTS OUTSIDE.  AS THE COURT ALREADY HAS POINTED
OUT, HE HAD AUTHORITY TO DETERMINE THE NEWS VALUE OF ITEMS RECEIVED AND
WAS REQUIRED TO SPEEDILY AND ACCURATELY REWRITE THE COPY DELIVERED TO
HIM. 

IN NOVEMBER, 1933, WATSON WAS INSTRUMENTAL IN ORGANIZING THE
ASSOCIATED PRESS UNIT OF THE NEW YORK NEWSPAPER GUILD, A LABOR
ORGANIZATION, CONSTITUTING A PART OF THE AMERICAN NEWSPAPER GUILD; AND
HE WAS, FROM THE BEGINNING, RECOGNIZED AS THE OUTSTANDING UNION
REPRESENTATIVE OF THE PRESS ASSOCIATIONS.  HE SERVED SUCCESSIVELY AS
CHAIRMAN OF THE ASSOCIATED PRESS UNIT AND AS TREASURER AND SECRETARY OF
THE NEW YORK GUILD, AND AT THE TIME OF HIS DISCHARGE WAS VICE-PRESIDENT
FOR WIRING SERVICES OF THE AMERICAN GUILD.  HIS GUILD ACTIVITIES WERE
IMMEDIATELY OBJECTED TO BY PETITIONER; AND THEREAFTER, ON NUMEROUS
OCCASIONS, THESE ACTIVITIES WERE OBJECTED TO BY PETITIONER'S EXECUTIVES
AND INDUCEMENTS WERE HELD OUT TO HIM TO ABANDON THEM.  THE FINDINGS OF
THE BOARD DISCLOSE THAT WATSON CONTINUED IN VARIOUS WAYS TO PROMOTE THE
INTERESTS OF THE GUILD; AND THERE IS NO DOUBT THAT HIS SYMPATHIES WERE
STRONGLY ENLISTED IN SUPPORT OF THE GUILD'S POLICIES, WHETHER THEY
CLASHED WITH THE POLICIES OF PETITIONER OR NOT.  WE DO NOT QUESTION HIS
RIGHT TO ASSUME AND MAINTAIN THAT ATTITUDE.  BUT, IF PETITIONER
CONCLUDED, AS IT WELL COULD HAVE DONE, THAT ITS POLICY TO PRESERVE ITS
NEWS SERVICE FREE FROM COLOR, BIAS OR DISTORTION WAS LIKELY TO BE
SUBVERTED BY WATSON'S RETENTION, WHAT POWER HAS CONGRESS TO INTERFERE
IN THE FACE OF THE FIRST AMENDMENT? 

AND THAT QUESTION MAY NOT BE DETERMINED BY CONSIDERING WATSON ONLY;
FOR THE POWER TO COMPEL HIS CONTINUANCE IN THE SERVICE INCLUDES THE
POWER TO COMPEL THE CONTINUANCE OF ALL GUILD MEMBERS ENGAGED IN
EDITORIAL WORK, WITH THE RESULT THAT THE APPLICATION OF THE STATUTE
HERE MADE, IF CARRIED TO THE LOGICAL EXTREME, WOULD GIVE OPPORTUNITY
FOR THE GUILD TO EXERCISE A HIGH DEGREE OF CONTROL OVER THE CHARACTER
OF THE NEWS SERVICE.  DUE REGARD FOR THE CONSTITUTIONAL GUARANTY
REQUIRES THAT THE PUBLISHER OR AGENCY OF THE PUBLISHER OF NEWS SHALL BE
FREE FROM RESTRAINT IN RESPECT OF EMPLOYMENT IN THE EDITORIAL FORCE. 
AND WE ARE DEALING HERE NOT WITH GUILD MEMBERS EMPLOYED IN THE
MECHANICAL OR PURELY CLERICAL WORK OF THE PRESS BUT WITH THOSE ENGAGED
AS WATSON WAS IN ITS EDITORIAL WORK AND HAVING THE POWER THEREBY TO
AFFECT THE EXECUTION OF ITS POLICIES. 

AN ILLUSTRATION MAY BE HELPFUL:  THE RIGHT TO BELONG TO A LABOR UNION
IS ENTITLED TO THE SHIELD OF THE LAW, BUT NO MORE SO THAN THE RIGHT NOT
TO BELONG.  NEITHER CAN BE PROSCRIBED.  SO MUCH MUST BE TRUE, OR WE DO
NOT LIVE IN A FREE LAND.  LET US SUPPOSE THE PASSAGE OF A STATUTE OF
LIKE CHARACTER WITH THAT UNDER REVIEW, HAVING THE SAME OBJECTIVE, BUT
TO BE EFFECTED BY FORBIDDING THE DISCHARGE OF EMPLOYEES ON THE GROUND
NOT THAT THEY ARE BUT THAT THEY ARE NOT MEMBERS OF A LABOR
ASSOCIATION.  LET US SUPPOSE FURTHER THAT A LABOR ASSOCIATION IS
ENGAGED IN PUBLISHING AN INTERSTATE-CIRCULATED JOURNAL DEVOTED TO
FURTHERING THE INTERESTS OF LABOR, AND THAT MEMBERS OF ITS EDITORIAL
STAFF, RESIGNING THEIR MEMBERSHIP IN THE ASSOCIATION, TRANSFER THEIR
ALLEGIANCE FROM THE CAUSE OF THE WORKINGMAN TO THAT OF THE EMPLOYER. 
CAN IT BE DOUBTED THAT AN ORDER REQUIRING THE REINSTATEMENT OF AN
EDITORIAL WRITER WHO HAD BEEN DISCHARGED UNDER THESE CIRCUMSTANCES
WOULD ABRIDGE THE FREEDOM OF THE PRESS GUARANTEED BY THE FIRST
AMENDMENT? 

AND IF THAT VIEW OF THE AMENDMENT MAY BE AFFIRMED IN THE CASE OF A
PUBLICATION ISSUED FOR THE PURPOSE OF ADVANCING A PARTICULAR CAUSE, HOW
CAN IT BE DENIED IN THE CASE OF A PRESS ASSOCIATION ORGANIZED TO GATHER
AND EDIT THE NEWS FAIRLY AND WITHOUT BIAS OR DISTORTION FOR THE USE OF
ALL CAUSES?  TO HOLD THAT THE PRESS ASSOCIATION MUST AWAIT A CONCRETE
INSTANCE OF MISINTERPRETATION OF THE NEWS BEFORE IT CAN ACT IS TO
COMPEL IT TO EXPERIMENT WITH A DOUBT WHEN IT REGARDS CERTAINTY AS
ESSENTIAL.    THE CONCLUSION THAT THE FIRST AMENDMENT IS HERE INFRINGED
DOES NOT CHALLENGE THE RIGHT OF EMPLOYEES TO ORGANIZE, TO BARGAIN
COLLECTIVELY WITH THEIR EMPLOYERS ABOUT WAGES AND OTHER MATTERS
RESPECTING EMPLOYMENT, OR TO REFUSE TO WORK EXCEPT UPON CONDITIONS THEY
ARE WILLING TO ACCEPT.  NOR, THE FIRST AMENDMENT ASIDE, DOES IT
CHALLENGE THE ACT IN SO FAR AS IT IS AN ALLOWABLE REGULATION OF
INTERSTATE COMMERCE.  ALL AFFIRMATIONS IN RESPECT OF THESE MATTERS MAY
BE FULLY CONCEDED WITHOUT PREJUDICE TO OUR VERY DEFINITE VIEW THAT THE
APPLICATION OF THE ACT HERE HAS RESULTED IN AN UNCONSTITUTIONAL
ABRIDGMENT OF THE FREEDOM OF THE PRESS. 

DO THE PEOPLE OF THIS LAND - IN THE PROVIDENCE OF GOD, FAVORED, AS
THEY SOMETIMES BOAST, ABOVE ALL OTHERS IN THE PLENITUDE OF THEIR
LIBERTIES - DESIRE TO PRESERVE THOSE SO CAREFULLY PROTECTED BY THE
FIRST AMENDMENT:  LIBERTY OF RELIGIOUS WORSHIP, FREEDOM OF SPEECH AND
OF THE PRESS, AND THE RIGHT AS FREEMEN PEACEABLY TO ASSEMBLE AND
PETITION THEIR GOVERNMENT FOR A REDRESS OF GRIEVANCES?  IF SO, LET THEM
WITHSTAND ALL BEGINNINGS OF ENCROACHMENT.  FOR THE SADDEST EPITAPH
WHICH CAN BE CARVED IN MEMORY OF A VANISHED LIBERTY IS THAT IT WAS LOST
BECAUSE ITS POSSESSORS FAILED TO STRETCH FORTH A SAVING HAND WHILE YET
THERE WAS TIME. 
..END :















WASHINGTON COACH CO. V. LABOR BD., 301 U.S. 142 


NO. 469.  ARGUED FEBRUARY 10, 1937.  - DECIDED APRIL 12, 1937.  - 85
F.(2D) 990, AFFIRMED. 


1.  A CORPORATION ENGAGED IN THE BUSINESS OF TRANSPORTING PASSENGERS
AND EXPRESS, FOR HIRE, BETWEEN POINTS IN THE DISTRICT OF COLUMBIA AND
POINTS IN VIRGINIA, HELD AN INSTRUMENTALITY OF INTERSTATE COMMERCE AND
SUBJECT TO PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT AGAINST
DISCHARGE OF EMPLOYEES BECAUSE OF THEIR MEMBERSHIP IN A UNION AND THEIR
ADVOCACY OF COLLECTIVE BARGAINING.  P. 146. 

2.  THE NATIONAL LABOR RELATIONS ACT LIMITS THE JURISDICTION OF THE
NATIONAL LABOR RELATIONS BOARD TO INSTANCES WITHIN THE COMMERCE POWER,
AND ITS ORDERS IN EXCESS OF ITS JURISDICTION MAY BE CHALLENGED BY ANY
PARTY AGGRIEVED.  P. 146. 

3.  CLAIMS NOT MADE IN THE PETITION FOR CERTIORARI ARE NOT OPEN FOR
DECISION.  P. 146. 

4.  FINDINGS OF THE NATIONAL LABOR RELATIONS BOARD UPON MATTERS
WITHIN ITS JURISDICTION WILL NOT BE REVERSED OR MODIFIED UNLESS CLEARLY
IMPROPER OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 147. 

5.  AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD REQUIRING A COMMON
CARRIER BY MOTOR TO REINSTATE IN ITS EMPLOYMENT SEVERAL DRIVERS AND
GARAGE MECHANICS FOUND BY THE BOARD TO HAVE BEEN DISCHARGED BECAUSE OF
THEIR MEMBERSHIP IN A UNION, AND TO MAKE GOOD THE LOSSES OF PAY DUE TO
THEIR DISCHARGE, AND DIRECTING THE CARRIER TO POST NOTICES OF ITS
INTENTION TO COMPLY WITH THE BOARD'S ORDER,  - HELD VALID UPON THE
AUTHORITY OF NATIONAL LABOR RELATIONS BOARD V. JONES & LAUGHLIN STEEL
CORP., ANTE, P. 1.  P. 147. 

WASHINGTON, VIRGINIA & MARYLAND COACH CO. V. NATIONAL LABOR RELATIONS
BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 299 U.S. 533, TO REVIEW A JUDGMENT FOR ENFORCEMENT OF AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD, ENTERED BY THE COURT BELOW
UPON PETITION OF THE BOARD UNDER THE NATIONAL LABOR RELATIONS ACT. 

THE EVIDENCE DOES NOT SUSTAIN THE FINDINGS. 

WHERE A CONSTITUTIONAL RIGHT IS ALLEGED TO HAVE BEEN VIOLATED, THE
FEDERAL COURTS CAN MAKE THEIR OWN INDEPENDENT DETERMINATION OF ALL
QUESTIONS OF LAW AND FACT. 

THE ACT IS UNCONSTITUTIONAL IN ITS ENTIRETY. 

PETITIONER HAS THE NECESSARY STANDING TO ARGUE INSEPARABILITY. 

THE STATUTE SHOWS ON ITS FACE A COMPREHENSIVE SCHEME TO REGULATE
INTRASTATE AS WELL AS INTERSTATE ACTIVITIES, WITH AN OBJECT IN VIEW
WHICH COULD NOT BE ATTAINED THROUGH THE REGULATION OF INTERSTATE
RELATIONSHIPS ALONE.  HENCE IT APPEARS AFFIRMATIVELY THAT CONGRESS
WOULD NEVER HAVE PASSED THE STATUTE TO REGULATE THE FEW REMAINING LINES
OF INTERSTATE ACTIVITY IF IT COULD NOT CONSTITUTIONALLY REGULATE LABOR
RELATIONS IN INTRASTATE INDUSTRY AS WELL.  IN THIS ASPECT THE QUESTION
IS ONE OF STATUTORY CONSTRUCTION, I.E., HAVING ALREADY IN THE RAILWAY
LABOR ACT OF 1934 REGULATED THE RAILROADS AND ALLIED TRANSPORTATION
SYSTEMS WITH RESPECT TO LABOR, CAN IT BE FAIRLY ARGUED THAT, THE
"COMPREHENSIVE SCHEME" AND THE "OBJECT" OF THE ACT BEING OUTLAWED,
CONGRESS INTENDED IN THE PRESENT ACT TO REGULATE THE FEW REMAINING
INTERSTATE ACTIVITIES SUCH AS BUS COMPANIES AND COMMUNICATIONS
SYSTEMS.  IN THIS RESPECT THE PRESENT CASE SEEMS SOMEWHAT SIMILAR TO
THE TRADE-MARK CASES, 100 U.S. 82. 

THIS COURT HAVING BEFORE IT A NUMBER OF CASES INVOLVING THE
INTRASTATE APPLICATION OF THE ACT, IT IS PROPER FOR THE PRESENT
PETITIONER TO ARGUE THE LACK OF INTENTION ON THE PART OF CONGRESS TO
APPLY THE ACT TO PETITIONER IF THE ACT IS HELD UNCONSTITUTIONAL AS
BEYOND THE COMMERCE CLAUSE IN AN INTRASTATE CASE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

IN THIS CASE THE PETITIONER, AN OPERATOR OF MOTOR BUSES FOR THE
TRANSPORTATION OF PASSENGERS AND EXPRESS FOR HIRE BETWEEN POINTS IN THE
DISTRICT OF COLUMBIA AND IN THE STATE OF VIRGINIA, CHALLENGES THE
ENFORCEMENT OF THE NATIONAL LABOR RELATIONS ACT AGAINST IT AS IN
CONTRAVENTION OF THE COMMERCE CLAUSE AND THE FIFTH AND SEVENTH
AMENDMENTS OF THE CONSTITUTION. 

PURSUANT TO A WRITTEN CHARGE FILED WITH THE NATIONAL LABOR RELATIONS
BOARD BY LOCAL NO. 1079 OF THE AMALGAMATED ASSOCIATION OF STREET,
ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, A LABOR
ORGANIZATION, THE BOARD ISSUED A COMPLAINT ALLEGING THAT THE PETITIONER
HAD DISCHARGED AND REFUSED TO REINSTATE CERTAIN DRIVERS AND GARAGE
WORKMEN BECAUSE OF THEIR MEMBERSHIP AND ACTIVITY IN LOCAL NO. 1079 AND
THAT THIS CONSTITUTED ENGAGING IN UNFAIR LABOR PRACTICES AFFECTING
COMMERCE WITHIN THE INTENT OF SEC. 8, SUBSECTIONS (1) AND (3), AND SEC.
2, SUBSECTIONS (6) AND (7) OF THE NATIONAL LABOR RELATIONS ACT.  FN1
THE PETITIONER APPEARED SPECIALLY AND FILED A MOTION TO DISMISS THE
COMPLAINT ON CONSTITUTIONAL GROUNDS, AND, WITHOUT WAIVING ITS
OBJECTIONS TO THE BOARD'S JURISDICTION, FILED AN ANSWER SUBSTANTIALLY
ADMITTING THE ALLEGATIONS OF THE COMPLAINT WITH RESPECT TO THE
INTERSTATE CHARACTER OF ITS BUSINESS, ADMITTING THE DISCHARGE AND
REFUSAL TO REINSTATE THE EMPLOYEES MENTIONED IN THE COMPLAINT, AND
ALLEGING THAT ITS ACTION WAS MOTIVATED BY THE EMPLOYEES' INEFFICIENCY
AND NOT AFFECTED BY THEIR MEMBERSHIP OR ACTIVITY IN THE UNION.  THE
BOARD OVERRULED THE OBJECTIONS TO ITS JURISDICTION, FULLY HEARD THE
CASE, RECEIVED EVIDENCE OFFERED BY BOTH PARTIES, AND AT THE CONCLUSION
OF THE HEARING DENIED A MOTION TO DISMISS THE PROCEEDING ON THE GROUND
THAT THE EVIDENCE DID NOT SUPPORT THE ALLEGATIONS OF THE COMPLAINT,
EXCEPT AS TO THREE OF THE TWENTY-ONE EMPLOYEES CONCERNED AS TO WHOM THE
COMPLAINT WAS DISMISSED FOR LACK OF EVIDENCE.  THE BOARD RENDERED A
DECISION SETTING FORTH ITS FINDINGS OF FACT AND ENTERED AN ORDER
PROHIBITING THE PETITIONER FROM DISCRIMINATION AGAINST ITS EMPLOYEES
BASED UPON MEMBERSHIP IN A UNION OR ADVOCACY OF COLLECTIVE BARGAINING,
AND REQUIRING THE PETITIONER TO RESTORE EIGHTEEN OF THE DISCHARGED
EMPLOYEES TO THEIR FORMER POSITIONS WITH COMPENSATION FOR LOSS DUE TO
THEIR DISCHARGE AND TO POST NOTICES TO THE EFFECT THAT IT WOULD COMPLY
WITH THE BOARD'S ORDER.  FN2 

BECAUSE OF NON-COMPLIANCE WITH THE ORDER THE BOARD FILED A PETITION
IN THE CIRCUIT COURT OF APPEALS FOR ITS ENFORCEMENT.  THAT COURT
REFUSED TO DISTURB THE FINDINGS OF FACT MADE BY THE BOARD, OVERRULED
THE CONTENTIONS AS TO UNCONSTITUTIONALITY OF THE ACT AS APPLIED TO
PETITIONER AND PASSED A DECREE ENFORCING THE ORDER.  FN3 

WHILE THE PETITIONER, IN ITS SPECIFICATIONS OF ERROR, ATTACKS THE
HOLDING OF THE CIRCUIT COURT OF APPEALS THAT THE ACT AS APPLIED DOES
NOT VIOLATE THE FIFTH AND SEVENTH AMENDMENTS, THE ARGUMENT IN BRIEF AND
AT THE BAR WAS CONFINED TO TWO PROPOSITIONS:  FIRST, THAT THE ACT IS AN
ATTEMPT ON THE PART OF CONGRESS TO REGULATE LABOR RELATIONS IN ALL
EMPLOYMENTS WHETHER INTERSTATE OR INTRASTATE AND AS IT IS VOID AS AN
ATTEMPTED REGULATION OF INTRASTATE COMMERCE THE WHOLE MUST FALL BECAUSE
ITS PROVISIONS ARE INSEVERABLE; SECONDLY, THAT THE EVIDENCE DOES NOT
SUSTAIN THE FINDINGS AND THE BOARD COMMITTED SUBSTANTIAL ERROR IN THE
EXCLUSION OF EVIDENCE. 

FIRST.  NO CONTENTION IS MADE THAT THE PETITIONER IS OTHER THAN AN
INSTRUMENTALITY OF INTERSTATE COMMERCE.  IT IS ENGAGED IN INTERSTATE
TRANSPORTATION FOR HIRE.  OUR DECISIONS IN TEXAS AND N.O.R. CO. V.
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, 281 U.S. 548, AND
VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION NO. 40, 300 U.S. 515, PUT
BEYOND DEBATE THE VALIDITY OF THE STATUTE AS APPLIED TO THE
PETITIONER.  THE CONTENTION THAT THE ACT ON ITS FACE SEEKS TO REGULATE
LABOR RELATIONS IN ALL EMPLOYMENTS, WHETHER IN INTERSTATE COMMERCE OR
NOT, IS PLAINLY UNTENABLE.  AS WE HAVE HAD OCCASION TO POINT OUT IN
DECISIONS RENDERED THIS DAY THE ACT LIMITS THE JURISDICTION OF THE
BOARD TO INSTANCES WHICH FALL WITHIN THE COMMERCE POWER, AND IF THE
BOARD SHOULD EXCEED THE JURISDICTION CONFERRED UPON IT, ANY PARTY
AGGRIEVED IS AT LIBERTY TO CHALLENGE ITS ACTION. 

SECOND.  THE PETITION FOR CERTIORARI MADE NO MENTION OF ANY CLAIM
WITH RESPECT TO THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE
FINDINGS.  IN THE LIGHT OF THIS FACT THE QUESTION IS NOT OPEN FOR
DECISION HERE.  FN4  BUT, WERE THIS NOT SO, WE SHOULD NOT REVIEW THE
FACTS, SINCE SEC. 10(E) OF THE ACT PROVIDES THAT "THE FINDINGS OF THE
BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE CONCLUSIVE,"
AND THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDINGS. 

THIS IS NOT A CASE OF ALLEGED CONFISCATION,  FN5  NOR IS IT ONE WHERE
THE BOARD LACKED JURISDICTION,  FN6  FOR ADMITTEDLY THE PETITIONER'S
ACTIVITIES ARE IN INTERSTATE COMMERCE.  THE COMPLAINT IS MERELY OF
ERROR IN APPRECIATING AND WEIGHING EVIDENCE.  IN THE CASE OF STATUTORY
PROVISIONS LIKE SEC. 10(E), APPLICABLE TO OTHER ADMINISTRATIVE
TRIBUNALS, WE HAVE REFUSED TO REVIEW THE EVIDENCE OR WEIGH THE
TESTIMONY AND HAVE DECLARED WE WILL REVERSE OR MODIFY THE FINDINGS ONLY
IF CLEARLY IMPROPER OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.  FN7  THE
CONTENTIONS RESPECTING THE REJECTION OF EVIDENCE ARE NOT WELL FOUNDED. 

THIRD.  THE SPECIFICATIONS OF ERROR ADDRESSED TO OTHER QUESTIONS ARE
ANSWERED BY THE DECISION OF THIS COURT IN NATIONAL LABOR RELATIONS
BOARD V. JONES & LAUGHLIN STEEL CORP., ANTE, P. 1. 

THE JUDGMENT IS AFFIRMED. 

FN1  JULY 5, 1935, C. 372, 49 STAT. 449; U.S.C. SUPP. I, TIT. 29,
SECS. 151, FF. 

FN2  1 N.L.R.B. 769. 

FN3  85 F.(2D) 990. 

FN4  ALICE STATE BANK V. HOUSTON PASTURE CO., 247 U.S. 240, 242;
HELVERING V. TAYLOR, 293 U.S. 507, 511; CLARK V. WILLIARD, 294 U.S.
211, 216; MOREHEAD V. TIPALDO, 298 U.S. 587, 605. 

FN5  COMPARE ST. JOSEPH STOCK YARDS CO. V. UNITED STATES, 298 U.S.
38; BALTIMORE & OHIO R. CO. V. UNITED STATES, 298 U.S. 349, 368. 

FN6  COMPARE CROWELL V. BENSON, 285 U.S. 22. 

FN7  FLORIDA V. UNITED STATES, 292 U.S. 1, 12; FEDERAL TRADE COMM'N
V. ALGOMA LUMBER CO., 291 U.S. 67, 73; DEL VECCHIO V. BOWERS, 296 U.S.
280; ACKER V. UNITED STATES, 298 U.S. 426, 433, 434. 
..END :

















DIST. OF COLUMBIA V. CLAWANS, 300 U.S. 617 


NO. 103.  ARGUED NOVEMBER 18, 1936.  REARGUED MARCH 1, 1937.  - DECIDED
APRIL 5, 1937.  - 66 APP. D.C. 11 - 84 F.(2D) 265, AFFIRMED. 


1.  THE OFFENSE OF ENGAGING, WITHOUT A LICENSE, IN THE BUSINESS OF A
DEALER IN SECOND-HAND PERSONAL PROPERTY, DEFINED BY THE CODE OF THE
DISTRICT OF COLUMBIA, PUNISHABLE BY A FINE OF NOT MORE THAN $300 OR
IMPRISONMENT OF NOT MORE THAN 90 DAYS, IS TO BE CLASSED AS A PETTY
OFFENSE WHICH, CONSISTENTLY WITH ART. III, SEC. 2, CL. 3, OF THE
CONSTITUTION, MAY BE TRIED WITHOUT A JURY.  P. 624. 

2.  IN DETERMINING WHETHER AN OFFENSE IS A PETTY OFFENSE THAT
CONSTITUTIONALLY MAY BE TRIED WITHOUT A JURY, THE SEVERITY OF THE
PENALTY INFLICTABLE, AS WELL AS THE MORAL QUALITY OF THE ACT AND ITS
RELATION TO COMMON LAW CRIMES, SHOULD BE CONSIDERED.  P. 625. 

3.  ENGAGING IN THE BUSINESS OF SELLING SECOND-HAND PROPERTY WITHOUT
A LICENSE WAS NOT INDICTABLE AT COMMON LAW.  TODAY IT IS AT MOST BUT AN
INFRINGEMENT OF LOCAL POLICE REGULATIONS, AND ITS MORAL QUALITY IS
RELATIVELY INOFFENSIVE.  P. 625. 

4.  IN ENGLAND AND IN THE AMERICAN STATES, AT THE TIME OF THE
ADOPTION OF THE CONSTITUTION, CONFINEMENT FOR A PERIOD OF 90 DAYS OR
MORE WAS NOT AN UNUSUAL PUNISHMENT FOR PETTY OFFENSES, TRIED WITHOUT A
JURY.  P. 626. 

5.  THE QUESTION WHETHER AN OFFENSE IS TRIABLE WITHOUT A JURY IS
UNAFFECTED BY THE FACT THAT THE OFFENDER IS NOT ENTITLED TO AN APPEAL
AS OF RIGHT; IT MUST BE ASSUMED THAT, IN A PROPER CASE, AUTHORITY IN
THE APPELLATE COURT TO ALLOW AN APPEAL WILL BE EXERCISED.  P. 627. 

6.  ASSUMING THAT, WITH CHANGE OF THE COMMON ATTITUDE TOWARDS
SEVERITY OF PUNISHMENT, A PETTY OFFENSE WHICH, AT THE TIME OF THE
ADOPTION OF THE CONSTITUTION, WOULD HAVE BEEN TRIABLE WITHOUT A JURY
MAY COME WITHIN THE PROVISION OF THE CONSTITUTION REQUIRING JURY TRIAL,
THE EXISTENCE OF SUCH CHANGE MUST BE DETERMINED BY OBJECTIVE STANDARDS
SUCH AS MAY BE SEEN IN THE LAWS AND PRACTICES OF THE COMMUNITY TAKEN AS
A GAUGE OF ITS SOCIAL AND ETHICAL JUDGMENTS.  P. 627. 

THE ACT OF CONGRESS APPLICABLE TO THIS CASE, AND STATUTES IN FORCE IN
THE STATES AND IN ENGLAND, TOGETHER WITH NUMEROUS STATE COURT
DECISIONS, ARE EXAMINED AND ARE PERSUASIVE THAT THERE HAS BEEN NO SUCH
CHANGE IN THE GENERALLY ACCEPTED STANDARDS OF PUNISHMENT AS WOULD
OVERCOME THE PRESUMPTION THAT A SUMMARY PUNISHMENT OF 90 DAYS'
IMPRISONMENT, PERMISSIBLE WHEN THE CONSTITUTION WAS ADOPTED, IS
PERMISSIBLE NOW. 

7.  COMMON EXPERIENCE TEACHES THAT TESTIMONY DELIVERED AGAINST A
DEFENDANT IN A CRIMINAL CASE BY PRIVATE POLICE OR DETECTIVES, ACTING IN
THE COURSE OF THEIR PRIVATE EMPLOYMENT, IS OPEN TO THE SUSPICION OF
BIAS, ESPECIALLY WHEN UNCORROBORATED; AND THE CROSS-EXAMINATION OF SUCH
WITNESSES, BEARING DIRECTLY ON SUBSTANTIAL ISSUES, SHOULD NOT BE
SUMMARILY CURTAILED.  P. 630. 

8.  WHILE THE EXTENT OF CROSS-EXAMINATION RESTS IN THE SOUND
DISCRETION OF THE TRIAL JUDGE, IN THIS CASE DISCRETION WAS ABUSED, AND
THE ERROR PREJUDICIAL.  P. 632. 

THROUGHOUT THE TRIAL, RULINGS OF THE JUDGE PREVENTED CROSS
EXAMINATION IN APPROPRIATE FIELDS AND EXCLUDED QUESTIONS BEARING ON THE
CREDIBILITY OF WITNESSES FOR THE PROSECUTION AND ON THE COMMISSION BY
THE ACCUSED OF THE ACTS CHARGED. 

DISTRICT OF COLUMBIA V. CLAWANS. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 299 U.S. 524, TO REVIEW A JUDGMENT REVERSING A CONVICTION
IN THE POLICE COURT OF THE DISTRICT OF COLUMBIA.  THE OPINION
DISAPPROVES OF THE REASON GIVEN BY THE COURT BELOW BUT AFFIRMS THE
REVERSAL UPON ANOTHER GROUND WHICH THAT COURT DEEMED UNSUBSTANTIAL. 

THE CONSTITUTION DOES NOT REQUIRE THE TRIAL OF PETTY OFFENSES BY
JURY.  THE CHARACTER OF SUCH OFFENSES IS DETERMINED BY REFERENCE TO THE
PROCEDURE AT COMMON LAW.  SCHICK V. UNITED STATES, 195 U.S. 65; COLTS
V. DISTRICT OF COLUMBIA, 282 U.S. 63, 73; CALLAN V. WILSON, 127 U.S.
540; STATE V. BUCHANAN, 5 H. & J. (MD.)  317, 360; UNITED STATES V.
MARSHALL, 17 D.C. 34; PALMER V. LENOVITZ, 34 APP. D.C. 303, 305; PATTON
V. UNITED STATES, 281 U.S. 276, 312; EX PARTE GROSSMAN, 267 U.S. 87,
108. 

AT COMMON LAW, PRIOR TO THE ADOPTION OF THE CONSTITUTION, THERE WERE
MANY OFFENSES, BOTH IN ENGLAND AND AMERICA, IN THE TRIAL OF WHICH NO
JURY WAS ALLOWED.  THESE INCLUDED NOT ONLY OFFENSES PUNISHABLE BY
FINES, BUT OTHERS IN WHICH CORPORAL PUNISHMENT OR IMPRISONMENT MIGHT BE
IMPOSED.  (GIVING NUMEROUS INSTANCES.)  PEOPLE EX REL. COSGRIFF V.
CRAIG, 195 N.Y. 190; JOHNSON V. BARCLAY, 1 HARRISON 1, 6; UNITED STATES
V. MORLAND, 258 U.S. 433, 445; EX PARTE WILSON, 114 U.S. 417, 427. 

THE DECISIONS OF STATE COURTS, WHERE SIMILAR CONSTITUTIONAL
RESTRICTIONS ARE PROVIDED, SUPPORT THE POSITION THAT AN OFFENSE SUCH AS
IS HERE INVOLVED MAY BE TRIED BY SUMMARY PROCEDURE.  CITING THE
FOLLOWING CASES IN ADDITION TO CASES CITED IN THE OPINION:  LANCASTER
V. STATE, 90 MD. 211; STATE V. LODEN, 117 MD. 373; STATE V. RUHE, 24
NEV. 251; DUFFY V. PEOPLE, 6 HILL'S REP. 75; COOLEY V. WILDER, 234 APP.
DIV. 256; PEOPLE V. STEIN, 80 APP. DIV. 357; STATE V. RODGERS, 91
N.J.L. 212; KATZ V. ELDRIDGE, 97 N.J.L. 123. 

THE LICENSE LAW IS IN THE NATURE OF A MUNICIPAL ORDINANCE AND
CONGRESS HAS PROPERLY TREATED A VIOLATION OF THE LAW AS A PETTY
OFFENSE.  DISTRICT OF COLUMBIA V. COLTS, 282 U.S. 63, 72; STATE V.
RODGERS, 91 N.J.L. 212, 214. 

THE ABSENCE OF AN ABSOLUTE RIGHT OF APPEAL DOES NOT AFFECT THE RIGHT
OF TRIAL BY JURY. 

THE OPINION OF THE LOWER COURT IS INCONSISTENT WITH THE DECISIONS OF
THIS COURT.  DIMICK V. SCHIEDT, 293 U.S. 475, 487; CONTINENTAL BANK V.
CHICAGO, R.I. & P.RY., 294 U.S. 648, 669. 

THIS COURT MAY CONSIDER ALL CONTENTIONS OF RESPONDENT DULY PRESENTED
BELOW, EVEN THOUGH THE PETITION FOR CERTIORARI IS BASED ON A SINGLE
PROPOSITION, AS SUCH ADDITIONAL CONTENTIONS ARE FOR THE PURPOSE OF
SUSTAINING THE JUDGMENT OF THE COURT OF APPEALS.  JUD.  CODE, SECS.
240, 269. 

DEFENDANT WAS ENTITLED TO A JURY TRIAL. 

THE NUMEROUS STATUTES CITED BY PETITIONER SHOW THAT A SPECIAL ACT WAS
NECESSARY TO AUTHORIZE ADMINISTRATION OF SUMMARY PUNISHMENT EVEN AT
COMMON LAW.  LICENSE VIOLATIONS DO NOT APPEAR TO HAVE BEEN DEALT WITH
BY THE COMMON LAW. 

EVER SINCE THE DECISION OF THIS COURT IN SCHICK V. UNITED STATES, 195
U.S. 65, IT HAS BEEN PLAIN THAT EITHER THE NATURE OF AN OFFENSE OR THE
PRESCRIBED PUNISHMENT MIGHT DETERMINE THE RIGHT TO A TRIAL BY A JURY. 
IT IS THUS REASONABLE TO CONCLUDE THAT, EVEN WITH RESPECT TO AN OFFENSE
DENOMINATED AS PETTY UNDER THE COMMON LAW, AND WHICH WAS SUBJECT TO
SUMMARY PUNISHMENT AT COMMON LAW, IF, IN MORE MODERN TIMES, THE
PUNISHMENT SHALL HAVE BEEN INCREASED FROM A PETTY DEGREE TO A
SUBSTANTIAL DEGREE, THE RULE OF SUMMARY PUNISHMENT AT COMMON LAW WOULD
NO LONGER APPLY.  THE OFFENSE WOULD, BECAUSE OF THE SEVERITY OF THE
PUNISHMENT, BE ENTITLED TO A CLASSIFICATION AS A CRIMINAL OFFENSE, AND
THEREFORE COME WITHIN THE CONSTITUTIONAL PROVISION GRANTING THE RIGHT
TO A JURY TRIAL. 

IN 1871, A LICENSING ACT WAS PASSED BY THE DISTRICT ASSEMBLY, WHICH
FIXED THE PENALTY FOR VIOLATION AT A FINE OF NOT LESS THAN $5.00 OR
MORE THAN $50.00, WITHOUT IMPRISONMENT.  A JURY TRIAL WAS PERMITTED. 
LASLEY V. DISTRICT, 14 APP. D.C. 407.  IN 1902, THE OFFENSE WAS MADE
PUNISHABLE BY NOT TO EXCEED $500.00 FINE AND THIRTY DAYS IN JAIL, IN
DEFAULT OF PAYMENT.  AT THIS PERIOD, THE DEFENDANT WAS ENTITLED TO
APPEAL, AND SECURE A JURY TRIAL IN THE SUPREME COURT OF THE DISTRICT. 
DIST. OF COL. REV. STATS., SECS. 1073-7, 773.  IT WAS NOT UNTIL 1925,
THAT RIGHT OF APPEAL WAS WITHDRAWN, AND RIGHT OF TRIAL BY JURY WAS
LIKEWISE LIMITED TO CASES INVOLVING PUNISHMENT IN EXCESS OF 90 DAYS'
IMPRISONMENT AND $300.00 FINE. 

WE THINK IT FAIR TO SAY THAT THE VARIOUS STATE DECISIONS SEEM QUITE
IRRECONCILABLE, AND NOT UNNATURALLY SO, SINCE JURY PROVISIONS IN THE
VARIOUS STATE CONSTITUTIONS DIFFER WIDELY.  BUT THESE CASES DO,
GENERALLY, ESTABLISH THE FOLLOWING CONCLUSIONS:  (A) THAT SUMMARY
PUNISHMENT AT COMMON LAW USUALLY DEPENDED ON A SPECIFIC STATUTE; (B)
THAT THE PUNISHMENTS USUALLY VIEWED AS "TRIVIAL" ARE NOT COMPARABLE IN
SEVERITY WITH THE PUNISHMENT HERE INVOLVED; (C) THAT SEVERITY OF
SENTENCE IS A CONTROLLING FEATURE IN DETERMINING RIGHT TO A JURY TRIAL;
(D) THAT IN LICENSE CASES IN THE STATE COURTS, JURY TRIALS ARE COMMONLY
AFFORDED. 

IN CALLAN V. WILSON, 127 U.S. 540, THE COURT DID NOT CONCEDE THAT
THERE WAS A CLASS OF "PETTY" OR MINOR OFFENSES NOT USUALLY EMBRACED IN
CRIMINAL STATUTES, WHICH, IF COMMITTED IN THIS DISTRICT, MAY UNDER THE
AUTHORITY OF CONGRESS BE TRIED BY THE COURT AND WITHOUT A JURY.  IT
MERELY ASSUMED THIS FOR THE PURPOSES OF DECISION.  THE ONLY ISSUE
INVOLVED WAS THE RIGHT OF A DEFENDANT TO WAIVE A JURY IN A CRIMINAL
PROSECUTION. 

NO POLICY OF CONVENIENCE SHOULD BE PERMITTED TO DESTROY THE
SAFEGUARDS OF LIBERTY UNDER THE CONSTITUTION.  SUCH A POLICY HAS
FREQUENTLY BEEN COMMENTED UPON AND DISCOURAGED BY THIS COURT.  SEE
DIMICK V. SCHIEDT, 293 U.S. 486; 4 BLACKSTONE, C. 27, P. 350. 

THE RECORD IS NOT SUFFICIENT TO SUSTAIN A JUDGMENT THAT THE DEFENDANT
WAS "ENGAGED IN THE BUSINESS OF DEALER IN SECOND-HAND PERSONAL
PROPERTY." 

DEFENDANT'S RIGHTS ON CROSS-EXAMINATION OF THE PROSECUTING WITNESSES
WERE PREJUDICIALLY CURTAILED. 

THE DEFENDANT WAS NOT GIVEN A FAIR TRIAL. 

THE FACT THAT A RIGHT OF AN APPEAL IS NOT AN ABSOLUTE ONE IS A POTENT
REASON WHY ONE CHARGED WITH A CRIMINAL OFFENSE UNDER A LAW WHICH DOES
NOT ALLOW THIS RIGHT, SHOULD HAVE A JURY PASS UPON THE FACT OF GUILT OR
INNOCENCE AS PROVIDED BY THE CONSTITUTION.  SEE DIMICK V. SCHIEDT, 293
U.S., P. 486, AND AUTHORITIES CITED. 

THE OPINION OF THE LOWER COURT IS IN ACCORD WITH THE DECISIONS OF
THIS COURT AND THE BEST CONSIDERED CASES IN THE HIGHEST COURTS OF THE
STATES, AS WELL AS NUMEROUS DECISIONS IN THE CIRCUIT COURTS OF
APPEALS.  FRANK V. UNITED STATES, 192 FED. 864; CALLAN V. WILSON, 127
U.S. 540; SCHICK V. UNITED STATES, 195 U.S. 65. 

THERE IS NOT A DECISION OF THIS COURT OR OF ANY FEDERAL COURT
DEFINING CLEARLY WHAT IS OR WHAT IS NOT A "PETTY OFFENSE." 

THE PETITIONER CITES SEVERAL CASES, TO-WIT, PATTON V. UNITED STATES,
281 U.S. 276; CALLAN V. WILSON, 127 U.S. 540; DIMICK V. SCHIEDT, 293
U.S. 486; AND WEST V. GAMMON, 98 FED. 426, TO THE EFFECT THAT THE
GUARANTEE OF A TRIAL BY JURY HAS ALWAYS BEEN CONSTRUED TO MEAN A TRIAL
IN THE MODE AND ACCORDING TO THE SETTLED RULES OF THE COMMON LAW,
INCLUDING ALL THE ESSENTIAL ELEMENTS RECOGNIZED IN THIS COUNTRY AND
ENGLAND, WHEN THE CONSTITUTION WAS ADOPTED.  THIS MEANS NOTHING MORE
THAN THAT THE WORD JURY, WHEN USED IN THE CONSTITUTION, MEANS A JURY OF
12 MEN AND THAT ANY LESS NUMBER IS NOT WITHIN THE MEANING OF THE
CONSTITUTION.  THE LOGICAL RESULT OF PETITIONER'S ARGUMENT IS THAT
CONGRESS COULD PROVIDE A TRIAL WITHOUT A JURY IN ANY CASE WHERE, BEFORE
THE ADOPTION OF THE CONSTITUTION, SUCH A CASE HAD BEEN TRIED EITHER
UNDER AN ACT OF PARLIAMENT OR IN THE COLONIES SUMMARILY WITHOUT A JURY,
REGARDLESS OF THE NATURE OF THE OFFENSE OR THE PUNISHMENT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT WAS CONVICTED IN THE DISTRICT OF COLUMBIA POLICE COURT OF
ENGAGING, WITHOUT A LICENSE, IN THE BUSINESS OF A DEALER IN SECOND-HAND
PERSONAL PROPERTY, TO-WIT, THE UNUSED PORTIONS OF RAILWAY EXCURSION
TICKETS, IN VIOLATION OF SEC. 7, PAR. 39, OF THE ACT OF CONGRESS,
APPROVED JULY 1, 1902, 32 STAT. 622, C. 1352, AS AMENDED BY THE ACT OF
JULY 1, 1932, 47 STAT. 550, C. 356.  ON ARRAIGNMENT SHE DEMANDED A JURY
TRIAL, WHICH WAS DENIED, AND ON CONVICTION SHE WAS SENTENCED TO PAY A
FINE OF $300 OR TO BE CONFINED IN JAIL FOR SIXTY DAYS.  THE CASE WAS
BROUGHT TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA BY WRIT OF
ERROR TO REVIEW THE DENIAL OF THE RESPONDENT'S REQUEST FOR A JURY, AND
OTHER RULINGS OF THE TRIAL COURT WHICH, IT WAS CLAIMED, HAD DEPRIVED
HER OF A FAIR TRIAL.  THE COURT OF APPEALS REVERSED THE JUDGMENT,
HOLDING THAT A JURY TRIAL WAS GUARANTEED TO PETITIONER BY THE
CONSTITUTION, BUT THAT THE TRIAL HAD BEEN FAIR IN OTHER RESPECTS.  66
APP. D.C. 11; 84 F.(2D) 265.  WE GRANTED CERTIORARI. 

THE STATUTE UNDER WHICH PETITIONER WAS CONVICTED PROVIDES THAT THE
OFFENSE MAY BE PROSECUTED IN THE DISTRICT OF COLUMBIA POLICE COURT AND
IS PUNISHABLE BY A FINE OF NOT MORE THAN $300 OR IMPRISONMENT FOR NOT
MORE THAN NINETY DAYS.  THE CODE OF THE DISTRICT OF COLUMBIA (1929)
TIT. 18, SEC. 165, PROVIDES THAT PROSECUTIONS IN THE POLICE COURT SHALL
BE ON INFORMATION AND THAT THE TRIAL SHALL BE BY JURY IN ALL CASES "IN
WHICH, ACCORDING TO THE CONSTITUTION OF THE UNITED STATES, THE ACCUSED
WOULD BE ENTITLED TO A JURY TRIAL," AND THAT, "IN ALL CASES WHERE THE
ACCUSED WOULD NOT BY FORCE OF THE CONSTITUTION OF THE UNITED STATES BE
ENTITLED TO A TRIAL BY JURY, THE TRIAL SHALL BE BY THE COURT WITHOUT A
JURY, UNLESS IN  ...  CASES WHEREIN THE FINE OR PENALTY MAY BE MORE
THAN $300, OR IMPRISONMENT AS PUNISHMENT FOR THE OFFENSE MAY BE MORE
THAN NINETY DAYS, THE ACCUSED SHALL DEMAND A TRIAL BY JURY, IN WHICH
CASE THE TRIAL SHALL BE BY JURY."  ARTICLE III, SEC. 2, CLAUSE 3, OF
THE CONSTITUTION, PROVIDES THAT "THE TRIAL OF ALL CRIMES, EXCEPT IN
CASES OF IMPEACHMENT, SHALL BE BY JURY...."  THE SIXTH AMENDMENT
DECLARES THAT "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY
THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE
STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED,  ..." 

IT IS SETTLED BY THE DECISIONS OF THIS COURT, WHICH NEED NOT NOW BE
DISCUSSED IN DETAIL, THAT THE RIGHT OF TRIAL BY JURY, THUS SECURED,
DOES NOT EXTEND TO EVERY CRIMINAL PROCEEDING.  AT THE TIME OF THE
ADOPTION OF THE CONSTITUTION THERE WERE NUMEROUS OFFENSES, COMMONLY
DESCRIBED AS "PETTY," WHICH WERE TRIED SUMMARILY WITHOUT A JURY, BY
JUSTICES OF THE PEACE IN ENGLAND, AND BY POLICE MAGISTRATES OR
CORRESPONDING JUDICIAL OFFICERS IN THE COLONIES, AND PUNISHED BY
COMMITMENT TO JAIL, A WORKHOUSE, OR A HOUSE OF CORRECTION.  FN1  WE
THINK, AS THE COURT OF APPEALS HELD AND RESPONDENT CONCEDES, THAT,
APART FROM THE PRESCRIBED PENALTY, THE OFFENSE OF WHICH PETITIONER WAS
CONVICTED IS, BY ITS NATURE, OF THIS CLASS, AND THAT WERE IT NOT FOR
THE SEVERITY OF THE PUNISHMENT, THE OFFENDER COULD NOT, UNDER OUR
DECISIONS, CLAIM A TRIAL BY JURY AS OF RIGHT.  SCHICK V. UNITED STATES,
195 U.S. 65; AND SEE CALLAN V. WILSON, 127 U.S. 540, 552, 555; NATAL V.
LOUISIANA, 139 U.S. 621, 624; DISTRICT OF COLUMBIA V. COLTS, 282 U.S.
63, 72, 73. 

ENGAGING IN THE BUSINESS OF SELLING SECOND-HAND PROPERTY WITHOUT A
LICENSE WAS NOT INDICTABLE AT COMMON LAW.  TODAY IT IS AT MOST BUT AN
INFRINGEMENT OF LOCAL POLICE REGULATIONS, AND ITS MORAL QUALITY IS
RELATIVELY INOFFENSIVE.  BUT THIS COURT HAS REFUSED TO FORECLOSE
CONSIDERATION OF THE SEVERITY OF THE PENALTY AS AN ELEMENT TO BE
CONSIDERED IN DETERMINING WHETHER A STATUTORY OFFENSE, IN OTHER
RESPECTS TRIVIAL AND NOT A CRIME AT COMMON LAW, MUST BE DEEMED SO
SERIOUS AS TO BE COMPARABLE WITH COMMON LAW CRIMES, AND THUS TO ENTITLE
THE ACCUSED TO THE BENEFIT OF A JURY TRIAL PRESCRIBED BY THE
CONSTITUTION.  SEE SCHICK V. UNITED STATES, SUPRA, 67-68. 

WE ARE THUS BROUGHT TO THE QUESTION WHETHER THE PENALTY, WHICH MAY BE
IMPOSED FOR THE PRESENT OFFENSE, OF NINETY DAYS IN A COMMON JAIL, IS
SUFFICIENT TO BRING IT WITHIN THE CLASS OF MAJOR OFFENSES, FOR THE
TRIAL OF WHICH A JURY MAY BE DEMANDED.  THE COURT BELOW THOUGHT, AS WE
DO, THAT THE QUESTION IS NOT FREE FROM DOUBT, BUT CONCLUDED, IN VIEW OF
THE FACT THAT THE STATUTE ALLOWS NO APPEAL AS OF RIGHT FROM THE
CONVICTION FOR THE OFFENSE, AND IN VIEW OF ITS OWN ESTIMATE OF THE
SEVERITY OF THE PENALTY, THAT THREE MONTHS' IMPRISONMENT IS A
PUNISHMENT SUFFICIENTLY RIGOROUS TO PLACE RESPONDENT'S DELINQUENCY IN
THE CATEGORY OF MAJOR OFFENSES. 

IF WE LOOK TO THE STANDARD WHICH PREVAILED AT THE TIME OF THE
ADOPTION OF THE CONSTITUTION, WE FIND THAT CONFINEMENT FOR A PERIOD OF
NINETY DAYS OR MORE WAS NOT AN UNUSUAL PUNISHMENT FOR PETTY OFFENSES,
TRIED WITHOUT A JURY.  LAYING ASIDE THOSE FOR WHICH THE PUNISHMENT WAS
OF A TYPE NO LONGER COMMONLY EMPLOYED, SUCH AS WHIPPING, CONFINEMENT IN
STOCKS AND THE LIKE, AND OTHERS, PUNISHED BY COMMITMENT FOR AN
INDEFINITE PERIOD, WE KNOW THAT THERE WERE PETTY OFFENSES, TRIABLE
SUMMARILY UNDER ENGLISH STATUTES, WHICH CARRIED POSSIBLE SENTENCES OF
IMPRISONMENT FOR PERIODS FROM THREE TO TWELVE MONTHS.  FN2  AT LEAST
SIXTEEN STATUTES, PASSED PRIOR TO THE TIME OF THE AMERICAN REVOLUTION
BY THE COLONIES, OR SHORTLY AFTER BY THE NEWLYCREATED STATES,
AUTHORIZED THE SUMMARY PUNISHMENT OF PETTY OFFENSES BY IMPRISONMENT FOR
THREE MONTHS OR MORE.  FN3  AND AT LEAST EIGHT OTHERS WERE PUNISHABLE
BY IMPRISONMENT FOR SIX MONTHS.  FN4    IN THE FACE OF THIS HISTORY, WE
FIND IT IMPOSSIBLE TO SAY THAT A NINETY DAY PENALTY FOR A PETTY
OFFENSE, METED OUT UPON A TRIAL WITHOUT A JURY, DOES NOT CONFORM TO
STANDARDS WHICH PREVAILED WHEN THE CONSTITUTION WAS ADOPTED, OR WAS NOT
THEN CONTEMPLATED AS APPROPRIATE NOTWITHSTANDING THE CONSTITUTIONAL
GUARANTEE OF A JURY TRIAL.  THIS CONCLUSION IS UNAFFECTED BY THE FACT
THAT RESPONDENT IS NOT ENTITLED TO AN APPEAL AS OF RIGHT.  CODE OF THE
DISTRICT OF COLUMBIA (1929) TIT. 18, SEC. 28.  THE SAFEGUARDS OF AN
APPEAL ARE DIFFERENT IN NATURE AND PURPOSE FROM THOSE OF A JURY TRIAL. 
AT COMMON LAW THERE WAS NO REVIEW OF CRIMINAL CASES AS OF RIGHT.  DUE
PROCESS DOES NOT COMPREHEND THE RIGHT OF APPEAL, MCKANE V. DURSTON, 153
U.S. 684, 687.  THE EARLY STATUTES PROVIDING FOR SUMMARY TRIAL OFTEN
DID NOT ALLOW IT.  AND IN ANY CASE IT CANNOT BE ASSUMED THAT THE
AUTHORITY TO ALLOW AN APPEAL, GIVEN TO THE JUSTICES OF THE COURT OF
APPEALS BY THE DISTRICT LAWS, WILL NOT BE EXERCISED IN A PROPER CASE. 

WE ARE AWARE THAT THOSE STANDARDS OF ACTION AND OF POLICY WHICH FIND
EXPRESSION IN THE COMMON AND STATUTE LAW MAY VARY FROM GENERATION TO
GENERATION.  SUCH CHANGE HAS LED TO THE ABANDONMENT OF THE LASH AND THE
STOCKS, AND WE MAY ASSUME, FOR PRESENT PURPOSES, THAT COMMONLY ACCEPTED
VIEWS OF THE SEVERITY OF PUNISHMENT BY IMPRISONMENT MAY BECOME SO
MODIFIED THAT A PENALTY ONCE THOUGHT TO BE MILD MAY COME TO BE REGARDED
AS SO HARSH AS TO CALL FOR THE JURY TRIAL, WHICH THE CONSTITUTION
PRESCRIBES, IN SOME CASES WHICH WERE TRIABLE WITHOUT A JURY WHEN THE
CONSTITUTION WAS ADOPTED.  SEE SCHICK V. UNITED STATES, SUPRA, 67, 68;
COMPARE WEEMS V. UNITED STATES, 217 U.S. 349, 373; DISTRICT OF COLUMBIA
V. COLTS, SUPRA, 74; POWELL V. ALABAMA, 287 U.S. 45, 71-73; UNITED
STATES V. WOOD, 299 U.S. 123, 141 ET SEQ. BUT WE MAY DOUBT WHETHER
SUMMARY TRIAL WITH PUNISHMENT OF MORE THAN SIX MONTHS' IMPRISONMENT,
PRESCRIBED BY SOME PRE-REVOLUTIONARY STATUTES,  FN5  IS ADMISSIBLE
WITHOUT CONCLUDING THAT A PENALTY OF NINETY DAYS IS TOO MUCH.  DOUBTS
MUST BE RESOLVED, NOT SUBJECTIVELY BY RECOURSE OF THE JUDGE TO HIS OWN
SYMPATHY AND EMOTIONS, BUT BY OBJECTIVE STANDARDS SUCH AS MAY BE
OBSERVED IN THE LAWS AND PRACTICES OF THE COMMUNITY TAKEN AS A GAUGE OF
ITS SOCIAL AND ETHICAL JUDGMENTS. 

CONGRESS ITSELF, BY MEASURING THE PUNISHMENT IN THIS CASE IN
CONFORMITY TO THE COMMONLY ACCEPTED STANDARD WHEN THE CONSTITUTION WAS
ADOPTED, AND DECLARING THAT IT SHOULD BE APPLIED TODAY UNLESS FOUND TO
TRANSGRESS CONSTITUTIONAL LIMITATIONS, HAS EXPRESSED ITS DELIBERATE
JUDGMENT THAT THE PUNISHMENT IS NOT TOO GREAT TO BE SUMMARILY
ADMINISTERED.  A NUMBER OF STATES HAVE CONTINUED IN FORCE STATUTES
PROVIDING FOR TRIAL, WITHOUT A JURY, OF VIOLATIONS OF MUNICIPAL
ORDINANCES, AND SUNDRY PETTY STATUTORY OFFENSES, PUNISHABLE BY
COMMITMENT FOR THREE MONTHS OR MORE.  FN6 CONVICTIONS UNDER SUCH
LEGISLATION HAVE BEEN UPHELD MANY TIMES IN THE STATE COURTS, DESPITE
OBJECTIONS TO THE DENIAL OF A JURY TRIAL.  FN7  IN ENGLAND MANY ACTS OF
PARLIAMENT NOW IN FORCE, AUTHORIZING NINETY DAY PUNISHMENTS, CALL FOR
SUMMARY TRIALS.  FN8 

THIS RECORD OF STATUTE AND JUDICIAL DECISION IS PERSUASIVE THAT THERE
HAS BEEN NO SUCH CHANGE IN THE GENERALLY ACCEPTED STANDARDS OF
PUNISHMENT AS WOULD OVERCOME THE PRESUMPTION THAT A SUMMARY PUNISHMENT
OF NINETY DAYS' IMPRISONMENT, PERMISSIBLE WHEN THE CONSTITUTION WAS
ADOPTED, IS PERMISSIBLE NOW.  RESPONDENT POINTS TO NO CONTRARY
EVIDENCE.  WE CANNOT SAY THAT THIS PENALTY, WHEN ATTACHED TO THE
OFFENSE OF SELLING SECOND-HAND GOODS WITHOUT A LICENSE, GIVES IT THE
CHARACTER OF A COMMON LAW CRIME OR OF A MAJOR OFFENSE, OR THAT IT SO
OFFENDS THE PUBLIC SENSE OF PROPRIETY AND FAIRNESS AS TO BRING IT
WITHIN THE SWEEP OF A CONSTITUTIONAL PROTECTION WHICH IT DID NOT
PREVIOUSLY ENJOY. 

ALTHOUGH WE CONCLUDE THAT RESPONDENT'S DEMAND FOR A JURY TRIAL WAS
RIGHTLY DENIED, THERE MUST BE A NEW TRIAL BECAUSE OF THE PREJUDICIAL
RESTRICTION, BY THE TRIAL JUDGE, OF CROSS-EXAMINATION BY RESPONDENT. 
THE TESTIMONY OF FIVE PROSECUTION WITNESSES WAS THE SOLE EVIDENCE OF
THE ACTS OF RESPONDENT RELIED ON TO ESTABLISH THE DOING OF BUSINESS
WITHOUT A LICENSE.  THESE ACTS WERE THE SALE BY HER, ON EACH OF THREE
OCCASIONS, TO ONE OR ANOTHER OF THE WITNESSES, OF THE UNUSED PORTION OF
A ROUND TRIP RAILWAY PASSENGER TICKET FROM NEW YORK TO WASHINGTON. 
THREE OF THE FIVE, A MAN AND HIS WIFE AND ANOTHER, WERE EMPLOYED BY THE
RAILROAD INSPECTION COMPANY AS INVESTIGATORS.  THE OTHER TWO WERE
COMPANY POLICE OF THE BALTIMORE & OHIO RAILROAD.  ALL WERE PRIVATE
POLICE OR DETECTIVES, APPARENTLY ACTING IN THE COURSE OF THEIR PRIVATE
EMPLOYMENT.  COMMON EXPERIENCE TEACHES US THAT THE TESTIMONY OF SUCH
WITNESSES, ESPECIALLY WHEN UNCORROBORATED, IS OPEN TO THE SUSPICION OF
BIAS, SEE GASSENHEIMER V. UNITED STATES, 26 APP. D.C. 432, 446; MOLLER
V. MOLLER, 115 N.Y. 466, 468; 22 N.E. 169; PEOPLE V. LORIS, 131 APP.
DIV. 127, 130; 115 N.Y.S. 236; SOPWITH V. SOPWITH, 4.  SW. & TR. 243,
246-7; WIGMORE, EVIDENCE (2D ED. 1923) SECS. 949, 969, 2062, AND THAT
THEIR CROSS-EXAMINATION SHOULD NOT BE CURTAILED SUMMARILY, SEE STATE V.
DIEDTMAN, 58 MONT. 13, 24; 190 PAC. 117, ESPECIALLY WHEN IT HAS A
DIRECT BEARING ON THE SUBSTANTIAL ISSUES OF THE CASE. 

THE DEFENSE WAS A SUGGESTED MISTAKEN IDENTITY OF RESPONDENT AND AN
ALIBI, THAT AT THE TIMES MENTIONED SHE WAS CONFINED TO HER BED BY
ILLNESS, AT HER HOME IN NEWARK, NEW JERSEY.  A NUMBER OF QUESTIONS ON
CROSS-EXAMINATION BY RESPONDENT WERE AIMED AT SHOWING MISTAKEN IDENTITY
AND AT TESTING CREDIBILITY.  SHE ASKED ONE WITNESS WHETHER RESPONDENT
HAD BEEN POINTED OUT TO HIM.  SHE ASKED ANOTHER WHETHER HE HAD ANY
TROUBLE IN "KNOWING" THE RESPONDENT AT THE TRIAL, AND WHETHER HE HAD
SEEN HER BEFORE THE DATE OF THE ALLEGED SALE OF TICKETS TO WHICH HE
TESTIFIED.  ALL THESE QUESTIONS WERE EXCLUDED, AS WERE OTHERS WHICH
WERE PROPER, SINCE THEY MIGHT HAVE ESTABLISHED CONTRADICTION IN THE
TESTIMONY OF THE WITNESSES FOR THE PROSECUTION. 

OTHER QUESTIONS, WHICH WERE RELEVANT TO THE ISSUE AND OBVIOUSLY
PROPER TESTS OF CREDIBILITY, WERE EXCLUDED.  THE WOMAN WITNESS HAD
TESTIFIED THAT ONE OF THE SALES TOOK PLACE IN THE PRESENCE OF HER
HUSBAND, AND OF THE TWO RAILROAD POLICE WITNESSES.  ON CROSS
EXAMINATION SHE COULD NOT REMEMBER WHETHER ANYONE BESIDE HER HUSBAND
WAS PRESENT.  YET RESPONDENT WAS NOT PERMITTED TO ASK THE HUSBAND
WHETHER THE RAILROAD POLICE WITNESSES WERE KNOWN TO HIM OR TO ASK ONE
OF THE LATTER WHETHER HE KNEW THE HUSBAND AND WIFE BEFORE THE DATE OF
THE ALLEGED SALE.  THE COURT INSTRUCTED ONE OF THE POLICE OFFICERS NOT
TO ANSWER THE QUESTION WHETHER THE HUSBAND HAD COME TO WASHINGTON BY
PREARRANGEMENT.  LIKE QUESTIONS ADDRESSED TO THE HUSBAND AND HIS WIFE
WERE EXCLUDED.  THE RESPONDENT WAS SIMILARLY PREVENTED FROM MAKING
INQUIRIES AS TO CORROBORATIVE DETAIL, SUCH AS THE TIME OF DAY WHEN THE
WITNESSES ARRIVED IN WASHINGTON ON THE DATES OF THE ALLEGED SALES, AND
THE PLACE OF RESIDENCE OF A WITNESS, SEE ALFORD V. UNITED STATES, 282
U.S. 687.  IN THE CIRCUMSTANCES OF THE CASE, THESE QUESTIONS MAY HAVE
HAD AN IMPORTANT BEARING ON THE ACCURACY AND TRUTHFULNESS OF THE
TESTIMONY OF THE PROSECUTING WITNESSES.  WE DO NOT STOP TO GIVE OTHER
EXAMPLES OF THE SUMMARY CURTAILMENT OF ALL INQUIRY AS TO MATTERS WHICH
ARE THE APPROPRIATE SUBJECT OF CROSS-EXAMINATION. 

THE EXTENT OF CROSS-EXAMINATION RESTS IN THE SOUND DISCRETION OF THE
TRIAL JUDGE.  REASONABLE RESTRICTION OF UNDUE CROSS-EXAMINATION, AND
THE MORE RIGOROUS EXCLUSION OF QUESTIONS IRRELEVANT TO THE SUBSTANTIAL
ISSUES OF THE CASE, AND OF SLIGHT BEARING ON THE BIAS AND CREDIBILITY
OF THE WITNESSES, ARE NOT REVERSIBLE ERRORS.  BUT THE PREVENTION,
THROUGHOUT THE TRIAL OF A CRIMINAL CASE, OF ALL INQUIRY IN FIELDS WHERE
CROSS-EXAMINATION IS APPROPRIATE, AND PARTICULARLY IN CIRCUMSTANCES
WHERE THE EXCLUDED QUESTIONS HAVE A BEARING ON CREDIBILITY AND ON THE
COMMISSION BY THE ACCUSED OF THE ACTS RELIED UPON FOR CONVICTION,
PASSES THE PROPER LIMITS OF DISCRETION AND IS PREJUDICIAL ERROR.  SEE
ALFORD V. UNITED STATES, SUPRA. 

THE JUDGMENT OF THE COURT OF APPEALS WILL BE AFFIRMED, THAT OF THE
POLICE COURT REVERSED, AND THE CASE WILL BE REMANDED WITH INSTRUCTIONS
FOR A NEW TRIAL WITHOUT A JURY.  AFFIRMED. 

FN1  4 BLACKSTONE, COMMENTARIES, 280-281; MCNAMARA'S PALEY ON SUMMARY
CONVICTIONS (4TH ED. 1856), 10-12; DILLON, MUNICIPAL CORPORATIONS, SEC.
433(5TH ED. 1911, SEC. 750).  A COMPREHENSIVE COLLECTION OF THE
STATUTES, ENGLISH AND AMERICAN, WILL BE FOUND IN PETTY FEDERAL OFFENSES
AND THE CONSTITUTIONAL GUARANTY OF TRIAL BY JURY, 39 HARV. L. REV. 917,
922-965, 983-1019. 

FN2  THREE MONTHS:  5 ANNE, C. 14, IV; 1 GEO. I, C. 48, II. SIX
MONTHS:  17 GEO. II, C. 5, IX. ONE YEAR:  5 ELIZ., C. 4, XXI; 5 ELIZ.,
C. 15, II; 7 JAC.  I, C. 4, VII; 8 GEO. I, C. 2, XXXVI; 15 GEO. II, C.
33, VI. 

FN3  GEORGIA:  18 COLONIAL RECORDS (CANDLER) 588(1764).  MARYLAND:
LAWS 1768(KILTY) C. 29, SEC. 16.  MASSACHUSETTS:  PROVINCE LAWS 1764
1765, C. 30, SECS. 2, 5, 4 ACTS AND RESOLVES OF MASS. PROVINCE 763. 
NEW HAMPSHIRE:  LAWS 1696(8 WM. III) C. 1, SEC. 1.  NEW JERSEY:
PATERSON'S LAWS OF NEW JERSEY, AT 410, SEC. 3(ACT OF JUNE 10, 1799). 
NEW YORK:  3 COLONIAL LAWS 318(1743); 3 ID. 855(1751); 4 ID. 304(1758);
4 ID. 349(1759); 4 ID. 748(1763); 4 ID. 925(1766).  NORTH CAROLINA:
LAWS 1778, C. 2, 24 STATE RECORDS 158.  PENNSYLVANIA:  7 STATUTES AT
LARGE OF PENNSYLVANIA FROM 1682 TO 1801, C. 534, SEC. 12(1766); 8 ID.,
C. 623, SEC. 2(1771).  VIRGINIA:  29 GEO. II, C. 4, SEC. 4(1756); LAWS
1787, C. 48, SEC. 13.  SEE ALSO CONNECTICUT, 1786 STAT. 36(FOUR
MONTHS). 

FN4  MARYLAND:  LAWS 1715(KILTY) C. 44, SEC. 34.  MASSACHUSETTS:
PROVINCE LAWS 1752-1753, C. 16, SEC. 1, 3 ACTS AND RESOLVES OF MASS.
PROVINCE 645.  NEW HAMPSHIRE:  3 LAWS OF NEW HAMPSHIRE (METCALF)
72(1754); 4 ID. 75(1777).  NEW JERSEY:  27 & 28 GEO. II, C. 261, SEC.
11, ACTS OF PROVINCE OF NEW JERSEY (ALLINSON) 198, 201(1754).  NEW
YORK:  3 COLONIAL LAWS 1096(1755); LAWS 1785, C. 40, SEC. 3; LAWS 1785,
C. 47, SEC. 2. 

FN5  SEE FOOTNOTE 2, SUPRA. 

FN6  (A)  STATUTES EMBRACING VIOLATIONS OF MUNICIPAL ORDINANCES
GENERALLY.  E. G.: ARIZ. REV. CODE (STRUCKMEYER, 1928) SECS. 382, 442,
(THREE MONTHS); NEB. COMP. STAT. (1929) SECS. 18-201, 18-205(THREE
MONTHS); NEW MEX.  STAT.  (COURTRIGHT, 1929) SECS. 90-402(66), 90-901,
90-910, 79-322, (THREE MONTHS); NEV. COMP. LAWS (HILLYER, 1929) SECS.
1128(1), 1167, (SIX MONTHS); WYO. REV. STAT. (COURTRIGHT, 1931) SECS.
22-402, 22-409, (THREE MONTHS). 

(B)  STATUTES COMMANDING SUMMARY TRIAL FOR SPECIFIED OFFENSES.  E.G.:
N.J. COMP. LAWS (1924 SUPP.), SECS. 135-63(3), 135-76(OPERATING MOTOR
VEHICLE UNDER INFLUENCE OF LIQUOR; SIX MONTHS; SEE KLINGES V. COURT OF
COMMON PLEAS, 130 ATL. 601); N.J. COMP. LAWS (1930 SUPP.) SEC. 160-222,
3(DISORDERLY PERSONS ACT; THREE MONTHS PENALTY, SEE N.J. LAWS 1898, P.
954, INCREASED TO ONE YEAR BY LAWS 1910, P. 37); PA. STAT. ANN.
(PURDON, 1931), SEC. 18-2033(VAGRANCY; SIX MONTHS); SEC. 18
2832(FREQUENTING OF PUBLIC PLACES BY THIEVES, FOR UNLAWFUL PURPOSE;
THREE MONTHS). 

THE MOST EXTENSIVE ELIMINATION OF THE JURY PREVAILS IN NEW YORK.  THE
THREE-JUDGE COURT OF SPECIAL SESSIONS, SITTING WITHOUT A JURY, HAS
JURISDICTION TO TRY ALL MISDEMEANORS (I.E., OFFENSES PUNISHABLE WITH
ONE YEAR'S IMPRISONMENT, N.Y. PENAL LAW (1909), SEC. 1937) COMMITTED IN
NEW YORK CITY.  INFERIOR CRIMINAL COURTS ACT OF THE CITY OF NEW YORK,
N.Y. LAWS 1910, C. 659, SEC. 31(1), (4).  A CITY MAGISTRATE SITTING
ALONE MAY TRY CERTAIN MISDEMEANORS, INCLUDING VIOLATIONS OF N.Y. PENAL
LAW (1909), SEC. 1566, PROSCRIBING THE SALE OF STREET RAILROAD TRANSFER
TICKETS, INFERIOR CRIMINAL COURTS ACT, SEC. 43(D), ADDED BY LAWS 1915,
C. 531.  OTHER LEGISLATION, STATE-WIDE IN APPLICATION, PROVIDES FOR
SUMMARY TRIAL AND CONVICTION OF PERSONS GUILTY OF DISORDERLY CONDUCT
(SIX MONTHS), N.Y. PENAL LAW (1923), SECS. 723, 724; OF PERSONS
FREQUENTING A PUBLIC PLACE FOR PURPOSES OF CRIME (100 DAYS), N.Y. CODE
CRIM. PROC., SEC. 898-A; OF "VAGRANTS" (ONE YEAR IN JAIL; THREE YEARS
IN CORRECTIONAL INSTITUTION), N.Y. CODE CRIM. PROC., SECS. 891, 891-A. 

FN7  IN WILMARTH V. KING, 74 N.H. 512; 69 ATL. 889(1908), THE COURT
APPROVED A STATUTE AUTHORIZING SIX MONTHS' IMPRISONMENT AS NOT
EXCEEDING IN MAGNITUDE THE PRE-REVOLUTIONARY PUNISHMENTS.  IN THE
FOLLOWING CASES CONVICTIONS UNDER STATUTES AUTHORIZING COMMITMENT FOR
THREE MONTHS OR MORE WERE UPHELD AND THE RIGHT TO JURY TRIAL HELD
PROPERLY DENIED.  BRAY V. STATE, 140 ALA. 172; 37 SO. 250(1903); STATE
V. PARKER, 87 FLA. 181; 100 SO. 260(1924); STATE V. GLENN, 54 MD.
572(1880); STATE V. BROMS, 139 MINN. 402; 166 N.W. 771(1918); STATE V.
ANDERSON, 165 MINN. 150; 206 N.W. 51(1925); BELL V. STATE, 104 NEB.
203; 176 N.W. 544(1920); STATE V. KACIN, 123 NEB. 64; 241 N.W.
785(1932); PEOPLE EX REL. ST. CLAIR V. DAVIS, 143 APP. DIV. 579; 127
N.Y.S. 1072(1911); PEOPLE V. HARDING, 115 MISC. 298; 189 N.Y.S.
657(1921); BYERS V. COMMONWEALTH, 42 PA. ST. 89(1862). 

FN8  THIRTY-SEVEN OFFENSES ARE LISTED IN STONE'S JUSTICES' MANUAL
(66TH ED. 1934), APPENDIX OF TABLE OF PUNISHMENTS FOR OFFENCES
COGNIZABLE UNDER THE SUMMARY JURISDICTION, PP. 1904-1945.  E. G. FRAUDS
BY WORKMEN ACT, 1777, 17 GEO. III, C. 56, SEC. 1; MERCHANDISE MARKS
ACT, 1887, 50 & 51 VICT., C. 28, SEC. 2; AGRICULTURAL MARKETING ACT,
1933, 23 & 24 GEO. V, C. 31, SEC. 6(5). 

SEVERAL OF THE STATUTES SPECIFY LARGER PENALTIES, BUT BY SEC. 17 OF
THE SUMMARY JUDICATURE ACT, 1879, 42-43 VICT., C. 49, EXCEPT IN CASES
OF ASSAULT, SENTENCES EXCEEDING THREE MONTHS CANNOT BE ADMINISTERED
UNLESS THE ACCUSED HAS BEEN OFFERED THE CHOICE OF TRIAL BY JURY. 
SEPARATE OPINION OF MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER. 

MR. JUSTICE BUTLER AND I APPROVE THE CONCLUSION OF THE COURT OF
APPEALS CONCERNING RESPONDENT'S RIGHT TO TRIAL BY JURY; ALSO WE ACCEPT
THE SUPPORTING OPINION ANNOUNCED THERE AS ENTIRELY ADEQUATE. 

THE SIXTH AMENDMENT - IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL
ENJOY THE RIGHT TO A SPEEDY, AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF
THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED,
WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE
INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED
WITH THE WITNESSES AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR
OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL
FOR HIS DEFENSE. 

THE SEVENTH AMENDMENT - IN SUITS AT COMMON LAW, WHERE THE VALUE IN
CONTROVERSY SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY
SHALL BE PRESERVED AND NO FACT TRIED BY A JURY SHALL BE OTHERWISE RE
EXAMINED IN ANY COURT OF THE UNITED STATES THAN ACCORDING TO THE RULES
OF THE COMMON LAW. 

WE CANNOT AGREE THAT WHEN A CITIZEN IS PUT ON TRIAL FOR AN OFFENSE
PUNISHABLE BY 90 DAYS IN JAIL OR A FINE OF $300.00, THE PROSECUTION IS
NOT CRIMINAL WITHIN THE SIXTH AMENDMENT.  IN A SUIT AT COMMON LAW TO
RECOVER ABOVE $20.00, A JURY TRIAL IS ASSURED.  AND TO US, IT SEEMS
IMPROBABLE THAT WHILE PROVIDING FOR THIS PROTECTION IN SUCH A TRIFLING
MATTER THE FRAMERS OF THE CONSTITUTION INTENDED THAT IT MIGHT BE DENIED
WHERE IMPRISONMENT FOR A CONSIDERABLE TIME OR LIABILITY FOR FIFTEEN
TIMES $20.00 CONFRONTS THE ACCUSED. 

IN VIEW OF THE OPINION JUST ANNOUNCED, IT SEEMS PERMISSIBLE TO
INQUIRE WHAT WILL BECOME OF THE OTHER SOLEMN DECLARATIONS OF THE
AMENDMENT.  CONSTITUTIONAL GUARANTEES OUGHT NOT TO BE SUBORDINATED TO
CONVENIENCE, NOR DENIED UPON QUESTIONABLE PRECEDENTS OR UNCERTAIN
REASONING.  SEE BOYD V. UNITED STATES, 116 U.S. 616, 635; IN RE DEBS,
158 U.S. 564, 594. 

WE CONCUR IN THE CONCLUSION OF THE COURT CONCERNING UNFAIRNESS OF THE
TRIAL AND THE NECESSITY FOR A NEW ONE. 

THIS CAUSE SHOWS THE GRAVE DANGER TO LIBERTY WHEN THE ACCUSED MUST
SUBMIT TO THE UNCERTAIN JUDGMENT OF A SINGLE MAGISTRATE. 
..END :







WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379 


NO. 293.  ARGUED DECEMBER 16, 17, 1936.  - DECIDED MARCH 29, 1937.  -
185 WASH. 581 - 55 P.(2D) 1083, AFFIRMED. 


1.  DEPRIVATION OF LIBERTY TO CONTRACT IS FORBIDDEN BY THE
CONSTITUTION IF WITHOUT DUE PROCESS OF LAW; BUT RESTRAINT OR REGULATION
OF THIS LIBERTY, IF REASONABLE IN RELATION TO ITS SUBJECT AND IF
ADOPTED FOR THE PROTECTION OF THE COMMUNITY AGAINST EVILS MENACING THE
HEALTH, SAFETY, MORALS AND WELFARE OF THE PEOPLE, IS DUE PROCESS.  P.
391. 

2.  IN DEALING WITH THE RELATION OF EMPLOYER AND EMPLOYED, THE
LEGISLATURE HAS NECESSARILY A WIDE FIELD OF DISCRETION IN ORDER THAT
THERE MAY BE SUITABLE PROTECTION OF HEALTH AND SAFETY, AND THAT PEACE
AND GOOD ORDER MAY BE PROMOTED THROUGH REGULATIONS DESIGNED TO INSURE
WHOLESOME CONDITIONS OF WORK AND FREEDOM FROM OPPRESSION.  P. 393. 

3.  THE STATE HAS A SPECIAL INTEREST IN PROTECTING WOMEN AGAINST
EMPLOYMENT CONTRACTS WHICH THROUGH POOR WORKING CONDITIONS, LONG HOURS
OR SCANT WAGES MAY LEAVE THEM INADEQUATELY SUPPORTED AND UNDERMINE
THEIR HEALTH; BECAUSE: 

(1)  THE HEALTH OF WOMEN IS PECULIARLY RELATED TO THE VIGOR OF THE
RACE; 

(2)  WOMEN ARE ESPECIALLY LIABLE TO BE OVERREACHED AND EXPLOITED BY
UNSCRUPULOUS EMPLOYERS; AND 

(3)  THIS EXPLOITATION AND DENIAL OF A LIVING WAGE IS NOT ONLY
DETRIMENTAL TO THE HEALTH AND WELL BEING OF THE WOMEN AFFECTED BUT
CASTS A DIRECT BURDEN FOR THEIR SUPPORT UPON THE COMMUNITY.  PP. 394,
398, ET SEQ. 

4.  JUDICIAL NOTICE IS TAKEN OF THE UNPARALLELED DEMANDS FOR RELIEF
WHICH AROSE DURING THE RECENT PERIOD OF DEPRESSION AND STILL CONTINUE
TO AN ALARMING EXTENT DESPITE THE DEGREE OF ECONOMIC RECOVERY WHICH HAS
BEEN ACHIEVED.  P. 399. 

5.  A STATE LAW FOR THE SETTING OF MINIMUM WAGES FOR WOMEN IS NOT AN
ARBITRARY DISCRIMINATION BECAUSE IT DOES NOT EXTEND TO MEN.  P. 400. 

6.  A STATUTE OF THE STATE OF WASHINGTON (LAWS, 1913, C. 174;
REMINGTON'S REV. STATS., 1932, SEC. 7623 ET SEQ.) PROVIDING FOR THE
ESTABLISHMENT OF MINIMUM WAGES FOR WOMEN, HELD VALID.  ADKINS V.
CHILDREN'S HOSPITAL, 261 U.S. 525, IS OVERRULED; MOREHEAD V. NEW YORK
EX REL. TIPALDO, 298 U.S. 587, DISTINGUISHED.  P. 400. 

WEST COAST HOTEL CO. V. PARRISH ET AL. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

THIS WAS AN APPEAL FROM A JUDGMENT FOR MONEY DIRECTED BY THE SUPREME
COURT OF WASHINGTON, REVERSING THE TRIAL COURT, IN AN ACTION BY A
CHAMBERMAID AGAINST A HOTEL COMPANY TO RECOVER THE DIFFERENCE BETWEEN
THE AMOUNT OF WAGES PAID OR TENDERED TO HER AS PER CONTRACT, AND A
LARGER AMOUNT COMPUTED ON THE MINIMUM WAGE FIXED BY A STATE BOARD OR
COMMISSION. 

THE STATUTE WAS PASSED IN 1913, LONG BEFORE THE DECISION OF THIS
COURT IN THE ADKINS CASE.  IT IS IN NO SENSE AN EMERGENCY MEASURE. 

IT SETS UP BUT ONE STANDARD, THAT IS, THE WAGE MUST BE ADEQUATE FOR
THE MAINTENANCE OF THE ADULT WOMAN WORKER.  IT DOES NOT REQUIRE THAT
THE WAGE HAVE ANY RELATION TO THE REASONABLE VALUE OF THE WORKER'S
SERVICES.  THE ADKINS CASE, 261 U.S. 525, AND LIKE CASES DECIDED
SUBSEQUENTLY, CONDEMN SUCH LEGISLATION.  MURPHY V. SARDELL, 269 U.S.
530; DONHAM V. WEST-NELSON MFG. CO., 273 U.S. 657; MOREHEAD V. NEW YORK
EX REL. TIPALDO, 298 U.S. 587. 

THE COURT BELOW BASED ITS DECISION ON TWO POINTS:  (1) THAT THE
ADKINS CASE WAS NOT BINDING SINCE THE ACT THERE INVOLVED WAS AN ACT OF
CONGRESS; AND (2) THAT THE LEGISLATURE AND THE STATE COURT HAVE
CONCLUSIVELY DETERMINED THAT THE ACT IS IN THE PUBLIC INTEREST. 

THE POWER OF CONGRESS WITHIN THE DISTRICT OF COLUMBIA IS AS BROAD AS
THAT OF THE STATE WITHIN ITS OWN TERRITORY. 

IN ANY EVENT, THE SUBSEQUENT DECISIONS OF THIS COURT DEALING WITH
STATE LEGISLATION ARE DIRECTLY IN POINT. 

THE STATE LEGISLATURE AND THE STATE SUPREME COURT CANNOT DEPRIVE A
PERSON OF HIS CONSTITUTIONAL RIGHTS BY MERELY STATING THAT THE
ENACTMENT IS MADE AS AN EXERCISE OF THE POLICE POWER FOR THE CORRECTION
OF AN EXISTING EVIL.  MEYER V. NEBRASKA, 262 U.S. 399; MINNESOTA V.
BARBER, 136 U.S. 313, 319; BUCHANAN V. WARLEY, 245 U.S. 60, 74. 

THE ISSUE IS WHETHER THIS LEGISLATIVE ACT IS A VALID AND REASONABLE
EXERCISE OF THE POLICE POWER OF THE STATE.  THE CONSTITUTION DOES NOT
PROHIBIT STATES FROM REGULATING MATTERS FOR THE PUBLIC WELFARE, BUT
SIMPLY REQUIRES THAT REGULATIONS BE REASONABLE AND ADAPTED TO THAT
END.  NEBBIA V. NEW YORK, 291 U.S. 592.  THE BURDEN RESTS UPON HIM WHO
ASSAILS THE ACT TO SHOW AN IMPROPER EXERCISE OF THE LEGISLATIVE POWER. 
MISSOURI PACIFIC RY. CO. V. NORWOOD, 283 U.S. 249; BORDEN'S FARM
PRODUCTS V. BALDWIN, 293 U.S. 194. 

IT IS WITHIN THE PROVINCE OF THE LEGISLATURE TO DETERMINE WHAT
MATTERS AND CONDITIONS PERTAINING TO THE PUBLIC WELFARE REQUIRE
ATTENTION, AND THE REMEDY.  RADICE V. NEW YORK, 264 U.S. 292.  IN
PASSING THE MINIMUM WAGE LAW, THE LEGISLATURE HAD UNDER CONSIDERATION
THE NEEDS OF THE PEOPLE OF THE STATE - THE GENERAL WELFARE OF THE
PEOPLE; AND IN CONSTRUING THAT LAW THE SUPREME COURT APPROVED THE
FINDINGS OF THE LEGISLATURE AND DETERMINED THAT THE ACT PASSED WAS IN
THE INTEREST OF THE GENERAL WELFARE OF THE COMMUNITY.  LARSEN V. RICE,
100 WASH. 642. 

THIS COURT DOES NOT INQUIRE INTO THE WISDOM OF THE ACT, NOR THE
ECONOMIC CONDITIONS OF THE STATE WHICH INDUCED ITS PASSAGE; AND UNLESS
THE ACT IS ENTIRELY BEYOND THE LEGISLATIVE POWER, IT IS NOT SUBJECT TO
CONSTITUTIONAL OBJECTION.  NEBBIA V. NEW YORK, 291 U.S. 502; NORTHERN
SECURITIES CO. V. UNITED STATES, 193 U.S. 197; ATKINS V. KANSAS, 191
U.S. 297; O'GORMAN & YOUNG V. HARTFORD FIRE INS. CO., 282 U.S. 251,
257, 258. 

THIS LAW WAS PASSED BY VIRTUE OF THE RESERVED POLICE POWER OF THE
STATE OF WASHINGTON, AND HAVING RECEIVED THE APPROVAL OF THE HIGHEST
COURT OF THE STATE IS ENTITLED TO APPROVAL BY THIS COURT.  THE ADKINS
CASE CONSTRUED AN ACT OF CONGRESS WHICH HAD RECEIVED THE DISAPPROVAL OF
THE HIGHEST COURT OF THE DISTRICT OF COLUMBIA; AND WE, OF COURSE, DRAW
THE CONCLUSION THAT THE ACT OF CONGRESS, NOT HAVING RECEIVED THE
APPROVAL OF THAT COURT, WAS NOT A REASONABLE AND PROPER REMEDY FOR A
CONDITION EXISTING IN THE DISTRICT OF COLUMBIA.  IF THE ACT OF CONGRESS
SO CONSTRUED HAD BEEN UPHELD BY THE HIGHEST COURT OF THE DISTRICT OF
COLUMBIA, THEN THIS COURT WOULD ACCEPT THAT JUDGMENT IN THE ABSENCE OF
ANY FACTS TO SUPPORT A CONTRARY CONCLUSION.  ADKINS V. CHILDREN'S
HOSPITAL, 261 U.S. 525; BUNTING V. OREGON, 243 U.S. 426. 

THE PRESUMPTION OF CONSTITUTIONALITY MUST PREVAIL IN THE ABSENCE OF
ANY FACTUAL FOUNDATION IN THE RECORD FOR DECLARING THE ACT
UNCONSTITUTIONAL.  THAT IS NOT INCONSISTENT WITH OTHER DECISIONS OF THE
SUPREME COURT OF THE UNITED STATES.  SEE BUNTING V. OREGON, 243 U.S.
426; O'GORMAN & YOUNG V. HARTFORD FIRE INS. CO., 282 U.S. 251. 

MURPHY V. SARDELL, 269 U.S. 530; DONHAM V. WEST-NELSON MFG. CO., 273
U.S. 657, FOLLOW WITH APPROVAL THE DECISIONS OF THE SUPREME COURTS OF
ARIZONA AND ARKANSAS.  SO, IN NEW YORK, A LAW SIMILAR TO THIS ONE
FAILED TO RECEIVE THE APPROVAL OF THE HIGHEST COURT OF THAT
JURISDICTION, AND THIS COURT APPROVED, SUSTAINING THE COURT OF NEW YORK
(MOREHEAD V. NEW YORK EX REL. TIPALDO, 298 U.S. 587); BUT IN NO CASE
HAS A DECISION OF THE HIGHEST COURT OF A STATE UPON A LOCAL MINIMUM
WAGE REGULATION BEEN REVERSED BY THE SUPREME COURT OF THE UNITED
STATES. 

IT SEEMS VERY DIFFICULT TO UNDERSTAND WHY MINIMUM WAGES MAY NOT BE
FIXED WITHOUT VIOLATING DUE PROCESS, IF PRICES CAN BE FIXED WITHOUT
VIOLATING DUE PROCESS.  BOTH INTERFERE WITH LIBERTY TO CONTRACT.  THE
LEGISLATIVE FIXING OF A MINIMUM WAGE IS NOT REALLY DIFFERENT IN
PRINCIPLE FROM THE LEGISLATIVE DETERMINATION OF HOURS OF SERVICE, WHICH
IS CLEARLY CONSTITUTIONAL.  MILLER V. WILSON, 236 U.S. 373; MULLER V.
OREGON, 208 U.S. 412; BUNTING V. OREGON, 243 U.S. 426. 

IT IS THE SAME LIBERTY TO CONTRACT THAT IS INVADED, AND THE SAME
LEGISLATIVE POLICY THAT IS INVOLVED.  THE AIM OF BOTH TYPES OF
LEGISLATION IS TO CREATE AN EQUALITY WHERE NONE EXISTED TO PREVENT
EMPLOYERS FROM MAKING AN UNFAIR USE OF THEIR SUPERIOR BARGAINING
POWER.  MISUSE OF BARGAINING POWER LEADS TO EXTORTION, AND SURELY A
STATE SHOULD BE ABLE TO LEGISLATE AGAINST EXTORTION UNDER ITS POLICE
POWER. 

WHETHER THERE ARE ADEQUATE REASONS FOR SUBMITTING CERTAIN TYPES OF
CONTRACTS TO THE PUBLIC CONTROL DEPENDS UPON THE ECONOMIC POLICIES OF
THE STATES.  NEBBIA V. NEW YORK, 291 U.S. 502, 537. 

TO SAY THAT THE FIXING OF A MINIMUM WAGE BY THE STATE IN ANY INDUSTRY
IS IPSO FACTO ARBITRARY OR DISCRIMINATORY IS TO BEG THE QUESTION. 
COURTS ARE TO DECIDE CONCRETE CASES.  IN THIS CASE THE ISSUE IS ONE
ARISING OUT OF AN IMPLIED CONTRACT.  A GENERAL PRINCIPLE MAY BE DEDUCED
FROM PARTICULAR LINES OF DECISION, BUT THE CATEGORICAL ASSERTION THAT
ANY ATTEMPT TO FIX A MINIMUM WAGE IN INDUSTRY, DUE CONSIDERATION BEING
GIVEN TO THE TYPE INVOLVED, IS ARBITRARY AND DISCRIMINATORY, PALPABLY
INVADES THE POWER OF THE STATES.  FURTHER, IT IS AN ASSERTION BY THE
COURT OF A POWER NOT FOUND IN THE NATIONAL CONSTITUTION NOR GIVEN
THEREIN BY INFERENCE. 

IT IS SUBMITTED THAT IT IS IMPOSSIBLE TO REGULATE HOURS AND WORKING
CONDITIONS WITHOUT VESTING IN THE COMMISSION SOME POWER WITH REFERENCE
TO THE FIXING OF WAGES, OTHERWISE THE WHOLE COST OF ANY IMPROVEMENT IN
CONDITIONS OR ANY RESTRICTIONS AS TO HOURS OF SERVICE MIGHT BE BORNE BY
THE EMPLOYEE. 

THE ORDER IN QUESTION CONTAINS REGULATIONS UPON BOTH HOURS AND
CONDITIONS, AND WAGES.  IT DOES NOT APPEAR WHETHER OR NOT THE WELFARE
COMMISSION BASED THE WAGES ON WHAT WAS REASONABLE AS BETWEEN THE
EMPLOYER AND EMPLOYEE; AND CONSIDERING THE LAW, IT MUST BE THAT THE
REASONABLE RATE WAS ALSO SUFFICIENT FOR THE DECENT MAINTENANCE OF THE
WORKER.  OTHERWISE, THE COMMISSION WOULD HAVE HAD TO FIX A HIGHER
MINIMUM.  WHETHER IT DID OR DID NOT HAVE TO FIX A MINIMUM HIGHER THAN
THAT SUFFICIENT FOR DECENT MAINTENANCE DOES NOT APPEAR. 

THE LAWS APPLIED IN SIMILAR CASES SUSTAIN REGULATIONS OF SIMILAR
IMPORT, THE CONTRACT CLAUSE FORMING THE SOLE LEGITIMATE BASIS OF
APPELLANT'S ATTACK UPON THE CONSTITUTIONALITY OF THE STATUTE.  HOLDEN
V. HARDY, 169 U.S. 366. 

THE STATE HAS VARIOUS FIELDS IN WHICH IT HAS THE ABSOLUTE RIGHT TO
FIX WAGES.  IT IS AN EMPLOYER ITSELF ON A VAST SCALE.  IT EXERCISES
SUPERVISION OVER MANY TYPES OF PUBLIC SERVICE CONCERNS, AND LIMITS THE
TOTAL AMOUNT OF WAGES THAT MAY BE CHARGED TO THE PUBLIC WITHOUT
QUESTION.  ACKER V. UNITED STATES, 298 U.S. 426. 

IT IS NECESSARY FOR THE PUBLIC WELFARE THAT WATER AND LIGHT,
TRANSPORTATION, HEALTH, AND SANITARY SERVICES SHOULD BE CONTINUED; AND
IF WAGE DISPUTES ARE TO BE PERMITTED TO INTERRUPT THE SERVICE, OR TO
EMBARRASS THE PUBLIC GENERALLY, IT WOULD HARDLY BE OPEN TO QUESTION
THAT THE STATE WOULD HAVE POWER TO TAKE WHATEVER MEASURES ARE NECESSARY
TO INSURE CONTINUATION OF THE SERVICES. 

THE SAME CONSIDERATIONS APPLY IN A LARGE MEASURE TO HOTELS.  THE
COMFORT AND CONVENIENCE OF THE TRAVELING PUBLIC REQUIRE CERTAIN
STANDARDS.  HOTELS ARE SUBJECT TO INSPECTION BY PUBLIC OFFICERS.  THE
WOMEN WHO WORK FOR THE HOTELS COME IN DIRECT CONTACT WITH THE GUESTS,
AND THE HOTELS COMPLY WITH MANY STANDARDS OF SANITATION AND CLEANLINESS
THROUGH THE MAIDS AND HOUSEKEEPERS IN THEIR EMPLOY. 

INNS AND INNKEEPERS HAD BEEN REGULATED BY THE LAW LONG BEFORE THE
BUSINESS OF INSURANCE WAS CONSIDERED. 

THE STATUTE OF WASHINGTON IS WITHIN THE POLICE POWER OF THE STATE
WHEN APPLIED TO FIXING A MINIMUM WAGE FOR WOMEN EMPLOYEES IN A HOTEL. 

THE COURTS HAVE RECOGNIZED A WIDE LATITUDE FOR THE LEGISLATURE TO
DETERMINE THE NECESSITY FOR PROTECTING THE PEACE, HEALTH, SAFETY,
MORALS AND GENERAL WELFARE OF THE PEOPLE.  WHERE THERE IS NO REASONABLE
GROUND FOR SUPPOSING THAT THE LEGISLATURE'S DETERMINATION IS NOT
SUPPORTED BY THE FACTS, OR THAT ITS JUDGMENT IS ONE OF SPECULATION
RATHER THAN FROM EXPERIENCE, ITS FINDINGS ARE NOT REVIEWABLE.  POWELL
V. PENNSYLVANIA, 127 U.S. 678; LAWTON V. STEELE, 152 U.S. 133; HOLDEN
V. HARDY, 169 U.S. 366; JACOBSON V. MASSACHUSETTS, 197 U.S. 11; MULLER
V. OREGON, 208 U.S. 412; MCLEAN V. ARKANSAS, 211 U.S. 539; TANNER V.
LITTLE, 240 U.S. 369; RADICE V. NEW YORK, 264 U.S. 292; BLOCK V.
HIRSCH, 256 U.S. 135; O'GORMAN & YOUNG V. HARTFORD FIRE INS. CO., 282
U.S. 251; MISSOURI PACIFIC R. CO. V. NORWOOD, 283 U.S. 249; MOUNTAIN
TIMBER CO. V. WASHINGTON, 243 U.S. 219; STEPHENSON V. BINFORD, 287 U.S.
251, 272; HIGHLAND V. RUSSELL CAR CO., 279 U.S. 253, 258. 

THE HEALTH AND WELFARE OF WOMEN IN THE PERFORMANCE OF PHYSICAL LABOR
ARE HELD SO FUNDAMENTALLY TO AFFECT THE PUBLIC WELFARE AND TO BE SO
MUCH MORE OF AN OBJECT OF PUBLIC INTEREST AND CONCERN, THAT LEGISLATION
DESIGNED FOR THEIR SPECIAL PROTECTION HAS BEEN SUSTAINED EVEN WHEN LIKE
LEGISLATION FOR MEN MIGHT NOT BE.  MULLER V. OREGON, 208 U.S. 412;
RILEY V. MASSACHUSETTS, 232 U.S. 671; HAWLEY V. WALKER, 232 U.S. 718;
BOSLEY V. MCLAUGHLIN, 236 U.S. 385; RADICE V. NEW YORK, 264 U.S. 292. 

WHAT STANDING HAS THIS APPELLANT, IN THIS CASE, TO ATTACK THE STATUTE
AS VIOLATING THE CONTRACT RIGHTS OF THE WOMAN? 

KEEPING IN MIND THE FACT THAT A HOTEL OR AN INN IS A BUSINESS
IMPRESSED WITH A PUBLIC INTEREST; THAT THE PRESENT CONTROVERSY IS A
PRIVATE DISPUTE REGARDING THE WAGES TO BE PAID BY A CORPORATION
INNKEEPER TO A DOMESTIC; THAT THE AMOUNT IN CONTROVERSY IS ONLY
$216.19; THAT NO SHOWING IS MADE THAT PAYMENT AT THE RATE PRESCRIBED BY
THE WELFARE COMMITTEE IS UNFAIR OR UNREASONABLE, OR THAT IT IMPOSES ANY
HARDSHIP ON THE EMPLOYER, OR THAT ITS BUSINESS WILL BE MADE
UNPROFITABLE; AND THAT NO EXPRESS CONTRACT WAS SHOWN FOR A RATE OF
WAGES DIFFERENT FROM THAT PRESCRIBED IN THE RULES OF THE WELFARE
COMMISSION, WE SUBMIT THAT THERE IS NO FACTUAL BASIS FOR A GENERAL
ATTACK UPON THE CONSTITUTIONALITY OF THE STATUTE. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE CONSTITUTIONAL VALIDITY OF THE
MINIMUM WAGE LAW OF THE STATE OF WASHINGTON. 

THE ACT, ENTITLED "MINIMUM WAGES FOR WOMEN," AUTHORIZES THE FIXING OF
MINIMUM WAGES FOR WOMEN AND MINORS.  LAWS OF 1913(WASHINGTON) CHAP.
174; REMINGTON'S REV. STAT. (1932), SECS. 7623 ET SEQ.  IT PROVIDES: 

"SECTION 1.  THE WELFARE OF THE STATE OF WASHINGTON DEMANDS THAT
WOMEN AND MINORS BE PROTECTED FROM CONDITIONS OF LABOR WHICH HAVE A
PERNICIOUS EFFECT ON THEIR HEALTH AND MORALS.  THE STATE OF WASHINGTON,
THEREFORE, EXERCISING HEREIN ITS POLICE AND SOVEREIGN POWER DECLARES
THAT INADEQUATE WAGES AND UNSANITARY CONDITIONS OF LABOR EXERT SUCH
PERNICIOUS EFFECT. 

"SEC. 2.  IT SHALL BE UNLAWFUL TO EMPLOY WOMEN OR MINORS IN ANY
INDUSTRY OR OCCUPATION WITHIN THE STATE OF WASHINGTON UNDER CONDITIONS
OF LABOR DETRIMENTAL TO THEIR HEALTH OR MORALS; AND IT SHALL BE
UNLAWFUL TO EMPLOY WOMEN WORKERS IN ANY INDUSTRY WITHIN THE STATE OF
WASHINGTON AT WAGES WHICH ARE NOT ADEQUATE FOR THEIR MAINTENANCE. 

"SEC. 3.  THERE IS HEREBY CREATED A COMMISSION TO BE KNOWN AS THE
'INDUSTRIAL WELFARE COMMISSION' FOR THE STATE OF WASHINGTON, TO
ESTABLISH SUCH STANDARDS OF WAGES AND CONDITIONS OF LABOR FOR WOMEN AND
MINORS EMPLOYED WITHIN THE STATE OF WASHINGTON, AS SHALL BE HELD
HEREUNDER TO BE REASONABLE AND NOT DETRIMENTAL TO HEALTH AND MORALS,
AND WHICH SHALL BE SUFFICIENT FOR THE DECENT MAINTENANCE OF WOMEN." 

FURTHER PROVISIONS REQUIRED THE COMMISSION TO ASCERTAIN THE WAGES AND
CONDITIONS OF LABOR OF WOMEN AND MINORS WITHIN THE STATE.  PUBLIC
HEARINGS WERE TO BE HELD.  IF AFTER INVESTIGATION THE COMMISSION FOUND
THAT IN ANY OCCUPATION, TRADE OR INDUSTRY THE WAGES PAID TO WOMEN WERE
"INADEQUATE TO SUPPLY THEM NECESSARY COST OF LIVING AND TO MAINTAIN THE
WORKERS IN HEALTH," THE COMMISSION WAS EMPOWERED TO CALL A CONFERENCE
OF REPRESENTATIVES OF EMPLOYERS AND EMPLOYEES TOGETHER WITH
DISINTERESTED PERSONS REPRESENTING THE PUBLIC.  THE CONFERENCE WAS TO
RECOMMEND TO THE COMMISSION, ON ITS REQUEST, AN ESTIMATE OF A MINIMUM
WAGE ADEQUATE FOR THE PURPOSE ABOVE STATED, AND ON THE APPROVAL OF SUCH
A RECOMMENDATION IT BECAME THE DUTY OF THE COMMISSION TO ISSUE AN
OBLIGATORY ORDER FIXING MINIMUM WAGES.  ANY SUCH ORDER MIGHT BE
REOPENED AND THE QUESTION RECONSIDERED WITH THE AID OF THE FORMER
CONFERENCE OR A NEW ONE.  SPECIAL LICENSES WERE AUTHORIZED FOR THE
EMPLOYMENT OF WOMEN WHO WERE "PHYSICALLY DEFECTIVE OR CRIPPLED BY AGE
OR OTHERWISE," AND ALSO FOR APPRENTICES, AT LESS THAN THE PRESCRIBED
MINIMUM WAGE. 

BY A LATER ACT THE INDUSTRIAL WELFARE COMMISSION WAS ABOLISHED AND
ITS DUTIES WERE ASSIGNED TO THE INDUSTRIAL WELFARE COMMITTEE CONSISTING
OF THE DIRECTOR OF LABOR AND INDUSTRIES, THE SUPERVISOR OF INDUSTRIAL
INSURANCE, THE SUPERVISOR OF INDUSTRIAL RELATIONS, THE INDUSTRIAL
STATISTICIAN AND THE SUPERVISOR OF WOMEN IN INDUSTRY.  LAWS OF
1921(WASHINGTON) C. 7; REMINGTON'S REV. STAT. (1932), SECS. 10840,
10893. 

THE APPELLANT CONDUCTS A HOTEL.  THE APPELLEE ELSIE PARRISH WAS
EMPLOYED AS A CHAMBERMAID AND (WITH HER HUSBAND) BROUGHT THIS SUIT TO
RECOVER THE DIFFERENCE BETWEEN THE WAGES PAID HER AND THE MINIMUM WAGE
FIXED PURSUANT TO THE STATE LAW.  THE MINIMUM WAGE WAS $14.50 PER WEEK
OF 48 HOURS.  THE APPELLANT CHALLENGED THE ACT AS REPUGNANT TO THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE
UNITED STATES.  THE SUPREME COURT OF THE STATE, REVERSING THE TRIAL
COURT, SUSTAINED THE STATUTE AND DIRECTED JUDGMENT FOR THE PLAINTIFFS. 
PARRISH V. WEST COAST HOTEL CO., 185 WASH. 581; 55 P.(2D) 1083.  THE
CASE IS HERE ON APPEAL. 

THE APPELLANT RELIES UPON THE DECISION OF THIS COURT IN ADKINS V.
CHILDREN'S HOSPITAL, 261 U.S. 525, WHICH HELD INVALID THE DISTRICT OF
COLUMBIA MINIMUM WAGE ACT, WHICH WAS ATTACKED UNDER THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT.  ON THE ARGUMENT AT BAR, COUNSEL FOR THE
APPELLEES ATTEMPTED TO DISTINGUISH THE ADKINS CASE UPON THE GROUND THAT
THE APPELLEE WAS EMPLOYED IN A HOTEL AND THAT THE BUSINESS OF AN
INNKEEPER WAS AFFECTED WITH A PUBLIC INTEREST.  THAT EFFORT AT
DISTINCTION IS OBVIOUSLY FUTILE, AS IT APPEARS THAT IN ONE OF THE CASES
RULED BY THE ADKINS OPINION THE EMPLOYEE WAS A WOMAN EMPLOYED AS AN
ELEVATOR OPERATOR IN A HOTEL.  ADKINS V. LYONS, 261 U.S. 525, AT P.
542. 

THE RECENT CASE OF MOREHEAD V. NEW YORK EX REL. TIPALDO, 298 U.S.
587, CAME HERE ON CERTIORARI TO THE NEW YORK COURT, WHICH HAD HELD THE
NEW YORK MINIMUM WAGE ACT FOR WOMEN TO BE INVALID.  A MINORITY OF THIS
COURT THOUGHT THAT THE NEW YORK STATUTE WAS DISTINGUISHABLE IN A
MATERIAL FEATURE FROM THAT INVOLVED IN THE ADKINS CASE, AND THAT FOR
THAT AND OTHER REASONS THE NEW YORK STATUTE SHOULD BE SUSTAINED.  BUT
THE COURT OF APPEALS OF NEW YORK HAD SAID THAT IT FOUND NO MATERIAL
DIFFERENCE BETWEEN THE TWO STATUTES, AND THIS COURT HELD THAT THE
"MEANING OF THE STATUTE" AS FIXED BY THE DECISION OF THE STATE COURT
"MUST BE ACCEPTED HERE AS IF THE MEANING HAD BEEN SPECIFICALLY
EXPRESSED IN THE ENACTMENT."  ID., P. 609.  THAT VIEW LED TO THE
AFFIRMANCE BY THIS COURT OF THE JUDGMENT IN THE MOREHEAD CASE, AS THE
COURT CONSIDERED THAT THE ONLY QUESTION BEFORE IT WAS WHETHER THE
ADKINS CASE WAS DISTINGUISHABLE AND THAT RECONSIDERATION OF THAT
DECISION HAD NOT BEEN SOUGHT.  UPON THAT POINT THE COURT SAID:  "THE
PETITION FOR THE WRIT SOUGHT REVIEW UPON THE GROUND THAT THIS CASE
(MOREHEAD) IS DISTINGUISHABLE FROM THAT ONE (ADKINS).  NO APPLICATION
HAS BEEN MADE FOR RECONSIDERATION OF THE CONSTITUTIONAL QUESTION THERE
DECIDED.  THE VALIDITY OF THE PRINCIPLES UPON WHICH THAT DECISION RESTS
IS NOT CHALLENGED.  THIS COURT CONFINES ITSELF TO THE GROUND UPON WHICH
THE WRIT WAS ASKED OR GRANTED  ...  HERE THE REVIEW GRANTED WAS NO
BROADER THAN THAT SOUGHT BY THE PETITIONER  ...  HE IS NOT ENTITLED AND
DOES NOT ASK TO BE HEARD UPON THE QUESTION WHETHER THE ADKINS CASE
SHOULD BE OVERRULED.  HE MAINTAINS THAT IT MAY BE DISTINGUISHED ON THE
GROUND THAT THE STATUTES ARE VITALLY DISSIMILAR."  ID., PP. 604, 605. 

WE THINK THAT THE QUESTION WHICH WAS NOT DEEMED TO BE OPEN IN THE
MOREHEAD CASE IS OPEN AND IS NECESSARILY PRESENTED HERE.  THE SUPREME
COURT OF WASHINGTON HAS UPHELD THE MINIMUM WAGE STATUTE OF THAT STATE. 
IT HAS DECIDED THAT THE STATUTE IS A REASONABLE EXERCISE OF THE POLICE
POWER OF THE STATE.  IN REACHING THAT CONCLUSION THE STATE COURT HAS
INVOKED PRINCIPLES LONG ESTABLISHED BY THIS COURT IN THE APPLICATION OF
THE FOURTEENTH AMENDMENT.  THE STATE COURT HAS REFUSED TO REGARD THE
DECISION IN THE ADKINS CASE AS DETERMINATIVE AND HAS POINTED TO OUR
DECISIONS BOTH BEFORE AND SINCE THAT CASE AS JUSTIFYING ITS POSITION. 
WE ARE OF THE OPINION THAT THIS RULING OF THE STATE COURT DEMANDS ON
OUR PART A REEXAMINATION OF THE ADKINS CASE.  THE IMPORTANCE OF THE
QUESTION, IN WHICH MANY STATES HAVING SIMILAR LAWS ARE CONCERNED, THE
CLOSE DIVISION BY WHICH THE DECISION IN THE ADKINS CASE WAS REACHED,
AND THE ECONOMIC CONDITIONS WHICH HAVE SUPERVENED, AND IN THE LIGHT OF
WHICH THE REASONABLENESS OF THE EXERCISE OF THE PROTECTIVE POWER OF THE
STATE MUST BE CONSIDERED, MAKE IT NOT ONLY APPROPRIATE, BUT WE THINK
IMPERATIVE, THAT IN DECIDING THE PRESENT CASE THE SUBJECT SHOULD
RECEIVE FRESH CONSIDERATION. 

THE HISTORY OF THE LITIGATION OF THIS QUESTION MAY BE BRIEFLY
STATED.  THE MINIMUM WAGE STATUTE OF WASHINGTON WAS ENACTED OVER TWENTY
THREE YEARS AGO.  PRIOR TO THE DECISION IN THE INSTANT CASE IT HAD
TWICE BEEN HELD VALID BY THE SUPREME COURT OF THE STATE.  LARSEN V.
RICE, 100 WASH. 642; 171 PAC. 1037; SPOKANE HOTEL CO. V. YOUNGER, 113
WASH. 359; 194 PAC. 595.  THE WASHINGTON STATUTE IS ESSENTIALLY THE
SAME AS THAT ENACTED IN OREGON IN THE SAME YEAR.  LAWS OF 1913(OREGON)
CHAP. 62.  THE VALIDITY OF THE LATTER ACT WAS SUSTAINED BY THE SUPREME
COURT OF OREGON IN STETTLER V. O'HARA, 69 ORE.  519; 139 PAC. 743, AND
SIMPSON V. O'HARA, 70 ORE.  261; 141 PAC. 158.  THESE CASES, AFTER
REARGUMENT, WERE AFFIRMED HERE BY AN EQUALLY DIVIDED COURT, IN 1917. 
243 U.S. 629.  THE LAW OF OREGON THUS CONTINUED IN EFFECT.  THE
DISTRICT OF COLUMBIA MINIMUM WAGE LAW (40 STAT. 960) WAS ENACTED IN
1918.  THE STATUTE WAS SUSTAINED BY THE SUPREME COURT OF THE DISTRICT
IN THE ADKINS CASE.  UPON APPEAL THE COURT OF APPEALS OF THE DISTRICT
FIRST AFFIRMED THAT RULING BUT ON REHEARING REVERSED IT AND THE CASE
CAME BEFORE THIS COURT IN 1923.  THE JUDGMENT OF THE COURT OF APPEALS
HOLDING THE ACT INVALID WAS AFFIRMED, BUT WITH CHIEF JUSTICE TAFT, MR.
JUSTICE HOLMES AND MR. JUSTICE SANFORD DISSENTING, AND MR. JUSTICE
BRANDEIS TAKING NO PART.  THE DISSENTING OPINIONS TOOK THE GROUND THAT
THE DECISION WAS AT VARIANCE WITH THE PRINCIPLES WHICH THIS COURT HAD
FREQUENTLY ANNOUNCED AND APPLIED.  IN 1925 AND 1927, THE SIMILAR
MINIMUM WAGE STATUTES OF ARIZONA AND ARKANSAS WERE HELD INVALID UPON
THE AUTHORITY OF THE ADKINS CASE.  THE JUSTICES WHO HAD DISSENTED IN
THAT CASE BOWED TO THE RULING AND MR. JUSTICE BRANDEIS DISSENTED. 
MURPHY V. SARDELL, 269 U.S. 530; DONHAM V. WEST-NELSON CO., 273 U.S.
657.  THE QUESTION DID NOT COME BEFORE US AGAIN UNTIL THE LAST TERM IN
THE MOREHEAD CASE, AS ALREADY NOTED.  IN THAT CASE, BRIEFS SUPPORTING
THE NEW YORK STATUTE WERE SUBMITTED BY THE STATES OF OHIO, CONNECTICUT,
ILLINOIS, MASSACHUSETTS, NEW HAMPSHIRE, NEW JERSEY AND RHODE ISLAND. 
298 U.S., P. 604, NOTE.  THROUGHOUT THIS ENTIRE PERIOD THE WASHINGTON
STATUTE NOW UNDER CONSIDERATION HAS BEEN IN FORCE. 

THE PRINCIPLE WHICH MUST CONTROL OUR DECISION IS NOT IN DOUBT.  THE
CONSTITUTIONAL PROVISION INVOKED IS THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT GOVERNING THE STATES, AS THE DUE PROCESS CLAUSE
INVOKED IN THE ADKINS CASE GOVERNED CONGRESS.  IN EACH CASE THE
VIOLATION ALLEGED BY THOSE ATTACKING MINIMUM WAGE REGULATION FOR WOMEN
IS DEPRIVATION OF FREEDOM OF CONTRACT.  WHAT IS THIS FREEDOM?  THE
CONSTITUTION DOES NOT SPEAK OF FREEDOM OF CONTRACT.  IT SPEAKS OF
LIBERTY AND PROHIBITS THE DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS OF
LAW.  IN PROHIBITING THAT DEPRIVATION THE CONSTITUTION DOES NOT
RECOGNIZE AN ABSOLUTE AND UNCONTROLLABLE LIBERTY.  LIBERTY IN EACH OF
ITS PHASES HAS ITS HISTORY AND CONNOTATION.  BUT THE LIBERTY
SAFEGUARDED IS LIBERTY IN A SOCIAL ORGANIZATION WHICH REQUIRES THE
PROTECTION OF LAW AGAINST THE EVILS WHICH MENACE THE HEALTH, SAFETY,
MORALS AND WELFARE OF THE PEOPLE.  LIBERTY UNDER THE CONSTITUTION IS
THUS NECESSARILY SUBJECT TO THE RESTRAINTS OF DUE PROCESS, AND
REGULATION WHICH IS REASONABLE IN RELATION TO ITS SUBJECT AND IS
ADOPTED IN THE INTERESTS OF THE COMMUNITY IS DUE PROCESS. 

THIS ESSENTIAL LIMITATION OF LIBERTY IN GENERAL GOVERNS FREEDOM OF
CONTRACT IN PARTICULAR.  MORE THAN TWENTY-FIVE YEARS AGO WE SET FORTH
THE APPLICABLE PRINCIPLE IN THESE WORDS, AFTER REFERRING TO THE CASES
WHERE THE LIBERTY GUARANTEED BY THE FOURTEENTH AMENDMENT HAD BEEN
BROADLY DESCRIBED: FN1 

"BUT IT WAS RECOGNIZED IN THE CASES CITED, AS IN MANY OTHERS, THAT
FREEDOM OF CONTRACT IS A QUALIFIED AND NOT AN ABSOLUTE RIGHT.  THERE IS
NO ABSOLUTE FREEDOM TO DO AS ONE WILLS OR TO CONTRACT AS ONE CHOOSES. 
THE GUARANTY OF LIBERTY DOES NOT WITHDRAW FROM LEGISLATIVE SUPERVISION
THAT WIDE DEPARTMENT OF ACTIVITY WHICH CONSISTS OF THE MAKING OF
CONTRACTS, OR DENY TO GOVERNMENT THE POWER TO PROVIDE RESTRICTIVE
SAFEGUARDS.  LIBERTY IMPLIES THE ABSENCE OF ARBITRARY RESTRAINT, NOT
IMMUNITY FROM REASONABLE REGULATIONS AND PROHIBITIONS IMPOSED IN THE
INTERESTS OF THE COMMUNITY."  CHICAGO, B. & Q.R. CO. V. MCGUIRE, 219
U.S. 549, 567. 

THIS POWER UNDER THE CONSTITUTION TO RESTRICT FREEDOM OF CONTRACT HAS
HAD MANY ILLUSTRATIONS.  FN2  THAT IT MAY BE EXERCISED IN THE PUBLIC
INTEREST WITH RESPECT TO CONTRACTS BETWEEN EMPLOYER AND EMPLOYEE IS
UNDENIABLE.  THUS STATUTES HAVE BEEN SUSTAINED LIMITING EMPLOYMENT IN
UNDERGROUND MINES AND SMELTERS TO EIGHT HOURS A DAY (HOLDEN V. HARDY,
169 U.S. 366); IN REQUIRING REDEMPTION IN CASH OF STORE ORDERS OR OTHER
EVIDENCES OF INDEBTEDNESS ISSUED IN THE PAYMENT OF WAGES (KNOXVILLE
IRON CO. V. HARBISON, 183 U.S. 13); IN FORBIDDING THE PAYMENT OF
SEAMEN'S WAGES IN ADVANCE (PATTERSON V. BARK EUDORA, 190 U.S. 169); IN
MAKING IT UNLAWFUL TO CONTRACT TO PAY MINERS EMPLOYED AT QUANTITY RATES
UPON THE BASIS OF SCREENED COAL INSTEAD OF THE WEIGHT OF THE COAL AS
ORIGINALLY PRODUCED IN THE MINE (MCLEAN V. ARKANSAS, 211 U.S. 539); IN
PROHIBITING CONTRACTS LIMITING LIABILITY FOR INJURIES TO EMPLOYEES
(CHICAGO, B. & Q.R. CO. V. MCGUIRE, SUPRA); IN LIMITING HOURS OF WORK
OF EMPLOYEES IN MANUFACTURING ESTABLISHMENTS (BUNTING V. OREGON, 243
U.S. 426); AND IN MAINTAINING WORKMEN'S COMPENSATION LAWS (NEW YORK
CENTRAL R. CO. V. WHITE, 243 U.S. 188; MOUNTAIN TIMBER CO. V.
WASHINGTON, 243 U.S. 219).  IN DEALING WITH THE RELATION OF EMPLOYER
AND EMPLOYED, THE LEGISLATURE HAS NECESSARILY A WIDE FIELD OF
DISCRETION IN ORDER THAT THERE MAY BE SUITABLE PROTECTION OF HEALTH AND
SAFETY, AND THAT PEACE AND GOOD ORDER MAY BE PROMOTED THROUGH
REGULATIONS DESIGNED TO INSURE WHOLESOME CONDITIONS OF WORK AND FREEDOM
FROM OPPRESSION.  CHICAGO, B. & Q.R. CO. V. MCGUIRE, SUPRA, P. 570. 

THE POINT THAT HAS BEEN STRONGLY STRESSED THAT ADULT EMPLOYEES SHOULD
BE DEEMED COMPETENT TO MAKE THEIR OWN CONTRACTS WAS DECISIVELY MET
NEARLY FORTY YEARS AGO IN HOLDEN V. HARDY, SUPRA, WHERE WE POINTED OUT
THE INEQUALITY IN THE FOOTING OF THE PARTIES.  WE SAID (ID., 397): 

"THE LEGISLATURE HAS ALSO RECOGNIZED THE FACT, WHICH THE EXPERIENCE
OF LEGISLATORS IN MANY STATES HAS CORROBORATED, THAT THE PROPRIETORS OF
THESE ESTABLISHMENTS AND THEIR OPERATIVES DO NOT STAND UPON AN
EQUALITY, AND THAT THEIR INTERESTS ARE, TO A CERTAIN EXTENT,
CONFLICTING.  THE FORMER NATURALLY DESIRE TO OBTAIN AS MUCH LABOR AS
POSSIBLE FROM THEIR EMPLOYES, WHILE THE LATTER ARE OFTEN INDUCED BY THE
FEAR OF DISCHARGE TO CONFORM TO REGULATIONS WHICH THEIR JUDGMENT,
FAIRLY EXERCISED, WOULD PRONOUNCE TO BE DETRIMENTAL TO THEIR HEALTH OR
STRENGTH.  IN OTHER WORDS, THE PROPRIETORS LAY DOWN THE RULES AND THE
LABORERS ARE PRACTICALLY CONSTRAINED TO OBEY THEM.  IN SUCH CASES SELF
INTEREST IS OFTEN AN UNSAFE GUIDE, AND THE LEGISLATURE MAY PROPERLY
INTERPOSE ITS AUTHORITY." 

AND WE ADDED THAT THE FACT "THAT BOTH PARTIES ARE OF FULL AGE AND
COMPETENT TO CONTRACT DOES NOT NECESSARILY DEPRIVE THE STATE OF THE
POWER TO INTERFERE WHERE THE PARTIES DO NOT STAND UPON AN EQUALITY, OR
WHERE THE PUBLIC HEALTH DEMANDS THAT ONE PARTY TO THE CONTRACT SHALL BE
PROTECTED AGAINST HIMSELF."  "THE STATE STILL RETAINS AN INTEREST IN
HIS WELFARE, HOWEVER RECKLESS HE MAY BE.  THE WHOLE IS NO GREATER THAN
THE SUM OF ALL THE PARTS, AND WHEN THE INDIVIDUAL HEALTH, SAFETY AND
WELFARE ARE SACRIFICED OR NEGLECTED, THE STATE MUST SUFFER." 

IT IS MANIFEST THAT THIS ESTABLISHED PRINCIPLE IS PECULIARLY
APPLICABLE IN RELATION TO THE EMPLOYMENT OF WOMEN IN WHOSE PROTECTION
THE STATE HAS A SPECIAL INTEREST.  THAT PHASE OF THE SUBJECT RECEIVED
ELABORATE CONSIDERATION IN MULLER V. OREGON (1908), 208 U.S. 412, WHERE
THE CONSTITUTIONAL AUTHORITY OF THE STATE TO LIMIT THE WORKING HOURS OF
WOMEN WAS SUSTAINED.  WE EMPHASIZED THE CONSIDERATION THAT "WOMAN'S
PHYSICAL STRUCTURE AND THE PERFORMANCE OF MATERNAL FUNCTIONS PLACE HER
AT A DISADVANTAGE IN THE STRUGGLE FOR SUBSISTENCE" AND THAT HER
PHYSICAL WELL BEING "BECOMES AN OBJECT OF PUBLIC INTEREST AND CARE IN
ORDER TO PRESERVE THE STRENGTH AND VIGOR OF THE RACE."  WE EMPHASIZED
THE NEED OF PROTECTING WOMEN AGAINST OPPRESSION DESPITE HER POSSESSION
OF CONTRACTUAL RIGHTS.  WE SAID THAT "THOUGH LIMITATIONS UPON PERSONAL
AND CONTRACTUAL RIGHTS MAY BE REMOVED BY LEGISLATION, THERE IS THAT IN
HER DISPOSITION AND HABITS OF LIFE WHICH WILL OPERATE AGAINST A FULL
ASSERTION OF THOSE RIGHTS.  SHE WILL STILL BE WHERE SOME LEGISLATION TO
PROTECT HER SEEMS NECESSARY TO SECURE A REAL EQUALITY OF RIGHT."  HENCE
SHE WAS "PROPERLY PLACED IN A CLASS BY HERSELF, AND LEGISLATION
DESIGNED FOR HER PROTECTION MAY BE SUSTAINED EVEN WHEN LIKE LEGISLATION
IS NOT NECESSARY FOR MEN AND COULD NOT BE SUSTAINED."  WE CONCLUDED
THAT THE LIMITATIONS WHICH THE STATUTE THERE IN QUESTION "PLACED UPON
HER CONTRACTUAL POWERS, UPON HER RIGHT TO AGREE WITH HER EMPLOYER AS TO
THE TIME SHE SHALL LABOR" WERE "NOT IMPOSED SOLELY FOR HER BENEFIT, BUT
ALSO LARGELY FOR THE BENEFIT OF ALL."  AGAIN, IN QUONG WING V.
KIRKENDALL, 223 U.S. 59, 63, IN REFERRING TO A DIFFERENTIATION WITH
RESPECT TO THE EMPLOYMENT OF WOMEN, WE SAID THAT THE FOURTEENTH
AMENDMENT DID NOT INTERFERE WITH STATE POWER BY CREATING A "FICTITIOUS
EQUALITY."  WE REFERRED TO RECOGNIZED CLASSIFICATIONS ON THE BASIS OF
SEX WITH REGARD TO HOURS OF WORK AND IN OTHER MATTERS, AND WE OBSERVED
THAT THE PARTICULAR POINTS AT WHICH THAT DIFFERENCE SHALL BE ENFORCED
BY LEGISLATION WERE LARGELY IN THE POWER OF THE STATE.  IN LATER
RULINGS THIS COURT SUSTAINED THE REGULATION OF HOURS OF WORK OF WOMEN
EMPLOYEES IN RILEY V. MASSACHUSETTS, 232 U.S. 671(FACTORIES), MILLER V.
WILSON, 236 U.S. 373(HOTELS), AND BOSLEY V. MCLAUGHLIN, 236 U.S.
385(HOSPITALS). 

THIS ARRAY OF PRECEDENTS AND THE PRINCIPLES THEY APPLIED WERE THOUGHT
BY THE DISSENTING JUSTICES IN THE ADKINS CASE TO DEMAND THAT THE
MINIMUM WAGE STATUTE BE SUSTAINED.  THE VALIDITY OF THE DISTINCTION
MADE BY THE COURT BETWEEN A MINIMUM WAGE AND A MAXIMUM OF HOURS IN
LIMITING LIBERTY OF CONTRACT WAS ESPECIALLY CHALLENGED.  261 U.S., P.
564.  THAT CHALLENGE PERSISTS AND IS WITHOUT ANY SATISFACTORY ANSWER. 
AS CHIEF JUSTICE TAFT OBSERVED:  "IN ABSOLUTE FREEDOM OF CONTRACT THE
ONE TERM IS AS IMPORTANT AS THE OTHER, FOR BOTH ENTER EQUALLY INTO THE
CONSIDERATION GIVEN AND RECEIVED, A RESTRICTION AS TO THE ONE IS NOT
GREATER IN ESSENCE THAN THE OTHER AND IS OF THE SAME KIND.  ONE IS THE
MULTIPLIER AND THE OTHER THE MULTIPLICAND."  AND MR. JUSTICE HOLMES,
WHILE RECOGNIZING THAT "THE DISTINCTIONS OF THE LAW ARE DISTINCTIONS OF
DEGREE," COULD "PERCEIVE NO DIFFERENCE IN THE KIND OR DEGREE OF
INTERFERENCE WITH LIBERTY, THE ONLY MATTER WITH WHICH WE HAVE ANY
CONCERN, BETWEEN THE ONE CASE AND THE OTHER.  THE BARGAIN IS EQUALLY
AFFECTED WHICHEVER HALF YOU REGULATE."  ID., P. 569. 

ONE OF THE POINTS WHICH WAS PRESSED BY THE COURT IN SUPPORTING ITS
RULING IN THE ADKINS CASE WAS THAT THE STANDARD SET UP BY THE DISTRICT
OF COLUMBIA ACT DID NOT TAKE APPROPRIATE ACCOUNT OF THE VALUE OF THE
SERVICES RENDERED.  IN THE MOREHEAD CASE, THE MINORITY THOUGHT THAT THE
NEW YORK STATUTE HAD MET THAT POINT IN ITS DEFINITION OF A "FAIR WAGE"
AND THAT IT ACCORDINGLY PRESENTED A DISTINGUISHABLE FEATURE WHICH THE
COURT COULD RECOGNIZE WITHIN THE LIMITS WHICH THE MOREHEAD PETITION FOR
CERTIORARI WAS DEEMED TO PRESENT.  THE COURT, HOWEVER, DID NOT TAKE
THAT VIEW AND THE NEW YORK ACT WAS HELD TO BE ESSENTIALLY THE SAME AS
THAT FOR THE DISTRICT OF COLUMBIA.  THE STATUTE NOW BEFORE US IS LIKE
THE LATTER, BUT WE ARE UNABLE TO CONCLUDE THAT IN ITS MINIMUM WAGE
REQUIREMENT THE STATE HAS PASSED BEYOND THE BOUNDARY OF ITS BROAD
PROTECTIVE POWER. 

THE MINIMUM WAGE TO BE PAID UNDER THE WASHINGTON STATUTE IS FIXED
AFTER FULL CONSIDERATION BY REPRESENTATIVES OF EMPLOYERS, EMPLOYEES AND
THE PUBLIC.  IT MAY BE ASSUMED THAT THE MINIMUM WAGE IS FIXED IN
CONSIDERATION OF THE SERVICES THAT ARE PERFORMED IN THE PARTICULAR
OCCUPATIONS UNDER NORMAL CONDITIONS.  PROVISION IS MADE FOR SPECIAL
LICENSES AT LESS WAGES IN THE CASE OF WOMEN WHO ARE INCAPABLE OF FULL
SERVICE.  THE STATEMENT OF MR. JUSTICE HOLMES IN THE ADKINS CASE IS
PERTINENT:  "THIS STATUTE DOES NOT COMPEL ANYBODY TO PAY ANYTHING.  IT
SIMPLY FORBIDS EMPLOYMENT AT RATES BELOW THOSE FIXED AS THE MINIMUM
REQUIREMENT OF HEALTH AND RIGHT LIVING.  IT IS SAFE TO ASSUME THAT
WOMEN WILL NOT BE EMPLOYED AT EVEN THE LOWEST WAGES ALLOWED UNLESS THEY
EARN THEM, OR UNLESS THE EMPLOYER'S BUSINESS CAN SUSTAIN THE BURDEN. 
IN SHORT THE LAW IN ITS CHARACTER AND OPERATION IS LIKE HUNDREDS OF SO
CALLED POLICE LAWS THAT HAVE BEEN UPHELD."  261 U.S., P. 570.  AND
CHIEF JUSTICE TAFT FORCIBLY POINTED OUT THE CONSIDERATION WHICH IS
BASIC IN A STATUTE OF THIS CHARACTER:  "LEGISLATURES WHICH ADOPT A
REQUIREMENT OF MAXIMUM HOURS OR MINIMUM WAGES MAY BE PRESUMED TO
BELIEVE THAT WHEN SWEATING EMPLOYERS ARE PREVENTED FROM PAYING UNDULY
LOW WAGES BY POSITIVE LAW THEY WILL CONTINUE THEIR BUSINESS, ABATING
THAT PART OF THEIR PROFITS, WHICH WERE WRUNG FROM THE NECESSITIES OF
THEIR EMPLOYEES, AND WILL CONCEDE THE BETTER TERMS REQUIRED BY THE LAW;
AND THAT WHILE IN INDIVIDUAL CASES HARDSHIP MAY RESULT, THE RESTRICTION
WILL ENURE TO THE BENEFIT OF THE GENERAL CLASS OF EMPLOYEES IN WHOSE
INTEREST THE LAW IS PASSED AND SO TO THAT OF THE COMMUNITY AT LARGE." 
ID., P. 563. 

WE THINK THAT THE VIEWS THUS EXPRESSED ARE SOUND AND THAT THE
DECISION IN THE ADKINS CASE WAS A DEPARTURE FROM THE TRUE APPLICATION
OF THE PRINCIPLES GOVERNING THE REGULATION BY THE STATE OF THE RELATION
OF EMPLOYER AND EMPLOYED.  THOSE PRINCIPLES HAVE BEEN REENFORCED BY OUR
SUBSEQUENT DECISIONS.  THUS IN RADICE V. NEW YORK, 264 U.S. 292, WE
SUSTAINED THE NEW YORK STATUTE WHICH RESTRICTED THE EMPLOYMENT OF WOMEN
IN RESTAURANTS AT NIGHT.  IN O'GORMAN & YOUNG V. HARTFORD FIRE
INSURANCE CO., 282 U.S. 251, WHICH UPHELD AN ACT REGULATING THE
COMMISSIONS OF INSURANCE AGENTS, WE POINTED TO THE PRESUMPTION OF THE
CONSTITUTIONALITY OF A STATUTE DEALING WITH A SUBJECT WITHIN THE SCOPE
OF THE POLICE POWER AND TO THE ABSENCE OF ANY FACTUAL FOUNDATION OF
RECORD FOR DECIDING THAT THE LIMITS OF POWER HAD BEEN TRANSCENDED.  IN
NEBBIA V. NEW YORK, 291 U.S. 502, DEALING WITH THE NEW YORK STATUTE
PROVIDING FOR MINIMUM PRICES FOR MILK, THE GENERAL SUBJECT OF THE
REGULATION OF THE USE OF PRIVATE PROPERTY AND OF THE MAKING OF PRIVATE
CONTRACTS RECEIVED AN EXHAUSTIVE EXAMINATION AND WE AGAIN DECLARED THAT
IF SUCH LAWS "HAVE A REASONABLE RELATION TO A PROPER LEGISLATIVE
PURPOSE, AND ARE NEITHER ARBITRARY NOR DISCRIMINATORY, THE REQUIREMENTS
OF DUE PROCESS ARE SATISFIED"; THAT "WITH THE WISDOM OF THE POLICY
ADOPTED, WITH THE ADEQUACY OR PRACTICABILITY OF THE LAW ENACTED TO
FORWARD IT, THE COURTS ARE BOTH INCOMPETENT AND UNAUTHORIZED TO DEAL";
THAT "TIMES WITHOUT NUMBER WE HAVE SAID THAT THE LEGISLATURE IS
PRIMARILY THE JUDGE OF THE NECESSITY OF SUCH AN ENACTMENT, THAT EVERY
POSSIBLE PRESUMPTION IS IN FAVOR OF ITS VALIDITY, AND THAT THOUGH THE
COURT MAY HOLD VIEWS INCONSISTENT WITH THE WISDOM OF THE LAW, IT MAY
NOT BE ANNULLED UNLESS PALPABLY IN EXCESS OF LEGISLATIVE POWER."  ID.,
PP. 537, 538. 

WITH FULL RECOGNITION OF THE EARNESTNESS AND VIGOR WHICH CHARACTERIZE
THE PREVAILING OPINION IN THE ADKINS CASE, WE FIND IT IMPOSSIBLE TO
RECONCILE THAT RULING WITH THESE WELL-CONSIDERED DECLARATIONS.  WHAT
CAN BE CLOSER TO THE PUBLIC INTEREST THAN THE HEALTH OF WOMEN AND THEIR
PROTECTION FROM UNSCRUPULOUS AND OVERREACHING EMPLOYERS?  AND IF THE
PROTECTION OF WOMEN IS A LEGITIMATE END OF THE EXERCISE OF STATE POWER,
HOW CAN IT BE SAID THAT THE REQUIREMENT OF THE PAYMENT OF A MINIMUM
WAGE FAIRLY FIXED IN ORDER TO MEET THE VERY NECESSITIES OF EXISTENCE IS
NOT AN ADMISSIBLE MEANS TO THAT END?  THE LEGISLATURE OF THE STATE WAS
CLEARLY ENTITLED TO CONSIDER THE SITUATION OF WOMEN IN EMPLOYMENT, THE
FACT THAT THEY ARE IN THE CLASS RECEIVING THE LEAST PAY, THAT THEIR
BARGAINING POWER IS RELATIVELY WEAK, AND THAT THEY ARE THE READY
VICTIMS OF THOSE WHO WOULD TAKE ADVANTAGE OF THEIR NECESSITOUS
CIRCUMSTANCES.  THE LEGISLATURE WAS ENTITLED TO ADOPT MEASURES TO
REDUCE THE EVILS OF THE "SWEATING SYSTEM," THE EXPLOITING OF WORKERS AT
WAGES SO LOW AS TO BE INSUFFICIENT TO MEET THE BARE COST OF LIVING,
THUS MAKING THEIR VERY HELPLESSNESS THE OCCASION OF A MOST INJURIOUS
COMPETITION.  THE LEGISLATURE HAD THE RIGHT TO CONSIDER THAT ITS
MINIMUM WAGE REQUIREMENTS WOULD BE AN IMPORTANT AID IN CARRYING OUT ITS
POLICY OF PROTECTION.  THE ADOPTION OF SIMILAR REQUIREMENTS BY MANY
STATES EVIDENCES A DEEPSEATED CONVICTION BOTH AS TO THE PRESENCE OF THE
EVIL AND AS TO THE MEANS ADAPTED TO CHECK IT.  LEGISLATIVE RESPONSE TO
THAT CONVICTION CANNOT BE REGARDED AS ARBITRARY OR CAPRICIOUS, AND THAT
IS ALL WE HAVE TO DECIDE.  EVEN IF THE WISDOM OF THE POLICY BE REGARDED
AS DEBATABLE AND ITS EFFECTS UNCERTAIN, STILL THE LEGISLATURE IS
ENTITLED TO ITS JUDGMENT. 

THERE IS AN ADDITIONAL AND COMPELLING CONSIDERATION WHICH RECENT
ECONOMIC EXPERIENCE HAS BROUGHT INTO A STRONG LIGHT.  THE EXPLOITATION
OF A CLASS OF WORKERS WHO ARE IN AN UNEQUAL POSITION WITH RESPECT TO
BARGAINING POWER AND ARE THUS RELATIVELY DEFENCELESS AGAINST THE DENIAL
OF A LIVING WAGE IS NOT ONLY DETRIMENTAL TO THEIR HEALTH AND WELL BEING
BUT CASTS A DIRECT BURDEN FOR THEIR SUPPORT UPON THE COMMUNITY.  WHAT
THESE WORKERS LOSE IN WAGES THE TAXPAYERS ARE CALLED UPON TO PAY.  THE
BARE COST OF LIVING MUST BE MET.  WE MAY TAKE JUDICIAL NOTICE OF THE
UNPARALLELED DEMANDS FOR RELIEF WHICH AROSE DURING THE RECENT PERIOD OF
DEPRESSION AND STILL CONTINUE TO AN ALARMING EXTENT DESPITE THE DEGREE
OF ECONOMIC RECOVERY WHICH HAS BEEN ACHIEVED.  IT IS UNNECESSARY TO
CITE OFFICIAL STATISTICS TO ESTABLISH WHAT IS OF COMMON KNOWLEDGE
THROUGH THE LENGTH AND BREADTH OF THE LAND.  WHILE IN THE INSTANT CASE
NO FACTUAL BRIEF HAS BEEN PRESENTED, THERE IS NO REASON TO DOUBT THAT
THE STATE OF WASHINGTON HAS ENCOUNTERED THE SAME SOCIAL PROBLEM THAT IS
PRESENT ELSEWHERE.  THE COMMUNITY IS NOT BOUND TO PROVIDE WHAT IS IN
EFFECT A SUBSIDY FOR UNCONSCIONABLE EMPLOYERS.  THE COMMUNITY MAY
DIRECT ITS LAW-MAKING POWER TO CORRECT THE ABUSE WHICH SPRINGS FROM
THEIR SELFISH DISREGARD OF THE PUBLIC INTEREST.  THE ARGUMENT THAT THE
LEGISLATION IN QUESTION CONSTITUTES AN ARBITRARY DISCRIMINATION,
BECAUSE IT DOES NOT EXTEND TO MEN, IS UNAVAILING.  THIS COURT HAS
FREQUENTLY HELD THAT THE LEGISLATIVE AUTHORITY, ACTING WITHIN ITS
PROPER FIELD, IS NOT BOUND TO EXTEND ITS REGULATION TO ALL CASES WHICH
IT MIGHT POSSIBLY REACH.  THE LEGISLATURE "IS FREE TO RECOGNIZE DEGREES
OF HARM AND IT MAY CONFINE ITS RESTRICTIONS TO THOSE CLASSES OF CASES
WHERE THE NEED IS DEEMED TO BE CLEAREST."  IF "THE LAW PRESUMABLY HITS
THE EVIL WHERE IT IS MOST FELT, IT IS NOT TO BE OVERTHROWN BECAUSE
THERE ARE OTHER INSTANCES TO WHICH IT MIGHT HAVE BEEN APPLIED."  THERE
IS NO "DOCTRINAIRE REQUIREMENT" THAT THE LEGISLATION SHOULD BE COUCHED
IN ALL EMBRACING TERMS.  CARROLL V. GREENWICH INSURANCE CO., 199 U.S.
401, 411; PATSONE V. PENNSYLVANIA, 232 U.S. 138, 144; KEOKEE COKE CO.
V. TAYLOR, 234 U.S. 224, 227; SPROLES V. BINFORD, 286 U.S. 374, 396;
SEMLER V. OREGON BOARD, 294 U.S. 608, 610, 611.  THIS FAMILIAR
PRINCIPLE HAS REPEATEDLY BEEN APPLIED TO LEGISLATION WHICH SINGLES OUT
WOMEN, AND PARTICULAR CLASSES OF WOMEN, IN THE EXERCISE OF THE STATE'S
PROTECTIVE POWER.  MILLER V. WILSON, SUPRA, P. 384; BOSLEY V.
MCLAUGHLIN, SUPRA, PP. 394, 395; RADICE V. NEW YORK, SUPRA, PP. 295
298.  THEIR RELATIVE NEED IN THE PRESENCE OF THE EVIL, NO LESS THAN THE
EXISTENCE OF THE EVIL ITSELF, IS A MATTER FOR THE LEGISLATIVE
JUDGMENT. 

OUR CONCLUSION IS THAT THE CASE OF ADKINS V. CHILDREN'S HOSPITAL,
SUPRA, SHOULD BE, AND IT IS, OVERRULED.  THE JUDGMENT OF THE SUPREME
COURT OF THE STATE OF WASHINGTON IS AFFIRMED. 

FN1  ALLGEYER V. LOUISIANA, 165 U.S. 578; LOCHNER V. NEW YORK, 198
U.S. 45; ADAIR V. UNITED STATES, 208 U.S. 161. 

FN2  MUNN V. ILLINOIS, 94 U.S. 113; RAILROAD COMMISSION CASES, 116
U.S. 307; WILLCOX V. CONSOLIDATED GAS CO., 212 U.S. 19; ATKIN V.
KANSAS, 191 U.S. 207; MUGLER V. KANSAS, 123 U.S. 623; CROWLEY V.
CHRISTENSEN, 137 U.S. 86; GUNDLING V. CHICAGO, 177 U.S. 183; BOOTH V.
ILLINOIS, 184 U.S. 425; SCHMIDINGER V. CHICAGO, 226 U.S. 578; ARMOUR &
CO. V. NORTH DAKOTA, 240 U.S. 510; NATIONAL FIRE INSURANCE CO. V.
WANBERG, 260 U.S. 71; RADICE V. NEW YORK, 264 U.S. 292; YEISER V.
DYSART, 267 U.S. 540; LIBERTY WAREHOUSE CO. V. BURLEY TOBACCO GROWERS'
ASSN., 276 U.S. 71, 97; HIGHLAND V. RUSSELL CAR CO., 279 U.S. 253, 261;
O'GORMAN & YOUNG V. HARTFORD INSURANCE CO., 282 U.S. 249, 251; HARDWARE
DEALERS INSURANCE CO. V. GLIDDEN CO., 284 U.S. 151, 157; PACKER CORP.
V. UTAH, 285 U.S. 95, 111; STEPHENSON V. BINFORD, 287 U.S. 251, 274;
HARTFORD ACCIDENT CO. V. NELSON MFG. CO., 291 U.S. 352, 360; PETERSEN
BAKING CO. V. BRYAN, 290 U.S. 570; NEBBIA V. NEW YORK, 291 U.S. 502,
527-529. 

MR. JUSTICE SUTHERLAND, DISSENTING: 

MR. JUSTICE VAN DEVANTER, MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER
AND I THINK THE JUDGMENT OF THE COURT BELOW SHOULD BE REVERSED. 

THE PRINCIPLES AND AUTHORITIES RELIED UPON TO SUSTAIN THE JUDGMENT,
WERE CONSIDERED IN ADKINS V. CHILDREN'S HOSPITAL, 261 U.S. 525, AND
MOREHEAD V. NEW YORK EX REL. TIPALDO, 298 U.S. 587; AND THEIR LACK OF
APPLICATION TO CASES LIKE THE ONE IN HAND WAS POINTED OUT.  A
SUFFICIENT ANSWER TO ALL THAT IS NOW SAID WILL BE FOUND IN THE OPINIONS
OF THE COURT IN THOSE CASES.  NEVERTHELESS, IN THE CIRCUMSTANCES, IT
SEEMS WELL TO RESTATE OUR REASONS AND CONCLUSIONS. 

UNDER OUR FORM OF GOVERNMENT, WHERE THE WRITTEN CONSTITUTION, BY ITS
OWN TERMS, IS THE SUPREME LAW, SOME AGENCY, OF NECESSITY, MUST HAVE THE
POWER TO SAY THE FINAL WORD AS TO THE VALIDITY OF A STATUTE ASSAILED AS
UNCONSTITUTIONAL.  THE CONSTITUTION MAKES IT CLEAR THAT THE POWER HAS
BEEN INTRUSTED TO THIS COURT WHEN THE QUESTION ARISES IN A CONTROVERSY
WITHIN ITS JURISDICTION; AND SO LONG AS THE POWER REMAINS THERE, ITS
EXERCISE CANNOT BE AVOIDED WITHOUT BETRAYAL OF THE TRUST. 

IT HAS BEEN POINTED OUT MANY TIMES, AS IN THE ADKINS CASE, THAT THIS
JUDICIAL DUTY IS ONE OF GRAVITY AND DELICACY; AND THAT RATIONAL DOUBTS
MUST BE RESOLVED IN FAVOR OF THE CONSTITUTIONALITY OF THE STATUTE.  BUT
WHOSE DOUBTS, AND BY WHOM RESOLVED?  UNDOUBTEDLY IT IS THE DUTY OF A
MEMBER OF THE COURT, IN THE PROCESS OF REACHING A RIGHT CONCLUSION, TO
GIVE DUE WEIGHT TO THE OPPOSING VIEWS OF HIS ASSOCIATES; BUT IN THE
END, THE QUESTION WHICH HE MUST ANSWER IS NOT WHETHER SUCH VIEWS SEEM
SOUND TO THOSE WHO ENTERTAIN THEM, BUT WHETHER THEY CONVINCE HIM THAT
THE STATUTE IS CONSTITUTIONAL OR ENGENDER IN HIS MIND A RATIONAL DOUBT
UPON THAT ISSUE.  THE OATH WHICH HE TAKES AS A JUDGE IS NOT A COMPOSITE
OATH, BUT AN INDIVIDUAL ONE.  AND IN PASSING UPON THE VALIDITY OF A
STATUTE, HE DISCHARGES A DUTY IMPOSED UPON HIM, WHICH CANNOT BE
CONSUMMATED JUSTLY BY AN AUTOMATIC ACCEPTANCE OF THE VIEWS OF OTHERS
WHICH HAVE NEITHER CONVINCED, NOR CREATED A REASONABLE DOUBT IN, HIS
MIND.  IF UPON A QUESTION SO IMPORTANT HE THUS SURRENDER HIS DELIBERATE
JUDGMENT, HE STANDS FORSWORN.  HE CANNOT SUBORDINATE HIS CONVICTIONS TO
THAT EXTENT AND KEEP FAITH WITH HIS OATH OR RETAIN HIS JUDICIAL AND
MORAL INDEPENDENCE. 

THE SUGGESTION THAT THE ONLY CHECK UPON THE EXERCISE OF THE JUDICIAL
POWER, WHEN PROPERLY INVOKED, TO DECLARE A CONSTITUTIONAL RIGHT
SUPERIOR TO AN UNCONSTITUTIONAL STATUTE IS THE JUDGE'S OWN FACULTY OF
SELF-RESTRAINT, IS BOTH ILL CONSIDERED AND MISCHIEVOUS.  SELF-RESTRAINT
BELONGS IN THE DOMAIN OF WILL AND NOT OF JUDGMENT.  THE CHECK UPON THE
JUDGE IS THAT IMPOSED BY HIS OATH OF OFFICE, BY THE CONSTITUTION AND BY
HIS OWN CONSCIENTIOUS AND INFORMED CONVICTIONS; AND SINCE HE HAS THE
DUTY TO MAKE UP HIS OWN MIND AND ADJUDGE ACCORDINGLY, IT IS HARD TO SEE
HOW THERE COULD BE ANY OTHER RESTRAINT.  THIS COURT ACTS AS A UNIT.  IT
CANNOT ACT IN ANY OTHER WAY; AND THE MAJORITY (WHETHER A BARE MAJORITY
OR A MAJORITY OF ALL BUT ONE OF ITS MEMBERS), THEREFORE, ESTABLISHES
THE CONTROLLING RULE AS THE DECISION OF THE COURT, BINDING, SO LONG AS
IT REMAINS UNCHANGED, EQUALLY UPON THOSE WHO DISAGREE AND UPON THOSE
WHO SUBSCRIBE TO IT.  OTHERWISE, ORDERLY ADMINISTRATION OF JUSTICE
WOULD CEASE.  BUT IT IS THE RIGHT OF THOSE IN THE MINORITY TO DISAGREE,
AND SOMETIMES, IN MATTERS OF GRAVE IMPORTANCE, THEIR IMPERATIVE DUTY TO
VOICE THEIR DISAGREEMENT AT SUCH LENGTH AS THE OCCASION DEMANDS -
ALWAYS, OF COURSE, IN TERMS WHICH, HOWEVER FORCEFUL, DO NOT OFFEND THE
PROPRIETIES OR IMPUGN THE GOOD FAITH OF THOSE WHO THINK OTHERWISE. 

IT IS URGED THAT THE QUESTION INVOLVED SHOULD NOW RECEIVE FRESH
CONSIDERATION, AMONG OTHER REASONS, BECAUSE OF "THE ECONOMIC CONDITIONS
WHICH HAVE SUPERVENED"; BUT THE MEANING OF THE CONSTITUTION DOES NOT
CHANGE WITH THE EBB AND FLOW OF ECONOMIC EVENTS.  WE FREQUENTLY ARE
TOLD IN MORE GENERAL WORDS THAT THE CONSTITUTION MUST BE CONSTRUED IN
THE LIGHT OF THE PRESENT.  IF BY THAT IT IS MEANT THAT THE CONSTITUTION
IS MADE UP OF LIVING WORDS THAT APPLY TO EVERY NEW CONDITION WHICH THEY
INCLUDE, THE STATEMENT IS QUITE TRUE.  BUT TO SAY, IF THAT BE INTENDED,
THAT THE WORDS OF THE CONSTITUTION MEAN TODAY WHAT THEY DID NOT MEAN
WHEN WRITTEN - THAT IS, THAT THEY DO NOT APPLY TO A SITUATION NOW TO
WHICH THEY WOULD HAVE APPLIED THEN - IS TO ROB THAT INSTRUMENT OF THE
ESSENTIAL ELEMENT WHICH CONTINUES IT IN FORCE AS THE PEOPLE HAVE MADE
IT UNTIL THEY, AND NOT THEIR OFFICIAL AGENTS, HAVE MADE IT OTHERWISE. 

THE WORDS OF JUDGE CAMPBELL IN TWITCHELL V. BLODGETT, 13 MICH. 127,
139-140, APPLY WITH PECULIAR FORCE.  "BUT IT MAY EASILY HAPPEN," HE
SAID, "THAT SPECIFIC PROVISIONS MAY, IN UNFORESEEN EMERGENCIES, TURN
OUT TO HAVE BEEN INEXPEDIENT.  THIS DOES NOT MAKE THESE PROVISIONS ANY
LESS BINDING.  CONSTITUTIONS CAN NOT BE CHANGED BY EVENTS ALONE.  THEY
REMAIN BINDING AS THE ACTS OF THE PEOPLE IN THEIR SOVEREIGN CAPACITY,
AS THE FRAMERS OF GOVERNMENT, UNTIL THEY ARE AMENDED OR ABROGATED BY
THE ACTION PRESCRIBED BY THE AUTHORITY WHICH CREATED THEM.  IT IS NOT
COMPETENT FOR ANY DEPARTMENT OF THE GOVERNMENT TO CHANGE A
CONSTITUTION, OR DECLARE IT CHANGED, SIMPLY BECAUSE IT APPEARS ILL
ADAPTED TO A NEW STATE OF THINGS. 

"...  RESTRICTIONS HAVE, IT IS TRUE, BEEN FOUND MORE LIKELY THAN
GRANTS TO BE UNSUITED TO UNFORESEEN CIRCUMSTANCES  ...  BUT, WHERE
EVILS ARISE FROM THE APPLICATION OF SUCH REGULATIONS, THEIR FORCE
CANNOT BE DENIED OR EVADED; AND THE REMEDY CONSISTS IN REPEAL OR
AMENDMENT, AND NOT IN FALSE CONSTRUCTION."  THE PRINCIPLE IS REFLECTED
IN MANY DECISIONS OF THIS COURT.  SEE SOUTH CAROLINA V. UNITED STATES,
199 U.S. 437, 448-449; LAKE COUNTY V. ROLLINS, 130 U.S. 662, 670;
KNOWLTON V. MOORE, 178 U.S. 41, 95; RHODE ISLAND V. MASSACHUSETTS, 12
PET. 657, 723; CRAIG V. MISSOURI, 4 PET. 410, 431-432; EX PARTE BAIN,
121 U.S. 1, 12; MAXWELL V. DOW, 176 U.S. 581, 602; JARROLT V. MOBERLY,
103 U.S. 580, 586. 

THE JUDICIAL FUNCTION IS THAT OF INTERPRETATION; IT DOES NOT INCLUDE
THE POWER OF AMENDMENT UNDER THE GUISE OF INTERPRETATION.  TO MISS THE
POINT OF DIFFERENCE BETWEEN THE TWO IS TO MISS ALL THAT THE PHRASE
"SUPREME LAW OF THE LAND" STANDS FOR AND TO CONVERT WHAT WAS INTENDED
AS INESCAPABLE AND ENDURING MANDATES INTO MERE MORAL REFLECTIONS. 

IF THE CONSTITUTION, INTELLIGENTLY AND REASONABLY CONSTRUED IN THE
LIGHT OF THESE PRINCIPLES, STANDS IN THE WAY OF DESIRABLE LEGISLATION,
THE BLAME MUST REST UPON THAT INSTRUMENT, AND NOT UPON THE COURT FOR
ENFORCING IT ACCORDING TO ITS TERMS.  THE REMEDY IN THAT SITUATION -
AND THE ONLY TRUE REMEDY - IS TO AMEND THE CONSTITUTION.  JUDGE COOLEY,
IN THE FIRST VOLUME OF HIS CONSTITUTIONAL LIMITATIONS (8TH ED.), P.
124, VERY CLEARLY POINTED OUT THAT MUCH OF THE BENEFIT EXPECTED FROM
WRITTEN CONSTITUTIONS WOULD BE LOST IF THEIR PROVISIONS WERE TO BE BENT
TO CIRCUMSTANCES OR MODIFIED BY PUBLIC OPINION.  HE POINTED OUT THAT
THE COMMON LAW, UNLIKE A CONSTITUTION, WAS SUBJECT TO MODIFICATION BY
PUBLIC SENTIMENT AND ACTION WHICH THE COURTS MIGHT RECOGNIZE; BUT THAT
"A COURT OR LEGISLATURE WHICH SHOULD ALLOW A CHANGE IN PUBLIC SENTIMENT
TO INFLUENCE IT IN GIVING TO A WRITTEN CONSTITUTION A CONSTRUCTION NOT
WARRANTED BY THE INTENTION OF ITS FOUNDERS, WOULD BE JUSTLY CHARGEABLE
WITH RECKLESS DISREGARD OF OFFICIAL OATH AND PUBLIC DUTY; AND IF ITS
COURSE COULD BECOME A PRECEDENT, THESE INSTRUMENTS WOULD BE OF LITTLE
AVAIL....  WHAT A COURT IS TO DO, THEREFORE, IS TO DECLARE THE LAW AS
WRITTEN, LEAVING IT TO THE PEOPLE THEMSELVES TO MAKE SUCH CHANGES AS
NEW CIRCUMSTANCES MAY REQUIRE.  THE MEANING OF THE CONSTITUTION IS
FIXED WHEN IT IS ADOPTED, AND IT IS NOT DIFFERENT AT ANY SUBSEQUENT
TIME WHEN A COURT HAS OCCASION TO PASS UPON IT." 

THE ADKINS CASE DEALT WITH AN ACT OF CONGRESS WHICH HAD PASSED THE
SCRUTINY BOTH OF THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE
GOVERNMENT.  WE RECOGNIZED THAT THEREBY THESE DEPARTMENTS HAD AFFIRMED
THE VALIDITY OF THE STATUTE, AND PROPERLY DECLARED THAT THEIR
DETERMINATION MUST BE GIVEN GREAT WEIGHT, BUT WE THEN CONCLUDED, AFTER
THOROUGH CONSIDERATION, THAT THEIR VIEW COULD NOT BE SUSTAINED.  WE
THINK IT NOT INAPPROPRIATE NOW TO ADD A WORD ON THAT SUBJECT BEFORE
COMING TO THE QUESTION IMMEDIATELY UNDER REVIEW. 

THE PEOPLE BY THEIR CONSTITUTION CREATED THREE SEPARATE, DISTINCT,
INDEPENDENT AND COEQUAL DEPARTMENTS OF GOVERNMENT.  THE GOVERNMENTAL
STRUCTURE RESTS, AND WAS INTENDED TO REST, NOT UPON ANY ONE OR UPON ANY
TWO, BUT UPON ALL THREE OF THESE FUNDAMENTAL PILLARS.  IT SEEMS
UNNECESSARY TO REPEAT, WHAT SO OFTEN HAS BEEN SAID, THAT THE POWERS OF
THESE DEPARTMENTS ARE DIFFERENT AND ARE TO BE EXERCISED INDEPENDENTLY. 
THE DIFFERENCES CLEARLY AND DEFINITELY APPEAR IN THE CONSTITUTION. 
EACH OF THE DEPARTMENTS IS AN AGENT OF ITS CREATOR; AND ONE DEPARTMENT
IS NOT AND CANNOT BE THE AGENT OF ANOTHER.  EACH IS ANSWERABLE TO ITS
CREATOR FOR WHAT IT DOES, AND NOT TO ANOTHER AGENT.  THE VIEW,
THEREFORE, OF THE EXECUTIVE AND OF CONGRESS THAT AN ACT IS
CONSTITUTIONAL IS PERSUASIVE IN A HIGH DEGREE; BUT IT IS NOT
CONTROLLING. 

COMING, THEN, TO A CONSIDERATION OF THE WASHINGTON STATUTE, IT FIRST
IS TO BE OBSERVED THAT IT IS IN EVERY SUBSTANTIAL RESPECT IDENTICAL
WITH THE STATUTE INVOLVED IN THE ADKINS CASE.  SUCH VICES AS EXISTED IN
THE LATTER ARE PRESENT IN THE FORMER.  AND IF THE ADKINS CASE WAS
PROPERLY DECIDED, AS WE WHO JOIN IN THIS OPINION THINK IT WAS, IT
NECESSARILY FOLLOWS THAT THE WASHINGTON STATUTE IS INVALID. 

IN SUPPORT OF MINIMUM-WAGE LEGISLATION IT HAS BEEN URGED, ON THE ONE
HAND, THAT GREAT BENEFITS WILL RESULT IN FAVOR OF UNDERPAID LABOR, AND,
ON THE OTHER HAND, THAT THE DANGER OF SUCH LEGISLATION IS THAT THE
MINIMUM WILL TEND TO BECOME THE MAXIMUM AND THUS BRING DOWN THE
EARNINGS OF THE MORE EFFICIENT TOWARD THE LEVEL OF THE LESS-EFFICIENT
EMPLOYEES.  BUT WITH THESE SPECULATIONS WE HAVE NOTHING TO DO.  WE ARE
CONCERNED ONLY WITH THE QUESTION OF CONSTITUTIONALITY. 

THAT THE CLAUSE OF THE FOURTEENTH AMENDMENT WHICH FORBIDS A STATE TO
DEPRIVE ANY PERSON OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF
LAW INCLUDES FREEDOM OF CONTRACT IS SO WELL SETTLED AS TO BE NO LONGER
OPEN TO QUESTION.  NOR REASONABLY CAN IT BE DISPUTED THAT CONTRACTS OF
EMPLOYMENT OF LABOR ARE INCLUDED IN THE RULE.  ADAIR V. UNITED STATES,
208 U.S. 161, 174-175; COPPAGE V. KANSAS, 236 U.S. 1, 10, 14.  IN THE
FIRST OF THESE CASES, MR. JUSTICE HARLAN, SPEAKING FOR THE COURT, SAID,
"THE RIGHT OF A PERSON TO SELL HIS LABOR UPON SUCH TERMS AS HE DEEMS
PROPER IS, IN ITS ESSENCE, THE SAME AS THE RIGHT OF THE PURCHASER OF
LABOR TO PRESCRIBE THE CONDITIONS UPON WHICH HE WILL ACCEPT SUCH LABOR
FROM THE PERSON OFFERING TO SELL....  IN ALL SUCH PARTICULARS THE
EMPLOYER AND EMPLOYE HAVE EQUALITY OF RIGHT, AND ANY LEGISLATION THAT
DISTURBS THAT EQUALITY IS AN ARBITRARY INTERFERENCE WITH THE LIBERTY OF
CONTRACT WHICH NO GOVERNMENT CAN LEGALLY JUSTIFY IN A FREE LAND." 

IN THE ADKINS CASE WE REFERRED TO THIS LANGUAGE, AND SAID THAT WHILE
THERE WAS NO SUCH THING AS ABSOLUTE FREEDOM OF CONTRACT, BUT THAT IT
WAS SUBJECT TO A GREAT VARIETY OF RESTRAINTS, NEVERTHELESS, FREEDOM OF
CONTRACT WAS THE GENERAL RULE AND RESTRAINT THE EXCEPTION; AND THAT THE
POWER TO ABRIDGE THAT FREEDOM COULD ONLY BE JUSTIFIED BY THE EXISTENCE
OF EXCEPTIONAL CIRCUMSTANCES.  THIS STATEMENT OF THE RULE HAS BEEN MANY
TIMES AFFIRMED; AND WE DO NOT UNDERSTAND THAT IT IS QUESTIONED BY THE
PRESENT DECISION. 

WE FURTHER POINTED OUT FOUR DISTINCT CLASSES OF CASES IN WHICH THIS
COURT FROM TIME TO TIME HAD UPHELD STATUTORY INTERFERENCES WITH THE
LIBERTY OF CONTRACT.  THEY WERE, IN BRIEF, (1) STATUTES FIXING RATES
AND CHARGES TO BE EXACTED BY BUSINESSES IMPRESSED WITH A PUBLIC
INTEREST; (2) STATUTES RELATING TO CONTRACTS FOR THE PERFORMANCE OF
PUBLIC WORK; (3) STATUTES PRESCRIBING THE CHARACTER, METHODS AND TIME
FOR PAYMENT OF WAGES; AND (4) STATUTES FIXING HOURS OF LABOR.  IT IS
THE LAST CLASS THAT HAS BEEN MOST RELIED UPON AS AFFORDING SUPPORT FOR
MINIMUM-WAGE LEGISLATION; AND MUCH OF THE OPINION IN THE ADKINS CASE
(261 U.S. 547-553) IS DEVOTED TO POINTING OUT THE ESSENTIAL DISTINCTION
BETWEEN FIXING HOURS OF LABOR AND FIXING WAGES.  WHAT IS THERE SAID
NEED NOT BE REPEATED.  IT IS ENOUGH FOR PRESENT PURPOSES TO SAY THAT
STATUTES OF THE FORMER CLASS DEAL WITH AN INCIDENT OF THE EMPLOYMENT,
HAVING NO NECESSARY EFFECT UPON WAGES.  THE PARTIES ARE LEFT FREE TO
CONTRACT ABOUT WAGES, AND THEREBY EQUALIZE SUCH ADDITIONAL BURDENS AS
MAY BE IMPOSED UPON THE EMPLOYER AS A RESULT OF THE RESTRICTIONS AS TO
HOURS BY AN ADJUSTMENT IN RESPECT OF THE AMOUNT OF WAGES.  THIS COURT,
WHEREVER THE QUESTION IS ADVERTED TO, HAS BEEN CAREFUL TO DISCLAIM ANY
PURPOSE TO UPHOLD SUCH LEGISLATION AS FIXING WAGES, AND HAS RECOGNIZED
AN ESSENTIAL DIFFERENCE BETWEEN THE TWO.  E.G., BUNTING V. OREGON, 243
U.S. 426; WILSON V. NEW, 243 U.S. 332, 345-346, 353-354; AND SEE
FREUND, POLICE POWER, SEC. 318. 

WE THEN POINTED OUT THAT MINIMUM-WAGE LEGISLATION SUCH AS THAT HERE
INVOLVED DOES NOT DEAL WITH ANY BUSINESS CHARGED WITH A PUBLIC
INTEREST, OR WITH PUBLIC WORK, OR WITH A TEMPORARY EMERGENCY, OR WITH
THE CHARACTER, METHODS OR PERIODS OF WAGE PAYMENTS, OR WITH HOURS OF
LABOR, OR WITH THE PROTECTION OF PERSONS UNDER LEGAL DISABILITY, OR
WITH THE PREVENTION OF FRAUD.  IT IS, SIMPLY AND EXCLUSIVELY, A LAW
FIXING WAGES FOR ADULT WOMEN WHO ARE LEGALLY AS CAPABLE OF CONTRACTING
FOR THEMSELVES AS MEN, AND CANNOT BE SUSTAINED UNLESS UPON PRINCIPLES
APART FROM THOSE INVOLVED IN CASES ALREADY DECIDED BY THE COURT. 

TWO CASES WERE INVOLVED IN THE ADKINS DECISION.  IN ONE OF THEM IT
APPEARED THAT A WOMAN 21 YEARS OF AGE, WHO BROUGHT THE SUIT, WAS
EMPLOYED AS AN ELEVATOR OPERATOR AT A FIXED SALARY.  HER SERVICES WERE
SATISFACTORY, AND SHE WAS ANXIOUS TO RETAIN HER POSITION, AND HER
EMPLOYER, WHILE WILLING TO RETAIN HER, WAS OBLIGED TO DISPENSE WITH HER
SERVICES ON ACCOUNT OF THE PENALTIES PRESCRIBED BY THE ACT.  THE WAGES
RECEIVED BY HER WERE THE BEST SHE WAS ABLE TO OBTAIN FOR ANY WORK SHE
WAS CAPABLE OF PERFORMING; AND THE ENFORCEMENT OF THE ORDER DEPRIVED
HER, AS SHE ALLEGED, NOT ONLY OF THAT EMPLOYMENT, BUT LEFT HER UNABLE
TO SECURE ANY POSITION AT WHICH SHE COULD MAKE A LIVING WITH AS GOOD
PHYSICAL AND MORAL SURROUNDINGS AND AS GOOD WAGES AS SHE WAS RECEIVING
AND WAS WILLING TO TAKE.  THE WASHINGTON STATUTE, OF COURSE, ADMITS OF
THE SAME SITUATION AND RESULT, AND, FOR AUGHT THAT APPEARS TO THE
CONTRARY, THE SITUATION IN THE PRESENT CASE MAY HAVE BEEN THE SAME AS
THAT JUST DESCRIBED.  CERTAINLY, TO THE EXTENT THAT THE STATUTE APPLIES
TO SUCH CASES, IT CANNOT BE JUSTIFIED AS A REASONABLE RESTRAINT UPON
THE FREEDOM OF CONTRACT.  ON THE CONTRARY, IT IS ESSENTIALLY
ARBITRARY. 

NEITHER THE STATUTE INVOLVED IN THE ADKINS CASE NOR THE WASHINGTON
STATUTE, SO FAR AS IT IS INVOLVED HERE, HAS THE SLIGHTEST RELATION TO
THE CAPACITY OR EARNING POWER OF THE EMPLOYEE, TO THE NUMBER OF HOURS
WHICH CONSTITUTE THE DAY'S WORK, THE CHARACTER OF THE PLACE WHERE THE
WORK IS TO BE DONE, OR THE CIRCUMSTANCES OR SURROUNDINGS OF THE
EMPLOYMENT.  THE SOLE BASIS UPON WHICH THE QUESTION OF VALIDITY RESTS
IS THE ASSUMPTION THAT THE EMPLOYEE IS ENTITLED TO RECEIVE A SUM OF
MONEY SUFFICIENT TO PROVIDE A LIVING FOR HER, KEEP HER IN HEALTH AND
PRESERVE HER MORALS.  AND, AS WE POINTED OUT AT SOME LENGTH IN THAT
CASE (PP. 555-557), THE QUESTION THUS PRESENTED FOR THE DETERMINATION
OF THE BOARD CAN NOT BE SOLVED BY ANY GENERAL FORMULA PRESCRIBED BY A
STATUTORY BUREAU, SINCE IT IS NOT A COMPOSITE BUT AN INDIVIDUAL
QUESTION TO BE ANSWERED FOR EACH INDIVIDUAL, CONSIDERED BY HERSELF. 
WHAT WE SAID FURTHER IN THAT CASE (PP. 557-559), IS EQUALLY APPLICABLE
HERE:    "THE LAW TAKES ACCOUNT OF THE NECESSITIES OF ONLY ONE PARTY TO
THE CONTRACT.  IT IGNORES THE NECESSITIES OF THE EMPLOYER BY COMPELLING
HIM TO PAY NOT LESS THAN A CERTAIN SUM, NOT ONLY WHETHER THE EMPLOYEE
IS CAPABLE OF EARNING IT, BUT IRRESPECTIVE OF THE ABILITY OF HIS
BUSINESS TO SUSTAIN THE BURDEN, GENEROUSLY LEAVING HIM, OF COURSE, THE
PRIVILEGE OF ABANDONING HIS BUSINESS AS AN ALTERNATIVE FOR GOING ON AT
A LOSS.  WITHIN THE LIMITS OF THE MINIMUM SUM, HE IS PRECLUDED, UNDER
PENALTY OF FINE AND IMPRISONMENT, FROM ADJUSTING COMPENSATION TO THE
DIFFERING MERITS OF HIS EMPLOYEES.  IT COMPELS HIM TO PAY AT LEAST THE
SUM FIXED IN ANY EVENT, BECAUSE THE EMPLOYEE NEEDS IT, BUT REQUIRES NO
SERVICE OF EQUIVALENT VALUE FROM THE EMPLOYEE.  IT THEREFORE UNDERTAKES
TO SOLVE BUT ONE-HALF OF THE PROBLEM.  THE OTHER HALF IS THE
ESTABLISHMENT OF A CORRESPONDING STANDARD OF EFFICIENCY, AND THIS FORMS
NO PART OF THE POLICY OF THE LEGISLATION, ALTHOUGH IN PRACTICE THE
FORMER HALF WITHOUT THE LATTER MUST LEAD TO ULTIMATE FAILURE, IN
ACCORDANCE WITH THE INEXORABLE LAW THAT NO ONE CAN CONTINUE
INDEFINITELY TO TAKE OUT MORE THAN HE PUTS IN WITHOUT ULTIMATELY
EXHAUSTING THE SUPPLY.  THE LAW IS NOT CONFINED TO THE GREAT AND
POWERFUL EMPLOYERS BUT EMBRACES THOSE WHOSE BARGAINING POWER MAY BE AS
WEAK AS THAT OF THE EMPLOYEE.  IT TAKES NO ACCOUNT OF PERIODS OF STRESS
AND BUSINESS DEPRESSION, OF CRIPPLING LOSSES, WHICH MAY LEAVE THE
EMPLOYER HIMSELF WITHOUT ADEQUATE MEANS OF LIVELIHOOD.  TO THE EXTENT
THAT THE SUM FIXED EXCEEDS THE FAIR VALUE OF THE SERVICES RENDERED, IT
AMOUNTS TO A COMPULSORY EXACTION FROM THE EMPLOYER FOR THE SUPPORT OF A
PARTIALLY INDIGENT PERSON, FOR WHOSE CONDITION THERE RESTS UPON HIM NO
PECULIAR RESPONSIBILITY, AND THEREFORE, IN EFFECT, ARBITRARILY SHIFTS
TO HIS SHOULDERS A BURDEN WHICH, IF IT BELONGS TO ANYBODY, BELONGS TO
SOCIETY AS A WHOLE. 

"THE FEATURE OF THIS STATUTE WHICH, PERHAPS MORE THAN ANY OTHER, PUTS
UPON IT THE STAMP OF INVALIDITY IS THAT IT EXACTS FROM THE EMPLOYER AN
ARBITRARY PAYMENT FOR A PURPOSE AND UPON A BASIS HAVING NO CAUSAL
CONNECTION WITH HIS BUSINESS, OR THE CONTRACT OR THE WORK THE EMPLOYEE
ENGAGES TO DO.  THE DECLARED BASIS, AS ALREADY POINTED OUT, IS NOT THE
VALUE OF THE SERVICE RENDERED, BUT THE EXTRANEOUS CIRCUMSTANCE THAT THE
EMPLOYEE NEEDS TO GET A PRESCRIBED SUM OF MONEY TO INSURE HER
SUBSISTENCE, HEALTH AND MORALS.  THE ETHICAL RIGHT OF EVERY WORKER, MAN
OR WOMAN, TO A LIVING WAGE MAY BE CONCEDED.  ONE OF THE DECLARED AND
IMPORTANT PURPOSES OF TRADE ORGANIZATIONS IS TO SECURE IT.  AND WITH
THAT PRINCIPLE AND WITH EVERY LEGITIMATE EFFORT TO REALIZE IT IN FACT,
NO ONE CAN QUARREL; BUT THE FALLACY OF THE PROPOSED METHOD OF ATTAINING
IT IS THAT IT ASSUMES THAT EVERY EMPLOYER IS BOUND AT ALL EVENTS TO
FURNISH IT.  THE MORAL REQUIREMENT IMPLICIT IN EVERY CONTRACT OF
EMPLOYMENT, VIZ, THAT THE AMOUNT TO BE PAID AND THE SERVICE TO BE
RENDERED SHALL BEAR TO EACH OTHER SOME RELATION OF JUST EQUIVALENCE, IS
COMPLETELY IGNORED.  THE NECESSITIES OF THE EMPLOYEE ARE ALONE
CONSIDERED AND THESE ARISE OUTSIDE OF THE EMPLOYMENT, ARE THE SAME WHEN
THERE IS NO EMPLOYMENT, AND AS GREAT IN ONE OCCUPATION AS IN ANOTHER. 
CERTAINLY THE EMPLOYER BY PAYING A FAIR EQUIVALENT FOR THE SERVICE
RENDERED, THOUGH NOT SUFFICIENT TO SUPPORT THE EMPLOYEE, HAS NEITHER
CAUSED NOR CONTRIBUTED TO HER POVERTY.  ON THE CONTRARY, TO THE EXTENT
OF WHAT HE PAYS HE HAS RELIEVED IT.  IN PRINCIPLE, THERE CAN BE NO
DIFFERENCE BETWEEN THE CASE OF SELLING LABOR AND THE CASE OF SELLING
GOODS.  IF ONE GOES TO THE BUTCHER, THE BAKER OR GROCER TO BUY FOOD, HE
IS MORALLY ENTITLED TO OBTAIN THE WORTH OF HIS MONEY BUT HE IS NOT
ENTITLED TO MORE.  IF WHAT HE GETS IS WORTH WHAT HE PAYS HE IS NOT
JUSTIFIED IN DEMANDING MORE SIMPLY BECAUSE HE NEEDS MORE; AND THE
SHOPKEEPER, HAVING DEALT FAIRLY AND HONESTLY IN THAT TRANSACTION, IS
NOT CONCERNED IN ANY PECULIAR SENSE WITH THE QUESTION OF HIS CUSTOMER'S
NECESSITIES.  SHOULD A STATUTE UNDERTAKE TO VEST IN A COMMISSION POWER
TO DETERMINE THE QUANTITY OF FOOD NECESSARY FOR INDIVIDUAL SUPPORT AND
REQUIRE THE SHOPKEEPER, IF HE SELL TO THE INDIVIDUAL AT ALL, TO FURNISH
THAT QUANTITY AT NOT MORE THAN A FIXED MAXIMUM, IT WOULD UNDOUBTEDLY
FALL BEFORE THE CONSTITUTIONAL TEST.  THE FALLACY OF ANY ARGUMENT IN
SUPPORT OF THE VALIDITY OF SUCH A STATUTE WOULD BE QUICKLY EXPOSED. 
THE ARGUMENT IN SUPPORT OF THAT NOW BEING CONSIDERED IS EQUALLY
FALLACIOUS, THOUGH THE WEAKNESS OF IT MAY NOT BE SO PLAIN.  A STATUTE
REQUIRING AN EMPLOYER TO PAY IN MONEY, TO PAY AT PRESCRIBED AND REGULAR
INTERVALS, TO PAY THE VALUE OF THE SERVICES RENDERED, EVEN TO PAY WITH
FAIR RELATION TO THE EXTENT OF THE BENEFIT OBTAINED FROM THE SERVICE,
WOULD BE UNDERSTANDABLE.  BUT A STATUTE WHICH PRESCRIBES PAYMENT
WITHOUT REGARD TO ANY OF THESE THINGS AND SOLELY WITH RELATION TO
CIRCUMSTANCES APART FROM THE CONTRACT OF EMPLOYMENT, THE BUSINESS
AFFECTED BY IT AND THE WORK DONE UNDER IT, IS SO CLEARLY THE PRODUCT OF
A NAKED, ARBITRARY EXERCISE OF POWER THAT IT CANNOT BE ALLOWED TO STAND
UNDER THE CONSTITUTION OF THE UNITED STATES." 

WHETHER THIS WOULD BE EQUALLY OR AT ALL TRUE IN RESPECT OF THE
STATUTES OF SOME OF THE STATES WE ARE NOT CALLED UPON TO SAY.  THEY ARE
NOT NOW BEFORE US; AND IT IS ENOUGH THAT IT APPLIES IN EVERY PARTICULAR
TO THE WASHINGTON STATUTE NOW UNDER CONSIDERATION. 

THE WASHINGTON STATUTE, LIKE THE ONE FOR THE DISTRICT OF COLUMBIA,
FIXES MINIMUM WAGES FOR ADULT WOMEN.  ADULT MEN AND THEIR EMPLOYERS ARE
LEFT FREE TO BARGAIN AS THEY PLEASE; AND IT IS A SIGNIFICANT AND AN
IMPORTANT FACT THAT ALL STATE STATUTES TO WHICH OUR ATTENTION HAS BEEN
CALLED ARE OF LIKE CHARACTER.  THE COMMON-LAW RULES RESTRICTING THE
POWER OF WOMEN TO MAKE CONTRACTS HAVE, UNDER OUR SYSTEM, LONG SINCE
PRACTICALLY DISAPPEARED.  WOMEN TODAY STAND UPON A LEGAL AND POLITICAL
EQUALITY WITH MEN.  THERE IS NO LONGER ANY REASON WHY THEY SHOULD BE
PUT IN DIFFERENT CLASSES IN RESPECT OF THEIR LEGAL RIGHT TO MAKE
CONTRACTS; NOR SHOULD THEY BE DENIED, IN EFFECT, THE RIGHT TO COMPETE
WITH MEN FOR WORK PAYING LOWER WAGES WHICH MEN MAY BE WILLING TO
ACCEPT.  AND IT IS AN ARBITRARY EXERCISE OF THE LEGISLATIVE POWER TO DO
SO.  IN THE TIPALDO CASE, 298 U.S. 587, 615, IT APPEARED THAT THE NEW
YORK LEGISLATURE HAD PASSED TWO MINIMUM-WAGE MEASURES - ONE DEALING
WITH WOMEN ALONE, THE OTHER WITH BOTH MEN AND WOMEN.  THE ACT WHICH
INCLUDED MEN WAS VETOED BY THE GOVERNOR.  THE OTHER, APPLYING TO WOMEN
ALONE, WAS APPROVED.  THE "FACTUAL BACKGROUND" IN RESPECT OF BOTH
MEASURES WAS SUBSTANTIALLY THE SAME.  IN POINTING OUT THE ARBITRARY
DISCRIMINATION WHICH RESULTED (PP. 615-617) WE SAID: 

"THESE LEGISLATIVE DECLARATIONS, IN FORM OF FINDINGS OR RECITALS OF
FACT, SERVE WELL TO ILLUSTRATE WHY ANY MEASURE THAT DEPRIVES EMPLOYERS
AND ADULT WOMEN OF FREEDOM TO AGREE UPON WAGES, LEAVING EMPLOYERS AND
MEN EMPLOYEES FREE SO TO DO, IS NECESSARILY ARBITRARY.  MUCH, IF NOT
ALL, THAT IN THEM IS SAID IN JUSTIFICATION OF THE REGULATIONS THAT THE
ACT IMPOSES IN RESPECT OF WOMEN'S WAGES APPLIES WITH EQUAL FORCE IN
SUPPORT OF THE SAME REGULATION OF MEN'S WAGES.  WHILE MEN ARE LEFT FREE
TO FIX THEIR WAGES BY AGREEMENT WITH EMPLOYERS, IT WOULD BE FANCIFUL TO
SUPPOSE THAT THE REGULATION OF WOMEN'S WAGES WOULD BE USEFUL TO PREVENT
OR LESSEN THE EVILS LISTED IN THE FIRST SECTION OF THE ACT.  MEN IN
NEED OF WORK ARE AS LIKELY AS WOMEN TO ACCEPT THE LOW WAGES OFFERED BY
UNSCRUPULOUS EMPLOYERS.  MEN IN GREATER NUMBER THAN WOMEN SUPPORT
THEMSELVES AND DEPENDENTS AND BECAUSE OF NEED WILL WORK FOR WHATEVER
WAGES THEY CAN GET AND THAT WITHOUT REGARD TO THE VALUE OF THE SERVICE
AND EVEN THOUGH THE PAY IS LESS THAN MINIMA PRESCRIBED IN ACCORDANCE
WITH THIS ACT.  IT IS PLAIN THAT, UNDER CIRCUMSTANCES SUCH AS THOSE
PORTRAYED IN THE 'FACTUAL BACKGROUND' PRESCRIBING OF MINIMUM WAGES FOR
WOMEN ALONE WOULD UNREASONABLY RESTRAIN THEM IN COMPETITION WITH MEN
AND TEND ARBITRARILY TO DEPRIVE THEM OF EMPLOYMENT AND A FAIR CHANCE TO
FIND WORK." 

AN APPEAL TO THE PRINCIPLE THAT THE LEGISLATURE IS FREE TO RECOGNIZE
DEGREES OF HARM AND CONFINE ITS RESTRICTIONS ACCORDINGLY, IS BUT TO BEG
THE QUESTION, WHICH IS - SINCE THE CONTRACTUAL RIGHTS OF MEN AND WOMEN
ARE THE SAME, DOES THE LEGISLATION HERE INVOLVED, BY RESTRICTING ONLY
THE RIGHTS OF WOMEN TO MAKE CONTRACTS AS TO WAGES, CREATE AN ARBITRARY
DISCRIMINATION?  WE THINK IT DOES.  DIFFERENCE OF SEX AFFORDS NO
REASONABLE GROUND FOR MAKING A RESTRICTION APPLICABLE TO THE WAGE
CONTRACTS OF ALL WORKING WOMEN FROM WHICH LIKE CONTRACTS OF ALL WORKING
MEN ARE LEFT FREE.  CERTAINLY A SUGGESTION THAT THE BARGAINING ABILITY
OF THE AVERAGE WOMAN IS NOT EQUAL TO THAT OF THE AVERAGE MAN WOULD LACK
SUBSTANCE.  THE ABILITY TO MAKE A FAIR BARGAIN, AS EVERYONE KNOWS, DOES
NOT DEPEND UPON SEX. 

IF, IN THE LIGHT OF THE FACTS, THE STATE LEGISLATION, WITHOUT REASON
OR FOR REASONS OF MERE EXPEDIENCY, EXCLUDED MEN FROM THE PROVISIONS OF
THE LEGISLATION, THE POWER WAS EXERCISED ARBITRARILY.  ON THE OTHER
HAND, IF SUCH LEGISLATION IN RESPECT OF MEN WAS PROPERLY OMITTED ON THE
GROUND THAT IT WOULD BE UNCONSTITUTIONAL, THE SAME CONCLUSION OF
UNCONSTITUTIONALITY IS INESCAPABLE IN RESPECT OF SIMILAR LEGISLATIVE
RESTRAINT IN THE CASE OF WOMEN, 261 U.S. 553. 

FINALLY, IT MAY BE SAID THAT A STATUTE ABSOLUTELY FIXING WAGES IN THE
VARIOUS INDUSTRIES AT DEFINITE SUMS AND FORBIDDING EMPLOYERS AND
EMPLOYEES FROM CONTRACTING FOR ANY OTHER THAN THOSE DESIGNATED, WOULD
PROBABLY NOT BE THOUGHT TO BE CONSTITUTIONAL.  IT IS HARD TO SEE WHY
THE POWER TO FIX MINIMUM WAGES DOES NOT CONNOTE A LIKE POWER IN RESPECT
OF MAXIMUM WAGES.  AND YET, IF BOTH POWERS BE EXERCISED IN SUCH A WAY
THAT THE MINIMUM AND THE MAXIMUM SO NEARLY APPROACH EACH OTHER AS TO
BECOME SUBSTANTIALLY THE SAME, THE RIGHT TO MAKE ANY CONTRACT IN
RESPECT OF WAGES WILL HAVE BEEN COMPLETELY ABROGATED. 

A MORE COMPLETE DISCUSSION MAY BE FOUND IN THE ADKINS AND TIPALDO
CASES CITED SUPRA.
..END :








DUGAS V. AMERICAN SURETY CO., 300 U.S. 414 


NO. 340.  ARGUED JANUARY 13, 14, 1937.  - DECIDED MARCH 29, 1937.  - 82
F.(2D) 953, AFFIRMED. 


IN A PROCEEDING BROUGHT IN THE DISTRICT COURT BY A SURETY COMPANY
UNDER THE INTERPLEADER ACT OF MAY 8, 1926, TO INTERPLEAD THE SEVERAL
CLAIMANTS UPON A QUALIFYING BOND, THE AMOUNT OF THE BOND WAS PAID BY
THE SURETY INTO THE REGISTRY OF THE COURT, AND TWO DECREES WERE
ENTERED, THE FIRST DISCHARGING THE SURETY FROM FURTHER LIABILITY ON THE
BOND AND ENJOINING THE SEVERAL CLAIMANTS FROM PROSECUTING ANY SUIT
AGAINST THE SURETY ON ACCOUNT OF ANY CLAIM OR RIGHT ARISING OUT OF THE
BOND; AND A LATER, DETERMINING THE RIGHTS OF THE SEVERAL CLAIMANTS IN
THE DEPOSITED FUND AND DIRECTING ITS DISTRIBUTION AMONG THEM ON A PRO
RATA BASIS.  NO APPEAL WAS TAKEN FROM EITHER DECREE.  IN AN EARLIER
PROCEEDING IN A STATE COURT, ONE OF THE CLAIMANTS HAD OBTAINED A
JUDGMENT AGAINST THE SURETY UNDER THE QUALIFYING BOND, FROM WHICH
JUDGMENT AN APPEAL BY THE SURETY WAS PENDING, AN APPEAL BOND SUSPENDING
EXECUTION HAVING BEEN FILED.  HE OBJECTED TO BEING BROUGHT INTO THE
INTERPLEADER, BUT AGREED TO THE SECOND DECREE IN IT AND TOOK HIS SHARE
OF THE DISTRIBUTION.  HELD: 

1.  THE DISTRICT COURT IN THE INTERPLEADER SUIT HAD JURISDICTION OF
BOTH THE SUBJECT MATTER AND THE PARTIES.  P. 425. 

2.  THE DECREES IN THE INTERPLEADER SUIT COMPLETELY TERMINATED THE
LIABILITY OF THE SURETY ON THE QUALIFYING BOND AND FIXED THE FULL
MEASURE OF THE CLAIMANT'S RIGHT UNDER THAT BOND.  P. 425. 

3.  RULINGS OF THE DISTRICT COURT IN THE INTERPLEADER SUIT ON THE
OBJECTION OF THE CLAIMANT TO BEING BROUGHT INTO THE SUIT, ON THE
BEARING AND EFFECT OF THE PRIOR JUDGMENT AND PROCEEDINGS IN THE STATE
COURT, AND ON THE RIGHT OF THE SURETY TO BE DISCHARGED FROM FURTHER
LIABILITY IN RESPECT OF HIS CLAIM, WERE ALL MADE IN THE EXERCISE OF THE
COURT'S JURISDICTION, WERE SUBJECT TO CHALLENGE AND REEXAMINATION ONLY
ON APPEAL, AND BECAME CONCLUSIVE ON THE CLAIMANT IN THE ABSENCE OF AN
APPEAL.  P. 425. 

4.  THOUGH THE PAYMENT WAS INTO THE COURT'S REGISTRY, AND NOT
DIRECTLY TO THE CLAIMANTS, IT NEVERTHELESS WAS A LAWFUL AND EFFECTIVE
PAYMENT UNDER THE INTERPLEADER ACT.  P. 425. 

5.  AS THE JUDGMENT IN THE STATE COURT WAS BASED SOLELY ON THE
QUALIFYING BOND, THE PAYMENT OF THE BOND AND DISCHARGE OF THE SURETY,
AS EFFECTED IN THE INTERPLEADER SUIT, OPERATED, UNDER RECOGNIZED
PRINCIPLES OF LAW AND EQUITY, TO EXTINGUISH THE CLAIMANT'S RIGHT UNDER
THE JUDGMENT.  P. 425. 

6.  IN SUBSEQUENTLY BRINGING SUIT IN THE STATE COURT ON THE APPEAL
BOND AND ATTEMPTING TO REALIZE ON THE PRIOR JUDGMENT, THE CLAIMANT
CONTRAVENED THE FAIR INTENDMENT OF THE DECREES IN THE INTERPLEADER
SUIT.  P. 426. 

7. AS THE CLAIMANT'S RIGHT UNDER THE STATE COURT JUDGMENT WAS
EXTINGUISHED, HE WAS NO MORE ENTITLED TO REALIZE ON THE JUDGMENT BY
SUING THE SURETY ON THE APPEAL BOND THAN BY SUING THE PRINCIPAL.  P.
428. 

8.  AND AS THE SURETY ON THE APPEAL BOND WOULD BE ENTITLED TO
REIMBURSEMENT FROM THE PRINCIPAL WERE JUDGMENT TO GO AGAINST THE
FORMER, THE PRINCIPAL MAY BE HEARD TO COMPLAIN.  P. 428. 

9.  THE DISTRICT COURT HAS JURISDICTION TO ENTERTAIN A SUPPLEMENTAL
BILL IN AID OF AND TO EFFECTUATE ITS PRIOR DECREES.  P. 428. 

10.  SUCH A BILL IS ANCILLARY AND DEPENDENT, AND THE JURISDICTION
FOLLOWS THAT OF THE ORIGINAL SUIT, REGARDLESS OF THE CITIZENSHIP OF THE
PARTIES TO THE BILL OR THE AMOUNT IN CONTROVERSY.  P. 428. 

11.  THE POWER OF THE DISTRICT COURT TO ENJOIN THE CLAIMANT FROM
FURTHER PROSECUTION OF HIS SUIT IN THE STATE COURT ON THE APPEAL BOND
FINDS SUPPORT IN SECS. 2 AND 3 OF THE INTERPLEADER ACT, AS WELL AS IN
SETTLED ADJUDICATIONS RESPECTING THE POWER OF A FEDERAL COURT TO
PROTECT ITS JURISDICTION AND DECREES.  P. 428. 

DUGAS V. AMERICAN SURETY CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

STATEMENT BY MR. JUSTICE VAN DEVANTER.* 

*OPINION BEGINS ON P. 423, INFRA. 

THIS CASE PRESENTS A CONTROVERSY OVER THE SCOPE AND EFFECT OF THE
DECREES OF A FEDERAL DISTRICT COURT IN A SUIT BROUGHT BY A SURETY
COMPANY UNDER THE INTERPLEADER ACT OF MAY 8, 1926,  FN1  AND OVER THE
PROPRIETY OF SUBSEQUENT PROCEEDINGS IN THE SAME COURT UPON A
SUPPLEMENTAL BILL BROUGHT IN AID OF AND TO EFFECTUATE THAT DECREE. 

IT WILL BE HELPFUL TO STATE THE FACTS WITH SOME DETAIL. 

FEBRUARY 12, 1930, THE LUMBERMEN'S RECIPROCAL ASSOCIATION, A TEXAS
INSURANCE CORPORATION, BY WAY OF QUALIFYING ITSELF TO ENGAGE IN WRITING
WORKMEN'S COMPENSATION AND OTHER INSURANCE IN LOUISIANA, EXECUTED A
BOND, IN THE SUM OF $20,000.00, CONDITIONED FOR THE PAYMENT OF CLAIMS
LAWFULLY ARISING AGAINST IT BY REASON OF INSURANCE SO WRITTEN.  THE
BOND WAS GIVEN CONFORMABLY TO A LOUISIANA STATUTE,  FN2  AND WAS
EXECUTED BY THE AMERICAN SURETY COMPANY, A NEW YORK CORPORATION, AS
SURETY.  LATER IN 1930, AND AFTER WRITING A SUBSTANTIAL VOLUME OF
INSURANCE IN LOUISIANA, THE LUMBERMEN'S RECIPROCAL ASSOCIATION BECAME
EMBARRASSED AND WAS PLACED IN THE HANDS OF A RECEIVER BY A COURT IN
TEXAS. 

APRIL 14, 1931, IN A SUIT BROUGHT IN A LOUISIANA COURT, ETIENNE
DUGAS, WHO HAD A CLAIM AGAINST THE LUMBERMEN'S RECIPROCAL ASSOCIATION
ARISING OUT OF WORKMEN'S COMPENSATION INSURANCE WRITTEN BY IT IN
LOUISIANA, RECOVERED AGAINST THE AMERICAN SURETY COMPANY, AS SURETY ON
THE QUALIFYING BOND, A JUDGMENT FOR THE PAYMENT OF $20.00 PER WEEK FOR
NOT MORE THAN 300 WEEKS COMMENCING MAY 15, 1930, SUBJECT TO
MODIFICATION AS TO FUTURE PAYMENTS IF HIS DISABILITY WAS RELIEVED OR
REDUCED, AND FOR $250.00 FOR MEDICAL BILLS, TOGETHER WITH COSTS. 

THE AMERICAN SURETY COMPANY APPEALED TO THE COURT OF APPEAL FROM THAT
JUDGMENT, AND, FOR THE PURPOSE OF SUSPENDING EXECUTION PENDING THE
APPEAL, IT EXECUTED A BOND CONDITIONED THAT IT SHOULD DILIGENTLY
PROSECUTE ITS APPEAL AND SATISFY WHATEVER JUDGMENT MIGHT BE RENDERED
AGAINST IT IF CAST IN THE APPEAL.  THE APPEAL BOND WAS GIVEN
CONFORMABLY TO A LAW OF THE STATE,  FN3  WAS IN THE SUM OF $10,000.00
AND WAS EXECUTED BY THE NEW YORK CASUALTY COMPANY AS SURETY.  THE
APPEAL WAS PERFECTED AND THE RECORD DULY FILED IN THE COURT OF APPEAL,
BUT NOTHING FURTHER WAS DONE THEREIN FOR REASONS WHICH SOON WILL
APPEAR. 

MANY OTHER CLAIMS ARISING OUT OF INSURANCE WRITTEN IN LOUISIANA BY
THE LUMBERMEN'S RECIPROCAL ASSOCIATION WERE ASSERTED UNDER THE
QUALIFYING BOND.  IN THE AGGREGATE THESE CLAIMS WERE FAR IN EXCESS OF
THE AMOUNT OF THE BOND. 

JUNE 6, 1931, DESIRING TO AVAIL ITSELF OF THE PROVISIONS OF THE
INTERPLEADER ACT OF MAY 8, 1926, THE AMERICAN SURETY COMPANY, WITH THE
COURT'S LEAVE, PAID INTO THE REGISTRY OF THE FEDERAL DISTRICT COURT AT
NEW ORLEANS, LOUISIANA, THE SUM OF $20,000.00, BEING THE FULL AMOUNT OF
THE QUALIFYING BOND, AND THEREUPON FILED IN THAT COURT A DULY VERIFIED
BILL OF INTERPLEADER IN WHICH IT SET FORTH THE SEVERAL MATTERS HERE
RECITED, INCLUDING THE PROCEEDINGS, JUDGMENT AND APPEAL IN DUGAS' SUIT
ON THE QUALIFYING BOND; STATED THE NAMES AND PLACES OF RESIDENCE OF THE
SEVERAL CLAIMANTS UNDER THAT BOND, SO FAR AS THEY WERE KNOWN TO IT; AND
FURTHER ALLEGED - 

"THIS COURT HAS JURISDICTION BECAUSE THIS IS A BILL OF INTERPLEADER
IN EQUITY BROUGHT BY A SURETY COMPANY AGAINST BONA FIDE ADVERSE
CLAIMANTS AGAINST ITS BOND OF FEBRUARY 12, 1930, TWO OR MORE OF WHOM
ARE CITIZENS OF DIFFERENT STATES, AND ONE OR MORE OF SAID ADVERSE
CLAIMANTS RESIDES OR RESIDE WITHIN THE TERRITORIAL JURISDICTION OF THIS
COURT...." 

"PLAINTIFF DISCLAIMS ANY INTEREST IN THE AMOUNT OF ITS SAID BOND
EXCEPT TO PAY SAME TO THE PERSONS LAWFULLY ENTITLED THERETO...." 

"BY REASON OF THE CONFLICTING CLAIMS AGAINST THE SAID BOND, AND THE
FACT THAT CLAIMS ALREADY KNOWN TO PLAINTIFF GREATLY EXCEED THE AMOUNT
OF THE SAID BOND, PLAINTIFF IS IN GRAVE DANGER OF BEING GREATLY
HARASSED AND DAMAGED, AND CANNOT SAFELY MAKE PAYMENTS TO ANY CLAIMANT
WITHOUT THE AID OF THIS COURT." 

"PLAINTIFF, WITH THE PERMISSION OF THIS COURT FIRST OBTAINED, HAS
PAID INTO THE REGISTRY OF THIS COURT THE SAID SUM OF $20,000.00, THE
AMOUNT OF SAID BOND, TO ABIDE THE JUDGMENT OF THIS COURT." 

THE BILL PRAYED THAT DUGAS AND THE OTHER CLAIMANTS BE CITED TO
INTERPLEAD AND SETTLE AMONG THEMSELVES THEIR CLAIMS TO THE AMOUNT OF
THE BOND DEPOSITED IN THE COURT'S REGISTRY; THAT EACH OF THEM BE
TEMPORARILY AND PERMANENTLY ENJOINED FROM INSTITUTING OR PROSECUTING IN
ANY STATE COURT OR IN ANY OTHER FEDERAL COURT ANY SUIT ON ACCOUNT OF
ANY RIGHT OR CLAIM GROWING OUT OF THE QUALIFYING BOND; THAT THE
PLAINTIFF BE RELEASED FROM ALL FURTHER LIABILITY ON THE QUALIFYING
BOND; AND THAT ANY OTHER OR FURTHER RELIEF DEEMED PROPER IN THE
PREMISES BE GRANTED. 

ALL CLAIMANTS UNDER THE QUALIFYING BOND, INCLUDING DUGAS, WERE CALLED
INTO THE SUIT AS DEFENDANTS. 

JUNE 24, 1931, THE COURT AFTER A HEARING GRANTED AN INTERLOCUTORY
INJUNCTION CONFORMING TO THE PRAYER IN THE BILL. 

DUGAS RESISTED THE BILL BY AN EXCEPTION OF NO CAUSE OF ACTION, A PLEA
OF ESTOPPEL AND AN ANSWER.  IN THE PLEA AND ANSWER HE SPECIFICALLY
RELIED ON THE JUDGMENT OF APRIL 14, 1931, IN THE STATE COURT AND THE
APPEAL THEREFROM, TOGETHER WITH THE APPEAL BOND, AS SHOWING THAT HE
SHOULD NOT BE BROUGHT INTO THE INTERPLEADER SUIT. 

SEPTEMBER 19, 1932, AFTER A FULL HEARING, THE COURT RENDERED A DECREE
AS FOLLOWS: 

1.  DECLARING THE AMERICAN SURETY COMPANY HAD COMPLIED WITH ALL OF
ITS OBLIGATIONS UNDER THE QUALIFYING BOND BY DEPOSITING THE FULL AMOUNT
OF THE BOND IN THE COURT'S REGISTRY AT THE TIME OF BRINGING THE SUIT;
AND FURTHER DECLARING THAT COMPANY, BY REASON OF SUCH COMPLIANCE, TO BE
RELEASED AND DISCHARGED FROM ANY AND ALL FURTHER LIABILITY ON ACCOUNT
OF SUCH BOND; 

2.  ENJOINING EACH OF THE DEFENDANTS FROM INSTITUTING OR PROSECUTING
IN ANY STATE COURT, OR IN ANY OTHER FEDERAL COURT, ANY SUIT AGAINST THE
AMERICAN SURETY COMPANY ON ACCOUNT OF ANY RIGHT OR CLAIM GROWING OUT OF
SUCH BOND; AND 

3.  APPOINTING A SPECIAL MASTER AND CHARGING HIM WITH THE DUTY OF
HEARING THE CLAIMANTS AND REPORTING UPON THE MANNER IN WHICH THE FUND
DEPOSITED IN THE REGISTRY, LESS SPECIFIED FEES AND COSTS, SHOULD BE
DISTRIBUTED AMONG THE CLAIMANTS. 

NO APPEAL WAS TAKEN THEN OR THEREAFTER FROM THAT DECREE; AND IT
REMAINED IN FULL FORCE AND EFFECT. 

IN DUE COURSE HEARINGS WERE HAD AND EVIDENCE WAS PRODUCED BEFORE THE
SPECIAL MASTER, AFTER WHICH HE SUBMITTED A REPORT CONTAINING HIS
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATIONS FOR A
DISTRIBUTION OF THE FUND, LESS FEES AND COSTS, AMONG THE SEVERAL
CLAIMANTS UPON A PRO RATA BASIS.  THE REPORT ALSO CONTAINED A STATEMENT
SHOWING WHAT HE FOUND TO BE THE TRUE AND FULL AMOUNT OF EACH CLAIM, THE
TOTAL BEING IN EXCESS OF $60,000.00, AND A FURTHER STATEMENT SHOWING
THE AMOUNT WHICH, ON A PRO RATA DISTRIBUTION WOULD BE PAYABLE ON EACH
CLAIM.  AS TO DUGAS' CLAIM THE MASTER REPORTED THE TRUE AND FULL AMOUNT
AS $4,160.68  FN4  AND THE PRO RATA SHARE OF THE FUND PAYABLE ON THE
CLAIM AS $1,141.29. 

SHORTLY AFTER THE SPECIAL MASTER'S REPORT WAS SUBMITTED THE SEVERAL
CLAIMANTS, INCLUDING DUGAS, ENTERED INTO AND FILED IN THE SUIT A
WRITTEN STIPULATION DECLARING THAT THEY ACQUIESCED IN THE REPORT,
WAIVED THE TIME ALLOWED FOR FILING EXCEPTIONS, AND REQUESTED THE COURT
TO CONFIRM THE REPORT AND MAKE IT THE COURT'S DECREE. 

APRIL 20, 1933, THE COURT, WITH THE SPECIAL MASTER'S REPORT AND THE
STIPULATION BEFORE IT, RENDERED A DECREE CONFIRMING THE REPORT AND
DIRECTING THAT THE BALANCE OF THE FUND IN THE REGISTRY BE DISTRIBUTED
AMONG THE SEVERAL CLAIMANTS IN ACCORDANCE WITH THE MASTER'S
RECOMMENDATIONS.  NO APPEAL WAS TAKEN FROM THIS DECREE. 

THE FUND WAS DISTRIBUTED AND PAID OUT ACCORDINGLY AND WAS THEREBY
EXHAUSTED.  DUGAS ACCEPTED THE PRO RATA SHARE ACCORDED TO HIM IN THE
MASTER'S REPORT AND THE CONFIRMING DECREE. 

MARCH 7, 1934, DUGAS BROUGHT A SUIT IN THE LOUISIANA COURT BEFORE
MENTIONED AGAINST THE NEW YORK CASUALTY COMPANY, THE SURETY ON THE
APPEAL BOND GIVEN IN HIS EARLIER SUIT ON THE QUALIFYING BOND.  IN THIS
NEW SUIT HE ASSERTED THAT THE AMERICAN SURETY COMPANY, DEFENDANT IN THE
EARLIER SUIT AND PRINCIPAL IN THE APPEAL BOND, HAD NOT DILIGENTLY
PROSECUTED ITS APPEAL, BUT, ON THE CONTRARY, HAD BROUGHT THE
INTERPLEADER SUIT IN THE FEDERAL COURT AND HAD OBTAINED THEREIN AN
INJUNCTION WHICH IN EFFECT PROHIBITED HIM FROM SECURING A DETERMINATION
OF THE APPEAL; AND THAT IT HAD THEREBY ABANDONED THE APPEAL AND
VIOLATED THE CONDITION OF THE APPEAL BOND. 

WHILE THE NEW SUIT WAS BASED ON AN ASSERTED BREACH OF THE APPEAL BOND
BY THE PRINCIPAL, IT WAS BROUGHT AGAINST THE SURETY ALONE.  THE RELIEF
PRAYED WAS A JUDGMENT IN DUGAS' FAVOR FOR $3,019.39, BEING THE
DIFFERENCE BETWEEN THE AMOUNT OF HIS WORKMEN'S COMPENSATION CLAIM AS
ASCERTAINED IN THE INTERPLEADER SUIT AND THE SUM ALLOWED AND PAID TO
HIM IN THAT SUIT AS HIS PRO RATA SHARE OF THE FUND ARISING FROM THE
DEPOSIT IN COURT OF THE FULL AMOUNT OF THE QUALIFYING BOND.  BY AN
AMENDED PETITION THE AMOUNT FOR WHICH JUDGMENT WAS PRAYED WAS REDUCED
TO $2,999.00 TO FORESTALL A REMOVAL TO THE FEDERAL COURT. 

TO THE NEW SUIT THE NEW YORK CASUALTY COMPANY INTERPOSED THE
EXCEPTION OF PREMATURITY, AMONG OTHERS.  THE COURT SUSTAINED THAT
EXCEPTION, WITHOUT RULING ON THE OTHERS, AND DISMISSED THE SUIT.  DUGAS
APPEALED TO THE SUPREME COURT OF THE STATE, WHICH, ON JANUARY 7, 1935,
REVERSED THE JUDGMENT OF DISMISSAL AND REMANDED THE SUIT FOR FURTHER
PROCEEDINGS.  FN5 

JANUARY 29, 1935, THE AMERICAN SURETY COMPANY, WITH THE LEAVE OF THE
FEDERAL COURT, FILED IN THE INTERPLEADER SUIT A SUPPLEMENTAL BILL IN
WHICH IT SET FORTH THE MATTERS AND PROCEEDINGS OCCURRING AFTER THE
DECREE OF SEPTEMBER 19, 1932, IN THAT SUIT; ALLEGED THAT THE JUDGMENT
OF APRIL 14, 1931, AGAINST THE AMERICAN SURETY COMPANY AND IN FAVOR OF
DUGAS IN HIS EARLIER SUIT IN THE STATE COURT WAS BASED ENTIRELY ON THE
QUALIFYING BOND OF FEBRUARY 12, 1930, GIVEN BY THE LUMBERMEN'S
RECIPROCAL ASSOCIATION AS PRINCIPAL AND THE AMERICAN SURETY COMPANY AS
SURETY; THAT BY THE DECREE OF SEPTEMBER 19, 1932, IN THE INTERPLEADER
SUIT, TO WHICH DUGAS WAS A PARTY, THE AMERICAN SURETY COMPANY WAS
DECLARED TO HAVE COMPLIED WITH ALL OF ITS OBLIGATIONS UNDER THE
QUALIFYING BOND AND WAS RELEASED AND DISCHARGED FROM ANY AND ALL
FURTHER LIABILITY ON ACCOUNT THEREOF; THAT BY THAT DECREE DUGAS WAS
ENJOINED FROM INSTITUTING OR PROSECUTING IN ANY OTHER COURT ANY SUIT
AGAINST THE AMERICAN SURETY COMPANY ON ACCOUNT OF ANY RIGHT OR CLAIM
GROWING OUT OF SUCH BOND; THAT DUGAS' SUIT IN THE STATE COURT AGAINST
THE NEW YORK CASUALTY COMPANY WAS BROUGHT ON THE APPEAL BOND GIVEN BY
THE AMERICAN SURETY COMPANY AS PRINCIPAL AND THE NEW YORK CASUALTY
COMPANY AS SURETY ON THE APPEAL TAKEN BY THE AMERICAN SURETY COMPANY
FROM THE JUDGMENT OF APRIL 14, 1931, ON THE QUALIFYING BOND; THAT IF
DUGAS SHOULD COLLECT ANY SUM FROM THE NEW YORK CASUALTY COMPANY IN HIS
SUIT AGAINST IT AS SURETY ON THE APPEAL BOND, THE AMERICAN SURETY
COMPANY, AS PRINCIPAL ON THAT BOND, WOULD BE BOUND TO REIMBURSE SUCH
SURETY; AND THAT IN THESE CIRCUMSTANCES DUGAS' SUIT AGAINST THE NEW
YORK CASUALTY COMPANY WAS ESSENTIALLY AN EFFORT TO ENFORCE THE JUDGMENT
OF APRIL 14, 1931, WHICH WAS BASED SOLELY ON THE QUALIFYING BOND, AND
THEREFORE WAS AN ATTEMPT INDIRECTLY TO SUBJECT THE AMERICAN SURETY
COMPANY TO FURTHER LIABILITY ON ACCOUNT OF THAT BOND CONTRARY TO THE
DECREE OF SEPTEMBER 19, 1932.  ACCORDINGLY, AND IN AID OF THE DECREES
IN THE INTERPLEADER SUIT, THE SUPPLEMENTAL BILL CONTAINED PRAYERS FOR
AN INJUNCTION RESTRAINING DUGAS FROM FURTHER PROSECUTING HIS SUIT
AGAINST THE NEW YORK CASUALTY COMPANY AND FOR GENERAL RELIEF. 

TO THE SUPPLEMENTAL BILL DUGAS FILED PLEAS CHALLENGING THE
JURISDICTION OF THE COURT, ITS POWER TO ENJOIN PROCEEDINGS IN THE STATE
COURT, AND THE SUFFICIENCY OF THE CASE STATED.  THE PLEAS WERE
OVERRULED AND DUGAS ANSWERED.  UPON THE FINAL HEARING THE COURT FOUND
THE FACTS TO BE AS ALLEGED IN THE SUPPLEMENTAL BILL AND HELD THAT
DUGAS' SUIT AGAINST THE NEW YORK CASUALTY COMPANY AS SURETY ON THE
APPEAL BOND WAS ESSENTIALLY AN EFFORT TO ENFORCE AGAINST THE AMERICAN
SURETY COMPANY THE JUDGMENT WHICH HE HAD OBTAINED AGAINST IT AS SURETY
ON THE QUALIFYING BOND, AND THEREFORE WAS IN CONTRAVENTION OF THE
SPIRIT, IF NOT THE LETTER, OF THE DECREES IN THE INTERPLEADER SUIT; AND
ON THAT BASIS THE COURT GAVE A SUPPLEMENTAL DECREE SPECIFICALLY
ENJOINING DUGAS FROM FURTHER PROSECUTING HIS SUIT IN THE STATE COURT
AGAINST THE NEW YORK CASUALTY COMPANY.  DUGAS APPEALED AND THE CIRCUIT
COURT OF APPEALS AFFIRMED THE DECREE, ONE JUDGE DISSENTING.  82 F.(2D)
953.  THE CASE IS HERE ON CERTIORARI. 

MR. JUSTICE VAN DEVANTER, AFTER MAKING THE FOREGOING STATEMENT,
DELIVERED THE OPINION OF THE COURT. 

1.  THE AMOUNT OR PENALTY OF THE QUALIFYING BOND WAS $20,000.00.  THE
SURETY'S OBLIGATION WAS NOT TO DUGAS ALONE, BUT TO THE OTHER CLAIMANTS
AS WELL; AND THIS OBLIGATION WAS NOT TO PAY ALL CLAIMS REGARDLESS OF
THEIR AGGREGATE, BUT TO PAY $20,000.00, OR SO MUCH THEREOF AS SHOULD BE
NEEDED, AND NO MORE.  BECAUSE THE CLAIMS EXCEEDED $20,000.00, THE
SURETY PAID THAT SUM INTO THE REGISTRY OF THE FEDERAL COURT, THERE TO
ABIDE THE COURT'S DECREE, AND AT THE SAME TIME BROUGHT IN THAT COURT
ITS INTERPLEADER SUIT AGAINST ALL CLAIMANTS, INCLUDING DUGAS, TO THE
END THAT ITS LIABILITY ON THE BOND MIGHT BE TERMINATED, AND THAT THE
RIGHTS OF THE SEVERAL CLAIMANTS IN THE AMOUNT OF THE BOND SO PAID INTO
COURT MIGHT BE JUDICIALLY DETERMINED AND THE FUND DISTRIBUTED
ACCORDINGLY.   2.  THE INTERPLEADER ACT OF 1926, UNDER WHICH THAT SUIT
WAS BROUGHT, MAKES PROVISION FOR THE FILING IN A FEDERAL DISTRICT COURT
OF A BILL OF INTERPLEADER BY A SURETY COMPANY WHICH HAS EXECUTED A BOND
IN THE SUM OF $500.00 OR MORE, UNDER WHICH TWO OR MORE CLAIMANTS,
CITIZENS OF DIFFERENT STATES, ASSERT ADVERSE RIGHTS TO THE PENALTY;
AUTHORIZES THE PAYMENT OF THE AMOUNT OF THE BOND INTO THE REGISTRY OF
THE COURT, THERE TO AWAIT SUCH DISPOSAL AS THE COURT MAY DIRECT; AND
FURTHER PROVIDES IN THE LATTER PART OF SEC. 2 AND IN SEC. 3: 

"SEC. 2....  NOTWITHSTANDING ANY PROVISION OF THE JUDICIAL CODE TO
THE CONTRARY, SAID COURT SHALL HAVE POWER TO ISSUE ITS PROCESS FOR ALL
SUCH CLAIMANTS AND TO ISSUE AN ORDER OF INJUNCTION AGAINST EACH OF
THEM, ENJOINING THEM FROM INSTITUTING OR PROSECUTING ANY SUIT OR
PROCEEDING IN ANY STATE COURT OR IN ANY OTHER FEDERAL COURT  ...  ON
SUCH BOND  ...  UNTIL THE FURTHER ORDER OF THE COURT; WHICH PROCESS AND
ORDER OF INJUNCTION SHALL BE RETURNABLE AT SUCH TIME AS THE SAID COURT
OR A JUDGE THEREOF SHALL DETERMINE AND SHALL BE ADDRESSED TO AND SERVED
BY THE UNITED STATES MARSHALS FOR THE RESPECTIVE DISTRICTS WHEREIN SAID
CLAIMANTS RESIDE OR MAY BE FOUND." 

"SEC. 3.  SAID COURT SHALL HEAR AND DETERMINE THE CAUSE AND SHALL
DISCHARGE THE COMPLAINANT FROM FURTHER LIABILITY; AND SHALL MAKE THE
INJUNCTION PERMANENT AND ENTER ALL SUCH OTHER ORDERS AND DECREES AS MAY
BE SUITABLE AND PROPER, AND ISSUE ALL SUCH CUSTOMARY WRITS AS MAY BE
NECESSARY OR CONVENIENT TO CARRY OUT AND ENFORCE THE SAME." 

BY PLEA AND ANSWER DUGAS OBJECTED TO BEING BROUGHT INTO THE
INTERPLEADER SUIT AND GROUNDED THE OBJECTION UPON THE JUDGMENT, APPEAL
AND APPEAL BOND IN HIS EARLIER SUIT IN THE STATE COURT; BUT THE
OBJECTION WAS OVERRULED, AND THE CAUSE PROCEEDED TO THE RENDITION OF
TWO RELATED DECREES. 

IN ONE DECREE, GIVEN SEPTEMBER 19, 1932, THE COMPLAINANT SURETY, BY
REASON OF ITS PAYMENT OF THE AMOUNT OF THE QUALIFYING BOND INTO THE
COURT'S REGISTRY, WAS DISCHARGED FROM ANY AND ALL FURTHER LIABILITY ON
ACCOUNT OF THAT BOND, AND THE SEVERAL CLAIMANTS, INCLUDING DUGAS, WERE
ENJOINED FROM INSTITUTING OR PROSECUTING AGAINST THE COMPLAINANT
SURETY, SO DISCHARGED, ANY SUIT ON ACCOUNT OF ANY CLAIM OR RIGHT
GROWING OUT OF SUCH BOND.  IN THE OTHER DECREE, GIVEN APRIL 20, 1933,
THE COURT DETERMINED THE RIGHTS OF THE SEVERAL CLAIMANTS, INCLUDING
DUGAS, IN THE FUND PAID INTO THE REGISTRY, AND DIRECTED ITS
DISTRIBUTION AMONG THEM ON A PRO RATA BASIS - THIS DECREE BEING IN
EXACT ACCORD WITH A STIPULATED REQUEST BY ALL CLAIMANTS INCLUDING
DUGAS. 

TAKEN TOGETHER, THE TWO DECREES NOT ONLY COMPLETELY TERMINATED THE
LIABILITY OF THE COMPLAINANT SURETY ON THE QUALIFYING BOND, BUT ALSO
FIXED THE FULL MEASURE OF DUGAS' RIGHT OR CLAIM UNDER THE BOND, AND IN
NECESSARY EFFECT DETERMINED THAT THE JUDGMENT, APPEAL AND APPEAL BOND
IN HIS EARLIER SUIT IN THE STATE COURT DID NOT PUT HIS CLAIM BEYOND THE
REACH OF THE INTERPLEADER SUIT, OR REQUIRE THAT IT BE DEALT WITH
DIFFERENTLY FROM OTHER CLAIMS. 

PLAINLY THE COURT HAD JURISDICTION OF BOTH THE SUBJECT MATTER AND THE
PARTIES.  NO APPEAL WAS TAKEN FROM EITHER DECREE.  THEREFORE DUGAS WAS
BOUND BY BOTH DECREES.  HAD HE EXERCISED HIS RIGHT TO APPEAL HE COULD
HAVE OBTAINED A REVIEW OF THE RULINGS ON HIS OBJECTION TO BEING BROUGHT
INTO THE SUIT, ON THE BEARING AND EFFECT OF THE PRIOR JUDGMENT AND
PROCEEDINGS IN THE STATE COURT, AND ON THE RIGHT OF THE COMPLAINANT
SURETY TO BE DISCHARGED FROM FURTHER LIABILITY IN RESPECT OF HIS
CLAIM.  BUT THESE RULINGS WERE ALL MADE IN THE EXERCISE OF THE COURT'S
JURISDICTION, WERE SUBJECT TO CHALLENGE AND REEXAMINATION ONLY ON
APPEAL, AND BECAME CONCLUSIVE ON HIM IN THE ABSENCE OF AN APPEAL. 

3.  IN THE INTERPLEADER SUIT THERE WAS AN ACTUAL, COMPLETE AND
JUDICIALLY SANCTIONED PAYMENT OF THE QUALIFYING BOND BY THE SURETY, AND
IT WAS ON THIS BASIS THAT THE SURETY WAS DISCHARGED FROM ALL FURTHER
LIABILITY.  WHILE THE PAYMENT WAS INTO THE COURT'S REGISTRY, AND NOT
DIRECTLY TO THE CLAIMANTS, IT NEVERTHELESS WAS A LAWFUL AND EFFECTIVE
PAYMENT UNDER THE INTERPLEADER ACT.  IN EFFECT THE FIRST DECREE
CONVERTED THE CLAIMS UNDER THE BOND INTO CLAIMS AGAINST THE FUND PAID
INTO THE REGISTRY; AND THE SECOND DECREE, MADE AFTER A HEARING IN WHICH
ALL CLAIMANTS WERE HEARD, DIRECTED AND BROUGHT ABOUT A DISTRIBUTION OF
THE FUND AMONG THEM ACCORDING TO THEIR ASCERTAINED RIGHTS. 

AS DUGAS' JUDGMENT IN THE STATE COURT WAS BASED SOLELY ON THE
QUALIFYING BOND, THE PAYMENT OF THE BOND AND DISCHARGE OF THE SURETY,
AS EFFECTED IN THE INTERPLEADER SUIT, OPERATED, UNDER RECOGNIZED
PRINCIPLES OF LAW AND EQUITY, TO EXTINGUISH HIS RIGHT UNDER THE
JUDGMENT.  HE RELIED ON THE JUDGMENT IN HIS SEVERAL PLEADINGS AND THE
DECREES FIXED THE MEASURE OF HIS CLAIM CONFORMABLY TO THE JUDGMENT. 
EVEN THE COSTS AWARDED TO HIM BY THE JUDGMENT WERE INCLUDED IN THE
COMPUTATION.  THUS IT IS PLAIN THAT THE INTERPLEADER SUIT AND THE
DECREES THEREIN DEALT WITH HIS CLAIM AS IT WAS EMBODIED IN AND
EVIDENCED BY THE JUDGMENT. 

4.  WHETHER, IN SUBSEQUENTLY BRINGING SUIT IN THE STATE COURT ON THE
APPEAL BOND, DUGAS CONTRAVENED THE FAIR INTENDMENT OF THE DECREES IN
THE INTERPLEADER SUIT IS THE PRINCIPAL QUESTION ARISING ON THE
SUPPLEMENTAL BILL.  BOTH COURTS BELOW ANSWERED THE QUESTION IN THE
AFFIRMATIVE. 

THE APPEAL BOND WAS IN THE NATURE OF A SECURITY FOR THE SATISFACTION
OF THE JUDGMENT IN DUGAS' SUIT ON THE QUALIFYING BOND; AND IN
ATTEMPTING TO ENFORCE THIS SECURITY HE OBVIOUSLY WAS SEEKING TO REALIZE
ON THE JUDGMENT.  IF HIS RIGHT UNDER THE JUDGMENT WAS EXTINGUISHED HE
WAS NOT ENTITLED TO RESORT TO THE SECURITY; FOR THE RELATION OF ONE TO
THE OTHER WAS SUCH THAT THE EXTINGUISHMENT OF HIS RIGHT UNDER THE
JUDGMENT TERMINATED HIS RIGHT IN THE SECURITY.  FN6 

IT ALREADY HAS BEEN SHOWN IN THIS OPINION THAT HIS RIGHT UNDER THE
JUDGMENT WAS EXTINGUISHED BY THE PROCEEDINGS AND DECREES IN THE
INTERPLEADER SUIT. 

WITH THIS UNDERSTANDING OF THE OPERATION AND EFFECT OF THE DECREES IN
THAT SUIT, IT BECOMES PLAIN THAT DUGAS' ACTION IN BRINGING SUIT ON THE
APPEAL BOND AND THEREBY ATTEMPTING TO REALIZE ON THE PRIOR JUDGMENT,
NOTWITHSTANDING THE EXTINGUISHMENT OF HIS RIGHTS UNDER IT, WAS IN
CONTRAVENTION OF THOSE DECREES. 

HIS COUNSEL CONTENDS OTHERWISE, AND SEEKS TO SUPPORT THE CONTENTION
BY POINTING OUT THAT THE INJUNCTION DID NOT DIRECTLY FORBID DUGAS FROM
SUING ON THE APPEAL BOND, BUT ONLY FROM INSTITUTING OR PROSECUTING ANY
SUIT AGAINST THE COMPLAINANT SURETY ON ACCOUNT OF A RIGHT OR CLAIM
GROWING OUT OF THE QUALIFYING BOND.  BUT THE INJUNCTION, BEING ONLY ONE
PART OF THE DECREES, IS NOT THE EXCLUSIVE CRITERION OF WHAT WAS
DETERMINED AND EFFECTED BY THEM.  ITS PURPOSE WAS TO FORESTALL
ANTICIPATED DEPARTURES, NOT TO LIMIT OTHER PROVISIONS OR RESTRICT THEIR
OPERATION AND EFFECT. 

BY THE OTHER PROVISIONS IT WAS ADJUDGED THAT THE COMPLAINANT SURETY
HAD COMPLIED WITH ALL OF ITS OBLIGATIONS UNDER THE BOND BY PAYING THE
AMOUNT OF THE BOND INTO THE COURT'S REGISTRY; THAT, BY REASON OF THIS
COMPLIANCE, IT WAS DISCHARGED FROM ANY AND ALL FURTHER LIABILITY ON
ACCOUNT OF THE BOND; AND THAT THE SEVERAL CLAIMANTS UNDER THE BOND, ALL
OF WHOM HAD BEEN BROUGHT IN AND HEARD, WERE ENTITLED TO DESIGNATED
PORTIONS OF THE FUND SO PAID INTO THE REGISTRY.  UNDER THIS LAST
PROVISION EACH CLAIMANT WAS PAID HIS PORTION, THE FUND BEING THEREBY
EXHAUSTED.  IT ALSO WAS ADJUDGED THAT THE FACT THAT DUGAS' CLAIM WAS
EMBODIED IN AND EVIDENCED BY A JUDGMENT DID NOT MAKE IT OTHER THAN A
CLAIM UNDER THE BOND OR TAKE IT WITHOUT THE REACH OF THE INTERPLEADER
SUIT.  HE ACQUIESCED IN THAT AND OTHER RULINGS; AND THE AMOUNT OF HIS
CLAIM AND HIS PROPORTIONATE SHARE OF THE FUND WERE FIXED CONFORMABLY TO
THE JUDGMENT.  HE ACQUIESCED ALSO IN THIS, AND ACCEPTED THE SHARE SO
ALLOTTED TO HIM.  IN THIS WAY THE OTHER PROVISIONS IN THE DECREES
ACCOMPLISHED AS THEY WERE INTENDED TO DO, THE EXTINGUISHMENT OF HIS
RIGHT UNDER THE JUDGMENT; AND THEY DID THIS INDEPENDENTLY OF THE
INJUNCTION. 

OF THE DECISIONS UNDER STATE INTERPLEADER STATUTES WHICH ARE CITED AS
IF MAKING FOR A DIFFERENT CONCLUSION, IT IS ENOUGH TO SAY, FIRST, THAT
IN NONE WAS THE STATUTE SUBSTANTIALLY IDENTICAL WITH THE FEDERAL ACT OF
1926; AND, SECONDLY, THAT IN SUCH AS INVOLVED QUESTIONS APPROXIMATELY
LIKE THOSE PRESENTED TO THE DISTRICT COURT IN THE ORIGINAL SUIT THERE
WERE LOCALLY APPROPRIATE APPLICATIONS FOR THE EXERCISE OF APPELLATE
AUTHORITY BEFORE THE RULINGS BECAME CONCLUSIVE, WHICH WAS NOT THE CASE
HERE. 

SOME RELIANCE IS PLACED ON THE FACT THAT THE SUIT ON THE APPEAL BOND
WAS AGAINST THE SURETY THEREON ALONE.  BUT THIS DOES NOT MAKE FOR A
DIFFERENT RESULT.  AS DUGAS' RIGHT UNDER THE JUDGMENT WAS EXTINGUISHED
HE WAS NO MORE ENTITLED TO REALIZE ON THE JUDGMENT BY SUING THE SURETY
ON THE APPEAL BOND THAN BY SUING THE PRINCIPAL.  BESIDES, THE SURETY,
IF CAST IN THE SUIT AND COMPELLED TO PAY, WOULD BE ENTITLED TO
REIMBURSEMENT BY THE PRINCIPAL.  THE LATTER, THEREFORE, MAY BE HEARD TO
COMPLAIN IN THE CIRCUMSTANCES SHOWN HERE. 

5.  THE JURISDICTION TO ENTERTAIN THE SUPPLEMENTAL BILL IS FREE FROM
DOUBT.  SUCH A BILL MAY BE BROUGHT IN A FEDERAL COURT IN AID OF AND TO
EFFECTUATE ITS PRIOR DECREE TO THE END EITHER THAT THE DECREE MAY BE
CARRIED FULLY INTO EXECUTION OR THAT IT MAY BE GIVEN FULLER EFFECT, BUT
SUBJECT TO THE QUALIFICATION THAT THE RELIEF BE NOT OF A DIFFERENT KIND
OR ON A DIFFERENT PRINCIPLE.  FN7 SUCH A BILL IS ANCILLARY AND
DEPENDENT, AND THEREFORE THE JURISDICTION FOLLOWS THAT OF THE ORIGINAL
SUIT, REGARDLESS OF THE CITIZENSHIP OF THE PARTIES TO THE BILL OR THE
AMOUNT IN CONTROVERSY.  FN8 

6.  THE POWER OF THE COURT TO ENJOIN DUGAS FROM FURTHER PROSECUTING
HIS SUIT IN THE STATE COURT ON THE APPEAL BOND HAS FULL SUPPORT IN
SECS. 2 AND 3 OF THE INTERPLEADER ACT OF 1926 BEFORE QUOTED, AS ALSO IN
SETTLED ADJUDICATIONS RESPECTING THE POWER OF A FEDERAL COURT TO
PROTECT ITS JURISDICTION AND DECREES.  FN9  DECREE AFFIRMED. 

FN1  CH. 273, 44 STAT., PT. 2, 416.  REPEALED AND NEW ACT SUBSTITUTED
JANUARY 20, 1936, C. 13, 49 STAT. 1096, BUT WITH SAVING CLAUSE
RESPECTING ANY ACT DONE OR ANY RIGHT, ACCRUING OR ACCRUED, IN ANY SUIT
OR PROCEEDING HAD OR COMMENCED UNDER THE EARLIER ACT PRIOR TO ITS
REPEAL. 

FN2  ACT 172, LA. LAWS, 1908, P. 232. 

FN3  LA. CODE PRAC., ARTS. 575, 579. 

FN4  THE MASTER FOUND DUGAS' DISABILITY WAS MATERIALLY RELIEVED AT
THE TIME THE HEARING BEGAN (OCTOBER 26, 1932) AND RECOMMENDED THAT HIS
CLAIM BE ALLOWED AT $20.00 PER WEEK FOR THE 127 WEEKS PRECEDING THE
HEARING, AT $8.00 PER WEEK FOR 173 WEEKS, DISCOUNTED AT 8%, AND AT
$250.00 FOR MEDICAL BILLS AND $97.40 FOR COSTS AND EXPERT TESTIMONY,
MAKING A TOTAL OF $4,160.68. 

FN5 DUGAS V. NEW YORK CASUALTY CO., 181 LA. 322; 159 SO. 572. 

FN6  CAGE'S EXECUTORS V. CASSIDY, 23 HOW.  109, 116; CARPENTER V.
LONGAN, 16 WALL.  271, 275; DODGE V. FREEDMAN'S S. & T. CO., 93 U.S.
379, 382; UNITED STATES V. CHOUTEAU, 102 U.S. 603, 610-611.  AND SEE
ILLINOIS SURETY CO. V. PEELER, 240 U.S. 214, 225. 

FN7  STORY'S EQUITY PLEADING, 9TH ED., SEC. 338; ROOT V. WOOLWORTH,
150 U.S. 401, 410-412; LOCAL LOAN CO. V. HUNT, 292 U.S. 234, 239. 

FN8  ROOT V. WOOLWORTH, SUPRA, P. 413; LOCAL LOAN CO. V. HUNT,
SUPRA. 

FN9  FRENCH V. HAY, 22 WALL.  250; ROOT V. WOOLWORTH, SUPRA, P. 411;
JULIAN V. CENTRAL TRUST CO., 193 U.S. 93, 112; MADISONVILLE TRACTION
CO. V. SAINT BERNARD MINING CO., 196 U.S. 239, 245; LOONEY V. EASTERN
TEXAS R. CO., 247 U.S. 214, 221; WELLS FARGO & CO. V. TAYLOR, 254 U.S.
175, 183. 

THE CHIEF JUSTICE AND MR. JUSTICE CARDOZO ARE OF OPINION THAT THE
DECREE SHOULD BE REVERSED FOR THE REASONS STATED BY SIBLEY, J., IN THE
COURT BELOW. 

MR. JUSTICE STONE DID NOT PARTICIPATE IN THE CONSIDERATION OR
DECISION OF THIS CASE. 
..END :



















MATOS V. ALONSO HERMANOS, 300 U.S. 429 


NO. 227.  ARGUED MARCH 2, 1937.  - DECIDED MARCH 29, 1937.  - 81 F.(2D)
930, REVERSED. 


UPON REVIEW OF A JUDGMENT OF THE SUPREME COURT OF PUERTO RICO, IN A
CASE CONTROLLED BY THE CONSTRUCTION AND APPLICATION OF LOCAL LAWS OF
REDHIBITION AND PRESCRIPTION, THE CIRCUIT COURT OF APPEALS SHOULD
FOLLOW THE DECISION UNLESS THERE BE A SENSE OF CLEAR ERROR COMMITTED. 
P. 432. 

MATOS V. ALONSO HERMANOS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 299 U.S. 527, TO REVIEW A JUDGMENT REVERSING A JUDGMENT
OF THE SUPREME COURT OF PUERTO RICO, WHICH HAD REVERSED A JUDGMENT OF
THE TRIAL COURT AND DIRECTED DISMISSAL OF THE COMPLAINT, IN AN ACTION
BY A PURCHASER OF CATTLE TO HAVE THE SALE ANNULLED AND TO RECOVER THE
PURCHASE MONEY. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

TWO SECTIONS OF THE REVISED CIVIL CODE OF PUERTO RICO FOLLOW: 

"1397.  ANIMALS AND CATTLE SUFFERING FROM CONTAGIOUS DISEASES SHALL
NOT BE THE OBJECT OF A CONTRACT OF SALE.  ANY CONTRACT MADE WITH REGARD
TO THE SAME SHALL BE VOID.  A CONTRACT OF SALE OF CATTLE AND ANIMALS
SHALL ALSO BE VOID, WHEN THE USE OR SERVICE FOR WHICH THEY ARE ACQUIRED
BEING STATED, THEY ARE FOUND TO BE USELESS THEREFOR." 

"1399. THE REDHIBITORY ACTION, BASED ON THE VICES OR DEFECTS OF
ANIMALS, MUST BE INSTITUTED WITHIN FORTY DAYS, COUNTED FROM THEIR
DELIVERY TO THE VENDEE, UNLESS, BY REASON OF THE CUSTOMS IN EACH
LOCALITY, LONGER OR SHORTER PERIODS ARE ESTABLISHED.  THIS ACTION IN
THE SALE OF ANIMALS MAY ONLY BE ENFORCED WITH REGARD TO THE VICES AND
DEFECTS OF THE SAME, DETERMINED BY LAW OR BY LOCAL CUSTOMS." 

SEVERAL SECTIONS OF THE ISLAND'S PENAL CODE INTERDICT SALE OR
POSSESSION OF ANIMALS SUFFERING FROM A CONTAGIOUS DISEASE. 

A COMPLAINT FILED BY RESPONDENTS, ALONSO HERMANOS, ET AL., IN THE
DISTRICT COURT OF SAN JUAN, DECEMBER 12, 1929, ALLEGED THAT THEY
PURCHASED MARCH 1, 1929, FROM PETITIONER, JOSE MATOS, A HERD OF CATTLE
122 HEAD - FOR THE LUMP SUM OF $18,000.00; ALTHOUGH APPARENTLY IN GOOD
CONDITION THE CATTLE WERE SUFFERING FROM TUBERCULOSIS, A CONTAGIOUS
DISEASE; PRIOR TO DECEMBER 6TH FORTY-THREE HAD DIED, TWENTY-NINE WERE
CONDEMNED AND DESTROYED BY THE HEALTH DEPARTMENT.  THEY FURTHER
DECLARED READINESS TO RETURN ALL SURVIVING CATTLE AND PRAYED THAT THE
SALE BE DECLARED NULL AND VOID, IN ACCORDANCE WITH SEC. 1397 OF THE
CIVIL CODE, ALSO FOR JUDGMENT FOR THE PURCHASE PRICE. 

A DEMURRER INVOKING THE LIMITATION OF FORTY DAYS UPON REDHIBITORY
ACTIONS, PRESCRIBED BY CODE SEC. 1399, WAS OVERRULED.  AN ANSWER
FOLLOWED.  THIS ADMITTED EXECUTION OF THE CONTRACT, RECEIPT OF THE
CONSIDERATION, DEATH AND CONDEMNATION OF THE CATTLE AS ALLEGED.  BUT IT
AFFIRMED THAT TUBERCULOSIS WAS CONTRACTED AFTER THE SALE THROUGH
IMPROPER CARE; ALSO RENEWED THE CLAIM OF PRESCRIPTION. 

THE TRIAL COURT FOUND THE FACTS SHOWN BY THE EVIDENCE; CONCLUDED THE
QUESTIONED CONTRACT WAS ILLEGAL AND VOID, THAT THE ACTION WAS NOT
SUBJECT TO THE PRESCRIPTION OF FORTY DAYS; AND ORDERED RETURN OF THE
ENTIRE PURCHASE PRICE. 

UPON APPEAL THE SUPREME COURT OF PUERTO RICO RULED THE SALE CONTRACT
WAS NOT VOID BUT VOIDABLE AT THE PURCHASER'S ELECTION; ITS LEGAL EFFECT
AND THE REMEDY FOR VIOLATION WERE WITHIN THE CODE PROVISIONS RELATING
TO REDHIBITORY CONTRACTS; THE LIMITATION OF FORTY DAYS APPLIED; "THAT
THE FIELD OF WARRANTIES."  ALSO, THE CONTRACT FOR THE PURCHASE OF THE
HERD WAS "INDIVIDUAL" OR "DISTRIBUTIVE" - NOT UNITARY; AS TO THE DEAD
COWS THE RIGHT TO RECOVER THE PURCHASE PRICE WAS PRESCRIBED; AS TO
THOSE WHICH SURVIVED NO RIGHT OF RECOVERY EVER EXISTED.  IT ACCORDINGLY
REVERSED THE JUDGMENT OF THE DISTRICT COURT AND DIRECTED DISMISSAL OF
THE COMPLAINT. 

THE CIRCUIT COURT OF APPEALS HELD THE CONTRACT OF SALE ILLEGAL - NON
EXISTENT - AS TO COWS WHICH HAD DIED OR WERE CONDEMNED; AS TO THEM THE
ACTION WAS NOT REDHIBITORY; THE PRESCRIPTION OF FORTY DAYS HAD NO
APPLICATION; AND IT REVERSED THE QUESTIONED JUDGMENT.  WITH RESPECT TO
THE SURVIVING COWS IT ADOPTED THE INTERPRETATION OF SEC. 1397 APPROVED
BY THE SUPREME COURT.  IT SAID:  "TO SUMMARIZE:  IN THE TRIAL COURT THE
PLAINTIFFS PUT THEIR CLAIM ON THE HERD BASIS; THEY ENDEAVORED TO
RESCIND THE ENTIRE TRANSACTION AND GET BACK THE FULL CONSIDERATION
WHICH HAD BEEN PAID; AND THEY WERE HELD ENTITLED TO DO SO.  ON APPEAL
THE SUPREME COURT HELD THAT THE SALE COULD NOT BE GIVEN THIS UNITARY
CHARACTER, BUT MUST BE CONSIDERED WITH RESPECT TO THE INDIVIDUAL
ANIMALS,  - AND THAT VIEW STANDS.  IN ITS DECISION THAT, AS TO THE
TUBERCULOUS CATTLE, A CONTRACT WAS ENTERED INTO AND THE PLAINTIFFS'
RIGHTS WERE OF REDHIBITORY CHARACTER AND SUBJECT TO THE LIMITATION OF

ACCORDINGLY THE JUDGMENT OF THE SUPREME COURT WAS REVERSED AND THE
CAUSE REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO PERMIT AN
AMENDMENT TO THE COMPLAINT.  A DISSENTING OPINION APPROVED THE SUPREME
COURT'S CONSTRUCTION OF THE CODE, ALSO ITS JUDGMENT. 

THE MATTER IS HERE BY CERTIORARI.  MANIFESTLY THE SOLUTION OF THE
CONTROVERSY MUST TURN UPON THE MEANING AND EFFECT OF THE ABOVE QUOTED

CONSIDERING THE ARGUMENT HERE, THE DIVERGENT VIEWS BELOW, THE
AUTHORITIES CITED, AND "RECOGNIZING THE DEFERENCE DUE TO THE
UNDERSTANDING OF LOCAL COURTS UPON MATTERS OF PURELY LOCAL CONCERN," IT
BECOMES IMPOSSIBLE FOR US TO ENTERTAIN "A SENSE OF CLEAR ERROR
COMMITTED" BY THE SUPREME COURT.  FOLLOWING THE VIEW SO OFTEN APPROVED,
WE THINK THE CIRCUIT COURT OF APPEALS SHOULD HAVE ACCEPTED AND AFFIRMED
THE RULING THERE ANNOUNCED AFTER MUCH CONSIDERATION.  NADAL V. MAY, 233
U.S. 447, 454; DE VILLANUEVA V. VILLANUEVA, 239 U.S. 293, 299; DIAZ V.
GONZALEZ, 261 U.S. 102, 105. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED; THE
JUDGMENT OF THE SUPREME COURT IS AFFIRMED.  REVERSED. 
..END :




GENERAL BAKING CO. V. HARR, 300 U.S. 433 


NO. 559.  ARGUED MARCH 5, 1937.  - DECIDED MARCH 29, 1937.  - 85 F.(2D)
932, 934, REVERSED. 


DIVERSE CITIZENSHIP AND THE REQUISITE JURISDICTIONAL AMOUNT BEING
PRESENT, A DISTRICT COURT HAS JURISDICTION OF A SUIT BY A DEPOSITOR TO
FASTEN A TRUST ON FUNDS IN AN INSOLVENT STATE BANK, NOTWITHSTANDING
THAT THE BANK HAS BEEN TAKEN OVER BY A STATE OFFICIAL FOR LIQUIDATION
PURSUANT TO THE STATE LAW.  COMMONWEALTH TRUST CO. V. BRADFORD, 297
U.S. 613.  P. 434. 

GENERAL BAKING CO. V. HARR, SECRETARY OF BANKING OF PENNSYLVANIA, ET
AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 299 U.S. 539, TO REVIEW A JUDGMENT WHICH REVERSED A
JUDGMENT OF THE DISTRICT COURT AND DIRECTED DISMISSAL OF THE SUIT FOR
THE WANT OF JURISDICTION.  SEE 9 F.SUPP.  210, 214. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

ACTING UNDER PENNSYLVANIA STATUTES, OCTOBER 5, 1931, WILLIAM D.
GORDON, SECRETARY OF BANKING, (RESPONDENT HARR IS HIS SUCCESSOR) CLOSED
THE FRANKLIN TRUST COMPANY, A BANKING INSTITUTION IN PHILADELPHIA, AND
TOOK CONTROL OF ITS BUSINESS AND ASSETS. 

THEREAFTER IN THE UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF
PENNSYLVANIA, PETITIONER, A NEW YORK CORPORATION, PRESENTED A BILL
AGAINST GORDON, SETTING UP AN AGREEMENT BY WHICH IT UNDERTOOK TO KEEP
ON DEPOSIT WITH THE TRUST COMPANY A SUM SPECIFIED, AND THE LATTER
UNDERTOOK EITHER DIRECTLY OR THROUGH CORRESPONDENT BANKS TO ACCEPT
DEPOSITS OF CASH, CHECKS, ETC., AND TO FORWARD THE PROCEEDS THEREFROM
TO PETITIONER IN NEW YORK.  ALSO THAT WHEN CLOSED THE TRUST COMPANY HAD
IN ITS ASSETS $49,590.17 RECEIVED UNDER THIS AGREEMENT, AND ITS
CORRESPONDENT BANKS HAD ON HAND DEPOSITS LIKEWISE ACQUIRED AMOUNTING TO
$32,403.26. 

THE BILL PRAYED FOR A DECREE DECLARING PETITIONER OWNER OF THE
$32,403.26 AND THAT A TRUST EXISTED IN ITS FAVOR IN RESPECT OF THE
$49,590.17 DEPOSIT; ALSO FOR GENERAL RELIEF.  THE ANSWER SUGGESTED SOME
QUALIFICATIONS OF THE ALLEGED AGREEMENT AND DENIED THAT THERE WAS NO
ADEQUATE REMEDY AT LAW.  OTHERWISE, THE ALLEGATIONS OF THE BILL WERE
GENERALLY ADMITTED. 

THE DISTRICT COURT TOOK JURISDICTION OF THE CONTROVERSY; HELD
PETITIONER WAS NOT OWNER OF THE $32,403.26; ALSO THAT NO GROUND EXISTED
FOR IMPRESSING A TRUST UPON ASSETS BECAUSE OF THE $49,590.17 DEPOSIT;
AND DISMISSED THE BILL. 

THE CIRCUIT COURT OF APPEALS CONCLUDED THE DISTRICT COURT HAD NO
JURISDICTION AND SHOULD HAVE DISMISSED THE BILL WITHOUT ADJUDICATING
OTHER QUESTIONS.  IT ACCORDINGLY APPROVED THE DISMISSAL BUT DIRECTED
THAT THE CAUSE BE REFERRED TO THE STATE COURT FOR PROPER PROCEDURE
THERE. 

ALTHOUGH ENTERED IN SEPTEMBER, 1936, THE OPINION BELOW DOES NOT REFER
TO COMMONWEALTH TRUST CO. V. BRADFORD, 297 U.S. 613, DECIDED HERE MARCH
30, 1936.  NOTHING INDICATES THAT THIS OPINION WAS BROUGHT TO THE
COURT'S ATTENTION.  THE DOCTRINE THERE APPROVED, WE THINK, IS DECISIVE
OF THE ISSUE CONCERNING JURISDICTION NOW PRESENTED. 

IT WAS ERROR FOR THE CIRCUIT COURT OF APPEALS TO HOLD THAT THE
DISTRICT COURT WAS WITHOUT JURISDICTION OF THE CONTROVERSY.  IT SHOULD
HAVE PASSED ON ISSUES PROPERLY PRESENTED UPON THE APPEAL. 

THE QUESTIONED DECREE MUST BE REVERSED AND THE MATTER REMANDED TO THE
CIRCUIT COURT OF APPEALS FOR FURTHER PROCEEDINGS.  REVERSED. 
..END :




STROEHMANN V. MUTUAL LIFE CO., 300 U.S. 435 


NO. 599.  ARGUED MARCH 11, 1937.  - DECIDED MARCH 29, 1937.  - 86 F.(2D)
47, REVERSED.  DISTRICT COURT AFFIRMED. 


WHERE, FROM THE LANGUAGE OF A POLICY OF LIFE INSURANCE, IT IS DOUBTFUL
WHETHER PROVISIONS FOR DISABILITY BENEFITS WERE EXCEPTED FROM THE
"INCONTESTABLE" CLAUSE, THE DOUBT WILL BE RESOLVED IN FAVOR OF THE
INSURED.  PP. 439-440. 

STROEHMANN ET AL. V. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, POST, P. 646, TO REVIEW A DECREE REVERSING A DECREE
DISMISSING THE BILL.  THE SUIT WAS BY THE INSURANCE COMPANY TO CANCEL
THE DISABILITY BENEFITS PROVISIONS OF A POLICY UPON THE GROUND OF
FRAUD, ALLEGED TO HAVE BEEN PRACTICED BY THE INSURED IN OBTAINING THE
INSURANCE.  THE DISTRICT COURT AT FIRST REFUSED TO DISMISS THE BILL, 6
F.SUPP.  953, BUT LATER RULED THE OTHER WAY WHEN THE MOTION WAS RENEWED
AFTER THE BILL HAD BEEN AMENDED. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

BY A POLICY DATED JUNE 30, 1930, RESPONDENT INSURANCE COMPANY, A NEW
YORK CORPORATION, AGREED TO PAY THE NAMED BENEFICIARY $40,000.00 UPON
DEATH OF CARL F. STROEHMANN, THE INSURED.  OR TO PAY $80,000.00 IF HIS
DEATH RESULTS FROM ACCIDENTAL BODILY INJURY, "ALL UPON THE CONDITIONS
SET FORTH IN SECTION 1."  "AND IF THE INSURED IS TOTALLY AND PRESUMABLY
PERMANENTLY DISABLED BEFORE AGE 60, WILL PAY TO THE INSURED $400.00
MONTHLY DURING SUCH DISABILITY, INCREASING AFTER FIVE AND TEN YEARS
CONTINUOUS DISABILITY, BESIDES WAIVING PREMIUM PAYMENTS, ALL UPON THE
CONDITIONS SET FORTH IN SECTION 3." 

THE POLICY IS A LONG AND COMPLICATED DOCUMENT.  IT INCORPORATES THE
APPLICATION AND THE MEDICAL EXAMINER'S REPORT. 

OBLIGATION.  IT DEFINES THE INJURY TO WHICH THE INSURANCE APPLIES,
SPECIFIES THE NECESSARY PROOF, OPTIONAL MODES OF SETTLEMENT, ETC. 

BEFORE AGE 60," IS IN THE MARGIN.  FN1  IT DEFINES TOTAL AND PERMANENT
DISABILITY; STATES WHEN BENEFITS WILL BECOME EFFECTIVE; WHAT THEY SHALL
BE; WHEN PREMIUMS WILL BE WAIVED.  ALSO SPECIFIES WHAT WILL BE
CONSIDERED PERMANENT DISABILITY, WHEN PROOFS MAY BE DEMANDED, ETC.  AND
PROVIDES:  "DISABILITY BENEFITS SHALL NOT BE GRANTED IF DISABILITY IS
THE RESULT OF SELF-INFLICTED INJURY.  THE PROVISION FOR DISABILITY
BENEFITS SHALL AUTOMATICALLY TERMINATE IF THE INSURED SHALL AT ANY
TIME, VOLUNTARILY OR INVOLUNTARILY ENGAGE IN MILITARY OR NAVAL SERVICE
IN TIME OF WAR OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES
OF AMERICA AND THE DOMINION OF CANADA."  OTHER PROVISIONS RELATE TO
TERMINATION OF SUCH BENEFITS, REDUCTION OF PREMIUMS THEREAFTER, ETC. 

NEITHER SEC. 1 NOR SEC. 3 CONTAINS ANYTHING RELATIVE TO FRAUD IN
OBTAINING THE POLICY OR THE EFFECT OF FALSE STATEMENTS IN THE
APPLICATION. 

FOLLOWING PARAGRAPH: "INCONTESTABILITY.   - EXCEPT FOR NON-PAYMENT OF
PREMIUMS AND EXCEPT FOR THE RESTRICTIONS AND PROVISIONS APPLYING TO THE
DOUBLE INDEMNITY AND DISABILITY BENEFITS AS PROVIDED IN SECTIONS 1 AND
3 RESPECTIVELY, THIS POLICY SHALL BE INCONTESTABLE AFTER ONE YEAR FROM
ITS DATE OF ISSUE UNLESS THE INSURED DIES IN SUCH YEAR, IN WHICH EVENT
IT SHALL BE INCONTESTABLE AFTER TWO YEARS FROM ITS DATE OF ISSUE." 

IN OCTOBER, 1932, RESPONDENT FILED A BILL (AFTERWARDS AMENDED)
AGAINST STROEHMANN, THE INSURED, AND THE BENEFICIARY IN THE UNITED
STATES DISTRICT COURT, MIDDLE DISTRICT, PENNSYLVANIA.  IT ALLEGED THAT
THE POLICY HAD BEEN OBTAINED UPON FALSE AND FRAUDULENT
MISREPRESENTATIONS AND CONCEALMENTS MATERIAL TO THE RISK.  IT ASKED
THAT THE DISABILITY BENEFITS PROVISIONS BE CANCELLED, ALSO FOR AN
INJUNCTION AGAINST SUIT AT LAW UPON THEM. 

RELYING UPON THE INCONTESTABILITY CLAUSE THE PETITIONER MOVED THAT
THE BILL BE DISMISSED.  THE TRIAL COURT SUSTAINED THE MOTION, HOLDING
THAT AS MORE THAN A YEAR HAD ELAPSED SINCE THE POLICY TOOK EFFECT THE
LIMITATION WAS APPLICABLE AND CONTROLLING.  THE CIRCUIT COURT OF
APPEALS THOUGHT OTHERWISE AND REVERSED THE CHALLENGED DECREE. 

THE MATTER IS HERE BY CERTIORARI LIMITED TO THE QUESTION OF THE
APPLICATION AND EFFECT OF THE INCONTESTABILITY CLAUSE. 

NO REASON APPEARS TO DOUBT THE POWER OF THE INSURER TO EXCEPT FROM
THE ORDINARY INCONTESTABILITY CLAUSE ALL POLICY PROVISIONS RELATING TO
DISABILITY BENEFITS.  CH. 28, LAWS N.Y. (1923); STEINBERG V. N.Y. LIFE
INS. CO., 263 N.Y. 45; 188 N.E. 152.  BUT THE PETITIONER MAINTAINS THAT
THE WORDS USED IN THE POLICY BEFORE US ARE INADEQUATE DEFINITELY TO
DISCLOSE A PURPOSE SO TO DO.  AND WE THINK THE POINT IS WELL TAKEN. 

IN MUTUAL LIFE INSURANCE CO. V. HURNI PACKING CO., 263 U.S. 167, 174,
THIS COURT SAID:  "THE RULE IS SETTLED THAT IN CASE OF AMBIGUITY THAT
CONSTRUCTION OF THE POLICY WILL BE ADOPTED WHICH IS MOST FAVORABLE TO
THE INSURED.  THE LANGUAGE EMPLOYED IS THAT OF THE COMPANY AND IT IS
CONSISTENT WITH BOTH REASON AND JUSTICE THAT ANY FAIR DOUBT AS TO THE
MEANING OF ITS OWN WORDS SHOULD BE RESOLVED AGAINST IT."  SEE ROYAL
INSURANCE CO. V. MARTIN, 192 U.S. 149, 162, 165; BERGHOLM V. PEORIA
LIFE INS. CO., 284 U.S. 489, 492. 

EXAMINATION OF THE WORDS RELIED UPON TO SHOW AN EXCEPTION TO THE
INCONTESTABILITY CLAUSE OF THE POLICY DISCLOSES AMPLE CAUSE FOR DOUBT
CONCERNING THEIR MEANING.  THE ARGUMENTS OF COUNSEL HAVE EMPHASIZED THE
UNCERTAINTY.  THE DISTRICT COURT AND THE CIRCUIT COURT OF APPEALS
REACHED DIFFERENT CONCLUSIONS, AND ELSEWHERE THERE IS DIVERSITY OF
OPINION. 

THE DISTRICT COURT ACCEPTED THE VIEW APPROVED IN NESS V. MUTUAL LIFE
INS. CO. (FOURTH CIRCUIT), 70 F.(2D) 59, AND MUTUAL LIFE INS. CO. V.
MARKOWITZ, (NINTH CIRCUIT), 78 F.(2D) 396, WHICH PRESENTED FOR
INTERPRETATION LANGUAGE IDENTICAL WITH THAT NOW BEFORE US.  THE CIRCUIT
COURT OF APPEALS FOLLOWED ITS EARLIER OPINION IN N.Y. LIFE INS. CO. V.
GATTI, (OCT. 6, 1936), WHERE THE COMPANY EMPLOYED DIFFERENT LANGUAGE. 
CERTAIN LIFE COMPANIES UNDERTAKE TO MAKE EXCEPTIONS TO THE
INCONTESTABILITY CLAUSE BY WORDS MORE PRECISE THAN THOSE NOW UNDER
CONSIDERATION, AND OPINIONS IN CASES ARISING UPON THEIR POLICIES MUST
BE APPRAISED ACCORDINGLY. 

WITHOUT DIFFICULTY RESPONDENT COULD HAVE EXPRESSED IN PLAIN WORDS THE
EXCEPTION FOR WHICH IT NOW CONTENDS.  IT HAS FAILED, WE THINK, SO TO
DO.  AND APPLYING THE SETTLED RULE, THE INSURED IS ENTITLED TO THE
BENEFIT OF THE RESULTING DOUBT. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED.  THE
DECREE OF THE DISTRICT COURT IS AFFIRMED.  REVERSED. 

FN1  "SECTION 3.  - BENEFITS IN EVENT OF TOTAL AND PERMANENT
DISABILITY BEFORE AGE 60. 

"TOTAL DISABILITY.   - DISABILITY SHALL BE CONSIDERED TOTAL WHEN
THERE IS ANY IMPAIRMENT OF MIND OR BODY WHICH CONTINUOUSLY RENDERS IT
IMPOSSIBLE FOR THE INSURED TO FOLLOW A GAINFUL OCCUPATION. 

"PERMANENT DISABILITY.  - TOTAL DISABILITY SHALL, DURING ITS
CONTINUANCE, BE PRESUMED TO BE PERMANENT; 

"(A)  IF SUCH DISABILITY IS THE RESULT OF CONDITIONS WHICH RENDER IT
REASONABLY CERTAIN THAT SUCH DISABILITY WILL CONTINUE DURING THE
REMAINING LIFETIME OF THE INSURED; OR, 

"(B)  IF SUCH DISABILITY HAS EXISTED CONTINUOUSLY FOR NINETY DAYS. 

"WHEN BENEFITS BECOME EFFECTIVE.   - IF, BEFORE ATTAINING THE AGE OF
SIXTY YEARS AND WHILE NO PREMIUM ON THIS POLICY IS IN DEFAULT, THE
INSURED SHALL FURNISH TO THE COMPANY DUE PROOF THAT HE IS TOTALLY AND
PERMANENTLY DISABLED, AS DEFINED ABOVE, THE COMPANY WILL GRANT THE
FOLLOWING BENEFITS DURING THE REMAINING LIFETIME OF THE INSURED SO LONG
AS SUCH DISABILITY CONTINUES. 

"BENEFITS.  (A)  INCREASING INCOME.   - THE COMPANY WILL PAY A
MONTHLY INCOME TO THE INSURED OF THE AMOUNT STATED ON THE FIRST PAGE
HEREOF ($10 PER $1,000 FACE AMOUNT OF POLICY), BEGINNING UPON RECEIPT
OF DUE PROOF OF SUCH DISABILITY AND INCREASING AFTER SIXTY CONSECUTIVE
MONTHLY PAYMENTS HAVE BEEN MADE TO ONE AND ONE-HALF TIMES SUCH AMOUNT
AND AFTER SIXTY FURTHER CONSECUTIVE MONTHLY PAYMENTS HAVE BEEN MADE TO
TWICE SUCH AMOUNT AT WHICH IT SHALL REMAIN WHILE TOTAL AND PERMANENT
DISABILITY CONTINUES. 

"(B)  WAIVER OF PREMIUM.   - THE COMPANY WILL ALSO, AFTER RECEIPT OF
SUCH DUE PROOF, WAIVE PAYMENT OF EACH PREMIUM AS IT THEREAFTER BECOMES
DUE DURING SUCH DISABILITY. 

"SPECIFIED DISABILITIES.   - THE ENTIRE AND IRRECOVERABLE LOSS OF THE
SIGHT OF BOTH EYES, OR OF THE USE OF BOTH HANDS OR BOTH FEET OR ONE
HAND AND ONE FOOT, WILL BE CONSIDERED TOTAL AND PERMANENT DISABILITY. 

"GENERAL PROVISIONS.   - THE COMPANY MAY, BEFORE MAKING ANY INCOME
PAYMENT OR WAIVING ANY PREMIUM, REQUIRE DUE PROOF OF THE CONTINUANCE OF
TOTAL AND PERMANENT DISABILITY, BUT SUCH PROOF SHALL NOT BE REQUIRED
OFTENER THAN ONCE A YEAR AFTER SUCH DISABILITY HAS CONTINUED FOR TWO
YEARS.  IF SUCH PROOF IS NOT FURNISHED ON DEMAND OR IF IT SHALL APPEAR
TO THE COMPANY THAT THE INSURED IS NO LONGER TOTALLY AND PERMANENTLY
DISABLED, NO FURTHER INCOME PAYMENTS WILL BE MADE OR PREMIUMS WAIVED. 

"NEITHER THE DIVIDENDS NOR THE AMOUNT PAYABLE IN ANY SETTLEMENT
HEREOF SHALL BE DECREASED BECAUSE OF DISABILITY BENEFITS GRANTED. 

"IF THE INSURED SHALL AT ANY TIME SO RECOVER THAT THE PAYMENT OF
DISABILITY BENEFITS TERMINATES AND LATER SHALL FURNISH DUE PROOF THAT
HE HAS AGAIN BECOME TOTALLY AND PERMANENTLY DISABLED, DISABILITY
BENEFITS SHALL BE THE SAME IN AMOUNT AND SUBJECT TO THE SAME CONDITIONS
AS IF NO PRIOR DISABILITY HAD EXISTED. 

"IF THE DISABILITY OF THE INSURED SHALL BE THE RESULT OF INSANITY,
INCOME PAYMENTS SHALL BE PAYABLE TO THE BENEFICIARY, IF ANY, INSTEAD OF
TO THE INSURED. 

"ANY DISABILITY INCOME PAYMENT WHICH MAY BECOME PAYABLE AND WHICH IS
UNPAID AT THE DEATH OF THE INSURED SHALL BE PAID TO THE BENEFICIARY. 

"DISABILITY BENEFITS SHALL NOT BE GRANTED IF DISABILITY IS THE RESULT
OF SELF-INFLICTED INJURY. 

"THE PROVISION FOR DISABILITY BENEFITS SHALL AUTOMATICALLY TERMINATE
IF THE INSURED SHALL AT ANY TIME, VOLUNTARILY OR INVOLUNTARILY, ENGAGE
IN MILITARY OR NAVAL SERVICE IN TIME OF WAR OUTSIDE OF THE CONTINENTAL
LIMITS OF THE UNITED STATES OF AMERICA AND THE DOMINION OF CANADA. 

"IF REQUESTED IN WRITING BY THE INSURED, THE COMPANY WILL TERMINATE
THE PROVISION FOR DISABILITY BENEFITS BY ENDORSEMENT ON THIS POLICY. 

"IF THE INSURED ATTAINS THE AGE OF SIXTY YEARS OR IF THE PROVISION
FOR DISABILITY BENEFITS TERMINATES, THE PREMIUMS PAYABLE AFTER SUCH AGE
OR SUCH TERMINATION SHALL BE REDUCED BY THE PREMIUM FOR SUCH
BENEFITS." 
..END :























WRIGHT V. VINTON BRANCH, 300 U.S. 440 


NO. 530.  ARGUED MARCH 3, 4, 1937.  - DECIDED MARCH 29, 1937.  - 85
F.(2D) 973, REVERSED. 


1.  A MOTION TO DISMISS A PETITION UNDER SEC. 75(S), AS AMENDED, OF
THE BANKRUPTCY ACT UPON THE GROUND THAT, AS APPLIED TO THE OWNER OF A
FARM LOAN SECURED BY DEED OF TRUST, PROVISIONS OF THAT SUBSECTION ARE
UNCONSTITUTIONAL, HELD NOT PREMATURE WHERE THE FARMER DEBTOR HAD TAKEN
ALL AFFIRMATIVE ACTION REQUIRED OF HIM UNDER THE SECTION TO INITIATE
PROCEEDINGS LEADING TO A STAY OF FORECLOSURE.  P. 456. 

LOUISVILLE JOINT STOCK BANK V. RADFORD, 295 U.S. 555, DID NOT
QUESTION THE POWER OF CONGRESS TO OFFER TO DISTRESSED FARMERS MEANS OF
REHABILITATION UNDER THE BANKRUPTCY CLAUSE. 

2.  WHEN THE VALIDITY OF AN ACT OF CONGRESS IS DRAWN IN QUESTION, AND
EVEN 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.  P. 461. 

3.  SECTION 75(S) OF THE BANKRUPTCY ACT, AS AMENDED, (THE NEW FRAZIER
LEMKE ACT) IS CONSTRUED WITH COMMITTEE REPORTS AND IS FOUND ADEQUATELY
TO PRESERVE THE FOLLOWING SUBSTANTIVE RIGHTS OF A FARM MORTGAGEE, WHICH
THIS COURT HELD IN LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295
U.S. 555, WERE NOT PROTECTED BEFORE THE AMENDMENT, VIZ., (A) THE RIGHT
TO RETAIN THE LIEN UNTIL THE INDEBTEDNESS THEREBY SECURED IS PAID; (B)
THE RIGHT TO REALIZE UPON THE SECURITY BY A JUDICIAL SALE; (C) THE
RIGHT TO PROTECT THE MORTGAGEE'S INTEREST IN THE PROPERTY BY BIDDING AT
SUCH SALE WHENEVER HELD.  P. 458. 

4.  IN THE RADFORD CASE, SUPRA, IT WAS NOT HELD THAT DEPRIVATION OF
ANY ONE OF THE FIVE RIGHTS OF A MORTGAGEE ENUMERATED IN THE OPINION
(PP. 594, 595) WOULD RENDER THE ORIGINAL FRAZIER-LEMKE ACT INVALID, BUT
THAT THE EFFECT OF THE STATUTE IN ITS ENTIRETY WAS TO DEPRIVE THE
MORTGAGEE OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW.  P. 457. 

5.  WHILE THE NEW ACT AFFORDS THE FARMER DEBTOR, ORDINARILY, A THREE
YEAR STAY OF FORECLOSURE, THE STAY IS NOT AN ABSOLUTE ONE; THE COURT
MAY TERMINATE IT EARLIER AND ORDER A SALE.  P. 460. 

6.  CONSTRUED IN THE LIGHT OF COMMITTEE REPORTS, AND THE EXPOSITION
OF THE BILL MADE IN BOTH HOUSES BY ITS AUTHORS AND THOSE IN CHARGE OF
THE BILL AND ACCEPTED BY THE CONGRESS WITHOUT DISSENT, THE AMENDED ACT
GIVES THE COURT BROAD POWER TO CURTAIL THE STAY OF FORECLOSURE, FOR THE
PROTECTION OF MORTGAGEES.  THE PROPERTY OF WHICH THE DEBTOR RETAINS
POSSESSION IS AT ALL TIMES IN THE CUSTODY AND UNDER THE SUPERVISION AND
CONTROL OF THE COURT.  IF THE DEBTOR DEFAULTS AT ANY TIME IN HIS
OBLIGATION TO PAY A REASONABLE RENTAL FOR THE PART OF THE PROPERTY OF
WHICH HE RETAINS POSSESSION, OR FAILS AT ANY TIME TO COMPLY WITH ORDERS
OF THE COURT ISSUED UNDER ITS POWER TO REQUIRE INTERIM PAYMENTS ON
PRINCIPAL, OR OTHER ORDERS ISSUED IN THE COURSE OF THE COURT'S
SUPERVISION AND CONTROL OF HIS POSSESSION, OR IF AFTER A REASONABLE
TIME IT BECOMES EVIDENT TO THE COURT THAT THERE IS NO REASONABLE HOPE
THAT THE DEBTOR CAN REHABILITATE HIMSELF FINANCIALLY WITHIN THE THREE
YEAR PERIOD, OR IF WITHIN THAT PERIOD THE COURT FINDS THAT THE
EMERGENCY THAT GAVE RISE TO THE LEGISLATION HAS CEASED TO EXIST,  - THE
COURT MAY TERMINATE THE STAY AND ORDER A SALE.  P. 461. 

7.  THE AMENDED ACT IS NOT UNCONSTITUTIONAL AS APPLIED TO A MORTGAGEE
BECAUSE POSSESSION OF THE PROPERTY DURING THE STAY OF FORECLOSURE IS IN
THE DEBTOR SUBJECT TO THE OBLIGATIONS IMPOSED BY THE ACT AND UNDER THE
SUPERVISION AND CONTROL OF THE COURT, RATHER THAN IN A RECEIVER OR
TRUSTEE.  P. 465. 

8.  THE CLAUSE OF THE AMENDED ACT, SEC. 75(S), PAR. 2, PROVIDING THAT
THE FIRST PAYMENT OF RENTAL BY THE DEBTOR IN POSSESSION SHALL BE WITHIN
ONE YEAR OF THE DATE OF THE STAY ORDER, IS CONSTRUED, IN VIEW OF THE
ADDITIONAL REQUIREMENT THAT THE PAYMENTS SHALL BE SEMI-ANNUAL, NOT AS
MEANING THAT THE DEBTOR MAY NOT BE REQUIRED BY THE COURT TO PAY ANY
RENT BEFORE THE CLOSE OF THE FIRST YEAR, BUT AS FORBIDDING THE COURT TO
POSTPONE THE PAYMENT BEYOND ONE YEAR.  SO CONSTRUED, THE CLAUSE IS NOT
UNREASONABLE OR ARBITRARY.  P. 467. 

9.  THE REQUIREMENT OF THE AMENDED ACT THAT THE RENTS PAID INTO COURT
BY THE DEBTOR IN POSSESSION DURING STAY OF FORECLOSURE SHALL BE APPLIED
FIRST ON TAXES AND UPKEEP, IS CONSISTENT WITH THE CONSTITUTIONAL RIGHTS
OF THE MORTGAGEE.  P. 468. 

10.  THE OBJECTION THAT THE AMENDED ACT UNCONSTITUTIONALLY RESTRICTS
A LIENOR'S REMEDY UNDER THE STATE LAW BY DELAYS INTERPOSED TO THE
ENFORCEMENT OF HIS RIGHTS, IS TO BE TESTED NOT BY WHAT MIGHT BE
PERMITTED TO A STATE UNDER THE CONTRACT CLAUSE OF THE CONSTITUTION, BUT
BY WHETHER, AS AN EXERCISE OF THE BANKRUPTCY POWER, FOR THE
REHABILITATION OF THE FARMER MORTGAGOR, THE ACT SO FAR MODIFIES THE
LIENOR'S RIGHTS, REMEDIAL OR SUBSTANTIVE, AS TO DENY THE DUE PROCESS OF
LAW GUARANTEED BY THE FIFTH AMENDMENT.  P. 468. 

WRIGHT V. VINTON BRANCH OF THE MOUNTAIN TRUST BANK OF ROANOKE ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 299 U.S. 537, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
OF THE BANKRUPTCY COURT, 12 F.SUPP.  297, WHICH, ON THE MOTION OF A
SECURED CREDITOR, DISMISSED A PETITION FILED BY A FARMER UNDER SEC. 75,
SUBSECTION (S), AS AMENDED, OF THE BANKRUPTCY ACT. 

THE HISTORY AND DEVELOPMENT OF BANKRUPTCY LEGISLATION IN THE UNITED
STATES HAVE BEEN EXHAUSTIVELY CONSIDERED IN A NUMBER OF RECENT CASES IN
THIS COURT.  CONTINENTAL ILLINOIS NATIONAL BANK & TRUST CO. V. CHICAGO,
R.I. & P. RY. CO., 294 U.S. 648; LOUISVILLE JOINT STOCK LAND BANK V.
RADFORD, 295 U.S. 555; ASHTON V. CAMERON COUNTY, 298 U.S. 513. 

THE NEW FRAZIER-LEMKE ACT IS BASED ON CONSTITUTIONAL POWER TO ENACT
LAWS ON THE SUBJECT OF BANKRUPTCIES, AND IS A REASONABLE EXERCISE OF
THAT POWER.  WHILE THE NEW ACT HAS FOR ITS OBJECT THE CONSERVATION AND
PRESERVATION OF AGRICULTURE, AS DID THE ORIGINAL ACT, YET THE METHODS
AND MEANS EMPLOYED ARE ESSENTIALLY DIFFERENT. 

WHEN THIS COURT HELD THE ORIGINAL ACT UNCONSTITUTIONAL IN LOUISVILLE
JOINT STOCK LAND BANK V. RADFORD, SUPRA, THE PRESENT ACT WAS INTRODUCED
IN BOTH THE SENATE AND THE HOUSE.  IT WAS REFERRED TO THE JUDICIARY
COMMITTEES, WHICH REFERRED IT TO SUBCOMMITTEES FOR STUDY AND
CONSIDERATION WITH THE PURPOSE OF COMPLYING WITH THE COURT'S DECISION. 
THE BILL WITH THE CHANGES AND AMENDMENTS MADE BY THE SUBCOMMITTEES WAS
THEN BROUGHT UP BEFORE THE COMMITTEES OF THE WHOLE OF BOTH THE SENATE
AND THE HOUSE, AND FURTHER AMENDMENTS WERE MADE.  THEREAFTER IT WAS
DEBATED ON THE FLOORS OF THE SENATE AND THE HOUSE AND PASSED WITHOUT A
DISSENTING VOTE IN EITHER HOUSE. 

THERE IS NOTHING NOVEL IN THE NEW ACT.  IT SIMPLY APPLIES WELL
ESTABLISHED PRINCIPLES OF BANKRUPTCY LAW TO AGRICULTURE.  THIS MAY
APPEAR NOVEL, BUT THERE IS NO PROVISION OF THE ACT WHICH THE BANKRUPTCY
COURTS HAVE NOT ALREADY PASSED UPON. 

THE COURTS HAVE ALLOWED GOING CONCERNS TO REMAIN IN POSSESSION, AND
TO CONTINUE IN BUSINESS UNDER TRUSTEES, AND WITHOUT TRUSTEES.  THEY
HAVE PERMITTED POSSESSION AND THE PAYMENT OF INDEBTEDNESS OF SUCH
CONCERNS ON THE INSTALMENT PLAN, WITH OR WITHOUT INTEREST.  IN RE
REIMAN, FED. CAS. NO. 11,673; SPARHAWK V. YERKES, 142 U.S. 114; IN RE
SWOFFORD CO., 180 FED. 549; BURLINGHAM V. CROUSE, 228 U.S. 459. 

THE COURTS HAVE SCALED DOWN INDEBTEDNESS TO LESS THAN THE VALUE OF
THE PROPERTY, THROUGH COMPOSITION, AND THEY HAVE GIVEN EXTENSION OF
TIME IN WHICH PAYMENTS WERE TO BE MADE; AND THIS, AT TIMES, AGAINST THE
WISHES OF THE MINORITY.  WHAT CAN BE DONE TO A MINORITY CAN BE DONE TO
A MAJORITY OR TO ALL OF THEM, SECURED OR UNSECURED CREDITORS, AND STILL
BE CONSTITUTIONAL.  COURTS HAVE SOLD ENCUMBERED PROPERTY FREE OF LIEN,
AND UNINCUMBERED PROPERTY FOR CASH OR ON TIME.  CF. IN RE MERKUS, 289
FED. 732; TRAER V. CLEWS, 115 U.S. 528; IN RE WATERLOO ORGAN CO., 118
FED. 904; MATTER OF THEIBERG, 47 AM. B.R. 257; MATTER OF FRANKLIN
BREWING CO., 41 AM. B.R. 51; MATTER OF TUBE CO., 25 AM. B.R. 651; SHINN
V. KEMP & HERBERT, 73 WASH. 254; VAN HUFFEL V. HARKELRODE, 284 U.S.
225. 

FEDERAL. 

ACTS OF CONGRESS HELD TO BE UNCONSTITUTIONAL AS ORIGINALLY ENACTED,
HAVE ON SEVERAL OCCASIONS BEEN HELD CONSTITUTIONAL WHEN REENACTED IN
ALTERED FORM WITH THE DESIGN OF MEETING THE COURT'S OBJECTIONS.  CF.
HILL V. WALLACE, 259 U.S. 44; CHICAGO BOARD OF TRADE V. OLSON, 262 U.S.
1; EMPLOYERS' LIABILITY CASES, 207 U.S. 463; SECOND EMPLOYERS'
LIABILITY CASES, 223 U.S. 1. 

THE DUTY OF THE COURT IS TO SQUARE A NEW STATUTE WITH THE
CONSTITUTION.  UNITED STATES V. BUTLER, 297 U.S. 1.  FORMER DECISIONS
ON THE VALIDITY OF OLDER STATUTES ARE NOT STARE DECISIS.  HERTZ V.
WOODMAN, 218 U.S. 205, 212; DISANTO V. PENNSYLVANIA, 273 U.S. 3, DIS. 
OP. 

THE NEW SUBSECTION (S) PROVIDES THAT ANY FARMERDEBTOR, WHO FAILS
UNDER SUBSECTIONS A-R OF SEC. 75 TO EFFECT A COMPOSITION WITH HIS
CREDITORS, MAY AMEND HIS PETITION OR ANSWER ASKING TO BE ADJUDGED A
BANKRUPT.  ALL THE DEBTOR'S PROPERTY WHEREVER LOCATED IS THEN TO BE
APPRAISED AT ITS FAIR AND REASONABLE MARKET VALUE.  HIS UNENCUMBERED
EXEMPTIONS ARE SET ASIDE TO HIM. 

THE DEBTOR IS ALLOWED TO RETAIN POSSESSION OF ANY PART OR ALL OF THE
REMAINDER OF HIS PROPERTY FOR A PERIOD OF THREE YEARS UNDER SUPERVISION
AND CONTROL OF THE COURT.  THE DEBTOR IS REQUIRED TO PAY A REASONABLE
RENTAL INTO COURT FOR THE PART OF THE PROPERTY HE RETAINS.  THIS RENTAL
IS TO BE APPLIED FIRST TO PAY TAXES AND UPKEEP OF THE PROPERTY, AND THE
REMAINDER DISTRIBUTED AMONG CREDITORS, SECURED AND UNSECURED, AND
APPLIED ON THEIR CLAIMS AS THEIR INTERESTS MAY APPEAR.  THE COURT IS
GIVEN POWER TO SELL UNEXEMPT AND PERISHABLE PERSONAL PROPERTY IF DEEMED
NECESSARY TO PROTECT THE INTERESTS OF CREDITORS.  THE COURT MAY, IF IT
SEES FIT, REQUIRE PAYMENTS ON PRINCIPAL WITH A VIEW TO THE DEBTOR'S
ABILITY TO PAY. 

AFTER THREE YEARS HAVE ELAPSED, OR SOONER IF HE DESIRES, THE DEBTOR
MAY PAY INTO COURT THE AMOUNT OF THE APPRAISAL OF THE PROPERTY OF WHICH
HE HAS RETAINED POSSESSION, AND THE COURT WILL TURN OVER TO HIM FULL
TITLE TO AND POSSESSION OF THAT PROPERTY, FREE AND CLEAR OF
ENCUMBRANCES.  THIS PROCEDURE IS SUBJECT TO TWO PROVISOS:  1.  ON THE
REQUEST OF ANY CREDITOR, SECURED OR UNSECURED, OR OF THE DEBTOR, THE
COURT MAY ORDER A REAPPRAISAL OF THE PROPERTY AND REQUIRE THE DEBTOR TO
PAY THAT PRICE.  2.  ON THE DEMAND OF ANY SECURED CREDITOR THE COURT
MUST ORDER THE PROPERTY ON WHICH THE CREDITOR HAS A LIEN SOLD AT PUBLIC
AUCTION.  IF THE DEBTOR FAILS TO COMPLY WITH THE PROVISIONS OF THE ACT,
OR ANY COURT ORDER MADE THEREUNDER, A TRUSTEE MAY BE APPOINTED AND THE
PROPERTY SOLD AS IN OTHER BANKRUPTCY CASES. 

IT IS AN ACT ON THE SUBJECT OF BANKRUPTCIES.  SEE IN RE KLEIN
(REPORTED IN NOTE TO NELSON V. CARLAND, 1 HOW.  265); IN RE REIMAN,
FED. CAS. NO. 11,673; HANOVER NAT. BANK V. MOYSES, 186 U.S. 181;
LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555; IN RE
CHICAGO, R.I. & P. RY. CO., 72 F.(2D) 443; CONTINENTAL ILLINOIS BANK V.
CHICAGO, R.I. & P. RY. CO., 294 U.S. 648. 

IT DOES NOT TAKE PROPERTY WITHOUT DUE PROCESS. 

IN LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555, HOLDING
THE FIRST SEC. 75(S) VOID, THE COURT LISTED FIVE RIGHTS OF A SECURED
CREDITOR WHICH WERE SAID TO HAVE BEEN IMPAIRED.  IT DID NOT HOLD THE
ORIGINAL ACT UNCONSTITUTIONAL BECAUSE OF THE INFRINGEMENT OF ALL OF
THESE RIGHTS.  THE COURT HELD THE ACT UNCONSTITUTIONAL BECAUSE IT WAS
IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  IN
FACT, IN CONTINENTAL ILLINOIS BANK V. CHICAGO, R.I. & P. RY. CO., 294
U.S. 648, THIS COURT, IN HOLDING SEC. 77 OF THE BANKRUPTCY ACT
CONSTITUTIONAL, MUST HAVE FOUND THAT ALL OF THESE SO-CALLED RIGHTS
ENUMERATED IN THE RADFORD CASE WERE QUALIFIED AND SUBJECT TO THE
FEDERAL CONSTITUTION.  WE SAY THIS BECAUSE SEC. 77 OF THE BANKRUPTCY
ACT, PROVIDING FOR REORGANIZATION OF RAILROAD CORPORATIONS, IS MUCH
MORE DRASTIC AND ARBITRARY AS FAR AS THE CREDITOR'S RIGHTS ARE
CONCERNED THAN SUBSECTION (S) OF SEC. 75. 

IT WAS HELD IN THE RADFORD CASE, SUPRA, THAT THE TAKING OF THESE FIVE
SO-CALLED RIGHTS AS A GROUP HAD THE EFFECT OF SUBSTANTIALLY IMPAIRING
THE MORTGAGEE'S SECURITY.  IT IS CLEAR FROM A READING OF THE NEW ACT
THAT RIGHTS NUMBERED (1), (2) AND (4) ARE FULLY AND COMPLETELY
PRESERVED. 

RIGHTS NUMBERED (3) AND (5), "THE RIGHT TO DETERMINE WHEN SUCH SALE
SHALL BE HELD, SUBJECT ONLY TO THE DISCRETION OF THE COURT," AND "THE
RIGHT TO CONTROL MEANWHILE THE PROPERTY DURING THE PERIOD OF DEFAULT,
SUBJECT ONLY TO THE DISCRETION OF THE COURT, AND TO HAVE THE RENTS AND
PROFITS COLLECTED BY A RECEIVER FOR THE SATISFACTION OF THE DEBT," ARE
NOT SUBSTANTIVE, BUT REMEDIAL, RIGHTS AND AS SUCH ARE SUBJECT TO
CONTROL UNDER THE BANKRUPTCY POWER.  THEY ARE ONLY RELATIVE OR REMEDIAL
RIGHTS WHICH MAY BE, AND HAVE BEEN, SUSPENDED OR TAKEN AWAY WITHOUT
VIOLATING THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  CF.
CONTINENTAL ILLINOIS BANK V. CHICAGO, R.I. & P. RY. CO., 294 U.S. 648,
HOLDING THE ORIGINAL SEC. 77 OF THE BANKRUPTCY ACT CONSTITUTIONAL.  CF.
CAMPBELL V. ALLEGANY CORP., 75 F.(2D) 947, CERT. DEN., 296 U.S. 581,
HOLDING SEC. 77B OF THE BANKRUPTCY ACT CONSTITUTIONAL. 

IN NO CASE DOES SEC. 75(S) TREAT CREDITORS' RIGHTS MORE ARBITRARILY
THAN EITHER SEC. 77 OR SEC. 77B.  IN MOST SITUATIONS IT DOES NOT GO
NEARLY SO FAR. 

THE AMENDMENT IS A REASONABLE ADAPTATION OF BANKRUPTCY PROCEEDINGS TO
FARMERS' CONDITIONS. 

IN BANKRUPTCY PROCEEDINGS, THE COURT SHOULD BE INFLUENCED BY THE
CONSIDERATION THAT A MAN CAN ORDINARILY DO BETTER WITH HIS OWN PROPERTY
AND REALIZE MORE THEREFROM THAN CAN BE OBTAINED IN THE COURSE OF
JUDICIAL PROCEEDINGS, WITH COMPULSORY SALES AND EXPENSES OF
ADMINISTRATION.  IN RE ARRINGTON CO., 113 FED. 498; DALLAS JOINT STOCK
LAND BANK V. DAVIS, 83 F.(2D) 322. 

THE AMENDMENT IS REASONABLE AND THE NECESSITY FOR IT IS SHOWN BY
STATISTICS. 

DECLARATION OF THE EXISTENCE OF AN EMERGENCY BY A LEGISLATIVE BODY
CANNOT BE REGARDED AS A SUBTERFUGE OR AS LACKING IN ADEQUATE BASIS. 
HOME BLDG. & LOAN ASSN. V. BLAISDELL, 290 U.S. 398; BLOCK V. HIRSH, 256
U.S. 135. 

RECENT IMPROVEMENTS IN FARM CONDITIONS SHOW THAT SUSPENSION OF SALE
OF FARM PROPERTY WILL BENEFIT BOTH CREDITOR AND DEBTOR. 

WHILE THE VALUE OF FARM LANDS HAS INCREASED, THE AGRICULTURAL DEBT
STRUCTURE HAS REMAINED PRACTICALLY THE SAME, EXCEPT AS REDUCED BY
FORECLOSURES.  THE INCREASE IN THE VALUE OF FARM LANDS HAS IN FACT
STIMULATED FORECLOSURES.  THERE IS LITTLE MONEY AVAILABLE FOR FARM
LOANS.  THE TRUTH IS THAT THE FARMER WHO REALLY NEEDS HELP CANNOT GET
IT.  AS A RESULT, HUNDREDS AND THOUSANDS OF FARM FORECLOSURES AND
EVICTIONS ARE TAKING PLACE IN PRACTICALLY EVERY PART OF THIS NATION. 

THE PURPOSE OF THE BANKRUPTCY ACT WAS TWO-FOLD:  FIRST, TO PROVIDE
FOR AN EQUITABLE DISTRIBUTION OF THE BANKRUPT'S ESTATE AMONG HIS
CREDITORS; SECOND, TO REHABILITATE THE BANKRUPT AND TO GIVE HIM A FRESH
START IN LIFE FREE FROM THE BURDEN OF HIS DEBTS. 

THE COURT HAS STRESSED THE FACT THAT THE BANKRUPTCY ACT IS FOUNDED ON
SOUND PUBLIC POLICY.  STELLWAGEN V. CLUM, 254 U.S. 605; IN RE KLEIN, 1
HOW.  279; CONTINENTAL ILLINOIS BANK V. CHICAGO, R.I. & P. RY. CO., 294
U.S. 648; CANADA SOUTHERN R. CO. V. GEBHARD, 109 U.S. 527, 536. 

IT IS WITHIN THE POWER OF THE COURT TO TRANSFER THE CREDITOR'S LIEN
TO THE PROCEEDS OF A SALE OF THE PROPERTY, AND TO ALLOW THE BANKRUPT TO
REPURCHASE THE PROPERTY.  VAN HUFFEL V. HARKELRODE, 284 U.S. 225; TRAER
V. CLEWS, 115 U.S. 528; SPARHAWK V. YERKES, 142 U.S. 1. 

CONGRESS MAY, UNDER THE BANKRUPTCY POWER, STAY JUDICIAL PROCEEDINGS
FOR THREE YEARS.  CF. SECS. 77, 77B; HOME BLDG. & LOAN ASSN. V.
BLAISDELL, 290 U.S. 398. 

THE EXPERIENCE WITH BANKRUPTCY ADMINISTRATION SHOWS THAT, EVEN IN
NORMAL TIMES AND UNDER NORMAL CONDITIONS, DISTRIBUTION TAKES NOT MUCH
LESS THAN 3 YEARS.  IN TIMES OF EMERGENCY AND ECONOMIC DISTRESS IT
TAKES LONGER, BECAUSE THE PROBLEM OF LIQUIDATION IS MORE DIFFICULT AND
SLOW, DUE TO LACK OF BUYERS OF BANKRUPT ESTATES. 

IN THE FAMOUS RENT CASES, TENANTS WERE ALLOWED TO REMAIN IN
POSSESSION OVER THE OBJECTION OF LANDLORDS, PROVIDED REASONABLE RENT
WAS PAID.  CF. LEVY LEASING CO. V. SIEGAL, 258 U.S. 242; MARCUS BROWN
HOLDING CO. V. FELDMAN, 256 U.S. 170; BLOCK V. HIRSH, 256 U.S. 135. 

THE MORATORIUM IS A PROPER EXERCISE OF FEDERAL POLICE POWER WITHIN
THE RESPECTIVE FIELDS OF SOVEREIGNTY ENUMERATED IN ART. I, SEC. 8, OF
THE CONSTITUTION.  CONGRESS MAY EXERCISE FULL POLICE POWER TO THE SAME
EXTENT THAT A STATE LEGISLATURE MAY EXERCISE POLICE POWER WITHIN THE
FIELDS OF SOVEREIGNTY NOT GRANTED TO THE FEDERAL GOVERNMENT.  CF.
HAMILTON V. KENTUCKY DISTILLERIES, 251 U.S. 146, 156; CHAMPION V. AMES,
188 U.S. 321, 357; MCCRAY V. UNITED STATES, 195 U.S. 27, 59; HIPOLITE
EGG CO. V. UNITED STATES, 220 U.S. 45, 57, 58; HOKE V. UNITED STATES,
227 U.S. 308; CAMINETTI V. UNITED STATES, 242 U.S. 470, 492; SEVEN
CASES V. UNITED STATES, 239 U.S. 510, 514, 515; UNITED STATES V.
DOREMUS, 249 U.S. 86, 93, 94. 

THE FIFTH AMENDMENT IMPOSES IN THIS RESPECT NO GREATER LIMITATION
UPON THE NATIONAL POWER THAN DOES THE FOURTEENTH AMENDMENT UPON STATE
POWER.  IN RE KEMMLER, 136 U.S. 436, 438; CARROLL V. GREENWICH
INSURANCE CO., 199 U.S. 401, 410; BROOKS V. UNITED STATES, 267 U.S.
432, 436; BLOCK V. HIRSH, 256 U.S. 135, 155. 

THE SOVEREIGNTY OF THE UNITED STATES UNDER ART. I, SEC. 8, CL. 4, TO
"ESTABLISH UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES," IS AS
UNTRAMMELED AS ANY OF THE OTHER SIXTEEN COGNATE SOVEREIGNTIES GRANTED
IN THE SAME SECTION. 

THE MORATORIUM IN SUBSECTION (S) UNDER THE POWER OF CONGRESS TO
LEGISLATE UPON "THE SUBJECT OF BANKRUPTCIES" IS A PROPER EXERCISE OF
THE FEDERAL POLICE POWER.  IT IS AS VALID AS THE POWER OF A STATE TO
ENACT A MORATORIUM DURING THE EXISTENCE OF THE SAME EMERGENCY UNDER ITS
POLICE POWER. 

THE ACT DOES NOT DENY FULL FAITH AND CREDIT TO STATE LAWS AND
JUDICIAL DECREES. 

THE ACT IS A UNIFORM LAW ON THE SUBJECT OF BANKRUPTCIES.    EVEN IF
CLAUSE (6) OF THE ACT WERE HELD UNCONSTITUTIONAL, IT CAN BE SEVERED
FROM THE REST OF THE ACT. 

IT SHOULD BE ESPECIALLY OBSERVED THAT UNDER THE VIRGINIA LAW NO
PROCEEDINGS IN COURT ARE NECESSARY TO ENFORCE A DEED OF TRUST.  UPON
NOTIFICATION BY THE HOLDER OF THE DEBT THAT THERE HAS BEEN A DEFAULT,
THE TRUSTEE PROCEEDS TO SELL THE PROPERTY, AND PENDING SALE MAY RENT
THE PROPERTY FOR THE FUTURE PROTECTION OF THE CREDITOR.  THE SALE BY
THE TRUSTEE IS ABSOLUTE AND FINAL, AND THE SALE WILL NOT BE ENJOINED IN
VIRGINIA SO LONG AS THE TRUSTEE ACTS WITHIN THE POWERS GIVEN HIM BY THE
TRUST INSTRUMENT OR BY STATE LAW.  IT IS, THEREFORE, EVIDENT THAT THE
POSITIONS OF THE SECURED CREDITORS IN THIS CASE AND IN THE RADFORD CASE
ARE SIMILAR, WITH THE EXCEPTION THAT IN THIS CASE UNDER THE VIRGINIA
LAW THE RIGHTS OF THE CREDITORS ARE MORE ABSOLUTE IN FORM AND THE
EXERCISE OF THOSE RIGHTS IS NOT SUBJECT TO THE DISCRETION OF THE
COURT.  SEE IN RE SHERMAN, 12 F.SUPP.  297. 

UNDER THE OPERATION OF THIS ACT SOME TIME WILL BE OCCUPIED, PERHAPS
SEVERAL MONTHS, IN ATTEMPTING TO SECURE THE RELIEF PROVIDED FOR IN THE
EXTENSION OF THE DEBTOR'S OBLIGATION WITH THE CONSENT OF THE CREDITORS;
THEN, WHEN A PETITION IS FILED PRAYING FOR THE RELIEF OUTLINED IN
SUBSECTION (S), A FURTHER PERIOD OF MONTHS WILL BE CONSUMED IN HAVING
THE PROPERTY APPRAISED AND PUTTING THE DEBTOR IN THE POSITION HE MUST
OCCUPY BEFORE THE STAY IS GRANTED.  THERE IS A FOUR MONTHS' PERIOD,
WHICH WOULD PROLONG THE DELAY, WHEREIN HE IS GIVEN TIME TO OBJECT TO
THE APPRAISEMENT.  THEN, SHOULD THE OFFICIAL AND JUDICIAL PROCEDURE BE
STAYED FOR A PERIOD OF THREE YEARS, NO RENT WILL BE PAID FOR ONE YEAR,
SINCE THE PAYMENT OF RENT IS NOT A CONDITION PRECEDENT TO THE OPERATION
OF THE ACT.  IF WE COMPARE THE POSITION OF THE CREDITOR UNDER THE
VIRGINIA LAW PRIOR TO THE PASSAGE OF THIS ACT WITH HIS POSITION
THEREAFTER, WE FIND THAT NOT ONLY IS THE APPLICATION OF THE SECURITY TO
THE PAYMENT OF THE DEBT DEFERRED FOR THREE OR MORE YEARS, BUT THE RENTS
AND PROFITS ARE DIVERTED FROM HIM FOR ONE YEAR OR MORE, AND EVEN THEN
THE RENTAL IS PAID ON TAXES AND UPKEEP OF THE PROPERTY IN DEROGATION OF
HIS RIGHTS. 

PRACTICALLY, THEREFORE, THE CREDITOR SUFFERS A LOSS THAT MAY BE, AS
IN THIS CASE, VERY SUBSTANTIAL.  CF. W.B. WORTHEN CO. V. KAVANAUGH, 295
U.S. 250. 

IN BANKRUPTCY PROCEEDINGS, GENERALLY, THE LAW GOVERNING THE VALIDITY
OF LIENS AND PROPERTY INTERESTS IS THE LAW OF THE LOCALITY IN WHICH THE
PROPERTY IS LOCATED.  SEE COX V. WALLACE, 219 FED. 126. 

CONGRESS HAS NO POWER UNDER THE BANKRUPTCY CLAUSE TO MODIFY OR IMPAIR
THE INTERESTS OF MORTGAGEES.  CONTINENTAL ILLINOIS BANK V. CHICAGO,
R.I. & P. RY., 294 U.S. 648. 

THE CREDITOR, BY THE OPERATION OF THIS ACT, HAS SUFFERED A CHANGE OF
POSITION TO HIS DETRIMENT; AND THE ESTATE OF THE DEBTOR HAS BEEN
ENLARGED THEREBY.  WHILE THE PROPERTY IS IN THE POSSESSION OF THE
DEBTOR UNDER THE SUPERVISION AND CONTROL OF THE COURT, THE NET AMOUNTS
RECEIVED BY THE CREDITOR THROUGH RENTAL WILL BE LESS THAN WHAT HE WOULD
RECEIVE WITH THE TRUSTEE IN POSSESSION; AND IN ADDITION TO THAT, SALE
IS DELAYED. 

SUBSECTION (S) IS SO ARBITRARY AND UNREASONABLE IN ITS OPERATION ON
THE VESTED RIGHTS OF CREDITORS AS TO VIOLATE THE DUE PROCESS CLAUSE OF
THE FIFTH AMENDMENT. 

IN THIS CASE, THE DEBTOR ESTIMATES THE VALUE OF HIS ASSETS AT
$2,882.50.  THE SAME SCHEDULE SHOWS DEBTS OF $6,559.50, A LARGE PART OF
WHICH IS OWED TO THESE RESPONDENTS.  THE RECORD FURTHER SHOWS THAT THIS
DEBTOR FIRST PETITIONED FOR RELIEF UNDER THE ORIGINAL FRAZIER-LEMKE
ACT, SINCE INVALIDATED, BY FILING A PETITION MARCH 29, 1935.  HIS
PETITION ASKED THAT PROCEEDINGS FOR FORECLOSURE BY APPELLEES BE STAYED,
WHICH, AS SHOWN BY THE RECORD, WAS DONE.  THE ORDER OF REFERENCE WAS
ENTERED MARCH 30, 1935, BUT IT WAS NOT UNTIL SEPTEMBER 27, 1935, THAT A
PROPOSAL WAS MADE TO THE CREDITORS.  THE ORIGINAL ACT HAVING BEEN
INVALIDATED AND A NEW LAW PASSED IN AUGUST, 1935, ON OCTOBER 8TH THIS
DEBTOR PETITIONED FOR FURTHER RELIEF, AND ON OCTOBER 12, 1935, THE
MATTER WAS AGAIN REFERRED TO THE CONCILIATION COMMISSIONER.  ON JANUARY
8, 1936, THE DISTRICT COURT ORDERED THE CASE TO BE DISMISSED ON THE
GROUNDS THAT SUBSECTION (S) WAS UNCONSTITUTIONAL, AND THENCE IT HAS
COME HERE ON WRIT OF CERTIORARI. 

SHOULD THE CONSTITUTIONALITY OF THIS LEGISLATION BE UPHELD, A FURTHER
ORDER WILL HAVE TO BE ENTERED STAYING FORECLOSURE PROCEEDINGS FOR A
PERIOD OF THREE YEARS, AND THIS WILL BE DONE IN SPITE OF THE FACT THAT
THE BANKRUPTCY SCHEDULE SHOWS NO POSSIBLE HOPE OF SOLVENCY AND CONTAINS
NO POSSIBLE BASIS FOR A FINANCIAL REHABILITATION, WHICH IS CLAIMED AS
THE GREAT OBJECTIVE OF THIS ACT.  FURTHERMORE, THERE WILL BE MORE THAN
ANOTHER YEAR BEFORE ANY RENTAL WILL BE PAID, AT WHICH TIME ADDITIONAL
TAXES WILL BE DUE, AND A STRONG PROBABILITY OF DIVERTING THE INCOME FOR
MAKING REPAIRS AS PROVIDED FOR IN THE ACT.  THE OPERATION OF THIS
LEGISLATION WILL POSTPONE ANY PAYMENT TO THE SECURED CREDITOR ALMOST
INDEFINITELY, WHEREAS UNDER THE LAW OF VIRGINIA THE TRUSTEE HAS AN
IMMEDIATE RIGHT OF POSSESSION, AND THE BENEFICIARY HAS AN ABSOLUTE AND
IMMEDIATE RIGHT TO DEMAND SALE OF THE PROPERTY FOR PAYMENT OF THE
DEBT. 

IF THE RULE LAID DOWN IN HOME BLDG. & LOAN ASSN. V. BLAISDELL, 290
U.S. 398, AND IN THE RADFORD CASE, 295 U.S. 555, IS CORRECTLY
UNDERSTOOD, IT CLEARLY ASSERTS THAT, WHILE THE MORTGAGEE IS DEBARRED
FROM ACTUAL POSSESSION, HE SHOULD HAVE IN RENTS THE EQUIVALENT IN VALUE
OF POSSESSION DURING THE EXTENDED PERIOD; ALSO HIS INTEREST SHOULD BE
CAREFULLY SAFEGUARDED. 

THE BANKRUPTCY COURT MAY SELL ENCUMBERED PROPERTY FREE OF LIENS, BUT
AS WAS OBSERVED IN THE RADFORD CASE, SUPRA, SUCH SALES ARE HELD WHEN IT
IS TO THE INTEREST OF OTHER CREDITORS, AND IT IS A SETTLED PRINCIPLE
THAT SALE OF ENCUMBERED PROPERTY WILL NOT BE ORDERED BY THE COURT IF
THE AMOUNT OF THE LIENS EXCEEDS THE VALUE OF THE PROPERTY. 

THE CONTENTION BASED UPON SECS. 77 AND 77B OF THE BANKRUPTCY ACT AND
CONTINENTAL ILLINOIS BANK V. CHICAGO, R.I. & P. RY., 294 U.S. 648, WAS
DISPOSED OF BY THIS COURT IN THE RADFORD CASE.  LARGE NUMBERS OF
CREDITORS MUST BE DEALT WITH AS A CLASS.  THESE SECTIONS OPERATE FOR
THE BEST INTEREST OF THE CREDITORS, AND UPON CONSENT OF A TWO-THIRDS
MAJORITY IN NUMBER AND AMOUNT.  THE RIGHTS OF SECURED CREDITORS, MAY
THUS BE MODIFIED OR SOMEWHAT RESTRICTED.  BUT SUBSECTION (S) OF SEC. 75
WORKS AGAINST THE CONSENT OF THE SECURED CREDITOR AND THE RESTRICTION
OF HIS RIGHTS IS AGAINST HIS WILL. 

IN A RAILROAD REORGANIZATION THE COURT IS CONCERNED WITH A PUBLIC
UTILITY, THE BONDS OF WHICH HAVE BEEN PURCHASED BY THE PUBLIC WITH FULL
KNOWLEDGE OF THE NATURE OF ITS BUSINESS AND THE NEED FOR UNINTERRUPTED
OPERATION IN THE PUBLIC INTEREST. 

THE BANKRUPTCY POWER OF CONGRESS IS LIMITED BY THE FIFTH AMENDMENT. 
RADFORD CASE, SUPRA. CONGRESS HAS NO POLICE POWER EXCEPT AS INCIDENTAL
TO THE EXERCISE OF SOME POWER DELEGATED IN THE CONSTITUTION.  HAMILTON
V. KENTUCKY DISTILLERIES, 251 U.S. 246. 

THE FRAZIER-LEMKE ACT IS NOT AN EXERCISE OF POLICE POWER NOR
INCIDENTAL TO THE BANKRUPTCY POWERS OF CONGRESS.  HOME BLDG. & LOAN
ASSN. V. BLAISDELL, 290 U.S. 398, DISTINGUISHED. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER SEC. 75, SUBSECTION (S), OF THE
BANKRUPTCY ACT, AS AMENDED BY THE NEW FRAZIER-LEMKE ACT, AUGUST 28,
1935, C. 792, 49 STAT. 943-945, IS CONSTITUTIONAL.  IN THIS CASE, THE
FEDERAL COURT FOR WESTERN VIRGINIA (SEE IN RE SHERMAN, 12 F.SUPP.  297)
AND THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT (85 F.(2D) 973)
HELD IT INVALID.  LIKE DECISIONS HAVE BEEN RENDERED IN OTHER CIRCUITS. 
LAFAYETTE LIFE INSURANCE CO. V. LOWMON, 79 F.(2D) 887(SEVENTH CIRCUIT);
UNITED STATES NATIONAL BANK OF OMAHA V. PAMP, 83 F.(2D) 493(EIGHTH
CIRCUIT).  IN THE FIFTH CIRCUIT THE LEGISLATION WAS SUSTAINED.  DALLAS
JOINT STOCK LAND BANK V. DAVIS, 83 F.(2D) 322.  BECAUSE OF THIS
CONFLICT AND THE IMPORTANCE OF THE QUESTION, WE GRANTED CERTIORARI. 
FN1 

WRIGHT, A VIRGINIA FARMER, GAVE IN 1929 A MORTGAGE DEED OF TRUST OF
HIS FARM TO SECURE A DEBT NOW HELD BY THE VINTON BRANCH OF THE MOUNTAIN
TRUST BANK.  IN MARCH, 1935, HE FILED A PETITION UNDER SEC. 75 OF THE
BANKRUPTCY ACT AS AMENDED JUNE 28, 1934, C. 869, 48 STAT. 1289.  WHEN
THE PROCEEDINGS WERE BEGUN, THE DEBT SECURED BY THE DEED OF TRUST HAD
MATURED AND WAS IN DEFAULT, AND THE TRUSTEE, AT THE REQUEST OF THE
BENEFICIARY, HAD ADVERTISED THE PROPERTY FOR SALE PURSUANT TO THE TERMS
OF THE DEED OF TRUST AND THE PROVISIONS OF THE VIRGINIA CODE.  THE
DEBTOR'S PETITION PRAYED, AMONG OTHER THINGS, "THAT ALL PROCEEDINGS
AGAINST HIM BY WAY OF PENDING AND ADVERTISED FORECLOSURES OF HIS
FARMING LANDS, OR BY OTHER METHODS CONTRARY TO THE PROVISIONS" OF THE
ACT BE STAYED.  THE PETITION, "APPEARING TO BE IN PROPER FORM AND TO
HAVE BEEN FILED IN GOOD FAITH," WAS REFERRED TO THE CONCILIATION
COMMISSIONER AS REQUIRED BY SEC. 75.  ON JULY 27, 1935, THE DEBTOR MADE
A PROPOSAL FOR COMPOSITION; BUT IT WAS NOT ACCEPTED BY THE MORTGAGE
CREDITOR.  ON OCTOBER 8, 1935, WRIGHT FILED AN AMENDED PETITION UNDER
SUBSECTION (S) OF SEC. 75 AS AMENDED BY THE NEW FRAZIER-LEMKE ACT; AND
ASKED TO BE ADJUDGED A BANKRUPT AND TO HAVE ALL THE BENEFITS OF THE
PROVISIONS OF SAID SUBSECTION (S) AS SO AMENDED AND APPROVED AUGUST 28,
1935. 

AN ORDER WAS ENTERED ADJUDGING WRIGHT A BANKRUPT AND AGAIN REFERRING
THE MATTER TO THE CONCILIATION COMMISSIONER.  THEREAFTER, THE VINTON
BRANCH OF THE MOUNTAIN TRUST BANK MOVED IN THE DISTRICT COURT THAT THE
PROCEEDINGS BEFORE THE COMMISSIONER BE TERMINATED AND "THAT THIS CASE
BE DISMISSED UPON THE GROUND THAT SUBSECTION (S) OF SAID ACT IS
UNCONSTITUTIONAL IN THAT IT DEPRIVES SAID CREDITOR OF ITS PROPERTY
WITHOUT DUE PROCESS OF LAW AND THAT THE DEBTOR IS NOT ENTITLED TO
PURSUE THE REMEDIES AND PRIVILEGES GRANTED THEREIN."  ON JANUARY 8,
1936, THAT MOTION WAS GRANTED; ALL PROCEEDINGS ON THE BANKRUPT'S
PETITION WERE TERMINATED; AND HIS PETITION WAS DISMISSED.  IT IS THAT
ORDER, AFFIRMED BY THE COURT OF APPEALS, WHICH IS HERE FOR REVIEW. 
BOTH OF THE LOWER COURTS HELD THAT, SINCE THE APPLICABLE RIGHTS OF A
MORTGAGEE IN KENTUCKY AND OF THE BENEFICIARY UNDER A MORTGAGE DEED OF
TRUST IN VIRGINIA ARE SUBSTANTIALLY THE SAME, OUR DECISION IN
LOUISVILLE JOINT STOCK LAND BANK V. RADFORD, 295 U.S. 555, REQUIRED
THAT SUBSECTION (S) BE HELD UNCONSTITUTIONAL. 

FIRST.  THE MORTGAGEE CLAIMS THAT THE LEGISLATION IS VOID ON ITS
FACE.  IT CHALLENGES THE POWER OF CONGRESS TO CONFER UPON COURTS
AUTHORITY TO GRANT TO A MORTGAGOR, UNDER ANY CIRCUMSTANCES, ANY OF THE
RELIEF PROVIDED FOR IN SUBSECTION (S) OF THE NEW FRAZIER-LEMKE ACT. 
THERE HAS BEEN NO ORDER GRANTING A STAY UNDER PARAGRAPH 2 OF SUBSECTION
(S).  BUT THE MOTION IS NOT PREMATURE; FOR THE FACT THAT NO STAY ORDER
HAS BEEN ENTERED DOES NOT IMPLY THAT AN ACTUAL CONSTITUTIONAL
CONTROVERSY IS NOT PRESENTED.  THE PETITIONER ASSERTS A RIGHT TO PURSUE
PROCEEDINGS PROVIDED BY A FEDERAL STATUTE, AND THAT RIGHT HAS BEEN
DENIED HIM ON GROUNDS OF THE ALLEGED INVALIDITY OF THE STATUTE.  BEFORE
THE MOTION TO DISMISS WAS MADE, THE DISTRICT COURT HAD ENTERED ITS
ORDER ADJUDGING PETITIONER A BANKRUPT, AND REFERRING THE MATTER TO THE
CONCILIATION COMMISSIONER FOR FURTHER PROCEEDINGS UNDER SEC. 75(S). 
THE ENTRY OF THE ORDER OF REFERENCE INITIATED PROCEEDINGS DESIGNED TO
MOVE, THROUGH THE APPOINTMENT OF APPRAISERS, THE APPRAISAL, AND THE
REFEREE'S ORDER RECOGNIZING THE DEBTOR'S RIGHT TO POSSESSION, TO THE
GRANT OF THE STAY BY THE COURT.  UNDER THE ACT NO FURTHER AFFIRMATIVE
ACTION BY PETITIONER PRECEDENT TO HIS OBTAINING THE STAY WAS
NECESSARY.  THE MORTGAGEE WAS NOT OBLIGED TO DELAY HIS CHALLENGE TO THE
VALIDITY OF THE STAY AND ITS ESSENTIAL INCIDENTS UNTIL THESE OFFICIALS
HAD COMPLIED WITH THE MANDATORY PROVISIONS OF THE ACT.  BUT WHILE WE
MUST DECIDE WHETHER THE CHALLENGED SUBSECTION IS CONSTITUTIONAL, WE
REFRAIN FROM DECIDING QUESTIONS SUGGESTED WHICH MAY ARISE LATER IN THE
COURSE OF ITS ADMINISTRATION. 

SECOND.  THE DECISION IN THE RADFORD CASE DID NOT QUESTION THE POWER
OF CONGRESS TO OFFER TO DISTRESSED FARMERS THE AID OF A MEANS OF
REHABILITATION UNDER THE BANKRUPTCY CLAUSE.  THE ORIGINAL FRAZIER-LEMKE
ACT WAS THERE HELD INVALID SOLELY ON THE GROUND THAT THE BANKRUPTCY
POWER OF CONGRESS, LIKE ITS OTHER GREAT POWERS, IS SUBJECT TO THE FIFTH
AMENDMENT; AND THAT, AS APPLIED TO MORTGAGES GIVEN BEFORE ITS
ENACTMENT, THE STATUTE VIOLATED THAT AMENDMENT, SINCE IT EFFECTED A
SUBSTANTIAL IMPAIRMENT OF THE MORTGAGEE'S SECURITY.  THE OPINION
ENUMERATES FIVE IMPORTANT SUBSTANTIVE RIGHTS IN SPECIFIC PROPERTY WHICH
HAD BEEN TAKEN.  IT WAS NOT HELD THAT THE DEPRIVATION OF ANY ONE OF
THESE RIGHTS WOULD HAVE RENDERED THE ACT INVALID, BUT THAT THE EFFECT
OF THE STATUTE IN ITS ENTIRETY WAS TO DEPRIVE THE MORTGAGEE OF HIS
PROPERTY WITHOUT DUE PROCESS OF LAW.  THE RIGHTS ENUMERATED WERE (PP.
594-595): 

"1.  THE RIGHT TO RETAIN THE LIEN UNTIL THE INDEBTEDNESS THEREBY
SECURED IS PAID. 

"2.  THE RIGHT TO REALIZE UPON THE SECURITY BY A JUDICIAL PUBLIC
SALE. 

"3.  THE RIGHT TO DETERMINE WHEN SUCH SALE SHALL BE HELD, SUBJECT
ONLY TO THE DISCRETION OF THE COURT. 

"4.  THE RIGHT TO PROTECT ITS INTEREST IN THE PROPERTY BY BIDDING AT
SUCH SALE WHENEVER HELD, AND THUS TO ASSURE HAVING THE MORTGAGED
PROPERTY DEVOTED PRIMARILY TO THE SATISFACTION OF THE DEBT, EITHER
THROUGH RECEIPT OF THE PROCEEDS OF A FAIR COMPETITIVE SALE OR BY TAKING
THE PROPERTY ITSELF. 

"5.  THE RIGHT TO CONTROL MEANWHILE THE PROPERTY DURING THE PERIOD OF
DEFAULT, SUBJECT ONLY TO THE DISCRETION OF THE COURT, AND TO HAVE THE
RENTS AND PROFITS COLLECTED BY A RECEIVER FOR THE SATISFACTION OF THE
DEBT."    IN DRAFTING THE NEW FRAZIER-LEMKE ACT, ITS FRAMERS SOUGHT TO
PRESERVE TO THE MORTGAGEE ALL OF THESE RIGHTS SO FAR AS ESSENTIAL TO
THE ENJOYMENT OF HIS SECURITY.  THE MEASURE RECEIVED CAREFUL
CONSIDERATION BEFORE THE COMMITTEES OF THE HOUSE AND THE SENATE. 
AMENDMENTS WERE MADE THERE WITH A VIEW TO ENSURING THE
CONSTITUTIONALITY OF THE LEGISLATION RECOMMENDED.  THE CONGRESS
CONCLUDED, AFTER FULL DISCUSSION, THAT THE BILL, AS ENACTED, WAS FREE
FROM THE OBJECTIONABLE FEATURES WHICH HAD BEEN HELD FATAL TO THE
ORIGINAL ACT. 

THIRD.  IT IS NOT DENIED THAT THE NEW ACT ADEQUATELY PRESERVES THREE
OF THE FIVE ABOVE ENUMERATED RIGHTS OF A MORTGAGEE.  "THE RIGHT TO
RETAIN THE LIEN UNTIL THE INDEBTEDNESS THEREBY SECURED IS PAID" IS
SPECIFICALLY COVERED BY THE PROVISIONS IN PARAGRAPH 1, THAT THE
DEBTOR'S POSSESSION, "UNDER THE SUPERVISION AND CONTROL OF THE COURT,"
SHALL BE "SUBJECT TO ALL EXISTING MORTGAGES, LIENS, PLEDGES, OR
ENCUMBRANCES," AND THAT: 

"ALL SUCH EXISTING MORTGAGES, LIENS, PLEDGES, OR ENCUMBRANCES SHALL
REMAIN IN FULL FORCE AND EFFECT, AND THE PROPERTY COVERED BY SUCH
MORTGAGES, LIENS, PLEDGES, OR ENCUMBRANCES SHALL BE SUBJECT TO THE
PAYMENT OF THE CLAIMS OF THE SECURED CREDITORS, AS THEIR INTERESTS MAY
APPEAR."  FN2 

"THE RIGHT TO REALIZE UPON THE SECURITY BY A JUDICIAL PUBLIC SALE" IS
COVERED BY THE PROVISION IN PARAGRAPH 3 THAT AT THE TERMINATION OF THE
STAY: 

"...  UPON REQUEST IN WRITING BY ANY SECURED CREDITOR OR CREDITORS,
THE COURT SHALL ORDER THE PROPERTY UPON WHICH SUCH SECURED CREDITORS
HAVE A LIEN TO BE SOLD AT PUBLIC AUCTION."  FN3 

THE NEW ACT DOES NOT IN TERMS PROVIDE FOR "THE RIGHT TO PROTECT ITS
(THE MORTGAGEE'S) INTEREST IN THE PROPERTY BY BIDDING AT SUCH SALE
WHENEVER HELD  ..."  BUT THE COMMITTEE REPORTS AND THE EXPLANATIONS
GIVEN IN CONGRESS MAKE IT PLAIN THAT THE MORTGAGEE WAS INTENDED TO HAVE
THIS RIGHT.  FN4  WE ACCEPT THIS VIEW OF THE STATUTE. 

FOURTH.  THE CLAIM THAT SUB-SECTION (S) IS UNCONSTITUTIONAL RESTS
MAINLY UPON THE CONTENTION THAT THE ACT DENIES TO A MORTGAGEE THE
"RIGHT TO DETERMINE WHEN SUCH SALE SHALL BE HELD, SUBJECT ONLY TO THE
DISCRETION OF THE COURT."  THE ASSERTION IS THAT THE NEW ACT IN EFFECT
GIVES TO THE MORTGAGOR THE ABSOLUTE RIGHT TO A THREE-YEAR STAY; AND
THAT A THREE-YEAR MORATORIUM CANNOT BE JUSTIFIED.  THE THREE-YEAR STAY
IS SPECIFIED IN THE FOLLOWING PROVISIONS: 

"WHEN THE CONDITIONS SET FORTH IN THIS SECTION (SEC. 75) HAVE BEEN
COMPLIED WITH, THE COURT SHALL STAY ALL JUDICIAL OR OFFICIAL
PROCEEDINGS IN ANY COURT, OR UNDER THE DIRECTION OF ANY OFFICIAL,
AGAINST THE DEBTOR OR ANY OF HIS PROPERTY, FOR A PERIOD OF THREE
YEARS."  (PAR. 2.) 

"AT THE END OF THREE YEARS, OR PRIOR THERETO, THE DEBTOR MAY PAY INTO
COURT THE AMOUNT OF THE APPRAISAL OF THE PROPERTY OF WHICH HE RETAINS
POSSESSION, INCLUDING THE AMOUNT OF ENCUMBRANCES ON HIS EXEMPTIONS, UP
TO THE AMOUNT OF THE APPRAISAL, LESS THE AMOUNT PAID ON PRINCIPAL." 
(PAR. 3.)  FN5 

WHETHER, IN VIEW OF THE EMERGENCY, AN ABSOLUTE STAY OF THREE YEARS
WOULD HAVE BEEN JUSTIFIED UNDER THE BANKRUPTCY POWER, WE HAVE NO
OCCASION TO DECIDE.  THERE ARE OTHER PROVISIONS IN THE STATUTE
AFFECTING THE MORTGAGOR'S RIGHT TO POSSESSION.  THEIR PHRASEOLOGY IS
LACKING IN CLARITY.  BUT WE ARE OF OPINION THAT, WHILE THE ACT AFFORDS
THE DEBTOR, ORDINARILY, A THREE-YEAR PERIOD OF REHABILITATION, THE STAY
PROVIDED FOR IS NOT AN ABSOLUTE ONE; AND THAT THE COURT MAY TERMINATE
THE STAY AND ORDER A SALE EARLIER.  IF WE WERE IN DOUBT AS TO THE
INTENTION OF CONGRESS, WE SHOULD STILL BE LED TO THAT CONSTRUCTION BY A
WELL SETTLED RULE:  "WHEN THE VALIDITY OF AN ACT OF THE CONGRESS IS
DRAWN IN QUESTION, AND EVEN 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. 

THE MORTGAGOR'S RIGHT TO RETAIN POSSESSION DURING THE STAY IS
SPECIFICALLY LIMITED BY PARAGRAPH 3, WHICH PROVIDES: 

"IF, HOWEVER, THE DEBTOR AT ANY TIME FAILS TO COMPLY WITH THE
PROVISIONS OF THIS SECTION, OR WITH ANY ORDERS OF THE COURT MADE
PURSUANT TO THIS SECTION, OR IS UNABLE TO REFINANCE HIMSELF WITHIN
THREE YEARS, THE COURT MAY ORDER THE APPOINTMENT OF A TRUSTEE, AND
ORDER THE PROPERTY SOLD OR OTHERWISE DISPOSED OF AS PROVIDED FOR IN
THIS ACT." 

THUS, FOR EXAMPLE, THE DEBTOR'S TENURE UNDER THE STAY IS SUBJECT TO
THE REQUIREMENT THAT HE PAY "A REASONABLE RENTAL SEMIANNUALLY FOR THAT
PART OF THE PROPERTY OF WHICH HE RETAINS POSSESSION."  UNDER THE LAST
QUOTED PROVISION OF PARAGRAPH 3, IF THE DEBTOR DEFAULTS IN THIS
OBLIGATION "AT ANY TIME," THE COURT MAY THEREUPON ORDER THE PROPERTY
SOLD.  LIKEWISE, THE PROPERTY WHILE IN THE DEBTOR'S POSSESSION IS KEPT,
ACCORDING TO PARAGRAPH 2, AT ALL TIMES "IN THE CUSTODY AND UNDER THE
SUPERVISION AND CONTROL OF THE COURT"; AND, ALSO UNDER PARAGRAPH 2: 

"THE COURT, IN ITS DISCRETION, IF IT DEEMS IT NECESSARY TO PROTECT
THE CREDITORS FROM LOSS BY THE ESTATE, AND/OR TO CONSERVE THE SECURITY,
...  MAY, IN ADDITION TO THE RENTAL, REQUIRE PAYMENTS ON THE PRINCIPAL
DUE AND OWING BY THE DEBTOR TO THE SECURED OR UNSECURED CREDITORS, AS
THEIR INTERESTS MAY APPEAR, IN ACCORDANCE WITH THE PROVISIONS OF THIS
ACT, AND MAY REQUIRE SUCH PAYMENTS TO BE MADE QUARTERLY, SEMIANNUALLY,
OR ANNUALLY, NOT INCONSISTENT WITH THE PROTECTION OF THE RIGHTS OF THE
CREDITORS AND THE DEBTOR'S ABILITY TO PAY, WITH A VIEW TO HIS FINANCIAL
REHABILITATION." 

PARAGRAPH 3 AUTHORIZES THE COURT TO HAVE THE PROPERTY SOLD IF "AT ANY
TIME" THE DEBTOR SHOULD FAIL TO COMPLY WITH ORDERS OF THE COURT ISSUED
UNDER ITS POWER TO REQUIRE INTERIM PAYMENTS ON PRINCIPAL, OR OTHERWISE
IN THE COURSE OF ITS "SUPERVISION AND CONTROL" OF HIS POSSESSION. 
PARAGRAPH 3 ALSO PROVIDES THAT "IF  ...  THE DEBTOR AT ANY TIME  ...
IS UNABLE TO REFINANCE HIMSELF WITHIN THREE YEARS," THE COURT MAY CLOSE
THE PROCEEDINGS BY SELLING THE PROPERTY.  THIS CLAUSE MUST BE
INTERPRETED AS MEANING THAT THE COURT MAY TERMINATE THE STAY IF AFTER A
REASONABLE TIME IT BECOMES EVIDENT THAT THERE IS NO REASONABLE HOPE
THAT THE DEBTOR CAN REHABILITATE HIMSELF WITHIN THE THREE-YEAR PERIOD. 
FN6  FINALLY, THE INTENTION OF CONGRESS TO MAKE THE STAY TERMINABLE BY
THE COURT WITHIN THE THREE YEARS IS SHOWN ALSO BY PARAGRAPH 6, WHICH
DECLARES THE ACT AN EMERGENCY MEASURE, AND PROVIDES THAT:  "IF IN THE
JUDGMENT OF THE COURT SUCH EMERGENCY CEASES TO EXIST IN ITS LOCALITY,
THEN THE COURT, IN ITS DISCRETION, MAY SHORTEN THE STAY OF PROCEEDINGS
HEREIN PROVIDED FOR AND PROCEED TO LIQUIDATE THE ESTATE."  FN7 

SINCE THE LANGUAGE OF THE ACT IS NOT FREE FROM DOUBT IN THE
PARTICULARS MENTIONED, WE ARE JUSTIFIED IN SEEKING ENLIGHTENMENT FROM
REPORTS OF CONGRESSIONAL COMMITTEES AND EXPLANATIONS GIVEN ON THE FLOOR
OF THE SENATE AND HOUSE BY THOSE IN CHARGE OF THE MEASURE.  FN8  WHEN
THE LEGISLATIVE HISTORY OF THE BILL IS THUS SURVEYED, IT BECOMES CLEAR
THAT TO CONSTRUE THE ACT OTHERWISE THAN AS GIVING THE COURTS BROAD
POWER TO CURTAIL THE STAY FOR THE PROTECTION OF THE MORTGAGEE WOULD BE
INCONSISTENT NOT ONLY WITH PROVISIONS OF THE ACT, BUT WITH THE
COMMITTEE REPORTS AND WITH THE EXPOSITION OF THE BILL MADE IN BOTH
HOUSES BY ITS AUTHORS AND THOSE IN CHARGE OF THE BILL AND ACCEPTED BY
THE CONGRESS WITHOUT DISSENT.  FN9  WE CONSTRUE IT AS GIVING THE COURTS
SUCH POWER. 

FIFTH.  IT IS URGED THAT SUBSECTION (S) IS UNCONSTITUTIONAL BECAUSE
THERE IS TAKEN FROM THE MORTGAGEE "THE RIGHT TO CONTROL MEANWHILE THE
PROPERTY DURING THE PERIOD OF DEFAULT, SUBJECT ONLY TO THE DISCRETION
OF THE COURT, AND TO HAVE THE RENTS AND PROFITS COLLECTED BY A RECEIVER
FOR THE SATISFACTION OF THE DEBT." 

(A)  THE ARGUMENT IS THAT POSSESSION BY THE MORTGAGOR DURING THE STAY
IS NECESSARILY LESS FAVORABLE TO THE MORTGAGEE THAN POSSESSION BY A
RECEIVER OR TRUSTEE WOULD BE.  THIS IS NOT TRUE.  THE MORTGAGOR IS IN
DEFAULT, BUT IT IS NOT THEREFORE TO BE ASSUMED THAT HE IS A WRONGDOER,
OR INCOMPETENT TO CONDUCT FARMING OPERATIONS.  THE LEGISLATION IS
DESIGNED TO AID VICTIMS OF THE GENERAL ECONOMIC DEPRESSION.  THE
MORTGAGOR IS FAMILIAR WITH THE PROPERTY, AND PRESUMABLY VITALLY
INTERESTED IN PRESERVING OWNERSHIP THEREOF AND READY TO EXERT HIMSELF
TO THE UTTERMOST TO THAT END.  IT IS NOT UNREASONABLE TO ASSUME THAT,
UNDER THESE CIRCUMSTANCES, THE INTERESTS OF ALL CONCERNED WILL BE
BETTER SERVED BY LEAVING HIM IN POSSESSION THAN BY INSTALLING A
DISINTERESTED RECEIVER OR TRUSTEE.  FOR THE MORTGAGOR HOLDS POSSESSION
CHARGED WITH OBLIGATIONS IMPOSED FOR THE BENEFIT OF THE MORTGAGEE AS
FULLY AS IF THE PROPERTY WERE IN THE POSSESSION OF A RECEIVER OR
TRUSTEE, AND THERE IS PROBABLY A SAVING OF EXPENSE.  IN ORDER TO
PROTECT THE CREDITOR'S INTERESTS, THE POSSESSION IS AT ALL TIMES
SUBJECT TO THE SUPERVISION AND CONTROL OF THE COURT; AND, IF THE
DEBTOR, "AT ANY TIME," FAILS TO COMPLY WITH ORDERS OF THE COURT ISSUED
IN THE EXERCISE OF ITS SUPERVISORY POWER TO PROTECT THE MORTGAGEE
AGAINST WASTE OR OTHER ABUSE OF HIS POSSESSION BY THE MORTGAGOR, THE
COURT MAY ORDER THE PROPERTY SOLD.  THE FARMER'S PROCEEDING IN
BANKRUPTCY FOR REHABILITATION, RESEMBLES THAT OF A CORPORATION FOR
REORGANIZATION.  AS TO THE LATTER IT IS EXPRESSLY PROVIDED THAT THE
DEBTOR MAY, TO SOME EXTENT, BE LEFT IN POSSESSION, U.S. CODE, TITLE 11,
SEC. 207(C); AND IT IS COMMON PRACTICE TO APPOINT AS RECEIVERS ONE OF
THE OFFICIALS OF THE CORPORATION. 

(B)  IT IS COMPLAINED THAT THE MORTGAGOR IS NOT REQUIRED TO PAY THE
FIRST INSTALMENT OF RENT UNTIL THE END OF ONE YEAR.  THE PHRASEOLOGY OF
THE APPLICABLE PROVISION IS NOT CLEAR.  PARAGRAPH 2 PROVIDES: 

"DURING SUCH THREE YEARS THE DEBTOR SHALL BE PERMITTED TO RETAIN
POSSESSION OF ALL OR ANY PART OF HIS PROPERTY, IN THE CUSTODY AND UNDER
THE SUPERVISION AND CONTROL OF THE COURT, PROVIDED HE PAYS A REASONABLE
RENTAL SEMIANNUALLY FOR THAT PART OF THE PROPERTY OF WHICH HE RETAINS
POSSESSION.  THE FIRST PAYMENT OF SUCH RENTAL SHALL BE MADE WITHIN ONE
YEAR OF THE DATE OF THE ORDER STAYING PROCEEDINGS, THE AMOUNT AND KIND
OF SUCH RENTAL TO BE THE USUAL CUSTOMARY RENTAL IN THE COMMUNITY WHERE
THE PROPERTY IS LOCATED, BASED UPON THE RENTAL VALUE, NET INCOME, AND
EARNING CAPACITY OF THE PROPERTY." 

THE CLAUSE PROVIDING THAT "THE FIRST PAYMENT OF SUCH RENTAL SHALL BE
MADE WITHIN ONE YEAR" IS OBVIOUSLY CAPABLE OF EITHER OF TWO
CONSTRUCTIONS.  ONE, THAT THE MORTGAGOR MAY NOT BE REQUIRED BY THE
COURT TO PAY BEFORE THE CLOSE OF THE YEAR.  THE OTHER, THAT THE COURT
MAY NOT POSTPONE THE PAYMENT BEYOND ONE YEAR.  IN VIEW OF THE
REQUIREMENT OF SEMI-ANNUAL RENTAL, THE LATTER SEEMS TO US MORE
REASONABLE.  WE INTIMATE NO OPINION AS TO THE VALIDITY OF THIS
PROVISION UNDER THE FIRST CONSTRUCTION.  AS HERE CONSTRUED, THE CLAUSE
CANNOT BE DEEMED ARBITRARY OR UNREASONABLE. 

(C)  THE DISPOSITION OF THE RENTAL REQUIRED TO BE MADE IS SAID TO
INVOLVE DENIAL OF THE MORTGAGEE'S RIGHTS.  PARAGRAPH 2 PROVIDES: 

"SUCH RENTAL SHALL BE PAID INTO COURT, TO BE USED, FIRST, FOR PAYMENT
OF TAXES AND UPKEEP OF THE PROPERTY, AND THE REMAINDER TO BE
DISTRIBUTED AMONG THE SECURED AND UNSECURED CREDITORS, AND APPLIED ON
THEIR CLAIMS, AS THEIR INTERESTS MAY APPEAR." 

IT IS SUGGESTED THAT PAYMENT OF TAXES AND KEEPING THE PROPERTY IN
REPAIR TAKES THE INCOME FROM THE MORTGAGEE, AND THAT THE MORTGAGOR
ALONE MAY BE BENEFITED THEREBY; THAT IF THE MORTGAGOR EXERCISES THE
OPTION TO PURCHASE THE PROPERTY AT ITS APPRAISED VALUE, HE WILL SECURE
THE PROPERTY FREE OF TAX LIENS WHICH OTHERWISE MIGHT HAVE ACCRUED
AGAINST IT.  BUT IT MUST BE ASSUMED THAT THE MORTGAGOR WILL NOT GET THE
PROPERTY FOR LESS THAN ITS ACTUAL VALUE.  THE ACT PROVIDES THAT UPON
THE CREDITOR'S REQUEST THE PROPERTY MUST BE REAPPRAISED, OR SOLD AT
PUBLIC AUCTION; AND THE MORTGAGEE MAY BY BIDDING AT SUCH SALE FULLY
PROTECT HIS INTEREST.  NON-PAYMENT OF TAXES MAY IMPERIL THE TITLE. 
PAYMENTS FOR UPKEEP ARE ESSENTIAL TO THE PRESERVATION OF THE PROPERTY. 
THESE PAYMENTS PRESCRIBED BY THE ACT ARE IN ACCORDANCE WITH THE COMMON
PRACTICE IN FORECLOSURE PROCEEDINGS WHERE THE PROPERTY IS IN THE HANDS
OF RECEIVERS.  FN10 

SIXTH.  IN SUPPORT OF THE CONTENTION THAT THE LEGISLATION IS
UNCONSTITUTIONAL, IT IS POINTED OUT THAT THE DELAY IN THE ENFORCEMENT
OF THE MORTGAGE UNDER SEC. 75 OF THE BANKRUPTCY ACT AS AMENDED BY SUB
CONSUMED IN THE EFFORT TO OBTAIN A COMPOSITION OR EXTENSION OF THE
DEBTOR'S OBLIGATIONS WITH THE CONSENT OF THE CREDITORS; THAT WHEN A
PETITION IS FILED PRAYING FOR THE RELIEF OUTLINED IN SUBSECTION (S) A
FURTHER PERIOD OF MONTHS MAY BE CONSUMED IN HAVING THE PROPERTY
APPRAISED AND PUTTING THE DEBTOR IN THE POSITION WHICH HE MUST OCCUPY
BEFORE THE STAY IS GRANTED; THAT "FOUR MONTHS FROM THE DATE THAT THE
REFEREE APPROVES THE APPRAISAL" IS GIVEN WITHIN WHICH "EITHER PARTY MAY
FILE OBJECTIONS, EXCEPTIONS, AND TAKE APPEALS" FROM THE APPRAISAL; AND
THAT UPON A SALE OF THE PROPERTY UNDER PARAGRAPH 3: 

"THE DEBTOR SHALL HAVE NINETY DAYS TO REDEEM ANY PROPERTY SOLD AT
SUCH SALE, BY PAYING THE AMOUNT FOR WHICH ANY SUCH PROPERTY WAS SOLD,
TOGETHER WITH 5 PER CENTUM PER ANNUM INTEREST, INTO COURT  ..."  IT IS
POINTED OUT, ALSO, THAT THE MORTGAGE HERE IN QUESTION IS IN THE FORM OF
A DEED OF TRUST.  FN11  IT IS CLAIMED THAT THE RIGHTS TO ENFORCE
PAYMENT BY SALE OF THE MORTGAGE PROPERTY, CONFERRED BY THE LAW OF
VIRGINIA UPON THE CREDITOR UNDER SUCH A DEED, ARE MORE PEREMPTORY THAN
THOSE UNDER THE LAW OF KENTUCKY DISCUSSED IN THE RADFORD CASE.  FN12
AND IT IS URGED THAT THE LIMITATIONS HERE PLACED UPON THE ENFORCEMENT
OF THE MORTGAGE ARE NOT MERELY A MODIFICATION OF THE REMEDY RECOGNIZED
AS PERMISSIBLE.  COMPARE HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290
U.S. 398, 434.    BUT THE QUESTION HERE INVOLVED IS NOT ONE OF STATE
ACTION UNDER THE POLICE POWER ALLEGED TO VIOLATE THE CONTRACT CLAUSE. 
THE POWER HERE EXERTED BY CONGRESS IS THE BROAD POWER "TO ESTABLISH ...
UNIFORM LAWS ON THE SUBJECT OF BANKRUPTCIES THROUGHOUT THE UNITED
STATES."  THE QUESTION WHICH THE OBJECTIONS RAISE IS NOT WHETHER THE
ACT DOES MORE THAN MODIFY REMEDIAL RIGHTS.  IT IS WHETHER THE
LEGISLATION MODIFIES THE SECURED CREDITOR'S RIGHTS, REMEDIAL OR
SUBSTANTIVE, TO SUCH AN EXTENT AS TO DENY THE DUE PROCESS OF LAW
GUARANTEED BY THE FIFTH AMENDMENT.  A COURT OF BANKRUPTCY MAY AFFECT
THE INTERESTS OF LIEN HOLDERS IN MANY WAYS.  TO CARRY OUT THE PURPOSES
OF THE BANKRUPTCY ACT, IT MAY DIRECT THAT ALL LIENS UPON PROPERTY
FORMING PART OF A BANKRUPT'S ESTATE BE MARSHALLED; OR THAT THE PROPERTY
BE SOLD FREE OF ENCUMBRANCES AND THE RIGHTS OF ALL LIEN HOLDERS BE
TRANSFERRED TO THE PROCEEDS OF THE SALE.  VAN HUFFEL V. HARKELRODE, 284
U.S. 225, 227.  DESPITE THE PEREMPTORY TERMS OF A PLEDGE, IT MAY ENJOIN
SALE OF THE COLLATERAL, IF IT FINDS THAT THE SALE WOULD HINDER OR DELAY
PREPARATION OR CONSUMMATION OF A PLAN OF REORGANIZATION.  CONTINENTAL
ILLINOIS NATIONAL BANK & TRUST CO. V. CHICAGO, R.I. & P. RY. CO., 294
U.S. 648, 680-681.  IT MAY ENJOIN LIKE ACTION BY A MORTGAGEE WHICH
WOULD DEFEAT THE PURPOSE OF SUBSECTION (S) TO EFFECT REHABILITATION OF
THE FARMER MORTGAGOR.  FOR THE REASONS STATED, WE ARE OF OPINION THAT
THE PROVISIONS OF SUBSECTION (S) MAKE NO UNREASONABLE MODIFICATION OF
THE MORTGAGEE'S RIGHTS; AND HENCE ARE VALID.  REVERSED. 

FN1  SEE ALSO STEVERSON V. CLARK, 86 F.(2D) 330, AND KNOTTS V. FIRST
CAROLINAS JOINT STOCK LAND BANK, ID., 551(FOURTH CIRCUIT), APPLYING THE
DECISION IN THE INSTANT CASE; MCWILLIAMS V. BLACKARD, ID., 328, AND
PHOENIX JOINT STOCK LAND BANK V. LEDWIDGE, ID., 355(EIGHTH CIRCUIT),
APPLYING THE DECISION IN UNITED STATES NATIONAL BANK OF OMAHA V. PAMP,
SUPRA; AND SCHAUER V. PRODUCERS WOOL & MOHAIR CO., ID., 576(FIFTH
CIRCUIT), APPLYING THE DECISION IN DALLAS JOINT STOCK LAND BANK V.
DAVIS, SUPRA.  THE CASES IN THE DISTRICT COURTS ARE ALSO CONFLICTING. 
THE LEGISLATION WAS SUSTAINED IN IN RE SLAUGHTER, 12 F.SUPP.  206(N.D.
TEX.); IN RE REICHERT, 13 ID., 1(W.D. KY.); IN RE COLE, ID., 283(S.D.
OHIO); IN RE BENNETT, ID., 353(W.D. MO.); AND IN RE CHILTON, 16 ID.
14(D. COLO.).  COMPARE IN RE PAUL, 13 ID. 645(S.D. IOWA); IN RE
SLAUGHTER, ID., 893(N.D. TEX.).  IT WAS HELD INVALID IN IN RE YOUNG, 12
F.SUPP.  30(S.D. ILL.); IN RE LINDSAY, ID., 625(N.D. IOWA); IN RE
WEISE, ID., 871(W.D.N.Y.); IN RE DAVIS, 13 ID. 221(E.D.N.Y.); IN RE
DILLER, ID., 249(S.D. CAL.); IN RE TSCHOEPE, ID., 371(S.D. TEX.); IN RE
SCHOENLEBER, ID., 375(D. NEB.); IN RE WOGSTAD, 14 ID. 72(D. WYO.); AND
IN RE MAYNARD, 15 ID. 809(D. IDAHO).  COMPARE IN RE SHONKWILER, 17
F.SUPP.  697, 699(E.D. ILL.). 

FN2  AMENDMENTS TO THE BILL SUBSEQUENT TO ITS INTRODUCTION PLAINLY
DEMONSTRATE CAREFUL INTENTION TO LEAVE THE LIEN WHOLLY UNIMPAIRED.  AS
INTRODUCED, THE MEASURE PROVIDED FOR RETENTION OF THE LIEN 'UP TO THE
ACTUAL VALUE OF SUCH PROPERTY, AS FIXED BY THE APPRAISALS PROVIDED FOR
IN THIS SECTION,' S. 3002, SEC. 6, P. 6(COMPARE ACT OF JUNE 28, 1934,
C. 869, SUBSEC.  (S), (2), 48 STAT. 1290); AND THERE WAS NO PROVISION
FOR A PUBLIC SALE AT THE REQUEST OF THE SECURED CREDITOR.  AS REPORTED
OUT OF THE SENATE COMMITTEE ON THE JUDICIARY, AND AS SUBSEQUENTLY
ENACTED, THE MEASURE PROVIDED FOR RETENTION OF THE LIEN UNQUALIFIED BY
REFERENCE TO THE APPRAISAL VALUE OF THE PROPERTY.  SEE S. 3002, AS
REPORTED, SEC. 6, P. 6; SEN. REP. NO. 985, 74TH CONG., 1ST SESS., P.
3.  AS REPORTED BY THE COMMITTEE, THE BILL PROVIDED FOR A PUBLIC SALE
IN THE DISCRETION OF THE COURT, UPON REQUEST OF THE SECURED CREDITOR,
AND LIMITED THE LIENHOLDER'S BID AT SUCH SALE TO 'THE APPRAISED VALUE
OR THE ORIGINAL PRINCIPAL, WHICHEVER IS THE HIGHER.'  S. 3002, SUPRA,
SEC. 6, P. 9; SEN. REP. NO. 985, SUPRA, PP. 4, 6.  SINCE THE LATTER
QUALIFICATION WAS THOUGHT TO RAISE SOME CONSTITUTIONAL DOUBT, IT WAS
ELIMINATED DURING THE SENATE'S CONSIDERATION OF THE MEASURE.  SEE
STATEMENTS OF SENATORS ASHURST AND BORAH, OF THE COMMITTEE ON THE
JUDICIARY, AND OF SENATOR FRAZIER, 79 CONG. REC. 13413, 13633, 13634,
13641.  THE HOUSE COMMITTEE ON THE JUDICIARY REPORTED THE BILL WITH
THIS CHANGE.  H.R. REP. NO. 1808, 74TH CONG., 1ST SESS., PP. 1, 4, 6. 

FN3  AS INTRODUCED, S. 3002 CONTAINED THE PROVISION OF THE ACT BY
WHICH THE MORTGAGOR MIGHT PURCHASE AT THE APPRAISED VALUE, SUBJECT TO
THE MORTGAGEE'S RIGHT TO REQUIRE A RE-APPRAISAL; BUT IT DID NOT PROVIDE
THAT THE MORTGAGEE MIGHT, IN LIEU OF A RE-APPRAISAL, HAVE A PUBLIC
SALE.  THE BILL AS REPORTED BY THE SENATE COMMITTEE ON THE JUDICIARY
INSERTED AFTER THE PROVISION FOR APPRAISAL A CLAUSE PROVIDING, "THAT
UPON REQUEST IN WRITING BY ANY SECURED CREDITOR OR CREDITORS, THE
COURT, IN ITS DISCRETION, IF IT DEEMS IT FOR THE BEST INTERESTS OF THE
SECURED CREDITORS AND DEBTOR, MAY ORDER THE PROPERTY UPON WHICH SUCH
SECURED CREDITORS HAVE A LIEN, TO BE SOLD AT PUBLIC AUCTION;..."  S.
3002, AS REPORTED, SEC. 6, P. 9; SEE SEN. REP. NO. 985, 74TH CONG., 1ST
SESS., P. 4.  "TO REMOVE A QUESTION AS TO THE CONSTITUTIONALITY OF THE
BILL," THIS PROVISION WAS ALTERED IN THE COURSE OF THE BILL'S PASSAGE
THROUGH THE HOUSE TO DEPRIVE THE COURT OF DISCRETION IN THE MATTER AND
TO GIVE THE SECURED CREDITOR AN UNQUALIFIED RIGHT TO A PUBLIC SALE AS
THE ALTERNATIVE TO A TRANSFER OF THE PROPERTY TO THE DEBTOR AT THE RE
APPRAISED VALUE.  SEE REMARKS OF REPRESENTATIVE SUMNERS, OF THE HOUSE
COMMITTEE ON THE JUDICIARY, 79 CONG. REC. 14332-33. 

FN4  AS REPORTED BY THE SENATE COMMITTEE ON THE JUDICIARY, S. 3002,
SEC. 6, P. 9, RECOGNIZED A RIGHT IN THE MORTGAGEE TO BID AT THE SALE
NOT IN EXCESS "OF THE APPRAISED VALUE OR THE ORIGINAL PRINCIPAL,
WHICHEVER IS THE HIGHER."  SEE SEN. REP. NO. 985, 74TH CONG., 1ST
SESS., PP. 4, 6.  IN STRIKING OUT THIS QUALIFICATION FOR THE EXPRESS
PURPOSE OF AVOIDING A CONSTITUTIONAL DOUBT, SENATORS RESPONSIBLE FOR
THE MEASURE PLAINLY SHOWED THAT THEY HAD NO INTENTION OF RAISING A
FURTHER CONSTITUTIONAL CONTROVERSY BY QUESTIONING THE MORTGAGEE'S
UNQUALIFIED RIGHT TO BID.  SEE STATEMENTS OF SENATORS ASHURST, BORAH,
AND FRAZIER, 79 CONG. REC. 13413, 13633, 13634, 13641-42.  H.R. REP.
NO. 1808, 74TH CONG., 1ST SESS., PP. 1, 5-6, UNEQUIVOCALLY DECLARED
THAT UNDER THE ACT THE SECURED CREDITORS HAVE THE RIGHT TO BID AT THE
SALE; AND THIS WAS MADE CLEAR ON THE FLOOR OF THE HOUSE BY
REPRESENTATIVE SUMNERS, OF THE COMMITTEE ON THE JUDICIARY.  SEE 79
CONG. REC. 14333. 

THE BENEFICIARY UNDER A MORTGAGE DEED OF TRUST IN VIRGINIA IS
PERMITTED TO BID IN THE PROPERTY AT THE SALE.  SEE, E.G., ASHWORTH V.
TRAMWELL, 102 VA. 852, 858, 47 S.E. 1011; TITLE INSURANCE CO. V.
INDUSTRIAL BANK, 156 VA. 322, 327, 157 S.E. 710; EVERETTE V. WOODWARD,
162 VA. 419, 174 S.E. 864.  COMPARE EASTON V. GERMAN-AMERICAN BANK, 127
U.S. 532, 538. 

FN5  THIS CLAUSE IS QUALIFIED BY ALTERNATIVE PROVISOS, ONE FOR
PAYMENT AT A REAPPRAISED VALUE, THE OTHER FOR A PUBLIC SALE TO BE HELD
UPON THE MORTGAGEE'S REQUEST AT THE TIME WHEN THE STAY EXPIRES, WHETHER
BY LAPSE OF TIME OR BY THE MORTGAGOR'S PAYMENT INTO COURT OF THE
APPRAISED OR REAPPRAISED VALUE.  SEE NOTE 3, SUPRA. 

FN6  THIS CONSTRUCTION IS IN HARMONY WITH THE REQUIREMENT OF GOOD
FAITH IN THE INITIATION OF PROCEEDINGS UNDER SEC. 75.  RELIEF UNDER
SEC. 75(S) MAY BE OBTAINED ONLY BY ONE WHO HAS MADE A BONA FIDE
ATTEMPT, AND HAS FAILED, TO EFFECT A COMPOSITION UNDER SEC. 75, (A)
(R).  THE OFFER OF COMPOSITION MUST BE IN GOOD FAITH, (SEC. 75, (C),
(I), 47 STAT. 1471, 1472), AND IF THE DEBTOR IS BEYOND ALL REASONABLE
HOPE OF FINANCIAL REHABILITATION, AND THE PROCEEDINGS UNDER SEC. 75
CANNOT BE EXPECTED TO HAVE ANY EFFECT BEYOND POSTPONING INEVITABLE
LIQUIDATION, THE PROCEEDINGS WILL BE HALTED AT THE OUTSET.  THE
PRACTICAL ADMINISTRATION OF SEC. 75 IN THE LOWER COURTS ALREADY AFFORDS
AMPLE EVIDENCE OF THE SUBSTANTIAL PROTECTION AFFORDED THE CREDITOR BY
THIS REQUIREMENT OF GOOD FAITH IN THE INITIATION OF PROCEEDINGS UNDER
SUBSECTIONS (A)-(R).  SEE IN RE BORGELT, 79 F.(2D) 929; DALLAS JOINT
STOCK LAND BANK V. DAVIS, 83 ID. 322, 323; STEVENSON V. CLARK, 86 ID.
330; KNOTTS V. FIRST CAROLINAS JOINT STOCK LAND BANK, ID. 551; IN RE
REICHERT, 13 F.SUPP.  1, 4, 5; IN RE PAUL, ID., 645, 647; IN RE
BUXTON'S ESTATE, 14 ID. 616; IN RE VATER, ID., 631; IN RE SCHAEFFER,
ID., 807; IN RE DUVALL, ID., 799; IN RE BYRD, 15 ID. 453; IN RE WYLIE,
16 ID. 193, 194; IN RE PRICE, ID., 836, 837.  COMPARE IN RE CHILTON, 16
F.SUPP.  14, 17; IN RE DAVIS, ID., 960.  IT MUST BE ASSUMED THAT THE
SITUATION OF THE PRESENT DEBTOR WAS NOT BEYOND ALL REASONABLE HOPE OF
REHABILITATION, ELSE HE COULD NOT HAVE QUALIFIED TO FILE HIS PETITION
AT THE OUTSET.  COMPARE TENNESSEE PUBLISHING CO. V. AMERICAN NATIONAL
BANK, 299 U.S. 18, 22. 

FN7  THIS PROVISION IS NOT INCONSISTENT WITH THE CONSTITUTIONAL
REQUIREMENT THAT LAWS ESTABLISHED BY CONGRESS ON THE SUBJECT OF
BANKRUPTCIES SHALL BE UNIFORM THROUGHOUT THE UNITED STATES.  ART. 1,
SEC. 8, CL. 4.  THE PROBLEM DEALT WITH MAY PRESENT SIGNIFICANT
VARIATIONS IN DIFFERENT PARTS OF THE COUNTRY.  BY PARAGRAPH 6 THE
BANKRUPTCY ACT ADJUSTS ITS OPERATION TO THESE VARIATIONS, AS UNDER
OTHER PROVISIONS IT HAS ADJUSTED ITS OPERATION TO THE DIFFERING LAWS OF
THE SEVERAL STATES AFFECTING DOWER, EXEMPTIONS, AND OTHER PROPERTY
RIGHTS.  COMPARE HANOVER NATIONAL BANK V. MOYSES, 186 U.S. 181, 189;
STELLWAGEN V. CLUM, 245 U.S. 605, 613.  THE AUTHORITY GRANTED BY
PARAGRAPH 6 DOES NOT EXCEED LIMITS OF AUTHORITY FAMILIARLY EXERCISED BY
COURTS.  SEE STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 69; COMPARE
CHASTLETON CORP. V. SINCLAIR, 264 U.S. 543. 

FN8  WHERE THE MEANING OF LEGISLATION IS DOUBTFUL OR OBSCURE, RESORT
MAY BE HAD IN ITS INTERPRETATION TO REPORTS OF CONGRESSIONAL COMMITTEES
WHICH HAVE CONSIDERED THE MEASURE, (MCLEAN V. UNITED STATES, 226 U.S.
374, 380; TAGG BROS. & MOORHEAD V. UNITED STATES, 280 U.S. 420, 435);
TO EXPOSITION OF THE BILL ON THE FLOOR OF CONGRESS BY THOSE IN CHARGE
OF OR SPONSORING THE LEGISLATION, (DUPLEX PRINTING PRESS CO. V.
DEERING, 254 U.S. 443, 475; RICHBOURG MOTOR CO. V. UNITED STATES, 281
U.S. 528, 536); TO COMPARISON OF SUCCESSIVE DRAFTS OR AMENDMENTS OF THE
MEASURE, (UNITED STATES V. PFITSCH, 256 U.S. 547, 551; UNITED STATES V.
GREAT NORTHERN RY. CO., 287 U.S. 144, 155); AND TO THE DEBATES IN
GENERAL IN ORDER TO SHOW COMMON AGREEMENT ON PURPOSE AS DISTINGUISHED
FROM INTERPRETATION OF PARTICULAR PHRASEOLOGY, (FEDERAL TRADE COMM'N V.
RALADAM CO., 283 U.S. 643, 650; HUMPHREY'S EXECUTOR V. UNITED STATES,
295 U.S. 602, 625). 

FN9  EMPHASIS UPON THE DELIBERATE INTENTION TO MEET THE
CONSTITUTIONAL OBJECTIONS RAISED IN LOUISVILLE JOINT STOCK LAND BANK V.
RADFORD, 295 U.S. 555, DOMINATED THE CONSIDERATION OF THE BILL IN ALL
STAGES.  SEE E.G., SEN. REP. NO. 985, 74TH CONG., 1ST SESS., PP. 1, 3;
H.R. REP. NO. 1808, ID., PP. 1, 3; STATEMENTS OF SENATOR MCCARRAN, 79
CONG. REC. 11971; SENATOR ASHURST, IBID.; SENATOR BORAH, ID., 13411,
13632, 13642; REPRESENTATIVE LEMKE, ID., 14331, 14332; AND
REPRESENTATIVE SUMNERS, ID., 14333.  THERE WAS NO DISSENT ON
CONSTITUTIONAL GROUNDS APART FROM THE DOUBTS WHICH WERE DISPOSED OF AS
DESCRIBED IN NOTES 2, 3, AND 4, SUPRA.  COMPARING THE PRESENT MEASURE
WITH THE FORMER SEC. 75(S), SEN. REP. NO. 985, 74TH CONG., 1ST SESS.,
P. 5, POINTED OUT THAT "THE AMENDED SUBSECTION (S) SHORTENS THE TIME OF
THE STAY OF PROCEEDINGS FROM 5 TO 3 YEARS, AND  ...  GIVES THE COURT
POWER TO SHORTEN THAT STAY.  IT GIVES THE COURT COMPLETE JURISDICTION
AND CUSTODY OF THE PROPERTY, WITH AUTHORITY TO FIX THE RENTAL ANNUALLY,
AND TO SELL PERISHABLE PROPERTY AND PERSONAL PROPERTY THAT IS NOT
NECESSARY FOR THE DEBTOR'S FARMING OPERATIONS.  IT WILL ALSO BE NOTICED
THAT THE COURT CAN REQUIRE PAYMENTS OVER AND ABOVE THE RENTAL VALUE. 
IN OTHER WORDS, IN THE AMENDED SUBSECTION (S), THE PROPERTY IS
VIRTUALLY IN THE COMPLETE CUSTODY AND CONTROL OF THE COURT, FOR ALL
PURPOSES OF LIQUIDATION...."  LIKEWISE, IT WAS SAID IN H.R. REP. NO.
1808, 74TH CONG., 1ST SESS., P. 5, THAT "THE NEW SUBSECTION (S)
SHORTENS THE TIME OF THE STAY OF PROCEEDINGS FROM 5 TO 3 YEARS, AND IN
ADDITION GIVES THE COURT POWER TO SHORTEN THAT PERIOD....  UNDER THE
NEW SUBSECTION (S) THE PROPERTY OF THE BANKRUPT IS IN THE COMPLETE
CUSTODY AND CONTROL OF THE COURT, FOR ALL THE PURPOSES OF
LIQUIDATION."  AND AT P. 6:  "THE SUPREME COURT INTIMATED THAT IN THE
ORIGINAL SUBSECTION, THE DISTRICT COURT DID NOT HAVE SUFFICIENT
DISCRETION.  IN THIS SUBSECTION, THE DISTRICT COURT IS GIVEN COMPLETE
CONTROL AND DISCRETION." 

DISCUSSION OF THE BILL IN THE SENATE IS REPORTED IN 79 CONG. REC.
11970-71, 13348-49, 13411-13, 13632-45. 

IN THE SENATE DISCUSSION THERE OCCURRED THE FOLLOWING (79 CONG. REC.
13633): 

"MR. BORAH.  THE COURT IS GIVEN POWER IN THE BILL TO MAKE SALE OF THE
PROPERTY WHENEVER THE COURT DEEMS IT IN THE INTEREST OF ALL PARTIES TO
DO SO. 

"MR. HASTINGS.  DURING THE 3 YEARS? 

"MR. BORAH.  YES.  IN THE CASE OF PERISHABLE PROPERTY, OR PROPERTY
WHICH IS NOT BRINGING IN ANY INCOME, OR ANYTHING OF THAT KIND, THE
COURT HAS POWER TO MAKE SALE OF IT. 

     .         .         .  .         . 

"MR. FRAZIER.  THE BILL GIVES THE COURT AUTHORITY TO SELL THE
PROPERTY, IF IT DEEMS IT ADVISABLE, AT ANY TIME.  THE COURT MAY SELL
ANY PART OF IT OR ALL OF IT AT ANY TIME BEFORE OR DURING OR AFTER THE 3
YEARS." 

DISCUSSION OF THE BILL IN THE HOUSE IS REPORTED IN 79 CONG. REC.
13831, 14331-34.  PRESENTING THE BILL, AS REPORTED FROM COMMITTEE,
REPRESENTATIVE LLOYD EXPLAINED:  "WE HAVE IN NO WAY REDUCED THE
SECURITY OF THE MORTGAGEE.  WE HAVE LEFT HIS SECURITY INTACT, BUT WE
HAVE MADE IT POSSIBLE FOR THE BANKRUPTCY COURT TO RETAIN JURISDICTION
FOR A PERIOD NOT TO EXCEED 3 YEARS."  79 CONG. REC. 13831.    THERE
ALSO OCCURRED IN THE HOUSE THE FOLLOWING (79 CONG. REC. 14332): 

"MR. FORD OF CALIFORNIA.  IS IT NOT DESIGNED TO GIVE TO THE FARMER A
BREATHING SPELL SO THAT HE MAY ORIENT HIMSELF IN SUCH A WAY AS TO GET
OUT OF HIS PRESENT DIFFICULTIES WITHOUT IN THE LEAST JEOPARDIZING THE
LIEN OF HIS CREDITORS? 

"MR. LEMKE.  ABSOLUTELY, AND THE DISTRICT JUDGE HAS COMPLETE CONTROL
ALL THE TIME OF THE FARMER'S PROPERTY. 

     . .         .         .         . 

"MR. ANDRESEN.  ALL IT DOES IS TO GIVE A 3-YEAR EXTENSION FOR THE
TIME OF THE REDEMPTION IF THE COURT SO DIRECTS. 

"MR. LEMKE.  UNDER THE SUPERVISION AND CONTROL OF THE COURT." 

DESPITE SOME APPARENT SIMILARITY OF LANGUAGE, THE REMARKS QUOTED FROM
THE DISCUSSION IN THE SENATE DO NOT SEEM TO HAVE BEEN ADDRESSED TO THE
SECOND PROVISO OF PARAGRAPH 3 AS IT THEN STOOD, BUT TO HAVE BEEN
INTENDED MORE GENERALLY, EXPRESSING THE PLAN EMBODIED IN THE LAST
SENTENCE OF PARAGRAPH 3.  SEE S. 3002, AS REPORTED FROM COMMITTEE, SEC.
6, P. 9. 

FN10  SEE SHEPHERD V. PEPPER, 133 U.S. 626, 652; THOMPSON V. PHENIX
INSURANCE CO., 136 U.S. 287, 293; CAKE V. MOHUN, 164 U.S. 311, 316; 1
CLARK, LAW AND PRACTICE OF RECEIVERS (2D ED. 1929) SEC. 670; HIGH, LAW
OF RECEIVERS (4TH ED. 1910) SEC. 643; 1 WILTSIE, MORTGAGE FORECLOSURE
(4TH ED. 1927) SEC. 616.  COMPARE ATLANTIC TRUST CO. V. CHAPMAN, 208
U.S. 360, 371. 

FN11  SEE FRANKLIN PLANT FARM V. NASH, 118 VA. 98, 111, 86 S.E. 836,
840; DILLARD V. SERPELL, 138 VA. 694, 697, 123 S.E. 343; 3 JONES, LAW
OF MORTGAGES (8TH ED. REV. 1928) SECS. 1742, 2276. 

FN12  SEE CODE OF VA., 1918(MICHIE 1924) SEC. 5167, AS AMENDED, ACTS,
1926, C. 324, SUBSECS.  (1)-(6), (13); IN RE SHERMAN, 12 F.SUPP.  297,
298-299; COMPARE HOGAN V. DUKE, 20 GRATT.  244, 256, 259; MULLER'S
ADMINISTRATOR V. STONE, 84 VA. 834, 837, 6 S.E. 223; HUDSON V. BARHAM,
101 VA. 63, 67, 68, 43 S.E. 189.  SEE ALSO ASHWORTH V. TRAMWELL, 102
VA. 852, 858, 47 S.E. 1011; PETERSON V. HAYNES, 145 VA. 653, 661, 134
S.E. 675; NEFF'S ADMINISTRATOR V. NEWMAN, 150 VA. 203, 210, 142 S.E.
389. 
..END :
























A., T. & S.F. RY. V. SCARLETT, 300 U.S. 471 


NO. 505.  ARGUED MARCH 3, 1937.  - DECIDED MARCH 29, 1937.  - 7 CAL.(2D)
181 - 60 P.(2D) 462, REVERSED. 


1.  A REGULATION PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION IN
PURSUANCE OF CONSTITUTIONAL STATUTORY AUTHORITY, HAS THE SAME FORCE AS
THOUGH PRESCRIBED IN TERMS BY THE STATUTE.  P. 474. 

2.  IN AN ACTION UNDER THE FEDERAL SAFETY APPLIANCE ACT AGAINST A
RAILROAD COMPANY TO RECOVER DAMAGES FOR PERSONAL INJURIES RESULTING
FROM AN ALLEGED VIOLATION OF THE ACT, THE JUDGMENT OF THE TRIAL COURT
AND JURY CANNOT BE SUBSTITUTED FOR THAT OF THE INTERSTATE COMMERCE
COMMISSION ON THE QUESTION AS TO WHAT CONSTITUTES COMPLIANCE WITH ITS
REGULATIONS.  P. 474. 

3.  THE FEDERAL SAFETY APPLIANCE ACT PROVIDES THAT CARS REQUIRING
"SECURE" LADDERS SHALL BE SO EQUIPPED.  AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION, ISSUED PURSUANT TO THE ACT, REQUIRES SUCH LADDERS
TO HAVE A MINIMUM CLEARANCE OF TREADS OF "TWO, PREFERABLY TWO AND ONE
HALF INCHES."  HELD: 

(1)  A SIDE LADDER OF A FREIGHT CAR COMPLIED WITH THE ACT, THOUGH
BETWEEN IT AND THE SIDE OF THE CAR WAS A DIAGONAL BRACE ROD, WHICH THE
LADDER CLEARED BY TWO AND THREE-QUARTER INCHES.  P. 474. 

(2)  THE BRACE ROD WAS NOT A PART OF THE LADDER.  P. 474. 

(3)  LONG-CONTINUED USE OF BRACE RODS OF THE TYPE HERE INVOLVED, IN
THE SAME RELATION TO THE LADDER, WITHOUT CHANGE OF ITS ORDER BY THE
INTERSTATE COMMERCE COMMISSION, IS PERSUASIVE THAT THE ACT AND THE
ORDER WERE NOT VIOLATED.  P. 474. 

(4)  THE RIGHT OF RECOVERY, IF ANY, IN THIS CASE MUST BE GOVERNED NOT
BY THE SAFETY APPLIANCE ACT BUT BY THE COMMON LAW RULE OF NEGLIGENCE. 
P. 475. 

ATCHISON, TOPEKA & SANTA FE RAILWAY CO. V. SCARLETT. 

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 

CERTIORARI, 299 U.S. 537, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
AGAINST THE RAILROAD COMPANY IN AN ACTION UNDER THE FEDERAL SAFETY
APPLIANCE ACT. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THIS IS AN ACTION UNDER THE FEDERAL SAFETY APPLIANCE ACT (ACT OF
APRIL 14, 1910, C. 160, SECS. 2 AND 3, 36 STAT. 298*), BROUGHT BY
SCARLETT AGAINST THE RAILWAY COMPANY TO RECOVER DAMAGES FOR A PERSONAL
INJURY RESULTING FROM AN ALLEGED VIOLATION OF THE ACT.  IT ALSO WAS
GENERALLY ALLEGED THAT THE INJURY WAS DUE TO THE NEGLIGENCE OF THE
RAILWAY COMPANY.  SCARLETT WAS EMPLOYED AS A BRAKEMAN.  WHILE
DESCENDING FROM A BOX CAR BY MEANS OF A LADDER ATTACHED TO THE SIDE OF
THE CAR, HIS FOOT SLIPPED ON A ROUND BRACE ROD, ALSO ATTACHED TO THE
SIDE OF THE CAR IMMEDIATELY BEHIND THE LADDER, AND HE FELL TO THE
GROUND, THEREBY SUSTAINING THE INJURY FOR WHICH DAMAGES WERE SOUGHT. 

*SECTION 2, SO FAR AS PERTINENT, PROVIDES THAT  "...  ALL CARS
REQUIRING SECURE LADDERS AND SECURE RUNNING BOARDS SHALL BE EQUIPPED
WITH SUCH LADDERS AND RUNNING BOARDS, AND ALL CARS HAVING LADDERS SHALL
ALSO BE EQUIPPED WITH SECURE HAND HOLDS OR GRAB IRONS ON THEIR ROOFS AT
THE TOPS OF SUCH LADDERS:..." 

FIXED, TO DESIGNATE THE NUMBER, DIMENSIONS, LOCATION AND MANNER OF
APPLICATION OF THE APPLIANCES PROVIDED FOR IN THE FOREGOING SECTION. 
AND THESE DESIGNATIONS WERE TO "REMAIN AS THE STANDARDS OF EQUIPMENT TO
BE USED ON ALL CARS SUBJECT TO THE PROVISIONS OF THIS ACT, UNLESS
CHANGED BY AN ORDER OF SAID INTERSTATE COMMERCE COMMISSION  ..." 

THE LADDER ITSELF WAS NOT DEFECTIVE.  IN ITS STRUCTURE IT COMPLIED
WITH THE REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION MADE IN
PURSUANCE OF THE ACT.  "UNITED STATES SAFETY-APPLIANCE STANDARDS" -
ORDER OF MARCH 13, 1911.  IT IS UNNECESSARY TO SET FORTH THESE
REGULATIONS.  THE ONLY ONE IMPORTANT HERE PRESCRIBES - "MINIMUM
CLEARANCE OF TREADS, (SHALL BE) TWO (2), PREFERABLY TWO-AND-ONE-HALF (2
1/2), INCHES."  THE ROUND BRACE RODS WITH WHICH THE CAR WAS EQUIPPED
EXTENDED OUTWARD FROM THE WALL OF THE CAR A DISTANCE OF MORE THAN AN
INCH.  THESE BRACE RODS OPERATED TO STRENGTHEN THE WALLS OF THE CAR. 
THAT WAS THEIR ONLY PURPOSE; AND THERE IS NO DOUBT AS TO THEIR
NECESSITY FOR THAT PURPOSE.  THE BRACE ROD IN QUESTION RAN DOWN THE
SIDE OF THE CAR AT AN ANGLE OF ABOUT 45 DEGREES.  THE LADDER OVERLAY
THE BRACE ROD, AND CLEARED ITS OUTERMOST SURFACE BY MORE THAN THE
PRESCRIBED 2 1/2 INCHES. 

SCARLETT'S CONTENTION IS THAT THE BRACE ROD IS A PART OF THE LADDER,
AND BY REASON OF ITS SLANT AND ROUNDED SHAPE MADE THE DESCENT OF THE
LADDER INSECURE.  AT THE TRIAL, HE ABANDONED HIS CLAIM BASED UPON
NEGLIGENCE, AND PUT HIS CASE WHOLLY ON THE GROUND THAT THE ROUND
DIAGONAL BRACE ROD AND THE LADDER COMBINED TO CONSTITUTE AN UNSAFE
APPLIANCE WITHIN THE MEANING OF THE ACT, AND THAT, IN CONSEQUENCE, THE
LIABILITY OF THE RAILWAY COMPANY WAS ABSOLUTE.  THE CASE WAS SUBMITTED
TO THE JURY BY THE TRIAL COURT UPON THAT THEORY, AND A VERDICT AND
JUDGMENT AGAINST THE COMPANY RESULTED.  THAT JUDGMENT THE COURT BELOW
AFFIRMED ON APPEAL.  7 CAL.(2D) 181; 60 P.(2D) 462. 

THE RECORD SHOWS THAT BRACE RODS, GENERALLY FLAT IN SHAPE, ARE IN
PRACTICALLY UNIVERSAL USE ON BOX CARS.  THE COMPANY HERE FORMERLY USED
A FLAT ROD; BUT FINDING THAT SUCH A ROD FREQUENTLY BUCKLED, SOMETIMES
IMMEDIATELY UNDER THE LADDER, IT WAS ABANDONED AND THE STRONGER AND
LESS ELASTIC ROUND TYPE WAS ADOPTED IN ITS PLACE.  THIS WAS IN 1924;
AND THE PROOF SHOWS THAT FOR MANY YEARS CARS SO EQUIPPED HAVE BEEN IN
GENERAL AND CONSTANT OPERATION ON ITS LINES.  THE GENERAL FOREMAN OF
THE COMPANY, HAVING CHARGE OF ALL THE CAR REPAIRS AT ONE OF THE
PRINCIPAL SHOPS, AND WHO INSPECTED A THOUSAND CARS EACH MONTH,
TESTIFIED THAT HE HAD NEVER HEARD OF AN ACCIDENT ATTRIBUTABLE OR
CLAIMED TO BE ATTRIBUTABLE TO THE ROUND BRACE ROD, EXCEPT IN THE
PRESENT CASE.  THE RECORD SHOWS NOTHING TO THE CONTRARY. 

IN THE LIGHT OF THE LONG-CONTINUED USE OF BRACE RODS OF THE TYPE HERE
IN QUESTION IN THE SAME RELATION TO THE LADDER AS IS THE CASE HERE, WE
MAY FAIRLY PRESUME THAT THE INTERSTATE COMMERCE COMMISSION IN THE
PERFORMANCE OF ITS DUTIES WAS AWARE OF THE SITUATION, AND KNOWINGLY
PERMITTED ITS RULE IN RESPECT OF THE LADDER CLEARANCE TO REMAIN WITHOUT
CHANGE.  COMPARE PENNELL V. PHILADELPHIA & READING RY., 231 U.S. 675,
680.  THE REGULATION HAVING BEEN MADE BY THE COMMISSION IN PURSUANCE OF
CONSTITUTIONAL STATUTORY AUTHORITY, IT HAS THE SAME FORCE AS THOUGH
PRESCRIBED IN TERMS BY THE STATUTE.  AND THE RAILWAY COMPANY HAVING
STRICTLY COMPLIED WITH THE REGULATION HAS DISCHARGED ITS FULL DUTY SO
FAR AS THE LADDER REQUIREMENT OF THE SAFETY APPLIANCE ACT IS
CONCERNED.  THE JUDGMENT OF THE TRIAL COURT AND JURY CANNOT BE
SUBSTITUTED FOR THAT OF THE COMMISSION.  SEE KANSAS CITY SO. RY. V.
UNITED STATES, 231 U.S. 423, 456-457; NAPIER V. ATLANTIC COAST LINE,
272 U.S. 605, 611-612; MAHUTGA V. MINNEAPOLIS, ST. P. & S.S.M. RY. CO.,
182 MINN. 362, 366; 234 N.W. 474; AUSCHWITZ V. WABASH RY. CO., 346 ILL.
190, 204; 178 N.E. 403; FORD V. NEW YORK, N.H. & H.R. CO., 54 F.(2D)
342, 343. 

IN ILLINOIS CENTRAL R. CO. V. WILLIAMS, 242 U.S. 462, 466, WE HELD
THAT SEC. 2 OF THE ACT REQUIRING SECURE LADDERS, ETC., WAS OPERATIVE
PENDING ACTION BY THE INTERSTATE COMMERCE COMMISSION UNDER SEC. 3.  IN
THE INTERIM, WE SAID, SEC. 2 HAD THE EFFECT OF PRESCRIBING AN ABSOLUTE
AND IMPERATIVE DUTY, OF MAKING THE LADDERS AND OTHER APPLIANCES
"SECURE"; BUT THAT SEC. 3 CONTEMPLATED THAT THESE APPLIANCES "SHALL
ULTIMATELY CONFORM TO A STANDARD TO BE PRESCRIBED BY THE INTERSTATE
COMMERCE COMMISSION, THAT IS, THAT THEY SHALL BE STANDARDIZED  ..." 

WE DO NOT SEE HOW IT REASONABLY CAN BE SAID THAT THE BRACE ROD
CONSTITUTES A PART OF THE LADDER.  IN ITSELF, IT WAS A CONTRIVANCE
SEPARATE AND DISTINCT FROM THE LADDER, DESIGNED AND USED FOR A PURPOSE
ENTIRELY APART FROM THE USE OF THAT APPLIANCE.  THE RIGHT OF RECOVERY,
IF ANY, MUST, THEREFORE, REST UPON THE EFFECT OF THE NEAR PROXIMITY OF
THE LADDER TO THE ROD, NEITHER BEING IN ITSELF DEFECTIVE.  THE LAW TO
BE APPLIED TO THAT SITUATION IS THE COMMON-LAW RULE OF NEGLIGENCE, AND
NOT THE INFLEXIBLE RULE OF THE SAFETY APPLIANCE ACT; AND THE QUESTIONS
TO BE ANSWERED ARE WHETHER THE TWO APPLIANCES WERE MAINTAINED IN SUCH
RELATION TO ONE ANOTHER AS TO CONSTITUTE NEGLIGENCE ON THE PART OF THE
COMPANY AND, IF SO, WHETHER SCARLETT ASSUMED THE RISK.  FORD V. NEW
YORK, N.H. & H.R. CO., SUPRA; CHICAGO, R.I. & P. RY. CO. V. BENSON, 352
ILL. 195, 199; 185 N.E. 244; SLATER V. CHICAGO, ST. P., M. & O. RY.
CO., 146 MINN. 390, 392-393; 178 N.W. 813.  IN THAT VIEW, SCARLETT IN
ABANDONING HIS CLAIM UNDER THE COMMON-LAW RULE OF NEGLIGENCE ABANDONED
THE ONLY POSSIBLE GROUND OF RECOVERY. 

JUDGMENT REVERSED, AND CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. 
..END :




AMERICAN PROPELLER CO. V. U.S., 300 U.S. 475 


NO. 605.  ARGUED MARCH 12, 1937.  - DECIDED MARCH 29, 1937.  - 83 CT.
CLS. 100 - 14 F.SUPP.  168, REVERSED. 


1.  IN A SUIT IN THE COURT OF CLAIMS, A RECOVERY BY THE UNITED STATES
ON A COUNTERCLAIM, WHICH IS CLEARLY UNJUST AND INEQUITABLE TO THE
CLAIMANT, SHOULD NOT BE ALLOWED UNLESS UNDER PLAIN COMPULSION OF LAW. 
P. 478. 

2.  INTEREST UPON THE GOVERNMENT'S COUNTERCLAIM FOR TAXES, UNDER THE
CIRCUMSTANCES OF THIS CASE, SHOULD NOT HAVE BEEN ALLOWED.  P. 478. 

IN 1924, THE GOVERNMENT WAS INDEBTED TO A CLAIMANT IN THE SUM OF
$119,413.04, AGAINST WHICH THERE WAS AT THE SAME TIME A JUST
COUNTERCLAIM OF $82,701.29.  THE INEQUITY OF ALLOWING THE GOVERNMENT
INTEREST FOR 12 YEARS THEREAFTER, SO AS TO BRING THE CLAIMANT IN DEBT
TO THE GOVERNMENT IN THE SUM OF OVER $21,000, IS SO GROSS AS TO BE
SHOCKING. 

3.  THE OPINION OF THE COURT OF CLAIMS MAY BE REFERRED TO IN ORDER TO
CLARIFY THE MEANING OF A FINDING WHICH OTHERWISE WOULD BE IN DOUBT.  P.
479. 

4.  IT IS UNNECESSARY TO REMAND A CASE TO THE COURT OF CLAIMS FOR THE
PURPOSE OF CLARIFYING A FINDING AS TO WHETHER THERE WAS COMPLIANCE WITH
SEC. 250(E) OF THE REVENUE ACT OF 1918, MAKING "NOTICE AND DEMAND BY
THE COLLECTOR" PREREQUISITE TO THE ALLOWANCE OF INTEREST ON UNPAID
TAXES, WHERE THE FINDING, THE PLEADINGS, AND THE OPINION OF THE COURT,
TAKEN TOGETHER, CLEARLY SHOW THAT THE SECTION WAS NOT COMPLIED WITH. 
P. 480. 

5.  NOR OUGHT THE CASE TO BE REMANDED ON THE MERE CHANCE THAT THE
GOVERNMENT MAY BE ABLE TO FURNISH EVIDENCE WHICH IT FAILED TO FURNISH
IN A DECADE OF LITIGATION, AND ESPECIALLY IN RESPECT OF A CLAIM WHICH
AT THE BAR THE GOVERNMENT FRANKLY CONCEDED TO BE INEQUITABLE.  P. 480. 

AMERICAN PROPELLER & MANUFACTURING CO. V. UNITED STATES. 

CERTIORARI TO THE COURT OF CLAIMS. 

CERTIORARI, POST, P. 648, TO REVIEW A JUDGMENT AGAINST THE CLAIMANT
IN A SUIT AGAINST THE UNITED STATES UPON CERTAIN CONTRACTS, WHEREIN THE
GOVERNMENT ASSERTED A COUNTERCLAIM FOR TAXES. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THIS IS A PROCEEDING BROUGHT IN THE COURT OF CLAIMS BY PETITIONER TO
RECOVER A BALANCE OF $144,238.03 ALLEGED TO BE DUE FROM THE GOVERNMENT
UNDER CERTAIN DESIGNATED CONTRACTS.  THE GOVERNMENT FILED A GENERAL
TRAVERSE, AND A COUNTERCLAIM FOR A DEFICIENCY INCOME AND EXCESS-PROFITS
TAX ASSESSMENT IN THE SUM OF $191,403.77.  THE TAXES WERE FOR THE YEAR
1918, AND WERE ASSESSED ON THE 14TH DAY OF JUNE, 1924.  THE COURT BELOW
FOUND THAT THE GOVERNMENT WAS INDEBTED TO PETITIONER UPON THE CONTRACTS
IN THE SUM OF $119,413.04.  UPON THE COUNTERCLAIM THE COURT FOUND THAT
THE TAX LIABILITY OF PETITIONER WAS $82,701.29.  UPON THIS LATTER SUM,
IT ALLOWED INTEREST, AT THE RATE OF 6% PER ANNUM FROM THE DATE OF
ASSESSMENT, IN THE SUM OF $58,607.64, BRINGING THE TOTAL ALLOWANCE UPON
THE COUNTERCLAIM TO THE SUM OF $141,308.93.  JUDGMENT WAS GIVEN AGAINST
PETITIONER FOR THE DIFFERENCE BETWEEN THAT SUM AND THE SUM DUE UNDER
THE CONTRACTS, NAMELY $21,895.89.  THE OPINION OF THE COURT WILL BE
FOUND IN 14 F.SUPP.  168; AND A SUPPLEMENTAL OPINION IN THE FORM OF A
MEMORANDUM WAS FILED ON OCTOBER 5, 1936.  (17 F.SUPP.  215.)  WE
GRANTED CERTIORARI, LIMITED TO THE QUESTION OF THE ALLOWANCE OF
INTEREST TO THE GOVERNMENT UPON ITS COUNTERCLAIM. 

IN THE ARGUMENT HERE, BOTH PARTIES PROCEED UPON THE THEORY THAT
INTEREST WAS ALLOWED UNDER THE REVENUE ACT OF 1918, C. 18, 40 STAT.
1057, 1083, SEC. 250(E).  FN1  THE GOVERNMENT CONTENDED BELOW THAT
UNDER THAT SECTION IT WAS ENTITLED TO INTEREST AT THE RATE OF 1 PER
CENTUM PER MONTH INSTEAD OF 6 PER CENTUM PER ANNUM.  IT ABANDONS THAT
CONTENTION HERE, BUT INSISTS THAT IT IS ENTITLED TO AT LEAST THE
INTEREST ALLOWED BY THE COURT BELOW. 

IT WILL BE SEEN THAT UNDER THE FINDINGS, THE GOVERNMENT WAS INDEBTED
IN 1924 TO PETITIONER IN THE SUM OF $119,413.04, AGAINST WHICH THERE
WAS AT THE SAME TIME A JUST COUNTERCLAIM OF $82,701.29; SO THAT IF THE
ACCOUNT HAD BEEN ADJUSTED AT THAT TIME INSTEAD OF 12 YEARS LATER, THE
GOVERNMENT WOULD HAVE BEEN OBLIGED TO PAY PETITIONER THE DIFFERENCE
BETWEEN THESE TWO SUMS, OR $36,711.75.  THE INEQUITY OF ALLOWING THE
GOVERNMENT INTEREST FOR 12 YEARS UNDER THESE CIRCUMSTANCES, SO AS TO
BRING THE PETITIONER IN DEBT TO THE GOVERNMENT IN THE SUM OF OVER
$21,000, IS SO GROSS AS TO BE SHOCKING. 

WE HAVE SAID (UNITED STATES V. THE THEKLA, 266 U.S. 328, 339-340,
341) - "WHEN THE UNITED STATES COMES INTO COURT TO ASSERT A CLAIM IT SO
FAR TAKES THE POSITION OF A PRIVATE SUITOR AS TO AGREE BY IMPLICATION
THAT JUSTICE MAY BE DONE WITH REGARD TO THE SUBJECT MATTER.  THE
ABSENCE OF LEGAL LIABILITY IN A CASE WHERE BUT FOR ITS SOVEREIGNTY IT
WOULD BE LIABLE DOES NOT DESTROY THE JUSTICE OF THE CLAIM AGAINST IT
...  THE REASONS ARE STRONG FOR NOT OBSTRUCTING THE APPLICATION OF
NATURAL JUSTICE AGAINST THE GOVERNMENT BY TECHNICAL FORMULAS WHEN
JUSTICE CAN BE DONE WITHOUT ENDANGERING ANY PUBLIC INTEREST."  IF THE
PRINCIPLE THUS STATED IS NOT STRICTLY APPLICABLE, IT AT LEAST SUGGESTS
THAT THE COURT SHOULD NOT AFFIRM WHAT IS CLEARLY AN UNJUST AND
INEQUITABLE RESULT UNLESS UNDER PLAIN COMPULSION OF LAW. 

THE TAX REMAINS UNPAID AFTER THE DATE WHEN IT IS DUE AND "FOR TEN DAYS
AFTER NOTICE AND DEMAND BY THE COLLECTOR."  THE COURT BELOW FOUND THAT
ON JUNE 14, 1924, THE COMMISSIONER MADE THE ASSESSMENT "AND DULY
NOTIFIED PLAINTIFF WITH REGARD THERETO."  IT MADE NO OTHER FINDING IN
RESPECT OF THAT MATTER.  THE GOVERNMENT CONTENDS THAT THE FINDING WHICH
WAS MADE MEANS THAT THE COMMISSIONER SET IN MOTION THE NORMAL
ADMINISTRATIVE MACHINERY WHICH RESULTED IN A NOTICE DEMANDING PAYMENT,
AND RELIES UPON THE PRESUMPTION OF OFFICIAL REGULARITY AS BEING
SUFFICIENT TO MAKE THIS FINDING THE EQUIVALENT OF A FINDING OF NOTICE
AND DEMAND BY THE COLLECTOR.  PACIFIC STATES CO. V. WHITE, 296 U.S.
176, 186. 

BUT WE ARE DEALING HERE NOT WITH A PRESUMPTION, BUT WITH A SPECIFIC
FINDING; AND THAT FINDING SHOULD BE EXAMINED IN THE LIGHT OF THE
PLEADINGS.  LUCKENBACH S.S. CO. V. UNITED STATES, 272 U.S. 533, 539. 
THE AMENDED COUNTERCLAIM OF THE GOVERNMENT, FILED IN 1927, AMONG OTHER
THINGS, ALLEGES THAT "THE COMMISSIONER OF INTERNAL REVENUE MADE AN
ADDITIONAL ASSESSMENT" OF WHICH THE PLAINTIFF (PETITIONER) WAS DULY
NOTIFIED.  THE COLLECTOR IS NOT MENTIONED AND NO DEMAND IS ALLEGED. 
CONSIDERING THE FINDING IN CONNECTION WITH THE ALLEGATION, THE FORMER
FAIRLY MAY BE CONSTRUED AS COMPREHENDING ALL THAT WAS DONE IN ATTEMPTED
COMPLIANCE WITH THE CONDITION IMPOSED BY SEC. 250(E) AS A PREREQUISITE
TO THE ALLOWANCE OF INTEREST.  BUT THIS IS NOT ALL THAT APPEARS. 

IN THE MEMORANDUM SUPPLEMENTING THE ORIGINAL OPINION, THE COURT BELOW
SAID:  "THE RECORD FAILS TO SHOW THAT ANY DEMAND WAS MADE AND WE CAN
NOT PRESUME THAT IT WAS.  ON THE CONTRARY, IN VIEW OF THE FACT THAT
PLAINTIFF AT THE TIME WAS CLAIMING THAT THE DEFENDANT WAS INDEBTED TO
IT IN A SUM LARGER THAN THE AMOUNT OF THE TAX, IT IS MORE PROBABLE THAT
NO SUCH DEMAND WAS MADE."  WHILE IT IS TRUE THAT THIS COURT IS NOT AT
LIBERTY TO REFER TO THE OPINION FOR THE PURPOSE OF EKING OUT,
CONTROLLING OR MODIFYING THE SCOPE OF THE FINDINGS,  FN2  THE RULE IS
NOT ABSOLUTE AND DOES NOT PRECLUDE REFERENCE TO THE OPINION FOR ALL
PURPOSES WHATSOEVER.  IT IS WELL ESTABLISHED THAT IN CASE OF AMBIGUITY,
EXTRINSIC AID MAY BE SOUGHT IN ORDER TO SETTLE THE MEANING OF A STATUTE
OR A CONTRACT.  WE SEE NO REASON WHY THE PRINCIPLE OF THAT RULE DOES
NOT PERMIT REFERENCE TO THE OPINION OF THE COURT IN ORDER TO CLARIFY
THE MEANING OF A FINDING OTHERWISE IN DOUBT.  THE GOVERNMENT SUGGESTS
THAT IN SUCH CASE THE PROPER COURSE IS TO REMAND THE CASE TO THE COURT
OF CLAIMS IN ORDER THAT THAT COURT MAY SUPPLEMENT AND CLARIFY THE
FINDING AND, IF NECESSARY, TAKE ADDITIONAL EVIDENCE TO THAT END.  OF
COURSE, THAT SOMETIMES HAS BEEN DONE; BUT WHERE, AS HERE, THE FINDING,
THE PLEADINGS AND THE OPINION OF THE COURT, TAKEN TOGETHER, CLEARLY
SHOW THAT SEC. 250(E) IN THE PARTICULAR UNDER CONSIDERATION WAS NOT
COMPLIED WITH, IT IS UNNECESSARY TO FOLLOW THAT PROCEDURE. 

THIS PROCEEDING WAS ORIGINALLY BROUGHT IN 1922.  THE DEFICIENCY
ASSESSMENT WAS MADE WHILE THE CASE WAS PENDING.  THE COUNTERCLAIM OF
THE GOVERNMENT WAS FIRST FILED IN 1926, AND AN AMENDED COUNTERCLAIM IN
1927.  UNDER THESE CIRCUMSTANCES WE SEE NO REASON FOR REMANDING THE
CASE UPON THE MERE CHANCE THAT THE GOVERNMENT MAY BE ABLE TO FURNISH
EVIDENCE WHICH IT HAS FAILED TO FURNISH DURING MORE THAN A DECADE OF
LITIGATION, AND ESPECIALLY IN RESPECT OF A CLAIM WHICH AT THE BAR THE
GOVERNMENT FRANKLY CONCEDED TO BE INEQUITABLE. 

THE JUDGMENT SHOULD BE REVERSED WITH DIRECTIONS TO ENTER JUDGMENT FOR
PETITIONER, WITHOUT AN ALLOWANCE OF INTEREST UPON THE COUNTERCLAIM, IN
ACCORDANCE WITH THE FOREGOING OPINION.  REVERSED. 

FN1  SEC. 250.(E)  IF ANY TAX REMAINS UNPAID AFTER THE DATE WHEN IT
IS DUE, AND FOR TEN DAYS AFTER NOTICE AND DEMAND BY THE COLLECTOR,
THEN, EXCEPT IN THE CASE OF ESTATES OF INSANE, DECEASED, OR INSOLVENT
PERSONS, THERE SHALL BE ADDED AS PART OF THE TAX THE SUM OF 5 PER
CENTUM ON THE AMOUNT DUE BUT UNPAID, PLUS INTEREST AT THE RATE OF 1 PER
CENTUM PER MONTH UPON SUCH AMOUNT FROM THE TIME IT BECAME DUE:
PROVIDED, THAT AS TO ANY SUCH AMOUNT WHICH IS THE SUBJECT OF A BONA
FIDE CLAIM FOR ABATEMENT SUCH SUM OF 5 PER CENTUM SHALL NOT BE ADDED
AND THE INTEREST FROM THE TIME THE AMOUNT WAS DUE UNTIL THE CLAIM IS
DECIDED SHALL BE AT THE RATE OF 1/2 OF 1 PER CENTUM PER MONTH.... 

FN2  STONE V. UNITED STATES, 164 U.S. 380, 383; UNITED STATES V.
WELLS, 283 U.S. 102, 120; CROCKER V. UNITED STATES, 240 U.S. 74, 78;
UNITED STATES V. ESNAULT-PELTERIE, 299 U.S. 201, 206. 
..END :












HELVERING V. TEX-PENN CO., 300 U.S. 481 


NO. 207.  ARGUED DECEMBER 14, 1936.  REARGUED FEBRUARY 1, 2, 1937.  -
DECIDED MARCH 29, 1937.  - 83 F.(2D) 518, AFFIRMED. 


1.  FINDINGS OF CIRCUMSTANTIAL FACTS BY THE BOARD OF TAX APPEALS MUST
BE TAKEN AS ESTABLISHED IF SUPPORTED BY SUBSTANTIAL EVIDENCE.  P. 490. 

2.  AN "ULTIMATE FINDING" BY THE BOARD OF TAX APPEALS, WHICH IS
REALLY A CONCLUSION OF LAW, OR A DETERMINATION OF MIXED LAW AND FACT,
BASED ON THE BOARD'S FINDINGS OF PRIMARY, EVIDENTIARY OR CIRCUMSTANTIAL
FACTS, IS SUBJECT TO JUDICIAL REVIEW, AND, ON SUCH REVIEW, THE COURT
MAY SUBSTITUTE ITS JUDGMENT FOR THAT OF THE BOARD.  P. 491. 

3.  IN PURSUANCE OF A PLAN OF REORGANIZATION, THE ASSETS OF AN OIL
COMPANY, AND UNDIVIDED INTERESTS IN OIL LEASES OWNED BY INDIVIDUALS,
WERE CONVEYED TO A NEW COMPANY, WHICH DELIVERED PART OF ITS SHARES AND
A SUM OF CASH TO THE OLD COMPANY (LATER DISSOLVED) AND PAID CASH TO THE
INDIVIDUALS.  THE BOARD OF TAX APPEALS, AFTER FINDING THE EVIDENTIAL
FACTS, MADE AN "ULTIMATE FINDING" THAT THE CONSIDERATION MOVING TO THE
OLD COMPANY FROM THE NEW ONE INCLUDED THE CASH DELIVERED TO THE FORMER
AS WELL AS THE SHARES, AND UPON THAT GROUND REFUSED TO APPLY THE NON
RECOGNITION OF GAINS PROVISION (REV. ACT, 1918, SEC. 202(B); TREAS.
REG. 45, ART. 1567), AND ALLOWED DEFICIENCY ASSESSMENTS.  HELD: 

(1)  THE VALIDITY OF THE "ULTIMATE FINDING" IS TO BE TESTED BY WHAT
IN FACT WAS DONE RATHER THAN BY THE MERE FORM OF WORDS USED IN THE
WRITINGS EMPLOYED.  P. 493. 

(2)  THE BOARD'S FINDINGS OF WHAT WAS ACTUALLY DONE SHOW THAT THE
MONEY ADVANCED TO THE OLD COMPANY WAS NO PART OF THE CONSIDERATION FOR
ITS ASSETS BUT WAS PART OF THE CONSIDERATION FOR THE INDIVIDUALLY OWNED
LEASE INTERESTS, AND WAS SO ADVANCED, BY DIRECTION OF THE INDIVIDUALS,
TO PAY THE OLD COMPANY'S DEBTS, IN ORDER THAT ITS ASSETS MIGHT BE
CONVEYED FREE AND CLEAR, AS REQUIRED BY THE PLAN, AND WAS SO APPLIED
EXCEPT A PORTION WHICH WAS RETURNED TO THE INDIVIDUALS PRO RATA.  P.
491. 

4.  ANOTHER "ULTIMATE FINDING" OF THE BOARD, THAT THE CASH RECEIVED
BY THREE OF THE INDIVIDUALS FROM THE NEW COMPANY WAS CONSIDERATION FOR
BOTH THEIR STOCK IN THE OLD COMPANY AND THEIR INTERESTS IN THE LEASES,
IS CLEARLY NEGATIVED BY THE CIRCUMSTANTIAL FACTS FOUND BY THE BOARD,
SHOWING THAT THIS STOCK WAS ASSIGNED TO THE OTHER TWO INDIVIDUALS
BEFORE THE ASSIGNMENT OF THE LEASE INTERESTS WAS MADE.  THE FACT THAT
THE ASSIGNMENT OF STOCK WAS TO BE RETURNED IF PAYMENT FOR THE
ASSIGNORS' LEASE INTERESTS WAS NOT MADE BEFORE A CERTAIN DATE, DID NOT
MAKE THE TWO SALES A SINGLE OR INDIVISIBLE TRANSACTION.  P. 495. 

5.  A CONSTRUCTION OF REV. ACT, 1918, SEC. 202(B), AND T.R. 45, ART.
1567, CONTRARY TO PREVIOUS CONSTRUCTION AND DECISION, NEVER MENTIONED
OR CONSIDERED IN THE PROCEEDINGS UNDER REVIEW, BUT ADVANCED BY THE
COMMISSIONER OF INTERNAL REVENUE FOR THE FIRST TIME IN THIS COURT AFTER
CERTIORARI HAD BEEN GRANTED, WILL NOT BE CONSIDERED HERE.  P. 497. 

6.  TAXPAYERS ARE ENTITLED TO KNOW THE BASIS OF LAW AND FACT ON WHICH
THE COMMISSIONER SEEKS TO SUSTAIN DEFICIENCY ASSESSMENTS.  P. 498. 

7.  WHERE SHARES OF STOCK EXCHANGED BY A CORPORATION FOR THE ASSETS
OF ANOTHER CORPORATION WERE HIGHLY SPECULATIVE AND WERE SUBJECT TO A
RESTRICTIVE AGREEMENT PREVENTING THEIR SALE AND DID NOT HAVE A FAIR
MARKET VALUE, CAPABLE OF BEING ASCERTAINED WITH REASONABLE CERTAINTY,
WHEN THEY WERE ACQUIRED BY THE TAXPAYERS, HELD THAT THEIR OWNERSHIP DID
NOT LAY THE BASIS FOR A COMPUTATION OF GAIN AT THE TIME THEY WERE
RECEIVED, OR FOR A TAX AS OF THAT DATE UNDER REV. ACT, 1918, SEC.
202(B); T.R. 45, ART. 1563.  P. 499. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. TEX-PENN OIL CO.* 

*TOGETHER WITH NO. 208, HELVERING, COMMISSIONER, V. BENEDUM; AND NO.
209, HELVERING, COMMISSIONER, V. PARRIOTT.  CERTIORARI TO THE CIRCUIT
COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 299 U.S. 529, 530, TO REVIEW A JUDGMENT OVERRULING AN
ORDER OF THE BOARD OF TAX APPEALS, 28 B.T.A. 917, REDETERMINING
DEFICIENCY TAX ASSESSMENTS. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

IN EACH OF THESE CASES THERE IS INVOLVED AN ITEM CLAIMED BY
PETITIONER TO BE TAXABLE INCOME OF RESPONDENT FOR 1919.  IN 1925 THE
COMMISSIONER GAVE NOTICE OF DEFICIENCIES.  THESE CLAIMS WERE BASED ON A
TRANSACTION IN 1919 WHICH INCLUDED TRANSFER BY TEX-PENN OIL COMPANY OF
ALL ITS ASSETS TO TRANSCONTINENTAL OIL COMPANY, THE ISSUE AND DELIVERY
BY THE LATTER OF 1,007,834 SHARES TO BENEDUM AND PARRIOTT, THE
STOCKHOLDERS OF TEX-PENN, AND THE DISSOLUTION OF THAT COMPANY.  THE
COMMISSIONER CLAIMS THAT THE CONSIDERATION FOR THE TRANSFER INCLUDED
NOT ONLY THE STOCK BUT ALSO $350,000 IN CASH PAID BY TRANSCONTINENTAL
TO TEX-PENN.  RESPONDENTS PETITIONED THE BOARD OF TAX APPEALS FOR
REDETERMINATIONS.  THE CASES WERE CONSOLIDATED FOR HEARING; THE BOARD
MADE FINDINGS OF CIRCUMSTANTIAL FACTS ON THE BASIS OF WHICH IT
CONCLUDED IN AN "ULTIMATE FINDING" THAT THE CONSIDERATION FOR THE
TRANSFER BY TEX-PENN TO TRANSCONTINENTAL INCLUDED CASH, AND THAT
THEREFORE THE TRANSACTION WAS NOT ONE IN WHICH, UNDER REVENUE ACT OF
1918, SEC. 202(B), 40 STAT. 1060, "NO GAIN OR LOSS SHALL BE DEEMED TO
OCCUR."  IT REDETERMINED DEFICIENCIES OF $2,871,085, $1,925,466, AND
$908,470, RESPECTIVELY.  28 B.T.A. 917.  RESPONDENTS PETITIONED THE
CIRCUIT COURT OF APPEALS FOR REVIEW.  IT REVERSED THE ORDERS WITH
DIRECTIONS THAT THE BOARD ENTER JUDGMENTS OF NO DEFICIENCIES.  83
F.(2D) 518. 

1.  THE FIRST ULTIMATE FINDING IS (P. 950):  "THE CONSIDERATION
RECEIVED BY TEX-PENN ON OR ABOUT AUGUST 1, 1919, IN EXCHANGE FOR ITS
ASSETS CONSISTED OF $350,000 IN CASH AND 1,007,834 SHARES OF
TRANSCONTINENTAL STOCK OF NO PAR VALUE." 

THE FIRST QUESTION FOR DECISION IS WHETHER THAT CONCLUSION IS
SUPPORTED BY EVIDENCE.  IF WELL GROUNDED, THE TRANSACTION IS NOT WITHIN
THE NON-RECOGNITION OF GAIN PROVISION OF SEC. 202(B).  THAT SECTION
DECLARES THAT "WHEN IN CONNECTION WITH THE REORGANIZATION, MERGER OR
CONSOLIDATION OF A CORPORATION A PERSON RECEIVES IN PLACE OF STOCK OR
SECURITIES OWNED BY HIM NEW STOCK OR SECURITIES OF NO GREATER AGGREGATE
PAR OR FACE VALUE, NO GAIN OR LOSS SHALL BE DEEMED TO OCCUR FROM THE
EXCHANGE, AND THE NEW STOCK OR SECURITIES RECEIVED SHALL BE TREATED AS
TAKING THE PLACE OF THE STOCK, SECURITIES, OR PROPERTY EXCHANGED." 

TREASURY REGULATIONS 45, ART. 1567,  FN1  CONTAINS AN INTERPRETATION
OF THAT PROVISION:  "IN GENERAL WHERE TWO (OR MORE) CORPORATIONS UNITE
THEIR PROPERTIES BY  ...  THE SALE OF ITS PROPERTY BY B TO A AND THE
DISSOLUTION OF B  ...  NO TAXABLE INCOME IS RECEIVED FROM THE
TRANSACTION  ... PROVIDED THE SOLE CONSIDERATION RECEIVED BY B AND ITS
STOCKHOLDERS  ...  IS STOCK  ...  OF A  ..." 

THE PERTINENT SUBSTANCE OF THE CIRCUMSTANTIAL FACTS FOUND FOLLOWS: 

IN 1917 AND EARLY 1918, RESPONDENTS BENEDUM AND PARRIOTT AND THREE
OTHERS, KIRKLAND, LANTZ AND WRATHER, ACQUIRED 31 TEXAS OIL AND GAS
LEASES CALLED THE "DUKE-KNOLES" GROUP.  THE LEASES RESERVED TO LESSORS
A ONE-EIGHTH ROYALTY.  THE INTERESTS OF THE FIVE IN WHAT THE FINDINGS
REFER TO AS THE REMAINING SEVEN-EIGHTHS INTEREST WERE BENEDUM SIX
SIXTEENTHS, PARRIOTT AND KIRKLAND THREE-SIXTEENTHS EACH, LANTZ AND
WRATHER TWO-SIXTEENTHS EACH. 

IN OCTOBER, 1918, THEY CAUSED TEX-PENN TO BE INCORPORATED.  ITS
AUTHORIZED CAPITAL STOCK WAS $2,000,000, DIVIDED INTO 80,000 SHARES OF
$25 EACH.  IT ISSUED 4,000 SHARES FOR PAR TO THE FIVE LEASE OWNERS
RATABLY ACCORDING TO THEIR INTERESTS; THEY TRANSFERRED A FOURTH
INTEREST IN THE LEASES TO THE COMPANY.  IT AGREED TO DEVELOP THE
PROPERTIES AT ITS OWN EXPENSE; THEY AGREED THAT ONE-HALF OF THEIR
SHARES OF THE PROCEEDS MIGHT BE USED TO MAKE UP DEFICITS IN THE
COMPANY'S OPERATING EXPENSES. 

THEY AUTHORIZED PARRIOTT TO RECEIVE THEIR SHARES OF THE PROCEEDS, TO
CARRY OUT THE AGREEMENT WITH THE COMPANY, AND TO INVEST THE REMAINING
HALF OF THE PROCEEDS IN THE COMPANY'S STOCK.  ACCOUNTS OF TRANSACTIONS
BETWEEN THE COMPANY AND HIM, AS AGENT, WERE KEPT UNDER THE NAME OF
"PARRIOTT ATTORNEY."  PURSUANT TO THE AGREEMENT, HE FROM TIME TO TIME
PURCHASED AT PAR STOCK OF THE COMPANY AMOUNTING TO 9,120 SHARES; IT
USED THE MONEY IN DEVELOPING THE LEASED PROPERTIES. 

BENEDUM AND PARRIOTT WERE ALSO INTERESTED AS OWNERS IN THE RIVERSIDE
EASTERN OIL COMPANY, THE RIVERSIDE WESTERN OIL COMPANY, AND THE
PITTSBURGH-TEXAS OIL & GAS COMPANY.  IN EARLY 1919, THEY DECIDED TO
CAUSE TO BE ORGANIZED THE TRANSCONTINENTAL OIL COMPANY TO ACQUIRE AND
OPERATE THE PROPERTIES OF THESE COMPANIES AND OF TEX-PENN TOGETHER WITH
THE INDIVIDUALLY OWNED INTERESTS IN THE LEASES.  BENEDUM'S FOUR
ASSOCIATES, BY WRITING DATED JUNE 2, 1919, GAVE HIM AUTHORITY TO SELL
THE ASSETS OF TEX-PENN AND ALL INDIVIDUAL INTERESTS IN THE LEASES FOR
$12,000,000 AND AGREED TO ACCEPT THEIR PRO RATA SHARE OF THE NET
PROCEEDS OF THE SALE FOR THEIR HOLDINGS IN TEX-PENN AND THEIR
INDIVIDUAL INTERESTS IN THE LEASES. 

TO ARRANGE FOR MONEY WITH WHICH TO CARRY OUT THE PROJECT, BENEDUM
NEGOTIATED WITH BANKERS.  UNDER THE FIRST PLAN, THE BANKERS WERE TO PAY
TRANSCONTINENTAL $23,000,000 FOR A PART OF ITS STOCK, AND THAT AMOUNT
WAS TO BE USED TO PAY THE $12,000,000, AND $2,500,000 IN EQUAL PARTS TO
RIVERSIDE EASTERN AND RIVERSIDE WESTERN TO RETIRE PREFERRED STOCK.  THE
BALANCE, $8,500,000, WAS TO BE RETAINED BY TRANSCONTINENTAL FOR WORKING
CAPITAL.  BY A LATER ARRANGEMENT THE AMOUNT TO BE PAID BY THE BANKERS
WAS REDUCED TO $20,000,000 AND THAT TO BE RECEIVED BY THE FIVE
INDIVIDUALS TO $9,000,000.  BENEDUM'S ASSOCIATES DECLINED TO ACCEPT
LESS THAN THEIR PROPORTIONATE SHARE OF $12,000,000 AS ORIGINALLY
PLANNED.  IN ORDER THAT THE UNDERTAKING SHOULD NOT FAIL, BENEDUM AGREED
TO DIMINISH BY $3,000,000 THE AMOUNT HE WAS TO HAVE AND SO BORE THE
ENTIRE REDUCTION.  ON THAT BASIS, DISTRIBUTION OF THE $9,000,000 WOULD
BE $1,500,000 EACH TO BENEDUM, LANTZ AND WRATHER AND $2,250,000 EACH TO
PARRIOTT AND KIRKLAND. 

TRANSCONTINENTAL WAS ORGANIZED AND AUTHORIZED TO ISSUE 2,000,000 NO
PAR-VALUE SHARES, OF WHICH THE BANKERS AGREED TO BUY 500,000 AT $40 PER
SHARE.  THEY EXERCISED AN OPTION TO BUY 225,000 ADDITIONAL SHARES AT
$1.00 PER SHARE.  TEX-PENN'S ASSETS WERE TO PASS TO TRANSCONTINENTAL
FREE AND CLEAR OF ALL LIABILITIES.  JULY 12, KIRKLAND, LANTZ AND
WRATHER ASSIGNED AND DELIVERED THEIR TEX-PENN SHARES TO BENEDUM AND
PARRIOTT FOR $30.  FN2  JULY 15, THE STOCK WAS TRANSFERRED ON THE TEX
PENN STOCK BOOK.  JULY 22, NEW DIRECTORS WERE ELECTED TO TAKE THE
PLACES OF THE ASSIGNORS WHO, AS STATED IN THE MINUTES, HAD CEASED TO BE
STOCKHOLDERS. 

JULY 14, THE INDIVIDUAL OWNERS AND TEX-PENN EXECUTED AN ASSIGNMENT TO
TRANSCONTINENTAL OF ALL THEIR INTEREST IN THE LEASES AND GAVE IT TO
PARRIOTT IN ESCROW FOR DELIVERY UPON PAYMENT OF $5,250,000 TO KIRKLAND,
LANTZ AND WRATHER, OR TO PARRIOTT FOR THEIR ACCOUNT.  THEY STIPULATED
THAT IF PAYMENT WAS NOT MADE BY AUGUST 1, THE ASSIGNMENT AND STOCK
WOULD BE RETURNED TO THEM.  AND, IN ORDER THAT TEX-PENN ASSETS MIGHT BE
FREE FROM LIABILITY, THEY AUTHORIZED PARRIOTT TO DEDUCT FROM THEIR
SHARES SEVEN-SIXTEENTHS OF NOT EXCEEDING $500,000 TO PAY DEBTS AND
OBLIGATIONS OF THE COMPANY.  BENEDUM AND PARRIOTT WERE TO BEAR NINE
SIXTEENTHS.  THE AUDITOR OF TEX-PENN REPORTED THAT APPROXIMATELY
$350,000 WOULD BE REQUIRED. 

JULY 24, BENEDUM AND PARRIOTT MADE A CONTRACT WITH J. M. HOLLIDAY,
ACTING FOR THE BANKERS AND TRANSCONTINENTAL, IN WHICH THEY AGREED TO
TRANSFER TO TRANSCONTINENTAL THEIR INTERESTS IN THE LEASES FOR
$3,400,000 IN CASH, TO CAUSE TEX-PENN TO TRANSFER TO TRANSCONTINENTAL
ALL ITS ASSETS "FOR AND IN CONSIDERATION OF  ...  $350,000 IN CASH AND
...  1,007,834 SHARES OF THE CAPITAL STOCK OF  ...  TRANSCONTINENTAL,"
AND TO CAUSE KIRKLAND, LANTZ AND WRATHER TO TRANSFER TO
TRANSCONTINENTAL THEIR SEVEN-SIXTEENTHS OF THE FIVE-EIGHTS INTEREST IN
THE LEASES FOR $5,250,000 IN CASH. 

THE SAME DAY, HOLLIDAY ADDRESSED AN OFFER TO TEX-PENN TO PURCHASE ALL
ITS ASSETS "FOR ... $350,000 IN CASH AND  ...  1,007,834 SHARES" OF
TRANSCONTINENTAL.  BY RESOLUTION OF ITS DIRECTORS, TEX-PENN ACCEPTED
THE OFFER, REFERRING TO THE CONSIDERATION AS "$350,000 CASH AND  ...
1,007,834 SHARES" OF TRANSCONTINENTAL.  IT WAS FURTHER RESOLVED THAT,
AFTER THE TRANSFER OF ITS PROPERTY, THE COLLECTION OF DEBTS DUE, AND
PAYMENT OF THOSE OWED BY, TEX-PENN, IT WOULD BE DISSOLVED AND ITS
ASSETS DISTRIBUTED TO ITS STOCKHOLDERS "AND THAT TO FACILITATE THIS,
THE  ...  OFFICERS  ... DIRECT MR. HOLLIDAY THAT  ...  $350,000  ...
SHALL BE PAID TO THE TREASURY OF THIS COMPANY, AND THAT THE  ...
SHARES  ...  BE ISSUED AND DELIVERED TO" BENEDUM AND PARRIOTT JOINTLY. 

JULY 30, TEX-PENN CONVEYED ITS ASSETS TO TRANSCONTINENTAL.  HOLLIDAY
DIRECTED THE LATTER TO DELIVER TO BENEDUM AND PARRIOTT JOINTLY
CERTIFICATES FOR 1,007,834 SHARES, TO DELIVER $5,250,000 TO PARRIOTT
ATTORNEY, $3,400,000 TO BENEDUM AND PARRIOTT AND $350,000 TO TEX-PENN. 
THE NEXT DAY, THESE DIRECTIONS WERE CARRIED OUT BY TRANSCONTINENTAL. 

THERE WAS AVAILABLE FOR USE BY TEX-PENN IN PAYMENT OF ITS EXPENSES
$286,891.29, DERIVED FROM ONE-HALF OF THE PROCEEDS FROM THE
INDIVIDUALLY OWNED FIVE-EIGHTHS INTEREST IN THE LEASES.  IT ALSO HAD
RECEIVABLES AND OIL AND THE $350,000 WITH WHICH TO DISCHARGE ITS
LIABILITIES.  THE $350,000 WAS DEDUCTED BY TRANSCONTINENTAL FROM THE
AMOUNT TO BE PAID BENEDUM AND PARRIOTT FOR THEIR INTEREST IN THE
LEASES.  BUT THAT DEDUCTION WAS IN FACT BORNE NOT BY THEM ALONE BUT
RATABLY BY THE FIVE OWNERS.  PAYMENT OF TEX-PENN'S LIABILITIES DID NOT
REQUIRE USE OF ALL THE $350,000.  THERE REMAINED $55,255.24.  AND THAT
SUM WAS DISTRIBUTED TO THE FIVE INDIVIDUALS ACCORDING TO THEIR
INTERESTS IN THE LEASES. 

DETAILS ARE REFLECTED IN THE ACCOUNTS OF "PARRIOTT ATTORNEY." 
KIRKLAND WAS GIVEN CREDIT FOR $2,250,000 AND LANTZ AND WRATHER FOR
$1,500,000 EACH AS PURCHASE PRICES OF THEIR SHARES OF THE FIVE-EIGHTHS
INTEREST IN THE LEASES.  EACH OF THE FIVE, ACCORDING TO HIS INTEREST IN
THE LEASES, WAS CHARGED WITH HIS SHARE OF THE $350,000 WITH THE
EXPLANATION THAT "THIS AMOUNT WAS TO BE APPORTIONED AGAINST THE SALE
PRICE RECEIVED BY ALL THE INDIVIDUAL INTERESTS."  FN3 

IN RESPECT OF THE TRANSFER OF THE TEX-PENN STOCK BY KIRKLAND, LANTZ
AND WRATHER TO BENEDUM AND PARRIOTT, THE LATTER WERE CHARGED $15 EACH
AND CORRESPONDINGLY EACH OF THE FORMER WAS CREDITED WITH $10.  AT THE
END OF THE YEAR, PARRIOTT FURNISHED ANNUAL STATEMENTS TO KIRKLAND,
LANTZ AND WRATHER, SHOWING THE SALE PRICES OF THEIR INTERESTS IN THE
LEASES REDUCED BY THEIR CONTRIBUTIONS TO THE $350,000.  THE SALES PRICE
OF THE STOCK SOLD BY THEM WAS SHOWN AT $30. 

ON PARTIAL DISTRIBUTIONS BY PARRIOTT BEFORE FINAL SETTLEMENT,
KIRKLAND, LANTZ AND WRATHER GAVE RECEIPTS SIMILAR IN FORM.  THAT OF
KIRKLAND RECITED THAT THE PAYMENT WAS ON ACCOUNT OF THE PURCHASE PRICE
OF HIS INTEREST "IN AND TO  ...  THE LEASES  ... AND TO THE STOCK OF
THE TEX-PENN....  THE BALANCE  ...  IS TO BE RETAINED UNTIL THE FINAL
ADJUSTMENT OF THE TAXES AND THE AFFAIRS OF  ...  TEX-PENN  ...  AT THE
CONCLUSION OF WHICH THE SAID BALANCE IS TO BE PAID TO ME, LESS MY
PROPORTIONATE SHARE OF SAID EXPENSES."  KIRKLAND AND LANTZ DIED BEFORE
THE HEARING.  WRATHER TESTIFIED THAT HE ATTACHED NO GREAT IMPORTANCE TO
THE FORM OF THE RECEIPT; THAT HE KNEW THERE HAD BEEN IN FORM SEPARATE
TRANSFERS OF THE LEASE INTERESTS AND THE TEX-PENN STOCK BUT THAT HE AND
HIS ASSOCIATES CONSIDERED ONLY THE ULTIMATE OBJECTIVE. 

BENEDUM AND PARRIOTT IN THEIR 1919 INCOME TAX RETURNS REPORTED THEIR
OWN PROFITS FROM THE SALE OF THEIR LEASE INTERESTS UPON THE BASIS OF
THE TOTAL PRICE OF $8,650,000.  TEX-PENN'S RETURN STATED THAT IT HAD
SOLD ITS ASSETS FOR $350,000 CASH AND SHARES OF STOCK.  IT ALSO STATED
THAT THE COST OF THE ASSETS SOLD WAS $2,359,205.69, FROM WHICH IT
DEDUCTED $350,000, LEAVING $2,009,205.69, AND THAT AMOUNT WAS
DESIGNATED "VALUE OF STOCK."  NEITHER THE $350,000 NOR THE STATED
"VALUE OF STOCK" RECEIVED WAS INCLUDED IN GROSS INCOME.  A SCHEDULE
ATTACHED TO THE RETURN STATED THAT THE CASH CONSIDERATION WAS ACCOUNTED
FOR IN THE RETURN, AND THAT THE "NO PAR VALUE STOCK" RECEIVED WAS NOT
TAXABLE INCOME UNDER SEC. 202(B) AND T.D. 2924. 

THE FOREGOING INCLUDES THE SUBSTANCE OF ALL THE FINDINGS OF
CIRCUMSTANTIAL FACTS MATERIAL TO THE QUESTION UNDER CONSIDERATION. 
THEY MUST BE TAKEN AS ESTABLISHED IF SUPPORTED BY SUBSTANTIAL
EVIDENCE.  HELVERING V. RANKIN, 295 U.S. 123, 131.  OLD MISSION CEMENT
CO. V. HELVERING, 293 U.S. 289, 294.  BURNET V. LEININGER, 285 U.S.
136, 138-139.  PHILLIPS V. COMMISSIONER, 283 U.S. 589, 600.  OLD COLONY
TRUST CO. V. COMMISSIONER, 279 U.S. 716.  THERE IS NO SUGGESTION THAT
THEY ARE NOT AMPLY SUSTAINED.  IN ADDITION TO AND PRESUMABLY UPON THE
BASIS OF THESE FINDINGS, THE BOARD MADE ITS "ULTIMATE FINDING."  AND
UPON THAT DETERMINATION IT RULED THAT THE TRANSACTION WAS NOT WITHIN
THE NON-RECOGNITION PROVISIONS OF SEC. 202(B).  THE ULTIMATE FINDING IS
A CONCLUSION OF LAW OR AT LEAST A DETERMINATION OF A MIXED QUESTION OF
LAW AND FACT.  IT IS TO BE DISTINGUISHED FROM THE FINDINGS OF PRIMARY,
EVIDENTIARY OR CIRCUMSTANTIAL FACTS.  IT IS SUBJECT TO JUDICIAL REVIEW
AND, ON SUCH REVIEW, THE COURT MAY SUBSTITUTE ITS JUDGMENT FOR THAT OF
THE BOARD.  HELVERING V. RANKIN, UBI SUPRA.    TREATING THE TRANSACTION
AS A PART OF REORGANIZATION, MERGER OR CONSOLIDATION, THE BOARD
CONCLUDED THAT CASH CONSTITUTED A PART OF THE CONSIDERATION.  THE
OPINION REFERS TO WRITINGS ABOVE MENTIONED AND EMPHASIZES THEIR
PROVISIONS THAT STATE OR INDICATE THAT THE CONSIDERATION WAS OR DID
INCLUDE CASH AND STOCK.  THE DOCUMENTS CITED ARE THE AGREEMENT FOR THE
TRANSFER OF TEX-PENN'S ASSETS TO TRANSCONTINENTAL, THE OFFER TO TEX
PENN, THE RESOLUTION OF ITS DIRECTORS ACCEPTING THE OFFER AND DIRECTING
PAYMENT OF THE $350,000 TO ITS TREASURY.  HOLLIDAY'S LETTER DIRECTING
TRANSCONTINENTAL SO TO PAY, TRANSCONTINENTAL'S CHECK FOR THAT AMOUNT TO
TEX-PENN AND THE LATTER'S TAX RETURN. 

BUT THE BOARD'S FINDINGS OF WHAT WAS ACTUALLY DONE SHOW THAT,
PURSUANT TO DIRECTION OF THE INDIVIDUALS SELLING LEASE INTERESTS,
TRANSCONTINENTAL ADVANCED TO TEX-PENN $350,000 AND DEDUCTED THAT AMOUNT
FROM THE PRICE OF THE LEASE INTERESTS.  THE FINDINGS ALSO SHOW THAT,
FOR THE PART OF THAT AMOUNT REMAINING AFTER PAYMENT OF ITS DEBTS, TEX
PENN ACCOUNTED TO THE INDIVIDUALS. 

AS INDIRECTLY SHOWING THAT THE $350,000 CONSTITUTED PART OF THE
CONSIDERATION FOR TRANSFER OF TEX-PENN ASSETS, THE OPINION CITES THE
ENTRY IN THE "PARRIOTT ATTORNEY" ACCOUNTS SHOWING THAT THE EFFECT OF
THE PAYMENT OF THAT SUM TO TEX-PENN WAS TO REDUCE THE SALE PRICE OF THE
INTEREST IN THE LEASES FROM $9,000,000 TO $8,650,000, THE ENTRIES
DISTRIBUTING THAT AMOUNT TO THE FIVE INDIVIDUALS, AND THE TAX RETURNS
OF BENEDUM, PARRIOTT AND TEX-PENN. 

PETITIONER DOES NOT BRING FORWARD THESE ENTRIES OR THE TAX RETURNS OF
BENEDUM AND PARRIOTT TO SUPPORT THE BOARD'S ULTIMATE FINDING NOW UNDER
CONSIDERATION.  MANIFESTLY, THE ENTRIES REFERRED TO IN THE BOARD'S
OPINION ARE OPPOSED TO ITS CONCLUSION.  AS WILL MORE FULLY APPEAR, UPON
AN EXAMINATION OF THEM LATER TO BE MADE, THE FINDINGS OF DETAILS MAKE
IT PLAIN THAT THE $350,000 WAS A PART OF THE CONSIDERATION PAID FOR THE
INDIVIDUALLY OWNED LEASE INTERESTS AND LEAVE NO GROUND FOR ANY OTHER
INFERENCE. 

THE BOARD'S OPINION SHOWS THAT BOTH PARTIES RELIED ON ART. 1567 AS A
CORRECT INTERPRETATION OF THE STATUTE.  THE BOARD HELD (P. 959) THAT IT
"REQUIRES, AS A CONDITION OF NONRECOGNITION OF GAIN, THAT THE SOLE
CONSIDERATION BE STOCK OR SECURITIES  ... THE WRITTEN AGREEMENTS HEREIN
INDICATE CLEARLY THAT THERE WAS A CASH CONSIDERATION TO TEX-PENN OF
$350,000.  WE ARE NOT CONVINCED BY THE ORAL EVIDENCE THAT THAT WAS NOT
A FACT.  ACCORDINGLY, WE HOLD THAT THE PETITIONERS HAVE NOT BROUGHT
THEMSELVES WITHIN SECTION 202(B)  ...  AND ARTICLE 1567  ...  SO AS TO
ESCAPE RECOGNITION OF GAIN." 

THE OPINION OF THE CIRCUIT COURT OF APPEALS, AFTER DISCUSSION OF
PRIMARY OR EVIDENTIARY FACTS FOUND BY THE BOARD, STATES, 83 F.(2D) AT
P. 522:  "A CONSIDERATION OF ALL THE DOCUMENTARY EVIDENCE DRIVES US TO
THE CONCLUSION THAT THE $350,000 WAS NOT CONSIDERATION PASSING FROM
TRANSCONTINENTAL TO TEX-PENN, BUT WAS MONEY FURNISHED BY THE LESSEES AS
INDIVIDUALS TO PAY THE DEBTS OF TEX-PENN SO THAT THE TRANSACTION MIGHT
BE MADE ACCORDING TO AGREEMENT  ...  IN FORM THE DOCUMENTS UPON WHICH
THE BOARD OF TAX APPEALS RELIED STATED THAT THE $350,000 WAS CORPORATE
CONSIDERATION PASSING FROM TRANSCONTINENTAL, BUT IN FACT, IT WAS NOT,
AND THE RULE IS WELL SETTLED THAT IN DETERMINING TAX LIABILITY, TAXING
AUTHORITIES MUST LOOK THROUGH FORM TO FACT AND SUBSTANCE.  IT HAS BEEN
A LONG TIME SINCE THESE TRANSACTIONS TOOK PLACE AND MOST OF THE PARTIES
WHO WERE INTERESTED IN THEM ARE DEAD, BUT EVERY LIVING PERSON WHO WAS
IN ANY WAY CONNECTED WITH THEM TESTIFIED WITHOUT CONTRADICTION THAT THE
$350,000 WAS PAID BY THE FIVE LESSEES AND NOT BY TRANSCONTINENTAL." 

THE VALIDITY OF THE ULTIMATE FINDING ABOVE QUOTED IS TO BE TESTED BY
WHAT IN FACT WAS DONE RATHER THAN BY THE MERE FORM OF WORDS USED IN THE
WRITINGS EMPLOYED.  UNITED STATES V. PHELLIS, 257 U.S. 156, 168. 
CURRAN V. COMMISSIONER, 49 F.(2D) 129, 131.  THE BOARD'S FINDINGS OF
CIRCUMSTANTIAL FACTS DEFINITELY SHOW THE SUBSTANCE OF THE TRANSACTION
AS ACTUALLY CONSUMMATED.  SUMMARILY STATED, THE DETAILS OF CONTROLLING
SIGNIFICANCE ARE THESE: 

THE BANKERS BOUGHT FROM TRANSCONTINENTAL 725,000 SHARES OF ITS STOCK
FOR $20,225,000.  TRANSCONTINENTAL PAID AND ISSUED ITS STOCK:

                            CASH  SHARES 

RIVERSIDE EASTERN..........  $1,250,000     41,666 

RIVERSIDE WESTERN..........   1,250,000     41,667 

PITTSBURG-TEXAS............                158,833 

BENEDUM AND PARRIOTT.......   3,400,000  1,007,834 

PARRIOTT, ATTORNEY.........   5,250,000 

TEX-PENN...................     350,000

                          ------------ ----------

                     $11,500,000  1,250,000 

INCLUDED IN THE TOTAL WAS $9,000,000 TO PAY FOR THE INDIVIDUALLY
OWNED FIVE-EIGHTHS INTEREST IN THE LEASES AND $2,500,000 TO RETIRE
PREFERRED STOCK OF RIVERSIDE EASTERN AND RIVERSIDE WESTERN, AND
$5,250,000 TO PAY FOR SEVEN-SIXTEENTHS OF THE FIVE-EIGHTHS INTEREST:
$2,250,000 TO KIRKLAND AND $1,500,000 EACH TO LANTZ AND WRATHER.  THE
REMAINING $3,750,000 WAS TO PAY BENEDUM AND PARRIOTT FOR THEIR NINE
SIXTEENTHS:  $1,500,000 TO BENEDUM FOR HIS SIX-SIXTEENTHS AND
$2,250,000 TO PARRIOTT FOR HIS THREE-SIXTEENTHS. 

THE $350,000 RECEIVED BY TEX-PENN FROM TRANSCONTINENTAL WAS TO BE
USED TO THE EXTENT NEEDED TO PAY TEX-PENN'S DEBTS IN ORDER THAT ITS
ASSETS SHOULD BE FREE AND CLEAR OF LIABILITIES.  BUT NO PART OF THAT
AMOUNT WAS BORNE BY TRANSCONTINENTAL.  UPON AUTHORIZATION OF BENEDUM
AND PARRIOTT, IT DEDUCTED THAT AMOUNT FROM THE $3,750,000 PAYABLE BY IT
TO THEM.  AND, BY ARRANGEMENT AMONG THEMSELVES, THE FIVE INDIVIDUALS
WERE CHARGEABLE WITH THE $350,000 ACCORDING TO THEIR INTERESTS IN THE
LEASES: 

BENEDUM.................................. $131,250 

PARRIOTT.................................   65,625 

KIRKLAND                       65,625 

LANTZ....................................   43,750 

WRATHER..................................   43,750

                                        ---------

                                        $350,000 

THE AMOUNT SO ADVANCED EXCEEDED WHAT WAS REQUIRED TO PAY TEX-PENN'S
DEBTS BY $55,255.24.  AND TO THE FIVE INDIVIDUALS THAT AMOUNT WAS
ACCOUNTED FOR: 

BENEDUM................................ $20,720.73 

PARRIOTT...............................  10,360.35 

KIRKLAND...............................  10,360.35 

LANTZ..................................   6,906.90 

WRATHER................................   6,906.90

                       -----------

               $55,255.23 

THE STATEMENT BELOW SHOWS IN COLUMN (1) THE AMOUNTS THAT, BUT FOR THE
ADVANCE OF $350,000 TO TEX-PENN, EACH OF THE INDIVIDUALS WOULD HAVE
RECEIVED DIRECTLY FROM TRANSCONTINENTAL IN CASH FOR HIS INTEREST IN THE
LEASES; IT SHOWS IN COLUMN (2) THE AMOUNT THAT WAS RECEIVED BY EACH
AFTER DEDUCTING HIS SHARE OF THE AMOUNT ACTUALLY USED TO DISCHARGE
LIABILITIES OF TEX-PENN. 

                         (1)        (2) 

BENEDUM................. $1,500,000  $1,389,470.73 

PARRIOTT................  2,250,000   2,194,735.35 

KIRKLAND................  2,250,000   2,194,735.35 

LANTZ...................  1,500,000   1,463,156.90 

WRATHER.................  1,500,000   1,463,156.90

                       -----------    -----------

                       $9,000,000  $8,705,255.23 

THE BOARD'S FINDINGS OF EVIDENTIARY DETAILS NOT ONLY FAIL TO SUPPORT,
BUT DEFINITELY NEGATIVE, ITS CONCLUSION THAT THE CONSIDERATION RECEIVED
BY TEX-PENN IN EXCHANGE FOR ITS ASSETS INCLUDED $350,000 IN CASH. 

ESSENTIAL TO THE PROJECT WAS THE TRANSFER TO TRANSCONTINENTAL OF TEX
PENN ASSETS FREE FROM CLAIMS, AND EQUALLY INDISPENSABLE WAS THE
TRANSFER OF THE INDIVIDUALLY OWNED LEASE INTERESTS.  TEX-PENN NEEDED
MONEY TO SATISFY DEMANDS OF ITS CREDITORS.  SHOULD IT BE UNABLE TO FREE
ITS PROPERTY FROM LIABILITY, THE ENTIRE ENTERPRISE MIGHT FAIL.  IN THAT
EVENT, THE INDIVIDUALS WOULD LOSE THE SALE OF THEIR LEASE INTERESTS. 
AND SO, THEY DECIDED TO PROVIDE THE CASH NEEDED BY TEX-PENN TO CLEAR
ITS ASSETS AND FOR THAT PURPOSE THEY CAUSED TRANSCONTINENTAL TO ADVANCE
TEX-PENN THE $350,000 AND DEDUCT IT FROM $9,000,000, THE PRICE IT WAS
TO PAY THEM FOR THEIR LEASE INTERESTS.  THE EXCESS, $55,255.24, WAS
RATABLY DISTRIBUTED AS SHOWN ABOVE.  NO PART OF THE $350,000 WAS
INCLUDED IN OR HAD ANY RELATION TO THE CONSIDERATION FOR THE TRANSFER
OF THE TEX-PENN ASSETS.  IN LEGAL EFFECT, THE DETAILS FOUND BY THE
BOARD TO HAVE BEEN CARRIED OUT ARE NOT TO BE DISTINGUISHED FROM A
DIRECT ADVANCE BY THE FIVE INDIVIDUALS TO TEX-PENN OF THE MONEY
REQUIRED TO PAY ITS DEBTS.  UNQUESTIONABLY, SUCH AN ADVANCE WOULD NOT
CONSTITUTE CONSIDERATION RECEIVED BY TEX-PENN.  AS AGAINST THE BOARD'S
FINDINGS SHOWING WHAT WAS ACTUALLY DONE IN CONSUMMATION OF THE
TRANSACTION, NO WEIGHT AS EVIDENCE CAN BE GIVEN TO MERE RECITALS,
DIRECTIONS, ENGAGEMENTS AND ADMISSIONS OF RESPONDENTS CONTAINED IN THE
DOCUMENTS RELIED ON BY THE BOARD.  IT SHOULD HAVE HELD THAT THE
TRANSCONTINENTAL STOCK WAS THE SOLE CONSIDERATION FOR THE TRANSFER OF
THE TEX-PENN ASSETS.  THE CIRCUIT COURT OF APPEALS RIGHTLY HELD THAT
THE RULING TO THE CONTRARY WAS ERRONEOUS. 

2.  THE BOARD'S SECOND ULTIMATE FINDING IS (P. 950).  "THE CASH
RECEIVED BY WRATHER, LANTZ AND KIRKLAND FROM TRANSCONTINENTAL WAS
CONSIDERATION FOR BOTH THEIR STOCK IN TEX-PENN AND THEIR INTERESTS IN
THE DUKE-KNOLES LEASES."  THE BOARD (P. 959) DEEMED THAT CONCLUSION AN
ADDITIONAL GROUND FOR ITS RULING THAT THE TRANSACTION IS NOT WITHIN THE
NON-RECOGNITION PROVISIONS OF SEC. 202(B).  IN SUPPORT OF THAT VIEW THE
COMMISSIONER MAINTAINS THAT "THE NOMINAL SALE OF STOCK, THE TRANSFER OF
THE ASSETS OF TEX-PENN, AND THE SALE OF THE INDIVIDUAL INTERESTS IN THE
LEASES, CONSTITUTED A SINGLE INDIVISIBLE TRANSACTION." 

BUT THE CIRCUMSTANTIAL FACTS CLEARLY NEGATIVE THIS ULTIMATE FINDING. 
KIRKLAND, LANTZ AND WRATHER SOLD THEIR TEX-PENN STOCK TO BENEDUM AND
PARRIOTT AND THEIR LEASE INTERESTS TO TRANSCONTINENTAL.  THE STOCK WAS
SOLD AND DELIVERED BEFORE THE ASSIGNMENT OF THE LEASE INTERESTS WAS
MADE.  THE TRANSFER ON THE COMPANY'S STOCK BOOK WAS EFFECTED, AND THEIR
CONNECTION AS STOCKHOLDERS AND DIRECTORS WAS TERMINATED, WHILE THE
LEASE INTERESTS WERE BEING HELD UNTIL PAID FOR BY TRANSCONTINENTAL. 
THE STIPULATION THAT, IF PAYMENT FOR THEIR LEASE INTERESTS WAS NOT MADE
BY AUGUST 1, THE ASSIGNMENT OF THEIR SHARES OF STOCK WOULD BE RETURNED,
DID NOT MAKE THE TWO SALES A SINGLE OR INDIVISIBLE TRANSACTION. 
ASSUMING THAT KIRKLAND, LANTZ AND WRATHER WOULD NOT HAVE SOLD THEIR TEX
PENN STOCK WITHOUT ALSO SELLING THEIR LEASE INTERESTS, THAT FACT WOULD
NOT CONVERT THE TWO SALES INTO ONE.  THE PURPOSE OF THE STIPULATION IS
PLAIN.  IF TRANSCONTINENTAL DID NOT PAY FOR AND TAKE THE LEASE
INTERESTS AND TEX-PENN CONTINUED TO OPERATE THE PROPERTIES, THEY WOULD
AGAIN BECOME STOCKHOLDERS AND HAVE A VOICE IN THE OPERATION. 

ON THE POINT UNDER CONSIDERATION, THE COMMISSIONER'S POSITION BEFORE
THE BOARD IS NOT IN HARMONY WITH HIS CONTENTION HERE.  THERE HE MADE
FOUR COMPUTATIONS:  TWO WERE OF TEX-PENN TAXES, THE OTHER TWO WERE
RESPECTIVELY THOSE OF THE OTHER RESPONDENTS.  IN ALL HIS CALCULATIONS,
HE ATTRIBUTED TO THE CONSIDERATION FOR TEX-PENN ASSETS THE 1,007,834
SHARES OF TRANSCONTINENTAL AND TO THE BENEDUM AND PARRIOTT LEASE
INTERESTS THEIR SHARES OF THE CASH, $9,000,000, LESS THE AMOUNT THEREOF
USED TO PAY TEX-PENN DEBTS.  ALL THESE SHARES WENT TO BENEDUM AND
PARRIOTT WHO OWNED ALL THE TEX-PENN STOCK.  THE DEFICIENCIES CLAIMED BY
THE COMMISSIONER AND THE AMOUNTS DETERMINED BY THE BOARD REST UPON THE
FACT THAT BENEDUM AND PARRIOTT AS THE ONLY STOCKHOLDERS OF TEX-PENN
BECAME THE OWNERS OF THE 1,007,834 TRANSCONTINENTAL SHARES.  AND, AS
SHOWN BY THE BOARD'S FINDINGS, THE BALANCE OF THE CASH WITHOUT MORE
WENT TO KIRKLAND, LANTZ AND WRATHER FOR THEIR LEASE INTERESTS. 

IT IS IMMATERIAL WHETHER $30 WAS SUFFICIENT FULLY TO COMPENSATE THEM
FOR THEIR TEX-PENN STOCK.  THE FINDINGS SHOW THE TRANSFER WAS VALID. 
INVALIDATING DISPARITY BETWEEN WORTH AND CONSIDERATION IS NOT
DISCLOSED, AND MAY NOT BE ASSUMED.  INDEED, THE COMMISSIONER'S BRIEF
STATES THAT TEX-PENN WAS ORGANIZED TO DEVELOP THE LEASES WHICH WERE THE
PERSONAL PROPERTY OF ITS FIVE STOCKHOLDERS; IT "WAS NOT EXPECTED TO
OPERATE AT A PROFIT  ...  AND ACTUALLY IT COULD NOT OPERATE AT A PROFIT
... IT WAS USEFUL CHIEFLY IN CONNECTION WITH THE FIVE-EIGHTHS
ROYALTIES IN THE DUKE-KNOLES FIELD HELD INDIVIDUALLY BY ITS
STOCKHOLDERS."  AND RESPONDENTS CALL ATTENTION TO FINDINGS DISCLOSING
OPERATING RESULTS THAT POINT IN THE SAME DIRECTION. 

WE FIND NOTHING IN THE CIRCUMSTANTIAL FACTS FOUND OR IN THE EVIDENCE
TO SUPPORT THE BOARD'S CONCLUSION THAT KIRKLAND, LANTZ AND WRATHER
RECEIVED FROM TRANSCONTINENTAL ANY CASH FOR THEIR STOCK IN TEX-PENN. 
IT CANNOT BE SUSTAINED. 

3.  THE COMMISSIONER SEEKS REVERSAL UPON THE GROUNDS THAT THE
TRANSACTION WAS NOT A TAX-EXEMPT REORGANIZATION BECAUSE TEX-PENN SOUGHT
TO REALIZE A PROFIT RATHER THAN MERELY TO CHANGE THE FORM OF ITS
OWNERSHIP AND THAT SEC. 202(B) DOES NOT EXEMPT FROM TAXATION EXCHANGES
OF PROPERTY FOR STOCK.  SPECIFICALLY HE ARGUES THAT, ASSUMING THAT THE
TRANSCONTINENTAL STOCK WAS THE SOLE PROPERTY EXCHANGED FOR TEX-PENN
ASSETS, THE TRANSACTION WAS NOT WITHIN THE NON-RECOGNITION OF GAINS
PROVISION.  CONCEDEDLY, THIS CONTENTION IS CONTRARY TO THE
INTERPRETATION PUT UPON SEC. 202(B) BY ART. 1567 WHICH WAS PROMULGATED
SEPTEMBER 26, 1919 BY THE COMMISSIONER WITH THE APPROVAL OF THE
SECRETARY OF THE TREASURY AND HAS SINCE BEEN FOLLOWED.  FN4  THE
PARTIES PRESENTED THEIR RESPECTIVE CLAIMS TO THE BOARD AND TO THE LOWER
COURT ON THE THEORY THAT, IF NEITHER TEX-PENN NOR ITS STOCKHOLDERS AS
SUCH RECEIVED ANY CASH FROM TRANSCONTINENTAL, THE TRANSACTION WOULD BE
WITHIN SEC. 202(B).  THE COMMISSIONER'S NOTICES OF DEFICIENCY DO NOT
SUGGEST THE CONSTRUCTION FOR WHICH HE NOW CONTENDS.  HE SOUGHT NO
RULING UPON THE QUESTION FROM THE BOARD OR THE LOWER COURT AND IS
THEREFORE NOT ENTITLED TO HAVE IT DECIDED HERE.  HELVERING V. MINNESOTA
TEA CO., 296 U.S. 378, 380.  THE TAXPAYERS WERE ENTITLED TO KNOW THE
BASIS OF LAW AND FACT ON WHICH THE COMMISSIONER SOUGHT TO SUSTAIN THE
DEFICIENCIES.  HIS FAILURE EARLIER TO PRESENT THE QUESTION LEAVES THIS
COURT WITHOUT THE ASSISTANCE OF DECISION BELOW.  FN5  HIS PETITIONS FOR
THESE WRITS DID NOT PRESENT THE QUESTION TO THIS COURT.  WE ARE NOT
CALLED ON TO CONSIDER THE CONSTRUCTION OF SEC. 202(B) NOW PROPOSED. 
FN6 

4.  AS THE SOLE CONSIDERATION TO TEX-PENN WAS TRANSCONTINENTAL SHARES
AND AS KIRKLAND, LANTZ AND WRATHER RECEIVED FROM TRANSCONTINENTAL NO
CASH FOR THEIR TEX-PENN STOCK, THE TRANSACTION IS WITHIN THE NON
RECOGNITION OF GAINS PROVISIONS.  THE JUDGMENTS MUST THEREFORE BE
AFFIRMED. 

5.  THE COURT IS ALSO OF OPINION THAT THE JUDGMENTS MUST BE AFFIRMED
UPON THE GROUND THAT IN THE PECULIAR CIRCUMSTANCES OF THIS CASE, THE
SHARES OF TRANSCONTINENTAL STOCK, REGARD BEING HAD TO THEIR HIGHLY
SPECULATIVE QUALITY AND TO THE TERMS OF A RESTRICTIVE AGREEMENT MAKING
A SALE THEREOF IMPOSSIBLE, DID NOT HAVE A FAIR MARKET VALUE, CAPABLE OF
BEING ASCERTAINED WITH REASONABLE CERTAINTY, WHEN THEY WERE ACQUIRED BY
THE TAXPAYERS. 

IN THE ABSENCE OF SUCH VALUE, THE OWNERSHIP OF THE SHARES DID NOT LAY
THE BASIS FOR THE COMPUTATION OF A GAIN AT THE TIME THEY WERE RECEIVED,
OR FOR A TAX AS OF THAT DATE UNDER THE APPLICABLE STATUTE.  SEC.
202(B).  TREASURY REGULATIONS 45, ART. 1563.  AFFIRMED. 

FN1  "IN GENERAL, WHERE TWO (OR MORE) CORPORATIONS UNITE THEIR
PROPERTIES, BY EITHER (A) THE DISSOLUTION OF CORPORATION B AND THE SALE
OF ITS ASSETS TO CORPORATION A, OR (B) THE SALE OF ITS PROPERTY BY B TO
A AND THE DISSOLUTION OF B, OR (C) THE SALE OF THE STOCK OF B TO A AND
THE DISSOLUTION OF B, OR (D) THE MERGER OF B INTO A, OR (E) THE
CONSOLIDATION OF THE CORPORATIONS, NO TAXABLE INCOME IS RECEIVED FROM
THE TRANSACTION BY A OR B OR THE STOCKHOLDERS OF EITHER, PROVIDED THE
SOLE CONSIDERATION RECEIVED BY B AND ITS STOCKHOLDERS IN (A), (B), (C),
AND (D) IS STOCK OR SECURITIES OF A, AND BY A AND B AND THEIR
STOCKHOLDERS IN (E) IS STOCK OR SECURITIES OF THE CONSOLIDATED
CORPORATION, IN ANY CASE OF NO GREATER AGGREGATE PAR OR FACE VALUE THAN
THE OLD STOCK AND SECURITIES SURRENDERED...." 

FN2  THE TERMS OF THE TRANSFERS WERE EVIDENCED BY TWO LETTERS TO
PARRIOTT ACCOMPANYING DELIVERY OF THE ASSIGNMENTS.  WORDS WITHIN
BRACKETS WERE IN THE FIRST LETTER BUT NOT IN THE SECOND; WORDS IN
ITALICS WERE IN THE SECOND LETTER BUT NOT IN THE FIRST. 

"IN CONNECTION WITH THE ASSIGNMENT WE HAVE EXECUTED TODAY,
TRANSFERRING TO  ... TRANSCONTINENTAL  ...  ALL OF OUR RIGHT, TITLE AND
INTEREST IN THE OIL AND GAS LEASES....  WE ARE ASSIGNING AND HAND YOU
HEREWITH OUR SHARES OF STOCK  ...  TEX-PENN  ...  WHICH WE HEREBY AGREE
TO SELL TO YOU AND M. L. BENEDUM JOINTLY FOR A CONSIDERATION OF $5.00
PAYABLE TO EACH OF US.  IF FOR ANY REASON THE PROPOSED ORGANIZATION OF
...  TRANSCONTINENTAL  ...  SHOULD NOT GO THROUGH, THIS STOCK IS TO BE
RETURNED TO US. 

"WE UNDERSTAND THAT YOU AND MR. BENEDUM ARE TRANSFERRING TO ...
TRANSCONTINENTAL  ...  A CONSIDERABLE AMOUNT OF PROPERTY THAT YOU AND
HE OWN  ...  INCLUDING YOUR INTERESTS IN THE TEX-PENN LEASES, AND THAT
YOU AND HE ARE TO BE PAID FOR ALL THESE PROPERTIES PARTLY IN CASH AND
PARTLY IN STOCK OF  ...  TRANSCONTINENTAL....  OUR ENTIRE INTERESTS IN
THE STOCK OF THE TEX-PENN COMPANY AND IN THE LEASES COVERED BY THE
ASSIGNMENT ABOVE REFERRED TO ARE PAID FOR IN FULL BY THE ($5,250,000
THAT IS TO BE PAID US IN THIS TRANSACTION.)  CONSIDERATIONS AGREED UPON
BETWEEN US." 

FN3  THIS CORRECTED AN ENTRY OF AUGUST 1 WHICH CHARGED TEX-PENN WITH
THE $350,000 AND CREDITED $140,000 TO BENEDUM AND $210,000 TO PARRIOTT
WITH THE EXPLANATION THAT THE $350,000 HAD BEEN TAKEN OUT OF THEIR
SHARE OF THE PURCHASE PRICE OF THE DUKE-KNOLES PROPERTIES.  THE
CORRECTING ENTRY (DECEMBER 31, 1919) IS AS FOLLOWS: 

W. E. WRATHER..............................  $43,750.00 

J. B. LANTZ................................ 43,750.00 

J. L. KIRKLAND.............................   65,625.00 

F. B. PARRIOTT.............................   65,625.00

                                          ------------

    TEX-PENN OIL CO...................... $350,000.00 

TO CORRECT  ...  ENTRY  ...  DISTRIBUTING AMOUNT PAID BY TEX-PENN BY
TRANSCONTINENTAL  ...  AND DEDUCTED FROM M.L.B. BY TRANSCONTINENTAL
...  AND DEDUCTED FROM M.L.B. (BENEDUM) AND F.B.P. (PARRIOTT) CASH
PROCEEDS OF SALE OF DUKE-KNOLES PROPERTY TO TRANSCONTINENTAL  ...  AS
THIS AMOUNT WAS TO BE APPORTIONED AGAINST THE SALE PRICE RECEIVED BY
ALL THE INDIVIDUAL INTERESTS REDUCING SUCH SALE PRICE OF 5/8 INT. PER
AGREEMENT TO FOLLOWING: 

W. E. WRATHER............................ $1,456,250.00 

J. B. LANTZ..............................  1,456,250.00 

J. L. KIRKLAND...........................  2,184,375.00 

F. B. PARRIOTT...........................  2,184,375.00 

M. L. BENEDUM............................  1,368,750.00

                         --------------

   TOTAL............................... $8,650,000.00 

FN4  CF. BREWSTER V. GAGE, 280 U.S. 327, 336.  FAWCUS MACHINE CO. V.
UNITED STATES, 282 U.S. 375, 378.  FEDERAL LAND BANK V. WARNER, 292
U.S. 53, 55. 

FN5  CF. VIRGINIAN RY. V. UNITED STATES, 272 U.S. 658, 675.  LAWRENCE
V. ST. LOUIS-SAN FRANCISCO RY., 274 U.S. 588, 596.  HAMMOND V. SCHAPPI
BUS LINE, 275 U.S. 164, 171-172.  BALTIMORE & OHIO R. CO. V. UNITED
STATES, 279 U.S. 781, 787.  BEAUMONT, S.L. & W. RY. V. UNITED STATES,
282 U.S. 74, 86.  PUBLIC SERVICE COMM'N V. WISCONSIN TELEPHONE CO., 289
U.S. 67, 69-70. 

FN6  ALICE STATE BANK V. HOUSTON PASTURE CO., 247 U.S. 240, 242. 
WEBSTER CO. V. SPLITDORF CO., 264 U.S. 463, 464.  STEELE V. DRUMMOND,
275 U.S. 199, 203.  GUNNING V. COOLEY, 291 U.S. 90, 98.  JOHNSON V.
MANHATTAN RY. CO., 289 U.S. 479, 494.  ZELLERBACH PAPER CO. V.
HELVERING, 293 U.S. 172, 182.  HELVERING V. TAYLOR, 293 U.S. 507, 511. 
CLARK V. WILLIARD, 294 U.S. 211, 216.  MOREHEAD V. N.Y. EX REL.
TIPALDO, 298 U.S. 587, 605. 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THESE CASES. 

MR. JUSTICE CARDOZO CONCURS ON THE GROUND LAST STATED IN THE
OPINION. 
..END :















UNITED STATES V. MADIGAN, 300 U.S. 500 


NO. 562.  ARGUED MARCH 10, 1937.  - DECIDED MARCH 29, 1937.  - 85 F.(2D)
609, REVERSED. 


1.  THE PROVISIONS OF SEC. 305 OF THE WORLD WAR VETERANS' ACT, AS
AMENDED, WHEREBY A POLICY WHICH HAS LAPSED WHILE THE INSURED WAS
SUFFERING FROM A COMPENSABLE DISABILITY FOR WHICH COMPENSATION WAS NOT
COLLECTED MAY BE REVIVED AND MATURED, PRO TANTO, IF THE INSURED HAS
BECOME PERMANENTLY DISABLED, BY APPLYING THE UNCOLLECTED COMPENSATION
AS PREMIUMS, DO NOT EXTEND TO AN EARLIER POLICY WHICH WAS CONVERTED
INTO THE ONE THAT LAPSED.  P. 502. 

2.  IN THE CONGRESSIONAL LEGISLATION DEALING WITH THE SUBJECT,
VETERANS' INSURANCE CHANGED FROM ONE FORM TO ANOTHER IS TERMED
"CONVERTED."  P. 503. 

3.  NEITHER THE WORDS NOR THE LEGISLATIVE HISTORY OF SEC. 305 OF THE
ACT SUGGEST THAT THE PHRASE "CANCELED OR REDUCED INSURANCE" WAS
INTENDED TO INCLUDE INSURANCE ELSEWHERE DESCRIBED IN THE ACT AS
"CONVERTED," AT LEAST WHERE THE CONVERSION WAS NOT ACCOMPANIED BY A
REDUCTION OF THE POLICY.  P. 505. 

4.  THE HOLDER OF A CONVERTED POLICY IS NOT "ENTITLED" TO TOTAL
DISABILITY BENEFITS UNDER THE ORIGINAL POLICY, WITHIN THE MEANING OF
SEC. 307 OF THE ACT, AS AMENDED IN 1930, WHERE THE TOTAL DISABILITY DID
NOT OCCUR UNTIL AFTER THE CONVERSION.  P. 506. 

5.  SECTION 307 DOES NOT, EITHER BY ITS TERMS OR BY REASONABLE
IMPLICATION, EXTEND THE PRIVILEGES OF SEC. 305 TO CONVERTED INSURANCE. 
ITS LEGISLATIVE HISTORY DOES NOT DISCLOSE ANY PURPOSE TO AMEND, OR TO
DEPART FROM THE POLICY OF SEC. 305.  P. 506. 

6.  A CONSTRUCTION OF A NEW SECTION ADDED TO AN EXISTING STATUTE, AS
BY IMPLICATION MODIFYING A SETTLED CONSTRUCTION OF AN EARLIER SECTION,
IS NOT FAVORED.  P. 506. 

UNITED STATES V. MADIGAN. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 299 U.S. 538, TO REVIEW A JUDGMENT AFFIRMING A RECOVERY
OF TOTAL DISABILITY BENEFITS IN A SUIT ON A CONTRACT OF WAR RISK TERM
INSURANCE. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

RESPONDENT BROUGHT THIS SUIT IN THE DISTRICT COURT FOR SOUTHERN
CALIFORNIA TO RECOVER TOTAL PERMANENT DISABILITY BENEFITS UNDER A
CONTRACT OF WAR RISK TERM INSURANCE.  WHILE IN THE MILITARY SERVICE OF
THE UNITED STATES IN THE WORLD WAR, HE ACQUIRED A TERM POLICY OF WAR
RISK INSURANCE.  ON NOVEMBER 1, 1919, AVAILING HIMSELF OF THE BENEFITS
OF SEC. 404 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, C. 105,
40 STAT. 398, 410, HE CONVERTED HIS TERM INSURANCE INTO A TWENTY
PAYMENT LIFE POLICY OF UNITED STATES GOVERNMENT INSURANCE.  HE PAID
PREMIUMS ON THIS POLICY UNTIL JANUARY 31, 1920, WHEN IT WAS ALLOWED TO
LAPSE FOR NON-PAYMENT OF PREMIUMS.  ON THE DATE OF THE CONVERSION OF
HIS FIRST POLICY, HE WAS SUFFERING FROM A "COMPENSABLE DISABILITY,"
AND, AFTER THE LAPSE OF THE SECOND, ON JUNE 6, 1925, HE WAS RATED BY
THE VETERANS' BUREAU AS TOTALLY AND PERMANENTLY DISABLED.  AT THAT TIME
HE WAS ENTITLED TO DISABILITY COMPENSATION FROM THE GOVERNMENT IN THE
SUM OF $312.25. 

ON THE TRIAL IN THE DISTRICT COURT A JURY WAS WAIVED AND THE CASE WAS
HEARD ON AN AGREED STATEMENT OF FACTS.  THE COURT GAVE JUDGMENT FOR THE
RESPONDENT FOR PERMANENT DISABILITY BENEFITS UNDER HIS FIRST POLICY,
WITH RESPECT TO SO MUCH OF THE INSURANCE AS THE $312.25 OF DISABILITY
COMPENSATION, REMAINING UNCOLLECTED AT THE TIME OF TOTAL PERMANENT
DISABILITY, WOULD HAVE PURCHASED IF APPLIED TO THE PAYMENT OF PREMIUMS
DUE UPON THE ORIGINAL POLICY BETWEEN THE DATE OF ITS CONVERSION AND THE
DATE OF TOTAL DISABILITY.  THE COURT OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMED, 85 F.(2D) 609, HOLDING THAT RESPONDENT WAS ENTITLED, UNDER
SECS. 305, 307 OF THE WORLD WAR VETERANS' ACT, TO REVIVE THE ORIGINAL
TERM INSURANCE AND TO RECOVER UNDER IT THE PERMANENT DISABILITY
BENEFITS AWARDED BY THE TRIAL COURT.  WE GRANTED CERTIORARI BECAUSE OF
THE IMPORTANCE OF THE DECISION OF THE COURT OF APPEALS, WHICH CONFLICTS
WITH THE CONSISTENT RULINGS OF THE ADMINISTRATOR OF VETERANS' AFFAIRS,
AND AFFECTS, ADVERSELY TO THE GOVERNMENT, A LARGE NUMBER OF PENDING
INSURANCE CLAIMS. 

43 STAT. 624, 626, AS AMENDED JULY 2, 1926, C. 723, 44 STAT. 790, 799,
38 U.S.C. SEC. 516, APPLIES TO LAPSED, CANCELLED OR REDUCED INSURANCE
POLICIES.  IT PROVIDES: 

"WHERE ANY PERSON HAS HERETOFORE ALLOWED HIS INSURANCE TO LAPSE, OR
HAS CANCELED OR REDUCED ALL OR ANY PART OF SUCH INSURANCE, WHILE
SUFFERING FROM A COMPENSABLE DISABILITY FOR WHICH COMPENSATION WAS NOT
COLLECTED AND DIES OR HAS DIED, OR BECOMES OR HAS BECOME PERMANENTLY
AND TOTALLY DISABLED AND AT THE TIME OF SUCH DEATH OR PERMANENT TOTAL
DISABILITY WAS OR IS ENTITLED TO COMPENSATION REMAINING UNCOLLECTED,
THEN AND IN THAT EVENT SO MUCH OF HIS INSURANCE AS SAID UNCOLLECTED
COMPENSATION,  ...  WOULD PURCHASE IF APPLIED AS PREMIUMS WHEN DUE,
SHALL NOT BE CONSIDERED AS LAPSED, CANCELED OR REDUCED; AND THE UNITED
STATES VETERANS' BUREAU IS HEREBY AUTHORIZED AND DIRECTED TO PAY TO
SAID SOLDIER, OR HIS BENEFICIARIES, AS THE CASE MAY BE, THE AMOUNT OF
SAID INSURANCE  ..." 

SEC. 518, RELATES TO ALL INSURANCE POLICIES "HERETOFORE OR HEREAFTER
ISSUED, REINSTATED OR CONVERTED."  IT DECLARES THAT ALL SUCH POLICIES
SHALL BE INCONTESTABLE AND PROVIDES: 

"THAT THE INSURED UNDER SUCH CONTRACT OR POLICY MAY, WITHOUT
PREJUDICING HIS RIGHTS, ELECT TO MAKE CLAIM TO THE BUREAU OR TO BRING
SUIT UNDER SECTION 19 OF THIS ACT ON ANY PRIOR CONTRACT OR POLICY, AND
IF FOUND ENTITLED THERETO, SHALL, UPON SURRENDER OF ANY SUBSEQUENT
CONTRACT OR POLICY, BE ENTITLED TO PAYMENTS UNDER THE PRIOR CONTRACT OR
POLICY  ..." 

RESPONDENT ELECTED TO CLAIM UNDER HIS ORIGINAL POLICY, PRESUMABLY
BECAUSE THE RATE OF PREMIUMS FOR THE TERM INSURANCE WAS LOWER THAN FOR
THE TWENTY-PAYMENT LIFE POLICY, AND THE $312.25 OF DISABILITY
COMPENSATION WOULD PURCHASE A LARGER AMOUNT OF THE FORMER TYPE THAN OF
THE LATTER.  THE GOVERNMENT ADMITS THAT THE RESPONDENT IS ENTITLED,
UNDER SEC. 305, TO REVIVE THE TWENTY-PAYMENT LIFE POLICY WHICH HAS
LAPSED, BUT CONTENDS THAT HE IS NOT ENTITLED TO REVIVE THE EARLIER TERM
INSURANCE WHICH HE HAD CONVERTED, BECAUSE SEC. 305 OMITS ANY REFERENCE
TO CONVERTED INSURANCE, SUCH AS APPEARS IN SEC. 307. 

ALL WAR RISK POLICIES WERE REQUIRED TO BE FOR TERM INSURANCE BY SEC.
404 OF THE WAR RISK INSURANCE ACT, BUT THAT SECTION PERMITTED
CONVERSION OF THE INSURANCE INTO OTHER FORMS, AFTER TERMINATION OF THE
WAR.  WHEN CONGRESS DESIRED TO LEGISLATE ABOUT ONE FORM OF INSURANCE
THUS CHANGED INTO ANOTHER, IT EXPLICITLY USED THE DESCRIPTIVE TERM
"CONVERTED."  FN1  THE OMISSION OF ANY REFERENCE TO CONVERTED INSURANCE
IN SEC. 305 INDICATES THAT THE PRIVILEGE OF REVIVING A LAPSED,
CANCELLED OR REDUCED POLICY, WAS NOT INTENDED TO EXTEND TO AN EARLIER
POLICY CONVERTED INTO ANOTHER, WHOSE LAPSE IS THE CONDITION OF THE
REVIVAL.  SUCH MUST BE TAKEN TO BE THE MEANING IF IT IS CONSISTENT WITH
THE PURPOSES OF THE SECTION, DISCLOSED BY ITS LEGISLATIVE HISTORY AND
WITH THE PROVISIONS OF OTHER SECTIONS. 

THE LEGISLATIVE HISTORY SUPPORTS THE GOVERNMENT'S ARGUMENT THAT FROM
THE BEGINNING THE AIM OF THE LEGISLATION LATER EMBODIED IN SEC. 305 WAS
TO PERMIT THE VETERAN TO REVIVE HIS POLICY WHEN HE HAD ALLOWED IT TO
LAPSE, FOR WANT OF FUNDS, AT A TIME WHEN THERE WAS MONEY DUE HIM FROM
THE GOVERNMENT FOR A COMPENSABLE DISABILITY.  THE SUPPOSITION WAS THAT
HE WOULD HAVE PAID THE PREMIUMS ON THE LAPSED POLICY IF HE HAD THEN
RECEIVED THE SUM DUE FROM THE GOVERNMENT - A SUPPOSITION WHICH IS
INADMISSIBLE IF, AT THAT TIME, HE HAD CONVERTED LOW PREMIUM TERM
INSURANCE INTO ANY OF THE OTHER FORMS OF INSURANCE COMMANDING A HIGHER
PREMIUM, AS PERMITTED BY SEC. 404. 

IN ITS ORIGINAL FORM, SEC. 305 APPEARED AS A PART OF SEC. 408 OF THE
WAR RISK INSURANCE ACT, ADDED BY THE ACT OF AUGUST 9, 1921, SEC. 27, C.
57, 42 STAT. 147, 156-157.  THE BILL WHICH BECAME SEC. 408, AS
ORIGINALLY REPORTED BY THE HOUSE COMMITTEE, PROVIDED FOR THE
REINSTATEMENT BY DISABLED VETERANS OF THEIR LAPSED AND CANCELLED
POLICIES.  IN RECOMMENDING THIS LEGISLATION THE COMMITTEE OF THE HOUSE
HAVING IT IN CHARGE POINTED OUT THAT MOST SUCH LAPSES AND CANCELLATIONS
OCCURRED AT A TIME WHEN DISABILITY COMPENSATION WAS DUE TO THE VETERAN,
AND WERE PROBABLY OCCASIONED BY LACK OF FUNDS.  FN2  THE BILL WAS
AMENDED ON THE FLOOR OF THE HOUSE  FN3  SO AS TO INCLUDE THE PROVISIONS
LATER ELABORATED INTO SEC. 305.  THEY PERMITTED THE REVIVAL OF A LAPSED
POLICY IN FAVOR OF THE BENEFICIARIES OF A DECEASED VETERAN, IF, AT THE
TIME OF THE LAPSE, HE HAD BEEN ENTITLED TO MONEY FROM THE GOVERNMENT
FOR A COMPENSABLE DISABILITY.  FN4  THE PROVISO, UPON WHICH REVIVAL WAS
CONDITIONED, THAT AT THE TIME OF THE LAPSE COMPENSATION BE DUE FROM THE
GOVERNMENT TO THE VETERAN, MADE MORE EXPLICIT THE PURPOSE INDICATED IN
THE COMMITTEE REPORT.  FN5 

AS THEN ADOPTED, THE REVIVAL PROVISION APPLIED ONLY TO LAPSED
POLICIES, BUT AS AMENDED BY THE ACT OF JULY 2, 1926, IT WAS EXTENDED TO
INCLUDE "CANCELLED OR REDUCED" INSURANCE.  THIS AMENDMENT WAS ADOPTED
FOR THE PURPOSE OF AVOIDING A RULING OF THE COMPTROLLER GENERAL THAT
THE PHRASE "LAPSED INSURANCE" DID NOT EMBRACE CANCELLED OR REDUCED
INSURANCE, EVEN THOUGH THE CANCELLATION OR REDUCTION OCCURRED AT A TIME
WHEN COMPENSATION WAS OWING TO THE VETERAN.  SEE REPORT OF HOUSE
COMMITTEE, NO. 1217, 69TH CONG., 1ST SESS., PP. 7-8; HEARINGS BEFORE
SENATE FINANCE COMMITTEE, 69TH CONG., 1ST SESS., ON H.R. 12175, PP. 50
51.  NEITHER THE WORDS NOR THE LEGISLATIVE HISTORY OF SEC. 305 SUGGEST
THAT THE PHRASE "CANCELED OR REDUCED INSURANCE" WAS INTENDED TO INCLUDE
INSURANCE ELSEWHERE DESCRIBED IN THE ACT AS "CONVERTED," AT LEAST
UNLESS THE CONVERSION WAS ACCOMPANIED BY A REDUCTION OF THE POLICY. 
THE LIKE ADMINISTRATIVE CONSTRUCTION WHICH HAS CONSISTENTLY BEEN GIVEN
TO THE SECTION BY THE VETERANS' BUREAU  FN6  IS OF PERSUASIVE FORCE. 
NORWEGIAN PRODUCTS CO. V. UNITED STATES, 288 U.S. 294, 315; BROWN V.
UNITED STATES, 113 U.S. 568, 571. 

THE OTHER SECTIONS OF THE ACT ARE CONSISTENT WITH THIS CONSTRUCTION
OF SEC. 305.  SECTION 307 PERMITS THE INSURED, IF TOTALLY DISABLED, TO
MAKE CLAIM UNDER HIS CONVERTED POLICY AND ENTITLES HIM TO THE BENEFITS
OF THAT POLICY "IF FOUND ENTITLED THERETO."  SEE UNITED STATES V.
ARZNER, 287 U.S. 470, 473.  BUT IT IS PLAIN THAT RESPONDENT IS NOT
"ENTITLED" TO TOTAL DISABILITY BENEFITS UNDER THE ORIGINAL POLICY,
WITHIN THE MEANING OF SEC. 307, BECAUSE THE TOTAL DISABILITY DID NOT
OCCUR UNTIL AFTER ITS CONVERSION.  SECTION 307 DOES NOT, EITHER BY ITS
TERMS OR BY REASONABLE IMPLICATION, EXTEND THE PRIVILEGES OF SEC. 305
TO CONVERTED INSURANCE.  THE LEGISLATIVE HISTORY OF SEC. 307 DOES NOT
DISCLOSE ANY PURPOSE TO AMEND SEC. 305, OR TO DEPART FROM ITS POLICY,
AND IN ANY CASE THE MODIFICATION BY IMPLICATION OF THE SETTLED
CONSTRUCTION OF AN EARLIER AND DIFFERENT SECTION IS NOT FAVORED. 
UNITED STATES V. MUNDAY, 222 U.S. 175, 182; IBANEZ V. HONGKONG BANKING
CORP., 246 U.S. 621, 626.  THE RIGHT OF RESPONDENT TO REVIVE HIS
INSURANCE IS LIMITED TO THE LAPSED TWENTY-PAYMENT LIFE POLICY. 
REVERSED. 

FN1  SEE WORLD WAR VETERANS' ACT, 1924, SEC. 307, AS AMENDED JULY 3,
1930, 46 STAT. 991, 1001, 38 U.S.C. SEC. 518.  COMPARE WORLD WAR
VETERANS' ACT, 1924, SEC. 310, 45 STAT. 970, 38 U.S.C. SEC. 512 A; SEC.
311, 45 STAT. 970, 38 U.S.C. SEC. 512 B; SEC. 302, 43 STAT. 625, 38
U.S.C. SEC. 513; SEC. 308, 44 STAT. 790, 800, 38 U.S.C. SEC. 516 A, FOR
LEGISLATION APPLYING THE TERM "CONVERTED" TO THE SUBSEQUENT, UNITED
STATES GOVERNMENT LIFE INSURANCE. 

FN2  REPORT OF HOUSE COMMITTEE, NO. 104, 67TH CONG., 1ST SESS., P.
10, STATES:  "IT WOULD APPEAR TO BE EQUITABLE AND FAIR WHEN IT IS
REMEMBERED THAT AS A MATTER OF FACT, IN MOST OF THE INSTANCES, THE
REASON THE DISABLED SOLDIER FAILED TO KEEP UP HIS INSURANCE WAS THAT HE
WAS SHORT OF FUNDS AND IT TOOK THE GOVERNMENT SOME TIME TO INVESTIGATE
AND GRANT HIS COMPENSATION, AND THAT BECAUSE OF THIS FINANCIAL
STRINGENCY HE ALLOWED HIS INSURANCE TO LAPSE." 

FN3  61 CONG. REC. 2422. 

FN4  SECTION 408 WAS AMENDED BY THE ACT OF MARCH 4, 1923, C. 291, 42
STAT. 1521, 1525-1526, TO PROVIDE THAT A LAPSED POLICY COULD BE REVIVED
BY ONE WHO BECAME PERMANENTLY AND TOTALLY DISABLED. 

FN5  SEE 34 OPINIONS, U.S. ATTORNEYS GENERAL, 369, 371. 

FN6  SEE COMMUNICATION OF ADMINISTRATOR OF VETERANS' AFFAIRS TO THE
SOLICITOR GENERAL, DECEMBER 5, 1936:  "...  IT HAS BEEN THE CONSISTENT
PRACTICE OF THE VETERANS' ADMINISTRATION AND ITS PREDECESSORS TO
ADMINISTER SECTION 305, WORLD WAR VETERANS' ACT, 1924, AND THE
PRECEDING PROVISIONS OF SECTION 408, WAR RISK INSURANCE ACT, ON THE
THEORY THAT THEY CONTAINED NO PROVISIONS, EXPRESS OR IMPLIED, FOR
REVIVAL OF INSURANCE UNDER A YEARLY RENEWABLE TERM CONTRACT AFTER IT
HAD BEEN CONVERTED TO A POLICY OF UNITED STATES GOVERNMENT LIFE
INSURANCE...." 
..END :


















SONZINSKY V. UNITED STATES, 300 U.S. 506 


NO. 614.  ARGUED MARCH 12, 1937.  - DECIDED MARCH 29, 1937.  - 86 F.(2D)
486, AFFIRMED. 


1.  THAT PART OF THE NATIONAL FIREARMS ACT WHICH PROVIDES THAT EVERY
DEALER IN FIREARMS SHALL REGISTER AND SHALL PAY AN ANNUAL TAX OF $200
OR BE SUBJECT TO FINE AND IMPRISONMENT, IS A VALID EXERCISE OF THE
TAXING POWER OF CONGRESS.  PP. 511 ET SEQ. 

THE TERM "FIREARM" IS DEFINED BY SEC. 1 OF THE ACT AS MEANING A
SHOTGUN OR RIFLE HAVING A BARREL LESS THAN EIGHTEEN INCHES IN LENGTH,
OR ANY OTHER WEAPON, EXCEPT A PISTOL OR REVOLVER, FROM WHICH A SHOT IS
DISCHARGED BY AN EXPLOSIVE, IF CAPABLE OF BEING CONCEALED ON THE
PERSON, OR A MACHINE GUN, AND INCLUDES A MUFFLER OR SILENCER FOR ANY
FIREARM. 

2.  CONGRESS MAY SELECT THE SUBJECTS OF TAXATION, CHOOSING SOME AND
OMITTING OTHERS.  IT MAY IMPOSE EXCISE TAXES ON THE DOING OF BUSINESS. 
P. 512. 

3.  THE TAX UPON DEALERS, SUPRA, IS NOT IN THE CATEGORY OF PENALTIES
IMPOSED FOR THE ENFORCEMENT OF REGULATIONS BEYOND THE SCOPE OF
CONGRESSIONAL POWER.  P. 513. 

4.  A TAX MAY HAVE REGULATORY EFFECTS AND MAY BURDEN, RESTRICT OR
SUPPRESS THE THING TAXED, AND STILL BE WITHIN THE TAXING POWER.  P.
513. 

5.  COURTS MAY NOT INQUIRE INTO THE MOTIVES OF CONGRESS IN EXERCISING
ITS POWERS; THEY WILL NOT UNDERTAKE, BY COLLATERAL INQUIRY AS TO THE
MEASURE OF THE REGULATORY EFFECT OF A TAX, TO ASCRIBE TO CONGRESS AN
ATTEMPT, UNDER THE GUISE OF TAXATION, TO EXERCISE ANOTHER POWER DENIED
BY THE FEDERAL CONSTITUTION.  P. 513. 

6.  THE COURT DECLINES TO CONSIDER PETITIONER'S CONTENTIONS NOT
SUPPORTED BY ASSIGNMENT OF ERROR.  P. 514. 

SONZINSKY V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, POST, P. 648, TO REVIEW A JUDGMENT AFFIRMING A CONVICTION
UNDER THE NATIONAL FIREARMS ACT. 

CONGRESS IS NOT EMPOWERED TO TAX FOR THOSE PURPOSES WHICH ARE WITHIN
THE EXCLUSIVE PROVINCE OF THE STATES.  UNITED STATES V. BUTLER, 297
U.S. 1, 64; GIBBONS V. OGDEN, 9 WHEAT.  1, 199. 

BENEFICENT AIMS CAN NEVER SERVE IN LIEU OF CONSTITUTIONAL POWER. 
CARTER V. CARTER COAL CO., 298 U.S. 38. 

AN EXACTION, CALLED A TAX, WHICH IS IN FACT AND EFFECT A PENALTY, IS
NOT A TAX.  WHILE THE LAWMAKER IS ENTIRELY FREE TO IGNORE THE ORDINARY
MEANING OF WORDS AND MAKE DEFINITIONS OF HIS OWN, THAT DEVICE MAY NOT
BE EMPLOYED SO AS TO CHANGE THE NATURE OF ACTS OR THINGS TO WHICH THE
WORDS ARE APPLIED.  CARTER V. CARTER COAL CO., SUPRA; BAILEY V. DREXEL
FURNITURE CO., 259 U.S. 20; UNITED STATES V. LAFRANCA, 282 U.S. 568,
572; UNITED STATES V. CONSTANTINE, 296 U.S. 287, 293; UNITED STATES V.
BUTLER, SUPRA. 

THE CONSTITUTION MADE NO GRANT OF AUTHORITY TO CONGRESS TO LEGISLATE
SUBSTANTIVELY FOR THE GENERAL WELFARE, AND NO SUCH AUTHORITY EXISTS,
SAVE AS THE GENERAL WELFARE MAY BE PROMOTED BY THE EXERCISE OF THE
POWERS WHICH ARE GRANTED.  CASES SUPRA. 

THE POWER OF TAXATION WHICH IS EXPRESSLY GRANTED MAY BE ADOPTED AS A
MEANS TO CARRY INTO OPERATION ANOTHER POWER ALSO EXPRESSLY GRANTED, BUT
RESORT TO THE TAXING POWER TO EFFECTUATE AN END WHICH IS NOT
LEGITIMATE, NOT WITHIN THE SCOPE OF THE CONSTITUTION, IS OBVIOUSLY
INADMISSIBLE.  CASES SUPRA. 

IF THE CONSTITUTION, IN ITS GRANT OF POWERS, IS TO BE SO CONSTRUED AS
TO CARRY INTO FULL EFFECT THE POWER GRANTED, IT IS EQUALLY IMPERATIVE
THAT, WHERE A PROHIBITION OR LIMITATION IS PLACED UPON THE POWER OF
CONGRESS, THAT PROHIBITION OR LIMITATION SHOULD BE ENFORCED IN ITS
SPIRIT AND TO ITS ENTIRETY.  FAIRBANKS V. UNITED STATES, 181 U.S. 312. 

A MERE READING OF THE NATIONAL FIREARMS ACT DISCLOSES THAT IT WAS
ENACTED FOR THE PURPOSE OF REGULATING OR SUPPRESSING TRAFFIC IN THE
FIREARMS DESCRIBED IN THE ACT; THAT IT WAS NOT ENACTED FOR THE PURPOSE
OF COLLECTING ANY TAXES; THAT IT WAS PASSED AS A POLICE MEASURE, AS AN
AID TO LOCAL LAW ENFORCEMENT, AND NOT AS A REVENUE LAW.  WHILE IT IS
TRUE THAT, WHERE THE LAW MERELY IMPOSES THE TAX WITHOUT DISCLOSING THE
INDIRECT PURPOSE OF ITS IMPOSITION, THE COURTS MIGHT HESITATE TO
DECLARE THE LAW UNCONSTITUTIONAL, ON THE OTHER HAND, IF THE REAL
PURPOSE OF THE LAW IS DISCLOSED ON ITS FACE TO BE A PURPOSE THAT
INVADES THE POLICE POWERS RESERVED TO THE INDIVIDUAL STATES, THE COURTS
SHOULD NOT HESITATE TO DECLARE THE ACT AN UNCONSTITUTIONAL USURPATION
BY THE FEDERAL GOVERNMENT OF POWERS RESERVED TO THE STATES BY THE TENTH
AMENDMENT.  COOLEY, CONST. L., PP. 56-60; CITIZENS SAVINGS & LOAN ASSN.
V. TOPEKA, 20 WALL.  655; POWELL V. PENNSYLVANIA, 127 U.S. 678. 

UNDER THE AMERICAN CONSTITUTIONAL SYSTEM, THE POLICE POWER, BEING AN
ATTRIBUTE OF SOVEREIGNTY INHERENT IN THE ORIGINAL STATES, AND NOT
DELEGATED BY THE FEDERAL CONSTITUTION TO THE UNITED STATES, REMAINS
WITH THE INDIVIDUAL STATES.  NEW ORLEANS GAS LIGHT CO. V. LOUISIANA
LIGHT CO., 115 U.S. 650; PLUMLEY V. MASSACHUSETTS, 155 U.S. 461; UNITED
STATES V. L.C. KNIGHT CO., 156 U.S. 1; CONNOLLY V. UNION SEWER PIPE
CO., 184 U.S. 540. 

WHATEVER MAY BE THE MOTIVE OR PRETEXT OF A STATUTE, OR IN WHATEVER
LANGUAGE IT MAY BE FRAMED, ITS REAL PURPOSE AND THE QUESTION OF ITS
VALIDITY MUST BE DETERMINED BY ITS NATURAL AND REASONABLE EFFECT TO BE
ASCERTAINED FROM ITS PRACTICAL OPERATION.  HENDERSON V. NEW YORK, 92
U.S. 259; MORGAN'S CO. V. BOARD OF HEALTH, 118 U.S. 455; COLLINS V. NEW
HAMPSHIRE, 171 U.S. 30; MUGLER V. KANSAS, 123 U.S. 623; FAIRBANKS V.
UNITED STATES, 181 U.S. 283; POSTAL TELEGRAPH CO. V. ADAMS, 155 U.S.
688. 

IT IS APPARENT FROM READING THE NATIONAL FIREARMS ACT THAT CONGRESS
HAD NO INTENTION OF FRAMING A LAW THAT WOULD PROCURE ANY REVENUE FOR
THE GOVERNMENT.  IN THE INSTANT CASE, THE EFFECT OF THE APPLICATION OF
THE LAW TO PETITIONER IS TO REQUIRE HIM TO PAY A DEALER'S ANNUAL TAX OF
$200.00 AND TO PAY A TRANSFER TAX OF AN ADDITIONAL $200.00 FOR THE
PRIVILEGE OF HANDLING AND SELLING A COMMODITY OF THE VALUE OF ONLY
$10.00.  THE ACT FURTHER SUBJECTS PETITIONER TO THE PAYMENT OF A FINE
AND TO IMPRISONMENT OF NOT TO EXCEED FIVE YEARS IF HE SHOULD FAIL TO
PAY THE PENALTIES REQUIRED OF HIM.  THESE FACTS DEMONSTRATE, WITHOUT
THE POSSIBILITY OF CONTRADICTION, THAT THE PURPOSE WAS NOT NOT TO TAX A
BUSINESS, BUT TO PROHIBIT IT.  IT IS INCONCEIVABLE THAT ANYONE WOULD
ANTICIPATE THAT A DEALER WITHIN THE DEFINITION OF SEC. 2 OF THE ACT
COULD POSSIBLY PAY THE PENALTY REQUIRED BY THE ACT.  THE AMOUNT OF A
LEVY THAT A STATUTE MAKES UPON BUSINESS FREQUENTLY FORMS THE BASIS OF
JURISDICTIONAL ACTION AND DETERMINES THE VALIDITY OF LEGISLATION.  THE
COURTS HAVE FOUND NO INSUPERABLE DIFFICULTY IN DETERMINING THE
DIFFERENCE BETWEEN A TAX AND A PENALTY.  BAILEY V. DREXEL FURNITURE
CO., 259 U.S. 20; ATLANTIC & PACIFIC TELEGRAPH CO. V. PHILADELPHIA, 190
U.S. 160; SMYTH V. AMES, 169 U.S. 466; LINDER V. UNITED STATES, 268
U.S. 5. 

THE CLASSIFICATION MADE BY THE ACT IS ARBITRARY AND UNREASONABLE.  IT
DISCRIMINATES AGAINST ONE DEALER IN FAVOR OF ANOTHER, WITHOUT STATING
ANY JUSTIFICATION FOR SO DOING.  CONNOLLY V. UNION SEWER PIPE CO., 184
U.S. 540; OLIVER V. WASHINGTON MILLS, 11 ALLEN 265. 

IT IS THE DUTY OF A REVIEWING COURT TO REVIEW THE TESTIMONY AND
REVERSE THE CONVICTION IF THERE IS NO EVIDENCE WHATEVER TO SUPPORT IT.
MILES V. UNITED STATES, 103 U.S. 304; DEGNAN V. UNITED STATES, 271 FED.
291; APPLEBAUM V. UNITED STATES, 274 FED. 43. 

THE AUTHORITY OF CONGRESS TO ENACT THIS STATUTE IS FOUND IN ART. I,
SEC. 8, CL. 1 OF THE CONSTITUTION. 

IT IS NO OBJECTION THAT THE SIZE OF THE TAX TENDS TO BURDEN AND
DISCOURAGE THE CONDUCT OF THE OCCUPATION OF PETITIONER.  CF. MAGNANO
CO. V. HAMILTON, 292 U.S. 40.  NOR IS IT MATERIAL THAT CONGRESS MAY
HAVE ANTICIPATED AND EVEN INTENDED SUCH AN EFFECT.  WHERE A TAX IS LAID
ON A PROPER SUBJECT AND DISCLOSES A REVENUE PURPOSE, IT IS OF NO
CONSEQUENCE THAT SOCIAL, OR MORAL, OR ECONOMIC FACTORS MAY HAVE BEEN
CONSIDERED BY CONGRESS IN ENACTING THE MEASURE.  MCCRAY V. UNITED
STATES, 195 U.S. 27; UNITED STATES V. DOREMUS, 249 U.S. 86; NIGRO V.
UNITED STATES, 276 U.S. 332; HAMPTON & CO. V. UNITED STATES, 276 U.S.
394.  THE CASES RELIED UPON BY PETITIONER ARE DISTINGUISHABLE.  THEY
INVOLVE PENALTIES FOR FAILURE TO COMPLY WITH FEDERAL REGULATIONS DEEMED
TO BE BEYOND THE POWER OF CONGRESS. 

PETITIONER'S CONTENTION THAT THE STATUTE INVOLVES AN UNREASONABLE
CLASSIFICATION IS MERELY AN ATTACK ON THE SELECTION BY CONGRESS OF THE
OBJECTS OF TAXATION, AND IS UNTENABLE.  HIS FURTHER INSISTENCE THAT THE
EVIDENCE DOES NOT SUPPORT THE JUDGMENT OF CONVICTION PRESSES A
CONTENTION NOT WITHIN THE LIMITS OF THE ORDER GRANTING THE WRIT OF
CERTIORARI. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER SEC. 2 OF THE NATIONAL FIREARMS
ACT OF JUNE 26, 1934, C. 757, 48 STAT. 1236, 26 U.S.C., SECS. 1132-1132
Q, WHICH IMPOSES A $200 ANNUAL LICENSE TAX ON DEALERS IN FIREARMS, IS A
CONSTITUTIONAL EXERCISE OF THE LEGISLATIVE POWER OF CONGRESS. 

PETITIONER WAS CONVICTED BY THE DISTRICT COURT FOR EASTERN ILLINOIS
ON TWO COUNTS OF AN INDICTMENT, THE FIRST CHARGING HIM WITH VIOLATION
OF SEC. 2, BY DEALING IN FIREARMS WITHOUT PAYMENT OF THE TAX.  ON
APPEAL THE COURT OF APPEALS SET ASIDE THE CONVICTION ON THE SECOND
COUNT AND AFFIRMED ON THE FIRST.  86 F.(2D) 486.  ON PETITION OF THE
ACCUSED WE GRANTED CERTIORARI, LIMITED TO THE QUESTION OF THE
CONSTITUTIONAL VALIDITY OF THE STATUTE IN ITS APPLICATION UNDER THE
FIRST COUNT IN THE INDICTMENT. 

FIREARMS TO REGISTER WITH THE COLLECTOR OF INTERNAL REVENUE IN THE
DISTRICT WHERE HE CARRIES ON BUSINESS, AND TO PAY A SPECIAL EXCISE TAX
OF $200 A YEAR.  IMPORTERS OR MANUFACTURERS ARE TAXED $500 A YEAR. 
BY THE TRANSFEROR, AND SEC. 4 PRESCRIBES REGULATIONS FOR THE
IDENTIFICATION OF PURCHASERS.  THE TERM "FIREARM" IS DEFINED BY SEC. 1
AS MEANING A SHOTGUN OR A RIFLE HAVING A BARREL LESS THAN EIGHTEEN
INCHES IN LENGTH, OR ANY OTHER WEAPON, EXCEPT A PISTOL OR REVOLVER,
FROM WHICH A SHOT IS DISCHARGED BY AN EXPLOSIVE, IF CAPABLE OF BEING
CONCEALED ON THE PERSON, OR A MACHINE GUN, AND INCLUDES A MUFFLER OR
SILENCER FOR ANY FIREARM.  AS THE CONVICTION FOR NONPAYMENT OF THE TAX
EXACTED BY SEC. 2 HAS ALONE BEEN SUSTAINED, IT IS UNNECESSARY TO
INQUIRE WHETHER THE DIFFERENT TAX LEVIED BY SEC. 3 AND THE REGULATIONS
PERTAINING TO IT ARE VALID.  SECTION 16 DECLARES THAT THE PROVISIONS OF
THE ACT ARE SEPARABLE.  EACH TAX IS ON A DIFFERENT ACTIVITY AND IS
COLLECTIBLE INDEPENDENTLY OF THE OTHER.  FULL EFFECT MAY BE GIVEN TO
THE LICENSE TAX STANDING ALONE, EVEN THOUGH ALL OTHER PROVISIONS ARE
INVALID.  WELLER V. NEW YORK, 268 U.S. 319; FIELD V. CLARK, 143 U.S.
649, 697; CF. CHAMPLIN REFINING CO. V. COMMISSION, 286 U.S. 210, 234. 

IN THE EXERCISE OF ITS CONSTITUTIONAL POWER TO LAY TAXES, CONGRESS
MAY SELECT THE SUBJECTS OF TAXATION, CHOOSING SOME AND OMITTING
OTHERS.  SEE FLINT V. STONE TRACY CO., 220 U.S. 107, 158; NICOL V.
AMES, 173 U.S. 509, 516; BROMLEY V. MCCAUGHN, 280 U.S. 124.  ITS POWER
EXTENDS TO THE IMPOSITION OF EXCISE TAXES UPON THE DOING OF BUSINESS. 
SEE LICENSE TAX CASES, 5 WALL.  462; SPRECKLES SUGAR REFINING CO. V.
MCCLAIN, 192 U.S. 397, 412; UNITED STATES V. DOREMUS, 249 U.S. 86, 94. 
PETITIONER DOES NOT DENY THAT CONGRESS MAY TAX HIS BUSINESS AS A DEALER
IN FIREARMS.  HE INSISTS THAT THE PRESENT LEVY IS NOT A TRUE TAX, BUT A
PENALTY IMPOSED FOR THE PURPOSE OF SUPPRESSING TRAFFIC IN A CERTAIN
NOXIOUS TYPE OF FIREARMS, THE LOCAL REGULATION OF WHICH IS RESERVED TO
THE STATES BECAUSE NOT GRANTED TO THE NATIONAL GOVERNMENT.  TO
ESTABLISH ITS PENAL AND PROHIBITIVE CHARACTER, HE RELIES ON THE AMOUNTS
OF THE TAX IMPOSED BY SEC. 2 ON DEALERS, MANUFACTURERS AND IMPORTERS,
AND OF THE TAX IMPOSED BY SEC. 3 ON EACH TRANSFER OF A "FIREARM,"
PAYABLE BY THE TRANSFEROR.  THE CUMULATIVE EFFECT ON THE DISTRIBUTION
OF A LIMITED CLASS OF FIREARMS, OF RELATIVELY SMALL VALUE, BY THE
SUCCESSIVE IMPOSITION OF DIFFERENT TAXES, ONE ON THE BUSINESS OF THE
IMPORTER OR MANUFACTURER, ANOTHER ON THAT OF THE DEALER, AND A THIRD ON
THE TRANSFER TO A BUYER, IS SAID TO BE PROHIBITIVE IN EFFECT AND TO
DISCLOSE UNMISTAKABLY THE LEGISLATIVE PURPOSE TO REGULATE RATHER THAN
TO TAX. 

THE CASE IS NOT ONE WHERE THE STATUTE CONTAINS REGULATORY PROVISIONS
RELATED TO A PURPORTED TAX IN SUCH A WAY AS HAS ENABLED THIS COURT TO
SAY IN OTHER CASES THAT THE LATTER IS A PENALTY RESORTED TO AS A MEANS
OF ENFORCING THE REGULATIONS.  SEE CHILD LABOR TAX CASE, 259 U.S. 20,
35; HILL V. WALLACE, 259 U.S. 44; CARTER V. CARTER COAL CO., 298 U.S.
238.  NOR IS THE SUBJECT OF THE TAX DESCRIBED OR TREATED AS CRIMINAL BY
THE TAXING STATUTE.  COMPARE UNITED STATES V. CONSTANTINE, 296 U.S.
287.  HERE SEC. 2 CONTAINS NO REGULATION OTHER THAN THE MERE
REGISTRATION PROVISIONS, WHICH ARE OBVIOUSLY SUPPORTABLE AS IN AID OF A
REVENUE PURPOSE.  ON ITS FACE IT IS ONLY A TAXING MEASURE, AND WE ARE
ASKED TO SAY THAT THE TAX, BY VIRTUE OF ITS DETERRENT EFFECT ON THE
ACTIVITIES TAXED, OPERATES AS A REGULATION WHICH IS BEYOND THE
CONGRESSIONAL POWER. 

EVERY TAX IS IN SOME MEASURE REGULATORY.  TO SOME EXTENT IT
INTERPOSES AN ECONOMIC IMPEDIMENT TO THE ACTIVITY TAXED AS COMPARED
WITH OTHERS NOT TAXED.  BUT A TAX IS NOT ANY THE LESS A TAX BECAUSE IT
HAS A REGULATORY EFFECT, UNITED STATES V. DOREMUS, SUPRA, 93, 94; NIGRO
V. UNITED STATES, 276 U.S. 332, 353, 354; LICENSE TAX CASES, SUPRA; SEE
CHILD LABOR TAX CASE, SUPRA, 38; AND IT HAS LONG BEEN ESTABLISHED THAT
AN ACT OF CONGRESS WHICH ON ITS FACE PURPORTS TO BE AN EXERCISE OF THE
TAXING POWER IS NOT ANY THE LESS SO BECAUSE THE TAX IS BURDENSOME OR
TENDS TO RESTRICT OR SUPPRESS THE THING TAXED.  VEAZIE BANK V. FENNO, 8
WALL.  533, 548; MCCRAY V. UNITED STATES, 195 U.S. 27, 60-61; CF.
ALASKA FISH CO. V. SMITH, 255 U.S. 44, 48. 

INQUIRY INTO THE HIDDEN MOTIVES WHICH MAY MOVE CONGRESS TO EXERCISE A
POWER CONSTITUTIONALLY CONFERRED UPON IT IS BEYOND THE COMPETENCY OF
COURTS.  VEAZIE BANK V. FENNO, SUPRA; MCCRAY V. UNITED STATES, SUPRA,
56-59; UNITED STATES V. DOREMUS, SUPRA, 93-94; SEE MAGNANO CO. V.
HAMILTON, 292 U.S. 40, 44, 45; CF. ARIZONA V. CALIFORNIA, 283 U.S. 423,
455; SMITH V. KANSAS CITY TITLE CO., 255 U.S. 180, 210; WEBER V. FREED,
239 U.S. 325, 329-330; FLETCHER V. PECK, 6 CRANCH 87, 130.  THEY WILL
NOT UNDERTAKE, BY COLLATERAL INQUIRY AS TO THE MEASURE OF THE
REGULATORY EFFECT OF A TAX, TO ASCRIBE TO CONGRESS AN ATTEMPT, UNDER
THE GUISE OF TAXATION, TO EXERCISE ANOTHER POWER DENIED BY THE FEDERAL
CONSTITUTION.  MCCRAY V. UNITED STATES, SUPRA; CF. MAGNANO CO. V.
HAMILTON, SUPRA, 45. 

HERE THE ANNUAL TAX OF $200 IS PRODUCTIVE OF SOME REVENUE.  FN1  WE
ARE NOT FREE TO SPECULATE AS TO THE MOTIVES WHICH MOVED CONGRESS TO
IMPOSE IT, OR AS TO THE EXTENT TO WHICH IT MAY OPERATE TO RESTRICT THE
ACTIVITIES TAXED.  AS IT IS NOT ATTENDED BY AN OFFENSIVE REGULATION,
AND SINCE IT OPERATES AS A TAX, IT IS WITHIN THE NATIONAL TAXING
POWER.  ALSTON V. UNITED STATES, 274 U.S. 289, 294; NIGRO V. UNITED
STATES, SUPRA, 352, 353; HAMPTON & CO. V. UNITED STATES, 276 U.S. 394,
411, 413.    WE DO NOT DISCUSS PETITIONER'S CONTENTIONS WHICH HE FAILED
TO ASSIGN AS ERROR BELOW.  AFFIRMED. 

FN1  THE $200 TAX WAS PAID BY 27 DEALERS IN 1934, AND BY 22 DEALERS
IN 1935.  ANNUAL REPORT OF THE COMMISSIONER OF INTERNAL REVENUE, FISCAL
YEAR ENDED JUNE 30, 1935, PP. 129-131; ID., FISCAL YEAR ENDED JUNE 30,
1936, PP. 139-141. 
..END :
















VIRGINIAN RY. V. FEDERATION, 300 U.S. 515 


NO. 324.  ARGUED FEBRUARY 8, 9, 1937.  - DECIDED MARCH 29, 1937.  - 84
F.(2D) 641, AFFIRMED.  D.C., 11 F.SUPP.  621. 


1.  CONCURRENT FINDINGS OF FACT, BY DISTRICT COURT AND CIRCUIT COURT
OF APPEALS, ARE CONCLUSIVE WHEN NOT PLAINLY ERRONEOUS.  PP. 542-545. 

2.  THE AMENDED RAILWAY LABOR ACT SEEKS TO AVOID INTERRUPTIONS OF
INTERSTATE COMMERCE RESULTING FROM DISPUTES CONCERNING PAY, RULES, OR
WORKING CONDITIONS ON THE RAILROADS, BY THE PROMOTION OF COLLECTIVE
BARGAINING BETWEEN THE CARRIER AND THE AUTHORIZED REPRESENTATIVE OF ITS
EMPLOYEES, AND BY MEDIATION AND ARBITRATION WHEN SUCH BARGAINING DOES
NOT RESULT IN AGREEMENT.  TO FACILITATE AGREEMENT, IT GIVES TO
EMPLOYEES THE RIGHT TO ORGANIZE AND BARGAIN COLLECTIVELY THROUGH A
REPRESENTATIVE OF THEIR OWN SELECTION, DOING AWAY WITH COMPANY
INTERFERENCE AND "COMPANY UNIONS."  SECTION 2, NINTH, MAKES IT THE DUTY
OF THE NATIONAL MEDIATION BOARD, WHEN ANY DISPUTE ARISES AMONG A
CARRIER'S EMPLOYEES "AS TO WHO ARE THE REPRESENTATIVES OF SUCH
EMPLOYEES," TO INVESTIGATE THE DISPUTE AND TO CERTIFY THE NAME OF THE
ORGANIZATION AUTHORIZED TO REPRESENT THE EMPLOYEES; AND IT COMMANDS
THAT "UPON RECEIPT OF SUCH CERTIFICATION THE CARRIER SHALL TREAT WITH
THE REPRESENTATIVE SO CERTIFIED AS THE REPRESENTATIVE OF THE CRAFT OR
CLASS FOR THE PURPOSES OF THIS ACT."  HELD: 

(1)  THAT THE DUTY TO "TREAT" WITH THE REPRESENTATIVE SO CERTIFIED IS
MANDATORY.  P. 547. 

(2)  THE STATUTE DOES NOT UNDERTAKE TO COMPEL AGREEMENT AND DOES NOT
PRECLUDE THE EMPLOYER FROM ENTERING INTO INDIVIDUAL CONTRACTS DIRECTLY
WITH INDIVIDUAL EMPLOYEES, BUT IT REQUIRES THE EMPLOYER TO "TREAT WITH"
THE AUTHORIZED REPRESENTATIVE OF THE EMPLOYEES, THAT IS, TO MEET AND
CONFER WITH THEIR REPRESENTATIVE, TO LISTEN TO THEIR COMPLAINTS, AND TO
MAKE REASONABLE EFFORT TO COMPOSE DIFFERENCES.  P. 548. 

(3)  THE DUTY IS TO TREAT WITH THE AUTHORIZED REPRESENTATIVE
EXCLUSIVELY.  P. 548. 

(4)  THIS DUTY IS ENFORCEABLE BY INJUNCTION.  P. 549. 

3.  A COURT OF EQUITY MAY REFUSE TO ACT WHEN IT CANNOT GIVE EFFECTIVE
RELIEF; BUT WHETHER A DECREE SHOULD BE REFUSED AS USELESS IS A MATTER
OF JUDGMENT ADDRESSED TO THE SPECIAL CIRCUMSTANCES OF EACH CASE.  P.
550. 

4.  IN DETERMINING WHETHER THE DUTY OF A CARRIER TO TREAT WITH THE
AUTHORIZED REPRESENTATIVE OF ITS EMPLOYEES IS ENFORCEABLE BY MANDATORY
INJUNCTION, WEIGHT IS ATTACHED TO THE JUDGMENT OF CONGRESS THAT
CONFERENCE BETWEEN CARRIERS AND EMPLOYEES IS A POWERFUL AID TO
INDUSTRIAL PEACE; AND IT WILL NOT BE ASSUMED THAT SUCH NEGOTIATION WILL
NOT RESULT IN AGREEMENT OR LEAD TO SUCCESSFUL MEDIATION OR
ARBITRATION.  P. 551. 

5.  THE PEACEABLE SETTLEMENT OF LABOR CONTROVERSIES THAT MAY
SERIOUSLY IMPAIR THE ABILITY OF AN INTERSTATE CARRIER TO PERFORM ITS
SERVICE TO THE PUBLIC, IS A MATTER OF PUBLIC CONCERN.  P. 552. 

6.  COURTS OF EQUITY GO MUCH FARTHER IN FURTHERANCE OF THE PUBLIC
INTEREST THAN WHEN ONLY PRIVATE INTERESTS ARE INVOLVED.  P. 552. 

7.  THE FACT THAT, BY THE RAILWAY LABOR ACT, CONGRESS HAS INDICATED
ITS PURPOSE TO MAKE NEGOTIATION BETWEEN CARRIER AND EMPLOYEES
OBLIGATORY IN CASE OF INDUSTRIAL CONTROVERSY, IS IN ITSELF A
DECLARATION OF PUBLIC INTEREST AND POLICY.  P. 552. 

8.  THE POWER OF CONGRESS OVER INTERSTATE COMMERCE EXTENDS TO SUCH
REGULATIONS OF THE RELATIONS OF RAIL CARRIERS TO THEIR EMPLOYEES AS ARE
REASONABLY CALCULATED TO PREVENT THE INTERRUPTION OF INTERSTATE
COMMERCE BY STRIKES AND THEIR ATTENDANT DISORDERS.  P. 553. 

9.  IT WAS FOR CONGRESS TO CHOOSE THE MEANS BY WHICH ITS OBJECTIVE OF
SECURING THE UNINTERRUPTED SERVICE OF INTERSTATE RAILROADS WAS TO BE
SECURED, AND ITS JUDGMENT, EXPRESSED IN THE RAILWAY LABOR ACT AND
CONFIRMED BY THE HISTORY OF INDUSTRIAL DISPUTES AND OF RAILROAD LABOR
RELATIONS, IS NOT OPEN TO REVIEW HERE.  P. 553. 

10.  THE ACTIVITIES OF "BACK SHOP" EMPLOYEES ENGAGED ON HEAVY REPAIRS
ON LOCOMOTIVES AND CARS WITHDRAWN FROM SERVICE FOR LONG PERIODS, ARE
HELD TO BEAR SUCH RELATION TO THE INTERSTATE ACTIVITIES OF THE CARRIER
AS TO BE REGARDED AS PART OF THEM - (EMPLOYERS' LIABILITY CASES, 207
U.S. 463, DISTINGUISHED) - ALL SUBJECT TO THE POWER OF CONGRESS OVER
INTERSTATE COMMERCE.  P. 554. 

11.  ALTHOUGH THE CARRIER IN THIS CASE MIGHT HAVE TURNED OVER ITS
BACK SHOP REPAIR WORK TO INDEPENDENT CONTRACTORS, ITS DETERMINATION TO
MAKE ITS OWN REPAIRS, AND THE NATURE OF THE WORK DONE, BROUGHT ITS
RELATIONS WITH THE BACK SHOP EMPLOYEES WITHIN THE PURVIEW OF THE
RAILWAY LABOR ACT.  P. 557. 

12.  THE PROVISIONS OF THE RAILWAY LABOR ACT PROHIBITING COMPANY
UNIONS AND IMPOSING ON THE RAILWAY THE DUTY OF "TREATING WITH" THE
AUTHORIZED REPRESENTATIVE OF ITS EMPLOYEES FOR THE PURPOSE OF
NEGOTIATING A LABOR DISPUTE, DO NOT INFRINGE THE RIGHTS OF THE CARRIER
UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  P. 557. 

13.  IN THIS REGARD, THE RAILWAY COULD COMPLAIN ONLY OF INFRINGEMENT
OF ITS OWN CONSTITUTIONAL IMMUNITY, NOT THAT OF THE EMPLOYEES.  P.
558. 

14.  UNDER SEC. 2, FOURTH, OF THE RAILWAY LABOR ACT, AT AN ELECTION
PARTICIPATED IN BY A MAJORITY OF THE EMPLOYEES ENTITLED TO VOTE, THE
VOTE OF A MAJORITY OF THE PARTICIPANTS DETERMINES THE CHOICE OF
REPRESENTATIVE.  P. 559. 

15.  A CERTIFICATE OF THE NATIONAL MEDIATION BOARD, CERTIFYING, IN
CONFORMITY WITH THE RAILWAY LABOR ACT, THAT AS THE RESULT OF AN
ELECTION A SPECIFIED UNION HAS BEEN DESIGNATED TO REPRESENT A CRAFT OF
EMPLOYEES, AND SHOWING ON ITS FACE THE TOTAL NUMBER OF VOTES CAST IN
FAVOR OF EACH CANDIDATE, IS NOT VOID BECAUSE IT FAILS TO STATE THE
TOTAL NUMBER OF ELIGIBLE VOTERS IN THE CRAFT, BUT IS PRIMA FACIE
SUFFICIENT, AND THE OMITTED FACT IS OPEN TO INQUIRY BY THE COURT ASKED
TO ENFORCE THE COMMAND OF THE STATUTE, SEC. 2, NINTH.  P. 561. 

16.  SECTION 9 OF THE ACT OF MARCH 23, 1932, C. 90, 47 STAT. 70,
WHICH PROVIDES THAT "EVERY RESTRAINING ORDER OR INJUNCTION GRANTED IN A
CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE SHALL INCLUDE ONLY A
PROHIBITION OF SUCH SPECIFIC ACT OR ACTS AS MAY BE EXPRESSLY COMPLAINED
OF IN THE BILL OF COMPLAINT OR PETITION FILED IN SUCH CASE AND AS SHALL
BE EXPRESSLY INCLUDED IN  ... FINDINGS OF FACT MADE AND FILED BY THE
COURT," IS NOT INCONSISTENT WITH THE MANDATORY INJUNCTION IN THIS
CASE.  P. 562. 

17.  SPECIFIC PROVISIONS OF A LATER ACT CANNOT BE RENDERED NUGATORY
BY MORE GENERAL PROVISIONS OF AN EARLIER ACT.  P. 563. 

VIRGINIAN RAILWAY CO. V. SYSTEM FEDERATION NO. 40, RAILWAY EMPLOYEES
DEPARTMENT OF THE AMERICAN FEDERATION OF LABOR, ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 299 U.S. 529, TO REVIEW THE AFFIRMANCE OF A DECREE
RENDERED BY THE DISTRICT COURT AGAINST THE RAILWAY COMPANY IN A SUIT BY
THE FEDERATION.  THE DECREE COMMANDED THE COMPANY TO TREAT WITH THE
FEDERATION AS THE DULY ACCREDITED REPRESENTATIVE OF THE COMPANY'S SHOP
CRAFT EMPLOYEES, IN RESPECT OF PAY, WORKING CONDITIONS, ETC., AND
RESTRAINED THE COMPANY FROM INTERFERING WITH, INFLUENCING, OR COERCING
SUCH EMPLOYEES IN THEIR FREE CHOICE OF THEIR REPRESENTATIVES, ETC. 

MR. JAMES PIPER OPENED, AND MR. H. T. HALL CONCLUDED, THE ARGUMENT
FOR PETITIONER.  MESSRS.  W.H.T. LOYALL AND JOHN C. DONNALLY WERE ALSO
ON THE PETITIONER'S BRIEF FROM WHICH THE FOLLOWING SUMMARY IS TAKEN. 

ENFORCEABLE OBLIGATION TO NEGOTIATE.  IN REQUIRING THE RAILWAY TO
"EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN AGREEMENTS," ETC.,
THE DECREE USES THE VERY WORDS OF SEC. 2, FIRST, OF THE RAILWAY LABOR
ACT OF 1926, WHICH WAS CONTINUED BY THE 1934 AMENDMENTS WITHOUT
CHANGE.  THE COURT BELOW HELD "TREAT WITH" IN SEC. 2, NINTH, TO MEAN
"NEGOTIATE WITH," AND PRESUMABLY THIS PORTION OF THE DECREE WAS UPHELD
AS A DEFINITION OF THE NEGOTIATIONS THE RAILWAY WAS REQUIRED TO
UNDERTAKE.  BUT IN MALONE V. GARDNER, 62 F.(2D) 15, 18-20, THE SAME
COURT HELD SEC. 2, FIRST, OF THE ACT TO BE A GENERAL ADMONITION OR
DECLARATION OF DUTY IMPOSING NO ENFORCEABLE OBLIGATION, CITING TEXAS &
N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548, AND PENNSYLVANIA RAILROAD
SYSTEM V. PENNSYLVANIA R. CO., 267 U.S. 203.  THE TWO DECISIONS OF THE
COURT BELOW ARE IRRECONCILABLE.  IT RESTS THE AUTHORITY TO AWARD SUCH A
MANDATORY INJUNCTION, NOT UPON ANY CHANGE IN SEC. 2, FIRST, BUT SOLELY
UPON THE ADDITION TO THE ACT OF THE PROVISION IN SEC. 2, NINTH,
REQUIRING CARRIERS TO "TREAT WITH" REPRESENTATIVES CERTIFIED, ETC.  IN
OTHER WORDS, IT HOLDS, IN EFFECT, THAT AN ADMITTEDLY UNENFORCEABLE DUTY
"TO EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN AGREEMENTS" HAS
BEEN TRANSFORMED INTO A LEGALLY ENFORCEABLE ONE BY THE MERE ADDITION TO
THE STATUTE OF THIS REQUIREMENT TO "TREAT WITH" REPRESENTATIVES.  IT
SEEMS TO HAVE FELT THAT A DIRECTION TO NEGOTIATE FOR SPECIFIED PURPOSES
(SEC. 2, FIRST), LEGALLY UNENFORCEABLE, WAS MADE LEGALLY ENFORCEABLE BY
THE ADDITION TO THE STATUTE OF (WHAT IT CONSTRUED TO BE) A DIRECTION TO
"NEGOTIATE" FOR ANY OF THE PURPOSES OF THE ACT (SEC. 2, NINTH). 

CONGRESS DID NOT INTEND TO MAKE ANY SUCH CHANGE IN THE LAW, AND DID
NOT USE "TREAT WITH" IN THE SENSE OF "NEGOTIATE WITH," BUT IN ITS VERY
USUAL SENSE OF "ACT TOWARDS" OR "REGARD."  THE DUTY IS TO TREAT WITH
THE CERTIFIED REPRESENTATIVE "AS THE REPRESENTATIVE OF THE CRAFT OR
CLASS."  IF CONGRESS HAD USED "TREAT WITH" IN THE SENSE OF "NEGOTIATE
WITH" IT WOULD NOT HAVE INCLUDED THIS QUOTED PHRASE. 

THE ESSENTIAL CHARACTERISTIC OF THE RAILWAY LABOR ACT OF 1926 WAS
THAT IT PROVIDED A VOLUNTARY SCHEME FOR THE ADJUSTMENT OF THE RELATIONS
BETWEEN CARRIERS AND THEIR EMPLOYEES.  TEXAS & N.O.R. CO. V. RAILWAY
CLERKS, 281 U.S. 548, 569.  THE PURPOSE OF CONGRESS IN ADDING SEC. 2,
NINTH, IS APPARENT FROM THE REPORT OF THE COMMITTEE OF THE HOUSE
ACCOMPANYING H.R. 9861, THE BILL WHICH ENACTED THE 1934 AMENDMENTS TO
THE RAILWAY LABOR ACT.  SECTION 2, NINTH, WAS TO PROVIDE MACHINERY FOR
DETERMINING THE REPRESENTATIVE OF EMPLOYEES IN CASES OF DISPUTES
BETWEEN THEM ON THAT SUBJECT. 

THE REQUIREMENT THAT THE CARRIER SHALL "TREAT" MEANS ONLY THAT, AFTER
SUCH A DISPUTE AND A CERTIFICATION BY THE BOARD, IF THE CARRIER DESIRES
TO DEAL WITH A REPRESENTATIVE OF THE CRAFT OR CLASS INVOLVED, IT MUST
TREAT WITH THE PERSON OR ORGANIZATION FOUND BY THE BOARD TO BE THE
AUTHORIZED REPRESENTATIVE, AS THE AUTHORIZED REPRESENTATIVE, AND NOT
WITH SOMEONE ELSE.  IT DOES NOT MEAN THAT AS A CONSEQUENCE OF A DISPUTE
AND CERTIFICATION (BUT NOT OTHERWISE) THE CARRIER IS UNDER A LEGALLY
ENFORCEABLE OBLIGATION TO NEGOTIATE WITH A REPRESENTATIVE OF ITS
EMPLOYEES.  TO SO HOLD IS NOT ONLY TO IGNORE THE "VOLUNTARY SCHEME" OF
THE ACT WHICH THE CHIEF JUSTICE IN THE TEXAS & N.O.R. CO. CASE SAID WAS
ITS "ESSENCE," BUT TO IMPUTE TO CONGRESS THE UNLIKELY INTENTION OF
CREATING A DUTY ON THE PART OF THE CARRIER TO NEGOTIATE WITH A
REPRESENTATIVE OF ITS EMPLOYEES ENFORCEABLE WHEN, BUT ONLY WHEN, ITS
EMPLOYEES HAVE HAD A DISPUTE AS TO WHO THAT REPRESENTATIVE SHALL BE. 

EVEN IF CONGRESS USED THE PHRASE "TREAT WITH" IN THE SENSE OF
"NEGOTIATE WITH," IT IS OBVIOUS THAT IT DID NOT INTEND THEREBY TO
CREATE A LEGALLY ENFORCEABLE OBLIGATION TO NEGOTIATE. 

A DUTY TO NEGOTIATE IS AN IMPERFECT OBLIGATION BEYOND THE POWER OF
COURTS OF EQUITY TO ENFORCE.  TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281
U.S. 548, 568. 

NEGOTIATION DEPENDS UPON THE FEELINGS, DESIRES AND MENTAL ATTITUDE OF
THOSE NEGOTIATING, AND THESE ARE COMPLETELY BEYOND JUDICIAL CONTROL. 
IN ORDER TO NEGOTIATE IN GOOD FAITH, ONE MUST HAVE THE DESIRE AND THE
WILL TO NEGOTIATE, AND THIS IMPLIES THE EXISTENCE OF A DESIRE TO MAKE
AN AGREEMENT UPON THE BEST TERMS POSSIBLE, AND TO MAKE COUNTER
PROPOSALS IF NECESSARY, AND DO EVERYTHING ELSE THAT CONSTITUTES
BARGAINING.  IT IS EASY TO IMAGINE DEMANDS, MADE UPON A CARRIER BY ITS
EMPLOYEES, SO UNREASONABLE THAT THE CARRIER COULD NOT FOR AN INSTANT
CONSIDER ACCEDING THERETO TO ANY EXTENT WHATSOEVER.  MAY THE CARRIER,
NEVERTHELESS, NEGOTIATE WITHOUT ANY GOOD FAITH INTENTION OF ACCEDING TO
SUCH DEMANDS TO ANY EXTENT?  THE ANSWER MUST BE IN THE NEGATIVE - ONE
CANNOT BE SAID, FOR EXAMPLE, TO NEGOTIATE FOR THE PURCHASE OF A HOUSE
IF HE HAVE A SETTLED DETERMINATION NEVER TO BUY A HOUSE ON ANY TERMS. 
SEE STORY, J., IN TOBEY V. BRISTOL, FED. CAS. NO. 14,065, AT P. 1321;
POMEROY'S EQ. JURIS., 4TH ED., SEC. 2180. 

IF SEC. 2, NINTH, OF THE RAILWAY LABOR ACT, REQUIRES THE RAILWAY TO
NEGOTIATE WITH THE FEDERATION, IT IS UNCONSTITUTIONAL IN THAT IT
DEPRIVES THE RAILWAY OF ITS LIBERTY AND PROPERTY IN VIOLATION OF THE
DUE PROCESS CLAUSE.  THE MANDATORY INJUNCTION DIRECTING THE RAILWAY TO
NEGOTIATE WITH THE REPRESENTATIVE CERTIFIED BY THE MEDIATION BOARD AND
EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN AGREEMENTS AND TO
SETTLE DISPUTES, IS A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

THIS COURT HAS LONG HELD THAT THE FREEDOM OF EMPLOYERS AND EMPLOYEES
TO DEAL WITH EACH OTHER ON EQUAL AND VOLUNTARY TERMS, IS PROTECTED BY
THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS.  LOCHNER
V. NEW YORK, 198 U.S. 45, 53; ADAIR V. UNITED STATES, 208 U.S. 161,
173; HITCHMAN COAL CO. V. MITCHELL, 245 U.S. 229, 250; MOREHEAD V.
TIPALDO, 298 U.S. 587.  THE LIBERTY TO REFRAIN FROM ENTERING INTO
CONTRACTS IS A PART OF LIBERTY OF CONTRACT; LEGISLATION WHICH COMPELS
THE MAKING OF AGREEMENTS IS A VIOLATION OF FUNDAMENTAL RIGHTS AND IS
VOID.  COPPAGE V. KANSAS, 236 U.S. 1, 20.  LIBERTY OF CONTRACT AS A
RIGHT IS, OF COURSE, NOT ABSOLUTE, BUT QUALIFIED.  NEBBIA V. NEW YORK,
291 U.S. 502, 523.  BUT "LEGISLATIVE ABRIDGMENT OF THAT FREEDOM CAN
ONLY BE JUSTIFIED BY THE EXISTENCE OF EXCEPTIONAL CIRCUMSTANCES. 
FREEDOM OF CONTRACT IS THE GENERAL RULE AND RESTRAINT THE EXCEPTION." 
MOREHEAD V. TIPALDO, SUPRA. 

THERE ARE HERE NO "EXCEPTIONAL CIRCUMSTANCES," NO IMMINENT
"DISASTER," (WILSON V. NEW, 243 U.S. 332, 342), NO UNUSUAL "DANGER"
(HOLDEN V. HARDY, 169 U.S. 366, 393), NO "DESPERATE" SITUATION (NEBBIA
V. NEW YORK, 291 U.S. 502, 515), NO ELEMENT OF "DECEPTION" (HALL V.
GEIGER-JONES CO., 242 U.S. 539, 551).  THE RAILWAY LABOR ACT IS
PERMANENT LEGISLATION.  ITS VALIDITY HAS BEEN SUSTAINED ONLY AS A
"VOLUNTARY SCHEME" INVOLVING NO INVASION OF CONTRACT RELATIONSHIPS. 
TEXAS & N.O.R. CO. V. RAILWAY CLERKS, SUPRA.  SEE ALSO PENNSYLVANIA R.
CO. V. U.S. RAILROAD LABOR BOARD, 261 U.S. 72; PENNSYLVANIA RAILROAD
SYSTEM V. PENNSYLVANIA R. CO., 267 U.S. 203. 

AS NOW CONSTRUED BY THE COURT BELOW, THE ACT HAS NOW LOST THAT
VOLUNTARY CHARACTER, WHICH THIS COURT DECLARED TO BE ITS "ESSENCE" AND
HAS BECOME A SYSTEM OF COMPULSION AGAINST THE EMPLOYER; YET NO SIMILAR
COMPULSION IS IMPOSED UPON THE EMPLOYEES. 

NEGOTIATION WITH RESPECT TO THE TERMS OF THE CONTRACT IS A PART OF
THE CONTRACTUAL PROCESS; AND SINCE THE EMPLOYER CANNOT BE COMPELLED TO
TAKE THE ULTIMATE STEP (COPPAGE V. KANSAS, SUPRA), IT IS PLAIN THAT HE
CANNOT BE COMPELLED TO TAKE THE INITIAL STEPS.  AS VIEWED BY THE FIFTH
AMENDMENT, THE CONTRACTUAL PROCESS IS A SINGLE ONE; ALL OF ITS ELEMENTS
ENJOY THE SAME PROTECTION.  ADAIR V. UNITED STATES, 208 U.S. 161, 173,
IN COOLEY ON TORTS; 3 WILLOUGHBY, CONST., 2D ED., 1802; ALLGEYER V.
LOUISIANA, 165 U.S. 578, 589. 

THE DOCTRINE THAT LIBERTY OF CONTRACT INCLUDES LIBERTY TO REFUSE TO
HAVE BUSINESS RELATIONS TO ANY EXTENT HAS BEEN EXEMPLIFIED IN THE CASES
UPHOLDING THE RIGHT OF EVERY MAN TO DEAL WITH, OR REFUSE TO DEAL WITH,
ANY MAN, OR CLASS OF MEN, AS HE SEES FIT, WHATEVER HIS MOTIVE OR
WHATEVER THE RESULTING INJURY, WITHOUT BEING HELD IN ANY WAY
ACCOUNTABLE (FEDERAL TRADE COMM'N V. RAYMOND BROTHERS-CLARK CO., 263
U.S. 565; UNITED STATES V. COLGATE & CO., 250 U.S. 300; GRENADA LUMBER
CO. V. MISSISSIPPI, 217 U.S. 433; GREAT A. & P. TEA CO. V. CREAM OF
WHEAT CO., 227 FED. 46), AND IN THE DECISIONS AGAINST SCHEMES OF
COMPULSORY ARBITRATION (WOLFF PACKING CO. V. INDUSTRIAL COURT, 267 U.S.
552, 569; DORCHY V. KANSAS, 264 U.S. 286). 

FURTHER, IN CONSTRUING THE TRANSPORTATION ACT, 1920, THIS COURT HAS
TWICE STRONGLY INTIMATED THAT LEGISLATION ESTABLISHING COMPULSORY
NEGOTIATION WOULD VIOLATE THE FIFTH AMENDMENT.  PENNSYLVANIA R. CO. V.
RAILROAD LABOR BOARD, 261 U.S. 72, 84, 85; PENNSYLVANIA RAILROAD SYSTEM
V. PENNSYLVANIA R. CO., 267 U.S. 203, 217.  SEE SHERMAN V. ABELES, 265
N.Y. 383; HOLCOMBE V. CREAMER, 231 MASS. 99, 109. 

THE ABRIDGMENT OF LIBERTY OF CONTRACT HERE ATTEMPTED IS ARBITRARY AND
UNREASONABLE,  - BEYOND THE LIMITS OF EFFECTIVE FEDERAL STATUTORY
CONTROL,  - BEYOND THE POWERS OF A COURT OF EQUITY.  THE DIRECTION TO
"TREAT WITH," IF IT MEANS "NEGOTIATE WITH," IS UTTERLY FUTILE.  THE
DIRECTION TO NEGOTIATE IS ALSO FUTILE SINCE THE ULTIMATE RESULT OF ANY
CONFERENCE IS ADMITTEDLY WITHOUT THE SCOPE OF CONTROL. 

THE INJUNCTION RESTRAINING THE RAILWAY FROM CONTRACTING WITH ANYONE
EXCEPT THE FEDERATION IS A VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT.  THE CARRIER IS DEPRIVED OF THE RIGHT TO BARGAIN OR
CONTRACT WITH THOSE OF ITS EMPLOYEES WHO DO NOT DESIRE SUCH
REPRESENTATION; AND THIS IS SO WHETHER THE CARRIER DESIRES TO CONTRACT
DIRECTLY WITH AN INDIVIDUAL IN THE MINORITY OR INDIRECTLY THROUGH AN
ORGANIZATION BY WHICH THE MINORITY DESIRES TO BE REPRESENTED.  IF THE
ACT EMPOWERS THE MAJORITY TO SPEAK FOR THE MINORITY, IT IN EFFECT
DELEGATES TO THE MAJORITY THE RIGHT TO PREVENT THE CARRIER FROM MAKING
A CONTRACT WITH THE MINORITY WHICH THE MINORITY MAY BE WILLING TO
MAKE.  A SOMEWHAT SIMILAR DELEGATION TO THE MAJORITY OF POWER TO BIND
THE MINORITY WAS RECENTLY CONDEMNED BY THIS COURT IN CARTER V. CARTER
COAL CO., 298 U.S. 238. 

THE ACT IS UNCONSTITUTIONAL IN ITS ENTIRETY IN THAT IT ATTEMPTS TO
REGULATE LABOR RELATIONS BETWEEN CARRIERS AND EMPLOYEES ENGAGED SOLELY
IN ACTIVITIES INTRASTATE IN CHARACTER WHICH DO NOT DIRECTLY AFFECT
INTERSTATE COMMERCE. 

THE BACK-SHOP EMPLOYEES ARE ENGAGED SOLELY IN INTRASTATE ACTIVITIES,
AS WAS FOUND BY BOTH OF THE LOWER COURTS.  THEIR WORK IS NOT SO RELATED
TO THE INTERSTATE ACTIVITIES OF THE RAILWAY AS TO ADMIT OF FEDERAL
REGULATION OF THE EMPLOYER-EMPLOYEE RELATIONSHIP.  FIRST EMPLOYERS'
LIABILITY CASES, 207 U.S. 463, 498; NEW YORK, N.H. & H.R. CO. V. BEZUE,
284 U.S. 415.  SEE ALSO INDUSTRIAL ACCIDENT COMM'N V. DAVIS, 259 U.S.
182; MINNEAPOLIS & ST. LOUIS R. CO. V. WINTERS, 242 U.S. 353. 

FURTHERMORE, THE WORK OF THE BACK-SHOP EMPLOYEES AT THE RAILWAY'S
SHOP IS MANUFACTURE, WHICH IS NOT COMMERCE.  CRESCENT COTTON OIL CO. V.
MISSISSIPPI, 257 U.S. 129; CARTER V. CARTER COAL CO., 298 U.S. 238. 

THE PROPOSITION THAT BACK-SHOP EMPLOYEES ARE SUBJECT TO FEDERAL
REGULATION BECAUSE IN THE EVENT OF A STRIKE BY SUCH WORKERS THE
INTERSTATE ACTIVITIES OF THE RAILWAY MAY BE INTERFERED WITH IS
UNTENABLE.  ACCORDING TO THAT TEST OR STANDARD, ALL ACTIVITIES, NO
MATTER HOW LOCAL, WOULD BE HELD TO DIRECTLY BURDEN OR AFFECT INTERSTATE
COMMERCE INASMUCH AS ANY INTERRUPTION OF THEM BY STRIKES TO SOME EXTENT
WOULD AFFECT THE STREAM OF INTERSTATE COMMERCE.  THE BACK-SHOP WORK IS
JUST AS LOCAL AS SIMILAR WORK DONE BY OUTSIDE CONCERNS, WHICH CLEARLY
COULD NOT BE SUBJECTED TO FEDERAL REGULATION ON THE GROUND OF POSSIBLE
STRIKE DISTURBANCE.  CARTER CASE, SUPRA. 

THE STRIKE TEST IS ALSO UNTENABLE BECAUSE, AS IS MANIFEST FROM THE
TESTIMONY, THE RAILWAY COULD PERMANENTLY CLOSE ITS SHOP TOMORROW
WITHOUT OCCASIONING ANY INTERRUPTION TO ITS INTERSTATE SERVICE.  ALL
THE WORK DONE IN THE SHOP COULD BE HANDLED BY OUTSIDE SHOPS AND THE
MATERIAL MADE AT THE SHOP COULD BE PURCHASED IN THE MARKET. 
DISTINGUISHING:  UNITED STATES V. RAILWAY EMPLOYEES' DEPARTMENT, 283
FED. 479; ID., 290 FED. 978.    AS AN ATTEMPTED REGULATION OF
INTRASTATE ACTIVITIES, THE ACT IS INSEPARABLE; IT CANNOT BE AIDED BY
CONSTRUCTION.  UNITED STATES V. REESE, 92 U.S. 214; TRADE-MARK CASES,
100 U.S. 82; JAMES V. BOWMAN, 190 U.S. 127; ILLINOIS CENTRAL R. CO. V.
MCKENDREE, 203 U.S. 514; EMPLOYERS' LIABILITY CASES, SUPRA; CROWELL V.
BENSON, 285 U.S. 22, 76-77(DISSENTING OPINION). 

NOR DOES THE SEPARABILITY PROVISION SAVE THE ACT OR ANY PART OF IT.
HILL V. WALLACE, 259 U.S. 44, 70; RAILROAD RETIREMENT BOARD V. ALTON R.
CO., 295 U.S. 330, 361. 

THE CERTIFICATION OF THE MEDIATION BOARD IS A NULLITY (A) BECAUSE IT
FAILS TO SHOW THAT A MAJORITY OF ANY CRAFT OR CLASS OF EMPLOYEES VOTED
IN FAVOR OF THE FEDERATION, OR EVEN THAT SUCH A MAJORITY PARTICIPATED
IN THE ELECTION, AND (B) BECAUSE IT IS IMPOSSIBLE TO TELL FROM IT WHAT
THE RESULT OF THE ELECTION WOULD HAVE BEEN WITHOUT THE VOTES OF THE
BACK-SHOP EMPLOYEES. 

THE INJUNCTION IS CONTRARY TO THE NORRIS-LAGUARDIA ACT. 

THE HISTORICAL DEVELOPMENT OF THE RAILWAY LABOR ACT, AS AMENDED IN
1934, INDICATES THE INTENT TO IMPOSE AN ENFORCEABLE LEGAL OBLIGATION
UPON CARRIERS TO TREAT WITH THE TRUE REPRESENTATIVE OF ANY CRAFT OR
CLASS OF THEIR EMPLOYEES CERTIFIED AS SUCH BY THE NATIONAL MEDIATION
BOARD.  THE ACT WAS AMENDED TO REMEDY AN EXISTING EVIL.  CARRIERS WERE
AVOIDING ANY TREATING WITH THE TRUE REPRESENTATIVES OF EMPLOYEES,
THROUGH THE SUBTERFUGE OF FOMENTING AND KEEPING IN EXISTENCE A
REPRESENTATION DISPUTE BETWEEN A COMPANY UNION AND THE STANDARD LABOR
ORGANIZATION WHICH THE EMPLOYEES DESIRED.  IN SO FAR AS THE EVIDENCE
PRESENTED TO THE CONGRESSIONAL COMMITTEE DEMONSTRATED, NO CARRIER WAS
THEN REFUSING TO TREAT WITH THE TRUE REPRESENTATIVES OF EMPLOYEES SAVE
UNDER THE CLOAK OF A CLAIMED REPRESENTATION DISPUTE.  THUS IF IT BE
TRUE THAT CONGRESS DID NOT INCLUDE IN THE ACT ANY COMPULSORY PROVISIONS
REQUIRING CARRIERS TO "TREAT" WHERE NO SUCH DISPUTE EXISTED, NO
CONCLUSION CAN BE DRAWN FROM THAT FACT AS TO ITS INTENTION WITH REGARD
TO THE ENFORCEABILITY OF SUCH AN OBLIGATION IN SITUATIONS WHERE A
DISPUTE DID EXIST. 

STATUTES MUST BE CONSTRUED IN RELATION TO THE EVILS WHICH THEY WERE
DESIGNED TO CURE.  WARNER V. GOLTRA, 293 U.S. 155. 

BUT THE ACT DOES IMPOSE COMPULSORY OBLIGATIONS UPON CARRIERS TO
"TREAT" IN SOME MEASURE WITH THE REPRESENTATIVES OF THEIR EMPLOYEES
WHETHER A REPRESENTATION DISPUTE EXISTS OR NOT.  PETITIONER'S ARGUMENT
IN THIS CONNECTION RESTS SOLELY ON THE PROVISIONS OF PARAGRAPHS FIRST
AND SECOND OF SEC. 2 OF THE ACT.  THESE ARE COPIED SUBSTANTIALLY FROM
THE RAILWAY LABOR ACT OF 1926, WHICH IN TURN TOOK THEM FROM SEC. 301 OF
THE TRANSPORTATION ACT OF 1920.  AS A PART OF THE 1920 ACT THIS
LANGUAGE DID NOT IMPOSE AN ENFORCEABLE OBLIGATION.  AS ADOPTED INTO THE
RAILWAY LABOR ACT OF 1926, IT WAS ALSO HELD UNENFORCEABLE IN THE CASE
OF MALONE V. GARDNER, 62 F.(2D) 15.  THE PETITIONER ASSERTS THAT THIS
LANGUAGE AS USED IN THE ACT OF 1934 PROVIDES AN UNENFORCEABLE
OBLIGATION UNDER THE FAMILIAR "COPIED STATUTE" RULE OF INTERPRETATION. 
THAT LANGUAGE WHICH CREATES AN UNENFORCEABLE OBLIGATION WHEN A PART OF
A GENERALLY UNENFORCEABLE STATUTE RETAINS ITS CHARACTER WHEN IT BECOMES
A PART OF AN ENFORCEABLE ACT IS NOT AN INEVITABLE CONCLUSION.  BUT,
REGARDLESS OF THE ENFORCEABILITY OF THE PROVISIONS OF SEC. 2, FIRST AND
SECOND, THERE ARE OTHER PROVISIONS OF THIS AMENDED STATUTE WHICH DO
CREATE ENFORCEABLE OBLIGATIONS UPON ALL CARRIERS TO TREAT OR CONFER
WITH THE REPRESENTATIVES OF THEIR EMPLOYEES UNDER CERTAIN
CIRCUMSTANCES. 

REPRESENTATIVES OF THEIR EMPLOYEES "FOR THE PURPOSES OF THIS ACT,"
WHICH MUST REFER TO THE SETTLEMENT OF DISPUTES BETWEEN CARRIERS AND
EMPLOYEES.  TWO TYPES OF DISPUTES ARE CONTEMPLATED, THOSE INVOLVING THE
MAKING OR CHANGING OF AGREEMENTS CONCERNING RULES, RATES OF PAY, OR
WORKING CONDITIONS, AND THOSE INVOLVING LOCAL GRIEVANCES OR DISPUTES
CONCERNING THE INTERPRETATION OR APPLICATION OF AGREEMENTS ALREADY
MADE. 

THE SYSTEM SET UP BY THE STATUTE FOR ALL CARRIERS REGARDLESS OF
WHETHER A REPRESENTATION DISPUTE EXISTS OR NOT, CONTEMPLATES A MEASURE
OF COMPULSION IN THE MATTER OF TREATING WITH REPRESENTATIVES OF
EMPLOYEES IN THE SETTLEMENT OF BOTH TYPES OF DIFFERENCES. 

THE PROVISIONS OF SEC. 6 OF THE ACT RELATING TO CONFERENCES BETWEEN
THE PARTIES ARE CERTAINLY ENFORCEABLE.  TO THIS EXTENT UNQUESTIONABLY
CONGRESS HAS IMPOSED A LEGAL OBLIGATION UPON ALL CARRIERS TO "TREAT"
WITH EMPLOYEE REPRESENTATIVES. 

THE OTHER TYPE OF CASE, I.E., ARISING OUT OF GRIEVANCES OR OUT OF THE
INTERPRETATION OR APPLICATION OF AGREEMENTS, IS TO BE HANDLED IN A
DIFFERENT MANNER.  THE PARTIES, HOWEVER, ARE AGAIN COMMANDED TO CONFER
WITH REGARD TO THE MATTER.  IF CONFERENCES FAIL, THEN THE DISPUTE MAY
BE REFERRED TO THE NATIONAL RAILROAD ADJUSTMENT BOARD FOR
DETERMINATION. 

EITHER METHOD OF PROCEDURE AS OUTLINED BY THE STATUTE RESULTS
ULTIMATELY IN THE PARTIES COMING UNDER DEFINITE LEGAL OBLIGATIONS. 
DECISIONS OF THE NATIONAL RAILROAD ADJUSTMENT BOARD MAY BE ENFORCED BY
DEFINITELY OUTLINED PROCEDURE.  ACTS OF THE NATIONAL MEDIATION BOARD
ARE NOT THUS ENFORCEABLE, BUT A TAKING OF JURISDICTION BY THAT BOARD
PLACES THE PARTIES UNDER A CERTAIN LEGAL DUTY TO MAINTAIN THE STATUS
QUO UNTIL ITS FUNCTIONS HAVE BEEN PERFORMED. 

WHERE THE ULTIMATE END OF THE STATUTORY PROCESS IS THE UNDOUBTED
CREATION OF ENFORCEABLE OBLIGATIONS, GENERAL STATEMENTS OF DUTY ARE
GIVEN COLOR BY THE PROCEEDINGS TO WHICH THEY ARE RELATED.  ACCORDINGLY,
THERE IS SPECIFICALLY IMPOSED UPON ALL CARRIERS AN OBLIGATION TO CONFER
OR TREAT WITH EMPLOYEE REPRESENTATIVES "FOR THE PURPOSES OF THIS ACT,"
I.E., THE ADJUSTMENT OF DISPUTES BETWEEN THEM. 

THE OBLIGATION TO "TREAT" IMPOSED BY SEC. 2, NINTH, IS SUFFICIENTLY
DEFINITE TO BE CAPABLE OF ENFORCEMENT BY INJUNCTION. 

COURTS ARE FREQUENTLY CALLED UPON TO PASS UPON THE GOOD FAITH OF A
PARTY AND TO ESTIMATE HIS STATE OF MIND BY HIS ACTS.  THAT BAD FAITH
MAY BE SUCCESSFULLY CONCEALED HAS NEVER BEEN ACCEPTED AS A VALID REASON
WHY COURTS SHOULD BE BARRED FROM INQUIRING INTO THE FACTS AND FROM
SEEKING TO ENFORCE THE LAW.  THE DIFFICULTY, IF ANY, IS ONE OF PROOF
AND NOT OF EQUITY JURISDICTION. 

IT MUST BE KEPT IN MIND THAT THE CARRIER WAS NOT ONLY ORDERED TO
TREAT WITH THE FEDERATION AS THE REPRESENTATIVE OF THE EMPLOYEES IN
QUESTION, BUT AS A NECESSARY COROLLARY WAS ALSO ORDERED NOT TO TREAT
WITH ANY OTHER PERSON OR ORGANIZATION CLAIMING TO BE SUCH
REPRESENTATIVE.  NOT ONLY IS THE NEGATIVE PHASE OF THIS DECREE
DEFINITELY ENFORCEABLE, BUT IT ALSO ASSISTS IN THE ENFORCEMENT OF THE
POSITIVE PHASE.  THIS ASSISTANCE GROWS OUT OF THE ECONOMIC RELATIONS OF
THE PARTIES.  IN DEALING WITH NUMEROUS EMPLOYEES SCATTERED OVER THE
MANY MILES OF TERRITORY THROUGH WHICH A RAILROAD SYSTEM EXTENDS, IT HAS
BEEN CONSIDERED NECESSARY BY CARRIERS THAT THEY NEGOTIATE GENERAL
AGREEMENTS DEFINING THE RIGHTS OF WHOLE CLASSES OR CRAFTS OF EMPLOYEES
AS UNITS.  IF THE CARRIER IS PREVENTED FROM TREATING WITH REGARD TO THE
NEGOTIATION OF SUCH AGREEMENTS WITH OTHER PARTIES, ITS OWN ECONOMIC
SELF-INTEREST DICTATES THAT IT TREAT FOR THAT PURPOSE WITH THE
CERTIFIED REPRESENTATIVE OF THE EMPLOYEES, AND IN GOOD FAITH. 

DOES NOT VIOLATE THE FIFTH AMENDMENT.  DUNCAN V. MISSOURI, 152 U.S.
377; WAGNER V. LESER, 239 U.S. 207; CHICAGO, R.I. & P.R. CO. V. UNITED
STATES, 284 U.S. 79. 

IF THE STATUTE HAS A "REASONABLE RELATION TO A PROPER USE" (LIBERTY
WAREHOUSE CO. V. BURLEY TOBACCO ASSN., 276 U.S. 71); IS "REASONABLY
NECESSARY TO EFFECT ANY OF THE GREAT PURPOSES FOR WHICH THE NATIONAL
GOVERNMENT WAS CREATED" (HIGHLAND V. RUSSELL CAR CO., 279 U.S. 253);
AND IS NOT "INAPPROPRIATE" TO REMEDY "THE EVIL AIMED AT" (PACKER CORP.
V. UTAH, 285 U.S. 104), THE STATUTE MUST BE HELD VALID WHETHER
CONTRACTS OR CONTRACT RIGHTS ARE AFFECTED OR NOT. 

CONGRESS, IN THE EXERCISE OF ITS LEGISLATIVE DISCRETION, DEEMED IT
NECESSARY TO THE SUCCESSFUL FUNCTIONING OF ITS PLAN TO DEFINE THE
NATURE OF THE EMPLOYEES' GROUPS THROUGH WHICH THE CONTEMPLATED
BARGAINING WAS TO BE CARRIED ON.  IN SELECTING THE "CRAFT OR CLASS OF
EMPLOYEES" AS SUCH GROUP, CONGRESS WAS MAKING NO ARBITRARY
DETERMINATION.  IT WAS MERELY RECOGNIZING BARGAINING GROUPS WHICH WERE
ALREADY IN EXISTENCE AND FUNCTIONING AS SUCH ON VIRTUALLY ALL OF THE
NATION'S CARRIERS. 

IT IS FURTHER APPARENT THAT THE CRAFT OR CLASS, LIKE ANY OTHER GROUP
OF INDIVIDUALS, CAN ACT COLLECTIVELY ONLY THROUGH REPRESENTATIVES
SELECTED BY IT. THE NEXT STEP LOGICALLY, THEREFORE, WAS FOR CONGRESS TO
ESTABLISH THE MEANS BY WHICH SUCH REPRESENTATIVES SHOULD BE CHOSEN.  IT
WAS NOT ONLY LOGICAL, BUT NECESSARY, IN ORDER TO PERFECT THE EXISTING
SYSTEM, THAT CONGRESS ESTABLISH A METHOD OF CHOOSING THE NECESSARY
REPRESENTATIVES. 

THE ACT DOES NOT REQUIRE A CARRIER TO ENTER INTO ANY CONTRACT, BUT
MERELY THAT IT SHALL NEGOTIATE WITH REGARD TO THE MATTER.  THE CLAIMED
RIGHT OF FREEDOM TO ABSTAIN FROM NEGOTIATIONS IS ONE WHOSE EXISTENCE OR
NON-EXISTENCE CAN HAVE NO LEGAL OR PRACTICAL EFFECT UPON THE RIGHTS OF
THE PETITIONER.  THE PURPOSE OF THE FIFTH AMENDMENT WAS TO PROVIDE A
PROTECTION FOR VALUABLE INDIVIDUAL RIGHTS.  UNTIL VALUABLE RIGHTS ARE
INFRINGED, PROTECTION OF THE AMENDMENT CANNOT BE INVOKED. 

THE CLAIM THAT THE CARRIER MUST BE FREE TO TREAT WITH ANY
REPRESENTATIVES OF ANY GROUP OF EMPLOYEES IT CHOOSES MEANS THAT THE
CARRIER, NOT THE CONGRESS, SHOULD HAVE THE POWER TO DETERMINE THE
NATURE OF THE COLLECTIVE BARGAINING GROUP OF EMPLOYEES, AND SHOULD BE
ABLE TO DEAL WITH GROUPS SMALLER IN SIZE THAN THE CRAFT OR CLASS, I.E.,
DISGRUNTLED OR FAVORED MINORITIES WITHIN THE CRAFT OR CLASS.  AS A
PRACTICAL MATTER, THIS ASSERTED RIGHT IS ONE OF MERE ACADEMIC VALUE TO
THE PETITIONER, EXCEPT AS IT MAY BE USED FOR THE PURPOSE OF AVOIDING OR
BREAKING DOWN THE REGULATORY SCHEME EXEMPLIFIED BY THE RAILWAY LABOR
ACT, A RESULT WHICH WOULD CERTAINLY FOLLOW ITS SUCCESSFUL ASSERTION. 

BY VIRTUE OF THE PRACTICE LONG RECOGNIZED IN THE RAILROAD INDUSTRY,
LABOR AGREEMENTS SO NEGOTIATED BY AN ACCREDITED REPRESENTATIVE SELECTED
BY THE MAJORITY OF THE CLASS OR CRAFT, HAVE BEEN MADE APPLICABLE TO ALL
THE EMPLOYEES CONSTITUTING THE CLASS OR CRAFT.  ANY DEPARTURE FROM THIS
ARRANGEMENT IN THE NATURE OF ANOTHER AGREEMENT APPLICABLE ONLY TO THE
INDIVIDUALS CONSTITUTING A MINORITY GROUP WOULD INEVITABLY BECOME
SUBVERSIVE OF THE AGREEMENT MADE BY THE REPRESENTATIVE OF THE MAJORITY
GROUP. 

THE LABOR AGREEMENTS COVERING RATES OF PAY, RULES AND WORKING
CONDITIONS, WITH WHICH THE RAILWAY LABOR ACT IS CONCERNED, ARE TO BE
DISTINGUISHED FROM THE INDIVIDUAL CONTRACTS OF EMPLOYMENT WITH EACH
EMPLOYEE.  THEY ARE THE GENERAL RULES AND REGULATIONS PROMULGATED BY
THE EMPLOYER FOR THE GOVERNMENT OF ALL EMPLOYEES OF A PARTICULAR CLASS;
BUT INSTEAD OF THE EMPLOYER ARBITRARILY ISSUING SUCH RULES WITHOUT
CONSULTING THE EMPLOYEES, THEY ARE FORMULATED IN JOINT CONFERENCES AND
ADOPTED BY MUTUAL AGREEMENT. 

FROM A SIMPLE RAILROAD OPERATING STANDPOINT, IT WOULD BE QUITE
IMPRACTICABLE FOR TWO GROUPS, MAJORITY AND MINORITY OF THE SAME CLASS
OR CRAFT OF EMPLOYEES, JOINTLY CONSTITUTING ONE OPERATING OR SERVICE
ORGANIZATION, TO FUNCTION EFFICIENTLY UNDER TWO DIVERGENT SETS OF LABOR
RULES. 

STILL OTHER COMPLICATIONS WOULD ARISE.  MORE THAN ONE AGREEMENT
APPLYING TO THE SAME CLASS OR CRAFT OF EMPLOYEES WOULD MAKE IT
NECESSARY AT THE OUTSET TO IDENTIFY THE VERY INDIVIDUALS TO WHOM THE
TERMS OF EACH AGREEMENT APPLIED.  THUS THE INDIVIDUALS CONSTITUTING THE
MAJORITY GROUP AND THOSE CONSTITUTING THE MINORITY GROUP WOULD HAVE TO
BE LISTED FOR PAYROLL AND OTHER ACCOUNTING NEEDS.  THE ACCOUNTING
COMPLICATIONS ARISING IN THEMSELVES WOULD BE EXPENSIVE.  THE MAJORITY
AND MINORITY EMPLOYEES WOULD BECOME KNOWN, WITH THE RESULT, CONSIDERING
THE CONTROVERSIAL NATURE OF THE SITUATION AS A WHOLE, THAT ALL KINDS OF
DISTURBANCES GROWING OUT OF PROSELYTING AND FAVORITISM WOULD ENSUE TO
IMPAIR THE MORALE OF THE LABOR FORCES. 

UNDER WHAT CONDITIONS IS THE EMPLOYEE TO WORK WHO ELECTS NEITHER THE
STANDARDS OF THE MAJORITY NOR THE MINORITY GROUP?  MAY HE MAKE STILL
ANOTHER AGREEMENT?  IF SO, WHERE IS THE PROCESS TO END?  SUCH IS THE
SITUATION WHICH THE RAILWAY LABOR ACT AND PRIOR RAILWAY LABOR
LEGISLATION SOUGHT TO CORRECT. 

COLLECTIVE BARGAINING HAS BEEN RECOGNIZED BY THIS COURT AS LEGITIMATE
AND SALUTARY.  ITS FOSTERING AND PROTECTION OF THE NATION'S CARRIERS AS
A MEANS OF SETTLING DISPUTES BETWEEN THEM AND THEIR EMPLOYEES HAS BEEN
RECOGNIZED AS A LEGITIMATE CONGRESSIONAL FUNCTION.  TEXAS & N.O.R. CO.
V. RAILWAY CLERKS, 281 U.S. 548. 

THE PETITIONER IS A COMMON CARRIER, A PUBLIC UTILITY, THE OPERATOR OF
A BUSINESS PECULIARLY CHARGED WITH THE PUBLIC INTEREST.  ITS BUSINESS
MAY, THEREFORE, BE REGULATED TO A GREATER EXTENT THAN IS THE CASE WITH
OTHER INDUSTRIES WITHOUT INFRINGING UPON THE CONSTITUTIONAL GUARANTEE
OF FREEDOM OF CONTRACT.  WILSON V. NEW, 243 U.S. 332. 

IN MANY RESPECTS, THE PRIVATE RIGHTS OF CARRIERS TO ENTER INTO
CONTRACTS HAVE BEEN SUBJECTED TO UNIQUE RESTRICTIONS CONFORMING TO THE
IMPORTANCE OF THE SERVICES WHICH THEY PERFORM FOR THE PUBLIC AND THE
LIABILITY OF THE PUBLIC TO HARM IF THAT SERVICE IS NOT CONSTANTLY AND
JUSTLY RENDERED, ALL WITHOUT VIOLATION OF THE FIFTH AMENDMENT.  THAT
THE PUBLIC IS VITALLY CONCERNED IN LABOR DISPUTES INVOLVING CARRIERS
AND EMPLOYEES IS OBVIOUS.  THE RAILWAY LABOR ACT IS DESIGNED TO
SAFEGUARD THIS PUBLIC INTEREST. 

DISTINGUISHING:  CARTER V. CARTER COAL CO., 298 U.S. 238.  THE
DECISION IN THE CARTER CASE IS NOT BINDING UPON THE COURT IN THIS ONE
BECAUSE OF THE VAST AND FUNDAMENTAL DIFFERENCES BETWEEN THE STATUTES
INVOLVED, BOTH AS TO SUBJECT MATTER AND AS TO THEIR LEGAL
CONSEQUENCES.    THE RAILWAY LABOR ACT IS A VALID EXERCISE OF THE
INTERSTATE COMMERCE POWER. 

THE CONSIDERATION OF WHETHER A PERSON OR THING IS DIRECTLY ENGAGED IN
OR BEING USED IN INTERSTATE COMMERCE AFFORDS AT BEST A SORT OF RULE OF
THUMB METHOD OF DETERMINING WHETHER HE OR IT COMES WITHIN THE SCOPE OF
FEDERAL REGULATORY POWER.  IF SO ENGAGED OR USED, FEDERAL AUTHORITY MAY
DOUBTLESS BE APPLIED.  IF NOT, THE OPPOSITE CONCLUSION DOES NOT
FOLLOW.  THE AUTHORITY OF CONGRESS IS NOT GOVERNED BY THE EMPLOYMENT OF
PEOPLE OR THINGS IN INTERSTATE COMMERCE, BUT BY THE EFFECTS UPON THAT
COMMERCE OF THE ACTS OR PRACTICES SOUGHT TO BE REGULATED.  INDEED, THE
AUTHORITY OF CONGRESS HAS BEEN HELD TO EXTEND TO AT LEAST TWO CLASSES
OF CASES WHERE PURELY INTRASTATE MATTERS ARE OR MAY BE INVOLVED. 
FIRST, THE FEDERAL GOVERNMENT MAY EXERCISE ITS POWER TO PREVENT DIRECT
INJURY OR INTERRUPTION TO THE FLOW OF INTERSTATE COMMERCE WHATEVER MAY
BE THE SOURCE OF THAT INJURY OR INTERRUPTION.  SECOND, WHERE THE
OPERATIONS OF A CARRIER ARE SUCH THAT ITS INTERSTATE AND INTRASTATE
ACTIVITIES ARE SO INEXTRICABLY COMMINGLED THAT THEY CANNOT BE SEPARATED
FOR THE PURPOSES OF REGULATION, THE POWER OF CONGRESS HAS BEEN HELD TO
EXTEND TO BOTH. 

AS FOR INTERRUPTIONS TO INTERSTATE COMMERCE, THE DISASTROUS RESULTS
OF STRIKES ON INTERSTATE RAILROADS IS A MATTER OF COMMON KNOWLEDGE. 

IF THE GOVERNMENT OF THE UNITED STATES HAS THE POWER TO PREVENT SUCH
INTERRUPTIONS TO COMMERCE BY INJUNCTION AFTER THE INTERRUPTION HAS
BEGUN, IT HAS EQUAL POWER TO ELIMINATE THE SOURCE OF THE INTERRUPTION
BEFORE IT OCCURS. 

REASONING FROM PAST EXPERIENCES, THE CONGRESS CONCLUDED THAT THE
INTERRUPTIONS WHICH IT SOUGHT TO PREVENT MIGHT ARISE AS EASILY FROM
DISPUTES INVOLVING SHOP EMPLOYEES AS FROM ANY OTHER CLASS.  NICE
DISTINCTIONS BETWEEN EMPLOYEES ENGAGED IN INTERSTATE COMMERCE AND THOSE
NOT SO ENGAGED, OR BETWEEN BACK-SHOP EMPLOYEES AND OTHERS, WERE NOT
ATTEMPTED, FOR THE REASON THAT NO SUCH DISTINCTIONS HAVE EVER BEEN
APPARENT IN THE RESULTS OF THE DISPUTES INVOLVING THESE VARIOUS
GROUPS.  WHATEVER THE GROUP, THE ULTIMATE RESULT OF A SERIOUS DISPUTE
BETWEEN A CARRIER AND ITS EMPLOYEES HAS BEEN THE SAME - INTERRUPTION TO
INTERSTATE COMMERCE, DIRECT AND DISASTROUS.  ACCORDINGLY, CONGRESS
SOUGHT TO APPLY THE PROCEDURE SET UP IN THE STATUTE TO ALL CLASSES OF
CARRIERS' EMPLOYEES DEFINED AS SUCH BY THE RULINGS OF THE INTERSTATE
COMMERCE COMMISSION.  IN SO DOING, CONGRESS WAS APPLYING NO NOVEL
CONSTITUTIONAL THEORY, BUT WAS TREADING A PATH WELL MARKED BY THE
DECISIONS OF THIS COURT.  SOUTHERN RY. CO. V. UNITED STATES, 222 U.S.
20; TEXAS & PACIFIC R. CO. V. RIGSBY, 241 U.S. 33; SECOND EMPLOYERS'
LIABILITY CASES, 223 U.S. 1; BALTIMORE & OHIO R. CO. V. INTERSTATE
COMMERCE COMM'N, 221 U.S. 612; WILSON V. NEW, 243 U.S. 332; NEW ENGLAND
DIVISIONS CASE, 261 U.S. 184; DAYTON-GOOSE CREEK RY. V. UNITED STATES,
263 U.S. 456. 

THE DIFFICULTY EXPERIENCED BY THE COURTS IN DETERMINING WHETHER A
SINGLE EMPLOYEE IS ENGAGED IN INTERSTATE COMMERCE AT A SINGLE MOMENT OF
TIME (IN APPLYING THE SECOND FEDERAL EMPLOYERS' LIABILITY ACT) IS
ATTESTED BY THE VAST NUMBER OF CASES ON THE POINT.  THE DECISIONS, BOTH
STATE AND FEDERAL, ARE HOPELESSLY CONTRADICTORY, AND MANY SITUATIONS
HAVE BEEN PRESENTED TO THIS COURT FOR FINAL ADJUDICATION.  THE
CONFUSION WHICH WOULD FOLLOW ANY ATTEMPT TO SEPARATE EMPLOYEES FOR THE
PURPOSE OF REGULATION OF LABOR RELATIONS WITH THEIR EMPLOYING CARRIERS
WOULD BE SO GREAT AS TO RENDER ANY SUCH PLAN UNWORKABLE.  HERE WE WOULD
HAVE INVOLVED NOT A SINGLE EMPLOYEE, NOR A SINGLE MOMENT OF TIME, AS IN
A PERSONAL INJURY CASE, BUT NUMBERS OF EMPLOYEES AND LONG COURSES OF
RELATIONSHIPS BETWEEN THEM AND THEIR EMPLOYER EXTENDING OVER MANY
YEARS.  CONSIDER TWO GROUPS OF EMPLOYEES OF THE SAME CARRIER PERFORMING
SIMILAR TASKS, E.G., THOSE PERFORMED BY MACHINISTS, THE ONE GROUP
MAKING RUNNING REPAIRS, THE OTHER WORKING IN THE BACK SHOP, THE ONE
THEREFORE WORKING IN INTERSTATE COMMERCE, THE OTHER NOT.  BOTH GROUPS
BELONG TO THE SAME CRAFT, USUALLY BOTH BELONG TO THE SAME LABOR
ORGANIZATION.  THEIR COMMON INTERESTS ARE VIRTUALLY IDENTICAL.  LABOR
UNREST MAY EASILY SPREAD FROM ONE TO THE OTHER.  NO PRACTICAL
DISTINCTION IS MAINTAINED BETWEEN THEM IN THE OPERATION OF A RAILROAD. 
NEITHER GROUP IS STATIC.  A GIVEN EMPLOYEE MAY BE IN ONE CATEGORY TODAY
AND THE OTHER TOMORROW, OR IN ANY ONE DAY HE MAY PERFORM TASKS
APPERTAINING TO BOTH.  ALL THIS IS STRIKINGLY ILLUSTRATED BY THE
SITUATION NOW EXISTING ON THE VIRGINIAN RAILROAD. 

THAT THIS CARRIER HAS ATTEMPTED NO SUCH DIVISION IN PRACTICE AS IT
SAYS EXISTS BETWEEN BACK-SHOP EMPLOYEES AND OTHERS, IN REGULATING ITS
OWN BUSINESS AFFAIRS, IS THE BEST EVIDENCE THAT SUCH A DIVISION IS
ENTIRELY IMPRACTICABLE. 

IN SCHECHTER POULTRY CORP. V. UNITED STATES, SUPRA, AND CARTER V.
CARTER COAL CO., SUPRA, THIS COURT WAS CAREFUL TO DISTINGUISH BETWEEN
THE PRODUCTION OF SUCH GOODS AS WOULD ULTIMATELY BE TRANSPORTED IN
INTERSTATE COMMERCE, THE HANDLING OF THOSE GOODS AFTER COMMERCE HAD
CEASED, AND THE COMMERCIAL PROCESS ITSELF.  LABOR DISPUTES IN
BUSINESSES WHOSE FUNCTION IS PRODUCTION OR DISTRIBUTION, THOUGH THEY
MIGHT BE EFFECTIVE TO PREVENT THE GOODS IN QUESTION FROM ENTERING
INTERSTATE COMMERCE, AND BY INFERENCE THOUGH THEY MIGHT SO CLOG THE
MACHINERY OF DISTRIBUTION AS TO ULTIMATELY DAM UP THE COMMERCIAL
STREAM, WERE CONSIDERED BY THE COURT AS AFFECTING INTERSTATE COMMERCE
ONLY INDIRECTLY.  THOSE CASES ESTABLISH NO RULE OF LAW EXEMPTING THE
FIELD OF LABOR RELATIONS AS SUCH FROM THE SCOPE OF FEDERAL REGULATION. 
THEY MERELY DEFINE COMMERCE AND POINT OUT THOSE ACTS WHICH MAY BE SAID
TO DIRECTLY AFFECT IT.  THE DOCTRINE EXPRESSED IN TEXAS & N.O.R. CO. V.
RAILWAY CLERKS HAS NOT BEEN DISTURBED OR MODIFIED BY THESE LATER
DECISIONS. 

THE CERTIFICATION OF THE NATIONAL MEDIATION BOARD IS VALID. 

THE NORRIS-LAGUARDIA ACT IS NOT APPLICABLE. 

THE RAILWAY LABOR ACT MAY CONSTITUTIONALLY BE APPLIED TO COVER
PERSONS EMPLOYED IN THE BACK SHOPS OF A CARRIER EVEN THOUGH SUCH
PERSONS ARE NOT THEMSELVES ENGAGED IN INTERSTATE COMMERCE.  THIS COURT
HAS ALREADY UPHELD THE VALIDITY OF THE ACT AS APPLIED TO CLERKS, WHOSE
WORK IS OBVIOUSLY INTRASTATE IN NATURE.  TEXAS & N.O.R. CO. V. RAILWAY
CLERKS, 281 U.S. 548.  THE PURPOSE OF THE ACT WAS TO PREVENT STRIKES
WHICH THREATENED THE SERVICE OF THE NECESSARY AGENCIES OF INTERSTATE
TRANSPORTATION.  LABOR DISPUTES BETWEEN CARRIERS AND THEIR SHOP
EMPLOYEES WOULD BOTH ENDANGER THE SAFETY OF INTERSTATE TRANSPORTATION
AND DIRECTLY OBSTRUCT ITS MOVEMENT.  MOREOVER, A DISPUTE BETWEEN A
CARRIER AND ITS BACK-SHOP EMPLOYEES WOULD NECESSARILY BE COMMUNICATED
TO EMPLOYEES ENGAGED IN INTERSTATE COMMERCE, INASMUCH AS THE MECHANICAL
DEPARTMENT OF A CARRIER, WHICH INCLUDES BOTH BACK-SHOP EMPLOYEES AND
THOSE ENGAGED IN MAKING RUNNING REPAIRS, IS OPERATED AND ORGANIZED AS A
UNIT.  THE PRINCIPLE OF THE EMPLOYERS' LIABILITY CASES, 207 U.S. 463,
DOES NOT APPLY HERE.  ALTHOUGH INTERSTATE COMMERCE MIGHT NOT BE
AFFECTED AT ALL BY THE RULE OF LIABILITY APPLICABLE TO SHOPMEN'S
INJURIES, IT WOULD BE DIRECTLY OBSTRUCTED IF SHOPMEN CEASED TO WORK AND
IF RAILROAD EQUIPMENT WAS NOT REPAIRED. 

IT IS DOUBTFUL WHETHER THERE ARE ANY RAILROAD EMPLOYEES WHOSE WORK IS
NOT ESSENTIAL TO THE EFFECTIVE FUNCTIONING OF THE TRANSPORTATION SYSTEM
OR AS TO WHOM IT MIGHT NOT BE SAID THAT LABOR DISPUTES BETWEEN THEM AND
THEIR EMPLOYERS WOULD INTERFERE WITH INTERSTATE COMMERCE.  BUT IF IT BE
ASSUMED THAT THERE IS A SMALL PROPORTION OF EMPLOYEES AS TO WHOM THE
ACT COULD NOT CONSTITUTIONALLY BE APPLIED, IT IS CLEAR THAT CONGRESS
WOULD HAVE INTENDED THE ACT TO STAND AS TO THE REMAINDER. 

PETITIONER DOES NOT CHALLENGE THE ENFORCEABILITY OR LEGALITY OF
SUBDIVISIONS THIRD AND FOURTH OF SEC. 2, WHICH TOGETHER FORM ONE OF THE
ALTERNATIVE STATUTORY BASES FOR THE NEGATIVE PART OF THE DECREE, BUT
CLAIMS THAT THE AFFIRMATIVE DUTY IMPOSED UPON CARRIERS TO TREAT WITH
THE REPRESENTATIVES OF THEIR EMPLOYEES IS NOT ENFORCEABLE.  A REVIEW OF
THE HISTORY AND CONTEXT OF THESE SECTIONS, HOWEVER, SHOWS THAT CONGRESS
INTENDED THE OBLIGATIONS IMPOSED BY PARAGRAPHS FIRST, SECOND, AND NINTH
OF SEC. 2, TO BE BOTH MANDATORY AND ENFORCEABLE. 

ENFORCEMENT OF PARAGRAPHS FIRST, SECOND, AND NINTH OF SEC. 2 IS IN
FACT ESSENTIAL TO THE SUCCESS OF THE STATUTORY PLAN FOR AMICABLE
SETTLEMENT OF DISPUTES THROUGH CONFERENCES BETWEEN REPRESENTATIVES OF
THE PARTIES.  THE PURPOSE AND EFFECT OF THESE PROVISIONS IS TO REQUIRE
CARRIERS AND THEIR EMPLOYEES TO USE THE MACHINERY ESTABLISHED BY THE
ACT FOR THE ATTAINMENT OF INDUSTRIAL PEACE; IT DOES NOT CHANGE THE
BASIC PRINCIPLES OF THE ACT, WHICH RECOGNIZE THAT PEACE CAN BE ACHIEVED
ONLY THROUGH CONFERENCES AND VOLUNTARY AGREEMENTS. 

THERE IS NO INHERENT DIFFICULTY IN THE WAY OF EQUITABLE ENFORCEMENT
OF THE STATUTORY REQUIREMENT THAT CARRIERS CONFER WITH THE
REPRESENTATIVES OF THEIR EMPLOYEES.  THE STATUTE DOES NOT ATTEMPT TO
COMPEL AGREEMENT, AND THE DECREE ONLY REQUIRES THE CARRIER TO MEET
REPRESENTATIVES OF EMPLOYEES IN CONFERENCE. 

THE NEGATIVE REQUIREMENT IN THE DECREE THAT PETITIONER REFRAIN FROM
ENTERING INTO COLLECTIVE LABOR AGREEMENTS EXCEPT WITH RESPONDENT MAY BE
REGARDED AS ONE WAY IN WHICH A COURT OF EQUITY ENFORCES THE AFFIRMATIVE
STATUTORY OBLIGATION.  OR IT MAY REST UPON THE NEGATIVE STATUTORY
OBLIGATIONS INCLUDED IN SEC. 2, SECOND AND NINTH.  THESE PARAGRAPHS AND
COMPLEMENTARY PARTS OF THE STATUTE NOT ONLY EXPRESS AN AFFIRMATIVE DUTY
TO TREAT WITH DULY DESIGNATED REPRESENTATIVES OF EMPLOYEES BUT ALSO
IMPLY A NEGATIVE DUTY NOT TO TREAT WITH ANY ONE ELSE AS TO RATES OF
PAY, RULES, OR WORKING CONDITIONS.  THUS THE NEGATIVE PART OF THE
DECREE MAY BE IN EXECUTION OF THESE PARAGRAPHS.  OR IT MAY BE IN
EXECUTION OF PARAGRAPHS THIRD AND FOURTH, WHICH ARE UNQUESTIONABLY
ENFORCEABLE.  TEXAS & N.O.R. CO. V. RAILWAY CLERKS, 281 U.S. 548. 

THE AFFIRMATIVE OBLIGATION DOES NOT DEPRIVE PETITIONER OF LIBERTY OR
PROPERTY IN VIOLATION OF THE FIFTH AMENDMENT; THE OBLIGATION IS MERELY
TO CONFER, NOT NECESSARILY TO CONTRACT.  MOREOVER, IF SUCH A
REQUIREMENT WERE DEEMED TO INTERFERE WITH PETITIONER'S PROPERTY OR
CONTRACT RIGHTS, IT WOULD BE REASONABLE AS A NECESSARY AND IMPORTANT
PART OF THE MACHINERY FOR THE PREVENTION OF RAILWAY LABOR DISPUTES. 
EVERY PORTION OF THE STATUTORY PLAN ULTIMATELY DEPENDS FOR ITS SUCCESS
ON THE WILLINGNESS OF CARRIERS TO CONFER WITH THE REPRESENTATIVES OF
THEIR EMPLOYEES. 

THE NEGATIVE OBLIGATION DOES NOT IN FACT DEPRIVE CARRIERS OF LIBERTY
OF CONTRACT, INASMUCH AS THE PRACTICE OF CARRIERS IS NOT TO CONTRACT
WITH INDIVIDUAL EMPLOYEES OR WITH MINORITIES.  IT WOULD BE EXTREMELY
IMPRACTICABLE FOR A CARRIER TO HAVE MINORITY GROUPS OF EMPLOYEES
WORKING UNDER DIFFERENT RULES THAN THE MAJORITY.  THE PRIVILEGE OF
CONTRACTING WITH MORE THAN ONE REPRESENTATIVE OF A SINGLE CLASS OF
EMPLOYEES IS PURELY THEORETICAL. 

IN ANY EVENT, THE PROHIBITION AGAINST CONTRACTS WITH MINORITY GROUPS
IS REASONABLE AND NECESSARY IF RAILWAY LABOR DISPUTES ARE TO BE
PREVENTED.  THE EFFECTIVENESS OF THE MACHINERY OF THE ACT IS POSITED
UPON AGREEMENT BETWEEN REPRESENTATIVES OF EMPLOYERS AND EMPLOYEES, AND
CANNOT BE ACHIEVED BY CONFLICTING CONFERENCES BETWEEN A CARRIER AND
NUMEROUS REPRESENTATIVES OF INDIVIDUAL EMPLOYEES OR MINORITY GROUPS
WORKING AT CROSS PURPOSES.  ANY ATTEMPT BY A CARRIER TO MAINTAIN TWO OR
MORE CONTRACTS APPLYING TO PERSONS DOING THE SAME WORK, WITH STANDARDS
NECESSARILY DISCRIMINATING AGAINST ONE GROUP OR ANOTHER, WOULD RESULT
IN DISCORD AND DISSATISFACTION AND MAKE LABOR DISPUTES INEVITABLE. 

THE RAILWAY LABOR ACT DOES NOT INVOLVE ANY DELEGATION OF LEGISLATIVE
POWER.  THE DOCTRINE OF CARTER V. CARTER COAL CO., 298 U.S. 238, IS
INAPPLICABLE. 

PETITIONER'S CLAIM THAT THE INJUNCTION BELOW VIOLATES SECS. 4(E), 6,
7(A), AND 9 OF THE NORRIS-LAGUARDIA ANTI-INJUNCTION ACT IS OBVIOUSLY
UNSUPPORTED BY THE LANGUAGE OF THE SECTIONS TO WHICH PETITIONER
REFERS.  MOREOVER, IF THERE WERE AN INCONSISTENCY, THE RAILWAY LABOR
ACT, WHICH WAS ENACTED AFTER THE NORRIS-LAGUARDIA ACT AND WHICH DEALS
WITH THE SPECIFIC PROBLEM AT BAR, WOULD PREVAIL. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS QUESTIONS AS TO THE CONSTITUTIONAL VALIDITY OF
CERTAIN PROVISIONS OF THE RAILWAY LABOR ACT OF MAY 20, 1926, C. 347, 44
STAT. 577, AS AMENDED BY THE ACT OF JUNE 21, 1934, C. 691, 48 STAT.
1185, 45 U.S.C. SECS. 151-163, AND AS TO THE NATURE AND EXTENT OF THE
RELIEF WHICH COURTS ARE AUTHORIZED BY THE ACT TO GIVE. 

RESPONDENTS ARE SYSTEM FEDERATION NO. 40, WHICH WILL BE REFERRED TO
AS THE FEDERATION, A LABOR ORGANIZATION AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR AND REPRESENTING SHOP CRAFT EMPLOYEES OF PETITIONER
RAILWAY, AND CERTAIN INDIVIDUALS WHO ARE OFFICERS AND MEMBERS OF THE
SYSTEM FEDERATION.  THEY BROUGHT THE PRESENT SUIT IN EQUITY IN THE
DISTRICT COURT FOR EASTERN VIRGINIA, TO COMPEL PETITIONER, AN
INTERSTATE RAIL CARRIER, TO RECOGNIZE AND TREAT WITH RESPONDENT
FEDERATION, AS THE DULY ACCREDITED REPRESENTATIVE OF THE MECHANICAL
DEPARTMENT EMPLOYEES OF PETITIONER, AND TO RESTRAIN PETITIONER FROM IN
ANY WAY INTERFERING WITH, INFLUENCING OR COERCING ITS SHOP CRAFT
EMPLOYEES IN THEIR FREE CHOICE OF REPRESENTATIVES, FOR THE PURPOSE OF
CONTRACTING WITH PETITIONER WITH RESPECT TO RULES, RATES OF PAY AND
WORKING CONDITIONS, AND FOR THE PURPOSE OF CONSIDERING AND SETTLING
DISPUTES BETWEEN PETITIONER AND SUCH EMPLOYEES. 

THE HISTORY OF THIS CONTROVERSY GOES BACK TO 1922, WHEN, FOLLOWING
THE FAILURE OF A STRIKE BY PETITIONER'S SHOP EMPLOYEES AFFILIATED WITH
THE AMERICAN FEDERATION OF LABOR, OTHER EMPLOYEES ORGANIZED A LOCAL
UNION KNOWN AS THE "MECHANICAL DEPARTMENT ASSOCIATION OF THE VIRGINIAN
RAILWAY."  THE ASSOCIATION THEREUPON ENTERED INTO AN AGREEMENT WITH
PETITIONER, PROVIDING FOR RATES OF PAY AND WORKING CONDITIONS, AND FOR
THE SETTLEMENT OF DISPUTES WITH RESPECT TO THEM, BUT NO SUBSTANTIAL
GRIEVANCES WERE EVER PRESENTED TO PETITIONER BY THE ASSOCIATION.  IT
MAINTAINED ITS ORGANIZATION AND HELD BIENNIAL ELECTIONS OF OFFICERS,
BUT THE NOTICES OF ELECTION WERE SENT OUT BY PETITIONER AND ALL
ASSOCIATION EXPENSES WERE PAID BY PETITIONER.    IN 1927 THE AMERICAN
FEDERATION OF LABOR FORMED A LOCAL ORGANIZATION, WHICH, IN 1934,
DEMANDED RECOGNITION BY PETITIONER OF ITS AUTHORITY TO REPRESENT THE
SHOP CRAFT EMPLOYEES, AND INVOKED THE AID OF THE NATIONAL MEDIATION
BOARD, CONSTITUTED UNDER THE RAILWAY LABOR ACT AS AMENDED, TO ESTABLISH
ITS AUTHORITY.  THE BOARD, PURSUANT TO AGREEMENT BETWEEN THE
PETITIONER, THE FEDERATION, AND THE ASSOCIATION, AND IN CONFORMITY TO
THE STATUTE, HELD AN ELECTION BY PETITIONER'S SHOP CRAFT EMPLOYEES, TO
CHOOSE REPRESENTATIVES FOR THE PURPOSE OF COLLECTIVE BARGAINING WITH
PETITIONER.  AS THE RESULT OF THE ELECTION, THE BOARD CERTIFIED THAT
THE FEDERATION WAS THE DULY ACCREDITED REPRESENTATIVE OF PETITIONER'S
EMPLOYEES IN THE SIX SHOP CRAFTS. 

UPON THIS AND OTHER EVIDENCE, NOT NOW NECESSARY TO BE DETAILED, THE
TRIAL COURT FOUND THAT THE FEDERATION WAS THE DULY AUTHORIZED
REPRESENTATIVE OF THE MECHANICAL DEPARTMENT EMPLOYEES OF PETITIONER,
EXCEPT THE CARMEN AND COACH CLEANERS; THAT THE PETITIONER, IN VIOLATION
OF SEC. 2 OF THE RAILWAY LABOR ACT, HAD FAILED TO TREAT WITH THE
FEDERATION AS THE DULY ACCREDITED REPRESENTATIVE OF PETITIONER'S
EMPLOYEES; THAT PETITIONER HAD SOUGHT TO INFLUENCE ITS EMPLOYEES
AGAINST ANY AFFILIATION WITH LABOR ORGANIZATIONS OTHER THAN AN
ASSOCIATION MAINTAINED BY PETITIONER, AND TO PREVENT ITS EMPLOYEES FROM
EXERCISING THEIR RIGHT TO CHOOSE THEIR OWN REPRESENTATIVE; THAT FOR
THAT PURPOSE, FOLLOWING THE CERTIFICATION BY THE NATIONAL MEDIATION
BOARD, OF THE FEDERATION, AS THE DULY AUTHORIZED REPRESENTATIVE OF
PETITIONER'S MECHANICAL DEPARTMENT EMPLOYEES, PETITIONER HAD ORGANIZED
THE INDEPENDENT SHOP CRAFT ASSOCIATION OF ITS SHOP CRAFT EMPLOYEES, AND
HAD SOUGHT TO INDUCE ITS EMPLOYEES TO JOIN THE INDEPENDENT ASSOCIATION,
AND TO PUT IT FORWARD AS THE AUTHORIZED REPRESENTATIVE OF PETITIONER'S
EMPLOYEES.  FN1 

UPON THE BASIS OF THESE FINDINGS THE TRIAL COURT GAVE ITS DECREE
APPLICABLE TO PETITIONER'S MECHANICAL DEPARTMENT EMPLOYEES EXCEPT THE
CARMEN AND COACH CLEANERS.  IT DIRECTED PETITIONER TO "TREAT WITH" THE
FEDERATION AND TO "EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN
AGREEMENTS CONCERNING RATES OF PAY, RULES AND WORKING CONDITIONS, AND
TO SETTLE ALL DISPUTES, WHETHER ARISING OUT OF THE APPLICATION OF SUCH
AGREEMENTS OR OTHERWISE,  ..."  IT RESTRAINED PETITIONER FROM "ENTERING
INTO ANY CONTRACT, UNDERTAKING OR AGREEMENT OF WHATSOEVER KIND
CONCERNING RULES, RATES OF PAY OR WORKING CONDITIONS AFFECTING ITS
MECHANICAL DEPARTMENT EMPLOYEES,  ...  EXCEPT  ... WITH THE
FEDERATION," AND FROM "INTERFERING WITH, INFLUENCING OR COERCING" ITS
EMPLOYEES WITH RESPECT TO THEIR FREE CHOICE OF REPRESENTATIVES "FOR THE
PURPOSE OF MAKING AND MAINTAINING CONTRACTS" WITH PETITIONER "RELATING
TO RULES, RATES OF PAY, AND WORKING CONDITIONS OR FOR THE PURPOSE OF
CONSIDERING AND DECIDING DISPUTES BETWEEN THE MECHANICAL DEPARTMENT
EMPLOYEES" AND PETITIONER.  THE DECREE FURTHER RESTRAINED THE
PETITIONER FROM ORGANIZING OR FOSTERING ANY UNION OF ITS MECHANICAL
DEPARTMENT EMPLOYEES FOR THE PURPOSE OF INTERFERING WITH THE FEDERATION
AS THE ACCREDITED REPRESENTATIVE OF SUCH EMPLOYEES.  11 F.SUPP.  621. 

ON APPEAL THE COURT OF APPEALS FOR THE FOURTH CIRCUIT APPROVED AND
ADOPTED THE FINDINGS OF THE DISTRICT COURT AND AFFIRMED ITS DECREE.  84
F.(2D) 641.  THIS COURT GRANTED CERTIORARI TO REVIEW THE CAUSE AS ONE
OF PUBLIC IMPORTANCE. 

PETITIONER HERE, AS BELOW, MAKES TWO MAIN CONTENTIONS:  FIRST, WITH
RESPECT TO THE RELIEF GRANTED, IT MAINTAINS THAT SEC. 2, NINTH, OF THE
RAILWAY LABOR ACT, WHICH PROVIDES THAT A CARRIER SHALL TREAT WITH THOSE
CERTIFIED BY THE MEDIATION BOARD TO BE THE REPRESENTATIVES OF A CRAFT
OR CLASS, IMPOSES NO LEGALLY ENFORCIBLE OBLIGATION UPON THE CARRIER TO
NEGOTIATE WITH THE REPRESENTATIVE SO CERTIFIED, AND THAT IN ANY CASE
THE STATUTE IMPOSES NO OBLIGATION TO TREAT OR NEGOTIATE WHICH CAN BE
APPROPRIATELY ENFORCED BY A COURT OF EQUITY.  SECOND, THAT SEC. 2,
NINTH, IN SO FAR AS IT ATTEMPTS TO REGULATE LABOR RELATIONS BETWEEN
PETITIONER AND ITS "BACK SHOP" EMPLOYEES, IS NOT A REGULATION OF
INTERSTATE COMMERCE AUTHORIZED BY THE COMMERCE CLAUSE BECAUSE, AS IT
ASSERTS, THEY ARE ENGAGED SOLELY IN INTRASTATE ACTIVITIES; AND THAT SO
FAR AS IT IMPOSES ON THE CARRIER ANY OBLIGATION TO NEGOTIATE WITH A
LABOR UNION AUTHORIZED TO REPRESENT ITS EMPLOYEES, AND RESTRAINS IT
FROM MAKING AGREEMENTS WITH ANY OTHER LABOR ORGANIZATION, IT IS A
DENIAL OF DUE PROCESS GUARANTEED BY THE FIFTH AMENDMENT.  OTHER MINOR
OBJECTIONS TO THE DECREE, SO FAR AS RELEVANT TO OUR DECISION, WILL BE
REFERRED TO LATER IN THE COURSE OF THIS OPINION. 

THE CONCURRENT FINDINGS OF FACT OF THE TWO COURTS BELOW ARE NOT SHOWN
TO BE PLAINLY ERRONEOUS OR UNSUPPORTED BY EVIDENCE.  WE ACCORDINGLY
ACCEPT THEM AS THE CONCLUSIVE BASIS FOR DECISION, TEXAS & N.O.R. CO. V.
BROTHERHOOD OF RAILWAY & S. S. CLERKS, 281 U.S. 548, 558; PICK MFG. CO.
V. GENERAL MOTORS CORP., 299 U.S. 3, 4, AND ADDRESS OURSELVES TO THE
QUESTIONS OF LAW RAISED ON THE RECORD. 

FIRST.  THE OBLIGATION IMPOSED BY THE STATUTE.  BY TITLE III OF THE
TRANSPORTATION ACT OF FEBRUARY 28, 1920, C. 91, 41 STAT. 456, 469,
CONGRESS SET UP THE RAILROAD LABOR BOARD AS A MEANS FOR THE PEACEFUL
SETTLEMENT, BY AGREEMENT OR BY ARBITRATION, OF LABOR CONTROVERSIES
BETWEEN INTERSTATE CARRIERS AND THEIR EMPLOYEES.  IT SOUGHT "TO
ENCOURAGE SETTLEMENT WITHOUT STRIKES, FIRST BY CONFERENCE BETWEEN THE
PARTIES; FAILING THAT, BY REFERENCE TO ADJUSTMENT BOARDS OF THE
PARTIES' OWN CHOOSING, AND IF THIS IS INEFFECTIVE, BY A FULL HEARING
BEFORE A NATIONAL BOARD  ..."  PENNSYLVANIA R. CO. V. RAILROAD LABOR
BOARD, 261 U.S. 72, 79.  THE DECISIONS OF THE BOARD WERE SUPPORTED BY
NO LEGAL SANCTIONS.  THE DISPUTANTS WERE NOT "IN ANY WAY TO BE FORCED
INTO COMPLIANCE WITH THE STATUTE OR WITH THE JUDGMENTS PRONOUNCED BY
THE LABOR BOARD, EXCEPT THROUGH THE EFFECT OF ADVERSE PUBLIC OPINION." 
PENNSYLVANIA FEDERATION V. PENNSYLVANIA R. CO., 267 U.S. 203, 216. 

IN 1926 CONGRESS, AWARE OF THE IMPOTENCE OF THE BOARD, AND OF THE
FACT THAT ITS AUTHORITY WAS GENERALLY NOT RECOGNIZED OR RESPECTED BY
THE RAILROADS OR THEIR EMPLOYEES, MADE A FRESH START TOWARD THE
PEACEFUL SETTLEMENT OF LABOR DISPUTES AFFECTING RAILROADS, BY THE
REPEAL OF THE 1920 ACT AND THE ADOPTION OF THE RAILWAY LABOR ACT. 
REPORT, SENATE COMMITTEE ON INTERSTATE COMMERCE, NO. 222, 69TH CONG.,
1ST SESS.  TEXAS & N.O.R. CO. V. BROTHERHOOD OF RAILWAY & S. S. CLERKS,
SUPRA, 563.  BY THE NEW MEASURE CONGRESS CONTINUED ITS POLICY OF
ENCOURAGING THE AMICABLE ADJUSTMENT OF LABOR DISPUTES BY THEIR
VOLUNTARY SUBMISSION TO ARBITRATION BEFORE AN IMPARTIAL BOARD, BUT IT
SUPPORTED THAT POLICY BY THE IMPOSITION OF LEGAL OBLIGATIONS.  IT
PROVIDED MEANS FOR ENFORCING THE AWARD OBTAINED BY ARBITRATION BETWEEN
THE PARTIES TO LABOR DISPUTES.  SEC. 9.  IN CERTAIN CIRCUMSTANCES IT
PROHIBITED ANY CHANGE IN CONDITIONS, BY THE PARTIES TO AN UNADJUSTED
LABOR DISPUTE, FOR A PERIOD OF THIRTY DAYS, EXCEPT BY AGREEMENT.  SEC.
10.  IT RECOGNIZED THEIR RIGHT TO DESIGNATE REPRESENTATIVES FOR THE
PURPOSES OF THE ACT "WITHOUT INTERFERENCE, INFLUENCE OR COERCION
EXERCISED BY EITHER PARTY OVER THE SELF-ORGANIZATION OR DESIGNATION OF
REPRESENTATIVES BY THE OTHER."  SEC. 2, THIRD.  UNDER THE LAST
MENTIONED PROVISION THIS COURT HELD, IN THE RAILWAY CLERKS CASE, SUPRA,
THAT EMPLOYEES WERE FREE TO ORGANIZE AND TO MAKE CHOICE OF THEIR
REPRESENTATIVES WITHOUT THE "COERCIVE INTERFERENCE" AND "PRESSURE" OF A
COMPANY UNION ORGANIZED AND MAINTAINED BY THE EMPLOYER; AND THAT THE
STATUTE PROTECTED THE FREEDOM OF CHOICE OF REPRESENTATIVES, WHICH WAS
AN ESSENTIAL OF THE STATUTORY SCHEME, WITH A LEGAL SANCTION WHICH IT
WAS THE DUTY OF COURTS TO ENFORCE BY APPROPRIATE DECREE. 

THE PROHIBITION AGAINST SUCH INTERFERENCE WAS CONTINUED AND MADE MORE
EXPLICIT BY THE AMENDMENT OF 1934.  FN2  PETITIONER DOES NOT CHALLENGE
THAT PART OF THE DECREE WHICH ENJOINS ANY INTERFERENCE BY IT WITH THE
FREE CHOICE OF REPRESENTATIVES BY ITS EMPLOYEES, AND THE FOSTERING, IN
THE CIRCUMSTANCES OF THIS CASE, OF THE COMPANY UNION.  THAT CONTENTION
IS NOT OPEN TO IT IN VIEW OF OUR DECISION IN THE RAILWAY CLERKS CASE,
SUPRA, AND OF THE UNAMBIGUOUS LANGUAGE OF SEC. 2, THIRD, AND FOURTH, OF
THE ACT, AS AMENDED. 

BUT PETITIONER INSISTS THAT THE STATUTE AFFORDS NO LEGAL SANCTION FOR
SO MUCH OF THE DECREE AS DIRECTS PETITIONER TO "TREAT WITH" RESPONDENT
FEDERATION "AND EXERT EVERY REASONABLE EFFORT TO MAKE AND MAINTAIN
AGREEMENTS CONCERNING RATES OF PAY, RULES AND WORKING CONDITIONS, AND
TO SETTLE ALL DISPUTES WHETHER ARISING OUT OF THE APPLICATION OF SUCH
AGREEMENTS OR OTHERWISE."  IT POINTS OUT THAT THE REQUIREMENT FOR
REASONABLE EFFORT TO REACH AN AGREEMENT IS COUCHED IN THE VERY WORDS OF
SEC. 2, FIRST, WHICH WERE TAKEN FROM SEC. 301 OF THE TRANSPORTATION
ACT, AND WHICH WERE HELD TO BE WITHOUT LEGAL SANCTION IN THAT ACT. 
PENNSYLVANIA FEDERATION V. PENNSYLVANIA R. CO., SUPRA, 215.  IT IS
ARGUED THAT THEY CANNOT NOW BE GIVEN GREATER FORCE AS REENACTED IN THE
RAILWAY LABOR ACT OF 1926, AND CONTINUED IN THE 1934 AMENDMENT.  BUT
THESE WORDS NO LONGER STAND ALONE AND UNAIDED BY MANDATORY PROVISION OF
THE STATUTE AS THEY DID WHEN FIRST ENACTED.  THE AMENDMENT OF THE
RAILWAY LABOR ACT ADDED NEW PROVISIONS IN SEC. 2, NINTH, WHICH MAKES IT
THE DUTY OF THE MEDIATION BOARD, WHEN ANY DISPUTE ARISES AMONG THE
CARRIER'S EMPLOYEES, "AS TO WHO ARE THE REPRESENTATIVES OF SUCH
EMPLOYEES," TO INVESTIGATE THE DISPUTE AND TO CERTIFY, AS WAS DONE IN
THIS CASE, THE NAME OF THE ORGANIZATION AUTHORIZED TO REPRESENT THE
EMPLOYEES.  IT COMMANDS THAT "UPON RECEIPT OF SUCH CERTIFICATION THE
CARRIER SHALL TREAT WITH THE REPRESENTATIVE SO CERTIFIED AS THE
REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES OF THIS ACT." 

IT IS, WE THINK, NOT OPEN TO DOUBT THAT CONGRESS INTENDED THAT THIS
REQUIREMENT BE MANDATORY UPON THE RAILROAD EMPLOYER, AND THAT ITS
COMMAND, IN A PROPER CASE, BE ENFORCED BY THE COURTS.  THE POLICY OF
THE TRANSPORTATION ACT OF ENCOURAGING VOLUNTARY ADJUSTMENT OF LABOR
DISPUTES, MADE MANIFEST BY THOSE PROVISIONS OF THE ACT WHICH CLEARLY
CONTEMPLATED THE MORAL FORCE OF PUBLIC OPINION AS AFFORDING ITS
ULTIMATE SANCTION, WAS, AS WE HAVE SEEN, ABANDONED BY THE ENACTMENT OF
THE RAILWAY LABOR ACT.  NEITHER THE PURPOSES OF THE LATER ACT, AS
AMENDED, NOR ITS PROVISIONS WHEN READ, AS THEY MUST BE, IN THE LIGHT OF
OUR DECISION IN THE RAILWAY CLERKS CASE, SUPRA, LEND SUPPORT TO THE
CONTENTION THAT ITS ENACTMENTS, WHICH ARE MANDATORY IN FORM AND CAPABLE
OF ENFORCEMENT BY JUDICIAL PROCESS, WERE INTENDED TO BE WITHOUT LEGAL
SANCTION.  FN3 

EXPERIENCE HAD SHOWN, BEFORE THE AMENDMENT OF 1934, THAT WHEN THERE
WAS NO DISPUTE AS TO THE ORGANIZATIONS AUTHORIZED TO REPRESENT THE
EMPLOYEES, AND WHEN THERE WAS WILLINGNESS OF THE EMPLOYER TO MEET SUCH
REPRESENTATIVE FOR A DISCUSSION OF THEIR GRIEVANCES, AMICABLE
ADJUSTMENT OF DIFFERENCES HAD GENERALLY FOLLOWED AND STRIKES HAD BEEN
AVOIDED.  FN4  ON THE OTHER HAND, A PROLIFIC SOURCE OF DISPUTE HAD BEEN
THE MAINTENANCE BY THE RAILROADS OF COMPANY UNIONS AND THE DENIAL BY
RAILWAY MANAGEMENT OF THE AUTHORITY OF REPRESENTATIVES CHOSEN BY THEIR
EMPLOYEES.  REPORT OF HOUSE COMMITTEE ON INTERSTATE AND FOREIGN
COMMERCE, NO. 1944, 73RD CONG., 2D SESS., PP. 1-2.  FN5  SECTION 2,
NINTH, OF THE AMENDED ACT, WAS SPECIFICALLY AIMED AT THIS PRACTICE.  IT
PROVIDED A MEANS FOR ASCERTAINING WHO ARE THE AUTHORIZED
REPRESENTATIVES OF THE EMPLOYEES THROUGH INTERVENTION AND CERTIFICATION
BY THE MEDIATION BOARD, AND COMMANDED THE CARRIER TO TREAT WITH THE
REPRESENTATIVE SO CERTIFIED.  THAT THE COMMAND WAS LIMITED IN ITS
APPLICATION TO THE CASE OF INTERVENTION AND CERTIFICATION BY THE
MEDIATION BOARD INDICATES NOT THAT ITS WORDS ARE PRECATORY, BUT ONLY
THAT CONGRESS HIT AT THE EVIL "WHERE EXPERIENCE SHOWS IT TO BE MOST
FELT."  KEOKEE COKE CO. V. TAYLOR, 234 U.S. 224, 227. 

PETITIONER ARGUES THAT THE PHRASE "TREAT WITH" MUST BE TAKEN AS
MEANING "REGARD" OR "ACT TOWARDS," SO THAT COMPLIANCE WITH ITS MANDATE
REQUIRES THE EMPLOYER TO MEET THE AUTHORIZED REPRESENTATIVE OF THE
EMPLOYEES ONLY IF AND WHEN HE SHALL ELECT TO NEGOTIATE WITH THEM.  THIS
SUGGESTION DISREGARDS THE WORDS OF THE SECTION, AND IGNORES THE PLAIN
PURPOSE MADE MANIFEST THROUGHOUT THE NUMEROUS PROVISIONS OF THE ACT. 
ITS MAJOR OBJECTIVE IS THE AVOIDANCE OF INDUSTRIAL STRIFE, BY
CONFERENCE BETWEEN THE AUTHORIZED REPRESENTATIVES OF EMPLOYER AND
EMPLOYEE.  THE COMMAND TO THE EMPLOYER TO "TREAT WITH" THE AUTHORIZED
REPRESENTATIVE OF THE EMPLOYEES ADDS NOTHING TO THE 1926 ACT, UNLESS IT
REQUIRES SOME AFFIRMATIVE ACT ON THE PART OF THE EMPLOYER.  COMPARE THE
RAILWAY CLERKS CASE, SUPRA.  AS WE CANNOT ASSUME THAT ITS ADDITION TO
THE STATUTE WAS PURPOSELESS, WE MUST TAKE ITS MEANING TO BE THAT WHICH
THE WORDS SUGGEST, WHICH ALONE WOULD ADD SOMETHING TO THE STATUTE AS IT
WAS BEFORE AMENDMENT, AND WHICH ALONE WOULD TEND TO EFFECT THE PURPOSE
OF THE LEGISLATION.  THE STATUTE DOES NOT UNDERTAKE TO COMPEL AGREEMENT
BETWEEN THE EMPLOYER AND EMPLOYEES, BUT IT DOES COMMAND THOSE
PRELIMINARY STEPS WITHOUT WHICH NO AGREEMENT CAN BE REACHED.  IT AT
LEAST REQUIRES THE EMPLOYER TO MEET AND CONFER WITH THE AUTHORIZED
REPRESENTATIVE OF ITS EMPLOYEES, TO LISTEN TO THEIR COMPLAINTS, TO MAKE
REASONABLE EFFORT TO COMPOSE DIFFERENCES - IN SHORT, TO ENTER INTO A
NEGOTIATION FOR THE SETTLEMENT OF LABOR DISPUTES SUCH AS IS
CONTEMPLATED BY SEC. 2, FIRST. 

PETITIONER'S INSISTENCE THAT THE STATUTE DOES NOT WARRANT SO MUCH OF
THE DECREE AS FORBIDS IT TO ENTER INTO CONTRACTS OF EMPLOYMENT WITH ITS
INDIVIDUAL EMPLOYEES IS BASED UPON A MISCONSTRUCTION OF THE DECREE. 
BOTH THE STATUTE AND THE DECREE ARE AIMED AT SECURING SETTLEMENT OF
LABOR DISPUTES BY INDUCING COLLECTIVE BARGAINING WITH THE TRUE
REPRESENTATIVE OF THE EMPLOYEES AND BY PREVENTING SUCH BARGAINING WITH
ANY WHO DO NOT REPRESENT THEM.  THE OBLIGATION IMPOSED ON THE EMPLOYER
BY SEC. 2, NINTH, TO TREAT WITH THE TRUE REPRESENTATIVE OF THE
EMPLOYEES AS DESIGNATED BY THE MEDIATION BOARD, WHEN READ IN THE LIGHT
OF THE DECLARED PURPOSES OF THE ACT, AND OF THE PROVISIONS OF SEC. 2,
THIRD AND FOURTH, GIVING TO THE EMPLOYEES THE RIGHT TO ORGANIZE AND
BARGAIN COLLECTIVELY THROUGH THE REPRESENTATIVE OF THEIR OWN SELECTION,
IS EXCLUSIVE.  IT IMPOSES THE AFFIRMATIVE DUTY TO TREAT ONLY WITH THE
TRUE REPRESENTATIVE, AND HENCE THE NEGATIVE DUTY TO TREAT WITH NO
OTHER.  WE THINK, AS THE GOVERNMENT CONCEDES IN ITS BRIEF,  FN6  THAT
THE INJUNCTION AGAINST PETITIONER'S ENTERING INTO ANY CONTRACT
CONCERNING RULES, RATES OF PAY AND WORKING CONDITIONS, EXCEPT WITH
RESPONDENT, IS DESIGNED ONLY TO PREVENT COLLECTIVE BARGAINING WITH
ANYONE PURPORTING TO REPRESENT EMPLOYEES, OTHER THAN RESPONDENT, WHO
HAS BEEN ASCERTAINED TO BE THEIR TRUE REPRESENTATIVE.  WHEN READ IN ITS
CONTEXT IT MUST BE TAKEN TO PROHIBIT THE NEGOTIATION OF LABOR
CONTRACTS, GENERALLY APPLICABLE TO EMPLOYEES IN THE MECHANICAL
DEPARTMENT, WITH ANY REPRESENTATIVE OTHER THAN RESPONDENT, BUT NOT AS
PRECLUDING SUCH INDIVIDUAL CONTRACTS AS PETITIONER MAY ELECT TO MAKE
DIRECTLY WITH INDIVIDUAL EMPLOYEES.  THE DECREE, THUS CONSTRUED,
CONFORMS, IN BOTH ITS AFFIRMATIVE AND NEGATIVE ASPECTS, TO THE
REQUIREMENTS OF SEC. 2. 

PROPRIETY OF RELIEF IN EQUITY.  PETITIONER CONTENDS THAT IF THE
STATUTE IS INTERPRETED AS REQUIRING THE EMPLOYER TO NEGOTIATE WITH THE
REPRESENTATIVE OF HIS EMPLOYEES, ITS OBLIGATION IS NOT THE APPROPRIATE
SUBJECT OF A DECREE IN EQUITY; THAT NEGOTIATION DEPENDS ON DESIRES AND
MENTAL ATTITUDES WHICH ARE BEYOND JUDICIAL CONTROL, AND THAT SINCE
EQUITY CANNOT COMPEL THE PARTIES TO AGREE, IT WILL NOT COMPEL THEM TO
TAKE THE PRELIMINARY STEPS WHICH MAY RESULT IN AGREEMENT. 

THERE IS NO WANT OF CAPACITY IN THE COURT TO DIRECT COMPLETE
PERFORMANCE OF THE ENTIRE OBLIGATION:  BOTH THE NEGATIVE DUTIES NOT TO
MAINTAIN A COMPANY UNION AND NOT TO NEGOTIATE WITH ANY REPRESENTATIVE
OF THE EMPLOYEES OTHER THAN RESPONDENT AND THE AFFIRMATIVE DUTY TO
TREAT WITH RESPONDENT.  FULL PERFORMANCE OF BOTH IS COMMANDED BY THE
DECREE IN TERMS WHICH LEAVE IN NO UNCERTAINTY THE REQUISITES OF
PERFORMANCE.  IN COMPELLING COMPLIANCE WITH EITHER DUTY IT DOES FAR
LESS THAN HAS BEEN DONE IN COMPELLING THE DISCHARGE OF A CONTRACTUAL OR
STATUTORY OBLIGATION CALLING FOR A CONSTRUCTION OR ENGINEERING
ENTERPRISE, NEW ORLEANS, M. & T. RY. CO. V. MISSISSIPPI, 112 U.S. 12;
WHEELING TRACTION CO. V. BOARD OF COMMISSIONERS, 248 FED. 205; SEE GAS
SECURITIES CO. V. ANTERO & LOST PARK RESERVOIR CO., 259 FED. 423, 433;
BOARD OF COMMISSIONERS V. A.V. WILLS & SONS, 236 FED. 362, 380; JONES
V. PARKER, 163 MASS. 564; 40 N.E. 1044, OR IN GRANTING SPECIFIC
PERFORMANCE OF A CONTRACT FOR THE JOINT USE OF A RAILROAD BRIDGE AND
TERMINALS, JOY V. ST. LOUIS, 138 U.S. 1; UNION PACIFIC RY. CO. V.
CHICAGO, R. I. & P. RY. CO., 163 U.S. 564; CF. PROSPECT PARK & CONEY
ISLAND R. CO. V. CONEY ISLAND & BROOKLYN R. CO., 144 N.Y. 152; 39 N.E.
17.  WHETHER AN OBLIGATION HAS BEEN DISCHARGED, AND WHETHER ACTION
TAKEN OR OMITTED IS IN GOOD FAITH OR REASONABLE, ARE EVERYDAY SUBJECTS
OF INQUIRY BY COURTS IN FRAMING AND ENFORCING THEIR DECREES. 

IT IS TRUE THAT A COURT OF EQUITY MAY REFUSE TO GIVE ANY RELIEF WHEN
IT IS APPARENT THAT THAT WHICH IT CAN GIVE WILL NOT BE EFFECTIVE OR OF
BENEFIT TO THE PLAINTIFF.  EQUITY WILL NOT DECREE THE EXECUTION OF A
PARTNERSHIP AGREEMENT SINCE IT CANNOT COMPEL THE PARTIES TO REMAIN
PARTNERS, SEE HYER V. RICHMOND TRACTION CO., 168 U.S. 471, 482, OR
COMPEL ONE TO ENTER INTO PERFORMANCE OF A CONTRACT OF PERSONAL SERVICE
WHICH IT CANNOT ADEQUATELY CONTROL, MARBLE COMPANY V. RIPLEY, 10 WALL. 
339, 358; KARRICK V. HANNAMAN, 168 U.S. 328, 336; TOBEY V. BRISTOL,
FED. CAS. NO. 14,065; WEEKS V. PRATT, 43 F.(2D) 53, 57; RAILWAY LABOR
ACT, SEC. 2, TENTH.  BUT THE EXTENT TO WHICH EQUITY WILL GO TO GIVE
RELIEF WHERE THERE IS NO ADEQUATE REMEDY AT LAW IS NOT A MATTER OF
FIXED RULE.  IT RESTS RATHER IN THE SOUND DISCRETION OF THE COURT. 
WILLARD V. TAYLOE, 8 WALL.  557, 565; JOY V. ST. LOUIS, SUPRA, 47;
MORRISON V. WORK, 266 U.S. 481, 490; CURRAN V. HOLYOKE WATER POWER CO.,
116 MASS. 90, 92.  WHETHER THE DECREE WILL PROVE SO USELESS AS TO LEAD
A COURT TO REFUSE TO GIVE IT, IS A MATTER OF JUDGMENT TO BE EXERCISED
WITH REFERENCE TO THE SPECIAL CIRCUMSTANCES OF EACH CASE RATHER THAN TO
GENERAL RULES WHICH AT MOST ARE BUT GUIDES TO THE EXERCISE OF
DISCRETION.  IT IS A FAMILIAR RULE THAT A COURT MAY EXERCISE ITS EQUITY
POWERS, OR EQUIVALENT MANDAMUS POWERS, UNITED STATES EX REL. GREATHOUSE
V. DERN, 289 U.S. 352, 359, TO COMPEL COURTS, BOARDS, OR OFFICERS TO
ACT IN A MATTER WITH RESPECT TO WHICH THEY MAY HAVE JURISDICTION OR
AUTHORITY, ALTHOUGH THE COURT WILL NOT ASSUME TO CONTROL OR GUIDE THE
EXERCISE OF THEIR AUTHORITY.  INTERSTATE COMMERCE COMM'N V. HUMBOLDT
S.S. CO., 224 U.S. 474; LOUISVILLE CEMENT CO. V. INTERSTATE COMMERCE
COMM'N, 246 U.S. 638; SEE WORK V. UNITED STATES EX REL. RIVES, 267 U.S.
175, 184; WILBUR V. UNITED STATES EX REL. KADRIE, 281 U.S. 206, 218. 

IN CONSIDERING THE PROPRIETY OF THE EQUITABLE RELIEF GRANTED HERE, WE
CANNOT IGNORE THE JUDGMENT OF CONGRESS, DELIBERATELY EXPRESSED IN
LEGISLATION, THAT WHERE THE OBSTRUCTION OF THE COMPANY UNION IS
REMOVED, THE MEETING OF EMPLOYERS AND EMPLOYEES AT THE CONFERENCE TABLE
IS A POWERFUL AID TO INDUSTRIAL PEACE.  MOREOVER, THE RESOURCES OF THE
RAILWAY LABOR ACT ARE NOT EXHAUSTED IF NEGOTIATION FAILS IN THE FIRST
INSTANCE TO RESULT IN AGREEMENT.  IF DISPUTES CONCERNING CHANGES IN
RATES OF PAY, RULES OR WORKING CONDITIONS, ARE "NOT ADJUSTED BY THE
PARTIES IN CONFERENCE," EITHER PARTY MAY INVOKE THE MEDIATION SERVICES
OF THE MEDIATION BOARD, SEC. 5, FIRST, OR THE PARTIES MAY AGREE TO SEEK
THE BENEFITS OF THE ARBITRATION PROVISION OF SEC. 7.  WITH THE COERCIVE
INFLUENCE OF THE COMPANY UNION ENDED, AND IN VIEW OF THE INTEREST OF
BOTH PARTIES IN AVOIDING A STRIKE, WE CANNOT ASSUME THAT NEGOTIATION,
AS REQUIRED BY THE DECREE, WILL NOT RESULT IN AGREEMENT, OR LEAD TO
SUCCESSFUL MEDIATION OR ARBITRATION, OR THAT THE ATTEMPT TO SECURE ONE
OR ANOTHER THROUGH THE RELIEF WHICH THE DISTRICT COURT GAVE IS NOT
WORTH THE EFFORT. 

MORE IS INVOLVED THAN THE SETTLEMENT OF A PRIVATE CONTROVERSY WITHOUT
APPRECIABLE CONSEQUENCES TO THE PUBLIC.  THE PEACEABLE SETTLEMENT OF
LABOR CONTROVERSIES, ESPECIALLY WHERE THEY MAY SERIOUSLY IMPAIR THE
ABILITY OF AN INTERSTATE RAIL CARRIER TO PERFORM ITS SERVICE TO THE
PUBLIC, IS A MATTER OF PUBLIC CONCERN.  THAT IS TESTIFIED TO BY THE
HISTORY OF THE LEGISLATION NOW BEFORE US, THE REPORTS OF COMMITTEES OF
CONGRESS HAVING THE PROPOSED LEGISLATION IN CHARGE, AND BY OUR COMMON
KNOWLEDGE.  COURTS OF EQUITY MAY, AND FREQUENTLY DO, GO MUCH FARTHER
BOTH TO GIVE AND WITHHOLD RELIEF IN FURTHERANCE OF THE PUBLIC INTEREST
THAN THEY ARE ACCUSTOMED TO GO WHEN ONLY PRIVATE INTERESTS ARE
INVOLVED.  PENNSYLVANIA V. WILLIAMS, 294 U.S. 176, 185; CENTRAL
KENTUCKY GAS CO. V. RAILROAD COMMISSION, 290 U.S. 264, 270-273;
HARRISONVILLE V. W.S. DICKEY CLAY CO., 289 U.S. 334, 338; BEASLEY V.
TEXAS & PACIFIC RY. CO., 191 U.S. 492, 497; JOY V. ST. LOUIS, SUPRA,
47; TEXAS & PACIFIC RY. CO. V. MARSHALL, 136 U.S. 393, 405-406; CONGER
V. NEW YORK, W.S. & B.R. CO., 120 N.Y. 29, 32, 33; 23 N.E. 983.  THE
FACT THAT CONGRESS HAS INDICATED ITS PURPOSE TO MAKE NEGOTIATION
OBLIGATORY IS IN ITSELF A DECLARATION OF PUBLIC INTEREST AND POLICY
WHICH SHOULD BE PERSUASIVE IN INDUCING COURTS TO GIVE RELIEF.  IT IS
FOR SIMILAR REASONS THAT COURTS, WHICH TRADITIONALLY HAVE REFUSED TO
COMPEL PERFORMANCE OF A CONTRACT TO SUBMIT TO ARBITRATION, TOBEY V.
BRISTOL, SUPRA, ENFORCE STATUTES COMMANDING PERFORMANCE OF ARBITRATION
AGREEMENTS.  RED CROSS LINE V. ATLANTIC FRUIT CO., 264 U.S. 109, 119,
121; MARINE TRANSIT CORP. V. DREYFUS, 284 U.S. 263, 278. 

THE DECREE IS AUTHORIZED BY THE STATUTE AND WAS GRANTED IN AN
APPROPRIATE EXERCISE OF THE EQUITY POWERS OF THE COURT. 

SECOND.  CONSTITUTIONALITY OF SEC. 2 OF THE RAILWAY LABOR ACT.  (A)
VALIDITY UNDER THE COMMERCE CLAUSE.  THE POWER OF CONGRESS OVER
INTERSTATE COMMERCE EXTENDS TO SUCH REGULATIONS OF THE RELATIONS OF
RAIL CARRIERS TO THEIR EMPLOYEES AS ARE REASONABLY CALCULATED TO
PREVENT THE INTERRUPTION OF INTERSTATE COMMERCE BY STRIKES AND THEIR
ATTENDANT DISORDERS.  WILSON V. NEW, 243 U.S. 332, 347-348.  THE
RAILWAY LABOR ACT, SEC. 2, DECLARES THAT ITS PURPOSES, AMONG OTHERS,
ARE "TO AVOID ANY INTERRUPTION TO COMMERCE OR TO THE OPERATION OF ANY
CARRIER ENGAGED THEREIN," AND "TO PROVIDE FOR THE PROMPT AND ORDERLY
SETTLEMENT OF ALL DISPUTES CONCERNING RATES OF PAY, RULES OR WORKING
CONDITIONS."  THE PROVISIONS OF THE ACT AND ITS HISTORY, TO WHICH
REFERENCE HAS BEEN MADE, ESTABLISH THAT SUCH ARE ITS PURPOSES, AND THAT
THE LATTER IS IN AID OF THE FORMER.  WHAT HAS BEEN SAID INDICATES
CLEARLY THAT ITS PROVISIONS ARE AIMED AT THE SETTLEMENT OF INDUSTRIAL
DISPUTES BY THE PROMOTION OF COLLECTIVE BARGAINING BETWEEN EMPLOYERS
AND THE AUTHORIZED REPRESENTATIVE OF THEIR EMPLOYEES, AND BY MEDIATION
AND ARBITRATION WHEN SUCH BARGAINING DOES NOT RESULT IN AGREEMENT.  IT
WAS FOR CONGRESS TO MAKE THE CHOICE OF THE MEANS BY WHICH ITS OBJECTIVE
OF SECURING THE UNINTERRUPTED SERVICE OF INTERSTATE RAILROADS WAS TO BE
SECURED, AND ITS JUDGMENT, SUPPORTED AS IT IS BY OUR LONG EXPERIENCE
WITH INDUSTRIAL DISPUTES, AND THE HISTORY OF RAILROAD LABOR RELATIONS,
TO WHICH WE HAVE REFERRED, IS NOT OPEN TO REVIEW HERE.  FN7  THE MEANS
CHOSEN ARE APPROPRIATE TO THE END SOUGHT AND HENCE ARE WITHIN THE
CONGRESSIONAL POWER.  SEE RAILWAY CLERKS CASE, SUPRA, 570; RAILROAD
RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330, 369. 

BUT PETITIONER INSISTS THAT THE ACT AS APPLIED TO ITS "BACK SHOP"
EMPLOYEES IS NOT WITHIN THE COMMERCE POWER SINCE THEIR DUTIES HAVE NO
DIRECT RELATIONSHIP TO INTERSTATE TRANSPORTATION.  OF THE 824 EMPLOYEES
IN THE SIX SHOP CRAFTS ELIGIBLE TO VOTE FOR A CHOICE OF
REPRESENTATIVES, 322 WORK IN PETITIONER'S "BACK SHOPS" AT PRINCETON,
WEST VIRGINIA.  THEY ARE THERE ENGAGED IN MAKING CLASSIFIED REPAIRS,
WHICH CONSIST OF HEAVY REPAIRS ON LOCOMOTIVES AND CARS WITHDRAWN FROM
SERVICE FOR THAT PURPOSE FOR LONG PERIODS (AN AVERAGE OF 105 DAYS FOR
LOCOMOTIVES AND 109 DAYS FOR CARS).  THE REPAIR WORK IS UPON THE
EQUIPMENT USED BY PETITIONER IN ITS TRANSPORTATION SERVICE, 97% OF
WHICH IS INTERSTATE.  AT TIMES A CONTINUOUS STREAM OF ENGINES AND CARS
PASSES THROUGH THE "BACK SHOPS" FOR SUCH REPAIRS.  WHEN NOT ENGAGED IN
REPAIR WORK, THE BACK SHOP EMPLOYEES PERFORM "STORE ORDER WORK," THE
MANUFACTURE OF MATERIAL SUCH AS RIVETS AND REPAIR PARTS, TO BE PLACED
IN RAILROAD STORES FOR USE AT THE PRINCETON SHOP AND OTHER POINTS ON
THE LINE. 

THE ACTIVITIES IN WHICH THESE EMPLOYEES ARE ENGAGED HAVE SUCH A
RELATION TO THE OTHER CONFESSEDLY INTERSTATE ACTIVITIES OF THE
PETITIONER THAT THEY ARE TO BE REGARDED AS A PART OF THEM.  ALL TAKEN
TOGETHER FALL WITHIN THE POWER OF CONGRESS OVER INTERSTATE COMMERCE. 
BALTIMORE & OHIO R. CO. V. INTERSTATE COMMERCE COMM'N, 221 U.S. 612,
619; CF. PEDERSEN V. DELAWARE, L. & W.R. CO., 229 U.S. 146, 151.  BOTH
COURTS BELOW HAVE FOUND THAT INTERRUPTION BY STRIKES OF THE BACK SHOP
EMPLOYEES, IF MORE THAN TEMPORARY, WOULD SERIOUSLY CRIPPLE PETITIONER'S
INTERSTATE TRANSPORTATION.  THE RELATION OF THE BACK SHOP TO
TRANSPORTATION IS SUCH THAT A STRIKE OF PETITIONER'S EMPLOYEES THERE,
QUITE APART FROM THE LIKELIHOOD OF ITS SPREADING TO THE OPERATING
DEPARTMENT, WOULD SUBJECT PETITIONER TO THE DANGER, SUBSTANTIAL, THOUGH
POSSIBLY INDEFINABLE IN ITS EXTENT, OF INTERRUPTION OF THE
TRANSPORTATION SERVICE.  THE CAUSE IS NOT REMOTE FROM THE EFFECT.  THE
RELATION BETWEEN THEM IS NOT TENUOUS.  THE EFFECT ON COMMERCE CANNOT BE
REGARDED AS NEGLIGIBLE.  SEE UNITED STATES V. RAILWAY EMPLOYEES'
DEPARTMENT OF THE AMERICAN FEDERATION OF LABOR, 290 FED. 978, 981,
HOLDING PARTICIPATION OF BACK SHOP EMPLOYEES IN THE NATION-WIDE
RAILROAD SHOPMEN'S STRIKE OF 1922 TO CONSTITUTE AN INTERFERENCE WITH
INTERSTATE COMMERCE.  AS THE REGULATION HERE IN QUESTION IS SHOWN TO BE
AN APPROPRIATE MEANS OF AVOIDING THAT DANGER, IT IS WITHIN THE POWER OF
CONGRESS. 

IT IS NO ANSWER, AS PETITIONER SUGGESTS, THAT IT COULD CLOSE ITS BACK
SHOPS AND TURN OVER THE REPAIR WORK TO INDEPENDENT CONTRACTORS. 
WHETHER THE RAILROAD SHOULD DO ITS REPAIR WORK IN ITS OWN SHOPS, OR IN
THOSE OF ANOTHER, IS A QUESTION OF RAILROAD MANAGEMENT.  IT IS
PETITIONER'S DETERMINATION TO MAKE ITS OWN REPAIRS WHICH HAS BROUGHT
ITS RELATIONS WITH SHOP EMPLOYEES WITHIN THE PURVIEW OF THE RAILWAY
LABOR ACT.  IT IS THE NATURE OF THE WORK DONE AND ITS RELATION TO
INTERSTATE TRANSPORTATION WHICH AFFORD ADEQUATE BASIS FOR THE EXERCISE
OF THE REGULATORY POWER OF CONGRESS. 

THE EMPLOYERS' LIABILITY CASES, 207 U.S. 463, 498, WHICH MENTIONED
RAILROAD REPAIR SHOPS AS A SUBJECT BEYOND THE POWER TO REGULATE
COMMERCE, ARE NOT CONTROLLING HERE.  WHATEVER ELSE MAY BE SAID OF THAT
PRONOUNCEMENT, IT IS OBVIOUS THAT THE COMMERCE POWER IS AS MUCH
DEPENDENT UPON THE TYPE OF REGULATION AS ITS SUBJECT MATTER.  IT IS
ENOUGH FOR PRESENT PURPOSES THAT EXPERIENCE HAS SHOWN THAT THE FAILURE
TO SETTLE, BY PEACEFUL MEANS, THE GRIEVANCES OF RAILROAD EMPLOYEES WITH
RESPECT TO RATES OF PAY, RULES OR WORKING CONDITIONS, IS FAR MORE
LIKELY TO HINDER INTERSTATE COMMERCE THAN THE FAILURE TO COMPENSATE
WORKERS WHO HAVE SUFFERED INJURY IN THE COURSE OF THEIR EMPLOYMENT. 

(B)  VALIDITY OF SEC. 2 OF THE RAILWAY LABOR ACT UNDER THE FIFTH
AMENDMENT.  THE PROVISIONS OF THE RAILWAY LABOR ACT APPLIED IN THIS
CASE, AS CONSTRUED BY THE COURT BELOW, AND AS WE CONSTRUE THEM, DO NOT
REQUIRE PETITIONER TO ENTER INTO ANY AGREEMENT WITH ITS EMPLOYEES, AND
THEY DO NOT PROHIBIT ITS ENTERING INTO SUCH CONTRACT OF EMPLOYMENT AS
IT CHOOSES, WITH ITS INDIVIDUAL EMPLOYEES.  THEY PROHIBIT ONLY SUCH USE
OF THE COMPANY UNION AS, DESPITE THE OBJECTIONS REPEATED HERE, WAS
ENJOINED IN THE RAILWAY CLERKS CASE, SUPRA, AND THEY IMPOSE ON
PETITIONER ONLY THE AFFIRMATIVE DUTY OF "TREATING WITH" THE AUTHORIZED
REPRESENTATIVES OF ITS EMPLOYEES FOR THE PURPOSE OF NEGOTIATING A LABOR
DISPUTE.    EVEN THOUGH CONGRESS, IN THE CHOICE OF MEANS TO EFFECT A
PERMISSIBLE REGULATION OF COMMERCE, MUST CONFORM TO DUE PROCESS,
RAILROAD RETIREMENT BOARD V. ALTON R. CO., SUPRA, 347; CHICAGO, R.I. &
P. RY. CO. V. UNITED STATES, 284 U.S. 80, 97; SEE LOUISVILLE JOINT
STOCK LAND BANK V. RADFORD, 295 U.S. 555, 589, IT IS EVIDENT THAT
WHERE, AS HERE, THE MEANS CHOSEN ARE APPROPRIATE TO THE PERMISSIBLE
END, THERE IS LITTLE SCOPE FOR THE OPERATION OF THE DUE PROCESS
CLAUSE.  THE RAILROAD CAN COMPLAIN ONLY OF THE INFRINGEMENT OF ITS OWN
CONSTITUTIONAL IMMUNITY, NOT THAT OF ITS EMPLOYEES.  ERIE R. CO. V.
WILLIAMS, 233 U.S. 685, 697; JEFFREY MFG. CO. V. BLAGG, 235 U.S. 571,
576; RAIL & RIVER COAL CO. V. YAPLE, 236 U.S. 338, 349; CF. HAWKINS V.
BLEAKLY, 243 U.S. 210, 214.  AND THE FIFTH AMENDMENT, LIKE THE
FOURTEENTH, SEE WEST COAST HOTEL CO. V. PARRISH, DECIDED THIS DAY,
ANTE, P. 379, IS NOT A GUARANTEE OF UNTRAMMELED FREEDOM OF ACTION AND
OF CONTRACT.  IN THE EXERCISE OF ITS POWER TO REGULATE COMMERCE,
CONGRESS CAN SUBJECT BOTH TO RESTRAINTS NOT SHOWN TO BE UNREASONABLE. 
SUCH ARE THE RESTRAINTS OF THE SAFETY APPLIANCE ACT, JOHNSON V.
SOUTHERN PACIFIC CO., 196 U.S. 1; OF THE ACT IMPOSING A WAGE SCALE ON
RAIL CARRIERS, WILSON V. NEW, SUPRA; OF THE RAILROAD EMPLOYERS'
LIABILITY ACT, SECOND EMPLOYERS' LIABILITY CASES, 223 U.S. 1; OF THE
ACT FIXING MAXIMUM HOURS OF SERVICE FOR RAILROAD EMPLOYEES WHOSE DUTIES
CONTROL OR AFFECT THE MOVEMENT OF TRAINS, BALTIMORE & OHIO R. CO. V.
INTERSTATE COMMERCE COMM'N, SUPRA; OF THE ACT PROHIBITING THE
PREPAYMENT OF SEAMEN'S WAGES, PATTERSON V. BARK EUDORA, 190 U.S. 169. 

EACH OF THE LIMITED DUTIES IMPOSED UPON PETITIONER BY THE STATUTE AND
THE DECREE DO NOT DIFFER IN THEIR PURPOSE AND NATURE FROM THOSE IMPOSED
UNDER THE EARLIER STATUTE AND ENFORCED IN THE RAILWAY CLERKS CASE,
SUPRA.  THE QUALITY OF THE ACTION COMPELLED, IS REASONABLENESS, AND
THEREFORE THE LAWFULNESS OF THE COMPULSION, MUST BE JUDGED IN THE LIGHT
OF THE CONDITIONS WHICH HAVE OCCASIONED THE EXERCISE OF GOVERNMENTAL
POWER.  IF THE COMPULSORY SETTLEMENT OF SOME DIFFERENCES, BY
ARBITRATION, MAY BE WITHIN THE LIMITS OF DUE PROCESS, SEE HARDWARE
DEALERS MUTUAL FIRE INS. CO. V. GLIDDEN CO., 284 U.S. 151, IT SEEMS
PLAIN THAT THE COMMAND OF THE STATUTE TO NEGOTIATE FOR THE SETTLEMENT
OF LABOR DISPUTES, GIVEN IN THE APPROPRIATE EXERCISE OF THE COMMERCE
POWER, CANNOT BE SAID TO BE SO ARBITRARY OR UNREASONABLE AS TO INFRINGE
DUE PROCESS. 

ADAIR V. UNITED STATES, 208 U.S. 161, AND COPPAGE V. KANSAS, 236 U.S.
1, HAVE NO PRESENT APPLICATION.  THE PROVISIONS OF THE RAILWAY LABOR
ACT INVOKED HERE NEITHER COMPEL THE EMPLOYER TO ENTER INTO ANY
AGREEMENT, NOR PRECLUDE IT FROM ENTERING INTO ANY CONTRACT WITH
INDIVIDUAL EMPLOYEES.  THEY DO NOT "INTERFERE WITH THE NORMAL EXERCISE
OF THE RIGHT OF THE CARRIER TO SELECT ITS EMPLOYEES OR TO DISCHARGE
THEM."  SEE THE RAILWAY CLERKS CASE, SUPRA, 571. 

THERE REMAINS TO BE CONSIDERED PETITIONER'S CONTENTIONS THAT THE
CERTIFICATE OF THE NATIONAL MEDIATION BOARD IS INVALID AND THAT THE
INJUNCTION GRANTED IS PROHIBITED BY THE PROVISIONS OF THE NORRIS
LAGUARDIA ACT, OF MARCH 23, 1932, C. 90, 47 STAT. 70; 29 U.S.C. SECS.
101-115. 

VALIDITY OF THE CERTIFICATE OF THE NATIONAL MEDIATION BOARD.  IN EACH
CRAFT OF PETITIONER'S MECHANICAL DEPARTMENT A MAJORITY OF THOSE VOTING
CAST BALLOTS FOR THE FEDERATION.  IN THE CASE OF THE BLACKSMITHS THE
FEDERATION FAILED TO RECEIVE A MAJORITY OF THE BALLOTS OF THOSE
ELIGIBLE TO VOTE, ALTHOUGH A MAJORITY OF THE CRAFT PARTICIPATED IN THE
ELECTION.  IN THE CASE OF THE CARMEN AND COACH CLEANERS, A MAJORITY OF
THE EMPLOYEES ELIGIBLE TO VOTE DID NOT PARTICIPATE IN THE ELECTION. 
THERE HAS BEEN NO APPEAL FROM THE RULING OF THE DISTRICT COURT THAT THE
DESIGNATION OF THE FEDERATION AS THE REPRESENTATIVE OF THE CARMEN AND
COACH CLEANERS WAS INVALID.  PETITIONER ASSAILS THE CERTIFICATION OF
THE FEDERATION AS THE REPRESENTATIVE OF THE BLACKSMITHS BECAUSE LESS
THAN A MAJORITY OF THAT CRAFT, ALTHOUGH A MAJORITY OF THOSE VOTING,
VOTED FOR THE FEDERATION. 

OF ANY CRAFT OR CLASS OF EMPLOYEES SHALL HAVE THE RIGHT TO DETERMINE
WHO SHALL BE THE REPRESENTATIVE OF THE CRAFT OR CLASS FOR THE PURPOSES
OF THIS ACT."  PETITIONER CONSTRUES THIS SECTION AS REQUIRING THAT A
REPRESENTATIVE BE SELECTED BY THE VOTES OF A MAJORITY OF ELIGIBLE
VOTERS.  IT IS TO BE NOTED THAT THE WORDS OF THE SECTION CONFER THE
RIGHT OF DETERMINATION UPON A MAJORITY OF THOSE ELIGIBLE TO VOTE, BUT
IS SILENT AS TO THE MANNER IN WHICH THAT RIGHT SHALL BE EXERCISED. 
ELECTION LAWS PROVIDING FOR APPROVAL OF A PROPOSAL BY A SPECIFIED
MAJORITY OF AN ELECTORATE HAVE BEEN GENERALLY CONSTRUED AS REQUIRING
ONLY THE CONSENT OF THE SPECIFIED MAJORITY OF THOSE PARTICIPATING IN
THE ELECTION.  CARROLL COUNTY V. SMITH, 111 U.S. 556; DOUGLASS V. PIKE
COUNTY, 101 U.S. 677; LOUISVILLE & NASHIVLLE R. CO. V. COUNTY COURT OF
DAVIDSON COUNTY, 1 SNEED (TENN.) 637; MONTGOMERY COUNTY FISCAL COURT V.
TRIMBLE, 104 KY. 629; 47 S.W. 773.  THOSE WHO DO NOT PARTICIPATE "ARE
PRESUMED TO ASSENT TO THE EXPRESSED WILL OF THE MAJORITY OF THOSE
VOTING."  CASS COUNTY V. JOHNSTON, 95 U.S. 360, 369, AND SEE CARROLL
COUNTY V. SMITH, SUPRA. 

WE SEE NO REASON FOR SUPPOSING THAT SEC. 2, FOURTH, WAS INTENDED TO
ADOPT A DIFFERENT RULE.  IF, IN ADDITION TO PARTICIPATION BY A MAJORITY
OF A CRAFT, A VOTE OF THE MAJORITY OF THOSE ELIGIBLE IS NECESSARY FOR A
CHOICE, AN INDIFFERENT MINORITY COULD PREVENT THE RESOLUTION OF A
CONTEST, AND THWART THE PURPOSE OF THE ACT, WHICH IS DEPENDENT FOR ITS
OPERATION UPON THE SELECTION OF REPRESENTATIVES.  THERE IS THE ADDED
DANGER THAT THE ABSENCE OF ELIGIBLE VOTERS MAY BE DUE LESS TO THEIR
INDIFFERENCE THAN TO COERCION BY THE EMPLOYER.  THE OPINION OF THE
TRIAL COURT DISCLOSES THAT THE MEDIATION BOARD SCHEDULED AN ELECTION TO
BE DETERMINED BY A MAJORITY OF THE ELIGIBLE VOTERS, BUT THAT THE
FEDERATION'S SUBSEQUENT PROTEST THAT THE RAILWAY WAS INFLUENCING THE
MEN NOT TO VOTE CAUSED THE BOARD TO HOLD A NEW ELECTION TO BE DECIDED
BY THE BALLOTS OF A MAJORITY OF THOSE VOTING. 

IT IS SIGNIFICANT OF THE CONGRESSIONAL INTENT THAT THE LANGUAGE OF
SEC. 2, FOURTH, WAS TAKEN FROM A RULE ANNOUNCED BY THE UNITED STATES
RAILROAD LABOR BOARD, ACTING UNDER THE LABOR PROVISIONS OF THE
TRANSPORTATION ACT OF 1920, DECISION NO. 119, INTERNATIONAL ASSOCIATION
OF MACHINISTS V. ATCHISON, T. & S.F. RY., 2 DEC. U.S. RAILROAD LABOR
BOARD, 87, 96, PAR. 15.  PRIOR TO THE ADOPTION OF THE RAILWAY LABOR
ACT, THIS RULE WAS INTERPRETED BY THE BOARD, IN DECISION NO. 1971,
BROTHERHOOD OF RAILWAY & S.S. CLERKS V. SOUTHERN PACIFIC LINES, 4 DEC.
U.S. RAILROAD LABOR BOARD 625, WHERE IT APPEARED THAT A MAJORITY OF THE
CRAFT PARTICIPATED IN THE ELECTION.  THE BOARD RULED, P. 639, THAT A
MAJORITY OF THE VOTES CAST WAS SUFFICIENT TO DESIGNATE A
REPRESENTATIVE.  A LIKE INTERPRETATION OF SEC. 2, FOURTH, WAS SUSTAINED
IN ASSOCIATION OF CLERICAL EMPLOYEES V. BROTHERHOOD OF RAILWAY & S.S.
CLERKS, 85 F.(2D) 152. 

THE PETITIONER ALSO CHALLENGES THE VALIDITY OF THE CERTIFICATE OF THE
NATIONAL MEDIATION BOARD IN THIS CASE BECAUSE IT FAILS TO STATE THE
NUMBER OF ELIGIBLE VOTERS IN EACH CRAFT OR CLASS.  THE CERTIFICATE
STATES THAT RESPONDENT "HAS BEEN DULY DESIGNATED AND AUTHORIZED TO
REPRESENT THE MECHANICAL DEPARTMENT EMPLOYEES" OF PETITIONER.  IT ALSO
SHOWS ON ITS FACE THE TOTAL NUMBER OF VOTES CAST IN EACH CRAFT IN FAVOR
OF EACH CANDIDATE, BUT OMITS TO STATE THE TOTAL NUMBER OF ELIGIBLE
VOTERS IN EACH CRAFT.  PETITIONER INSISTS THAT THIS IS A FATAL DEFECT
IN THE CERTIFICATE, UPON THE BASIS OF THOSE CASES WHICH HOLD THAT WHERE
A FINDING OF FACT OF AN ADMINISTRATIVE OFFICER OR TRIBUNAL IS
PREREQUISITE TO THE MAKING OF A RULE OR ORDER, THE FINDING MUST BE
EXPLICITLY SET OUT.  SEE PANAMA REFINING CO. V. RYAN, 293 U.S. 388;
UNITED STATES V. CHICAGO, M., ST. P. & P.R. CO., 294 U.S. 499;
ATCHISON, T. & S.F. RY. CO. V. UNITED STATES, 295 U.S. 193. 

THE PRACTICE CONTENDED FOR IS UNDOUBTEDLY DESIRABLE, BUT IT IS NOT
REQUIRED BY THE PRESENT STATUTE OR BY THE AUTHORITIES UPON WHICH
PETITIONER RELIES.  THE NATIONAL MEDIATION BOARD MAKES NO ORDER.  THE
COMMAND WHICH THE DECREE OF THE COURT ENFORCES IS THAT OF THE STATUTE,
NOT OF THE BOARD.  ITS CERTIFICATE THAT THE FEDERATION IS THE
AUTHORIZED REPRESENTATIVE OF THE EMPLOYEES IS THE ULTIMATE FINDING OF
FACT PREREQUISITE TO ENFORCEMENT BY THE COURTS OF THE COMMAND OF THE
STATUTE.  THERE IS NO CONTENTION THAT THIS FINDING IS CONCLUSIVE IN THE
ABSENCE OF A FINDING OF THE BASIC FACTS ON WHICH IT RESTS - THAT IS TO
SAY, THE NUMBER OF ELIGIBLE VOTERS, THE NUMBER PARTICIPATING IN THE
ELECTION AND THE CHOICE OF THE MAJORITY OF THOSE WHO PARTICIPATE. 
WHETHER THE CERTIFICATION, IF MADE AS TO THOSE FACTS, IS CONCLUSIVE, IT
IS UNNECESSARY NOW TO DETERMINE.  BUT WE THINK IT PLAIN THAT IF THE
BOARD OMITS TO CERTIFY ANY OF THEM, THE OMITTED FACT IS OPEN TO INQUIRY
BY THE COURT ASKED TO ENFORCE THE COMMAND OF THE STATUTE.  SEE DISMUKE
V. UNITED STATES, 297 U.S. 167, 171-173.  SUCH INQUIRY WAS MADE BY THE
TRIAL COURT, WHICH FOUND THE NUMBER OF ELIGIBLE VOTERS AND THUS
ESTABLISHED THE CORRECTNESS OF THE BOARD'S ULTIMATE CONCLUSION.  THE
CERTIFICATE, WHICH CONFORMED TO THE STATUTORY REQUIREMENT, WAS PRIMA
FACIE SUFFICIENT, AND WAS NOT SHOWN TO BE INVALID FOR WANT OF THE
REQUISITE SUPPORTING FACTS. 

VALIDITY OF THE INJUNCTION UNDER THE NORRIS-LAGUARDIA ACT. 
PETITIONER ASSAILS THE DECREE FOR ITS FAILURE TO CONFORM TO THE
REQUIREMENTS OF SEC. 9 OF THE NORRIS-LAGUARDIA ACT, WHICH PROVIDES:
"EVERY RESTRAINING ORDER OR INJUNCTION GRANTED IN A CASE INVOLVING OR
GROWING OUT OF A LABOR DISPUTE SHALL INCLUDE ONLY A PROHIBITION OF SUCH
SPECIFIC ACT OR ACTS AS MAY BE EXPRESSLY COMPLAINED OF IN THE BILL OF
COMPLAINT OR PETITION FILED IN SUCH CASE AND AS SHALL BE EXPRESSLY
INCLUDED IN  ...  FINDINGS OF FACT MADE AND FILED BY THE COURT."  THE
EVIDENT PURPOSE OF THIS SECTION, AS ITS HISTORY AND CONTEXT SHOW, WAS
NOT TO PRECLUDE MANDATORY INJUNCTIONS, BUT TO FORBID BLANKET
INJUNCTIONS AGAINST LABOR UNIONS, WHICH ARE USUALLY PROHIBITORY IN
FORM, AND TO CONFINE THE INJUNCTION TO THE PARTICULAR ACTS COMPLAINED
OF AND FOUND BY THE COURT.  WE DEEM IT UNNECESSARY TO COMMENT ON OTHER
SIMILAR OBJECTIONS, EXCEPT TO SAY THAT THEY ARE BASED ON STRAINED AND
UNNATURAL CONSTRUCTIONS OF THE WORDS OF THE NORRIS-LAGUARDIA ACT, AND
CONFLICT WITH ITS DECLARED PURPOSE, SEC. 2, THAT THE EMPLOYEE "SHALL BE
FREE FROM THE INTERFERENCE, RESTRAINT, OR COERCION OF EMPLOYERS OF
LABOR, OR THEIR AGENTS, IN THE DESIGNATION OF SUCH REPRESENTATIVES OR
IN SELF-ORGANIZATION OR IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE
OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION." 

IT SUFFICES TO SAY THAT THE NORRIS-LAGUARDIA ACT CAN AFFECT THE
PRESENT DECREE ONLY SO FAR AS ITS PROVISIONS ARE FOUND NOT TO CONFLICT
WITH THOSE OF SEC. 2, NINTH, OF THE RAILWAY LABOR ACT, AUTHORIZING THE
RELIEF WHICH HAS BEEN GRANTED.  SUCH PROVISIONS CANNOT BE RENDERED
NUGATORY BY THE EARLIER AND MORE GENERAL PROVISIONS OF THE NORRIS
LAGUARDIA ACT.  SEE THE RAILWAY CLERKS CASE, SUPRA, 571; CF. CALLAHAN
V. UNITED STATES, 285 U.S. 515, 518; WALLA WALLA V. WALLA WALLA WATER
CO., 172 U.S. 1, 22; INTERNATIONAL ALLIANCE V. REX THEATRE CORP., 73
F.(2D) 92, 93.  AFFIRMED. 

FN1  THE COURT FOUND THAT AFTER THE CERTIFICATION BY THE MEDIATION
BOARD "THE DEFENDANT, BY AND THROUGH ITS OFFICERS, AGENTS AND SERVANTS,
UNDERTOOK BY MEANS OF THE CIRCULATION OF A PETITION OR PETITIONS
ADDRESSED TO THE NATIONAL MEDIATION BOARD TO HAVE THE CERTIFICATION OF
THE NATIONAL MEDIATION BOARD AFORESAID ALTERED, CHANGED OR REVOKED SO
AS TO DEPRIVE ITS MECHANICAL DEPARTMENT EMPLOYES OF THE RIGHT TO
REPRESENTATION BY SAID SYSTEM FEDERATION NO. 40, RAILWAY EMPLOYES
DEPARTMENT OF THE AMERICAN FEDERATION OF LABOR, SO DESIGNATED AS
AFORESAID, AND THEREAFTER DID CAUSE TO BE ORGANIZED THE INDEPENDENT
SHOP CRAFTS ASSOCIATION BY INDIVIDUAL MECHANICAL DEPARTMENT EMPLOYES BY
CIRCULATING OR CAUSING TO BE CIRCULATED APPLICATIONS FOR MEMBERSHIP IN
SAID INDEPENDENT SHOP CRAFTS ASSOCIATION NOTWITHSTANDING THE
CERTIFICATION AS AFORESAID BY THE NATIONAL MEDIATION BOARD OF SAID
SYSTEM FEDERATION NO. 40, RAILWAY EMPLOYES DEPARTMENT OF THE AMERICAN
FEDERATION OF LABOR, AS THE AUTHORIZED REPRESENTATIVE OF ITS MECHANICAL
DEPARTMENT EMPLOYES,  ..." 

FN2 SECTION 2 OF THE ACT, AS AMENDED IN 1934, DECLARES THAT ITS
PURPOSES, AMONG OTHERS, ARE "(2) TO FORBID ANY LIMITATION UPON FREEDOM
OF ASSOCIATION AMONG EMPLOYEES OR ANY DENIAL, AS A CONDITION OF
EMPLOYMENT OR OTHERWISE, OF THE RIGHT OF EMPLOYEES TO JOIN A LABOR
ORGANIZATION" AND "(3) TO PROVIDE FOR THE COMPLETE INDEPENDENCE OF
CARRIERS AND OF EMPLOYEES IN THE MATTER OF SELF-ORGANIZATION TO CARRY
OUT THE PURPOSES OF THIS ACT."  THE SECTION WAS ALSO AMENDED TO PROVIDE
THAT "NEITHER PARTY SHALL IN ANY WAY INTERFERE WITH, INFLUENCE, OR
COERCE THE OTHER IN ITS CHOICE OF REPRESENTATIVES," SEC. 2, THIRD, AND
THAT "IT SHALL BE UNLAWFUL FOR ANY CARRIER TO INTERFERE IN ANY WAY WITH
THE ORGANIZATION OF ITS EMPLOYEES, OR TO USE THE FUNDS OF THE CARRIER
IN MAINTAINING OR ASSISTING OR CONTRIBUTING TO ANY LABOR ORGANIZATION
...  OR TO INFLUENCE OR COERCE EMPLOYEES IN AN EFFORT TO INDUCE THEM TO
JOIN OR REMAIN OR NOT TO JOIN OR REMAIN MEMBERS OF ANY LABOR
ORGANIZATION."  SEC. 2, FOURTH.    FN3  THE 1934 AMENDMENT IMPOSED
VARIOUS OTHER OBLIGATIONS UPON THE CARRIER, TO WHICH CRIMINAL PENALTIES
WERE ATTACHED (SEC. 2, TENTH) - E.G., PROHIBITIONS AGAINST HELPING
UNIONS, BY CONTRIBUTIONS OF FUNDS, OR ASSISTANCE IN THE COLLECTION OF
DUES, SEC. 2, FOURTH; AGAINST REQUIRING EMPLOYEES TO PROMISE TO JOIN OR
NOT TO JOIN A LABOR UNION, SEC. 2, FIFTH; AGAINST CHANGING RATES OF
PAY, ETC., WITHOUT SPECIFYING A CONFERENCE UPON THIRTY DAYS' NOTICE,
SEC. 2, SEVENTH; AND SEE THE REQUIREMENT THAT THE CARRIER POST NOTICES
THAT ALL DISPUTES WILL BE DETERMINED IN ACCORDANCE WITH THE ACT, SEC.
2, EIGHTH.    FN4  IN THE FIRST TWO YEARS AFTER THE ENACTMENT OF THE
RAILWAY LABOR ACT OF 1926, 363 CASES CONCERNING RATES OF PAY, RULES OR
WORKING CONDITIONS WERE SUBMITTED TO THE UNITED STATES BOARD OF
MEDIATION, AND ABOUT 25% OF THESE WERE WITHDRAWN BY THE PARTIES.  YET,
DURING THE SAME PERIOD, MORE THAN 600 DIRECT AND VOLUNTARY SETTLEMENTS
WERE NEGOTIATED.  SEE UNITED STATES BOARD OF MEDIATION, FIRST ANNUAL
REPORT, FOR THE FISCAL YEAR ENDED JUNE 30, 1927, PP. 10-11; SECOND
ANNUAL REPORT, FOR THE FISCAL YEAR ENDED JUNE 30, 1928, PP. 11, 58-59. 
COMPARE NATIONAL MEDIATION BOARD, SECOND ANNUAL REPORT, FOR THE FISCAL
YEAR ENDED JUNE 30, 1936, AT P. 1:  "FOR EVERY DISPUTE SUBMITTED TO
...  THESE BOARDS, THERE WERE MANY OTHERS CONSIDERED AND SETTLED IN
CONFERENCES BETWEEN REPRESENTATIVES OF CARRIERS AND OF THE EMPLOYEES AS
REQUIRED BY SECTION 2, SECOND, OF THE ACT." 

SEE ALSO TESTIMONY OF WILLIAM M. LEISERSON, CHAIRMAN OF THE NATIONAL
MEDIATION BOARD UNTIL FEBRUARY 1, 1937, AT HEARING BY NATIONAL LABOR
RELATIONS BOARD IN THE CASE OF JONES & LAUGHLIN STEEL CORPORATION, 301
U.S. 1:  "IF WE HAVE A THREAT OF A STRIKE NOW (ON THE RAILROADS) IT
MIGHT BE ON A BIG FUNDAMENTAL QUESTION, LIKE WAGES AND HOURS, AND WE
USUALLY FIND WE CAN SETTLE THOSE BY ARBITRATION OR OTHERWISE....  BUT
IF THE ISSUES INVOLVED WERE DISCRIMINATION OR DISCHARGE OF MEN BECAUSE
THEY HAD JOINED THE ORGANIZATION, OR THE QUESTION WOULD BE THE RIGHT OF
THE ORGANIZATION TO REPRESENT THEM, WE COULD NOT HAVE SETTLED THOSE
STRIKES."  SEE GOVERNMENTAL PROTECTION OF LABOR'S RIGHT TO ORGANIZE,
NATIONAL LABOR RELATIONS BOARD, DIVISION OF ECONOMIC RESEARCH, BULL. 
NO. 1, AUGUST, 1936, PP. 17-18. 

FN5  SEE ALSO STATEMENT BY REPRESENTATIVE CROSSER, IN CHARGE OF THE
BILL ON THE FLOOR, IN HEARINGS, HOUSE COMMITTEE ON RULES, 73D CONG., 2D
SESS., ON H.R. 9861, PP. 10-11, 13:  "THE PURPOSE OF THE BILL IS  ...
(INTER ALIA) TO OUTLAW THE ATTEMPT THAT HAS BEEN MADE IN NUMEROUS
INSTANCES BY EMPLOYERS WHO CONTROL ALLEGED LABOR UNIONS, AND THEREBY,
TO USE A SLANG PHRASE, TO 'GUM UP THE WORKS'....  WE HAVE HAD 8 YEARS
OF OPERATION OF THIS ACT, AND WE HAVE PREVENTED ANY STRIKES.  BUT
STRIKES HAVE BEEN THREATENED BECAUSE OF THE DEFECTS WHICH HAVE BEEN
FOUND IN THIS BILL." 

UNDER THE 1926 ACT DISPUTES OVER THE DESIGNATION OF EMPLOYEE
REPRESENTATIVES COULD BE DEALT WITH BY THE OLD UNITED STATES MEDIATION
BOARD ONLY BY AGREEMENT OF THE PARTIES.  THE CARRIERS AGREED TO AN
ELECTION CONDUCTED BY THE BOARD BUT NINE TIMES IN SIX YEARS, SEE
TESTIMONY OF WILLIAM M. LEISERSON, CHAIRMAN OF THE NATIONAL MEDIATION
BOARD UNTIL FEBRUARY 1, 1937, AT HEARING BY NATIONAL LABOR RELATIONS
BOARD IN THE CASE OF JONES & LAUGHLIN STEEL CORP., 301 U.S. 1;
GOVERNMENTAL PROTECTION OF LABOR'S RIGHT TO ORGANIZE, NATIONAL LABOR
RELATIONS BOARD, DIVISION OF ECONOMIC RESEARCH, BULL.  NO. 1, AUGUST,
1936, P. 50.  THE 1934 AMENDMENT WAS FOLLOWED BY A LARGE INCREASE IN
THE NUMBER OF REPRESENTATION DISPUTES SUBMITTED TO THE NATIONAL
MEDIATION BOARD.  SEE INFRA, NOTE 7. 

FN6  (NOTE 35A.)  "THE GOVERNMENT INTERPRETS THE NEGATIVE OBLIGATIONS
IMPOSED BY THE STATUTE AND DECREE AS HAVING THE FOLLOWING EFFECT: 

"WHEN THE MAJORITY OF A CRAFT OR CLASS HAS (EITHER BY SECRET BALLOT
OR OTHERWISE) SELECTED A REPRESENTATIVE, THE CARRIER CANNOT MAKE WITH
ANYONE OTHER THAN THE REPRESENTATIVE A COLLECTIVE CONTRACT (I.E., A
CONTRACT WHICH SETS RATES OF PAY, RULES, OR WORKING CONDITIONS),
WHETHER THE CONTRACT COVERS THE CLASS AS A WHOLE OR A PART THEREOF. 
NEITHER THE STATUTE NOR THE DECREE PREVENTS THE CARRIER FROM REFUSING
TO MAKE A COLLECTIVE CONTRACT AND HIRING INDIVIDUALS ON WHATEVER TERMS
THE CARRIER MAY BY UNILATERAL ACTION DETERMINE.  IN HIRINGS OF THAT
SORT THE INDIVIDUAL DOES NOT DEAL IN A REPRESENTATIVE CAPACITY WITH THE
CARRIER AND THE HIRING DOES NOT SET GENERAL RATES OF PAY, RULES, OR
WORKING CONDITIONS.  OF COURSE, AS A MATTER OF VOLUNTARY ACTION, NOT AS
A RESULT OF THE STATUTE OR THE DECREE, THE CARRIER MAY CONTRACT WITH
THE DULY DESIGNATED REPRESENTATIVE TO HIRE INDIVIDUALS ONLY ON THE
TERMS OF A COLLECTIVE UNDERSTANDING BETWEEN THE CARRIER AND THE
REPRESENTATIVE; BUT ANY SUCH AGREEMENT WOULD BE ENTIRELY VOLUNTARY ON
THE CARRIER'S PART AND WOULD IN NO SENSE BE COMPELLED. 

"IF THE MAJORITY OF A CRAFT OR CLASS HAS NOT SELECTED A
REPRESENTATIVE, THE CARRIER IS FREE TO MAKE WITH ANYONE IT PLEASES AND
FOR ANY GROUP IT PLEASES CONTRACTS ESTABLISHING RATES OF PAY, RULES, OR
WORKING CONDITIONS." 

FN7  THERE WAS EVIDENCE AVAILABLE TO CONGRESS THAT THE LABOR POLICY
EMBODIED IN THE RAILWAY LABOR ACT HAD BEEN SUCCESSFUL IN CURBING
STRIKES.  IN THE EIGHT YEARS SUBSEQUENT TO THE PASSAGE OF THE 1926 ACT,
THERE WERE ONLY TWO SMALL RAILROAD STRIKES.  SINCE THE 1934 AMENDMENT,
THERE HAS BEEN BUT ONE.  SEE NATIONAL MEDIATION BOARD, FIRST ANNUAL
REPORT, FOR THE FISCAL YEAR ENDED JUNE 30, 1935, P. 8; SECOND ANNUAL
REPORT, FOR THE FISCAL YEAR ENDED JUNE 30, 1936, P. 1. 

IN THE WATER TRANSPORTATION AND MOTOR TRANSPORTATION FIELDS, THERE
WERE FREQUENT STRIKES.  A TABLE SUBMITTED BY THE UNITED STATES (SEE
RESPONDENT'S BRIEF, ASSOCIATED PRESS V. NATIONAL LABOR RELATIONS BOARD,
NO. 365, OCTOBER TERM 1936, P. 57), AND DERIVED FROM UNITED STATES
DEPARTMENT OF LABOR, BUREAU OF LABOR STATISTICS, BULLETINS NO. R
339(1936), P. 4; NO. R. 389(1936), P. 4; MONTHLY LABOR REVIEW (MAY
SEPTEMBER, 1936), MONTHLY "ANALYSIS OF STRIKES," SHOWS THE FOLLOWING:

                  MAN-DAYS OF IDLENESS DUE TO LABOR STRIKES -

                               1933        1934      1935     (1936
JAN.-MAY) 

WATER TRANSPORTATION.......   32,752   1,068,867   749,534
119,820 

MOTOR TRANSPORTATION.......           155,565     859,657   202,393
46,054 

RAILROADS..................                 0   0        56
0 

YET THERE WERE MANY DISPUTES BETWEEN RAIL CARRIERS AND THEIR
EMPLOYEES.  APART FROM THE MORE TRIVIAL GRIEVANCES AND DIFFERENCES OF
OPINION IN THE INTERPRETATION OF AGREEMENTS, 876 DISPUTES, PRINCIPALLY
OVER CHANGES IN RATES OF PAY, RULES OR WORKING CONDITIONS, WERE
REFERRED TO THE UNITED STATES BOARD OF MEDIATION BETWEEN 1926 AND
1934.  THE FOLLOWING TABLE, DERIVED FROM ITS EIGHTH ANNUAL REPORT, FOR
THE FISCAL YEAR ENDED JUNE 30, 1934, PP. 4-5, INDICATES THE SUCCESS OF
THE MEDIATION AND ARBITRATION MACHINERY SET UP BY THE RAILWAY LABOR
ACT. 

MANNER OF DISPOSITION          FISCAL YEAR ENDING JUNE 30, -

                        1927 1928 1929 1930 1931 1932 1933 1934
TOTAL 

MEDIATION AGREEMENTS.....   57   84   46   25   24   45   23   17
321 

WITHDRAWN BY PARTIES.....   24   45   43   20   21   69   20   26
268 

ARBITRATION AGREEMENTS...   27   14   10    4    2    4    3    9
73 

CLOSED ACCOUNT: 

REFUSAL TO ARBITRATE....    0    0    9    3    1   47   39   50
149 

RETIRED OR CLOSED, OTHER 

CAUSES..................    3    2   21   10    5    5   10    9
65 

BUT STATISTICS SHOW THAT MANY MORE LABOR DISPUTES WERE SETTLED BY
DIRECT NEGOTIATION, SUPRA, FOOTNOTE 4, AND CONGRESS MIGHT REASONABLY
HAVE FEARED THAT THE ACTION OF CERTAIN RAILROADS IN NEGOTIATING ONLY
WITH UNIONS DOMINATED BY THEM WOULD PREVENT SUCH SETTLEMENTS AND LEAD
TO STRIKES.  SEE SUPRA, FOOTNOTE 5.  THAT THERE WERE MANY DISPUTES,
APPARENT AND LATENT, FOR WHICH THE 1926 ACT HAD NOT PROVIDED ADEQUATE
MACHINERY, IS SHOWN BY THE LARGE NUMBER OF REPRESENTATION DISPUTES
(MORE THAN 230) REFERRED TO THE NATIONAL MEDIATION BOARD IN THE FIRST
TWO YEARS OF ITS EXISTENCE, SEE FIRST ANNUAL REPORT, FOR THE FISCAL
YEAR ENDED JUNE 30, 1935, P. 9; SECOND ANNUAL REPORT, FOR THE FISCAL
YEAR ENDED JUNE 30, 1936, PP. 5, 7. 

IT IS THE BELIEF OF THE NATIONAL MEDIATION BOARD THAT PEACE IN THE
RAILROAD INDUSTRY IS LARGELY DUE TO THE 3,485 COLLECTIVE AGREEMENTS
COVERING RATES OF PAY, RULES AND WORKING CONDITIONS, WHICH WERE FILED
BY JUNE 30, 1936(SEE NATIONAL MEDIATION BOARD, SECOND ANNUAL REPORT,
FOR THE FISCAL YEAR ENDED JUNE 30, 1936, P. 26).  IN ITS FIRST ANNUAL
REPORT, FOR THE FISCAL YEAR ENDED JUNE 30, 1935, IT CONCLUDED (P. 36):
"THE ABSENCE OF STRIKES IN THE RAILROAD INDUSTRY, PARTICULARLY DURING
THE LAST TWO YEARS WHEN WIDE-SPREAD STRIKES, THE USUAL ACCOMPANIMENT OF
BUSINESS RECOVERY, PREVAILED THROUGHOUT THE COUNTRY, IS TO BE EXPLAINED
PRIMARILY NOT BY THE MEDIATION MACHINERY OF THE RAILWAY LABOR ACT, BUT
BY THE EXISTENCE OF THESE COLLECTIVE LABOR CONTRACTS.  FOR, WHILE THEY
ARE IN EXISTENCE, THESE CONTRACTS PROVIDE ORDERLY, LEGAL PROCESSES OF
SETTLING ALL DISPUTES AS A SUBSTITUTE FOR STRIKES AND INDUSTRIAL
WARFARE." 
..END :

















UNITED STATES V. NORRIS, 300 U.S. 564 


NO. 600.  ARGUED MARCH 11, 1937.  - DECIDED MARCH 29, 1937.  - 86 F.(2D)
379, REVERSED. 


1.  A RESOLUTION OF THE SENATE, RECITING THAT THE SENATE DESIRED FACTS
TO AID IT IN ENACTING REMEDIAL LEGISLATION AND IN DECIDING CONTESTS
INVOLVING SENATORIAL ELECTIONS, AUTHORIZED A COMMITTEE TO INVESTIGATE
THE CAMPAIGN EXPENDITURES OF THE VARIOUS CANDIDATES FOR THE UNITED
STATES SENATE, THE NAMES OF THE PERSONS SUBSCRIBING, THE AMOUNT
CONTRIBUTED, THE METHOD OF EXPENDITURE, AND ALL FACTS IN RELATION
THERETO, WITH POWER TO CALL WITNESSES.  A PERSON WHO HAD ATTEMPTED TO
FILE IN A PRIMARY ELECTION OF CANDIDATES FOR THE OFFICE OF UNITED
STATES SENATOR, BUT WHOSE APPLICATION HAD BEEN REJECTED BY THE STATE
SUPREME COURT AS TOO LATE, WAS CALLED BEFORE THE COMMITTEE, AND BEING
SWORN TESTIFIED THAT HE HAD RECEIVED NO FINANCIAL SUPPORT, OR ASSURANCE
OF IT, FOR HIS CAMPAIGN.  HELD: 

(1)  THAT THE INQUIRY WAS WITHIN THE COMPETENCY OF CONGRESS AND THE
COMMITTEE.  P. 573. 

(2)  THAT WITHIN THE MEANING OF THE PERJURY STATUTE (CRIMINAL CODE,
SEC. 125) IT WAS A CASE IN WHICH A LAW OF THE UNITED STATES (2 U.S.C.
191) AUTHORIZED THE OATH TO BE ADMINISTERED.  ID. 

(3)  THAT THE TESTIMONY WAS MATERIAL TO THE INQUIRY.  ID. 

2.  A WITNESS WHO COMMITS WILFUL PERJURY IN VIOLATION OF SEC. 125 OF
THE FEDERAL CRIMINAL CODE CANNOT PURGE HIMSELF OF THE OFFENCE BY
APPEARING AT A LATER STAGE OF THE INQUIRY AND RECANTING THE FALSE
TESTIMONY.  P. 573. 

UNITED STATES V. NORRIS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, POST, P. 647, TO REVIEW A JUDGMENT REVERSING A CONVICTION
FOR PERJURY IN AN INQUIRY BY A COMMITTEE OF THE SENATE. 

THE PERJURY STATUTE DOES NOT CREATE AN EXCEPTION OR IMMUNITY FOR A
WITNESS WHO RECANTS FALSE TESTIMONY WHICH HE HAS DELIBERATELY GIVEN,
AND WHICH HE HAS ALLOWED TO STAND UNTIL OTHER WITNESSES HAVE EXPOSED
HIS FALSEHOODS.  MOREOVER, IT WOULD BE AGAINST SOUND PUBLIC POLICY TO
READ SUCH AN EXCEPTION INTO THE STATUTE.  AN INSISTENCE UPON THE TRUTH
AT EVERY STAGE OF A LAWFUL INQUIRY IS NECESSARY NOT MERELY TO PROTECT
WHATEVER SUBSTANTIVE INTERESTS MAY BE AT STAKE, BUT ALSO TO INSURE
EXPEDITIOUS PROCEDURE IN THE TRIBUNAL CONDUCTING THE INQUIRY.  THERE IS
NO LIKELIHOOD THAT THE GRANT OF AN IMMUNITY SUCH AS IS CLAIMED ON
BEHALF OF THE RESPONDENT WILL LEAD A WITNESS WHO HAS DELIBERATELY LIED
TO TELL THE TRUTH LATER.  INDEED SUCH GRANT IS MORE LIKELY TO TEMPT A
KNAVE TO TELL A FALSEHOOD IN THE FIRST PLACE AND WAIT TO SEE IF HE IS
DETECTED. 

ON THE DOCTRINE OF AVOIDANCE OF PERJURY BY SUBSEQUENT RECANTATION
THERE IS NO DECISION OR DICTUM IN THIS COURT.  THE ENGLISH LAW DOES NOT
RECOGNIZE THIS DOCTRINE IN CASES WHERE THE ORIGINAL FALSE STATEMENT WAS
DELIBERATE AND UNEQUIVOCAL.  REGINA V. HOLL, 45 L.T. REP. 69(Q.B.D.,
1881); REGINA V. PHILPOTTS, 5 COX CR. CAS. 363(1851).  THE PREVAILING
VIEW IN THE AMERICAN STATE COURTS DOES NOT SUPPLY THE DOCTRINE UNLESS
THE ORIGINAL FALSEHOOD WAS DUE TO AMBIGUITY, INADVERTENCE, OR
ACCIDENTAL ERROR.  AND NO CASE HERE OR ABROAD REGARDS PERJURY AS UNDONE
WHERE NOT ONLY THE ORIGINAL FALSEHOOD WAS CLEAR AND DELIBERATE, BUT
ALSO WHERE THE RETRACTION DID NOT COME UNTIL AFTER THE WITNESS HAD LEFT
THE STAND AND OTHER WITNESSES HAD EXPOSED HIM.  MASAICHI ONO V. CARR,
56 F.(2D) 772. 

PERJURY UNDER THE CRIMINAL CODE IS MERELY A STATUTORY ADOPTION OF THE
COMMON LAW OFFENSE. 

WHEN CONGRESS ADOPTS A COMMON LAW OFFENSE, THE COMMON LAW
INTERPRETATION ATTENDS IT. 

THE WHOLE OF THE EVIDENCE OF A WITNESS IS TO BE TAKEN TOGETHER AND IF
THE TESTIMONY BE ULTIMATELY TRUE, THERE IS NO PERJURY.  KING V. JONES,
1 PEAKES REP. 37. 

A CORRECTED MISSTATEMENT FORMS NO PART OF THE EVIDENCE AFTER THE
CORRECTION IS MADE.  IT IS NO LONGER THE ASSERTION OF A FACT. 

EVEN IF THE TESTIMONY OF THE WITNESS WAS INTENTIONALLY FALSE, YET IF
HE CORRECT IT WHILE THE MATTER IS STILL PENDING, HE IS NOT GUILTY OF
PERJURY.  THE LAW ENCOURAGES THE CORRECTION.  PEOPLE V. GILLETTE, 126
APP. DIV. 665; PEOPLE V. BRILL, 165 N.Y.S. 65; BRANNAN V. STATE, 94
FLA. 565; HENRY V. HAMILTON, 7 BLACKF.  (IND.)  506(NOV. TERM, 1845);
COMMONWEALTH V. IRVINE, 14 PA. DIST. & CO. REP. 275; KING V. CARR, 1
SIDERFIN'S REP. 418; KING V. JONES, 1 PEAKES REP. 37; BISHOP, CRIM. L.,
9TH ED., SEC. 1044A. 

IF A WITNESS DARE NOT CORRECT EITHER INADVERTENT OR INTENTIONAL
MISSTATEMENTS WITHOUT RUNNING THE RISK OF PUNISHMENT, THE
ADMINISTRATION OF JUSTICE WILL BE GREATLY HINDERED. 

A COMMITTEE OF CONGRESS CAN HAVE NO GENERAL POWERS TO PROBE THE
AFFAIRS OF THE CITIZEN.  SINCLAIR V. UNITED STATES, 279 U.S. 263;
KILBOURN V. THOMPSON, 103 U.S. 168; MCGRAIN V. DAUGHERTY, 273 U.S.
135. 

EVERY INCIDENT REFERRED TO IN THE EVIDENCE PERTAINED TO THE PRIMARY
ELECTION TO BE HELD IN NEBRASKA IN 1930.  IT IS SETTLED THAT CONGRESS
HAS NO POWER TO LEGISLATE FOR THE PURPOSE OF REGULATING PRIMARY
ELECTIONS.  NEWBERRY V. UNITED STATES, 256 U.S. 231. 

THE RECORD SHOWS THAT THE APPLICATION OF RESPONDENT WAS NOT FILED
WITH THE SECRETARY OF STATE OF NEBRASKA WITHIN THE TIME REQUIRED BY
LAW, AND THAT THE SUPREME COURT OF THE STATE ORDERED THAT HIS NAME BE
OMITTED FROM THE LIST OF CANDIDATES ON THE PRIMARY ELECTION BALLOT.  AT
MOST IT WAS AN ABORTIVE EFFORT OF RESPONDENT TO BECOME A CANDIDATE. 
THERE COULD, THEREFORE, NEVER BE A CONTEST INVOLVING THE RIGHT TO A
SEAT IN THE UNITED STATES SENATE BECAUSE, MORE THAN TWO MONTHS PRIOR TO
THE TIME THAT RESPONDENT WAS CALLED AS A WITNESS BEFORE THIS SUB
COMMITTEE, THE NEBRASKA COURT HAD ORDERED HIS NAME OMITTED FROM THE
BALLOT; AND THE PRIMARY ELECTION, WITHOUT THE NAME OF RESPONDENT UPON
THE BALLOT, HAD BEEN HELD FORTY DAYS BEFORE RESPONDENT GAVE THE
TESTIMONY COMPLAINED OF IN THE INDICTMENT. 

THE POWER TO TAKE TESTIMONY TO AID THE SENATE IN DETERMINING A
CONTEST INVOLVING THE RIGHT TO A SEAT IN THE UNITED STATES SENATE
APPLIES NOT TO A REMOTELY ANTICIPATED CONTEST, AND PARTICULARLY IN A
CASE WHERE THE INQUIRY PERTAINS SOLELY TO ONE WHO WAS NOT EVEN
PERMITTED TO BE A CANDIDATE BEFORE THE PRIMARY ELECTION, BUT APPLIES TO
A CONTEST THEN EXISTING.  KILBOURN V. THOMPSON, 103 U.S. 168. 

THE SENATE RESOLUTION ONLY AUTHORIZED THE COMMITTEE TO INVESTIGATE
"THE CAMPAIGN EXPENDITURES OF THE VARIOUS CANDIDATES FOR THE UNITED
STATES SENATE."  THE RESPONDENT NEVER BECAME A CANDIDATE FOR THE UNITED
STATES SENATE.  AT MOST HE TRANSMITTED HIS REQUEST THAT HE BE PERMITTED
TO BECOME A CANDIDATE, AND ON JULY 18, 1930, THE SUPREME COURT OF
NEBRASKA DENIED THE REQUEST. 

NOT ONLY WAS THE RESPONDENT NOT A CANDIDATE, BUT THE EVIDENCE
DISCLOSES NO INCIDENT THAT COULD IN ANY WAY BE SAID TO BE A PART OF ANY
CAMPAIGN. 

THE EVIDENCE DOES NOT CONTAIN A WORD TO INDICATE THAT EITHER SENATOR
GEORGE W. NORRIS OR W. M. STEBBINS, WHO WERE THE ONLY CANDIDATES FOR
NOMINATION AT THIS PRIMARY ELECTION, HAD ANYTHING WHATSOEVER TO DO WITH
THE EVENTS SHOWN IN THE RECORD, OR WITH THE FUNDS PAID TO RESPONDENT. 
THE INDICTMENT WAS THEREFORE BASED UPON INQUIRIES THAT IN NO WISE
PERTAINED TO A CANDIDATE AND WERE THEREFORE WHOLLY IMMATERIAL. 

FURTHERMORE, THERE WAS NO CAMPAIGN NOR ANY PART OF A CAMPAIGN BY
RESPONDENT.  SO FAR AS RESPONDENT WAS CONCERNED, ANY CANDIDACY BY HIM,
OR ANY CAMPAIGN, WERE NON-EXISTING THINGS.  TO CONVICT ONE OF PERJURY
THE EVIDENCE "MUST BE STRONG AND CLEAR."  PHAIR V. UNITED STATES, 60
F.(2D) 953.  NOT HAVING ANY CAMPAIGN, THE RESPONDENT'S ANSWER TO THE
QUESTIONS WERE LEGALLY TRUTHFUL AND HE THEREFORE CANNOT BE HELD FOR
PERJURY.  UNITED STATES V. SLUTZKI, 79 F.(2D) 504. 

TO MAKE OUT A CASE OF PERJURY, "THE GOVERNMENT MUST SHOW THE FALSE
TESTIMONY WAS RELEVANT TO A MATERIAL ISSUE IN A CONTROVERSY."  MORRIS
V. UNITED STATES, 261 FED. 175; UNITED STATES V. RHODES, 218 FED. 518. 

BUT THE EVIDENCE OF THE GOVERNMENT IN THE TRIAL OF THIS CASE
INDICATED NOTHING RELEVANT OR MATERIAL TO ANY QUESTION IN WHICH THE
UNITED STATES SENATE COULD PROPERLY BE INTERESTED. 

TO CONSTITUTE PERJURY IT IS ESSENTIAL THAT THE OATH BE TAKEN IN A
"CASE IN WHICH A LAW OF THE UNITED STATES AUTHORIZES AN OATH TO BE
ADMINISTERED."  THE CHARGE OF CRIME MUST HAVE CLEAR LEGISLATIVE BASIS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE RECORD IN THIS CASE PRESENTS AN IMPORTANT QUESTION OF FEDERAL
CRIMINAL LAW WHICH HAS NOT BEEN SETTLED BY OUR DECISIONS.  DOES
RETRACTION NEUTRALIZE FALSE TESTIMONY PREVIOUSLY GIVEN AND EXCULPATE
THE WITNESS OF PERJURY?  FN1 

APRIL 10, 1930, THE UNITED STATES SENATE, BY RESOLUTION, EMPOWERED THE
VICE-PRESIDENT TO APPOINT A SPECIAL COMMITTEE TO INVESTIGATE CAMPAIGN
EXPENDITURES OF CANDIDATES FOR THE SENATE, THE COMMITTEE TO SIT AT SUCH
TIMES AND PLACES AS IT SHOULD DEEM PROPER, TO REQUIRE ATTENDANCE OF
WITNESSES AND PRODUCTION OF BOOKS AND PAPERS, AND TO ACT BY ANY
SUBCOMMITTEE.  FAILURE TO OBEY PROCESS OF THE COMMITTEE OR REFUSAL TO
ANSWER QUESTIONS PERTINENT TO THE INVESTIGATION WAS TO BE PUNISHED
ACCORDING TO LAW.  THE RESOLUTION RECITED THAT THE SENATE DESIRED FACTS
TO AID IT IN ENACTING REMEDIAL LEGISLATION AND IN DECIDING CONTESTS
INVOLVING SENATORIAL ELECTIONS.  FN2  THE COMMITTEE SO APPOINTED
AUTHORIZED SENATOR NYE, THE CHAIRMAN, TO ACT AS A SUBCOMMITTEE AND TO
NAME A SUBCOMMITTEE OF ONE OR MORE MEMBERS.  SUCH A SUBCOMMITTEE,
CONSISTING OF SENATORS NYE AND DALE, MET SEPTEMBER 22, 1930, AT
LINCOLN, NEBRASKA.  THE NEBRASKA PRIMARY ELECTION HAD BEEN HELD ON
AUGUST 12, 1930; THE GENERAL ELECTION AT WHICH THE NAMES OF SENATORIAL
CANDIDATES WERE TO APPEAR ON THE BALLOTS WAS TO BE HELD THE FOLLOWING
NOVEMBER.  SENATOR GEORGE W. NORRIS OF MCCOOK, NEBRASKA, HAD FILED FOR
THE REPUBLICAN PRIMARIES ON JANUARY 1, 1930, AND W. M. STEBBINS HAD, ON
NOVEMBER 12, 1929, FILED HIS ACCEPTANCE OF REPUBLICAN NOMINATING
PETITIONS IN HIS BEHALF.  THE RESPONDENT HAD ATTEMPTED TO FILE FOR THE
SAME PRIMARIES ON JULY 5, 1930, BUT THE SUPREME COURT OF THE STATE HAD
RULED ON JULY 18TH THAT HIS APPLICATION WAS NOT FILED WITHIN THE TIME
PRESCRIBED BY LAW AND HAD ORDERED THE SECRETARY OF STATE TO OMIT HIS
NAME FROM THE LIST OF CANDIDATES FOR UNITED STATES SENATOR TO BE
CERTIFIED TO COUNTY CLERKS AND ELECTION COMMISSIONERS.  FN3  IN THE
LIGHT OF THESE FACTS THE SUBCOMMITTEE SUMMONED THE RESPONDENT TO
TESTIFY ON SEPTEMBER 22, 1930.  HE WAS CALLED AND SWORN TO TELL THE
TRUTH AND THE WHOLE TRUTH.  HE NARRATED SOMETHING OF HIS PERSONAL
HISTORY AND SAID HIS ORIGINAL INTENTION WAS TO RUN FOR STATE RAILWAY
COMMISSIONER, BUT HE DID NOT FILE FOR THAT OFFICE BECAUSE HE THOUGHT
ABOUT FILING FOR UNITED STATES SENATOR.  HE GAVE THE FOLLOWING
TESTIMONY: 

"Q.  NOW WHAT ASSURANCE DID YOU HAVE OF FINANCIAL SUPPORT AND
BACKING? 

A. NONE WHATEVER. 

Q. IN YOUR CAMPAIGN? 

A. NONE WHATEVER. 

     .         .         .         .         . 

Q. DID YOU GET ANY ASSURANCE FROM ANYBODY THAT THEY WOULD HELP YOU -
REPUBLICAN, DEMOCRAT, INDEPENDENTS, OR ANYBODY SAY THEY WOULD HELP TO
FINANCE YOUR CAMPAIGN? 

A. NO, SIR. 

     .         .         .         .         . 

Q. DID YOU RECEIVE ANY MONEY FROM ANYBODY IN THE CAMPAIGN? 

A. I DID NOT." 

AFTER THE CONCLUSION OF HIS TESTIMONY THE SUBCOMMITTEE ADJOURNED UNTIL
THE FOLLOWING DAY, WHEN SEVERAL WITNESSES WERE EXAMINED, AMONGST WHOM
WAS ONE JOHNSON.  THE RESPONDENT WAS PRESENT AND HEARD JOHNSON
TESTIFY.  AFTER CONSULTING HIS COUNSEL HE ASKED AND WAS GRANTED
PERMISSION TO RETURN TO THE STAND.  HE THEN ADMITTED THE RECEIPT FROM
JOHNSON OF $50 TO BE USED FOR HIS FILING FEE AND A $500 GOVERNMENT
BOND, AND STATED THAT HE HAD CASHED THE BOND THROUGH HIS BROTHER AT
NORTH PLATTE. 

JUNE 23, 1931, THE GRAND JURY FOR THE DISTRICT OF NEBRASKA INDICTED
THE RESPONDENT FOR PERJURY UNDER SEC. 125 OF THE CRIMINAL CODE.  FN4
ON HIS TRIAL THE GOVERNMENT PROVED THE FACTS AS ABOVE OUTLINED AND
CALLED JOHNSON AS A WITNESS WHO TESTIFIED THAT, PURSUANT TO A PLAN
DEVISED BY HIMSELF AND OTHERS, HE HAD APPROACHED THE RESPONDENT ON JUNE
30TH AND REQUESTED HIM NOT TO FILE AS A CANDIDATE FOR RAILWAY
COMMISSIONER BUT TO FILE FOR UNITED STATES SENATOR TELLING HIM THAT IF
HE WERE WILLING TO DO THIS THE REPUBLICAN PARTY WOULD SUPPORT HIM AND
$50 WOULD AT ONCE BE PAID HIM FOR HIS FILING FEE AND $500, THE
ESTIMATED AMOUNT OF HIS CAMPAIGN EXPENSES, WOULD ALSO BE PAID TO HIM. 
HE SWORE THAT, ON JULY 2ND, HE GAVE THE RESPONDENT $50 AND, ON THE NEXT
DAY, HANDED HIM A $500 BOND. 

THE RESPONDENT TOOK THE WITNESS STAND AND ADMITTED THAT HE "KNEW AT
THE TIME OF TESTIFYING (BEFORE THE SENATE COMMITTEE) THAT HE HAD
RECEIVED $500 AND $50 AND WHAT HE WAS SAYING WAS NOT TRUE." 

IN CHARGING THE JURY THE JUDGE STATED THAT THE RESPONDENT COULD NOT
BE CONVICTED IF HE TESTIFIED CARELESSLY, NEGLIGENTLY OR HASTILY BUT THE
JURY MUST FIND THAT HIS TESTIMONY WAS INTENTIONALLY UNTRUE AND THAT HE
DID NOT BELIEVE IT TRUE WHEN HE GAVE IT.  AND, RESPECTING THE
RETRACTION OF HIS FORMER TESTIMONY, THE JUDGE STATED THAT THE JURY
MIGHT CONSIDER THE RETRACTION ALONG WITH THE OTHER EVIDENCE "ON THE
QUESTION OF WHETHER OR NOT CONSIDERING WHAT THE DEFENDANT TESTIFIED ON
THE DAY PRIOR AND HIS ACT OF TESTIFYING AGAIN THE FOLLOWING DAY AND
WHAT HE SAID IN HIS TESTIMONY, THE DEFENDANT WILFULLY, THAT IS,
INTENTIONALLY TESTIFIED FALSELY IN HIS TESTIMONY ON THE DAY BEFORE IN
THE MATTERS CHARGED AGAINST HIM." 

THE RESPONDENT REQUESTED THE FOLLOWING INSTRUCTIONS: 

"THE JURY ARE INSTRUCTED THAT EVEN IF YOU FIND THAT THE DEFENDANT IN
THIS CASE MADE FALSE ANSWERS TO THE QUESTIONS WHICH WERE PUT TO HIM AT
THE HEARING BEFORE THE SENATE COMMITTEE IN QUESTION, AND IF YOU ALSO
FIND THAT WHILE THIS HEARING WAS YET CONTINUING AND WHILE THE MATTER
WAS YET PENDING BEFORE THE SENATE COMMITTEE, THE DEFENDANT CORRECTED
ANY ERRONEOUS OR FALSE STATEMENTS THAT WERE MADE, IF ANY, THEN YOU WILL
FIND THE DEFENDANT NOT GUILTY." 

"THE JURY ARE INSTRUCTED THAT IF YOU FIND THE DEFENDANT, IN THE
LATTER PORTION OF HIS EXAMINATION BEFORE THE SENATE COMMITTEE,
CORRECTED STATEMENTS THAT MAY HAVE BEEN INCORRECT OR EVEN INTENTIONALLY
FALSE, MADE PRIOR TO THE CORRECTION OF THE DEFENDANT, THEN YOU WILL
FIND THE DEFENDANT NOT GUILTY." 

THESE WERE REFUSED AND AN EXCEPTION GRANTED.  THE JURY RENDERED A
VERDICT OF GUILTY, SENTENCE WAS IMPOSED, AND THE RESPONDENT APPEALED TO
THE CIRCUIT COURT OF APPEALS, WHICH REVERSED THE JUDGMENT,  FN5
HOLDING THAT THE TRIAL COURT ERRED IN REFUSING TO SUBMIT TO THE JURY
THE QUESTION WHETHER THE RESPONDENT HAD FULLY AND FAIRLY RETRACTED AND
CORRECTED HIS ORIGINAL FALSE STATEMENTS.  IN THE COURSE OF ITS OPINION
THE COURT STATED THE FOLLOWING WOULD HAVE BEEN A PROPER CHARGE, AND
FAILURE TO GIVE A CHARGE OF SUCH TENOR WAS REVERSIBLE ERROR:    "THE
JURY ARE CHARGED THAT THE LAW ENCOURAGES THE CORRECTION OF ERRONEOUS
AND EVEN INTENTIONALLY FALSE STATEMENTS MADE BY A WITNESS UPON A TRIAL
OR HEARING, AND SO, IF YOU SHALL FIND AND BELIEVE FROM THE EVIDENCE
THAT DEFENDANT MADE FALSE ANSWERS TO THE QUESTIONS OR ANY OF THEM WHICH
WERE PUT TO HIM AT THE HEARING BEFORE THE SENATE SUBCOMMITTEE (WHICH
QUESTIONS ARE SET OUT IN THE INDICTMENT AND WHICH QUESTIONS THE COURT
HAS ALREADY IN THIS CHARGE CALLED SPECIFICALLY TO YOUR ATTENTION), YET
THAT DEFENDANT, WHILE THE HEARING WAS CONTINUING AND UNFINISHED AGAIN
TOOK THE WITNESS STAND AND THEN AND THERE FULLY CORRECTED ALL ERRONEOUS
OR FALSE STATEMENTS, IF ANY, WHICH HAD THERETOFORE BEEN MADE BY HIM IN
ANSWER TO SAID QUESTIONS, YOU SHOULD FIND THE DEFENDANT NOT GUILTY." 

THE RESPONDENT INSISTS THAT REVERSAL OF HIS CONVICTION WAS RIGHT
BECAUSE (1) CONGRESS EXCEEDED ITS POWER IN ADOPTING RESOLUTION NO. 215,
SINCE IT CANNOT LEGISLATE FOR THE PURPOSE OF REGULATING PRIMARY
ELECTIONS; (2) PERJURY CAN ONLY BE COMMITTED IF AN OATH BE TAKEN IN A
CASE WHEREIN A LAW OF THE UNITED STATES AUTHORIZES AN OATH TO BE
ADMINISTERED, AND THE COMMITTEE HEARING WAS NOT SUCH A CASE; (3) THE
FALSE TESTIMONY CONCERNED AN IMMATERIAL MATTER, AND (4) THE WHOLE OF A
WITNESS'S EVIDENCE MUST BE TAKEN TOGETHER AND, IF HIS TESTIMONY BE
ULTIMATELY TRUE, HIS INDICTMENT FOR PERJURY CANNOT BE PREDICATED
THEREON. 

LITTLE NEED BE SAID WITH RESPECT TO THE FIRST THREE PROPOSITIONS. 
THAT IT IS WITHIN THE CONSTITUTIONAL PROVINCE OF CONGRESS TO INSTITUTE
INVESTIGATIONS AND TO COMPEL EVIDENCE WITH A VIEW TO POSSIBLE EXERCISE
OF ITS LEGISLATIVE FUNCTION  FN6  OR POSSIBLE DISCHARGE OF ITS DUTY TO
DETERMINE THE VALIDITY OF THE ELECTION OF ITS MEMBERS  FN7  IS
SETTLED.  R.S. SEC. 101,  FN8  IS A LAW OF THE UNITED STATES
AUTHORIZING ANY MEMBER OF EITHER HOUSE OF CONGRESS TO ADMINISTER OATHS
TO WITNESSES IN ANY MATTER PENDING IN EITHER HOUSE OF CONGRESS OR ANY
COMMITTEE THEREOF.  THE MATERIALITY OF THE RESPONDENT'S FALSE ANSWERS
IS CLEAR IN VIEW OF THE SCOPE OF THE INQUIRY.  THE RESOLUTION
AUTHORIZED THE COMMITTEE "TO INVESTIGATE THE CAMPAIGN EXPENDITURES OF
THE VARIOUS CANDIDATES FOR THE UNITED STATES SENATE, THE NAMES OF THE
PERSONS  ...  SUBSCRIBING, THE AMOUNT CONTRIBUTED, THE METHOD OF
EXPENDITURE, AND ALL FACTS IN RELATION THERETO  ..." 

WE COME TO THE SUBSTANTIAL QUESTION WHICH MOVED US TO GRANT THE WRIT
OF CERTIORARI.  WE HOLD THE DISTRICT JUDGE WAS RIGHT IN REFUSING TO
CHARGE AS REQUESTED BY THE RESPONDENT, AND THE JUDGMENT SHOULD NOT HAVE
BEEN REVERSED ON ACCOUNT OF HIS FAILURE SO TO DO.  THE RESPONDENT
ADMITTED HE GAVE INTENTIONALLY FALSE TESTIMONY ON SEPTEMBER 22D.  HIS
RECANTATION ON THE FOLLOWING DAY CANNOT ALTER THIS FACT.  HE WOULD HAVE
US HOLD THAT SO LONG AS THE CAUSE OR PROCEEDING IN WHICH FALSE
TESTIMONY IS GIVEN IS NOT CLOSED, THERE REMAINS A LOCUS POENITENTIAE OF
WHICH HE WAS ENTITLED TO AND DID AVAIL HIMSELF.  THE IMPLICATIONS AND
RESULTS OF SUCH A DOCTRINE PROVE ITS UNSOUNDNESS.  PERJURY IS AN
OBSTRUCTION OF JUSTICE; ITS PERPETRATION WELL MAY AFFECT THE DEAREST
CONCERNS OF THE PARTIES BEFORE A TRIBUNAL.  DELIBERATE MATERIAL
FALSIFICATION UNDER OATH CONSTITUTES THE CRIME OF PERJURY, AND THE
CRIME IS COMPLETE WHEN A WITNESS'S STATEMENT HAS ONCE BEEN MADE.  IT IS
ARGUED THAT TO ALLOW RETRACTION OF PERJURED TESTIMONY PROMOTES THE
DISCOVERY OF THE TRUTH AND, IF MADE BEFORE THE PROCEEDING IS CONCLUDED,
CAN DO NO HARM TO THE PARTIES.  THE ARGUMENT OVERLOOKS THE TENDENCY OF
SUCH A VIEW TO ENCOURAGE FALSE SWEARING IN THE BELIEF THAT IF THE
FALSITY BE NOT DISCOVERED BEFORE THE END OF THE HEARING IT WILL HAVE
ITS INTENDED EFFECT, BUT, IF DISCOVERED, THE WITNESS MAY PURGE HIMSELF
OF CRIME BY RESUMING HIS ROLE AS WITNESS AND SUBSTITUTING THE TRUTH FOR
HIS PREVIOUS FALSEHOOD.  IT IGNORES THE FACT THAT THE OATH ADMINISTERED
TO THE WITNESS CALLS ON HIM FREELY TO DISCLOSE THE TRUTH IN THE FIRST
INSTANCE AND NOT TO PUT THE COURT AND THE PARTIES TO THE DISADVANTAGE,
HINDRANCE, AND DELAY OF ULTIMATELY EXTRACTING THE TRUTH BY CROSS
EXAMINATION, BY EXTRANEOUS INVESTIGATION OR OTHER COLLATERAL MEANS. 

NOTWITHSTANDING THE FACT THAT THE TESTIMONY ORIGINALLY GIVEN AND
ALLOWED THEN TO STAND AS HIS FINAL STATEMENT ON THE SUBJECT OF INQUIRY
FALLS CLEARLY WITHIN THE DEFINITION OF SEC. 125 OF THE CRIMINAL CODE
THE RESPONDENT INSISTS THAT THE AUTHORITIES, ENGLISH AND AMERICAN,
DEMONSTRATE THAT HIS RETRACTION BEFORE THE CONCLUSION OF THE
PROCEEDINGS IN WHICH HE TESTIFIED ABSOLVE HIM AND PRECLUDE A
CONVICTION.  PERJURY HAS BEEN A COMMON LAW CRIME SINCE AT LEAST THE
SEVENTEENTH CENTURY.  QUITE GENERALLY THE CONCEPTION EMBODIED IN THE
COMMON LAW DEFINITION OF PERJURY HAS BEEN EMBODIED IN STATUTES.  THIS
IS TRUE OF SEC. 125.  BUT IT CANNOT BE SAID THAT THERE IS ANY
RESPECTABLE BODY OF AUTHORITY UNDER THE COMMON LAW OR STATUTE IN
ENGLAND OR IN THE UNITED STATES TO SUPPORT THE RESPONDENT'S POSITION. 
ON THE CONTRARY, THE CASES IN WHICH THE COURTS HAVE DEALT DIRECTLY AND
SPECIFICALLY WITH THE QUESTION HERE FOR DECISION ARE SURPRISINGLY FEW. 
THE RESPONDENT PLANTS HIMSELF UPON ROY V. CARR, 1 SIDERFIN 418, 82 ENG.
REP. 1191, A CASE DECIDED IN 1669, WHICH HE CLAIMS ESTABLISHED THE
DOCTRINE FOR WHICH HE CONTENDS AND HAS BEEN FOLLOWED BOTH IN ENGLAND
AND IN THIS COUNTRY.  A CRITICAL EXAMINATION OF THE CASE AROUSES GRAVE
DOUBT THAT IT HELD, OR WAS INTENDED TO HOLD, THAT A RETRACTION OF A
WITNESS'S FALSE TESTIMONY NEGATIVES THE COMMISSION OF PERJURY; AND IN
LATER CASES THE ENGLISH COURTS HAVE SO INTIMATED AND HAVE SAID THAT IF
IT STOOD FOR SUCH A PROPOSITION IT PROBABLY WOULD NOT BE FOLLOWED.  FN9
SEVERAL LATER ENGLISH DECISIONS SQUINT IN THE OPPOSITE DIRECTION, AND
SOME OF THEM COME NEAR TO REFUTE THE RESPONDENT'S ARGUMENT WITH RESPECT
TO THE ENGLISH LAW.  FN10 

DECISIONS OF STATE COURTS OF LAST RESORT IN THIS COUNTRY DO NOT MAKE
A MUCH BETTER CASE FOR THE ARGUMENT.  ONE STATE SUPREME COURT SEEMS TO
HAVE HELD DIRECTLY IN ACCORDANCE WITH THE CONTENTION IN AN APPEAL FROM
A CONVICTION OF PERJURY.  FN11  ONE LOWER COURT CASE IS IN ACCORD. 
FN12  IN ONE STATE COURT OF LAST RESORT WHEREIN THE QUESTION AROSE IN A
SLANDER SUIT, WHERE THE DEFENDANT WAS ALLEGED TO HAVE IMPROPERLY
CHARGED A WITNESS WITH HAVING COMMITTED PERJURY IN ANOTHER PROCEEDING,
THE COURT ANSWERED IT FAVORABLY TO RESPONDENT'S CLAIM.  FN13  THE
APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK HAS DEFINITELY HELD
WITH THE RESPONDENT UPON THE POINT, IN A CASE WHERE THE WITNESS
CORRECTED HIS FALSE TESTIMONY IMMEDIATELY AND TOLD THE TRUTH ALTHOUGH,
IN THAT CASE, THE CONVICTION WAS REVERSED ON SEVERAL GROUNDS ANY ONE OF
WHICH WOULD HAVE BEEN ADEQUATE FOR REVERSAL.  FN14  THE COURT OF
APPEALS OF NEW YORK HAS NOT SPOKEN ON THE SUBJECT, AND IN A LATER CASE
A LOWER COURT HAS REFUSED TO FOLLOW THE DECISION MENTIONED WHERE THE
CONTRADICTORY STATEMENT WAS NOT PART OF THE SAME EXAMINATION AT WHICH
THE FALSE STATEMENT WAS MADE.  FN15 

WHILE WE SHOULD ACCORD RESPECTFUL CONSIDERATION TO DECISIONS OF THE
ENGLISH AND AMERICAN COURTS SUPPORTING THE RESPONDENT'S VIEW, THE
RESEARCH OF COUNSEL AND OUR OWN EXAMINATION DISCLOSE THAT THERE IS NO
SUBSTANTIAL BODY OF AUTHORITY FAVORING IT.  AS WILL APPEAR BY SCRUTINY
OF THE CASES CITED IN NOTE 1, THE LOWER FEDERAL COURTS HAVE NOT DEALT
WITH THE QUESTION OFTEN, AND WHILE THEIR EXPRESSIONS MAY NOT BE
ENTIRELY CONSONANT, IT MAY BE SAID THAT THEY PREPONDERATE AGAINST THE
RESPONDENT'S CONTENTION.  WE ARE FREE, THEREFORE, TO GIVE SUCH MEANING
AND EFFECT TO SEC. 125 OF THE CRIMINAL CODE AS IN JUSTICE WE THINK
OUGHT TO BE ATTRIBUTED TO IT.  THE PLAIN WORDS OF THE STATUTE AND THE
PUBLIC POLICY WHICH CALLED FOR ITS ENACTMENT ALIKE DEMAND WE SHOULD
HOLD THAT THE TELLING OF A DELIBERATE LIE BY A WITNESS COMPLETES THE
CRIME DEFINED BY THE LAW.  THIS IS NOT TO SAY THAT THE CORRECTION OF AN
INNOCENT MISTAKE, OR THE ELABORATION OF AN INCOMPLETE ANSWER, MAY NOT
DEMONSTRATE THAT THERE WAS NO WILFUL INTENT TO SWEAR FALSELY.  WE HAVE
HERE NO SUCH CASE. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED AND
THAT OF THE DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  COMPARE LOUBRIEL V. UNITED STATES, 9 F.(2D) 807, 808; EX PARTE
CHIN CHAN ON, 32 F.(2D) 828; EX PARTE KEIZO SHIBATA, 35 F.(2D) 636;
JOHNSEN V. UNITED STATES, 41 F.(2D) 44, 46; MASAICHI ONO V. CARR, 56
F.(2D) 772; SEYMOUR V. UNITED STATES, 77 F.(2D) 577, 582. 

FN2  SENATE RESOLUTION NO. 215, 71ST CONG., 2D SESS., 72 CONG. REC
6841-6842. 

FN3  STATE EX REL. SMITH V. MARSH, 120 NEB. 287, 289; 232 N.W. 99. 

FN4  "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, SHALL WILLFULLY
AND CONTRARY TO SUCH OATH STATE OR SUBSCRIBE ANY MATERIAL MATTER WHICH
HE DOES NOT BELIEVE TO BE TRUE, IS GUILTY OF PERJURY, AND SHALL BE
FINED NOT MORE THAN $2,000 AND IMPRISONED NOT MORE THAN FIVE YEARS." 
R.S. SEC. 5392; 18 U.S.C. SEC. 231. 

FN5  86 F.(2D) 379. 

FN6  MCGRAIN V. DAUGHERTY, 273 U.S. 135. 

FN7  BARRY V. UNITED STATES, 279 U.S. 597. 

FN8  U.S.C. TIT. 2, SEC. 191. 

FN9  EDWARDS V. M'LEAY, 2 VESEY & D. 256, 258, 35 ENG. REP. 316; REG.
V. HOLL, 45 LAW TIMES REP. 69. 

FN10  REX V. THOROGOOD, 8 MOD. 179, 88 ENG. REP. 131; ALLEN V.
WESTLEY, HETLEY 97, 124 ENG. REP. 372; REG. V. PHILPOTTS, 5 COX'S CRIM.
CAS. 363; REG. V. HOLL, 45 LAW TIMES REP. 69. 

FN11  BRANNEN V. STATE, 94 FLA. 656, 114 SO. 429. 

FN12  COMMONWEALTH V. IRVINE, 14 PA. D. & C. REP. 275. 

FN13  HENRY V. HAMILTON, 7 BLACKF.  (IND.)  506. 

FN14  PEOPLE V. GILLETTE, 126 APP. DIV. 665; 111 N.Y.S. 133. 

FN15  PEOPLE V. MARKAN, 123 MISC. 689; 206 N.Y.S. 197. 
..END :











HENNEFORD V. SILAS MASON CO., 300 U.S. 577 


NO. 418.  ARGUED DECEMBER 14, 15, 1936.  REARGUED MARCH 1, 2, 1937.  -
DECIDED MARCH 29, 1937.  - 15 F.SUPP.  958, REVERSED. 


1.  WHEN GOODS IMPORTED IN INTERSTATE COMMERCE HAVE BECOME PART OF THE
COMMON MASS OF PROPERTY WITHIN THE STATE OF DESTINATION, THAT STATE MAY
SUBJECT THEM TO A PROPERTY TAX, OR TO A TAX UPON THEIR USE.  P. 582. 

THE PRIVILEGE OF USE IS ONLY ONE OF THE PRIVILEGES THAT MAKE UP
PROPERTY OR OWNERSHIP.  A STATE IS AT LIBERTY TO TAX THEM ALL
COLLECTIVELY OR TAX THEM SEPARATELY, AND CALLING A TAX ON THE USE ALONE
AN EXCISE DOES NOT AFFECT ITS VALIDITY UNDER THE COMMERCE CLAUSE. 

2.  A WASHINGTON STATUTE PROVIDES THAT AFTER MAY 1, 1935, EVERY
RETAIL SALE OF TANGIBLE PERSONAL PROPERTY MADE IN THAT STATE (WITH SOME
ENUMERATED EXCEPTIONS) SHALL BE SUBJECT TO A TAX OF 2% OF THE SELLING
PRICE; IT ALSO LAYS A TAX OR EXCISE, CALLED "COMPENSATION TAX," ON THE
PRIVILEGE OF USING WITHIN THE STATE ANY ARTICLE OF TANGIBLE PERSONAL
PROPERTY, PURCHASED AT RETAIL AFTER APRIL 30, 1935, AT THE RATE OF 2%
OF THE PURCHASE PRICE, INCLUDING IN SUCH PRICE THE COST OF
TRANSPORTATION FROM THE PLACE WHERE THE ARTICLE WAS PURCHASED; BUT THE
COMPENSATION TAX IS NOT TO APPLY TO THE USE OF ANY ARTICLE THE SALE OR
USE OF WHICH HAS ALREADY BEEN SUBJECTED TO A TAX EQUAL TO OR IN EXCESS
OF 2% WHETHER SUCH PRIOR TAX WAS UNDER THE LAWS OF WASHINGTON OR THOSE
OF SOME OTHER STATE; AND, IF THE RATE OF SUCH OTHER TAX IS LESS THAN
2%, THE WASHINGTON USE TAX RATE IS TO BE MEASURED BY THE DIFFERENCE. 
IN PRACTICAL EFFECT THE USE TAX HELPS RETAIL SELLERS IN WASHINGTON TO
COMPETE UPON TERMS OF EQUALITY WITH RETAIL DEALERS IN OTHER STATES WHO
ARE EXEMPT FROM A SALES TAX OR ANY CORRESPONDING BURDEN, AND TENDS TO
AVOID A DRAIN UPON THE REVENUES OF THE STATE THROUGH THE PLACING OF
ORDERS IN OTHER STATES TO ESCAPE THE TAXES ON LOCAL SALES.  HELD, AS
APPLIED TO MACHINERY AND OTHER THINGS PURCHASED IN OTHER STATES BUT
WHICH HAD HAD CONTINUOUS USE IN WASHINGTON LONG AFTER THE TIME WHEN
DELIVERY THERE WAS OVER: 

(1)  THAT THE USE TAX IS NOT UPON THE OPERATIONS OF INTERSTATE
COMMERCE, BUT UPON THE PRIVILEGE OF USE AFTER COMMERCE IS AT AN END. 
P. 582. 

(2)  THE TAX UPON THE USE AFTER THE PROPERTY IS AT REST IS NOT SO
MEASURED OR CONDITIONED AS TO HAMPER THE TRANSACTIONS OF INTERSTATE
COMMERCE OR DISCRIMINATE AGAINST THEM.  P. 583. 

(3)  READING THE STATUTE AS NOT TAXING THE USE OF ARTICLES
MANUFACTURED BY THE USERS, OR RECEIVED AS LEGACIES OR ACQUIRED IN ANY
OTHER WAY EXCEPT PURCHASE AT RETAIL, DOES NOT MAKE THE TAX ON USE IN
FACT A TAX ON THE FOREIGN SALES.  P. 587. 

3.  MOTIVES LEADING TO ITS ADOPTION CAN SELDOM, IF EVER, INVALIDATE A
TAX WHICH, APART FROM MOTIVES, WOULD BE RECOGNIZED AS LAWFUL.  P. 586. 

4.  A LEGISLATURE HAS A WIDE RANGE OF CHOICE IN CLASSIFYING AND
LIMITING THE SUBJECTS OF TAXATION.  THE CHOICE IS AS BROAD WHERE THE
TAX IS LAID UPON ONE OR A FEW OF THE ATTRIBUTES OF OWNERSHIP AS WHEN
LAID UPON THEM ALL.  P. 587. 

HENNEFORD ET AL. V. SILAS MASON CO., INC. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF WASHINGTON. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES, HOLDING
UNCONSTITUTIONAL A TAX ON THE USE OF CHATTELS BOUGHT IN OTHER STATES
AND BROUGHT INTO THE STATE OF WASHINGTON AND USED THERE.  THE SUIT WAS
BY THE TAXPAYER TO ENJOIN THE TAX COMMISSION OF WASHINGTON FROM
COLLECTING THE TAX. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

A STATUTE OF WASHINGTON TAXING THE USE OF CHATTELS IN THAT STATE IS
ASSAILED IN THIS SUIT AS A VIOLATION OF THE COMMERCE CLAUSE
(CONSTITUTION OF THE UNITED STATES, ARTICLE I, SEC. 8) IN SO FAR AS THE
TAX IS APPLICABLE TO CHATTELS PURCHASED IN ANOTHER STATE AND USED IN
WASHINGTON THEREAFTER. 

PLAINTIFFS (APPELLEES IN THIS COURT) ARE ENGAGED EITHER AS
CONTRACTORS OR AS SUBCONTRACTORS IN THE CONSTRUCTION OF THE GRAND
COULEE DAM ON THE COLUMBIA RIVER.  IN THE PERFORMANCE OF THAT WORK THEY
HAVE BROUGHT INTO THE STATE OF WASHINGTON MACHINERY, MATERIALS AND
SUPPLIES, SUCH AS LOCOMOTIVES, CARS, CONVEYORS, PUMPS, AND TRESTLE
STEEL, WHICH WERE BOUGHT AT RETAIL IN OTHER STATES.  THE COST OF ALL
THE ARTICLES WITH TRANSPORTATION EXPENSES ADDED WAS $921,189.34. 
DEFENDANTS, THE TAX COMMISSION OF WASHINGTON (APPELLANTS IN THIS COURT)
GAVE NOTICE THAT PLAINTIFFS HAD BECOME SUBJECT THROUGH THE USE OF THIS
PROPERTY TO A TAX OF $18,423.78, TWO PER CENT OF THE COST, AND MADE
DEMAND FOR PAYMENT.  A DISTRICT COURT OF THREE JUDGES, ORGANIZED IN
ACCORDANCE WITH SEC. 266 OF THE JUDICIAL CODE (28 U.S.C. SEC. 380),
ADJUDGED THE STATUTE VOID UPON ITS FACE, AND GRANTED AN INTERLOCUTORY
INJUNCTION, ONE JUDGE DISSENTING.  15 F.SUPP.  958.  THE CASE IS HERE
UPON APPEAL.  28 U.S.C. SEC. 380. 

CHAPTER 180 OF THE LAWS OF WASHINGTON FOR THE YEAR 1935, CONSISTING
OF TWENTY TITLES, LAYS A MULTITUDE OF EXCISE TAXES ON OCCUPATIONS AND
ACTIVITIES.  ONLY TWO OF THESE TAXES ARE IMPORTANT FOR THE PURPOSES OF
THE CASE AT HAND, THE "TAX ON RETAIL SALES," IMPOSED BY TITLE III, AND
THE "COMPENSATING TAX," IMPOSED BY TITLE IV ON THE PRIVILEGE OF USE. 
TITLE III PROVIDES THAT AFTER MAY 1, 1935, EVERY RETAIL SALE IN
WASHINGTON, WITH A FEW ENUMERATED EXCEPTIONS,  FN1  SHALL BE SUBJECT TO
A TAX OF 2% OF THE SELLING PRICE.  TITLE IV, WITH THE HEADING
"COMPENSATING TAX," PROVIDES (SECS. 31, 35) THAT THERE SHALL BE
COLLECTED FROM EVERY PERSON IN THE STATE "A TAX OR EXCISE FOR THE
PRIVILEGE OF USING WITHIN THIS STATE ANY ARTICLE OF TANGIBLE PERSONAL
PROPERTY PURCHASED SUBSEQUENT TO APRIL 30, 1935," AT THE RATE OF 2% OF
THE PURCHASE PRICE, INCLUDING IN SUCH PRICE THE COST OF TRANSPORTATION
FROM THE PLACE WHERE THE ARTICLE WAS PURCHASED.  IF THOSE PROVISIONS
STOOD ALONE, THEY WOULD MEAN THAT RETAIL BUYERS WITHIN THE STATE WOULD
HAVE TO PAY A DOUBLE TAX, 2% UPON THE SALE AND 2% UPON THE USE.  RELIEF
FROM SUCH A BURDEN IS PROVIDED IN ANOTHER SECTION (SEC. 32) WHICH
QUALIFIES THE USE TAX BY ALLOWING FOUR EXCEPTIONS.  ONLY TWO OF THESE
EXCEPTIONS (B AND C) CALL FOR MENTION AT THIS TIME.  FN2  SUBDIVISION
(B) PROVIDES THAT THE USE TAX SHALL NOT BE LAID UNLESS THE PROPERTY HAS
BEEN BOUGHT AT RETAIL.  SUBDIVISION (C) PROVIDES THAT THE TAX SHALL NOT
APPLY TO THE "USE OF ANY ARTICLE OF TANGIBLE PERSONAL PROPERTY THE SALE
OR USE OF WHICH HAS ALREADY BEEN SUBJECTED TO A TAX EQUAL TO OR IN
EXCESS OF THAT IMPOSED BY THIS TITLE WHETHER UNDER THE LAWS OF THIS
STATE OR OF SOME OTHER STATE OF THE UNITED STATES."  IF THE RATE OF
SUCH OTHER TAX IS LESS THAN 2%, THE EXEMPTION IS NOT TO BE COMPLETE
(SEC. 33), BUT IN SUCH CIRCUMSTANCES THE RATE IS TO BE MEASURED BY THE
DIFFERENCE. 

THE PLAN EMBODIED IN THESE PROVISIONS IS NEITHER HIDDEN NOR
UNCERTAIN.  A USE TAX IS NEVER PAYABLE WHERE THE USER HAS ACQUIRED
PROPERTY BY RETAIL PURCHASE IN THE STATE OF WASHINGTON, EXCEPT IN THE
RARE INSTANCES IN WHICH RETAIL PURCHASES IN WASHINGTON ARE NOT
SUBJECTED TO A SALES TAX.  ON THE OTHER HAND, A USE TAX IS ALWAYS
PAYABLE WHERE THE USER HAS ACQUIRED PROPERTY BY RETAIL PURCHASE IN OR
FROM ANOTHER STATE, UNLESS HE HAS PAID A SALES OR USE TAX ELSEWHERE
BEFORE BRINGING IT TO WASHINGTON.  THE TAX PRESUPPOSES EVERYWHERE A
RETAIL PURCHASE BY THE USER BEFORE THE TIME OF USE.  IF HE HAS
MANUFACTURED THE CHATTEL FOR HIMSELF, OR HAS RECEIVED IT FROM THE
MANUFACTURER AS A LEGACY OR GIFT, HE IS EXEMPT FROM THE USE TAX,
WHETHER TITLE WAS ACQUIRED IN WASHINGTON OR ELSEWHERE.  THE PRACTICAL
EFFECT OF A SYSTEM THUS CONDITIONED IS READILY PERCEIVED.  ONE OF ITS
EFFECTS MUST BE THAT RETAIL SELLERS IN WASHINGTON WILL BE HELPED TO
COMPETE UPON TERMS OF EQUALITY WITH RETAIL DEALERS IN OTHER STATES WHO
ARE EXEMPT FROM A SALES TAX OR ANY CORRESPONDING BURDEN.  ANOTHER
EFFECT, OR AT LEAST ANOTHER TENDENCY, MUST BE TO AVOID THE LIKELIHOOD
OF A DRAIN UPON THE REVENUES OF THE STATE, BUYERS BEING NO LONGER
TEMPTED TO PLACE THEIR ORDERS IN OTHER STATES IN THE EFFORT TO ESCAPE
PAYMENT OF THE TAX ON LOCAL SALES.  DO THESE CONSEQUENCES WHICH MUST
HAVE BEEN FORESEEN, NECESSITATE A HOLDING THAT THE TAX UPON THE USE IS
EITHER A TAX UPON THE OPERATIONS OF INTERSTATE COMMERCE OR A
DISCRIMINATION AGAINST SUCH COMMERCE OBSTRUCTING OR BURDENING IT
UNLAWFULLY? 

1.  THE TAX IS NOT UPON THE OPERATIONS OF INTERSTATE COMMERCE, BUT
UPON THE PRIVILEGE OF USE AFTER COMMERCE IS AT AN END. 

THINGS ACQUIRED OR TRANSPORTED IN INTERSTATE COMMERCE MAY BE
SUBJECTED TO A PROPERTY TAX, NON-DISCRIMINATORY IN ITS OPERATION, WHEN
THEY HAVE BECOME PART OF THE COMMON MASS OF PROPERTY WITHIN THE STATE
OF DESTINATION.  WILOIL CORP. V. PENNSYLVANIA, 294 U.S. 169, 175;
CUDAHY PACKING CO. V. MINNESOTA, 246 U.S. 450, 453; BROWN-FORMAN CO. V.
KENTUCKY, 217 U.S. 563, 575; AMERICAN STEEL & WIRE CO. V. SPEED, 192
U.S. 500, 519; WOODRUFF V. PARHAM, 8 WALL.  123, 137.  THIS IS SO,
INDEED, THOUGH THEY ARE STILL IN THE ORIGINAL PACKAGES.  SONNEBORN
BROS. V. CURETON, 262 U.S. 506; AMERICAN STEEL & WIRE CO. V. SPEED,
SUPRA; WOODRUFF V. PARHAM, SUPRA.  FOR LIKE REASONS THEY MAY BE
SUBJECTED, WHEN ONCE THEY ARE AT REST, TO A NON-DISCRIMINATORY TAX UPON
USE OR ENJOYMENT.  NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, 288 U.S.
249, 267; EDELMAN V. BOEING AIR TRANSPORT, INC., 289 U.S. 249, 252;
MONAMOTOR OIL CO. V. JOHNSON, 292 U.S. 86, 93.  THE PRIVILEGE OF USE IS
ONLY ONE ATTRIBUTE, AMONG MANY, OF THE BUNDLE OF PRIVILEGES THAT MAKE
UP PROPERTY OR OWNERSHIP.  NASHVILLE, C. & ST. L. RY. CO. V. WALLACE,
SUPRA; BROMLEY V. MCCAUGHN, 280 U.S. 124, 136-138; BURNET V. WELLS, 289
U.S. 670, 678.  A STATE IS AT LIBERTY, IF IT PLEASES, TO TAX THEM ALL
COLLECTIVELY, OR TO SEPARATE THE FAGGOTS AND LAY THE CHARGE
DISTRIBUTIVELY.  IBID.  CALLING THE TAX AN EXCISE WHEN IT IS LAID
SOLELY UPON THE USE (VANCOUVER OIL CO. V. HENNEFORD, 183 WASH. 317; 49
P.(2D) 14) DOES NOT MAKE THE POWER TO IMPOSE IT LESS, FOR ANYTHING THE
COMMERCE CLAUSE HAS TO SAY OF ITS VALIDITY, THAN CALLING IT A PROPERTY
TAX AND LAYING IT ON OWNERSHIP.  "A NONDISCRIMINATORY TAX UPON LOCAL
SALES  ...  HAS NEVER BEEN REGARDED AS IMPOSING A DIRECT BURDEN UPON
INTERSTATE COMMERCE AND HAS NO GREATER OR DIFFERENT EFFECT UPON THAT
COMMERCE THAN A GENERAL PROPERTY TAX TO WHICH ALL THOSE ENJOYING THE
PROTECTION OF THE STATE MAY BE SUBJECTED."  EASTERN AIR TRANSPORT, INC.
V. SOUTH CAROLINA TAX COMM'N, 285 U.S. 147, 153.  A TAX UPON THE
PRIVILEGE OF USE OR STORAGE WHEN THE CHATTEL USED OR STORED HAS CEASED
TO BE IN TRANSIT IS NOW AN IMPOST SO COMMON THAT ITS VALIDITY HAS BEEN
WITHDRAWN FROM THE ARENA OF DEBATE.  NASHVILLE, C. & ST. L. RY. CO. V.
WALLACE, SUPRA; EDELMAN V. BOEING AIR TRANSPORT, INC., SUPRA; MONAMOTOR
OIL CO. V. JOHNSON, SUPRA.  CF. VANCOUVER OIL CO. V. HENNEFORD, SUPRA. 

THE CASE BEFORE US DOES NOT CALL FOR APPROVAL OR DISAPPROVAL OF THE
DEFINITION OF USE OR ENJOYMENT IN THE RULES OF THE COMMISSION.  THOSE
RULES INFORM US THAT "PROPERTY IS PUT TO USE BY THE FIRST ACT AFTER
DELIVERY IS COMPLETED WITHIN THE STATE BY WHICH THE ARTICLE PURCHASED
IS ACTUALLY USED OR IS MADE AVAILABLE FOR USE WITH INTENT ACTUALLY TO
USE THE SAME WITHIN THE STATE.  THE TERM 'MADE AVAILABLE FOR USE' MEANS
AND INCLUDES THE EXERCISE OF ANY RIGHT OR POWER OVER TANGIBLE PERSONAL
PROPERTY PREPARATORY TO ACTUAL USE WITHIN THE STATE, SUCH AS KEEPING,
STORING, WITHDRAWING FROM STORAGE, MOVING, INSTALLING OR PERFORMING ANY
ACT BY WHICH DOMINION OR CONTROL OVER THE PROPERTY IS ASSUMED BY THE
PURCHASER."  A TAX UPON A USE SO CLOSELY CONNECTED WITH DELIVERY AS TO
BE IN SUBSTANCE A PART THEREOF MIGHT BE SUBJECT TO THE SAME OBJECTIONS
THAT WOULD BE APPLICABLE TO A TAX UPON THE SALE ITSELF.  IF THE RULES
ARE TOO DRASTIC IN THAT RESPECT OR OTHERS, THE DEFECT IS UNIMPORTANT IN
RELATION TO THIS CASE.  HERE THE MACHINERY AND OTHER CHATTELS SUBJECTED
TO THE TAX HAVE HAD CONTINUOUS USE IN WASHINGTON LONG AFTER THE TIME
WHEN DELIVERY WAS OVER.  THE PLAINTIFFS ARE NOT THE CHAMPIONS OF ANY
RIGHTS EXCEPT THEIR OWN. 

2.  THE TAX UPON THE USE AFTER THE PROPERTY IS AT REST IS NOT SO
MEASURED OR CONDITIONED AS TO HAMPER THE TRANSACTIONS OF INTERSTATE
COMMERCE OR DISCRIMINATE AGAINST THEM. 

EQUALITY IS THE THEME THAT RUNS THROUGH ALL THE SECTIONS OF THE
STATUTE.  THERE SHALL BE A TAX UPON THE USE, BUT SUBJECT TO AN OFFSET
IF ANOTHER USE OR SALES TAX HAS BEEN PAID FOR THE SAME THING.  THIS IS
TRUE WHERE THE OFFSETTING TAX BECAME PAYABLE TO WASHINGTON BY REASON OF
PURCHASE OR USE WITHIN THE STATE.  IT IS TRUE IN EXACTLY THE SAME
MEASURE WHERE THE OFFSETTING TAX HAS BEEN PAID TO ANOTHER STATE BY
REASON OF USE OR PURCHASE THERE.  NO ONE WHO USES PROPERTY IN
WASHINGTON AFTER BUYING IT AT RETAIL IS TO BE EXEMPT FROM A TAX UPON
THE PRIVILEGE OF ENJOYMENT EXCEPT TO THE EXTENT THAT HE HAS PAID A USE
OR SALES TAX SOMEWHERE.  EVERY ONE WHO HAS PAID A USE OR SALES TAX
ANYWHERE, OR, MORE ACCURATELY, IN ANY STATE, IS TO THAT EXTENT TO BE
EXEMPT FROM THE PAYMENT OF ANOTHER TAX IN WASHINGTON. 

WHEN THE ACCOUNT IS MADE UP, THE STRANGER FROM AFAR IS SUBJECT TO NO
GREATER BURDENS AS A CONSEQUENCE OF OWNERSHIP THAN THE DWELLER WITHIN
THE GATES.  THE ONE PAYS UPON ONE ACTIVITY OR INCIDENT, AND THE OTHER
UPON ANOTHER, BUT THE SUM IS THE SAME WHEN THE RECKONING IS CLOSED. 
EQUALITY EXISTS WHEN THE CHATTEL SUBJECTED TO THE USE TAX IS BOUGHT IN
ANOTHER STATE AND THEN CARRIED INTO WASHINGTON.  IT EXISTS WHEN THE
IMPORTED CHATTEL IS SHIPPED FROM THE STATE OF ORIGIN UNDER AN ORDER
RECEIVED DIRECTLY FROM THE STATE OF DESTINATION.  IN EACH SITUATION THE
BURDEN BORNE BY THE OWNER IS BALANCED BY AN EQUAL BURDEN WHERE THE SALE
IS STRICTLY LOCAL.  "THERE IS NO DEMAND IN  ...  (THE) CONSTITUTION
THAT THE STATE SHALL PUT ITS REQUIREMENTS IN ANY ONE STATUTE.  IT MAY
DISTRIBUTE THEM AS IT SEES FIT, IF THE RESULT, TAKEN IN ITS TOTALITY,
IS WITHIN THE STATE'S CONSTITUTIONAL POWER."  GREGG DYEING CO. V.
QUERY, 286 U.S. 472, 480.  IF THE SALES TAX WERE ABOLISHED, THE BUYER
IN WASHINGTON WOULD PAY AT ONCE UPON THE USE.  HE WOULD HAVE NO LONGER
AN OFFSETTING CREDIT.  WHILE THE SALES TAX IS IN FORCE, HE PAYS UPON
THE SALE, AND PAYS AT THE SAME RATE.  FOR THE OWNER WHO USES AFTER
BUYING FROM AFAR THE EFFECT IS ALL ONE WHETHER HIS COMPETITOR IS
TAXABLE UNDER ONE TITLE OR ANOTHER.  THIS COMMON SENSE CONCLUSION HAS
AMPLE PRECEDENT BEHIND IT.  ALABAMA LAID A TAX ON THE SALE OF
SPIRITUOUS LIQUORS, THE PRODUCTS OF SISTER STATES.  COMPARING THE TAX
WITH OTHERS APPLICABLE TO DOMESTIC PRODUCTS, THE COURT UPHELD THE
STATUTE.  THE METHODS OF COLLECTION WERE DIFFERENT, BUT THE TAXES WERE
COMPLEMENTARY AND WERE INTENDED TO EFFECT EQUALITY.  HINSON V. LOTT, 8
WALL.  148.  LOUISIANA LAID A TAX IN LIEU OF LOCAL TAXES ON ROLLING
STOCK OPERATED WITHIN THE STATE, BUT BELONGING TO CORPORATIONS
DOMICILED ELSEWHERE.  THE COURT COMPARED THE TAX WITH THE LOCAL TAXES
UPON RESIDENTS, AND FOUND DISCRIMINATION LACKING.  GENERAL AMERICAN
TANK CAR CORP. V. DAY, 270 U.S. 367, 372, 373.  SOUTH CAROLINA LAID A
TAX ON THE STORAGE OF GASOLINE BROUGHT FROM OTHER STATES AND HELD FOR
USE IN LOCAL BUSINESS.  THE STATUTE WAS INTERPRETED BY THE STATE COURT
AS COVERING "ALL GASOLINE STORED FOR USE AND CONSUMPTION UPON WHICH A
LIKE TAX HAS NOT BEEN PAID UNDER OTHER STATUTES."  UPON COMPARISON OF
ALL THE STATUTES, THE IMPOST WAS UPHELD.  THE TAXPAYERS HAD "FAILED TO
SHOW THAT WHATEVER DISTINCTION THERE EXISTED IN FORM, THERE WAS ANY
SUBSTANTIAL DISCRIMINATION IN FACT."  GREGG DYEING CO. V. QUERY,
SUPRA. 

BALDWIN V. G.A.F. SEELIG, INC., 294 U.S. 511, IS INVOKED BY APPELLEES
AS DECISIVE OF THE CONTROVERSY, BUT THE CASE IS FAR APART FROM THIS
ONE.  THERE A STATUTE OF NEW YORK HAD MADE PROVISION FOR A MINIMUM
PRICE TO BE PAID BY DEALERS IN MILK TO PRODUCERS IN THAT STATE.  CF.
NEBBIA V. NEW YORK, 291 U.S. 502; HEGEMAN FARMS CORP. V. BALDWIN, 293
U.S. 163.  THE SAME STATUTE PROVIDED THAT WHEN MILK FROM ANOTHER STATE
HAD BEEN BROUGHT INTO NEW YORK, THE DEALER SHOULD BE PROHIBITED FROM
SELLING IT AT ANY PRICE UNLESS IN BUYING THE MILK FROM THE OUT-OF-STATE
PRODUCER HE HAD PAID THE PRICE THAT WOULD BE NECESSARY IF HE HAD BOUGHT
WITHIN THE STATE.  NEW YORK WAS ATTEMPTING TO PROJECT ITS LEGISLATION
WITHIN THE BORDERS OF ANOTHER STATE BY REGULATING THE PRICE TO BE PAID
IN THAT STATE FOR MILK ACQUIRED THERE.  SHE SAID IN EFFECT TO FARMERS
IN VERMONT:  YOUR MILK CANNOT BE SOLD BY DEALERS TO WHOM YOU SHIP IT IN
NEW YORK UNLESS YOU SELL IT TO THEM IN VERMONT AT A PRICE DETERMINED
HERE.  WHAT WASHINGTON IS SAYING TO SELLERS BEYOND HER BORDERS IS
SOMETHING VERY DIFFERENT.  IN SUBSTANCE WHAT SHE SAYS IS THIS:  YOU MAY
SHIP YOUR GOODS IN SUCH AMOUNTS AND AT SUCH PRICES AS YOU PLEASE, BUT
THE GOODS WHEN USED IN WASHINGTON AFTER THE TRANSIT IS COMPLETED, WILL
SHARE AN EQUAL BURDEN WITH GOODS THAT HAVE BEEN PURCHASED HERE.    WE
ARE TOLD THAT A TAX UPON THE USE, EVEN THOUGH NOT UNLAWFUL BY FORCE OF
ITS EFFECTS ALONE, IS VITIATED BY THE MOTIVES THAT LED TO ITS
ADOPTION.  THESE MOTIVES CAUSE IT TO BE STIGMATIZED AS EQUIVALENT TO A
PROTECTIVE TARIFF.  BUT MOTIVES ALONE WILL SELDOM, IF EVER, INVALIDATE
A TAX THAT APART FROM ITS MOTIVES WOULD BE RECOGNIZED AS LAWFUL. 
MAGNANO CO. V. HAMILTON, 292 U.S. 40, 44; FOX V. STANDARD OIL CO., 294
U.S. 87, 100, 101.  LEAST OF ALL WILL THEY BE PERMITTED TO ACCOMPLISH
THAT RESULT WHEN EQUALITY AND NOT PREFERENCE IS THE END TO BE
ACHIEVED.  CATCH WORDS AND LABELS, SUCH AS THE WORDS "PROTECTIVE
TARIFF," ARE SUBJECT TO THE DANGERS THAT LURK IN METAPHORS AND SYMBOLS,
AND MUST BE WATCHED WITH CIRCUMSPECTION LEST THEY PUT US OFF OUR
GUARD.  A TARIFF, WHETHER PROTECTIVE OR FOR REVENUE, BURDENS THE VERY
ACT OF IMPORTATION, AND IF LAID BY A STATE UPON ITS COMMERCE WITH
ANOTHER IS EQUALLY UNLAWFUL WHETHER PROTECTION OR REVENUE IS THE MOTIVE
BACK OF IT.  BUT A TAX UPON USE, OR, WHAT IS EQUIVALENT FOR PRESENT
PURPOSES, A TAX UPON PROPERTY AFTER IMPORTATION IS OVER, IS NOT A CLOG
UPON THE PROCESS OF IMPORTATION AT ALL, ANY MORE THAN A TAX UPON THE
INCOME OR PROFITS OF A BUSINESS.  THE CONTENTION WOULD BE FUTILE THAT
WASHINGTON IN LAYING AN OWNERSHIP TAX WOULD BE DOING A WRONG TO NON
RESIDENTS IN ALLOWING A CREDIT FOR A SALES TAX ALREADY BORNE BY THE
OWNER AS A RESULT OF THE SAME OWNERSHIP.  TO CONTEND THIS WOULD BE TO
DENY THAT A STATE MAY DEVELOP ITS SCHEME OF TAXATION IN SUCH A WAY AS
TO RID ITS EXACTIONS OF UNNECESSARY OPPRESSION.  IN THE STATUTE IN
DISPUTE SUCH A SCHEME HAS BEEN DEVELOPED WITH SEDULOUS REGARD FOR EVERY
INTEREST AFFECTED.  YET A WORD OF CAUTION SHOULD BE ADDED HERE TO AVOID
THE CHANCE OF MISCONCEPTION.  WE HAVE NOT MEANT TO IMPLY BY ANYTHING
SAID IN THIS OPINION THAT ALLOWANCE OF A CREDIT FOR OTHER TAXES PAID TO
WASHINGTON MADE IT MANDATORY THAT THERE SHOULD BE A LIKE ALLOWANCE FOR
TAXES PAID TO OTHER STATES.  A STATE, FOR MANY PURPOSES, IS TO BE
RECKONED AS A SELF-CONTAINED UNIT, WHICH MAY FRAME ITS OWN SYSTEM OF
BURDENS AND EXEMPTIONS WITHOUT HEEDING SYSTEMS ELSEWHERE.  IF THERE ARE
LIMITS TO THAT POWER, THERE IS NO NEED TO MARK THEM NOW.  IT WILL BE
TIME ENOUGH TO MARK THEM WHEN A TAXPAYER PAYING IN THE STATE OF ORIGIN
IS COMPELLED TO PAY AGAIN IN THE STATE OF DESTINATION.  THIS STATUTE BY
ITS FRAMEWORK AVOIDS THAT POSSIBILITY.  THE OFFSETTING ALLOWANCE HAS
BEEN CONCEDED, WHETHER THE CONCESSION WAS NECESSARY OR NOT, AND THUS
THE SYSTEM HAS BEEN DIVESTED OF ANY SEMBLANCE OF INEQUALITY OR
PREJUDICE.  A TAXING ACT IS NOT INVALID BECAUSE ITS EXEMPTIONS ARE MORE
GENEROUS THAN THE STATE WOULD HAVE BEEN FREE TO MAKE THEM BY EXERTING
THE FULL MEASURE OF HER POWER. 

FINALLY, THERE IS ARGUMENT THAT THE TAX NOW IN QUESTION, THOUGH IN
FORM UPON THE USE, WAS IN FACT UPON THE FOREIGN SALE, AND NOT UPON THE
USE AT ALL, THE FORM BEING A SUBTERFUGE.  THE SUPPOSED BASIS FOR THAT
ARGUMENT IS A READING OF THE STATUTE WHEREBY THE USE SHALL NOT BE
TAXABLE IF THE CHATTEL WAS MANUFACTURED BY THE USER OR RECEIVED AS A
LEGACY OR ACQUIRED IN ANY WAY EXCEPT THROUGH THE MEDIUM OF PURCHASE,
AND A RETAIL ONE AT THAT.  BUT THE FACT THAT THE LEGISLATURE HAS CHOSEN
TO LAY A TAX UPON THE USE OF CHATTELS THAT HAVE BEEN BOUGHT DOES NOT
MAKE THE TAX UPON THE USE A TAX UPON THE SALE.  ONE COULD ARGUE WITH AS
MUCH REASON THAT THERE WOULD BE A TAX UPON THE SALE IF A PROPERTY TAX
WERE LIMITED TO CHATTELS SO ACQUIRED.  A LEGISLATURE HAS A WIDE RANGE
OF CHOICE IN CLASSIFYING AND LIMITING THE SUBJECTS OF TAXATION.  BELL'S
GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 237; OHIO OIL CO. V. CONWAY,
281 U.S. 146, 159.  THE CHOICE IS AS BROAD WHERE THE TAX IS LAID UPON
ONE OR A FEW OF THE ATTRIBUTES OF OWNERSHIP AS WHEN LAID UPON THEM
ALL.  FLINT V. STONE TRACY CO., 220 U.S. 107, 158, 159.  TRUE,
COLLECTIONS MIGHT BE LARGER IF THE USE WERE NOT DEPENDENT UPON A PRIOR
PURCHASE BY THE USER.  ON THE OTHER HAND, ECONOMY IN ADMINISTRATION OR
A FAIRER DISTRIBUTION OF SOCIAL BENEFITS AND BURDENS MAY HAVE BEEN
PROMOTED WHEN THE LINES WERE DRAWN AS THEY WERE.  SUCH QUESTIONS OF
FISCAL POLICY WILL NOT BE ANSWERED BY A COURT.  THE LEGISLATURE MIGHT
MAKE THE TAX BASE AS BROAD OR AS NARROW AS IT PLEASED. 

THE INTERLOCUTORY INJUNCTION WAS ERRONEOUSLY GRANTED, AND THE DECREE
MUST BE REVERSED. 

FN1  "SEC.  19.  THE TAX HEREBY LEVIED SHALL NOT APPLY TO THE
FOLLOWING SALES: 

"(A)  CASUAL AND ISOLATED SALES BY A PERSON WHO IS NOT ENGAGED IN THE
BUSINESS OF SELLING TANGIBLE PERSONAL PROPERTY AT RETAIL; 

"(B)  SALES MADE BY PERSONS IN THE COURSE OF BUSINESS ACTIVITIES WITH
RESPECT TO WHICH TAX LIABILITY IS SPECIFICALLY IMPOSED UNDER TITLE V OF
THIS ACT, WHEN THE GROSS PROCEEDS FROM SUCH SALES MUST BE INCLUDED IN
THE MEASURE OF THE TAX IMPOSED UNDER SAID TITLE V; 

"(C)  THE DISTRIBUTION AND NEWS STAND SALE OF NEWSPAPERS; 

"(D)  SALES WHICH THE STATE OF WASHINGTON IS PROHIBITED FROM TAXING
UNDER THE CONSTITUTION OF THIS STATE OR THE CONSTITUTION OR LAWS OF THE
UNITED STATES; 

"(E)  SALES OF MOTOR VEHICLE FUEL TAXABLE UNDER CHAPTER 58 OF THE
LAWS OF 1933, SECTION 5(BEING REM.  REV.  STAT., SECTION 8327-5); 

"(F)  SALES MADE ON RELIEF VOUCHERS ISSUED BY THE DEPARTMENT OF
PUBLIC WELFARE OR BY ANY COUNTY OR CITY OR OTHER WELFARE AGENCY; 

"(G)  SALES OF FRESH SWEET MILK, RAW UNPROCESSED FRUITS AND
VEGETABLES, BUTTER, EGGS, CHEESE, CANNED MILK AND UNSWEETENED BREAD IN
LOAF FORM (INCLUDING ROLLS AND BUNS), SOLD FOR CONSUMPTION OFF THE
PREMISES." 

FN2  FOR GREATER CERTAINTY EXCEPTIONS (A) AND (D) ARE STATED IN THIS
NOTE: 

"THE PROVISIONS OF THIS TITLE SHALL NOT APPLY: 

"(A)  IN RESPECT TO THE USE OF ANY ARTICLE OF TANGIBLE PERSONAL
PROPERTY BROUGHT INTO THE STATE OF WASHINGTON BY A NON-RESIDENT THEREOF
FOR HIS OR HER USE OR ENJOYMENT WHILE WITHIN THE STATE; 

"(D)  IN RESPECT TO THE USE OF TANGIBLE PERSONAL PROPERTY PURCHASED
DURING ANY CALENDAR MONTH, THE TOTAL PURCHASE PRICE OF WHICH IS LESS
THAN TWENTY ($20.00) DOLLARS." 

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER DISSENT. 
..END :

















MARTIN V. NATIONAL SURETY CO., 300 U.S. 588 


NO. 500.  ARGUED MARCH 2, 3, 1937.  - DECIDED MARCH 29, 1937.  - 85
F.(2D) 135, AFFIRMED. 


1.  A PAYMENT BY THE GOVERNMENT OF MONEY DUE ON A CONSTRUCTION
CONTRACT, MADE TO ONE WHO COLLECTED IT UNDER A POWER OF ATTORNEY AND
LETTER FROM THE CONTRACTOR INTENDED TO OPERATE AS AN ASSIGNMENT
(CONTRARY TO R.S., SEC. 3477), IS TO BE REGARDED AS PAYMENT TO THE
CONTRACTOR THROUGH HIS REPRESENTATIVE.  P. 594. 

2.  THE PROVISIONS OF R.S., SEC. 3477; 31 U.S.C. 203, DECLARING ALL
ASSIGNMENTS OF ANY CLAIM UPON THE UNITED STATES "ABSOLUTELY NULL AND
VOID" UNLESS MADE AFTER THE ALLOWANCE OF SUCH CLAIM, THE ASCERTAINMENT
OF THE AMOUNT DUE, AND THE ISSUING OF A WARRANT FOR THE PAYMENT
THEREOF, ARE PROVISIONS FOR THE PROTECTION OF THE GOVERNMENT, AND NOT
FOR THE REGULATION OF THE EQUITIES OF CLAIMANTS GROWING OUT OF
IRREGULAR ASSIGNMENTS, WHEN COLLECTION IS COMPLETE AND THE GOVERNMENT'S
LIABILITY ENDED.  P. 594. 

3.  MONEYS DUE BY THE GOVERNMENT AS DEFERRED PAYMENTS UNDER A
BUILDING CONTRACT WERE PAID OVER BY THE GOVERNMENT TO THE CONTRACTOR,
ALTHOUGH THE CONTRACTOR HAD FAILED TO PERFORM THE OBLIGATION IMPOSED ON
HIM BY THE MATERIALMEN'S ACT, 40 U.S.C. 270, AND BY HIS BOND, TO PAY
PERSONS WHO SUPPLIED LABOR AND MATERIALS IN THE PROGRESS OF THE WORK. 
THE CONTRACTOR, IN OBTAINING HIS BOND, HAD PROMISED THE SURETY IN
WRITING THAT HE WOULD NOT ASSIGN ANY SUCH PAYMENTS TO ANY THIRD PERSON
AND HAD, ON THE CONTRARY, UNDERTAKEN TO ASSIGN THEM TO THE SURETY TO
THE END THAT, IN THE EVENT OF ANY BREACH OR DEFAULT IN THE GOVERNMENT
CONTRACT, SUCH MONEY MIGHT BE CREDITED UPON ANY LOSS OR DAMAGE
SUSTAINED BY THE SURETY UNDER THE BOND.  HELD THAT AN EQUITABLE LIEN
AROSE FROM THE ASSIGNMENT IN FAVOR OF THE SURETY TO HAVE THE MONEYS
RECEIVED BY THE CONTRACTOR FROM THE GOVERNMENT APPLIED TO THE
SATISFACTION OF THE CLAIMS OF LABORERS AND MATERIALMEN, AND THAT THIS
EQUITY WAS SUPERIOR TO THE CLAIM OF ONE WHO, WITH NOTICE, HAD LENT
MONEY TO THE CONTRACTOR AND, UNDER POWER OF ATTORNEY FROM THE
CONTRACTOR, HAD COLLECTED THE DEFERRED PAYMENTS FROM THE GOVERNMENT AND
APPLIED THEM TO HIS LOAN.  P. 595. 

4.  FAILURE TO PAY MATERIALMEN, AS REQUIRED BY 40 U.S.C. 270, AND BY
THE CONTRACTOR'S BOND, IS A DEFAULT IN THE PERFORMANCE OF THE
CONSTRUCTION CONTRACT, SINCE THE STATUTE COMMANDS THAT THE BOND,
CONDITIONED ON SUCH PAYMENTS, SHALL BE EXECUTED BY THE CONTRACTOR
BEFORE THE COMMENCEMENT OF THE WORK, AND THE TERMS OF THE BOND ARE READ
INTO THE CONTRACT.  P. 597. 

MARTIN V. NATIONAL SURETY CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 299 U.S. 536, TO REVIEW THE AFFIRMANCE OF A FINAL DECREE
OF THE DISTRICT COURT IN A SUIT BY THE SURETY ON A BOND SECURING A
PUBLIC BUILDING CONTRACT.  AT THE PRAYER OF THE SURETY, MONEY PAID THE
CONTRACTOR BY THE GOVERNMENT WAS IMPOUNDED AND APPLIED TO THE CLAIMS OF
MATERIALMEN AND LABORERS.  THE PETITIONER IN THIS CASE, WHO HAD LENT
MONEY TO THE CONTRACTOR, HAD, BY THE CONTRACTOR'S AUTHORITY, RECEIVED
THE PAYMENT FROM THE GOVERNMENT AND APPLIED IT TO HIS DEBT. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

A CONTROVERSY IS HERE AS TO THE INTERESTS OF RIVAL CLAIMANTS IN
MONEYS PAID BY THE GOVERNMENT PURSUANT TO A BUILDING CONTRACT, THE ONE
CLAIM BEING FOUNDED ON AN ASSIGNMENT TO A SURETY, WHICH IS HELD FOR THE
BENEFIT OF MATERIALMEN AND LABORERS, THE OTHER ON A POWER OF ATTORNEY,
LATER THAN THE ASSIGNMENT, WHICH WAS GIVEN TO A CREDITOR AS SECURITY
FOR A LOAN. 

ON FEBRUARY 12, 1932, A CONTRACT WAS MADE BETWEEN THE GOVERNMENT OF
THE UNITED STATES AND TOBIN, A BUILDER, FOR THE CONSTRUCTION OF A POST
OFFICE AT CARLINVILLE, ILLINOIS.  THE STATUTE CALLED FOR A BOND WITH A
GOOD AND SUFFICIENT SURETY CONDITIONED TO THE EFFECT THAT THE
CONTRACTOR WOULD PROMPTLY MAKE PAYMENT TO ALL PERSONS SUPPLYING THE
PRINCIPAL WITH LABOR AND MATERIALS IN THE PROSECUTION OF THE WORK.  40
U.S.C. SEC. 270; AMERICAN SURETY CO. V. WESTINGHOUSE ELECTRIC CO., 296
U.S. 133, 135.  SUCH A BOND WAS GIVEN IN THE SUM OF $25,000 BY THE
NATIONAL SURETY COMPANY, ACTING THROUGH GUY S. MARTIN, ITS AGENT. 
MARTIN, WHO IS THE PETITIONER IN THIS COURT, HAD BEEN ORDERED BY ONE OF
THE OFFICERS OF THE COMPANY NOT TO EXECUTE THE BOND, AND IN SIGNING IT
DISOBEYED THE ORDER.  THE FACT OF DISOBEDIENCE WAS UNKNOWN TO THE
OBLIGEE, AND BY CONCESSION THE BOND IS BINDING ACCORDING TO ITS TERMS. 
IN A WRITTEN APPLICATION THE CONTRACTOR STATED TO THE SURETY THAT HE
HAD NOT ASSIGNED AND WOULD NOT ASSIGN TO THIRD PERSONS HIS PAYMENTS ON
THE CONTRACT OR ANY PART THEREOF.  IN FURTHER CONSIDERATION OF THE
EXECUTION OF THE BOND HE DID BY THE SAME INSTRUMENT ASSIGN THE PAYMENTS
TO THE SURETY IN THE EVENT OF ANY BREACH OR DEFAULT IN THE CONTRACT,
THE PROCEEDS TO BE CREDITED UPON ANY LOSS OR DAMAGE.*THERE WAS ALSO A
COVENANT OF INDEMNITY, AND A COVENANT THAT IN THE EVENT OF THE FILING
OF ANY LIENS THERE WOULD BE A DEPOSIT WITH THE SURETY SUFFICIENT TO
SECURE THEM. 

*THE ASSIGNMENT READS AS FOLLOWS:  "THAT IN FURTHER CONSIDERATION OF
THE EXECUTION OF SAID BOND, THE UNDERSIGNED HEREBY ASSIGNS, TRANSFERS
AND CONVEYS TO THE COMPANY ALL THE DEFERRED PAYMENTS AND RETAINED
PERCENTAGES, AND ANY AND ALL MONEYS AND PROPERTIES THAT MAY BE DUE AND
PAYABLE TO THE UNDERSIGNED AT THE TIME OF ANY BREACH OR DEFAULT IN SAID
CONTRACT, OR THAT THEREAFTER MAY BECOME DUE AND PAYABLE TO THE
UNDERSIGNED ON ACCOUNT OF SAID CONTRACT, OR ON ACCOUNT OF EXTRA WORK OR
MATERIALS SUPPLIED IN CONNECTION THEREWITH, HEREBY AGREEING THAT SUCH
MONEY, AND THE PROCEEDS OF SUCH PAYMENTS AND PROPERTIES SHALL BE THE
SOLE PROPERTY OF THE COMPANY AND TO BE BY IT CREDITED UPON ANY LOSS,
COST, DAMAGE, CHARGE AND EXPENSE SUSTAINED OR INCURRED BY IT UNDER SAID
BOND." 

MARTIN'S AGENCY WAS CANCELED AFTER THE WRITING OF THE BOND IN BREACH
OF HIS INSTRUCTIONS.  WITH FULL KNOWLEDGE OF THE APPLICATION AND OF THE
DUTIES THERE ASSUMED, HE LOANED MONEYS TO THE CONTRACTOR FROM TIME TO
TIME UNDER AN AGREEMENT FOR THE DIVISION OF THE PROFITS OF THE
ENTERPRISE.  BY DECEMBER, 1932, WHEN THE BUILDING WAS NEAR COMPLETION,
THE TOTAL OF THESE LOANS WAS IN EXCESS OF $10,000, EXCLUSIVE OF ANY
INTEREST.  THE WORK HAD BEEN DONE TO THE SATISFACTION OF THE
GOVERNMENT, BUT BILLS FOR LABOR AND MATERIALS WERE LARGELY IN DEFAULT. 
THE SURETY BECAME ALARMED.  IN THE LATTER PART OF DECEMBER AN OFFICER
OF THE COMPANY GAVE NOTICE TO THE CONTRACTOR THAT THE COMPANY WOULD
INSIST UPON THE EXECUTION OF A POWER OF ATTORNEY FOR THE COLLECTION OF
ANY PAYMENTS THEN OWING FROM THE GOVERNMENT OR FALLING DUE THEREAFTER. 
TOBIN TOOK THE DOCUMENT AWAY WITH HIM, PROMISING TO SHOW IT TO HIS
LAWYER.  INSTEAD HE SHOWED IT TO MARTIN, FOR WHOSE BENEFIT HE SIGNED
ANOTHER POWER OF ATTORNEY AS WELL AS A LETTER, ADDRESSED TO THE
TREASURY DEPARTMENT, DIRECTING THAT ALL CHECKS FOR TOBIN SHOULD
THEREAFTER GO TO MARTIN.  THESE DOCUMENTS WERE INTENDED TO HAVE THE
EFFECT OF AN ASSIGNMENT WHICH WOULD BE SECURITY TO MARTIN FOR THE
AMOUNT OF HIS ADVANCES.  BOTH DOCUMENTS WERE FORWARDED TO THE TREASURY
AS SOON AS THEY WERE SIGNED.  THE SURETY DID NOT KNOW OF THEM TILL FIVE
OR SIX WEEKS LATER.  AT LAST, ON FEBRUARY 4, 1933, TOBIN, PRESSED AGAIN
TO CARRY OUT HIS AGREEMENT, ADMITTED THAT THE POWER OF ATTORNEY HAD
BEEN TURNED OVER TO MARTIN, BUT PROMISED TO TRY TO GET IT BACK.  EVEN
THEN THERE WAS DENIAL THAT IT WAS ON FILE IN THE TREASURY.  BUT THE
PROMISE, EVEN IF SINCERE, WAS NO LONGER SUSCEPTIBLE OF FULFILMENT.  ON
THE VERY DAY IT WAS MADE, MARTIN HAD GONE TO WASHINGTON, HAD VISITED
THE TREASURY, AND HAD RECEIVED FROM THE GOVERNMENT A WARRANT FOR
$10,448.10, THE PROGRESS OR DEFERRED PAYMENTS THEN DUE UPON THE
CONTRACT.  THIS SUM HE COLLECTED ON FEBRUARY 6, AND APPLIED UPON HIS
LOANS.  AT THAT TIME THE BUILDING WAS SUBSTANTIALLY COMPLETED, THOUGH
THERE WAS STILL OWING FROM THE GOVERNMENT $5,700, MADE UP OF A RETAINED
PERCENTAGE PLUS A SMALL ADDITIONAL AMOUNT TO COVER UNFINISHED WORK. 

THE SURETY ASCERTAINED THE TRUTH A DAY OR TWO THEREAFTER.  ON
FEBRUARY 9, 1933, IT BROUGHT SUIT IN A DISTRICT COURT IN MISSOURI TO
PROTECT THE INTERESTS OF THE MATERIALMEN AND LABORERS, JOINING TOBIN
AND MARTIN AS DEFENDANTS AS WELL AS CERTAIN OFFICERS OF THE
GOVERNMENT.  IT PRAYED INTER ALIA THAT THE MONEYS RECEIVED BY MARTIN BE
IMPOUNDED, AND THAT THE FUND, WHEN DEPOSITED IN COURT, BE DISBURSED IN
PAYMENT OF THE BILLS FOR MATERIAL AND LABOR, AND IN EXONERATION OF THE
BOND.  AT THE BEGINNING OF THE SUIT, TOBIN WAS ALREADY INSOLVENT.  THE
SURETY BECAME INSOLVENT LATER, AND RENOUNCED IN FAVOR OF THE
MATERIALMEN AND LABORERS ALL ITS RIGHTS AND INTERESTS IN THE FUND IN
LITIGATION.  MARTIN, YIELDING TO THE COMPULSION OF INTERLOCUTORY
DECREES, PAID INTO THE REGISTRY OF THE COURT WHAT HE HAD COLLECTED FROM
THE GOVERNMENT.  AFTER NOTICE TO MATERIALMEN AND LABORERS TO FILE THEIR
CLAIMS AGAINST THE FUND, THE COURT MADE A FINAL DECREE DISPOSING OF THE
CONTROVERSY.  MARTIN'S CLAIM WAS DISMISSED ON THE GROUND THAT HE WAS A
PARTNER WITH THE CONTRACTOR, AND COULD GAIN NOTHING BY HIS ASSIGNMENT
EXCEPT IN SUBORDINATION TO THE CREDITORS.  THE CLAIMS OF MATERIALMEN
AND LABORERS (HEREINAFTER, FOR CONVENIENCE, REFERRED TO AS MATERIALMEN)
WERE CONSIDERED AND ADJUDICATED, AND DISTRIBUTION WAS DECREED. 

THE CASE WENT TO THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT UPON AN
APPEAL BY MARTIN.  THE DECREE WAS THERE AFFIRMED.  85 F.(2D) 135. 
WITHOUT DISPUTING THE FINDING THAT MARTIN WAS TO SHARE WITH TOBIN IN
THE PROFITS OF THE ENTERPRISE, THE COURT OF APPEALS DID NOT PASS UPON
THE QUESTION WHETHER THE RELATION WAS ONE OF PARTNERSHIP.  IT PLACED
ITS RULING UPON THE BROAD GROUND THAT, APART FROM ANY ASSIGNMENT OR ANY
STATUTE, THE PROCEEDS OF A BUILDING CONTRACT ARE CHARGEABLE IN FAVOR OF
MATERIALMEN WITH AN EQUITABLE LIEN, WHICH ATTACHES UPON COLLECTION,
EVEN IF NOT BEFORE, AND WHICH CANNOT BE OVERRIDDEN AT THE WILL OF THE
CONTRACTOR BY PAYMENT TO HIS OTHER CREDITORS, THOUGH THE PAYMENT BE
MADE IN FULFILMENT OF A PROMISE.  FOR THIS IT CITED BELKNAP HARDWARE &
MFG. CO. V. OHIO RIVER CONTRACT CO., 271 FED. 144, AND UNITED STATES
FIDELITY & GUARANTY CO. V. SWEENEY, 80 F.(2D) 235, 238, CONCEDING THE
EXISTENCE OF OTHER CASES CONTRA.  THIRD NATIONAL BANK V. DETROIT
FIDELITY & SURETY CO., 65 F.(2D) 548; KANE V. FIRST NATIONAL BANK OF EL
PASO, 56 F.(2D) 534; FIDELITY & DEPOSIT CO. V. UNION STATE BANK, 21
F.(2D) 102.  THE OPINION DWELLS UPON THE CONFUSION IN WHICH THE SUBJECT
IS ENVELOPED.  WE GRANTED CERTIORARI. 

OUR DECISION WILL BE KEPT WITHIN THE NECESSITIES OF THE SPECIFIC
CONTROVERSY HERE.  EVEN SO, THE GROUNDS CHOSEN, THOUGH NARROWER THAN
THOSE ASSIGNED BELOW, MAY BE EXPECTED TO BE HELPFUL AS A GUIDE IN OTHER
CASES.  THE PROCEEDS OF THE CONTRACT, WHEN COLLECTED BY MARTIN UNDER
HIS POWER OF ATTORNEY, WERE RECEIVED BY HIM WITH KNOWLEDGE OF THE
AGREEMENT BETWEEN THE CONTRACTOR AND THE SURETY WHEREBY SUCH PROCEEDS
BECAME A FUND TO BE DEVOTED IN THE FIRST INSTANCE TO THE PAYMENT OF
MATERIALMEN AND OTHERS SIMILARLY SITUATED.  IN OUR VIEW OF THE LAW, THE
EQUITIES IN FAVOR OF MATERIALMEN GROWING OUT OF THAT AGREEMENT WERE
IMPRESSED UPON THE FUND IN THE POSSESSION OF THE COURT. 

AN ACT OF CONGRESS TELLS US THAT ALL TRANSFERS AND ASSIGNMENTS "OF
ANY CLAIM UPON THE UNITED STATES  ...  AND ALL POWERS OF ATTORNEY,
ORDERS, OR OTHER AUTHORITIES FOR RECEIVING PAYMENT OF ANY SUCH CLAIM
...  SHALL BE ABSOLUTELY NULL AND VOID, UNLESS THEY ARE FREELY MADE AND
EXECUTED IN THE PRESENCE OF AT LEAST TWO ATTESTING WITNESSES, AFTER THE
ALLOWANCE OF SUCH A CLAIM, THE ASCERTAINMENT OF THE AMOUNT DUE, AND THE
ISSUING OF A WARRANT FOR THE PAYMENT THEREOF."  R.S. SEC. 3477; 31
U.S.C. SEC. 203.  BY FORCE OF THAT PRONOUNCEMENT THE GOVERNMENT WAS AT
LIBERTY TO HOLD THE MONEY BACK TILL DEMANDED BY THE CONTRACTOR
PERSONALLY, DISREGARDING ANY ASSIGNMENT OR POWER OF ATTORNEY FOR ITS
PAYMENT TO ANOTHER.  BUT THE GOVERNMENT DID NOT CHOOSE TO SHAPE ITS
COURSE ACCORDINGLY.  IT TURNED OVER THE MONEY TO MARTIN AS TOBIN'S
REPRESENTATIVE, THUS DISCHARGING ITS INDEBTEDNESS AS EFFECTIVELY AS IF
PAYMENT HAD BEEN MADE DIRECTLY TO THE PRINCIPAL.  MCKNIGHT V. UNITED
STATES, 98 U.S. 179.  THE CASE IS TO BE VIEWED AS IF TOBIN HAD RECEIVED
THE WARRANT, HAD PUT THE PROCEEDS IN HIS BANK, AND HAD PAID THEM
AFTERWARDS TO MARTIN.  WILL MARTIN BE ALLOWED TO KEEP THEM IN THE FACE
OF HIS KNOWLEDGE OF THE EARLIER ASSIGNMENT TO THE SURETY AND OF THE
PROMISE THAT NO ASSIGNMENT WOULD BE MADE TO ANYONE ELSE? 

THE PROVISIONS OF THE STATUTE MAKING VOID AN ASSIGNMENT OR POWER OF
ATTORNEY BY A GOVERNMENT CONTRACTOR ARE FOR THE PROTECTION OF THE
GOVERNMENT.  HOBBS V. MCLEAN, 117 U.S. 567, 576; MCGOWAN V. PARISH, 237
U.S. 285, 294, 295.  IN THE ABSENCE OF SUCH A RULE, THE GOVERNMENT
WOULD BE IN DANGER OF BECOMING EMBROILED IN CONFLICTING CLAIMS, WITH
DELAY AND EMBARRASSMENT AND THE CHANCE OF MULTIPLE LIABILITY.  HOBBS V.
MCLEAN, SUPRA.  BUT AS APPLIED TO THE FUND IN CONTROVERSY, THAT PERIL
IS NOW PAST.  THE FUND IS IN COURT TO BE DISTRIBUTED TO RIVAL
CLAIMANTS, WITH THE GOVERNMENT DISCHARGED IRRESPECTIVE OF THE OUTCOME. 
THE VERY FACT THAT AN ASSIGNMENT IS PERMITTED EVEN AS BETWEEN THE
CONTRACTOR AND THE GOVERNMENT ITSELF WHEN THE WARRANT IS OUTSTANDING,
IF THE TRANSFER BE EXECUTED WITH PRESCRIBED FORMALITIES, IS SIGNIFICANT
THAT THE GOVERNMENT IS NOT CONCERNED TO REGULATE THE EQUITIES OF
CLAIMANTS GROWING OUT OF IRREGULAR ASSIGNMENTS WHEN COLLECTION IS
COMPLETE AND LIABILITY IS ENDED.  THE PURPOSE OF THE STATUTE "WAS NOT
TO DICTATE TO THE CONTRACTOR WHAT HE SHOULD DO WITH THE MONEY RECEIVED
ON HIS CONTRACT AFTER THE CONTRACT HAD BEEN PERFORMED."  HOBBS V.
MCLEAN, SUPRA.  A TRANSFER OF A WARRANT HAS NEED TO BE ACCOMPANIED BY
SAFEGUARDS LEST THE ASSIGNOR MAY AVOID IT AFTERWARDS FOR FORGERY OR
FRAUD.  A TRANSFER OF THE FUND AFTER PAYMENT IS PERFECTED IS OF NO
CONCERN TO ANY ONE EXCEPT THE PARTIES TO THE TRANSACTION, AND THIS
QUITE IRRESPECTIVE OF THE TIME OF THE ASSIGNMENT OR THE MANNER OF ITS
MAKING. 

IF THE GOVERNMENT HAS ANY INTEREST IN THE OUTCOME OF THIS CONTROVERSY
IT IS IN SUSTAINING THE ASSIGNMENT TO THE SURETY RATHER THAN DESTROYING
IT.  THE CONTRACTOR UNDERTOOK THAT MATERIALMEN WOULD RECEIVE THEIR
MONEY PROMPTLY WHILE THE WORK WAS GOING ON.  IN FAILING TO PAY THEM, HE
VIOLATED A DUTY TO THEM, BUT A DUTY ALSO TO THE GOVERNMENT, FOR THE
DEFAULT WAS A BREACH OF THE CONDITION OF THE BOND.  IF THE ASSIGNMENT
TO THE SURETY CREATES A LIEN UPON THE FUND, THE CONTRACTOR WILL BE
COMPELLED TO FULFILL THE DUTY THUS ASSUMED.  A DIFFERENT QUESTION WOULD
BE PRESENT IF THE SURETY WERE SEEKING TO KEEP THE MONEY FOR ITSELF. 
CF. AMERICAN SURETY CO. V. WESTINGHOUSE ELECTRIC CO., SUPRA; JENKINS V.
NATIONAL SURETY CO., 277 U.S. 258, 266.  THERE IS NO SUCH EFFORT HERE. 
ON THE CONTRARY, THE SURETY, CLAIMING NOTHING FOR ITSELF, IS DEVOTING
THE FULL PROCEEDS OF THE ASSIGNMENT TO THE SATISFACTION OF THE
LIABILITIES COVERED BY THE BOND.  HAS THE ASSIGNMENT BEEN SO
OBLITERATED THROUGH THE CONDEMNATION OF THE STATUTE THAT WHEN USED BY
THE SURETY IN AID OF SUCH A PURPOSE IT DOES NOT GENERATE AN EQUITY
WORTHY OF RECOGNITION? 

THE ADVOCATES OF LITERALISM FIND COLOR OF SUPPORT IN A LINE OF
DECISIONS MADE IN VERY DIFFERENT CIRCUMSTANCES FROM THESE, BUT TENDING
NONE THE LESS TO A STRICT CONSTRUCTION OF THE STATUTE.  NATIONAL BANK
OF COMMERCE V. DOWNIE, 218 U.S. 345; NUTT V. KNUT, 200 U.S. 12;
SPOFFORD V. KIRK, 97 U.S. 484; UNITED STATES V. GILLIS, 95 U.S. 407. 
WE DO NOT PAUSE TO INQUIRE WITH REFERENCE TO ALL THE CASES WHETHER THE
NECESSITIES OF THE JUDGMENT WERE AS BROAD AS THE WORDS OF THE OPINION. 
THUS, IN NATIONAL BANK OF COMMERCE V. DOWNIE, SUPRA, TO GIVE A SINGLE
ILLUSTRATION, WHERE THE CONTROVERSY WAS BETWEEN THE TRUSTEE IN
BANKRUPTCY OF THE CONTRACTOR AND PRIOR ASSIGNEES, THE CLAIMS AGAINST
THE GOVERNMENT WHICH WERE THE SUBJECT OF THE ASSIGNMENT HAD NEVER BEEN
ALLOWED, MUCH LESS COLLECTED, THOUGH THE DECISION CANNOT BE SAID TO
HAVE BEEN PUT ON THAT GROUND.  ANOTHER LINE OF CASES EXHIBIT AN
OPPOSING TENDENCY.  LAY V. LAY, 248 U.S. 24; PORTUGUESE-AMERICAN BANK
V. WELLES, 242 U.S. 7, 11, 12; MCGOWAN V. PARISH, SUPRA; FREEDMAN'S
SAVING & T. CO. V. SHEPHERD, 127 U.S. 494, 506; HOBBS V. MCLEAN, SUPRA;
BAILEY V. UNITED STATES, 109 U.S. 432, 439; GOODMAN V. NIBLACK, 102
U.S. 556, 559; MCKNIGHT V. UNITED STATES, SUPRA; ERWIN V. UNITED
STATES, 97 U.S. 392.  CF. YORK V. CONDE, 147 N.Y. 486; 42 N.E. 193,
DISMISSED 168 U.S. 642.  THESE CASES TEACH US THAT THE STATUTE MUST BE
INTERPRETED IN THE LIGHT OF ITS PURPOSE TO GIVE PROTECTION TO THE
GOVERNMENT.  AFTER PAYMENTS HAVE BEEN COLLECTED AND ARE IN THE HANDS OF
THE CONTRACTOR OR SUBSEQUENT PAYEES WITH NOTICE, ASSIGNMENTS MAY BE
HEEDED, AT ALL EVENTS IN EQUITY, IF THEY WILL NOT FRUSTRATE THE ENDS TO
WHICH THE PROHIBITION WAS DIRECTED.  SEE LAY V. LAY, SUPRA, AFF'G 118
MISS.  549; 79 SO. 291.  TO THE EXTENT THAT THE TWO LINES OF CASES ARE
IN CONFLICT, THE SECOND MUST BE HELD TO BE SUPPORTED BY THE BETTER
REASON.  MANY AN ANALOGY FROM FIELDS UNCOVERED BY THE STATUTE
REINFORCES THAT CONCLUSION.  AN ASSIGNMENT INEFFECTIVE AT LAW MAY NONE
THE LESS AMOUNT TO THE CREATION OF AN EQUITABLE LIEN WHEN THE SUBJECT
MATTER OF THE ASSIGNMENT HAS BEEN REDUCED TO POSSESSION AND IS IN THE
HANDS OF THE ASSIGNOR OR OF PERSONS CLAIMING UNDER HIM WITH NOTICE. 
WESTERN UNION TELEGRAPH CO. V. SHEPARD, 169 N.Y. 170; 62 N.E. 154;
WALKER V. BROWN, 165 U.S. 654; FOURTH STREET BANK V. YARDLEY, 165 U.S.
634; KETCHUM V. ST. LOUIS, 101 U.S. 306.  ALL THIS IS FAMILIAR LAW.  NO
REASON IS DISCOVERABLE IN THE POLICY OF THE STATUTE WHY THE ANALOGY
SHOULD BE REJECTED IN ITS APPLICATION TO THE CASE AT HAND.  FAR FROM
DEFEATING OR PREJUDICING THE INTERESTS OF THE GOVERNMENT, THE
RECOGNITION OF THE EQUITIES GROWING OUT OF THE RELATION BETWEEN THE
CONTRACTOR AND THE SURETY WILL TEND, AS ALREADY HAS BEEN SUGGESTED, TO
MAKE THOSE INTERESTS PREVAIL.  CF. EQUITABLE SURETY CO. V. MCMILLAN,
234 U.S. 448, 456.  IT WOULD BE A STRANGE CONSTRUCTION OF THE STATUTE
THAT WOULD MAKE IT NECESSARY FOR THE GOVERNMENT TO DECLARE THE EQUITIES
ILLUSORY WHEN THEY SERVE ITS OWN GOOD. 

IN WHAT HAS BEEN WRITTEN WE HAVE ASSUMED THAT THE FAILURE TO PAY
MATERIALMEN WAS A DEFAULT OF SUCH A NATURE AS TO IMPOSE A DUTY ON THE
CONTRACTOR TO TURN OVER THE PAYMENTS TO THE SURETY UPON APPROPRIATE
DEMAND.  THERE IS ARGUMENT TO THE CONTRARY.  ACCORDING TO THAT ARGUMENT
THE MONEYS WERE TO BE ASSIGNED IN THE EVENT OF DEFAULT IN THE
PERFORMANCE OF THE CONTRACT BETWEEN THE CONTRACTOR AND THE GOVERNMENT,
AND NOT UPON THE FAILURE TO PAY PERSONS OTHER THAN THE GOVERNMENT WHO
HAD CLAIMS AGAINST THE CONTRACTOR FOR MATERIALS OR LABOR.  BUT THE
STATUTE DIRECTS THAT A BOND FOR THE PROMPT PAYMENT OF MATERIALMEN AND
LABORERS SHALL BE EXECUTED BY THE CONTRACTOR BEFORE THE COMMENCEMENT OF
THE WORK.  NOT ONLY THAT, BUT THE CONTRACT WITH THE GOVERNMENT, WHICH
WAS DRAWN IN THE STANDARD FORM, IS A CONFIRMATION AND ADOPTION OF THE
STATUTORY DUTY.  THE TERMS OF THE BOND ARE READ INTO THE CONTRACT, AND
THERE IS DEFAULT UNDER THE CONTRACT WHEN THERE IS DEFAULT UNDER THE
BOND. 

WE CONCLUDE THAT MARTIN'S INTEREST IN THE FUND WAS CORRECTLY HELD TO
BE SUBORDINATE TO THE INTERESTS OF OTHER CLAIMANTS.  WITHOUT DENYING
THE POSSIBILITY OF ARRIVING AT THE SAME CONCLUSION THROUGH OTHER
AVENUES OF APPROACH, WE FOLLOW THE PATHWAY THAT HAS BEEN MARKED IN THIS
OPINION. 

THE DECREE SHOULD BE AFFIRMED. 
..END :





















BROWN V. O'KEEFE, 300 U.S. 598 


NO. 575.  ARGUED MARCH 8, 1937.  - DECIDED MARCH 29, 1937.  - 85 F.(2D)
885, REVERSED. 


1.  SHARES OF NATIONAL BANK STOCK, SCHEDULED BY THEIR REGISTERED OWNER
IN HIS VOLUNTARY PETITION IN BANKRUPTCY, WERE DISCLAIMED BY THE TRUSTEE
AS BURDENSOME ASSETS, BY DIRECTION OF THE COURT.  HELD THAT
NOTWITHSTANDING THE ADJUDICATION OF BANKRUPTCY, THEIR OWNERSHIP
REMAINED IN THE BANKRUPT, CONTINUOUSLY, OR BY RELATION, FROM THE DATE
OF FILING THE PETITION.  P. 602. 

2.  THE STATUTORY LIABILITY OF A SHAREHOLDER IN A NATIONAL BANK IN
COURSE OF VOLUNTARY LIQUIDATION (12 U.S.C. 181, 182), IS ENFORCIBLE BY
A CREDITOR OR CREDITORS SUING FOR THEMSELVES AND FOR OTHERS SIMILARLY
SITUATED.  P. 603. 

3.  AN ASSESSMENT BY THE COMPTROLLER IS NOT A CONDITION PRECEDENT, IN
CASES OF VOLUNTARY LIQUIDATION, TO PROCEEDINGS BY CREDITORS.  P. 604. 

4.  CREDITORS OF A NATIONAL BANK WHICH IS IN COURSE OF VOLUNTARY
LIQUIDATION AND KNOWN TO BE INSOLVENT, MAY ENFORCE THE STATUTORY
LIABILITY OF A BANKRUPT SHAREHOLDER BY FILING THEIR CLAIMS IN THE COURT
OF BANKRUPTCY.  THAT COURT HAS AUTHORITY TO LIQUIDATE, OR TO DIRECT THE
LIQUIDATION OF, SUCH CLAIMS, WHEN, AS IN THIS CASE, THEIR AMOUNT IS
SUSCEPTIBLE OF PROMPT ASCERTAINMENT.  P. 604. 

5.  THE LIABILITY OF THE SHAREHOLDER OF A NATIONAL BANK TO CREDITORS,
THOUGH STATUTORY, IS A LIABILITY UPON QUASI OR IMPLIED CONTRACT, IN
KIND PROVABLE AND DISCHARGEABLE IN BANKRUPTCY.  P. 606. 

BROWN V. O'KEEFE, RECEIVER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 299 U.S. 539, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST A SHAREHOLDER OF A NATIONAL BANK IN A SUIT BY THE RECEIVER OF
THE BANK BASED ON A COMPTROLLER ASSESSMENT.  THE SHAREHOLDER INTERPOSED
A DISCHARGE IN BANKRUPTCY. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

IN A SUIT FOR THE ENFORCEMENT OF THE PERSONAL LIABILITY IMPOSED BY
THE STATUTE THEN IN FORCE UPON SHAREHOLDERS IN NATIONAL BANKS,
PETITIONER, THE DEFENDANT IN THE SUIT, DISCLAIMED LIABILITY, FIRST,
UPON THE GROUND THAT BEFORE THE ASSESSMENT OF THE SHAREHOLDERS HIS
OWNERSHIP OF THE SHARES WAS DIVESTED BY THE FILING OF A BANKRUPTCY
PETITION AND THE APPOINTMENT OF A TRUSTEE THEREUNDER, AND, SECOND, UPON
THE GROUND THAT IF OWNERSHIP CONTINUED, LIABILITY WAS EXTINGUISHED BY
VIRTUE OF A DISCHARGE IN BANKRUPTCY.  WHETHER THE DEFENSE SHOULD HAVE
PREVAILED IS NOW TO BE DETERMINED. 

PETITIONER WAS ADJUDICATED A BANKRUPT ON APRIL 21, 1933, AND ON JULY
31, 1933, WAS GRANTED A DISCHARGE.  AT THE FILING OF THE BANKRUPTCY
PETITION HE WAS THE OWNER OF TEN SHARES OF STOCK OF THE UNION NATIONAL
BANK OF ATLANTIC CITY, NEW JERSEY.  SINCE SEPTEMBER 30, 1931, THE UNION
BANK HAD BEEN IN COURSE OF VOLUNTARY LIQUIDATION (UNDER R.S. SECS. 5220
AND 5221; 12 U.S.C. SECS. 181, 182), THE ATLANTIC CITY NATIONAL BANK
BEING THE LIQUIDATING AGENT.  THE TERMS OF LIQUIDATION ARE DEFINED BY
AN AGREEMENT.  UNION SOLD TO ATLANTIC ALL ITS ASSETS OF EVERY KIND FOR
$1,686,977.63, WHICH THE BUYER WAS TO PAY THROUGH AN ASSUMPTION OF THE
SELLER'S LIABILITIES.  THE SELLER COVENANTED THAT THE ASSETS HAD A
VALUE EQUAL TO THE PRICE, AND BOUND ITSELF TO PAY THE DEFICIENCY, IF
ANY SHOULD ENSUE.  TO THIS THERE WAS TO BE AN EXCEPTION IN THE CASE OF
THE BANKING HOUSE AND FIXTURES, WHICH WERE TO BE TAKEN AT A VALUATION
OF $353,000, IRRESPECTIVE OF THE OUTCOME.  THE AMOUNT OF THE SELLER'S
LIABILITY WAS TO BE FIXED AT THE EXPIRATION OF TWO YEARS (I.E. ON
SEPTEMBER 30, 1933), AT WHICH TIME ALL NOTES THEN UNCOLLECTED WERE TO
BE RECKONED AS LOSSES.  BEFORE THAT TIME ARRIVED, THE LIQUIDATING BANK
MET WITH TROUBLES OF ITS OWN.  IN JANUARY 1933, IT WAS DECLARED TO BE
INSOLVENT BY THE COMPTROLLER OF THE CURRENCY, AND A RECEIVER WAS
APPOINTED TO WIND UP ITS AFFAIRS.  IN DECEMBER, 1933, UNION ALSO WAS
DECLARED INSOLVENT, AND THE RECEIVER THEN APPOINTED IS THE RESPONDENT
IN THIS COURT.  VALUING THE UNCOLLECTED ASSETS, THE COMPTROLLER FOUND
IT NECESSARY TO ENFORCE THE PERSONAL LIABILITY LAID UPON THE
SHAREHOLDERS (R.S. SEC. 5151; 12 U.S.C. SEC. 63; 38 STAT. 273; 12
U.S.C., SEC. 64), AND BY AN ORDER MADE AND FILED ON JANUARY 8, 1934,
ASSESSED THEM TO THE AMOUNT OF THE PAR VALUE OF THE SHARES.  THE
RECEIVER HAS SUED THE PETITIONER AS ONE OF THE SHAREHOLDERS OF UNION TO
RECOVER THAT ASSESSMENT. 

IN DEFENSE OF THE SUIT PETITIONER ASSERTS, AS WE HAVE SEEN, THAT THE
OWNERSHIP OF THE STOCK WAS DIVESTED BY THE BANKRUPTCY, AND ALSO THAT
LIABILITY WAS BARRED, IF OWNERSHIP REMAINED.  TO ESTIMATE CORRECTLY THE
WORTH OF THESE DEFENSES WE MUST HAVE SOME OTHER FACTS BEFORE US.  THE
RECORD SHOWS THAT ON OCTOBER 27, 1933, BY ORDER OF A REFEREE, THE
TRUSTEE IN BANKRUPTCY WAS "AUTHORIZED AND DIRECTED TO ABANDON ALL TITLE
TO AND TO DISCLAIM ALL THE INTEREST OF THE BANKRUPT IN" THE TEN SHARES
OF UNION NATIONAL BANK, NOW THE SUBJECT OF THIS SUIT.  THERE IS NO
SUGGESTION THAT IN THE INTERVAL BETWEEN ADJUDICATION AND DISCLAIMER,
THE TRUSTEE HAD DONE ANYTHING BETOKENING ACCEPTANCE.  THE RECORD ALSO
SHOWS, IN THE FORM OF AN AFFIDAVIT ACCEPTED BY THE COURT, THAT THE
BANKRUPT IN HIS LIST OF LIABILITIES INCLUDED THE LIABILITY TO
ASSESSMENT ON HIS SHARES OF UNION STOCK, AND THAT IN HIS SCHEDULE OF
CREDITORS HE INCLUDED UNION AND ATLANTIC AS WELL AS THE RECEIVER FOR
ATLANTIC, THEN IN CHARGE OF ITS AFFAIRS.  THE SAME AFFIDAVIT TELLS US
THAT PROMPTLY UPON THE TRANSFER OF THE ASSETS IN SEPTEMBER, 1931, THE
LIABILITIES ASSUMED BY ATLANTIC WERE PAID TO THE LAST DOLLAR; THAT AT
THE TIME OF THE DEFENDANT'S BANKRUPTCY UNION HAD NO DEBTS OR
LIABILITIES EXCEPT THE DEBT OR LIABILITY TO THE LIQUIDATING AGENT; AND
THAT EVEN BEFORE THE BANKRUPTCY THE FACT HAD BEEN DEFINITELY
ASCERTAINED THAT THE LIQUIDATION OF THE UNION ASSETS WOULD RESULT IN A
DEFICIENCY WHICH WOULD REQUIRE AN ASSESSMENT OF THE STOCKHOLDERS UP TO
THE MAXIMUM AMOUNT OF THE PAR VALUE OF THE SHARES.  FN1  THE ESTIMATE
WAS NOT IMPRACTICABLE, FOR ABOUT A YEAR AND SEVEN MONTHS HAD PASSED
SINCE LIQUIDATION HAD BEGUN, AND ONLY ABOUT FIVE MONTHS WERE LEFT
BEFORE IT WOULD BE DEEMED TO BE COMPLETE. 

UPON THESE FACTS, ESTABLISHED BY THE PLEADINGS AND SUPPORTING
AFFIDAVITS, THE RECEIVER MOVED FOR JUDGMENT.  THE DISTRICT COURT HELD
THE DEFENSES INSUFFICIENT, AND GAVE JUDGMENT AGAINST THE DEFENDANT FOR
THE AMOUNT OF THE ASSESSMENT.  16 F.SUPP.  494.  THERE WAS AN APPEAL TO
THE COURT OF APPEALS FOR THE THIRD CIRCUIT WHERE THE JUDGMENT WAS
AFFIRMED.  85 F.(2D) 885.  AN IMPORTANT QUESTION OF BANKRUPTCY LAW
BEING INVOLVED, A WRIT OF CERTIORARI ISSUED FROM THIS COURT. 

WE DISMISS WITH A FEW WORDS THE PETITIONER'S CONTENTION THAT AT THE
MOMENT OF THE BANKRUPTCY HE LOST THE TITLE TO THE SHARES, AND BECAME
RELIEVED THEREBY OF THE LIABILITIES ATTENDANT UPON OWNERSHIP, THOUGH
HIS NAME WAS LEFT CONTINUOUSLY ON THE STOCK BOOK OF THE BANK.  CF.
RICHMOND V. IRONS, 121 U.S. 27, 58; MATTESON V. DENT, 176 U.S. 521. 
WHATEVER TITLE OR INCHOATE INTEREST MAY HAVE PASSED TO THE TRUSTEE WAS
EXTINGUISHED BY RELATION AS OF THE FILING OF THE PETITION WHEN THE
TRUSTEE INFORMED THE COURT THAT THE SHARES WERE BURDENSOME ASSETS, AND
WAS DIRECTED BY THE COURT TO ABANDON AND DISCLAIM THEM.  AMERICAN FILE
CO. V. GARRETT, 110 U.S. 288, 295; SPARHAWK V. YERKES, 142 U.S. 1, 13;
SESSIONS V. ROMADKA, 145 U.S. 29, 39; DUSHANE V. BEALL, 161 U.S. 513;
FIRST NATIONAL BANK V. LASATER, 196 U.S. 115.  IN SUCH CASE "THE TITLE
STANDS AS IF NO ASSIGNMENT HAD BEEN MADE."  SESSIONS V. ROMADKA, SUPRA,
P. 52.  CF. MILLS NOVELTY CO. V. MONARCH TOOL & MFG. CO., 49 F.(2D) 28,
31; IN RE FRAZIN, 183 FED. 28, 32; KIRSTEIN HOLDING CO. V. BANGOR
VERITAS, INC., 131 ME. 421, 424; 163 ATL. 655.  A PRECISE ANALOGY IS
FOUND IN THE LAW OF GIFTS AND LEGACIES.  ACCEPTANCE IS PRESUMED, BUT
REJECTION LEAVES THE TITLE BY RELATION AS IF THE GIFT HAD NOT BEEN
MADE.  SEE ALBANY HOSPITAL V. ALBANY GUARDIAN SOCIETY, 214 N.Y. 435,
441, 442; 108 N.E. 812, COLLECTING MANY CASES.  FOR THE PURPOSES OF THE
CASE AT HAND THE RESULT WILL BE THE SAME WHETHER TITLE IS CONCEIVED OF
AS REMAINING IN THE BANKRUPT OR AS AFTERWARDS REVERTING.  ALBANY
HOSPITAL V. ALBANY GUARDIAN SOCIETY, SUPRA, PP. 443, 445.  IN EITHER
VIEW IT IS HIS AFTER DISCLAIMER BY THE TRUSTEE, WHEREVER IT MAY HAVE
BEEN WHILE ACCEPTANCE WAS UNCERTAIN.  AMERICAN FILE CO. V. GARRETT,
SUPRA. 

THE PETITIONER BEING HELD TO BE THE OWNER OF THE SHARES, WE PASS TO
THE CLOSER QUESTION WHETHER THE EFFECT OF THE DISCHARGE IN BANKRUPTCY
WAS TO EXTINGUISH THE PERSONAL LIABILITY THAT WAS ATTACHED TO HIS
OWNERSHIP AS A STATUTORY INCIDENT. 

LIABILITIES ARE NOT DISCHARGED IN BANKRUPTCY UNLESS CLAIMS THEREON
EXIST IN FAVOR OF CLAIMANTS WHOSE IDENTITY IS DETERMINABLE AT THE DATE
OF THE PETITION.  ZAVELO V. REEVES, 227 U.S. 625, 631; EVERETT V.
JUDSON, 228 U.S. 474, 479.  IF THE UNION BANK AT THAT DATE HAD BEEN A
GOING CONCERN, THE POSSIBILITY THAT IT MIGHT LATER BECOME INSOLVENT OR
RESORT TO LIQUIDATION, WOULD NOT HAVE FURNISHED AN OCCASION FOR
STRIPPING THE SHARES OF THEIR STATUTORY INCIDENTS BY THE DEVICE OF A
DISCHARGE IN BANKRUPTCY.  IN SUCH A SITUATION THERE WOULD BE NO CLAIM
TO BE PROVED AND NO ONE CAPABLE OF PROVING IT.  BUT AT THE DATE OF THIS
PETITION, THE UNION BANK WAS NOT A GOING CONCERN WITH THE LIABILITY OF
SHAREHOLDERS A LATENT POSSIBILITY.  IT WAS IN COURSE OF LIQUIDATION BY
A VOLUNTARY LIQUIDATOR.  NOT ONLY WAS IT IN LIQUIDATION, BUT ACCORDING
TO THE EVIDENCE IT WAS ALREADY KNOWN TO BE INSOLVENT.  LIQUIDATION
COUPLED WITH INSOLVENCY IS THE CRITICAL EVENT WHICH IS CAPABLE OF
TRANSFORMING A POTENTIAL LIABILITY INTO ONE PRESENTLY ENFORCIBLE, AS
SOON AS A QUALIFIED CLAIMANT APPEARS UPON THE SCENE.  THE METHOD OF
WINDING UP DETERMINES WHO THE SPOKESMAN FOR THE CLAIM SHALL BE.  IF A
BANK IS IN COURSE OF LIQUIDATION BY THE COMPTROLLER OF THE CURRENCY,
THE PERSONAL LIABILITY OF STOCKHOLDERS IS ENFORCIBLE UPON THE DIRECTION
OF THE COMPTROLLER, AT THE SUIT OF A RECEIVER.  ACT OF JUNE 30, 1876,
C. 156, SEC. 1, 19 STAT. 63; 12 U.S.C. SEC. 191.  CF. 12 U.S.C. SECS.
63, 64.  IF THE BANK IS IN COURSE OF LIQUIDATION BY A VOLUNTARY
LIQUIDATOR, THE LIABILITY IS ENFORCIBLE BY A CREDITOR OR CREDITORS,
SUING FOR THEMSELVES AND FOR OTHERS SIMILARLY SITUATED.  ACT OF JUNE
30, 1876, C. 156, SEC. 2, 19 STAT. 63; 12 U.S.C. SEC. 65.  CF. 12
U.S.C. SEC. 181.  WE HAVE NO OCCASION TO INQUIRE WHETHER IN THE ABSENCE
OF AN ASSESSMENT BY THE COMPTROLLER OF THE CURRENCY THE STATUTORY
LIABILITY MAY BE ENFORCED BY A RECEIVER THROUGH THE MEDIUM OF A CLAIM
IN BANKRUPTCY.  CF. ERICKSON V. RICHARDSON, 86 F.(2D) 963.  THAT
QUESTION IS NOT HERE.  AN ASSESSMENT BY THE COMPTROLLER, EVEN IF A
NECESSARY PRELIMINARY TO A SUIT BY A RECEIVER WHEN A BANK IS IN THE
COURSE OF INVOLUNTARY LIQUIDATION, IS NOT A CONDITION PRECEDENT, IN
CASES OF VOLUNTARY LIQUIDATION, TO PROCEEDINGS IN BEHALF OF CREDITORS. 
NO ADEQUATE REASON OCCURS TO US, AND NONE, WE THINK, IS STATED IN THE
ARGUMENTS OF COUNSEL, WHY A COURT OF BANKRUPTCY IS THEN INCOMPETENT TO
LIQUIDATE THE AMOUNT OF THE INDEBTEDNESS EFFECTIVELY AND SPEEDILY, AND
GIVE RELIEF ACCORDINGLY.  CF. CUNNINGHAM V. COMMISSIONER OF BANKS, 249
MASS. 401, 426; 144 N.E. 447; UNITED STATES V. ILLINOIS SURETY CO., 226
FED. 653, 662-663. 

IN SAYING THIS WE ARE NOT UNMINDFUL THAT A COMPREHENSIVE SUIT IN
EQUITY IS COMMONLY THE PROPER REMEDY AGAINST SHAREHOLDERS WHERE
INSOLVENCY BECOMES MANIFEST IN VOLUNTARY LIQUIDATION.  12 U.S.C. SEC.
65.  THE REMEDY DOES NOT EXCLUDE THE PRESENTATION OF A PROOF OF CLAIM
IN BANKRUPTCY, THE AMOUNT TO BE LIQUIDATED UNDER THE DIRECTION OF THE
COURT BY BILL IN EQUITY OR OTHERWISE.  CUNNINGHAM V. COMMISSIONER OF
BANKS, SUPRA; UNITED STATES V. ILLINOIS SURETY CO., SUPRA; KING V.
POMEROY, 121 FED. 287; IRONS V. MANUFACTURER'S NAT. BANK, 17 FED. 308,
314; 27 FED. 591.  CF. HIGHTOWER V. AMERICAN NAT. BANK, 263 U.S. 351;
WYMAN V. WALLACE, 201 U.S. 230.  BY THE MANDATE OF THE STATUTE
(BANKRUPTCY ACT SEC. 63B; 11 U.S.C. SEC. 103B):  "UNLIQUIDATED CLAIMS
AGAINST THE BANKRUPT MAY, PURSUANT TO APPLICATION TO THE COURT, BE
LIQUIDATED IN SUCH MANNER AS IT SHALL DIRECT, AND MAY THEREAFTER BE
PROVED AND ALLOWED AGAINST THE ESTATE."  THE RESULT IS TO INVEST THE
COURT WITH A DISCRETIONARY POWER THAT CAN BE FITTED TO THE NEEDS OF
VARYING SITUATIONS.  MAYNARD V. ELLIOTT, 283 U.S. 273.  CF. FOUST V.
MUNSON S. S. LINES, 299 U.S. 77, 83.  A HOLDING THAT A CREDITOR IS
DISABLED FROM MAKING PROOF IN BANKRUPTCY TILL A SUIT IN EQUITY AGAINST
THE SHAREHOLDERS HAS BEEN BROUGHT TO A DECREE WOULD HAVE UNFORTUNATE
RESULTS.  TODAY IT IS THE BANKRUPT WHO IS ASSERTING THE PROVABLE
QUALITY OF SUCH A CLAIM IN ORDER TO PRESERVE FOR HIMSELF THE BENEFIT OF
A DISCHARGE.  TOMORROW IT MAY BE A CREDITOR WHO UNLESS HE IS GIVEN THAT
OPPORTUNITY MAY LOSE HIS DIVIDEND FROM THE ASSETS AND FIND HIS SUIT IN
EQUITY ILLUSORY.  IN THAT PREDICAMENT THE MALLEABLE PROCESSES OF COURTS
OF BANKRUPTCY GIVE ASSURANCE OF A REMEDY THAT CAN BE MOULDED AND
ADAPTED TO THE NEEDS OF THE OCCASION.  CUNNINGHAM V. COMMISSIONER OF
BANKS, SUPRA. 

LIQUIDATION BEING POSSIBLE, THE CLAIM IS NOT DEFEATED THOUGH THERE
WAS UNCERTAINTY AS TO ITS AMOUNT AT THE FILING OF THE PETITION. 
MAYNARD V. ELLIOTT, SUPRA.  YET EVEN THE AMOUNT WAS CERTAIN, IF WE ARE
TO CREDIT THE DEFENDANT'S STATEMENT.  BY THIS IT APPEARS THAT LONG
BEFORE THE BANKRUPTCY THE NECESSITY FOR AN ASSESSMENT TO THE AMOUNT OF
THE PAR VALUE OF THE SHARES HAD BECOME OBVIOUS TO THE LIQUIDATING AGENT
AND INDEED TO ALL CONCERNED.  THE FACTS ARE FAR REMOVED FROM THOSE IN
MILLER V. IRVING TRUST CO., 296 U.S. 256, WHERE THE CLAIM HAD ITS
ORIGIN IN THE COVENANTS OF A LEASE.  FOR HISTORICAL CAUSES SUCH
COVENANTS ARE SUI GENERIS (MANHATTAN PROPERTIES V. IRVING TRUST CO.,
291 U.S. 320; GARDINER V. BUTLER & CO., 245 U.S. 603), BUT THE ANALOGY
IS STILL IMPERFECT IF THAT DISTINCTION BE IGNORED.  THERE THE ONLY
CAUSE OF ACTION BELONGING TO THE CLAIMANT WAS FOR A DEFICIENCY THAT WAS
DEPENDENT UPON UNPREDICTABLE EVENTS.  FN2  HERE THE PROGRESS OF THE
LIQUIDATION HAD ALREADY BROUGHT ABOUT A DEFICIENCY TOO GREAT TO BE
CORRECTED BY ANY UNEXPECTED WINDFALL.  THIS AT LEAST IS THE SITUATION
AS THE PETITIONER DESCRIBES IT.  WHAT INFUSION OF CONTINGENCY WILL
VITIATE A CLAIM IS AT BEST A QUESTION OF DEGREE (MAYNARD V. ELLIOTT,
SUPRA, P. 278), THOUGH THERE IS A LEANING TOWARD ALLOWANCE IN AID OF
THE PURPOSE OF THE STATUTE TO RELIEVE THE HONEST DEBTOR.  WILLIAMS V.
U.S. FIDELITY & G. CO., 236 U.S. 549, 554-555; CENTRAL TRUST CO. V.
CHICAGO AUDITORIUM ASSN., 240 U.S. 581, 591.  TO ALL THIS WE ADD THAT
THE UNCERTAINTY, IF THERE WAS ANY, AS TO THE EXACT AMOUNT OF THE
ASSESSMENT WAS TO BE DISPELLED AT THE FARTHEST BY SEPTEMBER 30, 1933,
LESS THAN SIX MONTHS LATER, FOR OBLIGATIONS THEN UNPAID WERE TO BE
CLASSIFIED AS LOSSES.  CF. BANKRUPTCY ACT, SEC. 57N; 11 U.S.C. SEC.
93N.  UPON THE FACTS OF THIS CASE THE IMPEDIMENTS TO A PROMPT
ASCERTAINMENT OF THE LIABILITY OF SHAREHOLDERS WERE UNSUBSTANTIAL, IF
NOT IMAGINARY.    OTHER OBJECTIONS ARE MADE TO THE OPERATION OF THE
DISCHARGE, BUT THEY NEED NOT DETAIN US LONG. 

THERE IS ARGUMENT THAT A CLAIM AGAINST A STOCKHOLDER IS NOT PROVABLE
IN BANKRUPTCY FOR THE REASON THAT IT IS FOUNDED ON A STATUTORY
LIABILITY NOT SUBJECT TO DISCHARGE.  BANKRUPTCY ACT SEC. 63; 11 U.S.C.
SEC. 103.  TRUE INDEED IT IS THAT THE LIABILITY IS CREATED BY A
STATUTE, AND NOT SOLELY BY AGREEMENT.  MCCLAINE V. RANKIN, 197 U.S.
154, 159, 161; CHRISTOPHER V. NORVELL, 201 U.S. 216, 225, 226.  NO
DISCLAIMER BY THE STOCKHOLDER WOULD BE EFFECTIVE TO AVOID IT.  EVEN SO,
THE LIABILITY, CREATED THOUGH IT IS BY STATUTE, IS QUASI-CONTRACTUAL IN
ITS ORIGIN AND BASIS.  CHISHOLM V. GILMER, 299 U.S. 99, 102; SHRIVER V.
WOODBINE BANK, 285 U.S. 467, 477; COFFIN BROTHERS & CO. V. BENNETT, 277
U.S. 29, 31; BERNHEIMER V. CONVERSE, 206 U.S. 516, 529; CHRISTOPHER V.
NORVELL, SUPRA; MCCLAINE V. RANKIN, SUPRA, P. 159; MCDONALD V.
THOMPSON, 184 U.S. 71, 74.  CF. ERICKSON V. RICHARDSON, SUPRA.  IT IS
AN INCIDENT AFFIXED BY LAW TO THE CONTRACT OF MEMBERSHIP BETWEEN
SHAREHOLDER AND BANK.  IBID.  A LIABILITY UPON QUASI-CONTRACT IS ONE
UPON AN "IMPLIED CONTRACT," AND SO PROVABLE IN BANKRUPTCY (BANKRUPTCY
ACT SEC. 63(4); 11 U.S.C. SEC. 103(4); CRAWFORD V. BURKE, 195 U.S. 176;
TINDLE V. BIRKETT, 205 U.S. 183; DAVIS V. AETNA ACCEPTANCE CO., 293
U.S. 328, 331), IF THE OTHER CONDITIONS OF ALLOWANCE ARE FOUND TO BE
FULFILLED. 

FINALLY ARGUMENT IS POSSIBLE THAT THE DISCHARGE IS INEFFECTIVE
AGAINST THE CREDITORS OF THE BANK FOR THE REASON THAT ONLY A SINGLE
CREDITOR OF UNION WAS LISTED IN THE SCHEDULES.  THIS, HOWEVER, IS
UNIMPORTANT IF THE CREDITOR SO LISTED (THE LIQUIDATING AGENT) WAS IN
FACT THE ONLY CREDITOR, AS THE PETITIONER INSISTS IT WAS.  CF.
LONGFIELD V. MINNESOTA SAVINGS BANK, 95 MINN. 54; 103 N.W. 706.  IF IN
FACT THERE WERE OTHER CREDITORS WHOSE NAMES HAVE BEEN OMITTED, THE
BURDEN RESTS ON THE RESPONDENT TO MAKE PROOF OF SUCH OMISSION.  HILL V.
SMITH, 260 U.S. 592, 595.  THE CONCLUSION MAY WELL FOLLOW, IF THE
OMISSION SHALL BE PROVED, THAT AS TO ANY CREDITORS NOT LISTED THE
DISCHARGE IS WITHOUT EFFECT. 

WHETHER THE PETITIONER WILL BE ABLE TO MAKE GOOD THE ALLEGATIONS OF
HIS ANSWER, AMPLIFIED AND EXPLAINED BY THE SUPPORTING AFFIDAVITS, IS
NOT TO BE PREDICTED NOW.  ENOUGH FOR PRESENT PURPOSES THAT THERE ARE
ISSUES TO BE TRIED. 

THE DECREE SHOULD BE REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS IN ACCORD WITH THIS OPINION.  REVERSED. 

FN1  "AT THE TIME THAT I WAS ADJUDICATED A BANKRUPT AS AFORESAID IT
HAD BEEN DETERMINED AND FROM THEN UNTIL NOW IT HAS BEEN DEFINITELY
DETERMINED AND KNOWN THAT SAID UNION NATIONAL BANK WAS INSOLVENT.  SAID
UNION NATIONAL BANK WAS THROUGHOUT ALL OF THAT TIME AND EVER SINCE
SEPTEMBER 30, 1931, HAD BEEN CLOSED TO BUSINESS.  ALSO AT SAID TIME IT
HAD BEEN DETERMINED AND THROUGHOUT SAID PERIOD IT WAS DEFINITELY KNOWN
THAT THE ASSETS OF SAID UNION NATIONAL BANK WERE INSUFFICIENT IN VALUE
TO LIQUIDATE AT A SUM EQUAL TO THE VALUE PLACED UPON THEM BY SAID
AGREEMENT OF SEPTEMBER 30, 1931. 

"ALSO AT THE TIME THAT I WAS ADJUDICATED A BANKRUPT AS AFORESAID IT
HAD BEEN DETERMINED AND FROM THEN UNTIL NOW IT HAS BEEN DEFINITELY
DETERMINED AND KNOWN THAT AN ASSESSMENT AND REQUISITION UPON THE
SHAREHOLDERS OF SAID UNION NATIONAL BANK TO THE TOTAL PAR VALUE OF THE
AMOUNT OF STOCK OUTSTANDING WOULD BE NECESSARY TO PAY THE DEBTS AND
CLAIMS OF SAID BANK."  EXTRACTS FROM PETITIONER'S AFFIDAVIT. 

FN2  "UNDER THE CLAUSE IN QUESTION, IT WAS, AT THE TIME THE PETITION
IN BANKRUPTCY WAS FILED, UNCERTAIN, A MERE MATTER OF SPECULATION,
WHETHER ANY LIABILITY EVER WOULD ARISE UNDER IT."  MILLER V. IRVING
TRUST CO., 296 U.S. 256, 258. 
..END :






HIGHLAND FARMS DAIRY V. AGNEW, 300 U.S. 608 


NO. 573.  ARGUED MARCH 8, 9, 1937.  - DECIDED MARCH 29, 1937.  - 16
F.SUPP.  575, AFFIRMED. 


1.  THE VIRGINIA MILK AND CREAM ACT CREATED A COMMISSION WITH POWER TO
ESTABLISH MARKET AREAS, AND TO DETERMINE, AFTER HEARINGS, THE NEED FOR
REGULATION OF MILK AND CREAM PRICES WITHIN EACH AREA AND, IF SATISFIED
OF THE NEED, TO FIX PRICES ACCORDINGLY.  HELD THAT THE OBJECTION OF
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER HAS NO BASIS UNDER THE
FEDERAL CONSTITUTION, AND HAS BEEN DECIDED ADVERSELY AS TO THE STATE
CONSTITUTION BY THE HIGHEST COURT OF THE STATE.  P. 611. 

2.  HOW POWER SHALL BE DISTRIBUTED BY A STATE AMONG ITS GOVERNMENTAL
ORGANS IS COMMONLY, IF NOT ALWAYS, A QUESTION FOR THE STATE ITSELF.  P.
612. 

3.  THE FEDERAL GUARANTY TO THE STATES OF A REPUBLICAN FORM OF
GOVERNMENT, CONST., ART. IV, SEC. 4, IS NOT INVOLVED IN THIS CASE, AND,
IN ANY EVENT, IS AN OBLIGATION OF CONGRESS, NOT OF THE COURTS.  ID. 

4.  A JUDGMENT BY THE HIGHEST COURT OF A STATE AS TO THE MEANING AND
EFFECT OF ITS OWN CONSTITUTION IS DECISIVE AND CONTROLLING.  P. 613. 

5.  THE VALIDITY OF A PROVISION IN THE ABOVE MENTIONED STATUTE FOR
THE CANCELLATION OF THE PRICES ESTABLISHED FOR A MARKET IF CANCELLATION
IS REQUESTED BY A MAJORITY OF THE PRODUCERS AND DISTRIBUTORS IN THE
AREA AFFECTED, NEED NOT BE CONSIDERED, BECAUSE NO EXERCISE OF THE POWER
OF CANCELLATION HAS BEEN THREATENED.  P. 613. 

6.  A HOLDING OF INVALIDITY AS TO THIS PROVISION FOR CANCELLATION
WOULD NOT AFFECT THE REST OF THE STATUTE BECAUSE OF THE SAVING CLAUSE. 
P. 614. 

7.  THE PRICE-FIXING AND LICENSING PROVISIONS OF THE VIRGINIA MILK
AND CREAM ACT DO NOT APPLY TO TRANSACTIONS IN INTERSTATE COMMERCE,
NOTWITHSTANDING THE BROAD DEFINITION OF A "DISTRIBUTOR."  THIS VIEW IS
CONFIRMED BY THE ADMINISTRATIVE PRACTICE UNDER IT AND BY ITS
DECLARATION THAT OPERATIONS IN INTERSTATE COMMERCE SHALL NOT BE DEEMED
TO BE AFFECTED.  P. 614. 

8.  THIS STATUTE IS NOT INVALID FOR FAILING TO PRESCRIBE THE
STANDARDS TO BE APPLIED BY THE COMMISSION IN GRANTING LICENSES OR
REFUSING THEM.  P. 616. 

THE OBVIOUS PURPOSE OF THE LICENSE IS TO PROVIDE THE COMMISSION AND
THE MEMBERS OF THE LOCAL BOARDS WITH A RECORD OF THE DISTRIBUTORS AND
PRODUCERS SUBJECT TO THE ACT, AS AN AID TO SUPERVISION AND
ENFORCEMENT.  IT IS NOT TO BE INFERRED THAT ANY ONE WAS INTENDED TO BE
EXCLUDED BECAUSE OF FAVOR OR CAPRICE.  AN ORDER REFUSING TO ISSUE A
LICENSE, OR SUSPENDING OR REVOKING ONE, MAY BE REVIEWED ON APPEAL TO
THE SUPREME COURT OF APPEALS. 

9.  ONE WHO IS REQUIRED TO TAKE OUT A LICENSE WILL NOT BE HEARD TO
COMPLAIN, IN ADVANCE OF APPLICATION, THAT THERE IS DANGER OF REFUSAL. 
P. 616. 

HIGHLAND FARMS DAIRY, INC., ET AL. V. AGNEW ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF VIRGINIA. 

APPEAL FROM A JUDGMENT OF THE DISTRICT COURT, OF THREE JUDGES,
DENYING A PERMANENT INJUNCTION AND DISMISSING THE BILL IN A SUIT TO
RESTRAIN ENFORCEMENT OF THE VIRGINIA MILK AND CREAM ACT. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

A STATUTE OF VIRGINIA, KNOWN AS THE "MILK AND CREAM ACT," IS ASSAILED
BY THE APPELLANTS AS INVALID BOTH UNDER THE CONSTITUTION OF VIRGINIA
AND UNDER THAT OF THE UNITED STATES. 

THE ACT IS CHAPTER 357 OF THE LAWS OF 1934.  IT RECITES THE EXISTENCE
OF DEMORALIZING TRADE PRACTICES IN THE DAIRY INDUSTRY, THREATENING TO
INTERRUPT THE SUPPLY OF PURE AND WHOLESOME MILK FOR THE INHABITANTS OF
THE COMMONWEALTH AND PRODUCING AN ECONOMIC EMERGENCY SO ACUTE AND
DESTRUCTIVE AS TO CALL FOR CORRECTIVE MEASURES.  IT ESTABLISHES A MILK
COMMISSION WITH POWER TO CREATE WITHIN THE STATE NATURAL MARKET AREAS,
AND TO FIX THE MINIMUM AND MAXIMUM PRICES TO BE CHARGED FOR MILK AND
CREAM THEREIN.  IT AUTHORIZES THE COMMISSION TO EXACT A LICENSE FROM
DISTRIBUTORS SUBJECT TO THE ACT, AND PROVIDES THAT IN THE ABSENCE OF
SUCH A LICENSE SALES SHALL BE UNLAWFUL WITHIN THE MARKET AREAS.  IT
IMPOSES TAXES OR FEES FOR THE SUPPORT OF THE COMMISSION AND OF LOCAL
MILK BOARDS WHICH ARE TO BE CREATED TO COOPERATE WITH THE COMMISSION IN
MAKING THE PLAN EFFECTIVE.  IT WARNS (SEC. 14) THAT NONE OF ITS
PROVISIONS "SHALL APPLY OR BE CONSTRUED TO APPLY TO FOREIGN OR
INTERSTATE COMMERCE, EXCEPT IN SO FAR AS THE SAME MAY BE EFFECTIVE
PURSUANT TO THE UNITED STATES CONSTITUTION AND TO THE LAWS OF THE
UNITED STATES ENACTED PURSUANT THERETO."  FINALLY IT PROVIDES (SEC. 16)
THAT "IF ANY SECTION, CLAUSE, OR SENTENCE OR PARAGRAPH SHALL BE
DECLARED UNCONSTITUTIONAL FOR ANY REASON, THE REMAINDER OF THE ACT
SHALL NOT BE AFFECTED THEREBY."  A FULLER SUMMARY OF THE STATUTE IS
GIVEN IN THE OPINION OF THE COURT BELOW (16 F.SUPP.  575), TO WHICH
REFERENCE IS MADE.  OTHER PROVISIONS WILL BE NOTED IN THIS OPINION
LATER. 

THE SUIT IS FOR AN INJUNCTION TO RESTRAIN THE MEMBERS OF THE
COMMISSION FROM ENFORCING THE STATUTE OR THE REGULATIONS MADE
THEREUNDER.  ONE OF THE TWO PLAINTIFFS (HIGHLAND FARMS DAIRY,
INCORPORATED), WHICH WILL BE SPOKEN OF AS "HIGHLAND," HAS A CREAMERY
FOR THE PASTEURIZING AND TREATMENT OF MILK AT WASHINGTON IN THE
DISTRICT OF COLUMBIA.  FOR THAT PURPOSE IT BUYS MILK FROM FARMERS IN
VIRGINIA AND MARYLAND.  ITS ENTIRE OUTPUT OF BOTTLED MILK IT SELLS TO
THE OTHER PLAINTIFF, LUTHER W. HIGH, WHO HAS RETAIL STORES IN VIRGINIA
AND ELSEWHERE FOR THE SALE OF ICE CREAM, MILK AND OTHER DAIRY
PRODUCTS.  A REGULATION ADOPTED BY THE COMMISSION ON MARCH 27, 1936,
SET UP A MARKET AREA, DESCRIBED AS THE ARLINGTON-ALEXANDRIA MILK
MARKET, WITHIN WHICH HIGH IS ENGAGED IN BUSINESS.  MINIMUM PRICES
PRESCRIBED FOR THAT AREA ARE IN EXCESS OF THE PRICES AT WHICH HIGHLAND
HAD BEEN SELLING TO HIGH AND AT WHICH HIGH HAD SOLD TO THE CONSUMERS. 
EACH WENT ON SELLING AT THE OLD PRICES.  NEITHER MADE APPLICATION FOR A
LICENSE.  IN JUNE, 1936, THE COMMISSION GAVE NOTICE TO HIGH THAT IT
WOULD PROCEED AGAINST HIM FOR AN INJUNCTION IF HE REFUSED COMPLIANCE
WITH ITS ORDERS.  NO PROCEEDINGS AGAINST HIGHLAND WERE BEGUN OR EVEN
THREATENED, THE COMMISSION TAKING THE POSITION THAT HIGHLAND WAS NOT
SUBJECT TO THE PROHIBITIONS OF THE STATUTE, ITS SALES AND PURCHASES IN
VIRGINIA BEING TRANSACTIONS IN INTERSTATE COMMERCE.  IN SPITE OF THIS
DISCLAIMER, HIGHLAND JOINED WITH HIGH IN SUING TO ENJOIN THE
ENFORCEMENT OF THE ACT.  A DISTRICT COURT OF THREE JUDGES, ORGANIZED IN
ACCORDANCE WITH SEC. 266 OF THE JUDICIAL CODE (28 U.S.C. SEC. 380),
GAVE JUDGMENT FOR THE DEFENDANTS, WITH A COMPREHENSIVE OPINION TO WHICH
LITTLE CAN BE ADDED.  16 F.SUPP.  575.  THE CASE IS HERE UPON APPEAL. 
28 U.S.C. SEC. 380. 

THE POWER OF A STATE TO FIX A MINIMUM PRICE FOR MILK IN ORDER TO SAVE
PRODUCERS, AND WITH THEM THE CONSUMING PUBLIC, FROM PRICE CUTTING SO
DESTRUCTIVE AS TO ENDANGER THE SUPPLY, WAS AFFIRMED BY THIS COURT IN
NEBBIA V. NEW YORK, 291 U.S. 502, AND IN OTHER CASES AFTERWARDS. 
HEGEMAN FARMS CORP. V. BALDWIN, 293 U.S. 163; BORDEN'S FARM PRODUCTS
CO. V. TEN EYCK, 297 U.S. 251.  APPELLANTS ARE NOT ASKING US TO UNDO
WHAT WAS THERE DONE.  THEY TAKE THE GROUND, HOWEVER, THAT THE STATUTE
OF VIRGINIA IS OPEN TO OBJECTIONS THAT WERE INAPPLICABLE TO THE STATUTE
OF NEW YORK.  THE PRESENT GROUNDS OF CRITICISM WILL BE CONSIDERED ONE
BY ONE. 

1.  THE STATUTE IS NOT INVALID AS AN UNLAWFUL DELEGATION OF
LEGISLATIVE POWER. 

THE GENERAL ASSEMBLY OF THE COMMONWEALTH IN SETTING UP THE MILK
COMMISSION DID NOT CHARGE IT WITH A DUTY TO PRESCRIBE A SCALE OF PRICES
IN EVERY PORTION OF THE STATE.  THE COMMISSION WAS TO ESTABLISH MARKET
AREAS, AND WITH REFERENCE TO EACH AREA WAS TO DETERMINE, AFTER A PUBLIC
HEARING, WHETHER THERE WAS NEED WITHIN SUCH AREA THAT PRICES SHOULD BE
REGULATED.  IF IT WAS SATISFIED OF THE NEED, IT WAS TO FIX A SCALE
ACCORDINGLY.  THE ARGUMENT FOR THE APPELLANTS IS THAT IN THIS THERE WAS
A GRANT OF DISCRETIONARY POWER OVERPASSING THE LIMITS OF LAWFUL
DELEGATION. 

THE CONSTITUTION OF THE UNITED STATES IN THE CIRCUMTANCES HERE
EXHIBITED HAS NO VOICE UPON THE SUBJECT.  THE STATUTE CHALLENGED AS
INVALID IS ONE ADOPTED BY A STATE.  THIS REMOVES OBJECTIONS THAT MIGHT
BE WORTHY OF CONSIDERATION IF WE WERE DEALING WITH AN ACT OF CONGRESS. 
HOW POWER SHALL BE DISTRIBUTED BY A STATE AMONG ITS GOVERNMENTAL ORGANS
IS COMMONLY, IF NOT ALWAYS, A QUESTION FOR THE STATE ITSELF.  NOTHING
IN THE DISTRIBUTION HERE ATTEMPTED SUPPLIES THE BASIS FOR AN
EXCEPTION.  THE STATUTE IS NOT A DENIAL OF A REPUBLICAN FORM OF
GOVERNMENT.  CONSTITUTION, ART. IV, SEC. 4.  EVEN IF IT WERE, THE
ENFORCEMENT OF THAT GUARANTEE, ACCORDING TO THE SETTLED DOCTRINE, IS
FOR CONGRESS, NOT THE COURTS.  PACIFIC STATES TELEPHONE CO. V. OREGON,
223 U.S. 118; DAVIS V. HILDEBRANT, 241 U.S. 565; OHIO EX REL. BRYANT V.
AKRON PARK DISTRICT, 281 U.S. 74, 79, 80.  CASES SUCH AS PANAMA
REFINING CO. V. RYAN, 293 U.S. 388, AND SCHECHTER POULTRY CORP. V.
UNITED STATES, 295 U.S. 495, CITED BY APPELLANTS, ARE QUITE BESIDE THE
POINT.  WHAT WAS IN CONTROVERSY THERE WAS THE DISTRIBUTION OF POWER
BETWEEN PRESIDENT AND CONGRESS, OR BETWEEN CONGRESS AND ADMINISTRATIVE
OFFICERS OR COMMISSIONS, A CONTROVERSY AFFECTING THE STRUCTURE OF THE
NATIONAL GOVERNMENT AS ESTABLISHED BY THE PROVISIONS OF THE NATIONAL
CONSTITUTION. 

SO FAR AS THE OBJECTION TO DELEGATION IS FOUNDED ON THE CONSTITUTION
OF VIRGINIA, IT IS ANSWERED BY A DECISION OF THE HIGHEST COURT OF THE
STATE.  IN REYNOLDS V. MILK COMMISSION, 163 VA. 957; 179 S.E. 507, THE
SUPREME COURT OF APPEALS PASSED UPON THE VALIDITY OF THE STATUTE NOW IN
QUESTION.  THE COMMISSION SUED DISTRIBUTORS TO ENJOIN THEM FROM SELLING
MILK AT A PRICE LOWER THAN THE PRESCRIBED MINIMUM, AND THE INJUNCTION
WAS GRANTED AGAINST THE DEFENDANTS' OBJECTION THAT THE STATUTE WAS
INVALID.  UPON APPEAL TO THE SUPREME COURT OF APPEALS THE JUDGMENT WAS
AFFIRMED.  TO ESCAPE THE FORCE OF THAT DECISION THE ARGUMENT IS MADE
THAT THE QUESTION OF UNLAWFUL DELEGATION WAS NOT CONSIDERED OR
DECIDED.  BUT THE CONTRARY IS PLAINLY INDICATED BOTH IN THE OPINION OF
THE COURT AND IN THAT OF ITS DISSENTING MEMBERS.  THE PREVAILING
OPINION SUMMARIZES THE ARGUMENTS AGAINST THE ACT, AND AMONG THEM IS
THIS (163 VA. AT P. 976), THAT THERE IS "THE DELEGATION TO THE
COMMISSION OF THE POWER TO ENACT LEGISLATION WHICH IS BOTH PROHIBITORY
AND PENAL IN CHARACTER AND WHICH WILL BE OPERATIVE ONLY IN SUCH AREAS
AS THE COMMISSION MAY DEFINE."  THE DISSENTING OPINION SAYS (P. 980):
"THE COMMISSION MAY ORDER MILK TO BE SOLD AT ONE PRICE IN STAUNTON, AT
ANOTHER IN HARRISONBURG AND MAY LEAVE WOODSTOCK TO SHIFT FOR ITSELF." 
THESE STATEMENTS ARE TOO CLEAR TO LEAVE ROOM FOR MISCONSTRUCTION.  A
JUDGMENT BY THE HIGHEST COURT OF A STATE AS TO THE MEANING AND EFFECT
OF ITS OWN CONSTITUTION IS DECISIVE AND CONTROLLING EVERYWHERE. 

2.  THE STATUTE IS NOT INVALID IN ITS PRESENT APPLICATION BY REASON
OF A PROVISION FOR THE CANCELLATION OF THE PRICES ESTABLISHED FOR A
MARKET, IF CANCELLATION IS REQUESTED BY A MAJORITY OF THE PRODUCERS AND
DISTRIBUTORS IN THE AREA AFFECTED.  FN1 

THE ARGUMENT IS MADE THAT THE EFFECT OF THAT PROVISION IS TO VEST IN
UNOFFICIAL AGENCIES, CAPRICIOUSLY SELECTED, A POWER OF REPEAL TO BE
EXERCISED AT PLEASURE.  THE CASE OF EUBANK V. RICHMOND, 226 U.S. 137,
IS CITED FOR THE PROPOSITION THAT THIS CANNOT BE DONE CONSISTENTLY WITH
THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION.  DELEGATION TO
OFFICIAL AGENCIES IS ONE THING, THERE BEING NOTHING IN THE CONCEPT OF
DUE PROCESS TO REQUIRE THAT A PARTICULAR AGENCY SHALL HAVE A MONOPOLY
OF POWER; DELEGATION TO PRIVATE INTERESTS OR UNOFFICIAL GROUPS WITH
ARBITRARY CAPACITY TO MAKE THEIR WILL PREVAIL AS LAW MAY BE SOMETHING
VERY DIFFERENT.  CF., HOWEVER, CUSACK CO. V. CHICAGO, 242 U.S. 526,
531.  SUCH IS THE APPELLANTS' ARGUMENT WHEN ITS IMPLICATIONS ARE
DEVELOPED. 

WITHOUT ACCEPTANCE OR REJECTION OF THE DISTINCTION IN ITS APPLICATION
TO THIS STATUTE, WE THINK IT IS ENOUGH TO SAY THAT THE POWER OF
CANCELLATION HAS NOT BEEN EXERCISED OR EVEN THREATENED.  THE
CONTROVERSY IN THAT REGARD IS ABSTRACT AND CONJECTURAL.  ABRAMS V. VAN
SCHAICK, 293 U.S. 188.  MOREOVER, IF A PROVISION SO SUBORDINATE WERE AT
ANY TIME TO FAIL, THE SAVING CLAUSE IN SEC. 16 WOULD CAUSE THE RESIDUE
TO STAND. 

3.  THE STATUTE DOES NOT LAY A BURDEN ON INTERSTATE COMMERCE. 

ARGUMENT TO THE CONTRARY IS BUILT UPON THE DEFINITION OF THE WORD
"DISTRIBUTOR" CONTAINED IN SEC. 1.  WE LEARN FROM THAT SECTION THAT
DISTRIBUTORS INCLUDE "PERSONS WHEREVER LOCATED OR OPERATING, WHETHER
WITHIN OR WITHOUT THE COMMONWEALTH OF VIRGINIA, WHO PURCHASE, MARKET,
OR HANDLE MILK FOR RESALE AS FLUID MILK IN THE COMMONWEALTH OF
VIRGINIA."  THIS DEFINITION, WE ARE TOLD, TAKES IN THE PLAINTIFF
HIGHLAND, WHO BUYS MILK AND SELLS IT IN INTERSTATE COMMERCE, AND DOES
SO WITH THE EXPECTATION THAT UPON ARRIVAL IN VIRGINIA THE MILK WILL BE
RESOLD.  BUT HIGHLAND IS NOT SUBJECT TO THE PROVISIONS OF THE ACT, AND
SO THE MILK COMMISSION HAS RULED.  NO MATTER WHAT THE DEFINITION OF A
DISTRIBUTOR MAY BE, SALES ARE NOT AFFECTED BY ANY RESTRICTION AS TO
PRICE UNLESS MADE WITHIN THE BOUNDARIES OF A DESIGNATED MARKET AREA. 
THE SECTIONS QUOTED IN THE MARGIN POINT FAIRLY TO THAT CONCLUSION.  FN2
HIGHLAND IN WASHINGTON MAY SELL TO HIGH IN VIRGINIA, AND HIGH MAY BUY
FROM HIGHLAND, AT ANY PRICE THEY PLEASE.  NOT TILL THE MILK IS RESOLD
IN VIRGINIA WITHIN A MARKET AREA WILL THE PRICE MINIMUM APPLY, AND THEN
ONLY TO THE PRICE TO BE CHARGED ON THE RESALE.  CF. WILOIL CORP. V.
PENNSYLVANIA, 294 U.S. 169, 175; SONNEBORN BROS. V. CURETON, 262 U.S.
506; BALDWIN V. G.A.F. SEELIG, INC., 294 U.S. 511.  IF THERE COULD BE
ANY DOUBT ABOUT THIS AS A MATTER OF CONSTRUCTION, THE DOUBT WOULD BE
DISPELLED BY THE ADMINISTRATIVE PRACTICE AND BY THE WARNING OF THE
STATUTE, EXPRESSED IN SEC. 14, THAT OPERATIONS IN INTERSTATE COMMERCE
SHALL NOT BE DEEMED TO BE AFFECTED.  SO ALSO AS TO THE REQUIREMENT OF A
LICENSE EXPRESSED IN SEC. 4.  FN3  HIGH NEEDS A LICENSE TO THE EXTENT
THAT HE SELLS AT RETAIL TO CONSUMERS IN VIRGINIA.  HIGHLAND DOES NOT
NEED ONE, AND THE COMMISSION IS NOT ASKING IT TO APPLY FOR ONE, BECAUSE
ITS BUSINESS AS NOW CONDUCTED WITH PERSONS IN VIRGINIA IS INTERSTATE
EXCLUSIVELY.  CLUMSY DRAFTSMANSHIP MAY HAVE SPREAD A FOG ABOUT THE
SCATTERS WHEN WE RECALL THE PROVISIONS OF SEC. 14 AND THE
ADMINISTRATIVE PRACTICE.  APPELLANTS' FEARS ARE VISIONARY. 

4.  THE STATUTE IS NOT INVALID FOR FAILING TO PRESCRIBE THE STANDARDS
TO BE APPLIED BY THE COMMISSION IN GRANTING LICENSES OR REFUSING THEM. 

THE OBVIOUS PURPOSE OF THE LICENSE IS TO PROVIDE THE COMMISSION AND
THE MEMBERS OF THE LOCAL BOARDS WITH A RECORD OF THE DISTRIBUTORS AND
PRODUCERS SUBJECT TO THE ACT.  SUPERVISION AND ENFORCEMENT ARE THUS
LIKELY TO BE EASIER.  NO INFERENCE IS PERMISSIBLE THAT ANY ONE WAS
INTENDED TO BE EXCLUDED BECAUSE OF FAVOR OR CAPRICE.  LIEBERMAN V. VAN
DE CARR, 199 U.S. 552.  INDEED THE STATUTE MAKES PROVISION (SEC. 6)
THAT AN ORDER REFUSING TO ISSUE A LICENSE, OR SUSPENDING OR REVOKING
ONE, MAY BE REVIEWED ON APPEAL TO THE SUPREME COURT OF APPEALS.  THERE
IS SEDULOUS PROTECTION AGAINST OPPRESSION OR ABUSE OF POWER.  ONE WHO
IS REQUIRED TO TAKE OUT A LICENSE WILL NOT BE HEARD TO COMPLAIN, IN
ADVANCE OF APPLICATION, THAT THERE IS DANGER OF REFUSAL.  LEHON V.
ATLANTA, 242 U.S. 53, 56; SMITH V. CAHOON, 283 U.S. 553, 562.  HE
SHOULD APPLY AND SEE WHAT HAPPENS. 

OTHER ARGUMENTS AGAINST THE ACT ARE IMPLICIT IN THE ARGUMENTS ALREADY
SUMMARIZED AND ANSWERED.  EXPANSION OF THE ANSWER WILL SERVE NO USEFUL
PURPOSE. 

THE DECREE IS AFFIRMED. 

FN1  THE PROVISION (SEC. 3(I)) READS AS FOLLOWS:  "THE COMMISSION
SHALL WITHDRAW THE EXERCISE OF ITS POWERS FROM ANY MARKET UPON WRITTEN
APPLICATION OF A MAJORITY OF THE PRODUCERS (MEASURED BY VOLUME) OF MILK
PRODUCED AND A MAJORITY OF THE DISTRIBUTORS (MEASURED BY VOLUME OF MILK
DISTRIBUTED) IN SAID MARKET ACTING JOINTLY."    FN2  SEC. 3, SUBD. J:
"THE COMMISSION, AFTER PUBLIC HEARING AND INVESTIGATION, MAY FIX THE
PRICES TO BE PAID PRODUCERS AND/OR ASSOCIATIONS OF PRODUCERS BY
DISTRIBUTORS IN ANY MARKET OR MARKETS, MAY FIX THE MINIMUM AND MAXIMUM
WHOLESALE AND RETAIL PRICES TO BE CHARGED FOR MILK IN ANY MARKET, AND
MAY ALSO FIX DIFFERENT PRICES FOR DIFFERENT GRADES OF MILK.  IN
DETERMINING THE REASONABLENESS OF PRICES TO BE PAID OR CHARGED IN ANY
MARKET OR MARKETS FOR ANY GRADE, QUANTITY, OR CLASS OF MILK, THE
COMMISSION SHALL BE GUIDED BY THE COST OF PRODUCTION AND DISTRIBUTION,
INCLUDING COMPLIANCE WITH ALL SANITARY REGULATIONS IN FORCE IN SUCH
MARKET OR MARKETS, NECESSARY OPERATION, PROCESSING, STORAGE AND
DELIVERY CHARGES, THE PRICES OF OTHER FOODS, AND THE WELFARE OF THE
GENERAL PUBLIC." 

SEC. 3, SUBD. K:  "THE COMMISSION MAY REQUIRE ALL DISTRIBUTORS IN ANY
MARKET DESIGNATED BY THE COMMISSION TO BE LICENSED BY THE COMMISSION
FOR THE PURPOSE OF CARRYING OUT THE PROVISIONS OF THIS ACT.  THE
COMMISSION MAY DECLINE TO GRANT A LICENSE, OR MAY SUSPEND OR REVOKE A
LICENSE ALREADY GRANTED UPON DUE NOTICE AND AFTER A HEARING.  THE
COMMISSION MAY CLASSIFY LICENSES, AND MAY ISSUE LICENSES TO
DISTRIBUTORS TO PROCESS OR STORE OR SELL MILK TO A PARTICULAR CITY OR
VILLAGE OR TO A PARTICULAR MARKET OR MARKETS WITHIN THE COMMONWEALTH." 

SEC. 1, PAR. II:  "'MARKET' MEANS ANY CITY, TOWN OR VILLAGE OF THE
COMMONWEALTH, OR TWO OR MORE CITIES AND/OR TOWNS AND/OR VILLAGES AND
SURROUNDING TERRITORY DESIGNATED BY THE COMMISSION AS A NATURAL
MARKETING AREA." 

FN3  THE SECTION READS AS FOLLOWS:  "NO DISTRIBUTOR IN A MARKET IN
WHICH THE PROVISIONS OF THIS ACT ARE IN EFFECT SHALL BUY MILK FROM
PRODUCERS, OR OTHERS, FOR SALE WITHIN THE COMMONWEALTH, OR SELL OR
DISTRIBUTE MILK WITHIN THE COMMONWEALTH, UNLESS SUCH DISTRIBUTOR IS
DULY LICENSED UNDER THE PROVISIONS OF THIS ACT.  IT SHALL BE UNLAWFUL
FOR A DISTRIBUTOR TO BUY MILK FROM OR SELL MILK TO A DISTRIBUTOR WHO IS
NOT LICENSED AS REQUIRED BY THIS ACT.  IT SHALL BE UNLAWFUL FOR ANY
DISTRIBUTOR TO DEAL IN, OR HANDLE MILK IF SUCH DISTRIBUTOR HAS REASON
TO BELIEVE IT HAS PREVIOUSLY BEEN DEALT IN, OR HANDLED, IN VIOLATION OF
THE TERMS AND PROVISIONS OF THIS ACT." 

MR. JUSTICE VAN DEVANTER, MR. JUSTICE MCREYNOLDS, MR. JUSTICE
SUTHERLAND AND MR. JUSTICE BUTLER DO NOT ASSENT TO SO MUCH OF THE
OPINION AS ATTRIBUTES TO THE STATE A POWER TO FIX MINIMUM AND MAXIMUM
PRICES TO BE CHARGED IN THE SALE OF MILK, THEIR VIEWS ON THIS QUESTION
BEING REFLECTED BY WHAT WAS SAID ON THEIR BEHALF BY MR. JUSTICE
MCREYNOLDS IN NEBBIA V. NEW YORK, 291 U.S. 502, 539-559.  IN OTHER
RESPECTS THEY CONCUR IN THE OPINION. 
..END :












BRUSH V. COMMISSIONER, 300 U.S. 352 


NO. 451.  ARGUED FEBRUARY 4, 1937.  - DECIDED MARCH 15, 1937.  - 85
F.(2D) 32, REVERSED. 


1.  THE WATER SYSTEM OF THE CITY OF NEW YORK WAS CREATED AND IS
CONDUCTED IN THE EXERCISE OF THE CITY'S GOVERNMENTAL FUNCTIONS, AND THE
SALARY OF THE CHIEF ENGINEER OF THE CITY'S BUREAU OF WATER SUPPLY IS
IMMUNE FROM FEDERAL TAXATION.  PP. 360, 366. 

THE CHIEF ENGINEER HOLDS HIS OFFICE BY STATUTORY AUTHORITY WITH A
FIXED ANNUAL SALARY.  HE EXERCISES SUPERVISION OVER THE ENGINEERING
DETAILS CONNECTED WITH THE SUPPLYING OF WATER FOR PUBLIC PURPOSES AND
FOR CONSUMPTION BY THE INHABITANTS OF THE CITY; SUPERVISES THE
PROTECTION OF THE WATER SUPPLY FROM POLLUTION; AND GENERALLY EXERCISES
CONTROL OVER THE OPERATION OF THE WATER SYSTEM, ITS PERSONNEL,
EXPENDITURE OF MONEY, AND OTHER MATTERS RELATING THERETO.  THE OPINION
SKETCHES THE HISTORY OF THE SYSTEM, DEVELOPED UNDER LEGISLATIVE
AUTHORITY, AND INDICATES ITS VITAL IMPORTANCE FROM BOTH PUBLIC AND
PRIVATE STANDPOINTS. 

2.  THIS ACTIVITY MAY BE DEEMED AN ESSENTIAL GOVERNMENTAL FUNCTION OF
THE STATE.  P. 362. 

3.  THE RULE THAT FORBIDS THE UNITED STATES TO TAX THE GOVERNMENTAL
INSTRUMENTALITIES OF THE STATES, AND VICE VERSA, IS NECESSARILY IMPLIED
IN THE CONSTITUTION AS ESSENTIAL TO THE PRESERVATION OF OUR FORM OF
GOVERNMENT; ITS APPLICATION IS A QUESTION OF NATIONAL SCOPE TO BE
RESOLVED BY PRINCIPLES OF GENERAL APPLICATION.  P. 364. 

4.  LOCAL RULINGS ATTEMPTING TO SEPARATE GOVERNMENTAL FROM CORPORATE
ACTIVITIES IN DETERMINING WHETHER MUNICIPALITIES ARE SUABLE FOR THE
TORTS OF THEIR AGENTS, SHOULD BE APPLIED WITH CAUTION AS A TEST IN
DETERMINING WHAT MUNICIPAL ACTIVITIES ARE SUBJECT TO FEDERAL TAXATION. 
P. 363. 

5.  THE CONCLUSION THAT THE ACQUISITION AND DISTRIBUTION OF A SUPPLY
OF WATER FOR THE NEEDS OF NEW YORK CITY INVOLVE THE EXERCISE OF
ESSENTIAL GOVERNMENTAL FUNCTIONS IS FORTIFIED BY A CONSIDERATION OF THE
PUBLIC USES TO WHICH THE WATER IS PUT, AND THE DEPENDENCY OF THE HEALTH
AND COMFORT OF THE INHABITANTS UPON AN ADEQUATE SUPPLY OF PURE WATER. 
P. 370. 

6.  THE FACT THAT IN FORMER TIMES THE BUSINESS OF FURNISHING WATER TO
URBAN COMMUNITIES, INCLUDING NEW YORK, WAS LEFT LARGELY OR ENTIRELY TO
PRIVATE ENTERPRISE IS NOT A REASON FOR HOLDING THAT THE FUNCTION, WHEN
PERFORMED BY THE CITY, IS NOT GOVERNMENTAL.  P. 371. 

7.  GOVERNMENTAL FUNCTIONS ARE NOT TO BE REGARDED AS NON-EXISTENT
BECAUSE THEY WERE HELD IN ABEYANCE AND HAVE BUT RECENTLY BEEN CALLED
INTO USE.  P. 371. 

8.  THE FACT THAT THE CITY MAKES A CHARGE FOR WATER SERVICE TO
PRIVATE CONSUMERS DOES NOT STAMP THE FUNCTION OF SUPPLYING WATER AS A
PRIVATE ONE.  P. 372. 

9.  SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437, 461, 462, AND
FLINT V. STONE TRACY CO., 220 U.S. 107, 172, DISTINGUISHED.  DICTA IN
AN OPINION BY WAY OF ILLUSTRATION DO NOT CONTROL IN SUBSEQUENT CASES IN
WHICH THE PRECISE POINT IS PRESENTED FOR DECISION.  P. 373. 

BRUSH V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 299 U.S. 536, TO REVIEW A JUDGMENT AFFIRMING AN ORDER OF
THE BOARD OF TAX APPEALS, WHICH SUSTAINED A DEFICIENCY INCOME TAX
ASSESSMENT ON THE SALARY OF THE PETITIONER IN THIS CASE. 

THE QUESTION PRESENTED:  THE SUPPLYING OF WATER TO GREATER NEW YORK
FOR USE BY THE CITY ITSELF AND ITS INHABITANTS BEING A USUAL
GOVERNMENTAL FUNCTION AND AN UNDERTAKING WHICH CANNOT BE EFFICIENTLY OR
SAFELY LEFT TO PRIVATE ENTERPRISE, AND HAVING BEEN CONDUCTED BY THE
GOVERNMENT FOR OVER A CENTURY, SHOULD NOT THE SALARY OF A MUNICIPAL
EMPLOYEE SERVING AS ENGINEER TO THE DEPARTMENT OF WATER SUPPLY BE
EXEMPT FROM FEDERAL INCOME TAXES?  THE PETITIONER CONTENDS THE COURT
BELOW ADOPTED AN ERRONEOUS CRITERION FOR IMMUNITY, IN THAT THE COURT
LAID DOWN THE TEST THAT THE ACTIVITY IN QUESTION MUST BE "NECESSARY TO
ITS (THE MUNICIPALITY'S) EXISTENCE AS A GOVERNMENT." 

THE TEST TO BE APPLIED IS WHETHER SUPPLYING WATER IS A "USUAL
GOVERNMENTAL FUNCTION."  HELVERING V. POWERS, 293 U.S. 214; FLINT V.
STONE TRACY CO., 220 U.S. 107; UNITED STATES V. CALIFORNIA, 297 U.S.
175, 185. 

THE SUPPLY OF PURE WATER, IN ADEQUATE AMOUNTS, TO URBAN CENTERS OF
POPULATION HAS BEEN CONSISTENTLY REGARDED AS A SOVEREIGN OR
GOVERNMENTAL FUNCTION FROM AN EARLY DATE.  NEW ORLEANS V. MORRIS, 105
U.S. 600; NEW ORLEANS WATER WORKS V. RIVERS, 115 U.S. 674, 681-682;
COLUMBUS V. MERCANTILE TRUST CO., 218 U.S. 645, 658.  DISTINGUISHING:
SOUTH CAROLINA V. UNITED STATES, 199 U.S. 437; OHIO V. HELVERING, 292
U.S. 360, 369.  SEE ASHTON V. CAMERON COUNTY WATER DISTRICT, 298 U.S.
513; ROCHESTER V. RUSH, 80 N.Y. 302; LEONARD V. BROOKLYN, 71 N.Y. 498;
MASSENA V. ST. LAWRENCE CO., 126 MISC. 524. 

THE NECESSITY OF PUBLIC OPERATION OF WATERWORKS IS SO WIDELY
RECOGNIZED THAT SUCH OPERATION HAS BECOME USUAL, WITH PRIVATE OPERATION
RARE IN PRACTICE AND CONFINED TO THE SMALLER CITIES. 

IN DEFINING "USUAL GOVERNMENTAL FUNCTION," THE COURTS SHOULD NOT
CONFINE THEIR ATTENTION TO THE SITUATION PREVAILING WHEN THE UNION WAS
FORMED.  HOSKINS V. COMMISSIONER, 84 F.(2D) 627. 

THE ANALOGY OF THE TORT CASES IS IMPERTINENT AND MISLEADING. 
EXEMPTION FROM LIABILITY IN TORT MIGHT HAVE LED TO WIDESPREAD
INDIVIDUAL SUFFERING AND OTHER DEPLORABLE CONSEQUENCES.  THE COURTS
MIGHT WELL HAVE DECIDED THAT TO LEAVE UNCOMPENSATED ALL PERSONS INJURED
THROUGH THE NEGLIGENT OPERATION OF WATERWORKS WOULD PRODUCE MORE
WIDESPREAD SOCIAL EVILS THAN WOULD FLOW FROM HOLDING CITIES LIABLE TO
PERSONS INJURED. 

RADICALLY DIFFERENT CONSIDERATIONS ASSUME CONTROL WHEN THE DISCUSSION
SHIFTS TO THE MATTER OF TAX EXEMPTION OF WATERWORKS' EMPLOYEES FROM
FEDERAL TAXES.  TO DENY EXEMPTION HINDERS THE PERFORMANCE OF WHAT THIS
COURT REGARDED AS THE HIGHEST OF POLICE DUTIES (COLUMBUS V. MERCANTILE
TRUST CO., 218 U.S. 645) BY EITHER LEAVING EMPLOYEES DISSATISFIED WITH
REDUCED SALARIES OR CITIES BURDENED WITH THE DUTY OF INCREASING THOSE
SALARIES TO LEVELS ADEQUATE TO LEAVE A FAIR AND JUST NET SALARY AFTER
PAYING TAXES. 

THAT THE TRADITIONAL DICHOTOMY OF THE TORT CASES IS NOT UNIVERSALLY
VALID HAS BEEN ACKNOWLEDGED BY THIS COURT ITSELF.  TRENTON V. NEW
JERSEY, 262 U.S. 182. 

THE PETITIONER'S CONTENTIONS DO NOT LEAD TO A WITHDRAWAL OF ANY FIELD
FROM FEDERAL TAXATION.  THE FIELD WE ARE CONCERNED WITH HAS NEVER
PREVIOUSLY BEEN INVADED BY THE FEDERAL GOVERNMENT.  CF. METCALF & EDDY
V. MITCHELL, 269 U.S. 514, 519. 

THAT REVENUES ARE DERIVED FROM THE MUNICIPAL WATERWORKS IS OF NO
CONSEQUENCE.  COMMISSIONER V. TEN EYCK, 76 F.(2D) 515, 519; NEW YORK EX
REL. ROGERS V. GRAVES, 299 U.S. 401; UNITED STATES V. COGHLAN, 261 FED.
425, 426. 

THE TAXATION OF THE PETITIONER'S SALARY IMPEDES AND BURDENS THE
MUNICIPALITY IN PERFORMING GOVERNMENTAL FUNCTIONS.  COLLECTOR V. DAY,
11 WALL.  113; NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S. 401; METCALF
& EDDY V. MITCHELL, 269 U.S. 514, 524; MILLER V. MCCAUGHN, 27 F.(2D)
128. 

WE DISCERN FAR-REACHING CONSEQUENCES IF THE DECISION BELOW IS ALLOWED
TO STAND.  FOR, IF THE FEDERAL GOVERNMENT CAN TAX THE PETITIONER'S
SALARY, IT WILL PRESENTLY ASSERT THE RIGHT TO TAX THE BONDS ISSUED FOR
AQUEDUCT AND RESERVOIR CONSTRUCTION AND, HAVING SUCCEEDED SO FAR, WILL
IMPOSE AN INCOME TAX ON THE REVENUES OF OPERATION.  IN ORDER TO ENJOY
THE PROTECTION WHICH AN ADEQUATE SUPPLY OF PURE WATER GIVES AGAINST
FIRES AND AGAINST DISEASE, THE CITIZENS OF NEW YORK WILL BE COMPELLED
TO PAY TRIBUTE TO THE FEDERAL GOVERNMENT. 

IF THE GOVERNMENT'S CONTENTIONS ARE UPHELD, THE VARIOUS STATES IN
WHICH THE TENNESSEE VALLEY AUTHORITY CARRIES ON ITS OPERATIONS MIGHT
WELL SEEK TO TAX ITS REVENUES AND ITS REAL ESTATE, ON THE GROUND THAT
TO DO SO WOULD NOT IMPEDE ANY ACTIVITY ESSENTIAL TO THE EXISTENCE OF
THE FEDERAL GOVERNMENT AS A GOVERNMENT. 

THE DEPARTMENT OF WATER SUPPLY, GAS AND ELECTRICITY OF THE CITY OF
NEW YORK REPRESENTS AND PERFORMS A NORMAL AND NECESSARY GOVERNMENTAL
FUNCTION, MEETING THE STANDARDS LAID DOWN BY THIS COURT. 

THE FEDERAL TAXATION OF NEW YORK CITY'S WATER SUPPLY WILL CONSTITUTE
A DIRECT BURDEN ON THE STATE OF NEW YORK. 

IF THE WATER SUPPLY FUNCTION IS IMMUNE, THE SALARIES OF THE CITY'S
OFFICERS AND EMPLOYEES ENGAGED THEREIN ARE LIKEWISE IMMUNE. 

SINCE THE RULE IS AIMED AT THE PROTECTION OF THE OPERATIONS OF
GOVERNMENT, THE IMMUNITY DOES NOT EXTEND "TO ANYTHING LYING OUTSIDE OR
BEYOND GOVERNMENTAL FUNCTIONS AND THEIR EXERTIONS."  FOX FILM CORP. V.
DOYAL, 286 U.S. 123, 128; BOARD OF TRUSTEES V. UNITED STATES, 289 U.S.
48.  IT IS ENTIRELY CLEAR THAT THE OPERATION BY A MUNICIPALITY OF A
PUBLIC UTILITY SUCH AS A WATERWORKS SYSTEM IS NOT A GOVERNMENTAL
FUNCTION. 

A MUNICIPAL CORPORATION ACTS IN A DUAL CAPACITY.  IN THE ONE
CHARACTER IT IS A GOVERNMENTAL SUBDIVISION OF THE STATE, AND EXERCISES,
BY DELEGATION, A PART OF THE SOVEREIGNTY OF THE STATE.  IN THE OTHER
CHARACTER IT IS A MERE LEGAL ENTITY OR JURISTIC PERSON AND STANDS FOR
THE COMMUNITY IN ADMINISTRATION OF LOCAL AFFAIRS.  VILAS V. MANILA, 220
U.S. 345, 356; WINONA V. BOTZET, 169 FED. 321, 332; GALVESTON V. ROWAN,
20 F.(2D) 501, 502. 

IT IS WELL SETTLED THAT IN THE MAINTENANCE OF A WATER SUPPLY SYSTEM,
THE MUNICIPALITY ACTS IN A CORPORATE OR PROPRIETARY AND NOT IN A
GOVERNMENTAL CAPACITY.  MCQUILLIN, MUNICIPAL CORPORATIONS, (2D ED.),
SECS. 1962, 2852; BORCHARD, GOVERNMENT LIABILITY IN TORT, 34 YALE L.
J., PP. 1, 252, 254.  WE HAVE FOUND NO AUTHORITY TO THE CONTRARY. 
(CITING MANY STATE CASES.)  THIS IS THE SETTLED RULE IN NEW YORK, THE
HIGHEST COURT OF THAT STATE HOLDING THAT THE VERY FUNCTION HERE
INVOLVED - THE OPERATION OF THE NEW YORK CITY WATER SYSTEM - IS A
PRIVATE AND NOT A GOVERNMENTAL FUNCTION, AND HOLDING, MOREOVER, IN
APPLYING THE DOCTRINE OF RESPONDEAT SUPERIOR, THAT AN EMPLOYEE OF THE
CITY, ENGAGED IN SUCH PROPRIETARY ACTIVITY, IS NOT AN OFFICER OR
EMPLOYEE OF THE STATE OF NEW YORK, BUT AN AGENT OF THE CITY PERFORMING
SERVICES FOR THE LOCAL ADVANTAGE AND BENEFIT OF THE CITY AND NOT FOR
THE STATE AT LARGE.  (CITING NEW YORK CASES.) 

THAT THE RULE OF IMMUNITY HAS NO PLACE IN THIS PROCEEDING, SEE FLINT
V. STONE TRACY CO., 220 U.S. 107, 172; SOUTH CAROLINA V. UNITED STATES,
199 U.S. 437, 461, 462; HELVERING V. POWERS, 293 U.S. 214; BLAIR V.
BYERS, 35 F.(2D) 326; DENMAN V. COMMISSIONER, 73 F.(2D) 193. 

THE FUNDAMENTAL REASON FOR DENYING FEDERAL AUTHORITY TO TAX IS FOUND
IN THE NECESSARY PROTECTION OF THE INDEPENDENCE OF THE RESPECTIVE
GOVERNMENTS WITHIN THEIR RESPECTIVE SPHERES UNDER OUR CONSTITUTION. 
HELVERING V. POWERS, SUPRA; COLLECTOR V. DAY, 11 WALL.  113, 125, 127;
AMBROSINI V. UNITED STATES, 187 U.S. 1, 7.  THESE REASONS OUTLINE THE
LIMITS OF THE RULE OF IMMUNITY.  BOARD OF TRUSTEES V. UNITED STATES,
289 U.S. 48; INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570, 575,
576.  THE PRINCIPLE OF IMMUNITY HAS INHERENT LIMITATIONS.  HELVERING V.
POWERS, SUPRA; METCALF & EDDY V. MITCHELL, 269 U.S. 514, 522-524;
WILLCUTS V. BUNN, 282 U.S. 216, 225, 226; FOX FILM CORP. V. DOYAL, 286
U.S. 123, 128. 

THE SUCCESSFUL WORKING OF OUR DUAL GOVERNMENTAL SYSTEM REQUIRES THAT
THE PRINCIPLE OF IMMUNITY BE APPLIED SO AS TO INTERFERE AS LITTLE AS
POSSIBLE WITH THE IMPORTANT FUNCTIONS OF FEDERAL TAXATION, AND,
THEREFORE, THE RULE IS TO BE APPLIED RESTRICTIVELY.  WILLCUTS V. BUNN,
282 U.S. 216; 225; EDUCATIONAL FILMS CORP. V. WARD, 282 U.S. 379, 391. 

THE NECESSARY INDEPENDENCE OF THE STATES REQUIRES THAT THE RULE BE
APPLIED ONLY TO THOSE FUNCTIONS "STRICTLY" OR "ESSENTIALLY"
GOVERNMENTAL IN CHARACTER.  SOUTH CAROLINA V. UNITED STATES, SUPRA, P.
461; FLINT V. STONE TRACY CO., SUPRA, PP. 157, 172.  JUST WHAT THOSE
FUNCTIONS ARE THAT ARE STRICTLY AND ESSENTIALLY GOVERNMENTAL AND
NECESSARY TO PRESERVE THE SEPARATE INDEPENDENCE OF THE STATES IS
DIFFICULT TO STATE IN TERMS OF GENERAL APPLICATION.  SEE METCALF & EDDY
V. MITCHELL, 269 U.S. 514, 523.  APPARENTLY THEY INCLUDE ONLY THE
OPERATIONS OF THE LEGISLATIVE, EXECUTIVE, AND JUDICIAL BRANCHES OF
STATE GOVERNMENT IN THE MAKING AND ENFORCING OF LAWS.  SEE FLINT V.
STONE TRACY CO., SUPRA, PP. 157, 172; LIGGETT & MYERS TOBACCO CO. V.
UNITED STATES, 13 F.SUPP.  143, 145; AFF'D ON OTHER GROUNDS, 299 U.S.
383.  IT IS CLEAR THAT THE OPERATION BY A MUNICIPALITY OF A WATERWORKS
IS NOT A STRICTLY AND ESSENTIAL GOVERNMENTAL FUNCTION, NECESSARY TO THE
PRESERVATION OF INDEPENDENT STATE GOVERNMENTS.  IN FACT, THE STATE HAS
NO INTEREST, GOVERNMENTAL OR OTHERWISE, IN THE ACTIVITY IN QUESTION. 
BAILEY V. MAYOR, 3 HILL (N.Y.)  531, 539. 

THE RULE OF IMMUNITY IS FURTHER LIMITED BY THE SETTLED PRINCIPLE THAT
THE STATES MAY NOT WITHDRAW SOURCES OF REVENUE FROM THE FEDERAL TAXING
POWER BY ENGAGING IN ACTIVITIES TO WHICH, BY THEIR NATURE, THE FEDERAL
TAXING POWER WOULD NORMALLY EXTEND.  HELVERING V. POWERS, SUPRA; SOUTH
CAROLINA V. UNITED STATES, 199 U.S. 437; MURRAY V. WILSON DISTILLING
CO., 213 U.S. 151, 173; UNITED STATES V. CALIFORNIA, 297 U.S. 175, 184
185; OHIO V. HELVERING, 292 U.S. 360, 368, 369.  SEE ALSO UNITED STATES
BANK V. PLANTERS BANK, 9 WHEAT.  904, 907. 

IN THE PURVEYING OF WATER FOR A PRICE, THE CITY IS ENGAGED IN A
PROFITABLE BUSINESS ENTERPRISE.  IT IS ENGAGED IN AN ACTIVITY WHICH, AT
THE TIME OF THE ADOPTION OF OUR CONSTITUTION, WAS CARRIED ON BY PRIVATE
COMPANIES.  IN NEW YORK CITY AT THE PRESENT TIME WATER IS FURNISHED AND
SOLD BY PRIVATE COMPANIES IN CERTAIN AREAS. 

THE DUTIES OF THE TAXPAYER AS CHIEF ENGINEER ARE NO DIFFERENT FROM
THOSE OF SIMILAR ENGINEERS EMPLOYED BY PRIVATE CONCERNS ENGAGED IN A
SIMILAR ENTERPRISE.  WE SEE NO REASON FOR PUTTING THE SALE OF WATER IN
A DIFFERENT CATEGORY FROM THE SALE OF LIQUOR (SOUTH CAROLINA V. UNITED
STATES, 199 U.S. 437; OHIO V. HELVERING, 292 U.S. 360) OR FROM THE
OPERATION OF A STREET RAILWAY (HELVERING V. POWERS, 293 U.S. 214). 
AND, IF A STATE MAY NOT, BY ENTERING INTO THESE ACTIVITIES, THUS
WITHDRAW SOURCES OF FEDERAL REVENUE, A FORTIORI A MUNICIPAL CORPORATION
MAY NOT. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THE QUESTION BROUGHT HERE FOR DETERMINATION IS WHETHER THE SALARY OF
PETITIONER AS CHIEF ENGINEER OF THE BUREAU OF WATER SUPPLY OF THE CITY
OF NEW YORK IS A PART OF HIS TAXABLE INCOME FOR THE PURPOSES OF THE
FEDERAL INCOME-TAX LAW.  THE ANSWER DEPENDS UPON WHETHER THE WATER
SYSTEM OF THE CITY WAS CREATED AND IS CONDUCTED IN THE EXERCISE OF THE
CITY'S GOVERNMENTAL FUNCTIONS.  IF SO, ITS OPERATIONS ARE IMMUNE FROM
FEDERAL TAXATION AND, AS A NECESSARY COROLLARY, "FIXED SALARIES AND
COMPENSATION PAID TO ITS OFFICERS AND EMPLOYEES IN THEIR CAPACITY AS
SUCH ARE LIKEWISE IMMUNE."  NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S.
401, 408. 

PETITIONER HOLDS HIS OFFICE AS CHIEF ENGINEER BY STATUTORY AUTHORITY,
WITH A FIXED ANNUAL SALARY OF $14,000.  HE EXERCISES SUPERVISION OVER
THE ENGINEERING DETAILS CONNECTED WITH THE SUPPLYING OF WATER FOR
PUBLIC PURPOSES AND FOR CONSUMPTION BY THE INHABITANTS OF THE CITY;
SUPERVISES THE PROTECTION OF THE WATER SUPPLY FROM POLLUTION; AND
GENERALLY EXERCISES CONTROL OVER THE OPERATION OF THE WATER SYSTEM, ITS
PERSONNEL, EXPENDITURE OF MONEY AND OTHER MATTERS RELATING THERETO. 

IN THE EARLY HISTORY OF THE CITY, WATER WAS FURNISHED BY PRIVATE
COMPANIES; BUT A CENTURY OR MORE AGO, THE CITY ITSELF BEGAN TO TAKE
OVER THE DEVELOPMENT AND DISTRIBUTION.  IN 1831, THE BOARD OF ALDERMEN
DECLARED ITS DISSATISFACTION WITH THE PRIVATE CONTROL, AND RESOLVED
THAT THE POWERS THEN VESTED IN PRIVATE HANDS SHOULD BE REPEALED BY THE
LEGISLATURE AND VESTED EXCLUSIVELY IN THE CORPORATION OF THE CITY OF
NEW YORK.  THIS, IN EFFECT, WAS INITIATED IN 1833(L. 1833, C. 36); AND,
SOON THEREAFTER, THE CITY CONSTRUCTED MUNICIPAL WATER WORKS, AND, WITH
SLIGHT EXCEPTIONS, PRIVATE CONTROL AND OPERATION CEASED.  THE SOURCES
OF WATER SUPPLY FURNISHED BY SUCH COMPANIES AS REMAIN ARE APPROACHING
EXHAUSTION, AND THE WATER FURNISHED IS OF A QUALITY INFERIOR TO THAT
SUPPLIED BY THE MUNICIPALITY.  FROM 1833 TO THE PRESENT TIME, ADDITIONS
TO THE WATER SUPPLY AND SYSTEM HAVE BEEN STEADILY MADE UNTIL THE COST
HAS MOUNTED TO MORE THAN $500,000,000; AND IT IS ESTIMATED THAT
ADDITIONAL EXPENDITURES OF A QUARTER OF A BILLION DOLLARS WILL BE
NECESSARY.  THE COST OF BRINGING WATER FROM THE CATSKILLS ALONE
AMOUNTED TO APPROXIMATELY $200,000,000.  THE MUNICIPAL OUTSTANDING
BONDED INDEBTEDNESS INCURRED FOR SUPPLYING THE CITY WITH WATER AMOUNTS
TO AN ENORMOUS SUM.  MORE THAN HALF THE ENTIRE POPULATION OF THE STATE
IS FOUND WITHIN THE MUNICIPAL BOUNDARIES.  THE ACTION OF THE CITY FROM
THE BEGINNING HAS BEEN TAKEN UNDER LEGISLATIVE AUTHORITY.    THE
COMMISSIONER OF INTERNAL REVENUE HAVING ASSESSED A DEFICIENCY TAX
AGAINST PETITIONER IN RESPECT OF HIS SALARY, PETITIONER SOUGHT A
REDETERMINATION AT THE HANDS OF THE BOARD OF TAX APPEALS.  THAT BOARD
SUSTAINED THE COMMISSIONER AND DECREED A DEFICIENCY AGAINST PETITIONER
OF $256.27 FOR THE YEAR 1931.  UPON REVIEW, THE COURT BELOW AFFIRMED
THE DECREE OF THE BOARD.  85 F.(2D) 32.  WHILE THE SUM INVOLVED IS
SMALL, WE GRANTED THE WRIT OF CERTIORARI BECAUSE OF THE OBVIOUS
IMPORTANCE OF THE QUESTION INVOLVED. 

THE PHRASE "GOVERNMENTAL FUNCTIONS," AS IT HERE IS USED, HAS BEEN
QUALIFIED BY THIS COURT IN A VARIETY OF WAYS.  THUS, IN SOUTH CAROLINA
V. UNITED STATES, 199 U.S. 437, 461, IT WAS SUGGESTED THAT THE
EXEMPTION OF STATE AGENCIES AND INSTRUMENTALITIES FROM FEDERAL TAXATION
WAS LIMITED TO THOSE WHICH WERE OF A STRICTLY GOVERNMENTAL CHARACTER,
AND DID NOT EXTEND TO THOSE USED BY THE STATE IN CARRYING ON AN
ORDINARY PRIVATE BUSINESS.  IN FLINT V. STONE TRACY CO., 220 U.S. 107,
172, THE IMMUNITY FROM TAXATION WAS RELATED TO THE ESSENTIAL
GOVERNMENTAL FUNCTIONS OF THE STATE.  IN HELVERING V. POWERS, 293 U.S.
214, 225, WE SAID THAT THE STATE "CANNOT WITHDRAW SOURCES OF REVENUE
FROM THE FEDERAL TAXING POWER BY ENGAGING IN BUSINESSES WHICH
CONSTITUTE A DEPARTURE FROM USUAL GOVERNMENTAL FUNCTIONS AND TO WHICH,
BY REASON OF THEIR NATURE, THE FEDERAL TAXING POWER WOULD NORMALLY
EXTEND."  AND IMMUNITY IS NOT ESTABLISHED BECAUSE THE STATE HAS THE
POWER TO ENGAGE IN THE BUSINESS FOR WHAT THE STATE CONCEIVES TO BE THE
PUBLIC BENEFIT.  IDEM.  IN UNITED STATES V. CALIFORNIA, 297 U.S. 175,
185, THE SUGGESTED LIMIT OF THE FEDERAL TAXING POWER WAS IN RESPECT OF
ACTIVITIES IN WHICH THE STATES HAVE TRADITIONALLY ENGAGED. 

IN THE PRESENT CASE, UPON THE ONE SIDE, STRESS IS PUT UPON THE
ADJECTIVE "ESSENTIAL," AS USED IN THE FLINT V. STONE TRACY CASE, WHILE,
ON THE OTHER SIDE, IT IS CONTENDED THAT THIS QUALIFYING ADJECTIVE MUST
BE PUT ASIDE IN FAVOR OF WHAT IS THOUGHT TO BE THE GREATER REACH OF THE
WORD "USUAL," AS EMPLOYED IN THE POWERS CASE.  BUT THESE DIFFERENCES IN
PHRASEOLOGY, AND THE OTHERS JUST REFERRED TO, MUST NOT BE TOO LITERALLY
CONTRADISTINGUISHED.  IN NEITHER OF THE CASES CITED, WAS THE ADJECTIVE
USED AS AN EXCLUSIVE OR RIGID DELIMITATION.  FOR PRESENT PURPOSES,
HOWEVER, WE SHALL INQUIRE WHETHER THE ACTIVITY HERE IN QUESTION
CONSTITUTES AN ESSENTIAL GOVERNMENTAL FUNCTION WITHIN THE PROPER
MEANING OF THAT TERM; AND IN THAT VIEW DECIDE THE CASE. 

THERE PROBABLY IS NO TOPIC OF THE LAW IN RESPECT OF WHICH THE
DECISIONS OF THE STATE COURTS ARE IN GREATER CONFLICT AND CONFUSION
THAN THAT WHICH DEALS WITH THE DIFFERENTIATION BETWEEN THE GOVERNMENTAL
AND CORPORATE POWERS OF MUNICIPAL CORPORATIONS.  THIS CONDITION OF
CONFLICT AND CONFUSION IS CONFINED IN THE MAIN TO DECISIONS RELATING TO
LIABILITY IN TORT FOR THE NEGLIGENCE OF OFFICERS AND AGENTS OF THE
MUNICIPALITY.  IN THAT FIELD, NO DEFINITE RULE CAN BE EXTRACTED FROM
THE DECISIONS.  FN1  IT IS TRUE THAT IN MOST OF THE STATE COURTS,
INCLUDING THOSE IN THE STATE OF NEW YORK, IT IS HELD THAT THE OPERATION
OF WATER WORKS FALLS WITHIN THE CATEGORY OF CORPORATE ACTIVITIES; AND
THE CITY'S LIABILITY IS AFFIRMED IN TORT ACTIONS ARISING FROM
NEGLIGENCE IN SUCH OPERATION.  BUT THE RULE IN RESPECT OF SUCH CASES,
AS WE POINTED OUT IN TRENTON V. NEW JERSEY, 262 U.S. 182, 192, HAS BEEN
"APPLIED TO ESCAPE DIFFICULTIES, IN ORDER THAT INJUSTICE MAY NOT RESULT
FROM THE RECOGNITION OF TECHNICAL DEFENSES BASED UPON THE GOVERNMENTAL
CHARACTER OF SUCH CORPORATIONS"; AND THE RULE IS HOPELESSLY INDEFINITE,
PROBABLY FOR THAT VERY REASON. 

THIS IS NOT, HOWEVER, AN ACTION FOR PERSONAL INJURIES SOUNDING IN
TORT, BUT A PROCEEDING WHICH SEEKS IN EFFECT TO DETERMINE WHETHER
IMMUNITY FROM FEDERAL TAXATION, IN RESPECT OF THE ACTIVITY IN QUESTION,
ATTACHES IN FAVOR OF A STATE-CREATED MUNICIPALITY - AN OBJECTIVE SO
DIFFERENT IN CHARACTER FROM THAT SOUGHT IN A TORT ACTION AS TO SUGGEST
CAUTION IN APPLYING AS THE GUIDE TO A DECISION OF THE FORMER A LOCAL
RULE OF LAW JUDICIALLY ADOPTED IN ORDER TO AVOID SUPPOSED INJUSTICES
WHICH WOULD OTHERWISE RESULT IN THE LATTER.  WE HAVE HELD, FOR EXAMPLE,
THAT THE SALE OF MOTORCYCLES TO A MUNICIPAL CORPORATION FOR USE IN ITS
POLICE SERVICE IS NOT SUBJECT TO FEDERAL TAXATION, BECAUSE THE
MAINTENANCE OF SUCH A SERVICE IS A GOVERNMENTAL FUNCTION.  INDIAN
MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570, 579.  AND WHILE IT IS
TRUE THAT THE WEIGHT OF AUTHORITY IN TORT ACTIONS ACCORDS WITH THAT
VIEW, THERE ARE STATE DECISIONS WHICH AFFIRM THE LIABILITY OF A
MUNICIPALITY FOR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF ITS
POLICE OFFICIALS UNDER THE CIRCUMSTANCES PRESENTED IN THE RESPECTIVE
CASES DEALT WITH.  FN2  NEVERTHELESS, OUR DECISION IN THE INDIAN
MOTOCYCLE CASE DID NOT REST IN THE SLIGHTEST DEGREE UPON A
CONSIDERATION OF THE STATE RULE IN RESPECT OF TORT ACTIONS, BUT UPON A
BROAD CONSIDERATION OF THE IMPLIED CONSTITUTIONAL IMMUNITY ARISING FROM
THE DUAL CHARACTER OF OUR NATIONAL AND STATE GOVERNMENTS. 

THE RULE IN RESPECT OF MUNICIPAL LIABILITY IN TORT IS A LOCAL MATTER;
AND WHETHER IT SHALL BE STRICT OR LIBERAL OR DENIED ALTOGETHER IS FOR
THE STATE WHICH CREATED THE MUNICIPALITY ALONE TO DECIDE (DETROIT V.
OSBORNE, 135 U.S. 492, 497-498) - PROVIDED, OF COURSE, THE FEDERAL
CONSTITUTION BE NOT INFRINGED.  BUT A FEDERAL TAX IN RESPECT OF THE
ACTIVITIES OF A STATE OR A STATE AGENCY IS AN IMPOSITION BY ONE
GOVERNMENT UPON THE ACTIVITIES OF ANOTHER, AND MUST ACCORD WITH THE
IMPLIED FEDERAL REQUIREMENT THAT STATE AND LOCAL GOVERNMENTAL FUNCTIONS
BE NOT BURDENED THEREBY.  SO LONG AS OUR PRESENT DUAL FORM OF
GOVERNMENT ENDURES, THE STATES, IT MUST NEVER BE FORGOTTEN, "ARE AS
INDEPENDENT OF THE GENERAL GOVERNMENT AS THAT GOVERNMENT WITHIN ITS
SPHERE IS INDEPENDENT OF THE STATES."  COLLECTOR V. DAY, 11 WALL.  113,
124.  AND, AS IT WAS SAID IN TEXAS V. WHITE, 7 WALL.  700, 725, AND
OFTEN HAS BEEN REPEATED - "THE PRESERVATION OF THE STATES, AND THE
MAINTENANCE OF THEIR GOVERNMENTS, ARE AS MUCH WITHIN THE DESIGN AND
CARE OF THE CONSTITUTION AS THE PRESERVATION OF THE UNION AND THE
MAINTENANCE OF THE NATIONAL GOVERNMENT."  THE UNIMPAIRED EXISTENCE OF
BOTH GOVERNMENTS IS EQUALLY ESSENTIAL.  IT IS TO THAT HIGH END THAT
THIS COURT HAS RECOGNIZED THE RULE, WHICH RESTS UPON NECESSARY
IMPLICATION, THAT NEITHER MAY TAX THE GOVERNMENTAL MEANS AND
INSTRUMENTALITIES OF THE OTHER.  COLLECTOR V. DAY, SUPRA, P. 127.  IN
THE LIGHT OF THESE CONSIDERATIONS, IT FOLLOWS THAT THE QUESTION HERE
PRESENTED IS NOT CONTROLLED BY LOCAL LAW BUT IS A QUESTION OF NATIONAL
SCOPE TO BE RESOLVED IN HARMONY WITH IMPLIED CONSTITUTIONAL PRINCIPLES
OF GENERAL APPLICATION.  COMPARE WORKMAN V. NEW YORK CITY, 179 U.S.
552, 557.  THIS INDICATED DISSIMILARITY CONSTITUTES A DISTINCTION WHICH
IS FUNDAMENTAL; AND WE PUT ASIDE THE STATE DECISIONS IN TORT ACTIONS AS
INAPPOSITE.  COMPARE ATLANTIC CLEANERS & DYERS V. UNITED STATES, 286
U.S. 427, 433 ET SEQ. 

WE THUS COME TO A SITUATION, WHICH THE COURTS HAVE FREQUENTLY BEEN
CALLED UPON TO MEET, WHERE THE ISSUE CANNOT BE DECIDED IN ACCORDANCE
WITH AN ESTABLISHED FORMULA, BUT WHERE POINTS ALONG THE LINE "ARE FIXED
BY DECISIONS THAT THIS OR THAT CONCRETE CASE FALLS ON THE NEARER OR
FARTHER SIDE."  HUDSON WATER CO. V. MCCARTER, 209 U.S. 349, 355.  WE
ARE, OF COURSE, QUITE ABLE TO SAY THAT CERTAIN FUNCTIONS EXERCISED BY A
CITY ARE CLEARLY GOVERNMENTAL - THAT IS, LIE UPON THE NEARER SIDE OF
THE LINE - WHILE OTHERS ARE JUST AS CLEARLY PRIVATE OR CORPORATE IN
CHARACTER, AND LIE UPON THE FARTHER SIDE.  BUT BETWEEN THESE TWO
OPPOSITE CLASSES, THERE IS A ZONE OF DEBATABLE GROUND WITHIN WHICH THE
CASES MUST BE PUT UPON ONE SIDE OR THE OTHER OF THE LINE BY WHAT THIS
COURT HAS CALLED THE GRADUAL PROCESS OF HISTORICAL AND JUDICIAL
"INCLUSION AND EXCLUSION."  CONTINENTAL BANK V. CHICAGO, R.I. & P. RY.,
294 U.S. 648, 670, AND CASES CITED. 

WE THINK, THEREFORE, THAT IT WILL BE WISE TO CONFINE, AS STRICTLY AS
POSSIBLE, THE PRESENT INQUIRY TO THE NECESSITIES OF THE IMMEDIATE ISSUE
HERE INVOLVED, AND NOT, BY AN ATTEMPT TO FORMULATE ANY GENERAL TEST,
RISK EMBARRASSING THE DECISION OF CASES IN RESPECT OF MUNICIPAL
ACTIVITIES OF A DIFFERENT KIND WHICH MAY ARISE IN THE FUTURE.  CF.
EUCLID V. AMBLER REALTY CO., 272 U.S. 365, 397; METCALF & EDDY V.
MITCHELL, 269 U.S. 514, 523.  IN THE CASE LAST NAMED WE HAD OCCASION TO
POINT OUT THE DIFFICULTY, ALBEIT THE NECESSITY, AS CASES ARISE WITHIN
THE DOUBTFUL ZONE, OF DRAWING THE LINE WHICH SEPARATES THOSE ACTIVITIES
WHICH HAVE SOME RELATION TO GOVERNMENT BUT ARE SUBJECT TO TAXATION FROM
THOSE WHICH ARE IMMUNE.  "EXPERIENCE HAS SHOWN," WE SAID, "THAT THERE
IS NO FORMULA BY WHICH THAT LINE MAY BE PLOTTED WITH PRECISION IN
ADVANCE.  BUT RECOURSE MAY BE HAD TO THE REASON UPON WHICH THE RULE
RESTS, AND WHICH MUST BE THE GUIDING PRINCIPLE TO CONTROL ITS
OPERATION.  ITS ORIGIN WAS DUE TO THE ESSENTIAL REQUIREMENT OF OUR
CONSTITUTIONAL SYSTEM THAT THE FEDERAL GOVERNMENT MUST EXERCISE ITS
AUTHORITY WITHIN THE TERRITORIAL LIMITS OF THE STATES; AND IT RESTS ON
THE CONVICTION THAT EACH GOVERNMENT, IN ORDER THAT IT MAY ADMINISTER
ITS AFFAIRS WITHIN ITS OWN SPHERE, MUST BE LEFT FREE FROM UNDUE
INTERFERENCE BY THE OTHER." 

THE PUBLIC INTEREST IN THE CONSERVATION AND DISTRIBUTION OF WATER FOR
A GREAT VARIETY OF PURPOSES - RANGING FROM ORDINARY AGRICULTURAL,
DOMESTIC AND SANITARY USES, TO THE PRESERVATION OF HEALTH AND OF LIFE
ITSELF - IS OBVIOUS AND WELL SETTLED.  FOR THE MODERN CITY, SUCH
CONSERVATION AND DISTRIBUTION OF WATER IN SUFFICIENT QUANTITY AND IN A
STATE OF PURITY IS AS VITAL AS AIR.  AND THIS VITAL NECESSITY BECOMES
MORE AND MORE APPARENT AND PRESSING AS CITIES INCREASE IN POPULATION
AND DENSITY OF POPULATION.  IT HAS FOUND, SO FAR, ITS CULMINATING POINT
IN THE VAST AND SUPREME NEEDS OF THE CITY OF NEW YORK. 

ONE OF THE MOST STRIKING ILLUSTRATIONS OF THE PUBLIC INTEREST IN THE
USE OF WATER AND THE GOVERNMENTAL POWER TO DEAL WITH IT IS SHOWN IN
LEGISLATION AND JUDICIAL PRONOUNCEMENT WITH RESPECT TO THE ARID-LAND
STATES OF THE FAR WEST.  IN SOME OF THEM, THE STATE CONSTITUTION
ASSERTS PUBLIC OWNERSHIP OF ALL UNAPPROPRIATED NONNAVIGABLE WATERS.  IN
UTAH, WHILE IT WAS STILL A TERRITORY, A STATUTE CONFERRED THE RIGHT
UPON INDIVIDUAL LAND OWNERS TO CONDEMN RIGHTS-OF-WAY ACROSS THE LANDS
OF OTHERS IN ORDER TO CONVEY WATER TO THE FORMER FOR IRRIGATION
PURPOSES, AND DECLARED THAT SUCH CONDEMNATION WAS FOR A "PUBLIC USE." 
THIS COURT UPHELD THE STATUTE.  CLARK V. NASH, 198 U.S. 361.  WE SAID
THAT WHAT IS A PUBLIC USE MAY DEPEND UPON THE FACTS SURROUNDING THE
SUBJECT; POINTED OUT THE VITAL NEED OF WATER FOR IRRIGATION IN THE ARID
LAND STATES, A NEED WHICH DID NOT EXIST IN THE STATES OF THE EAST AND
WHERE, CONSEQUENTLY, A DIFFERENT RULE OBTAINED; AND HELD THAT THE COURT
MUST RECOGNIZE THE DIFFERENCE OF CLIMATE AND SOIL WHICH RENDERED
NECESSARY DIFFERING LAWS IN THE TWO GROUPS OF STATES. 

MANY YEARS AGO, CONGRESS, RECOGNIZING THIS DIFFERENCE, PASSED THE
DESERT LAND ACT (C. 107, 19 STAT. 377), BY WHICH, AMONG OTHER THINGS,
THE WATERS UPON THE PUBLIC DOMAIN IN THE ARID-LAND STATES AND
TERRITORIES WERE DEDICATED TO THE USE OF THE PUBLIC FOR IRRIGATION AND
OTHER PURPOSES.  FOLLOWING THIS ACT, IF NOT BEFORE, ALL NONNAVIGABLE
WATERS THEN ON AND BELONGING TO THAT PART OF THE NATIONAL DOMAIN BECAME
PUBLICI JURIS, SUBJECT TO THE PLENARY CONTROL OF THE ARID-LAND STATES
AND TERRITORIES WITH THE RIGHT TO DETERMINE TO WHAT EXTENT THE RULE OF
APPROPRIATION OR THE COMMON-LAW RULE IN RESPECT OF RIPARIAN RIGHTS
SHOULD OBTAIN.  CALIFORNIA OREGON POWER CO. V. BEAVER CEMENT CO., 295
U.S. 142, 155 ET SEQ. AND IN KANSAS V. COLORADO, 206 U.S. 46, 94, THIS
COURT ENTERTAINED AND DECIDED A CONTROVERSY BETWEEN TWO STATES
INVOLVING THE RIGHT OF PRIVATE APPROPRIATORS IN COLORADO TO DIVERT
WATERS FOR THE IRRIGATION OF LANDS IN THAT STATE FROM A RIVER NATURALLY
AND CUSTOMARILY FLOWING INTO THE STATE OF KANSAS.  IT WAS HELD (P. 99)
THAT SUCH A CONTROVERSY RISES "ABOVE A MERE QUESTION OF LOCAL PRIVATE
RIGHT AND INVOLVES A MATTER OF STATE INTEREST, AND MUST BE CONSIDERED
FROM THAT STANDPOINT."  CF. HUDSON WATER CO. V. MCCARTER, 209 U.S. 349,
355; NEW ORLEANS GAS CO. V. DRAINAGE COMM'N, 197 U.S. 453, 460; HOUCK
V. LITTLE RIVER DISTRICT, 239 U.S. 254, 261. 

IN NEW ORLEANS V. MORRIS, 105 U.S. 600, 602, THE CITY HAD CONVEYED
ITS WATER WORKS TO A CORPORATION FORMED FOR THE PURPOSE OF MAINTAINING
AND ENLARGING THEM.  THE CITY RECEIVED AS CONSIDERATION SHARES OF
STOCK, WHICH A STATE STATUTE DECLARED SHOULD NOT BE LIABLE TO SEIZURE
FOR THE DEBTS OF THE CITY.  IT WAS HELD THE STATUTE DID NOT IMPAIR THE
OBLIGATION OF ANY CONTRACT, SINCE THE SHARES REPRESENTED THE CITY'S
OWNERSHIP IN THE WATER WORKS WHICH HAD, BEFORE THE ENACTMENT OF THE
STATUTE, BEEN EXEMPTED FROM SEIZURE AND SALE.  THIS RULING WAS PUT UPON
THE GROUND THAT THE WATER WORKS WERE OF SUCH PUBLIC UTILITY AND
NECESSITY THAT THEY WERE HELD IN TRUST FOR THE USE OF THE CITIZENS THE
SAME AS PUBLIC PARKS AND PUBLIC BUILDINGS. 

WHILE THESE CASES DO NOT DECIDE, THEY PLAINLY SUGGEST, THAT MUNICIPAL
WATER WORKS CREATED AND OPERATED IN ORDER TO SUPPLY THE NEEDS OF A CITY
AND ITS INHABITANTS ARE PUBLIC WORKS AND THEIR OPERATION ESSENTIALLY
GOVERNMENTAL IN CHARACTER.  OTHER DECISIONS OF THIS COURT, HOWEVER,
MORE DIRECTLY SUPPORT THAT CONCLUSION.    WE RECENTLY HAVE HELD THAT
THE BANKRUPTCY STATUTES COULD NOT BE EXTENDED TO MUNICIPALITIES OR
OTHER POLITICAL SUBDIVISIONS OF A STATE.  ASHTON V. CAMERON COUNTY
WATER DISTRICT, 298 U.S. 513.  THE RESPONDENT THERE WAS A WATER
IMPROVEMENT DISTRICT ORGANIZED BY LAW TO FURNISH WATER FOR IRRIGATION
AND DOMESTIC USES.  WE SAID (PP. 527-528) THAT RESPONDENT WAS A
POLITICAL SUBDIVISION OF THE STATE "CREATED FOR THE LOCAL EXERCISE OF
HER SOVEREIGN POWERS,  ...  ITS FISCAL AFFAIRS ARE THOSE OF THE STATE,
NOT SUBJECT TO CONTROL OR INTERFERENCE BY THE NATIONAL GOVERNMENT,
UNLESS THE RIGHT SO TO DO IS DEFINITELY ACCORDED BY THE FEDERAL
CONSTITUTION."  IN SUPPORT OF THAT HOLDING, FORMER DECISIONS OF THIS
COURT WITH RESPECT TO THE IMMUNITY OF STATES AND MUNICIPALITIES FROM
FEDERAL TAXATION WERE RELIED UPON AS APPOSITE.  THE QUESTION WHETHER
THE DISTRICT EXERCISED GOVERNMENTAL OR MERELY CORPORATE FUNCTIONS WAS
DISTINCTLY IN ISSUE.  THE PETITION IN BANKRUPTCY ALLEGED THAT THE
DISTRICT WAS CREATED WITH POWER TO PERFORM "THE PROPRIETARY AND/OR
CORPORATE FUNCTION OF FURNISHING WATER FOR IRRIGATION AND DOMESTIC USES
..."  THE DISTRICT JUDGE HELD THAT THE DISTRICT WAS CREATED FOR THE
LOCAL EXERCISE OF STATE SOVEREIGN POWERS; THAT IT WAS EXERCISING "A
GOVERNMENTAL FUNCTION"; THAT ITS PROPERTY WAS PUBLIC PROPERTY; THAT IT
WAS NOT CARRYING ON PRIVATE BUSINESS, BUT PUBLIC BUSINESS.  THAT COURT,
HAVING DENIED THE PETITION FOR WANT OF JURISDICTION, THE DISTRICT
SUBMITTED A MOTION FOR A NEW TRIAL IN WHICH IT ASSIGNED, AMONG OTHER
THINGS, THAT THE COURT ERRED IN HOLDING THAT PETITIONER WAS CREATED FOR
THE PURPOSE OF PERFORMING GOVERNMENTAL FUNCTIONS, "FOR THE REASON THAT
THE COURTS OF TEXAS, AS WELL AS THE OTHER COURTS IN THE NATION, HAVE
UNIFORMLY HELD THAT THE FURNISHING OF WATER FOR IRRIGATION WAS PURELY A
PROPRIETARY FUNCTION  ..."  SUBSTANTIALLY THE SAME THING WAS REPEATED
IN OTHER ASSIGNMENTS OF ERROR.  IN THE PETITION FOR REHEARING IN THIS
COURT, THE DISTRICT CHALLENGED OUR DETERMINATION THAT RESPONDENT WAS A
POLITICAL SUBDIVISION OF THE STATE "CREATED FOR THE LOCAL EXERCISE OF
HER SOVEREIGN POWERS," AND ASSERTED TO THE CONTRARY THAT THE FACTS
WOULD DEMONSTRATE THAT "RESPONDENT IS A CORPORATION ORGANIZED FOR
ESSENTIALLY PROPRIETARY PURPOSES."  IT IS NOT OPEN TO DISPUTE THAT THE
STATEMENTS QUOTED FROM OUR OPINION IN THE ASHTON CASE WERE MADE AFTER
DUE CONSIDERATION, AND THE CASE ITSELF DECIDED AND THE REHEARING DENIED
IN THE LIGHT OF THE ISSUE THUS DEFINITELY PRESENTED.  COMPARE BINGHAM
V. UNITED STATES, 296 U.S. 211, 218-219. 

"NO HIGHER POLICE DUTY RESTS UPON MUNICIPAL AUTHORITY," THIS COURT
SAID IN COLUMBUS V. MERCANTILE TRUST CO., 218 U.S. 645, 658, "THAN THAT
OF FURNISHING AN AMPLE SUPPLY OF PURE AND WHOLESOME WATER FOR PUBLIC
AND DOMESTIC USES.  THE PRESERVATION OF THE HEALTH OF THE COMMUNITY IS
BEST OBTAINED BY THE DISCHARGE OF THIS DUTY, TO SAY NOTHING OF THE
PRESERVATION OF PROPERTY FROM FIRE, SO CONSTANT AN ATTENDANT UPON
CROWDED CONDITIONS OF MUNICIPAL LIFE." 

IN DUNBAR V. NEW YORK CITY, 251 U.S. 516, WE SUSTAINED A CHARTER
PROVISION GIVING A LIEN FOR WATER CHARGES UPON A BUILDING IN WHICH THE
WATER HAD BEEN USED, ALTHOUGH THE CHARGES HAD BEEN INCURRED BY TENANTS
AND NOT BY THE OWNER, SAYING - "AND AS A SUPPLY OF WATER IS NECESSARY
IT IS ONLY AN ORDINARY AND LEGAL EXERTION OF GOVERNMENT TO PROVIDE
MEANS FOR ITS COMPULSORY COMPENSATION." 

IN GERMAN ALLIANCE INS. CO. V. HOME WATER CO., 226 U.S. 220, THE CITY
OF SPARTANBURG HAD ENTERED INTO A CONTRACT WITH THE RESPONDENT BY WHICH
THE LATTER WAS EMPOWERED TO SUPPLY THE CITY AND ITS INHABITANTS WITH
WATER SUITABLE FOR FIRE, SANITARY AND DOMESTIC PURPOSES.  THE
PETITIONER HAD ISSUED A POLICY OF FIRE INSURANCE UPON CERTAIN PROPERTY,
WHICH WAS DESTROYED BY FIRE.  IT PAID THE AMOUNT OF THE LOSS, AND TOOK
AN ASSIGNMENT FROM THE INSURED OF ALL CLAIMS AND DEMANDS AGAINST ANY
PERSON ARISING FROM OR CONNECTED WITH THE LOSS.  IT BROUGHT SUIT
AGAINST THE RESPONDENT ON THE GROUND THAT THE FIRE COULD EASILY HAVE
BEEN EXTINGUISHED IF RESPONDENT HAD COMPLIED WITH ITS CONTRACT.  THIS
COURT HELD THAT THE ACTION WAS NOT MAINTAINABLE FOR REASONS WHICH
APPEAR IN THE OPINION.  THE CITY, IT WAS SAID, WAS UNDER NO LEGAL
OBLIGATION TO FURNISH WATER; AND IT DID NOT SUBJECT ITSELF TO A NEW OR
GREATER LIABILITY BECAUSE IT VOLUNTARILY UNDERTOOK TO DO SO (PP. 227
228).  "IT ACTED IN A GOVERNMENTAL CAPACITY, AND WAS NO MORE
RESPONSIBLE FOR FAILURE IN THAT RESPECT THAN IT WOULD HAVE BEEN FOR
FAILURE TO FURNISH ADEQUATE POLICE PROTECTION." 

WE CONCLUDE THAT THE ACQUISITION AND DISTRIBUTION OF A SUPPLY OF
WATER FOR THE NEEDS OF THE MODERN CITY INVOLVE THE EXERCISE OF
ESSENTIAL GOVERNMENTAL FUNCTIONS, AND THIS CONCLUSION IS FORTIFIED BY A
CONSIDERATION OF THE PUBLIC USES TO WHICH THE WATER IS PUT.  WITHOUT
SUCH A SUPPLY, PUBLIC SCHOOLS, PUBLIC SEWERS SO NECESSARY TO PRESERVE
HEALTH, FIRE DEPARTMENTS, STREET SPRINKLING AND CLEANING, PUBLIC
BUILDINGS, PARKS, PLAYGROUNDS, AND PUBLIC BATHS, COULD NOT EXIST.  AND
THIS IS EQUIVALENT, IN A VERY REAL SENSE, TO SAYING THAT THE CITY
ITSELF WOULD THEN DISAPPEAR.  MORE THAN ONE-FOURTH OF THE WATER
FURNISHED BY THE CITY OF NEW YORK, WE ARE TOLD BY THE RECORD, IS
UTILIZED FOR THESE PUBLIC PURPOSES.  CERTAINLY, THE MAINTENANCE OF
PUBLIC SCHOOLS, A FIRE DEPARTMENT, A SYSTEM OF SEWERS, PARKS AND PUBLIC
BUILDINGS, TO SAY NOTHING OF OTHER PUBLIC FACILITIES AND USES, CALLS
FOR THE EXERCISE OF GOVERNMENTAL FUNCTIONS.  AND SO FAR AS THESE ARE
CONCERNED, THE WATER SUPPLY IS A NECESSARY AUXILIARY, AND, THEREFORE,
PARTAKES OF THEIR NATURE.  NEW YORK EX REL. ROGERS V. GRAVES, 299 U.S.
401, 406.  MOREOVER, THE HEALTH AND COMFORT OF THE CITY'S POPULATION OF
7,000,000 SOULS, AND IN SOME DEGREE THEIR VERY EXISTENCE, ARE DEPENDENT
UPON AN ADEQUATE SUPPLY OF PURE AND WHOLESOME WATER.  IT MAY BE, AS IT
IS SUGGESTED, THAT PRIVATE CORPORATIONS WOULD BE ABLE AND WILLING TO
UNDERTAKE TO PROVIDE A SUPPLY OF WATER FOR ALL PURPOSES; BUT IF THE
STATE AND CITY OF NEW YORK BE OF OPINION, AS THEY EVIDENTLY ARE, THAT
THE SERVICE SHOULD NOT BE ENTRUSTED TO PRIVATE HANDS BUT SHOULD BE
RENDERED BY THE CITY ITSELF AS AN APPROPRIATE MEANS OF DISCHARGING ITS
DUTY TO PROTECT THE HEALTH, SAFETY AND LIVES OF ITS INHABITANTS, WE DO
NOT DOUBT THAT IT MAY DO SO IN THE EXERCISE OF ITS ESSENTIAL
GOVERNMENTAL FUNCTIONS. 

WE FIND NOTHING THAT DETRACTS FROM THIS VIEW IN THE FACT THAT IN
FORMER TIMES THE BUSINESS OF FURNISHING WATER TO URBAN COMMUNITIES,
INCLUDING NEW YORK, IN FACT WAS LEFT LARGELY, OR EVEN ENTIRELY, TO
PRIVATE ENTERPRISE.  THE TENDENCY FOR MANY YEARS HAS BEEN IN THE
OPPOSITE DIRECTION, UNTIL NOW IN NEARLY ALL THE LARGER CITIES OF THE
COUNTRY THE DUTY HAS BEEN ASSUMED BY THE MUNICIPAL AUTHORITIES. 
GOVERNMENTAL FUNCTIONS ARE NOT TO BE REGARDED AS NON-EXISTENT BECAUSE
THEY ARE HELD IN ABEYANCE, OR BECAUSE THEY LIE DORMANT, FOR A TIME.  IF
THEY BE BY THEIR NATURE GOVERNMENTAL, THEY ARE NONE THE LESS SO BECAUSE
THE USE OF THEM HAS HAD A RECENT BEGINNING. 

THE PRINCIPLE FINDS ILLUSTRATION IN OUR DECISION IN SHOEMAKER V.
UNITED STATES, 147 U.S. 282, 297, WHERE IT WAS HELD THAT LAND TAKEN BY
AN EXERCISE OF THE POWER OF EMINENT DOMAIN FOR THE ESTABLISHMENT OF
ROCK CREEK PARK IN THE DISTRICT OF COLUMBIA WAS TAKEN FOR A PUBLIC USE,
AND THAT THE AMOUNT REQUIRED TO BE PAID WAS VALIDLY ASSESSED UPON LANDS
IN THE DISTRICT SPECIALLY BENEFITED THEREBY.  AT THE BEGINNING OF THE
OPINION IN THAT CASE, THIS COURT SAID:  "IN THE MEMORY OF MEN NOW
LIVING, A PROPOSITION TO TAKE PRIVATE PROPERTY, WITHOUT THE CONSENT OF
ITS OWNER, FOR A PUBLIC PARK, AND TO ASSESS A PROPORTIONATE PART OF THE
COST UPON REAL ESTATE BENEFITED THEREBY, WOULD HAVE BEEN REGARDED AS A
NOVEL EXERCISE OF LEGISLATIVE POWER."  IT WAS POINTED OUT THAT CENTRAL
PARK IN NEW YORK WAS THE FIRST PLACE PROVIDED FOR THE INHABITANTS OF
ANY CITY OR TOWN IN THE UNITED STATES AS A PLEASURE GROUND FOR REST AND
EXERCISE IN THE OPEN AIR, BUT THAT IN 1892, WHEN THE OPINION WAS
WRITTEN, THERE WAS SCARCELY A CITY OF ANY CONSIDERABLE SIZE IN THE
COUNTRY THAT DID NOT HAVE, OR HAD NOT PROJECTED, SUCH PARKS. 

RESPONDENT CONTENDS THAT THE MUNICIPALITY, IN SUPPLYING WATER TO ITS
INHABITANTS, IS ENGAGED IN SELLING WATER FOR PROFIT; AND SEEMS TO THINK
THAT THIS, IF TRUE, STAMPS THE OPERATION AS PRIVATE AND NOT
GOVERNMENTAL IN CHARACTER.  WE FIRST PAUSE TO OBSERVE THAT THE OVERHEAD
DUE TO THE ENORMOUS COST OF THE SYSTEM, AND THE FACT THAT SO LARGE A
PROPORTION OF THE WATER IS DIVERTED FOR PUBLIC USE, RATHER PLAINLY
SUGGESTS THAT NO REAL PROFIT IS LIKELY TO RESULT.  AND TO SAY THAT,
BECAUSE THE CITY MAKES A CHARGE FOR FURNISHING WATER TO PRIVATE
CONSUMERS, IT FOLLOWS THAT THE OPERATION OF THE WATER WORKS IS
CORPORATE AND NOT GOVERNMENTAL, IS TO BEG THE QUESTION.  WHAT THE CITY
IS ENGAGED IN DOING IN THAT RESPECT IS RATHER RENDERING A SERVICE THAN
SELLING A COMMODITY.  IF THAT SERVICE BE GOVERNMENTAL IT DOES NOT
BECOME PRIVATE BECAUSE A CHARGE IS MADE FOR IT, OR A PROFIT REALIZED. 
A STATE, FOR EXAMPLE, CONSTRUCTS AND OPERATES A HIGHWAY.  IT MAY, IF IT
CHOOSE, EXACT COMPENSATION FOR ITS USE FROM THOSE WHO TRAVEL OVER IT
(SEE BINGAMAN V. GOLDEN EAGLE LINES, 297 U.S. 626, 628); BUT THIS DOES
NOT DESTROY THE CLAIM THAT THE MAINTENANCE OF THE HIGHWAY IS A PUBLIC
AND GOVERNMENTAL FUNCTION.  THE STATE OR THE CITY MAY EXACT A TUITION
CHARGE FOR INSTRUCTION IN THE PUBLIC SCHOOLS; BUT THEREBY THE
MAINTENANCE OF THE PUBLIC SCHOOLS DOES NOT CEASE TO BE A FUNCTION OF
THE GOVERNMENT.  THE STATE EXACTS A FEE FOR ISSUING A LICENSE OR
GRANTING A PERMIT; FOR RECORDING A DEED; FOR RENDERING A VARIETY OF
SERVICES IN THE JUDICIAL DEPARTMENT.  DO THESE VARIOUS SERVICES THEREBY
LOSE THEIR CHARACTER AS GOVERNMENTAL FUNCTIONS?  THE FEDERAL POST
OFFICE DEPARTMENT CHARGES FOR ITS SERVICES; BUT NO ONE WOULD QUESTION
THE FACT THAT ITS OPERATION CALLS INTO EXERCISE A GOVERNMENTAL
FUNCTION. 

THE CONTENTION IS MADE THAT OUR DECISIONS IN SOUTH CAROLINA V. UNITED
STATES, 199 U.S. 437, 461, 462, AND FLINT V. STONE TRACY CO., 220 U.S.
107, 172, ARE TO THE EFFECT THAT THE SUPPLYING OF WATER IS NOT A
GOVERNMENTAL FUNCTION; BUT IN NEITHER CASE WAS THAT QUESTION IN ISSUE,
AND WHAT WAS SAID BY THE COURT WAS WHOLLY UNNECESSARY TO THE
DISPOSITION OF THE CASES AND MERELY BY WAY OF ILLUSTRATION. 
EXPRESSIONS OF THAT KIND MAY BE RESPECTED, BUT DO NOT CONTROL IN A
SUBSEQUENT CASE WHEN THE PRECISE POINT IS PRESENTED FOR DECISION. 
OSAKA SHOSEN KAISHA LINE V. UNITED STATES, ANTE, PP. 98, 103, AND
AUTHORITIES CITED.  THE PRECISE POINT IS PRESENTED HERE, HAS BEEN FULLY
CONSIDERED, AND IS DECIDED OTHERWISE.  NEITHER OHIO V. HELVERING, 292
U.S. 360, NOR HELVERING V. POWERS, 293 U.S. 214, RELIED UPON BY
RESPONDENT, IS IN POINT.  WHAT HAS ALREADY BEEN SAID DISTINGUISHES
THOSE CASES FROM THE ONE NOW UNDER CONSIDERATION. 

WE HAVE NOT FAILED TO GIVE CAREFUL CONSIDERATION TO BLAIR V. BYERS,
35 F.(2D) 326, AND DENMAN V. COMMISSIONER, 73 F.(2D) 193, BOTH OF WHICH
TAKE A VIEW CONTRARY TO THAT WHICH WE HAVE EXPRESSED.  TO THE EXTENT OF
THIS CONFLICT, THOSE CASES ARE DISAPPROVED.  BOTH RELY ON SOUTH
CAROLINA V. UNITED STATES AND FLINT V. STONE TRACY CO., SUPRA, WHICH WE
HAVE ALREADY DISTINGUISHED.  REVERSED. 

FN1  THIS IS BROUGHT OUT IN A CAREFUL AND DETAILED REVIEW BY
PROFESSOR BORCHARD IN THAT PORTION OF HIS GENERAL DISCUSSION OF
"GOVERNMENT LIABILITY IN TORT" DEALING WITH MUNICIPAL CORPORATIONS, TO
BE FOUND IN (1924-5) 34 YALE L.J. 129-143, 229-258, IN THE COURSE OF
WHICH HE SAYS (P. 129): "DISAGREEMENT AMONG THE COURTS AS TO MANY
CUSTOMARY MUNICIPAL ACTS AND FUNCTIONS MAY ALMOST BE SAID TO BE MORE
COMMON THAN AGREEMENT AND THE ELABORATION OF THE VARYING JUSTIFICATIONS
FOR THEIR CLASSIFICATION IS EVEN LESS SATISFYING TO ANY DEMAND FOR
PRINCIPLE IN THE LAW.  INDEED, SO HOPELESS DID THE EFFORT OF THE COURTS
TO MAKE AN APPROPRIATE CLASSIFICATION OF FUNCTIONS APPEAR TO THE
SUPREME COURT OF SOUTH CAROLINA THAT THEY DETERMINED TO ABANDON THE
DISTINCTION BETWEEN GOVERNMENTAL AND CORPORATE ACTS." 

FN2  SEE HERRON V. PITTSBURGH, 204 PA. 509, 513; 54 ATL. 311; JONES
V. SIOUX CITY, 185 IOWA 1178, 1185; 170 N.W. 445; TWIST V. ROCHESTER,
55 N.Y. SUPP. 850.  COMPARE KUNZ V. TROY, 104 N.Y. 344, 348; 10 N.E.
442, WITH ALTVATER V. MAYOR OF BALTIMORE, 31 MD. 462. 

MR. JUSTICE STONE AND MR. JUSTICE CARDOZO, CONCURRING IN THE RESULT: 

WE CONCUR IN THE RESULT UPON THE GROUND THAT THE PETITIONER HAS
BROUGHT HIMSELF WITHIN THE TERMS OF THE EXEMPTION PRESCRIBED BY
TREASURY REGULATION 74, ARTICLE 643, WHICH FOR THE PURPOSES OF THIS
CASE MAY BE ACCEPTED AS VALID, ITS VALIDITY NOT BEING CHALLENGED BY
COUNSEL FOR THE GOVERNMENT. 

IN THE ABSENCE OF SUCH A CHALLENGE NO OPINION IS EXPRESSED AS TO THE
NEED FOR REVISION OF THE DOCTRINE OF IMPLIED IMMUNITIES DECLARED IN
EARLIER DECISIONS. 

WE LEAVE THAT SUBJECT OPEN. 

MR. JUSTICE ROBERTS, DISSENTING: 

I REGRET THAT I AM UNABLE TO CONCUR IN THE OPINION OF THE COURT.  I
THINK THAT THE JUDGMENT SHOULD BE AFFIRMED. 

THERE IS NO OCCASION NOW TO DISCUSS THE DUAL CHARACTER OF OUR FORM OF
GOVERNMENT, AND THE CONSEQUENT DUAL ALLEGIANCE OF A CITIZEN OF A STATE
TO HIS STATE AND TO THE UNITED STATES, TO ELABORATE THE THESIS THAT THE
INTEGRITY OF EACH GOVERNMENT IS TO BE MAINTAINED AGAINST INVASIONS BY
THE OTHER, OR TO REITERATE THAT THE IMPLIED IMMUNITY OF THE ONE FROM
TAXATION BY THE OTHER SPRINGS FROM THE NECESSITY THAT NEITHER SHALL, BY
THE EXERCISE OF THE POWER TO TAX, BURDEN, HINDER OR DESTROY THE
OPERATION OR EXISTENCE OF THE OTHER.  THERE IS UNIVERSAL RECOGNITION OF
THE TRUTH OF THESE TENETS, AND OF THEIR FUNDAMENTAL RELATION TO THE
PRESERVATION OF THE CONSTITUTIONAL FRAMEWORK OF THE NATION.  OUR
DIFFICULTIES ARISE, NOT IN THEIR STATEMENT AS GUIDING PRINCIPLES, BUT,
AS IN THIS INSTANCE, IN THEIR APPLICATION TO SPECIFIC CASES. 

THE FRANK ADMISSIONS OF COUNSEL AT THE BAR CONCERNING THE CONFUSION
AND APPARENT INCONSISTENCY IN ADMINISTRATIVE RULINGS AS TO THE
TAXABILITY OF COMPENSATION OF MUNICIPAL EMPLOYEES SEEMS TO CALL FOR AN
EQUALLY CANDID STATEMENT THAT OUR DECISIONS IN THE SAME FIELD HAVE NOT
FURNISHED THE EXECUTIVE A CONSISTENT RULE OF ACTION.  THE NEED OF
EQUITABLE AND UNIFORM ADMINISTRATION OF TAX LAWS, NATIONAL AND STATE,
AND THE JUST DEMAND OF THE CITIZEN THAT THE RULES GOVERNING THE
ENFORCEMENT OF THOSE LAWS SHALL BE ASCERTAINABLE REQUIRE AN ATTEMPT AT
RATIONALIZATION AND RESTATEMENT.    IT SEEMS TO ME THAT THE RECIPROCAL
RIGHTS AND IMMUNITIES OF THE NATIONAL AND A STATE GOVERNMENT MAY BE
SAFEGUARDED BY THE OBSERVANCE OF TWO LIMITATIONS UPON THEIR RESPECTIVE
POWERS OF TAXATION.  THESE ARE THAT THE EXACTIONS OF THE ONE MUST NOT
DISCRIMINATE AGAINST THE MEANS AND INSTRUMENTALITIES OF THE OTHER AND
MUST NOT DIRECTLY BURDEN THE OPERATIONS OF THAT OTHER.  TO STATE THESE
CANONS OTHERWISE:  AN EXACTION BY EITHER GOVERNMENT WHICH HITS THE
MEANS OR INSTRUMENTALITIES OF THE OTHER INFRINGES THE PRINCIPLE OF
IMMUNITY IF IT DISCRIMINATES AGAINST THEM AND IN FAVOR OF PRIVATE
CITIZENS OR IF THE BURDEN OF THE TAX BE PALPABLE AND DIRECT RATHER THAN
HYPOTHETIC AND REMOTE.  TESTED BY THESE CRITERIA THE IMPOSITION OF THE
CHALLENGED TAX IN THE INSTANT CASE WAS LAWFUL. 

THE PETITIONER IS A CITIZEN OF NEW YORK.  BY VIRTUE OF THAT STATUS HE
IS ALSO A CITIZEN OF THE UNITED STATES.  HE OWES ALLEGIANCE TO EACH
GOVERNMENT.  HE DERIVES INCOME FROM THE EXERCISE OF HIS PROFESSION. 
HIS OBLIGATION AS A CITIZEN IS TO CONTRIBUTE TO THE SUPPORT OF THE
GOVERNMENTS UNDER WHOSE JOINT PROTECTION HE LIVES AND PURSUES HIS
CALLING.  HIS LIABILITY TO FULFILL THAT OBLIGATION TO THE NATIONAL
GOVERNMENT BY PAYMENT OF INCOME TAX UPON HIS SALARY WOULD BE
UNQUESTIONED WERE IT NOT FOR THE CHARACTER OF HIS EMPLOYER.  IF THE
WATER WORKS OF NEW YORK CITY WERE OPERATED BY A PRIVATE CORPORATION
UNDER A PUBLIC FRANCHISE AND IF THE PETITIONER HELD A LIKE POSITION
WITH THE CORPORATION, THERE COULD BE NO QUESTION THAT THE IMPOSITION OF
A FEDERAL INCOME TAX, MEASURED BY HIS COMPENSATION, WOULD BE
JUSTIFIED.  IF PETITIONER, INSTEAD OF HOLDING A SO-CALLED OFFICIAL
POSITION UNDER THE MUNICIPAL GOVERNMENT OF NEW YORK CITY, WERE
CONSULTED FROM TIME TO TIME WITH RESPECT TO ITS WATER PROBLEMS HIS
COMPENSATION WOULD BE SUBJECT TO INCOME TAX.  (METCALF & EDDY V.
MITCHELL, 269 U.S. 514.)  HE IS PUT INTO AN UNTAXABLE CLASS UPON THE
THEORY THAT AS AN OFFICIAL OF THE MUNICIPALITY, WHICH IN TURN IS AN ARM
OF THE STATE, HE IS AN "INSTRUMENTALITY" OF THE STATE, AND TO TAX HIM
UPON HIS SALARY IS TO LAY A BURDEN UPON THE STATE GOVERNMENT WHICH,
HOWEVER TRIFLING, IS FORBIDDEN BY THE IMPLIED IMMUNITY OF THE STATE
FROM BURDENS IMPOSED BY THE UNITED STATES.  THE PETITIONER SEEKS TO
SHOW THE REALITY OF THE SUPPOSED BURDEN BY THE SUGGESTION THAT IF HIS
SALARY AND THE COMPENSATION OF OTHERS EMPLOYED BY THE CITY IS SUBJECT
TO FEDERAL INCOME TAX, THE MUNICIPALITY WILL BE COMPELLED TO PAY HIGHER
SALARIES IN ORDER TO OBTAIN THE SERVICES OF SUCH PERSONS AND THE
CONSEQUENT AGGREGATE INCREASE IN OUTLAY WILL ENTAIL A HEAVY FINANCIAL
LOAD.  WE KNOW, HOWEVER, THAT PROFESSIONAL SERVICES ARE OFFERED IN THE
INDUSTRIAL AND BUSINESS FIELD; AND THAT WHILE THERE IS NO HARD AND FAST
STANDARD OF COMPENSATION, AND MEN BARGAIN FOR THEIR REWARDS, SALARIES
DO BEAR SOME RELATION TO EXPERIENCE AND ABILITY.  THERE IS A MARKET IN
WHICH A PROFESSIONAL MAN OFFERS HIS SERVICES AND MUNICIPALITIES ARE
BIDDERS IN THAT MARKET.  WE KNOW FURTHER THAT THOSE IN PRIVATE
EMPLOYMENT HOLDING POSITIONS COMPARABLE TO THAT OF THE PETITIONER PAY A
TAX EQUAL TO THAT LEVIED UPON HIM.  IT IS CLEAR THAT ANY CONSIDERATION
OF THE PETITIONER'S IMMUNITY FROM FEDERAL INCOME TAX WOULD BE
ALTOGETHER REMOTE, IMPALPABLE AND UNASCERTAINABLE IN INFLUENCING HIM TO
ACCEPT A POSITION UNDER THE MUNICIPALITY RATHER THAN UNDER A PRIVATE
EMPLOYER. 

IN REASON AND LOGIC IT IS DIFFICULT TO DIFFERENTIATE THE PRESENT CASE
FROM THAT OF A PRIVATE CITIZEN WHO FURNISHES GOODS, PERFORMS WORK OR
RENDERS SERVICE TO A STATE OR A MUNICIPALITY UNDER A CONTRACT OR AN
OFFICER OR EMPLOYE OF A CORPORATION WHICH DOES THE SAME.  INCOME TAX ON
THE COMPENSATION PAID OR THE PROFIT REALIZED IS A NECESSARY COST
INCIDENT TO THE PERFORMANCE OF THE CONTRACT AND AS SUCH MUST BE TAKEN
INTO ACCOUNT IN FIXING THE CONSIDERATION DEMANDED OF THE CITY
GOVERNMENT.  IN QUITE AS REAL A SENSE, AS IN THIS CASE, THE TAXATION OF
INCOME OF SUCH PERSONS AND, AS WELL, THE TAXATION OF THE CORPORATION
ITSELF, LAYS A BURDEN UPON THE FUNDS OF THE STATE OR ITS AGENCY. 
NEVERTHELESS, THE COURTS HAVE REPEATEDLY DECLARED THAT THE DOCTRINE OF
IMMUNITY WILL NOT SERVE TO EXEMPT SUCH PERSONS OR CORPORATIONS FROM THE
EXACTION. 

THE IMPORTANCE OF THE CASE ARISES OUT OF THE FACT THAT THE CLAIMED
EXEMPTION MAY WELL EXTEND TO MILLIONS OF PERSONS (WHOSE WORK NOWISE
DIFFERS FROM THAT OF THEIR FELLOWS IN PRIVATE ENTERPRISE) WHO ARE
EMPLOYED BY MUNICIPAL SUBDIVISIONS AND DISTRICTS THROUGHOUT THE NATION
AND THAT, ON THE OTHER HAND, THE POWERS OF THE STATES TO TAX MAY BE
INHIBITED IN THE CASE OF HUNDREDS OF THOUSANDS OF SIMILAR EMPLOYES OF
FEDERAL AGENCIES OF ONE SORT OR ANOTHER.  SUCH EXEMPTIONS FROM TAXATION
OUGHT TO BE STRICTLY LIMITED.  THEY ARE ESSENTIALLY UNFAIR.  THEY ARE
UNSOUND BECAUSE FEDERAL OR STATE BUSINESS OUGHT TO BEAR ITS
PROPORTIONATE SHARE OF TAXATION IN ORDER THAT COMPARISON MAY BE MADE
BETWEEN THE COST OF CONDUCTING PUBLIC AND PRIVATE BUSINESS. 

WE ARE HERE CONCERNED ONLY WITH THE QUESTION OF THE TAXATION OF
SALARIES OR COMPENSATION RECEIVED BY THOSE RENDERING TO A MUNICIPALITY
SERVICES OF THE SAME KIND AS ARE RENDERED TO PRIVATE EMPLOYERS AND NEED
NOT GO BEYOND THE PRECISE ISSUE HERE PRESENTED.  WE HAVE NO CONCERN
WITH THE EXACTION OF A SALES TAX BY THE FEDERAL GOVERNMENT ON SALES TO
A STATE GOVERNMENT OR ONE OF ITS SUBDIVISIONS, OR THE REVERSE; WE ARE
NOT CALLED UPON TO DEFINE THE POWER TO LEVY TAXES UPON REAL PROPERTY
OWNED BY A STATE OR BY THE NATIONAL GOVERNMENT.  WE HAVE NO OCCASION TO
DISCUSS THE POWER OF EITHER GOVERNMENT TO IMPOSE EXCISE TAXES UPON
TRANSACTIONS OF THE OTHER OR UPON THE EVIDENCE OF SUCH TRANSACTIONS. 
NOR ARE WE CALLED UPON HERE TO DETERMINE THE VALIDITY OF A
NONDISCRIMINATORY TAX UPON THE SALARY OF A GOVERNMENTAL OFFICER WHOSE
DUTIES AND FUNCTIONS HAVE NO ANALOGUE IN THE CONDUCT OF A BUSINESS OR
THE PURSUIT OF A PROFESSION, BUT ARE BOTH PECULIAR TO AND ESSENTIAL TO
THE OPERATION OF GOVERNMENT.  THE SOLE QUESTION HERE IS WHETHER ONE
PERFORMING WORK OR RENDERING SERVICE OF A TYPE COMMONLY DONE OR
RENDERED IN ORDINARY COMMERCIAL LIFE FOR GAIN IS EXEMPT FROM THE NORMAL
BURDEN OF A TAX ON THAT GAIN FOR THE SUPPORT OF THE NATIONAL GOVERNMENT
BECAUSE HIS COMPENSATION IS PAID BY A STATE AGENCY INSTEAD OF A PRIVATE
EMPLOYER.  I THINK THE IMPOSITION OF A TAX UPON SUCH GAIN WHERE, AS
HERE, THE TAX FALLS EQUALLY UPON ALL EMPLOYED IN LIKE OCCUPATION, AND
WHERE THE SUPPOSED BURDEN OF THE TAX UPON STATE GOVERNMENT IS INDIRECT,
REMOTE, AND IMPONDERABLE, IS NOT INCONSISTENT WITH THE PRINCIPLE OF
IMMUNITY INHERENT IN THE CONSTITUTIONAL RELATION OF STATE AND NATION. 

MR. JUSTICE BRANDEIS JOINS IN THIS OPINION. 
..END :










AETNA LIFE INS. CO. V. HAWORTH, 300 U.S. 227 


NO. 446.  ARGUED FEBRUARY 4, 1937.  - DECIDED MARCH 1, 1937.  - 84
F.(2D) 695, REVERSED. 


1.  THE FEDERAL DECLARATORY JUDGMENT ACT DEALS WITH "CONTROVERSIES" IN
THE CONSTITUTIONAL SENSE AND IS PROCEDURAL ONLY.  P. 239. 

2.  IN THE EXERCISE OF ITS CONTROL OVER PRACTICE AND PROCEDURE OF THE
LOWER FEDERAL COURTS, CONGRESS IS NOT LIMITED TO TRADITIONAL FORMS OR
REMEDIES BUT MAY CREATE AND IMPROVE AS WELL AS ABOLISH OR RESTRICT.  P.
240. 

3.  A CONTROVERSY, IN THE CONSTITUTIONAL SENSE AND IN THE SENSE OF
THE DECLARATORY JUDGMENT ACT, MUST BE JUSTICIABLE - IT MUST BE DEFINITE
AND CONCRETE, TOUCHING THE LEGAL RELATION OF PARTIES HAVING ADVERSE
LEGAL INTERESTS - IT MUST BE A REAL AND SUBSTANTIAL CONTROVERSY
ADMITTING OF SPECIFIC RELIEF THROUGH A CONCLUSIVE DECREE, AS
DISTINGUISHED FROM AN OPINION ADVISING WHAT THE LAW WOULD BE UPON A
HYPOTHETICAL STATEMENT OF FACTS.  P. 240. 

4.  THERE MAY BE ADJUDICATION OF THE RIGHTS OF PARTIES WITHOUT AWARD
OF PROCESS OR PAYMENT OF DAMAGES AND WHERE NO ALLEGATION OF IRREPARABLE
INJURY IS MADE.  P. 241. 

5.  WHERE THE HOLDER OF LIFE INSURANCE POLICIES CLAIMS, UNDER
DISABILITY BENEFIT CLAUSES, THAT, NOTWITHSTANDING NONPAYMENT OF
PREMIUMS, THE POLICIES, BY REASON OF HIS TOTAL AND PERMANENT
DISABILITY, REMAIN IN FORCE AND ENTITLE HIM TO CASH BENEFITS, AND MAKES
REPEATED AND PERSISTENT DEMANDS UPON THE INSURER ACCORDINGLY; WHEREAS
THE INSURER DENIES THAT SUCH DISABILITY EXISTED AND INSISTS THAT THE
POLICIES HAVE LAPSED BECAUSE THE PREMIUMS WERE NOT PAID, THERE IS AN
"ACTUAL CONTROVERSY" ON WHICH SUIT MAY BE MAINTAINED BY THE INSURER
AGAINST THE INSURED UNDER THE FEDERAL DECLARATORY JUDGMENT ACT P. 242. 

AETNA LIFE INSURANCE CO. V. HAWORTH ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 299 U.S. 536. 

THIS SUIT BY THE INSURANCE COMPANY, UNDER THE FEDERAL DECLARATORY
JUDGMENT ACT, WAS DISMISSED BY THE DISTRICT COURT UPON THE GROUND THAT
THERE WAS NO JUSTICIABLE CONTROVERSY.  11 F.SUPP.  1016.  THE DECREE
WAS AFFIRMED BY THE COURT BELOW. 

THE DECLARATORY JUDGMENT ACT IS CONSTITUTIONAL.  ASHWANDER V.
TENNESSEE VALLEY AUTHORITY, 297 U.S. 288; NASHVILLE, C. & ST. L. RY. V.
WALLACE, 288 U.S. 249. 

THE BRINGING OF THIS SUIT DOES NOT DEPRIVE RESPONDENTS OF A JURY
TRIAL.  THE ACT MAKES EXPRESS PROVISION FOR SUBMISSION OF QUESTIONS OF
FACT TO A JURY. 

THERE IS AN ACTUAL CONTROVERSY WITHIN THE MEANING OF THE DECLARATORY
JUDGMENT ACT AND THE FEDERAL CONSTITUTION. 

THE ALLEGATIONS OF THE PETITION SHOW THERE IS A CONTROVERSY OF A
DEFINITE, SPECIFIC AND SUBSTANTIAL CHARACTER.  THE CLAIMS OF THE POLICY
HOLDER HAVE BEEN CLEARLY AND REPEATEDLY ASSERTED IN WRITING, AND
PETITIONER'S DENIALS OF THESE CLAIMS HAVE BEEN EQUALLY SPECIFIC AND
CONSISTENT.  THE RESPECTIVE RIGHTS OF THE PARTIES DEPEND UPON A
DETERMINATION OF THE SINGLE CLEAR-CUT ISSUE - WHETHER DISABILITY
EXISTED WHEN PAYMENT OF PREMIUMS CEASED.  THE RIGHT OF THE PETITIONER
TO TREAT THE POLICIES AS LAPSED BECAME COMPLETE WHEN PREMIUM PAYMENTS
CEASED, IF THE REQUISITE DISABILITY DID NOT THEN EXIST.  ON THE OTHER
HAND, THE RIGHT OF THE INSURED TO DISABILITY BENEFITS AND THE
MAINTENANCE OF THE POLICIES IN FORCE DURING THE CONTINUANCE OF
DISABILITY THEN BECAME COMPLETE IF SUCH DISABILITY DID EXIST. 

THIS IS NOT AN ATTEMPT TO OBTAIN AN OPINION BASED ON AN UNCERTAIN OR
HYPOTHETICAL STATE OF FACTS, AS IN LIBERTY WAREHOUSE CO. V. GRANNIS,
273 U.S. 70. 

THE CLAIMS OF THE INSURED ARE NOT MERE EXPRESSIONS OF OPINION IN
PRIVATE CONVERSATION, AS IN WILLING V. CHICAGO AUDITORIUM ASSN., 277
U.S. 274, 288, NOR INDEFINITE AND UNSPECIFIC AS IN NEW JERSEY V.
SARGENT, 269 U.S. 328.  ON THE CONTRARY, THEY ARE COUCHED IN FORMAL
LANGUAGE, ATTESTED BEFORE A NOTARY PUBLIC, AND ACCOMPANIED BY A
PHYSICIAN'S SWORN CERTIFICATE.  AT FREQUENT INTERVALS AND AT LEAST
THIRTEEN TIMES, BEGINNING IN 1930, THESE CLAIMS HAVE BEEN REASSERTED IN
SIMILAR FORM. 

THE PRESENT SUIT IS SIMILAR IN ITS ESSENTIAL CHARACTERISTICS TO
NASHVILLE, C. & ST. L. RY. V. WALLACE, 288 U.S. 249.  SEE ALSO GULLY V.
INTERSTATE NATURAL GAS CO., 82 F.(2D) 145, CERT. DEN., 298 U.S. 688;
TRAVELERS INSURANCE CO. V. HELMER, 15 F.SUPP.  355; NEW YORK LIFE INS.
CO. V. LONDON, 15 F.SUPP.  586. 

THE ALLEGATIONS OF THE PETITION DISCLOSE A SITUATION WHICH WOULD
ENABLE THE POLICYHOLDER TO MAINTAIN AN ACTION AGAINST THE PETITIONER. 

A PARTY WHO WOULD NORMALLY BE DEFENDANT UNDER OTHER FORMS OF
PROCEDURE MAY SEEK A DECLARATION UNDER THE ACT.  FIDELITY NATIONAL BANK
& TRUST CO. V. SWOPE, 274 U.S. 123; TRAVELERS INSURANCE CO. V. HELMER,
SUPRA; NEW YORK LIFE INS. CO. V. LONDON, SUPRA. 

THERE ARE OTHER DECISIONS BY THE FEDERAL DISTRICT COURTS HOLDING THAT
SUITS MAY BE BROUGHT UNDER THE ACT BY THE PARTY TO THE CONTROVERSY WHO
WOULD NORMALLY OTHERWISE BE THE DEFENDANT.  OHIO CASUALTY CO. V.
PLUMMER, 13 F.SUPP.  169; COMMERCIAL CASUALTY CO. V. HUMPHREY, 13
F.SUPP.  174; BLACK V. LITTLE, 8 F.SUPP.  867; LIONEL CORP. V. DE
FILIPPIS, 11 F.SUPP.  712; ZENIE BROS. V. MISKEND, 10 F.SUPP.  779;
MCKESSON & ROBBINS V. CHARSKY, 15 F.SUPP.  209. 

LIKE HOLDINGS HAVE BEEN MADE IN NUMEROUS CASES UNDER STATE
DECLARATORY JUDGMENT ACTS.  AMERICAN MOTORISTS INS. CO. V. CENTRAL
GARAGE, 86 N.H. 362; OWEN V. FLETCHER SAVINGS & TRUST CO., 99 IND. APP.
365; PULSIFER V. WALKER, 85 N.H. 434; HESS V. COUNTRY CLUB PARK, 213
CAL. 613; TOLLE V. STRUVE, 124 CAL. APP. 263; UTICA MUTUAL INS. CO. V.
GLENNIE, 132 MISC. REP. 899; WOODWARD V. FOX WEST COAST THEATERS, 36
ARIZ. 251.  ALSO IN ENGLAND.  GUARANTY TRUST CO. V. HANNAY & CO.,
(C.A.)  2 K.B. 536, 555(1915).  SEE FAULKNER V. KEENE, 85 N.H. 147,
155; BORCHARD IN CHICAGO LAW REVIEW, 1936, VOL. 4, NO. 1. 

THE REPORT OF THE SENATE COMMITTEE ON THE JUDICIARY ACCOMPANYING THE
BILL TO AMEND THE JUDICIAL CODE BY ADDING A NEW SECTION TO BE NUMBERED
274D, REPORT NO. 1005, 73D CONG., 2D SESS., MAY 10, 1934; BORCHARD,
DECLARATORY JUDGMENTS, P. 634, STATES THE ELEMENTS REQUIRED FOR
RENDERING A DECLARATORY JUDGMENT.  IT IS NOT INDICATED THAT THERE MUST
BE EITHER A PENDING SUIT OR A THREAT OF IMMEDIATE SUIT BY THE PARTIES
AGAINST WHOM THE DECLARATION IS SOUGHT.  THE CASES DO NOT MAKE SUCH A
REQUIREMENT. 

ONE OF THE PRIMARY PURPOSES OF DECLARATORY JUDGMENT PROCEDURE IS TO
PROVIDE MEANS FOR THE PROMPT SETTLEMENT OF CONTROVERSIES.  THIS
OBJECTIVE WOULD NOT BE ATTAINED IF A PARTY ASSERTING A CLAIM COULD
PREVENT HIS ADVERSARY FROM INSTITUTING AN ACTION BY THE SIMPLE
EXPEDIENT OF NOT STATING WHEN HE PROPOSED TO SUE TO ENFORCE THE CLAIM. 

PETITIONER IS ENTITLED TO PROMPT AND EFFICIENT RELIEF AND SHOULD NOT
BE COMPELLED TO WAIT UNTIL SUCH TIME AS ITS ADVERSARIES CHOOSE TO BRING
SUIT.  BANK V. STONE, 88 FED. 383, 391, OPINION BY JUDGE TAFT WITH WHOM
SAT MR. JUSTICE HARLAN AND JUDGE LURTON; MUTUAL LIFE INS. CO. V.
PEARSON, 114 FED. 295; LINCOLN NATIONAL LIFE INS. CO. V. HAMMER, 41
F.(2D) 12.  SEE TOLLE V. STRUVE, 124 CAL. APP. 263; PETITION OF
KARIHER, 284 PA. 455, 463. 

THE REPEATED, FORMAL ASSERTIONS OF CLAIM BY THE POLICYHOLDER IN THE
CASE AT BAR ARE FAR MORE CONCLUSIVE AS SHOWING A DETERMINATION TO
ENFORCE THESE CLAIMS BY COURT ACTION THAN WOULD BE A MERE THREAT TO
SUE. 

A DECISION IN THIS SUIT WILL BE A FINAL DETERMINATION OF THE
CONTROVERSY.  FIDELITY NATIONAL BANK & TRUST CO. V. SWOPE, 274 U.S.
123. 

THE FACT THAT RIGHTS WHICH MIGHT SUBSEQUENTLY ACCRUE CANNOT BE
DETERMINED IN THIS SUIT IS NO GROUND FOR REFUSING TO DETERMINE PRESENT
RIGHTS ASSERTED IN THE FORM OF A JUSTICIABLE CONTROVERSY. 

THE CASES CITED BY RESPONDENTS IN THIS CONNECTION SIMPLY LAY DOWN THE
RULE THAT THE JUDGMENT MUST FINALLY DISPOSE OF THE THEN EXISTING
CONTROVERSY.  CF. LEWIS V. GREENE, L.R. (1905), 2 CH. DIV. 340. 

THE FACT THAT THE RESPONDENTS COULD OBTAIN A FINAL JUDGMENT IN THEIR
FAVOR ON THE CAUSE OF ACTION DISCLOSED IN THE PETITION FOR A
DECLARATORY JUDGMENT WOULD SEEM TO BE CONCLUSIVE PROOF THAT A
DECLARATORY JUDGMENT RENDERED UNDER THE PETITION WOULD POSSESS ALL THE
ESSENTIAL ELEMENTS OF FINALITY. 

THE RIGHT TO BE FREE FROM AN UNFOUNDED CLAIM, OR TO KNOW WHETHER A
CLAIM IS WELL FOUNDED, AND THE RIGHT TO TREAT A CONTRACT AS ENDED, MAY
WELL BE CONSIDERED RIGHTS WITHIN THE MEANING OF THE ACT. 

BUT THE ACT DOES NOT LIMIT DECLARATIONS TO DECLARATIONS OF RIGHTS. 
IT PROVIDES FOR A DECLARATION OF "RIGHTS AND OTHER LEGAL RELATIONS." 
RIGHTS MUST HAVE BEEN CONSIDERED LEGAL RELATIONS BY THE CONGRESS, ELSE
THE WORD "OTHER" WOULD NOT HAVE BEEN INCLUDED.  IF A RIGHT IS A LEGAL
RELATION, THEN THE CORRESPONDING OBLIGATION MUST NECESSARILY BE A LEGAL
RELATION.  THEREFORE, WHETHER OR NOT PETITIONER HAS RIGHTS TO BE
DECLARED, IT IS ENTITLED TO COME INTO COURT AND ASK FOR A DECLARATION
AS TO ITS OBLIGATIONS. 

THERE IS AMPLE AUTHORITY FOR THE PROPOSITION THAT A DECLARATION OF
IMMUNITY FROM ASSERTED CLAIMS IS A PROPER ONE UNDER THE ACT.  SEN. REP.
NO. 1005, 73D CONG., 2D SESS., 1934.  SEE NASHVILLE, C. & ST. L. RY. V.
WALLACE, SUPRA; GULLY V. INTERSTATE NATURAL GAS CO., SUPRA; GUARANTY
TRUST CO. V. HANNAY & CO., C.A. 2 K.B. 536(1915); SOCIETE MARITIME &
COMMERCIAL V. VENUS S.S. CO., 9 COMM. CAS. 289(1904); BORCHARD,
DECLARATORY JUDGMENTS, PP. 74 ET SEQ. 

HOWEVER, PETITIONER'S CLAIM THAT THERE ARE RIGHTS AND OTHER LEGAL
RELATIONS DISCLOSED BY THE PETITION WHICH ARE PROPERLY THE SUBJECT OF A
DECLARATION, DOES NOT NEED TO BE BASED ENTIRELY UPON THE PROPOSITION
THAT IMMUNITY FROM OBLIGATION COMES WITHIN THAT PHRASE OF THE ACT.  IF
IT IS DETERMINED THAT THE POLICYHOLDER HAS BEEN TOTALLY DISABLED, THEN
THE RELATIONSHIP OF THE INSURED AND INSURER EXISTS BETWEEN HIM AND
PETITIONER, AND THE RELATIONSHIP OF CREDITOR AND DEBTOR ALSO.  IF A
DECLARATION IS GRANTED AS PRAYED BY PETITIONER, THEN NEITHER OF THESE
RELATIONSHIPS EXIST BETWEEN IT AND THE POLICYHOLDER.  CF. COLUMBIAN
NATIONAL LIFE INS. CO. V. FOULKE, 13 F.SUPP.  350, 352. 

IRREPARABLE INJURY NEED NOT BE ALLEGED, BUT IS ALLEGED AND EXISTS IN
THIS CASE. 

THE PLAINTIFF IS REQUIRED ANNUALLY TO SET ASIDE SUBSTANTIAL RESERVES
FOR EACH OF THE POLICIES UNTIL IT IS JUDICIALLY DETERMINED THAT THEY
HAVE LAPSED AND ARE NULL AND VOID.  THE SETTING ASIDE OF THESE RESERVES
CONSTITUTES MORE THAN A BOOKKEEPING ENTRY, AND WE SUBMIT THAT THE COURT
OF APPEALS WAS IN ERROR IN HOLDING THAT THE COMPANY'S "CONTROL OVER
SUCH FUNDS IS NEITHER MODIFIED NOR AFFECTED" BY THE NOTICES SERVED UPON
PETITIONER BY THE RESPONDENTS. 

THE STATUS OF INSURANCE RESERVES WAS CONSIDERED BY THIS COURT IN
MARYLAND CASUALTY CO. V. UNITED STATES, 251 U.S. 342, 350. 

SO LONG AS THESE RESERVES ARE REQUIRED TO BE SET UP BY THE COMPANY,
THEY CONSTITUTE IN A VERY REAL SENSE BOTH A SEGREGATION OF ASSETS AND A
LIABILITY OF THE COMPANY. 

NOT ONLY THE COMPANY, BUT ALL OF ITS POLICYHOLDERS ARE INTERESTED IN
SEEING THAT PREMIUMS ARE PROMPTLY COLLECTED ON ALL OUTSTANDING
POLICIES, AND THAT IN ALL CASES OF DEFAULTED PREMIUMS THE POLICIES
SHALL BE PROMPTLY FORFEITED OR CANCELLED.  ALL MATTERS AFFECTING THE
RIGHTS AND INTERESTS OF THE POLICYHOLDER DIRECTLY AFFECT THE BUSINESS
OF THE COMPANY.  NEW YORK LIFE INS. CO. V. STATHAM, 93 U.S. 24, 29. 

THERE ARE OTHER REASONS WHY A DENIAL OF THE RELIEF PRAYED FOR AND THE
RESULTING DELAY IN THE DETERMINATION OF THIS CONTROVERSY WOULD BE
INJURIOUS TO PETITIONER.  BY SEC. 5929, REV. STATS., MISSOURI, 1929, AN
INSURER MAY BE SUBJECTED TO A PENALTY OF 10% OF THE CLAIM, AND THE
PAYMENT OF OPPOSING PARTY'S ATTORNEY'S FEE, FOR VEXATIOUS DELAY IN
CLAIMED PAYMENT.  THIS ADDED LIABILITY IS ORDINARILY HELD TO BE A
QUESTION FOR THE JURY.  GUERINGER V. FIDELITY & DEPOSIT CO., 184 S.W.
936.  IF SUIT SHOULD BE BROUGHT FOR ACCUMULATED DISABILITY BENEFITS AND
PETITIONER SHOULD BE HELD LIABLE THEREFOR, IT WOULD BE COMPELLED TO PAY
INTEREST AT THE RATE OF 6% PER ANNUM FROM THE DATE THAT THE RESPECTIVE
PAYMENTS WERE DUE, UNDER THE PROVISIONS OF SEC. 2839, REV. STATS.,
MISSOURI, 1929. 

IT IS UNCONSCIONABLE THAT THE RESPONDENTS SHOULD HAVE THE RIGHT TO
HOLD THIS CLAIM "AS A MENACE AND THREAT OVER THE HEAD OF THE
COMPLAINANT," WHILE IN THE MEANTIME EVIDENCE MAY BECOME "LOST OR
UNAVAILABLE."  SCHMIDT V. WEST, 104 FED. 272.  RELIEF IN EQUITY HAS
OFTEN BEEN GRANTED TO AVOID POSTPONEMENT OF LITIGATION TO A "TIME WHEN
THE FACTS ARE NO LONGER CAPABLE OF COMPLETE PROOF OR HAVE BECOME
INVOLVED IN THE OBSCURITIES OF TIME."  STORY, EQ. JURIS., SEC. 705. 

THE PETITION DOES NOT PRESENT AN ACTUAL OR JUSTICIABLE CONTROVERSY. 
THE DECLARATORY JUDGMENT ACT DOES NOT CHANGE THE ESSENTIAL REQUISITES
FOR THE EXERCISE OF JUDICIAL POWER.  NOR DOES IT FOR THE PURPOSES OF
THE ACT MAKE THAT A CONTROVERSY WHICH BEFORE ITS ENACTMENT WAS NOT A
CONTROVERSY IN THE CONSTITUTIONAL SENSE.  ASHWANDER V. TENNESSEE VALLEY
AUTHORITY, 297 U.S. 288. 

THE PETITIONER ASKS THE COURT TO DETERMINE A FACT, THE ONLY VALUE OF
WHICH DETERMINATION WOULD BE THAT IT COULD BE EMPLOYED BY THE
PETITIONER AS A DEFENSE IN THE EVENT OF A FUTURE SUIT ON ANY OF THE
POLICIES. 

WHEN THE PETITION WAS FILED THERE WAS NO PRESENT RIGHT OF RECOVERY OF
AN AMOUNT SUFFICIENT TO GIVE A FEDERAL COURT JURISDICTION.  THE
PETITION, THEREFORE, DOES NOT PRESENT A CASE OR CONTROVERSY BETWEEN THE
PARTIES AS TO THE RIGHT OF EITHER TO A MONEY JUDGMENT AGAINST THE OTHER
IN A FEDERAL COURT.  THE CONTROVERSY COGNIZABLE HERE, IF ANY THERE BE,
MUST, THEREFORE, BE ABOUT SOMETHING OTHER THAN A PRESENT RIGHT TO A
JUDGMENT FOR MONEY. 

THE PETITIONER SAYS ITS PETITION PRESENTS A CONTROVERSY OF FACT, THE
ADJUDICATION OF WHICH IN ITS FAVOR WILL BE A GOOD DEFENSE TO A POSSIBLE
FUTURE SUIT UPON POLICIES WRITTEN IN THE FACE AMOUNT OF MORE THAN
$3,000.00.  IT ARGUES THEREFROM THAT THE DETERMINATION OF SUCH FACT
WOULD BE A DECLARATION OF RIGHTS OR LEGAL RELATIONS INVOLVING THE
JURISDICTIONAL AMOUNT. 

THE RESPONDENTS SAY NO CONTROVERSY IN THE CONSTITUTIONAL SENSE IS
PRESENTED. 

A DISPUTE OUT OF COURT ABOUT THE PRESENT EXISTENCE OF A MUTABLE FACT,
WHICH MAY BECOME AN ELEMENT IN THE DETERMINATION OF AN ACTION AT LAW
THAT MAY BE COMMENCED AT SOME FUTURE TIME, IS NOT A CONTROVERSY IN THE
SENSE IN WHICH THAT WORD IS USED IN THE CONSTITUTION.  PIEDMONT &
NORTHERN RY. V. UNITED STATES, 280 U.S. 469; NASHVILLE, C. & ST. L. RY.
V. WALLACE, 288 U.S. 249; FIDELITY NATIONAL BANK V. SWOPE, 274 U.S.
123; WILLING V. CHICAGO AUDITORIUM ASSN., 277 U.S. 274; ARIZONA V.
CALIFORNIA, 283 U.S. 423; ALABAMA V. ARIZONA, 291 U.S. 286; UNITED
STATES V. WEST VIRGINIA, 295 U.S. 463; NEW JERSEY V. SARGENT, 269 U.S.
328; ASHWANDER V. TENNESSEE VALLEY AUTHORITY, SUPRA. 

IT IS GENERALLY RECOGNIZED THAT DECLARATORY JUDGMENTS ARE NOT
APPLICABLE TO EVERY DIFFERENCE, OR TO EVERY CONTROVERSY, THAT MAY ARISE
BETWEEN PROSPECTIVE LITIGANTS.  IN ALL JURISDICTIONS IT HAS BEEN
DECLARED THAT THE COURT HAS A DISCRETION IN DETERMINING WHETHER UNDER
THE LAW IT SHOULD DECLARE A JUDGMENT AT ALL IN ANY PARTICULAR CASE. 
NEWSUM V. INTERSTATE REALTY CO., 152 TENN. 302; 3 FREEMAN ON JUDGMENTS,
5TH ED., PAR. 1356; ZIEGLER V. PICKETT, 46 WYO. 283.    THE PURPOSE OF
THE PROCEEDING IS NOT TO SETTLE ANY PRESENT "RIGHTS OR OTHER LEGAL
RELATIONS," BUT TO SETTLE ONE PARTICULAR FACT THAT MAY LATER BE CALLED
INTO QUESTION IN A POSSIBLE SUIT.  THE DISPUTE IS NOT EVEN AS TO A
COMPLETED FACT CAPABLE OF EXACT AND FINAL ASCERTAINMENT, BUT AS TO A
FACT PROBABLY CHANGING AND RESTING SOMEWHAT IN OPINION.  IF THE INSURED
SHOULD NOW ESTABLISH THE QUESTIONED FACT, HE WOULD NOT BE ENTITLED TO A
PRESENT JUDGMENT AGAINST THE INSURANCE COMPANY; IT WOULD NOT DETERMINE
FINALLY HIS RIGHT TO A JUDGMENT IN A FUTURE ACTION; THE ADJUDICATION
WOULD NOT BE SUSCEPTIBLE OF VIOLATION AND COULD NOT CALL FOR
ENFORCEMENT; IT WOULD NOT FINALLY ADJUDICATE THE STANDING OF THE
PARTIES. 

THE DECLARATORY PROCEDURE IS INAPPROPRIATE TO A JUDICIAL
INVESTIGATION OF DISPUTED FACTS, OR TO AN INQUIRY WHERE, AS HERE, IF
THE DECISION SHOULD GO IN ONE WAY IT MIGHT INVOLVE FURTHER LITIGATION,
OR TO AN INQUIRY, AS HERE, THAT WOULD NOT NECESSARILY LEAD TO A FINAL
DETERMINATION OF THE RIGHT OF ONE LITIGANT TO RECOVER AGAINST THE
OTHER.  THE DISCRETION OF THE COURT TO REFUSE TO DECLARE A JUDGMENT IN
SUCH CASES IS GENERALLY RECOGNIZED.  LEWIS V. GREEN, L.R. (1905) 2 CH.
DIV. 340; ZIEGLER V. PICKETT, 46 WYO. 283; NEWSUM V. INTERSTATE REALTY
CO., 152 TENN. 302; 3 FREEMAN, JUDGMENTS, 5TH ED., PAR. 1356; LADNER V.
SIEGEL, 294 PA. 368; WASHINGTON DETROIT THEATER CO. V. MOORE, 249 MICH.
673; 41 YALE L.J., JUNE, 1932, P. 1195; 45 HARV. L. REV., P. 1089. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE QUESTION PRESENTED IS WHETHER THE DISTRICT COURT HAD JURISDICTION
OF THIS SUIT UNDER THE FEDERAL DECLARATORY JUDGMENT ACT.  ACT OF JUNE
14, 1934, 48 STAT. 955; JUD.  CODE, SEC. 274D; 28 U.S.C. 400.  FN1 

THE QUESTION ARISES UPON THE PLAINTIFF'S COMPLAINT WHICH WAS
DISMISSED BY THE DISTRICT COURT UPON THE GROUND THAT IT DID NOT SET
FORTH A "CONTROVERSY" IN THE CONSTITUTIONAL SENSE AND HENCE DID NOT
COME WITHIN THE LEGITIMATE SCOPE OF THE STATUTE.  11 F.SUPP.  1016. 
THE DECREE OF DISMISSAL WAS AFFIRMED BY THE CIRCUIT COURT OF APPEALS. 
84 F.(2D) 695.  WE GRANTED CERTIORARI.  NOVEMBER 16, 1936. 

FROM THE COMPLAINT IT APPEARS THAT PLAINTIFF IS AN INSURANCE COMPANY
WHICH HAD ISSUED TO THE DEFENDANT, EDWIN P. HAWORTH, FIVE POLICIES OF
INSURANCE UPON HIS LIFE, THE DEFENDANT CORA M. HAWORTH BEING NAMED AS
BENEFICIARY.  THE COMPLAINT SET FORTH THE TERMS OF THE POLICIES.  THEY
CONTAINED VARIOUS PROVISIONS WHICH FOR THE PRESENT PURPOSE IT IS
UNNECESSARY FULLY TO PARTICULARIZE.  IT IS SUFFICIENT TO OBSERVE THAT
THEY ALL PROVIDED FOR CERTAIN BENEFITS IN THE EVENT THAT THE INSURED
BECAME TOTALLY AND PERMANENTLY DISABLED.  IN ONE POLICY, FOR $10,000,
ISSUED IN 1911, THE COMPANY AGREED, UPON RECEIVING THE REQUISITE PROOF
OF SUCH DISABILITY AND WITHOUT FURTHER PAYMENT OF PREMIUMS, TO PAY THE
SUM INSURED, AND DIVIDEND ADDITIONS, IN TWENTY ANNUAL INSTALMENTS, OR A
LIFE ANNUITY AS SPECIFIED, IN FULL SETTLEMENT.  IN FOUR OTHER POLICIES
ISSUED IN 1921, 1928 AND 1929, RESPECTIVELY, FOR AMOUNTS AGGREGATING
$30,000, PLAINTIFF AGREED UPON PROOF OF SUCH DISABILITY TO WAIVE
FURTHER PAYMENT OF PREMIUMS, PROMISING IN ONE OF THE POLICIES TO PAY A
SPECIFIED AMOUNT MONTHLY AND IN THE OTHER THREE TO CONTINUE THE LIFE
INSURANCE IN FORCE.  BY THESE FOUR POLICIES THE BENEFITS TO BE PAYABLE
AT DEATH, AND THE CASH AND LOAN VALUES TO BE AVAILABLE, WERE TO BE THE
SAME WHETHER THE PREMIUMS WERE PAID OR WERE WAIVED BY REASON OF THE
DESCRIBED DISABILITY. 

THE COMPLAINT ALLEGES THAT IN 1930 AND 1931 THE INSURED CEASED TO PAY
PREMIUMS ON THE FOUR POLICIES LAST MENTIONED AND CLAIMED THE DISABILITY
BENEFITS AS STIPULATED.  HE CONTINUED TO PAY PREMIUMS ON THE FIRST
MENTIONED POLICY UNTIL 1934 AND THEN CLAIMED DISABILITY BENEFITS. 
THESE CLAIMS, WHICH WERE REPEATEDLY RENEWED, WERE PRESENTED IN THE FORM
OF AFFIDAVITS ACCOMPANIED BY CERTIFICATES OF PHYSICIANS.  A TYPICAL
WRITTEN CLAIM ON THE FOUR POLICIES IS ANNEXED TO THE COMPLAINT.  IT
STATES THAT WHILE THESE POLICIES WERE IN FORCE, THE INSURED BECAME
TOTALLY AND PERMANENTLY DISABLED BY DISEASE AND WAS "PREVENTED FROM
PERFORMING ANY WORK OR CONDUCTING ANY BUSINESS FOR COMPENSATION OR
PROFIT"; THAT ON OCTOBER 7, 1930, HE HAD MADE AND DELIVERED TO THE
COMPANY A SWORN STATEMENT "FOR THE PURPOSE OF ASSERTING AND CLAIMING
HIS RIGHT TO HAVE THESE POLICIES CONTINUED UNDER THE PERMANENT AND
TOTAL DISABILITY PROVISION CONTAINED IN EACH OF THEM"; THAT MORE THAN
SIX MONTHS BEFORE THAT DATE HE HAD BECOME TOTALLY AND PERMANENTLY
DISABLED AND HAD FURNISHED EVIDENCE OF HIS DISABILITY WITHIN THE STATED
TIME; THAT THE ANNUAL PREMIUMS PAYABLE IN THE YEAR 1930 OR IN
SUBSEQUENT YEARS WERE WAIVED BY REASON OF THE DISABILITY AND THAT HE
WAS ENTITLED TO HAVE THE POLICIES CONTINUED IN FORCE WITHOUT THE
PAYMENT OF PREMIUMS SO LONG AS THE DISABILITY SHOULD CONTINUE. 

WITH RESPECT TO THE POLICY FIRST MENTIONED, IT APPEARS THAT THE
INSURED CLAIMED THAT PRIOR TO JUNE 1, 1934, WHEN HE CEASED TO PAY
PREMIUMS, HE HAD BECOME TOTALLY AND PERMANENTLY DISABLED; THAT HE WAS
WITHOUT OBLIGATION TO PAY FURTHER PREMIUMS AND WAS ENTITLED TO THE
STIPULATED DISABILITY BENEFITS INCLUDING THE CONTINUED LIFE OF THE
POLICY. 

PLAINTIFF ALLEGES THAT CONSISTENTLY AND AT ALL TIMES IT HAS REFUSED
TO RECOGNIZE THESE CLAIMS OF THE INSURED AND HAS INSISTED THAT ALL THE
POLICIES HAD LAPSED ACCORDING TO THEIR TERMS BY REASON OF THE NON
PAYMENT OF PREMIUMS, THE INSURED NOT BEING TOTALLY AND PERMANENTLY
DISABLED AT ANY OF THE TIMES TO WHICH HIS CLAIMS REFERRED.  PLAINTIFF
FURTHER STATES THAT TAKING LOANS INTO CONSIDERATION FOUR OF THE
POLICIES HAVE NO VALUE AND THE REMAINING POLICY (THE ONE FIRST
MENTIONED) HAS A VALUE OF ONLY $45 AS EXTENDED INSURANCE.  IF, HOWEVER,
THE INSURED HAS BEEN TOTALLY AND PERMANENTLY DISABLED AS HE CLAIMS, THE
FIVE POLICIES ARE IN FULL FORCE, THE PLAINTIFF IS NOW OBLIGED TO PAY
THE ACCRUED INSTALMENTS OF CASH DISABILITY BENEFITS FOR WHICH TWO OF
THE POLICIES PROVIDE, AND THE INSURED HAS THE RIGHT TO CLAIM AT ANY
TIME CASH SURRENDER VALUES ACCUMULATING BY REASON OF THE PROVISIONS FOR
WAIVER OF PREMIUMS, OR AT HIS DEATH, CORA M. HAWORTH, AS BENEFICIARY,
WILL BE ENTITLED TO RECEIVE THE FACE OF THE POLICIES LESS THE LOANS
THEREON. 

PLAINTIFF THUS CONTENDS THAT THERE IS AN ACTUAL CONTROVERSY WITH
DEFENDANTS AS TO THE EXISTENCE OF THE TOTAL AND PERMANENT DISABILITY OF
THE INSURED AND AS TO THE CONTINUANCE OF THE OBLIGATIONS ASSERTED
DESPITE THE NONPAYMENT OF PREMIUMS.  DEFENDANTS HAVE NOT INSTITUTED ANY
ACTION WHEREIN THE PLAINTIFF WOULD HAVE AN OPPORTUNITY TO PROVE THE
ABSENCE OF THE ALLEGED DISABILITY AND PLAINTIFF POINTS TO THE DANGER
THAT IT MAY LOSE THE BENEFIT OF EVIDENCE THROUGH DISAPPEARANCE, ILLNESS
OR DEATH OF WITNESSES; AND MEANWHILE, IN THE ABSENCE OF A JUDICIAL
DECISION WITH RESPECT TO THE ALLEGED DISABILITY, THE PLAINTIFF IN
RELATION TO THESE POLICIES WILL BE COMPELLED TO MAINTAIN RESERVES IN
EXCESS OF $20,000. 

THE COMPLAINT ASKS FOR A DECREE THAT THE FOUR POLICIES BE DECLARED TO
BE NULL AND VOID BY REASON OF LAPSE FOR NONPAYMENT OF PREMIUMS AND THAT
THE OBLIGATION UPON THE REMAINING POLICY BE HELD TO CONSIST SOLELY IN
THE DUTY TO PAY THE SUM OF $45 UPON THE DEATH OF THE INSURED, AND FOR
SUCH FURTHER RELIEF AS THE EXIGENCIES OF THE CASE MAY REQUIRE. 

FIRST.  THE CONSTITUTION LIMITS THE EXERCISE OF THE JUDICIAL POWER TO
"CASES" AND "CONTROVERSIES."  "THE TERM 'CONTROVERSIES,' IF
DISTINGUISHABLE AT ALL FROM 'CASES,' IS SO IN THAT IT IS LESS
COMPREHENSIVE THAN THE LATTER, AND INCLUDES ONLY SUITS OF A CIVIL
NATURE."  PER MR. JUSTICE FIELD IN IN RE PACIFIC RAILWAY COMM'N, 32
FED. 241, 255, CITING CHISHOLM V. GEORGIA, 2 DALL.  419, 431, 432.  SEE
MUSKRAT V. UNITED STATES, 219 U.S. 346, 356, 357; OLD COLONY TRUST CO.
V. COMMISSIONER, 279 U.S. 716, 723, 724.  THE DECLARATORY JUDGMENT ACT
OF 1934, IN ITS LIMITATION TO "CASES OF ACTUAL CONTROVERSY," MANIFESTLY
HAS REGARD TO THE CONSTITUTIONAL PROVISION AND IS OPERATIVE ONLY IN
RESPECT TO CONTROVERSIES WHICH ARE SUCH IN THE CONSTITUTIONAL SENSE. 
THE WORD "ACTUAL" IS ONE OF EMPHASIS RATHER THAN OF DEFINITION.  THUS
THE OPERATION OF THE DECLARATORY JUDGMENT ACT IS PROCEDURAL ONLY.  IN
PROVIDING REMEDIES AND DEFINING PROCEDURE IN RELATION TO CASES AND
CONTROVERSIES IN THE CONSTITUTIONAL SENSE THE CONGRESS IS ACTING WITHIN
ITS DELEGATED POWER OVER THE JURISDICTION OF THE FEDERAL COURTS WHICH
THE CONGRESS IS AUTHORIZED TO ESTABLISH.  TURNER V. BANK OF NORTH
AMERICA, 4 DALL.  8, 10; STEVENSON V. FAIN, 195 U.S. 165, 167; KLINE V.
BURKE CONSTRUCTION CO., 260 U.S. 226, 234.  EXERCISING THIS CONTROL OF
PRACTICE AND PROCEDURE THE CONGRESS IS NOT CONFINED TO TRADITIONAL
FORMS OR TRADITIONAL REMEDIES.  THE JUDICIARY CLAUSE OF THE
CONSTITUTION "DID NOT CRYSTALLIZE INTO CHANGELESS FORM THE PROCEDURE OF
1789 AS THE ONLY POSSIBLE MEANS FOR PRESENTING A CASE OR CONTROVERSY
OTHERWISE COGNIZABLE BY THE FEDERAL COURTS."  NASHVILLE, C. & ST. L.
RY. CO. V. WALLACE, 288 U.S. 249, 264.  IN DEALING WITH METHODS WITHIN
ITS SPHERE OF REMEDIAL ACTION THE CONGRESS MAY CREATE AND IMPROVE AS
WELL AS ABOLISH OR RESTRICT.  THE DECLARATORY JUDGMENT ACT MUST BE
DEEMED TO FALL WITHIN THIS AMBIT OF CONGRESSIONAL POWER, SO FAR AS IT
AUTHORIZES RELIEF WHICH IS CONSONANT WITH THE EXERCISE OF THE JUDICIAL
FUNCTION IN THE DETERMINATION OF CONTROVERSIES TO WHICH UNDER THE
CONSTITUTION THE JUDICIAL POWER EXTENDS. 

A "CONTROVERSY" IN THIS SENSE MUST BE ONE THAT IS APPROPRIATE FOR
JUDICIAL DETERMINATION.  OSBORN V. UNITED STATES BANK, 9 WHEAT.  738,
819.  A JUSTICIABLE CONTROVERSY IS THUS DISTINGUISHED FROM A DIFFERENCE
OR DISPUTE OF A HYPOTHETICAL OR ABSTRACT CHARACTER; FROM ONE THAT IS
ACADEMIC OR MOOT.  UNITED STATES V. ALASKA S.S. CO., 253 U.S. 113,
116.  THE CONTROVERSY MUST BE DEFINITE AND CONCRETE, TOUCHING THE LEGAL
RELATIONS OF PARTIES HAVING ADVERSE LEGAL INTERESTS.  SOUTH SPRING GOLD
CO. V. AMADOR GOLD CO., 145 U.S. 300, 301; FAIRCHILD V. HUGHES, 258
U.S. 126, 129; MASSACHUSETTS V. MELLON, 262 U.S. 447, 487, 488.  IT
MUST BE A REAL AND SUBSTANTIAL CONTROVERSY ADMITTING OF SPECIFIC RELIEF
THROUGH A DECREE OF A CONCLUSIVE CHARACTER, AS DISTINGUISHED FROM AN
OPINION ADVISING WHAT THE LAW WOULD BE UPON A HYPOTHETICAL STATE OF
FACTS.  SEE MUSKRAT V. UNITED STATES, SUPRA; TEXAS V. INTERSTATE
COMMERCE COMM'N, 258 U.S. 158, 162; NEW JERSEY V. SARGENT, 269 U.S.
328, 339, 340; LIBERTY WAREHOUSE CO. V. GRANNIS, 273 U.S. 70; NEW YORK
V. ILLINOIS, 274 U.S. 488, 490; WILLING V. CHICAGO AUDITORIUM ASSN.,
277 U.S. 274, 289, 290; ARIZONA V. CALIFORNIA, 283 U.S. 423, 463, 464;
ALABAMA V. ARIZONA, 291 U.S. 286, 291; UNITED STATES V. WEST VIRGINIA,
295 U.S. 463, 474, 475; ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297
U.S. 288, 324.  WHERE THERE IS SUCH A CONCRETE CASE ADMITTING OF AN
IMMEDIATE AND DEFINITIVE DETERMINATION OF THE LEGAL RIGHTS OF THE
PARTIES IN AN ADVERSARY PROCEEDING UPON THE FACTS ALLEGED, THE JUDICIAL
FUNCTION MAY BE APPROPRIATELY EXERCISED ALTHOUGH THE ADJUDICATION OF
THE RIGHTS OF THE LITIGANTS MAY NOT REQUIRE THE AWARD OF PROCESS OR THE
PAYMENT OF DAMAGES.  NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, SUPRA,
P. 263; TUTUN V. UNITED STATES, 270 U.S. 568, 576, 577; FIDELITY
NATIONAL BANK V. SWOPE, 274 U.S. 123, 132; OLD COLONY TRUST CO. V.
COMMISSIONER, SUPRA, P. 725.  AND AS IT IS NOT ESSENTIAL TO THE
EXERCISE OF THE JUDICIAL POWER THAT AN INJUNCTION BE SOUGHT,
ALLEGATIONS THAT IRREPARABLE INJURY IS THREATENED ARE NOT REQUIRED. 
NASHVILLE, C. & ST. L. RY. CO. V. WALLACE, SUPRA, P. 264. 

WITH THESE PRINCIPLES GOVERNING THE APPLICATION OF THE DECLARATORY
JUDGMENT ACT, WE TURN TO THE NATURE OF THE CONTROVERSY, THE RELATION
AND INTERESTS OF THE PARTIES, AND THE RELIEF SOUGHT IN THE INSTANT
CASE. 

SECOND.  THERE IS HERE A DISPUTE BETWEEN PARTIES WHO FACE EACH OTHER
IN AN ADVERSARY PROCEEDING.  THE DISPUTE RELATES TO LEGAL RIGHTS AND
OBLIGATIONS ARISING FROM THE CONTRACTS OF INSURANCE.  THE DISPUTE IS
DEFINITE AND CONCRETE, NOT HYPOTHETICAL OR ABSTRACT.  PRIOR TO THIS
SUIT, THE PARTIES HAD TAKEN ADVERSE POSITIONS WITH RESPECT TO THEIR
EXISTING OBLIGATIONS.  THEIR CONTENTIONS CONCERNED THE DISABILITY
BENEFITS WHICH WERE TO BE PAYABLE UPON PRESCRIBED CONDITIONS.  ON THE
ONE SIDE, THE INSURED CLAIMED THAT HE HAD BECOME TOTALLY AND
PERMANENTLY DISABLED AND HENCE WAS RELIEVED OF THE OBLIGATION TO
CONTINUE THE PAYMENT OF PREMIUMS AND WAS ENTITLED TO THE STIPULATED
DISABILITY BENEFITS AND TO THE CONTINUANCE OF THE POLICIES IN FORCE. 
THE INSURED PRESENTED THIS CLAIM FORMALLY, AS REQUIRED BY THE
POLICIES.  IT WAS A CLAIM OF A PRESENT, SPECIFIC RIGHT.  ON THE OTHER
SIDE, THE COMPANY MADE AN EQUALLY DEFINITE CLAIM THAT THE ALLEGED BASIC
FACT DID NOT EXIST, THAT THE INSURED WAS NOT TOTALLY AND PERMANENTLY
DISABLED AND HAD NOT BEEN RELIEVED OF THE DUTY TO CONTINUE THE PAYMENT
OF PREMIUMS, THAT IN CONSEQUENCE THE POLICIES HAD LAPSED, AND THAT THE
COMPANY WAS THUS FREED FROM ITS OBLIGATION EITHER TO PAY DISABILITY
BENEFITS OR TO CONTINUE THE INSURANCE IN FORCE.  SUCH A DISPUTE IS
MANIFESTLY SUSCEPTIBLE OF JUDICIAL DETERMINATION.  IT CALLS, NOT FOR AN
ADVISORY OPINION UPON A HYPOTHETICAL BASIS, BUT FOR AN ADJUDICATION OF
PRESENT RIGHT UPON ESTABLISHED FACTS. 

THAT THE DISPUTE TURNS UPON QUESTIONS OF FACT DOES NOT WITHDRAW IT,
AS THE RESPONDENT SEEMS TO CONTEND, FROM JUDICIAL COGNIZANCE.  THE
LEGAL CONSEQUENCES FLOW FROM THE FACTS AND IT IS THE PROVINCE OF THE
COURTS TO ASCERTAIN AND FIND THE FACTS IN ORDER TO DETERMINE THE LEGAL
CONSEQUENCES.  THAT IS EVERY DAY PRACTICE.  EQUALLY UNAVAILING IS
RESPONDENT'S CONTENTION THAT THE DISPUTE RELATES TO THE EXISTENCE OF A
"MUTABLE FACT" AND A "CHANGEABLE CONDITION - THE STATE OF THE INSURED'S
HEALTH."  THE INSURED ASSERTED A TOTAL AND PERMANENT DISABILITY
OCCURRING PRIOR TO OCTOBER, 1930, AND CONTINUING THEREAFTER.  UPON THAT
GROUND HE CEASED TO PAY PREMIUMS.  HIS CONDITION AT THE TIME HE STOPPED
PAYMENT, WHETHER HE WAS THEN TOTALLY AND PERMANENTLY DISABLED SO THAT
THE POLICIES DID NOT LAPSE, IS NOT A "MUTABLE" BUT A DEFINITE FACT.  IT
IS A CONTROLLING FACT WHICH CAN BE FINALLY DETERMINED AND WHICH FIXES
RIGHTS AND OBLIGATIONS UNDER THE POLICIES.  IF IT WERE FOUND THAT THE
INSURED WAS NOT TOTALLY AND PERMANENTLY DISABLED WHEN HE CEASED TO PAY
PREMIUMS AND HENCE WAS IN DEFAULT, THE EFFECT OF THAT DEFAULT AND THE
CONSEQUENT RIGHT OF THE COMPANY TO TREAT THE POLICIES AS LAPSED COULD
BE DEFINITELY AND FINALLY ADJUDICATED.  IF IT WERE FOUND THAT HE WAS
TOTALLY AND PERMANENTLY DISABLED AS HE CLAIMED, THE DUTY OF THE COMPANY
TO PAY THE PROMISED DISABILITY BENEFITS AND TO MAINTAIN THE POLICIES IN
FORCE COULD LIKEWISE BE ADJUDICATED.  THERE WOULD BE NO DIFFICULTY IN
EITHER EVENT IN PASSING A CONCLUSIVE DECREE APPLICABLE TO THE FACTS
FOUND AND TO THE OBLIGATIONS OF THE PARTIES CORRESPONDING TO THOSE
FACTS.  IF THE INSURED MADE GOOD HIS CLAIM, THE DECREE ESTABLISHING HIS
RIGHT TO THE DISABILITY BENEFITS, AND TO THE CONTINUANCE OF THE
POLICIES IN FORCE DURING THE PERIOD OF THE PROVED DISABILITY, WOULD BE
NONE THE LESS FINAL AND CONCLUSIVE AS TO THE MATTERS THUS DETERMINED
EVEN THOUGH A DIFFERENT SITUATION MIGHT LATER ARISE IN THE EVENT OF HIS
RECOVERY FROM THAT DISABILITY AND HIS FAILURE AFTER THAT RECOVERY TO
COMPLY WITH THE REQUIREMENTS OF THE POLICIES.  SUCH A CONTENTION WOULD
PRESENT A DISTINCT SUBJECT MATTER. 

IF THE INSURED HAD BROUGHT SUIT TO RECOVER THE DISABILITY BENEFITS
CURRENTLY PAYABLE UNDER TWO OF THE POLICIES THERE WOULD HAVE BEEN NO
QUESTION THAT THE CONTROVERSY WAS OF A JUSTICIABLE NATURE, WHETHER OR
NOT THE AMOUNT INVOLVED WOULD HAVE PERMITTED ITS DETERMINATION IN A
FEDERAL COURT.  AGAIN, ON REPUDIATION BY THE INSURER OF LIABILITY IN
SUCH A CASE AND INSISTENCE BY THE INSURED THAT THE REPUDIATION WAS
UNJUSTIFIED BECAUSE OF HIS DISABILITY, THE INSURED WOULD HAVE "SUCH AN
INTEREST IN THE PRESERVATION OF THE CONTRACTS THAT HE MIGHT MAINTAIN A
SUIT IN EQUITY TO DECLARE THEM STILL IN BEING."  BURNET V. WELLS, 289
U.S. 670, 680; COHEN V. N.Y. MUTUAL LIFE INS. CO., 50 N.Y. 610, 624;
FIDELITY NATIONAL BANK V. SWOPE, SUPRA.  BUT THE CHARACTER OF THE
CONTROVERSY AND OF THE ISSUE TO BE DETERMINED IS ESSENTIALLY THE SAME
WHETHER IT IS PRESENTED BY THE INSURED OR BY THE INSURER.  WHETHER THE
DISTRICT COURT MAY ENTERTAIN SUCH A SUIT BY THE INSURER, WHEN THE
CONTROVERSY AS HERE IS BETWEEN CITIZENS OF DIFFERENT STATES OR
OTHERWISE IS WITHIN THE RANGE OF THE FEDERAL JUDICIAL POWER, IS FOR THE
CONGRESS TO DETERMINE.  IT IS THE NATURE OF THE CONTROVERSY, NOT THE
METHOD OF ITS PRESENTATION OR THE PARTICULAR PARTY WHO PRESENTS IT,
THAT IS DETERMINATIVE.  SEE GULLY V. INTERSTATE NATURAL GAS CO., 82
F.(2D) 145, 149; TRAVELERS INSURANCE CO. V. HELMER, 15 F.SUPP.  355,
356; NEW YORK LIFE INSURANCE CO. V. LONDON, 15 F.SUPP.  586, 589. 

WE HAVE NO OCCASION TO DEAL WITH QUESTIONS THAT MAY ARISE IN THE
PROGRESS OF THE CAUSE, AS THE COMPLAINT HAS BEEN DISMISSED IN LIMINE. 
QUESTIONS OF BURDEN OF PROOF OR MODE OF TRIAL HAVE NOT BEEN CONSIDERED
BY THE COURTS BELOW AND ARE NOT BEFORE US. 

OUR CONCLUSION IS THAT THE COMPLAINT PRESENTED A CONTROVERSY TO WHICH
THE JUDICIAL POWER EXTENDS AND THAT AUTHORITY TO HEAR AND DETERMINE IT
HAS BEEN CONFERRED UPON THE DISTRICT COURT BY THE DECLARATORY JUDGMENT
ACT.  THE DECREE IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  REVERSED. 

FN1  THE ACT PROVIDES: 

"(1)  IN CASES OF ACTUAL CONTROVERSY THE COURTS OF THE UNITED STATES
SHALL HAVE POWER UPON PETITION, DECLARATION, COMPLAINT, OR OTHER
APPROPRIATE PLEADINGS TO DECLARE RIGHTS AND OTHER LEGAL RELATIONS OF
ANY INTERESTED PARTY PETITIONING FOR SUCH DECLARATION, WHETHER OR NOT
FURTHER RELIEF IS OR COULD BE PRAYED, AND SUCH DECLARATION SHALL HAVE
THE FORCE AND EFFECT OF A FINAL JUDGMENT OR DECREE AND BE REVIEWABLE AS
SUCH. 

"(2)  FURTHER RELIEF BASED ON A DECLARATORY JUDGMENT OR DECREE MAY BE
GRANTED WHENEVER NECESSARY OR PROPER.  THE APPLICATION SHALL BE BY
PETITION TO A COURT HAVING JURISDICTION TO GRANT THE RELIEF.  IF THE
APPLICATION BE DEEMED SUFFICIENT, THE COURT SHALL, ON REASONABLE
NOTICE, REQUIRE ANY ADVERSE PARTY, WHOSE RIGHTS HAVE BEEN ADJUDICATED
BY THE DECLARATION, TO SHOW CAUSE WHY FURTHER RELIEF SHOULD NOT BE
GRANTED FORTHWITH. 

"(3)  WHEN A DECLARATION OF RIGHT OR THE GRANTING OF FURTHER RELIEF
BASED THEREON SHALL INVOLVE THE DETERMINATION OF ISSUES OF FACT TRIABLE
BY A JURY, SUCH ISSUES MAY BE SUBMITTED TO A JURY IN THE FORM OF
INTERROGATORIES, WITH PROPER INSTRUCTIONS BY THE COURT, WHETHER A
GENERAL VERDICT BE REQUIRED OR NOT." 
..END :













LAWRENCE V. SHAW, 300 U.S. 245 


NO. 549.  ARGUED FEBRUARY 12, 1937.  - DECIDED MARCH 1, 1937.  - 210
N.C. 352 - 186 S.E. 504, REVERSED. 


BANK CREDITS OF A VETERAN OF THE WORLD WAR, OR HIS GUARDIAN, WHICH DO
NOT REPRESENT OR FLOW FROM HIS INVESTMENTS, BUT RESULT FROM THE DEPOSIT
OF THE WARRANTS OR CHECKS RECEIVED FROM THE GOVERNMENT IN PAYMENT OF
BENEFITS, ARE EXEMPTED FROM LOCAL TAXATION BY THE WORLD WAR VETERANS'
ACT, SEC. 22, AND THE ACT OF AUGUST 12, 1935, SECS. 3 AND 5, WHEN SUCH
DEPOSITS ARE MADE IN THE ORDINARY MANNER, SO THAT THE PROCEEDS OF
COLLECTION ARE SUBJECT TO DRAFT UPON DEMAND FOR THE VETERAN'S USE. 
TROTTER V. TENNESSEE, 290 U.S. 354, DISTINGUISHED.  P. 248. 

LAWRENCE, GUARDIAN, V. SHAW ET AL. 

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. 

CERTIORARI, 299 U.S. 537, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST LAWRENCE IN A PROCEEDING TO RECOVER A SUM PAID, UNDER PROTEST,
AS A TAX. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE CONTROVERSY IN THIS CASE RELATES TO THE LIABILITY TO LOCAL
TAXATION OF CERTAIN BANK DEPOSITS MADE BY THE PETITIONER AS GUARDIAN OF
AN INCOMPETENT VETERAN OF THE WORLD WAR.  IMMUNITY WAS CLAIMED UNDER
THE FEDERAL STATUTES.  WORLD WAR VETERANS ACT, 1924, SEC. 22,  FN1  43
STAT. 606, 613, 38 U.S.C. 454; ACT OF AUGUST 12, 1935, SECS. 3 AND 5,
FN2  49 STAT. 607, 609.  THE SUPREME COURT OF NORTH CAROLINA DENIED THE
IMMUNITY (210 N.C. 352; 186 S.E. 504) AND THIS COURT GRANTED A WRIT OF
CERTIORARI, JANUARY 4, 1937. 

THE CONTROVERSY WAS SUBMITTED TO THE STATE COURT UPON AN AGREED
CASE.  IT APPEARED THAT PETITIONER WAS APPOINTED GUARDIAN IN MAY, 1929,
AND THAT THE VETERAN THEN OWNED NO PROPERTY OTHER THAN CLAIMS AGAINST
THE UNITED STATES FOR UNPAID COMPENSATION AND INSURANCE.  THE TAX DATE
IN NORTH CAROLINA FOR PROPERTY TAXATION IS APRIL 1ST.  IN 1930 THE
GUARDIAN LISTED FOR TAXATION THE PROPERTY OF HIS WARD BUT THE TAX PAID
WAS REFUNDED UNDER A RULING OF THE ATTORNEY GENERAL OF THE STATE, AND
IN CONSEQUENCE NO PROPERTY OF THE WARD WAS LISTED AND NO TAX WAS PAID
IN THE SUBSEQUENT YEARS.  IN OCTOBER, 1935, HOWEVER, THE TAX OFFICIALS
ASSESSED THE WARD'S PROPERTY FOR EACH OF THE YEARS 1931 TO 1935,
INCLUSIVE.  THE PROPERTY CONSISTED OF DEPOSITS IN BANKS AND REAL ESTATE
LOANS.  NO QUESTION IS RAISED BY THE PETITIONER WITH RESPECT TO THE
TAXABILITY OF THE LATTER.  SEE TROTTER V. TENNESSEE, 290 U.S. 354. 

THE AGREED CASE SHOWED THE BANK DEPOSITS AS THEY STOOD ON APRIL 1ST
OF EACH YEAR.  FN3  IT DOES NOT APPEAR WHEN THE AMOUNTS MAKING UP THESE
ANNUAL BALANCES HAD BEEN DEPOSITED OR WHETHER THERE WAS ANY SPECIAL
AGREEMENT RELATING TO THEM.  THEY ARE SCHEDULED AS "DEPOSITS IN BANK,"
WITHOUT MORE.  THE STIPULATION STATES THAT THEY "REPRESENTED AND, IN
FACT, WERE THE COLLECTIONS FROM WARRANTS OR CHECKS DRAWN AND ISSUED BY
THE UNITED STATES GOVERNMENT IN PAYMENT OF COMPENSATION AND INSURANCE"
DUE TO THE WARD, THAT THESE WARRANTS OR CHECKS WERE DEPOSITED BY THE
GUARDIAN AND CREDITED IN HIS BANK ACCOUNT, AND THAT THE ITEMS ASSESSED
WERE "THE UNEXPENDED AND UNINVESTED BALANCES," IN THE HANDS OF THE
GUARDIAN, OF THE PAYMENTS THUS MADE BY THE GOVERNMENT.  FN4 PETITIONER
PAID THE TAXES UNDER PROTEST AND DEMANDED REFUND WHICH WAS REFUSED. 

WE ARE NOT CONCERNED WITH THE QUESTIONS SUBMITTED TO THE STATE COURT
UPON THE AGREED CASE SO FAR AS THEY RELATED TO THE AUTHORITY OF
OFFICIALS UNDER THE STATE LAW TO IMPOSE THE TAX IN 1935 FOR THE
PRECEDING YEARS.  THE PRESENT CONTENTION IS PRESENTED BY THE ANSWER TO
THE FIRST QUESTION WHICH WAS AS FOLLOWS: 

"WHERE A GUARDIAN OF A WORLD WAR VETERAN RECEIVES FROM THE VETERANS'
BUREAU OF THE UNITED STATES GOVERNMENT, WARRANTS OR CHECKS ISSUED BY
SAID GOVERNMENT IN PAYMENT OF ADJUSTED COMPENSATION OR INSURANCE DUE
THE GUARDIAN'S WARD, AND SUCH WARRANTS OR CHECKS ARE DEPOSITED BY THE
GUARDIAN IN A DEPOSITORY, COLLECTED BY IT, AND THE PROCEEDS ARE
CREDITED IN THE GUARDIAN'S ACCOUNT CARRIED IN SUCH DEPOSITORY, ARE SUCH
DEPOSITS SUBJECT TO TAXATION BY COUNTY OR MUNICIPAL AUTHORITIES?" 

THE STATE COURT ANSWERED THIS QUESTION IN THE AFFIRMATIVE, DENYING
THE FEDERAL RIGHT ASSERTED. 

IN TROTTER V. TENNESSEE, SUPRA, WE CONSIDERED THE PROVISION OF SEC.
22 OF THE WORLD WAR VETERANS' ACT, 1924,  FN5  IN RELATION TO
INVESTMENTS BY THE GUARDIAN OF AN INCOMPETENT VETERAN OF THE MONEYS
RECEIVED FROM THE GOVERNMENT FOR COMPENSATION AND INSURANCE.  WE HELD
THAT LAND PURCHASED BY THE GUARDIAN WITH SUCH MONEYS WAS NOT EXEMPT. 
WE SAID:  "THE STATUTE SPEAKS OF 'COMPENSATION, INSURANCE, AND
MAINTENANCE AND SUPPORT ALLOWANCE PAYABLE' TO THE VETERAN, AND DECLARES
THAT THESE SHALL BE EXEMPT.  WE SEE NO TOKEN OF A PURPOSE TO EXTEND A
LIKE IMMUNITY TO PERMANENT INVESTMENTS OR THE FRUITS OF BUSINESS
ENTERPRISES.  VETERANS WHO CHOOSE TO TRADE IN LAND OR IN MERCHANDISE,
IN BONDS OR IN SHARES OF STOCK, MUST PAY THEIR TRIBUTE TO THE STATE." 
ID., PP. 356, 357. 

HAVING NO DOUBT THAT THE MONEYS PAYABLE BY THE GOVERNMENT TO THE
VETERAN WERE EXEMPT UNTIL THEY CAME INTO HIS HANDS OR THOSE OF HIS
GUARDIAN, WE LEFT THE QUESTION OPEN "WHETHER THE EXEMPTION REMAINED IN
FORCE WHILE THEY CONTINUED IN THOSE HANDS OR ON DEPOSIT IN A BANK." 
THE WORLD WAR VETERANS' ACT, 1924, PROVIDED THAT THE COMPENSATION AND
INSURANCE ALLOWANCES SHOULD BE "EXEMPT FROM ALL TAXATION."  THE ACT OF
1935  FN6  IS MORE SPECIFIC, PROVIDING THAT THE PAYMENTS SHALL BE
EXEMPT FROM TAXATION AND SHALL NOT BE LIABLE TO PROCESS "EITHER BEFORE
OR AFTER RECEIPT BY THE BENEFICIARY."  THERE WAS ADDED THE
QUALIFICATION THAT THE EXEMPTION SHOULD NOT EXTEND "TO ANY PROPERTY
PURCHASED IN PART OR WHOLLY OUT OF SUCH PAYMENTS."  THIS MORE DETAILED
PROVISION WAS SUBSTITUTED FOR THAT OF THE EARLIER ACT AND WAS EXPRESSLY
MADE APPLICABLE TO PAYMENTS THERETOFORE MADE.  WE THINK IT CLEAR THAT
THE PROVISION OF THE LATER ACT WAS INTENDED TO CLARIFY THE FORMER
RATHER THAN TO CHANGE ITS IMPORT AND IT WAS WITH THAT PURPOSE THAT IT
WAS MADE RETROACTIVE.  FN7 

THE STATE COURT FOUND NO DISTINCTION WITH RESPECT TO TAXABILITY
"BETWEEN STOCKS AND BONDS, AND NOTES AND BANK DEPOSITS AND OTHER
SOLVENT CREDITS."  AMPLIFYING THIS POSITION, COUNSEL FOR RESPONDENT AT
THIS BAR, WHILE CONCEDING THAT THE WARRANTS OR CHECKS ISSUED BY THE
GOVERNMENT WOULD BE EXEMPT, AND THAT IF THEY WERE CASHED THE MONEYS
THUS RECEIVED WOULD LIKEWISE BE EXEMPT UNTIL THEY WERE INVESTED,
CONTENDED THAT IF THE GUARDIAN INSTEAD OF CASHING THE WARRANTS OR
CHECKS DEPOSITED THEM IN BANK, THE RESULTING BANK CREDITS WOULD BE
TAXABLE.  WE THINK THAT THIS CONTENTION IS INADMISSIBLE.  CONGRESS HAS
DECLARED THAT THE PAYMENTS OF BENEFITS BY THE GOVERNMENT SHALL BE
EXEMPT NOT ONLY BEFORE BUT "AFTER RECEIPT BY THE BENEFICIARY."  WE
CANNOT CONCEIVE THAT IT WAS THE INTENT OF CONGRESS THAT THE VETERAN
SHOULD LOSE THE BENEFIT OF THIS IMMUNITY, WHICH WOULD ATTACH TO THE
MONEYS IN HIS HANDS, BY DEPOSITING THE GOVERNMENT WARRANTS OR CHECKS IN
BANK TO BE COLLECTED AND CREDITED IN THE USUAL MANNER.  THESE PAYMENTS
ARE INTENDED PRIMARILY FOR THE MAINTENANCE AND SUPPORT OF THE VETERAN. 
TO THAT END NEITHER HE NOR HIS GUARDIAN IS OBLIGED TO KEEP THE MONEYS
ON HIS PERSON OR UNDER HIS ROOF.  AS THE IMMUNITY FROM TAXATION IS
CONTINUED AFTER THE PAYMENTS ARE RECEIVED, THE USUAL METHODS OF RECEIPT
MUST BE DEEMED AVAILABLE SO THAT THE AMOUNTS PAID BY THE GOVERNMENT MAY
BE PROPERLY SAFEGUARDED AND USED AS THE NEEDS OF THE VETERAN MAY
REQUIRE. 

THE PROVISION OF THE ACT OF 1935 THAT THE EXEMPTION SHOULD NOT APPLY
TO PROPERTY PURCHASED OUT OF THE MONEYS RECEIVED FROM THE GOVERNMENT
SHOWS THE INTENT TO DENY EXEMPTION TO INVESTMENTS, AS WAS RULED IN THE
TROTTER CASE.  IT IS OF COURSE TRUE THAT DEPOSITS IN BANK MAY BE MADE
UNDER A SPECIAL AGREEMENT BY WHICH THE DEPOSITS ASSUME THE CHARACTER OF
INVESTMENTS AND WOULD LOSE IMMUNITY ACCORDINGLY.  NO SUCH AGREEMENT IS
SHOWN HERE.  NOR ARE THE BANK BALANCES SHOWN TO BE THE PROCEEDS OF
INVESTMENTS.  THEY ARE STIPULATED TO BE "UNINVESTED BALANCES" OF THE
GOVERNMENT PAYMENTS.  SOME REFERENCE WAS MADE AT THE BAR TO THE
POSSIBLE EFFECT OF AN ALLOWANCE OF INTEREST UPON BANK DEPOSITS.  IT
DOES NOT APPEAR THAT THERE WAS SUCH AN ALLOWANCE IN THIS INSTANCE AND
WE DO NOT SUGGEST THAT A MERE ALLOWANCE OF INTEREST UPON DEPOSITS WOULD
BE ENOUGH TO DESTROY AN IMMUNITY WHERE IT WOULD OTHERWISE ATTACH.  WE
HOLD THAT THE IMMUNITY FROM TAXATION DOES ATTACH TO BANK CREDITS OF THE
VETERAN OR HIS GUARDIAN WHICH DO NOT REPRESENT OR FLOW FROM HIS
INVESTMENTS BUT RESULT FROM THE DEPOSIT OF THE WARRANTS OR CHECKS
RECEIVED FROM THE GOVERNMENT WHEN SUCH DEPOSITS ARE MADE IN THE
ORDINARY MANNER SO THAT THE PROCEEDS OF THE COLLECTION ARE SUBJECT TO
DRAFT UPON DEMAND FOR THE VETERAN'S USE.  IN ORDER TO CARRY OUT THE
INTENT OF THE STATUTE, THE AVAILS OF THE GOVERNMENT WARRANTS OR CHECKS
MUST BE DEEMED EXEMPT UNTIL THEY ARE EXPENDED OR INVESTED. 

THE ANSWER BY THE STATE COURT IS BROAD ENOUGH TO COVER BANK DEPOSITS
OF THAT SORT AND WE CONSIDER THE RULING IN THAT APPLICATION TO BE
CONTRARY TO THE FEDERAL STATUTE.  THE JUDGMENT IS REVERSED AND THE
CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED. 

FN1  SECTION 22 PROVIDES: 

"SEC. 22.  THAT THE COMPENSATION, INSURANCE, AND MAINTENANCE AND
SUPPORT ALLOWANCE PAYABLE UNDER TITLES II, III, AND IV, RESPECTIVELY,
SHALL NOT BE ASSIGNABLE; SHALL NOT BE SUBJECT TO THE CLAIMS OF
CREDITORS OF ANY PERSON TO WHOM AN AWARD IS MADE UNDER TITLES II, III,
OR IV; AND SHALL BE EXEMPT FROM ALL TAXATION:  PROVIDED, THAT SUCH
COMPENSATION, INSURANCE, AND MAINTENANCE AND SUPPORT ALLOWANCE SHALL BE
SUBJECT TO ANY CLAIMS WHICH THE UNITED STATES MAY HAVE, UNDER TITLES
II, III, IV, AND V, AGAINST THE PERSON ON WHOSE ACCOUNT THE
COMPENSATION, INSURANCE, OR MAINTENANCE AND SUPPORT ALLOWANCE IS
PAYABLE...." 

FN2  SECTIONS 3 AND 5 OF THE ACT OF 1935 PROVIDE: 

"SEC. 3.  PAYMENTS OF BENEFITS DUE OR TO BECOME DUE SHALL NOT BE
ASSIGNABLE, AND SUCH PAYMENTS MADE TO, OR ON ACCOUNT OF, A BENEFICIARY
UNDER ANY OF THE LAWS RELATING TO VETERANS SHALL BE EXEMPT FROM
TAXATION, SHALL BE EXEMPT FROM THE CLAIMS OF CREDITORS, AND SHALL NOT
BE LIABLE TO ATTACHMENT, LEVY, OR SEIZURE BY OR UNDER ANY LEGAL OR
EQUITABLE PROCESS WHATEVER, EITHER BEFORE OR AFTER RECEIPT BY THE
BENEFICIARY.  SUCH PROVISIONS SHALL NOT ATTACH TO CLAIMS OF THE UNITED
STATES ARISING UNDER SUCH LAWS NOR SHALL THE EXEMPTION HEREIN CONTAINED
AS TO TAXATION EXTEND TO ANY PROPERTY PURCHASED IN PART OR WHOLLY OUT
OF SUCH PAYMENTS.  SECTION 4747 OF THE REVISED STATUTES AND SECTION 22
OF THE WORLD WAR VETERANS' ACT, 1924, ARE HEREBY REPEALED, AND ALL
OTHER ACTS INCONSISTENT HEREWITH ARE HEREBY MODIFIED ACCORDINGLY...." 

"SEC. 5.  THAT THIS ACT SHALL TAKE EFFECT AND BE IN FORCE FROM AND
AFTER ITS PASSAGE, BUT THE PROVISIONS HEREOF SHALL APPLY TO PAYMENTS
MADE HERETOFORE UNDER ANY OF THE ACTS MENTIONED HEREIN." 

FN3  THEY WERE $5787.72 IN 1931, $3868.42 IN 1932, $3704.76 IN 1933,
$987.48 IN 1934, AND $2730.93 IN 1935. 

FN4  THE PARAGRAPH OF THE AGREED CASE UPON THIS POINT IS AS FOLLOWS: 

"THAT EACH OF THE SAID ITEMS SET OUT AND SHOWN IN PARAGRAPH 16 AS
'DEPOSITS IN BANKS,' FOR EACH OF SAID YEARS, REPRESENTED AND, IN FACT,
WERE THE COLLECTIONS FROM WARRANTS OR CHECKS DRAWN AND ISSUED BY THE
UNITED STATES GOVERNMENT IN PAYMENT OF COMPENSATION AND INSURANCE DUE
BY IT TO PLAINTIFF'S WARD, WHICH SAID WARRANTS OR CHECKS WERE DEPOSITED
BY PLAINTIFF IN SUCH DEPOSITORIES AND CREDITED BY THEM IN THE
PLAINTIFF'S ACCOUNT AS GUARDIAN AFORESAID; AND THE AMOUNTS OF SAID
ASSESSMENTS AND LEVIES MADE UP BY SAID DEFENDANTS ON THE ITEMS
AFORESAID, AND SHOWN IN SAID PARAGRAPH, REPRESENTED AND WERE, IN FACT,
THE UNEXPENDED AND UNINVESTED BALANCES IN THE HANDS OF THE SAID
GUARDIAN OF PAYMENTS AFORESAID BY THE U.S. GOVERNMENT, OF WARRANTS OR
CHECKS ISSUED BY IT FOR COMPENSATION AND INSURANCE DUE BY IT TO THE
SAID VETERAN." 

FN5  SEE NOTE 1. 

FN6  SEE NOTE 2. 

FN7  SEE REPORT OF THE COMMITTEE ON FINANCE OF THE SENATE, SEN. REP.
NO. 1072, 74TH CONG., 1ST SESS.
..END :












SUMI V. YOUNG, 300 U.S. 251 


NO. 406.  ARGUED FEBRUARY 3, 1937.  - DECIDED MARCH 1, 1937.  - 83
F.(2D) 752, AFFIRMED. 


1.  AN ORDER OF THE DISTRICT COURT FOR ALASKA INVOLVING NO STATUTE OR
TREATY OF THE UNITED STATES NOR ANY AUTHORITY EXERCISED THEREUNDER, NOR
ANY MONETARY VALUE IN EXCESS OF $1,000.00, IS NOT APPEALABLE TO THE
CIRCUIT COURT OF APPEALS UNDER SEC. 128, JUD.  CODE, AS AMENDED BY THE
ACT OF FEBRUARY 13, 1925, NOR UNDER SEC. 943 OF THE ACT OF JUNE 6,
1900, THE ALASKA CODE, COMPILED LAWS OF ALASKA (1933), SEC. 4574.  P.
252. 

2.  PROVISIONS OF THE ALASKA CIVIL CODE ARE NOT LAWS OF THE UNITED
STATES WITHIN THE INTENDMENT OF SEC. 128, JUD.  CODE.  THEY ARE SPECIAL
OR LOCAL LAWS DESIGNED TO MEET CONDITIONS PECULIAR TO THAT TERRITORY. 
P. 253. 

SUMI V. YOUNG. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 299 U.S. 534, TO REVIEW A JUDGMENT DISMISSING AN APPEAL
FROM A PROBATE ORDER MADE BY THE DISTRICT COURT IN ALASKA. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

IN THE PROBATE COURT, FAIRBANKS, ALASKA, - OCTOBER, 1934, - A CONTEST
AROSE OVER THE APPOINTMENT OF A GUARDIAN FOR TWO MINOR CHILDREN. 
PETITIONER'S APPLICATION FAILED.  RESPONDENT WAS DESIGNATED.  THE
DISTRICT COURT HEARD THE MATTER DE NOVO AND APPROVED THIS ACTION. 

UPON MOTION, THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT
DISMISSED THE APPEAL FOR LACK OF JURISDICTION.  THE MOTION AVERRED:
(1) THE CAUSE INVOLVES NO QUESTION ARISING UNDER THE CONSTITUTION,
STATUTE OR TREATY OF THE UNITED STATES, OR ANY AUTHORITY EXERCISED
THEREUNDER; (2) NO MONETARY VALUE EXCEEDING $1,000.00 IS INVOLVED; (3)
THE PETITIONER WAS NOT A PARTY IN THE PROBATE COURT.  SECTION 128,
JUDICIAL CODE,  FN1  ALSO SEC. 943, ACT OF JUNE 6, 1900,  FN2  WERE
RELIED UPON IN OPPOSITION. 

THE CIRCUIT COURT OF APPEALS COULD FIND NO QUESTION UNDER THE
CONSTITUTION, STATUTE OR TREATY OF THE UNITED STATES, OR AUTHORITY
EXERCISED THEREUNDER; NOR ANY CONTROVERSY CONCERNING MONEY, PROPERTY,
OR PROPERTY RIGHTS.  IT CONCLUDED THAT SEC. 128, JUDICIAL CODE, GAVE NO
JURISDICTION; ALSO THAT SEC. 943, ACT JUNE 6, 1900, CONFERS NONE SINCE
IT ONLY DIRECTS THAT ORDERS OF THE DISTRICT COURT OF ALASKA IN PROBATE
CASES SHALL BE DEEMED JUDGMENTS SUBJECT TO APPEAL AS PROVIDED BY SEC.
128. 

THE PETITIONER INSISTS THAT THE CAUSE INVOLVES CONSTRUCTION AND
APPLICATION OF SEVERAL SECTIONS ALASKA CIVIL CODE,  FN3  AND THAT
JURISDICTION IS CONFERRED BY SEC. 128; ALSO THAT SEC. 943, ACT JUNE 6,
1900, IS APPLICABLE. 

CONSIDERING SUMMERS V. UNITED STATES, 231 U.S. 92, WE CANNOT REGARD
PROVISIONS OF THE ALASKA CIVIL CODE AS LAWS OF THE UNITED STATES WITHIN
THE INTENDMENT OF SEC. 128.  THEY ARE SPECIAL OR LOCAL LAWS DESIGNED TO
MEET CONDITIONS PECULIAR TO THAT TERRITORY.  IT FOLLOWS THAT THIS
IS AIDED BY THE WORDS "IN ALL OTHER CIVIL CASES WHEREIN THE VALUE IN
CONTROVERSY, EXCLUSIVE OF INTEREST AND COSTS, EXCEEDS $1,000 ...  AND
IN ALL HABEAS CORPUS PROCEEDINGS."  IF EVERY CASE ARISING UNDER THE
CIVIL CODE INVOLVES A STATUTE OF THE UNITED STATES, THIS CLAUSE IS
INAPPROPRIATE. 

MOREOVER, TO BRING WITHIN THE APPELLATE JURISDICTION OF THE CIRCUIT
COURT OF APPEALS EVERY ORDER OF THE DISTRICT COURT OF ALASKA CONCERNING
GUARDIANSHIP CLAIMS AGAINST ESTATES, DISTRIBUTIONS, ETC., WOULD HINDER
THE MANIFEST PURPOSE TO LIMIT AND DEFINITELY ESTABLISH THE JURISDICTION
OF THAT COURT DISCLOSED BY JUDICIAL CODE, 1911, AND THE AMENDING ACT OF
1925.  THE ALASKA CIVIL CODE IS AN ELABORATE ACT OF CONGRESS - 230
PRINTED PAGES - WHICH UNDERTAKES TO PRESCRIBE THE LAW ON A GREAT MANY
SUBJECTS. 

THE PROVISION OF SEC. 943, ACT OF JUNE 6, 1900, APPLICABLE TO APPEALS
IN PROBATE CASES IN ALASKA, APPEARS IN THE MARGIN, ANTE NOTE 2. 

COUNSEL MAINTAIN THAT THIS MUST BE INTERPRETED AS IF IT READ: 

"AN ORDER OF THE DISTRICT COURT MADE IN A PROBATE CASE ON APPEAL TO
IT, SHALL BE DEEMED A JUDGMENT.  SUCH JUDGMENT IS APPEALABLE.  THE
MANNER OR MODE OF TAKING AND PERFECTING SUCH APPEAL SHALL BE THE SAME
MANNER OR MODE WHICH IS PROVIDED FOR THE TAKING AND PERFECTING OF AN
APPEAL FROM OTHER APPEALABLE JUDGMENTS MADE AND ENTERED IN THE DISTRICT
COURT." 

THIS PROPOSAL IS IN CONFLICT WITH THE PURPOSE AND LIMITATIONS OF THE
LATER ACTS OF 1911 AND 1925.  THESE ARE OF GENERAL APPLICATION, AND ANY
PROVISION OF THE ALASKA CODE CONCERNING APPEALS TO THE CIRCUIT COURT OF
APPEALS INCONSISTENT WITH THEM IS INEFFECTIVE. 

MOREOVER, WE CANNOT ACCEPT THE VIEW THAT THE WORDS "IN THE MANNER
PROVIDED" FOUND IN SEC. 943 WERE INTENDED TO PERMIT APPEALS IN PROBATE
MATTERS WITHOUT RESTRICTION - TO RELIEVE THEM OF REQUIREMENTS GENERALLY
APPLICABLE TO CAUSES IN THE COURTS OF THE TERRITORY. 

THE COURT BELOW REACHED THE PROPER CONCLUSION.  AFFIRMED. 

FN1  JUDICIAL CODE, SEC. 128, 28 U.S.C. SEC. 225; ACT MARCH 3, 1911,
AMENDED FEB. 13, 1925, C. 229, 43 STAT. 936: 

"(A)  REVIEW OF FINAL DECISIONS.  THE CIRCUIT COURTS OF APPEAL SHALL
HAVE APPELLATE JURISDICTION TO REVIEW BY APPEAL OR WRIT OF ERROR FINAL
DECISIONS - 

"... 

"THIRD.  IN THE DISTRICT COURTS FOR ALASKA OR ANY DIVISION THEREOF,
AND FOR THE VIRGIN ISLANDS, IN ALL CASES, CIVIL AND CRIMINAL, WHEREIN
THE CONSTITUTION OR A STATUTE OR TREATY OF THE UNITED STATES OR ANY
AUTHORITY EXERCISED THEREUNDER IS INVOLVED; IN ALL OTHER CIVIL CASES
WHEREIN THE VALUE IN CONTROVERSY, EXCLUSIVE OF INTEREST AND COSTS,
EXCEEDS $1,000; IN ALL OTHER CRIMINAL CASES WHERE THE OFFENSE CHARGED
IS PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR OR BY
DEATH, AND IN ALL HABEAS CORPUS PROCEEDINGS; AND IN THE DISTRICT COURT
FOR THE CANAL ZONE IN THE CASES AND MODE PRESCRIBED IN SECTIONS 1307,
1324, 1336, AND 1341 TO 1357 OF TITLE 48." 

FN2  ACT JUNE 6, 1900, C. 786, 31 STAT. 480.  (SEC. 943 CARTER'S
ANNOTATED CODES; SEC. 1775 COMPILED LAWS OF ALASKA 1913; SEC. 4574
COMPILED LAWS OF ALASKA 1933): 

"SEC. 943.  UPON SUCH HEARING THE DISTRICT COURT OR JUDGE THEREOF
SHALL DETERMINE THE ISSUES SO RAISED ACCORDING TO THE VERY RIGHT OF THE
MATTER AND MAKE SUCH ORDER IN THE PREMISES AS HE MAY SEE FIT, WHICH
ORDER SHALL BE ENTERED IN A DOCKET TO BE KEPT BY THE CLERK OF THE COURT
FOR THAT PURPOSE, PROPERLY INDEXED, AND A COPY OF THE SAME SHALL BE
FORWARDED TO THE COMMISSIONER BEFORE WHOM THE EXCEPTIONS WERE FILED,
WHO SHALL THEREUPON PROCEED IN ACCORDANCE WITH SUCH ORDER.  SUCH ORDERS
SHALL BE DEEMED A JUDGMENT, SUBJECT TO APPEAL IN THE MANNER PROVIDED
FOR APPEALS FROM JUDGMENTS IN THE DISTRICT COURT." 

FN3  31 STAT. 321. 

MR. JUSTICE STONE AND MR. JUSTICE CARDOZO CONCUR IN THE RESULT, BUT
AS THEY THINK THE CASE MADE ON THE RECORD IS NOT ONE "INVOLVING"
PROVISIONS OF THE ALASKA CODE IT SEEMS UNNECESSARY TO RESOLVE THE MORE
DOUBTFUL QUESTION WHETHER THEY ARE STATUTES OF THE UNITED STATES. 
..END :






















HOFFMAN V. RAUCH, 300 U.S. 255 


NO. 563.  ARGUED FEBRUARY 12, 1937.  - DECIDED MARCH 1, 1937.  - 85
F.(2D) 1000, REVERSED. 


1.  BONDS HELD BY A NATIONAL BANK FOR SAFE KEEPING ONLY, WERE SOLD BY
THE CASHIER, WITHOUT AUTHORITY FROM THEIR OWNER, AND THE PRICE WAS
CHARGED TO THE BUYER'S DEPOSIT ACCOUNT IN THE BANK.  LATER, THE BANK
WAS DECLARED INSOLVENT AND A RECEIVER TOOK CHARGE.  HELD THAT THE OWNER
OF THE BONDS WAS NOT A PREFERRED CREDITOR.  P. 256. 

NOTHING OF VALUE WAS ADDED TO THE BANK'S PROPERTY.  NOTHING NEW CAME
INTO ITS TREASURY.  A CREDIT ENTRY AGAINST AN OUTSTANDING OBLIGATION
REPRESENTED THE ONLY POSSIBLE BENEFIT.  ITS TOTAL LIABILITIES WERE NOT
REDUCED SINCE A NEW OBLIGATION AROSE TO PAY TO THE OWNER THE VALUE OF
THE BONDS. 

2.  WHEN A CLAIM IS MADE FOR PREFERENCE AGAINST FUNDS HELD BY THE
RECEIVER OF A NATIONAL BANK, THE BURDEN IS UPON THE CLAIMANT TO
ESTABLISH HIS TITLE; HE MUST DEFINITELY TRACE SOMETHING OF VALUE WHICH
BELONGED TO HIM, OR THE AVAILS THEREFROM, INTO THE RECEIVER'S
POSSESSION.  A MERE SHOWING THAT THE BANK WRONGLY USED PROPERTY OF
ANOTHER IN DISCHARGING ITS INDEBTEDNESS DOES NOT SUFFICE TO ESTABLISH A
PREFERRED CLAIM AGAINST THE RECEIVER.  P. 257. 

HOFFMAN V. RAUCH, ADMINISTRATOR. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 299 U.S. 538, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
RECOVERED AGAINST THE RECEIVER OF A NATIONAL BANK BY THE ADMINISTRATOR
OF ONE WHOSE BONDS THE BANK, WHILE HOLDING FOR SAFE KEEPING, HAD
WRONGFULLY SOLD. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

THE FIRST NATIONAL BANK, BOSWELL, PENNSYLVANIA, WAS DECLARED
INSOLVENT JANUARY 26, 1932.  SHORTLY THEREAFTER A RECEIVER TOOK
CHARGE. 

JANUARY 21, 1932, THE BANK'S CASHIER, WITHOUT HER CONSENT, SOLD FOUR
LIBERTY BONDS ($100.00 EACH), BELONGING TO MRS. RAUCH AND HELD BY IT
FOR SAFEKEEPING, TO THE LOHRS.  THE PURCHASE PRICE WAS CHARGED TO THEIR
DEPOSIT ACCOUNT. 

MRS. RAUCH DIED JUNE 2, 1932.  CLAIMING A PREFERENCE, RESPONDENT, HER
ADMINISTRATOR, REFUSED THE RECEIVER'S OFFER OF A GENERAL CLAIM AGAINST
THE ESTATE AND BROUGHT SUIT.  UPON A DIRECTED VERDICT THE ADMINISTRATOR
OBTAINED JUDGMENT AS A PREFERRED CREDITOR.  THE COURT WAS OF OPINION
"THAT THE ASSETS OF THE BANK WERE AUGMENTED WHEN THE BANK RECEIVED FROM
ITS CUSTOMER THE PRICE AGREED UPON FOR SAID BONDS AND, THEREFORE, THAT
THE PLAINTIFF IS ENTITLED TO PARTICIPATE IN THE DISTRIBUTION OF THE
ASSETS OF THE DEFENDANT BANK AS A PREFERRED CREDITOR."  THE CIRCUIT
COURT OF APPEALS AFFIRMED WITH AN OPINION WHICH STATES:  "WITH THE
DISTRICT JUDGE, WE THINK THAT THE PROCEEDS OF THESE BONDS AUGMENTED THE
ASSETS OF THE BANK.  THEY CERTAINLY REDUCED ITS LIABILITY TO OTHERS." 

PETITIONER MAINTAINS THAT THE BANK'S ASSETS WERE NOT INCREASED
THROUGH SALE OF THE BONDS; THAT NOTHING AROSE THEREFROM WHICH IN
ORIGINAL OR CHANGED FORM CAN BE TRACED INTO THE HANDS OF THE RECEIVER. 

RESPONDENT SUBMITS THAT SINCE THE BANK USED THE BONDS IN DISCHARGE OF
A LIABILITY IT "WAS THEREBY SAVED THE USE OF ITS OWN FUNDS FOR THAT
PURPOSE AND THE ASSETS OF THE BANK AT THE TIME OF CLOSING WERE
THEREFORE LARGER IN AMOUNT THAN THEY OTHERWISE WOULD HAVE BEEN.  A
DISCHARGE OR REDUCTION OF A LIABILITY PRODUCES A CORRESPONDING INCREASE
IN ASSETS.  FOR EVERY DEBIT THERE MUST BE A CREDIT." 

OBVIOUSLY, NOTHING OF VALUE WAS ADDED TO THE BANK'S PROPERTY. 
NOTHING NEW CAME INTO ITS TREASURY.  A CREDIT ENTRY AGAINST AN
OUTSTANDING OBLIGATION REPRESENTED THE ONLY POSSIBLE BENEFIT.  ITS
TOTAL LIABILITIES WERE NOT REDUCED SINCE A NEW OBLIGATION AROSE TO PAY
TO THE OWNER THE VALUE OF THE BONDS. 

HERE IT IS ACCEPTED DOCTRINE THAT WHEN A CLAIM IS MADE FOR PREFERENCE
AGAINST FUNDS HELD BY THE RECEIVER OF A NATIONAL BANK THE BURDEN IS
UPON THE CLAIMANT TO ESTABLISH HIS TITLE; HE MUST DEFINITELY TRACE
SOMETHING OF VALUE WHICH BELONGED TO HIM, OR THE AVAILS THEREFROM, INTO
THE RECEIVER'S POSSESSION.  SCHUYLER V. LITTLEFIELD, 232 U.S. 707, 713;
TEXAS & PACIFIC RY. CO. V. POTTORFF, 291 U.S. 245, 261.  ALSO, A MERE
SHOWING THAT THE BANK WRONGLY USED PROPERTY OF ANOTHER IN DISCHARGING
ITS INDEBTEDNESS DOES NOT SUFFICE TO ESTABLISH A PREFERRED CLAIM
AGAINST THE RECEIVER. 

ACCORDINGLY, WE MUST HOLD THAT THE COURTS BELOW WERE IN ERROR AND
REVERSE THE CHALLENGED JUDGMENT. 

THE APPLICABLE LEGAL PRINCIPLES WERE MUCH DISCUSSED IN BLAKEY V.
BRINSON, 286 U.S. 254; TEXAS & PACIFIC RY. CO. V. POTTORFF, SUPRA;
JENNINGS V. UNITED STATES FIDELITY & GUARANTY CO., 294 U.S. 216; OLD
COMPANY'S LEHIGH, INC. V. MEEKER, 294 U.S. 227; ADAMS V. CHAMPION, 294
U.S. 231; AND FARMERS' NATIONAL BANK V. PRIBBLE, 15 F.(2D) 175, 176. 

JENNINGS V. UNITED STATES FIDELITY & GUARANTY CO., SUPRA, PP. 224
225, SAID:  "BUT THE SITUATION IS VERY DIFFERENT WHEN WHAT HAS BEEN
RECEIVED BY THE COLLECTING AGENT IS NOT A THING AT ALL, BUT A REDUCTION
OF LIABILITIES BY SET-OFF OR RELEASE  ...  A DEBT DOES NOT FURNISH A
CONTINUUM UPON WHICH A TRUST CAN BE IMPOSED AFTER CANCELLATION OR
EXTINGUISHMENT HAS PUT THE DEBT OUT OF EXISTENCE  ...  THE DIVIDEND
THAT WOULD BE DUE UPON THE DEBTS CANCELED THROUGH THE SET-OFF IF THEY
WERE NOW TO BE REVIVED IS THE MEASURE OF ANY BENEFIT ACCRUING TO THE
CREDITORS."  IN OLD COMPANY'S LEHIGH, INC. V. MEEKER, SUPRA, P. 229, WE
ASSERTED:  "WHAT WAS DONE BY THE MAMARONECK BANK ON JANUARY 14, 1933,
DID NOT INVOLVE IN ITS DOING THE CREATION OF A SPECIAL DEPOSIT OR AN
AUGMENTATION OF THE ASSETS.  WHAT WAS DONE HAD NO EFFECT EXCEPT TO
DIMINISH LIABILITIES BY REDUCING THE INDEBTEDNESS DUE TO A DEPOSITOR." 
AND ADAMS V. CHAMPION, SUPRA, DENIED PREFERENCE IN RESPECT OF SO MUCH
OF A BANK CREDIT ARISING FROM THE WRONGFUL DISPOSAL OF BONDS AS HAD
BEEN WITHDRAWN PRIOR TO THE RECEIVERSHIP.  ONLY THE BALANCE CAME TO THE
RECEIVER.  WE SAID, (239): "EVIDENCE IS LACKING THAT IT WAS WITHDRAWN
IN SUCH A FORM OR FOR SUCH PURPOSES AS TO BE REPRESENTED BY ANY ASSETS
FORMING PART OF THE ESTATE TODAY." 

RESPONDENT WAS NOT ENTITLED TO A PREFERENCE.  HIS RIGHT TO
PARTICIPATION AS A GENERAL CREDITOR IS CONCEDED. 

THE CAUSE MUST GO BACK TO THE DISTRICT COURT WITH DIRECTIONS TO
PROCEED IN ACCORDANCE WITH THIS OPINION.  REVERSED. 
..END :





















HENDERSON CO. V. THOMPSON, 300 U.S. 258 


NO. 397.  ARGUED FEBRUARY 2, 3, 1937.  - DECIDED MARCH 1, 1937.  - 14
F.SUPP.  328, AFFIRMED. 


UNDER A TEXAS STATUTE REGULATING PRODUCTION AND USE OF NATURAL GAS,
"SWEET" GAS, I.E., GAS CONTAINING NOT MORE THAN 1 1/2 GRAINS OF
HYDROGEN SULPHIDE PER 100 CUBIC FEET, AND THEREFORE SUITABLE FOR
HEATING AND LIGHTING, MAY NOT BE USED FOR THE MANUFACTURE OF CARBON
BLACK; BUT THAT SUBSTANCE MAY BE MANUFACTURED FROM "SOUR" GAS, I.E.,
GAS CONTAINING A GREATER PERCENT.  OF HYDROGEN SULPHIDE, NOT SUITABLE
IN ITS NATURAL STATE FOR HEATING AND LIGHTING.  AS APPLIED TO A COMPANY
PRODUCING OR OTHERWISE ACQUIRING "SWEET" GAS IN THE PANHANDLE FIELD FOR
WHICH IT HAD NO MARKET OTHER THAN TO SELL FOR MANUFACTURE OF CARBON
BLACK, HELD: 

1.  THE EVIDENCE DOES NOT SUSTAIN THE CONTENTION THAT THE PROHIBITION
WILL NOT OPERATE TO CONSERVE "SWEET" GAS, AS INTENDED, BUT WILL SERVE
ONLY TO DEPRIVE THE COMPLAINANT OF THE GAS TO WHICH IT IS ENTITLED,  -
SUCH CONTENTION BEING BASED ON THE HYPOTHESIS THAT THE GAS, IF NOT
EXTRACTED BY THE COMPANY WILL WANDER SUBTERRANEOUSLY TO A "SOUR" GAS
AREA OF THE FIELD AND BECOME "SOUR" GAS.  P. 264. 

2.  THERE IS NO BASIS IN THE EVIDENCE FOR HOLDING THE CLASSIFICATION
OF "SWEET" AND "SOUR" GAS ARBITRARY UPON THE HYPOTHESIS THAT THE
HYDROGEN SULPHIDE MAY BE REMOVED FROM THE LATTER AT TRIFLING EXPENSE. 
P. 264. 

3.  THERE IS NO BASIS IN THE EVIDENCE FOR THE CONTENTION THAT THE
STATUTE DISCRIMINATES UNREASONABLY BY PREVENTING THE PLAINTIFF AND
OTHERS IN LIKE POSITION FROM EXTRACTING "SWEET" GAS AND SELLING IT FOR
THE ONLY PURPOSE AVAILABLE, AND BY SUFFERING IT TO DRAIN AWAY MEANWHILE
ONLY TO AUGMENT THE SUPPLIES OF "SOUR" GAS PRODUCERS.  P. 265. 

4.  THE EVIDENCE DOES NOT SUPPORT THE OBJECTION THAT THE STATUTE
DISCRIMINATES ILLEGALLY BY PROHIBITING THE USE OF SWEET GAS IN CARBON
BLACK MANUFACTURE WHILE PERMITTING ITS USE AS FUEL BY MANUFACTURERS OF
OTHER ARTICLES.  P. 266. 

5.  THE EFFECT OF THE STATUTE UPON THE CONTRACTS OF THE COMPANY FOR
TAKING "SWEET" GAS FROM PRODUCERS AND DELIVERY TO A CARBON BLACK
MANUFACTURER IS MERELY INCIDENTAL AND DOES NOT VIOLATE THE TEXAS
CONSTITUTION.  TRAVELERS' INSURANCE CO. V. MARSHALL, 124 TEX. 45; 76
S.W.(2D) 1007, DISTINGUISHED.  P. 266. 

6.  IN CASE OF DOUBT, AND IN THE ABSENCE OF DEFINITIVE CONSTRUCTION
BY THE STATE COURTS, THIS COURT DEFERS TO THE LOWER FEDERAL COURT'S
UNDERSTANDING OF THE STATE CONSTITUTION.  P. 266. 

7.  THE NEEDS OF CONSERVING GAS IN A NATURAL GAS FIELD ARE TO BE
DETERMINED BY THE LEGISLATURE; THE PROHIBITION OF THE USE OF "SWEET"
GAS IN THE MANUFACTURE OF CARBON BLACK IS NOT SHOWN IN THIS CASE TO BE
AN ARBITRARY EXERCISE OF LEGISLATIVE POWER.  WALLS V. MIDLAND CARBON
CO., 254 U.S. 300.  PP. 264, 267. 

HENDERSON COMPANY V. THOMPSON ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF TEXAS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES DENYING A
PERMANENT INJUNCTION IN A SUIT TO RESTRAIN ENFORCEMENT OF A TEXAS
STATUTE, C. 120, ACTS OF 1935, AND ORDERS OF THE RAILROAD COMMISSION
THEREUNDER, RELATIVE TO THE USE OF NATURAL GAS IN THE MANUFACTURE OF
CARBON BLACK.  THE LOWER COURT'S OPINION ON AN APPLICATION FOR A
PRELIMINARY INJUNCTION IS REPORTED IN 12 F.SUPP.  519.  SEE ALSO
THOMPSON V. GAS UTILITIES CORP., ANTE, P. 55. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THE QUESTION FOR DECISION IS WHETHER THE PROHIBITION BY TEXAS OF THE
USE OF SWEET NATURAL GAS FOR THE MANUFACTURE OF CARBON BLACK IN THE
PANHANDLE FIELD IS VALID. 

THE SUIT IS BROUGHT IN THE FEDERAL COURT FOR WESTERN TEXAS BY THE
HENDERSON COMPANY, A MAINE CORPORATION.  IT CHALLENGES THE VALIDITY OF
THE FOLLOWING PROVISIONS OF CHAPTER 120 OF THE ACTS OF THE LEGISLATURE
OF TEXAS, 1935, FORTY-FOURTH REGULAR SESSION, COMMONLY KNOWN AS HOUSE
BILL 266: SUBDIVISIONS (G) AND (H) OF SEC. 2, WHICH DEFINE SWEET AND
SOUR GAS; FN1  SUBDIVISION (J) OF SEC. 3, WHICH PROHIBITS THE USE OF
SWEET GAS FOR THE MANUFACTURE OF CARBON BLACK; FN2  AND SUBDIVISION (1)
OF SEC. 7, WHICH DEFINES THE PURPOSES FOR WHICH SWEET GAS MAY BE USED. 
FN3  SEE THOMPSON V. CONSOLIDATED GAS UTILITIES CORP., ANTE, P. 55. 
THE SUIT CHALLENGES, ALSO, THE VALIDITY OF ORDERS ENTERED BY THE
RAILROAD COMMISSION PURSUANT TO THE STATUTE. 

THE HENDERSON COMPANY OWNS AND OPERATES IN THE PANHANDLE GAS FIELD A
CASINGHEAD GASOLINE PLANT WHICH IS CONNECTED WITH 21 GAS WELLS; HOLDS
OIL AND GAS LEASES UNDER WHICH SOME OF THESE WELLS ARE OPERATED; AND IS
UNDER CONTRACT TO TAKE GAS FROM THE OTHER WELLS.  PRIOR TO THE STATUTE,
IT RECEIVED AT ITS PLANT THE GAS FROM ALL THESE WELLS; EXTRACTED
THEREFROM THE GASOLINE CONTENT; AND HAD CONTRACTED TO SUPPLY THE
RESIDUE GAS TO THE COMBINED CARBON COMPANY.  THE ORDERS CHALLENGED
CLASSIFIED FOURTEEN OF THE WELLS AS SWEET GAS WELLS AND PROHIBITED BOTH
TAKING THE GAS THEREFROM FOR THE PURPOSE OF PROCESSING THE SAME FOR ITS
GASOLINE CONTENT AND DELIVERY OF THE RESIDUE FOR THE MANUFACTURE OF
CARBON BLACK.  THE SEVEN REMAINING WELLS, CLASSIFIED AS SOUR, CANNOT
FURNISH THE QUANTITY OF GAS REQUIRED BY THE COMPANY IN ITS GASOLINE
PLANT AND TO PERFORM ITS CONTRACT WITH THE CARBON COMPANY.  A SUPPLY
FROM OTHER SOUR GAS WELLS IS NOT AVAILABLE; AND FOR THE GAS FROM THE
FOURTEEN WELLS CLASSIFIED AS SWEET THERE IS NO OTHER USE. 

THE BILL CHARGES THAT THE STATUTE AND THE ORDERS ENTERED THEREUNDER
VIOLATE THE FEDERAL CONSTITUTION - THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMENDMENT AND THE CONTRACT CLAUSE; ALSO
PROVISIONS OF THE CONSTITUTION OF TEXAS.  THE MEMBERS OF THE COMMISSION
AND THE ATTORNEY GENERAL OF TEXAS ARE MADE DEFENDANTS.  THE RELIEF
SOUGHT IS TO ENJOIN ENFORCEMENT OF THE STATUTE, TEMPORARILY AND
PERMANENTLY. 

THE JURISDICTION, FEDERAL AND EQUITABLE, WAS NOT QUESTIONED.  ANSWERS
WERE FILED.  AN APPLICATION FOR A RESTRAINING ORDER WAS DENIED.  THAT
FOR A PRELIMINARY INJUNCTION, PROMPTLY HEARD BEFORE THREE JUDGES, WAS
ALSO DENIED, 12 F.SUPP.  519.  AND ON FINAL HEARING UPON AN EXTENSIVE
RECORD A DECREE WAS ENTERED DENYING THE PERMANENT INJUNCTION AND
DISMISSING THE BILL, 14 F.SUPP.  328.  FINDINGS OF FACT AND CONCLUSIONS
OF LAW WERE FILED IN COMPLIANCE WITH EQUITY RULE 70 1/2.  THE CASE IS
HERE ON APPEAL. 

THE FINDINGS CONTAIN, AS IN THOMPSON V. CONSOLIDATED GAS UTILITIES
CORP., A DESCRIPTION OF THE CHARACTER AND THE DEVELOPMENT OF THE
PANHANDLE GAS FIELD.  IN THE WESTERN FIELD THE SWEET GAS ZONE LIES TO
THE SOUTH, OCCUPYING ABOUT TWO-THIRDS OF IT; THE SOUR GAS ZONE LIES TO
THE NORTH AND OCCUPIES ABOUT ONE-THIRD.  PLANTS WHICH STRIP THE GAS OF
ITS GASOLINE CONTENT AND CARBON BLACK PLANTS WHICH USE THE RESIDUE ARE
APPARENTLY ACCESSIBLE TO BOTH ZONES.  FOR THOSE PURPOSES EITHER SWEET
OR SOUR GAS CAN BE USED.  FOR THE SWEET GAS OF THE PANHANDLE FIELD
THERE IS ALSO A LARGE DEMAND FOR FUEL AND LIGHT.  FOR THE SOUR GAS IN
ITS NATURAL STATE THERE IS PRACTICALLY NO USE OTHER THAN IN THE
STRIPPING AND THE CARBON BLACK PLANTS.  THERE ARE 29 CARBON BLACK
PLANTS IN THE PANHANDLE FIELD.  THESE PRODUCE MORE THAN 70 PER CENT. OF
ALL CARBON BLACK MANUFACTURED IN THE UNITED STATES; AND THEY CONSUME,
ON THE AVERAGE, ABOUT 550,000,000 CUBIC FEET PER DAY.  INTOLERABLE
WASTE HAD RESULTED BY USE OF SWEET GAS UNDER PERMITS ISSUED BY THE
RAILROAD COMMISSION UNDER CHAPTER 100, ACTS 1933, FORTY-THIRD
LEGISLATURE, REGULAR SESSION, WHICH ALLOWED THE USE OF SWEET GAS FOR
INFERIOR PURPOSES WHERE THERE WAS NO FUEL AND LIGHT MARKET.  IT WAS
PRIMARILY TO PREVENT SUCH WASTE THAT THE LEGISLATURE PROHIBITED BY
HOUSE BILL 266 THE USE OF SWEET GAS IN THE MANUFACTURE OF CARBON
BLACK. 

THE COURT FOUND, AMONG OTHER THINGS: 

"THERE IS ENOUGH SOUR GAS IN RESERVE IN THE PANHANDLE FIELD TO
FULFILL THE WORLD'S REQUIREMENTS OF CARBON BLACK FOR MANY YEARS TO
COME.  THERE IS ALSO A TREMENDOUS SUPPLY OF CASINGHEAD GAS IN THE
PANHANDLE FIELD.  THERE IS NOW AVAILABLE FOR USE IN THE MANUFACTURE OF
CARBON BLACK SUFFICIENT ALLOTMENTS UNDER THE ORDERS OF THE RAILROAD
COMMISSION OF SOUR AND CASINGHEAD GAS TO SUPPLY ALL THE DEMANDS AND
NEEDS OF SUCH PLANTS WITH AN EXCESS OF 100,000,000 CUBIC FEET OF
CASINGHEAD GAS OVER AND ABOVE THE DEMAND OF THE CARBON BLACK PLANTS. 

"...  A PRODUCER OF SWEET GAS, IF HE IS ABLE TO MARKET THE SAME FOR
LIGHT AND FUEL PURPOSES, RECEIVES ABOUT THREE OR FOUR CENTS PER 1000
CUBIC FEET IN THE FIELD.  WHEN SUCH GAS IS DELIVERED AT THE BURNER TIPS
IT SELLS FOR VARIOUS GREATER AMOUNTS.  THE PRODUCERS OF GAS WHO SELL TO
THE COMPANIES WHO STRIP IT AND BURN IT FOR CARBON BLACK RECEIVE LESS
THAN A CENT PER 1000 CUBIC FEET." 

THE COMPANY CONTENDS THAT OUR DECISION IN WALLS V. MIDLAND CARBON
CO., 254 U.S. 300, WHICH UPHELD CERTAIN ACTION OF WYOMING IN
PROHIBITING AS WASTEFUL THE USE OF NATURAL GAS FOR THE PRODUCTION OF
CARBON BLACK, IS INAPPLICABLE TO THE ISSUES HERE PRESENTED.  THE
COMPANY CONCEDES THAT TEXAS MAY, FOR THE PURPOSE OF PREVENTING WASTE,
REGULATE BOTH THE PRODUCTION AND THE USE OF NATURAL GAS.  IT DOES NOT
DENY THAT WHEN ONE NATURAL RESOURCE IS FITTED FOR TWO USES AND ANOTHER
RESOURCE ONLY FOR ONE, THE LEGISLATURE HAS THE POWER TO MARSHAL THESE
RESOURCES BY CLASSIFYING THEM, AND DESIGNATING THE USES TO WHICH EACH
MAY BE PUT.  NOR DOES IT DENY THAT THE CLASSIFICATION AND THE
LIMITATION OF THE USE OF SWEET GAS MAY "WHEN CONSIDERING ALL OF THE GAS
FIELDS IN TEXAS AS A WHOLE, BEAR A REASONABLE RELATION TO THE PURPOSES
SOUGHT TO BE ACCOMPLISHED."  BUT IT INSISTS THAT AS APPLIED TO THE
PANHANDLE FIELD THE CLASSIFICATION AND PROHIBITION ARE VOID, BECAUSE,
THERE, THEY BEAR NO REASONABLE RELATION TO THE OBJECT SOUGHT TO BE
ATTAINED, AND ARE ARBITRARILY DISCRIMINATORY. 

FIRST.  THE CONTENTION THAT IN THE PANHANDLE FIELD THE PROHIBITION OF
THE USE OF SWEET GAS IN THE MANUFACTURE OF CARBON BLACK IS ARBITRARY
AND UNREASONABLE RESTS PRIMARILY UPON THE FACT THAT THE SOUR AND THE
SWEET GAS WELLS ARE IN THE SAME RESERVOIR.  THE ARGUMENT IS THAT
PRESSURES IN THE SOUR GAS AREA ARE LOWER THAN THOSE IN THE SWEET GAS
AREA; THAT, SINCE THERE IS NO FREE MARKET FOR SWEET GAS FOR FUEL AND
LIGHT, IT WILL, IF NOT USED IN CARBON BLACK MANUFACTURE, AND IF
WITHDRAWALS OF SOUR GAS ARE PERMITTED TO THE EXTENT OF THE REQUIREMENTS
OF THE CARBON BLACK INDUSTRY, MIGRATE INTO LOWER PRESSURE AREAS AND
BECOME A PART OF THE SOUR GAS SUPPLY; THAT, THEREFORE, THE SUPPLY OF
SWEET GAS WILL NOT BE CONSERVED; AND THAT THE EFFECT OF THE PROHIBITION
OF ITS USE IN THE MANUFACTURE OF CARBON BLACK WILL BE MERELY TO DEPRIVE
THE COMPANY, THROUGH THE MIGRATION, OF THE GAS TO WHICH IT IS
ENTITLED.  BUT THE LOWER COURT FOUND THAT THE LENGTH OF TIME REQUIRED
FOR SUCH MIGRATION IS NOT DEFINITELY KNOWN AND THAT THE DEMAND FOR
SWEET GAS FOR FUEL AND LIGHT IS INCREASING.  THE NEEDS OF CONSERVATION
ARE TO BE DETERMINED BY THE LEGISLATURE.  SEE WALLS V. MIDLAND CARBON
CO., 254 U.S. 300, 324.  THE LOSS OF SWEET GAS BY MIGRATION MAY BE
RELATIVELY NEGLIGIBLE.  THE COURT CONCLUDED THAT THERE IS "AN ABUNDANCE
OF FACTUAL SUPPORT FOR THE LEGISLATIVE PROHIBITION AGAINST THE BURNING
OF SWEET GAS FOR CARBON BLACK."  NO FACTS HAVE BEEN FOUND, OR
ESTABLISHED BY THE EVIDENCE, WHICH WOULD JUSTIFY US IN PRONOUNCING THE
ACTION OF THE LEGISLATURE ARBITRARY. 

SECOND.  THE COMPANY INSISTS, ALSO, THAT THE PRESCRIBED PROHIBITION
IS VOID, BECAUSE THE DIFFERENCE BETWEEN SWEET GAS AND SOUR IS SOLELY
THE PRESENCE IN THE LATTER OF A QUANTITY OF HYDROGEN SULPHIDE; THAT BY
PROCESSING THE SULPHIDE CAN BE ERADICATED FROM SOUR GAS AT A SLIGHT
EXPENSE; AND THAT THE SOUR GAS WHEN SO PURIFIED IS FIT FOR USE FOR FUEL
AND LIGHT.  THE DISTINCTION BETWEEN SWEET AND SOUR GAS FIXED BY THE
LEGISLATURE AT 1 1/2 GRAINS OF HYDROGEN SULPHIDE PER 100 CUBIC FEET, IS
FOUND BY THE COURT TO BE APT.  THE EVIDENCE AS TO THE COST OF PURIFYING
IS WIDELY CONFLICTING.  THE COST MIGHT DEPEND, AMONG OTHER THINGS, UPON
THE EXTENT OF THE SULPHUR CONTENT.  THE CLASSIFICATION MADE HAS AMPLE
SUPPORT IN THE EVIDENCE.  WE ARE UNABLE TO FIND IN THE REGULATION
ANYTHING ARBITRARY OR UNREASONABLE.  COMPARE LINDSLEY V. NATURAL
CARBONIC GAS CO., 220 U.S. 61, 78; WALLS V. MIDLAND CARBON CO., SUPRA,
324. 

THIRD.  THE COMPANY CONTENDS THAT THE PROVISIONS OF THE STATUTE AS
APPLIED DISCRIMINATE UNREASONABLY BETWEEN IT AND OTHER PRODUCERS
SIMILARLY SITUATED.  THE STATUTE APPLIES EQUALLY TO ALL SWEET GAS
WELLS.  THE DISCRIMINATION SUGGESTED IS IN FAVOR OF THE SOUR GAS WELL
OWNERS.  THE ARGUMENT IS THAT THE COMPANY HAS NOW NO FUEL AND LIGHT
MARKET FOR ITS SWEET GAS; THAT GAS MAY DRAIN INTO A SOUR WELL; AND, IF
IT DOES, WILL BECOME SOUR AND BE USABLE IN THE MANUFACTURE OF CARBON
BLACK.  IT IS NOT KNOWN WHEN THE EXPECTED DRAINAGE WILL OCCUR.  LONG
BEFORE THAT TIME THERE MAY BE A FUEL AND LIGHT MARKET FOR THE COMPANY'S
SWEET GAS.  IT IS ALSO URGED THAT THE STATUTE DISCRIMINATES ILLEGALLY
BY PROHIBITING THE USE OF SWEET GAS IN CARBON BLACK MANUFACTURE WHILE
PERMITTING ITS USE AS FUEL BY MANUFACTURERS OF OTHER ARTICLES.  THERE
ARE SEVERAL DIFFERENCES WHICH WOULD JUSTIFY THE CLASSIFICATION.  AMONG
THEM, THIS:  THE DAILY AVERAGE CONSUMPTION OF THE 29 CARBON BLACK
PLANTS IS ONLY SLIGHTLY LESS THAN THE AVERAGE DAILY AMOUNT TAKEN BY THE
PIPE LINES FOR FUEL AND LIGHT PURPOSES.  FOR THE CARBON BLACK PLANTS IN
THE PANHANDLE FIELD THE SOUR GAS THERE AFFORDS AN AMPLE SUPPLY.  FOR
THE FUEL USES SERVED BY THE INTERSTATE PIPE LINES SWEET GAS IS
PRACTICALLY INDISPENSABLE.  COMPARE OHIO OIL CO. V. INDIANA (NO. 1),
177 U.S. 190, 211; WALLS V. MIDLAND CARBON CO., SUPRA, 317, 322, 324. 

FOURTH.  THE COMPANY CLAIMS THAT THE STATUTE IMPAIRS THE OBLIGATION
OF CONTRACTS, SINCE IT PROHIBITS PERFORMANCE OF THE COMPANY'S CONTRACTS
WITH PRODUCERS TO TAKE SWEET GAS FOR ITS STRIPPING PLANT AND ITS
CONTRACT TO DELIVER THE RESIDUE AFTER STRIPPING TO THE COMBINED CARBON
COMPANY.  THE CONTENTION IS THAT THE CONTRACT CLAUSE OF THE TEXAS
CONSTITUTION, UNLIKE THAT OF THE FEDERAL CONSTITUTION, PREVENTS THE
STATE FROM ENACTING A POLICE MEASURE WHICH WILL RESULT IN IMPAIRING A
CONTRACT.  IN SUPPORT OF THAT PROPOSITION, THE COMPANY CITES TRAVELERS'
INS. CO. V. MARSHALL, 124 TEX. 45; 76 S.W.(2D) 1007, DECIDED BY THE
SUPREME COURT OF TEXAS IN 1934.  BUT THAT CASE DOES NOT SUPPORT THE
PROPOSITION.  THE STATUTE THERE HELD VOID WAS A MORATORIUM STATUTE
SPECIFICALLY DIRECTED AGAINST THE TERMS OF CONTRACTS.  THE STATUTE HERE
CHALLENGED IS NOT DIRECTED AGAINST ANY TERM OF ANY CONTRACT.  IT DEALS
MERELY WITH THE USE OF AN ARTICLE OF COMMERCE; AND ITS EFFECT UPON
CONTRACTS IS INCIDENTAL.  THE DISTINCTION WAS POINTED OUT BY THE
DISTRICT COURT, WHICH SAID THAT THE CONSTITUTION OF THE STATE OF TEXAS
"HAS NEVER BEEN HELD TO AVOID A POLICE STATUTE DEALING DIRECTLY WITH
PHYSICAL THINGS IN THE INTEREST OF THE PUBLIC WELFARE, AND TOUCHING
CONTRACTUAL RELATIONSHIPS ONLY INCIDENTALLY AS THEY MAY HAVE ATTACHED
TO THOSE PHYSICAL THINGS PRIOR TO THE PASSAGE OF THE STATUTE."  14
F.SUPP.  328, 334.  THAT RULING ACCORDS WITH CONSTITUTIONAL DOCTRINE
LONG ESTABLISHED IN THIS AND OTHER COURTS.  IF WE FELT ANY DOUBT AS TO
ITS APPLICATION HERE, IN THE ABSENCE OF A DEFINITIVE CONSTRUCTION OF
THE CONSTITUTION OF THE STATE BY ITS HIGHEST COURT, WE SHOULD DEFER TO
THE FEDERAL COURT'S UNDERSTANDING OF THE STATE LAW.  SEE THOMPSON V.
CONSOLIDATED GAS UTILITIES CORP., SUPRA. 

FIFTH.  THE CONTENTION THAT OUR DECISION IN THE WALLS CASE IS
INAPPLICABLE IS RESTED IN PART ON THE DIFFERENCE, AS TO THE TITLE TO
GAS IN PLACE, BETWEEN THE LAW OF WYOMING AND THAT OF TEXAS.  IT IS
URGED THAT, IN THE ABSENCE OF WASTE, THE LEGISLATURE LACKS POWER TO
REGULATE PRODUCTION IN TEXAS, SINCE THERE THE LAW GIVES THE OWNER OF
LAND TITLE TO THE GAS IN PLACE AND TO THAT WHICH MIGRATES TO FORMATIONS
UNDER HIS LAND; WHEREAS IN WYOMING REGULATION FOR THE PURPOSE OF
PROTECTING CORRELATIVE RIGHTS OF OTHER OWNERS IN A COMMON POOL IS
PERMISSIBLE.  UPON THIS ARGUMENT WE NEED NOT PASS.  ONE PRINCIPLE
ESTABLISHED BY THE WALLS CASE IS THAT THE LEGISLATURE MAY, FOR THE
PURPOSE OF CONSERVING NATURAL RESOURCES, REGULATE THEIR PRODUCTION AND
USE.  THE FINDINGS OF THE DISTRICT COURT IN THIS CASE SUPPORT THE
REASONABLENESS OF THE PRESENT STATUTE ON THAT BASIS.  IT IS ALSO URGED
THAT THERE IS THIS VITAL DIFFERENCE IN THE FACTS: THAT IN THE PANHANDLE
FIELD THE CHALLENGED PROHIBITION WILL NOT PREVENT WASTE, OR CONSERVE
THE SUPPLY OF SWEET GAS, SINCE THE SWEET GAS, IF NOT USED, WILL DRAIN
INTO THE SOUR GAS AREA, BECAUSE OF THE LOWER PRESSURES THERE. 
MOREOVER, IT IS INSISTED THAT, UNLIKE THE WALLS CASE, THERE IS HERE IN
THE RECORD CONVINCING EVIDENCE THAT THE USE OF SWEET GAS IN THE
MANUFACTURE OF CARBON BLACK IS NOT WASTEFUL.  OUR DECISION IN THAT CASE
RESTED UPON NO PARTICULAR THEORY OF THE NATURE OF THE CARBON BLACK
INDUSTRY.  IT WAS BASED SIMPLY UPON THE DETERMINATION THAT THE STATUTE
IN QUESTION WAS NOT SHOWN TO HAVE BEEN AN ARBITRARY EXERCISE OF
LEGISLATIVE POWER.  SUCH, LIKEWISE, IS OUR JUDGMENT HERE.  AFFIRMED. 

FN1  "SEC.  2. 

"(G)  THE TERM 'SOUR GAS' SHALL MEAN ANY NATURAL GAS CONTAINING MORE
THAN ONE AND ONE-HALF (1 1/2) GRAINS OF HYDROGEN SULPHIDE PER ONE
HUNDRED (100) CUBIC FEET OR MORE THAN THIRTY (30) GRAINS OF TOTAL
SULPHUR PER ONE HUNDRED (100) CUBIC FEET, OR GAS WHICH IN ITS NATURAL
STATE IS FOUND BY THE COMMISSION TO BE UNFIT FOR USE IN GENERATING
LIGHT OR FUEL FOR DOMESTIC PURPOSES. 

"(H)  THE TERM 'SWEET GAS' SHALL MEAN ALL NATURAL GAS EXCEPT 'SOUR
GAS' AND 'CASINGHEAD GAS.'" 

FN2  "SEC.  3.  THE PRODUCTION, TRANSPORTATION, OR USE OF NATURAL GAS
IN SUCH MANNER, IN SUCH AMOUNT, OR UNDER SUCH CONDITIONS AS TO
CONSTITUTE WASTE IS HEREBY DECLARED TO BE UNLAWFUL AND IS PROHIBITED. 
THE TERM 'WASTE' AMONG OTHER THINGS SHALL SPECIFICALLY INCLUDE:... 

"(J)  THE USE OF SWEET GAS PRODUCED FROM A GAS WELL FOR THE
MANUFACTURE OF CARBON BLACK...." 

FN3  "SEC.  7.  AFTER THE EXPIRATION OF TEN (10) DAYS FROM THE TIME OF
ENCOUNTERING GAS IN A GAS WELL, NO GAS FROM SUCH WELL SHALL BE
PERMITTED TO ESCAPE INTO THE AIR, AND ALL GAS PRODUCED THEREFROM SHALL
BE UTILIZED FOR THE FOLLOWING PURPOSES: 

"(1)  NO SWEET GAS SHALL BE UTILIZED EXCEPT FOR: 

"(A)  LIGHT OR FUEL. 

"(B)  EFFICIENT CHEMICAL MANUFACTURING, OTHER THAN THE MANUFACTURE OF
CARBON BLACK. 

"(C)  BONA FIDE INTRODUCTION OF GAS INTO OIL, OR GAS BEARING HORIZON,
IN ORDER TO MAINTAIN OR INCREASE THE ROCK PRESSURE OR OTHERWISE
INCREASE THE ULTIMATE RECOVERY OF OIL OR GAS FROM SUCH HORIZON. 

"(D)  THE EXTRACTION OF NATURAL GASOLINE THEREFROM WHEN THE RESIDUE
IS RETURNED TO THE HORIZON FROM WHICH IT IS PRODUCED." 
..END :











FOUNDERS GENERAL CO. V. HOEY, 300 U.S. 268 


NO. 398.  ARGUED JANUARY 8, 11, 1937.  - DECIDED MARCH 1, 1937.  - 84
F.(2D) 976, AFFIRMED.  - 84 F.(2D) 908, REVERSED.  - 83 CT. CLS. 593 -
15 F.SUPP.  70, REVERSED. 


1.  WHERE THE CERTIFICATES FOR CORPORATE SHARES SUBSCRIBED FOR BY A
ARE, BY HIS DIRECTION AND FOR HIS OWN CONVENIENCE, ISSUED TO B, HIS
NOMINEE AND AGENT FOR THIS PURPOSE, THERE IS A TRANSFER FROM A TO B OF
THE "RIGHT TO RECEIVE" THE CERTIFICATES WHICH IS TAXABLE UNDER SEC.
800, SCHEDULE A-3 OF THE REVENUE ACT OF 1926, ALTHOUGH THE ARRANGEMENTS
BETWEEN A AND B WERE SUCH THAT, AS AGAINST A, B COULD NOT HAVE
COMPELLED ISSUANCE OF THE CERTIFICATES TO HIMSELF AND ACQUIRES NO
BENEFICIAL INTEREST IN THE SECURITIES AND HAS NO PART IN THE MANAGEMENT
OR DISPOSAL OF THEM.  P. 273. 

2.  A NEW CORPORATION TOOK OVER THE ASSETS OF AN OLD ONE AND AGREED
TO ISSUE ITS SHARES TO THE OLD STOCKHOLDERS, BUT IN PURSUANCE OF AN
IRREVOCABLE AGREEMENT AND POWER OF ATTORNEY PREVIOUSLY EXECUTED BY THE
STOCKHOLDERS, PORTIONS OF THEIR NEW ALLOTMENTS, PRO RATA, WERE ISSUED
DIRECTLY TO THEIR ATTORNEY FOR PURPOSES OF SALE.  HELD THAT THERE WAS A
TAXABLE TRANSFER, FROM STOCKHOLDERS TO ATTORNEY, OF THE "RIGHT TO
RECEIVE" SHARES, UNDER SEC. 800, SCHEDULE A-3 OF THE REVENUE ACT OF
1926.  RAYBESTOS-MANHATTAN, INC. V. UNITED STATES, 296 U.S. 60.  P.
274. 

3.  A TAXPAYER WHOSE TRANSACTION IS WITHIN A TAXING STATUTE CANNOT BE
RELIEVED UPON THE GROUND THAT BY ADOPTING ANOTHER FORM OF DEALING HE
COULD HAVE ACHIEVED HIS ULTIMATE PURPOSE AND AVOIDED THE STATUTE.  P.
275. 

FOUNDERS GENERAL CORP. V. HOEY, COLLECTOR OF INTERNAL REVENUE.* 

*TOGETHER WITH NO. 331, UNITED STATES V. A.B. LEACH & CO., CERTIORARI
TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT; AND NO. 330,
UNITED STATES V. AUTOMATIC WASHER CO., CERTIORARI TO THE COURT OF
CLAIMS. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 299 U.S. 534, 531, TO REVIEW JUDGMENTS IN SUITS FOR THE
RECOVERY OF MONEYS ALLEGED TO HAVE BEEN WRONGFULLY EXACTED AS TAXES ON
STOCK TRANSFERS, AND AS INTEREST AND PENALTIES.  IN NO. 398, THE
JUDGMENT OF THE DISTRICT COURT (12 F.SUPP.  290) DISMISSING THE
COMPLAINT WAS AFFIRMED BY THE COURT BELOW.  IN NO. 331 A RECOVERY IN
THE DISTRICT COURT WAS AFFIRMED BY THE COURT BELOW.  IN NO. 330 THERE
WAS A JUDGMENT FOR THE TAXPAYER IN THE COURT OF CLAIMS. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THESE THREE CASES PRESENT, IN THE MAIN, THE SAME QUESTION:  WHEN, AT
THE INSTANCE OF ONE ENTITLED TO RECEIVE STOCK, THE CERTIFICATES
THEREFOR ARE, AT HIS REQUEST AND FOR HIS CONVENIENCE, ISSUED BY THE
CORPORATION IN THE NAME OF A NOMINEE WHO RECEIVES NO BENEFICIAL
INTEREST THEREIN, DOES THE TRANSACTION INVOLVE A TRANSFER BY THE
BENEFICIAL OWNER REQUIRING A DOCUMENTARY STAMP PURSUANT TO SEC. 800,
SCHEDULE A-3, OF THE REVENUE ACT OF 1926, FEBRUARY 26, 1926, C. 27,
TITLE VIII, 44 STAT. 99, 101? 

THE TAXPAYERS SEEK TO RECOVER THE AMOUNTS ALLEGED TO HAVE BEEN
WRONGFULLY EXACTED FOR THE TAX, WITH INTEREST AND PENALTIES.  IN NO.
398, THE CLAIM OF FOUNDERS GENERAL CORPORATION FOR $4,733.33, WAS
DENIED BY THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT, 12
F.SUPP.  290; 84 F.(2D) 976.  IN NO. 331, THE CLAIM OF A.B. LEACH &
CO., INC., FOR $16,526.40 WAS ALLOWED BY THE CIRCUIT COURT OF APPEALS
FOR THE SEVENTH CIRCUIT.  84 F.(2D) 908.  IN NO. 330, THE CLAIM OF
AUTOMATIC WASHER COMPANY FOR $1,593.63 WAS ALLOWED BY THE COURT OF
CLAIMS, 83 CT. CLS. 593; 15 F.SUPP.  70.  BECAUSE OF THE CONFLICT, WE
GRANTED CERTIORARI. 

1.  IN THE SUIT BROUGHT BY THE FOUNDERS CORPORATION, THE COMPLAINT,
SETTING FORTH THE FOLLOWING FACTS, WAS DISMISSED:  ON SEPTEMBER 10,
1929, THAT CORPORATION AGREED WITH THE UNITED STATES ELECTRIC POWER
CORPORATION TO SUBSCRIBE FOR 100,000 SHARES OF ITS COMMON STOCK, TO BE
DELIVERED ON SEPTEMBER 17TH, EACH SHARE TO BE ACCOMPANIED BY A WARRANT
ENTITLING THE HOLDER TO SUBSCRIBE BEFORE JANUARY 2, 1940 FOR AN
ADDITIONAL SHARE.  AFTER MAKING THE AGREEMENT AND BEFORE DELIVERY OF
THE SHARES, THE FOUNDERS CORPORATION DIRECTED THAT THE SECURITIES BE
ISSUED IN THE NAME OF BENTON & CO., AS ITS NOMINEE.  BENTON & CO. WAS A
PARTNERSHIP, ORGANIZED IN 1928 SOLELY TO HOLD IN ITS NAME SECURITIES
BELONGING TO THE PLAINTIFF, AND TO TRANSFER THEM AT PLAINTIFF'S
REQUEST.  FOR ACTING AS NOMINEE, THE PARTNERSHIP RECEIVED FROM
PLAINTIFF AN ANNUAL FEE OF $1500.  BY CONTRACT BETWEEN BENTON & CO. AND
PLAINTIFF, NEITHER THE PARTNERSHIP NOR ANY MEMBER THEREOF COULD CLAIM
ANY BENEFICIAL INTEREST IN ANY SECURITIES HELD BY THE FIRM, AND
PLAINTIFF WAS APPOINTED AGENT OF BENTON & CO. FOR THE SALE AND TRANSFER
OF SECURITIES REGISTERED IN THE PARTNERSHIP NAME.  THE STOCK ISSUED BY
THE ELECTRIC POWER CORPORATION IN THE NAME OF BENTON & CO. WAS
DELIVERED TO THE FOUNDERS CORPORATION. 

STAMP TAXES WERE CONFESSEDLY PAYABLE ON THE ORIGINAL ISSUE, AND ON
THE TRANSFER OF ANY SECURITIES FROM BENTON & CO. TO THE PUBLIC.  THE
ONLY TAX CHALLENGED IS THAT UPON THE ALLEGED TRANSFER BY PLAINTIFF TO
BENTON & CO. OF THE RIGHT TO RECEIVE THE STOCK OF THE ELECTRIC POWER
CORPORATION. 

2.  IN THE SUIT BROUGHT BY A.B. LEACH & CO., INC., THE DECLARATION
UPON DEMURRER TO WHICH THE RECOVERY WAS HAD, SET FORTH THE FOLLOWING
FACTS:  THAT CONCERN, BEING ENGAGED IN THE BUSINESS OF SELLING
SECURITIES TO THE PUBLIC, ORGANIZED FIVE CORPORATIONS; SUBSCRIBED FOR
ALL THEIR STOCK; AND DIRECTED THAT THE STOCK BE ISSUED IN THE NAME OF
VERCOUTER, AN EMPLOYEE.  IT IS CONCEDED THAT HE HAD NO BENEFICIAL
INTEREST IN THE STOCK; HAD NO AUTHORITY TO ACT EXCEPT AS DIRECTED BY
A.B. LEACH & CO., INC.; AND RECEIVED THE CERTIFICATES SOLELY FOR ITS
BENEFIT AND CONVENIENCE IN CONNECTION WITH FUTURE SALES TO THE PUBLIC. 

STAMP TAXES WERE CONFESSEDLY PAYABLE ON THE ORIGINAL ISSUE, BY THE
FIVE CORPORATIONS.  THE ONLY TAX CHALLENGED IS THAT UPON THE ALLEGED
TRANSFER BY THE TAXPAYER TO VERCOUTER OF THE RIGHT TO RECEIVE THE STOCK
OF THE FIVE CORPORATIONS. 

3.  IN THE SUIT BROUGHT BY AUTOMATIC WASHER COMPANY, THE FACTS FOUND
ON WHICH RECOVERY WAS ALLOWED ARE THESE:  AN AGREEMENT, DATED JUNE 22,
1928, BETWEEN FOLDS, BUCK & COMPANY, BANKERS, AND NELSON, A STOCKHOLDER
AND OFFICER OF THE WASHER COMPANY'S CORPORATE PREDECESSOR, PROVIDED
THAT NELSON PROPOSED TO CAUSE THE LATTER CONCERN TO BE REORGANIZED AS A
DELAWARE CORPORATION WHICH SHOULD ACQUIRE THE ASSETS AND ASSUME THE
LIABILITIES OF THE OLD COMPANY; THAT THE NEW COMPANY SHOULD ISSUE
THEREFOR 140,000 SHARES OF COMMON AND 40,000 SHARES OF PREFERRED; AND
THAT THE BANKERS SHOULD HAVE THE OPTION OF ACQUIRING FOR $1,000,000
40,000 SHARES OF THE COMMON AND 40,000 SHARES OF THE PREFERRED.  ON
SEPTEMBER 17, 1928, THE STOCKHOLDERS OF THE OLD COMPANY AGREED WITH
NELSON TO CONTRIBUTE RATABLY THE SHARES IN THE NEW WHICH WERE TO BE
SOLD TO THE BANKERS.  TO THIS END, EACH IRREVOCABLY APPOINTED NELSON
AND ONE GALLAGHER ATTORNEYS IN FACT TO RECEIVE THE STOCK OF THE NEW
COMPANY AND TO MAKE SALE THEREOF TO THE BANKERS.  THE NEW COMPANY, THE
TAXPAYER, WAS ORGANIZED.  ON SEPTEMBER 27, 1928, THE TWO COMPANIES
AGREED THAT THE ASSETS SHOULD BE TRANSFERRED TO THE NEW IN
CONSIDERATION OF ITS ISSUING ITS COMMON AND PREFERRED STOCK TO THE
STOCKHOLDERS OF THE OLD.  THE AGREEMENT RECITED THE ARRANGEMENT WITH
THE BANKERS AND THAT: 

"IN ORDER TO CARRY OUT THIS PLAN  ...  EACH OF THE STOCKHOLDERS OF
THE OLD COMPANY HAS IRREVOCABLY CONSTITUTED AND APPOINTED H. E. NELSON
AND W. N. GALLAGHER HIS ATTORNEYS IN FACT TO RECEIVE THE RESPECTIVE
SECURITIES OF THE NEW COMPANY TO WHICH SUCH STOCKHOLDER MAY BE ENTITLED
AND TO MAKE SALE OF THAT PORTION THEREOF TO BE CONTRIBUTED BY SUCH
STOCKHOLDER FOR THE PURPOSE OF CARRYING OUT SAID AGREEMENT OF SALE WITH
THE BANKERS....  ACCORDINGLY, THE NEW COMPANY  ...  SHALL ISSUE SUCH
CERTIFICATES IN SUCH NAMES AND FOR SUCH AMOUNTS AS SHALL BE SPECIFIED
IN THE JOINT ORDER OF THE SAID H. E. NELSON AND W. N. GALLAGHER, THE
ATTORNEYS IN FACT  ...  AND DELIVER THE SAME TO SAID ATTORNEYS IN FACT
..." 

THE 74,538 SHARES DESIGNED TO BE SOLD TO THE BANKERS WERE ISSUED TO
NELSON.  FN1  OF THESE, 13,173 WERE THE PRO RATA CONTRIBUTION OF
NELSON. 

THE TAXPAYER CONCEDES NOW THAT STAMP TAXES WERE PAYABLE ON THE
ORIGINAL ISSUE OF ALL THE STOCK BY THE NEW COMPANY; ON THE OLD
COMPANY'S TRANSFER TO ITS STOCKHOLDERS (INCLUDING NELSON) OF ITS RIGHT
TO RECEIVE THE NEW COMPANY'S STOCK; ON NELSON'S TRANSFER TO THE
BANKERS; AND ON THE BANKERS' SALES TO THE PUBLIC.  THE GOVERNMENT
CONCEDES NOW THAT TAXES ARE NOT PAYABLE ON NELSON'S ALLEGED TRANSFER TO
HIMSELF OF HIS 13,173 SHARES WHICH WERE TO GO TO THE BANKER.  THE TAX
CHALLENGED IS THAT ON THE ALLEGED TRANSFER TO NELSON OF THE RIGHT TO
RECEIVE THE 61,365 SHARES WHICH THE OTHER STOCKHOLDERS CONTRIBUTED. 

THE APPLICABLE PART OF SEC. 800, SCHEDULE A - STAMP TAXES, IS AS
FOLLOWS: 

"3.  CAPITAL STOCK, SALES OR TRANSFERS:  ON ALL SALES, OR AGREEMENTS
TO SELL, OR MEMORANDA OF SALES OR DELIVERIES OF, OR TRANSFERS OF LEGAL
TITLE TO SHARES OR CERTIFICATES OF STOCK OR OF PROFITS OR OF INTEREST
IN PROPERTY OR ACCUMULATIONS IN ANY CORPORATION, OR TO RIGHTS TO
SUBSCRIBE FOR OR TO RECEIVE SUCH SHARES OR CERTIFICATES, WHETHER MADE
UPON OR SHOWN BY THE BOOKS OF THE CORPORATION, OR BY ANY ASSIGNMENT IN
BLANK, OR BY ANY DELIVERY, OR BY ANY PAPER OR AGREEMENT OR MEMORANDUM
OR OTHER EVIDENCE OF TRANSFER OR SALE, WHETHER ENTITLING THE HOLDER IN
ANY MANNER TO THE BENEFIT OF SUCH STOCK, INTEREST, OR RIGHTS, OR NOT,
ON EACH $100 OF FACE VALUE OR FRACTION THEREOF, 2 CENTS, AND WHERE SUCH
SHARES ARE WITHOUT PAR OR FACE VALUE, THE TAX SHALL BE 2 CENTS ON THE
TRANSFER OR SALE OR AGREEMENT TO SELL ON EACH SHARE:  PROVIDED, THAT IT
IS NOT INTENDED BY THIS TITLE TO IMPOSE A TAX UPON AN AGREEMENT
EVIDENCING A DEPOSIT OF CERTIFICATES AS COLLATERAL SECURITY FOR MONEY
LOANED THEREON, WHICH CERTIFICATES ARE NOT ACTUALLY SOLD, NOR UPON THE
DELIVERY OR TRANSFER FOR SUCH PURPOSE OF CERTIFICATES SO DEPOSITED, NOR
UPON MERE LOANS OF STOCK NOR UPON THE RETURN OF STOCK SO LOANED:
PROVIDED FURTHER, THAT THE TAX SHALL NOT BE IMPOSED UPON DELIVERIES OR
TRANSFERS TO A BROKER FOR SALE, NOR UPON DELIVERIES OR TRANSFERS BY A
BROKER TO A CUSTOMER FOR WHOM AND UPON WHOSE ORDER HE HAS PURCHASED
SAME, BUT SUCH DELIVERIES OR TRANSFERS SHALL BE ACCOMPANIED BY A
CERTIFICATE SETTING FORTH THE FACTS  ..." 

FIRST.  IN EACH CASE, THE PERSON ORIGINALLY ENTITLED TO RECEIVE THE
CERTIFICATE DIRECTED, FOR HIS OWN CONVENIENCE AND PURPOSES, THAT IT BE
ISSUED IN THE NAME OF A NOMINEE.  IT IS ARGUED IN THE AUTOMATIC WASHER
COMPANY CASE, THAT THE STOCKHOLDERS OF THE OLD COMPANY NEVER ACQUIRED
THE "RIGHT TO RECEIVE" THAT PORTION OF THEIR STOCK WHICH WAS DESIGNED
FOR TRANSFER TO THE BANKERS; THAT THEY DID NOT BECOME ENTITLED TO
RECEIVE SHARES IN THE NEW COMPANY UNTIL THE CONTRACT WITH IT WAS MADE
ON SEPTEMBER 27TH; THAT PRIOR THERETO, THEY HAD IRREVOCABLY AGREED THAT
NELSON SHOULD RECEIVE AND SELL THE SHARES WHICH WERE TO GO TO THE
BANKERS; AND THAT, THUS, THE STOCKHOLDERS OF THE OLD COMPANY HAD, PRIOR
TO THE ORIGINAL ISSUE OF THE STOCK IN THE NEW, RELINQUISHED "THE POWER
TO COMMAND THE DISPOSITION OF THE SHARES" AND, THEREFORE, NEVER
EXERCISED THAT POWER, HELD TAXABLE IN RAYBESTOS-MANHATTAN, INC. V.
UNITED STATES, 296 U.S. 60.  BUT ESSENTIALLY THE SAME ARGUMENT WAS MADE
AND REJECTED IN THE RAYBESTOS CASE, PAGE 62.  THERE THE TRANSACTION WAS
HELD TO HAVE INVOLVED A TAXABLE TRANSFER OF RIGHTS TO STOCK, THOUGH THE
OLD COMPANIES HAD NO RIGHT TO THE STOCK IN THE CONSOLIDATED COMPANY
PRIOR TO THE EXECUTION OF THE CONTRACT WHEREBY THE ISSUE TO THEIR
STOCKHOLDERS WAS DIRECTED.  "THE REACH OF A TAXING ACT WHOSE PURPOSE IS
AS OBVIOUS AS THE PRESENT IS NOT TO BE RESTRICTED BY TECHNICAL
REFINEMENTS."  ID., 63.  COMPARE HELVERING V. MIDLAND MUTUAL LIFE
INSURANCE CO., ANTE, P. 216.  THE SITUATION HERE IS IN SUBSTANCE THE
SAME AS IN THE RAYBESTOS CASE.  WHEN THE POWERS OF ATTORNEY WERE
EXECUTED, THERE WAS NOTHING UPON WHICH THEY COULD OPERATE.  THE RIGHTS
TO RECEIVE THE STOCK IN THE NEW COMPANY, AND THE TRANSFER THEREOF, WERE
EFFECTED AT ONE TIME BY THE SAME DOCUMENT. 

SECOND.  IT IS TRUE THAT IN NONE OF THE THREE CASES DID THE
TRANSACTION INVOLVE THE TRANSFER OF A BENEFICIAL INTEREST.  BUT THAT
FACT IS, IN VIEW OF THE LANGUAGE OF THE ACT, WITHOUT LEGAL
SIGNIFICANCE.  THE TAX IS EXACTED BECAUSE THE TAXPAYER TRANSFERRED "THE
RIGHT TO RECEIVE" THE CERTIFICATE.  LIKEWISE IT IS WITHOUT LEGAL
SIGNIFICANCE THAT, UNDER POWER OF ATTORNEY FROM NOMINEE TO BENEFICIAL
OWNER, THE FORMER MAY HAVE NO PART IN THE MANAGEMENT OR DISPOSAL OF THE
SECURITIES.  NOR IS IT MATERIAL THAT IN NO CASE DID THE NOMINEE HAVE A
RIGHT, AT LEAST AS AGAINST THE TAXPAYER, TO COMPEL ISSUANCE OF THE
STOCK TO HIMSELF.  THE LEGAL TITLE TO THE SHARES WAS RECEIVED BY THE
NOMINEE FROM THE NEWLY FORMED CORPORATION; BUT THE AUTHORIZATION
RENDERING HIS HOLDING LAWFUL WAS RECEIVED FROM THE TAXPAYER.  THE
LEGALITY OF THE ISSUANCE OF THE STOCK IN THE NAMES OF THE NOMINEES
RESTS ON THE FACT THAT THE TAXPAYERS AUTHORIZED SUCH ISSUANCE AND
GRANTED THEIR NOMINEES THE RIGHT TO RECEIVE THE STOCKS ENTERED IN THEIR
NAMES.  THE GRANT OF THAT AUTHORITY IS A TRANSFER OF "THE RIGHT TO
RECEIVE" WITHIN THE MEANING OF THE ACT; AND WE ARE NOT TO LOOK BEYOND
THE ACT FOR FURTHER CRITERIA OF TAXABILITY.  SEE BURNET V. HARMEL, 287
U.S. 103, 110. 

THE STATUTE DEFINES THE SCOPE OF THE TAX IN TERMS WHOSE BREADTH IS
EMPHASIZED BY THE CAREFUL PARTICULARITY OF ITS PROVISOS.  ESPECIALLY
INDICATIVE OF CONGRESSIONAL INTENTION THAT NOMINEE TRANSACTIONS
GENERALLY SHOULD BE SUBJECT TO THE TAX ARE THE PROVISOS ADDED BY THE
REVENUE ACT OF 1932, JUNE 6, 1932, C. 209, SEC. 723, 47 STAT. 273, AND
THE ACT OF JUNE 29, 1936, C. 865, 49 STAT. 2029, WHICH EXCEPT CERTAIN
SPECIFICALLY DESCRIBED TRANSFERS TO NOMINEES. 

THIRD.  IT IS SUGGESTED THAT IN EACH CASE THE TAXPAYER MIGHT HAVE
ATTAINED HIS ULTIMATE PURPOSE BY A FORM OF TRANSACTION WHICH WOULD NOT
HAVE SUBJECTED HIM TO THE TAX.  THE SUGGESTION, IF TRUE, FURNISHES NO
REASON FOR RELIEVING HIM OF TAX WHEN, FOR WHATEVER REASON, HE CHOOSES A
MODE OF DEALING WITHIN THE TERMS OF THE ACT.  COMPARE UNITED STATES V.
ISHAM, 17 WALL.  496, 506; PROVOST V. UNITED STATES, 269 U.S. 443, 457,
458.  TO MAKE THE TAXABILITY OF THE TRANSACTION DEPEND UPON THE
DETERMINATION WHETHER THERE EXISTED AN ALTERNATIVE FORM WHICH THE
STATUTE DID NOT TAX WOULD CREATE BURDEN AND UNCERTAINTY.  "THERE MUST
BE A FIXED AND INDISPUTABLE MODE OF ASCERTAINING A STAMP TAX."  HATCH
V. REARDON, 204 U.S. 152, 159.  IN NUMBER 398, JUDGMENT AFFIRMED.  IN
NUMBER 331, JUDGMENT REVERSED.  IN NUMBER 330, JUDGMENT REVERSED. 
FN1  IN THE EVENTUAL DETERMINATION OF THE PRO RATA CONTRIBUTION BY THE
OLD COMPANY'S STOCKHOLDERS TO THE STOCK TO BE SOLD TO THE BANKERS, THE
AMOUNT OF PREFERRED TO BE SOLD WAS REDUCED TO 34,538 SHARES.  SEE 15
F.SUPP.  70, 74. 
..END :
















POWELL V. UNITED STATES, 300 U.S. 276 


NO. 295.  ARGUED JANUARY 12, 1937.  - DECIDED MARCH 1, 1937.  - 12
F.SUPP.  938, REVERSED. 


1.  AN ORDER OF THE INTERSTATE COMMERCE COMMISSION, IN PROCEEDINGS
BEGUN ON THE COMPLAINT OF A CARRIER, DIRECTED THAT THERE BE STRICKEN
FROM THE COMMISSION'S FILES A TARIFF FILED BY ANOTHER CARRIER
PURPORTING TO EXTEND THE SWITCHING LIMITS OF THE LATTER TO INCLUDE
RECEIVING AND DELIVERY TRACKS BELONGING TO THE UNITED STATES AT A
MILITARY POST, AND TO OBLIGE THAT CARRIER TO FURNISH TRANSPORTATION TO
AND FROM THE POST UNDER OTHER TARIFFS APPLICABLE OVER ITS OWN LINES TO
AND FROM A JUNCTION.  HELD THAT, IN PURPOSE AND EFFECT THE ORDER WAS
AFFIRMATIVE, AND THAT A SUIT TO ANNUL IT, BROUGHT BY THE CARRIER WHOSE
TARIFF WAS THUS REJECTED, WAS WITHIN THE JURISDICTION OF THE DISTRICT
COURT OF THREE JUDGES UNDER 28 U.S.C. 47.  P. 284. 

2.  WITH THE CONSENT OF THE SECRETARY OF WAR, THE LESSEES OF A
RAILROAD OWNED BY THE UNITED STATES IN A MILITARY RESERVATION WERE
EMPLOYED BY A CONNECTING TRUNK-LINE CARRIER AS ITS AGENTS TO TRANSPORT
OVER THE LEASED TRACKS TO AND FROM THE MILITARY POST FREIGHT COMING
FROM OR DESTINED FOR THE TRUNK LINE; AND THE TRUNK LINE WAS GIVEN
PERMISSION TO PERFORM THE TRANSPORTATION WITH ITS OWN ENGINES AND
CREWS, THE LESSEES RESERVING THE RIGHT TO RENDER LIKE SERVICES TO OTHER
CARRIERS WHEN REQUIRED BY THE SECRETARY.  HELD: 

(1)  THAT, IN RESPECT OF THE TRAFFIC COVERED BY THE TRUNK LINE'S
TARIFF, THE LESSEES, AS ITS AGENTS, WERE COMMON CARRIERS, AND THEY AND
THE SERVICE PERFORMED BY THEM WERE SUBJECT TO THE JURISDICTION OF THE
INTERSTATE COMMERCE COMMISSION.  P. 285. 

(2)  THAT WHETHER THE LEASED TRACKS WERE, WITHIN THE MEANING OF SEC.
1(18) OF THE INTERSTATE COMMERCE ACT, AN EXTENSION OR ADDITION, OR,
WITHIN THE MEANING OF SEC. 1(22), SPUR, INDUSTRIAL, TEAM, SWITCHING OR
SIDE TRACKS, THE TRANSPORTATION OVER THEM BY OR FOR THE TRUNK LINE MUST
BE COVERED BY A TARIFF FILED IN ACCORDANCE WITH SEC. 6(7) OF THE ACT. 
P. 286. 

(3)  THE ACTION OF THE SECRETARY OF WAR WAS NOT INCONSISTENT WITH
PROPER EXERTION OF THE COMMISSION'S AUTHORITY UNDER SECS. 1(18) AND
1(20).  P. 286. 

(4)  THE LEASED TRACKS COVERED BY THE TARIFF WERE PART OF, AND
EXTENDED TO OR INCLUDED A STATION ON, THE LINE OF THE RAILROAD COMPANY
WITHIN THE MEANING OF SEC. 6.  P. 286. 

3.  THE PURPOSE OF SECS. 1(18) TO 1(22) OF THE ACT WAS TO EMPOWER THE
COMMISSION IN PROCEEDINGS INSTITUTED BY A CARRIER PROPOSING TO ENGAGE
IN TRANSPORTATION OVER OR BY MEANS OF AN ADDITIONAL OR EXTENDED LINE
AUTHORITATIVELY TO DECIDE WHETHER IT WOULD BE IN THE PUBLIC INTEREST. 
P. 286. 

4.  UPON PRESENTATION BY THE CARRIER OF APPLICATION FOR A
CERTIFICATE, THE COMMISSION, FOR THE PURPOSE OF DETERMINING WHETHER IT
IS AUTHORIZED BY THE ACT TO CONSIDER THE MERITS, MAY PASS INCIDENTALLY
UPON THE QUESTION WHETHER THE PROJECT IS ONE COVERED BY SEC. 1(18). 
BUT THE DECISION OF THAT QUESTION IS FOR THE COURT IN A SUIT TO SET
ASIDE AN ORDER GRANTING A CERTIFICATE OR IN A SUIT UNDER SEC. 1(20) TO
ENJOIN A VIOLATION OF SEC. 1(18).  P. 287. 

5. AN INTERESTED CARRIER IS NOT AUTHORIZED BY THE ACT TO INITIATE
PROCEEDINGS BEFORE THE COMMISSION TO DETERMINE WHETHER THE USE OF
LEASED TRACKS BY ANOTHER CARRIER WOULD BE IN THE PUBLIC INTEREST, BUT
IT MAY INTERVENE BEFORE THE COMMISSION IF APPLICATION FOR A CERTIFICATE
IS MADE, OR, NO SUCH APPLICATION HAVING BEEN MADE, IT MAY SUE UNDER
SEC. 1(20) TO ENJOIN CONSTRUCTION OR OPERATION CONTRARY TO SEC. 1(18). 
P. 287. 

6.  THE REMEDY PROVIDED BY SEC. 1(20) IS INCONSISTENT WITH A
PROCEEDING BEFORE THE COMMISSION TO ATTAIN THE SAME END; AND SUITS
UNDER THAT PARAGRAPH MAY NOT BE TRIED BEFORE THREE JUDGES; WHEREAS
THOSE UNDER THE URGENT DEFICIENCIES ACT (28 U.S.C. 47) TO SET ASIDE
ORDERS OF THE COMMISSION CANNOT BE TRIED IN ANY OTHER COURT.  P. 288. 

7.  IN SUITS UNDER SEC. 1(20), APPEALS MUST BE TAKEN TO THE CIRCUIT
COURT OF APPEALS; WHEREAS APPEALS FROM DISTRICT COURTS OF THREE JUDGES
MUST BE TAKEN TO THIS COURT.  THE STATUTES CANNOT BE CONSTRUED TO GIVE
THE COMMISSION, A CARRIER, OR OTHER PARTY SEEKING TO ENFORCE SEC. 1(18)
A CHOICE OF REMEDIES; I.E., BETWEEN A PROCEEDING BEFORE THE COMMISSION
TO INVALIDATE THE APPLICABLE TARIFF AND A SUIT UNDER SEC. 1(20).  THE
LATTER IS EXCLUSIVE.  P. 288. 

8.  THERE IS NO EVIDENCE IN THIS CASE THAT INCLUSION OF THE
GOVERNMENT LINE WITHIN THE TRUNK LINE'S TARIFF WITHOUT ADDITIONAL
CHARGES UNDULY IMPAIRED THE LINE-HAUL REVENUE.  P. 289. 

9.  FINDINGS BY THE COMMISSION IN ANOTHER PROCEEDING IN WHICH IT
REJECTED AN APPLICATION BY ANOTHER CORPORATION, FORMED BY THE LESSEES,
FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, HAVE NO BEARING
ON THE VALIDITY OF THE TARIFF INVOLVED IN THIS CASE.  P. 289. 

10.  IN A SUIT BY A RAILROAD TO SET ASIDE AN ORDER OF THE INTERSTATE
COMMERCE COMMISSION STRIKING OUT A TARIFF, A COUNTERCLAIM BY AN
INTERVENING CARRIER SEEKING TO ENJOIN THE COMPLAINANT'S OPERATION OF
PART OF THE LINE COVERED BY THE TARIFF, UPON THE GROUND THAT IT IS AN
EXTENSION VIOLATIVE OF SEC. 1(18), IS NOT RELATED TO THE CAUSE OF
ACTION ALLEGED IN THE COMPLAINT, IS NOT PLEADABLE UNDER EQUITY RULE 30,
AND IS NOT WITHIN THE JURISDICTION OF A COURT OF THREE JUDGES UNDER 28
U.S.C. 47.  P. 289. 

POWELL ET AL., RECEIVERS, V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF GEORGIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES IN A SUIT
BROUGHT BY RECEIVERS OF THE SEABOARD AIR LINE RAILWAY TO ANNUL AN ORDER
OF THE INTERSTATE COMMERCE COMMISSION STRIKING OUT A TARIFF.  THE FINAL
DECREE OVERRULED THE GOVERNMENT'S MOTION TO DISMISS, SUSTAINED THE
ORDER, AND GRANTED AFFIRMATIVE INJUNCTIVE RELIEF AGAINST THE PLAINTIFF
IN ACCORDANCE WITH A COUNTERCLAIM SET UP BY A COMPETING CARRIER. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

IN PROCEEDINGS INITIATED ON COMPLAINT OF THE RECEIVER OF THE CENTRAL
OF GEORGIA RAILWAY COMPANY, THE INTERSTATE COMMERCE COMMISSION ORDERED
TO BE "STRICKEN FROM THE FILES" A TARIFF FILED BY THE RECEIVERS OF THE
SEABOARD AIR LINE RAILWAY COMPANY.  THE TARIFF EXTENDED FORT BENNING
JUNCTION SWITCHING LIMITS TO INCLUDE RECEIVING AND DELIVERY TRACKS AT
FORT BENNING MILITARY POST.  IT WAS STRICKEN ON THE GROUND THAT IT
EXTENDED TO A STATION AND COVERED TRANSPORTATION NOT ON THE LINE OF THE
SEABOARD IN VIOLATION OF SEC. 6(1) OF THE INTERSTATE COMMERCE ACT.  FN1
206 I.C.C. 362.  TO ANNUL THAT ORDER THE SEABOARD BROUGHT THIS SUIT. 
THE UNITED STATES ANSWERED THAT THE ORDER IS NOT REVIEWABLE AND PRAYED
DISMISSAL OF THE COMPLAINT.  THE COMMISSION APPEARED AND BY ITS ANSWER
SUPPORTED THE ORDER.  THE CENTRAL INTERVENED; ITS ANSWER CONTAINED, IN
WHAT PURPORTS TO BE A COUNTERCLAIM UNDER EQUITY RULE 30, ALLEGATIONS
APPROPRIATE FOR A COMPLAINT IN A SUIT UNDER SEC. 1(20) OF THE ACT TO
PREVENT A VIOLATION OF SEC. 1(18).  FN2  THE SEABOARD MOVED TO STRIKE
OUT THE COUNTERCLAIM ON THE GROUNDS, AMONG OTHERS, THAT IT IS NOT
RELATED TO THE CAUSE OF ACTION ALLEGED IN THE COMPLAINT, IS NOT
PLEADABLE UNDER RULE 30, AND IS NOT WITHIN THE JURISDICTION OF A COURT
OF THREE JUDGES UNDER 28 U.S.C., SEC. 47. 

THE CASE WAS TRIED BY A COURT OF THREE, A CIRCUIT JUDGE AND TWO
DISTRICT JUDGES.  AFTER HEARING THE EVIDENCE, THE COURT IN AN OPINION
FROM WHICH THE CIRCUIT JUDGE DISSENTED HELD THE ORDER VALID ON THE
GROUNDS THAT THE TARIFF AIDED THE SEABOARD TO VIOLATE SEC. 1(18) OF THE
ACT AND THAT IT UNDULY IMPAIRED THE SEABOARD'S LINE HAUL REVENUE IN
VIOLATION OF SEC. 4(1) OF THE EMERGENCY RAILROAD TRANSPORTATION ACT,
1933, 48 STAT. 212.  12 F.SUPP.  938.  IT ENTERED A FINAL DECREE
DENYING THE MOTION OF THE UNITED STATES TO DISMISS AND THE MOTION OF
THE SEABOARD TO STRIKE OUT THE COUNTERCLAIM, DECLARED THE ORDER VALID
AND, IN ACCORDANCE WITH THE PRAYER OF THE COUNTERCLAIM, ENJOINED THE
SEABOARD FROM EXTENDING ITS LINE FROM THE JUNCTION TO THE RECEIVING AND
DELIVERY TRACKS AT FORT BENNING AND FROM OPERATING THE LINE BETWEEN
THESE POINTS WITHOUT OBTAINING FROM THE COMMISSION A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY, AND FROM USING THE TARIFF AND
CARRYING OUT A CONTRACT FOR THE USE OF THE TRACKS BETWEEN THE JUNCTION
AND THE FORT AS DEVICES TO AVOID THE NEED OF SUCH A CERTIFICATE. 

THE QUESTIONS FOR DECISION ARE: 

IS THE SEABOARD'S SUIT TO SET ASIDE THE COMMISSION'S ORDER WITHIN THE
JURISDICTION OF THE LOWER COURT?  IF SO, MAY ITS DECREE UPHOLDING THE
ORDER BE SUSTAINED? 

IS THE CENTRAL'S COUNTERCLAIM AGAINST THE SEABOARD WITHIN THE
JURISDICTION OF THE DISTRICT COURT OF THREE JUDGES UNDER 28 U.S.C.,
SEC. 47? 

FORT BENNING IS A UNITED STATES MILITARY POST IN GEORGIA; THE
RESERVATION INCLUDES 98,000 ACRES AND HAS A POPULATION OF MORE THAN
7,500.  A RAILROAD 6.8 MILES LONG, BUILT AND OWNED BY THE UNITED
STATES, CONNECTS RECEIVING AND DELIVERY TRACKS AT THE POST, FORT
BENNING, WITH A STATION, FORT BENNING JUNCTION, AT THE INTERSECTION OF
THE LINES OF THE SEABOARD AND THE CENTRAL.  FOR MORE THAN EIGHT YEARS
PRIOR TO OCTOBER 16, 1932, THE LINE BETWEEN THE JUNCTION AND FORT
BENNING WAS OPERATED BY THE CENTRAL UNDER A LICENSE GRANTED BY THE
SECRETARY OF WAR.  THE CENTRAL MADE FORT BENNING A STATION ON ITS
SYSTEM.  FOR TRANSPORTATION BETWEEN THE JUNCTION AND THAT STATION THE
CENTRAL COLLECTED ARBITRARIES FIXED BY IT IN ADDITION TO THE TARIFF
CHARGES APPLICABLE BETWEEN THE JUNCTION AND POINTS OF ORIGIN OR
DESTINATION.  MOST OF THE FREIGHT HANDLED WAS INBOUND.  THE SEABOARD
CEASED TO USE ITS CONNECTION AT THE JUNCTION AND INTERCHANGED TRAFFIC
TO AND FROM FORT BENNING WITH THE CENTRAL AT COLUMBIA, ABOUT FOUR MILES
FROM THE JUNCTION. 

IN OCTOBER, 1932, THE SECRETARY OF WAR REVOKED THE CENTRAL'S LICENSE
AND ARRANGED TO HAVE THE RAILROAD OPERATED BY CONTRACTORS, PAGE AND
HARRIS.  HE LEASED TO THEM THE LINE IN QUESTION, AND THEY AGREED TO
TRANSPORT ALL FREIGHT TO AND FROM THE JUNCTION.  THEY UNDERTOOK TO
ORGANIZE A CORPORATION AND TO HAVE IT APPLY TO THE COMMISSION FOR A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO ACQUIRE AND OPERATE
THE LINE AS A COMMON CARRIER AND THEN, BY AGREEMENTS WITH OTHER
CARRIERS, TO PUT IN EFFECT THROUGH ROUTES AND JOINT RATES TO AND FROM
FORT BENNING AS LOW AS THOSE TO AND FROM THE JUNCTION AND, OUT OF ITS
SHARE OF THE RATES SO ESTABLISHED, TO TAKE ITS PAY FOR TRANSPORTATION
PERFORMED BY IT. 

PAGE AND HARRIS ORGANIZED THE FORT BENNING RAILROAD COMPANY AND
CAUSED IT TO APPLY FOR A CERTIFICATE.  THE SEABOARD GAVE ASSURANCES
THAT IT WOULD JOIN THE NEW COMPANY IN ESTABLISHING THROUGH RATES AND
DIVISIONS.  THE CENTRAL INTERVENED IN OPPOSITION.  THE APPLICATION WAS
GRANTED BY A DIVISION OF THE COMMISSION.  193 I.C.C. 223.  BUT, ON
REARGUMENT BEFORE THE ENTIRE COMMISSION, THE CERTIFICATE WAS RESCINDED
AND THE APPLICATION DENIED.  193 I.C.C. 517.  THE APPLICANT NEVER
OPERATED THE LINE. 

SHORTLY AFTER THE FAILURE OF THE CONTRACTORS' COMPANY TO ESTABLISH
ITSELF AS A COMMON CARRIER, THE SEABOARD FILED THE TARIFF IN QUESTION,
TO BECOME EFFECTIVE DECEMBER 4, 1933.  UNDER DATE OF JUNE 7, 1934, IT
MADE A CONTRACT WITH PAGE AND HARRIS, STIPULATED TO HAVE BEEN IN FORCE
SINCE THE EFFECTIVE DATE OF THE TARIFF, WHEREBY THE LATTER AGREED TO
ACT AS ITS AGENTS FOR TRANSPORTATION OF FREIGHT BETWEEN THE JUNCTION
AND THE RECEIVING AND DELIVERY TRACKS NAMED IN THE TARIFF.  IT AGREED
TO PAY THEM $12.50 FOR EACH LOADED OR PARTLY LOADED CAR HANDLED IN
EITHER DIRECTION OR ONE-HALF OF THE GROSS REVENUE WHEN THE AMOUNT
EARNED BY THE CAR WAS LESS THAN $25. 

PARAGRAPH (8) OF THE CONTRACT PROVIDES THAT WHEN THE SEABOARD SO
DESIRES, BUT SUBJECT TO APPROVAL BY THE SECRETARY, IT SHALL HAVE THE
RIGHT, UPON PAYMENT OF REASONABLE COMPENSATION TO PAGE AND HARRIS, TO
PERFORM SWITCHING SERVICE WITH ITS OWN ENGINES AND CREWS OVER THE
LEASED TRACKS.  BY PARAGRAPH (14) OF THE CONTRACT PAGE AND HARRIS
RESERVE THE RIGHT, SUBJECT TO THE SECRETARY'S APPROVAL, TO RENDER LIKE
SERVICE FOR THE CENTRAL OR ANY OTHER COMMON CARRIER.  THE SECRETARY
APPROVED PARAGRAPH (8) SUBJECT TO THE RESERVATION IN PARAGRAPH (14) AND
TO THE CONDITION THAT PAGE AND HARRIS SHOULD EVER HOLD THEMSELVES OUT
AS WILLING AND READY TO CONTRACT ON SIMILAR TERMS WITH THE CENTRAL OR
ANY OTHER COMMON CARRIER RAILROAD. 

THE CENTRAL'S COMPLAINT INITIATING THE PROCEEDINGS WHICH RESULTED IN
THE CHALLENGED ORDER ASSAILED THE TARIFF ON THE GROUNDS THAT IT AND THE
CONTRACT WITH PAGE AND HARRIS CONSTITUTE A DEVICE TO AVOID THE
COMMISSION'S REFUSAL TO GRANT THE FORT BENNING RAILROAD COMPANY A
CERTIFICATE OF CONVENIENCE AND NECESSITY; THAT BY IT THE SEABOARD SEEKS
TO EXTEND ITS LINE TO FORT BENNING WITHOUT OBTAINING A CERTIFICATE AND
THAT IT DOES NOT COMPLY WITH SEC. 6(1) BECAUSE IT IS OBSCURE AND
AMBIGUOUS AND FAILS TO STATE THE CHARGES TO BE ABSORBED BY THE SEABOARD
OR THE COMPENSATION TO BE PAID TO PAGE AND HARRIS.  THE COMPLAINT
PRAYED CANCELATION OF THE TARIFF AND CEASE AND DESIST ORDERS AGAINST
THE SEABOARD AND PAGE AND HARRIS.  IT IS OBVIOUS FROM THE ALLEGATIONS
AND PRAYER OF THE COMPLAINT, AS WELL AS FROM ITS CONTENTIONS BEFORE THE
COMMISSION, THAT THE CENTRAL SOUGHT TO HAVE THE COMMISSION PROHIBIT THE
USE BY THE SEABOARD OR ITS AGENTS OF THE LINE BETWEEN THE JUNCTION AND
THE FORT BECAUSE IN VIOLATION OF SEC. 1(18). 

THE COMMISSION'S REPORT STATES:  THE SEABOARD EMPLOYS PAGE AND HARRIS
AS ITS AGENTS AND PAYS THEM FOR PERFORMANCE OF TRANSPORTATION OVER THE
LEASED LINE AND THAT SERVICE IS COMMON CARRIER SERVICE WITHIN THE
JURISDICTION OF THE COMMISSION.  THE CENTRAL HAS NOT FILED A SIMILAR
TARIFF AND DOES NOT PERFORM OR BEAR THE COST OF SERVICE CORRESPONDING
TO THAT COVERED BY THE SEABOARD'S TARIFF.  BEFORE THE SEABOARD COULD
LAWFULLY OPERATE THE LINE FROM THE JUNCTION TO THE FORT, IT WOULD HAVE
TO OBTAIN A CERTIFICATE OF CONVENIENCE AND NECESSITY.  BUT THE
COMMISSION DID NOT DECIDE WHETHER, ON THAT GROUND, IT HAD JURISDICTION
TO ORDER THE SEABOARD OR PAGE AND HARRIS TO CEASE AND DESIST OR TO
SUSPEND OR SET ASIDE THE TARIFF.  IT SAID (206 I.C.C. AT P. 367):  "OUR
FINDING OF UNLAWFULNESS OF THE TARIFF  ...  IS NOT PREDICATED ON THE
FACT THAT THE SEABOARD HAS VIOLATED SECTION 1(18), BUT RATHER ON THE
FACT THAT IT HAS PUBLISHED RATES TO AND FROM FORT BENNING, A STATION
NOT ON ITS LINE AND WHICH CANNOT BE REACHED BY IT OR ANY OTHER COMMON
CARRIER, AND CONSEQUENTLY IT CANNOT PAY OUT OF ITS LINE-HAUL RATES FOR
A SERVICE WHICH IT IS NOT LEGALLY OBLIGATED TO PERFORM AND WHICH IT
CANNOT PERFORM EXCEPT THROUGH THE EMPLOYMENT OF THE CONTRACTORS WITH
THE GOVERNMENT."  IT ADDED THAT APPROVAL BY THE SECRETARY OF WAR OF THE
CONTRACT BETWEEN THE SEABOARD AND PAGE AND HARRIS "GRANTED NO RIGHTS TO
THE SEABOARD TO OPERATE OVER THE TRACK IN QUESTION.  MANIFESTLY THE WAR
DEPARTMENT COULD TAKE NO ACTION ON A SUBJECT MATTER WHICH THE CONGRESS
HAS PLACED UNDER OUR EXCLUSIVE JURISDICTION."  THE COMMISSION DID NOT
FIND THAT THE TARIFF IMPOSED ANY UNREASONABLE BURDEN UPON THE REVENUES
OF THE SEABOARD OR CONNECTING CARRIERS OR THAT THE SERVICES COVERED BY
IT WOULD BE PERFORMED FOR LESS THAN REASONABLE COMPENSATION OR THAT ITS
USE WOULD RESULT IN ANY DISADVANTAGE TO SHIPPERS, CARRIERS OR THE
PUBLIC. 

1.  THE UNITED STATES AND THE INTERSTATE COMMERCE COMMISSION CONTEND
THAT THE COMMISSION'S ORDER IS NOT REVIEWABLE UNDER THE STATUTE.  FN3
THEY DO NOT SUGGEST THAT THE ORDER IS A NEGATIVE ONE OR THAT THE
COMMISSION DID NOT MAKE AN UTTERANCE WHICH IN FORM PURPORTED TO BE AN
ORDER.  BUT THEY SAY THAT IT IS NOT DIRECTED TO ANY PARTY; IT REQUIRES
NO ONE TO DO OR TO REFRAIN FROM DOING ANY ACT; IT COULD NOT BE
ENFORCED, OBEYED OR DISOBEYED; IT DID NOT SPEAK TO THE FUTURE OR
CONTEMPLATE ANY FUTURE EFFECT BECAUSE, ON AND AFTER THE DATE IT WAS
MADE, IT HAD NO SIGNIFICANCE "EXCEPT AS A RECORD OF A CERTAIN COMPLETED
ACT PERFORMED BY THE COMMISSION." 

BUT OVEREMPHASIS UPON THE MERE FORM OF THE ORDER MAY NOT BE PERMITTED
TO OBSCURE ITS PURPOSE AND EFFECT.  BY IT THE COMMISSION MEANT TO PUT
AN END TO THE TARIFF IN QUESTION AND THE SERVICE OF THE SEABOARD
ACCORDING TO ITS TERMS.  THE TARIFF WAS A RULE BINDING THE SEABOARD TO
FURNISH TRANSPORTATION TO AND FROM THE FORT FOR CHARGES UNDER OTHER
TARIFFS APPLICABLE TO AND FROM THE JUNCTION.  THE ORDER WOULD ELIMINATE
THAT RULE AND SUBSTITUTE FOR IT TERMS OF THE TARIFFS APPLICABLE PRIOR
TO ITS EFFECTIVE DATE.  IN EFFECT THE ORDER GRANTS THE RELIEF SOUGHT BY
THE CENTRAL'S COMPLAINT; IT CONFINES THE SEABOARD'S SERVICE WITHIN THE
JUNCTION SWITCHING LIMITS, DENIES LEAVE TO THAT CARRIER TO FURNISH, AND
PREVENTS IT FROM FURNISHING, TRANSPORTATION TO AND FROM FORT BENNING. 
INTERPRETED ACCORDING TO ITS PURPOSE, THE ORDER IS IN SUBSTANCE AND
EFFECT AN AFFIRMATIVE ONE AND THEREFORE REVIEWABLE UNDER THE STATUTE. 
CHICAGO JUNCTION CASE, 264 U.S. 258, 263.  INTERMOUNTAIN RATE CASES,
234 U.S. 476, 490.  UNITED STATES V. NEW RIVER CO., 265 U.S. 533, 539
541.  ALTON R. CO. V. UNITED STATES, 287 U.S. 229, 237.  IT IS CLEAR
THAT THE DISTRICT COURT OF THREE JUDGES HAD JURISDICTION TO ENTERTAIN
THE SEABOARD'S SUIT. 

2.  AS TO THE VALIDITY OF THE ORDER.  THE COMMISSION HELD THE TARIFF
VIOLATED SEC. 6 SOLELY BECAUSE IT COVERED SERVICE AND PUBLISHED RATES
TO AND FROM A STATION, FORT BENNING, FOUND NOT TO BE ON THE LINE OF THE
SEABOARD.  IT MAY BE ASSUMED THAT, UNLESS THE RECORD CONCLUSIVELY SHOWS
THAT THE LEASED TRACKS CONSTITUTE A PART OF THE SEABOARD'S LINE WITHIN
THE MEANING OF SEC. 6, THE TARIFF WAS NOT AUTHORIZED AND THE
COMMISSION'S ORDER SHOULD BE SUSTAINED.  IN SUBSTANCE, THE FACTS FOUND
ARE:  THE UNITED STATES LEASED THE LINE TO PAGE AND HARRIS.  WITH THE
APPROVAL OF THE SECRETARY, THE LESSEES WERE EMPLOYED BY THE SEABOARD AS
ITS AGENTS TO TRANSPORT FREIGHT OVER THE LEASED TRACKS, AND THE
SEABOARD WAS GIVEN THE RIGHT TO PERFORM THE TRANSPORTATION WITH ITS OWN
ENGINES AND CREWS.  PAGE AND HARRIS RESERVED THE RIGHT TO RENDER FOR
THE CENTRAL AND OTHER CARRIERS SERVICE LIKE THAT FURNISHED BY THEM AS
AGENT OF THE SEABOARD, AND WERE REQUIRED BY THE SECRETARY TO CONTRACT
WITH SUCH CARRIERS ON TERMS SIMILAR TO THOSE MADE WITH THE SEABOARD. 
THE COMMISSION RIGHTLY HELD THAT IN RESPECT OF THE TRAFFIC COVERED BY
THE TARIFF PAGE AND HARRIS AS THE SEABOARD'S AGENTS WERE COMMON
CARRIERS AND THEY AND THE SERVICE PERFORMED BY THEM WERE SUBJECT TO ITS
JURISDICTION.    WHETHER THE LEASED TRACKS BE, WITHIN THE MEANING OF
SEC. 1(18), AN EXTENSION OR ADDITION, OR, WITHIN THE MEANING OF SEC.
1(22), SPUR, INDUSTRIAL, TEAM, SWITCHING OR SIDE TRACKS, IT IS CLEAR
THAT THE TRANSPORTATION OVER THEM BY OR FOR THE SEABOARD IS REQUIRED TO
BE COVERED BY A TARIFF FILED IN ACCORDANCE WITH THE ACT.  SEC. 6(7). 
THE ACTION OF THE SECRETARY WAS NOT INCONSISTENT WITH PROPER EXERTION
OF THE COMMISSION'S AUTHORITY TO GRANT OR WITHHOLD A CERTIFICATE OF
PUBLIC CONVENIENCE AND NECESSITY FOR THE USE OF THE LEASED TRACKS BY OR
FOR THE SEABOARD AS REQUIRED BY SEC. 1(18) OR TO BRING SUIT UNDER SEC.
1(20) TO ENFORCE THAT PARAGRAPH.  IT FOLLOWS THAT, SEC. 1(18) ASIDE,
THE LEASED TRACKS COVERED BY THE TARIFF CONSTITUTE A PART OF, AND
EXTEND TO OR INCLUDE A STATION ON, THE LINE OF THE SEABOARD WITHIN THE
MEANING OF SEC. 6.  INDEED, THERE IS NOTHING IN THE COMMISSION'S REPORT
OR IN THE BRIEFS OF APPELLEES THAT TENDS TO GIVE SUPPORT TO THE VIEW
THAT, IF SEC. 1(18) HAD NOT BEEN ENACTED, THE TARIFF WOULD NOT BE
VALID. 

AS TO THE BEARING OF SEC. 1(18) ON THE VALIDITY OF THE TARIFF.  THE
UNITED STATES AND THE COMMISSION ARGUE THAT THE SEABOARD CANNOT, BY THE
ARRANGEMENT FOR THE USE OF THE LEASED TRACKS, PLACE FORT BENNING ON ITS
LINE, BECAUSE THEREBY THE SEABOARD EXTENDS ITS LINE AND SEC. 1(18)
PROHIBITS AN EXTENSION WITHOUT THE COMMISSION'S APPROVAL; THAT THE
TARIFF OFFERS A SERVICE THAT CANNOT LEGALLY BE PERFORMED BECAUSE THE
EXTENSION, NOT HAVING BEEN APPROVED, IS FORBIDDEN BY THAT PARAGRAPH. 
AND THEY SAY THAT, SINCE THE CARRIER IS REQUIRED TO FURNISH WHATEVER
SERVICE IS COVERED BY ITS TARIFFS, THE INCLUSION OF THAT WITHIN THE
SEABOARD'S EXTENDED SWITCHING LIMITS WOULD COMPEL THE CARRIER TO
PERFORM AN ACT PROHIBITED BY SEC. 1(18), AND THIS THE COMMISSION MAY
NOT PERMIT.  THE PURPOSE OF SECS. 1(18) TO 1(22) OF THE ACT WAS TO
EMPOWER THE COMMISSION IN PROCEEDINGS INSTITUTED BY A CARRIER PROPOSING
TO ENGAGE IN TRANSPORTATION OVER OR BY MEANS OF AN ADDITIONAL OR
EXTENDED LINE AUTHORITATIVELY TO DECIDE WHETHER IT WOULD BE IN THE
PUBLIC INTEREST.  UNLESS THE PROJECT IS ONE COVERED BY SEC. 1(18), THE
COMMISSION IS NOT AUTHORIZED BY THE ACT TO CONSIDER WHETHER IT IS IN
THE PUBLIC INTEREST AND, FOR LACK OF JURISDICTION TO DETERMINE THAT
QUESTION, IT MUST DENY THE APPLICATION.  UPON PRESENTATION BY THE
CARRIER OF APPLICATION FOR A CERTIFICATE, THE COMMISSION, FOR THE
PURPOSE OF DETERMINING WHETHER IT IS AUTHORIZED BY THE ACT TO CONSIDER
THE MERITS, MAY PASS INCIDENTALLY UPON THE QUESTION WHETHER THE PROJECT
IS ONE COVERED BY SEC. 1(18).  BUT THE DECISION OF THAT QUESTION IS FOR
THE COURT IN EITHER A SUIT TO SET ASIDE AN ORDER GRANTING A CERTIFICATE
OR IN A SUIT UNDER SEC. 1(20) TO ENJOIN A VIOLATION OF SEC. 1(18).  THE
FUNCTION OF THE COURT IS TO CONSTRUE THAT PARAGRAPH; THAT OF THE
COMMISSION IS TO DETERMINE WHETHER THE PROJECT, IF IT IS ONE COVERED BY
THE PARAGRAPH, IS IN THE PUBLIC INTEREST.  THE CENTRAL WAS NOT
AUTHORIZED BY THE ACT TO INITIATE A PROCEEDING BEFORE THE COMMISSION TO
DETERMINE WHETHER THE SEABOARD'S USE OF THE LEASED TRACKS WAS OR WOULD
BE IN THE PUBLIC INTEREST.  IF APPLICATION FOR A CERTIFICATE HAD BEEN
MADE, THE CENTRAL COULD HAVE APPEARED IN OPPOSITION.  THE SEABOARD NOT
HAVING MADE APPLICATION, THE CENTRAL'S SOLE REMEDY WAS A SUIT UNDER
SEC. 1(20).  THAT PARAGRAPH PROVIDES THE ONLY METHOD FOR ENFORCING SEC.
1(18).  IT DECLARES THAT ANY CONSTRUCTION OR OPERATION CONTRARY TO SEC.
1(18) MAY BE ENJOINED AT THE SUIT OF THE UNITED STATES, THE COMMISSION,
THE REGULATING BODY OF THE STATE AFFECTED OR ANY PARTY IN INTEREST. 
TEXAS & PACIFIC RY. V. GULF, C. & S.F. RY., 270 U.S. 266, 271-274. 
PIEDMONT & NORTHERN RY. V. UNITED STATES, 280 U.S. 469, 476 ET SEQ.
CHESAPEAKE & OHIO RY. V. UNITED STATES, 283 U.S. 35, 42.  WESTERN
PACIFIC CALIFORNIA R. CO. V. SOUTHERN PACIFIC CO., 284 U.S. 47.  ST.
LOUIS S.W. RY. V. MISSOURI PACIFIC R. CO., 289 U.S. 76, 81, 82. 
TRANSIT COMMISSION V. UNITED STATES, 289 U.S. 121.  UNITED STATES V.
IDAHO, 298 U.S. 105, 109. 

THE CONTENTION OF THE UNITED STATES AND THE COMMISSION COMES TO THIS:
FORT BENNING IS NOT A STATION ON THE SEABOARD'S LINE BECAUSE BY USE OF
THE TARIFF AND THE LEASED TRACKS THE CARRIER VIOLATES SEC. 1(18). 
SINCE THE TARIFF EXTENDS TO A STATION NOT ON THE CARRIER'S LINE, IT
VIOLATES SEC. 6.  THEREFORE THE COMMISSION RIGHTLY ORDERED THE TARIFF
TO BE STRICKEN FROM ITS FILES.  PLAINLY THAT BEGS THE QUESTION.  IT
TAKES FOR GRANTED A VIOLATION OF SEC. 1(18), A FACT NOT ESTABLISHED AND
ONE WHICH THE COMMISSION HAD NO JURISDICTION TO DETERMINE.  THE
CONTENTION IS FALLACIOUS AND MUST BE REJECTED. 

PLAINLY, THE CENTRAL MISTOOK ITS REMEDY.  BY ITS COMPLAINT AGAINST
THE TARIFF IT SOUGHT AN ORDER OF THE COMMISSION EQUIVALENT TO A DECREE
OF COURT IN A SUIT UNDER SEC. 1(20) ENJOINING THE SEABOARD FROM
EXTENDING ITS SERVICE BECAUSE CONTRARY TO SEC. 1(18).  THE ORDER, AS
CONSTRUED AND SUPPORTED BY APPELLEES, IS THE PRACTICAL EQUIVALENT OF
SUCH A DECREE.  THE GOVERNING STATUTORY PROVISIONS DO NOT PERMIT
SUBSTITUTION OF THE COMMISSION'S ORDER FOR A DECREE OF COURT.  THE
REMEDY PROVIDED BY SEC. 1(20) IS CLEARLY INCONSISTENT WITH A PROCEEDING
BEFORE THE COMMISSION TO ATTAIN THE SAME END.  SUITS UNDER THAT
PARAGRAPH MAY NOT BE TRIED BEFORE THREE JUDGES.  THOSE UNDER THE URGENT
DEFICIENCIES ACT (28 U.S.C., SEC. 47) TO SET ASIDE ORDERS OF THE
COMMISSION CANNOT BE TRIED IN ANY OTHER COURT.  IN SUITS UNDER SEC.
1(20), APPEALS MUST BE TAKEN TO THE CIRCUIT COURT OF APPEALS.  APPEALS
FROM DISTRICT COURTS OF THREE JUDGES MUST BE TAKEN TO THIS COURT.  THE
STATUTES CANNOT BE CONSTRUED TO GIVE THE COMMISSION, A CARRIER OR OTHER
PARTY SEEKING TO ENFORCE SEC. 1(18) A CHOICE OF REMEDIES; I.E., BETWEEN
A PROCEEDING BEFORE THE COMMISSION TO INVALIDATE THE APPLICABLE TARIFF
AND A SUIT UNDER SEC. 1(20).  THE LATTER IS EXCLUSIVE. 

THE GRAVAMEN OF THE CENTRAL'S COMPLAINT IS NOT THAT THE SEABOARD IS
ENGAGING IN TRANSPORTATION LIKE THAT FURNISHED BY THE CENTRAL BEFORE
THE SECRETARY REVOKED ITS LICENSE.  BUT IT IS THAT THE SEABOARD DOES IT
WITHOUT ADDITIONAL CHARGES.  THERE IS NOTHING IN THE FINDINGS OF THE
COMMISSION TO SUGGEST THAT THE TARIFF UNDULY BURDENS THE SEABOARD'S
REVENUE OR THAT IT IS UNREASONABLE OR UNJUSTLY DISCRIMINATORY.  ITS
FINDINGS ON THE FORT BENNING RAILROAD COMPANY'S APPLICATION ALTHOUGH
PUT IN EVIDENCE ARE NOT FINDINGS IN THE PROCEEDING IN WHICH WAS MADE
THE ORDER IN QUESTION AND HAVE NO BEARING ON THE VALIDITY OF THE TARIFF
UNDER CONSIDERATION.  THE LOWER COURT ERRED IN SUSTAINING THE
COMMISSION'S ORDER ON THE GROUND THAT THE "TARIFF UNDULY IMPAIRS THE
LINE HAUL REVENUE."  THE COMMISSION DID NOT SO FIND.  THE ORDER CANNOT
BE SUSTAINED. 

3.  THE COUNTERCLAIM WAS NOT PROPERLY BEFORE THE COURT AND COULD NOT
BE ENTERTAINED AS AN INCIDENT TO OR PART OF THE SUIT TO SET ASIDE THE
COMMISSION'S ORDER RESPECTING THE TARIFF. 

THE SEABOARD'S BILL MERELY ASSAILS THE COMMISSION'S ORDER.  THE ISSUE
BETWEEN THE ORIGINAL PARTIES IS CONFINED TO ITS VALIDITY.  THE SUIT IS
A STATUTORY ONE TRIABLE ONLY IN A SPECIALLY CONSTITUTED COURT.  THE
COUNTERCLAIM IS BASED ON A VIOLATION OF SEC. 1(18); THE FACTS ALLEGED
ARE NOT SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION WITHIN THE
JURISDICTION OF THAT COURT.  PITTSBURGH & WEST VIRGINIA RY. V. UNITED
STATES, 281 U.S. 479, 488.  MOREOVER, THE COUNTERCLAIM DOES NOT ARISE
OUT OF THE TRANSACTION THAT IS THE SUBJECT OF THE SUIT AND IS NOT
GERMANE OR RELATED TO IT. EQUITY RULE 30 CANNOT REASONABLY BE CONSTRUED
TO AUTHORIZE INTERVENING DEFENDANTS, IN A SUIT TO SET ASIDE AN ORDER OF
THE COMMISSION, TO SET UP COUNTERCLAIMS NOT ARISING OUT OF OR RELATED
TO THE SUBJECT MATTER OF THE SUIT.  THAT WOULD PERMIT COMPLICATIONS
LIKELY TO BURDEN AND IMPEDE AND WOULD BE CONTRARY TO THE PURPOSE AND
INTENT OF THE RULE.  CHANDLER & PRICE CO. V. BRANDTJEN & KLUGE, INC.,
296 U.S. 53, 59.  THE COUNTERCLAIM, NOT BEING WITHIN THE JURISDICTION
OF THE SPECIALLY CONSTITUTED COURT, SHOULD HAVE BEEN DISMISSED FOR WANT
OF JURISDICTION.  PITTSBURGH & WEST VIRGINIA RY. V. UNITED STATES, UBI
SUPRA. 

COMPLAINANTS WERE ENTITLED TO THE JUDGMENT AND DECREE OF THE
SPECIALLY CONSTITUTED COURT DECLARING THAT THE COMMISSION'S ORDER
STRIKING THE TARIFF FROM ITS FILES IS ILLEGAL AND VOID AND SETTING
ASIDE AND ANNULLING THE SAME.  REVERSED. 

FN1  SEC. 6(1)  "EVERY COMMON CARRIER  ...  SHALL FILE WITH THE
COMMISSION  ...  SCHEDULES SHOWING ALL  ...  CHARGES FOR TRANSPORTATION
BETWEEN DIFFERENT POINTS ON ITS OWN ROUTE AND BETWEEN POINTS ON ITS OWN
ROUTE AND POINTS ON THE ROUTE OF ANY OTHER CARRIER BY RAILROAD  ...
WHEN A THROUGH ROUTE AND JOINT RATE HAVE BEEN ESTABLISHED....  THE
SCHEDULES  ...  SHALL PLAINLY STATE THE PLACES BETWEEN WHICH PROPERTY
...  WILL BE CARRIED  ...  AND  ...  STATE SEPARATELY ALL TERMINAL
CHARGES  ...  AND ALL OTHER CHARGES WHICH THE COMMISSION MAY REQUIRE,
ALL PRIVILEGES OR FACILITIES GRANTED OR ALLOWED, AND ANY RULES OR
REGULATIONS WHICH IN ANY WISE CHANGE, AFFECT, OR DETERMINE ANY PART OR
THE AGGREGATE OF SUCH  ...  CHARGES, OR THE VALUE OF THE SERVICE
RENDERED ..."  (49 U.S.C. 6(1)) 

SEC. 6(7)  "NO CARRIER  ...  SHALL ENGAGE OR PARTICIPATE IN THE
TRANSPORTATION OF  ...  PROPERTY ...  UNLESS THE  ...  CHARGES  ...
HAVE BEEN FILED  ...  NOR SHALL ANY CARRIER  ...  COLLECT ...
DIFFERENT COMPENSATION FOR SUCH TRANSPORTATION  ...  OR FOR ANY SERVICE
IN CONNECTION THEREWITH, BETWEEN THE POINTS NAMED IN SUCH TARIFFS THAN
THE  ...  CHARGES WHICH ARE SPECIFIED IN THE TARIFF FILED AND IN EFFECT
AT THE TIME  ..."  (49 U.S.C. 6(7)) 

FN2  1(18)  "NO CARRIER BY RAILROAD  ...  SHALL UNDERTAKE THE
EXTENSION OF ITS LINE OF RAILROAD, OR THE CONSTRUCTION OF A NEW LINE OF
RAILROAD, OR SHALL ACQUIRE OR OPERATE ANY LINE OF RAILROAD, OR
EXTENSION THEREOF, OR SHALL ENGAGE IN TRANSPORTATION UNDER THIS CHAPTER
OVER OR BY MEANS OF SUCH ADDITIONAL OR EXTENDED LINE OF RAILROAD,
UNLESS AND UNTIL THERE SHALL FIRST HAVE BEEN OBTAINED FROM THE
COMMISSION A CERTIFICATE THAT THE PRESENT OR FUTURE PUBLIC CONVENIENCE
AND NECESSITY REQUIRE OR WILL REQUIRE THE CONSTRUCTION, OR OPERATION,
OR CONSTRUCTION AND OPERATION, OF SUCH ADDITIONAL OR EXTENDED LINE OF
RAILROAD  ..."  (49 U.S.C. 1(18)) 

SEC. 1(20)  "...  ANY CONSTRUCTION, (OR) OPERATION  ...  CONTRARY TO
THE PROVISIONS OF  ... PARAGRAPH (18)  ...  MAY BE ENJOINED BY ANY
COURT OF COMPETENT JURISDICTION AT THE SUIT OF THE UNITED STATES, THE
COMMISSION, ANY COMMISSION OR REGULATING BODY OF THE STATE OR STATES
AFFECTED, OR ANY PARTY IN INTEREST  ..."  (49 U.S.C. 1(20)) 

SEC. 1(22)  "THE AUTHORITY OF THE COMMISSION, CONFERRED BY PARAGRAPHS
(18) TO (21)  ...  SHALL NOT EXTEND TO THE CONSTRUCTION  ...  OF SPUR,
INDUSTRIAL, TEAM, SWITCHING OR SIDE TRACKS, LOCATED OR TO BE LOCATED
WHOLLY WITHIN ONE STATE  ..."  (49 U.S.C. 1(22)) 

FN3  SEE 28 U.S.C. SECS. 41(28), 43, 44, 45, 45A, 47, 47A, 345.  CF.
SEC. 380. 

MR. JUSTICE BRANDEIS AND MR. JUSTICE STONE TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE CARDOZO IS OF THE OPINION THAT THE DECREE SHOULD BE
MODIFIED BY STRIKING THE COUNTERCLAIM OF THE INTERVENING DEFENDANT, AND
AS SO MODIFIED, AFFIRMED. 
..END :













INGELS V. MORF, 300 U.S. 290 


NO. 456.  ARGUED FEBRUARY 5, 1937.  - DECIDED MARCH 1, 1937.  - 14
F.SUPP.  922, AFFIRMED. 


1.  TO JUSTIFY THE EXACTION BY A STATE OF A MONEY PAYMENT BURDENING
INTERSTATE COMMERCE, IT MUST AFFIRMATIVELY APPEAR THAT IT IS DEMANDED
AS REIMBURSEMENT FOR THE EXPENSE OF PROVIDING FACILITIES, OR OF
ENFORCING REGULATIONS OF THE COMMERCE WHICH ARE WITHIN ITS
CONSTITUTIONAL POWER.  THIS MAY APPEAR FROM THE STATUTE ITSELF, OR FROM
THE USE OF THE MONEY COLLECTED, TO DEFRAY SUCH EXPENSE.  P. 294. 

2.  THE CALIFORNIA "CARAVAN ACT," STATS., 1935, C. 402, DEFINES
"CARAVANING" AS THE TRANSPORTATION "FROM WITHOUT THE STATE, OF ANY
MOTOR VEHICLE OPERATED ON ITS OWN WHEELS OR IN TOW OF ANOTHER VEHICLE
FOR THE PURPOSE OF SELLING OR OFFERING THE SAME FOR SALE  ...  TO ANY
PURCHASER" LOCATED WITHIN OR WITHOUT THE STATE; IT PROHIBITS CARAVANING
WITHOUT ATTACHING TO EACH VEHICLE A SPECIAL PERMIT, FOR WHICH A FEE OF
$15.00 IS EXACTED.  THE PERMIT IS VALID ONLY FOR A SPECIFIED TRIP OR
TRIPS AND FOR A PERIOD OF 90 DAYS.  THE ACT DIRECTS THAT THE FEES
COLLECTED BE PAID INTO THE GENERAL FUND IN THE STATE TREASURY, AND
DECLARES THAT THEY ARE "INTENDED TO REIMBURSE THE STATE TREASURY FOR
THE ADDED EXPENSE WHICH THE STATE MAY INCUR IN THE ADMINISTRATION AND
ENFORCEMENT OF THIS ACT, AND THE ADDED EXPENSE OF POLICING THE HIGHWAYS
OVER WHICH SUCH CARAVANING MAY BE CONDUCTED, SO AS TO PROVIDE FOR THE
SAFETY OF TRAFFIC ON SUCH HIGHWAYS WHERE CARAVANING IS BEING
CONDUCTED."  HELD: 

(1)  FROM A CONSIDERATION OF THE ACT, IN CONNECTION WITH OTHER
CALIFORNIA ENACTMENTS, IT APPEARS THAT THE COLLECTIONS ARE USED, NOT TO
MEET THE COST OF HIGHWAY CONSTRUCTION OR MAINTENANCE, BUT TO REIMBURSE
THE STATE TREASURY FOR THE ADDED EXPENSE OF ADMINISTERING THE CARAVAN
ACT AND POLICING THE CARAVANING TRAFFIC.  P. 295. 

(2)  THE BURDEN OF SHOWING THAT, FOR THIS PURPOSE, THE EXACTION IS
EXCESSIVE RESTED UPON THE PERSON ATTACKING IT.  P. 296. 

(3)  FINDING OF THE TRIAL COURT THAT THE FEE IS EXCESSIVE WAS
SUSTAINED BY THE EVIDENCE IN THIS CASE.  ID. 

(4)  THE LICENSING PROVISIONS THEREFORE IMPOSE AN UNCONSTITUTIONAL
BURDEN ON INTERSTATE COMMERCE.  MORF V. BINGAMAN, 298 U.S. 407,
DISTINGUISHED.  PP. 294, 297. 

INGELS, DIRECTOR OF THE MOTOR VEHICLE DEPARTMENT, ET AL. V. MORF ET
AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF CALIFORNIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES, ENJOINING
THE ENFORCEMENT OF PROVISIONS OF THE CALIFORNIA CARAVAN ACT. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS SUIT WAS BROUGHT BY APPELLEE IN THE DISTRICT COURT FOR SOUTHERN
CALIFORNIA, THREE JUDGES SITTING, TO RESTRAIN APPELLANTS, STATE
OFFICERS, FROM ENFORCING THE PROVISIONS OF THE "CARAVAN" ACT, CAL.
STAT. 1935, C. 402, AS A FORBIDDEN BURDEN ON INTERSTATE COMMERCE, AND
AS AN INFRINGEMENT OF THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF
THE FOURTEENTH AMENDMENT.  FROM A DECREE GRANTING THE RELIEF PRAYED,
THE CASE COMES HERE ON APPEAL UNDER SECS. 238(3), 266, JUDICIAL CODE. 

THE CHALLENGED STATUTE DEFINES "CARAVANING" AS THE TRANSPORTATION,
"FROM WITHOUT THE STATE, OF ANY MOTOR VEHICLE OPERATED ON ITS OWN
WHEELS OR IN TOW OF ANOTHER VEHICLE FOR THE PURPOSE OF SELLING OR
OFFERING THE SAME FOR SALE  ...  TO ANY PURCHASER" LOCATED WITHIN OR
WITHOUT THE STATE.  SECTIONS 2 AND 3 PROHIBIT CARAVANING WITHOUT
ATTACHING TO EACH VEHICLE SO TRANSPORTED A SPECIAL PERMIT ISSUED BY THE
STATE MOTOR VEHICLE DEPARTMENT, FOR WHICH A FEE OF $15 IS EXACTED.  A
PERMIT IS VALID ONLY FOR THE TRIP OR TRIPS SPECIFIED IN IT, AND FOR A
PERIOD OF NINETY DAYS (SEC. 4).  SECTION 6 DIRECTS THAT THE FEES
COLLECTED BE PAID INTO THE GENERAL FUND IN THE STATE TREASURY, AND
DECLARES THAT THEY ARE "INTENDED TO REIMBURSE THE STATE TREASURY FOR
THE ADDED EXPENSE WHICH THE STATE MAY INCUR IN THE ADMINISTRATION AND
ENFORCEMENT OF THIS ACT, AND THE ADDED EXPENSE OF POLICING THE HIGHWAYS
OVER WHICH SUCH CARAVANING MAY BE CONDUCTED, SO AS TO PROVIDE FOR THE
SAFETY OF TRAFFIC ON SUCH HIGHWAYS WHERE CARAVANING IS BEING
CONDUCTED." 

APPELLEE, A RESIDENT OF LOS ANGELES, CALIFORNIA, CARRIES ON HIS
BUSINESS THERE AS A DEALER IN AUTOMOBILES.  HE PURCHASES USED
AUTOMOBILES IN OTHER STATES AND TRANSPORTS THEM FROM THE PLACE OF
PURCHASE TO POINTS ON THE CALIFORNIA BOUNDARY LINE, THENCE OVER STATE
HIGHWAYS TO LOS ANGELES, AND SOMETIMES TO OTHER PLACES, WHERE HE OFFERS
THEM FOR SALE.  HE CONDUCTS FROM 20 TO 25% OF THE TOTAL MOVEMENT IN
SUCH TRAFFIC.  SOME OF HIS VEHICLES ARE COUPLED TOGETHER IN TWOS, AND
MOVE IN CARAVANS OR FLEETS, SOMETIMES AGGREGATING MORE THAN 30 CARS. 
HE GAVE TESTIMONY, WHICH APPELLANTS SHARPLY CHALLENGE, THAT FROM 30 TO
40% MOVE SINGLY AND NOT IN COMPANY WITH ANY OTHER VEHICLE.  A PERMIT IS
REQUIRED FOR EACH CAR, WHETHER IT MOVES ALONE OR AS PART OF A FLEET. 
THE DISTRICT COURT FOUND THAT SUCH MOVEMENT OF VEHICLES IN CARAVANS OF
MORE THAN FOUR CREATE SPECIAL TRAFFIC DIFFICULTIES, BUT THAT THE
MOVEMENT OF FOUR OR LESS "CONSTITUTES NO POLICE PROBLEM"; THAT THERE IS
CONSIDERABLE LIKE TRAFFIC CARRIED ON WHOLLY WITHIN THE STATE, FOR WHICH
THE FEE OF $15 IS NOT EXACTED AND FOR WHICH NO SIMILAR OR OTHER FEE IS
REQUIRED; AND THAT THE DEMANDED FEE FOR EACH CAR MOVING IN THE
INTERSTATE TRAFFIC IS EXCESSIVE AND BEARS NO REASONABLE RELATION TO THE
INCREASED COST OF POLICING.  IT CONCLUDED, AS THE APPELLEE CONTENDS
HERE, THAT THE STATUTE DENIES TO APPELLEE DUE PROCESS AND EQUAL
PROTECTION, AND PLACES A FORBIDDEN BURDEN ON, AND DISCRIMINATES
AGAINST, INTERSTATE COMMERCE. 

WE FIND IT NECESSARY TO CONSIDER ONLY THE CONTENTION THAT THE
LICENSING PROVISIONS BURDEN INTERSTATE COMMERCE.  WE DO NOT DISCUSS
APPELLANTS' SUGGESTION THAT, CONTRARY TO THE FINDING BELOW, THERE IS NO
EVIDENCE OF COMPARABLE TRAFFIC MOVING INTRASTATE, AND HENCE NO
DISCRIMINATION AGAINST INTERSTATE COMMERCE BY THE FAILURE OF THE ACT TO
EXACT A FEE OF THOSE ENGAGED IN INTRASTATE COMMERCE.  IT IS NOT DENIED
THAT THE PERMIT FEE, IMPOSED UPON THOSE ENGAGED IN INTERSTATE COMMERCE,
BURDENS THIS COMMERCE, BUT APPELLANTS URGE THAT IT IS A PERMISSIBLE
CHARGE FOR THE USE OF THE STATE HIGHWAYS AND FOR THE COST OF POLICING
THE TRAFFIC, INCLUDING THE COST OF ADMINISTERING THE ACT. 

IN MORF V. BINGAMAN, 298 U.S. 407, RECENTLY BEFORE THIS COURT, THE
CARAVANING ACT OF NEW MEXICO, CONTAINING SOME FEATURES SIMILAR TO THE
PRESENT ACT, WAS LIKEWISE ASSAILED AS BURDENING INTERSTATE COMMERCE BY
THE IMPOSITION OF A FEE, OF $7.50 FOR EACH VEHICLE MOVING BY ITS OWN
POWER, AND $5.00 FOR EACH VEHICLE TOWED BY ANOTHER WHEN MOVING IN
CARAVAN.  THE STATUTE MADE THE PRIVILEGE OF USING THE HIGHWAY
CONDITIONAL UPON PAYMENT OF THE FEE.  THE FEES COLLECTED WERE DEVOTED
IN PART TO HIGHWAY PURPOSES.  WE HELD THAT THE FEES WERE A CHARGE FOR
THE USE OF THE HIGHWAYS, NOT SHOWN BY THE TAXPAYER TO BE UNREASONABLE,
WHICH THE STATE MIGHT LAWFULLY DEMAND.  COMPARE HENDRICK V. MARYLAND,
235 U.S. 610, 624; INTERSTATE BUSSES CORP. V. BLODGETT, 276 U.S. 245,
249, 250. 

TO JUSTIFY THE EXACTION BY A STATE OF A MONEY PAYMENT BURDENING
INTERSTATE COMMERCE, IT MUST AFFIRMATIVELY APPEAR THAT IT IS DEMANDED
AS REIMBURSEMENT FOR THE EXPENSE OF PROVIDING FACILITIES, OR OF
ENFORCING REGULATIONS OF THE COMMERCE WHICH ARE WITHIN ITS
CONSTITUTIONAL POWER.  SPROUT V. SOUTH BEND, 277 U.S. 163, 169, 170;
INTERSTATE TRANSIT, INC. V. LINDSEY, 283 U.S. 183, 186; POSTAL
TELEGRAPH-CABLE CO. V. RICHMOND, 249 U.S. 252, 259; CLYDE MALLORY LINES
V. ALABAMA, 296 U.S. 261, 267.  THIS MAY APPEAR FROM THE STATUTE
ITSELF, MORF V. BINGAMAN, SUPRA; CLARK V. POOR, 274 U.S. 554, 557, OR
FROM THE USE OF THE MONEY COLLECTED, TO DEFRAY SUCH EXPENSE.  HICKLIN
V. CONEY, 290 U.S. 169, 173; SEE KANE V. NEW JERSEY, 242 U.S. 160, 168,
169; AERO MAYFLOWER TRANSIT CO., V. GEORGIA PUBLIC SERVICE COMM'N, 295
U.S. 285, 289; COMPARE INTERSTATE BUSSES CORP. V. BLODGETT, SUPRA,
249. 

HERE APPELLANT DOES NOT SHOW THAT THE FEES COLLECTED ARE USED TO MEET
THE COST OF THE CONSTRUCTION OR MAINTENANCE OF ITS HIGHWAYS.  SECTION 6
OF THE CHALLENGED ACT, WHICH DIRECTS THAT THE PERMIT FEES BE PAID INTO
THE GENERAL FUND OF THE STATE TREASURY, IS TO BE CONTRASTED WITH OTHER
CALIFORNIA STATUTES RELATING TO MOTOR VEHICLES, WHICH EXACT LICENSE
FEES AND TAXES AND DIRECT THAT THEY BE PAID, AT LEAST IN PART, INTO
SPECIAL FUNDS DEVOTED TO HIGHWAY PURPOSES.  MOTOR FUEL LICENSE ACT,
SEC. 13, CAL. STAT. 1923, C. 267, AS AMENDED, CAL. STAT. 1935, C. 264;
VEHICLE CODE, SECS. 776, 781, CAL. STAT. 1935, C. 27; CAL. STAT. 1935,
C. 362, SECS. 9(A), 9(D).  SEE INTERSTATE TRANSIT, INC. V. LINDSEY,
SUPRA, 188-190.  APPELLANTS POINT TO NO STATUTE APPROPRIATING ANY PART
OF THE GENERAL FUND OF THE STATE TREASURY FOR HIGHWAY PURPOSES, AND THE
STREET AND HIGHWAYS CODE, SEC. 183, CAL. STAT. 1935, C. 29, PROVIDES:
"WITH THE EXCEPTION OF MONEY AUTHORIZED BY LAW TO BE DEPOSITED IN THE
STATE HIGHWAY GENERAL FUND, ALL MONEY AVAILABLE FOR THE ACQUISITION OF
REAL PROPERTY OR INTEREST THEREIN FOR STATE HIGHWAYS OR FOR
CONSTRUCTION, MAINTENANCE OR IMPROVEMENT OF STATE HIGHWAYS, OR HIGHWAYS
IN STATE PARKS, SHALL BE DEPOSITED IN THE STATE HIGHWAY FUND." 

HENCE WE MUST LOOK TO THE STATUTE ITSELF TO ASCERTAIN THE PURPOSES
FOR WHICH THE PERMIT FEES ARE COLLECTED.  ON THIS POINT IT IS
EXPLICIT.  IT DECLARES (SEC. 6) THAT THEY ARE INTENDED TO REIMBURSE THE
STATE TREASURY FOR THE ADDED EXPENSE OF ADMINISTERING THE CARAVAN ACT
AND POLICING THE CARAVANING TRAFFIC.  THIS NEGATIVES ANY INFERENCE OF
THE PURPOSE OF THE COLLECTION WHICH MIGHT OTHERWISE BE DRAWN FROM THE
STATUTE, AND FROM ITS PROVISION THAT THE PERMIT IS PREREQUISITE TO THE
USE OF THE HIGHWAYS.  COMPARE MORF V. BINGAMAN, SUPRA.  IT IS TRUE THAT
THIS DECLARATION IS NOT AN APPROPRIATION OF THE MONEYS COLLECTED AND IT
DOES NOT FORECLOSE THE USE OF THE FUND FOR HIGHWAY MAINTENANCE, SHOULD
THE STATE ELECT TO DO SO.  BUT UNTIL SUCH APPROPRIATION IS MADE THE
STATUTE ITSELF STATES THE LEGISLATIVE PURPOSE, AND PRECLUDES STATE
OFFICIALS FROM ASSERTING THAT THE FEES ARE COLLECTED FOR ANY OTHER. 

THE BURDEN RESTS ON APPELLEE TO SHOW THAT THE FEE IS EXCESSIVE FOR
THE DECLARED PURPOSE.  HENDRICK V. MARYLAND, SUPRA, 624; INTERSTATE
BUSSES CORP. V. BLODGETT, SUPRA, 250; MORF V. BINGAMAN, SUPRA, 410. 
BUT THE TRIAL COURT HAS FOUND THAT IT IS EXCESSIVE AND THE FINDING IS
AMPLY SUPPORTED BY EVIDENCE.  IN 1934, 9,663 CARS WERE CARAVANED, AND
IN THE FIRST ELEVEN MONTHS OF 1935, 14,000.  THIS SUPPORTS THE
INFERENCE OF THE TRIAL COURT THAT 15,000 CARS ARE BROUGHT INTO THE
STATE, ANNUALLY, FOR SALE UNDER THE CONDITIONS DEFINED IN THE ACT. 
THERE WAS TESTIMONY THAT THE EXPENSE INVOLVED IN ISSUING CARAVANING
PERMITS IS "ABOUT $5.00 PER CAR," ALTHOUGH IT APPEARED THAT THE PERMIT
FEE FOR LOCAL PLEASURE CARS, NUMBERING 1,960,000 WAS $3.00 PER YEAR OF
WHICH ONLY 35% ($1.05) IS DEVOTED TO ADMINISTRATIVE EXPENSES. 

THE CARAVAN ACT BECAME EFFECTIVE SEPTEMBER 15, 1935.  A PERMIT
GRANTED UNDER IT IS CONFINED TO A LIMITED MOVEMENT FROM THE STATE
BOUNDARY TO THE IMMEDIATE POINT OF DESTINATION.  THE UNDISPUTED
EVIDENCE SHOWS THAT PRIOR TO THE PASSAGE OF THE MEASURE TWO NEW
DISTRICT INSPECTORS WERE APPOINTED SOLELY ON ACCOUNT OF CARAVANING, AND
FOURTEEN NEW HIGHWAY PATROLMEN WERE "ASSIGNED," PARTIALLY BECAUSE OF
CARAVANING AND ITS EFFECT ON TRAFFIC.  THE CHIEF OF THE CALIFORNIA
HIGHWAY PATROL, IN SUMMARIZING HIS TESTIMONY, SAID THAT HE HAD PUT ON
"APPROXIMATELY SIX ADDITIONAL MEN OVER THE WHOLE STATE BECAUSE THERE
WERE CARAVANS ON THE ROAD, AND I ANTICIPATE PUTTING ON MORE MEN."  THEY
RECEIVE A MONTHLY SALARY OF $170, WHICH MAY EVENTUALLY BE INCREASED TO
$225.  THE DISTRICT COURT FOUND THAT THE EVIDENCE INDICATED THAT A
TOTAL OF TEN MEN AT A SALARY OF $200 A MONTH, AND AT AN AGGREGATE COST
OF $24,000 A YEAR, WOULD BE ADEQUATE TO POLICE THE TRAFFIC, WHEREAS THE
PERMIT FEES FROM 15,000 CARS WOULD YIELD AN ANNUAL RETURN OF $225,000. 

WE CANNOT SAY THAT THE EVIDENCE DOES NOT SUPPORT THE CONCLUSION OF
THE TRIAL COURT THAT THE COST OF POLICING WOULD BE AMPLY MET BY A
LICENSE FEE OF ONE-THIRD OF THE AMOUNT SO CHARGED.  THE ADMINISTRATIVE
EXPENSE OF ISSUING THE PERMITS APPEARS NOT TO HAVE BEEN INCLUDED, BUT
THE TESTIMONY THAT THAT EXPENSE WAS ABOUT $5.00 PER CAR DOES NOT BRIDGE
THE ARITHMETICAL GAP, AND DOES NOT IMPEACH THE COURT'S CONCLUSION THAT
THE PERMIT FEE BEARS NO REASONABLE RELATION TO THE TOTAL COST OF
REGULATION, TO DEFRAY WHICH IT IS COLLECTED.  IT RIGHTLY HELD THAT THE
LICENSING PROVISIONS OF THE STATUTE IMPOSE AN UNCONSTITUTIONAL BURDEN
ON INTERSTATE COMMERCE. 

ON THIS RECORD WE ARE NOT REQUIRED TO CONSIDER WHETHER THE PROVISIONS
OF SEC. 2 WHICH MAKE IT UNLAWFUL "TO OPERATE THREE OR MORE VEHICLES OR
GROUPS OF VEHICLES IN A CARAVAN UNLESS A SPACE OF AT LEAST ONE HUNDRED
FIFTY FEET SHALL AT ALL TIMES BE MAINTAINED BETWEEN EACH VEHICLE OR
GROUP OF VEHICLES BEING SO CARAVANED" MAY BE ENFORCED IF APPLIED,
INDEPENDENTLY OF THE LICENSING PROVISIONS, IN A STATUTE NON
DISCRIMINATORY IN ITS OPERATION.  AFFIRMED. 
..END :





SWAYNE & HOYT, LTD. V. U.S., 300 U.S. 297 


NO. 494.  ARGUED FEBRUARY 11, 12, 1937.  - DECIDED MARCH 1, 1937.  - 18
F.SUPP.  25, AFFIRMED. 


1.  ACTING UNDER THE SHIPPING ACT AND AN EXECUTIVE ORDER PURPORTING TO
TRANSFER THE FUNCTIONS OF THE SHIPPING BOARD TO THE SECRETARY OF
COMMERCE, THE SECRETARY, AFTER HEARINGS, FOUND THAT RATES FILED BY A
CERTAIN GROUP OF CARRIERS WERE UNDULY PREJUDICIAL TO SHIPPERS AND OTHER
CARRIERS AND ORDERED THEIR CANCELLATION.  HELD THAT THE EXERCISE OF
POWER, IF INITIALLY UNAUTHORIZED, WAS VALIDATED RETROACTIVELY BY ACTS
OF CONGRESS CITED.  ISBRANDTSEN-MOLLER CO. V. UNITED STATES, ANTE, P.
139.  P. 300. 

2.  IN DETERMINING THE VALIDITY OF RETROACTIVE LEGISLATION, A
DISTINCTION IS DRAWN BETWEEN BARE ATTEMPTS TO CREATE LIABILITY FOR
TRANSACTIONS FULLY CONSUMMATED AND CURATIVE STATUTES DESIGNED TO
REMEDY, WITHOUT INJUSTICE, MISTAKES AND DEFECTS IN ADMINISTRATION OF
GOVERNMENT.  P. 302. 

3.  THE WANT OF IMPAIRMENT OF ANY SUBSTANTIAL EQUITY, THE
PRESERVATION OF THE RIGHT TO AN ADMINISTRATIVE HEARING AND JUDICIAL
REVIEW, AND THE FACT THAT THE PROCEEDINGS WERE CONDUCTED BY THE
SECRETARY IN THE NAME OF THE UNITED STATES, DEPRIVE THE VALIDATING
STATUTE OF THE ELEMENTS OF NOVELTY AND SURPRISE WHICH MAY CONDEMN
RETROACTIVE LEGISLATION.  P. 302. 

4.  TARIFFS ALLOWING REDUCED RATES TO SHIPPERS WHO AGREE TO SHIP
EXCLUSIVELY, AND FOR A SPECIFIED PERIOD, BY VESSELS OF THE CARRIERS
OFFERING SUCH RATES, ARE DISCRIMINATORY, AND ARE UNLAWFUL UNDER SEC. 16
OF THE SHIPPING ACT IF THE DISCRIMINATION IS UNDUE OR UNREASONABLE.  P.
303. 

5.  THE SHIPPING ACT, LIKE THE INTERSTATE COMMERCE ACT, SETS UP AN
ADMINISTRATIVE AGENCY, WHOSE DETERMINATIONS OF FACT, ON THE BASIS OF
WHICH ORDERS ARE MADE, WILL NOT BE SET ASIDE IN THE COURTS IF THERE IS
EVIDENCE TO SUPPORT THEM.  WHETHER A DISCRIMINATION IN RATES OR
SERVICES OF A CARRIER IS UNDUE OR UNREASONABLE IS PECULIARLY A QUESTION
COMMITTED TO THE JUDGMENT OF THE ADMINISTRATIVE BODY.  P. 303. 

6.  THE EVIDENCE BEFORE THE SECRETARY OF COMMERCE IN THIS CASE WAS
ENOUGH TO SUPPORT HIS CONCLUSIONS THAT THE CONTRACT RATE SYSTEM HERE
INVOLVED WAS NOT NEEDED TO ASSURE STABILITY OF SERVICE AND THAT IT
TENDED TO GIVE THE PARTICIPATING CARRIERS A MONOPOLY BY EXCLUDING
COMPETITION OF NEW LINES.  P. 305. 

7.  THOUGH THE EVIDENCE MAY SUPPORT A DIFFERENT INFERENCE, THIS COURT
MAY NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE SECRETARY.  P. 307. 

SWAYNE & HOYT, LTD. ET AL. V. UNITED STATES. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT
OF COLUMBIA. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES DISMISSING
THE BILL IN A SUIT BROUGHT BY INTERCOASTAL MARINE CARRIERS TO SET ASIDE
AN ORDER OF THE SECRETARY OF COMMERCE REQUIRING THE CANCELLATION OF
CERTAIN RATES. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

APPELLANTS ARE STEAMSHIP CORPORATIONS ENGAGED IN THE TRANSPORTATION
OF FREIGHT THROUGH THE PANAMA CANAL BETWEEN UNITED STATES PORTS ON THE
GULF OF MEXICO AND ON THE PACIFIC COAST.  THEY CONSTITUTE THE GULF
INTERCOASTAL CONFERENCE, WHICH OPERATES UNDER AN AGREEMENT, APPROVED
MARCH 28, 1934, BY THE UNITED STATES SHIPPING BOARD BUREAU OF THE
DEPARTMENT OF COMMERCE, AS PROVIDED BY SEC. 15 OF THE SHIPPING ACT OF
1916, 39 STAT. 733, 46 U.S.C. SEC. 814.  ON MAY 25, 1933, THE
CONFERENCE, IN CONFORMITY TO THE INTERCOASTAL SHIPPING ACT OF 1932,
SEC. 2, 47 STAT. 1425, 46 U.S.C. SEC. 844, FILED WITH THE UNITED STATES
SHIPPING BOARD BUREAU A NEW TARIFF, EFFECTIVE JUNE 2, 1933, PUBLISHING
CERTAIN RATES FOR THE TRANSPORTATION OF FREIGHT, WESTBOUND FROM COAST
TO COAST. 

THE TARIFF, CONTINUING THE CONTRACT SYSTEM IN USE BY THE CONFERENCE,
PROVIDED FOR "CONTRACT RATES" FOR SPECIFIED COMMODITIES, TO BE ENJOYED
BY SHIPPERS WHO AGREE WITH THE CONFERENCE, BY WRITTEN CONTRACT, TO MAKE
ALL THEIR SHIPMENTS OF THOSE COMMODITIES BY VESSEL OF THE CONFERENCE
MEMBERS FOR A SPECIFIED PERIOD.  THE TARIFF RATES ON THE SAME
COMMODITIES FOR SHIPPERS NOT ENTERING INTO CONTRACTS WERE $2.00 PER TON
HIGHER THAN THE CONTRACT RATES.  IN 1934, THE SECRETARY OF COMMERCE
ORDERED AN INVESTIGATION BY THE SHIPPING BOARD BUREAU OF THE LAWFULNESS
OF THE CONTRACT RATE SYSTEM (SEE SEC. 22 OF THE SHIPPING ACT, 39 STAT.
736, 46 U.S.C. SEC. 821, AND SEC. 3 OF THE INTERCOASTAL SHIPPING ACT OF
1933, 47 STAT. 1426, 46 U.S.C. SEC. 845).  THE ENSUING REPORT CONDEMNED
THE DISCRIMINATION, AND ON JULY 3, 1935, THE SECRETARY ORDERED THE
APPELLANTS TO CEASE CHARGING THE HIGHER RATES TO SHIPPERS WHO HAD NOT
ENTERED INTO CONTRACTS. 

IN SEPTEMBER OF THAT YEAR APPELLANTS FILED NEW RATE SCHEDULES,
EFFECTIVE OCTOBER 3, 1935, WHICH CONTINUED THE CONTRACT RATE SYSTEM. 
THEREUPON THE SECRETARY VACATED HIS ORDER OF JULY 3RD AND MADE AN ORDER
SUSPENDING THE SCHEDULES AND DIRECTING A SECOND HEARING CONCERNING THE
LAWFULNESS OF THE CONTRACT RATE SYSTEM.  ON THIS HEARING NEW EVIDENCE
WAS INTRODUCED, AND RELEVANT PORTIONS OF THE EVIDENCE ADDUCED ON THE
PREVIOUS HEARING WERE SPREAD UPON THE RECORD.  IN A REPORT REVIEWING
THIS RECORD, THE SECRETARY FOUND THAT THE "REAL PURPOSE OF THE
SUSPENDED RATES  ...  IS TO PREVENT SHIPPERS FROM USING THE LINES OF
OTHER CARRIERS AND TO DISCOURAGE ALL OTHERS FROM ATTEMPTING TO ENGAGE
IN INTERCOASTAL TRANSPORTATION FROM AND TO THE GULF."  HE ACCORDINGLY
FOUND THE RATES UNDULY PREJUDICIAL AND ORDERED THEIR CANCELLATION. 

THE PRESENT SUIT WAS BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA, THREE JUDGES SITTING, TO SET ASIDE THE ORDER OF THE
SECRETARY AS WITHOUT HIS STATUTORY AUTHORITY AND BECAUSE NOT SUPPORTED
BY SUBSTANTIAL EVIDENCE.  FROM THE DECREE OF THE DISTRICT COURT
SUSTAINING THE SECRETARY'S ORDER, 18 F.SUPP.  25, THE CASE COMES HERE
ON APPEAL UNDER SEC. 31 OF THE SHIPPING ACT, 39 STAT. 738, 46 U.S.C.
SEC. 830, AND THE ACT OF OCTOBER 22, 1913, 38 STAT. 220, 28 U.S.C.,
SEC. 47.  APPELLANTS HERE, AS IN THE COURT BELOW, HAVE ASSIGNED AS
ERROR THAT THE SECRETARY WAS WITHOUT AUTHORITY TO MAKE THE ORDER UNDER
REVIEW BECAUSE THE EXECUTIVE ORDER OF JUNE 10, 1933, NO. 6166, SEC. 12,
WHICH ABOLISHED THE UNITED STATES SHIPPING BOARD AND TRANSFERRED ITS
FUNCTIONS TO THE DEPARTMENT OF COMMERCE, WAS WITHOUT CONSTITUTIONAL AND
LEGISLATIVE AUTHORITY, AND BECAUSE THE FINDINGS AND ORDER OF THE
SECRETARY WERE WITHOUT SUPPORT IN THE EVIDENCE. 

FIRST.  SINCE THE APPEAL WAS TAKEN, THE CONTENTION THAT THE TRANSFER
TO THE SECRETARY, BY EXECUTIVE ORDER (NO. 6166, SEC. 12), OF POWERS
CONFERRED BY THE SHIPPING ACT ON THE UNITED STATES SHIPPING BOARD, WAS
UNAUTHORIZED BY THE TERMS OF TITLE 4 OF THE LEGISLATIVE APPROPRIATION
ACT OF JUNE 30, 1932, 47 STAT. 413, AS AMENDED, 47 STAT. 1517, HAS BEEN
PUT AT REST BY THE DECISION OF THIS COURT IN ISBRANDTSEN-MOLLER CO. V.
UNITED STATES, ANTE, P. 139.  THERE WE HELD THAT THE FAILURE OF
CONGRESS, IF ANY, TO EXPRESS ITS WILL IN THE EARLIER ACT HAD BEEN
REMEDIED BY VARIOUS LATER ACTS MENTIONING THE EXECUTIVE ORDER, AND
MAKING APPROPRIATIONS TO THE DEPARTMENT OF COMMERCE FOR PAYMENT OF THE
EXPENSES OF CARRYING OUT THE PROVISIONS OF THE SHIPPING ACT,  FN1  AND
BY SEC. 204(A) OF THE MERCHANT MARINE ACT OF JUNE 29, 1936, 49 STAT.
1985, WHICH REFERRED TO FUNCTIONS OF THE FORMER SHIPPING BOARD AS "NOW
VESTED IN THE DEPARTMENT OF COMMERCE PURSUANT TO SEC. 12 OF THE
PRESIDENT'S EXECUTIVE ORDER NO. 6166," AND TRANSFERRED THEM TO THE
NEWLY-CONSTITUTED UNITED STATES MARITIME COMMISSION. 

TO DISPOSE OF FURTHER CONTENTIONS ALSO URGED HERE, THAT CONGRESS WAS
WITHOUT CONSTITUTIONAL POWER TO DELEGATE TO THE PRESIDENT AUTHORITY TO
DETERMINE WHETHER THE TRANSFER SHOULD BE EFFECTED, AND THAT HE DID NOT
EXERCISE IT IN A CONSTITUTIONAL MANNER, THE COURT FOUND IT ENOUGH THAT
THE ORDER OF THE SECRETARY, WHICH THE MARITIME COMMISSION HAD CONTINUED
IN EFFECT, HAD "DETERMINED NO RIGHTS AND PRESCRIBED NO DUTIES" OF THE
CARRIER.  THE RATE ORDER HERE IS OF A DIFFERENT SORT AND WE FACE THE
QUESTION PREVIOUSLY RESERVED.  IT IS UNNECESSARY NOW TO PASS ON THE
EFFICACY OF THE TRANSFER BY EXECUTIVE ORDER, FOR WE ARE OF OPINION THAT
AS CONGRESS ITSELF HAD POWER TO ABOLISH THE SHIPPING BOARD AND TO
REQUIRE ITS FUNCTIONS TO BE PERFORMED BY THE SECRETARY, IT HAD POWER TO
RECOGNIZE AND VALIDATE HIS PERFORMANCE OF THOSE FUNCTIONS EVEN THOUGH
THEIR ATTEMPTED TRANSFER BY EXECUTIVE ORDER WAS INEFFECTUAL. 

IT IS WELL SETTLED THAT CONGRESS MAY, BY ENACTMENT NOT OTHERWISE
INAPPROPRIATE, "RATIFY  ... ACTS WHICH IT MIGHT HAVE AUTHORIZED," SEE
MATTINGLY V. DISTRICT OF COLUMBIA, 97 U.S. 687, 690, AND GIVE THE FORCE
OF LAW TO OFFICIAL ACTION UNAUTHORIZED WHEN TAKEN.  WILSON V. SHAW, 204
U.S. 24, 32; UNITED STATES V. HEINSZEN & CO., 206 U.S. 370, 382;
HAMILTON V. DILLIN, 21 WALL.  73, 96; TIACO V. FORBES, 228 U.S. 549,
556; RAFFERTY V. SMITH, BELL & CO., 257 U.S. 226, 232; CHARLOTTE HARBOR
& NORTHERN RY. V. WELLES, 260 U.S. 8, 11; HODGES V. SNYDER, 261 U.S.
600, 603.  AND WE THINK THAT CONGRESS, IRRESPECTIVE OF ANY DOCTRINE OF
RATIFICATION, HAS, BY THE ENACTMENT OF THE STATUTES MENTIONED, IN
EFFECT CONFIRMED AND APPROVED THE EXERCISE BY THE SECRETARY OF POWERS
ORIGINALLY CONFERRED ON THE SHIPPING BOARD. 

THE MERE FACT THAT THE VALIDATION IS RETROACTIVE IN ITS OPERATION IS
NOT ENOUGH, IN THE CIRCUMSTANCES OF THIS CASE, TO RENDER IT
INEFFECTIVE.  IN GRAHAM & FOSTER V. GOODCELL, 282 U.S. 409, 429, THIS
COURT RECOGNIZED THAT A DISTINCTION MUST BE TAKEN "BETWEEN A BARE
ATTEMPT OF THE LEGISLATURE RETROACTIVELY TO CREATE LIABILITIES FOR
TRANSACTIONS  ...  FULLY CONSUMMATED IN THE PAST  ...  AND THE CASE OF
A CURATIVE STATUTE APTLY DESIGNED TO REMEDY MISTAKES AND DEFECTS IN THE
ADMINISTRATION OF GOVERNMENT WHERE THE REMEDY CAN BE APPLIED WITHOUT
INJUSTICE."  AND SEE HECHT V. MALLEY, 265 U.S. 144, 164.  HERE THE
RETROACTIVE APPLICATION OF THE CURATIVE ACT IMPAIRS NO SUBSTANTIAL
RIGHT OR EQUITY OF APPELLANTS; THEIR RIGHTS TO AN ADMINISTRATIVE
HEARING AND DETERMINATION, AND TO A JUDICIAL REVIEW, HAVE BEEN AS FULLY
PRESERVED AS IF THE ACT HAD BEEN ADOPTED AT THE DATE OF THE EXECUTIVE
ORDER.  THE PROCEEDINGS WERE CONDUCTED BY THE SECRETARY IN THE NAME OF
THE UNITED STATES, CF. UNITED STATES V. HEINSZEN & CO., SUPRA, AT 385,
BY VIRTUE OF THE 1932 ACT AND THE EXECUTIVE ORDER.  THE CONSEQUENCES OF
THE VALIDATING STATUTE ARE FREE OF THE ELEMENTS OF NOVELTY AND SURPRISE
WHICH HAVE LED TO CONDEMNATION, AS UNREASONABLE AND ARBITRARY, OF OTHER
RETROACTIVE LEGISLATION.  SEE MILLIKEN V. UNITED STATES, 283 U.S. 15,
21; UNITED STATES V. HUDSON, 299 U.S. 498.  WE CONCLUDE THAT THE
SECRETARY'S EXERCISE OF THE POWERS CONFERRED ON THE SHIPPING BOARD HAS
BEEN SANCTIONED BY CONGRESS. 

SECOND.  SECTION 16 OF THE SHIPPING ACT DECLARES THAT "IT SHALL BE
UNLAWFUL FOR A COMMON CARRIER BY WATER," SUBJECT TO THE ACT, "TO MAKE
OR GIVE ANY UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY
PARTICULAR PERSON, LOCALITY OR DESCRIPTION OF TRAFFIC IN ANY RESPECT
WHATSOEVER OR TO SUBJECT ANY PARTICULAR PERSON, LOCALITY OR DESCRIPTION
OF TRAFFIC TO ANY UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE IN
ANY RESPECT WHATSOEVER."  FN2  THE DIFFERENTIAL BETWEEN APPELLANTS'
RATES ON COMMODITIES TRANSPORTED UNDER CONTRACT AND THE RATES ON THE
SAME COMMODITIES FOR NON-CONTRACT SHIPPERS WAS PRIMA FACIE
DISCRIMINATORY SINCE THE TWO RATES WERE CHARGED FOR IDENTICAL SERVICES
AND FACILITIES, AND THE NARROW ISSUE PRESENTED TO THE SECRETARY FOR
DECISION WAS WHETHER, IN THE CONDITIONS AFFECTING THE TRAFFIC INVOLVED,
THE DISCRIMINATION WAS UNDUE OR UNREASONABLE. 

AS POINTED OUT BY THIS COURT IN UNITED STATES NAVIGATION CO. V.
CUNARD S.S. CO., 284 U.S. 474, THE PROVISIONS OF THE SHIPPING ACT WHICH
CONFER UPON THE SHIPPING BOARD AUTHORITY OVER RATES AND PRACTICES OF
CARRIERS BY WATER, AND PRESCRIBE THE MODE OF ITS EXERCISE, CLOSELY
PARALLEL THOSE OF THE INTERSTATE COMMERCE ACT ESTABLISHING THE
CORRESPONDING RELATIONS OF THE INTERSTATE COMMERCE COMMISSION TO
CARRIERS BY RAIL.  BOTH HAVE SET UP AN ADMINISTRATIVE AGENCY TO WHOSE
INFORMED JUDGMENT AND DISCRETION CONGRESS HAS COMMITTED THE
DETERMINATION OF QUESTIONS OF FACT, ON THE BASIS OF WHICH IT IS
AUTHORIZED TO MAKE ADMINISTRATIVE ORDERS. 

SUCH DETERMINATIONS WILL NOT BE SET ASIDE BY COURTS IF THERE IS
EVIDENCE TO SUPPORT THEM.  EVEN THOUGH, UPON A CONSIDERATION OF ALL THE
EVIDENCE, A COURT MIGHT REACH A DIFFERENT CONCLUSION, IT IS NOT
AUTHORIZED TO SUBSTITUTE ITS OWN FOR THE ADMINISTRATIVE JUDGMENT.  SEE
MANUFACTURERS RY. CO. V. UNITED STATES, 246 U.S. 457, 481; PENNSYLVANIA
CO. V. UNITED STATES, 236 U.S. 351; CF. UNITED STATES NAVIGATION CO. V.
CUNARD S.S. CO., SUPRA, 484.  WHETHER A DISCRIMINATION IN RATES OR
SERVICES OF A CARRIER IS UNDUE OR UNREASONABLE HAS ALWAYS BEEN REGARDED
AS PECULIARLY A QUESTION COMMITTED TO THE JUDGMENT OF THE
ADMINISTRATIVE BODY, BASED UPON AN APPRECIATION OF ALL THE FACTS AND
CIRCUMSTANCES AFFECTING THE TRAFFIC.  MANUFACTURERS RY. CO. V. UNITED
STATES, SUPRA; PENNSYLVANIA CO. V. UNITED STATES, SUPRA, 361; SEABOARD
AIR LINE RY. CO. V. UNITED STATES, 254 U.S. 57, 62; PENNSYLVANIA R. CO.
V. INTERNATIONAL COAL CO., 230 U.S. 184, 196; NASHVILLE, C. & ST. L.
RY. V. TENNESSEE, 262 U.S. 318, 322. 

IN DETERMINING WHETHER THE PRESENT DISCRIMINATION WAS UNDUE OR
UNREASONABLE THE SECRETARY WAS CALLED UPON TO ASCERTAIN WHETHER ITS
EFFECT WAS TO EXCLUDE OTHER CARRIERS FROM THE TRAFFIC, AND IF SO,
WHETHER, AS APPELLANTS URGE, IT OPERATED TO SECURE STABILITY OF RATES
WITH CONSEQUENT STABILITY OF SERVICE, AND, SO FAR AS EITHER EFFECT WAS
FOUND TO ENSUE, TO WEIGH THE DISADVANTAGES OF THE FORMER AGAINST THE
ADVANTAGES OF THE LATTER.  THIS WAS CLEARLY RECOGNIZED IN THE REPORT
UPON WHICH THE PRESENT ORDER IS BASED.  IT STATES THAT THE DANGER OF
CUT-THROAT COMPETITION WAS LESSENED BY SEC. 3 OF THE INTERCOASTAL
SHIPPING ACT OF 1933, AND THAT THE CONTRACT SYSTEM TENDS TO CREATE A
MONOPOLY.  IN VIEW OF THE ASSURANCE OF REASONABLE RATE STABILITY
AFFORDED BY THE ACT OF 1933, THE SECRETARY CONCLUDED THAT THIS WAS THE
REAL PURPOSE OF THE CONTRACT RATE. 

BEFORE THE ENACTMENT OF THE SHIPPING ACT IN 1916, THERE WAS NO
CONGRESSIONAL REGULATION OF RATES AND PRACTICES OF WATER CARRIERS.  BY
SEC. 16 OF THE ACT, THE CARRIERS WERE REQUIRED TO FILE ONLY THEIR
MAXIMUM RATES, WHICH LEFT THEM FREE TO INDULGE IN RATE WARS.  UNDER
SECS. 2 AND 3 OF THE INTERCOASTAL SHIPPING ACT OF 1933, THEY ARE
REQUIRED TO FILE SCHEDULES SPECIFYING THEIR RATES, WHICH ARE SUBJECT TO
CHANGE ONLY ON THIRTY DAYS' NOTICE, AND TO EXAMINATION BY THE BOARD AS
TO THEIR LAWFULNESS, WITH POWER IN IT TO SUSPEND THE RATE PENDING
INVESTIGATION.  WE CANNOT SAY THAT CUT-RATES FOR "TRAMP" AND
"DISTRESSED" TONNAGE, WHICH, ACCORDING TO APPELLANTS' WITNESSES, ARE
THE PRINCIPAL MENACE TO RATE STABILITY, WOULD NOT BE SUBSTANTIALLY
DETERRED BY THESE REQUIREMENTS.  THE CHAIRMAN OF THE CONFERENCE
ADMITTED THAT THE 1933 STATUTE "HAS TO A CERTAIN EXTENT ELIMINATED THE
CONDITION NECESSITATING THE CONTRACT RATE SYSTEM."  IN ADDITION MAY BE
MENTIONED THE TESTIMONY OF SHIPPERS WHO FAVORED THE CONTRACT RATE
SYSTEM, BUT ADMITTED THAT THEY HAD HAD NO DIFFICULTY WITH THE STABILITY
OF THE SERVICE IN THEIR SHIPMENTS FROM ATLANTIC PORTS, WHERE THE
CONFERENCES HAVE NOT ADOPTED A CONTRACT SYSTEM.  WE THINK THERE WAS
EVIDENCE FROM WHICH THE SECRETARY COULD REASONABLY CONCLUDE THAT THERE
WAS LITTLE NEED FOR A CONTRACT RATE SYSTEM TO ASSURE STABILITY OF
SERVICE. 

ON THE OTHER HAND, THERE WAS SUBSTANTIAL EVIDENCE FROM WHICH THE
SECRETARY COULD INFER THAT THE CONTRACT RATE SYSTEM WOULD TEND TO GIVE
TO THE CONFERENCE CARRIERS A MONOPOLY BY EXCLUDING COMPETITION FROM NEW
LINES.  THE SECRETARY OF THE CONFERENCE TESTIFIED THAT APPROXIMATELY
64% OF THE WEST-BOUND PORT TO PORT TONNAGE MOVED UNDER THE CONTRACT
RATE.  REPRESENTATIVES OF LINES NOT MEMBERS OF THE CONFERENCE STATED
THAT THE TONNAGE LEFT WAS NOT ENOUGH TO MAKE THE OPERATION OF A NEW
LINE PROFITABLE, AND THAT THE CONTRACT SYSTEM PRECLUDED THE EMPLOYMENT
OF THEIR IDLE STEAMERS IN THE GULF TRADE.  THE CONFERENCE CHAIRMAN
ADMITTED THAT IT WOULD "NOT BE EASY" FOR A NEW LINE TO ENTER THE GULF
SERVICE BECAUSE IT "IS NOW ADEQUATELY TONNAGED," AND THAT THE CONTRACT
SYSTEM RESTRICTED THE AMOUNT OF AVAILABLE TONNAGE.  HE SUGGESTED THAT A
COMPETING LINE MIGHT BE ABLE TO GET TONNAGE IF IT OFFERED AS MUCH AS A
10% RATE REDUCTION, BUT ADMITTED THAT IT PROBABLY COULD NOT OPERATE
SUCCESSFULLY AT SUCH A RATE. 

IT ALSO APPEARED, CONTRARY TO THE ASSERTION OF APPELLANTS, THAT
COMPETING LINES WERE NOT FREE TO ENTER THE CONFERENCE.  BY THE
PROVISIONS OF THE CONFERENCE AGREEMENT, IT IS PREREQUISITE TO ADMISSION
THAT THE APPLICANT SHALL BE ENGAGED IN THE GENERAL CARGO TRADE FROM THE
GULF TO THE PACIFIC.  THERE WAS TESTIMONY THAT THE CONFERENCE HAD
DENIED ADMISSION TO A LINE BECAUSE IT DID NOT HAVE AN ESTABLISHED
SERVICE IN THE GULF, ALTHOUGH AT THE TIME WHEN IT APPLIED FOR
MEMBERSHIP IT HAD IDLE VESSELS AND "OFFICES AND FACILITIES" FOR
CONDUCTING THE BUSINESS.  IT IS AN ADMISSIBLE INFERENCE FROM THE
EVIDENCE THAT A NEW LINE, TO SECURE ADMISSION TO THE CONFERENCE, MUST
EITHER BE ABLE SUCCESSFULLY TO COMPETE WITH THE CONFERENCE LINES AT THE
START, NOTWITHSTANDING THE RESTRICTION OF THE CONTRACT RATE, OR MUST
SUBJECT ITSELF TO A LOSS BEFORE IT CAN QUALIFY FOR ADMISSION. 

THERE WAS THUS EVIDENCE BEFORE THE SECRETARY WHICH TENDED TO SHOW
THAT THE CONTRACT RATE SYSTEM, BY REASON OF THE CONDITIONS PREVAILING
IN THE TRAFFIC, HAD ESTABLISHED A PRACTICAL MONOPOLY OF CARGOES MOVING
FROM THE GULF PORTS TO PORTS ON THE PACIFIC COAST, FROM WHICH COMPETING
CARRIERS WERE EXCLUDED BY THE PROVISIONS OF THE CONFERENCE AGREEMENT,
EXCEPT ON TERMS WHICH WERE PRACTICALLY PROHIBITIVE, AND THAT, SINCE THE
ADOPTION OF THE INTERCOASTAL SHIPPING ACT OF 1933, STABILITY OF
SERVICE, WHICH APPELLANTS URGE AS JUSTIFICATION FOR THE SYSTEM, COULD
BE SECURED WITHOUT A CONTRACT RATE.  AS THE SECRETARY HAS INTERPRETED
THE EVIDENCE, THE OPERATION OF THE CONTRACT SYSTEM, IN THE
CIRCUMSTANCES OF THIS CASE, DOES NOT DIFFER SUBSTANTIALLY FROM THAT OF
"DEFERRED REBATES" OUTLAWED IN BOTH FOREIGN AND COASTWISE SHIPPING BY
SEC. 14 OF THE SHIPPING ACT, 39 STAT. 733, 46 U.S.C. SEC. 812.  FN3 

EVEN THOUGH, AS APPELLANTS SEEM TO ARGUE, THE EVIDENCE MAY LEND
ITSELF TO SUPPORT A DIFFERENT INFERENCE, WE ARE WITHOUT AUTHORITY TO
SUBSTITUTE OUR JUDGMENT FOR THAT OF THE SECRETARY THAT THE
DISCRIMINATION WAS UNREASONABLE.  AFFIRMED. 

FN1  ACT OF APRIL 7, 1934, 48 STAT. 529, 566; ACT OF MARCH 22, 1935,
49 STAT. 67, 99; ACT OF MAY 15, 1936, 49 STAT. 1309, 1345. 

FN2  SEE ALSO SHIPPING ACT, SEC. 15, 39 STAT. 733, 46 U.S.C. SEC.
814(THE SHIPPING BOARD MAY CANCEL OR MODIFY ANY AGREEMENT BETWEEN A
CARRIER AND ANOTHER CARRIER OR PERSON SUBJECT TO THE ACT, WHICH IT
FINDS TO BE UNJUSTLY DISCRIMINATORY); SEC. 17, 39 STAT. 734, 46 U.S.C.
SEC. 816(THE BOARD MAY ORDER DISCONTINUANCE OF DISCRIMINATORY RATES
CHARGED BY CARRIERS IN FOREIGN COMMERCE); SEC. 18, 39 STAT. 735, 46
U.S.C. SEC. 817(WHENEVER THE BOARD FINDS THAT ANY CLASSIFICATION IS
UNJUST OR UNREASONABLE, IT MAY ORDER A JUST AND REASONABLE ONE
ENFORCED). 

FN3  SECTION 14 OF THE SHIPPING ACT DEFINES THE TERM "DEFERRED
REBATE" AS "A RETURN OF ANY PORTION OF THE FREIGHT MONEY BY A CARRIER
TO ANY SHIPPER AS A CONSIDERATION FOR THE GIVING OF ALL OR ANY PORTION
OF HIS SHIPMENTS TO THE SAME OR ANY OTHER CARRIER, OR FOR ANY OTHER
PURPOSE, THE PAYMENT OF WHICH IS DEFERRED BEYOND THE COMPLETION OF THE
SERVICE FOR WHICH IT IS PAID, AND IS MADE ONLY IF, DURING BOTH THE
PERIOD FOR WHICH COMPUTED AND THE PERIOD OF DEFERMENT, THE SHIPPER HAS
COMPLIED WITH THE TERMS OF THE REBATE AGREEMENT OR ARRANGEMENT." 

THE REPORT OF THE HOUSE COMMITTEE ON MERCHANT MARINE & FISHERIES,
H.R. DOC. 805, 63RD CONG., 2D SESS. (1914), RECOMMENDED (P. 307) THE
PROHIBITION OF DEFERRED REBATES, ADOPTED IN SEC. 14 OF THE SHIPPING
ACT, BECAUSE IT OPERATED TO TIE SHIPPERS TO A GROUP OF LINES FOR
SUCCESSIVE PERIODS, AND BECAUSE THE SYSTEM "IS UNNECESSARY TO SECURE
EXCELLENCE AND REGULARITY OF SERVICE, A CONSIDERABLE NUMBER OF
CONFERENCES BEING OPERATED TODAY WITHOUT THIS FEATURE."  SEE, E.G., PP.
103-105, 200.  THE COMMITTEE RECOGNIZED THAT THE EXCLUSIVE CONTRACT
SYSTEM DOES NOT NECESSARILY TIE UP THE SHIPPER AS COMPLETELY AS
"DEFERRED REBATES," SINCE IT DOES NOT PLACE HIM IN "CONTINUAL
DEPENDENCE" ON THE CARRIER BY FORCING HIS EXCLUSIVE PATRONAGE FOR ONE
CONTRACT PERIOD UNDER THREATS OF FORFEIT OF DIFFERENTIALS ACCUMULATED
DURING A PREVIOUS CONTRACT PERIOD.  ACCORDINGLY THE COMMITTEE DID NOT
CONDEMN THE CONTRACT SYSTEM COMPLETELY.  CF. W.T. RAWLEIGH CO. V.
STOOMVAART, 1 U.S.S.B. 285.  THE POLICY OF THE STATUTE MAY PROPERLY BE
APPLIED WHERE, AS IN THE CIRCUMSTANCES OF THIS CASE, THE CONTRACT
SYSTEM MUST BE TAKEN AS ACTUALLY OPERATING TO EFFECT A MONOPOLY.  CF.
EDEN MINING CO. V. BLUEFIELDS FRUIT & S.S. CO., 1 U.S.S.B. 41. 

MR. JUSTICE SUTHERLAND DISSENTS. 
..END :







N.Y. EX REL. COHN V. GRAVES, 300 U.S. 308 


NO. 404.  ARGUED FEBRUARY 3, 1937.  - DECIDED MARCH 1, 1937.  - 271 N.Y.
353 - 3 N.E.(2D) 508, AFFIRMED. 


1.  A STATE MAY TAX HER CITIZEN UPON THE INCOME HE RECEIVES BY WAY OF
RENTS FROM LANDS SITUATE IN ANOTHER STATE AND BY WAY OF INTEREST ON
BONDS SECURED BY MORTGAGE ON LANDS SITUATE IN ANOTHER STATE.  PP. 312,
316. 

2.  THE RECEIPT OF INCOME BY A RESIDENT IS A TAXABLE EVENT.  P. 312. 

3.  DOMICIL ITSELF AFFORDS A BASIS FOR SUCH TAXATION.  P. 313. 

4.  ENJOYMENT OF THE PRIVILEGES OF RESIDENCE IN THE STATE AND THE
ATTENDANT RIGHT TO INVOKE THE PROTECTION OF ITS LAWS ARE INSEPARABLE
FROM RESPONSIBILITY FOR SHARING THE COSTS OF GOVERNMENT.  ID. 

5.  NEITHER THE PRIVILEGE NOR THE BURDEN IS AFFECTED BY THE CHARACTER
OF THE SOURCE FROM WHICH THE INCOME IS DERIVED.  FOR THAT REASON INCOME
IS NOT NECESSARILY CLOTHED WITH THE TAX IMMUNITY ENJOYED BY ITS
SOURCE.  ID. 

6.  A TAX ON THE INCOME FROM LAND IS NOT A TAX ON THE LAND (POLLOCK
V. FARMERS' LOAN & TRUST CO., 157 U.S. 429, DISTINGUISHED), AND
TAXATION OF BOTH, BY THE SAME OR DIFFERENT STATES, IS NOT DOUBLE
TAXATION.  P. 314. 

7. IN REVIEWING THE JUDGMENT OF A STATE COURT, THIS COURT WILL NOT
PASS UPON ANY FEDERAL QUESTION NOT SHOWN BY THE RECORD TO HAVE BEEN
RAISED IN THE STATE COURT OR CONSIDERED THERE, ALTHOUGH IT BE ONE
ARISING UNDER THE SAME CLAUSE IN THE CONSTITUTION WITH RESPECT TO WHICH
OTHER QUESTIONS ARE PROPERLY PRESENTED.  P. 317. 

NEW YORK EX REL. COHN V. GRAVES ET AL. 

APPEAL FROM THE SUPREME COURT OF NEW YORK. 

APPEAL FROM A JUDGMENT WHICH REVERSED A JUDGMENT FAVORABLE TO THE
PRESENT APPELLANT, IN A PROCEEDING TO REVIEW A DETERMINATION OF THE
STATE TAX COMMISSION OF NEW YORK AND THUS SECURE A REFUND OF MONEY
ALLEGED TO HAVE BEEN UNLAWFULLY EXACTED AS STATE INCOME TAXES. 

NO STATE MAY TAX LANDS LYING IN ANOTHER STATE.  HOYT V.
COMMISSIONERS, 23 N.Y. 224, 226; SENIOR V. BRADEN, 295 U.S. 422; SAFE
DEPOSIT & TRUST CO. V. VIRGINIA, 280 U.S. 83; FRICK V. PENNSYLVANIA,
268 U.S. 473; FARMERS' LOAN & TRUST CO. V. MINNESOTA, 280 U.S. 204;
BALDWIN V. MISSOURI, 281 U.S. 586. 

A TAX UPON THE RENTS FROM REAL ESTATE IS IN SUBSTANCE AND EFFECT A
TAX UPON THE REAL ESTATE.  POLLOCK V. FARMERS' LOAN & TRUST CO., 157
U.S. 429, 580, 581; 158 ID. 601, 630; NORTHWESTERN MUTUAL LIFE INS. CO.
V. WISCONSIN, 275 U.S. 136, 140; NATIONAL LIFE INS. CO. V. UNITED
STATES, 277 U.S. 508, 521; OPINION OF THE JUSTICES, 84 N.H. 559, 573,
574; OPINION OF THE JUSTICES, 220 MASS. 613, 624.  SEE ALSO HARRISON V.
COMMISSIONER OF CORPORATIONS, 272 MASS. 422; HART V. TAX COMMISSIONER,
240 MASS. 37; PIERSON V. LYNCH, 237 APP. DIV. 765, AFF'D, 263 N.Y.
533. 

THE GENERAL RULE HAS ALWAYS BEEN, IN THE LANGUAGE OF COKE:  "BUT IF A
MAN SEISED OF LANDS IN FEE BY HIS DEED GRANTETH TO ANOTHER THE PROFIT
OF THOSE LANDS, AND TO HAVE AND TO HOLD TO HIM AND HIS HEIRS, AND
MAKETH LIVERY SECUNDUM FORMAN CHARTAE, THE WHOLE LAND ITSELFE DOTH
PASSE; FOR WHAT IS THE LAND BUT THE PROFITS THEREOF;..."  CO. LIT. 
4B.  SEE ALSO KNOWLTON V. MOORE, 178 U.S. 41, 81; MCCOACH V. MINEHILL &
S.H.R. CO., 228 U.S. 295, 306; FLINT V. STONE TRACY CO., 220 U.S. 107;
ALEXANDER HAMILTON, HAMILTON'S WORKS, PUTNAM'S ED., VOL. 3, P. 34;
JOSEPH H. CHOATE (POLLOCK V. FARMERS' LOAN & TRUST CO., 157 U.S. AT P.
540); METCALF V. MITCHELL, 269 U.S. 514, 522; GILLESPIE V. OKLAHOMA,
257 U.S. 501; BURNET V. CORONADO OIL & GAS CO., 285 U.S. 393. 

FOR THE STATE OF DOMICILE TO TAX THE INCOME FROM PROPERTY, INTANGIBLE
AS WELL AS TANGIBLE, WHICH IS PHYSICALLY LOCATED IN OR HAS ACQUIRED A
BUSINESS SITUS IN ANOTHER STATE, WOULD VIOLATE THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT.  SEE WHEELING STEEL CORP V. FOX, 298 U.S.
193, AND CASES SUPRA. 

LAWRENCE V. STATE TAX COMM'N, 286 U.S. 276, IS NOT IN HARMONY WITH
THE RECENT DECISIONS OF THIS COURT AND PARTICULARLY SENIOR V. BRADEN,
SUPRA, AND WHEELING STEEL CORP. V. FOX, SUPRA.  IT SHOULD BE LIMITED TO
ITS FACTS. 

MULTIPLE STATE TAXATION CONTRAVENES DUE PROCESS.  TAX CHAOS WILL
RESULT IF THE OTHER STATES FOLLOW THE OVERREACHING EXAMPLE OF NEW
YORK. 

INHERITANCE AND PROPERTY TAXES ARE BOTH DEPENDENT UPON JURISDICTION
OF THE PROPERTY.  SEE FRICK V. PENNSYLVANIA, 268 U.S. 473; FIRST
NATIONAL BANK V. MAINE, 284 U.S. 312; CITY BANK FARMERS TRUST CO. V.
SCHNADER, 293 U.S. 112.  IN RECENT YEARS, AND PARTICULARLY SINCE 1930,
THIS COURT IN UNMISTAKABLE TERMS HAS REPEATEDLY DECLARED AGAINST DOUBLE
AND MULTIPLE STATE TAXATION. 

THE NEW YORK STATUTE, PASSED MAY 16, 1935, IN SO FAR AS IT ATTEMPTS
TO LEVY A RETROACTIVE TAX ON INCOME RECEIVED PRIOR TO 1934, WAS
ARBITRARY AND UNCONSTITUTIONAL. 

DISTINGUISHING:  LAWRENCE V. STATE TAX COMM'N, 286 U.S. 276; MAGUIRE
V. TREFRY, 253 U.S. 12; COOK V. TAIT, 265 U.S. 47; CENTRAL UNION TRUST
CO. V. WENDELL, 199 APP. DIV. 131; VAN RENSSELAER V. DENNISON, 8 BARB. 
23; AND KIRTLAND V. HOTCHKISS, 100 U.S. 491. 

MR. JUSTICE STONE DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION WHETHER A STATE MAY CONSTITUTIONALLY
TAX A RESIDENT UPON INCOME RECEIVED FROM RENTS OF LAND LOCATED WITHOUT
THE STATE AND FROM INTEREST ON BONDS PHYSICALLY WITHOUT THE STATE AND
SECURED BY MORTGAGES UPON LANDS SIMILARLY SITUATED. 

627), IMPOSES A TAX UPON THE "ENTIRE NET INCOME" OF RESIDENTS OF THE
STATE.  BY SEC. 359 GROSS INCOME IS DEFINED AS INCLUDING INTEREST AND
RENT.  THE SAME SECTION, AS AMENDED BY N.Y. LAWS 1935, C. 933,
ENUMERATES AMONG THE ITEMS OF TAXABLE INCOME "RENT (INCLUDING RENT
DERIVED FROM REAL PROPERTY SITUATED OUTSIDE THE STATE)  ...  IT BEING
INTENDED TO INCLUDE ALL THE FOREGOING ITEMS WITHOUT REGARD TO THE
SOURCE THEREOF, LOCATION OF THE PROPERTY INVOLVED, OR ANY OTHER FACTOR
EXCEPT ONLY A CASE WHERE THE INCLUSION THEREOF WOULD BE VIOLATIVE OF
CONSTITUTIONAL RESTRICTIONS." 

APPELLANT, A RESIDENT OF NEW YORK, BROUGHT THE PRESENT CERTIORARI
PROCEEDING IN THE COURTS OF NEW YORK TO REVIEW A DETERMINATION OF THE
STATE TAX COMMISSION, APPELLEES, DENYING HER APPLICATION FOR A REFUND
OF STATE INCOME TAXES ASSESSED AND PAID FOR THE YEARS 1931 AND 1932, SO
FAR AS THE TAXES WERE ATTRIBUTABLE TO RENTS RECEIVED BY APPELLANT FROM
NEW JERSEY LAND, AND INTEREST PAID ON BONDS SECURED BY MORTGAGED REAL
ESTATE IN NEW JERSEY, WHERE THE BONDS AND MORTGAGES WERE PHYSICALLY
LOCATED.  A GROUND FOR RECOVERY OF THE TAX ASSIGNED BY APPELLANT'S
PETITION WAS THAT THE TAX WAS IN SUBSTANCE AND EFFECT A TAX ON REAL
ESTATE AND TANGIBLE PROPERTY LOCATED WITHOUT THE STATE, IN VIOLATION OF
THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. 
JUDGMENT FOR APPELLANT (SEE 246 APP. DIV. 335; 286 N.Y.S. 485), WAS
REVERSED BY THE NEW YORK COURT OF APPEALS, 271 N.Y. 353; 3 N.E.(2D)
508.  THE CASE COMES HERE ON APPEAL UNDER SEC. 237(A) OF THE JUDICIAL
CODE. 

THE STIPULATION OF FACTS ON WHICH THE CASE WAS TRIED IN THE STATE
COURT DOES NOT INDICATE THAT APPELLANT'S INCOME HAS BEEN TAXED BY NEW
JERSEY, AND IT DOES NOT DEFINE THE PRECISE NATURE OF HER INTEREST IN
THE PROPERTIES PRODUCING THE INCOME.  IT SETS OUT THAT APPELLANT'S
HUSBAND DIED TESTATE, HIS WILL DULY PROBATED IN NEW JERSEY "DEVISING
AND BEQUEATHING TO SAID TAXPAYER THE ENTIRE NET INCOME FROM HIS ESTATE
FOR AND DURING HER WIDOWHOOD," AND THAT THE TAXED INCOME INCLUDED
"RENTS FROM TESTATOR'S REAL ESTATE" AND "INTEREST FROM TESTATOR'S REAL
ESTATE MORTGAGES," ALL LOCATED IN NEW JERSEY.  THE TERMS OF THE WILL
AND THE STATUS OF THE ESTATE DURING THE TAX YEARS DO NOT OTHERWISE
APPEAR.  THERE IS NOTHING TO SHOW THAT THE INCOME-PRODUCING PROPERTIES
WERE IN THOSE YEARS HELD UPON AN ACTIVE TRUST, OR THAT APPELLANT DID
NOT RECEIVE THE INCOME AS LIFE TENANT OF THE LEGAL INTEREST.  SEE
PALETZ V. CAMDEN SAFE DEPOSIT & TRUST CO., 109 N.J. EQ. 344; 157 ATL.
456; CF. PASSMAN V. GUARANTEE TRUST & SAFE DEPOSIT CO., 57 N.J. EQ.
273; 41 ATL. 953; WESTFIELD TRUST CO. V. BEEKMAN, 97 N.J. EQ. 140; 128
ATL. 791.  ANY UNCERTAINTY ARISING FROM THE AMBIGUITY OF THE
STIPULATION, IF IT HAS ANY PRESENT SIGNIFICANCE, IS PUT AT REST BY THE
CONCESSION OF APPELLANT IN BRIEF, AND IN OPEN COURT ON THE ARGUMENT,
THAT SHE IS THE OWNER OF A LIFE ESTATE OR INTEREST IN THE PROPERTIES,
AND THAT SHE RECEIVED, AS A PART OF HER INCOME IN THE TAX YEARS, THE
RENTS AND INTEREST WHICH HAVE BEEN COLLECTED BY THE EXECUTORS ACTING,
NOT IN THEIR CAPACITY AS EXECUTORS, BUT AS HER AGENTS FOR AN ANNUAL
COMPENSATION. 

IN ANY CASE WE MAY ASSUME, FOR PRESENT PURPOSES, THAT NEW YORK MAY
NOT LEVY A PROPERTY TAX UPON APPELLANT'S INTEREST, WHETHER IT BE LEGAL
OR EQUITABLE, SEE SENIOR V. BRADEN, 295 U.S. 422; SAFE DEPOSIT & TRUST
CO. V. VIRGINIA, 280 U.S. 83.  WE ACCORDINGLY LIMIT OUR REVIEW TO THE
QUESTION CONSIDERED AND DECIDED BY THE STATE COURT, WHETHER THERE IS
ANYTHING IN THE FOURTEENTH AMENDMENT WHICH PRECLUDES THE STATE OF NEW
YORK FROM TAXING THE INCOME MERELY BECAUSE IT IS DERIVED FROM SOURCES,
WHICH, TO THE EXTENT INDICATED, ARE LOCATED OUTSIDE THE STATE. 

INCOME FROM RENTS.  THAT THE RECEIPT OF INCOME BY A RESIDENT OF THE
TERRITORY OF A TAXING SOVEREIGNTY IS A TAXABLE EVENT IS UNIVERSALLY
RECOGNIZED.  DOMICIL ITSELF AFFORDS A BASIS FOR SUCH TAXATION. 
ENJOYMENT OF THE PRIVILEGES OF RESIDENCE IN THE STATE AND THE ATTENDANT
RIGHT TO INVOKE THE PROTECTION OF ITS LAWS ARE INSEPARABLE FROM
RESPONSIBILITY FOR SHARING THE COSTS OF GOVERNMENT.  "TAXES ARE WHAT WE
PAY FOR CIVILIZED SOCIETY  ..."  SEE COMPANIA GENERAL DE TABACOS V.
COLLECTOR, 275 U.S. 87, 100.  A TAX MEASURED BY THE NET INCOME OF
RESIDENTS IS AN EQUITABLE METHOD OF DISTRIBUTING THE BURDENS OF
GOVERNMENT AMONG THOSE WHO ARE PRIVILEGED TO ENJOY ITS BENEFITS.  THE
TAX, WHICH IS APPORTIONED TO THE ABILITY OF THE TAXPAYER TO PAY IT, IS
FOUNDED UPON THE PROTECTION AFFORDED BY THE STATE TO THE RECIPIENT OF
THE INCOME IN HIS PERSON, IN HIS RIGHT TO RECEIVE THE INCOME AND IN HIS
ENJOYMENT OF IT WHEN RECEIVED.  THESE ARE RIGHTS AND PRIVILEGES WHICH
ATTACH TO DOMICIL WITHIN THE STATE.  TO THEM AND TO THE EQUITABLE
DISTRIBUTION OF THE TAX BURDEN, THE ECONOMIC ADVANTAGE REALIZED BY THE
RECEIPT OF INCOME AND REPRESENTED BY THE POWER TO CONTROL IT, BEARS A
DIRECT RELATIONSHIP.  SEE LAWRENCE V. STATE TAX COMM'N, 286 U.S. 276;
MAGUIRE V. TREFRY, 253 U.S. 12, 14; VIRGINIA V. IMPERIAL COAL SALES
CO., 293 U.S. 15, 19; COMPARE SHAFFER V. CARTER, 252 U.S. 37, 50. 

NEITHER THE PRIVILEGE NOR THE BURDEN IS AFFECTED BY THE CHARACTER OF
THE SOURCE FROM WHICH THE INCOME IS DERIVED.  FOR THAT REASON INCOME IS
NOT NECESSARILY CLOTHED WITH THE TAX IMMUNITY ENJOYED BY ITS SOURCE.  A
STATE MAY TAX ITS RESIDENTS UPON NET INCOME FROM A BUSINESS WHOSE
PHYSICAL ASSETS, LOCATED WHOLLY WITHOUT THE STATE, ARE BEYOND ITS
TAXING POWER, LAWRENCE V. STATE TAX COMM'N, SUPRA; SEE SCHAFFER V.
CARTER, SUPRA, AT 50.  IT MAY TAX NET INCOME FROM BONDS HELD IN TRUST
AND ADMINISTERED IN ANOTHER STATE, MAGUIRE V. TREFRY, SUPRA, ALTHOUGH
THE TAXPAYER'S EQUITABLE INTEREST MAY NOT BE SUBJECTED TO THE TAX, SAFE
DEPOSIT & TRUST CO. V. VIRGINIA, SUPRA. IT MAY TAX NET INCOME FROM
OPERATIONS IN INTERSTATE COMMERCE, ALTHOUGH A TAX ON THE COMMERCE IS
FORBIDDEN, UNITED STATES GLUE CO. V. OAK CREEK, 247 U.S. 321; SHAFFER
V. CARTER, SUPRA.  CONGRESS MAY LAY A TAX ON NET INCOME DERIVED FROM
THE BUSINESS OF EXPORTING MERCHANDISE IN FOREIGN COMMERCE, ALTHOUGH A
TAX UPON ARTICLES EXPORTED IS PROHIBITED BY CONSTITUTIONAL PROVISION
(ART. I, SEC. 9, CL. 5).  PECK & CO. V. LOWE, 247 U.S. 165; BARCLAY &
CO. V. EDWARDS, 267 U.S. 442, 447. 

NEITHER ANALYSIS OF THE TWO TYPES OF TAXES, NOR CONSIDERATION OF THE
BASES UPON WHICH THE POWER TO IMPOSE, THEM RESTS, SUPPORTS THE
CONTENTION THAT A TAX ON INCOME IS A TAX ON THE LAND WHICH PRODUCES IT.
THE INCIDENCE OF A TAX ON INCOME DIFFERS FROM THAT OF A TAX ON
PROPERTY.  NEITHER TAX IS DEPENDENT UPON THE POSSESSION BY THE TAXPAYER
OF THE SUBJECT OF THE OTHER.  HIS INCOME MAY BE TAXED, ALTHOUGH HE OWNS
NO PROPERTY, AND HIS PROPERTY MAY BE TAXED ALTHOUGH IT PRODUCES NO
INCOME.  THE TWO TAXES ARE MEASURED BY DIFFERENT STANDARDS, THE ONE BY
THE AMOUNT OF INCOME RECEIVED OVER A PERIOD OF TIME, THE OTHER BY THE
VALUE OF THE PROPERTY AT A PARTICULAR DATE.  INCOME IS TAXED BUT ONCE;
THE SAME PROPERTY MAY BE TAXED RECURRENTLY.  THE TAX ON EACH IS
PREDICATED UPON DIFFERENT GOVERNMENTAL BENEFITS; THE PROTECTION OFFERED
TO THE PROPERTY IN ONE STATE DOES NOT EXTEND TO THE RECEIPT AND
ENJOYMENT OF INCOME FROM IT IN ANOTHER. 

IT WOULD BE PRESSING THE PROTECTION WHICH THE DUE PROCESS CLAUSE
THROWS AROUND THE TAXPAYER TOO FAR TO SAY THAT BECAUSE A STATE IS
PROHIBITED FROM TAXING LAND WHICH IT NEITHER PROTECTS NOR CONTROLS, IT
IS LIKEWISE PROHIBITED FROM TAXING THE RECEIPT AND COMMAND OF INCOME
FROM THE LAND BY ITS RESIDENT, WHO IS SUBJECT TO ITS CONTROL AND ENJOYS
THE BENEFITS OF ITS LAWS.  THE IMPOSITION OF THESE DIFFERENT TAXES, BY
THE SAME OR DIFFERENT STATES, UPON THESE DISTINCT AND SEPARABLE TAXABLE
INTERESTS, IS NOT SUBJECT TO THE OBJECTION OF DOUBLE TAXATION, WHICH
HAS BEEN SUCCESSFULLY URGED IN THOSE CASES WHERE TWO OR MORE STATES
HAVE LAID THE SAME TAX UPON THE SAME PROPERTY INTEREST IN INTANGIBLES
OR UPON ITS TRANSFER AT DEATH.  SAFE DEPOSIT & TRUST CO. V. VIRGINIA,
SUPRA; FARMERS LOAN & TRUST CO. V. MINNESOTA, 280 U.S. 204; BALDWIN V.
MISSOURI, 281 U.S. 586; BEIDLER V. SOUTH CAROLINA TAX COMM'N, 282 U.S.
1; FIRST NATIONAL BANK V. MAINE, 284 U.S. 312.  THESE CONSIDERATIONS
LEAD TO THE CONCLUSION THAT INCOME DERIVED FROM REAL ESTATE MAY BE
TAXED TO THE RECIPIENT AT THE PLACE OF HIS DOMICIL, IRRESPECTIVE OF THE
LOCATION OF THE LAND, AND THAT THE STATE COURT RIGHTLY UPHELD THE TAX. 

NOTHING WHICH WAS SAID OR DECIDED IN POLLOCK V. FARMERS LOAN & TRUST
CO., 157 U.S. 429, CALLS FOR A DIFFERENT CONCLUSION.  THERE THE
QUESTION FOR DECISION WAS WHETHER A FEDERAL TAX ON INCOME DERIVED FROM
RENTS OF LAND IS A DIRECT TAX REQUIRING APPORTIONMENT UNDER ART. I,
SEC. 2, CL. 3 OF THE CONSTITUTION.  IN HOLDING THAT THE TAX WAS
"DIRECT," THE COURT DID NOT REST ITS DECISION UPON THE GROUND THAT THE
TAX WAS A TAX ON THE LAND, OR THAT IT WAS SUBJECT TO EVERY LIMITATION
WHICH THE CONSTITUTION IMPOSES ON PROPERTY TAXES.  IT DETERMINED ONLY
THAT FOR PURPOSES OF APPORTIONMENT THERE WERE SIMILARITIES IN THE
OPERATION OF THE TWO KINDS OF TAX WHICH MADE IT APPROPRIATE TO CLASSIFY
BOTH AS DIRECT, AND WITHIN THE CONSTITUTIONAL COMMAND.  SEE POLLOCK V.
FARMERS LOAN & TRUST CO., SUPRA, PP. 580, 581; BRUSHABER V. UNION
PACIFIC R. CO., 240 U.S. 1, 16.  AND IN UNION TRANSIT REFRIGERATOR CO.
V. KENTUCKY, 199 U.S. 194, 204, DECIDED TEN YEARS AFTER THE POLLOCK
CASE, THE PRESENT QUESTION WAS THOUGHT NOT TO BE FORECLOSED.   IT IS BY
A PARITY OF REASONING THAT THE IMMUNITY OF INCOME-PRODUCING
INSTRUMENTALITIES OF ONE GOVERNMENT, STATE OR NATIONAL, FROM TAXATION
BY THE OTHER, HAS BEEN EXTENDED TO THE INCOME.  IT WAS THOUGHT THAT THE
TAX, WHETHER ON THE INSTRUMENTALITY OR ON THE INCOME PRODUCED BY IT,
WOULD EQUALLY BURDEN THE OPERATIONS OF GOVERNMENT.  SEE COLLECTOR V.
DAY, 11 WALL.  113, 124; POLLOCK V. FARMERS LOAN & TRUST CO., SUPRA,
583; GILLESPIE V. OKLAHOMA, 257 U.S. 501.  BUT AS WE HAVE SEEN, IT DOES
NOT FOLLOW THAT A TAX ON LAND AND A TAX ON INCOME DERIVED FROM IT ARE
IDENTICAL IN THEIR INCIDENCE OR REST UPON THE SAME BASIS OF TAXING
POWER, WHICH ARE CONTROLLING FACTORS IN DETERMINING WHETHER EITHER TAX
INFRINGES DUE PROCESS. 

IN SENIOR V. BRADEN, SUPRA, ON WHICH APPELLANT RELIES, NO QUESTION OF
THE TAXATION OF INCOME WAS INVOLVED.  BY CONCESSION OF COUNSEL, ON
WHICH THE COURT RESTED ITS OPINION, IF THE INTEREST TAXED WAS "LAND OR
AN INTEREST IN LAND SITUATE WITHIN OR WITHOUT THE STATE," THE TAX WAS
INVALID, AND THE COURT HELD THAT THE INTEREST REPRESENTED BY THE
CERTIFICATES SUBJECTED TO THE TAX WAS AN EQUITABLE INTEREST IN THE
LAND.  HERE THE SUBJECT OF THE TAX IS THE RECEIPT OF INCOME BY A
RESIDENT OF THE TAXING STATE, AND IS WITHIN ITS TAXING POWER, EVEN
THOUGH DERIVED FROM PROPERTY BEYOND ITS REACH. 

INCOME FROM BONDS SECURED BY NEW JERSEY MORTGAGES.  WHAT HAS BEEN
SAID OF THE POWER TO TAX INCOME FROM LAND WITHOUT THE STATE IS DECISIVE
OF THE OBJECTION TO THE TAXATION OF THE INCOME FROM INTEREST ON BONDS
BECAUSE THEY ARE SECURED BY MORTGAGES ON LAND WITHOUT THE STATE,
COMPARE KIRTLAND V. HOTCHKISS, 100 U.S. 491.  APPELLANT ALSO ARGUES
THAT THE INTEREST FROM THE BONDS IS IMMUNE FROM TAXATION BY NEW YORK
BECAUSE THEY HAVE ACQUIRED A BUSINESS SITUS IN NEW JERSEY WITHIN THE
DOCTRINE OF NEW ORLEANS V. STEMPEL, 175 U.S. 309; METROPOLITAN LIFE
INS. CO. V. NEW ORLEANS, 205 U.S. 395; WHEELING STEEL CORP. V. FOX, 298
U.S. 193.  THIS CONTENTION, IF PERTINENT TO THE PRESENT CASE, IS NOT
SUPPORTED BY THE RECORD.  THE STIPULATION OF FACTS DISCLOSES ONLY THAT
THE BONDS AND MORTGAGES WERE LOCATED IN NEW JERSEY.  SEE BALDWIN V.
MISSOURI, SUPRA; BLODGETT V. SILBERMAN, 277 U.S. 1, 14, 15.  THE BURDEN
RESTED ON THE TAXPAYER TO PRESENT FURTHER FACTS WHICH WOULD ESTABLISH A
"BUSINESS SITUS."  BEIDLER V. SOUTH CAROLINA TAX COMM'N, 282 U.S. 1,
8. 

RETROACTIVE APPLICATION OF THE TAX.  APPELLANT INSISTS THAT IN
UPHOLDING THE TAX UPON HER INCOME FOR 1931 AND 1932 THE STATE COURT
INFRINGED DUE PROCESS BY GIVING RETROACTIVE EFFECT TO THE 1935
AMENDMENT OF SEC. 359 OF THE NEW YORK TAX LAW, WHICH SPECIFICALLY
DECLARED THAT RENTS, EMBRACED IN TAXABLE INCOME BY THE SECTION BEFORE
AMENDMENT, SHOULD INCLUDE RENT FROM REAL PROPERTY WITHOUT THE STATE. 
IN SUPPORT OF THIS CONTENTION APPELLANT POINTS TO THE DECISION IN
PEOPLE EX REL. PIERSON V. LYNCH, 266 N.Y. 431; 195 N.E. 141, AFFIRMING
237 APP. DIV. 763; 263 N.Y.S. 259, THAT RENTS FROM LAND OUTSIDE THE
STATE WERE NOT TAXED BY THAT SECTION BEFORE ITS AMENDMENT, AND TO THE
DISMISSAL BY THIS COURT OF THE WRIT OF CERTIORARI TO REVIEW THE
JUDGMENT FOR WANT OF A PROPERLY PRESENTED FEDERAL QUESTION.  293 U.S.
52. 

IT IS UNNECESSARY FOR US TO DETERMINE WHETHER, OR TO WHAT EXTENT, THE
STATE COURT, IN SUSTAINING THE TAX IN THIS CASE, RESTED ITS DECISION ON
THE AMENDMENT OF 1935, OR WHETHER IT REGARDED IT AS ANYTHING MORE THAN
A CLARIFYING ACT POINTING OUT THE MEANING PROPERLY ATTRIBUTABLE TO THE
RAISED IN THE STATE COURT THE OBJECTION, WHICH SHE PRESSES HERE, TO THE
RETROACTIVE APPLICATION OF THE STATUTE.  IN REVIEWING THE JUDGMENT OF A
STATE COURT, THIS COURT WILL NOT PASS UPON ANY FEDERAL QUESTION NOT
SHOWN BY THE RECORD TO HAVE BEEN RAISED IN THE STATE COURT OR
CONSIDERED THERE, WHETHER IT BE ONE ARISING UNDER A DIFFERENT OR THE
SAME CLAUSE IN THE CONSTITUTION WITH RESPECT TO WHICH OTHER QUESTIONS
ARE PROPERLY PRESENTED.  BOLLN V. NEBRASKA, 176 U.S. 83; NEW YORK V.
KLEINERT, 268 U.S. 646; SALTONSTALL V. SALTONSTALL, 276 U.S. 260. 
AFFIRMED. 

MR. JUSTICE BUTLER, DISSENTING. 

THE TAX IS ON INCOME.  I AM OF OPINION THAT THE RENTS RECEIVED BY
APPELLANT FOR THE USE OF REAL ESTATE IN NEW JERSEY MAY NOT BE INCLUDED
IN HER TAXABLE INCOME.  BY OUR DECISIONS IT IS ESTABLISHED THAT A TAX
ON INCOME RECEIVED FOR THE USE OF LAND IS IN LEGAL EFFECT A TAX UPON
THE LAND ITSELF.  POLLOCK V. FARMERS' LOAN & TRUST CO., 157 U.S. 429,
580-581; 158 U.S. 601, 627-628, 637.  THOMAS V. GAY, 169 U.S. 264,
274.  KNOWLTON V. MOORE, 178 U.S. 41, 80-82.  MCCOACH V. MINEHILL &
S.H.R. CO., 228 U.S. 295, 306.  STRATTON'S INDEPENDENCE V. HOWBERT, 231
U.S. 399, 414.  BRUSHABER V. UNION PACIFIC R. CO., 240 U.S. 1, 16. 
EISNER V. MACOMBER, 252 U.S. 189, 205.  EVANS V. GORE, 253 U.S. 245,
260.  GILLESPIE V. OKLAHOMA, 257 U.S. 501, 505.  LAKE SUPERIOR IRON
MINES V. LORD, 271 U.S. 577, 581-582.  SENIOR V. BRADEN, 295 U.S. 422,
427, 429, 431-432. 

NEW JERSEY, IN ADDITION TO TAX ON THE LAND MEASURED BY ITS VALUE, MAY
LAY A TAX UPON THE INCOME RECEIVED BY THE OWNER FOR ITS USE.  LAKE
SUPERIOR IRON MINES V. LORD, UBI SUPRA. 

APPELLANT'S RIGHT TO OWN, OR TO COLLECT RENTS IN NEW JERSEY FOR THE
USE OF, LANDS IN THAT STATE WAS NOT GIVEN AND IS NOT PROTECTED BY NEW
YORK LAW.  NEITHER OF THESE RIGHTS IS ENJOYED IN NEW YORK OR HAS ANY
RELATION TO APPELLANT'S PRIVILEGE OF RESIDENCE IN, OR TO THE PROTECTION
OF, THAT STATE.  ABILITY OF TAXPAYERS TO PAY MAY BE TAKEN INTO ACCOUNT
FOR APPORTIONMENT OF THE TAX BURDENS THAT IT IS AUTHORIZED TO IMPOSE. 
BUT THE FINANCIAL MEANS OF THOSE TO BE TAXED CANNOT BE MADE TO GENERATE
FOR THE STATE POWER TO TAX LANDS, OR RENTS PAID FOR USE OF LANDS,
BEYOND ITS BORDERS.  IT WOULD EXCLUDE THE ITEM. 

MR. JUSTICE MCREYNOLDS CONCURS IN THIS OPINION. 
..END :



PHELPS V. BOARD OF EDUCATION, 300 U.S. 319 


NO. 454.  ARGUED FEBRUARY 4, 5, 1937.  - DECIDED MARCH 1, 1937.  - 116
N.J.L. 412, 185 ATL. 8 - 116 N.J.L. 416, 184 ATL. 737, AFFIRMED. 


1.  WHERE IT IS CLAIMED THAT A CONTRACTUAL RIGHT WAS CREATED BY A
STATE STATUTE AND IMPAIRED BY A LATER ONE, THIS COURT WILL GIVE MUCH
WEIGHT TO THE CONSTRUCTION PUT UPON THE EARLIER STATUTE BY THE STATE
COURT, THOUGH NOT BOUND BY IT.  P. 322. 

2.  THE PROVISIONS OF C. 243, NEW JERSEY LAWS, 1909, FORBIDDING
REMOVAL OF PUBLIC SCHOOL TEACHERS WHO HAVE SERVED THREE YEARS, OR
REDUCTION OF THEIR SALARIES, EXCEPT FOR CAUSES SPECIFIED AND AFTER
NOTICE AND HEARING, DID NOT CREATE CONTRACTS WITH INDIVIDUAL TEACHERS
BUT WAS MERELY A LIMITATION UPON THE AUTHORITY OF THE BOARDS OF
EDUCATION WITH RESPECT TO THE TENURE AND SALARIES OF TEACHERS.  P.
323. 

3.  THE STIPULATED FACTS OF THIS CASE DO NOT SHOW CONTRACTS BETWEEN
THE BOARDS OF EDUCATION AND TEACHERS FOR SERVICE OF THE TEACHERS BEYOND
THE CURRENT YEAR.  P. 323. 

4.  NO ARBITRARY DISCRIMINATION, VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT, IS ATTRIBUTABLE TO A METHOD OF
REDUCING THE SALARIES OF SCHOOL TEACHERS BY DIVIDING THE SALARIES INTO
SEVERAL GROUPS IN ORDER OF AMOUNTS, AND APPLYING REDUCTION PERCENTAGES,
ASCENDING FROM THE LOWEST GROUP TO THE HIGHEST, ALTHOUGH IT RESULT IN
SOME INSTANCES THAT A TEACHER RECEIVING THE LOWEST SALARY IN HIS GROUP
WILL HAVE HIS SALARY REDUCED TO A FIGURE LOWER THAN THE REDUCED
COMPENSATION OF ONE RECEIVING THE HIGHEST COMPENSATION IN THE NEXT
LOWER GROUP.  P. 323. 

PHELPS V. BOARD OF EDUCATION OF WEST NEW YORK ET AL.* 

*TOGETHER WITH NO. 455, ASKAM ET AL. V. BOARD OF EDUCATION OF WEST
NEW YORK ET AL. APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW
JERSEY. 

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 

APPEALS FROM THE AFFIRMANCE BY THE COURT BELOW OF JUDGMENTS OF THE
SUPREME COURT OF NEW JERSEY (115 N.J.L. 310; 180 ATL. 220), WHICH HAD
AFFIRMED, ON CERTIORARI, THE ACTION OF THE STATE BOARD OF EDUCATION IN
A CONTROVERSY OVER REDUCTIONS IN THE PAY OF PRINCIPALS, TEACHERS AND
CLERKS, EMPLOYED IN THE PUBLIC SCHOOLS. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE PEOPLE OF NEW JERSEY HAVE ORDAINED BY THEIR CONSTITUTION THAT THE
LEGISLATURE "SHALL PROVIDE FOR THE MAINTENANCE AND SUPPORT OF A
THOROUGH AND EFFICIENT SYSTEM OF FREE PUBLIC SCHOOLS"...  FN1 IN
FULFILLMENT OF THIS COMMAND A COMPREHENSIVE SCHOOL LAW WAS ADOPTED IN
1903 BY WHICH BOARDS OF EDUCATION WERE SET UP FOR CITIES, TOWNS, AND
SCHOOL DISTRICTS THROUGHOUT THE STATE.  FN2  SECTION 106 EMPOWERED
THESE BOARDS TO MAKE RULES AND REGULATIONS GOVERNING ENGAGEMENT AND
EMPLOYMENT OF TEACHERS AND PRINCIPALS, TERMS AND TENURE OF SUCH
EMPLOYMENT, PROMOTION, AND DISMISSAL, SALARIES AND THEIR TIME AND MODE
OF PAYMENT, AND TO CHANGE AND REPEAL SUCH RULES AND REGULATIONS FROM
TIME TO TIME.  FN3  THIS GENERAL SCHOOL LAW WAS AMENDED BY THE ACT OF
APRIL 21, 1909,  FN4  SEC. 1 OF WHICH PROVIDES: 

"THE SERVICE OF ALL TEACHERS, PRINCIPALS, SUPERVISING PRINCIPALS OF
THE PUBLIC SCHOOLS IN ANY SCHOOL DISTRICT OF THIS STATE SHALL BE DURING
GOOD BEHAVIOR AND EFFICIENCY, AFTER THE EXPIRATION OF A PERIOD OF
EMPLOYMENT OF THREE CONSECUTIVE YEARS IN THAT DISTRICT, UNLESS A
SHORTER PERIOD IS FIXED BY THE EMPLOYING BOARD;...  NO PRINCIPAL OR
TEACHER SHALL BE DISMISSED OR SUBJECTED TO REDUCTION OF SALARY IN SAID
SCHOOL DISTRICT EXCEPT FOR INEFFICIENCY, INCAPACITY, CONDUCT UNBECOMING
A TEACHER OR OTHER JUST CAUSE, AND AFTER A WRITTEN CHARGE OF THE CAUSE
OR CAUSES SHALL HAVE BEEN PREFERRED AGAINST HIM OR HER,  ...  AND AFTER
THE CHARGE SHALL HAVE BEEN EXAMINED INTO AND FOUND TRUE IN FACT BY SAID
BOARD OF EDUCATION, UPON REASONABLE NOTICE TO THE PERSON CHARGED, WHO
MAY BE REPRESENTED BY COUNSEL AT THE HEARING...." 

AN ACT OF FEBRUARY 4, 1933,  FN5  PREMISING THAT EXISTING ECONOMIC
CONDITIONS REQUIRE THAT BOARDS OF EDUCATION BE ENABLED TO FIX AND
DETERMINE THE AMOUNT OF SALARY TO BE PAID TO PERSONS HOLDING POSITIONS
IN THE RESPECTIVE SCHOOL DISTRICTS, AUTHORIZES EACH BOARD TO FIX AND
DETERMINE SALARIES TO BE PAID OFFICERS AND EMPLOYES FOR THE PERIOD JULY
1, 1933, TO JULY 1, 1934, "NOTWITHSTANDING ANY SUCH PERSON BE UNDER
TENURE"; PROHIBITS INCREASE OF SALARIES WITHIN THE PERIOD NAMED;
FORBIDS DISCRIMINATION BETWEEN INDIVIDUALS IN THE SAME CLASS OF SERVICE
IN THE FIXING OF SALARIES OR COMPENSATION; AND SETS A MINIMUM BEYOND
WHICH BOARDS MAY NOT GO IN THE REDUCTION OF SALARIES.  JUNE 23, 1933,
THE BOARD ADOPTED A RESOLUTION REDUCING SALARIES FOR THE SCHOOL YEAR
JULY 1, 1933, TO JULY 1, 1934, BY A PERCENTAGE OF THE EXISTING SALARIES
GRADED UPWARD IN STEPS AS THE SALARIES INCREASED IN AMOUNT, EXCEPT WITH
RESPECT TO CLERKS, THE COMPENSATION OF EACH OF WHOM WAS REDUCED TO A
NAMED AMOUNT. 

APPELLANTS, WHO WERE PRINCIPALS, TEACHERS, AND CLERKS EMPLOYED BY THE
APPELLEE, PETITIONED THE DEPARTMENT OF PUBLIC INSTRUCTION, IN
ACCORDANCE WITH THE SCHOOL LAW, PRAYING THAT THE ACTION OF THE BOARD BE
SET ASIDE.  THE COMMISSIONER OF EDUCATION DISMISSED THE PETITION AND,
UPON APPEAL FROM HIS ACTION, THE STATE BOARD OF EDUCATION AFFIRMED THE
DECISION.  THE APPELLANTS APPLIED FOR CERTIORARI FROM THE SUPREME
COURT, ASSIGNING AMONG OTHER REASONS THAT THE DECISION VIOLATED ART. I,
SEC. 10, AND SEC. 1 OF THE FOURTEENTH AMENDMENT, OF THE FEDERAL
CONSTITUTION.  THE WRITS FN6  ISSUED AND, AFTER HEARING, THE COURT
AFFIRMED THE ACTION OF THE ADMINISTRATIVE TRIBUNAL.  FN7 THE COURT OF
ERRORS AND APPEALS AFFIRMED THE JUDGMENT UPON THE OPINION OF THE
SUPREME COURT.  FN8 

THE POSITION OF THE APPELLANTS IS THAT BY VIRTUE OF THE ACT OF 1909
THREE YEARS OF SERVICE UNDER CONTRACT CONFER UPON AN EMPLOYE OF A
SCHOOL DISTRICT A CONTRACTUAL STATUS INDEFINITE IN DURATION WHICH THE
LEGISLATURE IS POWERLESS TO ALTER OR TO AUTHORIZE THE BOARD OF
EDUCATION TO ALTER.  THE SUPREME COURT HOLDS THAT THE ACT OF 1909
"ESTABLISHED A LEGISLATIVE STATUS FOR TEACHERS, BUT WE FAIL TO SEE THAT
IT ESTABLISHED A CONTRACTUAL ONE THAT THE LEGISLATURE MAY NOT
MODIFY....  THE STATUS OF TENURE TEACHERS, WHILE IN ONE SENSE PERHAPS
CONTRACTUAL, IS IN ESSENCE DEPENDENT ON A STATUTE, LIKE THAT OF THE
INCUMBENT OF A STATUTORY OFFICE, WHICH THE LEGISLATURE AT WILL MAY
ABOLISH, OR WHOSE EMOLUMENTS IT MAY CHANGE." 

THIS COURT IS NOT BOUND BY THE DECISION OF A STATE COURT AS TO THE
EXISTENCE AND TERMS OF A CONTRACT, THE OBLIGATION OF WHICH IS ASSERTED
TO BE IMPAIRED, BUT WHERE A STATUTE IS CLAIMED TO CREATE A CONTRACTUAL
RIGHT WE GIVE WEIGHT TO THE CONSTRUCTION OF THE STATUTE BY THE COURTS
OF THE STATE.  FN9  HERE THOSE COURTS HAVE CONCURRED IN HOLDING THAT
THE ACT OF 1909 DID NOT AMOUNT TO A LEGISLATIVE CONTRACT WITH THE
TEACHERS OF THE STATE AND DID NOT BECOME A TERM OF THE CONTRACTS
ENTERED INTO WITH EMPLOYES BY BOARDS OF EDUCATION.  UNLESS THESE VIEWS
ARE PALPABLY ERRONEOUS WE SHOULD ACCEPT THEM. 

IT APPEARS FROM A STIPULATION OF FACTS SUBMITTED IN LIEU OF EVIDENCE
THAT AFTER A TEACHER HAS SERVED IN A SCHOOL DISTRICT UNDER YEARLY
CONTRACTS FOR THREE YEARS IT HAS NOT BEEN CUSTOMARY TO ENTER INTO
FURTHER FORMAL CONTRACTS WITH SUCH TEACHER.  FROM TIME TO TIME,
HOWEVER, PROMOTIONS WERE GRANTED AND SALARY RAISED FOR THE ENSUING YEAR
BY ACTION OF THE BOARD.  IN THE CASE OF MANY OF THE APPELLANTS THERE
HAVE BEEN SEVERAL SUCH INCREASES IN SALARY. 

ALTHOUGH AFTER THE EXPIRATION OF THE FIRST THREE YEARS OF SERVICE THE
EMPLOYE CONTINUED IN HIS THEN POSITION AND AT HIS THEN COMPENSATION
UNLESS AND UNTIL PROMOTED OR GIVEN AN INCREASE IN SALARY FOR A
SUCCEEDING YEAR, WE FIND NOTHING IN THE RECORD TO INDICATE THAT THE
BOARD WAS BOUND BY CONTRACT WITH THE TEACHER FOR MORE THAN THE CURRENT
YEAR.  THE EMPLOYE ASSUMED NO BINDING OBLIGATION TO REMAIN IN SERVICE
BEYOND THAT TERM.  ALTHOUGH THE ACT OF 1909 PROHIBITED THE BOARD, A
CREATURE OF THE STATE, FROM REDUCING THE TEACHER'S SALARY OR
DISCHARGING HIM WITHOUT CAUSE, WE AGREE WITH THE COURTS BELOW THAT THIS
WAS BUT A REGULATION OF THE CONDUCT OF THE BOARD AND NOT A TERM OF A
CONTINUING CONTRACT OF INDEFINITE DURATION WITH THE INDIVIDUAL
TEACHER. 

THE RESOLUTION OF JUNE 23, 1933, GROUPED THE EXISTING SALARIES PAID
BY THE BOARD INTO SIX CLASSES THE LOWEST OF WHICH COMPRISED SALARIES
BETWEEN TWELVE HUNDRED DOLLARS AND NINETEEN HUNDRED AND NINETY-NINE
DOLLARS; AND THE HIGHEST INCLUDED SALARIES RANGING BETWEEN FOUR
THOUSAND DOLLARS AND FIFTY-SIX HUNDRED DOLLARS.  THE REDUCTION IN THE
LOWEST CLASS FOR THE COMING YEAR WAS TEN PER CENT; THAT IN THE HIGHEST
CLASS FIFTEEN PER CENT.  SALARIES IN THE INTERMEDIATE CLASSES WERE
REDUCED ELEVEN, TWELVE, THIRTEEN, AND FOURTEEN PER CENT.  IT RESULTED
THAT IN SOME INSTANCES A TEACHER RECEIVING THE LOWEST SALARY IN A GIVEN
BRACKET WOULD HAVE HIS COMPENSATION REDUCED TO A FIGURE LOWER THAN THE
REDUCED COMPENSATION OF ONE RECEIVING THE HIGHEST SALARY IN THE NEXT
LOWER BRACKET.  FROM THIS CIRCUMSTANCE IT IS ARGUED THAT THE BOARD'S
ACTION ARBITRARILY DISCRIMINATED BETWEEN THE EMPLOYES AND SO DENIED
THEM THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH
AMENDMENT. 

WE THINK IT WAS REASONABLE AND PROPER THAT THE TEACHERS EMPLOYED BY
THE BOARD SHOULD BE DIVIDED INTO CLASSES FOR THE APPLICATION OF THE
PERCENTAGE REDUCTION.  ALL IN A GIVEN CLASS WERE TREATED ALIKE. 
INCIDENTAL INDIVIDUAL INEQUALITY RESULTING IN SOME INSTANCES FROM THE
OPERATION OF THE PLAN DOES NOT CONDEMN IT AS AN UNREASONABLE OR
ARBITRARY METHOD OF DEALING WITH THE PROBLEM OF GENERAL SALARY
REDUCTIONS OR DENY THE EQUALITY GUARANTEED BY THE FOURTEENTH
AMENDMENT.  JUDGMENTS AFFIRMED. 

FN1  ART. IV, SEC. VII, P 6, 1 N.J. COMP. ST. P. LXXV. 

FN2  ACT OF OCT. 19, 1903; LAWS OF N.J. 1904, 5; 4 N.J. COMP. ST.
4724. 

FN3  4 N.J. COMP. ST. 4762. 

FN4  CHAP. 243 N.J. LAWS 1909, PAMPH.  L. P. 398, 4 N.J. COMP ST.
4763, 4764. 

FN5  CHAP. 12, N.J. LAWS 1933, PAMPH.  L. P. 24. 

FN6  TWO WRITS WERE ISSUED.  THE ONLY DIFFERENCE BETWEEN THE TWO
CASES, WHICH WERE HEARD AS ONE, IS THAT IN THE PHELPS CASE THE EMPLOYE
REFUSED TO ACCEPT THE REDUCED SALARY.  IN THE CASE OF ASKAM ET AL., THE
EMPLOYES TOOK THE REDUCED SALARY UNDER PROTEST. 

FN7  115 N.J. LAW 310; 180 ATL. 220. 

FN8  116 N.J. LAW 412, 185 ATL. 8; 116 N.J. LAW 416, 184 ATL. 737. 

FN9  FREEPORT WATER CO. V. FREEPORT, 180 U.S. 587, 595; TAMPA WATER
WORKS CO. V. TAMPA, 199 U.S. 241, 243; MILWAUKEE ELECTRIC R. & L. CO.
V. RAILROAD COMM'N, 238 U.S. 174, 184; SETON HALL COLLEGE V. SOUTH
ORANGE, 242 U.S. 100, 103; COOMBES V. GETZ, 285 U.S. 434, 441. 
..END :









HOLYOKE POWER CO. V. PAPER CO., 300 U.S. 324 


NO. 180.  ARGUED DECEMBER 11, 1936.  - DECIDED MARCH 1, 1937.  - 83
F.(2D) 398, AFFIRMED. 


LEASES OF WATER-POWER RIGHTS TO BE ENJOYED IN PERPETUITY PROVIDED THAT
THE GRANTEE SHOULD PAY AS RENT "A QUANTITY OF GOLD WHICH SHALL BE EQUAL
IN AMOUNT TO" A STATED NUMBER OF "DOLLARS OF THE GOLD COIN OF THE
UNITED STATES OF THE STANDARD OF WEIGHT AND FINENESS OF THE YEAR 1894,
OR THE EQUIVALENT OF THIS COMMODITY IN UNITED STATES CURRENCY."  IN
1894, AND CONTINUOUSLY THEREAFTER TILL JANUARY 31, 1934, THE STATUTORY
GOLD CONTENT OF THE DOLLAR WAS TWENTY-FIVE AND EIGHT-TENTHS GRAINS OF
GOLD, NINE-TENTHS FINE.  SINCE JANUARY 31, 1934, BY FORCE OF THE GOLD
RESERVE ACT OF THAT YEAR AND THE ORDER OF THE PRESIDENT THEREUNDER, THE
GOLD CONTENT OF THE DOLLAR HAS BEEN FIXED TO CONSIST OF FIFTEEN AND
FIVE TWENTY-FIRSTS GRAINS OF GOLD, NINE-TENTHS FINE.  THE JOINT
RESOLUTION OF JUNE 5, 1933, HAD DECLARED THAT EVERY OBLIGATION PAYABLE
IN MONEY OF THE UNITED STATES, WHETHER THERETOFORE OR THEREAFTER
INCURRED, SHOULD BE DISCHARGED UPON PAYMENT, DOLLAR FOR DOLLAR, IN ANY
COIN OR CURRENCY WHICH AT THE TIME OF PAYMENT WAS LEGAL TENDER FOR
PUBLIC OR PRIVATE DEBTS, IRRESPECTIVE OF ANY PROVISION CONTAINED
THEREIN WHEREBY THE OBLIGEE WAS GIVEN A RIGHT TO REQUIRE PAYMENT IN
GOLD OR IN A PARTICULAR KIND OF COIN OR CURRENCY, OR IN AN AMOUNT IN
MONEY OF THE UNITED STATES MEASURED THEREBY.  HELD: 

1.  THE LESSEE'S OBLIGATION UNDER THE CONTRACT WAS FOR THE PAYMENT OF
MONEY, AND NOT FOR THE DELIVERY OF GOLD AS UPON SALE OF A COMMODITY. 
P. 335. 

2.  A CONTRACT FOR THE PAYMENT OF GOLD AS THE EQUIVALENT OF MONEY, AND
A FORTIORI A CONTRACT FOR THE PAYMENT OF MONEY MEASURABLE IN GOLD, IS
WITHIN THE LETTER OF THE JOINT RESOLUTION OF JUNE 5, 1933, AND EQUALLY
WITHIN ITS SPIRIT, NORMAN V. BALTIMORE & OHIO R. CO., 294 U.S. 240.  P.
337. 

AN OBLIGATION TO MAKE DELIVERY UPON A BONA FIDE SALE IS NOT FAIRLY TO
BE CLASSIFIED AS AN OBLIGATION "PAYABLE IN MONEY," WITHIN THE MEANING
OF THE JOINT RESOLUTION, OR SO IT MAY BE ASSUMED FOR THE PURPOSE OF
THIS CASE.  BUT THE EVIL AIMED AT BY THE RESOLUTION DOES INCLUDE
TRANSACTIONS WHEREBY GOLD, COINED OR UNCOINED, IS TO BE DELIVERED IN
SATISFACTION OF A DEBT EXPRESSED IN TERMS OF DOLLARS, PAYMENT, NOT
SALE, BEING THEN THE END TO BE ACHIEVED, AND TRANSACTIONS WHEREBY A
DEBT IS TO BE DISCHARGED, NOT IN BULLION, BUT IN DOLLARS, IF THE NUMBER
OF THE DOLLARS IS TO BE INCREASED OR DIMINISHED IN PROPORTION TO THE
DIMINUTION OR THE INCREASE OF THE GOLD BASIS OF THE CURRENCY. 

HOLYOKE WATER POWER CO. V. AMERICAN WRITING PAPER CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. 

CERTIORARI, 299 U.S. 526, TO REVIEW A JUDGMENT OF THE CIRCUIT COURT
OF APPEALS AFFIRMING AN ORDER OF THE DISTRICT COURT MADE IN A
PROCEEDING FOR REORGANIZATION OF THE PAPER COMPANY UNDER SEC. 77B OF
THE BANKRUPTCY ACT.  THE ORDER FIXED THE AMOUNTS DUE FROM THAT COMPANY
TO A WATER POWER COMPANY, THE PRESENT PETITIONER, UNDER SEVERAL
LEASES.  11 F.SUPP.  518.  SEE 9 ID. 451. 

THE QUESTION FOR DETERMINATION IS THE MEASURE OF THE DEBTOR'S
LIABILITY, ON THREE CERTAIN DATES AFTER THE DEVALUATION OF THE DOLLAR,
UNDER AN OBLIGATION IN THE ALTERNATIVE, TO PAY EITHER A SPECIFIED
QUANTITY OF GOLD AS A COMMODITY OR ITS EQUIVALENT IN CURRENCY, AT THE
OPTION OF THE DEBTOR. 

THE PROVISION FOR PAYMENT IN GOLD WAS IMPOSSIBLE OF PERFORMANCE
ACCORDING TO ITS TERMS, AND NO PROVISION FOR ITS DISCHARGE OTHER THAN
ACCORDING TO ITS TERMS WAS PROVIDED BY LAW (MORE PARTICULARLY, BY THE
JOINT RESOLUTION OF JUNE 5, 1933). 

THE PURPOSE OF THE PARTIES IN DRAWING THE RENTAL PROVISIONS IN THE
FORM IN DISPUTE WAS TO PROVIDE AGAINST THE EFFECT OF AN APPRECIATION OR
DEPRECIATION OF THE CURRENCY BY ADOPTING GOLD BULLION AS A MEDIUM OF
PAYMENT, OR, AT THE OPTION OF THE LESSEE, AS A MEASURE OF AN
INDETERMINATE AMOUNT OF CURRENCY ACCORDING TO THE RATIO OF EQUIVALENCE
BETWEEN GOLD BULLION AND CURRENCY ON THE VARIOUS RENTAL DATES. 
ACCORDING TO THE ORDINARY MEANING OF "EQUIVALENCE," WITH RESPECT TO
THIS RELATION, AND AS EVIDENT FROM VARIOUS LEGISLATIVE ENACTMENTS AND
EXECUTIVE ACTS, THE CURRENCY EQUIVALENT OF GOLD BULLION ON JULY 1 AND
OCTOBER 1, 1934, AND ON JANUARY 1, 1935, ACCORDING TO THE INTENT OF THE
REMAINING ALTERNATIVE PROVISION, WAS ONE DOLLAR FOR EACH 15 5/21 GRAINS
OF GOLD NINE-TENTHS FINE, OR $35 AN OUNCE. 

THE DEBTOR'S DUTY TO PERFORM THIS CONTRACTUAL PROVISION ACCORDING TO
ITS TERMS HAS NOT BEEN MODIFIED BY LAW (MORE PARTICULARLY, BY THE SAID
JOINT RESOLUTION), FOR THE FOLLOWING REASONS: 

1.  THE PROVISION OF THE JOINT RESOLUTION FOR THE DISCHARGE OF
CERTAIN CONTRACTS "DOLLAR FOR DOLLAR" APPLIES ONLY TO OBLIGATIONS TO
PAY SUMS CERTAIN IN MONEY.  THIS IS APPARENT FROM THE TERMS OF THE
RESOLUTION ITSELF, WHETHER READ BY THEMSELVES OR IN CONNECTION WITH
RELEVANT EXTERNAL EVIDENCE OF THEIR MEANING. 

THE HISTORIC FACT THAT GOLD HAS FROM TIME TO TIME BEEN THE METALLIC
BASE OF THE MONEY OF THE UNITED STATES HAS NOT THE EFFECT OF
CONSTITUTING UNCOINED GOLD BULLION "MONEY."  THE TERMS OF THE EXPRESS
POWER GIVEN TO CONGRESS TO "COIN MONEY" INDICATE THE NECESSITY OF
COINAGE TO GIVE TO BULLION THE QUALITY OF LEGAL TENDER ATTRIBUTED BY
THE LAW, ASIDE FROM ITS BULLION VALUE (SEE NORMAN V. BALTIMORE & OHIO
R. CO., 294 U.S. 240, 304). 

THE TERMS OF THE PROVISION FOR THE DISCHARGE OF CERTAIN MONEY
OBLIGATIONS "DOLLAR FOR DOLLAR" THEMSELVES NECESSARILY RESTRICT THE
OPERATION OF THE RESOLUTION TO OBLIGATIONS PAYABLE IN DOLLARS. 

NOR IS THE QUESTION AFFECTED BY THE INCLUSION IN THE RENTAL PROVISION
OF THE WORDS "FIFTEEN HUNDRED ($1500) DOLLARS OF THE GOLD COIN OF THE
UNITED STATES."  IT WAS PLAINLY THE FUNCTION OF THIS PHRASE SIMPLY TO
RENDER THE MAGNITUDE OF THE QUANTITY OF GOLD BEING STIPULATED FOR MORE
READILY COMPREHENSIBLE TO THE CONTRACTING PARTIES.  IF THE PARTIES HAD
FOREGONE THE READY MEANS OF VISUAL COMPREHENSION AFFORDED BY THE
REFERENCE TO GOLD COINS, AND HAD CALCULATED IN THE BEGINNING (AS MUST
EVENTUALLY HAVE BEEN DONE BEFORE PAYMENT IN ANY CASE) THE NUMBER OF
OUNCES OR GRAINS OF GOLD BEING CONTRACTED FOR, AND HAD WRITTEN THE
STIPULATION IN TERMS FOR "80.625 OUNCES OF GOLD .9 FINE, OR 72.5625
OUNCES OF GOLD 1000 FINE," THE SUBSTANCE OF THE UNDERTAKING WOULD HAVE
BEEN IN NO RESPECT DIFFERENT.  HOLYOKE WATER POWER CO. V. AMERICAN
WRITING PAPER CO., 9 F.SUPP.  451, 453; EMERY BIRD THAYER DRY GOODS CO.
V. WILLIAMS, 15 F.SUPP.  938, 941. 

2.  EVEN IF THE TERMS OF THE RESOLUTION BE EQUIVOCAL IN THIS RESPECT,
THEY ARE TO BE CONSTRUED AS NOT REFERRING TO CONTRACTS PAYABLE IN MONEY
MEASURED BY GOLD AS A COMMODITY, BECAUSE INTERFERENCE BY CONGRESS WITH
SUCH CONTRACTS WOULD BE SUBJECT TO GRAVE DOUBTS AS TO ITS
CONSTITUTIONALITY.  CONTRACTS EMPLOYING A COMMODITY AS A STANDARD OF
VALUE ARE NOT WITHIN THE FIELD OF THE CURRENCY POWER OF CONGRESS;
ALTHOUGH, EVEN IF THEY BE WITHIN THAT FIELD, THEY DO NOT EXIST TO SUCH
EXTENT AS TO OBSTRUCT THE MONETARY POLICY OF CONGRESS. 

3.  THE OBLIGATION OF THE PARTICULAR CONTRACTS IN QUESTION MAY NOT BE
IMPAIRED, AS DECREED BY THE CIRCUIT COURT OF APPEALS, FOR THE
ADDITIONAL REASON THAT THEY PROVIDE FOR PAYMENT FOR THE SUPPLY OF THE
POWER OF ARTIFICIALLY IMPOUNDED WATER WHICH YOUR PETITIONER IS
CONTRACTUALLY BOUND TO FURNISH, IN FIXED AMOUNTS, IN PERPETUITY. 
PAYMENT OF THE CURRENCY EQUIVALENT ACCORDING TO THE INTENT OF THE
UNDERTAKINGS WILL NOT CONSTITUTE AN UNJUST BURDEN UPON THE DEBTOR, AND
SO WILL NOT CREATE A DISLOCATION OF THE DOMESTIC ECONOMY TO ANY DEGREE
WHATEVER.  BY THE SAME TOKEN, THE TENDENCY OF THE RESULT WHICH IT WAS
THE DESIGN OF THE CONGRESS, IN ENACTING THE JOINT RESOLUTION, TO
PRODUCE, MUST BE, IF THE DECREE BE AFFIRMED, INEVITABLY TO REQUIRE THE
WATER POWER COMPANY TO PERFORM THAT WHICH IS ECONOMICALLY IMPOSSIBLE. 

FOR THESE REASONS, INTERFERENCE WITH THE PERFORMANCE OF THESE
INDENTURES WOULD DEPRIVE YOUR PETITIONER OF PROPERTY AND WOULD BEAR NO
REASONABLE RELATION TO ANY LEGITIMATE EXERCISE OF POWER BY THE CONGRESS
AND WOULD CONSTITUTE VIOLATION OF THE FIFTH AND TENTH AMENDMENTS TO THE
CONSTITUTION. 

IF THE CURRENCY EQUIVALENT FOR WHICH THE PETITIONER CONTENDS MAY NOT
BE RECOVERED, IT IS SUBMITTED THAT IN NO EVENT SHOULD THAT EQUIVALENT
BE DETERMINED ACCORDING TO THE DECREE OF THE CIRCUIT COURT OF APPEALS,
BUT THAT THE DECREE BE MODIFIED SO AS NOT TO PRECLUDE RECOVERY BY THE
PETITIONER ACCORDING TO THE ACTUAL VALUE OF THE WATER POWER FURNISHED
DURING THE RENTAL PERIODS IN QUESTION, AND TO BE FURNISHED IN THE
FUTURE. 

THE RENTAL PROVISIONS IN THESE INDENTURES ARE NOT REALLY COMMODITY
CONTRACTS.  THEY DO NOT REQUIRE THE OBLIGOR TO DELIVER A COMMODITY. 
THEY ARE GOLD VALUE CONTRACTS, BECAUSE THEY PROVIDE FOR PAYMENT EITHER
IN GOLD OR IN THE EQUIVALENT OF GOLD IN CURRENCY AT THE OPTION OF THE
OBLIGOR.  SINCE THE PERFORMANCE OF EITHER ALTERNATIVE IS A FULL
PERFORMANCE OF THE CONTRACT, THE CONTRACT MAY BE FULLY SATISFIED BY THE
PAYMENT OF MONEY WITHOUT THE DELIVERY OF A SINGLE OUNCE OF ANY
COMMODITY AT ANY TIME.  IF THIS WERE A COMMODITY CONTRACT, THE MONEY
PAYMENT WOULD BE DAMAGES FOR THE BREACH OF A CONTRACT TO DELIVER THE
GOLD, NOT, AS IT IS, THE PERFORMANCE OF THE CONTRACT IN ACCORDANCE WITH
ITS VERY TERMS.  PLAINLY IT IMPOSES NO OBLIGATION UPON THE OBLIGOR TO
DELIVER GOLD AS A COMMODITY OR OTHERWISE.  THE OBLIGATION IS TO DELIVER
THE VALUE OF GOLD, EITHER BY THE DELIVERY OF THE GOLD ITSELF OR OF ITS
EQUIVALENT IN MONEY.  SIMPLY CALLING THE MEASURE OF THE EQUIVALENT
MONEY A COMMODITY DOES NOT MAKE THE CONTRACT A COMMODITY CONTRACT. 

WE HAVE, THEREFOR, NOT A GOLD CONTRACT, BUT A GOLD VALUE CONTRACT. 

THE RECENT GOLD LEGISLATION OF 1933-1934, WHICH MUST BE TAKEN AS A
LEGISLATIVE UNIT, AND OF WHICH THE JOINT RESOLUTION OF 1933 WAS ONLY
ONE PART, DID TWO THINGS:  (1) IT ELIMINATED THE ALTERNATIVE OF GOLD BY
MAKING IT IMPOSSIBLE TO PAY IN GOLD; AND (2) IT RENDERED THE REMAINING
ALTERNATIVE OF MONEY DISCHARGEABLE DOLLAR FOR DOLLAR.  FOR THAT WAS AN
OBLIGATION TO PAY AN AMOUNT OF MONEY MEASURED BY GOLD, AND EXPRESSLY
COVERED BY THE JOINT RESOLUTION.  CONGRESS BANNED GOLD AS WELL AS GOLD
COINS, AND TOOK ACTION TO PUT ALL GOLD VALUE CONTRACTS ON A UNIFORM
BASIS OF PARITY. 

THE JOINT RESOLUTION DECLARES TO BE AGAINST PUBLIC POLICY ANY
OBLIGATION PURPORTING "TO GIVE THE OBLIGEE A RIGHT TO REQUIRE PAYMENT
IN GOLD OR A PARTICULAR KIND OF COIN OR CURRENCY, OR IN AN AMOUNT OF
MONEY OF THE UNITED STATES MEASURED THEREBY."  THIS LANGUAGE EMBRACES
THE PRESENT CONTRACT, SINCE IT EXPRESSLY CALLS FOR GOLD OR AN AMOUNT OF
CURRENCY MEASURED THEREBY.  UNDER THE TERMS OF THE RESOLUTION,
THEREFORE, THIS CONTRACT IS DISCHARGEABLE DOLLAR FOR DOLLAR IN
CURRENCY. 

THE PETITIONER CONTENDS THAT THE JOINT RESOLUTION WAS NOT INTENDED TO
APPLY TO THE PRESENT CONTRACT BECAUSE THE FORMULA PRESCRIBED FOR THE
DISCHARGE OF CONTRACTS - I.E., BY PAYMENT "DOLLAR FOR DOLLAR" - IS NOT
ADAPTED TO A CONTRACT WHICH REFERS TO DOLLARS ONLY FOR THE PURPOSE OF
FIXING A QUANTITY OF GOLD WHICH, IN TURN, IS TO BE TAKEN AS THE MEASURE
OF PAYMENT IN CURRENCY.  THE PETITIONER ARGUES THAT THE REFERENCE TO
DOLLARS IN THIS INDENTURE WAS MERELY INCIDENTAL AND FORTUITOUS; THAT
THE PARTIES COULD HAVE ACHIEVED THE SAME RESULT BY PROVIDING FOR A
CERTAIN NUMBER OF OUNCES OF GOLD WITH NO MENTION OF DOLLARS WHATEVER;
AND THAT A FORMULA DISCHARGING THE CONTRACT "DOLLAR FOR DOLLAR" DOES
NOT APPLY WHERE THE CONTRACT CONTAINED NO REFERENCE AT ALL TO DOLLARS. 

THIS ARGUMENT IS BASED ON A PRACTICAL INCONVENIENCE WHICH DOES NOT
EXIST IN THIS CASE.  FOR HERE THERE IS AN EXPRESS REFERENCE TO A FIXED
AMOUNT OF DOLLARS AND HERE THERE IS NO DIFFICULTY WHATEVER IN APPLYING
THE FORMULA FOR DISCHARGE "DOLLAR FOR DOLLAR."  MOREOVER, THE
PETITIONER'S ARGUMENT, IF ACCEPTED, WOULD CONFINE THE RESOLUTION TO
CONTRACTS CALLING FOR A PARTICULAR KIND OF COIN OR CURRENCY, OR THEIR
EQUIVALENT, AND WOULD READ OUT OF THE RESOLUTION ENTIRELY THE PROVISION
WHICH PROHIBITS CONTRACTS REQUIRING "PAYMENT IN GOLD  ...  OR IN AN
AMOUNT IN MONEY  ...  MEASURED THEREBY."  THIS PROVISION MUST MEAN THAT
THE RESOLUTION WAS INTENDED TO APPLY, NOT ONLY TO CONTRACTS WHICH
PROVIDE FOR THE PAYMENT OF CURRENCY IN THE EQUIVALENT OF GOLD COIN, BUT
ALSO TO CONTRACTS, LIKE THE PRESENT, PROVIDING FOR PAYMENT OF CURRENCY
IN THE EQUIVALENT OF GOLD. 

WHAT WE HAVE HERE IS AN EXPRESS GOLD VALUE CLAUSE.  IT IS WHAT THE
GOLD CLAUSE IN NORMAN V. BALTIMORE & OHIO R. CO. WAS CONSTRUED TO BE.
WHAT WAS THERE IMPLIED BY THE PARTIES AND CONSTRUED BY THE COURT IS
HERE EXPRESSED BY THE PARTIES.  THE DECISION IN THAT CASE IS DECISIVE
HERE. 

THE MONETARY POWER OF CONGRESS EXTENDS OVER MONEY CONTRACTS MEASURED
IN TERMS OF GOLD AS WELL AS OVER CONTRACTS FOR GOLD COIN.  WHETHER IT
WOULD EXTEND TO CONTRACTS ATTEMPTING TO MAKE OTHER COMMODITIES THE
MEASURE OF MONEY IS BESIDE THE POINT.  GOLD HAS BEEN USED AS MONEY AND
AS THE MEASURE OF MONEY TOO LONG TO RELIEVE IT OF THE PUBLIC BURDEN OF
REGULATION BY CONGRESS. 

NOR IS THE JOINT RESOLUTION AS APPLIED TO THESE RENTAL CLAUSES
INVALID BECAUSE THERE MAY BE SO FEW OF THEM THAT THEY ALONE MIGHT NOT
REASONABLY BE REGARDED AS AN OBSTACLE TO THE EFFECTIVE EXERCISE OF
CONGRESSIONAL POWER.  THAT IS NOT THE POINT.  THE POINT IS WHETHER THEY
ARE TO BE MADE AN EXCEPTION TO AN EXERCISE OF THAT POWER WHICH
EXPRESSLY INCLUDES THEM.  THERE IS NO REASONABLE GROUND FOR SINGLING
THEM OUT AS AN EXCEPTION.  TO SINGLE THEM OUT WOULD STRIKE AT THE VERY
REASON FOR GIVING THE POWER TO CONGRESS, WHICH WAS UNIFORMITY. 
MOREOVER, IF THEY AND SUCH AS THEY WERE EXEMPTED, THE EXCEPTION WOULD
SOON BECOME THE RULE, AS THE ONLY WAY MEN WOULD HAVE TO FIX PROMISED
MONEY VALUES IN TERMS OF GOLD. 

BUT, EVEN IF THE JOINT RESOLUTION CANNOT BE APPLIED TO THESE RENTAL
CLAUSES, WHETHER AS INAPPLICABLE OR AS INVALID IF SO APPLIED - EVEN IF
THERE HAD BEEN NO JOINT RESOLUTION, YET THE EQUIVALENT IN MONEY WHICH
THESE INDENTURES CALL FOR IS AT THE RATE OF $20.67 PER OUNCE OF GOLD. 
THIS RESULT IS REACHED QUITE INDEPENDENTLY OF THE RESOLUTION.  THE
USUAL DOCTRINES OF THE LAW OF CONTRACTS, APPLIED TO THE SITUATION
CREATED BY THE IMPOSSIBILITY OF PAYING IN GOLD, REQUIRE IT. 

THE MEASURE OF THE EQUIVALENT OF THE GOLD IN MONEY IS WHAT THE GOLD
WOULD HAVE BEEN WORTH TO THE PETITIONER IF IT HAD BEEN PAID.  THAT IS
WHAT THE PETITIONER CONTRACTED FOR WITH THE WORD "EQUIVALENT."  IT
CANNOT MEAN MORE THAN THAT WITHOUT BELYING ITS OWN NAME. 

AN EXAMINATION OF THE RELEVANT TREASURY REGULATIONS SHOWS THAT, IF
THE GOLD HAD BEEN PAID, THE PETITIONER COULD HAVE GOT FOR IT $20.67 PER
OUNCE, NOT $35 PER OUNCE OR ANY OTHER SUM. 

THE REDUCTION OF THE GOLD CONTENT OF THE DOLLAR BY THE GOLD RESERVE
ACT OF 1933, AND THE PRESIDENTIAL PROCLAMATION MADE NO DIFFERENCE TO
THAT RESULT.  DEVALUATION MADE THE GOLD WORTH NO MORE TO THE
PETITIONER.  IT COULD HAVE GOT NO MORE DOLLARS FOR SUCH GOLD AFTER THE
DEVALUATION THAN BEFORE. 

THIS IS THE SAME RESULT WE REACH BY APPLYING THE JOINT RESOLUTION, AND
IT IS JUST THE RESULT WE SHOULD EXPECT FROM THE FACT THAT THE GOLD
RESERVE ACT, THE PRESIDENTIAL PROCLAMATION, THE TREASURY REGULATIONS,
AND THE JOINT RESOLUTION ARE ALL OF THEM PARTS OF ONE WHOLE, ALL
DIRECTED TO THE SAME END. 

PERRY V. UNITED STATES HELD THAT THIS WAS SO FOR GOLD COIN, AND THERE
IS NO REASON TO GIVE MORE FOR GOLD BULLION THAN FOR GOLD COIN.  THE
DETERMINATION OF THE EQUIVALENT IN THAT CASE IS DECISIVE OF ITS
DETERMINATION HERE AT $20.67 PER OUNCE. 

THE PETITIONER HAS SHOWN NO LOSS TO IT HERE, ANY MORE THAN PERRY IN
THAT CASE SHOWED ANY LOSS TO HIM THERE.  WE HAVE ONLY THE CERTAINTY
THAT THE RESPONDENT IS BEING ASKED TO PAY 69 CENTS A DOLLAR MORE THAN
IT HAS BEEN PAYING - A GRATUITOUS LOSS TO IT AND A WINDFALL TO THE
PETITIONER.    MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

THE CONTROVERSY IS ONE AS TO THE NUMBER OF DOLLARS IN PRESENT
CURRENCY THAT WILL DISCHARGE A COVENANT FOR RENT IN LEASES ANTEDATING
THE REDUCTION OF THE GOLD CONTENT OF THE DOLLAR, THE COVENANT BEING
PHRASED IN THE MANNER HEREINAFTER STATED. 

AT VARIOUS TIMES BETWEEN 1881 AND 1897 THIRTEEN LEASES WERE EXECUTED
BY THE HOLYOKE WATER COMPANY, THE PETITIONER, TO THE AMERICAN WRITING
PAPER COMPANY, INC., THE RESPONDENT, FOR THE ENJOYMENT IN PERPETUITY OF
WATERPOWER RIGHTS AND PRIVILEGES IN CONSIDERATION OF AN ANNUAL RENTAL. 
WITH VARIATIONS IMMATERIAL FOR PRESENT PURPOSES, THE PROVISION FOR
RENTAL IS THE SAME IN ALL THE LEASES.  BY CONCESSION THE FOLLOWING FORM
HAS BEEN ACCEPTED AS TYPICAL:  THE GRANTEE SHALL YIELD AND PAY UNTO THE
GRANTOR AS RENT "A QUANTITY OF GOLD WHICH SHALL BE EQUAL IN AMOUNT TO
FIFTEEN HUNDRED ($1500) DOLLARS OF THE GOLD COIN OF THE UNITED STATES
OF THE STANDARD OF WEIGHT AND FINENESS OF THE YEAR 1894, OR THE
EQUIVALENT OF THIS COMMODITY IN UNITED STATES CURRENCY."  IN 1894 AND
CONTINUOUSLY THEREAFTER TILL JANUARY 31, 1934, THE STATUTORY GOLD
CONTENT OF THE DOLLAR WAS TWENTY FIVE AND EIGHT TENTHS GRAINS OF GOLD,
NINE TENTHS FINE.  SINCE JANUARY 31, 1934, BY FORCE OF THE GOLD RESERVE
ACT OF THAT YEAR (48 STAT. 337) AND THE ORDER OF THE PRESIDENT
THEREUNDER, THE GOLD CONTENT OF THE DOLLAR HAS BEEN FIXED TO CONSIST OF
FIFTEEN AND FIVE TWENTY-FIRSTS GRAINS OF GOLD, NINE TENTHS FINE. 
BEFORE THAT REDUCTION A JOINT RESOLUTION OF THE CONGRESS, DATED JUNE 5,
1933(48 STAT. 112), HAD DECLARED THAT EVERY OBLIGATION PAYABLE IN MONEY
OF THE UNITED STATES, WHETHER THERETOFORE OR THEREAFTER INCURRED,
SHOULD BE DISCHARGED UPON PAYMENT, DOLLAR FOR DOLLAR, IN ANY COIN OR
CURRENCY WHICH AT THE TIME OF PAYMENT WAS LEGAL TENDER FOR PUBLIC OR
PRIVATE DEBTS, IRRESPECTIVE OF ANY PROVISION CONTAINED THEREIN WHEREBY
THE OBLIGEE WAS GIVEN A RIGHT TO REQUIRE PAYMENT IN GOLD OR IN A
PARTICULAR KIND OF COIN OR CURRENCY, OR IN AN AMOUNT IN MONEY OF THE
UNITED STATES MEASURED THEREBY.  THE PRECISE TERMS OF THE RESOLUTION
AND ITS RECITALS WILL BE CONSIDERED MORE AT LENGTH HEREAFTER. 

IN JUNE, 1934, THE DOLLAR HAVING BEEN THEN DEVALUED, THE LESSEE
CORPORATION BECAME INSOLVENT OR UNABLE TO PAY ITS DEBTS AS THEY
MATURED.  TAKING ADVANTAGE OF SEC. 77B OF THE BANKRUPTCY ACT, IT FILED
A PETITION FOR REORGANIZATION WHICH THE COURT OF BANKRUPTCY APPROVED. 
THE LESSOR (PETITIONER HERE) INTERVENED IN THAT PROCEEDING AND PRAYED
THAT THE AMOUNT DUE TO IT FOR RENT UNDER THE SEVERAL WATER-POWER LEASES
BE INQUIRED INTO AND DETERMINED.  ON BEHALF OF THE LESSEE THE
CONTENTION WAS THAT BY FORCE OF THE JOINT RESOLUTION THE DEBT WAS
DISCHARGEABLE, DOLLAR FOR DOLLAR, IN THE THEN PREVAILING CURRENCY.  ON
BEHALF OF THE LESSOR THE CONTENTION WAS THAT THE MARKET PRICE OF FINE
GOLD AT THE TIME OF THE DEFAULT AND LATER WAS $35 AN OUNCE, OR $31.50
FOR AN OUNCE NINE TENTHS FINE, AND THAT PAYMENT SHOULD BE MADE UPON
THAT BASIS FOR AS MANY OUNCES OF SUCH GOLD AS WERE CONTAINED IN THE
STIPULATED DOLLARS AT THE EXECUTION OF THE LEASES.  IN PRESSING THAT
CONTENTION, THE LESSOR DID NOT DENY THAT THE LAW DECLINES TO GIVE
EFFECT TO CONTRACTS WHEREBY DEBTS ARE MADE PAYABLE IN GOLD COIN, OR IN
CURRENCY VARYING IN AMOUNT WITH THE GOLD BASIS OF THE DOLLAR.  NORMAN
V. BALTIMORE & OHIO R. CO., 294 U.S. 240.  WHAT WAS ARGUED WAS RATHER
THIS, THAT THE COVENANT HERE IN QUESTION WAS NOT FOR THE PAYMENT OF A
DEBT, BUT FOR THE SALE OF A COMMODITY, OR IF VIEWED AS A COVENANT FOR
PAYMENT, THAT THE STANDARD WAS THE COMMODITY VALUE OF THE BULLION, NOT
THE VALUE OF THE COIN AS MONEY, THE DIFFERENCE BEING THOUGHT TO BE
SUFFICIENT TO CHANGE THE APPLICABLE RULE.  THE DISTRICT COURT HELD IN
FAVOR OF THE LESSEE, AND COMPUTED THE INDEBTEDNESS ACCORDINGLY.  11
F.SUPP.  518; SEE 9 F.SUPP.  451.  THE COURT OF APPEALS FOR THE FIRST
CIRCUIT AFFIRMED.  83 F.(2D) 398.  BECAUSE OF THE IMPORTANCE OF THE
QUESTION WE GRANTED CERTIORARI. 

1.  THE OBLIGATION WAS ONE FOR THE PAYMENT OF MONEY, AND NOT FOR THE
DELIVERY OF GOLD AS UPON THE SALE OF A COMMODITY. 

THE LESSOR WAS A WATER POWER COMPANY, ENGAGED IN THAT BUSINESS AND
NOT IN ANY OTHER.  THERE IS NO PRETENSE THAT IT WAS STIPULATING FOR
GOLD TO BE USED IN ART OR INDUSTRY.  WHAT IT WISHED WAS CURRENCY, OR
BULLION SUSCEPTIBLE OF BEING CONVERTED INTO CURRENCY, THE LESSEE TO
MAKE THE CHOICE.  THE ALTERNATIVE FORMS OF PAYMENT SHED LIGHT UPON EACH
OTHER.  THEY WILL BE CONSIDERED IN SUCCESSION. 

BY THE FIRST TERM OF THE ALTERNATIVE, THERE MAY BE PAYMENT OF THE
RENT IN THE FORM OF "A QUANTITY OF GOLD WHICH SHALL BE EQUAL IN AMOUNT
TO $1500 OF THE GOLD COIN OF THE UNITED STATES OF THE STANDARD OF
WEIGHT AND FINENESS OF THE YEAR 1894."  IN THIS FORM THERE IS NO CALL
FOR A STATED NUMBER OF OUNCES OF FINE GOLD, AS IF A GOLDSMITH WERE
PROVIDING FOR THE USES OF HIS BUSINESS.  THE CALL IS FOR GOLD THAT
SHALL BE AS HEAVY AND AS FINE AS A STATED NUMBER OF GOLD DOLLARS, WITH
THE RESULT THAT DELIVERY IN SUCH DOLLARS IS A PAYMENT IN STRICT
ACCORDANCE WITH THE LETTER OF THE CONTRACT.  WE MUST CONSIDER THE
SITUATION OF THE PARTIES, THEIR BUSINESS NEEDS AND EXPECTATIONS, IN
GAUGING THEIR INTENTION.  WHEN THESE ARE KEPT IN VIEW, THE GOLD IS SEEN
TO BE A STANDARD WITH WHICH TO STABILIZE THE VALUE OF THE DOLLAR; THE
DOLLAR NOT A YARDSTICK WITH WHICH TO MEASURE THE QUANTITY OF THE GOLD. 
TO READ THE LEASES OTHERWISE IS TO PERMIT THE REALITIES OF THE
TRANSACTION, ITS SUBSTANCE AND ESSENTIAL PURPOSE, TO BE OBSCURED BY
FORMS AND PHRASES.  LONG AGO IT WAS SAID BY A DISTINGUISHED MEMBER OF
THIS COURT, COMMENTING UPON A DIFFERENT STATUTE, BUT ONE ANALOGOUS IN
PURPOSE:  "IF THE CONTRACT IS FOR THE DELIVERY OF A CHATTEL OR A
SPECIFIC COMMODITY OR SUBSTANCE, THE LAW DOES NOT APPLY.  IF IT IS BONA
FIDE FOR SO MANY CARATS OF DIAMONDS OR SO MANY OUNCES OF GOLD AS
BULLION, THE SPECIFIC CONTRACT MUST BE PERFORMED (ASSUMING, OF COURSE,
THAT CONTRACTS FOR THE DELIVERY OF BULLION ARE NOT PROHIBITED BY LAW). 
BUT IF TERMS WHICH NATURALLY IMPORT SUCH A CONTRACT ARE USED BY WAY OF
EVASION, AND MONEY ONLY IS INTENDED, THE LAW REACHES THE CASE."  PER
BRADLEY, J., IN LEGAL TENDER CASES, 12 WALL.  457, 566.  HERE WHAT WAS
INTENDED WAS TO ASSURE THE PAYMENT OF A MONEY DEBT IN DOLLARS OF A
VALUE AS CONSTANT AS THAT OF GOLD.  NORMAN V. BALTIMORE & OHIO R. CO.,
SUPRA, P. 302; CF. FEIST V. SOCIETE INTERCOMMUNALE BELGE D'ELECTRICITE,
L.R. (1934) A.C. 161, 172, 173.  THE FACT IS OF LITTLE MOMENT THAT
CURRENCY IS CHARACTERIZED AS A COMMODITY IN THE VERBIAGE OF THE
COVENANT AS LONG AS IT IS CURRENCY.  CF. LIPKE V. LEDERER, 259 U.S.
557, 561, 562.  WEASEL WORDS WILL NOT AVAIL TO DEFEAT THE TRIUMPH OF
INTENTION WHEN ONCE THE WORDS ARE READ IN THE SETTING OF THE WHOLE
TRANSACTION.  SO READ, THE END TO BE ACHIEVED IS SHOWN FORTH
UNMISTAKABLY AS A PAYMENT, NOT A SALE. 

THIS CONCLUSION WOULD BE NECESSARY THOUGH THE FIRST OF THE
ALTERNATIVE FORMS OF PAYMENT STOOD ALONE IN THE INDENTURES.  THE
NECESSITY BECOMES EVEN PLAINER WHEN THE FIRST IS CONSIDERED IN
CONJUNCTION WITH THE SECOND.  THE LESSEE AT ITS OPTION MAY PAY THE
EQUIVALENT OF THE GOLD "IN UNITED STATES CURRENCY."  THE PRESENCE OF
THIS ALTERNATIVE GIVES A QUIETUS TO THE ARGUMENT THAT THE LESSOR WAS
DESIROUS OF THE GOLD AS A COMMODITY AND WAS BARGAINING THEREFOR.  IF
THERE HAD BEEN ANY SUCH DESIRE, THE CHOICE AS TO THE FORMS OF PAYMENT
WOULD NEVER HAVE BEEN LEFT TO THE LESSEE, AS BY IMPLICATION OF LAW IT
WAS, FOR A DEBTOR, IF METHODS OF PERFORMANCE ARE ALTERNATIVE, MAY
CHOOSE WHICHEVER ONE HE PLEASES.  3 WILLISTON, CONTRACTS, SEC. 1407;
RESTATEMENT, CONTRACTS, VOL. 1, P. 493.  IN POINT OF FACT, THERE WERE
STATUTES IN EXISTENCE AT THE TIME OF THE DEFAULT IN PAYMENT THAT MADE
DELIVERY OF GOLD IMPOSSIBLE.  NORMAN V. BALTIMORE & OHIO R. CO., SUPRA,
PP. 295, 296; NORTZ V. UNITED STATES, 294 U.S. 317, 327, 328; PERRY V.
UNITED STATES, 294 U.S. 330, 355.  THE LESSEE WOULD PERFORCE HAVE HAD
TO AVAIL ITSELF OF THE SECOND TERM OF THE ALTERNATIVE, IF IT HAD BEEN
ABLE TO PAY AT ALL.  BUT IF BOTH MODES OF PAYMENT HAD BEEN PRESERVED,
THE SECOND EQUALLY WITH THE FIRST WOULD HAVE BEEN EFFECTIVE TO
DISCHARGE THE OBLIGATION.  PAYMENT IN CURRENCY, QUITE AS MUCH AS
PAYMENT IN COIN OR IN BULLION, WAS NOT ONLY PERFORMANCE UNDER THE LAW,
BUT PERFORMANCE UNDER THE CONTRACT, PROVIDED ONLY THAT THE VALUE OF THE
CURRENCY WAS EQUAL, WHEN PAID, TO THE VALUE OF THE GOLD.  WHETHER THAT
PROVISO HAS BEEN ABROGATED IS NEXT TO BE CONSIDERED. 

2.  A CONTRACT FOR THE PAYMENT OF GOLD AS THE EQUIVALENT OF MONEY,
AND A FORTIORI A CONTRACT FOR THE PAYMENT OF MONEY MEASURABLE IN GOLD,
IS WITHIN THE LETTER OF THE JOINT RESOLUTION OF JUNE 5, 1933, AND
EQUALLY WITHIN ITS SPIRIT. 

THE RESOLUTION, FOR CONVENIENCE OF REFERENCE, IS PRINTED IN THE
MARGIN.*ITS HISTORY HAS BEEN TRACED IN NORMAN V. BALTIMORE & OHIO R.
CO., SUPRA.  THERE IS NO NEED TO REPEAT WHAT HAS BEEN ALREADY DONE SO
THOROUGHLY.  THE RESOLUTION TOUCHES GOLD AS WELL AS COIN OR CURRENCY
WHENEVER TRANSACTIONS IN EITHER ARE WITHIN THE EVIL TO BE REMEDIED.  WE
LEARN FROM THE PREAMBLE THAT "PROVISIONS OF OBLIGATIONS WHICH PURPORT
TO GIVE THE OBLIGEE A RIGHT TO REQUIRE PAYMENT IN GOLD OR A PARTICULAR
KIND OF COIN OR CURRENCY OF THE UNITED STATES, OR IN AN AMOUNT IN MONEY
OF THE UNITED STATES MEASURED THEREBY, OBSTRUCT THE POWER OF THE
CONGRESS TO REGULATE THE VALUE OF THE MONEY OF THE UNITED STATES, AND
ARE INCONSISTENT WITH THE DECLARED POLICY OF THE CONGRESS TO MAINTAIN
AT ALL TIMES THE EQUAL POWER OF EVERY DOLLAR, COINED OR ISSUED BY THE
UNITED STATES, IN THE MARKETS AND IN THE PAYMENT OF DEBTS." 
ACCORDINGLY, ALL SUCH PROVISIONS ARE DECLARED TO BE AGAINST PUBLIC
POLICY, AND EVERY OBLIGATION, HERETOFORE OR HEREAFTER INCURRED, THOUGH
IT CONTAIN SUCH PROVISIONS, SHALL BE PAYABLE, DOLLAR FOR DOLLAR, IN
LEGAL TENDER AT THE TIME OF PAYMENT.  TRANSACTIONS FOR THE SALE OR
DELIVERY OF GOLD FOR INDUSTRIAL PURPOSES ARE NOT WITHIN THE EVIL TO BE
REMEDIED, AND SO ARE NOT WITHIN THE STATUTE.  CF. EXECUTIVE ORDER OF
APRIL 5, 1933, AND AUGUST 28, 1933; ORDERS OF THE SECRETARY OF THE
TREASURY, DECEMBER 28, 1933 AND JANUARY 15, 1934; EMERGENCY BANKING ACT
OF MARCH 9, 1933, 48 STAT. 1, 2, SEC. 3.  AN OBLIGATION TO MAKE
DELIVERY UPON A BONA FIDE SALE IS NOT FAIRLY TO BE CLASSIFIED AS AN
OBLIGATION "PAYABLE IN MONEY" (JOINT RESOLUTION, SUBDIVISION (B)), OR
SO WE NOW ASSUME.  BUT VERY DEFINITELY, THE EVIL DOES INCLUDE
TRANSACTIONS WHEREBY GOLD, COINED OR UNCOINED, IS TO BE DELIVERED IN
SATISFACTION OF A DEBT EXPRESSED IN TERMS OF DOLLARS, PAYMENT, NOT
SALE, BEING THEN THE END TO BE ACHIEVED.  AS DEFINITELY, INDEED MORE
OBVIOUSLY, THE EVIL INCLUDES TRANSACTIONS WHEREBY A DEBT IS TO BE
DISCHARGED, NOT IN BULLION, BUT IN DOLLARS, IF THE NUMBER OF THE
DOLLARS IS TO BE INCREASED OR DIMINISHED IN PROPORTION TO THE
DIMINUTION OR THE INCREASE OF THE GOLD BASIS OF THE CURRENCY.  BOTH
FORMS OF OBLIGATION ARE ILLUSTRATIONS OF THE VERY MISCHIEF THAT
CONGRESS SOUGHT TO HIT. 

*"JOINT RESOLUTION. 

"TO ASSURE UNIFORM VALUE TO THE COINS AND CURRENCIES OF THE UNITED
STATES. 

"WHEREAS THE HOLDING OF OR DEALING IN GOLD AFFECT THE PUBLIC
INTEREST, AND ARE THEREFORE SUBJECT TO PROPER REGULATION AND
RESTRICTION; AND 

"WHEREAS THE EXISTING EMERGENCY HAS DISCLOSED THAT PROVISIONS OF
OBLIGATIONS WHICH PURPORT TO GIVE THE OBLIGEE A RIGHT TO REQUIRE
PAYMENT IN GOLD OR A PARTICULAR KIND OF COIN OR CURRENCY OF THE UNITED
STATES, OR IN AN AMOUNT IN MONEY OF THE UNITED STATES MEASURED THEREBY,
OBSTRUCT THE POWER OF THE CONGRESS TO REGULATE THE VALUE OF THE MONEY
OF THE UNITED STATES, AND ARE INCONSISTENT WITH THE DECLARED POLICY OF
THE CONGRESS TO MAINTAIN AT ALL TIMES THE EQUAL POWER OF EVERY DOLLAR,
COINED OR ISSUED BY THE UNITED STATES, IN THE MARKETS AND IN THE
PAYMENT OF DEBTS.  NOW, THEREFORE, BE IT 

"RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED
STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT (A) EVERY PROVISION
CONTAINED IN OR MADE WITH RESPECT TO ANY OBLIGATION WHICH PURPORTS TO
GIVE THE OBLIGEE A RIGHT TO REQUIRE PAYMENT IN GOLD OR A PARTICULAR
KIND OF COIN OR CURRENCY, OR IN AN AMOUNT IN MONEY OF THE UNITED STATES
MEASURED THEREBY, IS DECLARED TO BE AGAINST PUBLIC POLICY; AND NO SUCH
PROVISION SHALL BE CONTAINED IN OR MADE WITH RESPECT TO ANY OBLIGATION
HEREAFTER INCURRED.  EVERY OBLIGATION, HERETOFORE OR HEREAFTER
INCURRED, WHETHER OR NOT ANY SUCH PROVISION IS CONTAINED THEREIN OR
MADE WITH RESPECT THERETO, SHALL BE DISCHARGED UPON PAYMENT, DOLLAR FOR
DOLLAR, IN ANY COIN OR CURRENCY WHICH AT THE TIME OF PAYMENT IS LEGAL
TENDER FOR PUBLIC AND PRIVATE DEBTS.  ANY SUCH PROVISION CONTAINED IN
ANY LAW AUTHORIZING OBLIGATIONS TO BE ISSUED BY OR UNDER AUTHORITY OF
THE UNITED STATES, IS HEREBY REPEALED, BUT THE REPEAL OF ANY SUCH
PROVISION SHALL NOT INVALIDATE ANY OTHER PROVISION OR AUTHORITY
CONTAINED IN SUCH LAW. 

"(B)  AS USED IN THIS RESOLUTION, THE TERM 'OBLIGATION' MEANS AN
OBLIGATION (INCLUDING EVERY OBLIGATION OF AND TO THE UNITED STATES
EXCEPTING CURRENCY) PAYABLE IN MONEY OF THE UNITED STATES; AND THE TERM
'COIN OR CURRENCY' MEANS COIN OR CURRENCY OF THE UNITED STATES,
INCLUDING FEDERAL RESERVE NOTES AND CIRCULATING NOTES OF FEDERAL
RESERVE BANKS AND NATIONAL BANKING ASSOCIATIONS. 

"SEC. 2.  THE LAST SENTENCE OF PARAGRAPH (1) OF SUBSECTION (B) OF
ECONOMIC EMERGENCY BY INCREASING AGRICULTURAL PURCHASING POWER, TO
RAISE REVENUE FOR EXTRAORDINARY EXPENSES INCURRED BY REASON OF SUCH
EMERGENCY, TO PROVIDE EMERGENCY RELIEF WITH RESPECT TO AGRICULTURAL
INDEBTEDNESS, TO PROVIDE FOR THE ORDERLY LIQUIDATION OF JOINT-STOCK
LAND BANKS, AND FOR OTHER PURPOSES,' APPROVED MAY 12, 1933, IS AMENDED
TO READ AS FOLLOWS:    "'ALL COINS AND CURRENCIES OF THE UNITED STATES
(INCLUDING FEDERAL RESERVE NOTES AND CIRCULATING NOTES OF FEDERAL
RESERVE BANKS AND NATIONAL BANKING ASSOCIATIONS) HERETOFORE OR
HEREAFTER COINED OR ISSUED, SHALL BE LEGAL TENDER FOR ALL DEBTS, PUBLIC
AND PRIVATE, PUBLIC CHARGES, TAXES, DUTIES, AND DUES, EXCEPT THAT GOLD
COINS, WHEN BELOW THE STANDARD WEIGHT AND LIMIT OF TOLERANCE PROVIDED
BY LAW FOR THE SINGLE PIECE, SHALL BE LEGAL TENDER ONLY AT VALUATION IN
PROPORTION TO THEIR ACTUAL WEIGHT.' 

"APPROVED, JUNE 5, 1933, 4:40 P.M."    3.  THE ARGUMENT IS MADE THAT
IN THE CASE NOW BEFORE US THE CURRENCY CALLED FOR BY THE CONTRACT IS
STATED TOO INDEFINITELY TO BE TRANSLATED, DOLLAR FOR DOLLAR, AS
REQUIRED BY THE RESOLUTION, INTO THE LEGAL TENDER OF THE HOUR.  BUT THE
DIFFICULTY IS QUITE IMAGINARY.  THINGS THAT ARE EQUAL TO THE SAME THING
ARE EQUAL TO EACH OTHER.  THERE IS APPLICATION FOR THE MAXIM HERE.  IF
THE CURRENCY TO BE PAID BY THE LESSEE IS TO BE THE EQUIVALENT OF GOLD,
AND IF THE GOLD IS TO BE THE EQUIVALENT OF A STATED NUMBER OF GOLD
DOLLARS OF A PARTICULAR WEIGHT AND FINENESS, THEN THE COVENANT TO PAY
THE CURRENCY IS TANTAMOUNT TO A COVENANT TO PAY THE DOLLARS, AND
DOLLARS OF THE STATED STANDARD.  THIS IS THE OBLIGATION THAT RESPONDENT
TOOK UPON ITSELF WHEN IT BECAME A PARTY TO THESE LEASES.  IT IS,
HOWEVER, THE VERY OBLIGATION THAT HAS BEEN OUTLAWED BY THE STATUTE AS A
MENACE TO THE MAINTENANCE OF OUR MONETARY SYSTEM.  NORMAN V. BALTIMORE
& OHIO R. CO., SUPRA, PP. 306, 311.  "DOLLAR FOR DOLLAR," THE
OBLIGATION FOR THE PAYMENT OF MONEY CONFORMING TO THE STANDARD OF THE
COVENANT IS TO BE DISCHARGED WITH MONEY OF THE STANDARD ESTABLISHED BY
THE LAW. 

4.  THE ARGUMENT IS MADE THAT COVENANTS OF THIS PARTICULAR FORM ARE
SO RARE AND EXCEPTIONAL THAT THE PROTECTION OF THE MONETARY SYSTEM DOES
NOT REQUIRE THEIR SUPPRESSION, AND THAT ARBITRARY SUPPRESSION IS
INCONSISTENT WITH THE FIFTH AMENDMENT.  HOW EXCEPTIONAL OR RARE THEY
ARE, WE HAVE NO MEANS OF ASCERTAINING.  FOR ANYTHING PROVED IN THE
RECORD OR SUBJECT TO JUDICIAL NOTICE THEY MAY BE ILLUSTRATIONS, EVEN IF
VERBAL VARIANTS, OF A TYPE COMMON IN THE PETITIONER'S BUSINESS AND
INDEED IN MANY OTHERS.  BUT THE POWER OF THE CONGRESS IS NOT DEPENDENT
UPON THE RESULTS OF SUCH A CENSUS.  A PARTICULAR COVENANT, IF VIEWED IN
ISOLATION, MAY HAVE A SLIGHT, PERHAPS A TRIVIAL, INFLUENCE UPON THE
EFFECTIVENESS AND SYMMETRY OF A NEW MONETARY POLICY.  THE AGGREGATE OF
MANY COVENANTS, EACH CONTRIBUTING ITS MITE, MAY BRING THE SYSTEM TO
DESTRUCTION.  RIVULETS IN COMBINATION MAKE UP A STREAM OF TENDENCY THAT
MAY ATTAIN ENGULFING POWER.  NO PRINCIPLE OF CONSTITUTIONAL LAW, NO
DICTATE OF FAIR DEALING, LAYS A DUTY UPON THE CONGRESS TO SINGLE OUT
FOR SPECIAL TREATMENT AN INDIVIDUAL OR A FEW AMONG THE MEMBERS OF A
COMMON MASS.  CF. PURITY EXTRACT CO. V. LYNCH, 226 U.S. 192, 201.  ONE
CANNOT EVEN SAY WITH REASON THAT THE EFFECTS OF THIS PARTICULAR
COVENANT ARE TO BE CLASSIFIED AS NEGLIGIBLE.  THE LESSEE AS THE
RECIPIENT OF PRINCIPAL OR INCOME MUST ACCEPT PAYMENT FROM ITS DEBTORS
IN THE DEPRECIATED CURRENCY.  IT IS INJURED, AT LEAST APPRECIABLY, IF
IT IS REQUIRED TO PAY ITS CREDITORS IN DOLLARS OF A DIFFERENT
STANDARD.  NORMAN V. BALTIMORE & OHIO R. CO., SUPRA, P. 315.  RECEIPTS
AND DISBURSEMENTS ARE NO LONGER ON A COMMON BASIS. 

5.  IN LAST ANALYSIS, THE CASE FOR THE PETITIONER AMOUNTS TO LITTLE
MORE THAN THIS, THAT THE EFFECT OF THE RESOLUTION IN ITS APPLICATION TO
THESE LEASES IS TO MAKE THE VALUE OF THE DOLLARS FLUCTUATE WITH
VARIATIONS IN THE WEIGHT AND FINENESS OF THE MONETARY STANDARD, AND
THUS DEFEAT THE EXPECTATION OF THE PARTIES THAT THE STANDARD WOULD BE
CONSTANT AND THE VALUE RELATIVELY STABLE.  SUCH, INDEED, IS THE EFFECT,
AND THE COVENANT OF THE PARTIES IS TO THAT EXENT ABORTIVE.  BUT THE
DISAPPOINTMENT OF EXPECTATIONS AND EVEN THE FRUSTRATION OF CONTRACTS
MAY BE A LAWFUL EXERCISE OF POWER WHEN EXPECTATION AND CONTRACT ARE IN
CONFLICT WITH THE PUBLIC WELFARE.  "CONTRACTS MAY CREATE RIGHTS OF
PROPERTY, BUT WHEN CONTRACTS DEAL WITH A SUBJECT MATTER WHICH LIES
WITHIN THE CONTROL OF THE CONGRESS, THEY HAVE A CONGENITAL INFIRMITY." 
NORMAN V. BALTIMORE & OHIO R. CO., SUPRA, PP. 307, 308.  TO THAT
CONGENITAL INFIRMITY THIS COVENANT SUCCUMBS. 

THE DECREE OF THE CIRCUIT COURT OF APPEALS IS ACCORDINGLY AFFIRMED. 

MR. JUSTICE VAN DEVANTER, MR. JUSTICE MCREYNOLDS, MR. JUSTICE
SUTHERLAND, AND MR. JUSTICE BUTLER DISSENT. 
..END :



VAN BEECK V. SABINE TOWING CO., 300 U.S. 342 


NO. 460.  ARGUED FEBRUARY 5, 8, 1937.  - DECIDED MARCH 1, 1937.  - 85
F.(2D) 478, REVERSED. 


1.  THE CAUSE OF ACTION PROVIDED BY THE MERCHANT MARINE ACT, 46 U.S.C.
688, IN CONNECTION WITH THE EMPLOYERS' LIABILITY ACT, 45 U.S.C. 51, ON
BEHALF OF SURVIVORS OR DEPENDENTS OF A SEAMAN WHO HAS SUFFERED DEATH BY
REASON OF HIS EMPLOYER'S NEGLIGENCE, IS NOT TO BE CONFUSED WITH ANY
CAUSE OF ACTION THAT MAY HAVE ACCRUED TO THE SEAMAN HIMSELF BETWEEN THE
TIME OF HIS INJURY AND THE TIME OF HIS DEATH, BUT IS A NEW CAUSE OF
ACTION, ENFORCIBLE BY HIS PERSONAL REPRESENTATIVE FOR THE BENEFICIARY
IN WHICH THE RECOVERY IS LIMITED TO THE PECUNIARY LOSS SUSTAINED BY THE
BENEFICIARY, THROUGH THE DEATH, AS CONTRASTED WITH THE PERSONAL LOSS
AND SUFFERING SUSTAINED BY THE DECEDENT BEFORE HIS DEATH.  PP. 344,
346. 

2.  A SUIT BROUGHT UNDER THE MERCHANT MARINE ACT, 46 U.S.C. 688, AND
THE EMPLOYERS' LIABILITY ACT, 45 U.S.C. 51, BY THE ADMINISTRATOR OF A
DECEASED MARINER TO COMPENSATE DECEDENT'S MOTHER FOR LOSS CAUSED TO HER
BY HIS INSTANTANEOUS DEATH THROUGH HIS EMPLOYER'S NEGLIGENCE, DOES NOT
ABATE AT HER DEATH BUT MAY BE CONTINUED BY THE ADMINISTRATOR OF HIS
ESTATE (OR BY THE ADMINISTRATOR DE BONIS NON IF SHE WAS THE
ADMINISTRATOR) FOR THE RECOVERY OF HER PECUNIARY LOSS UP TO THE MOMENT
OF HER DEATH, THE DAMAGES, WHEN COLLECTED, TO BE PAID TO HER ESTATE. 
CHICAGO, B. & Q.R. CO. V. WELLS-DICKEY TRUST CO., 275 U.S. 161,
DISTINGUISHED.  P. 347. 

3.  THIS CASE IS NOT AFFECTED BY STATUTES WHICH REGULATE THE
CONTINUANCE OF A PROCEEDING IN A COURT OF THE UNITED STATES BY THE
SUBSTITUTION OF THE EXECUTOR OR ADMINISTRATOR OF A PARTY DYING WHILE
THE SUIT IS PENDING.  28 U.S.C. 778.  P. 350. 

VAN BEECK, ADMINISTRATOR, V. SABINE TOWING CO., INC., ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 299 U.S. 535, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
DISMISSING AN ACTION BY THE ADMINISTRATOR OF A DECEASED SEAMAN TO
RECOVER FOR THE LOSS SUSTAINED BY THE DECEDENT'S MOTHER ON ACCOUNT OF
HIS DEATH. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

THE MERCHANT MARINE ACT OF 1920(JUNE 5, 1920, C. 250, SEC. 33, 41
STAT. 1007; 46 U.S.C. SEC. 688) GIVES A CAUSE OF ACTION FOR DAMAGES TO
THE PERSONAL REPRESENTATIVE OF A SEAMAN WHO HAS SUFFERED DEATH IN THE
COURSE OF HIS EMPLOYMENT BY REASON OF HIS EMPLOYER'S NEGLIGENCE.  THE
QUESTION IS WHETHER THE LIABILITY ABATES WHERE THE BENEFICIARY OF THE
CAUSE OF ACTION, IN THIS CASE THE MOTHER OF THE SEAMAN, DIES DURING THE
PENDENCY OF A SUIT IN HER BEHALF. 

THE STEAM TOW-BOAT, EDGAR F. CONEY, SANK ON JANUARY 28, 1930, WITH
THE LOSS OF ALL ON BOARD.  THE RESPONDENT, SABINE TOWING COMPANY, INC.,
THE OWNER OF THE BOAT, FILED A LIBEL IN A UNITED STATES DISTRICT COURT
IN TEXAS FOR THE LIMITATION OF LIABILITY.  IN THAT PROCEEDING CLAIMS
FOR DAMAGES WERE FILED BY THE PERSONAL REPRESENTATIVES OF SEVERAL
MEMBERS OF THE CREW.  AMONG SUCH CLAIMS WAS ONE FOR THE PECUNIARY
DAMAGE SUFFERED THROUGH THE DEATH OF THE SECOND MATE OF THE VESSEL,
EDWARD C. VAN BEECK.  HE DIED UNMARRIED, LEAVING A MOTHER AND SEVERAL
BROTHERS.  THERE BEING NEITHER WIFE NOR CHILD NOR FATHER, THE MOTHER
WAS THE SOLE BENEFICIARY OF THE STATUTORY CAUSE OF ACTION.  THIS
RESULTS FROM THE PROVISIONS OF THE EMPLOYERS' LIABILITY ACT (45 U.S.C.
SEC. 51), GOVERNING INJURIES TO RAILWAY EMPLOYEES, WHICH IS MADE
APPLICABLE BY THE MERCHANT MARINE ACT IN CASE OF INJURIES TO SEAMEN. 
CF. CORTES V. BALTIMORE INSULAR LINE, 287 U.S. 367, 376.  THE MOTHER
WAS APPOINTED ADMINISTRATRIX OF HER SON'S ESTATE, AND ACTING AS SUCH
ADMINISTRATRIX FILED HER CLAIM FOR DAMAGES.  SHE DIED IN JULY 1931, AND
THEREUPON THE PETITIONER, A BROTHER OF THE DEAD SEAMAN, SUCCEEDED TO
HER OFFICE BY APPOINTMENT DULY MADE, AND WAS SUBSTITUTED AS CLAIMANT IN
THE PENDING SUIT.  IN THAT SUIT A COMMISSIONER REPORTED THAT THE MOTHER
HAD SUFFERED LOSS UP TO THE TIME OF HER DEATH IN THE SUM OF $700, AND
THAT THERE SHOULD BE AN AWARD OF THAT AMOUNT FOR THE USE OF HER
ESTATE.  THE DISTRICT COURT DISMISSED THE CLAIM ON THE GROUND THAT AT
HER DEATH THE LIABILITY ABATED, AND THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT AFFIRMED THE DISMISSAL.  85 F.(2D) 478.  TO SETTLE THE MEANING
OF AN IMPORTANT ACT OF CONGRESS, WE GRANTED CERTIORARI. 

THE STATUTORY CAUSE OF ACTION TO RECOVER DAMAGES FOR DEATH USHERED IN
A NEW POLICY AND BROKE WITH OLD TRADITIONS.  ITS MEANING IS LIKELY TO
BE MISREAD IF SHREDS OF THE DISCARDED POLICY ARE TREATED AS STILL
CLINGING TO IT AND NARROWING ITS SCOPE.  THE CASE OF HIGGINS V.
BUTCHER, NOY 18; YELV.  89, WHICH AROSE IN THE KING'S BENCH IN 1606, IS
THE STARTING POINT OF THE RULE, LONG ACCEPTED IN OUR LAW, THOUGH AT
TIMES WITH MUTTERINGS OF DISAPPROVAL,  FN1  THAT IN AN ACTION OF TORT
DAMAGES ARE NOT RECOVERABLE BY ANY ONE FOR THE DEATH OF A HUMAN BEING. 
FN2  THE RULE IS OFTEN VIEWED AS A DERIVATIVE OF THE FORMULA "ACTIO
PERSONALIS MORITUR CUM PERSONA," A MAXIM WHICH "IS ONE OF SOME
ANTIQUITY," THOUGH "ITS ORIGIN IS OBSCURE AND POST-CLASSICAL."  FN3
EVEN IN CLASSICAL TIMES, HOWEVER, THE ROMAN LAW ENFORCED THE PRINCIPLE
THAT "NO ACTION OF AN ESSENTIALLY CENAL CHARACTER COULD BE COMMENDED
AFTER THE DEATH OF THE PERSON RESPONSIBLE FOR THE INJURY."  FN4
VENGEANCE, THOUGH PERMISSIBLE DURING LIFE, WAS NOT TO "REACH BEYOND THE
GRAVE."  FN5  THERE WAS ALSO AN ACCEPTED DOCTRINE THAT NO MONEY VALUE
COULD BE PUT ON THE LIFE OF A FREEMAN.  FN6  THE POST-CLASSICAL MAXIM,
TAKEN UP BY COKE AND HIS SUCCESSORS,  FN7  GAVE A NEW CURRENCY TO THESE
TEACHINGS OF THE DIGEST, AND, IT SEEMS, A NEW EXTENSION.  FN8  BUT THE
DENIAL OF A CAUSE OF ACTION FOR WRONGS PRODUCING DEATH HAS BEEN
ASCRIBED TO OTHER SOURCES ALSO.  THE EXPLANATION HAS BEEN FOUND AT
TIMES IN THE COMMON LAW NOTION THAT TRESPASS AS A CIVIL WRONG IS
DROWNED IN A FELONY.  FN9  AS TO THE ADEQUACY OF THIS EXPLANATION GRAVE
DOUBT HAS BEEN EXPRESSED.  FN10  NONE THE LESS, THE RULE AS TO FELONY
MERGER SEEMS TO HAVE COALESCED, EVEN IF IN A CONFUSED WAY, WITH THE
RULE AS TO ABATEMENT,  FN11  AND THE EFFECT OF THE TWO IN COMBINATION
WAS TO FASTEN UPON THE LAW A DOCTRINE WHICH IT TOOK A SERIES OF
STATUTES TO DISLODGE. 

THE ADOPTION OF LORD CAMPBELL'S ACT IN 1846(9 & 10 VICT.  C. 93),
GIVING AN ACTION TO THE EXECUTOR FOR THE USE OF WIFE, HUSBAND, PARENT
OR CHILD, MARKS THE DAWN OF A NEW ERA.  IN THIS COUNTRY, STATUTES
SUBSTANTIALLY THE SAME IN TENOR FOLLOWED IN QUICK SUCCESSION IN ONE
STATE AFTER ANOTHER, TILL TODAY THERE IS NOT A STATE OF THE UNION IN
WHICH A REMEDY IS LACKING.  FN12 CONGRESS JOINED IN THE PROCESSION,
FIRST WITH THE EMPLOYERS' LIABILITY ACT FOR RAILWAY EMPLOYEES (45
U.S.C. SECS. 51, 59), NEXT WITH THE MERCHANT MARINE ACT OF 1920 FOR
SEAMEN AND THEIR SURVIVORS (46 U.S.C. SEC. 688), AND AGAIN WITH AN ACT
OF THE SAME YEAR (MARCH 30, 1920, C. 111, SECS. 1, 2, 41 STAT. 537; 46
U.S.C. SECS. 761, 762), NOT LIMITED TO SEAMEN, WHICH STATES THE LEGAL
CONSEQUENCES OF DEATH UPON THE HIGH SEAS. 

AS ALREADY POINTED OUT, THE PERSONAL REPRESENTATIVE OF A SEAMAN
LAYING CLAIM TO DAMAGES UNDER THE MERCHANT MARINE ACT IS TO HAVE THE
BENEFIT OF "ALL STATUTES OF THE UNITED STATES CONFERRING OR REGULATING
THE RIGHT OF ACTION FOR DEATH IN THE CASE OF RAILWAY EMPLOYEES."  46
U.S.C. SEC. 688.  THE STATUTES THUS REFERRED TO AS A STANDARD DISPLAY A
DOUBLE ASPECT.  ONE OF THESE IS VISIBLE IN THE EMPLOYERS' LIABILITY ACT
AS IT STOOD WHEN FIRST ENACTED IN 1908.  UNDER THE LAW AS THEN IN FORCE
(APRIL 22, 1908, C. 149, SEC. 1, 35 STAT. 65; 45 U.S.C. SEC. 51) THE
PERSONAL REPRESENTATIVE DOES NOT STEP INTO THE SHOES OF THE EMPLOYEE,
RECOVERING THE DAMAGES THAT WOULD HAVE BEEN HIS IF HE HAD LIVED.  ON
THE CONTRARY, BY SEC. 1 OF THE STATUTE A NEW CAUSE OF ACTION IS CREATED
FOR THE BENEFIT OF SURVIVORS OR DEPENDENTS OF DESIGNATED CLASSES, THE
RECOVERY BEING LIMITED TO THE LOSSES SUSTAINED BY THEM AS CONTRASTED
WITH ANY LOSSES SUSTAINED BY THE DECEDENT.  FN13  HOWEVER, WITH THE
ADOPTION OF AN AMENDMENT IN 1910(APRIL 5, 1910, C. 143, SEC. 2, 36
STAT. 291; 45 U.S.C. SEC. 59) A NEW ASPECT OF THE STATUTE EMERGES INTO
VIEW.  SECTION 2 AS THEN ENACTED CONTINUES ANY CAUSE OF ACTION
BELONGING TO THE DECEDENT, WITHOUT ABROGATING OR DIMINISHING THE THEN
EXISTING CAUSE OF ACTION FOR THE USE OF HIS SURVIVORS.  FN14  "ALTHOUGH
ORIGINATING IN THE SAME WRONGFUL ACT OR NEGLECT, THE TWO CLAIMS ARE
QUITE DISTINCT, NO PART OF EITHER BEING EMBRACED IN THE OTHER.  ONE IS
FOR THE WRONG TO THE INJURED PERSON AND IS CONFINED TO HIS PERSONAL
LOSS AND SUFFERING BEFORE HE DIED, WHILE THE OTHER IS FOR THE WRONG TO
THE BENEFICIARIES AND IS CONFINED TO THEIR PECUNIARY LOSS THROUGH HIS
DEATH."  FN15  IT IS LOSS OF THIS LAST ORDER, AND NO OTHER, THAT IS THE
SUBJECT OF THE PRESENT SUIT.  SO FAR AS THE RECORD SHOWS, THE SEAMAN
DIED AT ONCE UPON THE SINKING OF THE VESSEL.  IN ANY EVENT THERE IS NO
CLAIM THAT HIS INJURIES WERE NOT IMMEDIATELY FATAL.  FN16  TO WHAT
EXTENT THE PRESENT PROBLEM WOULD BE ALTERED, IF INTERMEDIATE LOSS AND
SUFFERING HAD BEEN MADE THE BASIS OF A RECOVERY, WE HAVE NO OCCASION TO
CONSIDER.  OUR DECISION MUST BE LIMITED TO THE NECESSITIES OF THE CASE
BEFORE US. 

VIEWING THE CAUSE OF ACTION AS ONE TO COMPENSATE A MOTHER FOR THE
PECUNIARY LOSS CAUSED TO HER BY THE NEGLIGENT KILLING OF HER SON, WE
THINK THE MOTHER'S DEATH DOES NOT ABATE THE SUIT, BUT THAT THE
ADMINISTRATOR MAY CONTINUE IT, FOR THE RECOVERY OF HER LOSS UP TO THE
MOMENT OF HER DEATH, THOUGH NOT FOR ANYTHING THEREAFTER,  FN17  THE
DAMAGES WHEN COLLECTED TO BE PAID TO HER ESTATE.  SUCH IS THE RULE IN
MANY OF THE STATE COURTS IN WHICH LIKE STATUTES ARE IN FORCE.  IT IS
THE RULE IN NEW YORK, IN PENNSYLVANIA, IN NEW JERSEY, IN OKLAHOMA, IN
GEORGIA, IN KENTUCKY, IN NORTH CAROLINA, AND UNDER STATUTES SOMEWHAT
DIFFERENT IN CONNECTICUT AND MASSACHUSETTS.  FN18  IT IS ALSO THE RULE
IN THE LOWER FEDERAL COURTS, APPLYING THE STATUTE OF ILLINOIS AS WELL
AS THE ACT OF CONGRESS IN RESPECT OF DEATH UPON THE HIGH SEAS.  FN19
THESE CASES TAKE THE GROUND THAT "THE DAMAGES AWARDED FOR THE NEGLIGENT
ACT ARE SUCH AS RESULT TO THE PROPERTY RIGHTS OF THE PERSON OR PERSONS
FOR WHOSE BENEFIT THE CAUSE OF ACTION WAS CREATED."  FN20  INDEED, EVEN
AT COMMON LAW, SINCE STATUTES ADOPTED IN THE REIGN OF EDWARD III (4
EDW.  III, C. 7; 25 EDW.  III, STAT. 5, C. 5), WHICH WERE EXTENDED
BEYOND THEIR LETTER BY AN EQUITABLE CONSTRUCTION, AN ADMINISTRATOR
MIGHT RECOVER WHERE THE WRONG WAS AN INJURY TO PROPERTY AND NOT AN
INJURY TO THE PERSON.  FN21  THE GENERAL RULE WAS SAID TO BE THAT
"EXECUTORS AND ADMINISTRATORS ARE THE REPRESENTATIVES OF THE TEMPORAL
PROPERTY, THAT IS, THE DEBTS AND GOODS OF THE DECEASED, BUT NOT OF
THEIR WRONGS, EXCEPT WHERE THOSE WRONGS OPERATE TO THE TEMPORAL INJURY
OF THEIR PERSONAL ESTATE."  FN22  WHEN WE REMEMBER THAT UNDER THE DEATH
STATUTES AN INDEPENDENT CAUSE OF ACTION IS CREATED IN FAVOR OF THE
BENEFICIARIES FOR THEIR PECUNIARY DAMAGES, THE CONCLUSION IS NOT
DIFFICULT THAT THE CAUSE OF ACTION ONCE ACCRUED IS NOT DIVESTED OR
EXTINGUISHED BY THE DEATH OF ONE OR MORE OF THE BENEFICIARIES
THEREAFTER, BUT SURVIVES, LIKE A CAUSE OF ACTION FOR INJURY TO A
PROPERTY RIGHT OR INTEREST, TO THE EXTENT THAT THE ESTATE OF THE
DECEASED BENEFICIARY IS PROVED TO BE IMPAIRED.  TO THAT EXTENT, IF NO
FARTHER, A NEW PROPERTY RIGHT OR INTEREST, OR ONE ANALOGOUS THERETO,
HAS BEEN BROUGHT INTO BEING THROUGH LEGISLATIVE ACTION.  TRUE, THERE
ARE DECISIONS UNDER THE DEATH STATUTES OF SOME STATES THAT TEACH A
DIFFERENT DOCTRINE, REFUSING TO PERMIT A RECOVERY BY THE ADMINISTRATOR
AFTER THE BENEFICIARY HAS DIED,  FN23  THOUGH THE RULING HAS BEEN MADE
AT TIMES WITH SCANT DISCUSSION OF THE PROBLEM.  INDEED, THE PROBLEM NOW
BEFORE US WAS NOT ALWAYS PRESENTED TO THE ATTENTION OF THE COURT, FOR
AT TIMES THE DEATH OF THE BENEFICIARY FOLLOWED HARD UPON THE DEATH OF
THE PERSON NEGLIGENTLY KILLED OR THE CLAIM WAS NOT URGED THAT THERE HAD
BEEN DAMAGE IN THE INTERVAL.  WE THINK THE CASES FAVORING SURVIVAL
WITHIN THE LIMITS ALREADY INDICATED ARE SUPPORTED BY PREPONDERANT
AUTHORITY AND ALSO BY THE BETTER REASON. 

NOTHING AT WAR WITH THAT CONCLUSION WILL BE FOUND IN OUR OPINION IN
CHICAGO, BURLINGTON & QUINCY R. CO. V. WELLS-DICKEY TRUST CO., 275 U.S.
161, ON WHICH THE COURT BELOW LEANT HEAVILY IN DECIDING AS IT DID.  THE
SUIT WAS UNDER THE EMPLOYERS' LIABILITY ACT WHICH GIVES A CAUSE OF
ACTION (A) TO THE WIDOW OR CHILDREN; (B) TO THE PARENTS IF NO WIDOW OR
CHILDREN SURVIVE; OR (C) TO DEPENDENT NEXT OF KIN, IF THERE BE NO
SURVIVING WIDOW, CHILD OR PARENT.  A MOTHER SURVIVED THE EMPLOYEE, BUT
DIED BEFORE AN ADMINISTRATOR WAS APPOINTED.  THE HOLDING WAS THAT THE
BENEFICIAL INTEREST DID NOT SHIFT UPON HER DEATH TO MEMBERS OF CLASS
(C).  "THE FAILURE TO BRING THE ACTION IN THE MOTHER'S LIFETIME DID NOT
RESULT IN CREATING A NEW CAUSE OF ACTION AFTER HER DEATH FOR THE
BENEFIT OF THE SISTER."  275 U.S. AT P. 164.  FN24  THE QUESTION WAS
NOT RAISED WHETHER THE DAMAGES, IF ANY, SUFFERED BY THE MOTHER BETWEEN
THE SON'S DEATH AND HER OWN WOULD HAVE BEEN RECOVERABLE, IF PROVED. 
NOR IS THE CASE AT HAND AFFECTED BY STATUTES, INVOKED BY THE
RESPONDENT, WHICH REGULATE THE CONTINUANCE OF A PROCEEDING IN A COURT
OF THE UNITED STATES BY THE SUBSTITUTION OF THE EXECUTOR OR
ADMINISTRATOR OF A PARTY DYING WHILE THE SUIT IS PENDING.  28 U.S.C.
SEC. 778.  THE PRESENT CLAIMANT IS NOT THE ADMINISTRATOR OF THE
DECEASED BENEFICIARY, BUT AN ADMINISTRATOR DE BONIS NON WHO HAS
SUCCEEDED TO THE OFFICE OF THE ORIGINAL ADMINISTRATOR.  FN25  THE ORDER
SUBSTITUTING HIM AS A PARTY WAS MADE WITHOUT OBJECTION, AND HE
CONTINUED IN THE SUIT THEREAFTER AS IF HE HAD FILED A CLAIM ANEW. 

DEATH STATUTES HAVE THEIR ROOTS IN DISSATISFACTION WITH THE ARCHAISMS
OF THE LAW WHICH HAVE BEEN TRACED TO THEIR ORIGIN IN THE COURSE OF THIS
OPINION.  IT WOULD BE A MISFORTUNE IF A NARROW OR GRUDGING PROCESS OF
CONSTRUCTION WERE TO EXEMPLIFY AND PERPETUATE THE VERY EVILS TO BE
REMEDIED.  FN26  THERE ARE TIMES WHEN UNCERTAIN WORDS ARE TO BE WROUGHT
INTO CONSISTENCY AND UNITY WITH A LEGISLATIVE POLICY WHICH IS ITSELF A
SOURCE OF LAW, A NEW GENERATIVE IMPULSE TRANSMITTED TO THE LEGAL
SYSTEM.  "THE LEGISLATURE HAS THE POWER TO DECIDE WHAT THE POLICY OF
THE LAW SHALL BE, AND IF IT HAS INTIMATED ITS WILL, HOWEVER INDIRECTLY,
THAT WILL SHOULD BE RECOGNIZED AND OBEYED."  FN27  ITS INTIMATION IS
CLEAR ENOUGH IN THE STATUTES NOW BEFORE US THAT THEIR EFFECTS SHALL NOT
BE STIFLED, WITHOUT THE WARRANT OF CLEAR NECESSITY, BY THE PERPETUATION
OF A POLICY WHICH NOW HAS HAD ITS DAY.  FN28 

THE DECREE SHOULD BE REVERSED AND THE CAUSE REMANDED FOR FURTHER
PROCEEDINGS IN ACCORD WITH THIS OPINION.  REVERSED. 

FN1  TIFFANY, DEATH BY WRONGFUL ACT, SECS. 3, 6-11; POLLOCK, TORTS,
13TH ED., PP. 62-65. 

FN2  BAKER V. BOLTON, 1 CAMP.  493; INSURANCE CO. V. BRAME, 95 U.S.
754, 756; LINDGREN V. UNITED STATES, 281 U.S. 38, 47; CORTES V.
BALTIMORE INSULAR LINE, 287 U.S. 367, 371; POLLOCK, TORTS, SUPRA;
TIFFANY, SUPRA.    FN3  BOWEN AND FRY, L.J.J., FINLAY V. CHIRNEY,
(1888) 20 Q.B.D. 494, 502; POLLOCK, SUPRA; GOUDY, TWO ANCIENT BROCARDS,
IN ESSAYS IN LEGAL HISTORY, ED. BY VINOGRADOFF, P. 215; RADIN, ANGLO
AMERICAN LEGAL HISTORY, P. 413. 

FN4  FIFOOT, ENGLISH LAW AND ITS BACKGROUND, PP. 167, 168.  CF.
BUCKLAND, A TEXT-BOOK OF ROMAN LAW, 2ND ED., P. 685; BUCKLAND & MCNAIR,
ROMAN LAW AND COMMON LAW, P. 288; ALLEN, LAW IN THE MAKING, 2ND ED.,
PP. 196-198.    FN5  FIFOOT, SUPRA; GOUDY, SUPRA, P. 218. 

FN6  FIFOOT, SUPRA; GOUDY, SUPRA, P. 218, CITING DIG.  IX, 3, 3; IX,
3, 1, SEC. 5:  "LIBERUM CORPUS NULLAM RECIPIT AESTIMATIONEM." 

FN7  PINCHON'S CASE, 9 REP. 86 B; GOUDY, SUPRA, P. 226; ALLEN,
SUPRA. 

FN8  HOLDSWORTH, A HISTORY OF ENGLISH LAW, VOL. 3, PP. 333, 334; VOL.
2, P. 363. 

FN9  ADMIRALTY COMMISSIONERS V. S.S. AMERIKA, (1917) A.C. 38, 43, 47,
60. 

FN10  HOLDSWORTH, SUPRA, VOL. 3, APPENDIX VIII; ALSO VOL. 3, PP. 332
336.  CF. POLLOCK, SUPRA; OSBORN V. GILLETT, L.R. 8 EX. 88, 96, 97;
CAREY V. BERKSHIRE R. CO., 1 CUSH.  475, 477, 478; SHIELDS V. YONGE, 15
GA. 349, 353; HYATT V. ADAMS, 16 MICH. 180, 187, 188; GROSSO V. D.L. &
W.R. CO., 50 N.J.L. 317, 320; 13 ATL. 233. 

FN11  HIGGINS V. BUTCHER, SUPRA; ADMIRALTY COMMISSIONERS V. S.S.
AMERIKA, SUPRA; TIFFANY, SUPRA; HOLDSWORTH, SUPRA, VOL. 3, PP. 332
336. 

FN12  TIFFANY, SUPRA, PP. XVIII TO XLIII; CF. 44 HARV. L. REV. 980. 

FN13  MICHIGAN CENTRAL R. CO. V. VREELAND, 227 U.S. 59, 68; GULF,
COLORADO & SANTA FE RY. CO. V. MCGINNIS, 228 U.S. 173, 175; NORTH
CAROLINA R. CO. V. ZACHARY, 232 U.S. 248, 256-257; CHESAPEAKE & OHIO
RY. CO. V. KELLY, 241 U.S. 485, 489. 

FN14  ST. LOUIS, I.M. & S. RY. CO. V. CRAFT, 237 U.S. 648, 657; GREAT
NORTHERN RY. CO. V. CAPITAL TRUST CO., 242 U.S. 144, 147. 

FN15  ST. LOUIS, I.M. & S. RY. CO. V. CRAFT, SUPRA, P. 658. 

FN16  CF. GREAT NORTHERN RY. CO. V. CAPITAL TRUST CO., SUPRA. 

FN17  COOPER V. SHORE ELECTRIC CO., 63 N.J.L. 558; 44 ATL. 633; SIDER
V. GENERAL ELECTRIC CO., 238 N.Y. 64; 143 N.E. 792. 

FN18  MEEKIN V. BROOKLYN HEIGHTS R. CO., 164 N.Y. 145; 58 N.E. 50;
SIDER V. GENERAL ELECTRIC CO., SUPRA; FITZGERALD V. EDISON ELECTRIC
ILLUMINATING CO., 207 PA. 118, 122; 56 ATL. 350; COOPER V. SHORE
ELECTRIC CO., SUPRA; SHAWNEE V. CHEEK, 41 OKLA. 227, 252; 137 PAC. 724;
FRAZIER V. GEORGIA R.R. & BANKING CO., 101 GA. 77, 78; 28 S.E.
662(SEMBLE); KENTUCKY UTILITIES CO. V. MCCARTY'S ADMR., 169 KY. 38, 46;
183 S.W. 237; NEILL V. WILSON, 146 N.C. 242; 59 S.E. 674; WALDO V.
GOODSELL, 33 CONN. 432; JOHNSTON V. BAY STATE ST. RY. CO., 222 MASS.
583, 584; 111 N.E. 91; DE MARCO V. PEASE, 253 MASS. 499, 508; 149 N.E.
208. 

FN19  UNION STEAMBOAT CO. V. CHAFFIN'S ADMRS., 204 FED. 412, 417; THE
CITY OF ROME, 48 F.(2D) 333, 341, 342. 

FN20  MEEKIN V. BROOKLYN HEIGHTS R. CO., SUPRA, P. 153. 

FN21  WILLIAMS, EXECUTORS AND ADMINISTRATORS, 7TH AM. ED., VOL. 2,
PP. 4, 5; CHAMBERLAIN V. WILLIAMSON, 2 M. & S. 408, 412; LEGGOTT V.
GREAT NORTHERN RY. CO., (1876) 1 Q.B.D. 599, 606; PULLING V. GREAT
EASTERN RY. CO., (1882) 9 Q.B.D. 110. 

FN22  CHAMBERLAIN V. WILLIAMSON, SUPRA, P. 415; WHITFORD V. PANAMA R.
CO., 23 N.Y. 465, 476. 

FN23  SCHMIDT V. MENASHA WOODENWARE CO., 99 WIS. 300; 74 N.W. 797;
GILKESON V. MISSOURI PACIFIC RY. CO., 222 MO. 173; 121 S.W. 138;
RAILROAD V. BEAN, 94 TENN. 388; 29 S.W. 370; HARVEY V. BALTIMORE & OHIO
R. CO., 70 MD. 319; 17 ATL. 88; DOYLE V. RAILROAD CO., 81 OHIO ST. 184;
90 N.E. 165; HUBERWALD V. ORLEANS R. CO., 50 LA. ANN. 477; 23 SO. 474;
TAYLOR V. WESTERN PACIFIC R. CO., 45 CAL. 323; WABASH R. CO. V.
GRETZINGER, 182 IND. 155; 104 N.E. 69(SEMBLE).  CF. SANDERS' ADMX.  V.
LOUISVILLE & N.R. CO., 111 FED. 708, 709; MCHUGH V. GRAND TRUNK RY.
CO., (1901) 2 ONT.  L. REP. 600. 

AT TIMES STATE DECISIONS HAVE DRAWN A DISTINCTION BETWEEN THE DEATH
OF A BENEFICIARY BEFORE AND DURING SUIT.  SEE, E.G., FRAZIER V. GEORGIA
R.R. & BANKING CO., SUPRA.  THE VALIDITY OF THAT DISTINCTION IS
IRRELEVANT TO THE CASE AT HAND.  CF. HOWEVER, CHICAGO, B. & Q.R. CO. V.
WELLS-DICKEY TRUST CO., 275 U.S. 161, 163; READING CO. V. KOONS, 271
U.S. 58. 

FN24  CF. WILCOX V. BIERD, 330 ILL. 571; ROGERS V. FORT WORTH & D.C.
RY. CO., 91 S.W.(2D) 458(TEX.  CIV.  APP.). 

FN25  CF. THOMPSON V. UNITED STATES, 103 U.S. 480, 483. 

FN26  CF. THE ARIZONA V. ANELICH, 298 U.S. 110, 123; BEADLE V.
SPENCER, 298 U.S. 124, 128. 

FN27  PER HOLMES, CIRCUIT JUSTICE, IN JOHNSON V. UNITED STATES, 163
FED. 30, 32.  CF. GOOCH V. OREGON SHORT LINE R. CO., 258 U.S. 22, 24;
SOUTH & CENTRAL AMERICAN COMMERCIAL CO. V. PANAMA R. CO., 237 N.Y.,
287, 291; 142 N.E. 666. 

FN28  THE ARIZONA V. ANELICH, SUPRA; CORTES V. BALTIMORE INSULAR
LINE, SUPRA; WARNER V. GOLTRA, 293 U.S. 155. 
..END :










HELVERING V. MIDLAND INS. CO., 300 U.S. 216 


NO. 257.  ARGUED JANUARY 7, 1937.  - DECIDED FEBRUARY 15, 1937.  - 83
F.(2D) 629, REVERSED. 


1.  WHERE A LIFE INSURANCE COMPANY, AT FORECLOSURE SALE, BID THE
PRINCIPAL OF ITS MORTGAGE LOAN PLUS ACCRUED INTEREST AND TOOK OVER THE
PROPERTY IN SATISFACTION OF THE WHOLE DEBT WITHOUT PAYMENT AND
REPAYMENT OF ANY CASH, HELD THAT THE AMOUNT OF THE INTEREST WAS TAXABLE
AS INCOME "RECEIVED DURING THE TAXABLE YEAR FROM INTEREST," REVENUE ACT
1928, SEC. 202(A), EVEN THOUGH THE PROPERTY, WHEN SO ACQUIRED, WAS
WORTH LESS THAN THE AMOUNT OF THE PRINCIPAL.  P. 222. 

THE BID WAS MADE WITHOUT REGARD TO THE VALUE OF THE PROPERTY
APPARENTLY FOR THE PURPOSE OF AVOIDING LOSS OF INVESTMENT IN CASE OF
REDEMPTION BY THE MORTGAGOR.  THE PROPERTY WAS CARRIED ON THE COMPANY'S
BOOKS AS AN ASSET, VALUED AT THE PRINCIPAL OF THE LOAN PLUS CERTAIN
EXPENSES.  THE INTEREST WAS NOT ENTERED EITHER AS ASSET OR AS INCOME. 

2.  THE TERM "INTEREST" IN THE ACT, SUPRA, IS USED GENERICALLY.  P.
223. 

3.  A RECEIPT OF INTEREST IS TAXABLE AS INCOME, WHETHER PAID IN CASH
OR BY CREDIT.  ID. 

4.  BOOKKEEPING ENTRIES, THOUGH IN SOME CIRCUMSTANCES OF EVIDENTIAL
VALUE, ARE NOT DETERMINATIVE OF TAX LIABILITY.  ID. 

5.  A MORTGAGEE WHO, AT FORECLOSURE SALE, ACQUIRES THE PROPERTY BY
BID OF PRINCIPAL AND INTEREST, ACQUIRES THE SAME RIGHTS QUA PURCHASER
AS THE STRANGER WHO BUYS FOR CASH, AND IN EITHER CASE THE DEBT,
INCLUDING THE INTEREST, IS PAID.  ID. 

6.  WHERE THE LEGAL EFFECT OF A TRANSACTION FITS THE PLAIN LETTER OF
A TAX ACT, THE TRANSACTION IS INCLUDED UNLESS A DEFINITE INTENT TO
EXCLUDE IT IS CLEARLY REVEALED IN THE ACT OR ITS HISTORY.  P. 224. 

7.  TAX LAWS ARE CONSTRUED WITH A VIEW TO THEIR EFFICIENT
ADMINISTRATION.  P. 225. 

8.  THE TAX IN THIS CASE IS NOT INCONSISTENT WITH RIGHTS OF
MORTGAGEES AS DEFINED IN LOUISVILLE JOINT STOCK LAND BANK V. RADFORD,
295 U.S. 555.  P. 226. 

HELVERING, COMMISSIONER OF INTERNAL REVENUE, V. MIDLAND MUTUAL LIFE
INSURANCE CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, 299 U.S. 527, TO REVIEW A JUDGMENT REVERSING A DECISION
OF THE BOARD OF TAX APPEALS SUSTAINING AN INCREASED INCOME TAX
ASSESSMENT. 

THE FAIR MARKET VALUE OF THE PROPERTY, AT THE TIME THE COMPANY
ACQUIRED IT, WAS ONLY $114,500, WHICH WAS ABOUT $9,000 LESS THAN THE
PRINCIPAL DEBT, EXCLUSIVE OF ALL INTEREST.  THIS EXPRESS FINDING OF THE
BOARD OF TAX APPEALS, IN EXACT ACCORD WITH THE UNCONTRADICTED
TESTIMONY, WAS AN EXPRESS FINDING "UPON THE ULTIMATE QUESTION OF FACT
UPON WHICH THE RIGHTS OF THE PARTIES DEPEND," BOTANY MILLS V. UNITED
STATES, 278 U.S. 282, 290, WHICH IS NOT OPEN TO REVIEW HERE.  BOTANY
MILLS V. UNITED STATES, SUPRA; PHILLIPS V. COMMISSIONER, 283 U.S. 589,
600; BURNET V. LEININGER, 285 U.S. 136, 138-9. 

THE COMPANY DID NOT "RECEIVE," IN CASH OR IN PROPERTY, THE ACCRUED
INTEREST OR ANY PART THEREOF AND, THEREFORE, THE AMOUNT WAS NOT "GROSS
INCOME" UNDER SEC. 202, REVENUE ACT OF 1928. 

INDEED, THE COMPANY ACTUALLY LOST NEARLY $9,000 OF ITS PRINCIPAL AND
ITS ENTIRE $15,538.60 ACCRUED INTEREST - AN ACTUAL $24,462.17 TOTAL
MONEY LOSS ON ITS MORTGAGE INVESTMENT. 

THE COMPANY DID NOT CAPITALIZE ANY PART OF THE DELINQUENT INTEREST;
DID NOT TREAT IT AS INCOME IN ANY WAY; DID NOT, DIRECTLY OR INDIRECTLY,
CARRY IT AS ANY PART OF THE COST OF THE PROPERTIES OR AS AN ASSET; AND
DID NOT INCLUDE SUCH INTEREST AS AN ASSET, OR OTHERWISE, IN ITS ANNUAL
STATEMENT OR IN ITS REPORTS TO THE INSURANCE DEPARTMENT. 

A "BID" PRICE IS NOT CONCLUSIVE AS TO "FAIR VALUE."  BALLENTYNE V.
SMITH, 205 U.S. 285.  THE BIDS OF A MORTGAGEE AND A THIRD PARTY OCCUPY
ESSENTIALLY DIFFERENT RELATIONS TO THE PROPERTY'S "FAIR VALUE."  THE
TWO SITUATIONS ARE VERY DIFFERENT.  LOUISVILLE BANK V. RADFORD, 295
U.S. 555, 594. 

THE WHOLE POINT OF THE RADFORD CASE, SUPRA, WAS THAT NO MATTER WHAT
THE FAIR OR MARKET VALUE WAS, THE MORTGAGEE HAD THE RIGHT TO FULL CASH
PAYMENT, WITH INTEREST, OR TO TAKE THE PROPERTY ITSELF. 

SO HERE.  THE COMPANY WAS UNABLE TO COLLECT ITS DEBT WITH INTEREST IN
CASH.  CONSEQUENTLY, IT TOOK THE PROPERTY; BUT THE ACT OF TAKING DID
NOT ESTABLISH - CERTAINLY DID NOT CONCLUSIVELY ESTABLISH - WHAT ITS
"FAIR VALUE" WAS. 

WHEN A MORTGAGEE "BUYS IN" PROPERTY, HE DOES NOT PAY IN CASH AS A
STRANGER DOES; NEITHER DOES HE PAY HIS BID WITH ANYTHING THAT IS WORTH
IN CASH EVEN THE AMOUNT OF THE BID - HE SIMPLY GETS THE THING PLEDGED,
THROUGH A JUDICIAL FORECLOSURE SALE, INSTEAD OF BY A STRICT
FORECLOSURE. 

IF, IN ORDER TO AVOID FORECLOSURE EXPENSES, ETC., THE MORTGAGOR
VOLUNTARILY CONVEYS THE PROPERTY TO THE MORTGAGEE IN FULL SATISFACTION
OF THE DEBT AND INTEREST, AND THE PROPERTY IS WORTH LESS THAN THE DEBT,
THE COMMISSIONER NOW CONCEDES THAT NO INCOME HAS BEEN RECEIVED, AND
THAT THE MORTGAGEE HAS NOT "RECEIVED" ANY INTEREST.  HELVERING V.
MISSOURI STATE LIFE INS. CO., 78 F.(2D) 778, 780, REVERSING THE BOARD
OF TAX APPEALS' DECISION (29 B.T.A. 408) IN FAVOR OF THE COMMISSIONER
ON THAT POINT.  CF. PRUDENTIAL INSURANCE CO., 33 B.T.A. 334; AMERICAN
CENTRAL LIFE INS. CO., 30 B.T.A. 1190(A). 

GAIN OR PROFIT IS THE ESSENTIAL IDEA OF "INCOME"; AND IN DETERMINING
WHAT CONSTITUTES "INCOME," SUBSTANCE AND FACT RATHER THAN FORM ARE TO
BE GIVEN CONTROLLING WEIGHT. 

THE STABILITY OF LIFE INSURANCE IS BASED UPON THE ASSUMPTION THAT THE
COMPANY WILL EARN COMPOUND INTEREST AT THE RATE ASSUMED IN THE
CALCULATION OF THE PREMIUM. 

THE COMMISSIONER'S THEORY THAT A LIFE INSURANCE COMPANY "RECEIVES"
INTEREST, WHEN, IN POINT OF FACT, IT CANNOT COLLECT THE INTEREST FROM
THE MORTGAGORS AND HAS TO TAKE OVER REAL ESTATE OF A "FAIR MARKET
VALUE" GREATLY LESS THAN EVEN THE PRINCIPAL OF THE DEBT (THEREBY LOSING
ALL OF ITS INTEREST), IS OBVIOUSLY UNTENABLE, BECAUSE THE COMPANY COULD
NOT PAY ITS POLICY CLAIMS WITH SUCH NON-EXISTENT PURELY THEORETICAL
INTEREST. 

DISTINGUISHING:  MISSOURI STATE LIFE INS. CO. V. COMMISSIONER, 78
F.(2D) 778; AND NATIONAL LIFE INS. CO. V. UNITED STATES, 4 F.SUPP. 
1000. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

SINCE 1921, THE REVENUE ACTS HAVE MADE THIS PROVISION FOR TAXING THE
INCOME OF LIFE INSURANCE COMPANIES.  FN1  THE GROSS INCOME IS LIMITED
TO THAT "RECEIVED DURING THE TAXABLE YEAR FROM INTEREST, DIVIDENDS, AND
RENTS."  UPON THE NET INCOME, ASCERTAINED BY MAKING PRESCRIBED
DEDUCTIONS, THE TAX UNDER THE ACT HERE APPLICABLE IS 12 PER CENT.  FN2
THE GENERAL PROVISIONS OF THE REVENUE ACTS CONCERNING CAPITAL "GAINS
AND LOSSES" AND "BAD DEBTS" ARE NOT APPLICABLE TO LIFE INSURANCE
COMPANIES.  FN3 

IN 1930, THE MIDLAND MUTUAL LIFE INSURANCE COMPANY OF OHIO CAUSED TO
BE FORECLOSED SEVERAL MORTGAGES ON REAL ESTATE GIVEN TO SECURE LOANS
WHICH WERE IN DEFAULT.  IT WAS THE ONLY BIDDER; ITS BID WAS ACCEPTED;
THE PROPERTY WAS CONVEYED TO IT; AND IN NO CASE WAS THERE REDEMPTION. 
AT EACH FORECLOSURE SALE THE COMPANY HAD BID AN AMOUNT WHICH INCLUDED
INTEREST AS WELL AS THE PRINCIPAL.  THE INTEREST SO BID, AGGREGATING ON
THE FORECLOSED MORTGAGES $5,456.99, WAS NOT INCLUDED IN THE COMPANY'S
INCOME TAX RETURN.  THE COMMISSIONER OF INTERNAL REVENUE DECIDED THAT
THIS INTEREST WAS TAXABLE AND, ACCORDINGLY, DETERMINED A DEFICIENCY IN
THE COMPANY'S INCOME TAX FOR 1930.  HIS DETERMINATION WAS APPROVED BY
THE BOARD OF TAX APPEALS.  THE CIRCUIT COURT OF APPEALS REVERSED THE
DECISION OF THE BOARD, 83 F.(2D) 629.  WE GRANTED CERTIORARI BECAUSE OF
CONFLICT WITH HELVERING V. MISSOURI STATE LIFE INS. CO., 78 F.(2D) 778,
AND NATIONAL LIFE INS. CO. V. UNITED STATES, 4 F.SUPP.  1000. 

THE FOLLOWING ADDITIONAL FACTS STIPULATED WERE ADOPTED BY THE BOARD
OF TAX APPEALS AS ITS FINDINGS:  THE COMPANY KEPT ITS BOOKS ON A
"CALENDAR YEAR" "CASH RECEIPTS AND DISBURSEMENTS" BASIS, ENTERING ONLY
PAYMENTS OF INTEREST ACTUALLY MADE TO IT DURING THE YEAR.  UPON ITS
ACQUIRING TITLE TO THE FORECLOSED PROPERTIES, THE INVESTMENTS WERE
TRANSFERRED ON ITS BOOKS FROM THE MORTGAGE LOAN ACCOUNT TO THE REAL
ESTATE ACCOUNT AND WERE CARRIED THEREON AS ASSETS AT AMOUNTS WHICH WERE
EQUAL TO THE PRINCIPAL OF THE LOANS SECURED BY THE MORTGAGES PLUS ANY
DISBURSEMENTS MADE FOR TAXES, COURT COSTS, ATTORNEYS FEES OR INSURANCE
PREMIUMS.  THE AMOUNT OF INTEREST INCLUDED IN THE BIDS ON FORECLOSURE
WAS NOT CARRIED ON THE BOOKS AS PART OF THE COST OF THE PROPERTIES OR
AS AN ASSET.  NOR WAS IT ENTERED ON THE BOOKS OR LIKEWISE TREATED AS
INCOME.  ALL OF THE PROPERTIES HERE INVOLVED WERE LOCATED IN STATES
WHERE A PERIOD OF REDEMPTION FROM FORECLOSURE IS ALLOWED.  THE COMPANY
ISSUED TO ITS REPRESENTATIVES HAVING CHARGE OF FORECLOSURES IN THOSE
STATES GENERAL INSTRUCTIONS TO BID ON ITS BEHALF SUCH SUMS AS WOULD
ENABLE THE COMPANY TO REALIZE NO LOSS ON ACCOUNT OF ITS INVESTMENT IN
CASE OF REDEMPTION.  THE BIDS HERE INVOLVED WERE MADE PURSUANT TO THOSE
INSTRUCTIONS, WITHOUT REGARD TO THE THEN ACTUAL VALUE OF THE MORTGAGE
PROPERTY.  FN4 

THE COMPANY INTRODUCED EVIDENCE THAT THE FAIR MARKET VALUE OF THE
PROPERTIES WAS, AT THE DATES OF FORECLOSURE AND OF ACQUIRING TITLE,
LESS THAN THE AMOUNT OF THE PRINCIPAL DUE ON THE MORTGAGES.  THIS
EVIDENCE WAS DEEMED BY THE BOARD IMMATERIAL; AND IT ACCORDINGLY MADE NO
FINDING AS TO FAIR MARKET VALUE.  FN5 

FIRST.  THE COMPANY CONTENDS THAT IT DID NOT "RECEIVE" THE
$5,456.99(OR ANY PART THEREOF) EITHER IN CASH OR IN PROPERTY; AND,
HENCE, THAT IT WAS NOT "GROSS INCOME."  CONFESSEDLY NO INTEREST WAS
RECEIVED IN CASH.  THE COMPANY INSISTS THAT NONE WAS RECEIVED IN
PROPERTY.  IT ARGUES THAT ITS BID MAY NOT BE TAKEN AS CONCLUSIVE
EVIDENCE OF THE VALUE OF THE PROPERTY, INVOKING BALLENTYNE V. SMITH,
205 U.S. 285; THAT THE BOARD'S REFUSAL TO CONSIDER THE EVIDENCE AS TO
VALUE REQUIRES US TO HOLD THAT THE REAL ESTATE ACQUIRED ON FORECLOSURE
WAS OF A FAIR VALUE LESS THAN THE AMOUNT OF THE PRINCIPAL OF THE
MORTGAGE DEBT; THAT THE PROCEEDS OF A MORTGAGE SALE MUST BE APPLIED
FIRST TO THE SATISFACTION OF THE PRINCIPAL BEFORE INCOME MAY BE HELD
RECEIVED, CITING DOYLE V. MITCHELL BROS. CO., 247 U.S. 179, 185; AND
THAT SINCE THE VALUE DID NOT EQUAL THE PRINCIPAL, THERE WERE NO
PROCEEDS OF THE SALES APPLICABLE TO THE INTEREST, HENCE, NO TAXABLE
INCOME.  IN SUPPORT OF THIS ARGUMENT, THE COMPANY POINTS TO THE FACT
THAT IT DID NOT, ON ITS BOOKS, TREAT THE DELINQUENT INTEREST AS INCOME;
DID NOT, DIRECTLY OR INDIRECTLY, CARRY THE INTEREST AS PART OF THE COST
OF THE PROPERTIES OR AS AN ASSET; AND DID NOT INCLUDE THE INTEREST AS
AN ASSET IN ITS ANNUAL STATEMENT OR IN ITS REPORTS TO INSURANCE
DEPARTMENTS. 

THE ARGUMENTS REST UPON A MISCONCEPTION.  THE TERMS "INTEREST,"
"DIVIDENDS," AND "RENTS," EMPLOYED IN THE STATUTE SIMPLY AND WITHOUT
QUALIFICATION OR ELABORATION, WERE PLAINLY USED BY CONGRESS IN THEIR
GENERIC MEANINGS, AS BROADLY DESCRIPTIVE OF CERTAIN KINDS OF "INCOME." 
COMPARE LYNCH V. HORNBY, 247 U.S. 339, 344; HELVERING V. STOCKHOLMS
ENSKILDA BANK, 293 U.S. 84, 86.  WE CANNOT SAY THAT CONGRESS DID NOT
INTEND TO INCLUDE IN ITS DEFINITION A CASE LIKE THE PRESENT MERELY
BECAUSE THE TAXPAYER RECEIVED A CREDIT RATHER THAN MONEY OR OTHER
TANGIBLE PROPERTY.  COMPARE RAYBESTOS-MANHATTAN, INC. V. UNITED STATES,
296 U.S. 60, 62, 64.  A RECEIPT OF INTEREST IS TAXABLE AS INCOME
WHETHER PAID IN CASH OR BY A CREDIT.  COMPARE OLD COLONY TRUST CO. V.
COMMISSIONER, 279 U.S. 716; UNITED STATES V. BOSTON & MAINE R.R., ID.,
732.  THIS CREDIT, IT IS TRUE, WAS NOT ENTERED ON THE TAXPAYER'S BOOKS
AS INTEREST OR AS AN ASSET.  BUT BOOK-KEEPING ENTRIES, THOUGH IN SOME
CIRCUMSTANCES OF EVIDENTIAL VALUE, ARE NOT DETERMINATIVE OF TAX
LIABILITY.  COMPARE DOYLE V. MITCHELL BROS. CO., 247 U.S. 179, 187. 
THE INTENT TO USE THE FULL EXTENT OF POWER BEING CLEARLY EVIDENT, WE
MUST NOT CONFINE THE LEGISLATION WITHIN NARROWER FORMS THAN THE
STATUTORY LANGUAGE WOULD INDICATE.  COMPARE IRWIN V. GAVIT, 268 U.S.
161, 166; HELVERING V. STOCKHOLMS ENSKILDA BANK, SUPRA, 89. 

SECOND.  THE COMPANY ARGUES THAT UNCONTRADICTED EVIDENCE SHOWS THE
FAIR MARKET VALUE OF THE MORTGAGED PROPERTIES TO HAVE BEEN LESS THAN
THE PRINCIPAL OF THE DEBTS AND THAT THEREFORE THE INTEREST PAID WAS NOT
INCOME WITHIN THE MEANING OF THE ACT.  A MORTGAGEE WHO, AT FORECLOSURE
SALE, ACQUIRES THE PROPERTY PURSUANT TO A BID OF THE PRINCIPAL AND
ACCRUED INTEREST IS, AS PURCHASER AND GRANTEE, IN A POSITION NO
DIFFERENT FROM THAT OF A STRANGER WHO ACQUIRES THE PROPERTY ON A BID OF
LIKE AMOUNT.  IT IS TRUE THAT THE LATTER WOULD BE OBLIGED TO PAY IN
CASH THE AMOUNT OF HIS BID, WHILE THE FORMALITY OF PAYMENT IN CASH IS
ORDINARILY DISPENSED WITH WHEN THE MORTGAGEE ACQUIRES THE PROPERTY ON
HIS OWN BID.  BUT THE RIGHTS ACQUIRED QUA PURCHASER ARE THE SAME IN
EITHER CASE; AND, LIKEWISE, THE LEGAL EFFECT UPON THE MORTGAGE DEBT IS
THE SAME.  IN EACH CASE THE DEBT, INCLUDING THE INTEREST ACCRUED, IS
PAID.  WHERE THE STRANGER MAKES THE PURCHASE, THE DEBT IS DISCHARGED BY
A PAYMENT IN CASH; WHERE THE MORTGAGEE PURCHASES THE PROPERTY, THE DEBT
IS DISCHARGED BY MEANS OF A CREDIT.  THE AMOUNT SO CREDITED TO THE
MORTGAGOR AS INTEREST PAID WOULD BE AVAILABLE TO HIM AS A DEDUCTION IN
MAKING HIS OWN INCOME TAX RETURNS.  FN6  IT WOULD BE STRANGE IF THE SUM
DEDUCTIBLE BY THE MORTGAGOR DEBTOR WERE NOT CHARGEABLE TO THE MORTGAGE
CREDITOR AS INCOME RECEIVED.  WHERE THE LEGAL EFFECT OF A TRANSACTION
FITS THE PLAIN LETTER OF THE STATUTE, THE TAX IS HELD PAYABLE, UNLESS
THERE IS CLEARLY REVEALED IN THE ACT ITSELF OR IN ITS HISTORY A
DEFINITE INTENTION TO EXCLUDE SUCH TRANSACTIONS FROM THE OPERATION OF
ITS APPLICABLE LANGUAGE.  SEE CENTRAL NATIONAL BANK V. UNITED STATES,
137 U.S. 355, 364; FN7  TREAT V. WHITE, 181 U.S. 264, 268; PROVOST V.
UNITED STATES, 269 U.S. 443, 456, 457, 458; OLD COLONY R. CO. V.
COMMISSIONER, 284 U.S. 552, 560, 561.  RESPONDENT HERE MAKES NO SUCH
SHOWING. 

THIRD.  THE COMPANY ARGUES THAT TAXATION IS A PRACTICAL MATTER; THAT
WE SHOULD BE GOVERNED BY REALITIES; THAT THE REALITY IS, THAT ALL THE
COMPANY GOT WAS THE PROPERTY; AND THAT THE PROPERTY WAS WORTH LESS THAN
THE PRINCIPAL OF THE DEBT.  THE "REALITY" OF THE DEAL HERE INVOLVED
WOULD SEEM TO BE THAT RESPONDENT VALUED THE PROTECTION OF THE HIGHER
REDEMPTION PRICE AS WORTH THE DISCHARGE OF THE INTEREST DEBT FOR WHICH
IT MIGHT HAVE OBTAINED A JUDGMENT.  MOREOVER, THE COMPANY'S ARGUMENT
IGNORES THE NEEDS OF AN EFFICIENT SYSTEM OF TAXATION.  THE
ADMINISTRATION OF THE INCOME TAX LAW WOULD BE SERIOUSLY BURDENED IF IT
WERE HELD THAT WHEN A MORTGAGEE BIDS IN THE PROPERTY FOR A SUM
INCLUDING UNPAID INTEREST, HE MAY NOT BE TAXED ON THE INTEREST RECEIVED
EXCEPT UPON AN INQUIRY INTO THE PROBABLE FAIR MARKET VALUE OF THE
PROPERTY."  FN8  AT BEST, EVIDENCE OF VALUE IS LARGELY A MATTER OF
OPINION, ESPECIALLY AS TO REAL ESTATE."  MONTANA RAILWAY CO. V. WARREN,
137 U.S. 348, 353.  THERE IS NOTHING UNFAMILIAR IN TAXING ON THE BASIS
OF THE LEGAL EFFECT OF A TRANSACTION.  INCOME MAY BE REALIZED UPON A
CHANGE IN THE NATURE OF LEGAL RIGHTS HELD, THOUGH THE PARTICULAR
TAXPAYER HAS ENJOYED NO ADDITION TO HIS ECONOMIC WORTH.  COMPARE LYNCH
V. HORNBY, 247 U.S. 339, 344, 346; UNITED STATES V. PHELLIS, 257 U.S.
156, 170, 171; MARR V. UNITED STATES, 268 U.S. 536, 540; BURNET V.
COMMONWEALTH IMPROVEMENT CO., 287 U.S. 415, 419, 420.  "THE INCOME TAX
LAWS DO NOT PROFESS TO EMBODY PERFECT ECONOMIC THEORY.  THEY IGNORE
SOME THINGS THAT EITHER A THEORIST OR A BUSINESS MAN WOULD TAKE INTO
ACCOUNT IN DETERMINING THE PECUNIARY CONDITION OF THE TAXPAYER."  WEISS
V. WIENER, 279 U.S. 333, 335.  COMPARE NICOL V. AMES, 173 U.S. 509,
516; TYLER V. UNITED STATES, 281 U.S. 497, 503.  FN9    FOURTH.  THE
COMPANY CONTENDS THAT TO TAX THE MORTGAGEE AS UPON INTEREST RECEIVED IS
INCONSISTENT WITH THE RULE DECLARED IN LOUISVILLE JOINT STOCK LAND BANK
V. RADFORD, 295 U.S. 555, 594, THAT THE MORTGAGEE IS ENTITLED TO HAVE
"THE MORTGAGED PROPERTY DEVOTED PRIMARILY TO THE SATISFACTION OF THE
DEBT, EITHER THROUGH RECEIPT OF THE PROCEEDS OF A FAIR COMPETITIVE SALE
OR BY TAKING THE PROPERTY ITSELF."  THE CHARGE OF INCONSISTENCY IS
UNFOUNDED.  THE COMPANY EXERCISED ITS RIGHT TO HAVE A SALE.  AT THE
SALE, IT WAS FREE EITHER TO BID OR TO REFRAIN FROM BIDDING.  IF IT BID,
IT WAS FREE TO BID SUCH SUM AS IT PLEASED.  IT CHOSE TO BID THE FULL
AMOUNT OF PRINCIPAL AND INTEREST.  THUS IT OBTAINED, IN LEGAL
CONTEMPLATION, FULL PAYMENT OF THE INTEREST AS WELL AS THE PRINCIPAL. 
TO TAX THE COMPANY UPON THE FULL AMOUNT OF INTEREST RECEIVED AS A
RESULT OF ITS OWN BID IN NO WAY IMPAIRS ITS RIGHTS AS MORTGAGEE. 
COMPARE TEXAS & PACIFIC RY. CO. V. UNITED STATES, 286 U.S. 285, 289. 
IF THE BID HAD BEEN INSUFFICIENT TO YIELD FULL PAYMENT OF THE MORTGAGE
DEBT, PRINCIPAL AND INTEREST, THE COMPANY WOULD HAVE BEEN ENTITLED TO A
JUDGMENT FOR THE DEFICIENCY.  IF THE COMPANY HAD REFRAINED FROM
BIDDING, AND A STRANGER HAD BID MORE THAN THE PRINCIPAL, THE COMPANY
WOULD OBVIOUSLY HAVE BEEN TAXABLE UPON THE EXCESS UP TO THE AMOUNT OF
THE INTEREST DUE.  PERHAPS IT WAS THE COMPANY'S CUSTOM OF BIDDING THE
FULL AMOUNT OF PRINCIPAL AND INTEREST WHICH DETERRED BIDDING BY
OTHERS.  REVERSED. 

FN1  SEE NATIONAL LIFE INSURANCE CO. V. UNITED STATES, 277 U.S. 508,
522. 

FN2  REVENUE ACT OF 1928, SEC. 201(B)(1), 45 STAT. 791, 842. 

FN3  COMPARE SECS. 244(A), 245(A), OF THE REVENUE ACTS OF 1921, 42
STAT. 227, 261; 1924, 43 STAT. 253, 289; 1926, 44 STAT. 9, 47; SECS.
202(A), 203(A), OF THE REVENUE ACTS OF 1928, 45 STAT. 791, 842; 1932,
47 STAT. 169, 224; 1934, 48 STAT. 680, 731, 732; 1936, 49 STAT. 1648,
1710.  SEE HELVERING V. INDEPENDENT LIFE INSURANCE CO., 292 U.S. 371,
377, 379; U.S. TREAS. REG. 74, ART. 951. 

FN4  A LARGE MAJORITY OF THE PROPERTIES WERE LOCATED IN MICHIGAN.  BY
MICHIGAN LAW, IT IS SAID, THE MORTGAGOR IS ALLOWED ONE YEAR FROM THE
DATE OF THE FORECLOSURE SALE WITHIN WHICH HE MAY REDEEM THE PROPERTY BY
PAYING TO THE PURCHASER THE AMOUNT BID FOR THE PROPERTY PLUS INTEREST
FROM THE TIME OF THE SALE AT THE RATE BORNE BY THE MORTGAGE, EVEN
THOUGH THE AMOUNT OF SUCH BID BE LESS THAN THE TOTAL AMOUNT OF THE
MORTGAGEE'S INVESTMENT IN THE PROPERTY.  SEE COMP. LAWS 1929, C. 266,
SECS. 14435, 14436; COMPARE VOSBURGH V. LAY, 45 MICH. 455; 8 N.W. 91. 
THE PURCHASER CANNOT, UNDER THE LOCAL LAW, ACQUIRE TITLE UNTIL AFTER
THE EXPIRATION OF THE REDEMPTION PERIOD.  SEE COMP. LAWS 1929, C. 266,
SEC. 14434.  THE MORTGAGEE MAY, "FAIRLY AND IN GOOD FAITH," BID THE
PROPERTY IN, (ID., SEC. 14432), AND HE ENJOYS THE SAME RIGHTS AS
PURCHASER AS WOULD A THIRD PARTY.  SEE LEDYARD V. PHILLIPS, 47 MICH.
305, 308; 11 N.W. 170. 

FN5  THE ORDER OF THE COURT OF APPEALS, WHICH REVERSED THE DECISION
OF THE BOARD, REMANDED THE CAUSE FOR FURTHER PROCEEDINGS.  WE ARE TOLD
BY COUNSEL FOR THE COMPANY THAT THEREAFTER THE BOARD FOUND, ON THE
EVIDENCE ABOVE REFERRED TO, THAT THE VALUES OF THE SEVERAL PROPERTIES
WERE LESS THAN THE PRINCIPAL OF THE LOANS.  THIS FINDING, MADE AFTER
THE FILING OF THE PETITION FOR CERTIORARI, THOUGH APPARENTLY BEFORE ITS
ALLOWANCE, WAS NOT MADE PART OF THE RECORD.  IT IS, THEREFORE,
DISREGARDED. 

FN6  SEE REVENUE ACT OF 1928, SEC. 23(B), 45 STAT. 791, 799. 

FN7  SEE ALSO KENTUCKY IMPROVEMENT CO. V. SLACK, 100 U.S. 648, 658,
659; BAILEY V. RAILROAD CO., 106 U.S. 109, 115, 116; COMPARE CARY V.
SAVINGS UNION, 22 WALL.  38, 41. 

FN8  COMPARE BELL'S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 236;
HATCH V. REARDON, 204 U.S. 152, 159; PADDELL V. NEW YORK, 211 U.S. 446,
449, 450; NEW YORK V. LATROBE, 279 U.S. 421, 427. 

FN9  TAXABILITY HAS FREQUENTLY BEEN DETERMINED WITHOUT REFERENCE TO
FACTORS WHICH THE ACCOUNTANT, ECONOMIST OR BUSINESS MAN MIGHT DEEM
RELEVANT TO THE COMPUTATION OF NET GAIN.  COMPARE BRUSHABER V. UNION
PACIFIC R. CO., 240 U.S. 1; TYEE REALTY CO. V. ANDERSON, 240 U.S. 115;
WEISS V. WIENER, 279 U.S. 333; HELVERING V. INDEPENDENT LIFE INSURANCE
CO., 292 U.S. 371.  THE EXIGENCIES OF A TAX DETERMINED ON AN ANNUAL
BASIS MAY LEAD TO THE INCLUSION AS INCOME OF ITEMS WHICH MIGHT BE SHOWN
TO INVOLVE NO GAIN IF THE TRANSACTIONS WERE VIEWED AS A WHOLE OVER
SEVERAL YEARS.  COMPARE BURNET V. SANFORD & BROOKS CO., 282 U.S. 359,
364, 365; BROWN V. HELVERING, 291 U.S. 193, 199; SPRING CITY FOUNDRY
CO. V. COMMISSIONER, 292 U.S. 182, 189, 190. 

MR. JUSTICE MCREYNOLDS, DISSENTING. 

THE JUDGMENT BELOW, I THINK, IS CORRECT AND SHOULD BE AFFIRMED.  A
WELL-CONSIDERED OPINION SUPPORTS IT. 

THE NOTION THAT CONGRESS INTENDED TO TAX THE MERE HOPE OF RECOUPING A
LOSS SOMETIME IN THE FUTURE SHOULD BE DEFINITELY REJECTED. 

TO SUPPORT THE ASSERTION THAT HERE THE COMPANY COLLECTED INTEREST,
WHEN IN FACT EVERYTHING RECEIVED WAS WORTH LESS THAN THE SUM LOANED,
REQUIRES RESORT TO THEORY AT WAR WITH PATENT FACTS.  THE COMPANY GOT
NOTHING OUT OF WHICH TO PAY THE EXACTMENT; ITS ASSETS WERE NOT
AUGMENTED.  LIKE IMAGINARY "RECEIPTS" OF INTEREST OFTEN REPEATED AND
SIMILARLY BURDENED WOULD HASTEN BANKRUPTCY. 

DIVORCED FROM REALITY TAXATION BECOMES SHEER OPPRESSION. 
..END :






TABER V. INDIAN TERRITORY CO., 300 U.S. 1 


NO. 280.  ARGUED JANUARY 6, 1937.  - DECIDED FEBRUARY 1, 1937.  - 177
OKLA. 67 - 57 P.(2D) 1167, REVERSED. 


A NON-DISCRIMINATORY STATE TAX, AD VALOREM, ON EQUIPMENT USED BY A
PRIVATE CORPORATION IN OPERATING FOR OIL AND GAS UNDER A LEASE TO IT OF
RESTRICTED INDIAN ALLOTMENTS, HELD VALID, AGAINST THE CLAIM THAT IT WAS
AN UNCONSTITUTIONAL BURDEN ON A FEDERAL INSTRUMENTALITY.  P. 3. 

TABER, TREASURER OF PAYNE COUNTY, V. INDIAN TERRITORY ILLUMINATING OIL
CO. 

CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. 

CERTIORARI, 299 U.S. 528, TO REVIEW THE AFFIRMANCE OF A JUDGMENT
AGAINST TABER, COUNTY TREASURER, IN AN ACTION BY THE OIL COMPANY TO
RECOVER MONEY PAID UNDER PROTEST AS TAXES. 

THE APPLICATION OF THE DOCTRINE OF IMPLIED IMMUNITY OF A FEDERAL
INSTRUMENTALITY FROM STATE TAXATION SHOULD HAVE REGARD TO THE
CIRCUMSTANCES DISCLOSED.  WHILE IN ONE ASPECT THE EXTENT OF THE
EXEMPTION DEPENDS UPON THE EFFECT OF THE TAX, STILL THE NATURE OF THE
INSTRUMENTALITY AND THE PART IT PLAYS MAY NOT BE DISREGARDED, FOR IT
MAY BE OF SUCH A CHARACTER THAT ANY TAXATION OF IT WOULD IMPOSE A
DIRECT BURDEN UPON THE FUNCTIONS OF GOVERNMENT.  METCALF V. MITCHELL,
269 U.S. 514; UNION PACIFIC R. CO. V. PENISTON, 18 WALL.  5; SAFE
DEPOSIT & TRUST CO. V. VIRGINIA, 280 U.S. 83; WRIGHT V. NAGLE, 101 U.S.
791. 

AN AGENCY CREATED AND CONTROLLED BY THE FEDERAL GOVERNMENT TO ENABLE
IT TO DEVELOP RESTRICTED INDIAN LAND FOR OIL AND GAS IS OF SUCH A
CHARACTER, AND SO INTIMATELY CONNECTED WITH THE PERFORMANCE OF THE
FUNCTIONS OF GOVERNMENT, THAT IT IS IMMUNE FROM STATE TAXATION AND THE
IMMUNITY EXTENDS TO THE PROPERTY USED IN ITS OPERATIONS.  METCALF V.
MITCHELL, 269 U.S. 514; GILLESPIE V. OKLAHOMA, 257 U.S. 501; CHOCTAW,
O. & G.R. CO. V. HARRISON, 235 U.S. 292; JAYBIRD MINING CO. V. WEIR,
271 U.S. 609; INDIAN TERRITORY OIL CO. V. OKLAHOMA, 240 U.S. 522; LARGE
OIL CO. V. HOWARD, 248 U.S. 549; HOWARD V. GYPSY OIL CO., 247 U.S.
503. 

THE AD VALOREM TAX SOUGHT TO BE LEVIED BY THE STATE OF OKLAHOMA UPON
THE EQUIPMENT USED BY RESPONDENT IN ITS OPERATIONS WOULD IMPOSE A
DIRECT BURDEN UPON THE FUNCTIONS OF GOVERNMENT.  METCALF V. MITCHELL,
269 U.S. 514; BURNET V. JERGENS TRUST, 288 U.S. 508; LARGE OIL CO. V.
HOWARD, 248 U.S. 549; HOWARD V. GYPSY OIL CO., 247 U.S. 503. 

THE IMMUNITY OF A FEDERAL INSTRUMENTALITY FROM STATE TAXATION IS NOT
DEPENDENT ON THE AMOUNT OF THE TAX, OR THE EXTENT OF THE RESULTING
INTERFERENCE, BUT IS ABSOLUTE.  FOX FILM CORP. V. DOYAL, 286 U.S. 123;
INDIAN MOTOCYCLE CO. V. UNITED STATES, 283 U.S. 570; TRINITYFARM
CONSTRUCTION CO. V. GROSJEAN, 291 U.S. 466; METCALF V. MITCHELL, 269
U.S. 514; GILLESPIE V. OKLAHOMA, 257 U.S. 501. 

DISTINGUISHING:  FEDERAL COMPRESS CO. V. MCLEAN, 291 U.S. 17;
SUSQUEHANNA POWER CO. V. STATE TAX COMM'N, 283 U.S. 291; ALWARD V.
JOHNSON, 282 U.S. 509; THOMAS V. GAY, 169 U.S. 264; WAGONER V. EVANS,
170 U.S. 588; BALTIMORE SHIPBUILDING CO. V. BALTIMORE, 195 U.S. 375;
CHOCTAW, O. & G.R. CO. V. MCKEY, 256 U.S. 531; INDIAN TERRITORY OIL CO.
V. BOARD OF EQUALIZATION, 288 U.S. 325; UNION PACIFIC R. CO. V.
PENISTON, 18 WALL.  5; METCALF V. MITCHELL, 269 U.S. 514. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THE RESPONDENT, INDIAN TERRITORY ILLUMINATING OIL COMPANY, HOLDS AN
OIL AND GAS LEASE COVERING LANDS OF RESTRICTED PAWNEE INDIANS.  THE
QUESTION RELATES TO THE CONSTITUTIONAL AUTHORITY OF THE STATE OF
OKLAHOMA TO TAX CERTAIN PROPERTY USED BY THE RESPONDENT IN ITS
OPERATIONS AS LESSEE.  THE SUPREME COURT OF OKLAHOMA HELD THAT THE
PROPERTY WAS NOT TAXABLE BECAUSE THE LESSEE WAS A FEDERAL
INSTRUMENTALITY AND CONGRESS HAD NOT CONSENTED TO ITS TAXATION.  177
OKLA. 67; 57 P.(2D) 1167.  WE GRANTED CERTIORARI.  OCTOBER 12, 1936. 

THE PROPERTY IS DESCRIBED AS "ONE DWELLING, PORTABLE, ONE GARAGE, ONE
TOOL HOUSE, ENGINES, PUMP, WATER WELL EQUIPMENT, TANKS, DERRICKS,
CASING, TUBING, RODS, PIPELINES, AND ONE TRAILER TRUCK, OF THE
AGGREGATE VALUE OF $15,869.23."  THE TAX IS AN AD VALOREM TAX FOR THE
YEAR 1933-34.  THERE IS NO ALLEGATION OR FINDING THAT THE TAX WAS
DISCRIMINATORY, THE SOLE CONTENTION BEING THAT THE PROPERTY WAS NOT
SUBJECT TO AD VALOREM TAXATION BECAUSE OF ITS USE AS AN ADJUNCT TO THE
PRODUCTION OF OIL AND GAS FROM THE LEASEHOLD. 

OUR DECISIONS DISTINGUISH BETWEEN A NON-DISCRIMINATORY TAX UPON THE
PROPERTY OF AN AGENT OF GOVERNMENT AND ONE WHICH IMPOSES A DIRECT
BURDEN UPON THE EXERTION OF GOVERNMENTAL POWERS.  IN THE FORMER CASE
WHERE THERE IS ONLY A REMOTE, IF ANY, INFLUENCE UPON THE EXERCISE OF
GOVERNMENTAL FUNCTIONS, WE HAVE HELD THAT A NON-DISCRIMINATORY AD
VALOREM TAX IS VALID, ALTHOUGH THE PROPERTY IS USED IN THE OPERATIONS
OF THE GOVERNMENTAL AGENCY.  THIS DISTINCTION, RECOGNIZED BY CHIEF
JUSTICE MARSHALL IN MCCULLOCH V. MARYLAND, 4 WHEAT.  316, 436, WAS
STATED AND APPLIED AFTER FULL CONSIDERATION IN THOMSON V. PACIFIC
RAILROAD, 9 WALL.  579, 591, AND RAILROAD COMPANY V. PENISTON, 18
WALL.  5, 31-36.  RECENT ILLUSTRATIONS ARE FOUND IN ALWARD V. JOHNSON,
282 U.S. 509, 514, WHERE THE TAX WHICH WAS SUSTAINED WAS LAID UPON
PROPERTY USED IN OPERATING AN AUTOMOTIVE STAGE LINE BETWEEN POINTS IN
CALIFORNIA UNDER A MAIL CARRIER'S CONTRACT; AND IN TIRRELL V. JOHNSTON,
293 U.S. 533, WHERE A TAX KNOWN AS THE "GASOLINE ROAD TOLL" WAS HELD TO
BE PAYABLE BY A RURAL MAIL CARRIER WHO DELIVERED THE MAIL BY MEANS OF
HIS OWN MOTOR VEHICLE.  SEE, ALSO, THOMAS V. GAY, 169 U.S. 264, 273;
BALTIMORE SHIPBUILDING CO. V. BALTIMORE, 195 U.S. 375, 382; CHOCTAW, O.
& G.R. CO. V. MACKEY, 256 U.S. 531, 536, 537; WILLCUTS V. BUNN, 282
U.S. 216, 226; SUSQUEHANNA POWER CO. V. TAX COMMISSION (NO. 1), 283
U.S. 291, 294; EASTERN AIR TRANSPORT V. TAX COMMISSION, 285 U.S. 147,
153. 

IN INDIAN TERRITORY ILLUMINATING OIL CO. V. BOARD OF EQUALIZATION,
288 U.S. 325, AN AD VALOREM TAX UPON CRUDE OIL, HELD BY THE COMPANY IN
ITS STORAGE TANKS, WAS SUSTAINED AGAINST THE CLAIM THAT THE OIL WAS
EXEMPT BECAUSE IN ITS PRODUCTION THE TAXPAYER WAS OPERATING AS AN
INSTRUMENTALITY OF THE UNITED STATES.  THERE THE TAXPAYER RELIED, AS
DOES THE STATE COURT HERE, UPON THE RULING IN JAYBIRD MINING CO. V.
WEIR, 271 U.S. 609, WHERE AN AD VALOREM TAX UPON ORES MINED UNDER A
LEASE OF RESTRICTED INDIAN LAND AND IN THE BINS ON THAT LAND WAS HELD
TO BE INVALID.  BUT WE POINTED OUT THAT IN THE JAYBIRD CASE THE TAX
"WAS ASSESSED ON THE ORES IN MASS; AND THE ROYALTIES AND EQUITABLE
INTERESTS OF THE INDIANS HAD NOT BEEN PAID OR SEGREGATED."  INDIAN
TERRITORY ILLUMINATING OIL CO. V. BOARD OF EQUALIZATION, SUPRA, P.
327.  IN THOSE CIRCUMSTANCES THE TAX WAS REGARDED AS AN ATTEMPT TO TAX
AN AGENCY OF THE FEDERAL GOVERNMENT.  EMPHASIZING THAT DISTINCTION, WE
SAID IN REFERENCE TO THE INDIAN TERRITORY ILLUMINATING OIL COMPANY:
"SUCH IMMUNITY AS PETITIONER ENJOYED AS A GOVERNMENTAL INSTRUMENTALITY
INHERED IN ITS OPERATIONS AS SUCH, AND BEING FOR THE PROTECTION OF THE
GOVERNMENT IN ITS FUNCTION EXTENDED NO FARTHER THAN WAS NECESSARY FOR
THAT PURPOSE."  ID., P. 328. 

IN THAT VIEW, THE IMMUNITY CANNOT BE SAID TO EXTEND TO A
NONDISCRIMINATORY AD VALOREM TAX UPON THE PROPERTY OF THE PETITIONER
WHICH IS INVOLVED IN THE INSTANT CASE.  THE JUDGMENT IS REVERSED AND
THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.  REVERSED. 
..END :









BLAIR V. COMMISSIONER, 300 U.S. 5 


NO. 247.  ARGUED JANUARY 5, 1937.  - DECIDED FEBRUARY 1, 1937.  - 83
F.(2D) 655, 662, REVERSED. 


1.  A JUDGMENT OF THE CIRCUIT COURT OF APPEALS HOLDING A BENEFICIARY
NAMED IN A TRUST TAXABLE UPON TRUST INCOME NOTWITHSTANDING ASSIGNMENTS
PREVIOUSLY MADE BY HIM, AND BASING THIS CONCLUSION UPON THE GROUND
THAT, UNDER THE LOCAL LAW, THE TRUST WAS A SPENDTHRIFT TRUST GIVING THE
BENEFICIARY NO POWER TO ASSIGN,  - HELD INAPPLICABLE AS RES JUDICATA IN
FAVOR OF THE GOVERNMENT IN PROCEEDINGS TO COLLECT TAXES FROM THE SAME
PERSON, FOR SUBSEQUENT YEARS, THE SITUATION HAVING BEEN CHANGED
MEANWHILE BY A DECISION OF THE STATE COURT CONSTRUING THE TRUST AND
UPHOLDING THE ASSIGNMENTS.  TAIT V. WESTERN MARYLAND RY. CO., 289 U.S.
620, DISTINGUISHED.  P. 8. 

2.  WHETHER A TESTAMENTARY TRUST IS A SPENDTHRIFT TRUST BARRING THE
VOLUNTARY ALIENATION OF HIS INTEREST BY THE BENEFICIARY DEPENDS UPON
THE LAW OF THE STATE IN WHICH THE DONOR RESIDED AND IN WHICH THE TRUST
WAS CREATED AND THE PROPERTY SITUATED.  P. 9. 

3.  A DECISION BY THE INTERMEDIATE APPELLATE COURT OF ILLINOIS
UPHOLDING THE RIGHT OF THE LIFE BENEFICIARY OF A TRUST TO ASSIGN PARTS
OF HIS INTEREST, IN A SUIT BROUGHT BY THE TRUSTEES FOR INSTRUCTIONS AND
IMPLEADING THE BENEFICIARY AND HIS ASSIGNEES,  - HELD CONCLUSIVE OF THE
VALIDITY OF THE ASSIGNMENTS.  P. 10. 

4.  IN THE GENERAL APPLICATION OF THE REVENUE ACTS, INCOME TAX
LIABILITY IS ATTACHED TO OWNERSHIP.  P. 11. 

5.  PROVISIONS OF THE REVENUE ACTS (1921, SEC. 219(A)(D); 1924 AND
1926, SEC. 219(A)(B); 1928, SEC. 162(A)(B)) IMPOSING UPON THE
BENEFICIARY OF A TRUST LIABILITY FOR THE TAX UPON THE INCOME
"DISTRIBUTABLE" TO HIM, REFER TO THE OWNER OF THE BENEFICIAL INTEREST,
WHETHER HE WAS SUCH INITIALLY OR BECOMES SUCH BY AN ASSIGNMENT VALID
UNDER THE LOCAL LAW GOVERNING THE TRUST.  P. 12. 

6.  ASSIGNMENTS OF INTERESTS, OF SPECIFIED AMOUNTS EACH YEAR
THEREAFTER, IN THE NET INCOME WHICH THE ASSIGNOR WAS THEN OR MIGHT
THEREAFTER BE ENTITLED TO RECEIVE DURING HIS LIFE UNDER A TRUST,  -
HELD ASSIGNMENTS NOT MERELY OF THE RIGHT TO RECEIVE INCOME, BUT OF
CORRESPONDING INTERESTS IN THE TRUST ESTATE.  P. 12. 

7.  A BENEFICIARY ENTITLED DURING LIFE TO THE INCOME OF PROPERTY HELD
IN TRUST IS THE OWNER, NOT OF A CHOSE IN ACTION MERELY, BUT OF AN
EQUITABLE INTEREST IN THE CORPUS OF THE PROPERTY; AND THAT INTEREST, IN
THE ABSENCE OF A VALID RESTRAINT UPON ALIENATION, HE MAY ASSIGN IN
PART, OR AS A WHOLE.  P. 13. 

BLAIR V. COMMISSIONER OF INTERNAL REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 299 U.S. 527, TO REVIEW A JUDGMENT WHICH REVERSED A
DECISION OF THE BOARD OF TAX APPEALS, 31 B.T.A. 1192, OVERRULING INCOME
TAX ASSESSMENTS. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE LIABILITY OF A BENEFICIARY OF
A TESTAMENTARY TRUST FOR A TAX UPON THE INCOME WHICH HE HAD ASSIGNED TO
HIS CHILDREN PRIOR TO THE TAX YEARS AND WHICH THE TRUSTEES HAD PAID TO
THEM ACCORDINGLY. 

THE TRUST WAS CREATED BY THE WILL OF WILLIAM BLAIR, A RESIDENT OF
ILLINOIS WHO DIED IN 1899, AND WAS OF PROPERTY LOCATED IN THAT STATE. 
ONE-HALF OF THE NET INCOME WAS TO BE PAID TO THE DONOR'S WIDOW DURING
HER LIFE.  HIS SON, THE PETITIONER EDWARD TYLER BLAIR, WAS TO RECEIVE
THE OTHER ONE-HALF AND, AFTER THE DEATH OF THE WIDOW, THE WHOLE OF THE
NET INCOME DURING HIS LIFE.  IN 1923, AFTER THE WIDOW'S DEATH,
PETITIONER ASSIGNED TO HIS DAUGHTER, LUCY BLAIR LINN, AN INTEREST
AMOUNTING TO $6000 FOR THE REMAINDER OF THAT CALENDAR YEAR, AND TO
$9000 IN EACH CALENDAR YEAR THEREAFTER, IN THE NET INCOME WHICH THE
PETITIONER WAS THEN OR MIGHT THEREAFTER BE ENTITLED TO RECEIVE DURING
HIS LIFE.  AT ABOUT THE SAME TIME, HE MADE LIKE ASSIGNMENTS OF
INTERESTS, AMOUNTING TO $9000 IN EACH CALENDAR YEAR, IN THE NET INCOME
OF THE TRUST TO HIS DAUGHTER EDITH BLAIR AND TO HIS SON, EDWARD SEYMOUR
BLAIR, RESPECTIVELY.  IN LATER YEARS, BY SIMILAR INSTRUMENTS, HE
ASSIGNED TO THESE CHILDREN ADDITIONAL INTERESTS, AND TO HIS SON WILLIAM
MCCORMICK BLAIR OTHER SPECIFIED INTERESTS, IN THE NET INCOME.  THE
TRUSTEES ACCEPTED THE ASSIGNMENTS AND DISTRIBUTED THE INCOME DIRECTLY
TO THE ASSIGNEES. 

THE QUESTION FIRST AROSE WITH RESPECT TO THE TAX YEAR 1923 AND THE
COMMISSIONER OF INTERNAL REVENUE RULED THAT THE INCOME WAS TAXABLE TO
THE PETITIONER.  THE BOARD OF TAX APPEALS HELD THE CONTRARY.  18 B.T.A.
69.  THE CIRCUIT COURT OF APPEALS REVERSED THE BOARD, HOLDING THAT
UNDER THE LAW OF ILLINOIS THE TRUST WAS A SPENDTHRIFT TRUST AND THE
ASSIGNMENTS WERE INVALID.  COMMISSIONER V. BLAIR, 60 F.(2D) 340.  WE
DENIED CERTIORARI.  288 U.S. 602. 

THEREUPON THE TRUSTEES BROUGHT SUIT IN THE SUPERIOR COURT OF COOK
COUNTY, ILLINOIS, TO OBTAIN A CONSTRUCTION OF THE WILL WITH RESPECT TO
THE POWER OF THE BENEFICIARY OF THE TRUST TO ASSIGN A PART OF HIS
EQUITABLE INTEREST AND TO DETERMINE THE VALIDITY OF THE ASSIGNMENTS HE
HAD MADE.  THE PETITIONER AND THE ASSIGNEES WERE MADE DEFENDANTS.  THE
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, AFTER A REVIEW OF THE
ILLINOIS DECISIONS, DECIDED THAT THE TRUST WAS NOT A SPENDTHRIFT TRUST
AND UPHELD THE ASSIGNMENTS.  BLAIR V. LINN, 274 ILL. APP. 23.  UNDER
THE MANDATE OF THE APPELLATE COURT, THE SUPERIOR COURT OF COOK COUNTY
ENTERED ITS DECREE WHICH FOUND THE ASSIGNMENTS TO BE "VOLUNTARY
ASSIGNMENTS OF A PART OF THE INTEREST OF SAID EDWARD TYLER BLAIR IN
SAID TRUST ESTATE" AND AS SUCH ADJUDGED THEM TO BE VALID. 

AT THAT TIME THERE WERE PENDING BEFORE THE BOARD OF TAX APPEALS
PROCEEDINGS INVOLVING THE INCOME OF THE TRUST FOR THE YEARS 1924, 1925,
1926 AND 1929.  THE BOARD RECEIVED IN EVIDENCE THE RECORD IN THE SUIT
IN THE STATE COURT AND, APPLYING THE DECISION OF THAT COURT, THE BOARD
OVERRULED THE COMMISSIONER'S DETERMINATION AS TO THE PETITIONER'S
LIABILITY.  31 B.T.A. 1192.  THE CIRCUIT COURT OF APPEALS AGAIN
REVERSED THE BOARD.  THAT COURT RECOGNIZED THE BINDING EFFECT OF THE
DECISION OF THE STATE COURT AS TO THE VALIDITY OF THE ASSIGNMENTS BUT
DECIDED THAT THE INCOME WAS STILL TAXABLE TO THE PETITIONER UPON THE
GROUND THAT HIS INTEREST WAS NOT ATTACHED TO THE CORPUS OF THE ESTATE
AND THAT THE INCOME WAS NOT SUBJECT TO HIS DISPOSITION UNTIL HE
RECEIVED IT.  COMMISSIONER V. BLAIR, 83 F.(2D) 655, 662. 

BECAUSE OF AN ASSERTED CONFLICT WITH THE DECISION OF THE STATE COURT,
AND ALSO WITH DECISIONS OF CIRCUIT COURTS OF APPEALS, WE GRANTED
CERTIORARI.  OCTOBER 12, 1936. 

FIRST.  THE GOVERNMENT CONTENDS THAT THE JUDGMENT RELATING TO THE
INCOME FOR 1923 IS CONCLUSIVE IN THIS PROCEEDING AS RES JUDICATA.  TAIT
V. WESTERN MARYLAND RY. CO., 289 U.S. 620.  PETITIONER INSISTS THAT
THIS QUESTION WAS NOT RAISED BEFORE THE BOARD OF TAX APPEALS AND HENCE
WAS NOT AVAILABLE BEFORE THE CIRCUIT COURT OF APPEALS.  GENERAL
UTILITIES CO. V. HELVERING, 296 U.S. 200, 206; HELVERING V. SALVAGE,
297 U.S. 106, 109.  THE GOVERNMENT RESPONDS THAT THE ANSWERS BEFORE THE
BOARD OF TAX APPEALS IN THE INSTANT CASE HAD BEEN FILED BEFORE THE
FIRST DECISION OF THE CIRCUIT COURT OF APPEALS WAS ENTERED, AND THAT,
WHILE THE CASE WAS HEARD BEFORE THE BOARD WITHOUT AMENDED PLEADINGS,
THE WHOLE MATTER WAS ACTUALLY BEFORE THE BOARD AND THE QUESTION OF RES
JUDICATA WAS RAISED BY AN ASSIGNMENT OF ERROR ON THE PETITION FOR
REVIEW BEFORE THE CIRCUIT COURT OF APPEALS. 

IT IS NOT NECESSARY TO REVIEW THE RESPECTIVE CONTENTIONS UPON THIS
POINT, AS WE THINK THAT THE RULING IN THE TAIT CASE IS NOT APPLICABLE. 
THAT RULING AND THE REASONING WHICH UNDERLIES IT APPLY WHERE IN THE
SUBSEQUENT PROCEEDING, ALTHOUGH RELATING TO A DIFFERENT TAX YEAR, THE
QUESTIONS PRESENTED UPON THE FACTS AND THE LAW ARE ESSENTIALLY THE
SAME.  TAIT V. WESTERN MARYLAND RY. CO., SUPRA, PP. 624, 626.  HERE,
AFTER THE DECISION IN THE FIRST PROCEEDING, THE OPINION AND DECREE OF
THE STATE COURT CREATED A NEW SITUATION.  THE DETERMINATION OF
PETITIONER'S LIABILITY FOR THE YEAR 1923 HAD BEEN RESTED ENTIRELY UPON
THE LOCAL LAW.  COMMISSIONER V. BLAIR, 60 F.(2D) 340, 342, 344.  THE
SUPERVENING DECISION OF THE STATE COURT INTERPRETING THAT LAW IN DIRECT
RELATION TO THIS TRUST CANNOT JUSTLY BE IGNORED IN THE PRESENT
PROCEEDING SO FAR AS IT IS FOUND THAT THE LOCAL LAW IS DETERMINATIVE OF
ANY MATERIAL POINT IN CONTROVERSY.  COMPARE FREULER V. HELVERING, 291
U.S. 35; HUBBELL V. HELVERING, 70 F.(2D) 668. 

SECOND.  THE QUESTION OF THE VALIDITY OF THE ASSIGNMENTS IS A
QUESTION OF LOCAL LAW.  THE DONOR WAS A RESIDENT OF ILLINOIS AND HIS
DISPOSITION OF THE PROPERTY IN THAT STATE WAS SUBJECT TO ITS LAW.  BY
THAT LAW THE CHARACTER OF THE TRUST, THE NATURE AND EXTENT OF THE
INTEREST OF THE BENEFICIARY, AND THE POWER OF THE BENEFICIARY TO ASSIGN
THAT INTEREST IN WHOLE OR IN PART, ARE TO BE DETERMINED.  THE DECISION
OF THE STATE COURT UPON THESE QUESTIONS IS FINAL.  SPINDLE V. SHREVE,
111 U.S. 542, 547, 548; UTERHART V. UNITED STATES, 240 U.S. 598, 603;
POE V. SEABORN, 282 U.S. 101, 110; FREULER V. HELVERING, SUPRA, P. 45. 
IT MATTERS NOT THAT THE DECISION WAS BY AN INTERMEDIATE APPELLATE
COURT.  COMPARE GRAHAM V. WHITE-PHILLIPS CO., 296 U.S. 27.  IN THIS
INSTANCE, IT IS NOT NECESSARY TO GO BEYOND THE OBVIOUS POINT THAT THE
DECISION WAS IN A SUIT BETWEEN THE TRUSTEES AND THE BENEFICIARY AND HIS
ASSIGNEES, AND THE DECREE WHICH WAS ENTERED IN PURSUANCE OF THE
DECISION DETERMINED AS BETWEEN THESE PARTIES THE VALIDITY OF THE
PARTICULAR ASSIGNMENTS.  NOR IS THERE ANY BASIS FOR A CHARGE THAT THE
SUIT WAS COLLUSIVE AND THE DECREE INOPERATIVE.  FREULER V. HELVERING,
SUPRA.  THE TRUSTEES WERE ENTITLED TO SEEK THE INSTRUCTIONS OF THE
COURT HAVING SUPERVISION OF THE TRUST.  THAT COURT ENTERTAINED THE SUIT
AND THE APPELLATE COURT, WITH THE FIRST DECISION OF THE CIRCUIT COURT
OF APPEALS BEFORE IT, REVIEWED THE DECISIONS OF THE SUPREME COURT OF
THE STATE AND REACHED A DELIBERATE CONCLUSION.  TO DEROGATE FROM THE
AUTHORITY OF THAT CONCLUSION AND OF THE DECREE IT COMMANDED, SO FAR AS
THE QUESTION IS ONE OF STATE LAW, WOULD BE WHOLLY UNWARRANTED IN THE
EXERCISE OF FEDERAL JURISDICTION. 

IN THE FACE OF THIS RULING OF THE STATE COURT IT IS NOT OPEN TO THE
GOVERNMENT TO ARGUE THAT THE TRUST "WAS, UNDER THE ILLINOIS LAW, A
SPENDTHRIFT TRUST."  THE POINT OF THE ARGUMENT IS THAT, THE TRUST BEING
OF THAT CHARACTER, THE STATE LAW BARRED THE VOLUNTARY ALIENATION BY THE
BENEFICIARY OF HIS INTEREST.  THE STATE COURT HELD PRECISELY THE
CONTRARY.  THE RULING ALSO DETERMINES THE VALIDITY OF THE ASSIGNMENT BY
THE BENEFICIARY OF PARTS OF HIS INTEREST.  THAT QUESTION WAS
NECESSARILY PRESENTED AND EXPRESSLY DECIDED. 

THIRD.  THE QUESTION REMAINS WHETHER, TREATING THE ASSIGNMENTS AS
VALID, THE ASSIGNOR WAS STILL TAXABLE UPON THE INCOME UNDER THE FEDERAL
INCOME TAX ACT.  THAT IS A FEDERAL QUESTION. 

OUR DECISIONS IN LUCAS V. EARL, 281 U.S. 111, AND BURNET V.
LEININGER, 285 U.S. 136, ARE CITED.  IN THE LUCAS CASE THE QUESTION WAS
WHETHER AN ATTORNEY WAS TAXABLE FOR THE WHOLE OF HIS SALARY AND FEES
EARNED BY HIM IN THE TAX YEARS OR ONLY UPON ONE-HALF BY REASON OF AN
AGREEMENT WITH HIS WIFE BY WHICH HIS EARNINGS WERE TO BE RECEIVED AND
OWNED BY THEM JOINTLY.  WE WERE OF THE OPINION THAT THE CASE TURNED
UPON THE CONSTRUCTION OF THE TAXING ACT.  WE SAID THAT "THE STATUTE
COULD TAX SALARIES TO THOSE WHO EARNED THEM AND PROVIDE THAT THE TAX
COULD NOT BE ESCAPED BY ANTICIPATORY ARRANGEMENTS AND CONTRACTS HOWEVER
SKILFULLY DEVISED TO PREVENT THE SAME WHEN PAID FROM VESTING EVEN FOR A
SECOND IN THE MAN WHO EARNED IT."  THAT WAS DEEMED TO BE THE MEANING OF
THE STATUTE AS TO COMPENSATION FOR PERSONAL SERVICE, AND THE ONE WHO
EARNED THE INCOME WAS HELD TO BE SUBJECT TO THE TAX.  IN BURNET V.
LEININGER, SUPRA, A HUSBAND, A MEMBER OF A FIRM, ASSIGNED FUTURE
PARTNERSHIP INCOME TO HIS WIFE.  WE FOUND THAT THE REVENUE ACT DEALT
EXPLICITLY WITH THE LIABILITY OF PARTNERS AS SUCH.  THE WIFE DID NOT
BECOME A MEMBER OF THE FIRM; THE ACT SPECIFICALLY TAXED THE
DISTRIBUTIVE SHARE OF EACH PARTNER IN THE NET INCOME OF THE FIRM; AND
THE HUSBAND BY THE FAIR IMPORT OF THE ACT REMAINED TAXABLE UPON HIS
DISTRIBUTIVE SHARE.  THESE CASES ARE NOT IN POINT.  THE TAX HERE IS NOT
UPON EARNINGS WHICH ARE TAXED TO THE ONE WHO EARNS THEM.  NOR IS IT A
CASE OF INCOME ATTRIBUTABLE TO A TAXPAYER BY REASON OF THE APPLICATION
OF THE INCOME TO THE DISCHARGE OF HIS OBLIGATION.  OLD COLONY TRUST CO.
V. COMMISSIONER, 279 U.S. 716; DOUGLAS V. WILLCUTS, 296 U.S. 1, 9;
HELVERING V. STOKES, 296 U.S. 551; HELVERING V. SCHWEITZER, 296 U.S.
551; HELVERING V. COXEY, 297 U.S. 694.  SEE, ALSO, BURNET V. WELLS, 289
U.S. 670, 677.  THERE IS HERE NO QUESTION OF EVASION OR OF GIVING
EFFECT TO STATUTORY PROVISIONS DESIGNED TO FORESTALL EVASION; OR OF THE
TAXPAYER'S RETENTION OF CONTROL.  CORLISS V. BOWERS, 281 U.S. 376;
BURNET V. GUGGENHEIM, 288 U.S. 280. 

IN THE INSTANT CASE, THE TAX IS UPON INCOME AS TO WHICH, IN THE
GENERAL APPLICATION OF THE REVENUE ACTS, THE TAX LIABILITY ATTACHES TO
OWNERSHIP.  SEE POE V. SEABORN, SUPRA; HOEPER V. TAX COMMISSION, 284
U.S. 206. 

THE GOVERNMENT POINTS TO THE PROVISIONS OF THE REVENUE ACTS IMPOSING
UPON THE BENEFICIARY OF A TRUST THE LIABILITY FOR THE TAX UPON THE
INCOME DISTRIBUTABLE TO THE BENEFICIARY.  FN1  BUT THE TERM IS MERELY
DESCRIPTIVE OF THE ONE ENTITLED TO THE BENEFICIAL INTEREST.  THESE
PROVISIONS CANNOT BE TAKEN TO PRECLUDE VALID ASSIGNMENTS OF THE
BENEFICIAL INTEREST, OR TO AFFECT THE DUTY OF THE TRUSTEE TO DISTRIBUTE
INCOME TO THE OWNER OF THE BENEFICIAL INTEREST, WHETHER HE WAS SUCH
INITIALLY OR BECOMES SUCH BY VALID ASSIGNMENT.  THE ONE WHO IS TO
RECEIVE THE INCOME AS THE OWNER OF THE BENEFICIAL INTEREST IS TO PAY
THE TAX.  IF UNDER THE LAW GOVERNING THE TRUST THE BENEFICIAL INTEREST
IS ASSIGNABLE, AND IF IT HAS BEEN ASSIGNED WITHOUT RESERVATION, THE
ASSIGNEE THUS BECOMES THE BENEFICIARY AND IS ENTITLED TO RIGHTS AND
REMEDIES ACCORDINGLY.  WE FIND NOTHING IN THE REVENUE ACTS WHICH DENIES
HIM THAT STATUS. 

THE DECISION OF THE CIRCUIT COURT OF APPEALS TURNED UPON THE EFFECT
TO BE ASCRIBED TO THE ASSIGNMENTS.  THE COURT HELD THAT THE PETITIONER
HAD NO INTEREST IN THE CORPUS OF THE ESTATE AND COULD NOT DISPOSE OF
THE INCOME UNTIL HE RECEIVED IT.  HENCE IT WAS SAID THAT "THE INCOME
WAS HIS" AND HIS ASSIGNMENT WAS MERELY A DIRECTION TO PAY OVER TO
OTHERS WHAT WAS DUE TO HIMSELF.  THE QUESTION WAS CONSIDERED TO INVOLVE
"THE DATE WHEN THE INCOME BECAME TRANSFERABLE."  83 F.(2D), P. 662. 
THE GOVERNMENT REFERS TO THE TERMS OF THE ASSIGNMENT,  - THAT IT WAS OF
THE INTEREST IN THE INCOME "WHICH THE SAID PARTY OF THE FIRST PART NOW
IS, OR MAY HEREAFTER BE, ENTITLED TO RECEIVE DURING HIS LIFE FROM THE
TRUSTEES."  FROM THIS IT IS URGED THAT THE ASSIGNMENTS "DEALT ONLY WITH
A RIGHT TO RECEIVE THE INCOME" AND THAT "NO ATTEMPT WAS MADE TO ASSIGN
ANY EQUITABLE RIGHT, TITLE OR INTEREST IN THE TRUST ITSELF."  THIS
CONSTRUCTION SEEMS TO US TO BE A STRAINED ONE.  WE THINK IT APPARENT
THAT THE CONVEYANCER WAS NOT SEEKING TO LIMIT THE ASSIGNMENT SO AS TO
MAKE IT ANYTHING LESS THAN A COMPLETE TRANSFER OF THE SPECIFIED
INTEREST OF THE PETITIONER AS THE LIFE BENEFICIARY OF THE TRUST, BUT
THAT WITH AMPLE CAUTION HE WAS USING WORDS TO EFFECT SUCH A TRANSFER. 
THAT THE STATE COURT SO CONSTRUED THE ASSIGNMENTS APPEARS FROM THE
FINAL DECREE WHICH DESCRIBED THEM AS VOLUNTARY ASSIGNMENTS OF INTERESTS
OF THE PETITIONER "IN SAID TRUST ESTATE," AND IT WAS IN THAT ASPECT
THAT PETITIONER'S RIGHT TO MAKE THE ASSIGNMENTS WAS SUSTAINED. 

THE WILL CREATING THE TRUST ENTITLED THE PETITIONER DURING HIS LIFE
TO THE NET INCOME OF THE PROPERTY HELD IN TRUST.  HE THUS BECAME THE
OWNER OF AN EQUITABLE INTEREST IN THE CORPUS OF THE PROPERTY.  BROWN V.
FLETCHER, 235 U.S. 589, 598, 599; IRWIN V. GAVIT, 268 U.S. 161, 167,
168; SENIOR V. BRADEN, 295 U.S. 422, 432, 433; MERCHANTS' LOAN & TRUST
CO. V. PATTERSON, 308 ILL. 519, 530; 139 N.E. 912.  BY VIRTUE OF THAT
INTEREST HE WAS ENTITLED TO ENFORCE THE TRUST, TO HAVE A BREACH OF
TRUST ENJOINED AND TO OBTAIN REDRESS IN CASE OF BREACH.  THE INTEREST
WAS PRESENT PROPERTY ALIENABLE LIKE ANY OTHER, IN THE ABSENCE OF A
VALID RESTRAINT UPON ALIENATION.  COMMISSIONER V. FIELD, 42 F.(2D) 820,
822; SHANLEY V. BOWERS, 81 F.(2D) 13, 15.  THE BENEFICIARY MAY THUS
TRANSFER A PART OF HIS INTEREST AS WELL AS THE WHOLE.  SEE RESTATEMENT
OF THE LAW OF TRUSTS, SECS. 130, 132 ET SEQ. THE ASSIGNMENT OF THE
BENEFICIAL INTEREST IS NOT THE ASSIGNMENT OF A CHOSE IN ACTION BUT OF
THE "RIGHT, TITLE AND ESTATE IN AND TO PROPERTY."  BROWN V. FLETCHER,
SUPRA; SENIOR V. BRADEN, SUPRA.  SEE BOGERT, "TRUSTS AND TRUSTEES,"
VOL. 1, SEC. 183, PP. 516, 517; 17 COLUMBIA LAW REVIEW, 269, 273, 289,
290. 

WE CONCLUDE THAT THE ASSIGNMENTS WERE VALID, THAT THE ASSIGNEES
THEREBY BECAME THE OWNERS OF THE SPECIFIED BENEFICIAL INTERESTS IN THE
INCOME, AND THAT AS TO THESE INTERESTS THEY AND NOT THE PETITIONER WERE
TAXABLE FOR THE TAX YEARS IN QUESTION.  THE JUDGMENT OF THE CIRCUIT
COURT OF APPEALS IS REVERSED AND THE CAUSE IS REMANDED WITH DIRECTION
TO AFFIRM THE DECISION OF THE BOARD OF TAX APPEALS.  REVERSED. 

FN1  REVENUE ACTS OF 1921, SEC. 219(A)(D); 1924 AND 1926, SEC.
219(A)(B); 1928, SEC. 162(A)(B). 
..END :























HONEYMAN V. HANAN, 300 U.S. 14 


NO. 370.  ARGUED JANUARY 14, 1937.  - DECIDED FEBRUARY 1, 1937.  - 271
N.Y. 564 - 3 N.E.(2D) 186, JUDGMENT VACATED. 


1.  TO CONSTITUTE JURISDICTION OVER AN APPEAL FROM A STATE COURT, IT
MUST APPEAR, AFFIRMATIVELY FROM THE RECORD, NOT ONLY THAT A FEDERAL
QUESTION WAS PRESENTED FOR DECISION TO THE HIGHEST COURT OF THE STATE
HAVING JURISDICTION, BUT THAT ITS DECISION OF THE FEDERAL QUESTION WAS
NECESSARY TO THE DETERMINATION OF THE CAUSE.  P. 18. 

2.  WHETHER THESE REQUIREMENTS HAVE BEEN MET IS ITSELF A FEDERAL
QUESTION.  ID. 

3.  IN DECIDING WHETHER IT HAS JURISDICTION, THIS COURT MUST
DETERMINE WHETHER A FEDERAL QUESTION WAS NECESSARILY DECIDED BY THE
STATE COURT; THE DETERMINATION MUST REST UPON AN EXAMINATION OF THE
RECORD; AND WHILE A CERTIFICATE OR STATEMENT BY THE STATE COURT THAT A
FEDERAL QUESTION HAS BEEN PRESENTED TO IT AND NECESSARILY PASSED UPON
MAY AID THIS COURT IN SUCH EXAMINATION OF THE RECORD, IT CANNOT AVAIL
TO FORECLOSE THE INQUIRY OR TO IMPORT A FEDERAL QUESTION INTO THE
RECORD.  ID. 

4.  IN THE EXERCISE OF APPELLATE JURISDICTION, THIS COURT MAY MAKE
SUCH DISPOSITION OF THE CASE AS JUSTICE SHALL REQUIRE.  A CASE MAY BE
REMANDED TO A STATE COURT TO AFFORD OPPORTUNITY FOR AN AMENDMENT OF THE
RECORD APPROPRIATE TO SHOW DEFINITELY THE PRECISE NATURE OF THE FEDERAL
QUESTION, HOW IT WAS RAISED, AND THE GROUNDS OF ITS DISPOSITION BY THE
STATE COURT, TO THE END THAT THIS COURT MAY BE ABLE TO DECIDE WHETHER A
SUBSTANTIAL QUESTION WITHIN ITS JURISDICTION WAS NECESSARILY
DETERMINED.  P. 25. 

HONEYMAN V. HANAN, EXECUTOR. 

APPEAL FROM THE SUPREME COURT OF NEW YORK. 

APPEAL FROM THE AFFIRMANCE OF A JUDGMENT OF THE SUPREME COURT OF NEW
YORK, APPELLATE DIVISION (246 APP. DIV. 781; 285 N.Y.S. 527), WHICH HAD
AFFIRMED A JUDGMENT OF THE SPECIAL TERM DISMISSING THE COMPLAINT IN A
SUIT TO RECOVER A DEFICIENCY JUDGMENT ON A COLLATERAL BOND WHICH HAD
BEEN EXECUTED AS ADDITIONAL SECURITY FOR A BOND AND MORTGAGE DEBT. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

UPON THE FILING OF THE JURISDICTIONAL STATEMENT, THE APPELLEE MOVED
TO DISMISS THE APPEAL UPON THE GROUND THAT THE DECISION OF THE FEDERAL
QUESTION NOW RAISED WAS NOT NECESSARY TO THE DETERMINATION OF THE
CAUSE.  RULE 12, PAR. 3.  FURTHER CONSIDERATION OF THE MOTION WAS
POSTPONED TO THE HEARING UPON THE MERITS. 

THE RECORD IS BRIEF.  THE SUIT WAS BROUGHT AGAINST THE EXECUTOR OF
THE ESTATE OF HERBERT W. HANAN, DECEASED, TO RECOVER A DEFICIENCY
JUDGMENT UPON A BOND SECURED BY A MORTGAGE WHICH HAD BEEN FORECLOSED IN
AN EARLIER SUIT IN WHICH THE MORTGAGED PROPERTY HAD BEEN SOLD AND AN
APPLICATION FOR A DEFICIENCY JUDGMENT HAD BEEN REFUSED.  THE JUDGMENT
IN THE PRESENT SUIT DISMISSED THE AMENDED COMPLAINT UPON THE GROUND
THAT IT DID NOT STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF
ACTION. 

THE AMENDED COMPLAINT ALLEGED THAT IN 1907 THE JOHN H. HANAN REALTY
COMPANY, WITH JOHN H. HANAN, HAD EXECUTED A BOND FOR $118,000, AND AS
COLLATERAL SECURITY THE JOHN H. HANAN REALTY COMPANY HAD MADE A
MORTGAGE COVERING CERTAIN PREMISES IN THE CITY OF NEW YORK; THAT LATER
THE BOND AND MORTGAGE WERE ASSIGNED TO JOHN H. HANAN; THAT IN 1920 JOHN
H. HANAN, TOGETHER WITH HERBERT W. HANAN (DEFENDANT'S TESTATOR) AND
ADDISON G. HANAN, HAD EXECUTED THEIR JOINT AND SEVERAL BOND TO THE
GUARDIANS OF THE ESTATES OF CERTAIN INFANTS IN THE SUM OF $60,000 AND
AS COLLATERAL SECURITY THEREFOR JOHN H. HANAN HAD ASSIGNED TO THE
OBLIGEES THE BOND AND MORTGAGE FIRST MENTIONED; AND THAT THEREAFTER THE
BOND OF JOHN H. HANAN, HERBERT W. HANAN AND ADDISON G. HANAN HAD BEEN
ASSIGNED, TOGETHER WITH THE BOND AND MORTGAGE FIRST MENTIONED, TO THE
PLAINTIFF. 

A COPY OF THE BOND IN SUIT WAS ANNEXED.  IT RECITED THAT IT WAS
EXECUTED AS ADDITIONAL SECURITY FOR THE PAYMENT OF THE FIRST MENTIONED
BOND AND MORTGAGE, UPON WHICH THE PRINCIPAL SUM OF $60,000 REMAINED
UNPAID, AND THAT THE TIME FOR PAYMENT HAD BEEN EXTENDED AS PROVIDED IN
A CONTEMPORANEOUS AGREEMENT.  THE CONDITION OF THE OBLIGATION WAS THE
PAYMENT OF THAT SUM WITH INTEREST AS THE SAME SHOULD BECOME DUE AND
PAYABLE ACCORDING TO THE TERMS AND CONDITIONS OF THE BOND AND MORTGAGE
FIRST MENTIONED AND THE EXTENSION AGREEMENT. 

THE AMENDED COMPLAINT FURTHER ALLEGED THAT THE JOHN H. HANAN REALTY
COMPANY HAD FAILED TO COMPLY WITH THE TERMS OF THE BOND AND MORTGAGE
FIRST MENTIONED AND HAD FAILED TO PAY THE TAXES ON THE MORTGAGED
PREMISES OR THE INTEREST ON THE BOND; THAT THEREUPON, IN SEPTEMBER,
1933, THE PLAINTIFF HAD BROUGHT AN ACTION TO FORECLOSE THE MORTGAGE AND
THAT THE DEFENDANT HEREIN WAS A PARTY TO THAT ACTION; THAT PURSUANT TO
JUDGMENT THEREIN THE MORTGAGED PREMISES WERE SOLD AND THE PROCEEDS WERE
APPLIED ON ACCOUNT OF THE INDEBTEDNESS DUE THE PLAINTIFF; THAT THE
REFEREE'S REPORT OF SALE WAS CONFIRMED; THAT THEREAFTER A MOTION WAS
"DULY MADE FOR A DEFICIENCY JUDGMENT" WHICH WAS DENIED AND THE
FORECLOSURE ACTION WAS DISCONTINUED AS TO THE DEFENDANT HEREIN BY THE
FILING OF A STIPULATION; THAT THE DEFICIENCY DUE THE PLAINTIFF WAS
$58,523.35, UPON WHICH $554.01 HAD BEEN RECEIVED BY THE PLAINTIFF FROM
THE RECEIVER IN THE FORECLOSURE ACTION, LEAVING DUE $57,969.34, WHICH
THE DECEDENT, HERBERT W. HANAN, BECAME BOUND TO PAY. 

THE AMENDED COMPLAINT AND THE MOTION TO DISMISS FOR THE INSUFFICIENCY
OF ITS ALLEGATIONS CONTAINED NO MENTION OF A FEDERAL QUESTION.  THE
TRIAL COURT GRANTED THE MOTION WITH THE MERE STATEMENT THAT "THE
MORTGAGE MORATORIUM LAWS APPLY TO THE FACTS ALLEGED IN THE SAID
COMPLAINT."  THE JUDGMENT OF DISMISSAL WAS AFFIRMED BY THE APPELLATE
DIVISION WITHOUT OPINION.  246 APP. DIV. 781; 285 N.Y.S. 527.  THE
COURT OF APPEALS GRANTED LEAVE TO APPEAL AND IN MAY, 1936, AFFIRMED THE
JUDGMENT, ALSO WITHOUT OPINION.  271 N.Y. 564; 3 N.E.(2D) 186.  IN THE
ENTIRE PROGRESS OF THE CAUSE TO THIS POINT OF DETERMINATION BY THE
HIGHEST COURT OF THE STATE, THE RECORD DISCLOSES NO REFERENCE TO A
FEDERAL QUESTION. 

IN JUNE, 1936, UPON MOTION, THE COURT OF APPEALS AMENDED ITS
REMITTITUR BY ADDING THE FOLLOWING: 

"A QUESTION UNDER THE FEDERAL CONSTITUTION WAS PRESENTED AND
NECESSARILY PASSED UPON BY THIS COURT.  THE PLAINTIFF CONTENDED THAT
CHAPTER 794 OF THE LAWS OF THE STATE OF NEW YORK, ENACTED IN 1933, AS
AMENDED (SECTIONS 1083-A AND 1083-B OF CIVIL PRACTICE ACT), IMPAIR THE
OBLIGATIONS OF CONTRACTS, AND THUS VIOLATE ARTICLE I, SECTION 10, OF
THE CONSTITUTION OF THE UNITED STATES.  THIS COURT HELD THAT SUCH LAWS
DO NOT VIOLATE SAID PROVISION OF ARTICLE I, SECTION 10, OF THE
CONSTITUTION OF THE UNITED STATES."  271 N.Y. 662; 3 N.E.(2D) 473. 

IT IS SOLELY UPON THIS STATEMENT IN THE AMENDED REMITTITUR THAT WE
ARE ASKED TO REVIEW THE JUDGMENT AND TO PASS UPON THE CONSTITUTIONALITY
OF THE STATE STATUTE.  WE ARE NOT AIDED BY ANY DISCUSSION BY THE STATE
COURT OF THE QUESTION THUS DESCRIBED, OR BY ITS EXPLICATION OR
CONSTRUCTION OF THE STATUTE CITED, OR BY A STATEMENT OF THE PARTICULAR
APPLICATION OF THE STATUTE TO WHICH THE PARAGRAPH IN THE AMENDED
REMITTITUR IS ADDRESSED. 

BEFORE WE MAY UNDERTAKE TO REVIEW A DECISION OF THE COURT OF A STATE
IT MUST APPEAR AFFIRMATIVELY FROM THE RECORD, NOT ONLY THAT THE FEDERAL
QUESTION WAS PRESENTED FOR DECISION TO THE HIGHEST COURT OF THE STATE
HAVING JURISDICTION BUT THAT ITS DECISION OF THE FEDERAL QUESTION WAS
NECESSARY TO THE DETERMINATION OF THE CAUSE.  LYNCH V. NEW YORK EX REL.
PIERSON, 293 U.S. 52, 54, AND CASES THERE CITED.  WHETHER THESE
REQUIREMENTS HAVE BEEN MET IS ITSELF A FEDERAL QUESTION.  AS THIS COURT
MUST DECIDE WHETHER IT HAS JURISDICTION IN A PARTICULAR CASE, THIS
COURT MUST DETERMINE WHETHER THE FEDERAL QUESTION WAS NECESSARILY
PASSED UPON BY THE STATE COURT.  THAT DETERMINATION MUST REST UPON AN
EXAMINATION OF THE RECORD.  A CERTIFICATE OR STATEMENT BY THE STATE
COURT  FN1  THAT A FEDERAL QUESTION HAS BEEN PRESENTED TO IT AND
NECESSARILY PASSED UPON IS NOT CONTROLLING.  WHILE SUCH A CERTIFICATE
OR STATEMENT MAY AID THIS COURT IN THE EXAMINATION OF THE RECORD, IT
CANNOT AVAIL TO FORECLOSE THE INQUIRY WHICH IT IS OUR DUTY TO MAKE OR
TO IMPORT INTO THE RECORD A FEDERAL QUESTION WHICH OTHERWISE THE RECORD
WHOLLY FAILS TO PRESENT. 

IN COMMERCIAL BANK OF CINCINNATI V. BUCKINGHAM'S EXECUTORS, 5 HOW. 
317, THIS COURT WAS ASKED TO DECIDE A QUESTION WHICH WAS SAID TO BE
PRESENTED UNDER THE CONTRACT CLAUSE WITH RESPECT TO THE VALIDITY OF A
STATUTE OF OHIO.  THE SUPREME COURT OF THAT STATE ENTERED UPON ITS
RECORD AN ELABORATE CERTIFICATE STATING THAT THE VALIDITY OF THE
STATUTE WAS DRAWN IN QUESTION UPON THE GROUND THAT AS APPLIED TO THE
CHARTER OF THE PLAINTIFFS IN ERROR IT "IMPAIRED THE OBLIGATIONS
THEREOF, AND WAS REPUGNANT TO THE CONSTITUTION OF THE UNITED STATES,
AND THAT THE DECISION OF THIS COURT (THE OHIO COURT) WAS IN FAVOR OF
THE VALIDITY OF THE SAID ACT OF THE LEGISLATURE AS SO APPLIED." 
NOTWITHSTANDING THE CERTIFICATE, THE CASE WAS DISMISSED FOR WANT OF
JURISDICTION.  ID., P. 343.  THE COURT SAID: 

"IT IS NOT ENOUGH, THAT THE RECORD SHOWS THAT 'THE PLAINTIFF IN ERROR
CONTENDED AND CLAIMED' THAT THE JUDGMENT OF THE COURT IMPAIRED THE
OBLIGATION OF A CONTRACT, AND VIOLATED THE PROVISIONS OF THE
CONSTITUTION OF THE UNITED STATES, AND 'THAT THIS CLAIM WAS OVERRULED
BY THE COURT'; BUT IT MUST APPEAR, BY CLEAR AND NECESSARY INTENDMENT,
THAT THE QUESTION MUST HAVE BEEN RAISED, AND MUST HAVE BEEN DECIDED, IN
ORDER TO INDUCE THE JUDGMENT.  LET US INQUIRE, THEN, WHETHER IT APPEARS
ON THE FACE OF THIS RECORD, THAT THE VALIDITY OF A STATUTE OF OHIO, 'ON
THE GROUND OF ITS REPUGNANCY TO THE CONSTITUTION OR LAWS OF THE UNITED
STATES' WAS DRAWN IN QUESTION IN THIS CASE."  ID., P. 341. 

PURSUING THAT ESSENTIAL INQUIRY, THE COURT FOUND THAT THE QUESTION
DECIDED BY THE STATE COURT WAS ONE OF THE CONSTRUCTION OF THE STATUTE
AND NOT OF ITS VALIDITY. 

IN LAWLER V. WALKER, 14 HOW.  149, THE SUPREME COURT OF OHIO
CERTIFIED THAT THE VALIDITY OF STATUTES OF THE STATE HAD BEEN DRAWN IN
QUESTION AS BEING IN VIOLATION OF THE FEDERAL CONSTITUTION AND THAT THE
COURT HAD HELD THE STATUTES TO BE VALID.  THE CERTIFICATE IN THAT CASE
WAS FOUND TO BE VAGUE AND INDEFINITE BUT THE COURT ALSO RESTATED THE
ABOVE-QUOTED RULING OF COMMERCIAL BANK OF CINCINNATI V. BUCKINGHAM'S
EXECUTORS, SUPRA.  WHILE IN PARMELEE V. LAWRENCE, 11 WALL.  36, THE
CERTIFICATE WAS MADE BY THE PRESIDING JUDGE OF THE STATE COURT AND NOT
BY THE COURT ITSELF, WE TOOK OCCASION TO SAY: 

"WE WILL ADD, IF THIS COURT SHOULD ENTERTAIN JURISDICTION UPON A
CERTIFICATE ALONE IN THE ABSENCE OF ANY EVIDENCE OF THE QUESTION IN THE
RECORD, THEN THE SUPREME COURT OF THE STATE CAN GIVE THE JURISDICTION
IN EVERY CASE WHERE THE QUESTION IS MADE BY COUNSEL IN THE ARGUMENT. 
THE OFFICE OF THE CERTIFICATE, AS IT RESPECTS THE FEDERAL QUESTION, IS
TO MAKE MORE CERTAIN AND SPECIFIC WHAT IS TOO GENERAL AND INDEFINITE IN
THE RECORD, BUT IT IS INCOMPETENT TO ORIGINATE THE QUESTION WITHIN THE
TRUE CONSTRUCTION OF THE 25TH SECTION (OF THE JUDICIARY ACT)."  ID., P.
39. 

THIS STATEMENT WAS QUOTED WITH APPROVAL IN POWELL V. BRUNSWICK
COUNTY, 150 U.S. 433, 439. 

THE CASE OF BROWN V. ATWELL, 92 U.S. 327, AFFORDS ANOTHER
ILLUSTRATION OF THE RULE.  THE JUDGMENT WAS RENDERED IN THE COURT OF
APPEALS OF NEW YORK AND AN ENTRY WAS MADE IN ITS RECORD THAT ON THE
ARGUMENT OF THE APPEAL IT WAS CLAIMED BY THE APPELLANT THAT THE ACT OF
CONGRESS OF 1836, KNOWN AS THE PATENT ACT, GOVERNED THE EFFECT OF THE
SEVERAL TRANSFERS RELATING TO THE LETTERS PATENT APPEARING IN THE CASE,
AND THAT THE COURT HAD DECIDED AGAINST THE CLAIMS URGED UNDER THAT
ACT.  THIS COURT OBSERVED THAT, UNTIL THE CERTIFICATE OF THE COURT OF
APPEALS, IT NOWHERE APPEARED IN THE RECORD THAT ANY QUESTION WAS RAISED
AS TO THE EFFECT OF THE PATENT LAWS UPON THE TITLE UNDER
CONSIDERATION.  AND THE COURT SAID (ID., PP. 329, 330): 

"WE HAVE OFTEN DECIDED THAT IT IS NOT ENOUGH TO GIVE US JURISDICTION
OVER THE JUDGMENTS OF THE STATE COURTS FOR THE RECORD TO SHOW THAT A
FEDERAL QUESTION WAS ARGUED OR PRESENTED TO THAT COURT FOR DECISION. 
IT MUST APPEAR THAT ITS DECISION WAS NECESSARY TO THE DETERMINATION OF
THE CAUSE, AND THAT IT WAS ACTUALLY DECIDED, OR THAT THE JUDGMENT AS
RENDERED COULD NOT HAVE BEEN GIVEN WITHOUT DECIDING IT.  COMMERCIAL
NATIONAL BANK OF CINCINNATI V. BUCKINGHAM'S EXECUTORS, 5 HOW.  341;
LAWLER ET AL. V. WALKER ET AL., 14 ID. 154; R.R. CO. V. ROCK, 4 WALL. 
180; PARMELEE V. LAWRENCE, 11 ID. 38. 

"THE SAME CASES ALSO ESTABLISH THE FURTHER RULE, THAT 'THE OFFICE OF
THE CERTIFICATE, AS IT RESPECTS THE FEDERAL QUESTION, IS TO MAKE MORE
SPECIFIC AND CERTAIN THAT WHICH IS TOO GENERAL AND INDEFINITE IN THE
RECORD, BUT IS INCOMPETENT TO ORIGINATE THE QUESTION'." 

THE COURT FOUND THAT THE RECORD DID NOT PRESENT THE FEDERAL QUESTION
TO WHICH THE CERTIFICATE REFERRED AND THE CASE WAS ACCORDINGLY
DISMISSED. 

THE RULE WAS SUCCINCTLY STATED IN RECTOR V. CITY DEPOSIT BANK CO.,
200 U.S. 405, 412, AS FOLLOWS: 

"IT IS ELEMENTARY THAT THE CERTIFICATE OF A COURT OF LAST RESORT OF A
STATE MAY NOT IMPORT A FEDERAL QUESTION INTO A RECORD WHERE OTHERWISE
SUCH QUESTION DOES NOT ARISE, IT IS EQUALLY ELEMENTARY THAT SUCH A
CERTIFICATE MAY SERVE TO ELUCIDATE THE DETERMINATION WHETHER A FEDERAL
QUESTION EXISTS." 

THUS THE TRUE FUNCTION OF A CERTIFICATE OR STATEMENT OF A STATE
COURT, BY WAY OF AMENDMENT OF, OR ADDITION TO, THE RECORD, IS TO AID IN
THE UNDERSTANDING OF THE RECORD, TO CLARIFY IT BY DEFINING THE FEDERAL
QUESTION WITH REASONABLE PRECISION AND BY SHOWING HOW THE QUESTION WAS
RAISED AND DECIDED, SO THAT THIS COURT UPON THE RECORD AS THUS
CLARIFIED MAY BE ABLE TO SEE THAT THE FEDERAL QUESTION WAS PROPERLY
RAISED AND WAS NECESSARILY DETERMINED.  OUR DECISIONS IN CASES WHERE
CERTIFICATES HAVE BEEN FOUND USEFUL SHOULD BE READ IN THE LIGHT OF THAT
FUNDAMENTAL CONSIDERATION.  IN MARVIN V. TROUT, 199 U.S. 212, 223, AS
EXPLAINED IN CONSOLIDATED TURNPIKE CO. V. NORFOLK & OCEAN VIEW RY. CO.,
228 U.S. 596, 599, THERE WAS "A RECORD DISCLOSURE OF THE EXISTENCE OF
THE FEDERAL QUESTION," WHICH WAS ALSO CERTIFIED.  IN THE LATTER CASE IT
WAS ASSUMED THAT THE CERTIFICATE, MADE BY ORDER OF THE STATE COURT,
OPERATED TO SHOW THAT SOME FEDERAL QUESTION WAS DECIDED, BUT ON
EXAMINING THE RECORD THIS COURT FOUND THE QUESTION TO BE UNSUBSTANTIAL
AND DENIED REHEARING, THE CASE HAVING PREVIOUSLY BEEN DISMISSED FOR
WANT OF JURISDICTION.  ID., P. 603.  THE RECORD IN CINCINNATI PACKET
CO. V. BAY, 200 U.S. 179, 182, SHOWED THAT THE FEDERAL QUESTION HAD
BEEN RAISED AND THE CERTIFICATE AIDED IN DISCLOSING THAT THE QUESTION
WAS NOT TREATED AS HAVING BEEN RAISED TOO LATE UNDER THE LOCAL
PROCEDURE, A POINT UPON WHICH THE STATE COURT WAS THE JUDGE.  APPLYING
THE RULE, IN RECTOR V. CITY DEPOSIT BANK CO., SUPRA, THE COURT
CONCLUDED THAT AS THE SUIT WAS BROUGHT BY A TRUSTEE IN BANKRUPTCY BY
VIRTUE OF THE AUTHORITY CONFERRED UPON HIM BY THE ACT OF CONGRESS THE
CERTIFICATE MADE "CLEAR THE EFFECT, IF IT WERE OTHERWISE DOUBTFUL, THAT
RIGHTS UNDER THE BANKRUPT LAW WERE RELIED UPON AND PASSED UPON BELOW." 
SEE, ALSO, CAPITAL CITY DAIRY CO. V. OHIO, 183 U.S. 238, 243, 244.  IT
WAS IN THE LIGHT OF THESE DECISIONS THAT THE QUESTION WAS PRESENTED IN
WHITNEY V. CALIFORNIA, 274 U.S. 357, 360-362.  THE WRIT OF ERROR HAD
BEEN DISMISSED FOR WANT OF JURISDICTION (269 U.S. 530) AND A MOTION FOR
REHEARING WAS GRANTED.  ID., P. 538.  THE COURT OF APPEAL OF THE STATE,
AS AN ADDITION TO THE RECORD, ENTERED AN ORDER STATING THAT THE
QUESTION WHETHER THE CALIFORNIA CRIMINAL SYNDICALISM ACT AND ITS
APPLICATION WERE REPUGNANT TO THE FOURTEENTH AMENDMENT TO THE FEDERAL
CONSTITUTION WAS CONSIDERED AND PASSED UPON BY THE COURT.  WHILE THIS
COURT SAID THAT THE RECORD DID NOT SHOW THAT THE DEFENDANT HAD RAISED
OR THE STATE COURT HAD DECIDED A FEDERAL QUESTION EXCEPT AS IT APPEARED
FROM THAT ORDER, THE RECORD DID DISCLOSE FACTS INDICATING THE PRESENCE
OF THE FEDERAL QUESTION WHICH THE ORDER OF THE STATE COURT SAID WAS
ACTUALLY PRESENTED AND DECIDED, AND ACCORDINGLY JURISDICTION WAS
ENTERTAINED.  AND IT HAS BEEN IN RECOGNITION OF THE ESTABLISHED
PRINCIPLE GOVERNING THE EXERCISE OF OUR JURISDICTION, AND NOT AS A
DEPARTURE FROM IT, THAT WE HAVE SAID THAT OPPORTUNITY MIGHT BE AFFORDED
UPON SEASONABLE APPLICATION TO OBTAIN A CERTIFICATE FROM THE STATE
COURT WHERE IT APPEARED THAT AN APPROPRIATE CERTIFICATE MIGHT LEAD TO A
BETTER UNDERSTANDING OF THE RECORD.  SEE LYNCH V. NEW YORK EX REL.
PIERSON, SUPRA; INTERNATIONAL STEEL CO. V. SURETY CO., 297 U.S. 657,
662. 

IN SOME OF THE CASES CITED ABOVE, WE FOUND FROM OUR EXAMINATION OF
THE RECORD THAT, NOTWITHSTANDING THE CERTIFICATE, THE DECISION OF THE
STATE COURT RESTED UPON AN ADEQUATE NON-FEDERAL GROUND AND HENCE WE
WERE WITHOUT JURISDICTION.  SEE COMMERCIAL BANK OF CINCINNATI V.
BUCKINGHAM'S EXECUTORS, SUPRA; BROWN V. ATWELL, SUPRA; POWELL V.
BRUNSWICK COUNTY, SUPRA.  A SIMILAR RESULT FOLLOWS WHERE, EVEN ASSUMING
THAT THE STATE COURT HAS FORMALLY DETERMINED A FEDERAL QUESTION, IT
DOES NOT APPEAR TO HAVE BEEN A SUBSTANTIAL ONE.  SEE CONSOLIDATED
TURNPIKE CO. V. NORFOLK & OCEAN VIEW RY. CO., SUPRA.  IN OTHER CASES AN
EXAMINATION OF THE RECORD HAS LEFT THE COURT IN DOUBT AS TO WHAT HAS
ACTUALLY BEEN DETERMINED.  THAT IS THE SITUATION IN THE PRESENT CASE. 

THE APPELLEE POINTS TO THE PROVISION OF SEC. 1078 OF THE CIVIL
PRACTICE ACT OF NEW YORK (ENACTED LONG BEFORE THE SO-CALLED MORATORIUM
ACTS) THAT, AFTER FINAL JUDGMENT FOR THE PLAINTIFF IN A FORECLOSURE
ACTION, NO OTHER ACTION SHALL BE MAINTAINED TO RECOVER ANY PART OF THE
MORTGAGE DEBT WITHOUT LEAVE OF THE COURT IN WHICH THE FORMER ACTION WAS
BROUGHT.  IN THE INSTANT CASE THE AMENDED COMPLAINT DOES NOT ALLEGE
THAT SUCH LEAVE WAS OBTAINED.  WE ARE ALSO ADVISED OF DECISIONS BY THE
STATE COURT, PRIOR TO THE ONE HERE SOUGHT TO BE REVIEWED, CONSTRUING
CHAPTER 794 OF THE LAWS OF NEW YORK OF 1933(SECS.  1083-A AND 1083-B OF
THE CIVIL PRACTICE ACT) TO WHICH THE AMENDED REMITTITUR REFERS.  THAT
ACT (SEC. 1083-A) FORBIDS A JUDGMENT FOR ANY RESIDUE OF THE DEBT,
REMAINING UNSATISFIED AFTER SALE OF THE MORTGAGED PROPERTY, EXCEPT AS
THEREIN PROVIDED.  PROVISION IS MADE FOR AN APPLICATION BY THE CREDITOR
IN THE FORECLOSURE ACTION FOR LEAVE TO ENTER A DEFICIENCY JUDGMENT, AND
THEREUPON THE COURT IS TO DETERMINE THE FAIR AND REASONABLE MARKET
VALUE OF THE MORTGAGED PREMISES AND IS TO MAKE AN ORDER DIRECTING THE
ENTRY OF A DEFICIENCY JUDGMENT, WHICH IS TO BE FOR AN AMOUNT EQUAL TO
THAT REMAINING DUE LESS THE MARKET VALUE AS DETERMINED OR THE SALE
PRICE OF THE PROPERTY WHICHEVER SHALL BE THE HIGHER; AND IF NO MOTION
FOR A DEFICIENCY JUDGMENT IS THUS MADE, THE PROCEEDS OF THE FORECLOSURE
SALE ARE TO BE REGARDED AS FULL SATISFACTION OF THE MORTGAGE DEBT "AND
NO RIGHT TO RECOVER ANY DEFICIENCY IN ANY ACTION OR PROCEEDING SHALL
EXIST."  SECTION 1083-B PROVIDES THAT IN ACTIONS, OTHER THAN
FORECLOSURE ACTIONS, TO RECOVER FOR AN INDEBTEDNESS SECURED SOLELY BY A
MORTGAGE ON REAL PROPERTY AND ORIGINATING SIMULTANEOUSLY WITH SUCH
MORTGAGE AND SECURED THEREBY, AGAINST ANY ONE "DIRECTLY OR INDIRECTLY
OR CONTINGENTLY LIABLE THEREFOR," THE PARTY AGAINST WHOM THE MONEY
JUDGMENT IS DEMANDED SHALL BE ENTITLED TO SET OFF THE REASONABLE MARKET
VALUE OF THE MORTGAGED PROPERTY LESS PRIOR LIENS.  THE COURT OF APPEALS
HAD SUSTAINED THE CONSTITUTIONAL VALIDITY OF THIS LEGISLATION WHICH
WOULD SEEM TO BE APPLICABLE TO AN ACTION UPON A COLLATERAL BOND SUCH AS
THAT DESCRIBED IN THE AMENDED COMPLAINT HEREIN.  SEE KLINKE V. SAMUELS,
264 N.Y. 144; CITY BANK FARMERS TRUST CO. V. ARDLEA INCORPORATION, 267
N.Y. 224. 

WITH THESE RECENT DECISIONS IN MIND, IT MAY BE, AS HAS BEEN
SUGGESTED, THAT THE COURT OF APPEALS CONSIDERED THE FEDERAL QUESTION,
WHICH IT DESCRIBED IN THE AMENDED REMITTITUR AS RELATING TO THE
VALIDITY OF SECS. 1083-A AND 1083-B, TO BE NO MORE THAN A CHALLENGE OF
THE REQUIREMENT THAT THE RIGHT TO A DEFICIENCY JUDGMENT SHOULD BE HEARD
AND DETERMINED IN THE FORECLOSURE ACTION, AND SUSTAINED THE VALIDITY OF
THAT REQUIREMENT, WITHOUT REVIEWING, OR DEEMING IT NECESSARY TO REVIEW,
THE QUESTIONS WHICH COULD HAVE BEEN RAISED, AND IF PROPERLY RAISED
COULD HAVE BEEN BROUGHT TO THIS COURT IN THE FORECLOSURE ACTION TO
WHICH BOTH THE PLAINTIFF AND DEFENDANT HEREIN HAD BEEN PARTIES. 
WHETHER THIS VIEW OF THE ACTION OF THE STATE COURT IS THE CORRECT ONE,
WE ARE UNABLE SATISFACTORILY TO DETERMINE.  IF ITS DECISION WAS IN
TRUTH BASED UPON THE THEORY THAT BY A PROPER CONSTRUCTION OF THE
STATUTE OR FOR ANY OTHER REASON THE EXTENT OF THE DEFICIENCY OR THE
RIGHT TO RECOVER IT HAD BEEN FINALLY DETERMINED IN A PRIOR LITIGATION,
THERE WAS NO LONGER A NECESSITY TO INQUIRE WHETHER THE STATUTE WOULD BE
CONSTITUTIONAL IN ITS APPLICATION TO A DIFFERENT CASE - A CASE LACKING
THE FEATURE OF ANY PRIOR DETERMINATION - , AND AN ANSWER TO THAT
INQUIRY WOULD BE SUPERFLUOUS, EVEN IF ATTEMPTED. 

IN THE EXERCISE OF OUR APPELLATE JURISDICTION WE HAVE POWER NOT ONLY
TO CORRECT ERRORS IN THE JUDGMENT UNDER REVIEW BUT TO MAKE SUCH
DISPOSITION OF THE CASE AS JUSTICE REQUIRES.  WE HAVE APPLIED THIS
PRINCIPLE TO CASES COMING FROM STATE COURTS WHERE SUPERVENING CHANGES
HAD OCCURRED SINCE THE ENTRY OF THE JUDGMENT, AND WHERE THE RECORD
FAILED ADEQUATELY TO STATE THE FACTS UNDERLYING THE DECISION OF THE
FEDERAL QUESTION.  SEE PATTERSON V. ALABAMA, 294 U.S. 600, 607; VILLA
V. VAN SCHAICK, 299 U.S. 152.  WE HAVE AFFORDED AN OPPORTUNITY FOR
APPROPRIATE PRESENTATION OF THE QUESTION BY AN AMENDMENT OF THE RECORD
AS THE STATE COURT MIGHT BE ADVISED.  VILLA V. VAN SCHAICK, SUPRA.  WE
THINK THAT A SIMILAR OPPORTUNITY SHOULD BE ACCORDED HERE IN ORDER THAT
UNCERTAINTY MAY BE REMOVED AND THAT THE PRECISE NATURE OF THE FEDERAL
QUESTION, HOW IT WAS RAISED AND THE GROUNDS OF ITS DISPOSITION, MAY BE
DEFINITELY SET FORTH, SO THAT WE MAY BE ABLE TO DECIDE WHETHER A
SUBSTANTIAL QUESTION WITHIN OUR JURISDICTION HAS NECESSARILY BEEN
DETERMINED. 

FOR THAT PURPOSE THE JUDGMENT IS VACATED AND THE CAUSE IS REMANDED
FOR FURTHER PROCEEDINGS.  JUDGMENT VACATED. 

FN1  AS TO THE INSUFFICIENCY OF A CERTIFICATE BY THE CHIEF JUSTICE OR
PRESIDING JUSTICE OF THE STATE COURT, SEE RAILROAD CO. V. ROCK, 4
WALL.  177, 178, 180; POWELL V. BRUNSWICK COUNTY, 150 U.S. 433, 439;
SAYWARD V. DENNY, 158 U.S. 180, 183; HENKEL V. CINCINNATI, 177 U.S.
170, 171; HOME FOR INCURABLES V. NEW YORK, 187 U.S. 155, 158; FULLERTON
V. TEXAS, 196 U.S. 192, 194; LOUISVILLE & NASHVILLE R. CO. V. SMITH,
HUGGINS & CO., 204 U.S. 551, 561; SEABOARD AIR LINE RY. V. DUVALL, 225
U.S. 477, 481; CONNECTICUT GENERAL LIFE INS. CO. V. JOHNSON, 296 U.S.
535; PURCELL V. NEW YORK CENTRAL R. CO., 296 U.S. 545. 
..END :



















O'CONNOR V. MILLS, 300 U.S. 26 


NO. 442.  SUBMITTED JANUARY 12, 1937.  - DECIDED FEBRUARY 1, 1937.  - 85
F.(2D) 1017, REVERSED. 


1.  PARAGRAPH (K) OF SEC. 77B OF THE BANKRUPTCY ACT MAKES SECS. 24 AND
25 OF THE ACT APPLICABLE TO APPEALS FROM ORDERS AND JUDGMENTS ENTERED
IN REORGANIZATION PROCEEDINGS UNDER SEC. 77B.  P. 27. 

2.  A JUDGMENT OF THE DISTRICT COURT DISAPPROVING AND DISMISSING A
PETITION FOR REORGANIZATION OF A CORPORATION UNDER SEC. 77B OF THE
BANKRUPTCY ACT IS IN THE SAME CATEGORY, FOR THE PURPOSES OF APPEAL, AS
A JUDGMENT REFUSING TO ADJUDGE THE DEFENDANT A BANKRUPT, AND UNDER SEC.
25(A), CL. (1) IS APPEALABLE AS OF RIGHT TO THE CIRCUIT COURT OF
APPEALS.  P. 27. 

O'CONNOR ET AL. V. MILLS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 299 U.S. 536, TO REVIEW AN ORDER DISMISSING AN APPEAL. 

PER CURIAM. 

PETITIONERS FILED A CREDITORS' PETITION UNDER SEC. 77B OF THE
BANKRUPTCY ACT PROPOSING THE REORGANIZATION OF WHITE & BLACK RIVERS
BRIDGE COMPANY, A CORPORATION.  THE DEBTOR ANSWERED, SEEKING APPROVAL
OF THE PETITION.  MEMBERS OF A BONDHOLDERS' PROTECTIVE COMMITTEE,
HOLDING BONDS ISSUED BY THE CORPORATION, FILED A RESPONSE TO THE
PETITION, ALLEGING THAT IT WAS NOT FILED IN GOOD FAITH AND ASKING THAT
IT BE DISAPPROVED AND DISMISSED.  PETITIONERS REPLIED.  AFTER ALLOWING
THIRTY DAYS TO AFFORD AN OPPORTUNITY TO ASCERTAIN THE POSSIBILITY OF
THE SUBMISSION OF A FEASIBLE PLAN OF REORGANIZATION, THE DISTRICT
COURT, UPON HEARING, DISMISSED THE PETITION AS INSUFFICIENT TO MEET THE
REQUIREMENTS OF SEC. 77B. 

THE DISTRICT COURT ALLOWED AN APPEAL UPON THE GIVING OF A BOND AND
THE APPEAL WAS PERFECTED ACCORDINGLY.  THE APPELLEES MOVED TO DISMISS
THE APPEAL UPON THE GROUND THAT IT WAS UNAUTHORIZED BY LAW AS IT HAD
NOT BEEN ALLOWED BY THE CIRCUIT COURT OF APPEALS.  THAT COURT GRANTED
THE MOTION AND THE APPEAL WAS DISMISSED.  WE ISSUED A WRIT OF
CERTIORARI.  NOVEMBER 16, 1936. 

PARAGRAPH (K) OF SEC. 77B PROVIDES THAT THE OTHER SECTIONS OF THE
BANKRUPTCY ACT SHALL APPLY TO PROCEEDINGS UNDER SEC. 77B, UNLESS
INCONSISTENT WITH IT, AND THAT "THE DATE OF THE ORDER APPROVING THE
PETITION OR ANSWER UNDER THIS SECTION SHALL BE TAKEN TO BE THE DATE OF
ADJUDICATION, AND SUCH ORDER SHALL HAVE THE SAME CONSEQUENCES AND
EFFECT AS AN ORDER OF ADJUDICATION."  THE EFFECT OF THIS PROVISION IS
TO MAKE SECS. 24 AND 25 OF THE BANKRUPTCY ACT APPLICABLE TO APPEALS
FROM ORDERS AND JUDGMENTS ENTERED IN PROCEEDINGS UNDER SEC. 77B. 

IN BANKRUPTCY PROCEEDINGS FROM THE COURTS OF BANKRUPTCY TO THE CIRCUIT
COURTS OF APPEALS IN THE CASES ENUMERATED, THE FIRST OF WHICH IS -
"FROM A JUDGMENT ADJUDGING OR REFUSING TO ADJUDGE THE DEFENDANT A
BANKRUPT."  WHILE PARAGRAPH (K) REFERS TO "THE ORDER APPROVING THE
PETITION OR ANSWER" UNDER SEC. 77B, WHICH IS TO HAVE "THE SAME
CONSEQUENCES AND EFFECT AS AN ORDER OF ADJUDICATION," WE THINK THAT TO
CARRY OUT THE MANIFEST INTENT OF THE STATUTE, AN ORDER DISAPPROVING THE
PETITION OR ANSWER UNDER SEC. 77B SHOULD HAVE THE SAME EFFECT FOR THE
PURPOSE OF APPEAL AS AN ORDER REFUSING ADJUDICATION.  INTERPRETING THE
STATUTE IN THAT SENSE, WE SAID IN MEYER V. KENMORE HOTEL CO., 297 U.S.
160, 163, 164: 

"THE APPEAL PROVISIONS OF SECS. 24 AND 25 OF THE BANKRUPTCY ACT ARE
THUS MADE APPLICABLE TO ORDERS ENTERED IN THE COURSE OF A
REORGANIZATION PROCEEDING, AND AN ORDER APPROVING OR DISAPPROVING A
PETITION FOR REORGANIZATION IS MADE THE EQUIVALENT, AT LEAST FOR
PURPOSES OF AN APPEAL UNDER SEC. 25(A), OF A JUDGMENT ADJUDGING OR
REFUSING TO ADJUDGE THE DEFENDANT A BANKRUPT.  BY SEC. 24(A) AND (B)
APPEALS IN 'PROCEEDINGS' IN BANKRUPTCY, AS DISTINGUISHED FROM APPEALS
IN 'CONTROVERSIES ARISING IN BANKRUPTCY,' MAY BE TAKEN ONLY ON LEAVE
GRANTED IN THE DISCRETION OF THE APPELLATE COURT, EXCEPT THAT IN THE
CASES ENUMERATED IN SEC. 25(A), INCLUDING, IN CLAUSE (1), 'A JUDGMENT
ADJUDGING OR REFUSING TO ADJUDGE THE DEFENDANT A BANKRUPT,' AN APPEAL
MAY BE TAKEN AS OF RIGHT." 

THE INSTANT CASE IS NOT ONE WHERE THE PETITION HAD BEEN APPROVED AND
THE APPEAL WAS FROM A SUBSEQUENT ORDER DENYING AN APPLICATION TO
DISMISS THE PROCEEDING OR FROM AN ORDER CONFIRMING OR REFUSING TO
CONFIRM A PLAN OF REORGANIZATION.  SEE MEYER V. KENMORE HOTEL CO.,
SUPRA, PP. 161, 162, 164, 166; HUMPHREY V. BANKERS MORTGAGE CO., 79
F.(2D) 345, 349, 350.  THE APPEAL IS FROM A JUDGMENT WHICH DISAPPROVED
AND DISMISSED THE PETITION AND SHOULD BE TREATED AS IN THE SAME
CATEGORY AS AN APPEAL FROM A JUDGMENT REFUSING TO ADJUDICATE THE
DEFENDANT A BANKRUPT AND HENCE AS APPEALABLE UNDER SEC. 25(A).  THE
CIRCUIT COURT OF APPEALS SHOULD HAVE ENTERTAINED THE APPEAL AND
DISPOSED OF IT UPON THE MERITS. 

THE ORDER OF THE CIRCUIT COURT OF APPEALS IS REVERSED AND THE CAUSE
IS REMANDED FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION. 
REVERSED. 
..END :
























WAYNE COUNTY V. GREAT LAKES CORP., 300 U.S. 29 


NO. 253.  ARGUED JANUARY 12, 13, 1937.  - DECIDED FEBRUARY 1, 1937.  -
12 F.SUPP.  55, AFFIRMED. 


A STATUTE OF MICHIGAN ESTABLISHING A COUNTY BOARD OF REVIEW OF TAX
ASSESSMENTS, APPLICABLE ONLY TO COUNTIES HAVING A POPULATION IN EXCESS
OF 500,000, VIOLATES SEC. 30 OF ART. V OF THE MICHIGAN CONSTITUTION,
WHICH FORBIDS THE PASSING OF A LOCAL OR SPECIAL ACT IN ANY CASE WHERE A
GENERAL ACT CAN BE MADE APPLICABLE. 

WAYNE COUNTY BOARD OF REVIEW ET AL. V. GREAT LAKES STEEL CORP. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF MICHIGAN. 

PER CURIAM. 

APPELLEE BROUGHT THIS SUIT TO RESTRAIN THE ENFORCEMENT, IN RELATION
TO AN ASSESSMENT UPON ITS PROPERTY, OF A STATUTE OF MICHIGAN
ESTABLISHING A COUNTY BOARD OF REVIEW.  ACT NO. 33, PUBLIC ACTS OF
MICHIGAN, FIRST EXTRA SESSION, 1934. 

THE ACT ESTABLISHED A COUNTY BOARD OF REVIEW OF ASSESSMENTS FOR
COUNTIES HAVING A POPULATION IN EXCESS OF 500,000.  THE ACT WAS
ATTACKED AS INVALID UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS. 
INTERLOCUTORY AND PERMANENT INJUNCTIONS WERE SOUGHT.  THE DISTRICT
COURT, THREE JUDGES SITTING (28 U.S.C. 380), HELD THAT THE REQUISITE
JURISDICTIONAL AMOUNT WAS IN CONTROVERSY AND THAT THERE WAS GROUND FOR
THE EXERCISE OF EQUITABLE JURISDICTION. 

WITH RESPECT TO THE STATE CONSTITUTION, APPELLEE CONTENDED THAT THE
STATUTE, BY REASON OF THE REQUIREMENT AS TO POPULATION, WAS LIMITED IN
EFFECT TO WAYNE COUNTY AND THUS WAS A LOCAL AND SPECIAL ACT IN A CASE
WHERE A GENERAL ACT COULD BE MADE APPLICABLE, AND VIOLATED SEC. 30 OF
ARTICLE V OF THE CONSTITUTION OF MICHIGAN, WHICH PROVIDES: 

"THE LEGISLATURE SHALL PASS NO LOCAL OR SPECIAL ACT IN ANY CASE WHERE
A GENERAL ACT CAN BE MADE APPLICABLE, AND WHETHER A GENERAL ACT CAN BE
MADE APPLICABLE SHALL BE A JUDICIAL QUESTION." 

THE DISTRICT COURT OF THE EASTERN DISTRICT OF MICHIGAN, COMPOSED OF
THREE JUDGES ESPECIALLY VERSED IN THE JURISPRUDENCE OF THE STATE,
SUSTAINED THAT CONTENTION AND GRANTED A PERMANENT INJUNCTION.  12
F.SUPP.  55.  WE ARE UNABLE TO CONCLUDE THAT THE COURT ERRED IN
DECIDING THIS QUESTION OF STATE LAW AND WE ACCORDINGLY AFFIRM ITS
DECREE.  DECREE AFFIRMED. 
..END :




U.S. EX REL. WILHELM V. CHAIN, 300 U.S. 31 


NO. 335.  ARGUED JANUARY 8, 1937.  - DECIDED FEBRUARY 1, 1937.  - 84
F.(2D) 138, REVERSED - DISTRICT COURT AFFIRMED. 


1.  A BOND, WITH SURETIES, GIVEN BY A NATIONAL BANK PURSUANT TO THE
BANKRUPTCY LAW AND ORDERS, TO INDUCE THE APPOINTMENT OF THE BANK AS A
DESIGNATED DEPOSITORY OF BANKRUPTCY FUNDS, IS NOT A MERE OFFER, LIKE A
CONTINUING GUARANTY OF FUTURE PERFORMANCES REVOCABLE UNTIL SOMETHING IS
DONE UNDER IT, BUT IS A CONTRACT GIVEN UPON PRESENT, ADEQUATE AND
INDIVISIBLE CONSIDERATION - I.E., THE DESIGNATION OF THE BANK AS
DEPOSITORY - WHICH BECOMES BINDING WHEN DELIVERED TO AND APPROVED BY
THE BANKRUPTCY COURT.  P. 32. 

2.  THE OBLIGATION OF A SURETY ON SUCH A BOND, IN THE ABSENCE OF ANY
STIPULATION TO THE CONTRARY, SURVIVES HIS DEATH AND BINDS HIS PERSONAL
REPRESENTATIVE FOR DEFAULTS COMMITTED BY THE DEPOSITORY AFTER THE DEATH
IN RESPECT OF DEPOSITS MADE AFTER THE DEATH.  P. 34. 

UNITED STATES EX REL. WILHELM, TRUSTEE, ET AL. V. CHAIN, EXECUTRIX. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 299 U.S. 531, TO REVIEW THE REVERSAL OF A JUDGMENT
RECOVERED BY A TRUSTEE IN BANKRUPTCY AGAINST THE EXECUTRIX OF A
DECEASED SURETY ON THE BOND GIVEN BY THE BANK AS A DEPOSITORY OF FUNDS
OF BANKRUPT ESTATES. 

MR. JUSTICE VAN DEVANTER DELIVERED THE OPINION OF THE COURT. 

THIS WAS AN ACTION ON THE BOND OF A DESIGNATED DEPOSITORY FOR MONEY
OF BANKRUPT ESTATES.  THE CASE WILL BE STATED. 

JULY 22, 1924, A NATIONAL BANK AT KINGWOOD, WEST VIRGINIA, WAS
DESIGNATED BY THE BANKRUPTCY COURT OF THAT DISTRICT AS A DEPOSITORY FOR
FUNDS OF BANKRUPT ESTATES, SUBJECT TO THE REQUIREMENT THAT THE BANK
GIVE A BOND IN THE PENAL SUM OF $5,000 AND THAT THE BOND HAVE THE
COURT'S APPROVAL.  LATER IN THE SAME MONTH THE BOND WAS GIVEN BY THE
BANK AND APPROVED BY THE COURT.  THEREUPON THE BANK BECAME AN
AUTHORIZED DEPOSITORY, AND IT CONTINUED TO BE SUCH, WITHOUT GIVING ANY
FURTHER BOND, UNTIL JUNE 22, 1931, WHEN IT FAILED. 

THE BOND WAS UNDER SEAL; NAMED THE UNITED STATES AS OBLIGEE; WAS
SIGNED BY THE BANK AND TWO INDIVIDUAL SURETIES, AS OBLIGORS; DECLARED
THAT THE OBLIGORS WERE THEREBY BINDING THEMSELVES, THEIR HEIRS,
EXECUTORS, ADMINISTRATORS, AND SUCCESSORS, JOINTLY AND SEVERALLY;
RECITED THE DESIGNATION OF THE BANK AS A DEPOSITORY; AND WAS
CONDITIONED FOR THE FAITHFUL DISCHARGE AND PERFORMANCE BY THE BANK OF
ALL DUTIES PERTAINING TO IT AS A DEPOSITORY. 

BETWEEN AUGUST 12, 1930, AND JUNE 22, 1931, CHARLES P. WILHELM, AS
TRUSTEE FOR THE ESTATE OF W. H. PENTONY, A BANKRUPT, DEPOSITED IN THE
BANK, AS A DESIGNATED DEPOSITORY, VARIOUS SUMS OF MONEY BELONGING TO
THAT ESTATE, AND MADE AUTHORIZED WITHDRAWALS, WITH THE RESULT THAT, OF
THE DEPOSITS SO MADE, THERE REMAINED IN THE BANK ON JUNE 22, 1931, A
BALANCE OF $3,190.72 TO THE CREDIT OF THE TRUSTEE.  ON THAT DAY THE
BANK BECAME INSOLVENT, CLOSED ITS DOORS, REFUSED TO PAY TO THE TRUSTEE
THE BALANCE SO OWING TO THE BANKRUPT ESTATE, AND THEREBY BROKE THE
CONDITION OF ITS BOND. 

IN MARCH, 1926, WHICH WAS AFTER THE BOND WAS GIVEN AND APPROVED AND
BEFORE WILHELM, TRUSTEE, MADE ANY DEPOSIT IN THE BANK, JAMES W. FLYNN,
ONE OF THE SURETIES ON THE BOND, DIED AND NELLIE FLYNN CHAIN BECAME
EXECUTRIX OF HIS ESTATE.  FLYNN DID NOT AT ANY TIME DURING HIS LIFE
SEEK TO REVOKE OR TERMINATE HIS SURETYSHIP; NOR DID HIS EXECUTRIX
SUBSEQUENTLY TAKE ANY STEP TO THAT END. 

THE ACTION ON THE BOND WAS IN THE NAME OF THE UNITED STATES FOR THE
USE OF WILHELM, TRUSTEE, AND WAS BROUGHT AGAINST THE BANK, THE
SURVIVING SURETY AND THE EXECUTRIX OF THE DECEASED SURETY. 

THE DISTRICT COURT GAVE JUDGMENT AGAINST THE DEFENDANTS FOR THE
BALANCE DUE WILHELM, TRUSTEE.  THE EXECUTRIX OF THE DECEASED SURETY
APPEALED, AND THE COURT OF APPEALS REVERSED THE JUDGMENT AS TO THE
ESTATE OF THAT SURETY.  84 F.(2D) 138.  CERTIORARI WAS GRANTED BY THIS
COURT. 

PERTINENT STATUTES AND A RELATED GENERAL BANKRUPTCY ORDER ARE COPIED
IN THE MARGIN.  FN1 

THE CRUCIAL QUESTION FOR DECISION, AS WAS SAID BY THE COURT OF
APPEALS, IS WHETHER THE OBLIGATION OF AN INDIVIDUAL SURETY ON SUCH A
DEPOSITORY BOND TERMINATES WITH HIS DEATH.  THAT COURT ANSWERED IN THE
AFFIRMATIVE, ONE JUDGE DISSENTING.  IT LIKENED SUCH A BOND TO A
CONTINUING GUARANTY WHEREBY THE GUARANTOR, WITHOUT PRESENT
CONSIDERATION, GUARANTEES A SERIES OF FUTURE PERFORMANCES, SUCH AS
PAYMENT OF THE PURCHASE PRICE OF GOODS TO BE SOLD, OR REPAYMENT OF
MONEY TO BE ADVANCED, FROM TIME TO TIME IN THE FUTURE; AND IT APPLIED
THE USUAL RULE THAT SUCH A GUARANTY IS MERELY AN OFFER AND DOES NOT
RIPEN INTO A CONTRACT IN RESPECT OF ANY SALE OR ADVANCE UNTIL THE SAME
IS MADE, AND THAT THE GUARANTY, IN SO FAR AS IT REMAINS MERELY AN
OFFER, MAY BE REVOKED BY THE GUARANTOR AND IS TERMINATED BY HIS DEATH. 
FN2 

THE COURT RIGHTLY RECOGNIZED THAT A CONTINUING GUARANTY, IF SUPPORTED
AT THE OUTSET BY A SUFFICIENT CONSIDERATION, IS A BINDING CONTRACT
WHICH IS NEITHER REVOCABLE BY THE GUARANTOR NOR TERMINABLE BY HIS
DEATH, ALTHOUGH THE ACTS GUARANTEED MAY COVER A LONG OR INDEFINITE
PERIOD OF TIME.  FN3  BUT IT PRONOUNCED THIS RULE INAPPLICABLE BECAUSE
IT REGARDED THE BOND AS MORE NEARLY ANALOGOUS TO A CONTINUING GUARANTY
WITHOUT PRESENT CONSIDERATION. 

WE ARE OF OPINION THAT THE BOND WAS NOT A MERE OFFER BUT WAS GIVEN
UPON A PRESENT AND SUFFICIENT CONSIDERATION, AND THEREFORE BECAME A
BINDING CONTRACT WHEN IT WAS DELIVERED TO AND APPROVED BY THE
BANKRUPTCY COURT.  THE INDUCEMENT, AS ALSO THE OCCASION, FOR THE BOND
WAS THE DESIGNATION OF THE BANK AS A DEPOSITORY.  THIS WAS A PRESENT,
ADEQUATE AND INDIVISIBLE CONSIDERATION.  FN4 WITHOUT THE BOND THE BANK
WOULD NOT HAVE BEEN ENTITLED TO THE ADVANTAGES OF THE DESIGNATION;
WHILE WITH THE BOND IT WAS ENTITLED TO THEM.  IN THIS REGARD THE BOND
WAS LIKE THAT OF A COLLECTOR OF CUSTOMS, COUNTY TREASURER, SHERIFF,
CLERK OF COURT, ADMINISTRATOR, GUARDIAN OR CASHIER, AS TO WHICH IT IS
WELL SETTLED THAT THE SELECTION OF THE OFFICER OR EMPLOYE WHOSE
FIDELITY IS ASSURED CONSTITUTES A PRESENT CONSIDERATION AMPLY
SUPPORTING THE UNDERTAKING OF THE OBLIGORS - SURETIES AS WELL AS
PRINCIPALS.  FN5 

"IT IS A PRESUMPTION OF LAW THAT THE PARTIES TO A CONTRACT BIND NOT
ONLY THEMSELVES BUT THEIR PERSONAL REPRESENTATIVES.  EXECUTORS,
THEREFORE, ARE HELD TO BE LIABLE ON ALL CONTRACTS OF THE TESTATOR WHICH
ARE BROKEN IN HIS LIFETIME, AND, WITH THE EXCEPTION OF CONTRACTS IN
WHICH PERSONAL SKILL OR TASTE IS REQUIRED, ON ALL CONTRACTS BROKEN
AFTER HIS DEATH."  FN6 

THE BOND IN SUIT IS A CONTRACT FOR THE CONDITIONAL PAYMENT OF MONEY,
NOT THE EXERCISE OF PERSONAL SKILL OR TASTE, AND THEREFORE IS ONE TO
WHICH THE PRESUMPTION APPLIES.  NO DOUBT IT IS ADMISSIBLE TO RESTRICT
THE PRESUMPTION BY A STIPULATION LIMITING A SURETY'S OBLIGATION TO
DEFAULTS OCCURRING WITHIN HIS LIFETIME, BUT THE PRESENT BOND DOES NOT
CONTAIN SUCH A STIPULATION, OR ANYTHING INDICATING THAT SUCH A
LIMITATION WAS INTENDED.  ON THE CONTRARY, ITS TERMS ARE IN FULL ACCORD
WITH THE PRESUMPTION, FOR IN IT THE OBLIGORS EXPRESSLY DECLARE THEIR
PURPOSE TO BIND NOT ONLY THEMSELVES, BUT ALSO THEIR EXECUTORS,
ADMINISTRATORS AND SUCCESSORS, JOINTLY AND SEVERALLY, FOR THE
PERFORMANCE OF THE OBLIGATION SET FORTH. 

IN A LONG LINE OF DECISIONS RELATING TO BONDS NOT DISTINGUISHABLE
FROM THE ONE IN SUIT IT HAS BEEN HELD THAT A SURETY'S OBLIGATION DOES
NOT TERMINATE WITH HIS DEATH BUT BINDS HIS PERSONAL REPRESENTATIVES FOR
PAST AND SUBSEQUENT DEFAULTS, AS IT WOULD BIND HIM IF LIVING.  FN7  THE
PRINCIPLE UNDERLYING THESE DECISIONS IS THE SAME THAT PREVAILS IN
RESPECT OF OTHER RELATED CONTRACTS, AND WE REGARD IT AS WELL SUSTAINED
IN REASON AND SUPPORTED BY THE PREPONDERANT WEIGHT OF AUTHORITY. 

CASES ARE BROUGHT TO OUR ATTENTION IN WHICH IT IS HELD THAT A SURETY
MAY TERMINATE HIS OBLIGATION AS RESPECTS FUTURE DEFAULTS BY GIVING
NOTICE TO THAT EFFECT TO THE OBLIGEE.  BUT THESE CASES ARE NOT
APPOSITE.  IN SOME THE INSTRUMENT SUED UPON WAS HELD TO BE ONLY A
CONTINUING OFFER WITHOUT A SUPPORTING CONSIDERATION AND THEREFORE
REVOCABLE AS TO FUTURE TRANSACTIONS.  OTHERS REST UPON A POWER SO TO
TERMINATE EXPRESSLY RESERVED IN THE BOND OR IN THE APPLICABLE STATUTE. 
HERE THE BOND IS A BINDING CONTRACT SUPPORTED BY AN ADEQUATE
CONSIDERATION, AND THERE IS NO RESERVATION OF A RIGHT TO TERMINATE IN
THE BOND OR IN THE STATUTE UNDER WHICH IT WAS GIVEN.  NOR HAS THERE
BEEN ANY EFFORT TO EFFECT SUCH A TERMINATION. 

WHETHER THE BANKRUPTCY COURT MAY, UPON APPROPRIATE APPLICATION AND
SHOWING, DISCHARGE A SURETY ON AN EXISTING BOND, AS RESPECTS POSSIBLE
FUTURE DEFAULTS, AND REQUIRE THE DEPOSITORY TO GIVE ANOTHER AND
SUBSTITUTED BOND, NEED NOT BE CONSIDERED, FOR NO SUCH APPLICATION OR
SHOWING APPEARS TO HAVE BEEN ATTEMPTED. 

WHILE THE BOND WAS UNDER SEAL WE NEED NOT CONSIDER THE EFFECT TO BE
GIVEN TO THIS UNDER THE LOCAL LAW, FOR IT AFFIRMATIVELY APPEARS THAT
THE BOND WAS GIVEN FOR A PRESENT AND ADEQUATE CONSIDERATION, WHICH
LEADS TO THE SAME RESULT AS IF THE SEAL WERE GIVEN THE EFFECT WHICH
WOULD BE ACCORDED TO IT AT COMMON LAW. 

IT RESULTS THAT THE JUDGMENT OF THE COURT OF APPEALS MUST BE REVERSED
AND THAT OF THE DISTRICT COURT AFFIRMED.  REVERSED. 

FN1  BANKRUPTCY ACT OF 1898. 

SEC. 47(A) TRUSTEES SHALL RESPECTIVELY  ...  (3) DEPOSIT ALL MONEY
RECEIVED BY THEM IN ONE OF THE DESIGNATED DEPOSITORIES; (4) DISBURSE
MONEY ONLY BY CHECK OR DRAFT ON SUCH DEPOSITORIES IN WHICH IT HAS BEEN
DEPOSITED;... 

SEC. 50(H) BONDS OF  ...  DESIGNATED DEPOSITORIES SHALL BE FILED OF
RECORD IN THE OFFICE OF THE CLERK OF THE COURT AND MAY BE SUED UPON IN
THE NAME OF THE UNITED STATES FOR THE USE OF ANY PERSON INJURED BY A
BREACH OF THEIR CONDITIONS. 

SEC. 61(A) COURTS OF BANKRUPTCY SHALL DESIGNATE, BY ORDER, BANKING
INSTITUTIONS AS DEPOSITORIES FOR THE MONEY OF BANKRUPT ESTATES, AS
CONVENIENT AS MAY BE TO THE RESIDENCES OF TRUSTEES, AND SHALL REQUIRE
BONDS TO THE UNITED STATES, SUBJECT TO THEIR APPROVAL, TO BE GIVEN BY
SUCH BANKING INSTITUTIONS, AND MAY FROM TIME TO TIME AS OCCASION MAY
REQUIRE, BY LIKE ORDER INCREASE THE NUMBER OF DEPOSITORIES OR THE
AMOUNT OF ANY BOND OR CHANGE SUCH DEPOSITORIES.  (C. 541, 30 STAT.
544.) 

GENERAL ORDER XXIX.  NO MONEYS DEPOSITED AS REQUIRED BY THE ACT SHALL
BE DRAWN FROM THE DEPOSITORY UNLESS BY CHECK OR WARRANT, SIGNED BY THE
CLERK OF THE COURT, OR BY A TRUSTEE, AND COUNTERSIGNED BY THE JUDGE OF
THE COURT, OR BY A REFEREE DESIGNATED FOR THAT PURPOSE, OR BY THE CLERK
OR HIS ASSISTANT UNDER AN ORDER MADE BY THE JUDGE  ...  (298 U.S.
697.) 

FN2  DAVIS SEWING MACHINE CO. V. RICHARDS, 115 U.S. 524, 527; JORDAN
V. DOBBINS, 122 MASS. 168; REST.  CONTRACTS, SECS. 35(E), (F), 44, 48. 

FN3  DAVIS V. WELLS, 104 U.S. 159, 165-167; ZIMETBAUM V. BERENSON,
267 MASS. 250, 254; 166 N.E. 719; NATIONAL EAGLE BANK V. HUNT, 16 R.I.
148, 151; 13 ATL. 115; KERNOCHAN V. MURRAY, 111 N.Y. 306, 308-309; 18
N.E. 868; BENNETT V. CHECOTAH STATE BANK, 176 OKLA. 518; 56 P.(2D) 848;
WILLISTON CONTRACTS, REV. ED. SEC. 1253; REST.  CONTRACTS, SEC. 46; 1
BRANDT SURETYSHIP AND GUARANTY, 2D ED., SEC. 133. 

FN4  LLOYD'S V. HARPER, L.R. 16 CH. DIV. 290, 314, 317, 319; IN RE
CRACE, L.R. 1902(1) CH. DIV. 733, 738; WILLISTON CONTRACTS, REV. ED.,
SEC. 1253. 

FN5  ESTATE OF RAPP V. PHOENIX INSURANCE CO., 113 ILL. 390, 395;
LLOYD'S V. HARPER, L.R. 16 CH. DIV. 290, 314, 317, 319; IN RE CRACE,
L.R. 1902(1) CH. DIV. 733, 738; WILLISTON CONTRACTS, REV. ED., SEC.
1253. 

FN6  1 CHITTY CONTRACTS, 11TH AM. ED., 138; 2 PARSONS CONTRACTS, 6TH
ED., 530-531. 

FN7  BROOME V. UNITED STATES, 15 HOW.  143; HECHT V. WEAVER, 34 FED.
111; UNITED STATES V. KEIVER, 56 FED. 422, 423; FEWLASS V. KEESHAN, 88
FED. 573, 574; POND V. UNITED STATES, 111 FED. 989, 997; IN RE CRACE,
L.R. 1902(1) CH. DIV. 733; CALVERT V. GORDON, 3 MAN.  & RY. 124; GREEN
V. YOUNG, 8 GREENL.  14; ROYAL INSURANCE CO. V. DAVIES, 40 IOWA 469;
MOORE V. WALLIS, 18 ALA. 458; KNOTTS V. BUTLER, 10 RICH.  EQ. 143;
HECHT V. SKAGG, 53 ARK. 291; 13 S.W. 930; SHACKAMAXON V. YARD, 150 PA.
351, 358; 124 ATL. 635; MUNDORFF V. WANGLER, 44 N.Y. SUP. CT. 495, 506;
VORIS V. STATE, 47 IND. 345; 349-350; EXCHANGE BANK V. BARNES, 7
ONTARIO 309, 320; SNYDER V. STATE, 5 WYO. 318, 323; 40 PAC. 441. 
..END :


















ELMHURST CEMETERY CO. V. COMM'R, 300 U.S. 37 


NO. 255.  ARGUED JANUARY 5, 6, 1937.  - DECIDED FEBRUARY 1, 1937.  - 83
F.(2D) 4, REVERSED - B.T.A. AFFIRMED. 


1.  WHERE THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING OF THE
BOARD OF TAX APPEALS UPON A QUESTION OF FACT, ITS DECISION OF SUCH
QUESTION IS CONCLUSIVE UPON REVIEW.  P. 40. 

2. HELD, THERE WAS SUBSTANTIAL EVIDENCE IN THIS CASE TO SUPPORT THE
FINDING OF THE BOARD IN RESPECT TO THE MARCH 1, 1913 VALUE OF CEMETERY
LOTS SUBSEQUENTLY DISPOSED OF, AND THE REVERSAL OF ITS DECISION OF THAT
QUESTION BY THE CIRCUIT COURT OF APPEALS AMOUNTED TO AN UNWARRANTED
SUBSTITUTION OF THE COURT'S JUDGMENT CONCERNING FACTS FOR THAT OF THE
BOARD.  P. 40. 

ELMHURST CEMETERY COMPANY OF JOLIET V. COMMISSIONER OF INTERNAL
REVENUE. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 

CERTIORARI, 299 U.S. 527, TO REVIEW A JUDGMENT REVERSING A DECISION
OF THE BOARD OF TAX APPEALS (UNREPORTED) WHICH SET ASIDE AN ORDER OF
THE COMMISSIONER DETERMINING A DEFICIENCY OF INCOME TAX. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

PETITIONER, IN 1909, PURCHASED ONE HUNDRED AND THIRTY-SEVEN ACRES OF
LAND NEAR JOLIET, ILLINOIS, FOR $60,000.00.  THIRTY-SEVEN ACRES WERE
DIVIDED INTO PLOTS AND DEVELOPED FOR CEMETERY PURPOSES BY GRADING,
CONSTRUCTING DRIVES, PLANTING SHRUBBERY, ETC., AT A COST OF
$35,000.00.  GRAVE PLOTS, VARYING IN AREA FROM 150 TO 1,500 SQUARE
FEET, WERE SOLD FROM TIME TO TIME UNDER CONTRACTS FOR PERPETUAL CARE. 

SOME 36,000 SQUARE FEET WERE DISPOSED OF DURING THE YEARS 1909 TO
1913 AT PRICES RANGING FROM 70.2 CENTS TO 79.5 CENTS.  THE AVERAGE
BETWEEN MARCH 1, 1912, AND MARCH 1, 1913, WAS 76.6 CENTS.  IN THE THREE
YEARS 1926, 1927, AND 1928, 42,000 SQUARE FEET WERE SOLD FOR $1.55 TO
$1.77.  TO DETERMINE THE TAXABLE GAINS REALIZED FROM THE LATTER SALES
IT BECAME NECESSARY TO ASCERTAIN THE VALUE OF THE LOTS AS OF MARCH 1,
1913.  THE PETITIONER'S RETURN ESTIMATED THIS AT 76.6 CENTS.  THE
COMMISSIONER ADOPTED 23.96 CENTS AND ASSESSED DEFICIENCIES
ACCORDINGLY. 

UPON PETITION FOR REDETERMINATION THE BOARD OF TAX APPEALS, AFTER
CONSIDERING THE EVIDENCE, APPROVED THE 76.6 CENT VALUATION AND FOUND NO
DEFICIENCIES.  THE EVIDENCE CONSISTED OF A STIPULATION BY COUNSEL
CONCERNING SALES IN 1909 TO 1913 AS DETAILED ABOVE, AND THE TESTIMONY
OF THE CEMETERY SUPERINTENDENT. 

HE STATED THE ORIGINAL COST OF THE ONE HUNDRED AND THIRTY-SEVEN
ACRES, EXPENSE OF DEVELOPMENT, AREA SOLD IN 1926, 1927, 1928, AND
PRICES OBTAINED.  HE AFFIRMED FAMILIARITY WITH THE PROPERTY ON MARCH 1,
1913, PRICES THEN PREVAILING, AND STATED THAT THE SALES OF 1912 AND
1913 WERE IN NORMAL COURSE WITHOUT EXTRA EFFORT.  ALSO THAT "THE
PURCHASE PRICE WAS ESTABLISHED BY MY VISITING A GOOD MANY CEMETERIES
THAT I FIGURED WERE PRACTICALLY OF THE SAME CLASS AS THAT CEMETERY AND
SITUATED NEAR CITIES OF ABOUT THE SAME POPULATION, AND I ESTABLISHED A
PRICE FROM THE PRICE THEY WERE SELLING AT."  FURTHER THAT "EVERY GRAVE
AND LOT IN THE CEMETERY SOLD SINCE ITS ORGANIZATION IS UNDER PERPETUAL
CARE, AND WHEN PERPETUAL CARE IS PROVIDED, IT MEANS KEEPING THE ROADS
AND DRIVES IN PROPER REPAIR, KEEPING THE DRAINAGE SYSTEM IN PROPER
REPAIR, KEEPING THE FENCES IN REPAIR, CUTTING THE GRASS, PRUNING THE
TREES, SHRUBS, AND KEEPING IT IN GOOD CONDITION."  "WE HOPE FOR A
GRADUAL INCREASE IN SALES EVERY YEAR BECAUSE, AS A GENERAL RULE, FOR
EVERY HEAD OF A FAMILY THAT IS BURIED YOU SECURE FOUR NEW FAMILIES. 
THAT IS THE RULE CEMETERY COMPANIES HAVE ADOPTED."  HE THOUGHT IT MIGHT
TAKE SEVENTY-FIVE YEARS TO DISPOSE OF ALL LOTS. 

THE BOARD DECLARED "THE PARTIES ARE NOW CONCERNED ONLY WITH THE VALUE
AS OF MARCH 1, 1913, OF THAT THIRTY-SEVEN ACRES OF PETITIONER'S LANDS
WHICH HAVE BEEN IMPROVED AND FROM WHICH SALES HAVE BEEN MADE."  "BEYOND
STATEMENTS OF COUNSEL TO THE EFFECT THAT RESPONDENT (COMMISSIONER) HAS
ATTEMPTED BY FORMULA TO REDUCE THE VALUE OF THE IMPROVED LAND AS OF
MARCH 1, 1913, TO PRESENT VALUE, WE ARE UNINFORMED AS TO THE METHOD BY
WHICH HE CHOSE THE FIGURES AT WHICH HE FIXES THE BASIS FOR DETERMINING
GAIN.  PETITIONER, HOWEVER, HAS CHOSEN AS THE FOOTAGE VALUATION AS OF
MARCH 1, 1913, THE SELLING PRICE OF ITS GRAVE LOTS DURING THE YEAR JUST
PRECEDING THAT DATE - 76.6 CENTS - WHICH IS LESS THAN THE AVERAGE SALES
PRICE DURING THE MONTH OF MARCH, 1913.  WE ARE OF OPINION THAT THE
VALUATION FOR WHICH PETITIONER CONTENDS IS REASONABLE AND SHOULD BE
ALLOWED.  IT IS BASED UPON ACTUAL SALES, AND CONSEQUENTLY COMES AS
CLOSELY AS MAY BE TO THAT FAIR MARKET VALUE, SO OFTEN JUDICIALLY
DEFINED AS THE PRICE WHICH PROPERTY WILL BRING WHEN OFFERED BY A
WILLING SELLER TO A WILLING BUYER, NEITHER BEING OBLIGATED TO BUY OR
SELL." 

LOTS DISPOSED OF IN 1912 AND 1913 WENT WITH AGREEMENTS FOR PERPETUAL
CARE; SO DID THOSE SOLD IN 1926, 1927, AND 1928; PRICES OBTAINED IN THE
LATTER YEARS MAY BE COMPARED WITH THOSE RECEIVED IN THE EARLIER ONES -
THEY WERE FOR LIKE THINGS. 

THE COMMISSIONER ASKED REVIEW BY THE CIRCUIT COURT OF APPEALS.  HE
THERE URGED THAT MARCH 1, 1913, VALUES SHOULD BE ASCERTAINED BY
DISCOUNTING SALE PRICES DURING THE PRECEDING TWELVE MONTHS BECAUSE OF
THE TIME WHICH WOULD BE REQUIRED IN ORDER TO DISPOSE OF THE WHOLE.  THE
COURT SAID: "THE FACTS IN THIS CASE NECESSITATE THE REJECTION OF THE
SELLING PRICE AS THE SOLE DETERMINATOR OF VALUE.  FAR MORE EQUITABLE IS
THE SELLING PRICE LESS DISCOUNT FOR YEARS REQUIRED TO REALIZE SAID
SELLING PRICE."  "THE COMMISSIONER WAS LIBERAL WITH THE TAXPAYER." 
ACCORDINGLY IT REVERSED THE BOARD AND DIRECTED AFFIRMANCE OF THE
COMMISSIONER'S ASSESSMENT. 

THIS ACTION, WE THINK, AMOUNTED TO AN UNWARRANTED SUBSTITUTION OF THE
COURT'S JUDGMENT CONCERNING FACTS FOR THAT OF THE BOARD.  THERE WAS
SUBSTANTIAL EVIDENCE, AS APPEARS ABOVE, TO SUPPORT THE LATTER'S
CONCLUSION, AND IN SUCH CIRCUMSTANCES THIS MUST BE ACCEPTED.  IT IS THE
FUNCTION OF THE BOARD TO WEIGH THE EVIDENCE AND DECLARE THE RESULT.  WE
UNDERTOOK TO STATE THE APPLICABLE RULE IN HELVERING V. RANKIN, 295 U.S.
123, 131, AND GENERAL UTILITIES & OPERATING CO. V. HELVERING, 296 U.S.
200, 206. 

THE JUDGMENT HERE COMPLAINED OF MUST BE REVERSED.  THE ACTION OF THE
BOARD OF TAX APPEALS IS AFFIRMED.  REVERSED. 
..END :



UNITED STATES V. GILES, 300 U.S. 41 


NO. 329.  ARGUED JANUARY 13, 1937.  - DECIDED FEBRUARY 1, 1937.  - 84
F.(2D) 943, REVERSED - D.C. AFFIRMED. 


1.  THE RULE THAT CRIMINAL STATUTES MUST BE STRICTLY CONSTRUED DOES
NOT REQUIRE THAT THE WORDS BE GIVEN THEIR NARROWEST MEANING OR THAT THE
EVIDENT INTENT BE DISREGARDED.  P. 48. 

2. A BANK TELLER WHO, FOR THE PURPOSE OF CONCEALING A SHORTAGE IN HIS
CASH, WITHHOLDS DEPOSIT SLIPS WHICH IN THE ORDINARY COURSE OF BUSINESS
WILL GO TO THE BOOKKEEPING DEPARTMENT FOR ENTRY, AS A RESULT WHEREOF
THE LEDGER UNDERSTATES THE AMOUNT OF THE BANK'S LIABILITY TO THE
DEPOSITORS, VIOLATES R.S., SEC. 5209, AS AMENDED, WHICH DENOUNCES AS A
MISDEMEANANT "ANY OFFICER, DIRECTOR, AGENT, OR EMPLOYEE OF ANY FEDERAL
RESERVE BANK, OR A MEMBER BANK  ...  WHO MAKES ANY FALSE ENTRY IN ANY
BOOK, REPORT, OR STATEMENT OF SUCH  ...  BANK, WITH INTENT IN ANY CASE
TO INJURE OR DEFRAUD ..."  PP. 48-49. 

TO HOLD THE STATUTE BROAD ENOUGH TO INCLUDE DELIBERATE ACTION FROM
WHICH A FALSE ENTRY BY AN INNOCENT INTERMEDIARY NECESSARILY FOLLOWS,
GIVES TO THE WORDS EMPLOYED THEIR FAIR MEANING AND IS IN ACCORD WITH
THE EVIDENT INTENT OF CONGRESS.  TO HOLD THAT IT APPLIES ONLY WHEN THE
ACCUSED PERSONALLY WRITES THE FALSE ENTRY OR AFFIRMATIVELY DIRECTS
ANOTHER TO DO SO WOULD EMASCULATE THE STATUTE - DEFEAT THE VERY END IN
VIEW. 

UNITED STATES V. GILES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 299 U.S. 531, TO REVIEW A JUDGMENT REVERSING A JUDGMENT
OF CONVICTION FOR VIOLATION OF R.S., SEC. 5209. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

40 STAT. 967, 972(U.S.C., TITLE 12, SEC. 592) PROVIDES: 

"ANY OFFICER, DIRECTOR, AGENT, OR EMPLOYEE OF ANY FEDERAL RESERVE
BANK, OR OF ANY MEMBER BANK ...  WHO MAKES ANY FALSE ENTRY IN ANY BOOK,
REPORT, OR STATEMENT OF SUCH FEDERAL RESERVE BANK OR MEMBER BANK, WITH
INTENT IN ANY CASE TO INJURE OR DEFRAUD SUCH FEDERAL RESERVE BANK OR
MEMBER BANK, OR ANY OTHER COMPANY, BODY POLITIC OR CORPORATE, OR ANY
INDIVIDUAL PERSON, OR TO DECEIVE ANY OFFICER OF SUCH FEDERAL RESERVE
BANK OR MEMBER BANK, OR THE COMPTROLLER OF THE CURRENCY, OR ANY AGENT
OR EXAMINER APPOINTED TO EXAMINE THE AFFAIRS OF SUCH FEDERAL RESERVE
BANK OR MEMBER BANKS, OR THE FEDERAL RESERVE BOARD  ...  SHALL BE
DEEMED GUILTY OF A MISDEMEANOR, AND UPON CONVICTION THEREOF IN ANY
DISTRICT COURT OF THE UNITED STATES SHALL BE FINED NOT MORE THAN $5,000
OR SHALL BE IMPRISONED FOR NOT MORE THAN FIVE YEARS, OR BOTH, IN THE
DISCRETION OF THE COURT." 

COUNT THREE OF AN INDICTMENT IN THE UNITED STATES DISTRICT COURT,
WESTERN DISTRICT OF TEXAS, CHARGED THAT RESPONDENT GILES, WHILE
EMPLOYED AS TELLER BY THE COMMERCIAL NATIONAL BANK OF SAN ANTONIO,
TEXAS, A MEMBER OF THE FEDERAL RESERVE NATIONAL BANK OF DALLAS, DID
"UNLAWFULLY, KNOWINGLY, WILFULLY, FRAUDULENTLY, AND FELONIOUSLY MAKE
AND CAUSE TO BE MADE IN A BOOK OF THE SAID THE COMMERCIAL NATIONAL BANK
OF SAN ANTONIO, TEXAS, KNOWN AS THE INDIVIDUAL LEDGER, IN THE ACCOUNT
DESIGNATED 'S.A. PUBLIC SERVICE COMPANY,' UNDER DATE OF 'JUL 25 '33' IN
THE COLUMN BEARING THE PRINTED HEADING 'BALANCE,' BEING THE FIFTH ENTRY
FROM THE TOP OF THE COLUMN AFORESAID, AND DIRECTLY OPPOSITE THE MACHINE
PRINTED DATE THEREON 'JULY 25 33,' A CERTAIN FALSE ENTRY IN THE
FOLLOWING FIGURES, TO WIT, '7,874.07,' WHICH SAID ENTRY SO MADE AS
AFORESAID, PURPORTS TO SHOW AND DOES IN SUBSTANCE AND EFFECT INDICATE
AND DECLARE THAT THE COMMERCIAL NATIONAL BANK OF SAN ANTONIO, TEXAS,
WAS INDEBTED AND LIABLE TO THE SAN ANTONIO PUBLIC SERVICE COMPANY IN
THE AMOUNT OF SEVEN THOUSAND EIGHT HUNDRED SEVENTY-FOUR DOLLARS AND
SEVEN CENTS ($7,874.07) ON JULY 25, 1933, WHEREAS IN TRUTH AND IN FACT
SAID INDEBTEDNESS AND LIABILITY ON SAID DATE WAS A DIFFERENT AND MUCH
LARGER AMOUNT." 

COUNT FOUR MADE A LIKE CHARGE RELATIVE TO THE ACCOUNT OF THE NATIONAL
LIFE AND ACCIDENT INSURANCE COMPANY. 

HE WAS TRIED, FOUND GUILTY, AND SENTENCED UNDER BOTH COUNTS.  THE
POINT FOR OUR DECISION IS WHETHER THE TRIAL COURT ERRED IN REFUSING TO
DIRECT A VERDICT OF NOT GUILTY.  THE ESSENTIAL FACTS ARE NOT IN
DISPUTE. 

FROM THE EVIDENCE IT APPEARS - 

GILES, ONCE BOOKKEEPER FOR THE COMMERCIAL NATIONAL BANK, BECAME FIRST
PAYING AND RECEIVING TELLER WITH CUSTODY EACH DAY OF SOME $35,000.00
CASH.  HIS DUTY WAS TO RECEIVE DEPOSITS AND PLACE ACCOMPANYING SLIPS OR
TICKETS WHERE THEY WOULD REACH THE BOOKKEEPERS FOR ENTRY.  EIGHTEEN
MONTHS PRIOR TO THE ALLEGED OFFENSE, HE DISCOVERED SHORTAGE IN HIS CASH
BUT MADE NO REPORT TO HIS SUPERIORS.  TO COVER UP THE SHORTAGE HE
RESORTED TO THE PRACTICE OF WITHHOLDING SELECTED DEPOSIT SLIPS FOR
THREE OR FOUR DAYS BEFORE PERMITTING THEM TO REACH THE BOOKKEEPING
DEPARTMENT.  THIS CAUSED THE LEDGER TO SHOW FALSE BALANCES.  OTHER
SHORTAGES OCCURRED; JULY 25, 1933, THE TOTAL STOOD AT $2,650.00. 

ON THAT DAY HE ACCEPTED DEPOSITS WITH PROPER TICKETS FROM SAN ANTONIO
PUBLIC SERVICE COMPANY AND NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY
FOR $1,985.79 AND $663.27 RESPECTIVELY, ACCOMPANIED BY CASH AND
CHECKS.  TOGETHER THESE APPROXIMATED HIS SHORTAGE.  HE WITHHELD BOTH
TICKETS FROM THE PLACE WHERE THEY SHOULD HAVE GONE AND SECRETED THEM. 
IF PLACED AS USUAL AND AS HIS DUTY REQUIRED, THEY WOULD HAVE REACHED
THE BOOKKEEPER DURING THE DAY.  ENTRIES ON THE LEDGER WOULD HAVE SHOWN
THE DEPOSITORS' TRUE BALANCES. 

THE BANK CLOSED JULY 29TH.  THE SLIPS NEVER REACHED THE BOOKKEEPER. 
THE INDIVIDUAL LEDGER ACCOUNTS AT THE END OF THE 25TH AND THEREAFTER
UNDERSTATED THE LIABILITY OF THE BANK TO THE DEPOSITORS. 

THE RESPONDENT ACKNOWLEDGED HIS PURPOSE IN WITHHOLDING THE DEPOSIT
TICKETS WAS TO PREVENT OFFICERS AND EXAMINERS FROM DISCOVERING HIS
SHORTAGE.  SOME EXCERPTS FROM HIS TESTIMONY ARE IN THE MARGIN.  FN2 

AT THE CONCLUSION OF THE EVIDENCE COUNSEL MOVED FOR A DIRECTED
VERDICT OF NOT GUILTY.  THIS WAS DENIED.  THE JURY FOUND GUILT UNDER
BOTH COUNTS; AN APPEAL, WITH MANY ASSIGNMENTS OF ERROR, WENT TO THE
CIRCUIT COURT OF APPEALS. 

THAT COURT DECLARED:  "THE SERIOUS QUESTION PRESENTED FOR DECISION IS
WHETHER THE LAW WILL SUPPORT A CONVICTION ON AN INDICTMENT CHARGING
THAT DEFENDANT CAUSED THE FALSE ENTRIES TO BE MADE." 

"OF COURSE, IN A SENSE, ONE WHO MAKES A FALSE ENTRY CAUSES IT TO BE
MADE.  IF HE MAKES AN ENTRY HIMSELF OR DIRECTS ANOTHER TO MAKE IT, AN
ALLEGATION IN THE INDICTMENT THAT HE CAUSED IT TO BE MADE MAY BE
TREATED AS SURPLUSAGE AND HARMLESS, BUT WHERE THE DEFENDANT HAS NEITHER
MADE A FALSE ENTRY NOR DIRECTED ANOTHER TO DO SO, THE SAME ALLEGATION
IS MATERIAL AND INJURIOUS.  A CHARGE THAT ONE HAS CAUSED A FALSE ENTRY
TO BE MADE IS VERY MUCH BROADER THAN THE CHARGE THAT HE MADE IT."  "WE
CONSIDER THE ALLEGATION OF THE INDICTMENT THAT DEFENDANT DID 'CAUSE TO
BE MADE A CERTAIN FALSE ENTRY IN A BOOK OF THE BANK,' CHARGED A DEGREE
AND CLASSIFICATION OF THE OFFENSE NOT WITHIN THE LETTER OR INTENT OF
THE LAW."  "THE EVIDENCE IN THE RECORD CONCLUSIVELY SHOWS THAT
DEFENDANT NEITHER MADE THE FALSE ENTRIES NOR DID ANYTHING THAT COULD BE
CONSIDERED AS A DIRECTION TO THE BOOKKEEPER TO MAKE THEM.  WITHOUT THE
CHARGE THAT HE CAUSED THE ENTRIES TO BE MADE HE COULD NOT HAVE BEEN
CONVICTED.  IT FOLLOWS THAT IT WAS PREJUDICIAL ERROR TO OVERRULE THE
MOTION FOR A DIRECTED VERDICT OF ACQUITTAL." 

DISSENTING, ONE JUDGE SAID: 

"THIS STATUTE PLAINLY INTENDS TO PUNISH THE FALSIFICATION OF BANK
RECORDS WITH INTENT TO DECEIVE OR DEFRAUD.  IF FALSE ENTRIES ARE
DELIBERATELY PRODUCED, ALTHOUGH THROUGH AN IGNORANTLY INNOCENT AGENT,
THE BANK EMPLOYEE WHO CONCOCTS THE PLAN AND ACHIEVES THE RESULT IS, IN
MY OPINION, GUILTY.  THIS INNOCENT BOOKKEEPER WAS THE TELLER'S REAL
THOUGH UNCONSCIOUS AGENT IN MAKING THE ENTRIES; AS TRULY SO AS IF THE
FALSE ENTRIES HAD BEEN REQUESTED IN WORDS."  "...  THE PRESENT CASE IS
NOT ONE OF A MERE FAILURE TO PREVENT A CONSEQUENCE, BUT IS ONE OF
CONTRIVING THAT CONSEQUENCE AND SO FATHERING IT AS TO MAKE IT WHOLLY
THE CONTRIVER'S OWN.  THE BOOKKEEPER IN MAKING THESE FALSE ENTRIES WAS
DOING THE WILL OF THE TELLER, THOUGH HE DID NOT KNOW IT.  THE FALSE
ENTRIES ARE IN LAW THE ACTS OF THE TELLER WHO PLANNED THEM AND DID ALL
HE NEEDED TO DO TO PRODUCE THEM." 

COUNSEL FOR THE RESPONDENT NOW AFFIRM:  "THERE IS NO DISPUTE AS TO
THE FACTS."  "THE ACT COMMITTED BY THE DEFENDANT WAS THE WITHHOLDING BY
HIM AND THE FAILURE BY HIM TO TURN OVER TO THE BOOKKEEPING DEPARTMENT
IN THE USUAL COURSE OF THE BANK'S BUSINESS A DEPOSIT SLIP."  HE DID NOT
CAUSE ANY FALSE ENTRY TO BE MADE.  PERSONALLY HE MADE NO SUCH ENTRY; HE
DID NOT AFFIRMATIVELY DIRECT ONE.  BY WITHHOLDING THE TICKET HE
PREVENTED AN ENTRY; HE CAUSED NONE. 

THE RULE, OFTEN ANNOUNCED, THAT CRIMINAL STATUTES MUST BE STRICTLY
CONSTRUED DOES NOT REQUIRE THAT THE WORDS OF AN ENACTMENT BE GIVEN
THEIR NARROWEST MEANING OR THAT THE LAWMAKER'S EVIDENT INTENT BE
DISREGARDED.  UNITED STATES V. CORBETT, 215 U.S. 233, 242.  HERE THE
PURPOSE TO INSURE THE CORRECTNESS OF BANK RECORDS BY PRESCRIBING
PUNISHMENT FOR ANY EMPLOYEE WHO, WITH INTENT TO DECEIVE, ETC.,
DELIBERATELY BRINGS ABOUT THEIR FALSIFICATION IS PLAIN ENOUGH.  THE
STATUTE DENOUNCES AS CRIMINAL ONE WHO WITH INTENT, ETC., "MAKES ANY
FALSE ENTRY."  THE WORD "MAKE" HAS MANY MEANINGS, AMONG THEM "TO CAUSE
TO EXIST, APPEAR OR OCCUR," WEBSTER'S INTERNATIONAL DICTIONARY, 2ND ED.
TO HOLD THE STATUTE BROAD ENOUGH TO INCLUDE DELIBERATE ACTION FROM
WHICH A FALSE ENTRY BY AN INNOCENT INTERMEDIARY NECESSARILY FOLLOWS,
GIVES TO THE WORDS EMPLOYED THEIR FAIR MEANING AND IS IN ACCORD WITH
THE EVIDENT INTENT OF CONGRESS.  TO HOLD THAT IT APPLIES ONLY WHEN THE
ACCUSED PERSONALLY WRITES THE FALSE ENTRY OR AFFIRMATIVELY DIRECTS
ANOTHER SO TO DO WOULD EMASCULATE THE STATUTE - DEFEAT THE VERY END IN
VIEW. 

MORSE V. UNITED STATES, 174 FED. 539, 547, 553 - CIRCUIT COURT OF
APPEALS, SECOND CIRCUIT - GAVE MUCH CONSIDERATION TO AN INDICTMENT AND
CONVICTION UNDER R.S., SEC. 5209.  THE COURT SAID:  "IT IS TRUE THAT
THE DEFENDANT DID NOT MAKE ANY OF THE ENTRIES IN THE BOOKS OR REPORTS
WITH HIS OWN PEN.  ALL OF THEM WERE MADE BY THE EMPLOYEES OF THE BANK
AS PART OF THEIR ROUTINE WORK.  IF IT WERE NECESSARY TO PROVE AGAINST A
DIRECTOR THAT HE ACTUALLY MADE THE ENTRY CHARGED TO BE FALSE,
CONVICTION UNDER THE STATUTE WOULD BE IMPOSSIBLE, AS THESE ENTRIES ARE
INVARIABLY MADE BY SUBORDINATES IN THE EXECUTIVE DEPARTMENT.  CONGRESS
WAS NOT SEEKING TO PUNISH THE IGNORANT BOOKKEEPER WHO COPIES ITEMS INTO
THE BOOKS AS PART OF HIS DAILY TASK, BUT THE OFFICERS WHO CONCEIVED AND
CARRIED OUT THE FRAUDULENT SCHEME WHICH THE FALSE ENTRY WAS DESIGNED TO
CONCEAL.  IT IS WHOLLY IMMATERIAL WHETHER SUCH OFFICER ACTS THROUGH A
PEN OR A CLERK CONTROLLED BY HIM."  "IT SEEMS TO US THAT DEFENDANT IS
AS FULLY RESPONSIBLE FOR ANY FALSE ENTRIES WHICH NECESSARILY RESULT
FROM THE PRESENTATION OF THESE PIECES OF PAPER WHICH HE CAUSED TO BE
PREPARED AS HE WOULD IF HE HAD GIVEN ORAL INSTRUCTIONS IN REFERENCE TO
THEM OR HAD WRITTEN THEM HIMSELF." 

WE AGREE WITH THE VIEW SO EXPRESSED IN THAT OPINION.  UNITED STATES
V. MCCLARTY, 191 FED. 518 AND 523, APPARENTLY IS IN CONFLICT WITH OUR
CONCLUSION. 

THE RECORD LEAVES US IN NO DOUBT THAT THE FALSE ENTRIES ON THE LEDGER
WERE THE INTENDED AND NECESSARY RESULT OF RESPONDENT'S DELIBERATE
ACTION IN WITHHOLDING THE DEPOSIT TICKETS.  WITHIN THE STATUTE HE MADE
THEM. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED.  THE
DISTRICT COURT WILL BE AFFIRMED.  REVERSED. 

FN1  SEC. 5209 R.S., TITLE LXII, NATIONAL BANKS, CH. 3.  "EVERY
PRESIDENT, DIRECTOR, CASHIER, TELLER, CLERK, OR AGENT OF ANY
ASSOCIATION, WHO EMBEZZLES, ABSTRACTS, OR WILLFULLY MISAPPLIES ANY OF
THE MONEYS, FUNDS, OR CREDITS OF THE ASSOCIATION; OR WHO, WITHOUT
AUTHORITY FROM THE DIRECTORS, ISSUES OR PUTS IN CIRCULATION ANY OF THE
NOTES OF THE ASSOCIATION; OR WHO, WITHOUT SUCH AUTHORITY, ISSUES OR
PUTS FORTH ANY CERTIFICATE OF DEPOSIT, DRAWS ANY ORDER OR BILL OF
EXCHANGE, MAKES ANY ACCEPTANCE, ASSIGNS ANY NOTE, BOND, DRAFT, BILL OF
EXCHANGE, MORTGAGE, JUDGMENT, OR DECREE; OR WHO MAKES ANY FALSE ENTRY
IN ANY BOOK, REPORT, OR STATEMENT OF THE ASSOCIATION, WITH INTENT, IN
EITHER CASE, TO INJURE OR DEFRAUD THE ASSOCIATION OR ANY OTHER COMPANY,
BODY POLITIC OR CORPORATE, OR ANY INDIVIDUAL PERSON, OR TO DECEIVE ANY
OFFICER OF THE ASSOCIATION, OR ANY AGENT APPOINTED TO EXAMINE THE
AFFAIRS OF ANY SUCH ASSOCIATION; AND EVERY PERSON WHO WITH LIKE INTENT
AIDS OR ABETS ANY OFFICER, CLERK, OR AGENT IN ANY VIOLATION OF THIS
IMPRISONED NOT LESS THAN FIVE YEARS NOR MORE THAN TEN." 

FN2  "MY ACTUAL SHORTAGE WAS $2,650.00 THAT HAD SHOWN UP WITHOUT MY
HAVING ANY RESPONSIBILITY FOR IT.  THE ONLY WAY IT COULD BE CARRIED WAS
HOLDING OUT DEPOSIT TICKETS TO OFFSET THE SHORTAGE IN THE CASH, AND ON
THE 25TH OF JULY WITHHOLDING THESE TWO DEPOSITS, THE SAN ANTONIO PUBLIC
SERVICE AND THE NATIONAL LIFE & ACCIDENT, AND DEPOSITING THE TWO
TICKETS THAT HAD BEEN HELD OVER FROM THE 21ST. 

"ASKED IF I SELECTED THOSE TWO DEPOSIT SLIPS THAT DAY TO WITHHOLD
THEM BECAUSE THEY, TOGETHER, MADE UP THE AMOUNT OF THE SHORTAGE, THAT
WAS THE REASON I SELECTED THOSE TWO, BECAUSE IT COVERED THE AMOUNT OF
THE SHORTAGE. 

"THE BANK GOT THE MONEY FOR BOTH OF THOSE DEPOSITS.  I DID NOT MAKE
ANY FALSE ENTRIES WITH REFERENCE TO THOSE ITEMS.  IT IS TRUE THAT ALL I
DID WAS SIMPLY PUT THE DEPOSIT SLIPS IN THE CIGAR BOX AND WITHHELD THEM
FOR THE TIME BEING, UNTIL I COULD RECOVER THE SHORTAGE.  I DID NOT MAKE
ANY REPORT TO ANY BOOKKEEPER.  AS TO HOW THE BOOKKEEPING DEPARTMENT
RECEIVED ITS INFORMATION ON WHICH THEY KEEP THEIR BOOKS, THE
BOOKKEEPERS CAME IN THREE OR FOUR TIMES A DAY AND LOTS OF DAYS OFTENER,
AND TOOK THE DEPOSIT TICKETS AND CHECKS OUT OF THE DRAWERS.  THE
BUSINESS OF THE DAY WAS REPRESENTED BY THE TICKETS AND CHECKS.  I WOULD
PUT THOSE IN THE DRAWERS; I HAD A SPECIAL DRAWER FOR THEM, DIVIDED INTO
THE DRAWERS WHENEVER THEY WANTED TO AND GET THEM - THEY CAME AND GOT
THEM WHETHER I WAS THERE OR NOT.  I HAD NO CONTROL OR DIRECTION
WHATEVER OVER THE BOOKKEEPING DEPARTMENT OR ANY BOOKKEEPER.  MR.
CROWTHER HAD CONTROL AND DIRECTION OVER THE BOOKKEEPERS; REALLY, MR.
ROBERTS HANDLED THEM, BUT MR. CROWTHER WAS OVER THE BOOKKEEPERS.  IF
THE ENTRIES WERE MADE ON ANY GIVEN DATE SHOWING THE BALANCE OF ANY
DEPOSITORS, ETC., I DID NOT HAVE ANYTHING WHATEVER TO DO WITH MAKING
THE ENTRIES OR CAUSING THEM TO BE MADE.  THEY SIMPLY CAME TO THE
DRAWERS AND GOT THE CHECKS AND DEPOSIT SLIPS, AND FROM THAT MADE UP
THEIR ENTRIES.  THESE TWO DEPOSIT SLIPS THAT WERE WITHHELD AND STUCK IN
THE CIGAR BOX THAT DAY WOULD HAVE GONE RIGHT ON INTO THE BOOKS IN TIME
IF THE BANK HAD NOT CLOSED.... THEY WERE SIMPLY WITHHELD THAT WAY TO
MAKE MY CASH BALANCE; THAT WAS THE ONLY WAY I HAD OF DOING THAT....  I
WITHHELD DEPOSIT TICKETS FROM TIME TO TIME IN ORDER THAT MY CASH
SHORTAGE WOULD NOT BE DISCOVERED.    "WITH REGARD TO THE TWO DEPOSITS
THAT ARE DIRECTLY IN QUESTION IN THIS CASE, ONE TO THE NATIONAL LIFE &
ACCIDENT COMPANY AND ONE TO THE SAN ANTONIO PUBLIC SERVICE COMPANY,
EACH ON THE 25TH OF JULY, 1933, I WITHHELD THOSE TWO DEPOSIT TICKETS
FROM THE BOOKKEEPERS.  ASKED IF INSTEAD OF PUTTING THEM IN THE DRAWER
WITH THE BALANCE OF THE DEPOSIT TICKETS FOR THAT DAY, I PUT THEM IN A
DIFFERENT PLACE WHERE I KNEW THE BOOKKEEPERS WOULD NOT LOOK FOR THEM,
YES, SIR, I PUT THEM IN THE CIGAR BOX.  THE BOOKKEEPERS HAD NOTHING TO
DO WITH THE CIGAR BOX.  THE BOOKKEEPERS WOULD GO TO THE REGULAR PLACE
WHERE THE DEPOSIT SLIPS WERE KEPT TO GET THEM.  THE REASON I PUT THE
TWO DEPOSIT TICKETS IN THE CIGAR BOX WAS FOR THE SOLE AND ONLY PURPOSE
OF KEEPING THEM FROM THE BOOKKEEPERS TO KEEP THEM FROM GOING THROUGH,
TO KEEP THEM FROM GOING ON THE ACCOUNT OF THE DEPOSITORS. 

"ASKED IF BY PUTTING DEPOSIT SLIPS IN A PLACE WHERE HE WOULD NOT GET
THEM AND I KNEW HE WOULD NOT GET THEM, I HAD THAT MUCH CONTROL OVER THE
BOOKKEEPERS, YES, SIR, BY HOLDING THEM OUT, OF COURSE, HE WOULD NOT GET
THEM. 

"Q.  NOW I SHOW YOU ONE OF THE GOVERNMENT'S EXHIBITS, WHICH IS THE
INDIVIDUAL LEDGER ACCOUNT OF THE SAN ANTONIO PUBLIC SERVICE COMPANY IN
THE RIGHT HAND COLUMN, THE 5TH LINE FROM THE TOP OF THE PAGE, AN ENTRY
UNDER DATE OF JULY 25TH, 1933, UNDER THE COLUMN HEAD 'NEW BALANCE'
WHICH IS THE LAST BALANCE OF THAT ACCOUNT SHOWN FOR JULY 25TH, 1933, OF
$7,874.07; WAS THAT THE TRUE BALANCE OF THAT ACCOUNT ON THAT DATE?  A.
THAT WAS THE TRUE BALANCE OF EVERYTHING THAT WENT THROUGH TO THE
ACCOUNT.  Q. THAT IS RIGHT, BUT WAS THAT A TRUE BALANCE ON THE ACCOUNT;
DO THE FIGURES, 7,874.07, REPRESENT THE LIABILITY OF THE COMMERCIAL
NATIONAL BANK TO THE SAN ANTONIO PUBLIC SERVICE COMPANY AT THE CLOSE OF
BUSINESS ON JULY 25TH, 1933?  A. NO, SIR; THE DEPOSIT SLIP WAS IN MY
CAGE OF $1,985.79. 

"Q.  AND THEN THIS ENTRY OF $7,874.07 IS NOT CORRECT, BECAUSE YOU DID
NOT LET THE BOOKKEEPERS HAVE THE DEPOSIT TICKET?  A. WE OFTEN HELD
DEPOSIT TICKETS OVER.  Q. BUT YOU WITHHELD IT FOR A PURPOSE, DIDN'T
YOU?  A. YES, SIR.  Q. YOUR INTENTION IN WITHHOLDING IT WAS SO THAT IT
WOULD NOT GO ON THE LEDGER SHEET, WASN'T IT?  A. YES, SIR; I PUT IT IN
THE CIGAR BOX. 

"I DID NOT MAKE ANY ENTRIES OR FIGURES OF ANY SORT FROM WHICH THE
BOOKKEEPERS MIGHT HAVE GOT IT OFF THE ENTRIES.  THE ONLY ENTRY I EVER
MADE WAS IN THE DEPOSITOR'S PASS BOOK.  I THEREFORE MADE NO OTHER
ENTRIES." 
..END :







KELLY V. UNITED STATES, 300 U.S. 50 


NO. 309.  SUBMITTED JANUARY 8, 1937.  - DECIDED FEBRUARY 1, 1937.  - 83
F.(2D) 783, 84 F.(2D) 541, REVERSED. 


1.  WHERE, UPON AN APPEAL TO THE CIRCUIT COURT OF APPEALS FROM A
JUDGMENT OF THE DISTRICT COURT, THE RECORD CONTAINS NO PROPERLY
AUTHENTICATED STATEMENT OF THE EVIDENCE OR AGREED STATEMENT OF THE CASE
AS REQUIRED BY EQUITY RULES 75(B) AND 77, AND THE JUDGMENT IS AFFIRMED
ON THAT GROUND, ALTHOUGH THE CAUSE WAS HEARD WITHOUT OBJECTION TO THE
RECORD, DENIAL BY THE CIRCUIT COURT OF APPEALS, UPON A PETITION FOR
REHEARING, OF AN OPPORTUNITY TO SECURE PROPER AUTHENTICATION OF THE
RECORD IS AN ABUSE OF DISCRETION.  P. 54. 

2.  WHILE ORDERLY PROCEDURE DEMANDS THAT THE EQUITY RULES BE ENFORCED
WITH THE STRICTNESS NECESSARY TO EFFECTUATE THEIR ESSENTIAL PURPOSE,
YET WHEN, AS HERE, THERE IS MERE OMISSION OF SOME STEP WHICH HAS
ESCAPED THE ATTENTION OF BOTH PARTIES, AND WHEN RIGOROUS ENFORCEMENT
WITHOUT FAIR OPPORTUNITY TO CORRECT THE ERROR WOULD DEFEAT HEARING ON
THE MERITS AND ENTAIL UNNECESSARY HARDSHIP, APPROPRIATE RELIEF PROMPTLY
ASKED FOR SHOULD BE AFFORDED.  P. 54. 

3.  IN THIS CASE, PERMISSION TO SUPPLY AUTHENTICATION OF THE RECORD
WOULD HAVE OCCASIONED NO MATERIAL INJURY TO ANY PARTY, NOR INTERFERED
SERIOUSLY WITH THE BUSINESS OF THE COURT.  P. 55. 

KELLY, TRUSTEE IN BANKRUPTCY, V. UNITED STATES ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. 

CERTIORARI, 299 U.S. 528, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT,
12 F.SUPP.  11, WHICH DISAFFIRMED AN ORDER OF THE REFEREE IN BANKRUPTCY
AND ALLOWED A CLAIM OF THE UNITED STATES FOR INCOME TAXES AGAINST THE
ESTATE OF A BANKRUPT.  THE TAX LIABILITY HAD PREVIOUSLY BEEN SUSTAINED
BY THE BOARD OF TAX APPEALS, 29 B.T.A. 514. 

MR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT. 

IN A PROCEEDING BEGUN JANUARY 9, 1934, THE DISTRICT COURT, WESTERN
DISTRICT OF WASHINGTON, ADJUDGED THE CARLISLE PACKING COMPANY BANKRUPT,
FEBRUARY 9, 1934.  THE UNITED STATES PRESENTED THEIR CLAIM FOR INCOME
TAXES FOR 1927, 1928, AND 1929, AND THE TRUSTEE FILED OBJECTIONS, JUNE
18, 1934.  HE ASSERTED THAT THE COMPANY RECEIVED NO TAXABLE INCOME
DURING 1927 BUT SUFFERED LOSS SUFFICIENT TO OFFSET ANY GAINS FOR 1928
AND 1929.  THE REFEREE RECEIVED COPY OF THE DULY AUTHENTICATED JUDGMENT
BY THE BOARD OF TAX APPEALS, WHICH SUSTAINED THE TAX IN QUESTION, TOOK
OTHER EVIDENCE, AND UPON THE WHOLE RECORD CONCLUDED THAT THE COMPANY
LOST AS AVERRED DURING 1927.  HE DISALLOWED THE CLAIM AND EXPLAINED
THIS ACTION BY AN OPINION. 

EXCEPTIONS CHALLENGED THE REFEREE'S REFUSAL TO TREAT THE DECISION OF
THE TAX BOARD AS CONCLUSIVE AND HOLD THE BANKRUPTCY COURT LACKED POWER
TO CONSIDER THE MERITS OF THE ASSESSMENTS.  A PETITION FOR REVIEW BY
THE DISTRICT COURT ALLEGED FINALITY OF THE BOARD'S JUDGMENT, LACK OF
POWER IN THE BANKRUPTCY COURT, AND ASKED DISALLOWANCE OF THE CLAIM. 

FROM AN ABSTRACT OF THE PROCEEDINGS RETURNED BY THE REFEREE IT
APPEARS - 

THAT THE UNITED STATES HAD UNSUCCESSFULLY OBJECTED TO THE
INTRODUCTION OF ANY TESTIMONY CONCERNING THE MERITS OF THE QUESTIONED
TAX UPON THE GROUND THAT THE BOARD'S JUDGMENT IN RESPECT OF THE SAME
MATTER HAD BECOME FINAL AND CONCLUSIVE. 

THAT THE BANKRUPT HAD BORROWED LARGE SUMS FROM THE BANK OF
CALIFORNIA, AND IN 1927 WHEN UNABLE OTHERWISE TO MEET ITS OBLIGATIONS
HAD TRANSFERRED TO THE BANK MUCH PROPERTY AND RECEIVED THEREFOR ITS OWN
CANCELLED NOTES FOR $650,000.00.  THE COMPANY CLAIMED NO PROFIT AROSE
FROM THIS TRANSACTION AND THAT IT SUSTAINED LARGE LOSS DURING 1927. 
THE COLLECTOR RULED TO THE CONTRARY AND ASSESSED DELINQUENCIES FOR
THREE YEARS.  THE BOARD OF TAX APPEALS SUSTAINED HIM, APPROVED THE
ASSESSMENTS, AND ADJUDGED ACCORDINGLY, JANUARY 4, 1934.  ON JANUARY 12,
1934, HE MADE SUMMARY ASSESSMENTS.  THE TIME FOR CONTESTING THE BOARD'S
JUDGMENT HAD NOT EXPIRED WHEN PETITIONER WAS ADJUDGED BANKRUPT. 

UPON MOTION OF THE UNITED STATES THE DISTRICT COURT DIRECTED THAT THE
BANKRUPT'S TAX RETURNS BE MADE PARTS OF THE RECORD.  IT THEN HEARD THE
CAUSE, CONSIDERED WHETHER THE DECISION OF THE BOARD WAS CONCLUSIVE, AND
HELD:  "TO REACH THE CONCLUSION THAT A DEFICIENCY DETERMINED BY THE
BOARD OF TAX APPEALS MAY BE RE-EXAMINED AND RE-DECIDED BY THE JUDGE OF
A DISTRICT COURT OR A REFEREE IN BANKRUPTCY IS, ON ITS FACE,
INCONSISTENT WITH THE INTENT AND PURPOSE ON THE PART OF CONGRESS SHOWN
THAT A REVIEW OF THE BOARD'S DECISION SHOULD BE BY SUCH AN APPELLATE
COURT."  ACCORDINGLY IT RENDERED AN OPINION, DISAFFIRMED THE REFEREE'S
ACTION, AND ALLOWED THE CLAIM. 

THEREUPON THE TRUSTEE APPEALED TO THE CIRCUIT COURT OF APPEALS. 
AMONG OTHER THINGS HE ASSIGNED AS ERROR THE RULING THAT THE BANKRUPTCY
COURT LACKED POWER TO DETERMINE ANEW QUESTIONS WHICH THE BOARD OF TAX
APPEALS HAD ADJUDICATED.  PORTIONS OF THE RECORD IN THE DISTRICT COURT,
CERTIFIED AS CORRECT BY THE CLERK, WERE FILED.  COUNSEL FOR THE UNITED
STATES OBTAINED LEAVE TO MAKE PART OF THE TRANSCRIPT THE DISTRICT
COURT'S OPINION.  THIS WAS OMITTED, HE SAID, THROUGH INADVERTENCE ONLY
RECENTLY DISCOVERED. 

IT IS ASSERTED AND NOT DENIED THAT THE CAUSE WAS HEARD BY THE COURT
WITHOUT OBJECTION TO THE RECORD, AND THAT BOTH SIDES TREATED THE
STATEMENT OF THE EVIDENCE AS CORRECT.  UNDOUBTEDLY, THE RECORD WAS NOT
PROPERLY AUTHENTICATED WITHIN THE REQUIREMENTS OF EQUITY RULES NUMBER
75(B)  FN1 AND 77.  FN2 

UPON ITS OWN MOTION THE CIRCUIT COURT OF APPEALS RAISED THE POINT AND
DECIDED "APPELLANT HAS NOT COMPLIED WITH EITHER OF THESE RULES, BUT HAS
DISREGARDED THEM BOTH.  THERE IS NO STATEMENT OF THE EVIDENCE, NOR IS
THERE ANY AGREED STATEMENT OF THE CASE.  IN THE ABSENCE OF ANY SUCH
STATEMENT, WE INDULGE THE PRESUMPTION THAT THE EVIDENCE SUPPORTS THE
JUDGMENT AND WARRANTS ITS AFFIRMANCE." 

THE TRUSTEE ASKED FOR A REHEARING, ALSO THAT THE RECORD BE RETURNED
TO THE DISTRICT COURT FOR SETTLEMENT AND PROPER AUTHENTICATION.  BOTH
THINGS WERE DENIED.  ONE OF THE JUDGES DISSENTED, AND FROM HIS
UNQUESTIONED STATEMENT IT APPEARS:  "NEITHER PARTY RAISED THE POINT ON
WHICH THE OPINION WAS BASED.  THE POINT TOOK ITS ORIGIN FROM THE BENCH
WITHOUT SUGGESTION FROM OR REFERENCE TO EITHER PARTY AND IN THE FACE OF
EXTENDED ARGUMENT AND VOLUMINOUS BRIEFS BASED UPON THE STATEMENT OF
EVIDENCE CONTAINED IN THE ABSTRACT."  HE THOUGHT THE PETITION FOR
REHEARING SHOULD HAVE BEEN GRANTED AND OPPORTUNITY AFFORDED TO SECURE
PROPER AUTHENTICATION OF THE RECORD. 

MANIFESTLY THE EQUITY RULES SHOULD BE ENFORCED WITH THE STRICTNESS
NECESSARY TO EFFECTUATE THEIR ESSENTIAL PURPOSE; ORDERLY PROCEDURE SO
DEMANDS.  BUT WHEN, AS HERE, THERE IS MERE OMISSION OF SOME STEP WHICH
HAS ESCAPED THE ATTENTION OF BOTH PARTIES, AND WHEN RIGOROUS
ENFORCEMENT WITHOUT FAIR OPPORTUNITY TO CORRECT THE ERROR WOULD DEFEAT
HEARING ON THE MERITS AND ENTAIL UNNECESSARY HARDSHIP, WE THINK
APPROPRIATE RELIEF PROMPTLY ASKED FOR SHOULD BE AFFORDED.  PERMISSION
TO SUPPLY AUTHENTICATION OF THE RECORD WOULD HAVE OCCASIONED NO
MATERIAL INJURY TO ANY PARTY, NOR INTERFERED SERIOUSLY WITH THE
BUSINESS OF THE COURT.  IN THE CIRCUMSTANCES WE MUST REGARD THE DENIAL
OF AN OPPORTUNITY TO AMEND AS AN ABUSE OF DISCRETION - A VIOLATION OF
THE SPIRIT IF NOT THE LETTER OF THE RULES. 

THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS MUST BE REVERSED.  THE
CAUSE WILL BE REMANDED THERE FOR FURTHER PROCEEDINGS IN HARMONY WITH
THIS OPINION.  REVERSED. 

FN1  EQUITY RULE 75(B), AS AMENDED, 286 U.S. 570, 28 U.S.C.A. SEC.
723: 

"THE EVIDENCE TO BE INCLUDED IN THE RECORD, EXCEPT EXPERT TESTIMONY,
SHALL NOT BE SET FORTH IN FULL, BUT SHALL BE STATED IN SIMPLE AND
CONDENSED FORM, ALL PARTS NOT ESSENTIAL TO THE DECISION OF THE
QUESTIONS PRESENTED BY THE APPEAL BEING OMITTED AND THE TESTIMONY OF
WITNESSES BEING STATED ONLY IN NARRATIVE FORM, SAVE THAT IF EITHER
PARTY DESIRES IT, AND THE COURT OR JUDGE SO DIRECTS, ANY PART OF THE
TESTIMONY SHALL BE REPRODUCED IN THE EXACT WORDS OF THE WITNESS.  THE
DUTY OF SO CONDENSING AND STATING THE EVIDENCE SHALL REST PRIMARILY ON
THE APPELLANT, WHO SHALL PREPARE HIS STATEMENT THEREOF AND LODGE THE
SAME IN THE CLERK'S OFFICE FOR THE EXAMINATION OF THE OTHER PARTIES AT
OR BEFORE THE TIME OF FILING HIS PRAECIPE UNDER PARAGRAPH (A) OF THIS
RULE.  HE SHALL ALSO NOTIFY THE OTHER PARTIES OR THEIR SOLICITORS OF
SUCH LODGMENT AND SHALL NAME A TIME AND PLACE WHEN HE WILL ASK THE
COURT OR JUDGE TO APPROVE THE STATEMENT, THE TIME SO NAMED TO BE AT
LEAST TEN DAYS AFTER SUCH NOTICE.  AT THE EXPIRATION OF THE TIME NAMED
OR SUCH FURTHER TIME AS THE COURT OR JUDGE MAY ALLOW, THE STATEMENT,
TOGETHER WITH ANY OBJECTIONS MADE OR AMENDMENTS PROPOSED BY ANY PARTY,
SHALL BE PRESENTED TO THE COURT OR THE JUDGE, AND IF THE STATEMENTS BE
TRUE, COMPLETE AND PROPERLY PREPARED, IT SHALL BE APPROVED BY THE COURT
OR JUDGE, AND IF IT BE NOT TRUE, COMPLETE, OR PROPERLY PREPARED, IT
SHALL BE MADE SO UNDER THE DIRECTION OF THE COURT OR JUDGE AND SHALL
THEN BE APPROVED.  WHEN APPROVED, IT SHALL BE FILED IN THE CLERK'S
OFFICE AND BECOME A PART OF THE RECORD FOR THE PURPOSES OF THE
APPEAL." 

FN2  EQUITY RULE 77, 226 U.S. 672, 28 U.S.C.A. SEC. 723: 

"WHEN THE QUESTIONS PRESENTED BY AN APPEAL CAN BE DETERMINED BY THE
APPELLATE COURT WITHOUT AN EXAMINATION OF ALL THE PLEADINGS AND
EVIDENCE, THE PARTIES, WITH THE APPROVAL OF THE DISTRICT COURT OR THE
JUDGE THEREOF, MAY PREPARE AND SIGN A STATEMENT OF THE CASE SHOWING HOW
THE QUESTIONS AROSE AND WERE DECIDED IN THE DISTRICT COURT AND SETTING
FORTH SO MUCH ONLY OF THE FACTS ALLEGED AND PROVED, OR SOUGHT TO BE
PROVED, AS IS ESSENTIAL TO A DECISION OF SUCH QUESTIONS BY THE
APPELLATE COURT.  SUCH STATEMENT, WHEN FILED IN THE OFFICE OF THE CLERK
OF THE DISTRICT COURT, SHALL BE TREATED AS SUPERSEDING, FOR THE
PURPOSES OF THE APPEAL, ALL PARTS OF THE RECORD OTHER THAN THE DECREE
FROM WHICH THE APPEAL IS TAKEN, AND, TOGETHER WITH SUCH DECREE, SHALL
BE COPIED AND CERTIFIED TO THE APPELLATE COURT AS THE RECORD ON
APPEAL." 
..END :




THOMPSON V. CONSOLIDATED GAS CO., 300 U.S. 55 


NO. 89.  ARGUED NOVEMBER 18, 19, 1936.  - DECIDED FEBRUARY 1, 1937.  -
14 F.SUPP.  318, AFFIRMED. 


1.  UNDER THE COMMON LAW OF TEXAS (APART FROM STATUTE), THE OWNER OF
LAND HAS TITLE TO THE NATURAL GAS IN PLACE, INCLUDING THAT WHICH
MIGRATES THERE FROM OTHER LANDS OF THE GAS FIELD, AND MAY PRODUCE ALL
THAT WILL FLOW FROM HIS WELL, AND MAY DRILL OFF-SETS TO GET HIS FULL
SHARE FROM THE COMMON SUPPLY.  P. 68. 

2.  IN SUPPORT OF ADMINISTRATIVE REGULATIONS PURPORTING TO BE MADE
UNDER LEGAL AUTHORITY, THERE IS A PRESUMPTION OF THE EXISTENCE OF FACTS
JUSTIFYING THE SPECIFIC EXERCISE.  P. 69. 

3.  ORDERS LIMITING AND PRORATING THE PRODUCTION OF GAS BY THE
SEVERAL OWNERS OF LAND IN A GAS FIELD MUST BE HELD INVALID IF SHOWN TO
BEAR NO REASONABLE RELATION EITHER TO THE PREVENTION OF WASTE OR TO THE
PROTECTION OF CORRELATIVE RIGHTS, OR IF SHOWN TO BE OTHERWISE
ARBITRARY.  P. 69. 

4.  QUAERE WHETHER C. 120, TEXAS ACTS, 1935, SHOULD BE CONSTRUED AS
ATTEMPTING TO AUTHORIZE THE STATE RAILROAD COMMISSION TO REDUCE THE
PRODUCTION OF GAS FROM WELLS OWNED BY THE OWNERS OF PRIVATE PIPE-LINES,
FOR THE SOLE PURPOSE OF MAKING THEM BUY GAS PRODUCED BY OTHERS WHO LACK
PIPE-LINE CONNECTIONS.  P. 73. 

5.  THIS COURT IS RELUCTANT TO PASS UPON A SERIOUSLY CONTROVERTED
QUESTION OF THE MEANING OF A STATE STATUTE, BECAUSE ITS DECISION,
ALTHOUGH DISPOSING OF THE PARTICULAR CASE, CANNOT SETTLE THE PROPER
CONSTRUCTION OF THE STATUTE.  P. 74. 

6.  IN CONSTRUING, ON APPEAL, A STATE STATUTE WHICH HAS NOT BEEN
CONSTRUED BY THE STATE COURTS, THIS COURT IS DISPOSED TO ACCEPT THE
CONSTRUCTION GIVEN IT BY THE LOWER FEDERAL COURT, PARTICULARLY WHEN
THAT COURT IS COMPOSED WHOLLY OF CITIZENS OF THE STATE.  P. 74. 

7.  WHERE ONE PARTY'S CASE DEPENDS UPON A CONSTRUCTION OF A STATE
STATUTE BRINGING IT PLAINLY IN CONFLICT WITH THE FEDERAL CONSTITUTION,
AND WHERE THE PROPER CONSTRUCTION OF THE STATUTE HAS NOT BEEN SETTLED
BY THE STATE COURTS BUT IS GRAVELY DOUBTFUL, THIS COURT WILL REST ITS
DECISION ON THE CONSTITUTION, AND WILL NOT UNDERTAKE TO DECIDE THE
QUESTION OF CONSTRUCTION, AS TO WHICH IT LACKS THE POWER TO GIVE A
DEFINITIVE ANSWER.  P. 75. 

8.  ONE PERSON'S PROPERTY MAY NOT BE TAKEN FOR THE BENEFIT OF ANOTHER
PRIVATE PERSON, EVEN THOUGH COMPENSATION BE PAID.  PP. 77-79. 

9.  SOME OF THE OWNERS OF WELLS IN A TEXAS GAS FIELD HAD ESTABLISHED
CONTRACT LIGHT AND FUEL MARKETS FOR THEIR GAS IN DISTANT PLACES BY
MEANS OF THEIR PRIVATELY OWNED PIPE-LINES.  THE OTHER OWNERS OF WELLS
COULD NOT OPERATE BECAUSE THERE WAS NO LOCAL LIGHT AND FUEL MARKET FOR
GAS AND THEY HAD NO PIPE-LINES TO TRANSPORT IT ELSEWHERE, AND BECAUSE
TO EMPLOY IT IN THE MANUFACTURE OF NATURAL GASOLINE AND CARBON BLACK
WAS FORBIDDEN BY THE STATE AS WASTEFUL.  THE TEXAS RAILROAD COMMISSION,
CLAIMING AUTHORITY UNDER A STATUTE (C. 120, TEXAS ACTS, 1935), MADE AN
ORDER PURPORTING TO LIMIT THE TOTAL DAILY PRODUCTION OF THE FIELD AND
TO PRORATE THE ALLOWED PRODUCTION AMONG THE SEVERAL WELLS.  ALTHOUGH
THE PIPE-LINE OWNERS WERE OPERATING THEIR WELLS WITHOUT WASTE AND
WITHOUT INJURY TO OTHERS, AND ALTHOUGH THEIR SUPPLY WAS AMPLE TO SUPPLY
THEIR MARKET NEEDS, THE ORDER, IF ENFORCED, WOULD HAVE REDUCED THEIR
PRODUCTION SO DRASTICALLY THAT, TO FULFILL THEIR CONTRACT OBLIGATIONS
TO THEIR CUSTOMERS, THEY MUST PURCHASE GAS FROM THE OTHER WELL OWNERS
AND MUST SUFFER OTHER LOSSES THROUGH CURTAILMENT OF PLANT ACTIVITY AND
THROUGH MIGRATION OF GAS UNDERGROUND AWAY FROM THEIR WELLS TO OTHER
PARTS OF THE FIELD WHERE THE PRESSURE WAS LOWER.  THE PURPOSE OF THE
ORDER, AS PLAINLY SHOWN BY EVIDENCE AND COURT FINDINGS, WAS NEITHER TO
PREVENT WASTE NOR TO PREVENT UNDUE DRAINAGE FROM THE RESERVES OF OTHER
WELL OWNERS, BUT WAS SOLELY TO COMPEL THE PIPE-LINE OWNERS TO FURNISH A
MARKET TO THOSE WHO HAD NO PIPE-LINE CONNECTIONS.  HELD THE ORDER IS
VOID UNDER THE FEDERAL CONSTITUTION AS A TAKING OF PRIVATE PROPERTY FOR
PRIVATE BENEFIT.  PP. 76-79. 

10.  A PRIVATE PARTY IS NOT ESTOPPED TO ATTACK PROVISIONS OF A
STATUTE THAT ARE HARMFUL TO HIS INTERESTS MERELY BECAUSE HE SOUGHT THE
ENACTMENT OF OTHER AND SEPARABLE PROVISIONS IN IT, BENEFICIAL TO HIM IN
AN INCIDENTAL WAY, BUT NEITHER RELIED ON BY HIM NOR BROUGHT IN
QUESTION, IN THE LITIGATION.  P. 80. 

THOMPSON ET AL. V. CONSOLIDATED GAS UTILITIES CORP. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF TEXAS. 

APPEAL FROM DECREES OF THE DISTRICT COURT, OF THREE JUDGES, WHICH
PERMANENTLY ENJOINED THE RAILROAD COMMISSION OF THE STATE OF TEXAS AND
THE ATTORNEY GENERAL FROM ENFORCING AN ORDER OF THE COMMISSION LIMITING
PRODUCTION OF GAS IN THE PANHANDLE FIELDS.  THE TWO CASES WERE
CONSOLIDATED FOR PURPOSE OF APPEAL.  SEE ALSO 12 F.SUPP.  462, A
DECISION ON MOTION FOR A PRELIMINARY INJUNCTION. 

MR. JUSTICE BRANDEIS DELIVERED THE OPINION OF THE COURT. 

THIS CASE CHALLENGES THE VALIDITY OF A GAS PRORATION ORDER ISSUED BY
THE RAILROAD COMMISSION OF TEXAS FOR THE PANHANDLE FIELDS ON DECEMBER
10, 1935, AND CARRIED FORWARD IN SUPPLEMENTAL ORDERS.  FN1  THE ORDERS
WERE ENTERED UNDER CHAPTER 120 OF THE TEXAS ACTS, 1935, FORTY-FOURTH
LEGISLATURE, REGULAR SESSION, COMMONLY KNOWN AS HOUSE BILL 266.  UNDER
THE ORDERS THE PRODUCTION OF SWEET GAS FROM THE PLAINTIFFS' WELLS IS
LIMITED TO AN AMOUNT BELOW THEIR MARKET REQUIREMENTS UNDER EXISTING
CONTRACTS, BELOW THEIR PRESENT PRODUCTION, AND BELOW THE CAPACITY OF
THEIR TRANSPORTATION AND MARKETING FACILITIES.  IT IS CHARGED THAT THE
PURPOSE OF SO LIMITING THE PRODUCTION IS NOT TO PREVENT WASTE, OR TO
PREVENT INVASION OF THE LEGAL RIGHTS OF CO-OWNERS IN THE COMMON
RESERVOIR, BUT SOLELY TO COMPEL THE PLAINTIFFS, AND OTHERS SIMILARLY
SITUATED, TO PURCHASE GAS FROM THOSE WELL OWNERS WHO HAVE NOT PROVIDED
THEMSELVES WITH A MARKET AND MARKETING FACILITIES - WELL OWNERS WHO
UNDER EXISTING LAW ARE OBLIGED TO STOP PRODUCTION, FOR WANT OF A
MARKET, UNLESS SOME MARKETING OUTLET IS FOUND. 

TWO SUITS TO ENJOIN ENFORCEMENT OF THE ORDER WERE BROUGHT IN THE
FEDERAL COURT FOR WESTERN TEXAS.  ONE WAS BY TEXAS PANHANDLE GAS
UTILITIES COMPANY, FOR WHICH CONSOLIDATED GAS UTILITIES CORPORATION HAS
BEEN SUBSTITUTED AS PLAINTIFF; THE OTHER BY TEXOMA NATURAL GAS
COMPANY.  IN EACH SUIT THE MEMBERS OF THE RAILROAD COMMISSION AND THE
ATTORNEY GENERAL OF THE STATE WERE MADE DEFENDANTS.  THE PROPERTIES FOR
WHICH THE PLAINTIFFS SEEK PROTECTION ARE THEIR SWEET GAS WELLS AND
RESERVES IN THE TEXAS PANHANDLE; THEIR PIPE LINES EXTENDING INTO OTHER
STATES; THEIR COMPRESSORS AND MARKETING FACILITIES FOR USE IN
CONNECTION THEREWITH; AND CONTRACTS WHICH THEY HAVE MADE FOR THE SUPPLY
OF THE GAS TO DISTRIBUTORS IN OTHER STATES.  THE PLAINTIFFS CLAIM THAT
THE ORDER TAKES THIS PROPERTY WITHOUT WARRANT IN LAW.  THEY CONTEND
THAT THE ORDER IS IN EXCESS OF THE AUTHORITY WHICH HOUSE BILL 266
CONFERS UPON THE COMMISSION; AND THAT IF THE STATUTE BE CONSTRUED AS
CONFERRING THE AUTHORITY EXERCISED, IT VIOLATES THE FEDERAL
CONSTITUTION AND THAT OF THE STATE.  THE DISTRICT JUDGE ISSUED A
RESTRAINING ORDER.  THE CASES WERE CONSIDERED TOGETHER.  THE COURT,
THREE JUDGES SITTING, GRANTED TEMPORARY INJUNCTIONS, TEXAS PANHANDLE
GAS CO. V. THOMPSON, 12 F.SUPP.  462,  FN2  AND MADE THEM PERMANENT,
CONSOLIDATED GAS UTILITIES CORP. V. THOMPSON, 14 F.SUPP.  318.  THE
CASES WERE CONSOLIDATED FOR PURPOSES OF APPEAL.  THE JURISDICTION,
FEDERAL AND EQUITABLE, WAS NOT QUESTIONED.  THE RECORD IS EXTENSIVE;
THE FINDINGS OF FACT EXPLICIT; THE BRIEFS IN THIS COURT OCCUPY OVER 500
PAGES. 

THE TEXAS PANHANDLE CONTAINS THE LARGEST NATURAL GAS FIELD IN THE
UNITED STATES, AN ENORMOUS RESERVOIR OF NATURAL GAS AND OIL EXTENDING
THROUGH SEVEN COUNTIES FOR A DISTANCE OF 125 MILES WITH A WIDTH OF FROM
10 TO 40 MILES.  THE DEVELOPMENT OF THE GAS INDUSTRY WHICH BEGAN THERE
IN 1926 HAS PROCEEDED AT A RAPID RATE SINCE 1933.  THE FIELD PRODUCES
BOTH SWEET AND SOUR GAS.  FN3  WASTEFUL USE OF SWEET GAS IS PROHIBITED
BY THE STATUTE; AND, WITHIN THE STATUTORY DEFINITION, PRACTICALLY THE
ONLY NON-WASTEFUL USE IS FOR HEAT AND LIGHT.  FOR SUCH USE THERE IS
SUBSTANTIALLY NO LOCAL MARKET,  FN4  AS THE REGION IS SPARSELY
SETTLED.  GAS CANNOT BE STORED.  TO UTILIZE THE SWEET GAS OF THE
PANHANDLE FIELD, IT MUST BE DELIVERED TO THE ULTIMATE CONSUMER BY PIPE
LINES IN A CONTINUOUS FLOW FROM THE WELLS TO THE BURNER TIPS OF THE
CONSUMER.  PRIOR TO THE ENTRY OF THE ORDERS CHALLENGED, THE OWNERS OF
APPROXIMATELY 80 PERCENT OF THE TOTAL AREA IN THE PANHANDLE FIELDS
PROVEN PRODUCTIVE OF SWEET GAS HAD CONSTRUCTED SIX MAJOR PIPE LINES
FROM THE WEST PANHANDLE FIELD,  FN5  AND THREE FROM THE EAST PANHANDLE
FIELD, EXTENDING TO CHICAGO, DES MOINES, OMAHA, SIOUX CITY, KANSAS
CITY, ST. PAUL, INDIANAPOLIS, DENVER, MINNEAPOLIS, FORT WORTH, DALLAS,
AND OTHER DISTANT POINTS.  SIX OR SEVEN OF THESE MAJOR PIPE LINE
COMPANIES, INCLUDING THE PLAINTIFFS', HAVE PRODUCED AND TRANSPORTED TO
THE MARKETS ONLY GAS PRODUCED FROM THEIR OWN LEASES. 

UNDER THE RESTRICTIONS IMPOSED BY THE PRESENT STATUTE, THERE IS
SUBSTANTIALLY NO MARKET OUTLET FOR THE SWEET GAS OF THESE FIELDS EXCEPT
SUCH AS MAY BE PROVIDED BY PIPE LINES.  THE OWNERS OF 180 WELLS IN THE
WEST PANHANDLE FIELD, AND OF 121 WELLS IN THE EAST PANHANDLE FIELD,
TOGETHER REPRESENTING ABOUT 20 PER CENT OF THE PROVEN RESERVES OF SWEET
GAS IN THE WHOLE FIELD, NEITHER OWN NOR CONTROL ANY PIPE LINE.  AND
THEY HAVE NO ACCESS TO ANY; FN6  SINCE NONE OF THE PIPE LINES HERE
INVOLVED IS A COMMON CARRIER.  THE PLAINTIFFS AND MOST OF THE OTHER
OWNERS OF PIPE LINES HAVE NO ECONOMIC OCCASION TO PURCHASE GAS FROM
WELLS OF THE NON-PIPE LINE PRODUCERS, AS THE POTENTIAL CAPACITY OF
THEIR OWN WELLS FAR EXCEEDS THEIR MARKET DEMAND.  FN7  THERE APPEARS NO
LEGAL OBSTACLE, UNDER THE LAW OF TEXAS, TO THE CONSTRUCTION OF
ADDITIONAL PIPE LINES TO SERVE THE OWNERS OF WELLS IN THE PANHANDLE
FIELDS NOW WITHOUT SUCH CONNECTIONS.  IT IS SAID THAT THERE ARE
COMMUNITIES IN OTHER STATES WHICH WOULD AFFORD MARKETS IF PIPE LINES
WERE CONSTRUCTED TO REACH THEM.  BUT THE FINANCIAL DIFFICULTIES ARE
OBVIOUS. 

PRIOR TO HOUSE BILL 266, SEVERAL EFFORTS, STATUTORY AND
ADMINISTRATIVE, HAD BEEN MADE TO COMPEL, OR INDUCE, THE OWNERS OF
EXISTING PIPE LINES TO PURCHASE THE SWEET GAS OF THOSE WELL OWNERS WHO
LACK PIPE LINE FACILITIES.  ORDERS ENTERED UNDER STATUTES ENACTED PRIOR
TO 1933 WERE ENJOINED AS UNCONSTITUTIONAL OR ULTRA VIRES.  FN8  BY
CHAPTER 100, ACTS 1933, FORTY-THIRD LEGISLATURE, REGULAR SESSION,  FN9
THE USE OF NATURAL GAS WAS PERMITTED FOR OTHER PURPOSES THAN LIGHT OR
FUEL, INCLUDING THE MANUFACTURE OF NATURAL GASOLINE, WHERE NO
REASONABLE MARKET FOR LIGHT OR FUEL WAS AVAILABLE TO THE OWNER. 
PRODUCTION UNDER AUTHORITY OF THIS STATUTE AND THE PERMITS ISSUED
THEREUNDER WAS FOUND TO INVOLVE INTOLERABLE WASTE.  FN10  SUCH WAS THE
SITUATION, WHEN ON MAY 1, 1935, THE LEGISLATURE ENACTED HOUSE BILL 266,
UNDER WHICH THE ORDER HERE CHALLENGED WAS ISSUED. 

THE ACT UNDERTAKES BY DRASTIC PROVISIONS TO END THE WASTE OF SWEET
GAS.  IT PROVIDES: 

"SEC. 3.  THE PRODUCTION, TRANSPORTATION, OR USE OF NATURAL GAS IN
SUCH MANNER, IN SUCH AMOUNT, OR UNDER SUCH CONDITIONS AS TO CONSTITUTE
WASTE IS HEREBY DECLARED TO BE UNLAWFUL AND IS PROHIBITED.  THE TERM
'WASTE' AMONG OTHER THINGS SHALL SPECIFICALLY INCLUDE:  (THEN FOLLOW
SPECIFICATIONS (A) TO (M) INCLUSIVE). 

"(H)  THE PRODUCTION OF NATURAL GAS IN EXCESS OF TRANSPORTATION OR
MARKET FACILITIES, OR REASONABLE MARKET DEMAND FOR THE TYPE OF GAS
PRODUCED." 

THE DEFENDANTS CONTEND THAT THE ACT LIKEWISE REQUIRES RESTRICTION OF
PRODUCTION REGARDLESS OF THE EXISTENCE OF WASTE, FOR THE ADJUSTMENT OF
RIGHTS OF OWNERS IN A COMMON RESERVOIR OF GAS.  AND AS WE READ THE
SUBSTANCE OF DEFENDANTS' ARGUMENT, THEY ALSO CONSTRUE THE STATUTE AS
AUTHORIZING GAS PRORATION ORDERS, TO PROVIDE A MARKET FOR THE SWEET GAS
OF THOSE WELLS WHICH, BECAUSE THEY LACK PIPE LINE CONNECTIONS, HAVE
HERETOFORE SOLD THEIR GAS FOR INFERIOR, WASTEFUL USES.  THESE CLAIMS
ARE RESTED PRIMARILY ON THE FOLLOWING PROVISION: 

"SEC. 10.  IT SHALL BE THE DUTY OF THE COMMISSION TO PRORATE AND
REGULATE THE DAILY GAS WELL PRODUCTION FROM EACH COMMON RESERVOIR IN
THE MANNER AND METHOD HEREIN SET FORTH.  THE COMMISSION SHALL PRORATE
AND REGULATE SUCH PRODUCTION FOR THE PROTECTION OF PUBLIC AND PRIVATE
INTERESTS: (A) IN THE PREVENTION OF WASTE AS 'WASTE' IS DEFINED HEREIN;
(B) IN THE ADJUSTMENT OF CORRELATIVE RIGHTS AND OPPORTUNITIES OF EACH
OWNER OF GAS IN A COMMON RESERVOIR TO PRODUCE AND USE OR SELL SUCH GAS
AS PERMITTED IN THIS ARTICLE." 

THIS PROVISION IS SUPPLEMENTED BY OTHERS INCLUDING THOSE SET FORTH IN
THE MARGIN.  FN11 

ON DECEMBER 10, 1935, THE RAILROAD COMMISSION, AFTER HEARINGS HELD,
ISSUED THE BASIC ORDER HERE CHALLENGED, WHICH PROVIDES, AMONG OTHER
THINGS: 

"IT IS ORDERED, THAT EFFECTIVE, 7 O'CLOCK A.M., DECEMBER 11, 1935,
THE DAILY ALLOWABLE GAS PRODUCTION, COMPUTED ON THE BASIS SET FORTH IN
HOUSE BILL NO. 266, IS AS FOLLOWS: 

EAST PANHANDLE FIELD.................... 181,174,000 CUBIC FEET DAILY 

WEST SWEET PANHANDLE FIELD.............. 608,552,000 CUBIC FEET
DAILY 

WEST SOUR PANHANDLE FIELD............... 451,137,000 CUBIC FEET
DAILY 

"IT IS ORDERED, THAT THE DAILY ALLOWABLE PRODUCTION OF GAS FOR
INDIVIDUAL WELLS IN THE EAST AND WEST PANHANDLE FIELDS SHALL BE
DETERMINED BY DIVIDING THE REASONABLE MARKET DEMAND INTO TWO PARTS, AND
THAT THESE PARTS SHALL BE DISTRIBUTED TO EACH WELL IN PROPORTION TO THE
RELATIVE PRODUCING ABILITY OF THESE INDIVIDUAL WELLS AND THE NUMBER OF
ACRES CONTAINING EACH OF THESE WELLS, BUT IN NO CASE SHALL MORE THAN
ONE HUNDRED SIXTY (160) ACRES IN THE EAST PANHANDLE FIELD AND NOT MORE
THAN SIX HUNDRED FORTY (640) ACRES IN THE WEST PANHANDLE FIELD, IN BOTH
SWEET AND SOUR ZONES, BE ALLOCATED TO ANY ONE WELL FOR THE PURPOSE OF
PRORATION. 

"IT IS ORDERED, THAT THE TOTAL DAILY ALLOWABLE PRODUCTION OF GAS FROM
GAS WELLS IN THE EAST AND WEST PANHANDLE FIELDS SHALL BE DISTRIBUTED
AND PRORATED AMONG THE INDIVIDUAL WELLS ON THE FOLLOWING BASIS AND IN
THE FOLLOWING MANNER, TO-WIT:  FIFTY (50%) PER CENT OF THE REASONABLE
MARKET DEMAND OF THE FIELD SHALL BE ALLOCATED ON THE RATIO OF THE
INDIVIDUAL WELL ACREAGE TO THE SUM OF THE TOTAL WELL ACREAGE IN THE
FIELD; AND FIFTY (50%) PER CENT OF THE REASONABLE MARKET DEMAND OF THE
FIELD SHALL BE ALLOCATED ON THE RATIO OF THE INDIVIDUAL WELL POTENTIAL
TO THE SUM OF THE TOTAL WELL POTENTIALS IN THE FIELD." 

THE ORDER REDUCES PLAINTIFFS' ALLOWABLE PRODUCTION TO A VOLUME FAR
BELOW THEIR REQUIREMENTS.  THE PLAINTIFFS AND OTHER PIPE LINE OWNERS
ACQUIRED, AT LARGE COST, THEIR MARKETS IN DISTANT STATES AND THEIR
TRANSPORTATION AND MARKETING FACILITIES.  FN12  BY MEANS OF THEIR PIPE
LINES ALL THE SWEET GAS PRODUCED BY THE PLAINTIFFS (AND LIKEWISE ALL
PRODUCED BY OTHER PIPE LINE OWNERS) WAS, AND IS, MARKETED UNDER
CONTRACTS WITH DISTANT DISTRIBUTORS, CHIEFLY IN OTHER STATES.  THESE
MARKETS ARE NOT FREE MARKETS.  THE PLAINTIFFS NECESSARILY BOUND
THEMSELVES TO SUPPLY THE REQUIREMENTS OF THE DISTRIBUTORS; AND THE
DISTRIBUTORS BOUND THEMSELVES TO TAKE THEIR REQUIREMENTS FROM THE
PLAINTIFFS.  IN ORDER TO FULFILL THEIR CONTRACTUAL OBLIGATIONS, THE
PLAINTIFFS DEVELOPED THE CAPACITY OF THEIR WELLS AND ACQUIRED LARGE
RESERVES TO PROVIDE FOR THEIR FUTURE NEEDS SO THAT THEY HAVE NO
OCCASION TO PURCHASE GAS FROM OTHER WELLS.  BY LIMITING THE PLAINTIFFS'
ALLOWABLE PRODUCTION, THE ORDER DISABLES THEM FROM PERFORMING THEIR
CONTRACTS UNLESS THEY PURCHASE GAS FROM NONPIPE-LINE WELLS.  SUCH
PURCHASES WOULD AT LEAST INVOLVE THE COST OF THE GAS AND THE LOSS
RESULTING FROM FAILURE TO MAKE FULLER USE OF THEIR OWN PROPERTY. 

THE PLAINTIFFS DO NOT CONTEST THAT THE STATE HAS POWER TO CONSERVE
ITS NATURAL RESOURCES FOR THE PUBLIC, AS WELL AS TO PROTECT PRIVATE
RIGHTS,  FN13  OR THAT THE LEGISLATURE HAS POWER TO CONFER UPON THE
RAILROAD COMMISSION AUTHORITY TO MAKE AND ENFORCE REGULATIONS TO THAT
END; OR THAT TO LIMIT PRODUCTION TO THE AGGREGATE REASONABLE MARKET
DEMAND IS, AS A CONSERVATION MEASURE, CLEARLY PROPER IN THE INTEREST OF
THE PUBLIC AND OF THE PRIVATE PERSONS OWNING THE RIGHT TO DRAW FROM A
COMMON RESERVOIR; OR THAT THE COMMISSION HAS AUTHORITY TO ISSUE
REGULATIONS TO THAT END.  THE PLAINTIFFS DO NOT DENY THAT THE
LEGISLATURE MAY CONFER UPON THE RAILROAD COMMISSION ALSO AUTHORITY TO
PRORATE THE TOTAL ALLOWABLE PRODUCTION AMONG ALL THE INDIVIDUAL WELLS
WHICH DRAW FROM THE COMMON RESERVOIR, PROVIDED THE PRORATION IS IN
ACCORDANCE WITH THEIR RESPECTIVE MARKET DEMANDS AND DUE CONSIDERATION
IS GIVEN TO EXISTING RESERVES.  BUT THEY INSIST THAT HOUSE BILL 266 HAS
NOT CONFERRED THAT AUTHORITY.  AND AS TO THE ORDER, THE PLAINTIFFS
ASSERT THAT, WHILE RESTRICTIVE IN FORM, IT IS IN FACT COERCIVE; THAT
ITS PURPOSE AND EFFECT ARE NOT TO PREVENT WASTE OF GAS IN THE COMMON
RESERVOIR NOR TO PRORATE THE OPPORTUNITIES OF PRODUCTION AS
DISTINGUISHED FROM MARKETING; THAT THE LIMITATION OF THE PRODUCTION OF
THE WELLS IS MERELY A DEVICE TO COMPEL THE INDIVIDUAL PLAINTIFFS, AND
OTHER PIPE LINE OWNERS, TO PURCHASE GAS FOR WHICH THEY HAVE NO NEED;
THAT THE REAL PURPOSE AND EFFECT OF THE ORDER ARE TO PRORATE NOT
PRODUCTION, BUT DISTANT MARKETS AND THE FACILITIES FOR SERVING THEM;
AND THAT, THUS, THE ORDER TAKES THEIR PROPERTY WITHOUT WARRANT IN LAW. 
FIRST.  PRIOR TO THE ENACTMENT OF HOUSE BILL 266,  FN14  THE PROPERTY
RIGHTS OF THE PLAINTIFFS WERE SUBSTANTIALLY THOSE CONFERRED BY THE
COMMON LAW OF THE STATE.  UNDER IT, THE OWNER OF LAND HAS TITLE TO OIL
AND GAS IN PLACE AND, LIKEWISE, TO THE OIL AND GAS WHICH MIGRATE TO
FORMATIONS UNDER HIS LAND THROUGH DRAINAGE FROM OTHER LANDS.  FN15
UNDER THAT RULE, HE MAY PRODUCE ALL THE OIL AND GAS THAT WILL FLOW OUT
OF THE WELL ON HIS LAND, SUBJECT TO THE EXERCISE BY OTHER LANDOWNERS OF
THE SAME RIGHT OF CAPTURE THROUGH DRILLING OFFSETTING WELLS, SO AS TO
GET THEIR FULL SHARE.  FN16  THIS COMMON LAW RULE, DECLARED IN AN
UNBROKEN LINE OF AUTHORITIES, HAS BEEN WIDELY APPLIED.  FN17  WHILE A
PRODUCER WHO NEGLIGENTLY USES EXPLOSIVES IN HIS OPERATIONS WILL BE
LIABLE IF HE CAUSES PHYSICAL DAMAGE TO HIS NEIGHBORS' GAS AND OIL
BEARING STRATA AND THUS IMPAIRS THE PRODUCTIVITY THEREOF,  FN18  THE
COMMON LAW OF THE STATE DID NOT, APPARENTLY, AFFORD A REMEDY AGAINST
DEPLETING THE COMMON SUPPLY BY WASTEFUL TAKING OR USE OF OIL OR GAS
DRAWN FROM THE WELLS ON ONE'S OWN PROPERTY.  BUT SINCE 1899 THE
LEGISLATURE OF THE STATE HAS PROHIBITED, OR CURBED, CERTAIN PRACTICES
IN THE PRODUCTION OF GAS AND OIL WHICH IT RECOGNIZED AS WASTEFUL. 
FN19 

SECOND.  THE DEFENDANTS CONTEND THAT THE ORDER ASSAILED IS A
REGULATION DULY PROMULGATED FOR THE PREVENTION OF WASTE, AND THE
PROTECTION OF CORRELATIVE RIGHTS OF OWNERS IN THE COMMON POOL, AND WAS
SO APPLIED.  IT MAY BE ASSUMED THAT HOUSE BILL 266 SHOULD BE CONSTRUED
AS AUTHORIZING REGULATIONS TO PREVENT WASTE, AND TO CREATE AND PROTECT
CORRELATIVE RIGHTS OF OWNERS IN A COMMON RESERVOIR OF GAS TO THEIR
JUSTLY PROPORTIONATE SHARES THEREOF, FREE OF DRAINAGE TO NEIGHBORING
LANDS.  IT MAY BE ASSUMED, ALSO, THAT THE STATUTE, SO CONSTRUED, IS A
VALID EXERCISE OF THE STATE'S UNDOUBTED POWER TO LEGISLATE TO THOSE
ENDS; AND THAT IT VALIDLY DELEGATES TO THE RAILROAD COMMISSION
AUTHORITY TO PROMULGATE REGULATIONS THEREFOR.  IT IS SETTLED THAT TO
ALL ADMINISTRATIVE REGULATIONS PURPORTING TO BE MADE UNDER AUTHORITY
LEGALLY DELEGATED, THERE ATTACHES A PRESUMPTION OF THE EXISTENCE OF
FACTS JUSTIFYING THE SPECIFIC EXERCISE.  PACIFIC STATES BOX & BASKET
CO. V. WHITE, 296 U.S. 176, 185.  BUT, OBVIOUSLY, THE PRORATION ORDERS
WOULD NOT BE VALID IF SHOWN TO BEAR NO REASONABLE RELATION EITHER TO
THE PREVENTION OF WASTE OR THE PROTECTION OF CORRELATIVE RIGHTS, OR IF
SHOWN TO BE OTHERWISE ARBITRARY.  THE PLAINTIFFS HAVE ASSUMED THE HEAVY
BURDEN OF OVERCOMING THE PRESUMPTION AND OF ESTABLISHING THAT THE ORDER
IS AN ARBITRARY TAKING OF THEIR PROPERTY.  THEY ASSERT, AMONG OTHER
THINGS, THAT THEY HAVE, AT ALL TIMES, CONDUCTED THEIR OPERATIONS
PRUDENTLY AND WITHOUT WASTE; THAT THEY HAVE, IN FACT, TAKEN ONLY A
SMALL PART OF THE GAS IN THE GROUND WHICH THEY OWN OR LEASE; AND THAT
THERE IS NO PRESENT DANGER THAT THE PIPE LINE OWNERS WILL, BY
CONTINUING TO OPERATE AS THEY HAVE DONE, CAUSE WASTE OR PREJUDICE
EITHER TO ANY PUBLIC INTEREST, OR TO A PROPERTY RIGHT OF ANY OTHER
PERSON.  WE THINK THE PLAINTIFFS HAVE SUSTAINED THE BURDEN RESTING UPON
THEM.  FOR THEIR ASSERTIONS ARE ADEQUATELY SUPPORTED BY THE FOLLOWING
SPECIAL FINDINGS OF THE LOWER COURT: 

1.  "THE OWNERS OF WELLS CONNECTED TO PIPE LINES, INCLUDING
COMPLAINANTS, HAVE ALWAYS PRODUCED THEIR WELLS IN A PRUDENT AND SKILFUL
MANNER AND IN ACCORDANCE WITH THE MOST APPROVED METHODS OF PRODUCTION,
WITHOUT COMMITTING OR CAUSING PHYSICAL WASTE." 

2.  "BEFORE HOUSE BILL 266 WENT INTO EFFECT, GROSSLY WASTEFUL
PRACTICES IN THE PRODUCTION OF NATURAL GAS IN THE PANHANDLE FIELD WERE
OCCURRING," BUT "MOST OF THIS WASTE WAS DUE TO THE EXTRAVAGANT
PRODUCTION OF NATURAL GAS FROM OIL WELLS AND TO THE PRODUCTION OF GAS
FROM GAS WELLS AND PROCESSING SUCH GAS FOR THE EXTRACTION OF A VERY
SMALL QUANTITY OF NATURAL GASOLINE THEREFROM AND POPPING OR WASTING TO
THE AIR THE RESIDUE GAS, WHICH CONSTITUTED 97% OF THE FUEL VALUE OF THE
GAS IN ITS ORIGINAL STATE....  NO EVIDENCE WAS OFFERED - INDEED, IT WAS
NOT EVEN SERIOUSLY CLAIMED - THAT ANYTHING COMPLAINANT HAD DONE OR
CONTEMPLATED DOING HAS, IN THE SLIGHTEST DEGREE, CONTRIBUTED OR WILL
CONTRIBUTE TO THAT WASTE." 

3.  EVEN IF THE EFFECT OF THE TEXAS LEGISLATION BE TO HALT PRODUCTION
BY OTHER WELL OWNERS, "THE PRODUCTION FROM THEIR OWN WELLS BY
COMPLAINANT AND OTHER PIPE LINES OF THE QUANTITY OF GAS REQUIRED FROM
TIME TO TIME TO FULFILL THEIR MARKETING CONTRACTS AND REQUIREMENTS WILL
CAUSE NO CONING OR CHANNELING OF WATER, NO TRAPPING OFF OF RECOVERABLE
OIL OR GAS, NO UNDERGROUND WASTE OF OIL, GAS OR RESERVOIR ENERGY OR
REDUCTION OF THE TOTAL QUANTITY OF RECOVERABLE GAS FROM THE FIELD, EVEN
THOUGH THE OTHER WELLS IN THE SWEET GAS AREA OF THE WEST PANHANDLE
FIELD BE PRODUCED AT A MUCH LOWER RATE OR BE NOT PRODUCED." 

4. LARGE AND WASTEFUL PRODUCTION OF GAS IN CONNECTION WITH PRODUCTION
OF OIL IN THE PANHANDLE FIELD, AND, MORE RECENTLY, IN CONNECTION WITH
THE OPERATIONS OF PLANTS "STRIPPING" THE GAS OF ITS NATURAL GASOLINE
CONTENT, "HAS RESULTED IN THE MIGRATION OF TREMENDOUS QUANTITIES OF
NATURAL GAS FROM THE SOUTHWESTERN SIDE OF THE FIELD TO THE NORTHEASTERN
SIDE OF THE FIELD.  MANY OF THESE AREAS OF LOW PRESSURE ARE SITUATED IN
THE SOUR GAS PRODUCING AREA, WITH THE RESULT THAT TREMENDOUS QUANTITIES
OF SWEET GAS HAVE MOVED OUT FROM THE SWEET GAS AREA INTO THE SOUR GAS
AREA," AND HAVE THUS BECOME UNFIT FOR USE AS FUEL FOR LIGHTING AND
HEATING PURPOSES.  DRAINAGE AWAY FROM THE AREAS OF COMPLAINANTS'
HOLDINGS IS FOUND TO HAVE BEEN INTENSIFIED BY DISPROPORTIONATE
PRODUCTION OF GAS FROM GAS WELLS NOT CONNECTED TO PIPE LINES.  IN THE
EAST PANHANDLE FIELD "THE LEASES ON WHICH THE WELLS CONNECTED TO PIPE
LINES ARE LOCATED HAVE PRODUCED AN AVERAGE - (OF) 8,116,000 CUBIC FEET
OF GAS PER ACRE, AND THOSE ON WHICH THE WELLS CONNECTED TO STRIPPING
PLANTS ARE LOCATED HAVE PRODUCED AN AVERAGE OF 16,662,000 CUBIC FEET
PER ACRE."  IN THE WEST PANHANDLE FIELD, PRODUCTION AT THE TIME OF
TRIAL OF THIS CASE HAD AGGREGATED 4,427,642,131,000 CUBIC FEET.  "OF
THIS TOTAL THE PIPE LINES, WITH AN OWNERSHIP OF 56% OF THE TOTAL
RESERVES, HAVE PRODUCED ONLY 529,545,454,000 CUBIC FEET, WHILE THE
OWNERS OF THE OTHER 44% HAVE PRODUCED 3,898,096,776,000 CUBIC FEET. 
COMPLAINANT, WITH AN OWNERSHIP OF APPROXIMATELY 20% OF THE TOTAL
RESERVES, HAD PRODUCED ONLY 98,808,409,000 CUBIC FEET, OR 2.25% OF THE
TOTAL WITHDRAWALS FROM THE WEST PANHANDLE FIELD."  THE AVERAGE ROCK
PRESSURE OF THE WELLS NOT CONNECTED TO PIPE LINES IS MATERIALLY LOWER
THAN THAT OF COMPLAINANTS' AND OTHER PIPE LINE COMPANIES' WELLS. 
HENCE, IN THE WEST PANHANDLE FIELD, "BY REASON OF THESE DIFFERENTIALS
IN PRESSURE BETWEEN THE WELLS CONNECTED TO PIPE LINES AND THOSE NOT
CONNECTED, THE MIGRATION OR DRAINAGE AS A WHOLE IS FROM THE WELLS
CONNECTED TO PIPE LINES, INCLUDING THOSE CONNECTED TO COMPLAINANT'S
PIPE LINES, TO THE WELLS NOT CONNECTED TO PIPE LINES."  LIKEWISE, "ALL
ALONG THE NORTHEAST SLOPE OF THE STRUCTURE IN THE EAST PANHANDLE FIELD
THERE IS AN EXTREMELY LOW PRESSURE AREA, WHERE TREMENDOUS QUANTITIES OF
GAS HAVE BEEN PRODUCED IN CONNECTION WITH THE OPERATION OF OIL WELLS
AND WELLS CONNECTED TO STRIPPING PLANTS.  THE GENERAL DRAINAGE IN THE
EAST PANHANDLE FIELD IS FROM THE AREAS OF HIGH PRESSURE TOWARD AND TO
THESE LOW PRESSURE AREAS.  THE MAJORITY OF THE WELLS NOT CONNECTED TO
PIPE LINES ARE SITUATED IN THESE LOW PRESSURE AREAS, OR BETWEEN THESE
LOW PRESSURE AREAS AND THE HIGH PRESSURE AREAS TO THE SOUTH AND WEST
THEREOF, IN WHICH AREAS OF HIGHER PRESSURE THE WELLS CONNECTED TO THE
PIPE LINES ARE SITUATED....  VERY LARGE QUANTITIES OF GAS HAVE MIGRATED
FROM THE RESERVES OF THE PIPE LINES, INCLUDING THE RESERVES OF
COMPLAINANTS, TO THE LOW PRESSURE AREAS IN AND AROUND THE OIL FIELDS ON
THE NORTHEAST SLOPE OF THE RESERVOIR AND TO THE AREAS ON WHICH MOST OF
THE 391 WELLS BELONGING TO OTHERS THAN THE PIPE LINES IN THE WEST
PANHANDLE FIELD ARE SITUATED."  FURTHER, PAST LOSSES DO NOT COMPLETE
THE STORY.  "WITHOUT REGARD TO THE RATE OF WITHDRAWAL IN THE EXISTING
AREAS OF LOW PRESSURE, THE MIGRATION OF GAS FROM THE RESERVES OF THE
PIPE LINES TO THOSE AREAS OF LOW PRESSURE WILL CONTINUE OVER A LONG
PERIOD OF TIME." 

IN THE LIGHT OF THESE FINDINGS THE LOWER COURT CONCLUDED THAT THE
ORDER WAS NOT INTENDED TO PREVENT WASTE ATTRIBUTABLE TO PLAINTIFFS; AND
THAT IT WAS NOT INTENDED TO ADJUST CORRELATIVE RIGHTS IN THE COMMON
RESERVOIR FOR THE PURPOSE OF AVERTING UNJUST DRAINAGE FROM THE RESERVES
OF THOSE WELLS LACKING PIPE LINE CONNECTIONS.  ON THE OTHER HAND, THE
COURT CONCLUDED THAT THE PRORATION ORDERED, WITH ITS DRASTIC LIMITATION
OF OUTPUT FROM WELLS NOW CONNECTED TO PIPE LINES, WILL OBVIOUSLY NOT
PROTECT THOSE WELLS AGAINST UNDUE DRAINAGE TO OTHER PARTS OF THE FIELD,
BUT WILL DEPRIVE THEIR OWNERS OF THE PROTECTION WHICH FULLER PRODUCTION
WOULD OFFER.  THESE FINDINGS ARE ADEQUATELY SUPPORTED BY THE EVIDENCE. 

ON THE OTHER HAND, THE ASSERTION OF THE DEFENDANTS THAT THE ORDER
WILL, BY REQUIRING A UNIFORM AND RATEABLE SYSTEM OF PRODUCTION BY ALL
THE WELLS, RESULT IN THE ULTIMATE RECOVERY OF A LARGER AMOUNT OF GAS
THAN WOULD OTHERWISE BE PRODUCED; AND, LIKEWISE, THE ASSERTION THAT THE
PLAINTIFFS, BY THEIR PRESENT PRODUCTION, ARE DEPRIVING, OR THREATEN TO
DEPRIVE, NON-PIPE-LINE OWNERS OF THEIR OPPORTUNITY TO SHARE RATEABLY IN
THE GAS IN THE COMMON RESERVOIR, ARE NOT SUSTAINED.  BY THE ASSIGNMENT
OF ERRORS IN THIS COURT, DEFENDANTS CHALLENGED THE CORRECTNESS OF MANY
OF THE FINDINGS.  BUT WE ARE OF OPINION THAT, SO FAR AS HERE MATERIAL,
ALL THEIR CONTENTIONS, AND ALSO THE FINDINGS OF THE RAILROAD COMMISSION
IN ITS ORDER OF DECEMBER 10, PROPHESYING "WASTE" IF THE PRORATION
ORDERED IS NOT CARRIED OUT, ARE UNFOUNDED. 

THIRD.  THE DEFENDANTS CONTEND, APPARENTLY, THAT HOUSE BILL 266
SHOULD BE CONSTRUED AS AUTHORIZING THE COMMISSION TO REDUCE THE
PRODUCTION OF THE PLAINTIFFS AND OF OTHER PIPE LINE OWNERS, EVEN IF THE
SOLE PURPOSE OF DOING SO IS TO FURNISH A MARKET FOR THE SWEET GAS OF
THOSE WELLS NOW WITHOUT PIPE LINE CONNECTIONS.  ON THE OTHER HAND, THE
PLAINTIFFS INSIST THAT HOUSE BILL 266 SHOULD BE CONSTRUED AS
AUTHORIZING THE PRORATION OF PRODUCTION ONLY IN CONNECTION WITH, AND AS
PART OF, WASTE PREVENTION; AND THAT SINCE THEIR OPERATIONS DO NOT
INVOLVE, OR THREATEN WASTE, THE ORDER WAS WITHOUT STATUTORY AUTHORITY. 
THAT CONTENTION THE LOWER COURT SUSTAINED.  IT DID SO, ON THE GROUND
THAT TO AUTHORIZE THE RESTRICTION OF NON-WASTEFUL PRODUCTION BY THE
PIPE LINE WELL OWNERS SOLELY FOR THE PURPOSE OF COMPELLING THEM TO
FURNISH OTHER WELLS WITH A MARKET, WOULD BE A CHANGE OF THE COMMON LAW
OF TEXAS SO RADICAL THAT, IF THE LEGISLATURE HAD SO INTENDED, IT WOULD
HAVE EXPRESSED THAT INTENTION IN LANGUAGE MORE EXPLICIT THAN ANY USED
IN THE ACT.  MOREOVER, THE COURT POINTED OUT THAT, UNDER THE
ESTABLISHED RULE OF CONSTRUCTION, THE INTERPRETATION URGED BY
DEFENDANTS SHOULD BE AVOIDED BECAUSE THE STATUTE SO CONSTRUED WOULD BE
OF DOUBTFUL VALIDITY.  FN20 

WE ARE ALWAYS RELUCTANT TO PASS UPON A SERIOUSLY CONTROVERTED
QUESTION OF THE MEANING OF A STATE STATUTE, BECAUSE OUR DECISION,
ALTHOUGH DISPOSING OF THE PARTICULAR CASE, CANNOT SETTLE THE ISSUE OF
THE PROPER CONSTRUCTION OF THE STATUTE.  FN21  NO COURT OF THE STATE
HAS CONSTRUED THE ACT.  THE DEFENDANTS MIGHT, PERHAPS, HAVE SECURED ITS
CONSTRUCTION BY THE STATE COURT.  FOR THE AMENDMENT OF SEC. 266 OF THE
JUDICIAL CODE MADE IN 1913, PROVIDES THAT UPON THE INSTITUTION OF AN
APPROPRIATE SUIT IN A STATE COURT, A STAY MAY BE HAD OF THE PROCEEDINGS
IN THE FEDERAL COURT TO AWAIT ADJUDICATION BY THE STATE COURT.  FN22
BUT NO SUIT IN A STATE COURT WAS INSTITUTED BY THE DEFENDANTS TO THAT
END.  WHEN NOT INSTRUCTED BY SOME DECISION OF A STATE COURT, WE ARE
DISPOSED, IN EXERCISING APPELLATE JURISDICTION, TO ACCEPT THE
CONSTRUCTION GIVEN BY THE LOWER FEDERAL COURT TO A STATUTE OF THE
STATE, PARTICULARLY WHEN THAT COURT IS COMPOSED, AS IN THIS INSTANCE,
WHOLLY OF CITIZENS OF THE STATE, FAMILIAR WITH THE HISTORY OF THE
STATUTE, THE LOCAL CONDITIONS TO WHICH IT APPLIES, AND THE CHARACTER OF
THE STATE'S LAWS.  FN23  BUT, BEING UNDER DUTY TO MAKE AN INDEPENDENT
STUDY OF THE QUESTION, WE HAVE DONE SO.  FN24  THAT STUDY LEAVES US IN
GRAVE DOUBT WHETHER THE LOWER COURT HAS CORRECTLY INTERPRETED THE
INTENTION OF THE LAWMAKERS.  FN25  ON THE OTHER HAND, WE ARE CLEARLY OF
OPINION THAT IF THE ACT WERE CONSTRUED AS THE DEFENDANTS CONTEND IT
SHOULD BE, AND AS THE COMMISSION HAS APPLIED IT, IT WOULD VIOLATE THE
FEDERAL CONSTITUTION.  AS A GENERAL RULE IT IS NO LESS TRUE WITH
REFERENCE TO STATE THAN TO FEDERAL LEGISLATION THAT THIS COURT WILL NOT
DECIDE AN ISSUE OF CONSTITUTIONALITY IF THE CASE MAY JUSTLY AND
REASONABLY BE DECIDED UPON A CONSTRUCTION OF THE STATUTE UNDER WHICH
THE ACT IS CLEARLY CONSTITUTIONAL.  COMPARE BRATTON V. CHANDLER, 260
U.S. 110, 114; SOUTH UTAH MINES & SMELTERS V. BEAVER COUNTY, 262 U.S.
325, 331; HOPKINS V. SOUTHERN CALIFORNIA TELEPHONE CO., 275 U.S. 393,
403.  BUT WHERE ONE PARTY'S CASE DEPENDS UPON A CONSTRUCTION OF A STATE
STATUTE UNDER WHICH IT PLAINLY MUST BE HELD TO VIOLATE THE FEDERAL
CONSTITUTION, AND WHERE THE PROPER CONSTRUCTION OF THE STATUTE IS A
MATTER OF GRAVE DOUBT, THIS COURT WILL REST ITS DECISION ON THE
CONSTITUTION, AND WILL NOT UNDERTAKE TO DECIDE THE QUESTION OF
CONSTRUCTION AS TO WHICH IT LACKS THE POWER TO GIVE A DEFINITIVE
ANSWER.  COMPARE PACIFIC TELEPHONE & TELEGRAPH CO. V. KUYKENDALL, 265
U.S. 196, 204; MICHIGAN PUBLIC UTILITIES COMM'N V. DUKE, 266 U.S. 570,
578; STERLING V. CONSTANTIN, 287 U.S. 378, 396.  WE, THEREFORE, ACCEPT,
FOR THE PURPOSES OF OUR DECISION, THE DEFENDANTS' CONSTRUCTION; AND
PASS TO THE DISCUSSION OF CONSTITUTIONAL QUESTIONS. 

FOURTH.  EITHER PRODUCTION GREATER THAN THE DEMAND OR USE FOR AN
INFERIOR PURPOSE WOULD NECESSARILY INVOLVE OVERGROUND WASTE OF GAS. 
THE MANNER, PLACE, OR EXTENT OF PRODUCTION MIGHT LEAD TO UNDERGROUND
WASTE.  WE ASSUME THAT THE PROHIBITION OF ANY WASTEFUL CONDUCT, WHETHER
PRIMARILY IN BEHALF OF OTHER OWNERS OF GAS IN THE COMMON RESERVOIR, OR
BECAUSE OF THE PUBLIC INTERESTS INVOLVED, IS CONSISTENT WITH THE
CONSTITUTION OF TEXAS AND THAT OF THE UNITED STATES, AND THAT TO
PREVENT WASTE PRODUCTION MAY BE PRORATED.  FN26  WE ASSUME, ALSO, THAT
THE STATE MAY CONSTITUTIONALLY PRORATE PRODUCTION IN ORDER TO PREVENT
UNDUE DRAINAGE OF GAS FROM THE RESERVES OF WELL OWNERS LACKING PIPE
LINE CONNECTIONS.  FN27  IF PRORATION WERE LAWFULLY APPLIED FOR ANY
SUCH PURPOSES, THE FACT THAT THEREBY OTHER PRIVATE PERSONS WOULD
INCIDENTALLY AND GRATUITOUSLY OBTAIN IMPORTANT BENEFITS WOULD PRESENT
NO CONSTITUTIONAL OBSTACLE.  AND THE FACT THAT PLAINTIFFS' GAS IS TO BE
SOLD IN INTERSTATE COMMERCE WOULD NOT PRECLUDE SUCH EXERCISE OF THE
STATE'S POWER.  COMPARE CHAMPLIN REFINING CO. V. CORPORATION
COMMISSION, 286 U.S. 210, 235. 

BUT THE SOLE PURPOSE OF THE LIMITATION WHICH THE ORDER IMPOSES UPON
THE PLAINTIFFS' PRODUCTION IS TO COMPEL THOSE WHO MAY LEGALLY PRODUCE,
BECAUSE THEY HAVE MARKET OUTLETS FOR PERMITTED USES, TO PURCHASE GAS
FROM POTENTIAL PRODUCERS WHOM THE STATUTE PROHIBITS FROM PRODUCING
BECAUSE THEY LACK SUCH A MARKET FOR THEIR POSSIBLE PRODUCT. 
PLAINTIFFS' OPERATIONS ARE NEITHER CAUSING NOR THREATENING ANY
OVERGROUND OR UNDERGROUND WASTE.  EVERY WELL OWNER IN THE FIELD IS FREE
TO PRODUCE THE GAS, PROVIDED HE DOES NOT DO SO WASTEFULLY.  HE IS
LEGALLY AND, SO FAR AS APPEARS, PHYSICALLY FREE TO PROVIDE HIMSELF WITH
A MARKET AND WITH TRANSPORTATION AND MARKETING FACILITIES.  THERE IS NO
BASIS FOR A CLAIM THAT HIS RIGHT, OR OPPORTUNITY, WILL BE INTERFERED
WITH BY A DISPROPORTIONATE TAKING BY ANY ONE OF THOSE WHO MAY LEGALLY
PRODUCE. 

THE LOWER COURT FOUND SPECIFICALLY: 

"THE TERMS AND PROVISIONS OF THE ORDERS ATTACKED, THE NECESSARY
OPERATION AND EFFECT OF SUCH ORDERS, THE HISTORY OF THE FIELD AND OTHER
PERTINENT FACTS AS DISCLOSED BY THIS RECORD CONCLUSIVELY ESTABLISH THAT
THE PURPOSE OF THE COMMISSION UNDERLYING THE ORDERS WAS, UPON A THEORY
OF PROTECTING CORRELATIVE RIGHTS TO COERCE COMPLAINANT AND OTHER
(OTHERS) SIMILARLY SITUATED TO BUY GAS FROM, AND THUS TO SHARE THEIR
PRIVATE MARKETING CONTRACTS AND COMMITMENTS AND THE USE OF THEIR PIPE
LINES AND OTHER FACILITIES FOR TRANSMITTING THEIR GAS TO MARKET WITH,
THE OWNERS OF WELLS NOT NOW CONNECTED TO PIPE LINES, WHO HAVE NOT
CONTRIBUTED IN MONEY, SERVICES, NEGOTIATIONS, SKILL, FORETHOUGHT OR
OTHERWISE TO THE DEVELOPMENT OF SUCH MARKETS AND THE CONSTRUCTION OF
SUCH PIPE LINES AND OTHER FACILITIES.  IN SHORT TO COMPEL COMPLAINANTS
TO AFFORD MARKETS TO THOSE HAVING NONE. 

"THE NECESSARY OPERATION AND EFFECT OF SUCH ORDERS IS TO TAKE FROM
COMPLAINANT AND OTHERS SIMILARLY SITUATED SUBSTANTIAL AND VALUABLE
INTERESTS IN THEIR PRIVATE MARKETING CONTRACTS AND COMMITMENTS AND IN
THE USE OF THEIR PIPE LINES AND OTHER FACILITIES FOR TRANSMITTING THEIR
GAS TO THEIR MARKETS, WITHOUT COMPENSATION, AND TO CONFER SAME UPON THE
OWNERS OF THE APPROXIMATELY 180 SWEET GAS WELLS IN THE FIELD NOT
CONNECTED TO PIPE LINES." 

THE USE OF THE PIPE LINE OWNER'S WELLS AND RESERVES IS CURTAILED
SOLELY FOR THE BENEFIT OF OTHER PRIVATE WELL OWNERS.  THE PIPE LINE
OWNER, A PRIVATE PERSON, IS, IN EFFECT, ORDERED TO PAY MONEY TO ANOTHER
PRIVATE WELL OWNER FOR THE PURCHASE OF GAS WHICH THERE IS NO WISH TO
BUY.  FN28 MOREOVER, HE IS THUS PREVENTED FROM PROTECTING HIMSELF, TO
THE EXTENT THAT HE IS ABLE TO MARKET HIS GAS, AGAINST THE LOSSES WHICH
THE COURT BELOW FINDS ARE OCCURRING AND WILL CONTINUE TO OCCUR DUE TO
DRAINAGE FROM THE HIGH PRESSURE AREAS, WHEREIN PLAINTIFFS' WELLS ARE
LOCATED, TO THE EXISTING LOW PRESSURE AREAS, IN WHICH ARE LOCATED THE
MAJORITY OF THE WELLS NOT CONNECTED TO PIPE LINES.  THERE IS HERE NO
TAKING FOR THE PUBLIC BENEFIT; NOR IS PAYMENT OF COMPENSATION
PROVIDED.  PLAINTIFFS' PIPE LINES ARE PRIVATE PROPERTY.  SO FAR AS
APPEARS, THEY ARE CONSTRUCTED ON PRIVATE LANDS.  THERE IS NO SUGGESTION
THAT ANY OF THEM IS A COMMON CARRIER OF GAS.  THE PURPOSE OF THE OWNERS
IN CONSTRUCTING THE PIPE LINES WAS FOR THE TRANSPORT OF GAS ONLY FROM
THEIR OWN LEASES, AND SUCH HAS BEEN THEIR CONSISTENT POLICY.  UNLIKE
THE PROPERTY INVOLVED IN THE ASSIGNED CAR CASES, 274 U.S. 564, THE PIPE
LINES ARE NOT USED IN CONNECTION WITH THE OPERATION OF ANY PUBLIC
UTILITY IN TEXAS.  FN29 

THE PURPOSE OF THIS ORDER IS THE SAME AS THAT WHICH THE LEGISLATURE
SOUGHT TO ACHIEVE BY THE "COMMON PURCHASER ACT," OF AUGUST 12, 1931,
HELD UNCONSTITUTIONAL IN TEXOMA NATURAL GAS CO. V. RAILROAD COMMISSION,
59 F.(2D) 750.  THE EFFECT UPON THE PROPERTY OF THE PIPE LINE OWNERS OF
THE TWO STATUTES AND THE ORDERS ISSUED THEREUNDER IS, LIKEWISE, THE
SAME.  THERE IS A DIFFERENCE IN THE MEANS EMPLOYED; BUT THE DIFFERENCE
IS NOT OF LEGAL SIGNIFICANCE.  THE 1931 ACT ATTEMPTED TO COMPEL THE
PURCHASE BY FRANKLY COMMANDING IT, UNDER SANCTIONS CRIMINAL AND CIVIL. 
THE 1935 ACT OPERATES BY INDIRECTION.  ITS COMMAND IS NO LESS
COMPELLING; ITS PENALTIES NOT SIGNIFICANTLY DIFFERENT.  THE ORDER
DISABLES THE PLAINTIFFS FROM PERFORMING THEIR CONTRACTS EXCEPT BY MEANS
OF PURCHASES.  RESORT TO THOSE MEANS NECESSARILY RESULTS IN DEPRIVING
THE PLAINTIFFS OF PROPERTY.  UNDER EACH STATUTE, IF OBEYED, THE STATE
TAKES FROM THE PIPE LINE OWNER THE MONEY WITH WHICH THE PURCHASE IS
MADE, THE MONEY LOST THROUGH CURTAILED USE OF PROPERTIES DEVELOPED AT
LARGE EXPENSE, THE MONEY LOST BECAUSE OF THE DRAINAGE AWAY FROM HIS
LAND OF THE GAS WHICH HE IS FORBIDDEN TO PRODUCE FOR HIMSELF, BUT MUST
BUY FROM THOSE TOWARDS WHOSE LANDS IT MIGRATES. 

OUR LAW REPORTS PRESENT NO MORE GLARING INSTANCE OF THE TAKING OF ONE
MAN'S PROPERTY AND GIVING IT TO ANOTHER.  IN MISSOURI PACIFIC RY CO. V.
NEBRASKA, 164 U.S. 403; MISSOURI PACIFIC RY. CO. V. NEBRASKA, 217 U.S.
196; FN30  GREAT NORTHERN RY. CO. V. MINNESOTA, 238 U.S. 340; GREAT
NORTHERN RY. CO. V. CAHILL, 253 U.S. 71; DELAWARE, L. & W.R. CO. V.
MORRISTOWN, 276 U.S. 182; AND CHICAGO, ST. P., M. & O. RY. CO. V.
HOLMBERG, 282 U.S. 162, EXPENDITURES DIRECTED TO BE MADE FOR THE
BENEFIT OF A PRIVATE PERSON WERE HELD INVALID, ALTHOUGH THE PARTY
ORDERED TO PAY WAS A COMMON CARRIER.  IN LOAN ASSOCIATION V. TOPEKA, 20
WALL.  655, AND COLE V. LA GRANGE, 113 U.S. 1, THE PAYMENTS ORDERED FOR
THE BENEFIT OF A PRIVATE PERSON WERE DECLARED INVALID, ALTHOUGH THE
MONEY WAS TO BE RAISED BY GENERAL TAXATION.  IN MYLES SALT CO. V. BOARD
OF COMMISSIONERS, 239 U.S. 478, THE EXACTION WAS HELD UNLAWFUL, THOUGH
IMPOSED UNDER THE GUISE OF AN ASSESSMENT FOR ALLEGED BETTERMENTS. 
COMPARE GEORGIA RAILWAY & ELECTRIC CO. V. DECATUR, 295 U.S. 165.  AND
THIS COURT HAS MANY TIMES WARNED THAT ONE PERSON'S PROPERTY MAY NOT BE
TAKEN FOR THE BENEFIT OF ANOTHER PRIVATE PERSON WITHOUT A JUSTIFYING
PUBLIC PURPOSE, EVEN THOUGH COMPENSATION BE PAID.  SEE HAIRSTON V.
DANVILLE & WESTERN RY. CO., 208 U.S. 598, 605, 606; RINDGE CO. V.
COUNTY OF LOS ANGELES, 262 U.S. 700, 705.  COMPARE CINCINNATI V.
VESTER, 281 U.S. 439, 446, 449. 

FIFTH.  THE DEFENDANTS CONTEND THAT THE SITUATION IN THE PANHANDLE
FIELD PRESENTED A CONFLICT OF PRIVATE INTERESTS SO SERIOUS AS TO BECOME
A MATTER OF PUBLIC CONCERN; AND THAT THE LEGISLATURE HAS POWER TO ADOPT
MEASURES TO PREVENT THE HARMFUL DISCORD.  THEY INSIST, MOREOVER, THAT
THE PLAINTIFFS, HAVING INVOKED THE LEGISLATIVE ACTION TO STOP THE
WASTEFUL AND DISPROPORTIONATE DRAWING OF SWEET GAS BY OTHERS - A
PROHIBITION OF WHICH THEY ARE NOW REAPING THE BENEFITS - MAY NOT DENY
THE LEGISLATIVE POWER TO AUTHORIZE THE INCIDENTAL LIMITATIONS OF ITS
OWN PRODUCTION; SINCE THE LEGISLATURE WOULD NOT HAVE PROHIBITED THE
WASTE, OR INFERIOR USES OF THE GAS, WITHOUT PROVIDING FOR ITS PURCHASE
BY THE PIPE LINE COMPANIES.  WHETHER THE LATTER ASSERTION IS TRUE IN
FACT, WE DO NOT KNOW.  BUT IT IS CLEAR THAT THERE IS NO BASIS IN LAW
FOR THE ARGUMENT, SINCE THERE IS NO CLAIM THAT PLAINTIFFS EVER
CONSENTED TO INSERTING ANY SUCH PROVISION IN THE ACT.  INDEED, THEY
INSIST, AS A MATTER OF CONSTRUCTION, THAT THE LEGISLATURE HAS NOT DONE
SO.  AND, HOUSE BILL 266 IS SO MUCH MORE DRASTIC A STATUTE THAN THE
RESTRICTIONS UPON INFERIOR USES OF GAS WHICH WERE APPARENTLY THE OBJECT
OF PLAINTIFFS' EFFORTS BEFORE THE LEGISLATURE, THAT IN THEIR PRESENT
SITUATION PLAINTIFFS CANNOT FAIRLY BE SAID TO BE RECEIVING THE BENEFITS
AND EVADING THE BURDENS OF A MEASURE WHICH THEY INITIATED.  MOREOVER,
PLAINTIFFS DO NOT ASSERT RIGHTS UNDER THE STATUTE WHICH THEY ASSAIL. 
THEY HAVE NOT TAKEN, AND ARE NOT OBLIGED TO TAKE, ANY AFFIRMATIVE STEPS
THEREUNDER TO OBTAIN WHATEVER BENEFITS MAY ACCRUE TO THEM BECAUSE OF
THE RESTRICTIONS IMPOSED ON PRODUCTION FOR INFERIOR USES.  COMPARE
DANIELS V. TEARNEY, 102 U.S. 415, 421; WALL V. PARROT SILVER & COPPER
CO., 244 U.S. 407, 411; BOOTH FISHERIES CO. V. INDUSTRIAL COMMISSION,
271 U.S. 208, 211.  THOSE BENEFITS RESULT INCIDENTALLY FROM THE
ENACTMENT OF OTHER PROVISIONS OF THE ACT, THE CONSTITUTIONALITY OF
WHICH IS NOT QUESTIONED, AND WHICH SEEM CLEARLY SEPARABLE FROM THE
257 U.S. 223; UNITED FUEL GAS CO. V. RAILROAD COMMISSION, 278 U.S. 300,
308.  FN31  AFFIRMED. 

FN1  THE COMPLAINANTS' ORIGINAL BILLS CHALLENGED EARLIER ORDERS
ISSUED BY THE RAILROAD COMMISSION UNDER THE ACT HERE IN QUESTION,
NOTABLY THE ORDERS OF AUGUST 28, AND SEPTEMBER 25, 1935.  THESE ORDERS
WERE THE SUBJECTS OF TEMPORARY INJUNCTIONS GRANTED IN TEXAS PANHANDLE
GAS CO. V. THOMPSON, 12 F.SUPP.  462.  UPON THE ISSUANCE OF THE ORDER
OF DECEMBER 10, 1935, COMPLAINANTS AMENDED THEIR BILLS TO MAKE THAT
ORDER AND ITS SUPPLEMENTS THE OBJECT OF THEIR ATTACK. 

FN2  COMPARE NOTE 1, SUPRA. 

FN3  ONLY SWEET GAS IS FIT FOR LIGHTING AND HEATING.  SOUR GAS IS
THAT CONTAMINATED BY SULPHUR COMPOUNDS.  IT IS NOW USED IN THIS FIELD
PRINCIPALLY IN THE MANUFACTURE OF CARBON BLACK.  WHEN THE ACT WAS
PASSED, PLANTS SUPPLYING 70% OF THE CARBON BLACK MANUFACTURED IN THE
UNITED STATES WERE OPERATING IN THIS FIELD. 

FN4  THE SMALL MARKET FOR SWEET GAS WITHIN THE FIELD IS LIMITED TO
FUEL FOR THE DRILLING OF WELLS AND THE OPERATION OF INDUSTRIES INCIDENT
TO THE OIL AND GAS BUSINESS; TO SMALL PIPE LINES SUPPLYING GAS TO
COMMUNITIES NEAR THE FIELD; AND TO PURCHASES BY TWO COMPANIES WITH PIPE
LINES TO DISTANT CITIES.  THESE HAVE MADE 30 NEW CONNECTIONS WITH WELLS
OF OTHERS AND ARE TAKING RATEABLY FROM THESE WELLS. 

FN5  FOR ADMINISTRATIVE PURPOSES THE TERRITORY IS DIVIDED INTO THE
EAST PANHANDLE AND THE WEST PANHANDLE ZONES.  THE WEST ZONE ALONE
CONTAINS ANY SOUR GAS AREA.  THE SWEET GAS AREA OF THE WEST PANHANDLE
FIELD EMBRACES 723,000 ACRES.  IN IT THERE ARE 517 WELLS, 180 OF WHICH
DO NOT HAVE AN OUTLET FOR LIGHT AND FUEL PURPOSES.  THE SWEET GAS AREA
OF THE EAST PANHANDLE FIELD EMBRACES 181,000 ACRES.  IN IT THERE ARE
322 WELLS, OF WHICH 121 DO NOT HAVE AN OUTLET FOR LIGHT AND FUEL
PURPOSES.  GAS FROM THE PANHANDLE FIELD IS SUPPLIED FOR DOMESTIC AND
INDUSTRIAL LIGHT AND FUEL PURPOSES TO APPROXIMATELY 10,000,000 PERSONS
IN THE UNITED STATES. 

FN6  THE ONLY EXCEPTION TO THIS IS IN THE CASE OF THE FEW INDEPENDENT
WELLS WITH WHICH TWO OF THE PIPE LINE COMPANIES HAVE MADE CONNECTIONS. 
SEE NOTE 4, SUPRA. 

FN7  THUS AT THE TIME OF THE HEARING BELOW, TEXOMA NATURAL GAS CO.
WAS "PRODUCING" ITS WELLS AT THE RATE OF ABOUT 10 PER CENT OF THEIR
DAILY POTENTIAL CAPACITY, AND THE AVERAGE THROUGHOUT THE YEAR, IT WAS
FOUND, HAD BEEN AND WOULD BE SUBSTANTIALLY LESS THAN THIS FIGURE.  THE
HIGHEST PERCENTAGE OF THE DAILY POTENTIAL EVER TAKEN OVER A PERIOD OF
ONE MONTH FOR ALL OF THE WELLS OF CONSOLIDATED GAS UTILITIES
CORPORATION HAS BEEN 6.53 PER CENT.  THE WELLS OF OTHER PIPE LINE
OWNERS IN THESE FIELDS HAVE LIKEWISE BEEN "PRODUCED" AT LOW PERCENTAGES
OF CAPACITY. 

FN8  (A)  CHAPTER 28, ACTS 1931, FORTY-SECOND LEGISLATURE, FIRST
CALLED SESSION, KNOWN AS THE COMMON PURCHASER ACT, WAS CONSTRUED AND
APPLIED BY THE RAILROAD COMMISSION AS REQUIRING PRIVATE PIPE LINE
COMPANIES ENGAGED THERETOFORE ONLY IN PRODUCING AND TRANSPORTING GAS
FROM THEIR OWN LEASES TO PURCHASE WITHOUT DISCRIMINATION, UNDER
REGULATIONS OF THE COMMISSION, QUANTITIES OF GAS OFFERED THEM BY
PRODUCERS IN THE FIELD LACKING THEIR OWN PIPE LINES.  THE ACT WAS HELD
UNCONSTITUTIONAL AS IN VIOLATION OF THE DUE PROCESS AND COMMERCE
CLAUSES OF THE FEDERAL CONSTITUTION, AND ENFORCEMENT OF THE ORDERS WAS
ENJOINED, IN TEXOMA NATURAL GAS CO. V. RAILROAD COMMISSION, 59 F.(2D)
750. 

(B)  PURPORTING TO ACT UNDER THE GENERAL CONSERVATION LAWS OF THE
STATE, AS AMENDED BY CHAPTER 26, ACTS 1931, FORTY-SECOND LEGISLATURE,
FIRST CALLED SESSION, THE RAILROAD COMMISSION SUBSEQUENTLY ISSUED
ORDERS COMPLETELY CLOSING DOWN SOME PORTIONS OF THE PANHANDLE FIELD,
AND LIMITING PRODUCTION FROM PIPE LINE COMPANIES' WELLS IN OTHER
PORTIONS.  ENFORCEMENT OF THESE ORDERS WAS ENJOINED ON THE GROUND THAT
THE COMMISSION'S ACTION WAS ULTRA VIRES, IN TEXOMA NATURAL GAS CO. V.
TERRELL, 2 F.SUPP.  168. 

(C)  BY CHAPTER 2, ACTS 1932, FORTY-SECOND LEGISLATURE, FOURTH CALLED
SESSION, THE RAILROAD COMMISSION WAS MEANTIME AUTHORIZED, WHENEVER THE
FULL PRODUCTION FROM WELLS PRODUCING GAS FROM A COMMON RESERVOIR SHOULD
EXCEED REASONABLE MARKET DEMAND, TO LIMIT PRODUCTION TO SUCH DEMAND AND
ALLOCATE THE ALLOWABLE PRODUCTION.  ORDERS PURPORTING TO BE ISSUED
UNDER THE AUTHORITY OF THIS ACT WERE ENJOINED IN CANADIAN RIVER GAS CO.
V. TERRELL, 4 F.SUPP.  222, ON THE GROUND THAT THEY WERE ULTRA VIRES
BECAUSE THE STATUTE AUTHORIZED REGULATION ONLY TO PREVENT WASTE, AND
THE COURT CONCLUDED THAT THE ORDERS DID NOT BEAR ANY REASONABLE
RELATION TO THAT END. 

(D)  THEN FOLLOWED THE ENACTMENT OF THE STATUTE NOW UNDER
CONSIDERATION. 

FN9  AS AMENDED BY CHAPTER 88, ACTS 1933, FORTY-THIRD LEGISLATURE,
FIRST CALLED SESSION.  COMPARE F. C. HENDERSON, INC. V. RAILROAD
COMMISSION, 56 F.(2D) 218; SNEED V. PHILLIPS PETROLEUM CO., 76 F.(2D)
785.    FN10  ACCORDING TO EVIDENCE PRESENTED BY THE STATE, IN JULY,
1935, BEFORE THE PROHIBITIONS OF HOUSE BILL 266 BECAME EFFECTIVE
AGAINST USES THEREIN DECLARED WASTEFUL, THERE WERE IN THE WEST
PANHANDLE FIELD 41 STRIPPING PLANTS PRODUCING NATURAL GASOLINE,
CONSUMING DAILY 1,847,339 M.C.F. SWEET GAS, FROM WHICH THE GASOLINE
PRODUCTION SAVED ONLY 3 PER CENT OF THE FUEL VALUE OF THE GAS IN ITS
ORIGINAL STATE.  BETWEEN FEBRUARY 1, 1933, AND AUGUST 1, 1935, 709
BILLION CUBIC FEET OF GAS WERE SAID TO HAVE BEEN BLOWN INTO THE AIR
AFTER THE NATURAL GASOLINE CONTENT HAD BEEN EXTRACTED.    FN11
"SECTION 1.  DECLARATION OF POLICY:  IN RECOGNITION OF PAST, PRESENT,
AND IMMINENT EVILS OCCURRING IN THE PRODUCTION AND USE OF NATUAL
(NATURAL) GAS, AS A RESULT OF WASTE IN THE PRODUCTION AND USE THEREOF
IN THE ABSENCE OF CORRELATIVE OPPORTUNITIES OF OWNERS OF GAS IN A
COMMON RESERVOIR TO PRODUCE AND USE THE SAME, THIS LAW IS ENACTED FOR
THE PROTECTION OF PUBLIC AND PRIVATE INTERESTS AGAINST SUCH EVILS BY
PROHIBITING WASTE AND COMPELLING RATABLE PRODUCTION." 

"SEC. 11.  THE COMMISSION SHALL EXERCISE THE AUTHORITY TO ACCOMPLISH
THE PURPOSE DESIGNATED UNDER ITEM (A) OF SECTION 10 WHEN THE PRESENCE
OR IMMINENCE OF WASTE IS SUPPORTED BY A FINDING BASED UPON THE EVIDENCE
INTRODUCED AT A HEARING TO BE HELD AS HEREIN PROVIDED. 

"THE COMMISSION SHALL EXERCISE THE AUTHORITY TO ACCOMPLISH THE
PURPOSE DESIGNATED UNDER ITEM (B) OF SECTION 10 WHEN EVIDENCE
INTRODUCED AT A HEARING TO BE HELD AS HEREIN PROVIDED WILL SUPPORT A
FINDING MADE BY THE COMMISSION THAT THE AGGREGATE LAWFUL VOLUME OF THE
OPEN FLOW OR DAILY POTENTIAL CAPACITY TO PRODUCE OF ALL GAS WELLS
LOCATED IN A COMMON RESERVOIR, IS IN EXCESS OF THE DAILY REASONABLE
MARKET DEMAND FOR GAS FROM GAS WELLS THAT MAY BE PRODUCED FROM SUCH
COMMON RESERVOIR, TO BE UTILIZED AS PERMITTED IN THIS ARTICLE. 

"SEC. 12.  ON OR BEFORE THE TWENTIETH (20TH) DAY OF EACH CALENDAR
MONTH THE COMMISSION SHALL HOLD A HEARING  ...  FOR THE PURPOSE OF
DETERMINING THE AGGREGATE DAILY CAPACITY TO PRODUCE OF ALL GAS WELLS IN
A COMMON RESERVOIR, AND AS NEARLY AS POSSIBLE, THE DAILY VOLUME OF GAS
FROM EACH COMMON RESERVOIR THAT WILL BE PRODUCED FROM GAS WELLS DURING
THE FOLLOWING MONTH TO BE UTILIZED AS PERMITTED IN THIS ARTICLE.  UPON
SUCH DETERMINATION, THE COMMISSION, BASED UPON EVIDENCE INTRODUCED AT
SUCH HEARING, SHALL ALLOCATE TO EACH GAS WELL PRODUCING GAS FROM SUCH
COMMON RESERVOIR A PERCENTAGE OF THE DAILY PRODUCTIVE CAPACITY OF EACH
WELL WHICH MAY BE PRODUCED DAILY DURING THE FOLLOWING MONTH FROM EACH
GAS WELL PRODUCING GAS FROM SUCH COMMON RESERVOIR.  SUCH PERCENTAGE OF
THE DAILY PRODUCING CAPACITY OF EACH WELL SHALL BE REGARDED AS ITS
DAILY ALLOWABLE PRODUCTION OF SUCH DAILY VOLUME REQUIRED FOR
UTILIZATION FROM SUCH COMMON RESERVOIR.... 

"SEC. 14.  IT SHALL BE THE DUTY OF THE COMMISSION, AFTER NOTICE AND
HEARING, TO ASCERTAIN AND DETERMINE THE REASONABLE MARKET DEMAND FOR
GAS FROM GAS WELLS TO BE USED FOR LIGHT AND FUEL PURPOSES AND FOR ALL
OTHER LAWFUL PURPOSES TO WHICH SWEET GAS MAY BE PUT UNDER THE TERMS OF
THIS ARTICLE AND BY PROPER ORDER TO RESTRICT THE PRODUCTION OF GAS FROM
ALL GAS WELLS IN SAID FIELD PRODUCING SUCH GAS TO AN AMOUNT EQUAL TO
MARKET DEMAND OR TO AN AMOUNT WHICH MAY BE PRODUCED WITHOUT WASTE AS
OTHERWISE DEFINED; PROVIDED, HOWEVER, THE PRODUCTION OF SUCH GAS SHALL
IN ANY EVENT BE RESTRICTED TO THE AMOUNT OF THE REASONABLE MARKET
DEMAND THEREFOR.  IN SUCH ORDER THE COMMISSION SHALL ALLOCATE,
DISTRIBUTE OR APPORTION THE TOTAL ALLOWABLE PRODUCTION FROM SUCH FIELD
AMONG THE VARIOUS GAS WELLS AFFECTED BY THE ORDER ON A REASONABLE
BASIS, AND AS PROVIDED IN SECTION 13.... 

"SEC. 16.  IT SHALL BE UNLAWFUL FOR ANY PERSON TO PRODUCE GAS FROM A
GAS WELL AS HEREIN DEFINED IN EXCESS OF THE DAILY ALLOWABLE PRODUCTION
IN SUCH SCHEDULE OF ALLOWABLE PRODUCTION.... 

"SEC. 20.  IN THE EVENT THE COMMISSION FINDS THAT THE OWNER OF ANY
GAS WELL HAS FAILED OR REFUSED TO UTILIZE OR SELL THE ALLOWABLE
PRODUCTION FROM HIS WELL WHEN SUCH OWNER HAS BEEN OFFERED A CONNECTION
OR MARKET FOR SUCH GAS AT A REASONABLE PRICE, SUCH WELL SHALL BE
EXCLUDED FROM CONSIDERATION IN ALLOCATING THE DAILY ALLOWABLE
PRODUCTION FROM THE RESERVOIR OR ZONE IN WHICH SAME IS LOCATED UNTIL
THE OWNER THEREOF SIGNIFIES TO THE COMMISSION HIS DESIRE TO UTILIZE OR
SELL SUCH GAS.  IN ALL OTHER CASES ALL GAS WELLS SHALL BE TAKEN INTO
ACCOUNT IN ALLOCATING THE ALLOWABLE PRODUCTION AMONG WELLS PRODUCING
THE SAME TYPE OF GAS." 

FN12  THE TEXOMA NATURAL GAS COMPANY (WITH AN AFFILIATE) HAS, AT A
COST OF ABOUT $72,000,000, ACQUIRED 200,000 ACRES OF LEASES IN THE WEST
PANHANDLE FIELD KNOWN TO BE CAPABLE OF PRODUCING SWEET GAS; DRILLED
ABOUT 90 WELLS; ERECTED A COMPRESSOR PLANT; CONSTRUCTED A PIPE LINE TO
ITS CHICAGO MARKET; AND SECURED MARKETING CONTRACTS FOR DISTRIBUTION IN
OTHER STATES.  SIMILARLY, THE CONSOLIDATED GAS UTILITIES COMPANY (WITH
AFFILIATES) HAS EXPENDED A SMALLER SUM IN ACQUIRING AND DEVELOPING GAS
RESERVES IN THE EAST PANHANDLE FIELD AND IN CONSTRUCTING PIPE LINES TO,
AND SECURING CONTRACTS FOR MARKETING ITS GAS IN KANSAS. 

FN13  SECTION 59 OF ARTICLE 16 OF THE CONSTITUTION OF TEXAS, WHICH
ARTICLE WAS PROCLAIMED OCTOBER 2, 1917, PROVIDES, IN PART: 

"THE CONSERVATION AND DEVELOPMENT OF ALL THE NATURAL RESOURCES OF
THIS STATE  ...  AND THE PRESERVATION AND CONSERVATION OF SUCH NATURAL
RESOURCES OF THIS STATE ARE EACH AND ALL HEREBY DECLARED PUBLIC RIGHTS
AND DUTIES, AND THE LEGISLATURE SHALL PASS ALL SUCH LAWS AS ARE
APPROPRIATE THERETO...." 

FN14  HOUSE BILL 266 AMENDS ARTICLE 6008 OF THE REVISED CIVIL
STATUTES, WHICH IS THE STATUTE PARTICULARLY DEALING WITH THE PRODUCTION
AND USE OF NATURAL GAS.  THAT ARTICLE WAS AMENDED BY CHAP. 26 OF ACTS
OF 1931, FORTY-SECOND LEGISLATURE, FIRST CALLED SESSION, P. 46.  IT WAS
AGAIN AMENDED BY CHAP. 100 OF THE ACTS OF 1933, CALLED THE "SOUR GAS
LAW," FORTY-THIRD LEGISLATURE, REGULAR SESSION, P. 222; ALSO BY CHAP.
88 OF THE ACTS OF 1933, FORTY-THIRD LEGISLATURE, FIRST CALLED SESSION,
P. 229, WHICH REMAINED IN FORCE UNTIL AUGUST 1, 1935, WHEN HOUSE BILL
266 BECAME EFFECTIVE. 

FN15  SEE TEXAS CO. V. DAUGHERTY, 107 TEX. 226, 176 S.W. 717;
STEPHENS COUNTY V. MID-KANSAS OIL & GAS CO., 113 TEX. 160, 254 S.W.
290; GRAYBURG OIL CO. V. STATE, 50 S.W.(2D) 355. 

FN16  PRAIRIE OIL & GAS CO. V. STATE, 231 S.W. 1088(TEX.  COMM. 
APP.); COMPARE HOUSTON & TEXAS CENTRAL R. CO. V. EAST, 98 TEX. 146, 81
S.W. 279. 

FN17  COMPARE, E.G., HERMANN V. THOMAS, 143 S.W. 195(TEX.  CIV. 
APP.); UNITED NORTH & SOUTH OIL CO. V. MEREDITH, 258 S.W. 550(TEX. 
CIV.  APP.), AFFIRMED, 272 S.W. 124(TEX.  COMM.  APP.); HUNT V. STATE,
48 S.W.(2D) 466(TEX.  CIV.  APP.); MALONE V. BARNETT, 87 S.W.(2D)
523(TEX.  CIV.  APP.).  SEE BROWN V. HUMBLE OIL & REFINING CO., 83
S.W.(2D) 935(TEX.  SUP.  CT.). 

FN18  SEE COMANCHE DUKE OIL CO. V. TEXAS PACIFIC COAL & OIL CO., 298
S.W. 554(TEX.  COMM.  APP.). 

FN19  SEE DANCIGER OIL & REFINING CO. V. RAILROAD COMMISSION, 49
S.W.(2D) 837, 840(TEX.  CIV.  APP.), REVERSED AND DISMISSED AS MOOT,
122 TEX. 243; 56 S.W.(2D) 1075(TEX.  COMM.  APP.); BROWN V. HUMBLE OIL
& REFINING CO., 83 S.W.(2D) 935, 940, 941(TEX.  SUP.  CT.). 

FN20  HARRIMAN V. INTERSTATE COMMERCE COMM'N, 211 U.S. 407, 422;
UNITED STATES V. DELAWARE & HUDSON CO., 213 U.S. 366, 408. 

FN21  COMPARE PULLMAN CO. V. KNOTT, 235 U.S. 23, 27; LEE V. BICKELL,
292 U.S. 415, 425; FOX V. STANDARD OIL CO. OF NEW JERSEY, 294 U.S. 87,
97. 

FN22  ACT OF MARCH 4, 1913, C. 160, 37 STAT., P. 1013.  COMPARE WELCH
POGUE, "STATE DETERMINATION OF STATE LAW AND THE JUDICIAL CODE," 41
HARV. L. REV. 623, 626, ET SEQ. 

FN23  COMPARE WILSON CYPRESS CO. V. DEL POZO Y MARCOS, 236 U.S. 635,
657; HAMMOND V. SCHAPPI BUS LINE, INC., 275 U.S. 164, 169.  SEE BOWMAN
V. CONTINENTAL OIL CO., 256 U.S. 642, 647; LOUISIANA PUBLIC SERVICE
COMM'N V. MORGAN'S LOUISIANA & TEXAS RAILROAD & STEAMSHIP CO., 264 U.S.
393, 397; WABASH VALLEY ELECTRIC CO. V. YOUNG, 287 U.S. 488, 497;
MARION V. SNEEDEN, 291 U.S. 262, 271.  THIS COURT HAS CONSISTENTLY
ACCORDED GREAT DEFERENCE TO THE CONSTRUCTION OF TERRITORIAL LEGISLATION
ADOPTED BY THE LOCAL COURTS, WHETHER THE PREVAILING SYSTEM WAS THE
COMMON OR THE CIVIL LAW, AND THIS THOUGH IN SUCH CASES THIS COURT
POSSESSES AUTHORITY TO MAKE A DEFINITIVE CONSTRUCTION WHICH IT LACKS IN
THE CASE OF THE LEGISLATION OF A STATE.  SEE FOX V. HAARSTICK, 156 U.S.
674, 679; KEALOHA V. CASTLE, 210 U.S. 149, 153; PHOENIX RY. CO. V.
LANDIS, 231 U.S. 578, 579; DIAZ V. GONZALEZ, 261 U.S. 102, 105, 106;
COMPARE REYNOLDS V. FEWELL, 236 U.S. 58, 67. 

FN24  SEE ST. LOUIS-SAN FRANCISCO RY. CO. V. MIDDLEKAMP, 256 U.S.
226, 230; BRATTON V. CHANDLER, 260 U.S. 110, 114; SOUTH UTAH MINES &
SMELTERS V. BEAVER COUNTY, 262 U.S. 325, 331; CORPORATION COMMISSION V.
LOWE, 281 U.S. 431, 438; FOX V. STANDARD OIL CO. OF NEW JERSEY, 294
U.S. 87, 95, 96.  COMPARE PHILIPPINE SUGAR ESTATES DEVELOPMENT CO. V.
PHILIPPINE ISLANDS, 247 U.S. 385, 390; YU CONG ENG V. TRINIDAD, 271
U.S. 500, 522, 523. 

FN25  COMPARE VAN DYKE V. GEARY, 244 U.S. 39, 46; PALMETTO FIRE
INSURANCE CO. V. CONN, 272 U.S. 295, 305; LEE V. BICKELL, 292 U.S. 415,
424; FOX V. STANDARD OIL CO. OF NEW JERSEY, 294 U.S. 87, 96. 

FN26  OHIO OIL CO. V. INDIANA (NO. 1), 177 U.S. 190; LINDSLEY V.
NATURAL CARBONIC GAS CO., 220 U.S. 61; WEST V. KANSAS NATURAL GAS CO.,
221 U.S. 229; WALLS V. MIDLAND CARBON CO., 254 U.S. 300; BANDINI
PETROLEUM CO. V. SUPERIOR COURT, 284 U.S. 8; CHAMPLIN REFINING CO. V.
CORPORATION COMMISSION, 286 U.S. 210; STERLING V. CONSTANTIN, 287 U.S.
378. 

FN27  COMPARE CASES CITED IN NOTE 26, SUPRA. 

FN28  PLAINTIFFS CLAIM THAT THEY WILL BE OBLIGED TO INCUR FURTHER
EXPENSE IN THE CONSTRUCTION OF GATHERING LINES TO CONNECT THEIR PIPE
LINES WITH THE WELLS OF OTHERS.  THERE IS NO FINDING OF WILLINGNESS ON
THE PART OF NON-PIPE LINE WELL OWNERS TO ASSUME OR SHARE SUCH EXPENSE. 

FN29  COMPARE PRODUCERS TRANSPORTATION CO. V. RAILROAD COMMISSION,
251 U.S. 228, 230, 231; MICHIGN PUBLIC UTILITIES COMM'N V. DUKE, 266
U.S. 570, 577, 578; SMITH V. CAHOON, 283 U.S. 553, 563. 

FN30  SEE CHICAGO & NORTHWESTERN RY. CO. V. OCHS, 249 U.S. 416, 421,
422. 

FN31  CASES ARE COLLECTED IN NOTES, 34 COL. L. REV. 1495; 48 HARV. L.
REV. 988. 
..END :













ICKES V. FOX ET AL., 300 U.S. 82 


NO. 266.  ARGUED JANUARY 6, 1937.  - DECIDED FEBRUARY 1, 1937.  - 66
APP. D.C. 128 - 85 F.(2D) 294, AFFIRMED. 


1.  SUITS TO WHICH THE UNITED STATES IS AN INDISPENSABLE PARTY
DEFENDANT MAY BE MAINTAINED ONLY WHEN THE CONGRESS HAS SO PROVIDED.  P.
96. 

2.  UPON THE FACTS ALLEGED IN THE BILLS, HELD THAT, UNDER THE
RECLAMATION ACT, THE LAWS OF WASHINGTON, AND CONTRACTS BETWEEN THE
GOVERNMENT AND OWNERS OF LAND IN AN IRRIGATION PROJECT, THE RIGHTS OF
LANDOWNERS TO USE THE WATER IN THE QUANTITY PER ACRE REQUIRED FOR
IRRIGATING THEIR RESPECTIVE LANDS WERE NOT MERE RIGHTS OF CONTRACT WITH
THE GOVERNMENT, BUT WERE VESTED PROPERTY RIGHTS, APPURTENANT TO THEIR
LANDS AND WHOLLY DISTINCT FROM THE INTEREST OF THE GOVERNMENT IN THE
IRRIGATION WORKS.  P. 96. 

3.  THE FEDERAL GOVERNMENT, AS OWNER, HAD THE POWER TO DISPOSE OF THE
LAND AND WATER OF THE PUBLIC DOMAIN TOGETHER OR SEPARATELY; AND BY THE
DESERT LAND ACT, IF NOT BEFORE, CONGRESS ESTABLISHED THE RULE THAT FOR
THE FUTURE THE LANDS SHOULD BE PATENTED SEPARATELY.  P. 95. 

4.  BY THE DESERT LAND ACT, ACQUISITION OF THE GOVERNMENT TITLE TO A
PARCEL OF LAND DID NOT CARRY WITH IT A WATER RIGHT; BUT ALL NON
NAVIGABLE WATERS WERE RESERVED FOR THE USE OF THE PUBLIC UNDER THE LAWS
OF THE VARIOUS ARID-LAND STATES.  P. 95. 

5.  BY THE LAWS OF THE ARID-LAND STATES GENERALLY, AND OF THE STATE
OF WASHINGTON IN PARTICULAR, AND BY EXPRESS PROVISION OF THE
RECLAMATION ACT WITH RESPECT TO LANDS IN FEDERAL IRRIGATION PROJECTS,
THE RIGHT TO USE WATER FOR IRRIGATION, WHICH CAN ONLY BE ACQUIRED BY
PRIOR APPROPRIATION AND APPLICATION TO THAT BENEFICIAL USE, IS A
PROPERTY RIGHT AND PART AND PARCEL OF THE LAND UPON WHICH IT IS
APPLIED.  P. 95. 

6.  IN A SUIT AGAINST A GOVERNMENT OFFICER TO ENJOIN THE ENFORCEMENT
OF AN ORDER WHICH WOULD UNLAWFULLY DEPRIVE THE PLAINTIFF OF VESTED
PROPERTY RIGHTS, THE TRUTH OF ALLEGATIONS AS TO THE OWNERSHIP OF THE
RIGHTS IS CONCEDED BY A MOTION TO DISMISS; BUT EVEN IF THE ALLEGATIONS
WERE DENIED, A PRESUMPTION THAT THE PLAINTIFF MIGHT BE ABLE TO PROVE
THEM WILL BE INDULGED IN FAVOR OF THE JURISDICTION OF THE TRIAL COURT. 
P. 96. 

7.  THE UNITED STATES IS NOT AN INDISPENSABLE PARTY TO SUITS BROUGHT
TO ENJOIN THE SECRETARY OF THE INTERIOR FROM ENFORCING AN ORDER WHICH
WOULD WRONGFULLY DEPRIVE THE PLAINTIFFS OF VESTED PROPERTY RIGHTS THAT
WERE NOT ONLY ACQUIRED UNDER ACTS OF CONGRESS, STATE LAWS AND
GOVERNMENT CONTRACTS BUT SETTLED AND DETERMINED BY HIS PREDECESSORS IN
OFFICE.  PP. 96-97. 

ICKES, SECRETARY OF THE INTERIOR, V. FOX ET AL.* 

FN*  TOGETHER WITH NO. 267, ICKES, SECRETARY OF THE INTERIOR, V.
PARKS ET AL.; AND NO. 268, ICKES, SECRETARY OF THE INTERIOR, V.
OTTMULLER.  ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

WRITS OF CERTIORARI, 299 U.S. 528, TO REVIEW JUDGMENTS AFFIRMING,
UPON SPECIAL APPEALS, ORDERS OF THE TRIAL COURT DENYING MOTIONS TO
DISMISS AMENDED BILLS IN THREE SUITS AGAINST THE SECRETARY OF THE
INTERIOR. 

THE UNITED STATES IS AN INDISPENSABLE PARTY. 

IF THE UNITED STATES WAS THE APPROPRIATOR AND IS THE OWNER OF THE
WATER RIGHTS IN QUESTION, THE RESPONDENTS CAN HAVE NO CLAIM APART FROM
THEIR CONTRACTS WITH THE UNITED STATES.  THE SUITS ON SUCH CONTRACTS
WERE THEREFORE RIGHTLY DISMISSED.  WELLS V. ROPER, 246 U.S. 335;
TRANSCONTINENTAL & WESTERN AIR V. FARLEY, 71 F.(2D) 288, CERT. DEN.,
293 U.S. 603.  THE RELIEF SOUGHT WOULD BE THE EQUIVALENT OF SPECIFIC
PERFORMANCE OF A CONTRACT WITH THE UNITED STATES, WHICH NO COURT HAS
JURISDICTION TO AWARD.  GOLTRA V. WEEKS, 271 U.S. 536, 546; UNITED
STATES EX REL. SHOSHONE IRRIGATION DISTRICT V. ICKES, 70 F.(2D) 770,
773, CERT. DEN., 293 U.S. 571; BOEING AIR TRANSPORT V. FARLEY, 75
F.(2D) 765, CERT. DEN., 294 U.S. 728. 

WHETHER THE CIRCUMSTANCES GIVE THE RESPONDENTS ANY SORT OF A PROPERTY
RIGHT IN THE WATER MUST BE DETERMINED IN THE LIGHT OF STATE LAW, TO
WHICH THE RECLAMATION ACTIVITIES OF THE FEDERAL GOVERNMENT ARE
EXPRESSLY MADE SUBJECT.  ACT OF JUNE 17, 1902, C. 1093, SEC. 8, 32
STAT. 390.  DOES THE MERE USE OF WATER SUPPLIED UNDER CONTRACT WITH THE
OPERATOR OF A STORAGE AND IRRIGATION SYSTEM GIVE TITLE TO THE WATER
INDEPENDENTLY OF THE CONTRACT? 

SOME OF THE ARID STATES, BY STATUTE OR BY DECISION, HAVE MODIFIED THE
DOCTRINE OF FIRST APPROPRIATION TO REQUIRE THAT THERE BE ACTUAL
BENEFICIAL USE BY THE APPROPRIATOR.  SEE WIEL, WATER RIGHTS IN THE
WESTERN STATES, II, C. 57, PP. 1235-1248(3D ED.).  COLORADO SEEMS TO
HAVE GONE FARTHER IN THIS DIRECTION THAN HAS ANY OTHER STATE.  UNDER
THE LAW OF THAT STATE, THE FACT OF STORAGE AND DISTRIBUTION DOES NOT
CONSTITUTE APPROPRIATION, BUT MERELY MAKES THE CARRIER OF THE WATER A
TRUSTEE FOR THE CONSUMER, IN WHOM THE PROPERTY RIGHT RESTS.  HIGHLAND
DITCH CO. V. UNION RESERVOIR CO., 53 COLO. 483; PIONEER IRRIGATION CO.
V. UNION RESERVOIR CO., 53 COLO. 483; PIONEER IRRIGATION CO. V. BOARD
OF COMMISSIONERS, 236 FED. 790, 792. 

UNDER THE APPLICABLE WASHINGTON LAW, THE ONE WHO DIVERTS WATER FOR
SALE OR DISTRIBUTION TO OTHERS HAS MADE A FULL APPROPRIATION AND HAS
FULL TITLE TO THE WATER. 

PRIOR TO 1917, THE APPROPRIATION OF WATER WAS GOVERNED BY THE ACT OF
1891(LAWS OF WASH., 1891, P. 327, SEC. 1; 2 REMINGTON'S CODE, 1915,
SEC. 6316).  UNDER THIS ACT ONE WHO IMPOUNDS WATER AND DISTRIBUTES IT
UNDER CONTRACT WITH AGRICULTURAL USERS IS THE APPROPRIATOR, AND THOSE
WHO CONTRACT WITH HIM HAVE NO PROPERTY RIGHTS IN THE WATER FROM ITS
USE, BUT MERELY THEIR CONTRACT RIGHTS AGAINST THE DISTRIBUTOR.  LANHAM
V. WENATCHEE CANAL CO., 48 WASH. 337; SHAFFORD V. WHITE BLUFFS CO., 63
WASH. 10; BLACK V. BAKER, 126 WASH. 604.  OTHER WASHINGTON CASES HAVE
ASSUMED AS A MATTER OF COURSE THAT THE REMEDY FOR FAILURE TO SUPPLY THE
AGREED WATER IS ONE FOR BREACH OF CONTRACT, OR FOR ITS SPECIFIC
PERFORMANCE.  (CITING MANY WASHINGTON CASES.) 

ERGO THE UNITED STATES IS THE APPROPRIATOR AND RESPONDENTS HAVE
MERELY CONTRACT RIGHTS AGAINST THE UNITED STATES.  UNITED STATES V.
UNION GAP IRRIGATION CO., 209 FED. 274, 276; WEST SIDE IRRIGATION CO.
V. UNITED STATES, 246 FED. 212, 217.  ANY DOUBTS AS TO THIS ARE SET AT
REST BY THE WASHINGTON STATUTE AUTHORIZING APPROPRIATIONS OF WATER FOR
FEDERAL RECLAMATION PROJECTS.  LAWS OF 1905, C. 88, P. 180.  UNDER THE
RECLAMATION ACT THE UNITED STATES IS THE APPROPRIATOR OF WATER.  IDE V.
UNITED STATES, 263 U.S. 497. 

OF THE WATER ACQUIRED UNDER ITS PROVISIONS SHALL BE APPURTENANT TO THE
LAND IRRIGATED, AND BENEFICIAL USE SHALL BE THE BASIS, THE MEASURE, AND
THE LIMIT OF THE RIGHT, WAS DESIGNED ONLY TO PREVENT SPECULATIVE
PROFITS, BY FORBIDDING ALIENATION OF THE WATER RIGHT FOR USE ON OTHER
LANDS OR FOR OTHER PURPOSES.  H. REP. NO. 1468, 57TH CONG., 1ST SESS.,
P. 7; 35TH CONG. REC. 1385, 6679. 

THE FOUNDATION OF THE BILLS IS THE ALLEGATION THAT THE SECRETARY OF
THE INTERIOR THREATENS TO INTERFERE WITH THE RESPONDENTS' WATER RIGHTS
WHICH ARE OWNED INDEPENDENTLY OF THE CONTRACTS BY WHICH THE UNITED
STATES AGREES TO FURNISH THE WATER.  THE VERY CLAIM THAT THE UNITED
STATES IS NOT A NECESSARY PARTY RESTS UPON A REQUEST THAT THE COURT
ADJUDICATE THAT THE CLAIM OF THE UNITED STATES TO OWNERSHIP OF THE
WATER MUST FALL BEFORE THE CLAIMS OF THE RESPONDENTS.  THE UNITED
STATES IS THEREFORE AN INDISPENSABLE PARTY.  AMERICAN FALLS RESERVOIR
DISTRICT V. CRANDALL, 82 F.(2D) 973; ARIZONA V. CALIFORNIA, 298 U.S.
558; GOLDBERG V. DANIELS, 231 U.S. 218, 221-222. 

THESE SUITS SEEK ALSO TO INTERFERE WITH THE OPERATION AND MANAGEMENT
OF THE RESERVOIRS AND DISTRIBUTION SYSTEM OF THE UNITED STATES.  IN
EFFECT, THE RELIEF SOUGHT IS THAT RESPONDENTS BE RESTORED TO THEIR
FORMER "RIGHTS AND PRIVILEGES" TO RECEIVE THE ADDITIONAL AMOUNTS OF
WATER.  THIS WOULD REQUIRE THAT WATER BE STORED IN THE RESERVOIRS, THAT
THE HEADGATES BE ADJUSTED, AND THAT WATER BE DELIVERED TO THE
RESPONDENTS IN THE AMOUNTS TO BE FIXED BY THE DECREE.  THESE BILLS
CONTEMPLATE A DIRECT INTERFERENCE WITH THE RIGHTS OF PROPERTY AND
MANAGEMENT WHICH ARE GUARANTEED BY SEC. 6 OF THE RECLAMATION ACT (43
U.S.C. 498). 

THIS CONCLUSION IS REINFORCED WHEN THE INTEREST OF THE UNITED STATES
IS VIEWED NOT ONLY AS ONE RELATING TO ITS OWNERSHIP OF PROPERTY BUT AS
ONE AFFECTING A BASIC ELEMENT OF ITS RECLAMATION POLICY.  THE ORDERS
ATTACKED BY THE RESPONDENTS RECITE THAT THE WATER FURNISHED THEM MUST
BE LIMITED TO THE AMOUNT SPECIFIED IN THEIR CONTRACTS, IN ORDER TO
SUPPLY WATER TO THE KITTITAS DIVISION.  THE SITUATION THUS APPEARS TO
BE ONE IN WHICH RESPONDENTS SEEK TO HAVE ENFORCED A RIGHT IN OPPOSITION
TO THE INTEREST OF THE UNITED STATES IN (1) MAKING AN EQUITABLE
DISTRIBUTION OF A LIMITED SUPPLY OF WATER, AND (2) IN FULFILLING THE
TERMS OF ITS CONTRACTS WITH OTHER LANDOWNERS. 

THE EFFECT OF THE PUBLIC NOTICES AND ORDERS SOUGHT TO BE ANNULLED IS
ARBITRARILY TO REDUCE THE MEASURE OF RESPONDENTS' RIGHT TO MUCH LESS
THAN THE MEASURE OF "BENEFICIAL USE," AS FIXED BY THE RECLAMATION LAW,
BY THE CONTRACTS, BY THE LEGISLATION AND JUDICIAL DECISIONS OF
WASHINGTON, BY PRACTICE ON ALL FEDERAL RECLAMATION PROJECTS AND BY THE
DETERMINATION OF A FORMER SECRETARY OF INTERIOR.  IN RE WATERS OF CRAB
CREEK, 134 WASH. 7, 14, 15; LONGMIRE V. SMITH, 26 WASH. 439; CALIFORNIA
OREGON POWER CO. V. BEAVER PORTLAND CEMENT CO., 295 U.S. 142; AMENT V.
BICKFORD, 139 WASH. 494, 495; MADISON V. MCNEAL, 171 WASH. 675; GEDDIS
V. PARISH, 1 WASH. 587, 591. 

DETERMINATION BY THE SECRETARY PRIOR TO AUGUST 13, 1914, OF
RESPONDENTS' RIGHT TO THE USE OF WATER ACQUIRED PURSUANT TO CONTRACT,
FIXED THE RIGHT AND CANNOT BE ANNULLED BY A SUCCESSOR.  WILBUR V.
BURLEY IRRIGATION DISTRICT, 58 F.(2D) 871; NOBLE V. UNION RIVER LOGGING
CO., 147 U.S. 164, 176. 

THE PUBLIC NOTICES SOUGHT TO BE VACATED INCREASE THE CONSTRUCTION
CHARGES AFTER THEY WERE FIXED BY PUBLIC NOTICE; STRIKE DOWN AND DESTROY
WATER RIGHTS WHICH ARE APPURTENANT TO RESPONDENTS' LANDS; AND VIOLATE
THE FUNDAMENTAL DOCTRINE "FIRST IN TIME, FIRST IN RIGHT," WHICH THE
SECRETARY OF THE INTERIOR IS REQUIRED TO OBSERVE IN CARRYING OUT THE
PROVISIONS OF THE RECLAMATION LAW. 

THE CASES OF WELLS V. ROPER; TRANSCONTINENTAL & WESTERN AIR V.
FARLEY; BOEING AIR TRANSPORT V. FARLEY; AND UNITED STATES EX REL.
SHOSHONE IRRIGATION DISTRICT V. ICKES, ARE CLEARLY DISTINGUISHABLE.  IN
THOSE SUITS THE PLAINTIFFS SOUGHT TO CONTROL THE DISCRETION AND
JUDGMENT OF EXECUTIVE OFFICERS ON MATTERS ENTRUSTED THEM BY CONGRESS. 
FURTHERMORE, THOSE CASES INVOLVED BREACH OF A CONTRACT BY THE UNITED
STATES.  CONGRESS HAD ENTRUSTED THE MATTERS INVOLVED TO THE DISCRETION
OF THE POSTMASTER GENERAL IN THE FIRST THREE CASES AND TO THE SECRETARY
OF THE INTERIOR IN THE LAST CASE; AND THE EXECUTIVE OFFICIAL WAS ACTING
WITHIN THE STATUTORY AUTHORITY AND JURISDICTION SO ENTRUSTED TO HIM IN
DISCRETIONARY MATTERS.  NONE OF THESE ELEMENTS EXIST IN THE SUITS AT
BAR.  THE DIFFERENCE BETWEEN THE ILLEGAL SEIZURE OF THE PROPERTY AND
CANCELLATION OF A CONTRACT IS CLEARLY POINTED OUT IN GOLTRA V. WEEKS,
271 U.S. 536.  SEE BALLINGER V. UNITED STATES, 216 U.S. 240; MIGUEL V.
MCCARL, 261 U.S. 442; AMERICAN SCHOOL OF MAGNETIC HEALING V. MCANNULTY,
187 U.S. 94; PAYNE V. CENTRAL PACIFIC RY. CO., 255 U.S. 228; ICKES V.
VIRGINIA-COLORADO DEVELOPMENT CO., 295 U.S. 639; UNITED STATES V. LEE,
106 U.S. 197; STERLING V. CONSTANTIN, 287 U.S. 378. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THE SOLE QUESTION IN EACH OF THESE THREE CASES IS WHETHER THE UNITED
STATES IS AN INDISPENSABLE PARTY DEFENDANT.  THE SUITS WERE BROUGHT IN
THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.  THAT COURT, ON MOTION
OF PETITIONER, DEEMING THE PRESENCE OF THE UNITED STATES TO BE
INDISPENSABLE, DISMISSED THE BILLS AS AMENDED.  THEREUPON, BY
PERMISSION OF THE COURT, SECOND-AMENDED BILLS WERE FILED.  PETITIONER
RENEWED HIS MOTIONS TO DISMISS, WHICH THE COURT THEN DENIED.  A SPECIAL
APPEAL WAS ALLOWED BY THE COURT BELOW, AND RESULTED IN AN AFFIRMANCE OF
THE DECREE OF THE TRIAL COURT.  66 APP. D.C. 128; 85 F.(2D) 294.  THE
ALLEGATIONS OF THE THREE SECOND-AMENDED BILLS OF COMPLAINT DIFFER IN
SOME PARTICULARS; BUT WHETHER THESE DIFFERENCES WILL AFFECT THE EXTENT
OR MEASURE OF THE RIGHTS OF THE RESPECTIVE RESPONDENTS OR THE FINAL
DISPOSITION OF THE SUITS SO AS TO REQUIRE UNLIKE DECREES, WE DO NOT
DETERMINE.  THEY ARE NOT SUCH AS TO NECESSITATE DIVERSE RULINGS IN
RESPECT OF THE QUESTION WHICH NOW IS PRESENTED FOR DECISION.  IN THIS
VIEW, WE CONFINE OUR STATEMENT, EXCEPT AS OTHERWISE NOTED, TO THE
ALLEGATIONS OF THE BILL OF COMPLAINT IN THE FOX CASE, NO. 266. 

PETITIONER, AS SECRETARY OF THE INTERIOR, HAS CHARGE OF THE
ADMINISTRATION OF THE RECLAMATION ACT OF JUNE 17, 1902(32 STAT. 388),
AS AMENDED.  IN 1906, THE THEN SECRETARY OF THE INTERIOR APPROVED A
RECLAMATION PROJECT KNOWN AS THE "SUNNYSIDE UNIT OF THE YAKIMA
PROJECT"; AND PURCHASED FROM THE WASHINGTON IRRIGATION COMPANY THE
SUNNYSIDE CANAL, TOGETHER WITH THE WATER APPROPRIATIONS AND IRRIGATION
SYSTEM CONNECTED THEREWITH.  AT THE TIME OF THE PURCHASE, CERTAIN ARID
AND UNIRRIGATED LANDS, DESCRIBED IN THE BILL, THEREAFTER AND NOW OWNED
BY RESPONDENTS, WERE WITHIN THE UNIT EMBRACED BY THE PROJECT. 

THE THEN OWNERS OF THE LANDS, PREDECESSORS OF RESPONDENTS IN TITLE,
AND OTHER OWNERS OF SIMILAR LANDS, INCORPORATED THE SUNNYSIDE WATER
USERS ASSOCIATION UNDER THE LAWS OF THE STATE OF WASHINGTON, PUT THEIR
LANDS WITHIN THE RECLAMATION PROJECT, AND AGREED TO TAKE WATER FROM THE
PROJECT TO IRRIGATE SUCH LANDS. 

THE ASSOCIATION, ON MAY 7, 1906, ENTERED INTO A CONTRACT WITH THE
UNITED STATES, THE RECITALS OF WHICH IN SUBSTANCE, SO FAR AS PERTINENT,
ARE THAT THESE LANDS ARE DESERT AND ARID IN CHARACTER AND WILL REMAIN
SO UNLESS THE WATERS OF THE YAKIMA RIVER AND ITS TRIBUTARIES BE
IMPOUNDED AND THE FLOW REGULATED AND CONTROLLED; THAT THE SECRETARY
CONTEMPLATES THE CONSTRUCTION OF IRRIGATION WORKS UNDER THE RECLAMATION
ACT FOR THE IRRIGATION AND RECLAMATION OF THESE LANDS; THAT THE
INCORPORATORS AND SHAREHOLDERS OF THE ASSOCIATION ARE REQUIRED TO BE
OWNERS AND OCCUPANTS OF LANDS WITHIN THE AREA TO BE IRRIGATED, AND
ALREADY ARE IN SOME CASES APPROPRIATORS OF WATER FOR THE IRRIGATION
THEREOF; THAT THEY ARE REQUIRED TO INITIATE RIGHTS TO THE USE OF WATER
FROM THE PROPOSED IRRIGATION WORKS AS SOON AS MAY BE, AND COMPLETE THE
ACQUISITION THEREOF AS PRESCRIBED BY THE SECRETARY, "WHICH RIGHTS SHALL
BE, AND THEREAFTER CONTINUE TO BE, FOREVER APPURTENANT TO DESIGNATED
LANDS OWNED BY SUCH SHAREHOLDERS." 

FOLLOWING THESE RECITALS, IT WAS AGREED THAT ONLY THOSE WHO BECAME
MEMBERS OF THE ASSOCIATION SHOULD BE ACCEPTED AS APPLICANTS FOR RIGHTS
TO THE USE OF WATER; THAT THE AGGREGATE AMOUNT OF SUCH RIGHTS SHOULD
NOT EXCEED THE NUMBER OF ACRES OF LAND CAPABLE OF IRRIGATION BY THE
TOTAL QUANTITY OF WATER AVAILABLE - NAMELY, THE QUANTITY NOW
APPROPRIATED BY SHAREHOLDERS OF THE ASSOCIATION AND THE QUANTITY TO BE
DELIVERED FROM ALL SOURCES IN EXCESS OF THE WATER NOW APPROPRIATED;
THAT THE SECRETARY SHOULD DETERMINE THE NUMBER OF ACRES CAPABLE OF SUCH
IRRIGATION, "TO BE BASED UPON AND MEASURED AND LIMITED BY THE
BENEFICIAL USE OF WATER"; THAT WATER RIGHTS SHOULD BE PAID FOR IN TEN
ANNUAL INSTALLMENTS; THAT THE ASSOCIATION GUARANTEES PAYMENT FOR THAT
PART OF THE COST OF THE IRRIGATION WORKS APPORTIONED TO ITS
SHAREHOLDERS - TIMES AND METHODS OF PAYMENT BEING STIPULATED IN DETAIL;
THAT RIGHTS TO WATER WHERE THE SAME HAVE VESTED WERE TO BE DEFINED,
DETERMINED, AND ENJOYED IN ACCORDANCE WITH THE RECLAMATION ACT AND
OTHER ACTS OF CONGRESS ON THE SUBJECT OF THE ACQUISITION AND ENJOYMENT
OF SUCH RIGHTS, AND BY THE LAWS OF THE STATE OF WASHINGTON.    SOME
TIME AFTER THE EXECUTION OF THE FOREGOING CONTRACT, THE PREDECESSORS IN
TITLE OF RESPONDENTS, UPON OFFICIALLY-APPROVED FORMS, MADE APPLICATIONS
FOR WATER-RIGHTS FOR THE IRRIGATION OF THE LANDS HERE INVOLVED.  BY THE
TERMS OF THE APPLICATIONS, THE MEASURE OF THE WATER-RIGHT FOR THE LAND
WAS STATED TO BE THAT QUANTITY WHICH SHALL BE BENEFICIALLY USED FOR THE
IRRIGATION THEREOF, NOT EXCEEDING THE SHARE PROPORTIONATE TO IRRIGABLE
ACREAGE OF THE WATER SUPPLY ACTUALLY AVAILABLE, TO BE PAID FOR (IN TEN
ANNUAL INSTALMENTS) IN AN AMOUNT WHICH WAS FIXED IN EACH APPLICATION. 
FN1  THE APPLICANTS AGREED THAT THE CONSTRUCTION CHARGE AND THE ANNUAL
CHARGES FOR OPERATION AND MAINTENANCE SHOULD BE AND WERE MADE A LIEN
UPON THE LANDS AND ALL WATER-RIGHTS THEN OR THEREAFTER APPURTENANT OR
BELONGING THERETO, TOGETHER WITH ALL IMPROVEMENTS THEREON. 

IT FURTHER IS ALLEGED THAT A FORMER SECRETARY OF THE INTERIOR
DETERMINED THAT THE TOTAL COST OF THE WATER RIGHTS FOR ALL THE LANDS IN
THE UNIT WOULD BE $52 PER ACRE, AND THAT SUCH SUM WOULD BE SUFFICIENT
TO RETURN TO THE RECLAMATION FUND THE TOTAL COST OF THE PROJECT; THAT,
PURSUANT TO THE TERMS OF THE RECLAMATION ACT, HE FIXED THE CONSTRUCTION
CHARGE FOR THE LAND HERE INVOLVED AT THAT AMOUNT PER ACRE, AND ISSUED
PUBLIC NOTICE AND ORDER ACCORDINGLY; THAT THEREAFTER THE SUCCESSIVE
SECRETARIES OF THE INTERIOR UNIFORMLY CONSTRUED THE RECLAMATION ACT AND
THE CONTRACTUAL OBLIGATIONS, TO THE EFFECT THAT THE OWNERS OF THE LANDS
HAD PURCHASED A SUFFICIENT QUANTITY OF WATER TO BENEFICIALLY AND
SUCCESSFULLY IRRIGATE THEIR LANDS, TO BE DETERMINED BY REPRESENTATIVES
OF THE SECRETARY HAVING PHYSICAL CHARGE OF THE WATER DISTRIBUTION, FROM
A FACTUAL INVESTIGATION AND PERSONAL EXAMINATION OF THE LANDS AND THE
CROPS GROWING THEREON AND THE WATER REQUIREMENTS THEREOF. 

PURSUANT THERETO, IT WAS DETERMINED BY REPRESENTATIVES OF THE
SUCCESSIVE SECRETARIES THAT 4.84 ACRE-FEET OF WATER PER ANNUM PER ACRE
WAS NECESSARY TO BENEFICIALLY AND SUCCESSFULLY IRRIGATE RESPONDENTS'
LANDS; THAT, THEREUPON, THE SECRETARIES OF THE INTERIOR, THROUGH THEIR
REPRESENTATIVES, HAVE, FOR A PERIOD OF MORE THAN TWENTY YEARS,
DELIVERED TO SUCH LANDS THE NECESSARY QUANTITY OF WATER; THAT AFTER THE
CONSTRUCTION OF THE IRRIGATION SYSTEM AND RESERVOIRS OF SUFFICIENT
CAPACITY TO BENEFICIALLY AND SUCCESSFULLY IRRIGATE ALL LANDS WITHIN THE
UNIT, AN ACT OF CONGRESS WAS PASSED PROVIDING THAT NO INCREASE OF
CONSTRUCTION CHARGES COULD BE MADE AFTER THEY HAD BEEN FIXED BY PUBLIC
NOTICE AND ORDER, EXCEPT BY AGREEMENT BETWEEN THE SECRETARY AND A
MAJORITY OF THE WATER-RIGHT APPLICANTS.  ON SEPTEMBER 24TH, 1914, THE
THEN SECRETARY OF THE INTERIOR ISSUED A PUBLIC NOTICE AND ORDER,
DECLARING THAT THERE WOULD BE NO INCREASE IN THE CONSTRUCTION CHARGES
AGAINST THE LANDS. 

RESPONDENTS AND THEIR PREDECESSORS, IT IS ALLEGED, HAVE FULLY
COMPLIED WITH THE TERMS OF THE RECLAMATION ACT AND ALL OBLIGATIONS IN
CONNECTION WITH THEIR WATER-RIGHTS, AND HAVE PAID TO THE GOVERNMENT ALL
SUMS DUE ON ACCOUNT OF CONSTRUCTION CHARGES, AND ALL OPERATION AND
MAINTENANCE CHARGES, AND HAVE ACQUIRED VESTED WATER-RIGHTS SUFFICIENT
TO BENEFICIALLY AND SUCCESSFULLY IRRIGATE THEIR LANDS - NAMELY, 4.84
ACRE-FEET OF WATER PER ACRE PER ANNUM; AND THAT SUCH WATER-RIGHTS ARE
APPURTENANT TO THEIR LANDS. 

THE BILL FURTHER ALLEGES THAT IN 1930 THE COMMISSIONER OF RECLAMATION
DESIRED TO CONSTRUCT THE CLE ELUM RESERVOIR TO STORE WATER FOR THE
IRRIGATION OF LANDS IN THE KITTITAS RECLAMATION DISTRICT AND OTHER
LANDS, THE CANAL AND DISTRIBUTING SYSTEM IN THAT DISTRICT BEING THEN IN
PROCESS OF CONSTRUCTION.  BUT FINDING THAT THE COST OF THE RESERVOIR
WOULD EXCEED, BY $1,000,000, THE AMOUNT WHICH WOULD BE RETURNED TO THE
RECLAMATION FUND, AND WITHOUT CONSULTING RESPONDENTS OR OTHER WATER
USERS IN THE SUNNYSIDE UNIT OF THE YAKIMA PROJECT, THE COMMISSIONER
CHARGED THE SUM OF $1,000,000 TO THAT UNIT AND DISTRICT, AND INFORMED
THE SECRETARY TO THAT EFFECT.  NEITHER RESPONDENT NOR ANY OTHER WATER
USERS IN THAT UNIT OR DISTRICT EVER AGREED TO THIS ARRANGEMENT; BUT THE
THEN-SECRETARY CERTIFIED TO THE PRESIDENT THAT PROVISION HAD BEEN MADE
FOR THE REPAYMENT TO THE RECLAMATION FUND OF THE TOTAL COST OF THE
RESERVOIR, AND THAT $1,000,000 THEREOF WAS TO BE OBTAINED BY RENTALS
FROM THE SUNNYSIDE DIVISION OF THE YAKIMA PROJECT. 

THE BILL FURTHER ALLEGES THAT THE SECRETARY AND OTHER OFFICIALS
AGREED WITH DESIGNATED PERSONS TO ATTEMPT TO FORCE AND COERCE
RESPONDENTS, AND OTHER WATER USERS IN THE DISTRICT, TO INDUCE THE
DISTRICT TO AGREE TO PAY THE ADDITIONAL SUM; OTHERWISE, TO FORCE AND
COERCE THEM TO SIGN WATER-RENTAL APPLICATIONS OR BE DEPRIVED OF A
PORTION OF THE WATER OWNED BY THEM.  IN PURSUANCE THEREOF, PUBLIC
NOTICE WAS GIVEN AND AN ORDER ISSUED LIMITING THEIR RIGHTS TO THREE
ACRE-FEET PER ACRE, AND EXACTING A SPECIFIED RENTAL CHARGE FOR
ADDITIONAL WATER.  RESPONDENTS AND THE OTHER WATER USERS WERE NOTIFIED
THAT THEY WOULD BE DEPRIVED OF ALL WATER IN EXCESS OF THE THREE ACRE
FEET PER ACRE UNLESS THEY MADE APPLICATION FOR ADDITIONAL WATER IN A
FORM AND MANNER PRESCRIBED.  RESPONDENTS AND THE OTHER WATER-RIGHT
USERS, HOWEVER, REFUSED TO MAKE SUCH APPLICATIONS. 

IT IS FURTHER ALLEGED THAT THREE ACRE-FEET OF WATER PER ACRE IS NOT,
NEVER HAS BEEN, AND WILL NOT IN THE FUTURE BE SUFFICIENT TO
BENEFICIALLY IRRIGATE RESPONDENTS' LANDS; BUT WOULD LEAVE A LARGE PART
THEREOF BARREN AND NONPRODUCTIVE, THEREBY FORCING ABOUT HALF OF THEIR
LANDS TO BEAR CONSTRUCTION AND MAINTENANCE CHARGES, TAXES AND
ASSESSMENTS UPON THE WHOLE THEREOF.  THE BILL SHOWS THAT IRREPARABLE
LOSS AND DAMAGE WILL RESULT IF THE ORDER OF THE SECRETARY IS ENFORCED;
AND THAT RESPONDENTS HAVE NO ADEQUATE OR COMPLETE REMEDY AT LAW, BUT
THAT EFFECTIVE RELIEF CAN BE ADMINISTERED ONLY BY A COURT OF EQUITY. 
THE PRAYER IS FOR A DECREE REQUIRING THE SECRETARY TO VACATE, SET ASIDE
AND HOLD FOR NAUGHT THE NOTICES AND ORDERS SET FORTH IN AND ATTACHED TO
THE BILL, AND THAT RESPONDENTS BE RESTORED TO THEIR FORMER RIGHTS AND
PRIVILEGES. 

THE BILL GOES INTO GREATER DETAIL IN RESPECT OF THE FACTS; BUT THE
FOREGOING GENERAL STATEMENT OF THE ALLEGATIONS IS ENOUGH FOR PRESENT
PURPOSES.  SUCCINCTLY STATED, THE CASE COMES TO THIS: THE UNITED
STATES, UNDER THE RECLAMATION ACT, CONSTRUCTED AN IRRIGATION SYSTEM FOR
THE PURPOSE OF STORING AND DISTRIBUTING WATER FOR IRRIGATION OF ARID
LANDS.  RESPONDENTS OWN WATER-RIGHTS UNDER THE SYSTEM FOR LANDS OF THAT
KIND; AND THESE LANDS REQUIRE ARTIFICIAL IRRIGATION TO RENDER THEM
PRODUCTIVE.  SO FAR AS THESE RESPONDENTS ARE CONCERNED, THE GOVERNMENT
DID NOT BECOME THE OWNER OF THE WATER-RIGHTS, BECAUSE THOSE RIGHTS BY
ACT OF CONGRESS WERE MADE "APPURTENANT TO THE LAND IRRIGATED"; FN2  AND
BY A WASHINGTON STATUTE, IN FORCE AT LEAST SINCE 1917, WERE "TO BE AND
REMAIN APPURTENANT TO THE LAND."  FN3  MOREOVER, BY THE CONTRACT WITH
THE GOVERNMENT, IT WAS THE LAND OWNERS WHO WERE "TO INITIATE RIGHTS TO
THE USE OF WATER," WHICH RIGHTS WERE TO BE AND "CONTINUE TO BE FOREVER
APPURTENANT TO DESIGNATED LANDS OWNED BY SUCH SHAREHOLDERS." 

RESPONDENTS HAD MADE ALL STIPULATED PAYMENTS AND COMPLIED WITH ALL
OBLIGATIONS BY WHICH THEY WERE BOUND TO THE GOVERNMENT, AND, LONG PRIOR
TO THE ISSUE OF THE NOTICES AND ORDERS HERE ASSAILED, HAD ACQUIRED A
VESTED RIGHT TO THE PERPETUAL USE OF THE WATERS AS APPURTENANT TO THEIR
LANDS.  UNDER THE RECLAMATION ACT, SUPRA, AS WELL AS UNDER THE LAW OF
WASHINGTON, "BENEFICIAL USE" WAS "THE BASIS, THE MEASURE AND THE LIMIT
OF THE RIGHT."  AND BY THE EXPRESS TERMS OF THE CONTRACT MADE BETWEEN
THE GOVERNMENT AND THE WATER USERS ASSOCIATION IN BEHALF OF RESPONDENTS
AND OTHER SHAREHOLDERS, THE DETERMINATION OF THE SECRETARY AS TO THE
NUMBER OF ACRES CAPABLE OF IRRIGATION WAS "TO BE BASED UPON AND
MEASURED AND LIMITED BY THE BENEFICIAL USE OF WATER."  PREDECESSORS OF
PETITIONER, ACCORDINGLY, HAD DECIDED THAT 4.84 ACRE-FEET OF WATER PER
ANNUM PER ACRE WAS NECESSARY TO THE BENEFICIAL AND SUCCESSFUL
IRRIGATION OF RESPONDENTS' LANDS; AND UPON THAT DECISION, FOR A PERIOD
OF MORE THAN TWENTY YEARS PRIOR TO THE WRONGS COMPLAINED OF, THERE WAS
DELIVERED TO AND USED UPON THE LANDS THAT QUANTITY OF WATER.  FN4
ALTHOUGH THE GOVERNMENT DIVERTED, STORED AND DISTRIBUTED THE WATER, THE
CONTENTION OF PETITIONER THAT THEREBY OWNERSHIP OF THE WATER OR WATER
RIGHTS BECAME VESTED IN THE UNITED STATES IS NOT WELL FOUNDED. 
APPROPRIATION WAS MADE NOT FOR THE USE OF THE GOVERNMENT, BUT, UNDER
THE RECLAMATION ACT, FOR THE USE OF THE LAND OWNERS; AND BY THE TERMS
OF THE LAW AND OF THE CONTRACT ALREADY REFERRED TO, THE WATER-RIGHTS
BECAME THE PROPERTY OF THE LAND OWNERS, WHOLLY DISTINCT FROM THE
PROPERTY RIGHT OF THE GOVERNMENT IN THE IRRIGATION WORKS.  COMPARE
MURPHY V. KERR, 296 FED. 536, 544, 545.  THE GOVERNMENT WAS AND
REMAINED SIMPLY A CARRIER AND DISTRIBUTOR OF THE WATER (IBID.), WITH
THE RIGHT TO RECEIVE THE SUMS STIPULATED IN THE CONTRACTS AS
REIMBURSEMENT FOR THE COST OF CONSTRUCTION AND ANNUAL CHARGES FOR
OPERATION AND MAINTENANCE OF THE WORKS.  AS SECURITY THEREFOR, IT WAS
PROVIDED THAT THE GOVERNMENT SHOULD HAVE A LIEN UPON THE LANDS AND THE
WATER-RIGHTS APPURTENANT THERETO - A PROVISION WHICH IN ITSELF IMPORTS
THAT THE WATER-RIGHTS BELONG TO ANOTHER THAN THE LIENOR, THAT IS TO
SAY, TO THE LAND OWNER. 

THE FEDERAL GOVERNMENT, AS OWNER OF THE PUBLIC DOMAIN, HAD THE POWER
TO DISPOSE OF THE LAND AND WATER COMPOSING IT TOGETHER OR SEPARATELY;
AND BY THE DESERT LAND ACT OF 1877(C. 107, 19 STAT. 377), IF NOT
BEFORE, CONGRESS HAD SEVERED THE LAND AND WATERS CONSTITUTING THE
PUBLIC DOMAIN AND ESTABLISHED THE RULE THAT FOR THE FUTURE THE LANDS
SHOULD BE PATENTED SEPARATELY.  ACQUISITION OF THE GOVERNMENT TITLE TO
A PARCEL OF LAND WAS NOT TO CARRY WITH IT A WATER-RIGHT; BUT ALL NON
NAVIGABLE WATERS WERE RESERVED FOR THE USE OF THE PUBLIC UNDER THE LAWS
OF THE VARIOUS ARID-LAND STATES.  CALIFORNIA POWER CO. V. BEAVER CEMENT
CO., 295 U.S. 142, 162.  AND IN THOSE STATES, GENERALLY, INCLUDING THE
STATE OF WASHINGTON, IT LONG HAS BEEN ESTABLISHED LAW THAT THE RIGHT TO
THE USE OF WATER CAN BE ACQUIRED ONLY BY PRIOR APPROPRIATION FOR A
BENEFICIAL USE; AND THAT SUCH RIGHT WHEN THUS OBTAINED IS A PROPERTY
RIGHT, WHICH, WHEN ACQUIRED FOR IRRIGATION, BECOMES, BY STATE LAW AND
HERE BY EXPRESS PROVISION OF THE RECLAMATION ACT AS WELL, PART AND
PARCEL OF THE LAND UPON WHICH IT IS APPLIED. 

WE ARE THUS BROUGHT TO THE DECISIVE QUESTION - IS THE UNITED STATES
AN INDISPENSABLE PARTY DEFENDANT?  IF SO, THE SUITS, HOWEVER
MERITORIOUS, MUST FAIL, SINCE NO RULE IS BETTER SETTLED THAN THAT THE
UNITED STATES CANNOT BE SUED EXCEPT WHEN CONGRESS HAS SO PROVIDED; AND
HERE THAT HAS NOT BEEN DONE.  PETITIONER'S CONTENTION THAT THE UNITED
STATES IS AN INDISPENSABLE PARTY DEFENDANT AND, AS IT CANNOT BE SUED,
THE SUITS SHOULD HAVE BEEN DISMISSED, IS BASED UPON THE PROPOSITIONS,
AS WE UNDERSTAND THEM, THAT THE UNITED STATES IS THE OWNER OF THE WATER
RIGHTS; THAT RESPONDENTS' CLAIMS REST ENTIRELY UPON EXECUTORY
CONTRACTS; AND THAT THE RELIEF SOUGHT IS THE SUBSTANTIAL EQUIVALENT OF
SPECIFIC PERFORMANCE OF THESE CONTRACTS. 

THE FALLACY OF THE CONTENTION IS APPARENT, BECAUSE THE THUS-FAR
UNDENIED ALLEGATIONS OF THE BILL, AS ALREADY APPEARS, DEMONSTRATE THAT
RESPONDENTS HAVE FULLY DISCHARGED ALL THEIR CONTRACTUAL OBLIGATIONS;
THAT THEIR WATER-RIGHTS HAVE BECOME VESTED; AND THAT OWNERSHIP IS IN
THEM AND NOT IN THE UNITED STATES.  THE MOTION TO DISMISS CONCEDES THE
TRUTH OF THESE ALLEGATIONS; BUT EVEN IF THEY WERE DENIED, WE SHOULD
STILL BE OBLIGED TO INDULGE THE PRESUMPTION, IN FAVOR OF THE
JURISDICTION OF THE TRIAL COURT, THAT RESPONDENTS MIGHT BE ABLE TO
PROVE THEM.  UNITED STATES V. LEE, 106 U.S. 196, 218, 219; CF. TINDAL
V. WESLEY, 167 U.S. 204, 213 ET SEQ. IN SUPPORT OF HIS CONTENTION,
PETITIONER RELIES UPON AMERICAN FALLS RESERVOIR DISTRICT V. CRANDALL,
82 F.(2D) 973; BUT THAT DECISION, IN SO FAR AS IT IS NOT IN HARMONY
WITH THE VIEW WHICH WE HAVE JUST TAKEN, MUST BE DISAPPROVED. 

THE SUITS DO NOT SEEK SPECIFIC PERFORMANCE OF ANY CONTRACT.  THEY ARE
BROUGHT TO ENJOIN THE SECRETARY OF THE INTERIOR FROM ENFORCING AN
ORDER, THE WRONGFUL EFFECT OF WHICH WILL BE TO DEPRIVE RESPONDENTS OF
VESTED PROPERTY RIGHTS NOT ONLY ACQUIRED UNDER CONGRESSIONAL ACTS,
STATE LAWS AND GOVERNMENT CONTRACTS, BUT SETTLED AND DETERMINED BY HIS
PREDECESSORS IN OFFICE.  THAT SUCH SUITS MAY BE MAINTAINED WITHOUT THE
PRESENCE OF THE UNITED STATES HAS BEEN ESTABLISHED BY MANY DECISIONS OF
THIS COURT, OF WHICH THE FOLLOWING ARE EXAMPLES:  NOBLE V. UNION RIVER
LOGGING R. CO., 147 U.S. 165, 171-2, 176; PHILADELPHIA CO. V. STIMSON,
223 U.S. 605, 619; GOLTRA V. WEEKS, 271 U.S. 536, 544; WORK V.
LOUISIANA, 269 U.S. 250, 254; PAYNE V. CENTRAL PACIFIC RY. CO., 255
U.S. 228, 238.  THESE DECISIONS CITE OTHER CASES TO THE SAME EFFECT. 
THE RECOGNIZED RULE IS MADE CLEAR BY WHAT IS SAID IN THE STIMSON CASE: 

"IF THE CONDUCT OF THE DEFENDANT CONSTITUTES AN UNWARRANTABLE
INTERFERENCE WITH PROPERTY OF THE COMPLAINANT, ITS RESORT TO EQUITY FOR
PROTECTION IS NOT TO BE DEFEATED UPON THE GROUND THAT THE SUIT IS ONE
AGAINST THE UNITED STATES.  THE EXEMPTION OF THE UNITED STATES FROM
SUIT DOES NOT PROTECT ITS OFFICERS FROM PERSONAL LIABILITY TO PERSONS
WHOSE RIGHTS OF PROPERTY THEY HAVE WRONGFULLY INVADED....  AND IN CASE
OF AN INJURY THREATENED BY HIS ILLEGAL ACTION, THE OFFICER CANNOT CLAIM
IMMUNITY FROM INJUNCTION PROCESS.... 

"THE COMPLAINANT DID NOT ASK THE COURT TO INTERFERE WITH THE OFFICIAL
DISCRETION OF THE SECRETARY OF WAR, BUT CHALLENGED HIS AUTHORITY TO DO
THE THINGS OF WHICH COMPLAINT WAS MADE.  THE SUIT RESTS UPON THE CHARGE
OF ABUSE OF POWER, AND ITS MERITS MUST BE DETERMINED ACCORDINGLY; IT IS
NOT A SUIT AGAINST THE UNITED STATES."    THE DECREE OF THE COURT BELOW
IS AFFIRMED. 

FN1  IN THE PARKS CASE THE QUANTITY OF WATER APPLIED FOR WAS STATED
TO BE THREE ACRE-FEET OF WATER PER ANNUM PER ACRE, OR AS MUCH MORE AS
WILL BE REQUIRED TO SUCCESSFULLY IRRIGATE THE LAND.  IN THE OTTMULLER
CASE THE QUANTITY WAS STATED TO BE THREE ACRE-FEET OF WATER PER ANNUM
PER ACRE, OR SO MUCH THEREOF AS SHALL CONSTITUTE THE PROPORTIONATE
SHARE PER ACRE FROM THE WATER SUPPLY ACTUALLY AVAILABLE FOR THE LANDS
UNDER THE PROJECT. 

FN2  "THE RIGHT TO THE USE OF WATER ACQUIRED UNDER THE PROVISIONS OF
THE RECLAMATION LAW SHALL BE APPURTENANT TO THE LAND IRRIGATED, AND
BENEFICIAL USE SHALL BE THE BASIS, THE MEASURE, AND THE LIMIT OF THE
RIGHT."  ACT OF JUNE 17, 1902, C. 1093, SEC. 8, 32 STAT. 388, 390;
TITLE 43 U.S.C. SEC. 372. 

FN3  "THE RIGHT TO THE USE OF WATER WHICH HAS BEEN APPLIED TO A
BENEFICIAL USE IN THE STATE SHALL BE AND REMAIN APPURTENANT TO THE LAND
OR PLACE UPON WHICH THE SAME IS USED:..."  LAWS OF WASH., 1917, C. 117,
SEC. 39, P. 465; LAWS OF WASH., 1929, C. 122, SEC. 6, P. 274; REM. 
REV.  STAT. SEC. 7391, VOL. 8, P. 425. 

FN4  IN THE PARKS CASE AND IN THE OTTMULLER CASE, THE QUANTITY OF
WATER THUS DETERMINED AND DELIVERED AND USED WAS 6 ACRE-FEET AND 5.56
ACRE-FEET OF WATER PER ACRE PER ANNUM, RESPECTIVELY. 
..END :














OSAKA SHOSEN LINE V. U.S., 300 U.S. 98 


NO. 224.  ARGUED JANUARY 4, 1937.  - DECIDED FEBRUARY 1, 1937.  - 84
F.(2D) 482, AFFIRMED. 


1.  IN PENAL STATUTES, NO LESS THAN IN OTHERS, THE LANGUAGE, IF CLEAR,
IS CONCLUSIVE.  P. 101. 

2.  GENERAL EXPRESSIONS IN AN OPINION WHICH GO BEYOND THE CASE IN
WHICH THEY WERE USED, MAY BE RESPECTED, BUT OUGHT NOT TO CONTROL THE
JUDGMENT IN A SUBSEQUENT SUIT PRESENTING THE VERY POINT FOR DECISION. 
P. 103. 

3.  SECTION 10(A) OF THE IMMIGRATION ACT OF 1917, AS AMENDED, MAKES
IT THE DUTY OF EVERY PERSON, INCLUDING OWNERS, MASTERS, OFFICERS, AND
AGENTS OF VESSELS OR TRANSPORTATION LINES, "BRINGING AN ALIEN TO, OR
PROVIDING A MEANS FOR AN ALIEN TO COME TO, THE UNITED STATES, TO
PREVENT THE LANDING OF SUCH ALIEN IN THE UNITED STATES AT ANY TIME OR
PLACE OTHER THAN AS DESIGNATED BY THE IMMIGRATION OFFICERS."  PENALTIES
WERE PRESCRIBED FOR FAILURE TO COMPLY.  HELD: 

(1)  THE WORD "ALIEN," AS USED IN THE SECTION, WAS NOT INTENDED TO
INCLUDE AN ALIEN SAILOR.  P. 103. 

(2)  TO CONSTITUTE THE ACT OF "BRINGING AN ALIEN TO THE UNITED
STATES," IT IS NOT ESSENTIAL THAT THERE BE AN INTENT TO LEAVE HIM
HERE.  DECIDED THUS IN A CASE INVOLVING AN ALIEN PASSENGER, EN ROUTE
FROM BRAZIL TO JAPAN, WHO DEBARKED AT A PORT OF CALL IN THE UNITED
STATES.  TAYLOR V. UNITED STATES, 207 U.S. 120, LIMITED.  P. 104. 

(3)  UNDER SEC. 10 IT IS NOT NECESSARY THAT A DETENTION ORDER BE
ISSUED BY THE IMMIGRATION OFFICIALS; THE LANDING OF AN ALIEN IS
FORBIDDEN UNLESS PERMITTED.  P. 101. 

(4)  THE MEANING OF SEC. 10(A) IS NOT RESTRICTED BY SUBDIVISION (B)
OF SEC. 10, WHICH SIMPLY PROVIDES A RULE OF EVIDENCE AFFECTING THE
BURDEN OF PROOF.  P. 104. 

OSAKA SHOSEN KAISHA LINE V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. 

CERTIORARI, 299 U.S. 526, TO REVIEW A DECREE REVERSING A DECREE OF
THE DISTRICT COURT, WHICH DISMISSED WITH PREJUDICE A LIBEL BY THE
UNITED STATES TO RECOVER A PENALTY UNDER THE IMMIGRATION ACT. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

TITLE 8 U.S.C. SEC. 146, MAKES IT THE DUTY OF EVERY PERSON, INCLUDING
OWNERS, MASTERS, OFFICERS, AND AGENTS OF VESSELS OR TRANSPORTATION
LINES, "BRINGING AN ALIEN TO, OR PROVIDING A MEANS FOR AN ALIEN TO COME
TO, THE UNITED STATES, TO PREVENT THE LANDING OF SUCH ALIEN IN THE
UNITED STATES AT ANY TIME OR PLACE OTHER THAN AS DESIGNATED BY THE
IMMIGRATION OFFICERS."  FAILURE TO COMPLY WITH THE PROVISION
CONSTITUTES A MISDEMEANOR PUNISHABLE BY FINE OR IMPRISONMENT OR BOTH. 
IF THE SECRETARY OF LABOR IS OF OPINION THAT A PROSECUTION IS
IMPRACTICABLE OR INCONVENIENT, A PENALTY OF $1,000 IS IMPOSED AND A
LIEN UPON THE VESSEL IS CREATED FOR WHICH SUCH VESSEL SHALL BE LIBELED
IN THE APPROPRIATE UNITED STATES COURT. 

BY SUBDIVISION (B) OF SEC. 10, PROOF THAT THE ALIEN FAILED TO PRESENT
HIMSELF AT THE TIME AND PLACE DESIGNATED BY THE IMMIGRATION OFFICERS
CONSTITUTES PRIMA FACIE EVIDENCE THAT THE ALIEN HAS LANDED AT A TIME OR
PLACE OTHER THAN THAT DESIGNATED. 

ON JUNE 11, 1932, THE SANTOS MARU CAME INTO THE PORT OF NEW ORLEANS
WITH SALVATORE SPROVIERI, AN ALIEN PASSENGER, ON BOARD.  THE PASSENGER
WAS EN ROUTE FROM BRAZIL TO JAPAN UPON A THROUGH TICKET; AND WAS NOT
ENTITLED TO ENTER THE UNITED STATES.  ON ARRIVAL OF THE STEAMSHIP, THE
IMMIGRATION OFFICERS AT NEW ORLEANS ISSUED A WRITTEN ORDER TO THE
STEAMSHIP TO HOLD THE ALIEN ON BOARD AT ALL PORTS OF THE UNITED STATES
AT WHICH THE SHIP MIGHT TOUCH - THE ORDER BEING DULY SERVED UPON THE
OFFICERS OF THE SHIP.  A FEW DAYS LATER, THE SHIP ARRIVED AT THE PORT
OF GALVESTON, TEXAS; AND THERE, BY THE NEGLIGENCE OF THE SHIP, ITS
OFFICERS AND CREW, THE ALIEN PASSENGER WAS ALLOWED TO ESCAPE AND LAND
IN THE UNITED STATES WITHOUT PERMISSION OF THE IMMIGRATION OFFICERS AND
IN VIOLATION OF THEIR ORDER.  OFFICERS OF THE SHIP NOTIFIED THE
IMMIGRATION AUTHORITIES OF THE ESCAPE OF THE PASSENGER; BUT THE SHIP
SAILED BEFORE HIS ARREST.  SUBSEQUENTLY, THE PASSENGER WAS ARRESTED AND
DEPORTED ON ANOTHER VESSEL OF THE SAME LINE. 

THE SECRETARY OF LABOR WAS OF OPINION THAT IT WAS IMPRACTICABLE AND
INCONVENIENT TO PROSECUTE THE MATTER CRIMINALLY; AND A LIBEL WAS FILED
ON BEHALF OF THE UNITED STATES IN THE APPROPRIATE FEDERAL DISTRICT
COURT, PRAYING A DECREE FOR THE $1,000 PENALTY AND TO ENFORCE THE LIEN
THEREFOR AGAINST THE SHIP. 

THE DISTRICT COURT TOOK THE VIEW THAT, THE ALIEN PASSENGER NOT BEING
BOUND FOR THE UNITED STATES BUT EN ROUTE FROM BRAZIL TO JAPAN, THE SHIP
WAS NOT LIABLE, AND DISMISSED THE LIBEL WITH PREJUDICE.  THE CIRCUIT
COURT OF APPEALS HELD OTHERWISE, REVERSED THE DECREE AND REMANDED THE
CAUSE WITH INSTRUCTIONS TO ENTER A DECREE FOR THE UNITED STATES.  84
F.(2D) 482. 

THE BASIC CONTENTION OF PETITIONER, IN ITS ASSAULT UPON THE LATTER
DECREE, IS THAT ONE WHO TRANSPORTS AN ALIEN PASSENGER FROM ONE FOREIGN
COUNTRY TO ANOTHER, DOES NOT BRING HIM TO THE UNITED STATES, WITHIN THE
MEANING OF SEC. 10, BY ENTERING, WITH THE ALIEN ON BOARD, AN AMERICAN
PORT OF CALL ON THE WAY.  IF IT WERE NOT FOR A SENTENCE CONTAINED IN
THE OPINION OF THIS COURT IN TAYLOR V. UNITED STATES, INFRA, OF WHICH
WE SHALL SPEAK LATER, WE MIGHT DISPOSE OF THIS CONTENTION BY SIMPLY
SAYING THAT IT IS CONTRARY TO THE UNAMBIGUOUS TERMS OF THE SECTION. 
NOTHING CAN BE PLAINER THAN THAT A SHIP WHICH ENTERS ONE OF OUR PORTS
HAS COME TO THE UNITED STATES; AND A PASSENGER ON BOARD OBVIOUSLY HAS
COME WITH THE SHIP, AND CONSEQUENTLY HAS BEEN BROUGHT BY THE SHIP TO
THE UNITED STATES.  AND THIS REMAINS NONE THE LESS THE FACT, ALTHOUGH
THE SHIP CONTINUE ON HER WAY TO A FOREIGN PORT, AND ALTHOUGH IT WAS
INTENDED THAT THE PASSENGER SHOULD GO WITH HER, AND NOT BE LEFT IN THE
UNITED STATES.  TO SAY THAT THE PASSENGER HAS NOT BEEN BROUGHT TO THE
UNITED STATES UNLESS THE INTENT WAS TO LEAVE HIM HERE, IS NOT TO
CONSTRUE THE STATUTE BUT TO ADD AN ADDITIONAL AND QUALIFYING TERM TO
ITS PROVISIONS.  THIS WE ARE NOT AT LIBERTY TO DO UNDER THE GUISE OF
CONSTRUCTION, BECAUSE, AS THIS COURT HAS SO OFTEN HELD, WHERE THE WORDS
ARE PLAIN THERE IS NO ROOM FOR CONSTRUCTION.  UNITED STATES V.
WILTBERGER, 5 WHEAT.  76, 95-96; HAMILTON V. RATHBONE, 175 U.S. 414,
419, 421; UNITED STATES V. HARTWELL, 6 WALL.  385, 396; CROOKS V.
HARRELSON, 282 U.S. 55, 59-60. 

IT IS URGED THAT THE STATUTE IS HIGHLY PENAL IN CHARACTER AND SHOULD
THEREFORE BE CONSTRUED STRICTLY.  BUT THE OBJECT OF ALL CONSTRUCTION,
WHETHER OF PENAL OR OTHER STATUTES, IS TO ASCERTAIN THE LEGISLATIVE
INTENT; AND IN PENAL STATUTES, AS IN THOSE OF A DIFFERENT CHARACTER,
"IF THE LANGUAGE BE CLEAR, IT IS CONCLUSIVE."  UNITED STATES V.
HARTWELL, SUPRA, PP. 395-396; UNITED STATES V. CORBETT, 215 U.S. 233,
242; SACRAMENTO NAVIGATION CO. V. SALZ, 273 U.S. 326, 329-330. 

THE DUTY OF THE SHIP IS TO PREVENT THE LANDING OF THROUGH ALIEN
PASSENGERS EXCEPT BY PERMISSION.  THE UNITED STATES IS UNDER NO
OBLIGATION TO PERMIT THE TEMPORARY LANDING OF SUCH PASSENGERS AT ITS
PORTS AT ALL.  A DETENTION ORDER IS NOT NECESSARY, ALTHOUGH ONE WAS
ISSUED IN THIS INSTANCE; FOR THE CASE IS NOT ONE WHERE LANDING IS
PERMITTED IF NOT FORBIDDEN BY THE IMMIGRATION OFFICIALS, BUT WHERE IT
IS FORBIDDEN UNLESS PERMITTED.  SECTION 10 IS NOT LIKE, FOR EXAMPLE,
SEC. 20 OF THE IMMIGRATION ACT OF 1924, WHICH IMPOSES A FINE UPON THE
OWNER, CHARTERER, AGENT, CONSIGNEE, OR MASTER OF A VESSEL ARRIVING IN
THE UNITED STATES WHO FAILS, AFTER INSPECTION, TO DETAIN AN ALIEN
SEAMAN EMPLOYED ON THE VESSEL "IF REQUIRED" BY THE IMMIGRATION OFFICER
IN CHARGE OF THE PORT TO DO SO.  UNDER THAT PROVISION, "A DUTY SO TO
DETAIN DOES NOT ARISE UNLESS AND UNTIL SUCH DETENTION IS REQUIRED BY
THE IMMIGRATION OFFICER."  COMPAGNIE GENERALE V. ELTING, 298 U.S. 217,
223.  UNDER SEC. 10, HOWEVER, THE DUTY IS IMPOSED BY THE STATUTE AND
NOT BY REQUIREMENT OF THE IMMIGRATION OFFICIALS.  THE MATTER IS TAKEN
CARE OF BY A REGULATION OF THE SECRETARY OF LABOR (RULE 3, SUBDIVISION
H, P6, "IMMIGRATION LAWS AND RULES OF JANUARY 1, 1930," P. 125), WHICH
PROVIDES THAT THROUGH ALIEN PASSENGERS "MAY LAND TEMPORARILY WITHOUT
VISAED PASSPORTS, FOR THE LIMITED PERIOD OF TIME DURING WHICH THE
VESSEL LIES OVER IN PORT, IN CASES WHERE THE EXAMINING OFFICER IS
SATISFIED THAT THEY WILL DEPART ON THE VESSEL AT THE TIME IT PROCEEDS
ON THE SAME VOYAGE  ..." 

THE MAIN RELIANCE OF PETITIONER IS ON TAYLOR V. UNITED STATES, 207
U.S. 120, 124, 125.  THAT CASE AROSE UNDER SEC. 18 OF THE IMMIGRATION
ACT OF MARCH 3, 1903, WHICH IMPOSES THE DUTY UPON A SHIP BRINGING AN
ALIEN TO THE UNITED STATES TO ADOPT DUE PRECAUTIONS TO PREVENT THE
LANDING OF SUCH ALIEN AT ANY TIME OR PLACE OTHER THAN THAT DESIGNATED
BY THE IMMIGRATION OFFICERS.  THIS COURT HELD THAT THE PROVISION DID
NOT APPLY "TO THE ORDINARY CASE OF A SAILOR DESERTING WHILE ON SHORE
LEAVE."  IN THE COURSE OF THE OPINION IT WAS SAID THAT THE PHRASE
"BRINGING AN ALIEN TO THE UNITED STATES" MEANT "TRANSPORTING WITH
INTENT TO LEAVE IN THE UNITED STATES AND FOR THE SAKE OF TRANSPORT -
NOT TRANSPORTING WITH INTENT TO CARRY BACK, AND MERELY AS INCIDENT TO
EMPLOYMENT ON THE INSTRUMENT OF TRANSPORT."  "INTENT TO LEAVE" IS RIGHT
ENOUGH AS APPLIED TO A SEAMAN ON THE SHIP, BUT IT MAY NOT BE EXTENDED
TO INCLUDE AN ALIEN THROUGH PASSENGER. 

THE COURT THERE WAS DEALING WITH AND THINKING OF A SAILOR, AND NOT OF
AN ALIEN THROUGH PASSENGER; AND ITS LANGUAGE MUST BE READ ACCORDINGLY,
FOR - "IT IS A MAXIM, NOT TO BE DISREGARDED, THAT GENERAL EXPRESSIONS,
IN EVERY OPINION, ARE TO BE TAKEN IN CONNECTION WITH THE CASE IN WHICH
THOSE EXPRESSIONS ARE USED.  IF THEY GO BEYOND THE CASE, THEY MAY BE
RESPECTED, BUT OUGHT NOT TO CONTROL THE JUDGMENT IN A SUBSEQUENT SUIT,
WHEN THE VERY POINT IS PRESENTED FOR DECISION."  COHENS V. VIRGINIA, 6
WHEAT.  264, 399; HUMPHREY'S EXECUTOR V. UNITED STATES, 295 U.S. 602,
626-627.  THE POINT TO BE OBSERVED IN THE TAYLOR CASE IS THAT THE
TRANSPORTATION OF THE SAILOR WAS MERELY AS AN "INCIDENT TO EMPLOYMENT
ON THE INSTRUMENT OF TRANSPORT."  THAT IS TO SAY, THE SAILOR WAS ONE OF
THE AGENCIES WHICH BROUGHT THE SHIP IN, RATHER THAN AN ALIEN BROUGHT IN
BY THE SHIP.  "IT IS TRUE," CHIEF JUSTICE MARSHALL SAID IN THE WILSON
V. UNITED STATES, 1 BROCK.  423, 30 FED. CAS. 239, 244, "THAT A VESSEL
COMING INTO PORT, IS THE VEHICLE WHICH BRINGS IN HER CREW, BUT WE DO
NOT IN COMMON LANGUAGE SAY, THAT THE MARINERS ARE 'IMPORTED,' OR
BROUGHT IN BY A PARTICULAR VESSEL; WE RATHER SAY THEY BRING IN THE
VESSEL."  THE GENERALITY OF THE AFFIRMATIVE PHRASE, "TRANSPORTING WITH
INTENT TO LEAVE IN THE UNITED STATES," IS OBVIOUSLY QUALIFIED BY THE
NEGATIVE FORM OF EXPRESSION IMMEDIATELY FOLLOWING, "NOT TRANSPORTING
WITH INTENT TO CARRY BACK AND MERELY AS INCIDENT TO EMPLOYMENT ON THE
INSTRUMENT OF TRANSPORT." 

WHEN WE CONSIDER THE RELATION OF THE SAILOR TO THE SHIP - THAT HE IS,
FOR ALL PRACTICAL PURPOSES, A PART OF IT AND NOT, LIKE A PASSENGER,
APART FROM IT - IT IS QUITE APPARENT THAT THE WORD "ALIEN" AS USED IN
SEC. 10 DOES NOT, AND WAS NOT INTENDED TO, INCLUDE AN ALIEN SAILOR. 
SOME OF THOSE ENGAGED IN THE OPERATION OF A VESSEL MUST GO ASHORE. 
THEY MAY BE REQUIRED TO LOAD AND UNLOAD THE CARGO, TO COMMUNICATE WITH
THE LOCAL REPRESENTATIVES OF THE LINE, AND NECESSARILY TO PERFORM A
VARIETY OF DUTIES WHICH REQUIRE THEIR PRESENCE ASHORE.  A DENIAL OF THE
PRIVILEGE WOULD BE SO LIKELY TO ADVERSELY AFFECT COMMERCE AS TO REQUIRE
MUCH PLAINER LANGUAGE THAN WE FIND IN SEC. 10 TO JUSTIFY THE CONCLUSION
THAT CONGRESS HAD DENIED IT.  TO ADOPT THAT CONCLUSION WOULD BE TO
DECLARE THAT THE ACT WAS VIOLATED WHENEVER A MEMBER OF THE CREW WAS
SENT ASHORE TO PERFORM AN ACT IMPERATIVELY NECESSARY IN THE SERVICE OF
THE SHIP. 

PETITIONER CITES, ALSO IN SUPPORT OF ITS CONTENTION, THE ALFONSO
XIII, 53 F.(2D) 124, 126; DOLLAR S.S. LINE V. ELTING, 51 F.(2D) 1035;
AND THE HABANA, 63 F.(2D) 812; BUT THOSE DECISIONS WERE EXPRESSLY BASED
UPON WHAT WAS REGARDED AS THE CONTROLLING EFFECT OF THE PHRASE WHICH WE
HAVE QUOTED FROM THE TAYLOR CASE; AND FROM A READING OF THE OPINIONS IT
SEEMS QUITE EVIDENT THAT BUT FOR THAT THE DECISIONS WOULD HAVE BEEN
OTHERWISE.  FOR EXAMPLE, JUDGE WOOLSEY, IN THE ALFONSO XIII, SAID THAT
IF HE WERE DEALING WITH THE MATTER DE NOVO, UNINSTRUCTED BY JUDICIAL
AUTHORITY ABOVE HIM, HE WOULD HAVE FOUND IT DIFFICULT TO GIVE THE WORDS
"BRINGING AN ALIEN TO THE UNITED STATES" A MEANING DIFFERENT FROM WHAT
THEY LITERALLY MEAN. 

WE REJECT THE NOTION THAT IN THE CASE WITH WHICH WE ARE NOW CONCERNED
IT IS NECESSARY TO CONSTITUTE THE ACT OF BRINGING AN ALIEN TO THE
UNITED STATES THAT THERE SHOULD BE AN INTENT TO LEAVE HIM HERE. 

WE SEE NOTHING IN THE SUGGESTION THAT SUBDIVISION (B) OF SEC. 10
SUSTAINS PETITIONER'S VIEW OF THE CASE.  THAT SUBDIVISION SIMPLY
PROVIDES A RULE OF EVIDENCE AFFECTING THE BURDEN OF PROOF, AND WE THINK
DOES NOT IN ANY WAY RESTRICT THE PLAIN MEANING OF SEC. 10(A) AS WE HAVE
FOUND IT.  DECREE AFFIRMED. 
..END :
























HILL V. U.S. EX REL. WEINER, 300 U.S. 105 


NO. 171.  ARGUED JANUARY 11, 1937.  - DECIDED FEBRUARY 1, 1937.  - 84
F.(2D) 27, REVERSED. 


1.  THE PROVISION OF SEC. 22 OF THE CLAYTON ACT FIXING A TERM OF SIX
MONTHS AS THE MAXIMUM PENALTY OF IMPRISONMENT FOR CONTEMPT, IS LIMITED
TO PROSECUTIONS ARISING OUT OF CASES INSTITUTED BY PRIVATE LITIGANTS,
AND IS INAPPLICABLE TO CONTEMPTS ARISING OUT OF SUITS BROUGHT OR
PROSECUTED IN THE NAME OF, OR ON BEHALF OF, THE UNITED STATES.  THESE,
BY SEC. 24, ARE EXCEPTED FROM THE PROVISIONS OF SECS. 21, 22, 23, AND
25.  P. 108. 

2.  THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT DOES NOT PRECLUDE
CONGRESS FROM PRESCRIBING A HEAVIER PENALTY FOR AN OFFENSE INVOLVING
THE RIGHTS AND PROPERTY OF THE UNITED STATES THAN FOR A SIMILAR OFFENSE
INVOLVING THE RIGHTS OR PROPERTY OF A PRIVATE PERSON.  P. 109. 

HILL, WARDEN, V. UNITED STATES EX REL. WEINER. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. 

CERTIORARI, 299 U.S. 526, TO REVIEW A JUDGMENT AFFIRMING AN ORDER OF
THE DISTRICT COURT, 11 F.SUPP.  195, DISCHARGING THE RELATOR UPON A
WRIT OF HABEAS CORPUS. 

MR. JUSTICE SUTHERLAND DELIVERED THE OPINION OF THE COURT. 

THE RELATOR, WEINER, WAS CONVICTED IN A FEDERAL DISTRICT COURT OF
VIOLATING A DECREE ENTERED AGAINST HIM AND NUMEROUS OTHERS BY THAT
COURT IN A SUIT IN EQUITY BROUGHT BY THE UNITED STATES UNDER THE
SHERMAN ANTI-TRUST ACT, TITLE 15 U.S.C., SECS. 1, 2, 4.  HE, WITH
OTHERS, WAS CHARGED BY INFORMATION WITH THE COMMISSION OF SEVERAL
SPECIFIED ACTS IN VIOLATION OF THE DECREE, CONSTITUTING CRIMINAL
CONTEMPTS.  UPON A TRIAL BEFORE THE COURT SITTING WITHOUT A JURY, HE
WAS FOUND GUILTY AND SENTENCED FOR CERTAIN OF THE CONTEMPTS TO
IMPRISONMENT FOR SIX MONTHS IN THE HOUSE OF DETENTION, AND FOR OTHER
CONTEMPTS FOR TWO YEARS ADDITIONAL IN THE PENITENTIARY.  UPON HIS
APPLICATION AND CONSENT, THE FIRST PART OF THE SENTENCE WAS INCREASED
FROM SIX MONTHS IN THE HOUSE OF DETENTION TO A YEAR AND A DAY IN THE
PENITENTIARY, BUT TO RUN CONCURRENTLY WITH THE TWO YEARS'
IMPRISONMENT. 

ON JUNE 5, 1935, HE WAS COMMITTED TO THE PENITENTIARY.  AT THE END OF
ELEVEN MONTHS, HE APPLIED BY PETITION TO ANOTHER FEDERAL DISTRICT COURT
TO BE DISCHARGED ON HABEAS CORPUS, ON THE GROUND THAT THE FIRST COURT
WAS WITHOUT POWER TO SENTENCE HIM FOR A PERIOD OF MORE THAN SIX MONTHS;
AND, HAVING SERVED THAT LONG, THAT HE WAS ENTITLED TO BE SET AT
LIBERTY. 

THE DISTRICT COURT ACCEPTED THAT VIEW, GRANTED THE WRIT, AND ORDERED
THE RELATOR DISCHARGED.  11 F.SUPP.  195.  UPON APPEAL, THE COURT BELOW
AFFIRMED THE ORDER.  84 F.(2D) 27. 

THE CASE INVOLVES A CONSIDERATION OF SECS. 21, 22 AND 24 OF THE
CLAYTON ACT, TITLE 28 U.S.C. SECS. 386, 387 AND 389.*SECTION 21, SO FAR
AS PERTINENT, PROVIDES THAT ANY PERSON WHO SHALL WILLFULLY DISOBEY ANY
LAWFUL DECREE OF THE FEDERAL DISTRICT COURT BY DOING ANY ACT OR THING
THEREBY FORBIDDEN TO BE DONE BY HIM, IF OF A CHARACTER TO CONSTITUTE
ALSO A CRIMINAL OFFENSE UNDER ANY STATUTE OF THE UNITED STATES OR LAWS
OF ANY STATE IN WHICH THE ACT WAS COMMITTED, SHALL BE PROCEEDED AGAINST
AS THEREAFTER PROVIDED.  SECTION 22 PROVIDES FOR TRIAL BY THE COURT OR,
UPON DEMAND OF THE ACCUSED, BY A JURY.  IF FOUND GUILTY, PUNISHMENT IS
TO BE EITHER BY FINE OR IMPRISONMENT OR BOTH, IN THE DISCRETION OF THE
COURT, "BUT IN NO CASE SHALL THE FINE TO BE PAID TO THE UNITED STATES
EXCEED, IN CASE THE ACCUSED IS A NATURAL PERSON, THE SUM OF $1,000, NOR
SHALL SUCH IMPRISONMENT EXCEED THE TERM OF SIX MONTHS."  SECTION 24,
HOWEVER, PROVIDES THAT "NOTHING HEREIN CONTAINED (SECS. 21, 22, 23, 25)
SHALL BE CONSTRUED TO RELATE TO CONTEMPTS COMMITTED IN DISOBEDIENCE OF
ANY LAWFUL  ...  DECREE  ...  ENTERED IN ANY SUIT OR ACTION BROUGHT OR
PROSECUTED IN THE NAME OF, OR ON BEHALF OF, THE UNITED STATES, BUT THE
SAME, AND ALL OTHER CASES OF CONTEMPT NOT SPECIFICALLY EMBRACED WITHIN
LAW AND IN EQUITY PREVAILING ON OCTOBER 15, 1914."  IF SEC. 24 APPLIES,
THE SENTENCE WAS WITHIN THE STATUTORY AUTHORITY OF THE COURT. 

*SEC. 21.  ANY PERSON WHO SHALL WILLFULLY DISOBEY ANY LAWFUL WRIT,
PROCESS, ORDER, RULE, DECREE, OR COMMAND OF ANY DISTRICT COURT OF THE
UNITED STATES OR ANY COURT OF THE DISTRICT OF COLUMBIA BY DOING ANY ACT
OR THING THEREIN, OR THEREBY FORBIDDEN TO BE DONE BY HIM, IF THE ACT OR
THING SO DONE BY HIM BE OF SUCH CHARACTER AS TO CONSTITUTE ALSO A
CRIMINAL OFFENSE UNDER ANY STATUTE OF THE UNITED STATES OR UNDER THE
LAWS OF ANY STATE IN WHICH THE ACT WAS COMMITTED, SHALL BE PROCEEDED
AGAINST FOR HIS SAID CONTEMPT AS HEREINAFTER PROVIDED.  TITLE 28 U.S.C.
SEC. 386. 

SEC. 22....  IN ALL CASES WITHIN THE PURVIEW OF THIS ACT SUCH TRIAL
MAY BE BY THE COURT, OR, UPON DEMAND OF THE ACCUSED, BY A JURY;... 

IF THE ACCUSED BE FOUND GUILTY, JUDGMENT SHALL BE ENTERED
ACCORDINGLY, PRESCRIBING THE PUNISHMENT, EITHER BY FINE OR
IMPRISONMENT, OR BOTH, IN THE DISCRETION OF THE COURT.  SUCH FINE SHALL
BE PAID TO THE UNITED STATES OR TO THE COMPLAINANT OR OTHER PARTY
INJURED BY THE ACT CONSTITUTING THE CONTEMPT, OR MAY, WHERE MORE THAN
ONE IS SO DAMAGED, BE DIVIDED OR APPORTIONED AMONG THEM AS THE COURT
MAY DIRECT, BUT IN NO CASE SHALL THE FINE TO BE PAID TO THE UNITED
STATES EXCEED, IN CASE THE ACCUSED IS A NATURAL PERSON, THE SUM OF
$1,000, NOR SHALL SUCH IMPRISONMENT EXCEED THE TERM OF SIX MONTHS. 
TITLE 28 U.S.C. SEC. 387. 

SEC. 24.  NOTHING HEREIN CONTAINED (THAT IS IN SECS. 21, 22, 23, 25)
SHALL BE CONSTRUED TO RELATE TO CONTEMPTS COMMITTED IN THE PRESENCE OF
THE COURT, OR SO NEAR THERETO AS TO OBSTRUCT THE ADMINISTRATION OF
JUSTICE, NOR TO CONTEMPTS COMMITTED IN DISOBEDIENCE OF ANY LAWFUL WRIT,
PROCESS, ORDER, RULE, DECREE, OR COMMAND ENTERED IN ANY SUIT OR ACTION
BROUGHT OR PROSECUTED IN THE NAME OF, OR ON BEHALF OF, THE UNITED
STATES, BUT THE SAME, AND ALL OTHER CASES OF CONTEMPT NOT SPECIFICALLY
EMBRACED WITHIN SECTION TWENTY-ONE OF THIS ACT, MAY BE PUNISHED IN
CONFORMITY TO THE USAGES AT LAW AND IN EQUITY PREVAILING ON OCTOBER 15,
1914.  TITLE 28 U.S.C. SEC. 389. 

FIRST.  THE COURT BELOW HELD, AND RELATOR HERE CONTENDS, THAT THE
LIMITATION OF IMPRISONMENT TO SIX MONTHS IS NOT AFFECTED BY THE
PROVISIONS OF SEC. 24.  A SIMILAR QUESTION WAS BEFORE THIS COURT IN
UNITED STATES V. GOLDMAN, 277 U.S. 229, AND WAS THERE DECIDED CONTRARY
TO THE VIEWS OF THE COURT BELOW.  IN THAT CASE, AN INFORMATION WAS
PRESENTED BY THE UNITED STATES TO A FEDERAL DISTRICT COURT, CHARGING
GOLDMAN AND OTHERS WITH CRIMINAL CONTEMPTS COMMITTED BY ACTS IN
VIOLATION OF AN INJUNCTION DECREED BY THAT COURT IN AN EQUITY SUIT
BROUGHT BY THE UNITED STATES.  THE INFORMATION WAS DISMISSED ON THE
GROUND THAT UNDER SEC. 25 OF THE CLAYTON ACT, THE PROSECUTION WAS
BARRED BY THE STATUTE OF LIMITATIONS.  THIS COURT REVERSED.  SECTION 25
PROVIDES THAT NO PROCEEDING FOR CONTEMPT SHALL BE INSTITUTED UNLESS
BEGUN WITHIN ONE YEAR OF THE ACT COMPLAINED OF; BUT WE HELD THAT THE
SPECIFIC EXCEPTION CONTAINED IN SEC. 24 - "NOTHING HEREIN CONTAINED" -
APPLIED TO ALL PROVISIONS OF THE ACT RELATING TO PROSECUTIONS FOR
CRIMINAL CONTEMPTS, AND THEREFORE APPLIED TO SEC. 25, "AS WELL AS TO
THE OTHER SECTIONS," AND THAT THE ONE-YEAR LIMITATION PRESCRIBED BY
SEC. 25 WAS WITHOUT APPLICATION TO A CASE BROUGHT FOR THE DISOBEDIENCE
OF A DECREE ENTERED IN A SUIT PROSECUTED BY THE UNITED STATES. 

THAT DECISION CONTROLS HERE.  THE OBJECT OF SEC. 24 CLEARLY WAS TO
LIMIT THE APPLICATION OF THE PROVISIONS OF SEC. 22, AND THE OTHER
INSTITUTED BY PRIVATE LITIGANTS. 

SECOND.  WE FIND NOTHING IN THE FURTHER CONTENTION THAT THIS VIEW OF
THE STATUTE RESULTS IN A DISCRIMINATION IN THE MATTER OF PUNISHMENT SO
ARBITRARY AS TO DENY DUE PROCESS OF LAW TO RELATOR.  WHATEVER MAY BE
THE RESTRAINT AGAINST DISCRIMINATORY LEGISLATION IMPOSED BY THE DUE
PROCESS OF LAW CLAUSE OF THE FIFTH AMENDMENT, IT IS NOT ENCOUNTERED BY
THE LEGISLATION HERE.  THE CONSTITUTIONAL POWER OF CONGRESS TO
PRESCRIBE GREATER PUNISHMENT FOR AN OFFENSE INVOLVING THE RIGHTS AND
PROPERTY OF THE UNITED STATES THAN FOR A LIKE OFFENSE INVOLVING THE
RIGHTS OR PROPERTY OF A PRIVATE PERSON REASONABLY CANNOT BE DOUBTED. 
COMPARE PACE V. ALABAMA, 106 U.S. 583.  JUDGMENT REVERSED. 
..END :















MIDLAND CO. V. K.C. POWER CO., 300 U.S. 109 


NO. 217.  ARGUED DECEMBER 17, 1936.  - DECIDED FEBRUARY 1, 1937.  - 338
MO. 1141.  - 93 S.W.(2D) 954, AFFIRMED. 


1.  AS CONSTRUED BY THE STATE SUPREME COURT, WHICH CONSTRUCTION BINDS
THIS COURT UPON APPEAL, RATES ESTABLISHED PURSUANT TO THE PROVISIONS OF
THE PUBLIC SERVICE COMMISSION LAW OF MISSOURI (R.S., 1929, C. 33)
SUPERSEDE ALL EXISTING CONTRACT RATES.  P. 113. 

2.  A STATE HAS POWER TO ANNUL AND SUPERSEDE RATES PREVIOUSLY
ESTABLISHED BY CONTRACT BETWEEN PUBLIC UTILITIES AND THEIR CUSTOMERS. 
P. 113. 

3.  THE PUBLIC SERVICE COMMISSION LAW OF MISSOURI DOES NOT VIOLATE
THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION (ART. I, SEC. 10) OR
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, ALTHOUGH, AS
CONSTRUED BY THE STATE SUPREME COURT, EXISTING CONTRACT RATES ARE
ABROGATED THEREUNDER BY (1) THE MERE FILING, PURSUANT TO THE STATUTE,
OF A RATE SCHEDULE BY THE UTILITY; OR (2) THE FILING OF A SCHEDULE
PURSUANT TO A RATE ORDER PROMULGATED BY THE COMMISSION - IT APPEARING
THAT, UNDER THE STATUTE, THE PARTY NOW INSISTING ON ITS CONTRACT RATES
HAD OPPORTUNITY, OF WHICH IT DID NOT AVAIL ITSELF, TO SUPPORT THE
CONTRACT RATES AND TO TEST BEFORE THE COMMISSION AND IN THE STATE
SUPREME COURT THE VALIDITY OF THE FILED SCHEDULES.  PP. 112-114. 

4.  IT IS NOT ESSENTIAL THAT THERE BE SPECIFIC ADJUDICATION IN
RESPECT OF EXISTING CONTRACT RATES IN ORDER THAT THESE MAY BE
SUSPERSEDED BY THE STATE IN THE EXERCISE OF ITS POWER TO PRESCRIBE AND
ENFORCE REASONABLE AND NON-DISCRIMINATORY RATES.  P. 114. 

5.  THE FACT THAT THE MISSOURI LAW, AS CONSTRUED BY THE STATE SUPREME
COURT, PERMITS A UTILITY TO RECOVER THE DIFFERENCE BETWEEN RATES FIXED
BY CONTRACT AND THE HIGHER RATES ESTABLISHED PURSUANT TO THE STATUTE,
EVEN THOUGH THE SERVICE HAD BEEN FURNISHED AND PAID FOR IN ACCORDANCE
WITH THE CONTRACT BEFORE THE SUIT WAS BROUGHT, THE CUSTOMER HAVING
REFUSED TO PAY THE LAWFUL RATE, HELD NOT TO RENDER THE STATUTE
VIOLATIVE OF THE AFOREMENTIONED CLAUSES OF THE CONSTITUTION.  P. 114. 

MIDLAND REALTY CO. V. KANSAS CITY POWER & LIGHT CO. 

APPEAL FROM THE SUPREME COURT OF MISSOURI. 

APPEAL FROM A JUDGMENT IN FAVOR OF THE POWER & LIGHT COMPANY IN ITS
SUIT TO RECOVER THE DIFFERENCE BETWEEN RATES FIXED IN A CONTRACT WITH
THE REALTY COMPANY AND HIGHER RATES ESTABLISHED UNDER THE STATE PUBLIC
SERVICE COMMISSION LAW.  FROM A JUDGMENT OF THE TRIAL COURT WHICH
ALLOWED RECOVERY IN PART, BOTH PARTIES HAD APPEALED TO THE STATE
SUPREME COURT. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THE QUESTIONS FOR DECISION ARE WHETHER, AS CONSTRUED IN THIS CASE BY
THE HIGHEST COURT OF MISSOURI, THE STATUTES OF THAT STATE REGULATING
PUBLIC UTILITIES VIOLATE ART. I, SEC. 10 OF THE CONSTITUTION OF THE
UNITED STATES, DECLARING THAT "NO STATE SHALL  ...  PASS ANY  ...  LAW
IMPAIRING THE OBLIGATION OF CONTRACTS  ...," OR SEC. 1 OF THE
FOURTEENTH AMENDMENT DECLARING "NOR SHALL ANY STATE DEPRIVE ANY PERSON
OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW." 

APPELLEE WAS PLAINTIFF AND APPELLANT DEFENDANT BELOW.  THEY MADE A
CONTRACT WHEREBY THE FORMER FOR SPECIFIED RATES AGREED TO FURNISH THE
LATTER STEAM FOR HEATING ITS BUILDINGS IN KANSAS CITY FOR A TERM OF
FIVE YEARS ENDING AUGUST 31, 1913, WITH OPTION TO DEFENDANT TO EXTEND
THE CONTRACT FOR AN ADDITIONAL FIVE YEARS.  MARCH 17, 1913, THE STATE
PUBLIC SERVICE COMMISSION LAW WAS ENACTED.  FN1  MAY 29, FOLLOWING,
DEFENDANT EXERCISED ITS OPTION AND SO EXTENDED THE TERM OF THE CONTRACT
TO AUGUST 31, 1918. 

JUNE 28, 1917, PLAINTIFF IN PURSUANCE OF THE STATUTE  FN2  FILED WITH
THE COMMISSION A SCHEDULE OF STEAM HEATING RATES TO BECOME EFFECTIVE
AUGUST 1, 1917; THEY WERE HIGHER THAN THOSE SPECIFIED IN THE CONTRACT. 
THE CITY AND NUMEROUS USERS OTHER THAN DEFENDANT OBJECTED; THE
COMMISSION, WITHOUT ATTEMPTING TO APPORTION OPERATING EXPENSES AND
VALUES BETWEEN PLAINTIFF'S HEATING AND ELECTRIC SERVICE, FOUND THAT THE
RATES FILED WERE UNREASONABLY HIGH AND PRESCRIBED, AS JUST AND
REASONABLE, RATES LOWER THAN THOSE FILED BUT HIGHER THAN THE CONTRACT
RATES AND MADE THEM EFFECTIVE MARCH 1, 1918.  5 MO. P.S.C. 664. 
PLAINTIFF FILED A NEW SCHEDULE IN ACCORDANCE WITH THE COMMISSION'S
ORDER. 

JUNE 11, 1918, IT COMPLAINED THAT THESE RATES WERE CONFISCATORY.  THE
COMMISSION, AFTER APPORTIONING OPERATING EXPENSES AND VALUES BETWEEN
THE ELECTRICAL AND STEAM SERVICES, FOUND THE RATES "INADEQUATE, UNJUST
AND UNREASONABLY LOW," THAT DURING NONE OF THE TIME WAS "HEATING
REVENUE SUFFICIENT TO EVEN MEET THE FUEL EXPENSE ALONE," AND THAT
"HERETOFORE THE STEAM HEATING BUSINESS HAS BEEN CARRIED AT A LOSS, AND
THIS LOSS HAS BEEN BORNE EITHER BY THE LIGHT AND POWER CONSUMERS OR BY
THE COMPANY."  THEREUPON, IT ORDERED NEW AND HIGHER RATES EFFECTIVE
DECEMBER 1, 1919.  8 MO. P.S.C. 223, 292, 296.  THE FINDINGS AND ORDER
OF THE COMMISSION WERE APPROVED BY THE SUPREME COURT IN STATE EX REL.
CASE V. PUBLIC SERVICE COMM'N, 298 MO. 303; 249 S.W. 955. 

FOR STEAM FURNISHED DEFENDANT AFTER AUGUST 1, 1917, PLAINTIFF
REGULARLY SENT BILLS BASED ON THE RATES IT HAD FILED WITH THE
COMMISSION.  CLAIMING THE CONTRACT RATES STILL TO BE APPLICABLE,
DEFENDANT PAID AMOUNTS CALCULATED IN ACCORDANCE WITH THEM.  PLAINTIFF
GAVE DEFENDANT CREDIT FOR THE PAYMENTS IT MADE.  AFTER EXPIRATION OF
THE PERIOD COVERED BY THE CONTRACT AS EXTENDED, PLAINTIFF BROUGHT THIS
SUIT.  FOR STEAM FURNISHED AFTER AUGUST 1, 1917, AND BEFORE MARCH 1,
1918, IT SOUGHT TO RECOVER ON THE BASIS OF THE CHARGES SPECIFIED IN THE
FIRST SCHEDULE FILED.  FOR STEAM FURNISHED AFTER MARCH 1, 1918, TO THE
END OF THE CONTRACT TERM, IT SOUGHT TO RECOVER ON THE BASIS OF CHARGES
OF THE SCHEDULE PROMULGATED BY THE COMMISSION.  THE TRIAL COURT HELD
PLAINTIFF NOT ENTITLED TO RECOVER ON ITS CLAIM IN RESPECT OF THE FIRST
PERIOD BUT GAVE JUDGMENT IN ITS FAVOR IN RESPECT OF THE OTHER ONE. 
BOTH PARTIES APPEALED.  THE MISSOURI SUPREME COURT RULED THE CONTRACT
RATES NOT APPLICABLE, HELD PLAINTIFF ENTITLED TO RECOVER ON ITS CLAIM
IN RESPECT OF BOTH PERIODS AND DIRECTED THAT IT HAVE JUDGMENT FOR THE
SUMS CALCULATED ON THE BASIS OF THE SCHEDULES FILED WITH THE
COMMISSION. 

DEFENDANT'S CONTENTION IS NOT THAT THE STATE LACKED POWER BY
APPROPRIATE ACTION TO ESTABLISH AND ENFORCE JUST AND REASONABLE RATES
BUT THAT, AS AGAINST THE CONSTITUTIONAL PROVISIONS INVOKED, THE ACTION
TAKEN UNDER THE PUBLIC SERVICE COMMISSION LAW WAS NOT SUFFICIENT TO
ABROGATE THE CONTRACT RATES. 

SPECIFICALLY, ITS COMPLAINTS ARE THAT THE COURT CONSTRUED THE STATUTE
(1) TO MAKE (A) MERE FILING OF PLAINTIFF'S SCHEDULE AND (B) THE LATER
PROMULGATION OF A SCHEDULE BY THE COMMISSION EFFECTIVE TO ABROGATE THE
CONTRACT RATES AND (2) TO REQUIRE THAT, ALTHOUGH THE CONTRACT WAS IN
DUE TIME FULLY PERFORMED AND DEFENDANT PRIOR TO THE COMMENCEMENT OF THE
SUIT HAD PAID PLAINTIFF THE CONTRACT RATES, IT WAS BOUND TO PAY
ADDITIONAL AMOUNTS CALCULATED ON THE BASIS OF THE HIGHER RATES
SPECIFIED IN PLAINTIFF'S PUBLISHED SCHEDULES.  IT IS UPON THESE GROUNDS
THAT DEFENDANT CONTENDS THAT THE STATE LAW VIOLATES THE QUOTED CLAUSES
OF THE CONSTITUTION. 

THESE QUESTIONS ARE TO BE DECIDED UPON THE CONSTRUCTION THAT THE
STATE SUPREME COURT PUT UPON THE STATUTE.  AND THAT LAW IS TO BE TAKEN
AS IF IT DECLARED THAT RATES MADE IN ACCORDANCE WITH ITS PROVISIONS
SHALL SUPERSEDE ALL EXISTING CONTRACT RATES.  FN3  THERE IS HERE
INVOLVED NO QUESTION AS TO THE VALIDITY OF THE RATES PRIOR TO THE
PASSAGE OF THE STATUTE.  WITHOUT EXPRESSION OF OPINION, WE ASSUME THAT
THEN THE PARTIES WERE BOUND BY THE CONTRACT.  BUT THE STATE HAS POWER
TO ANNUL AND SUPERSEDE RATES PREVIOUSLY ESTABLISHED BY CONTRACT BETWEEN
UTILITIES AND THEIR CUSTOMERS.  FN4  IT HAS POWER TO REQUIRE SERVICE AT
NONDISCRIMINATORY RATES, TO PROHIBIT SERVICE AT RATES TOO LOW TO YIELD
THE COST RIGHTLY ATTRIBUTABLE TO IT,  FN5  AND TO REQUIRE UTILITIES TO
PUBLISH THEIR RATES AND TO ADHERE TO THEM.  FN6  UNDER THE CHALLENGED
STATUTE, DEFENDANT HAD OPPORTUNITY TO SUPPORT THE CONTRACT RATES AND TO
TEST BEFORE THE COMMISSION AND IN THE STATE SUPREME COURT - AS OTHERS
DID - THE VALIDITY OF THE FILED SCHEDULE.  FN7  IT FAILED TO DO SO.
AND IT HERE INSISTS THAT THE CONTRACTS COULD NOT BE ABROGATED "WITHOUT
A PROPER HEARING, FINDING AND ORDER OF THE COMMISSION WITH RESPECT
THERETO."  IT DOES NOT, AND REASONABLY IT COULD NOT, CONTEND THAT
IMMEDIATE EXERTION BY THE LEGISLATURE OF THE STATE'S POWER TO PRESCRIBE
AND ENFORCE REASONABLE AND NONDISCRIMINATORY RATES DEPENDS UPON OR IS
CONDITIONED BY SPECIFIC ADJUDICATION IN RESPECT OF EXISTING CONTRACT
RATES.  FN8  IT IS CLEAR THAT, AS AGAINST THOSE SPECIFIED IN THE
CONTRACT HERE INVOLVED, THE RATES FIRST FILED BY PLAINTIFF AND THOSE
PROMULGATED BY THE COMMISSION IN ACCORDANCE WITH THE STATUTE HAVE THE
SAME FORCE AND EFFECT AS IF DIRECTLY PRESCRIBED BY THE LEGISLATURE. 
FN9 

LACKING IN MERIT IS DEFENDANT'S CONTENTION THAT THE STATUTE VIOLATES
THE CLAUSES OF THE CONSTITUTION INVOKED BECAUSE HELD BY THE COURT TO
REQUIRE THAT, ALTHOUGH BEFORE THIS SUIT THE SERVICE HAD BEEN FURNISHED
AND PAID FOR IN ACCORDANCE WITH THE CONTRACT, DEFENDANT WAS BOUND TO
PAY MORE.  AS SHOWN ABOVE, THE RATES SPECIFIED IN THE SCHEDULES WERE
HELD APPLICABLE FROM AND AFTER THEIR RESPECTIVE EFFECTIVE DATES. 
DEFENDANT WAS NOT INJURED BY PLAINTIFF'S FAILURE TO WITHHOLD SERVICE OR
MORE PROMPTLY TO SUE FOR THE DIFFERENCE BETWEEN ITS LAWFUL CHARGES AND
THE AMOUNT PAID.  IT CANNOT DERIVE ANY ADVANTAGE FROM REFUSAL TO PAY. 
FN10 

PLAINLY, ENFORCEMENT OF THE RATES IN ACCORDANCE WITH THE STATUTE DID
NOT VIOLATE EITHER THE CONTRACT CLAUSE OF THE CONSTITUTION OR THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.  AFFIRMED. 

FN1  MISSOURI R.S., 1929, C. 33, SECS. 5121 ET SEQ. 

FN2  MISSOURI R.S., 1929, SECS. 5190(12), 5209. 

FN3  FULTON V. PUBLIC SERVICE COMM'N, 275 MO. 67; 204 S.W. 386;
SEDALIA V. PUBLIC SERVICE COMM'N, 275 MO. 201, 209; 204 S.W. 497;
KANSAS CITY BOLT & NUT CO. V. KANSAS CITY LIGHT & POWER CO., 275 MO.
529; 204 S.W. 1074; AFFIRMED 252 U.S. 571.  STATE EX REL. WASHINGTON
UNIVERSITY V. PUBLIC SERVICE COMM'N, 308 MO. 328, 342; 272 S.W. 971;
STATE EX REL. PUBLIC SERVICE COMM'N V. LATSHAW, 325 MO. 909, 917-918;
30 S.W.(2D) 105; STATE EX REL. KIRKWOOD V. PUBLIC SERVICE COMM'N, 330
MO. 507, 521; 50 S.W.(2D) 114. 

FN4  UNION DRY GOODS CO. V. GEORGIA PUBLIC SERVICE CORP., 248 U.S.
372.  PRODUCERS TRANSPORTATION CO. V. RAILROAD COMMISSION, 251 U.S.
228, 232.  KANSAS CITY BOLT & NUT CO. V. KANSAS CITY LIGHT & POWER CO.,
252 U.S. 571.  SUTTER BUTTE CANAL CO. V. RAILROAD COMMISSION, 279 U.S.
125, 137-138. 

FN5  PUBLIC SERVICE COMM'N V. UTILITIES CO., 289 U.S. 130, 135-136. 
CF. NORTHERN PACIFIC RY. CO. V. NORTH DAKOTA, 236 U.S. 585, 604. 

FN6  ARMOUR PACKING CO. V. UNITED STATES, 209 U.S. 56, 81. 
LOUISVILLE & NASHVILLE R. CO. V. MAXWELL, 237 U.S. 94, 97. 

FN7  MISSOURI R.S., 1929, SECS. 5191, 5232-5237.  SEE STATE EX REL.
WASHINGTON UNIVERSITY V. PUBLIC SERVICE COMM'N, 208 MO. 328; 272 S.W.
971. 

FN8  LOUISVILLE & NASHVILLE R. CO. V. MOTTLEY, 219 U.S. 467. 

FN9  PUBLIC SERVICE COMM'N V. PAVILION NATURAL GAS CO., 232 N.Y. 146,
150-151; 133 N.E. 427; NORTH HEMPSTEAD V. PUBLIC SERVICE CORP., 231
N.Y. 447, 450; 132 N.E. 144. 

FN10  LOUISVILLE & NASHVILLE R. CO. V. CENTRAL IRON CO., 265 U.S. 59,
65. 
..END :



















CUMMINGS V. DEUTSCHE BANK, 300 U.S. 115 


NO. 254.  ARGUED JANUARY 4, 5, 1937.  - DECIDED FEBRUARY 1, 1937.  - 65
APP. D.C. 297 - 83 F.(2D) 554, REVERSED. 


1.  A SUIT UNDER SEC. 9 OF THE TRADING WITH THE ENEMY ACT, AS AMENDED
BY SEC. 11 OF THE SETTLEMENT OF WAR CLAIMS ACT, AGAINST THE ATTORNEY
GENERAL (SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN) AND THE TREASURER
OF THE UNITED STATES, TO RECOVER PROPERTY SEIZED FROM A FORMER ENEMY
OWNER, IS A SUIT AGAINST THE UNITED STATES.  P. 118. 

2.  THE CONSENT OF THE UNITED STATES TO BE SO SUED WAS NOT WITHDRAWN
BY PUBLIC RESOLUTION NO. 53, OF JUNE 27, 1934.  ID. 

THIS PUBLIC RESOLUTION PROVIDES, INTER ALIA, THAT ALL DELIVERIES OF
MONEY OR PROPERTY AUTHORIZED OR DIRECTED BY THE STATUTES ABOVE CITED,
SHALL BE POSTPONED AND THE MONEY OR PROPERTY RESERVED, AS LONG AS
GERMANY REMAINS IN ARREARS IN PAYMENTS UNDER THE DEBT FUNDING AGREEMENT
BETWEEN GERMANY AND THE UNITED STATES, DATED JUNE 23, 1930, RESPECTING
GERMANY'S OBLIGATIONS ON ACCOUNT OF AWARDS OF THE MIXED CLAIMS
COMMISSION, ETC. 

3.  IN POSTPONING RESTORATION OF PROPERTY TO FORMER ENEMY OWNERS, AS
ALLOWED AND PROVIDED FOR BY THE SETTLEMENT OF WAR CLAIMS ACT, PUBLIC
RESOLUTION NO. 53, SUPRA, DID NOT INFRINGE THEIR RIGHTS UNDER THE FIFTH
AMENDMENT.  P. 120. 

4.  SEIZURES UNDER THE TRADING WITH THE ENEMY ACT DIVESTED THE ENEMY
OWNERS OF ALL RIGHT TO THE PROPERTY SEIZED AND VESTED ABSOLUTE TITLE IN
THE UNITED STATES.  ID. 

5.  THE FACT THAT CONGRESS MANIFESTED FROM THE BEGINNING ITS
INTENTION AFTER THE WAR TO DEAL JUSTLY WITH FORMER OWNERS OF SEIZED
ENEMY PROPERTY, AND BY RESTITUTION OR COMPENSATION TO AMELIORATE
HARDSHIP RESULTING FROM SUCH SEIZURES, DETRACTED NOTHING FROM THE TITLE
ACQUIRED BY THE UNITED STATES OR ITS POWER TO RETAIN OR DISPOSE OF THE
PROPERTY UPON SUCH TERMS AND CONDITIONS AS FROM TIME TO TIME CONGRESS
MIGHT DIRECT.  P. 120. 

6.  IN A SUIT UNDER THE SETTLEMENT OF WAR CLAIMS ACT, A FORMER ENEMY
OWNER COULD NOT GAIN TITLE TO THE PROPERTY CLAIMED, PRIOR TO FINAL
JUDGMENT.  P. 121. 

7.  THE GRANT OF THE PRIVILEGE OF BECOMING REENTITLED TO SEIZED
PROPERTY, EXTENDED TO FORMER ENEMY OWNERS UPON SPECIFIED CONDITIONS BY
THE SETTLEMENT OF WAR CLAIMS ACT, WAS A MATTER OF GRACE AND WAS SUBJECT
TO WITHDRAWAL BY CONGRESS.  P. 122. 

CUMMINGS, ATTORNEY GENERAL, ET AL. V. DEUTSCHE BANK UND
DISCONTOGESELLSCHAFT. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. 

CERTIORARI, 299 U.S. 527, TO REVIEW THE REVERSAL OF A JUDGMENT
DISMISSING A SUIT FOR THE RECOVERY OF PROPERTY SEIZED AND HELD UNDER
THE TRADING WITH THE ENEMY ACT. 

MR. JUSTICE BUTLER DELIVERED THE OPINION OF THE COURT. 

THIS IS A SUIT IN EQUITY BROUGHT OCTOBER 3, 1934, BY RESPONDENT IN
THE SUPREME COURT OF THE DISTRICT OF COLUMBIA  FN1  AGAINST PETITIONERS
PRAYING A DECREE DIRECTING DELIVERY OF PROPERTY SEIZED BY THE ALIEN
PROPERTY CUSTODIAN AND WITHHELD BY PETITIONERS UNDER THE TRADING WITH
THE ENEMY ACT FROM "DIRECTION DER DISCONTO GESELLSCHAFT," AN ALIEN
ENEMY.  PETITIONERS MOVED TO DISMISS THE BILL UPON THE GROUND THAT THE
COURT HAD NO JURISDICTION TO ENTERTAIN IT BECAUSE BY PUBLIC RESOLUTION
NO. 53 OF JUNE 27, 1934, 48 STAT. 1267, THE RETURN OF THE MONEY AND
PROPERTY SOUGHT HAS BEEN POSTPONED.  THE COURT SUSTAINED THE MOTION AND
DISMISSED THE BILL.  THE COURT OF APPEALS REVERSED.  65 APP. D.C. 297;
83 F.(2D) 554.  THIS COURT GRANTED A WRIT OF CERTIORARI. 

IN SUBSTANCE THE BILL ALLEGES:  RESPONDENT, A GERMAN CORPORATION, WAS
CREATED IN 1929 BY CONSOLIDATION OF DEUTSCHE BANK AND DIRECTION DER
DISCONTO GESELLSCHAFT.  AFTER THE MERGER, THE ASSETS OF THE LATTER
BECAME RESPONDENT'S PROPERTY.  THE CUSTODIAN DETERMINED THE DISCONTO
GESELLSCHAFT TO BE AN ALIEN ENEMY AND SEIZED ITS MONEY AND PROPERTY IN
THIS COUNTRY, WHICH WAS HELD BY THE CUSTODIAN AND DEPOSITED IN THE
TREASURY.  RESPONDENT, ACTING UNDER THE SETTLEMENT OF WAR CLAIMS ACT
AND IN ACCORDANCE WITH THE CUSTODIAN'S RULES AND REGULATIONS, FILED
NOTICE OF CLAIM TO THE PROPERTY AND APPLIED TO THE PRESIDENT FOR ITS
RETURN.  BEFORE COMMENCEMENT OF THIS SUIT, THE CUSTODIAN FOUND IT
ENTITLED TO THE PROPERTY.  IN MARCH, 1931, SPRUNT AND OTHERS BROUGHT AN
ACTION IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA AGAINST
RESPONDENT; A WARRANT OF ATTACHMENT ISSUED AND, PURSUANT TO IT, THE
MARSHAL LEVIED ON THE MONEY AND PROPERTY SO HELD; BECAUSE OF THE
ATTACHMENT PETITIONERS REFUSED TO DELIVER IT TO RESPONDENT AND RETAINED
CUSTODY.  IN MAY, 1934, THAT ACTION WAS DISCONTINUED BY PLAINTIFFS AND
THE ATTACHMENT WAS RELEASED.  JULY 1, 1934, THE OFFICE OF CUSTODIAN
CEASED; HIS POWERS AND DUTIES WERE TRANSFERRED TO THE DEPARTMENT OF
JUSTICE; ALL MONEY AND PROPERTY HELD BY OR IN TRUST FOR HIM WAS
TRANSFERRED TO THE ATTORNEY GENERAL.  BEFORE COMMENCEMENT OF THIS SUIT,
RESPONDENT DEMANDED AND PETITIONERS REFUSED DELIVERY OF THAT HERE IN
QUESTION.  THEIR REFUSAL WAS BASED ON PUBLIC RESOLUTION NO. 53. 

THE QUESTIONS FOR DECISION ARE WHETHER THAT RESOLUTION WITHDREW FROM
THE TRIAL COURT JURISDICTION TO ENTERTAIN THE BILL, AND WHETHER IT
DEPRIVES RESPONDENT OF ITS PROPERTY WITHOUT DUE PROCESS OF LAW IN
CONTRAVENTION OF THE FIFTH AMENDMENT. 

1.  THIS IS IN SUBSTANCE A SUIT AGAINST THE UNITED STATES.  BANCO
MEXICANO V. DEUTSCHE BANK, 263 U.S. 591, 603.  BECKER STEEL CO. V.
CUMMINGS, 296 U.S. 74, 78.  BY THE TRADING WITH THE ENEMY ACT OF 1917,
SEC. 9(A)(B)(C),  FN2  AS AMENDED BY THE SETTLEMENT OF WAR CLAIMS ACT,
SEC. 11,  FN3  THE UNITED STATES CONSENTED, IN RESPECT OF CLAIMS SUCH
AS THE ONE HERE IN QUESTION, TO BE SUED IN THE SUPREME COURT OF THE
DISTRICT OF COLUMBIA.  PETITIONERS MAINTAIN RESOLUTION NO. 53 WITHDREW
THAT CONSENT. 

THE RECITALS OF THAT RESOLUTION DISCLOSE REASONS FOR ITS ADOPTION. 
THEY ARE:  A JOINT RESOLUTION OF JULY 2, 1921,  FN4  DECLARED THAT
PROPERTY OF GERMAN NATIONALS HELD UNDER THE TRADING WITH THE ENEMY ACT
SHOULD BE RETAINED AND NO DISPOSITION THEREOF MADE, EXCEPT AS
SPECIFICALLY PROVIDED BY LAW, UNTIL THE GERMAN GOVERNMENT SHOULD MAKE
SUITABLE PROVISION FOR THE SATISFACTION OF CLAIMS OF AMERICAN NATIONALS
AGAINST IT.  THE TREATY OF BERLIN, AUGUST 25, 1921, FN5  ACCORDED TO
THE UNITED STATES ALL RIGHTS AND ADVANTAGES SPECIFIED IN THE RESOLUTION
OF JULY 2, 1921, INCLUDING THOSE STIPULATED FOR ITS BENEFIT IN THE
TREATY OF VERSAILLES,  FN6  NOT RATIFIED BY THE UNITED STATES.  THE
AGREEMENT OF AUGUST 10, 1922,  FN7  ESTABLISHED A MIXED CLAIMS
COMMISSION TO ADJUDICATE CLAIMS OF AMERICAN NATIONALS AGAINST GERMANY. 
AND, IN THE DEBT-FUNDING AGREEMENT OF JUNE 23, 1930,  FN8  GERMANY
AGREED TO PAY THE UNITED STATES ON ACCOUNT OF ITS AWARDS 40,800,000
REICHMARKS IN EACH YEAR UNTIL 1981.  GERMANY WAS IN ARREARS UNDER THAT
AGREEMENT AND HAD FAILED TO MAKE PROVISIONS FOR SATISFACTION OF CLAIMS
ESTABLISHED AGAINST IT. 

THEREFORE, THE RESOLUTION DECLARED:  SO LONG AS GERMANY IS IN ARREARS
IN RESPECT OF OBLIGATIONS MENTIONED, ALL DELIVERIES OF PROPERTY
AUTHORIZED TO BE MADE UNDER THE TRADING WITH THE ENEMY ACT OF 1917, AS
AMENDED, OR THE SETTLEMENT OF WAR CLAIMS ACT OF 1928 AS AMENDED,
"WHETHER OR NOT A JUDGMENT OR DECREE HAS BEEN ENTERED WITH RESPECT
THERETO, SHALL BE POSTPONED AND THE MONEY OR PROPERTY, OR THE INCOME,
ISSUES, PROFITS, AND/OR AVAILS THEREOF RESERVED  ...  PROVIDED  ...
THAT THE PRESIDENT MAY, IN HIS SOLE DISCRETION, REMOVE THE RESTRICTION
AS TO ANY OF THE CASES  ...  IN RELATION TO WHICH  ...  DELIVERIES HAVE
BEEN POSTPONED UNDER THIS RESOLUTION  ..." 

THE CONSENT OF THE UNITED STATES TO BE SUED WAS REVOCABLE AT ANY
TIME.  LYNCH V. UNITED STATES, 292 U.S. 571, 581.  IT HAS NOT BEEN
EXPRESSLY RECALLED AND, UNLESS BY RESOLUTION NO. 53 IMPLIEDLY
WITHDRAWN, THE SUPREME COURT OF THE DISTRICT HAD JURISDICTION TO
ENTERTAIN THE COMPLAINT.  CONTINUATION OF THE CONSENT WAS NOT
INCONSISTENT WITH THE PURPOSE OF THE RESOLUTION.  THE MEASURE WAS
ADOPTED BECAUSE OF GERMANY'S DEFAULT WHICH, AS INDICATED BY THE
CONTEXT, WAS ASSUMED NOT TO BE PERMANENT.  IT WAS INTENDED ONLY
TEMPORARILY TO POSTPONE FINAL DISPOSITION OF THE SEIZED PROPERTY,
MERELY TO STAY DELIVERIES WHETHER DIRECTED BY ADMINISTRATIVE ORDER OR
JUDGMENT OF A COURT.  CLAIMANTS MAY HAVE DELIVERIES WHENEVER GERMANY
CEASES TO BE IN ARREARS.  FULFILLMENT OF HER PROMISES WILL END THE
RESTRAINT IMPOSED BY THE RESOLUTION.  POSTPONEMENT OF DELIVERIES DOES
NOT SUGGEST INTENTION TO WITHDRAW CONSENT TO BE SUED.  IT WAS GIVEN AND
LONG CONTINUED IN ORDER TO SAFEGUARD FORMER OWNERS AGAINST ERRONEOUS
ADMINISTRATION OF MEASURES ENACTED FOR THEIR BENEFIT.  NEITHER NEED NOR
REASON HAS BEEN SUGGESTED FOR CHANGE OF POLICY IN THAT REGARD.  IN THE
ABSENCE OF UNMISTAKABLE EXPRESSION OF PURPOSE TO THAT END, IT MAY NOT
REASONABLY BE INFERRED THAT CONGRESS INTENDED TO WITHDRAW THAT
PROTECTION.  CF. BECKER STEEL CO. V. CUMMINGS, SUPRA, 80.  WE FIND
NOTHING TO WARRANT THAT INFERENCE.  DISTRICT OF COLUMBIA V. ESLIN, 183
U.S. 62, GIVES NO SUPPORT TO PETITIONERS' CONTENTION.  CLEARLY THE
TRIAL COURT HAD JURISDICTION TO ENTERTAIN THE COMPLAINT. 

2.  PUBLIC RESOLUTION NO. 53 IS NOT REPUGNANT TO THE FIFTH
AMENDMENT.  BY EXERTION OF THE WAR POWER, AND UNTRAMMELED BY THE DUE
PROCESS OR JUST COMPENSATION CLAUSE, CONGRESS ENACTED LAWS DIRECTING
SEIZURE, USE AND DISPOSITION OF PROPERTY IN THIS COUNTRY BELONGING TO
SUBJECTS OF THE ENEMY.  ALIEN ENEMY OWNERS WERE DIVESTED OF EVERY RIGHT
IN RESPECT OF THE MONEY AND PROPERTY SEIZED AND HELD BY THE CUSTODIAN
UNDER THE TRADING WITH THE ENEMY ACT.  UNITED STATES V. CHEMICAL
FOUNDATION, 272 U.S. 1, 9-11.  WOODSON V. DEUTSCHE, ETC. VORMALS, 292
U.S. 449, 454.  THE TITLE ACQUIRED BY THE UNITED STATES WAS ABSOLUTE
AND UNAFFECTED BY DEFINITION OF DUTIES OR LIMITATIONS UPON THE POWER OF
THE CUSTODIAN OR THE TREASURER OF THE UNITED STATES.  CONGRESS RESERVED
TO ITSELF FREEDOM AT ANY TIME TO DISPOSE OF THE PROPERTY AS DEEMED
EXPEDIENT AND RIGHT UNDER CIRCUMSTANCES THAT MIGHT ARISE DURING AND
AFTER THE WAR.  LEGISLATIVE HISTORY AND TERMS OF MEASURES PASSED IN
RELATION TO ALIEN ENEMY PROPERTY CLEARLY DISCLOSE THAT FROM THE
BEGINNING CONGRESS INTENDED AFTER THE WAR JUSTLY TO DEAL WITH FORMER
OWNERS AND, BY RESTITUTION OR COMPENSATION IN WHOLE OR PART, TO
AMELIORATE HARDSHIPS FALLING UPON THEM AS A RESULT OF THE SEIZURE OF
THEIR PROPERTY.  FN9  BUT THAT INTENTION DETRACTED NOTHING FROM TITLE
ACQUIRED BY THE UNITED STATES OR ITS POWER TO RETAIN OR DISPOSE OF THE
PROPERTY UPON SUCH TERMS AND CONDITIONS AS FROM TIME TO TIME CONGRESS
MIGHT DIRECT.  AS THE TAKING LEFT IN ENEMY OWNERS NO BENEFICIAL RIGHT
TO, OR INTEREST IN, THE PROPERTY, THE UNITED STATES DID NOT TAKE OR
HOLD AS TRUSTEE FOR THEIR BENEFIT. 

RESPONDENT MAINTAINS THAT SEC. 11 OF THE SETTLEMENT OF WAR CLAIMS ACT
OF 1928, AMENDING SEC. 9 OF THE TRADING WITH THE ENEMY ACT OF 1917 AS
AMENDED, VESTED IN FORMER OWNERS AN IMMEDIATE RIGHT TO THE RETURN OF
THEIR PROPERTY AND THAT, HAVING COMPLIED WITH THE PROVISIONS OF THE
ACT, THEY CANNOT BE DEPRIVED OF THAT RIGHT.  IT ARGUES THAT ITS
INTEREST IN THE PROPERTY TAKEN WAS NOT "COMPLETELY AND IRREVOCABLY
DESTROYED" AND THAT THE SETTLEMENT OF WAR CLAIMS ACT WAS AN ACT UNDER
WHICH IT "COULD AND DID OBTAIN A VESTED INTEREST IN ITS PROPERTY."  TO
THE EXTENT THAT THE ARGUMENT RESTS UPON THE ASSUMPTION THAT THE TAKING
DID NOT DIVEST ENEMY OWNERS OF EVERY RIGHT OR THAT THE UNITED STATES
DID NOT ACQUIRE ABSOLUTE TITLE, IT IS FALLACIOUS AND NEED NOT BE
NOTICED. 

THE SETTLEMENT OF WAR CLAIMS ACT WAS NOT A CONVEYANCE AND DID NOT
GRANT FORMER OWNERS ANY RIGHT OR TITLE TO, OR INTEREST IN, THE MONEY OR
PROPERTY TAKEN BY THE CUSTODIAN.  AS AMENDED BY IT, PERTINENT
PROVISIONS OF THE TRADING WITH THE ENEMY ACT ARE INDICATED IN THE
MARGIN.  FN10  NO CHANGE OF TITLE WAS EFFECTED BY THAT ACT; AND IN
PROCEEDINGS UNDER IT NONE TAKES PLACE BEFORE DELIVERY TO CLAIMANT.  AS
THE UNITED STATES OWNED ALL, CLAIMANT'S CONSENT TO POSTPONEMENT OF
DELIVERY OF PART DID NOT IMPROVE ITS POSITION AS TO THE REST.  THE
PRESIDENT DID NOT ORDER DELIVERY.  ACTION BY HIM WAS NEITHER A
CONDITION PRECEDENT NOR A BAR TO SUIT.  THE STATUTE, SEC. 9(A),
REQUIRED THE MONEY AND PROPERTY TO BE RETAINED BY THE CUSTODIAN OR
TREASURER UNTIL FINAL JUDGMENT FOR CLAIMANT SHOULD BE SATISFIED BY
DELIVERY, OR UNTIL FINAL JUDGMENT AGAINST CLAIMANT.  IT IS CLEAR THAT
WHEN THE RESOLUTION WAS ADOPTED RESPONDENT HAD NEITHER TITLE NOR VESTED
RIGHT TO HAVE DELIVERY. 

THE GRANT TO FORMER ALIEN ENEMY OWNERS OF THE PRIVILEGE OF BECOMING
ENTITLED UPON CONDITIONS SPECIFIED TO HAVE RETURNED TO THEM THE
PROPERTY OF WHICH THEY HAD BEEN DEPRIVED BY EXERTION OF THE WAR POWER
OF THE UNITED STATES WAS MADE BY THE CONGRESS IN MITIGATION OF THE
TAKING AND IN RECOGNITION OF "THE HUMANE AND WISE POLICY OF MODERN
TIMES."  BROWN V. UNITED STATES, 8 CRANCH 110, 123.  IN UNITED STATES
V. WHITE DENTAL CO., 274 U.S. 398, IT APPEARS THAT DURING THE WAR THE
GERMAN GOVERNMENT SEQUESTERED THE PROPERTY OF A GERMAN CORPORATION
WHICH, THROUGH OWNERSHIP OF ALL ITS CAPITAL STOCK, WAS CONTROLLED BY AN
AMERICAN CORPORATION.  SPEAKING OF THE TAKING WE SAID (PP. 402-403):
"WHAT WOULD ULTIMATELY COME BACK TO IT (THE AMERICAN OWNER), AS THE
EVENT PROVED, MIGHT BE SECURED NOT AS A MATTER OF RIGHT, BUT AS A
MATTER EITHER OF GRACE TO THE VANQUISHED OR EXACTION BY THE VICTOR  ...
IT WOULD REQUIRE A HIGH DEGREE OF OPTIMISM TO DISCERN IN THE SEIZURE
OF ENEMY PROPERTY BY THE GERMAN GOVERNMENT IN 1918 MORE THAN A REMOTE
HOPE OF ULTIMATE SALVAGE FROM THE WRECK OF THE WAR."  WE THINK IT CLEAR
THAT THE GRANT BY THE SETTLEMENT OF WAR CLAIMS ACT WAS MADE AS A MATTER
OF GRACE AND SO WAS SUBJECT TO WITHDRAWAL BY CONGRESS.  UNITED STATES
V. TELLER, 107 U.S. 64, 68.  FRISBIE V. UNITED STATES, 157 U.S. 160,
166.  LYNCH V. UNITED STATES, SUPRA, 577.  THE RESOLUTION DOES NOT
INFRINGE THE FIFTH AMENDMENT.  REVERSED. 

FN1  NOW THE "DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF
COLUMBIA."  ACT OF JUNE 25, 1936, 49 STAT. 1921. 

FN2  ACT OF OCTOBER 6, 1917, SEC. 9, 40 STAT. 419, AS AMENDED BY
ACTS:  JULY 11, 1919, 41 STAT. 35; JUNE 5, 1920, 41 STAT. 977; FEBRUARY
27, 1921, C. 76, 41 STAT. 1147; DECEMBER 21, 1921, C. 13, 42 STAT. 351;
DECEMBER 27, 1922, C. 13, 42 STAT. 1065; MARCH 4, 1923, SEC. 1, 42
STAT. 1511; MAY 7, 1926, C. 252, 44 STAT. 406. 

FN3  ACT OF MARCH 10, 1928, 45 STAT. 270. 

FN4  42 STAT. 105. 

FN5  42 STAT. 1939. 

FN6  SEN. DOC. NO. 348, 67TH CONG., 4TH SESS., P. 3329. 

FN7  42 STAT. 2200. 

FN8  REPORT OF THE SECRETARY OF THE TREASURY, 1930, P. 341. 

FN9  SEN. REP. NO. 113, 65TH CONG., 1ST SESS. TRADING WITH THE ENEMY
ACT OF OCTOBER 6, 1917, SEC. 12, 40 STAT. 423.  PUBLIC RESOLUTION NO.
8, JULY 2, 1921, SEC. 5, 42 STAT. 106.  CONG. REC., VOL. 61, PART 4, P.
3249.  WINSLOW ACT OF MARCH 4, 1923, SEC. 2, 42 STAT. 1516, ADDING SEC.
23 TO TRADING WITH THE ENEMY ACT.  SEN. REP. NO. 273, 70TH CONG., 1ST
SESS., PP. 12-13.  SETTLEMENT OF WAR CLAIMS ACT OF MARCH 10, 1928, 45
STAT. 254. 

FN10  SECTION 9(B) OF THE TRADING WITH THE ENEMY ACT, AS AMENDED BY
SEC. 11 OF THE SETTLEMENT OF WAR CLAIMS ACT, 45 STAT. 270 - IN
SUBSTANCE SO FAR AS PERTINENT HERE - DECLARES THAT IF THE PRESIDENT
SHALL DETERMINE THAT THE OWNER AT THE TIME OF THE TAKING WAS A GERMAN
CORPORATION AND THAT WRITTEN CONSENT (PROVIDED FOR IN SUBSECTION (M) OF
SEC. 9 AS AMENDED) TO POSTPONEMENT OF RETURN OF 20 PERCENT OF THE MONEY
OR PROPERTY HAS BEEN FILED, THEN THE PRESIDENT WITHOUT ANY APPLICATION
BEING MADE THEREFOR "MAY ORDER THE PAYMENT, CONVEYANCE, TRANSFER,
ASSIGNMENT, OR DELIVERY OF SUCH MONEY OR OTHER PROPERTY HELD BY THE
ALIEN PROPERTY CUSTODIAN OR BY THE TREASURER OF THE UNITED STATES" TO
THE OWNER FROM WHOM TAKEN.    SECTION 9(C) DECLARES THAT ANY PERSON
WHOSE PROPERTY THE PRESIDENT IS AUTHORIZED TO RETURN UNDER THE
PROVISIONS OF SUBSECTION (B)(AND PLAINTIFF'S PREDECESSOR IS SUCH A
PERSON) MAY SERVE NOTICE OF CLAIM FOR THE RETURN OF THE MONEY OR
PROPERTY TAKEN FROM HIM AS PROVIDED IN SUBSECTION 9(A)(WHICH RELATES TO
CLAIMS BY OTHERS THAN ENEMIES FOR PROPERTY TAKEN FROM THEM BY THE
CUSTODIAN) AND THEREAFTER "MAY MAKE APPLICATION TO THE PRESIDENT FOR
ALLOWANCE OF SUCH CLAIM AND/OR MAY INSTITUTE SUIT IN EQUITY TO RECOVER
SUCH MONEY OR OTHER PROPERTY, AS PROVIDED IN SAID SUBSECTION, AND WITH
LIKE EFFECT.  THE PRESIDENT OR THE COURT, AS THE CASE MAY BE, MAY MAKE
THE SAME DETERMINATIONS WITH RESPECT TO CITIZENSHIP AND OTHER RELEVANT
FACTS THAT THE PRESIDENT IS AUTHORIZED TO MAKE UNDER THE PROVISIONS OF
SUBSECTION (B) HEREOF." 

AND SEC. 9(A) PROVIDES THAT ANY PERSON NOT AN ENEMY OR ALLY OF AN
ENEMY CLAIMING MONEY OR PROPERTY TAKEN BY THE CUSTODIAN MAY FILE WITH
HIM A NOTICE OF CLAIM UNDER OATH AND IN FORM AND SUBSTANCE AS REQUIRED;
AND THE PRESIDENT, IF APPLICATION IS MADE BY CLAIMANT, MAY ORDER THE
PAYMENT OR DELIVERY TO CLAIMANT OF THE MONEY OR PROPERTY SO HELD BY THE
CUSTODIAN OR TREASURER.  IF THE PRESIDENT SHALL NOT SO ORDER WITHIN 60
DAYS OR IF THE CLAIMANT SHALL HAVE FILED THE REQUIRED NOTICE AND MADE
NO APPLICATION, THEN CLAIMANT MAY INSTITUTE A SUIT IN EQUITY "TO
ESTABLISH THE INTEREST, RIGHT, TITLE  ...  SO CLAIMED, AND IF SO
ESTABLISHED THE COURT SHALL ORDER THE PAYMENT, CONVEYANCE, TRANSFER,
ASSIGNMENT, OR DELIVERY TO SAID CLAIMANT OF THE MONEY OR OTHER PROPERTY
SO HELD BY THE ALIEN PROPERTY CUSTODIAN OR BY THE TREASURER OF THE
UNITED STATES OR THE INTEREST THEREIN TO WHICH THE COURT SHALL
DETERMINE SAID CLAIMANT IS ENTITLED.  IF SUIT SHALL BE SO INSTITUTED,
THEN SUCH MONEY OR PROPERTY SHALL BE RETAINED IN THE CUSTODY OF THE
ALIEN PROPERTY CUSTODIAN, OR IN THE TREASURY OF THE UNITED STATES, AS
PROVIDED IN THIS ACT, AND UNTIL ANY FINAL JUDGMENT OR DECREE WHICH
SHALL BE ENTERED IN FAVOR OF THE CLAIMANT SHALL BE FULLY SATISFIED BY
PAYMENT OR CONVEYANCE, TRANSFER, ASSIGNMENT, OR DELIVERY BY THE
DEFENDANT, OR BY THE ALIEN PROPERTY CUSTODIAN, OR TREASURER OF THE
UNITED STATES ON ORDER OF THE COURT, OR UNTIL FINAL JUDGMENT OR DECREE
SHALL BE ENTERED AGAINST THE CLAIMANT OR SUIT OTHERWISE TERMINATED." 

MR. JUSTICE ROBERTS TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE. 
..END :





















RICHMOND CORP. V. WACHOVIA BANK, 300 U.S. 124 


NO. 235.  ARGUED JANUARY 4, 1937.  - DECIDED FEBRUARY 1, 1937.  - 210
N.C. 29 - 185 S.E. 482, AFFIRMED. 


1.  A NORTH CAROLINA STATUTE PROVIDING THAT WHEN THE MORTGAGEE, PAYEE,
OR OTHER HOLDER OF AN OBLIGATION SECURED BY REAL ESTATE CAUSES A SALE
OF THE PROPERTY BY A TRUSTEE, BECOMES THE PURCHASER FOR A SUM LESS THAN
THE AMOUNT OF THE DEBT AND AFTERWARDS BRINGS AN ACTION FOR THE
DEFICIENCY, THE DEFENDANT MAY SHOW, BY WAY OF DEFENSE AND SET-OFF, THAT
THE PROPERTY SOLD WAS FAIRLY WORTH THE AMOUNT OF THE DEBT OR THAT THE
SUM BID WAS SUBSTANTIALLY LESS THAN THE TRUE VALUE OF THE PROPERTY, AND
THUS DEFEAT THE CLAIM IN WHOLE OR IN PART, HELD VALID IN APPLICATION TO
NOTES SECURED BY DEED OF TRUST EXECUTED PRIOR TO THE PASSAGE OF THE
LAW.  P. 129. 

2.  THE OBLIGATION OF A CONTRACT IS NOT IMPAIRED BY A LAW LIMITING
THE REMEDY, IF A REMEDY ADEQUATE FOR ENFORCING THE OBLIGATION REMAINS
OR IS SUBSTITUTED.  P. 128. 

RICHMOND MORTGAGE & LOAN CORP. V. WACHOVIA BANK & TRUST CO. ET AL.,
EXECUTORS. 

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA. 

IN AN ACTION TO COLLECT A BALANCE DUE ON A MORTGAGE DEBT, THE
PLAINTIFF, APPELLANT HERE, WAS DEFEATED IN A GENERAL COUNTY COURT IN
NORTH CAROLINA.  THE JUDGMENT WAS AFFIRMED BY THE SUPERIOR COURT, WHOSE
JUDGMENT WAS IN TURN AFFIRMED BY THE SUPREME COURT OF THE STATE. 

THE PARTIES CONTRACTED WITH REFERENCE TO THE LAWS THEN IN EXISTENCE
AND SUCH LAWS ENTER INTO AND FORM PART OF THE CONTRACT.  THIS IS TRUE
OF THE LAWS PROVIDING REMEDIES TO ENFORCE PERFORMANCE.  HOME BLDG. &
LOAN ASSN. V. BLAISDELL, 290 U.S. 398; UNITED STATES EX REL. VON
HOFFMAN V. QUINCY, 4 WALL.  535; STURGES V. CROWNINSHIELD, 4 WHEAT. 
122; GREEN V. BIDDLE, 8 WHEAT.  1; BATEMAN V. STERRETT, 201 N.C. 59;
GREEN V. ASHEVILLE, 199 N.C. 516; TRUST COMPANY V. HUDSON, 200 N.C.
688. 

THE ACT IN QUESTION CHANGED THE LAW OF NORTH CAROLINA, WHEREBY THE
BENEFICIARY IN A DEED OF TRUST, AFTER FORECLOSURE UNDER POWER OF SALE,
IS REQUIRED TO ACCEPT THE FAIR VALUE OF THE PROPERTY AS PAYMENT ON THE
INDEBTEDNESS IN LIEU OF RECOVERY OF MONEY JUDGMENT.  IN RE CRYSTAL ICE
& FUEL CO., 283 FED. 1007; RICHMOND MORTGAGE & LOAN CORP. V. BANK, 210
N.C. 29; JONES V. WILLIAMS, 155 N.C. 179; KOONCE V. FORT, 204 N.C. 426;
WOLTZ V. DEPOSIT CO., 206 N.C. 239; CHADBOURN V. JOHNSTON, 119 N.C.
282; DAVIS V. LIFE INSURANCE CO., 197 N.C. 617; HAYWOOD V. BANK, 207
N.C. 695; NORTH CAROLINA SESSION LAWS, 1933, C. 275; NORTH CAROLINA
CODE, SEC. 2593(B), (C), (D), (E), AND (F). 

THIS LAW, WHILE ACTING ONLY ON THE REMEDY, IMPAIRED SUBSTANTIAL
RIGHTS UNDER THE CONTRACT, AND THEREFORE IS UNCONSTITUTIONAL AS APPLIED
TO THIS CASE.  STURGES V. CROWNINSHIELD, 4 WHEAT.  122; MCCRACKEN V.
HAYWARD, 2 HOW.  608; HOME BLDG. & LOAN ASSN. V. BLAISDELL, 290 U.S.
398; PLANTERS BANK V. SHARP, 6 HOW.  301; HAYWOOD V. BANK, 207 N.C.
695; WORTHEN CO. V. KAVANAUGH, 295 U.S. 56; ANTONI V. GREENHOW, 107
U.S. 769; BRONSON V. KINZIE, 1 HOW.  311; HOWARD V. BUGBEE, 24 HOW. 
461; WALKER V. WHITEHEAD, 16 WALL.  314; EDWARDS V. KEARZEY, 96 U.S.
595; BARNITZ V. BEVERLY, 163 U.S. 118; ADAMS V. SPILLYARDS, 61 S.W.(2D)
686; VANDERBILT V. BRUTON PIANO CO., 169 ATL. 177; LANGEVER V. MILLER,
76 S.W.(2D) 1025. 

THE STATUTE DEALS SOLELY WITH THE REMEDY AND IS CONSTITUTIONAL. 
PUBLIC LAWS, NORTH CAROLINA, 1933, PP. 402, 403; WILSON V. STANDEFER,
184 U.S. 399, 416; BERNHEIMER V. CONVERSE, 206 U.S. 516, 530; TENNESSEE
V. SNEED, 96 U.S. 69, 74; OSHKOSH WATER WORKS V. OSHKOSH, 187 U.S. 437,
439; NATIONAL SURETY CO. V. ARCHITECTURAL CO., 226 U.S. 276, 283;
WAGGONER V. FLACK, 188 U.S. 595, 602; NEW ORLEANS R. CO. V. LOUISIANA,
157 U.S. 219, 224; CRANE V. HAHLO, 258 U.S. 142, 147; STURGES V.
CROWNINSHIELD, 4 WHEAT.  122, 200. 

THE JUDGMENT IS FULLY SUSTAINED BY THE FACTS AND THE LAW OF THE
CASE.  GREAT NORTHERN RY. CO. V. DONALDSON, 246 U.S. 121, 124; CAMPBELL
V. OLNEY, 262 U.S. 352, 354; UNITED STATES V. YUEN PAK SUNE, 183 FED.
260, 266; 191 FED. 825; HANES V. SHAPIRO, 168 N.C. 24, 27; BAKER V.
EDWARDS & SON, 176 N.C. 229, 234; ADAMS V. SPILLYARDS, 61 S.W.(2D) 686;
VANDERBILT V. BRUTON PIANO CO., 169 ATL. 177; NEWARK SAVINGS
INSTITUTION V. FORMAN, 33 N.J. EQ. 436; LANGEVER V. MILLER, 76 S.W.(2D)
1025. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF NORTH
CAROLINA  FN1  SUSTAINING THE VALIDITY OF A STATUTE CLAIMED TO IMPAIR
THE OBLIGATION OF A CONTRACT, CONTRARY TO ARTICLE I, SEC. 10, OF THE
FEDERAL CONSTITUTION.  THE ACT PROVIDES THAT WHEN THE MORTGAGEE, PAYEE,
OR OTHER HOLDER OF AN OBLIGATION SECURED BY REAL ESTATE OR PERSONAL
PROPERTY CAUSES A SALE OF THE PROPERTY BY A TRUSTEE, BECOMES THE
PURCHASER FOR A SUM LESS THAN THE AMOUNT OF THE DEBT AND AFTERWARDS
BRINGS AN ACTION FOR THE DEFICIENCY, THE DEFENDANT MAY SHOW, BY WAY OF
DEFENSE AND SET-OFF, THAT THE PROPERTY SOLD WAS FAIRLY WORTH THE AMOUNT
OF THE DEBT OR THAT THE SUM BID WAS SUBSTANTIALLY LESS THAN THE TRUE
VALUE OF THE PROPERTY, AND THUS DEFEAT THE CLAIM IN WHOLE OR IN PART. 
THE PROVISION IS COPIED IN FULL IN THE MARGIN.  FN2 

IN 1928 THE APPELLEES BORROWED $8,000 FROM THE APPELLANT FOR WHICH
THEY EXECUTED NEGOTIABLE PROMISSORY NOTES.  AS SECURITY THEY DELIVERED
A DEED OF TRUST PLEDGING REAL ESTATE.  UPON DEFAULT THE APPELLANT
DEMANDED THAT THE TRUSTEE DECLARE THE INDEBTEDNESS DUE, IN ACCORDANCE
WITH THE TERMS OF THE NOTES AND DEED OF TRUST, AND EXERCISE THE POWER
OF SALE GIVEN BY THE DEED.  THE TRUSTEE ADVERTISED THE PROPERTY, AS
REQUIRED BY THE DEED AND THE LAWS OF THE STATE, AND MADE SALE JUNE 19,
1933; AND ONE ACTING IN APPELLANT'S INTEREST PURCHASED THE LAND FOR
$3,000.  UPON EXPIRATION OF A TEN DAY PERIOD OF REDEMPTION THE PROPERTY
WAS CONVEYED TO THE PURCHASER.  THE APPELLANT CREDITED ON THE NOTES THE
SUM REALIZED BY THE SALE, WHICH LEFT $4,534.79, WITH INTEREST, DUE AND
UNPAID, AND ON JUNE 18, 1934, BROUGHT ACTION TO RECOVER THIS BALANCE. 
THE APPELLEES PLEADED THE STATUTE AND ALLEGED THAT THE PROPERTY, AT THE
TIME AND PLACE OF SALE, WAS FAIRLY WORTH THE AMOUNT OF THE DEBT.  IN
REPLY THE APPELLANT ASSERTED THAT, AS THE NOTES AND DEED OF TRUST HAD
BEEN EXECUTED PRIOR TO THE PASSAGE OF THE LAW, THE STATUTE VIOLATED THE
CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION.  AT THE TRIAL EXCEPTION
WAS TAKEN TO THE COURT'S REFUSAL TO ENTER JUDGMENT FOR THE APPELLANT ON
THE PLEADINGS.  THE COURT, OVER THE APPELLANT'S OBJECTION AND
EXCEPTION, SUBMITTED TO THE JURY THE QUESTION OF THE FAIR VALUE OF THE
PROPERTY AT THE TIME AND PLACE OF SALE, AND THE JURY FOUND ITS VALUE TO
BE $8,000.  AN INTERMEDIATE APPELLATE COURT, AND THE SUPREME COURT OF
THE STATE, AFFIRMED JUDGMENT FOR THE APPELLEES. 

ALTHOUGH ADMITTING THAT THE CHALLENGED LEGISLATION AFFECTS ONLY A
REMEDY FOR ENFORCEMENT OF THE CONTRACT, THE APPELLANT URGES THAT THE
ALTERATION IS SO SUBSTANTIAL AS TO IMPAIR THE OBLIGATION OF THE
CONTRACT.  THE APPLICABLE PRINCIPLE IS NOT IN DISPUTE.  THE LEGISLATURE
MAY MODIFY, LIMIT OR ALTER THE REMEDY FOR ENFORCEMENT OF A CONTRACT
WITHOUT IMPAIRING ITS OBLIGATION, BUT IN SO DOING, IT MAY NOT DENY ALL
REMEDY OR SO CIRCUMSCRIBE THE EXISTING REMEDY WITH CONDITIONS AND
RESTRICTIONS AS SERIOUSLY TO IMPAIR THE VALUE OF THE RIGHT.  FN3 THE
PARTICULAR REMEDY EXISTING AT THE DATE OF THE CONTRACT MAY BE
ALTOGETHER ABROGATED IF ANOTHER EQUALLY EFFECTIVE FOR THE ENFORCEMENT
OF THE OBLIGATION REMAINS OR IS SUBSTITUTED FOR THE ONE TAKEN AWAY. 
FN4  THE MATTER IN DISPUTE IS WHETHER THE QUESTIONED ENACTMENT FALLS
BEYOND THE BOUNDARY OF PERMISSIBLE REGULATION OF THE REMEDY FOR
ENFORCEMENT OF THE APPELLANT'S CONTRACT. 

THE LOAN RENDERED THE APPELLEES DEBTORS TO THE APPELLANT.  FOR THAT
DEBT THE BORROWER PLEDGED REAL ESTATE AS SECURITY.  THE CONTRACT
CONTEMPLATED THAT THE LENDER SHOULD MAKE ITSELF WHOLE, IF NECESSARY,
OUT OF THE SECURITY, BUT NOT THAT IT SHOULD BE ENRICHED AT THE EXPENSE
OF THE BORROWER OR REALIZE MORE THAN WOULD REPAY THE LOAN WITH
INTEREST.  THE STATE PROVIDED REMEDIES WHEREBY THE SECURITY COULD BE
MADE AVAILABLE FOR SOLUTION OF THE DEBT. 

WHEN THE LOAN WAS MADE TWO SUCH REMEDIES WERE AVAILABLE.  THE
MORTGAGEE COULD PROCEED BY BILL IN EQUITY TO FORECLOSE THE SECURITY. 
IF IT DID THE CHANCELLOR WHO CONTROLLED THE PROCEEDING COULD SET ASIDE
A SALE IF THE PRICE BID WAS INADEQUATE.  IN ADDITION, HE MIGHT AWARD A
MONEY DECREE FOR THE AMOUNT BY WHICH THE AVAILS OF THE SALE FELL BELOW
THE AMOUNT OF THE INDEBTEDNESS, BUT HIS DECREE IN THAT BEHALF WOULD BE
GOVERNED BY WELL UNDERSTOOD PRINCIPLES OF EQUITY.  AN ALTERNATIVE
REMEDY SANCTIONED BY STATE LAW WAS AVAILABLE IF THE DEED OF TRUST SO
PROVIDED.  THIS WAS THE SALE OF THE PLEDGED PROPERTY BY THE TRUSTEE. 
IF THIS WERE THE REMEDY AUTHORIZED BY THE CONTRACT, AND THE MORTGAGEE
HIMSELF BECAME THE PURCHASER AT THE TRUSTEE'S SALE, HE MIGHT
THEREAFTER, IN AN ACTION AT LAW, RECOVER THE DIFFERENCE BETWEEN THE
PRICE HE HAD BID AND THE AMOUNT OF THE INDEBTEDNESS.  THE STATUTE UNDER
ATTACK EFFECTED CERTAIN ALTERATIONS OF THIS REMEDY.  SECTIONS 1 AND 2,
NOT HERE IN ISSUE, PROVIDE THAT IF THE MORTGAGED PROPERTY BE SOLD UNDER
POWER OF SALE, AND THE SUM BID BE INADEQUATE SO THAT CONSUMMATION OF
THE SALE WOULD BE INEQUITABLE, THE MORTGAGOR MAY APPLY TO THE SUPERIOR
COURT FOR AN ORDER ENJOINING SUCH CONSUMMATION, AND THE JUDGE MAY
DIRECT A RESALE BY A TRUSTEE OR BY A COMMISSIONER APPOINTED FOR THE
PURPOSE, UPON TERMS HE MAY DEEM JUST AND EQUITABLE.  THESE SECTIONS
MODIFYING THE PROCEDURE UNDER A POWER OF SALE SO AS TO ASSIMILATE IT TO
THE PROCEDURE IN STRICT FORECLOSURE, HAVE BEEN SUSTAINED AS
CONSTITUTIONAL BY THE STATE SUPREME COURT.  FN5  THE SECTION WITH WHICH
WE ARE CONCERNED ADDS THAT IF THE MORTGAGEE BECOMES THE PURCHASER AT
THE TRUSTEE'S SALE, AND AFTERWARDS BRINGS AN ACTION AT LAW FOR A
DEFICIENCY, THE JURY SHALL DETERMINE THE ACTUAL AMOUNT NEEDED BY HIM TO
MAKE HIM WHOLE FOR HIS DEBT BY FINDING THE TRUE OR FAIR VALUE OF THE
PROPERTY AT THE DATE OF SALE, THE JUDGMENT BEING FOR THE DIFFERENCE
BETWEEN THAT VALUE AND THE AMOUNT OF THE DEBT REMAINING UNPAID, OR, IF
THE VALUE FOUND EQUALS THE AMOUNT OF THE DEBT, FOR THE DEFENDANT.  THE
STATUTE HAS NO APPLICATION IF THE PURCHASER AT THE TRUSTEE'S SALE BE
OTHER THAN THE MORTGAGEE.  THE ACT ALTERS AND MODIFIES ONE OF THE
EXISTING REMEDIES FOR REALIZATION OF THE VALUE OF THE SECURITY, BUT
CANNOT FAIRLY BE SAID TO DO MORE THAN RESTRICT THE MORTGAGEE TO THAT
FOR WHICH HE CONTRACTED, NAMELY, PAYMENT IN FULL.  IT RECOGNIZES THE
OBLIGATION OF HIS CONTRACT AND HIS RIGHT TO ITS FULL ENFORCEMENT BUT
LIMITS THAT RIGHT SO AS TO PREVENT HIS OBTAINING MORE THAN HIS DUE.  BY
THE OLD AND WELL KNOWN REMEDY OF FORECLOSURE A MORTGAGEE WAS SO LIMITED
BECAUSE OF THE CHANCELLOR'S CONTROL OF THE PROCEEDING.  THAT
PROCEEDING, AS HAS BEEN SAID, HAS ALWAYS BEEN AVAILABLE TO THE
MORTGAGEE IN NORTH CAROLINA.  GRANTING THAT BY THE ALTERNATIVE REMEDY
OF TRUSTEE'S SALE THE MORTGAGEE MIGHT PERCHANCE OBTAIN SOMETHING MORE,
OR MIGHT OBTAIN ONLY THAT WHICH WAS HIS DUE SOMEWHAT MORE
EXPEDITIOUSLY, THAN HE COULD IN CHANCERY, IT REMAINS THAT THE PROCEDURE
TO FORECLOSE IN EQUITY IS, AND HAS BEEN, THE CLASSICAL METHOD OF
REALIZATION UPON MORTGAGE SECURITY AND HAS ALWAYS BEEN UNDERSTOOD TO BE
FAIR TO BOTH PARTIES TO THE CONTRACT AND TO AFFORD AN ADEQUATE REMEDY
TO THE MORTGAGEE.  IF, THEREFORE, THE LEGISLATURE OF THE STATE HAD
ELECTED ALTOGETHER TO ABOLISH THE REMEDY BY TRUSTEE'S SALE WE COULD NOT
SAY THAT IT HAD NOT LEFT THE MORTGAGEE AN ADEQUATE REMEDY FOR THE
ENFORCEMENT OF HIS CONTRACT.  BUT THE LEGISLATURE HAS BY NO MEANS GONE
SO FAR.  THE LAW HAS MERELY RESTRICTED THE EXERCISE OF THE CONTRACTUAL
REMEDY TO PROVIDE A PROCEDURE WHICH, TO SOME EXTENT, RENDERS THE REMEDY
BY A TRUSTEE'S SALE CONSISTENT WITH THAT IN EQUITY.  THIS DOES NOT
IMPAIR THE OBLIGATION OF THE CONTRACT. 

THE JUDGMENT IS AFFIRMED. 

FN1  210 N.C. 29, 185 S.E. 482. 

FN2  SECTION 3 OF CHAPTER 275, OF THE LAWS OF 1933: 

"WHEN ANY SALE OF REAL ESTATE OR PERSONAL PROPERTY HAS BEEN MADE BY A
MORTGAGEE, TRUSTEE, OR OTHER PERSON AUTHORIZED TO MAKE THE SAME, AT
WHICH THE MORTGAGEE, PAYEE OR OTHER HOLDER OF THE OBLIGATION THEREBY
SECURED BECOMES THE PURCHASER AND TAKES TITLE EITHER DIRECTLY OR
INDIRECTLY, AND THEREAFTER SUCH MORTGAGEE, PAYEE OR OTHER HOLDER OF THE
SECURED OBLIGATION, AS AFORESAID, SHALL SUE FOR AND UNDERTAKE TO
RECOVER A DEFICIENCY JUDGMENT AGAINST THE MORTGAGOR, TRUSTOR OR OTHER
MAKER OF ANY SUCH OBLIGATION WHOSE PROPERTY HAS BEEN SO PURCHASED, IT
SHALL BE COMPETENT AND LAWFUL FOR THE DEFENDANT AGAINST WHOM SUCH
DEFICIENCY JUDGMENT IS SOUGHT TO ALLEGE AND SHOW AS MATTER OF DEFENSE
AND OFF-SET, BUT NOT BY WAY OF COUNTER-CLAIM, THAT THE PROPERTY SOLD
WAS FAIRLY WORTH THE AMOUNT OF THE DEBT SECURED BY IT AT THE TIME AND
PLACE OF SALE OR THAT THE AMOUNT BID WAS SUBSTANTIALLY LESS THAN ITS
TRUE VALUE, AND, UPON SUCH SHOWING, TO DEFEAT OR OFF-SET ANY DEFICIENCY
JUDGMENT AGAINST HIM, EITHER IN WHOLE OR IN PART; PROVIDED, THIS
OF INNOCENT THIRD PARTIES, NOR SHALL IT BE HELD TO AFFECT OR DEFEAT THE
NEGOTIABILITY OF ANY NOTE, BOND OR OTHER OBLIGATION SECURED BY SUCH
MORTGAGE, DEED OF TRUST OR OTHER INSTRUMENT; PROVIDED, FURTHER, THIS
OR DECREE OF COURT NOR TO ANY JUDGMENT SOUGHT OR RENDERED IN ANY
FORECLOSURE SUIT NOR TO ANY SALE HERETOFORE MADE AND CONFIRMED." 

FN3  WORTHEN CO. V. KAVANAUGH, 295 U.S. 56, AND CASES CITED. 

FN4  HOME BLDG. & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 434, AND
CASES CITED, NOTE 13. 

FN5  WOLTZ V. ASHEVILLE SAFE DEPOSIT CO., 206 N.C. 239, 173 S.E. 587;
HOPKINS V. SWAIN, 206 N.C. 439, 174 S.E. 409; MILLER V. SHORE, 206 N.C.
732, 175 S.E. 133; BARRINGER V. WILMINGTON SAVINGS TRUST CO. 207 N.C.
505, 177 S.E. 795. 
..END :













WAYNE GAS CO. V. OWENS CO., 300 U.S. 131 


NO. 305.  ARGUED JANUARY 7, 8, 1937.  - DECIDED FEBRUARY 1, 1937.  - 84
F.(2D) 965, REVERSED. 


1.  A CORPORATION INVOLVED IN FORECLOSURE AND LIQUIDATION PROCEEDINGS
IN A STATE COURT, IN WHICH A SALE OF ALL ITS PROPERTY HAD BEEN ORDERED,
APPLIED TO THE FEDERAL COURT BEFORE THE SALE WAS CONSUMMATED FOR A
REORGANIZATION UNDER SEC. 77B OF THE BANKRUPTCY ACT.  CREDITORS WHO HAD
PARTICIPATED IN THE STATE CASE SECURED AN ORDER OF THE FEDERAL COURT
DISMISSING THE PETITION FOR REORGANIZATION, AND WHILE THE REVIEWABILITY
OF THE ORDER WAS BEFORE THIS COURT BY PETITION FOR CERTIORARI, THEY
WENT FORWARD WITH THE PROCEEDINGS IN THE STATE COURT AND OBTAINED A
CONFIRMED SALE AND CONVEYANCE OF THE ASSETS TO THEIR NOMINEE.  HELD
THAT THEY HAD NOT THEREBY ACQUIRED A STATUS PRECLUDING FURTHER
EXAMINATION OF THE PETITION FOR REORGANIZATION IN THE FEDERAL COURT,
AND THAT A MOTION TO DISMISS THE PETITION FOR CERTIORARI AS MOOT MUST
BE OVERRULED.  P. 134. 

2.  A COURT OF BANKRUPTCY HAS NO TERMS, BUT SITS CONTINUOUSLY.  P.
135. 

3.  THE RULE DENYING POWER TO A COURT OF EQUITY TO VACATE A DECREE
AFTER EXPIRATION OF THE TERM IN WHICH IT WAS ENTERED, IS, THEREFORE,
INAPPLICABLE TO A COURT OF BANKRUPTCY.  ID. 

4.  A COURT OF BANKRUPTCY, IN A PROCEEDING UNDER SEC. 77B OF THE
BANKRUPTCY ACT, HAS POWER, IN THE EXERCISE OF SOUND DISCRETION, TO
REOPEN AN ORDER DISMISSING THE PETITION FOR REORGANIZATION,
NOTWITHSTANDING THAT THE TIME ALLOWED FOR APPEAL FROM THE ORDER HAS
EXPIRED.  P. 136. 

5.  THE BANKRUPTCY COURT, IN THE EXERCISE OF A SOUND DISCRETION, IF
NO INTERVENING RIGHTS WILL BE PREJUDICED BY ITS ACTION, MAY GRANT A
REHEARING UPON APPLICATION DILIGENTLY MADE, AND REHEAR THE CASE UPON
THE MERITS; AND EVEN THOUGH IT REAFFIRM ITS FORMER ACTION AND REFUSE TO
ENTER A DECREE DIFFERENT FROM THE ORIGINAL ONE, THE ORDER ENTERED UPON
REHEARING IS APPEALABLE, AND THE TIME FOR APPEAL RUNS FROM ITS ENTRY. 
P. 137. 

WAYNE UNITED GAS CO. V. OWENS-ILLINOIS GLASS CO. ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. 

CERTIORARI, 299 U.S. 528, TO REVIEW THE DISMISSAL OF AN APPEAL FROM A
DECREE OF THE DISTRICT COURT ENTERED ON REHEARING AND DISMISSING, FOR
THE SECOND TIME, A PETITION FOR REORGANIZATION UNDER SEC. 77B OF THE
BANKRUPTCY ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THE CIRCUIT COURT OF APPEALS HAS DECIDED THAT A DISTRICT COURT IS
WITHOUT POWER TO SET ASIDE ITS ORDER DISMISSING A PETITION FOR
REORGANIZATION UNDER SEC. 77B OF THE BANKRUPTCY ACT AND TO REHEAR THE
CAUSE AFTER THE EXPIRATION OF THE PERIOD ALLOWED BY THE ACT FOR APPEAL
FROM THE ORDER.  FN1 TO RESOLVE A CONFLICT OF DECISIONS  FN2  WE
GRANTED CERTIORARI. 

NOVEMBER 25, 1935, THE PETITIONER FILED IN THE DISTRICT COURT FOR
SOUTHERN WEST VIRGINIA A PETITION AND, ON DECEMBER 10TH, AN AMENDED AND
SUPPLEMENTAL PETITION FOR CORPORATE REORGANIZATION UNDER SEC. 77B OF
THE BANKRUPTCY ACT AS AMENDED.  FN3  FEBRUARY 7, 1936, THE RESPONDENTS
FILED OBJECTIONS AND MOTIONS TO DISMISS.  MARCH 2ND THE PETITIONS WERE
DISMISSED.  MARCH 20TH THE PETITIONER PRESENTED TO THE CIRCUIT COURT OF
APPEALS A PETITION FOR APPEAL, PURSUANT TO SEC. 24(B) OF THE BANKRUPTCY
ACT.  FN4  APRIL 15TH THE COURT DENIED THE APPEAL,  FN5  HOLDING THAT
THE PETITIONER SHOULD HAVE PROCEEDED UNDER SEC. 25(A).  FN6  APRIL 17TH
PETITIONER NOTIFIED RESPONDENTS THAT ON APRIL 24TH IT WOULD PRESENT A
PETITION TO THE DISTRICT COURT PRAYING VACATION OF THE ORDER OF MARCH
2ND AND A REHEARING AND REVIEW OF ALL MATTERS ARISING IN THE
PROCEEDINGS BECAUSE OF ERRORS COMMITTED BY THE COURT IN DISMISSING ITS
PETITIONS, AND THAT, UPON REHEARING, THE COURT WOULD BE ASKED TO ENTER
AN ORDER APPROVING THE ORIGINAL AND AMENDED PETITIONS.  AFTER
PRESENTATION OF THE PETITION FOR REHEARING AND ARGUMENT THEREON THE
COURT DIRECTED THAT IT BE FILED, TOOK THE MATTER UNDER ADVISEMENT, AND,
ON MAY 12TH, SET ASIDE THE ORDER OF MARCH 2ND, GRANTED A REHEARING AND
REVIEW AND FIXED MAY 22ND FOR A HEARING ON ALL QUESTIONS ARISING ON THE
RECORD.  THE COURT FOUND THAT GOOD CAUSE EXISTED JUSTIFYING VACATION OF
ITS PREVIOUS ORDER AND RECONSIDERATION OF THE CAUSE.  IT FURTHER FOUND
THAT THE APPLICATION HAD BEEN SEASONABLY PRESENTED AND NO RIGHTS HAD
VESTED UNDER THE ORDER OF MARCH 2ND WHICH WOULD BE DISTURBED BY SETTING
THE ORDER ASIDE.  BY LEAVE OF COURT THE PETITIONER, ON MAY 22ND,
PRESENTED A SECOND AMENDED AND SUPPLEMENTAL PETITION, WHICH
INCORPORATED THE EARLIER PETITIONS FOR REORGANIZATION, AND ASKED THE
COURT TO FIND THAT THE ORIGINAL AND SUPPLEMENTAL PETITIONS WERE FILED
IN GOOD FAITH AND COMPLIED WITH SEC. 77B.  THE RESPONDENTS OBJECTED. 
MAY 28TH THE COURT, AFTER A HEARING, SUSTAINED THE RESPONDENTS'
OBJECTIONS AND DISMISSED THE PETITIONS FOR REASONS SET FORTH IN
FINDINGS OF FACT AND CONCLUSIONS OF LAW.  JUNE 11TH PETITIONER'S
APPLICATION TO THE JUDGE OF THE DISTRICT COURT, UNDER SEC. 25(A) OF THE
ACT, FOR AN APPEAL, WITH SUPERSEDEAS, WAS GRANTED.  THE CIRCUIT COURT
OF APPEALS, ON RESPONDENTS' MOTION, DISMISSED THE APPEAL. 

1.  THE RESPONDENTS HAVE MOVED TO DISMISS THE WRIT OF CERTIORARI ON
THE GROUND THAT THE CONTROVERSY HAS BECOME MOOT.  IN SUPPORT OF THE
MOTION THEY SHOW THAT FOR SOME TIME PRIOR TO THE INSTITUTION OF THE 77B
PROCEEDINGS THE DEBTOR'S PROPERTY HAD BEEN IN POSSESSION OF A RECEIVER
APPOINTED BY A STATE COURT; THAT THE TRUSTEE OF A FIRST MORTGAGE HAD
INTERVENED IN THE RECEIVERSHIP PROCEEDING AND SOUGHT FORECLOSURE; THAT
THE STATE COURT HAD ORDERED A SALE OF ALL THE DEBTOR'S PROPERTY AND THE
DECREE OF SALE HAD BECOME FINAL BEFORE THE PRESENTATION OF THE PETITION
FOR REORGANIZATION.  THEY SHOW THAT SUBSEQUENTLY TO THE ORDER OF MARCH
2ND DISMISSING THE PETITION FOR REORGANIZATION FURTHER ACTION BY THE
STATE COURT RESULTED IN THE CONFIRMATION OF A COMMISSIONER'S SALE,
PAYMENT OF THE PURCHASE PRICE PARTLY IN CASH AND PARTLY IN FIRST
MORTGAGE BONDS OF THE DEBTOR AND EXECUTION AND DELIVERY OF A DEED TO
THE PURCHASER, A NOMINEE OF RESPONDENTS.  IT APPEARS NOT ONLY THAT THE
RESPONDENTS WERE PARTIES TO THE 77B PROCEEDING BUT THAT, PRIOR TO THE
CONSUMMATION OF THE SALE, THE STATE COURT WAS FULLY ADVISED OF THE
STEPS TAKEN IN THE FEDERAL COURTS AND OF THE PENDENCY OF THE PETITION
FOR CERTIORARI IN THIS COURT TO REVIEW THE ORDER OF THE CIRCUIT COURT
OF APPEALS DISMISSING THE APPEAL. 

THE RESPONDENTS WENT FORWARD WITH THE PROCEEDINGS IN THE STATE COURT,
LOOKING TO A SALE OF THE DEBTOR'S PROPERTY, WITH FULL KNOWLEDGE THAT A
REHEARING MIGHT BE GRANTED AND THAT THE ORDER ENTERED THEREON MIGHT BE
APPEALED.  THEY ARE NOT ENTITLED, THEREFORE, TO RELY ON ANY STATUS
ACQUIRED IN THE STATE COURT SUIT AS PRECLUDING FURTHER CONSIDERATION OF
THE PETITION FOR REORGANIZATION.  THE MOTION MUST ACCORDINGLY BE
OVERRULED. 

2.  THE PETITIONER ASSERTS THAT THE GRANT OR REFUSAL OF A REHEARING
RESTED IN THE SOUND DISCRETION OF THE DISTRICT COURT, AND SINCE IN THE
PROPER EXERCISE OF THAT DISCRETION THE COURT ENTERTAINED THE
APPLICATION AND REHEARD THE CASE UPON THE MERITS, ITS ACTION AGAIN
DISMISSING THE PETITION FOR REORGANIZATION WAS A FINAL ORDER AND THE
APPEAL THEREFROM WAS TIMELY.  THE RESPONDENTS CONTEND THAT THE FIRST
ORDER OF DISMISSAL HAVING TERMINATED THE CAUSE, AND THE THIRTY DAYS
ALLOWED BY THE BANKRUPTCY ACT FOR APPEAL FROM THE ORDER HAVING EXPIRED,
THE DISTRICT COURT WAS WITHOUT POWER TO ENTERTAIN A PETITION FOR
REHEARING AND ITS SECOND ORDER OF DISMISSAL WAS A NULLITY.  WHEREFORE,
THEY SAY, THE APPEAL TAKEN MORE THAN THIRTY DAYS FROM THE DATE OF THE
ORIGINAL ORDER OF MARCH 2, 1936, IF CONSIDERED AS CHALLENGING THAT
ORDER, WAS OUT OF TIME, AND THE MOTION TO DISMISS WAS PROPERLY GRANTED
BY THE CIRCUIT COURT OF APPEALS.  WE HOLD THE PETITIONER'S POSITION IS
SOUND AND THE APPEAL SHOULD HAVE BEEN ENTERTAINED. 

THOUGH A COURT OF BANKRUPTCY SITS CONTINUOUSLY AND HAS NO TERMS,  FN7
RESPONDENTS URGE THAT, AS COURTS OF BANKRUPTCY ARE COURTS OF EQUITY,
THE RULES APPLICABLE TO THE REHEARING OF A SUIT IN EQUITY SHOULD BE
APPLIED IN BANKRUPTCY CASES, AND AS IT APPEARS THE TERM OF THE DISTRICT
COURT EXPIRED APRIL 20, 1936, THE COURT HAD LOST ITS POWER TO DISTURB
THE ORDER OF MARCH 2ND.  A COURT OF EQUITY MAY GRANT A REHEARING, AND
VACATE, ALTER, OR AMEND ITS DECREE, AFTER AN APPEAL HAS BEEN PERFECTED
AND AFTER THE TIME FOR APPEAL HAS EXPIRED, BUT NOT AFTER EXPIRATION OF
THE TERM AT WHICH THE DECREE WAS ENTERED.  FN8  IT IS TRUE THE
BANKRUPTCY COURT APPLIES THE DOCTRINES OF EQUITY, BUT THE FACT THAT
SUCH A COURT HAS NO TERMS, AND SITS CONTINUOUSLY, RENDERS INAPPLICABLE
THE RULES WITH RESPECT TO THE WANT OF POWER IN A COURT OF EQUITY TO
VACATE A DECREE AFTER THE TERM AT WHICH IT WAS ENTERED HAS ENDED. 

IN THE ALTERNATIVE THE RESPONDENTS ARGUE THAT WHERE, AS HERE, AN
ADJUDICATION IS REFUSED, AND THE CASE IS RETIRED FROM THE DOCKET, THE
REQUIREMENT THAT AN APPEAL SHALL BE PERFECTED WITHIN THIRTY DAYS FROM
THE ORDER OF DISMISSAL DEPRIVES THE COURT OF POWER TO REINSTATE AND
REHEAR THE CAUSE AFTER THE EXPIRATION OF THE TIME LIMITED FOR APPEAL. 
THEY INSIST THAT THE ACT CONTEMPLATES THE SPEEDY DISPOSITION OF CAUSES
IN BANKRUPTCY AND THEREFORE FIXES A BRIEF PERIOD FOR APPEALING FROM
ORDERS THEREIN.  TO PERMIT THE COURT TO REHEAR A CAUSE AFTER THE TIME
FOR APPEAL HAS EXPIRED, AND TO ENTER A FRESH ORDER WHICH IS APPEALABLE,
WOULD, THEY URGE, TEND UNDULY TO EXTEND THE PROCEEDINGS, CREATE
UNCERTAINTY AS TO THE RIGHTS OF THE DEBTOR AND CREDITORS, AND IGNORE
THE INTENT OF CONGRESS.  BUT WE THINK THE COURT HAS THE POWER, FOR GOOD
REASON, TO REVISE ITS JUDGMENTS UPON SEASONABLE APPLICATION AND BEFORE
RIGHTS HAVE VESTED ON THE FAITH OF ITS ACTION.  COURTS OF LAW AND
EQUITY HAVE SUCH POWER, LIMITED BY THE EXPIRATION OF THE TERM AT WHICH
THE JUDGMENT OR DECREE WAS ENTERED AND NOT BY THE PERIOD ALLOWED FOR
APPEAL OR BY THE FACT THAT AN APPEAL HAS BEEN PERFECTED.  FN9  THERE IS
NO CONTROLLING REASON FOR DENYING A SIMILAR POWER TO A COURT OF
BANKRUPTCY OR FOR LIMITING ITS EXERCISE TO THE PERIOD ALLOWED FOR
APPEAL.  THE GRANTING OF A REHEARING IS WITHIN THE COURT'S SOUND
DISCRETION, AND A REFUSAL TO ENTERTAIN A MOTION THEREFOR, OR THE
REFUSAL OF THE MOTION, IF ENTERTAINED, IS NOT THE SUBJECT OF APPEAL. 
FN10  A DEFEATED PARTY WHO APPLIES FOR A REHEARING AND DOES NOT APPEAL
FROM THE JUDGMENT OR DECREE WITHIN THE TIME LIMITED FOR SO DOING, TAKES
THE RISK THAT HE MAY LOSE HIS RIGHT OF APPEAL, AS THE APPLICATION FOR
REHEARING, IF THE COURT REFUSE TO ENTERTAIN IT, DOES NOT EXTEND THE
TIME FOR APPEAL.  FN11  WHERE IT APPEARS THAT A REHEARING HAS BEEN
GRANTED ONLY FOR THAT PURPOSE THE APPEAL MUST BE DISMISSED.  FN12  THE
COURT BELOW EVIDENTLY THOUGHT THE CASE FELL WITHIN THIS CLASS.  ON THE
CONTRARY, THE RULE WHICH GOVERNS THE CASE IS THAT THE BANKRUPTCY COURT,
IN THE EXERCISE OF A SOUND DISCRETION, IF NO INTERVENING RIGHTS WILL BE
PREJUDICED BY ITS ACTION, MAY GRANT A REHEARING UPON APPLICATION
DILIGENTLY MADE AND REHEAR THE CASE UPON THE MERITS; AND EVEN THOUGH IT
REAFFIRM ITS FORMER ACTION AND REFUSE TO ENTER A DECREE DIFFERENT FROM
THE ORIGINAL ONE, THE ORDER ENTERED UPON REHEARING IS APPEALABLE AND
THE TIME FOR APPEAL RUNS FROM ITS ENTRY.  FN13  THE DISTRICT COURT'S
ACTION CONFORMED TO THESE CONDITIONS.  TWO DAYS AFTER THE CIRCUIT COURT
OF APPEALS DISMISSED THE PETITION FOR ALLOWANCE OF APPEAL FROM THE
ORIGINAL ORDER OF MARCH 2, 1936, PETITIONER NOTIFIED RESPONDENTS OF ITS
INTENTION TO APPLY FOR REHEARING.  PROMPT APPLICATION WAS MADE AND THE
CAUSE WAS PROMPTLY HEARD.  A SUPPLEMENTAL PETITION WAS PRESENTED AND
ENTERED UPON THE FILES BY LEAVE OF COURT.  THE ORIGINAL, THE AMENDED,
AND THE SUPPLEMENTAL PETITIONS WERE CONSIDERED UPON THE MERITS, AND THE
COURT MADE FINDINGS AND ANNOUNCED CONCLUSIONS OF LAW WITH RESPECT
THERETO.  THERE IS NO INDICATION THAT THE PETITION FOR REHEARING WAS
NOT MADE IN GOOD FAITH OR THAT THE COURT RECEIVED IT FOR THE PURPOSE OF
EXTENDING PETITIONER'S TIME FOR APPEAL.  THE COURT FOUND THAT NO RIGHTS
HAD INTERVENED WHICH WOULD RENDER IT INEQUITABLE TO RECONSIDER THE
MERITS.  THERE WAS NO ABUSE OF SOUND DISCRETION IN GRANTING THE MOTION
AND RECONSIDERING THE CAUSE. 

THE JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED TO THE CIRCUIT
COURT OF APPEALS FOR FURTHER PROCEEDINGS IN CONFORMITY TO THIS
OPINION.  REVERSED. 

FN1  84 F.(2D) 965. 

FN2  SEE WEST V. MCLAUGHLIN'S TRUSTEE, 162 FED. 124; CAMERON V.
NATIONAL SURETY CO., 272 FED. 874.  THIS COURT HAS ADVERTED TO THE
QUESTION WITHOUT DECIDING IT.  CONBOY V. FIRST NATIONAL BANK, 203 U.S.
141, 146. 

FN3  ACT OF JUNE 7, 1934, 48 STAT. 911; ACT OF AUGUST 20, 1935, C.
577, 49 STAT. 664; ACT OF AUGUST 29, 1935, C. 809, 49 STAT. 965; 11
U.S.C. SEC. 207. 

FN4  ACT OF JULY 1, 1898, C. 541, SEC. 24(B), 30 STAT. 553; 11 U.S.C.
SEC. 47. 

FN5  WAYNE UNITED GAS CO. V. OWENS-ILLINOIS GLASS CO., 83 F.(2D) 98. 
SEE O'CONNOR V. MILLS, DECIDED THIS DAY, ANTE, P. 26. 

FN6  ACT OF JULY 1, 1898, C. 541, SEC. 25(A), 30 STAT. 553, 11 U.S.C.
SEC. 48(A). 

FN7  SANDUSKY V. NATIONAL BANK, 23 WALL.  289, 293; IN RE LEMMON &
GALE CO., 112 FED. 296, 300; FREED V. CENTRAL TRUST CO., 215 FED.  873,
876; IN RE ROCHESTER SANITARIUM & BATHS CO., 222 FED. 22, 26. 

FN8  EQUITY RULE 69; ASPEN MINING CO. V. BILLINGS, 150 U.S. 31, 36;
VOORHEES V. NOYE MFG. CO., 151 U.S. 135; ZIMMERN V. UNITED STATES, 298
U.S. 167. 

FN9  UNITED STATES V. MAYER, 235 U.S. 55; UNITED STATES V. BENZ, 282
U.S. 304; AND CASES CITED IN NOTE 8. 

FN10  BROCKETT V. BROCKETT, 2 HOW.  238; STEINES V. FRANKLIN COUNTY,
14 WALL.  15; HARDIN V. BOYD, 113 U.S. 756; BOESCH V. GRAFF, 133 U.S.
697; SAN PEDRO CO. V. UNITED STATES, 146 U.S. 120. 

FN11  ROEMER V. BERNHEIM, 132 U.S. 103, 106; MORSE V. UNITED STATES,
270 U.S. 151, 154; CLARKE V. HOT SPRINGS ELEC.  L. & P. CO., 76 F.(2D)
918, 921. 

FN12  IN RE STEARNS & WHITE CO., 295 FED. 833; BONNER V. POTTERF, 47
F.(2D) 852, 855; UNITED STATES V. EAST, 80 F.(2D) 134, 135. 

FN13  COMPARE ASPEN MINING CO. V. BILLINGS, SUPRA, P. 37; VOORHEES V.
NOYE MFG. CO., SUPRA, P. 137; CITIZENS BANK V. OPPERMAN, 249 U.S. 448,
450; MORSE V. UNITED STATES, SUPRA, P. 154. 
..END :




















ISBRANDTSEN-MOLLER CO. V. U.S., 300 U.S. 139 


NO. 307.  ARGUED JANUARY 15, 1937.  - DECIDED FEBRUARY 1, 1937.  - 14
F.SUPP.  407, AFFIRMED. 


1.  AN ORDER OF THE SECRETARY OF COMMERCE REQUIRING A STEAMSHIP
COMPANY TO FILE A COPY OR SUMMARY OF ITS BOOKS AND RECORDS FOR A
SPECIFIED PERIOD, WHICH SHOULD SHOW EACH COMMODITY CARRIED FROM THE
UNITED STATES TO A FOREIGN COUNTRY, WITH POINT OF SHIPMENT, POINT OF
DESTINATION, AND RATE CHARGED OR COLLECTED, THE EFFECTIVE DATE OF THE
RATE, AND TRANS-SHIPMENT AND TERMINAL CHARGES AND RULES AFFECTING RATES
OR VALUE OF THE SERVICE RENDERED, HELD WITHIN THE PURVIEW OF SEC. 21 OF
THE SHIPPING ACT OF 1916.  P. 144. 

2.  AN ADMINISTRATIVE ORDER JUSTIFIED BY A LAWFUL PURPOSE IS NOT
RENDERED ILLEGAL BY THE EXISTENCE OF ANOTHER MOTIVE IN THE MIND OF THE
OFFICER ISSUING IT.  P. 145. 

3.  AN ORDER NOT CALLING FOR THE PRODUCTION, OR DEMANDING AN
INSPECTION, OF BOOKS OR DOCUMENTS, BUT CALLING FOR A COPY OR A SUMMARY,
IS NOT A SEARCH OR SEIZURE WITHIN THE FOURTH AMENDMENT.  P. 145. 

4.  AN ORDER MADE UNDER SEC. 21 OF THE SHIPPING ACT OF 1916, DIRECTED
TO A SINGLE CARRIER, HELD NOT TO HAVE BEEN SHOWN TO BE DISCRIMINATORY
AGAINST THAT CARRIER IN FAVOR OF COMPETITORS.  P. 146. 

5.  ABOLITION OF THE SHIPPING BOARD AND TRANSFER OF ITS FUNCTIONS TO
THE DEPARTMENT OF COMMERCE, BY EXECUTIVE ORDER, IF NOT AUTHORIZED BY
TITLE IV OF THE LEGISLATIVE APPROPRIATION ACT OF JUNE 30, 1932, AS
AMENDED, WAS IMPLIEDLY RATIFIED BY THE MERCHANT MARINE ACT OF 1936,
WHICH REFERS TO THE FUNCTIONS OF THE SHIPPING BOARD AS "NOW VESTED IN
THE DEPARTMENT OF COMMERCE PURSUANT TO SECTION 12 OF THE PRESIDENT'S
EXECUTIVE ORDER NO. 6166."  P. 146. 

6.  EVEN ASSUMING THAT AN ORDER OF THE SECRETARY OF COMMERCE
REQUIRING AN OCEAN CARRIER TO FURNISH DATA AS TO RATES, ETC., UNDER
SEC. 21 OF THE SHIPPING ACT, WAS INVALID UPON THE GROUND THAT THE
TRANSFER OF THE DUTIES OF THE SHIPPING BOARD TO THE COMMERCE DEPARTMENT
BY EXECUTIVE ORDER INVOLVED AN UNCONSTITUTIONAL DELEGATION OF
LEGISLATIVE POWER TO THE PRESIDENT, THE QUESTION IS RENDERED MOOT BY
SEC. 204(A) OF THE MERCHANT MARINE ACT OF 1936, WHICH PROVIDES THAT ALL
FUNCTIONS, ETC., OF THE SHIPPING BOARD, "NOW VESTED IN THE DEPARTMENT
OF COMMERCE" BY THE PRESIDENT'S ORDER, ARE TRANSFERRED TO THE UNITED
STATES MARITIME COMMISSION, AND BY AN ORDER OF THAT COMMISSION
PROVIDING THAT SUCH ORDERS OF THE SECRETARY OF COMMERCE SHALL CONTINUE
IN EFFECT, ETC.  P. 148. 

7.  SUCH AN ADMINISTRATIVE ORDER, WHICH MERELY CALLS FOR DATA
CONCERNING THE CARRIER'S BUSINESS, NEED NOT BE PRECEDED BY NOTICE AND
HEARING.  P. 149. 

ISBRANDTSEN-MOLLER CO., INC. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF THE DISTRICT COURT, OF THREE JUDGES, WHICH
DENIED AN INTERLOCUTORY INJUNCTION AND DISMISSED THE BILL, IN A SUIT BY
AN OCEAN CARRIER TO ENJOIN THE ENFORCEMENT OF AN ORDER MADE BY THE
SECRETARY OF COMMERCE UNDER THE SHIPPING ACT. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM THE FINAL DECREE OF A SPECIALLY CONSTITUTED
DISTRICT COURT OF THREE JUDGES FOR THE SOUTHERN DISTRICT OF NEW YORK
DENYING AN INTERLOCUTORY INJUNCTION AND DISMISSING THE APPELLANT'S BILL
FOR FAILURE TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION. 
FN1 THE SUIT WAS BROUGHT TO RESTRAIN ENFORCEMENT OF AN ORDER ISSUED
NOVEMBER 18, 1935, BY THE SECRETARY OF COMMERCE PURSUANT TO SEC. 21 OF
THE SHIPPING ACT, 1916,  FN2  REQUIRING THE APPELLANT TO FILE WITH THE
SECRETARY ON DECEMBER 16, 1935, A COPY OR SUMMARY OF ITS BOOKS AND
RECORDS FOR THE PERIOD SEPTEMBER 1 TO NOVEMBER 12, 1935, WHICH SHOULD
SHOW EACH COMMODITY CARRIED FROM THE UNITED STATES TO A FOREIGN
COUNTRY, WITH POINT OF SHIPMENT, POINT OF DESTINATION, AND RATE CHARGED
OR COLLECTED, THE EFFECTIVE DATE OF THE RATE, AND TRANS-SHIPMENT AND
TERMINAL CHARGES AND RULES AFFECTING RATES OR VALUE OF THE SERVICE
RENDERED.  THE ORDER RECITES THAT IT APPEARS FULL INFORMATION AS TO
RATES IN CONNECTION WITH TRANSPORTATION OF CERTAIN PROPERTY FROM THE
UNITED STATES TO FOREIGN COUNTRIES BY CARRIERS BY WATER IN FOREIGN
COMMERCE SUBJECT TO THE SHIPPING ACT 1916 IS NECESSARY TO THE PROPER
ADMINISTRATION OF THE REGULATORY PROVISIONS OF THE ACT AND THAT THE
APPELLANT IS ENGAGED IN SUCH TRANSPORTATION. 

THE COMPLAINT SETS FORTH FIVE CAUSES OF ACTION.  THE FIRST IS THAT
THE ORDER IS INVALID BECAUSE CONGRESS DID NOT INTEND BY THE LEGISLATIVE
APPROPRIATION ACT OF 1932  FN3  TO AUTHORIZE THE PRESIDENT TO ABOLISH
THE SHIPPING BOARD AND TRANSFER ITS FUNCTIONS TO AN EXECUTIVE OFFICER
SUCH AS THE SECRETARY OF COMMERCE, AND THAT IF CONGRESS DID SO INTEND
THE ACT IS UNCONSTITUTIONAL AS ATTEMPTING TO MAKE THE HEAD OF AN
EXECUTIVE DEPARTMENT ALSO A JUDICIAL OFFICER AND A LEGISLATIVE OFFICER
OF THE UNITED STATES AND IN FAILING TO SET UP AN ADEQUATE DECLARATION
OF POLICY OR STANDARD OF ACTION, AND, FURTHER, THAT THE PRESIDENT
PROMULGATED THE ORDER OF TRANSFER WITHOUT ADEQUATE HEARINGS OR FINDINGS
OF FACT ON WHICH TO BASE IT. 

THE SECOND CAUSE OF ACTION IS THAT THE SECRETARY'S ORDER IS INVALID
AS IN SUBSTANCE THE ATTEMPT OF A COMPETITOR TO REGULATE OR STABILIZE
THE APPELLANT'S RATES AND TO COMPEL IT TO CHARGE RATES FIXED BY A
SHIPPING MONOPOLY OF WHICH APPELLANT'S COMPETITOR IS A MEMBER.  THE
CHARGE IS THAT BEFORE THE ORDER WAS ISSUED THE SECRETARY HAD
TRANSFERRED ALL HIS SHIPPING BOARD FUNCTIONS TO ONE PEACOCK, WHO WAS
PRESIDENT OF A PRIVATE SHIPPING CORPORATION (THE UNITED STATES MERCHANT
FLEET CORPORATION) WHICH WAS ACTIVELY OPERATING VESSELS IN COMPETITION
WITH THOSE OF APPELLANT AND WAS A MEMBER OF A CONFERENCE OR SHIPPING
COMBINATION WHOSE INTERESTS WERE OPPOSED TO THOSE OF APPELLANT, WHICH
IS AN INDEPENDENT OR NON-CONFERENCE OPERATOR; AND THAT THE ORDER HAD
BEEN ISSUED FOR THE FINANCIAL BENEFIT OF THE COMPETITOR.  THE FURTHER
ALLEGATION IS THAT THE CONSTITUTIONAL SEPARATION OF POWERS BETWEEN
LEGISLATIVE, JUDICIAL, AND EXECUTIVE BRANCHES AND THE FIFTH AMENDMENT
OF THE CONSTITUTION FORBID THE EXERCISE OF REGULATORY OR QUASI-JUDICIAL
FUNCTIONS SUCH AS WERE ENTRUSTED TO THE UNITED STATES SHIPPING BOARD,
BY PERSONS OR AGENCIES HAVING THE INTERESTS DESCRIBED, AND REQUIRE THAT
THE SECRETARY'S ORDER BE HELD FOR NAUGHT. 

THE THIRD CAUSE OF ACTION IS THAT THE ORDER WAS ISSUED NOT FOR A
PUBLIC PURPOSE AUTHORIZED BY CONGRESS BUT IN FURTHERANCE OF A CONCERTED
PLAN TO COMPEL THE APPELLANT, AN INDEPENDENT NON-CONFERENCE CARRIER,
EITHER TO JOIN A CONFERENCE OR SHIPPING MONOPOLY, OR ELSE SUFFER DAMAGE
BY DISCLOSURE TO COMPETITORS OF CURRENT BUSINESS RECORDS SHOWING RATES
CHARGED AND COMMODITIES TRANSPORTED.  THE SECRETARY'S ORDER IS ALLEGED
TO HAVE BEEN ISSUED TO PROMOTE AND FOSTER A MONOPOLY OF APPELLANT'S
COMPETITORS. 

THE FOURTH CAUSE OF ACTION IS THAT THE ORDER IS AN UNJUST
DISCRIMINATION AGAINST APPELLANT WHICH IS FORBIDDEN BY THE FIFTH
AMENDMENT BECAUSE IT REQUIRES APPELLANT TO FILE A RECORD OF ACTUAL
TRANSACTIONS, WHEREAS THE SECRETARY REQUIRES APPELLANT'S COMPETITORS,
THE CONFERENCE LINES OR MEMBERS OF THE SHIPPING COMBINATION, MERELY TO
FILE GENERAL RATE SCHEDULES FOR THE FUTURE WHICH ARE NOT ALWAYS
OBSERVED AND NEED NOT BE OBSERVED.  FURTHER, THAT THE ORDER ISSUED
UNDER SEC. 21 ENTAILS PENALTIES FOR DISOBEDIENCE WHEREAS ORDERS ISSUED
BY THE SECRETARY TO APPELLANT'S COMPETITORS WERE NOT ISSUED UNDER SEC.
21 OR ANY OTHER SECTION OF THE ACT, CARRIED NO PENALTIES FOR NON
OBSERVANCE, AND CALLED ONLY FOR INFORMATION WHICH THOSE COMPETITORS
WERE ALREADY REQUIRED BY LAW TO FILE UNDER SEC. 15 OF THE SHIPPING ACT
OF 1916  FN4  BECAUSE OF THEIR HAVING JOINED IN A CONFERENCE OR
SHIPPING COMBINATION. 

THE FIFTH CAUSE OF ACTION IS THAT THE ORDER SHOULD BE ENJOINED
BECAUSE THE SECRETARY REJECTED APPELLANT'S OFFER TO FILE RECORDS ON
CONDITION THAT THEY WOULD NOT BE COMMUNICATED TO APPELLANT'S
COMPETITORS TO THE DAMAGE OF APPELLANT AND BECAUSE THE SECRETARY STATED
HIS PURPOSE WAS TO TURN THE RECORDS OVER TO THE PUBLIC, WHICH WOULD
RESULT IN FOSTERING UNFAIR COMPETITION AND RUIN APPELLANT'S BUSINESS. 
IT IS CHARGED THAT THE APPELLANT CANNOT COMPLY WITH THE ORDER WITHOUT
PREJUDICE OR LOSING ITS EQUITABLE, LEGAL, AND CONSTITUTIONAL RIGHTS. 

AN INJUNCTION AFFIDAVIT WAS FILED BY THE APPELLANT AND TWO REPLY
AFFIDAVITS BY THE UNITED STATES.  WE FIND IT UNNECESSARY TO CONSIDER
THEM AS WE ARE OF OPINION THAT THE DECREE DISMISSING THE BILL MUST BE
AFFIRMED. 

THE GROUNDS OF COMPLAINT FALL INTO TWO GENERAL CLASSES.  UPON THE
ASSUMPTION THAT THE POWERS AND DUTIES OF THE SHIPPING BOARD WERE
EFFECTIVELY TRANSFERRED TO THE SECRETARY OF COMMERCE, THE CLAIM IS THAT
THE ORDER WAS BEYOND THE STATUTORY AUTHORITY CONFERRED BY THE SHIPPING
ACT, AMOUNTED TO AN ILLEGAL SEARCH AND SEIZURE, AND WAS INVALID BECAUSE
ARBITRARY AND UNREASONABLE.  BUT, IN ADDITION, IT IS ASSERTED THAT
TRANSFER OF THE BOARD'S POWERS AND DUTIES TO THE SECRETARY WAS
UNAUTHORIZED BY ACTION OF CONGRESS AND, IF SO AUTHORIZED, WAS IN
VIOLATION OF THE CONSTITUTION. 

FIRST.  THE ORDER IS PLAINLY WITHIN THE TERMS OF SEC. 21 OF THE
SHIPPING ACT, 1916, WHICH PROVIDES: 

"THE BOARD MAY REQUIRE ANY COMMON CARRIER BY WATER, OR OTHER PERSON
SUBJECT TO THIS CHAPTER, OR ANY OFFICER, RECEIVER, TRUSTEE, LESSEE,
AGENT, OR EMPLOYEE THEREOF, TO FILE WITH IT ANY PERIODICAL OR SPECIAL
REPORT, OR ANY ACCOUNT, RECORD, RATE, OR CHARGE, OR ANY MEMORANDUM OF
ANY FACTS AND TRANSACTIONS APPERTAINING TO THE BUSINESS OF SUCH CARRIER
OR OTHER PERSON SUBJECT TO THIS CHAPTER.  SUCH REPORT, ACCOUNT, RECORD,
RATE, CHARGE, OR MEMORANDUM SHALL BE UNDER OATH WHENEVER THE BOARD SO
REQUIRES, AND SHALL BE FURNISHED IN THE FORM AND WITHIN THE TIME
PRESCRIBED BY THE BOARD.  WHOEVER FAILS TO FILE ANY REPORT, ACCOUNT,
RECORD, RATE, CHARGE, OR MEMORANDUM AS REQUIRED BY THIS SECTION SHALL
FORFEIT TO THE UNITED STATES THE SUM OF $100 FOR EACH DAY OF SUCH
DEFAULT." 

THE APPELLANT SUGGESTS THAT THE SECTION GRANTS POWER MERELY TO
SUBPOENA RECORDS, REPORTS, AND INFORMATION, TO BE EXERCISED ONLY IN
HEARINGS UPON COMPLAINTS OF VIOLATION OF THE ACT.  THIS VIEW IGNORES
THE FACT THAT SEC. 27 EXPLICITLY AUTHORIZES THE ISSUANCE OF SUBPOENAS,
FN5  INCLUDING SUBPOENAS DUCES TECUM, FOR HEARINGS UPON ALLEGED
VIOLATIONS.  IT IS INCONCEIVABLE THAT THIS IS MERE TAUTOLOGY.  THE
PURPOSE OF SEC. 21 IS NOT FAR TO SEEK.  OTHER SECTIONS FORBID ALLOWANCE
OF REBATES, REQUIRE THE FILING OF AGREEMENTS FIXING OR REGULATING
RATES, GRANTING SPECIAL RATES, ACCOMMODATIONS OR PRIVILEGES, WHICH MAY
BE DISAPPROVED, CANCELLED OR MODIFIED IF THE BOARD FINDS THEM UNJUSTLY
DISCRIMINATORY OR VIOLATIVE OF THE ACT, PROHIBIT UNDUE OR UNREASONABLE
PREFERENCES OR THE CUTTING OF ESTABLISHED RATES AND UNJUST
DISCRIMINATION BETWEEN SHIPPERS OR PORTS.  FN6  TO ENABLE IT TO PERFORM
ITS FUNCTIONS THE BOARD MAY WELL NEED SUCH INFORMATION AS THAT WHICH
THE SECTION GIVES IT POWER TO DEMAND.  INDEED THE ORDER RECITES THAT IN
THIS INSTANCE SUCH INFORMATION IS SO REQUIRED. 

DESPITE ITS RECITALS OF LEGITIMATE PURPOSE, THE ORDER, SO THE
COMPLAINT ALLEGES, SPRANG FROM ILLEGAL MOTIVES, NAMELY, TO REGULATE AND
STABILIZE FREIGHT RATES FOR THE BENEFIT OF CARRIERS BELONGING TO
STEAMSHIP CONFERENCES, TO COMPEL APPELLANT TO JOIN A CONFERENCE, AND TO
CREATE A MONOPOLY IN TRANS-OCEANIC SHIPPING. 

ASIDE FROM THE PRINCIPLE THAT IF THE ORDER IS JUSTIFIED BY A LAWFUL
PURPOSE, IT IS NOT RENDERED ILLEGAL BY SOME OTHER MOTIVE IN THE MIND OF
THE OFFICER ISSUING IT,  FN7  THE ALLEGATIONS OF THE COMPLAINT ARE MERE
CONCLUSIONS UNSUPPORTED BY ANY FACTS PLEADED AND ARE, THEREFORE,
INSUFFICIENT.  FN8 

THE ARGUMENT THAT THE ORDER AMOUNTS TO AN UNREASONABLE SEARCH AND
SEIZURE FORBIDDEN BY THE FOURTH AMENDMENT, IS ANSWERED BY THE FACT THAT
IT DOES NOT CALL FOR THE PRODUCTION OR INSPECTION OF ANY OF APPELLANT'S
BOOKS OR PAPERS.  FN9 

THE COMPLAINT ASSERTS THE APPELLANT IS THE ONLY CARRIER WHICH HAS
BEEN REQUIRED, PURSUANT TO SEC. 21, TO FILE A RECORD OF RATES ACTUALLY
CHARGED.  THE SECTION, HOWEVER, PLAINLY AUTHORIZES THE MAKING OF SUCH
AN ORDER DIRECTED TO A SINGLE CARRIER.  NEVERTHELESS, THE APPELLANT
CHARGES SUCH ACTION IS UNREASONABLE AND ARBITRARY AND VIOLATES THE
FIFTH AMENDMENT.  THE BILL ITSELF DISCLOSES THE CONFERENCE CARRIERS
HAVE FILED SCHEDULES OF THEIR RATES AND THE ACT REQUIRES THAT IF ANY
CONTRACT FOR A CHANGE OF THOSE RATES IS MADE THE NEW RATES MAY BE
CHARGED ONLY AFTER THE BOARD HAS APPROVED THE AGREEMENT.  FN10  THE
GRAVAMEN OF THE COMPLAINT DOES NOT APPEAR TO BE THAT THE APPELLANT IS
REQUIRED TO SUPPLY INFORMATION NOT FURNISHED BY THE CONFERENCE LINES,
OR DIFFERENT INFORMATION FROM THAT WHICH THE CONFERENCE LINES FILE WITH
THE SECRETARY, BUT THAT THE CONFERENCE LINES ARE NOT COMPELLED TO
ADHERE TO THE RATES NAMED IN THEIR SCHEDULES.  THERE IS, HOWEVER, NO
SHOWING THAT THIS CIRCUMSTANCE INJURES THE APPELLANT.  THE DATA CALLED
FOR RELATED TO RATES CHARGED IN THE PAST, - RATES FIXED BY THE
APPELLANT WITHOUT CONSTRAINT; AND THE BILL MAKES NO CHARGE THAT
COMPLIANCE WITH THE ORDER WILL IN ANY WISE RESTRICT THE APPELLANT'S
FREEDOM TO DEVIATE FROM THOSE PAST RATES IN THE FUTURE.  THE CASE MADE
BY THE BILL FAILS TO EXHIBIT DISCRIMINATION IN FACT AS BETWEEN
APPELLANT AND ITS COMPETITORS, MUCH LESS ARBITRARY AND UNJUSTIFIABLE
DISCRIMINATION. 

SECOND.  IT IS EARNESTLY CONTENDED THAT TITLE IV OF THE LEGISLATIVE
APPROPRIATION ACT OF JUNE 30, 1932, AS AMENDED,  FN11  DID NOT
AUTHORIZE THE ABOLITION OF THE SHIPPING BOARD AND THE TRANSFER OF ITS
FUNCTIONS TO THE DEPARTMENT OF COMMERCE BY EXECUTIVE ORDER.  TITLE III
OF THE ACT REORGANIZED THE SHIPPING BOARD; AND IT IS SAID THAT CONGRESS
WOULD NOT HAVE TAKEN THIS ACTION HAD IT INTENDED TO INCLUDE THE
SHIPPING BOARD WITHIN THE SCOPE OF SEC. 402 OF THE ACT, WHICH DEFINES
EXECUTIVE AGENCIES THE PRESIDENT MAY ABOLISH OR WHOSE FUNCTIONS HE MAY
TRANSFER AS "ANY COMMISSION, BOARD, BUREAU, DIVISION, SERVICE, OR
OFFICE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT."  THAT THIS IS TRUE
IS ATTESTED BY THE FACT THAT SEC. 406 WITHHELD FROM THE PRESIDENT THE
AUTHORITY TO ABOLISH OR TRANSFER THE FUNCTIONS OF THE SHIPPING BOARD. 
BUT WHEN THE ACT WAS AMENDED MARCH 3, 1933,  FN12  THE PROHIBITION WAS
OMITTED AND THE PHRASE "INDEPENDENT ESTABLISHMENT" WAS ADDED TO THE
ENUMERATION OF EXECUTIVE AGENCIES IN SEC. 402.  AFTER THESE CHANGES
WERE MADE THE PRESIDENT, BY EXECUTIVE ORDER DATED JUNE 10, 1933, MADE
THE TRANSFER.  AS REQUIRED BY THE ACT OF JUNE 30, 1932, HE TRANSMITTED
A COPY OF THE ORDER TO THE CONGRESS, WHICH ADJOURNED A FEW DAYS AFTER
ITS RECEIPT.  WHATEVER DOUBT MAY BE ENTERTAINED AS TO THE INTENT OF
CONGRESS THAT THE SHIPPING BOARD SHOULD BE SUBJECT TO TRANSFER BY THE
PRESIDENT, AND, IF SO, WHETHER THE ORDER LAY BEFORE CONGRESS THE
REQUISITE NUMBER OF DAYS TO SATISFY THE STATUTORY MANDATE, CONGRESS
APPEARS TO HAVE RECOGNIZED THE VALIDITY OF THE TRANSFER AND RATIFIED
THE PRESIDENT'S ACTION BY THE APPROPRIATION ACTS OF APRIL 7, 1934,
FN13  MARCH 22, 1935,  FN14  AND MAY 15, 1936,  FN15  ALL OF WHICH MAKE
APPROPRIATIONS TO THE DEPARTMENT OF COMMERCE FOR SALARIES AND EXPENSES
TO CARRY OUT THE PROVISIONS OF THE SHIPPING ACT AS AMENDED AND REFER TO
THE EXECUTIVE ORDER.  THE APPELLANT INSISTS THAT THESE REFERENCES WERE
CASUAL AND ARE NOT TO BE TAKEN AS RATIFYING THE PRESIDENT'S ACTION.  WE
NEED NOT STOP TO CONSIDER THE ARGUMENT SINCE, BY THE MERCHANT MARINE
ACT OF 1936,  FN16  SEC. 204(A), THE FUNCTIONS OF THE FORMER SHIPPING
BOARD ARE REFERRED TO AS "NOW VESTED IN THE DEPARTMENT OF COMMERCE
PURSUANT TO SEC. 12 OF THE PRESIDENT'S EXECUTIVE ORDER NO. 6166." 

IT REMAINS TO DEAL WITH THE CONTENTIONS THAT CONGRESS LACKED THE
POWER EITHER TO TRANSFER OR TO RATIFY THE TRANSFER OF THE DUTIES OF THE
SHIPPING BOARD TO THE SECRETARY OF COMMERCE BY DELEGATING TO THE
PRESIDENT AUTHORITY SO TO DO BY EXECUTIVE ORDER, SUBJECT TO THE
APPROVAL OF CONGRESS, AND THAT THE PRESIDENT, IN EXERCISING THE POWER
DELEGATED TO HIM, EXCEEDED HIS AUTHORITY BECAUSE HE ACTED WITHOUT
NOTICE AND HEARING AND FAILED IN THE ORDER ADEQUATELY TO SPECIFY THE
GROUNDS FOR HIS ACTION.  WE FIND IT UNNECESSARY TO DECIDE THE QUESTIONS
SOUGHT TO BE RAISED IN THIS CONNECTION.  ON JUNE 29, 1936, CONGRESS
ADOPTED THE MERCHANT MARINE ACT.  BY SEC. 204(A) OF THAT STATUTE IT WAS
PROVIDED:    "ALL THE FUNCTIONS, POWERS, AND DUTIES VESTED IN THE
FORMER UNITED STATES SHIPPING BOARD BY THE SHIPPING ACT, 1916,  ...
AND AMENDMENTS,  ...  AND NOW VESTED IN THE DEPARTMENT OF COMMERCE
PURSUANT TO SECTION 12 OF THE PRESIDENT'S EXECUTIVE ORDER OF JUNE 10,
1933, ARE HEREBY TRANSFERRED TO THE UNITED STATES MARITIME COMMISSION
..." 

THE COMMISSION IS CREATED BY THE ACT.  BY SEC. 204(B) IT IS
AUTHORIZED TO ADOPT ALL NECESSARY RULES AND REGULATIONS TO CARRY OUT
THE POWERS, DUTIES, AND FUNCTIONS VESTED IN IT BY THE ACT.  OCTOBER 21,
1936, AFTER ORGANIZATION, THE COMMISSION PROMULGATED AN ORDER (GENERAL
ORDER NO. 2) FN17  IN WHICH IT DECLARED: 

"...  ALL ORDERS,  ...  WHICH HAVE BEEN ISSUED OR AUTHORIZED BY  ...
THE DEPARTMENT OF COMMERCE, IN THE EXERCISE OF THE FUNCTIONS, POWERS,
AND DUTIES TRANSFERRED TO THIS COMMISSION BY THE MERCHANT MARINE ACT,
1936, AND WHICH ARE IN EFFECT AT THE TIME OF SUCH TRANSFER, SHALL
CONTINUE IN EFFECT, INSOFAR AS NOT IN CONFLICT WITH SAID ACT, UNTIL
MODIFIED, TERMINATED, SUPERSEDED, OR REPEALED BY THIS COMMISSION OR BY
OPERATION OF LAW;..." 

WE ARE OF OPINION THAT THE ACT OF 1936 AND THE COMMISSION'S ORDER
RENDER MOOT THE CONSTITUTIONAL QUESTIONS SOUGHT TO BE RAISED BY THE
APPELLANT EVEN THOUGH WE ASSUME, WITHOUT DECIDING, THAT THE SECRETARY
OF COMMERCE HAD NO POWER TO ISSUE THE ORDER OF NOVEMBER 18, 1935.  THAT
ORDER WAS ADMINISTRATIVE IN CHARACTER.  IT DETERMINED NO RIGHTS AND
PRESCRIBED NO DUTIES OF THE APPELLANT AS AN OCEAN CARRIER.  IT DEMANDED
THE FILING OF DATA.  NO NOTICE OR HEARING WAS PREREQUISITE TO ITS
ISSUE.  IT WAS STILL IN FIERI WHEN THE UNITED STATES MARITIME
COMMISSION CAME INTO EXISTENCE.  BY VIRTUE OF THE ACTION OF THAT
COMMISSION IT IS CONTINUED IN FORCE AND THE APPELLANT IS COMMANDED TO
OBEY IT.  THE APPELLANT CONCEDES THAT IF THE ORDER WAS WITHIN THE
CONSTITUTIONAL AND STATUTORY POWERS OF THE SHIPPING BOARD, AND HAD BEEN
MADE BY THAT BOARD, THERE COULD BE NO QUESTION OF ITS VALIDITY.  AS IT
HAS BECOME AN OUTSTANDING ADMINISTRATIVE ORDER OF A COMMISSION HAVING
THE POWERS AND DUTIES FORMERLY VESTED IN THE SHIPPING BOARD THE
APPELLANT IS IN NO POSITION TO CONTEND THAT, AS IT NOW AFFECTS THE
APPELLANT, THE ORDER IS VOID BECAUSE ISSUED IN THE ALLEGED
UNCONSTITUTIONAL EXERCISE OF THE POWERS OF THE SHIPPING BOARD BY THE
SECRETARY OF COMMERCE. 

THE DECREE IS AFFIRMED. 

FN1  14 F.SUPP.  407. 

FN2  ACT OF SEPT. 7, 1916, C. 451, SEC. 21, 39 STAT. 728, 736, 46
U.S.C. SEC. 820.  THE SUIT WAS INSTITUTED UNDER SEC. 31 OF THE SHIPPING
ACT, 39 STAT. 738, 46 U.S.C. SEC. 830, WHEREBY THE VENUE AND PROCEDURE
IN SUITS TO RESTRAIN ENFORCEMENT OF AN ORDER OF THE SHIPPING BOARD ARE
MADE THE SAME AS IN SIMILAR SUITS RESPECTING ORDERS OF THE INTERSTATE
COMMERCE COMMISSION.  (JUDICIAL CODE, SEC. 208, 28 U.S.C. 46, AND THE
ACT OF OCTOBER 22, 1913, C. 32, 38 STAT. 219, 28 U.S.C. SECS. 43, 44,
45, AND 47, WHEREBY THE VENUE OF A SUIT BROUGHT TO SET ASIDE AN ORDER
OF THE INTERSTATE COMMERCE COMMISSION IS THE JUDICIAL DISTRICT IN WHICH
THE PETITIONER HAS ITS PRINCIPAL OFFICE.)  THE COMPLAINANT NAMED AND
ATTEMPTED TO SERVE AS DEFENDANTS, IN ADDITION TO THE UNITED STATES, THE
DEPARTMENT OF COMMERCE, THE SHIPPING BOARD BUREAU OF THE DEPARTMENT OF
COMMERCE, DANIEL C. ROPER, INDIVIDUALLY AND AS SECRETARY OF COMMERCE,
JAMES C. PEACOCK, INDIVIDUALLY AND AS DIRECTOR OF THE SHIPPING BOARD
BUREAU, AND LAMAR HARDY, UNITED STATES ATTORNEY FOR THE SOUTHERN
DISTRICT OF NEW YORK.  THE SUIT WAS DISMISSED AS TO MANY OF THESE
DEFENDANTS FOR WANT OF SERVICE OR FOR WANT OF PROPER JOINDER AS
DEFENDANTS BUT THE ACTION WAS MAINTAINABLE AS THE UNITED STATES IS, BY
THE STATUTES, MADE THE PROPER PARTY DEFENDANT IN SUCH CASES.  NO POINT
IS HERE MADE AS TO THE ACTION BELOW DISMISSING DEFENDANTS FROM THE
CAUSE. 

FN3  ACT OF JUNE 30, 1932, C. 314, 47 STAT. 382, 413. 

FN4  ACT OF SEPTEMBER 7, 1916, SEC. 15, C. 451, 39 STAT. 728, 733, 46
U.S.C. SEC. 814. 

FN5  46 U.S.C. 826. 

FN6  46 U.S.C. 812-816. 

FN7  DAKOTA CENTRAL TELEPHONE CO. V. SOUTH DAKOTA, 250 U.S. 163,
184.  PHILADELPHIA & TRENTON R. CO. V. STIMPSON, 14 PET. 448, 458, 459;
UNITED STATES V. CHEMICAL FOUNDATION, 272 U.S. 1, 14, 15. 

FN8  MOORE V. GREENE, 19 HOW.  69, 72; ST. LOUIS & SAN FRANCISCO RY.
CO. V. JOHNSTON, 133 U.S. 566, 577; GARRETT V. LOUISVILLE & N.R. CO.,
235 U.S. 308, 313; NORTZ V. UNITED STATES, 294 U.S. 317, 324-5;
EINSTEIN V. SCHNEBLY, 89 FED. 540, 548. 

FN9  INTERSTATE COMMERCE COMM'N V. BAIRD, 194 U.S. 25, 45, 46. 
COMPARE OLMSTEAD V. UNITED STATES, 277 U.S. 438, 463; BALTIMORE & OHIO
R. CO. V. INTERSTATE COMMERCE COMM'N, 221 U.S. 612. 

FN10  46 U.S.C. 814. 

FN11  47 STAT. 413; 47 STAT. 1517. 

FN12  47 STAT. 1517. 

FN13  C. 104, TITLE III, 48 STAT. 529, 566. 

FN14  C. 39, TITLE III, 49 STAT. 67, 99. 

FN15  C. 405, 49 STAT. 1309, 1345. 

FN16  JUNE 29, 1936, C. 858, 49 STAT. 1985. 

FN17  THE FEDERAL REGISTER, NO. 159, OCTOBER 23, 1936, P. 1917. 
..END :




















DUPONT V. UNITED STATES, 300 U.S. 150 


NO. 332.  ARGUED JANUARY 11, 1937.  - DECIDED FEBRUARY 1, 1937.  - 83
F.(2D) 951, AFFIRMED. 


1.  A BROKER TRADING ON THE NEW YORK COTTON EXCHANGE WAS INSTRUCTED BY
A CUSTOMER, FOR WHOSE ACCOUNT COTTON FOR FUTURE DELIVERY WAS BEING
HELD, TO TRANSFER THE ACCOUNT TO OTHER BROKERS.  THE INSTRUCTIONS WERE
GIVEN AT THE REQUEST OF THE BROKER, WHO WISHED TO BE RELIEVED OF THE
ACCOUNT, AND NO COMMISSION WAS CHARGED ON THE TRANSACTION.  THE
TRANSFER WAS EFFECTED, ACCORDING TO THE CUSTOM ON THE EXCHANGE IN
RESPECT OF ALL TRANSFERS FROM ONE MEMBER TO ANOTHER, BY THE BROKER'S
DELIVERING A "SOLD" MEMORANDUM TO THE TRANSFEREES, AND RECEIVING A
"BOUGHT" MEMORANDUM IN RETURN.  HELD: 

(1)  THE STAMP TAX IMPOSED BY SEC. 800, SCHEDULE A(4) OF THE REVENUE
ACT OF 1926 UPON "EACH SALE, AGREEMENT OF SALE, OR AGREEMENT TO SELL
(NOT INCLUDING SO-CALLED TRANSFERRED OR SCRATCH SALES)  ...  AT, OR
UNDER THE RULES OR USAGES OF ANY EXCHANGE  ...  FOR FUTURE
DELIVERY...."  WAS APPLICABLE.  P. 153. 

(2)  THE TRANSACTION WAS NOT A "TRANSFERRED" OR "SCRATCH" SALE WITHIN
THE MEANING OF THE PRESCRIBED EXEMPTION.  P. 152. 

(3)  UNDER THE RULES AND PRACTICE OF THE COTTON EXCHANGE THE
TRANSACTION WAS AN ACTUAL SALE.  P. 153. 

2.  THE TAX IMPOSED BY SEC. 800, SCHEDULE A(4) OF THE REVENUE ACT OF
1926 IS NOT A TAX UPON THE BUSINESS TRANSACTED BUT IS AN EXCISE UPON
THE PRIVILEGE, OPPORTUNITY, OR FACILITY OFFERED AT EXCHANGES FOR THE
TRANSACTION OF THE BUSINESS.  P. 153. 

DUPONT ET AL. V. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

CERTIORARI, 299 U.S. 531, TO REVIEW A JUDGMENT AFFIRMING A JUDGMENT
DISMISSING THE COMPLAINT IN A SUIT TO RECOVER TAXES PAID. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

STAMP TAX UPON "EACH SALE, AGREEMENT OF SALE, OR AGREEMENT TO SELL (NOT
INCLUDING SO-CALLED TRANSFERRED OR SCRATCH SALES) ...  AT, OR UNDER THE
RULES OR USAGES OF, ANY EXCHANGE  ...  FOR FUTURE DELIVERY."  WHETHER
THE TAX IS PAYABLE UPON A BROKER'S TRANSFER OF A CUSTOMER'S ACCOUNT IN
COTTON FUTURES TO ANOTHER BROKER THROUGH THE COTTON EXCHANGE IS THE
MATTER IN CONTROVERSY.  THE CIRCUIT COURT OF APPEALS HAS HELD THE
TRANSACTION TAXABLE.  FN2  A CONFLICT OF DECISION MOVED US TO GRANT
CERTIORARI.  FN3 

PETITIONERS ARE MEMBERS OF A PARTNERSHIP TRADING ON THE NEW YORK
COTTON EXCHANGE.  ON BEHALF OF A CUSTOMER THEY PURCHASED COTTON FOR
FUTURE DELIVERY.  THEY WERE INSTRUCTED BY THE CUSTOMER TO TRANSFER THE
ACCOUNT TO OTHER BROKERS.  TO ACCOMPLISH THIS PETITIONERS DELIVERED A
"SOLD" MEMORANDUM TO THE TRANSFEREE OF THE ACCOUNT, WHO, IN TURN,
DELIVERED A "BOUGHT" MEMORANDUM TO THE PETITIONERS.  NO COMMISSION WAS
CHARGED BECAUSE THE INSTRUCTIONS TO TRANSFER HAD BEEN GIVEN AT
PETITIONERS' REQUEST, AS THEY DESIRED TO BE RELIEVED OF THE ACCOUNT. 
IN ORDER TO RECORD SUCH A TRANSFER WITH THE EXCHANGE THE CUSTOM WAS TO
USE BOUGHT AND SOLD MEMORANDA IN THE FORM INVARIABLY EMPLOYED BY
MEMBERS OF THE EXCHANGE IN PURCHASE AND SALE OF COTTON FOR FUTURE
DELIVERY.  THE PETITIONERS AFFIXED TO THE SOLD MEMORANDUM STAMPS IN THE
PROPER AMOUNT AND AFTER DENIAL OF A REFUND, BROUGHT ACTION FOR THE
AMOUNT OF THE TAX. 

THE PETITIONERS CONTEND THAT NO SALE, AGREEMENT OF SALE OR AGREEMENT
TO SELL WAS IN FACT MADE, THOUGH FOR CONVENIENCE, AND BECAUSE OF LACK
OF OTHER MEDIUM TO EVIDENCE THE TRANSFER, PAPERS IN FORM AGREEMENTS OF
SALE WERE EMPLOYED.  THE GOVERNMENT INSISTS THAT THE TAX IS ESSENTIALLY
UPON THE PRIVILEGE OF USING THE FACILITIES OF AN EXCHANGE AND
PETITIONERS HERE EXERCISED THIS PRIVILEGE AND A SALE WAS IN FACT MADE. 
WE HOLD THE TAX WAS LAWFULLY IMPOSED AND THE PETITIONERS ARE NOT
ENTITLED TO RECOVER THE VALUE OF THE STAMPS. 

1.  THE TRANSACTION WAS NOT A "SCRATCH" OR "TRANSFERRED" SALE WITHIN
THE MEANING OF THE EXEMPTION FOUND IN THE SECTION.  A SCRATCH OR
TRANSFERRED SALE IS ONE IN WHICH THERE IS AN OFFSETTING PURCHASE AND
SALE AT THE SAME PRICE ON THE SAME DAY.  WHERE A BROKER, IN ORDER TO
FILL A CUSTOMER'S ORDER, BUYS A LARGER AMOUNT AND SELLS THE EXCESS TO A
THIRD BROKER, DIRECTING THE SELLING BROKER TO DELIVER THE EXCESS TO THE
BROKER WHO HAS PURCHASED IT, AND DIRECTING THE BROKER WHO PURCHASES THE
EXCESS TO TAKE DELIVERY FROM THE SELLING BROKER, THE NAME OF THE
INTERMEDIATE BROKER IS ERASED FROM THE RECORDS OF THE EXCHANGE SO THAT
THE SALE OF THE EXCESS APPEARS AS A SALE DIRECT FROM THE ONE TO THE
OTHER OF THE TWO REMAINING BROKERS.  THE EXEMPTION ALSO COVERS TRADING
BY A SCALPING BROKER WHO MAKES HIS PROFIT IN FRACTIONAL MOVEMENTS ON
THE EXCHANGE, BUYING AND SELLING WITH GREAT RAPIDITY, THUS OFTEN
PURCHASING AND SELLING THE SAME AMOUNT OF THE COMMODITY AT THE SAME
PRICE WITHIN A FEW MOMENTS OR HOURS.  BY AGREEMENT AMONGST THE MEMBERS
HIS NAME IS SCRATCHED OUT OF THE RECORDS OF THE EXCHANGE AND HIS
TEMPORARY RIGHTS AND LIABILITIES DO NOT APPEAR UPON ITS RECORDS. 
ACCORDINGLY, THE TREASURY REGULATIONS IN FORCE SINCE 1918 REQUIRE THAT
PURCHASE AND SALE BE CONSUMMATED ON THE SAME DAY IF THE EXEMPTION IS TO
APPLY AND THAT THE INTERMEDIATE BROKER INSTRUCT THE BROKER WHO SOLD TO
HIM TO DELIVER TO THE OTHER WHO BOUGHT FROM HIM.  FN4 

2.  THE TAX IS NOT UPON THE BUSINESS TRANSACTED BUT IS AN EXCISE UPON
THE PRIVILEGE, OPPORTUNITY, OR FACILITY OFFERED AT EXCHANGES FOR THE
TRANSACTION OF THE BUSINESS.  IT IS AN EXCISE UPON THE FACILITIES USED
IN THE TRANSACTION OF THE BUSINESS SEPARATE AND APART FROM THE BUSINESS
ITSELF.  FN5  IN THIS VIEW IT IS IMMATERIAL WHETHER THE TRANSFER OF THE
ACCOUNT CONSTITUTED A SALE.  UNQUESTIONABLY THE PETITIONERS USED THE
FACILITIES OF THE EXCHANGE FOR OFFSETTING THEIR OBLIGATION AS A
PURCHASING BROKER BY ARRANGING THAT ANOTHER BROKER SHOULD TAKE OVER
THAT OBLIGATION UNDER THE RULES OF THE EXCHANGE.  SUCH A TRANSACTION
COMES WITHIN THE INTENT OF THE STATUTE AND RENDERS PETITIONERS LIABLE
FOR THE TAX. 

3.  UNDER THE RULES AND PRACTICE OF THE COTTON EXCHANGE THE
TRANSACTION TAXED WAS AN ACTUAL SALE.  THE FACT THAT THE SALE WAS MADE
FOR THE PURPOSE OF TRANSFERRING A BROKERAGE ACCOUNT IS IRRELEVANT. 
WHEN THE PETITIONERS PURCHASED ON THE EXCHANGE THE FUTURE CONTRACTS FOR
THEIR CUSTOMER THE SELLING BROKER HANDED THE PETITIONERS A MEMORANDUM
AGREEING TO DELIVER AT THE DATE AND PRICE THEREIN SPECIFIED AND THE
PETITIONERS GAVE THE SELLING BROKER A SIMILAR PURCHASE MEMORANDUM. 
THIS EACH WAS REQUIRED TO DO BY THE BY-LAWS OF THE EXCHANGE.  AS A
RESULT OF THE OPERATIONS OF THE CLEARING HOUSE THE PETITIONERS WOULD,
AT THE CLOSE OF THE DAY'S BUSINESS, BE UNDER OBLIGATION TO PAY THE
CLEARING HOUSE UPON DELIVERY BEING MADE AT THE FUTURE DATE AND THEY
WOULD HAVE A CORRELATIVE RIGHT TO RECEIVE FROM THE CLEARING HOUSE THE
COTTON PURCHASED.  ALTHOUGH THE BROKER WHO MADE THE SALE TO THE
PETITIONERS WOULD HAVE A RIGHT TO RECEIVE FROM HIS PRINCIPAL THE
NECESSARY COTTON TO MAKE DELIVERY ACCORDING TO THE SALE, AND ALTHOUGH
THE PETITIONERS WHO HAD BOUGHT THE COTTON WOULD BE UNDER AN OBLIGATION
TO THEIR CUSTOMER TO DELIVER TO HIM, BOTH BROKERS WERE, UNDER THE BY
LAWS OF THE EXCHANGE, PRINCIPALS IN THE TRANSACTION.  WHEN, THEREFORE,
THE CUSTOMER ORDERED THE TRANSFER OF THE ACCOUNT THE PETITIONERS COULD
ONLY EFFECT THIS BY SELLING THE FUTURES TO THE SUBSTITUTED BROKER WHO,
IN TURN, BECAME OBLIGATED, SO FAR AS THE EXCHANGE WAS CONCERNED, AS
PRINCIPAL, TO ACCEPT DELIVERY OF THE COTTON ACCORDING TO HIS PURCHASE
FROM THE PETITIONERS.  THE OBLIGATION ASSUMED BY THE PETITIONERS WHEN
THEY ENTERED INTO PURCHASE CONTRACTS COULD BE SATISFIED BY MAKING
PAYMENT TO THE CLEARING HOUSE OR OFFSET BY SELLING TO ANOTHER BROKER
AND SO OBTAINING THAT BROKER'S CONTRACT TO TAKE DELIVERY OF THE COTTON
FROM THE CLEARING HOUSE.  IN NO OTHER WAY COULD THE PETITIONERS RELIEVE
THEMSELVES OF THAT OBLIGATION. 

THE JUDGMENT IS AFFIRMED. 

FN1  26 U.S.C. 903. 

FN2  83 F.(2D) 951. 

FN3  SEE UNITED STATES V. UHLMANN GRAIN CO., 84 F.(2D) 901. 

FN4  TREASURY REGULATIONS 40 UNDER R.A. 1918, ARTICLES 23(A) AND
33(3)(C).  TREASURY REGULATIONS 71, ARTICLES 44(A) AND 125(3)(C). 

FN5  NICOL V. AMES, 173 U.S. 509, 519, 523. 
..END :











GT. NORTHERN RY. V. WASHINGTON, 300 U.S. 154 


NO. 20.  SUBMITTED OCTOBER 14, 1936.  RESTORED TO THE DOCKET OCTOBER 26,
1936.  ARGUED DECEMBER 7, 8, 1936.  - DECIDED FEBRUARY 1, 1937.  - 184
WASH. 648 - 52 P.(2D) 1274, REVERSED. 


1.  A STATE MAY REQUIRE A RAILROAD COMPANY ENGAGED IN INTERSTATE
COMMERCE TO PAY A FEE, IN ADDITION TO GENERAL TAXATION OF ITS PROPERTY
IN THE STATE, TO COVER THE EXPENSE OF LOCAL INSPECTION AND SUPERVISION
WITHIN THE STATE'S POLICE POWER; BUT THE EXACTION VIOLATES BOTH THE
COMMERCE CLAUSE AND THE FOURTEENTH AMENDMENT IF, BEYOND THOSE
LEGITIMATE PURPOSES, IT IS MADE AND USED TO DEFRAY THE COST OF OTHER
ACTIVITIES OF THE STATE, SUCH AS LOCAL REPARATION PROCEEDINGS AND
LITIGATION BEFORE THE INTERSTATE COMMERCE COMMISSION, IN BEHALF OF
SHIPPERS.  P. 159. 

2.  A STATUTE (C. 107, L. WASH., 1929) REQUIRES PUBLIC UTILITIES
GENERALLY, INCLUDING RAILROADS, TO PAY INTO A COMMON FUND EACH YEAR A
FEE OF 1/10TH OF ONE PER CENT. OF GROSS OPERATING REVENUE OF THE YEAR
PRECEDING, FOR USE IN ADMINISTERING THE STATE PUBLIC SERVICE COMMISSION
LAW.  HELD: 

(1)  THAT THE STATUTE IS NOT VOID ON ITS FACE, AS APPLIED TO AN
INTERSTATE RAILROAD, MERELY BECAUSE IT EXACTS FEES AT THE SAME RATE
FROM THE RAILROAD AND OTHER PUBLIC UTILITIES AS WELL, OR BECAUSE THE
PROCEEDS COMPOSE A COMMON FUND WHICH MAY BE USED NOT ONLY FOR EXPENSE
OF INSPECTION AND SUPERVISION, BUT FOR OTHER PURPOSES.  P. 161. 

(2)  BUT, TO SUSTAIN THE EXACTION IN THE CASE OF AN INTERSTATE
RAILROAD, THE BURDEN RESTS UPON THE STATE TO SHOW THAT THE SUMS
COLLECTED FROM THE RAILROAD DO NOT EXCEED WHAT IS REASONABLY NEEDED IN
ITS CASE FOR INSPECTION AND SUPERVISION SERVICE.  FOOTE & CO. V.
STANLEY, 232 U.S. 494.  P. 162. 

(3)  THIS BURDEN WAS NOT SUSTAINED BY THE EVIDENCE IN THIS CASE.  P.
165. 

3.  WHEN A CLAIM OF FEDERAL RIGHT HAS BEEN DENIED BY A STATE COURT
UPON THE BASIS OF A FINDING OF FACT OR OF MIXED FACT AND LAW, THIS
COURT MUST EXAMINE THE EVIDENCE AND DETERMINE WHETHER IT SUPPORTS THE
DECISION AGAINST THE FEDERAL CLAIM.  NORRIS V. ALABAMA, 294 U.S. 587. 
P. 165. 

GREAT NORTHERN RAILWAY CO. V. WASHINGTON. 

APPEAL FROM THE SUPREME COURT OF WASHINGTON. 

APPEAL FROM A JUDGMENT WHICH REVERSED A JUDGMENT FOR THE RAILWAY
COMPANY IN ITS ACTION TO RECOVER FEES CLAIMED TO HAVE BEEN
UNCONSTITUTIONALLY EXACTED BY THE STATE. 

MR. JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A JUDGMENT OF THE SUPREME COURT OF WASHINGTON
FN1  IN AN ACTION BROUGHT BY THE APPELLANT TO RECOVER FEES FOR THE
YEARS 1929-1933 PAID UNDER PROTEST TO THE STATE DEPARTMENT OF PUBLIC
WORKS.  THE RELEVANT STATUTORY PROVISIONS ARE:  FN2 

"SECTION 1.  THAT HEREAFTER EVERY PERSON, FIRM OR CORPORATION ENGAGED
IN BUSINESS AS A PUBLIC UTILITY AND SUBJECT TO REGULATION AS TO RATES
AND CHARGES BY THE DEPARTMENT OF PUBLIC WORKS, EXCEPT AUTO
TRANSPORTATION COMPANIES AND STEAMBOAT COMPANIES HOLDING CERTIFICATES
UNDER CHAPTER 248 OF THE LAWS OF 1927, SHALL, ON OR BEFORE THE FIRST
DAY OF APRIL OF EACH YEAR, FILE WITH THE DEPARTMENT OF PUBLIC WORKS A
STATEMENT ON OATH SHOWING ITS GROSS OPERATING REVENUE FOR THE PRECEDING
CALENDAR YEAR OR PORTION THEREOF AND PAY TO THE DEPARTMENT OF PUBLIC
WORKS A FEE OF 1/10 OF ONE PER CENT OF SUCH GROSS OPERATING REVENUE:
PROVIDED, THAT THE FEE SO PAID SHALL IN NO CASE BE LESS THAN TEN
DOLLARS." 

"SEC. 2.  ALL SUMS COLLECTED BY THE DIRECTOR OF PUBLIC WORKS UNDER
THE PROVISIONS OF THIS ACT SHALL WITHIN THIRTY DAYS AFTER THEIR RECEIPT
BE PAID TO THE STATE TREASURER, AND BY HIM DEPOSITED IN A FUND TO BE
KNOWN AS THE PUBLIC SERVICE REVOLVING FUND." 

THE SUPREME COURT OF THE STATE HAS DEFINED THE EXACTION AS A
REGULATORY OR INSPECTION FEE, AND HAS DECLARED THAT THE FUND CREATED BY
THE SUMS COLLECTED MUST BE USED SOLELY FOR ADMINISTERING THE STATE
PUBLIC SERVICE COMMISSION LAW.  FN3 

THE COMPLAINT  FN4  ALLEGES THAT THE DEPARTMENT OF PUBLIC WORKS
EXERCISES JURISDICTION AND SUPERVISION OVER SUNDRY PUBLIC UTILITIES,
INCLUDING COMMON CARRIERS BY RAIL, ELECTRIC AND STREET RAILWAYS, GAS,
ELECTRICAL AND WATER COMPANIES, TELEGRAPH AND TELEPHONE COMPANIES,
WHARFINGERS, WAREHOUSEMEN, AND CARRIERS BY WATER, ENGAGES IN MANY
ACTIVITIES DISCONNECTED FROM, AND UNRELATED TO, THE INSPECTION AND
SUPERVISION OF RAIL CARRIERS, AND HAS A VARIETY OF DUTIES IN THE
ENFORCEMENT OF THE STATE'S POLICE POWER.  THE COMPLAINT AFFIRMS THAT
THE FEE IS NOT BASED UPON OR RESTRICTED TO THE COST OF LEGITIMATE
REGULATION OR SUPERVISION BUT IS USED TO DEFRAY THE COSTS OF OTHER
ACTIVITIES IN CONNECTION WITH RAILROADS AND ALSO OF SUPERVISING AND
INSPECTING UNRELATED PUBLIC UTILITIES AND OF PERFORMING OTHER DUTIES
THE EXPENSE OF WHICH CANNOT LEGITIMATELY BE IMPOSED UPON CARRIERS BY
RAIL; THAT THE FEE IS GROSSLY IN EXCESS OF THE REASONABLE COST OF
INSPECTION AND REGULATION OF RAILROADS; THAT, TO JANUARY 1, 1933, THERE
HAD ACCUMULATED FROM THE FEES COLLECTED MORE THAN $250,000 IN EXCESS OF
THE AMOUNT EXPENDED BY THE DEPARTMENT IN THE DISCHARGE OF ALL ITS
DUTIES; THAT THE STATUTE IS IN TRUTH A REVENUE MEASURE; THAT THE STATE
TAXES PLAINTIFF'S PROPERTY AND OTHER LIKE PROPERTY ON AN AD VALOREM
BASIS.  THE COMPLAINT CHARGES THAT THE FEE IS A BURDEN ON, AND A
REGULATION OF, INTERSTATE COMMERCE IN VIOLATION OF ARTICLE I, SEC. 8 OF
THE CONSTITUTION; IS SO ARBITRARY, EXCESSIVE, DISCRIMINATORY AND
UNEQUAL AS TO DENY THE PLAINTIFF EQUAL PROTECTION OF THE LAWS AND TO
DEPRIVE IT OF PROPERTY WITHOUT DUE PROCESS OF LAW, IN VIOLATION OF THE
FOURTEENTH AMENDMENT. 

THE ANSWER ADMITS PLAINTIFF'S PAYMENT UNDER PROTEST; ADMITS THAT THE
DEPARTMENT OF PUBLIC WORKS EXERCISES JURISDICTION AND SUPERVISION OVER
MANY CLASSES OF PUBLIC UTILITIES, INCLUDING COMMON CARRIERS, AND THAT
THE PLAINTIFF'S PROPERTY WITHIN THE STATE IS ASSESSED ON AN AD VALOREM
BASIS FOR TAXES LIKE OTHER PROPERTY; ADMITS PLAINTIFF'S CAPACITY TO
SUE, BUT DENIES SUBSTANTIALLY ALL OTHER ALLEGATIONS OF THE COMPLAINT. 

THE CASE WAS TRIED WITHOUT A JURY.  THE EVIDENCE LARGELY CONSISTED OF
THE ANNUAL REPORTS OF THE DEPARTMENT.  BY THE UNCONTRADICTED EVIDENCE
AND BY THE RELEVANT STATUTES THE FOLLOWING FACTS WERE ESTABLISHED.  THE
DEPARTMENT HAS JURISDICTION OF VARIOUS CLASSES OF PUBLIC UTILITIES,
INCLUDING RAILROADS, ELECTRIC AND STREET RAILWAYS, GAS, ELECTRIC AND
WATER COMPANIES, TELEGRAPH AND TELEPHONE COMPANIES, WHARFINGERS,
WAREHOUSEMEN, AND CARRIERS BY WATER, IN RESPECT OF WHICH IT EXERCISES
MANY REGULATORY AND SUPERVISORY DUTIES.  AS RESPECTS RAILROADS, THE
DEPARTMENT CONSTANTLY EXERCISES FUNCTIONS UNRELATED TO INSPECTION AND
SUPERVISION, INCLUDING THE STATUTORY DUTIES OF TAKING PART IN
LITIGATION BEFORE THE INTERSTATE COMMERCE COMMISSION AFFECTING THE
CITIZENS OF THE STATE, AND OF ACTING JUDICIALLY IN DECREEING REFUNDS OF
OVERCHARGES.  THESE FUNCTIONS, UNRELATED TO THE INSPECTION AND
REGULATION OF RAILROADS, ENTAIL LARGE EXPENSE.  BETWEEN 1929 AND 1933
THE LEGISLATURE MADE NO APPROPRIATION FROM THE STATE'S GENERAL FUND FOR
THE EXPENSES OF THE DEPARTMENT'S ACTIVITIES, ALL BEING PAID
INDISCRIMINATELY OUT OF THE DEPARTMENT'S FUND DERIVED FROM THE FEES
COLLECTED FROM BUSINESSES SUBJECT TO ITS JURISDICTION.  DURING THIS
PERIOD THE SURPLUS ACCUMULATED FROM SUCH RECEIPTS WAS $224,193.95,
WHICH WAS EXPENDED IN 1934 IN CARRYING ON INVESTIGATIONS OF, AND
LITIGATION WITH, PUBLIC UTILITY CORPORATIONS OTHER THAN RAILROADS.  NO
SEPARATE ACCOUNTS ARE KEPT, OR REQUIRED BY LAW TO BE KEPT, WITH RESPECT
TO THE EXPENSE OF THESE VARIOUS ACTIVITIES, AND IT IS IMPOSSIBLE TO
DETERMINE FROM THE RECORDS AND ACCOUNTS OF THE DEPARTMENT THE EXPENSE
OF INSPECTING AND REGULATING RAILROADS SEPARATE AND APART FROM THE
EXPENSE OF REGULATING OTHER UTILITIES OR OTHER FUNCTIONS OF THE
DEPARTMENT. 

THE PLAINTIFF CALLED THE DEPARTMENT'S AUDITOR WHO TESTIFIED THAT THE
CHARGE OF ONE-TENTH OF ONE PER CENT OF GROSS INCOME COLLECTED FROM
UTILITIES GOES TO BUILD UP A FUND FROM WHICH ALL THE DEPARTMENT'S
EXPENSES ARE PAID; THAT HE HAD FIGURES CLASSIFYING THE EXPENDITURES
ACCORDING TO THE VARIOUS KINDS OF UTILITIES WITH WHICH THE DEPARTMENT
IS CONCERNED.  THESE CALCULATIONS HE HAD MADE FOR HIMSELF, THERE BEING
NO DUTY UNDER THE LAW TO KEEP ACCOUNTS ON THIS BASIS.  HE TESTIFIED
THAT, IN COMPUTING THE EXPENDITURES IN CONNECTION WITH RAILROADS, HE
LUMPED THEM AS RAILROAD CHARGES AND MADE NO SEPARATION OF THE COSTS OF
INSPECTION AND REGULATION, THE COSTS OF RATE HEARINGS, AND THE COSTS OF
REPARATION PROCEEDINGS, ALTHOUGH THE EVIDENCE ESTABLISHES THAT MANY OF
THE RAILROAD CHARGES HAD TO DO WITH REPARATION CASES AND LITIGATION
BEFORE THE INTERSTATE COMMERCE COMMISSION.  AT THE CLOSE OF PLAINTIFF'S
CASE, THE DEFENDANT RECALLED THE AUDITOR AS ITS OWN WITNESS.  HE
TESTIFIED THAT THE DISBURSEMENTS CHARGEABLE TO THE RAILROADS FOR THE
PERIOD 1929 TO 1933, INCLUSIVE, EXCEEDED THE RECEIPTS FROM RAILROADS IN
THE SAME PERIOD BY $37,833.  HE DID NOT, HOWEVER, QUALIFY WHAT HE HAD
PREVIOUSLY STATED, THAT, IN MAKING UP THESE FIGURES, HE HAD LUMPED ALL
RAILROAD CHARGES, WHETHER FOR INSPECTION AND REGULATION OR INTERSTATE
COMMERCE CASES OR REPARATION CASES.  UPON CROSS-EXAMINATION IT
DEVELOPED THAT THE FIGURES HE SUBMITTED WERE NOT OFFICIAL, AND, SO FAR
AS THEY COVERED SALARY ITEMS, HAD BEEN MADE UP FROM SLIPS WHICH THE
VARIOUS EMPLOYEES, AT HIS REQUEST, HAD TURNED IN MONTHLY ALLOCATING THE
TIME EACH EMPLOYEE SPENT IN THE VARIOUS BRANCHES OF THE WORK, AND THE
WITNESS HAD NO PERSONAL KNOWLEDGE OF THE ACCURACY OF THESE SLIPS. 
PLAINTIFF OBJECTED TO THE TESTIMONY AND MOVED TO STRIKE IT ON THE
GROUND THAT IT WAS HEARSAY BUT THE COURT LET IT STAND, SUBJECT TO THE
OBJECTION.  A JUDGMENT AWARDED THE PLAINTIFF BY THE TRIAL COURT WAS
REVERSED BY THE SUPREME COURT. 

THE PRINCIPLES GOVERNING DECISION HAVE REPEATEDLY BEEN ANNOUNCED AND
WERE NOT QUESTIONED BELOW.  IN THE EXERCISE OF ITS POLICE POWER THE
STATE MAY PROVIDE FOR THE SUPERVISION AND REGULATION OF PUBLIC
UTILITIES, SUCH AS RAILROADS; MAY DELEGATE THE DUTY TO AN OFFICER OR
COMMISSION; AND MAY EXACT THE REASONABLE COST OF SUCH SUPERVISION AND
REGULATION FROM THE UTILITIES CONCERNED AND ALLOCATE THE EXACTION
AMONGST THE MEMBERS OF THE AFFECTED CLASS WITHOUT VIOLATING THE RULE OF
EQUALITY IMPOSED BY THE FOURTEENTH AMENDMENT.  FN5  THE SUPERVISION AND
REGULATION OF THE LOCAL STRUCTURES AND ACTIVITIES OF A CORPORATION
ENGAGED IN INTERSTATE COMMERCE, AND THE IMPOSITION OF THE REASONABLE
EXPENSE THEREOF UPON SUCH CORPORATION, IS NOT A BURDEN UPON, OR
REGULATION OF, INTERSTATE COMMERCE IN VIOLATION OF THE COMMERCE CLAUSE
OF THE CONSTITUTION.  FN6  A LAW EXHIBITING THE INTENT TO IMPOSE A
COMPENSATORY FEE FOR SUCH A LEGITIMATE PURPOSE IS PRIMA FACIE
REASONABLE.  FN7  IF THE EXACTION BE SO UNREASONABLE AND
DISPROPORTIONATE TO THE SERVICE AS TO IMPUGN THE GOOD FAITH OF THE LAW
FN8  IT CANNOT STAND EITHER UNDER THE COMMERCE CLAUSE OR THE FOURTEENTH
AMENDMENT.  FN9  THE STATE IS NOT BOUND TO ADJUST THE CHARGE AFTER THE
FACT, BUT MAY, IN ANTICIPATION, FIX WHAT THE LEGISLATURE DEEMS TO BE A
FAIR FEE FOR THE EXPECTED SERVICE, THE PRESUMPTION BEING THAT IF, IN
PRACTICE, THE SUM CHARGED APPEARS INORDINATE THE LEGISLATIVE BODY WILL
REDUCE IT IN THE LIGHT OF EXPERIENCE.  FN10  SUCH A STATUTE MAY, IN
SPITE OF THE PRESUMPTION OF VALIDITY, SHOW ON ITS FACE THAT SOME PART
OF THE EXACTION IS TO BE USED FOR A PURPOSE OTHER THAN THE LEGITIMATE
ONE OF SUPERVISION AND REGULATION AND MAY, FOR THAT REASON, BE VOID. 
FN11 AND A STATUTE FAIR UPON ITS FACE MAY BE SHOWN TO BE VOID AND
UNENFORCEABLE ON ACCOUNT OF ITS ACTUAL OPERATION.  FN12  IF THE
EXACTION BE CLEARLY EXCESSIVE IT IS BAD IN TOTO AND THE STATE CANNOT
COLLECT ANY PART OF IT.  FN13 

THE CONTENTION IS THAT THE CHALLENGED STATUTE IS VOID ON ITS FACE
SINCE IT DISCLOSES THAT THE FEE CHARGED THE APPELLANT IS NOT IMPOSED
FOR, OR LIMITED BY, THE REASONABLE COST OF SUPERVISION OR REGULATION OF
ITS BUSINESS; AND, IF THIS IS NOT SO, THE CASE MADE IN RESPECT OF THE
ACT'S OPERATION CAST ON THE APPELLEE THE BURDEN OF PROOF, WHICH IT
FAILED TO CARRY. 

THE SUPREME COURT OF THE STATE BASED ITS DECISION IN FAVOR OF THE
VALIDITY OF THE STATUTE ON TWO GROUNDS:  FIRST, THAT THE ACT IS NOT
UNCONSTITUTIONAL ON ITS FACE; SECONDLY, THAT, AS THE ANSWER DENIED THE
MATERIAL ALLEGATIONS OF THE COMPLAINT CONCERNING THE OPERATIVE EFFECT
OF THE ACT, THE PLAINTIFF HAD THE BURDEN OF PROOF, WHICH IT FAILED TO
SUSTAIN; AND, IF THE BURDEN WAS SHIFTED BY THE CASE MADE BY THE
PLAINTIFF, THE EVIDENCE PREPONDERATED IN FAVOR OF THE DEFENDANT. 

FIRST.  THE STATUTE DOES NOT EXHIBIT A FAILURE REASONABLY TO ADJUST
THE FEE TO THE EXPENSE OF THE SUPERVISION AND REGULATION OF RAILROADS. 
THE LEGISLATION IS TO BE ACCORDED THE PRESUMPTION OF FAIRNESS AND
REGULARITY.  IT CANNOT BE DEDUCED FROM THE PROVISIONS OF THE ACT THAT
THE AMOUNTS COLLECTED FROM THE RAILROADS GROSSLY EXCEED THOSE
LEGITIMATELY EXPENDED FOR INSPECTION AND REGULATION.  THE APPELLANT
INSISTS THAT SUCH IS THE NECESSARY INFERENCE FROM THE CIRCUMSTANCE THAT
THE SAME FEE IS EXACTED FROM PUBLIC UTILITIES GENERALLY, AND THE
COLLECTIONS GO INTO A SINGLE FUND AND ARE INDISCRIMINATELY DISBURSED
FOR THE MANY BRANCHES OF THE DEPARTMENT'S WORK.  BUT THESE FACTS,
WITHOUT MORE, DO NOT PROVE THAT THE AMOUNTS DERIVED FROM THE RAILROADS
ARE IN EXCESS OF THE LEGITIMATE EXPENSES OF INSPECTION AND REGULATION. 
IT MAY BE THAT, IN SPITE OF THIS LUMPING OF RECEIPTS AND EXPENDITURES,
THE FEES PAID BY THE RAILROADS ARE NO MORE THAN ENOUGH TO DEFRAY SUCH
EXPENSES.  THE COURT BELOW WAS, THEREFORE, JUSTIFIED IN REFUSING TO
HOLD THE STATUTE VOID ON ITS FACE. 

SECOND.  THE COURT THOUGHT THE PLAINTIFF HAD THE BURDEN OF SHOWING
THAT THE SUMS EXACTED FROM RAIL CARRIERS SUBSTANTIALLY EXCEEDED THE
AMOUNTS EXPENDED FOR REGULATION AND SUPERVISION, AND THE PROOFS OFFERED
WERE INSUFFICIENT TO SHIFT THE BURDEN TO THE DEFENDANT.  THIS VIEW WAS
ERRONEOUS.  FOOTE & CO. V. STANLEY, 232 U.S. 494. 

IN THAT CASE IT APPEARED THAT THE PLAINTIFFS WERE PACKERS OF OYSTERS
TAKEN FROM THE WATERS OF MARYLAND, VIRGINIA, AND NEW JERSEY, AND
SHIPPED TO BALTIMORE.  A STATUTE OF MARYLAND REQUIRED THAT THE OYSTERS
BE INSPECTED AT BALTIMORE.  IT IMPOSED A CHARGE OF ONE CENT A BUSHEL
"TO HELP DEFRAY THE EXPENSES OF SUCH INSPECTION AND THE OTHER EXPENSES
OF THE STATE FISHERY FORCE, UPON ALL OYSTERS UNLOADED FROM VESSELS AT
THE PLACE WHERE SAID OYSTERS ARE TO BE NO FURTHER SHIPPED IN BULK IN
VESSELS."  THE PLAINTIFFS REFUSED TO PAY THE EXACTION AND, UPON THREAT
OF ENFORCEMENT, FILED A BILL IN A STATE COURT FOR INJUNCTION ALLEGING
THE FEE WAS EXCESSIVE, A BURDEN ON INTERSTATE COMMERCE, AND A VIOLATION
OF THE CONSTITUTIONAL PROVISION THAT "NO STATE SHALL, WITHOUT THE
CONSENT OF THE CONGRESS, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR
EXPORTS EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR EXECUTING ITS
INSPECTION LAWS."  THE MARYLAND COURT OF APPEALS (117 MD. 335; 82 ATL.
380) AFFIRMED A DECREE DISMISSING THE BILL AND THIS COURT REVERSED ITS
DECISION.  THE PLAINTIFF ASSERTED THAT AS THE ACT LAID THE FEE FOR THE
EXPENSE OF INSPECTION, "AND OTHER EXPENSES," IT WAS OBVIOUS THAT THE
STATE HAD PROVIDED FOR THE COLLECTION OF MORE THAN WAS NECESSARY FOR
INSPECTION.  TO THIS THE STATE ANSWERED THAT THE SECTION LEVYING THE
FEE WAS BUT A PART OF AN ELABORATE SYSTEM OF INSPECTION IMPOSED UPON
THE STATE FISHERY FORCE.  IT APPEARED FROM THE EVIDENCE, AS IT DOES
HERE, THAT THE FISHERY FORCE HAD DUTIES OTHER THAN THOSE OF INSPECTION
WHICH WERE TO BE PAID FOR OUT OF THE FUND PRODUCED BY THE FEES.  THIS
COURT SAID (P. 503):    "BUT WHILE THE TWO DUTIES MAY SOMETIMES
OVERLAP, THERE IS A DIFFERENCE BETWEEN POLICING AND INSPECTION, AND IF
THE STATE IMPOSES UPON ONE SET OF OFFICERS THE PERFORMANCE OF THE TWO
DUTIES AND PAYS THE WHOLE OR A PART OF THE JOINT EXPENSES OUT OF
INSPECTION FEES, IT MUST BE MADE TO APPEAR THAT SUCH TAX DOES NOT
MATERIALLY EXCEED THE COST OF INSPECTION - THE BURDEN IN SUCH CASES
BEING ON THOSE SEEKING TO COLLECT THE COMBINED CHARGE."  AND SAID
FURTHER (P. 506):    "BUT THE COMMINGLING OF THESE VARIOUS DUTIES, PAID
FOR OUT OF A FUND RAISED FOR INSPECTION, DOES NOT NECESSARILY SHOW THAT
THE FEE IS EXCESSIVE.  FOR THE PRESUMPTION OF INVALIDITY ARISING FROM
SUCH INTERMINGLING MIGHT BE MET BY CARRYING THE BURDEN OF SHOWING THAT,
WHILE THE STATUTE REQUIRED PAYMENT OUT OF SUCH JOINT FUND, THE
COLLECTIONS WERE NOT SUFFICIENT, BUT ONLY HELPED, TO PAY THE DEFINITELY
ASCERTAINED EXPENSES OF INSPECTION.  THE QUESTION OF REASONABLENESS,
THEREFORE, MAY BE CONSIDERED IN THE LIGHT OF THE PRACTICAL OPERATION OF
THE LAW WITH A VIEW OF DETERMINING, WITH REASONABLE CERTAINTY, THE
PERMANENT RELATION BETWEEN THE AMOUNT COLLECTED AND THE COST OF
INSPECTING." 

THE COURT EXAMINED THE EVIDENCE AS TO THE OPERATION OF A PRIOR LAW
WHICH LEVIED THE SAME CHARGE PER BUSHEL AND WHICH THE CHALLENGED ACT
SUPERSEDED, CONSISTING OF THE ANNUAL REPORTS OF THE COMPTROLLER, AND
FOUND THEREFROM THAT ONE-THIRD OF THE AMOUNT COLLECTED WAS SUFFICIENT
TO PAY THE COST OF INSPECTION AND THE OTHER TWO-THIRDS HAD BEEN
APPROPRIATED TO "OTHER EXPENSES OF THE FISHERY FORCE."  IN THE LIGHT OF
THE OPERATION OF THE PREVIOUS ACT, AND THE FAILURE OF THE STATE TO SHOW
THAT THE AMOUNT COLLECTED UNDER THE NEW LAW WOULD NOT BE MORE THAN WAS
NECESSARY FOR THE EXPENSES OF INSPECTION PROPER, THE CHALLENGED STATUTE
WAS HELD VOID. 

THERE ARE FACTUAL DISTINCTIONS BETWEEN THE CITED CASE AND THE INSTANT
ONE, BUT THEY DO NOT AFFECT THE BINDING AUTHORITY OF THE FORMER.  THE
LAW UNDER CONSIDERATION IN THE FOOTE CASE WAS PURELY AN INSPECTION
MEASURE.  THAT HERE UNDER REVIEW IS CHARACTERIZED BY THE STATE COURT AS
ONE FOR REGULATION AND INSPECTION.  THE SPECIFIC MANDATE OF THE FEDERAL
CONSTITUTION LIMITING STATE INSPECTION FEES TO AN AMOUNT ABSOLUTELY
NECESSARY FOR EXECUTING A STATE'S INSPECTION LAWS WAS TREATED IN THE
FOOTE CASE AS RAISING THE SAME ISSUE AS WAS PRESENTED IN EARLIER
DECISIONS WITH RESPECT TO THE BEARING OF THE COMMERCE CLAUSE UPON THE
IMPOSITION OF REGULATORY AND INSPECTION FEES IMPOSED UPON LOCAL
PROPERTY OF INTERSTATE ENTERPRISES.  AND THE CASES DECIDED UNDER THE
COMMERCE CLAUSE DEALING WITH THE REASONABLENESS OF REGULATION AND
INSPECTION FEES HAVE BEEN TREATED BY THIS COURT AS APPOSITE TO THE
GUARANTEES OF THE FOURTEENTH AMENDMENT.  IN THE FOOTE CASE REFERENCE TO
THE ACCOUNTS AND RECORDS KEPT BY STATE AUTHORITY DISCLOSED THE EXTENT
OF THE EXCESS OF RECEIPTS OVER EXPENDITURES, WHEREAS HERE IT IS
DEMONSTRATED THAT WHILE EXPENSES OTHER THAN THOSE OF INSPECTION AND
REGULATION OF RAILROADS ARE PAID OUT OF THE FEES, THE AMOUNT OF THE
EXCESS OVER WHAT IS NECESSARY FOR REGULATION AND INSPECTION CANNOT BE
ASCERTAINED FROM THE DEPARTMENT'S ACCOUNTS.  THE FOOTE CASE IS
AUTHORITY THAT IN SUCH CIRCUMSTANCES THE BURDEN IS ON THOSE SEEKING TO
COLLECT THE CHARGE. 

THE STATE SUPREME COURT, AFTER HOLDING THAT THE PLAINTIFF FAILED TO
CARRY ITS BURDEN, AND THAT NO DUTY OF SHOWING THE AMOUNT NECESSARY FOR
INSPECTION AND REGULATION OF RAILROADS LAY UPON THE DEFENDANT,
PROCEEDED TO DISCUSS THE EVIDENCE AND REACHED THE CONCLUSION THAT THE
PROOF PREPONDERATED IN FAVOR OF THE DEFENDANT.  THIS CONCLUSION WAS
BASED UPON THE TESTIMONY OF THE DEPARTMENT AUDITOR THAT HE HAD FOUND
FROM MEMORANDA FURNISHED HIM, AND DATA COLLECTED BY HIM, WHAT HAD BEEN
EXPENDED IN CONNECTION WITH RAILROADS EXCEEDED WHAT THEY HAD PAID.  AS
ALREADY NOTED THE APPELLANT INSISTS THAT THIS EVIDENCE WAS INADMISSIBLE
AND LACKED VALUE BECAUSE HEARSAY. 

THE STATE COURT SAID: 

"WHILE THE ACCOUNT KEPT BY THE AUDITOR WAS NOT OFFICIAL, IN THE SENSE
THAT OF ITSELF IT WAS ADMISSIBLE IN EVIDENCE, YET WHAT THE AUDITOR DID
IN THAT RESPECT QUALIFIED HIM TO TESTIFY AS TO THE ULTIMATE FACT. 
WITHOUT FURTHER DETAILING THE EVIDENCE, WE WILL SAY THAT IN OUR
OPINION, AND IN SO FAR AS THERE WAS ANY EVIDENCE ON THE SUBJECT, IT
PREPONDERATED AGAINST THE FINDINGS MADE BY THE COURT AS TO THE COST OF
SUPERVISING AND REGULATING RAILROADS." 

PASSING THE APPELLANT'S CONTENTION THAT A FEDERAL RIGHT MAY NOT BE
DENIED UNDER THE GUISE OF THE APPLICATION OF A STATE RULE OF EVIDENCE,
FN14  WE COME TO THE QUESTION WHETHER, WHEN THE ASSERTED RIGHT HAS BEEN
DENIED, THIS COURT IS CONCLUDED BY A FINDING OF FACT OR A MIXED FINDING
OF LAW AND FACT MADE BY THE STATE COURT.  WE HAVE REPEATEDLY HELD THAT
IN SUCH CASE WE MUST EXAMINE THE EVIDENCE TO ASCERTAIN WHETHER IT
SUPPORTS THE DECISION AGAINST THE CLAIM OF FEDERAL RIGHT.  A RECENT
EXPOSITION OF THE DOCTRINE IS FOUND IN NORRIS V. ALABAMA, 294 U.S. 587,
A CASE COMING HERE FROM A STATE COURT, IN WHICH THE APPELLANT CLAIMED
THAT HE HAD BEEN DENIED DUE PROCESS BY THE SYSTEMATIC AND INTENTIONAL
EXCLUSION OF NEGROES FROM THE JURY LISTS.  THE STATE COURT HELD THAT
THE EVIDENCE DID NOT ESTABLISH SUCH EXCLUSION.  THIS COURT REVIEWED THE
EVIDENCE, REACHED A CONCLUSION CONTRARY TO THAT OF THE STATE COURT, AND
REVERSED THE JUDGMENT.  AT PP. 589-590 IT WAS SAID: 

"THE QUESTION IS OF THE APPLICATION OF THIS ESTABLISHED PRINCIPLE TO
THE FACTS DISCLOSED BY THE RECORD.  THAT THE QUESTION IS ONE OF FACT
DOES NOT RELIEVE US OF THE DUTY TO DETERMINE WHETHER IN TRUTH A FEDERAL
RIGHT HAS BEEN DENIED.  WHEN A FEDERAL RIGHT HAS BEEN SPECIALLY SET UP
AND CLAIMED IN A STATE COURT, IT IS OUR PROVINCE TO INQUIRE NOT MERELY
WHETHER IT WAS DENIED IN EXPRESS TERMS BUT ALSO WHETHER IT WAS DENIED
IN SUBSTANCE AND EFFECT.  IF THIS REQUIRES AN EXAMINATION OF EVIDENCE,
THAT EXAMINATION MUST BE MADE.  OTHERWISE, REVIEW BY THIS COURT WOULD
FAIL OF ITS PURPOSE IN SAFEGUARDING CONSTITUTIONAL RIGHTS.  THUS,
WHENEVER A CONCLUSION OF LAW OF A STATE COURT AS TO A FEDERAL RIGHT AND
FINDINGS OF FACT ARE SO INTERMINGLED THAT THE LATTER CONTROL THE
FORMER, IT IS ENCUMBENT UPON US TO ANALYZE THE FACTS IN ORDER THAT THE
APPROPRIATE ENFORCEMENT OF THE FEDERAL RIGHT MAY BE ASSURED." 

IN BEIDLER V. SOUTH CAROLINA TAX COMM'N, 282 U.S. 1, THE VALIDITY OF
A STATE INHERITANCE TAX ACT WAS CHALLENGED IN A STATE COURT, THE CLAIM
BEING THAT THE ACT OPERATED TO TAKE PROPERTY WITHOUT DUE PROCESS IF
HELD TO APPLY TO PROPERTY HAVING NO SITUS IN THE STATE.  THE STATE
COURT HELD THAT INTANGIBLE PROPERTY, THE TRANSFER OF WHICH WAS SOUGHT
TO BE TAXED, HAD ACQUIRED A BUSINESS SITUS IN SOUTH CAROLINA.  THIS
COURT REEXAMINED THE QUESTION, IN THE LIGHT OF THE EVIDENCE, AND
OVERRULED THE STATE COURT'S DECISION, SAYING (P. 8): 

"BUT A CONCLUSION THAT DEBTS HAVE THUS ACQUIRED A BUSINESS SITUS MUST
HAVE EVIDENCE TO SUPPORT IT, AND IT IS OUR PROVINCE TO INQUIRE WHETHER
THERE IS SUCH EVIDENCE WHEN THE INQUIRY IS ESSENTIAL TO THE ENFORCEMENT
OF A RIGHT SUITABLY ASSERTED UNDER THE FEDERAL CONSTITUTION." 

IN JOHNSON OIL CO. V. OKLAHOMA, 290 U.S. 158, THERE WAS DRAWN IN
QUESTION THE VALIDITY OF AD VALOREM TAXES LAID UNDER A STATE STATUTE
UPON THE ENTIRE FLEET OF THE APPELLANT'S TANK CARS.  IT WAS CHARGED
THAT THE CARS DID NOT HAVE A SITUS WITHIN THE STATE AND THERE WAS,
THEREFORE, NO JURISDICTION TO TAX THEM.  THE SUPREME COURT OF THE STATE
HELD THAT ALL THE CARS HAD THEIR TAXABLE SITUS WITHIN THE STATE.  THIS
COURT EXAMINED THE EVIDENCE, REACHED A CONTRARY CONCLUSION, AND
REVERSED THE JUDGMENT, SAYING (PP. 159-160): 

"AS THE ASSERTED FEDERAL RIGHT TURNS UPON THE DETERMINATION OF THE
QUESTION OF SITUS, IT IS OUR PROVINCE TO ANALYZE THE FACTS IN ORDER TO
APPLY THE LAW, AND THUS TO ASCERTAIN WHETHER THE CONCLUSION OF THE
STATE COURT HAS ADEQUATE SUPPORT IN THE EVIDENCE." 

CITATION OF AUTHORITY FOR THE SAME PRINCIPLE MIGHT BE MULTIPLIED
INDEFINITELY.  FN15 

WHILE HOLDING THE TESTIMONY OF THE DEPARTMENT AUDITOR COMPETENT, THE
STATE COURT OMITS TO REFER TO THE FACT THAT THE FIGURES HE PRESENTED
WERE NOT ALLOCATED SO AS TO SHOW THE AMOUNTS SPENT FOR INSPECTION AND
REGULATION AND THOSE EXPENDED FOR OTHER SO-CALLED RAILROAD CHARGES
WHICH COULD NOT BE IMPOSED UPON THE RAILROADS.  AS HAS BEEN POINTED
OUT, THE EVIDENCE IS UNCONTRADICTED AND CONCLUSIVE THAT THE SUMS HE
MENTIONED AS HAVING BEEN EXPENDED FOR RAILROAD ACCOUNT DID INCLUDE
SUBSTANTIAL, AND APPARENTLY LARGE, AMOUNTS FOR ACTIVITIES IN THE
INTEREST OF INTERSTATE SHIPPERS AND FOR THE TRIAL OF REPARATION CASES. 
IT IS IMPOSSIBLE TO SUSTAIN THE STATE COURT'S CONCLUSION THAT SUCH
TESTIMONY HAD ANY PROBATIVE VALUE UPON THE SOLE ISSUE IN THE CAUSE,
WHICH WAS WHETHER THE STATUTE SUBJECTS THE RAILROADS TO AN UNREASONABLY
EXCESSIVE CHARGE FOR INSPECTION AND REGULATION.  AS WAS SAID IN THE
FOOTE CASE, THE STATE IS AT LIBERTY TO INTERMINGLE DUTIES INVOLVING
COSTS PROPERLY CHARGEABLE TO THE RAILROADS, WITH OTHERS INVOLVING COSTS
NOT SO CHARGEABLE, BUT IF IT DOES SO, AND THE EXACTION IS CHALLENGED,
IT MUST ASSUME THE BURDEN OF SHOWING THAT THE SUMS EXACTED FROM THE
APPELLANT DO NOT EXCEED WHAT IS REASONABLY NEEDED FOR THE SERVICE
RENDERED.  THE STATE FAILED TO CARRY THIS BURDEN. 

IT RESULTS THAT THE JUDGMENT MUST BE REVERSED AND THE CAUSE REMANDED
FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  REVERSED. 

FN1  184 WASH. 648; 52 P.(2D) 1274. 

FN2  C. 107 WASHINGTON SESSION LAWS OF 1929.  (REMINGTON'S REVISED
STATUTES SECS. 10417, 10418.)  THIS ACT AMENDED SEC. 1 OF C. 113 OF THE
LAWS OF 1921, AS AMENDED BY SEC. 1, C. 107 OF THE LAWS OF 1923.  IT
LEFT SEC. 2 OF C. 113, LAWS OF 1921, IN EFFECT. 

FN3  PACIFIC T. & T. CO. V. SEATTLE, 172 WASH. 649; 21 P.(2D) 721;
AFFIRMED ON OTHER QUESTIONS, 291 U.S. 300.  SEE ALSO THE OPINION BELOW,
184 WASH., PP. 650, 651; 52 P.(2D) P. 1275. 

FN4  THE COMPLAINT AS FILED SOUGHT RECOVERY ALSO OF SUMS PAID
PURSUANT TO OTHER STATUTORY PROVISIONS.  THE APPELLANT, HOWEVER,
ABANDONED THESE ITEMS OF CLAIM. 

FN5  CHARLOTTE, C. & A.R. CO. V. GIBBES, 142 U.S. 386; NEW YORK V.
SQUIRE, 145 U.S. 175, 191. 

FN6  ATLANTIC & PACIFIC TEL. CO. V. PHILADELPHIA, 190 U.S. 160;
MACKAY TELEGRAPH CO. V. LITTLE ROCK, 250 U.S. 94, 99. 

FN7 WESTERN UNION V. NEW HOPE, 187 U.S. 419, 425; PURE OIL CO. V.
MINNESOTA, 248 U.S. 158, 162. 

FN8  MCLEAN V. DENVER & R.G.R. CO., 203 U.S. 38, 55.  COMPARE RED "C"
OIL CO. V. NORTH CAROLINA, 222 U.S. 380, 393.  WESTERN UNION V. NEW
HOPE, SUPRA. 

FN9  BRIMMER V. REBMAN, 138 U.S. 78, 83; POSTAL TELEGRAPH-CABLE CO.
V. TAYLOR, 192 U.S. 64; PURE OIL CO. V. MINNESOTA, SUPRA, P. 162. 

FN10  ATLANTIC & PACIFIC TEL. CO. V. PHILADELPHIA, SUPRA, P. 164;
POSTAL TELEGRAPH-CABLE CO. V. TAYLOR, SUPRA, P. 69.  FOOTE & CO. V.
STANLEY, 232 U.S. 494, 503, 504. 

FN11  FOOTE & CO. V. STANLEY, SUPRA, P. 505; LUGO V. SUAZO, 59 F.(2D)
386. 

FN12  WESTERN UNION V. NEW HOPE, SUPRA, P. 425; FOOTE & CO. V.
STANLEY, SUPRA, P. 507. 

FN13  POSTAL TELEGRAPH-CABLE CO. V. NEW HOPE, 192 U.S. 55; FOOTE &
CO. V. STANLEY, SUPRA, P. 508. 

FN14  COMPARE MACKAY V. DILLON, 4 HOW.  421, 447; DOWER V. RICHARDS,
151 U.S. 658, 667; CLEVELAND, C., C. & ST. L. RY. V. BACKUS, 154 U.S.
439, 443; CEDAR RAPIDS GAS CO. V. CEDAR RAPIDS, 223 U.S. 655, 668;
BAILEY V. ALABAMA, 219 U.S. 219, 239; CENTRAL VERMONT RY. V. WHITE, 238
U.S. 507, 512; HILL V. SMITH, 260 U.S. 592, 594. 

FN15  KANSAS CITY SOUTHERN RY. V. ALBERS COMMISSION CO., 223 U.S.
573, 591; CRESWILL V. KNIGHTS OF PYTHIAS, 225 U.S. 246, 261; NORTHERN
PACIFIC RY. V. NORTH DAKOTA, 236 U.S. 585, 593; INTERSTATE AMUSEMENT
CO. V. ALBERT, 239 U.S. 560, 566; TRUAX V. CORRIGAN, 257 U.S. 312, 324;
WARD & GOW V. KRINSKY, 259 U.S. 503, 511; AETNA LIFE INSURANCE CO. V.
DUNKEN, 266 U.S. 389, 394; FISKE V. KANSAS, 274 U.S. 380, 385; ANCIENT
ORDER V. MICHAUX, 279 U.S. 737, 745; CONSOLIDATED TEXTILE CORP. V.
GREGORY, 289 U.S. 85, 86. 

MR. JUSTICE CARDOZO, DISSENTING. 

TO SHOW THAT THE REVOLVING FUND WAS USED AS A COMMON POT FOR THE
REGULATION OF PUBLIC UTILITIES GENERALLY, IRRESPECTIVE OF THEIR SPECIAL
FUNCTION, DOES NOT MAKE OUT A CASE OF WRONG TO RAILROADS CONSIDERED AS
A SEPARATE CLASS OR TO APPELLANT IN PARTICULAR.  FOR THE PURPOSES OF
THIS CASE THERE IS NO NEED TO INQUIRE WHETHER ANYTHING IN THE
FOURTEENTH AMENDMENT FORBIDS THE RECOGNITION OF A SINGLE AND ALL
INCLUSIVE CLASS OF PUBLIC SERVICE CORPORATIONS WITHOUT FURTHER
SUBDIVISION.  IF THE PROHIBITION BE ASSUMED, STILL THE BURDEN IS ON THE
RAILROADS TO SATISFY THE COURT THAT WHAT WAS CONTRIBUTED BY THEM WAS
MORE THAN WHAT WAS EXPENDED FOR THEIR ACCOUNT, SINCE OTHERWISE THE
COMMON POT MAY HAVE BEEN A HELP AND NOT A HURT.  THAT BURDEN WAS NOT
DISCHARGED.  FAR FROM BEING DISCHARGED, THERE WAS A DISCLAIMER OF ANY
ATTEMPT OR PURPOSE TO DISCHARGE IT.  AND SO THE CASE MUST FAIL. 
NORFOLK & WESTERN RY. CO. V. NORTH CAROLINA, 297 U.S. 682, 688, 689,
690. 

THE DECISION IN FOOTE V. STANLEY, 232 U.S. 494, MUCH RELIED ON BY
APPELLANT, IS INAPPLICABLE HERE.  THAT WAS A CASE UNDER ARTICLE I, SEC.
10, OF THE CONSTITUTION, WHICH PROVIDES THAT "NO STATE SHALL, WITHOUT
THE CONSENT OF THE CONGRESS, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR
EXPORTS, EXCEPT WHAT MAY BE ABSOLUTELY NECESSARY FOR EXECUTING ITS
INSPECTION LAWS."  MARYLAND PASSED AN ACT FOR THE PAYMENT OF CHARGES,
CHARACTERIZED AS INSPECTION FEES, UPON IMPORTS OF OYSTERS FROM
NEIGHBORING STATES.  THE "INSPECTORS" DID MORE THAN INSPECT THE
OYSTERS; THEY POLICED THE WATERS OF CHESAPEAKE BAY, BEING THUS
POLICEMEN AS WELL AS INSPECTORS.  ON ITS FACE THE ACT PROVIDED THAT A
FEE OF ONE CENT PER BUSHEL SHOULD BE "LEVIED TO HELP PAY THE SALARY OF
THE INSPECTORS AND THE OTHER EXPENSES OF THE STATE FISHERY FORCE."  232
U.S. AT 505.  IN THESE CIRCUMSTANCES THE RULING WAS THAT IN A SUIT FOR
AN INJUNCTION BROUGHT BY THE IMPORTERS THE STATE HAD THE BURDEN OF
SHOWING THAT THE FEE WAS NOT AN UNREASONABLE ONE FOR THE SERVICE OF
INSPECTION AS DISTINGUISHED FROM THE OTHER SERVICES COVERED THEREBY. 
IMPOSTS UPON INTERSTATE COMMERCE BEING GENERALLY PROHIBITED, AND BEING
LAWFUL ONLY WHEN "ABSOLUTELY NECESSARY" FOR THE PURPOSE OF INSPECTION,
A CHARGE COVERING THE SERVICE OF INSPECTION AND ALSO SOMETHING ELSE
MUST COLLAPSE IN ITS ENTIRETY UNLESS THE STATE IS IN A POSITION TO
BREAK IT UP INTO ITS ELEMENTS.  A POWER HAS BEEN GRANTED TO BE USED IN
EXCEPTIONAL CONDITIONS.  THE STATE MUST BRING ITSELF WITHIN THE
EXCEPTION IF IT SEEKS TO ACT WITHIN THE GRANT. 

A VERY DIFFERENT SITUATION CONFRONTS US IN THE CASE AT HAND.  HERE
THE STATUTE OF THE STATE DOES NOT TRESPASS UPON A FIELD OF LEGISLATION
WHERE ENTRY IS FORBIDDEN WITHOUT THE LICENSE OF THE NATION.  WHAT HAS
BEEN DONE IS WELL WITHIN THE FIELD OF GENERAL LEGISLATIVE POWER, WITH
EVERY PRESUMPTION OF VALIDITY BACK OF IT.  IN SUCH CIRCUMSTANCES THE
BURDEN OF MAKING GOOD A CLAIM OF INVALIDITY AND THUS ESTABLISHING AN
EXCEPTION IS ON THE ASSAILANTS OF THE RULE, AND NOT ON ITS PROPONENTS. 
THE CONCLUSION BECOMES CLEARER WHEN THE STATUTE IS ANALYZED MORE
CLOSELY.  ALL THAT IT DOES IS TO EXACT OF PUBLIC UTILITIES GENERALLY
(WITH PARTICULAR EXCEPTIONS) A FEE OF 1/10TH OF ONE PER CENT OF THEIR
GROSS REVENUES, CONFINED, HOWEVER, TO OPERATIONS IN INTRASTATE
COMMERCE, THE FEE WHEN COLLECTED TO BE PAID INTO A REVOLVING FUND. 
LAWS OF WASHINGTON, 1929, C. 107; LAWS OF 1923, C. 107; LAWS OF 1921,
C. 113.  ANOTHER STATUTE (LAWS OF WASHINGTON, 1929, C. 108) LAYS A
HEAVIER TAX (1%), TO BE PAID INTO THE SAME FUND, UPON THE RECEIPTS OF
AUTO-TRANSPORTATION COMPANIES.  STEAMSHIP COMPANIES OF A STATED CLASS
ARE SUBJECT TO A SPECIAL RULE, THE FEE IN THEIR CASE BEING 1/5TH OF ONE
PER CENT.  LAWS OF WASHINGTON, 1927, C. 248.  PLAINLY THERE IS NO
PRESUMPTION THAT THESE VARYING CONTRIBUTIONS ARE OUT OF PROPORTION TO
THE EXPENSES INCURRED IN SUPERVISING AND REGULATING THE SEVERAL CLASSES
OF CONTRIBUTORS.  ILLEGALITY, IF THERE IS ANY, IS TO BE FOUND IN THE
ADMINISTRATION OF THE STATUTE, AND NOT IN ANYTHING INHERENT IN ITS
ESSENTIAL SCHEME AND FRAMEWORK.  THAT BEING SO, THE TAXPAYER MAY NOT
REST UPON A SHOWING OF POSSIBLE OVERPAYMENT.  THERE MUST BE A SHOWING
OF AN OVERPAYMENT NOT MERELY POSSIBLE BUT ACTUAL, AND ONE SUBSTANTIAL
IN AMOUNT.  NORFOLK & WESTERN RY. CO. V. NORTH CAROLINA, SUPRA; FOOTE
V. STANLEY, SUPRA.  TO HOLD OTHERWISE WOULD BE TO GO COUNTER TO THE
SETTLED RULE THAT "ONE WHO WOULD STRIKE DOWN A STATE STATUTE AS
OBNOXIOUS TO THE FEDERAL CONSTITUTION MUST SHOW THAT THE ALLEGED
UNCONSTITUTIONAL FEATURE INJURES HIM."  PREMIER-PABST SALES CO. V.
GROSSCUP, 298 U.S. 226, 227.  ANALOGIES DRAWN FROM THE LAW OF TRUSTS
ARE INAPPOSITE AND MISLEADING.  THE STATE DOES NOT COLLECT THE TAXES OR
PLACE THEM IN THE FUND AS TRUSTEE FOR THE CONTRIBUTOR OR FOR ANY ONE
ELSE.  IT RECEIVES THE MONEYS AND EXPENDS THEM AS AN OWNER, CHARGED
WITH NO OTHER DUTY TO A PARTICULAR GROUP OF TAXPAYERS THAN TO MEMBERS
OF THE PUBLIC GENERALLY. 

THE BURDEN RESTING ON THE RAILROADS TO SHOW THAT THE USE OF THE
COMMON POT HAS RESULTED TO THEIR DAMAGE, THE RECORD MUST BE SCRUTINIZED
TO SEE WHETHER THE BURDEN HAS BEEN BORNE.  IN THAT SCRUTINY THERE IS NO
DENIAL OF A DUTY TO INQUIRE WHETHER THE DECISION OF THE STATE COURT,
IRRESPECTIVE OF ITS SURFACE PROTESTATIONS, AMOUNTS IN SUBSTANCE AND
REALITY TO THE DENIAL OF A FEDERAL RIGHT.  NORRIS V. ALABAMA, 294 U.S.
587, 589; BEIDLER V. SOUTH CAROLINA TAX COMM'N, 282 U.S. 1, 8.  THERE
IS A RECOGNITION OF THE DUTY, AND AN ENDEAVOR TO FULFILL IT. 

1.  THE TRIAL COURT SUGGESTED TO COUNSEL FOR APPELLANT THAT IT WOULD
BE INTERESTING TO KNOW WHETHER THE AMOUNT THAT HAD BEEN COLLECTED
THROUGH THE TAX UPON THE RAILROADS WAS IN EXCESS OF THE AMOUNT EXPENDED
FOR THEIR BENEFIT.  COUNSEL RESPONDED THAT HE WOULD NOT EMBARK ON THAT
INQUIRY.  HIS POSITION WAS STATED TO BE THAT THE ACT WAS INVALID ON ITS
FACE, IN WHICH EVENT IT WOULD BE VAIN TO PURSUE THE SUBJECT FURTHER. 
THIS COURT BY ITS OPINION HAS REJECTED THAT CONTENTION.  THE ACT IS NOT
INVALID ON ITS FACE, WHETHER VALID OR INVALID OTHERWISE. 

2.  EXPLAINING OR AT LEAST SUPPLEMENTING THE REFUSAL TO COMPARE
DISBURSEMENTS AND RECEIPTS, COUNSEL STATED ON THE TRIAL THAT THERE WERE
NO RECORDS AVAILABLE.  BUT THE CONTRARY WAS CLEARLY PROVED.  THE
AUDITOR OF THE DEPARTMENT OF PUBLIC WORKS CAUSED THE EMPLOYEES OF THE
DEPARTMENT TO SUBMIT VOUCHERS OR SLIPS DESCRIPTIVE OF THEIR SERVICES
WITH AN APPROPRIATE SEGREGATION AND APPORTIONMENT AMONG THE SEVERAL
CLASSES OF UTILITIES.  HE TESTIFIED ON THE BASIS OF THESE REPORTS,
WHICH WERE ON FILE IN HIS OFFICE, THAT DISBURSEMENTS FOR ACCOUNT OF THE
RAILROADS WERE IN EXCESS BY $37,833.14 OF THE RAILROADS'
CONTRIBUTIONS.  COUNSEL FOR APPELLANT EXPRESSES HIS BELIEF THAT
INSPECTION AND DISCOVERY OF THE CONTENTS OF THE VOUCHERS WOULD HAVE
YIELDED INADEQUATE INFORMATION.  HIS BUSINESS WAS TO LOOK AND SEE. 

3.  THE OBJECTION WILL NOT HOLD THAT THE DOCUMENTS MIGHT BE IGNORED
FOR THE REASON THAT, IF PRODUCED, THEY WOULD BE INCOMPETENT AS
EVIDENCE.  APART FROM THE POSSIBILITY OF EXAMINING THE MEN WHO MADE
THEM, IT IS THE LAW OF THE STATE OF WASHINGTON, DECLARED IN THIS VERY
CASE, THAT THE SLIPS AND VOUCHERS SO FILED IN THE COURSE OF THE
BUSINESS OF THE BUREAU WERE SUFFICIENT TO SUPPORT THE TESTIMONY OF THE
AUDITOR AS TO THE CONCLUSIONS TO BE DRAWN FROM THEM.  REFERRING TO THAT
SUBJECT, THE COURT SAID:  "WHILE THE ACCOUNT KEPT BY THE AUDITOR WAS
NOT OFFICIAL, IN THE SENSE THAT OF ITSELF IT WAS ADMISSIBLE IN
EVIDENCE, YET WHAT THE AUDITOR DID IN THAT RESPECT QUALIFIED HIM TO
TESTIFY AS TO THE ULTIMATE FACT.  WITHOUT FURTHER DETAILING THE
EVIDENCE, WE WILL SAY THAT IN OUR OPINION, AND IN SO FAR AS THERE WAS
ANY EVIDENCE ON THE SUBJECT, IT PREPONDERATED AGAINST THE FINDINGS MADE
BY THE (TRIAL) COURT AS TO THE COST OF SUPERVISING AND REGULATING
RAILROADS." 

WHETHER THE EVIDENCE THUS ACCEPTED AND RELIED UPON WOULD BE REJECTED
BY OTHER COURTS EITHER AS HEARSAY OR ON OTHER GROUNDS IS QUITE BESIDE
THE POINT.  THE FOURTEENTH AMENDMENT DOES NOT CONFINE THE STATES TO THE
COMMON LAW RULES OF EVIDENCE, HOWEVER WELL ESTABLISHED.  WEST V.
LOUISIANA, 194 U.S. 258, 262, 263; BROWN V. NEW JERSEY, 175 U.S. 172,
174, 175; TWINING V. NEW JERSEY, 211 U.S. 78, 101; LURIA V. UNITED
STATES, 231 U.S. 9, 25.  "THE STATE IS NOT TIED DOWN BY ANY PROVISION
OF THE FEDERAL CONSTITUTION TO THE PRACTICE AND PROCEDURE WHICH EXISTED
AT THE COMMON LAW."  BROWN V. NEW JERSEY, SUPRA.  THE ACCEPTANCE OF THE
TESTIMONY OF THE AUDITOR DOES NOT TOUCH THE PRIVILEGE OF CONFRONTATION
IN A PROSECUTION FOR A CRIME.  SNYDER V. MASSACHUSETTS, 291 U.S. 97,
106.  IT DOES NOT SUBSTITUTE HEARSAY FOR DIRECT TESTIMONY GENERALLY OR
AS TO EVERY POSSIBLE ISSUE ARISING IN A CASE.  AT MOST IT IS AN
ENLARGEMENT OF THE COMMON LAW RULE AS TO ENTRIES IN BOOKS OF ACCOUNT OR
IN PUBLIC OR OFFICIAL DOCUMENTS.  CF. WIGMORE, EVIDENCE, VOL. 3, SEC.
1517 ET SEQ; SEC. 1630 ET SEQ. 

HEARSAY IS COMPETENT EVIDENCE BY THE LAW OF MANY ENLIGHTENED
COUNTRIES.  STUMBERG, GUIDE TO THE LAW AND LEGAL LITERATURE OF FRANCE,
PP. 148, 149; ENCYCLOPEDIA OF THE SOCIAL SCIENCES, TITLE "EVIDENCE";
VOL. V., PP. 646, 647.  EVEN AT COMMON LAW IT IS COMPETENT AT CERTAIN
TIMES AND FOR CERTAIN PURPOSES, THOUGH NARROWLY RESTRICTED.  WIGMORE,
EVIDENCE, VOL. 3, SEC. 1420 ET SEQ.; THAYER, A PRELIMINARY TREATISE ON
EVIDENCE AT THE COMMON LAW, P. 518.  THE RANGE OF ITS COMPETENCE HAS
BEEN GREATLY ENLARGED BY STATUTES IN MANY OF THE STATES, AS, E.G., IN
THE ADMINISTRATION OF WORKMEN'S COMPENSATION LAWS, AND BY THE
RELAXATION OF ANCIENT RULES AS TO ENTRIES IN ACCOUNTS.  DODD,
ADMINISTRATION OF WORKMEN'S COMPENSATION, PP. 227-236; WIGMORE,
EVIDENCE, SUPPLEMENT, 1934, SECS. 1519, 1520; MORGAN AND OTHERS, THE
LAW OF EVIDENCE, P. 51; NEW YORK CIVIL PRACTICE ACT, SEC. 374 A; CF.
MASSACHUSETTS BONDING & INSURANCE CO. V. NORWICH PHARMACAL CO., 18
F.(2D) 934; CUB FORK COAL CO. V. FAIRMONT GLASS CO., 19 F.(2D) 273;
UNITED STATES V. COTTER, 60 F.(2D) 689.  THE QUESTION MAY BE LAID ASIDE
WHETHER A CHANGE IN THE LAW OF EVIDENCE MIGHT BE SO RADICAL AND UNJUST
AS TO WORK A DESTRUCTION OF FUNDAMENTAL RIGHTS AND THUS A DENIAL OF DUE
PROCESS.  BROWN V. NEW JERSEY, SUPRA, P. 175.  ASSUMING SUCH A
POSSIBILITY, THERE IS NOTHING IN THIS RULING TO MAKE IT A REALITY.  IF
THE LEGISLATURE OF WASHINGTON HAD PASSED A STATUTE TO THE EFFECT THAT
VOUCHERS IN A PUBLIC OFFICE, FILED BY THE EMPLOYEES AT THE BIDDING OF A
SUPERIOR, SHOULD BE PRIMA FACIE EVIDENCE OF THE TRUTH OF THEIR
CONTENTS, IT IS NOT OPEN TO DOUBT THAT SUCH A STATUTE WOULD BE VALID. 
IT WOULD NOT EVEN INVOLVE AN EXTREME DEPARTURE FROM COMMON LAW
ANALOGIES ROOTED IN THE PRESUMPTION OF OFFICIAL REGULARITY.  WHAT A
STATE MAY DO IN CHANGING THE RULES OF EVIDENCE THROUGH THE ACTION OF
ITS LEGISLATURE, IT MAY DO WITH EQUAL COMPETENCE THROUGH THE ACTION OF
ITS JUDGES, FOR ANYTHING TO THE CONTRARY IN THE CONSTITUTION OF THE
UNITED STATES. 

4.  APPELLANT DID NOT DISCHARGE ITS BURDEN BY PROVING IN A VAGUE WAY
THAT SOME OF THE DISBURSEMENTS CLASSIFIED BY THE AUDITOR AS A CHARGE
AGAINST THE RAILROADS WERE INCIDENTAL TO PROCEEDINGS CONDUCTED BEFORE
THE INTERSTATE COMMERCE COMMISSION OR ELSEWHERE FOR THE BENEFIT OF
PRIVATE SHIPPERS AND WERE NOT PROPERLY A PART OF THE EXPENSE OF LOCAL
REGULATION. 

THE ATTORNEY GENERAL TAKES THE GROUND THAT DISBURSEMENTS FROM THE
REVOLVING FUND, IF MADE FOR THAT PURPOSE, WERE WITHOUT AUTHORITY OF
LAW.  IF THAT BE SO, THEY CANNOT AVAIL TO INVALIDATE THE STATUTE,
THOUGH THEY MAY LAY THE BASIS FOR A REMEDY IN BEHALF OF THE STATE OR
OTHERS AGAINST THE OFFICERS OR AGENTS GUILTY OF UNINTENTIONAL
MISFEASANCE.  ASIDE, HOWEVER, FROM THAT OBJECTION, THERE WAS NO ATTEMPT
BY APPELLANT TO PROVE THE AMOUNT OF THESE OR LIKE WITHDRAWALS IN EVEN
THE ROUGHEST FASHION.  THERE WAS NO SUGGESTION, MUCH LESS EVIDENCE,
THAT THEY WOULD WIPE OUT THE EXCESS OF $37,833.14 STATED BY THE
AUDITOR.  AN INQUIRY DIRECTED TO THE POINT WOULD HAVE YIELDED IN ALL
LIKELIHOOD AN ESTIMATE AT LEAST APPROXIMATELY CORRECT.  IF SUCH INQUIRY
WAS INADEQUATE, THE SLIPS AND VOUCHERS WERE AVAILABLE FOR SCRUTINY AND
DISSECTION.  EXAMINATION OF THE AUDITOR IN CONNECTION WITH THE
DOCUMENTS WOULD HAVE SHOWN FORTH THE TRUTH. 

THE PRESUMPTION OF VALIDITY WHICH SUSTAINS AN ACT OF LEGISLATION IS
UNBROKEN BY THE EVIDENCE. 

THE CHIEF JUSTICE, MR. JUSTICE BRANDEIS AND MR. JUSTICE STONE JOIN IN
THIS OPINION. 
..END :










STOCKHOLDERS V. STERLING, 300 U.S. 175 


NO. 298.  ARGUED JANUARY 6, 7, 1937.  - DECIDED FEBRUARY 1, 1937.  - 169
MD. 678, 182 ATL. 558 - 169 MD. 696, 182 ATL. 566, AFFIRMED. 


THE MARYLAND CONSTITUTION, (1867) ART. III, SEC. 39, FORBIDS THE
CHARTERING OF BANKS EXCEPT UPON CONDITION THAT THE STOCKHOLDERS SHALL
BE LIABLE TO THE AMOUNT OF THEIR RESPECTIVE SHARES FOR THE DEBTS OF THE
BANK; AND AN EARLY STATUTE, COUCHED IN THE CONSTITUTIONAL LANGUAGE, WAS
CONSTRUED BY THE STATE COURTS AS CONFERRING UPON THE CREDITOR OF AN
INSOLVENT BANK A SUPPLEMENTARY RIGHT OF ACTION, EX CONTRACTU, AGAINST
ITS STOCKHOLDERS, BUT ONLY THOSE STOCKHOLDERS WHO WERE SUCH WHEN HIS
CREDIT WAS CONTRACTED,  - A LIABILITY WHICH FOLLOWED THE STOCKHOLDER
AFTER HE HAD CEASED TO BE SUCH, AND WHICH WAS SUBJECT TO ANY RIGHT OF
SET-OFF OR COUNTERCLAIM AVAILABLE TO THE STOCKHOLDER AGAINST THE BANK
AT THE TIME OF THE CREDITOR'S SUIT.  A LATER ENACTMENT ABOLISHED THIS
METHOD AND MADE THE STOCKHOLDERS' LIABILITY AN ASSET OF THE CORPORATION
FOR THE BENEFIT RATABLY OF ALL THE DEPOSITORS AND CREDITORS, AND
ENFORCIBLE ONLY AGAINST STOCKHOLDERS WHO WERE SUCH AT THE TIME OF THE
BANK'S LIQUIDATION, AND BY PROCEEDINGS BY A RECEIVER, ASSIGNEE OR
TRUSTEE OF THE CORPORATION ACTING UNDER THE ORDERS OF A COURT.  HELD
THAT THE LATER STATUTE DID NOT INFRINGE THE RIGHTS OF STOCKHOLDERS
UNDER THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION, BECAUSE: 

(A)  THE MARYLAND CONSTITUTIONAL PROVISION FIXED THE SUBSTANTIVE
STOCKHOLDER LIABILITY; THE STATUTES MERELY AFFORDED REMEDIES FOR ITS
ENFORCEMENT.  PP. 178, 181. 

(B)  THE EFFECT UPON CONTRACTS, WROUGHT BY CHANGE IN JUDICIAL
CONSTRUCTION OF ANTECEDENT STATE LAWS OR CONSTITUTIONAL PROVISIONS, IS
NOT WITHIN THE CONTRACT CLAUSE OF THE FEDERAL CONSTITUTION.  P. 182. 

(C)  STOCKHOLDERS WHO BECAME SUCH WHILE THE FIRST STATUTE WAS IN
FORCE WERE CHARGEABLE WITH NOTICE THAT A NEW REMEDY MIGHT BE ADOPTED IF
THE ONE FIRST CHOSEN WAS INADEQUATE; AND THIS INDEPENDENTLY OF A POWER
OF ALTERATION OR REPEAL RESERVED IN THE BANK'S CHARTER.  P. 181. 

(D)  WHEN A CORPORATE CHARTER IS SUBJECT TO THE CONDITION THAT IT MAY
BE ALTERED OR REPEALED BY THE LEGISLATURE, THERE IS NO UNCONSTITUTIONAL
CHANGE OF THE OBLIGATION OF A CONTRACT BY A SUBSEQUENT ENLARGEMENT OF
THE LIABILITY OF STOCKHOLDERS AS TO DEBTS AFTERWARDS CONTRACTED, THOUGH
THE SHARES SO AFFECTED WERE ACQUIRED BEFORE THE CHARTER WAS SO
AMENDED.  P. 183. 

(E)  THE MARYLAND CONSTITUTIONAL LIABILITY OF STOCKHOLDERS IN BANKS
IS NOT A MAXIMUM, BUT A MINIMUM, AND THE LEGISLATURE DOES NOT TRANSCEND
THE BOUNDS OF LEGISLATIVE POWER BY INCREASING IT, AS TO EXISTING
STOCKHOLDERS, UNDER ITS RESERVED POWER TO ALTER OR AMEND CHARTERS.  P.
183. 

WHETHER THE LEGISLATIVE CHANGES INVOLVED IN THIS CASE WOULD HAVE GONE
TOO FAR IF THEY HAD BEEN MADE APPLICABLE TO DEBTS EXISTING AT DATE OF
ENACTMENT IS NOT DECIDED.  SEE SMITH V. SHERMAN, 1 BLACK 587, 594.  THE
BURDEN OF PROVING THAT SUCH DEBTS EXISTED WAS ON THE APPELLANTS, AND IN
THIS THEY FAILED. 

STOCKHOLDERS OF THE PEOPLES BANKING CO. V. STERLING, RECEIVER.* 

*TOGETHER WITH NO. 299, STOCKHOLDERS OF THE HAGERSTOWN BANK & TRUST
CO. V. STERLING, RECEIVER.  APPEAL FROM THE COURT OF APPEALS OF
MARYLAND. 

APPEAL FROM THE COURT OF APPEALS OF MARYLAND. 

APPEALS, IN TWO CASES, FROM DECREES REVERSING A LOWER COURT AND
SUSTAINING SPECIAL ASSESSMENTS AGAINST PROTESTING STOCKHOLDERS, IN TWO
PROCEEDINGS TO LIQUIDATE BANKS. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

STOCKHOLDERS IN BANKING CORPORATIONS, CHARGED WITH PERSONAL
LIABILITY, CONTEND THAT A STATUTE OF MARYLAND DEFINING THE FORM OF
LIABILITY AND ITS MEASURE OFFENDS AGAINST THE CONSTITUTION OF THE
UNITED STATES BY IMPAIRING THE OBLIGATION OF CONTRACTS PREVIOUSLY
MADE. 

IN NO. 298, THE LIABILITY IN CONTROVERSY IS THAT OF STOCKHOLDERS IN
THE PEOPLES BANKING COMPANY OF SMITHSBURG, WHICH WAS INCORPORATED UNDER
THE LAWS OF MARYLAND, JANUARY 24, 1910, AND CLOSED ITS DOORS JUNE 29,
1931.  THE BANK COMMISSIONER OF THE STATE, AFTER BEING APPOINTED
RECEIVER, FILED A PETITION WITH A CIRCUIT COURT IN MARYLAND FOR AN
ORDER ASSESSING THE STOCKHOLDERS OF RECORD IN AN AMOUNT EQUAL TO 100%
OF THE PAR VALUE OF THEIR SHARES.  AN ORDER WAS MADE ACCORDINGLY IN
CONFORMITY WITH THE PROVISIONS OF ACTS, 1910, CHAPTER 219(CODE OF
MARYLAND, ARTICLE II, SEC. 72).  THEREAFTER THE APPELLANTS FILED
PETITIONS FOR THE REVOCATION OF THE ORDER, ALLEGING THE INVALIDITY OF
THE STATUTE IMPOSING LIABILITY, AND ALLEGING ALSO THAT THOSE OF THEM
WHO HAD PAID THE ASSESSMENTS BEFORE JOINING IN THE PETITIONS HAD DONE
SO BY MISTAKE.  AT THE DATE OF LIQUIDATION APPELLANTS WERE THE HOLDERS
OF OVER 2000 SHARES OF STOCK.  THIRTEEN APPELLANTS HAD BECOME THE
HOLDERS OF A RELATIVELY SMALL PORTION OF THESE SHARES (345) BEFORE THE
ENACTMENT OF THE APPLICABLE STATUTE.  NEARLY ALL THE APPELLANTS WERE
DEPOSITORS IN THE INSOLVENT BANK AND WERE THUS CREDITORS AS WELL AS
STOCKHOLDERS.  THE CIRCUIT COURT FOR WASHINGTON COUNTY, MARYLAND,
GRANTED THE PETITIONS, HOLDING THE STATUTE VOID AS AN IMPAIRMENT OF
EXISTING CONTRACTS.  THE COURT OF APPEALS REVERSED, AND ADJUDGED THE
STATUTE VALID.  GHINGHER V. BACHTELL, 169 MD. 678; 182 ATL. 558.  THE
CASE IS HERE UPON APPEAL.  JUDICIAL CODE, SEC. 237; 28 U.S.C. SEC.
344. 

IN NO. 299, THE LIABILITY IN CONTROVERSY IS THAT OF STOCKHOLDERS IN
THE HAGERSTOWN BANK AND TRUST COMPANY, WHICH WAS INCORPORATED IN 1902. 
THE TRUST COMPANY WAS CLOSED IN FEBRUARY, 1933, AND IN JANUARY, 1935,
AN ORDER WAS MADE FOR THE ASSESSMENT OF ALL THE STOCKHOLDERS TO THE
EXTENT OF 100% OF THE PAR VALUE OF THEIR SHARES, PROVIDED THAT NO GOOD
CAUSE WAS SHOWN TO THE CONTRARY WITHIN A STATED TIME.  THE APPELLANTS
IN THIS CASE, UNLIKE SOME OF THE APPELLANTS IN NO. 298, ACQUIRED THEIR
SHARES AFTER THE ENACTMENT OF THE 1910 STATUTE.  EVEN SO, THEY APPEARED
WITHIN THE TIME LIMIT IN OPPOSITION TO THE ASSESSMENT, ASSERTING THAT
THE STATUTE WAS INVALID AS TO THEM.  THE CIRCUIT COURT OF WASHINTGON
COUNTY SUSTAINED THEIR OPPOSITION, AND THE COURT OF APPEALS REVERSED. 
GHINGHER V. KAUSLER, 169 MD. 696; 182 ATL. 566.  IN THIS CASE ALSO THE
CONTROVERSY IS HERE UPON APPEAL. 

THE QUESTIONS IN THE TWO CASES WILL BE CONSIDERED SEPARATELY. 

FIRST:  THE CASE OF THE PEOPLES BANKING COMPANY OF SMITHSBURG. 

THE CONSTITUTION OF MARYLAND PROVIDES THAT "THE GENERAL ASSEMBLY
SHALL GRANT NO CHARTER FOR BANKING PURPOSES  ...  EXCEPT UPON THE
CONDITION THAT THE STOCKHOLDERS SHALL BE LIABLE TO THE AMOUNT OF THEIR
RESPECTIVE SHARE OR SHARES OF STOCK IN SUCH BANKING INSTITUTION, FOR
ALL ITS DEBTS AND LIABILITIES UPON NOTE, BILL OR OTHERWISE."  MARYLAND
CONSTITUTION, 1867, ARTICLE III, SEC. 39.  THIS PROVISION WAS EFFECTIVE
WITHOUT MORE TO IMPOSE A SUBSTANTIVE LIABILITY UPON STOCKHOLDERS IN
BANKS.  GHINGHER V. BACHTELL, SUPRA, PP. 688, 690.  ON THE OTHER HAND,
IT DID NOT TAKE FROM THE LEGISLATURE THE POWER TO IMPLEMENT THE
LIABILITY WITH STATUTORY REMEDIES, NOR IN THE ABSENCE OF SUCH STATUTES
DID IT TAKE THAT POWER FROM THE COURTS.  GHINGHER V. BACHTELL, SUPRA.
IN JANUARY, 1910, WHEN THE SMITHSBURG BANK WAS ORGANIZED, THE ONLY
APPLICABLE STATUTE WAS CHAPTER 206 OF THE ACTS OF 1870.  THE ACT SHOWS
BY ITS TITLE THAT IT IS ONE "TO CREATE STATE BANKING INSTITUTIONS TO
ENABLE THE SEVERAL BANKS IN THIS STATE - STATE AND NATIONAL - TO AVAIL
OF THE PROVISIONS THEREOF."  IT PROVIDES (SEC. 11) THAT "THE
CONTINUANCE OF THE SAID SEVERAL CORPORATIONS SHALL BE ON THE CONDITION
THAT THE STOCKHOLDERS AND DIRECTORS OF EACH OF SAID CORPORATIONS SHALL
BE LIABLE TO THE AMOUNT OF THEIR RESPECTIVE SHARE OR SHARES OF STOCK IN
SUCH CORPORATION, FOR ALL ITS DEBTS AND LIABILITIES UPON NOTE, BILL OR
OTHERWISE, AND UPON THIS FURTHER CONDITION, THAT THIS ACT AND EVERY
PART OF IT MAY BE ALTERED FROM TIME TO TIME, OR REPEALED BY THE
LEGISLATURE."  THE MARYLAND COURTS HAVE HELD IN A SERIES OF DECISIONS
THAT THE LIABILITY THUS RECOGNIZED WAS NOT ENFORCIBLE BY THE BANK
ITSELF IN THE EVENT OF ITS INSOLVENCY, OR BY A LIQUIDATOR OR RECEIVER
SUING IN ITS BEHALF.  GHINGHER V. BACHTELL, SUPRA; MINERS BANK V.
SNYDER, 100 MD. 57, 67; 59 ATL. 707; COLTON V. MAYER, 90 MD. 711, 714;
45 ATL. 874.  THE RIGHT OF ACTION WAS NO PART OF THE ASSETS OF THE
INSOLVENT CORPORATION.  THE MEANING OF THE STATUTE WAS THOUGHT TO BE
THAT EVERY CREDITOR OF THE CORPORATION IN ASSUMING THAT RELATION
ACQUIRED FOR HIS INDIVIDUAL USE, AND NOT AS A CLASS REPRESENTATIVE, A
SUPPLEMENTAL RIGHT OF ACTION AGAINST THE HOLDERS OF THE SHARES.  TO
RATIONALIZE THIS RIGHT OF ACTION, IT WAS SAID TO REST UPON AN IMPLIED
CONTRACT BETWEEN THE CREDITOR ON THE ONE SIDE AND ON THE OTHER THE
HOLDERS OF THE SHARES AT THE CREATION OF THE DEBT.  GHINGHER V.
BACHTELL, SUPRA.  CONTRACT BEING THE BASIS OF THE STATUTORY REMEDY, THE
COURTS DEDUCED THE CONSEQUENCE THAT THE LIABILITY DID NOT EXTEND TO
STOCKHOLDERS WHO BECAME SUCH AFTER THE DEBT WAS IN EXISTENCE.  FOR THE
SAME REASON ANY STOCKHOLDER WAS FREE TO REDUCE HIS LIABILITY BY THE USE
OF SET-OFFS OR COUNTERCLAIMS AVAILABLE AT THE TIME OF SUIT AGAINST THE
PRIMARY OBLIGOR.  GHINGHER V. BACHTELL, SUPRA, P. 694; CAHILL V.
ORIGINAL BIG GUN ASSN., 94 MD. 353; 50 ATL. 1044. 

IN JUNE, 1910, LESS THAN FIVE MONTHS AFTER THE INCORPORATION OF THIS
BANK, A STATUTE WAS ENACTED, ABROGATING THE REMEDY UNDER THE THEN
EXISTING STATUTE AND SUBSTITUTING ANOTHER.  ACTS OF 1910, C. 219;
MARYLAND CODE, ARTICLE II, SEC. 72 "STOCKHOLDERS OF EVERY BANK AND
TRUST COMPANY SHALL BE HELD INDIVIDUALLY RESPONSIBLE, EQUALLY AND
RATABLY, AND NOT ONE FOR ANOTHER, FOR ALL CONTRACTS, DEBTS AND
ENGAGEMENTS OF EVERY SUCH CORPORATION, TO THE EXTENT OF THE AMOUNT OF
THEIR STOCK THEREIN, AT THE PAR VALUE THEREOF, IN ADDITION TO THE
AMOUNT INVESTED IN SUCH STOCK  ... AND THE LIABILITY OF SUCH
STOCKHOLDERS SHALL BE AN ASSET OF THE CORPORATION FOR THE BENEFIT
RATABLY OF ALL THE DEPOSITORS AND CREDITORS OF ANY SUCH CORPORATION, IF
NECESSARY TO PAY THE DEBTS OF SUCH CORPORATION, AND SHALL BE
ENFORCEABLE ONLY BY APPROPRIATE PROCEEDINGS BY A RECEIVER, ASSIGNEE OR
TRUSTEE OF SUCH CORPORATION ACTING UNDER THE ORDERS OF A COURT OF
COMPETENT JURISDICTION."  A LIKE REMEDY HAD PREVIOUSLY BEEN CREATED
AGAINST STOCKHOLDERS IN TRUST COMPANIES.  ACTS OF 1904, C. 101; ACTS OF
1908, C. 153.  THROUGH THESE AMENDATORY ACTS, THE CAUSE OF ACTION
FORMERLY ENFORCIBLE BY THE CREDITORS SEPARATELY, EACH SUING FOR
HIMSELF, BECAME ENFORCIBLE BY THE RECEIVER AS THE REPRESENTATIVE OF
ALL.  AS A CONSEQUENCE OF THE NEW PROCEDURE, THE ASSESSMENT WAS TO BE
LAID UPON ALL THE HOLDERS OF SHARES AT THE TIME OF LIQUIDATION WITHOUT
REFERENCE TO THEIR RELATION TO THE BANK AT THE CREATION OF THE DEBTS,
THOUGH STOCKHOLDERS DROPPING OUT SOONER MIGHT ESCAPE A LIABILITY WHICH
UNDER THE EARLIER LAW WOULD HAVE CLUNG TO THEM INDEFINITELY.  MOREOVER,
OFFSETS AND COUNTERCLAIMS WERE NO LONGER TO BE AVAILABLE TO REDUCE THE
SEVERAL ASSESSMENTS AND THUS ESTABLISH INEQUALITY.  STOCKHOLDERS WHEN
SUED BY THE RECEIVER WOULD CONTRIBUTE TO THE FUND RATABLY, AND THEN
PROVE THEIR CLAIMS AGAINST THE BANK IN THE SAME WAY AS OTHER
CREDITORS.  SUCH IN OUTLINE IS THE EFFECT OF THE STATUTORY CHANGES AS
THE HIGHEST COURT OF MARYLAND HAS DEFINED THEM IN THIS VERY CASE. 

DO CHANGES OF THAT ORDER IMPAIR THE OBLIGATION OF A CONTRACT BETWEEN
THE CORPORATION AND THE STOCKHOLDERS IN CONTRAVENTION OF THE PROVISIONS
OF THE CONSTITUTION OF THE UNITED STATES? 

THE ANSWER MUST BE "NO," AND THIS FOR TWO REASONS, FIRST, BECAUSE THE
CHANGES ARE DIRECTED TO THE IMPLEMENTING REMEDIES RATHER THAN THE
SUBSTANTIVE LIABILITY, AND SECOND, BECAUSE A CHANGE OF SUBSTANTIVE
LIABILITY WAS MADE PERMISSIBLE BY THE RESERVATION OF A POWER OF
ALTERATION OR REPEAL. 

(1)  THE OBLIGATION LAID UPON THE SHAREHOLDERS BY THE MARYLAND
CONSTITUTION, THOUGH SUSCEPTIBLE OF LEGISLATIVE AND JUDICIAL REGULATION
IN RESPECT OF THE MODE OF ITS ENFORCEMENT, WAS A SUBSTANTIVE LIABILITY
TO WHICH EVERY STOCKHOLDER SUBJECTED HIMSELF UPON THE ACQUISITION OF
HIS STOCK.  THE LEGISLATURE DID NOT EXHAUST THE MEASURE OF THAT
CONSTITUTIONAL LIABILITY BY THE CREATION OF A PARTICULAR REMEDIAL
DEVICE.  THE REMEDY ADOPTED WAS INTERPRETED JUDICIALLY AS HAVING IN
VIEW A SUIT BY A CREDITOR AGAINST THE PARTICULAR GROUP OF STOCKHOLDERS
WHO HAD UNDERTAKEN BY IMPLICATION TO ANSWER FOR HIS DEBT.  THIS DOES
NOT MEAN THAT A DIFFERENT FORM OF REMEDY, FOR EXAMPLE A SUIT BY A
RECEIVER, WOULD HAVE BEEN A DEPARTURE FROM THE CONSTITUTION, IF THE
STATUTE HAD PRESCRIBED THAT METHOD OF ENFORCEMENT.  THE BROAD BUT
INDEFINITE WORDS OF THE CONSTITUTIONAL COMMAND GAVE PERMISSION TO THE
LEGISLATURE TO ESTABLISH ANY REMEDIES REASONABLY APPROPRIATE TO THE
GENERAL END IN VIEW.  CF. WHITMAN V. OXFORD NATIONAL BANK, 176 U.S.
559, 562; BERNHEIMER V. CONVERSE, 206 U.S. 516, 529.  SO, THE BROAD BUT
INDEFINITE WORDS OF THE LEGISLATION FIRST ADOPTED, THE ACT OF 1870,
GAVE FREEDOM TO THE COURTS TO DEVELOP THROUGH THE PROCESS OF
CONSTRUCTION A CAUSE OF ACTION ENFORCIBLE AT THE INSTANCE OF A CREDITOR
WITHOUT ASSERTING IN SO DOING THAT A DIFFERENT CAUSE OF ACTION,
ENFORCIBLE THROUGH A RECEIVER, WOULD HAVE BEEN AN INAPPROPRIATE
IMPLEMENT OF THE CONSTITUTIONAL LIABILITY, IN THE EVENT THAT THE
LEGISLATURE OR THE COURTS HAD CHOSEN TO ADOPT IT.  STOCKHOLDERS WHO
BECAME SUCH WHILE THE FIRST STATUTE WAS IN FORCE WERE CHARGEABLE WITH
NOTICE THAT A NEW REMEDY MIGHT BE ADOPTED IF THE ONE FIRST CHOSEN WAS
INADEQUATE.  THEY WOULD HAVE BEEN CHARGEABLE WITH SUCH NOTICE THOUGH
NOTHING HAD BEEN SAID.  THEY WERE CHARGEABLE, AS IT HAPPENS, BY THE
WORDING OF THE STATUTE, THE CHARTER BEING GRANTED UPON THE CONDITION
THAT THE ACT OR ANY PART OF IT MIGHT BE ALTERED OR REPEALED. 

THE REMEDY FIRST ESTABLISHED WAS FOUND TO BE UNWORKABLE.  GHINGHER V.
BACHTELL, SUPRA, AT P. 692; MURPHY V. WHEATLEY, 102 MD. 501, 515; 63
ATL. 62.  STILL ACTING WITHIN THE LIMITS OF THE CONSTITUTIONAL COMMAND,
THE LEGISLATURE OF MARYLAND ANNOUNCED ANOTHER REMEDY, LESS UNWIELDY AND
CONFUSING.  IN THE VIEW OF THE STATE COURT, THE SUBSTANTIVE LIABILITY
AS THE CONSTITUTION HAD CREATED IT WAS THE SAME UNDER THE NEW PROCEDURE
AS IT HAD BEEN FROM THE BEGINNING.  GHINGHER V. BACHTELL, SUPRA.  THE
COURT WAS FAR FROM HOLDING THAT THE STATUTE HAD ENLARGED IT.  WHAT HAD
HAPPENED WAS MERELY THIS, THAT ANOTHER REMEDY HAD BEEN ESTABLISHED TO
IMPLEMENT A LIABILITY CREATED LONG AGO.  CF. PITTSBURGH STEEL CO. V.
BALTIMORE EQUITABLE SOCIETY, 226 U.S. 455; HILL V. MERCHANTS' MUTUAL
INS. CO., 134 U.S. 515; FOURTH NATIONAL BANK V. FRANCKLYN, 120 U.S.
747; 755; SHRIVER V. WOODBINE SAVINGS BANK, 285 U.S. 467, 474, 479.  WE
CANNOT SEE IN THIS AN ATTEMPT TO LAY UPON THE STOCKHOLDERS BY FORCE OF
LATER LEGISLATION A NEW AND DIFFERENT BURDEN FROM THAT ACCEPTED AT THE
OUTSET.  NOR WOULD IT HELP THE APPELLANTS ANYTHING TO ASSUME IN THEIR
BEHALF THAT THE CONSTITUTION OF THE STATE HAS BEEN GIVEN A NEW MEANING,
IF THE NEW MEANING IS NOT DUE TO THE COMPULSION OF A STATUTE.  CHANGE
BY JUDICIAL CONSTRUCTION OF ANTECEDENT LEGISLATION DOES NOT IMPAIR A
CONTRACT, AT LEAST IN THE FORBIDDEN SENSE, IF IT BE GRANTED ARGUENDO
THAT SUCH A CHANGE CAN BE DISCOVERED.  TIDAL OIL CO. V. FLANAGAN, 263
U.S. 444, 450; FLEMING V. FLEMING, 264 U.S. 29, 31; BRINKERHOFF-FARIS
CO. V. HILL, 281 U.S. 673, 680; GREAT NORTHERN RY. CO. V. SUNBURST OIL
& REFINING CO., 287 U.S. 358, 364.  THE NEW MEANING, IF THERE IS ANY,
IS NOT ASCRIBED TO THE CONSTITUTION BECAUSE A LATER STATUTE HAS SAID IT
MUST BE DONE.  THE NEW MEANING IS THE PRODUCT OF THE INDEPENDENT
JUDGMENT OF A COURT.  SO THE STATE COURT HAS TOLD US, AND THE GOOD
FAITH OF ITS DECLARATION IS NOT SUCCESSFULLY IMPEACHED.  BROAD RIVER
POWER CO. V. SOUTH CAROLINA, 281 U.S. 537, 540.  TO CHANGES THUS
WROUGHT THE CONSTITUTION OF THE UNITED STATES DOES NOT OFFER AN
IMPEDIMENT. 

(2)  THE RESULT WOULD NOT BE DIFFERENT IF THE EFFECT OF THE STATUTORY
AMENDMENTS WERE TO BE VIEWED AS AN ENLARGEMENT OF THE SUBSTANTIVE
LIABILITY FOR DEBTS AFTERWARDS CONTRACTED, THE ENLARGEMENT BEING
APPLICABLE TO STOCKHOLDERS WITHOUT EXCEPTION, PRESENT AS WELL AS
FUTURE.  THE CHARTER WAS ACCEPTED SUBJECT TO THE CONDITION THAT THE
PERSONAL LIABILITY THEN PRESCRIBED BY STATUTE SHOULD BE SUBJECT
THEREAFTER TO REPEAL OR ALTERATION.  THIS COURT HAS HELD THAT WHEN SUCH
A CONDITION ATTACHES TO A CHARTER, THERE IS NO UNCONSTITUTIONAL CHANGE
OF THE OBLIGATION OF A CONTRACT BY A SUBSEQUENT ENLARGEMENT OF THE
LIABILITY OF STOCKHOLDERS AS TO DEBTS AFTERWARDS CONTRACTED, THOUGH THE
SHARES SO AFFECTED WERE ACQUIRED BEFORE THE CHANGE WAS MADE.  SHERMAN
V. SMITH, 1 BLACK 587, AFFIRMING 21 N.Y. 9; LOOKER V. MAYNARD, 179 U.S.
46, 53; CF. MCGOWAN V. MCDONALD, 111 CAL. 57, 66; 43 PAC. 418; PERKINS
V. COFFIN, 84 CONN. 275, 295; 79 ATL. 1070; PATE V. BANK OF NEWTON, 116
MISS.  666, 686; 77 SO. 601.  STOCKHOLDERS WHO SUBSCRIBE TO STOCK
SUBJECT TO SUCH A CONDITION ASSUME THE RISK THAT THEIR RELATION TO THE
CORPORATION MAY BE ALTERED TO THEIR PREJUDICE.  NOR IS THEIR POSITION
ANY STRONGER BECAUSE THE NEW LIABILITY IS HEAVIER (IF SO IT BE ASSUMED
TO BE) THAN THAT IMPOSED UPON THEM DIRECTLY BY THE CONSTITUTION OF THE
STATE.  THE CONSTITUTIONAL LIABILITY IS NOT A MAXIMUM, BUT A MINIMUM,
AND THE LEGISLATURE DOES NOT TRANSCEND THE BOUNDS OF LEGISLATIVE POWER
BY INCREASING IT THEREAFTER.  MURPHY V. WHEATLEY, SUPRA, PP. 514, 515,
516; DAVIS V. MOORE, 130 ARK. 128, 135; 197 S.W. 295; PARKER V.
CAROLINA SAVINGS BANK, 53 S.C. 583, 592; 31 S.E. 673; DUKE V. FORCE,
120 WASH. 599, 606; 208 PAC. 67. 

SHERMAN V. SMITH, SUPRA, LEFT UNANSWERED AN INQUIRY (1 BLACK AT P.
594) WHETHER THE AMENDMENT WOULD HAVE GONE TOO FAR IF IT HAD BEEN MADE
APPLICABLE TO DEBTS EXISTING AT THE DATE OF ITS ENACTMENT AS WELL AS TO
EXISTING STOCKHOLDERS.  WE MAY LEAVE THE QUESTION OPEN NOW.  APPELLANTS
HAVE FAILED TO SHOW THAT ANY DEBTS OF THE CORPORATION TO BE ENFORCED IN
THESE PROCEEDINGS WERE DEBTS EXISTING ON JUNE 1, 1910, WHEN THE PRESENT
STATUTE BECAME LAW, STILL LESS THAT THE SUBTRACTION OF THOSE DEBTS
WOULD HAVE MADE THE ASSESSMENT LOWER THAN THE PAR VALUE OF THE SHARES. 
THE EXTENT OF THE DEFICIENCY IS PERSUASIVE, IN THE ABSENCE OF EVIDENCE
TO THE CONTRARY, THAT THE ASSESSMENT MUST HAVE BEEN THE SAME IF THE OLD
DEBTS HAD BEEN DISREGARDED.  SUCH OF THEM AS EXIST MUST HAVE BEEN
CONTRACTED IN THE BRIEF INTERVAL BETWEEN JANUARY 24, 1910 AND JUNE 1
FOLLOWING.  AT ALL EVENTS, THE BURDEN WAS ON THE APPELLANTS TO SHOW
THEMSELVES HARMED THROUGH THE OPERATION OF THE STATUTE CHALLENGED AS
UNLAWFUL.  PREMIER-PABST SALES CO. V. GROSSCUP, 298 U.S. 226, 227;
HATCH V. REARDON, 204 U.S. 152, 160, 161.  THIS THEY HAVE NOT DONE.  AS
TO DEBTS TO BE CONTRACTED AFTERWARDS, IF NOT ALSO AS TO OTHERS, THE
STATUTE IS IMPREGNABLE. 

WHAT HAS BEEN WRITTEN IS NOT AT WAR WITH ANYTHING DECIDED OR EVEN
INTIMATED IN COOMBES V. GETZ, 285 U.S. 434, 441, 442, MUCH RELIED ON BY
APPELLANTS.  THERE CREDITORS WERE COMPLAINING OF THE DESTRUCTION OF A
CAUSE OF ACTION WHEREBY THEY WERE LEFT WITHOUT A REMEDY.  HERE THE
RECORD DOES NOT TELL US THAT ANY CREDITORS WHO WERE SUCH WHEN THE FIRST
STATUTE WAS REPEALED HAVE CLAIMS STILL OUTSTANDING FOR DEBTS CONTRACTED
THEN.  IN THE USUAL COURSE OF BUSINESS DEPOSITS MADE SO LONG AGO MUST
ALMOST CERTAINLY HAVE BEEN PAID THROUGH THE APPLICATION OF THE
PRINCIPLE THAT THE FIRST DRAWINGS OUT ARE TO BE ATTRIBUTED TO THE FIRST
PAYMENTS IN.  CARSON V. FEDERAL RESERVE BANK, 254 N.Y. 218, 232; 172
N.E. 475.  AT ANY RATE, THERE IS NOTHING TO THE CONTRARY IN THE PAGES
OF THIS RECORD.  THE FACT IS THUS APPARENT THAT THE CONTRACT RIGHTS OF
CREDITORS ARE NOT INVOLVED AT ALL.  WHATEVER COMPLAINT IS HEARD AS TO
THE SUBSTITUTION OF A NEW REMEDY IN 1910 IS NOT FROM CREDITORS OF THAT
DATE, UNABLE TO COLLECT THEIR DEBTS.  THE COMPLAINT COMES TO US FROM
STOCKHOLDERS, WHO TOOK THEIR STOCK WITH NOTICE THAT THE REMEDIES
AGAINST THEM MIGHT BE CHANGED FROM TIME TO TIME.* 

*"THE AUTHORITY OF A STATE UNDER THE SO-CALLED RESERVED POWER IS
WIDE; BUT IT IS NOT UNLIMITED.  THE CORPORATE CHARTER MAY BE REPEALED
OR AMENDED, AND, WITHIN LIMITS NOT NOW NECESSARY TO DEFINE, THE
INTERRELATIONS OF STATE, CORPORATION AND STOCKHOLDERS MAY BE CHANGED;
BUT NEITHER VESTED PROPERTY RIGHTS NOR THE OBLIGATION OF CONTRACTS OF
THIRD PERSONS MAY BE DESTROYED OR IMPAIRED."  COOMBES V. GETZ, SUPRA,
PP. 441, 442. 

SECOND:  THE CASE OF THE HAGERSTOWN BANK AND TRUST COMPANY. 

AS ALREADY POINTED OUT, ALL THE COMPLAINING STOCKHOLDERS IN THIS
COMPANY ACQUIRED THEIR SHARES AFTER THE ADOPTION OF THE ACT OF 1910,
WITH ITS NEW REMEDIAL DEVICES.  WHAT HAS BEEN SAID AS TO THE
STOCKHOLDERS IN THE PEOPLES BANKING COMPANY OF SMITHSBURG APPLIES WITH
REDOUBLED FORCE TO THE STOCKHOLDERS IN THE TRUST COMPANY. 

THE DECREE IN EACH CASE SHOULD BE AFFIRMED. 
..END :















MORLEY CO. V. MD. CASUALTY CO., 300 U.S. 185 


NO. 325.  ARGUED JANUARY 8, 1937.  - DECIDED FEBRUARY 1, 1937.  - 84
F.(2D) 522, 526, REVERSED. 


1.  A WRONGFUL PURPOSE IS NOT AN ELEMENT OF A CAUSE OF ACTION FOR
EXONERATION.  P. 189. 

2.  THE RIGHT OF A SURETY TO BE EXONERATED FROM OBLIGATIONS OF THE
PRINCIPAL DOES NOT ENTITLE THE SURETY TO CUSTODY OR CONTROL OF THE FUND
DIRECTED TO BE USED FOR THE PURPOSE.  P. 192. 

3.  IN THE ABSENCE OF A CROSS-APPEAL, THE APPELLEE, TO SUPPORT THE
DECREE, MAY URGE ARGUMENT CONTRADICTORY OF THE REASONING OF THE LOWER
COURT, OR MAY ADDUCE MATTER IN THE RECORD WHICH THE COURT OVERLOOKED OR
IGNORED, BUT CANNOT ATTACK THE DECREE TO ENLARGE HIS OWN RIGHTS UNDER
IT OR TO LESSEN HIS ADVERSARY'S.  P. 191. 

4.  THE FACT THAT FINDINGS, IF AGAINST THE WEIGHT OF THE EVIDENCE,
MAY BE REVISED ON APPEAL IN EQUITY AT THE INSTANCE OF AN APPELLANT,
DOES NOT MEAN THAT THEY MAY BE REVISED AT THE INSTANCE OF AN APPELLEE,
AT LEAST WHERE THEIR REVISION WOULD CARRY WITH IT AS AN INCIDENT A
REVISION OF THE JUDGMENT.  P. 191. 

5.  A SURETY ON A BOND TO SECURE THE PERFORMANCE OF A PUBLIC
CONSTRUCTION CONTRACT AND PAYMENT OF LABORERS AND MATERIALMEN, MADE A
SUPPLEMENTARY CONTRACT WITH THE CONTRACTOR TO ADVANCE MONEY FOR USE IN
CARRYING ON THE WORK, TO BE DEPOSITED IN A SPECIAL JOINT ACCOUNT, UNDER
THEIR JOINT CONTROL, IN WHICH ALSO THE CONTRACTOR WAS TO DEPOSIT ALL
PAYMENTS RECEIVED FROM THE GOVERNMENT.  THE CONTRACTOR HAVING FAILED TO
DEPOSIT ITS FINAL PAYMENT FROM THE GOVERNMENT (THE WARRANT FOR WHICH
WAS IMPOUNDED) THE DISTRICT COURT HELD THAT THE SURETY, BEING ITSELF
PARTLY IN DEFAULT, COULD NOT HAVE SPECIFIC PERFORMANCE OF THE
SUPPLEMENTARY AGREEMENT BUT WAS ENTITLED, APART FROM AGREEMENT, TO BE
EXONERATED FROM PRESENT LIABILITIES, AND IT THEREFORE DECREED THAT THE
PROCEEDS OF THE WARRANT BE PLACED IN A BANK TO BE CHOSEN BY THE
CONTRACTOR, AS A SPECIAL TRUST FUND FOR THE PAYMENT OF BILLS FOR LABOR
AND MATERIAL, NO PROVISION BEING MADE FOR ANY CONTROL IN THE SURETY. 
UPON THE CONTRACTOR'S APPEAL, THE COURT OF APPEALS MADE ITS OWN FINDING
THAT THE SURETY'S DEFAULT WAS INNOCENT AND UNSUBSTANTIAL AND DIRECTED
THAT A DECREE OF SPECIFIC PERFORMANCE BE SUBSTITUTED FOR THE DECREE OF
EXONERATION.  HELD THAT THE APPELLATE COURT HAD EXCEEDED ITS POWER.  P.
192. 

MORLEY CONSTRUCTION CO. ET AL. V. MARYLAND CASUALTY CO. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 

CERTIORARI, 299 U.S. 529, TO REVIEW A DECREE DIRECTING THAT A DECREE
OF THE DISTRICT COURT FOR EXONERATION OF A SURETY BE MODIFIED TO A
DECREE FOR SPECIFIC PERFORMANCE OF A SUPPLEMENTARY AGREEMENT BETWEEN
THE SURETY AND ITS PRINCIPAL. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

THE POWER OF AN APPELLATE COURT TO MODIFY A DECREE IN EQUITY FOR THE
BENEFIT OF AN APPELLEE IN THE ABSENCE OF A CROSS-APPEAL IS HERE TO BE
ADMEASURED. 

MORLEY CONSTRUCTION COMPANY, A PETITIONER IN THIS COURT, MADE A
CONTRACT WITH THE UNITED STATES, ACTING BY THE VETERAN'S ADMINISTRATION
DEPARTMENT, FOR THE CONSTRUCTION OF A VETERANS' HOSPITAL AT BATAVIA,
NEW YORK.  IN CONFORMITY WITH STATUTE (40 U.S.C. SEC. 270) IT GAVE A
BOND FOR THE COMPLETION OF THE CONTRACT AND FOR THE PAYMENT OF ALL
BILLS FOR MATERIAL AND LABOR, THE RESPONDENT MARYLAND CASUALTY COMPANY
SIGNING THE BOND AS SURETY.  DURING THE PROGRESS OF THE WORK, THE
CONTRACTOR FOUND ITSELF IN NEED OF A LOAN OF MONEY TO ENABLE IT TO GO
ON.  ACCORDINGLY A SUPPLEMENTARY AGREEMENT WAS MADE BETWEEN THE
CONTRACTOR AND THE SURETY TO RELIEVE THE SITUATION.  BY THAT AGREEMENT,
DATED APRIL 28, 1933, THE CONTRACTOR AGREED TO DEPOSIT IN A DESIGNATED
TRUST COMPANY IN BUFFALO $5,000 TO BE USED IN THE PERFORMANCE OF THE
WORK AND TO DEPOSIT IN THE SAME ACCOUNT FOR THE SAME PURPOSE ALL MONEYS
RECEIVED FROM THE UNITED STATES AS PAYMENTS UPON THE CONTRACT.  THE
SURETY AGREED TO DEPOSIT IN THE SAME ACCOUNT $5,000 AS A LOAN TO BE
SECURED BY THE CONTRACTOR'S NOTE, AND ADDITIONAL MONEYS SUFFICIENT TO
PAY THE PRESENT AND FUTURE BILLS OF PLASTERERS, AMOUNTING, AS THE
EVIDENCE SHOWS, TO $5,700.  THE CONTRACTOR AND THE SURETY WERE TO HAVE
JOINT CONTROL OF THE ACCOUNT, AND NO MONEYS WERE TO BE WITHDRAWN
THEREFROM WITHOUT THE APPROVAL OF THE SURETY BY DESIGNATED
REPRESENTATIVES, THE APPROVAL TO BE INDICATED UPON THE CHECK OR DRAFT
IN WRITING. 

FOLLOWING THIS SUPPLEMENTARY AGREEMENT, THE CONTRACTOR WENT ON WITH
THE WORK, AND BROUGHT IT TO COMPLETION.  THE SURETY MADE THE FIRST
PAYMENT OF $5,000 IN ACCORDANCE WITH ITS PROMISE BUT REFUSED TO PAY THE
$5,700 OWING TO THE PLASTERERS.  IN THE MEANTIME A SERIES OF PAYMENTS
BECAME OWING FROM THE GOVERNMENT UPON ESTIMATES OF VALUE IN ADVANCE OF
COMPLETION AND ACCEPTANCE.  WARRANTS FOR THESE PAYMENTS WERE FORWARDED
BY THE GOVERNMENT TO THE TRUST COMPANY IN BUFFALO TO BE PLACED IN THE
JOINT ACCOUNT, NOTICE HAVING BEEN GIVEN BY THE CONTRACTOR TO ISSUE THEM
ACCORDINGLY.  HOWEVER, A DIFFERENT COURSE WAS FOLLOWED WHEN THE FINAL
PAYMENT BECAME DUE.  APPARENTLY THROUGH INADVERTENCE, THE GOVERNMENT
SENT A WARRANT FOR THAT PAYMENT ($59,780.82) TO THE CONTRACTOR ITSELF
AT ITS OFFICE IN KANSAS CITY, MISSOURI.  THE CONTRACTOR ENDORSED THE
WARRANT, DELIVERED IT TO THE MERCHANTS BANK OF KANSAS CITY, ONE OF THE
PETITIONERS IN THIS COURT, AND DIRECTED THE BANK TO ISSUE A CASHIER'S
CHECK FOR A LIKE AMOUNT TO THE ORDER OF THE CONTRACTOR'S PRESIDENT. 
THE BANK MADE OUT THE CHECK, BUT HELD IT TO AWAIT THE PAYMENT OF THE
WARRANT, WHICH IT DEPOSITED IN A FEDERAL RESERVE BANK TO BE FORWARDED,
IN THE USUAL COURSE OF COLLECTION, TO THE TREASURY AT WASHINGTON. 
NEITHER CHECK NOR WARRANT HAS BEEN PAID AS A CONSEQUENCE OF AN
INJUNCTION OBTAINED BY THE RESPONDENT. 

UPON LEARNING FROM THE VETERANS' ADMINISTRATION DEPARTMENT OF THE
TRANSMISSION OF THE WARRANT, THE SURETY BEGAN TWO SUITS, ONE IN THE
DISTRICT OF COLUMBIA, WHERE THE PAYMENT OF THE WARRANT WAS STAYED BY AN
INJUNCTION, THE OTHER THE SUIT AT BAR.  IT RECOUNTS IN ITS COMPLAINT
THE FACTS OR MOST OF THEM ALREADY STATED IN THIS OPINION, ADDING
THERETO THAT OUTSTANDING BILLS FOR MORE THAN $100,000 ARE COVERED BY
ITS BOND.  IT SAYS THAT IT IS ENTITLED TO THE SPECIFIC PERFORMANCE OF
THE SUPPLEMENTARY AGREEMENT AND TO A DECREE DEPOSITING THE WARRANT IN
THE TRUST COMPANY AT BUFFALO TO BE APPLIED UPON THE JOINT ACCOUNT.  IT
SAYS ALSO THAT BY REASON OF THE UNPAID BILLS OF MATERIALMEN AND
LABORERS THERE IS A DUTY ON THE PART OF THE CONTRACTOR TO EXONERATE THE
SURETY FROM LOSS OR LIABILITY AND TO APPLY THE WARRANT TO THAT
PURPOSE.  FINALLY, IT MAKES CLAIM TO A RIGHT OF SUBROGATION TO THE
POSITION OF THE CONTRACTOR OVER AGAINST THE GOVERNMENT, A CLAIM WHICH
APPARENTLY HAS BEEN ABANDONED AND WILL NOT ENGAGE US FURTHER.  THE BILL
OF COMPLAINT ENDS WITH A PRAYER FOR RELIEF APPROPRIATE TO THE SEVERAL
THEORIES OF LIABILITY PUT FORWARD BY THE PLEADER, THE THEORY OF
SPECIFIC PERFORMANCE, THE THEORY OF EXONERATION, AND THE THEORY OF
SUBROGATION.  TO RENDER THE RELIEF EFFECTUAL, THE BANK IN KANSAS CITY
WAS JOINED AS A DEFENDANT. 

THE DISTRICT JUDGE HELD THAT THE SURETY WAS NOT ENTITLED TO THE
SPECIFIC PERFORMANCE OF THE AGREEMENT, HAVING FAILED TO PAY THE
PLASTERERS AND BEING THEREFORE IN DEFAULT ITSELF.  HE HELD, HOWEVER,
THAT APART FROM ANY AGREEMENT THE CONTRACTOR WAS SUBJECT TO A DUTY TO
EXONERATE THE SURETY FROM PRESENT LIABILITIES.  TRUE, THERE WAS NO
PURPOSE ON THE PART OF THE CONTRACTOR TO DIVERT THE PROCEEDS OF THE
WARRANT FROM THE USES OF THE CONTRACT.  AS TO THIS THE FINDING IS
EXPLICIT.  EVEN SO, A CAUSE OF ACTION FOR EXONERATION DOES NOT INCLUDE
AMONG ITS ELEMENTS THE PRESENCE OF A WRONGFUL PURPOSE.  GLADES COUNTY
V. DETROIT FIDELITY CO., 57 F.(2D) 449; WEST HUNTSVILLE COTTON MILLS V.
ALTER, 164 ALA. 305; 51 SO. 338; PAVARINI V. TITLE GUARANTY & SURETY
CO., 36 APP. D.C. 348; HUTCHINSON GROCER CO. V. BRAND, 79 KAN. 340; 99
PAC. 592.  THE DECREE CONFORMS TO THE FINDINGS IN ITS DISTRIBUTION OF
RELIEF.  IT ADJUDGES THE COMPLAINANT TO BE ENTITLED TO EXONERATION BUT
NOT TO SPECIFIC PERFORMANCE.  THE PROCEEDS OF THE WARRANT ARE TO BE
PLACED IN A BANK TO BE CHOSEN BY THE CONTRACTOR, THE DEPOSIT TO BE
"DESIGNATED AS A SPECIAL TRUST FUND FOR THE PAYMENT OF BILLS FOR LABOR
AND MATERIAL USED ON THE UNITED STATES VETERANS HOSPITAL IN BATAVIA,
NEW YORK."  NO PROVISION IS MADE THAT THE SURETY, OR INDEED ANY ONE
OTHER THAN THE CONTRACTOR, SHALL HAVE ANY CONTROL THEREOF. 

FROM THAT DECREE THE CONTRACTOR APPEALED TO THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT.  THERE WAS NO CROSS-APPEAL BY THE
SURETY.  THE COURT OF APPEALS STATES IN ITS OPINION, "WE ARE IN GRAVE
DOUBT WHETHER EXONERATION CAN PROPERLY BE GRANTED."  PREFERRING BY
REASON OF THAT DOUBT TO PUT ITS DECISION ON SOME OTHER GROUND, IT
CONCLUDES THAT THERE SHOULD BE SPECIFIC PERFORMANCE OF THE
SUPPLEMENTARY AGREEMENT.  IT CONCEDES THAT THE SURETY IS IN DEFAULT FOR
FAILING TO LIVE UP TO THE AGREEMENT STRICTLY, BUT IT FINDS THAT THE
DEFAULT WAS NOT UNCONSCIONABLE OR FRAUDULENT, AND THAT A COURT OF
EQUITY IN ITS DISCRETION MAY OVERLOOK AN UNSUBSTANTIAL WRONG. 
RECOGNIZING THE NECESSITY OF MODIFYING THE DECREE IF EXONERATION IS TO
BE EXCHANGED FOR SPECIFIC PERFORMANCE, THE OPINION STATES THAT "AN
INJUNCTION AGAINST USING THE MONEYS EXCEPT AS AGREED UPON, AND AN ORDER
TO PLACE SAID MONEYS WHEN RECEIVED IN THE JOINT ACCOUNT AND DISBURSE
THE SAME IN PAYMENT OF JUST CLAIMS FOR LABOR OR MATERIALS, WOULD MEET
THE REQUIREMENTS AND RIGHTS OF PLAINTIFF AND WOULD NOT BE IMPOSSIBLE OF
PERFORMANCE" AND THAT "A DECREE ALONG SUCH LINES SHOULD BE GRANTED BY
THE TRIAL COURT."  84 F.(2D) 522, 526.  ACCORDINGLY, THE MANDATE OF THE
APPELLATE COURT PROVIDES THAT THE CAUSE BE REMANDED TO THE DISTRICT
COURT WITH DIRECTIONS TO MODIFY ITS DECREE IN ACCORDANCE WITH THE VIEWS
EXPRESSED IN THE OPINION.  WE GRANTED CERTIORARI TO FIX THE MEASURE OF
RELIEF AVAILABLE TO A NON-APPEALING SUITOR. 

THE SUBSTITUTION OF SPECIFIC PERFORMANCE FOR EXONERATION AT THE
INSTANCE OF THE SURETY WAS NOT AN AFFIRMANCE OF THE DECREE BELOW, AS IF
THE REASONS ONLY HAD BEEN CHANGED WITH THE DECISION STANDING FIRM. 
ALIKE IN SUBSTANCE AND IN FORM THERE WAS A MODIFICATION OF THE DECREE
ITSELF, THE FACTS BEING FOUND ANEW AND DIFFERENTLY, THE LAW DECLARED
ANEW AND DIFFERENTLY, AND THE RELIEF REMODELED AND ADAPTED TO THE NEW
LAW AND THE NEW FACTS.  WITHOUT A CROSS-APPEAL, AN APPELLEE MAY "URGE
IN SUPPORT OF A DECREE ANY MATTER APPEARING IN THE RECORD ALTHOUGH HIS
ARGUMENT MAY INVOLVE AN ATTACK UPON THE REASONING OF THE LOWER COURT OR
AN INSISTENCE UPON MATTER OVERLOOKED OR IGNORED BY IT."  UNITED STATES
V. AMERICAN RAILWAY EXPRESS CO., 265 U.S. 425, 435.  WHAT HE MAY NOT DO
IN THE ABSENCE OF A CROSS-APPEAL IS TO "ATTACK THE DECREE WITH A VIEW
EITHER TO ENLARGING HIS OWN RIGHTS THEREUNDER OR OF LESSENING THE
RIGHTS OF HIS ADVERSARY, WHETHER WHAT HE SEEKS IS TO CORRECT AN ERROR
OR TO SUPPLEMENT THE DECREE WITH RESPECT TO A MATTER NOT DEALT WITH
BELOW."  IBID.  THE RULE IS INVETERATE AND CERTAIN.  CANTER V. AMERICAN
INSURANCE CO., 3 PET. 307, 318; CHITTENDEN V. BREWSTER, 2 WALL.  191,
196; THE MARIA MARTIN, 12 WALL.  31, 40, 41; FIELD V. BARBER ASPHALT
CO., 194 U.S. 618, 621; LANDRAM V. JORDAN, 203 U.S. 56, 62; UNION TOOL
CO. V. WILSON, 259 U.S. 107, 111; PEORIA & PEKIN UNION RY. CO. V.
UNITED STATES, 263 U.S. 528, 536; LANGNES V. GREEN, 282 U.S. 531, 538;
ALEXANDER V. COSDEN CO., 290 U.S. 484, 487.  FINDINGS MAY BE REVISED AT
THE INSTANCE OF AN APPELLANT, IF THEY ARE AGAINST THE WEIGHT OF
EVIDENCE, WHERE THE CASE IS ONE IN EQUITY.  THIS DOES NOT MEAN THAT
THEY ARE SUBJECT TO LIKE REVISION IN BEHALF OF APPELLEES, AT ALL EVENTS
IN CIRCUMSTANCES WHERE A REVISION OF THE FINDINGS CARRIES WITH IT AS AN
INCIDENT A REVISION OF THE JUDGMENT.  THERE IS NO NEED AT THIS TIME TO
FIX THE LIMITS OF THE RULE MORE SHARPLY.  "WHERE EACH PARTY APPEALS
EACH MAY ASSIGN ERROR, BUT WHERE ONLY ONE PARTY APPEALS THE OTHER IS
BOUND BY THE DECREE IN THE COURT BELOW, AND HE CANNOT ASSIGN ERROR IN
THE APPELLATE COURT, NOR CAN HE BE HEARD IF THE PROCEEDINGS IN THE
APPEAL ARE CORRECT, EXCEPT IN SUPPORT OF THE DECREE FROM WHICH THE
APPEAL OF THE OTHER PARTY IS TAKEN."  THE MARIA MARTIN, SUPRA.* 

*STATE DECISIONS ON THE QUESTION OF THE REVIEW OF FINDINGS AT THE
INSTANCE OF AN APPELLEE WHO HAS NOT TAKEN A CROSS-APPEAL EXHIBIT A WIDE
VARIANCE OF PROCEDURE.  FOR CASES OF THE STRICTER TYPE, SEE TURNER V.
EAST SIDE CANAL CO., 168 CAL. 103, 108; 142 PAC. 69; CLARK V. CORSER,
154 MINN. 508; 191 N.W. 917; COX V. STOKES, 156 N.Y. 491; 51 N.E. 316;
WERDEBACH'S ESTATE, 280 PA. 26; 124 ATL. 268.  WITH THESE CONTRAST THE
FOLLOWING:  BULLMAN V. COOPER, 362 ILL. 469; 200 N.E. 173; WYATT V.
MANNING, 217 IOWA 929; 250 N.W. 141; OPPENHEIMER V. BANK, 97 TENN. 19;
36 S.W. 705; HUNTINGTON V. LOVE, 56 WASH. 674; 106 PAC. 185. 

THE SURETY LAID CLAIM TO RELIEF UPON THE BASIS OF A CONTRACT, AND TO
OTHER RELIEF BY FORCE OF AN EQUITABLE DOCTRINE INDEPENDENT OF
CONTRACT.  THE DECREE OF THE DISTRICT COURT REJECTED THE FIRST CLAIM
BECAUSE THE CONTRACT HAD BEEN BROKEN, AND ACCEPTED THE SECOND BECAUSE
THE BREACH WAS THEN IRRELEVANT.  THE DECREE WAS RESPONSIVE TO THE CLAIM
THAT HAD BEEN ACCEPTED, AND NOT TO ANY OTHER.  IF THERE WAS TO BE
SPECIFIC PERFORMANCE OF THE CONTRACT, THE SURETY, TOGETHER WITH THE
CONTRACTOR, WOULD CONTROL THE DISTRIBUTION OF THE FUND, FOR SO THE
PARTIES HAD AGREED.  IF THERE WAS TO BE EXONERATION AND NOTHING MORE,
THE CONTRACTOR OR PERHAPS THE COURT WOULD CONTROL THE APPLICATION AND
THE SURETY WOULD STAND ASIDE.  STULZ-SICKLES CO. V. FREDBURN
CONSTRUCTION CORP., 114 N.J. EQ. 475, 478; 169 ATL. 27; CF. GLADES
COUNTY V. DETROIT FIDELITY CO., SUPRA; ARANT, SURETYSHIP, PP. 318, 319
AND CASES CITED.  EXONERATION "DOES NOT ENTITLE THE SURETY TO CUSTODY
OR CONTROL OF THE FUND."  STULZ-SICKLES CO. V. FREDBURN CONSTRUCTION
CORP., SUPRA.  THE DECISION OF THE COURT OF APPEALS PUTS AN END TO THIS
NICE ADJUSTMENT OF THE RELIEF TO THE LAW AND OF THE LAW TO THE FACTS AS
FOUND.  A DECREE APPROPRIATE TO EXONERATION IS ANNULLED, AND ONE
APPROPRIATE TO SPECIFIC PERFORMANCE IS GIVEN IN ITS PLACE.  THIS IS TO
FIND THE FACTS ANEW AND DIFFERENTLY, FOR THE TRIAL JUDGE HAD HELD, AT
LEAST BY IMPLICATION, THAT THE BREACH BY THE SURETY, VIEWED IN THE
LIGHT OF ALL THE CIRCUMSTANCES, WAS SOMETHING MORE THAN UNSUBSTANTIAL. 
IT IS TO FIND THE LAW ANEW AND DIFFERENTLY, FOR THE TRIAL JUDGE HAD
HELD THAT A SURETY CHARGEABLE WITH SUCH A BREACH WAS NOT ENTITLED TO A
DECREE UPON THE FOOTING OF THE CONTRACT.  EVEN MORE IMPORTANT, IT IS TO
GIVE A NEW MEASURE OF RELIEF, FOR THE TRIAL JUDGE HAD RULED THAT THE
FUND WAS NOT TO BE HELD UPON THE RESTRICTIONS STATED IN THE CONTRACT,
BUT UPON DIFFERENT RESTRICTIONS ORIGINATING IN THE CONSCIENCE OF THE
CHANCELLOR.  TRUE, THE RELIEF PROPER TO THE THEORY ACCEPTED AT THE
TRIAL IS ALMOST AS FAVORABLE FROM THE VIEWPOINT OF THE PROTECTION OF
THE SURETY AS THE ONE ADOPTED ON APPEAL, THOUGH DISTINCTLY LESS
BURDENSOME FROM THE VIEW-POINT OF THE PRINCIPAL.  EXONERATION IS NOT
THE SAME AS SPECIFIC PERFORMANCE, BUT IT IS NOT VERY DIFFERENT, AND MAY
BE NEARLY, IF NOT QUITE, AS GOOD.  THIS IS SURELY NOT A REASON WHY AN
APPELLATE COURT SHOULD BE AT LIBERTY TO TREAT THE TWO AS
INTERCHANGEABLE.  ONE MIGHT AS WELL SAY THAT AT THE INSTANCE OF A NON
APPEALING PLAINTIFF A JUDGMENT FOR SPECIFIC PERFORMANCE COULD BE MADE
TO TAKE THE PLACE OF ONE FOR THE RECOVERY OF DAMAGES.    THE DECREE
SHOULD BE REVERSED AND THE CAUSE REMANDED TO THE COURT OF APPEALS TO
PASS UPON THE QUESTION, NOT YET DEFINITIVELY ANSWERED, WHETHER RELIEF
IN THE FORM OF A DECREE FOR EXONERATION IS PROPER IN THE CIRCUMSTANCES,
AND FOR OTHER PROCEEDINGS IN ACCORD WITH THIS OPINION.  REVERSED. 
..END :

















KNOX LOAN ASSN. V. PHILLIPS, 300 U.S. 194 


NO. 389.  ARGUED JANUARY 14, 15, 1937.  - DECIDED FEBRUARY 1, 1937.  -
54 OH. APP. 334, REVERSED. 


1.  A JUDGMENT OF A STATE COURT AGAINST AN INSOLVENT ASSOCIATION FOR A
SUM OF MONEY IS FINAL, ALTHOUGH ACCOMPANIED BY PROVISIONS REQUIRING THE
DEBTOR TO TURN OVER ALL OF ITS PROPERTY TO A RECEIVER FOR LIQUIDATION
OF ITS BUSINESS AND PAYMENT OF THE DEBT.  P. 197. 

2.  UNDER THE FEDERAL FARM LOAN ACT, A NATIONAL FARM LOAN ASSOCIATION
CANNOT BE REQUIRED TO RETIRE, AND REPAY THE PAR VALUE OF, SHARES
SUBSCRIBED FOR AND PLEDGED WITH IT BY A MEMBER IN CONNECTION WITH THE
PROCUREMENT OF A LOAN FROM A FEDERAL LAND BANK, WHILE THE BANK REFUSES
TO RETIRE, AND MAKE RE-PAYMENT FOR, THE CORRESPONDING SHARES OF BANK
STOCK SUBSCRIBED FOR BY THE ASSOCIATION IN THAT CONNECTION AND PLEDGED
WITH THE BANK.  P. 198. 

3.  A SHAREHOLDER OF A FARM LOAN ASSOCIATION, SUBJECT BY STATUTE TO
AN EXTRA PERSONAL LIABILITY FOR ITS DEBTS, IS NOT ENTITLED TO HAVE HIS
SHARES RETIRED AND HIS SUBSCRIPTION PAYMENT REPAID WHEN THE ASSOCIATION
IS INSOLVENT AND CORRESPONDING SUBSCRIPTIONS TO THE STOCK OF THE
FEDERAL LAND BANK THAT MADE THE LOAN HAVE NOT BEEN CANCELED AND
REFUNDED.  P. 201. 

4.  A RECEIVERSHIP FOR THE PURPOSE OF SATISFYING A JUDGMENT, FALLS
WITH THE JUDGMENT.  P. 202. 

5.  A NATIONAL FARM LOAN ASSOCIATION IS AN INSTRUMENTALITY OF THE
FEDERAL GOVERNMENT; THE TIME AND MANNER OF ITS LIQUIDATION ARE GOVERNED
BY THE FEDERAL STATUTE; AND JURISDICTION DOES NOT RESIDE IN THE
TRIBUNALS OF A STATE TO WIND UP THE BUSINESS OF THIS GOVERNMENTAL
AGENCY EITHER BY A RECEIVERSHIP OR OTHERWISE.  P. 202. 

KNOX NATIONAL FARM LOAN ASSN. ET AL. V. PHILLIPS. 

CERTIORARI TO THE COURT OF APPEALS OF OHIO. 

CERTIORARI, 299 U.S. 533, TO REVIEW THE AFFIRMANCE OF A DECREE
AGAINST THE NATIONAL FARM LOAN ASSOCIATION FOR THE PAR VALUE OF CERTAIN
OF ITS SHARES, ACCOMPANIED BY PROVISIONS FOR PLACING THE ASSOCIATION IN
THE HANDS OF A RECEIVER FOR THE LIQUIDATION OF ITS BUSINESS. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

THE CONTROVERSY IN THIS CASE MAKES IT NECESSARY TO DETERMINE THE
REMEDIES AVAILABLE TO A SHAREHOLDER IN AN INSOLVENT FARM LOAN
ASSOCIATION UPON THE REFUSAL OF A DEMAND FOR THE RETIREMENT OF HIS
SHARES. 

RESPONDENT IS THE OWNER OF A FARM IN KNOX COUNTY, OHIO.  HIS VENDORS
WERE MEMBERS OF THE KNOX NATIONAL FARM LOAN ASSOCIATION, A COOPERATIVE
MEMBERSHIP CORPORATION CHARTERED UNDER FEDERAL LAW.  FEDERAL FARM LOAN
ACT, JULY 7, 1916, C. 245, SEC. 7, 39 STAT. 365; 12 U.S.C. SEC. 711. 
THROUGH THAT ASSOCIATION THEY PROCURED A LOAN FROM THE FEDERAL LAND
BANK OF LOUISVILLE, GIVING A MORTGAGE AS SECURITY.  PART OF THE
PROCEEDS OF THE LOAN (I.E., 5% THEREOF) THEY USED FOR THE PURCHASE OF
STOCK IN THE COOPERATIVE ASSOCIATION, THERE BEING A REQUIREMENT OF THE
STATUTE THAT "ANY PERSON DESIRING TO BORROW ON FARM LAND MORTGAGE
THROUGH A NATIONAL FARM LOAN ASSOCIATION SHALL MAKE APPLICATION FOR
MEMBERSHIP AND SHALL SUBSCRIBE FOR SHARES OF STOCK IN SUCH FARM LOAN
ASSOCIATION TO AN AMOUNT EQUAL TO 5 PER CENTUM OF THE FACE OF THE
DESIRED LOAN, SAID SUBSCRIPTION TO BE PAID IN CASH UPON THE GRANTING OF
THE LOAN."  FEDERAL FARM LOAN ACT, SEC. 8; 12 U.S.C. SEC. 733; CF. SEC.
9; 12 U.S.C. 745.  THE STATUTORY PLAN HAS ALREADY BEEN EXPOUNDED IN
OPINIONS OF THIS COURT.  SMITH V. KANSAS CITY TITLE & TRUST CO., 255
U.S. 180, 203; FEDERAL LAND BANK V. GAINES, 290 U.S. 247; FEDERAL LAND
BANK V. PRIDDY, 295 U.S. 229. 

UPON THE PURCHASE OF THE FARM BY RESPONDENT IN OCTOBER, 1927, HE
ASSUMED THE PAYMENT OF THE MORTGAGE DEBT, SUCCEEDING AT THE SAME TIME
TO THE INTERESTS OF HIS VENDORS IN THE STOCK OF THE ASSOCIATION AND TO
THE ATTENDANT LIABILITIES.  THE SHARES WERE OF THE PAR VALUE OF $265. 
THEY HAD BEEN PLEDGED WITH THE ASSOCIATION, IN ACCORDANCE WITH THE
REQUIREMENTS OF THE STATUTE (SEC. 8; 12 U.S.C. SEC. 733) AS SECURITY
FOR THE LOAN.  THE ASSOCIATION ON ITS PART HAD SUBSCRIBED FOR AN EQUAL
AMOUNT OF THE SHARES OF THE FEDERAL LAND BANK, THE LENDER OF THE MONEY,
LEAVING THE SHARES SO SUBSCRIBED FOR AS A PLEDGE FOR THE SECURITY OF
THE LENDER.  THIS TOO WAS A PROCEDURE CALLED FOR BY THE STATUTE. 
PAYMENTS ON ACCOUNT WITH THE RESULT THAT THE LOAN HAD BEEN REDUCED BY
MARCH, 1933, TO $2122.46, AT WHICH TIME RESPONDENT MADE AN EFFORT TO
CLEAR THE FARM OF THE MORTGAGE AND TO PUT AN END ALSO TO HIS LIABILITY
AS SHAREHOLDER.  TO THAT END HE PAID THE ASSOCIATION $1857.46 TO BE
TRANSMITTED TO THE BANK, INSISTING THAT THE DEFICIENCY ($265) BE
SATISFIED THROUGH THE RETIREMENT OF THE SHARES.  THE BANK ACCEPTED THE
PAYMENT AS ONE UPON ACCOUNT, BUT REFUSED TO DISCHARGE THE MORTGAGE
WITHOUT PAYMENT OF THE BALANCE.  AT THAT TIME, BY CONCESSION, THE
ASSOCIATION WAS INSOLVENT.  ITS CAPITAL WAS IMPAIRED; IT WAS INDEBTED
TO THE BANK UPON OTHER MORTGAGE LOANS, BEING LIABLE AS ENDORSER OR
OTHERWISE WHEN IT BORROWS FOR A MEMBER (FEDERAL LAND BANK V. GAINES,
SUPRA); IT HAD NO MONEYS IN ITS TREASURY WHEREWITH THE SHARES COULD BE
RETIRED. 

THE COURTS TOOK UP THE CONTROVERSY.  RESPONDENT JOINED THE BANK AND
THE ASSOCIATION AS DEFENDANTS IN A SUIT IN THE COURT OF COMMON PLEAS OF
KNOX COUNTY, OHIO.  HE PRAYED FOR JUDGMENT AGAINST THE BANK THAT THE
MORTGAGE BE HELD TO HAVE BEEN CANCELLED AND EXTINGUISHED AND FOR
JUDGMENT AGAINST THE ASSOCIATION THAT THE SHARES OF STOCK BE PAID OFF
AND RETIRED, AND THAT THE BUSINESS OF THE ASSOCIATION BE WOUND UP AND
LIQUIDATED.  FOR ANSWER, THE BANK AND THE ASSOCIATION TOOK THE GROUND
THAT THE PARTIAL PAYMENT MADE WAS INSUFFICIENT TO DISCHARGE THE
MORTGAGE; THAT THERE COULD BE NO RETIREMENT OF THE SHARES WHILE THE
ASSOCIATION WAS INSOLVENT; THAT THE STATE COURT WAS WITHOUT
JURISDICTION TO LIQUIDATE THE BUSINESS OF THE ASSOCIATION, AN
INSTRUMENTALITY OF THE FEDERAL GOVERNMENT, AND THAT JURISDICTION IN
THAT BEHALF RESIDED IN THE FEDERAL GOVERNMENT EXCLUSIVELY. 

TWO DECREES WERE RENDERED BY THE COURT OF COMMON PLEAS.  THE FIRST,
FILED OCTOBER 7, 1935, PROVIDES THAT THE MORTGAGE LIEN SHALL BE
CANCELED BY THE BANK UPON TENDER BY THE PLAINTIFF OF $265 IN ADDITION
TO THE PAYMENT PREVIOUSLY MADE, THE TENDER TO BE KEPT GOOD BY PAYMENT
INTO COURT.  THE SECOND, FILED NOVEMBER 18, 1935, DIRECTS THE FARM LOAN
ASSOCIATION TO RETIRE THE RESPONDENT'S SHARES, AND GIVES HIM JUDGMENT
AGAINST THE ASSOCIATION FOR THE PAR VALUE THEREOF.  IT APPEARING THAT
THE ASSOCIATION WAS UNABLE TO PAY THE JUDGMENT BY REASON OF INSOLVENCY,
A RECEIVER WAS APPOINTED TO TAKE POSSESSION OF THE ASSETS AND LIQUIDATE
THE BUSINESS, THE ASSOCIATION AND ITS OFFICERS BEING REQUIRED
FORTHWITH, UPON THE DEMAND OF THE RECEIVER, TO SURRENDER ANY PROPERTY
IN THEIR POSSESSION OR UNDER THEIR CONTROL.  FROM THE DECREE OF
NOVEMBER 18, THE DEFENDANTS PROSECUTED AN APPEAL TO THE OHIO COURT OF
APPEALS, WHICH AFFIRMED WITH AN OPINION.  A PETITION FOR REVIEW BY THE
SUPREME COURT OF THE STATE WAS SUBMITTED AND DENIED.  WE GRANTED
CERTIORARI TO SET AT REST FAR-REACHING QUESTIONS AS TO THE MEANING AND
ADMINISTRATION OF AN IMPORTANT ACT OF CONGRESS. 

AT THE OUTSET A DOUBT AS TO OUR JURISDICTION CALLS FOR SCRUTINY AND
JUDGMENT.  THE CASE BEING HERE AFTER A DECISION OF A STATE COURT,
JURISDICTION IS NOT GIVEN US UNLESS THE DECREE TO BE REVIEWED IS
FINAL.  JUDICIAL CODE, SEC. 237; 28 U.S.C. SEC. 344.  RESPONDENT HAS
BEEN ADJUDGED ENTITLED TO THE PAYMENT OF A SPECIFIC SUM OF MONEY, BUT
HE IS ALSO TO HAVE A RECEIVER WHO IS TO LIQUIDATE A BUSINESS, THE COURT
RESERVING THE RIGHT TO CONTROL THE CONDUCT OF ITS OFFICER AND TO
RESCIND OR MODIFY ITS ORDER.  DOES THE APPOINTMENT OF A RECEIVER
POSTPONE THE STAGE OF FINALITY UNTIL HIS WORK IS AT AN END? 

THE PRIMARY PURPOSE OF THE SUIT WAS THE RECOVERY OF A JUDGMENT FOR
THE PAR VALUE OF THE SHARES.  ANY OTHER RELIEF PRAYED FOR OR AWARDED
WAS TRIBUTARY TO THAT RECOVERY; IT WAS A FORM OF EQUITABLE EXECUTION TO
MAKE COLLECTION POSSIBLE.  WHEN THE AMOUNT INVESTED IN THE STOCK WAS
ADJUDGED TO CONSTITUTE A DEBT, WHATEVER FOLLOWED IN THE DECREE WAS
AUXILIARY AND MODAL.  THE ASSOCIATION AND ITS OFFICERS WERE NOT
DIRECTED TO ACCOUNT, AND TO SURRENDER WHAT WAS FOUND OWING AT THE CLOSE
OF THE ACCOUNTING.  THEY WERE DIRECTED TO MAKE DELIVERY AND TO MAKE
DELIVERY AT ONCE.  WE THINK THEY WERE SUBJECTED TO A PRESENT OBLIGATION
AS IMMEDIATE AND ABSOLUTE AS IF THE ASSETS WERE TO BE WRESTED FROM THEM
BY EXECUTION DIRECTED TO THE SHERIFF.  WINTHROP IRON CO. V. MEEKER, 109
U.S. 180, 183; ST. LOUIS, I.M. & S.R. CO. V. SOUTHERN EXPRESS CO., 108
U.S. 24, 28, 29; THOMSON V. DEAN, 7 WALL.  342; MCGOURKEY V. TOLEDO &
OHIO CENTRAL RY. CO., 146 U.S. 536; COLLINS V. MILLER, 252 U.S. 364,
371; CHASE V. DRIVER, 92 FED. 780, 785; DES MOINES V. DES MOINES WATER
CO., 230 FED. 570, 573; VICTOR TALKING MACHINE CO. V. GEORGE, 69 F.(2D)
871, 879. 

ACCEPTING JURISDICTION, WE ARE BROUGHT TO A CONSIDERATION OF THE
MERITS. 

A NATIONAL FARM LOAN ASSOCIATION IS A COOPERATIVE ENTERPRISE.  ITS
MEMBERS MUST SUBSCRIBE FOR ITS SHARES TO THE EXTENT OF FIVE PER CENT OF
THE LOAN TO BE PROCURED IN THEIR BEHALF.  FEDERAL FARM LOAN ACT, SEC.
8; 12 U.S.C. SEC. 733.  THE ASSOCIATION IN ITS TURN, UPON THE
PROCUREMENT OF THE LOAN, SUBSCRIBES TO STOCK OF THE LAND BANK TO AN
EQUIVALENT EXTENT.  SECTION 7; 12 U.S.C. SEC. 721.  WITH FEW
EXCEPTIONS, THE ONLY ASSETS WHICH A FARM LOAN ASSOCIATION HAS OR CAN
HAVE ARE THE SHARES WHICH IT TAKES IN THE FEDERAL LAND BANK TO
COUNTERBALANCE THE SHARES OF ITS OWN STOCK TAKEN BY THE BORROWER,
TOGETHER WITH DIVIDENDS DISTRIBUTED BY THE BANK, AND REASONABLE CHARGES
FOR NECESSARY EXPENSES, NOT IN EXCESS OF "1 PER CENTUM OF THE AMOUNT OF
THE LOAN APPLIED FOR."  BYRNE V. FEDERAL LAND BANK, 61 N.D. 265, 277;
237 N.W. 797; CF. SEC. 11; 12 U.S.C. 761, SUBD. 3.  TO ADD TO THE
PROTECTION OF THE BANK AND OTHER CREDITORS, THE SHAREHOLDERS IN THE
ASSOCIATION ARE CHARGEABLE UNDER THE LAW AS IT STOOD AT THE DATE OF
THESE TRANSACTIONS WITH PERSONAL LIABILITY UP TO A DESIGNATED MAXIMUM. 
"SHAREHOLDERS OF EVERY NATIONAL FARM-LOAN ASSOCIATION SHALL BE HELD
INDIVIDUALLY RESPONSIBLE, EQUALLY AND RATABLY, AND NOT ONE FOR ANOTHER,
FOR ALL CONTRACTS, DEBTS, AND ENGAGEMENTS OF SUCH ASSOCIATION TO THE
EXTENT OF THE AMOUNT OF STOCK OWNED BY THEM AT THE PAR VALUE THEREOF,
IN ADDITION TO THE AMOUNT PAID IN AND REPRESENTED BY THEIR SHARES." 
HAS FAILED TO MEET ITS OBLIGATIONS THE FARM CREDIT ADMINISTRATION MAY
DECLARE IT INSOLVENT AND APPOINT A RECEIVER, SUBJECT TO THE PROVISO
THAT THIS SHALL NOT BE DONE UNTIL THE TOTAL DEFAULTS SHALL AMOUNT TO AT
LEAST $150,000 IN THE FEDERAL LAND BANK DISTRICT, UNLESS SUCH
ASSOCIATION SHALL HAVE BEEN IN DEFAULT FOR A PERIOD OF TWO YEARS. 
LIQUIDATION WITHOUT THE CONSENT OF THE SUPERVISING FEDERAL AUTHORITY. 

THE BACKGROUND HAS NOW BEEN INDICATED AGAINST WHICH WE MUST VIEW THE
QUESTION WHETHER A MEMBER OF AN ASSOCIATION WHO HAS PAID HIS LOAN IN
FULL MAY HAVE HIS SHARES RETIRED AND RECOVER THEIR PAR VALUE WHEN THE
ASSOCIATION IS INSOLVENT.  IN SUPPORT OF SUCH A RECOVERY RESPONDENT
RELIES UPON TWO SECTIONS OF THE STATUTE.  BY SEC. 7(12 U.S.C. SEC. 721)
AN ASSOCIATION BORROWING FROM A LAND BANK "SHALL SUBSCRIBE FOR CAPITAL
STOCK OF SAID LAND BANK TO THE AMOUNT OF 5 PER CENTUM OF SUCH LOAN,"
THE STOCK TO BE HELD BY THE BANK AS COLLATERAL SECURITY.  BY THE SAME
OFF AND RETIRED UPON FULL PAYMENT OF THE MORTGAGE LOAN."  IF THAT IS
DONE, "THE NATIONAL FARM LOAN ASSOCIATION SHALL PAY OFF AT PAR AND
RETIRE THE CORRESPONDING SHARES OF ITS STOCK WHICH WERE ISSUED WHEN
SAID LAND BANK STOCK WAS ISSUED."  FN2 COMPLEMENTARY TO THAT SECTION IS
SEC. 8 OF THE ACT (12 U.S.C. SEC. 733), WHICH REGULATES THE RELATION
BETWEEN THE ASSOCIATION AND ITS MEMBERS.  UPON APPLYING FOR A LOAN, THE
APPLICANT "SHALL SUBSCRIBE FOR SHARES OF STOCK IN SUCH FARM LOAN
ASSOCIATION TO AN AMOUNT EQUAL TO 5 PER CENTUM OF THE FACE OF THE
DESIRED LOAN," THE SUBSCRIPTION AT HIS ELECTION TO BE PAID OUT OF THE
PROCEEDS, AND THE STOCK TO BE HELD BY THE ASSOCIATION AS COLLATERAL
SECURITY.  "SAID CAPITAL STOCK SHALL BE PAID OFF AT PAR AND RETIRED
UPON FULL PAYMENT OF SAID LOAN."  IBID. 

THESE PROVISIONS FOR RETIREMENT, DESPITE THEIR APPARENT BREADTH, ARE
NOT TO BE EXTENDED TO A SITUATION SUCH AS THE ONE BEFORE US HERE, AND
THIS FOR TWO REASONS. 

IN THE FIRST PLACE, SEC. 8 OF THE STATUTE, AS ALREADY POINTED OUT, IS
COMPLEMENTARY TO SEC. 7.  WE ARE TO READ THE TWO TOGETHER.  THE
ASSOCIATION IS NOT TO RETIRE ITS OWN SHARES AND REPAY TO THE SUBSCRIBER
THE AMOUNT OF HIS SUBSCRIPTION UNTIL THE LAND BANK HAS RETIRED THE
CORRESPONDING SHARES OF BANK STOCK SUBSCRIBED FOR BY THE ASSOCIATION,
AND HAS PAID BACK TO THE ASSOCIATION THE PAR VALUE THEREOF.  ONLY THUS
CAN THE ASSOCIATION BE PUT IN FUNDS WHEREWITH TO MAKE PAYMENT TO ITS
OWN SUBSCRIBERS.  THE RECORD MAKES IT PLAIN, HOWEVER, THAT THIS
INDISPENSABLE CONDITION HAS NEVER BEEN FULFILLED.  THE BANK REFUSES TO
RETIRE THE SHARES OF BANK STOCK SUBSCRIBED FOR BY THE ASSOCIATION UPON
THE LOAN TO THE RESPONDENT, OR TO REFUND THE SUBSCRIPTIONS WHOLLY OR IN
PART.  THE SCHEME OF THE STATUTE WOULD BE FATALLY DISRUPTED IF THE
ASSOCIATION COULD BE HELD WHEN THE BANK REFUSED TO PAY. 

IN THE SECOND PLACE, NEITHER THE BANK NOR THE ASSOCIATION IS UNDER A
DUTY TO RETIRE STOCK WHEN THE ASSOCIATION IS INSOLVENT, AND THUS TO
GIVE TO THE WITHDRAWING MEMBER THROUGH THE RETURN OF HIS SUBSCRIPTION A
PREFERENCE OVER OTHERS.  THE STATUTE IS MISREAD IF THE SENTENCES
REGULATING WITHDRAWAL ARE TAKEN OUT OF THE SETTING OF A COOPERATIVE
SCHEME AND VIEWED IN ISOLATION.  UNDER THE LAW AS IT STOOD WHEN
RESPONDENT BECAME A MEMBER, THE SHAREHOLDERS WERE SUBJECTED TO A
PERSONAL LIABILITY FOR ALL THE CONTRACTS, DEBTS, AND ENGAGEMENTS OF THE
ASSOCIATION "TO THE EXTENT OF THE AMOUNT OF STOCK OWNED BY THEM AT THE
PAR VALUE THEREOF, IN ADDITION TO THE AMOUNT PAID IN AND REPRESENTED BY
THEIR SHARES."  SEC. 9; 12 U.S.C. 744.  THE ASSOCIATION IS ALREADY IN
DEFAULT IN THE PAYMENT OF ITS MORTGAGE DEBTS, AND ALREADY ITS CAPITAL
IS IMPAIRED.  IN SUCH CIRCUMSTANCES, TO RETURN TO RESPONDENT THE AMOUNT
PAID IN AND REPRESENTED BY HIS SHARES WOULD FRUSTRATE THE STATUTORY
MANDATE THAT THE AMOUNT SO PAID IN SHALL CONSTITUTE A FUND FOR THE
BENEFIT OF CREDITORS TO BE SUPPLEMENTED IN CASE OF NEED BY PERSONAL
LIABILITY FOR AS MUCH MORE AS THE INVESTMENT.  INDEED, ALTOGETHER APART
FROM ANY PLEDGE OF PERSONAL LIABILITY, THE WHOLE STRUCTURE OF THE
ASSOCIATION IS BUILT UPON THE IMPLICATION OF EQUAL RIGHTS AND DUTIES ON
THE PART OF THE COOPERATING MEMBERS.  TO PERMIT A MEMBER TO WITHDRAW
WHEN THE ASSOCIATION IS INSOLVENT WOULD BE TO CAST UPON HIS FELLOW
MEMBERS THE RESPONSIBILITY FOR DEFAULTS FOR WHICH ALL SHOULD ANSWER
RATABLY IN PROPORTION TO THEIR INTERESTS.  TO GUARD AGAINST THAT
INEQUITY THE STATUTE MAKES IT CLEAR THAT SHARES IN THE ASSOCIATION
SHALL NOT BE SUBJECT TO RETIREMENT UNTIL THE CORRESPONDING
SUBSCRIPTIONS TO THE LAND BANK HAVE BEEN CANCELED AND REFUNDED.  WE ARE
NOT REQUIRED TO DETERMINE WHETHER A MEMBER OF AN ASSOCIATION WILL HAVE
RIGHTS ENFORCIBLE AGAINST THE BANK WHEN THE ASSOCIATION HAS BEEN WOUND
UP IN ACCORDANCE WITH THE FEDERAL STATUTE.  CF. SEC. 29; 12 U.S.C. SEC.
966.  NO SUCH QUESTION IS BEFORE US.  ENOUGH FOR PRESENT PURPOSES THAT
IN THE EXISTING SITUATION, WITH INSOLVENCY CONCEDED, THE SHARES OF THE
ASSOCIATION ARE NOT SUBJECT TO WITHDRAWAL. 

THE CONCLUSION THUS ARRIVED AT IS IN ACCORD WITH WELL CONSIDERED
OPINIONS IN NORTH DAKOTA AND ARKANSAS WHERE THE SAME QUESTION WAS
INVOLVED.  BYRNE V. FEDERAL LAND BANK, SUPRA; WESTERN CLAY NATIONAL
FARM LOAN ASSN. V. LILLY, 189 ARK. 1004; 76 S.W.(2D) 55.  IT HAS THE
SUPPORT OF PERSUASIVE ANALOGIES IN THE LAW OF BUILDING AND LOAN
ASSOCIATIONS, WHICH HAVE MUCH IN COMMON WITH FARM LOAN ASSOCIATIONS
INCORPORATED BY ACT OF CONGRESS.  THE SETTLED RULE IS THAT THE SHARES
OF BUILDING AND LOAN ASSOCIATIONS ARE NOT SUBJECT TO RETIREMENT WHEN
THE ASSOCIATION IS INSOLVENT, AND THAT ANY REFUND MADE AT SUCH A TIME
MAY BE RECLAIMED BY A RECEIVER.  TOWLE V. AMERICAN BLDG., L. & I.
SOCIETY, 61 FED. 446; SULLIVAN V. STUCKY, 86 FED. 491, 493; COLTRANE V.
BLAKE, 113 FED. 785; ALDRICH V. GRAY, 147 FED. 453, 456; CHRISTIAN'S
APPEAL, 102 PA. 184; COLIN V. WELLFORD, 102 VA. 581; 46 S.E. 780; CF.
FIDELITY SAVINGS & LOAN ASSN. V. BURNET, 62 APP. D.C. 131; 65 F.(2D)
477, 479, 481. 

IN HOLDING THAT A JUDGMENT FOR THE PAR VALUE OF THE SHARES IS
INCONSISTENT WITH THE FEDERAL STATUTE AND IMPLIEDLY FORBIDDEN, WE CUT
THE GROUND AWAY FROM THE AUXILIARY RECEIVERSHIP, WHICH MUST FALL WITH
THE JUDGMENT IT WAS INTENDED TO ENFORCE.  TO THIS WE ADD, HOWEVER, THAT
A NATIONAL FARM LOAN ASSOCIATION IS AN INSTRUMENTALITY OF THE FEDERAL
GOVERNMENT; THAT THE TIME AND MANNER OF LIQUIDATION ARE GOVERNED BY THE
FEDERAL STATUTE; AND THAT JURISDICTION DOES NOT RESIDE IN THE TRIBUNALS
OF A STATE TO WIND UP THE BUSINESS OF THIS GOVERNMENTAL AGENCY EITHER
BY A RECEIVERSHIP OR OTHERWISE.  12 U.S.C. SECS. 931, 961; FEDERAL LAND
BANK V. PRIDDY, SUPRA, PP. 231, 234; COOK COUNTY NATIONAL BANK V.
UNITED STATES, 107 U.S. 445, 448; EASTON V. IOWA, 188 U.S. 220, 233;
JENNINGS V. U.S.F. & G. CO., 294 U.S. 216, 226; BRUSSELBACK V. CHICAGO
JOINT STOCK LAND BANK, 69 F.(2D) 598; PARTRIDGE V. ST. LOUIS JOINT
STOCK LAND BANK, 76 F.(2D) 237; BOYD V. SCHNEIDER, 131 FED. 223, 227. 

WHETHER THE RESPONDENT MAY VOTE UPON HIS STOCK, AFTER HIS MORTGAGE
HAS BEEN PAID IN FULL, UNTIL THE SHARES HAVE BEEN REDEEMED, AND WHETHER
HE HAS A REMEDY TO COMPEL THE FARM CREDIT ADMINISTRATION TO LIQUIDATE
THE BUSINESS PROMPTLY, ARE QUESTIONS THAT HAVE BEEN CONSIDERED IN THE
BRIEFS, BUT THAT DO NOT CALL FOR ANSWER UPON THE RECORD NOW BEFORE US. 

THE DECREE SHOULD BE REVERSED AND THE CAUSE REMANDED TO THE COURT OF
APPEALS OF THE STATE OF OHIO FOR FURTHER PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.  REVERSED. 

FN1  THE LIABILITY HAS BEEN CHANGED IN RESPECT OF CONTRACTS, DEBTS OR
ENGAGEMENTS ENTERED INTO AFTER JUNE 16, 1933, WITHOUT AFFECTING
LIABILITIES INCURRED BEFORE THAT TIME.  ACT OF JUNE 16, 1933, C. 98,
SEC. 72, 48 STAT. 271; 12 U.S.C. SEC. 744A. 

FN2  THE FOLLOWING IS THE TEXT OF THE SECTION AS EMBODIED IN SEC. 721
OF THE UNITED STATES CODE: "WHENEVER ANY NATIONAL FARM LOAN ASSOCIATION
SHALL DESIRE TO SECURE FOR ANY MEMBER A LOAN ON FIRST MORTGAGE FROM THE
FEDERAL LAND BANK OF ITS DISTRICT IT SHALL SUBSCRIBE FOR CAPITAL STOCK
OF SAID LAND BANK TO THE AMOUNT OF 5 PER CENTUM OF SUCH LOAN, SUCH
SUBSCRIPTION TO BE PAID IN CASH UPON THE GRANTING OF THE LOAN BY SAID
LAND BANK.  SUCH CAPITAL STOCK SHALL BE HELD BY SAID LAND BANK AS
COLLATERAL SECURITY FOR THE PAYMENT OF SAID LOAN, BUT SAID ASSOCIATION
SHALL BE PAID ANY DIVIDENDS ACCRUING AND PAYABLE ON SAID CAPITAL STOCK
WHILE IT IS OUTSTANDING.  SUCH STOCK MAY, IN THE DISCRETION OF THE
DIRECTORS, AND WITH THE APPROVAL OF THE FARM CREDIT ADMINISTRATION, BE
PAID OFF AT PAR AND RETIRED, AND IT SHALL BE SO PAID OFF AND RETIRED
UPON FULL PAYMENT OF THE MORTGAGE LOAN.  IN SUCH CASE THE NATIONAL FARM
LOAN ASSOCIATION SHALL PAY OFF AT PAR AND RETIRE THE CORRESPONDING
SHARES OF ITS STOCK WHICH WERE ISSUED WHEN SAID LAND BANK STOCK WAS
ISSUED."  (12 U.S.C. SEC. 721.) 
..END :














AMER. LIFE INS. CO. V. STEWART, 300 U.S. 203 


NO. 440.  ARGUED JANUARY 15, 1937.  - DECIDED FEBRUARY 1, 1937.  - 80
F.(2D) 600 - 85 ID. 791, REVERSED. 


1.  FRAUD IN THE PROCUREMENT OF INSURANCE IS PROVABLE AS A DEFENSE IN
AN ACTION AT LAW UPON THE POLICY.  P. 212. 

2.  A "CONTEST," WITHIN THE PURVIEW OF A PROVISION OF A LIFE
INSURANCE POLICY THAT IT SHALL BE INCONTESTABLE AFTER A PERIOD DEFINED,
HAS GENERALLY BEEN HELD TO MEAN A PRESENT CONTEST IN A COURT, NOT A
NOTICE OF REPUDIATION OR OF A CONTEST TO BE WAGED THEREAFTER.  P. 212. 

3.  NO ACTION AT LAW HAVING BEEN BROUGHT ON THE POLICY, AN INSURER
WHOSE ATTACK UPON THE GROUND OF FRAUD IS ENDANGERED BY THE RUNNING OF
THE TIME LIMITED BY THE POLICY FOR CONTEST MAY SUE IN EQUITY FOR
CANCELATION.  P. 212. 

IN THE PRESENT CASES THE PERIOD ALLOWED FOR CONTEST WAS TWO YEARS
FROM THE DATE OF THE TWO POLICIES.  THE INSURANCE COMPANY'S SUITS FOR
CANCELATION WERE BROUGHT WHEN SIX MONTHS AND TEN DAYS OF THAT PERIOD
HAD PASSED. 

4.  WHERE EQUITY CAN GIVE RELIEF, PLAINTIFF OUGHT NOT TO BE COMPELLED
TO SPECULATE UPON HIS CHANCE OF OBTAINING RELIEF AT LAW, OR TO INCUR
THE DANGER THAT WITNESSES MAY DISAPPEAR AND EVIDENCE BE LOST IF HE
WAITS TO BE SUED BY HIS ANTAGONIST.  P. 213. 

5.  A REMEDY AT LAW DOES NOT EXCLUDE ONE IN EQUITY UNLESS IT IS
EQUALLY PROMPT AND CERTAIN AND IN OTHER WAYS EFFICIENT.  P. 214. 

6.  A REMEDY AT LAW IS NOT ADEQUATE IF ITS ADEQUACY DEPENDS UPON THE
WILL OF THE OPPOSING PARTY.  P. 214. 

7.  EQUITABLE JURISDICTION EXISTING AT THE FILING OF THE BILL IS NOT
DESTROYED BY THE SUBSEQUENT AVAILABILITY OF AN ADEQUATE LEGAL REMEDY. 
P. 215. 

IN THESE CASES THE EQUITY JURISDICTION WHICH ATTACHED ON THE FILING
OF THE BILLS BY THE INSURANCE COMPANY, WAS NOT LOST WHEN ACTIONS ON THE
POLICIES WERE BROUGHT IN THE SAME COURT; THOUGH THE COURT, IF
REQUESTED, MIGHT HAVE TRIED THE LAW SUITS FIRST. 

AMERICAN LIFE INSURANCE CO. V. REESE SMITH STEWART ET AL.* 

*TOGETHER WITH NO. 441, AMERICAN LIFE INSURANCE CO. V. ORA INEZ
STEWART ET AL. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH
CIRCUIT. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. 

CERTIORARI, 299 U.S. 536, TO REVIEW THE REVERSAL OF DECREES FOR THE
CANCELATION AND SURRENDER OF POLICIES OF LIFE INSURANCE. 

CANCELLATION OF INSTRUMENTS PROCURED BY FRAUD IS A WELL-SETTLED FIELD
OF EQUITY JURISDICTION.  THE INCONTESTABLE CLAUSE REQUIRED CONTEST IN
COURT TO PRESERVE PETITIONER'S RIGHTS, AND NO LAW ACTION WAS PENDING AT
THE TIME THE BILLS WERE FILED IN WHICH CONTEST COULD BE MADE BY
ANSWER.  THESE FACTS DEMONSTRATE THAT PETITIONER DID NOT HAVE ANY
REMEDY AT LAW, ADEQUATE OR OTHERWISE, AND PRESENTED A "SPECIAL
CIRCUMSTANCE" AUTHORIZING PETITIONER TO BRING ITS BILLS TO CANCEL WHEN
AND AS THE BILLS WERE FILED.  MUTUAL LIFE INS. CO. V. HURNI PACKING
CO., 263 U.S. 167, 174, 176; STORY, EQ. JURIS.  (13TH ED.), SEC. 995; 2
BLACK, RESCISSION & CANCELLATION, SEC. 655, P. 1497; 9 C.J. 1160. 

WHEN A COURT OF EQUITY PROPERLY ACQUIRES JURISDICTION IT WILL RETAIN
IT UNTIL COMPLETE JUSTICE IS DONE BETWEEN THE PARTIES.  MCGOWAN V.
PARISH, 237 U.S. 285, 296; ALEXANDER V. HILLMAN, 296 U.S. 222, 242; 21
C.J. 134, SEC. 117. 

WHETHER AN EQUITY COURT HAS JURISDICTION DEPENDS ON THE FACTS AND
CIRCUMSTANCES EXISTING AT THE TIME THE BILL IS FILED AND NOT ON THOSE
THAT MAY SUBSEQUENTLY DEVELOP.  A REMEDY AT LAW CANNOT BE ADEQUATE IF
ITS ADEQUACY DEPENDS UPON THE WILL OF THE OPPOSING PARTY.  BOYCE'S
EXECUTORS V. GRUNDY, 3 PET. 210, 215; SULLIVAN V. PORTLAND R. CO., 94
U.S. 806, 811; DAWSON V. KENTUCKY DISTILLERIES CO., 255 U.S. 288, 296;
BUSCH V. JONES, 184 U.S. 598, 600; CLARK V. WOOSTER, 119 U.S. 322, 325;
BANK OF KENTUCKY V. STONE, 88 FED. 383, 391. 

THE CASE IS CONTROLLED BY THE RULE ANNOUNCED BY THIS COURT IN DAWSON
V. KENTUCKY DISTILLERIES CO., 255 U.S. 288, 296, THAT EQUITABLE
JURISDICTION IS NOT "LOST BECAUSE SINCE THE FILING OF THE BILL AN
ADEQUATE LEGAL REMEDY MAY HAVE BECOME AVAILABLE."  SEE ALSO BUSCH V.
JONES, 184 U.S. 598, 600. 

THE FOREGOING POINTS HAVE BEEN THE SUBJECT OF DISCUSSION AND DECISION
IN POLICY CANCELLATION CASES, SIMILAR TO THE ONES AT BAR, IN OTHER
CIRCUIT COURTS OF APPEALS, AND SUCH DECISIONS DECLARE THE PRINCIPLES
ABOVE STATED.  THIS DECISION OF THE CIRCUIT COURT OF APPEALS FOR THE
TENTH CIRCUIT IS IN DIRECT CONFLICT WITH DECISIONS IN OTHER CIRCUITS IN
LIKE CASES.  (FOURTH CIRCUIT) JEFFERSON STANDARD LIFE INS. CO. V.
KEETON, 292 FED. 53, 54-56; JONES V. RELIANCE LIFE INS. CO., 11 F.(2D)
69, 70; BROWN V. PACIFIC MUTUAL LIFE INS. CO., 62 F.(2D) 711, 712; NEW
YORK LIFE INS. CO. V. TRUESDALE, 79 F.(2D) 481, 485; PACIFIC MUTUAL
LIFE INS. CO. V. PARKER, 71 F.(2D) 872, 874.  (FIFTH CIRCUIT) JEFFERSON
STANDARD LIFE INS. CO. V. MCINTYRE, 294 FED. 886, 888.  (SIXTH CIRCUIT)
NEW YORK LIFE INS. CO. V. SEYMOUR, 45 F.(2D) 47, 48, 49; ROSE V. MUTUAL
LIFE INS. CO., 19 F.(2D) 280, 282.  (SEVENTH CIRCUIT) HARNISCHFEGER
SALES CORP. V. NATIONAL LIFE INS. CO., 72 F.(2D) 921, 922, 923. 
(EIGHTH CIRCUIT) PEAKE V. LINCOLN NATIONAL LIFE INS. CO., 15 F.(2D)
303, 305, 306; LINCOLN NATIONAL LIFE INS. CO. V. HAMMER, 41 F.(2D) 12,
17.  (NINTH CIRCUIT) MASSACHUSETTS BONDING & INS. CO. V. ANDEREGG, 83
F.(2D) 622, 624, CERT. DEN., 299 U.S. 567.  IT APPEARS ALSO TO BE IN
CONFLICT WITH ENELOW V. NEW YORK LIFE INS. CO., 293 U.S. 379, 384, UPON
WHICH IT PROFESSES TO BE BASED. 

MAINTAINED IF PLAINTIFF HAS AN ADEQUATE REMEDY AT LAW, MAY BE WAIVED BY
DEFENDANT, AND WAS WAIVED IN THESE CASES BOTH BY PLEADING TO THE MERITS
ONLY, BY STIPULATING IN WRITING FOR TRIAL OF THE EQUITY SUITS IN
ADVANCE OF THE LAW ACTIONS, AND BY PROCEEDING TO TRIAL WITHOUT
OBJECTING TO EQUITY JURISDICTION.  AMERICAN MILLS CO. V. AMERICAN
SURETY CO., 260 U.S. 360, 363; DUIGNAN V. UNITED STATES, 274 U.S. 195,
199; TWIST V. PRAIRIE OIL CO., 274 U.S. 684, 689-691; PEREGO V. DODGE,
163 U.S. 160, 164; REYNES V. DUMONT, 130 U.S. 354, 395; KILBOURN V.
SUNDERLAND, 130 U.S. 505, 514; TYLER V. SAVAGE, 143 U.S. 79, 96-97;
SOUTHERN PACIFIC R. CO. V. UNITED STATES, 200 U.S. 341, 349; BROWN V.
LAKE SUPERIOR IRON CO., 134 U.S. 530, 536; SINGER SEWING MACHINE CO. V.
BENEDICT, 229 U.S. 481, 484; LYONS MILLING CO. V. GOFFE & CARKENER, 46
F.(2D) 241, 245; SANDERS V. RIVERSIDE, 118 FED. 720, 722. 

THE DECREES CANCELLING THE POLICIES WERE JUSTIFIED AND SHOULD BE
AFFIRMED.  NEW YORK LIFE INS. CO. V. GRIFFITH, 35 F.(2D) 945, 946. 

THE CLAIMS WERE PURE LEGAL CLAIMS AND THE DEFENSES LEGAL DEFENSES. 
ENELOW V. NEW YORK LIFE INS. CO., 293 U.S. 379; ADAMOS V. NEW YORK LIFE
INS. CO., 293 U.S. 386.  THE BENEFICIARIES WERE GUARANTEED A RIGHT TO
TRIAL BY JURY.  CONST., SEVENTH AMENDMENT; JUDICIARY ACT, C. 20, SEC.
16, 1 STAT. 82; JUD.  CODE, SEC. 267; 28 U.S.C. 384. 

THE RIGHT OF THE COURT OF EQUITY TO INTERCEDE WAS ENTIRELY DEPENDENT
UPON THE POSSIBLE OR THREATENED LOSS OF COMPLAINANT'S DEFENSE, IF A
CONTROVERSY WAS NOT INSTITUTED WITHIN THE PERIOD ALLOWED.  NECESSARILY,
THE RIGHT WAS DEPENDENT ENTIRELY UPON THE PROBABILITY OF LOSING IT.
SEE MUTUAL LIFE INS. CO. V. HURNI PACKING CO., 263 U.S. 167, AND CASES
CITED IN ENELOW V. NEW YORK LIFE INS. CO., 293 U.S. 379, 384. 

UNDER THE ALLEGATIONS, WE HAVE MERELY AN ABSTRACT QUESTION; AT MOST A
MERE APPREHENSION OR FEAR OF A REMOTE INJURY.  NO ALLEGATIONS ARE MADE
OR FACTS STATED TO JUSTIFY EVEN AN INFERENCE THAT THE BENEFICIARIES
WOULD NOT COMMENCE ACTIONS WITHIN THE PERIOD. 

THIS CASE IS OF THAT TYPE OF EQUITY JURISDICTION WHICH IS TO PREVENT
INJURY AS DISTINGUISHED FROM THE TYPES WHICH DETERMINE CONTROVERSIES
AND ADJUDICATE RIGHTS DEPENDENT UPON FACTS WHICH HAVE OCCURRED.  IT IS
A FIXED PRINCIPLE THAT THE OCCURRENCE OR CONTINUANCE OF THE INJURY MUST
BE PROBABLE AND IMMINENT.  CONNECTICUT V. MASSACHUSETTS, 282 U.S. 660;
NEW YORK V. ILLINOIS, 274 U.S. 488; NEW JERSEY V. SARGENT, 269 U.S.
328; TEXAS V. INTERSTATE COMMERCE COMM'N, 258 U.S. 158; MARYE V.
PARSONS, 114 U.S. 325; FOSTER V. MANSFIELD C. & L.M.R. CO., 146 U.S.
88; STEARNS V. WOOD, 236 U.S. 75. 

PETITIONER, HAVING A PLAIN, ADEQUATE, AND COMPLETE REMEDY AT LAW, WAS
NOT ENTITLED TO A STAY IN EQUITY.  SMITH V. AMERICAN NATIONAL BANK, 89
FED. 832, 838; GRIESA V. MUTUAL LIFE INS. CO., 169 FED. 509, CERT.
DEN., 215 U.S. 600. 

THE INSURANCE COMPANY HAS SUBMITTED TO THE JURISDICTION OF THE COURT
IN THE LAW ACTIONS BY FILING MOTIONS TO STAY PROCEEDINGS.  MOREOVER,
THE FOLLOWING WELL-CONSIDERED CASES HOLD THAT THE LEGAL REMEDY OF THE
INSURANCE COMPANY BECAME PLAIN, ADEQUATE AND COMPLETE NOTWITHSTANDING
THE PENDENCY OF THE EQUITY SUITS, UPON THE FILING OF THE LAW ACTIONS
WITHIN THE CONTEST PERIOD BY THE RESPONDENTS.  GREAT SOUTHERN LIFE INS.
CO. V. BURWELL, 12 F.(2D) 244, CERT. DEN., 271 U.S. 683; NEW YORK LIFE
INS. CO. V. MCCARTHY, 22 F.(2D) 241; NEW YORK LIFE INS. CO. V.
THOMPSON, 78 F.(2D) 946; ROHRBACH V. MUTUAL LIFE INS. CO., 82 F.(2D)
291.  AND SEE GRIESA V. MUTUAL LIFE INS. CO., 169 FED. 509, CERT. DEN.,
215 U.S. 600; ENELOW V. NEW YORK LIFE INS. CO., 293 U.S. 379; ADAMOS V.
NEW YORK LIFE INS. CO., 293 U.S. 386. 

THE MOTIONS TO DISMISS WERE CONSIDERED AS LEVELED AT BOTH THE
ORIGINAL AND THE SUPPLEMENTAL BILLS HEREIN, SINCE THE APPLICATION FOR
INJUNCTION AGAINST THE PROSECUTION OF THE LAW ACTIONS, WHICH CAME ON
FOR HEARING AT THE SAME TIME, IS FOUND ONLY IN THE SUPPLEMENTAL BILLS. 
THE SUPPLEMENTAL BILLS RECITE THAT THE LAW ACTIONS HAVE BEEN FILED BY
THE RESPONDENTS.  THEREFORE, THE PLEADINGS OF THE PETITIONER SHOW UPON
THEIR FACE THAT PETITIONER HAD A PLAIN, ADEQUATE AND COMPLETE REMEDY AT
LAW WITHIN THE CONTESTABLE PERIOD, AT THE TIME THE MOTIONS TO DISMISS
WERE CONSIDERED.  UNDER SUCH CIRCUMSTANCES IT IS HELD THAT THE ACTIONS
TO CANCEL THE POLICIES FOR FRAUD WILL NOT BE ENTERTAINED IN A COURT OF
EQUITY.  CABLE V. UNITED STATES LIFE INS. CO., 191 U.S. 288; PHOENIX
MUTUAL LIFE INS. CO. V. BAILEY, 13 WALL.  616; DI GIOVANNI V. CAMDEN
FIRE INS. CO., 296 U.S. 64; NICHOLS V. PACIFIC MUTUAL LIFE INS. CO., 84
F.(2D) 896; GRIESA V. MUTUAL LIFE INS. CO., 169 FED. 509, CERT. DEN.,
215 U.S. 600; RIGGS V. UNION LIFE INS. CO., 129 FED. 207; ROHRBACH V.
MUTUAL LIFE INS. CO., 82 F.(2D) 291; NEW YORK LIFE INS. CO. V.
THOMPSON, 78 F.(2D) 946. 

THE RECORDS SHOW THE ACTIONS AT LAW UPON THE POLICIES WERE AT ISSUE
TWO MONTHS AND TWENTY-THREE DAYS BEFORE THE TRIAL OF THESE EQUITY SUITS
IN THE SAME COURT, AND FOUR MONTHS AND THIRTEEN DAYS BEFORE THE
EXPIRATION OF THE CONTEST PERIOD.  THE INSURANCE COMPANY HAD THUS
INSTITUTED A CONTEST OF THE POLICIES IN ACTIONS AT LAW.  A DISMISSAL OF
THE LAW ACTIONS THEREAFTER WOULD NOT DEPRIVE THE COMPANY OF THE BENEFIT
OF THAT CONTEST.  CABLE V. UNITED STATES LIFE INS. CO., 191 U.S. 288,
309; NEW YORK LIFE INS. CO. V. MILLER, 73 F.(2D) 350; NEW YORK LIFE
INS. CO. V. HURT, 35 F.(2D) 92, 96; THOMAS V. LIFE INSURANCE CO., 135
KAN. 381. 

MOREOVER, THE INSURANCE COMPANY AFTER THE PENDENCY OF THE LAW ACTION
COULD PLEAD AS A COUNTERCLAIM OR CROSS-PETITION THE VERY SAME CAUSE OF
ACTION WHICH IS SET OUT IN THE BILL OF COMPLAINT TO CANCEL THE POLICY
FOR FRAUD.  BY THE KANSAS CODE OF PROCEDURE, THE DISMISSAL OF AN ACTION
BY THE PLAINTIFF DOES NOT DISMISS ANY COUNTERCLAIM PLEADED BY THE
DEFENDANT.  SEE NORTHERN LIFE INS. CO. V. WALKER, 123 WASH. 203. 

RESPONDENTS DID NOT WAIVE THE RIGHT TO TRIAL BY JURY. 

JURISDICTION IN EQUITY UPON THE GROUND THAT THE COMPLAINANT IS
WITHOUT AN ADEQUATE REMEDY AT LAW, CANNOT BE CONFERRED BY CONSENT OR
WAIVER.  JUD.  CODE, SEC. 267; 28 U.S.C. 384. 

WHENEVER AT ANY STAGE IT APPEARS THAT THERE IS A PLAIN, ADEQUATE AND
COMPLETE REMEDY AT LAW, THE COURT MUST DISMISS THE SUIT AND LEAVE THE
PARTIES TO THEIR LEGAL REMEDY, EVEN THOUGH THE POINT IS NOT RAISED BY
THE PLEADINGS NOR SUGGESTED BY COUNSEL.  HIPP V. BABIN, 19 HOW.  279;
OELRICHS V. WILLIAMS, 15 WALL.  211; LEWIS V. COCKS, 23 WALL.  466;
BOISE WATER CO. V. BOISE CITY, 213 U.S. 276; PHOENIX LIFE INS. CO. V.
BAILEY, 14 WALL.  616; SINGER SEWING MACHINE CO. V. BENEDICT, 229 U.S.
481. 

TRIAL BY JURY IS A VALUABLE RIGHT; EVERY REASONABLE ASSUMPTION SHOULD
BE INDULGED AGAINST ITS WAIVER.  HODGES V. EASTON, 106 U.S. 408; BAYLIS
V. TRAVELERS INS. CO., 113 U.S. 316. 

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT. 

IN THESE CASES SUITS HAVE BEEN BROUGHT FOR THE CANCELLATION OF
POLICIES OF LIFE INSURANCE ON THE GROUND OF FRAUD IN THEIR PROCUREMENT,
THE POLICIES PROVIDING THAT THEY SHALL CEASE TO BE CONTESTABLE UNLESS
CONTEST SHALL BE BEGUN WITHIN A STATED TIME.  THE QUESTION TO BE
DETERMINED IS THE EXISTENCE, IN THE CIRCUMSTANCES, OF A REMEDY IN
EQUITY. 

ON FEBRUARY 23, 1932, PETITIONER, A COLORADO CORPORATION, ISSUED TO
REESE SMITH STEWART, A CITIZEN OF KANSAS, TWO POLICIES OF LIFE
INSURANCE, EACH FOR $5,000, ONE PAYABLE TO HIS SON, WHO IS A RESPONDENT
IN NO. 440, AND THE OTHER PAYABLE TO HIS WIFE, WHO IS A RESPONDENT IN
NO. 441.  EACH POLICY CONTAINS A PROVISION THAT IT "SHALL BE
INCONTESTABLE, EXCEPT FOR NON-PAYMENT OF THE PREMIUM, AFTER ONE YEAR
FROM ITS DATE OF ISSUE IF THE INSURED BE THEN LIVING, OTHERWISE AFTER
TWO YEARS FROM ITS DATE OF ISSUE."  ON MAY 31, 1932, THREE MONTHS AND
EIGHT DAYS AFTER OBTAINING THE INSURANCE, THE INSURED DIED, HAVING MADE
IN HIS APPLICATION FRAUDULENT MISSTATEMENTS, OR SO THE INSURER CHARGES,
AS TO HIS HEALTH AND OTHER MATTERS MATERIAL TO THE RISK.  ON SEPTEMBER
3, 1932, THE INSURER BROUGHT SUIT TO CANCEL THE INSURANCE, A SEPARATE
SUIT FOR EACH POLICY, THE EXECUTRIX OF THE INSURED BEING JOINED AS A
DEFENDANT WITH THE RESPECTIVE BENEFICIARIES.  THE COMPLAINT IN EACH
SUIT REFERS IN A PARAGRAPH NUMBERED 8 TO THE PROVISION THAT THE POLICY
SHALL BE INCONTESTABLE AFTER THE LAPSE OF TWO YEARS.  IN THE SAME
PARAGRAPH IT STATES IN SUBSTANCE THAT THE BENEFICIARY MAY DELAY THE
COMMENCEMENT OF THE ACTION AT LAW TILL THE TIME FOR CONTEST HAS GONE
BY, OR, BEGINNING SUCH AN ACTION WITHIN THE PERIOD, MAY AFTERWARDS
DISMISS IT AND THEN BEGIN ANEW.  THE INSURER ASKS THE COURT TO ACT
WHILE YET THE BARRIER IS DOWN. 

ON SEPTEMBER 26, 1932, THE DEFENDANTS MOVED IN EACH SUIT TO DISMISS
THE BILL FOR WANT OF EQUITY.  ON OCTOBER 11, 1932, THE BENEFICIARIES
BEGAN ACTIONS AT LAW IN THE SAME COURT TO RECOVER THE INSURANCE.  ON
OCTOBER 29, THE INSURER FILED ITS SUPPLEMENTAL BILLS SETTING FORTH THE
PENDENCY OF THE ACTIONS AT LAW, AND PRAYING AN INJUNCTION AGAINST THEIR
CONTINUED PROSECUTION.  ON JULY 28, 1933, THE DISTRICT COURT DENIED THE
MOTIONS TO DISMISS, WITHOUT PASSING, HOWEVER, ON MOTIONS MADE BY THE
INSURER TO ENJOIN THE ACTIONS AT LAW.  ON AUGUST 29, A STIPULATION WAS
SIGNED AND FILED IN EACH CASE THAT "THE SUIT IN EQUITY SHALL BE TRIED"
BY THE COURT "BEFORE SAID LAW ACTION IS TRIED, PROVIDED, HOWEVER, THAT
THE ISSUES IN SAID LAW ACTION SHALL IN THE MEANTIME BE MADE UP IN ORDER
THAT SAID LAW ISSUES THUS JOINED SHALL STAND READY FOR TRIAL, WITH THE
UNDERSTANDING THAT SAID LAW ISSUES, IF ANY REMAIN FOR TRIAL, SHALL BE
TRIED AS SOON AFTER THE TRIAL OF THE SUIT IN EQUITY AS THE COURT SHALL
DETERMINE," AND THIS STIPULATION WAS APPROVED BY THE COURT AND AN ORDER
MADE ACCORDINGLY.  ON OCTOBER 10, 1933, THE DEFENDANTS IN EACH OF THE
EQUITY SUITS FILED THEIR ANSWERS TO THE BILLS, DENYING THE FRAUD,
ADMITTING THE MAKING OF THE "INCONTESTABILITY CLAUSE" AS STATED IN
PARAGRAPH 8, AND AS TO THE OTHER ALLEGATIONS OF THAT PARAGRAPH DENYING
ANY KNOWLEDGE OR INFORMATION SUFFICIENT TO FORM A BELIEF.  THE ANSWERS
DID NOT STATE THAT THE REMEDY AT LAW WAS ADEQUATE.    UPON THE TRIAL OF
THE SUITS IN EQUITY, THE DISTRICT COURT FOUND THE FRAUDULENT
REPRESENTATIONS CHARGED IN THE COMPLAINTS, AND DECREED THE CANCELLATION
AND SURRENDER OF THE POLICIES.  THERE WAS AN APPEAL TO THE COURT OF
APPEALS FOR THE TENTH CIRCUIT, WHERE THE DECREE WAS REVERSED, ONE JUDGE
DISSENTING, THE COURT HOLDING THAT THE INSURER HAD AN ADEQUATE REMEDY
AT LAW.  80 F.(2D) 600; 85 F.(2D) 791.  WE GRANTED CERTIORARI TO SETTLE
AN IMPORTANT QUESTION, AND ONE LIKELY TO RECUR, AS TO THE SCOPE OF
EQUITABLE REMEDIES. 

NO DOUBT IT IS THE RULE, AND ONE RECENTLY APPLIED IN DECISIONS OF
THIS COURT, THAT FRAUD IN THE PROCUREMENT OF INSURANCE IS PROVABLE AS A
DEFENSE IN AN ACTION AT LAW UPON THE POLICY, RESORT TO EQUITY BEING
UNNECESSARY TO RENDER THAT DEFENSE AVAILABLE.  ENELOW V. NEW YORK LIFE
INS. CO., 293 U.S. 379, 385; ADAMOS V. NEW YORK LIFE INS. CO., 293 U.S.
386; INSURANCE CO. V. BAILEY, 13 WALL.  616; CABLE V. UNITED STATES
LIFE INS. CO., 191 U.S. 288, 306.  THAT BEING SO, AN INSURER, THOUGH
THE VICTIM OF A FRAUD, MAY COMMONLY STAND ASIDE AND AWAIT THE HOUR OF
ATTACK.  BUT THIS ATTITUDE OF ALOOFNESS MAY AT TIMES BE FRAUGHT WITH
PERIL.  IF THE POLICY IS TO BECOME INCONTESTABLE SOON AFTER THE DEATH
OF THE INSURED, THE INSURER BECOMES HELPLESS IF HE MUST WAIT FOR A MOVE
BY SOME ONE ELSE, WHO MAY PREFER TO REMAIN MOTIONLESS TILL THE TIME FOR
CONTEST HAS GONE BY.  A "CONTEST" WITHIN THE PURVIEW OF SUCH A CONTRACT
HAS GENERALLY BEEN HELD TO MEAN A PRESENT CONTEST IN A COURT, NOT A
NOTICE OF REPUDIATION OR OF A CONTEST TO BE WAGED THEREAFTER.  SEE,
E.G., KILLIAN V. METROPOLITAN LIFE INS. CO., 251 N.Y. 44, 48; 166 N.E.
798; NEW YORK LIFE INS. CO. V. HURT, 35 F.(2D) 92, 95; HARNISCHFEGER
SALES CORP. V. NATIONAL LIFE INS. CO., 72 F.(2D) 921, 922.  ACCORDINGLY
AN INSURER, WHO MIGHT OTHERWISE BE CONDEMNED TO LOSS THROUGH THE MERE
INACTION OF AN ADVERSARY, MAY ASSUME THE OFFENSIVE BY GOING INTO EQUITY
AND THERE PRAYING CANCELLATION.  THIS EXCEPTION TO THE GENERAL RULE HAS
BEEN ALLOWED BY THE LOWER FEDERAL COURTS WITH IMPRESSIVE UNIFORMITY. 
FN1  IT HAS HAD ACCEPTANCE IN THE STATE COURTS.  FN2  IT WAS RECOGNIZED
ONLY RECENTLY IN AN OPINION OF THIS COURT, THOUGH THE FACTS WERE NOT
SUCH AS TO CALL FOR ITS ALLOWANCE.  ENELOW V. NEW YORK LIFE INS. CO.,
SUPRA, AT P. 384.  FN3 

THE ARGUMENT IS MADE, HOWEVER, THAT THE INSURER, EVEN IF PRIVILEGED
TO SUE IN EQUITY, SHOULD NOT HAVE GONE THERE QUITE SO QUICKLY.  SIX
MONTHS AND TEN DAYS HAD GONE BY SINCE THE POLICIES WERE ISSUED.  THERE
WOULD BE NEARLY A YEAR AND A HALF MORE BEFORE THE BAR WOULD BECOME
ABSOLUTE.  BUT HOW LONG WAS THE INSURER TO WAIT BEFORE ASSUMING THE
OFFENSIVE, AND HOW WAS IT TO KNOW WHERE THE BENEFICIARIES WOULD BE IF
IT OMITTED TO STRIKE SWIFTLY?  OFTEN A FAMILY BREAKS UP AND CHANGES ITS
ABODE AFTER THE GOING OF ITS HEAD.  THE LIKE MIGHT HAPPEN TO THIS
FAMILY.  TO SAY THAT THE INSURER SHALL KEEP WATCH OF THE COMING AND
GOING OF THE SURVIVORS IS TO CHARGE IT WITH A HEAVY BURDEN.  THE TASK
WOULD BE HARD ENOUGH IF BENEFICIARIES WERE ALWAYS HONEST.  THE
POSSIBILITY OF BAD FAITH, PERHAPS CONCEALED AND HARDLY PROVABLE,
ACCENTUATES THE DIFFICULTY.  THERE ARE STATEMENTS BY JUDGES OF REPUTE
WHICH SUGGEST A POSSIBILITY THAT THE CONTEST BARRIER MAY STAND THOUGH
THE HOLDER OF THE POLICY HAS GONE TO FOREIGN LANDS.  NEW YORK LIFE INS.
CO. V. PANAGIOTOPOULOS, 80 F.(2D) 136, 139.  THERE ARE STATEMENTS THAT
IT WILL STAND THOUGH AN ACTION AT LAW, BROUGHT WITHIN THE PERIOD, HAD
BEEN DISMISSED OR DISCONTINUED LATER.  SEE NEW YORK LIFE INS. CO. V.
SEYMOUR, 45 F.(2D) 47, 48; HARNISCHFEGER SALES CORP. V. NATIONAL LIFE
INS. CO., 72 F.(2D) 921, 925; NEW YORK LIFE INS. CO. V. TRUESDALE, 79
F.(2D) 481, 485, WITH WHICH CONTRAST NEW YORK LIFE INS. CO. V. MILLER,
73 F.(2D) 350, 355; THOMAS V. METROPOLITAN LIFE INS. CO., 135 KAN. 381,
387; 10 P.(2D) 864, AND POWELL V. MUTUAL LIFE INS. CO., 313 ILL. 161,
170; 144 N.E. 825.  WHETHER SUCH STATEMENTS GO TOO FAR WE ARE NOT
REQUIRED TO DETERMINE, FOR A SLIGHT VARIANCE IN THE FACTS, AS, E.G., IN
THE RULE PREVAILING IN THE JURISDICTION WHERE THE FINAL SUIT IS
BROUGHT, MAY HAVE A BEARING ON THE CONCLUSION.  AT LEAST IN SUCH
WARNINGS THERE ARE POSSIBILITIES OF DANGER WHICH A CAUTIOUS INSURER
WOULD NOT PUT ASIDE AS VISIONARY.  "WHERE EQUITY CAN GIVE RELIEF
PLAINTIFF OUGHT NOT TO BE COMPELLED TO SPECULATE UPON THE CHANCE OF HIS
OBTAINING RELIEF AT LAW."  DAVIS V. WAKELEE, 156 U.S. 680, 688.  TO
THIS MUST BE ADDED THE DANGER THAT WITNESSES MAY DISAPPEAR AND EVIDENCE
BE LOST.  A REMEDY AT LAW DOES NOT EXCLUDE ONE IN EQUITY UNLESS IT IS
EQUALLY PROMPT AND CERTAIN AND IN OTHER WAYS EFFICIENT.  BOYCE'S
EXECUTORS V. GRUNDY, 3 PET. 210; DREXEL V. BERNEY, 122 U.S. 241; WALLA
WALLA V. WALLA WALLA WATER CO., 172 U.S. 1; UNION PACIFIC R. CO. V.
WELD COUNTY, 247 U.S. 282, 287.  "IT MUST BE A REMEDY WHICH MAY BE
RESORTED TO WITHOUT IMPEDIMENT CREATED OTHERWISE THAN BY THE ACT OF THE
PARTY."  CABLE V. UNITED STATES LIFE INS. CO., SUPRA, AT P. 303.  HERE
THE INSURER HAD NO REMEDY AT LAW AT ALL EXCEPT AT THE PLEASURE OF AN
ADVERSARY.  THERE WAS NEITHER EQUALITY IN EFFICIENCY NOR EQUALITY IN
CERTAINTY NOR EQUALITY IN PROMPTNESS.  "THE REMEDY AT LAW CANNOT BE
ADEQUATE IF ITS ADEQUACY DEPENDS UPON THE WILL OF THE OPPOSING PARTY." 
BANK OF KENTUCKY V. STONE, 88 FED. 383, 391; CF. LINCOLN NATIONAL LIFE
INS. CO. V. HAMMER, 41 F.(2D) 12, 16.  TO MAKE A CONTRACT INCONTESTABLE
AFTER THE LAPSE OF A BRIEF TIME IS TO CONFER UPON ITS HOLDER
EXTRAORDINARY PRIVILEGES.  WE MUST BE ON OUR GUARD AGAINST TURNING THEM
INTO WEAPONS OF OPPRESSION. 

THE ARGUMENT IS MADE THAT THE SUITS IN EQUITY SHOULD HAVE BEEN
DISMISSED WHEN IT APPEARED UPON THE TRIAL THAT AFTER THE FILING OF THE
BILLS, AND IN OCTOBER, 1932, THE BENEFICIARIES OF THE POLICIES HAD SUED
ON THEM AT LAW.  BUT THE SETTLED RULE IS THAT EQUITABLE JURISDICTION
EXISTING AT THE FILING OF A BILL IS NOT DESTROYED BECAUSE AN ADEQUATE
LEGAL REMEDY MAY HAVE BECOME AVAILABLE THEREAFTER.  DAWSON V. KENTUCKY
DISTILLERIES CO., 255 U.S. 288, 296; LINCOLN NATIONAL LIFE INS. CO. V.
HAMMER, SUPRA; NEW YORK LIFE INS. CO. V. SEYMOUR, SUPRA.  THERE IS
INDEED, A POSSIBILITY THAT THE BRINGING OF ACTIONS AT LAW MIGHT HAVE
BEEN USED BY THE RESPONDENTS TO THEIR ADVANTAGE IF THEY HAD NOT CHOSEN
BY A STIPULATION TO THROW THE POSSIBILITY AWAY.  A COURT HAS CONTROL
OVER ITS OWN DOCKET.  LANDIS V. NORTH AMERICAN CO., 299 U.S. 248.  IN
THE EXERCISE OF A SOUND DISCRETION IT MAY HOLD ONE LAWSUIT IN ABEYANCE
TO ABIDE THE OUTCOME OF ANOTHER, ESPECIALLY WHERE THE PARTIES AND THE
ISSUES ARE THE SAME.  IBID.  IF REQUEST HAD BEEN MADE BY THE
RESPONDENTS TO SUSPEND THE SUITS IN EQUITY TILL THE OTHER CAUSES WERE
DISPOSED OF, THE DISTRICT COURT COULD HAVE CONSIDERED WHETHER JUSTICE
WOULD NOT BE DONE BY PURSUING SUCH A COURSE, THE REMEDY IN EQUITY BEING
EXCEPTIONAL AND THE OUTCOME OF NECESSITY.  CF. HARNISCHFEGER SALES
CORP. V. NATIONAL LIFE INS. CO., 72 F.(2D) 921, 922, 923.  THERE WOULD
BE MANY CIRCUMSTANCES TO BE WEIGHED, AS, FOR INSTANCE, THE CONDITION OF
THE COURT CALENDAR, WHETHER THE INSURER HAD BEEN PRECIPITATE OR ITS
ADVERSARIES DILATORY, AS WELL AS OTHER FACTORS.  IN THE END, BENEFIT
AND HARDSHIP WOULD HAVE TO BE SET OFF, THE ONE AGAINST THE OTHER, AND A
BALANCE ASCERTAINED.  LANDIS V. NORTH AMERICAN CO., SUPRA.  BUT
RESPONDENTS, AS ALREADY INDICATED, GAVE THAT POSSIBILITY AWAY.  THEY
STIPULATED THAT THE ISSUES IN EQUITY SHOULD BE TRIED IN ADVANCE OF
THOSE AT LAW, AND THAT ONLY SUCH ISSUES, IF ANY, AS WERE LEFT SHOULD BE
DISPOSED OF LATER ON.  THE CASES WERE ALLOWED TO STAND AS IF CHALLENGE
TO THE SUITS HAD BEEN MADE BY A DEMURRER ONLY.  SO CHALLENGED, THEY
PREVAIL. 

THE DECREE SHOULD BE REVERSED, AND THE CAUSE REMANDED TO THE COURT OF
APPEALS FOR A CONSIDERATION OF THE MERITS AND FOR OTHER PROCEEDINGS IN
ACCORD WITH THIS OPINION.  REVERSED. 

FN1  FROM THE FOURTH CIRCUIT:  JEFFERSON STANDARD LIFE INS. CO. V.
KEETON, 292 FED. 53, 54-56; JONES V. RELIANCE LIFE INS. CO., 11 F.(2D)
69, 70; BROWN V. PACIFIC MUTUAL LIFE INS. CO., 62 F.(2D) 711, 712; NEW
YORK LIFE INS. CO. V. TRUESDALE, 79 F.(2D) 481, 485; PACIFIC MUTUAL
LIFE INS. CO. V. PARKER, 71 F.(2D) 872, 874.  FROM THE FIFTH CIRCUIT:
JEFFERSON STANDARD LIFE INS. CO. V. MCINTYRE, 294 FED. 886, 888.  FROM
THE SIXTH CIRCUIT:  NEW YORK LIFE INS. CO. V. SEYMOUR, 45 F.(2D) 47,
48, 49; ROSE V. MUTUAL LIFE INS. CO. OF NEW YORK, 19 F.(2D) 280, 282. 
FROM THE SEVENTH CIRCUIT:  HARNISCHFEGER SALES CORP. V. NATIONAL LIFE
INS. CO., 72 F.(2D) 921, 922, 923.  FROM THE EIGHTH CIRCUIT:  PEAKE V.
LINCOLN NATIONAL LIFE INS. CO., 15 F.(2D) 303, 305, 306; LINCOLN
NATIONAL LIFE INS. CO. V. HAMMER, 41 F.(2D) 12, 17.  FROM THE NINTH
CIRCUIT:  MASSACHUSETTS BONDING & INS. CO. V. ANDEREGG, 83 F.(2D) 622,
625.  FROM THE TENTH CIRCUIT:  NEW YORK LIFE INS. CO. V. THOMPSON, 78
F.(2D) 946, 947(SEMBLE).  FROM THE DISTRICT OF COLUMBIA:  DENSBY V.
ACACIA MUTUAL LIFE ASSN., 64 APP. D.C. 319; 78 F.(2D) 203, 206. 

FN2  NEW YORK LIFE INS. CO. V. RIGAS, 117 CONN. 437; 168 ATL. 22;
EBNER V. OHIO STATE LIFE INS. CO., 69 IND. APP. 32; 121 N.E. 315; AETNA
LIFE INS. CO. V. DANIEL, 328 MO. 876; 42 S.W.(2D) 584; NEW YORK LIFE
INS. CO. V. COBB, 219 MO. APP. 609; 282 S.W. 494; NEW YORK LIFE INS.
CO. V. STEINMAN, 103 N.J. EQ. 403; 143 ATL. 529; AMERICAN TRUST CO. V.
LIFE INS. CO. OF VIRGINIA, 173 N.C. 558; 92 S.E. 706; PRUDENTIAL INS.
CO. V. TANENBAUM, 53 R.I. 355; 167 ATL. 147. 

FN3  "THE INSTANT CASE IS NOT ONE IN WHICH THERE IS RESORT TO EQUITY
FOR CANCELLATION OF THE POLICY DURING THE LIFE OF THE INSURED AND NO
OPPORTUNITY EXISTS TO CONTEST LIABILITY AT LAW.  NOR IS IT A CASE
WHERE, ALTHOUGH DEATH MAY HAVE OCCURRED, ACTION HAS NOT BEEN BROUGHT TO
RECOVER UPON THE POLICY, AND EQUITABLE RELIEF IS SOUGHT TO PROTECT THE
INSURER AGAINST LOSS OF ITS DEFENSE BY THE EXPIRATION OF THE PERIOD
AFTER WHICH THE POLICY BY ITS TERMS IS TO BECOME INCONTESTABLE." 
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